Rodriguez v. City of Fresno

• Decision Date: 16 May 2011
• Docket Number: No. CV F 09–CV–1176 AWI MJS.,CV F 09–CV–1176 AWI MJS.
• Citation: 819 F.Supp.2d 937
• Court: U.S. District Court — Eastern District of California
• Parties: Gabrielle RODRIGUEZ, Plaintiff, v. CITY OF FRESNO, Jerry Dyer Robert Chavez, and Does 1 to 20, inclusive, Defendants.

819 F.Supp.2d 937

Gabrielle RODRIGUEZ, Plaintiff,

v.CITY OF FRESNO, Jerry Dyer Robert Chavez, and Does 1 to 20, inclusive, Defendants.

No. CV F 09–CV–1176 AWI MJS.

United States District Court, E.D. California.

May 16, 2011.

Michael Robert Bracamontes, Bracamontes & Vlasak, P.C., San Francisco, CA, for Plaintiff.

James Darvin Weakley, Brande Lynn Gustafson, James J. Arendt, Weakley & Arendt, LLP, Fresno, CA, for Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

ANTHONY W. ISHII, Chief Judge.

In this action, plaintiff Gabrielle Rodriguez (“Plaintiff”) alleges civil rights violations under federal and state law against defendants City of Fresno, Jerry Dyer and Robert Chavez (“Chavez”) (collectively, “Defendants”) based on injuries she sustained as a bystander during a police response to an incident at her home in the City of Fresno. Plaintiff's complaint alleges federal and state civil rights claims against both the individual and municipal Defendants and alleges a variety of state common law claims against both as well. In the instant motion, Defendants move for summary judgment on all claims against them. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.

FACTUAL OVERVIEW AND PROCEDURAL HISTORY

Plaintiff's complaint was filed on July 2, 2009. The complaint alleges eight claims for relief. The first alleges violation of Plaintiff rights under the Fourth and Fourteenth Amendments in violation of 42 U.S.C. § 1983 against Defendant Chavez. Plaintiff's second claim for relief alleges Monell claims against Defendants Dyer and City of Fresno. Plaintiff's third and fourth claims for relief allege negligence and battery claims respectively against Defendants Chavez and City of Fresno. Plaintiff's fifth claim for relief alleges unlawful use of violence based on race or gender in violation of California Civil Code section 51.7 against Defendants Chavez and City of Fresno. Plaintiff's sixth claim for relief alleges violation of California Civil Code, section 52.1 against all Defendants. Plaintiff's seventh claim for relief alleges negligent hiring, training and supervision against Defendants Dyer and City of Fresno and Plaintiff's eighth claim alleges vicarious liability under state law against City of Fresno.

The only motions to come before the court from the time the complaint was filed to the time the instant motion for summary judgment was filed involved Plaintiff's motion to compel disclosure of certain information pertaining to internal affairs proceedings involving instances of police use of lethal force. The Magistrate Judge granted Plaintiff's motion to compel on September 1, 2010, 2010 WL 3448324. Defendants moved for reconsideration of the Magistrate Judge's order on September 15, 2010, and this court filed an order on December 6, 2010, 2010 WL 5059644, denying reconsideration of the order to compel.

As the court noted in its order denying reconsideration, the two sides in this case allege very sharply divergent factual backgrounds. Defendants allege the police dispatched Officers Chavez and Derek Avila (“Avila”) to an apartment in Fresno where Plaintiff resided with her boyfriend, Danny Hernandez (“Hernandez”). The parties agree that a domestic disturbance was reported at a New Year's Eve party and that there was loud shouting and arguing. The parties agree that Marcelino Rodriguez (“Marcelino”), (who is not related to Plaintiff) gave a description of Hernandez to police. Defendants allege Hernandez was described by Marcelino as a Bulldog gang member who was armed with a handgun. Defendants allege Marcelino indicated that Hernandez had threatened to kill Marcelino's brother, Michael Rodriguez, and had brandished a handgun in Marcelino's presence and that Hernandez kept the handgun tucked into his front waistband. Defendants allege the police Officers approached the apartment, observed Hernandez walking away from the apartment and identified themselves to him as police officers. Defendants allege Hernandez turned and ran into the apartment, but that as he was running, his hands shifted to the area around his front waistband where the handgun was reportedly located. Hernandez fled into the apartment and was pursued by the police officers. When Chavez reached the inside of the apartment he saw Hernandez moving toward an open doorway in the kitchen/living room area of the apartment. Defendants allege Plaintiff was standing to the side of where Hernandez was and was not in Officer Chavez's “sight picture.” Chavez, fearing that Hernandez posed a deadly threat, fired two shots in rapid succession. At about the same time he fired Plaintiff reached out and grabbed Hernandez's shoulder. Danny Hernandez was struck by one shot in the back and Plaintiff was struck by one shot in the vaginal area. Defendants contend the shooting of Plaintiff was accidental.

Plaintiff, on the other hand, alleges Hernandez was not a gang member, did not threaten anyone, did not own a gun, and was unarmed at the time Chavez fired the shots that wounded Hernandez and Plaintiff. Plaintiff alleges the officers did not identify themselves as being police officers and that Hernandez fled from what he believed were gang members. Plaintiff alleges that Hernandez never looked at the officers and never moved as though he was reaching for a gun at his waist before he was shot. Plaintiff alleges that she was in Chavez's “sight picture” when Chavez fired and that Chavez intentionally shot her out of an unreasonable fear that Hernandez posed a lethal threat.

The instant motion for summary judgment was filed on January 14, 2011. Plaintiff's opposition was filed on February 14, 2011, and Defendants' reply was filed on February 18, 2011. The hearing on motion, which was scheduled for February 28, 2011, was vacated and the matter was taken under submission as of that date.

LEGAL STANDARD

Summary judgment is appropriate 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(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the 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). Although the party moving for summary judgment always has the initial responsibility of informing the court, the nature of the responsibility varies “depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial.” Cecala v. Newman, 532 F.Supp.2d 1118, 1132–1133 (D.Ariz.2007). When the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting evidence affirmatively showing, for all essential elements of its case, that no reasonable jury could find for the non-moving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc); Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986); see also E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir.2002) (stating that if “party moving for summary judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive.”)

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288–89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348; First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. 1575; Strong v. France, 474 F.2d 747, 749 (9th Cir.1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248–49, 106 S.Ct. 2505; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” First Nat'l Bank, 391 U.S. at 290, 88 S.Ct. 1575; T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of...