Veth Mam v. City of Fullerton et al

Filing 256

ORDER by Judge Josephine Staton Tucker: GRANTING IN PART AND DENYING IN PART DEFENDANT OFFICER KENTON HAMPTON'S MOTION FOR SUMMARY JUDGMENT (Doc. 72): (See document for details.) For the reasons set forth above the Court GRANTS Defendant's Motion as to the false arrest, malicious prosecution and conspiracy theories, but DENIES Defendant's Motion as to the First Amendment retaliation and excessive force theories. (rla)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VETH MAM,

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CASE NO. 8:11-cv-1242-JST (MLGx)

Plaintiff,

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vs.

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
OFFICER KENTON HAMPTON’S
MOTION FOR SUMMARY
JUDGMENT (Doc. 72)

15 CITY OF FULLERTON, et al.,
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Defendants.

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Before the Court is Motion for Summary Judgment, or in the Alternative,

2 Summary Adjudication of Issues (“Motion”) filed by Defendant Officer Kenton
3 Hampton. (Mot., Doc. 72.) Plaintiff Veth Mam filed an opposition, and
4 Defendant replied. (Opp’n, Doc. 171; Reply, Doc. 194.) Having reviewed the
5 papers and considered the arguments of counsel at the hearing, the Court
6 GRANTS IN PART and DENIES IN PART Defendant’s Motion.
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I.

Background
This case for violation of civil rights pursuant to 42 U.S.C. §1983 arises out

10 of Mam’s arrest and subsequent prosecution. After patronizing various bars, Mam
11 and his friends exited Ziing’s Night Club in Fullerton, California, at
12 approximately 2:00 a.m. on October 23, 2010. (Def.’s Statement of
13 Uncontroverted Facts (“SUF”) ¶¶ 1-3, Doc. 72-1.)
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Meanwhile, Fullerton Police Department Officer Jonathan Miller was sitting

15 in his patrol car near Ziing’s in a parking lot adjacent to West Amerige Avenue.
16 (SUF ¶ 4.) Miller noticed two males engaged in a verbal argument, and he began
17 driving his patrol car towards the individuals. (SUF ¶¶ 4-5.) While en route,
18 Miller made contact with Sokha Leng while Leng’s car was stopped. (See SUF ¶¶
19 6,7.) At some point, Leng got out of his car and began interacting with Miller.
20 (See Pl.’s Ex. 17 (Khorn Leng Decl.) ¶ 7), Doc. 170-14.) Miller could smell
21 alcohol on Leng’s breath. (SUF ¶ 7.)
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The parties dispute the genesis of the altercation between Miller and Leng

23 (and whether Leng struck Miller with his fist), but—in any event—Miller grabbed
24 Leng and the two began to physically scuffle. (SUF ¶¶ 8-9; Pl.’s Resp. Def.’s
25 Statement of Uncontroverted Facts (“SGI”) ¶ 9, Doc. 172.)
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The altercation drew the attention of a crowd of bar patrons. (SUF ¶ 14.)

27 Several Fullerton Police Department (“FPD”) officers were called to assist, (SUF
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1 ¶ 15), and at some point, Defendants Officer Frank Nguyen and Officer Kenton
2 Hampton arrived on the scene. (SUF ¶¶ 24, 32.) When Hampton arrived on the
3 scene, he was concerned that the “crowd” of approximately five to seven people
4 “could possibly interfere” with Miller’s arrest of Sokha Leng. (SGI ¶¶ 116-117.)
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Officer Nguyen removed someone from Miller’s back and pushed that

6 suspect aside. (SGI ¶ 20.)
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In an effort to record the struggle between Miller and Leng, Mam moved in

8 close to the scuffle and began videotaping the incident on his cell phone. (SUF ¶
9 12.) Nguyen instructed Mam twice to “back off.” (SUF ¶ 24.) He then instructed
10 Mam to “back up” a few more times. (SGI ¶¶ 28, 30, 31, 34, 35, 37; Ex. A1
11 (“Mam Video”) at 0:57-1:06, Doc. 72-5.)
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Hampton then pointed his finger at Mam and other crowd members and

13 twice ordered them to “get back.” (SGI ¶¶ 41, 43.) The parties dispute whether
14 Mam was too close to Miller, and whether he (Mam) kept advancing after Officer
15 Hampton’s instructions to back up. (See SGI ¶¶ 18, 21, 23, 26, 27, 33, 36, 38.)
16 However, Mam does not argue that he in fact complied with the orders to move
17 back. Hampton then pushed a crowd member back and grabbed at Mam. (Mam
18 Video at 0:57-1:06.) Hampton seized Mam by the arm and in the process knocked
19 the cell phone out of Mam’s hands—whether this was intentional or unintentional
20 is in dispute. Hampton then led Mam to the police car, took him down with a “leg
21 sweep,” and handcuffed him. (Mam Video at 1:00-1:30; SUF ¶ 47; SGI ¶ 47.)
22 After the phone was knocked out of Mam’s hands, Densery Tim—a friend of
23 Mam—picked up the cell phone and resumed recording the incident. (SUF ¶ 55.)
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Hampton left Mam in handcuffs, face down on the ground, for about three

25 to five minutes while he assisted his fellow officers with crowd control. (SUF ¶
26 64.) Eventually, one or more of the officers was able to subdue, and arrest, Leng.
27 (SUF ¶ 65.)
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Hampton did not prepare or submit a police report concerning his detention

2 of Mam for violating California Penal Code section 148(a).1 (SUF ¶ 70.)
3 Hampton later testified in deposition that Nguyen had informed him (Hampton) at
4 the scene that Mam may have been involved in an attack on Officer Miller;
5 however, Nguyen testified at deposition that he did not identify Mam at the scene,
6 nor had he indicated to anyone, while at the scene, that Mam had been involved in
7 an attack on Miller. (Compare SUF ¶ 68 with SGI ¶ 68.)
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After Mam was handcuffed, he was placed in the back of a police vehicle

9 and eventually transported to Fullerton jail by Officer Ricardo Reynoso and
10 Corporal Daniel Solorio. (SUF ¶ 73.) Based on information he received from
11 Nguyen, Sergeant Diaz told Reynoso to book Mam for violating Penal Code
12 sections 148(a) (resisting, delaying, or obstructing an officer), 241(c) (assault
13 against a peace officer), 243(b) (battery against a peace officer), and 405a
14 (lynching). 2 (SUF ¶ 74.)
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After being transferred to the county jail, where he was booked and

16 processed, Mam was released from custody on Sunday, October 24, 2010. (SUF ¶
17 75.) On November 17, 2010, the Orange County District Attorney (“OCDA”)
18 filed a criminal Complaint against Mam and Sokha Leng, charging them both with
19 violating Penal Code sections 241(c), 243(b), and 148(a). (SUF ¶ 76.) Mam and
20 Leng were jointly tried before a jury in July 2011. (SUF ¶ 77.) The jury acquitted
21 Mam of all three charges, while it convicted Leng of all three charges. (SUF ¶¶
22 84-85.)
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All further references to the “Penal Code” are to the California Penal Code.
“The taking by means of a riot of any person from the lawful custody of any peace
26 officer is a lynching.” Cal. Penal Code § 405a.
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Based on the foregoing, Mam filed a Complaint in this Court on August 19,

2 2011, asserting the following claims against Officer Hampton: violation of 42
3 U.S.C. § 1983 (excessive force, false arrest, malicious prosecution, and
4 conspiracy); violation of 42 U.S.C. § 1985(2); violation of 42 U.S.C. 1985(3); and
5 violation of 42 U.S.C. § 1986. (Compl., Doc. 1.) On February 13, 2012, the
6 Court granted in part Hampton’s motion to dismiss, dismissing all but the § 1983
7 claim. (See Order at 11-12, Doc. 36.) Hampton now moves for summary
8 judgment on the § 1983 claim. (See Mot.)
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II.

Legal Standard
In deciding a motion for summary judgment, the court must view the

12 evidence in the light most favorable to the non-moving party and draw all
13 justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
14 255 (1986). “The court shall grant summary judgment if the movant shows that
15 there is no genuine dispute as to any material fact and the movant is entitled to
16 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual issue is “genuine”
17 when there is sufficient evidence such that a reasonable trier of fact could resolve
18 the issue in the non-movant’s favor, and an issue is “material” when its resolution
19 might affect the outcome of the suit under the governing law. Anderson, 477 U.S.
20 at 248.
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“A party asserting that a fact cannot be or is genuinely disputed must

22 support the assertion by” citing to particular materials in the record or showing
23 that the materials cited do not establish that absence or presence of a genuine
24 dispute. Fed. R. Civ. P. 56(c)(1). Reference to the record may include citation to
25 “depositions, documents, electronically stored information, affidavits or
26 declarations, stipulations (including those made for purposes of the motion only),
27 admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
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1 56(c)(1)(A). The moving party bears the initial burden of demonstrating the
2 absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
3 (1986). The burden then shifts to the non-moving party to set out specific facts
4 showing a genuine issue for trial. Id.
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Discussion

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Officer Hampton moves for summary judgment on Mam’s § 1983 claim,

8 under all theories—false arrest, First Amendment retaliation, excessive force, and
9 conspiracy.3 (See Mot.) The Court reviews the theories in turn.
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A. False Arrest

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Mam’s first theory of recovery under § 1983 is false arrest; he contends that

12 Hampton lacked probable cause to arrest him. “A claim for unlawful arrest is
13 cognizable under § 1983 as a violation of the Fourth Amendment, provided the
14 arrest was without probable cause or other justification.” Dubner v. City & Cnty.
15 of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). Moreover, an officer’s
16 “subjective reason for making the arrest need not be the criminal offense as to
17 which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S.
18 146, 153 (2004).
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Here, Hampton has shown that there is no dispute as to any material facts

20 concerning probable cause for Mam’s arrest—such probable cause existed.4 Penal
21 Code section 148 provides:
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Every person who willfully resists, delays, or obstructs any public
officer [or] peace officer . . . in the discharge or attempt to discharge

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Plaintiff’s counsel made clear at the hearing that Mam was not asserting a claim for
malicious prosecution against Hampton.
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At the hearing, Hampton’s counsel conceded that—for purposes of this Motion—
there is no relevant distinction between referring to Hampton’s seizure of Mam as a
27 “detention” or “arrest.”

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any duty of his or her office or employment, when no other
punishment is prescribed, shall be punished by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.

4 Penal Code § 148(a)(1).
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“Under California Penal Code § 148(a)(1), ‘[t]he legal elements of a

6 violation . . . are as follows: (1) the defendant willfully resisted, delayed, or
7 obstructed a peace officer, (2) when the officer was engaged in the performance of
8 his or her duties, and (3) the defendant knew or reasonably should have known
9 that the other person was a peace officer engaged in the performance of his or her
10 duties.’” Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (quoting In re
11 Muhammed C., 95 Cal. App. 4th 1325, 1329 (2002) (citations omitted)).
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The public does have a First Amendment right to criticize the police—

13 including using profanities and obscene gestures—without getting arrested for
14 such conduct. See, e.g., City of Houston v. Hill, 482 U.S. 451 (1987); Duran v.
15 City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1989). Thus, the Ninth Circuit has
16 held that “verbal protests [can] not support an arrest under § 148.” Mackinney v.
17 Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995). However, “a person [may not] avoid
18 arrest or conviction for the conduct of refusing to comply with a police order to
19 move back during an arrest.” Sorgen v. City and Cnty. of San Francisco, No. C
20 05-03172 THE, 2006 WL 2583683, at *5 (N.D. Cal. Sept. 7, 2006). See U.S. v.
21 Poocha, 259 F.3d 1077, 1082-83 (9th Cir. 2001) (bystander could not be
22 convicted for yelling obscenities at law enforcement but could be convicted of
23 defying order to leave scene of arrest).
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The police have a right to secure the vicinity around an arrest they are

25 effecting. Thus, refusing to move back pursuant to an order of a peace officer is a
26 violation of Penal Code section 148(a)(1). In re Muhammed C. is instructive on
27 this point. The defendant, a juvenile, was convicted for violating Penal Code
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1 section 148. In that case police officers had arrested Richard Robinson on drug
2 charges and placed him in the back of a squad car. In re Muhammed C., 95 Cal.
3 App. 4th at 1328. The back window of the squad car was partially down, and the
4 juvenile “approached the back of the patrol car and spoke to Robinson.” Id. One
5 of the officers ordered the defendant to move away, and then the other officer did
6 as well. At that point, the juvenile raised his hand toward the officers. Id. The
7 officers then ordered him to get away from the car again. Id. Finally, they
8 arrested him. Id. The panel of the California court of appeal affirmed the
9 conviction: “Here a reasonable inference could be drawn that appellant willfully
10 delayed the officers’ performance of duties by refusing the officers’ repeated
11 requests that he step away from the patrol car . . . .” Id. at 1330. In short, refusing
12 to back away from an arrestee after the police have ordered one to do so is a
13 violation of Penal Code section 148.
The Mam Video clearly shows that Mam was very close5 to the arrest of

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15 Sokha Leng, and that Officer Nguyen ordered him (and presumably others) to “get
16 back” multiple times.6 Officer Hampton then issued two more orders to “get
17 back” before seizing Mam. Mam’s reliance on People v. Quiroga, 16 Cal. App.
18 4th 961 (1993)—for the proposition that the mere failure to respond to an officer’s
19 command with “alacrity” is not a violation of section 148—is misplaced. Mam
20 ignored multiple orders to get back, and he never complied. His arrest is therefore
21 not actionable under § 1983 because probable cause existed to arrest him for
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It is undisputed that Mam’s cell phone did not have “the capability to zoom while

23 videotaping.” (SUF ¶ 13.)
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The Court can rely on the indisputable portions of the videos the parties submitted
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as evidence. See Briley v. City of Hermosa Beach, No. CV 05-8127 AG (SHx), 2008

25 WL 4443895, at *1 (C.D. Cal. Sept. 29, 2008) (citing Scott v. Harris, 550 U.S. 372, 380
(2007) (“When opposing parties tell two different stories, one of which is blatantly

26 contradicted by [a video], so that no reasonable jury could believe, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary

27 judgment.”) (alteration in original).
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1 violating Penal Code section 148(a)(1) based on his refusal to withdraw from the
2 immediate vicinity of the arrest. See Young v. Cnty. of Los Angeles, 655 F.3d
3 1156, 1170 (9th Cir. 2011) (“Young was not arrested for protesting prior to
4 complying with Deputy Wells’s order to reenter his truck, but for failing
5 altogether to comply with the order.”); Sorgen v. City and Cnty. of San Francisco,
6 No. C 05-03172 TEH, 2006 WL 2583683, at *5 (N.D. Cal. Sept. 7, 2006)
7 (holding that Quiroga’s “slow to reply” doctrine does not apply in case where
8 plaintiff never complied).
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Even assuming, arguendo, that Hampton’s arrest of Mam lacked probable

10 cause, Hampton would be entitled to qualified immunity. “Qualified immunity
11 shields federal and state officials from money damages unless a plaintiff pleads
12 facts showing (1) that the official violated a statutory or constitutional right, and
13 (2) that the right was ‘clearly established’ at the time of the challenged conduct.”
14 Ashcroft v. al-Kidd, --- U.S. ----, 131 S. Ct. 2074, 2080 (2011). This Court has
15 discretion to decide which of the two prongs of qualified-immunity analysis to
16 tackle first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). The doctrine
17 protects “all but the plainly incompetent or those who knowingly violate the law.”
18 Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotation marks and citation
19 omitted). This is an immunity from suit, not liability. See Mitchell v. Forsyth,
20 472 U.S. 511, 526 (1985).
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In this case, the second prong calls for the Court to determine “whether a

22 reasonable officer could have believed that probable cause existed to arrest the
23 plaintiff.” Franklin v. Fox, 312 F.3d 423, 437 (9th Cir. 2002) (internal citations
24 and quotation marks omitted). In light of the perimeter the officers were trying to
25 maintain around the arrest of Leng, a reasonable officer could have believed that
26 probable cause existed to arrest Mam for refusing get back after repeated orders to
27 that effect.
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The Motion is GRANTED as to this theory of Mam’s § 1983 claim.
B. First Amendment Retaliation
Mam next asserts that he was retaliated against for exercising his First

4 Amendment right to film the acts of the police in public—namely the Leng arrest.
5 (See Opp’n at 3-4.) Both parties acknowledge that, in general, individuals do
6 enjoy a First Amendment right to film matters of public interest. See Fordyce v.
7 City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); see also Glik v. Cunniffe, 655
8 F.3d 78, 82 (1st Cir. 2011) (holding that the First Amendment protects the right of
9 people to “videotape police carrying out their duties in public”). Mam argues that
10 he was arrested in retaliation for filming Leng’s arrest on his cell phone.
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“In this Circuit, an individual has a right ‘to be free from police action

12 motivated by retaliatory animus but for which there was probable cause.’” Ford
13 v. City of Yakima, --- F.3d ----, 11-35319, 2013 WL 485233, at *4 (9th Cir. Feb. 8,
14 2013) (quoting Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1235 (9th Cir.
15 2006)). “In order to establish a claim of retaliation in violation of the First
16 Amendment, [Mam’s] evidence must demonstrate that [Hampton’s] conduct
17 would chill a person of ordinary firmness from future First Amendment activity.
18 See Skoog, 469 F.3d at 1231-32. In addition, the evidence must enable [Mam]
19 ultimately to prove that the [Hampton’s] desire to chill his speech was a but-for
20 cause of [Hampton’s] allegedly unlawful conduct.” Ford, 2013 WL 485233, at *4
21 (citing Lacey, 693 F.3d at 916-17).
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Mam’s evidence is sufficient to meet the chilled-speech element because the

23 Ninth Circuit has expressly held “that a retaliatory police action such as an arrest
24 or search and seizure would chill a person of ordinary firmness from engaging in
25 future First Amendment activity.” Ford, 2013 WL 485233, at *4.
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The question is whether causation is met here. As explained above, the

27 video indisputably reveals that Mam was ordered multiple times to get back
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1 before he was ultimately arrested. (See Mam Video at 0:23-1:04.) Although
2 Mam was not ordered by any FPD officer to put his camera away, or to turn off
3 his camera, (SUF ¶¶ 52-53), the video clearly shows that Hampton seizes Mam, as
4 opposed to any other person near Mam, and that only Mam audibly announces
5 that he is recording the Leng struggle. Based on the record before the Court, the
6 only difference between Mam and those near him was the cell phone being used
7 to record. Moreover, the manner in which Mam was forced to the ground by a leg
8 sweep is also circumstantial evidence of some animus towards Mam. Thus, a
9 rational trier of fact could conclude that Hampton’s seizure of Mam, though
10 supported by probable cause, was motivated by Mam’s videotaping—a protected
11 activity.
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Hampton argues at length in his Motion that he is also entitled to qualified

13 immunity on this claim in light of the Supreme Court’s recent decision in Reichle
14 v. Howards, --- U.S. ----, 132 S. Ct. 2088 (2012). However, the Ford decision
15 makes it apparent that Reichle has not cast doubt on the Ninth Circuit’s prior
16 precedents holding that retaliatory arrests supported by probable cause are
17 actionable under § 1983. See Ford, 2013 WL 485233, at *3.
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The Motion is DENIED as to this theory of Mam’s § 1983 claim.
C. Excessive Force
Mam’s next § 1983 theory is that Hampton exercised excessive force

21 against him, in violation of his Fourth Amendment rights. “[A]ll claims that law
22 enforcement officers have used excessive force—deadly or not—in the course of
23 an arrest . . . should be analyzed under the Fourth Amendment and its
24 ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989)
25 (emphasis omitted); see also Smith v. City of Hemet, 394 F.3d 689, 700 (9th Cir.
26 2005) (en banc) (“A Fourth Amendment claim of excessive force is analyzed
27 under the framework outlined by the Supreme Court in Graham v. Connor . . . .”).
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To determine whether a defendant’s use of force was reasonable under the

2 Fourth Amendment, courts must balance “the nature and quality of the intrusion
3 of the individual’s Fourth Amendment interests against the countervailing
4 governmental interests at stake.” Graham, 490 U.S. at 396 (citing Tennessee v.
5 Garner, 471 U.S. 1, 8 (1985)). This analysis “requires careful attention to the
6 facts and circumstances of each particular case, including the severity of the crime
7 at issue, whether the suspect poses an immediate threat to the safety of the officers
8 or others, and whether he is actively resisting arrest or attempting to evade arrest
9 by flight.” Id. Moreover, the Ninth Circuit has held that courts may also consider
10 “the availability of alternative methods of capturing or subduing a suspect” and an
11 officer’s failure to warn a person before using force. Smith, 394 F.3d at 701, 703
12 (“In some cases . . . the availability of alternative methods of capturing or
13 subduing a suspect may be a factor to consider.”); Bryan v. MacPherson, 630 F.3d
14 805, 831 (9th Cir. 2009) (holding that courts may consider failure to warn, as well
15 as “other tactics if any were available to effect the arrest”).
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The “reasonableness inquiry in an excessive force case is an objective one”

17 and courts will attempt to determine whether the “officers’ actions are ‘objectively
18 reasonable’ in light of the facts and circumstances confronting them.” Smith, 394
19 F.3d at 701 (internal quotation marks omitted). “A simple statement by an officer
20 that he fears for his safety or the safety [of] others is not enough; there must be
21 objective factors to justify such a concern.” Bryan, 630 F.3d at 826 (quoting
22 Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)). An officer’s
23 unreasonable factual mistake can lead to a Fourth Amendment violation. See
24 Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (reversing
25 summary judgment because officer’s mistake of fact was unreasonable).
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The Court cannot conclude that the force Hampton applied in taking Mam

2 down with a leg sweep and handcuffing him on the ground was objectively
3 reasonable. (See Mam Video at 0:58 – 1:10; Pl.’s Ex. 15 at 0:19-0:29, Doc. 177.)
4

Hampton points out that Mam was never struck with an object, tased, or

5 sprayed with pepper spray, (SUF ¶¶ 61-63), and that Mam never sought medical
6 attention for any physical injuries he may have suffered as a result of the incident.
7 (SUF ¶ 86.) However, none of this is dispositive: Hampton has provided no
8 authority for the proposition that physical injury necessitating medical treatment is
9 a prerequisite to a claim for excessive force.
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The factors the Ninth Circuit has identified also militate against granting

11 summary judgment on this claim. First, the severity of the crime at issue weighs
12 against the need to drop a suspect to the ground. Second, while Hampton may
13 have reasonably believed that Mam (or any other member of the crowd) may have
14 posed a threat to Miller, he led Mam away from the crowd, so there is no evidence
15 before the Court that demonstrates that Hampton could not have at least attempted
16 to peacefully handcuff Mam, on the ground or while standing. On the video,
17 Mam is not seen resisting or avoiding arrest in any way. And again, there may
18 have been another way to handcuff Mam, especially after Mam was led from the
19 crowd.
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The Motion is DENIED as to this theory of Mam’s § 1983 claim.
D. Conspiracy to Violate Civil Rights
“To establish liability for a conspiracy in a § 1983 case, a plaintiff must

23 demonstrate the existence of an agreement or meeting of the minds to violate
24 constitutional rights.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir.
25 2010) (internal citations and quotation marks omitted). “Such an agreement need
26 not be overt, and may be inferred on the basis of circumstantial evidence such as
27 the actions of the defendants.” Id. “However, the evidence adduced must
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1 demonstrate more than the mere fact that two people did or said the same thing;
2 the evidence must actually point to an agreement.” Myers v. City of Hermosa
3 Beach, 299 F. App’x 744, 747 (9th Cir. 2008) (citing Margolis v. Ryan, 140 F.3d
4 850, 853 (9th Cir. 1998); Ting v. United States, 927 F.2d 1504, 1512-13 (9th Cir.
5 1991)).
6

Hampton has met his initial burden of demonstrating the absence of a

7 material fact as to Mam’s conspiracy claim by pointing to the lack of evidence
8 that Hampton conspired with any of his fellow officers. (See Mot. at 16-17.) As
9 explained above, the burden thus shifts to Mam.
10

In support of his conspiracy claim, Mam contends that “Hampton and the

11 other Officer Defendants submitted false police reports to obscure Hampton’s
12 actions and justify Plaintiff’s arrest,” (Opp’n at 12), relying on the undisputed fact
13 that Hampton’s police report does not discuss the Mam incident. (SUG ¶ 69; SGI
14 ¶ 69.) This evidence alone—the silence of Hampton’s report on the Mam
15 incident—is insufficient evidence from which a reasonable jury could infer a tacit
16 agreement between Hampton and his fellow officers.
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Mam also points to Nguyen’s deposition testimony that he told Reynoso

18 (because Reynoso was doing the booking) that Mam was the one who attacked
19 Officer Miller. (See Opp’n at 11 (citing SGI ¶ 135).) Even if that is sufficient
20 evidence of a meeting of the minds between Reynoso and Nguyen, it is not
21 evidence of a conspiracy between Hampton and Nguyen. He further relies on
22 alleged false testimony of Miller and Nguyen at Mam’s trial, but again he has not
23 brought forth circumstantial evidence of a tacit agreement between Hampton and
24 any of the other officers.7
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Finally, he relies on assertion that Hampton “assaulted Plaintiff and arrested him
without probable cause.” (Opp’n at 12.) However, as explained above, Hampton had
27 probable cause to arrest Mam.

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When asked at the hearing what evidence Mam had of Hampton’s

2 involvement in a conspiracy, Mam’s counsel replied that Hampton misled Deputy
3 District Attorney Rebecca Reed in withholding from her the fact that he, not
4 Nguyen, was the arresting officer. However, neither Plaintiff’s Response to
5 Defendant’s Statement of Uncontroverted Facts nor his Opposition mentions this
6 contention. (See also SGI ¶ 81 (not disputing Hampton’s characterization that
7 Hampton responded “honestly and truthfully” to Reed’s questions about
8 Hampton’s involvement in the incident).)
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Hampton’s Motion is GRANTED as to this theory of Mam’s § 1983 claim.

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11 IV.

Conclusion

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For the reasons set forth above the Court GRANTS Defendant’s Motion as

13 to the false arrest, malicious prosecution and conspiracy theories, but DENIES
14 Defendant’s Motion as to the First Amendment retaliation and excessive force
15 theories.
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DATED: March 12, 2013
_________________________________________
JOSEPHINE STATON TUCKER
UNITED STATES DISTRICT JUDGE

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