Beckway v. DeShong et al

Filing 173

ORDER by Judge Thelton E. Henderson granting in part and denying in part 149 Motion for Summary Judgment; denying 152 Motion for Summary Judgment (tehlc2, COURT STAFF) (Filed on 4/7/2011).

Beckway v. DeShong et al

Doc. 173

1 2 3 4 5 6 7 8 9 10 v.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRENT BECKWAY, Plaintiff, NO. C07-5072 TEH ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

DEPUTY PAUL DESHONG, et al., Defendants.

United States District Court

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For the Northern District of California

This matter came before the Court on April 4, 2011, on motions for summary

12 judgment filed by Defendant Deputy Paul DeShong ("DeShong") and Defendants Deputy 13 Richard Ward ("Ward"), Sheriff Rodney Mitchell ("Mitchell"), the County of Lake, and the 14 County of Lake Sheriff's Department (collectively, "Defendants"). For the reasons set forth 15 below, Defendants' motions are GRANTED IN PART and DENIED IN PART. 16 17 BACKGROUND 18 This lawsuit arises from the October 27, 2006 arrest of Plaintiff Brent Beckway

19 ("Beckway" or "Plaintiff") by defendants Ward and DeShong, deputies with the County of 20 Lake Sheriff's Department.1 Ward and DeShong went to Beckway's home to investigate a 21 report of an altercation between Beckway and Beckway's neighbor, Harold Keats ("Keats"). 22 The parties dispute the events of that evening. Beckway contends that he was talking to the 23 officers on his porch when one of the officers said that a witness had seen Beckway hit 24 Keats, and that the officers were going to have to place Beckway under arrest. Beckway 25 asked, "Why is that?" As soon as he uttered the words, Beckway says he was thrown down, 26
1 Defendants submitted objections to some of Beckway's evidence along with a 27 motion to strike this evidence from the record. The Court does not rely upon the challenged evidence in deciding these motions, and it therefore does not rule on the objections or the 28 motion to strike.

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1 face first with his arms pinned under his body. Beckway claims that he never resisted the 2 officers. While on the ground, he says he felt a heavy blow to the back of his left leg. 3 Beckway's left leg sustained an injury that later required surgery. Beckway Depo. 93-94. He 4 now has steel screws in his leg. Id. at 94:8. 5 Defendants offer evidence that Beckway did resist them when they attempted to arrest

6 him for assault. DeShong says that when he moved to take hold of one of Beckway's arms, 7 Beckway pulled away and turned slightly. DeShong says that he turned with Beckway, and 8 both men lost their balance, falling to the porch floor. DeShong denies using any force 9 against Beckway ­ he didn't push Beckway to the ground, he says, and he did not kick 10 Beckway after he had fallen. DeShong fell on top of Beckway after Beckway lost his

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11 balance, according to the officer. When Beckway was helped to his feet, he complained of
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12 pain in his leg. 13 On October 27, 2009, Beckway pleaded nolo contendere, or no contest, to a charge of

14 resisting an officer's lawful conduct under Cal. Pen. Code section 148(a)(1). Beckway 15 brought this lawsuit on October 2, 2007, alleging excessive use of force and false arrest 16 under 42 U.S.C. section 1983, as well as state law claims for battery, negligence, negligent 17 infliction of emotional distress, and intentional infliction of emotional distress.2 He alleges 18 that Ward and DeShong applied excessive force and seriously injured his left knee. 19 Defendants moved for summary judgment on February 4, 2011, and February 7, 2011. In his 20 opposition papers, Beckway failed to cite evidence in the record. On March 8, 2011, the 21 Court granted Beckway additional time to point to evidence in the record in opposition to 22 Defendants' motions. Beckway responded on March 15, 2011, and the Court finds that the 23 document he filed complies with the Court's March 8, 2011 order.3 24 25 26
2 3

The Court dismissed Beckway's false arrest claim in an order dated May 12, 2010.

Beckway also filed a "Notice of Additional Authority" on March 4, 2011. The document lists several cases, none of which appear to affect the Court's analysis. Because 27 these cases were not cited in Beckway's opposition brief or his supplemental brief, see Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988), the Court will not consider 28 them. 2

1 LEGAL STANDARD 2 Summary judgment is appropriate when there is no genuine dispute as to material

3 facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 4 Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is 6 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The 7 Court may not weigh the evidence and must view the evidence in the light most favorable to 8 the nonmoving party. Id. at 255. The Court's inquiry is "whether the evidence presents a 9 sufficient disagreement to require submission to a jury or whether it is so one-sided that one 10 party must prevail as a matter of law." Id. at 251-52.

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A party seeking summary judgment bears the initial burden of informing the Court of

12 the basis for its motion, and of identifying those portions of the pleadings and discovery 13 responses that "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. 14 Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at 15 trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than 16 for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 17 However, on an issue for which its opponents will have the burden of proof at trial, the 18 moving party can prevail merely by "pointing out ... that there is an absence of evidence to 19 support the nonmoving party's case." Celotex, 477 U.S. at 325. If the moving party meets its 20 initial burden, the opposing party must "set out specific facts showing a genuine issue for 21 trial" to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256. 22 23 DISCUSSION 24 Defendants move for summary judgment on Beckway's excessive force claim under

25 42 U.S.C. section 1983 ("section 1983"), arguing that success on that claim would 26 necessarily imply the invalidity of Beckway's conviction under California Penal Code 27 section 148(a)(1), and this claim is therefore barred by Heck v. Humphrey, 512 U.S. 477 28 (1994). On the same ground, Defendants move for summary judgment on Beckway's state 3

1 law claims for battery, negligence, negligent infliction of emotional distress, and intentional 2 infliction of emotional distress. 3 DeShong also argues that summary judgment should be granted as to Beckway's

4 section 1983 claim for excessive force because no jury could find that the force he used was 5 unreasonable. Mitchell, the County of Lake, and the County of Lake Sheriff's Department 6 also move for summary judgment on this claim. 7 8 I. Whether Beckway's Section 1983 Claim Is Barred by Heck v. Humphrey 9 In Heck v. Humphrey, the Supreme Court held that a plaintiff cannot bring a section

10 1983 action that calls into question the lawfulness of a criminal conviction. This Court has

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11 twice issued orders finding that Beckway's claims are not barred by Heck. Several of the
For the Northern District of California

12 parties' arguments re-hash those already considered by this Court. The only new question 13 before the Court is whether, in light of the evidence, Beckway's section 1983 claim 14 necessarily calls into question the lawfulness of Beckway's conviction for resisting arrest 15 under California Penal Code section 148(a)(1) ("section 148(a)(1)"). 16 Defendants cite Hooper v. County of San Diego, 629 F.3d 1127 (9th Cir. 2011), in

17 support of their argument that Beckway's section 1983 claim is barred by Heck. In Hooper, 18 the Ninth Circuit held that the viability of a plaintiff's section 1983 excessive force claim 19 does not depend upon the timing of a plaintiff's resistance relative to her arrest. 629 F.3d at 20 1131-32. In other words, challenging an officer's use of force during or after an arrest does 21 not necessarily imply that all of the actions taken by the officer to effectuate that arrest were 22 unlawful. If it did, that challenge would be incompatible with a section 148(a)(1) conviction, 23 which makes it illegal for a defendant to have "`resist[ed], delay[ed], or obstruct[ed]' a police 24 officer in the lawful exercise of his or her duties." Id. at 1130 (citing Cal. Pen. Code § 25 148(a)(1)) (alteration in Hooper). The Hooper panel held that 26 27 28 4 [i]t is sufficient for a valid conviction under § 148(a)(1) that at some time during a "continuous transaction" an individual resisted, delayed, or obstructed an officer when the officer was acting lawfully. It does not matter that the officer might also, at

1 2 Id. at 1132. 3

some other time during that same "continuous transaction," have acted unlawfully.

The plaintiff in Hooper pled guilty to resisting a peace officer under section 148(a)(1) 4 after struggling against officers attempting to arrest her for possession of methamphetamine. 5 629 F.3d at 1129. Once the plaintiff was on the ground and had her hands behind her back, 6 she stopped struggling. Id. Thereafter, one of the arresting officers summoned his German 7 Shepherd, and the dog attacked the plaintiff's head. Id. The Ninth Circuit held that the 8 plaintiff in Hooper had a viable section 1983 claim even though the alleged excessive force 9 took place at the time of her arrest. Id. at 1134. 10 Defendants argue that the reasoning in Hooper requires the Court to find that 11
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Beckway's section 1983 claim is barred by Heck. The Court disagrees. Beckway contends 12 that the officers threw him down, face first, on his arms. Once he was on the ground, he says 13 that one of the officers stomped on the back of his leg. Just as the court in Hooper found that 14 it was possible for the plaintiff to challenge the dog attack as unreasonable in light of her 15 resistance, here it is possible for Beckway to challenge the force used against him as beyond 16 what was reasonable under the circumstances. DeShong would read into Hooper a temporal 17 analysis, arguing that the plaintiff's resistance in Hooper amounted to "a series of 18 transactions which could have justified the plaintiff's conviction" for resisting arrest. 19 DeShong Mot. At 7:20-21. However, Hooper specifically characterized the plaintiff's 20 resistance as "one continuous transaction." Hooper, 629 F.3d at 1133. DeShong's attempt to 21 distinguish Hooper on the grounds that it involved a series of transactions is therefore 22 unavailing. 23 Defendants also argue that because Beckway contends that he never resisted the 24 officers, his section 1983 claim is barred by Heck. They cite language in Hooper stating that 25 "to `the extent that [a plaintiff's section 1983 claim] alleges that he offered no resistance, that 26 he posed no reasonable threat of obstruction to the officers, and that the officers had no 27 justification to employ any force against him at the time he was shot," the claim is barred by 28 5

1 Heck.4 Hooper, 629 F.3d at 1132 (citing Yount v. City of Sacramento, 43 Cal. 4th 885, 898, 2 76 Cal. Rptr. 3d 787, 183 P.3d 471) (emphasis in Hooper). The Hooper court pointed out that 3 the plaintiff there did "not dispute the lawfulness or her arrest, nor [did] she dispute that she 4 was arrested." Id. at 1129. Here Beckway does aver, both in the General Allegations section 5 of the Complaint and in sworn testimony, that he offered no resistance to the deputies, and 6 that the deputies were not justified in their use of force against him. However, Defendants 7 ignore the fact that these allegations would not necessarily be proven if Beckway were to 8 prevail in his section 1983 claim for excessive force. What would necessarily be proven if 9 Beckway were to prevail in his section 1983 claim is that "some of the officer's conduct was 10 unlawful" relative to the resistance proven in Beckway's section 148(a)(1) conviction. Id. at

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11 1131. A court has already found that Beckway resisted the officers.5 Beckway's statements to
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12 the contrary fail to challenge that finding, and do not necessarily form the basis for his 13 section 1983 claim. Beckway's section 1983 claim rests upon whether, in light of the facts 14 established by his conviction, the officers used excessive force against him. Defendants have 15 failed to cite any authority that would conclusively establish that a kick to the back of the leg 16 of a person face down on the ground does not, as a matter of law, amount to excessive force. 17 Nor do they cite authority establishing that such force, if used, was reasonable in light of 18 Beckway's resistance. Beckway's conviction establishes that some aspect of the officers' 19 response to Beckway's resistance was reasonable and lawful, but as the Court in Hooper 20 explained, an officer's conduct can become unlawful during the "same `continuous 21 transaction.'" Hooper, 629 F.3d at 1132. The officers were authorized to use reasonable 22 Defendants also generally invoke Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 23 2005), in support of the rule that a Defendant must identify the resistance that forms the basis for a resisting arrest conviction in order to proceed with a section 1983 claim for excessive 24 force. Defendants provide no citation to Smith that would support such a rule, and even if Smith did support such a rule, that rule does not appear to survive the determination in 25 Hooper that Smith was based upon an incorrect understanding of section 148(a)(1). See Hooper, 629 F.3d at 1131-32. 26 5 These motions do not present evidence establishing the amount of resistance proven 27 by Beckway's section 148(a)(1) conviction. Because Beckway's section 1983 claim cannot rest upon allegations that Beckway offered no resistance, the jury will have to be instructed 28 as to what has been proven regarding Beckway's resistance to Ward and DeShong. 6
4

1 force, but the question here is whether some of the force they used was unreasonable. A 2 reasonable jury could conclude that the force used against Beckway was unreasonable in 3 light of the resistance that forms the basis for Beckway's section 148(a)(1) conviction. 4 Therefore, Defendants' motions for summary judgment as to Beckway's section 1983 claim 5 are DENIED. 6 7 II. Whether Beckway's State Claims Are Also Barred by Beckway's Conviction 8 Defendants argue that Beckway's second claim for battery, fourth claim for

9 negligence, fifth claim for intentional infliction of emotional distress, and sixth claim for 10 negligent infliction of emotional distress are barred by Yount. In Yount, the California

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11 Supreme Court held that the rule of Heck bars state claims that necessarily call into question
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12 the lawfulness of a plaintiff's conviction. Yount, 43 Cal. 4th at 902. 13 A battery claim was at issue in Yount. The court noted that the plaintiff's common law

14 battery claim, like his section 1983 claim, required proof that the officer used unreasonable 15 force. Id. DeShong, against whom Beckway's battery claim is pleaded, argues that because 16 Beckway has stated that he never resisted, his battery claim is directly inconsistent with his 17 criminal conviction. DeShong ignores the fact that Beckway's battery claim acknowledges 18 that DeShong and Ward were "arrest[ing], detain[ing] and/or overcom[ing] resistance of 19 plaintiff when they grabbed plaintiff Beckway, forced him to the ground and jumped on the 20 back of plaintiff's legs." Complaint ¶ 50. Thus by the terms of the battery claim, Beckway 21 appears to concede some resistance. Even if he had not, however, the question here is 22 whether, in light of the resistance proven by Beckway's criminal conviction, a portion of the 23 force used by Defendants was unreasonable. Beckway's subjective belief that he did not 24 resist the officers would not necessarily be proven if he were to prevail in his battery claim. 25 Therefore, DeShong's motion for summary judgment with respect to Plaintiff's battery claim 26 is DENIED. 27 Defendants rely upon the same argument ­ that Beckway denies resisting the officers

28 and thus Heck should bar his claims ­ in challenging Beckway's negligence, intentional 7

1 infliction of emotional distress, and negligent infliction of emotional distress claims. Because 2 Defendants have not shown that these claims are inconsistent with the facts proven in 3 Beckway's criminal conviction, Defendants' motions for summary judgment as to these 4 claims are also DENIED. 5 6 III. Whether a Jury Could Find that the Force Used Was Unreasonable 7 DeShong argues that he is entitled to summary judgment because no jury could find

8 that the force he used against Beckway was unreasonable under the circumstances. The Court 9 disagrees. 10 The Fourth Amendment "guarantees citizens the right `to be secure in their persons . .

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11 . against unreasonable . . . seizures' of the person." Graham v. Connor, 490 U.S. 386, 394,
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12 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "The `reasonableness' of a particular use of force 13 must be judged from the perspective of a reasonable officer on the scene, rather than with the 14 20/20 vision of hindsight." Id. at 396. 15 16 17 18 19 20 21 22 23 Hayes v. Cnty. of San Diego, --- F.3d ---- , 2011 WL 982472, at *7 (9th Cir. Mar. 22, 2011). 24 DeShong argues that his own statements that he used no force against Beckway 25 foreclose Beckway's excessive force claim. He points to his deposition testimony in which 26 he states that he was not acting upon Beckway when Beckway fell, but that Beckway lost his 27 balance. He denies kicking Beckway in the leg. 28 8 To do so, a court must pay "careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Id. We also consider, under the totality of the circumstances, the "quantum of force" used, Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007), the availability of less severe alternatives, id. at 1054, and the suspect's mental and emotional state, see Deorle v. Rutherford, 272 F.3d 1272, 1282 (9th Cir. 2001). All determinations of unreasonable force, however, "must embody allowance for the fact that police officers are often forced to make split-second judgments ­ in circumstances that are tense, uncertain, and rapidly evolving ­ about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97.

1

Beckway tells a different story in his deposition. He says he "was thrown down" to

2 the ground. Beckway Depo. 74:4. At his deposition, Beckway could not remember if one 3 officer or two threw him to the porch, but this does not negate Beckway's allegation that one 4 of them threw him. Furthermore, the fact that Beckway did not describe in detail the way in 5 which he was thrown, or the way in which he landed, does not discount the fact that 6 Beckway's account raises a triable question of fact for the jury. Beckway states that someone 7 pushed him; DeShong that Beckway fell under his own weight. When viewed in the light 8 most favorable to Beckway, Beckway's account raises an inference that he did not fall, but 9 that he was pushed. It also raises a triable issue of fact as to whether DeShong was the one 10 who pushed him.

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While on the ground, Beckway says he "felt a heavy blow to the back of [his] leg." Id.

12 at 75:15-16. He later characterized the blow as a "stomp." Id. at 81:21. This raises a triable 13 issue of fact as to whether he did receive such a blow, and whether DeShong delivered it. 14 DeShong seems to argue that his testimony that he never applied force to Beckway 15 forecloses the question of whether Beckway was stomped. DeShong would have the Court 16 evaluate the probative value of Beckway's statement in light of his own, but the Court's 17 inquiry on summary judgment is limited to whether Beckway has offered enough evidence of 18 excessive force to raise a triable issue of fact for the jury at trial. He has done so.6 19 Accordingly, DeShong's motion for summary judgment as to Beckway's excessive force 20 claim is DENIED. 21 22 IV. Beckway's Section 1983 Claim Against the County of Lake Sheriff's Department 23 Defendants argue that the County of Lake Sheriff's Department is not a proper 24 defendant in a section 1983 claim. Section 1983 imposes liability on "[e]very person" who 25 acts under the color of law to deprive another person of rights, privileges, or immunities 26 27 Beckway cites to other portions of the record, but his account of the events of his 28 arrest are sufficient to withstand the motion for summary judgment. 9
6

1 secured by the Constitution and laws. 42 U.S.C. § 1983. Defendants argue that the County of 2 Lake Sheriff's Department is not a "person" under the statute, and therefore cannot be liable. 3 "The term `persons' encompasses state and local officials sued in their individual capacities, 4 private individuals and entities which acted under color of state law, and local governmental 5 entities. Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). 6 "However, the term `persons' does not encompass municipal departments." Id. at 996. 7 Having been presented with no argument or authority from Beckway challenging the rule 8 that municipal departments are not proper defendants in section 1983 cases, the Court finds 9 no reason to disagree with the district court in Vance. Defendants' motion for summary 10 judgment as to Beckway's section 1983 claim against the County of Lake Sheriff's

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11 Department is therefore GRANTED.
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12 13 V. Beckway's Section 1983 Claims Against the County of Lake and Sheriff Mitchell 14 Based upon Plaintiff's representations to the Court that discovery is not complete

15 regarding the alleged conduct of the County of Lake and Sheriff Mitchell, the Court finds 16 that Defendants' summary judgment motions with respect to these issues are premature. 17 Even so, this case is progressing far too slowly. Accordingly, all discovery, except for 18 depositions of expert witnesses, shall be completed no later than sixty (60) days from the 19 date of this order. Unless otherwise ordered by the Court, all discovery matters are hereby 20 referred for assignment to a magistrate judge. Please call the Courtroom Deputy at (415) 52221 2047 to obtain a random assignment to a specific Magistrate Judge before filing any papers 22 relating to discovery. 23 If for any legitimate reason a party is unable to finish discovery by the deadline, that

24 party must include in its motion to extend the discovery cutoff a detailed explanation of the 25 actions it took, starting today, to complete discovery. If the Court finds that any party did not 26 immediately undertake efforts to complete discovery, the discovery sought by that party will 27 be waived. 28 10

1 CONCLUSION 2 For the reasons set forth above, Defendants' motions for summary judgment are

3 GRANTED IN PART and DENIED IN PART. Summary judgment is GRANTED as to 4 Beckway's section 1983 claim against the County of Lake Sheriff's Department. Summary 5 judgment is DENIED as to Beckway's state law claims and his section 1983 claim against 6 the County of Lake, Sheriff Mitchell, and Deputies DeShong and Ward. 7 8 IT IS SO ORDERED. 9 10 Dated: 4/7/11 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

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