Forte et al v. Hyatt Summerfield Suites Pleasanton et al

Filing 124

ORDER GRANTING DEFENDANTS ( 54 , 96 ) MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 12/18/2012. (ndr, COURT STAFF) (Filed on 12/18/2012)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 EUGENE E. FORTE, 6 7 8 9 United States District Court For the Northern District of California 10 11 No. C 11-2568 CW Plaintiff, ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 54 & 96) v. HYATT SUMMERFIELD SUITES, PLEASANTON, et al., Defendants. ________________________________/ Plaintiff Eugene Forte, proceeding pro se, brings this action 12 against Defendants, Hyatt Summerfield Suites of Pleasanton, Ana 13 Villa, the Pleasanton Police Department (PPD), Officer Jerry 14 Nicely, Officer Mardene Lashley, and Officer Martens for wrongful 15 eviction, false imprisonment, negligent infliction of emotional 16 distress, assault, battery, and various civil rights violations 17 under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. 18 move for summary judgment. 19 Hyatt (Hotel Defendants) move for judgment on the pleadings and 20 Plaintiff has requested leave to amend his complaint. 21 considered oral argument and the papers filed by the parties, the 22 Court grants Defendants’ motions for summary judgment and denies 23 as moot Hotel Defendants’ motion for judgment on the pleadings. 24 25 Defendants now In addition, Defendants Villa and Having BACKGROUND The following facts are undisputed, unless otherwise noted. 26 On March 6, 2010, Plaintiff, his wife, and his four children 27 checked into the Hyatt Summerfield Suites in Pleasanton, 28 California, early in the morning. Declaration of Steven L. 1 Roycraft, Ex. 4, PPD Audio Recording, at 5:30-:35. 2 a few hours in the room, Plaintiff returned to the lobby of the 3 hotel at around 10:00 a.m. to ask where he could find breakfast 4 for himself and his family. 5 The clerk at the front desk assisted him and then watched as 6 Plaintiff began to distribute copies of a newspaper called Badger 7 Flats Gazette, which Plaintiff self-publishes, to other hotel 8 guests in the lobby.1 9 also spoke with several hotel guests about the newspaper and told After spending Declaration of Monique Paniagua ¶ 2. Id. ¶ 3. According to the clerk, Plaintiff United States District Court For the Northern District of California 10 them that his life was in jeopardy. 11 Plaintiff states that he “never spoke to multiple guests.” 12 Forte Decl. ¶ 7. Paniagua Decl. ¶ 3. Eugene 13 After Plaintiff left the lobby, the front desk clerk 14 telephoned the hotel’s manager, Veronica Villa,2 to report that 15 several guests had complained about Plaintiff’s behavior. 16 Paniagua Decl. ¶ 4; Declaration of Veronica Villa ¶¶ 3-4. 17 Plaintiff does not, and cannot, provide evidence that no guests 18 complained or that the clerk did not report to Villa that they 19 did. 20 happened in the lobby. Villa then called Plaintiff’s room to discuss what had Villa Decl. ¶ 5. Before she could ask 21 22 23 24 25 26 27 28 1 The newspaper is essentially a collection of re-printed letters between Plaintiff and the police department in Los Banos, California, where Plaintiff and his family reside. Paniagua Decl., Ex. A, Badger Flats Gazette. The letters pertain to a series of comments that were apparently left on Plaintiff’s YouTube page in February 2010 by a local high school student who threatened to assault Plaintiff for using racially insensitive language at a Los Banos city council meeting. Id.; Declaration of Eugene Forte ¶ 15. Plaintiff offers additional information regarding this incident in his declaration but, because that information does not pertain to his claims in this lawsuit, it is omitted from this background. See Eugene Forte Decl. ¶¶ 12, 14-15. 2 Villa, who is named in the complaint as “Ana Villa,” asserts that her true name is Veronica Villa. 2 1 Plaintiff to provide his version of events, however, Plaintiff 2 began telling Villa that his life was in danger and she needed to 3 call the Los Banos police. 4 and told Villa that if he was killed, it would be her fault. 5 Id. ¶ 8. 6 going to call the Pleasanton police to have him removed from the 7 hotel, id. ¶ 7; Plaintiff disputes only that she notified him of 8 her plan to call the police, Eugene Forte Decl. ¶ 10. 9 event, Villa called the police after she finished speaking with United States District Court For the Northern District of California 10 11 Id. ¶¶ 5-8. He then began to shout Villa claims that she then told Plaintiff that she was Plaintiff. In any Villa Decl. ¶ 9. Soon afterward, at approximately 11:00 a.m., PPD Officers 12 Nicely and Lashley arrived at the hotel. 13 Mardene Lashley ¶ 5; Declaration of Jerry Nicely ¶ 5. 14 the officers about Plaintiff’s erratic behavior in the lobby and 15 on the phone and expressed her concerns about him staying at the 16 hotel. 17 Decl. ¶¶ 6-7. 18 remove Plaintiff and his family from the hotel. 19 Lashley Decl. ¶¶ 6-7; Nicely Decl. ¶¶ 6-7. 20 arrived at Plaintiff’s hotel room, however, Plaintiff refused to 21 come outside to speak with them. 22 Decl. ¶ 9; Nicely Decl. ¶ 9. 23 through the door and window of the hotel room and telling them to 24 contact the Los Banos police department. 25 at 3:20-7:15. 26 at 6:20-:30, bolted the door to the room, id. at 9:55-10:15, and 27 refused to let them enter, id. 28 attempted to break down the door. Id. ¶ 11; Declaration of Villa told Villa Decl. ¶ 11; Lashley Decl. ¶¶ 6-7; Nicely The officers agreed to stand by as she attempted to Villa Decl. ¶ 11; When the three of them Villa Decl. ¶¶ 12-13; Lashley Instead, he began yelling at them Roycraft Decl., Ex. 4, He told the officers that they were in trouble, id. He alleges that the officers Eugene Forte Decl. ¶¶ 6, 19. 3 1 Over the next ninety minutes, Officers Nicely and 2 Lashley -- as well as several other PPD officers who later joined 3 them at the hotel -- spoke with Plaintiff through the hotel room 4 door in an effort to get him to leave. 5 Decl. ¶¶ 10, 16. 6 issued digital audio recorder to document their conversation with 7 Plaintiff. 8 exit the room during this period and, at several points, screamed 9 at the officers asking him to come outside. Lashley Decl. ¶ 10; Nicely During this period, the officers used a police- Lashley Decl. ¶ 8. Plaintiff refused all requests to Lashley Decl. ¶¶ 11- United States District Court For the Northern District of California 10 13; Nicely Decl. ¶ 14; Roycraft Decl., Ex. 4, at 16:25-17:15, 11 18:15-:40, 19:02-:14, 20:10-:15. 12 specific directives from Officers Nicely and Lashley, their 13 superior, PPD Sgt. Mickleburgh, and his superior, Lt. Bretzning. 14 Lashley Decl. ¶¶ 13-15; Nicely Decl. ¶ 15. 15 PPD’s offers for medical support despite telling the officers that 16 he had been injured and that his daughter might need medical 17 attention. 18 Recording, at 3; Roycraft Decl., Ex. 4, at 19:02; Nicely 19 Decl. ¶¶ 11-12. 20 about the Los Banos police and the purported death threats he had 21 received the previous month. 22 Decl. ¶¶ 11, 14; Roycraft Decl., Ex. 4, at 3:25-:50. 23 point, PPD officers called the Los Banos police and learned that a 24 restraining order had been issued against Plaintiff for 25 threatening statements that he had made about the town’s mayor. 26 Nicely Decl. ¶ 17; Lashley Decl. ¶ 9. He refused to respond to Plaintiff also refused Eugene Forte Decl., Ex. 3, Pl.’s Transcript of PPD Throughout the standoff, he continued to talk Nicely Decl. ¶¶ 9, 17; Lashley At one 27 Based on this information and Plaintiff’s unpredictable 28 behavior, the PPD officers at the scene concluded that Plaintiff 4 1 posed a danger to himself and his family; they therefore decided 2 to detain him for a mental health evaluation under section 5150 of 3 the Welfare and Institutions Code. 4 Decl. ¶ 16. 5 several officers and told them again that he refused to leave the 6 hotel. 7 at 1:20-3:45. 8 onto a gurney for transport to a nearby medical center. 9 Forte Decl. ¶¶ 20-21 & Ex. 1, File 1, at 3:45-4:12; Nicely Decl. Nicely Decl. ¶ 22; Lashley When Plaintiff finally left his room, he chastised Eugene Forte Decl., Ex. 1, File 1, Pl.’s Video Recording, Two officers then placed him in a control hold and Eugene United States District Court For the Northern District of California 10 ¶ 23. 11 exchange, including the officers’ use of the control hold, on a 12 cell phone camera. 13 Nicely claims that he notified Plaintiff that he would be taken 14 for a mental health evaluation prior to restraining him, Nicely 15 Decl. ¶ 23; Plaintiff disputes that the police told him why he was 16 being detained prior to placing him in the control hold, Eugene 17 Forte Decl. ¶ 21. 18 A member of Plaintiff’s family recorded some of this Eugene Forte Decl., Ex. 1, File 1. Officer On March 4, 2011, one year after the incident at the hotel, 19 Plaintiff filed this lawsuit in Alameda Superior Court. 20 at 1. 21 Defendants now move for summary judgment on all claims. Compl. The case was removed to federal court in May 2011. 22 LEGAL STANDARD 23 Summary judgment is properly granted when no genuine and 24 disputed issues of material fact remain, and when, viewing the 25 evidence most favorably to the non-moving party, the movant is 26 clearly entitled to prevail as a matter of law. 27 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 28 5 Fed. R. Civ. P. 1 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 2 1987). 3 The moving party bears the burden of showing that there is no 4 material factual dispute. 5 true the opposing party’s evidence, if supported by affidavits or 6 other evidentiary material. 7 815 F.2d at 1289. 8 in favor of the party against whom summary judgment is sought. 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, Therefore, the court must regard as Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences United States District Court For the Northern District of California 10 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 11 F.2d 1551, 1558 (9th Cir. 1991). 12 Material facts which would preclude entry of summary judgment 13 are those which, under applicable substantive law, may affect the 14 outcome of the case. The substantive law will identify which 15 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986). 17 18 DISCUSSION I. Defendants’ Motion for Summary Judgment 19 A. 20 Plaintiff alleges a tort claim of wrongful eviction against Wrongful Eviction (Plaintiff’s First Cause of Action) 21 all Defendants. 22 this claim, he must first provide evidence to support an inference 23 that he was “‘a person in peaceable possession of real property.’” 24 Spinks v. Equity Briarwood Apartments, 171 Cal. App. 4th 1004, 25 1039 (2009) (quoting Daluiso v. Boone, 71 Cal.2d 484, 486 (1969)). 26 Compl. ¶¶ 26-29. To survive summary judgment on Plaintiff has failed to present any such evidence. 27 California courts have long recognized that hotel guests do not 28 have a possessory interest in their hotel rooms. 6 Erwin v. City of 1 San Diego, 112 Cal. App. 2d 213, 217 (1952) (“The guests in the 2 hotel are not tenants and have no interest in the realty; they are 3 mere licensees and the control of the rooms, halls and lobbies 4 remains in the proprietor.”). 5 reject wrongful eviction claims asserted by hotel guests. 6 Republic W. Ins. Co. v. Stardust Vacation Club, 2003 WL 24215016, 7 at *5 (E.D. Cal.) (“It was obvious from the allegations of [the 8 plaintiff]’s initial federal complaint that she could not claim 9 personal injury resulting from wrongful eviction because [she] was United States District Court For the Northern District of California 10 For this reason, courts typically merely a hotel guest.”). 11 Plaintiff contends that this principle should not apply here 12 because Hyatt houses “permanent residents” in addition to its 13 temporary guests. 14 the past. 15 17 18 19 21 22 112 Cal. App. 2d at 217. 25 26 27 28 In short, a hotel does not grant all of its guests a possessory interest in their rooms merely by granting such an interest to certain, individual tenants. Plaintiff also argues that his wrongful eviction claim should 23 24 As the Court of Appeal recognized in Erwin, It is a matter of common knowledge that hotels, in addition to guest rooms, sometimes contain apartments which include kitchen facilities and are designed and intended for occupation for persons or families for living or sleeping purposes. Under such circumstances, the entire hotel building would not necessarily be denominated an apartment house where it is designed and used primarily for the accommodation of guests. 16 20 Courts have expressly rejected this argument in survive because Defendants repeatedly used the word “eviction” to describe their efforts to remove him from the hotel. Defendants’ imprecise use of the term “eviction,” however, does not endow Plaintiff with property rights that he would not have otherwise had. Because Plaintiff provides no other evidence to show that he 7 1 had a possessory interest in his hotel room, Defendants are 2 entitled to summary judgment on his wrongful eviction claim. 3 B. 4 Plaintiff alleges claims of false arrest and false 5 6 7 8 9 United States District Court For the Northern District of California 10 11 imprisonment against all Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Compl. ¶¶ 30-35. Because the California Supreme Court has recognized that “‘[f]alse arrest’ and ‘false imprisonment’ are not separate torts,” the Court addresses these claims together. See Asgari v. City of L.A., 15 Cal.4th 744, 752 n.3 (1997) (citations omitted) (“False arrest is but one way of committing a false imprisonment.”). Defendants PPD, Nicely, Lashley, and Martens (City 12 13 False Arrest and False Imprisonment (Plaintiff’s Second Cause of Action) Defendants) contend that they are entitled to summary judgment on Plaintiff’s false arrest claim because they were authorized to detain him under section 5150 of the Welfare and Institutions Code. Under that section, “[w]hen any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer . . . may, upon probable cause, take, or cause to be taken, the person into custody” for evaluation and treatment at a public facility. § 5150. Cal. Welf. & Inst. To establish probable cause under this provision, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion” that “the person detained is mentally disordered and is a danger to himself or herself.” Heater v. Southwood Psychiatric Ctr., 42 Cal. App. 4th 1068, 1080 (1996). Police officers acting lawfully under 28 8 1 section 5150 may not be held liable for false arrest or 2 imprisonment. Cal. Welf. & Inst. § 5278. 3 Here, City Defendants point to Plaintiff’s ninety-minute 4 standoff with police inside the hotel as their basis for invoking 5 section 5150. 6 behavior gave them probable cause to believe that he posed a 7 danger to himself and his family. 8 Plaintiff must produce evidence raising a material factual dispute 9 concerning City Defendants’ proffered justifications for detaining United States District Court For the Northern District of California 10 11 him. Specifically, they contend that Plaintiff’s erratic To survive summary judgment, He has not done so here. Plaintiff’s argument that City Defendants lacked probable 12 cause for detaining him rests principally on a series of 13 allegations that PPD officers fabricated evidence of Plaintiff’s 14 disruptive behavior. 15 may find that the police officers were trying to make it appear 16 like [Plaintiff] was a danger in order to get him off the hotel 17 property.”). 18 family members who dispute Defendants’ account in broad, 19 conclusory terms but fail to offer any specific details. 20 e.g., Declaration of Eileen Forte ¶ 9 (“There are too many 21 conflicts and misstatements of facts between the audios, the 22 declarations and what I heard and knew took place to list, and 23 that contradict what [Defendants] put in their motion.”). 24 submits a recent newspaper article about a police misconduct 25 lawsuit filed against one of City Defendants arising from an 26 unrelated incident as proof of the officer’s lack of credibility. 27 Eugene Forte Decl., Ex. 4. 28 not offer any evidence contradicting the specific factual See Opp. 14 (“It is reasonable that a jury For support, Plaintiff provides declarations from See, He also Critically, however, Plaintiff does 9 1 assertions that City Defendants make to show that they reasonably 2 believed that he posed a danger to himself and his family. 3 Rand v. CFI Indus., Inc., 42 F.3d 1139, 1146 (7th Cir. 1994) 4 (stating that a plaintiff “cannot avoid summary judgment merely by 5 asserting that [the defendants] are lying”).3 Cf. 6 In particular, Plaintiff does not dispute Defendants’ 7 assertion that he prevented his daughter from receiving needed 8 medical attention by keeping the family barricaded inside the 9 hotel room. Plaintiff’s own transcript of the PPD audio recording United States District Court For the Northern District of California 10 quotes Plaintiff stating, “My daughter may need medical attention 11 . . . but I can’t open this door, you idiot.” 12 Roycraft Decl., Ex. 4, at 19:02 (capturing quote on PPD audio 13 recording); see also Nicely Decl. ¶¶ 11-12 (“At one point, Mr. 14 Forte stated that his daughter may need medical attention for a 15 panic attack but then refused to permit paramedics to assess his 16 daughter . . . .”). 17 Plaintiff whether his “kids [were] OK,” Plaintiff responded, “No, 18 they’re not. 19 Forte Decl., Ex. 3, at 4. 20 medical attention, Plaintiff kept the family barricaded in the 21 room. Id., Ex. 3, at 3; Minutes later, when a PPD officer asked You’re upsetting them. They’re stressed.” Eugene Despite these inquiries and offers of Nicely Decl. ¶¶ 11-13. Plaintiff can also be heard on the 22 23 24 25 26 27 28 3 Plaintiff asserts in his opposition brief that City Defendants can be heard on Officer Lashley’s audio recording concocting a story to conceal their true motives in detaining him. The recording he cites does not support this assertion and, if anything, suggests that Plaintiff fabricated certain quotes that he attributes to the PPD officers. Cf. Scott v. Harris, 550 U.S. 372, 380-81 (2007) (stating that when one party’s factual allegations are “blatantly contradicted by [a video] record[ing], so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment”). 10 1 PPD recording shouting at his wife when she tried to respond to 2 one officer’s offer to provide medical support to Plaintiff’s 3 children. 4 ¶¶ 11-12 (describing how Plaintiff prevented his wife from 5 speaking to PPD officers who sought to provide medical attention 6 for Plaintiff’s daughter). 7 evidence to contradict any of these specific factual allegations. 8 9 Roycraft Decl., Ex. 4, at 21:28; see also Nicely Decl. Plaintiff does not present any While the exchange about Plaintiff’s daughter would, on its own, justify the officers’ decision to detain Plaintiff under United States District Court For the Northern District of California 10 section 5150, City Defendants provide further undisputed evidence 11 showing that they had additional cause for concern. 12 that, during the standoff, Plaintiff repeatedly told the police 13 that he was bleeding but refused to tell them exactly how he 14 became injured. 15 Ex. 4, at 35:15. 16 about other past health problems, noting that he had “had a heart 17 attack and open [sic] surgery.” 18 He then insisted several times that PPD officers call the Los 19 Banos Police Department, located more than seventy-five miles 20 away, to confirm that his life was in jeopardy. 21 Decl., Ex. 3, at 1; Roycraft Decl., Ex. 3, at 5:01, 11:20; Lashley 22 Decl. ¶ 16; Nicely Decl. ¶ 22. 23 police and hotel staff throughout the entire encounter. 24 Decl., Ex. 3, at 8:23, 21:20, 36:25; Eugene Forte Decl., Ex. 1, 25 File 1, at 3:32. 26 Plaintiff presents evidence specifically to contradict -- gave the 27 officers reason to suspect that Plaintiff was “mentally 28 disordered” and a “danger to himself” and others. They note Eugene Forte Decl., Ex. 3, at 6; Roycraft Decl., He also volunteered unsolicited information Roycraft Decl., Ex. 3, at 10:58. Eugene Forte And he remained hostile to both Roycraft Taken together, these facts -- none of which 11 Heater, 42 Cal. 1 App. 4th at 1080. 2 5150 detention in similar circumstances. 3 Moynihan, 508 F.3d 1212, 1221 (9th Cir. 2007) (finding probable 4 cause for officers to detain an individual under section 5150 5 because the individual exhibited signs of paranoia, visible anger, 6 and agitation). Courts have found probable cause for a section See, e.g., Bias v. 7 Rather than produce evidence disputing City Defendants’ 8 factual account, Plaintiff argues that he never actually posed any 9 danger to himself or others. He submits declarations from his United States District Court For the Northern District of California 10 wife and daughter stating that they were never concerned that 11 Plaintiff would harm them during the standoff. 12 Decl. ¶ 2-3; N. Forte Decl. ¶ 3. 13 show that Plaintiff was not actually a danger to his family, 14 however, they would still be insufficient to defeat summary 15 judgment here. 16 in assessing probable cause under section 5150 is not whether 17 Plaintiff actually posed a danger to others but whether the 18 officers’ belief that he posed such a danger was reasonable. 19 People v. Triplett, 144 Cal. App. 3d 283, 288 (1983) (“Each case 20 must be decided on the facts and circumstances presented to the 21 officer at the time of the detention.” (emphasis added)). 22 declarations from Plaintiff’s wife and daughter are based on their 23 contemporary assessments of Plaintiff’s behavior inside the hotel 24 room and their familiarity with his past conduct towards his 25 family. 26 the PPD officers at the time of the detention and, thus, fail to 27 address the relevant question: namely, whether the officers’ 28 assessment of Plaintiff’s behavior was reasonable. See Eileen Forte Even if these declarations could Courts have made clear that the relevant inquiry The As such, they focus solely on information unavailable to 12 1 The only specific factual dispute that Plaintiff identifies 2 regarding his detention is ultimately immaterial to whether or not 3 the detention was justified. 4 his sworn declaration that PPD officers did not tell him why he 5 was being detained before they restrained him.4 6 however, does not affect the probable cause inquiry. 7 officers’ decision to detain Plaintiff under section 5150 was 8 based on their undisputed observations of his erratic behavior at 9 the hotel. As noted above, Plaintiff states in This discrepancy, The That decision was justified, regardless of whether or United States District Court For the Northern District of California 10 not they waited until after Plaintiff was restrained to explain 11 why they were detaining him. 12 insufficient to defeat summary judgment. 13 247-48 (“[T]he mere existence of some alleged factual dispute 14 between the parties will not defeat an otherwise properly 15 supported motion for summary judgment; the requirement is that 16 there be no genuine issue of material fact.” (emphasis in 17 original)). 18 This factual dispute is thus Anderson, 477 U.S. at Without providing any other evidence to support an inference 19 that his detention was unlawful, Plaintiff cannot make out a prima 20 facie case of false imprisonment. 21 entitled to summary judgment on Plaintiff’s false imprisonment 22 claim. 23 24 Defendants are therefore Even if Plaintiff had provided sufficient evidence to support an inference that his detention was unlawful, he would have to 25 26 27 28 4 Compare Eugene Forte Decl. ¶ 21 (“City defendants did not inform me that they were taking me for mental evaluation prior to forcing me to the ground.”), with Nicely Decl. ¶ 23 (stating that “I informed Mr. Forte that he was going to be taken to a hospital for a mental health evaluation” before he resisted and had to be restrained). 13 1 provide additional evidence to hold Hotel Defendants liable for 2 false imprisonment. 3 private citizen who merely calls the police for help can only be 4 held liable for an unlawful arrest by the police if he or she gave 5 them “false information” or took an “active part” in making the 6 arrest. 7 recently, the Court of Appeal has recognized that good faith 8 communications with the police are privileged under section 47 of 9 the Civil Code and, thus, cannot form the basis for a false The California Supreme Court has held that a Hughes v. Oreb, 36 Cal.2d 854, 859 (1951). More United States District Court For the Northern District of California 10 imprisonment suit by someone unlawfully detained by the police. 11 In Hunsucker v. Sunnyvale Hilton Inn, the court specifically 12 recognized that a hotel “cannot be liable [for false imprisonment] 13 either for its communication to police or for the subsequent 14 conduct of the police in detaining plaintiffs.” 15 1498, 1505 (1994). 16 C. 23 Cal. App. 4th 17 Negligent Infliction of Emotional Distress, Assault, and Battery (Plaintiff’s Third, Fourth, and Fifth Causes of Action) 18 Plaintiff asserts claims of negligent infliction of emotional 19 distress, and assault against all Defendants. 20 Although Plaintiff’s complaint does not provide detailed factual 21 allegations to support these claims, the claims appear to be based 22 entirely on his “eviction and detention” by City Defendants. 23 ¶ 37. 24 Compl. ¶¶ 36-51. Id. These claims fail for the same reason that Plaintiff’s false 25 imprisonment claim fails: namely, City Defendants’ detention of 26 Plaintiff was lawful under section 5150, which precludes Plaintiff 27 from recovering in tort against them. 28 Code § 5278. Cal. Welf. & Inst. City Defendants are thus entitled to summary 14 1 judgment on these claims. 2 to summary judgment on these claims because Plaintiff has failed 3 to identify any tortious conduct on their part. 4 Hotel Defendants are similarly entitled Defendants are entitled to summary judgment on Plaintiff’s 5 battery claim for separate reasons. 6 evaluate battery claims asserted against law enforcement officers 7 according to the same standards used to evaluate excessive force 8 claims under 42 U.S.C. § 1983. 9 Cal. App. 4th 1077, 1102 n.6 (2004) (“Federal civil rights claims Under California law, courts Munoz v. City of Union City, 120 United States District Court For the Northern District of California 10 of excessive force are the federal counterpart to state battery 11 and wrongful death claims.”); Susag v. City of Lake Forest, 94 12 Cal. App. 4th 1401, 1412-13 (2002); Saman v. Robbins, 173 F.3d 13 1150, 1156 n.6 (9th Cir. 1999). 14 provided sufficient evidence to support his excessive force claim 15 against City Defendants, as explained below, he cannot support a 16 battery claim against them either. 17 Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2002) 18 (“Under California law, [plaintiff]’s claim for battery against 19 the County Defendants cannot be established unless [she] proves 20 that [the officers] used unreasonable force against her to make a 21 lawful arrest or detention.”). 22 Hotel Defendants fails, as well, because he has not offered any 23 evidence that any Hyatt employee physically touched him. 24 25 26 27 28 D. Thus, because Plaintiff has not See, e.g., Arpin v. Santa Plaintiff’s battery claim against Federal Civil Rights Claims against City Defendants (Plaintiff’s Sixth Cause of Action) Plaintiff asserts various federal civil rights claims against City Defendants under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. Id. ¶¶ 52-55. Specifically, he alleges that his arrest and 15 1 detention by PPD violated his Fourteenth Amendment rights to due 2 process and equal protection5 as well as his Fourth Amendment 3 protections against unreasonable searches and seizures. 4 Court addresses each of these claims separately before addressing 5 City Defendants’ qualified immunity defense. 6 7 1. Id. The Due Process Claim To survive summary judgment on his due process claim, 8 Plaintiff must produce evidence to support an inference that City 9 Defendants deprived him of some liberty or property interest United States District Court For the Northern District of California 10 without due process of law.6 11 332 (1976). 12 explained above, he was lawfully detained under section 5150 of 13 the Welfare and Institutions Code. 14 recognized that “[d]ue process does not require that a county 15 provide a hearing for a person detained for seventy two hours 16 under section 5150.” 17 at *3 (N.D. Cal.) (awarding summary judgment to defendant police 18 officer on plaintiff’s § 1983 procedural due process claim because 19 the officer had established probable cause for the detention under 20 section 5150) (citing Doe v. Gallinot, 486 F. Supp. 983, 993–94 21 (C.D. Cal. 1979) aff’d, 657 F.2d 1017 (9th Cir. 1981)). Mathews v. Eldridge, 424 U.S. 319, Plaintiff has not made this showing here because, as Numerous courts have Barrier v. County of Marin, 1997 WL 465201, City 22 23 24 25 26 27 28 5 Plaintiff asserts his due process and equal protection claims under the Fifth and Fourteenth Amendments. Because the Fifth Amendment only protects against due process and equal protection violations by the federal government, however, see Bolling v. Sharpe, 347 U.S. 497, 498 (1954), the Court treats these claims as arising exclusively under the Fourteenth Amendment. Plaintiff has not named any federal defendants in this suit. 6 The Court assumes that Plaintiff’s claim is based on procedural rather than substantive due process because, even though his complaint fails to distinguish between the two, his opposition brief states that he was denied “procedural due process.” Opp. 25. 16 1 Defendants are therefore entitled to summary judgment on 2 Plaintiff’s claims alleging due process violations. 3 4 2. Equal Protection Claim To survive summary judgment on his equal protection claim, 5 Plaintiff must present evidence to support an inference that PPD 6 was motivated by a discriminatory purpose. 7 Armstrong, 517 U.S. 456, 465 (1996). 8 a specific discriminatory motive on the part of PPD in his 9 complaint or motion papers nor does he assert that he is a member United States v. Plaintiff does not identify United States District Court For the Northern District of California 10 of a protected class under the Fourteenth Amendment. 11 opposition brief, he argues only that “City defendants 12 discriminated against him because he exposes government 13 corruption,” Opp. 25, which is insufficient to confer protected 14 status. 15 that only a limited number of groups “have so far been given the 16 protection of heightened equal protection scrutiny under our 17 cases”). 18 In his See Romer v. Evans, 517 U.S. 620, 628-29 (1996) (noting When a plaintiff’s equal protection claim is not based on 19 membership in a protected class, he or she may only establish an 20 equal protection violation by asserting a “class of one” claim. 21 Cannon v. City of Petaluma, 2012 WL 1183732, at *13 (N.D. Cal.) 22 (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 23 (2000)). 24 plaintiff must provide evidence supporting an inference that he or 25 she was “intentionally treated differently from others similarly 26 situated and that there is no rational basis for the difference in 27 treatment.” 28 of Plaintiff’s evidence mentions similarly situated individuals or To survive summary judgment on such a claim, the Village of Willowbrook, 528 U.S. at 564. 17 Here, none 1 suggests that City Defendants would treat such individuals 2 differently. 3 facts here suggest that City Defendants’ decision to detain 4 Plaintiff was based on his erratic conduct, not on a 5 discriminatory motive. 6 evidence supporting a “class of one” equal protection claim. 7 Defendants are therefore entitled to summary judgment on 8 Plaintiff’s equal protection claim. 9 3. United States District Court For the Northern District of California 10 Indeed, as previously explained, the undisputed Plaintiff has thus failed to provide City Fourth Amendment Claim To survive summary judgment on his Fourth Amendment claim, 11 Plaintiff must present evidence to support an inference that City 12 Defendants used unreasonable force in detaining him. 13 Connor, 490 U.S. 386, 395 (1989). 14 ‘reasonableness’ inquiry in an excessive force case is an 15 objective one; the question is whether the officers’ actions are 16 ‘objectively reasonable’ in light of the facts and circumstances 17 confronting them, without regard to their underlying intent or 18 motivation.” 19 the officers that the individual involved is emotionally 20 disturbed, that is a factor that must be considered in 21 determining, under Graham, the reasonableness of the force 22 employed.” 23 2001). 24 Id. at 397. Graham v. Under Graham, “the “[W]here it is or should be apparent to Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. Here, Plaintiff presents a video recording of his arrest as 25 evidence that City Defendants used excessive force in detaining 26 him. 27 video footage is shaky and does not provide a clear view of the 28 PPD officers’ efforts to restrain Plaintiff. See Eugene Forte Decl., Ex. 1, File 1, at 3:50-4:12. 18 See id. The 1 Furthermore, the relevant portion of the video contains background 2 music, which Plaintiff apparently added while editing the footage, 3 making it difficult to hear the full exchange between Plaintiff 4 and the police. 5 deficiencies, the footage -- along with the accompanying audio 6 recording that Plaintiff submits -- does not amount to sufficient 7 evidence that City Defendants used excessive force in detaining 8 Plaintiff. 9 See id. Nevertheless, even setting aside these Plaintiff’s video recording shows two police officers forcing United States District Court For the Northern District of California 10 Plaintiff’s arms behind his back and placing him face-down on the 11 ground. 12 audio recording of the same time period captures police officers 13 restraining Plaintiff on a gurney while they prepare to transport 14 him to a nearby hospital. 15 do not dispute the accuracy of Plaintiff’s recordings nor do they 16 deny that they used control holds to put him onto a gurney for 17 transport. 18 reasonable under the circumstances. 19 Eugene Forte Decl., Ex. 1, File 1, at 3:52-4:12. Id., File 3, at 0:47-2:14. An Defendants Rather, they contend that their use of force was After reviewing the video and audio recordings, the Court 20 concludes that no reasonable jury could find that City Defendants 21 used excessive force here. 22 recordings demonstrate that he resisted the PPD officers’ efforts 23 to detain him. 24 1:15 (recording Plaintiff telling PPD officers to “back up” and 25 “get your hands off me, stupid”). 26 reveal that, prior to restraining him, the officers sought to use 27 less intrusive means to escort Plaintiff off the hotel grounds. 28 At several points in the video, the officers can be seen speaking Plaintiff’s own video and audio See Eugene Forte Decl., Ex. 1, File 3, at 1:03- 19 The footage and recordings also 1 calmly to Plaintiff as he grows increasingly agitated and hostile 2 towards the officers. 3 despite his arguments to the contrary, none of Plaintiff’s video 4 footage or audio recordings supports a reasonable inference that 5 City Defendants used excessive force. 6 Id., File 1, 1:31-:50, 3:25-:50. Thus, Because Plaintiff provides no other support for his excessive 7 force claim -- not even his own sworn description of any such 8 facts or any circumstantial evidence -- City Defendants are 9 entitled to summary judgment on this claim. Cf. Gregory, 523 F.3d United States District Court For the Northern District of California 10 at 1107-08 (upholding summary judgment for defendant police 11 officers because plaintiff presented “no medical or circumstantial 12 evidence” to support his excessive force claim while defendants 13 presented evidence that they only used a control hold after 14 plaintiff resisted other efforts to detain him). 15 4. 16 Qualified Immunity Even if Plaintiff had provided evidence to support a material 17 factual dispute concerning his constitutional claims, City 18 Defendants would still be entitled to qualified immunity in this 19 case. 20 officials “from liability for civil damages insofar as their 21 conduct does not violate clearly established statutory or 22 constitutional rights of which a reasonable person would have 23 known.” 24 demonstrate that the defendant is not entitled to qualified 25 immunity, the plaintiff must show that the constitutional 26 violation he or she asserts was clearly established at the time of 27 the allegedly impermissible conduct. 28 U.S. 233, 243-44 (2009); Maraziti v. First Interstate Bank, 953 The defense of qualified immunity protects government Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 20 To Pearson v. Callahan, 555 1 F.2d 520, 523 (9th Cir. 1992). 2 clearly established, the next inquiry is whether a reasonable 3 official could have believed his conduct was lawful. 4 Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir. 1993). 5 Here, Plaintiff has failed to show that any of the If the law is determined to be Act 6 constitutional violations he alleges were “clearly established” at 7 the time of his detention. 8 Plaintiff’s detention does not establish, for instance, that the 9 use of control holds or physical restraints on an individual with The existing case law at the time of United States District Court For the Northern District of California 10 a suspected mental health disorder constitutes excessive force 11 when the individual poses a danger to himself or herself or 12 others. 13 opposite -- namely, that the use of holds and restraints in that 14 situation is generally not excessive. 15 1107-08; Gibson v. County of Washoe, 290 F.3d 1175, 1198-99 (9th 16 Cir. 2002) (holding that use of physical restraints constituted 17 reasonable force when the plaintiff appeared to be a danger to 18 himself); Duarte v. Begrin, 2007 WL 705053, at *7 (N.D. Cal.) (“In 19 light of the officers’ reasonable belief in the urgent need to get 20 plaintiff to a medical facility where she could be evaluated, 21 taking her by the arms into a police car in response to her 22 resistance was not so unreasonable as to defeat qualified 23 immunity, or amount to a constitutional violation.”).7 If anything, the existing case law suggests the See Gregory, 523 F.3d at Thus, even 24 25 26 27 28 7 See also Bowers v. Pollard, 345 Fed. App’x 191, 197 (7th Cir. 2009) (holding that state defendants were entitled to summary judgment on mentally ill plaintiff’s excessive force claim and their use of restraints was reasonable when plaintiff failed to provide evidence disputing that he was a danger to himself or others). 21 1 if Plaintiff could identify a triable issue of fact here, City 2 Defendants would still be entitled to qualified immunity. 3 E. 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 20 21 22 23 24 25 26 27 28 Federal Civil Rights Claims Against All Defendants (Plaintiff’s Seventh Cause of Action) Plaintiff asserts claims against all Defendants under 42 U.S.C. § 1983, alleging violations of his Fifth and Fourteenth Amendment rights to due process and equal protection. Compl. ¶¶ 56-57. These claims are entirely duplicative of his other, previously asserted constitutional claims, see Compl. ¶¶ 52-55, except that he asserts them against all Defendants rather than just City Defendants. The Court has already explained why these claims fail against City Defendants. These claims also fail against Hotel Defendants, however, because Plaintiff has failed to provide any evidence -or even allege -- that Hotel Defendants were acting as agents of the State when they sought assistance in removing him from the hotel. See Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 937 (1982) (“Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.”). As Plaintiff should be aware from his past litigation efforts, he must identify specific facts showing coordination between public and private actors to hold a private actor liable under § 1983. See Forte v. County of Merced, 2012 WL 94322, at *25 (E.D. Cal.) (“Plaintiff has failed to allege any facts that, if proven, would tend to show the existence of an agreement between any of the state and non-state actors to violate Plaintiffs’ First Amendment rights. Plaintiff has merely made the conclusory allegation that such an agreement exists and that is 22 1 not enough to state a claim for conspiracy under § 1983.” 2 Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 3 1989))). 4 F. 5 8 9 United States District Court For the Northern District of California 10 11 12 § 1983 alleging that they failed to prevent PPD officers from violating Plaintiff’s civil rights. 15 16 17 18 19 20 21 22 23 24 25 Compl. ¶¶ 58-64. Although Plaintiff’s complaint does not articulate a clear theory of § 1983 liability, the Court assumes that this is a claim for municipal liability on the part of the PPD under Monell v. Department of Social Services, 436 U.S. 658 (1978). Under Monell, municipalities cannot be held vicariously 13 14 Monell Claims Against All Defendants (Eighth Cause of Action) Plaintiff asserts a claim against City Defendants8 under 6 7 (citing liable under § 1983 for the actions of their employees. 691. Id. at “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. To impose liability on a government entity, a plaintiff must show that “the municipality itself causes the constitutional violation through ‘execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.’” Ulrich v. City & County of S.F., 308 F.3d 968, 984 (9th Cir. 2002) (quoting Monell, 436 U.S. at 694)). 26 27 28 8 Plaintiff asserts this claim against Hotel Defendants, as well, but once again fails to provide any evidence or allegations suggesting that their conduct constitutes state action. 23 1 Here, Plaintiff has failed to identify a specific 2 governmental policy or custom on which Monell liability might be 3 premised. 4 Francisco Police Department, which he contends shows that his 5 detention was illegal. 6 that, because his detention was ordered by Sgt. Mickleburgh, an 7 individual with supervisory authority, the decision qualifies as 8 an official policy or custom. 9 Mickelburgh’s decision constituted an official PPD policy or The only formal policy he cites is that of the San Eugene Forte Decl., Ex. 6. He also argues Even if the SFPD policy or Sgt. United States District Court For the Northern District of California 10 custom, however, neither can serve as a basis for Monell liability 11 here because, as explained above, the decision to detain Plaintiff 12 under section 5150 was lawful. 13 premised on a “constitutional violation” and Plaintiff has failed 14 to provide evidence supporting an inference that the decision to 15 detain him was constitutionally impermissible. 16 Monell liability can only be Accordingly, Defendants are entitled to summary judgment on 17 Plaintiff’s eighth cause of action. 18 II. 19 Plaintiff’s Request for Leave to Amend In his opposition brief, Plaintiff requests leave to amend 20 his complaint in an effort to cure various deficiencies that 21 Defendants highlight in their motions for summary judgment. 22 the Court explained at the hearing, if Plaintiff wishes to amend 23 his complaint, he should have timely noticed and filed a motion 24 requesting leave to do so. 25 motion at this stage in the litigation, he would face a heavy 26 burden in justifying his request. 27 “‘reluctant to allow leave to amend to a party against whom 28 summary judgment has been entered.’” As Should Plaintiff decide to file such a 24 Courts are typically See generally Nguyen v. 1 United States, 792 F.2d 1500, 1503 (9th Cir. 1986) (citing C. 2 Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2712 3 (2d ed. 1983)). 4 Under Federal Rule of Civil Procedure 16(b), a court may not 5 modify its schedule “except upon a showing of good cause and by 6 leave of the district judge.” 7 scheduling order and set a pleading deadline, the plaintiff’s 8 ability “to amend his complaint [is] governed by Rule 16(b)” not 9 the more liberal Rule 15(a). Once a court has issued a Johnson v. Mammoth Recreations, United States District Court For the Northern District of California 10 Inc., 975 F.2d 604, 608 (9th Cir. 1992). 11 amend a pleading after the deadline must show “good cause” for the 12 amendment under Rule 16(b). 13 Thus, a party seeking to To determine whether good cause exists, courts examine the 14 diligence of the party seeking the modification. 15 also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 16 2000). 17 creating a workable Rule 16 scheduling order but they must also 18 diligently attempt to adhere to that schedule throughout the 19 subsequent course of the litigation.” Jackson v. Laureate, Inc., 20 186 F.R.D. 605, 607 (E.D. Cal. 1999). A party moving for an 21 amendment to a scheduling order must therefore show that it was 22 diligent in assisting the court to create a workable schedule at 23 the outset of litigation, that the scheduling order imposes 24 deadlines that have become unworkable notwithstanding its diligent 25 efforts to comply with the schedule, and that it was diligent in 26 seeking the amendment once it became apparent that extensions were 27 necessary. Id. at 609; see “[N]ot only must parties participate from the outset in Id. at 608. 28 25 1 The Court’s scheduling order in this case set a deadline of 2 March 12, 2012 to amend the pleadings and a trial date of March 3 25, 2013. 4 1. 5 easily granted. 6 Inc., 448 Fed. App’x 720, 721 (9th Cir. 2011) (upholding denial of 7 leave to amend when party sought to amend six months prior to 8 trial date); Assadourian v. Harb, 430 Fed. App’x 79, 81 (3d Cir. 9 2011) (upholding denial of leave to amend when plaintiff sought to Docket No. 38, Minute Order & Case Management Order, at At such a late stage in the litigation, leave to amend is not See, e.g., Millenkamp v. Davisco Foods Int’l, United States District Court For the Northern District of California 10 amend six months after court’s pleading deadline); see also 11 Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir. 12 1991) (“A motion for leave to amend is not a vehicle to circumvent 13 summary judgment.”), overruled on other grounds by Cramer v. 14 Consol. Freightways, Inc., 255 F.3d 683, 692-93 (9th Cir. 2001) 15 (en banc). 16 17 CONCLUSION For the reasons set forth above, the Court GRANTS Defendants’ 18 motions for summary judgment (Docket Nos. 54 & 96). 19 Defendants’ motion for judgment on the pleadings (Docket No. 96) 20 is DENIED as moot. 21 objections to Plaintiff’s late filings are overruled as moot. 22 Plaintiff’s request for leave to amend is DENIED. 23 directed to close the case and enter judgment pursuant to this 24 order. 25 Hotel All of Defendants’ evidentiary objections and The clerk is Defendants shall recover their costs from Plaintiff. IT IS SO ORDERED. 26 27 28 Dated: 12/18/2012 CLAUDIA WILKEN United States District Judge 26

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