Estate of Hernandez-Rojas v. United States

• Decision Date: 29 September 2014
• Docket Number: Civil No. 11cv522 LDHB.
• Citation: 62 F.Supp.3d 1169
• Court: U.S. District Court — Southern District of California
• Parties: The ESTATE OF Anastacio HERNANDEZ–ROJAS, by its personal representative Daisy HERNANDEZ, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

62 F.Supp.3d 1169

The ESTATE OF Anastacio HERNANDEZ–ROJAS, by its personal representative Daisy HERNANDEZ, et al., Plaintiffs

v.UNITED STATES of America, Defendant.

Civil No. 11cv522 LDHB.

United States District Court, S.D. California.

Signed Sept. 29, 2014.

Eugene G. Iredale, Grace S. Jun, Julia Yoo, Iredale & Yoo, APC, Guadalupe Valencia, San Diego, CA, for Plaintiffs.

Storm Peyton Anderson, Barton H. Hegeler, Barton H. Hegeler, Attorney at Law, A.P.C., Charles V. Berwanger, Gordon and Rees, Dane Joseph Bitterlin, Hugh Anthony McCabe, Neil Dymott Frank McFall & Trexler, APLC, John P. McCormick, Konrad Muth Rasmussen, McCormick and Mitchell, Daniel R. Shinoff, William B. Shinoff, Stutz Artiano Shinoff and Holtz, Richard Tolles, Law Offices of Richard Tolles, San Diego, CA, Ann E. Harwood, Kristina L. Morrison, U.S. Attorney General, Phoenix, AZ, for Defendant.

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT [doc. nos. 145, 146, 147, 151, 152, 153, 184, 185, 197, 201]

M. JAMES LORENZ, District Judge.

Currently pending are the individual defendants' motions for summary judgment. The motions are fully briefed and are considered without oral argument.

I. Background

On March 23, 2012, Plaintiffs, the Estate of Anastacio Hernandez–Roja, which is for the benefit of the children of decedent (“Anastacio”), filed the operative third amended complaint (“TAC”). [ELECTRONIC CASE FILING ADMINISTRATIVE POLICIES AND PROCEDURES M # 53.] Plaintiffs assert fourteen causes of action: five of the causes of action are alleged constitutional violations under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the remaining nine are brought under the Federal Tort Claims Act and the Alien Tort Claims Act. Plaintiffs seek general and special damages, punitive damages, and injunctive or declaratory relief.

The initial complaint and the first amended complaint were brought against the United States of America and Does 1–50. The second amended complaint [doc. # 16] named individual defendants with a numbering system. In their joint motion for protective order, [doc. # 41], the parties agreed to use a “star numbering system for each of the individually named defendants at least through the discovery phase of litigation.” Id. at 2. The TAC continued the use of the numbering system. After a telephonic status conference with the magistrate judge, the requirement that the parties use a star numbering system for each individually named defendant was lifted, except as to defendant Gabriel Ducoing. (Order filed July 29, 2013. [doc. # 242] ) The magistrate judge ordered supplemental briefing with respect to the continued application of the star numbering system to defendant Ducoing. After full review of the matters presented, the magistrate judge found that the numbering system would no longer apply to Ducoing. In an effort to clarify the identities of the individual defendants, the Court will use the individual defendants' names rather than the star numbering system.¹

Plaintiffs allege that their father, Anastacio, a 42–year old Mexican national, died as a result of physical abuse by Defendants. (TAC ¶ 28.)² On May 28, 2010, United States Border Patrol agents arrested Anastacio and his brother on United States land near the Mexican border. (Id. ¶¶ 43–44, 46.) Those agents then transported the men to the Border Patrol Detention Facility and turned them over to two of the defendants, Border Patrol Agent Philip Krasielwicz (“Krasielwicz”) and Border Patrol Agent Gabriel Ducoing (“Ducoing”). (Id. ¶¶ 57, 59.)

After Ducoing ordered Anastacio to empty his water jug, the agent allegedly slapped the jug from Anastacio's hand. (TAC ¶¶ 62, 64.) Following Anastacio's complaint to the agent about the slap, Ducoing allegedly grabbed Anastacio, pushed him against a wall, and “repeatedly kicked the inside of Anastacio's ankles.” (Id. ¶¶ 65–67.) Anastacio requested medical treatment and an opportunity to appear before an Immigration judge. (Id. ¶¶ 72–73.) Ducoing did not comply with Anastacio's requests. (Id. ¶ 74.)

After being taken to the processing area, Anastacio complained to two Border Patrol agents about Ducoing's treatment and requested medical attention and the opportunity to appear before an Immigration Judge. (TAC ¶¶ 75–76.) Anastacio then reiterated his complaints and requests to Border Patrol Supervisor Ishmael Finn (“Finn”). (Id. ¶ 78.) In response, Finn ordered Krasielwicz and Ducoing to immediately remove Anastacio from the United States. (Id. ¶ 82.) The agents drove Anastacio to a border area known as “Whiskey 2,” took him out of the car, and allegedly pushed him against the car and “tried to throw him to the ground.” (Id. ¶¶ 86, 88.) Immigration Enforcement Agent Harinzo Naraisnesingh (“Narainesingh”) and Immigration Enforcement Agent Piligrino (“Piligrino”) arrived and struck Anastacio “repeatedly” with batons. (Id. ¶ 89.) Border Patrol Agent Derrick Llewellyn (“Llewellyn”) arrived and allegedly punched Anastacio “repeatedly.” (Id. ¶ 90.) The five agents threw Anastacio to the ground and handcuffed him. (Id. ¶ 91.) While Anastacio was lying on his stomach and in handcuffs, the agents allegedly “punched, kicked and stepped on Anastacio's head and body.” (Id. ¶ 92.)

While this was taking place, a group of civilians formed. (TAC ¶ 93.) The civilians took photographs and videos of the events and screamed for the agents to stop. (Id. ¶¶ 94–95.) Anastacio cried out for help and begged for the agents to stop. (Id. ¶ 98.) Plaintiffs allege that U.S. Customs and Border Protection Supervisor Ramon DeJesus (“DeJesus”) confiscated bystanders' phones and erased the photographs and videos. (Id. ¶ 96.)

Agents Alan Boutwell (“Boutwell”) and Kurt Sauer (“Sauer”), along with the five original agents on the scene, allegedly struck a Anastacio. (TAC ¶ 102.) After Border Patrol Supervisors Guillermo E. Avila (“Avila”) and Edward C. Caliri (“Caliri”) arrived, they allegedly “permitted and encouraged the agents to continue abusing Anastacio.” (Id. ¶¶ 103–105.) Customs and Border Patrol Officer Jerry Vales (“Vales”) shot Anastacio with his Taser gun four or five times. (Id. ¶ 107, 114.) Llewellyn, Boutwell, and Sauer then allegedly beat Anastacio and “ziptied his legs to his already handcuffed hands, putting him in a ‘hog tied’ position on his stomach.” (Id. ¶ 115.)

Plaintiffs allege that as a result of these events, Anastacio suffered a heart attack and ultimately died. (TAC ¶¶ 116, 118.) Dr. Glenn Wagner, San Diego County Chief Medical Examiner, performed an autopsy and ruled that the death was a homicide. (Plfs' Exh. 43.) Dr. Marvin Pietruszka performed another autopsy and found several injuries to Anastacio's body, including broken ribs and large hematomas

. (Plfs' Exh. 44.) Dr. Pietruszka also ruled the death a homicide and found “the cause of death to be lack of oxygen to the brain brought on by a heart attack.” (Id. ¶ 119.)

II. Summary Judgment Standard

Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(C) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322–23, 106 S.Ct. 2548. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

“The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Therefore, the court is not obligated “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citing Richards v. Combined Ins. Co. of Am.,

55 F.3d 247, 251 (7th Cir.1995) ). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating “that there is some metaphysical doubt as to the material facts.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995) (“The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient.”) (citing Anderson, 477 U.S. at 242, 252, 106 S.Ct. 2505 ). Rather, the nonmoving party must “go beyond the pleadings” and by “the depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.' ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e) ).

When making this...