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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No.

Defendants.

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Defendants City of South Lake Tahoe, the City of South

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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

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federal claims: (1) use of excessive force; (2) false arrest; (3)

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malicious prosecution; (4) fabrication of false evidence; (5)

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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

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such

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nonmoving party.‟” Thrifty Oil Co. v. Bank of Am. Nat‟l Trust &

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Sav. Ass‟n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

that

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a

reasonable

If

the

movant

jury

could

satisfies

return

its

a

verdict

“initial

for

burden,”

the

“the

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nonmoving party must set forth, by affidavit or as otherwise

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provided in Rule 56, „specific facts showing that there is a

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genuine issue for trial.‟” T.W. Elec. Serv., Inc. v. Pac. Elec.

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Contractors Ass‟n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting

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former

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nonmovant,

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allegations‟ but must instead produce evidence that „set[s] forth

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

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Tucker ex rel. v. Interscope Records, Inc., 515 F.3d 1019, 1030

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(9th Cir. 2003) (citing Anderson, 477 U.S. at 248) (alterations

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in original).

Fed.

R.
the

Civ.

P.

56(e)).

nonmovant

If

“cannot

the

burden

„rest

shifts

upon.

.

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Further, Local Rule 260(b) prescribes:

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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

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If

the

nonmovant

does

not

“specifically

.

.

.

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[controvert duly supported] facts identified in the [movant‟s]

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statement of undisputed facts,” the nonmovant “is deemed to have

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admitted the validity of the facts contained in the [movant‟s]

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statement.” Beard v. Banks, 548 U.S. 521, 527 (2006).

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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.)
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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

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and told the police dispatch, “Hey, this is. . . Officer Pina

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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

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spoke with Herminghaus, an officer with the City of South Lake

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Tahoe Police Department, and told him, in pertinent part, “RP

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works at the jail and an ex-inmate came up and started pushing

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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

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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

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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

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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.”)

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While Herminghaus was placing Plaintiff under arrest,

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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

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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

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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

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that to the best of his knowledge, no one at the South Lake Tahoe

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Police

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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

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investigation regarding the arrest “other than the reports that

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have

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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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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

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III. DISCUSSION
A.

Probable Cause

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Defendants seek summary judgment on Plaintiff‟s false

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arrest

and

malicious

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“premised on the fact that [Plaintiff] was later not found guilty

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of the original criminal charge,” and “the Supreme Court has long

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held that an officer making an arrest based on probable cause

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shall not be liable even if it turns out that the individual is

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innocent.”

(Mot.

prosecution

5:26-6:4.)

claims

Defendants

arguing

contend

that

since

each

is

probable

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cause to arrest Plaintiff is an essential element of each of

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these claims and Plaintiff‟s arrest was justified by probable

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cause, their motion should be granted.

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Plaintiff
by

counters

Herminghaus

“[t]he

obtained

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insufficient

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“Plaintiff

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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

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to

prior

amount

commit

.

[was]

arrest,”

for

since

a

.

battery

when

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California defines criminal battery as the “willful and

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unlawful use of force or violence upon the person of another.”

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Cal. Pen. Code § 242. The California Supreme Court recently held

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“„[i]t has long been established that the least touching may

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constitute battery. In other words, force against the person is

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enough; it need not be violent or severe, it need not cause

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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 &

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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
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to make an arrest for battery, the issue is whether the “facts

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and circumstances within the officer‟s knowledge . . . [were]

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sufficient to warrant a prudent person, or one of reasonable

4

caution,

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suspect . . . committed. . . an offense.” Michigan v. DeFillippo,

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443

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determination, “[i]t is essential to avoid hindsight analysis,

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i.e., to consider additional facts that became known only after

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the arrest was made.” John v. City of El Monte, 515 F.3d 936, 940

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in

U.S.

believing,

31,

37

in

(1979).

the

circumstances

When

making

shown,

this

that

probable

the

cause

(9th Cir. 2007).

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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.

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Blankenhorn, 485 F.3d at 472 (quoting Gasho v. United States, 39

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F.3d 1420, 1428 (9th Cir. 1994)). The California Supreme Court

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had stated battery “requires general criminal intent.” People v.

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Sargent, 19 Cal. 4th 1206, 1220 (1999).

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14

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Plaintiff

has

not

controverted

Defendants‟

evidence

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evincing that Herminghaus had probable cause to arrest Plaintiff

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for battery. The evidentiary record shows Herminghaus went to the

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grocery

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“[Pina] works at the jail and an ex-inmate came up and started

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pushing him.” (Dispatch Tr. 1:2-3.) Herminghaus spoke to Pina and

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Pina identified Plaintiff. (Herminghaus Dep. Tr. 18:16-18, 31:18-

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22; Pina Dep. Tr. 71:1-15.) Plaintiff also visually matched the

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description

store

of

after

the

receiving

suspect

information

that
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dispatch

from

gave

dispatch

that

Herminghaus.

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(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

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Lack of probable cause is an essential element of false

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arrest and malicious prosecution. Cabrera v. City of Huntington

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Park, 159 F.3d 374, 380 (9th Cir. 1998) (“To prevail on his [42

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U.S.C.] § 1983 claim for false arrest. . . [the plaintiff] would

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have to demonstrate that there was no probable cause to arrest

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him.”); Lacey v. Maricopa Cnty, 693 F.3d 896, 919 (9th Cir. 2012)

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(“To claim malicious prosecution, a petitioner must allege „that

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the defendants prosecuted [him]. . . without probable cause...”).

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Therefore,

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Plaintiff‟s

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granted.

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B.

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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

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fabrication of false evidence and conspiracy claims arguing the

18

record

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fabrication of false evidence claim requires Plaintiff to “point

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to evidence that supports at least one of the following two

21

propositions:

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[Plaintiff] despite the fact that they knew or should have known

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that

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techniques that were so coercive and abusive that they knew or

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should

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information.” Constanich v. Dep‟t of Social and Health Servs.,

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627 F.3d 1101, 1111 (9th Cir. 2010) (citing Devereaux v. Abbey,

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263 F.3d 1070, 1076 (9th Cir. 2001)).
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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

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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

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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

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fabricated evidence and conspiracy to pursue prosecution.” (Opp‟n

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11:21-24.)

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supported by sufficient factual evidence of an agreement. T.W.

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Elec. Serv., Inc., 809 F.2d at 630 (finding that when the movant

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satisfies its summary judgment burden, the nonmoving party must

18

set forth specific facts showing a genuine issue for trial to

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prevent summary judgment). Therefore, each Defendant‟s motion for

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summary judgment on Plaintiff‟s fabrication of false evidence and

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conspiracy claims is granted.

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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

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The City seeks summary judgment on Plaintiff‟s claim in

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which Plaintiff alleges: the City failed to implement appropriate

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policies, customs and practices concerning the excessive force he

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experienced; ratified that use of excessive force; and, failed to

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adequately train and supervise Officer Herminghaus so that he

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would not have inflicted that excessive force. The City argues
9

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“discovery has revealed zero evidence to support” these claims.

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(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]

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Herminghaus was never disciplined in connection with the arrest,

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“[t]he City of South Lake Tahoe Police Department ratified and

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affirmed as appropriate, the amount of force that Herminghaus

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used . . . [against] Plaintiff.” (Opp‟n 18:7-12.)

in

[Plaintiff‟s]

physical

injury;”

and

since

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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[]

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[City]

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[Herminghaus‟s alleged] unconstitutional...action and the basis

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for it.” Gillette v. Delmore, 972 F.2d 1342, 1346-47 (9th Cir.

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1992). Plaintiff may establish that the City is liable for his

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failure to train claim by demonstrating that the City‟s training

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of its officers was deliberately indifferent to Plaintiff‟s right

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not to be subjected to excessive force. Flores v. Cnty. of Los

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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.

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///

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

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For the reasons stated, the City Defendants prevail on

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their motions and Herminghaus‟ motion for summary judgment is

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GRANTED in part and DENIED in part.

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Dated:

November 14, 2014

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