Funk v. Town of Paradise et al

Filing 148

ORDER signed by Chief Judge Morrison C. England, Jr. on 06/16/15 ORDERING THAT the 143 Motion for Summary Judgment is GRANTED. Clerk to enter judgment in Defendants' favor. CASE CLOSED (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HAROLD ANTHONY FUNK,

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No. 2:09-CV-01000-MCE-CKD

Plaintiff,
v.

MEMORANDUM AND ORDER

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TOWN OF PARADISE, et al.,

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Defendants.

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Plaintiff Harold Anthony Funk (“Plaintiff”) initiated this action against Defendants

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Town of Paradise, Police Chief Gerald Carrigan and Officers Robert Pickering and

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Timothy Cooper (collectively “Defendants”) alleging causes of action for excessive force,

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supervisory liability, conspiracy to commit civil rights violations and various violations of

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California law. According to Plaintiff, he was detained without probable cause for

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resisting arrest in violation of California Penal Code § 148 and he suffered injuries as a

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result of the officers’ use of excessive force. The Court bifurcated the case so that only

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Plaintiff’s claims under 42 U.S.C. § 1983 as to the individual officers were litigated during

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phase one. After a full trial on those causes of action, the jury returned a defense

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verdict, finding that the officers had probable cause to arrest Plaintiff and that they used

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reasonable force during the course that arrest. ECF Nos. 104-105.1 Defendants now

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Plaintiff subsequently filed a Motion for New Trial (ECF No. 114), which this Court denied via a

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move for summary judgment as to Plaintiff’s remaining claims. Plaintiff filed a statement

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of non-opposition (ECF No. 146), and for the following reasons, Defendants’ Motion

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(ECF No. 143) is GRANTED.2

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STANDARD

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The Federal Rules of Civil Procedure provide for summary judgment when “the

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movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

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477 U.S. 317, 322 (1986). “A party asserting that a fact cannot be or is genuinely

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disputed must support the assertion by: (A) citing to particular parts of materials in the

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record, including depositions, documents, electronically stored information, affidavits or

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declarations, stipulations (including those made for purposes of the motion only),

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admissions, interrogatory answers, or other materials; or (B) showing that the materials

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cited do not establish the absence or presence of a genuine dispute, or that an adverse

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party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(a)(1).

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One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or

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defenses. Celotex, 477 U.S. at 323-24.

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Rule 56 also allows a court to grant summary judgment on part of a claim or

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defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may

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move for summary judgment, identifying each claim or defense—or the part of each

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claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v.

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Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a

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motion for partial summary judgment is the same as that which applies to a motion for

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written memorandum and order (ECF No. 125). Plaintiff then appealed both the jury’s verdict and this
Court’s order denying the request for a new trial, but because no final judgment has yet been entered in
this case, that appeal was dismissed for lack of jurisdiction. ECF Nos. 126, 136.
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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local R. 230(g).

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summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep't of Toxic

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Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir.1998) (applying summary

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judgment standard to motion for summary adjudication).

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In a summary judgment motion, “the moving party always bears the initial

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responsibility of informing the district court of the basis for its motion and identifying” the

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portions in the record “which it believes demonstrate the absence of a genuine issue of

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material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial

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responsibility, the burden then shifts to the opposing party to establish that a genuine

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issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S.

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253, 288–89 (1968).

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In attempting to establish the existence or non-existence of a genuine factual

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dispute, the party must support its assertion by “citing to particular parts of materials in

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the record, including depositions, documents, electronically stored information, affidavit

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or declarations . . . or other materials; or showing that the materials cited do not establish

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the absence or presence of a genuine dispute, or that an adverse party cannot produce

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admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The opposing party

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must demonstrate that the fact in contention is material, i.e., a fact that might affect the

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outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper

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Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also demonstrate

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that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In other

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words, the judge needs to answer the preliminary question before the evidence is left to

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the jury of “not whether there is literally no evidence, but whether there is any upon

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which a jury could properly proceed to find a verdict for the party producing it, upon

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whom the onus of proof is imposed.” Id. at 251 (quoting Improvement Co. v. Munson,

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14 Wall. 442, 81 U.S. 442, 448, 20 L. Ed. 867 (1871)). As the Supreme Court explained,
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“[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do

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more than simply show that there is some metaphysical doubt as to the material facts.”

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Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as a whole could not

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lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

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trial.’” Id.

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In resolving a summary judgment motion, the evidence of the opposing party is to

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be believed, and all reasonable inferences that may be drawn from the facts placed

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before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at

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255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's

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obligation to produce a factual predicate from which the inference may be drawn.

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Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff'd,

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810 F.2d 898 (9th Cir.1987).

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ANALYSIS

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The jury trial disposed of Plaintiff’s first cause of action for excessive force under

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42 U.S.C. § 1983 against both Officer Pickering and Officer Cooper. However, several

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causes of action remain pending: (1) a § 1983 claim for failure to instruct, supervise,

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control, and discipline against the Town of Paradise and Chief Carrigan; (2) a claim for

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“supervisorial liability” under § 1983 against Chief Carrigan; (3) a claim for conspiracy to

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violate Plaintiff’s civil rights under § 1983 and 42 U.S.C. § 1986 against all Defendants;

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and (4) various state law claims against the individual officers, including battery, assault,

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battery based on unreasonable force in effecting an arrest, battery based on an unlawful

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arrest, intentional and negligent infliction of emotional distress, and false imprisonment.

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In the motion for summary judgment now before the court, Defendants contend that

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because the jury determined that the officers had probable cause to arrest Defendant

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and did not use unreasonable force in effectuating that arrest, every remaining claim

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must fail. This Court agrees.
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Plaintiff’s § 1983 claims against the Town of Paradise and Chief Carrigan are

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derivative of the § 1983 claims directed at the individual officers, and, absent a

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constitutional violation, they cannot stand. See Nurre v. Whitehead, 580 F.3d 1087,

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1092 (9th Cir. 2009) (“All § 1983 claims must be premised on a constitutional violation.”).

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Since the jury determined neither officer violated Plaintiff’s constitutional rights, there is

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no constitutional violation to serve as a basis for the remaining claims under Monell v.

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Dep’t of Social Services, 436 U.S. 658 (1978), or for “supervisorial liability.” See Nurre

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at 1092 n.3 (noting that absent a constitutional violation, no municipal or supervisory

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liability may attach); Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991)

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(noting that supervisory liability “hinges upon . . . participation in the deprivation of

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constitutional rights”). Accordingly, Defendants are entitled to summary judgment on

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each of these causes of action.

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Plaintiff’s conspiracy cause of action likewise fails. To the extent Plaintiff pursues

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that claim under § 1983, it, like the claims above, fails for lack of a constitutional

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violation. See Dixon v. City of Lawton, 898 F.2d 1443, 1447-49 (10th Cir. 1990) (“[T]o

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recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only a

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conspiracy, but also an actual deprivation of rights; pleading and proof of one without the

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other will be insufficient.”) (citing, among other cases, Dooley v. Reiss, 736 F.2d 1392,

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1395 (9th Cir. 1984)). Alternatively, to the extent Plaintiff’s claim arises under § 1986, it

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fails because Plaintiff cannot show any racially discriminatory animus. See Trerice v.

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Pederson, 769 F.2d 1398, 1402-03 (9th Cir. 1985) (claim brought under § 1986 requires

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a violation of 42 U.S.C. § 1985(3), which in turn requires a showing of racial or other

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class-based animus).

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Plaintiff’s state law claims fail as well because they too depend on a finding that

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the officers acted without probable cause or that they used unreasonable force. First, by

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definition, a lawful arrest (i.e., based on probable cause and executed with reasonable

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force) cannot provide a basis for a false arrest or false imprisonment claim. See Cal.

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Pen. Code § 847(b)(1) (“There shall be no civil liability on the part of, and no cause of
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action shall arise against, any peace officer . . . acting within the scope of his or her

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authority, for false arrest or false imprisonment arising out of any arrest” if “[t]he arrest

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was lawful, or the peace officer, at the time of the arrest, had reasonable cause to

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believe the arrest was lawful.”). Second, Plaintiff’s assault and battery claims cannot

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stand given the jury’s finding that Officers Pickering and Cooper used reasonable force.

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Cal. Pen. Code § 835a (“Any peace officer who has reasonable cause to believe that the

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person to be arrested has committed a public offense may use reasonable force to effect

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the arrest, to prevent escape or to overcome resistance.”); see also Edson v. City of

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Anaheim, 63 Cal. App. 4th 1269, 1272-73 (1998) (“[A] prima facie battery is not

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established unless and until plaintiff proves unreasonable force was used.”); Ciampi v.

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City of Palo Alto, 790 F. Supp. 2d 1077, 1105-06 (N.D. Cal. 2011) (applying the same

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principles to an assault claim). Finally, Plaintiff’s emotional distress claims must fail as

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well because those causes of action also require a finding that either the arrest or the

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use of force was outrageous or wrongful. See Hughes v. Pair, 46 Cal. 4th 1035, 1050

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(2009) (extreme and outrageous conduct required for intentional infliction of emotional

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distress claim); Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (negligent

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infliction of emotional distress requires showing of wrongful conduct). Because the

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arrest was supported by probable cause and the use of force was reasonable, the

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officer’s conduct cannot be wrongful or outrageous. See Cal. Pen. Code §§ 835a,

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847(b). As such, Defendants are entitled to judgment on Plaintiff’s state causes of

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action as well.

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CONCLUSION

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For the reasons just stated, and based on Plaintiff’s express statement of non-

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opposition, Defendants’ Motion for Summary Judgment (ECF No. 143) is GRANTED.

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This case having now been adjudicated in its entirety, the Clerk of Court is directed to

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enter judgment in Defendants’ favor and close the file.

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IT IS SO ORDERED.
Dated: June 16, 2015

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