Opinion
No. CV 97-1286 CBM (RJGx)
February 4, 2002
ORDER
The matter before the Court is Defendants Fisher and Mattox's Motion for Summary Judgment and Request for Judicial Notice; and Plaintiff's Submission Pursuant to Federal Rule of Civil Procedure 56(f). Upon consideration of the papers submitted, the Court hereby DENIES Defendants' Motion for Summary Judgment; GRANTS, in part, and DENIES, in part, Defendants' Request for Judicial Notice. The Court DENIES as moot Plaintiff's submission pursuant to Rule 56(f) of the Federal Rules of Civil Procedure.
JURISDICTION
This action is before the Court pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331, 1343.
BACKGROUND PROCEDURAL HISTORY
This case is among several cases filed against several members of the Los Angeles Police Department ("LAPD") and other defendants for alleged violations of 42 U.S.C. § 1983. The relevant facts are as follows. On February 25, 1997, members of LAPD's Special Investigative Service ("SIS") were pursuing several robbery suspects. Two police officers spotted a man they apparently believed to be one of the escaped robbers, Michael Smith. In fact, the man was not the escaped robber, but rather Grover Smith. The parties present different versions of Mr. Smith's and the police officers' actions leading up to the time they shot him. The officers, for example, claim that the officers shot Mr. Smith only after he moved his hand toward his waistband as if reaching for a gun. Smith claims that be made no such movement. However, it is undisputed that the police officers shot Mr. Smith in the leg from behind. It is also undisputed that he was not the suspect they were seeking.
Although Grover Smith shares the same last name with the robbery suspect the police intended to pursue, the two men are not related.
Defendants Raymond Fisher and Art Mattox served on the Los Angeles Police Commission at the time of the incident. They no longer serve on the Commission. Plaintiff sued the commissioners in both their individual and official capacities. Third Amended Complaint ¶ 9. Plaintiff makes several allegations against the Commissioners, including charges that they failed to adequately investigate police misconduct and ratified the police officers' policies and behavior that led to violations of Mr. Smith's constitutional fights.
On March 26, 1998, Judge Letts denied Defendants Fisher and Mattox's notion for summary judgment based on qualified immunity. In conjunction with other appeals, the Defendants appealed the denial of summary judgment on qualified immunity grounds to the Ninth Circuit. The Ninth Circuit found that it did not have jurisdiction to review the Police Commissioners' qualified immunity claim because the district court found material factual disputes. Cunningham v. Gates 229 F.3d 1271, 1292 (9th Cir. 2000).
Defendants Fisher and Mattox filed the current Motion for Summary Judgment on September 24, 2001. Plaintiff Grover Smith timely filed an Opposition on October 1, 2001. Defendants filed their Reply on October 9, 2001.
DISCUSSION
I. Defendants' Request for Judicial Notice
Defendants request that the Court judicially notice the following facts: (1) Under the City of Los Angeles Charter, individual members of the Los Angeles Board of Police Commissioners (the "Board") have no legal authority to unilaterally exercise supervisory control over the LAPD or any of its officers. Fisher and Mattox's supervisory authority over the LAPD was limited solely to their power to act as constituent members of a board majority. Defendants refer to excerpts of the Los Angeles City Charter, attached to their summary judgment notion as Exhibit 1, to support this assertion; (2) Raymond Fisher was appointed to serve on the Board from August 22, 1995 to June 30, 1998, and Art Mattox was appointed to serve from July 30, 1993 to June 30, 1997. Defendants refer to the City Council's Record of Appointments, attached to their summary judgment notion as Exhibit 2, to support this assertion.
Rule 201 of the Federal Rules of Evidence states that "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." FED. R. EVID. 201(d). The party requesting judicial notice must show that the fact is "one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b).
Fisher's and Mattox's terms of service on the Police Commission are not subject to reasonable dispute. The issue of whether individual Police Commissioners can exercise control over the LAPD is a disputed issue in this matter and the Court cannot judicially notice Defendants' interpretation of the Los Angeles City Charter.
Based on the foregoing, the Court GRANTS Defendants' Request for Judicial Notice of Fisher's and Mattox's terms of service and DENIES Defendants' Request for Judicial Notice whether individual Police Commissioners control LAPD policy.
III. Plaintiff's Argument that this Motion Requires Reconsideration of Judge Letts' Order dated March 26, 1998 Denying Defendants Fisher's and Mattox's Motion for Summary Judgment.
Plaintiff argues that Defendants' Motion for Summary Judgment is, in effect, a request to reconsider Judge Letts' March 26, 1997 Order denying summary judgment for Fisher and Mattox on qualified immunity grounds. "[A] court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998) (quotation omitted). Defendants current summary judgment motion addresses "whether these individuals can be held personally liable as supervisors for the actions of a board that can only act on majority rule." Reply at 2. Judge Letts' Order did not address this issue. Therefore, the Motion is not a motion for reconsideration.
III. Defendants' Motion for Summary Judgment
A. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) permits summary judgment against a party when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c) (emphasis added). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party has the burden of proof at trial, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Id. The Court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage and draws all inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
B. Liability of Fisher and Mattox in their Official Capacities
Defendants argue that because Fisher and Mattox no longer serve on the Police Commission, they cannot be subject to suit in their official capacities. Plaintiff Smith concedes that Fisher and Mattox can no longer be subject to liability in their official capacities. Therefore, Plaintiff is foreclosed from raising official capacity claims against Fisher and Mattox at trial.
C. Liability of Police Commissioners in their Individual Capacities
Defendants argue that Police Commissioners cannot be held personally liable under § 1983 because they act by majority rule and therefore have no authority to unilaterally control LAPD policy or supervise officers.
1. Standard.
A government official may be held personally liable under § 1983. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991);
Supervisory officers are liable under section 1983 for: (1) their own culpable action or inaction in the training, supervision or control of subordinates; (2) their acquiescence in the constitutional deprivation of which a complaint is made; or (3) for conduct that showed a reckless or callous indifference to the rights of others.Cunningham v. Gates, 229 F.3d 1271, 1291 (9th Cir. 2000). "The proper Individual defendants in [a § 1983] action are those official who were in office before or at the time [the plaintiff's rights were violated] and who may have adopted a plan or policy authorizing or approving the alleged unconstitutional conduct." Heller v. Bushey, 759 F.2d 1371, 1375 (9th Cir. 1985), rev'd on othar grounds by 475 U.S. 796 (1986).
As this Circuit explained in Redman v. County of San Diego, 942 F.2d 1435 9th Cir. 1991):
Supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy "itself is a repudiation of constitutional rights' and is the moving force of the constitutional violation." [quoting Thompkins, 828 F.2d at 304) (citations omitted)] This latter liability is not a form of vicarious liability. Rather, it is direct liability. Under direct liability, plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right. [citations] The requisite causal connection can be established . . . by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).Redman at 1447. A government official's acquiescence in a constitutional deprivation may give rise to liability if the official had authority to prevent the constitutional deprivation. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th 1991) (quotation omitted).
Defendants acknowledge that the Los Angeles Charter identifies the Board of Police Commissioners as the head of the Police Department. Moreover, they acknowledge that, under the Charter, the Board "had the power to `supervise, control, regulated and manage' the Police Department and to "make and enforce all necessary and desirable rules and regulations therefor and for the exercise of the powers conferred upon the department by this charter." Motion at 6, quoting Los Angeles City Charter. Nonetheless, they argue that, because these powers are exercised by order or resolution adopted by majority vote, the Commissioners can not be held individually liable under a theory of supervisory liability.
The Ninth Circuit has not directly addressed whether individual members of a police commission or other supervisory body may be held liable, pursuant to the authority granted to them, when they act by majority vote. However, the Ninth. Circuit implicitly recognizes that members of a council or board, which acts by majority vote, may be held individually liable for their conduct. See Navarro v. Block, 250 F.3d 729, 734 (9th Cir. 2001), (permitting a plaintiff to sue members of the Board of Supervisors in their individual capacities under § 1983 and holding that the Supervisors were not immune from suit for bad faith decisions to indemnify officers); Trevino v. Gates, 23 F.3d 1480, 1482-83 (9th Cir. 1994) (holding that Los Angeles City Council members were not entitled to absolute immunity from suit for their past actions in which they voted to indemnify police officers against punitive damage awards); Heller v. Bushey, 759 F.2d 1371, 1375 (9th Cir. 1985), rev'd on other grounds by 475 U.S. 796 (1986) (finding improper district courts' dismissal of individual police commissioners and substitution of the Los Angeles Board of Police Commissioners where "the proper individual defendants in this action are those officials who were in office before or at the time Heller was arrested and who may have adopted a plan or policy authorizing or approving the alleged unconstitutional conduct.") Cinevision Corp. v. City of Burbank, 745 F.2d 560, 579-580 (9th Cir. 1984) (rejecting a city council member's claim that he should receive absolute legislative immunity because the constitutional violation arose from of a council vote and stating "although the local legislative body voted to take certain action. . . . The critical concern in our inquiry was the nature of the action on which the vote was taken."). The Supreme Court also implicitly recognizes potential individual liability under § 1983 for members of majority rule bodies. See Wood v. Strickland, 420 U.S. 308, 319-22 (1975), (holding that individual members of a school board who voted to expel a student could not receive absolute immunity from the student's claim that the expulsion decision violated her rights to procedural due process). In these cases, the Ninth Circuit and the Supreme Court implicitly recognize that members of a council or board which acts by majority vote may be held individually liable.
Defendants cite Doe v. Clairborne County, 103 F.3d 495 (6th Cir. 1996), for the proposition that where Board members have no individual supervisory responsibilities and act only as constituent members of a board majority "individual capacity claims do not lie against them as a matter of law. Motion at 7. In Doe v. Clairborne County, the Sixth Circuit held that individual school board members could not be held liable under section 1983 for deliberate indifference to a teacher's sexual abuse of plaintiff where the plaintiff had failed to establish an identifiable source of duty. Doe, 103 F.3d at 512.
Although Clairborne County appears to be limited to the facts of that case, to the extent that it supports a broad rule that members of majority rule bodies cannot be sued under § 1983 in their individual capacities, as Defendants suggest, the decision conflicts with the result in Navarro, Trevino, and Wood and other cases in this Circuit. The Court therefore rejects the Commissioners' argument that they have no individual liability as supervisors by virtue of the fact they act by majority vote.
The Sixth Circuit stated "[w]e have no occasion to consider whether there is some yet unpleaded obligation for an individual board member affirmatively to act, for example, to inform the School Board as a whole, in the face of known violations of a student's constitutional rights, and whether the failure to act in such circumstances might subject him to section 1983 liability." Claireborne. at 512.
At least one Sixth Circuit case subsequent to Doe v. Clairborne County presumes that school board members can be individually liable for actions taken by vote. Canary v. Osborn, 211 F.324, (6th Cir. 2000) (holding that school board members were not absolutely immune from individual liability under section 1983 when they voted to terminate plaintiffs position because they were acting in an administrative capacity).
Based on the foregoing, the Court DENIES Defendants' Motion for Summary Judgment.
IV. Plaintiff's Submission Pursuant to Rule 56(f)
On October 10, 2001, Plaintiffs filed a "Submission Pursuant to Fed.R.Civ.P. 56(f) filed in Opposition to Motion for Summary Judgment Filed by Raymond Fisher and Art Mattox." Plaintiff urges that "[d]ue to shenanigans" by Fisher and Mattox's prior counsel, the depositions for these defendants did not go forward, and request that these depositions now be allowed to go forward.
Federal Rule of Civil Procedure 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or make such other order as is just.
It is not necessary for Plaintiff to seek additional depositions to respond to Defendants Fisher and Mattox's Motion for Summary Judgment based on the Court's ruling.
Based on the foregoing, the Court DENIES Plaintiff's Submission as moot.
CONCLUSION
Based on the foregoing, the Court DENIES Defendants' Motion for Summary Judgment, and GRANTS, in part, and DENIES, in part, Defendants' Motion for Judicial Notice, and DENIES as moot, Plaintiff's submission pursuant to Rule 56(f).
SO ORDERED.