McCoy v. City of Vallejo ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 KORI MCCOY, individually and No. 2:19-cv-01191-JAM-CKD as Co-Successor-in-Interest 9 to Decedent WILLIE MCCOY, et al., 10 ORDER GRANTING IN PART AND Plaintiffs, DENYING IN PART DEFENDANTS CITY 11 OF VALLEJO, ANDREW BIDOU, MARK v. THOMPSON, BRYAN GLICK, ANTHONY 12 ROMERO-CANO, COLLIN EATON, CITY OF VALLEJO, et al., JORDAN PATZER, STEVE DARDEN, AND 13 KYLE WYLIE’S MOTION FOR Defendants. RECONSIDERATION 14 15 Before this Court is Defendants City of Vallejo, Andrew 16 Bidou, Mark Thompson, Bryan Glick, Anthony Romero-Cano, Collin 17 Eaton, Jordon Patzer, Steve Darden, and Kyle Wylie’s request for 18 reconsideration, (“Mot.”), ECF No. 105, of this Court’s Order 19 granting in part and denying in part Defendants’ motion to 20 dismiss (“Order”), ECF No. 102. Plaintiffs Kori McCoy, Marc 21 McCoy, Louis McCoy, Shawnmell Mitchell, Marquita McCoy, and 22 Barbara Dorsey opposed this motion. See Opp’n, ECF No. 111. 23 Defendants replied. See Reply, ECF No. 113. For the reasons set 24 forth below the Court grants in part and denies in part 25 Defendants’ request.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for September 14, 2021. 1 I. OPINION 2 A. Legal Standard 3 The Federal Rules of Civil Procedure do not expressly 4 provide for motions for reconsideration. But where 5 reconsideration of a non-final order is sought, the court has 6 “inherent jurisdiction to modify, alter or revoke it.” United 7 States v. Martin, 226 F.3d 1042, 10449 (9th Cir. 2000). “The 8 authority of district courts to reconsider their own orders 9 before they become final, absent some applicable rule or statute 10 to the contrary, allows them to correct not only simple 11 mistakes, but also decisions based on shifting precedent, rather 12 than waiting for the time-consuming, costly process of appeal.” 13 Id. Thus local rules permit motions for reconsideration but 14 requires counsel identify “the material facts and circumstances 15 surrounding each motion for which reconsideration is sought, 16 including: (1) when and to what Judge or Magistrate the prior 17 motion was made; (2) what ruling, decision, or order was made 18 thereon; (3) what new or different facts or circumstances are 19 claimed to exist which did not exist or were not shown upon such 20 prior motion, or what other grounds exist for the motion; and 21 (4) why the facts or circumstances were not shown at the time of 22 the prior motion.” E.D. Cal. Local R. 230(j). 23 B. Analysis 24 1. Supervisory Claim 25 Defendants first request reconsideration of the Court’s 26 ruling declining to dismiss Plaintiffs’ eighth cause of action 27 for supervisory liability against Sergeant Wiley and Lieutenant 28 Darden. Mot. at 5. Defendants argue the Court’s conclusion — 1 that Plaintiffs stated a plausible claim for supervisory 2 liability based on Plaintiffs’ allegations that Darden and Wylie 3 ignored the call and their subordinates used excessive force as 4 a result — overlooked the Police Department’s Computer Aided 5 Dispatch (“CAD”) report which shows both officers arrived on 6 scene within minutes of being dispatched. Id. Defendants claim 7 it is thus implausible that Darden or Wylie ignored the call. 8 Id. But at this early stage of litigation, on a motion to 9 dismiss, the Court must accept Plaintiffs’ factual allegations 10 as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 11 Defendants appear to misunderstand the scope of judicial 12 notice. See Mot. at 5-7. While the Court can and did take 13 judicial notice of the existence of the CAD, it cannot take 14 judicial notice of any disputed facts contained within. See Lee 15 v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). 16 Because of this, judicially noticed documents are rarely helpful 17 in a motion to dismiss, although often relied upon by attorneys. 18 Thus, the Court cannot at this early stage conclude that Darden 19 or Wylie arrived on scene within minutes of being dispatched as 20 Defendants contend. See id. Rather, the Court must accept as 21 true Plaintiffs’ factual allegation that Darden and Wylie 22 ignored the call. See Iqbal, 556 U.S. at 678. 23 Defendants also argue the Court misapplied legal precedent, 24 specifically its reliance on Calhoon v. City of South Lake 25 Tahoe, 19-cv-02165-KJM-JDP, 2020 WL 5982087 (E.D. Cal. Oct. 8, 26 2020). Mot. at 7. Defendants contend Calhoon is 27 distinguishable because in that case the supervisor was present 28 on the scene. Id. Thus, Defendants’ claim federal law imposes 1 a duty to intervene on officers who are on the scene when a 2 constitutional violation occurs, but no similar rule exists for 3 holding supervisors liable when they are not present. Id. The 4 Court does not construe the precedent so narrowly. It has been 5 held that a supervisor can be liable “for his acquiescence in 6 the constitutional deprivation.” Calhoon, 2020 WL 5982087, at 7 *8 (quoting Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2012)). 8 The Court is not persuaded that to acquiesce to a constitutional 9 violation one must be physically present. Rather, the 10 supervisor merely needs to be aware the conduct is occurring. 11 See Starr, 652 F.3d at 1208 (finding plaintiff stated a 12 plausible claim of supervisory liability even though the 13 supervisor was not present when the constitutional violation 14 occurred as he was aware of such misconduct); compare with 15 Edgerly v. City and Cty. of San Francisco, 599 F.3d 946, 961-62 16 (9th Cir. 2010) (finding no reasonable trier of fact could find 17 supervisor liable when he was not aware of the constitutional 18 violation until after it was completed). This awareness can 19 come from physically observing the conduct or as alleged here, 20 being made aware over the radio. For these reasons the Court 21 DENIES Defendants’ request for reconsideration of this Court’s 22 decision not to dismiss Plaintiffs’ eighth claim for supervisory 23 liability. 24 2. Conspiracy 25 Defendants also request reconsideration of this Court’s 26 decision not to dismiss Plaintiffs’ seventh cause of action for 27 conspiracy. See Mot. at 8. They contend that because the 28 Court’s ruling relied on the allegation that Darden and Wylie eee I ORE IRIE III IID RISD ENE OE OS OSE)! I ED OE 1 ignored the call, the Court also erred as the CAD records show 2 they did not. Mot. at 8. As explained above, the Court cannot 3 take judicial notice of disputed facts within the CAD records. 4 | See Lee, 250 F.3d at 689-90. Accordingly, the Court DENIES 5 Defendants’ request for reconsideration of this claim. 6 3. Factual Error 7 Defendants also request the Court correct a misstatement in 8 | the Order that the officers killed a bystander. See Mot. at 8 9 (citing Order at 11:21). The Court GRANTS this request and 10 vacates that portion of the Order. See Order at 11:21 (“The 11 officers shot fifty-five times, killed McCoy, and killed □ 12 bystander” shall be changed to “The officers shot over fifty 13 times and killed McCoy.”) 14 Il. ORDER 15 For the reasons set forth above, the Court GRANTS IN PART 16 | and DENIES IN PART Defendants’ Motion for Reconsideration. 17 Defendants’ request for reconsideration of this Court’s decision 18 not to dismiss Plaintiffs’ seventh and eighth causes of actions 19 is DENIED. Defendants’ request to correct a factual mistake in 20 the Order is GRANTED. 21 IT IS SO ORDERED. 22 Dated: November 4, 2021 23 kA 24 teiren staves odermacr 7008 25 26 27 28