Engert v. Stanislaus Cnty.

IRINA ENGERT, ANNE ENGERT, and RON ENGERT,Individually and as Successors-in-Interest to Glendon Engert, Plaintiffs, v. STANISLAUS COUNTY, et al., Defendants.

1:13-CV-00126 LJO BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 29, 2015

REDACTED¹ MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docs. 102, 104 & 133)

I. INTRODUCTION

On April 12, 2012, Deputies Robert Paris ("Paris") and Michael Glinskas ("Glinskas") of the Stanislaus County Sheriff's Department were performing an eviction at 2141 Chrysler Drive, Unit #1 in Modesto, California ("the Property"). A civilian locksmith, Glendon Engert ("Engert"), was present to drill out the lock on the front door. During the course of the eviction, the tenant, Jim Richard Ferrario, Jr. ("Ferrario"), shot and killed Paris and Engert. Engert's wife and parents (collectively, "Plaintiffs") bring this lawsuit against Paris's estate, Glinskas, Sergeant Manuel Martinez ("Martinez") (Paris's and Glinskas's direct supervisor), Lieutenant Cliff Harper ("Harper") (Martinez's supervisor), and the County of Stanislaus (the "County"), alleging, among other things, that Defendants are liable under 42 U.S.C. § 1983 ("Section 1983") for violating Plaintiffs' Fourteenth Amendment rights to substantive due process under the so-called "danger creation" exception/doctrine by placing Engert in the path of aknown danger with deliberate indifference to his personal, physical safety. See generally Doc. 37, Second Amended Complaint ("SAC"). Plaintiffs also bring a state law negligence/wrongful death claim against all Defendants. Id.²

Before the Court are three sets of motions for summary judgment:

(1) Paris and Glinskas move together for summary judgment that:

(a) the record does not support a danger creation claim;

(b) because the contours of the danger creation exception are not clearly established, Paris and Glinskas are entitled to qualified immunity;

(c) because there is no liability under the federal civil rights claim, there can be no liability for wrongful death; and

(c) no viable negligence claim can exist based on the facts of this case, and/or Paris and Glinskas are immune from liability for negligence. Doc. 102-1.

(2) Martinez moves separately for summary judgment that:

(a) he is not directly liable under any possible danger creation theory;

(b) he cannot be held liable on a supervisory liability theory because Plaintiffs cannot establish a sufficient causal connection between Martinez's conduct and any constitutional violation;

(c) he is entitled to qualified immunity because the contours of the danger creation exception, particularly when applied to Martinez's involvement, are not clearly established; and

(c) no viable negligence claim can exist in this case against Martinez and/or Martinez is immune from liability for negligence. Doc. 202.

(3) Harper and the County³ move separately for summary judgment that:

(a) Harper cannot be directly liable because he was not personally involved in the eviction process;

(b) Plaintiffs' supervisory liability claim against Harper cannot succeed because there was no underlying constitutional violation and/or because Plaintiffs cannot establish a sufficient causal connection between Harper's conduct and any constitutional violation;

(c) qualified immunity protects Harper;

(d) Harper cannot be held liable on Plaintiffs' state law negligence/wrongful death claims because they are not premised upon Harper's personal involvement and public servants cannot be held liable for the torts of their inferiors; likewise, because Plaintiffs' state law claims against the County are premised upon Harper's liability, the County is protected against liability under state law; and

(e) the County is immune from liability under state law because Martinez, Glinskas, and Paris are immune. Doc. 131.

II. FACTUAL BACKGROUND⁴

A. Background on Stanislaus County Civil Division and the Eviction Process.

The Stanislaus County Sheriff's Department Civil Division ("Civil Division") provides a variety of civil process services, including evictions. Joint Statement of Undisputed Material Facts ("JUMF"), Doc. 104-2 ("JUMF") #1. As of April 12, 2012, the Civil Division included the following sworn personnel: Harper, Martinez, Paris, Glinskas, and Deputy Jennifer Humble ("Humble"). JUMF #4. As of that date, Deputy Glinskas had been assigned to the Civil Division for approximately three weeks.DUMF #3. The Civil Division is assisted by non-sworn Civil Legal Clerks. JUMF #5. As of April 12, 2012, the Supervising Clerk was Connie Watson ("Watson"); Sharman Juarez ("Juarez") was a Civil Legal Clerk. Id.

An "eviction" refers to the service and enforcement of a judgment of a Writ of Possession obtained by a property owner upon the completion of an unlawful detainer action in California Superior Court. JUMF #2. The eviction procedure consists of two main steps: the posting of the Notice of Eviction, commonly referred to as a Five Day Notice, and the service of the Notice of Restoration, wherein the property owner takes possession of the property. JUMF #3. The property owner normally gains access to the property by using their set of keys, or, where the property owner does not have keys, by hiring a locksmith to pick or drill, and ultimately change, the locks. Defendants' Undisputed Material Facts ("DUMF"), Doc. 194⁵, ##1-2.

Civil Division policy provides:

[D]eputies shall recognize that each eviction has the potential for becoming an emotional and dangerous situation.

1. The enforcement of an eviction writ shall be accomplished by a team composed of two deputies.

2. The deputies shall exercise officer safety when contacting the tenants or other involved individuals, when making entry into the property, and during the removal of the occupants.

3. Every effort shall be made to defuse all hostile situations so that peaceful restoration of the property can be effected.

Stanislaus County Sheriff's Department Civil Unit Policies and Procedures No. 2.01 IV(A)(1), Declaration of Richard Schoenberger ("Schoenberger Decl."), Ex. 14, Doc. 155 at COUNTY 003142.

B. Initiation of the Eviction Process.

In late 2011, RT Financial purchased the Property in a foreclosure sale. JUMF #7. Roni Roberts ("Roberts"), the President of RT Financial, engaged Paul Tunison ("Tunison") of Patriot Eviction Services to assist with contacting the then-current occupant. JUMF ## 6, 8. Although Tunison discovered the occupant was Ferrario, Tunison never was able to make contact with Ferrario. DUMF #4.

RT Financial filed an unlawful detainer action in the Superior Court of California, County of Stanislaus, to regain possession of the Property and remove the current occupant. JUMF #9. Judgment was granted in favor of RT Financial on April 5, 2012, and RT Financial obtained a Writ of Possession. JUMF #10. Prior to April 5, 2015, the Stanislaus County Sherriff's Department played no role in and had no interaction with the Property or its occupant. DUMF #5.

On April 5, 2012, Tunison commenced the eviction process with the Civil Division. JUMF #12. Tunison provided a copy of the Writ of Possession to the Civil Division, filled out the initial information sheet, and paid the fee of $125.00. DUMF #6. The Notice of Eviction (Five Day Notice) was scheduled for posting on April 6, 2012. JUMF #13. Humble served the Five Day Notice on the Property on April 6, 2012. JUMF #14. No one answered the door to accept service, DUMF #8, so she posted the Notice on the door of the Property with tape. Martinez's Separate Statement of Undisputed Material Facts ("MUMF"), Doc. 203, #30. Deputy Humble did not note anything dangerous about the Property during the time she was completing the posting. DUMF #6.

C. Events Leading Up to the Eviction at the Property.

The second step of the eviction, service of the Notice of Restoration, was scheduled for April 12, 2012. JUMF #15. To initiate the process, Civil Division Civil Legal Clerks contact the person identified on the information sheet the day before the scheduled lockout. JUMF #16. The Legal Clerk assigned to calls that day uses an "eviction questionnaire," which covers a series of questions about the property. Id. A "trip ticket" is prepared for the eviction, which is provided to the Deputies who will be completing theeviction procedure. Id.

On April 11, 2012, Civil Clerk Juarez contacted eviction agent Tunison to communicate information about the scheduled eviction and to obtain information about the Property. JUMF #17. It is undisputed that Tunison communicated the following information to Juarez, which Juarez wrote down on the eviction questionnaire: (1) the occupant being evicted from the Property was ex-military; (2) there was a camera-video surveillance system at the Property; (3) the occupant had weapons, including M16-type guns; (4) there was an extra strength security door on the front of the residence; (5) the occupant was "possibly" violent; and (6) was a "weird weirdo." DUMF ## 9-10. Juarez wrote that information down on the eviction questionnaire. DUMF #12. It is undisputed that this was not an exhaustive list of the information Tunison provided Ms. Juarez. DUMF #10.⁶

Juarez made additional notes on the eviction schedule for April 12, 2012. DUMF #12. Next to the address line the Property, Juarez wrote the phrases "be very cautious" and "is going to have problems." Id. Following the completion of her call with Tunison, Juarez brought the information she recorded on the trip ticket to the attention of her supervisor, Watson. DUMF #14. Following Watson's directions, Juarez brought the information recorded on the eviction questionnaire from her call with Tunison to Martinez and showed it to him. DUMF ##15-16. Martinez told Juarez to highlight the information by circling it with red pen and to reprint the information on the opposite side of the trip ticket in black bold print. DUMF #18. Juarez complied. DUMF #19.

Martinez indicated that a Civil Division...