Juan Lucero, Jr. v. John Ettare, et al

Filing 59

Order by Magistrate Judge Kandis A. Westmore granting in part and denying in part 44 Motion for Summary Judgment and Motion for Partial Summary Judgment.(kawlc2S, COURT STAFF) (Filed on 7/21/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

JUAN LUCERO, JR,

Case No. 15-cv-02654-KAW

Plaintiff,
8
v.

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT AND MOTION
FOR PARTIAL SUMMARY
JUDGMENT

9
10

OFFICER JOHN ETTARE, et al.,
Defendants.

11
United States District Court
Northern District of California

Re: Dkt. No. 44
12
13
On May 27, 2016, the City of Berkeley and CSO Kyle Howe moved for summary
14
judgment and former Officer John Ettare moved for partial summary judgment. Juan Lucero, Jr.
15
opposes the motions. The Court held a hearing on the motions on July 7, 2016. For the reasons
16
set forth below, the motions are granted in part and denied in part.
17
I.

BACKGROUND

18
A.

Factual background

19
On September 7, 2013, Juan Lucero, Jr. ("Plaintiff") attended BrewFest at the Pyramid
20
Alehouse and Brewery in Berkeley. (Boskovich Decl., Ex. A, Lucero Dep. 21:17-22:1, Dkt. No.
21
52-1.) Plaintiff testified that he had 10 4-oz. samples of beer and was not drunk at the end of the
22
event. (Id. 28:16-25, 30:11-15, 33:5-24, 40:4-10.)
23
Plaintiff left the brewery and walked south towards his car. (Bourgalt Decl., Ex. A, Lucero
24
Dep. 45:4-8, Dkt. No. 45.) There was "[s]ome kind of fight or something going on" in the street
25
near Plaintiff's car, and a guy hit Plaintiff in the front of the neck. (Id. 48-49.) Plaintiff fell, and
26
his younger brother intervened to defend him. (Id. 53:6-8, 66:4-7.) He watched his brother and
27
the assailant fighting, and Plaintiff and his brother were arrested. (Id. 66:4-7, 73:1-2.)
28

Plaintiff testified that an officer took him down but "[n]ot right to the ground. It was like

1
2

he grabbed me and somehow we ended up by the other side of the car." (Id. 79:1-7.) He was

3

slammed against the passenger side mirror, which broke. (Id. 75:23-76:15, 86:17-87:2.) The

4

officer then handcuffed Plaintiff, who was arrested for public intoxication in violation of

5

California Penal Code section 647(f). (Id. 90:5-23; Ettare Decl., Ex. A, Dkt. No. 47.) Plaintiff

6

testified that he complained about his handcuffs hurting, and the officer did nothing. (Lucero Dep.

7

92:14-18.)
Officer Ettare then walked Plaintiff back to his patrol car. (Boskovich Decl., Ex. B. Ettare

8
9

Dep. 249:20-22.) Neither Officer Ettare nor Plaintiff's brother observed any indication that
Plaintiff suffered any injury to his ankle. (Id. 283:18-24, 307:5-12; Boskovich Decl., Ex. C, R.

11
United States District Court
Northern District of California

10

Lucero Dep. 88:14-19.)
Berkeley Fire paramedics examined Plaintiff with "a thorough head to toe performed w/o

12
13

obvious evidence of trauma." (Lucero Dep. 164:11-25; Mettler Decl. ¶ 3, Ex. A, Dkt. No. 46.)

14

The EMT report indicates that Plaintiff "had smell [sic] and admitted to drinking several beers,"

15

that he "had what appeared to be a bloody nose and cut lip," and that after thoroughly cleaning his

16

face and wounds with water, he had minor abrasions near his right wrist and elbow. (Mettler Decl.

17

¶ 3, Ex. A.) The report also indicates that Plaintiff "was adamant that BFD were the culprits in

18

'taking him down' and 'beating his ass.'"1 (Mettler Decl. ¶ 4, Ex. A.) Officer Ettare then

19

transported Plaintiff to Berkeley City Jail for booking. (Lucero Dep. 97:18-98:25; Ettare Dep.

20

98:13-15.) Plaintiff testified that he asked Officer Ettare if he could loosen the handcuffs, but his

21

request went unanswered. (Lucero Dep. 98:18-25.) Plaintiff also testified that he was in a lot of

22

pain due to the handcuffs. (Id. 99:8-10.)

23

Plaintiff arrived at the jail, and he was placed in the same cell as his brother. (Id. 101:6-

24

102:1.) He was not limping and had no ankle or other visible injury. (R. Lucero Dep. 86:5-10;

25
1

26
27
28

In his arrest report, Officer Ettare states that Plaintiff was walking in the middle of the street, a
vehicle swerved to the left of Plaintiff, and "[t]he right side rear view mirror struck the left elbow
of Lucero, J[.] and fell off its mount." Ettare Decl. ¶ 2, Ex. A. "His face and arms were splattered
with blood that looked like it came from his nose or lip." Id. In his declaration, Officer Ettare also
states that he "did not use any force against Juan Lucero, and none was required." Ettare Decl. ¶
5.
2

1

Boskovich Decl., Ex. G, Howe Dep. 123:6-12, 126:4-6.) Plaintiff testified that he remained

2

handcuffed, and he again complained about the handcuffs being too tight, to no avail. (Lucero

3

Dep. 105:1-6.) Plaintiff stated that the handcuffs were so tight that they left deep marks on his

4

wrists for several days. (Lucero Dep. 146:12-22; Bourgault Decl., Ex. C.)

5

According to Plaintiff, at 18:04, CSO Howe2 and Officer Ettare, as well another

6

unidentified officer, grabbed him while he was still handcuffed, picked him up, and carried him

7

into a safety cell, where the officers proceeded to punch him, put their knees in his back, and

8

twisted his foot until he heard his right ankle snap. (Lucero Decl. ¶ 4, Dkt. No. 52; Lucero Dep.

9

110:1-111:25, 115:13-22, 118:2-120:24, 123:1-124:25, 126:2-128:24; Howe Decl., Ex. C, Dkt.
No. 48.) Plaintiff testified that he immediately screamed in pain and told the officers that they had

11
United States District Court
Northern District of California

10

injured him; he remembers being punched once or twice more before losing consciousness.

12

(Lucero Dep. 129:1-22.)

13

Plaintiff asserts that neither Officer Ettare nor CSO Howe did anything to summon medical

14

assistance, and that Howe checked on him in the cell on several occasions and did nothing to assist

15

him. (Pl.'s Opp'n at 4.) Plaintiff testified that when he regained consciousness, he noticed that he

16

was dripping blood all over the place, and when he attempted to stand, he discovered that he could

17

not bear weight on his right ankle. (Lucero Dep. 131:3-11, 138:1-13, 140:13-15, 144:3-145:10.)

18

At 20:05, an officer checked on Plaintiff and discovered that he was injured, complaining

19

of an ankle injury. (Id. 143:18-24; Howe Decl., Ex. C.) Plaintiff was removed from the cell at

20

21:00 and taken to Alta Bates Hospital. (Lucero Dep. 147:1-150:23; Howe Decl., Ex. C.) At the

21

hospital, x-rays indicated that Plaintiff had a fractured ankle. (Lucero Dep. 157:22-158:4.) He

22

also had abrasions. (Bourgault Decl., Ex. B.) That was the only visit Plaintiff had for his ankle

23

injury even though he testified that follow-up care was recommended. (Supp. Bourgault Decl.,

24

Ex. I, Lucero Dep. 180:21-181:12, Dkt. No. 54.)

25

///

26
27
28

2

In his declaration, CSO Howe states that he "did not use any force against Juan Lucero, and none
was required." Howe Decl. ¶ 11. It was not until June 2, 2016 that Plaintiff was able to identify
CSO Howe as one of his alleged attackers. Lucero Decl. ¶ 4, Dkt. No. 52.
3

1

B.

Procedural background

2

On June 12, 2015, Plaintiff filed his complaint against the City of Berkeley, Officer John

3

Ettare, and CSO Kyle Howe ("Defendants"). (Compl., Dkt. No. 1.) In the operative complaint,

4

Plaintiff asserts the following causes of action: (1) a § 1983 claim for violation of his Fourth,

5

Fifth, Eighth, Ninth, and Fourteenth Amendment rights, (2) a claim under § 1983 and Monell v.

6

Dept. of Social Services, 436 U.S. 658 (1978) based on an alleged pattern of ongoing

7

constitutional violations and practices by officers consisting of the use of unnecessary and

8

excessive force against non-white persons, false arrests of non-white persons, and unequal law

9

enforcement against non-white persons, and (3) a claim under § 1981 for race discrimination.3

10

(1st Am. Compl. ("FAC") ¶¶ 22-24, ¶¶ 25-27, ¶¶ 28-32.)
On May 27, 2016, the City and CSO Howe moved for summary judgment, and Officer

United States District Court
Northern District of California

11
12

Ettare moved for partial summary judgment. (Defs.' Mot., Dkt. No. 44.) Plaintiff filed his

13

opposition to the motions on June 10, 2016. (Pl.'s Opp'n, Dkt. No. 52.) Defendants filed their

14

reply on June 17, 2016. (Defs.' Reply, Dkt. No. 53.) The Court held a hearing on the motions on

15

July 7, 2016.
II.

16

LEGAL STANDARD

"A party may move for summary judgment, identifying each claim or defense--or the part

17
18

of each claim or defense--on which summary judgment is sought." Fed. R. Civ. P. 56(a).

19

Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to

20

material facts and the moving party is entitled to judgment as a matter of law. Id.; see Celotex

21

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the

22

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a

23
3

24
25
26
27
28

In his opposition, Plaintiff concedes that he has no claim against CSO Howe in connection with
Plaintiff's arrest or detention, no claim regarding the decision to house Plaintiff in a safety cell, no
constitutional claim for the loss of his property (though he contends that property loss may be a
component of his damages for his Fourth Amendment claims), and no claim for excessive force
under the Fifth Amendment. Pl.'s Opp'n at 16. He also withdraws his claims under Monell and
§ 1981 as well as his claims for "constitutional violation of equal protection" and for
"constitutional violation of his right to privacy." Id. Summary judgment is, therefore, granted as
to these claims. Officer Ettare concedes that factual disputes preclude summary judgment on
Plaintiff's claim for unlawful detention and arrest, and so, these claims, as against him, are
unaffected by this order. Defs.' Mot. at 1.
4

1

material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

2

the nonmoving party. Id.

3

A party seeking summary judgment bears the initial burden of informing the court of the

4

basis for its motion and of identifying those portions of the pleadings and discovery responses that

5

demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the

6

moving party will have the burden of proof at trial, it must affirmatively demonstrate that no

7

reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v.

8

City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

9

On an issue where the nonmoving party will bear the burden of proof at trial, the moving
party may discharge its burden of production by either (1) "produc[ing] evidence negating an

11
United States District Court
Northern District of California

10

essential element of the nonmoving party's case" or (2) after suitable discovery, "show[ing] that

12

the nonmoving party does not have enough evidence of an essential element of its claim or defense

13

to discharge its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd., v.

14

Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000); see also Celotex, 477 U.S. at 324-25.

15

Once the moving party meets its initial burden, the opposing party must then set forth

16

specific facts showing that there is some genuine issue for trial in order to defeat the motion. See

17

Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. "A party opposing summary judgment may not

18

simply question the credibility of the movant to foreclose summary judgment." Far Out Prods.,

19

Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001). "Instead, the non-moving party must go beyond

20

the pleadings and by its own evidence set forth specific facts showing that there is a genuine issue

21

for trial." Id. (citations and quotations omitted). The non-moving party must produce "specific

22

evidence, through affidavits or admissible discovery material, to show that the dispute exists."

23

Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or speculative

24

testimony in affidavits and moving papers is insufficient to raise a genuine issue of material fact to

25

defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d

26

730, 738 (9th Cir. 1979).

27
28

In deciding a motion for summary judgment, a court must view the evidence in the light
most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson,
5

1

477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

2

III.

DISCUSSION

3

"Section 1983 provides a cause of action against any person who, under the color of state

4

law, abridges rights unambiguously created by the Constitution or laws of the United States. . . .

5

[It] is not itself a source of substantive rights, but merely provides a method for vindicating

6

federal rights elsewhere conferred." Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012)

7

(internal quotations and citations omitted). Thus, to state a claim under § 1983, a plaintiff must

8

allege two elements: (1) that a right secured by the Constitution or laws of the United States was

9

violated, and (2) that the alleged violation was committed by a person acting under the color of

10

state law. West v. Atkins, 487 U.S. 42, 48 (1988).

United States District Court
Northern District of California

11

A.

Plaintiff's excessive force claim

12

Plaintiff alleges that that Defendants violated his right to be free from excessive force

13

when officers ignored his complaints that the handcuffs on his wrists were too tight and caused

14

him pain, 4 when they grabbed him and slammed against his car, and when they beat him in the

15

safety cell, where officers "twisted his ankle until it made a loud popping sound." (FAC ¶¶ 7, 8,

16

11.)
The Fourth Amendment requires that officers use only such force as is "objectively

17
18
19
20

reasonable" under the totality of the circumstances.5 See Graham v. Connor, 490 U.S. 386, 39697 (1989). This "'requires a careful balancing of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing governmental interests at
stake.'" Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001) (quoting

21
Graham, 490 U.S. at 388). In assessing the nature and quality of the intrusion, courts assess the
22
type and amount of force inflicted. Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003)
23
24
25
26
27

4

Consistent with these allegations, Plaintiff argues in his opposition that Defendants used
excessive force against him when Officer Ettare ignored Plaintiff's repeated requests to loosen his
handcuffs—an issue unaddressed by Defendants in their opening brief. Pl.'s Opp'n at 8. As
Defendants have failed to address this issue in their opening brief, they have waived it. See Eberle
v. Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (declining to consider argument first raised in a
reply brief).
5

28

Plaintiff suggests that his claim arises under both the Fourth and Fourteenth Amendments. See
Pl.'s Opp'n at 16. The Court will apply the Fourth Amendment framework in this case.
6

1

(citation omitted). When examining the governmental interests at stake, courts consider "the

2

severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the

3

officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade

4

arrest by flight." Graham, 490 U.S. at 396. Reasonableness is viewed from the perspective of an

5

officer on the scene, and without the benefit of 20/20 hindsight, as "police officers are often forced

6
7

to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation." Id. at 396-97.
Defendants argue that they are entitled to summary judgment on Plaintiff's excessive force

8
9
10

claim because Plaintiff's allegations of excessive force are blatantly contradicted by the record.
(Defs.' Mot. at 4-6.) First, Defendants highlight that Plaintiff's mug shot lacks any signs of injury
to his face and any abrasions, cuts, contusions, or blood.6 (Id. at 5, 6.) Second, Defendants rely

11
United States District Court
Northern District of California

on the Patient Care Report from the EMT who treated Plaintiff at the scene of his arrest, before
12
Plaintiff was transported to jail. (Id. at 6.) Defendants note that the report indicates that Plaintiff
13
14
15
16

had a bloody nose, a cut lip, and minor abrasions near his right wrist and elbow, contradicting
Plaintiff's testimony that he had no visible injuries before he was taken to jail. (Id.) Third,
Defendants point to photographs taken within a day or two of Plaintiff's arrest,7 which appear
consistent with the Patient Care Report, not Plaintiff's account of the events—including his

17

testimony that the black eye he suffered showed up a day or two after his arrest. (Id. at 6, 7.)

18

Fourth, Defendants point to statements by Plaintiff's brother, who testified at his deposition that

19

Plaintiff was standing up when officers escorted him to the safety cell. (Id. at 7.) Fifth,

20

Defendants contend that Plaintiff's medical records from the day of the incident document injuries

21

that Plaintiff suffered before being taken to jail, with the exception of the ankle injury. (Id.)

22
23

Here, Plaintiff's version of the facts, while appearing to strain credulity as Defendants
persuasively contend, still raises genuine disputes about the nature and duration of the force

24
25
26

6

In his declaration, CSO Howe states that Plaintiff "was placed in a safety cell before being
fingerprinted or photographed." Howe Decl. ¶ 7.
7

27
28

Defendants complain about having to subpoena these photos from Plaintiff's mother, and
Plaintiff complains about not having received notice of such a subpoena. The time for raising
such disputes has passed.
7

1

applied. The medical records from the day of the incident document Plaintiff's injuries before he

2

was taken to jail, but they are not dispositive as to whether Plaintiff suffered those injuries at the

3

hands of Officer Ettare or due to the vehicle that allegedly swerved to avoid him as he was

4

walking in the middle of the street. Plaintiff's brother's testimony that Plaintiff was upright and

5

walking as he was being escorted to the safety cell does not negate Plaintiff's testimony that he

6
7
8
9
10

was beaten once he was in the safety cell, though it may make it more difficult for a jury to believe
Plaintiff's version of the events. The photographs of Plaintiff's injuries and his mug shot also fail
to dispose of a genuine dispute of material fact as to whether Plaintiff was beaten, especially in
light of the broken ankle he suffered. Thus, a reasonable juror could conclude that while injuries
to Plaintiff's face and wrist are nonexistent on the photographs taken after the alleged beating, he
suffered injuries to other parts of his body, such as his ankle, that were not present prior to

11
United States District Court
Northern District of California

Plaintiff being placed in a safety cell.
12
In their reply, Defendants argue that Plaintiff cannot establish that his ankle was not
13
14
15
16
17
18

broken when he entered the jail. (Defs.' Reply at 2.) Whether Plaintiff broke his ankle prior to
being taken to jail because he was stumbling around drunk or whether Plaintiff's ankle was broken
when he was placed in the safety cell and allegedly beaten by officers is an issue for the jury to
sort out based on whose account it finds more credible.
Though a reasonable jury could find Plaintiff's version of the events unbelievable:

21

[I]f an excessive force claim turns on which of two conflicting stories best captures
what happened on the street, Graham will not permit summary judgment in favor
of the defendant official. And that is as it should be. When a plaintiff proffers
evidence that the official subdued her with a chokehold even though she complied
at all times with his orders, while the official proffers evidence that he used only
stern words, a trial must be had.

22

Saucier v. Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J. concurring). Here, though some of

23

Plaintiff's testimony may be discredited on the record before the Court, it does not mean that

24

Defendants' version of the incident is uncontested or incontrovertible. Cf. Scott v. Harris, 550

25

U.S. 372 (2007) (police officer entitled to summary judgment based on qualified immunity in light

26

of video evidence capturing plaintiff's reckless driving in attempting to evade capture which

19
20

27
28

utterly discredited plaintiff's claim that there was little or no actual threat to innocent bystanders);
see also Hart v. Celaya, 548 F. Supp. 2d 789, 804 (N.D. Cal. 2008) (granting summary judgment
8

1

on excessive force claims where plaintiff's allegation that he was forced to kneel on hot asphalt

2

was contradicted by photographic evidence indicating that the surface was light colored cement,

3

not asphalt).
To the extent CSO Howe seeks summary judgment on Plaintiff's excessive force claim

4
5

because Plaintiff was never able to identify him as one of his alleged attackers, Plaintiff has

6

submitted a declaration stating that on June 2, 2016, he recognized CSO Howe as one of the

7
8

individuals who participated in the alleged beating. (Lucero Decl. ¶ 4.)8 It is for the jury to decide
whether they believe Plaintiff on this point.
Accordingly, summary judgment on Plaintiff's excessive force claim is denied.

9

B.

10

Plaintiff alleges that officers violated his 14th amendment right to adequate medical care

United States District Court
Northern District of California

11
12

when they delayed treatment for his broken ankle. (FAC ¶¶ 12, 13.)
"Claims of failure to provide care for serious medical needs, when brought by a detainee

13
14
15
16
17
18
19
20
21
22
23

. . . who has been neither charged nor convicted of a crime, are analyzed under the substantive due
process clause of the Fourteenth Amendment." Lolli v. Cty. of Orange, 351 F.3d 410, 418-19 (9th
Cir. 2003); see also Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1244 (9th Cir. 2010).9 To
defeat a motion for summary judgment by individual defendants, a plaintiff must show a genuine
issue of material fact as to both prongs of the deliberate indifference test: (1) whether the plaintiff
was confined under conditions posing a "substantial risk of serious harm" and (2) whether the
officers were deliberately indifferent to that risk. Clouthier, 591 F.3d at 1244 (citing Lolli, 351
F.3d at 420).
8

In their reply, Defendants state that no such declaration was provided. Defs.' Reply at 8. The
declaration appears on the docket at number 52-6.
9

24
25
26
27
28

Plaintiff's claim for delayed medical treatment

In his opposition, Plaintiff writes "[t]he issue is, with respect to a pretrial detainee, what legal
standard is required: the objective standard of the Fourteenth Amendment, or the subjective
standard of the Eighth Amendment." Pl.'s Opp'n at 13. Plaintiff further contends that "the Ninth
Circuit, in Clouthier, supra, at 1241-42, brushed aside the constitutional distinctions between
pretrial prisoners and imported the Eighth Amendment subjective deliberate indifference standard
for failure to protect claims brought by the convicted." Id. at 14. Plaintiff's criticism
notwithstanding, the Court will adhere to binding Ninth Circuit authority in this case. In any
event, even if Plaintiff were correct that he need only show "further significant injury or the
unnecessary and wanton infliction of pain," Plaintiff has failed to rebut the facts showing that this
standard is not met in this case.
9

With regard to the first prong, the existence of an injury that a reasonable physician would

1
2

find important and worthy of comment or treatment, the presence of a medical condition that

3

significantly affects an individual's daily activities, and/or the existence of chronic or substantial

4

pain are indications of a serious medical need. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.

5

2000) (citation omitted).
The second prong of the deliberate indifference test requires a showing of: "(a) a

6
7

purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm

8

caused by the indifference." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citation

9

omitted). "Such indifference may be manifested in two ways. It may appear when prison officials
deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in

11
United States District Court
Northern District of California

10

which prison physicians provide medical care." Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir.

12

1988) (citation omitted). A complete denial of medical care is not required to show deliberate

13

indifference. Lopez, 203 F.3d at 1132. Allegations that treatment has been requested and denied

14

because of a difference of opinion with medical staff, absent more, are insufficient to state a claim

15

for deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). The requisite

16

state of mind is one of subjective recklessness, which entails more than ordinary lack of due care.

17

Wilhelm, 680 F.3d at 1122.
Here, Plaintiff contends that CSO Howe was aware of his serious medical need10 and that

18
19

the response to that need was inadequate. (Pl.'s Opp'n at 12, 13.) According to Plaintiff, his ankle

20

was broken at 6:04 p.m., but medical care was delayed until 9:00 p.m., when he was removed

21

from the cell. (Id.) He asserts that Defendants "must have heard that ankle snap and Mr. Lucero

22

scream, and they must have known that he was unconscious as they removed his handcuffs and

23

shoes." (Id. at 13.)
To the extent Plaintiff contends that the officers must have heard his ankle snap, such

24
25

speculation is insufficient to defeat Defendants' motion. Moreover, Plaintiff's own deposition

26
27
28

10

Plaintiff offers no citation to the record to support the assertion that CSO Howe knew that
Plaintiff's ankle was broken. See Pl.'s Opp'n at 12, 13.
10

1

testimony undermines the remaining assertions contained in his opposition. Plaintiff testified that

2

an African American officer came to his cell, asked him if he needed medical attention, and "took

3

care of me right away, like got another officer to take me to the hospital." 11 (Lucero Dep. 143:10-

4

24, 147:10-16.) The Berkeley Police Department's Jail Safety Cell Log is consistent with this

5

testimony. (Howe Decl. Ex. C.) The log shows that at 20:05, Plaintiff was complaining of an

6

ankle injury; at 20:15, Sgt. Wilson was designated to transport Plaintiff to Alta Bates Hospital, and

7

at 21:00, Plaintiff was removed from his cell. (Id.) This visit to Alta Bates Hospital was the only

8

time Plaintiff received treatment for his ankle injury even though he testified that follow-up care

9

was recommended. (Supp. Bourgault Decl. ¶ 2, Ex. I, Lucero Dep. 180:21-181:12.)
When this evidence is viewed in the light most favorable to Plaintiff, it does not show that

10

United States District Court
Northern District of California

11

Defendants failed to respond to Plaintiff's medical needs or that Plaintiff's injury was aggravated

12

by the alleged delay. See Cramer v. Target Corp., No. 1:08-cv-01693-SKO, 2011 WL 5873401,

13

at *17 (E.D. Cal. Nov. 22, 2011) (noting that delays of longer than two hours are frequently

14

experienced in emergency rooms across the country and that such delays do not rise to the level of

15

a constitutional violation). Plaintiff has adduced no evidence to the contrary. Cf. Schafer v.

16

Curry, No. C 08-1881 RMW (PR), 2009 WL 1562957, at * 9 (N.D. Cal. June 3, 2009) (summary

17

judgment denied where plaintiff presented evidence that he was denied treatment and medication

18

for a broken foot for 7 days).
Accordingly, summary judgment is granted as to Plaintiff's claim for delay of medical

19
20

treatment.
IV.

21

CONCLUSION

22

For the reasons set forth above, summary judgment is denied as to Plaintiff's excessive

23

force claim. That claim, as against CSO Howe and Officer Ettare, will proceed to trial, as will

24

Plaintiff's claim for unlawful detention and arrest against Officer Ettare. Summary judgment is

25

granted as to all other claims, i.e., Plaintiff's claim against CSO Howe in connection with

26
11

27
28

Indeed, in his first amended complaint, Plaintiff alleges: "[a]n officer came to the cell and saw
that [P]laintiff was in obvious need of medical attention, and he called for assistance. Plaintiff was
quickly processed and transported to the hospital." FAC ¶ 13.
11

1

Plaintiff's arrest or detention, Plaintiff's claim regarding the decision to house Plaintiff in a safety

2

cell, Plaintiff's claim for the loss of his property, Plaintiff's Monell claim, Plaintiff's § 1981 claim,

3

and Plaintiff's claims for "constitutional violation of equal protection" and for "constitutional

4

violation of his right to privacy."
IT IS SO ORDERED.

5
6

Dated:

07/21/16

__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12