Johnson v. Gilroy Police Department et al, No. 3:2009cv03946 - Document 32 (N.D. Cal. 2011)
Court Description: ORDER GRANTING MOTION FOR SUMMARY JUDGMENT re 11 . Defendants are entitled to judgment as a matter of law on the merits of the Fourth Amendment claim and on their defense of qualified immunity. Judgment is entered in all defendants' favor and agaist plaintiff. The clerk will close the file. (SI, COURT STAFF) (Filed on 2/4/2011) Modified on 2/4/2011 (ys, COURT STAFF).
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Johnson v. Gilroy Police Department et al Doc. 32 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JEREMY SCOTT JOHNSON, 9 United States District Court For the Northern District of California 10 11 12 13 No. C 09-3946 SI (pr) Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT v. 0GILROY P.D. OFFICERS JESUS CORTES; et al., Defendants. / 14 15 16 17 18 19 INTRODUCTION In this civil rights action under 42 U.S.C. §1983, Jeremy Scott Johnson complains that he was subjected to excessive force during the course of his arrest by officers from the Gilroy Police Department. For the reasons discussed below, defendants' unopposed motion for summary judgment will be granted and judgment will be entered against plaintiff. 20 21 22 23 24 25 26 27 28 BACKGROUND In his verified complaint, Johnson alleged that he had been subjected to excessive force during his arrest on March 27, 2009 by six members of the Gilroy police department: Jesus Cortez, Diana Mora, Geoffrey Guerin, Joseph Deras, Justin Matsuhara, and Rene Arbizu. The following facts are undisputed, unless otherwise noted: Johnson was arrested after 11:30 p.m. on March 27, 2009. Johnson stated in his verified complaint that, when he was arrested, the officers “cuffed me, then assualted (sic) me for 20 minutes, 30 second, in handcuffs. Had broken ankle, and fatal Dockets.Justia.com 1 infection in blood M.R.S.A. Was assaulted by all six officers stated above.” Complaint, p. 4. 2 He also alleged that he broke his right ankle, had bone spurs, had dislocated his left wrist, was 3 punched, had bit his tongue, and had abrasions on his face. Id. 4 Johnson is about 6'4" tall and weighs about 255-260 pounds. He has been diagnosed with 5 bipolar disorder, ADHD, and oppositional defiance disorder. He takes medications for his 6 mental health problems, but did not take his medication for his bipolar disorder on the day of his 7 arrest. He smoked marijuana and crack cocaine that day. On the night of his arrest, Johnson and his wife, Wanda, went to a National Guard 9 Armory in Gilroy that was functioning as a homeless shelter. At the Armory, Johnson went to 10 United States District Court For the Northern District of California 8 the bathroom, purportedly to take a shower. Wanda eventually became concerned about the time 11 he was taking and went into the bathroom, where she accused him of smoking crack cocaine 12 rather than taking a shower. The staff at the shelter responded to the commotion and, after 13 becoming aware of an accusation that Johnson was smoking crack cocaine in the bathroom, 14 informed Wanda that they were going to call the police. Johnson denied smoking crack cocaine 15 in the bathroom, but admitted that Wanda accused him of taking drugs during an argument. 16 When the staff said that police would be summoned, Wanda left and Johnson rushed out of the 17 bathroom after her. 18 Marie Vasquez, who worked at the Armory, perceived Johnson to be very “very rude and 19 very loud,” intimidating, and apparently “under the influence of something.” Docket # 12, at 20 p. 62 (unpaginated Vasquez Deposition). 21 At 11:41 p.m., Gilroy police officers Cortez and Mora were dispatched to the Armory for 22 a report of a verbal disturbance between a man and woman. Officer Cortez approached Johnson 23 as he was standing on the sidewalk in front of the Armory. Johnson appeared agitated to officer 24 Cortez and to bystander Marie Vasquez. Johnston complied with Cortez’s request to be seated. 25 Johnson was visibly irritated because Cortez directed him not to smoke. Officer Mora, who was 26 talking separately with Wanda, advised Cortez that there had been only an argument. Cortez 27 then initially told Johnson that he could leave the area. 28 Officer Cortez then was advised by the Gilroy police department communications office 2 that Johnson was on parole with special parole conditions, one of which was that he could not 1 have contact with Wanda without permission from his parole officer. Johnson knew of this 2 special condition, had not sought or obtained permission for contact, and knew he was in 3 violation of his parole. 4 Cortez informed Johnson that he was being arrested. Johnson argued with Cortez. 5 Johnson was handcuffed after being pushed up against the officer’s vehicle, a police S.U.V. 6 The parties dispute whether his hand was pinned so that he couldn’t voluntarily present it for 7 cuffing, or whether he refused to present it. Johnson was told several times to get into the patrol 8 vehicle and did not do so and instead yelled insults, telling the officers, “‘fuck you pigs. You 9 piece of shit pigs. I’m not going to jail.’” Mora Decl., ¶ 5. United States District Court For the Northern District of California 10 Cortez then pushed Johnson backwards into the back seat area of the vehicle. Johnson 11 landed partially on the floorboard of the back compartment of the vehicle, with his legs and feet 12 outside the door. Cortez instructed him again to get in the vehicle. Johnson refused and resisted 13 by thrashing around, so Cortez administered a chin thrust to push him further into the vehicle. 14 Officer Mora went to the left side of the vehicle where she attempted to pull Johnson into the 15 vehicle while Cortez pushed from the other side. Officer Mora “observed [Johnson] kicking his 16 feet wildly in an attempt to kick Cortez.” Id. at ¶ 6. Mora struck Johnson four times with 17 “distraction strikes” to his left cheek area to get him to stop kicking at Cortez and to distract him 18 so that Cortez could close the door to the vehicle. Id. One of her strikes hit Johnson in the 19 mouth when he turned his face toward her. That strike injured Johnson’s mouth. Johnson 20 continued to thrash about and curse. Mora believed that, if Johnson had the opportunity to get 21 out of the vehicle or if the officers were unable to control him, he would have tried to hurt the 22 officers. Officer Cortez, who was at the foot end of the kicking arrestee, was concerned that 23 Johnson might kick him in the groin and disable him, and possibly overtake officer Mora (who 24 was a foot shorter and more than a hundred pounds lighter than Johnson). Officer Cortez also 25 applied a distraction strike to Johnson. Officer Mora radioed for emergency assistance. 26 Officer Arbizu arrived on the scene and entered the patrol vehicle on the left side. He 27 showed Johnson the electrical current running in the taser, and told Johnson that he would be 28 tased if he did not follow directions. Johnson immediately complied by drawing his feet into the 3 1 vehicle. The doors were then closed, leaving Johnson as the sole occupant in the vehicle. “Once 2 in the backseat of [the] patrol vehicle, Plaintiff began to scream and forcefully kick the right rear 3 passenger side security bars covering the window. Plaintiff kicked the passenger side window 4 approximately four times.” Cortez Decl., ¶ 19. Officer Cortez was concerned that the barefoot 5 Johnson might cut his feet and legs if he broke the window. Johnson demanded to speak with 6 the sergeant. Sergeant Deras came to the vehicle to speak with Johnson. He instructed Johnson to calm 8 down, but Johnson did not. Sergeant Deras told him he would not speak with him because he 9 was not calm. Johnson thrashed around inside the vehicle and kicked at the windows, which 10 United States District Court For the Northern District of California 7 caused the vehicle to rock. He managed to snap a screw that held a security bar in place. 11 Sergeant Deras wasn’t sure whether Johnson was trying to vandalize the vehicle or injure 12 himself, but he could have done both. Deras determined that the WRAP device needed to be 13 applied to protect the police vehicle and to protect Johnson from injuring himself.1 14 Deras asked Johnson to get out of the vehicle. Johnson did not comply, so the officers 15 physically removed him. During that time, Johnson was thrashing and fighting with the officers, 16 as well as cursing and screaming at them. He spit bloody spit on them. A spit mask was placed 17 over his face after at least three attempts.2 He tried to bite an officer, and jerked about to resist 18 efforts to apply the spit mask. Two officers struck Johnson in an attempt to gain compliance. 19 While Johnson was still struggling, officer Guerin tased Johnson, and the WRAP device was 20 finally secured. It took the five officers about 15 minutes to subdue him and apply the WRAP. 21 Even after he was in the WRAP device, he violently slammed his torso into officer Matsuhara 22 and grabbed Matsuhara’s ankle. Matsuhara applied a distraction blow to prevent Johnson from 23 continued efforts to assault him. 24 25 26 27 1 Deras described the WRAP device in his declaration. Deras Decl., pp. 3-4. The WRAP device is put on a handcuffed person and consists of an ankle strap, upper body harness, a leg restraint. Once the WRAP device is properly applied, the subject will be in a seated position, with his legs straight in front of him, and his hands cuffed behind his back. 2 28 Deras described the spit mask in his declaration. Deras Decl., pp. 4, 5. The spit mask is made of light mesh with a soft cloth around the lower portion. It does not impede the subject’s vision or breathing but prevents his spit from traveling more than a couple of inches from his mouth. 4 1 On June 24, 2010, Johnson pled no contest to charges of battery on a peace officer (Cal. 2 Penal Code § 243(b)), threatening a peace officer (Cal. Penal Code § 69), and making terrorist 3 threats (Cal. Penal Code § 422). He was sentenced to a prison term. 4 VENUE AND JURISDICTION 5 6 Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because 7 the events or omissions giving rise to Johnson’s complaint occurred in Monterey County, located 8 in the Northern District. See 28 U.S.C. §§ 84, 1391(b). This Court has federal question 9 jurisdiction over this action under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. United States District Court For the Northern District of California 10 11 LEGAL STANDARD FOR SUMMARY JUDGMENT 12 Summary judgment is proper where the pleadings, discovery, and affidavits show that 13 there is “no genuine issue as to any material fact and [that] the moving party is entitled to 14 judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court will grant summary judgment 15 “against a party who fails to make a showing sufficient to establish the existence of an element 16 essential to that party’s case, and on which that party will bear the burden of proof at trial . . . 17 since a complete failure of proof concerning an essential element of the nonmoving party’s case 18 necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 19 (1986). A fact is material if it might affect the outcome of the suit under governing law, and a 20 dispute about a material fact is genuine “if the evidence is such that a reasonable jury could 21 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 22 (1986). 23 Generally, as is the situation with defendants’ challenge to the Fourth Amendment claim, 24 the moving party bears the initial burden of identifying those portions of the record which 25 demonstrate the absence of a genuine issue of material fact. The burden then shifts to the 26 nonmoving party to “go beyond the pleadings, and by his own affidavits, or by the ‘depositions, 27 answers to interrogatories, or admissions on file,’ designate ‘specific facts showing that there 28 is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (citations omitted). 5 1 Where, as is the situation with defendants' qualified immunity defense, the moving party 2 bears the burden of proof at trial, he must come forward with evidence which would entitle him 3 to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 4 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on 5 each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, 6 Inc., 477 U.S. at 248. When the defendant-movant has come forward with this evidence, the 7 burden shifts to the non-movant to set forth specific facts showing the existence of a genuine 8 issue of fact on the defense. A verified complaint may be used as an opposing affidavit under Rule 56, as long as it 10 United States District Court For the Northern District of California 9 is based on personal knowledge and sets forth specific facts admissible in evidence. See 11 Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s 12 verified complaint as opposing affidavit where, even though verification not in conformity with 13 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, 14 and allegations were not based purely on his belief but on his personal knowledge). Here, the 15 complaint was verified, and therefore is considered as evidence for purposes of deciding the 16 motion.3 17 The court’s function on a summary judgment motion is not to make credibility 18 determinations nor to weigh conflicting evidence with respect to a disputed material fact. See 19 T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The 20 evidence must be viewed in the light most favorable to the nonmoving party, and the inferences 21 to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. Id. 22 at 631. 23 24 25 26 3 Johnson’s complaint, however, has only a very brief description of the incident and omits any mention of what Johnson was doing when defendants used force on him, other than to state 27 that he had handcuffs on him at the time force was used on him. With the liberal construction that is required for pro se pleading, his allegations were sufficient to state a claim, but liberal 28 construction does not work as a substitute for actual evidence when the case has progressed to the summary judgment stage. 6 DISCUSSION 1 2 A. Heck 3 Defendants argue that Johnson’s criminal convictions stemming from the incident require 4 that his action be dismissed under the rule from Heck v. Humphrey, 512 U.S. 477 (1994). Heck 5 held that, in order to recover damages for an allegedly unconstitutional conviction or 6 imprisonment, or for other harm caused by actions whose unlawfulness would render a 7 conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has 8 been reversed or otherwise set aside or called into question. Id. at 486-87. There are two problems with the Heck argument. First, the record is not sufficiently 10 United States District Court For the Northern District of California 9 developed for the court to make the Heck determination. The record here is limited to court 11 minutes from proceedings in which Johnson entered a no-contest plea and was sentenced. From 12 those two documents, the court cannot determine the factual basis for either conviction, and 13 therefore cannot determine that they are incompatible with success on the excessive force claim. 14 For example, a conviction under California Penal Code § 69 may be based on verbal threats or 15 physical violence to deter an officer. It is not at all clear that a conviction based on verbal 16 threats would be inconsistent with an excessive force claim. Thus, it cannot be said that the 17 conviction would be called into question by success on the § 1983 claim. 18 Second, the recent case of Hooper v. County of San Diego, No. 09-55954, slip op. 349, 19 362-63 (9th Cir. Jan. 4, 2011), held that a § 1983 claim for excessive force used during the 20 course of an arrest was not barred by Heck based on the plaintiff’s conviction for resisting that 21 arrest. Although Hooper concerned a conviction under California Penal Code § 148(a)(1), the 22 reasoning of the case leads this court to doubt that Johnson’s convictions under California Penal 23 Code § 69 and § 243 would pose a Heck bar to his excessive force claim. (Defendants are not 24 faulted for not addressing this point because Hooper was issued long after they filed their 25 motion.) The court does not decide the legal question because the record is insufficient to make 26 such a decision. 27 28 7 1 B. Excessive Force Claim The constitutional right at issue when it is alleged that a law enforcement officer used 3 excessive force in the course of an arrest or other seizure is the Fourth Amendment right to be 4 free from "unreasonable . . . seizures." U.S. Const. amend. IV; see Graham v. Connor, 490 U.S. 5 386, 394 (1989). "Determining whether the force used to effect a particular seizure is reasonable 6 under the Fourth Amendment requires a careful balancing of the nature and quality of the 7 intrusion on the individual's Fourth Amendment interests against the countervailing 8 governmental interests at stake." Id. at 396 (citations and internal quotation marks omitted). 9 Because the reasonableness standard is not capable of precise definition or mechanical 10 United States District Court For the Northern District of California 2 application, "its proper application requires careful attention to the facts and circumstances of 11 each particular case, including the severity of the crime at issue, whether the suspect poses an 12 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest 13 or attempting to evade arrest by flight." Id. Courts also consider the “quantum of force used to 14 arrest the plaintiff, [citation], the availability of alternative methods of capturing or detaining the 15 suspect, [citation], and the plaintiff’s mental and emotional state [citation].” Luchtel v. 16 Hagemann, 623 F.3d 975, 980 (9th Cir. 2010). 17 The reasonableness inquiry in excessive force cases is an objective one, the question 18 being whether the officer's actions are objectively reasonable in light of the facts and 19 circumstances confronting him, without regard to his underlying intent or motivation and 20 without the "20/20 vision of hindsight." Graham, 490 U.S. at 396. This analysis applies to any 21 arrest situation where force is used, whether it involves physical restraint, use of a baton, use of 22 a gun, or use of a dog. Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994). 23 Defendants acknowledge that they did use force on Johnson and did so while he was in 24 handcuffs, but describe it as a measured response to a physically resisting arrestee. Under the 25 totality of circumstances, and viewing the evidence in the light most favorable to Johnson, the 26 defendants’ use of force – pushing Johnson into the police vehicle, striking him about ten times, 27 and tasing him once -- in arresting him was reasonable. Considering the various factors 28 identified by Graham, the court concludes as a matter of law that the force used was not 8 1 excessive. 2 Severity of the crime: Johnson’s offense was not particularly serious. Johnson was 3 arrested because he was in violation of a parole condition that required him not to be in contact 4 with Wanda. Immediacy of threat to the safety of officers or others: Although he was in handcuffs, 6 Johnson posed an immediate threat to the safety of the officers. When he was partially in the 7 vehicle, he was trying to kick officer Cortez in the abdomen and groin. Had he succeeded in 8 disabling officer Cortez with one of his kicks, he also would have posed a danger to officer 9 Mora, who was much smaller than Johnson. Johnson also posed a danger to the officers when 10 United States District Court For the Northern District of California 5 they were trying to put the WRAP device and spit mask on him, as he thrashed about and spit 11 at them. And Johnson threw his body weight at and grabbed at officer Matsuhara’s ankle even 12 after the WRAP device had mostly immobilized him. He also was trying to do property damage 13 to the police vehicle. 14 15 Active resistance to arrest: The undisputed evidence shows that Johnson was actively resisting efforts to complete the arrest and transport him to the police department. 16 Quantum of force used: The force used consisted of Johnson being pushed into the 17 vehicle, being struck by the hand of several different officers approximately ten times, and being 18 tased once. This force was used during a 15-20 minute period.4 Officer Cortez shoved Johnson 19 against the vehicle to handcuff him, but Johnson did not contend this was excessive; it does not 20 appear the shove caused any injury or was constitutionally significant. After Johnson was 21 handcuffed, officer Cortez pushed Johnson into the back seat area of the police vehicle, but only 22 after he refused repeated commands to get into the vehicle. Officer Cortez struck Johnson twice 23 and Mora struck him four times, but only after he refused their repeated commands to get all the 24 way into the police vehicle and continued to thrash about and was trying to kick Cortez. Once 25 he got all the way into the police vehicle (upon being informed that he would be tased if he did 26 27 4 28 Johnson stated in his complaint that the events took 20 minutes, and defendants state that the events took about 15 minutes. The 5-minute difference is not material; the important point is that this was prolonged resistance by an arrestee. 9 not) and the doors were shut, Johnson began screaming and kicking at the window with his bare 2 foot. Sergeant Deras was uncertain whether Johnson was trying to inflict property damage or 3 to injure himself, but both were possible, and Deras decided that Johnson needed to be 4 immobilized with the police department’s WRAP device. When Johnson was asked to get out 5 of the vehicle, he refused, and was physically removed. He continued thrashing and fighting 6 with the officers, as well as spewing bloody spit on them. Two officers struck Johnson in an 7 attempt to gain compliance with their orders, and officer Guerin used the taser once on Johnson 8 so that the WRAP device and a spit mask could be put on him. Johnson suffered some abrasions 9 during the scuffle when they put the WRAP device on him. Even after Johnson was in the 10 United States District Court For the Northern District of California 1 WRAP device, he continued resisting, as he slammed his immobilized torso at officer Matsuhara 11 and grabbed at Matsuhara’s ankle. Matsuhara then struck Johnson to prevent continued 12 assaultive efforts by Johnson. Each time Johnson was struck by a defendant, he was violently 13 struggling against defendants’ efforts to get him completely into the vehicle or violently 14 struggling against defendants’ efforts to put restraining devices on him. 15 Injuries: The evidence of any injuries is weak: Johnson alleged a variety of ailments in 16 his complaint, but provided no medical records in support of his assertions and provided no 17 evidence that the injuries stemmed from any particular defendant's actions as opposed to his 18 violent efforts to resist the deputies. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 19 912, 922 (9th Cir. 2001) (allegations of injury without medical records or other evidence of 20 injury insufficient to establish excessive force claim under 4th Amendment). 21 Efforts to temper use of force: The police officers attempted to temper the severity of 22 their response by giving Johnson numerous oral commands to stop fighting and to comply with 23 their orders to settle down before using force on him. No force was used that was not preceded 24 by and responsive to Johnson’s resistant behavior. 25 One might argue that there are alternative ways to deal with an arrestee thrashing around 26 in the back of a police vehicle. But that kind of leisurely second-guessing ignores the directive 27 to analyze the force making "allowance for the fact that police officers are often forced to make 28 split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about 10 the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397. Doing 2 so, this court concludes that no reasonable jury could find that defendants applied an excessive 3 amount of force during the arrest of Johnson. See, e.g., Brooks v. City of Seattle, 599 F.3d 1018, 4 1030-31 (9th Cir. 2010) (officers entitled to judgment in case presenting a less-than-intermediate 5 use of force (i.e., tasing a pregnant woman three times), which was “prefaced by warnings and 6 other attempts to obtain compliance, against a suspect accused of a minor crime, but actively 7 resisting arrest, out of police control, and posing some slight threat to officers”); Drummond v. 8 City of Anaheim, 343 F.3d 1052, 1058-60 (9th Cir. 2003) (although some force was justified in 9 restraining mentally ill individual so he could not injure himself or the officers, once he was 10 United States District Court For the Northern District of California 1 handcuffed and lying on the ground without offering resistance, two officers who knelt on him 11 pressed their weight against his torso and neck despite his pleas for air used constitutionally 12 excessive force); Miller v. Clark County, 340 F.3d 959, 963-68 (9th Cir. 2003) (use of trained 13 police dog to “bite and hold” suspect until officers arrived on the scene less than a minute later 14 does not constitute unreasonable excessive force under 4th Amendment when suspect poses 15 immediate threat to officers’ safety, several attempts to arrest suspect with less forceful means 16 are unsuccessful as a result of suspect’s defiance, and use of police dog is well-suited to task of 17 safely arresting suspect). Johnson has failed to establish a triable issue of fact as to whether he 18 was subjected to excessive force by defendants. Defendants are entitled to judgment as a matter 19 of law on the Fourth Amendment claim. 20 21 C. Qualified Immunity 22 The defense of qualified immunity protects “government officials . . . from liability for 23 civil damages insofar as their conduct does not violate clearly established statutory or 24 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 25 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth 26 a two-pronged test to determine whether qualified immunity exists. The threshold question is: 27 "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the 28 officer's conduct violated a constitutional right?" Id. at 201. If no constitutional right was 11 violated if the facts were as alleged, the inquiry ends and defendants prevail. See id. If, 2 however, "a violation could be made out on a favorable view of the parties' submissions, the 3 next, sequential step is to ask whether the right was clearly established. . . . 'The contours of the 4 right must be sufficiently clear that a reasonable official would understand that what he is doing 5 violates that right.' . . . The relevant, dispositive inquiry in determining whether a right is clearly 6 established is whether it would be clear to a reasonable officer that his conduct was unlawful in 7 the situation he confronted." Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 8 (1987)). Although Saucier required courts to address the questions in the particular sequence 9 set out above, courts now have the discretion to decide which prong to address first, in light of 10 United States District Court For the Northern District of California 1 the particular circumstances of each case. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). 11 As shown in the preceding section, the evidence in the record does not establish a 12 violation of Johnson's Fourth Amendment rights. Defendants prevail on the first step of the 13 Saucier analysis, so the court need not proceed to the second step of the Saucier analysis. 14 Defendants are entitled to judgment as a matter of law on the qualified immunity defense. 15 16 CONCLUSION 17 For the foregoing reasons, defendants' motion for summary judgment is GRANTED. 18 (Docket # 11.) Defendants are entitled to judgment as a matter of law on the merits of the 19 Fourth Amendment claim and on their defense of qualified immunity. Judgment will be entered 20 in all defendants' favor and against plaintiff. The clerk will close the file. 21 22 IT IS SO ORDERED. Dated: February 4, 2011 _______________________ SUSAN ILLSTON United States District Judge 23 24 25 26 27 28 12
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