Lopez v. Clous et al

Filing 35

ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT and ORDER REFERRING CASE to Magistrate Judge Nandor J. Vadas for Settlement. Motion is GRANTED as to Sergeant Clous, Detective Henderson and officers Enos and Pate, and DENIED as to o fficers Martin, Mead and Nguyen re 18 MOTION for Summary Judgment (Notice) filed by Ken Henderson, et al. A settlement conference shall take place within 120 days of the date of this order, Signed by Judge Charles R. Breyer on 8/19/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 8/21/2014)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 FERNANDO G. LOPEZ, AN-1753, Plaintiff(s), 7 8 9 10 v. SERGEANT CLOUS, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) No. C 13-3870 CRB (PR) ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND REFERRING MATTER FOR SETTLEMENT PROCEEDINGS (Dkt. 18) 11 12 Plaintiff, a prisoner at San Quentin State Prison, filed a pro se complaint 13 under 42 U.S.C. § 1983 alleging that on September 21, 2011, while he was 14 driving on Southwest Expressway and Liegh Avenue in San Jose, Santa Clara 15 “police officers” pulled him over, threw him out of his car and onto the ground, 16 and proceeded to assault and beat him. Plaintiff specifically alleges that Sergeant 17 Clous and officers Nick Nguyen, Ken Henderson, Aric Enos, Justin Mead, Luis 18 Martin and John Pate “beat me severely by punching me, and kicking me 19 repeatedly to the point of me losing consciousness and then continued to punch 20 and kick my face in.” Verified Compl. (dkt. 1) ¶ 11. 21 Per order filed on December 17, 2013, the court found that, liberally 22 construed, plaintiff’s allegations state a cognizable § 1983 claim for damages 23 against Sergeant Clous and officers Nick Nguyen, Ken Henderson, Aric Enos, 24 Justin Mead, Luis Martin and John Pate, and ordered the U.S. Marshal to serve 25 them. Defendants now move for summary judgment on the ground that there are 26 no material facts in dispute and that they are entitled to judgment as a matter of 27 law. The officer defendants also claim that they are entitled to qualified 28 immunity. Plaintiff filed an opposition and defendants filed a reply. 1 2 DISCUSSION A. Standard of Review 3 Summary judgment is proper where the pleadings, discovery and 4 affidavits show that there is “no genuine dispute as to any material fact and the 5 [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 6 Material facts are those which may affect the outcome of the case. Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 8 genuine if there is sufficient evidence for a reasonable jury to return a verdict for 9 the nonmoving party. Id. 10 The moving party for summary judgment bears the initial burden of 11 identifying those portions of the pleadings, discovery and affidavits which 12 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 13 Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden 14 of proof on an issue at trial, it must affirmatively demonstrate that no reasonable 15 trier of fact could find other than for the moving party. But on an issue for which 16 the opposing party will have the burden of proof at trial, as is the case here, the 17 moving party need only point out “that there is an absence of evidence to support 18 the nonmoving party’s case.” Id. 19 Once the moving party meets its initial burden, the nonmoving party must 20 go beyond the pleadings to demonstrate the existence of a genuine dispute of 21 material fact by “citing to specific parts of materials in the record” or “showing 22 that the materials cited do not establish the absence or presence of a genuine 23 dispute.” Fed. R. Civ. P. 56(c). A triable dispute of fact exists only if there is 24 sufficient evidence favoring the nonmoving party to allow a jury to return a 25 verdict for that party. Anderson, 477 U.S. at 249. If the nonmoving party fails to 26 make this showing, “the moving party is entitled to judgment as a matter of law.” 27 28 2 1 Celotex, 477 U.S. at 323. 2 B. 3 Legal Claim Defendants argue that they are entitled to qualified immunity from 4 plaintiff’s claim that they used excessive force in violation of the Fourth 5 Amendment. Under Saucier v. Katz, 533 U.S. 194 (2001), the court must 6 undertake a two-step analysis when a defendant asserts qualified immunity in a 7 motion for summary judgment. The court first faces “this threshold question: 8 Taken in the light most favorable to the party asserting the injury, do the facts 9 alleged show the officer’s conduct violated a constitutional right?” 533 U.S. at 10 201. If the court determines that the conduct did not violate a constitutional right, 11 the inquiry is over and the officer is entitled to qualified immunity. 12 If the court determines that the conduct did violate a constitutional right, it 13 then moves to the second step and asks “whether the right was clearly 14 established” such that “it would be clear to a reasonable officer that his conduct 15 was unlawful in the situation he confronted.” Id. at 201-02. Even if the violated 16 right was clearly established, qualified immunity shields an officer from suit 17 when he makes a decision that, even if constitutionally deficient, reasonably 18 misapprehends the law governing the circumstances he confronted. Brosseau v. 19 Haugen, 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 205-06. If “the officer’s 20 mistake as to what the law requires is reasonable . . . the officer is entitled to the 21 immunity defense.” Id. at 205.1 22 23 Under the Fourth Amendment, police officers may only use such force as is “objectively reasonable” under the circumstances. Graham v. Connor, 490 24 1 27 Although the Saucier sequence is often appropriate and beneficial, it is not mandatory. A court may exercise its discretion in deciding which prong to address first, in light of the particular circumstances of each case. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). 28 3 25 26 1 U.S. 386, 397 (1989). To determine whether the force used was reasonable, 2 courts balance the nature and quality of the intrusion on the individual’s Fourth 3 Amendment interests against the countervailing governmental interests at stake. 4 Id. at 396. The “reasonableness” of a particular use of force must be judged from 5 the perspective of a reasonable officer on the scene, rather than with the 20/20 6 vision of hindsight. Id. Because the reasonableness test is not capable of precise 7 definition or mechanical application its proper application requires careful 8 attention to the facts and circumstances of each particular case, including “the 9 severity of the crime at issue, whether the suspect poses an immediate threat to 10 the safety of the officers or others, and whether he is actively resisting arrest or 11 attempting to evade arrest by flight.” Id. 12 In addition, the court’s consideration of “reasonableness must embody 13 allowance for the fact that police officers are often forced to make split-second 14 judgments – in circumstances that are tense, uncertain, and rapidly evolving – 15 about the amount of force that is necessary in a particular situation.” Id. at 396- 16 97. Nor every push or shove, even if it may later seem unnecessary in the peace 17 of a judge’s chambers, violates the Fourth Amendment. Id. at 396. 18 19 1. Defendants’ evidence In support of their motion for summary judgment and qualified 20 immunity, defendants submitted various declarations and documentary evidence 21 showing the following facts: On September 21, 2011, Santa Clara Police 22 Department (SCPD) officers received information pertaining to the whereabouts 23 of plaintiff, who was a possible arson suspect and had an outstanding warrant for 24 an unrelated assault. Martin Decl. (dkt. 25) ¶¶ 2-3; Mead Decl. (dkt. 26) ¶¶ 2-3; 25 Nguyen Decl. (dkt. 27) ¶¶ 2-3. After conducting surveillance at the apartment 26 residence the officers believed plaintiff to be, Sergeant Clouse and Detective 27 28 4 1 Thompson followed another resident of the apartment away from the residence 2 and stopped her. Clouse Decl. (dkt. 22) ¶ 4. She informed them that she knew 3 plaintiff, that he was hostile to the police, would “fight or run” if contacted by the 4 police, and might have a sawed-off shotgun in his possession. Id. Clouse relayed 5 this information to the officers who were still surveying the residence. Id. ¶ 5. 6 Shortly after, officers Martin and Mead, still surveying the residence, 7 observed plaintiff get into a car and drive away from the residence. Martin Decl. 8 ¶¶ 4-6; Mead Decl. ¶¶ 4-5. They followed plaintiff in an unmarked SCPD 9 vehicle, and Officer Nguyen followed in another unmarked vehicle behind Mead 10 and Martin. Nguyen Decl. ¶ 5; Martin Decl. ¶ 6; Mead Decl. ¶¶ 5-6. The three 11 officers followed plaintiff onto the Southwest Expressway and continued to 12 follow him until he pulled over to the right curb and parked. Mead Decl. ¶ 6; 13 Nguyen Decl. ¶ 6. Believing that plaintiff suspected the police was following 14 him and might be planning an escape, Martin parked his vehicle in front of 15 plaintiff’s to prevent him from driving forward. Martin Decl. ¶ 8. Nguyen 16 positioned his vehicle one hundred feet behind plaintiff’s to prevent him from 17 driving backward. Martin Decl. ¶ 9; Mead Decl. ¶ 6; Nguyen Decl. ¶ 6. Mead 18 then exited his vehicle (which Martin was driving) with his pistol drawn and 19 yelled “Stop! Police.” Mead Decl. ¶ 7. Plaintiff immediately drove in reverse 20 against oncoming traffic and towards Nguyen’s vehicle, stopping just before 21 colliding with it. Martin Decl. ¶ 6; Mead Decl. ¶ 8; Nguyen Decl. ¶ 10. 22 After Mead got back in the car with Martin, the three officers again used 23 their two vehicles to box in plaintiff. Martin Decl. ¶ 11; Mead Decl. ¶ 8. All 24 three officers exited their vehicles and approached plaintiff with pistols drawn. 25 Martin Decl. ¶ 12; Mead Decl. ¶ 9; Nguyen Decl. ¶ 7. They all identified 26 themselves as police and commanded plaintiff to get out of his car. Id. Plaintiff 27 28 5 1 did not respond, so Nguyen opened the car door and Martin and Nguyen pulled 2 plaintiff out of his car. Martin Decl. ¶ 12; Nguyen Decl. ¶ 8. 3 After the officers got plaintiff onto the asphalt face down, plaintiff went 4 rigid and began resisting arrest by tugging his body away from the officers and 5 by tucking his arms and hands underneath his chest and waist area. Martin Decl. 6 ¶ 13; Mead Decl. ¶ 10; Nguyen Decl. ¶ 8. Mead placed his left knee on 7 plaintiff’s upper back to prevent him from moving. Mead Decl. ¶ 11. The 8 officers repeatedly ordered plaintiff to give them control of his hands, but 9 plaintiff refused and continued to tuck them underneath his waist area. Martin 10 Decl. ¶ 13; Mead Decl. ¶ 10. In an attempt to get control of plaintiff’s hands, 11 Martin punched plaintiff in the left torso ten times and delivered two knee strikes 12 to the same area. Martin Decl. ¶¶ 13, 14. Nguyen also punched plaintiff five 13 times in the middle of his back, but to no avail. Nguyen Decl. ¶¶ 10-11. Fearing 14 that plaintiff might be reaching for a weapon carried near his waistband, Mead 15 struck plaintiff in the right side of his face three tines in order to bring plaintiff’s 16 hands towards his face. Mead Decl. ¶¶ 12-13. Throughout this entire struggle, 17 the officers and plaintiff were at risk of being struck by cars passing by in the 18 next lane. Clouse Decl. ¶ 7; Mead Decl. ¶ 12; Nguyen Decl. ¶ 10. Eventually, 19 the officers gained control of plaintiff’s hands, handcuffed him and pulled him 20 onto the sidewalk. Martin Decl. ¶ 15; Mead Decl. ¶ 13; Nguyen Decl. ¶ 12. 21 At around the time the three officers handcuffed plaintiff, Sergeant Clouse 22 arrived on the scene and called for a transport to take plaintiff to the SCPD 23 station. Clouse Decl. ¶ 9. Officer Enos was dispatched to transport plaintiff to 24 the station. Enos Decl. (dkt. 23) ¶¶ 3-4. Plaintiff was later transported to Valley 25 Medical Center to be treated for his injuries. Id. ¶ 6. Enos waited with plaintiff 26 while he was treated. Id. Officer Pate was dispatched to Valley Medical Center 27 28 6 1 to transport plaintiff back to the police station. Pate Decl. (dkt. 28) ¶ 3. Pate 2 transported plaintiff to the station and booked his blood sample into the evidence 3 room. Id. ¶ 4. 4 5 6 Detective Henderson was not present during plaintiff’s encounter with SCPD officers on September 21, 2011. Henderson Decl. (dkt. 24) ¶ 2. 2. Plaintiff’s evidence In support of his claim of use of excessive force during arrest, 7 8 plaintiff submitted a verified complaint and declaration showing the following 9 facts: Plaintiff was driving eastbound on the Southwest Expressway when two 10 undercover police officers pulled him over. Verified Compl. ¶ 10; Lopez Decl. 11 (dkt. 32-1) at 1. Plaintiff immediately pulled over. Lopez Decl. at 1. Instantly, 12 officers Martin, Mead and Nguyen surrounded plaintiff’s car and pointed their 13 pistols at his head. Id. Officer Nguyen opened the car door and, with Officer 14 Martin’s help, pulled plaintiff out of the car and threw him onto the ground. Id. 15 Plaintiff did not resist. Id. at 2. But the officers nonetheless proceeded to punch 16 plaintiff’s face and kick plaintiff’s ribs repeatedly. Id.; Verified Compl. ¶ 11. As 17 plaintiff was about to lose consciousness, the officers pulled plaintiff’s arms 18 behind his back and dislocated his shoulder. Id. ¶ 12. After handcuffing 19 plaintiff, the officers continued to punch and kick plaintiff’s back, arms and face. 20 Id. ¶ 13. 21 3. 22 Analysis While the test for reasonableness is often a question for the jury, 23 this issue may be decided as a matter of law if, in resolving all factual disputes in 24 favor of the plaintiff, the officers’ force was “objectively reasonable” under the 25 circumstances. Gregory v. County of Maui, 523 F.3d 1103, 1108 (9th Cir. 2008); 26 Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Under the circumstances 27 28 7 1 described by the facts set forth by defendants, the use of force by officers Martin, 2 Mead and Nguyen in the course of restraining and detaining plaintiff appears to 3 have been objectively reasonable. Plaintiff was resisting arrest by tucking his 4 arms and hands under his chest and waist area, and ignoring repeated requests to 5 let out his hands so he could be handcuffed. The officers were fearful that 6 plaintiff was armed with a weapon and would attempt to use it if they did not 7 gain control of his hands. Additionally, the officers were in close proximity to 8 passing traffic and at great risk of being struck by a car if they could not quickly 9 restrain plaintiff and diffuse the situation. Under these circumstances, the force 10 used by officers Martin, Mead and Nguyen in order to gain control of plaintiff’s 11 hands may be said to have been objectively reasonable. Cf. Marquez v. City of 12 Phoenix, 693 F.3d 1167, 1174-76 (9th Cir. 2012) (officers did not use excessive 13 force in tasing a suspect after they pushed past a barricade and entered a blood- 14 spattered room, with an injured adult and a child in evident distress, and warned 15 arrest-resisting suspect they would tase him if he did not comply with their 16 commands). And Sergeant Clous, Detective Henderson and officers Enos and 17 Pate had nothing to do with the use of force against plaintiff. 18 Plaintiff’s version of the facts is different. In his opposing declaration, 19 plaintiff alleges that, “[w]ithout any resistance from me at all,” officers Martin 20 and Nguyen “pulled me out of my vehicle and threw me onto the ground 21 knocking the wind out of me.” Lopez Decl. at 1. And “while on the ground, face 22 down, lying on my stomach, with the wind knocked out of me and almost 23 unconscious,” Martin, Mead and Nguyen proceeded to “punch[] me in my face, 24 kick[] me in the ribs and beat[] me repeatedly,” while saying, “‘he’s a fuckin 25 Norteno, beat his ass!” Id. at 2. There was no reason to beat me repeatedly 26 because “I did not resist arrest.” Id. 27 28 8 1 2 3 4 5 6 7 8 9 Plaintiff further alleges under penalty of perjury in his verified complaint, which the court will treat as an opposing declaration,2 that: 12. Once I began to lose consciousness, these officers pulled my arms behind my back to the point of dislocating my shoulder in order to handcuff my wrists. 13. After being handcuffed with a dislocated shoulder, I was still being kicked and punched on my back, arms and face. In addition, these officers stomped my face into the ground repeatedly while in handcuffs. Verified Complaint ¶¶ 12-13. Even when viewing the evidence in the light most favorable to plaintiff, no reasonable jury could find that Sergeant Clous, Detective Henderson or 10 officers Enos or Pate used excessive force against plaintiff in violation of his 11 Fourth Amendment rights. There is no evidence showing that Sergeant Clous, 12 Detective Henderson or officers Enos or Pate actually and proximately caused the 13 deprivation of plaintiff’s Fourth Amendment rights. See Leer v. Murphy, 844 14 F.2d 628, 634 (9th Cir. 1988) (conclusory allegations insufficient to defeat 15 summary judgment). Sergeant Clous, Detective Henderson and officers Enos and 16 Pate are entitled to summary judgment as a matter of law. See Celotex, 477 U.S. 17 at 323. But the same cannot be said of officers Martin, Mead and Nguyen. 18 When viewing the evidence in the light most favorable to plaintiff, a 19 reasonable jury could find that officers Martin, Mead and Nguyen used excessive 20 force against plaintiff. Even if the use of some force was justified to promptly 21 handcuff plaintiff and move him away from oncoming traffic, a reasonable jury 22 could find that repeatedly punching and kicking plaintiff while he was on the 23 24 2 27 A verified complaint may be treated as an opposing affidavit or declaration where, as here, plaintiff states under penalty of perjury that the allegations are true and correct, and the allegations are based on his personal knowledge. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 28 9 25 26 1 ground, face down and not resisting arrest amounted to excessive use of force. 2 See Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (even where some force is 3 justified, amount actually used may be excessive). And a reasonable jury could 4 find that officers Martin, Mead and Nguyen used excessive force if they kicked, 5 punched and stomped plaintiff’s face into the ground after plaintiff was 6 handcuffed. See Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 7 1052, 1059 (9th Cir. 2003) (although some force was justified in restraining 8 mentally ill individual so he could not injure himself or officers, once he was 9 handcuffed and lying on ground without offering resistance, officers who knelt 10 on him and pressed their weight against his torso and neck despite his pleas for 11 air used excessive force). 12 Officers Martin, Mead and Nguyen are not entitled to summary judgment 13 on plaintiff’s Fourth Amendment excessive force claim. Nor are they entitled to 14 qualified immunity at this stage in the proceedings. Whether Martin, Mead 15 and/or Nguyen may be said to have made a “reasonable mistake” of fact or law 16 entitling them to qualified immunity, Saucier v. Katz, 533 U.S. 194, 205 (2001), 17 will depend on the resolution of disputed facts and the inferences that may be 18 drawn therefrom. See Santos, 287 F.3d at 855 n.12. Until the jury makes such 19 decisions, a court cannot determine whether a reasonable officer could have 20 mistakenly believed that the degree of force used was lawful under the 21 circumstances. See id. 22 23 CONCLUSION For the foregoing reasons, defendants’ motion for summary judgment (dkt. 24 18) is GRANTED as to Sergeant Clous, Detective Henderson and officers Enos 25 and Pate, and DENIED as to officers Martin, Mead and Nguyen. The court finds 26 that a referral to a magistrate judge for settlement proceedings is in order and 27 28 10 1 hereby REFERS this matter to Magistrate Judge Vadas for settlement 2 proceedings. All other proceedings are stayed. 3 A settlement conference shall take place within 120 days of the date of 4 this order, or as soon thereafter as is convenient to Magistrate Judge Vadas’ 5 calendar. Magistrate Judge Vadas shall coordinate a time and date for the 6 conference with all interested parties and/or their representatives and, within ten 7 (10) days after the conclusion of the conference, file with the court a report 8 regarding the conference. 9 The clerk shall provide a copy of this order to Magistrate Judge Vadas. 10 SO ORDERED. 11 DATED: August 19, 2014 CHARLES R. BREYER United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\CR.13\Lopez, F.13-3870.msj.referral.wpd 27 28 11

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