Unpublished Disposition, 902 F.2d 39 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 39 (9th Cir. 1990)

No. 89-15063.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS and NOONAN, Circuit Judges, and A. WALLACE TASHIMA, District Judge* .


This is an appeal from the grant of summary judgment in favor of defendants on an "excessive force" civil rights claim under 42 U.S.C. § 1983.


Plaintiff Marvalyon Gibson suffered serious injuries when he was arrested for burglary. He sued various defendants, including Dennis Dutra, a police officer of the City of Oakland, on various grounds, including the use of excessive force under Sec. 1983. The district court granted defendants' motion for summary judgment on all federal claims, including the Sec. 1983 claim, remanded the remaining pendent claims to state court, and denied a subsequent motion for reconsideration. Plaintiff appeals from the summary judgment only as to Officer Dutra and only on the Sec. 1983 Claim.

The complaint alleged that Oakland police officers chased Gibson, and eventually cornered him "in a small dug-out underground area ..." underneath a house. Officer Dutra allegedly directed his police dog to attack Gibson. Gibson claims that he "was mauled by the dog, suffering severe injuries on his legs, shoulders, hands, arms, and groin area." In addition, it is alleged that "after attempting to apply a chokehold on plaintiff, Defendant Dutra then shot Plaintiff in the abdomen with his 357 magnum revolver, causing obvious severe injury." Gibson, apparently on a plea agreement, was convicted of six counts of burglary and one count of obstructing or resisting an officer under Cal.Pen.Code Sec. 69. The Oakland Police Department Board of Review concluded that Dutra had acted properly in using potentially deadly force.

On defendants' motion for summary judgment, the district court concluded that plaintiff had failed to present "sufficient evidence to withstand a motion for summary judgment." It also concluded that " [b]eyond the allegations contained in the pleadings, plaintiff offers no evidence that he was deprived of a constitutional right.... Faced with a motion for summary judgment, plaintiff may not rely on the pleadings but must present specific facts creating a genuine issue of material fact. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)." It granted Dutra's motion for summary judgment on the Sec. 1983 claim. The district court subsequently denied plaintiff's motion to reconsider.1 


Defendant's primary contention is that the complaint failed to state a Sec. 1983 claim against Officer Dutra because only a Monell claim against the City and Chief of Police was alleged. That contention, which was not addressed to the district court on the summary judgment motion, is frivolous.

The complaint clearly alleges all of the elements of a Sec. 1983 claim. The first cause of action alleges that defendants acted under color of state law to deprive plaintiff of the right to be free from illegal searches and seizures. While the first cause of action continues on to allege facts to support Monell liability against the city, it is not limited to that defendant. To the extent Dutra's motion for summary judgment was based on the failure to state a claim, it was totally without merit.

Although plaintiff did not present any admissible evidence in opposition to the motion, summary judgment should not have been granted in this case. The district court misapplied Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), in concluding that plaintiff had not met his burden under that case. Under Celotex, the moving party bears the initial burden of demonstrating the absence of material issues of fact. Id. at 325. Dutra failed to meet his initial burden. The documents filed in support of the motion created an issue of fact in and of themselves. Since Dutra failed to meet his burden, plaintiff had no obligation to come forward with evidence to defeat the motion.

Three items of proof were submitted in support of the motion: first was the fact of plaintiff's conviction under Cal.Pen.Code Sec. 69; second was a "finding" by the Oakland Police Review Board that Dutra had acted properly; and third were plaintiff's answers to interrogatories.

A. Interrogatory Answers and Board of Review Findings

The interrogatory answers were plaintiff's statements under oath that he had been mauled and bitten; that he was offering no resistance; and that he was standing still with his back against the wall immediately prior to the shooting. Interrogatory answers when, as here, offered by the opposing party are admissible evidence and, thus, may appropriately be considered on summary judgment. F.R.Civ.P. 33(b) & 56(c). Thus, the court had before it admissible evidence in support of plaintiff's version of the incident.

Dutra filed no declaration of his version of events.2  The Board of Review's findings did recount one version of events, and concluded that Dutra had acted properly. Even assuming that these "findings" would be admissible,3  at best they created an issue of fact, precluding summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."). Thus, summary judgment was inappropriate on the basis of those facts.

The summary judgment record also included plaintiff's Pen.Code Sec. 69 conviction. Dutra argues that the conviction bars plaintiff's Sec. 1983 claim based on the use of excessive force. We conclude otherwise.

The availability of collateral estoppel is a mixed question of law and fact, in which legal issues predominate. It is reviewed de novo. Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). State law governs the application of collateral estoppel to a state court judgment in a federal civil rights action. Id. California law provides four criteria for determining whether collateral estoppel applies: (1) Did the party have motivation to fully litigate the issues; (2) Was there a full and fair trial; (3) Was the issue necessarily decided in the criminal trial; and (4) Is the party against whom estoppel asserted in privity with a party to the prior trial. Id. at 1271. The party seeking to assert estoppel has the burden of pleading and proving that estoppel should apply. "To sustain this burden a party must introduce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action." Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir. 1980).

Penal Code Sec. 69 provides:

Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty [is guilty of a criminal offense].

A "threat" can give rise to a violation of this section only if it is a threat of violence, and not of any legal act. People v. Superior Court, 199 C.A.3d 893, 894 (1984). However, a threat without violence may also result in conviction. The threat need not be directed at the officer and need not be imminent. People v. M.L.B., 110 Cal. App. 3d 501, 502 (1980) (threat to burn down officers' houses).

The issue of excessive force must necessarily have been decided in the criminal trial for estoppel to apply. In Hernandez, we held that the plaintiff's conviction for resisting arrest under Cal.Penal Code Sec. 148 did not necessarily bar his claim for excessive force. The jury had been instructed to acquit if it found that the officers had used excessive force and the defendant had used only reasonable force to protect himself. Although the jury convicted plaintiff, he was not collaterally estopped from bringing a Sec. 1983 excessive force claim. The court concluded that the jury might have determined that plaintiff resisted, but only passively. If so, the "excessive force" charge was irrelevant. Additionally, the court hypothesized that the jury might have concluded that both the officers and the plaintiff had used excessive force. Thus, the conviction did not necessarily lead to the conclusion that the officers had not used excessive force.

Defendant cites a subsequent California case holding that in a prosecution for battery of a police officer (Cal.Pen.Code Sec. 243), or resisting arrest (Sec. 148) a defendant should be acquitted if the officer used excessive force. People v. Olguin, 119 Cal. App. 3d 39, 44-45 (1981). In Olguin, the court concluded that these results were mandated because any arrest made using excessive force was unlawful. Because the arrest was unlawful, defendant's resistance, or even violent response, was not to an official "in the performance of his duties." We need not resolve this apparent conflict between Hernandez and Olguin because defendant has made no showing of the factual basis underlying the conviction, which was entered on a plea of guilty and not after trial. Because defendant here has not shown that the excessive force issue was necessarily resolved in the criminal proceeding, we conclude that the Sec. 69 conviction does not bar plaintiff from bringing an excessive force claim under Sec. 1983.4 

We are required to reverse the summary judgment on the Sec. 1983 claim. In this circumstance, it is the settled law of this Circuit that, "the district court on remand should reexamine its ruling with respect to the exercise of pendent jurisdiction over the state claims." Sun Savings & Loan Ass'n v. Dierdorff, 825 F.2d 187, 189 n. 1 (9th Cir. 1987). See also, e.g., Swanson v. Southern Ore. Credit Serv., Inc., 869 F.2d 1222, 1229 (9th Cir. 1988).


For the foregoing reasons, the judgment is REVERSED and the matter is REMANDED for further proceedings.5 


Honorable A. Wallace Tashima, United States District Judge for the Central District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


That motion was supported by plaintiff's own affidavit, which was the first time plaintiff had offered any evidence in connection with the summary judgment proceeding


In Appellees' Brief on this appeal, Dutra's counsel recounted a version of events far different from plaintiff's. However, counsel provided no citation to the record for this story, and it is unclear from the record whether such evidence was before the district judge. Counsel's presentation of such purported "facts", without citation, is a serious breach of F.R.App.P. 28(a) (3). We note further that the frivolous nature of appellee's argument addressed in Part I, supra, also is a breach of counsel's duty to the court. As we noted in a similar context, counsel is most fortunate that we limit our reproval to this admonition and have not imposed sanctions on her under F.R.App.P. 38. See EEOC v. The Erection Co., No. 89-35131 slip op. at 3096 (9th Cir. Mar. 27, 1990) (Reinhardt, J., concurring in part and dissenting in part)


The document is not authenticated and appears to contain hearsay. This is apparently the source of defendant's version of the facts


For this reason it is also unnecessary to decide whether the first two Ayers factors, discussed supra, have been met in this case


Plaintiff also purports to appeal from Rule 11 sanctions imposed on his counsel. The record is unclear on whether such sanctions were ever imposed. While stating that it was denying the request for sanctions, the court directed plaintiff's counsel to attend a federal practice course. If any sanctions were imposed, in light of the disposition of this appeal, we assume they will be reconsidered by the trial court. See, e.g., Garrett v. City and County of San Francisco, 818 F.2d 1515, 1521 (9th Cir. 1987). Of course, we express no opinion as to how the district judge should resolve the sanctions issue on remand. Id