Rahal et al v. The United States of America, Internal Revenue Service

Filing 14

ORDER Extending Time to File a Response, signed by Magistrate Judge Barbara A. McAuliffe on 3/23/2012. (IT IS ORDERED THAT the time for defendantUnited States to answer or respond to the Amended Complaint filed on 3/8/2012, is extended to 3/30/2012.)(Gaumnitz, R)

Download PDF
1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 ROBERT RODRIGUEZ, CASE NO. 1:11-CV-01371-LJO-DLB 13 Plaintiff, 14 15 SUMMARY JUDGMENT DECISION (Doc. 24) vs. OFFICER TUSHNET, 16 Defendant. / 17 18 I. INTRODUCTION 19 Plaintiff Robert Rodriguez (“Mr. Rodriguez”), proceeding pro se, alleges that defendant Geoff 20 Tushnet (“Officer Tushnet”), an officer for the Fresno Police Department, violated his Fourth 21 Amendment rights by using excessive force during his arrest, pursuant to 42 U.S.C. § 1983 (“section 22 1983”). Officer Tushnet seeks summary judgment on the ground that the use of force was objectively 23 reasonable. Officer Tushnet also argues that he is entitled to qualified immunity. The motion is 24 unopposed.1 For the reasons discussed below, this Court GRANTS Officer Tushnet’s motion for 25 summary judgment. 26 1 27 28 In the absence of Mr. Rodriguez’s opposition, this Court carefully reviewed and considered the entire record to determine whether defendant’s motion for summary judgment is well supported. Omission of reference to an argument, document, or paper is not to be construed to the effect that this Court did not consider it. This Court thoroughly reviewed, considered, and applied the evidence and matters it deemed admissible, material, and appropriate for summary judgment. 1 1 II. BACKGROUND 2 A. Officer Tushnet’s Statement of Facts2 3 In the late evening hours of June 23, 2010, Officer Tushnet was on duty with his canine partner, 4 Kubo. (Doc. 24-4, ¶ 2). The two responded to a residential area where other officers had pursued a stolen 5 vehicle. (Doc. 24-4, ¶ 2). Officer Tushnet was told that the suspect fled on foot in between houses. 6 (Doc. 24-4, ¶ 2). A police helicopter was dispatched to the scene and gave at least two announcements 7 that all residents should return to their homes because a police dog was going to be used to search the area 8 and that the failure of the suspect to surrender could result in a dog bite. (Doc. 24-4, ¶ 3). Officer 9 Tushnet gave a similar announcement from the ground. (Doc. 24-4, ¶ 3). After approximately ten 10 minutes, there was no response from the suspect so Officer Tushnet and Kubo began a search of the area. 11 (Doc. 24-4, ¶ 3, 5). 12 When the duo began their search, Officer Tushnet knew that the suspect had already demonstrated 13 a complete disregard for the public’s safety by fleeing from officers by driving a car at high speeds 14 through a residential area at night. (Doc. 24-4, ¶ 4). It was also clear to Officer Tushnet that the suspect 15 was not going to surrender voluntarily and had ample time to gain a position of tactical advantage over 16 officers conducting a search of the area. (Doc. 24-4, ¶ 4). Further, Officer Tushnet was aware that the 17 suspect had not been searched for weapons. (Doc. 24-4, ¶ 4). 18 Officer Tushnet and Kubo began their search in the backyard of a home where the suspect was 19 last seen. (Doc. 24-4, ¶ 5). Kubo immediately alerted to the presence of a human in an adjacent lot. 20 (Doc. 24-4, ¶ 5). The two moved to the adjacent lot and Officer Tushnet stayed in a position of cover 21 while Kubo searched the area. (Doc. 24-4, ¶ 5). When Officer Tushnet heard a commotion, indicating 22 that Mr. Rodriguez had been located, Officer Tushnet immediately left his position of cover and 23 discovered that Kubo was biting Mr. Rodriguez’s right leg. (Doc. 24-4, ¶ 5). Officer Tushnet was unable 24 to see Mr. Rodriguez’s hands which were concealed beneath his torso so he ordered Mr. Rodriguez to 25 show his hands. (Doc. 24-4, ¶ 6). Mr. Rodriguez complied and Officer Tushnet immediately removed 26 2 27 28 Because the motion is unopposed, this Court considers defendant’s version of the facts as undisputed for purposes of this motion. See Fed. R. Civ. P. 56(e)(2) (if a party fails to address another party’s assertion of fact, the court may consider the fact undisputed for purposes of the motion); Beard v. Banks, 548 U.S. 521, 527 (2006) (holding that the failure to specifically challenge facts identified in moving party’s statement deemed admission of those facts). 2 1 Kubo from the bite. (Doc. 24-4, ¶ 6). No other physical force was used when two officers handcuffed 2 Mr. Rodriguez. (Doc. 24-4, ¶ 6). Another officer identified Mr. Rodriguez as the person who fled from 3 the stolen vehicle. (Doc. 24-4, ¶ 6). An ambulance was summoned and treated Mr. Rodriguez’s injury. 4 (Doc. 24-4, ¶ 6). Mr. Rodriguez was then transported to the Community Regional Medical Center 5 (“CMC”) for further examination and treatment. (Doc. 24-4, ¶ 6). While at the CMC, Mr. Rodriguez 6 admitted to using methamphetamine. (Doc. 24-4, ¶ 7). A drug evaluation confirmed that Mr. Rodriguez 7 was under the influence. (Doc. 24-4, ¶ 7). 8 B. Procedural History 9 On August 17, 2011, Mr. Rodriguez filed a pro se complaint in which he alleged a claim under 10 section 1983 for excessive force in violation of the Fourth Amendment against Officer Tushnet and police 11 dog Kubo. (Doc. 1, p. 3-4). Police dog Kubo was dismissed from the complaint with prejudice. (Doc. 12 7). On November 10, 2011, Officer Tushnet filed an answer to the complaint and discovery commenced. 13 (Docs. 12, 13). On January 13, 2012, Officer Tushnet filed a motion for summary judgment, pursuant 14 to Fed. R. Civ. P. 56. (Doc. 15). Mr. Rodriguez did not oppose the motion nor file a statement of non15 opposition. On February 13, 2012, Officer Tushnet withdrew his motion for summary judgment after 16 discovering a clerical error in the proof of service. (Doc. 22). Officer Tushnet assured the Court that he 17 would re-serve the motion with the corrected service information to ensure that Mr. Rodriguez had an 18 opportunity to respond. (Doc. 22). On February 14, 2012, Officer Tushnet re-filed his motion for 19 summary judgment. (Doc. 24). Mr. Rodriguez did not oppose the motion nor file a statement of non20 opposition. This Court VACATES the March 29, 2012, hearing or oral argument, pursuant to Local Rule 21 230(g). 22 III. LEGAL STANDARDS 23 A. Motion for Summary Judgment 24 Summary judgment is appropriate when the movant shows that “there is no genuine dispute as 25 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v. 27 Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment is 28 to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 3 1 Matsushita Elec. Indus. Co., 475 U.S. at 587. 2 To carry its burden of production on summary judgment, a moving party “must either produce 3 evidence negating an essential element of the nonmoving party's claim or defense or show that the 4 nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of 5 persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th 6 Cir. 2000); see Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (moving party is 7 able to prevail “by pointing out that there is an absence of evidence to support the nonmoving party's 8 case”). 9 If “a moving party carries its burden of production, the nonmoving party must produce evidence 10 to support its claim or defense.” Nissan Fire & Marine Ins. Co., 210 F.3d at 1103. “If the nonmoving 11 party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins 12 the motion for summary judgment.” Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) 13 (Fed. R. Civ. P. 56 “mandates the entry of summary judgment, after adequate time for discovery and upon 14 motion, against a party who fails to make a showing sufficient to establish the existence of an element 15 essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a 16 situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof 17 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 18 immaterial.”) 19 Fed. R. Civ. P. 56(e)(3) provides that when a party “fails to properly address another party’s 20 assertion of fact,” a court may “grant summary judgment if the motion and supporting materials – 21 including the facts considered undisputed – show that the movant is entitled to it.” “In the absence of 22 specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly 23 supported summary judgment motion should be granted.” Nilsson, Robbins, et al. v. Louisiana Hydrolec, 24 854 F.2d 1538, 1545 (9th Cir. 1988) (per curiam). When a summary judgment motion is unopposed, a 25 court must “determine whether summary judgment is appropriate – that is, whether the moving party has 26 shown itself to be entitled to judgment as a matter of law.” Anchorage Associates v. V.I. Bd. of Tax 27 Review, 922 F.2d 168, 175 (3rd Cir. 1990). A court “cannot base the entry of summary judgment on the 28 mere fact that the motion [is] unopposed, but, rather, must consider the merits of the motion.” United 4 1 States v. One Piece of Real Property, etc., 363 F.3d 1099, 1101 (11th Cir. 2004). A court “need not sua 2 sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensure 3 that the motion itself is supported by evidentiary materials.” Id. 4 B. Section 1983 5 “Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting 6 under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant 7 of some right, privilege, or immunity protected by the Constitution or laws of the United States.” Leer 8 v. Murphy, 844 F.2d 628, 632-633 (9th Cir. 1988). “Section 1983 ‘is not itself a source of substantive 9 rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. 10 Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Section 11 1983 and other federal civil rights statutes address liability “in favor of persons who are deprived of 12 ‘rights, privileges, or immunities secured’ to them by the Constitution.” Carey v. Piphus, 435 U.S. 247, 13 253 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976)). Thus, in any section 1983 suit it 14 must be determined “whether the plaintiff has been deprived of a right ‘secured by the Constitution and 15 laws.’” Baker, 443 U.S. at 140. Stated differently, in any section 1983 suit the claimant must identify 16 the specific constitutional right allegedly infringed. Albright, 510 U.S. at 271. “Section 1983 imposes 17 liability for violations of rights protected by the Constitution, not for violations of duties of care arising 18 out of tort law.” Baker, 443 U.S. at 146. 19 IV. DISCUSSION 20 A. Excessive Force 21 The gravamen of Mr. Rodriguez’s section 1983 claim is that Officer Tushnet used excessive force 22 in violation of the Fourth Amendment by allowing police dog Kubo to bite and subdue him. Officer 23 Tushnet seeks summary judgment arguing that the use of force was objectively reasonable. 24 “A Fourth Amendment claim of excessive force is analyzed under the framework outlined by the 25 Supreme Court in Graham v. Connor, 490 U.S. 386 [(1989)].” Smith v. City of Hemet, 394 F.3d 689, 700 26 (9th Cir. 2005) (en banc). The pertinent question in an excessive force case is whether the use of force 27 was “objectively reasonable in light of the facts and circumstances confronting [the officer], without 28 regard to their underlying intent or motivation.” Graham, 490 U.S. at 397 (internal quotation marks 5 1 omitted); Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007). Determining whether a 2 specific use of force was reasonable “requires a careful balancing of the nature and quality of the intrusion 3 on the individual’s Fourth Amendment interests against the countervailing governmental interests at 4 stake.” Graham, 490 U.S. at 396 (internal quotation marks omitted); Blankenhorn, 485 F.3d at 477. 5 The Ninth Circuit has explained: 6 7 8 9 10 11 We apply Graham by first considering the nature and quality of the alleged intrusion; we then consider the governmental interests at stake by looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001). As we have previously explained, “[t]hese factors, however, are not exclusive. Rather, we examine the totality of the circumstances and consider ‘whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.’” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). 12 13 Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). “In some cases, for example, the 14 availability of alternative methods of capturing or subduing a suspect may be a factor to consider.” Smith, 15 394 F.3d at 701. “Ultimately the most important Graham factor is whether the suspect posed an 16 immediate threat to the safety of the officers or others.” Mattos, 661 F.3d at 441 (internal quotation 17 marks omitted). When considering whether there was an immediate threat, the Ninth Circuit has 18 explained that “a simple statement by an officer that he fears for his safety or the safety of others is not 19 enough; there must be objective factors to justify such a concern.” Id. at 441-42 (internal quotation marks 20 omitted). Reasonableness “must be judged from the perspective of a reasonable officer on the scene, 21 rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396; Drummond v. City of Anaheim, 22 343 F.3d 1052, 1058 (9th Cir. 2003). Moreover, “[t]he calculus of reasonableness must embody 23 allowance for the fact that police officers are often forced to make split-second judgments - in 24 circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary 25 in a particular situation.” Graham, 490 U.S. at 396-97. 26 1. Nature and Quality of the Force 27 Applying the Graham factors, this Court first considers the nature and quality of the force used 28 against Mr. Rodriguez: a dog bite to the leg. The use of dogs to find, bite, and hold concealed suspects 6 1 is not per se unreasonable. Chew v. Gates, 27 F.3d 1432, 1447 (9th Cir. 1994). However, “under some 2 circumstances the use of such a ‘weapon’ might become unlawful.” Mendoza v. Block, 27 F.3d 1357, 3 1362 (9th Cir. 1994). For instance, the excessive duration of a bite and the improper encouragement of 4 the continuation of an attack could constitute excessive force. See Watkins v. City of Oakland, 145 F.3d 5 1087, 1093 (9th Cir. 1998). Likewise, excessive force is used “when a deputy sics a canine on a 6 handcuffed arrestee who has fully surrendered and is completely under control.” Mendoza, 27 F.3d at 7 1362. 8 Here, under the circumstances described by Officer Tushnet, the intrusion on Mr. Rodriguez’s 9 Fourth Amendment interests was a serious one. Kubo bit and held onto Mr. Rodriguez’s leg for the 10 amount of time it took Officer Tushnet to leave his position of cover, order Mr. Rodriguez to show his 11 hands, and for Mr. Rodriguez to show his hands. Thus, the duration of the bite and the use of force were 12 considerable. See Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003) (concluding that a dog bite 13 to the arm that lasted 45-60 seconds was a serious intrusion on plaintiff’s Fourth Amendment interests). 14 2. Governmental Interests at Stake 15 Next, this Court considers the governmental interests at stake, mindful of the three factors 16 identified by the Supreme Court in Graham. First, this Court considers the severity of Mr. Rodriguez’s 17 crimes. Graham, 490 U.S. at 396. Mr. Rodriguez was wanted for being in possession of a stolen vehicle 18 and for evading police during a high speed chase. The government has a legitimate interest in 19 apprehending criminal suspects. See United States v. Hensley, 469 U.S. 221, 229 (1985) (referring to “the 20 strong government interest in solving crimes and bringing offenders to justice”). Thus, this factor favors 21 the government. 22 Second, this Court considers whether Mr. Rodriguez posed an immediate threat to the safety of 23 the officers or others, which the Ninth Circuit recognizes as the most important of the three Graham 24 factors. See Mattos, 661 F.3d at 441. From Officer Tushnet’s perspective, Mr. Rodriguez posed an 25 immediate safety threat. Officer Tushnet knew that Mr. Rodriguez had already demonstrated a complete 26 disregard for the safety of the public and the officers by recklessly fleeing from officers at high speeds 27 through a residential area at night. Officer Tushnet was also aware that Mr. Rodriguez had not been 28 searched for weapons. In addition, it was dark and Mr. Rodriguez had ample time to gain a position of 7 1 tactical advantage over the officers. Officer Tushnet also knew that Mr. Rodriguez remained defiant 2 having ignored at least three warnings that a police dog would be released. Thus, the second Graham 3 factor weighs heavily in the government’s favor. 4 Third, this Court considers whether Mr. Rodriguez was actively resisting arrest or attempting to 5 evade arrest by flight. Graham, 490 U.S. at 396. Mr. Rodriguez led officers on a high speed chase 6 through a residential area, abandoned the car, and fled on foot. Although Mr. Rodriguez had paused in 7 a backyard at the time of his arrest, Mr. Rodriguez was still evading arrest by flight. See Miller, 340 F.3d 8 at 965-66 (holding that although the plaintiff in an excessive force case paused in the woods at the time 9 of his arrest, he was still evading arrest by flight). Accordingly, this factor favors the government as well. 10 3. Reasonableness of Force 11 Although all three Graham factors favor the government, this Court must now consider whether 12 the force that was applied was reasonably necessary under the circumstances. Graham, 490 U.S. at 397. 13 Relevant to this inquiry is the fact that the officers attempted less forceful means of apprehension before 14 applying the challenged force. See Miller, 340 F.3d at 966 (recognizing that although the government 15 need not show that it attempted less forceful means of apprehension before applying the challenged force, 16 the inquiry is highly relevant). For instance, officers first pursued the stolen vehicle driven by Mr. 17 Rodriguez; when Mr. Rodriguez fled on foot, officers set up a perimeter to contain him; a police 18 helicopter searched the scene; and at least three announcements were made that a police dog would be 19 released. Each of these less severe measures failed because Mr. Rodriguez failed to surrender. “[U]se 20 of the police dog was well suited to the task of safely arresting [Mr. Rodriguez].” Id. It was dark. The 21 officers were in a residential area. A suspect that previously showed a complete disregard for public 22 safety by leading officers on a high speed chase and who had not been searched for weapons was at large. 23 Under the totality of the circumstances, the government’s strong interests in arresting Mr. Rodriguez 24 outweighed Mr. Rodriguez’s legitimate interest in not being bitten by a dog. Accordingly, use of the 25 police dog was objectively reasonable and Mr. Rodriguez’s Fourth Amendment rights were not violated. 26 See id. at 968 (concluding that officer’s use of a police dog to bite and hold suspect until deputies arrived 27 on the scene less than a minute later was a reasonable seizure that did not violate the suspect’s Fourth 28 Amendment rights); Mendoza, 27 F.3d at 1362-63 (holding that use of police dog to find and secure 8 1 suspect, which resulted in two dog bites, was objectively reasonable). 2 This Court GRANTS Officer Tushnet’s request for summary judgment. 3 B. Qualified Immunity 4 Because this Court finds that Officer Tushnet is entitled to summary judgment with regard to Mr. 5 Rodriguez’s Fourth Amendment claim, this Court declines to address Officer Tushnet’s arguments 6 regarding qualified immunity. 7 V. CONCLUSION AND ORDER 8 For the reasons discussed above, this Court: 9 1. 10 VACATES the March 29, 2012, hearing or oral argument, pursuant to Local Rule 230(g); 11 2. GRANTS Officer Tushnet’s motion for summary judgment; and 12 3. DIRECTS the clerk to enter judgment in favor of defendant Officer Tushnet and 13 against plaintiff Robert Rodriguez, to close this action. 14 IT IS SO ORDERED. 15 Dated: 66h44d 16 March 23, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?