Brown v. Grinder

• Decision Date: 22 January 2019
• Docket Number: No. 2:13-cv-01007-KJM-KJN,2:13-cv-01007-KJM-KJN
• Court: U.S. District Court — Eastern District of California
• Parties: SHAWNA BROWN, individually and as successor-in-interest for Decedent LUTHER BROWN; A.B., a minor, by and through her guardian ad litem, SHAWNA BROWN; D.P., a minor, by and through her guardian ad litem, RITA ALMENDAREZ; A.B., a minor, by and through her guardian ad litem, RITA ALMENDAREZ; D.P., a minor, by and through his guardian ad litem, RITA ALMENDAREZ; S.S.J., a minor, by and through her guardian ad litem, GAYLE JOHNSON; and QUEEN E. BROWN, individually, Plaintiffs, v. WESLEY GRINDER, individually; RYAN TAIARIOL, individually; LOREEN GAMBOA, individually; 'FNU' SCOTT, individually; and DOES 1-50, inclusive, Defendants.

SHAWNA BROWN, individually and as successor-in-interest for Decedent LUTHER BROWN;A.B., a minor, by and through her guardian ad litem, SHAWNA BROWN;D.P., a minor, by and through her guardian ad litem, RITA ALMENDAREZ;A.B., a minor, by and through her guardian ad litem, RITA ALMENDAREZ;D.P., a minor, by and through his guardian ad litem, RITA ALMENDAREZ;S.S.J., a minor, by and through her guardian ad litem,GAYLE JOHNSON; and QUEEN E. BROWN, individually, Plaintiffs, v. WESLEY GRINDER, individually; RYAN TAIARIOL, individually; LOREEN GAMBOA,individually; 'FNU' SCOTT, individually; and DOES 1-50, inclusive, Defendants.

No. 2:13-cv-01007-KJM-KJN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 22, 2019

ORDER

On April 6, 2012, defendants Stockton Police Officers Wesley Grinder and Ryan Taiariol stopped a car driven by plaintiffs' decedent, Luther Brown. Brown, who was on searchable probation, submitted to a search of his person and then fled on foot before officers could search his car. Defendants pursued Brown. A struggle ensued, which ended with Grinder shooting Brown to death. See First Am. Compl. (FAC) ¶¶ 1, 18-19, ECF No. 29. Plaintiffs, relatives of Brown, sue under 42 U.S.C. § 1983, alleging excessive force in violation of the Fourth Amendment, violation of plaintiffs' rights to familial relationship under the Fourteenth Amendment, and state law claims. Id. ¶¶ 31-49. Defendants move for summary judgment on all of plaintiffs' claims, including plaintiffs' request for punitive damages. Mot. Summ. J. (Mot.), ECF No. 69-2. For the reasons stated below, defendants' motion is DENIED, with the clarification that plaintiff Queen E. Brown proceeds only on her Fourteenth Amendment substantive due process claim of deprivation of familial association.

I. BACKGROUND

A. Disputed and Undisputed Facts

The following facts derive from both parties' statements of undisputed facts, the parties' responses to those statements, evidence cited in those statements, and the court's review of the record. See Defs.' Reply re: Undisputed Facts (DF), ECF No. 78-1;¹ Defs.' Resp. to Pls.' Undisputed Facts (PF),² ECF No. 78-2. The court notes and resolves evidentiary objections below and otherwise to the extent necessary as they arise.

1. Evidentiary Objections

a. Defendants' Objections to Deposition Testimony

Defendants object to plaintiffs' reliance on the depositions of Grinder, Taiariol, Velazquez and Looney based on plaintiffs' identifying only page numbers, without pinpoint line cites. Objs. at 2-6, ECF No. 78-3. Defendants cite Orr v. Bank of America, NT & SA, 285 F.3d 764, 775 (9th Cir. 2002), in which the court held "that when a party relies on depositiontestimony in a summary judgment motion without citing to page and line numbers, the trial court may in its discretion exclude the evidence." Although plaintiffs have not provided line numbers on the deposition pages they cite, the court finds plaintiffs' page citations in this circumstance enable the court to readily find the relevant testimony and thus avoid the need to "paw over the files without assistance from the parties." See Huey v. UPS, Inc., 165 F.3d 1084, 1085 (7th Cir. 1999). The court declines to exclude this evidence on these grounds.

Defendants also object to the entirety of the deposition testimony of Velazquez and Looney, asserting that this testimony "should be disregarded as implausible and not sufficiently reliable for this Court to consider on summary judgment." Objs. at 3-8. Although defendants cite some conflicts in the deposition testimony when compared to the video evidence and other facts of record, these are the kinds of conflicts amenable to a factfinder's determinations of the credibility of Velazquez and Looney and the weight assigned to their testimony. The court will not exclude the entirety of Velazquez and Looney's testimony. See Lam v. City of San Jose, 869 F.3d 1077, 1085 (9th Cir. 2017) (affirming district court's conclusion "that the jury was entitled to give [the witness's] testimony weight" despite acknowledging that witness's testimony "could not, in some respects, be reconciled with the physical or documentary evidence").

Defendants' last objection to the deposition testimony of Velazquez and Looney focuses on deposition pages filed with the court but not cited in plaintiffs' opposition. Objs. at 5, 6, 8-9. The court has discretion to review all deposition excerpts provided by the parties rather than limiting its review to the specific excerpts the parties cite. See Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1031 (9th Cir. 2001) ("[T]he district court may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers"; court also "has discretion in appropriate circumstances to consider other materials" though "it need not do so"); cf. Orr, 285 F.3d at 775 (discretion to exclude deposition testimony without citation to page and line numbers). Accordingly, the court need not exclude portions of deposition transcripts not cited in plaintiffs' brief. To the extent defendantscomplain the uncited portions are irrelevant, a court "cannot rely on irrelevant facts [in deciding a summary judgment motion], and thus relevance objections [to evidence] are redundant." See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006).

b. Defendant's Objections to Exhibits

Defendants raise multiple objections to Exhibits E and F to plaintiffs' declaration provided in opposition to summary judgment. Objs. at 9-12. Where plaintiffs do not cite these exhibits in their briefing, the court does not rely on them in considering the parties' arguments, given plaintiffs' failure to "cit[e] to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1). One exhibit plaintiffs do reference but only in passing without meaningful explanation, and which the court does not consider, is Roger Clark's expert report, Exhibit F. See Opp'n Mot. Summ. J. (Opp'n), ECF No. 70,³ at 19:19-24 (citing Nisenbaum Decl., Ex. F (Clark Report), ECF No. 71-6).

Plaintiffs cite to only two portions of the materials provided in Exhibit E, referring to an Officer Involved Shooting (OIS) Report and the San Joaquin County Coroner's Report. First, plaintiffs cite one page from the OIS Report in support of the proposition that "Grinder did not tell OIS investigators that Mr. Brown took a fighting stance during his interview hours after shooting, and Defendant Taiariol testified that when Mr. Brown was able to stand he turned to the south away from the officers as though to retreat." See Opp'n at 9 (citing Nisenbaum Decl., Ex. A (Grinder Dep.), ECF No. 71-1, at 121, 129; Nisenbaum Decl., Ex. E (OIS Report), ECF No. 71-5, at 217);⁴ Nisenbaum Decl., Ex. B (Taiariol Dep.), ECF No. 71-2, at 82-83). Second, plaintiffs cite multiple pages of a "Coroner's Report" as support for the proposition that Grinder "shot [Brown] nine times causing Mr. Brown to die." Id. (citing Nisenbaum Decl., Ex. E (Coroner's Report), ECF No. 75-5, at 10-14, 17). Defendants do not object specifically to thecourt's reliance on the pages of the Coroner's Report, but do object to all of Exhibit E because it "[l]acks foundation, is speculative and not based on personal knowledge," lacks "authentication or foundation," and the documents are hearsay, and reflect multiple levels of hearsay. Objs. at 9. Defendants object specifically to the OIS Report on those grounds. Objs. at 12. Yet as noted above, the court may consider evidence that will be "admissible at trial," Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003), a status depending not on the form of evidence, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Defendants fail to explain why plaintiffs could not admit these two documents at trial through an authoring witness. The court exercises its discretion in declining to exclude this evidence.

2. Undisputed Facts

On April 6, 2012, defendants Grinder and Taiariol were working together on duty as police officers employed by the City of Stockton. DF 1, 2. Grinder was driving a marked Stockton Police Department patrol car. DF 5. Grinder and Taiariol initiated a traffic stop of a vehicle that lacked a front license plate in violation of California Vehicle Code section 5200. DF 4-5; PF 11. Decedent Brown was driving that vehicle. DF 8. Grinder approached the driver's side of the vehicle, and Taiariol approached the passenger's side. DF 7. Grinder obtained Brown's driver identification and asked Brown if he was on probation or parole. DF 8-9. According to Grinder, Brown responded by stating he was on probation for "domestic." DF 10. After confirming that Brown was on searchable probation, Grinder asked Brown to step out of the vehicle to initiate a search of Brown and Brown's vehicle. DF 11-12. Grinder's search of Brown's person revealed no weapons. DF 13; PF 14.

Grinder then asked Brown to walk to the curb so the officers could search Brown's car. DF 14. Brown began walking toward the curb where Taiariol stood, but then suddenly ran away from Taiariol. See DF 15. Taiariol ran after Brown on foot. DF 16. Brown continued running away from Taiariol, cutting through nearby yards. DF 19. Brown then attempted to scale a fence between two duplex residences. DF 20. Taiariol grabbed Brown as he attempted to scale the fence, and began to struggle with Brown. DF 21, 23. Taiariol tried to control Brown, butBrown pulled away. DF 25. At some point, while trying unsuccessfully to gain control of Brown, Taiariol punched Brown in the face about five to six times; he also hit Brown with both hands and with his baton. DF 27-29; PF 8.

During the chase, Grinder drove the patrol car into the front yard of one...