Pryor v. City of Clearlake et al
Filing
78
ORDER by Judge Claudia Wilken granting in part and denying in part 56 Motion for Summary Judgment (cwlc3, COURT STAFF) (Filed on 7/6/2012)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
United States District Court
For the Northern District of California
10
SEAN PRYOR,
11
12
13
14
15
16
17
18
19
20
21
22
23
Plaintiff,
v.
CITY OF CLEARLAKE, a governmental
entity; CARL MILLER,
individually, and in his capacity
as a police officer for the City
of Clearlake and acting sergeant;
ALAN WADE McCLAIN, individually
and in his capacity as Chief of
Police for the City of Clearlake;
CRAIG CLAUSEN, individually and
in his capacity as Police
Lieutenant for the City of
Clearlake; MICHAEL RAY,
individually, and in his capacity
as a police officer for the City
of Clearlake; and DOES 1-50,
individually, and in their
capacity as police officers for
the City of Clearlake,
No. C 11-0954 CW
ORDER GRANTING IN
PART AND DENYING
IN PART
DEFENDANTS’ MOTION
FOR SUMMARY
JUDGMENT (Docket
No. 56)
Defendants.
________________________________/
24
25
This action arises from an incident in which Plaintiff Sean
26
Pryor, a mentally ill, African American man, was shot and tased by
27
officers from the Clearlake Police Department.
28
1
Pryor has alleged the following causes of action under
2
federal and state law in his First Amended Complaint: (1) a claim
3
under 42 U.S.C. § 1983 against all Defendants for deprivation of
4
his constitutional rights under the Fourth Amendment and due
5
process, equal protection and privacy principles; (2) a claim
6
against the City and Chief Alan Wade McClain under § 1983,
7
pursuant to Monell v. Department of Social Services, 436 U.S. 658
8
(1978); (3) a claim for assault and battery against Defendant
9
police officers; (4) a claim for intentional infliction of
United States District Court
For the Northern District of California
10
emotional distress against Defendant police officers; (5) a claim
11
for negligence against Defendant police officers; (6) a common law
12
claim against the City and Chief McClain for negligent hiring,
13
training, supervision and discipline; (7) a claim under California
14
Civil Code section 52.1 against Defendant police officers; (8) a
15
claim under California Civil Code section 51.7 against Defendant
16
police officers; (9) a claim against the City for violation of the
17
Americans with Disabilities Act; and (10) a claim against the City
18
under the Rehabilitation Act.
19
Defendants have jointly moved for summary adjudication in
20
their favor of all of Pryor’s claims, except that the motion does
21
not request adjudication of his excessive force claim against
22
Officer Carl Miller.
23
respect to his fourth through tenth causes of action.
24
Pryor has not opposed the motion with
Having considered all of the parties’ submissions and oral
25
argument, the Court grants Defendants’ unopposed motion for
26
summary judgment with respect to Pryor’s fourth through tenth
27
claims.
The Court grants in part and denies in part Defendants’
28
2
1
motion as to Pryor’s claims under § 1983 and for assault and
2
battery.
BACKGROUND
3
4
The incident at issue in this case took place on September
5
30, 2009 at the residence Pryor shared with his mother in
6
Clearlake.
7
Officer Ryan Peterson.
8
threatened and battered his younger brother Darryl Ayatch and was
9
possibly armed and under the influence of drugs.
Officer Carl Miller1 received a call while he was with
Miller was informed that Pryor had
Allen Dec.,
United States District Court
For the Northern District of California
10
Ex. C, Miller Dep. at 50:18-51:11.
11
was an "H&S, which is basically health and safety, which means
12
drugs and/or alcohol," that Pryor had had previous contact with
13
officers when he had brandished a weapon and resisted arrest, and
14
that a machete could be in the house.
15
He was informed that the call
Id. at 54:4-19.
Miller and Peterson were the first to arrive at the scene.
16
Miller saw beer cans, shoes, a TV, stereos and a door with several
17
holes in it thrown about the front yard.
18
Peterson did not know whether all of the broken debris in the yard
19
was the result of Pryor's agitation, but considered it a "sign."
20
Id. at 65:11-14.
21
inside the house with enough force that stucco fell off the wall
22
outside of the house.
23
something indiscernible.
24
25
Id. at 58:12-16.
He and
He heard something thrown against the wall
Id. at 61:3-10.
Pryor was screaming
Id. at 61:15-19.
Peterson announced their presence as the Clearlake Police
Department.
Id. at 64:2-3.
Pryor responded, “Go away!”
Peterson
26
27
28
An officer Todd Miller also figures in the case but is not
a defendant. He will be referred to by his full name.
1
3
1
Body Recording (Peterson Rec.), 1:36;2 Pryor Transcript of
2
Peterson Body Recording (Peterson Rec. Tr.) at 7:17-19.3
3
Peterson asked Pryor if he could talk to him for a minute, Pryor
4
responded, "[F]uck you."
5
15.
6
door, Pryor responded a couple of times, “‘[S]uck my dick, fuck
7
you, come on in.’"
8
aggressive.
9
know, or you're going to have to kill me."
United States District Court
For the Northern District of California
10
11
When
Allen Dec., Ex. C, Miller Dep. at 64:12-
In response to Peterson’s request that Pryor come to the
Id. at 63:15-18.
Pryor became more
He told the officers, "I'll fucking kill you, you
Id. at 65:23-66:1.
Peterson’s body recorder also captured the following
statements from Pryor:
12
Defendants object to Pryor’s reliance on portions of
Peterson’s body recording, as well as the taser video recording,
the audio recording of Ayatch’s 911 call and audio recordings of
the investigative interviews with the officers after the shooting.
Under Federal Rule of Evidence 106, upon which Defendants rely, if
a party introduces all or part of a writing or recorded statement,
an adverse party may require the introduction, at that time, of
any other part--or any other writing or recorded statement--that
in fairness ought to be considered at the same time. Because
Pryor has filed with his opposition a DVD containing a complete
copy of Peterson’s body recording and Ayatch’s 911 call, as well
as of the recordings of the taser video and of the post-incident
interviews with Miller, McClain, Ray, Peterson and Clausen, the
Court considers this evidence. Defendants have not challenged the
authenticity of these recordings or submitted their own copies of
the recordings.
3 Pryor submitted a transcript of Peterson's body recording.
Defendants objected to the transcript as unauthenticated and
lacking foundation. At the hearing the parties stipulated to
submit jointly an agreed upon transcript of the body recording.
The parties subsequently submitted, in a single document, their
respective transcriptions of the body recording, highlighting
several discrepancies between their versions. Docket No. 75.
Because the Court must construe the facts in favor of Pryor in the
context of Defendants’ motion for summary judgment, where there
are disputes regarding the content of the recording, the Court
draws from Pryor’s transcript, so long as it arguably conveys the
audio recording.
2
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
[C]ome and fuckin’ [inaudible]-- die! You aint gettin
in, come in and you’re going to fuckin die . . . I
ain’t gonna give up this time. You guys can’t do this
ya’ll are gonna have to burn me. You guys are gonna
have to shoot me . . . Do you wanna die? You gonna
have to [Laughing] . . . I’m from New York; I could
kill you all with my bare hands with just one
punch . . . What’s in your DNA? What makes you tick,
really? Tell me. [Inaudible] who y’all really. Are
you aliens?
Peterson Rec. Tr. at 2:8-3:26; Peterson Rec., 3:17-5:06.
Lieutenant Craig Clausen and Chief McClain arrived, then
Officer Michael Ray and a Detective Snyder, whose first name is
not provided.
Allen Dec., Ex. C, Miller Dep. at 66:3-8; 67:5-10.
Ayatch, in tears, told Peterson as follows:
I came here, and my brother has been acting funny.
He’s already been taken down in the house, he’s on
some kinda drugs, my mother had to leave . . . He’s
still going to Trial [sic] for the last time that he
messed up . . . He got a hold of some bad drugs, and
you guys had to come Taser him a couple of times for
brandishing a knife . . . She told me she [inaudible]
but she couldn’t take it, so I decided to come and see
how everthings is doing . . . I went in, like--“What
the hell do you want muthafucka? I’ll kill you! I’ll
kill you!” and then he showed me a stick. He says, “I
whipped that bitch ass over there and made her suck my
dick, and I’ma beat yo ass and make you suck my dick!
I’ma kill yo mutha fuckin ass.”
20
Peterson Rec. Tr. at 7:17-19, 8:27-9:7; Peterson Rec., 13:28-
21
14:48.
22
Ayatch told Peterson that he was afraid for his life.
23
Peterson Rec. Tr. at 9:9-11; Peterson Rec., 14:56-14:59. Ayatch
24
also referred to the residence as his mother’s house, said that
25
Pryor currently lived there, and said that he himself was a former
26
resident but could go to the house “whenever [he] want[ed] to,
27
everyday.”
Peterson Rec. Tr. at 7:15-23, 9:18-19; Peterson Rec.,
28
5
1
14:08-25;4 15:00-15:10.
He said that his mother “didn’t ask me to
2
come but sometimes she’ll say go talk to your brother.”
3
Rec. Tr. at 9:20-21; Peterson Rec., 15:10-15:12.
4
offered Peterson a key to the residence.
5
9:27-28; Peterson Rec., 15:17-20.
Peterson
Ayatch then
Peterson Rec. Tr. at
Pryor’s transcript of Peterson’s body recording indicates
6
7
that Peterson relayed to other officers some of Ayatch’s
8
statements, although the listeners are not identified.
9
reported,
12
He says he doesn’t live here, he came here because his
mom asked him to check -- to talk to his brother. He
comes here quite often, he has a key to the residence
-- um -- came in, noticed many -- showed up noticed
the door from inside the residence out here.
13
Peterson Rec. Tr. at 10:10-16; Peterson Rec., 15:40.
14
Miller testified in his deposition that Peterson told him,
10
United States District Court
For the Northern District of California
Peterson
11
15
Ray and Snyder that Ayatch’s mother lived at the house and had
16
left the night before, and that when Ayatch had come to the house
17
to check on Pryor, Pryor, armed with a large wooden table leg,
18
threatened to kill him.
19
72:12.
20
house, but did not recall whether he lived there.
21
15.
Allen Dec., Ex. C, Miller Dep. at 71:2-
Miller knew that Ayatch had given Peterson a key to the
Id. at 72:11-
22
23
24
25
26
27
28
The parties’ competing transcripts indicate that there is a
purported dispute as to whether Ayatch referred to the residence
as his mother’s house. Pryor asserts that Ayatch said “my other
house,” Peterson Rec. Tr. at 8:19-20, rather than “my mother’s
house,” as represented by Defendants’ version of the transcript,
Peterson Rec. Tr. at 7:18. Having reviewed the audio recording,
the Court determines that there is no ambiguity in the evidence
itself and it is not possible to construe the recording in the
manner that Pryor proposes.
4
6
1
Ray testified that he was informed of Pryor’s erratic
2
behavior, including his threats to kill the officers and his
3
reported threat against Ayatch earlier that day.
4
12, Ray Dep. at 156:23-158:5, 173:19-24.
5
that Pryor had been involved in a previous altercation with police
6
which had included use of a weapon.
7
was Officer Peterson that told me that Mr. Pryor in the past had
8
fought with officers and there was a mention of a weapon too.”).
9
Ray did not recall, one way or another, whether there were
Sudano Dec., Ex.
Ray also had been told
Id. at 159:2-7 (“I believe it
United States District Court
For the Northern District of California
10
firearms in the home.
11
concerned about the possibility of drawing fire when entering the
12
home.
13
Id. at 159:19-20.
However, he was
Id. at 159:17-18.
After briefing the other officers at the front of the house,
14
Peterson went to the back of the house where Lt. Clausen and Chief
15
McClain were located.
16
Peterson relayed to the group that the residence belonged to
17
Ayatch’s and Pryor’s mother, Pryor lived there, and Ayatch had a
18
key and visited “quite often.”
19
Peterson also reported that Ayatch’s mother occasionally asked him
20
to check on his brother, and when he had visited the residence
21
that day, Pryor screamed and threatened to beat, sexually abuse
22
and kill him, while brandishing a table leg.
23
relayed that Ayatch feared for his life.
24
speaker in the group then reported that Pryor had previously been
25
arrested for resisting arrest and threatening to kill with a
26
machete.
27
house.
Id.
Allen Dec., Ex. C, Miller Dep. at 72:19-25.
Peterson Rec., 16:09-17:20.
Id.
Id.
Peterson
An unidentified
Clausen reported that a machete was possibly in the
Id.
28
7
1
Clausen made the decision that entry into the house was
2
necessary.
Id.
McClain was standing with Clausen at the time and
3
could have reversed Clausen’s decision, but did not.
4
Ex. 10, Clausen Dep. at 175:14-177:6.
5
decision was based on the “totality of what was happening,” the
6
property destruction, the report of a fearful mother, the presence
7
of probable cause to make a felony arrest, Ayatch’s permission to
8
enter the residence, the officers’ possession of a key, Pryor’s
9
highly agitated state, uncertainty as to what was occurring in the
Sudano Dec.,
Clausen testified that his
United States District Court
For the Northern District of California
10
house and whether Pryor had access to weapons, and Pryor’s
11
previous confrontation with the police.
12
Clausen Dep. at 173:16-23; 185:14-23; Allen Dec., Ex. E, Clausen
13
Dep. at 163:1-7, 177:7-178:12.
14
was mentally ill, but thought that he was under the influence of
15
alcohol or drugs, based on information from Ayatch and his own
16
observations of broken wine bottles in the yard.
17
E, Clausen Dep. at 157:7-16, 169:23-70:11.
18
Sudano Dec., Ex. 10,
Clausen did not suspect that Pryor
Allen Dec., Ex.
Miller, Peterson, Ray and Clausen planned to enter the house
19
in order, with Miller entering first, armed with his gun.
20
Dec., Ex. 8, Miller Dep. at 82:10-83:22; Allen Dec., Ex. D, Ray
21
Dep. at 165:22-24, 167:10-19.
22
an X26 taser.5
23
Sudano
Ray, entering third, was armed with
The taser video shows that when the door first swung open,
24
Pryor threw a white rag into the doorway and then disappeared from
25
view, apparently running into the hallway.
26
27
28
Pryor then reappeared
Ray’s testimony does not specify the make of the taser or
the mode in which it was used. However, Defendants concede in
their briefing that it was an X26, deployed in dart-mode.
5
8
1
at the entry of the hallway, aggressively raising a stick, just as
2
Miller passed through the doorway and immediately moved to the
3
right inside of the house.
At the same time, several shots can be
4
heard in rapid succession.
Peterson, the next officer after
5
Miller, did not enter the house, but moved to the side, giving
6
Ray, who carried the taser and took the video, a clear line of
7
sight through the open doorway and into the residence.
8
shots were fired, Ray immediately deployed his taser in dart-mode
9
as he moved into the house.
United States District Court
For the Northern District of California
10
11
When the
Miller’s gunshots and Ray’s taser hit
Pryor and he fell to the ground.6
After Pryor fell to the ground, the video captured only part
12
of his body.
13
back, partially against the left wall, and clearly bleeding, the
14
officers yelled at him repeatedly to roll over on his stomach.
15
When Pryor failed to do so, Ray tased him in dart-mode a second
16
time.
17
stomach, he would be tased a second time.
18
officers continued to yell at Pryor to move onto his stomach.
19
As shown in the video, while Pryor was lying on his
Pryor was not warned that if he failed to roll onto his
As Ray tased him, the
After the second tasing stopped, Pryor remained on his back.
20
Clausen then shouted, “What’s in his hand?”
21
In deposition, Ray testified that he first deployed his
taser because he heard shots fired and saw Miller on the ground
inside of the house, but in his post-incident interview Ray stated
that he did not see Miller inside of the house until the last
gunshot was fired. Allen Dec., Ex. D, Ray Dep. at 191:1-6; Ray
Post-Incident Interview, 27:10-27:25. Because the video shows
that the taser was first deployed during the course of the
shooting, Ray may have used his taser before he saw Miller on the
ground. Because of this inconsistency the Court does not consider
Ray’s testimony that he initiated the tasing because he saw Miller
on the ground.
22
23
24
25
26
27
6
28
9
An unidentified
1
officer approached Pryor, close enough to touch him with his boot
2
and stand over him.
3
Pryor “had nothing.”
4
out, “There’s a knife!”7
5
At that point, an officer called out that
Within seconds thereafter, Clausen called
Pryor has submitted evidence of Clearlake Police Department
6
policies, as well as opinion testimony by Roger A. Clark
7
concerning police procedures and practices.
8
and 3.
9
Under Policy 414.3(a), “the first officer on the scene of an
Sudano Dec., Exs. 15
Policy 414 concerns Hostage and Barricaded Suspects.
United States District Court
For the Northern District of California
10
actual or potential hostage/barricade situation shall consider
11
. . . [a]ttempt[ing] to avoid confrontation in favor of
12
controlling and containing the situation until the arrival of
13
trained personnel.”
14
suspect continue, and lives are in imminent danger, a decision to
15
advance on the suspect may be made by the officers at the scene.”
16
17
18
19
20
Policy 424.3 states, “If violent acts by the
Clark opined,
All officers at the scene, per their POST
certifications knew the necessary tactics to deal with
Mr. Pryor in this instance, and had them at hand.
Absent any exigency, they were required to keep Mr.
Pryor contained until he willingly exited the
residence and surrendered to the officers at the
scene. Rather the officers all agreed and selected a
21
22
23
24
25
26
27
28
In deposition, Ray testified that he activated his taser
the second time after he heard an officer shout, “[S]how me hands,
show me hands,” and someone yelled something about a knife. Allen
Dec., Ex. D, Ray Dep. at 193:6-193:9. Ray stated that he did so
because of the warning of a knife, and he did not know whether
Pryor possessed or had concealed such a weapon. Id. at 194:21-24.
Ray did not see any weapons after the second tasing. Sudano Dec.,
Ex. 12, Ray Dep. at 195:13-196:18. The Court does not consider
this testimony because it is inconsistent with what is evident
from the taser video and the evidence must be considered in the
light most favorable to Pryor.
7
10
1
2
3
4
5
6
7
8
9
course of action that included extremely excessively
provocative and unnecessary force that predictably
resulted shooting [sic] Mr. Pryor. In my opinion, the
fundamental tactical errors and a gross lack of
situational awareness in this incident were the engine
of what occurred. In my experience, a significant
number of civilian deaths involving police result from
a series of cascading departures from expected and
required tactics and deliberate departures from
training.
Sudano Dec., Ex. 3, Clark Report at 10.
Clausen and McClain did not follow standards and training
regarding officer contacts with mentally ill subjects.
United States District Court
For the Northern District of California
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. at 13.
LEGAL STANDARD
10
11
Clark further stated that
Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law.
Fed. R. Civ.
P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
1987).
The moving party bears the burden of showing that there is no
material factual dispute.
Therefore, the court must regard as
true the opposing party's evidence, if supported by affidavits or
other evidentiary material.
815 F.2d at 1289.
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences
in favor of the party against whom summary judgment is sought.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect the
11
1
outcome of the case.
The substantive law will identify which
2
facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S.
3
242, 248 (1986).
DISCUSSION
4
5
6
I. Section 1983 Claim Against Officers and Chief of Police
A. Unreasonable Entry in Violation of the Fourth Amendment
1. Collateral Estoppel
7
8
9
Defendants seek summary adjudication that their entry was
lawful, based on collateral estoppel, or issue preclusion.
United States District Court
For the Northern District of California
10
Specifically, Defendants argue that Pryor's effort to relitigate
11
the lawfulness of the officers' entry into the residence is
12
precluded by a state court ruling denying Pryor's motion to
13
suppress in criminal proceedings against him.
14
dispute that state law governs the application of collateral
15
estoppel by a state court judgment in a federal civil rights
16
action.
17
1990).
18
relitigating an issue of fact or law that was conclusively and
19
necessarily determined in a prior action between the same
20
parties.”
21
Cir. 1997) (citing Anderson–Cottonwood Disposal Serv. v. Workers’
22
Comp. Appeals Bd., 135 Cal. App. 3d 326, 332 (1982)).
23
collateral estoppel will apply “if (1) the issue necessarily
24
decided at the previous [proceeding] is identical to the one which
25
is sought to be relitigated; (2) the previous [proceeding]
26
resulted in a final judgment on the merits; and (3) the party
27
against whom collateral estoppel is asserted was a party or in
The parties do not
Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir.
“In California, a party is generally estopped from
Lombardi v. City of El Cajon, 117 F.3d 1117, 1121 (9th
28
12
Typically,
1
privity with a party at the prior [proceeding].”
2
People v. Sims, 32 Cal.3d 468, 484 (1982)).
3
Id. (citing
Here, there is no question that the second and third
4
requirements for collateral estoppel are satisfied.
Pryor was a
5
party to both the civil and criminal proceedings, and the criminal
6
proceeding resulted in a final judgment on the merits in that he
7
plead no contest to a charge under section 422 of the California
8
Penal Code, for threats to commit a crime resulting in death, and
9
he did not appeal the court’s denial of his motion to suppress.
United States District Court
For the Northern District of California
10
See e.g., Ayers, 895 F.2d at 1272 (applying collateral estoppel in
11
subsequent civil suit where defendant had plead guilty and did not
12
appeal adverse suppression rulings under California Penal Code
13
section 1538.5).
14
argued in his suppression motion that, because the officers
15
entered his home without a warrant, all evidence obtained after
16
the purportedly unlawful entry and arrest, including the officers’
17
observations, should be suppressed.
18
motion, asserting that the entry into the home was justified based
19
on exigent circumstances and the officers’ community caretaking
20
responsibilities.
21
the previous proceeding necessarily resolved the lawfulness of the
22
entry.
23
satisfied.
24
With respect to the first requirement, Pryor
The prosecution opposed the
Given that the motion was denied, the court in
Thus, all three requirements for collateral estoppel were
Pryor responds that Defendants may not assert collateral
25
estoppel because they did not plead it as an affirmative defense
26
and did not move to amend their answer.
27
Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997), a
28
case cited by both parties, states that “defendants may raise an
13
Magana v. Commonwealth of
1
affirmative defense for the first time on a motion for summary
2
judgment only if the delay does not prejudice the plaintiff.”
Pryor points out that there are available exceptions to the
3
4
application of collateral estoppel under California law.
He cites
5
an exception where “the issue of probable cause was not litigated
6
at the preliminary hearing for tactical reasons.”
7
City of Montclair, 73 Cal. App. 4th 1138, 1147 (1999).
8
Defendants, however, assert collateral estoppel based on the
9
ruling on Pryor’s motion to suppress in the criminal action, not
McCutchen v.
United States District Court
For the Northern District of California
10
on a preliminary hearing.
There can be no tactical reason for not
11
litigating the legality of the entry on a motion to suppress, and
12
Pryor did so.
13
residence was lawful.
The court found that the officers’ entry into the
Exceptions also apply where “the plaintiff alleges that the
14
15
arresting officer lied or fabricated evidence presented at the
16
preliminary hearing . . . [or] where it is apparent from the
17
record that the evidence presented at the preliminary hearing was
18
not the same as the evidence available to the arresting officer.”
19
Id.
20
of collateral estoppel at this late stage would result in
21
prejudice because he has not conducted discovery that may have
22
established that one of these exceptions applies.
23
that he has not procured the transcript of the hearing on the
24
motion to suppress and has not deposed the witnesses whom the
25
prosecution called at the hearing, Peterson and District Attorney
26
Investigating Officer John Flynn.
27
28
Pryor claims that permitting Defendants to raise the defense
Pryor notes
Nevertheless, Pryor has not shown any likelihood that either
exception applies in this case.
Although Pryor’s counsel contend
14
that the absence of the transcript thwarts their ability to argue
2
these exceptions, they have not demonstrated that they could not
3
have obtained a transcript before Pryor’s opposition to
4
Defendants’ motion for summary judgment was due.
5
generalized contention that officers from the CPD are dishonest is
6
not sufficient to justify delaying this action to allow Pryor to
7
obtain a transcript and depose Peterson and Flynn in the hopes of
8
finding that they might have lied at the suppression hearing.
9
Thus, Pryor’s contention that one of these exceptions might apply
10
United States District Court
For the Northern District of California
1
is speculative, and he has not demonstrated that he was prejudiced
11
by Defendants asserting collateral estoppel in their motion for
12
summary judgment.
13
14
Pryor’s
Pryor is precluded from relitigating the lawfulness of the
officers’ entry into his home.
15
2. Lawfulness of the Officers' Warrantless Entry
16
Even if collateral estoppel did not apply, Defendants are
17
entitled to summary adjudication that the officers’ entry into
18
Pryor’s home was lawful.
19
The Fourth Amendment generally prohibits warrantless entry of
20
a person’s home, whether to make an arrest or to conduct a search,
21
unless an exception to the warrant requirement, such as consent,
22
emergency or exigency, applies.
23
Francisco, 598 F.3d 528, 533 (9th Cir. 2010).
24
that the officers' entry into the home was lawful based on
25
Ayatch's consent, exigent and emergency circumstances, and the
26
probable cause that they had to arrest Pryor for violation of
27
three different provisions of the penal code.
Espinoza v. City and Cnty. of San
28
15
Defendants argue
1
The Fourth Amendment’s warrant requirement does not apply to
2
an officer’s entry into a person’s home in situations in which
3
voluntary consent has been obtained from the individual whose
4
property is searched, Schneckloth v. Bustamonte, 412 U.S. 218
5
(1973), or “from a third party who possessed common authority over
6
or other sufficient relationship to the premises or effects sought
7
to be inspected.”
8
(1974).
9
“mutual use of the property [and] joint access or control for most
United States v. Matlock, 415 U.S. 164, 171
A third party’s common authority rests on his or her
United States District Court
For the Northern District of California
10
purposes.”
11
apparent authority doctrine, a search is valid if the government
12
proves that the officers who conducted it reasonably believed that
13
the person from whom they obtained consent had the actual
14
authority to grant that consent.”
15
F.3d 1163, 1170 (9th Cir. 2003).
16
enter must be judged against an objective standard: would the
17
facts available to the officer at the moment warrant a man of
18
reasonable caution in the belief that the consenting party had
19
authority over the premises?”
20
177, 188 (1990).
21
Id. at 171 n.7 (alterations added).
“Under the
United States v. Davis, 332
The “determination of consent to
Illinois v. Rodriguez, 497 U.S.
Pryor argues that Ayatch lacked apparent common authority to
22
consent to the officers’ entry into the home.
The basis for
23
Ayatch’s apparent common authority to consent is his exchange with
24
Peterson.
25
following: (1) he formerly lived at the residence, which belonged
26
to his mother, (2) he was able to come and go from the residence
27
whenever he pleased, (3) his mother sometimes asked him to talk to
28
Pryor, who lived at the residence, (4) Pryor was on drugs, (5) his
It is undisputed that Ayatch told Peterson the
16
1
mother “couldn’t take it” and had to leave the residence, and
2
(6) when Ayatch entered the home, Pryor threatened to kill him.
3
Ayatch had a key to the residence and asked the police whether
4
they needed a key.
5
Pryor’s mother did not specifically ask him to check on Pryor that
6
day, he decided to do so.
7
Ayatch also told Peterson that, although
Pryor asserts that Ayatch did not have apparent common
8
authority to consent to the officers’ entry into the house because
9
Ayatch did not live there and his mother had not asked him to
United States District Court
For the Northern District of California
10
11
check on Pryor that particular day.
In United States v. Ayoub, 498 F.3d 532, 537-39 (6th Cir.
12
2007), a case upon which Defendants rely, the Sixth Circuit found
13
that the homeowners’ daughter had common authority and “at
14
minimum” apparent authority to consent because she had a key to
15
the residence, lived nearby and was the caretaker of the residence
16
while her parents were out of the country.
17
who argued that the daughter lacked authority to consent, was the
18
son of the homeowners.
19
not Ayoub actually resided at the house, but the court noted that
20
he was seen “going to and from the house.”
21
held that, even assuming Ayoub could have asserted an interest in
22
the home that “eliminated” the daughter’s authority to consent to
23
the search, he never denied consent.
24
removing marijuana from the rafters of the garage, Ayoub arrived,
25
exited his car, removed his shirt and spun around in circles,
26
proclaiming, “The weed is mine.
27
life.”
28
had apparent common authority to consent to the officers’ entry
Id. at 536.
The defendant, Ayoub,
The decision does not indicate whether or
Id.
Id. at 540.
The court
While the officers were
Take me to jail.
You ruined my
Thus, Ayoub supports a finding that Ayatch
17
1
into the residence, but the present case differs in that Pryor
2
erratically objected to the officers’ entry into the residence.
3
Relying on Georgia v. Randolph, 547 U.S. 103 (2006), Pryor
4
argues that the officers did not have consent to enter the home
5
because he told the officers to leave and refused to consent to
6
their entry.
7
after a domestic dispute, her husband took their son away from the
8
home.
9
she had separated from her husband and had taken her son to Canada
In Randolph, a wife complained to the police that,
The wife and son had recently returned to the home after
United States District Court
For the Northern District of California
10
for several weeks.
11
that her husband used cocaine and his habit caused financial
12
troubles.
13
cocaine use and stated that he had removed their son to a
14
neighbor’s house because he wanted to prevent his wife from
15
leaving the country again with their son.
16
allow the police into the home to search for evidence of cocaine
17
use, but the wife consented to the search.
18
When officers reached the house, she told them
When the husband returned to the scene, he denied
The husband refused to
The Court held that the officers’ warrantless entry into the
19
home to conduct the search violated the Fourth Amendment because a
20
co-tenant lacks authority to give consent over a present,
21
objecting co-tenant.
22
Court stated that “this case has no bearing on the capacity of the
23
police to protect domestic violence victims.”
24
Court explained,
25
26
27
28
Id. at 114-15.
In so holding, however, the
Id. at 118.
The dissent's argument rests on the failure to
distinguish two different issues: when the police may
enter without committing a trespass, and when the
police may enter to search for evidence. No question
has been raised, or reasonably could be, about the
authority of the police to enter a dwelling to protect
18
The
1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
a resident from domestic violence; so long as they
have good reason to believe such a threat exists, it
would be silly to suggest that the police would commit
a tort by entering, say, to give a complaining tenant
the opportunity to collect belongings and get out
safely, or to determine whether violence (or threat of
violence) has just occurred or is about to (or soon
will) occur, however much a spouse or other co-tenant
objected . . . Thus, the question whether the police
might lawfully enter over objection in order to
provide any protection that might be reasonable is
easily answered yes.
Id. (internal citations omitted)
In making this explanation, the Court cited with approval a
treatise’s observation that
even when . . . two persons quite clearly have equal
rights in the place, as where two individuals are
sharing an apartment on an equal basis, there may
nonetheless sometimes exist a basis for giving greater
recognition to the interests of one over the other
. . . . [W]here the defendant has victimized the
third-party . . . the emergency nature of the
situation is such that the third-party consent should
validate a warrantless search despite defendant's
objections.”
17
Id. (quoting 4 LaFave, Search and Seizure: A Treatise on the
18
Fourth Amendment, § 8.3(d)) (alterations in original).
19
Thus, Randolph does not foreclose Defendants from entering
20
the residence based on Ayatch’s consent, over the objections of
21
his brother, who was suspected of domestic violence, provided that
22
the officers had “good reason” to believe that such a threat
23
existed and the brothers were on equal footing with regard to
24
25
26
27
28
19
1
their rights in the residence.8
2
belief that there was a risk of imminent violence.
3
reported to Peterson that Pryor had threatened his life, was on
4
drugs and drove his mother from their residence.
5
could hear Pryor screaming, destroying property in the residence,
6
and threatening to kill them.
7
The officers had a reasonable
Ayatch
The officers
The brothers were on equal footing, in the sense that they
8
were two adult sons who had access to their mother’s residence by
9
virtue of her permission.
Although Ayatch was not a resident of
United States District Court
For the Northern District of California
10
the property at that time, and Pryor was, Ayatch had informed
11
Peterson that he formerly lived there, had a key, and could come
12
and go every day, whenever he pleased.
13
recognized that the “authority which justifies the third-party
14
consent does not rest upon the law of property, with its attendant
15
historical and legal refinements,” but rests instead on mutual use
16
of the property and joint access or control for most purposes.
17
Matlock, 415 U.S. at 171 n.7.
The Supreme Court has
18
19
20
21
22
23
24
25
26
27
28
Pryor also relies on United States v. Purcell, 526 F.3d 953
(6th Cir. 2008), to argue that apparent common authority was
lacking. In Purcell, the Sixth Circuit held that apparent
authority was lacking because the officers searched a backpack in
a motel room based on a woman’s consent when it was questionable
that she had authority to consent to the search. Id. at 963-65.
The woman had given consent to search a number of bags in the
room. After the officers searched a duffel bag and it contained
men’s clothing and none of the woman’s personal effects, they
proceeded to search a backpack, relying on the woman’s consent.
The court concluded that the search was unreasonable because the
officers could have resolved the ambiguity by further questioning
the woman, who stood outside of the room, to confirm whether she
had authority to consent, but they failed to do so. Id. at 964.
However, Purcell is inapposite because it did not involve a threat
of imminent violence.
8
20
1
Thus, the officers, at the time, had sufficient grounds to
2
believe that Ayatch had common authority to consent to their entry
3
into the house for the purpose of containing Pryor.
4
the officers reasonably believed that Ayatch’s consent overrode
5
Pryor’s objections, given the threat of violence they detected,
6
Pryor’s destructive behavior, and indications that both brothers
7
were present at the residence based on their mother’s permission.
8
9
In addition,
Defendants also argue that the entry into the home was lawful
on the grounds that exigent and emergency circumstances existed.
United States District Court
For the Northern District of California
10
The “emergency exception stems from the police officers’ community
11
caretaking function and allows them to respond to emergency
12
situations that threaten life or limb.”
13
F.3d 752, 763 (9th Cir. 2009) (internal quotation marks omitted).
14
“By contrast, the exigency exception does derive from the police
15
officers’ investigatory function; it allows them to enter a home
16
without a warrant if they have both probable cause to believe that
17
a crime has been or is being committed and a reasonable belief
18
that their entry is necessary to prevent the destruction of
19
relevant evidence, the escape of the suspect, or some other
20
consequence improperly frustrating legitimate law enforcement
21
efforts.”
22
The Supreme Court recently reiterated that “reasonableness ‘must
23
be judged from the perspective of a reasonable officer on the
24
scene, rather than with the 20/20 vision of hindsight’ and that
25
‘[t]he calculus of reasonableness must embody allowance for the
26
fact that police officers are often forced to make split-second
27
judgments--in circumstances that are tense, uncertain, and rapidly
28
evolving.’”
Hopkins v. Bonvicino, 573
Id. (internal quotation and alteration marks omitted).
Ryburn v. Huff, 132 S. Ct. 987, 992 (2012) (per
21
1
curiam) (quoting Graham v. Connor, 490 U.S. 386, 396–397 (1989).
2
Defendants do not assert that Pryor was threatening to escape the
3
scene or destroy evidence.
4
Pryor posed a threat to officers and civilians at the scene.
5
particular, Pryor had threatened to kill his brother and the
6
officers, he was reportedly under the influence of drugs and he
7
appeared to be acting in a destructive manner.
8
that Pryor had a machete, and the officers were informed that
9
Pryor’s mother had been driven out of the residence.
However, an emergency existed because
In
There was a risk
In Ryburn,
United States District Court
For the Northern District of California
10
the Court found that officers’ warrantless entry into a home was
11
reasonable based on an imminent threat of violence where there was
12
a rumor that a teenager had threatened to shoot up his school and,
13
when officers visited his home to investigate, his mother acted
14
suspiciously and immediately turned and ran into her house upon
15
being asked if there were guns in the house.
16
too, the officers were justified based on the community caretaking
17
exception in entering the residence without a warrant for the
18
purpose of curbing Pryor’s dangerous and destructive behavior.
19
Id. at 991.
Here,
Pryor argues that the circumstances did not necessitate
20
immediate entry into the house and that CPD policies and expert
21
evidence demonstrate that it was unreasonable for the officers to
22
enter without further investigating or calling for a SWAT team.
23
This argument is not persuasive.
24
First, Pryor has not established that policies were violated.
25
Policy 424 notes that officers may use force necessary to protect
26
themselves or others from serious injury.
27
violated, that is not evidence that the officers’ conduct was
28
unreasonable and, thus, unconstitutional.
22
Even if policies were
Pryor’s expert
1
concluded that the officers were unreasonable in failing to pursue
2
self-surrender tactics.
3
residence, the officers could coax Pryor into coming out.
4
expert’s opinion suggests that a different decision could have
5
been made, but is not evidence that the entry was unreasonable.
6
Pryor’s claims against Miller and Ray, on the grounds that
Clausen believed that, once inside the
The
7
they unlawfully entered the residence, and against McClain and
8
Clausen, on the grounds that they ordered the entry, are summarily
9
adjudicated in Defendants’ favor.
United States District Court
For the Northern District of California
10
B. Excessive Force
11
Defendants seek summary adjudication that no reasonable jury
12
could find that Ray's tasing of Pryor amounted to unreasonable
13
force under the Fourth Amendment and that, even if it did, Ray is
14
qualifiedly immune.
15
that there is no evidence to support a finding that McClain or
16
Clausen participated in any use of excessive force against Pryor.
17
Defendants also seek summary adjudication
Under Graham v. Connor, courts considering an excessive force
18
claim under the Fourth Amendment ask “whether the officers’
19
actions are objectively reasonable in light of the facts and
20
circumstances confronting them.”
21
quotation marks omitted).
22
nature and quality of the intrusion on the individual’s Fourth
23
Amendment interests against the countervailing governmental
24
interests at stake.”
25
omitted).
26
490 U.S. at 397 (internal
Courts are required to balance “the
Id. at 396 (internal quotation marks
The government’s interest in the use of force is evaluated
27
“by examining three core factors, the severity of the crime at
28
issue, whether the suspect poses an immediate threat to the safety
23
1
of the officers or others, and whether he is actively resisting
2
arrest or attempting to evade arrest by flight. . . These factors,
3
however, are not exclusive.”
4
396) (internal quotation marks omitted).
5
requires courts to examine the totality of the circumstances and
6
consider whatever specific factors may be appropriate in a
7
particular case, whether or not listed in Graham.
8
important single element” of the three factors specified in Graham
9
is “whether the suspect poses an immediate threat to the safety of
Id. (citing Graham, 490 U.S. at
The Ninth Circuit
Id.
The “most
United States District Court
For the Northern District of California
10
the officers or others.”
11
702 (9th Cir. 2005) (quoting Chew v. Gates, 27 F.3d 1432, 1441
12
(9th Cir. 1994)).
13
Smith v. City of Hemet, 394 F.3d 689,
In the Ninth Circuit, the use of a X26 taser in dart mode has
14
recently been held to constitute an “intermediate, significant
15
level of force that must be justified by the governmental interest
16
involved,” due to the intense pain “felt throughout the body . . .
17
effectively commandeering the victim’s muscles and nerves.”
18
v. MacPherson, 630 F.3d 805, 825-26 (9th Cir. 2010).
19
20
21
Bryan
Defendants argue that Ray's first and second firing of his
taser was reasonable.
Ray’s use of the taser must be justified by the governmental
22
interest at stake at the time he deployed the weapon.
Relevant to
23
the severity of the crime that the officers encountered, Pryor was
24
charged with attempted arson, assaulting a peace officer with a
25
deadly weapon, resisting arrest and making death threats against
26
Ayatch.
27
crime resulting in death, under California Penal Code section 422.
28
This is a serious crime, which includes a sentence of up to one
He eventually plead guilty to threatening to commit a
24
1
year in county jail or a maximum of three years in state prison.
2
However, the crime’s severity is mitigated by the fact that it was
3
not accompanied by action.
4
table leg to threaten his brother, at the time that the officers
5
had arrived and Pryor’s brother was outside of the residence,
6
Pryor was not in a position to act on his threat immediately.
7
Because Pryor had used a stick or
However, Ray first fired his taser when he heard shots being
8
fired.
Although Ray did not know at that moment whether Pryor was
9
firing a weapon, before entering the home he considered the
United States District Court
For the Northern District of California
10
possibility that Pryor could have access to firearms.
There was
11
little time for Ray to determine for certain whether Pryor was
12
firing a gun.
13
strong governmental interest in ensuring that Pryor was
14
immobilized.
15
violated the Fourth Amendment when he first fired the taser.
Given the danger posed by gunfire, there existed a
Thus, a reasonable jury could not find that Ray
16
Pryor also argues that a jury could find that Ray's first
17
tasing was unreasonable because it was provoked by Miller's use of
18
excessive force in shooting Pryor, but this argument is not
19
persuasive.
20
2002), the Ninth Circuit stated that "where an officer
21
intentionally or recklessly provokes a violent confrontation, if
22
the provocation is an independent Fourth Amendment violation, he
23
may be held liable for his otherwise defensive use of deadly
24
force."
25
Washington County, 2011 WL 6760348, *13 (9th Cir.), a case upon
26
which Pryor relies.
27
28
In Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.
This principle was recently applied in Glenn v.
In Glenn, two officers were sued for fatally shooting a
teenager.
Both officers arrived at the teenager’s home after his
25
1
mother reported that he was heavily intoxicated, breaking windows
2
and threatening to kill himself with a pocketknife.
3
immediately aimed their service weapons at the teenager, who was
4
standing outside of his home, and screamed at him in an excited,
5
frantic manner to drop the knife.
6
the scene, armed with a beanbag gun, one of the officers
7
immediately ordered him to shoot beanbags at the teenager.
8
Neither of the two defendant officers carried a taser or asked the
9
third officer whether he had a taser.
The officers
When a third officer arrived at
Both defendant officers
United States District Court
For the Northern District of California
10
determined that they would use deadly force if the teenager moved
11
towards his house.
12
rounds by the third officer, the teenager took one or two steps
13
towards his house, and the two defendant officers shot and killed
14
him.
15
After the teenager was shot with the beanbag
Weighing the Graham factors, the Ninth Circuit found
16
sufficient evidence that the firing of beanbag rounds amounted to
17
excessive force.
18
unreasonable use of that less-than-lethal force precipitated the
19
defendant officers’ use of deadly force.
20
that a reasonable jury could find that the defendant officers’
21
rapid escalation of the situation was unreasonable.
22
The court also found evidence that the
The court determined
This case, however, is distinguishable.
Although Ray
23
acknowledged that he first tased Pryor as a result of the
24
shooting, there is no evidence that Ray participated in Miller’s
25
decision to shoot Pryor.
26
Pryor.
27
in motion a chain of events that led to Miller shooting Pryor and
28
then Ray tasing him.
Miller acted independently in shooting
There is no evidence that unreasonable conduct by Ray set
In contrast, in Glenn, both defendant
26
1
officers participated in escalating the confrontation to the point
2
that they were provoked into using lethal force.
3
With respect to the second tasing, the governmental interest
4
differs in that, at the moment it was done, Pryor was on the
5
ground, shot and bleeding.
6
his taser a second time before Clausen asked what was in Pryor’s
7
hands and shouted that he saw a knife.
8
holding a knife or a table leg.
9
a second time when Pryor failed to comply with orders that he roll
The taser video shows that Ray fired
Ray did not see Pryor
Id. at 196:8-18.
Ray tased Pryor
United States District Court
For the Northern District of California
10
over onto his stomach.
11
would be tased a second time if he did not roll onto his stomach.
12
See Bryan, 630 F.3d at 831 (noting “that police officers normally
13
provide such warnings where feasible . . . and that the failure to
14
give such a warning is a consideration” in weighing the use of
15
reasonable force).
16
in the second tasing because he used what has now been held to be
17
an intermediate level of force, although by that time Pryor did
18
not appear to pose an immediate threat to the safety of the
19
officers or others and was not actively resisting arrest or
20
attempting to evade arrest by flight.
21
Finally, Ray did not warn Pryor that he
Ray could be found to have acted unreasonably
However, Defendants argue that, even if Ray's conduct was
22
unreasonable, he is protected by qualified immunity.
23
doctrine of qualified immunity protects government officials from
24
liability for civil damages insofar as their conduct does not
25
violate clearly established statutory or constitutional rights of
26
which a reasonable person would have known.”
27
555 U.S. 223, 231 (2009) (internal quotation marks omitted).
28
“Qualified immunity balances two important interests--the need to
27
“The
Pearson v. Callahan,
1
hold public officials accountable when they exercise power
2
irresponsibly and the need to shield officials from harassment,
3
distraction, and liability when they perform their duties
4
reasonably.”
5
Id.
To determine whether qualified immunity applies, courts
6
employ a two-step test: “first, we decide whether the officer
7
violated a plaintiff’s constitutional right; if the answer to that
8
inquiry is ‘yes,’ we proceed to determine whether the
9
constitutional right was ‘clearly established in light of the
United States District Court
For the Northern District of California
10
specific context of the case,’ at the time of the events in
11
question.”
12
(en banc) (citing Robinson v. York, 566 F.3d 817, 821 (9th Cir.
13
2009)).
14
prongs of the analysis should be addressed first.
15
Katz, 533 U.S. 194, 201 (2001).
Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011)
It is within the court’s discretion which of the two
Saucier v.
16
Defendants point out that the tasing occurred before the
17
Ninth Circuit decisions in Bryan, 630 F.3d at 805, and Mattos, 661
18
F.3d at 433, issued in 2010 and 2011, respectively.
19
court found that, viewing the facts in the light most favorable to
20
the non-moving party, the defendant police officer used excessive
21
force when he fired a taser in dart-mode at a clearly unarmed man,
22
who had been pulled over for a seat-belt law infraction and was
23
standing outside his vehicle having a bizarre, but stationary,
24
tantrum.
25
the officer was qualifiedly immune because, although case law
26
placed the officer on fair notice that an intermediate level of
27
force was unjustified, no Supreme Court or Ninth Circuit case, as
28
of July 24, 2005, established that use of a taser, such as an X26
630 F.3d at 831-32.
In Bryan, the
The court, however, concluded that
28
1
in dart mode, constituted an intermediate level of force.
2
833.
3
such a rule and did so after the incident at issue in this case
4
occurred.
5
established constitutional law, he is entitled to qualified
6
immunity as to that act.
7
Id. at
Indeed, Bryan was the first Ninth Circuit case to announce
Because Ray’s conduct did not violate any clearly
In sum, Ray is entitled to summary judgment on Pryor’s claim
8
that the first tasing amounted to excessive force.
9
qualifiedly immune from liability for the second tasing, as well
United States District Court
For the Northern District of California
10
11
He is
as for the first.
As noted earlier, Defendants seek summary adjudication that
12
neither Clausen nor McClain were integral participants in any use
13
of excessive force against Pryor.
14
set in motion a series of acts by others, or knowingly refused to
15
terminate a series of acts by others, which they knew or
16
reasonably should have known would cause Ray and Miller to use
17
excessive force.
18
646 (9th Cir. 1991).
19
Pryor contends that both men
See Larez v. City of Los Angeles, 946 F.2d 630,
Pryor’s expert has opined that Clausen and McClain
20
disregarded standards and training regarding officer contacts with
21
mentally ill subjects.
22
indicating that Clausen or McClain knew or should have known that
23
Pryor was mentally ill.
24
clear from the onset of the officer’s arrival that Mr. Pryor was
25
suffering from a mental illness” fails to demonstrate that either
26
man had personal knowledge of Pryor’s mental condition.
27
report also indicates that a prior incident in which Pryor was
28
involved resulted in his arrest and listing in the Law Enforcement
However, Pryor has not pointed to evidence
Clark’s conclusory statement that “it was
29
Clark’s
1
Data Systems as a mentally incompetent person.
Sudano Dec., Ex.
2
3, Clark Report at 6.
3
Department had access to this data system, and the officers could
4
have instantly accessed the information themselves or through the
5
department dispatcher.
6
California are trained on the existence and use of this data
7
system.
8
information about Pryor from the department dispatcher, but that
9
information did not include his mental condition.
Clark noted that the Clearlake Police
Id.
According to Clark, all officers in
However, Clark acknowledges that the officers received
Clark does not
United States District Court
For the Northern District of California
10
opine, and Pryor has not pointed to authority, that constitutional
11
standards required Clausen and McClain, or any of the officers at
12
the scene, independently to check the data system about the
13
suspect, when dispatchers who had access to that information had
14
already communicated with the responding officers.
15
Pryor has not produced sufficient evidence to raise a
16
disputed issue of material fact that Clausen or McClain set in
17
motion a series of acts or knowingly refused to terminate a series
18
of acts by others, which they knew or should have known would
19
cause Ray and Miller to use excessive force.
20
judgment in favor of Clausen and McClain is warranted.
Thus, summary
21
C. Due Process
22
Defendants move for summary judgment as to Pryor’s claims
23
under the due process clauses of Fifth and Fourteenth Amendments.
24
Pryor does not dispute Defendants’ contention that due process
25
under the Fifth Amendment governs only the conduct of federal
26
officers.
27
claim under the Fourteenth Amendment is not actionable because his
28
allegations of an unconstitutional entry into his home and use of
Nor has Pryor opposed Defendants’ argument that his
30
1
excessive force are covered by a more specific provision, the
2
Fourth Amendment.
3
because it has “always been reluctant to expand the concept of
4
substantive due process” under the Fourteenth Amendment, where a
5
particular “Amendment provides an explicit textual source of
6
constitutional protection against a particular sort of government
7
behavior, that Amendment, not the more generalized notion of
8
substantive due process” must be the guide for analyzing such
9
claims.
United States District Court
For the Northern District of California
10
Indeed, the Supreme Court has stated that,
County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998).
Accordingly, Defendants are entitled to summary judgment as
11
to Pryor’s due process claims.
12
D. Equal Protection
13
Defendants seek summary adjudication as to Pryor’s § 1983
14
claim based on a violation of equal protection principles due to
15
his mental illness and race.
16
“To prevail on its claim under the equal protection clause of
17
the Fourteenth Amendment, a plaintiff must demonstrate that [the
18
government’s law] enforcement had a discriminatory effect and the
19
police were motivated by a discriminatory purpose.”
20
City & Cnty. of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007)
21
(citing Wayte v. United States, 470 U.S. 598, 608 (1985)).
22
establish a discriminatory effect, the claimant must show that
23
similarly situated individuals were treated differently.
24
at 1153.
25
establish that the decision-maker selected or reaffirmed a
26
particular course of action at least in part “because of,” not
27
merely “in spite of,” its adverse effects upon an identifiable
28
group.
Rosenbaum v.
To
See id.
To show discriminatory purpose, a plaintiff must
Id.
31
1
Pryor’s equal protection claim warrants summary adjudication
2
in favor of Defendants because he has presented no evidence that
3
similarly situated individuals were treated differently or that
4
Defendants pursued a course of action because of his race or
5
mental illness.
6
aware of Pryor’s mental illness prior to the incident.
7
Peterson’s alleged statements to Pryor, shortly before the
8
shooting and tasing, that he did not talk to his “kind,” or his
9
“people,” fail to establish Defendants’ racial animus.
First, there is no evidence that Defendants were
Second,
Peterson
United States District Court
For the Northern District of California
10
was not named as a Defendant and there is no evidence that
11
Defendants harbored racial hostility at the time of the incident.
12
Pryor’s reliance on an admission of Officer Todd Miller, who is
13
not a defendant and did not participate in this incident, that he
14
told an African American that he did not like his “kind” and that
15
he should “move” is similarly insufficient.
16
Miller’s later posting on Facebook about a “habib,” while evidence
17
of racial insensitivity, would not support a reasonable jury’s
18
finding that Defendant Carl Miller intended to harm Pryor because
19
of his race.
20
Third, Defendant Carl
Defendants are entitled to summary judgment with respect to
21
the § 1983 claim to the extent it is based on an equal protection
22
violation.
23
E. Zone of Privacy under the Fourth and Ninth Amendments
24
Defendants request summary adjudication with respect to
25
Pryor's § 1983 claim alleging violations of his zone of privacy
26
claim under the Fourth and Ninth Amendments.
27
not opposed on this point, this aspect of his claim is adjudicated
28
against him.
32
Because Pryor has
1
II. Section 1983 Claims Against the City
2
Pryor’s § 1983 claim against the City can only be brought in
3
accordance with Monell v. Department of Social Services, 436 U.S.
4
658, 690-91 (1978).
5
liable for the unconstitutional acts of its employees on the basis
6
of an employer-employee relationship with the tortfeasor, it may
7
be held liable under Monell when a municipal policy or custom
8
causes an employee to violate another’s constitutional right.
9
at 691-92.
United States District Court
For the Northern District of California
10
Although a city may not be held vicariously
Id.
The Ninth Circuit has stated that municipal liability under
11
Monell may be established in one of three ways: (1) "the plaintiff
12
may prove that a city employee committed the alleged
13
constitutional violation pursuant to a formal governmental policy
14
or a longstanding practice or custom which constitutes the
15
standard operating procedure of the local governmental entity;"
16
(2) "the plaintiff may establish that the individual who committed
17
the constitutional tort was an official with final policy-making
18
authority and that the challenged action itself thus constituted
19
an act of official governmental policy;" or (3) "the plaintiff may
20
prove that an official with final policy-making authority ratified
21
a subordinate's unconstitutional decision or action and the basis
22
for it."
23
1992).
24
where its policy or custom is the “moving force behind the
25
constitutional violation.”
26
378, 389 (1989) (alterations omitted).
27
28
Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.
Under Monell, a city can only be held liable under § 1983
City of Canton v. Harris, 489 U.S.
Pryor argues that the City has several informal customs that
led to the violation of his constitutional rights.
33
Specifically,
1
Pryor contends that the City’s unconstitutional customs comprise
2
negligent training, negligent hiring, and tolerating within the
3
police force known bigotry, substance abuse, and deliberate
4
indifference to the mentally disabled.
5
It is well established that a city may be held liable,
6
pursuant to § 1983, for failure to train its employees.
Id.
7
However, “[o]nly where a municipality's failure to train its
8
employees in a relevant respect evidences a ‘deliberate
9
indifference’ to the rights of its inhabitants can such a
United States District Court
For the Northern District of California
10
shortcoming be properly thought of as a city ‘policy or custom’
11
that is actionable under § 1983.”
12
13
14
15
16
17
18
Id.
City of Canton explains,
In resolving the issue of a city's liability, the
focus must be on adequacy of the training program in
relation to the tasks the particular officers must
perform . . . Neither will it suffice to prove that an
injury or accident could have been avoided if an
officer had had better or more training, sufficient to
equip him to avoid the particular injury-causing
conduct.
Id. at 390-91.
Pryor has presented insufficient evidence to support his
19
contention that negligent training led to the violation of his
20
constitutional rights.
21
the officers were inadequately trained as to the safe apprehension
22
of mentally impaired and barricaded subjects.
23
stated that “inadequate training and ratification of the shooting
24
of Mr. Pryor is very alarming,” Sudano Dec., Clark Report at 11,
25
and he found “no evidence that any of the officers were either
26
disciplined or at a minimum retrained in proper arrest methods,
27
tactical deployments or use of force,” id., his report did not
Pryor’s expert, Clark, does not opine that
28
34
Although Clark
1
identify or discuss any specific inadequacy in the department’s
2
training program.
3
better” than to use their chosen tactics by virtue of their
4
training and established standards.
5
follow certain established policies is not sufficient to infer
6
that the City’s training program was inadequate and constituted
7
the moving force behind violations of Pryor’s constitutional
8
rights.
9
Rather, Clark contends that the officers “knew
That the officers failed to
Pryor also asserts that the City had a custom of negligent
United States District Court
For the Northern District of California
10
hiring.
11
assertion.
12
report discusses a custom or long-standing practice of negligent
13
hiring by the department.
14
even if contrary to departmental policies, is not sufficient to
15
prove a custom of negligent hiring.
16
Pryor cites his expert’s report in support of this
However, neither the particular citation nor Clark’s
The hiring of Miller and Ray alone,
Furthermore, Pryor lacks evidence that the hiring decisions,
17
even if amounting to a policy of deliberate disregard for the
18
constitutional rights of Clearlake residents, were “closely
19
related” to his ultimate injury.
20
391 (noting that “for liability to attach . . . the identified
21
deficiency in a city’s [policy] must be closely related to the
22
ultimate injury.”).
23
contrary to certain CPD hiring policies.
24
Canton, it is not sufficient to show that the shooting would not
25
have occurred if Miller had not been hired.
26
show that Miller’s lack of qualifications for his position was the
27
moving force behind the violation of Pryor’s constitutional
28
rights.
See City of Canton, 489 U.S. at
Pryor presents evidence Miller was hired
However, under City of
Rather, Pryor must
Clark’s report notes that Miller’s blood test, taken
35
immediately after the shooting, indicated a presumptively positive
2
result for Benzadiazepine.
3
prescribed drug to relieve hand tremors.
4
Miller’s hand tremors or his use of Benzadiazepine should have
5
disqualified him from employment.
6
submitted evidence about Miller’s conduct in the past, but he has
7
not pointed to evidence that such conduct continued to the present
8
or that it was implicated in the shooting.
9
conduct and his admitted consumption of approximately two glasses
10
United States District Court
For the Northern District of California
1
of wine the day before, Pryor has failed to produce evidence that
11
this precipitated any excessive force.
12
Court to infer that CPD’s decision to hire Miller despite his past
13
conduct led to a violation of Pryor’s constitutional rights.
14
Likewise, Pryor has failed to point to any evidence
Miller acknowledged taking this
It is not evident that
In addition, Pryor has
Despite Miller’s past
There is no basis for the
15
connecting Ray’s pre-employment conduct and the incident at hand.
16
Finally, the decision to enter the residence was made by
17
Clausen and ratified by McClain, after a discussion with Peterson.
18
Pryor has not pointed to evidence that negligent hiring of Miller
19
and Ray was the driving force for the entry into the residence.
20
In sum, the record is insufficient to support Pryor’s Monell claim
21
on a theory of negligent hiring.
22
Similarly, Pryor’s Monell claim based on the CPD’s alleged
23
custom of tolerating substance abuse fails because the evidence
24
submitted, including Facebook postings about alcohol use from
25
Miller’s social circle, does not evidence an actionable custom.
26
Furthermore, Pryor has not demonstrated how such a custom, even if
27
established, caused his injury.
28
36
1
Pryor also contends that his constitutional rights were
2
violated by a “custom of known bigotry.”
Pryor asserts that posts
3
on Facebook among Miller and department personnel and officers
4
demonstrate the department’s indifference to derogatory remarks.
5
Pryor has not presented authority indicating that such
6
indifference amounts to a cognizable custom for purposes of a
7
Monell claim.
8
friends, Sergeant Brenda Crandall and Nick Bennett, Miller’s
9
background investigator, may have had supervisory responsibility
Evidently, only two of Miller’s CPD Facebook
United States District Court
For the Northern District of California
10
over him.
11
custom or long-standing practice, Pryor has not produced evidence
12
that the department’s failure to reprimand officers for derogatory
13
remarks constituted the moving force that led to his injury.
14
Moreover, even if such indifference amounted to a
The City is entitled to summary judgment as to Pryor’s Monell
15
claim.
16
III. Assault and Battery
17
Defendants McClain, Clausen and Ray seek summary adjudication
18
of Pryor's battery and assault claims against them.
In a claim
19
for battery by a peace officer, under California law, a plaintiff
20
must prove that (1) the defendant intentionally touched the
21
plaintiff, (2) the defendant used unreasonable force to arrest,
22
prevent the escape of, or overcome the resistance of the
23
plaintiff, (3) the plaintiff did not consent to the use of that
24
force, (4) the plaintiff was harmed, and (5) the defendant’s use
25
of unreasonable force was a substantial factor in causing the
26
plaintiff’s harm.
Judicial Council of California, Civil Jury
27
Instruction 1305.
See also Edson v. City of Anaheim, 63 Cal. App.
28
4th 1269, 1272 (1998).
A claim for assault requires, among other
37
1
elements, proof that the defendant threatened to touch the
2
plaintiff in a harmful or offensive manner.
3
California, Civil Jury Instruction 1301.
Judicial Council of
McClain is entitled to summary adjudication on this claim
4
5
because there is no evidence that he threatened or touched Pryor.
6
Clausen is entitled to summary adjudication on this claim because
7
he touched Pryor only to stop his bleeding.
8
Clausen Dep. at 223:9-19.
9
was harmed by Clausen’s touching or that he did not consent to it.
United States District Court
For the Northern District of California
10
Allen Dec., Ex. E,
Pryor has not produced evidence that he
There is no evidence that Clausen threatened to touch him.
If Pryor establishes that Ray used excessive force in tasing
11
12
him a second time, then Ray may be individually liable for
13
battery.
14
threatened him with use of unreasonable force.
15
summary adjudication of the assault claim against him, but not the
16
battery claim.
However, Pryor has not provided evidence that Ray
Ray is entitled to
17
CONCLUSION
18
The Court grants Defendants’ unopposed motion for summary
19
judgment with respect to Pryor’s claims for intentional infliction
20
of emotional distress; negligence; common law negligent hiring,
21
training, supervision and discipline; and violations of California
22
Civil Code sections 52.1 and 51.7 and the ADA and Rehabilitation
23
Act.
24
25
26
Summary judgment in favor of the City is granted with respect
to Pryor’s Monell claim against it.
Defendants’ motion for summary judgment as to Pryor’s § 1983
27
claim is granted as follows.
28
was lawful.
The officers’ entry into the home
Ray is entitled to summary judgment as to the § 1983
38
1
claim based on excessive force: Pryor’s evidence is insufficient
2
to support a claim against Ray as to the first tasing and, even if
3
the second tasing was wrongful, Ray is qualifiedly immune from
4
liability.
5
judgment on Pryor’s § 1983 claim for excessive force.
6
judgment is granted in favor of Defendants as to the § 1983 claim
7
based on violations of due process, equal protection and privacy
8
rights.
9
McClain and Clausen are also entitled to summary
Summary
McClain and Clausen are entitled to summary judgment on the
United States District Court
For the Northern District of California
10
assault and battery claims.
11
adjudication of the assault claim, but not the battery claim.
12
Ray is entitled to summary
Defendants do not move for summary adjudication of Pryor’s
13
claim against Miller of excessive force.
14
against Miller based on his alleged use of excessive force will be
15
tried to a jury, along with Pryor’s battery claim against Ray.
16
Thus, the § 1983 claim
On November 4, 2011 the parties convened for an unsuccessful
17
mediation session with William Simmons.
18
Certification of the ADR session that the ADR process was not
19
complete.
20
conference with Mr. Simmons or with a magistrate judge on a date
21
prior to the Final Pretrial Conference, which is scheduled for
22
September 19, 2012.
23
week, that they have scheduled a settlement conference with Mr.
24
Simmons.
25
magistrate judge for a settlement conference.
26
27
28
Mr. Simmons noted in his
The parties shall meet for a further settlement
The parties shall file a notice, within a
If they do not, the Court will refer the case to a
IT IS SO ORDERED.
Dated:
CLAUDIA WILKEN
United States District Judge
39
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?