Elkins v. Cal. Highway Patrol

Decision Date06 July 2016
Docket NumberCASE NO. 1:13-CV-1483 AWI SAB
PartiesESTATE OF CECIL ELKINS, JR., et al., Plaintiffs v. CALIFORNIA HIGHWAY PATROL, et al., Defendants
CourtU.S. District Court — Eastern District of California

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This case stems from a fatal confrontation between decedent Cecil Elkins, Jr. ("Elkins") and the last remaining defendant, California Highway Patrol ("CHP") Officer Hipolito Pelayo ("Pelayo"). Plaintiffs are the estate and family members of Elkins, and they allege various claims under 42 U.S.C. § 1983 and California state law. Pelayo now moves for summary judgment on the claims against him. For the reasons that follow, Pelayo's motion will be granted.

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 (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 (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 non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale 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. Herbert 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 (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; Matsushita, 475 U.S. at 587; 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. Summary judgment may not be granted "where divergent ultimate inferences may reasonably be drawn from the undisputed facts." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015); see also 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 Fitzgerald v. El Dorado Cnty., 94 F.Supp.3d 1155, 1163 (E.D. Cal. 2015); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008). ""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; 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

On the evening of November 11, 2012, Elkins led City of Tulare police officers on a high speed vehicle chase after an officer saw Elkins burglarizing a car in the Tulare County Fairgrounds parking lot. DUMF 1. The vehicle pursuit ended after Elkins crashed his truck into a walnut orchard, but Elkins successfully fled from the officers on foot. See id.

On November 12, 2012, at 6:55 a.m., Elkins had an encounter with members of the City of Tulare Police Department. See Marvin Dec. ¶¶ 1, 7-17. Elkins ran from Officer Chris Marvin into a stolen car that was parked in a driveway. See id. at ¶¶ 7-11, 15. A Tulare Police patrol vehicle arrived and parked behind Elkins's stolen car. See id. at ¶ 11. Elkins then drove in reverse at ahigh speed into the occupied patrol vehicle. See id. at ¶ 12.2 Officer Marvin drew his firearm and ordered Elkins to stop. See id. at ¶¶ 13-14. Elkins quickly accelerated his vehicle towards Officer Marvin. See id. at ¶ 14. Officer Marvin had to jump "a couple of feet" to avoid being hit by Elkins's car. See id. Elkins's car came within a foot of hitting Officer Marvin. See id. Officer Marvin discharged his firearm nine times at Elkins, as Elkins fled in the stolen car. See id. at ¶ 15. Two of Officer Marvin's shots appear to have hit Elkins in the arm. See Romero Dec. ¶ 28; Short Depo 55:10-56:3;3 see also PUMF 1. Elkins drove the car through two yards (including fences) before crashing the car into a tree in a residential yard. See Marvin Dec. ¶ 16 & Ex. A. Elkins exited the car, ran to another car that was nearby and had been left running, and fled the scene in that car. See id. at ¶ 17. This stolen vehicle was later found totally burned-out. See id.

The two Tulare police officers eventually identified Elkins as the person involved in the assaults against them, and Officer Marvin was 100% certain of Elkins's identity after he identified Elkins in a photo-lineup. See DUMF 5; Marvin Dec. ¶ 20. Due to Elkins's violent behavior towards the two officers and the lateness of the day by the time Elkins had been identified, it was decided to wait until daylight the next day (November 13, 2012) to pursue and apprehend him. See DUMF 6; Kelly Depo. 23:21-24:11.

On November 13, 2012, Elkins was wanted by the Tulare Police Department for attempted homicide on a Tulare police officer. JUMF 7. Tulare Police Sergeant Fred Ynclan ("Ynclan") requested the assistance of the Tulare County Agencies Regional Gang Enforcement Team ("TARGET") in conducting surveillance on Elkins at a location in the town of Pixley, California. See DUMF 9; PUMF 4. Pelayo was assigned to TARGET, which is a multi-agency law enforcement task force. See DUMF 8; PUMF 5.

A briefing took place on November 13, 2012 at 2:00 p.m. at the Tulare County Sheriff'sDepartment substation in Pixley concerning the need for surveillance and apprehension of Elkins that day. DUMF 10; see also PUMF 6. The briefing was led by Ynclan, and was attended by inter alia Pelayo, Tulare Police Detective Jesse Guzman ("Guzman"), Special Agent Frank Navarro, and Commander Michael Haroldsen. See DUMF 11. All attendees of the briefing were informed: (1) Elkins was wanted for serious crimes, including ramming a police car two times and attempting to run over another police officer, which caused the officer to fire shots; (2) Elkins might be using methamphetamine; and (3) Elkins would likely do "whatever it takes to get away from law enforcement." See DUMF's 22, 23. The attendees were requested to set up surveillance at the home of Elkins's father in Pixley to see if Elkins could be located there. DUMF 24. The plan was to use TARGET to conduct surveillance on Elkins and then have SWAT apprehend Elkins if he was confirmed to be at the location. DUMF 25. All attendees were given a booking photo of Elkins and a "Be On the Lookout - Officer Safety" bulletin ("BOLO") concerning Elkins. See DUMF's 12, 13. The BOLO stated that on November 12, 2012: (1) Elkins had been identified driving a stolen vehicle, had fled on foot, and then fled away from Officer Marvin in a stolen car; (2) Elkins had attempted to ram an occupied marked police car by driving it in reverse into the police car; (3) Elkins then drove his vehicle forward towards Officer Marvin; (4) Officer Marvin fired several shots at Elkins; and (5) Elkins fled in an additional stolen vehicle that was later found burned-out near Pixley. See Pelayo Dec. Ex. F; DUMF's 14-17. The BOLO also stated that Elkins...

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