Opinion
No. 1:05-CV-01056 OWW LJO.
November 3, 2006
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
1. INTRODUCTION
Plaintiff Jose Trinidad Lara Urbina ("Urbina" or "Plaintiff") filed a complaint against Defendants for their alleged use of excessive force during the course of arresting him. (Doc. 1, Complaint ¶ 10, Filed August 18, 2005.) Before the court is Defendants' Kern County, Kern County Sheriff's Department, and Kern Sheriff Mack Wimbish ("Kern Defendants") motion for summary judgment on Urbina's claims. (Doc. 35, Motion for Summary Judgment, Filed September 29, 2006.) Urbina does not oppose the motion. (Doc. 38, Statement of Non Opposition, Filed October 24, 2006.)
2. PROCEDURAL BACKGROUND
Urbina filed his complaint on August 18, 2005. (Doc. 1, Complaint.) Kern Defendants filed their answer on September 27, 2005. (Doc. 2, Answer.) On September 29, 2006 Kern Defendants filed a Motion for Summary Judgment. (Doc. 35, Motion for Summary Judgment.) On October 24, 2006 Urbina filed a statement of non opposition. (Doc. 38, Statement of Non Opposition.)
3. FACTUAL BACKGROUND
All facts are undisputed by Plaintiff.
A. Background Facts
On August 15, 2003, Kern County Sheriff's Deputy George Vargas (Vargas) witnessed plaintiff cross a road and enter onto an orchard road. (Depo of SD Vargas, pg.19, ln. 11 to pg. 20, ln. 25, Exhibit C.) The manager of the orchard had previously requested that Vargas prevent unauthorized entry by those persons who did not have legitimate business in the orchard. (Depo of SD Vargas, pg. 9, llns. 7-14, Exhibit C.) Vargas additionally realized that plaintiff was a person with whom he had attempted to speak approximately one week prior to this incident, however, plaintiff had eluded him on the prior occasion. (Depo of SD Vargas, pg. 8, ln. 21 to pg. 9, ln. 6, Exhibit C.) (Depo of SD Vargas, pg. 21, llns. 1-3 Exhibit C.)
Vargas is not, and has not, been named as a defendant in this litigation.
On August 15, 2003, Vargas addressed plaintiff but plaintiff fled, initially on his bicycle but later abandoned the bicycle to run, on foot, through the orchards. (Depo of SD Vargas, pg. 21, ln. 7 to pg. 22, ln. 24, Exhibit C.) Vargas requested assistance. Sheriff's Department Deputies ("Deputies") and Police Officers ("Officers") from the City of Shafter ("Shafter") responded and set up a perimeter to contain plaintiff (Depo of SD Acebedo, pg.17, llns. 4-18, Exhibit B). Kern County Deputy J.L. Acebedo ("Acebedo") set up a perimeter position on Burbank Street on the south side of the orchard into which plaintiff had fled (Depo of Acebedo, pg.18, llns. 4-10, Exhibit B).
Acebedo received a radio transmission from Vargas stating that Officer Jackson was in pursuit of plaintiff in the orchard (Depo of SD Acebedo, pg.18, llns. 17-23, Exhibit B). Acebedo then noticed a police vehicle pass his location at a high rate of speed and he believed that the vehicle was operated by Officer English, whom plaintiff refers to as "the big guy" in his deposition. (Depo of SD Acebedo, pg.19, llns. 3-17, Exhibit B.) Acebedo then left his perimeter position and followed the police vehicle. (Depo of SD Acebedo, pg.19, ln. 3 to pg.21, ln.3, Exhibit B.) During a portion of the time while he was driving, Acebedo could see Jackson chasing plaintiff in the orchard. (Depo of SD Acebedo, pg. 21, llns. 15-23, Exhibit B.) (Depo of SD Acebedo, pg. 22, ln. 24 to pg. 23, ln. 15, Exhibit B.) Acebedo witnessed English pull his car on to a dirt road and then exit his vehicle. Acebedo stopped his vehicle, exited it, and began to run toward the location where he believed plaintiff was running. (Depo of SD Acebedo, pg. 21, ln. 7 to pg. 23, ln. 18, Exhibit B.)
Acebedo first witnessed plaintiff from about 30 to 40 yards away. (Depo of SD Acebedo, pg. 23, llns. 19-21, Exhibit B.) When Acebedo first witnessed plaintiff, plaintiff was face down on the ground and in physical contact with Jackson. (Depo of SD Acebedo, pg. 23, ln. 22 to pg. 24, ln. 1, Exhibit B.) (Depo of SD Acebedo, pg. 25, llns. 19-22, Exhibit B.) Jackson had one handcuff on plaintiff but plaintiff was passively resisting the placement of the second cuff. (Depo of SD Acebedo, pg. 26, llns. 2-15, Exhibit B.) Jackson was able to place plaintiff in handcuffs. (Depo of SD Acebedo, pg. 29, ln. 25 to pg. 30, ln. 1, Exhibit B.) Acebedo and another officer picked plaintiff off the ground and walked him to a patrol car. (Depo of SD Acebedo, pg. 34, ln. 9 to pg. 35, ln. 2, Exhibit B.) Vargas searched plaintiff and then transported him from the scene. (Depo of SD Acebedo, pg. 37, ln. 23 to pg. 38, ln. 12, Exhibit B.)
B. Undisputed Facts
Urbina was arrested on August 15, 2003 and contends that he was struck during his arrest. (DSUF, No. 9 and No. 12) He now brings a 42 U.S.C. § 1983 claim alleging that during his arrest Acebedo used excessive force based on a policy and practice by the Kern Sheriff's department of "hurt a man . . . charge a man." (Doc. 1, Complaint, ¶ 11.) According to Urbina, under this policy, if an officer believes he has wrongly hurt a person, the officer will seek to secure the filing of a criminal charge against the arrestee. ( Id.) Urbina claims that the officers who arrested him sought filing of criminal charges in the belief that a conviction will prevent him from suing for his injuries wrongfully inflicted by the officer. ( Id.) Lastly, Urbina argues that such a policy condones the use of excessive force.
Acebedo has been dismissed from this action without prejudice. (DSUF, No. 1; Doc. 35, Mot. for Summary Judgment.) Acebedo arrived at the scene of the arrest after Plaintiff was detained but while he was struggling to avoid being handcuffed. (DSUF, No. 11) Acebedo was wearing a tan Kern Sheriff's Department uniform. (DSUF, No. 16) Acebedo was the only Kern County or Department employee at the location of plaintiff's arrest. (DSUF, No. 10) Acebedo did not use excessive force on plaintiff. (DSUF, No. 17) Further, no Kern County Department employee used excessive force on plaintiff. (DSUF, No. 18) Sheriff Wimbish was not physically present at the scene on August 15, 2003. (DSUF, No. 20) Sheriff Wimbish did not provide any instruction to deputies at the scene on August 15, 2003. (DSUF, No. 21) Sheriff Wimbish was not aware of plaintiff's arrest until after the Complaint was served. (DSUF, No. 22) County Defendants do not have any policy, procedure or custom of "hurt a man — charge a man." (DSUF, No. 7) County Defendants do not condone or allow any policy, procedure or custom of "hurt a man — charge a man." (DSUF, No. 8)
In his deposition Urbina identifies "the tall officer" as the first one to touch him and who allegedly struck him during his arrest. (DSUF, No. 13) The "tall officer" was wearing street clothes (DSUF, No. 14) Officer Jackson with the Shafter police, handcuffed plaintiff. (DSUF, No. 15) The City of Shafter and its peace officers are not the agents, servants or employees of the County or Department. (DSUF, No. 19)
4. STANDARD OF REVIEW
A. General Summary Judgment StandardSummary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Anderson, 477 U.S. at 248).
The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1996). Nevertheless, the evidence must be viewed in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. A court's role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir. 1996).
B. Summary Judgment in a Qualified Immunity Case
Qualified immunity entails a two-step analysis. First, a court must ask whether a constitutional violation occurred at all. If the answer to this question is yes, the court must then inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that the defendant's actions were lawful. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
The traditional summary judgment approach should be used in analyzing the first step of the Saucier analysis:
A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury.Wall v. County of Orange, 364 F.3d 1107, 1110-1111 (9th Cir. 2004) (internal citations and quotations omitted). In the second step, the court must ask whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted. Although this inquiry is primarily a legal one, where the reasonableness of the officer's belief that his conduct was lawful "depends on the resolution of disputed issues of fact . . . summary judgment is not appropriate." Wilkins v. City of Oakland, 364 F.3d 949, 1110-11 (9th. Cir. 2003) (citing Saucier, 533 U.S. at 216 (Ginsburg J., concurring)).
5. DISCUSSION
A. Civil Rights Claims Under 42 U.S.C. section 1983
"Section 1983 provides for liability against any person acting under color of law who deprives another `of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). "The rights guaranteed by section 1983 are `liberally and beneficently construed.'" Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991). Pursuant to 42 U.S.C. § 1983, Plaintiff may bring a civil action for deprivation of rights under the following circumstances:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
B. Official Capacity and Individual Capacity Suits
"1983 claims against government officials in their official capacities are really suits against the governmental employer because the employer must pay any damages awarded." Butler v. Elle, 281 F.3d 1014, 1023 (9th Cir. 2002) (citing Ky. v. Graham, 473 U.S. 159, 165-66 (1985)); see also Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (finding that "a suit against a state official in his official capacity is no different from a suit against the [official's office or the] State itself") (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989). In such suits, the real party in interest is the entity for which the official works. Hafer v. Melo, 502 U.S. 21, 25 (1991). A federal action for monetary damages against an individual state official acting in his official capacity is barred by the Eleventh Amendment in the same way that an action against a State is barred. Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997). "As the Supreme Court has stated, `official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 524 n. 3 (9th Cir. 1999) (quoting Graham, 473 U.S. at 165). "`As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.'" Ruvalcaba, 167 F.3d at 524 n. 3 (quoting Graham, 473 U.S. at 166.)
By contrast, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions [taken] under color of state law." Dittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999) ( citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)) (internal quotations omitted). To establish personal liability in a § 1983 or § 1985 action, it is enough to show that the official, "acting under color of state law, caused the deprivation of a federal right." Hafer, 502 U.S. at 25 (internal quotations omitted). Public officials sued in their personal capacity may assert personal liability defenses, such as qualified immunity. Dittman, 191 F.3d at 1027.
Plaintiff appears to be suing Sheriff Wimbash only in his official capacity. Plaintiff names Sheriff Wimbash as a Defendant in this case even though there is nothing in the record to indicate that he was present during Plaintiff's arrest on August 15, 2003.
C. Fourth Amendment
Under the Fourth Amendment the right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV.; Menotti v. City of Seattle, 409 F. 3d 1113, 1152 (9th Cir. 2005). The Supreme Court has held that "in the ordinary case, seizures of personal property are unreasonable within the meaning of the Fourth Amendment, without more, unless accomplished pursuant to a judicial warrant issued by a neutral and detached magistrate after finding probable cause. Id. However, when faced with special law enforcement needs, the Supreme Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. Id.
The initial question under Saucier is whether there was any type or amount of force inflicted by Kern Defendants on Urbina during his arrest on August 15, 2003.
It is undisputed that Sheriff Wimbish was not present during Urbina's arrest. Sheriff Wimbish did not provide any instruction to deputies at the scene on August 15, 2003. Sheriff Wimbish was not aware of plaintiff's arrest until after the Complaint was served. Sheriff Wimbash, therefore, could not have inflicted excessive force on Plaintiff or have ratified it.
Defendants motion for summary judgment as to Sheriff Wimbash is GRANTED. D. The Monell Doctrine
Local governments are "persons" subject to suit for "constitutional tort[s]" under 42 U.S.C. § 1983. Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55 (1978)) (also finding the fact that "local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are "persons" under § 1983 in those cases in which, as here, a local government would be suable in its own name"). "[T]he legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies." Id. at 690. "Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers . . . [or for] deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision making channels." Id. 690-91.
Although Monell dealt with a municipal government's liability under § 1983, the standard there announced was more broadly framed in terms of "a local government." Brass v. County of L.A., 328 F.3d 1192, 1198 (9th Cir. 2003).
"There is certainly no constitutional impediment to municipal liability. `The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.'" Monell, 436 U.S. 691 (quoting Milliken v. Bradley, 433 U.S. 267, 291 (1977)). There is no "basis for concluding that the Eleventh Amendment is a bar to municipal liability." Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Lincoln County v. Luning, 133 U.S. 529, 530 (1890)).
In Brass v. County of Los Angeles, the Ninth Circuit followed evolution of municipal liability from Monroe to Monell:
In Monroe v. Pape, 365 U.S. 167 (1961), the Supreme Court held that municipal corporations were not subject to liability under § 1983. In Monell, 436 U.S. at 665, the Court, based upon its "fresh" review of the legislative history of the Civil Rights Act of 1871 (the statutory predecessor to § 1983), "overrule[d] Monroe v. Pape . . . insofar as it holds that local governments are wholly immune from suit under § 1983." Id. at 663 (footnote omitted). The Court, however, upheld Monroe "insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees." Id. at 663 n. 7. It stated that "the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691.328 F.3d at 1198.
A local government's liability is limited. Although a local government can be held liable for its official policies or customs, it will not be held liable for an employee's actions outside of the scope of these policies or customs. "[T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, . . . a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691. The statute's "language plainly imposes liability on a government that, under color of some official policy, [that] `causes' an employee to violate another's constitutional rights." Id. at 692. Therefore, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its law-makers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
Plaintiff does not dispute that Acebedo was the only Kern County or Department employee at the location of plaintiff's arrest. Acebedo arrived at the scene of the arrest after Plaintiff was detained but while he was struggling to avoid being handcuffed. Acebedo was wearing a tan Kern Sheriff's Department uniform. Plaintiff also concedes that Acebedo did not use excessive force on plaintiff. Further, Acebedo has been dismissed from this action without prejudice.
Plaintiff also does not dispute that no Kern County Department employee used excessive force on plaintiff. Sheriff Wimbish was not physically present at the scene nor did he provide instruction to any deputies at the scene of the arrest. Plaintiff fails to dispute that Kern County Defendants do not have any policy, procedure or custom of "hurt a man — charge a man." Plaintiff concedes that County Defendants would not condone or allow any policy, procedure or custom of "hurt a man — charge a man." Lastly, the City of Shafter employees identified by Plaintiff as those who conducted the arrest are not employed by nor are they agents, servants or employees of the Kern County or Department.
Defendants motion for summary judgment on the civil rights claim as to Kern County and Kern County Sheriff's Department is GRANTED.
E. State Law Claims
i. Supplemental Jurisdiction
Title 28 U.S.C. section 1367(a) provides in pertinent part:
"In any civil action of which the district courts have original jurisdiction, the district court shall have supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."
Plaintiff alleges a § 1983 claim for Fourth Amendment violations. Plaintiff's state law claims invoke supplemental jurisdiction and arise from the same controversy as his § 1983 claim.
ii. California Tort Claims Act
In California, a person making a claim against a public entity or a public employee must present such a claim in writing to the clerk, auditor or secretary of the local public entity within six months after the accrual of the cause of action. Cal. Gov. Code § 911.2.; see also Javor v. Taggart, 98 Cal. App. 4th 795, 804 (Cal.Ct.App. 2002) (submission of a claim to a public entity pursuant to the California Tort Claims Act is a condition precedent to a civil action against the state or its employees and failure to present the claim bars the action.) A person may not maintain a cause of action against a public entity or public employee without having first presented a claim as required by California Statute. Cal. Gov. Code 945.4. Cal. Gov. Code section 954.6 requires that a claimant file a civil action within six months after the public agency issues its decision. Javor, 98 Cal. App. 4th at 804.
iii. California Constitution, Article 1 § 7
Article I, § 7 of the California Constitution provides: "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws."
Plaintiff's claims involve allegations of excessive force. However, it is undisputed that Kern Defendants did not use excessive force on Plaintiff during his arrest. It is also undisputed that there is no policy of "hurt a man . . . charge a man" implemented by Kern County or Kern County Sheriff's Department. It is undisputed that Kern Defendants did not deprive Plaintiff of his constitutional rights under Article 1 § 7 of the California Constitution.
Summary judgment is GRANTED. iv. California Constitution, Article 1 § 13
Article I, § 13 of the California Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized."
Plaintiff does not make an unreasonable search and seizure claim against the Kern County Defendants in his complaint. Further, it is undisputed that Kern County Defendants did not deprive Plaintiff of his constitutional rights under Article 1 § 7 of the California Constitution.
Summary judgment on the state constitution claims is GRANTED as to the moving defendants.
v. California Government Code § 815.2
California Government Code § 815.2 provides:
(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omissions would, apart from this section have given rise to a cause of action against that employee or his personal representative.
(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.
The undisputed facts show that there was no injury caused to Plaintiff by Kern County, Kern County Sheriff's Department, or Sheriff Wimbish. Acebedo, the only Kern County employee present during Plaintiff's arrest, had no physical contact with Plaintiff and has been dismissed from this case without prejudice. There are no facts to indicate any liability under California Government Code § 815.2.
Summary Judgment is GRANTED as to the claims under Cal.Gov. Code § 815.2.
6. CONCLUSION
Defendants' motion for summary judgment as to Sheriff Wimbash is GRANTED.
Defendants' motion for summary judgment as to Kern County and Kern County Sheriff's Department is GRANTED.
Said Defendants' motion for summary judgment of Plaintiff's claim under The Constitution of the State of California, Article 1 § 7 is GRANTED.
Said Defendants' motion for summary judgment of Plaintiff's claim under The Constitution of the State of California, Article 1 § 13 is GRANTED.
Said Defendants' motion for summary judgment of Plaintiff's California Government Code § 815.2 claim is GRANTED.
IT IS SO ORDERED.