Lewis v. City of Fresno et al

Filing 36

ORDER GRANTING Defendant's Unopposed 29 Motion for Summary Judgment, signed by District Judge Lawrence J. O'Neill on 12/13/2013. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEWIS,

CASE NO. 1:11-CV-01415-LJO-SKO
Plaintiff,

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ORDER GRANTING DEFENDANT’S
UNOPPOSED MOTION FOR
SUMMARY JUDGMENT (DOC. 29)

v.

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CITY OF FRESNO, et al.,
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Defendants.
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I. INTRODUCTION

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Plaintiff Robert Lewis, proceeding pro se and in forma pauperis, filed this civil rights action

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15 pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Defendants the City of Fresno, the Fresno Police
16 Department (“FPD”), and FPD Officer Gregory Catton. Doc. 1. On December 20, 2011, the Magistrate
17 Judge screened Plaintiff’s complaint and found that it states a Section 1983 claim for damages against
18 Defendant Catton for alleged excessive force, but fails to state any other claims for relief. Doc. 8. Before
19 the Court for decision is Defendant Catton’s motion for summary judgment on the remaining Section
20 1983 excessive force claim. Doc. 29. Plaintiff failed to respond to the motion, despite having been
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21 served at the new mailing address provided by Plaintiff. See Docs. 30-33. The hearing on the motion,

22 originally set for December 11, 2013, was vacated, and the matter was submitted for decision on the
23 pleadings pursuant to Local Rule 230(g). Doc. 34.
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On December 11, 2013, two weeks after his opposition was due, Plaintiff requested an extension of time to respond to the

26 motion. That request was denied for the reasons set forth in a separate order. See Doc. 35.
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II. FACTUAL BACKGROUND2

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According to the Declaration of Officer Catton, the content of which is undisputed, just prior to

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1:00 a.m. on August 22, 2009, Officer Catton responded along with several other officers to a

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disturbance call from a gas station in Fresno. Doc. 29-3 at ¶ 2. The caller reported that a black male

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subject in his 50s wearing a white shirt and shorts had reportedly thrown a beer bottle through a

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window. Id. Upon the officers’ arrival, the gas station clerk pointed out a man, later identified as Robert

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Lewis, who was shouting at a female in the parking lot while swinging his arms near the woman’s head.

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Id.

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Officer Catton and the other officers approached Mr. Lewis and instructed him to get on the

10 ground. Id. at ¶ 3. Lewis ignored this command and responded by stating: “screw that.” Id. Officer
11 Catton then pushed Lewis to the ground and managed to get him handcuffed with the assistance of other
12 officers. Id. Mr. Lewis smelled strongly of alcohol. Id. In between ranting such phrases as “peckerwood
13 nigger,” Mr. Lewis complained of back pain and shortness of breath. Id. at ¶ 4. Officer Catton requested
14 an ambulance to check Lewis’ medical condition. Id.
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When the ambulance arrived, EMTs requested that Officer Catton remove one of Mr. Lewis’

16 handcuffs, so they could check his vital signs. Id. Although apprehensive to do so, Officer Catton
17 removed Mr. Lewis’ left hand from the handcuffs and secured the right hand to the gurney. Id. While the
18 EMTs were checking Lewis’ vitals, Lewis turned to Catton and stated: “I’m going to kick your ass.” Id.
19 In response, Catton informed Lewis that he was going to handcuff his left hand to the gurney as well. Id.
20 When Catton attempted to do so, however, Lewis held his arm closely to his chest and kicked Catton in
21 the chest hard enough to knock Catton off the gurney. Id. at ¶ 5. As Catton stood back up to grab Mr.
22 Lewis’ left arm, Lewis kicked Catton again with both feet. Id. Catton then managed to grab Lewis’ left
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On August 13, 2013, Defendant served upon Plaintiff at a Sacramento address Requests for Admission (“RFAs”) largely

24 tracking the content of Officer Catton’s Declaration. See Doc. 29-4. Plaintiff failed to respond to the RFAs. This might
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warrant treatment of the facts set forth therein as admitted. However, only a few weeks later, on September 3, 2013, mail sent
by the Court to the same Sacramento address was returned as undeliverable. As mentioned above, Plaintiff filed a notice of
change of address in November 2013. It is not clear whether the RFAs ever actually reached Plaintiff. Because Officer
Catton’s declaration has been made a part of the summary judgment record, which has been served upon Plaintiff, out of an
abundance of caution, the Court will rely upon the Declaration instead of the RFAs.

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arm, at which point Lewis bit down on Catton’s left arm, drawing blood. Id. While Catton struggled to

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control Lewis, Lewis bit Catton’s arm several more times. Id.

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Because Lewis continued to bite and kick, Officer Catton warned Lewis that he would be Tased

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if he did not stop. Id. at ¶ 6. When Lewis continued to ignore Officer Catton’s commands, Catton

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discharged his Taser into Lewis’ neck. Id. Although the Taser seemed to momentarily disable Lewis, as

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soon as the Taser’s immediate impacts subsided, Lewis again began to struggle violently. Id. Eventually,

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several other officers arrived, and, together, they were able to handcuff Lewis’ free hand to the gurney.

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Id.

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III. STANDARD OF DECISION
Summary judgment is proper if the movant shows “there is no genuine dispute as to any material

11 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. The moving party
12 bears the initial burden of “informing the district court of the basis for its motion, and identifying those
13 portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with
14 the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”
15 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citation and quotation omitted). A fact is
16 material if it could affect the outcome of the suit under the governing substantive law; “irrelevant” or
17 “unnecessary” factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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If the moving party would bear the burden of proof on an issue at trial, that party must

20 “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.”
21 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, if the non-moving
22 party bears the burden of proof on an issue, the moving party can prevail by “merely pointing out that
23 there is an absence of evidence to support the non-moving party’s case.” Id. When the moving party
24 meets its burden, the non-moving party must demonstrate that there are genuine disputes as to material
25 facts by either:
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(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials; or

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(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c).

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In ruling on a motion for summary judgment, a court does not make credibility determinations or

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weigh evidence. See Anderson, 477 U.S. at 255. Rather, “[t]he evidence of the non-movant is to be

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believed, and all justifiable inferences are to be drawn in his favor.” Id. Only admissible evidence may

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be considered in deciding a motion for summary judgment. Fed. R. Civ. P. 56(c)(2). “Conclusory,

10 speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and
11 defeat summary judgment.” Soremekun, 509 F.3d at 984.
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IV. DISCUSSION

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Fourth Amendment Excessive Force Standard & Qualified Immunity.

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The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const.

15 amend. IV. “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the
16 Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the
17 individual's Fourth Amendment interests against the countervailing governmental interests at stake.”
18 Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation and citation omitted).
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...Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it.
Because the test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application, however, its
proper application requires careful attention to the facts and circumstances
of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.
Id. (internal quotations and citations omitted).
The reasonableness of a particular use of force must be judged from the
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perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.... With respect to a claim of excessive force...: Not
every push or shove, even if it may later seem unnecessary in the peace of
a judge's chambers, violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.
Id. at 396-97 (internal quotations and citations omitted).
“As in other Fourth Amendment contexts ... the reasonableness inquiry in an excessive force
case is an objective one: the question is whether the officers’ actions are objectively reasonable in light
of the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397 (internal quotation and citation omitted). Liability for damages under § 1983
only arises upon a showing of personal participation by the defendant. Starr v. Baca, 652 F.3d 1202,
1221 (9th Cir. 2011) (internal citation and quotation omitted). Each Defendant’s conduct must be
independently evaluated.
Qualified immunity shields government officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The protection of qualified
immunity applies regardless of whether the government official makes an error that is “a mistake of law,
a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (internal quotation and citation omitted). The doctrine of qualified immunity
protects “all but the plainly incompetent or those who knowingly violate the law....” Malley v. Briggs,
475 U.S. 335, 341 (1986). Because qualified immunity is “an immunity from suit rather than a mere
defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted).
The qualified immunity inquiry has two prongs: (1) “whether the facts that a plaintiff has alleged
... or shown ... make out a violation of a constitutional right,” and (2) “whether the right at issue was
‘clearly established’ at the time of defendant's alleged misconduct.” Wilkinson v. Torres, 610 F.3d 546,
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550 (9th Cir. 2010) (quoting Pearson, 555 U.S. at 129). “The relevant, dispositive inquiry in

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determining whether a right is clearly established is whether it would be clear to a reasonable officer that

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his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).

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This inquiry is wholly objective and is undertaken in light of the specific factual circumstances of the

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case. Id. at 201, 205. “The principles of qualified immunity shield an officer from personal liability

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when an officer reasonably believes that his or her conduct complies with the law.” Pearson, 555 U.S. at

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245. Where there is a dispute in the underlying evidence, qualified immunity cannot be granted.

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Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003) (“Where the officers’ entitlement to

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qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the

10 non-moving party, summary judgment is not appropriate.”).
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In the excessive force context, the first step of the qualified immunity analysis requires an

12 inquiry into “whether it would be objectively reasonable for the officer to believe that the amount of
13 force employed was required by the situation he confronted.” Id. at 954 (quoting Saucier v Katz, 533
14 U.S. 194, 205 (2001)). “That is, the first step in the analysis is an inquiry into the objective
15 reasonableness of the officer's belief in the necessity of his actions, and there is no Fourth Amendment
16 violation if the officer can satisfy this standard.” Id. (internal citation and quotation omitted) (emphasis
17 in original). The second step of the analysis inquires whether the officer was reasonable in his belief that
18 his conduct did not violate the Constitution. “This step, in contrast to the first, is an inquiry into the
19 reasonableness of the officer's belief in the legality of his actions.” Id. at 955. “Even if his actions did
20 violate the Fourth Amendment, a reasonable but mistaken belief that his conduct was lawful would
21 result in the grant of qualified immunity.” Id.
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Critically, however, the Court must not lose sight of the summary judgment standard. If facts

23 material to resolving Fourth Amendment “reasonableness” and/or any of the related qualified immunity
24 inquiries are disputed, those facts must be viewed in the light most favorable to the non-moving party.
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B.

Constitutional Violation.
The first prong of the qualified immunity analysis applied at the summary judgment stage

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requires a Court to inquire “whether the facts that a plaintiff has … shown ... make out a violation of a

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constitutional right.” Wilkinson, 610 F.3d at 550. Here, the only evidence presented is that provided by

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Officer Catton. According to his version of the events, he responded to Plaintiff’s increasingly

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belligerent conduct with force designed to protect himself and the emergency services personnel from

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harm. Under Graham, the key question is “whether the officers’ actions are objectively reasonable in

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light of the facts and circumstances confronting them, without regard to their underlying intent or

10 motivation.” 490 U.S. at 397. Based upon the only evidence presented, the Court reaches the inescapable
11 conclusion that Officer Catton’s use of force was objectively reasonable. The greatest application of
12 force by Officer Catton was his use of the Taser. As another Judge in this District recently summarized:
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[I]n cases where a handcuffed arrestee is struggling or resisting, courts have found that
use of force, including a taser, may be constitutionally appropriate. See Sanders v. City of
Dothan, 409 Fed. Appx. 285, (11th Cir. 2011) (finding that as of August 24, 2005 the law
was not clearly established that an officer violated a constitutional right by using a taser
on an arrestee while he was handcuffed in the back of a patrol car to prevent him from
swallowing contraband); Buckley v. Haddock, 292 Fed. Appx. 791, 787, 2008 WL
4140297, at *6 (11th Cir. 2008) (holding that, as of March 2004, it was not clearly
unlawful to use a taser to get a noncompliant, handcuffed suspect off the ground and into
a patrol car after a traffic stop); Zivojinovich v. Barner, 525 F.3d 1059, (11th Cir. 2008)
(finding that defendant officer did not use excessive force by deploying a taser against a
handcuffed arrestee who was intentionally spraying blood at the officer through his
broken nose), Yarnall v. Mendez, 509 F.Supp.2d 421, 433 (D. Del. 2007) (holding that it
was reasonable and necessary for defendant officers to use taser and physical force
against a fleeing, handcuffed suspect); Rose v. City of Lafayette, 2007 WL 485228, at * 6
(D. Colo. 2007) (finding that a reasonable officer would not have had “fair notice” that it
was objectively unreasonable to use a taser on a handcuffed arrestee in detention who had
kicked an officer), Johnson v. City of Lincoln Park, 434 F.Supp.2d 467, (E.D. Mich.
2006) (holding that use of a taser on a handcuffed, resisting, struggling, unarmed 14–
year–old suspect was objectively reasonable), Carroll v. County Trumbull, 2006 WL
1134206, *13 (N.D. Ohio, Apr.25, 2006) (granting qualified immunity to officer who
used taser on a kicking, resisting, handcuffed arrestee); Wilkomm v. Mayer, 2006 WL
582044, at *4 (W.D. Wis., Mar.9, 2006) (holding that as a reasonable officer could have
believed it was constitutional to use a taser to gain compliance from a belligerent,
handcuffed arrestee); Devoe v. Rebant, 2006 WL 334297, at *7 (E.D. Mich. 2006)
(finding that it was objectively reasonable for defendant officer to use taser on
handcuffed plaintiff who would not get into the officer's patrol car).
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Wade v. Fresno Police Dep't, 1:09-CV-0599 AWI-BAM, 2012 WL 253252 (E.D. Cal. Jan. 25, 2012)

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aff'd, 529 F. App'x 840 (9th Cir. 2013) (emphasis added).

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It is not necessary to proceed to the second step of the qualified immunity analysis, as Plaintiff’s

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claim fails at the first step. Accordingly, Defendant’s motion for summary judgment as to the remaining

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excessive force claim against Defendant Catton is GRANTED.

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V. CONCLUSION

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For the reasons set forth above, Defendant’s motion for summary judgment is GRANTED. This
disposes of the only remaining claim in this case.
The Clerk of Court is directed to enter judgment for Defendant and against Plaintiff.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

December 13, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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