Pottorff v. City of Fresno
| Decision Date | 02 August 2020 |
| Docket Number | No. 1:16-cv-01593-DAD-SKO,1:16-cv-01593-DAD-SKO |
| Parties | SEAN POTTORFF, Plaintiff, v. CITY OF FRESNO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS
This matter is before the court on a motion for summary judgment filed by defendants, which are the City of Fresno; Jerry Dyer, individually and in his official capacity as Chief of Police for the City of Fresno; and Daniel Gonzalez, individually and in his official capacity as a police officer for the City of Fresno (collectively, "defendants"). On November 19, 2019, the motion came before the court for hearing. Attorney Justin Dennis Harris appeared telephonically on behalf of plaintiff, and attorney Bruce Daniel Praet appeared telephonically on behalf of defendants. For the reasons discussed below, the court will deny defendants' motion for summary judgment and dismiss certain claims and defendants.
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The following facts are undisputed unless otherwise noted. In September 2015, plaintiff Sean Pottorff decided that he would commit suicide because of a series of personal setbacks. (Doc. No. 34-2, Joint Statement of Undisputed Facts ("JUF") at 2.) To prepare for his suicide attempt, he obtained a .45 caliber handgun from a relative's home. (Id.)
Before plaintiff could carry out his plan, a female acquaintance named Naomi called the Fresno Police Department ("FPD") on September 18, 2015 and reported that plaintiff was suicidal and holding her at gunpoint in his apartment. (JUF at 2-3.) When FPD officers arrived at the scene, Naomi met them outside of plaintiff's apartment and informed them that she was not being held against her will but confirmed that plaintiff was suicidal and in possession of a gun. (Doc. No. 28 at 8; JUF at 3.) When the officers spoke with plaintiff, he denied that he was planning to commit suicide and declined to exit his apartment. (JUF at 4.) A Fresno County mental health worker was then called to the scene; after speaking with plaintiff—who again denied that he was suicidal—the mental health worker determined that there was no basis to have plaintiff involuntarily committed for psychiatric evaluation. (Doc. No. 28 at 8; JUF at 4.) Concluding that there was insufficient evidence of a crime upon which to detain plaintiff, the officers departed. (Doc. No. 28 at 8.)
The next day, on September 19, 2015, FPD learned that plaintiff was on active probation for a domestic violence incident and was therefore barred from possessing a firearm. (Doc. No. 28 at 8; JUF at 4.) When FPD officers returned to plaintiff's apartment later that day to verify that he was in compliance with the terms of his probation, they encountered his unidentified female friend, who asked plaintiff to leave his apartment and help her with her vehicle. (Doc. No. 28 at 8-9; JUF at 4-5.) Plaintiff then left his apartment, taking his gun with him because he suspected FPD might enter his apartment to seize it. (Doc. Nos. 28 at 9; 28-3 at 12:14-24.)
FPD officers then approached plaintiff, who responded by pointing his gun at his own head and retreating to the front of his apartment. (Doc. Nos. 32 at ¶¶ 7-8; JUF at 5.) For at least 3 minutes and 40 seconds, FPD officers attempted to persuade plaintiff to put down the gun. (SeeDoc. No. 28-7, Body Camera Footage ("BCF") at 0:00-3:40; JUF at 5-6.)1 As evidenced by the body camera footage, the officers alternated between ordering plaintiff to put his gun down or pleading with him to do so, warning him that failure to do so could result in him being shot, and assuring him that they wanted only to help him and did not wish to harm him. (Id.) Nonetheless, plaintiff refused to comply and kept the gun pointed at his head. (JUF at 6.) The officers then deployed their tasers. (JUF at 6-7.) Officer Vilai Douangmala discharged his taser first. (BCF at 3:40.) Approximately five to six seconds later, Officer Brent Garcia discharged his taser. (JUF at 7; BCF at 3:46.)
Whether the tasers had any effect upon plaintiff is disputed, and while the body camera footage contains a partial video recording of the encounter between plaintiff and the police, it provides only audio confirmation of the taser and firearm discharges. (See BCF at 3:40-3:46.) According to defendants, the first taser had "no immediate effect on [plaintiff,] who continued to hold the gun to his head," though defendants are unsure whether it was because the taser "missed or was simply ineffective." (Doc. No. 28 at 10; JUF at 7.) Defendants contend that the second taser also had "little to no disabling effect" on plaintiff, and that he subsequently lowered the gun in his right hand in the direction of the officers. (Doc. No. 28 at 10; JUF at 7-9.)
Plaintiff's version of the events is murkier. He contends that the tasers were fired "near simultaneously," just a "split second" apart, so "it is unclear if the first Taser had any effect," even though audio from the body camera indicates that the second taser was fired five to six seconds after the first. (Doc. Nos. 28-3 at 17:21-25; 34-1 at 5:11-17; JUF at 7; BCF at 3:40-3:46.) Plaintiff is nevertheless sure that the "second taser is what did the damage," causing a "harmful disabling effect." (Doc. Nos. 28-3 at 17:8-9, 19-20; 34-1 at 5:11-17; JUF at 7.) He is also certain that the second taser was what caused him to drop his gun and fall to the ground. (Doc. Nos. 28-3 at 18:10-13; 32 at ¶ 8.) However, plaintiff concedes that he does not know if hisright arm—the one that had been holding the gun—had moved in a downward motion towards the police because he cannot "recall anything other than [the] pain" of being tasered. (Doc. No. 28-3 at 18:14-19:6.)
Either way, the incident escalated from there. According to Officer Gonzalez:
Upon being struck with the second Taser application, Mr. Pottorff appeared to try to fight the effects. In doing so, he very clearly and deliberately began to lower the handgun from his own head and point it directly toward myself and other officers. Fearing that Mr. Pottorff was going to shoot myself and other officers, I immediately fired 2-3 rounds from my handgun.
(Doc. No. 28-5 at ¶ 6.) Body camera audio indicates that the shots were fired at plaintiff in quick succession and approximately only one second after the second taser discharge. (BCF at 3:47.)
Plaintiff nonetheless contends he was shot only after he had started to fall or was already on the ground. (Doc. No. 32 at ¶ 9.) The shots fired by defendant Gonzalez struck plaintiff twice, and plaintiff argues that "basic geometry" supports his assertion that Gonzalez shot him as he was falling or already on the ground because one of the bullets allegedly struck him in the face, exited his left cheek, and lodged in his left shoulder. (Id.) Plaintiff reasons that because his face is higher than his left shoulder, "Officer Gonzalez had to be shooting in a downward direction in order to have the bullet travel from my left cheek to my left shoulder." (Id.)
Whether he collapsed before or after being shot by defendant Gonzalez, plaintiff eventually ended up on the ground, at which point the officers secured plaintiff's gun, handcuffed him, and began administering first aid. (JUF at 9.) Paramedics later arrived and took him away. (See BWC at 10:18.) As a result of the above incident, plaintiff was later convicted in Fresno County Superior Court of violating California Penal Code §§ 417.8 and 29815(a) for exhibiting a deadly weapon to the police in order to resist arrest or detention and for possessing a firearm while subject to a probation restriction. (Doc. No. 28-9 at 2-4.)
On October 21, 2016, plaintiff filed this civil rights action, alleging: (1) use of excessive force in violation of the Fourth Amendment, brought pursuant to 42 U.S.C. § 1983; (2) denial of the right to counsel in violation of the Fifth Amendment, brought pursuant to 42 U.S.C. § 1983;(3) a violation of the Bane Act, California Civil Code § 52.1; (4) battery; and (5) negligence. (Doc. No. 1.) Plaintiff also alleges a Monell claim against the City of Fresno. (Id.)
Defendants moved for summary judgment on October 8, 2019, plaintiff filed his opposition on November 5, 2019, and defendants filed their reply on November 7, 2019. (Doc. Nos. 28, 29, 34.)
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where, as here, the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325). If the moving party meets its initial burden, it shifts to the opposing party to establish that a genuine dispute over a material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
To meet their burden, the parties may not simply rest on their pleadings. Rather, parties must cite to specific parts of the record to show whether there is a genuine dispute over a material fact. See Fed. R. Civ. P. 56(c); see also Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (). A fact is material if it might affect the outcome of the suit under governing law, and the dispute, genuine if a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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