(PS) Stacker v. CDCR

EUANSTITEERDN S DTIASTTRESIC DTI SOTFR CICATL ICFOOURRNTIA

CIVIL MINUTES - GENERAL

Case No. 2:16-cv-2913-GHW Date October 7, 2019

Title Valerie J. Stacker, et al. v. J. Johnson, et al.

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez Terri A. Hourigan

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Valerie Stacker, PRO SE R. Lawrence Bragg

PROCEEDINGS: DEFENDANTS CARDENAS, LOPEZ AND JOHNSON'S MOTION

FOR SUMMARY JUDGMENT [114]

The Court’s Tentative Ruling is circulated and attached hereto. Court confers with the parties. For

reasons stated on the record, Plaintiff will have until October 18, 2019 to file any supplement brief.

Defendants will respond by October 25, 2019. The matter will stand submitted.

: 12

Stacker, et al. v. Cal. Dep’t of Corrs. & Rehab., et al., Case No. 2:16-cv-2913-GHW

Tentative Ruling on Motion for Summary Judgment

Defendants Cardenas, Lopez and Johnson (“Defendants”) – the only remaining

identified defendants in this action – move for summary judgment. The operative

complaint is the Fourth Amended Complaint (“FAC”) filed May 6, 2019, by plaintiffs, in

pro per, Valerie J. Stacker, individually and as next friend of Jermaine L. Stacker

(“Valerie”), and the Estate of Jermaine L. Stacker (collectively, “Plaintiffs”). The FAC

contains two claims for relief, one (which includes a survival action) pursuant to 42 U.S.C.

§ 1983 for violation of the Eighth and Fourteenth Amendments due to deliberate

indifference to serious medical needs, health and safety and failure to protect, and one for

“general negligence – wrongful death.” According to the undisputed facts, see Footnote 2,

infra, this case concerns events surrounding the death of Jermaine L. Stacker (“Decedent”)

following an apparent fentanyl overdose at Kern Valley State Prison on November 25,

2015, and Plaintiffs’ contention that Defendants should have taken precautions to prevent

the decedent from suffering the overdose.1 See Defendants’ Response to Statement of

Genuine Disputes, Docket No. 135-1, ¶¶ 22, 43, 49, 70-71. Valerie is the Decedent’s

mother. See id. ¶ 1.

For a basic reason discussed below, the Court will grant summary judgment in

Defendants’ favor on Plaintiffs’ Section 1983 claim (and then decline supplemental

jurisdiction over the only other claim pled in the FAC). Before addressing that reason,

however, the Court highlights for the parties the standards that are applied at summary

judgment, because those standards are at least partially responsible for Plaintiffs’ failure to

proceed with this litigation beyond this motion (at least in this Court).

A. Summary Judgment Standards/Rules

Summary judgment is proper when “the movant shows that there is no genuine

1 As stated in ¶ 6 of the FAC:

Defendants Correctional Officer J. Johnson, C/O J. Lopez, C/O J. Cardenas and C/O Does

1-10, at all relevant times herein, were employed by CDCR as correctional officers at

KVSP. On information and belief, they were first responders to the call for help and

medical treatment on November 25, 2015.

See Docket No. 109 at page 3 of 28.

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th

Cir. 2005). To satisfy its burden at summary judgment, moving parties without the burden

of persuasion (such as Defendants here) “must either produce evidence negating an

essential element of the nonmoving party’s claim or defense or show that the nonmoving

party does not have enough evidence of an essential element to carry its ultimate burden of

persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

1102 (9th Cir. 2000) (emphasis added); see also Devereaux v. Abbey, 263 F.3d 1070, 1076

(9th Cir. 2001) (en banc) (“When the nonmoving party has the burden of proof at trial, the

moving party need only point out ‘that there is an absence of evidence to support the

nonmoving party’s case.’”) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),

and citing Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000));

Fairbank, 212 F.3d at 532 (holding that the Celotex “showing” can be made by “pointing

out through argument…the absence of evidence to support plaintiff’s claim”).

If the party moving for summary judgment meets its initial burden of

identifying for the court the portions of the materials on file that it believes

demonstrate the absence of any genuine issue of material fact, the

nonmoving party may not rely on the mere allegations in the pleadings in

order to preclude summary judgment[, but instead] must set forth, by

affidavit or as otherwise provided in Rule 56, specific facts showing that

there is a genuine issue for trial.

T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987)

(internal citations and quotation marks omitted) (emphasis added).

The opposing party must “cit[e] to particular parts of materials in the record” or

show that the materials the moving party cited do not establish the absence or presence of

a genuine dispute. Fed. R. Civ. P. 56(c)(1); see also Fed. R. Civ. P. 56(c)(3) (“The court

need consider only the cited materials, but it may consider other materials in the record.”).

In addition, under this Court’s Local Rules, where the moving party on a motion for

summary judgment has “claimed and adequately supported” material facts, those facts “are

admitted to exist without controversy except to the extent that such material facts are (a)

included in the ‘Statement of Genuine Disputes’ [described in Local Rule 56-2] and (b)

controverted by declaration or other written evidence filed in opposition to the motion.”

See C.D. Cal. L.R. 56-3; see also Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th

Cir. 2009) (“The ‘party opposing summary judgment must direct [the court’s] attention to

specific, triable facts,’ and the reviewing court is ‘not required to comb through the record

to find some reason to deny a motion for summary judgment.’”) (quoting S. Cal. Gas Co.

v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) and Carmen v. San Francisco

Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)); see also Carmen, 237 F.3d at

1029 (“[W]hatever establishes a genuine issue of fact must both be in the district court file

and set forth in the response.”).2

“Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment. Factual disputes

that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). The Court must then determine whether “a reasonable jury

could return a verdict for the nonmoving party.” Id.; see also Triton Energy Corp. v.

Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of

evidence in support of the non-moving party’s position is not sufficient.”).

Generally-speaking, in judging evidence at the summary judgment stage, the court

does not make credibility determinations or weigh conflicting evidence, and views all

evidence and draws all inferences in the light most favorable to the non-moving party. See

T.W. Elec., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Motley v. Parks, 432 F.3d

1072, 1075 n.1 (9th Cir. 2005) (en banc); Miranda, 429 F.3d at 860 n.1. Conclusory,

speculative testimony in affidavits and moving papers is insufficient to raise genuine issues

of fact and defeat summary judgment. See National Steel Corp v. Golden Eagle Ins. Co.,

121 F.3d 496, 502 (9th Cir. 1997); Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730,

738 (9th Cir.1979). And factual assertions made in legal memoranda, but not supported

by the evidence submitted, are insufficient. See S.A. Empresa De Viacao Aerea Rio

Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1980).

B. Plaintiffs’ Section 1983 Claim

With respect to Plaintiffs’ claim based upon 42 U.S.C. § 1983, Defendants have

2 If the Court had need to consider Plaintiffs’ efforts in this regard for purposes of resolving this motion –

which, for the reasons expressed infra, it does not – those efforts would be plainly insufficient given this

District’s Local Rules and this Court’s Standing Order governing summary judgment motions. See Docket

Nos. 121-23, 130.

argued, at least in part, that they are entitled to qualified immunity. As is discussed below,

this puts Plaintiffs to the test of overcoming an increasingly formidable requirement in civil

rights litigation.3

“‘Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). A qualified immunity inquiry

asks two questions: (1) was there a violation of a constitutional right, and, if so, (2) was the

right at issue “clearly established” such that it would have been clear to a reasonable officer

that his conduct was unlawful in that situation? See Saucier v. Katz, 533 U.S. 194, 201-02

(2001), overruled on other grounds by Pearson v. Callahan, 239 S.Ct. 808 (2009). Courts

have discretion to choose which of the two prongs is addressed first. See Plumhoff v.

Rickard, 572 U.S. 765, 774 (2014); Tolan v. Cotton, 572 U.S. 650, 656 (2014).

“Defendants are entitled to [qualified immunity] only if the facts alleged and evidence

submitted, resolved in [Plaintiffs’] favor and viewed in the light most favorable to

[Plaintiffs], show that [Defendants’] conduct did not violate a federal right; or, if it did, the

scope of that right was not clearly established at the time.” Blankenhorn v. City of Orange,

485 F.3d 463, 471 (9th Cir. 2007). Thus, the facts must be viewed in Plaintiffs’ favor.

However, once the facts taken in the light most favorable to the party asserting the

injury show violation of a constitutional right, a court is to examine whether the right at

issue was clearly established at the time of the defendant’s alleged misconduct such that it

would be clear that his conduct was unlawful in the situation he confronted. See Young v.

Cty. of Los Angeles, 655 F.3d 1156, 1167-68 (9th Cir. 2011). “A clearly established right

is one that is ‘sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.’” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting

3 As observed in Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017):

In recent years, the [Supreme] Court has tightened the inquiry [as to qualified immunity]

to focus closely on an analysis of existing precedent. In 2011, the Court clarified that while

it “do[es] not require a case directly on point . . . existing precedent must have placed the

statutory or constitutional question beyond debate,” such that “every” reasonable official

− not just "a" reasonable official − would have understood that he was violating a clearly

established right. Ashcroft [v. al-Kidd], 563 U.S. at 741 (emphasis added). In later cases,

the Court reiterated that clearly established law should not be defined “at a high level of

generality” and that the “dispositive question” is “whether the violative nature of particular

conduct is clearly established.” See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed.

2d 255 (2015) (per curiam) (quoting Ashcroft, 563 U.S. at 742).

Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)); see also Motley, 432 F.3d at 1077

(“Finally, even if the violated right was clearly established,…it may be difficult for a police

officer fully to appreciate how the legal constraints apply to the specific situation he or she

faces. Under such a circumstance, ‘[i]f the officer’s mistake as to what the law requires is

reasonable,…the officer is entitled to the immunity defense.”) (quoting Saucier, 533 U.S.

at 205); Sjurset v. Button, 810 F.3d 609, 616 (9th Cir. 2015). But see Morales v. Fry, 873

F.3d 817, 824-25 (9th Cir. 2017) (characterizing, as “explicitly repudiated by the Supreme

Court,” the Ninth Circuit’s prior “qualified immunity method of analysis evoking ‘double

reasonableness’”). As a result, as it is frequently-phrased, this “immunity protects ‘all but

the plainly incompetent or those who knowingly violate the law.’” White v. Pauly, 137

S.Ct. 548, 551 (2017) (quoting Mullenix, 136 S.Ct. at 308); see also Sheehan v. City & Cty.

of S.F., 135 S.Ct. 1765, 1774 (2015).

For a legal principle to be “clearly established,” it “must have a sufficiently clear

foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is

dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’

It is not enough that a rule is suggested by then-existing precedent.” D.C. v. Wesby, 138

S.Ct. 577, 589-90 (2018) (“Wesby”) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)

(per curiam) and Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011)); see also Plumhoff, 134

S.Ct. at 2024 (referencing the absence of “any case – let alone a controlling case or a robust

consensus of cases” – that clearly established the proposed right); Boyd v. Benton Cty., 374

F.3d 773, 781 (9th Cir. 2004) (“[I]n the absence of binding precedent, we ‘look to whatever

decisional law is available to ascertain whether the law is clearly established for qualified

immunity purposes, including decisions of state courts, other circuits, and district courts.’”)

(quoting Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003))4.

Crucially, it is Plaintiffs who bear the burden of proving the existence of a clearly

established right as of the time of the allegedly impermissible conduct. See Plumhoff, 134

S.Ct. at 2023; Maraziti v. First Interstate Bank of California, 953 F.2d 520, 523 (9th Cir.

4 Boyd’s formulation of the permissible scope of authority that may be considered still appears to be good

law. See, e.g., Estate of Levingston v. Cty. of Kern, No. 1:16-cv-00188-DAD-JLT, 2018 WL 1335410, *9

(E.D. Cal. Mar. 15, 2018). But see S.B. v. Cty. of San Diego, 864 F.3d 1010, 1016 (9th Cir. 2017)

(“‘[D]istrict court decisions – unlike those from the courts of appeals – do not necessarily settle

constitutional standards or prevent repeated claims of qualified immunity.’”) (quoting Hamby v. Hammond,

821 F.3d 1085, 1095 (9th Cir. 2016)).

1992); Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019); Olivier v. Baca,

913 F.3d 852, 860 (9th Cir. 2019); see also Reese v. Cty. of Sacramento, 888 F.3d 1030,

1038 (9th Cir. 2018) (“We agree with the district court that Reese has not identified any

sufficiently analogous cases showing that under similar circumstances, a clearly

established Fourth Amendment right against the use of deadly force existed at the time of

the shooting.”); Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017)

(“In typical cases, the plaintiff ‘identif[ies] a case where an officer acting under similar

circumstances as [the defendant] was held to have violated the Fourth Amendment.’ In the

absence of ‘a case directly on point, we compare ‘specific factors’ relevant to the excessive

force inquiry to determine whether a reasonable officer would have known that the conduct

in question was unlawful.’”) (quoting S.B. v. Cty. of San Diego, 864 F.3d 1010, 1015-16

(9th Cir. 2017) and Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). Equally

(and perhaps more) critically, the Supreme Court has – especially in recent years –

“‘repeatedly told courts – and the Ninth Circuit in particular – not to define clearly

established law at a high level of generality.’” Kisela, 138 S.Ct. at 1152 (quoting Sheehan,

135 S.Ct. 1765, 1775-76 (2015)); see also White, 137 S.Ct. at 552 (“Today, it is again

necessary to reiterate the longstanding principle that ‘clearly established law’ should not

be defined ‘at a high level of generality.’”) (quoting Ashcroft, 563 U.S. at 742); Mullenix,

136 S.Ct. at 308; Sheehan, 135 S.Ct. at 1776 (“Qualified immunity is no immunity at all if

‘clearly established’ law can simply be defined as the right to be free from unreasonable

searches and seizures.”); Wesby, 138 S.Ct. at 590. Instead, “the clearly established law

must be ‘particularized’ to the facts of the case.” White, 137 S.Ct. at 552.

The level of specificity the Supreme Court requires is relatively considerable. For

instance, in Mullenix – though dealing with a factual situation far afield from what is

involved here – the Supreme Court rejected the Fifth Circuit’s formulation of a clearly

established rule as being “that a police officer may not ‘use deadly force against a fleeing

felon who does not pose a sufficient threat of harm to the officer or others.’” 136 S.Ct. at

308-09 (quoting Luna v. Mullenix, 773 F.3d 712, 725 (5th Cir. 2014)). Instead, it required

that the “clearly established” analysis confront the fact that the officer in question

“confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed

vehicular flight, who twice during his flight had threatened to shoot police officers, and

who was moments away from encountering an officer at Cemetery Road.” Id. at 309. It

then distinguished other “excessive force cases involving car chases” by emphasizing

various, relatively granular, distinctions. See id. at 309-10; see also Wesby, 138 S.Ct. at

590-91 (“We start by defining ‘the circumstances with which [the officers] w[ere]

confronted.’ The officers found a group of people in a house that the neighbors had

identified as vacant, that appeared to be vacant, and that the partygoers were treating as

vacant. The group scattered, and some hid, at the sight of law enforcement. Their

explanations for being at the house were full of holes. The source of their claimed

invitation admitted that she had no right to be in the house, and the owner confirmed that

fact.”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Sheehan, 135 S.Ct. at

1777 (“The panel majority concluded that [certain specified cases] ‘would have placed any

reasonable, competent officer on notice that it is unreasonable to forcibly enter the home

of an armed, mentally ill suspect who had been acting irrationally and had threatened

anyone who entered when there was no objective need for immediate entry.’ But even

assuming that is true, no precedent clearly established that there was not ‘an objective need

for immediate entry’ here.”) (quoting 743 F.3d at 1229); Vos v. City of Newport Beach,

892 F.3d 1024, 1035 (9th Cir. 2018) (“Here, officers confronted a reportedly erratic

individual that took refuge in a 7-Eleven, cut someone with scissors, asked officers to shoot

him, simulated having a firearm, and ultimately charged at officers with something in his

upraised hand. The relevant inquiry is whether existing precedent placed the conclusion

that officers acted unreasonably in these circumstances ‘beyond debate.’”) (quoting

Mullenix, 136 S.Ct. at 309); Reese, 888 F.3d at 1039 (“Critically, Reese points to no case

that considered the relevant question whether Deputy Rose, having come within striking

distance of a suspect who had held a knife a fraction of a second before, was objectively

unreasonable in using deadly force before determining whether the suspect still possessed

the knife.”); Estate of Lopez by and through Lopez v. Gelhaus, 871 F.3d 998, 1018 n.17

(9th Cir. 2017).

The Court has reviewed all of Plaintiffs’ filings that might be understood as

contributing to a timely opposition to this motion. See Docket Nos. 121-24, 130-31. The

only attention that it perceives Plaintiffs having given the issue of qualified immunity is a

single sentence in their filing on August 21, 2019, in which they state “Finally Defendants

assert qualified immunity as to Plaintiff’s claims.” Docket No. 131, at 8:17. That is the

entirety of Plaintiffs’ consideration of the topic of qualified immunity – in other words,

there is no discussion of clearly-established law whatsoever.

Pro per plaintiffs are not excepted from the requirements inherent in a summary

judgment motion. See Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018); Thomas v.

Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Bias v. Moynihan, 508 F.3d 1212, 1219 (9th

Cir. 2007) (rejecting argument that “as a pro se litigant the district court should have

searched the entire record to discover whether there was any evidence that supports her

claims” because “[a] district court does not have a duty to search for evidence that would

create a factual dispute” and “[a] district court lacks the power to act as a party’s lawyer,

even for pro se litigants”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on

other grounds, Lacey v. Maricopa Cty., 693 F.3d 896, 925-28 (9th Cir. 2012) (en banc).

They have plainly failed their burden of identifying clearly established law. Therefore,

even if the Court were to assume that Defendants had engaged in one or more violations

of Constitutional rights for purposes of one of the steps set out in Saucier, Plaintiffs’

Section 1983 claim could not proceed beyond this stage because of their failure at the other

step.

In sum, the Court would grant Defendants’ motion as to Plaintiffs’ Section 1983

claim because of Plaintiffs’ wholesale failure to carry their burden of identifying clearly

established law, as understood by the Supreme Court, in order to be able to overcome

Defendants’ qualified immunity defense.

C. General Negligence – Wrongful Death

Defendants present at least two arguments that might dispose of (or at least might

be germane to disposition of) Plaintiffs’ claim for general negligence – wrongful death:

that Valerie lacks standing to sue for wrongful death and that the only claim submitted in

attempted compliance with California’s government claim presentation statutes was a

personal-capacity claim on Valerie’s behalf only. Whatever might be the proper resolution

of those arguments, however, Defendants also argue that once Plaintiffs’ Section 1983

claim is resolved, the Court should decline supplemental jurisdiction over the remainder of

the case and allow Plaintiffs to pursue it in California state court. The Court agrees with

this last suggestion.

When federal claims are resolved at or before the summary judgment stage, the

Supreme Court has indicated that it may be error to maintain supplemental jurisdiction over

related state-law claims. See also 28 U.S.C. § 1367(c)(3) (“The district courts may decline

to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district

court has dismissed all claims over which it has original jurisdiction.”); United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are

dismissed before trial, even though not insubstantial in a jurisdictional sense, the state

claims should be dismissed as well.”); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561

(9th Cir. 2010); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc)

(noting that “state law claims ‘should’ be dismissed if federal claims are dismissed before

trial,” though it is not true that they “must” be dismissed). In light of the Court’s disposition

of Plaintiffs’ Section 1983 claim, that would be the situation here if the Court continued to

maintain jurisdiction over Plaintiffs’ general negligence – wrongful death claim. In

addition, this case is only before this Court following its transfer from the Eastern District

of California due to an over-loaded docket in that District. Declining supplemental

jurisdiction over this last claim at this stage will enable 1) the parties to litigate this action,

if they so choose, in a venue closer to where it was originally-filed, and 2) the state courts

to address the issues of state law Defendants raise as a means to potentially barring

Plaintiffs’ remaining claim. See Gibbs, 383 U.S. at 726 (“Needless decisions of state law

should be avoided both as a matter of comity and to promote justice between the parties,

by procuring for them a surer-footed reading of applicable law.”).

Considering the grounds for the Court’s resolution of this motion, the Court has no

need to resolve Defendants’ evidentiary objections filed on September 19, 2019, in Docket

No. 135-2.5

D. Conclusion

For the reasons stated above, the Court grants Defendants’ motion with respect to

Plaintiffs’ Section 1983 claim and dismisses without prejudice Plaintiffs’ general

negligence/wrongful death claim pursuant to 28 U.S.C. § 1367(c)(3). Plaintiffs may pursue

that latter claim in an appropriate state court, if they are so-inclined.

5 The Court dismisses any remaining Doe defendants due to Plaintiffs’ apparent failure to timely serve

them following filing the FAC. See Fed. R. Civ. P. 4(m).