Trisha Newman v. Cnty. of Fresno
| Decision Date | 20 July 2018 |
| Docket Number | No. 1:16-cv-01099-DAD-BAM,1:16-cv-01099-DAD-BAM |
| Parties | TRISHA NEWMAN, Plaintiff, v. COUNTY OF FRESNO, FRESNO COUNTY SHERIFF'S DEPARTMENT, and HERNANDEZ, Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Plaintiff, the owner of a dog named Face, initiated this action by filing her complaint in this court on July 29, 2016. (Doc. No. 1.) In that complaint, plaintiff asserted causes of action under 42 U.S.C. § 1983 for violation of her Fourth Amendment rights against both Deputy Hernandez and the County of Fresno, as well as state law claims for trespass to chattel, conversion, negligence, and intentional infliction of emotional distress. (Id.) Defendants filed their answer on August 30, 2016. (Doc. No. 5.)
On June 14, 2017, defendants moved for summary judgment in their favor as to all of plaintiffs' causes of action. (Doc. No. 19.) Plaintiff filed an opposition to that motion on July 19, 2017, to which defendants replied on July 24, 2017. (Doc. Nos. 20, 21.) A hearing was held on the motion on August 1, 2017, at which attorney Jill Ryther appeared on behalf of plaintiff and
///// attorney Leslie Dillahunty appeared on behalf of defendants.1 For the reasons discussed below, the court will grant defendants' motion for summary judgment in its entirety.
The factual background of this case is largely undisputed.2 On the morning of August 6, 2015, Fresno County Sheriff's Department deputies responded to a welfare call reporting that a small child around the age of two years old had been crying alone in the backyard of a house for about thirty minutes. (Doc. No. 19-3 at ¶ 1; Doc. No. 20-2 at ¶ 1.) A welfare call or welfare check is a Priority One call. (Doc. No. 19-3 at ¶ 3.) Deputies Michael Hernandez and Javier Puente were dispatched to conduct the welfare check. (Id. at ¶ 4.) The deputies first priority was to "find and assure the safety of the child." (Doc. No. 20-2 at ¶ 3.)
///// When the deputies arrived in the neighborhood, they saw an adult standing behind the chain link fence of a neighboring house, who advised them that the child was still by herself in the back yard. (Doc. No. 19-4 at 11-12; Doc. No. 19-5 at ¶ 5.) The deputies recognized the house in question, because they had responded to two complaints of criminal activity—specifically, pursuit of a suspect after a purported automobile theft and a separate purported narcotics incident—at the house previously. (Doc. No. 19-4 at 5-9.) Because the call was a Priority One welfare check and he was concerned about the safety and well-being of the child, Deputy Hernandez elected to make sure the child was safe prior to contacting anyone in the house. (Doc. No. 19-5 at ¶ 7.) Deputy Hernandez did not recall having seen dogs at the house during any of his prior visits, but upon approaching the house saw a medium sized dog pulling against its leash in the back yard. (Doc. No. 20-2 at ¶¶ 6-7.) Unknown to the deputies, however, there was another dog roaming freely in the back yard. (Id. at ¶ 11.) Prior to entering the back yard, Deputy Hernandez kicked the gate to attempt to determine if there were any additional dogs in the back yard. (Id. at ¶ 15.) Kicking the gate elicited no response prior to Hernandez entering the back yard.
Deputy Hernandez then entered the back yard and called softly to the child, who remained alone but had ceased crying, motioning for her to come to him. (Id. at ¶ 18.) At approximately the same time, a second, unrestrained dog—a medium sized pit bull mix—emerged. (Id. at ¶ 19; Doc. No. 19-4 at 24.) This dog, named Face, barked, growled, and advanced toward Deputy Hernandez while baring its teeth and tensing its muscles, which caused the deputy to kick at it and yell. (Doc. No. 19-4 at 20, 22, 30-31.) The kicking and yelling did not deter the dog, who continued advancing toward Deputy Hernandez in the same manner. (Id. at 21-23; 30-31.) Deputy Hernandez shot the dog twice, mortally wounding it. (Doc. No. 20-2 at ¶ 26.) The dog then ran toward the gate leading out onto the street, and Hernandez shot the dog a third time, concerned it would exit the yard. (Doc. No. 19-4 at 13-15.)
After the shots were fired, plaintiff's boyfriend, Ryan Covey, emerged from the house and yelled at Deputy Hernandez for shooting his dog. (Doc. No. 19-3 at ¶ 8.) Mr. Covey then directed Deputy Hernandez to shoot the dog again to euthanize it, a request with which DeputyHernandez complied. (Doc. No. 20-2 at ¶ 29.) At the time of the incident the child's mother, Jackie, was sleeping in a travel trailer south of the main residence and did not hear either the gunshots or her daughter crying in the yard. (Doc. No. 20-2 at ¶ 30; Doc. No. 19-3 at ¶¶ 9-10.)
The Fresno County Sheriff's Office maintains written shooting policies, which state in part:
(Doc. No. 20-2 at ¶¶ 35-37.)
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
In summary judgment practice, 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)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of agenuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). 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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (). 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, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. 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. See Wool v. Tandem Computs., 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." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Undisputed facts are taken as true for purposes of a motion for summary judgment. Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 745(9th Cir. 2010). Finally, to demonstrate a genuine issue, the opposing party Matsushita, 475 U.S. at 587 (citation omitted).
Defendants assert that there is no genuine dispute of material fact concerning any of the claims raised by plaintiff here, and that judgment should be awarded in their favor. The court will consider each of the causes of action in turn below.
Plaintiff's sole Fourth Amendment claim against defendan...
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