Avila et al v. State of California et al

Filing 92

ORDER signed by District Judge John A. Mendez on 8/23/2017 GRANTING 51 Motion for Summary Judgment in favor of CHP Defendants on Gretel's first, third, and fifth claims. (Washington, S)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 14 MELINDA AVILA; GRETEL LORENZO; ALFREDO LORENZO; and JOSE LORENZO, 15 16 17 18 Plaintiffs, v. No. 1:15-cv-00996-JAM-EPG ORDER GRANTING DEFENDANTS VARNER AND CALIFORNIA HIGHWAY PATROL’S MOTION FOR SUMMARY JUDGMENT AS TO GRETEL LORENZO STATE OF CALIFORNIA; COUNTY OF MADERA; RICHARD GONZALES; PAUL VARNER, and DOES 3 through 100, inclusive, 19 Defendants. 20 21 This Court held a hearing on the summary judgment motion 22 brought by California Highway Patrol (“CHP”) and Officer Varner 23 (“Varner”) (collectively, “CHP Defendants”) on June 20, 2017. 24 ECF No. 78. 25 the parties to further brief whether the Court should grant 26 summary judgment for CHP Defendants on Gretel Lorenzo’s 27 (“Gretel”) first and fifth claims. 28 (“Tr.”), ECF No. 82. At the conclusion of the hearing, the Court asked Tr. 45:18-22, Jun. 20, 2017 CHP Defendants filed their supplemental 1 1 brief, Supplemental Mot. for Summ. J. (“Supp. Mot.”), ECF No. 83, 2 and Gretel opposed, Opposition to Supp. Mot. (“Opp’n”), ECF No. 3 88. 4 Defendants’ motion. For the reasons set forth below, the Court GRANTS CHP 5 6 I. FACTS AND PROCEDURAL BACKGROUND At about 2:00 a.m. on June 2, 2013, security at Chukchansi 7 Gold Casino called the Madera County Sheriff’s Department 8 regarding a disturbance. 9 Undisputed Facts (“UF”) #22, ECF No. 63-7. Pls.’ Resp. to Defs.’ Statement of Varner responded to 10 the scene with another CHP officer and Madera County officers 11 Gonzales and Rich. 12 UF ##23, 24. Gretel and the other plaintiffs were waiting outside the 13 casino when the officers approached them. 14 began speaking to Jose, Gretel’s father. 15 minutes of conversation, Rich arrested Jose. 16 Gonzales arrested Jose’s brother Alfredo and took him to the 17 ground. 18 handcuff Alfredo, Gretel approached them. 19 UF #42. UF #28. UF #28. The officers After a few UF #39. Varner and While Gonzales and Varner were trying to UF #43. A video of the incident, reviewed by this Court multiple 20 times, indisputably shows Gretel reaching out and touching 21 Varner. 22 the video, and you can see Gretel’s hand on Varner’s shoulder.” 23 Tr. 21:12-13. 24 her hand on a police officer who [wa]s trying to arrest another 25 person.” 26 she fell. 27 Gretel. Because it was unclear if Varner contributed to Gretel’s 28 fall, the Court found a triable issue of fact as to whether The Court stated at the hearing: “I can actually stop The Court therefore found Gretel clearly “put[] Tr. 21:23-24. UF #45. Then, Gonzales pushed Gretel away and Varner also reached up and possibly touched 2 1 2 Varner actually touched Gretel. Tr. 22:7-13. Gretel brought five claims against CHP Defendants: 3 (1) violation of California Civil Code § 52.1 (“the Bane Act”); 4 (2) false arrest/imprisonment; (3) intentional infliction of 5 emotional distress (“IIED”); (4) negligent training and 6 supervision; and (5) excessive force under 42 U.S.C. § 1983. 7 Third Amended Complaint at 6-18, ECF No. 22. 8 9 Gretel voluntarily dismissed the fourth claim entirely and the fifth claim as brought against CHP. ECF No. 65. At hearing, 10 the Court granted CHP Defendants’ motion on Gretel’s second claim 11 for false arrest. 12 Gretel’s third claim pending the supplemental briefing on the 13 first and fifth claims. 14 Tr. 30:14-22. The Court reserved judgment on Tr. 46:22-47:4. II. OPINION 15 A. Legal Standard 16 The Bane Act “creates a right of action against any person 17 who interferes by threat, intimidation, or coercion with the 18 exercise or enjoyment by any individual or individuals of rights 19 secured by the Constitution or laws of the United States.” 20 Barragan v. City of Eureka, No. 15-CV-02070-WHO, 2016 WL 21 4549130, *7 (N.D. Cal. Sept. 1, 2016) (quoting Cal. Civ. Code 22 § 52.1(a)) (internal quotation marks omitted). 23 force claim brought under § 1983 can give rise to a Bane Act 24 claim. 25 1374518, at *13 (N.D. Cal. Apr. 15, 2017). 26 excessive force claim under the Bane Act are the same as under 27 § 1983. 28 Thus, Gretel’s Bane Act claim depends on whether she can prove An excessive May v. San Mateo Cty., No. 16-CV-00252-LB, 2017 WL The elements of an Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013). 3 1 her Fourth Amendment excessive force claim. 2 A law enforcement officer violates the Fourth Amendment 3 right against excessive force when he “carrie[s] out an 4 unreasonable seizure through a use of force that was not 5 justified under the relevant circumstances.” 6 Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1547 (2017). 7 police officers may use force that is “‘objectively reasonable’ 8 in light of the facts and circumstances confronting them.” 9 Graham v. Connor, 490 U.S. 386, 397 (1989). 10 Cty. of Los But The Supreme Court has explained: 11 16 The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . 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 splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation. 17 Id. at 396–97 (internal citations and quotation marks omitted). 18 A court must assess reasonableness by balancing “the force which 19 was applied . . . against the need for that force.” 20 Cty. of Riverside, 120 F.3d 965, 976 (9th Cir. 1997). 12 13 14 15 Liston v. 21 B. Analysis 22 CHP Defendants argue Gretel cannot prove her excessive 23 force claim against Varner because any force Varner used against 24 her was objectively reasonable. 25 the Court should let the jury decide whether Varner’s use of 26 force was reasonable. 27 /// 28 /// Supp. Mot. at 2. Opp’n at 5. 4 Gretel argues 1 1. 2 The Force Applied Gretel argues she “was subjected to a violent shove 3 that . . . could have resulted in serious bodily injury.” 4 at 6. 5 Opp’n Reply at 2. Varner argues he merely “brushed away Gretel’s arm.” 6 The Ninth Circuit has found that a “single push” by an 7 officer when a plaintiff “lean[s] over [the officer] during the 8 arrest” of another person is a “minimal intrusion.” 9 City of Costa Mesa, 174 F. App’x 399, 402 (9th Cir. 2006). Jimenez v. 10 Gretel does not cite to any case where a court considered a 11 similar push significant or deadly force. 12 the amount of force, if any, Varner used against Gretel was 13 minimal. 14 15 2. The Court finds that The Need for Force Courts assessing the need for force should consider 16 (1) “the severity of the crime at issue,” (2) “whether the 17 suspect poses an immediate threat to the safety of the officers 18 or others,” and (3) “whether he is actively resisting arrest or 19 attempting to evade arrest by flight.” 20 The most important factor is whether the suspect poses an 21 immediate threat to the safety of the officers or others. 22 v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). 23 Graham, 490 U.S. at 396. CHP Defendants address only the safety factor. Bryan The Court 24 therefore assumes for purposes of this motion that CHP 25 Defendants concede that Gretel’s alleged crimes were not severe 26 and that she was not fleeing or resisting her own arrest. 27 28 As to the safety factor, CHP Defendants argue, “[w]hen Gretel Lorenzo grabbed at Officer Varner’s back, he was in a 5 1 compromised safety position” because his “hands were occupied 2 attempting to control Alfredo Lorenzo[,]” and Gretel “was in a 3 position to grab a weapon from Officer Varner.” 4 Defendants add, “Gretel also posed a risk to the safety of 5 Alfredo Lorenzo by grabbing at the officer who was attempting to 6 safely take Alfredo to the ground.” 7 Id. at 3. CHP Id. Gretel disputes CHP Defendants’ contentions. First, Gretel 8 argues that one officer wrote in his report that both Gonzales 9 and Varner pushed Gretel. Opp’n at 1 (citing Ex. 14 at 3, ECF 10 No. 68-6). 11 shows Varner pushed Gretel. 12 and 5 @ 41 sec.). 13 must decide whether any force Varner used was reasonable, not 14 whether Varner actually used any force. 15 Gretel also states the video taken by bystanders Opp’n at 1 (citing Exh. 9, Videos 4 But this argument is irrelevant. The Court Second, Gretel argues the Court should leave the 16 reasonableness assessment to the jury. Opp’n at 4. She relies 17 heavily on Garlick v. Cty. of Kern, 167 F. Supp. 3d 1117 (E.D. 18 Cal. 2016). 19 opinion in her supplemental opposition brief, Gretel omits a 20 crucial part of the Court’s rationale: the reasonableness issue 21 should be determined by a jury “especially where cases involve 22 an in-custody death, because the witness most likely to 23 contradict [an officer's] story is not available to testify.” 24 Id. at 1145. 25 have testified under oath as to what happened. 26 gave detailed testimony about this incident in her deposition, 27 and she never once indicated Varner pushed her; throughout her 28 deposition she mentions only one officer pushing her. While citing to much of the language in the Garlick No such death occurred here, and the plaintiffs 6 In fact, Gretel See 1 Gretel Depo. at 74-77. 2 was Varner’s use of force that caused her to fall backwards. 3 Simply put, the same concerns present in Garlick do not exist 4 here. 1 5 it can decide as a matter of law whether Varner acted 6 reasonably. Gretel has also never testified that it The Court therefore finds that under these circumstances, 7 Finally, Gretel argues that CHP Defendants’ contention that 8 Gretel was endangering Varner and Alfredo is merely speculative. 9 Opp’n at 6. Gretel quotes from Deorle v. Rutherford, which 10 states that a “simple statement by an officer that he fears for 11 his safety or the safety of others is not enough; there must be 12 objective factors to justify such a concern.” 13 1281 (9th Cir. 2001). 14 not depend solely on a “simple statement” by Varner that he 15 feared for his safety. 16 touching Varner while he was trying to arrest Alfredo. 17 the Court finds that CHP Defendants’ safety argument does not 18 depend solely on Varner’s testimony, and so Deorle does not 19 require this Court to deny summary judgment on this basis. 20 272 F.3d 1272, Yet, CHP Defendants’ safety argument does The video objectively shows Gretel In sum, In considering all the evidence before the Court in the 21 light most favorable to Gretel, the Court finds that Gretel has 22 failed to raise a genuine dispute as to any material fact on the 23 issue of whether Officer Varner was in a compromised safety 24 position when Gretel put her hands on him. 25 Gretel’s action, Varner raised up and brushed away Gretel’s arm. In response to 26 27 28 1 As CHP Defendants also argue, the facts of Garlick are easily distinguishable from the case at bar and the case is not of much help to this Court in deciding the issue before it. 7 1 This action was reasonable. 2 possible threat that Gretel posed to the safety of himself and 3 possibly others (such as Alfredo Lorenzo). 4 clearly establishes that Varner’s action was objectively 5 reasonable. 6 3. He was acting in response to a The video evidence Balancing the Force Applied Against the Need for Force 7 8 9 The Court, having found that Varner’s use of force against Gretel was minimal and Varner properly used force for his own 10 safety, must now balance this important safety interest against 11 the minimal force Varner used (even assuming Gretel was not 12 resisting arrest or accused of a serious crime). In doing so, 13 the Court finds Varner’s use of force reasonable and not 14 excessive. 15 Gretel’s constitutional rights by pushing away her arm when 16 Gretel touched Varner during an arrest. 17 No reasonable jury could find Varner violated Because Gretel’s excessive force claim fails, her Bane Act 18 claim also fails. 19 Varner’s use of force, the Court finds Varner’s actions towards 20 Gretel do not rise to the level of “extreme and outrageous 21 conduct” required for an IIED claim. 2 22 Additionally, based on its findings regarding III. 23 ORDER For the reasons set forth above, the Court GRANTS summary 24 judgment in favor of CHP Defendants on Gretel’s first, third, and 25 2 26 27 28 The Court indicated at hearing that Gretel’s IIED claim was “dependent on the Court’s findings on the first and fifth claims.” Tr. 46:23-25. The Court stated: “If I grant summary judgment on the first and fifth claims, then the third claim would go away as well.” Tr. 47:2-4. Neither party addressed the IIED claim in their supplemental briefs. 8 1 fifth claims. 2 IT IS SO ORDERED. 3 Dated: August 23, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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