Moujaes v. San Francisco City and County et al

Filing 43

Order by Magistrate Judge Donna M. Ryu granting in part and denying in part 28 Motion for Summary Judgment.(dmrlc3, COURT STAFF) (Filed on 9/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NYLA MOUJAES,

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Case No. 15-cv-03129-DMR

Plaintiff,
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v.
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SAN FRANCISCO CITY AND COUNTY,
et al.,

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Re: Dkt. No. 28

Defendants.

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United States District Court
Northern District of California

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT

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Plaintiff Nyla Moujaes filed a civil rights action under 42 U.S.C. § 1983 claiming that she

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suffered constitutional violations committed by the City and County of San Francisco (“CCSF”),

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the San Francisco Police Department,1 Officer David Wasserman, Sergeant Gary Buckner,

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Sergeant Flint Paul, Officer Barry,2 and Officer Brent Dittmer (collectively the “Defendant

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Officers”) in connection with Plaintiff’s traffic stop and arrest on July 14, 2013. Defendants

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CCSF, Wasserman, Buckner, Paul and Dittmer (for purposes of this motion, collectively the

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“Defendants”) now move for summary judgment. Defs.’ Mot. for Summary Judgment (“MSJ”)

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[Docket No. 28]. The court held a hearing on September 1, 2016. [Docket No. 40.] For the

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following reasons, Defendants’ motion is granted in part and denied in part.

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Plaintiff named the San Francisco Police Department as a separate defendant from the City and
County of San Francisco. Neither party addressed this discrepancy in the motion papers. The
court notes that for purposes of § 1983, “[t]he term ‘persons’ encompasses state and local officials
sued in their individual capacities, private individuals and entities which acted under color of state
law, and local governmental entities. . . . the term ‘persons’ does not encompass municipal
departments.” Vance v. Cty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996). Because
the Police Department is a subdivision of a local government entity, it is not a proper defendant
for purposes of Plaintiff’s § 1983 claims and is accordingly dismissed.
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Plaintiff dismissed Officer Barry without prejudice at the September 1, 2016 hearing. Sept. 1,
2016 Minute Order [Docket No. 40].

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I.

BACKGROUND
A.

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Factual Background

The facts recounted in this section are undisputed for purposes of this motion, unless
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otherwise noted.
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Plaintiff Nyla Moujaes is a self-described masculine-presenting lesbian lawyer of Middle
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Eastern/Southwest Asian Descent.3 Around 11:00 p.m. on the evening of July 14, 2013, Plaintiff

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was driving in a car with her Afro-Cuban girlfriend, Odalys Cuesta, when they were stopped by
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Wasserman and his training Officer Buckner.4 Plaintiff and Cuesta had just departed from a
taqueria in San Francisco’s Mission District where they had eaten dinner.

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Defendants contend that Plaintiff made an illegal left turn from northbound Mission Street
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United States District Court
Northern District of California

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onto westbound 16th Street where there was a sign prohibiting left turns. Plaintiff does not know
whether there was a sign at the location prohibiting left turns or whether the turn off of Mission
Street was actually legal.

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Plaintiff observed a police car that pulled off to the side with a red light on top. Plaintiff
pulled her car over on Valencia Street and came to a complete stop within a block of seeing the
red light. She waited for about ten to fifteen seconds. After seeing no movement or signal from
the police vehicle, Plaintiff reentered the traffic lane and continued driving toward the 101
Freeway. Within one to two blocks, the police vehicle got closer and the red light on top of the

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vehicle flashed. Plaintiff did not hear a siren or a horn. Plaintiff pulled over and came to a

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complete stop on the left side of the road in front of an Arco gas station near 14th and Mission.

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Wasserman drew his gun and pointed it at Plaintiff as he approached the driver’s side of

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the car and told Plaintiff to show her hands. Plaintiff rolled down her window and she put her

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hands up, with her left arm outside of the car. Wasserman told Plaintiff to turn the car off.5

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Plaintiff further states that she believes that her “appearance is that of a Latino masculine
presenting person that could be taken as male.” Moujaes Decl. at ¶ 22. The citation issued to
Plaintiff indicated that Plaintiff was “Hispanic.” Id.

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Buckner was an Officer at the time of the incident. He was subsequently promoted to Sergeant.

Plaintiff recalls Wasserman telling her to turn off the car once. Moujaes Dep. 139:14-140:13.
Defendants maintain that Wasserman told Plaintiff to turn off the car more than once. MSJ at 4
n.3, citing Ex. A (audiotape) at 1:26.
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Plaintiff asked why she was being pulled over. Wasserman did not answer. Wasserman

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put his gun back in his holster, and then reached into the window and grabbed Plaintiff’s shirt and

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told her to get out of the car. Plaintiff put her hand back into the car, reached for her seatbelt to

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undo it, and opened her door. Plaintiff testified that she brought her left hand back inside the car

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to open the door. Moujaes Dep. 65:3-17. In his incident report, Wasserman stated that Plaintiff

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released her seatbelt with her right hand and “then moved her left hand towards the center console

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of the car.” Incident Report (CCSF-Moujaes_000004) [Docket No. 29-9 at ECF 5].

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Wasserman grabbed Plaintiff again. He applied a bar arm hold by taking Plaintiff’s left
arm and twisting it behind her back. He pulled her directly onto the pavement on her stomach, on
the street outside of her car. Plaintiff did not have a chance to stand up. As soon as she was on
the ground, an officer got on top of Plaintiff and put his knee on her back and handcuffed her.
Another officer, who was also behind Plaintiff, held her and also put a knee on her back.
According to Plaintiff, the officer or officers had his or their knees on her back for several minutes
before getting off her. Plaintiff testified that when she was being handcuffed she asked the officer
to loosen the handcuffs because she was in pain.
Plaintiff lay on the street on her stomach for ten to fifteen minutes. While she was lying
face down in the street, Plaintiff told the officers that she was in a lot of pain, that she thought that
her shoulder was dislocated, that it really hurt, and that she needed a doctor. The officers did not

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respond to Plaintiff. Plaintiff heard the officers speaking among themselves while she was lying
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handcuffed in the street. Plaintiff testified that she heard an officer say that “it’s not her, we got

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the wrong person.” She also heard a couple of other officers talking about what they might charge
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her with.
After lying face down in the street for ten to fifteen minutes, some officers helped Plaintiff
sit up. She waited for another fifteen to twenty minutes for the ambulance to arrive. When the
ambulance arrived, the EMTs put Plaintiff on a stretcher. Plaintiff’s handcuffs were released so
that she could be handcuffed to the stretcher. After she was in the ambulance, she was handcuffed
with her hands in front instead of behind her.
Plaintiff was taken to the emergency room at San Francisco General Hospital and treated

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for a severe dislocation of her left shoulder. After two hours of trying to reduce the dislocation,

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the doctor was able to put Plaintiff’s shoulder back into its socket.
Plaintiff was not asked to submit to drug or alcohol testing at the scene of the arrest, or

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later in the ambulance. At the hospital, Buckner asked Plaintiff to submit to a blood test without

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explaining the purpose of the test. Plaintiff refused.
The officers cited Plaintiff for driving under the influence of alcohol,6 resisting, delaying,

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or obstructing peace officer duties, and traffic violations of California Vehicle Code sections

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22101(d), 24603(b), and 23152(a). Incident Report [Docket No. 29-9 at ECF 2]. On September 3,

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2013, Plaintiff appeared at the arraignment hearing for the citation. No charges were filed against

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her.
B.

United States District Court
Northern District of California

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Plaintiff filed her complaint in state court on June 8, 2015. Compl. [Docket No. 1-1]. On

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July 7, 2015, CCSF removed the case to federal court. Notice of Removal [Docket No. 1].
Plaintiff alleges three claims for relief: 1) a section 1983 claim against the individual defendants
for wrongful arrest, seizure of her person, and assault and battery; 2) a section 1983 claim against
CCSF based on respondeat superior liability for the actions of Wasserman and Buckner in the
alleged unlawful detention, arrest, and assault and battery; and 3) a section 1983 claim for
municipal liability based on CCSF’s customs and/or policies.
II.

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LEGAL STANDARDS
A court shall grant summary judgment “if . . . there is no genuine dispute as to any material

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Procedural History

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden
of establishing the absence of a genuine issue of material fact lies with the moving party, see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the court must view the evidence in the
light most favorable to the non-movant. See Scott v. Harris, 550 U.S. 372, 378 (2007) (citation

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In her opposition brief, Plaintiff states that earlier in the evening she had one beer at a music
venue called Brick and Mortar, and that she left at 8:30 p.m. to go to the taqueria. Plaintiff
testified that she did not drink any alcoholic beverages at the taqueria. The traffic stop occurred
around 11:00 p.m. The parties do not address the issue of Plaintiff’s level of alcohol consumption
for purposes of the present motion.
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omitted). A genuine factual issue exists if, taking into account the burdens of production and

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proof that would be required at trial, sufficient evidence favors the non-movant such that a

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reasonable jury could return a verdict in that party’s favor. Anderson v. Libby Lobby, Inc., 477

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U.S. 242, 248. The court may not weigh the evidence, assess the credibility of witnesses, or

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resolve issues of fact. Id. at 249.
To defeat summary judgment once the moving party has met its burden, the nonmoving

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party may not simply rely on the pleadings, but must produce significant probative evidence, by

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affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that

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a genuine issue of material fact exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

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F.2d 626, 630 (9th Cir. 1987) (citations omitted). In other words, there must exist more than “a

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scintilla of evidence” to support the non-moving party’s claims, Anderson, 477 U.S. at 252;

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conclusory assertions will not suffice. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738

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(9th Cir. 1979). Similarly, “[w]hen opposing parties tell two different stories, one of which is

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blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

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adopt that version of the facts” when ruling on the motion. Scott, 550 U.S. at 380.

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III.

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ANALYSIS
A. Section 1983 Claims Against Defendant Officers

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1. Unlawful Seizure

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Plaintiff brings a section 1983 claim for unlawful seizure against the Defendant Officers,

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presumably for the traffic stop they conducted. Defendants argue that probable cause existed for

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the traffic stop because Wasserman and Buckner observed Plaintiff make a left turn off of Mission

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Street in front of sign prohibiting left turns. In the alternative, they argue that they are entitled to

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qualified immunity.

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“[T]he Fourth Amendment requires only reasonable suspicion in the context of

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investigative traffic stops.” United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000); see

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also Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015) (“a routine traffic stop is ‘more

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analogous to a so-called ‘Terry stop’ . . . than to a formal arrest.’” (quoting Knowles v. Iowa, 525

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U.S. 113, 117 (1998))). “Like a Terry stop, the tolerable duration of police inquiries in the traffic5

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stop context is determined by the seizure’s ‘mission’—to address the traffic violation that

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warranted the stop, and attend to related safety concerns.” Rodriguez, 135 S. Ct. at 1614 (citations

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omitted). Therefore, “[b]ecause addressing the infraction is the purpose of the stop, it may ‘last no

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longer than is necessary to effectuate th[at] purpose.” Id. (second alteration in original) (quoting

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Florida v. Royer, 460 U.S. 491, 500 (1983)). “[I]n a traffic-stop setting, the first Terry condition—

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a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its

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occupants pending inquiry into a vehicular violation.” Arizona v. Johnson, 555 U.S. 323, 327

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(2009).

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Defendants contend that Plaintiff made an illegal left turn at the intersection of 16th and
Mission. Plaintiff does not dispute this or otherwise deny it. See Plaintiff’s Statement of Disputed

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Material Facts (Opp’n at 6-9). Plaintiff testified that she does not know whether there was a sign

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at the location prohibiting left turns, or whether the turn was actually legal. In order to survive a

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motion for summary judgment, the responding party must present competent evidence that creates

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a genuine issue of material fact. Anderson, 477 U.S. at 248–52. The party against whom a

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summary judgment motion is brought must present evidence that, if presented at trial, would

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support a judgment in its favor, and testimony that a party does not recall is insufficient to present

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competent evidence to create a genuine issue of material fact to survive a motion for summary

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judgment. Id. at 250–51; Fed. Election Comm'n. v. Toledano, 317 F.3d 939, 950 (9th Cir. 2002),

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as amended on denial of reh'g (Jan. 30, 2003) (testimony such as “I don’t recall,” “I forgot,” “I’m

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not entirely sure,” and “I have no independent recollection” was insufficient to create a genuine

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issue of material fact to survive a motion for summary judgment).

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Plaintiff was also cited for having a broken taillight. Buckner testified that he thought Plaintiff’s

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car had “a taillight out or something.” Plaintiff does not know whether she had a broken rear

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taillight at the time of the incident, but may have gotten a brake light fixed at some point after the

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incident. Thus, Plaintiff has failed to establish a genuine issue of material fact as to whether she

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was driving a car with a broken taillight.

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Plaintiff argues that the traffic stop was pretextual because the officers actually believed
that the car was the subject of a carjacking and that the occupants were gang members. Opp’n at 7
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(citing Buckner Dep. 34:19-25 (“We were getting information it was possibly involved in

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carjacking. . . . For all we knew, they were gang members with guns. We didn’t know.”)

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However, the Ninth Circuit has held that if the facts provide reasonable suspicion to justify a

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traffic stop, the stop is lawful even if the officer made the stop only because he wished to

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investigate a more serious offense. United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir.

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2016) (citing Whren v. United States, 517 U.S. 806, 812–13 (1996)). Therefore, even if the traffic

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stop was “pretextual” because Defendants wished to investigate a carjacking, the stop was lawful

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as long as Defendants had reasonable suspicion that Plaintiff had made an illegal left turn and/or

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was driving with a broken taillight.
As there are no genuine disputes of material fact regarding the existence of reasonable

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suspicion to support the traffic stop for both an illegal left turn and a broken taillight, the court

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grants summary judgment on Plaintiff’s unlawful seizure claim.

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2. Wrongful Arrest
The parties agree that Plaintiff was arrested. “Under the Fourth Amendment, a warrantless

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arrest requires probable cause.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)

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(citing Michigan v. Summers, 452 U.S. 692, 700 (1981)). “Probable cause exists when officers

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have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable

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caution to believe that an offense has been or is being committed by the person being arrested.”

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Id. (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “Alternatively, this court has defined probable

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cause as follows: when ‘under the totality of circumstances known to the arresting officers, a

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prudent person would have concluded that there was a fair probability that [the defendant] had

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committed a crime.’” Id. (citing United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986))

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(alteration in original). While conclusive evidence of guilt is not necessary under this standard to

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establish probable cause, “[m]ere suspicion, common rumor, or even strong reason to suspect are

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not enough.” McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984) (citing Henry v. United

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States, 361 U.S. 98, 101 (1959)). “Probable cause is lacking if the circumstances relied on are

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susceptible to a variety of credible interpretations not necessarily compatible with nefarious

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activities.” Gasho v. United States, 39 F.3d 1420, 1432 (9th Cir. 1994) (citations omitted).
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“Where the facts or circumstances surrounding an individual’s arrest are disputed, the existence of

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probable cause is a question for the jury.” Harper v. City of Los Angeles, 533 F.3d 1010, 1022

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(9th Cir. 2008) (citing McKenzie, 738 F.2d at 1008).

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Defendants argue that probable cause existed to arrest Plaintiff because she made an illegal

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left turn, had a broken tail light, and failed to yield. The parties disagree about which party bears

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the burden of establishing probable cause. Opp’n at 10; Reply at 5.
Although the plaintiff bears the burden of proof on the issue of unlawful arrest, she
can make a prima facie case simply by showing that the arrest was conducted
without a valid warrant. At that point, the burden shifts to the defendant to provide
some evidence that the arresting officers had probable cause for a warrantless
arrest. The plaintiff still has the ultimate burden of proof, but the burden of
production falls on the defendant.

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Dubner v. City and County of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001) (collecting cases).
“This minimal burden shifting forces the police department, which is in the better position to
gather information about the arrest, to come forward with some evidence of probable cause.” Id.
“If an officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest
the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that officer was
authorized to make custodial arrest for seat belt violation, punishable only by a fine, “without
balancing costs and benefits or determining whether or not [plaintiff's] arrest was in some sense
necessary,” where the warrantless arrest of anyone violating those provisions was explicitly
allowed by Texas statute); see also Hupp v. City of Walnut Creek, 389 F. Supp. 2d 1229, 1232
(N.D. Cal. 2005) (granting defendants’ motion for summary judgment on illegal seizure claim
where the plaintiff was arrested for failing to wear a seatbelt properly).
Defendants contend that they had a basis to arrest Plaintiff for violation of California
Vehicle Code sections 22101(d) (compliance with turning signs), 24603 (tail lights on vehicles)
and 23152 (driving under the influence of alcohol or alcohol and drugs). The California Supreme
Court has held that a custodial arrest for a fine-only offense, such as a traffic infraction, does not
violate the Fourth Amendment and that compliance with state arrest procedures is not a
component of the federal constitutional inquiry. People v. McKay, 27 Cal. 4th 601, 605 (2002)

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(finding that custodial arrest for the fine-only offense of a traffic infraction for riding a bicycle in

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the wrong direction on a residential street did not violate the Fourth Amendment). As explained

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above, it is undisputed that Wasserman and Buckner observed Plaintiff committing traffic

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infractions by making a left turn where it was prohibited by a sign and for driving a car with a

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broken taillight. Although Defendants also cited Plaintiff for another violation,7 “[p]robable cause

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need only exist as to any offense that could be charged under the circumstances.” Blankenhorn v.

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City of Orange, 485 F.3d 463, 473 (9th Cir. 2007). See also Magallon-Lopez, 817 F.3d at 675

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(citing Devenpeck v. Alford, 543 U.S. 146, 153–55 (2004) and United States v. Ramirez, 473 F.3d

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1026, 1030–31 & n. 2 (9th Cir. 2007)) (“if the facts support probable cause to arrest for one

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offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different

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offense as to which probable cause was lacking”).
Here, the undisputed facts establish that the officers had probable cause to arrest Plaintiff

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for making an illegal left turn and for driving with a faulty taillight. The court therefore grants

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summary judgment to Defendants on Plaintiff’s claim for wrongful arrest.8

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3. Excessive Force
Wasserman moves for summary judgment on Plaintiff’s excessive force claim. He argues

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that the force he used was reasonable as a matter of law. In the alternative, he argues that he is

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entitled to qualified immunity. Buckner, Dittmer, and Paul move for summary judgment on the

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grounds that they were not present when Wasserman used force on Plaintiff and therefore cannot

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be held liable under the Fourth Amendment for Wasserman’s actions.

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A claim of excessive force in the context of an arrest or investigatory stop implicates the

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Reasonableness of the Use of Force

Fourth Amendment right to be free from “unreasonable . . . seizures.” U.S. Const. amend. IV; see

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Wasserman also cited Plaintiff for driving under the influence of alcohol. Defendants do not
point to any evidence of probable cause for that citation, but argue that if any objective probable
cause exists, the statute an officer relies on to cite a suspect is irrelevant. See Devenpeck v. Alford,
543 U.S. 146, 154-55 (2004).
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Because the court has granted summary judgment to the Defendants on Plaintiff’s claims for
unlawful seizure and wrongful arrest, it need not reach the issue of qualified immunity with
respect to these claims.
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Graham, 490 U.S. at 394. “Determining whether the force used to effect a particular seizure is

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reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of

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

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governmental interests at stake.” Id. at 396 (citations and internal quotation marks omitted).

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Because the reasonableness standard is not capable of precise definition or mechanical application,

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“its proper application requires careful attention to the facts and circumstances of each particular

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

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the safety of the officers or others, and whether he is actively resisting arrest or attempting to

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evade arrest by flight.” Id. The “most important single element” is whether there is an immediate
threat to safety. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (quoting

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Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). Courts also consider the “‘quantum of force’

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used to arrest the plaintiff, the availability of alternative methods of capturing or detaining the

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suspect, and the plaintiff’s mental and emotional state.” Luchtel v. Hagemann, 623 F.3d 975, 980

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(9th Cir. 2010) (internal citations omitted).

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The reasonableness inquiry in excessive force cases is an objective one: whether the

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officer’s actions are objectively reasonable in light of the facts and circumstances confronting him,

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without regard to his underlying intent or motivation and without the “20/20 vision of hindsight.”

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Graham, 490 U.S. at 396. “Force is excessive when it is greater than reasonable under the

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circumstances,” Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002), and “the reasonableness of

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force used is ordinarily a question of fact for the jury.” Liston v. Cty. of Riverside, 120 F.3d 965,

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976 n.10 (9th Cir. 1997). “Because the excessive force inquiry nearly always requires a jury to sift

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through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has]

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held on many occasions that summary judgment or judgment as a matter of law in excessive force

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cases should be granted sparingly.” Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012)

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(internal quotations and citations omitted); Torres v. City of Madera, 648 F.3d 1119, 1125 (9th

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Cir. 2011); Santos, 287 F.3d at 853 (“police misconduct cases almost always turn on a jury’s

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credibility determinations.”).

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Plaintiff argues that Defendants’ use of force included Wasserman pointing his firearm at
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Plaintiff, grabbing her arm, pulling her out of the car and onto the ground outside of the vehicle,

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and Wasserman and another officer putting their knees on Plaintiff’s back and handcuffing her.

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Defendants argue that they are entitled to summary judgment because Wasserman’s use of

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force was objectively reasonable as a matter of law. They contend that Plaintiff was

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uncooperative , that she failed to yield and led the officers on a “four-block, slow speed chase,”

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and that she failed to obey his order to turn off the car and get out, and instead reached toward the

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center console of her car. MSJ at 8-9; Reply at 5-7. Defendants assert that Wasserman’s use of

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force in using a bar arm take-down to remove Plaintiff from her car and put her face down on the

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ground was “minimal and entirely reasonable.” Id.
Plaintiff contends that she did not fail to yield to the instruction to pull over. She states

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that when she first saw the red light, she pulled over within a block and waited for ten to fifteen

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seconds to determine whether her vehicle was being stopped by the police. After seeing no

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movement or signal from the police vehicle, Plaintiff then pulled back into the traffic lane and

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slowly continued driving. Within one to two blocks, the police vehicle got closer and the red light

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on top of the vehicle flashed. Plaintiff pulled over and came to a complete stop.

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Plaintiff also contends that she followed every command issued by Wasserman, including

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turning off her car and putting her hands up. Although Defendants argue that the use of force was

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justified because Plaintiff “reached toward the center console” of the car, a reasonable juror could

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conclude that any such movement by Plaintiff was merely to undo her seatbelt to comply with

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Wasserman’s command to get out of the car, and that no reasonable officer could construe the

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movement as a threat to safety.

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In short, in reviewing the facts, a reasonable jury could conclude that the Wasserman was

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not justified in using force on Plaintiff because she had been pulled over for a simple traffic

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violation and did not engage in any evasive, resistive or dangerous behavior. The Ninth Circuit

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has held that “[t]raffic violations generally will not support the use of a significant level of force.”

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Bryan v. MacPherson, 630 F.3d 805, 828 (9th Cir. 2010).

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Furthermore, an officer may be liable for excessive force if he or she handcuffs a suspect
in a tight or painful manner and ignores complaints of pain. See, e.g., Wall v. Cty. of Orange, 364
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F.3d 1107, 1112 (9th Cir. 2004) (reversing qualified immunity claim where officer allegedly

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continued to restrain plaintiff “by handcuffs that hurt and damaged [plaintiff’s] wrist,” noting that

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“[i]t is well-established that overly tight handcuffing can constitute excessive force”); Palmer v.

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Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) (officer “presented no evidence that would justify

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handcuffing [plaintiff] so tightly that he suffered pain and bruises, or to justify his refusal to

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loosen the handcuffs after [plaintiff] complained of the pain.”); Hupp, 389 F. Supp. 2d at 1232

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(noting that Ninth Circuit has held that excessively tight handcuffing can constitute Fourth

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Amendment violation where plaintiff has been demonstrably injured by handcuffs or complaints

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about handcuffs being too tight were ignored by officers). Here, Plaintiff testified that she asked

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the officer who handcuffed her to “please loosen the handcuffs because I was in so much pain.”
Moujaes Dep. 72:14-19. Plaintiff also testified that after being handcuffed she was crying and “in
very severe pain,” was “begging them to get me to the hospital,” that she told the officers that she
was “in a lot of pain,” that she thought her shoulder was dislocated, and that she needed a doctor.
Moujaes Dep. 75:16- 76:9. Taken in the light most favorable to Plaintiff, a reasonable jury could
find that Defendants engaged in excessive force by handcuffing Plaintiff, then ignoring her
complaints of pain.
Viewing the evidence in the light most favorable to Plaintiff and drawing all inferences in
Plaintiff’s favor, a reasonable jury could conclude that Wasserman used excessive force on

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Plaintiff in violation of her constitutional rights. Summary judgment on this claim is therefore
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denied.
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b.

Defendants Buckner, Dittmer, and Paul

Defendants move for summary judgment for Buckner, Dittmer and Paul on the grounds
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that they were not present when Wasserman used force on Plaintiff, and therefore cannot be held
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liable under the Fourth Amendment for Wasserman’s actions. MSJ at 9. Plaintiff contends that
each of them may be held liable for Wasserman’s use of force because they were all “integral
participants.” Opp’n at 19-20.

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Generally, an officer is only liable for his own misconduct. Ashcroft v. Iqbal, 556 U.S.
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662, 677 (2009) (“In a § 1983 suit . . .where masters do not answer for the torts of their servants—

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the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government

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official, his or her title notwithstanding, is only liable for his or her own misconduct.”). However,

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an officer may be liable for conduct where there has been “integral participation . . . in the alleged

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constitutional violation.” Torres, 548 F.3d at 1206 (citing Chuman v. Wright, 76 F.3d 292, 294-95

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(9th Cir. 1996)). “‘[I]ntegral participation’ does not require that each officer's actions themselves

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rise to the level of a constitutional violation.” Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir.

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2004). It does, however, require some fundamental involvement in the conduct that allegedly

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caused the violation. Blankenhorn, 485 F.3d at 481 n.12. “A person deprives another of a

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constitutional right within the meaning of section 1983, if he does an affirmative act, participates
in another’s affirmative acts, or omits to perform an act which he is legally required to do that

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United States District Court
Northern District of California

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causes the deprivation of which the plaintiff complains.” Leer v. Murphy, 844 F.2d 628, 633 (9th

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Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (internal quotations and

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alterations omitted). “The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to have

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caused a constitutional deprivation.” Id. (citations omitted). The Ninth Circuit has rejected the

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“team effort” standard that allows a jury to consider defendants’ conduct together; the proper

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measure is “to base each individual’s liability on his own conduct.” Hopkins v. Bonvicino, 573

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F.3d 752, 769-70 (9th Cir. 2009) (holding that “integral participation” requires “more

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participation” than where officer interviewed a witness, did not participate in the unconstitutional

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search, and had conversations with officers who did conduct the search) (citing Chuman)); see

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also Boyd, 374 F.3d at 780 (rejecting “team effort” theory “because it allowed liability to attach to

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‘a mere bystander’ who had ‘no role in the unlawful conduct.’”).

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A law enforcement officer who does not personally apply force may nonetheless be held

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liable for excessive force where the officer meaningfully participated in the conduct that allegedly

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caused the violation. For example, in Blankenhorn, the Ninth Circuit found that an officer was not

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entitled to summary judgment and could be held liable under section 1983 as an integral

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participant where he arrived during the struggle and held Blankenhorn’s left arm so that it could be

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handcuffed, and in this manner, meaningfully participated in gaining control over plaintiff,
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culminating in another officer’s application of hobble restraints. Blankenhorn, 485 F.3d at 481

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n.3, 12. An officer can also be held liable as an integral participant where he or she had an

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opportunity to intervene and prevent or curtail the violation (e.g., enough time to observe what

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was happening and intervene to stop it), but failed to do so. Sturgis v. Brady, No. C 08-5363 SBA

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(PR), 2016 WL 924859, at *8 (N.D. Cal. Mar. 11, 2016) (citing Robins v. Meecham, 60 F.3d

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1436, 1442 (9th Cir. 1995)).
Defendants argue that Buckner, Dittmer, and Paul did not have an opportunity to observe

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or intervene in Wasserman’s quick and decisive use of force in pulling Plaintiff to the ground and

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handcuffing her.

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i. Buckner

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Northern District of California

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Plaintiff contends that Buckner “was involved with pointing the guns at Ms. Moujaes and

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her passenger, Cuesta.” Opp’n at 19. Defendants argue that although Buckner pointed his gun at

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Cuesta, she is not a party to this case. There is no evidence that Buckner pointed his gun at

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Plaintiff.

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It is undisputed that at the time of the incident, Buckner was Wasserman’s Field Training

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Officer. A reasonable jury could find that a Field Training Officer’s involvement in pointing his

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gun at Plaintiff’s passenger and in making a plan with his trainee Wasserman about how to handle

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the situation prior to exiting the police vehicle could constitute integral participation in the use of

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force.

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Summary judgment as to Buckner is therefore denied.
ii. Dittmer
At the hearing, Plaintiff conceded that she does not have a claim against Dittmer.
Accordingly, the court grants summary judgment as to Dittmer.
iii. Paul
Plaintiff argues that Sergeant Paul endorsed the violations by failing to investigate the use

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of force and signing off on the incident reports. Opp’n at 20. Paul is listed as the “Reviewing

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Officer” on the incident report. Incident Report [Docket No. 29-9 at ECF 2]. However, the record

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is otherwise sparse regarding his involvement. Defendants point out that Paul did not arrive at the
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scene until after the Plaintiff had been handcuffed. MSJ at 10 (citing Paul Dep. 16:25-17:19).

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In her papers, Plaintiff presented no evidence to support her claim that Paul engaged in an

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excessive use of force or was an “integral participant” in the excessive force incident. See Opp’n

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at 19-20. At the hearing, the court provided an opportunity to cite to supporting record evidence,

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but Plaintiff was unable to do so. Summary judgment is therefore granted as to Paul.

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c.

Qualified Immunity

The Defendant Officers also move for summary judgment on the grounds that they are

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entitled to qualified immunity. “The doctrine of qualified immunity protects government officials

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‘from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Stanton v.

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Northern District of California

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Sims, 134 S.Ct. 3, 4–5 (2013) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231

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(2009)). “Qualified immunity gives government officials breathing room to make reasonable but

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mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly

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violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 734 (2011) (quoting Malley v. Briggs, 475

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U.S. 335, 341 (1986)). The analysis involves two inquiries. First, taken in the light most

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favorable to plaintiff, the court must ask whether the facts alleged show that the officer’s conduct
violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer is “no,”
then the court need not inquire further before ruling that the officer is entitled to qualified
immunity. Id. If, however, “a violation could be made out on a favorable view of the parties’
submissions,” the court must examine “whether the [constitutional] right was clearly established.”9
Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (citing Saucier, 533 U.S. at 202).
If the law did not put the officer on notice that his conduct would be clearly unlawful, summary

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judgment based on qualified immunity is appropriate. Saucier, 533 U.S. at 202.
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As discussed above, taken in the light most favorable to Plaintiff, a reasonable jury could
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In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Supreme Court held that a court has the
discretion to decide “which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.”
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conclude that Plaintiff posed little or no threat to the Defendant Officers, was not suspected of

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having committed a serious crime, and was not resisting the officers when they used force on her.

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Accordingly, a reasonable jury could find that the use of force was not justified under the

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circumstances. It has long been established that “[f]orce is excessive when it is greater than

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reasonable under the circumstances,” Santos, 287 F.3d at 854, and that “where there is no need for

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force, any force used is constitutionally unreasonable.” Fontana v. Haskin, 262 F.3d 871, 880 (9th

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Cir. 2001). Therefore, the Defendant Officers are not entitled summary judgment on the issue of

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qualified immunity.

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B.

Claims Against CCSF

Plaintiff brings two claims against CCSF: 1) a section 1983 claim holding CCSF liable on

United States District Court
Northern District of California

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what appears to be a theory of respondeat superior liability for the actions of Wasserman and

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Buckner, and 2) a claim that CCSF developed and maintained policies and customs exhibiting

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deliberate indifference to Constitutional rights.

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1. Respondeat Superior Claim
Municipal entities have no respondeat superior liability under section 1983; that is, they

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have no liability under the theory that they are responsible simply because they employ a person

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who has violated plaintiff’s rights. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691

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(1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, the court grants summary

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judgment on Plaintiff’s claim against CCSF based on a theory of respondeat superior liability for

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the actions of Wasserman and Buckner.

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2. Monell Claim

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Municipal entities such as CCSF are “persons” subject to liability under 42 U.S.C. section

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1983 where official policy or custom causes a constitutional tort. Monell, 436 U.S. at 690. CCSF

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moves to dismiss Plaintiff’s municipal liability claim on the grounds that Plaintiff has not offered

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evidence that her harm was caused by a Department-wide policy or practice of falsely arresting

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persons, or for using excessive force, under Monell v. Department of Social Services, 436 U.S. 658

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(1978). At the hearing, Plaintiff conceded that she cannot support a Monell claim against CCSF.

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Accordingly, the court grants summary judgment on Plaintiff’s Monell claim.
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IV.

CONCLUSION
For the reasons set forth above, the court grants summary judgment on Plaintiff’s unlawful

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seizure and unlawful arrest claims, and grants summary judgment as to Defendants Dittmer and
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Paul. The court also grants summary judgment on Plaintiff’s claims against CCSF.

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IT IS SO ORDERED.
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Dated: September 8, 2016
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______________________________________
Donna M. Ryu
United States Magistrate Judge

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United States District Court
Northern District of California

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