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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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 PATRICK WAYNE SOLOMON, an individual, Plaintiff, 9 12 13 14 15 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, 16 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. 10 11 No. Defendants. 17 Defendants City of South Lake Tahoe, the City of South 18 19 Lake 20 Herminghaus (“Herminghaus”) (collectively the “Defendants”) move 21 for 22 adjudication of the issues, under Federal Rule of Civil Procedure 23 (“Rule”) 56(c). (Mot. Summary Judgment (“Mot.”), ECF No. 43.) 24 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, 28 customs and practices; and failure to train. (Compl., ECF No. 1.) 1 1 I. Legal Standard 2 The movant for summary judgment must establish “that 3 there is no genuine dispute as to any material fact and the 4 movant is entitled to judgment as a matter of law.” Rule 56(a). 5 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. 2 24 25 26 27 28 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. 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 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 28 (“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. 3 1 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]. . . 4 I just had an inmate, Patrick Solomon, come up and start pushing 5 me. I was wondering maybe you could send a car over.” (9-1-1 6 Recording (“911 Tr.”) 1:3-7, ECF No. 45-4; Pina Dep. Tr. 40:22- 7 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. 12 45-6.) Dispatch also provided Herminghaus a description of the 13 suspect: “It‟s Patrick Solomon. . . WMA, gray hair wearing a 14 green long-sleeved shirt and . . . black pants and he went back 15 inside the store.” (Dispatch Tr. 1:6-8.) 16 After arriving at the Raley‟s grocery store, 17 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. 19 63:12-64:23.) Pina identified Plaintiff to Herminghaus and then 20 Herminghaus told Plaintiff he was under arrest. (Solomon Dep. Tr. 21 32:4-9; Pina Dep. Tr. 71:1-15; 73:14-16; Herminghaus Dep. Tr. 22 31:18-22.) When Herminghaus approached Plaintiff, Plaintiff was 23 standing in one of the grocery aisles wearing a long-sleeved 24 green shirt and black pants. (DVD Videos of Incident (“Video 2”) 25 15:51:10.20, ECF No. 43-52.) 26 2 27 28 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; 3 Video 2 15:51:16.87-15:51:42.24.) Herminghaus applied force to 4 Plaintiff‟s backside and Plaintiff came into contact with store 5 shelving, hitting shelving on both sides of the aisle. (Solomon 6 Dep. Tr. 41:1-2; 41:23-25-42:1; 42:16-22; Pina Trial Tr. 21:10- 7 24; 8 15:51:49.44.) When Herminghaus was moving with Plaintiff towards 9 a store exit, Herminghaus took Plaintiff to the ground, face 10 down. (Solomon Dep. Tr. 56:5-10; Herminghaus Dep. Tr. 37:18-25; 11 Video 3 15:51:53.66-15:52:20.89.) Herminghaus Dep. Tr. 36:15-37:10; Video 2 15:51:42.24- 12 Plaintiff was taken to the hospital where he received 13 care for “2 lac[erations] to [the] forehead.” (Solomon Emergency 14 Room Records (“ER Records”), ECF No. 45-7.) 15 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.) 19 Herminghaus also testified that he is not aware of any internal 20 investigation regarding the arrest “other than the reports that 21 have 22 incident. 23 subsequently prosecuted and Herminghaus spoke to the prosecution 24 and Pina regarding the grocery store incident. (Herminghaus Dep. 25 Tr. 51:13-52:1.) 26 /// 27 /// 28 /// 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 3 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 25 v. Shockley, 58 Cal.4th 400, 404 (2013) (quoting 1 Witkin & 26 Epstein, Cal. Crim. Law (4th ed. 2012) Crimes Against the Person, 27 § 13, p. 804). 28 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, 28 263 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 21 22 23 24 25 26 27 28 12

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