James v. Puga et al, No. 3:2010cv04009 - Document 37 (N.D. Cal. 2012)
Court Description: ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT 27 28 (Illston, Susan) (Filed on 5/23/2012)
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James v. Puga et al Doc. 37 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DENNIS LAMAR JAMES, JR., 9 United States District Court For the Northern District of California 10 11 12 13 14 No. C 10-4009 SI (pr) Plaintiff, ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT v. HAYWARD POLICE DEPT.; et al., Defendants. / INTRODUCTION 15 In this civil rights action under 42 U.S.C. §1983, Dennis Lamar James, Jr., complains that 16 he was subjected to unreasonable searches, false arrests and excessive force by officers from the 17 Hayward Police Department. For the reasons discussed below, defendants’ unopposed motions 18 for summary judgment will be granted and judgment will be entered against plaintiff. 19 20 BACKGROUND 21 In his amended complaint, James alleged that he had been subjected to unreasonable 22 searches, false arrests and excessive force on July 27, 2009 and February 17, 2010, by members 23 of the Hayward Police Department (“HPD”): Green, Javier, Puga and McGilboney. The Court 24 found cognizable James’ claims against defendant Hayward police chief Ron Ace for the 25 unconstitutional acts of his subordinates which were allegedly done “with the knowledge and 26 consent... or were thereafter approved by” defendant Ace. 27 Furthermore, the Court found that the allegations, liberally construed, were sufficient to state a 28 municipal liability claim against the City of Hayward, the HPD, and the County of Alameda for Amended Complaint, p. 5. Dockets.Justia.com 1 the Fourth Amendment and malicious prosecution claims. The following facts are undisputed, unless otherwise noted: 2 3 4 A. July 27, 2009 Incident According to the amended complaint, James was walking in the city of Hayward with two 6 African American citizens when he was detained by HPD officers. James alleged that once he 7 was detained, he was hit on the head with a baton by officer Green, and then physically assaulted 8 by officers Green and Javier with batons, hands and feet. James was injured. Amended 9 Complaint, p. 4-5. James was arrested and searched, and booked at the Hayward City Jail. 10 United States District Court For the Northern District of California 5 James alleges that defendants did not have a warrant to search or arrest him. Id. James was 11 charged with a violation of California Health & Safety Code § 11351 (possession or purchase 12 for sale of a controlled substance). Id. at 6. The district attorney’s office filed charges against 13 James. James claims that he later filed a motion to suppress which was granted, and that he was 14 “discharged.” Id. 15 On the day of the incident, officers Javier and Green were patrolling the area near 27505 16 Tampa Avenue in the City of Hayward, which is documented by police reports and citizens 17 complaints as an area where illegal narcotics, such as cocaine, methamphetamine, and marijuana, 18 are commonly sold and used. Javier Decl., ¶ 4; Green Decl., ¶ 3. Defendant Javier had observed 19 numerous hand-to-hand illegal narcotics transactions in this area. Javier Decl., ¶ 3. 20 At about 10:30 p.m., when James claims he was walking in this area with two African 21 American citizens, defendants Javier and Green observed James speak to a male suspect (“S2"). 22 James used his right hand to place a small object that he had cupped into the hand of S2. As S2 23 received the item from James in his left hand, S2 used his right hand to pass an item to James. 24 Based on their training and experience with respect to illegal narcotics transactions, the location, 25 and their observations, Javier and Green believed that James and S2 had engaged in a hand-to- 26 hand illegal narcotics transaction. Javier Decl., ¶¶ 2-5; Green Decl., ¶¶ 2-4. 27 Defendants exited the patrol car, and commanded the suspects to stop. James, his 28 companions, and S2 ran in opposite directions. Because James was the person who initiated the 2 observed hand-to-hand transaction and was the person most likely holding illegal narcotics, 1 defendants pursued James. Defendants repeatedly told James to stop fleeing. As James 2 continued to flee on foot, he looked back to check the progress of the officers in pursuit, lost his 3 balance, and fell face first on the street. Javier Decl., ¶¶ 9-11; Green Decl., ¶¶ 5-7. As James attempted to get up, defendants moved in to physically control him. James hid 5 his arms underneath his body in an effort to thwart the defendants’ efforts to take him into 6 custody. When defendants commanded James to give them his hands, he did not comply and 7 instead flailed his body. Defendants delivered knee strikes to James’ body to cause him to move 8 his arms out from underneath his body. When James moved his arms from underneath his body, 9 defendants got a hold of his hands and then pinned his head area and upper body to prevent any 10 United States District Court For the Northern District of California 4 further flailing. Ultimately, they secured James in handcuffs. Javier Decl., ¶¶ 2-16; Green 11 Decl., ¶¶ 2-12. 12 Defendants did not have a warrant to search or arrest James. However, they determined 13 that James was on active parole related to a felony conviction for a violation of California Penal 14 Code § 245(A)(2) (assault with a deadly weapon (firearm) on a person). Green Decl., ¶ 11. 15 Incident to his arrest, defendants searched James and recovered a .20 gram (gross weight) rock 16 of cocaine, and $524.00 in cash. Javier Decl., ¶¶ 14-16; Green Decl., ¶¶ 10-12. 17 James was taken into custody for violations of California Penal Code § 3056 (violation 18 of parole), § 148 (resisting, delaying, or obstructing officer), and Health & Safety Code § 11350 19 (possession of controlled substance) and § 11352 (transportation/sale of controlled substance). 20 Javier Decl., ¶¶ 15-16; Green Decl., ¶¶ 11-12. James was ultimately charged with a felony count 21 for violation of Health & Safety Code § 11350(a) with an enhancement for the following: (1) 22 a first prior conviction on January 23, 2005 for a felony violation of Penal Code § 12021(a)(1) 23 (possession of firearm by a felon); and (2) a second prior conviction on January 24, 2005 for 24 felony violation of Penal Code § 245(a)(2) (assault with a firearm). Hom Decl. 25 26 B. February 17, 2010 Incident 27 On February 17, 2010, James was in a car that was pulled over by Hayward police 28 officers Puga and McGilboney for a traffic stop. According to the amended complaint, 3 1 defendants had no search or arrest warrant, and they “stopped, detained and physically 2 assualted” James solely because of his race. Id. at 7-8. James alleged that he was assaulted 3 “with Taser gun, baton, and hands” until an ambulance was called to take him to the hospital. 4 Id. at 8. James was arrested and charged with numerous violations, but he claims all charges 5 were dismissed in or about May 2010. At about 1:59 a.m. on February 17, 2010, James was in a car that was pulled over by 7 defendants Puga and McGilboney for a traffic stop, because the car displayed an expired vehicle 8 registration tag. Puga Decl., ¶¶ 2-4. As Puga approached the vehicle, he recognized the odor 9 of marijuana emanating from the car, which was driven by Annie Shears. Shears admitted to 10 United States District Court For the Northern District of California 6 Puga that they had just smoked marijuana and the remains were in the ashtray. Puga did a record 11 check of James which revealed that James had prior arrests for guns, drugs, and resisting arrest. 12 Id. at ¶¶ 5-7. James told Puga that he was on active California Department of Corrections 13 parole. After James complied with Puga’s request to step out of the car to perform a parole 14 search, McGilboney observed what appeared to be a baggy of powder cocaine, in plain view, 15 on the car seat where James had been seated. McGilboney signaled to Puga to handcuff James. 16 After Puga had clasped only one handcuff, the unsearched James suddenly jumped back into the 17 unsearched car. James grabbed the baggy of powder cocaine and placed it in his mouth. Puga 18 commanded James to spit out the baggy, but James did not comply. Puga used pressure on 19 James’ temporomandibular nerve (“TMJ”) to prevent James from swallowing the baggy. James 20 physically struggled with the officers, swallowed the baggy and bit Puga. McGilboney 21 commanded James to stop fighting but he did not comply. McGilboney issued a warning and 22 deployed his taser on James using a drive stun mode, but the taser had no physical effect on 23 James, who continued to disregard the defendants’ commands to stop fighting. McGilboney 24 pulled James out of the car. Puga delivered knee strikes in an attempt to gain physical control 25 of James. McGilboney delivered baton strikes to James. Ultimately, defendants’ use of pain 26 compliance techniques allowed them to successfully complete handcuffing James. Puga Decl., 27 ¶¶ 2-34; McGilboney Decl., ¶¶ 2-20. 28 James was charged with a felony count for violating Penal Code § 69 (resisting an 4 officer), a misdemeanor count for violating Penal Code § 135 (destroying evidence), and a 2 misdemeanor count for violating Penal Code § 243(b) (battery on officer) with enhancements 3 for the following: (1) a first prior conviction on January 24, 2005 for a felony violation of Penal 4 Code § 245(a)(2) (assault with a firearm); (2) a second prior conviction on January 23, 2005 for 5 a felony violation of Penal Code § 12021(a) (possession of firearm by a felon); (3) a third prior 6 conviction on January 23, 2005 for a felony violation of Penal Code § 245(b) (assault with a 7 semiautomatic firearm); (4) a fourth prior conviction on October 22, 1999 for a felony violation 8 of Arizona Penal Code § 187(a) (murder); (5) a fifth prior conviction on October 22, 1999 for 9 a felony violation of Arizona Health & Safety Code § 11377(a) (possession of controlled 10 United States District Court For the Northern District of California 1 substance); and (6) a sixth prior conviction on May 4, 1993 for a felony violation of Arizona 11 Health & Safety Code § 11350(a) (possession of controlled substance). Hom Decl.; Scheingart 12 Decl. 13 14 VENUE AND JURISDICTION 15 Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because 16 the events or omissions giving rise to Johnson’s complaint occurred in Alameda County, located 17 in the Northern District. See 28 U.S.C. §§ 84, 1391(b). This Court has federal question 18 jurisdiction over this action under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. 19 20 LEGAL STANDARD FOR SUMMARY JUDGMENT 21 Summary judgment is proper where the pleadings, discovery, and affidavits show that 22 there is “no genuine issue as to any material fact and [that] the moving party is entitled to 23 judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court will grant summary judgment 24 “against a party who fails to make a showing sufficient to establish the existence of an element 25 essential to that party’s case, and on which that party will bear the burden of proof at trial . . . 26 since a complete failure of proof concerning an essential element of the nonmoving party’s case 27 necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 28 (1986). A fact is material if it might affect the outcome of the suit under governing law, and a 5 1 dispute about a material fact is genuine “if the evidence is such that a reasonable jury could 2 return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 3 (1986). 4 Generally, as is the situation with defendants’ challenge to the Fourth Amendment claim, 5 the moving party bears the initial burden of identifying those portions of the record which 6 demonstrate the absence of a genuine issue of material fact. The burden then shifts to the 7 nonmoving party to “go beyond the pleadings, and by his own affidavits, or by the ‘depositions, 8 answers to interrogatories, or admissions on file,’ designate ‘specific facts showing that there 9 is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (citations omitted). United States District Court For the Northern District of California 10 Where, as is the situation with defendants’ qualified immunity defense, the moving party 11 bears the burden of proof at trial, he must come forward with evidence which would entitle him 12 to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 13 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on 14 each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, 15 Inc., 477 U.S. at 248. When the defendant-movant has come forward with this evidence, the 16 burden shifts to the non-movant to set forth specific facts showing the existence of a genuine 17 issue of fact on the defense. 18 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it 19 is based on personal knowledge and sets forth specific facts admissible in evidence. See 20 Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s 21 verified complaint as opposing affidavit where, even though verification not in conformity with 22 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, 23 and allegations were not based purely on his belief but on his personal knowledge). Here, the 24 amended complaint was not verified, and therefore will not be considered as evidence for 25 purposes of deciding the motion.1 26 27 1 James’ amended complaint has only a very brief description of the incident and omits any mention of what James was doing when defendants used force on him. With the liberal 28 construction that is required for pro se pleading, his allegations were sufficient to state a claim, but liberal construction does not work as a substitute for actual evidence when the case has 6 1 The court’s function on a summary judgment motion is not to make credibility 2 determinations nor to weigh conflicting evidence with respect to a disputed material fact. See 3 T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The 4 evidence must be viewed in the light most favorable to the nonmoving party, and the inferences 5 to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. Id. 6 at 631. 7 8 9 DISCUSSION A. Unlawful Search and False Arrest Claims United States District Court For the Northern District of California 10 The Fourth Amendment proscribes “unreasonable searches and seizures.” U.S. Const. 11 amend. IV; Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995); Franklin v. Foxworth, 12 31 F.3d 873, 875 (9th Cir. 1994). The ultimate test of reasonableness requires the court to 13 balance the governmental interest that justifies the intrusion and the level of intrusion into the 14 privacy of the individual. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th 15 Cir. 1996). State law is irrelevant in this calculus. See Virginia v. Moore, 553 U.S. 164, 172 16 (2008) (no 4th Amendment violation where arrest was based on probable cause, but state law 17 called for issuance of a citation rather than arresting the suspect); see, e.g., Edgerly v. City and 18 County of San Francisco, 599 F.3d 946, 956 (9th Cir. 2010) (§ 1983 wrongful arrest claim 19 properly rejected because arrest was constitutional in that probable cause existed, even though 20 state law required cite-and-release rather than a custodial arrest under the circumstances); id. at 21 957 n.15 (constitutionality of search, like an arrest, is based on probable cause and without 22 regard to state law restrictions). 23 In order to claim the protection of the Fourth Amendment, one must “demonstrate that 24 he personally has an expectation of privacy in the place searched, and that his expectation is 25 reasonable; i.e., one which has ‘a source outside of the Fourth Amendment, either by reference 26 to concepts of real or personal property law or to understandings that are recognized and 27 28 progressed to the summary judgment stage. 7 1 permitted by society.’” Minnesota v. Carter, 525 U.S. 83, 88 (1998) (citation omitted). The existence of probable cause is a major factor in determining the reasonableness of 3 a search or seizure. See Allen, 73 F.3d at 235 (warrantless arrest); United States v. Dunn, 935 4 F.2d 1053, 1057 (9th Cir.) (warrantless search of automobile), cert. denied, 502 U.S. 950 (1991); 5 see, e.g., Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (officers with probable cause to 6 search a car may inspect passengers’ belongings in the car that are capable of concealing the 7 object of the search). Probable cause means “more than a bare suspicion; it exists when the 8 officer’s knowledge of reasonably trustworthy information is sufficient to warrant a prudent 9 person to believe that an offense has been or is being committed.” Graves v. City of Coeur 10 United States District Court For the Northern District of California 2 D’Alene, 339 F.3d 828, 841 (9th Cir. 2003) (citing Brinegar v. United States, 338 U.S. 160, 175- 11 76 (1949)). Probable cause also exists when the facts available to the officer would “warrant a 12 man of reasonable caution in the belief . . . that certain items may be contraband or stolen 13 property or useful as evidence of a crime”; it does not demand any showing that such a belief 14 be correct or more likely true than false. Dunn, 935 F.2d at 1057 (quoting Texas v. Brown, 460 15 U.S. 730, 742 (1983)) (internal citation and quotation marks omitted). Cf. United States v. 16 Knights, 534 U.S. 112, 119-22 (2001) (no Fourth Amendment violation in case of warrantless 17 search of probationer’s residence, where search was based only on reasonable suspicion but not 18 probable cause). Sufficient probability, not certainty, is the touchstone of reasonableness under 19 the Fourth Amendment. Meek, 366 F.3d at 713 (citing Illinois v. Rodriguez, 497 U.S. 177, 185 20 (1990)) (search warrant); see also United States v. Brooks, 367 F.3d 1128, 1134 (9th Cir. 2004) 21 (finding probable cause existed for officer’s entry into hotel room based upon expressed 22 concerns of the guest next door in 911 call, which were corroborated by defendant’s statements 23 and the facts observed by the officer). 24 The Fourth Amendment also requires that an arrest be supported by probable cause. 25 Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); Michigan v. Summers, 452 U.S. 692, 26 700 (1981) (an arrest is unlawful unless there is probable cause to support it). An arrest is 27 supported by probable cause if, under the totality of the circumstances known to the arresting 28 officer, a prudent person would have concluded that there was a fair probability that the 8 1 defendant had committed a crime. Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010); 2 Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004); Grant v. City of Long Beach, 3 315 F.3d 1081, 1085 (9th Cir. 2002). “[P]robable cause is a fluid concept – turning on the 4 assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced 5 to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). 6 1. 8 Defendants first argue that James was not subjected to an unlawful seizure because he 9 fled the scene. Mot. at 10. They also assert that even if the Court concludes that James was 10 United States District Court For the Northern District of California 7 detained, the detention was justified because the defendants had a reasonable suspicion that 11 James was involved in criminal activity. Id. July 27, 2009 Incident 12 The undisputed evidence shows that on the day of the incident, defendants Javier and 13 Green were patrolling an area that was documented by police reports and citizens complaints as 14 an area where illegal narcotics, such as cocaine, methamphetamine, and marijuana, are 15 commonly sold and used. Javier Decl., ¶ 4; Green Decl., ¶ 3. Furthermore, defendant Javier had 16 personally observed numerous hand-to-hand illegal narcotics transactions in that area. Javier 17 Decl., ¶ 3. Defendants Javier and Green observed James speak to a male suspect and engage in 18 a surreptitious exchange of items. See supra at 2. Based on their training and experience with 19 respect to illegal narcotics transactions, the location, and their observations, defendants had a 20 reasonable suspicion to investigate a potential hand-to-hand illegal narcotics transaction. Mot. 21 at 12. 22 Furthermore, James’ refusal to obey the officers’ orders to stop when he fled the scene 23 and continued resistance after he fell to the ground constituted probable cause for violating state 24 regulations prohibiting physical resistance, hiding, or running away from a police officer. See 25 Cal. Penal Code §§ 69, 148. In addition, the fact that defendants had personally witnessed what 26 to a prudent person would have appeared to be an illicit narcotics sale and then James’ 27 immediate flight was sufficient for the defendants to believe that an offense had been committed. 28 See Graves, 339 F.3d at 841. Lastly, since the arrest was based on probable cause, the search 9 1 of James incident to his arrest was also valid. See Chimel v. California, 395 U.S. 752, 763 2 (1969). 3 James has failed to establish a triable issue of fact as to whether he was subjected to an 4 unreasonable search and seizure and false arrest by defendants. Defendants are entitled to 5 judgment as a matter of law on this Fourth Amendment claim. 6 2. 8 According to Defendants, under California law an expired registration tag on the rear 9 license plate of a car gives police reasonable suspicion that the driver has violated California 10 United States District Court For the Northern District of California 7 Vehicle Code §4000(a).2 Mot. at 13. The undisputed evidence shows that defendants Puga and 11 McGilboney made a lawful traffic stop of the car in which James was a passenger based on 12 reasonable suspicion that the driver had failed to register the car and pay the required fees as 13 indicated by the expired vehicle registration tag. See supra at 4. February 17, 2010 Incident 14 Furthermore, the Ninth Circuit has held that detection of marijuana odor emanating from 15 a vehicle is sufficient in certain “investigatory” situations to give rise to probable cause. See 16 United States v. Garcia-Rodriguez, 558 F.2d 956, 964 (9th Cir. 1977); United States v. Russell, 17 546 F.2d 839, 840(9th Cir. 1976); United States v, Laird, 511 F.2d 1039, 1039-40 (9th Cir. 18 1975); United States v. Ojeda-Rodriguez, 502 F.2d 560-561 (9th Cir. 1974). Here, the 19 undisputed evidence shows that as defendant Puga approached the vehicle, he recognized the 20 odor of marijuana emanating from the car. See supra at 4. Moreover, the driver, Annie Shears, 21 admitted to Puga that they had just smoked marijuana, the remains of which were in the ashtray. 22 Id. These facts were sufficient to establish probable cause for the defendants to perform a 23 warrantless search of the car based on their believe that the vehicle contained contraband. See 24 United States v. Ross, 456 U.S. 798, 824 (1925). However, even before performing a search, 25 26 2 27 28 California Vehicle Code §4000 (a) requires that all vehicles being driven, parked, moved or left standing upon a highway, or in an off street parking facility must be registered and fees paid to DMV. California Department of Motor Vehicles, http://www.dmv.ca.gov/dl/authority.htm (last visited May 1, 2012). 10 Puga did a record check of James which revealed that James had prior arrests for guns, drugs, 2 and resisting arrest. See supra at 4. When questioned, James admitted to Puga that he was on 3 active California Department of Corrections parole. Id. This fact alone was sufficient to permit 4 defendants to perform a search of James pursuant to California Penal Code § 3067(a).3 Lastly, 5 James did not object when Puga requested that he step out the car to perform a parole search, and 6 he did in fact proceed to do so. See supra at 4. It was then that McGilboney observed what 7 appeared to be a baggy of powder cocaine, in plain view, on the car seat where James had been 8 seated. Id. Based on this observation and James’ parole status, defendants had probable cause 9 to believe that a criminal activity was taking place. See Graves, 339 F.3d at 841. Accordingly, 10 United States District Court For the Northern District of California 1 defendants did not violate James’ Fourth Amendment right against unreasonable search and 11 seizure because their search of his person and the vehicle were based on probable cause. Nor 12 was the arrest unlawful because it was also supported by probable cause. See Luchtel, 623 F.3d 13 at 980. 14 James has failed to establish a triable issue of fact as to whether he was subjected to an 15 unreasonable search and seizure and false arrest by defendants. Defendants are entitled to 16 judgment as a matter of law on this Fourth Amendment claim. 17 18 B. Excessive Force Claim 19 The constitutional right at issue when it is alleged that a law enforcement officer used 20 excessive force in the course of an arrest or other seizure is the Fourth Amendment right to be 21 free from “unreasonable . . . seizures.” U.S. Const. amend. IV; see Graham v. Connor, 490 U.S. 22 386, 394 (1989). “Determining whether the force used to effect a particular seizure is reasonable 23 under the Fourth Amendment requires a careful balancing of the nature and quality of the 24 intrusion on the individual’s Fourth Amendment interests against the countervailing 25 26 27 28 3 California Penal Code § 3067(a) provides the following: “Any inmate who is eligible for release on parole pursuant to this chapter or postrelease community supervision pursuant to Title 2.05 (commencing with Section 3450) of Part 3 shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” 11 1 governmental interests at stake.” Id. at 396 (citations and internal quotation marks omitted). 2 Because the reasonableness standard is not capable of precise definition or mechanical 3 application, “its proper application requires careful attention to the facts and circumstances of 4 each particular case, including the severity of the crime at issue, whether the suspect poses an 5 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest 6 or attempting to evade arrest by flight.” Id. Courts also consider the “quantum of force used to 7 arrest the plaintiff, [citation], the availability of alternative methods of capturing or detaining the 8 suspect, [citation], and the plaintiff’s mental and emotional state [citation].” Luchtel v. 9 Hagemann, 623 F.3d 975, 980 (9th Cir. 2010). United States District Court For the Northern District of California 10 The reasonableness inquiry in excessive force cases is an objective one, the question 11 being whether the officer’s actions are objectively reasonable in light of the facts and 12 circumstances confronting him, without regard to his underlying intent or motivation and 13 without the “20/20 vision of hindsight.” Graham, 490 U.S. at 396. This analysis applies to any 14 arrest situation where force is used, whether it involves physical restraint, use of a baton, use of 15 a gun, or use of a dog. Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994). 16 17 1. 18 Defendants Green and Javier acknowledge that they did use force on James, but assert 19 that the force used was reasonable to effect the arrest of James. Under the totality of 20 circumstances, and viewing the evidence in the light most favorable to James, the defendants’ 21 use of force – delivering knee strikes to James’ body and pinning his head and upper body to the 22 ground -- in arresting him was reasonable. Considering the various factors identified by 23 Graham, the Court concludes as a matter of law that the force used was not excessive. July 27, 2009 Incident 24 Severity of the crime: James’ offense was somewhat serious. Defendants initially had 25 reasonable suspicion to believe James was involved in an illegal narcotics sale. When they 26 approached him to investigate, James evaded questioning by flight. He continued to ignore the 27 defendants’ orders to stop. When he fell on the ground, James continued to resist officers as 28 they tried to handcuff him. James was taken into custody for violating his parole, resisting an 12 1 2 3 officer, possession of a controlled substance, and the sale of a controlled substance. Immediacy of threat to the safety of officers or others: It appears that the immediacy of a threat to the safety of officers or others was low as James initially fled from the scene. 4 Active resistance to arrest: The undisputed evidence shows that James was actively 5 resisting arrest by initially taking flight, ignoring defendants’ commands to give them his hands, 6 and then physically struggling against being handcuffed. Quantum of force used: The force used consisted of knee strikes to James’ body and then 8 pinning James to the ground while he was handcuffed. When James fell to the ground, he hid 9 his arms underneath his body to avoid being handcuffed. When defendants commanded James 10 United States District Court For the Northern District of California 7 to give them his hands, he did not comply and instead flailed his body. Defendants delivered 11 knee strikes to James’ body to cause him to move his arms out from underneath his body. When 12 James moved his arms from underneath his body, defendants got a hold of his hands and then 13 pinned his head area and upper body to prevent any further flailing. 14 Injuries: There were no allegations of injury from the alleged use of excessive force in 15 the amended complaint, nor did James present any evidence by way of medical records to 16 indicate that he suffered any injuries stemming from defendants’ actions. See Arpin v. Santa 17 Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (allegations of injury without 18 medical records or other evidence of injury insufficient to establish excessive force claim under 19 4th Amendment). 20 Efforts to temper use of force: The police officers attempted to temper the severity of 21 their response by giving James oral commands to give them his hands. James did not comply 22 and instead flailed his body. No force was used that was not preceded by and responsive to 23 James’ resistant behavior. 24 One might argue that there are alternative ways to deal with a resisting suspect. But that 25 kind of leisurely second-guessing ignores the directive to analyze the force making “allowance 26 for the fact that police officers are often forced to make split-second judgments--in 27 circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is 28 necessary in a particular situation.” Graham, 490 U.S. at 397. Doing so, this Court concludes 13 that no reasonable jury could find that defendants applied an excessive amount of force during 2 the detention of James. See, e.g., Brooks v. City of Seattle, 599 F.3d 1018, 1030-31 (9th Cir. 3 2010) (officers entitled to judgment in case presenting a less-than-intermediate use of force (i.e., 4 tasing a pregnant woman three times), which was “prefaced by warnings and other attempts to 5 obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out 6 of police control, and posing some slight threat to officers”); Drummond v. City of Anaheim, 7 343 F.3d 1052, 1058-60 (9th Cir. 2003) (although some force was justified in restraining 8 mentally ill individual so he could not injure himself or the officers, once he was handcuffed and 9 lying on the ground without offering resistance, two officers who knelt on him pressed their 10 United States District Court For the Northern District of California 1 weight against his torso and neck despite his pleas for air used constitutionally excessive force); 11 Miller v. Clark County, 340 F.3d 959, 963-68 (9th Cir. 2003) (use of trained police dog to “bite 12 and hold” suspect until officers arrived on the scene less than a minute later does not constitute 13 unreasonable excessive force under 4th Amendment when suspect poses immediate threat to 14 officers’ safety, several attempts to arrest suspect with less forceful means are unsuccessful as 15 a result of suspect’s defiance, and use of police dog is well-suited to task of safely arresting 16 suspect). James has failed to establish a triable issue of fact as to whether he was subjected to 17 excessive force by defendants. Defendants are entitled to judgment as a matter of law on the 18 Fourth Amendment claim. 19 20 2. February 17, 2010 Incident 21 Defendants Puga and McGilboney acknowledge that they used force on James, but 22 contend that they used reasonable force to defend themselves and to obtain James’ compliance. 23 Under the totality of circumstances, and viewing the evidence in the light most favorable to 24 James, the defendants’ use of force – putting pressure on James’ TMJ, tasing him, pulling him 25 out of the car, and delivering knee and baton strikes -- in arresting him was reasonable. Again 26 considering the various factors identified by Graham, the Court concludes as a matter of law that 27 the force used was not excessive. 28 Severity of the crime: Although James’ offense was not initially serious, the situation 14 1 quickly escalated. Defendants saw a baggy of powder cocaine in plain sight and attempted to 2 investigate and secure James, who had a criminal history of resisting arrest. The situation 3 escalated when James unexpectedly lunged back into the car before defendants had a chance to 4 search him or the car. James fought against defendants’ efforts to stop him from swallowing the 5 evidence, going so far as to bite Puga. He continued to ignore the defendants’ orders to stop 6 fighting, and even the taser gun had no physical effect on him. Defendants were only able to 7 successfully handcuff James after delivering knee strikes and baton strikes. James was 8 ultimately charged with resisting an officer, destroying evidence, and battery on officer. Immediacy of threat to the safety of officers or others: Given James’ criminal history, he 10 United States District Court For the Northern District of California 9 posed an immediate threat to the safety of the officers. When defendants checked James’ 11 history, they found that James had prior arrests for guns, drugs, and resisting arrest. It was 12 therefore reasonable for the defendants to believe that the car potentially contained weapons 13 such as a gun or other weapons of opportunity, and therefore expedient to remove him from the 14 vehicle and search him. When James resisted thereafter, and even went so far as to bite Puga, 15 the threat to officers significantly increased as James continued to disregard commands to stop 16 fighting. 17 Active resistance to arrest: The undisputed evidence shows that James was actively 18 resisting arrest when he lunged back into the car before defendants finished handcuffing him. 19 He continued to resist as he destroyed evidence and bit Puga, all the while disregarding 20 defendants’ commands to stop fighting. James never stopped physically struggling until 21 defendants managed to get him in handcuffs. 22 Quantum of force used: The force used consisted of pressure to James’ TMJ, pulling him 23 out of the car, tasing him, and then knee and baton strikes as they attempted to handcuff him. 24 When defendants commanded James to stop fighting, he did not comply and instead continued 25 to struggle against being handcuffed. McGilboney issued a warning before he used the taser on 26 James, but the taser had no physical effect on James, who continued to disregard defendants’ 27 orders to stop fighting. After they pulled him from the car, defendants delivered knee strikes and 28 baton strikes to gain physical control of James as they attempted to handcuff him. They stopped 15 1 using force as soon as they had successfully handcuffed him. 2 Injuries: Although James alleges that he was beaten until an ambulance was called and 3 he was rushed to a hospital, James neither makes any specific allegations of injury nor presents 4 any evidence by way of medical records to indicate that he suffered any injuries stemming from 5 defendants’ actions. See Arpin, 261 F.3d at 922. 6 Efforts to temper use of force: Defendants attempted to temper the severity of their 7 response by giving James oral commands to stop fighting and warnings before using the taser 8 gun. James did not comply and instead continued to struggle. No force was used that was not 9 preceded by and responsive to James’ resistant behavior. United States District Court For the Northern District of California 10 James has failed to establish a triable issue of fact as to whether he was subjected to 11 excessive force by defendants. Defendants are entitled to judgment as a matter of law on the 12 Fourth Amendment claim. 13 14 C. Qualified Immunity 15 The defense of qualified immunity protects “government officials . . . from liability for 16 civil damages insofar as their conduct does not violate clearly established statutory or 17 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 18 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth 19 a two-pronged test to determine whether qualified immunity exists. The threshold question is: 20 “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the 21 officer’s conduct violated a constitutional right?” Id. at 201. If no constitutional right was 22 violated if the facts were as alleged, the inquiry ends and defendants prevail. See id. If, 23 however, “a violation could be made out on a favorable view of the parties’ submissions, the 24 next, sequential step is to ask whether the right was clearly established. . . . ‘The contours of the 25 right must be sufficiently clear that a reasonable official would understand that what he is doing 26 violates that right.’ . . . The relevant, dispositive inquiry in determining whether a right is clearly 27 established is whether it would be clear to a reasonable officer that his conduct was unlawful in 28 the situation he confronted.” Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 16 1 (1987)). Although Saucier required courts to address the questions in the particular sequence 2 set out above, courts now have the discretion to decide which prong to address first, in light of 3 the particular circumstances of each case. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). 4 As shown in the preceding section, the evidence in the record does not establish a 5 violation of James’ Fourth Amendment rights. Defendants prevail on the first step of the Saucier 6 analysis, so the Court need not proceed to the second step of the Saucier analysis. Defendants 7 are entitled to judgment as a matter of law on the qualified immunity defense. 8 9 D. Supervisor Liability United States District Court For the Northern District of California 10 James claims that defendant Hayward police chief Ron Ace is liable for the 11 unconstitutional acts of his subordinates which were allegedly done “with the knowledge and 12 consent... or were thereafter approved by” defendant Ace. Amended Complaint, p. 5. 13 A supervisor may be liable under section 1983 upon a showing of (1) personal 14 involvement in the constitutional deprivation or (2) a sufficient causal connection between the 15 supervisor’s wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202, 16 1207 (9th Cir. 2011); Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en 17 banc). A supervisor therefore generally “is only liable for constitutional violations of his 18 subordinates if the supervisor participated in or directed the violations, or knew of the violations 19 and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 20 As discussed above, the Court has found no violation of James’ Fourth Amendment rights 21 by HPD officers during the two incidents at issue. A supervisor cannot be held liable for 22 wrongful conduct where there has been no wrongful conduct or constitutional violation by his 23 subordinates. See Starr, 652 F.3d at 1207. Furthermore, there is no evidence in the record to 24 indicate that defendant Ace personally participated in or directed the actions of defendants 25 during the two incidents at issue. Accordingly, defendant Ace is entitled to judgment as a matter 26 of law. 27 28 17 1 2 3 E. Municipal Liability James claims that the City of Hayward, the HPD, and the County of Alameda are liable for violating his Fourth Amendment right and for malicious prosecution. Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where 5 official policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 6 U.S. 658, 690 (1978);4 however, a city or county may not be held vicariously liable for the 7 unconstitutional acts of its employees under the theory of respondeat superior, see Board of Cty. 8 Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller 9 v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). To impose municipal liability under 10 United States District Court For the Northern District of California 4 § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff 11 possessed a constitutional right of which he or she was deprived; (2) that the municipality had 12 a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional 13 rights; and (4) that the policy is the moving force behind the constitutional violation. See 14 Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). Local 15 government does not cause the alleged violation, and therefore is not liable under § 1983, if it 16 does not have the power to remedy the alleged violation. See Estate of Brooks v. United States, 17 197 F.3d 1245, 1248-49 (9th Cir. 1999) (upholding dismissal of § 1983 excessive detention 18 claim against county because under state statute county did not have power either to release 19 federal detainee or bring him before federal judge). 20 21 1. 22 James’ Fourth Amendment claims against these defendants fail, first of all, because he 23 cannot show the first element, i.e., that he was deprived of a constitutional right. See Plumeau, 24 130 F.3d at 438. As discussed above, the Court has found no violation of James’ Fourth Fourth Amendment 25 26 4 Local governing bodies therefore may be sued directly under § 1983 for monetary, declaratory or injunctive relief for the violation of federal rights. See Monell, 436 U.S. at 690. They are absolutely immune from liability for punitive damages under § 1983, however. See 28 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). 27 18 1 Amendment rights by HPD officers during the two incidents at issue. Secondly, James fails to 2 show that the officers acted pursuant to a custom, policy or practice of these municipal 3 defendants which resulted in a constitutional deprivation. Id. James claims that the alleged 4 constitutional violations were based on “racial profiling that the City of Hayward, Hayward 5 Police Department, County of Alameda supervisors have done nothing to stop.” Amended 6 Complaint, p. 8. However, the undisputed evidence shows that the detention and arrest of James 7 on the two separate occasions were each based on probable cause of criminal activity and not 8 on James’ race. Without evidence to the contrary, James’ allegation is conclusory. Furthermore, defendant County of Alameda argues in their separate motion for summary 10 United States District Court For the Northern District of California 9 judgment that James makes no specific factual allegation against the County. Mot. at 3. The 11 County argues that James’ sole allegation is that the County “may have employed [the] police 12 officers who are the subject of this Amended Complaint” and that “the Hayward Police 13 Department is a subdivision and/or department of defendant, County of Alameda.” Amended 14 Complaint, p. 3. The County submits evidence indicating that the City of Hayward is not a 15 subdivision of the County, and that the HPD is a department of the City of Hayward, and 16 thereby, none of the City’s or HPD’s employees are County employees. Mot. at 5-6. Be that 17 as it may, even assuming that the HPD officers were County and City employees, James has 18 failed to show that they violated his constitutional rights. Accordingly, there can be no liability 19 by the County, or the City of Hayward and HPD where there has been no wrongdoing by its 20 employees. Defendants are entitled to summary judgment as a matter of law. 21 22 2. 23 Malicious prosecution does not constitute a deprivation of liberty without due process of 24 law and is not a federal constitutional tort if process is available within the state judicial system 25 to remedy such wrongs. See Usher v. City of Los Angeles, 828 F.2d 556, 561-62 (9th Cir. 26 1987). However, there is an exception to this general rule: where a prosecution is conducted 27 with malice and without probable cause, and with the intent to deprive a person of equal 28 protection of the laws or another specific constitutional right, a due process claim may be stated. Malicious Prosecution 19 1 See Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (citing Bretz v. Kelman, 2 773 F.2d 1026, 1031 (9th Cir. 1985) (en banc), and Cline v. Brusett, 661 F.2d 108, 110-12 (9th 3 Cir. 1981)); Usher, 828 F.2d at 561-62. James’ malicious prosecution claim fails because the undisputed evidence shows that 5 defendants had probable cause to arrest James on the two incidents at issue, and there was 6 sufficient evidence to support the prosecutions stemming from the two incidents. See Smith v. 7 Almada, 640 F.3d 931, 938 (9th Cir. 2011) (upholding district court’s grant of summary 8 judgment on malicious prosecution claim because probable cause existed to arrest and prosecute 9 plaintiff for arson); Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009) (no 10 United States District Court For the Northern District of California 4 need to decide whether there was malice because probable cause existed and probable cause is 11 an absolute defense to malicious prosecution claim). Accordingly, defendants are entitled to 12 summary judgment as a matter of law. 13 14 CONCLUSION 15 For the foregoing reasons, defendants’ motions for summary judgment are GRANTED. 16 (Docket nos. 27 & 28.) Defendants are entitled to judgment as a matter of law on the merits of 17 the Fourth Amendment and malicious prosecution claims and on their defense of qualified 18 immunity. Judgment will be entered in all defendants’ favor and against plaintiff. The clerk will 19 close the file. 20 21 IT IS SO ORDERED. Dated: May 23, 2012 _______________________ SUSAN ILLSTON United States District Judge 22 23 24 25 26 27 28 20
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