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)

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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

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