Rodriguez v. City of Modesto, CASE NO. CV F 10-1370 LJO MJS

• Decision Date: 06 June 2011
• Docket Number: CASE NO. CV F 10-1370 LJO MJS
• Court: U.S. District Court — Eastern District of California
• Parties: MIGUEL RODRIGUEZ, et al., Plaintiffs, v. CITY OF MODESTO, et al., Defendants.

MIGUEL RODRIGUEZ, et al., Plaintiffs, v. CITY OF MODESTO, et al., Defendants.

CASE NO. CV F 10-1370 LJO MJS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: June 6, 2011

ORDER ON PLAINTIFFS' F.R.Civ.P. 60(b)

MOTION FOR RELIEF FROM JUDGMENT

(Doc. 27.)

INTRODUCTION

After limited remand from the Ninth Circuit Court of Appeals, this Court considers plaintiffs'¹F.R.Civ.P. 60(b)(1) motion for relief from dismissal of their 42 U.S.C. § 1983 ("section 1983") excessive force and common law battery and false arrest claims against defendant City of Modesto ("City") and several of its peace officers. This Court considered plaintiffs' F.R.Civ.P. 60(b)(1) motion on the record and without a hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DENIES plaintiffs relief from dismissal of their claims.

DISCUSSION

Summary

Plaintiffs failed to respond to defendants' F.R.Civ.P. 12(b)(6) motion to dismiss plaintiffs' claimsraised in their First Amended Complaint for Damages for Violation of Civil Rights (42 U.S.C. Section 1983) and Related State Law Claims ("FAC").² This Court's January 6, 2011 order ("January 6 order") dismissed plaintiff's FAC claims, and judgment was entered for defendants against plaintiffs. Plaintiffs appealed the judgment and sought this Court's F.R.Civ.P. 60(b)(1) relief. With limited remand from the Ninth Circuit, this Court entertains plaintiffs' F.R.Civ.P. 60(b)(1) motion.

Summary Of FAC Allegations

Mr. Alizaga's Arrest

The FAC alleges that on February 8, 2009 at around 1 a.m., plaintiffs gathered at Mr. Alizaga's Modesto home to celebrate his birthday. A police officer knocked at the door, and Mr. Alizaga's dog ran out when he opened the door. As Mr. Alizaga tried to retrieve the dog, Officers Spruiell and Ziya grabbed Mr. Alizaga, threw him to the ground and handcuffed him "for no apparent reason." Officers Spruiell and Ziya struck Mr. Alizaga with their batons when Mr. Alizaga was on the ground. Mr. Alizaga was booked on charges of resisting arrest, a misdemeanor.

Mr. Rodriguez' Arrest

Mr. Rodriguez came out of the house, observed Mr. Alizaga's arrest, and wanted to find out the reason. Mr. Rodriguez stood peaceably on the home's front lawn and attempted to learn from police why Mr. Alizaga had been arrested. Officers Ziya, Fontes and Murphy arrested Mr. Rodriguez without having observed him commit a criminal offense. During the arrest, Officer Fontes shot Mr. Rodriguez with his Taser several times, and Officer Ziya struck Mr. Rodriguez' arm with his baton. Officer Murphy gave the "bite command" to his K-9 which bit Mr. Rodriguez, who never struck or attempted to strike the officers.

When Mr. Rodriguez was handcuffed and walked to a patrol car, unidentified officer Doe Defendant No. 1 put a shotgun to Mr. Rodriguez' back and banged his head against the roof of the patrol car. Doe Defendant No. 1 attempted to break Mr. Rodriguez' bad leg after Mr. Rodriguez had alertedthe officer of a prior injury to the leg. Mr. Rodriguez screamed: "What are you doing to me? I have a daughter!" Doe Defendant No. 1 responded: "Fuck your daughter, you piece of shit!"

The police threw Mr. Rodriguez in the back of a patrol car to injure his bad leg. The police took Mr. Rodriguez to a hospital for medical clearance and then to jail. Mr. Rodriguez was released the following morning at about 1 a.m. with a citation for resisting arrest, a misdemeanor.

Ms. Fernandez' Arrest

When the police arrested Mr. Alizaga and Mr. Rodriguez, Ms. Fernandez came outside and observed Mr. Alizaga and Mr. Rodriguez being beaten. As Ms. Fernandez stood on the home's porch and watched, Sgt. Buehler grabbed Ms. Fernandez, threw her to the ground, and handcuffed her for "no apparent reason." Unidentified officer Doe Defendant No. 2 struck Ms. Fernandez several times with his club when Ms. Fernandez lay face-down on the front lawn, handcuffed and screaming for help. Officer Souza held a police dog next to Ms. Fernandez' head for no reason. Police placed Ms. Fernandez in a patrol car's back seat and ignored her repeated requests for an explanation. The police transported Ms. Fernandez to an airport parking lot where no female officer was present. Ms. Fernandez feared "the police would sexually assault her." Ms. Fernandez was transported to a hospital for medical clearance, was taken to jail, was charged with resisting arrest, and released with a citation for resisting arrest, a misdemeanor.

Lt. Cloward was the "ranking officer" on the scene and did nothing to restrain the unlawful behavior of officers under his command.

Plaintiffs' Nolo Contendere Pleas

On February 10, 2009, a misdemeanor criminal complaint was filed in Stanislaus County Superior Court to charge each plaintiff with a count of violation of California Penal Code section 148(a) (restricting, delaying or obstructing peace officer) ("section 148(a)"). The criminal complaint accused:

1. Mr. Alizaga of wilfully and unlawfully resisting, obstructing and delaying Officer Spruiell;

2. Ms. Fernandez of wilfully and unlawfully resisting, obstructing and delaying Sgt. Buehler and Officer Fontes; and

3. Mr. Rodriguez of wilfully and unlawfully resisting, obstructing and delaying OfficerMurphy.

Plaintiffs entered nolo contendere pleas to charges against them and were convicted subject to their pleas.

The FAC's Claims

The FAC alleges:

1. A (first) section 1983 claim that Sgt. Buehler, Officer Souza and Doe Defendant No. 1 "used unreasonable force when arresting" Ms. Fernandez to violate the Fourth Amendment;

2. A (second) section 1983 claim that Officers Murphy, Fontes and Ziya "used unreasonable force when arresting" Mr. Rodriguez to violate the Fourth Amendment;

3. A (third) Monell claim that:

a. The City "has a custom and common practice of failing to appropriately discipline its police officers for acts of misconduct, especially the use of excessive force against persons being arrested"; and

b. The City and Chief Wasden "had a legal duty to adequately discipline their officers in order to safeguard the public from police abuse" and "were deliberately indifferent to their duty to adequately and [sic] discipline their officers";

4. A (fourth) failure to supervise claim that Lt. Cloward "was the highest ranking officer on the scene," "personally directed and encouraged his subordinates in violating Plaintiff's Fourth Amendment rights," "was aware of the abusive behavior of the other defendant officers," and "had a legal duty to intervene and to exercise appropriate command functions to protect Plaintiffs";

5. A (fifth) battery and sixth (false arrest) claims that:

a. Sgt. Buehler, Officer Souza and Doe Defendant No. 1 committed battery against and falsely arrested Ms. Fernandez;

b. Officers Spruiell and Ziya committed battery against and falsely arrested Mr. Alizaga; andc. Officers Murphy, Fontes, Ziya and Doe Defendant No. 2 committed battery against and falsely arrested Mr. Rodriguez; and

6. A (seventh) California Civil Code sections 51.7 and 52.1 claim that:

a. Sgt. Buehler, Officer Souza and Doe Defendant No. 1 violated Ms. Fernandez' civil rights by threats, force and intimidation;

b. Officers Spruiell and Ziya violated Mr. Alizaga's civil rights by threats, force and intimidation; and

c. Officers Murphy, Fontes, Ziya and Doe Defendant No. 2 violated Mr. Rodriguez' civil rights by threats, force and intimidation.

The FAC seeks recovery for plaintiffs' multiple contusions and abrasions and emotional distress and for Ms. Fernandez' cervical strain.

Dismissal Of Plaintiffs' Claims

After plaintiffs failed to oppose defendants' F.R.Civ.P. 12(b)(6) motion, this Court's January 6 order dismissed with prejudice all FAC claims, and judgment effective January 6, 2011 was entered for defendants against plaintiffs. Plaintiffs filed a February 4, 2011 notice of appeal of dismissal of their claims.

On April 8, 2011, plaintiffs filed in this Court their F.R.Civ.P. 60(b)(1) motion for relief from the judgment to claim that the January 6 order erroneously dismissed their claims for Fourth Amendment violations, battery and false arrest. This Court's April 11, 2011 order denied without prejudice plaintiffs' F.R.Civ.P. 60(b)(1) motion in that their appeal divested this Court's jurisdiction to prevent it to address the motion. The Ninth Circuit's May 16, 2011 order remanded the matter to this Court for the limited purpose to consider plaintiffs' F.R.Civ.P. 60(b)(1) motion. As such, this Court considers plaintiffs' F.R.Civ.P. 60(b)(1) motion.

DISCUSSION

F.R.Civ.P. 60(b) Motion For Relief Of Judgment Standards

F.R.Civ.P. 60(b)(1) permits relief from final judgment on grounds of "mistake, inadvertence, surprise, or excusable neglect." F.R.Civ.P. 60(b) relief is not a matter of right and rests in the trial court's sound discretion. Robb v. Norfolk & Western Ry. Co., 122 F.3d 354, 359 (7th Cir. 1997); de laTorre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir. 1994); see Carter v. United States, 973 F.2d 1479, 1489 (9th Cir. 1992). F.R.Civ.P. 60(b) relief may be granted "only upon an adequate showing of exceptional circumstances." Richards v. Aramark Services, Inc., 108 F.3d 925, 927 (8th Cir. 1997); Massengall v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir. 1994); United States v. Bank of New York, 14 F.3d 756, 757 (2nd Cir. 1994).

A motion for F.R.Civ.P. 60(b)(1) relief"must be made within a reasonable time . . . no more than a year after entry of the judgment or order." F.R.Civ.P. 60(c)(1).

Plaintiffs appear to pursue the "excusable neglect" avenue for their requested relief. Excusable neglect "covers negligence on the part of counsel." Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223 (9th Cir. 2000). "[D]termination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay;...