Corbera v. Taylor ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 WESLEY CORBERA, as executor of No. 2:21-cv-01998 WBS KJN the estate of Harrison Carmel 13 Breedlove, deceased, 14 Plaintiff, MEMORANDUM AND ORDER RE: DEFENDANT COUNTY OF SHASTA’S 15 v. MOTION TO DISMISS 16 HENRY JAMES TAYLOR, COUNTY OF SHASTA, and DOES 1 through 10, 17 Defendants. 18 19 ----oo0oo---- 20 Plaintiff Wesley Corbera, as personal representative of 21 the estate of decedent Harrison Carmel Breedlove and trustee for 22 the estate of decedent’s mother Patricia Breedlove, brought this 23 § 1983 action against defendants Henry James Taylor and the 24 County of Shasta. Plaintiff seeks survival and wrongful death 25 damages for an alleged violation of substantive due process under 26 the Fourteenth Amendment. (First Am. Compl. (“FAC”) (Docket No. 27 1).) Defendant County of Shasta now moves to dismiss plaintiff’s 28 1 entire First Amended Complaint pursuant to Federal Rule of Civil 2 Procedure 12(b)(6). (Docket No. 32 (“Mot.”).) 3 I. Factual and Procedural Background1 4 Defendant Henry James Taylor was a deputy at the Shasta 5 County Sheriff’s Department. (FAC ¶ 26.) On or about November 6 6, 2019 at 6:31 p.m., the Shasta Area Safety Communications 7 Agency received a 911 call reporting that individuals who were 8 only authorized to be at a vacant house during daylight hours 9 were there after dark. (Id. ¶ 38.) The caller stated, “I don’t 10 think it’s an emergency.” (Id. ¶ 39.) At 7:51 p.m.--over an 11 hour later--a Shasta County Sheriff’s deputy was assigned to 12 respond to the call, which dispatch classified as a “possible 13 602,” indicating misdemeanor trespassing. (Id. ¶ 41.) Around 14 the same time, a second deputy volunteered to proceed to the 15 house as backup. (Id. ¶ 42.) Neither deputy considered the call 16 an emergency. (Id. ¶¶ 41-42.) 17 At 7:53 p.m., a dispatcher inquired whether defendant 18 Taylor was available to act as additional backup, and Taylor 19 accepted the assignment. (Id. ¶¶ 43-44.) On his way to the 20 house, Taylor stopped at a red light for approximately one 21 minute. (Id. ¶ 57.) He thereafter turned onto State Route 299 22 and accelerated his vehicle, reaching speeds of over 100 miles 23 per hour in an area with a posted speed limit of 55 miles per 24 hour. (Id. ¶ 58.) Taylor did not follow the statutory and 25 regulatory requirements for responding “Code 3,” under which law 26 enforcement officers are permitted to violate traffic regulations 27 1 All facts recited herein are as alleged in the First 28 Amended Complaint unless otherwise noted. 1 in order to more quickly respond to an emergency. (See id. ¶¶ 2 19-20, 45-46, 53-54.) Specifically, Taylor did not inquire 3 whether the call was an emergency and did not inform the 4 dispatcher he intended to respond on a “Code 3” basis. (Id. ¶¶ 5 45-46, 53-54.) He did not turn on his vehicle’s flashing lights 6 or sirens. (Id. ¶ 56.) 7 After passing a “Deer Crossing” sign on Route 299, 8 Taylor struck and killed a deer while traveling over 109 miles 9 per hour. (Id. ¶ 46.) Taylor lost control of the vehicle and 10 crossed the center line into oncoming traffic. (Id. ¶¶ 47-48.) 11 At approximately 8:00 p.m., Taylor, driving at over 105 miles per 12 hour, struck an oncoming vehicle in which Harrison Breedlove was 13 a passenger. (Id. ¶¶ 50-51.) Breedlove later died due to 14 injuries sustained during the collision. (Id. ¶ 52.) Taylor 15 stated in an interview after the incident that his conduct was 16 justified by a need to catch up to the deputies he was backing 17 up. (Id. ¶ 71.) 18 Plaintiff filed a negligence action against defendants 19 in Shasta County Superior Court in August 2020. (See Ex. A to 20 Decl. of Nicholas Pyle (Docket No. 32-2).) Criminal proceedings 21 were also brought against defendant Taylor. (See Ex. D to Decl. 22 of Nicholas Pyle (Docket No. 32-5).) The state court case has 23 been stayed pending resolution of the criminal proceedings.2 24 (Id.)3 25 2 Despite the pending criminal action, defendant has not requested that this case be stayed. 26 3 To the extent that the parties request that the court 27 take judicial notice of the existence of various filings in plaintiff’s state court action (Docket No. 32-6) and the criminal 28 charges filed against defendant Taylor (Docket No. 34-2), the 1 II. Legal Standard 2 Federal Rule of Civil Procedure 12(b)(6) allows for 3 dismissal when the plaintiff’s complaint fails to state a claim 4 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 5 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” 6 The inquiry before the court is whether, accepting the 7 allegations in the complaint as true and drawing all reasonable 8 inferences in the plaintiff’s favor, the complaint has alleged 9 “sufficient facts . . . to support a cognizable legal theory,” 10 id., and thereby stated “a claim to relief that is plausible on 11 its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 12 Courts are not, however, “required to accept as true 13 allegations that are merely conclusory, unwarranted deductions of 14 fact, or unreasonable inferences.” Sprewell v. Golden State 15 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl. Corp., 16 550 U.S. at 555. Accordingly, “for a complaint to survive a 17 motion to dismiss, the non-conclusory ‘factual content,’ and 18 reasonable inferences from that content, must be plausibly 19 suggestive of a claim entitling the plaintiff to relief.” Moss 20 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting 21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 22 III. Discussion 23 Although § 1983 is not itself a source of substantive 24 rights, it provides a cause of action against any person who, 25 under color of state law, deprives an individual of federal 26 requests are GRANTED. See Burbank–Glendale–Pasadena Airport 27 Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998). However, those documents do not ultimately affect the court’s 28 conclusions. 1 constitutional or statutory rights. 42 U.S.C. § 1983; Graham v. 2 Connor, 490 U.S. 386, 393–94 (1989). Here, the federal right 3 that plaintiff seeks to vindicate stems from the substantive 4 component of the Fourteenth Amendment’s Due Process Clause. 5 Substantive due process “forbids the government from 6 depriving a person of life, liberty, or property in such a way 7 that ‘shocks the conscience’ or ‘interferes with the rights 8 implicit in the concept of ordered liberty.’” Corales v. 9 Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (quoting United States 10 v. Salerno, 481 U.S. 739, 746 (1987)) (internal citation 11 omitted). 12 There are two culpability standards that dictate 13 whether conduct sufficiently “shocks the conscience” to establish 14 a due process violation. See Porter v. Osborn, 546 F.3d 1131, 15 1137 (9th Cir. 2008). Defendant argues that the “intent to harm” 16 standard controls here, while plaintiff argues that the lower 17 “deliberate indifference” standard applies. 18 In County of Sacramento v. Lewis, 523 U.S. 833 (1998), 19 the Supreme Court considered a substantive due process claim 20 premised on a police car chase that resulted in the plaintiff’s 21 death. The officer engaged in a high-speed pursuit of a 22 motorcycle, which reached speeds up to 100 miles per hour. Id. 23 at 836–37. In determining whether the officer’s conduct “shocked 24 the conscience,” the court rejected the deliberate indifference 25 standard applied by the lower court. See id. at 854. The court 26 held that “high-speed chases with no intent to harm suspects 27 physically or to worsen their legal plight do not give rise to 28 liability” for a deprivation of substantive due process under the 1 Fourteenth Amendment. See id. 2 The Lewis court likened a police officer in a high- 3 speed chase to the prison officials responding to a prison riot 4 in Whitley v. Albers, 475 U.S. 312 (1986). In Whitley, the 5 officers were not liable under the Eighth Amendment for a 6 shooting that occurred while responding to the riot. Id. at 326. 7 The Lewis court reasoned that both a police pursuit and a prison 8 riot necessitate “fast action” and require officers to balance 9 “obligations that tend to tug against each other.” Lewis, 523 10 U.S. at 853. Officers in each scenario “are supposed to act 11 decisively and to show restraint at the same moment, and their 12 decisions have to be made ‘in haste, under pressure, and 13 frequently without the luxury of a second chance.’” Id. (quoting 14 Whitley, 475 U.S. at 320). In such circumstances, the higher 15 intent to harm standard is appropriate. See id. 16 The Lewis court contrasted these circumstances with 17 DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 18 (1989), where prison officials faced Eighth Amendment liability 19 under a deliberate indifference standard for failing to provide 20 medical care to prisoners. Lewis, 523 U.S. at 851–52. There, 21 officers “[had] time to make unhurried judgments, upon the chance 22 for repeated reflection, largely uncomplicated by the pulls of 23 competing obligations.” Id. at 853. In such cases where “actual 24 deliberation is practical,” “deliberate indifference can rise to 25 a constitutionally shocking level.” See id. at 851-52. 26 The Ninth Circuit has applied Lewis’s reasoning to a 27 variety of cases involving police conduct, indicating that the 28 intent to harm standard applies whenever an officer confronts an 1 emergency requiring fast action in the face of competing 2 obligations. See Bingue v. Prunchak, 512 F.3d 1169, 1176 (9th 3 Cir. 2008) (because high-speed chases are by their nature 4 “genuine emergenc[ies]” requiring officers to “make repeated 5 split-second decisions about how best to apprehend the fleeing 6 suspect in a manner that will minimize risk to their own safety 7 and the safety of the general public,” an intent to harm standard 8 applies and officer did not violate substantive due process 9 rights by causing collision during high-speed chase); Porter, 546 10 F.3d at 1139 (because Lewis and Ninth Circuit precedent “require 11 [that the purpose to harm standard apply] when an officer 12 encounters fast paced circumstances presenting competing public 13 safety obligations,” officer did not violate substantive due 14 process rights by shooting suspect during five-minute, “quickly 15 evolving and escalating” altercation); Moreland v. Las Vegas 16 Metro. Police Dep’t, 159 F.3d 365, 372–73 (9th Cir. 1998) (under 17 Lewis, officers “did not violate the plaintiffs’ substantive due 18 process rights to family association when [they] accidentally 19 shot and killed [an alleged bystander], because the officers were 20 responding to the extreme emergency of public gunfire and did not 21 intend to commit any harm unrelated to the legitimate use of 22 force necessary to protect the public and themselves”). 23 The Ninth Circuit has also explained that, based on 24 Lewis, the key consideration in determining whether the 25 deliberate indifference standard applies to a substantive due 26 process claim is whether “‘actual deliberation is practical.’” 27 See Porter, 546 F.3d at 1137 (quoting Lewis, 523 U.S. at 851); 28 Moreland, 159 F.3d at 372 (same); Zion v. Cnty. of Orange, 874 1 F.3d 1072, 1077 (9th Cir. 2017) (same); Wilkinson v. Torres, 610 2 F.3d 546, 554 (9th Cir. 2010) (same). 3 In Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008), 4 the Ninth Circuit considered a case involving a high-speed police 5 pursuit of a vehicle. Following Lewis, the Bingue court held 6 that the intent to harm standard applies to “all high-speed 7 chases” involving police officers and rejected a distinction 8 between “emergency” and “non-emergency” police chases. Id. at 9 1170–71, 1176 (emphasis added). The court reasoned that “drawing 10 such an arbitrary distinction between ‘emergency’ and ‘non- 11 emergency’ situations discounts the split second decisions an 12 officer must make when deciding whether to engage in a high-speed 13 chase. In such circumstances, officers must operate under great 14 pressure and make repeated split-second decisions about how best 15 to apprehend the fleeing suspect in a manner that will minimize 16 risk to their own safety and the safety of the general public.” 17 Id. at 1176. Further, “[t]he sheer velocity of a high-speed 18 chase necessarily converts each situation into a genuine 19 ‘emergency.’” Id. The Bingue court also followed Ninth Circuit 20 precedent requiring consideration of whether actual deliberation 21 was practical, reasoning that the deliberate indifference 22 standard was inappropriate because “[a]n officer attempting to 23 apprehend a suspect fleeing at high speed” has “no time for 24 reflection and precious little time for deliberation.” See id. 25 Relying on Bingue, defendant argues that the court 26 should mechanically apply the intent to harm standard here. 27 However, Bingue clearly limited its reasoning to cases involving 28 high-speed pursuits, which are by their nature considered 1 emergencies. See 512 F.3d at 1170–71, 1176. See also Lewis, 523 2 U.S. at 834 (“rules of due process are not subject to mechanical 3 application in unfamiliar territory,” but rather require “an 4 exact analysis of context and circumstances”). 5 Defendant also argues that this court’s prior decision 6 in Suit v. City of Folsom supports its position. Suit was a 7 straightforward application of Bingue to a high-speed car chase 8 and is similarly inapposite. See Case No. 2:16-00807 WBS, 2016 9 WL 6696060, at *3 (E.D. Cal. Nov. 14, 2016) (applying intent to 10 harm standard in case involving police car chase of a suspect 11 that was driving “reckless[ly]” because “Ninth Circuit precedent 12 . . . holds the intent to harm standard applies to all high-speed 13 chases”) (citing Bingue, 512 F.3d at 1177) (emphasis added). 14 Defendant emphasizes that the car chase in Suit occurred after 15 the officer pulled over the suspect on a “cold” misdemeanor. See 16 id., at *1. However, under Bingue, it is not the underlying 17 reason for the chase that matters, but rather the fact that the 18 officer is engaging in a chase at all, which is necessarily 19 preceded by a quick decision to engage. See Bingue, 512 F.3d at 20 1167. 21 In contrast to Bingue and Suit, the instant case 22 involves a police officer merely driving, not engaging in a car 23 chase. The Ninth Circuit has contrasted the high-speed chases 24 contemplated by Bingue, to which the intent to harm standard 25 applies, with the type of non-emergency situations discussed in 26 Lewis that are appropriately considered under a deliberate 27 indifference standard. See Porter, 546 F.3d at 1139. 28 To determine which standard to apply, the court must 1 evaluate whether “actual deliberation is practical” where a 2 police officer drives a vehicle in a non-emergency, non-pursuit 3 context, such that the deliberate indifference standard applies. 4 See id. at 1137. While the parties have not identified, nor has 5 the court found, any binding on-point authority, other circuits 6 have confronted this question. In Browder v. City of 7 Albuquerque, the Tenth Circuit--in an opinion authored by then- 8 Judge Gorsuch--applied the deliberate indifference standard in a 9 case involving a collision caused by an officer who sped and ran 10 red lights while neither in pursuit nor facing an emergency. 787 11 F.3d 1076, 1080-81 (10th Cir. 2015) (Gorsuch, J.). The court 12 reasoned that while “Lewis held specific intent may be required 13 to suggest arbitrary or conscience-shocking behavior in cases 14 where the officer has been asked to respond to emergencies of 15 citizens in need,” it “never suggested that such a demanding form 16 of mens rea is necessary or appropriate . . . in cases where the 17 officer isn’t pursuing any emergency” such that “forethought is 18 feasible.” See id. at 1080-81. Affirming the district court’s 19 denial of a motion to dismiss, the court found that, accepting 20 the plaintiff’s allegations as true, the officer’s conduct 21 constituted deliberate indifference. See id. at 1077, 1082. 22 Both the Fourth and Seventh Circuits came to similar 23 conclusions.4 In Flores v. City of South Bend, the Seventh 24 4 The parties also discussed Sauers v. Borough of Nesquehoning, 905 F.3d 711 (3d Cir. 2018). However, this case is 25 not on point. Sauers involved an officer pursuing a suspect in his vehicle (i.e., a car chase). See 905 F.3d at 715. The 26 differences noted by defendant between the Third Circuit’s reasoning in Sauers and the Ninth Circuit’s decision in Bingue 27 concerning whether emergency/non-emergency distinctions are appropriate in cases involving car chases, see id. at 718, are 28 therefore irrelevant here. 1 Circuit applied the deliberate indifference standard where the 2 officer’s conduct in driving between 78 and 98 miles per hour in 3 an area with a posted speed limit of 30 miles per hour was 4 “unjustified by any emergency.” 997 F.3d 725, 730 (7th Cir. 5 2021). The court reasoned that “[i]dentical behavior considered 6 reasonable in an emergency situation” might nonetheless establish 7 liability “when state actors have time to appreciate the effects 8 of their actions.” Id. at 729 (citing Lewis, 523 U.S. at 850). 9 As such, the officer’s conduct as alleged by the plaintiff 10 constituted deliberated indifference and denial of a motion to 11 dismiss was appropriate. See id. at 734. 12 In Dean v. McKinney, the Fourth Circuit applied the 13 deliberate indifference standard in a case involving an officer 14 who was driving 38 miles per hour over the speed limit while 15 responding to a non-emergency call. 976 F.3d 407, 412, 415-16 16 (4th Cir. 2020). The court, also relying on Lewis, explained 17 that “when an officer is able to make unhurried judgments with 18 time to deliberate, such as in the case of a non-emergency, 19 deliberate indifference is the applicable culpability standard 20 for substantive due process claims involving driving decisions.” 21 Id. at 415 (citing Lewis, 523 U.S. at 853). The Fourth Circuit 22 affirmed the district court’s finding that “a reasonable jury 23 could conclude that [the officer] violated [the plaintiff’s] 24 substantive due process right.” Id. at 413.5 25 5 Defendant argues that the Eighth Circuit’s decision in Sitzes v. City of West Memphis Arkansas, 606 F.3d 461 (8th Cir. 26 2010), supports its position. The court disagrees. In Sitzes, the officer caused a collision while responding to a call that 27 plaintiff argued was not factually an emergency, while defendant presented evidence that the officer subjectively believed it to 28 be an emergency. Id. at 468. The Eighth Circuit rejected 1 Based on Lewis, Ninth Circuit precedent, and multiple 2 on-point circuit decisions, the court concludes that the 3 deliberate indifference standard applies to substantive due 4 process claims premised on a police officer’s driving in a non- 5 emergency, non-pursuit context. See Lewis, 523 U.S. at 851, 853; 6 Porter, 546 F.3d at 1139; Browder, 787 F.3d at 1080-81; Flores, 7 997 F.3d at 729; Dean, 976 F.3d at 415. Chief Judge Mueller of 8 this court previously came to the same conclusion in a case that 9 involved “no allegation of a high-speed chase rather only high- 10 speed driving.” See McGowan v. County of Kern, No. 1:15-cv-01365 11 KJM SKO, 2016 WL 159232, at *5 (E.D. Cal. Jan. 13, 2016) 12 (explaining that if the officer “faced no true emergency and so 13 had a practical opportunity to consider slowing for a red light 14 and checking for other traffic,” the plaintiffs could state a 15 substantive due process claim “under a theory of deliberate 16 indifference”). 17 The court next considers whether plaintiff has 18 sufficiently pled facts indicating that Taylor did not face an 19 emergency and had time to deliberate on his actions such that he 20 plaintiff’s arguments that the situation was not a true emergency 21 and applied the intent to harm standard. It based its reasoning on prior Eighth Circuit precedent holding that “substantive due 22 process liability turns on the intent of the government actor” and thus “forecloses inquiry into the objective nature of the 23 emergency.” Id. (citing Terrell v. Larson, 396 F.3d 975, 980 (8th Cir. 2005)). The Ninth Circuit does not appear to follow a 24 similar rule. See Brittain v. Hansen, 451 F.3d 982, 991, 998 (9th Cir. 2006) (considering “objective reasonableness” of 25 officer’s conduct in analyzing substantive due process claim under “shocks the conscience” standard). As such, the reasoning 26 in Sitzes is not persuasive. At any rate, as discussed below, the facts as alleged 27 by plaintiff suggest that Taylor did not subjectively believe the call to be an emergency. Thus, even if the court were to adopt 28 the rule applied in Sitzes, the result here would be the same. 1 was deliberately indifferent. Here, plaintiff does not allege-- 2 and defendant does not argue--that the call was factually an 3 emergency. Plaintiff alleges that the misdemeanor trespassing 4 call was both described by the caller as a non-emergency and 5 classified as a non-emergency by dispatch when communicating with 6 the responding officers. (FAC ¶¶ 39, 41.) Dispatch did not tell 7 Taylor that the call was an emergency, and the two other 8 responding officers did not believe the call to be an emergency. 9 (Id. ¶¶ 41-42.) Although Taylor stated that his conduct was 10 justified by a need to catch up to the deputies he was backing up 11 (id. ¶ 71), the facts as alleged by plaintiff suggest that he did 12 not subjectively believe the call was an emergency; Taylor waited 13 for approximately one minute at a stoplight while en route and 14 did not follow the required protocols for responding on an 15 emergency basis by failing to confirm the call’s emergency status 16 with dispatch and activate his lights and sirens. (See id. ¶¶ 17 53-57.) 18 Plaintiff alleges that approximately seven minutes 19 elapsed between the time Taylor agreed to respond to the call and 20 the time of the collision (see id. ¶¶ 43, 50), which tends to 21 show that he had sufficient time to deliberate. See Dean, 976 22 F.3d at 416 (trier of fact could find that officer had “ample 23 time to consider” his actions during two minutes and fifteen 24 seconds that elapsed between notification that the call was not 25 an emergency and the collision); Browder, 787 F.3d at 1082 (trier 26 of fact could find that officer had adequate time to deliberate 27 during eight minutes that elapsed between the time he started 28 speeding and the collision). Taylor’s conduct in waiting at a eee ee een enn nen enn nn nn EN I OE IN 1 stop light for nearly a minute while responding to the call 2 further supports this inference. (See FAC I 57.) 3 The court therefore finds that plaintiff has alleged 4 facts tending to show that Taylor was facing a non-emergency 5 Situation in which he had time to deliberate on his actions. As 6 such, plaintiff has sufficiently stated a substantive due process 7 claim under a theory of deliberate indifference. 8 IT IS THEREFORE ORDERED that defendant County of 9 Shasta’s motion to dismiss (Docket No. 32) be, and the same 10 hereby is, DENIED. . . 11 Dated: December 15, 2022 hhh A fh ee WILLIAM B. SHUBB 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14