Full title: WHITNEY DUENEZ, individually and as successor-in-interest for Decedent…
Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Date published: Feb 22, 2012
Facts
On June 8, 2011, Ernesto Duenez, Jr. was driven by acquaintances, Rudy Camarena and Rudy Camarena’s wife, to a Manteca home, where he retrieved some of his property. ECF No. 1, ¶ 12. Ernesto Duenez, Jr. dropped his knife on the ground as he retrieved his belongings. Id. After he got back into Rudy Camarena’s truck, the owner of the Manteca home brought the knife out to the truck and offered to return the knife to Ernesto Duenez, Jr. Id. Either Rudy Camarena or Ernesto Duenez, Jr. accepted the knife, and one of them tossed the knife into the bed of the pickup truck, which was not immediately accessible from the cab of the pickup truck. Id. The homeowner then called the police in reference to Ernesto Duenez, Jr. and told them that Ernesto Duenez, Jr. was armed with a knife. Id. This report was relayed to the police by dispatch. Id.
That afternoon or late evening, Defendant Officer John Moody was seen driving around the neighborhood of Rudy Camarena’s residence. Id. at ¶ 13. Local press accounts have since portrayed Rudy Camarena’s residence as a suspected drug house, but an unlawful search of the Camarena residence conducted by Manteca police officers found no contraband or evidence that the Camarena residence was involved in any illegal activity. Id. No one who lived at the Camarena residence or who was inside the residence at the time of the incident was on probation or parole. Id.
Shortly before 6:45 P.M., as Mr. Camarena and his wife returned to their home at 242 Flores Street in Manteca with Ernesto Duenez seated in the small backseat of their two-door pickup, Rudy Camarena saw a Manteca Police Department patrol vehicle pass his truck, but the patrol vehicle did not activate its siren or indicate for Rudy Camarena to pull over. Id. at 13. At this time, Plaintiff Whitney Duenez, Ernesto Duenez’s wife, was inside the Camarena residence, along with other members of Rudy Camarena’s family, including Mr. Camarena’s elderly mother and the Camarena children.
After Mr. Camarena parked his pick-up truck in its usual parking spot, in the yard of the Camarena residence at 242 Flores Street, a Manteca Police Department patrol vehicle driven by Defendant Officer Moody stopped behind Mr. Camarena’s truck and activated its siren light. Id. at ¶ 14. Defendant Officer Moody, who later claimed that a warrant had been issued for Ernesto Duenez, Jr.’s arrest, was waiting in his vehicle, staking out Mr. Camarena’s residence. Id. With the truck’s ignition turned off, Ernesto Duenez, Jr., who was in the backseat, began to exit the truck, while Mr. Camarena and his wife remained in the truck. Id. Ernesto Duenez, Jr. pushed Mr. Camarena’s wife forward as he began to exit the truck and stepped his left foot out of the truck, while his right foot was tangled in the seat belt. Id. Ernesto Duenez, Jr.’s hands were up and he held a dark colored object in one hand that did not appear to be a knife and was likely the glass marijuana smoking-pipe later found at the scene. Id. Ernesto Duenez, Jr.’s hands were visible and he took no action consistent with either wielding or simulating any weapon. Id.
Defendant Officer Moody immediately ran around the driver’s side of the front of his patrol vehicle with his gun drawn, while yelling at Ernesto Duenez, Jr., “Hands up! Hands up Ernie! Don’t you move, Ernie, don’t you move or I’ll shoot you!” Id. at ¶ 15. Ernesto Duenez, Jr. had opened the door and had begun to step out of the truck. Id. Defendant Officer Moody had withdrawn his gun from his holster, even though Ernesto Duenez, Jr. presented no threat. Id. Defendant Officer Moody put his gun back in his holster as he yelled again, “Hands up, now!” Id. Ernesto Duenez, Jr. was in the process of getting out of the truck, with his hands supporting his weight, one hand on the cab of the truck and one hand on the open passenger door of the truck; the dark object was in the hand on the cab of the truck. Id.
Defendant Officer Moody, standing within 15 feet of Ernesto Duenez, Jr. with his feet spread, knees bent, and hands outstretched, yelled, “Hands up now!” Id. at ¶ 16. Ernesto Duenez, Jr.’s hands were supporting his weight on the cab and open door of the truck. Id.
Ernesto Duenez, Jr. dropped to one foot, as was necessary to comply with Defendant Officer Moody’s commands, but his other foot was tangled in the passenger side seatbelt of the pickup truck and remained suspended in the air. Id. at ¶ 17. Ernesto Duenez, Jr. faced the passenger side of the pickup truck, making no furtive or threatening gesture. Id. Defendant Officer Moody again ordered Ernesto Duenez, Jr., “Drop the knife now!” Id. Although no knife or weapon was visible, Defendant Officer Moody began to shoot Ernesto Duenez, Jr., firing six gunshots in quick succession by the time Ernesto Duenez, Jr. fell to the ground on his back. Id. Defendant Officer Moody fired six more gunshots at Ernesto Duenez, Jr. after he fell to the ground, even though no weapon was visible. Id. After a pause, Defendant Officer Moody shot Ernesto Duenez, Jr. a 13th time, directly into Ernesto Duenez, Jr.’s torso as he lay on the ground. Id.
Plaintiff Whitney Duenez heard gunshots and someone yell her husband’s name, “Ernie.” Id. at ¶ 18. She ran outside the Camarena residence and saw her husband with one foot still stuck inside the seatbelt of the truck. Id. Ernesto Duenez, Jr. was bleeding but alive. Id.
Plaintiff Whitney Duenez ran toward her husband, whose body lay on the ground, except for his right foot, which remained entangled in the passenger side seatbelt. Id. at ¶ 19. She saw her husband gasping for air. Id. Unidentified Manteca Police Department Officers ordered Whitney Duenez to put her hands up, at gunpoint; the officers spoke to her in a rude and derogatory manner; and they eventually handcuffed her. Id. Neither Officer Moody nor anyone else attempted to provide Ernesto Duenez, Jr. medical care. Id. Defendants further prevented Whitney Duenez, at gunpoint, from giving her husband medical care as he was dying. Id.
For almost two minutes, Officer Moody held Ernesto Duenez, Jr. at gunpoint, even after other unknown Defendant Manteca Police Officers arrived at the scene. Id. at ¶ 20. Whitney Duenez’s pleas for medical attention for her husband were unavailing. Id.
After unsuccessfully attempting to pull Ernesto Duenez, Jr. away from the truck, Defendant Officer Moody used a utility knife to cut the seatbelt in which Ernesto Duenez, Jr.’s leg was stuck. Id. at ¶ 21. Officer Moody then pulled Ernesto Duenez, Jr. from the truck, flipped him over onto his stomach, and handcuffed his hands behind his back. Id.
Nearly 3 and a half minutes after the shooting, Officer Moody searched Ernesto Duenez, Jr. by going into his pockets, pulling his pants down, pulling his boxers back and looking at Ernesto Duenez, Jr.’s buttocks, and patting various locations on Ernesto Duenez, Jr.’s body. Id. at ¶ 22. Officer Moody then searched the yard around Ernesto Duenez, Jr. Id. Officer Moody told another officer at the scene that he had fired “somewhere in the neighborhood of maybe 6” gunshots at Ernesto Duenez, Jr., and that he was looking for the knife that Ernesto Duenez, Jr. possessed when he exited the truck. Id. When that officer asked Officer Moody how Ernesto Duenez, Jr. was doing, Officer Moody responded by asking the officer if he had called the medics yet. Id. Officer Moody then rolled Ernesto Duenez, Jr. onto his back and continued searching him. Id. At this point, Ernesto Duenez, Jr. was still alive and moaning. Id.
More than 5 minutes after he had finished shooting Ernesto Duenez, Jr., Officer Moody directed an unknown officer to get a trauma kit from his patrol car. Id. at ¶ 23. The trauma kit arrived around the same time as the medics, who then provided medical attention to Ernesto Duenez, Jr. for the first time. Id.
It took Defendant Officer Moody 6.6 seconds to exit his patrol vehicle and fire the first shot at Ernesto Duenez, Jr. Id. at ¶ 24. Officer Moody then fired the thirteen rounds over a period of 4.6 seconds. Id. No weapon other than the knife in the bed of the pickup truck was ever found at the scene of the shooting. Id. at ¶ 26. Ernesto Duenez, Jr. never made a motion to reach for that knife, and no object from his person traveled into the bed of the pickup truck during the subject-incident. Id.
Several unidentified officers from the Manteca Police Department then detained Whitney Duenez, Rudy Camarena, and Mr. Camarena’s wife at gunpoint after the shooting. Id. at ¶ 28. Without a search warrant, several unidentified Manteca Police Department officers (named as Defendants “Does”) entered the Camarena residence, searched it, and detained several people including Mr. Camarena’s son and Mr. Camarena’s elderly mother, who is in poor health. Id.
All of the people arrested and/or detained at the scene, including Whitney Duenez, Rudy Camarena, Mr. Camarena’s wife, and Mr. Camarena’s son, were transported to the Manteca Police Department, where they were detained and interrogated before being released hours later, without any charges. Id. at ¶ 29. Each of these people were held against their will until their release. Id.
Following the shooting, Defendant Chief of Police David Bricker transported Officer Moody to the Manteca Police Station. Id. at ¶ 30. In spite of the video evidence of the shooting, David Bricker told local press representatives that when all the facts were out, the officer who had shot Ernesto Duenez, Jr. would be clearly justified in the shooting, as his life had been threatened. Id. David Bricker also said that both he and the Manteca Police Department supported Officer Moody’s shooting of Ernesto Duenez, Jr. Id. Plaintiffs allege that Defendant Bricker had both spoken to Officer Moody about the shooting and had seen video footage of the incident at the time he had made these statements. Id. Plaintiffs further allege that Defendant Bricker ratified Officer Moody’s shooting of Ernesto Duenez, Jr. as being within the policy of Defendant City of Manteca. Id. Ernesto Duenez, Jr. was on parole and was set to discharge from parole one month after he died. Id. at ¶ 31. Mr. Duenez believed that he may have tested positive on a drug test and possibly had a warrant against him for violating parole due to the drug test, which would have caused him to serve minimal time in custody. Id.
Plaintiffs bring causes of action under the following theories: (1) “Wrongful Death 42 U.S.C. Section 1983,” because Defendants Moody and Does “acted under color of law by killing decedent without lawful justification and subjecting decedent to excessive force thereby depriving Plaintiff [Whitney Duenez and Minor Plaintiff D.D.] and the decedent of . . . [t]he right to be free from unreasonable searches and seizures” and “[t]he right to medical care . . . in violation of substantive Due Process guarantees of the Fourteenth Amendment”; (2) Violations of “All Plaintiffs'” “civil rights to familial relationship–42 U.S.C. section 1983“; (3) “Monell—42 U.S.C. section 1983,” as against “Defendant[s] City, Bricker, and Does 51-100”; (4) “Survival action: Violation of decedent’s civil rights,” brought pursuant to 42 U.S.C. Section 1983; (5) negligent infliction of emotional distress, brought by Plaintiff Whitney Duenez against Defendants Moody and Does 1-10; (6) “Violation of Civil Code Section 52.1,” brought by Whitney Duenez, as successor-in-interest to Decedent Ernesto Duenez, Jr., against Defendant Moody, for which Plaintiffs seek injunctive relief; (7) “Negligence-Wrongful Death”; and (8) intentional infliction of emotional distress. Id. at 11-18.
As to damages, Plaintiffs seek (1) the reasonable value of funeral and burial expenses; (2) wrongful death damages; (3) damages incurred by Mr. Duenez “before he died as the result of being assaulted and battered, for deprivation without due process of his right to life, and [for] any penalties or punitive damages to which he would have been entitled to recover, had he lived”; (4) compensation for their loss of Mr. Duenez’s financial support; (5) an award of punitive damages; and (6) attorneys’ fees. Id. at ¶¶ 36-41. Plaintiffs also, generally, seek injunctive relief. See, e.g., id. at 19.
Issue
Decision
Defendants argue that Plaintiffs’ “stray . . . assertion of entitlement to recovery for ‘decedent’s loss of life’ is improper” and should be stricken. Defs’ Mot., ECF No. 27, at 15. Plaintiffs’ claimed damages for “deprivation without due process of [Ernesto Duenez, Jr.’s] right to life” is, indeed, confusing.
In their opposition, the Plaintiffs clarify that these claimed damages are based on their state claims for wrongful death, pursuant to California Code of Civil Procedure § 377.34, and Plaintiffs’ § 1983 excessive force claim. Because the inclusion of the phrase “right to life” in this context is immaterial, in that the phrase bears no essential or important relationship to the Plaintiffs’ asserted claims for relief, see Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), the court grants Defendants’ motion to strike in this regard.
For the foregoing reasons, the court DENIES Defendants’ motion to dismiss and GRANTS the motion to strike as specified above.
IT IS SO ORDERED.