McKay v. City of Hayward

• Decision Date: 11 June 2013
• Docket Number: Case No. 12–cv–01613 NC.
• Citation: 949 F.Supp.2d 971
• Parties: China McKAY, and others, Plaintiffs, v. CITY OF HAYWARD, and others, Defendants.
• Court: U.S. District Court — Eastern District of California

949 F.Supp.2d 971

China McKAY, and others, Plaintiffs,

v.CITY OF HAYWARD, and others, Defendants.

Case No. 12–cv–01613 NC.

United States District Court,

N.D. California,

San Francisco Division.

June 11, 2013.

Matthew D. Davis, Doris Cheng, Walkup Melodia Kelly Wecht & Schoenberger, San Francisco, CA, for Plaintiffs.

Rafael Enrique Alvarado, Jr., Hayward City Attorney's Office, Hayward, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

NATHANAEL M. COUSINS, United States Magistrate Judge.

Hayward Police Officers used a police dog to track an armed suspect who fled after robbing a Domino's Pizza at night. Nicky, a Dutch Shepherd trained to bite and hold, guided the officers to an eight-foot wall. Police Officer Loring Cox, without warning, lifted Nicky over the wall and lowered him on a thirty-three-foot leash into the backyard of a mobile home. Jesse Porter, an 89–year–old who resided in the mobile home and had no connection to the robbery, was alone in his backyard. Nicky bit Porter on the leg, leaving a gaping hole. The wound later became infected, and doctors amputated Porter's leg above the knee. Two months after the bite, Porter died. Porter's children and estate sued Hayward, Officer Cox, and the two other officers involved, alleging violations of his constitutional rights and various state law claims. Those defendants now move for summary judgment.

The central issue is whether plaintiffs have shown that a jury could conclude that Officer Cox's conduct was unreasonable under the circumstances. The other issues to be resolved are (1) whether the officers are entitled to immunity for plaintiffs' federal and state law claims; and (2) whether the City of Hayward is liable for the allegedly unconstitutional and tortious conduct of its employees. After considering the parties' arguments and submissions, the Court GRANTS IN PART AND DENIES IN PART defendants' motion for summary judgment.

I. BACKGROUND

A. Facts

On May 29, 2011, Jesse Porter was bitten by Nicky, a police service dog handled by Officer Loring Cox, a member of the Hayward Police Department. Pls.' Opp'n, Ex. 7, Dkt. No. 43 at 14. Mr. Porter was in his own backyard when Officer Cox lowered Nicky over an eight-foot wall into the yard, without warning, in order to pursue a scent. Cox Decl., Dkt. No. 27–3 ¶¶ 22–24. Nicky's bite left a gaping hole in the calf muscle of Mr. Porter's left leg, exposing tendons and muscle. Pls.' Opp'n, Ex. 6, Dkt. No. 48 at 15.

At approximately 10:52 p.m., the Hayward Fire Department and American Medical Response arrived to provide medical care to Mr. Porter. Pls.' Opp'n, Ex. 7, Dkt. No. 43 at 14. He was transported to Eden Medical Center, where he received treatment for his wound. Pls.' Opp'n, Ex. 6, Dkt. No. 43 at 15. Mr. Porter's leg became gangrenous and had to be amputated above the knee on June 10, 2011. Pls.' Opp'n, Dkt. No. 46 at 6. Mr. Porter then went into a residential care facility, where he died on July 27, 2011. Id.

The night that Officer Cox and Nicky entered Mr. Porter's yard, they were responding to an armed robbery of a nearby Domino's Pizza. At 10:30 p.m., dispatch received a call that an armed robbery had just occurred. Pls.' Opp'n, Ex. 8, Dkt. No. 43 at 18. Responding to such a call is categorized as “high-priority” by the Hayward Police Department. Fovel Decl., Dkt. No. 43 at 25:20. The victim stated that the suspect was armed with a handgun and had fled from the Domino's heading north out the door, at which point the victim lost sight of him. Id. at 31:1, 6; 31:17–22.

Officer Cox and Nicky arrived on the scene at 10:35 p.m. Fovel Depo., Dkt. No 43 at 29:10–20; Dkt. No. 43 at 19. Officers Robert Purnell and Michael Miller arrived shortly thereafter. Cox Decl., Dkt. No. 27–3 ¶ 13. At 10:38 p.m., Officer Cox and Nicky began their track, with Officers Purnell and Miller, acting as “cover” officers. Id. ¶¶ 13, 15. After trailing a scent from the pizza shop, Nicky took a right turn off of West Winton Avenue and sprinted down a commercial driveway. Cox Decl., Dkt. No. 27–3 ¶¶ 18–19. Nicky stopped when he reached an eight-foot-high concrete wall at the rear of the business complex, which separates the complex from a residential mobile home park, and pawed at the wall. Id. ¶¶ 19–20.

At this point, Officer Cox stood on a wooden pallet to look over the wall and “saw the backyards of several mobilehomes and landscaping.” Id. ¶ 21. Cox decided to lower Nicky into the backyard. Id. ¶ 22. He chose to send the dog over the wall before cover officers scaled the wall in order to protect the officers' safety and preserve the integrity of the scent. Id. ¶ 22. Cox did not announce his presence or the deployment of Nicky because the suspect had fled the scene and was thought to possess a handgun. Id. ¶ 23.

Officer Cox and Officer Purnell gave inconsistent statements about whether Nicky was supervised in the yard. Cox states that he lowered Nicky over the wall and onto the ground by his leash, which was thirty-three feet long. Id. ¶ 24. Cox also states that Nicky remained lying down once he reached the ground until Cox jumped down off the wall into Mr. Porter's backyard. Id. ¶¶ 24–25. Once Cox was in the backyard, he gave Nicky the command to “track.” Id. ¶ 25.

Officer Purnell testified that Nicky was searching Mr. Porter's yard unsupervised, and that Cox was still standing on the wooden pallet, on the side of the wall closest to the business complex, when Cox announced that it sounded like Nicky had apprehended the suspect. Purnell Decl., Dkt. No. 43 at 44:14–18. Purnell states that Cox did not go over the wall and enter Mr. Porter's backyard until after Cox announced the bite. Id. at 45:12–15.

B. Procedural History

Plaintiffs China McKay and Jesse Porter, Jr. are Mr. Porter's biological children. Dkt. No. 1 ¶ 8. Jesse Porter, Jr. is also the personal representative of Mr. Porter's estate. Id. Plaintiffs sued the City of Hayward, former Police Chief Ron Ace, Officer Cox, Officer Miller, and Officer Purnell in this Court on March 3, 2012. Dkt. No. 1. The complaint alleged (1) that Officers Cox, Purnell, and Miller seized Mr. Porter with excessive force in violation of his Fourth Amendment rights; (2) that the City of Hayward was liable for the officers' unreasonable seizure; (3) that defendants' actions deprived plaintiffs of the companionship of their father without due process; as well as (4) constitutional violations under California Governance Code § 52.1; (5) assault and battery; (6) intentional inflictionof emotional distress; (7) negligence; (8) wrongful death; (9) negligence per se under California Civil Code § 3342; and (10) that the City of Hayward was liable for the negligent and tortious actions of its employees. See generally Dkt. No. 1.

Defendants filed an answer and then moved for summary judgment. Dkt. Nos. 4, 27. Plaintiffs opposed defendants' motion. Dkt. No. 46. They also dismissed plaintiff Jonathan Porter Brown, Mr. Porter's step son, from the action, dismissed all claims against former Police Chief Ron Ace in his official capacity, and dismissed their claims under California Civil Code § 3342 against Officers Cox, Purnell, and Miller. Id. at 2. The Court held a hearing on the summary judgment motion on May 29, 2013. Dkt. No. 61. Plaintiffs have since dismissed their state law claims for excessive force under California Civil Code § 52.1 and intentional infliction of emotional distress. Dkt. No. 63 at 2.

C. Jurisdiction

This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. The parties consented to the jurisdiction of a magistrate judge under 29 U.S.C. § 636(c). Dkt. No. 5 at 8.

D. Objections to Evidence

Federal Rule of Civil Procedure 56(c) allows parties to object to inadmissible evidence cited to support or dispute a fact. Plaintiffs and defendants each object to certain evidence relied upon in their respective briefs.

1. Deposition Testimony of Sergeant Raymond Sisson

Defendants object to plaintiffs' reliance on several parts of the testimony of Sergeant Sisson, who is the K–9 Unit Supervisor. They assert that Sisson's testimony lacks foundation, personal knowledge, and is irrelevant. The parts of the testimony at issue involve his responses to questions about his role as supervisor of the K–9 Unit. Dkt. No. 52 ¶¶ 1, 9, 10, 12. Specifically, Sisson testified about whether he reviewed Nicky's training records with Cox and best practices for using a police dog in a residential area. Sisson stated that he has weekly meetings with the officers of the K–9 unit to discuss training, incidents that have occurred, and “how we can improve on those incidents.” Sisson Depo., Dkt. No. 43 at 115:15–25. Sisson's description of his role lays adequate foundation to show that he has the personal knowledge to testify about what the best practices of the K–9 unit should be. He certainly has personal knowledge to testify about what he has or has not done in terms of reviewing Nicky's records. And this testimony is relevant to plaintiffs' claims against the City. Defendants' objections to these portions of Sisson's testimony are OVERRULED.

2. Deposition Testimony of Lieutenant Bryan Matthews

Defendants object to parts of Lieutenant Matthews' testimony regarding Hayward Police Department's policy for using a police dog in a residential area. Dkt. No. 52 ¶¶ 8, 11. Defendants contend that Matthews' testimony lacks foundation, personal knowledge, and is irrelevant. Id. First, Matthews' testimony is relevant to the reasonableness of Cox's deployment of Nicky and the City's liability for his actions. Second, Matthews is the unit manager of Hayward Police Department's K–9 team. Matthews Depo., Dkt. No. 40 at 5:9. He evaluates the policies and training of the Hayward Police Department's K–9 Unit, which makes him personally knowledgeable about the policies he testified about. Matthews Depo., Dkt. No. 43 at 108:1–10. Accordingly, defendants' objectionsto these portions...