1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 KEVIN LOYNACHAN and JANICE No. 2:22-cv-00841 WBS JDP LOYNACHAN, individually and as 13 successors-in-interest to Decedent CHAD LOYNACHAN, 14 ORDER Plaintiffs, 15 v. 16 DARLENE SMILEY, in her 17 individual capacity as a law enforcement officer for SISKIYOU 18 COUNTY SHERIFF’S OFFICE; and DOES 1-50, inclusive, 19 Defendant. 20

21 ----oo0oo---- 22 Plaintiffs Kevin and Janice Loynachan bring claims 23 under the Fourth and Fourteenth Amendments, both individually and 24 as successors-in-interest of their deceased son Chad Loynachan, 25 against defendant Darlene Smiley. Defendant moves for summary 26 judgment on all claims. (Mot. (Docket No. 39).) 27 /// 28 1 I. Factual Background 2 Defendant Darlene Smiley is, and was at all relevant 3 times, a transport officer with the Siskiyou County Jail. Her 4 responsibilities included transporting inmates to and from places 5 such as hospitals and courts. (Smiley Deposition (Docket No. 39- 6 4) at 5.) 7 On February 5, 2021, Chad Loynachan was stopped for 8 speeding and then arrested for possession of a stolen firearm and 9 drugs for distribution. (Internal Investigation I1 (Docket No. 10 39-6) at 6-8.) Loynachan was taken to the Siskiyou County Jail 11 as a pretrial detainee the same day. (Id. at 10.) 12 Shortly before noon on February 19, Loynachan 13 approached a custodial officer and said that he swallowed a 14 razor. (Id. at 11.) Arrangements were promptly made to have 15 Loynachan medically evaluated at the Fairchild Medical Center. 16 (Id.) Prior to transport and according to protocol, Loynachan 17 was placed in belly chains, leg shackles, and handcuffs tethered 18 to the belly chains. (Smiley Deposition at 12-13.) The leg 19 shackles were around 14 inches in length; Loynachan’s handcuffed 20 hands could reach out approximately a foot from the belly chains. 21 (Id. at 13-14.) Loynachan was searched for weapons, also 22 according to protocol. None were found. (Id. at 15.) 23 Defendant, as the on-duty transport officer, 24 transported Loynachan in a Ford Expedition SUV to the Fairchild 25 Medical Center. (Internal Investigation II (Docket No. 40-1) at 26

27 1 The parties submitted different excerpted portions from the same Siskiyou County Sheriff Department’s Internal 28 Investigation of Loynachan’s death. 1 3.) Defendant was equipped with a duty belt, which contained her 2 duty gun secured to her right hip in a holster with a safety 3 release. (Smiley Deposition at 30, 43.) Defendant also had a 4 taser holstered to her left thigh. (Id. at 50.) No other 5 transport officers accompanied Loynachan. (Id.) Defendant drove 6 Loynachan to the hospital and parked the car outside the hospital 7 entrance. (Smiley Deposition at 10.) Hospital security camera 8 footage shows Loynachan and defendant walking into the hospital 9 around five minutes before noon. (Docket No. 39-7 at 2.) 10 Loynachan and defendant left the hospital about an hour 11 later. (Id. at 3.) They walked around the Expedition to the 12 driver’s side, with Loynachan in front. (Smiley Deposition at 13 19.) Loynachan stopped and stood by the rear tire on the 14 driver’s side while defendant entered a code on the driver’s door 15 to unlock it. (Id.) Defendant then opened the driver’s door, 16 unlocked the rest of the car, shut the driver’s door, and opened 17 the passenger door on the driver’s side. (Id.) 18 A struggle ensued. (Id. at 23-51.) Defendant alleges 19 that Loynachan, after initially entering the vehicle, lunged at 20 her and grabbed her duty belt, repeatedly headbutted and bit her 21 fingers and ear, and attempted to reach for her holstered taser. 22 (Id.) The struggle ended with defendant firing a single shot 23 into Loynachan’s right mid abdomen. (Autopsy Report (Docket No. 24 40-9) at 2.) Based on autopsy reports, the shot was fired less 25 than an inch away from Loynachan’s abdomen. (Olson Deposition 26 (Docket No. 39-5) at 11.) The bullet traveled right to left, 27 downwards, and front to back, eventually lodging in the left side 28 of Loynachan’s lower back bone. (Id. at 12-15.) Loynachan fell 1 and lay supine and unresponsive with his head near the 2 Expedition’s rear left tire and his feet near the front left 3 tire. (Docket No. 39-12 at 5.) Loynachan was taken to an 4 emergency operating room; however, he suffered “devastating” 5 damage from the bullet wound and was pronounced dead after over 6 two hours of surgery. (Nelson Decl. (Docket No. 39-8) ¶¶ 2-4.) 7 Loynachan’s body showed fresh abrasions on his scalp, 8 nose, and lips, and a laceration of his eyelid. (Olson 9 Deposition at 15-17.) There are no records indicating that 10 Loynachan entered the hospital for his earlier evaluation with 11 any of these injuries. (See generally Docket No. 39-11.) 12 An officer who arrived on the scene shortly after the 13 gunshot reported that defendant was “very obviously upset and was 14 crying,” and had blood on her hands and forehead. (Docket No. 15 40-8 at 5.) Defendant received a medical evaluation within an 16 hour of the shooting, which documented fresh human bite marks and 17 broken skin on her left hand fingers and her right ear, and a 18 “goose egg” lump on the back of her head. (See generally Docket 19 No. 39-9.) 20 II. Legal Standard 21 Summary judgment is proper “if the movant shows that 22 there is no genuine dispute as to any material fact and the 23 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 24 P. 56(a). A material fact is one that could affect the outcome 25 of the suit, and a genuine issue is one that could permit a 26 reasonable trier of fact to enter a verdict in the non-moving 27 party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 28 248 (1986). 1 The movant bears the initial burden of demonstrating 2 the absence of a genuine issue of material fact as to the basis 3 for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 4 (1986). The moving party can satisfy its burden by presenting 5 evidence that negates an essential element of the nonmoving 6 party's case. Celotex Corp, 477 U.S. at 322–23. Alternatively, 7 the movant can demonstrate that the non-moving party cannot 8 provide evidence to support an essential element upon which it 9 will bear the burden of proof at trial. Id. The burden then 10 shifts to the non-moving party to set forth specific facts to 11 show that there is a genuine issue for trial. See id. at 324. 12 Any inferences drawn from the underlying facts must, however, be 13 viewed in the light most favorable to the non-moving party. See 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 15 587 (1986). 16 III. Discussion 17 Plaintiffs bring three Section 1983 claims against 18 defendant: Fourth Amendment excessive force (Claim 1); Fourth 19 Amendment failure to provide reasonable post-arrest care (Claim 20 2); and Fourteenth Amendment familial loss (Claim 3). (See 21 generally First Am. Compl. (“FAC”) (Docket No. 33).) 22 A. Excessive Force (Claim 1) 23 Defendant asserts qualified immunity against 24 plaintiffs’ excessive force claim. Qualified immunity is a 25 question of law to be decided by the court. See Hunter v. 26 Bryant, 502 U.S. 224, 228 (2009) (“Immunity ordinarily should be 27 decided by the court long before trial.”). A defendant is 28 entitled to qualified immunity if a plaintiff (1) has not 1 “alleged” or “shown” facts that would make out a constitutional 2 violation, or (2) fails to show that an alleged constitutional 3 violation was not “‘clearly established’ at the time of 4 defendant’s alleged misconduct.” A.D. v. Cal. Highway Patrol, 5 712 F.3d 446, 453–54 (9th Cir. 2013) (citing Pearson v. Callahan, 6 555 U.S. 223, 232, 236 (2009)). On a motion for summary 7 judgment, the court first determines “whether the evidence viewed 8 in the light most favorable to the plaintiff is sufficient to 9 show a violation of a constitutional right.” Sandoval v. County 10 of San Diego, 985 F.3d 657, 671 (9th Cir. 2021) (cleaned up). 11 1. Constitutional Violation 12 “[A]pprehension by the use of deadly force is a seizure 13 subject to the reasonableness requirement of the Fourth 14 Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). The 15 Supreme Court in Graham v. Connor set forth a non-exhaustive list 16 of factors for evaluating an officer’s reasonability: (1) the 17 severity of the crime at issue, (2) whether the suspect posed an 18 immediate threat to the safety of the officers or others, and (3) 19 whether the suspect actively resisted arrest or attempted to 20 escape. See George v. Morris, 736 F.3d 829, 837 (9th Cir. 2013) 21 (citing Graham, 490 U.S. 386 (1989)). And in Tennessee v. 22 Garner, the Supreme Court analyzed the application of deadly 23 force by weighing (1) the immediacy of the threat, (2) whether 24 force was necessary to safeguard officers or the public, and (3) 25 whether officers administered a warning, assuming it was 26 practicable. See George, 736 F.3d 829, 837 (citing Garner, 471 27 U.S. at 11-12). 28 “In cases where the best (and usually only) witness who 1 could offer direct testimony for the plaintiff about what 2 happened before a shooting has died, our precedent permits the 3 decedent's version of events to be constructed circumstantially 4 from competent expert and physical evidence, as well as from 5 inconsistencies in the testimony of law enforcement.” George, 6 736 F.3d at 834 (9th Cir. 2013). 7 It is undisputed that some kind of violent altercation 8 ensued between Loynachan and defendant -- their respective wounds 9 beyond Loynachan’s gunshot wound attest to that. However, the 10 present record leaves some room, however slight, for a genuine 11 dispute as to whether Loynachan, in the moments before the fatal 12 shot, ceased his attack on defendant and was turning to flee. 13 Roger Clark, plaintiffs’ expert witness, opines that “it is 14 likely that Loynachan was turning away or turned away in some 15 manner of escape when Deputy Smiley shot him” based on the 16 trajectory of the bullet. (Clark Report2 (Docket No. 40-10) at 17 7-8.) Clark also states that the position of Loynachan’s body 18 right after the shot was “in a position more consistent with 19 Loynachan trying to escape . . . .” (Id. at 8.) 20 Clark’s report also leaves room for genuine dispute on 21

22 2 Defendant objects to the expert reports of Roger Clark (Docket No. 40-10) and Leonard J. Romero (Docket No. 40-6): 23 Clark’s, on hearsay grounds because Clark “is not a medical doctor and [] cannot and has not, analyzed the path of the bullet 24 he uses to claim the decedent was ‘trying to flee’ at the moment he was wounded;” and Romero’s, because it was not made under 25 penalty of perjury. (Reply at 3.) These are no grounds to ignore the reports. “At the summary judgment stage, we do not 26 focus on the admissibility of the evidence’s form. We instead 27 focus on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see Fed. R. Civ. P. 28 56(c)(2). 1 whether lethal force was truly necessary to safeguard defendant’s 2 safety. Defendant testified that she, at some point, was able to 3 create some space between herself and Loynachan during the 4 altercation. (Smiley Deposition at 31 (“I am trying to push away 5 from him, and at one point I do know -- remember either pushing 6 or hitting the side of his head. I get away enough and am now to 7 my right side, and he is biting my ear.” ).) From this Clark 8 concludes that defendant could have, and should have, “simply 9 stepped away, created distance and used a less lethal force 10 option.” (Clark Report (Docket No. 40-10) at 7.) There are also 11 genuine disputes of material fact on whether lethal force was 12 proportionate to the danger that Loynachan posed, or to the 13 severity of defendant’s injuries, at least because no testimony 14 from Loynachan is available to counter defendant’s testimony on 15 the precise nature and severity of Loynachan’s assault or whether 16 he was in fact attempting to reach defendant’s taser to disarm 17 her immediately before the shot. 18 “Credibility determinations, the weighing of the 19 evidence, and the drawing of legitimate inferences from the facts 20 are jury functions, not those of a judge, whether he is ruling on 21 a motion for summary judgment or for a directed verdict. The 22 evidence of the non-movant is to be believed, and all justifiable 23 inferences are to be drawn in his favor.” Anderson v. Liberty 24 Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S. H. 25 Kress & Co., 398 U.S. 144, 158-59 (1970)). Accordingly, in light 26 of the issues raised by Clark’s report and the absence of 27 countervailing testimony from Loynachan, for purposes of ruling 28 on this motion the court is compelled to accept the inferences 1 opined in Clark’s report and conclude therefrom that defendant 2 violated Loynachan’s constitutional right to be free from 3 unreasonable seizure by fatally shooting him. 4 2. Clearly Established Right 5 Still, qualified immunity applies if the violated 6 constitutional right was not clearly established. “A right is 7 clearly established when it is ‘sufficiently clear that every 8 reasonable official would have understood that what he is doing 9 violates that right.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 10 5-6 (2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). 11 When determining whether a right is clearly established, the 12 court may not “define clearly established law at a high level of 13 generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) 14 (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 742 (2011)). Rather, 15 “[t]his inquiry ‘must be undertaken in light of the specific 16 context of the case, not as a broad general proposition.’” 17 Rivas-Villegas, 595 U.S. at 5-6 (citation omitted); see White v. 18 Pauly, 580 U.S. 73, 79 (2017) (“[T]he clearly established law at 19 issue must be particularized to the facts of the case.”). 20 Tailoring the court’s inquiry closely to the specific 21 contours of the present record, the court defines the relevant 22 question thusly: Would a reasonable officer understand that it 23 was unlawful to use lethal force against a detainee when the 24 detainee is no longer resisting, but is instead in the process of 25 fleeing from the officer? 26 The balance of precedent suggests that the answer is 27 yes. See, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989) 28 (“[T]he use of deadly force to apprehend a fleeing suspect who 1 did not appear to be armed or otherwise dangerous violated the 2 suspect’s constitutional rights, notwithstanding the existence of 3 probable cause to arrest.”) (citing Tennessee v. Garner, 471 U.S. 4 1, 5 (1985)); Foster v. City of Indio, 908 F.3d 1204, 1211 (9th 5 Cir. 2018) (“It is clearly established law that shooting a 6 fleeing suspect in the back violates the suspect's Fourth 7 Amendment rights.”); Harris v. Roderick, 126 F.3d 1189, 1203 (9th 8 Cir. 1997) (“Graham’s totality of the circumstances test does not 9 permit the use of deadly force to kill a suspect who is running 10 back to a cabin where he is temporarily staying . . . .”); Tan 11 Lam v. City of Los Banos, 976 F.3d 986, 1002–03 (9th Cir. 2020) 12 (“The law was also clearly established at the time of the 13 incident that firing a second shot at a person who had previously 14 been aggressive, but posed no threat to the officer at the time 15 of the second shot, would violate the victim's rights.”); Curnow 16 By and Through Curnow v. Ridgecrest Police, 952 F.2d 321, 324-25 17 (9th Cir. 1991) (shooting suspect in the back who was armed with 18 a rifle but not facing the officer or pointing the rifle at the 19 officer at the time of the shot, was unreasonable and a violation 20 of a clearly established right). 21 Defendant cites no countervailing cases, either in 22 their motion or in reply, that suggest a different definition of 23 the clearly defined right, or a different conclusion under the 24 court’s definition. 25 Permitting the inference, without so finding, that 26 Loynachan ceased his assault and was turning to flee in the 27 moments before defendant shot him, the case law establishes that 28 defendant had “fair warning” that using deadly force would eee REI INI OEE OE NID IEE OER III IRE EEE OIE II ES eee

1 violate Loynachan’s Fourth Amendment right. See Hope v. Pelzer, 2 536 U.S. 730, 741 (2002) 3 Accordingly, because defendant’s entitlement to 4 qualified immunity ultimately turns on disputed issues of fact, 5 summary judgment is not presently appropriate for this claim. 6 See Liston v. Cty. of Riverside, 120 F.3d 965, 975 (9th Cir. 7 1997) (“While we have held that qualified immunity is to be 8 determined at the earliest possible point in the litigation, we 9 have also held that summary judgment in favor of moving 10 defendants is inappropriate where a genuine issue of material 11 fact prevents a determination of qualified immunity until after 12 trial on the merits.”). 13 B, Failure to Provide Reasonable Post-Arrest Care and 14 Familial Loss Claims (Claims 2-3) 15 In their opposition, plaintiffs state that they “do not 16 oppose dismissal of their failure to provide medical care claim 17 or 14th Amendment familial loss claim.” (Opp’n at 17 n.2.) 18 Plaintiffs also did not assert any arguments opposing summary 19 judgment on those claims. Accordingly, the court will grant 20 defendant’s summary judgment motion as to Claims 2 and 3. 21 IT IS THEREFORE ORDERED that defendant’s motion for 22 summary judgment (Docket No. 39) be, and the same hereby is, 23 DENIED as to Claim 1, and GRANTED as to Claims 2 and 3. 24 | Dated: February 6, 2024 dtd □ 4 Ld. bE 25 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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