Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

ORDER and MEMORANDUM^** 

The petition for rehearing of appellants John Burgess and Sheriff Robert Winter is GRANTED as to Sheriff Winter and DENIED as to Deputy Burgess. The disposition filed April 27, 1990 is withdrawn. The attached memorandum is filed in its place.

Robert Winter, former Sheriff of Santa Clara County, Deputy John Burgess, and Officers Michael Flood, Ronald Karrle, and Gary Peterson, appeal from the district court's denial of their motion for summary judgment on the ground that they are entitled to qualified immunity from Mitchell's 42 U.S.C. § 1983 suit against them for excessive force. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); DiMartini v. Ferrin, 889 F.2d 922, 924 (9th Cir. 1989) (an order denying qualified immunity in a section 1983 action for damages is immediately appealable under the collateral order doctrine). We review de novo, White By White v. Pierce County, 797 F.2d 812, 814 (9th Cir. 1986), and affirm in part and reverse in part.

The undisputed facts in this case involve Mitchell's apprehension by Santa Clara County deputies on August 10, 1987. Mitchell was found by the officers slumped over the wheel of his truck. The officers smelled what they believed was alcohol and arrested Mitchell for being drunk in public.

The disputed facts involve Mitchell's claim that he was not drinking alcohol, but was in fact a diabetic and had suffered a diabetic attack. Mitchell claims that the deputies who arrested him ignored his repeated requests for fruit and orange juice, with the remark that they "were not running a Denny's." Mitchell also alleges that en route to the Sheriff's station he asked the deputies to remove his handcuffs because they were digging into his wrists. The deputies removed his handcuffs at the station and allegedly told Mitchell to keep his hands at his sides. On appeal, Mitchell denies that he was so instructed, and states that he instinctively began shaking his hands to restore his circulation. At that point, Mitchell alleges that a number of deputies suddenly grabbed him, threw him to the ground, and assaulted and battered him resulting in his serious injury. Appellants assert that they believed Mitchell's hand movements to be hostile, and acted reasonably in response to the perceived threat.

Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate "clearly established" statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, a defense of qualified immunity should ordinarily fail where the law is clearly established because a reasonably competent public official should know the law governing his conduct. Id. at 818-19. In an interlocutory appeal from a denial of a motion for summary judgment on qualified immunity, this court's inquiry is limited to deciding whether the legal norms allegedly violated were clearly established at the time of the challenged actions. See Manhattan Beach Police Officers v. Manhattan Beach, 881 F.2d 816, 818 (9th Cir. 1989 (citation omitted).

In order to withstand a motion for summary judgment, the non-moving party must show that there are " 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.' " California Arch Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987) (citation omitted). "Rule 56(c) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves...." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Rule 56(c) therefore requires "that the non-moving party go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id.

Sheriff Winter contends that summary judgment must be granted as a matter of law because he had no personal involvement in Mitchell's arrest and detention and Mitchell presented "no evidence to the contrary." We agree.

In his declaration in support of summary judgment, Sheriff Winter testified that he had no personal involvement in the arrest and detention of Mitchell, and that in fact, he was unaware of Mitchell's arrest until after his release. Mitchell's testimony regarding the alleged assault and battery does not contain references to particular defendants.¹  He states that "someone grabbed" him, that he was picked up above "their heads," and then "several of them" carried him to another place. He also stated that his head was slammed down to the concrete and "it felt like somebody either had their foot on my head at the same time they was [sic] pulling my arms back." He does not mention Sheriff Winter specifically.

Because Winter testified that he was not present during the incident, Mitchell's testimony in his declaration as to the actions of the defendants generally, does not appear to designate the "specific facts" required to show that there is a genuine issue for trial as to Sheriff Winter on the claim of excessive force. See Celotex, 477 U.S. at 324. Mitchell's general statements in his deposition are insufficient to oppose Sheriff Winter's motion for summary judgment. See id. Thus, the district court should have granted his motion for summary judgment. Accordingly, we reverse the district court's order as to Sheriff Winter.

The remaining defendants-appellants, officers Flood, Karrle and Peterson and Deputy Burgess,²  all admit they were present at the alleged assault and battery. As to these defendants, Mitchell has shown that there are genuine factual issues regarding the use of force that properly could be resolved in favor of either party. See California Arch. Bldg. Prod., 818 F.2d at 1468. These issues are what Mitchell did with his hands when and if told to leave them at his sides, and whether the reaction by the deputies involved excessive force.

Moreover, at the time of the challenged action, there were clearly established rights concerning the issue of excessive force. See White, 797 F.2d at 816. The use of excessive force by police officers in an arrest violates the arrestee's fourth amendment right to be free from unreasonable seizure. Id. (citation omitted). If Mitchell's claim of excessive force is proven, his clearly established fourth amendment rights were violated. See id. Thus, a defense of qualified immunity should fail. See Harlow, 457 U.S. at 818. However, the facts regarding Mitchell's claim of excessive force are still in dispute. The question of the reasonableness or excessiveness of force used in an arrest is usually a question for the jury. See White, 797 F.2d at 816. As to these defendants-appellants the district court properly denied the motion for summary judgment on the issue of excessive force.

AFFIRMED IN PART and REVERSED IN PART.