Unpublished Disposition, 894 F.2d 409 (9th Cir. 1986)

MEMORANDUM^** 

In this 42 U.S.C. § 1983 action, appellant Barbara J. Means appeals the district court's dismissal of her claims against the County of Santa Clara and County Executive Sally Reed, and the court's summary judgment in favor of Deputy Sheriffs Mark Wulfing and Gayla Cooper.

Appellant's claims stem from an incident on April 4, 1986. After appellant was pulled over by Wulfing and Cooper on a traffic violation, she apparently refused to show identification as requested. Appellant later held on to the steering wheel when the officers tried to remove her from her vehicle. When she did exit the vehicle, she apparently assumed a "fetal" or sitting position. She charges that she was "jerked" out of the car, kicked in the ankle area, apparently when the officers were bringing her to their vehicle, and them "slammed" head-down into their vehicle while the deputy sheriffs were handcuffing her.

The district court dismissed appellant's claims against the County and Reed, finding that appellant had not stated a claim for which relief could be granted. The court granted summary judgment in favor of appellees Wulfing and Cooper. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Standard of Review

Where matters outside the pleadings are presented to and not excluded by the district court, as in the present case, a motion to dismiss for failure to state a claim is treated as one of summary judgment. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). In reviewing a grant of summary judgment, this court must view the evidence in a light most favorable to the non-moving party and determine whether there are any material issues of fact and whether the district court correctly applied the law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

Claims Against the County of Santa Clara and County Executive Reed

In Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), the Court held that

a local government may not be sued under Sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983.

436 U.S. at 694; see also Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). To show that the injuries she allegedly suffered are part of an official policy or pattern, appellant cited in her complaint instances of county employees calling her such names as "Miss Constitution" and "constitutionalist bitch" and injuries which she allegedly suffered while being detained in the county jail.¹  The latter included one incident where county officials threatened to use force after appellant refused to be fingerprinted, as well as numerous complaints about the lack of amenities, the noise level, and the nature of the individuals with whom she was housed.

The injuries alleged by appellant neither represent deprivations of a constitutionally protected right nor establish an "official policy" of inflicting such deprivations. The district court thus properly dismissed appellant's claims against the county. In addition, since appellant's claim against Reed was predicated on the alleged injuries discussed above, the court's dismissal of that claim was also proper.

Claims Against Deputy Sheriffs Wulfing and Cooper

Claims that law enforcement officers have used excessive force in the course of arrest are analyzed under a fourth amendment "reasonableness" standard. Graham v. Connor, 109 S. Ct. 1865, 1871 (1989). This standard requires a balancing of the nature of the intrusion on the individual's fourth amendment interests against the countervailing government interests at stake. Id. A court must evaluate "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 1872. The right to make an arrest or investigatory stop "carries with it the right to use some degree of physical coercion." Id. at 1871.

In the present case, Wulfing and Cooper were confronted with an individual who initially refused a request to present identification, locked her hands on the steering wheel, and refused to exit her vehicle. The deputy sheriffs' actions, even when viewed in a light most favorable to appellant, cannot be considered unreasonable in such circumstances.

Adequacy of Appellant's Brief

As appellees correctly note, appellant's three-page opening brief fails miserably to measure up to the standards imposed by the Federal Rules of Appellate Procedure. In violation of Rule 28, the brief contained no table of contents, no statement of the case, and no references to specific pages in the record. In violation of Ninth Circuit Rule 28-2, appellant failed to include a certificate as to interested parties, a statement of jurisdiction, a statement regarding the standard of review, and a statement of related cases. Appellant also failed to attach the proper color of cover to her opening and reply briefs. Despite these numerous deficiencies, we decline to exercise our power to dismiss the case on such grounds, see Fed. R. App. P. 3, in light of appellant's subsequent efforts to remedy them and in view of her pro se status.² 

AFFIRMED.