Andrews v. City of Berkeley et al

Filing 74

Order by Magistrate Judge Laurel Beeler granting 62 Motion for Summary Judgment.(lblc1S, COURT STAFF) (Filed on 6/12/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
BRYAN ANDREWS,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 12-04614 LB
Plaintiff,

ORDER GRANTING DEFENDANTS’
SUMMARY JUDGMENT MOTION

v.
[ECF No. 62]

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CITY OF BERKELEY, et al.,

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Defendants.
_____________________________________/

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INTRODUCTION
Mr. Andrews, with the assistance of counsel, sued Berkeley police officers in this 42 U.S.C.

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§ 1983 action for wrongful arrest and excessive force in violation of the Fourth Amendment. See

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Complaint, ECF No. 20. He now represents himself. See 3/6/13 Order, ECF No. 19. The claim

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stems from his encounter with the police on September 2, 2010, after he called 911, saying that he

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was being robbed, and thereafter was placed into protective custody under California Welfare and

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Institutions Code section 5150. Defendants move for summary judgment and served Mr. Andrews.

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Despite being advised of the requirements for a summary judgment motion, and – in several

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previous orders to show cause – of the consequences of not prosecuting his case, see, e.g., ECF Nos.

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37, 43, 54, 59, and 60, Mr. Andrews has not opposed the summary judgment motion. Pursuant to

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Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument

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and vacates the June 18, 2014 hearing. For the reasons discussed below, the court grants the motion
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ORDER

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for summary judgment.

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ANALYSIS
I. LEGAL STANDARD

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The court must grant a motion for summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of

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law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material

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facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about

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a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

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the non-moving party. Id. at 248-49.

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The party moving for summary judgment bears the initial burden of informing the court of the
basis for the motion, and identifying portions of the pleadings, depositions, answers to

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For the Northern District of California

UNITED STATES DISTRICT COURT

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interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material

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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party

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must either produce evidence negating an essential element of the nonmoving party’s claim or

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defense or show that the nonmoving party does not have enough evidence of an essential element to

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carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

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Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076

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(9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving party need

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only point out ‘that there is an absence of evidence to support the nonmoving party’s case.’”)

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(quoting Celotex, 477 U.S. at 325).

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If the moving party meets its initial burden, the burden shifts to the non-moving party to produce

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evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d at 1103.

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The non-moving party may not rest upon mere allegations or denials of the adverse party’s evidence,

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but instead must produce admissible evidence that shows there is a genuine issue of material fact for

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trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show

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a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477

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U.S. at 323.

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In ruling on a motion for summary judgment, inferences drawn from the underlying facts are
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ORDER

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viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 587 (1986).

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II. PLAINTIFF’S SECTION 1983 CLAIM

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

Siegel, 26 F.3d 1488, 1494–95, n.4 (9th Cir. 1994) (unopposed motion may be granted only

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after court determines that there are no material issues of fact). The court may, however, grant an

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unopposed motion for summary judgment if the movant's papers are themselves sufficient to support

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the motion and do not on their face reveal a genuine issue of material fact. See United States v. Real

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Property at Incline Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule cannot mandate automatic

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entry of judgment for moving party without consideration of whether motion and supporting papers

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For the Northern District of California

summary judgment solely because the opposing party has failed to file an opposition. Cristobal v.

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UNITED STATES DISTRICT COURT

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satisfy Fed. R. Civ. P. 56), rev'd on other grounds sub nom. Degen v. United States, 517 U.S. 820

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(1996).

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To state a claim under § 1983, a plaintiff must allege: (1) the conduct complained of was

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committed by a person acting under color of state law; and (2) the conduct violated a right secured

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by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988). It is

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undisputed that the police officers were acting under color of state law, and Mr. Andrews’s claim is

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that the officers violated his Fourth Amendment right to be free from unreasonable searches and

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seizures and excessive force under the Fourth Amendment.. Thus, the issue before the court is

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whether the force used during his seizure was “objectively reasonable.” Arpin v. Santa Clara Valley

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Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001) (citing Graham v. Connor, 490 U.S. 386, 388

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(1989)).

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“Determining whether the force used to effect a particular seizure is reasonable under the Fourth

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Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s

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Fourth Amendment interests against the countervailing governmental interests at stake.” Graham,

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490 U.S. at 396 (internal citations and quotations omitted). To do so, a court must evaluate “the

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facts and circumstances of each particular case, including [(1)] the severity of the crime at issue,

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[(2)] whether the suspect poses an immediate threat to the safety of the officers or others, and [(3)]
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whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Tennessee

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v. Garner, 471 U.S. 1, 8-9 (1985)).

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The papers in support of the motion for summary judgment show that the Berkeley police acted

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appropriately when taking Mr. Andrews into protective custody and used a reasonable amount of

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force under the Fourth Amendment. Mr. Andrews called 911, saying that he was being robbed near

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Blondie’s Pizza in Berkeley. Police officers responded, but Mr. Andrews spoke in a confused,

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unintelligible, and delusional manner, and he was sweating profusely even though it was about 60

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degrees outside. Officers determined that he should be taken into protective custody, and he tried to

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run. Thereafter, officers took him to the ground, handcuffed him, and transported him to the

restrain him with a protective WRAP. See Orebic Decl. ¶ 2, Ex. A (911 calls); Jung Decl. ¶¶ 4-11;

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For the Northern District of California

hospital. No one struck Mr. Andrews at any time, but because he continued to resist, they had to

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UNITED STATES DISTRICT COURT

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Lathrop Decl. ¶ 7. There are poorly-lit videos of the incident from a bystander’s cell phone. Orebic

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Decl. Ex. E (the videos). The officers sound calm and there is no suggestion of unreasonable force.

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During his deposition, Mr. Andrews confirmed that it was his voice on the 911 call. He has no

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recollection of calling 911, the alleged robbery, talking with the officers, or resisting them. Andrews

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Dep., Orebic Decl. Ex. B at 57-61, 69. He testified that during the two-hour period before the

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incident, he consumed four drinks of hard alcohol of two to four ounces of alcohol each, smoked

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marijuana, and might have smoked cocaine mixed in with the marijuana since he did not roll the

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“blunt” himself. Id. at 31, 40, 42, 102-03

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The hospital records (which Defendants submitted with the appropriate custodial declarations)

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show that when he arrived at Alta Bates, Mr. Andrews was “disoriented or irrational” and

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“aggressive or violent” such that he was placing himself or others in danger. Orebic Decl. Ex. C-1.

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He was restrained and held in protective custody under Welfare and Institutions Code section 5150.

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He could not follow verbal directions. Id. He was transferred to Kaiser, where he was diagnosed

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with acute cocaine intoxication and being in an agitated delirium and admitted to the hospital for the

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condition, which apparently caused acute kidney failure. Orebic Decl. Ex. C-2. The chart says that

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he told the doctor the next day that he snorts cocaine, and the doctor explained that the patient

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became “agitated with delusions and paranoia when intoxicated with cocaine.” Id. Plaintiff
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admitted that he “can’t recall details of what happened last night.” Id. The doctor lifted the 5150

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hold and explained the risks of cocaine including renal failure. Id. Defendants point out that the

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same thing happened two years later, when Mr. Andrews was again taken into protective custody

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and admitted to the hospital with acute cocaine intoxication and delirium, and it took six days to

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stabilize him. Orebic Decl. Ex. D; Jung Decl. ¶ 6.

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Plaintiff contends that the handcuffs caused cuts and abrasions on his wrists, but he admits that

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he does not know if he was injured from forcefully pulling on the handcuffs when cuffed to a gurney

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at the hospital. Andrews Dep., Orebic Decl. Ex. B at 74, 78.

protective custody. Indeed, as the Berkeley City Attorney remarked at a hearing, it is likely that by

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doing so, they saved Mr. Andrews’s life. Moreover, given Mr. Andrews’s struggling to get away,

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For the Northern District of California

Under the totality of the circumstances, the police had probable cause to take Andrews into

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UNITED STATES DISTRICT COURT

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the force used was reasonable.

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Mr. Andrews also claims in the complaint that the force was excessive in violation of the 14th

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Amendment. The Fourteenth Amendment’s substantive due process clause protects against the

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arbitrary or oppressive exercise of government power. See County of Sacramento v. Lewis, 523 U.S.

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833, 845-46 (1998). “[T]he Due Process Clause is violated by executive action only when it can be

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properly characterized as arbitrary, or conscience shocking, in a constitutional sense.” Id. at 845-47;

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see Lemire v. Cal. Dept. Of Corrections & Rehabilitation, 726 F.3d 1062, 1075 (9th Cir. 2013). The

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cognizable level of executive abuse of power is that which “shocks the conscience” or “violates the

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decencies of civilized conduct.” Lewis, 523 U.S. at 846. Mere negligence or liability grounded in

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tort does not meet the standard for a substantive due process decision. Id. at 849. Where a law

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enforcement officer makes a snap judgment because of an escalating situation, his conduct may be

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found to shock the conscience only if he acts with a purpose to harm unrelated to legitimate law

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enforcement objectives.” Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013) (citing

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Wilkinson, 610 F.3d at 554). The summary judgment papers establish that the police officers’

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conduct did not violate the Fourteenth Amendment.

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Finally, the complaint also alleges an Equal Protection violation. There is no evidence of any

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discrimination against Mr. Andrews. See City of Cleburne v.Cleburne Living Center, 473 U.S. 432,
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439 (Equal Protection Clause requires that “all persons similarly situated should be treated alike”).

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In sum, Defendants’ unopposed summary judgment papers establish that they did not violate Mr.

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Andrews’s rights, and there is no genuine issue of material fact evident from the papers or the record

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otherwise before the court.

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CONCLUSION
The court grants Defendants’ motion for summary judgment.
This disposes of ECF No. 62. The clerk of the court shall close the file.
IT IS SO ORDERED.
Dated: June 12, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 12-04614 LB
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