Yousif v. San Mateo County Sheriff et al
Filing
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ORDER GRANTING DEFENDANT McLEMORE'S MOTION FOR SUMMARY JUDGMENT by Hon. William Alsup granting 102 Motion for Summary Judgment.(whalc1, COURT STAFF) (Filed on 3/23/2017)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OSMAN YOUSIF,
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For the Northern District of California
United States District Court
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Plaintiff,
No. C 15-04887 WHA
v.
DEPUTY SHERIFF DEFRANCE
McLEMORE and DOES 1–100,
ORDER GRANTING
DEFENDANT McLEMORE’S
MOTION FOR SUMMARY
JUDGMENT
Defendant.
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INTRODUCTION
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In this action for wrongful arrest and excessive force, the sole remaining defendant
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moves for summary judgment or, in the alternative, terminating sanctions. To the extent stated
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below, defendant’s motion for summary judgment is GRANTED.
STATEMENT
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Defendant Defrance McLemore served as a sheriff’s deputy in the San Mateo County
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Sheriff’s office. Deputy McLemore knew of plaintiff Osman Yousif as someone who had been
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charged and convicted of criminal activity, who associated with known criminal suspects, such
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as Gilberto “Colla” Flores, and who frequently interfered with law enforcement activity
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(McLemore Decl. ¶ 8).
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On September 20, 2015, Deputy McLemore was on patrol duty in a marked vehicle at a
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shopping center in Half Moon Bay. At 10:45 p.m., he observed a white vehicle parked in a lot
behind one of the two stores that remained open at the time — a lot he knew to be the locus of
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criminal activity. Deputy McLemore approached the white vehicle with the goal of speaking
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with its occupants, though he did not activate his patrol lights (McLemore Dep. at 17–19).
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As Deputy McLemore approached, the white vehicle departed and headed towards the
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entrance of the second store that remained open. Deputy McLemore pursued. When the white
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vehicle arrived at the entrance to the second location, the individual in the passenger seat exited
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the vehicle and entered the store. Deputy McLemore recognized the passenger as Yousif (id. at
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23–26; McLemore Decl. ¶ 7).
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Deputy McLemore then heard the white vehicle accelerate quickly towards the exit of
driving recklessly in violation of California law. Deputy McLemore activated his siren and
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For the Northern District of California
the parking lot at speeds in excess of fifty miles per hour, which he determined constituted
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United States District Court
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lights and again pursued the white vehicle. After a brief pursuit, the driver exited the vehicle
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and ran back toward the store Yousif had entered. Deputy McLemore requested backup and
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chased the driver, while shouting verbal commands to him to get on the ground (McLemore
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Dep. at 27–28; McLemore Decl. ¶¶ 10–11). Deputy McLemore eventually caught the driver,
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who was later identified as Yousif’s known criminal associate, Flores, and brought him to the
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ground. As Deputy McLemore struggled to gain control of Flores, backup arrived and helped
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place handcuffs on Flores (McLemore Decl. ¶¶ 11–12; McLemore Dep. at 33).
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Yousif observed this altercation and approached, pointing a camera in the direction of
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one of the deputy’s patrol cars. He pulled out a camera and asked “What’s going on?” even as
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Deputy McLemore and the backup officer struggled to handcuff Flores and search him (Yousif
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Dep. at 22, 61; Council Decl. ¶ 6). Yousif’s nearness led Deputy McLemore to release his hold
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of Flores, who continued to resist the backup officer’s search. Deputy McLemore instructed
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Yousif to turn around and put his hands on his back, but Yousif continued to approach
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(McLemore Dep. at 34–35; Yousif Dep. at 27, 211).
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Deputy McLemore removed his taser from its holster, turned it on, and pointed it
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towards Yousif, who continued to refuse to turn around and place his hands on his head and
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who was holding an object in his hand that Deputy McLemore could not identify. Once Yousif
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was close enough, Deputy McLemore determined Yousif was not an active safety threat and
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deactivated his taser without discharging it. Deputy McLemore continued to direct Yousif to
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get on the ground and place his hands behind his back, to no avail. Deputy McLemore grabbed
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Yousif’s left arm and attempted to move Yousif to the ground in order to place him under arrest.
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Deputy McLemore, with the assistance of the backup officer, then managed to get Yousif in a
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wrist lock, apply handcuffs, and conduct a search. Deputy McLemore then informed Yousif he
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was under arrest for violating Section 148 of the California Penal Code, which prohibits
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“willfully resist[ing], delay[ing], or obstruct[ing], any public officer . . . in the discharge or
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attempt to discharge any duty of his or her office or employment . . . .”
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Meanwhile, Flores fled the scene, though Deputy McLemore and his backup eventually
found Flores behind one of the stores in the shopping center (Council Decl. ¶ 12).
Yousif was transported to a police station. At the station, Deputy McLemore observed
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Yousif repeatedly raise his legs off the ground then slam them to the ground violently and
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overheard Yousif repeat “I want to kill myself” among other self-harm statements (McLemore
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Dep. at 63; Yousif Dep. at 169). Based on Yousif’s behavior, Deputy McLemore believed
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plaintiff to be a danger to himself and referred Yousif to assessment by medical professionals
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pursuant to Section 5150 of the California Welfare & Institutions Code (McLemore Decl. ¶ 20).
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Yousif, at first proceeding pro se, commenced this action in October 2015. His initial
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complaint related to six different encounters with the police (including the above-described
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encounter) and named a litany of defendants. Several defendants moved to dismiss (Dkt. Nos.
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19–20, 23). He then obtained counsel and sought leave to file an amended complaint (Dkt. Nos.
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27, 29). Yousif’s attorney missed the deadline to file his amended complaint three times.
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Nevertheless, several extensions were granted and he met the fourth deadline set (Dkt. Nos.
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34–35). The motions to dismiss were denied as moot (Dkt. No. 36). Several defendants then
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moved to dismiss the amended complaint (Dkt. Nos. 37–38). On the morning that his
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oppositions were due, Yousif’s counsel sought an extension, which was granted (Dkt. No. 42).
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An order granted in part and denied in part two separate motions to dismiss (Dkt.
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No. 54). That order allowed Yousif’s claim against Deputy McLemore and another officer to
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survive and allowed him to seek leave to amend his claims as to the other defendants. Yousif
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did not timely seek leave to amend, so the claims against that group of defendants were finally
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dismissed (Dkt. No. 62).
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While this action remained pending, Yousif commenced a second action against the
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defendants that had just been dismissed. The new action came to the undersigned judge. The
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defendants therein moved to dismiss on res judicata grounds even though final judgment had
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not yet been entered in the first action. An order granted judgment under Rule 54(b) for those
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defendants, and Yousif voluntarily dismissed his second action. He then stipulated to the
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dismissal of Officer Dennis Loubal, leaving Deputy McLemore as the sole remaining defendant
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in the first action (this action). The sole remaining claims are for excessive force and for
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unreasonable seizure both arising out of the events detailed above.
The parties appeared before the court for numerous discovery disputes, several of which
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resulted in sanctions against counsel for Yousif (Dkt. Nos. 72, 79). Another discovery dispute
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ended in an order precluding Yousif’s reliance on any facts or documents responsive to
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reasonable discovery requests that had not been provided in his initial disclosures or in his
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deposition (Dkt. No. 95). That order left open the possibility that terminating sanctions would
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be in order once the prejudice of Yousif’s complete failure to respond to discovery requests
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became clear.
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Deputy McLemore now moves for summary judgment, or, in the alternative, terminating
sanctions. This order follows full briefing and oral argument.
ANALYSIS
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To succeed under Section 1983, Yousif must prove that Deputy McLemore violated his
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constitutional rights while acting under the color of state law. The only two claims still in play
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are claims that Deputy McLemore used excessive force and unreasonably seized Yousif at the
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parking lot on September 20, 2015, and that Deputy McLemore further unreasonably seized
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Yousif by recommending medical examination due to his behavior at the station. Summary
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judgment is appropriate on a claim for use of excessive force if, “after resolving all factual
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disputes in favor of the plaintiff, . . . the officer’s use of force was objectively reasonable under
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the circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). The reasonableness of
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a use of force is judged from a reasonable officer in the circumstances, and must allow for
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officers “to make split-second judgments — in circumstances that are tense, uncertain, and
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rapidly evolving — about the amount of force that is necessary in a particular circumstance.”
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Graham v. Connor, 490 U.S. 386, 396 (1989).
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Yousif offers limited discussion of the facts in his opposition. At his deposition, Yousif
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stated that Deputy McLemore “started running towards” him at some point after Yousif began
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walking away from the store (and toward the officers). Yousif acknowledged that he heard
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Deputy McLemore shouting commands, but that he “couldn’t make out what he was saying
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clearly.” He further testified that once the laser sight from Deputy McLemore’s taser hit him,
Yousif froze “like how a deer is like frozen with headlights,” but Yousif offers no evidence
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regarding his distance from Deputy McLemore at the time Yousif stopped approaching the
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active scene. He stated he was “two steps” out of the store in the direction through the parking
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lot to his home, but that he was “still walking” when Deputy McLemore began to approach
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(Yousif Dep. at 22–23, 26, 32).
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Yousif also described the moment Deputy McLemore pointed a taser at him (id. at 23):
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[Yousif]: And at one point, there was a red light — that hit my
face — or hit my eyeballs, because like I could — I like remember
just red went across my eyes. And I was like: Whoa
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[Question]: Can you explain what type of red light?
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[Yousif]: Laser.
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Yousif’s version of the story leading up to his physical encounter with Deputy
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McLemore does not conflict with Deputy McLemore’s testimony. Deputy McLemore stated
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that he turned from Flores to Yousif once Yousif was approximately fifty feet away. He further
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testified that Yousif failed to comply with commands to stop, turn around, and place his hands
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behind his back, and that the two were close enough that Deputy McLemore feared for his
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safety due to Yousif’s non-compliance before Deputy McLemore unholstered his taser
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(McLemore Dep. at 36).
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The undisputed facts show that late at night in a parking lot known for criminal activity,
Yousif approached the scene of an arrest of a confederate, with a small object in his hand, and
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refused to heed clear instructions to stop approaching. Deputy McLemore recognized Yousif
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and recalled that he had a criminal history, including multiple incidents involving interference
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with police business, and he had seen Yousif exit the car driven by Flores (the other suspect)
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minutes earlier. Although Deputy McLemore determined Yousif was not an immediate safety
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threat before the arrest, Yousif’s interference with police duties began when he approached the
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scene with a small object in his hand (his camera), compounding the obstructive effect of his
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approach There is no genuine dispute about the material facts leading to Yousif’s arrest.
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Deputy McLemore had probable cause to arrest Yousif for obstruction of the discharge of the
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patrol officers’ duty.
Yousif’s claim relating to Deputy McLemore’s use of force fares no better. At his
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deposition, Yousif described the altercation via his internal monologue at the time: “why is he
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running towards me with a weapon [the taser?], why is he body slamming me, like you know?”
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(id at 26). He later stated that his face had been “pushed into cement,” that he had been “body
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slammed,” and that his “knee hurt” at the time. As a result, he had “scuffs and scrapes” (Yousif
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Dep. at 164–66).*
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Notwithstanding Yousif’s vague description of injuries, he has produced no medical
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records indicating treatment for an injury relating to this incident. Yousif’s “conclusory
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allegations unsupported by factual data” showing that “the forced used was unreasonable or that
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[he] sustained actual injuries” cannot defeat summary judgment. Arpin v. Santa Clara Valley
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Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001).
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Yousif also offers no defense to his claim that Deputy McLemore’s referral of plaintiff
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for assessment by medical professionals due to his behavior at the police station constituted an
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unreasonable seizure. The undisputed facts show that Deputy McLemore reasonably believed
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Yousif was a danger to himself.
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This order does not consider Yousif’s purported statement that a medical examination that night
“sound[ed] accurate” when it reported “no visible abrasions.” That testimony purportedly appeared on page 189
of Yousif’s deposition, but that page was not included in the record. Similarly, Exhibit 5 to Yousif’s deposition,
which appears to be the report in question, is not considered, inasmuch as there is no deposition testimony in the
record relating to that document.
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Apparently recognizing that he cannot offer facts to genuinely dispute Deputy
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McLemore’s characterization of the events, Yousif’s opposition instead principally relies on
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evidentiary objections, to which this order now turns.
Deputy McLemore failed to submit the reporter’s certification to authenticate the depositions in
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question. In Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002), our court of
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appeals held that a deposition transcript could not be considered on summary judgment motion
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where it lacked a cover page and the reporter’s certification, and where the excerpted portions
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of the transcript lacked any reference to the purported deponent’s name. Without any basis for
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identifying the transcript, it could not be authenticated even by an affidavit from counsel who
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Yousif objects to consideration of Deputy McLemore’s and his own deposition because
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was present at the deposition.
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Orr left open, however, the possibility that a deposition could be authenticated even
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without the reporter’s certification, if it could be authenticated from its contents. Indeed, here,
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unlike in Orr, both deposition transcripts include the deponent’s name on each page. Moreover,
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Orr specifically held that where the objecting party provides the reporter’s certification for the
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same document, the resulting authentication applies to both sides. This may extend even where
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the parties submit different excerpts provided, they are readily apparent as part of the same
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document. See id. at 776 n.16.
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Here, Yousif himself submitted the reporter’s certification for both depositions in
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question (as did McLemore in reply). The format and the labeling of the excerpts indicate that
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they are part of the same transcripts. Accordingly, Yousif’s objection is OVERRULED.
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Yousif also objects to consideration of McLemore’s deposition because he “could not
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recall any facts” and “consistently had to read from his report” (Pl.’s Opp. at 7). This objection
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is also OVERRULED. FRE 612 allows a witness to use a writing to refresh his memory while
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testifying. Yousif has pointed to nothing in the record to suggest Deputy McLemore’s reference
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to his report was improper.
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All other objected-to materials, specifically, portions of Yousif’s own testimony, Deputy
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Council’s report from the night in question, and the CAD readout from the night in question,
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were unnecessary to this order, so the objections are OVERRULED AS MOOT.
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This order need not reach the question of whether Deputy McLemore is entitled to
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qualified immunity inasmuch as there is no genuine dispute of fact about what occurred on
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September 20, 2015, and the undisputed facts show that Deputy McLemore acted reasonably.
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Nor does it need to reach Deputy McLemore’s request for terminating sanctions.
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CONCLUSION
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To the extent stated above, Deputy McLemore’s motion for summary judgment is
GRANTED. Judgment will follow.
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IT IS SO ORDERED.
Dated: March 23, 2017.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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