Booke v. Cnty. of Fresno

• Decision Date: 02 April 2015
• Docket Number: Case No. 1:13–CV–586 AWI SAB.
• Citation: 98 F.Supp.3d 1103
• Court: U.S. District Court — Eastern District of California
• Parties: Esperanza BOOKE, individually and as personal representative of the Estate of Charles Salinas, Plaintiff v. COUNTY OF FRESNO, et al., Defendants.

98 F.Supp.3d 1103

Esperanza BOOKE, individually and as personal representative of the Estate of Charles Salinas, Plaintiff

v.COUNTY OF FRESNO, et al., Defendants.

Case No. 1:13–CV–586 AWI SAB.

United States District Court, E.D. California.

Signed April 2, 2015.

Robert Steven May, Garrett David May, The May Firm, San Luis Obispo, CA, Laura M. Sasaki, Law Office of Robert Hamparyan, San Diego, CA, for Plaintiff.

Dale Long Allen, Jr., Kevin P. Allen, Allen Glaessner & Werth LLP, San Francisco, CA, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ANTHONY W. ISHII, Senior District Judge.

This case stems from a fatal confrontation between decedent Charles Salinas (“Salinas”) and members of the City of Sanger Police Department (“SPD”)—Defendants Jason Boust (“Boust”), Preston Little (“Little”), Robert Pulkownik (“Pulkownik”), and Angela Yambupah (“Yambupah”). Plaintiff alleges claims under 42 U.S.C. § 1983 and California state law against these officers, as well as against SPD Chief Rodriguez (“Chief Rodriguez”) and the City of Sanger (“the City”). Defendants now move for summary judgment on all claims alleged against them. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

SUMMARY JUDGMENT FRAMEWORK

Summary judgment is proper 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 ; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Fortyune v. American Multi–Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). The party seeking summary judgment 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir.2009). A dispute is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.2010).

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. Hebert Schenk, P.C., 523 F.3d 915, 923 (9th Cir.2008) ; Soremekun, 509 F.3d at 984. “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 & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105–06 (9th Cir.2000). 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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.' ” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 ; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir.2010). While a “justifiable inference” need not be the most likely or the most persuasive inference, a “justifiable inference” must still be rational or reasonable. See Narayan, 616 F.3d at 899. “If conflicting inferences may be drawn from the facts, the case must go to the jury.” Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir.2003). Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D.Cal.2008) ; UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D.Cal.2004). “A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial.” del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir.2002) ; see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir.2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir.2010). Further, a “motion for summary judgment may not be defeated ... by evidence that is ‘merely colorable’ or ‘is not significantly probative.’ ” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 ; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir.2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

FACTUAL BACKGROUND¹

At about 3:00 p.m. on June 15, 2012, Salinas called 911 because he was emotionally distraught and suicidal. PUMF 1. The 911 operator relayed information to City police units via radio throughout the conversation with Salinas. See Clark Report at p. 5; Allen Dec. Ex. A; PUMF 2. The following information was relayed from the 911 call to the City police: (1) there was a suicidal male named Charles Salinas at 1120 N St. with a 9mm handgun and two knives; (2) Salinas had been drinking and refused to put away his weapons; (3) Salinas “will not hurt anyone he just wants the units to shoot him”; (4) Salinas “will jump [towards] the officer just to provoke them to shoot him,” but again “he will not hurt anyone he just wants the units to shoot him.” See DUMF 1, 2, 3, 4; PUMF 2, 3.

SPD officers Boust, Little, and Yambupah initially responded to the call. See DUMF 6. Pulkownik also responded, but arrived later. See DUMF's 30–32. Boust (as the ranking officer) gave orders to Little and Yambupah to block off nearby traffic, form a perimeter, deploy their AR–15 patrol rifles, and radio in if anyone saw Salinas. See DUMF's 9, 10, 11; PUMF's 5, 6. A perimeter was established in part because the dispatch call concerned a suspect with a gun and knives, Salinas's exact location was unknown, and it was daylight near a major street. See PUMF 12. When Pulkownik arrived, he retrieved his less lethal shotgun. See DUMF 33, PUMF 7.

Yambupah was the first officer to see Salinas. See PUMF 8. Salinas was walking fast and leaning towards Yambupah. See DUMF 16. Eventually, Yambupah lifted her rifle towards Salinas, and Salinas ran away. See DUMF's 19, 20. Yambupah lost sight of Salinas as he was entering a parking lot from an alley. PUMF 9. Yambupah followed after Salinas. See DUMF 23. Thinking that Salinas might be hiding in an auto shop in the area, she approached the shop and spoke to two people inside.See DUMF's 24, 25; PUMF 10. Yambupah then heard Pulkownik's voice shouting from the other end of the parking lot. See DUMF 26; PUMF 10. Yambupah saw Pulkownik standing at the front entrance of the parking lot. See DUMF 27. Yambupah took cover behind a building and requested backup. See DUMF 29.

Pulkownik had located Salinas lying in bushes in an elevated planter in the parking lot. See DUMF 42; PUMF 12; Plaintiff's Ex. LL. Pulkownik yelled at Salinas, “Show me your hands!” See PUMF 27; DUMF 13. Pulkownik had his handgun drawn, but then holstered the handgun and engaged the bean-bag shotgun. See PUMF's 13, 14. Pulkownik placed himself about 5 to 10 feet directly in front of the planter. See PUMF 15. Salinas was unresponsive initially, but he eventually sat up in a sitting position. See DUMF's 45, 47. Pulkownik could see Salinas's head, a little bit above the shoulder line, Salinas's blue jeans including the shins and groin area, and could see shadows and movement from Salinas's arms. See Pulkownik Depo. 28:21–29:13. Pulkownik continued to order Salinas to show his hands. See id. at 29:24–30:1. Salinas “flipped off” Pulkownik with both hands. See McCahill Depo. 48:16–25, 50:1–7. Salinas's right hand then reached to a nearby bush. See id. at 50:1–7; Pulkownik Depo. 29:2430:6. Salinas was saying things to Pulkownik, and Pulkownik eventually realized that Salinas was saying that he was a veteran and was giving his name, rank, and serial number. See id. at 30:1222. Pulkownik began to talk to Salinas about the military/the Marines, and addressed Salinas as a Marine. See id. at 31:16–32:4.

At some point while Pulkownik was interacting with Salinas, backup arrived. DUMF 51. Fresno County Sheriff's Deputy McCahill (who had heard the dispatch broadcast) arrived at the planter, followed by Boust and Yambupah. See DUMF 52; PUMF 16. McCahill stood to the right of Pulkownik, Boust stood to the right of McCahill, and Yambupah stood next Boust. DUMF 53. Little then joined the firing line and stood to the left of Pulkownik. PUMF...