Aquino v. County of Monterey Sheriff's Department et al, No. 5:2014cv03387 - Document 56 (N.D. Cal. 2016)

Court Description: ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting in part and denying in part 38 Motion for Summary Judgment. Signed by Judge Edward J. Davila on 9/29/2016. (ejdlc3, COURT STAFF) (Filed on 9/29/2016)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 NICOLAS AQUINO, Case No. 5:14-cv-03387-EJD Plaintiff, 8 v. 9 COUNTY OF MONTEREY SHERIFF’S DEPARTMENT, et al., 11 United States District Court Northern District of California 10 Defendants. 12 13 14 15 16 17 18 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Re: Dkt. Nos. 37, 38 Plaintiff Nicolas Aquino (“Plaintiff”) brings this action against Monterey County Sheriff’s Office (sued herein as County of Monterey Sheriff’s Department) (“Monterey County”), Sheriff’s Deputy Ivan Rodriguez (“Dep. Rodriguez”), and Sheriff’s Sergeant David Murray (“Sgt. Murray”) (collectively, “Defendants”) for alleged violations of his Fourth Amendment rights and related state law claims. Compl. ¶ 1, Dkt. No. 1. Presently before the court is Defendants’ Motion for Summary Judgment (“Def. Mot”) and Plaintiff’s Motion for Partial Summary Judgment (“Pl. 19 Mot”). Dkt. Nos. 37, 38. Defendants move for summary judgment on all claims, and Plaintiff 20 moves for partial summary judgment as to claims one, two, four, seven, eight, and eleven. 21 Based on the parties’ briefings and the arguments of counsel, and for the reasons stated 22 below, the court has determined summary judgment is appropriate as to some, but not all, of the 23 claims presented. Thus, both Defendants’ motion for summary judgment and Plaintiff’s motion 24 for partial summary judgment will be GRANTED IN PART and DENIED IN PART. 25 26 27 28 1 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 I. BACKGROUND 2 The events giving rise to Plaintiff’s claims occurred during the course of Dep. Rodriguez’s 3 investigation into a 911 call reporting suspicious activity at Plaintiff’s residence on the morning of 4 December 13, 2013. The following relevant facts are taken primarily from the parties’ 5 declarations, deposition testimony, and separate statements, and are undisputed unless otherwise 6 noted. Plaintiff Nicolas Aquino is a Captain in the United States Air Force and is a resident of 7 8 Monterey County, California. Decl. of Nicolas Aquino (“Aquino Decl.”) ¶ 1, Dkt. No. 37-3. In 9 early 2013, Plaintiff leased a residence at 24591 Portola Avenue, in Carmel, California, where he 10 was living on December 13, 2013. Aquino Decl. ¶ 3. The Monterey County Sheriff’s Office is a law enforcement agency in Monterey County, United States District Court Northern District of California 11 12 California. Defendant Dep. Rodriguez is, and at all times relevant here was, employed as a deputy 13 sheriff by Monterey County. Depo. of Ivan Rodriguez (“Rodriguez Depo.”) at 62:7-12; 66:15-19, 14 Dkt. No. 37-2. Defendant Sgt. Murray is, and at all times relevant here was, employed as a 15 sergeant by Monterey County. Defs.’ Resp. to Pl.’s Fact (“Pl. Fact”) 98, Dkt. No. 40-2. 16 17 A. The 911 Call On the morning of December 13, 2013, at approximately 10:55 a.m., Dep. Rodriguez 18 responded to a 911 call regarding a potentially suspicious individual at 24591 Portola Avenue, 19 Carmel, California. Pl. Fact 8. The 911 caller reported that a Hispanic male wearing a brown 20 hoodie was on the property, had approached the front door, walked around to the side, returned to 21 the front, and was now inside the residence. Pl. Fact 8. The caller identified himself as “Chris,” 22 but did not provide a last name and no further information about the caller was noted by the 23 dispatcher. Pl. Fact 8. The caller also stated that he was not sure if the man was a visitor, but said 24 that he had not seen him before. Pl. Fact 8. 25 26 27 28 When Dep. Rodriguez arrived in the area, he spoke with a white male across the street from 24591 Portola Avenue who told Dep. Rodriguez that he had seen a “suspicious” person, and 2 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 directed Dep. Rodriguez to Plaintiff’s residence. Rodriguez Depo. at 68:18-69:7; 70:14-71:6. The 2 man’s identity was unknown at the time of contact but he was later identified as Christopher 3 Adamski (“Adamski”). Id. at 71:15-17; 100:1-101:8; Pl. Fact 14. 4 5 B. Dep. Rodriguez’s Inspection of the Portola Avenue Property After speaking with Adamski, Dep. Rodriguez approached the Portola Avenue property 6 and looked over the north gate and into the backyard for signs of forced entry. Rodriguez Depo. at 7 71:23-25; 72:2-8; Pl. Fact 21. He did not discover any evidence of a break-in and saw “nothing 8 broken, nothing forced, [and] nothing suspicious.” Rodriguez Depo. at 72:12-16. Dep. Rodriguez 9 then proceeded to the opposite side of the property, looked over the southern fence, and again found no evidence of forced entry. Id. at 74:2-12; 75:8-13. While in front of the house, he 11 United States District Court Northern District of California 10 observed someone visible in one of the front windows and saw the shutters close, obscuring any 12 further view inside. Id. at 74:11-20. Based on this observation, Dep. Rodriguez decided to retreat 13 from the property, return to his patrol car, and await backup. Id. at 76:3-18. 14 As Dep. Rodriguez was leaving, Plaintiff opened the front door and inquired as to his 15 presence on the property. Aquino Decl. ¶ 7; Depo. of Nicolas Aquino (“Aquino Depo.”) at 69:12, 16 Dkt. No. 38-2. Dep. Rodriguez believed Plaintiff matched the description of the man from the 911 17 call in that he was a Hispanic male wearing a hooded sweatshirt. Pl. Fact 30. Dep. Rodriguez 18 informed Plaintiff that he was investigating a report of suspicious activity in the area and asked 19 Plaintiff who he was. Rodriguez Depo. at 82:1-24; Aquino Decl. ¶ 9. Plaintiff responded that he 20 lived on the property, at which point Dep. Rodriguez requested to see Plaintiff’s identification. 21 Rodriguez Depo. at 82:13-83:11. Plaintiff then asked Dep. Rodriguez if he was being detained; 22 why Dep. Rodriguez was asking him for identification; and whether Dep. Rodriguez had a 23 warrant. Rodriguez Depo. 83:25-84:8; Pl.’s Resp. to Defs.’ Fact (“Def. Fact”) 7, Dkt. No. 41-1. 24 Dep. Rodriguez responded that Plaintiff was being detained until Dep. Rodriguez could determine 25 if Plaintiff lived on the property and that he was requesting Plaintiff’s identification in order to 26 confirm this. Rodriguez Depo. at 84:9-15. 27 28 3 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT In response, Plaintiff pulled out his wallet, verbally informed Dep. Rodriguez that he was 1 2 in the military, 1 and showed Dep. Rodriguez his military issued ID card. Pl. Fact 46; Aquino 3 Decl. ¶ 14. There is some dispute as to the manner in which Plaintiff presented the ID card to 4 Dep. Rodriguez, but the parties generally agree that (1) Plaintiff took out and visibly displayed the 5 ID card for Dep. Rodriguez to see; (2) Plaintiff did not actually hand Dep. Rodriguez the card 6 itself; (3) Dep. Rodriguez stepped forward and reached out toward Plaintiff to take the ID card; (4) 7 Plaintiff moved his hand away, preventing Dep. Rodriguez from acquiring the ID card; and (5) a 8 physical altercation ensued. Rodriguez Depo. at 90:13-92:21; Aquino Decl. ¶¶ 14-15. 9 C. Physical Altercation Between Dep. Rodriguez and Plaintiff As a result of Plaintiff’s refusal to hand over his ID, Dep. Rodriguez states that he became 10 United States District Court Northern District of California 11 concerned for his safety and, believing Plaintiff may actually be a burglar, decided to physically 12 detain him in handcuffs. Rodriguez Depo. at 92:23-93:15; Def. Mot. at 4. In an effort to do so, 13 Dep. Rodriguez “lunged toward [Plaintiff] … to grab his [right] wrist,” then grabbed his left wrist 14 and moved behind Plaintiff trying to get his hands behind his back. Rodriguez Depo. at 126:2-25; 15 Aquino Decl. ¶ 18; Pl. Facts 58, 60. Plaintiff then “spun” toward Dep. Rodriguez with his body 16 slightly bent forward. Rodriguez Depo. at 127:1-5; Aquino Decl. ¶ 18. While Defendants contend 17 Plaintiff was resisting Dep. Rodriguez’s attempt to handcuff him, Plaintiff states that he was 18 thrown off balance by Dep. Rodriguez’s actions and was not resisting. Def. Fact 10; Aquino Decl. 19 ¶ 18; Pl. Opp. to Def. Mot. (“Pl. Opp.”) at 6-7, Dkt. No. 41. At that point, Dep. Rodriguez 20 “wrapped [his] right arm around [Plaintiff’s] head and neck,” dragging him to the ground. 21 Rodriguez Depo. at 129:1-6; 130:20-23; Aquino Decl. ¶ 19. While there is some dispute as to the details of what happened next, it appears that once on 22 23 the ground, Dep. Rodriguez ordered Plaintiff to get on his stomach and place his hands out at his 24 side, which Plaintiff failed to do. Rodriguez Depo. at 130:24-132-11; Pl. Fact 62; Def. Fact 10. 25 Maintaining a hold on Plaintiff’s head and neck, Dep. Rodriguez then used his body weight to 26 1 27 28 Dep. Rodriguez did not recall Plaintiff saying he was in the military. Rodriguez Depo. 83:3-7. 4 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 push Plaintiff into the ground, pinning his arms and hands underneath him.2 Aquino Decl. ¶¶ 19- 2 20; Pl. Opp. at 6-7; see also Rodriguez Depo. at 130:24-132-11. After unsuccessfully attempting to handcuff Plaintiff in this position, a civilian, 3 4 subsequently identified as Rafael Salcedo, “appeared out of nowhere” and grabbed Plaintiff’s left 5 arm. Rodriguez Depo. at 132:20-133:6; Pl. Fact 65. Moments later, Monterey Sheriff’s deputy 6 Albert Ainuu (“Dep. Ainuu”), arrived and they successfully handcuffed Plaintiff and placed him in 7 the back of Dep. Rodriguez’s patrol car. Rodriguez Depo. at 133:6-24.; Pl. Facts 65-67. 8 D. Alleged Search of Plaintiff’s Wallet and Residence After handcuffing and placing Plaintiff in his patrol car, Dep. Rodriguez picked up 10 Plaintiff’s wallet and ID card that had fallen onto the ground during the struggle and looked at the 11 United States District Court Northern District of California 9 items. Rodriguez Depo. at 137:22-138:15; Pl. Fact 71. Upon review of the items, Dep. Rodriguez 12 identified what he believed to be a military ID, as well as a Texas driver’s license and a Naval 13 Postgraduate identification card. Rodriguez Depo. at 138:14-140:1. When the wallet was later 14 returned to Plaintiff, Plaintiff alleges that fifty dollars was missing. Aquino Depo. at 148: 21-25. 15 After looking at Plaintiff’s identification, Dep. Rodriguez left the patrol car and “went 16 looking for people who could verify” that Plaintiff lived on the property. Rodriguez Depo. at 17 143:2-14.; Def. Facts 14-16. While none of the of the neighbors who spoke with Dep. Rodriguez 18 identified Plaintiff as the occupant of the house, one recalled that the resident of the property went 19 by the name “Nico,” which Dep. Rodriguez recognized could be short for “Nicolas,’ Plaintiff’s 20 first name. Def. Facts 15-16. 21 Around this time, Plaintiff appears to allege - and Defendants appear to dispute - that Dep. 22 Rodriguez entered Plaintiff’s residence without his consent and retrieved a utility bill from inside 23 24 25 26 27 28 2 There is also some dispute as to whether Dep. Rodriguez’s actions caused Plaintiff to hit his head on the pavement. Plaintiff alleges that it did, and that he lost visual and auditory awareness for a few seconds. Aquino Decl. ¶ 19; Pl. Fact. 63. Defendants purportedly dispute this fact by citing “Aquino depo. 107:6-8,” but the court was unable to locate this section of testimony in the record and no further docket number of identifying information was provided by Defendants. See Dkt. No. 40-2, at 10, Pl. Fact 63. 5 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 the house. Compl. ¶17; Pl. Facts 75, 76; Def. Facts 17, 18, 28; Rodriguez Depo. at 148:23-25. 2 There are internal inconsistencies in the arguments and evidence presented by both parties on this 3 issue. See Pl. Facts 75-76; Def. Facts 17-18.3 However, it is undisputed that at some point Dep. 4 Rodriguez returned to the patrol car, removed Plaintiff’s handcuffs, and allowed him to enter the 5 house and obtain utility bills himself, which showed that he was the lawful resident. Id. Dep. 6 Rodriguez then gave Plaintiff a sheet of paper with a report number, released him, and left the area 7 with Dep. Ainuu. See Def. Facts 18-20. 8 II. LEGAL STANDARD A motion for summary judgment or partial summary judgment should be granted if “there 9 is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of 11 United States District Court Northern District of California 10 law.” Fed. R. Civ. P. 56(a); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A 12 fact is material when, under governing substantive law, it could affect the outcome of the case. 13 Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine 14 if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. 15 The moving party bears the initial burden of informing the court of the basis for the motion 16 and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, 17 or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. 18 Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this initial burden, the burden then 19 shifts to the nonmoving party to go beyond the pleadings and designate “specific facts showing 20 that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The court 21 must regard as true the opposing party’s evidence, if supported by affidavits or other evidentiary 22 material. Celotex, 477 U.S. at 324. However, the mere suggestion that facts are in controversy, or 23 24 25 26 27 28 3 See also, Supplemental Report of Dep. Ainuu (“Ainuu Report”), Ex. D at 9, Avila Decl., Dkt. No. 41-3; Depo. of Albert Ainuu (“Ainuu Depo.”) at 71:15-75:21, Ex. G, Avila Decl. Dkt. No. 413. Initially, Dep. Ainuu recalled that Dep. Rodriguez had been the one to “recover” documents with Plaintiff’s name from inside the house. He later claimed he could not remember how Dep. Rodriguez got the documents, but given that Plaintiff was in the patrol car, stated he did not know how else Dep. Rodriguez would have obtained the document other than by entering the residence. 6 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 conclusory and speculative testimony in affidavits and moving papers, is insufficient to defeat 2 summary judgment. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 3 Where the nonmoving party will have the burden of proof at trial on an issue, the moving 4 party need only point out “that there is an absence of evidence to support the nonmoving party’s 5 case.” Celotex, 477 U.S. at 325. Provided there has been adequate time for discovery, summary 6 judgment should be entered against a party who fails to make a showing sufficient to establish the 7 existence of an essential element to that party’s case. Id. at 322-23. “[A] complete failure of 8 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 9 facts immaterial.” Id. at 323. 10 United States District Court Northern District of California 11 12 III. DISCUSSION A. § 1983 Claim Against Dep. Rodriguez (Claim One) Plaintiff’s first cause of action alleges that Dep. Rodriguez violated his Fourth Amendment 13 rights to be free from unreasonable searches and seizures, as well as his right to be free from the 14 excessive use of force. Defendants move for summary judgment on the grounds that Dep. 15 Rodriguez had reasonable suspicion to detain Plaintiff for the purposes of investigation, used 16 reasonable force in doing so, and because he has no liability under the doctrine of qualified 17 immunity. Plaintiff also moves for summary judgment on the § 1983 claim. 18 19 i. Unreasonable Seizures Plaintiff alleges that Dep. Rodriguez lacked any legal basis to verbally or physically detain 20 him, and therefore he was unlawfully seized in violation of the Fourth Amendment. Defendants 21 assert that the facts and circumstances surrounding Dep. Rodriguez’s encounter with Plaintiff 22 established reasonable suspicion to detain Plaintiff in conjunction with the investigation of the 911 23 call reporting a suspicious person on the property. 24 25 26 27 28 a. Initial Investigatory Detention Under the Supreme Court precedent set in Terry v. Ohio, a police officer may detain a suspect for limited investigative purposes if the officer has reasonable suspicion the suspect was 7 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 engaged in criminal activity. 392 U.S. 1, 20-21 (1968); see United States v. Hensley, 469 U.S. 2 221, 229 (1985). The reasonable suspicion standard “is a less demanding standard than probable 3 cause, and merely requires a minimal level of objective justification.” Gallegos v. City of Los 4 Angeles, 308 F.3d 987, 990 (9th Cir. 2002) (internal quotations omitted). The scope of a 5 permissible Terry-stop has been expanded to include “asking the detainee a moderate number of 6 questions to determine his identity and to try to obtain information confirming or dispelling the 7 officer’s suspicions.” United States v. Washington, 387 F.3d 1060, 1067 (9th Cir. 2004) (quoting 8 Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984)). A detention premised on reasonable 9 suspicion must also be “sufficiently brief and minimally intrusive” to be constitutional under the 10 United States District Court Northern District of California 11 Fourth Amendment. Id.; see United States v. Sharpe, 470 U.S. 675, 685, (1985). Here, Dep. Rodriguez’s initial decision to detain Plaintiff in order to determine whether he 12 was lawfully on the property was supported by reasonable suspicion and was therefore 13 constitutional. The record reflects that Dep. Rodriguez was responding to a 911 call concerning a 14 suspicious individual and that upon arriving at the scene, a neighbor confirmed the report of the 15 suspicious individual and directed Dep. Rodriguez to Plaintiff’s property. Pl. Fact 8; Rodriguez 16 Depo. at 68:18-69:7; 70:14-71:6. The record further indicates that in the course of his 17 investigation, Dep. Rodriguez observed an unknown person inside the house and then encountered 18 Plaintiff, who generally matched the description of the individual from the 911 call, coming out of 19 the house towards him. Rodriguez Depo. at 74:11-20; Aquino Depo. at 69:12. Finally, when Dep. 20 Rodriguez asked Plaintiff for identification, Plaintiff asked if he was being detained, and Dep. 21 Rodriguez responded that he was being detained until he could determine if Plaintiff lived on the 22 property. Rodriguez Depo. 83:25-84:15; Pl. Fact 7. 23 As an officer acting in the scope of his professional duties in responding to a report of a 24 suspicious person, it was both reasonable and prudent of Dep. Rodriguez to inquire as to 25 Plaintiff’s identity. Under these circumstances, Dep. Rodriguez had a reasonable, articulable 26 suspicion that a burglary may have occurred and that Plaintiff might be involved. Accordingly, 27 28 8 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Dep. Rodriquez’s initial investigative detention for the purposes of confirming or dispelling this 2 suspicion was warranted here. See Washington, 387 F.3d at 1067. Based on the foregoing, the 3 court finds as a matter of law that Dep. Rodriguez did not violate Plaintiff’s Fourth Amendment 4 rights when executing this initial investigatory detention. Thus, to the extent that the parties’ 5 respective motions are based on the initial investigatory detention, Defendants’ motion for 6 summary judgment is GRANTED and Plaintiff’s motion for partial summary judgement is 7 DENIED. 8 9 b. Extended Physical Seizure Beyond the initial investigatory detention, the parties further disagree as to whether the physical seizure and continued detention of Plaintiff - including the use of force, the use of 11 United States District Court Northern District of California 10 handcuffs, and placing Plaintiff inside the patrol car - remained a valid investigatory detention 12 under Terry, or whether it extended past what could be considered “sufficiently brief and 13 minimally intrusive” under the Fourth Amendment, instead becoming a de facto arrest. See 14 Washington, 387 F.3d at 1069; Sharpe, 470 U.S. at 685. 15 Where an officer engaged in a Terry-like stop exceeds the permissible scope of a brief 16 investigatory detention, the stop is transformed into an arrest requiring probable cause. There is 17 “no bright line rule for determining when an investigatory stop crosses the line and becomes an 18 arrest.” United States v. Parr, 843 F.2d 1228, 1231 (9th Cir.1988). Whether a specific detention 19 amounts to an arrest or an investigatory stop “is a fact-specific inquiry guided by the general 20 Fourth Amendment requirement of reasonableness” and ascertained in light of the “totality of the 21 circumstances.” Gallegos, 308 F.3d at 991 (internal citations omitted); Green v. City & Cty. of 22 San Francisco, 751 F.3d 1039, 1047 (9th Cir. 2014); Washington v. Lambert, 98 F.3d 1181, 1185 23 (9th Cir. 1996). When making this determination, courts consider the “intrusiveness of the 24 methods used in light of whether these methods were reasonable given the specific 25 circumstances.” Green, 751 F.3d at 1047. Generally, the use of “especially intrusive means” is 26 permitted only under special circumstances, such as “(1) where the suspect is uncooperative or 27 28 9 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 takes action at the scene that raises a reasonable possibility of danger or flight; (2) where the 2 police have information that the suspect is currently armed; (3) where the stop closely follows a 3 violent crime; and (4) where the police have information that a crime [potentially involving] 4 violence is about to occur.” Green, 751 F.3d at 1047 (quoting Washington, 98 F.3d at 1189). 5 “[W]hen the police have only reasonable suspicion to make an investigatory stop, drawing 6 weapons and using handcuffs and other restraints will violate the Fourth Amendment.” 7 Washington, 98 F.3d at 1187. 8 Here, the record suggests that the “methods” used by Dep. Rodriguez to detain Plaintiff 9 became significantly more intrusive after the initial verbal detention. Specifically, triggered by Plaintiff’s failure to directly hand over his identification, Dep. Rodriguez decided to detain 11 United States District Court Northern District of California 10 Plaintiff in handcuffs and began attempting to physically restrain him. See Rodriguez Depo. at 12 92:23-93:15. Perceiving some resistance, Dep. Rodriguez wrapped his arm around Plaintiff’s 13 head and neck, dragged him to the ground, and used his body weight to pin Plaintiff on the ground 14 while commanding him to put his hands out at his side. See Rodriguez Depo. at 130:24-132-11; 15 Aquino Decl. ¶¶ 19-20. Plaintiff was eventually handcuffed and put inside the patrol car. 16 Rodriguez Depo. at 133:6-24.; Pl. Facts 65-67. 17 While Dep. Rodriguez did not draw his weapon, the Ninth Circuit has consistently 18 reiterated that “handcuffing substantially aggravates the intrusiveness of an otherwise routine 19 investigatory detention and is not part of a typical Terry stop.” Green, 751 F.3d at 1047; see also, 20 United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (finding the use of handcuffs to be an 21 important factor in determining that an arrest had taken place). Indeed, even minor restraints on 22 an individual’s liberty may be considered a de facto arrest if “the inherent danger of the situation 23 does not justify the intrusive police action. Washington, 98 F.3d at 1187; see, e.g., United States 24 v. Ricardo D., 912 F.2d 337, 340–42 (9th Cir. 1990) (finding that arrest occurred where police 25 held suspect in patrol car for twenty minutes without drawing weapons or handcuffing him). 26 Here, not only was Plaintiff put in handcuffs, he was subjected to significant physical force in the 27 28 10 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 process, including being taken to the ground, and then restrained for some time in the back of the 2 patrol car. The question is therefore whether such objectively intrusive measures were warranted 3 by unique circumstances or the “inherent danger” of the situation. 4 Reviewing the circumstances in light of the Washington factors, the court concludes that a 5 reasonable jury could find that the prolonged detention of Plaintiff, including the use of force and 6 handcuffs, exceeded the limits of an investigative detention under Terry. There no evidence that 7 Plaintiff was armed or otherwise posed an immediate threat, the detention did not closely follow a 8 violent crime, and the police did not have any specific information that a crime was about to 9 occur. See Washington, 98 F.3d at 1189. By Dep. Rodriguez’s own testimony, he did not believe Plaintiff was reaching for a weapon or displaying physical aggression toward him. Rodriguez 11 United States District Court Northern District of California 10 Depo. at 109:11-111:15; 114:22-115:9. Moreover, unlike in the cases cited by Defendants where 12 a 911 caller reported a recent or ongoing crime, an immediate threat, or the existence of weapons, 13 the 911 caller here did not provide any facts to suggest a specific crime was being committed, 14 made no mention of weapons, and even stated he was “not sure if [the person] is visiting.” See 15 Def. Mot at 6-7 (citing United States v. Terry-Crespo, 356 F.3d 1170, 1174 (9th Cir. 2004) 16 (finding reasonable suspicion to detain a suspect where the 911 caller reported that he had just 17 been threatened by a man with a .45 handgun, provided a physical description of the man, and 18 gave the location of the incident)). 19 There is some evidence to suggest that Plaintiff may have been somewhat “uncooperative” 20 or resistant to Dep. Rodriguez, causing Dep. Rodriguez to feel that he was in some danger. See 21 Rodriguez Depo. at 90:13-92:21; 132:12-19; 155:9-14. It is also worth noting that Dep. Rodriguez 22 was, at that time, alone, increasing the potential risk to himself. However, there is also evidence 23 that Plaintiff was generally attempting to comply with Dep. Rodriguez’s requests and, while he 24 did not directly hand his ID to Dep. Rodriguez, he did take it out and display it. See id.; Aquino 25 Decl. ¶¶ 14-15. Nothing in the record suggests Plaintiff was clearly noncompliant or attempting to 26 flee. At a minimum, there exists a triable issue as to whether Dep. Rodriguez’s tactics exceeded 27 28 11 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 what was necessary or reasonable under the circumstances in violation of Plaintiff’s constitutional 2 rights. Accordingly, Defendants’ motion for summary judgment on this issue is DENIED. 3 Because this reasoning precludes judgment as a matter of law in favor of either party, Plaintiff’s 4 motion for partial summary judgment is also DENIED. 5 6 ii. Excessive Force Plaintiff also asserts that Dep. Rodriguez violated his Fourth Amendment rights by using 7 excessive force when attempting to physically detain him. A claim of excessive force brought 8 against police officers must be analyzed under the Fourth Amendment’s “reasonableness” 9 standard. Graham v. Connor, 490 U.S. 386, 395 (1989); Smith v. City of Hemet, 394 F.3d 689, 700–01 (9th Cir. 2005). The “objective reasonableness” of an officer’s use of force in a particular 11 United States District Court Northern District of California 10 case is determined “in light of the facts and circumstances confronting [him], without regard to 12 [his] underlying intent or motivation.” Graham, 490 U.S. at 396-97. “Because this inquiry is 13 inherently fact specific, the determination whether the force used to effect an arrest was reasonable 14 under the Fourth Amendment should only be taken from the jury in rare cases.” Green, 751 F.3d 15 at 1049 (internal quotations omitted); see also Avina v. United States, 681 F.3d 1127, 1130 (9th 16 Cir. 2012) (“summary judgment or judgment as a matter of law in excessive force cases should be 17 granted sparingly.”); Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a particular 18 use of force was reasonable is rarely determinable as a matter of law.”). 19 Determining the reasonableness of the force used to effect a seizure requires balancing “the 20 nature and quality of the alleged intrusion” on a person’s liberty against the “countervailing 21 governmental interests at stake.” Graham, 490 U.S. at 396. Similar to the detention analysis, 22 there is no precise definition of what constitutes sufficient government interest to justify the 23 amount of force used. Rather, the assessment requires careful consideration of the particular facts 24 and circumstances at issue, including (1) the severity of the crime, (2) whether the suspect posed 25 an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively 26 resisting arrest or attempting to evade arrest by flight. Id.; Luchtel v. Hagemann, 623 F.3d 975, 27 28 12 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 980 (9th Cir. 2010). Of these factors, the most important generally is whether the suspect posed 2 an immediate threat. Graham, 490 U.S. at 396. However, courts must “examine the totality of the 3 circumstances and consider whatever specific factors may be appropriate in a particular case.” 4 Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Here, Defendants argue that Dep. Rodriguez’s use of force was objectively reasonable 6 under the circumstances. Specifically, as to the degree of intrusion, Defendants argue that the 7 “the struggle was brief” and that no weapons, chemical agents, or Tasers were employed. Def. 8 Mot. at 12. As to the government interests justifying the use of force, Defendants emphasize that 9 Dep. Rodriguez was responding to a 911 call, that he believed a burglary may have occurred, and 10 that Plaintiff’s resistance and his failure to put his hands out to his side once on the ground made 11 United States District Court Northern District of California 5 Dep. Rodriguez fearful that he was reaching for a weapon. See Rodriguez Depo. at 85:2-11; 12 132:12-19. Defendants conclude that these circumstances are sufficient to justify the degree of 13 force used. However, Defendants’ argument that the degree of intrusion was “minimal” because 14 no weapons were used and the altercation was brief is unconvincing. Plaintiff alleges that Dep. 15 Rodriguez used significant physical force against him, including dragging him to the ground, 16 employing the use of a chokehold, and handcuffing him. See Aquino Decl. ¶¶ 19-20; see also 17 Rodriguez Depo. at 130:24-132-1. This degree of force is more than minimal. The only question, 18 then, is whether the force used was nevertheless justified by the “countervailing government 19 interest” at stake. See Graham, 490 U.S. at 396. 20 Applying the Graham factors to this case, and the reasons already discussed, the court 21 finds that there remain triable issues of fact precluding summary judgment as to whether Dep. 22 Rodriguez’s use of force was objectively reasonable under the circumstances. See 490 U.S. at 23 396. As to the “severity of the crime” at issue, while burglary may be considered a serious crime, 24 the 911 caller in this case noted only the presence of a potentially suspicious person on the 25 property. Neither the dispatch call nor the Call-For-Service (“CAD”) used the words “burglary in 26 process,” which might have elevated the severity or risk. Rodriguez Depo. at 101: 14-23; CAD, 27 28 13 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Ex. A, Avila Decl., Dkt No. 41-3. Second, there is no evidence that Plaintiff posed an immediate 2 threat to Dep. Rodriguez or others. Dep. Rodriguez testified that he did not perceive Plaintiff as 3 making any assaultive movement toward him and at no point did he see a weapon. Rodriguez 4 Depo. at 77:18-23; 109:11-111:15. And third, while there is some evidence Plaintiff may have 5 resisted Dep. Rodriguez’s attempts to handcuff and detain him, there is also evidence that he was 6 cooperative and sought to comply with Dep. Rodriguez’s instructions. See id. at 90:13-92:21; 7 132:12-19; 155:9-14; Aquino Decl. ¶¶ 14-15. 8 9 10 United States District Court Northern District of California 11 12 Because there remain disputes of material fact relevant to determining whether Dep. Rodriguez’s use of force was “objectively reasonable,” this issue cannot be decided as a matter of law. Accordingly, both motions for summary judgment on this issue are DENIED. iii. Warrantless Searches Plaintiff’s final claim under the Fourth Amendment alleges that Dep. Rodriguez conducted 13 unconstitutional searches of his yard, wallet, and residence. Plaintiff moves for partial summary 14 judgment as to the searches of the yard and the wallet. Pl. Mol. at 18-19. Defendants’ motion 15 does not specifically address these three searches, but instead argues generally that summary 16 judgment is proper because Dep. Rodriguez’s actions were based on reasonable suspicion. See 17 Def. Opp. to Pl. Mot. (“Def. Opp.”) at 6-7, 11-13, Dkt. No. 40. 18 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, 19 houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV. 20 In general, for a search to be “reasonable” under the Fourth Amendment, it must be conducted 21 pursuant to a warrant based on probable cause. Agnello v. United States, 269 U.S. 20, 33 (1925). 22 A “search” under the Fourth Amendment “occurs when the government invades an area in which a 23 person has a reasonable expectation of privacy.” Mendez v. Cty. of Los Angeles, 815 F.3d 1178, 24 1187 (9th Cir. 2016). It is widely established that nowhere is this expectation greater, or the 25 “protective force of the Fourth Amendment more powerful than within the sanctity of the home.” 26 United States v. Crapser, 472 F.3d 1141, 1157 (9th Cir. 2007). These protections also extend to 27 28 14 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 the area immediately adjacent to a home, known as the ‘curtilage.’” Mendez, 815 F.3d at 1187 2 (9th Cir. 2016) (citing United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010)). 3 4 a. Search of Plaintiff’s Yard For the purpose of summary judgment, the issue here is whether Dep. Rodriguez’s 5 entrance onto Plaintiff’s property was a “search” in violation of the Fourth Amendment. A 6 warrantless search of the home or the curtilage surrounding the home is considered 7 “presumptively unreasonable.” Sandoval v. Las Vegas Metropolitan Police Dep’t, 756 F.3d 1154, 8 1161 (9th Cir. 2014) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). However, it is “a 9 firmly-rooted notion in Fourth Amendment jurisprudence” that a resident’s expectation of privacy will generally not be violated when an officer briefly intrudes onto the property for limited 11 United States District Court Northern District of California 10 investigatory purposes. See e.g., Crapser, 472 F.3d at 1156 (finding no invasion of privacy where 12 an officer entered onto the front porch and knocked on the door in a non-coercive manner to ask 13 questions of a resident.); United States v. Hammett, 236 F.2d 1054, 1060 (9th Cir. 2001) (finding 14 no invasion of privacy where an officer walked to the rear of a residence to locate and interview 15 the occupant); United States v. Ellis, 121 F. Supp. 3d 927, 949 (N.D. Cal. 2015) (holding that an 16 officer’s entry into a privately owned driveway or parking lot did not constitute a Fourth 17 Amendment violation); see also, Maryland v. Buie, 494 U.S. 325, 327 (1990) (affirming that 18 officers may conduct protective sweeps of private property when “the searching officer possessed 19 a reasonable belief based on specific and articulable facts which, taken together with the rational 20 inferences from those facts, reasonably warranted the officer in believing that the area swept 21 harbored an individual posing a danger to the officer or others.”). 22 Here, Dep. Rodriguez approached the property to investigate a report of a possible 23 burglary, looked over the north gate into the backyard for signs of forced entry, and then walked to 24 the south side of the house to do the same. Rodriguez Depo. at 71:23-72:8; 74:2-75:13. To the 25 extent that Dep. Rodriguez actually even entered the property before encountering Plaintiff, he did 26 so in a limited and minimally intrusive manner in keeping with his investigation of the 911 report. 27 28 15 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Id. This conduct is consistent with what any reasonable officer would be expected to do in 2 response to such a report. As such, the court finds that Dep. Rodriguez did not violate any 3 constitutional right when he briefly looked and/or entered onto Plaintiff’s property. To hold 4 otherwise would functionally prevent officers from making welfare checks or preliminary 5 investigations in response to 911 calls without a warrant. 6 Moreover, even if the court determined that Dep. Rodriguez had violated Plaintiff’s Fourth 7 Amendment rights, the law on the subject is not so clearly established that an officer in Dep. 8 Rodriguez’ position could not have reasonably believed that his entry into the yard was lawful. 9 See Burrell v. McIlroy, 423 F.3d 1121, 1124 (9th Cir. 2005). Thus, Dep. Rodriguez would also be 10 United States District Court Northern District of California 11 entitled to qualified immunity on this issue. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED to the 12 extent it is based on the warrantless search of Plaintiff’s yard. Plaintiff’s motion for partial 13 summary judgement is therefore DENIED for the same reasons. 14 15 b. Search of Plaintiff’s Wallet Plaintiff also moves for summary judgment as to his allegations that Dep. Rodriguez 16 conducted a search of his wallet in violation of the Fourth Amendment. Pl. Mot. at 18-21. 17 Defendants do not dispute that Dep. Rodriguez opened Plaintiff’s wallet and searched it in order to 18 locate his identification. Rodriguez Depo. at 137:22-138:15; Pl. Fact 71. Rather, Defendants 19 argue that because Dep. Rodriguez had reasonable suspicion to detain Plaintiff, and the wallet fell 20 onto the ground during the detention, the search of the wallet was constitutional under the plain 21 view doctrine. Def. Opp. at 10-11. 22 As an initial matter, the court recognizes that Plaintiff had a reasonable expectation of 23 privacy in the contents of his wallet. See United States v. Monclavo-Cruz, 662 F.2d 1285, 1290- 24 91 (9th Cir. 1981) (concluding the individual’s “expectation of privacy in her purse was one that 25 society recognizes as reasonable”); United States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003) 26 (finding the defendant had a reasonable expectation of privacy in his gym bag); see also, People v. 27 28 16 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Williams, 63 Mich. App. 398, 401 (1975) (holding that the “seizing of a person’s wallet and 2 examination of its contents constitutes a search in the constitutional sense since this interferes with 3 the person’s reasonable expectation of privacy.”). Accordingly, a warrantless search of a wallet is 4 unreasonable under the Fourth Amendment unless it is justified by a recognized exception. 5 The plain view doctrine is a limited exception permitting law enforcement officers to 6 “seize evidence in plain view, provided that they have not violated the Fourth Amendment in 7 arriving at the spot from which the observation of the evidence is made.” Kentucky v. King, 563 8 U.S. 452, 462 (2011) (citing Horton v. California, 496 U.S. 128, 136-140 (1990)). To fall within 9 the purview of the plain view doctrine, the Ninth Circuit has identified two requirements that must be met: first “the officers must be lawfully searching the area where the evidence is found” and 11 United States District Court Northern District of California 10 second, “the incriminatory nature of the evidence must be immediately apparent.” United States 12 v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005). The “incriminating character” of an object is 13 “immediately apparent” if the police have probable cause to believe that the item is illegal, 14 unlawful, or associated with criminal activity. Id.; see also, Minnesota v. Dickerson, 508 U.S. 15 366, 374-75 (1993). Neither requirement is met here. 16 First, as discussed, it remains an unsettled question as to whether Dep. Rodriguez violated 17 Plaintiff’s rights in reaching the point where he seized and searched the wallet. Second, there is 18 nothing inherently incriminating or illegal about a wallet. Moreover, the plain view doctrine was 19 developed in the context of seizures, not searches. Thus, even assuming the plain view 20 requirements were satisfied here, invoking the doctrine for the purposes of seizing the wallet does 21 not necessarily warrant its search. United States v. Cornejo, 598 F.2d 554, 556 (9th Cir. 1979) 22 (“The lawfulness of the seizure of the purse does not justify the search of its contents; although the 23 purse itself was in plain view, its contents were not.”). As the Third Circuit explained in 24 addressing this same issue, “[t]he plain view doctrine does not authorize an otherwise 25 unauthorized search…Indeed, the plain view doctrine does not authorize searches; by definition, it 26 only authorizes seizures of items in plain view to which the officer has a right of access.” United 27 28 17 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 States v. Rivera-Padilla, 365 F. App’x 343, 346 (3d Cir. 2010) (emphasis in original). Based on the foregoing, the court finds that the plain view doctrine is inapplicable here to 2 3 warrant Dep. Rodriguez’s search of Plaintiff’s wallet. Defendants advance no additional theory or 4 argument in support of the lawfulness of the search. Finding no valid basis for the search, the 5 court determines that the search of Plaintiff’s wallet was unjustified and judgment in favor of 6 Plaintiff is therefore warranted. Accordingly, Plaintiff’s motion for partial summary judgment is 7 GRANTED as to the search of the wallet. Damages, if any, will be assessed by a jury. To the 8 extent that Defendants move for summary judgment on this issue, the motion is DENIED. c. Search of Plaintiff’s Residence 9 Finally, it appears that Plaintiff also alleges Dep. Rodriguez entered his residence without a 10 United States District Court Northern District of California 11 warrant or consent in violation of the Fourth Amendment. Compl. ¶ 17; see Pl. Opp. at 9-11. 12 Warrantless searches are considered presumptively unreasonable. See Payton, 445 U.S. at 586. 13 “To make a lawful entry into a home in the absence of a warrant, officers must have either 14 probable cause and exigent circumstances or an emergency sufficient to justify the entry.” 15 Sandoval, 756 F.3d at 1161. The government bears the burden of demonstrating exigency 16 sufficient to overcome the presumption of unreasonableness. See Welsh v. Wisconsin, 466 U.S. 17 740, 749 (1984); Silva v. City of San Leandro, 744 F. Supp. 2d 1036, 1051 (N.D. Cal. 2010). Neither Plaintiff nor Defendants specifically address the search of the house with clarity in 18 19 their respective motions or other pleadings. In fact, there are inconsistencies even within each 20 party’s own allegations on this issue.4 Generally, Defendants contend that there is no evidence 21 Dep. Rodriguez entered the Aquino residence. See Def. Mot. at 23; Def. Opp. at 14; Def. Facts 22 17, 18, 28. However, Plaintiff offers Dep. Ainuu’s testimony that Dep. Rodriguez entered the 23 24 25 26 27 28 4 For example, Plaintiff’s Facts 75 and 76, which are undisputed by Defendants, state that after Dep. Rodriguez spoke with a neighbor, he released Plaintiff so that Plaintiff could go inside his house and retrieve some utility bills as “proof” that he lived on the property, which Plaintiff did. Dkt. No 40-2. However, Plaintiff disputes Defendants’ Facts 17, 18, and 28, which allege essentially the same facts, and instead assert here that it was Dep. Rodriguez who initially retrieved the utility bill from Plaintiff’s residence. Dkt. No. 41-1. 18 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 house and obtained a PG&E bill with Plaintiff’s name on it. Def. Fact 28; Ainuu Report, Ex. D at 2 9; Ainuu Depo. at 71:15-75:21. While there is also evidence to suggest Plaintiff retrieved the 3 utility bill, at a minimum, this fact, as well as the issue of whether Dep. Rodriguez entered and/or 4 searched Plaintiff’s home, is disputed, thus precluding summary judgment. Accordingly, 5 Defendants’ motion for summary judgment and Plaintiff’s motion for partial summary judgment 6 are DENIED. 7 iv. 8 9 Qualified Immunity The doctrine of qualified immunity “protects government officials 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.” Pearson, 555 U.S. at 231 (citing Harlow 11 United States District Court Northern District of California 10 v. Fitzgerald, 457 U.S. 800, 818 (1982)); Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1082 12 (9th Cir. 2013). The qualified immunity analysis is a two-step inquiry. “[A]n officer will be 13 denied qualified immunity in a § 1983 action only if (1) the facts alleged, taken in the light most 14 favorable to the party asserting injury, show that the officer’s conduct violated a constitutional 15 right, and (2) the right at issue was clearly established at the time of the incident such that a 16 reasonable officer would have understood her conduct to be unlawful in that situation.” Green, 17 751 F.3d at 1051-52; see also Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009). 18 At the summary judgment stage, “determinations that turn on questions of law, such as 19 whether an officer had probable cause or reasonable suspicion to support their actions, are 20 appropriately decided by the court.” Hopkins, 573 F.3d at 762-63. “However, a trial court should 21 not grant summary judgment when there is a genuine dispute as to the facts and circumstances 22 within an officer’s knowledge or what the officer and claimant did or failed to do.” Id. (internal 23 quotations omitted). 24 In the preceding analysis, the court determined that the question of whether Dep. 25 Rodriguez violated Plaintiff’s constitutional rights remains an open question for the jury with 26 respect to (1) the extended physical seizure of Plaintiff; (2) the use of force; and (3) the search of 27 28 19 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Plaintiff’s house, if any. The court also found that Dep. Rodriguez did violate Plaintiff’s 2 constitutional right with respect to the search of the wallet. However, Dep. Rodriguez may 3 nevertheless be entitled to qualified immunity if the court determines that a reasonable officer in 4 his situation would have believed his conduct in these circumstances was in line with established 5 law at the time. The court must therefore also engage the second step of the qualified immunity 6 analysis: whether the right at issue was “clearly established” at the time of the incident. Green, 7 751 F.3d at 1051-52 8 9 In order to decide whether a constitutional right is clearly established, the court must make two separate determinations: first, “whether the law governing the conduct at issue was clearly established,” and second, “whether the facts as alleged could support a reasonable belief that the 11 United States District Court Northern District of California 10 conduct in question conformed to the established law.” Id. at 1052; see also Maxwell, 708 F.3d at 12 1082 (holding that for a right to be considered clearly established, “its contours must be 13 sufficiently clear that a reasonable official would understand that what he is doing violates that 14 right.”). Both inquiries are questions of law that must be answered by the court. 15 In the instant case, the first requirement is satisfied as a matter of law. At the time of the 16 incident, it was clearly established that individuals may not be subjected to searches, seizure or the 17 use force without reasonable suspicion or exigent circumstances. See Green, 751 F.3d at 1052; 18 Mendez, 815 F.3d at 1187; U.S. Const. amend. IV. The law is also clear that a police officer’s use 19 of force on a suspect who does not pose an immediate threat to the officer or others is excessive. 20 Bryan, 630 F.3d at 826; See e.g., Chew, 27 F.3d at 1443 (“severe force” used to arrest a suspect 21 who did not pose an immediate threat to the safety of officers precluded summary judgment for 22 the officer, even though the suspect attempted to flee and was the subject of three outstanding 23 felony warrants). Thus, the remaining inquiry here is whether, under the facts alleged, Dep. 24 Rodriguez could have reasonably believed that he had sufficient grounds to detain Plaintiff at the 25 time, and that the force used was lawful under the circumstances. See Green, 751 F.3d at 1052 26 (citing Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011)). 27 28 20 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 As to the seizure and use of force, Defendants argue that Dep. Rodriguez had reasonable 2 suspicion to physically detain Plaintiff because Plaintiff became “confrontational,” refused to hand 3 over his identification, and was behaving erratically. Defs.’ Reply in Supp. of Def. Mot. (“Def. 4 Reply”) at 3-4, Dkt. No. 42. Defendants contend that, combined with the information already 5 known to Dep. Rodriguez at the time, “officer safety” warranted the use of handcuffs and the 6 exercise of reasonable force. Id. at 4. 7 However, there are disputed material facts here as to whether Plaintiff was, in fact, being 8 confrontational or erratic in his interaction with Dep. Rodriguez such that Dep. Rodriguez might 9 reasonably believe his actions were lawful. As discussed above, the record contains some evidence to support Defendants’ claims that Plaintiff was being uncooperative, but it also contains 11 United States District Court Northern District of California 10 evidence that Plaintiff was making efforts to comply with Dep. Rodriguez. See Rodriguez Depo. 12 at 90:13-92:21; 109:11-111:15; 132:12-19; 155:9-14; Aquino Decl. ¶¶ 14-15. There is also 13 conflicting evidence regarding how much force was actually used against Plaintiff. Resolving all 14 factual disputes in Plaintiff’s favor, it is not clear from the record that an officer under these 15 circumstances would believe that the seizure and use of force against Plaintiff - including the use 16 of a chokehold and handcuffing him - was lawful. See Sanders v. City of Fresno, 551 F. Supp. 2d 17 1149, 1166 (E.D. Cal. 2008), aff’d, 340 Fed. Appx. 377 (9th Cir. 2009) (“[W]hen the 18 circumstances show that a reasonable officer” would not perceive the need for force, “any force 19 used is constitutionally unreasonable.”). 20 Because the question of whether Dep. Rodriguez acted reasonably depends on factual 21 circumstances that are disputed in the record, this question cannot presently be determined by the 22 court, but must instead be resolved by a jury. See Johnson v. Bay Area Rapid Transit Dist., 724 23 F.3d 1159, 1180 (9th Cir. 2013); Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) 24 (explaining that factual findings regarding the circumstances within an officer’s knowledge and 25 the conduct of the parties involved must be made by a finder of fact); Deorle v. Rutherford, 272 26 F.3d 1272, 1281 (9th Cir. 2001) (clarifying that “[a] simple statement by an officer that he fears 27 28 21 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 for his safety or the safety others is not enough; there must be objective factors to justify such a 2 concern.”). Accordingly, with respect to the seizure and the use of force, the court cannot make a 3 determination regarding qualified immunity at this stage. Defendants’ motion for summary 4 judgment based on qualified immunity is therefore DENIED. As to the alleged search of Plaintiff’s house and wallet, Defendants’ analysis lacks any 5 6 mention of, or argument as to whether and on what grounds Dep. Rodriguez would be entitled to 7 qualified immunity for these searches. Consequently, finding no basis upon which to assess or 8 grant qualified immunity as to the search of the house of wallet, to the extent that Defendants 9 move for summary judgment on these grounds, the motion is also DENIED. 10 United States District Court Northern District of California 11 B. Municipal Liability Under Monell (Claim Two) Plaintiff’s second cause of action also alleges liability under § 1983 against Sgt. Murray 12 and Monterey County. Both parties move for summary judgment this claim. Municipalities 13 cannot be held vicariously liable for the actions of their employees. Monell v. Dep’t of Soc. 14 Servs. of City of New York, 436 U.S. 658, 691 (1978). For a city to be liable under § 1983, a 15 plaintiff must prove that a municipal “policy or custom” caused his constitutional injury. Id. at 16 694. It is insufficient for a plaintiff simply to identify an act “attributable to the municipality;” 17 rather, the plaintiff must “demonstrate that, through its deliberate conduct, the municipality was 18 the ‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. 19 Brown, 520 U.S. 397, 404 (1997) (quoting Monell, 436 U.S. at 694). The challenged policy may 20 be one of “action or inaction.” Waggy v. Spokane Cty. Washington, 594 F.3d 707, 713 (9th Cir. 21 2010). “Under an inaction policy claim, a plaintiff can allege that through its omissions the 22 municipality is responsible for a constitutional violation committed by one of its employees.” Id. 23 24 25 26 27 28 There are three ways a plaintiff may prove the existence of a policy of custom sufficient to prevail on a Monell claim against a municipality: (1) the plaintiff may prove that a public entity employee committed the alleged constitutional violation pursuant to a formal policy or a longstanding practice or custom, which constitutes the standard operating procedure of the local government entity; (2) the plaintiff 22 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 2 3 may establish that the individual who committed the constitutional tort was an official with “final policy-making authority” and that the challenged action itself thus constituted an act of official government policy; or (3) the plaintiff may prove that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action. 4 Avalos v. Baca, 596 F.3d 583, 587-88 (9th Cir. 2010); see also Menotti v. City of Seattle, 409 5 F.3d 1113, 1147 (9th Cir. 2005); Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). To 6 prove a policy or custom through ratification, a plaintiff must “show that the authorized 7 policymakers…have knowledge of the constitutional violation and actually approve of it.” Lytle 8 v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) (internal quotations omitted). 9 Here, Plaintiff fails to satisfy his burden to produce evidence creating a genuine issue of material fact on the Monell claim. Rather, Plaintiff simply states that the alleged “deprivations 11 United States District Court Northern District of California 10 imposed on [him] were the result of Monterey County’s own customs, practices, standards, 12 protocols, and procedures.” Pl. Mot. at 22. Despite asserting multiple times that “[t]he evidence 13 on this issue is clear, unequivocal and cannot be disputed,” Plaintiff offers no factual support for 14 this claim, points to no express county policy or custom, and provides no evidence showing even 15 an inference that such a policy exists. See id.; Pl. Opp. at 22.; see also Waggy, 594 F.3d at 713 16 (affirming summary judgment for county where plaintiff failed to provide any evidence of a 17 specific municipal policy, practice or custom). 18 The only specific facts Plaintiff relies on in support of this claim are that Sgt. Murray 19 counseled Dep. Rodriguez about later charging Plaintiff with a violation of Penal Code 148(a)(1), 20 and that Sgt. Murray, Cmdr. Thornburg, and Monterey County “affirmed” Dep. Rodriguez’s 21 conduct at issue here. See id.; Depo. of Sheriff’s Sgt. David Murray at 35:21-25; Avila Decl., Ex. 22 F, Dkt. No. 37. First, Plaintiff does not establish that Sgt. Murray was an official with 23 policymaking authority. See Gillette, 979 F.2d at 1346 (“Whether a particular official has final 24 policy-making authority is a question of state law.”). Second, even if he had made this showing, 25 Plaintiff further fails to demonstrate how Sgt. Murray or Cmdr. Thornburg’s general support for 26 Dep. Rodriguez regarding the events that transpired in this case amounts to knowledge and 27 28 23 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 approval of a constitutional violation. See Lytle, 382 F.3d at 987. Finally, the court has not found 2 that Plaintiff suffered a constitutional violation with respect to the use of force, but rather denied 3 summary judgment on the grounds that there remain disputes of material fact relevant to making 4 that determination that must be resolved by a jury. Consequently, even if Plaintiff had satisfied 5 his burden on this claim, he would still not be entitled to summary judgment because he would be 6 unable to show approval of a constitutional violation. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 7 1994) (“While the liability of municipalities doesn’t turn on the liability of individual officers, it is 8 contingent on a violation of constitutional rights.”). Accordingly, in the absence of any evidence upon which a jury could find liability under 9 Monell, Defendants’ motion for summary judgment on Plaintiff’s second cause of action is 11 United States District Court Northern District of California 10 GRANTED. Plaintiff’s motion for summary judgment is therefore DENIED. 12 C. Claims Alleging Racial Animus (Claims Three and Six) 13 The third and sixth causes of action allege that Dep. Rodriguez violated Plaintiff’s 14 constitutional and California statutory right to be free from racially discriminatory actions under 15 42 U.S.C. § 1981 and California Civil Code § 51.7. Defendants move for summary judgment on 16 the basis that Plaintiff failed to offer any evidence that the complained of acts were motivated by 17 racial animus. Def. Mot at 16-19. Because the court finds that the record lacks sufficient evidence 18 upon which a jury could find Dep. Rodriguez’s actions were motivated by racial animus or 19 intentional discrimination, Defendants are entitled to summary judgment. 20 Section 1981 guarantees that no person shall be denied equal rights under the law on 21 account of race. See Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989). Because claims 22 brought under § 1981 are grounded in the Equal Protection Clause of the Fourteenth Amendment, 23 an “essential element” of a valid § 1981 action is that the defendant “acted with the intent to 24 discriminate on the basis of race.” McKenzie v. City of Milpitas, 738 F. Supp. 1293, 1301 (N.D. 25 Cal. 1990), aff’d, 953 F.2d 1387 (9th Cir. 1992) (emphasis in original); Gen. Bldg. Contractors 26 Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) (“[Section] 1981, like the Equal Protection 27 28 24 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Clause, can be violated only by purposeful discrimination.”). To establish a claim under section 2 1981, the plaintiff must show overt acts by the defendant, “coupled with some direct evidence that 3 the defendant’s conduct was motivated by racial animus.” Evans, 869 F.2d at 1345. Where there 4 is direct evidence of discriminatory motive, such as statements that overtly implicate racial 5 prejudice, summary judgment on the question of racial bias generally is inappropriate. Metoyer v. 6 Chassman, 504 F.3d 919, 937 (9th Cir. 2007) (citing Cordova v. State Farm Ins. Cos., 124 F.3d 7 1145, 1149 (9th Cir.1997)). On the other hand, where there is only circumstantial evidence of 8 racial bias, that evidence must be “specific and substantial” in order to create a triable issue with 9 respect to whether defendant intended to discriminate. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998), as amended (Aug. 11, 1998). A plaintiff’s subjective belief that a 11 United States District Court Northern District of California 10 defendant’s conduct is motivated by discriminatory intent is not sufficient to defeat summary 12 judgment. See Gomez v. City of Fremont, 730 F.Supp.2d 1056, 1069 (N.D. Cal. 2010). 13 Similarly, California Civil Code § 51.7, or the Ralph Act, prohibits the use of force against 14 any individual on account of their race, color, ancestry, or national origin. Cal. Civ. Code 15 § 51.7(a) (“All persons within [California] have the right to be free from any violence, or 16 intimidation by threat of violence, committed against their persons or property” because of race). 17 In order to establish a § 51.7 claim, a plaintiff must show “(1) the defendant threatened or 18 committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of 19 plaintiff’s race; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial 20 factor in causing the plaintiff’s harm.” Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 21 4th 860, 880–81 (2007); see also Gomez, 730 F. Supp. 2d at 1069. 22 Summary judgment in § 1981 cases is governed by the burden shifting framework 23 established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Patterson v. McLean 24 Credit Union, 491 U.S. 164, 186-88 (1989). Under the McDonnell Douglas test, the plaintiff bears 25 the initial burden of establishing a prima facie case of racial discrimination. Patterson, 491 U.S. at 26 186. If the plaintiff succeeds in making a prima facie case, the burden shifts to the defendant “to 27 28 25 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 articulate some legitimate, nondiscriminatory reason” for the allegedly discriminatory conduct. 2 McDonnell Douglas, 411 U.S. at 802. If the defendant meets this burden, the responsibility shifts 3 back to the plaintiff to prove that the reasons offered by the defendant were actually pretext for 4 discrimination. Id. at 804-05. Notwithstanding the shifting burden, the plaintiff retains the 5 ultimate burden of proving that he was the victim of intentional discrimination. See St. Mary’s 6 Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993). 7 Here, Plaintiff provided no evidence that Dep. Rodriguez’s conduct was motivated by 8 racial bias. Instead, Plaintiff asserts a subjective belief that Dep. Rodriguez “accepted, without 9 question, the comments of an unknown white male” regarding a “suspicious” Hispanic male, while refusing to take Plaintiff, a Hispanic male, at his word that he resided on the property. Pl. 11 United States District Court Northern District of California 10 Opp. at 23. The speculative suggestion that “criminal behavior was erroneously presumed by 12 Rodriguez on the sole basis that [Plaintiff] was Hispanic and wearing a hoodie” fails to establish 13 discriminatory motive under § 1981 and is unsupported by the evidence. See id. The factual 14 reference to Plaintiff’s ethnicity in the regular course of an investigation - for example, to 15 physically describe a suspect - together with Dep. Rodriguez’s decision not to simply accept 16 Plaintiff’s statement as true without any further support, is insufficient to show racial animus. 17 Because a § 51.7 cause of action also requires a showing that the defendant was motivated 18 by racial animus when he used force against the plaintiff, this claim fails for the same reason. See 19 Austin B., 149 Cal. App. 4th at 880-81. In fact, outside of allegations contained in the Complaint, 20 Plaintiff makes no further reference to, or argument on behalf of, his § 51.7 claim. 21 Based on the foregoing, Defendant’s motion for summary judgment is GRANTED as to 22 Plaintiff’s third and sixth cause of action. See Gomez, 730 F. Supp. 2d at 1069 (granting summary 23 judgment in favor of defendant on § 1981 and § 51.7 claims where the plaintiff offered “only a 24 subjective belief, and not any evidence, that [the defendants] were motived by his ethnicity” when 25 they forcefully seized him while executing an arrest warrant). 26 27 28 26 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 D. State Law Claims 2 Plaintiff’s remaining causes of action allege claims under California state law against both 3 the individual Defendants and Monterey County. As an initial matter, while municipal liability is 4 precluded under § 1983 unless it adopted an unconstitutional policy or custom, California has 5 rejected the Monell rule and “imposes liability on counties under the doctrine of respondeat 6 superior for acts of county employees.” Robinson v. Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 7 2002); Cal. Gov’t. Code § 815.2(a); Knapps v. City of Oakland, 647 F.Supp.2d 1129, 1165 (N.D. 8 Cal. 2009) (citing Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1110 (2004)). Under 9 California law, a municipality is granted immunity from the acts of its employees “only where the public employee would also be immune.” Robinson, 278 F.3d at 1016. California denies 11 United States District Court Northern District of California 10 immunity to officers who use excessive force in arresting a suspect. Mary M. v. City of Los 12 Angeles, 54 Cal. 3d 202, 215 (1991) (“Since the enactment of the California Tort Claims Act in 13 1963, a governmental entity can be held vicariously liable when a police officer acting in the 14 course and scope of employment uses excessive force or engages in assaultive conduct.”). Thus, 15 for each of the claims listed below, whenever the motion for summary judgment against the 16 officers is granted, the motion as to the City will be granted as well. 17 18 i. Assault and Battery (Claim Four) Plaintiff’s forth cause of action for assault and battery under California law is governed by 19 the same analysis as his §1983 claim for excessive force. See Nelson v. City of Davis, 709 F. 20 Supp. 2d 978, 992 (E.D. Cal. 2010) (“Because the same standards apply to both state law assault 21 and battery and Section 1983 claims premised on constitutionally prohibited excessive force, the 22 fact that Plaintiff’s § 1983 claims under the Fourth Amendment survive summary judgment also 23 mandates that the assault and battery claims similarly survive.”). 24 Here, due to unresolved questions of fact, the court concluded that judgment as a matter of 25 law was improper on the issue of excessive force. Because neither Plaintiff nor Defendants are 26 entitled to summary judgment on the excessive force claim, they are not entitled to summary 27 28 27 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 judgment on the assault and battery claim. See Blankenhorn v. City of Orange, 485 F.3d 463, 487 2 (9th Cir. 2007) (reversing summary judgment for assault and battery claim when summary 3 judgment was inappropriate on excessive force claim); Saman v. Robbins, 173 F.3d 1150, 1157 n. 4 6 (9th Cir. 1999) (police officer commits battery only when excessive force is used) (citing Cal. 5 Penal Code § 835(a)). Accordingly, both Defendants’ motion for summary judgment and 6 Plaintiff’s motion for partial summary judgment are DENIED. 7 8 ii. Intentional/Negligent Infliction of Emotional Distress (Claims Five and Nine) Plaintiff’s fifth and ninth causes of action allege intentional and negligent infliction of emotional distress against Dep. Rodriguez. With respect to the IIED claim, Plaintiff must prove: 10 (1) “extreme and outrageous conduct by the defendant with the intention of causing, or reckless 11 United States District Court Northern District of California 9 disregard of the probability of causing, emotional distress;” (2) that the plaintiff actually suffered 12 severe emotional distress; and (3) that the defendant’s outrageous conduct was the “actual and 13 proximate” cause of the plaintiff’s emotional distress. Catsouras v. Dep’t of Cal. Highway 14 Patrol, 181 Cal. App. 4th 856, 874-75 (2010). 15 A claim for NIED, on the other hand, is “not an independent tort, but rather is derived from 16 the tort of negligence.” Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal.3d 583, 588 17 (1989). Thus, a claim for NIED requires the plaintiff to establish the traditional elements of duty, 18 breach of duty, causation, and damages, as well as show that he or she has suffered “serious” 19 emotional distress. Wong v. Tai Jing, 189 Cal. App. 4th 1354 (2010). 20 Here, Defendants move for summary judgment on the grounds that Dep. Rodriguez’s use 21 of force was reasonable under the circumstances and certainly did not go “beyond all possible 22 bounds of decency.” Def. Mot. at 18 (quoting Rest. 2d Torts, § 46); see also Ross v. Creel 23 Printing & Publ’g Co., 100 Cal. App. 4th 736, 744 (2002). While a law enforcement officer’s 24 unreasonable use of force could be considered extreme and outrageous, here, Plaintiff has failed to 25 satisfy the other elements of a claim for IIED or NIED. Specifically, Plaintiff’s pleadings are 26 devoid of any evidence establishing that Plaintiff suffered emotional distress of any kind, much 27 28 28 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 less “serious” or “severe” distress. In fact, other than its inclusion in the section heading, Plaintiff 2 did not present any arguments or evidence in support of these causes of action at all. See Pl. Opp. 3 at 24-25. Defendants’ motion for summary judgment on the fifth and ninth causes of action is 4 therefore GRANTED. 5 iii. 6 7 The Bane Act (Claim Seven) Plaintiff’s seventh cause of action alleges that Defendants are liable under California Civil Code § 52.1, or the Bane Act, for violations of his federal constitutional and statutory rights. 8 The Bane Act provides a claim for relief “against anyone who interferes, or tries to do so, 9 by threats, intimidation, or coercion, with an individual’s exercise or enjoyment of rights secured by federal or state law.” Jones v. Kmart Corp., 17 Cal. 4th 329, 331 (1998). “The essence of a 11 United States District Court Northern District of California 10 Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation 12 or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to 13 do under the law or [forced] the plaintiff to do something that he or she was not required to do 14 under the law. Austin B., 149 Cal. App. 4th at 883. When a § 52.1 claim is premised on the 15 violation of a constitutional right, the court must look to the elements of the constitutional claim to 16 determine whether the § 52.1 claim is meritorious. See Cameron v. Craig, 713 F.3d 1012, 1022 17 (9th Cir. 2013) (explaining that because the California right asserted by plaintiff was the same as 18 the rights guaranteed by the Fourth Amendment, resolution of the plaintiff’s excessive force claim 19 under § 52.1 was the same as under the § 1983 claim.). 20 Here, Plaintiff’s claim is premised on Defendants’ alleged unlawful seizure and use of 21 excessive force. As to the seizure, Defendants’ motion for summary judgment relies on California 22 Penal Code § 847, which states in relevant part that a law enforcement officer shall not be held 23 civilly liable for false arrest when the officer, “acting within the scope of his or her authority” 24 made a lawful arrest or “had reasonable cause to believe the arrest was lawful.” Cal. Pen. Code § 25 847(b); see Blankenhorn, 485 F.3d at 486-87. Pursuant to the analysis set forth with respect to 26 Plaintiff’s Fourth Amendment claims, the court finds that upon his initial encounter with Plaintiff, 27 28 29 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 Dep. Rodriguez had good cause to “seize” Plaintiff for investigatory purposes. Thus, to the extent 2 that Plaintiff’s § 52.1 claim is based on this initial seizure, Defendants’ motion is GRANTED. 3 However, there remain disputed facts upon which a jury could find that Dep. Rodriguez 4 did not have reasonable cause to believe the seizure was lawful during the subsequent altercation 5 and detention. See § 836(a)(1); Blankenhorn, 485 F.3d at 486-87. A triable issue also remains as 6 to whether Dep. Rodriguez’s tactics amounted to excessive force. See Knapps, 647 F. Supp. 2d at 7 1168 (“The elements of a section 52.1 excessive force claim are essentially identical to those of a 8 § 1983 excessive force claim.”). Accordingly, except as specified above, both Defendants’ motion 9 for summary judgment and Plaintiff’s motion for partial summary judgment on the seventh cause of action are DENIED. 11 United States District Court Northern District of California 10 iv. 12 Negligence (Claim Eight) Plaintiff’s eight cause of action for negligence asserts that Dep. Rodriguez failed to 13 exercise due care when executing a seizure of his person, causing him “unnecessary physical 14 harm” and distress. Compl. ¶ 24. Both parties move for summary judgment on this claim. 15 “In order to prove facts sufficient to support a finding of negligence, a plaintiff must show 16 that the defendant had a duty to use due care, that he breached that duty, and that the breach was 17 the proximate or legal cause of the resulting injury.” Hayes v. Cnty. of San Diego, 57 Cal. 4th 18 622, 629 (2013) (citations omitted). Law enforcement officers have a duty to act reasonably when 19 using force, which must be determined in light of the totality of the circumstances. Id. Therefore, 20 to prevail on a claim for negligence, a plaintiff must demonstrate that the officers “acted 21 unreasonably and that the unreasonable behavior harmed” the plaintiff. Price v. Cnty. of San 22 Diego, 990 F. Supp. 1230, 1245 (S.D. Cal. 1998)). 23 Because a jury could find that Dep. Rodriguez acted unreasonably in his use of force, and 24 that this force resulted in physical injury to Plaintiff, summary judgment in favor of either party on 25 the issue of negligence is improper at this time. Defendants’ motion for summary judgment and 26 Plaintiff’s motion for partial summary judgment are therefore both DENIED. 27 28 30 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 v. Conversion of Property (Claim Ten) 2 The tenth cause of action alleges that Dep. Rodriguez removed a $50.00 bill from 3 Plaintiff’s wallet in violation of California law. See Aquino Decl. ¶ 5-6. Under California law, 4 the tort of conversion is the wrongful exercise of dominion over another’s personal property. See 5 Shopoff & Cavallo LLP v. Hyon, 167 Cal. App. 4th 1489, 1507-08 (2008). A claim for 6 conversion requires (1) plaintiff’s ownership or right to possession of the property at issue; (2) the 7 defendant’s conversion of the property by a wrongful act; and (3) damages. Spates v. Dameron 8 Hosp. Assn., 114 Cal. App. 4th 208, 221 (2003). Defendants argue they are entitled to summary 9 judgment because Plaintiff fails to provide any factual basis for his belief that Dep. Rodriguez 10 United States District Court Northern District of California 11 took the money from his wallet. The court agrees with Defendants. Plaintiff submits evidence suggesting that on 12 November 4, 2013, he had $250 in cash in his wallet. Aquino Decl. ¶ 30, Ex. C, Dkt. 41-2; 13 Aquino Depo. at 149:1-23, Dkt 41-3. But the record contains no evidence that Dep. Rodriguez 14 removed $50.00 from the wallet. In fact, even though Plaintiff’s pleadings continually assert that 15 the wallet “only contained $200 when it was returned to him,” this fact is not included in either 16 Plaintiff’s written declaration or in his deposition testimony. See Pl. Opp. at 25; Aquino Decl., 17 Dkt. 41-2; Aquino Depo. at 148:7-150:11. And even if it were included, that alone is insufficient 18 to show that Dep. Rodriguez - or anyone - took the money through a “wrongful act.” Plaintiff 19 admits that he did not observe Dep. Rodriguez open his wallet at any time. Aquino Depo. at 20 148:7-12. Because Plaintiff has failed to satisfy the second element of a conversion cause of 21 action, and there remains no disputed factual basis upon which a jury could find otherwise, 22 summary judgment is GRANTED in favor of Defendants on the conversion claim. 23 vi. Trespass (Claim Eleven) 24 Plaintiff’s eleventh cause of action alleges that Dep. Rodriguez trespassed on his property 25 under California law when he entered and searched his property without consent. Plaintiff brings 26 this claim against Dep. Rodriguez and Monterey County. Defendants again assert that Plaintiff 27 28 31 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 lacks evidence the Dep. Rodriguez ever entered his property, and argue that even if he had, Dep. 2 Rodriguez is entitled to immunity under California Government Code Section 820.2. Def. Mot. at 3 23. Both parties move for summary judgment on this claim. 4 Under Section 820.2, “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, 6 whether or not such discretion be abused.” Cal. Gov’t Code § 820.2. For immunity purposes, 7 whether an act may be considered “discretionary” generally turns on whether it required “personal 8 deliberation, decision and judgment,” or rather whether it amounted only to “obedience to orders 9 or the performance of a duty in which the officer is left no choice of his own,” and is thus more 10 appropriately considered “ministerial.” McCorkle v. City of Los Angeles, 70 Cal. 2d 252, 261 11 United States District Court Northern District of California 5 (1969); see also Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998). California 12 courts also specifically distinguish between a law enforcement officer’s discretion in undertaking 13 an investigation and his or her negligence in conducting it. See McCorkle, 70 Cal.2d at 261. 14 Section 820.2 immunity “provides complete protection for the decision to investigate ... and for 15 actions necessary to make a meaningful investigation,” but does not extend to “non-discretionary 16 actions or to at least some intentional torts committed in the course of making the investigation.” 17 Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000) (citing Newton v. Cnty. of Napa, 217 18 Cal.App.3d 1551 (1st Dist. 1990). 19 Here, Dep. Rodriguez’s entry onto Plaintiff’s property was part of his decision to 20 investigate the report of a suspicious person in the house, and was necessary to undertaking that 21 investigation. Based on his judgment and personal assessment of the circumstances, it was within 22 Dep. Rodriguez’s discretion to initiate this investigation by entering the property. While this does 23 not preclude him from liability for subsequent acts where he may be found to have used excessive 24 force or other improper means during the course of the investigation, section 820.2 does provide 25 immunity for the preliminary decisions involved in initiating the investigation itself. See Sullivan 26 v. City of San Rafael, No. C 12-1922 MEJ, 2013 WL 3357933, at *14 (N.D. Cal. July 2, 2013) 27 28 32 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 (explaining that an officer’s “initial, considered decision to enter [an individual’s] home may be 2 immunized by section 820.2, but the decisions made during the course of the subsequent operation 3 might not be.”) (quoting Obas v. Cnty. of Monterey, No. 09-CV-05540-LHK, 2011 WL 738159, 4 at *12 (N.D. Cal. Feb. 22, 2011) aff’d, 504 F. App’x 558 (9th Cir. 2013)). 5 Because the court finds that Dep. Rodriguez is entitled to immunity under section 820.2, 6 Defendants’ motion for summary judgment on Plaintiff’s eleventh cause of action for trespass is 7 GRANTED, and Plaintiff’s motion for partial summary judgment is DENIED. 8 9 vii. Malicious Prosecution (Claim Twelve) Finally, Plaintiff’s twelfth cause of action alleges malicious prosecution against Dep. Rodriguez and Monterey County. Defendants move for summary judgment on the grounds that 11 United States District Court Northern District of California 10 they are entitled to immunity under California Government Code section 821.6. 12 Section 821.6 provides immunity to public employees for actions taken in preparation for 13 formal proceedings, including actions related to investigations. Paterson v. City of Los Angeles, 14 174 Cal. App. 4th 1393, 1405 (2009). The “principal function” of section 821.6 is “to provide 15 relief from malicious prosecution.” Blankenhorn, 485 F.3d at 487-88 (citing Kayfetz v. 16 California, 156 Cal.App.3d 491, 497 (1984). The protection also extends to actions “incidental to 17 the investigation of crimes.” See Amylou R. v. Cnty. of Riverside, 28 Cal. App. 4th 1205, 1211 18 (1994). Under section 821.6, “[a] public employee is not liable for injury caused by his instituting 19 or prosecuting any judicial or administrative proceeding within the scope of his employment, even 20 if he acts maliciously and without probable cause.” Cal. Gov’t Code § 821.6. California courts 21 interpret section 821.6 broadly “in furtherance of its purpose to protect public employees in the 22 performance of their prosecutorial duties from the threat of harassment through civil suits.” Gillan 23 v. City of San Marino, 147 Cal. App.4th 1033, 1048 (2007). 24 In the instant case, Dep. Rodriguez is entitled to immunity under section 821.6. To the 25 extent that Plaintiff maintains any allegations pertaining to malicious prosecution, such allegations 26 fall within the purview of section 812.6’s protections for acts related to investigations and 27 28 33 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 prosecutions of crimes. But even without immunity, Plaintiff provides no evidence and makes no 2 further argument concerning the claim for malicious prosecution against Dep. Rodriguez or 3 Monterey County. Plaintiff did not respond to or oppose Defendants’ motion for summary 4 judgment on this claim, nor was the claim mentioned in Plaintiff’s motion for partial summary 5 judgment. Plaintiff fails to present evidence that he was in fact prosecuted or that Defendants 6 possessed a malicious motive in pursing charges against him. See Usher v. City of Los Angeles, 7 828 F.2d 556, 562 (9th Cir. 1987) (“In California, the elements of malicious prosecution are (1) 8 the initiation of criminal prosecution, (2) malicious motivation, and (3) lack of probable cause.”). 9 Accordingly, Defendants’ motion for summary judgment is GRANTED. 10 United States District Court Northern District of California 11 IV. CONCLUSION Based on the foregoing, Defendants’ Motion for Summary Judgment (Dkt. No. 38) and 12 Plaintiff’s Motion for Partial Summary Judgment (Dkt. No 37) are GRANTED IN PART and 13 DENIED IN PART as follows: 14 1. As to the first cause of action asserting violations of the Fourth Amendment under 15 42 U.S.C. § 1983 against Dep. Rodriguez: Defendants’ motion is GRANTED to the extent it is 16 based on (1) the initial investigatory detention, and (2) the “search” of Plaintiff’s yard, but is 17 DENIED on all other grounds. Plaintiff’s motion as to this claim is GRANTED to the extent it is 18 based on the search of his wallet, and is DENIED in all other respects. 19 2. As to the second cause of action asserting violations of the Fourth Amendment 20 under 42 U.S.C. § 1983 (Monell) against Sgt. Murray and Monterey County: Defendants’ motion 21 is GRANTED; Plaintiff’s motion is DENIED. 22 23 24 25 26 27 28 3. Defendants’ motion is GRANTED as to the third case of action for violation of 42 U.S.C. § 1981 against Dep. Rodriguez. 4. As to the fourth cause of action asserting assault and battery against Dep. Rodriguez: Defendants’ motion is DENIED; Plaintiff’s motion is also DENIED. 5. Defendants’ motion is GRANTED as to the fifth cause of action for intentional 34 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT 1 2 3 4 infliction of emotional distress against Dep. Rodriguez. 6. Defendants’ motion is GRANTED as to the sixth cause of action for violation of California Civil Code § 51.7 against Dep. Rodriguez. 7. As to the seventh cause of action asserting violation of the Bane Act (Cal. Civ. 5 Code § 52.1) against all Defendants: Defendants’ motion is GRANTED to the extent it is 6 premised on the initial investigatory seizure, but DENIED in all other respects; Plaintiff’s motion 7 is DENIED. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 8. As to the eighth cause of action asserting negligence against all Defendants: Defendants’ motion is DENIED; Plaintiff’s motion is also DENIED. 9. Defendants’ motion is GRANTED as to the ninth cause of action for negligent infliction of emotional distress against Dep. Rodriguez. 10. Defendants’ motion is GRANTED as to the tenth cause of action for conversion of property against Dep. Rodriguez. 11. As to the eleventh cause of action for trespass against Dep. Rodriguez and Monterey County: Defendants’ motion is GRANTED; Plaintiff’s motion is DENIED. 12. Defendants’ motion is GRANTED as to the twelfth cause of action for malicious prosecution against Dep. Rodriguez and Monterey County. 18 19 20 21 22 IT IS SO ORDERED. Dated: September 29, 2016 ______________________________________ EDWARD J. DAVILA United States District Judge 23 24 25 26 27 28 35 Case No.: 5:14-cv-03387-EJD ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

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