Solomon v. City of South Lake Tahoe et al
Filing
60
ORDER signed by Judge Garland E. Burrell, Jr on 11/14/14 GRANTING 43 City of South Lake Tahoe and City of South Lake Tahoe Police Department's Motion for Summary Judgment and GRANTING-IN-PART and DENYING-IN-PART 43 Jake Herminghaus's Motion for Summary Judgment. (Donati, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICK WAYNE SOLOMON, an
individual,
Plaintiff,
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CITY OF SOUTH LAKE TAHOE;
CITY OF SOUTH LAKE TAHOE
POLICE DEPARTMENT; OFFICER J.
HERMINGHAUS, individually and
in his official capacity;
COUNTY OF EL DORADO SHERIFF‟S
DEPARTMENT; OFFICER BRANDON
PINA, individually and in his
official capacity; and DOES
1-10, inclusive,
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2:13-cv-00115-GEB-CKD
ORDER GRANTING DEFENDANTS CITY
OF SOUTH LAKE TAHOE’S AND CITY
OF SOUTH LAKE TAHOE POLICE
DEPARTMENT’S MOTION FOR SUMMARY
JUDGMENT AND GRANTING IN PART
AND DENYING IN PART DEFENDANT
JAKE HERMINGHAUS’S MOTION FOR
SUMMARY JUDGMENT
v.
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11
No.
Defendants.
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Defendants City of South Lake Tahoe, the City of South
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19
Lake
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Herminghaus (“Herminghaus”) (collectively the “Defendants”) move
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for
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adjudication of the issues, under Federal Rule of Civil Procedure
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(“Rule”) 56(c). (Mot. Summary Judgment (“Mot.”), ECF No. 43.)
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Tahoe
summary
Police
Department
judgment,
Plaintiff‟s
or
in
Complaint
(the
the
is
“City”)
and
alternative,
comprised
of
Officer
for
the
Jake
summary
following
25
federal claims: (1) use of excessive force; (2) false arrest; (3)
26
malicious prosecution; (4) fabrication of false evidence; (5)
27
conspiracy; and (6) failure to implement appropriate policies,
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customs and practices; and failure to train. (Compl., ECF No. 1.)
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I. Legal Standard
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The movant for summary judgment must establish “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.” Rule 56(a).
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An issue of material fact is “genuine” when “„the evidence is
6
such
7
nonmoving party.‟” Thrifty Oil Co. v. Bank of Am. Nat‟l Trust &
8
Sav. Ass‟n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson
9
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
that
10
a
reasonable
If
the
movant
jury
could
satisfies
return
its
a
verdict
“initial
for
burden,”
the
“the
11
nonmoving party must set forth, by affidavit or as otherwise
12
provided in Rule 56, „specific facts showing that there is a
13
genuine issue for trial.‟” T.W. Elec. Serv., Inc. v. Pac. Elec.
14
Contractors Ass‟n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting
15
former
16
nonmovant,
17
allegations‟ but must instead produce evidence that „set[s] forth
18
specific facts showing that there is a genuine issue for trial.‟”
19
Tucker ex rel. v. Interscope Records, Inc., 515 F.3d 1019, 1030
20
(9th Cir. 2003) (citing Anderson, 477 U.S. at 248) (alterations
21
in original).
Fed.
R.
the
Civ.
P.
56(e)).
nonmovant
If
“cannot
the
burden
„rest
shifts
upon.
.
22
Further, Local Rule 260(b) prescribes:
23
Any party opposing a motion for summary
judgment
or
summary
adjudication
[must]
reproduce the itemized facts in the [moving
party‟s] Statement of Undisputed Facts and
admit those facts that are undisputed and
deny those that are disputed, including with
each denial a citation to the particular
portions
of
any
pleading,
affidavit,
deposition, interrogatory answer, admission,
or other document relied upon in support of
that denial.
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to
.
the
mere
1
If
the
nonmovant
does
not
“specifically
.
.
.
2
[controvert duly supported] facts identified in the [movant‟s]
3
statement of undisputed facts,” the nonmovant “is deemed to have
4
admitted the validity of the facts contained in the [movant‟s]
5
statement.” Beard v. Banks, 548 U.S. 521, 527 (2006).
6
Because a district court has no independent
duty “to scour the record in search of a
genuine issue of triable fact,” and may “rely
on the nonmoving party to identify with
reasonable particularity the evidence that
precludes summary judgment,” . . . the
district court . . . [is] under no obligation
to undertake a cumbersome review of the
record on the [nonmovant‟s] behalf.
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Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.
2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.
1996)).
II. FACTUAL BACKGROUND1
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The following facts are uncontroverted in the summary
judgment record. On January 21, 2011, Plaintiff approached offduty correctional officer Pina at a Raley‟s grocery store in
South
Lake
Tahoe.
(Dep.
Patrick
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(“Solomon
Dep.
Tr.”)
22:14-17, ECF Nos. 43-2 & 45-1; Dep. Brandon Pina (“Pina Dep.
Tr.”) 39:2-3, ECF Nos. 43-3 & 45-2.) Plaintiff knew from prior
incarcerations that Pina was a correctional officer. (Pl. Resp.
Undisp. Facts 2:3-6, ECF No. 46.)
Plaintiff
made
physical
contact
with
a
portion
of
Pina‟s body from behind. (Solomon Dep. Tr. 22:14-17, 25:14-17;
Pina Dep. Tr. 39:2-3; Pina Trial Tr. 6:12-18, ECF No. 45-3.)
1
27
Solomon
Plaintiff contends a number of Defendants‟ statements of
undisputed facts are “disputed.” However, except as discussed below, Plaintiff
has not supported these contentions with facts controverting the referenced
evidence.
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Pina subsequently phoned the South Lake Tahoe Police Department
2
and told the police dispatch, “Hey, this is. . . Officer Pina
3
from the jail. I‟m over at. . . the Raley‟s [grocery store]. . .
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I just had an inmate, Patrick Solomon, come up and start pushing
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me. I was wondering maybe you could send a car over.” (9-1-1
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Recording (“911 Tr.”) 1:3-7, ECF No. 45-4; Pina Dep. Tr. 40:22-
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25, 41:10-42:2; Pina Trial Tr. 41:15-17.) The dispatcher then
8
spoke with Herminghaus, an officer with the City of South Lake
9
Tahoe Police Department, and told him, in pertinent part, “RP
10
works at the jail and an ex-inmate came up and started pushing
11
him.” (Police Dispatch Recording (“Dispatch Tr.”) 1:2-4, ECF No.
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45-6.) Dispatch also provided Herminghaus a description of the
13
suspect: “It‟s Patrick Solomon. . . WMA, gray hair wearing a
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green long-sleeved shirt and . . . black pants and he went back
15
inside the store.” (Dispatch Tr. 1:6-8.)
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After
arriving
at
the
Raley‟s
grocery
store,
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Herminghaus spoke with Pina. (Dep. Jake Herminghaus (“Herminghaus
18
Dep. Tr.”) 11:12-15, 15:2-4, ECF Nos. 43-4 & 45-5; Pina Dep. Tr.
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63:12-64:23.) Pina identified Plaintiff to Herminghaus and then
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Herminghaus told Plaintiff he was under arrest. (Solomon Dep. Tr.
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32:4-9; Pina Dep. Tr. 71:1-15; 73:14-16; Herminghaus Dep. Tr.
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31:18-22.) When Herminghaus approached Plaintiff, Plaintiff was
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standing in one of the grocery aisles wearing a long-sleeved
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green shirt and black pants. (DVD Videos of Incident (“Video 2”)
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15:51:10.20, ECF No. 43-52.)
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2
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Defendants submitted three Windows Media Player files containing
video of the incident as Exhibit 5, ECF No. 45-3: Vpd_RALEYS1274_MM_2011_01_21_23_41_03 (“Video 1”), Vpd_RALEYS127-1_MM_2011_01_21_23_50_55
(“Video 2”), and Vpd_RALEYS127-1_MM_2011_01_21_23_51_01 (“Video 3.”)
4
1
While Herminghaus was placing Plaintiff under arrest,
2
Plaintiff turned toward Herminghaus. (Solomon Dep. Tr. 35:5-9;
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Video 2 15:51:16.87-15:51:42.24.) Herminghaus applied force to
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Plaintiff‟s backside and Plaintiff came into contact with store
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shelving, hitting shelving on both sides of the aisle. (Solomon
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Dep. Tr. 41:1-2; 41:23-25-42:1; 42:16-22; Pina Trial Tr. 21:10-
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24;
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15:51:49.44.) When Herminghaus was moving with Plaintiff towards
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a store exit, Herminghaus took Plaintiff to the ground, face
10
down. (Solomon Dep. Tr. 56:5-10; Herminghaus Dep. Tr. 37:18-25;
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Video 3 15:51:53.66-15:52:20.89.)
Herminghaus
Dep.
Tr.
36:15-37:10;
Video
2
15:51:42.24-
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Plaintiff was taken to the hospital where he received
13
care for “2 lac[erations] to [the] forehead.” (Solomon Emergency
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Room Records (“ER Records”), ECF No. 45-7.)
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Subsequently,
Herminghaus
gave
deposition
testimony
16
that to the best of his knowledge, no one at the South Lake Tahoe
17
Police
18
connection with the incident. (Herminghaus Dep. Tr. 45:8-12.)
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Herminghaus also testified that he is not aware of any internal
20
investigation regarding the arrest “other than the reports that
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have
22
incident.
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subsequently prosecuted and Herminghaus spoke to the prosecution
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and Pina regarding the grocery store incident. (Herminghaus Dep.
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Tr. 51:13-52:1.)
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///
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///
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///
Department
been
filed”;
ever
and
(Herminghaus
alleged
he
has
Dep.
he
not
Tr.
5
used
been
excessive
disciplined
45:13-46:3.)
force
in
for
the
Plaintiff
was
1
2
III. DISCUSSION
A.
Probable Cause
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Defendants seek summary judgment on Plaintiff‟s false
4
arrest
and
malicious
5
“premised on the fact that [Plaintiff] was later not found guilty
6
of the original criminal charge,” and “the Supreme Court has long
7
held that an officer making an arrest based on probable cause
8
shall not be liable even if it turns out that the individual is
9
innocent.”
(Mot.
prosecution
5:26-6:4.)
claims
Defendants
arguing
contend
that
since
each
is
probable
10
cause to arrest Plaintiff is an essential element of each of
11
these claims and Plaintiff‟s arrest was justified by probable
12
cause, their motion should be granted.
13
Plaintiff
by
counters
Herminghaus
“[t]he
obtained
15
insufficient
16
“Plaintiff
17
no
specific
probable
intent
the
arrest
cause
to
.
information
he...touched Pina....” (Opp‟n 10:28-11:2; 11:6-8.)
had
establish
to
of
14
to
prior
amount
commit
.
[was]
arrest,”
for
since
a
.
battery
when
18
California defines criminal battery as the “willful and
19
unlawful use of force or violence upon the person of another.”
20
Cal. Pen. Code § 242. The California Supreme Court recently held
21
“„[i]t has long been established that the least touching may
22
constitute battery. In other words, force against the person is
23
enough; it need not be violent or severe, it need not cause
24
bodily harm or even pain, and it need not leave a mark.”‟ People
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v. Shockley, 58 Cal.4th 400, 404 (2013) (quoting 1 Witkin &
26
Epstein, Cal. Crim. Law (4th ed. 2012) Crimes Against the Person,
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§ 13, p. 804).
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When determining whether an officer has probable cause
6
1
to make an arrest for battery, the issue is whether the “facts
2
and circumstances within the officer‟s knowledge . . . [were]
3
sufficient to warrant a prudent person, or one of reasonable
4
caution,
5
suspect . . . committed. . . an offense.” Michigan v. DeFillippo,
6
443
7
determination, “[i]t is essential to avoid hindsight analysis,
8
i.e., to consider additional facts that became known only after
9
the arrest was made.” John v. City of El Monte, 515 F.3d 936, 940
10
in
U.S.
believing,
31,
37
in
(1979).
the
circumstances
When
making
shown,
this
that
probable
the
cause
(9th Cir. 2007).
11
15
Because probable cause must be evaluated from
the perspective of „prudent [people]‟, not
legal technicians,‟ an officer need not have
probable cause for every element of the
offense. However, when specific intent is a
required
element
of
the
offense,
the
arresting officer must have probable cause
for that element in order to reasonably
believe that a crime has occurred.
16
Blankenhorn, 485 F.3d at 472 (quoting Gasho v. United States, 39
17
F.3d 1420, 1428 (9th Cir. 1994)). The California Supreme Court
18
had stated battery “requires general criminal intent.” People v.
19
Sargent, 19 Cal. 4th 1206, 1220 (1999).
12
13
14
20
Plaintiff
has
not
controverted
Defendants‟
evidence
21
evincing that Herminghaus had probable cause to arrest Plaintiff
22
for battery. The evidentiary record shows Herminghaus went to the
23
grocery
24
“[Pina] works at the jail and an ex-inmate came up and started
25
pushing him.” (Dispatch Tr. 1:2-3.) Herminghaus spoke to Pina and
26
Pina identified Plaintiff. (Herminghaus Dep. Tr. 18:16-18, 31:18-
27
22; Pina Dep. Tr. 71:1-15.) Plaintiff also visually matched the
28
description
store
of
after
the
receiving
suspect
information
that
7
dispatch
from
gave
dispatch
that
Herminghaus.
1
(Dispatch Tr. 1:6-8; Video 2 15:51:10.47.) Since pushing is use
2
of
3
Plaintiff for criminal battery.
unlawful
force,
Herminghaus
had
probable
cause
to
arrest
4
Lack of probable cause is an essential element of false
5
arrest and malicious prosecution. Cabrera v. City of Huntington
6
Park, 159 F.3d 374, 380 (9th Cir. 1998) (“To prevail on his [42
7
U.S.C.] § 1983 claim for false arrest. . . [the plaintiff] would
8
have to demonstrate that there was no probable cause to arrest
9
him.”); Lacey v. Maricopa Cnty, 693 F.3d 896, 919 (9th Cir. 2012)
10
(“To claim malicious prosecution, a petitioner must allege „that
11
the defendants prosecuted [him]. . . without probable cause...”).
12
Therefore,
13
Plaintiff‟s
14
granted.
15
B.
16
each
Defendant‟s
false
arrest
motion
and
for
malicious
summary
judgment
prosecution
claims
on
is
Fabrication of False Evidence and Conspiracy Claims
Defendants
seek
summary
judgment
on
Plaintiff‟s
17
fabrication of false evidence and conspiracy claims arguing the
18
record
19
fabrication of false evidence claim requires Plaintiff to “point
20
to evidence that supports at least one of the following two
21
propositions:
22
[Plaintiff] despite the fact that they knew or should have known
23
that
24
techniques that were so coercive and abusive that they knew or
25
should
26
information.” Constanich v. Dep‟t of Social and Health Servs.,
27
627 F.3d 1101, 1111 (9th Cir. 2010) (citing Devereaux v. Abbey,
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263 F.3d 1070, 1076 (9th Cir. 2001)).
8
he
is
devoid
was
have
(1)
of
Defendants
innocent;
known
evidence
that
or
supporting
continued
(2)
those
these
their
Defendants
techniques
claims.
investigation
used
would
A
of
investigative
yield
false
1
There is no evidence in the summary judgment record
2
from
which
a
3
investigation into the alleged battery continued despite the fact
4
that
5
innocent
6
investigative techniques.
officers
7
or
reasonable
knew
or
that
Further,
should
any
a
inference
could
have
officer
conspiracy
be
known
drawn
the
that
Plaintiff
used
coercive
and
claim
requires
evidence
the
was
abusive
of
8
agreement.
9
(indicating a plaintiff is required to establish a conspiracy
10
claim
11
Plaintiff contends “[d]iscovery brought to light several disputed
12
facts
13
fabricated evidence and conspiracy to pursue prosecution.” (Opp‟n
14
11:21-24.)
15
supported by sufficient factual evidence of an agreement. T.W.
16
Elec. Serv., Inc., 809 F.2d at 630 (finding that when the movant
17
satisfies its summary judgment burden, the nonmoving party must
18
set forth specific facts showing a genuine issue for trial to
19
prevent summary judgment). Therefore, each Defendant‟s motion for
20
summary judgment on Plaintiff‟s fabrication of false evidence and
21
conspiracy claims is granted.
22
with
Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010)
that
C.
evidence
of
Plaintiff‟s
However,
an
arrest
express
and
Plaintiff‟s
or
implied
prosecution
conclusory
agreement).
were
argument
based
is
on
not
City Liability
23
The City seeks summary judgment on Plaintiff‟s claim in
24
which Plaintiff alleges: the City failed to implement appropriate
25
policies, customs and practices concerning the excessive force he
26
experienced; ratified that use of excessive force; and, failed to
27
adequately train and supervise Officer Herminghaus so that he
28
would not have inflicted that excessive force. The City argues
9
1
“discovery has revealed zero evidence to support” these claims.
2
(Mot. 14:14-19.)
3
Plaintiff counters the City “failed to follow its own
4
policy [of] investigat[ing] the use of force, [and that failure]
5
result[ed]
6
Herminghaus was never disciplined in connection with the arrest,
7
“[t]he City of South Lake Tahoe Police Department ratified and
8
affirmed as appropriate, the amount of force that Herminghaus
9
used . . . [against] Plaintiff.” (Opp‟n 18:7-12.)
in
[Plaintiff‟s]
physical
injury;”
and
since
10
Plaintiff may establish that the City is liable for the
11
excessive force to which he claims he was subjected by presenting
12
evidence
13
pursuant to a formal governmental policy” or by proving that “a[]
14
[City]
15
[Herminghaus‟s alleged] unconstitutional...action and the basis
16
for it.” Gillette v. Delmore, 972 F.2d 1342, 1346-47 (9th Cir.
17
1992). Plaintiff may establish that the City is liable for his
18
failure to train claim by demonstrating that the City‟s training
19
of its officers was deliberately indifferent to Plaintiff‟s right
20
not to be subjected to excessive force. Flores v. Cnty. of Los
21
Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014).
that
the
official
22
with
1.
23
The
alleged
City
“constitutional
final
policymaking
violation
authority
[was]
ratified
City Policy
policy
that
Plaintiff
argues
supports
his
24
claim states in pertinent part: “When a supervisor is able to
25
respond
to
an
incident
26
application
of
force,
27
certain duties. (Decl. Susan M. Leeder, Ex. 9, ECF No. 45-9)
28
(emphasis added). However, no evidence has been presented from
10
in
the
which
there
supervisor
is
has
been
expected
a
to”
reported
perform
1
which
2
department
3
reported excessive force, or otherwise violated the policy.
a
reasonable
inference
supervisor
4
2.
was
could
able
to
be
drawn
respond
that
to
an
a
police
incident
of
Ratification
5
Nor has evidence been presented from which a reasonable
6
inference could be drawn that the City “ratified as appropriate”
7
Herminghaus‟ actions.
8
prove
9
subordinate's decision and the basis for it.‟ ” Christie v. Iopa,
10
176 F.3d 1231, 1239 (9th Cir. 1999) (quoting City of St. Louis v.
11
Praprotnik,
12
generally requires more than acquiescence.” Sheehan v. City and
13
Cnty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014).
that
the
485
14
„authorized
U.S.
3.
15
“To show ratification, a plaintiff must
112,
policymakers
127
(1988)).
approve[d]
“Ratification
.
a
.
.
Deliberate Indifference
Plaintiff has also failed to present facts from which a
16
reasonable
17
Herminghaus‟
18
Plaintiff‟s
19
“[A]bsent evidence of a „program-wide inadequacy in training,‟
20
any
21
insufficient to demonstrate deliberate indifference. Blankenhorn
22
v. City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007) (citing
23
Alexander v. City and Cnty. of San Francisco, 29 F.2d 1355, 1367
24
(9th Cir. 1994)).
25
inference
could
training
right
[asserted]
not
be
drawn
amounted
to
shortfall
be
in
to
that
deliberate
subjected
a
the
single
to
inadequacy
of
indifference
to
excessive
officer‟s
force.
training”
is
For the stated reasons, the City Defendants‟ summary
26
judgment motions are granted.
27
///
28
///
11
1
D.
2
Qualified Immunity
Herminghaus
argues
his
qualified
immunity
defense
3
shields him from liability for Plaintiff‟s excessive force claim,
4
since he used objectively reasonable force to arrest and control
5
and uncooperative arrestee. (Mot. 10:18-21.) “The principles of
6
qualified immunity shield an officer from personal liability when
7
an officer reasonably believes that his or her conduct complies
8
with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009).
9
However, genuine issues of disputed material fact exist
10
as to the amount of force Herminghaus used and the circumstances
11
in which that force was applied, which prevents the conclusion
12
that, as a matter of law, the force Herminghaus applied was
13
objectively reasonable. Therefore, Herminghaus‟ summary judgment
14
motion
15
Plaintiff‟s excessive force is denied.
based
on
his
qualified
16
immunity
defense
concerning
IV. CONCLUSION
17
For the reasons stated, the City Defendants prevail on
18
their motions and Herminghaus‟ motion for summary judgment is
19
GRANTED in part and DENIED in part.
20
Dated:
November 14, 2014
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24
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