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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division BRYAN ANDREWS, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 No. C 12-04614 LB Plaintiff, ORDER GRANTING DEFENDANTS’ SUMMARY JUDGMENT MOTION v. [ECF No. 62] 14 CITY OF BERKELEY, et al., 15 Defendants. _____________________________________/ 16 17 18 INTRODUCTION Mr. Andrews, with the assistance of counsel, sued Berkeley police officers in this 42 U.S.C. 19 § 1983 action for wrongful arrest and excessive force in violation of the Fourth Amendment. See 20 Complaint, ECF No. 20. He now represents himself. See 3/6/13 Order, ECF No. 19. The claim 21 stems from his encounter with the police on September 2, 2010, after he called 911, saying that he 22 was being robbed, and thereafter was placed into protective custody under California Welfare and 23 Institutions Code section 5150. Defendants move for summary judgment and served Mr. Andrews. 24 Despite being advised of the requirements for a summary judgment motion, and – in several 25 previous orders to show cause – of the consequences of not prosecuting his case, see, e.g., ECF Nos. 26 37, 43, 54, 59, and 60, Mr. Andrews has not opposed the summary judgment motion. Pursuant to 27 Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument 28 and vacates the June 18, 2014 hearing. For the reasons discussed below, the court grants the motion C 12-04614 LB ORDER 1 for summary judgment. 2 3 ANALYSIS I. LEGAL STANDARD 4 The court must grant a motion for summary judgment if the movant shows that there is no 5 genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of 6 law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material 7 facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about 8 a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 9 the non-moving party. Id. at 248-49. 10 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 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material 13 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party 14 must either produce evidence negating an essential element of the nonmoving party’s claim or 15 defense or show that the nonmoving party does not have enough evidence of an essential element to 16 carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz 17 Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 18 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving party need 19 only point out ‘that there is an absence of evidence to support the nonmoving party’s case.’”) 20 (quoting Celotex, 477 U.S. at 325). 21 If the moving party meets its initial burden, the burden shifts to the non-moving party to produce 22 evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d at 1103. 23 The non-moving party may not rest upon mere allegations or denials of the adverse party’s evidence, 24 but instead must produce admissible evidence that shows there is a genuine issue of material fact for 25 trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show 26 a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 27 U.S. at 323. 28 In ruling on a motion for summary judgment, inferences drawn from the underlying facts are C 12-04614 LB ORDER 2 1 viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith 2 Radio Corp., 475 U.S. 574, 587 (1986). 3 II. PLAINTIFF’S SECTION 1983 CLAIM 4 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 7 after court determines that there are no material issues of fact). The court may, however, grant an 8 unopposed motion for summary judgment if the movant's papers are themselves sufficient to support 9 the motion and do not on their face reveal a genuine issue of material fact. See United States v. Real 10 Property at Incline Village, 47 F.3d 1511, 1520 (9th Cir. 1995) (local rule cannot mandate automatic 11 entry of judgment for moving party without consideration of whether motion and supporting papers 12 For the Northern District of California summary judgment solely because the opposing party has failed to file an opposition. Cristobal v. 6 UNITED STATES DISTRICT COURT 5 satisfy Fed. R. Civ. P. 56), rev'd on other grounds sub nom. Degen v. United States, 517 U.S. 820 13 (1996). 14 To state a claim under § 1983, a plaintiff must allege: (1) the conduct complained of was 15 committed by a person acting under color of state law; and (2) the conduct violated a right secured 16 by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988). It is 17 undisputed that the police officers were acting under color of state law, and Mr. Andrews’s claim is 18 that the officers violated his Fourth Amendment right to be free from unreasonable searches and 19 seizures and excessive force under the Fourth Amendment.. Thus, the issue before the court is 20 whether the force used during his seizure was “objectively reasonable.” Arpin v. Santa Clara Valley 21 Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001) (citing Graham v. Connor, 490 U.S. 386, 388 22 (1989)). 23 “Determining whether the force used to effect a particular seizure is reasonable under the Fourth 24 Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s 25 Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 26 490 U.S. at 396 (internal citations and quotations omitted). To do so, a court must evaluate “the 27 facts and circumstances of each particular case, including [(1)] the severity of the crime at issue, 28 [(2)] whether the suspect poses an immediate threat to the safety of the officers or others, and [(3)] C 12-04614 LB ORDER 3 1 whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Tennessee 2 v. Garner, 471 U.S. 1, 8-9 (1985)). 3 The papers in support of the motion for summary judgment show that the Berkeley police acted 4 appropriately when taking Mr. Andrews into protective custody and used a reasonable amount of 5 force under the Fourth Amendment. Mr. Andrews called 911, saying that he was being robbed near 6 Blondie’s Pizza in Berkeley. Police officers responded, but Mr. Andrews spoke in a confused, 7 unintelligible, and delusional manner, and he was sweating profusely even though it was about 60 8 degrees outside. Officers determined that he should be taken into protective custody, and he tried to 9 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; 12 For the Northern District of California hospital. No one struck Mr. Andrews at any time, but because he continued to resist, they had to 11 UNITED STATES DISTRICT COURT 10 Lathrop Decl. ¶ 7. There are poorly-lit videos of the incident from a bystander’s cell phone. Orebic 13 Decl. Ex. E (the videos). The officers sound calm and there is no suggestion of unreasonable force. 14 During his deposition, Mr. Andrews confirmed that it was his voice on the 911 call. He has no 15 recollection of calling 911, the alleged robbery, talking with the officers, or resisting them. Andrews 16 Dep., Orebic Decl. Ex. B at 57-61, 69. He testified that during the two-hour period before the 17 incident, he consumed four drinks of hard alcohol of two to four ounces of alcohol each, smoked 18 marijuana, and might have smoked cocaine mixed in with the marijuana since he did not roll the 19 “blunt” himself. Id. at 31, 40, 42, 102-03 20 The hospital records (which Defendants submitted with the appropriate custodial declarations) 21 show that when he arrived at Alta Bates, Mr. Andrews was “disoriented or irrational” and 22 “aggressive or violent” such that he was placing himself or others in danger. Orebic Decl. Ex. C-1. 23 He was restrained and held in protective custody under Welfare and Institutions Code section 5150. 24 He could not follow verbal directions. Id. He was transferred to Kaiser, where he was diagnosed 25 with acute cocaine intoxication and being in an agitated delirium and admitted to the hospital for the 26 condition, which apparently caused acute kidney failure. Orebic Decl. Ex. C-2. The chart says that 27 he told the doctor the next day that he snorts cocaine, and the doctor explained that the patient 28 became “agitated with delusions and paranoia when intoxicated with cocaine.” Id. Plaintiff C 12-04614 LB ORDER 4 1 admitted that he “can’t recall details of what happened last night.” Id. The doctor lifted the 5150 2 hold and explained the risks of cocaine including renal failure. Id. Defendants point out that the 3 same thing happened two years later, when Mr. Andrews was again taken into protective custody 4 and admitted to the hospital with acute cocaine intoxication and delirium, and it took six days to 5 stabilize him. Orebic Decl. Ex. D; Jung Decl. ¶ 6. 6 Plaintiff contends that the handcuffs caused cuts and abrasions on his wrists, but he admits that 7 he does not know if he was injured from forcefully pulling on the handcuffs when cuffed to a gurney 8 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 11 doing so, they saved Mr. Andrews’s life. Moreover, given Mr. Andrews’s struggling to get away, 12 For the Northern District of California Under the totality of the circumstances, the police had probable cause to take Andrews into 10 UNITED STATES DISTRICT COURT 9 the force used was reasonable. 13 Mr. Andrews also claims in the complaint that the force was excessive in violation of the 14th 14 Amendment. The Fourteenth Amendment’s substantive due process clause protects against the 15 arbitrary or oppressive exercise of government power. See County of Sacramento v. Lewis, 523 U.S. 16 833, 845-46 (1998). “[T]he Due Process Clause is violated by executive action only when it can be 17 properly characterized as arbitrary, or conscience shocking, in a constitutional sense.” Id. at 845-47; 18 see Lemire v. Cal. Dept. Of Corrections & Rehabilitation, 726 F.3d 1062, 1075 (9th Cir. 2013). The 19 cognizable level of executive abuse of power is that which “shocks the conscience” or “violates the 20 decencies of civilized conduct.” Lewis, 523 U.S. at 846. Mere negligence or liability grounded in 21 tort does not meet the standard for a substantive due process decision. Id. at 849. Where a law 22 enforcement officer makes a snap judgment because of an escalating situation, his conduct may be 23 found to shock the conscience only if he acts with a purpose to harm unrelated to legitimate law 24 enforcement objectives.” Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013) (citing 25 Wilkinson, 610 F.3d at 554). The summary judgment papers establish that the police officers’ 26 conduct did not violate the Fourteenth Amendment. 27 Finally, the complaint also alleges an Equal Protection violation. There is no evidence of any 28 discrimination against Mr. Andrews. See City of Cleburne v.Cleburne Living Center, 473 U.S. 432, C 12-04614 LB ORDER 5 1 439 (Equal Protection Clause requires that “all persons similarly situated should be treated alike”). 2 In sum, Defendants’ unopposed summary judgment papers establish that they did not violate Mr. 3 Andrews’s rights, and there is no genuine issue of material fact evident from the papers or the record 4 otherwise before the court. 5 6 7 8 9 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 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 12-04614 LB ORDER 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?