Daughtery v. Wilson et al, No. 3:2008cv00408 - Document 109 (S.D. Cal. 2009)

Court Description: REPORT AND RECOMMENDATION For Order Granting Defendants' Motion For Summary Judgment (Doc. 65 ) And Denying Lemus' Motion For Summary Judgment (Doc. 82 ) And ORDER Denying Plaintiff's Motion For Personnel Records (Doc. 72 ): It is r ecommended that the District Court issue an Order: (1) approving and adopting this Report and Recommendation, (2) granting the Officers' Motion, (3) denying the Lemus Motion, and (4) denying Plaintiff's Rule 56(f) motion. Objections to R&R due by 7/6/2009. Replies due by 7/27/2009. Signed by Magistrate Judge Barbara Lynn Major on 6/15/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (jrl).

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Daughtery v. Wilson et al Doc. 109 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 WILLIAM JOHN DAUGHTERY, CDCR #F- ) 79985, ) ) Plaintiff, ) v. ) ) DENNIS WILSON, et al., ) ) Defendants. ) ) ) ) Civil No. 08cv0408-WQH (BLM) REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. No. 65] and DENYING LEMUS’ MOTION FOR SUMMARY JUDGMENT [Doc. No. 82] and ORDER DENYING PLAINTIFF’S MOTION FOR PERSONNEL RECORDS [Doc. No. 72] 17 18 This Report and Recommendation is submitted to United States 19 District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b) and 20 Local Civil Rules 72.1(c) and 72.3(f) of the United States District 21 Court for the Southern District of California. 22 On March 3, 2008, Plaintiff William John Daughtery, a state 23 prisoner proceeding pro se and in forma pauperis, filed this civil 24 rights suit against Defendants Wilson, Tagaban, Griffin and Lemus 25 (collectively “the Defendants”) under 42 U.S.C. § 1983. 26 1. Doc. No. On November 19, 2008, Defendants filed a Motion for Summary 27 28 -1- 08cv0408-WQH (BLM) Dockets.Justia.com 1 Judgment (“Officers’ Mot. for Summ. J.”).1 Doc. No. 65. On January 2 9, 2009, Defendant Lemus filed an individual Motion for Summary 3 Judgment (“Lemus’ Mot. for Summ. J.”).2 Doc. No. 82. 4 The Court has considered Plaintiff’s First Amended Complaint 5 [Doc. No. 25] (“FAC”), the Officers’ Motion [Doc. No. 65], Plain- 6 tiff’s opposition to the Officers’ Motion [Doc. No. 95] (“Pl.’s 7 Opp’n to Officers’ Mot.”), Defendants’ reply [Doc. No. 98] (“Reply 8 on Officers’ Mot.”), Plaintiff’s sur-reply [Doc. No. 103] (“Pl.’s 9 Sur-reply on Officers’ Mot.”), Defendants’ sur-reply [Doc. No. 108] 10 (“Officers’ Sur-reply”), Lemus’ Motion [Doc. No. 82], Plaintiff’s 11 opposition to Lemus’ Motion [Doc. No. 87] (“Pl.’s Opp’n to Lemus’ 12 Mot.”), Lemus’ reply [Doc. No. 96] (“Reply on Lemus’ Mot.”), 13 Plaintiff’s sur-reply to Lemus’ Motion [Doc. No. 106] (“Pl.’s Sur- 14 reply on Lemus’ Mot.”), and Lemus’ Sur-reply [Doc. No. 107] (“Lemus’ 15 Sur-reply”). 16 the Officers’ Motion be GRANTED and Lemus’ Motion be DENIED. For the following reasons, the Court RECOMMENDS that 17 18 19 20 BACKGROUND A. Factual Background This case stems from a March 9, 2006 “buy bust” operation by the San Diego Police Department. Aff. of Pl. Opposing Officers’ 21 22 23 24 25 26 27 28 1 At that time, Defendant Wilson had not been served with the Complaint, but joined the motion as an “un-served, non-party defendant.” See Officers’ Mot. for Summ. J. at 8. Wilson was served on January 7, 2009. Doc. No. 79. On February 17, 2009, Wilson filed his answer to Plaintiff’s First Amended Complaint [Doc. No. 97] and the Court subsequently granted Wilson’s request to properly join the Officers’ Motion [Doc. No. 100]. 2 After the summary judgment motions were filed and again after Defendant Wilson joined in the Officers’ Motion, the Court provided Plaintiff with notification of the requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). Doc. Nos. 84 and 101. -2- 08cv0408-WQH (BLM) 1 Mot. for Summ. J. [Doc. No. 103-2] (“Pl.’s Aff.”) at 2.3 2 evening, Detective Lemus was operating in an undercover capacity 3 attempting to purchase narcotics from street level dealers in an 4 area known for drug trafficking activity. 5 Supporting Lemus’ Mot. for Summ. J. [Doc. No. 82-3] (“Lemus’ Decl.”) 6 at ¶ 4. 7 Narcotics Division were in communication with Lemus and located 8 nearby. 9 cocaine from him for twenty dollars. That Decl. of Roberto Lemus Other members of the San Diego Police Department’s Central Id. Lemus approached Plaintiff and purchased “rock” Id. ¶ 5. Lemus then walked 10 away and communicated a description of Plaintiff to the other 11 officers. 12 Plaintiff until he saw a marked police car approach Plaintiff. 13 ¶¶ 7-8. 14 Id. ¶¶ 5-6. Lemus states that he did not lose sight of Id. The parties agree that the officer who arrived and first 15 contacted Plaintiff was Officer Wilson. 16 Officers’ Mot., Ex. E [Doc. No. 98-3](“Ct. Appeal Order”)4 at 6. 17 Wilson took Plaintiff to the ground and, with his arm around 18 Plaintiff’s throat, ordered Plaintiff to spit out what was in his 19 mouth. 20 so. 21 arrived and struck Plaintiff in the shoulder repeatedly with her 22 flashlight. 23 Plaintiff. FAC at 4; Ct. Appeal Order at 6-7. Ct. Appeal Order at 7. Id.; FAC at 4-5. FAC at 4; Reply on Plaintiff refused to do Shortly thereafter, Officer Tagaban The officers subsequently arrested Id. 24 25 26 27 28 3 Due to some discrepancies in the pagination of documents, the Court cites to the page numbers affixed to the top of the page by the Court’s electronic filing system. 4 As discussed supra, the Court grants Defendants’ request to take judicial notice of the Court of Appeal’s opinion. -3- 08cv0408-WQH (BLM) 1 1. Plaintiff’s Contentions 2 Plaintiff contends that “without giving any orders or any 3 preamble, Wilson exited his car, walked up to [Plaintiff] and 4 grabbed [him] by the front of the throat.” 5 According 6 Plaintiff’s throat and then “adjusted his grip and moved to a 7 position where he continued choking [Plaintiff] from behind.” 8 Wilson then kicked Plaintiff’s legs out from under him and tripped 9 him to the ground. Id. Plaintiff states that he “neither provoked, to Plaintiff, Wilson “exerted Pl.’s Aff. at 2. strong on Id. 10 instigated or resisted the attack.” 11 complete submission, Wilson demanded he spit out any possible 12 evidence he had in his mouth and banged Plaintiff’s forehead on the 13 concrete sidewalk for approximately two minutes. 14 Id. at 4. pressure” Yet, despite his Id. at 2-3. At that point, Tagaban arrived in full uniform and driving a 15 marked police vehicle. Id. at 3. Plaintiff submits that Tagaban 16 immediately began to beat his head and left shoulder approximately 17 twelve times with a large metal flashlight and that Officers Wilson 18 and Tagaban shouted “spit it out” at him during the alleged beating. 19 Id. 20 beating and choking.” 21 injury to his forehead, knees, elbows, left shoulder and neck. 22 at 2. Thereafter, Plaintiff “lost consciousness from the combined Id. He also contends he suffered serious Id. 23 During this altercation, Plaintiff asserts that Lemus and 24 Griffin were near the opposite side of the intersection, but neither 25 took any action “to halt the vicious beating.” Id. at 3-4. 26 2. Defendants’ Contentions 27 According to Defendants, upon arriving at the scene, Wilson 28 used his car to block Plaintiff’s movement and ordered him to stop -4- 08cv0408-WQH (BLM) 1 but Plaintiff refused to do so. 2 observed that Plaintiff had quickened his pace and appeared to be 3 chewing on something so Wilson grabbed Plaintiff and took him to the 4 ground. 5 he could apply a carotid restraint and disarm Plaintiff if he had 6 a weapon (Plaintiff’s hands were underneath him at that time). 7 Because Wilson believed Plaintiff was chewing drugs in an attempt 8 to destroy evidence, Wilson ordered Plaintiff to spit them out. Id. 9 at 6-7. Id. Ct. Appeal Order at 6. Wilson Wilson placed his arm around Plaintiff’s neck so that Id. 10 When Tagaban arrived, she saw that Plaintiff was resisting 11 arrest and that she could not see his hands so she ordered him to 12 put his hands behind his back. 13 complying with her commands,” she twice struck him on the shoulder 14 with her flashlight. Id. When he refused to comply, she struck him 15 several more times. 16 bindle but still refused to put his hands behind his back so Tagaban 17 struck him two more times. 18 handcuff Plaintiff. 19 hand a prerecorded $20 bill used by Lemus in the drug transaction. 20 Id. 21 B. Id. Id. Id. at 7. “To distract him into Plaintiff then spit out a chewed plastic Id. The officers were then able to They subsequently pried from Plaintiff’s Procedural History 22 Plaintiff was charged with one count of selling or furnishing 23 a controlled narcotic substance and one count of possession or 24 purchase of cocaine base for sale. 25 Officers’ Mot. for Summ. J., Ex. A (“Criminal Compl.”) at 5. 26 Plaintiff filed a pre-trial motion to suppress evidence under 27 California Penal Code § 1538.5 “for certain tangible and intangible 28 things seized” from him without a warrant and in violation of the -5- Lodgment of Evid. Supporting 08cv0408-WQH (BLM) 1 Fourth Amendment. Id., Ex. B (“Order Denying Mot. to Suppress”) at 2 9. 3 Court conducted a two-day hearing. 4 officers 5 presented the prosecution’s theory of the case. 6 four other witnesses, including an eye-witness to the alleged 7 beating, also testified and they presented the Plaintiff’s theory. 8 Id.; Pl.’s Aff. at 5. The court made crucial credibility determina- 9 tions and then denied the motion to suppress evidence in a written The matter was fully briefed and the San Diego County Superior from the San Diego Id. Police During the hearing, four Department Id. testified and Plaintiff and 10 opinion. Order Denying Mot. to Suppress at 9-13. Plaintiff 11 subsequently was found guilty of both counts and sentenced to a term 12 of eight years in prison. Ct. Appeal Order at 4-5. 13 Plaintiff appealed to the California Court of Appeal, Fourth 14 Appellate District, Division One challenging the denial of the 15 section 1538.5 motion to suppress evidence and a related motion in 16 limine. Id. The court affirmed the judgment. Id. at 18. 17 Plaintiff filed the instant civil rights case on March 3, 2008. 18 Doc. No. 1. In his FAC, Plaintiff alleges that on March 9, 2006, 19 Officers Wilson and Tagaban violated his constitutional rights when 20 they used excessive force to arrest him. 21 alleges that Sergeant Griffin and Detective Lemus were “integral 22 participant[s]” in the allegedly unlawful beating because they 23 witnessed the attack but did nothing to intervene. 24 FAC at 4-6. He further Id. at 2, 5. LEGAL STANDARD 25 Summary judgment is appropriate if there is no genuine issue 26 as to any material fact, and the moving party is entitled to a 27 judgment as a matter of law. 28 party has the initial burden of demonstrating that summary judgment Fed. R. Civ. P. 56(c). -6- The moving 08cv0408-WQH (BLM) 1 is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The 2 burden then shifts to the opposing party to provide admissible 3 evidence beyond the pleadings to show that summary judgment is not 4 appropriate. 5 mere allegation or denials of his pleading, but must set forth 6 specific facts showing that there is a genuine issue for trial.” 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 8 or issue is genuine ‘if the evidence is such that a reasonable jury 9 could return a verdict for the nonmoving party.’” Villiarimo v. 10 Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting 11 Anderson, 477 U.S. at 248). 12 make credibility determinations on a motion for summary judgment; 13 rather, the inferences to be drawn from the underlying facts must 14 be viewed in the light most favorable to the nonmoving party. 15 Anderson, 477 U.S. at 255; Fairbank v. Wunderman Cato Johnson, 212 16 F.3d 528, 531 (9th Cir. 2000). Id. at 322-24. The opposing party “may not rest upon “A fact The court may not weigh evidence or 17 Section 1983 imposes two essential proof requirements upon a 18 claimant: (1) that a person acting under color of state law 19 committed the conduct at issue, and (2) that the conduct deprived 20 the claimant of some right, privilege, or immunity protected by the 21 Constitution or laws of the United States. 22 Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other 23 grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986). 24 deprives another “of a constitutional right, within the meaning of 25 section 1983, if he does an affirmative act, participates in 26 another’s affirmative acts, or omits to perform an act which he is 27 legally required to do that causes the deprivation of which [the 28 plaintiff complains].” See 42 U.S.C. § 1983; A person Johnson v. Duffy, 588 F.2d 740, 743 (9th -7- 08cv0408-WQH (BLM) 1 Cir. 1978). 2 focus 3 defendant whose acts or omissions are alleged to have caused a 4 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th 5 Cir. 1988); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). 6 DISCUSSION on “The inquiry into causation must be individualized and the duties and responsibilities of each individual 7 In the Officers’ Motion, Defendants argue that judgment in 8 their favor is warranted on three grounds. Officers’ Mot. for Summ. 9 J.5 at 9-11. First, Defendants contend that the merits of Plain- 10 tiff’s constitutional claims were adjudicated in the California 11 Superior Court and the California Court of Appeal. 12 Thus, Defendants argue that Plaintiff is barred from relitigating 13 his constitutional claims in this case under the doctrines of issue 14 and claim preclusion. 15 tiff’s Fourteenth Amendment claim fails as a matter of law because 16 the claim should have been pled and analyzed under the Fourth 17 Amendment. 18 entitled to qualified immunity given the substantial authority 19 granted to police officers at the scene of an arrest. Id. Id. at 10-11. Id. at 9-10. Second, Defendants submit that Plain- Finally, Defendants argue that they are Id. at 11. 20 In his individual motion, Lemus contends that Plaintiff’s 21 failure to intercede claim fails as a matter of law because Lemus 22 was not present during the alleged use of excessive force and, 23 therefore, did not have the opportunity to intercede. 24 for Summ. J. at 5. Lemus’ Mot. 25 26 27 28 5 In citing to the “Officers’ Mot. for Summ. J.” or “Lemus’ Mot. for Summ. J.,” the Court is indicating the respective memoranda accompanying these motions. -8- 08cv0408-WQH (BLM) 1 A. Judicial Notice 2 As an initial matter, Defendants request that the Court take 3 judicial notice under Federal Rule of Evidence 201 of the “Complaint 4 and Information, Order Denying Defendant’s Motion to Suppress, Jury 5 Verdict and Sentencing Order in People v. Daughtery, California 6 Superior Court Case No. SDC 197549, and the Court of Appeal Opinion 7 regarding that California criminal case and proceeding.” 8 Req. for Jud. Notice Supporting Officers’ Mot. for Summ. J. at 1. 9 Generally, courts “will not consider facts outside the record Defs.’ 10 developed before the district court.” United States ex rel. 11 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 12 248 (9th Cir. 1992). 13 ings in other courts, both within and without the federal judicial 14 system, if those proceedings have a direct relation to the matters 15 at issue.” Id. (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 16 F.2d 1169, 1172 (10th Cir. 1979) (internal quotations omitted)). 17 Because the issues and claims adjudicated in the state court are 18 “directly related” to the instant case, the Court takes judicial 19 notice of the state court proceedings in People v. Daughtery, 20 California Superior Court Case No. SCD 197549, and People v. 21 Daughtery, Court of Appeal Case No. D051313. 22 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of prior 23 state court proceedings in determining whether to apply issue and 24 claim preclusion). 25 B. However, courts “may take notice of proceed- See Holder v. Holder, Issue and Claim Preclusion as to Plaintiff’s Claim of Excessive Use of Force During the March 9, 2006 Arrest 26 27 In Graham v. Connor, 490 U.S. 386, 394 (1989), the Supreme 28 Court held that an excessive force claim arising in the context of -9- 08cv0408-WQH (BLM) 1 an arrest “is most properly characterized as one invoking the 2 protections of the Fourth Amendment, which guarantees citizens the 3 right ‘to be secure in their persons . . . against unreasonable . 4 . . seizures.’” 5 law enforcement officers have used excessive force-deadly or not- 6 in the course of an arrest . . . should be analyzed under the Fourth 7 Amendment and its ‘reasonableness’ standard.” 8 395 (emphasis in original). 9 “[a]s in other Fourth Amendment contexts, however, the reasonable- 10 ness’ inquiry in an excessive force case is an objective one: the 11 question is whether the officers’ actions are ‘objectively reason- 12 able’ in light of the facts and circumstances confronting them, 13 without regard to their underlying intent or motivation.” 14 397. 15 force in the course of his arrest in violation of his Fourth 16 Amendment rights. 17 doctrines of issue and/or claim preclusion apply, this Court must 18 determine whether the California state courts rendered a final 19 judgment on the “reasonableness” of the force used in effectuating 20 Plaintiff’s arrest under the Fourth Amendment. Accordingly, the Court held that “all claims that Graham, 490 U.S. at The Court went on to explain that, Id. at In his FAC, Plaintiff contends that Defendants used excessive FAC at 4. Thus, in evaluating whether the 21 Generally, federal courts afford the same full faith and credit 22 to state court judgments as would apply in the state’s own courts. 23 28 U.S.C. § 1738; Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 24 (1982). 25 preclusion and claim preclusion: 26 27 28 In doing so, federal courts utilize the doctrines of issue Under the doctrine of claim preclusion, a final judgment forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’ Issue preclusion, in contrast, bars ‘successive litigation of an issue of fact -10- 08cv0408-WQH (BLM) 1 2 or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.6 3 Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008) (internal citations 4 omitted). 5 for 6 resolution of disputes within their jurisdictions.” 7 United States, 440 U.S. 147, 153 (1979). 8 must give preclusive effect to state court judgments whenever the 9 state courts would do so, it necessarily follows that state law 10 governs the application of claim preclusion and issue preclusion. 11 See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 12 (1984); Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007). 13 Accordingly, this Court looks to California law to determine the 14 applicability of issue and claim preclusion to the instant action. which 15 1. 16 The “Application of both doctrines is central to the purpose civil courts have been established, the conclusive Montana v. Because federal courts Issue Preclusion California courts apply issue preclusion where the 17 following five factors are met: (1) the issue to be precluded is 18 identical to one decided in a prior proceeding, (2) the issue was 19 actually litigated, (3) the issue was necessarily decided, (4) the 20 decision in the prior proceeding was final and on the merits, and 21 (5) the party against whom preclusion is sought was a party, or in 22 privity with a party, to the former proceeding. 23 39 Cal. 4th 1070, 1077 (2006) (citing Lucido v. Superior Court, 51 People v. Garcia, 24 25 6 26 27 28 The Supreme Court has explained that the terms “issue preclusion” and “claim preclusion” “have replaced a more confusing lexicon.” Taylor v. Sturgell, 128 S. Ct. 2161, 2171 n.5 (2008). Claim preclusion refers to the doctrine formerly known as “res judicata” and issue preclusion refers to the doctrine formerly known as “collateral estoppel.” Res judicata also has been used as a general term encompassing both doctrines. See Allen v. McCurry, 449 U.S. 90, 94 n.5 (1980). -11- 08cv0408-WQH (BLM) 1 Cal. 3d 335, 341 (1990)); McCutchen v. City of Montclair, 73 Cal. 2 App. 4th 1138, 1145 (4th Dist. 1999). Here, Plaintiff litigated his 3 Fourth Amendment excessive force claim in a section 1538.5 motion to 4 suppress evidence before the San Diego County Superior Court. Order 5 Denying Mot. to Suppress at 9. 6 of Plaintiff’s Fourth Amendment claim in this case because the five 7 requirements are satisfied. 8 a. Issue preclusion bars relitigation 9 Plaintiff’s Fourth Amendment claim is identical to the Fourth Amendment issue decided in the state court proceeding 10 The first factor requires that the issue raised in the instant 11 federal proceeding be the same as that decided during the suppres- 12 sion hearing. 13 Plaintiff argued that Officers Wilson and Tagaban used excessive 14 force in the course of arresting Plaintiff and obtaining evidence 15 from his person and, therefore, violated his Fourth Amendment 16 rights. Order Denying Mot. to Suppress at 9-10; Ct. Appeal Order at 17 11-13. In his FAC, Plaintiff again contends that Officers Wilson 18 and Tagaban used excessive force in the course of his arrest in 19 violation of his Fourth Amendment rights. 20 appears this factor is satisfied. 21 See Garcia, 39 Cal. 4th at 1077. Nevertheless, Plaintiff submits 7 that In state court, FAC at 4. the issues Thus, it are not 22 identical because the criminal court applied a “shocks the con- 23 scious” standard, whereas this Court must apply the “reasonableness” 24 7 25 26 27 28 While Plaintiff does not mention the seizure of evidence in his FAC, the alleged excessive force is the same. That is, in both proceedings, Plaintiff complains about the excessive force used by the officers to arrest him and to obtain evidence from his person. FAC at 4-7; Order Denying Mot. to Suppress at 9-13; Ct. Appeal Order at 11-13. In state court, Plaintiff argues that the illegal conduct should result in the suppression of evidence (drugs from his mouth and money from his hand) whereas in the federal court he argues that it constitutes a violation of his civil rights. However, both cases involve the same conduct and the same Fourth Amendment excessive force analysis. Id. -12- 08cv0408-WQH (BLM) 1 standard. Id. at 6. Plaintiff is incorrect. The record before 2 this Court establishes that the San Diego County Superior Court and 3 the California Court of Appeal both adjudicated the officers’ use of 4 force according to the Fourth Amendment “reasonableness” standard. 5 In its order denying Petitioner’s motion to suppress, the superior 6 court applied the standard set forth in 7 Cal. App. 3d 1331, 1338 (4th Dist. 1989), which relies on Supreme 8 Court authority directing courts to consider whether the force used 9 was “‘reasonable’ under the circumstances.” People v. Cappellia, 208 Order Denying Mot. to 10 Suppress at 11. The Court of Appeal likewise relied on Cappellia in 11 framing its analysis, explaining that “[t]o be constitutional, the 12 force used to recover evidence from a person must be reasonable 13 under the circumstances.” 14 argument, therefore, fails.8 Ct. Appeal Order at 12. Plaintiff’s 15 In sum, because the factual issues and the applied standards 16 of analysis are identical, the Court determines that the issue 17 identity requirement is satisfied in this case. 18 b. Plaintiff’s Fourth Amendment claim was actually litigated 19 20 21 The Court next must consider whether Plaintiff’s claim was actually litigated during the suppression hearing. See Garcia, 39 22 23 24 25 26 27 28 8 While it is unclear from his briefing, Plaintiff may have concluded that the trial court applied the “shocks the conscience” standard because it cited to People v. Cappellia, which discusses the fact that courts, historically, did apply that standard. See Cappellia, 208 Cal. App. 3d at 1337. However, the Cappellia court subsequently confirms that “modern Supreme Court decisions are grounded on whether the search was ‘reasonable’ under the circumstances. ” Id. at 1338. This is because the Supreme Court has determined that excessive force claims arising in the context of an arrest should be characterized as invoking the protections of the Fourth Amendment (which applies a “reasonableness” standard) as opposed to more generalized “substantive due process” protections (which are evaluated using the “shocks the conscience” standard). Graham, 490 U.S. at 393-94. -13- 08cv0408-WQH (BLM) 1 Cal. 4th at 1077. Under California law, an issue is “actually 2 litigated” is 3 determination, and is determined.” 4 4th 376, 400 (1st Dist. 2008) (quoting Barker v. Hull, 191 Cal. App. 5 3d 221, 226 (1st Dist. 1987)). When the specific question presented 6 is whether the doctrine of issue preclusion can be applied in a 7 civil case to issues determined as part of a prior section 1538.5 8 ruling, the Court also should consider whether the prior conviction 9 was for a serious offense such that the defendant was motivated to when it “properly raised, . . . submitted for Murphy v. Murphy, 164 Cal. App. 10 fully litigate the charges. McGowan v. City of San Diego, 208 Cal. 11 App. 3d 890, 894-895 (4th Dist. 1989). 12 to a traffic offense, for instance, because it would be more trouble 13 to defend against the charges than to suffer the penalty. 14 Leader v. State, 182 Cal. App. 3d 1079, 1087 (2d Dist. 1986). 15 the other hand, offenses punishable by imprisonment generally should 16 be considered serious offenses. An accused may plead guilty See On Id. 17 Here, Plaintiff argues that his claim of “excessive force as 18 violative [sic] of personal bodily integrity or right to be free 19 from harm was not ‘actually litigated.’” 20 Mot. at 15 (emphasis in original). 21 order reflects that Plaintiff properly raised a Fourth Amendment 22 excessive force challenge in a section 1538.5 motion to suppress 23 evidence. 24 briefed the issue and the state court conducted a two-day hearing, 25 involving 26 other witnesses on Plaintiff’s behalf. 27 refute this summary of the state court proceedings, nor has he 28 presented any admissible evidence that was not available to the Pl.’s Opp’n to Officers’ However, the superior court’s Order Denying Mot. to Suppress at 9. Both parties fully testimony from four police officers, Plaintiff, and four -14- Id. Plaintiff does not 08cv0408-WQH (BLM) 1 superior court which would have been material to its determination. 2 Furthermore, Plaintiff unquestionably had the motivation to fully 3 litigate the issue during the hearing because Plaintiff was facing 4 serious 5 sentences and evidence obtained by use of excessive force would have 6 been suppressed, see Cal. Penal Code § 1538.5(d). 7 court actually determined the issue when it denied Plaintiff’s 8 motion to suppress evidence, concluding that “[u]nder the circum- 9 stances, the officers used reasonable force in obtaining the cocaine 10 from the defendant’s mouth and the $20 bill from his closed fist.” 11 Order Denying Mot. to Suppress at 11; Ct. Appeal Order at 9, 13 12 (trial court did not err when it concluded that Wilson and Tagaban 13 did not use excessive force when arresting and searching Plaintiff). 14 Thus, the Court concludes that the issue of whether the officers 15 used excessive force against Plaintiff in violation of the Fourth 16 Amendment was “actually litigated.” 17 felony c. charges carrying significant potential prison Finally, the Plaintiff’s Fourth Amendment claim was necessarily decided 18 19 The parties do not dispute that the excessive force issue was 20 necessarily decided during the suppression hearing and the Court 21 concurs in this assessment. 22 resolution of that issue is “not ‘entirely unnecessary’ to the 23 judgment in the prior proceeding.” 24 (quoting Castillo v. City of Los Angeles, 92 Cal. App. 4th 477, 482 25 (2d Dist. 2001)). 26 issue in this case is apparent because any evidence obtained through 27 the use of excessive force would have been suppressed and, thus, 28 rendered inadmissable during Plaintiff’s criminal trial. An issue is “necessarily decided” when Murphy, 164 Cal. App. 4th at 400 The necessity of determining the excessive force -15- See Cal. 08cv0408-WQH (BLM) 1 Penal Code § 1538.5(d). 2 constitutional violation was necessary for the parties to proceed in 3 the criminal case. 4 d. Thus, a final determination of the alleged There was a final judgment on the merits of Plaintiff’s Fourth Amendment claim in state court 5 6 The initial question presented by this prong is whether a 7 ruling on a motion to suppress evidence may constitute a final 8 judgment on the merits for purposes of issue preclusion. 9 v. McCurry, 449 U.S. 90 (1980), the Supreme Court was presented with 10 facts very similar to those presented in this case and answered that 11 question in the affirmative. 12 court, McCurry filed a motion to suppress evidence, alleging that 13 officers violated the Fourth Amendment by conducting an unlawful 14 search and seizure. 15 partially denied. 16 action pursuant to 42 U.S.C. § 1983 against several of the arresting 17 officers alleging, among other things, that the officers conducted 18 an unconstitutional search and seizure. 19 court granted summary judgment, holding that collateral estoppel 20 (issue 21 search-and-seizure question already decided against him in the state 22 courts.” 23 court, the Supreme Court concluded that litigation of an issue 24 during 25 relitigation of the same issue in a subsequent federal civil rights 26 action. preclusion) state The motion was McCurry subsequently filed a federal civil “prevented Id. at 92-93. a Before his criminal trial in state Allen, 449 U.S. at 91-92. Id. In Allen McCurry Id. at 92. from The district relitigating the Following a reversal by the appellate suppression hearing may, in fact, preclude Id. at 93, 103-05. 27 California law, to which this Court looks for guidance in 28 applying the doctrines of issue and claim preclusion, see Migra, 465 -16- 08cv0408-WQH (BLM) 1 U.S. at 82 and Holcombe, 477 F.3d at 1097, also provides that a 2 suppression hearing may constitute a final proceeding such that a 3 litigant may be barred from relitigating in a subsequent civil suit 4 a claim decided on a motion to suppress, McGowan, 208 Cal. App. 3d 5 at 895 9. 6 McGowan with approval. 7 1267, 1272 (9th Cir. 1990) (applying McGowan and affirming applica- 8 tion of issue preclusion to bar relitigation of Fourth Amendment 9 claim raised in a section 1538.5 suppression hearing). In applying California law, the Ninth Circuit has cited See Ayres v. City of Richmond , 895 F.2d 10 The question then is whether the trial court’s ruling on 11 Plaintiff’s excessive force claim during the suppression hearing in 12 this case constituted a final decision on the merits for issue 13 preclusion purposes. 14 decision immune from reversal or amendment. Under California law, a “final judgment” is a People v. Cooper, 149 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Plaintiff maintains erroneously that McGowan prevents application of issue preclusion to this case. See Pl.’s Opp’n to Officers’ Mot. at 8, 14, 16. However, the case holds otherwise. Like Plaintiff, McGowan claimed that San Diego police officers violated his Fourth Amendment rights and filed a motion to suppress evidence under California Penal Code section 1538.5. McGowan, 208 Cal. App. 4th at 894-95. The motion was denied. Id. at 895. McGowan subsequently The McGowan court filed a civil rights case under 42 U.S.C. § 1983. Id. evaluated the general principles supporting application of issue preclusion and held that “the doctrine of [issue preclusion] may apply to subsequent civil actions based upon rulings pursuant to section 1538.5 motions to suppress evidence.” Id. Though Plaintiff is correct that the McGowan court ultimately did not find that McGowan’s suppression hearing precluded relitigation in his subsequent civil case, the facts of McGowan are distinguishable from the instant case. During the suppression hearing, McGowan alleged that defendants used excessive force in drawing his blood after his arrest. Id. at 894. In the civil case, he alleged causes of action for false arrest, false imprisonment, assault and battery. Id. at 893. The McGowan court determined that the issues raised in the civil case were not identical to those adjudicated during the suppression hearing because McGowan’s allegations in the civil case also involved actions defendants took before and after the blood draw (and for which a different standard of review would be applied). See id. at 893-97. Here, Plaintiff raised excessive force claims in both courts and, in both instances, the claims pertain to the same incident (application of force during his arrest and the retrieval of the cocaine from his mouth and money from his hand). As discussed in more detail in the body of this order, this Court applies the same reasonableness standard applied by the trial court. Accordingly, this Court rejects Plaintiff’s argument that McGowan mitigates against application of issue preclusion in this case. -17- 08cv0408-WQH (BLM) 1 Cal. App. 4th 500, 521 (Cal. Ct. App. 2007). 2 conclusion 3 purpose[s] are ‘that the parties were fully heard, that the court 4 supported its decision with a reasoned opinion, [and] that the 5 decision was subject to appeal or was in fact reviewed on appeal.’” 6 People v. Meredith, 11 Cal. App. 4th 1548, 1557 n.5 (2d Dist. 1993). 7 Here, the parties had a full and fair opportunity to be heard at the 8 two-day suppression hearing and the state court issued a reasoned 9 opinion. that a decision is final “Factors supporting a for [issue preclusion] See Order Denying Mot. to Suppress at 9-13. Plaintiff 10 appealed the judgment and specifically challenged the trial court’s 11 ruling on his motion to suppress evidence. 12 In its decision affirming the judgment, the California Court of 13 Appeal 14 Plaintiff’s arrest and the collection of evidence. 15 Thus, the Court finds that the state court’s decision on the merits 16 denying Plaintiff’s Fourth Amendment claim was final and bars 17 relitigation of this issue. 18 e. thoroughly analyzed the officers’ Ct. Appeal Order at 5. use of force during Id. at 4-18. 19 The party against whom issue preclusion is asserted was a party to the prior state court proceeding 20 Defendants seek to preclude Plaintiff from relitigating his 21 Fourth Amendment claim of excessive use of force. Here, Plaintiff 22 does not dispute that he was the defendant in the criminal trial at 23 issue or that he filed the motion to suppress evidence. 24 confirms his participation. 25 Denying Mot. to Suppress at 9-13. 26 that the identity of the parties requirements has been satisfied. The record See, e.g., Criminal Compl. at 4; Order Accordingly, the Court concludes 27 28 -18- 08cv0408-WQH (BLM) 1 f. Plaintiff’s policy arguments do not foreclose application of issue preclusion to this case 2 3 In his opposition, Plaintiff argues that even if the require- 4 ments for issue preclusion are satisfied, the Court should not apply 5 issue preclusion because “‘considerations of policy or fairness 6 outweigh the doctrine’s purposes’” in this case. 7 Officers’ Mot. at 12 (quoting Zevnik v. Superior Court , 159 Cal. 8 App. 4th 76, 82 (2d Dist. 2008)). 9 presented any factual evidence suggesting that the state court made Pl.’s Opp’n to However, Plaintiff has not 10 an incomplete or unfair decision. 11 and 12 evidence showing that his disabilities prevented a fair determina- 13 tion of his constitutional claim in state court. Pl.’s Sur-reply to 14 Officers’ Mot. at 4. 15 suppression 16 Plaintiff to litigate his claim. See Order Denying Mot. to Suppress 17 at 9-13; Supporting Documents to Pl.’s Opp’n to Officers’ Mot. [Doc. 18 No. 95-2], Preliminary Hearing Transcript (“Prelim. Hearing Tr.”) at 19 60-7010. 20 tiff’s witnesses after properly weighing the evidence does not 21 render the proceeding fundamentally unfair. 22 to Suppress at 9-13. 23 has failed to raise any material issues of fact that would justify 24 relitigation of this case. 25 physically disabled, hearing but Plaintiff claims to be mentally has not provided any admissible As previously discussed, the state court provided a full and fair opportunity for That the state court discredited the testimony of Plain- See Order Denying Mot. Accordingly, the Court finds that Plaintiff Plaintiff also argues that issue preclusion cannot be applied 26 27 28 10 This portion of the preliminary hearing transcript was read into the record as Lemus’ testimony for the suppression hearing. Ct. Appeal Order at 5 n.2. Lemus also apparently provided live testimony. Id. -19- 08cv0408-WQH (BLM) 1 in this case because Lemus provided perjured testimony at the 2 suppression hearing in order to ensure Plaintiff’s conviction. 3 Supporting Documents to Pl.’s Opp’n to Officers’ Mot., 4 Explanation at 2 (citing Teitelbaum Furs, Inc. v. Dominion Ins. Co., 5 58 Cal. 2d 601, 607 (1962) (noting that collateral estoppel should 6 not be applied where the criminal judgment is subject to collateral 7 attack on the ground that it was obtained through the knowing use of 8 perjured testimony)). 9 tape” transcript shows that “contrary to Officer Lemus’ testimony, 10 suspect was out of sight, ‘lost’ and arrested person (Plaintiff) did 11 not match description of pursued suspect.” 12 Plaintiff claims Lemus testified at the suppression hearing that he 13 did not lose sight of Plaintiff but then stated in the declaration 14 he provided in conjunction with his motion for summary judgment that 15 he did not see the arrest/assault. Exhibit Specifically, Plaintiff claims that the “tac Id. Additionally, Id. at 2-3. 16 The Court has reviewed Lemus’ hearing testimony (which actually 17 was taken during the preliminary hearing and read into the record at 18 the suppression hearing) (Prelim. Hearing Tr. at 52-69), the excerpt 19 of the “tac tape” provided by Plaintiff11 [Doc. No. 95-2 at 45-47] 20 11 21 22 23 24 25 26 27 28 Defendants object to the consideration of the “tac tape” transcript on the grounds that it is irrelevant, presents inadmissible hearsay, and does not have proper authentication and foundation. Reply on Officers’ Mot. at 2. Initially, the Court finds that the transcript is relevant to Plaintiff’s arguments. As to the other objections, the Court notes that it would be an abuse of discretion to refuse to consider evidence offered by a pro se plaintiff for the purpose of avoiding summary judgment. See Jones v. Blanas, 393 F.3d 918, 930-31 (9th Cir. 2004) (reversing and remanding with instructions to consider evidence offered by the pro se plaintiff in his objections to findings and recommendations); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998) (reversing and remanding for consideration of the pro se plaintiff’s verified motion as an affidavit in opposition to summary judgment). In order to survive a motion for summary judgment, a pro se party is not required to produce evidence in a form that will be admissible at trial and need only offer evidence that may be transformed into admissible evidence at trial. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003); cert. denied, 541 U.S. 937 (2004) (holding that the district court properly considered a diary which defendants moved to strike as inadmissible hearsay because “[a]t the summary judgment stage, we do not focus -20- 08cv0408-WQH (BLM) 1 (“Tac Tape Tr.”), and the declaration Lemus provided in conjunction 2 with his motion for summary judgment (“Lemus’ Decl.) and does not 3 find them inconsistent. At the suppression hearing, Lemus testified 4 that he identified the person who sold him the drugs as a black male 5 wearing a dark jacket and walking east on 1400 J Street. 6 Hearing Tr. at 55. 7 away from Plaintiff, but did not lose sight of him. 8 approximately 9 officers, or “scoop units,” arrived to arrest Plaintiff. Id. at 55- 10 67. Another officer subsequently picked up Lemus and drove him past 11 the arrest scene where he identified Plaintiff as the person who 12 sold him drugs. one Prelim. Lemus explained that after the sale, he walked and a half blocks away when the He was uniformed Id. 13 The tac tape transcript is a two page document apparently 14 containing “conversation recorded on March 9, 2006 at 1949 on 15 channel 32.” 16 by three police officers: Sgt. Griffin, Off. Chavez, and Off. 17 Spears. 18 these officers lost sight of the suspect, whereas the end of the 19 transcript 20 officers. 21 ments made by Lemus or to reflect his observations. Tac Tape Tr. at 46-47. Id. The beginning part of the transcript indicates that reflects Id. It sets forth statements made that someone is being arrested by other The transcript does not appear to contain stateId. 22 Lemus’ declaration in support of his summary judgment motion 23 states that he walked away from Plaintiff, but continued to observe 24 25 26 27 28 on the admissibility of the evidence’s form. We focus instead on the admissibility of its contents.”). Therefore, Defendants’ objections are overruled for present purposes and the Court will consider the tac tape transcript. For the same reasons, the Court also overrules Defendants’ other objections to Plaintiff’s evidence. Reply on Officers’ Mot. at 2-3; Reply on Lemus’ Mot. at 2. The Court has considered Plaintiff’s evidence and given it appropriate weight. -21- 08cv0408-WQH (BLM) 1 him until a marked police car approached Plaintiff. Lemus’ Decl. ¶¶ 2 7-8. 3 [Plaintiff],” he walked away and was picked up by an unmarked car 4 and driven back to the scene of the arrest. 5 that he “did not observe any take down or other use of force against 6 Mr. Daughtery. [He] did not observe or witness any physical contact, 7 take down or use of force by Officer Wilson or Officer Tagaban.” 8 Id. ¶ 10. Once Lemus “felt confident that the officer did contact Id. ¶ 8. Lemus states 9 The three exhibits are not inconsistent. Lemus’ testimony and 10 declaration both describe Lemus’ efforts to ensure that the correct 11 person was arrested by observing the suspect until another officer 12 arrived. 13 impact his credibility in any way. 14 scripts and declaration in their entirety and in light of the 15 context presented, the Court finds that Plaintiff has not satisfied 16 his burden of showing a material factual inconsistency that would 17 support Plaintiff’s perjury allegation and prevent application of 18 issue preclusion to this case. The tac tape does not present Lemus’ observations or Having considered the tran- 19 Furthermore, even if the evidence Plaintiff presents did show 20 that Lemus perjured himself in regard to whether or not he directly 21 witnessed Plaintiff’s arrest, it would not be a sufficient basis for 22 overcoming the application of issue preclusion because whether or 23 not Lemus witnessed the arrest was irrelevant to the trial court’s 24 excessive force determination. 25 California Supreme Court has held that “a criminal judgment that is 26 subject to collateral attack on the ground, for example, that it was 27 obtained through the knowing use of perjured testimony... is not res 28 judicata in a subsequent action.” Plaintiff is correct that the -22- Teitelbaum Furs, 58 Cal. 2d at 08cv0408-WQH (BLM) 1 608. But, in ruling on the excessive force issue in this case, the 2 trial court weighed the credibility of Officers Wilson and Tagaban 3 on the one hand against that of Plaintiff and his witnesses on the 4 other hand. 5 court did not factor in Lemus’ testimony that he saw the arrest, nor 6 could it have because Lemus did not elaborate at all as to whether 7 he observed the use of force. 8 such, Plaintiff has not presented a genuine factual dispute as to 9 whether the suppression ruling was “obtained through the knowing use Order Denying Mot. to Suppress at 11-13. The trial See Prelim. Hearing Tr. at 67. As 10 of perjured testimony,” Teitelbaum Furs, 58 Cal. 2d at 608. 11 differently, the trial court’s ruling is not subject to collateral 12 attack on this basis because even if Plaintiff’s perjury claim was 13 true, the alleged perjured testimony did not impact the trial 14 court’s conclusion that Defendants did not use excessive force. Id. 15 Accordingly, the Court finds that Plaintiff received a full and 16 fair opportunity to litigate his claim in state court, the five 17 requirements for applying issue preclusion have been met, and there 18 are no policy considerations which would make it inappropriate to 19 apply issue preclusion. 20 preclusion 21 Amendment excessive use of force claim. doctrine Stated Therefore, the Court holds that the issue bars relitigation of Plaintiff’s Fourth 22 2. 23 To the extent Plaintiff argues he may relitigate his excessive 24 use of force claim under an “alternative” constitutional right, any 25 such claim is barred by the claim preclusion doctrine. 26 Opp’n to Officers’ Mot. at 12; Pl.’s Sur-reply to Officers’ Mot. at 27 6-7. 28 consistently applied the ‘primary rights’ theory, under which the Claim Preclusion See Pl.’s In applying the doctrine of claim preclusion, “California has -23- 08cv0408-WQH (BLM) 1 invasion of one primary right gives rise to a single cause of 2 action.” 3 (3d Dist. 1994) (quoting Slater v. Blackwood, 15 Cal. 3d 791, 795 4 (1975)) (internal quotations omitted). 5 theory,” the “‘cause of action’ is based upon the harm suffered, as 6 opposed to the particular theory asserted by the litigant. 7 where there are multiple legal theories upon which recovery might be 8 predicated, one injury gives rise to only one claim for relief.” 9 Id. at 340-41 (internal citations omitted). “If the ‘primary right’ 10 sought to be vindicated in a subsequent litigation is the same as 11 that in an earlier suit, the second action will be claim precluded 12 under California law.” 13 Cir. 2004) (citing Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 14 904 (2002)). Branson v. Sun Diamond Growers, 24 Cal. App. 4th 327, 340 Under the “primary rights Even Maldonado v. Harris, 370 F.3d 945, 952 (9th 15 Here, Plaintiff has alleged one injury - being subjected to 16 excessive use of force during his arrest - but has raised multiple 17 legal theories for recovery. 18 excessive use of force claim may be divided into two separate claims 19 under the Fourth Amendment: (1) a claim of excessive use of force in 20 violation of his right to be free from unreasonable search and 21 seizure and (2) a claim of 22 his right to be secure in his person. 23 Officers’ Mot. at 6. 24 vindicated under each theory - freedom from injury resulting from 25 excessive use of force during arrest - is identical to the claim 26 previously litigated in state court. 27 that Defendants Griffin and Lemus violated his Fourth Amendment 28 rights because they “did nothing to halt the illegal acts” of First, Plaintiff contends that his excessive use of force in violation of See, e.g., Pl.’s Sur-reply to However, the primary right sought to be -24- Second, Plaintiff contends 08cv0408-WQH (BLM) 1 excessive use of force. 2 intercede claim presents yet another Fourth Amendment legal theory 3 upon which he seeks recovery for the same excessive use of force 4 injury. Although Plaintiff did not raise this legal theory in state 5 court, claim preclusion does not require actual litigation in prior 6 proceedings. See Holcombe, 477 F.3d at 1097 (citing Migra, 465 U.S. 7 at 83-85). 8 same 9 relitigation 10 as FAC at 2, 5. But, Plaintiff’s failure-to- Because the primary right sought to be vindicated is the that in of the prior Plaintiff’s proceedings, claim failure-to-intercede preclusion claim in bars this action. 11 For the foregoing reasons, the Court concludes that, to the 12 extent Plaintiff attempts to re-frame his excessive force claim 13 under various Fourth Amendment legal theories, these claims are 14 barred by the doctrine of claim preclusion. 15 preclusion bar the relitigation of Plaintiff’s claims, summary 16 judgment is appropriate. 17 1439, 1441-42 (9th Cir. 1990) (citing Takahashi v. Bd. of Trustees 18 of Livingston Union Sch. Dist., 738 F.2d 848, 849 (9th Cir. 1986)). 19 Accordingly, the Court 20 Summary Judgment be GRANTED. Where issue and claim See Robi v. Five Platters, Inc., 918 F.2d RECOMMENDS that the Officers’ Motion for 21 3. 22 In his sur-reply, Plaintiff requests that the Court deny the 23 Officers’ Motion under Federal Rule of Civil Procedure 56(f) because 24 he “cannot present facts essential to justify [his] Opposition.” 25 Pl.’s Sur-reply to Officers’ Mot. at 8. 26 the Court may deny a motion for summary judgment “[i]f a party 27 opposing the motion shows by affidavit that, for specified reasons, 28 it cannot present facts essential to justify its opposition.” Plaintiff’s Rule 56(f) Motion -25- Rule 56(f) provides that Fed. 08cv0408-WQH (BLM) 1 R. Civ. P. 56(f). The party challenging summary judgment through a 2 Rule 56(f) motion “bears the burden of showing ‘what facts [he] 3 hopes to discover to raise a material issue of fact.’” 4 Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (quoting Hancock v. 5 Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n.1 6 (9th Cir. 1986)). 7 bears the burden of showing that the evidence sought exists. Denial 8 of a Rule 56(f) application is proper where it is clear that the 9 evidence sought is almost certainly nonexistent or is the object of “The party seeking additional discovery also 10 pure speculation.” 11 F.2d 1406, 1416-17 (9th Cir. 1987)). 12 Terrell v. Id. (citing Volk v. D.A. Davidson & Co., 816 Plaintiff states that evidence from “potential deponents” and 13 “court transcripts” is necessary to support his Opposition. 14 Sur-reply to Officers’ Mot. at 9. 15 specifically identified the facts or evidence he seeks to discover.12 16 Nor has Plaintiff demonstrated that the evidence he seeks exists or 17 that he anticipates being able to locate the “potential deponents” 18 and secure their cooperation and testimony within a reasonable time 19 frame. 20 an extension of discovery, the Court RECOMMENDS that his Rule 56(f) 21 motion be DENIED. 22 C. 23 Pl.’s However, Plaintiff has not Because Plaintiff has failed to meet his burden to justify Lemus’ Motion for Summary Judgment In addition to joining in the Officers’ Motion, Defendant Lemus 24 25 26 27 28 12 Petitioner seems to argue that additional transcripts or personnel records would bolster his perjury argument against Defendant Lemus. See Exhibit Explanation at 2. As previously discussed, the Court finds that Lemus’ testimony at the suppression hearing was consistent with his declaration in the instant motion and, in any event, did not impact the state court ruling. Therefore, the Court finds that “it is clear that the evidence sought is almost certainly To the extent Plaintiff requests nonexistent.” Terrell, 935 F.2d at 1018. additional discovery for his perjury argument, the Court RECOMMENDS that Plaintiff’s motion be DENIED. -26- 08cv0408-WQH (BLM) 1 filed 2 Plaintiff’s allegation that he “witnessed [the] unlawful beating, 3 [and] failed to intervene or report illegal activities.” 4 Mot. for Summ. J. at 7 (citing FAC at 2). 5 that he is entitled to summary judgment as a matter of law because 6 uncontroverted evidence shows that he was not present during the 7 conduct 8 opportunity to intercede. 9 that Plaintiff has not produced evidence establishing a causal link 10 between the alleged inaction and Plaintiff’s injuries or the alleged 11 constitutional deprivation. 12 motion should be denied because Lemus was close enough to where 13 Wilson and Tagaban were allegedly beating Plaintiff that he could 14 have called out for them to stop and/or crossed the street and 15 intervened physically. 16 a separate alleged Lemus by motion for Plaintiff summary and, in response to Lemus’ Therein, Lemus argues therefore, Id. at 5. Id. judgment did not have an Alternatively, Lemus argues Plaintiff responds that Lemus’ Pl.’s Opp’n to Lemus’ Mot. at 5. acknowledges that “police officers have a duty to 17 intercede when their fellow officers violate the constitutional 18 rights of a suspect or other citizen.” 19 F.3d 1271, 1289 (9th Cir. 2000) (quotation omitted). 20 officers will be held liable for failing to intercede only if they 21 had a realistic opportunity to intercede. Id. (citing Gaudreault v. 22 Municipality of Salem, 923 F.2d 203, 207 n. 3 (1st Cir. 1990)). Cunningham v. Gates, 229 However, 23 Because this issue arises on summary judgment, Lemus bears the 24 initial burden of demonstrating that there is no genuine issue of 25 material fact. 26 because he was over a block away from where the incident occurred, 27 he did not have a “realistic opportunity” to intercede. Lemus’ Mot. 28 for Summ. J. at 5. Celotex, 477 U.S. at 323. Lemus contends that In his declaration, Lemus explains that, after -27- 08cv0408-WQH (BLM) 1 his sales transaction with Plaintiff, he and Plaintiff walked down 2 J Street and then started walking in opposite directions when they 3 reached 16th Street. 4 observe [Plaintiff] until another officer contacted him,” at which 5 time Lemus was “approximately a block and a half away.” 6 When he “felt confident that the officer did contact the person who 7 just previously provided [him] with the white rock like substance in 8 exchange for the marked twenty dollar bill, [he] continued walking 9 away.” Id. ¶ 8. Lemus’ Decl. ¶ 7. Lemus “continue[d] to Id. ¶¶ 7-8. “Within a matter of minutes,” Lemus was picked up 10 and transported back to where Plaintiff was in custody. Id. ¶ 9. 11 He asserts that he “did not observe or witness any physical contact, 12 take down or use of force by Officer Wilson or Officer Tagaban.” 13 Id. ¶ 10. 14 is warranted. In light of these facts, Lemus believes summary judgment 15 Viewing the inferences to be drawn from these facts in the 16 light most favorable to Plaintiff, as this Court is bound to do, 17 Anderson, 477 U.S. at 255, the Court finds that Lemus has not 18 satisfied his initial burden. 19 judgment as whether “Officer Lemus could have perceived any use of 20 force which would constitute a violation of the Plaintiff’s right to 21 be free from unreasonable force.” 22 in original omitted). 23 and a half away and observed Plaintiff until he was contacted by 24 another officer. 25 close enough to see, or at the very least, hear the altercation and 26 call out to Wilson and Tagaban to stop or to alert other officers 27 via the recording device he was wearing to stop the misconduct. 28 And, since he was not picked up right away and did not arrive back Lemus defines the issue on summary Lemus’ Sur-Reply at 4 (emphasis By Lemus’ own admission, he was only a block A reasonable jury could conclude that Lemus was -28- 08cv0408-WQH (BLM) 1 at the scene until Plaintiff already was in custody, Lemus has not 2 demonstrated that he was not in a reasonable position to intercede 3 during the somewhat protracted time it allegedly took for Wilson to 4 choke and trip Plaintiff and for Tagaban to arrive, beat Plaintiff 5 twelve to fourteen times with her flashlight, and then join Wilson 6 in arresting Plaintiff. 7 initial burden, Plaintiff created a material factual dispute as to 8 Lemus’ location during this alleged incident by swearing in his own 9 affidavit that Lemus was just on the opposite side of the intersec- 10 tion of 16th and J Streets (as opposed to a block and a half away).13 11 Pl.’s Aff. at 3. 12 regarding where Lemus was standing and what he could and could not 13 observe or hear from that vantage point. 14 255; Fairbank, 212 F.3d at 531. Furthermore, even if Lemus satisfied this It is not for this Court to weigh the evidence See Anderson, 477 U.S. at 15 Accordingly, the Court finds that summary judgment on this 16 basis is not appropriate and, therefore, RECOMMENDS that the Lemus 17 Motion be DENIED. 18 D. 19 Failure to State a Claim Under the Fourteenth Amendment As an alternative basis for granting summary judgment, 20 Defendants argue that Plaintiff’s Fourteenth Amendment claims fail 21 as a matter of law because claims of unreasonable search and seizure 22 and excessive force during arrest are properly analyzed under the 23 Fourth Amendment. Officers’ Mot. for Summ. J. at 19-21. 24 25 13 26 27 28 Lemus objects to the Court’s consideration of Plaintiff’s sur-reply, to which Plaintiff’s affidavit is attached, on the grounds that Plaintiff had sufficient time to oppose the Lemus Motion and the sur-reply was not expressly authorized by the Court. Objection to Consideration of Pl.’s Sur-Reply on Lemus’ Mot. [Doc. No. 104] at 2. However, the Court subsequently accepted the sur-reply for filing and afforded Lemus additional time to file a response to the same. See Doc. No. 105. -29- 08cv0408-WQH (BLM) 1 A claim under the Fourteenth Amendment implicates a substantive 2 due process analysis and the Supreme Court has “always been 3 reluctant to expand the concept of substantive due process.” County 4 of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting Collins v. 5 Harker Heights, 503 U.S. 115, 125 (1992)). 6 has concluded that “[w]here a particular Amendment provides an 7 explicit textual source of constitutional protection against a 8 particular sort of government behavior, that Amendment, not the more 9 generalized notion of substantive due process, must be the guide for The Supreme Court thus 10 analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 11 (1994) (plurality opinion of Rehnquist, C.J.) (internal quotation 12 omitted). 13 arising in the context of an arrest, the claim “is most properly 14 characterized 15 Amendment, which guarantees citizens the right ‘to be secure in 16 their persons . . . against unreasonable . . . seizures.’” 17 490 U.S. at 394. 18 “all claims that law enforcement officers have used excessive force- 19 deadly or not- in the course of an arrest . . . should be analyzed 20 under the Fourth Amendment and its ‘reasonableness’ standard.” 21 at 395 (emphasis in original). Where, as here, the claim alleged is for excessive force as one invoking the protections of the Fourth Graham, Accordingly, the Supreme Court has concluded that Id. 22 Defendants are correct that Plaintiff’s excessive force claim 23 (which is not separable from his “unreasonable search and seizure” 24 claim) under the Fourteenth Amendment fails as a matter of law. 25 Pursuant to Graham, this claim must be analyzed under the Fourth 26 Amendment. 27 listed the Fourteenth Amendment in his FAC because of case law 28 stating that the Fourth Amendment guarantees against unreasonable Plaintiff concedes as much, explaining that he only -30- 08cv0408-WQH (BLM) 1 search and seizure are made applicable to the states by way of the 2 Fourteenth Amendment’s due process clause. Pl.’s Opp’n to Officers’ 3 Mot. at 18. 4 depth of research commendable, the Court nevertheless must RECOMMEND 5 that 6 Fourteenth Amendment claims be GRANTED. 7 E. While Plaintiff’s mistake is understandable and his Defendants’ motion for summary judgment on Plaintiff’s Qualified Immunity 8 As a final, alternative basis for granting summary judgment, 9 Defendants argue that they are entitled to qualified immunity from 10 all of Plaintiff’s claims. Officers’ Mot. for Summ. J. at 21-25. 11 Plaintiff disputes Defendants’ qualified immunity analysis. 12 Opp’n to Officers’ Mot. at 19-21. Pl.’s 13 Qualified immunity shields government officials performing 14 discretionary functions from liability for civil damages unless 15 their conduct violates clearly established statutory or constitu- 16 tional 17 Anderson v. Creighton, 483 U.S. 635, 638-40 (1987). 18 immunity is ‘an entitlement not to stand trial or face the other 19 burdens of litigation.’” 20 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)), abrogated 21 on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). 22 This privilege is “an immunity from suit rather than a mere defense 23 to liability; and like an absolute immunity, it is effectively lost 24 if a case is erroneously permitted to go to trial.” 25 (emphasis in original) (quoting Mitchell, 472 U.S. at 526). 26 the Supreme Court “repeatedly [has] stressed the importance of 27 resolving immunity questions at the earliest possible stage in 28 litigation.” rights of which a reasonable person would have known. “Qualified Saucier v. Katz, 533 U.S. 194, 200 (2001) Id. at 200-01 Thus, Id. at 201 (quoting Hunter v. Bryant, 502 U.S. 224, -31- 08cv0408-WQH (BLM) 1 227 (1991) (per curiam)). 2 In Saucier, the Supreme Court established a two-step inquiry 3 for determining whether an official is entitled to qualified 4 immunity. 5 “First, a court must decide whether the facts that a plaintiff has 6 alleged or shown make out a violation of a constitutional right. 7 Second, if the plaintiff has satisfied this first step, the court 8 must decide whether the right at issue was clearly established at 9 the time of defendant’s alleged misconduct. Pearson, 129 S. Ct. at 815-16; Saucier, 533 U.S. at 201. 10 applicable 11 established constitutional right.” 12 (internal citations and quotations omitted). 13 determined that “while the sequence set forth [in Saucier] is often 14 appropriate, it should no longer be regarded as mandatory.” 15 818. 16 deciding which of the two prongs of the qualified immunity analysis 17 should be addressed first in light of the circumstances in the 18 particular case at hand.” 19 unless the official’s conduct Qualified immunity is violated a clearly Pearson, 129 S. Ct. at 815-16 The Supreme Court has Id. at Instead, lower courts may “exercise their sound discretion in Id. Here, Plaintiff has alleged facts in his FAC which could “make 20 out a violation of a constitutional right.” Pearson, 129 S.Ct. at 21 815-16. 22 throat, 23 concrete. 24 repeatedly hit him on his head and shoulders with a metal flashlight 25 until he lost consciousness. 26 alleges that Lemus and Griffin witnessed the assault and did not 27 stop the illegal attack. 28 the state court determined that Wilson and Tagaban did not use Specifically, Plaintiff alleges that Wilson grabbed his choked him, and FAC at 4. repeatedly banged his head into the Plaintiff further alleges that Tagaban Id. at 4-5. Id. at 5. -32- Finally, Petitioner However, as discussed above, 08cv0408-WQH (BLM) 1 excessive force in arresting Plaintiff and extracting the drug and 2 monetary evidence from his possession and therefore Plaintiff has 3 not and cannot establish a violation of a constitutional right. 4 Order Denying Mot. to Suppress at 11-12; Ct. Appeal Order at 11-13. 5 Because there are no remaining facts that create a genuine issue 6 regarding 7 conduct, they are entitled to qualified immunity. 8 Forsyth, 472 U.S. 511, 526 (1985); Johnson v. County of Los Angeles, 9 340 F.3d 787, 793-94 (9th Cir. 2003). whether these Defendants engaged in unconstitutional See Mitchell v. Similarly, Lemus and Griffin 10 are entitled to qualified immunity because even if they witnessed 11 the alleged conduct, the conduct did not rise to the level of a 12 constitutional violation. 13 For the reasons set forth above, this Court finds that 14 Plaintiff has not provided, and cannot provide, facts that establish 15 a violation of a clearly established constitutional right and the 16 Court, therefore, RECOMMENDS that Defendants’ motion for summary 17 judgment also be GRANTED on this alternative ground that Defendants 18 are entitled to qualified immunity. 19 CONCLUSION 20 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the 21 District Court issue an Order: (1) approving and adopting this 22 Report and Recommendation, (2) granting the Officers’ Motion14, 23 24 25 26 27 28 14 In November 2008, Plaintiff filed a discovery motion seeking “all records of citizen complaints and disciplinary actions relating to use of excessive force by San Diego (former) Police Officer Dennis Wilson.” Doc. No. 72 at 2. At that time, Defendant Wilson had not yet been served with the complaint. Defendant Wilson filed an answer in February 2009. Doc. No. 97. In light of this Court’s recommendation that the Officers’ motion for summary judgement be granted and this case be dismissed, the Court DENIES without prejudice Plaintiff’s discovery motion (Doc. No. 72). If the motion for summary judgement is not granted and the case proceeds against Officer Wilson, Plaintiff may refile his discovery motion. -33- 08cv0408-WQH (BLM) 1 (3) denying the Lemus Motion, and (4) denying Plaintiff’s Rule 56(f) 2 motion. 3 IT IS HEREBY ORDERED that any written objections to this Report 4 must be filed with the Court and served on all parties no later than 5 July 6, 2009. 6 Report and Recommendation.” The document should be captioned “Objections to 7 IT IS FURTHER ORDERED that any reply to the objections shall 8 be filed with the Court and served on all parties no later than July 9 27, 2009. The parties are advised that failure to file objections 10 within the specified time may waive the right to raise those 11 objections on appeal of the Court’s order. 12 158 F.3d 449, 455 (9th Cir. 1998). 13 See Turner v. Duncan, IT IS SO ORDERED. 14 15 DATED: June 15, 2009 16 17 BARBARA L. MAJOR United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 -34- 08cv0408-WQH (BLM)

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