Godinez v. Maleno Huerta et al

Filing 39

ORDER granting 23 Motion for Summary Judgment for Defendant Lopez; and granting in part Summary Judgment for Defendant Malena Huerta. The Court HEREBY ORDERS that: 1. Defendants' Motion for Summary Judgment (ECF No. 23) is GRANTED on behalf o f Deputy Lopez in its entirety and as to Count One with respect to Deputy Maleno. 2. Defendants' Motion for Summary Judgment (ECF No. 23) is DENIED on behalf of Deputy Maleno as to all remaining counts. 3. Deputy Lopez is HEREBY DISMISSED from the case. Signed by Judge Cynthia Bashant on 11/16/2017. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ALMA ROSA GODINEZ, Case No. 16-cv-0236 BAS-NLS Plaintiff, ORDER: v. (1) GRANTING SUMMARY JUDGMENT FOR DEFENDANT LOPEZ 13 JORGE MALENO HUERTA, et al., 14 Defendants. AND 15 (2) GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT FOR DEFENDANT MALENA HUERTA 16 17 18 [ECF No. 23] 19 20 Plaintiff Alma Godinez brings this §1983 action against Deputies Maleno 21 Huerta (“Maleno”) and Lopez alleging: (1) unlawful entry without a warrant, (2) 22 illegal search, (3) excessive force, (4) wrongful arrest, (5) wrongful detention, (6) 23 violations of California Civil Code §52.1 and (7) malicious prosecution. (ECF No. 24 1.) Defendants move for summary judgment arguing: (1) plaintiff is collaterally 25 estopped by findings at her preliminary hearing and probation revocation hearing; (2) 26 insufficient evidence supports any cause of action for excessive force; (3) Defendants 27 are entitled to qualified immunity; and (4) insufficient evidence supports any causes 28 of action against Deputy Lopez. (ECF No. 23 (Defendants’ Motion for Summary –1– 16cv236 1 Judgment (“MSJ”)).) Ms. Godinez has opposed Defendants’ motion. (ECF No. 25 2 (Response in Opposition to the MSJ (“Opp’n”)).) 3 For the reasons stated below, the Court agrees that there is insufficient 4 evidence to support Ms. Godinez’s claims against Deputy Lopez, and that both 5 officers are entitled to qualified immunity for the initial entry. The Court, however, 6 denies Defendants’ motion in all other respects as to Defendant Maleno. 7 I. STATEMENT OF FACTS 8 A. Deputy Maleno 9 On February 2, 2015, Deputy Maleno responded to a call at Ms. Godinez’s 10 home. (ECF No. 29 ¶2 (Joint Statement of Undisputed Facts (“JSUF”)).) Kevin 11 Thornton was outside the home and told Deputy Maleno that he lived at the home 12 with his girlfriend Ms. Godinez. (MSJ, Ex. A at 75:18–21, 75:23–76:12 (Excerpts 13 of Dep. Tr. of Deputy Maleno (“Maleno Dep.”)).) Mr. Thornton told Deputy Maleno 14 he had gotten into an argument with his girlfriend, Ms. Godinez, and that he needed 15 to retrieve his belongings from the residence. (MSJ, Ex. B at 45:6–8 (Excerpts of 16 Dep. Tr. of Angela Lopez (“Lopez Dep.”)).) Mr. Thornton said the keys to his truck, 17 which was parked outside the residence, were inside Ms. Godinez’s apartment and 18 he could not leave because Ms. Godinez had his truck keys. (MSJ, Ex. C ¶8 (Decl. 19 of Michael David Blaylock (“Blaylock Decl.”)).) 20 Deputy Maleno did nothing else to confirm that Mr. Thornton lived at the 21 house. (Maleno Dep. at 77:17–20.) And, in fact, during an earlier dispatch call, Mr. 22 Thornton had denied living with Ms. Godinez at this residence. (Opp’n, Ex. 13.)1 23 Mr. Thornton and Dep. Maleno knocked at the front door, yelling that deputies 24 were present and that Thornton only wanted to retrieve some belongings he had left 25 26 27 28 A neighbor, retired police officer Michael Blaylock, states that he too believed Mr. Thornton lived with Ms. Godinez at the residence. (Blaylock Decl. ¶¶2, 5.) However, Ms. Godinez denies living with Mr. Thornton and denies that he was ever her boyfriend, stating that he was only her employer, and that she had recently quit her job with him. (Godinez Decl. ¶2.) 1 –2– 16cv236 1 at the home, but no one responded. (Lopez Dep. at 50:4–9, 50:24–25.) Deputy 2 Maleno asked Mr. Thornton what he wanted to do next. Mr. Thornton asked if he 3 could force his way in, and Deputy Maleno said he could if that was in fact his 4 residence. (MSJ, Ex. D at 14:13–19 (Preliminary Hearing Transcript (“PH”)).) Mr. 5 Thornton went around back, and Deputy Maleno accompanied him to make sure 6 there were no arguments or physical violence. (Maleno Dep. at 76:16–18.) 7 Mr. Thornton forced his way into the residence with his shoulder. (Id. at 85:2– 8 3.) When Mr. Thornton forced in the door, Ms. Godinez, who was right behind the 9 door, was knocked to the ground. (Opp’n, Ex. 1 ¶9 (Decl. of Alma Godinez 10 (“Godinez Decl.”)).) Deputy Maleno followed Mr. Thornton into the residence. 11 What transpired next varies drastically depending upon whose testimony is found to 12 be credible. 13 Deputy Maleno testified that he initially saw Ms. Godinez on the floor with a 14 bat near her. He asked if she was okay, approached her and offered to help her up. 15 (Maleno Dep. at 85:11–15.) In response, she jumped to her feet, raised the bat up 16 and yelled “get out.” (Id. at 86:11–13.) She then got into a “fighting stance” with 17 the bat. (Id. at 90:16–18.) Deputy Maleno drew his Taser and demanded that she 18 drop the bat several times. (Id. at 19:13, 19:19-20.) Ms. Godinez started a swinging 19 motion with the bat and, in response, he fired his Taser. (Id. at 93:16–19.) The shock 20 of the Taser shocked her enough so that she dropped the bat, but was not effective at 21 penetrating her thick bathrobe so she did not drop to the ground the way he 22 commanded. (PH at 19:5–9.) Because she refused his command to get down on the 23 ground, he used his Taser again in “drive-stun mode” to get her to the ground so he 24 could handcuff her. (Maleno Dep. at 99:18–20.) 25 Ms. Godinez, on the other hand, states that after she was knocked to the floor 26 by the forced entry, she remained on the floor. She denies standing up or grabbing 27 the bat. (Godinez Decl. ¶10.) She states that she was “crab-walking” backwards 28 with her bottom on the floor when Deputy Maleno fired the Taser at her. (Id.) –3– 16cv236 1 Ms. Godinez was subsequently arrested and charged with (1) resisting or 2 obstruction a police officer under California Penal Code §148(a)(1), and (2) assault 3 on a peace officer with a deadly weapon, other than a firearm, by means likely to 4 produce great bodily injury, pursuant to California Penal Code §245(c). According 5 to Ms. Godinez, after her arrest, and while she sat in a patrol car outside her home, 6 she saw Deputy Maleno go in and out of her house several times without her consent. 7 (Godinez Decl. ¶18.) 8 B. Deputy Lopez 9 Deputy Lopez arrived on the scene after Deputy Maleno. (Lopez Dep. at 43:2– 10 3.) She overheard Mr. Thornton tell Deputy Maleno that he had gotten into an 11 argument with his girlfriend, and that he needed to get his stuff out of the residence 12 he shared with her. (Id. at 45:6–8.) Deputy Lopez stood with Deputy Maleno and 13 Mr. Thornton as they knocked at the front door and shouted out that they merely 14 wanted to retrieve belongings. 15 When Deputy Maleno and Mr. Thornton went around back, Deputy Lopez 16 waited by the front door until she heard Deputy Maleno yell, “Put the bat down” 17 several times. (Id. at 52:16–18.) Deputy Lopez then ran around to the back of the 18 house, but by the time she saw Ms. Godinez for the first time, Deputy Maleno had 19 already fired his Taser. (Id. at 57:7–8.) She did not witness any of the Tasing or the 20 events immediately leading up to the Tasing. (Id. at 59:23–24.) 21 Deputy Lopez assisted Deputy Maleno in handcuffing Ms. Godinez. (Id. at 22 60:8–12.) Deputy Lopez testified that Ms. Godinez was not cooperating. (Id.) Ms. 23 Godinez states that she did nothing to resist or fight the deputies. (Godinez Decl. 24 ¶10.) Ms. Godinez states that, in applying the handcuffs, “Deputy Lopez dug her 25 nails into my arms and roughly forced my arms behind my back, causing me a great 26 deal of pain.” (Id.) 27 C. Preliminary Hearing/Probation Revocation Hearing 28 Ms. Godinez was on probation for a previous conviction. (PH at 1:10–12.) –4– 16cv236 1 Therefore, the court jointly held a probation revocation hearing with the preliminary 2 hearing on her charges for assault on a peace officer and resisting. After the 3 evidentiary hearing, at which Ms. Godinez did not testify, the judge found there was 4 sufficient probable cause to bind Ms. Godinez over on the charges for trial, although 5 the judge repeatedly made reference to the fact that “this is a preliminary exam and 6 the standard is so low.” (Id. at 46:6–18.) The judge also revoked Ms. Godinez’s 7 probation based on the evidence presented, finding that Ms. Godinez had failed to 8 remain law-abiding “although not on a beyond-a-reasonable-doubt standard, 9 certainly.” (Id. at 52:27–28.) 10 At a later date, the District Attorney dismissed the charges against Ms. 11 Godinez and proceeded to sentencing only on the probation revocation. (MSJ, Ex. 12 F.) The court reinstated Ms. Godinez on probation on the same terms and conditions. 13 (Id. Exs. E, F.) 14 II. LEGAL STANDARD 15 Summary judgment is appropriate under Rule 56(c) where the moving party 16 demonstrates the absence of a genuine issue of material fact and entitlement to 17 judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 18 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, 19 it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 20 242, 248 (1986). A dispute about a material fact is genuine if “the evidence is such 21 that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 22 477 U.S. at 248. 23 A party seeking summary judgment always bears the initial burden of 24 establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 25 The moving party can satisfy this burden in two ways: (1) by presenting evidence 26 that negates an essential element of the nonmoving party’s case; or (2) by 27 demonstrating that the nonmoving party failed to make a showing sufficient to 28 establish an element essential to that party’s case on which that party will bear the –5– 16cv236 1 burden of proof at trial. Id. at 322–23. “Disputes over irrelevant or unnecessary facts 2 will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. 3 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). “The district court may limit 4 its review to the documents submitted for the purpose of summary judgment and 5 those parts of the record specifically referenced therein.” Carmen v. San Francisco 6 Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not 7 obligated “to scour the record in search of a genuine issue of triable fact. Kennan v. 8 Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. of 9 Am., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this 10 initial burden, summary judgment must be denied and the court need not consider the 11 nonmoving party’s evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-60 12 (1970). 13 If the moving party meets this initial burden, the nonmoving party cannot 14 defeat summary judgment merely by demonstrating “that there is some metaphysical 15 doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 16 Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 17 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of evidence in support 18 of the nonmoving party’s position is not sufficient.”) (citing Anderson, 477 U.S. at 19 242, 252). Rather, the nonmoving party must “go beyond the pleadings” and by “the 20 depositions, answers to interrogatories, and admissions on file,” designate “specific 21 facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 22 (quoting Fed. R. Civ. P. 56(e)). When making this determination, the court must 23 view all inferences drawn from the underlying facts in the light most favorable to the 24 nonmoving party. See Matsushita, 475 U.S. at 587. “Credibility determinations, the 25 weighing of the evidence, and the drawing of legitimate inferences from the facts are 26 jury functions, not those of a judge, [when] he [or she] is ruling on a motion for 27 summary judgment.” Anderson, 477 U.S. at 255. 28 –6– 16cv236 1 III. DISCUSSION 2 A. 3 Under California law, collateral estoppel or “issue preclusion” directs that “an 4 issue necessarily decided in a prior litigation may be conclusively determined as 5 against the parties . . . in a subsequent lawsuit on a different cause of action.” People 6 v. Quarterman, 202 Cal. App. 4th 1280, 1288 (Cal. Ct. App. 2012) (quotations 7 omitted). “Federal courts must give ‘preclusive effect to state-court judgments 8 whenever the courts of the State from which the judgments emerged would do so.’” 9 Wige v. City of Los Angeles, 713 F.3d 1183, 1185 (9th Cir. 2013) (quoting Allen v. 10 Collateral Estoppel under California Law McCurry, 449 U.S. 90, 96 (1980)). 11 In California, issue preclusion applies when: “(1) the issue sought to be 12 relitigated [is] identical to the issue decided in the earlier action, (2) the issue [is] 13 actually litigated and (3) necessarily decided in the earlier action, (4) the earlier 14 decision [was] final and made on the merits, and (5) the party against whom the issue 15 preclusion is asserted [was] a party to the earlier action.” Wige, 713 F.3d at 1185 16 (citing Lucido v. Superior Court, 51 Cal. 3d 335, 341 (Cal. 1990)). Even when these 17 threshold requirements have been met, however, “policy considerations” may limit 18 the use of issue preclusion when the “underpinnings of the doctrine are outweighed 19 by other factors.” Quarterman, 202 Cal. App. 4th at 1288. Thus, a court should first 20 consider whether the threshold considerations are met, and then analyze whether 21 public policy is served by applying the doctrine. Id. 22 Although, as a general rule, issue preclusion applies after a preliminary hearing 23 probable cause determination is made to bar a subsequent civil action for false arrest 24 and malicious prosecution, “issue preclusion should be denied ‘where the plaintiff 25 alleges that the arresting officer lied or fabricated evidence presented at the 26 preliminary hearing.’” Wige, 713 F.3d at 1186 (quoting McCutcheon v. City of 27 Montclair, 73 Cal. App. 4th 1138, 1146 (Cal. Ct. App. 1999)). If there are questions 28 of fact as to whether the officer lied or fabricated evidence, this generally cannot be –7– 16cv236 1 resolved on summary judgment by using the doctrine of issue preclusion. Id. 2 Defendants argue the Superior Court’s findings at the preliminary 3 hearing/probation revocation hearing preclude relitigating the issues pertaining to 4 Ms. Godinez’s arrest now in this §1983 action. However, with respect to the probable 5 cause determination made at the preliminary hearing, a material question of fact now 6 remains as to whether Deputy Maleno lied at the preliminary hearing. Because 7 plaintiff raises a legitimate question of fact on this issue and presents examples of 8 contradictory testimony supporting her claim, (Compare Opp’n at 6–7 with id. at 10– 9 11), the Court declines to grant summary judgment based on the Superior Court’s 10 determination of probable cause. 11 With respect to the findings resulting in the probation revocation, the Court 12 finds that the first threshold requirement has not been met. Although the Superior 13 Court found that Ms. Godinez had failed to remain law-abiding, (see PH 46:6–18), 14 the basis for this conclusion is not clear from the record. Nor does it preclude a 15 finding that the officers illegally entered, searched or used excessive force against 16 her. The second requirement for application of collateral estoppel has also not been 17 met. Ms. Godinez did not actually litigate the issues during the hearing. The hearing 18 was held before Ms. Godinez’s attorney had an opportunity to explore her allegations. 19 Facing serious criminal charges, Ms. Godinez exercised her Fifth Amendment right 20 not to testify at the preliminary hearing and relied on her counsel. Ultimately, the 21 criminal charges were dismissed and Ms. Godinez was simply reinstated on 22 probation. 23 To the extent all threshold requirements for application of issue preclusion 24 were to exist, the Court would nevertheless decline to hold that Ms. Godinez is 25 collaterally estopped from raising her claims under the circumstances of this case. 26 Ms. Godinez now alleges that Deputy Maleno lied or fabricated evidence at the 27 hearing underlying the judge’s probable cause determination. “Preservation of the 28 integrity of the judicial system”, a “fundamental principle” underlying the doctrine –8– 16cv236 1 of collateral estoppel, see Quarterman, 202 Cal. App. 4th at 1288, cannot be 2 advanced in the face of such allegations. See also Lucido, 51 Cal. 3d at 343, 350. 3 B. Lack of Excessive Force 4 Defendants move for summary judgment on the excessive force cause of action 5 arguing Deputy Maleno’s “limited use of force was reasonable to end the immediate 6 threat of injury.” (MSJ at 10.) “Determining whether the force used to effect a 7 particular seizure is reasonable under the Fourth Amendment requires a careful 8 balancing of the nature and quality of the intrusion on the individual’s Fourth 9 Amendment interests against the countervailing governmental interests at stake.” 10 Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and citation 11 omitted). A court must first consider the nature and quality of the intrusion, 12 evaluating the type and amount of force inflicted. Mattos v. Agarano, 661 F.3d 433, 13 441 (9th Cir. 2011) (citing Deorle v. Rutherford, 272 F.3d 1272, 1279–80 (9th Cir. 14 2001)); Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994). Next, the court must 15 determine the government’s interest at stake in the use of force, weighing factors 16 “including the severity of the crime at issue, whether the suspect poses an immediate 17 threat to the safety of the officers or others, and whether he is actively resisting arrest 18 or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see also Mattos, 19 661 F.3d at 441 (citing Deorle, 272 F.3d at 1279–80). “These factors, however, are 20 not exclusive. Rather, [courts should] examine the totality of the circumstances and 21 consider ‘whatever specific factors may be appropriate in a particular case, whether 22 or not listed in Graham.’” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) 23 (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). 24 The reasonableness of a particular use of force requires taking the “perspective 25 of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 26 Graham, 490 U.S. at 396. “The right to make an arrest carries with it the right to 27 employ some level of force to effect it.” Bryan, 630 F.3d at 818 (citing Graham, 490 28 U.S. at 396). Thus, a “court must consider that the officer may be reacting to a –9– 16cv236 1 dynamic and evolving situation, requiring the officer to make split-second 2 decisions.” Id. (citing Graham, 490 U.S. at 396-97). “[A]n officer need not have 3 perfect judgment, nor must he resort only to the least amount of force necessary to 4 accomplish legitimate law enforcement objectives.” Id. 5 Because the excessive force inquiry ordinarily “requires a jury to sift through 6 disputed factual contentions, and to draw inferences therefrom,” the Ninth Circuit 7 has emphasized that “summary judgment . . . in excessive force cases should be 8 granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (citing 9 Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)); see also Torres v. City of 10 Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (“Where the objective reasonableness 11 of an officer’s conduct turns on disputed issues of material fact, it is a question of 12 fact best resolved by a jury.”). That is particularly true in a case such as this one 13 where the issues of fact are very much in dispute. If, in fact, Deputy Maleno used 14 his Taser in response to Ms. Godinez’s swinging a bat at him, then his arguments 15 might have merit. His counsel ignores, however, that there are facts presented that 16 contradict this version of the events. (See Opp’n at 6–7.) Because a material issue 17 of fact remains, the reasonableness of his use of force against Ms. Godinez must be 18 determined by a jury. 19 C. Qualified Immunity 20 “The doctrine of qualified immunity protects government officials ‘from 21 liability for civil damages insofar as their conduct does not violate clearly established 22 statutory or constitutional rights of which a reasonable person would have known.’” 23 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 24 U.S. 800, 818 (1982)). Qualified immunity shields an officer from liability even if 25 his or her action resulted from “‘a mistake of law, a mistake of fact, or a mistake 26 based on mixed questions of law and fact.’” Id. (quoting Groh v. Ramirez, 540 U.S. 27 551, 567 (2004)). The purpose of qualified immunity is to strike a balance between 28 the competing “need to hold public officials accountable when they exercise power – 10 – 16cv236 1 irresponsibly and the need to shield officials from harassment, distraction, and 2 liability when they perform their duties reasonably.” Id. 3 “Determining whether officials are owed qualified immunity involves two 4 inquiries: (1) whether, taken in the light most favorable to the party asserting the 5 injury, the facts alleged show the official’s conduct violated a constitutional right; 6 and (2) if so, whether the right was clearly established in light of the specific context 7 of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. 8 Katz, 533 U.S. 194, 201 (2001)). The Supreme Court has instructed that courts may 9 exercise “sound discretion in deciding which of the two prongs of the qualified 10 immunity analysis should be addressed first.” Pearson, 555 U.S. at 236. If facts 11 necessary to decide the issue of qualified immunity are in dispute, then summary 12 judgment granting qualified immunity is not proper. LaLonde v. Cty. of Riverside, 13 204 F.3d 947, 953–54 (9th Cir. 2000). 14 For the second step in the qualified immunity analysis—whether the 15 constitutional right was clearly established at the time of the conduct—courts ask 16 whether its contours were “‘sufficiently clear’ that every ‘reasonable official would 17 have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 18 U.S.731, 739 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 19 While a case directly on point is not required, “existing precedent must have placed 20 the statutory or constitutional question beyond debate.” Id. The Supreme Court has 21 made “clear that officials can still be on notice that their conduct violates established 22 law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). 23 Courts “are particularly mindful of this principle in the context of Fourth Amendment 24 cases, where the constitutional standard—reasonableness—is always a very fact- 25 specific inquiry.” Mattos, 661 F.3d at 442. “If qualified immunity provided a shield 26 in all novel factual circumstances, officials would rarely, if ever, be held accountable 27 for their unreasonable violations of the Fourth Amendment.” Id.; see also Deorle, 28 272 F.3d at 1286 (“Otherwise, officers would escape responsibility for the most – 11 – 16cv236 1 egregious forms of conduct simply because there was no case on all fours prohibiting 2 that particular manifestation of unconstitutional conduct.”). 3 Courts should be “careful, however, to apply the clearly established rule in 4 such a way that faithfully guards the need to protect officials who are required to 5 exercise their discretion and the related public interest in encouraging the vigorous 6 exercise of official authority.” Id. (citing Harlow, 457 U.S. at 807 (internal quotation 7 marks and citations omitted)). Courts “must also allow ‘for the fact that police 8 officers are often forced to make split-second judgments—in circumstances that are 9 tense, uncertain, and rapidly evolving—about the amount of force that is necessary 10 in a particular situation.’” Id. (quoting Graham, 490 U.S. at 396–97). While “in an 11 obvious case, [the Graham standards for excessive force] can clearly establish the 12 answer, even without a body of relevant case law,” the “bar for finding such 13 obviousness is quite high.” Id. (citing Brosseau v. Haugen, 543 U.S. 194, 199 14 (2004)). In al-Kidd, the Supreme Court emphasized that it has “repeatedly told courts 15 not to define clearly established law at a high level of generality.” Id. (quoting al- 16 Kidd, 563 U.S. at 741). 17 1. Count One: Unlawful Entry without a Warrant 18 An officer may enter property without a warrant if he has the consent of the 19 resident or if he believes there is an emergency at hand and his entry is necessary for 20 protection of life or property. Illinois v. Rodriguez, 497 U.S. 177 (1990) (consent of 21 co-occupant); United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) 22 (emergency exception). For the former to apply, the police must obtain the voluntary 23 consent of an occupant who shares, or is reasonably believed to share, authority over 24 the residence. Rodiguez, 497 U.S. at 186. For the emergency exception to apply, (1) 25 the police must have reasonable grounds to believe there is an emergency at hand and 26 an immediate need for their assistance for protection life or property, (2) entrance 27 must not primarily be motivated by intent to arrest and seize evidence, and (3) the 28 police officer must have a reasonable basis to associate the emergency with the area – 12 – 16cv236 1 or place entered or searched. Martinez, 406 F.3d at 1164. 2 At the time Deputy Maleno entered the property, he was told by Mr. Thornton 3 that Mr. Thornton shared the residence with Ms. Godinez. (Maleno Dep. at 75:18– 4 21.) Furthermore, Mr. Thornton had indisputably knocked Ms. Godinez to the 5 ground after forcing his way inside the residence. (Godinez Decl. ¶9; Maleno Dep. 6 at 85:11–15.) Under the emergency exception, Deputy Maleno was entitled to enter 7 the residence without a warrant to determine whether Ms. Godinez required 8 assistance. To the extent Deputy Maleno was already on the property at the time he 9 realized Ms. Godinez had been knocked to the ground, he reasonably believed that 10 he had permission from Mr. Thornton to be there. There is no evidence to support 11 Ms. Godinez’s theory that Deputy Maleno was primarily motivated by an intent to 12 arrest her or search the property. 13 Therefore, the Court finds that at the time Deputy Maleno first entered the 14 house, an unconstitutional warrantless entry into the residence did not occur. Ms. 15 Godinez argues that Deputy Maleno should have done more to confirm that Mr. 16 Thornton actually lived at the house and should not have allowed Mr. Thornton to 17 force his way in without more proof about whether Mr. Thornton in fact resided at 18 the residence or otherwise had permission to enter. However, when Deputy Maleno 19 arrived at the scene, the undisputed evidence shows that Mr. Thornton told Deputy 20 Maleno that he needed to retrieve his belongings including keys for his truck parked 21 outside the residence. (Blaylock Decl. ¶8; Lopez Dep. at 45:6–8.) This statement 22 was confirmed for the Deputy Maleno when Mr. Thornton knocked on the front door 23 with the Deputy Maleno and yelled out that he just wanted to retrieve his belongings. 24 (Lopez Dep. at 50:4–9, 50:24–25.) A neighbor similarly believed that Mr. Thornton 25 was living with Ms. Godinez. (Blaylock Decl. ¶¶2, 5.) Even if the deputies violated 26 a constitutional right, under the facts of this case, it was not sufficiently clear that a 27 reasonable official would have understood that what he was doing violated that right. 28 The officers responded to a potential domestic violence situation. They were there – 13 – 16cv236 1 to help Mr. Thornton retrieve his belongings without violence. Deputy Maleno told 2 Mr. Thornton he could only force his way in if he lived there. In light of all the facts 3 of the case, the Court finds that qualified immunity protects Deputy Maleno from 4 liability for the initial warrantless entry. 2. 5 Remaining Counts 6 However, Ms. Godinez then states that Deputy Maleno fired a Taser at her, 7 while she was unarmed and trying to get away from him. (Godinez Decl. ¶10.) She 8 claims that he manufactured evidence against her to arrest her and cover up his 9 unlawful use of the Taser. (Opp’n at 13–16.) And she claims that she saw him going 10 in and out of her house searching the house after she was arrested. (Godinez Decl. 11 ¶18.) Taking these facts in the light most favorable to Ms. Godinez, as the Court 12 must do on summary judgment, Ms. Godinez has shown at this stage of the 13 proceedings a constitutional violation that would have been clear to any reasonable 14 officer. As the Ninth Circuit stated in Gravelet-Blondin, the “right to be free from 15 the application of non-trivial force for engaging in mere passive resistance was clear 16 prior to 2008.” Gravelet-Blondin, 728 F.3d at 1093 (citing Nelson, 685 F.3d at 881); 17 see also Cordeiro v. United States, No. 11-00413 JMS, 2013 WL 5514504, at *12 18 (D. Haw. Oct. 3, 2013) (summarizing case law). Thus, assuming Ms. Godinez’s 19 version of the events is correct, she was at most passively resisting Deputy Maleno’s 20 command to lie flat on the ground at the time he fired a Taser at her. This is not 21 conduct that is entitled to qualified immunity. 22 D. Deputy Lopez 23 Defendants argue that insufficient facts support any liability for Deputy Lopez. 24 The Court agrees. It is undisputed that Deputy Lopez did not enter the house until 25 after the incident occurred. At the time Mr. Thornton was forcing his way into the 26 house, Deputy Lopez was in the front of the house. (Lopez Dep. at 52:16–18.) There 27 are no facts supporting any claim that she forced entry or searched the premises. 28 Furthermore, Deputy Lopez was not present when Deputy Maleno fired his Taser, – 14 – 16cv236 1 so, to the extent she participated in the detention and arrest, her conduct was based 2 on representations by Deputy Maleno that he had acted in self-defense and that Ms. 3 Godinez had attempted to hit him with a bat. The evidence shows that any illegal 4 entry after Deputy Maleno’s use of a Taser, wrongful arrest, wrongful detention or 5 malicious prosecution was based on actions by Deputy Maleno, not Deputy Lopez. 6 Finally, Ms. Godinez alleges that Deputy Lopez used excessive force during 7 her arrest because while applying handcuffs, “Deputy Lopez dug her nails into my 8 arms and roughly forced my arms behind my back, causing me a great deal of pain.” 9 (Godinez Decl. ¶10.) “When determining whether the force was excessive, courts 10 look to the ‘extent of the injury . . . the need for application of force, the relationship 11 between that need and the amount of force used, the threat reasonably perceived by 12 the responsible officials and any efforts made to temper the severity of a forceful 13 response.’” Smith v. Sergent, No. 12:15-cv-0979 GEB DB P, 2017 WL 4284659, at 14 *3 (E.D. Cal. Sept. 27, 2017) (quoting Hudson v. McMillan, 503 U.S. 1, 7 (1992)). 15 In this case, Ms. Godinez does not allege any permanent injury. She simply 16 claims that Deputy Lopez was rough and dug her nails into her arms when attempting 17 to handcuff her. Just before Deputy Lopez entered the residence and handcuffed Ms. 18 Godinez, Deputy Lopez heard Deputy Maleno tell Ms. Godinez to drop the bat. Even 19 assuming Ms. Godinez’s statements are all true, and she was not resisting at the time 20 Deputy Lopez was actually applying the handcuffs, Deputy Lopez reasonably 21 perceived that Ms. Godinez was a threat. In light of these facts, the force used by 22 Deputy Lopez was not unconstitutionally excessive. To the extent the information 23 Deputy Lopez received was incorrect, the force she used in handcuffing Ms. Godinez 24 did not violate a clearly established constitutional or statutory right, and, therefore, 25 Deputy Lopez is entitled to qualified immunity for her conduct. 26 IV. CONCLUSION & ORDER 27 In light of the foregoing, the Court HEREBY ORDERS that: 28 1. Defendants’ Motion for Summary Judgment (ECF No. 23) is – 15 – 16cv236 1 GRANTED on behalf of Deputy Lopez in its entirety and as to Count One with 2 respect to Deputy Maleno. 3 4 2. Defendants’ Motion for Summary Judgment (ECF No. 23) is DENIED on behalf of Deputy Maleno as to all remaining counts. 5 3. 6 IT IS SO ORDERED. 7 Deputy Lopez is HEREBY DISMISSED from the case. DATED: November 16, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 16 – 16cv236

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