Azevedo v. City Of Fresno

• Decision Date: 25 January 2011
• Docket Number: 1:09-CV-375 AWI DLB
• Parties: LAWRENCE AZEVEDO, Plaintiff, v. CITY OF FRESNO, CITY OF FRESNO POLICE DEPARTMENT, OFFICER KARR, and DOES 1 through 10, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

LAWRENCE AZEVEDO, Plaintiff,

v. CITY OF FRESNO, CITY OF FRESNO POLICE DEPARTMENT, OFFICERKARR, and DOES 1 through 10, inclusive, Defendants.

1:09-CV-375 AWI DLB

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: January 25, 2011

ORDER ON DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT (Doc. No. 68)

This case arises from the detention and arrest of Plaintiff Lawrence Azevedo by Fresno police officer Defendant Nathan Carr ("Carr") while Azevedo was staying at a residence on Weldon Avenue. Azevedo has brought suit under 42 U.S.C. § 1983 against Carr and the City of Fresno ("the City"). Carr and the City moved for summary judgment on all claims alleged against them, save for Azevedo's excessive force claim. The Court granted Carr's motion with respect to Azevedo's Fourth Amendment search and detention claims. The Court also granted summary judgment for the City on various Monell claims, with two exceptions. The Court assumed that Carr used excessive force and found genuine material disputes regarding inadequate training and the investigation of uses of force.

At the pre-trial conference, the recent Ninth Circuit opinion of Bryan v. Mc Pherson, 608 F.3d 614 (9th Cir. 2010), opinion withdrawn and replaced by, ---F.3d---, 2010 WL 4925422 (9th Cir. Nov. 30, 2010), ¹ was discussed. The Court vacated the trial date and instructed the parties to brief the impact of Bryan on Azevedo's excessive force and Monell claims. The Court instructed that this briefing would be treated like a second summary judgment motion to be brought by Defendants. The Court now has received and considered the additional briefing. For the reasons that follow, the Court will grant Carr qualified immunity, but deny summary judgment on the Monell issue.

FACTUAL BACKGROUND²

At 2:00 a.m. on November 7, 2007, Carr and his partner Juan Avila ("Avila") were on patrol in a marked police car. Carr observed an illegally parked motorcycle on the sidewalk in front of a house on Weldon Avenue. Carr recognized the motorcycle and helmet from a previous encounter in which the rider of the motorcycle successfully evaded Carr's attempt to effectuate a traffic stop. The registration on the motorcycle was expired, the license plate matched the plate of the motorcycle from the previous encounter, and Carr could find no VIN number.

Carr looked up the Weldon house on the patrol vehicle's computer and read that the house may be vacant, with the residents possibly out of town. There was overgrown vegetation, and the house appeared to be vacant. The house's front metal security screen door was wide open, the wooden front door appeared significantly damaged with a hole where the doorknob and lock set should have been, newspaper and cloth/curtains covered some of the front windows, other windows had no coverings, and a low light could be seen through the paper over the windows. The officers were concerned that there was a possible burglary or unlawful trespass, and that the motorcycle may have been stolen. The officers decided to make contact at the location in order to find the owner of the motorcycle and to investigate the house's security.

While approaching the front door, the officers noticed locking mechanism pieces, which appeared consistent with both the wood front door and metal screen door, laying on the porch and in the flower bed. Carr also noticed a glove next to the broken lock which is consistent with someone unlawfully entering a house.

Carr knocked on the wood front door, and it immediately swung open since it was not secured. Carr announced, "Fresno Police." A large dog then immediately began to growl and bark, and aggressively advanced on Avila. While Carr was yelling at the dog, Azevedo came outside the threshold of the front door, and Carr told him to get his dog. Azevedo called his dog, and it stopped in its tracks and turned, then Azevedo heard a gunshot. Avila fired a shot at the dog in response to the dog's aggression, but missed the dog. Azevedo then walked down and grabbed his dog. Carr told Azevedo to put the dog in the house and to close the door. Azevedo picked up the dog and took it inside the house.

The officers asked Azevedo to step outside the gate and ordered him to sit on the curb. Azevedo was being detained while the officers investigated a possible burglary, trespass, squatting, and stolen motorcycle.

When Carr and Avila were questioning Azevedo, Azevedo seemed extremely nervous. DUMF 1. Neither officer told Azevedo to keep his hands visible while he was sitting on the curb. Azevedo Dec. ¶ 5.³ Azevedo was reaching his hand into his waistband where Carr could see a bulge. DUMF 1. Avila asked Azevedo if Azevedo had any weapons. Id.⁴ When asked by Avila if he had any weapons on him, Azevedo suddenly jumped up and ran. See DUMF 2. Azevedo ran almost immediately after he sat down on the curb. PUMF 28.

As Azevedo was running from the officers, Carr told Azevedo to stop. See Schaaf Depo. at 9:23-25; Molina Depo. 26:14-16; Carr Dec. ¶ 11.⁵ Azevedo was focused on trying to run, and he continued to run after being told to stop. See Carr Dec. ¶ 11; Avila Dec. ¶ 8; PRDUMF 3. Azevedo has no recollection of Carr yelling "stop" since he was focused on running. See DUMF 4; Azevedo Depo. 91:11-25.

Carr was concerned because it was clear to him that, even after being given repeated commands to stop, Azevedo was not going to stop. DUMF 7. Carr had on his full gear and was tired from trying to keep up with Azevedo. Id.⁶ Also, Carr believed that Azevedo had fled from him on a prior occasion. Id. Carr was concerned for his safety and believed that he would be at a disadvantage if he had to fight with Azevedo and thus, Carr opted to use the Taser. See id. Azevedo was struck with the Taser darts in the upper and middle back, and he immediately fell forward. DUMF 8.⁷

Carr deployed the taser while running after Azevedo at full speed and over concrete. See PUMF 32. Carr had been gaining on Azevedo and got within 3 to 4 feet of him. See PUMF 36.⁸Azevedo was neither assaultive nor combative before Carr used the taser. PUMF 33. Carr never saw anything that looked like a weapon in Azevedo's possession prior to using the taser. See PUMF 34. Azevedo was not reaching into his waistband. PUMF 35.⁹ The officers did not tell Azevedo that he was under arrest before Carr deployed the taser. See PUMF 39. Carr had no information that Azevedo had committed any felonies that night. See PUMF 17. Azevedo does not deny that he was tased, but claims that he put his arms out and broke his fall, i.e. "from hitting directly full face, " Azevedo Depo. 92:17-21, after which he was lifted up by his belt and dropped and then everything went black. DUMF 9.

After taking Azevedo into custody, the officers found a small black zipper bag protruding from Azevedo's right front pants pocket. See DUMF 10. The black zipper bag contained hypodermic syringes, a metal spoon, and a medicine vial with methamphetamine. See id. Prior to taking Azevedo into custody, Carr had no information that Azevedo had committed any felonies. See PUMF 17. Azevedo suffered multiple facial fractures/injuries that required hospitalization and surgery. See PUMF's 42-45. No criminal charges were ever filed against Azevedo arising out of the incident. PUMF 46.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summaryjudgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'"...