Erausquin v. County of Contra Costa et al

Filing 31

ORDER by Judge William Alsup granting 20 Motion for Summary Judgment (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 2/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 12-0169 WHA (PR)
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
For the Northern District of California

United States District Court

GONZALO ERAUSQUIN,
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v.
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COUNTY OF CONTRA COSTA;
CONTRA COSTA SHERIFF
DEPARTMENT; OFFICER
MICHAEL RECTOR; OFFICER
CHRISTOPHER HAMBLIN;
SHERIFF DAVID LIVINGSTON;
DOES 1-30,

(Docket No. 20)

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Defendants.
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INTRODUCTION
Plaintiff filed this pro se civil rights action in state court claiming that Officers Michael

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Rector and Christopher Hamblin of the Contra Costa County Sheriff’s Department used

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excessive force while arresting him. Because the complaint contained federal claims under 42

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U.S.C. 1983, Rector, Hamblin, and defendants Sheriff David Livingston and the County of

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Contra Costa timely removed the case to federal court. See 28 U.S.C. 1441, 1367. Defendants

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filed a motion for summary judgment and served plaintiff with the warning about summary

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judgment motions required by Rand v. Rowland, 154 F.3d 952,953-954 (9th Cir. 1998) (en

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banc). Despite that warning, plaintiff did not file an opposition. Plaintiff has sent two letters to

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the court about his claims, which have been considered, and defendants filed a reply brief. For

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the reasons discussed below, the motion for summary judgment is GRANTED.

ANALYSIS

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A.

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STANDARD OF REVIEW
Summary judgment is proper where the pleadings, discovery and affidavits show that

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there is "no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute

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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a
verdict for the nonmoving party.

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For the Northern District of California

United States District Court

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The moving party for summary judgment bears the initial burden of identifying those

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

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issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving

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party has met this burden of production, the nonmoving party must go beyond the pleadings

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and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine

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issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue

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of material fact, the moving party wins. Ibid.

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B.

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ANALYSIS
The motion for summary judgment is unopposed. A district court may not grant a

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motion for summary judgment solely because the opposing party has failed to file an

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opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994) (unopposed

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motion may be granted only after court determines that there are no material issues of fact).

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The court may, however, grant an unopposed motion for summary judgment if the movant's

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papers are themselves sufficient to support the motion and do not on their face reveal a genuine

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issue of material fact. See Carmen v. San Francisco Unified School District, 237 F.3d 1026,

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1029 (9th Cir. 2001); see also North American Specialty Insurance Company v. Royal Surplus

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Lines Insurance Company, 541 f.3d 552, 558 (5th Cir. 2008) (if no factual showing is made in

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opposition to a motion for summary judgment, the district court is not required to search the

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record sua sponte for a triable issue of fact).

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The papers in support of the motion for summary judgment show that Rector and

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Hamblin are entitled to summary judgment. Defendants’ papers show that Officers Rector and

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Hamblin, found plaintiff in a parking lot at the scene of a burglary alarm and, while in uniform,

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ordered him to stop,, but got into a “box truck” and began to drive away (Rector Decl. ¶¶ 3-11;

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Hamblin Decl. ¶¶ 3-6). Rector jumped onto the truck’s running board and was thrown to the

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ground when plaintiff accelerated the truck in reverse (Rector Decl. ¶¶ 11-14). Plaintiff then

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drove the truck toward Rector, and Rector fired his gun at him (id. ¶¶ 15-16). Plaintiff then
drove the truck into the patrol car where Hamblin was in the driver seat, sending the car across

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For the Northern District of California

United States District Court

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the street into a hillside and crushing the driver door shut (id. ¶ 12; Rector Decl. ¶ 18). Hamblin

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got out of his car, and plaintiff backed the truck up and drove it towards Hamblin two times;

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after plaintiff ignored their orders to stop, the officers fired their guns at him (Hamblin Decl. ¶

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13; Rector Decl. ¶¶ 19-21). Hamblin then ran alongside the truck as it drove onto a street, and

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he fired more shots at plaintiff when plaintiff swerved the truck towards him and ignored further

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orders to stop (Hamblin Decl. ¶¶ 14-15; Rector Decl. ¶ 22). Plaintiff eventually stopped the

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truck and was arrested (Hamblin Decl. ¶ 16; Rector Decl. ¶ 23). Defendants do not dispute

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plaintiff’s allegations that he was shot nine times and suffered severe injuries. Plaintiff was

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convicted pursuant to his no contest plea to one count of attempted murder of Hamblin and one

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count of assault with a deadly weapon upon a peace officer (Rector) (Def. Req. Jud. Not. Exh.

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A).

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Because of his convictions, plaintiff’s claims that Hamblin and Rector used excessive

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force are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Heck bars plaintiffs from

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recovering damages on a claim whose success would call a state court conviction into question,

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unless that conviction has been overturned on appeal or otherwise invalidated. Ibid. Plaintiff’s

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convictions for attempted murder and assault of Hamblin and Rector are premised on the fact

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that he drove his truck at them, whereas his claims under Section 1983 are premised on his

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allegation that he did not drive his truck at them. The convictions also require that the officers

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were not using excessive force when plaintiff assaulted and attempted to murder them, see Beets

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v. County of Los Angeles, 669 F.3d 1038, 1045 (9th Cir. 2011); Cunningham v. Gates, 312 F.3d

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1148, 1154-55 (9th Cir. 2002), whereas his claims here require a finding that they did. Thus his

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claims, if successful, would call into question the validity of his convictions. Cf. ibid.

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Therefore, plaintiff’s claims under Section 1983 are barred until and unless his convictions have

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been overturned.

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In addition, under the circumstances set forth in defendants’ evidence, Rector and
Hamblin used a reasonable amount of force under the Fourth Amendment. Determining
whether the force used during the course of an arrest was reasonable under the Fourth

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For the Northern District of California

United States District Court

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Amendment includes examining "the severity of the of the crime at issue, whether the suspect

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poses an immediate threat to the safety of the officers or others, and whether he is actively

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resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 394-

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96 (1989). The use of deadly force is reasonable if the police officer has probable cause to

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believe that the suspect poses a significant threat of death or serious physical injury to the

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officer or others. Tennessee v. Garner, 471 U.S. 1, 3 (1985). Under the circumstances

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described in defendants’ evidence, Rector and Hamblin shot at plaintiff only when he

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threatened their lives by driving his truck directly towards them after repeatedly disobeying

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their orders to stop: plaintiff drove his truck at Rector after he had fallen to the ground, and

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plaintiff crashed his truck into the patrol car with Hamblin in it and then twice backed up and

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drove the truck at Hamblin. They were justified under the Fourth Amendment in using deadly

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force under these circumstances in order to stop plaintiff who was threatening their lives and

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ignoring their orders to stop. To the extent that the officers’ conduct was reasonable under the

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Fourth Amendment, moreover, the Sheriff and Contra Costa County are also not liable under

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Section 1983 for plaintiff’s injuries.

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As noted, plaintiff did not file an opposition or any evidence in opposition to the
summary judgment motion. In his complaint and two letters he sent to the court following
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defendants’ motion (dkt. 27 and 30), he alleges that he was trying to drive his truck away from

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Rector and Hamblin not towards them, although he concedes that he drove the truck into the

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patrol car where Hamblin was seated and did not obey their orders to stop. Neither the

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complaint nor the letters are verified, however, and as such they cannot be treated as sworn

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affidavits, nor can the facts alleged therein be considered evidence opposing summary

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judgment. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). Even if

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plaintiff had submitted a sworn affidavit or other evidence supporting his account, moreover,

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his claims would still be barred by Heck, as discussed above.

are entitled to summary judgment on plaintiff’s claims under Section 1983. Plaintiff’s claims

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For the Northern District of California

Based on defendants’ evidence, there is no genuine issue of material fact Defendants’

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United States District Court

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under state law are dismissed without prejudice to bringing them in state court. See 28 U.S.C. §

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1367(c).

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CONCLUSION

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The motion for summary judgment (dkt. 20) is GRANTED. The clerk shall enter

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judgment and close the file.
IT IS SO ORDERED.

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Dated: February
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13 , 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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