Newman et al v. San Joaquin Delta Community College District et al

Filing 191

MEMORANDUM and ORDER signed by Judge William B. Shubb on 8/31/2011 ORDERING that Delta College and Ruley's 124 motion for summary judgment or partial summary judgment be, and the same hereby is, DENIED. It is further ordered that Wood's 117 motion for summary judgment or adjudication be, and the same hereby is, DENIED. (Duong, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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SHIRLEY NEWMAN and ANTHONY
BUTLER,

NO. CIV. 2:09-3441 WBS KJN

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Plaintiffs,

MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT,
SUMMARY ADJUDICATION, OR
PARTIAL SUMMARY JUDGMENT AND
MOTION IN LIMINE

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v.
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SAN JOAQUIN DELTA COMMUNITY
COLLEGE DISTRICT; DANIELE
RULEY; JAMES WOOD; and DOES 1
through 100, inclusive,
Defendants.
___________________________/

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----oo0oo---Plaintiffs Shirley Newman and Anthony Butler brought

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this action against defendants San Joaquin Delta Community

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College District (“Delta College”), Daniele Ruley, and James

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Wood, asserting claims for excessive force, unreasonable seizure,

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and disability discrimination under federal and state law.

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Presently before the court are Delta College and Ruley’s joint

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motion for summary judgment or partial summary judgment pursuant

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to Federal Rule of Civil Procedure 56, Wood’s motion for summary
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judgment or summary adjudication pursuant to Rule 56, and

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plaintiffs’ motion in limine.

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I.

Factual and Procedural Background

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On March 13, 2008, plaintiffs, who have lived together

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since 2000, were attending classes in separate classrooms at

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Delta College when Newman began to suffer from anxiety.

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a 43-year-old woman with a history of mental illness, sought out

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Butler to comfort her.1

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called campus police when Newman stated at one point that she was

Newman,

An instructor in Butler’s classroom

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going to hurt someone.

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instructor deposition transcript), at 11-22, Ex. U (police

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dispatcher deposition transcript), at 21-23.)

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told the police officers that the wife was upset and crying and

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on the “verge of being violent towards her husband.”

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Decl. Ex. 20, at Ex. 2.)

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(See Meleyco Decl. Ex. J (classroom

The dispatcher

(Medina

According to plaintiffs, they were walking quietly and

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calmly to the classroom door as they held each other when the

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individual defendants arrived.

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deposition transcripts), at Feb. 27, 2009, dep. tr. 91-92, Ex. J,

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at 23-24.)

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Wood’s orders to come with him, but was slammed to the ground and

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dragged into the hallway by Woods and Delta College police

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officer Ruley.

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the classroom door and slammed her against the hallway wall three

(See Meleyco Decl. Ex. E (Butler

Butler complied with Delta College police officer

Newman states that Ruley then pulled her through

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Before this incident, San Joaquin In Home Support
Services had granted Newman twenty-four-hour “protective
supervision” by Butler. Butler states that he enrolled in
classes to be near Newman when Delta College would not allow him
to sit inside or outside Newman’s classrooms. (Butler Decl. in
Opp’n to Delta College & Ruley’s Mot. (“Butler Decl. I”) ¶ 4.)
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times, while using racially derogatory language.

Plaintiffs were

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released after five to ten minutes.

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2009, dep. tr. 94-104, Apr. 5, 2011, dep. tr. 196-210, 223, 250,

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Aug. 12, 2009, dep. tr. 94-101; id. Ex. R (Newman deposition

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transcripts), at Apr. 12, 2009, dep. tr. 191-200, 244-57, Apr.

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20, 2009, dep. tr. 384-386; Butler Decl. in Opp’n to Delta

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College & Ruley’s Mot. (“Butler Decl. I”) ¶¶ 16, 23-25, Exs. E-F

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(Online Citizen Complaint Forms); Newman Decl. in Opp’n to Delta

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College & Ruley’s Mot. (“Newman Decl. I”) ¶¶ 4-8, 19, 32-38, Exs.

(See id. Ex. E, at Feb. 27,

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E-F (Online Citizen Complaint Forms); Butler Decl. in Opp’n to

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Wood’s Mot. (“Butler Decl. II”) ¶¶ 6-10; Newman Decl. in Opp’n to

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Wood’s Mot. (“Newman Decl. II”) ¶¶ 6-17; see also Meleyco Decl.

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Ex. BB (deposition transcript of witness to incident), at 11-12;

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id. Ex. B (deposition transcript of witness to incident), at

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14-33, 52-55.)

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According to defendants, plaintiffs were disturbing the

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other students and Butler failed to comply with Wood’s orders and

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appeared to be dragging Newman to the classroom door as she

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pushed away from him.

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to get to Butler while Wood was questioning him in the hallway.

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Newman, screaming and crying, then tried

On March 14, 2008, after meeting with Newman, a vice

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president at Delta College temporarily suspended her for student

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misconduct.

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documentation that supported her claim that she was receiving

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mental help.

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submit sufficient documentation and was notified on March 17,

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2008, that she was suspended through the summer 2008 semester.

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Following numerous appeals, the president of Delta College

The vice president required Newman to submit

(See Michel Decl. ¶¶ 4-5, Ex. A-B.)

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Newman did not

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rescinded the suspension later that summer.

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Delta College’s Disabled Students Program and Services

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(“DSPS”) office now permits Newman to have Butler attend classes

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with her.

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with extended test-taking time and allowed her to use the

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elevators.

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The DSPS office had previously accommodated Newman

Defendants removed the case to this court on December

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11, 2009.

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excessive force and unreasonable seizure as well as state law

Plaintiffs assert a 42 U.S.C. § 1983 claim for

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claims for battery, false imprisonment, intentional infliction of

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emotional distress, and negligent infliction of emotional

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distress against all defendants.

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violations of the Americans with Disabilities Act (“ADA”), 42

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U.S.C. §§ 12101-12183, section 504 of the Rehabilitation Act, 29

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U.S.C. § 794, California’s Unruh Civil Rights Act (“Unruh Act”),

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see Cal. Civil Code § 51, California’s Disabled Persons Act

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(“DPA”), see id. § 54.1, and California Government Code section

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11135 against Delta College.

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II.

Newman also asserts claims for

See Cal. Gov’t Code § 11135.

Discussion
Summary judgment is proper “if the movant shows that

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

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

Fed. R. Civ.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the

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non-moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

Id. at

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

To carry this burden,

Matsushita

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”2

Id. at

“Credibility determinations, the weighing of the evidence,

Id.

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Plaintiffs request judicial notice, see Fed. R. Evid.
201, of eleven documents. (Pls.’ Req. for Judicial Notice Exs.
A-K.) The court declines to take judicial notice of these
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A.

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Evidentiary Objections
Pursuant to Federal Rule of Civil Procedure 56(c)(2),

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“[a] party may object that the material cited to support or

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dispute a fact cannot be presented in a form that would be

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admissible in evidence.”

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added).

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Fed. R. Civ. P. 56(c)(2) (emphasis

The parties have filed numerous evidentiary objections,

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many of which are particularly improper on summary judgment.

See

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Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20

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(E.D. Cal. 2006) (Shubb, J.).

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ground that the evidence is irrelevant, speculative,

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argumentative, or constitutes an improper legal conclusion are

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all duplicative of the summary judgment standard itself.

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these objections are overruled as moot.

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Objections to evidence on the

All of

Delta College and Ruley object to many of the exhibits

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attached to plaintiffs’ counsel’s declaration: (1) deposition

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transcripts and exhibits, (2) expert reports and CVs, and (3)

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documents produced by Delta College, such as (a) e-mails among

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Delta College police officers after the incident, (b) the

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internal affairs investigation report and related documents, and

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(c) documents pertaining to the tasering of a mentally ill

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documents because judicial notice is not necessary to resolve the
motions.
Wood requests judicial notice of four documents, only
three of which he attached to the request. (Wood’s Req. for
Judicial Notice Exs. 1, 3-4.) The court declines to judicially
notice the decision from the California Department of Health
Services because it is not necessary to the resolution of the
motions. The court denies the request to judicially notice the
publications from the California Commission on Peace Officer
Standards and Training (“POST”) because they are incomplete
copies of the publications.
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student.

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Decl.)

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because plaintiffs may be able to present this evidence at trial

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in a form that would be admissible.

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56(c)(2).

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objections to statements in plaintiffs’ counsel’s declaration.

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(See Delta College & Ruley’s Objections to Meleyco

The court overrules the objections to these exhibits

See Fed. R. Civ. P.

The court also overrules Delta College and Ruley’s

The court overrules Delta College and Ruley’s

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objections contained within their response to plaintiffs’

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statement of undisputed facts.

(See Delta College & Ruley’s

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Objections to Pls.’ Evidence in Supp. of their Opp’n to Defs.’

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Mot. for Summ. J. or Partial Summ. J.)
The court overrules plaintiffs’ objections to Wood’s

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declaration, (see Pls.’ Opp’n to Wood Decl. Submitted in Supp. of

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Wood’s Mot. for Summ. J./Adjudication), and plaintiffs’

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objections contained within their response to Wood’s statement of

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undisputed facts, (see Pls.’ Statement of Disputed & Undisputed

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Material Facts in Opp’n to Wood’s Mot. for Summ. J. or Partial

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Summ. J.), except for 11, which objects on the ground that the

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diagnosis of Newman in the cited evidence was not made by a

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qualified expert.

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overrules plaintiffs’ objections contained in their response to

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Delta College and Ruley’s statement of undisputed facts, (Pls.’

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Statement of Disputed & Undisputed Material Facts in Opp’n to

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Delta College & Ruley’s Mot. for Summ. J. or Partial Summ. J.),

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except for 25.

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of the classroom instructor’s call to police.

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dispute its authenticity.

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B.

The court sustains this objection.

The court

The court sustains objection 25 to the transcript

Plaintiffs’ § 1983 Claim
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The parties

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In relevant part, § 1983 provides:

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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .,
subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action
at law, suit in equity or other proper proceeding for
redress . . . .

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42 U.S.C. § 1983.

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substantive rights, it provides a cause of action against any

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person who, under color of state law, deprives an individual of

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federal constitutional rights or limited federal statutory

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rights.

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While § 1983 is not itself a source of

(1989).

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42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 393–94

1.

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Individual Defendants
a.

Excessive Force

Under the Fourth Amendment, police may use only such

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force during an arrest as is objectively reasonable under the

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circumstances, as judged by a reasonable officer at the scene.

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Graham, 490 U.S. at 396-97.

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“balanc[ing] the amount of force applied against the need for

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that force.”

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2010) (quoting Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.

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2003)) (internal quotation marks omitted).

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should be granted sparingly on excessive force claims.

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Gregory v. Cnty. of Maui, 523 F.3d 1103, 1106 (9th Cir. 2008).

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Excessive force claims require

Bryan v. MacPherson, 630 F.3d 805, 823-24 (9th Cir.

Summary judgment
See

In considering the need for the force, the court

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considers three non-exclusive factors: “the severity of the crime

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at issue, whether the suspect poses an immediate threat to the

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safety of the officers or others, and whether he is actively

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resisting arrest or attempting to evade arrest by flight.”

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Bryan, 630 F.3d at 826 (quoting Graham, 490 U.S. at 396)

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(internal quotation marks omitted).

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most important factor.

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The safety factor is the

Id.

Here, on March, 13, 2008, when Newman began suffering

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from anxiety, she sought out Butler, who was in a classroom down

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the hall.

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instructor then brought them into a side office.

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Newman rummaged through the items on the desk and stated that she

Butler attempted to comfort Newman.

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was going to hurt someone.

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The classroom
In the office,

Delta College police.

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The classroom instructor then called

Wood and Ruley received a call about a husband and wife

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disturbing the peace.

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crying and on the “verge of being violent towards her husband.”

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(Medina Decl. Ex. 20, at Ex. 2.)

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The dispatcher said the wife was upset and

According to plaintiffs, plaintiffs then walked calmly

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and quietly through the classroom as other students were working,

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stopping briefly to grab Butler’s backpack.

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Newman in a “hugging position”; Newman was crying quietly and

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clinging to Butler’s shirt.

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Butler was holding

Before plaintiffs were able to exit the classroom, the

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individual defendants arrived on the scene.

Newman then got

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behind Butler, still in physical contact with him.

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requested some space from the individual defendants.

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ordered Butler to come with him.

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wife is very, very ill.

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Ex. E, at Feb. 27, 2009, dep. tr. 94:19-20), and then took a step

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toward Wood.

Butler
Wood

Butler stated, “Okay.

But my

We have to kind of go slow,” (Meleyco

Wood then repeated his order in a more commanding
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tone and grabbed Butler’s arm.

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E, at Apr. 5, 2011, dep. tr. 205:19), Butler to the ground with

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the assistance of Ruley, who pulled Butler’s shirt over his head.

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Ruley also pushed Newman away from Butler as Newman tried to hold

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on to him.

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was lying face-down, approximately seven feet through the

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classroom door and down the hallway, at which point Wood stood

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Butler upright.

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Wood then “[s]lammed,” (id. Ex.

The individual defendants then dragged Butler, who

Ruley then returned to the classroom to find Newman,

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who had remained in the same spot.

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wrist and forcefully pulled her through the classroom door,

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allegedly injuring Newman’s shoulder.

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pull Newman down the hallway, in the opposite direction of Wood

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and Butler.

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Newman against the hallway wall three times, allegedly causing

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injury to her lower back that later required surgery.3

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told Newman multiple times to “[s]hut your black ass up,” (id.

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Ex. R, Apr. 12, 2011, dep. tr. 196:17-18), and called her a

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“[b]itch.”

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attempted to get away from or resist Ruley.

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Ruley grabbed Newman’s arm or

Ruley then continued to

Grabbing Newman at the shoulders, Ruley slammed

(Id. Ex. B, at 23:24.)

Ruley

Newman claims that she never

Butler explained to Wood that his wife was mentally ill

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and what had happened.

A professor and a student who knew Newman

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attempted to explain Newman’s circumstances to Ruley.

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Meleyco Decl. Exs. O, B.)

(See

Plaintiffs were detained for five to

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Following the surgery, Newman has had difficulty
walking and generally uses a wheelchair. She also has had
difficulty controlling her bowel and bladder functions and has
had numbness in her genital area.
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ten minutes before being released.4

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Under plaintiffs’ version of the facts, the government

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interest in the use of force was minimal.

See Bryan, 630 F.3d at

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826.

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of failing to comply with an order, resisting arrest, disturbing

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the peace, or battery.

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offense is not to be taken lightly, it militates against finding

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the force used to effect an arrest reasonable where the suspect

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was also nonviolent and posed no threat to the safety of the

The only possibly applicable crimes were the misdemeanors

“While ‘the commission of a misdemeanor

Id. at 828-29 (quoting Headwaters Forest

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officers or others.’”

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Def. v. Cnty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000),

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vacated and remanded on other grounds sub nom. Cnty. of Humboldt

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v. Headwaters Forest Def., 534 U.S. 801 (2001)).

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evidence suggests that they did not pose a threat to the officers

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and did not resist or attempt to flee before or after the

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individual defendants began to use force.

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individual defendants knew that Newman was “acting out” from a

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mental illness, the Ninth Circuit has indicated that less

Plaintiffs’

Moreover, if the

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Defendants’ version of the events differ. It appeared
that Newman was pushing away from Butler as Butler dragged her
toward the exit. She also was screaming and crying when she went
behind Butler when the officers arrived. When Wood was
questioning Butler in the hallway, Newman was trying to get to
Butler.
The parties’ facts overlap in some respects. It
appears undisputed that Butler was still holding Newman when Wood
first pulled his arm. It also appears undisputed that after
Ruley pulled Newman into the hallway, Newman was crying and
screaming for Butler.
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intrusive means may be more appropriate.5

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(discussing use of intermediate force).

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See id. at 829

While the force used was not deadly or intermediate, it

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involved slamming Butler to the ground and dragging him and

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pulling Newman and slamming her against the wall three times.

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Under plaintiffs’ version of the events, there is a genuine

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dispute regarding the reasonableness of the force under the

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balancing test set forth in Graham.

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Section 1983 requires “personal participation.”

Jones

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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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not touch Newman, Wood initiated the use of force against Butler

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and a jury could reasonably infer that he participated in the

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subsequent use of force against Newman.

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will deny the individual defendants’ motions for summary judgment

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on the § 1983 claim for excessive force.

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b.

While Wood did

Accordingly, the court

Unreasonable Seizure

An investigatory stop under Terry v. Ohio, 392 U.S. 1

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(1968), only requires reasonable suspicion; an arrest requires

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probable cause.

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(9th Cir. 1996).

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See Washington v. Lambert, 98 F.3d 1181, 1885-86

To determine whether a seizure was a Terry stop or an

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arrest, the “general consideration” is that a Terry stop is brief

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and of a minimally intrusive nature.

United States v.

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The individual defendants may have known that Newman
was mentally ill from how Newman was acting. Moreover, Newman
was wearing a “medic-alert” bracelet and Butler informed the
individual defendants that his wife was ill. Plaintiffs have
also presented evidence suggesting that Ruley may have learned
about Newman’s mental illness before March 13, 2008, when she
responded to a call involving Newman.

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Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009).

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general consideration, the courts usually use two inquiries to

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determine whether a seizure was a Terry stop or arrest.

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“First, it is well-established that intrusive measures may

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convert a stop into an arrest if the measures would cause a

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reasonable person to feel that he or she will not be free to

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leave after brief questioning--i.e., that indefinite custodial

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detention is inevitable.”

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of a Terry stop is to allow the officer to pursue his

Id.

Beyond this

Id.

“Second, because ‘[t]he purpose

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investigation without fear of violence,’ ‘we allow intrusive and

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aggressive police conduct without deeming it an arrest . . . when

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it is a reasonable response to legitimate safety concerns on the

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part of the investigating officers.’”

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v. Taylor, 716 F.2d 701, 708 (9th Cir. 1983), and United States

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v. Miles, 247 F.3d 1009, 1012-13 (9th Cir. 2001)) (alterations in

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original) (citation omitted).

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Id. (quoting United States

Here, a trier of fact could find that the Terry stop

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transformed into an arrest.

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plaintiffs, nothing had occurred that would make the officers

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fear for their safety, justifying aggressive conduct.

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Guzman-Padilla, 573 F.3d at 883; see, e.g., United States v.

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Ricardo D., 912 F.2d 337, 340 (9th Cir. 1990).

As the facts are shown by

See

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“Probable cause to arrest exists when officers have

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knowledge or reasonably trustworthy information sufficient to

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lead a person of reasonable caution to believe that an offense

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has been or is being committed by the person being arrested.”

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United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

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Under plaintiffs’ version of the events, the only fact
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supporting probable cause would have been the information the

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individual defendants received from the student dispatcher.

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However, once they arrived on the scene, the individual

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defendants would have seen that plaintiffs were calmly and

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quietly walking toward the classroom exit.

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plaintiffs, Butler complied with Wood’s orders.

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genuine dispute with respect to whether probable cause existed to

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arrest either plaintiff for any crime.

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will deny the individual defendants’ motions for summary judgment

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There is a

Accordingly, the court

on the unreasonable seizure claim.

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According to

c.

Qualified Immunity

A court may not determine qualified immunity at the

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summary judgment stage when there is a factual dispute as to “the

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facts and circumstances within an officer’s knowledge” or “what

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the officer and claimant did or failed to do.”

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Bagley, 988 F.2d 868, 873 (9th Cir. 1993); see Wilkins v. City of

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Oakland, 350 F.3d 949, 956 (9th Cir. 2003); see, e.g., Castillo

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v. City of Oakland, No. C 09-4679, 2010 WL 4316176, at *3 (N.D.

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Cal. Oct. 26, 2010);

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2005 WL 350961, * 7 (N.D. Cal. Feb. 14, 2005).

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multiple factual disputes regarding what the individual

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defendants and plaintiffs did or failed to do and what the

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individual defendants knew, thus precluding the court from

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determining the issue of qualified immunity.

Up!/Portland v.

Begzad v. City of Hayward, No. C03-2163,
Here, there are

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2.

Monell Claim

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“In a Monell claim, there are three ways to show a

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policy or custom of a [public entity]: (1) by showing ‘a

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longstanding practice or custom which constitutes the ‘standard
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operating procedure’ of the local government entity’; (2) ‘by

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showing that the decision-making official was, as a matter of

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state law, a final policymaking authority whose edicts or acts

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may fairly be said to represent official policy in the area of

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decision’; or (3) ‘by showing that an official with final

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policymaking authority either delegated that authority to, or

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ratified the decision of, a subordinate.’”

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Cnty. of San Francisco, 484 F.3d 1142, 1155 (9th Cir. 2007).

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A policy is a deliberate choice made by the entity and can be one

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of action or inaction.

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Rosenbaum v. City &

F.3d 1178, 1185 (9th Cir. 2006).

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See Long v. Cnty. of Los Angeles, 442

While not exactly clear from their opposition,

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plaintiffs appear to base their Monell claim on Delta College’s

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police policy or custom regarding handling mentally ill people,

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including the use of force.

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failure-to-train theory under City of Canton v. Harris, 489 U.S.

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378 (1989), and ratification.

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Plaintiffs appear to only rely on a

“To impose liability . . . under Canton, a plaintiff

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must show: (1) that [defendant’s] employee violated [the

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plaintiff]’s rights; (2) that the [defendant] has customs or

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policies that amount to deliberate indifference (as that phrase

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is defined by Canton); and (3) that these policies were the

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moving force behind the employee’s violation of [the plaintiff]’s

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constitutional rights, in the sense that the [the defendant]

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could have prevented the violation with an appropriate policy.”

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Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1194 (9th Cir.

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2002).

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The deliberate indifference standard is met when “the
15

1

need for more or different training is so obvious, and the

2

inadequacy so likely to result in the violation of constitutional

3

rights, that the policymakers of the [entity] can reasonably be

4

said to have been deliberately indifferent to the need.”

5

489 U.S. at 390 (emphases added).

6

in proving a failure-to-train claim without showing a pattern of

7

constitutional violations where ‘a violation of federal rights

8

may be a highly predictable consequence of a failure to equip law

9

enforcement officers with specific tools to handle recurring

Canton,

“A plaintiff [] might succeed

Long, 442 F.3d at 1186 (quoting Bd. of Cnty.

10

situations.’”

11

Comm’rs v. Brown, 520 U.S. 397, 409 (1997)).

12

Here, one of plaintiffs’ police experts, Joseph

13

McNamara, makes the general observation about how frequently

14

police officers encounter mentally ill people and opines that

15

police officers should be trained on how to handle them.

16

(Meleyco Decl. Ex. UU (McNamara expert report).

17

to the fact that the Marc Bromme, who was chief of police at the

18

time of the incident, acknowledged that the approach used to deal

19

with mentally healthy people may not be effective with mentally

20

ill people.

(Id. Ex. D (Bromme deposition transcript), at

21

142:12-18.)

Plaintiffs’ expert McNamara states, for example,

22

that touching a mentally ill person may cause the person to

23

erupt, while having the opposite effect on a mentally healthy

24

person.

Plaintiffs point

(Id. Ex. UU.)

25

Plaintiffs point out that Delta College did not require

26

continuing education training of police officers or have a policy

27

in its police manual specifically addressing mentally ill people

28

before this incident and still does not.
16

(Id. Exs. D (Bromme

1

deposition transcript), at 47:13-20, DD (Zwickey deposition

2

transcript), at 116:2-9.)

3

Officer Standards and Training requires twenty-hours of

4

continuing education training, with some of these hours

5

discretionary on what topics a police department may cover.

6

Ex. P (McNamara deposition transcript), at July 18, 2011, dep.

7

tr. 159:17-160:10.

8

required twenty-four hours of continuing education be devoted to

9

handling mentally ill people.

10

The California Commission on Peace

(Id.

McNamara recommends forty hours beyond the

(Id.)

In support of their failure-to-train theory, plaintiffs

11

also point to four categories of post-incident evidence.

12

Henry v. Cnty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997),

13

amended on denial of rehearing, 132 F.3d 512 (9th Cir. 1998)

14

(“[P]ost-event evidence is not only admissible for purposes of

15

proving the existence of a municipal defendant’s policy or

16

custom, but is highly probative with respect to that inquiry.”).

17

First, neither the police chief at the time nor the next police

18

chief took corrective action.

19

specifically, an e-mail from the chief of police told his

20

officers that Newman had a mental illness, but did not instruct

21

them to handle her differently from mentally healthy people.

22

(Meleyco Decl. Ex. GG (e-mails).)

23

among Delta College officials, including police officers,

24

suggests that they pre-judged what had occurred.

25

See

With respect to Newman

Second, a series of e-mails

(Id.)

Third, the internal affairs investigation, conducted by

26

a police officer who may have pre-judged the incident,

27

“exonerated” the individual defendants.

28

affairs report).)

(Id. Ex. JJ (internal

The chief of police reviewed the report and
17

1

agreed with it in letters to plaintiffs. (See Butler Decl. II

2

Exs. G-H.

3

incident, Delta College police tasered a mentally ill person.

4

(Meleyco Decl. Ex. II.)

5

Fourth, in April of 2011, three years after the

In response to the failure-to-train theory, Delta

6

College argues that plaintiffs have not presented evidence that

7

contact with mentally ill people was a recurring situation.

8

Delta College police officers, including the individual

9

defendants, received all legislatively-mandated training, such as
(See Ruley Decl. ¶¶ 2-12; Wood Decl.

10

basic and field training.

11

in Supp. of Delta College & Ruley’s Mot. ¶¶ 2-9; Di Piero Decl.

12

¶¶ 2-10; Greenwood Decl. ¶¶ 2-10; Vasquez Decl. ¶¶ 2-8.)

13

and field training includes training on how to handle mentally

14

ill people.

15

Basic

Delta College argues that plaintiffs do not have

16

sufficient evidence of deliberate indifference, noting that

17

plaintiffs do not cite past constitutional violations.

18

The court finds that plaintiffs’ evidence to prove its

19

failure-to-train theory is relatively weak and relies on general

20

observations about the frequency with which police officers

21

encounter mentally ill people.

22

argued that the basic and field training with respect to mentally

23

ill people is insufficient as a matter of content; plaintiffs

24

simply argue for more training and a policy in the manual.

25

Additionally, their post-incident evidence is far from as

26

probative as the evidence was in Henry.

27
28

Moreover, plaintiffs have not

Nonetheless, drawing all inferences in plaintiffs’
favor, the court finds that the failure to have any continuing
18

1

education training on handling mentally ill people and the

2

failure to address the issue at all in the police manual creates

3

at least triable issues with respect to whether Delta College’s

4

failure to train amounted to deliberate indifference and was the

5

“moving force” behind the constitutional violations.

6

v. City of Merced, No. 1:09–cv–00511, 2011 WL 2118517, at *15

7

(E.D. Cal. May 24, 2011) (Wanger, J.).

8

beyond presenting evidence of the failure to train one officer,

9

which is insufficient standing alone.

Cf. Abston

Plaintiffs have gone

See Blankenhorn v. City of

10

Orange, 485 F.3d 463, 484 (9th Cir. 2007).

11

court will deny Delta College’s motion for summary judgment on

12

the Monell claim.6

13

C.

14

Accordingly, the

Plaintiffs’ Battery Claim
“Claims that police officers used excessive force in

15

the course of an arrest, investigatory stop or other ‘seizure’ of

16

a free citizen are analyzed under the reasonableness standard of

17

the Fourth Amendment to the United States Constitution.”

18

v. City of Union City, 120 Cal. App. 4th 1077, 1102 (1st Dist.

19

2009); see also Austin B. v. Escondido Union Sch. Dist., 149 Cal.

20

App. 4th 860, 879 (2007) (discussing joint tortfeasor liability).

21

Accordingly, because the court will deny defendants’ motions for

22

summary judgment on the excessive force claim, the court will

23

deny defendants’ motions with respect to this claim.7

Munoz

24
6

25
26
27
28

Because plaintiffs have a viable Monell claim under the
failure-to-train theory, the court declines to decide whether
plaintiffs have grounds for Monell liability under ratification.
7

By statute, a public entity is vicariously liable for
injuries caused by their employees within the scope of
employment, unless the employee is immune from liability. See
Cal. Gov’t Code § 815.2. Accordingly, Delta College will be
19

1

D.

2

Plaintiffs’ False Imprisonment Claim
“The elements of a tortious claim of false imprisonment

3

are: (1) the nonconsensual, intentional confinement of a person,

4

(2) without lawful privilege, and (3) for an appreciable period

5

of time, however brief.”

6

App. 4th 485, 496 (1st Dist. 2000); see also Harden v. S.F. Bay

7

Area Rapid Transit Dist., 215 Cal. App. 3d 7, 15 (1st Dist. 1989)

8

(discussing joint tortfeasor liability).

9

Penal Code § 847(b)(1), a police officer shall not be held

Easton v. Sutter Coast Hosp., 80 Cal.

“Pursuant to California

10

civilly liable for false arrest . . . if the police officer had

11

reasonable cause to believe the arrest was lawful . . . .”

12

Turner v. Oakland Police Officers, No. C 09-03652, 2010 WL

13

234898, at *5 (N.D. Cal. Jan. 14, 2010).

14

arrest exists when the facts known to the arresting officer would

15

lead a reasonable person to have a strong suspicion of the

16

arrestee’s guilt.”

17

to the unreasonable seizure claim, the court will deny

18

defendants’ motions with respect to the false imprisonment claim.

19

E.

Id.

“Reasonable cause to

For the reasons discussed with respect

Plaintiffs’ Intentional Infliction of Emotional

20

Distress Claim

21

The elements for the tort of intentional infliction of

22

emotional distress are “(1) extreme and outrageous conduct by the

23

defendant with the intention of causing, or reckless disregard of

24

the probability of causing, emotional distress; (2) the

25

plaintiff’s suffering severe or extreme emotional distress; and

26

(3) actual and proximate causation of the emotional distress by

27
28

liable to the extent the individual defendants are liable for the
state law torts.
20

1

the defendant’s outrageous conduct.”

Christensen v. Super. Ct.,

2

54 Cal. 3d 868, 904 (1991) (quoting Davidson v. City of

3

Westminister, 32 Cal. 3d 197, 209 (1982)).

4

by a police officer could be considered extreme and outrageous

5

conduct.

6

KJM, 2006 WL 768831, at *5 (E.D. Cal. Mar. 27, 2006) (Levi, J.);

7

Lewis v. City of Portland, No. Civ. 99-1279-AS, 2000 WL 254004,

8

at *3 (D. Or. Jan.21, 2000).

9

that they suffer from emotional distress.

An unprovoked attack

See Graves v. City of Stockton, No. Civ. 04-0430 DFL

Plaintiffs have presented evidence
While Butler’s

10

emotional distress seems to be significantly less than Newman’s,

11

it is sufficient.

12

Accordingly, the court will deny defendants’ motions for summary

13

judgment on this claim.

14

F.

See Graves, 2006 WL 768831, at *6.

Plaintiffs’ Negligent Infliction of Emotional Distress

15

Claim

16

Plaintiffs treat this claim as a general negligence

17

claim.

“The elements of a negligence cause of action are: (1) a

18

legal duty to use due care; (2) a breach of such legal duty; (3)

19

the breach was the proximate or legal cause of the resulting

20

injury; and (4) actual loss or damage resulting from the breach

21

of the duty of care.”8

22

1190, 1209 (E.D. Cal. 2008) (O’Neill, J.).

23

police officers have a duty not to use excessive force.

24

v. City of Oakland, 647 F. Supp. 2d 1129, 1164 (N.D. Cal. 2009).

25

“[W]hether an officer breached such duty is ‘analyzed under the

Megargee v. Wittman, 550 F. Supp. 2d
Under California law,
Knapps

26
27
28

8

Wood argues that plaintiffs’ claim is barred by
contributory negligence or assumption of the risk. The court
finds triable issues of fact with respect to these affirmative
defenses.
21

1

reasonableness standard of the Fourth Amendment to the United

2

Constitution.’”

3

05-46 CW, C 05-956, 2006 WL 2168329, *21 (N.D. Cal. July 31,

4

2006)).

5

excessive force claim, the court will deny defendants’ motions

6

for summary judgment on the negligence claim.

7

G.

Id. (quoting David v. City of Fremont, Nos. C

For the reasons discussed above with respect to the

Newman’s ADA and Rehabilitation Act Claims against

8

Delta College

9

In the education context, “[t]o make out a prima facie

10

case under either the ADA or Rehabilitation Act [a plaintiff]

11

must show that (1) she is disabled under the Act; (2) she is

12

‘otherwise qualified’ to remain a student at the [] School, i.e.,

13

she can meet the essential eligibility requirements of the

14

school, with or without reasonable accommodation; (3) she was

15

dismissed solely because of her disability; and (4) the [] School

16

receives federal financial assistance (for the Rehabilitation Act

17

claim), or is a public entity (for the ADA claim).”

18

Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999)

19

(explaining 29 U.S.C. § 794 (Rehabilitation Act provision) and 42

20

U.S.C. § 12132 (ADA provision)).

Zukle v.

21

The ADA regulations require a public entity to “make

22

reasonable modifications in policies, practices, or procedures

23

when the modifications are necessary to avoid discrimination on

24

the basis of disability, unless the public entity can demonstrate

25

that making the modifications would fundamentally alter the

26

nature of the services, program, or activity.”

27

35.130(b)(7); see also 34 C.F.R. § 104.44(a).

28

28 C.F.R. §

Here, Newman bases her ADA and Rehabilitation Act
22

1

claims on Delta College (1) suspending Newman from attending

2

classes following the March 13, 2008, incident, (2) “failing to

3

conduct a proper analysis of her disability which resulted in a

4

failure to recognize her need for a caregiver to be present in

5

classes with her,” and (3) failing to provide “regular and

6

consistent counseling to ensure her academic progress.”

7

Opp’n to Delta College & Ruley’s Mot. at 96:8-13.)

8

(Pls.’

Newman met with someone from Delta College’s DSPS

9

office on June 29, 2007.

Newman told Roger Keeney that she had

10

psychological problems.

The only documentation Keeney required

11

was a letter from the Social Security Administration confirming

12

that she was receiving disability benefits.

13

Ex. N (Keeney dep. trans.), at 19, 25-26, 33-34.)

14

guidelines allow for a student to be accompanied to class by a

15

caregiver, but Newman was not offered this accommodation until

16

after the incident.

17

before the incident, such as extended test-taking time.

18

While it appears undisputed that Newman never

19

specifically requested that a caretaker accompany her to class or

20

academic counseling, there appears to be a genuine dispute as to

21

whether Delta College engaged in good faith in the interactive

22

process.

23

public entity as follows:

24
25
26
27
28

(See Meleyco Decl.
DSPS’s

Newman was allowed some accommodations

The Ninth Circuit has explained what is required of a

If [the plaintiff] is disabled, the [public entity] also
had a duty to engage in an interactive process to
consider his requested accommodations.
As we have
explained in the context of our employment cases, once
the need for accommodation has been established, there is
a mandatory obligation to engage in an informal
interactive process “to clarify what the individual needs
and identify the appropriate accommodation.”
This
interactive process is triggered upon notification of the
23

1
2

disability and the desire for accommodation. An employer
who fails to engage in such an interactive process in
good faith may incur liability “if a reasonable
accommodation would have been possible.”

3
Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (quoting
4
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112, 1114, 1116 (9th
5
Cir. 2000)) (addressing 28 C.F.R. § 35.130(b)(7)) (citations
6
omitted) (emphasis added).
7
Newman’s theory is, had Delta College engaged in good
8
faith in the interactive process, the incident of March, 13,
9
2008, may have been prevented.

If the incident had been

10
prevented, Newman would not have been suspended.

The Ninth

11
Circuit has noted the connection between the failure to
12
accommodate and termination in the employment context.

See

13
Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1138-39 (9th Cir.
14
2001) (“Often the two claims, are, from a practical standpoint,
15
the same. . . . In this case, MHA’s stated reason for Humphrey's
16
termination was absenteeism and tardiness.

For purposes of the

17
ADA, with a few exceptions, conduct resulting from a disability
18
is considered to be part of the disability, rather than a
19
separate basis for termination.

The link between the disability

20
and termination is particularly strong where it is the employer’s
21
failure to reasonably accommodate a known disability that leads
22
to discharge for performance inadequacies resulting from that
23
disability.”).

Thus, the genuine issue with respect to the

24
failure to accommodate leads the court to deny Delta College’s
25
motion for summary judgment as to the ADA and Rehabilitation Act
26
27
28
24

1
2

claims.9
H.

Newman’s California’s Unruh Act and DPA Claim against

3

Delta College

4

“The DPA and the Unruh Act10 both focus on ensuring

5

that persons with disabilities have equal access to public

6

businesses, facilities, and other accommodations.”

7

of Butte, 458 F.3d 978, 980 (9th Cir. 2006); see Cal. Civil Code

8

§§ 51, 54.1; see generally Molski v. Arciero Wine Grp.

9

164 Cal. App. 4th 786, 792 (2d Dist. 2008) (explaining how

Bass v. Cnty.

10

remedies differ under Unruh Act and DPA); C.B. v. Sonora School

11

Dist., 691 F. Supp. 2d 1123, 1154 (E.D. Cal. 2009) (Wanger, J.)

12

(same).

13
14

Violations of the ADA generally constitute violations
of the Unruh Act and DPA.

See Cal. Civ. Code §§ 51(f), 54(c);

15
16
17
18
19
20
21
22
23
24
25
26
27
28

9

While not raised by Delta College, the court notes that
“[t]o recover monetary damages under Title II of the ADA or the
Rehabilitation Act, a plaintiff must prove intentional
discrimination on the part of the defendant,” and the standard
for intentional discrimination is deliberate indifference.
Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001).
“Deliberate indifference requires both knowledge that a harm to a
federally protected right is substantially likely, and a failure
to act upon that likelihood.” Id. at 1139. Thus, to recover
monetary damages at trial on the ADA and Rehabilitation Act
claims, Newman must prove intentional discrimination.
10

The Unruh Act provides that “[a]ll persons within the
jurisdiction of this state are free and equal, and no matter what
their . . . disability . . . are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments of every kind whatsoever.” Cal.
Civ. Code § 51(b).
The DPA provides that “[i]ndividuals with disabilities
shall be entitled to full and equal access, as other members of
the general public, to accommodations, advantages, facilities, .
. . and privileges of . . . places of public accommodation . . .
and other places to which the general public is invited . . . .”
Cal. Civ. Code § 54.1.
25

1

Bass, 458 F.3d 978.

2

Acts do not extend to ADA employment violations).

3

But see Bass 458 F.3d 978 (holding that the

Here, based on her opposition, it appears that Newman’s

4

Unruh Act and DPA claims are based solely on the ADA violation.

5

Because Newman has a triable ADA claim, the court will deny the

6

motion with respect to these state law claims.11

7

I.

Remedies for violations of California Government Code

8
9

California Government Code Section 11135

section 11135, which prohibits entities receiving funding from

10

the state from discriminating based on disability, are limited to

11

“a civil action for equitable relief.”

12

Cal. Gov’t Code § 11139.

Here, at the oral argument, Newman’s counsel stated

13

that the only equitable relief Newman seeks is an injunction

14

requiring training of Delta College police officers.

15

College’s only argument for summary judgment on this claim is

16

that Newman will not be entitled to equitable relief under

17

California Civil Code section 3422 (describing grounds for a

18

permanent injunction).

19

Delta College has not demonstrated based on the evidence that

See Cal. Civil Code § 3422.

Delta

However,

20
21
22
23
24
25
26
27
28

11

However, to the extent the Unruh Act and DPA claims are
based on violations of Title II of the ADA, Newman will have to
prove intentional discrimination at trial to recover damages.
See C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1155 (E.D.
Cal. 2009) (Wanger, J.) (“[T]o the extent that the Complaint may
be construed to allege a violation of the Unruh Civil Rights Act
or the Disabled Persons Act based on a violation of the ADA,
because the Complaint alleges a violation of Title II of the ADA,
Plaintiff must plead and prove intentional discrimination in
order to state a claim for relief in the First Cause of
Action.”). If Newman’s claims are not based on ADA violations,
then whether Newman must prove intent to recover damages is based
on whether the claim is brought under the DPA or Unruh Act. See
Molski v. Arciero Wine Grp., 164 Cal. App. 4th 786, 792 (2d Dist.
2008) (explaining that Unruh Act requires intent and DPA does
not).
26

1

Newman, who remains a student at Delta College, will not be

2

entitled to equitable relief.

3

J.

4
5
6
7
8
9
10
11
12
13

California’s Government Claims Act
In denying Wood’s motion to dismiss in this action,

this court held:
Plaintiffs’ efforts substantially complied with the
Government Claims Act because plaintiffs’ complaints
alerted Delta College to the basis of the claims against
Delta College, Ruley, and Wood, and the amount of
damages that plaintiffs were seeking. In plaintiffs’
Online Citizen Complaint form, Newman even specifically
identified Wood and Ruley and the officers who used
force against her and arrested her. Under the facts as
alleged, Delta College should have been aware that a
monetary claim was being asserted against it and had
sufficient information such that it could thoroughly
investigate plaintiffs’ claims. Plaintiffs accordingly
have sufficiently alleged substantial compliance with
the claims presentation requirements of the Government
Claims Act.

14

Newman v. San Joaquin Delta Cmty. College Dist., No. CIV.

15

2:09-3441, 2010 WL 3633737, at *6 (E.D. Cal. Sept. 14, 2010).

16

Even if the court only considers the documents received

17

by Delta College,12 these documents include: (1) “Unlawful

18

Discrimination Complaint Forms,”13 (Butler Decl. II Exs. L1-L2);

19

(2) a March 21, 2008, letter, titled “Civil Rights Violation,”14

20
12

21
22

Delta College has not argued that the vice presidents
and deans whom received these documents were the wrong people.
See Cal. Gov’t Code § 915.
13

23
24
25
26
27
28

Plaintiffs alleged discrimination based on mental
disability, physical disability, and race. Butler requested
“compensation for the Police Brutality.” (Butler Decl. II Exs.
L1-L2.)
14

This letter describes the incident and suspension and
states that Delta College knew that Newman was disabled. The
letter concludes: “We feel that our civil and human rights have
been grossly violated by the police of Delta College and the
Administration. We would like your help, guidance, and Any type
of advice you have to help us. Be advised that we are not
willing to turn the other cheek in regards to this incident.
27

1

(id. Ex. C); (3) a May 21, 2008, letter, titled “Civil Rights

2

Violations, Unfair and Illegal Treatment of a Mentally and

3

Physically Handicapped Student,”15 (id. Ex. K); (4) “Statement of

4

Damages (Personal Injury or Wrongful Death)” forms,16 (id. Exs.

5

O1-O2; Newman Decl. II O1-O2); and (5) numerous letters from

6

Newman appealing her suspension.

7

Exs. D, D1.)

8

College refused to assist him “in trying to ‘extract money from

9

Delta College.’”

(See, e.g., Newman Decl. II

Butler states that a vice president at Delta

(Butler Decl. II ¶ 13.)

In response to the Unlawful Discrimination Complaint

10
11

Forms, a Delta College vice president wrote a letter to

12

plaintiffs.

13

suspension: “Ms. Newman and Mr. Butler feel their civil and human

14

rights have been grossly violated by the police and

15

administration of Delta College.”

16

found that the Campus Police acted appropriately given their

17

training and procedures for similar situations.” (Id. Ex. Q.)

The letter described the incident and subsequent

The official concluded: “We

18

Taking the documents together, which the court

19

reasonably infers was intended, plaintiffs substantially complied

20
21
22

Whatever it takes they should be held accountable for the
beatings in the classroom and any difficulties as a result of.”
(Id. Ex. C.)
15

23
24
25
26
27
28

This letter describes the incident, suspension, and
Newman’s disability, and alleges that the individual defendants’
and College’s conduct was based on race and Newman’s disability.
The letter states that “this Complaint against SJDC and the DCPD
. . . is not going away or [to] be swept under the rug.” The
letter concludes by asking for someone to intervene on
plaintiffs’ behalf. (Id. Ex. K.)
16

Butler sought $2 million in general damages for pain,
suffering, inconvenience, and emotional distress and $50 million
in punitive damages; Newman sought $2 million in general damages
and $50 million in punitive damages.
28

1

or Delta College failed to notify plaintiffs of any deficiencies

2

in the “claims as presented,” thus waiving the requirement.

3

City of San Jose v. Super. Ct., 12 Cal. 3d 447, 456-57 (1974)

4

(discussing substantial compliance); Wood v. Riverside Gen.

5

Hosp., 25 Cal. App. 4th 1113, 1118 (4th Dist. 1994) (same); City

6

of San Jose v. Super. Ct., 12 Cal. 3d 447, 456-57 (1974) (same);

7

Loehr v. Ventura Cnty. Cmty. Coll. Dist., 147 Cal. App. 3d 1071,

8

1083 (2d Dist. 1983) (same); Alliance Fin. v. City & Cnty. of San

9

Francisco, 64 Cal. App. 4th 635, 643 (1st Dist. 1998) (discussing

See

10

waiver); Santos v. Merritt College, No. C-07-5227, 2008 WL

11

4570708, at *5 (N.D. Cal. Oct. 14, 2008) (same).

12

the court will deny defendants’ motion for summary judgment on

13

presentment-requirement grounds.17

14

Accordingly,

IT IS THEREFORE ORDERED that Delta College and Ruley’s

15

motion for summary judgment or partial summary judgment be, and

16

the same hereby is, DENIED.

17

IT IS FURTHER ORDERED that Wood’s motion for summary

18

judgment or adjudication be, and the same hereby is, DENIED.

19

DATED:

August 31, 2011

20
21
22
23
24
25
26
27
28

17
A remaining issue is damages and causation. The court
declines to address defendants’ argument that punitive damages
are not justified. See Fed. R. Civ. P. 56(g) (If a court does
not grant all relief requested by a motion for summary judgment,
“it may enter an order stating any material fact--including an
item of damages or other relief--that is not genuinely in dispute
and treating the fact as established in the case.”) (emphasis
added).
The court also declines to address Wood’s arguments
with respect to whether Butler is entitled to loss of consortium
damages and whether plaintiffs suffered actual damages and, if
so, whether defendants caused them.

29