Opinion
Case No. C-02-04360 RMW, [Re Docket No. 76].
September 29, 2004
Steve M. Defilippis, Counsel for Plaintiff(s).
Stephen H. Schmid, Counsel for Defendant(s).
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The motion for summary judgment brought by defendants Santa Clara County and Deputy Sheriff Dawson's was heard on April 16, 2004. For the reasons set forth below, the motion is granted.
I. BACKGROUND
This civil rights action arises out of Santa Clara County Sheriff's Deputy Seth Dawson's fatal shooting of Fernando Garcia. On September 11, 2001 at approximately 12:20 p.m., a 911 call was received from Michael Tovar reporting that there were two suspicious males on his property. (Brown Aff. ¶ 2). Santa Clara County Sherriff Deputy Robert Cisneros was dispatched to investigate at 12:25 p.m., and Deputy Dawson accompanied him. (DeFilippis Decl., Ex. M — Internal Affairs Investigation Memorandum ("Internal Affairs Memo") at 2).
Approximately ten minutes after his first call, Tovar made a second 911 call inquiring when the officers would arrive because he was scared. (Brown Aff. ¶ 5). Tovar recalls telling the 911 operator that he thought the intruders "may have a gun." (Reply Aff. Schmid, Ex. CC ("Tovar Depo.") at 132:17). During this second call, the deputies arrived and the conversation ended. (Id.).
When the deputies arrived, Tovar came out of his house to meet them in the driveway. (Tovar Depo. at 75). Moments later, Tovar's friend Monica Calderon came running from the house crying and joined the deputies and Tovar. (Tovar Depo. at 136:10-19). Tovar explained that he had seen two men watching his house and then run around to the side of the house. (DeFilippis Decl. Ex. E, Shooting Review Board Results ("Shooting Board") at 1). Deputy Cisneros testified that he recalls Tovar saying "these guys are dangerous" and that they may have "a gun." (Schmid Aff. Ex. DD ("Cisneros Depo") at 27:12-25). The deputies left Tovar and proceeded around the corner of the house, with Deputy Dawson in the lead. (Shooting Board at 2). As Dawson rounded the corner he saw the two suspects, Edmundo Solorzano and Fernando Garcia.
Dawson drew his weapon as he approached the suspects. Dawson says he drew his weapon because he recognized the men were dressed in gang type clothing, and since they had "stayed at the residence instead of just cutting through the yard." He felt they were not merely trespassers. (Shooting Board at 2). While aiming his weapon at the men, Dawson verbally commanded them to stop and put their hands up. (Dawson Aff. ¶ 4). Solorzano put his hands up. (Id.). Garcia began to ask "What did we do" as he made a hopping-sideways movement away from Dawson. (Id.; Internal Affairs Memo at 7). Dawson again yelled "stop" but Garcia "took off running into the back area of the property." (Id.). Garcia was actually intoxicated with methamphetamine. (Melnick Decl. at #8). When Garcia began to flee, Solorzano also fled, running in the opposite direction across the front of the house. (DeFilippis Decl. Ex. F ("Solorzano Depo") at 38:2-13). However, both Dawson and Cisneros ran after Garcia, with their guns pointing at him. (Solorzano Depo. at 36:14-15).
Garcia only managed to run a few feet before he stumbled. He was nearing a chain link fence at the northwest corner of the property, running with his hands in his waistband. (Dr. Cooper Decl. Ex. C ("Dawson Depo.") at 66:1-3). Cisneros also said Garcia's hands were at his mid-section. As he stumbled Garcia caught himself with his hands. At that moment, Dawson says he saw a gun fall from the waistband of Garcia's pants and land near Garcia's hand. (Dawson Depo. at 67:7-18). Cisneros was unable to keep pace with the foot pursuit and fell behind by approximately twenty feet. (Internal Affairs Memo at 12). Nevertheless, he maintained his focus on Dawson. When Cisneros saw Garcia stumble and then stop, he claims to have looked away thinking Garcia had surrendered. Instead, Garcia grabbed the gun, pushed himself up, and began running again. (Dawson Depo. at 70:2-7).
According to Dawson, as Garcia began to run he also started turning or twisting around clockwise, making a sweeping motion with his right arm. He moved the gun across his body until it was visible underneath his left bicep. (Dawson Depo. at 70:2-16). Dawson believed Garcia was attempting to position the gun under his armpit to fire back at Dawson. (Internal Affairs Memo at 5). Dawson took one side step to his right and fired one shot from his handgun striking Garcia in the back. Dawson explained that Garcia continued turning as he fell and came to rest on his back with his arms out stretched.
As the chase began, Tovar and Calderon ran into the house and did not see the shooting. While Solorzano was fleeing, he claims to have turned back just long enough to see that Dawson and Garcia both had their guns out and saw Garcia get shot. (Solorzano Depo. at 39:9-22). Cisneros does not claim to have seen a gun before the shooting, but he did see out of his peripheral vision some dark object fall from Garcia's body as Garcia fell. The gun landed near Garcia's right hand. (Id.). Dawson kicked the gun approximately ten feet away from Garcia's hand. (Dawson Depo. at 72:11-12). In doing so, the magazine separated from the gun. (Id. at 72:21-24). Cisneros searched for signs of life, but was not able to find any. (Id.).
The dispatcher states that immediately after a report of shots fired was made to dispatch a request for fire and paramedics was made. (Brown Aff. ¶ 6). Sergeant Kirts was the first sergeant to respond to the scene after the shooting. A request for paramedics had already been made by the time he arrived, but after waiting five minutes he made a second request. (DeFilippis Decl. Ex. N — Report of Kirts). California Department of Forestry Captain Curt Itson was the first medical emergency trained person to arrive on the scene. Itson received the report of a shooting at approximately 1:00 pm and arrived at the scene shortly thereafter. (DeFilippis Decl. Ex. H, Report of Itson). Initially, Sergeant Kirts would not allow paramedics, including Itson, to enter the area because he did not deem it secure. (Id.). But then Kirts asked Itson to determine if Garcia was dead. At 1:08 p.m. Itson was permitted to check Garcia for signs of life, and determined that he was dead. (Id.).
In the course of the subsequent investigation, an autopsy was performed on Garcia. The County's Coroner determined the direction of fire was from back to front, approximately 20 degrees upward and minimally from left to right. (Melinek M.D. Aff. ¶ 5). The Coroner believes her findings are consistent with Dawson's statement that Garcia was in motion, possibly twisting at the time he was shot. (Id.). She also believes that due to the severity of Garcia's internal injuries, it was unlikely that immediate medical attention would have saved his life. (Id. at ¶ 7).
Solorazno states that Garcia showed him a gun in his pants upon arrival at Tovar's residence. (Solarzano Depo. at 15:1-21). The Sheriff Department ran a check on the gun found next to Garcia's body to see if it was reported stolen. Sergeant Langley determined the weapon belonged to a reserve Gilroy police department officer and had been reported stolen from a truck the night before the incident. The Santa Clara County Crime Lab examined the gun and magazine but found the fingerprint smudges left on the gun unusable for purposes of identification. (Reneau Decl. in Support of Mot. ¶ 6).
After investigating the incident the Sheriff's Department recommended Dawson be exonerated. Plaintiffs filed one governmental tort claim on March 7, 2002. The notice failed to name the Estate of Fernando Garcia as a claimant. Subsequently, plaintiffs filed this action against defendants alleging that Dawson shot and killed Garcia while he was on his knees with his hands in the air, planted a gun on the scene, and failed to provide medical care. Plaintiffs' allegations are contained in ten separate causes of action: (1) 42 U.S.C. § 1983 for violation of civil rights against Dawson only; (2) 42 U.S.C. § 1983Monell claim against the County; (3) Assault and Battery against Dawson only; (4) False Arrest and Imprisonment against Dawson only; (5) Intentional Infliction of Emotional Distress; (6) California Civil Code 52.1 52.1 (Unruh Act); (7) Negligence; (8) Negligent Training, Selection, and Supervision against the County only; (9) Negligent Wrongful Death; and (10) Intentional Wrongful Death. The causes of action seek damages for the loss of care, comfort, and society resulting from the loss of a family member.
On August 21, 2003, this court issued an Order Granting Defendants' Motion for Judgment on the Pleadings as follows:
(1) Plaintiff Eddie Steve Garcia (Fernando's brother): all federal and state claims were dismissed, with leave to amend only for the state claims for wrongful death if plaintiff could allege in good faith that he was a minor who had lived in decedent's household for more than 180 days and was dependent on the decedent for support; and
(2) Plaintiffs Eddie and Cynthia Garcia (Fernando's father and mother): state claims for wrongful death were dismissed with leave to amend if plaintiffs could allege in good faith that they were financially dependent on the decedent; and the remaining state claims of assault and battery, false arrest and imprisonment, intentional infliction of emotional distress, and California Civil Code section 52.1 were dismissed without leave to amend.
Plaintiffs Eddie Steve Garcia, Eddie Garcia, and Cynthia Garcia were required to file an amended complaint by August 31, 2003 but did not do so. Thus, all of their claims are dismissed. Therefore, this motion addresses only: (1) the federal claims of Eddie and Cynthia Garcia under section 1983; (2) all federal and state claims of Devanna and Justin Garcia (Fernando's children); and (3) all claims of the Estate of Fernando Garcia.
II. ANALYSIS
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of establishing that there is no genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). After the moving party makes a properly supported motion, the responding party must present specific facts showing that a triable issue of fact exists. British Airways Board v. Boeing Co., 585 F.2d 946, 950-52 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). It is not enough for the responding party to point to the mere allegations or denials contained in the pleadings. Instead, it must set forth, by affidavit or other admissible evidence, specific facts demonstrating the existence of an actual issue for trial. The evidence must be more than a mere "scintilla"; the responding party must show that the trier of fact could reasonably find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In reviewing a motion for summary judgment, the court must take the responding party's evidence as true and all inferences are to be drawn in its favor.Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987).
A. Excessive Force Claim under § 1983
It is undisputed that Deputy Dawson shot and killed Garcia. Plaintiffs contend Dawson's use of deadly force against Garcia amounted to excessive force in violation of the Fourth Amendment, giving rise to liability under 42 U.S.C. § 1983 and state tort law. Defendants contend that Dawson is entitled to qualified immunity from plaintiffs' Fourth Amendment claim. Following the Supreme Court's ruling in Saucier v. Katz, 533 U.S. 194 (2001), the court must undertake a two-step analysis when a defendant asserts qualified immunity in a motion for summary judgment. Haugen v. Brosseau, 351 F.3d 372, 380 (9th Cir. 2003). First, the court must answer "this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Katz, 533 U.S. at 201. Second, if the evidence supports a finding that a constitutional right has been violated, the court then "ask[s] whether the right was clearly established" such that "it would be clear to a reasonable officer that [his] conduct was unlawful in the situation he confronted." Id. at 201-202.
Plaintiffs' claim for their individual losses from Garcia's death as opposed to claims brought on behalf of Garcia, arise under the Fourteenth Amendement (due process) and not the Fourth Amendment. See Moreland v. Las Vegas Metropolican Police Department, 159 F.3d 365, 369 (9th Cir. 1998).
Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." 42 U.S.C. § 1983.
1. Whether Shooting Violated Garcia's Constitutional Rights
Excessive force claims in the arrest context, brought under 42 U.S.C. § 1983, are analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances. Id. at 397. "The reasonableness inquiry is objective, without regard to the officer's good or bad motivations or intentions." Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir. 2002). Reasonableness must be judged "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and allow "for the fact that [peace] officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396.
In Tennessee v. Garner, 471 U.S. 1, 11 (1985) the Supreme Court explained that a law enforcement officer may reasonably use deadly force where he "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Based upon this principle, the Ninth Circuit stated, "[l]aw enforcement officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons." Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997). The application of Garner is clear in many cases. For example, if a suspect threatens an officer with a gun or a knife then the officer is justified in using deadly force. See, e.g., Billington, 292 F.3d at 1185 (holding that deadly force was justified where a suspect violently resisted arrest, physically attacked the officer, and grabbed the officer's gun). "On the other hand, the mere fact that a suspect possesses a weapon does not justify deadly force."Haugen, 351 F. 3d at 381; see, e.g., Curnow v. Ridgecrest Police, 952 F.2d 321, 324-25 (9th Cir. 1991) (holding that deadly force was unreasonable where the suspect possessed a gun but was not pointing it at the officers and was not facing the officers when they shot him).
"Even though reasonableness is traditionally a question of fact for the jury, defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1992).
The court must be careful, however, as the officer who used the force may be the only surviving witness.
Deadly force cases pose a particularly difficult problem under this regime because the officer defendant is often the only surviving eyewitness. Therefore, the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story — the person shot dead — is unable to testify. The judge must carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well as any expert testimony proffered by the plaintiff, to determine whether the officer's story is internally consistent and consistent with other known facts. Hopkins, 958 F.2d at 885-88; Ting v. United States, 927 F.2d 1504, 1510-11 (9th Cir. 1991). In other words, the court may not simply accept what may be a self-serving account by the police officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.Id. (affirmed in Billington, 292 F.3d at 1181).
The evidence here looked at in the light most favorable to plaintiffs establishes that Dawson had probable cause to believe that Garcia posed a significant threat of death or serious physical injury to Dawson. First, Dawson observed that Garcia was in possession of a firearm. Second, Dawson saw Garcia pick up the gun, and begin to twist backwards towards Dawson, and move his arm holding the gun in Dawson's direction. Third, the events occurred during a foot pursuit in which Garcia was attempting to escape.
When an armed suspect runs from a deputy after the deputy has drawn his weapon and ordered the suspect to stop, there is a reasonable threat the suspect will use the firearm against the deputy in order to escape. See Garner, 471 U.S. at 11. When, in the midst of a foot pursuit, the deputy sees the suspect, with gun in hand, turn back towards the deputy without stopping, the threat of armed retaliation becomes a significant threat. c.f Figueroa v. Gates, 207 F. Supp. 2d 1085, 1093-94 (C.D. Cal. 2002) (deadly force unreasonable when decedents had not fled and had not threatened the officers with weapons). Dawson saw Garcia stumble while fleeing, drop a gun, pick it up, and then twist backwards towards Dawson. At that point, Dawson use of deadly force was objectively reasonable.
Plaintiffs argue there is not sufficient evidence showing: (1) Garcia was in possession of a gun; and (2) that Garcia was turning or twisting back towards Dawson, when he was shot. Plaintiffs' theory is that all the deputies involved in the shooting and the subsequent investigation engaged in a cover up, planted a weapon on Garcia after the shooting and fabricated a story to justify Dawson's use of deadly force. Plaintiffs, however, provide no competent evidence supporting their theory or contradicting the material facts supported by defendants' evidence. Nevertheless, since the primary witness to Garcia's shooting was the deputy defendant, plaintiffs' arguments and evidence must be carefully examined. See Scott, 39 F.3d at 915.
a. Whether Garica was in Possession of a Gun
Plaintiffs dispute Dawson's claim that Garcia was in possession of a gun at the time of the shooting. However, defendants' evidence supporting this fact is not based solely on Dawson's testimony. Both Solorzano and Cisneros provide cooroborating testimony. Solorzano states that Garcia showed Solorzano a gun in the waistband of Garcia's pants just before getting out of their car to go onto Tovar's property. (Solorzano Depo. at 15:16-21). Plaintiffs argue that Solorzano could be lying to curry favor with the prosecutors or law enforcement because he faced criminal proceedings due to the incident. Yet, Solorzano has already received a seven year sentence for his involvement in the incident. (Id. at 105:16-25). Thus, plaintiffs have no factual basis for their speculations that Dawson is lying about Garcia's possession of a gun.
Plaintiffs also argue Cisneros cannot provide testimony that Garcia was in possession of a gun because he did not see a gun until after Garcia was shot. However, Cisneros does recall seeing something fall from Garcia's body after Garcia was shot. (Cisneros Depo. at 74:17-20). Immediately thereafter, Cisneros saw the gun laying near Garcia's body. Sergeant Kirts, the first sergeant to arrive on the scene, also observed the gun lying next to Garcia's body.
Plaintiffs attempt to raise the spectre of a cover-up by pointing to the fact that the gun found next to Garcia's body was reported stolen from a Gilroy reserve police officer. Supplemental materials, supplied at the request of the court include undisputed documentary and testimonial evidence that the gun had been reported stolen two nights before Garcia's death. The gun was issued by the Gilroy Police Department to reserve officer Jason Pacheco. On the night of September 10, 2001 Officer Pacheco had left the gun in a duffle bag stored in his brother Jacob Pacheco's ("Jacob") truck. (Jacob Pacheco Aff. in Support of Mot. ("Pacheco Aff.") ¶ 2). Jacob testifies that at approximately 4:00 a.m. on September 10, 2001 he heard his truck alarm sounding. (Id.). He went outside to find his truck had been burglarized and the duffle bag missing. (Id. at ¶ 2). Jacob promptly notified the police. (Id. at ¶ 2). Gilroy Police Officer Justin Matshura states that at approximately 4:16 a.m. that night, he responded to Jacob's residence. (Matsuhara Aff. in Support of Mot. ("Matsuhara Aff.") ¶ 4). Jacob also contacted his brother that night and learned from him that the gun was in the missing bag. Jacob, therefore, reported the gun as being stolen. (Pacheco Aff. at ¶ 4). Officer Matshura's report, prepared mid-day on September 10, 2001, lists the gun and accompanying holster as stolen from Jacob's truck. (Matsuhara Aff., Ex. A). Jacob, further, testified that he does not know Dawson, Cisneros, Solorzano, or Garcia. (Pacheco Aff. at ¶ 6). Therefore, the fact that the gun found next to Garcia's body was apparently stolen from a Gilroy reserve police officer is supported by the evidence and negates any inference that Dawson had the gun and planted it at the scene. Accordingly, plaintiffs have provided no evidence to support a claim that the gun was placed at the scene by the officer.
b. Whether Garcia was Turning Back Towards Dawson
Plaintiffs contend that Garcia was not twisting or turning back towards Dawson when he was shot. The autopsy report of Dr. Schmunk, the County's Chief Medical Examiner, states that the path of the bullet through Garcia's body was "from back to front, approximately 20 degrees upward and minimally from left to right." (Dr. Cooper Decl., Ex. D at 4). After reviewing the autopsy report, Dr. Melinek, also a county medical examiner, opines that the path of the bullet and Garcia's final resting position (on his back) are consistent with Dawson's description of the facts of the shooting. (Dr. Melinek Decl. ¶ 5).
Plaintiffs submit the expert opinion of Dr. Cooper, who performed an independent autopsy on Garcia. Dr. Cooper concludes that "Garcia could not have been turning or twisting in the manner described by Deputy Dawson at the time he was shot. More precisely, from the angle of the trajectory of the bullet through Mr. Garcia's body, it is clear that [Garcia] must have been running directly away from the Deputy when he was shot." (Dr. Cooper Decl. ¶ 4). In Dr. Cooper's opinion, if Garcia had been turning around to shoot Dawson, the path of the bullet "would have exhibited a much greater variation on the horizontal axis than the minor 10 degree movement, which [he] found." (Id. at ¶ 5).
Plaintiffs argue that Dr. Cooper's opinion creates a disputed issue of material fact because it directly contradicts the opinion of Dr. Melinek's that the path of the bullet through Garcia's body is consistent with Dawson's testimony that Garcia was twisting or turning. Dawson states that he did not touch Garcia's body after he had been shot. Thus, if he had been shot directly in the back and was not turning, Garcia presumably would have landed on his front side. In that situation, the fact that he was later found on his back, means that to be consistent with Dr. Cooper's opinion, Dawson, or one of the other deputies, had to have moved Garcia's body after the shooting.
Dr. Cooper's speculative opinion does not create a material issue of fact regarding Garcia's actions. Dr. Cooper failed to take into account all of Dawson's testimony. Dawson states that when he saw Garcia turning towards him, he, Dawson stopped running, took one step to the right, and then fired. The combination of Garcia's twisting in a counterclockwise motion (moving the gun in his right hand under his left armpit), and Dawson's taking one step to the right, could have had the effect of flattening the degree of variation the path of the bullet had along the horizontal axis through Garcia's body. Yet, Dr. Cooper fails to account for this possibility. His report makes no mention of the fact that Dawson took one step to the right. (See Dr. Cooper Decl., Ex. B). As a result, his opinion does not take into account all the facts and thus does not effectively dispute the opinion of Dr. Melnick that the physical evidence is consistent with Dawson's description of the facts of the shooting.
2. Qualified Immunity
The court has found defendants undisputed evidence shows that Dawson's use of deadly force was objectively reasonable. Therefore, plaintiffs cannot make out a claim for excessive force in violation of the Fourth Amendment. As the court has found no constitutional violation occurred, the court does not reach the second question in the qualified immunity analysis.
B. § 1983 Claim for Unreasonable Delay of Medical Treatment
Plaintiffs also allege that Dawson violated Garcia's constitutional right to be free from unnecessary delay in receiving necessary medical care. The Supreme Court has found that the deliberate indifference to serious medical needs of prisoners is proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The Court held that peace officer's intentionally denying or delaying prisoners access to medical care is an Eight Amendment violation and can be addressed under § 1983. Id. In Revere v. Massachusetts General Hosp., 463 U.S. 239 (1983) the Court held that persons "injured while being apprehended by the police" have a due process right to appropriate medical care. Id. at 244.
Plaintiffs argue that there is a question of fact regarding how long Dawson and the other deputies delayed before requesting medical assistance for Garcia. Dawson and the dispatcher both say the request for medical care was made immediately after the shooting. Plaintiffs point to the report of Itson, the first medical personnel to respond, which states that he did not receive a request until 1:00 p.m. Plaintiffs' evidence suggests a delay of approximately forty minutes before medical assistance was sought. Therefore, this evidence creates a disputed issue of fact.
In order to preclude a grant of summary judgment, the disputed issue of fact must be material. Fed.R.Civ.P. 56(a). InMartinez v. California, 444 U.S. 277, 285 (1980) the Supreme Court made clear plaintiffs cannot recover under § 1983 unless they show the alleged constitutional violation was the proximate cause of their injury. See also Brower v. County of Inyo, 489 U.S. 593, 599 (1989). This means that plaintiffs must show that a forty minute delay in requesting medical treatment for Garcia if it occurred was the proximate cause of Garcia's death. The evidence shows this was not the case.
Cisneros checked Garcia immediately after the shooting and found no signs of life. In addition, the coroner's report states that the internal injuries were so severe more immediate medical treatment most likely would not have prevented Garcia's death. In short, the evidence demonstrates that Garcia was dead almost immediately after the shooting. Plaintiffs submit no evidence which disputes this fact. Therefore, the alleged delay in requesting medical treatment was not a proximate cause of Garcia's injury, and thus cannot be the basis for § 1983 liability. Consequently, the court dismisses plaintiffs' § 1983 claims predicated on the unreasonable delay in requesting or providing medical care.
C. Monell Claim
In addition to suing Dawson, plaintiffs have sued the County under § 1983. A county may be chargeable with § 1983 liability under at least three theories. First, "[a] local government entity is liable under § 1983 when `action pursuant to official municipal policy of some nature cause[s] a constitutional tort.'"Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). Second, a county may be liable if it has a "policy of inaction and such inaction amounts to a failure to protect constitutional rights." Id. at 1474 (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also Monell, 436 U.S. at 690-91. Third, a county may be liable if after a subordinate's conduct causes a constitutional violation, a final policymaker consciously choses to ratify or approve that subordinate's conduct. Haugen, 351 F.3d at 393. The critical element required under all three theories is that plaintiffs suffered a violation of constitutional rights. See Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (to state aMonell claim "a plaintiff must show that his or her constitutional `injury would have been avoided' had the governmental entity properly trained its employees"); see also 42 U.S.C. § 1983 (predicating liability on the deprivation of constitutional rights).
Plaintiffs brings Monell claims based on all three theories. Plaintiffs argue that the County failed to adequately train its deputies leading to Dawson's allegedly improper use of deadly force against Garcia. Plaintiffs also argue that the County engaged in a custom or policy of allowing unfit, overly aggressive deputies to come in contact with citizens. Finally, plaintiffs argue that the County's final policymakers ratified Dawson's killing of Garcia by exonerating him for the shooting and accepting pretextual justifications in the investigation of the incident.
All three of plaintiffs' Monell theories fail because plaintiffs have failed to establish that Dawson violated Garcia's constitutional rights. Without an underlying violation by a County employee, plaintiffs cannot assert a § 1983 claim against the County under Monell. Therefore, plaintiffs' Monell claims must be dismissed.
D. State Claims of the Estate of Fernando Garcia
An injured party may not maintain an action for damages for death or injury to person against a public entity unless a claim has been presented to the entity within six months after the accrual of the cause of action. Cal. Gov. Code § 911.2, § 945.6. "Where two or more persons suffer separate and distinct injuries from the same act or omission, each person must submit a claim, and one cannot rely on a claim presented by another." Nelson v. County of Los Angeles, 113 Cal. App. 4th 783, 796 (2003).
Because this rule is based on the purpose of the claim statutes — which is to provide sufficient information to enable the entity to adequately investigate claims and to settlement [sic], if appropriate, without the expense of litigation — the statutory requirements have not been met by the person who has not filed a claim, and the doctrine of substantial compliance (which applies only when there is a defect in form but the statutory requirements have otherwise been met) does not apply.Id. (internal citations omitted).
Plaintiffs have filed only one governmental tort claim. On March 7, 2002 plaintiffs Eddie Garcia, Cynthia Garcia, Eddie Garcia Jr., Devana Garcia, and Justin Garcia filed a timely claim. (Knudson Aff. at ¶ 4). The claim did not include the Estate of Fernando Garcia as a claimant. (Id.). Defendants contend that the claims of the Estate must now be barred for failure to satisfy the governmental tort claims presentation requirements.
Plaintiffs rely on White v. Moreno Valley Unified School District, 181 Cal. App. 3d 1024, 1031 (1986) to argue that where a plaintiff has not actually filed a separate claim but the claim encompasses all of the events giving rise to the claim, the courts may allow it under the doctrine of substantial compliance. This argument was rejected in Nelson, a case with a similar factual context. 113 Cal. App. 4th at 797 n. 10.
In Nelson, Dwayne Nelson was killed by being restrained in a hog-tie fashion by the police causing him to suffocate. Id. His mother, Mrs. Nelson, filed a governmental tort claim, listing herself as the only claimant. Id. However, she filed a complaint asserting claims individually and on behalf of Dwayne's estate as his personal representative. Id. at 796. She argued that her claim substantially complied with the claim filing requirements for purposes of allowing Dwayne's estate to bring a claim. Id. In rejecting Mrs. Nelson's argument, the court explicitly distinguished her situation from that in White. Id. at 797 n. 10. The court explained that unlike White, "Mrs. Nelson's claim form did not identify the estate and did not identify Mrs. Nelson as Dwayne's personal representative. It did not identify any damages recoverable by the estate (e.g. pre-death medical expenses or other expenses suffered by Dwayne before his death)." Id. In highlighting the distinction between form versus substance, when applying the doctrine of substantial compliance, the court explained, "[t]he problem here is not that Mrs. Nelson's claim was defective, but that no claim at all was filed by or on behalf of Dwayne's estate." Id. at 798.
The court finds Nelson to be controlling here. The Estate of Fernando Garcia did not file a claim. (See Knudson Aff., Ex. A). Nothing in the claim form plaintiffs filed suggests the claim was filed by other than the named claimants' in their individual capacities. Finally, damages described in the claim were for "the wrongful death of the decedent, Fernando Garcia," with no mention of any damages incurred by Fernando before his death. (Id.). Therefore, the state claims of the Estate of Fernando Garcia are barred.
E. Immunity against State Torts Based on Justifiable Homicide
Defendants argue that plaintiffs' state claims for (1) intentional infliction of emotional distress; (2) negligence; (3) negligent selection, training, retention, supervision, investigation, and discipline; (4) negligent wrongful death; and (5) intentional wrongful death, must be dismissed because Dawson's use of deadly force was justified. In California, there is no civil liability when a homicide is justified. Cal. Pen. Code § 196; see Martinez v. County of Los Angeles, 47 Cal. App. 4th 334, 349 (1996) (granted summary judgment in favor of defendants because decedent's death resulted from a justifiable homicide under Cal. Pen. Code § 196).
"The test for determining whether a homicide was justifiable under Penal Code § 196 is whether the circumstances `reasonably create[d] a fear of death or serious bodily harm to the officer or to another.'"Martinez, 47 Cal. App. 4th at 349 (quoting Kortum v. Alkire, 69 Cal. App. 3d 325, 333 (1977)). For the reasons discussed in connection with the section 1983 claim, Dawson's use of deadly force was objectively reasonable and constitutes justifiable homicide under Penal Code § 196. As a result, Dawson is not liable under state law for the shooting. In addition, a public entity is not liable for an injury resulting from the conduct of an employee of the public entity where the public employee is immune from liability. Therefore, the County is not responsible for Garcia's death.
III. ORDER
For the foregoing reasons, the court grants defendants' motion for summary judgment.