Cotton et al v. City of Eureka, California et al

Filing 208

ORDER by Judge Saundra Brown Armstrong GRANTING IN PART AND DENYING IN PART #167 Motion for Summary Judgment and GRANTING IN PART AND DENYING IN PART #178 Motion for Summary Judgment. Signed by Judge Saundra Brown Armstrong, on 08/31/11 (lrc, COURT STAFF) (Filed on 8/31/2011) Modified on 9/1/2011 (jlm, COURT STAFF).

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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9 SIEHNA M. COTTON, a minor, by and

Megan McClure, her guardian ad litem; and
10 MARTIN COTTON, SR., an individual,
Plaintiffs,

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Case No: C 08-04386 SBA
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ SUMMARY
JUDGMENT MOTIONS

vs.
Docket 167, 178

13 CITY OF EUREKA, CALIFORNIA, a

political subdivision of the State of California,
14 COUNTY OF HUMBOLDT, CALIFORNIA,

a political subdivision of the State of
15 California, et al.,
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Defendants.

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The instant civil rights action under 42 U.S.C. § 1983 arises from the death of

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Martin Cotton II (“Decedent”), who allegedly was beaten by police officers employed by

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the City of Eureka Police Department and died hours later of a head injury while in custody

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at the Humboldt County Correctional Facility (“HCCF”). The Decedent’s father, Martin

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Cotton, Sr., and the Decedent’s minor daughter, Siehna M. Cotton, by and through her

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guardian ad litem, bring the instant wrongful death and survival action, alleging federal

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claims for excessive force, deliberate indifference to serious medical needs, municipal

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liabilty and violation of their fourteenth amendment right to familial association, as well as

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related state law causes of action. The Defendants remaining in this action are the City of

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Eureka (“City”) and police officers Justin Winkle, Adam Laird, Gary Whitmer, Stephen

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Watson and Tim Jones (collectively “City Defendants”), and the County of Humboldt

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(“County”) and HCCF correctional officers (“C/O”) Dennis Griffin, Chet Christensen,

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Fernando Cangas, Frances Morgan and Devin Strong (collectively “County Defendants”).

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The parties are presently before the Court on (1) the County Defendants’ Motion for

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Summary Judgment/Adjudication, Dkt. 167, and (2) the City Defendants’ Motion for

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Summary Judgment/Partial Summary Judgment, Dkt. 178. Having read and considered the

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papers filed in connection with this matter and being fully informed, the Court hereby

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GRANTS IN PART and DENIES IN PART both of these motions. The Court, in its

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discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ.

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P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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I.

BACKGROUND
A.

Factual Summary
1.

Events at the Eureka Rescue Mission

On or about August 9, 2007, the Decedent was released from the custody of the

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HCCF for reasons not disclosed in the parties’ papers. Sarmiento Decl. Ex. C at 24:23-2:2,

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Dkt. 189. Thereafter, Decedent made his way to the Eureka Rescue Mission (“Rescue

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Mission”). Galipo Decl. Ex. 1 at 13:1-3, Dkt, 185. The Decedent became involved in an

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altercation with another individual at the shelter and the police were summoned. Delaney

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Decl. Ex. H at 19:6-12, Dkt. 179. At around 4:40 p.m., Officers Laird and Winkle arrived

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at the Rescue Mission and observed the Decedent shove Brian Hall, manager of the Rescue

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Mission. Id. Ex. B at 81:22-25.

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According to Plaintiffs, Officer Laird directed the Decedent to place his hands

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behind his back. After the Decedent did not comply quickly enough, the officers sprayed

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him in the face with pepper spray. Galipo Decl. Ex.1 at 19:1-7, 28:9-29:17; id. Ex. 2 at

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16:19-17:7. Without provocation, Officer Winkle delivered a knee strike to the Decedent’s

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midsection and pulled him to the ground. Id. Ex. 1 at 31:10-17, 34:16-20. Officer Winkle

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then delivered eight to nine full-force knee strikes to the right and left side of the

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Decedent’s body and repeatedly shoved the Decedent’s head into the cement sidewalk. Id.

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at 36:22-37:1, 44:14-16; 51:14-20, 65:8-12, 140:7-15. Officer Laird struck the Decedent
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with his baton two to three times, and delivered three to four knee strikes. Id. Ex. 2 at

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23:25-24:4, 25:25-26:3, 33:9-34:17. Officer Laird also kicked the Decedent multiple times.

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Id. Ex. 2 at 57:18-58:12; 67:13-68:2.

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Officer Whitmer was next to arrive at the scene. Officer Whitmer struck the

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Decedent with his baton, sprayed him in the face with pepper spray, bent his wrist back and

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sat on him. Id. Ex. 3 at 8:12-9:6; 18:15-25, 20:23-21:16; 60:24-61:20. Witness Michael

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Gage observed Officer Whitmer run up to the Decedent while he was on the ground and

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deliver a strong kick to his body. Id. Ex. 5 at 16:17-18:4; 41:17-42:10. Mr. Gage and

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another witness, Louise Valente, both saw the officers repeatedly striking Mr. Cotton in the

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head. Id. Ex. 5 at 18:23-19:4; id. Ex. 6 ¶ 8. However, at no time did the Decedent threaten

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or attack the officers. Id. Ex. 2 at 82:1-7; 82:8-10; Delaney Decl. Ex. D at 20:10-14.

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When Officer Watson arrived at the Rescue Mission, he made his way through the

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crowd that had gathered and observed the Decedent engaged in a struggle with Officers

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Laird, Winkle and Whitmer. Watson Decl. ¶ 3, Dkt. 181. Within a “matter of seconds” of

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reaching the scene, he observed Officer Laird apply three baton strikes to the Decedent’s

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lower legs. Id. Another officer asked Officer Watson for assistance in handcuffing the

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Decedent and to place a spit mask on him. Id. The spit mask is a thin, sheer mesh mask

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that prevents spitting but allows the individual to breathe. Id. ¶ 6; Supp. Laird Decl. Ex. B

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(exemplar of spit mask), Dkt. 199. Even though a spit mask had been placed on him, the

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Decedent continued to yell at the officers. Id.

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By the time Officer Jones arrived on scene, the Decedent was handcuffed and had a

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spit mask over his face. Jones Decl. ¶ 2, Dkt 180. He did not observe the other officers

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apply any force to the Decedent other than compliance holds. Id. ¶ 3. To control the

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Decedent while he was being searched, Officer Jones used his nunchakus (a martial arts

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weapon consisting of two sticks connected by a short chain or rope) to the Decedent’s

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forearm and wrists. Id. ¶ 4. Officer Jones did not intend to cause injury to the Decedent

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nor did he observe any such injuries. Id. ¶¶ 4-5.

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The police officers tell a different story. They claim that upon contacting the

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Decedent, he raised his hands and refused to submit to their authority. Delaney Decl. Ex. B

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at 40:12-16; id. Ex. C at 23:19-24:16, 25:11-27:1, 28:8-19. A witness to the incident stated

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that the Decedent appeared to not comply with the officers’ command to “give up [his]

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arm” and saw him spit at them. Id.. Ex. D at 15:23-16:2, 18:17-22, 19:25-20:10, 20:18-22,

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21:17-19. Although the officers applied pepper spray, it appeared to have no effect on the

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Decedent, leading them to believe that he was under the influence of methamphetamine.

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Id. Ex. B at 48:23-49:6, 124:15-21.1

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2.

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Decedent’s Detention at HCCF
a)

Events Following Arrival at the HCCF

Despite the physical force used against the Decedent, neither Officer Laird nor any

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other City police officer called for medical assistance. Galipo Decl. Ex. 1 at 60:6-61:7.

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Instead, with the Decedent in the back of his patrol car, Officer Laird followed Officer

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Winkle to the HCCF, which was located several blocks away. Id. at 70:1-19. Over the

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radio, Officer Whitmer offered to follow Officer Laird to the hospital since Officer Laird’s

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shift ended at 5:00 p.m. Id. Ex. 3 at 108:10-21. Officer Whitmer made this offer because

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he did not know whether the HCCF would accept the Decedent due to the baton strikes he

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received and the application of pepper spray. Id. at 108:22-109:25. Though not clear from

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the record, Officer Laird apparently declined the offer, as he took the Decedent directly to

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the HCCF. Id. Ex.1 at 70:16-22.

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The officers pulled their vehicles into the sally port, which is an underground

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parking structure below the HCCF where prisoners are received. Id. at 76:9-24. They were

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met by several HCCF C/Os, including C/Os Christensen, Cangas and Griffin. Sarmiento

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Decl. Ex. B at 20:2-9; Cangas Decl. ¶ 1, Dkt. 171; Christensen Decl. ¶ 3; Sarmiento Decl.

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Ex. D at 90:23-91:3. C/Os Christensen and Griffin were aware that the Decedent had

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previously been housed at the HCCF in an area for persons with mental issues. Sarmiento

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A subsequent toxicology report showed that, in fact, the Decedent had a large
amount of LSD in his system. Id. Ex. G at 15:22-16:14.
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Decl. Ex. D at 91:10-92:14; id. Ex. C at 25:9-12. While the Decedent remained in the

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patrol car, Officers Laird and Winkle informed C/O Christensen that they had “struggled

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very hard” with the Decedent to place him in handcuffs and that he had been subjected to

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baton strikes. Sarmiento Decl. Ex. C at 29:17-25, 30:7-11. Though Plaintiffs assert that

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Officer Laird “believes that he [also] informed the correctional officers of the use of pepper

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spray, kicks [and] knee strikes,” Pls.’ Opp’n at 3, Dkt. 187, Officer Laird, in fact, testified

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that he had no recollection of whether he communicated such information, Sarmiento Decl.

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Ex. E at 86:16-87:3; see also Bragg Decl. Ex C. at 80:5-12, Dkt. 195; id. Ex. B at 30:1-6.

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C/O Christensen instructed the Decedent to exit the patrol car. Christensen Decl.

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¶ 2. After the Decedent failed to comply, C/O Christensen physically pulled him from the

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vehicle and stood him up. Id. ¶ 3. During this time period, the C/Os observed that the

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Decedent was combative and yelling, and believed that he was under the influence of

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unknown drugs due to his “bizarre” behavior. Id.; Cangas Decl. ¶ 1. In response to the

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Decedent’s behavior, C/O Cangas placed the Decedent in a wrist lock, which is a standard

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procedure applied to combative prisoners. Cangas Decl. ¶ 1.

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Several C/Os then brusquely escorted the Decedent to the interior of the HCCF into

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the pre-booking area at around 4:59 p.m. Galipo Decl. Ex. 1 at 76:19-77:11; Sarmiento

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Decl. Ex. A (Camera3 at 16:58:57). At that time, the Decedent was wearing a dark long-

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sleeve hooded pullover and dark pants. Sarmiento Decl. Ex. A (Camera 3 at 16:58:57).

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Once in the pre-booking area, the C/Os pushed the Decedent against a padded “blue mat”

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which was affixed to the wall, where they held him momentarily. Galipo Decl. Ex. 1 at

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77:7-11; Sarmiento Ex. A (Camera 3 at 16:59:02).2 After leaving the pre-booking area, the

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C/Os escorted the Decedent through the processing area directly to a sobering cell, which

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Plaintiffs submitted a DVD containing footage taken by surveillance cameras
placed throughout the HCCF. Camera 1 shows the sally port (parking garage) area;
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which the Decedent was placed; Camera 10 shows the interior of the sobering cell; and
27 Camera 16 shows the processing area, adjacent to the pre-booking area. Sarmiento Decl.
Ex. A. The Court has reviewed the footage in connection with the County Defendants’
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was located nearby. The time-stamp on the video shows that the C/Os placed the Decedent

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in a sobering cell at around 5:00 p.m. Sarmiento Decl. Ex. A. The video surveillance

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footage shows several C/Os bringing the Decedent into the sobering cell, where they placed

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him on the ground and removed some of his excess, outer clothing. Sarmiento Decl. Ex. A

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(Camera 10 at 17:00). 3 There is nothing in the video footage depicting that any of the C/Os

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struck, kicked or applied any force against the Decedent, other than to restrain him briefly.

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During this time period, the Decedent remained combative, continued to yell obscenities

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and was not compliant. Meyers Decl. ¶¶ 2-3, Dkt. 3. C/O Leland Meyers, who is not a

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defendant in this action, was present and placed his taser on the Decedent’s back as a

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precautionary measure. Id. ¶ 3. However, he did not actually discharge the taser. Id.

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Placement in a sobering cell is standard HCCF operating procedure when the

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detainee is believed to be under the influence of alcohol or drugs. Morgan Decl. ¶ 1, Dkt.

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173; see also Rossiter Decl. Ex. D at 1 (procedures applicable to use of sobering cells), Dkt.

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169. Such policies also specify that, “No inmate will be placed in a sobering cell without a

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Medical Screening Assessment completed in accordance with [Policy and Procedure] H-

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002.” Rossiter Decl. Ex. D at 2. In the Decedent’s case, he was taken directly from sally

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port to a sobering cell without having medical screening or assessment having been

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completed. Though a C/O attempted to elicit medical information from the Decedent, he

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In passing, Plaintiffs vaguely assert that the Decedent’s “clothing” was removed at
some unspecified point in time. Pls.’ Opp’n at 2. However, Plaintiffs fail to provide any
citations to the record to support this assertion, in contravention of Rule 56. See Fed. R.
Civ. P. 56(c)(1)(A) (requiring specific citations to the record). In addition, the Court notes
that video surveillance recording provided to the Court by Plaintiffs shows that the
Decedent was clothed from the time of his arrival at the HCCF until his placement in the
holding cell. See Sarmiento Decl. Ex. A. The video shows that when the Decedent was
taken from the sally port into the pre-booking area, he was wearing dark pants and a dark,
long-sleeve hooded shirt or sweatshirt. Id. (Camera 3 at 16:57; Camera 16 at 16:57). In the
sobering cell, he initially is shown in the same dark clothing. Id. (Camera 10 at 16:59). For
several minutes, approximately seven officers are in the cell with the Decedent, several of
whom appear to be restraining him on the ground. Id. At 17:02, the C/Os removed what
appear to be dark-colored pants, and at 17:06 they removed what appears to be the
Decedent’s pullover. Id. at 17:02, 17:06. After all of the officers left the cell at
approximately 17:07, the Decedent is shown wearing a white long-sleeve shirt and white
full length pants. Id. When the officers found the Decedent unresponsive in his cell, he
was still clothed in that manner. Id. (Camera 10 at 18:56).
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failed to respond to their questions. Sarmiento Decl. Ex. B at 75:10-19. Thus, the C/O

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collectively decided to place the Decedent in a sobering cell to sleep off whatever substance

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was in his system. Sarmiento Decl. Ex. C at 44:11-45:10; Christensen Decl. ¶ 8; Cangas

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Decl. ¶ 5; Griffin Decl. ¶ 7. C/O Cangas claims that inmates are placed in sobering cells

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“all the time” without a medical assessment. Sarmiento Decl. Ex. C at 75:14-16.

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b)

Cell Checks

HCCF procedures specify that cell checks of detainees placed in a sobering cell be

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conducted every fifteen minutes and that their observations be recorded on an Observation

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Log. Rossiter Decl. Ex. E at 4. The Observation Log shows nine entries beginning at 1715

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(5:15 p.m.) by C/Os Griffin, Cangas, Christiansen, Morgan, Rossiter and Strong. Id. Ex. A.

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Each of the C/Os claim that they did not notice anything unusual or that would indicate that

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Decedent required medical care. Griffin Decl. ¶¶ 4, 5; Cangas Decl. ¶ 6; Christensen Decl.

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¶ 9; Morgan Decl. ¶ 4; Rossiter Decl. ¶ 9; Strong Decl. ¶ 3, Dkt. 174. The video

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surveillance footage of the Decedent while in the sobering cell, shows that shortly after the

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C/Os placed him in the cell at 16:59:49, he began rolling around on the floor and grabbing

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his head, ostensibly in distress. Sarmiento Decl. Ex. A (Camera 10). However, the

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recording stops at 17:31:41 while the Decedent is still rolling around on the ground. Id.4

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After approximately an hour and one-half gap, the recording resumes at 18:56:31. At this

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point, however, the Decedent is lying motionless, face down, directly in front of the cell

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door. Id. (Camera 10 at 18:56:31).

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While conducting his second cell check, C/O Strong noticed that the Decedent was

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lying on the floor. Strong Decl. ¶ 3. Though he was not moving, the Decedent appeared to

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be breathing. Id. Another detainee in a nearby sobering cell began yelling and screaming,

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at which point C/O Strong briefly went to the other cell to assess the situation. Id. He then

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returned to the Decedent’s cell to make sure he was okay, and found him in the same

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The County Defendants claim that the cell camera is “set up to capture movement”
and that there is an hour and one-half gap in the recording because “there was no motion in
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position as before. Id. C/O Strong banged on the door to see if the Decedent was asleep.

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Id. After receiving no response, he called two other C/Os and entered the cell, where they

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found the Decedent non-responsive. Id. C/O Strong obtained an oxygen tank and mask,

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which were utilized in conjunction with Cardio Pulmonary Resuscitation efforts. Id. A

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nurse arrived within minutes and took over efforts to revive the Decedent, but to no avail.

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Id. The County Coroner’s autopsy report later concluded that the Decedent died of acute

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subdural hematoma (i.e., pooling of blood on the surface of the brain) caused by blunt force

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trauma. Sarmiento Decl. Ex. I at 3.

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B.

PROCEDURAL HISTORY

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Plaintiffs, as survivors-in-interest, filed the instant action against the City

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Defendants and the County Defendants based on their respective roles in the underlying

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events of August 9, 2007. The operative pleading is the First Amended Complaint (“FAC”)

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filed on May 21, 2009, which alleges eight causes of action, styled as follows: (1) violation

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of 42 U.S.C. § 1983 based on the use of excessive force against the City Defendants;

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(2) violation of § 1983 for deliberate indifference to serious medical needs against all

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Defendants; (3) supervisory liability against the City and the County under 42 U.S.C.

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§ 1983; (4) assault and battery against the City Defendants; (5) violation of California

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Government Code § 845.6 against the City Defendants; (6) wrongful death against all

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Defendants; (7) survival damages against all Defendants; and (8) violation of § 1983 for

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interference with familial association under the fourteenth amendment against all individual

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Defendants.

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Trial was scheduled to commence on January 10, 2011, with the pretrial conference

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to take place on December 14, 2010. Dkt. 139. In anticipation of the pretrial conference,

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the parties filed thirty-three motions in limine, which the Court adjudicated in a written

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order issued on December 14, 2010. Dkt. 147. On the same date, the Court held a pretrial

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conference, at which time the Court vacated the trial date and referred the matter to

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Magistrate Judge Zimmerman for a mandatory settlement conference. Dkt. 148, 149. After

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the case did not settle, the Court rescheduled the pretrial conference to September 6, 2011,
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and set a new trial date of September 12, 2011. Dkt. 161. Since the trial date was not

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scheduled to commence for several months, the Court issued a scheduling order granting

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Defendants leave to file motions for summary judgment. Dkt. 162.5 In accordance with the

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Court’s scheduling order, the County Defendants filed a motion for summary judgment

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with respect to all claims alleged in the FAC. Dkt. 167. The City Defendants have filed a

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motion for partial summary judgment with respect to some, but not all, of the claims

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alleged against them. Dkt. 178.6 The motions have been fully briefed and are ripe for

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adjudication.

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II.

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LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that a party may move for summary

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judgment on some or all of the claims or defenses presented in an action. Fed. R. Civ. P.

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56(a)(1). “The court shall grant summary judgment if the movant shows that there is no

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

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law.” Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The movant

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bears the initial burden of demonstrating the basis for the motion and identifying the

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portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions

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on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts

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of materials in the record”). If the moving party meets this initial burden, the burden then

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shifts to the non-moving party to present specific facts showing that there is a genuine issue

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for trial. See Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586-87 (1986).

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The Court had previously declined to hear the County Defendants’ motion for
summary judgment beyond the law and motion cut-off. Dkt. 80.

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Plaintiffs filed evidentiary objections to the declarations of Dale Walker and Adam
Laird, Dkt. 202, while the County Defendants filed objections to the declaration of Roger
Clark, Dkt. 196. However, the Court’s ruling is not predicated upon the evidence in
28 dispute. Therefore, the objections are overruled as moot.
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“On a motion for summary judgment, ‘facts must be viewed in the light most

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favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.’”

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Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009) (quoting in part Scott v. Harris, 550 U.S.

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372, 380 (2007)). “Only disputes over facts that might affect the outcome of the suit under

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the governing law will properly preclude the entry of summary judgment. Factual disputes

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that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. A

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factual disputes is genuine if it “properly can be resolved in favor of either party.” Id. at

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250. Accordingly, a genuine issue for trial exists if the non-movant presents evidence from

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which a reasonable jury, viewing the evidence in the light most favorable to that party,

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could resolve the material issue in his or her favor. Id. “If the evidence is merely

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colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-

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50 (internal citations omitted). Only admissible evidence may be considered in ruling on a

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motion for motion for summary judgment. Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.

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2002).

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III.

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COUNTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.

EXCESSIVE FORCE
1.

Applicable Law

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The County Defendants move for summary judgment on Plaintiffs’ first claim for

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excessive force, pursuant to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff

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must allege and prove two essential elements: (1) that a right secured by the Constitution or

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laws of the United States was violated, and (2) that the alleged violation was committed by

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a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff

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can show that the defendant proximately caused the deprivation of a federally protected

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right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another

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of a constitutional right within the meaning of § 1983 if he or she engages in an affirmative

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act, participates in another’s affirmative act or omits to perform an act which he is legally

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required to do, that causes the deprivation of which the plaintiff complains. Id. at 633.
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Allegations of excessive force are examined under the Fourth Amendment’s

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prohibition on unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 394 (1989).

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“[T]he reasonableness inquiry in an excessive force case is an objective one: the question

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is whether the officers’ actions are objectively reasonable in light of the facts and

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circumstances confronting them, without regard to their underlying intent or motivation.”

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Id. at 397. Under Graham, the reasonableness of the officer’s conduct is based on the

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consideration of three factors: (1) the severity of the crime at issue, (2) whether the suspect

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poses an immediate threat to the police or others, and (3) whether the suspect is fleeing or

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resisting arrest. See Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010). In

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considering an excessive force claim, the court is to balance “the nature and quality of the

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intrusion on the individual’s Fourth Amendment interests against the countervailing

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governmental interests at stake.” Graham, 490 U .S. at 396; Lolli v. County of Orange, 351

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F.3d 410, 415 (9th Cir. 2003).

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2.

Analysis

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As a threshold matter, the FAC does not allege a claim for excessive force against

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any of the County Defendants. The only defendants named in Plaintiffs’ excessive force

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claim are the individual City police officers. See FAC ¶¶ 32, 40. Plaintiffs have not

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requested or been granted leave to amend their pleadings to allege an excessive force claim

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against the County Defendants. Nor can Plaintiffs belatedly attempt to interject an

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excessive force claim into the action by presenting such allegations in their opposition

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brief. See Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir. 2006)

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(refusing to allow the plaintiff to assert new specific factual allegations in support of a

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claim when they were “presented for the first time in [the plaintiff’s] opposition to

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summary judgment”); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th

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Cir. 2006) (“Simply put, summary judgment is not a procedural second chance to flesh out

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inadequate pleadings.”) (quotation marks omitted). As such, the Court finds that no

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excessive force claim is pending against the County Defendants.

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The question remains whether the Court should permit Plaintiffs to proceed on a

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claim for excessive force against the County Defendants, based on the allegations contained

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in their opposition brief. “[W]hen issues are raised in opposition to a motion [for] summary

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judgment that are outside the scope of the complaint, the district court should … construe[]

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the matter raised as a request pursuant to rule 15(b) of the Federal Rules of Civil Procedure

6

to amend the pleadings out of time.” Apache Survival Coalition v. United States, 21 F.3d

7

895, 910 (9th Cir. 1994) (internal brackets and quotation marks omitted). Leave to amend

8

under Rule 15(b) is a matter of the Court’s discretion, based upon consideration of the

9

following factors: “bad faith, undue delay, prejudice to the opposing party, and the futility

10

of amendment.” Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). For the reasons that

11

follow, the Court finds that it would be futile to allow Plaintiffs to proceed on an excessive

12

force claim against the County Defendants.

13

Plaintiffs argue that C/O Christensen used excessive force by physically removing

14

the Decedent from Officer Laird’s patrol car, and that both he and C/O Cangas used

15

excessive force by placing the Decedent in wrist holds and subsequently pushing him into

16

the “blue mat” in the pre-booking area. Pls.’ Opp’n at 4, 17-18.7 However, C/O

17

Christensen removed the Decedent from the patrol car only after the Decedent refused to

18

comply with his command to exit the vehicle. Christensen Decl. ¶ 3. There is no evidence

19

that the amount of force used by C/O Christensen was excessive or abusive. In fact, by all

20

accounts, it is undisputed that C/O Christensen simply brought the Decedent to a standing

21

position. Galipo Decl. Ex. 1 at 76:15-21. The use of compliance holds was justified and

22

reasonable given the uncontroverted evidence that the Decedent was obstructive, aggressive

23

and non-compliant. Sarmiento Decl. Ex. B at 25:3-19; id. Ex. C at 36:5-7; id. Ex. D at

24

62:8-21; Christensen Decl. ¶¶ 3-5; Cangas Decl. ¶ 1. As for pushing the Decedent against

25

the blue mat in the pre-booking area, no reasonable jury would find, based on the facts

26
7

Though not described by the parties in their papers, the “blue mat” is depicted in
the video surveillance footage, and appears to be a large, pliable mat affixed against the
wall in the room adjoining the parking garage to the HCCF. See Sarmiento Decl. Ex. A
28 (Camera 3 at 16:57).
27

- 12 -

1

presented, including the video surveillance footage, that the C/Os violated the Decedent’s

2

constitutional rights based on this conduct.

3

Under the totality of the circumstances, the Court finds that C/Os Cangas,

4

Christensen and Griffin’s conduct did not amount to a constitutional violation. See, e.g.,

5

Luchtel v. Hagemann, 623 F.3d 975, 980-82 (9th Cir. 2010) (affirming summary judgment

6

for police officers who pinned the plaintiff to the ground while handcuffing her where it

7

was undisputed that she was resisting arrest); Draper v. Reynolds, 369 F.3d 1270, 1278 (9th

8

Cir. 2004) (no excessive force when officer used Taser to effect the arrest of an

9

uncooperative suspect for a traffic violation); Arpin v. Santa Clara Valley Transp. Agency,

10

261 F.3d 912, 921-22 (9th Cir. 2001) (no excessive force when physical force was used to

11

handcuff suspect who refused to cooperate with an officer’s requests for identification and

12

stiffened her arm and attempted to pull free from the officer); Forrester v. City of San

13

Diego, 25 F.3d 804, 807-808 (9th Cir. 1994) (finding no excessive force when painful

14

compliance holds were used against passively resisting demonstrators). As for the other

15

HCCF officers, there is no evidence or specific allegation that they used any force on the

16

Decedent. See Griffin Decl. ¶ 4, Dkt. 172; Strong Decl. ¶ 3; Dkt. 174; Morgan Decl. ¶¶ 4,

17

7, Rossiter Decl. ¶ 4.

18

Plaintiffs next contend that the County Defendants used excessive force on the

19

Decedent when they placed him in the sobering cell and allegedly used a taser on him.

20

Pls.’ Opp’n at 6-7, 17. Again, since these claims are not alleged in the pleadings, they are

21

not properly before the Court. See Schneider v. Calif. Dep’t of Corrections, 151 F.3d 1194,

22

1197 n.1 (9th Cir. 1998). But even if they were, they are completely lacking in evidentiary

23

support. As discussed above, the Decedent was uncooperative and disruptive from the time

24

he arrived at the HCCF until his placement in the sobering cell. The Court’s review of the

25

surveillance footage confirms that the C/Os application of compliance holds to restrain the

26

Decedent was justified and reasonable, and no reasonable jury would conclude otherwise.

27

Lastly, with regard to the taser, Plaintiffs have presented no evidence to controvert

28

C/O Myers’ statement that he did not actually use the taser on the Decedent. Tellingly,
- 13 -

1

Plaintiffs do not directly confront C/O Myer’s declaration, and instead, rely on the

2

declaration of their use of force expert, Roger Clark. Clark Decl. ¶ 18, Dkt. 188. Mr. Clark

3

opines that the video surveillance recording made while the Decedent was in the holding

4

cell “shows that the HCCF Officers use of a C26 Taser.” Id. However, after reviewing the

5

surveillance video, the Court finds that there is no evidence that a taser was used on the

6

Decedent. Sarmiento Decl. Ex. A. To the contrary, after the correctional officers left the

7

holding cell, the video shows that the Decedent continued to move about the cell, which

8

further supports the County Defendants’ contention that C/O Myers did not activate his

9

taser. In addition, there is no mention in the autopsy report of the possibility that a taser

10

had been used on the Decedent. Id. Ex. I. Based on the record presented, the Court finds

11

no factual basis to support Plaintiffs’ unpled assertion that the County Defendants’ used a

12

taser on the Decedent and that such use amounts to excessive force.

13

In sum, the Court finds no basis for Plaintiffs’ putative claim for excessive force

14

against the County Defendants. Accordingly, Plaintiffs’ request for leave to amend under

15

Rule 15(b) is DENIED, and the County Defendants’ motion for summary judgment with

16

respect to Plaintiffs’ first claim for relief is DENIED AS MOOT.

17
18
19

B.

DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS
1.

Overview

A pretrial detainee has a constitutional right to adequate medical care, which derives

20

from the substantive due process clause of the Fourteenth Amendment. Gibson v. County

21

of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). “Deliberate indifference is a

22

high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To establish

23

a claim for deliberate indifference to serious medical needs, the plaintiff must show (1) “a

24

serious medical need by demonstrating that ‘failure to treat a prisoner’s condition could

25

result in further significant injury or the unnecessary and wanton infliction of pain,” and

26

(2) that “the defendant’s response to the need was deliberately indifferent.” Jett v. Penner,

27

439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations and citations omitted). The

28

second prong of this standard “is satisfied by showing (a) a purposeful act or failure to
- 14 -

1

respond to a prisoner’s pain or possible medical need and (b) harm caused by the

2

indifference.” Id. Indifference “may appear when prison officials deny, delay or

3

intentionally interfere with medical treatment, or it may be shown by the way in which

4

prison physicians provide medical care.” Id.

5

The test for determining the defendant’s awareness of a serious medical need is a

6

subjective one. Toguchi, 391 F.3d at 1057. Thus, the mere presence of circumstances from

7

which a reasonable person could infer “an excessive risk to inmate health or safety” is

8

insufficient; rather, the official must actually make the inference and disregard it. Farmer

9

v. Brennan, 511 U.S. 825, 837 (1994)). “Whether a prison official had the requisite

10

knowledge of a substantial risk is a question of fact subject to demonstration in the usual

11

ways, including inference from circumstantial evidence,… and a factfinder may conclude

12

that a prison official knew of a substantial risk from the very fact that the risk was

13

obvious.” Id. at 842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003)

14

(“Much like recklessness in criminal law, deliberate indifference to medical needs may be

15

shown by circumstantial evidence when the facts are sufficient to demonstrate that a

16

defendant actually knew of a risk of harm.”). Mere negligence, or even gross negligence, is

17

insufficient to establish deliberate indifference. Toguchi, 391 F.3d at 1060. If the

18

defendant “should have been aware of the risk,” but nevertheless was not actually aware,

19

the defendant “has not violated the Eighth Amendment, no matter how severe the risk.” Id.

20

at 1057.

21

Here, the County Defendants contend that the Decedent never requested medical

22

treatment and deny that they were aware that the Decedent required immediate medical

23

attention. Cangas Decl. ¶ 3; Christensen Decl. ¶ 10; Griffin Decl. ¶ 6; Morgan Decl. ¶ 8;

24

Strong Decl. ¶ 7. In response, Plaintiffs counter that the C/Os “knew or should have

25

known” that the Decedent was in need of medical care based on his “obvious” injuries,

26

awareness that he had been beaten by the City police officers and their observations of the

27

Decedent while in their custody. Pls.’ Opp’n at 2, 11-12. To properly evaluate a deliberate

28

indifference claim involving multiple parties, the Court must address the evidence as it
- 15 -

1

relates specifically to each individual defendant. See Leer, 844 F.3d at 634 (requiring

2

“specific facts as to each individual defendant’s deliberate indifference”). Ignoring this

3

requirement, Plaintiffs conflate the analysis of all individual County Defendants, and

4

broadly assert that the Decedent’s need for medical attention was manifest. Because of the

5

infirmity of Plaintiffs’ analytical approach, the Court addresses the evidence as to each

6

County Defendant.8

7
8
9

1.

C/O Griffin

At the time of the incident, C/O Griffin was a Correctional Supervisor. Griffin Decl.
¶ 1. He, along with C/Os Christensen and Cangas, escorted the Decedent from the sally

10

port into the pre-booking area. Id. ¶ 3. Since the other C/O’s were tending to the

11

Decedent, however, C/O Griffin left the pre-booking area to go the processing area, to

12

ensure that someone was present to answer the telephones. Sarmiento Decl. Ex. D at

13

119:2-11. At some point after the Decedent was brought to the sobering cell, C/O Griffin

14

went down the hall and “looked in” as the other C/Os were removing the Decedent’s

15

handcuffs and outer clothing. Id. at 119:12-24. C/O Griffen also made the initial entry on

16

the Observation Log at 1715, with the notation, “Admitted – extremely combative.”

17

Rossiter Decl. Ex. A.

18

Plaintiffs contend that C/O Griffen was deliberately indifferent in failing to ensure

19

that the Decedent was medically screened or assessed, given the Decedent’s “obvious”

20

injuries. Pls.’ Opp’n at 2, 13, 14. This contention is misplaced. Although the Decedent

21

may not have been medically screened or assessed in accordance with HHCF policy, such

22

failure, standing alone, does not establish a constitutional violation. See Estate of Ford v.

23

Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002) (“Failure to follow prison procedures …

24
8

The Court also notes whether the individual County Defendants “knew or should
have known” of the Decedent’s immediate need for medical care is insufficient to establish
26 a claim for deliberate indifference. Farmer, 511 U.S. at 837, 842. Rather, the Court must
determine whether Plaintiffs’ showing is sufficient to demonstrate a triable issue of fact
27 whether the individual County Defendants were both aware of facts from which the
inference could be drawn that a substantial risk of serious harm existed, and actually drew
28 such an inference. Id. at 837.
25

- 16 -

1

was certainly negligent; but negligence, or failure to avoid a significant risk that should be

2

perceived but wasn’t, ‘cannot be condemned as the infliction of punishment.’”) (quoting in

3

part Farmer, 511 U.S. at 838). As for the Decedent’s injuries, Plaintiffs have failed to

4

present any evidence that such injuries were sufficiently obvious during the time period that

5

C/O Griffin had contact with the Decedent that a jury could infer that he knew that the

6

Decedent required immediate medical attention. Except for the upper lip abrasion and cuts

7

on his right hand, the Decedent’s injuries were covered by his clothing from the time of his

8

arrival at the HCCF until he was found unresponsive in the sobering cell. As for visible

9

injuries, Plaintiffs have made no showing that they were sufficiently serious or noticeable

10

such that he or any other C/O would be aware that the Decedent had a serious medical

11

condition requiring immediate attention.9

12

Next, Plaintiffs contend that C/O Griffin was aware of Plaintiffs’ serious medical

13

needs based on Officer Laird’s having “informed [him] of the use of pepper spray, kick,

14

knee strikes, and baton strikes.” Pls.’ Opp’n at 11. The evidentiary citations provided by

15

Plaintiffs do not support these assertions. During his deposition, Officer Laird testified

16

repeatedly that he did not recall mentioning to anyone at the HCCF about the Decedent

17

having been kicked, subjected to knee strikes or sprayed with pepper spray. Id. Ex. E at

18

86:1-87:22.10 Nor is there evidence demonstrating C/O Griffin’s awareness that the City

19

police officers kicked and used knee strikes against the Decedent. Indeed, the Booking

20

Request form prepared by Officer Laird and provided to HCCF staff makes no mention that

21
22
23
24
9

Plaintiffs claim that there were injuries to the Decedent’s forehead, but there is no
mention of such injuries in the autopsy report. Sarmiento Decl. Ex. I. Such bruising also is
26 not apparent from the autopsy photographs. Id. Ex. J.
25

10

Likewise, C/O Christensen recalls only that he was informed about the baton
strikes, Sarmiento Decl. Ex. C at 29:15-22, but could not “remember hearing anything
28 about pepper spray,” id. at 30:7-11.
27

- 17 -

1

the Decedent had been subjected to any force or that he required medical attention.

2

Christensen Decl. Ex. A.11

3

Equally misplaced is Plaintiffs’ attempt to make much of C/O Griffin’s

4

acknowledgment that he recognized that the Decedent had previously been housed at the

5

HCCF in an area reserved for persons with mental issues. Sarmiento Decl. Ex. D at 91:10-

6

92:14. The Ninth Circuit has recognized that the mere awareness of a prisoner’s mental

7

health status is insufficient to support the inference that the prison official was necessarily

8

aware of an immediate need for medical attention. See Simmons v. Navajo County, Ariz.,

9

609 F.3d 1011, 1018 (9th Cir. 2010) (holding that nurse who was aware that the decedent

10

suffered from depression and previously attempted suicide and was at risk for making

11

another attempt to commit suicide did not support inference that she knew that the decedent

12

was at an “acute” risk of harm). In addition, given that the Decedent died from injuries

13

allegedly resulting from the force applied by the individual City Defendants, it is unclear

14

how the C/Os’ alleged awareness of the Decedent’s mental health issues is sufficient to

15

establish their subjective awareness of an acute need to address his physical injuries.

16

More problematic, however, is the evidence concerning Decedent’s placement in a

17

sobering cell and the subsequent cell checks. HCCF’s Internal Policies and Procedures

18

specify that “[n]o inmate will be placed in a sobering cell without a Medical Receiving

19

Screening assessment completed in accordance with [HCCF internal Policies and

20

Procedures].” Rossiter Decl. Ex. D. The Policies and Procedures governing “Safety

21

Checks” specifies that detainees placed in sobering cells should be checked every fifteen

22

minutes. Id. Ex. E at 3. C/Os are directed to conduct safety checks through direct visual

23
11

24
25
26
27
28

Also misplaced is Plaintiffs’ related contention regarding Officer Whitmer.
Notwithstanding Plaintiffs’ claims to the contrary, Officer Whitmer did not testify at his
deposition that “[he] believed that [the Decedent] should have been medically cleared.”
Pls.’ Opp’n at 11, 4). Rather, Officer Whitmer stated that he thought the Decedent would
be medically cleared by HCCF staff because he was being “combative and resistive.”
Sarmiento Decl. Ex. P at 107:4-20. In any event, the salient question is what the C/Os
subjectively knew, and Officer Whitmer’s personal beliefs have no bearing on their state of
mind—particularly given the lack of any evidence establishing that any information was
conveyed by Officer Whitmer (who did not transport the Decedent to the HCCF) to C/O
Griffin or anyone else at the HCCF.
- 18 -

1

observation in order to allow them “to physically see and hear if an inmate is OK and not

2

having difficulty breathing.” Id. at 1. The C/O must record his or her observations on the

3

“Observation Log” posted outside the cell. Id. Ex. E at 3. The observations are to “reflect

4

the specific activity presented by the inmate. Id.

5

Here, the Court finds that there is a triable issue of fact regarding whether C/O

6

Griffin was deliberately indifferent to the Decedent’s serious medical needs. At 1715 (5:15

7

p.m.), C/O Griffin made his the initial entry into the Observation Log, where he noted,

8

“Admitted—extremely combative.” The video at 17:15 shows C/O Griffin looking through

9

the window in the Decedent’s cell door. The contemporaneous surveillance footage

10

showing the Decedent inside the cell shows him rolling around on the ground throughout

11

the cell while grabbing his head. Sarmiento Decl. Ex. A (Cameras 6, 10 at 17:15:20). Yet,

12

C/O Griffin did not open the cell door to check on the Decedent, summon medical

13

assistance or engage in any other action to ensure that the Decedent was “OK,” as required

14

by the HCCF’s internal policies. Thus, construing the evidence in a light most favorable to

15

Plaintiffs, the Court finds that a trier of fact could conclude that C/O Griffin was aware of,

16

but ignored, the Decedent’s need for immediate medical attention. The Court therefore

17

DENIES the County Defendants’ motion for summary judgment with respect to Plaintiffs’

18

claim for deliberate indifference against C/O Griffin.

19
20

2.

C/O Cangas

C/O Cangas was present in the sally port to take custody of the Decedent, and later

21

conducted two cell checks. The Observation Log indicates that C/O Cangas conducted his

22

first cell check at 1738 (5:38 p.m.), and noted as his observation, “Moving OK.” Rossiter

23

Decl. Ex. A. This cell check is documented by the surveillance recordings taken from

24

Camera 6 (hallway in front of the cell) and Camera 10 (interior of the cell). At about

25

17:29:17 on the recording, Camera 10 shows C/O Cangas walking up to the Decedent’s cell

26

and peering into to cell through the narrow window in the door. Sarmiento Decl. Ex. A

27
28
- 19 -

1

(Cameras 10 at 17:29:17).12 At the same time, the camera from inside the cell shows C/O

2

Cangas at the cell door window. Id. (Camera 6 at 17:29:17). While C/O Cangas is at the

3

door, the camera shows the Decedent rolling around and writhing on the floor in what

4

appears to be a violent or distressed manner. Id. But instead of opening the door to check

5

on the Decedent, C/O Cangas is seen walking away from the cell and making a written

6

entry on a nearby bulletin board.

7

C/O Cangas is then seen returning to the cell window, where the Decedent still is in

8

apparent distress, only to leave again and return to the bulletin board. Id. (Camera 6, 10 at

9

17:29:51). While C/O Cangas is at the bulletin board the second time, another C/O, who

10

also was at the board area with C/O Cangas, is shown walking away, down the hall past the

11

Decedent’s cell. While the unidentified C/O is about to pass the Decedent’s cell door, he

12

stops, turns his head towards the Decedent’s cell, and then walks up to the cell door to look

13

inside. Id. (Camera 10 at 17:29:58). Moments later, he is joined by C/O Cangas, who also

14

looks through the cell door window. Id. After briefly observing the Decedent continue to

15

roll around, both of the C/Os walk away from the cell door. Id.

16

Construing the evidence in a light most favorable to the Plaintiffs, the Court finds

17

that there are triable issues of fact regarding whether C/O Cangas was deliberately

18

indifferent to the Decedent’s serious medical needs. On three occasions, C/O Cangas

19

looked through the cell door and could see that the Decedent was in apparent physical

20

distress, but did nothing in response. Notably, the surveillance video shows that the

21

unidentified C/O was about to walk past the Decedent’s cell, but suddenly stopped and

22

walked up to look into the cell, as if something had caught his attention. It was at this

23

juncture that C/O Cangas joined the other C/O and observed the Decedent in apparent

24

distress for a third time. A reasonable trier of fact could conclude from the video that both

25

C/Os, and C/O Cangas in particular, were subjectively aware that the Decedent was in

26
12

Plaintiffs contend, and the County Defendants do not dispute, that the time stamps
on some of the surveillance recordings do not correspond to the times entered on the
Observation Log. Thus, for example, the entry on the Observation Log reads “1738,” while
28 the surveillance camera shows “17:29.”
27

- 20 -

1

distress. Accordingly, the Court DENIES the County Defendants’ motion for summary

2

judgment with respect to C/O Cangas.13

3

3.

C/O Christensen

4

Like C/Os Griffin and Cangas, C/O Christensen was present in the sally port to

5

receive custody of the Decedent. The record shows that after the Decedent refused to

6

comply with his command to exit the patrol car, C/O Christensen physically removed the

7

Decedent from the vehicle and escorted him with other C/O’s into the HCCF, where he was

8

placed in a sobering cell. C/O Christensen claims that he had no knowledge that the

9

Decedent needed medical attention, and believed that the Decedent’s obstructive and

10

“bizarre” behavior was attributable to his being under the influence of an unknown drug.

11

Christensen Decl. ¶ 3. In addition, C/O Christensen states that he performed one cell check

12

“by looking into his cell through the window in the door,” and “observed [the Decedent]

13

sitting and saw nothing that made [him] believe that he needed medical care.” Christensen

14

Decl. ¶ 9.

15

Although C/O Christensen may not have known of Decedent’s particular injuries or

16

that he had been subjected to physical trauma, there is circumstantial evidence that C/O

17

Christensen knew that Decedent needed medical treatment based on his behavior while in

18

the sobering cell. C/O Christensen made a notation on the Observation Log at “1755” (5:55

19

p.m.) that he saw the Decedent “moving” and “breathing.” Rossiter Decl. Ex. A; Sarmiento

20

Decl. Ex. C at 54:10-56:22. However, at 1755, the video surveillance footage is blank,

21

which Defendants have attributed to “no motion in the cell.” Sarmiento Decl. Ex. N at

22

17:10-21. Defendants offer no explanation for this discrepancy, other than to dismiss it as

23

being nothing more than a “subjective call.” Defs.’ Reply at 8. That “subjective call,”

24

however, is more appropriately decided by the trier of fact, rather than by the Court on a

25
13

C/O Cangas’ second entry is made at 1752 (5:52 p.m.), which states,
“Talking/Moving OK.” Id. However, there is no corresponding video surveillance footage,
27 as the second cell check took place during the one and a half-hour gap, when, according to
the County Defendants, there was “no motion” in the cell. This factual discrepancy further
28 supports the denial of summary judgment for C/O Cangas.
26

- 21 -

1

motion for summary judgment. Thus, the Court DENIES the County Defendants’ motion

2

for summary judgment as to C/O Christensen.

3
4

4.

C/O Morgan

C/O Morgan was not on duty when the Decedent arrived at the HCCF, and did not

5

see him until she conducted her first cell check at 1807 (6:07 p.m.). Morgan Decl. ¶ 3;

6

Rossiter Decl. Ex. A. At a point in time not specified by the parties, C/O Morgan

7

processed the Decedent’s booking paperwork and noticed that “there was no medical form

8

in the bucket.” Sarmiento Decl. Ex. L at 45:8-21. There were no other C/Os present for

9

C/O Morgan to ascertain the reason a medical screening form was not included with his

10

booking documentation. Id. at 45:19-24. Nonetheless, she advised her supervisor of this

11

fact, as she was trained to do. Id. at 45:11-49:6. C/O Morgan could not recall when she

12

began processing the Decedent’s booking paperwork or notified her supervisor regarding

13

the missing medical form, or whether either occurred prior or subsequent to her cell check

14

of the Decedent at 6:07 p.m. Id. at 46:9-19.14

15

Plaintiffs fault C/O Morgan for failing to request a medical assessment when she

16

conducted her cell check. Pls.’ Opp’n at 24. C/O Morgan denies observing anything to

17

suggest that the Decedent was in distress when she checked on him at 6:07 p.m. During her

18

deposition, C/O Morgan stated that she looked through the cell door and saw him lying on

19

his side, and that she could see his chest “rising and falling.” Sarmiento Decl. Ex. L at

20

65:17-70:5. Using her toe, C/O Morgan then tapped on the cell door. Id. at 70:14-20. C/O

21

Morgan claims she observed “movement” by the Decedent and correspondingly entered the

22

notation “moving” on the Observation Log. Id.; Rossiter Decl. Ex. A. However, there is a

23
24
25
26
27
28

14

C/O Morgan testified during her deposition that upon seeing that no medical
screening form had been prepared, she started to fill out the form by indicating his name
and date. Sarmiento Decl. Ex. L at 53:2-6. The form was later signed by Nurse Laurie
Grow. Id. at 53:24-54:19. In their reply, the County Defendants assert that Nurse Grow
“did do an assessment within one hour of [the Decedent] being placed in the sobering cell.”
County Defs.’ Reply at 8. No citation to the record is provided to support this factual
assertion, as required by Rule 56(c)(1)(A). In addition, Nurse Grow denies that she
medically screened or assessed the Decedent. Id. Ex. K at 47:15-20 (“I did not do a
prescreening on him”); id. at 74:9-14 (“I never medically assessed Mr. Cotton that day.”).
- 22 -

1

triable issue of fact as to the veracity of her purported observations. At 6:07 p.m., the

2

sobering cell surveillance camera was not in operation, ostensibly because there was “no

3

motion” in the cell. Sarmiento Decl. Ex. N at 17:10-19. The County Defendants’

4

explanation of why the surveillance camera was not recording the Decedent in the cell

5

arguably conflicts with C/O Morgan’s observation, as reflected in the Observation Log. In

6

view of this unexplained discrepancy, the Court DENIES Defendants’ motion for summary

7

judgment with respect to C/O Morgan.

8

5.

9

C/O Strong

On the day of the incident, C/O Strong’s shift began at 5:45 p.m. with an initial

10

briefing. Strong Decl. ¶ 3. At the briefing, there was no mention that the Decedent had

11

suffered any injuries. Id. ¶ 3. C/O Strong first saw the Decedent in the sobering cell at

12

6:34 p.m. lying on his stomach. Id. He could see the Decedent breathing, and assumed that

13

he was sleeping off whatever resulted in his placement in the holding cell. Id. On the

14

Observation Log, C/O Strong made the notation “on stomach/breathing.” Rossiter Decl.

15

Ex. A.

16

He next saw the Decedent at 7:02 p.m. lying on the floor, near the cell door. Strong

17

Decl. ¶ 3. C/O Strong’s attention was momentarily diverted to another detainee. Id. Upon

18

his return to the Decedent’s cell, C/O Strong noticed that the Decedent had not appeared to

19

have moved from the location where he observed him during the first cell check. Id. At

20

that point, C/O Strong banged on the door; when he received no response, he summoned

21

additional correctional officers. Id. The officers opened the cell door, pulled the Decedent

22

out of the cell, and a staff nurse began resuscitation efforts. Id. At no time was C/O Strong

23

aware that the Decedent was in distress. Id.

24

Plaintiffs fail to specifically discuss the basis of C/O Strong’s liability, other than to

25

note in passing that he allegedly failed to ensure that the Decedent was medically screened

26

or assessed. Pls.’ Opp’n at 12, 19. As an initial matter, Plaintiffs fail to establish that C/O

27

Strong was aware that the Decedent had not been screened or assessed. But even if they

28

had, there is no evidence that such knowledge was sufficient for C/O Strong to conclude
- 23 -

1

that the Decedent was in need of immediate medical care, and ignored such need. Rather,

2

the record shows that C/O Strong was not aware of any medical issues relating to the

3

Decedent.15 Because Plaintiffs have failed to demonstrate any triable issues of fact

4

regarding C/O Strong’s liability for deliberate indifference, the Court GRANTS summary

5

judgment in his favor.

6

C.

7

As an alternative matter, the County Defendants contend that they are entitled to

QUALIFIED IMMUNITY

8

qualified immunity. County Defs.’ Mot. at 22-23. “Qualified immunity shields an officer

9

from suit when she makes a decision that, even if constitutionally deficient, reasonably

10

misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen,

11

543 U.S. 194, 198 (2004). The issue of qualified immunity generally entails a two-step

12

process, which requires the court to first determine whether the defendant violated a

13

constitutional right and then to determine whether that right was clearly established.

14

Saucier v. Katz, 533 U.S. 194, 201-202 (2001). In Pearson v. Callahan, 555 U.S. 223

15

(2009), the Supreme Court modified the Saucier test and “gave courts discretion to grant

16

qualified immunity on the basis of the ‘clearly established’ prong alone, without deciding in

17

the first instance whether any right had been violated.” James v. Rowlands, 606 F.3d 646,

18

650-51 (9th Cir. 2010) (discussing Saucier standard after Pearson).

19

The County Defendants contend that Plaintiffs cannot meet the first prong of the

20

Saucier test on the grounds that they were subjectively unaware that the Decedent had a

21

serious medical need requiring immediate attention. Defs.’ Mot. at 22.16 However, the

22

facts germane to the individual County Defendants’ actual awareness are in dispute. If

23

there are disputed issues of material fact underlying the issue of qualified immunity, the

24

court must adopt the version of the facts presented by, and draw all reasonable inferences in

25
15

26

Unlike the other individual County Defendants, C/O Strong did not report on the
Observation Log that the Decedent was moving in his cell, and Plaintiffs do not argue that
such notation conflicts with the video surveillance recordings.

27
16

28

The County Defendants do not dispute that the Decedent’s Fourth Amendment
rights in this context were clearly established at the time of the incident.
- 24 -

1

favor of, the non-movant. Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). Here,

2

as set forth above, a jury could find that the individual County Defendants were

3

deliberately indifferent to the Decedent’s serious medical needs. Accordingly, the County

4

Defendants’ motion for summary judgment is DENIED, insofar as it is based on the

5

doctrine of qualified immunity. See Espinosa v. City and County of San Francisco, 598

6

F.3d 528, 533 (9th Cir. 2010) (“The district court properly denied defendants’ summary

7

judgment motion on whether they were entitled to qualified immunity for the warrantless

8

entry and search of the apartment because there are questions of fact regarding the first

9

prong of the qualified immunity test, i.e., whether the officers violated Sullivan’s Fourth

10

Amendment rights.”).

11

D.

12

There is no respondeat superior liability under 42 U.S.C. § 1983. Monell v. Dep’t of

CLAIMS AGAINST THE COUNTY

13

Soc. Serv. of N.Y., 436 U.S. 658, 692 (1978). Instead, to establish municipal liability

14

under § 1983, the plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused the

15

plaintiff’s injury.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). In “limited

16

circumstances,” a plaintiff may establish such liability based on a “failure to train” claim.

17

City of Canton v. Harris, 489 U.S. 378, 387 (1989). “[T]he inadequacy of police training

18

may serve as a basis for § 1983 liability only where the failure to train amounts to

19

deliberate indifference to the rights of persons with whom the police come into contact.”

20

City of Canton, 489 U.S. at 388. “Failure to train may amount to a policy of ‘deliberate

21

indifference,’ if the need to train was obvious and the failure to do so made a violation of

22

constitutional rights likely.” Dougherty v. City of Covina, -- F.3d --, 2011 WL 3583404, at

23

*6 (9th Cir. Aug. 16, 2011) (citing City of Canton, 489 U.S. at 390).

24

Plaintiffs fail to proffer specific evidence regarding the County’s training policies,

25

any particular deficiencies in those policies or the particular training received by the

26

individual County defendants, pursuant to such policies. See City of Canton, 489 U.S. at

27

391 (holding that “the identified deficiency in a city’s training program must be closely

28

related to the ultimate injury”); Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir.
- 25 -

1

2007) (requiring that the municipality had a training policy that amounts to deliberate

2

indifference to the constitutional rights of the persons with whom its employees are likely

3

to come into contact).17 Instead, Plaintiffs rely almost entirely on the report of Karen

4

Lovie, Jail Compliance Officer for the HHCF, who investigated the Decedent’s death and

5

concluded, inter alia, that HCCF personnel failed to conduct a medical prescreening and

6

performed cell checks in a manner inconsistent with HCCF policy. Pl.’s Opp’n at 21-22.

7

Though not entirely clear, Plaintiffs appear to argue that had the C/Os been trained

8

properly, they would have followed the HCCF’s policies. Id. However, the lack of

9

training, standing alone, does not amount to a constitutional violation. See City of Canton,

10

489 U.S. at 390-391 (“That a particular officer may be unsatisfactorily trained will not

11

alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted

12

from factors other than a faulty training program.”); Lee v. City of Los Angeles, 250 F.3d

13

668, 681 (9th Cir. 2001) (noting that the failure to train must result from a conscious or

14

deliberate choice to follow a course of action made from among various alternatives).

15

Moreover, a single incident cannot sustain a failure to train except in the “rare”

16

circumstance that “the unconstitutional consequences of failing to train could be so patently

17

obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of

18

violations.” Connick, 131 S.Ct. at 1361 (noting that the Canton court hypothesized that a

19

failure to train claim could be shown where the municipality “arms its police force with

20

firearms and deploys the armed officers into the public to capture fleeing felons without

21

training the officers in the constitutional limitation on the use of deadly force.”). Here,

22

Plaintiffs have failed to proffer evidence of a pattern of violations and have not raised any

23

triable issues of fact as to the allegedly obvious inadequacy of the County’s training

24

policies or that such inadequacy was likely to result in a constitutional violation. The Court

25
26
17

In fact, Plaintiffs’ expert Roger Clark admitted during his deposition that he had
no opinion regarding the adequacy of the C/O’s training, since he did not review their
28 training records. Bragg Decl. Ex. A at 81:11-14.
27

- 26 -

1

therefore GRANTS summary judgment in favor of the County on Plaintiffs’ third claim for

2

municipal liability under § 1983.18

3

IV.

CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

4

A.

5

The City Defendants move for summary judgment as to the following: (1) all claims

OVERVIEW

6

alleged against Officers Jones and Watson; (2) the second claim for deliberate indifference

7

to serious medical needs; (3) the third claim for violation of California Government Code

8

§ 845.6; (4) the eighth claim for loss of familial association in violation of the fourteenth

9

amendment; and (5) all claims brought by Martin Cotton Sr., other than the eighth claim

10
11

under the fourteenth amendment.
B.

12

1.

13
14

CLAIMS AGAINST OFFICERS JONES AND WATSON
Excessive Force
a)

Officer Watson

Plaintiffs predicate their excessive force claim against Officers Watson on his

15

allegedly unnecessary placement of a spit mask on the Decedent. Pls.’ Opp’n at 11.19

16

According to Plaintiffs, none of the officers saw the Decedent spit, and therefore, there was

17

no need for its application. They further assert that the use of the mask was excessive given

18

that the Decedent still had pepper spray on his face. Id. In addition, Plaintiffs aver that he

19

failed to intervene to stop the other officer’s use of force against the Decedent, and did not

20

seek medical assistance or offer to wash the pepper spray off of his face. Id.

21
22

As support for their position, Plaintiffs rely principally on the declaration of their use
of force expert, Roger Clark, who offers the following opinion:

23
18

Because there is no basis for imposing municipal liability, the Court’s ruling also
resolves Plaintiffs’ sixth cause of action for wrongful death damages and seventh cause of
25 action for survival damages in favor of the County.
24

19

City Defendants provided an exemplar of a spit mask, which is a sheer nylon mesh
appliance applied over the face to prevent spitting. Supp. Laird Decl. Ex. B. Officer
27 Watson applied the mask at the request of another officer. Watson Decl. ¶ 6. Even after
applying the mask, the Decedent continued to yell, thus indicating that it did not impede his
28 ability to breathe. Id.
26

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1
2
3

A spit masked [sic] was placed on Mr. Cotton by Officer
Watson while in the field, but none of the EPD Officers
reported any spitting by Mr. Cotton neither in their statements
nor depositions.… In my opinion, Officer Watson’s use of the
spit mask was excessive and unreasonable under the
circumstances,….

4
5

Clark Decl. ¶ 14 (emphasis added), Dkt. 186. However, Mr. Clark admitted during his

6

deposition that he, in fact, had not reviewed all of the officers’ statements because they

7

were not given to him by Plaintiffs’ counsel. Supp. Delaney Decl. Ex. B at 109:18-23, Dkt.

8

200. Had he done so, Mr. Clark would have realized that Officer Laird had, in fact,

9

observed spittle coming from the Decedent’s mouth. Supp. Laird Decl. Ex. A; Dulaney

10

Decl. Ex. D at 21:17-19. A third party witness, Mr. Gage, also saw the Decedent spit at the

11

officers. Dulaney Decl. Ex. D at 21:17-19. Notably, Mr. Clark acknowledged that if a

12

witness had seen the Decedent spit at the officers, the application of a spit mask would have

13

been appropriate. Supp. Delaney Decl. Ex. A at 106:5-9. Accordingly, the Court finds that

14

Officer Watson’s placement of the spit mask does not amount to excessive force, as a

15

matter of law, based on the record presented. Summary judgment in favor of Officer Jones

16

on this claim is therefore GRANTED.

17
18

b)

Officer Jones

Officer Jones arrived at the scene after the Decedent had been handcuffed and had a

19

spit mask placed over his face. Jones Decl. ¶ 2. He used his nunchukus as a “pain

20

compliance” control hold to ensure the safety of the other officers while they searched the

21

Decedent. Id. ¶ 4. Relying on the declaration of their expert, Plaintiffs contend that Officer

22

Jones’ use of the nunchakus was “excessive and unreasonable since he was intentionally

23

causing pain after decedent had been beaten and after he was handcuffed.” Clark Decl.

24

¶ 19. However, Mr. Clark failed to account for the fact that Officer Jones was seeking to

25

gain control over the Decedent, who was continuing to resist the officers, even while

26

handcuffed. Jones Decl. ¶ 4. Given the lack of dispute that the Decedent was actively

27

resisting the officers when Officer Jones applied his nunchukus, Plaintiffs have failed to

28

raise a triable issue of fact with respect to their excessive force claim against Officer Jones.
- 28 -

1

See Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006)

2

(noting that the fourth amendment does not, “prohibit a police officer’s use of reasonable

3

force during an arrest.”).20 Therefore, the City Defendants’ motion for summary judgment

4

with respect to Plaintiffs’ excessive force claim against Officer Jones is GRANTED.

5
6

2.

Failure to Intercede

“[P]olice officers have a duty to intercede when their fellow officers violate the

7

constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416,

8

1446-47 n.25 (9th Cir. 1994), rev’d on other grounds by 518 U.S. 81, (1996). “Importantly,

9

however, officers can be held liable for failing to intercede only if they had an opportunity

10

to intercede.” Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). In addition,

11

the duty to stop a violation arises only where the officers knows or has reason to know of

12

the constitutional violation. Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991).

13

According to Plaintiffs, “[w]hen [Officers] Jones and Watson arrived, it was evident

14

that Mr. Cotton had been pepper sprayed and beaten, yet neither officer stepped in to

15

prevent further abuse….” Pls.’ Opp’n at 13. However, Plaintiffs cite no evidence to

16

support this contention. Though Officer Watson saw Officer Laird strike the Decedent’s

17

lower legs three times with his baton within seconds of his arrival, Watson Decl. ¶ 3, there

18

is no evidence that the Decedent suffered any “further abuse” after that point which either

19

Officer Watson or Officer Jones could have prevented. Officer Jones only saw the other

20

officers applying compliance holds. Jones Decl. ¶ 3. In addition, there is no evidence that

21

these officers knew or had reason to know that the other officers were violating the

22

Decedent’s constitutional rights. For these reasons, the City Defendants’ motion for

23

summary judgment with respect to Plaintiffs’ failure to intercede against Officers Jones and

24

Watson is GRANTED.

25
26
20

Plaintiffs’ contention regarding Officer Jones’ use of nunchakus is not alleged in
the pleadings. In addition, such claim is inconsistent with Mr. Clark’s deposition
testimony, wherein he stated that he was not criticizing such conduct. Supp. Delaney Decl.
28 Ex. B at 46:2-8.
27

- 29 -

1

3.

Deliberate Indifference to Serious Medical Needs

2

Separately, Plaintiffs briefly argue that Officers Watson and Jones were deliberately

3

indifferent to the Decedent’s serious medical needs. Pls.’ Opp’n at 14. However, Plaintiff

4

makes no showing that either individual was subjectively aware that the Decedent was in

5

need of medical attention. It is undisputed that neither officer was present at the inception

6

of the altercation. Officer Watson arrived well after the incident was underway and only

7

observed the three baton strikes to the Decedent’s lower legs by Officer Laird. Watson

8

Decl. ¶ 3. Officer Jones arrived even later, after the Decedent had already been handcuffed

9

and placed in the spit mask. Jones Decl. ¶ 2. In light of Plaintiffs’ failure to make the

10

requisite showing under Farmer and its progeny as to these officers’ subjective knowledge,

11

summary judgment in their favor on Plaintiffs’ second claims for deliberate indifference is

12

GRANTED.

13

C.

14

Plaintiffs’ second claim for deliberate indifference is brought against the individual

15

City Defendants. As noted, this Circuit has made clear that deliberate indifference may be

16

shown where law enforcement officers “deny, delay or intentionally interfere with medical

17

treatment [.]” Jett, 439 F.3d at 1096 (internal quotations and citation omitted). The City

18

Defendants contend that they were unaware that the Decedent required immediate medical

19

attention at a hospital. City Defs.’ Mot. at 11. However, in light of the severity of the

20

beating Officers Laird, Winkle and Whitmer had allegedly just inflicted upon the

21

Decedent—which included the multiple strikes to the head, multiple baton strikes, kicks

22

and knee strikes by numerous officers—a reasonable trier of fact could conclude that these

23

Defendant knew that the Decedent had serious medical needs requiring immediate

24

attention, but failed to provide or seek any treatment for the Decedent. Indeed, Officer

25

Whitmer testified during his deposition that he offered to follow Officer Laird to the

26

hospital, given what he knew had just transpired. See Galipo Decl. Ex. 3 at 108:10-109:25.

DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS

27
28
- 30 -

1

The City Defendants’ motion for summary judgment with respect to Plaintiffs’ second

2

claim for deliberate indifference is DENIED.21

3

D.

4

In their fifth claim for relief, Plaintiffs allege a claim against the City Defendants for

VIOLATION OF CALIFORNIA GOVERNMENT CODE § 845.6

5

violation of California Government Code § 845.6. Under this code section, “a public

6

employee, and the public entity where the employee is acting within the scope of his

7

employment, is liable if the employee knows or has reason to know that the prisoner is in

8

need of immediate medical care and he fails to take reasonable action to summon such

9

medical care.” Cal. Gov. Code § 845.6; Lucas v. County of Los Angeles, 47 Cal.App.4th

10

277, 288 (1996). To state a claim for violation of § 845.6, a plaintiff “must establish three

11

elements: (1) the public employee knew or had reason to know of the need (2) for

12

immediate medical care, and (3) failed to reasonably summon such care.” Jett, 439 F.3d at

13

1099. “Liability ... is limited to serious and obvious medical conditions requiring

14

immediate care[.]” Watson v. State, 21 Cal.App.4th 836, 841 (1993). As set forth above,

15

there is sufficient evidence from which a jury could infer that Officers Laird, Winkle and

16

Whitmer knew or had reason to know that the Decedent needed immediate medical

17

attention but failed to reasonable summon care for him. The City Defendants’ motion for

18

summary judgment with respect to Plaintiffs’ claim for violation of California Government

19

Code § 845.6 is therefore DENIED.

20

E.

21

The Ninth Circuit “has recognized that parents have a Fourteenth Amendment

LOSS OF FAMILIAL ASSOCIATION

22

liberty interest in the companionship and society of their children.” Wilkinson v.

23

Torres, 610 F.3d 546, 554 (9th Cir. 2010). “Official conduct that ‘shocks the conscience’

24

in depriving parents of that interest is cognizable as a violation of due process.” Id. The

25

shock the conscience test may be met by showing that a defendant acted with deliberate

26
21

Officers Watson and Jones are entitled to summary judgment on this claim for the
same reasons discussed above in connection with Plaintiffs’ claim for deliberate
28 indifference to serious medical needs.
27

- 31 -

1

indifference or by showing that he acted with a “purpose to harm” the decedent for reasons

2

unrelated to legitimate law enforcement objectives. Porter v. Osborn, 546 F.3d 1131, 1137

3

(9th Cir. 2008). If the officers had the opportunity for actual deliberation, the deliberate

4

indifference standard applies; but if there was not sufficient time for such deliberation, then

5

the plaintiff must satisfy the more stringent purpose to harm standard. Id. at 1137-40. To

6

satisfy the purpose to harm standard, a plaintiff must show “the intent to inflict force

7

beyond that which is required by a legitimate law enforcement objective.” Id. at 1140

8

(citations and internal quotations omitted).

9

The parties dispute which standard, i.e., deliberate indifference or “purpose to

10

harm,” applies under the facts presented. “In determining whether deliberate indifference is

11

sufficient to shock the conscience, or whether the more demanding standard of purpose to

12

harm is required, the critical consideration is whether the circumstances are such that actual

13

deliberation is practical.” Tennison v. City and County of San Francisco, 570 F.3d 1078,

14

1089 (9th Cir. 2009) (internal quotation marks and brackets omitted). Thus, for example,

15

the Ninth Circuit has recognized that in situations where law enforcement officers are

16

required to “react quickly,” the purpose to harm standard applies. Osborn, 546 F.3d at

17

1139-40. In Osborn, a police officer shot and killed the plaintiffs’ son following a five-

18

minute altercation. Id. The court held that the purpose to harm standard “must apply”

19

given that the officer “faced an evolving set of circumstances that took place over a short

20

time period necessitating ‘fast action’ and presenting ‘obligations that tend to tug against

21

each other.’” Id. (quoting in part County of Sacramento v. Lewis, 523 U.S. 833, 853

22

(1998)). In contrast, the lesser, deliberate indifference standard is limited to situations in

23

which “actual deliberations are practical,” such as where the “split second” decisions are

24

not involved. E.g., Tennison, 570 F.3d at 1089 (“the decision whether to disclose or

25

withhold exculpatory evidence is a situation in which ‘actual deliberation is practical.’”).

26

The Court finds that there is a triable issue of fact regarding whether “actual

27

deliberations” were practical under the circumstances presented. Michael Gage, who was

28

present and witnessed the altercation, testified during his deposition that the Decedent was
- 32 -

1

not resisting, attacking or challenging the Police Officers. Galipo Decl. Ex. 5 at 9:19,

2

12:10-15:13. Construing the evidence in a light most favorable to Plaintiffs, it is possible

3

that a trier of fact could conclude that, in light of the lack of resistance from the Decedent,

4

the officers, in fact, had sufficient time to actually deliberate regarding their course of

5

conduct. The City Defendants counter that the incident lasted only a couple of minutes,

6

and therefore, the altercation was the type where split second decisions by the Police

7

Officers were necessary. However, even if the altercation lasted only a few minutes, a

8

reasonable juror could conclude that actual deliberations were nonetheless practical, given

9

that the Decedent was not resisting the officers.22

10

But even if the more stringent purpose to harm standard were controlling, the Court

11

finds that Plaintiffs have demonstrated that there are genuine disputes of material fact with

12

respect to whether the Police Officers exhibited “the intent to inflict force beyond that

13

which is required by a legitimate law enforcement objective.” Porter, 546 F.3d at 1140.

14

Mr. Gage, a percipient witness to the incident, observed the Police Officer pepper spray the

15

Decedent in his face and strike the side of his head, causing him to fall to the ground.

16

Galipo Decl. Ex. 5 at 8:7-13, 9:13-19, 12:10-25, 13:1-22, 14:12-22. While on the ground,

17

the Decedent curled into a fetal position with his face towards the ground and was struck

18

repeatedly with a baton by one of the officers. Id. at 14:12-15, 15:1- 13. After Officer

19

Whitmer arrived, he joined in the fray by kicking the Decedent in the ribs. Id. at 16:17-

20

18:4; 41:17-42:10. Mr. Gage also observed the officers delivering multiple knee strikes to

21

the Decedent’s mid-section. Id. at 17:6-17. In the meantime, other officers struck the

22

Decedent multiple times in the back of the head with hammer fists. Id. at 18:5-19:11.

23

According to Mr. Gage, the Decedent never attempted to punch or kick any of the officers.

24

Id. at 14:3-22, 20:11-17. Likewise, witness Louis Valente observed one of the officers

25

strike Mr. Cotton in the head up to seven times and saw several officers apply multiple “full

26
22

The Court also notes that a reasonable jury could find that after the Decedent was
handcuffed and restrained, there may have been the opportunity for actual deliberation with
28 respect to the individual City Defendants’ failure to summon medical care.
27

- 33 -

1

force” kicks and baton strikes to Mr. Cotton while Mr. Cotton was on the ground. Id. Ex. 6

2

¶ 8.23 And, as discussed above, the autopsy report on the Decedent confirmed that he

3

suffered significant blunt force trauma throughout his body. Galipo Decl. Ex. 8.

4

From these facts, a reasonable juror could conclude that the Police Officers acted

5

with the requisite purpose to harm the Decedent necessary to sustain Plaintiffs’ claim under

6

the fourteenth amendment. The City Defendants’ motion for summary judgment with

7

respect to Plaintiffs’ § 1983 claim for denial of familial association under the fourteenth

8

amendment is therefore DENIED.

9

F.

10

CLAIMS OF MR. COTTON SR.

Finally, the City Defendants contend that the Decedent’s father, Martin Cotton Sr.,

11

lacks standing to recover survival or wrongful death damages with respect to all claims

12

except Plaintiffs’ eighth claim under the fourteenth amendment. City Defs.’ Mot. at 19-21.

13

The Court agrees. In its Order on the parties’ motions in limine, the Court ruled that the

14

only claim alleged in the FAC which Mr. Cotton Sr. has standing to pursue is the eight

15

claim for violation of the right to familial association under the fourteenth amendment. See

16

12/14/10 Order at 34-37, Dkt. 147. Consistent with that ruling, the City Defendants’

17

motion for summary judgment with respect to Mr. Cotton Sr. is GRANTED.

18

V.

CONCLUSION

19

For the reasons stated above,

20

IT IS HEREBY ORDERED THAT:

21

1.

22

The County Defendants’ motion for summary judgment is GRANTED IN

PART and DENIED IN PART, as follows:

23

a.

Plaintiffs are DENIED leave to amend to allege a claim for excessive

24

force under 42 U.S.C. § 1983 against the individual County Defendants, and

25

therefore, the County Defendants’ motion for summary judgment on said putative

26

claim is DENIED AS MOOT.

27
23

28

In describing the incident, Mr. Valente stated: “I felt like I was seeing the images
of the Rodney King beating all over again.” Galipo Decl. Ex. 6 ¶ 15.
- 34 -

1

b.

GRANTED as to Plaintiffs’ second claim for deliberate indifference to

2

serious medical needs with respect to C/O Strong, but DENIED as to all other

3

individual County Defendants.

4
5
6

c.
2.

GRANTED as to Plaintiffs’ Monell claim against the County.

The City Defendants’ motion for summary judgment is GRANTED IN PART

and DENIED IN PART, as follows:

7

a.

GRANTED as to all claims alleged against Officers Jones and Watson.

8

b.

DENIED as to Plaintiffs’ second claim for deliberate indifference to

9

serious medical needs.

10
11

c.

Government Code § 845.6.

12
13

DENIED as to Plaintiffs’ third claim for violation of California

d.

DENIED as to Plaintiffs’ eighth claim for loss of familial association

in violation of the fourteenth amendment.

14

e.

GRANTED as to all claims brought by Martin Cotton Sr., other than

15

Plaintiffs’ eighth claim under the fourteenth amendment.

16

3.

In view of the Court’s ruling on the instant motions, the Court finds the

17

parties should be able to conclude the trial in a time period significantly less than the eight

18

trial days currently allotted for this case. At the pretrial conference, the parties shall be

19

prepared discuss a revised time estimate for trial, along with a proposed time allocation

20

between the parties.

21

4.

No further motions or requests may be filed without prior leave of Court.

22

5.

This Order terminates Docket 167 and 178.

23

IT IS SO ORDERED.

24

Dated: August 31, 2011

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

25
26
27
28
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