Hahn v. Carlsbad, City of et al

Filing 85

ORDER Granting In Part and Denying In Part 72 , 73 Defendants' Motion for Summary Judgment. Defendants' motions for summary judgment are granted in part and denied in part. Specifically, the City's motion is granted as to the Monell claim and denied as to the remaining claims. The individual Defendants' motion is (a) granted as to the unlawful arrest and the malicious prosecution claims, and all claims against Officers Karches and Seapker, and (b) denied as to the remainin g claims. The Court continues the following pretrial deadlines: The Memorandum of Contentions of Fact and Law is due by 6/26/2017. The Proposed Pretrial Conference Order is due by 6/30/2017. The Final Pretrial Conference is set for 7/7/2017 at 10:30 AM before Judge Dana M. Sabraw. The Jury Trial is set for 7/31/2017 at 09:00 AM before Judge Dana M. Sabraw. Signed by Judge Dana M. Sabraw on 6/16/2017. (aef)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CINDY MICHELLE HAHN, an individual, 12 Plaintiff, 13 14 15 16 17 v. Case No. 15-cv-2007 DMS (BGS) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CITY OF CARLSBAD, OFFICER J. KNISLEY, OFFICER KENYATTE VALENTINE, OFFICER KARCHES, CORPORAL GALANOS, OFFICER SEAPKER, and DOES 1 THROUGH 50, Defendants. 18 19 20 This case comes before the Court on Defendants’ motions for summary 21 judgment pursuant to Federal Rule of Civil Procedure 56. The motions came on for 22 hearing on June 9, 2017. Benjamin J. Meiselas appeared for Plaintiff. Golnar 23 Jabbari Fozi, Daniel Stephen Modafferi, and Paul G. Edmonson appeared for 24 Defendants. After considering the parties’ briefs, oral argument, and the record 25 before the Court, Defendants’ motions are granted in part and denied in part. 26 /// 27 /// 28 /// –1– . 15-cv-2007 DMS (BGS) 1 I. 2 BACKGROUND 1 3 At 3:38 p.m. on July 31, 2013, Officer Kenyatte Valentine began to impound 4 a vehicle for having expired registration tags. (Declaration of Kenyatte Valentine 5 (“Valentine Decl.”) ¶ 5.) The vehicle was parked on Beech Street, west of Garfield 6 Street, in the City of Carlsbad. (Id. ¶¶ 5–6.) When Officer Valentine began to 7 conduct an inventory search of the vehicle, Plaintiff approached him and asked him 8 what was going on. (Id. ¶ 5; Notice of Lodgment (“NOL”) in Opp’n to Mot., Ex. 1 9 at 10, 14–15.) Officer Valentine asked Plaintiff whether the vehicle belonged to her, 10 and she responded, “No.” (Valentine Decl. ¶ 5; NOL in Opp’n to Mot., Ex. 1 at 15.) 11 The events that transpired thereafter are disputed. Plaintiff argues Officer Valentine 12 told her to “mind your own fucking business” and called her a “bitch.” (NOL in 13 Opp’n to Mot., Ex. 1 at 15, 21.) In contrast, Defendants contend Plaintiff began 14 yelling and swearing at Officer Valentine. (NOL in Supp. of Mot., Ex. 3 at 45; id., 15 Ex. 4 at 50–51.) Plaintiff eventually walked away and called the Carlsbad Police 16 Department to complain about Officer Valentine. (Id., Ex. 5 at 55.) She was 17 immediately placed on hold. (Id.) When her friend Misty Cervantes pulled up in 18 front of Plaintiff in a white Infinity SUV, Plaintiff hung up without filing a complaint 19 and climbed into the front passenger seat. (Id. at 55–59.) 20 After getting the vehicle towed, Officer Valentine returned to his motorcycle 21 when he observed the SUV Plaintiff was riding in proceeding northbound on 22 Garfield Street. (Valentine Decl. ¶ 6.) Officer Valentine noticed Cervantes was 23 driving without her seatbelt fastened. (Id.; NOL in Supp. of Mot., Ex. 6 at 71.) 24 Based on that observation, Officer Valentine effectuated a traffic stop, and Cervantes 25 pulled into a parking lot. (Valentine Decl. ¶ 6.) The parties also dispute the events 26 27 28 1 Because the parties dispute the material facts of this case, the Court provides a brief summary of the case for background purposes only. –2– . 15-cv-2007 DMS (BGS) 1 which transpired immediately following the traffic stop. The records show Plaintiff 2 initially exited the vehicle from the passenger side and went to the rear of the SUV 3 and opened up the rear hatch to retrieve registration and insurance cards. (NOL in 4 Opp’n to Mot., Ex. 1 at 23–26; NOL in Supp. of Mot. at Ex. 1 at 5.) However, she 5 became distracted and began to look for her son’s clothing instead. 2 (NOL in Opp’n 6 to Mot., Ex. 1 at 23–26; NOL in Supp. of Mot. at Ex. 1 at 6.) Subsequently, Plaintiff 7 proceeded to the driver’s side of the car, where Officer Valentine was standing. 8 (NOL in Opp’n to Mot., Ex. 1 at 26, 28; NOL in Supp. of Mot. at Ex. 2 at 22–23.) 9 Officer Valentine told Plaintiff, “Go sit on the curb or get in the car now.” (NOL in 10 Opp’n to Mot., Ex. 1 at 33; NOL in Supp. of Mot. at Ex. 2 at 23.) It is disputed 11 whether Plaintiff complied with Officer Valentine’s orders. 12 Officer Valentine then told Plaintiff that she was under arrest. (NOL in Opp’n 13 to Mot., Ex. 1 at 37; Valentine Decl. ¶ 10.) The parties further dispute what 14 transpired when Officer Valentine attempted to arrest Plaintiff. At some point 15 during the encounter, Officer Valentine grabbed Plaintiff’s wrists and swept her legs 16 out from under her, causing her to fall to the ground. (NOL in Supp. of Mot., Ex. 2 17 at 33–36; id., Ex. 5 at 62.) Plaintiff yelled for help. (NOL in Supp. of Mot., Ex. 1.) 18 Subsequently, Officer Jody Knisley arrived on the scene and immediately knelt 19 down besides Plaintiff. (Id., Ex. 9 at 110–11.) Corporal Richard Galanos arrived on 20 the scene as Officer Knisley ran to assist Officer Valentine. 3 (Declaration of Richard 21 Galanos (“Galanos Decl.”) ¶ 4.) To restrain Plaintiff, Officer Knisley “punched 22 [Plaintiff] on the right side of the face by her right cheek bone” and “delivered one 23 distraction knee strike to [Plaintiff’s] right side.” (NOL in Supp. of Mot., Ex. 8 at 24 100.) Plaintiff contends Officer Knisley administered further strikes to her head with 25 26 27 28 2 The parties dispute whether Plaintiff retrieved the registration and insurance cards and handed them to Officer Valentine. 3 Corporal Galanos conducted scene control during this incident. (Galanos Decl. ¶ 4.) –3– . 15-cv-2007 DMS (BGS) 1 his fist. (NOL in Opp’n to Mot., Ex. 1 at 48.) Officers Valentine and Knisley 2 eventually handcuffed Plaintiff and placed her in the back of a patrol car.4 Officers 3 Karches and Seapker arrived on the scene after Plaintiff was in custody. 4 II. 5 LEGAL STANDARD 6 Summary judgment is appropriate if there is no genuine issue as to any 7 material fact, and the moving party is entitled to judgment as a matter of law. Fed. 8 R. Civ. P. 56(c). The moving party has the initial burden of demonstrating that 9 summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 10 (1970). The moving party must identify the pleadings, depositions, affidavits, or 11 other evidence that it “believes demonstrates the absence of a genuine issue of 12 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A material 13 issue of fact is one that affects the outcome of the litigation and requires a trial to 14 resolve the parties’ differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 15 F.2d 1301, 1306 (9th Cir. 1982). 16 The burden then shifts to the opposing party to show that summary judgment 17 is not appropriate. Celotex, 477 U.S. at 324. The opposing party’s evidence is to be 18 believed, and all justifiable inferences are to be drawn in its favor. Anderson v. 19 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary 20 judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. 21 Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific 22 facts showing there is a genuine issue for trial. Id.; see also Butler v. S.D. Dist. Atty’s 23 Off., 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough 24 evidence to require plaintiff to go beyond pleadings, plaintiff must counter by 25 producing evidence of his own). More than a “metaphysical doubt” is required to 26 27 4 28 Plaintiff states one of the officers tightened the handcuffs on her wrists to the extent that “[she] couldn’t even feel [her] hand.” (NOL in Opp’n to Mot., Ex. 1 at 51.) –4– . 15-cv-2007 DMS (BGS) 1 establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith 2 Radio Corp., 475 U.S. 574, 586 (1986). 3 III. 4 DISCUSSION 5 A. § 1983 Claim 6 In her first claim, Plaintiff alleges Defendant officers, acting under the color 7 of law, violated her Fourth Amendment rights to be free from unlawful arrest, 8 malicious prosecution, and excessive force. 9 judgment on all claims. Defendants move for summary 10 1. Unlawful Arrest and Malicious Prosecution 11 To succeed on claims for false arrest and malicious prosecution, a plaintiff 12 must show the defendants lacked probable cause to arrest and to prosecute her. See 13 Dubner v. City & Cty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001) (“A claim for 14 unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, 15 provided the arrest was without probable cause or other justification.”); Lacey v. 16 Maricopa Cty, 693 F.3d 896, 919 (9th Cir. 2012) (setting forth elements of malicious 17 prosecution claim under § 1983). “Probable cause exists when there is a fair 18 probability or substantial chance of criminal activity.” United States v. Bishop, 264 19 F.3d 919, 924 (9th Cir. 2001) (citing Illinois v. Gates, 462 U.S. 213, 235 (1983)). 20 Defendants argue collateral estoppel precludes Plaintiff from re-litigating the 21 issue of probable cause because the state court already determined there was 22 probable cause to arrest Plaintiff. Defendants explain the state court found sufficient 23 evidence to bind over Plaintiff for trial and set bail on charges including resisting 24 arrest under California Penal Code § 148, and resisting arrest with force and violence 25 under California Penal Code § 69. 26 opportunity to challenge a probable cause determination during the course of the 27 prior proceedings,” collateral estoppel prevents her “from relitigating the issue in a 28 subsequent § 1983 claim.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th “When an individual has a full and fair –5– . 15-cv-2007 DMS (BGS) 1 Cir. 2004). However, collateral estoppel does not apply “‘where the plaintiff 2 establishes that the arresting officer lied or fabricated evidence presented at the 3 preliminary hearing.’” Wige v. City of L.A., 713 F.3d 1183, 1186 (9th Cir. 2013) 4 (quoting McCutchen v. City of Montclair, 73 Cal. App. 4th 1138, 1147 (Cal. Ct. App. 5 1999)). When an officer “misrepresents the nature of the evidence supporting 6 probable cause and that issue is not raised at the preliminary hearing, a finding of 7 probable cause would not bar relitigation of the issue of integrity of the evidence.” 8 McCutchen, 73 Cal. App. 4th at 1147. “To rebut the presumption [of probable 9 cause], a plaintiff must point to something more ‘than the fact that the officers’ 10 reports were inconsistent with [his] own account of the incidents leading to his 11 arrest.” Carino v. Gorski, No. 07-455-PHX-NVW, 2008 WL 4446706, at *6 (D. 12 Ariz. Sept. 30, 2008) (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 483 13 (9th Cir. 2007)). 14 Here, Plaintiff does not dispute the parties litigated the issue of probable cause 15 in the state court proceeding. Rather, she argues collateral estoppel is inapplicable 16 because there are triable issues of fact as to whether Officer Valentine failed to 17 disclose material evidence at the preliminary hearing. Plaintiff, however, does not 18 point to any evidence of fabrication other than the assertion that Officer Valentine’s 19 testimony was inconsistent with her account of the incident, which is insufficient to 20 preclude summary judgment. See Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 21 1994) (stating that to show evidence of fabrication, a plaintiff must show evidence 22 “other than the fact that the officers’ reports were inconsistent with [his] own account 23 of the incidents leading to his arrest.”). Officer Valentine’s testimony at the 24 preliminary hearing reflected the same information stated in his investigation report. 25 See Fenters v. Chevron, No. CV-F-05-1630 OWW DLB, 2010 WL 5477710, at *26 26 (E.D. Cal. Dec. 30, 2010) (finding that collateral estoppel applied to prevent re- 27 litigation on probable cause because plaintiff failed to show fabrication as 28 “Defendant Hutton’s testimony at the preliminary hearing was the same information –6– . 15-cv-2007 DMS (BGS) 1 that was reflected in his written investigation report.”). The fact that Officer 2 Valentine testified regarding the incident in a manner that differed from Plaintiff’s 3 perception does not amount to the type of wrongful conduct that rebuts the 4 presumption of probable cause. See Awabdy, 368 F.3d at 106 (the presumption can 5 be rebutted through proof that a police officer “improperly exerted pressure on the 6 prosecutor, knowingly provided misinformation to him, concealed exculpatory 7 evidence, or otherwise engaged in wrongful or bad faith conduct that was actively 8 instrumental in causing the initiation of legal proceedings.”). 9 Plaintiff is collaterally estopped from re-litigating the issue of probable cause. 10 Defendants’ motion for summary judgment is therefore granted with respect to the 11 unlawful arrest and malicious prosecution claims. Consequently, 12 2. Excessive Force 13 The Fourth Amendment prohibition against unreasonable seizures permits 14 law enforcement officers to use only such force to effect an arrest as is “objectively 15 reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). 16 “The ‘reasonableness’ of a particular use of force must be judged from the 17 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 18 hindsight.” Id. at 396. Because the Fourth Amendment test for reasonableness is 19 inherently fact-specific, see Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) 20 (citing Reed v. Hoy, 909 F.2d 324, 330 (9th Cir. 1989)), it is a test that escapes 21 “mechanical application” and “requires careful attention to the facts and 22 circumstances of each particular case.” Graham, 490 U.S. at 396; Fikes v. Cleghorn, 23 47 F.3d 1011, 1014 (9th Cir. 1995). In determining whether a particular use of force 24 was reasonable, courts consider: “(1) the severity of the crime at issue; (2) whether 25 the suspect posed an immediate threat to the safety of the officers or others; and (3) 26 whether the suspect actively resisted arrest or attempted to escape.” S.B. v. Cty. of 27 S.D., No. 15-56848, 2017 WL 1959984, at *4 (9th Cir. May 12, 2017) (citing 28 Graham, 490 U.S. at 396). Of all these factors, the “most important” one is “whether –7– . 15-cv-2007 DMS (BGS) 1 the suspect posed an immediate threat to the safety of the officers or others.” George 2 v. Morris, 736 F.3d 829, 838 (9th Cir. 2013) (quoting Bryan v. MacPherson, 630 3 F.3d 805, 826 (9th Cir. 2010) (internal quotations omitted)). a. 4 Officers Karches and Seapker 5 Defendants move for summary judgment on the excessive force claim against 6 Officers Karches and Seapker. Defendants contend these officers were not on scene 7 when Plaintiff was arrested. Plaintiff does not oppose this aspect of Defendants’ 8 motion. Because Officers Karches and Seapker did not participate in the alleged 9 constitutional deprivation, Plaintiff’s claim against them fails. Accordingly, 10 Officers Karches and Seapker are entitled to summary judgment on the excessive 11 force claim. 5 b. 12 Officer Valentine 13 Defendants, relying almost entirely on their version of the incident, argue the 14 undisputed facts show Officer Valentine did not use excessive force against Plaintiff. 15 They contend Plaintiff exited the vehicle during a traffic stop without permission 16 and refused to return to the car or sit by the curb despite Officer Valentine’s orders. 17 When Officer Valentine grabbed Plaintiff’s wrists to place her under arrest for 18 obstructing an officer, Plaintiff resisted by pulling her arms away and running away. 19 Officer Valentine pursued Plaintiff and grabbed both of her wrists to handcuff her, 20 but she again resisted by slipping her wrists out of his grip. In order to restrain 21 Plaintiff, Officer Valentine tripped Plaintiff, causing her to fall on the ground, and 22 then held her left hand down and draped his right leg over her body while waiting 23 for backup. Defendants contend Officer Valentine’s use of force was reasonable 24 25 26 27 28 5 For similar reasons, Defendants’ motion for summary judgment on the remaining claims against Officers Karches and Seapker is granted. At oral argument, Plaintiff’s counsel raised for the first time that Officers Karches and Seapker failed to give aid to Plaintiff when she was in custody. The TAC, however, does not expressly include this allegation. Given the absence of notice to Defendants, Plaintiff’s belated attempt to add such a claim is rejected. –8– . 15-cv-2007 DMS (BGS) 1 under these circumstances. 2 Plaintiff’s account of the incident differs significantly, thereby raising genuine 3 issues of material fact regarding whether Officer Valentine used excessive force. 4 First, Plaintiff correctly notes she was arrested for a nonviolent and relatively minor 5 offense. Second, Plaintiff contends a reasonable jury could conclude she posed no 6 immediate threat to Officer Valentine’s safety during the encounter. Wearing 7 sandals and a terry cloth dress over her bikini, Plaintiff contends she was in no 8 position to resist, did not threaten Officer Valentine, and complied with Officer 9 Valentine’s orders by walking to the curb with her hands in the air. Third, Plaintiff 10 disputes she evaded arrest by running away. Once Officer Valentine stated she was 11 under arrest, Plaintiff claims she turned around with her hands remaining in the air, 12 asking “For what?” Officer Valentine, without warning, allegedly lunged at Plaintiff 13 and swept her legs out from under her, causing her to fall to the ground. Plaintiff 14 contends Officer Valentine then “deliberately threw [her] body up in the air to hit 15 [her] head straight first on the ground.” (NOL in Opp’n to Mot., Ex. 1 at 45.) Once 16 she fell again on the ground, Officer Valentine allegedly inflicted pain by exerting 17 pressure on her body with his knee. 18 Because reasonableness of force is necessarily fact-specific, it is often a 19 question that escapes resolution on summary judgment. See Chew, 27 F.3d at 1440 20 (“Because questions of reasonableness are not well-suited to precise legal 21 determination, the propriety of a particular use of force is generally an issue for the 22 jury.”). Viewing the facts most favorably to Plaintiff, as the Court must on the 23 present motion, Officer Valentine lunged at Plaintiff without any provocation on her 24 part and caused Plaintiff to fall on the ground. According to Plaintiff, this occurred 25 even though she was complying with his commands. A reasonable jury viewing the 26 circumstances in this light could conclude that Officer Valentine’s use of force was 27 not objectively reasonable, and therefore, excessive. Accordingly, Defendants’ 28 motion for summary judgment on the excessive force claim against Officer –9– . 15-cv-2007 DMS (BGS) 1 Valentine is denied. 2 c. Officer Knisley 3 Defendants contend Officer Knisley is entitled to summary judgment on the 4 excessive force claim because his actions were objectively reasonable under the 5 circumstances. When Officer Knisley arrived on the scene, Defendants argue he 6 saw Officer Valentine on the ground with Plaintiff and believed Plaintiff posed a 7 physical danger to Officer Valentine. According to Officer Knisley, Plaintff was 8 resisting arrest by flailing her feet and her right hand. Therefore, he immediately 9 got on the ground to put handcuffs on Plaintiff, but Plaintiff continued to resist by 10 grabbing and dislodging his microphone and attempting to punch him in the face. In 11 order to restrain Plaintiff, Officer Knisley used “distraction blows” and struck her 12 once on the face with a clenched fist and once on the side of her leg with his knee. 13 In opposition, however, Plaintiff has provided sufficient evidence to 14 demonstrate the existence of genuine issues of material fact regarding the 15 circumstances of the event and the amount of force Officer Knisley used to effectuate 16 the arrest. Plaintiff has offered evidence showing she did not pose a threat to Officer 17 Knisley or actively resist arrest. Plaintiff testified during deposition that when 18 Officer Kinsley arrived at the scene, Plaintiff did not flail her hands or feet, but 19 remained still on the ground. Plaintiff asserts she “was not attempting to throw 20 Officer Valentine off of her nor was she kicking her legs violently attempting to 21 break free from Officer Valentine’s grasp.” (NOL in Opp’n to Mot., Ex. 7, at 184.) 22 When Officer Knisley approached her, Plaintiff reached out her right arm towards 23 him, stating “Help me.” (Id., Ex. 1, at 47.) Yet, according to Plaintiff, Officer 24 Knisley took Plaintiff’s arm and twisted it backwards, and then delivered multiple 25 blows to her head and body using his fist and knee. 26 27 28 In addition, Plaintiff has submitted a report from Scott DeFoe, a police practices expert, who opined that: Officer Knisley used unreasonable and excessive force when he – 10 – . 15-cv-2007 DMS (BGS) 1 2 3 4 5 initially punched Mrs. Cindy Michelle Hahn in the face with his right hand in violation of Carlsbad Police Department Police Manual … Upon review of the video in this incident, Officer Knisley had control of Mrs. Hahn’s right arm and Officer Valentine had control of Mrs. Hahn’s left arm and at no time did the video depict Mrs. Hahn attempt to strike Officer Knisley with her fist at any time when Officer Knisley initially punched Mrs. Hahn at approximately 0:48 seconds of the video of this incident. 6 7 (NOL in Opp’n to Mot., Ex. 7, at 184.) Therefore, viewing the facts in the light most 8 favorable to Plaintiff, a reasonable jury could conclude Officer Knisley used 9 excessive force during the arrest. Because triable issues of fact exist, Officer Knisley 10 11 is not entitled to summary judgment on this claim. d. Corporal Galanos 12 Defendants also move for summary judgment on the excessive force claim 13 against Corporal Galanos, arguing Corporal Galanos did not use any force against 14 Plaintiff. In the Ninth Circuit, however, a defendant may be held liable as a 15 supervisor under § 1983 upon a showing of either “(1) his or her personal 16 involvement in the constitutional deprivation, or (2) a sufficient causal connection 17 between the supervisor’s wrongful conduct and the constitutional violation.” Starr 18 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). The requisite causal connection can 19 be established by (1) the supervisor’s “own culpable action or inaction in the 20 training, supervision, or control of subordinates;” (2) “their acquiescence in the 21 constitutional deprivation of which a complaint is made;” or (3) “for conduct that 22 showed a reckless or callous indifference to the rights of others.” Cunningham v. 23 Gates, 229 F.3d 1271, 1292 (9th Cir. 2000). 24 It is undisputed that Corporal Galanos was present at the scene of Plaintiff’s 25 arrest, was in a position to observe the arrest, and was the highest ranking officer 26 until Sergeant Lowe arrived after Plaintiff was in custody. Based on this evidence, 27 a reasonable jury could find that Corporal Galanos was aware of Officers Valentine 28 and Knisley’s alleged unconstitutional conduct, yet failed to exercise control over – 11 – . 15-cv-2007 DMS (BGS) 1 his subordinate officers. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A 2 supervisor is only liable for constitutional violations of his subordinates if [he] ... 3 knew of the violations and failed to act to prevent them.”); Carrasco v. City of 4 Vallejo, No. CIV.S001968 WBS JFM, 2001 WL 34098655, at *7 (E.D. Cal. Sept. 6, 5 2001) (“Sergeant Mortenson’s presence on the scene is sufficient to create a triable 6 issue concerning his liability as a supervisor.”). Accordingly, the officers’ motion 7 for summary judgment on the supervisory liability claim against Corporal Galanos 8 is denied. 9 3. Qualified Immunity 10 Defendants contend Officers Valentine and Knisley are entitled to qualified 11 immunity on the excessive force claim because an officer in their “position could 12 reasonably believe that [their actions] were reasonable under the totality of the 13 circumstances, and not a constitutional violation.” (Officers’ Mem. of P. & A. in 14 Supp. of Mot. at 27–28.) 15 performing discretionary functions from liability for civil damages unless their 16 conduct violates clearly established statutory or constitutional rights of which a 17 reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 640 18 (1987). “In determining whether an officer is entitled to qualified immunity, we 19 consider (1) whether there has been a violation of a constitutional right; and (2) 20 whether that right was clearly established at the time of the officer’s alleged 21 misconduct.” C.V. by & through Villegas v. City of Anaheim, 823 F.3d 1252, 1255 22 (9th Cir. 2016) (quoting Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)). A 23 right is clearly established when “[t]he contours of the right [are] sufficiently clear 24 that a reasonable official would understand that what he is doing violates that right.” 25 Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, an officer’s 26 actions violate clearly established law when “it would be clear to a reasonable officer 27 that his conduct was unlawful in the situation he confronted.” Torres v. City of L.A., 28 548 F.3d 1197, 1211 (9th Cir. 2008). Qualified immunity shields government officials – 12 – . 15-cv-2007 DMS (BGS) 1 The first inquiry is whether there has been a violation of a constitutional right. 2 As discussed above, Plaintiff raises genuine disputes about the circumstances 3 leading up to the arrest and the officers’ use of force to effect the arrest. Therefore, 4 viewing the facts in light most favorable to Plaintiff, a reasonable jury could find 5 that the officers used an unreasonable amount of force to effect the arrest, and as a 6 result, violated Plaintiff’s Fourth Amendment rights. 7 The next inquiry is whether the right was clearly established on the date of the 8 incident. “[T]he use of excessive force by officers in effecting an arrest was clearly 9 proscribed by the Fourth Amendment at least as early as 1985.” Palmer v. 10 Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993). Indeed, “[i]t was clearly established 11 at the time of the incident that striking and kneeing a person being arrested who was 12 not physically resisting constituted excessive force.” Rice v. Murakami, 671 F. 13 App’x 472, 473 (9th Cir. 2016); see Young v. Cty. of L.A., 655 F.3d 1156, 1168 (9th 14 Cir. 2011) (“The principle that it is unreasonable to use significant force against a 15 suspect who was suspected of a minor crime, posed no apparent threat to officer 16 safety, and could be found not to have resisted arrest, was thus well-established in 17 2001”). Viewing the evidence in the light most favorable to Plaintiff, a jury could 18 find that Plaintiff complied with the officers’ orders, and did not resist arrest or pose 19 a threat. A reasonable officer in Officers Valentine or Knisley’s position would have 20 known that striking and kicking the suspect to effect an arrest under such 21 circumstances would violate the Fourth Amendment. See Meredith v. Erath, 342 22 F.3d 1057, 1061 (9th Cir. 2003) (viewing the facts in light most favorable to plaintiff, 23 the Court found it was objectively unreasonable when defendant “grabbed [plaintiff] 24 by her arms, forcibly threw her to the ground, and, twisting her arms, handcuffed her 25 … [when] [Plaintiff] did not pose a safety risk and made no attempt to [evade 26 arrest]…. [and] [Defendant] was investigating … nonviolent offenses.”). 27 Consequently, Officers Valentine and Knisley are not entitled to qualified immunity. 28 See Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000) (“summary judgment – 13 – . 15-cv-2007 DMS (BGS) 1 based on qualified immunity is improper if, under the plaintiff’s version of the facts, 2 and in light of the clearly established law, a reasonable officer could not have 3 believed his conduct was lawful.”). 4 B. Monell Claim 5 In her second claim, Plaintiff alleges the City’s established policies and 6 customs violated her Fourth and Fourteenth Amendment rights. Plaintiff explains 7 the City has the following unconstitutional policies and customs: (1) “deliberately 8 indifferent training of its law enforcement officers in making lawful arrests,” (2) 9 “ratification of police misconduct,” (3) “encouragement of arrests without probable 10 cause,” and (4) “failure to conduct adequate investigations of police misconduct such 11 that future violations do not occur,” (5) “retaliation against individuals who 12 complain against Carlsbad Police Officers,” and (6) “permitting and tolerating 13 unlawful excessive force against the public.” (Third Amended Complaint (“TAC”) 14 ¶¶ 14–15, 17.) The City moves for summary judgment, arguing Plaintiff is unable 15 to establish the existence of any unconstitutional policy or custom. 16 1. 17 “[T]he inadequacy of police training may serve as the basis for § 1983 liability 18 only where the failure to train amounts to deliberate indifference to the rights of 19 persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 20 489 U.S. 378, 388 (1989). A plaintiff seeking to hold a city liable based on an 21 alleged failure to train its police officers must show that “(1) he was deprived of a 22 constitutional right, (2) the City had a training policy that amounts to deliberate 23 indifference to the [constitutional] rights of the persons with whom [its police 24 officers] are likely to come into contact; and (3) his constitutional injury would have 25 been avoided had the City properly trained those officers.” Blankenhorn, 485 F.3d 26 at 484 (citing Lee v. City of L.A., 250 F.3d 668, 681 (9th Cir. 2001)) (internal 27 quotation marks omitted). 28 Deliberately Indifferent Training The City argues it is entitled to summary judgment because its training – 14 – . 15-cv-2007 DMS (BGS) 1 policies related to making lawful arrests are adequate, and its officers completed 2 extensive training in accordance with the the policies. Plaintiff does not contest the 3 City’s argument. According to the declaration of Lieutenant Kevin Lehan, the City’s 4 training policies adequately trained its deputies on the use of force and laws related 5 to arrest. 6 Lieutenant Lehan attested the policy and custom of the City’s police 6 department with respect to arrest and use of force is “to follow the law, Police 7 Officers Standards and Training (“P.O.S.T.”) Standards & Guidelines, and 8 departmentally approved police officer training.” (Declaration of Kevin Lehan 9 (“Lehan Decl.”) ¶ 3.) 10 In particular, at the time of Plaintiff’s arrest, the City’s “Policy 300” provided 11 guidelines on the reasonable use of force during arrests. Policy 300 expressly 12 incorporates California Penal Code § 835a in describing use of force to effect an 13 arrest: 14 Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. (Penal Code § 835a). 15 16 17 18 19 20 21 (NOL in Supp. of Mot., Ex. 20 at 21.) Regarding Policy 300, Plaintiff’s police 22 practices expert Scott Defoe testified this is a “standard use of force policy 23 [implemented] throughout California” and opined the policy was adequate. (Id., Ex. 24 10 at 128.) Mr. Defoe also opined the City’s police department provide adequate 25 training to its police officers on perishable skills. Moreover, the City has presented evidence that all of the officers employed 26 27 6 28 Lieutenant Lehan is an Arrest and Control instructor, who has trained the City’s officers since 2006. (Lehan Decl. ¶ 4.) – 15 – . 15-cv-2007 DMS (BGS) 1 by its police department are graduates of police academies, where they are trained 2 in subjects including arrest and control. The City’s police department requires each 3 officer “to undergo 724 hours of training during their first year … [and] to complete 4 a minimum of 24 hours of training every two years in courses certified by 5 P.O.S.T.[,]” which includes four hours of training in arrest and control procedures. 6 (Lehan Decl. ¶ 5.) In addition to the P.O.S.T. training, each officer must complete 7 “a two-hour Perishable Skills Program (“PSP”) training specifically in the subject of 8 arrest and control procedures” every quarter. (Id. ¶ 6.) 9 In opposition, Plaintiff has failed to come forward with any evidence 10 regarding the alleged deliberately inadequate training of the City’s officers. Because 11 Plaintiff has failed to raise a genuine issue of material fact regarding the City’s 12 liability under Monell for inadequate training, the Court grants summary judgment 13 in favor of the City with respect to this allegation. See Waggy v. Spokane Cnty. 14 Wash., 594 F.3d 707, 713 (9th Cir.2010) (upholding grant of summary judgment for 15 county on plaintiff’s Monell claims where plaintiff “point[ed] to no express county 16 policy” and “provid[ed] no evidence showing even an inference that such a [policy] 17 exists”). 18 2. 19 A municipality may be held liable for a constitutional violation under the 20 theory of ratification “when the person causing the violation has ‘final policy making 21 authority.’” 22 omitted). To establish ratification, a plaintiff must show “authorized policymakers” 23 had “knowledge of the constitutional violation” and “approve[d] a subordinate’s 24 decision and the basis for it.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) 25 (quoting Christie, 176 F.3d at 1238). A plaintiff must present “evidence of a 26 conscious, affirmative choice” to ratify a subordinate’s conduct by an authorized 27 policy maker. Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992). Therefore, 28 “[a] mere failure to overrule a subordinate’s actions, without more, is insufficient to Ratification of Police Misconduct Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (citations – 16 – . 15-cv-2007 DMS (BGS) 1 support a § 1983 claim.” Lytle, 382 F.3d at 987. 2 An official may have been delegated final policymaking authority where “the 3 official’s discretionary decision is [not] ‘constrained by policies not of that official’s 4 making’ and ... [not] ‘subject to review by the municipality’s authorized 5 policymakers.’” Ulrich v. City and Cty of S.F., 308 F.3d 968, 986 (9th Cir. 2002) 6 (quoting Christie, 176 F.3d at 1236–37); see Lytle, 382 F.3d at 983 (defining a final 7 policymaker as an individual in a position of authority such that “a final decision by 8 that person may appropriately be attributed to the [defendant public body].”). 9 Whether a particular official has “final policymaking authority” is a question of state 10 law. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). 11 In support of the ratification theory, Plaintiff relies solely on the deposition 12 testimony of Lieutenant Lehan. Plaintiff contends Lieutenant Lehan is an official 13 with final policymaking authority who ratified the officers’ alleged use of excessive 14 force against Plaintiff. The City argues Plaintiff has not established that it delegated 15 any final policymaking authority to Lieutenant Lehan. 16 Government Code section 38630 the City’s police department “is under the control 17 of the chief of police,” who has the final policymaking authority. Lieutenant Lehan’s 18 deposition testimony confirms that he is not the chief of the City’s police department 19 nor was he delegated with any final policymaking authority. Lieutenant Lehan, an 20 instructor that trains officers on defense tactics, testified he did not implement the 21 use of force policy, and in fact, he was even not aware “there was a policy in place 22 that if there was a use of force, a written report was supposed to be submitted to 23 Defensive Tactics[.]” (NOL in Opp’n to Mot., Ex. 6 at 171.) Indeed, he testified, 24 “In 2013, I didn’t have any access to our policy manual other than I would 25 acknowledge I received the revised policy manual with all the other employees in 26 the agency.” (Id. at 163.) Accordingly, Plaintiff has failed to provide sufficient 27 evidence to establish that Lieutenant Lehan is an official “responsible for 28 establishing final policy with respect to the subject matter in question.” Pembaur, – 17 – Under California . 15-cv-2007 DMS (BGS) 1 475 U.S. at 483–84. 2 Even if Lieutenant Lehan had “final policymaking authority,” the City 3 contends Plaintiff cannot establish that he ratified the officers’ actions. The Court 4 agrees. Plaintiff has not offered any basis for concluding that Lieutenant Lehan’s 5 deposition testimony amounts to affirmative approval of their alleged 6 unconstitutional conduct. Lieutenant Lehan was deposed more than three years after 7 the incident. When asked in retrospect whether, Officers Valentine and Knisley 8 “exercised textbook policy and protocol according to Carlsbad,” Lieutenant Lehan 9 responded, “Absolutely. They performed as trained, as I would expect them to train 10 and expect them to perform.” (NOL in Opp’n to Mot, Ex. 6 at 168.) Lieutenant 11 Lehan’s statements during deposition do not constitute affirmative or deliberate 12 conduct ratifying the officers’ alleged unconstitutional conduct. See Davidson v. 13 City of Stafford, Tex., 848 F.3d 384, 395 (5th Cir. 2017) (“good faith statements 14 made while defending complaints of constitutional violations by municipal 15 employees do not demonstrate ratification.”). Because Plaintiff has failed to raise a 16 genuine issue of material fact regarding the City’s liability under Monell for the 17 theory of ratification, the Court grants summary judgment in favor of the City with 18 respect to this allegation. 19 21 Customs of Arrests Without Probable Cause, Failure to Conduct Adequate Investigations of Police Misconduct, Retaliation against Individuals who Complain Against Officers, and Use of Unlawful Excessive Force Against the Public 22 A municipality may be sued for constitutional deprivations caused by a 23 government “custom,” even when the custom has not been formally approved 24 through official decision-making channels. Monell v. Dep’t of Soc. Servs. of City of 25 N.Y., 436 U.S. 658, 690 (1978). A “custom” for purposes of municipal liability is a 26 “widespread practice that, although not authorized by written law or express 27 municipal policy, is so permanent and well-settled as to constitute a custom or usage 28 with the force of law.” Praprotnik, 485 U.S. at 127. Proof of random acts or isolated 20 3. – 18 – . 15-cv-2007 DMS (BGS) 1 events is insufficient to establish custom. Thompson v. City of L.A., 885 F.2d 1439, 2 1444 (9th Cir. 1989). But a plaintiff may prove “the existence of a custom or 3 informal policy with evidence of repeated constitutional violations for which the 4 errant municipal officials were not discharged or reprimanded.” Gillette, 979 F.2d 5 at 1348; see Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for 6 improper custom may not be predicated on isolated or sporadic incidents; it must be 7 founded upon practices of sufficient duration, frequency and consistency that the 8 conduct has become a traditional method of carrying out policy.”). Once such a 9 showing is made, a municipality may be liable for its custom “irrespective of 10 whether official policy-makers had actual knowledge of the practice at issue.” 11 Thompson, 885 F.2d at 1444. 12 In the TAC, Plaintiff appears to allege general customs of arrests without 13 probable cause, failure to conduct adequate investigations of police misconduct, 14 retaliation against individuals who complain against the City’s officers, and use of 15 unlawful excessive force against the public. The City contends Plaintiff cannot 16 establish the existence of the alleged customs based solely on a single occurrence. 17 The Court agrees. Plaintiff has failed to put forth any evidence that would lead a 18 reasonable jury to believe that the City has a custom of violating constitutional 19 rights.7 Instead, Plaintiff only presents evidence regarding a single incident in which 20 her constitutional rights were allegedly violated. Accordingly, the Court grants 21 summary judgment in favor of the City with respect to these allegations. 22 C. 23 Bane Act Claim In her third claim, Plaintiff alleges the officers’ conduct interfered with her 24 25 7 26 27 28 Moreover, Plaintiff’s allegation that the City has a custom of retaliating against citizens who complain against its officers is contradicted by her own testimony. Plaintiff initially alleged Officer Valentine retaliated against her for filing a complaint against him with the City’s police department. She later testified during deposition that she did not actually make the complaint. – 19 – . 15-cv-2007 DMS (BGS) 1 “right to be secured in her person and free from use of excessive force,” in violation 2 of California Civil Code § 52.1 (“Bane Act”). (TAC ¶ 23.) The Bane Act establishes 3 a private right of action for damages and other relief against a person who “interferes 4 by threats, intimidation, or coercion,” or attempts to so interfere, “with the exercise 5 or enjoyment” of an individual’s constitutional or other legal right. Cal. Civ. Code 6 § 52.1. “[T]he elements of the excessive force claim under § 52.1 are the same as 7 under § 1983.” Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013). 8 Both the City and the officers move for summary judgment on grounds that 9 the officers’ use of force was reasonable, and even if it were not, Plaintiff cannot 10 show a “separate intent or act of threat, intimindation, or coercion” independent from 11 those inherent in the alleged constitutional violation. (Officers’ Mem. of P. & A. in 12 Supp. of Mot. at 29.) First, as discussed above, there remains genuine disputes of 13 material fact that cannot be resolved on summary judgment as to whether Officers 14 Valentine and Knisley’s use of force was reasonable. 15 Defendants’ argument, Plaintiff need not show threats, intimidation, or coercion 16 independent from the coercion inherent in the use of force. See, e.g., Wynn v. S.D. 17 Cty., No. 12CV3070 BTM-NLS, 2015 WL 472552, at *11 (S.D. Cal. Feb. 5, 2015); 18 Lopez v. City of Imperial, No. 13-CV-00597-BAS WVG, 2015 WL 4077635, at *22 19 (S.D. Cal. July 2, 2015); Estate of Lopez ex rel. Lopez v. City of S.D., No. 13CV2240- 20 GPC-MDD, 2014 WL 7330874, at *15 (S.D. Cal. Dec. 18, 2014). Here, Plaintiff’s 21 Bane Act claim is premised on a violation of her Fourth Amendment right to be free 22 from excessive force. Because Plaintiff’s excessive force claim survives, so does 23 her Bane Act claim. See Lopez, 2015 WL 4077635, at *22. 24 Defendants’ motions for summary judgment on the Bane Act claim are denied. 25 D. Second, contrary to Accordingly, Negligence and Battery Claims 26 In her fourth and fifth claims, Plaintiff alleges the officers were negligent in 27 the manner in which they effected the arrest, and the amount of force used was 28 excessive and constituted a battery. Plaintiff claims she sustained injuries and – 20 – . 15-cv-2007 DMS (BGS) 1 damages as a result of the officers’ conduct. Both the state law claims for battery 2 and negligence depend on whether the officers acted with reasonable force. To 3 prevail on a claim for negligence, “Plaintiffs must show that the Defendant officers 4 acted unreasonably and that the unreasonable behavior harmed Plaintiffs.” Robinson 5 v. City of S.D., 954 F. Supp. 2d 1010, 1027 (S.D. Cal. 2013) (citation omitted). The 6 Fourth Amendment reasonableness standard applies to claims that officers were 7 negligent in using excessive force. See Young, 655 F.3d at 1170 (citing Munoz v. 8 City of Union City, 120 Cal. App. 4th 1077, 1108–09 (Cal. Ct. App. 2004)). 9 Similarly, to prevail on a claim for battery, a plaintiff must show “an officer used 10 unreasonable force against him to make a lawful arrest or detention.” Arpin v. Santa 11 Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001). A state law battery 12 claim is the equivalent of a federal claim of excessive force. Brown v. Ransweiler, 13 171 Cal. App. 4th 516, 527 (Cal. Ct. App. 2009). 14 The officers contend they are entitled to summary judgment on both claims, 15 arguing these claims fail for the same reasons as the excessive force claim. As 16 discussed, however, material factual disputes exist regarding the reasonableness of 17 Officers Valentine and Knisley’s use of force. “[T]he fact that [a p]laintiff’s § 1983 18 claims under the Fourth Amendment survive summary judgment also mandates that 19 the assault and battery claims similarly survive.” Nelson v. City of Davis, 709 F. 20 Supp. 2d 978, 992 (E.D. Cal. 2010). Therefore, Defendants are not entitled to 21 summary judgment on these claims. 22 The City moves for summary judgment on the negligence claim, arguing 23 California Government Code § 815(a) insulates it from liability for the officers’ 24 negligence. Section 815(a) provides, “A public entity is not liable for an injury, 25 whether such injury arises out of an act or omission of the public entity or a public 26 employee or any other person.” The City, however, ignores California Government 27 Code § 815.2, which clarifies that a public entity faces respondeat superior liability 28 for injuries caused by its employees, and is only immune from liability when the – 21 – . 15-cv-2007 DMS (BGS) 1 individual employee is also immune. Cal. Gov. Code § 815.2. Because California 2 denies immunity to police officers who use excessive force in arresting a suspect, 3 the City is also denied immunity. See Robinson v. Solano Cty., 278 F.3d 1007, 1016 4 (9th Cir. 2002); Blankenhorn, 485 F.3d at 488 (“[Section 815.2] clearly allows for 5 vicarious liability of a public entity when one of its police officers uses excessive 6 force in making an arrest.”). Accordingly, the City’s motion for summary judgment 7 on the negligence and battery claims is denied.8 8 E. Punitive Damages 9 Plaintiff alleges she is entitled to punitive damages against the officers 10 because they “acted with a conscious disregard of Plaintiff’s rights … by 11 intentional[ly] causing her injury … Such conduct constitutes malice, oppression[,] 12 and/or fraud under California Civil Code Section 3294[.]” (TAC ¶ 11; see id. ¶ 35.) 13 Punitive damages are recoverable in an action under 42 U.S.C. § 1983 “when the 14 defendant’s conduct is shown to be motivated by evil motive or intent, or when it 15 involves reckless or callous indifference to the federally protected rights of others.” 16 Smith v. Wade, 461 U.S. 30, 56 (1983). Under California law, punitive damages are 17 authorized if a plaintiff can show by clear and convincing evidence that a defendant 18 acted with oppression, fraud, or malice. Cal. Civ. Code § 3294(a). 19 The officers argue Plaintiff is not entitled to punitive damages because “there 20 is no evidence of malice, oppression or reckless disregard toward Plaintiff.” 21 (Officers’ Mem. of P. & A. in Supp. of Mot. at 31.) The Court disagrees because 22 there is sufficient evidence in the record to create a triable questions of fact regarding 23 whether Defendants engaged in oppressive, fraudulent, or malicious conduct. 24 Whether Plaintiffs are entitled to punitive damages against the individual officers is 25 a question for the jury. Accordingly, Defendants’ motion for summary judgment on 26 27 8 28 The City raises the same argument as the officers in moving for summary judgment on the battery claim. – 22 – . 15-cv-2007 DMS (BGS) 1 the issue of punitive damages is denied. 2 III. 3 CONCLUSION 4 For the foregoing reasons, Defendants’ motions for summary judgment are 5 granted in part and denied in part. Specifically, the City’s motion is granted as to 6 the Monell claim and denied as to the remaining claims. The individual Defendants’ 7 motion is (a) granted as to the unlawful arrest and the malicious prosecution claims, 8 and all claims against Officers Karches and Seapker, and (b) denied as to the 9 remaining claims. 10 11 At oral argument, the parties requested that certain pretrial deadlines be adjusted. Accordingly, the Court continues the following pretrial deadlines: 12 1. The deadline for the parties to file their Memoranda of Contentions of Fact 13 and Law and take any other action required by Local Rule 16.1(f)(2) is 14 continued to June 26, 2017; 15 2. The deadline for the parties to comply with the pre-trial disclosure 16 requirements of Federal Rule of Civil Procedure 26(a)(3) is continued to 17 June 26, 2017; 18 19 3. The deadline for counsel to meet and take the action required by Local Rule 16.1(f)(4) is continued to June 27, 2017; 20 4. The deadline for plaintiff’s counsel to provide defense counsel with the 21 proposed pretrial order for review and approval is continued to June 29, 22 2017; and 23 5. The Proposed Final Pretrial Conference Order, including objections to any 24 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be 25 prepared, served, and filed with this Court by June 30, 2017, and shall be 26 in the form prescribed in and comply with Local Rule 16.1(f)(6). 27 28 The final Pretrial Conference is continued to July 7, 2017 at 10:30 a.m. The trial is continued to July 31, 2017. – 23 – . 15-cv-2007 DMS (BGS) 1 2 IT IS SO ORDERED. Dated: June 16, 2017 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 24 – . 15-cv-2007 DMS (BGS)

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