Garlick v. County of Kern (167 F. Supp. 3d 1117, 2016)

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT.

Lawrence J. O’Neill, UNITED STATES DISTRICT JUDGE

This case arises from the in-custody death of David S. Silva (“Silva” or “the Decedent”). Plaintiffs bring the instant civil rights action against the arresting officers, alleging excessive force under 42 U.S.C. § 1983 and state law causes of action for civil rights violations, battery, negligence, and wrongful death. Before the Court is the California Highway Patrol (“CHP”) Defendants Michael Phillips and Michael Bright’s Motion for Summary Judgment or, Alternatively, Partial Summary Judgment (Doc. 122); the Kern County Shemffs Office (“KCSO”) Defendants Sergeant Douglas Sword, Deputy Jeffrey Kelly, and Deputy Luis Almanza’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication (Doc. 124); and the Defendants County of Kern, KCSO, and Deputies David Stephens, Ryan Greer, Tanner Miller, and Ryan Brock’s Motion for Summary Judgment or, Alternatively, Summary Adjudication of issues (Doc. 125), each respectively filed December 1, 2015. Plaintiffs Tara Garlick, Merri Silva, Chris Silva, M.L.S., C.J.S., C.R.S., E.Z.S., minors by and through their guardian ad litem, Judy Silva, individually and as the successors in interest of Silva, the Decedent, as well as J.S., individually and as successor in interest to Silva, the Decedent, by and through her guardian ad litem, Adriane Dominguez (collectively, “Plaintiffs”) filed their Oppositions on January 5, 2016 (Docs. 129, 130, 131), to which Defendants filed their Replies on January 12, 2016 (Docs. 139, 141, 142) (Doc. 81). The Court deems the matter appropriate for resolution without oral argument. See E.D. Cal. Civ. L.R. 230(g). Having carefully considered the record in this case, the parties’ briefing, and the relevant law, the Court grants in part and denies in part Defendants’ motions.

BACKGROUND

I. FACTUAL ALLEGATIONS

Objections

The parties interpose various evidentia-ry objections. See Docs. 131-2, 142-4. Defendants Kelly, Sword, and Almanza raise objections to Plaintiffs’ experts’ declarations (DeFoe Decl., Doc. 131-3; O’Halloran Decl., Doc. 131-4); Plaintiffs’ counsel’s declaration (Gehlawat Decl., Doc. 131-5), an exhibit purporting to be a birthday card (Doc. 131-5, Ex. 27), and an exhibit (Doc. 131-5, Ex. 28) purporting to be a picture of Decedent, Plaintiff Garliek, and their children.

Defendants object to Plaintiffs’ response to an interrogatory (see Doc. 131-5, Ex. 26) on the basis of lack of foundation and authentication. Defendants argue that the interrogatory response omits question number 15 “and does not have verification from Ms. Garliek to verify the response.” Doc. 142-4 at 2. This objection is OVERRULED because the Court “is confident plaintiff would be able to authenticate them at trial, which is all that Rule 56(e) demands.” Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1124 (E.D.Cal.2006) (emphasis in original) (“Rule 56(e) requires only that evidence “would be admissible”, not that it presently be admissible. Such an exception to the authentication requirement is particularly warranted in cases such as this where the objecting party does not contest the authenticity of the evidence submitted but nevertheless makes an evidentiary objection based on purely procedural grounds.”). Defendants also object to exhibits to opposing counsel’s declaration (Doc. 131-5, Exs. 27, 28) and Plaintiffs object to Almanza’s declaration (Doc. 124-6). The Court need not address these objections, however, because in ruling on the instant motions it does not consider the materials to which the parties object. See Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir.2010).

Finally, the parties make nearly blanket objections to the proffered evidence in support of the motions for summary judgment, the oppositions’ evidence, and the various separate statements on the basis of relevance, hearsay, lack of foundation, lack of personal knowledge, prejudice, improper character evidence, and assuming facts not in evidence. The Court reminds the parties that, on summary judgment, evidence need not be in a form that is admissible at trial. See Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D.Cal.2006) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (1986)). “[M]any of these objections are unnecessary when made to evidence presented in support of a motion for summary judgement as the court is not in danger of prejudice and the summary judgment standard dictates that summary judgment can be granted “only when there is no genuine dispute of material fact.” Arias v. McHugh, No. CIV. 2:09-690 WBS GG, 2010 WL 2511175, at *6 (E.D.Cal. June 17, 2010) (citing Burch, 433 F.Supp.3d at 1119-20).” These objections are OVERRULED. The parties may address evidentiary issues in pre-trial motions.

A. The Parties

Plaintiff Merri Silva (“Mrs. Silva”) is the mother of the Decedent, Silva, who died on May 7, 2013. Mrs. Silva sues in her individual capacity and as the successor in interest of her son, the Decedent, (pursuant to Section 377.11 of the California Code of Civil Procedure) alleging a substantive due process violation pursuant to the Fourteenth Amendment. Salvador Silva (“S. Silva”), the decedent Silva’s father, passed away while this case was pending. Therefore, his son, Chris Silva (“C. Silva”), as successor in interest, substituted into the case in a representative capacity, pursuant to Rule 25 and California Code of Civil Procedure 377.11 and 377.32 (see Docs. 106 & 113), for his father’s only claim for loss of familial relationship under the Fourteenth Amendment. See Docs. 106, 111 & 113. By the complaint he seeks general, special, compensatory, and punitive damages. See SAC, Doc. 78.

The Decedent’s surviving children, Plaintiffs M.L.S., C.J.S., C.R.S., E.Z.S., minors by and through their guardian ad litem, Judy Silva, bring this action individually and as successors in interest to Silva, the Decedent. See id. Minor Plaintiff J.S., by and through her guardian ad litem, Adriane Dominguez, brings this action in her individual capacity and as successor in interest to Silva. See id.

By their complaint, Plaintiffs seek general, special, compensatory, and punitive damages against all Defendants, including municipal Defendant County of Kern (“the County”), as well as Jeffrey Kelly (“Kelly”), Douglas Sword (“Sword”), Luis Al-manza (“Almanza”), Ryan Brock (“Brock”), Ryan David Stephens (“Stephens”), Tanner Miller (“Miller”), Greer (“Greer”), Michael Phillips (“Phillips”), and Michael Bright (“Bright”), each in their individual capacities. See SAC, Doc. 78. At all relevant times, Sword was a Sergeant for the KCSO; Kelly, Almanza, Brock, Greer, Miller, and Stephens were KCSO Deputies; and Phillips and Bright were CHP Officers.

The parties do not acknowledge that Defendants Does 1-50 remain unnamed, although the parties have had ample time in which to engage in discovery. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980) (finding that “the plaintiff should be given an opportunity through discovery to identify the unknown defendants.”). At this late stage, post-discovery, Plaintiffs have neither named additional defendants — presumably additional officers— nor have they offered arguments or evidence indicating liability against such officers based on the facts alleged in the SAC. As there is no provision in the Federal Rules of Civil Procedure permitting the use of fictitious defendants, the Court, sua sponte, GRANTS summary judgment in their favor and DISMISSES the remaining Doe Defendants in advance of the imminent trial. See Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir.1970); see also Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 803 (9th Cir.1995) (affirming district court’s grant of summary judgment in favor of non-appearing defendant).

B. Undisputed Facts Leading to Events between Law Enforcement and Silva

This suit is an excessive force claim stemming from events near midnight on May 7, 2013, in Bakersfield, California, where KCSO Deputy Kelly responded to a call to check on an intoxicated man. JSUMF ¶¶ 2, 4, 5. Kelly learned from his in-vehicle computer that the reporting party was a security guard with the nearby Kern Medical Center (“KMC” or “the Hospital”). JSUMF ¶ 3. Along with Kelly in the car was his K-9 partner, Luke. JSUMF ¶¶ 6, 7.

Kelly, dressed in a KCSO uniform and driving a KCSO vehicle, parked his patrol vehicle and turned its spotlight on Silva before walking over to check on him. JSUMF ¶ 2, 4, 5, 9; Kelly Dep. 38:14-17, 40:13-41:5. When Kelly first saw Silva, Silva appeared to be lying on the ground by the stop sign on the southeast corner of Flower and Palm, across the street from the Hospital. JSUMF ¶ 8. Silva was breathing but not moving, and did not appear to have any injuries on him. Kelly Dep. 39:24-40:1. Kelly did not have a warrant for the intoxicated person’s arrest and did not initially have any information that this person needed to be arrested. Kelly Dep. 32:9-12; 32:19-22.

C. Disputed Facts in Chronological Phases

Phase One: Initial Interaction between Deputy Kelly and Silva

Undisputed

Kelly identified himself as a deputy to Silva and asked him if he was okay, but Silva did not respond. Kelly Dep. 41:12-22. After approximately five minutes of trying to get a response from Silva and getting no coherent response, Kelly performed a sternum rub to try to rouse Silva. Id. at 42:1-18, 43:13-44:21, 45:9-22. Kelly knew that a sternum rub would be uncomfortable. Id. at 46:15-20. At some point after the sternum rub, Silva started trying to get to his hands and knees. Id. at 43:23-44:17, 51:13-24.

Defendants’ Account

Kelly performed a sternum rub in order to wake Silva to see if Kelly could provide assistance. Id. at 42:1-18, 43:13-44:21, 45:9-22. As Silva attempted to get to his hands and knees, he fell on his face between two to four times. Id. at 51:25-52:7, 53:14-54:18, 54:25-55:7, 57:2-6. So that Silva would not hurt himself, Kelly attempted to move Silva into a seated position. Id. at 56:2-57:1, 57:7-25. Based on his observations, Kelly believed Silva was drunk in public in violation of Penal Code § 647(f). Id. at 41:21-22, 42:1-18, 43:13-18, 45:9-22, 53:14-54:18, 56:17-57:25.

Plaintiffs’ Account

Plaintiffs do not dispute that when Kelly first saw Silva, Silva appeared to be passed out lying on the ground. Id. at 39:10-25; 166:2-5. The parties diverge on almost all other key facts. According to percipient witnesses, during the incident, Silva was sitting or lying on the ground but did not fall on his face or suffer self-inflicted injuries, and Kelly did not attempt to aid Silva into a seated position. See Land Dep. 40:5-7; Vasquez Dep. 192:21-25. After the sternum rub, Silva started to wake up and attempt to move to his hands and knees. Kelly Dep. 51:9-19. Defendants claim Silva was uncooperative, but Kelly never considered that Silva had become agitated as a result of the sternum rub. Kelly Dep. 50:8-11, 60:1-4. Kelly admits that Silva had not used or threatened force, and Kelly had not been injured. Kelly Dep. 59:8-10. Specifically, Kelly admits that Silva did not punch or kick him. Kelly Dep. 62:21-24. Kelly did not believe that Silva had a weapon or that he had injured someone else. Kelly Dep. 64:5-11.

Kelly testified that, after the sternum rub, it would have been inappropriate to hit Silva with a baton when Silva began to awaken and attempted to get to his hands ' and knees, because Kelly did not perceive Silva to be a threat and Silva was not resisting. Kelly Dep. 51:9-19, 53:5-13. Based on his observations, Kelly at first intended to detain Silva, but not to arrest him. Kelly Dep. 57:15-20. Kelly admits that as Silva sat on the pavement after Kelly had performed the sternum rub, Silva had not committed a crime other than public intoxication. Kelly Dep. 57:7-25.

Phase Two: Kelly Uses a K-9 and Baton Strikes against Silva

Undisputed

Kelly was unsuccessful at handcuffing Silva. PO-KSA-SS ¶ 18. Kelly put out over the radio that he was involved in a “148,”. a misdemeanor violation of California Civil Code Section 148(a), meaning an officer faced an individual subject to arrest for obstructing or resisting an officer, with a subject later determined to be David Silva. Kelly Dep. 67:21-68:6, 77:15-18, 78:12-24; Miller Dep. 28:11-29:3; Almanza Dep. 27:15-28:23; Sword Dep. 29:12-30:3. At the time of the incident, Kelly was about 6 foot 2 inches tall and weighed approximately 150 to 170 pounds. JSUMF ¶ 12; Sword Dep. 57:13-16. Silva weighed 261 pounds and was 5 foot 11 inches tall. JSUMF ¶ 11. Kelly used a remote control device to open his car door and release his K-9 partner. Kelly Dep. 70:21-71:19.

Defendants’ Account

As Kelly touched Silva to assist him to a seated position, Silva tensed up, became

agitated, attempted to pull away from Kelly, and attempted to stand. Kelly Dep. 58:1-19, 59:11-25, 60:5-9, 61:15-25, 65:12-17; Medina Dep. 31:5-17, 55:14-56:16, 67:14-69:6. Based on Kelly’s training and experience, he believed Silva was under the influence of methamphetamine or PCP because of Silva’s increasing agitation and aggressiveness in combination with the tensing of his muscles. He also believed that Silva was under the influence of alcohol. Kelly Dep. pp.60:18-61:25, 106:5-107:14. Kelly gave commands to relax, stop resisting, and stop fighting. Kelly Dep. 67:5-20, 130:12-16. Kelly attempted to handcuff Silva using a wrist lock control hold, but Silva was able to pull away each time. Kelly Dep. 62:1-20, 63:10-64:2, 64:12-19, 64:24-65:7, 66:10-67:4. Kelly attempted a couple of times to put Silva into handcuffs using a rear wrist lock control hold, but Silva was able to “overpower him” and pull away his arms every time. Kelly Dep. 62:1-20, 63:10-64-2, 64:12-19, 64:24-65:7, 66:10-67:4; Medina Dep. 31:5-17, 55:14-56:16, 67:14-69:6. Silva was overpowering Kelly, and Kelly warned that he would release his K-9 if Silva did not quit resisting. Kelly Dep. 68:23-69:17, 130:12-16. Silva continued to resist, and Kelly released his K-9, Luke. Kelly Dep. 69:18-71:19. JSUMF ¶ 13; and Kelly Dep. 69:18-71:19. Once released, the dog bit Silva’s legs while Kelly continued to attempt to gain control of Silva’s arms. Kelly Dep. 71:20-72:18, 76:19-77:1. Silva became more agitated, was screaming, and started choking the dog. Kelly Dep. pp.73:15-19, 75:6-12, 75:25-76:3, 76:9-18, 77:2-14; Sword Dep. 31:9-15, 35:8-21, 37:23-38:13; O’Connor Dep. 38:21-24, 39:15-20, 56:2-24, 107:3-19. Kelly was afraid because the K-9 was not effective in gaining control of Silva, who was bigger and stronger than Kelly. Kelly Dep. 70:12-20, 77:6-14, 79:12-24, 80:14-81:8. ’

Kelly swung his baton at Silva “about two times.” Kelly Dep. 81:25-83:2, 84:8-14, 85:17-87:4, 89:15-21. First, Kelly ordered Silva to stop choking his dog and to stop resisting before striking Silva with a baton once in the left upper leg or thigh area. Kelly Dep. 81:25-83:2, 84:8-10, 85:17-19, 89:15-18, 130:12-16; Sword Dep. 36:20-37:6, 38:23-39:2, 39:25-40:5. Kelly also struck Silva with his baton in the right hip or torso area, after Kelly released the dog and Silva was nearly standing fully upright. Kelly Dep. 84:11-14, 85:20-87:4, 89:19-21. Silva was still resisting and screaming. Kelly Dep. 91:15-92:14. From the time Kelly released the police dog to the time Sword arrived, Kelly was using force to try to get Silva’s hands behind his back' and keep him on the ground. Kelly Dep. 90:5-17. Once Kelly returned the dog to the patrol car, he had no further physical contact with Silva. Kelly Dep. 119:17-120:10; Miller Dep. 38:10-16; Sword Dep. 55:24-56:2, 69:8-11.

Plaintiffs’ Account

After Silva began to awaken in response to the sternum rub, Kelly applied body weight to Silva. Kelly Dep. 65:12-17. Silva had not punched (Kelly Dep. 58:16-19), kicked (58:20-21), resorted to or verbally threatened force. Kelly. Id. 58:22-59:7.

Kelly released the dog in response to Silva’s noncompliance. Kelly Dep. 70:12-20. Kelly intended for the K-9 to bite Silva. Kelly Dep. 74:16-24. As he released the dog, Kelly continued to apply body weight pressure on Silva. Kelly Dep. 75:21-24. The K-9 bit Silva in the face. Kelly Dep. 71:20-22, Sword Dep. 32:17-23; 36:3-15; 27:24-28:5; 47:22-24. Silva struggled with the dog to try to get the dog to stop biting him. Kelly Dep. 75:6-12. Silva reacted to the dog bites by screaming and becoming more agitated. Kelly Dep. 73:15-19, 108:1-19. However, at no point during this Phase did Silva punch, kick, or verbally threaten Kelly. Kelly Dep. 58:16-19, 58:20-21, 58:22-59:7, 62:21-24.

While the dog was biting Silva, Kelly used his baton to strike Silva. Kelly Dep. 82:16-23. Silva had not punched or kicked Kelly; Silva’s only physical response had been to elbow Kelly in response to the pain stimulus of the sternum rub to try to get Kelly off of him. Kelly Dep. 79:25-80:13; Sword Dep. 37:7-22. Kelly struck Silva with a baton before Sword arrived. Kelly Dep. 89:15-25. Striking Silva with the baton made Silva more agitated. Kelly Dep. 108:21-25; 109:2-11. As Silva tried to get up, Kelly used his body weight to prevent it. Kelly Dep. 65:18-24. Plaintiffs dispute the context in which Kelly commanded Silva to stop resisting and stop fighting, as it contradicts that when Silva was attempting to get up, Kelly was using force to push him down and trying to get his hand behind his back to handcuff him. Kelly Dep. 67:14-20.

Kelly struck Silva repeatedly with his baton. Kelly Dep. 82:16-23. Kelly swung the baton each time as hard as he could, with both hands holding it like a baseball bat. Kelly Dep. 92:24-93:51, 63:6-13,108:21-25, 109:2-11. Silva never reached for Kelly’s weapon. Kelly Dep. 81:9-18. Kelly grabbed the dog so it would stop engaging Silva (and also Kelly’s ankle where the dog had bit him) because the K-9’s attempts to apprehend Silva were not effective, and placed the dog back in the patrol car. Kelly Dep. 113:19-114:6, 115:2-8, 115:21-116:4; Sword Dep. 45:16-20.

Phase Three: Kelly, Sword, and Almanza Use Batons against Silva

Undisputed

Kelly at some point radioed for medical assistance to come to the scene. JSUMF ¶¶ 18, 25.

Defendants’ Account

Sergeant Sword arrived and yelled commands at Silva to stop resisting, then struck Silva once with his baton. Kelly Dep. 90:1-4, 110:23-112:1, 113-19-114:11, 116:6-18, 21-17:1, 130:12-16; Sword Dep. 36:20-37:6. According to Sword (in an amended statement he made after having a dream in which he claimed to remember new facts), Kelly had dropped his baton when he went to grab his K-9 partner. Kelly Decl. ¶ 4. Sword saw a loose baton on the ground, which Silva reached for; thus, to stop Silva, Sword struck Silva with his baton. Sword Dep. 23:10-23, 57:17-58:22, 63:2-12. Sword hit Silva with his baton “a couple more times” as Silva was grunting, moving toward Sword, and trying to get up. Sword Dep. 45:21-46:2. Silva then got to his knees and appeared to Sword to be lunging at him and Sword thought Silva was going to bite him in the groin. Sword Dep. 46:24-47:18, 57:17-58:22. Sword had also attempted to control Silva with his hands, but was unable to because Silva was rigid and would keep pulling away from him. Sword Dep. 49:24-50:8. When Almanza arrived, both Sword and Almanza commanded Silva to get on his stomach, but he would not comply. Alman-za Dep. 42:9-24, 45:19-46:8, 48:23-50:4, 60:6-13, 60:20-61:2; Sword Dep. 57:17-58:22, 68:17-25. Based on Silva’s bizarre behavior, slurred speech, loudly yelling unintelligible words, and cursing, Almanza believed Silva was intoxicated or under the influence of PCP Almanza Dep. 59:12-60:13, 61:3-9, 61:24-62:16, 63:1-10. Deputy Almanza struck Silva’s right arm two times, but it appeared to have no effect on Silva. Almanza Dep. 65:3-8, 66:11-24, 68:4-6; Sword Dep. 56:7-13. Silva rolled onto his stomach and Almanza had his knee on Silva’s left shoulder for approximately less than 15 seconds while attempting to pull Silva’s hands out from under his body to put into handcuffs. Almanza Dep. 64:23-65:8, 69:15-24, 70:14-24, 73:22-74:20; Arrie-ta Dep. 161:22-162:7; Sword Dep. 75:25-76:14, 77:16-78:1, 78:16-79:1.

During this time, Silva was actively resisting by thrashing his body, pulling his arms under his body, kicking his legs up and moving his body from side to side. Almanza Dep. pp.73:13-74:10, 76:6-77:3, 80:3-12; Sword Dep. 58:23-59:9.

Plaintiffs’ Account

According to Plaintiffs, a few days after giving his recorded statement and after talking to Kelly, Sword gave a second recorded statement. Sword Dep., 22:5-14.

Detective Rutledge changed his report to reflect Sword’s dream and the newly included the detail about a baton lying on the ground. Rutledge Dep. 90:1-10. Detective Rutledge, who conducted the interviews, testified that Sword included details in his second interview that he did not include in the original interview. Id. 90:8-10. For example, in his post-dream interview, Sword gave new reasoning for striking Silva with a baton. Id. at 90:11-19. Also, in the second interview, Sword claimed that he had yelled “baton” to alert the other deputies that a baton was on the ground. Sword Dep. 90:20-91:6. However, no other deputy reported to Detective Rutledge that Sword yelled “baton.” Rutledge 91:7-11. Other officers, including Greer and Miller, testified that there was no baton lying near Silva. Greer Dep. 36:3-5; Miller Dep. 47:9-12. In contrast to his post-dream interview, when initially asked at the first interview why he used his baton, Sword made no reference in his answers to a baton on the ground. Sword Dep. 23:3-9.

When Sword first saw Silva, he was on the ground lying on his side. Id. at 27:20-23. Silva had blood on his face, but the injuries that caused the bleeding occurred before Sword arrived. Id. at 28:10-19. Upon Sword’s arrival, Kelly was striking Silva with a baton and Kelly’s dog was biting Silva. Kelly Dep. 89:15-90:4. Sword did nothing to de-escalate the situation. Sword Dep. 53:13-54:5. When he arrived, Sword did not see Silva with a weapon, and he did not see Silva punch or kick Kelly. Id. at 31:19-32:2. Sword thought Silva was possibly mentally ill. Id. at 49:2-5. While Kelly was engaged with Silva, Sword did not use pepper spray or a Ta-ser, options he had with him. Id. at 40:16-41:19; 41:20-21. Sword is five foot ten and weighed 280 pounds. Sword Dep. 8:17-22.

Before speaking to Kelly, Sword struck Silva with a baton. Id. at 53:13-54:5; Kelly Dep. 111:22-112:10. Silva was on his knees when Sword struck him. Id. at 45:9-12. As a result, Silva went down to the ground. Kelly Dep. 114:7-11. Sword swung his baton with two hands in a full swing. Sword Dep., 43:7-11. Almanza, who arrived 15-30 seconds after Sword, saw that the lower half of Silva’s body was on the ground, in other words, Silva was not standing. Al-manza Dep. 40:7-25; Kelly Dep. 113:3-18. With Almanza’s arrival, there were three officers at the scene. Id. at 58:21-23. Neither Kelly nor Sword was in any danger when Almanza arrived. Id. at 55:2-7. Al-manza did not speak to Sword or Kelly about coming up with a plan before physically engaging Silva. Id. at 50:14-19. Al-manza claims that he was afraid of Silva because he appeared to be large and heavy, was not complying with commands to roll onto his stomach, and appeared to be intoxicated. Id. at 57:20-63:15. Before striking Silva with his baton, Almanza did not see Silva punch, kick, or bite anyone. Id. at 65:3-18.

Defendants Kelly, Almanza, and Sword all struck Silva multiple times with their batons. Sword Dep. 56:14-57:3. For each baton strike, Kelly swung as hard as he could. Kelly Dep. 92:24-93:5. Sword struck Silva at least 7 to 12 times, holding the baton in two hands and swinging it in a full swing. Sword Dep. 16:20-23; 17:12-20, 43:7-11. Almanza swung his baton with full force, using both hands. Almanza Dep. 66:25-67:10. According to percipient witnesses, while one officer restrained Silva by applying body weight to his back, two other officers hit Silva with batons. Medina Dep. 28:4-7. Witnesses testified that deputies struck Silva in the head with batons a number of times. See Land Dep. 27:24-28:10; T.A. Dep. 63:14-19; Vasquez Dep. 104:4-12, 119:3-120:1; S. Quair Dep. 82:8-12, 95:2-14; Melendez Dep. 82:19-83:3. Multiple KCSO Deputies beat Silva with their fists, kicked him, and struck him with batons while Silva yelled and screamed and later gurgled. Land Dep. 22:11-19; Medina Dep. 30:7-21; O’Connor Dep. 41:17-42:5; Dorsett Dep. 22:3-25, 27:1-4, 28:6-11; Ar-rieta Dep. 44:23-45:10, 112:10-25; T.A. Dep. 19:24-21:11; Vasquez Dep. 113:5-8, 119:3-120:1, 125:3-11; S. Quair Dep. 81:7-15, 95:2-14; Melendez Dep. 79:3-17, 82:19-83:3.

When Deputy Kelly was on top of and had his body weight pressed on Silva, he did not consider getting off Silva to get him to calm down. Kelly Dep. 96:12-19. Sword and Almanza allege they commanded Silva to get on his stomach, and Silva rolled over into a prone position after the officers asked him to do so. Sword Dep. 76:5-14. Almanza then pushed Silva’s right shoulder in an attempt to prevent him from standing up. Almanza Dep. 50:5-10. Almanza struck Silva’s right arm two times with a baton. Almanza Dep. 65:3-8, 66:11-24, 68:4-6; Sword Dep. 56:7-13.

Phase Four: Brock, Miller, Stephens, Greer, Phillips and Bright Arrive

Undisputed

Sword, already on the scene, at some point radioed for medical assistance to respond. JSUMF, ¶¶ 18, 26. Sword’s call for medical aid occurred before the Decedent was handcuffed. JSUMF ¶27. Deputies Brock, Miller, Stephens and Greer arrived at the scene near in time to when Sword placed a call for medical assistance. Stephens Dep. 22:25-23:4, 29:17-31:23; Greer Dep. 23:15-19, 24:11-13, 35:14-24. Two CHP Officers, Phillips and Bright, came after hearing the radio call for back-up and they came to the scene with the location and information that KCSO was involved in a “148,” but had no other information. Bright Dep. 26:9-28:13; Phillips Dep. 24:19-26:6. When they arrived on the scene, they saw three KCSO officers engaged in a physical struggle with Silva. Id. 31:22-33:12; Phillips Dep. pp. 30:21-31:4. When Brock arrived, Silva was on the ground struggling with officers. JSUMF ¶ 36; Brock Dep. 28:15-29:6. Deputies were telling Silva to “stop resisting,” “stop fighting” or words to that- effect. Arrieta Dep. 134:1-6, 134:9-11; Greer Dep. 43:24-44:5; Kelly Dep. 130:12-16. Silva was screaming. Arrieta Dep. P 126:21-127:11, 131:21-132:9; Medina Dep. 45:21-22; Vasquez Dep. 106:4-8; Almanza Dep. 44:11-45:6; Bright Dep. 49:21-50:8; Greer Dep. 38:13-23; Melendez Dep. 95:13-15,108:17-109:12, 136:1-17; Miller Dep.45:14-22; Kelly Dep. 98:3-7, 116:13-18.

Phillips and Bright assisted with the handcuffing of Silva. JSUMF ¶ 51. When Stephens arrived, Silva was handcuffed. Stephens Dep. 30:21-25. About 30 seconds after Silva was handcuffed, Sword asked for a hobble and Brock took over for him in the attempt to control Silva’s legs. Phillips Dep. 41:5-13; Sword Dep. 89:25-90:2. From that point, Sword had no further physical contact with Silva. Bright Dep. 36:9-10, 48:6-25; Greer Dep. 44:9-17; Miller Dep. 37:23-38:9, 39:2-40:8; Sword Dep. 81:19-82:2, 87:4-11, 89:25-90:2, 92:5-18. Al-manza is five foot seven inches tall, and weighed between 165 and 170 pounds. Al-manza Dep. 58:3-7; Sword Dep. 57:5-7. Miller weighed 230 pounds. Miller Dep. 51:14-16. Brock is approximately 5 foot 6 inches and weighed 120 pounds. Sword Dep. 88:2-3. Stephens is six feet and one inch tall, and he weighed 260 pounds. Stephens Dep. 38:11-15; Sword Dep. 123:1-2. The deputies’ equipment weighs between 15 and 20 pounds. Sword Dep. 123:3-6.

Defendants’ Account

During the handcuffing process, Silva continued to actively resist law enforcement by bucking and twisting his body, and continually thrashing around. Phillips Dep. 34:3-18, 37:19-38:1, 44:22-45:6, 49:19-50:4. Sword was using body weight in an attempt to control Silva’s legs. Bright Dep. 35:10-36:5, 47:21-24; Greer Dep. 32:15-33:2, 37:4-6; Sword Dep. 76:20-77:1, 77:7-15. Silva kicked his legs, knocking Sword and Brock off of him. Greer Dep. 32:15-33:2; Sword Dep. 79:6-22, 81:19-82:2, 83:19-84:14. Brock, replacing Sword who was holding Silva’s legs, then crossed Silva’s legs, controlling them with his hands. Brock Dep. 30:13-31:14; Miller Dep. 39:2-16. Silva continued to resist law enforcement throughout the time Phillips was physically engaged with Silva. Phillips Dep. 30:20-24; 34:3-10; 37:19-38:1; 40:5-18; 44:22-45:6; 49:19-50:4.

When Stephens arrived, a group of deputies and CHP officers were struggling with Silva who was on the ground actively resisting efforts to be taken into custody, by pushing up off the ground, rolling over, and kicking. Stephens Dep. 29:17-30:04, 31:1-17. A large group of deputies and CHP officers were on top of Silva (id. 30:11-20) as he lay chest-down on the ground. Stephens Dep. 29:17-20. Silva was trying to push himself up off the ground. Stephens Dep. 29:24-30:1. Stephens put his knee on Silva’s right shoulder and used his body weight to hold Silva down and stop Silva from resisting. Stephens Dep. 32:17-25. Stephens had his knee on Silva’s shoulder for less than 5 minutes. Stephens Dep. 35:2-17. Deputies did not consistently have their weight placed on Silva’s back during the incident. Arrieta Dep. 161:22-162:7.

Greer testified that he never saw Kelly, Almanza or Sword in physical contact with Silva. Greer Dep. 44:9-45:13. Decedent was not struck with a baton or otherwise beaten while Brock, Miller, Stephens and Greer were present at the scene. Stephens Dep. 34:2-4, 34:17-20, 34:21-35:1; Brock Dep. 33:2-7, 36:19-37:9; Greer Dep. 32:22-33:1, Miller Dep. 37:20-38:23. Neither Bright nor Phillips observed any officer or deputy strike Silva with a baton. Bright Dep. 17:15-21, 58:11-12; Phillips Dep. 58:11-12. Phillips did not observe any law enforcement officer use any physical force against Silva except to attempt to hold Silva in place for handcuffing and leg restraint (hobble) deployment. Phillips Dep. 58:3-10. Other than to extract Silva’s left arm from underneath his body for handcuffing, Bright did not use any physical force or his own body weight against Silva during the altercation. Bright Dep. 37: 14-21.

Plaintiffs’ Account

According to witnesses, CHP officers (Phillips and Bright) arrived on the scene, standing outside their vehicles while Deputies were hitting Silva with batons and attempting to hold Silva’s arms behind him. Arrieta Dep. 119:5-120:9. Approximately two minutes after Almanza arrived, officers had placed Silva in handcuffs. Kelly Dep. 120:16-21. The handcuffing was a few minutes after Sword’s arrival and also after Silva was chest-down (Sword Dep. 86:4-18, 89:19-24; Almanza Dep. 115:20-116:23), and about 30 seconds to a minute after the CHP officers arrived. Phillips Dep. 37:19-24.

When CHP Officers Phillips and Bright arrived, Silva was chest-down on the ground and two deputies were on top of him. Bright Dep. 31:22-32:23; Phillips 30:21-31:4, 31:19-32:19. One deputy was on Silva’s upper body, and one was on his legs. Bright Dep. 33:1-8. As Silva was being handcuffed, Sword was on Silva’s legs, Almanza was on Silva’s left shoulder, and Stephens was on Silva’s right shoulder. Sword Dep. 80:8-17. Almanza had his knee on Silva’s back and was using body weight to hold him down. Bright Dep. 35:15-36:2. Bright assisted in handcuffing Silva. Bright Dep. 33:21-34:10, Almanza Dep. 79:12-14. As Silva was handcuffed, Brock replaced Sword on Silva’s legs and claims he was merely on Silva’s legs. Sword Dep. 82:3-21; Brock Dep. 30:23-31:14. However, other testimony supports that Brock was laying on Silva’s back, not legs. Kelly Dep. 121:22-122:5, Sword Dep. 88:2-3. Miller applied weight to Brock’s back while Brock was in contact with Silva. Miller Dep. 50:17-24. Before and after Silva was handcuffed there were three deputies holding him down. Sword Dep. 109:8-13. Silva was chest-down on the ground when deputies were on top of him. Bright Dep. 31:22-32:23; Phillips 30:21-31:4, 31:19-32:19. Silva remained prone and chest-down when he was handcuffed behind his back. Sword Dep. 81:14-18. After he was in handcuffs, Silva remained chest-down and continued to try to lift up his chest. Sword Dep. 88:15-24. Officers remained holding down Silva’s left and right shoulders. Sword Dep. 114:7-15.

In contrast to Defendants’ estimate that Almanza was on Silva’s back for only 15 seconds, Plaintiffs, based on the officers’ deposition testimony about estimates of the time it took for specific acts, estimate that officers were pressing weight on Silva’s back for approximately eight to ten minutes. See Doc. 131-3 at 2 (consolidating the officers’ estimates). While being held chest-down on the ground, Silva tried to lift up his upper body. Sword Dep. 79:6-13. Sword testified that after Silva was prone, it took 30 seconds to a minute to get his hands out from underneath his chest. Sword Dep. 79:23-80:11. Sword also testified that during the approximate minute that it took to get Silva’s hands out from underneath his chest, Sword was on Silva’s legs, Almanza was on Silva’s left shoulder, and Stephens was on Silva’s right shoulder. Sword Dep. 80:8-17. Plaintiffs dispute Defendants’ contention that Silva did not tell or express to Deputies that he could not breathe or was having difficulty breathing, because Silva was screaming and yelling for his life throughout the encounter. For the entire time between when CPIP officers arrived but before Silva was handcuffed, Silva was chest-down with weight on his back (Phillips Dep. 37:19-24, 38:5-8), and throughout the altercation, Silva was screaming. Bright Dep. 60:23-61:4. Silva screamed for help, at times yelling out “help,” and “help me.” Medina Dep. 45:21-22; Vasquez Dep. 106:4-8.

Phase Five: More Officers Arrive; Officers Apply Restraints and a Spit Sock

Undisputed

Responding to the scene together, Deputies Greer and Miller were the last Defendant officers to arrive. JSUMF ¶ 43. Greer saw Brock lying on Silva’s legs and being pushed backwards. JSUMF ¶48. Miller put his hand on Brock’s back for approximately 10 seconds to keep Brock from being kicked off Silva’s legs. Brock Dep. 49:2-14, 50:1-4; Miller Dep. 33:5-21, 39:2-6, 39:18-40:8, 47:22-48:4, 50:14-51:9.

During the handcuffing process Silva was continually moving by bucking and twisting his body. Phillips Dep. 30:21-24; 34:3-10; 37:19-38:1; 44:22-45:6; 49:19-50:4. Phillips did not use any physical force or his own body weight to hold Silva in place while he assisted with handcuffing Silva. JSUMF ¶ 52. Silva was kicking and thrashing, trying to throw Brock off. Id. Silva kicked Brock 5 to 10 times. Brock Dep. 49:2-14, 50:1-4. Miller used only enough weight to keep Brock from falling. Id. Miller had no direct physical contact with Silva. JSUMF ¶ 41.

Brock next assisted a CHP officer by wrapping a nylon restraint (hobble) around one of Silva’s legs. Id. at ¶¶ 20, 38; Brock Dep. 32:3-32:14. Phillips assisted with deployment of the first nylon leg restraint on Silva by wrapping the safety hook of the nylon leg restraint around the chain of the handcuffs. Id. at ¶ 53. Phillips retrieved and assisted with deployment of a second nylon leg restraint on Silva by wrapping the open end of the restraint around one of Silva’s ankles or legs, but did not use any physical force or his own body weight to hold Silva in place while he attempted to deploy the first or second nylon leg restraints. Id. at ¶¶ 54, 55. While other officers attempted to restrain Silva, Phillips did not use any physical force or his own body weight to hold Silva in place. Id. at ¶ 56. Phillips’ physical involvement with Silva ended after he partially deployed the second nylon leg restraint and then moved to position himself to steady Silva’s head from continuing to move around. Phillips Dep. 49:14-18; p. 60:17-20. Miller requested and received confirmation from dispatch that medical aid had been dispatched to the location in response to Sword’s call for medical assistance. Miller Dep. 16:13-19, 52:12-24. Bright never had any subsequent contact with Silva after Bright stepped away to clean his hands. JSUMF ¶ 50.

Defendants’ Account

After Bright and Phillips arrived, KCSO Sergeant Sword asked for a hobble. Sword Dep. 89:5-16, 89:25-90:8. Both before and after the officers applied the hobble, Silva continued to actively resist officers by bucking and twisting his body, and thrashing his head from side to side. Greer Dep. 41:12-22; 45:14-19; Brock Dep. 28:15-29:6, 30:13-31:14, 49:2-4, 50:1-4, 54:6-12; Stephens Dep. 29:17-30:4, 31:1-17, 33:11-16; Miller Dep. 39:18-40:8; 42:24-43:14, 47:22-48:4; Bright Dep. 59:18-60:6; Phillips Dep. 40:5-18, 44:22-45:6, 49:19-50:4. After other officers completed handcuffing Silva, Bright wrapped the open end of the first nylon leg restraint around one of Silva’s legs, and once Bright stepped away to clean his hands, Bright’s physical involvement with the incident ended. Bright Dep. 33:21-24; 36: 14-17, 38:8-13. Silva continued to resist law enforcement at and after the time Bright stepped away to clean his hands. Bright Dep. 32:13-25; 34:24-35:9; 36:22-37:5; 59:18-60:6; Phillips Dep. 34:3-10; 37:19-38:1; 40:5-18; 44:22-45:6; 49:19-50:4.

Plaintiffs’ Account

According to Plaintiffs, after Silva was handcuffed, he did not present a danger to anyone other than himself. Almanza Dep. 81:22-25. Nevertheless, Officers decided to put him into a hobble restraint. Sword Dep. 65:18-19. Sword asked for a hobble restraint about 30 seconds after Silva was handcuffed. Id. 89:25-90:2; Phillips Dep. 41:5-13. About 45 seconds to a minute after Silva was handcuffed, Bright went tó the trunk of his patrol car to retrieve a hobble restraint, returned, and applied it to Silva’s legs. Bright Dep. 36:14-25. In the time it took Bright to retrieve the hobble, Silva remained chest-down. Sword Dep. 91:3-10. While the hobble was being retrieved, Brock was on Silva’s legs, Almanza was on his left shoulder, Stephens was on his right shoulder, and a CHP officer was near his head. Id. 91:11-19. Two to three minutes passed between the time Stephens arrived and the time the first hobble was applied. Stephens Dep. 33:11-13, 39:7-16. During the two to three minutes before the first hobble restraint was applied, the deputies continued to apply their body weight to Silva. Id. 33:11-25, 34:21-35:1.

Although Silva was in handcuffs, deputies continued to use force to hold him down. Phillips Dep. 40:19-21. Almanza, who weighed 170 pounds, was holding down Silva’s left shoulder area. Sword Dep. 78:16-24, 57:5-7, Almanza Dep. 58:3-7, Bright Dep. 35:15-36:2. Stephens put his knee on Silva’s shoulder to hold Silva down. Stephens Dep. 32:17-25. Brock, who weighs 120 pounds, was laying on Silva’s back. Kelly Dep. 121:22-122:5, Sword Dep. 88:2-3. Miller, who weighed 230 pounds, applied some weight to Brock’s back while he was in contact with Silva. Miller Dep. 50:17-24, 51:14-16. Sword (280 pounds) was on the back of Silva’s legs and his knees. Sword Dep. 69:1-7, 76:20-24. When Silva was handcuffed, Brock replaced Sword on Silva’s legs. Id. 82:3-21; Brock Dep. 30:23-31:14. The deputies’ equipment puts between 15 and 20 additional pounds on each of them. Id. 123:3-6.

While Silva was chest-down and handcuffed with weight on his back, Stephens twisted Silva’s wrist behind his back so that it was sticking straight up in the air. Stephens Dep. 36:2-23. Stephens had to use all of his strength to lift Silva’s arms behind his back in this way. Stephens Dep. 38:2-10. Phillips successfully connected the hobble to the handcuffs. Sword Dep. 93:15-94:1, Phillips Dep. 47:17-21. Connecting a hobble restraint to handcuffs is known as “hog-tying.” Almanza Dep. 84:11-14. When the hobble was connected to the handcuffs, Silva was still chest-down. Phillips Dep. 46:15-22. Once nylon leg restraints were applied to Silva, he was not immediately turned onto his side. Bright Dep. 68:5-8; Stephens Dep. 56:4-6.

About two to three minutes passed between the time Stephens arrived and the time the first hobble was applied. Stephens Dep. 33:11-13, 39:7-16. During that time the deputies applied their body weight to Silva. Id. 33:11-25, 34:21-35:1. About a minute passed between the request for a hobble and the first hobble being applied. Phillips Dep. 44:22-45:2. Silva was continuously chest-down between the time he was handcuffed and the time he was hobbled, still with weight on his back. Id. 45:7-12. Officers applied a second hobble one to two minutes after Silva was hog-tied. Id. 49:19-23. Silva was chest-down with weight on his back from the time he was handcuffed to the time a second hobble was applied. Id. 49:19-50:8. Silva was still trying to lift his chest. Bright Dep. 59:25-60:6.

During the incident, Silva had blood all over his face. Phillips Dep. 57:14-20. After helping apply the hobble, Bright washed the blood from his hands. Bright Dep. 38:25-39:2. From 60 to 90 seconds after Bright walked away to clean the blood from his hands, Silva appeared to “calm down.” Id. 40:2-5. When Bright returned his attention to Silva after the 60 to 90 second interval, Silva was still chest-down. Id. 40:2-5; 42:23-43:1. Silva was “wailing continuously” until he “calmed down.” Id. 50:3-8. Sword never saw Silva standing up. Sword Dep. 68:4-6. Silva never hit anyone. Almanza Dep. 80:17-20. According to Phillips, Silva did not threaten anyone’s life during the incident. Phillips Dep. 66:15-24.

Phase Six: Sword and Greer Apply Spit-Sock to the Prone and “Hog-tied” Silva

Undisputed

Sword requested a spit-sock. Sword Dep., 94:8-19; 95:7-9. A spit mask is made of mesh material and its purpose is to limit officer exposure to spit, blood and vomit. Greer Dep. 50:8-19. Greer placed the spit-sock to Silva. JSUMF ¶ 44. Approximately 20 to 30 seconds after Greer applied the spit sock to Silva’s face, Silva vomited into the mask. Id. at ¶ 45; Sword Dep. 115:5-7; Greer Dep. 39:23-25, 40:10-12, 42:7-25. At some point after Silva had vomited, Al-manza rolled Silva onto his side. Greer Dep. 40:16-21, 45:14-19; Stephens Dep. 40:5-41:1; Bright Dep. 59:18-60:6, p. 43:23-25; Almanza Dep. 89:1-7, 92:12-24, 93:16-94:6, 95:9-20, 120:7-9; Medina Dep. 38:15-22; Miller Dep. 43:24-44:1. Brock and Al-manza checked Silva for a pulse. Id. at ¶ 39.

Defendants’ Account

Greer did not believe that the mask interfered with Silva’s breathing. Greer Dep. 50:8-19. Silva never told deputies that he could not breathe or was having difficulty breathing. Kelly Decl. ¶ 5; Sword Decl. ¶ 3. Once Silva stopped fighting and after he had vomited, Silva was rolled onto his side. Greer Dep. 40:16-21, 45:14-19; Stephens Dep. 40:5-41:1; Bright Dep. 59:18-60:6.

Plaintiffs’ Account

Sword requested a spit mask even though Silva never spit on anyone. Sword Dep. 94:8-19, Sword Dep. 95:7-9. While Greer put the spit mask on Silva (JSUMF ¶ 44), Silva was still chest-down. Almanza Dep. 83:20-25, Greer Dep. 37:21-38:3, 41:23-42:6. This happened one to two minutes after Silva was hog-tied. Phillips Dep. 48:16-24.

After Silva vomited (Greer Dep. 40:22-41:11), officers rolled Silva onto his side. JSUMF, ¶46. Greer told other officers that Silva had vomited. Greer Dep. 43:1-7, 49:2-7. Because Greer did not want to contaminate the officers, he did not remove the vomit-filled mask from Silva’s face. Greer Dep. 43:1-7, 49:2-7. At the time of the incident, Greer did not have any specific training about the use of a spit mask. Greer Dep. 49:12-15. After the incident, Greer did not receive any training regarding the spit mask. Greer Dep. 49:16-19.

Other officers saw deputies using their body weight to pin Silva’s upper body to the ground. Brock Dep. 35:16-36:18. Stephens put his knee on Silva’s right shoulder and used his body weight to hold Silva down, and Silva tried to get up because he was asphyxiating. Stephens Dep. 32:17-25; S. Quair Dep. 106:9-23, 107:20-108:1, 111:14-19; Melendez Dep. 134:9-15. Stephens used all of his body weight to keep Silva from lifting himself up. Stephens Dep. 41:17-42:2. Almanza was holding down Silva’s left shoulder area. Sword Dep. 78:16-24.

Officers applied weight to Silva’s back for approximately 8 to 10 minutes. DeFoe Decl. at 2 (consolidating officers’ deposition testimony). Silva was chest-down for approximately fifteen minutes. Arrieta Dep. 161:12-18. Of that time, Officers had their knees on Silva’s back for approximately ten minutes. Arrieta Dep. 162:4-7. Sheriffs deputies applied pressure to Silva’s back with their knees. S. Quair Dep. 106:9-23, 107:20-108:1, 111:14-19; Melendez Dep. 134:9-15. Almanza admits that the duration of time that Silva was handcuffed to the time he was hobbled was between 10 seconds and 10 minutes. Almanza Dep. 119:4-9. CHP officers are trained that hobbled individuals should be placed on then-side so that the restraint does not interfere with the person’s breathing. Bright Dep. 66:14-25. However, Silva was not immediately turned onto his side. Bright Dep. 68:5-8; Stephens Dep. 56:4-6. Deputies picked up and dropped Silva two times while he was facedown and hog-tied. Land Dep. 40:22-41:12; S. Quair Dep. 126:19-23; Melendez Dep. 91:14-24. During the incident, no deputy or officer ensured that the restraint was not interfering with Silva’s ability to breathe. Greer Dep. 52:17-24. Sword, as the supervisor on the scene, never told the officers to get off Silva. Sword Dep. 132:22-24. At first Silva was moving and screaming and then he became calmer and finally he became unconscious. Bright Dep. 60:23-61:4. About a minute after being placed in the hobble restraint, Silva stopped yelling and moving. Almanza Dep. 102:17-20. Silva abruptly lost consciousness and became unresponsive while he was still chest-down, with weight on his back and a spit sock over his face. Stephens Dep. 40:12-20; Phillips Dep. 51:3-52:8; Brock Dep. 40:12-17. Silva stopped yelling and became unresponsive before Almanza took his pulse. Almanza Dep. ■88:15-25. Almanza rolled Silva on his side approximately 30 seconds after the spit mask was removed. Almanza Dep. 120:10-18.

Phase Seven: Silva Loses Consciousness and Paramedics Arrive

Undisputed

Silva did not have a pulse when paramedics arrived. Almanza Dep. 91:12-15; Miller Dep. 54:8-14.

Defendants’ Account

As Silva was on his side, Almanza checked and found a pulse on Silva one to two times and observed Silva’s chest move as if he was breathing. Almanza Dep. pp. 85:25-86:18, 88:9-11, 89:1-90:8, 90:16-91:6, 120:21-23; Bright Dep. pp. 41:20-42:14; Greer Dep. pp. 46:17-24, 47:11-22; Kelly Dep. pp. 158:8-14, 158:24-159:8; Miller Dep. pp. 53:3-14, 55:24-56:1. Almanza checked for a pulse a third time, but did not find one, and at that point he first noticed Silva had stopped breathing. Al-manza Dep. pp. 89:8-11, 89:20-22, 90:6-91:8, 91:16-92:11; Almanza Decl. ¶ 3. Paramedics arrived approximately thirty seconds to a minute after Silva became unresponsive. Almanza Dep. pp. 91:9-15; Arrieta Dep. 156:22-157:7; Brock Dep. 39:13-15; Miller Dep. 44:5-23; Sword Dep. 112:17-23; Al-manza Dep. 120:24-121:10.

Plaintiffs’ Account

Almanza took Silva’s pulse immediately after he was rolled onto his side. Almanza Dep. 120:21-23. Brock also took Silva’s pulse and felt one after Silva became unresponsive and was rolled onto his side. Brock Dep. 43:7-44:4. The officers did not remove the handcuffs or hobble until after Silva was unresponsive. Sword Dep. 115:21-116:3.

After Silva was handcuffed but before the paramedics arrived, Bright walked to his car and switched off the video recording equipment. Bright Dep. 18:11-23. None of the officers attempted CPR on Silva before the paramedics arrived. Kelly Dep. 158:1-4. During the time waiting for paramedics, Almanza monitored Silva’s pulse as it faded and he died; Almanza detected a pulse that started out strong, weakened, and then disappeared. Almanza Dep. 89:8-90:8. After the incident where officers encountered Silva, there was blood on the sidewalk. Kelly Dep. 130:25-131:6; Bright Dep. 50:10-14.

Phase Eight: Investigation— Cause of Death

Undisputed

The autopsy identified no broken bones. JSUMF ¶ 57. On or about 1:00 a.m. on May 8, 2013, at the time blood was collected from Silva, he had a 0.095 g/100 mL Blood Alcohol Concentration (“BAC”), 2.9 ng/mL of Clonazepam, 30 ng/mL of Amphetamine, and 210 ng/mL of methamphetamine in his blood. JSUMF ¶ 58. Silva’s family members did not know him to have had mental health or emotional problems. JSUMF ¶ 59.

Defendants’ Account

Silvia died as a result of cardiac arrest from Hypertensive heart disease. Dr. Carpenter Dep. pp. 6:17-14:8, 34:24-35:9, 117:5-119:5, 120:19-25, 132:2-133:25, 135:5-15, 151:2-9,154:25-155:4; Dr. Sheridan Dep. pp. 10:15-25, 133:6-134:15, Ex. 1 to Dr. Sheridan Dep. The methamphetamine and Silva’s chronic heart disease caused his heart to stop. Dr. Carpenter Dep. pp. 6:17-14:8, 34:24-35:9, 97:5-17, 111:23-112:3, 118:3-12, 135:17-136:3, 141:3-16, 151:2-9, 163:14-24. The baton strikes that hit Silva were in non-lethal locations and did not break any bones. Dr. Carpenter Dep. pp. 6:17-14:8, 34:24-35:9, 104:23-106:12, 128:5-130:25, 132:2-133:3, 141:22-142:2, 151:2-9, 164:23-165:1. The dog bites on Silva’s body were in non-lethal locations. Dr. Carpenter Dep. pp. 6:17-14:8, 34:24-35:9, 151:2-9, 141:18-21,164:23-165:1.

Plaintiffs’ Account

Silva’s death was a homicide. O’Halloran Deck, ¶ 10. Plaintiffs submit evidence that Silva ultimately died from restraint asphyxia with compression (positional asphyxia). Id. at ¶¶ 6-7. Had Silva not been restrained the way he was on the day of the incident he would not have died. Id. at ¶ 8. Had Officers recognized earlier and addressed promptly Silva’s respiratory distress or his subsequent loss of consciousness, his asphyxia death was preventable. Id. at ¶ 9.

Officers struck Silva in the head, thus, although the baton strikes were not the cause of death, some baton strikes were to potentially lethal locations on Silva’s body. Land Dep. 27:24-28:10; T.A. Dep. 63:14-19; Vasquez Dep. 104:4-12, 119:3-120:1; S. Quair Dep. 82:8-12, 95:2-14; Melendez Dep. 82:19-83:3. Similarly, the dog bites to Silva’s face were not the cause of death, but were in lethal locations. The asphyxia caused loss of consciousness, hypoxic brain damage and cardiac arrest. O’Halloran Decl. ¶ 6. The ultimately fatal asphyxia occurred during a struggle and prone restraint procedure with KCSO deputies and CHP officers. Id. Silva’s obese habitus with a large, protruding abdomen increased his susceptibility to asphyxia while compressed prone on the sidewalk. Id. at ¶ 7. Plaintiffs’ forensic pathologist expert does not agree that the death certificate as issued by the Kern County Coroner accurately expresses the appropriate cause and manner of Silva’s death. Id. ¶ 10.

D. Other Undisputed Facts

At the time of the incident, Kelly was carrying a baton, pepper spray, and Taser (Kelly Dep. 32:25-33:1; 33:2-3) and Sword was carrying a baton, pepper spray, Taser, a firearm, a radio, and handcuffs (Sword Dep. 13:7-13). Officers were unaware cell phone video of the incident existed until they learned of it later through the media. JSUMF ¶ 35, 42, 49. The dog, Luke, had been Kelly’s K-9 partner since 2011 and they trained together as a team. Kelly Dep. 20:6-25:17. Officers are trained that people under the influence of methamphetamine are highly unpredictable, have a high pain threshold, and sometimes act out violently. DeFoe Dep. 6:19-7:15, 18:21-21:8, 32:3-8, 34:4-35:20, 37:22-38:7, 42:2-22.

The KCSO has a policy on the use of force. JSUMF ¶ 60; and Deposition of Lance Grimes, 17:25-20:10, Policy F-100 (Exhibit 2 attached to deposition of Lance Grimes). KSCO Policy F-100 permits only that amount of force necessary under the circumstances confronting the deputy. JSUMF ¶ 61. All KCSO deputies are trained on Policy F-100. Id. at ¶ 62. The KCSO has a policy on the uses of hobbles (id at ¶ 63) and batons (id at ¶ 66). See also Grimes Dep. 17:25-20:10; 33:19-35:13; Ex. 4 (Policy F-600, batons); Ex. 3 (Policy F-350, hobbles). Per policy F-600, use of batons is appropriate when lower levels of force are ineffective. Grimes Dep. 37:13-24. Per policy F-600, use of batons is appropriate if the individual is assaultive or combative. Grimes Dep. 38:18-21. All KCSO deputies are trained on Policy F-600. JSUMF ¶ 67. KCSO deputies are trained to avoid head strikes with a baton. Grimes Dep. 34:21-35:6. All KCSO Deputies that carry a hobble are required to undergo training on Policy F-350. JSUMF ¶ 64. KCSO Policy F-350 is available to all KCSO deputies. Id. at ¶ 65. A deputy can assist an officer who carries a hobble, in its application of a hobble without training on Policy F-350. Grimes Dep. 62:4:20. KCSO Policy F-350 requires deputies to roll a person onto their side as soon as possible if the individual is not actively resisting. Grimes Dep. 32:17-22, Policy F-350. KCSO Policy F-350 is available to all KCSO deputies. JSUMF ¶ 65.

KCSO deputies are trained on policies through new hire orientation and advanced officer training. KCSO deputies receive training on restraint techniques. Grimes Dep. 52:2-25; 46:2-48:4. KCSO Sergeant Sword and Deputies Kelly, Almanza, Stephens, Brock, Miller and Greer went through new hire orientation. Mahoney Deck (KCSO custodian of records); Individual Training Activity Logs. KCSO Sergeant Sword and Deputies Kelly, Almanza, Stephens, Brock, Miller and Greer went through advanced officer training and received training on use of force, batons, handcuffs, and restraint/takedown techniques. M; Individual Training Activity Logs; Brock Dep. 19:13-22:21, 60:23-25, 78:12-80:7; Greer Dep. 19:24-20:4, 20:12-25, 21:1-14, Stephens Dep. 18:22-22:4, Miller Dep. 22:22-23:25^ 24:11-13, 24:17-19; Kelly Dep. 20:6-21:15; Almanza Dep. 96:10-97:13; Sword Dep. 85:5-86:3. KCSO deputies receive training on the restraint of a person in a prone position. Grimes Dep. 53:2-8. Training includes hands-on classes taught by the KCSO defensive tactics team. Id. at 54:18-57:5. KCSO deputies are taught to roll the person onto their side as soon as possible. F. Wheeler Dep. 21:24-22:18. KCSO deputies are trained to roll a person onto their side as soon as possible when handcuffed. Id. at 23:4-8. KCSO deputies are trained to roll a person onto their side as soon as possible when handcuffed and hobbled. Id. at 23:20-25.

The custom and practice of the KCSO is to investigate in-custody deaths. B. Wheeler Dep. 72:22-73:19. The custom and practice of the KCSO is to determine whether conduct during an in-custody death comports with policy. Id. at 72:22-73:19. There is no evidence in the record that officers were disciplined or re-trained in any way; no officer was found to have violated County policy; and neither the KCSO nor the County made any determination whether the deputies’ conduct during the incident violated policy. Id. at 50:24-51:6. The Silva incident went through an informal review by the KCSO and County Counsel instead. Id. at 77:14-78:20.

Plaintiffs’ Account

Silva’s family members did not know Silva to have mental health or emotional problems. Garlick Dep. pp. 91:5-18, 103:5-8, 174:23-25, 175:7-10; C. Silva Dep. pp. 62:12-16, 62:22-63:6, 124:23-125:1; J. Silva Dep. pp. 52:5-7, 77:25-78:3; M. Silva Dep. pp. 103:21-24,173:19-21,173:25-174:2.

Plaintiffs dispute Defendants’ account of their policies to the extent that Plaintiffs allege that the County of Kern deliberately refuses to actually enforce these policies in practice. For example, after a court in an earlier case (the “Lucero case”) found Greer to have used excessive force and awarded a $4.5 million settlement, Greer was told that his conduct in that case was “well within policies of the Kern County Sheriffs Department.” Greer Dep. 59:9-23. Greer was never told that his conduct relevant to the Lucero case was not within policy. Greer Dep. 61:5-7. After the incident in this case, Greer did not receive any retraining regarding restraint asphyxia, positional asphyxia, hobble restraints, or preventing in-custody deaths. Greer Dep. 62:3-24.

E. Disputed Familial Relationship between Silva and Garlick

Undisputed

Silva was never married. JSUMF ¶ 69. Tara Garlick was not married to Silva. Id. ¶ 68. Silva’s mother, Merri Silva, never considered Tara Garlick to be her daughter-in-law. Id. ¶ 70. Garlick and Silva never jointly prepared or jointly filed Federal or State tax information. Id. ¶ 71. Garlick held her own separate checking account to which Silva was never a signatory. Id. ¶ 72. Silva held his own separate checking account to which Garlick was never a signatory.Id. ¶ 73. Silva had a debit card for his own separate checking account one month prior to his death, which Garlick never used. Id. ¶ 74. Silva held his own separate credit account one month prior to his death, which Garlick was neither authorized to use nor did use, prior to Silva’s death. Id. ¶¶ 75, 76.

Defendants’ Account

In addition to the separate nature of their financial lives, Plaintiff Garlick and Silva rarely socialized together with others or outside the house. Garlick Dep. 129:8-10.

Plaintiffs’ Account

Silva and Garlick were in a romantic and intimate relationship for approximately 11 years before Decedent was killed on May 8, 2013. Id. at 21:4-6; 111:10-16. As part of their intimate and romantic relationship, Silva and Garlick had four children together (Plaintiffs M.K.S., C.J.S., C.R.S., and E.Z.S.). Id. at 60:19-64:3. Even before their first child, M.L.S. was born, Silva and Garlick shared everything. Id. at 25:20-23. The couple lived together throughout their entire relationship. Id. at 17:4-7; 21:11-13; 111:10-16;112:10-12; 159:25-160:19; 168:2-9; J. Silva Dep. 44:12-45:16; 47:15-48:12. The couple never separated. Id. at 159:25-160:19; 168:2-9. They made efforts to stay a family unit. For example, in 2009 or 2010, soon after having their third child together, in an effort to stay a family unit, Silva and Garlick with their children moved into Bethany’s Homeless Shelter and stayed there for a few months. Id. at 48:7-9; 13-17; 51:7-13; 168:2-9; J. Dep. 45:22-46:2, 48:7-9; 168:2-9; J. Silva Dep. 74:6-11, 49:22-25; 51:7-13. Next, they moved into a home on South Real Road, where the couple held a joint lease in both of their names. Id. at 50:1-3; 114:13-15. While living there, Silva and Garlick had their fourth child (E.Z.S.). Id. at 51:12-14. Throughout their relationship, Silva and Garlick jointly signed five leases for their various residences. Id. at 113:13-15; 120:16-121:15.

Together, the couple raised their four children at their home on South Real Road. Id. at 50:1-3, 51:12-14. They attended their two older daughters’ (M.L.S. and C.J.S.) parent teacher conferences. Doc, 131-5, Ex. 26. They helped their two older daughters with their homework every night. Id. They attended the children’s school functions together. Garlick Dep. 74:20-75:2; 136:3-9. Together, they took their children to church. Id. 152:22-153:4. They regularly took their youngest children on walks together, went to the store, and to the park. Id. at 136:3-10; 143:3-12. They all went grocery shopping together and to the children’s appointments together. For at least the three years before his passing, Silva and Garlick attended their children’s birthday parties. J. Silva Dep. 94:6-10. Silva, Garlick, and their minor children M.L.S., C.J.S., C.R.S., and E.Z.S. were a family. Garlick Dep. 79:14-22; 136:3-10. As parents, Garlick and Silva each had important roles in their children’s lives: Silva was their friend and made them smile and Garlick taught them morals and values. Id. at 135:24-136:2.

Family members considered that Silva and Garlick were