CIV. NO. 1:13-425 WBS
MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiff Adam Todd Saetrum filed this action under 42 U.S.C. § 1983 based on alleged excessive force and inadequate medical care during his arrest and detention in Ada County, Idaho. Defendants now move for summary judgment on all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 56.
I. Factual and Procedural Background
On February 26, 2013, undercover officer Matt Schneider arranged to purchase marijuana from plaintiff in the parking lot of the Boise Town Square Mall. Defendant Sergeant Jason Vogt led the Action Team that was assembled to arrest plaintiff after the controlled buy, and defendant Deputy Tyler Stenger was a member of that team. Defendant Sergeant Steve Robinson led the Narcotics Unit for the controlled buy, and defendant Detective Kevin Louwsma was a member of that unit.
When Officer Schneider first saw plaintiff driving toward the location where they agreed to meet, he observed and informed the other officers that there were two unidentified individuals in plaintiff's car. After plaintiff entered Officer Schneider's undercover white truck and showed Officer Schneider the marijuana, Officer Schneider told plaintiff that he needed to go inside the mall to get money from a friend and would be right back. After exiting his white truck, Officer Schneider informed the other officers that plaintiff was in the passenger side of his truck and the two unidentified individuals were in plaintiff's car.
At that point, Sergeant Vogt and Deputy Stenger drove toward Officer Schneider's truck to arrest plaintiff. Two other officers simultaneously drove toward plaintiff's car to confront the two unidentified individuals. As Sergeant Vogt approached the white truck, plaintiff exited the truck and began walking toward his car. Sergeant Vogt drove toward plaintiff and allegedly struck plaintiff with his patrol car, causing him to fall to the ground. Sergeant Vogt denies that he struck plaintiff with his patrol car, but indicates that he may have bumped plaintiff with the door of his patrol car when he excited his vehicle. After plaintiff regained his footing, Sergeant Vogt immediately took him to the ground, allegedly causing him to hit his head and suffer a loss of consciousness and a concussion. Despite allegedly inflicting or observing this use of force, Sergeant Vogt, Deputy Stenger, and Detective Louwsma did not provide plaintiff with medical care.
Plaintiff initiated this civil rights lawsuit on September 27, 2013. After a series of successful motions to dismiss, plaintiff filed his Third Amended Complaint on September 15, 2014. The parties then agreed to extend the time in which they could "amend claims and add additional parties," (Docket No. 96), and plaintiff filed his Fourth Amended Complaint ("FAC") on April 24, 2015, (Docket No. 115). Plaintiff's FAC asserts five claims: 1) a § 1983 claim for violation of plaintiff's right to substantive due process against Sergeant Vogt; 2) a § 1983 claim for excessive force in violation of the Fourth Amendment against Sergeant Vogt; 3) a § 1983 claim for failure to provide medical treatment in violation of plaintiff's right to substantive due process against Sergeant Vogt, Deputy Stenger, and Detective Louwsma; 4) a § 1983 claim against Sergeants Vogt and Robinson under the theory of "supervisor liability for excessive force and failure to provide medical treatment"; and 5) a § 1983 claim against Sheriff Raney under the theory of "supervisor liability for excessive force and failure to provide medical treatment." (Docket No. 115.) Defendants now move for summary judgment pursuant to Rule 56 on the ground that plaintiff cannot establish constitutional violations as a matter of law or, alternatively, that the officers are entitled to qualified immunity.
Defendants indicate that plaintiff's FAC was improperly filed because the stipulation extending the time to amend claims "merely created a deadline and did not supplant the dictates of F.R.C.P. 15(a) and Dist. Loc. R. 15.1." (Defs.' Reply at n.3.) In signing the stipulation, it was the court's understanding and intent to extend the deadline for the parties to amend the pleadings pursuant to Rule 16(b)(4) without the necessity of a formal motion. See Fed. R. Civ. P. 16(b)(4) ("A schedule may be modified only for good cause and with the judge's consent."). In any event, defendants have not suggested that they have suffered any prejudice from the filing of the FAC and judicial economy favors assessing the merits of plaintiff's most recent complaint.
II. Legal Standard
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.
A. Constitutional Right Governing the Use of the Patrol Car to Strike Plaintiff
Plaintiff challenges the constitutionality of Sergeant Vogt having allegedly struck him with his patrol car under both the Fourth Amendment and Due Process Clause. "Where a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). If the alleged force resulting from Sergeant Vogt's use of his patrol car is covered by the Fourth Amendment, plaintiff thus cannot assert a claim based on a violation of substantive due process.
As the court explained in previous orders, the constitutionality of Sergeant Vogt having allegedly struck plaintiff with his patrol car must be assessed under the Fourth Amendment if the incident amounted to a "seizure." (See May 22, 2014 Order at 6:1-7:3; Aug. 25, 2014 Order at 6:17-7:9.) "A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied." Brendlin v. California, 551 U.S. 249, 254 (2007) (internal quotations, citations, and emphasis omitted).
Assuming Sergeant Vogt struck plaintiff with his patrol car and knocked him to the ground, the undisputed evidence is that plaintiff quickly returned to a standing position before Sergeant Vogt exited his patrol car. (See Breckon Aff. Ex. A at 5:29:21 PM ("Breckon Patrol Car Video") (Docket No. 122-7).) Because he was able to return to a standing position, defendants argue that plaintiff did not submit to Deputy Vogt's authority and therefore was not seized. Actual submission is required, however, only when an officer seeks to seize a person through a show of authority without the use of physical force, such as instructing an individual to stop. See California v. Hodari P., 499 U.S. 621, 626 (1991) ("An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority."); accord United States v. Smith, 633 F.3d 889, 893 (9th Cir. 2011); see also Hodari D., 499 U.S. at 624, 626 ("To constitute an arrest,--the quintessential 'seizure of the person' under our Fourth Amendment jurisprudence--the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient. . . . The word 'seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful."). Accordingly, even if defendants could prove that plaintiff fled after returning to a standing position, these facts would not preclude the use of the patrol car to strike plaintiff from constituting a seizure.
Although defendants deny that Sergeant Vogt struck plaintiff with his patrol car, plaintiff established a genuine issue of material fact as to that issue. (See, e.g., Lloyd Aff. Ex. 14 at 134:13 (Saetrum Dep.) (Docket No. 127-14) ("He hit me with the front of his car . . . ."); Lloyd Aff. Ex. 10 at 44:10-12 (Saxton Dep.) (Docket No. 127-10) ("Q. Where did you see [the patrol car] strike Adam? A. On the side. He was walking, and it hit him."); Lloyd Aff. Ex. 5 at 24:20-22 (Mitchell Dep.) (Docket No. 127-4) ("At that time the cop car came down the middle of the aisle and hit Adam in the knee . . . ."). The court will therefore assume for purposes of this motion that Sergeant Vogt's patrol car struck plaintiff.
To amount to a seizure under the Fourth Amendment, Sergeant Vogt must have also terminated plaintiff's freedom of movement "through means intentionally applied." Brendlin, 551 U.S. at 254; see Lewis, 523 U.S. at 844 ("[N]o Fourth Amendment seizure would take place where a 'pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit, ' but accidentally stopped the suspect by crashing into him." (quoting Brower v. County of Inyo, 489 U.S. 593, 597 (1989))).
Here, the video footage from Sergeant Vogt's patrol car shows that Sergeant Vogt accelerated slightly when plaintiff exited the white truck, continued to drive toward him, and may have turned slightly toward plaintiff immediately before stopping. (Vogt Decl. Ex. B ("Vogt Patrol Car Video") at 5:29:17-5:29:24 PM.) The only evidence before the court regarding whether Sergeant Vogt intentionally hit plaintiff with his patrol car came from Sergeant Vogt. He indicates that his "door may have bumped [plaintiff] when it opened," but that he "never intended for [his] patrol car to be used as an impact weapon." (Vogt Decl. ¶ 17 (Docket No. 122-8); see also Vogt Decl. Ex. A (Ada County Sheriff's Office Supplemental Report) ("As I quickly put my patrol car in park and opened the driver's door, the momentum caused the opening driver's door to bump Saetrum near his right side and right arm.").) Whether a jury ultimately finds that Sergeant Vogt intentionally hit plaintiff with his patrol car thus hinges on whether the jury finds Sergeant Vogt's testimony credible.
"It has long been established that it is inappropriate to resolve issues of credibility, motive, and intent on motions for summary judgment. It is equally clear that where such issues are presented, the submission of affidavits or depositions is insufficient to support a motion for summary judgment." Hardin v. Pitney-Bowes Inc., 451 U.S. 1008, 1009 (1981) (Rehnquist, J., dissenting from the denial of the petition for writ of certiorari); see also Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996) ("'Cases where intent is a primary issue generally are inappropriate for summary judgment unless all reasonable inferences that could be drawn from the evidence defeat the plaintiff's claim.'" (quoting Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1220 (9th Cir. 1980))).
Here, because the issue of whether Sergeant Vogt intentionally used his patrol car to terminate plaintiff's freedom of movement hinges on Sergeant Vogt's intent and credibility, the court cannot weigh this evidence on a motion for summary judgment. See Crawford-El v. Britton, 523 U.S. 574, 599 (1998) ("[T] he defendant-official may move for partial summary judgment on objective issues that are potentially dispositive and are more amenable to summary disposition than disputes about the official's intent, which frequently turn on credibility assessments."). Plaintiff has thus established a triable issue as to whether Sergeant Vogt intentionally used his patrol car to strike plaintiff.
As previously discussed, whether Sergeant Vogt seized plaintiff when he allegedly struck him with his patrol car dictates whether that use of force is assessed under the Fourth Amendment or Due Process Clause. If Sergeant Vogt intentionally used his patrol car to strike plaintiff, plaintiff was subject to a seizure under the Fourth Amendment and the use of force must be assessed under that right. On the other hand, if Sergeant Vogt unintentionally struck plaintiff with his patrol car, plaintiff was not seized and the use of force would be subject only to the limitations of substantive due process. Because genuine issues of material fact exist as to these threshold issues, the court will assume that plaintiff was not seized for purposes of plaintiff's § 1983 substantive due process claim and that plaintiff was seized for purposes of plaintiff's § 1983 Fourth Amendment claim.
B. Substantive Due Process Claim Based on the Use of the Patrol Car
The Due Process Clause of the Fourteenth Amendment "guarante[es] more than fair process" and extends to "a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them." Lewis, 523 U.S. at 840. "The touchstone of due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), and "only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense,'" Lewis, 523 U.S. at 846 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992)). The Supreme Court has held that official conduct rises to this level only if it "shocks the conscience." Lewis, 523 U.S. at 846.
The standard used to assess whether conduct "shocks the conscience" depends on "whether the officers had the opportunity for actual deliberation." Porter v. Osborn, 546 F.3d 1131, 1138 (9th Cir. 2008). "Where actual deliberation is practical, then an officer's 'deliberate indifference' may suffice to shock the conscience." Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). "On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives." Id.; see also Porter, 546 F.3d at 1139 ("[W]hen an officer encounters fast paced circumstances presenting competing public safety obligations, the purpose to harm standard must apply.").
In determining which standard governs, "the critical consideration [is] whether the circumstances are such that 'actual deliberation is practical.'" Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 372 (9th Cir. 1998). "'[D]eliberation' should not be interpreted in the narrow, technical sense," Wilkinson, 610 F.3d at 554, but occurs only when "officials have the opportunity to deliberate various alternatives prior to selecting a course of conduct," Tennison v. City & County of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009).
Sergeant Vogt first became involved in the plan to arrest plaintiff after the controlled buy when he attended a briefing about one hour before Officer Schneider was to meet plaintiff to purchase marijuana. (Vogt Decl. ¶ 7.) When Officer Schneider saw plaintiff driving toward the location where they agreed to meet, he observed and informed the other officers that there were two unidentified individuals in plaintiff's car. (Schneider Decl. Ex. C.) Because the officers' original arrest plan was based on plaintiff being alone, they changed their plan and split the arrest team so that Sergeant Vogt and Deputy Stenger would arrest plaintiff while Deputies Piccola and Breckon simultaneously "handle[d]" plaintiff's companions. (Vogt Decl. ¶ 11.) The undisputed evidence shows that only two minutes and forty-six seconds passed from the time Officer Schneider first informed the Action Team that there were two unidentified individuals in plaintiff's car until the time Officer Schneider exited his truck to purportedly retrieve his money. (Schneider Decl. Ex. C; see also Vogt Decl. ¶ 10.) The officers thus had less than three minutes to develop their new arrest plan.
Plaintiff contends that the two minutes and forty-six seconds provided Sergeant Vogt and the other officers with adequate time to deliberate about and adjust their arrest plan in light of the unanticipated individuals. The court doubts that less than three minutes to change an arrest plan in an uncontrolled environment when two unidentified individuals accompanied the suspect is sufficient time to deliberate. Nonetheless, even if the court assumes that almost three minutes was sufficient time for the officers to deliberate a new arrest plan, the circumstances continued to change and the opportunity to deliberate significantly decreased.
From the time Officer Schneider exited his truck until "let me see your hands" can be heard on the recording, only forty-six seconds passed. (Schneider Decl. Ex. C.) During this forty-six seconds, Sergeant Vogt and the other officers drove from their discrete locations toward the white truck and plaintiff's car and confronted all three individuals. When Sergeant Vogt began driving toward the white truck, he expected that plaintiff would remain in the truck and that he would effectuate a vehicle arrest. (Vogt Decl. ¶ 12.) This understanding quickly changed when plaintiff unexpectedly exited the truck and began walking away from it. (Vogt Patrol Car Video at 5:29:17 PM; Vogt Decl. ¶ 14.) From the moment plaintiff unexpectedly exited the truck until Sergeant Vogt allegedly struck plaintiff with his patrol car, only seven seconds passed. (See Vogt Patrol Car Video at 5:29:24 PM (showing when Sergeant Vogt's patrol car stops).)
The video from Officer Breckon's patrol car shows that the officers yelled "let me see your hands" to the unidentified individuals in plaintiff's car. (Breckon Patrol Car Video at 17:29:25 PM.) "Let me see your hands" is yelled about one second after Sergeant Vogt forces plaintiff to the ground. (Id. at 17:28:24 PM.)
During these seven seconds, Sergeant Vogt had to significantly alter his plan from arresting plaintiff in the undercover truck to arresting him in a public parking lot. During these seven seconds, Sergeant Vogt observed plaintiff continue to walk toward his car after Sergeant Vogt activated his overhead lights. (Vogt Decl. ¶ 15.) During these seven seconds, Sergeant Vogt had to assess whether he believed plaintiff was armed, posed a threat to the officers or public, or was attempting to flee. (See id. ¶¶ 15-16; Vogt Dep. 103:13-21, 105:14-106:8.) Without question, the seven seconds did not afford Sergeant Vogt "ample time," Porter, 546 F.3d at 1139, to deliberate the potentially escalating change in circumstances resulting from plaintiff exiting the truck and walking toward his car. Cf. Wilkinson, 610 F.3d at 545 (officer did not have time to deliberate before firing eleven shots when the sequence of events from the final PIT maneuver to the shots being fired was only nine seconds).
While the circumstances here had not yet escalated to a car chase like in Lewis and Wilkinson, Sergeant Vogt knew plaintiff had a car nearby with two unknown individuals waiting in it, thus a car chase was a realistic possibility if plaintiff evaded arrest. Sergeant Vogt had a mere seven seconds to consider the possibility of plaintiff initiating a car chase in a public parking lot and had to make a split-second decision about how to quickly apprehend plaintiff. Under the circumstances of this case, a reasonable jury could not find that Sergeant Vogt had "'extended opportunities'" in a "completely controlled situation," Porter, 546 F.3d at 1139 (quoting Lewis, 523 U.S. at 853), to deliberate his plan to apprehend plaintiff.
Because Sergeant Vogt did not have time to deliberate as a matter of law, plaintiff must show that Sergeant Vogt had "the intent to inflict force beyond that which is required by a legitimate law enforcement objective." Porter, 546 F.3d at 1140 (internal quotation marks and citation omitted). The use of force alone, when utilized for a legitimate law enforcement objective, is generally not evidence of an intent to harm. See Wilkinson, 610 F.3d at 545 ("[N]o intent to harm separate from a legitimate law enforcement objective is evidenced by the mere fact that [the officer] shot [the plaintiff], especially in the escalating situation with [another officer] having fallen down, the engine revving, and the tires throwing up mud.").
Plaintiff has not submitted any evidence even tending to suggest that Sergeant Vogt intended to cause plaintiff harm that was unrelated to his legitimate law enforcement objective of apprehending him. The only evidence before the court shows that Sergeant Vogt made a "purely reactive decision," Porter, 546 F.3d at 1140, in light of quickly escalating circumstances that he did not create, see id. at 1141 ("When an officer creates the very emergency he then resorts to deadly force to resolve, he is not simply responding to a preexisting situation. His motives must then be assessed in light of the law enforcement objectives that can reasonably be found to have justified his actions.").
The force utilized in this case is also relatively minimal compared to the numerous cases in which the force resulted in the death of the suspect. E.g., Lewis, 523 U.S. at 837; Wilkinson, 610 F.3d at 549; Porter, 546 F.3d at 1133. When plaintiff was able to return to a standing position immediately after being hit and did not suffer any fractured bones, the force cannot rise to the "'rare situations where the nature of an officer's deliberate physical contact is such that a reasonable factfinder would conclude the officer intended to harm, terrorize or kill.'" Porter, 546 F.3d at 1140 (quoting Lewis, 523 U.S. at 174).
Accordingly, the court must grant defendants' motion for summary judgment on plaintiff's § 1983 claim based on a violation of substantive due process because Sergeant Vogt did not have time to deliberate and plaintiff has not established a genuine issue of material fact as to whether Sergeant Vogt acted with an intent to cause harm unrelated to a legitimate law enforcement objective. Because the court finds that Sergeant Vogt's use of his patrol car to strike plaintiff did not violate plaintiff's substantive due process rights as a matter of law, the court need not address Sergeant Vogt's claim of qualified immunity.
C. Fourth Amendment Excessive Force Claim
1. Genuine Dispute as to Violation
Assuming plaintiff was seized when Sergeant Vogt struck him with his patrol car, the constitutionality of that force must be assessed under the Fourth Amendment. Plaintiff also alleges that Sergeant Vogt's immediate and forceful takedown exceeded the limits of the Fourth Amendment.
"Fourth Amendment jurisprudence has long recognized that the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396. While "police officers need not employ the least intrusive degree of force . . . the presence of feasible alternatives is a factor to include in [the] analysis." Bryan v. MacPherson, 630 F.3d 805, 813 (9th Cir. 2010) (J., Wardlaw, concurring in the denial of rehearing en banc) (internal quotation marks, citations, and emphasis omitted).
To comport with the Fourth Amendment, officers' actions must be "'objectively reasonable' in light of the facts and circumstances confronting them." Graham, 490 U.S. at 397. This inquiry "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (internal quotation marks and citations omitted). It necessitates consideration of all of the relevant circumstances, including "(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect actively resists detention or attempts to escape." Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (citing Graham, 490 U.S. at 388). "[T]he jury must determine not only whether the officers were justified in using force at all, but, if so, whether the degree of force actually used was reasonable." Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002).
The "most important" factor under Graham is whether the suspect posed an "immediate threat to the safety of the officers or others." Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). "'A simple statement by an officer that he fears for his safety or the safety [of] others is not enough; there must be objective factors to justify such a concern.'" Bryan, 630 F.3d at 826 (quoting Deorle, 272 F.3d at 1281). "A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury." Id. (quoting Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)).
Whether an officer used excessive force under the Fourth Amendment is a question for the jury, which "almost always turn[s] on a jury's credibility determinations." Smith, 394 F.3d at 701. "Because such balancing nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Santos, 287 F.3d at 853.
Here, defendants contend that the changing circumstances, unidentified individuals in plaintiff's car, public location of the controlled buy, plaintiff's commission of a felony, and the lack of knowledge the officers had about whether plaintiff was armed show that plaintiff posed an immediate risk to the safety of the officers and public. While these generalized considerations are relevant, a jury could nonetheless find that plaintiff himself had done little to suggest that he posed a threat to the safety of the officers or public. For example, Sergeant Vogt indicates only that plaintiff was wearing lose clothing and, because he did not know whether plaintiff was armed, he assumed it was possible. (Vogt ¶ 16.) There is no evidence, however, indicating that plaintiff was actually armed or owned a weapon. Sergeant Vogt based his assumption solely on his impression that "drug dealers often carry concealed weapons." (Id.) With only this non-particularized evidence, a jury could conclude that a reasonable officer would not have perceived a threat.
While Sergeant Vogt also indicates that it "appear[ed] that [plaintiff] was getting ready to run," the undisputed evidence is that he never ran or attempted to flee. (Vogt Dep. 113:6-114:20.) Determining whether plaintiff in fact posed a risk to the officers or others thus requires a weighing of the facts and the reasonable inferences drawn therefrom. This is precisely the type of inquiry reserved for the trier of fact.
The Ninth Circuit has also explained that "police officers normally provide  warnings where feasible, even when the force is less than deadly, and that the failure to give such a warning is a factor to consider." Bryan, 630 F.3d at 831. When finding that the use of relatively minimal force in Jackson v. City of Bremerton was not excessive as a matter of law, the Ninth Circuit emphasized that the officers had warned the plaintiffs in advance that a chemical irritant would be used if they did not disperse. 268 F.3d 646, 650 (9th Cir. 2001). The Ada County Sheriff's Policy Manual on the Use of Force also instructs officers that, "[w]henever practicable, the arresting deputy should make clear his/her intent to arrest the person before using force." (Llyod Aff. Ex. 15, § 300.3.1 (Docket No. 127-15).)
Here, Sergeant Vogt never informed plaintiff that he was under arrest or gave him any warning or opportunity to comply before resorting to force. When asked why he did not give plaintiff oral instructions to stop before allegedly hitting him with his patrol car, Sergeant Vogt testified: "I was concerned about him making it to his vehicle." (Vogt Dep. 111:13-14.) Upon exiting his car, Sergeant Vogt again did not give plaintiff any warning or instruction before forcing him to the ground and shouted for plaintiff to get to the ground only while he was taking him down. (Id. at 146:15-22; Vogt Decl. ¶ 17.) Although plaintiff was walking toward his car prior to being hit, the undisputed evidence is that he never ran, even after allegedly making eye contact with Sergeant Vogt as he drove toward plaintiff. (Vogt Dep. 113:6-114:20; Vogt Decl. ¶ 15.) Taking all inferences in favor of plaintiff, a jury could find that a reasonable officer would have given plaintiff a warning or opportunity to comply before immediately resorting to force.
With respect to the amount of force used, while defendants deny that Sergeant Vogt intentionally hit plaintiff with his patrol car, they do not appear to dispute that the use of a patrol car as an impact weapon on a pedestrian is a significant use of force. Taking plaintiff to the ground, on the other hand, could be considered a more minimal use of force, and "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers' violates the Fourth Amendment," Graham, 490 U.S. at 396.
Defendants rely on Jackson as a case in which the Ninth Circuit held that a takedown, along with other "minimal" force, comports with the Fourth Amendment. 268 F.3d at 652-53. In Jackson, however, the plaintiff alleged only that "three officers pushed her to the ground to handcuff her" after she had gotten "to her knees and [had] leaned down." Id. at 650. Even assuming that the officers in Jackson utilized a similar takedown technique as Sergeant Vogt, the circumstances in Jackson are materially different than those in this case. Most notably, the officers in Jackson had "warned 'everyone' in advance" and the Ninth Circuit found that the plaintiff's "active interference posed an immediate threat to the officers' personal safety and ability to control the group." Id. at 650, 653.
Defendants also rely heavily on Liiv v. City of Coeur D'Alene, 130 Fed. App'x 848 (9th Cir. 2005), which is an unpublished case and not citable. See Ninth Cir. R. 36-3 (providing that unpublished decisions are not precedent and unpublished decisions issued before January 1, 2007 may not be cited unless cited for one of three limited purposes). Nonetheless, while the Ninth Circuit in Liiv affirmed the district court's grant of summary judgment in favor of the officer despite allegations of a "violent" takedown, the officer had ordered the plaintiff to leave the restricted area before using force and the plaintiff did not comply with the officer's request. 130 Fed. App'x at 850 & n.3.
In contrast to Jackson, the Ninth Circuit held in Santos that the jury could find that the use of a takedown of an intoxicated schizophrenic individual violated the Fourth Amendment when the plaintiff allegedly suffered a broken vertebra from the takedown. 287 F.3d at 853, 855. In addition to discussing other relevant circumstances, the Ninth Circuit explained that "the officers admitted that Santos did not pose a significant or immediate safety risk" and "did not struggle with the officers but in fact evinced a willingness to submit to their assertions of authority." Id. at 854. In distinguishing Jackson, the Ninth Circuit emphasized that "the circumstances surrounding the use of force in Jackson, as well as the extent of the force applied by the officers in that case, differ significantly from the events that occurred" in Santos. Id. at 854-55. Read together, these cases illustrate why the excessive force inquiry "requires careful attention to the facts and circumstances of each particular case and a careful balancing of an individual's liberty with the government's interest in the application of force." Id. at 853 (internal quotation marks and citation omitted).
Here, Sergeant Vogt testified during his deposition that, if he arrests someone in an open-air situation based on a controlled buy, he always takes that suspect to the ground. (Vogt Dep. 120:21-121:2.) The fact that plaintiff was being arrested for a controlled buy alone does not take into account all of the necessary considerations when weighing whether the takedown was a reasonable use of force in the particular instance. It is also inconsistent with the Ada County Sheriff's Office Policy Manuel on the Use of Force, which provides: "Deputies . . . who have probable cause to believe that a person has committed an offense may use reasonable force to effect the arrest if the person either attempts to flee or forcibly resists arrest." (Llyod Aff. Ex. 15 (emphasis added)); accord Idaho Code Crim. Proc. § 19-610 ("[I]f the person to be arrested either flees or forcibly resists, the officer may use all reasonable and necessary means to effect the arrest . . . .").
That plaintiff does not recall what happened after Sergeant Vogt allegedly hit him with his patrol car and thus cannot testify precisely how Sergeant Vogt took him to the ground does not entitle defendants to judgment as a matter of law. See Santos, 287 F.3d at 851-52 (holding that the district court erred in concluding that there was insufficient evidence of excessive force simply because the plaintiff "did not specifically remember being forced to the ground by defendant"). As the Ninth Circuit explained in Santos, proof of excessive force does not require direct evidence and "a jury's finding for a plaintiff in an excessive force case may unquestionably rest on inferences drawn from circumstantial evidence." Id. at 852.
Here, the undisputed evidence is that Sergeant Vogt forced plaintiff to the ground, (see Vogt Dep. 140:25-141:3, 146:16-18), and the jury could infer from the evidence of plaintiff's injuries that the force used to effect the takedown was excessive. See Santos, 287 F.3d at 851-52 ("Simply because Santos has no clear recollection of the act which he contends caused his severe injury does not mean that his claim must fail as a matter of law. . . . [A] jury might find the officers' testimony that they were restrained in their use of force not credible, and draw the inference from the medical and other circumstantial evidence that the plaintiff's injuries were inflicted on him by the officers' use of excessive force.").
In sum, a jury could find that it was unreasonable for Sergeant Vogt to intentionally hit plaintiff with his patrol car to stop him from walking and forcefully take him to the ground without warning even though plaintiff never attempted to flee or posed a threat to the officers or public. Plaintiff has therefore established the existence of genuine issues of material fact as to whether Sergeant Vogt used excessive force against him in violation of the Fourth Amendment.
2. Qualified Immunity
In suits under § 1983, "qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.'" Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "For purposes of qualified immunity, [the court must] resolve all factual disputes in favor of the party asserting the injury." Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013). The clearly established inquiry "serves the aim of refining the legal standard and is solely a question of law for the judge." Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir. 2009). To be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." Reichle v. Howards, --- U.S. ---, ---, 132 S.Ct. 2088, 2093 (2012) (internal quotation marks and citation omitted).
Here, the numerous factual disputes prevent the court from meaningfully characterizing the right at issue in this case. For example, if the jury finds that Sergeant Vogt in fact hit plaintiff with his patrol car, the subsequent use of the takedown must be considered in light of those circumstances. The jury must also determine whether a reasonable officer would have believed plaintiff was attempting to flee or posed a threat to the officers or public. Until the jury resolves these disputed issues of fact, the court cannot adequately assess whether Sergeant Vogt violated clearly established law of which a reasonable officer would have known. See Santos, 287 F.3d n.12 ("[I]t is premature to [decide qualified immunity] at this time, because whether the officers may be said to have made a 'reasonable mistake' of fact or law, may depend on the jury's resolution of disputed facts and the inferences it draws therefrom. Until the jury makes those decisions, we cannot know, for example, how much force was used, and, thus, whether a reasonable officer could have mistakenly believed that the use of that degree of force was lawful.") (internal citation omitted); see also Luchtel v. Hagemann, 623 F.3d 975, 989 (9th Cir. 2010) (explaining that summary judgment should be granted "sparingly" in excessive force cases "even with respect to the issue of qualified immunity").
Accordingly, because plaintiff has established a genuine issue of material fact on his Fourth Amendment excessive force claim against Sergeant Vogt and the numerous factual disputes preclude the court from assessing qualified immunity at this time, the court must deny defendants' motion for summary judgment on that claim.
D. Medical Needs Claim
When an individual has "not been convicted of a crime, but ha[s] only been arrested, his rights derive from the due process clause rather than the Eighth Amendment's protection." Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). The Ninth Circuit has nonetheless held that, "[w]ith regard to medical needs, the due process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: 'persons in custody ha[ve] the established right to not have officials remain deliberately indifferent to their serious medical needs.'" Id. (quoting Carnell v. Grimm, 74 F.3d 997, 979 (9th Cir. 1996)) (second alteration in original); see also Carnell, 74 F.3d at 979 ("[T]he due process rights are at least as great as the Eighth Amendment protections available to a convicted prisoner.") (emphasis added). The Supreme Court has also indicated, "Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial." Lewis, 523 U.S. at 850.
A recent Supreme Court decision calls into question whether it is appropriate to borrow the Eighth Amendment standard when the claim is brought by an arrestee, not a convicted prisoner, and whether the Due Process Clause may afford greater protection than the Eighth Amendment. See Kingsley v. Hendrickson, --- S.Ct. ----, 2015 WL 2473447, at *8 (U.S. June 22, 2015) ("The language of the two Clauses differs, and the nature of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all . . . ."). The court need not resolve this issue, however, because it appears there would be little practical difference between whether an arrestee's or pretrial detainee's medical needs claim is examined under a test akin to that in Kingsley or the deliberate indifference standard from the Eighth Amendment.
"Under the Eighth Amendment's standard of deliberate indifference, a person is liable for denying a prisoner needed medical care only if the person 'knows of and disregards an excessive risk to inmate health and safety.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)); see also Farmer, 511 U.S. at 837 ("[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."); Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (explaining that a serious medical need exists if "failure to treat the injury or condition 'could result in further significant injury' or cause 'the unnecessary and wanton infliction of pain.'" (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006))).
As discussed above, plaintiff has established a genuine issue of material fact that Sergeant Vogt used excessive force against him when he struck him with his patrol car and forcefully took him to the ground. Plaintiff further alleges that, as a result of the takedown, he suffered a concussion and a loss of consciousness and has put forth evidence to raise a genuine dispute on these facts. (See Saetrum Aff. Exs. 1, 2.) The undisputed evidence is that plaintiff was unconscious for a maximum of one minute and, after regaining consciousness, did not complain of or show any visible signs of an injury. Plaintiff claims he had a serious medical need and that Sergeant Vogt, Detective Louwsma, and Deputy Stenger observed the use of force and his loss of consciousness and were deliberately indifferent when they did not obtain medical assistance or report the injuries to the jail. The court will exercise its discretion under Pearson to assume that plaintiff had a serious medical need and that the officers were deliberately indifferent to it and proceed to address qualified immunity. See Pearson, 555 U.S. at 236.
For purposes of qualified immunity, the court must continue to resolve all factual disputes in favor of plaintiff. Ellins, 710 F.3d at 1064. "[Q]ualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.'" Pearson, 555 U.S. at 232 (quoting Harlow, 457 U.S. at 818). To be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." Reichle, 132 S.Ct. at 2093 (internal quotation marks and citation omitted). "The proper inquiry focuses on whether 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,' or whether the state of the law [at the time of the incident] gave 'fair warning' to the officials that their conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (quoting Saucier, 533 U.S. at 202; Hope v. Pelzer, 536 U.S. 730 (2002)). The clearly established inquiry "is solely a question of law for the judge." Tortu, 556 F.3d at 1085.
Whether the unlawfulness of certain conduct is clearly established "depends largely 'upon the level of generality at which the relevant "legal rule" is to be identified.'" Wilson, 526 U.S. at 614 (quoting Anderson, 483 U.S. at 639). The right must be defined in a "particularized, and hence more relevant, sense," requiring a court to strike a balance between defining a right too generally so that the definition necessarily leads to the conclusion that the right is clearly established and defining the right too narrowly so that prior precedent must mirror the facts of the case in order to conclude that the right has been clearly established. Saucier, 533 U.S. at 202-03.
For purposes of a medical needs claim under the Eighth Amendment, the Ninth Circuit has held that the deliberate indifference standard sufficiently particularizes the right at issue. See Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995) (explaining that the "Eighth Amendment rights in the prison medical context" have "already been particularized") (emphasis omitted); accord Newell v. Sauser, 79 F.3d 115, 117 & n.3 (9th Cir. 1996). The Ninth Circuit has also held that the Eighth Amendment's guarantee that prisoners have "a right to officials who are not 'deliberately indifferent to serious medical needs'" is clearly established. Id. At least among most circuit courts, it is also clearly established that this same standard governs medical needs claims by arrestees. Gibson, 290 F.3d at 1187; see also, e.g., Estate of Booker v. Gomez, 745 F.3d 405, 433 (10th Cir. 2014) ("We have previously observed there is little doubt that deliberate indifference to an inmate's serious medical need [violates] a clearly established constitutional right. This principle also clearly applies to pretrial detainees through the due process clause of the Fourteenth Amendment.") (internal quotation marks and citations omitted) (alteration in original).
An overwhelming majority of the circuits apply the deliberate indifference standard to medical needs claims by arrestees. See, e.g., Kollin v. City of Cleveland, 557 Fed. App'x 396, 399 (6th Cir. 2014); Smith v. Gransden, 553 Fed. App'x 173, 177 (2d Cir. 2014); Thompson v. King, 730 F.3d 742, 745-46 (8th Cir. 2013); Carter v. DeKalb County, 521 Fed. App'x 725, 729 (11th Cir. 2013); Childress v. Harms, 449 Fed. App'x 758, 759-60 (10th Cir. 2011); Abshure v. Prator, 392 Fed. App'x 267, 269 (5th Cir. 2010); Jennings v. Fetterman, 197 Fed. App'x 162, 165 (3d Cir. 2006). With the exception of the Seventh Circuit, all of the circuits apply the deliberate indifference standard to medical needs claims by pretrial detainees. See, e.g., Nouri v. County of Oakland, --- Fed. App'x ----, 2015 WL 3650168, at *3 (6th Cir. June 12, 2015); Morrison v. City of Atlanta, --- Fed. App'x ----, 2015 WL 3561228, at *4 (11th Cir. June 9, 2015); Montgomery v. Aparatis Dist. Co., --- Fed. App'x ----, 2015 WL 1600521, at *2 (3d Cir. Apr. 10, 2015); Penn v. Escorsio, 764 F.3d 102, 110 (1st Cir. 2014); Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014); Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014); Nielsen v. Rabin, 746 F.3d 58, 63 n.3 (2d Cir. 2014); Silva v. Moses, 542 Fed. App'x 308, 310 (5th Cir. 2013); Lenhart v. Pennsylvania, 528 Fed. App'x 111, 115 (3d Cir. 2013).
The Seventh Circuit distinguishes between arrestees and pretrial detainees and evaluates arrestee's medical needs claims under the Fourth Amendment:
The relevant legal standard for arrestees who have been seized but who have not yet had their probable cause hearing, we conclude, comes from the Fourth Amendment, not the Fourteenth, and certainly not the Eighth. The issue is whether the state actor's response to [the arrestee]'s medical needs was objectively unreasonable and caused the harm of which [the arrestee] complains.
Even if the law is clearly established, "an officer who makes a reasonable mistake as to what the law requires under a given set of circumstances is entitled to the immunity defense." Landry v. Berry, 533 F. App'x 702, 703 (9th Cir. 2013) (quoting Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004)). "The protection of qualified immunity applies regardless of whether the government official's error is 'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).
Here, it is undisputed that if plaintiff was unconscious it was for a maximum of one minute and, upon regaining consciousness, did not have any visible signs of an injury or indicate any concerns to the officers. Plaintiff nonetheless argues that a reasonable officer would have obtained medical assistance or reported an injury to the jail based exclusively on the force used against plaintiff and the fact that he temporarily lost consciousness.
In cases where circuit courts have held that officers were not entitled to qualified immunity when they failed to provide medical assistance, the plaintiffs' injuries would have been obvious to any reasonable officer. For example, in Booker, officers put an arrestee in a "carotid restraint, " which the officers were taught as a technique to "compress the carotid arteries and [diminish] the supply of oxygenated blood to the brain . . . while concurrently sealing the jugular vein which returns the deoxygenated blood." 745 F.3d at 413 (internal quotation marks and citation omitted). After employing this technique for over a minute, other officers proceeded to use additional pain compliance techniques, nunchakus, and a tazer on the arrestee while the arrestee was mostly "motionless on the floor." Id. at 413-15. The officers then restrained the arrestee and carried his "limp and unconscious" body by his limbs to a cell where they placed him face down. Id. at 415, 431. None of the officers took his vitals or attempted to assess whether he needed medical care before leaving him in the cell. Id. at 415.
Similar to Booker, other circuit courts have found that officers were not entitled to qualified immunity when they failed to provide medical assistance to an individual who had continuing serious injuries that were either obvious or reported to the officers. See McRaven v. Sanders, 577 F.3d 974, 980 (8th Cir. 2009) (explaining that it had previously "affirmed the denial of qualified immunity when an officer was aware of the inmate's medical issues, knew the inmate had complained of breathing trouble and chest pain, but waited for other officers to ask him to initiate medical treatment"); Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 603-04 (6th Cir. 2005) (denying qualified immunity when "each officer viewed Owensby in significant physical distress, yet made no attempt to summon or provide any medical care until several minutes later"); Bozeman v. Orum, 422 F.3d 1265, 1274 (11th Cir. 2005) (noting that "[m]ost cases in which deliberate indifference is asserted are far from obvious violations of the Constitution" but that the officers were not entitled to qualified immunity when they delayed in providing medical treatment to a pretrial detainee who "was unconscious and not breathing"), abrogated on other grounds by Kingsley, 135 S. Ct. 2466.
Here, neither side presented evidence about whether a temporary loss of consciousness like the plaintiff experienced in this case is a serious medical condition or, even assuming it is, that the seriousness would be obvious to a reasonable officer. Although the court assumes plaintiff had a serious medical need for purposes of this motion, it is not obvious to this court whether such a temporary loss of consciousness necessitates immediate medical treatment or that a concussion is an obvious risk from a temporary loss of consciousness. Cases such as Booker, where the plaintiff lost consciousness and remained unconscious due to an inability to breathe, do not give officers fair notice that the Constitution requires officers to obtain medical assistance for an individual who suffers a temporary loss of consciousness without any observable injury. Nor do the deliberate indifference and serious medical need standards invite simplistic application based on a single fact, such as the loss of consciousness. Cf. Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1082-83 (9th Cir. 2013) (recognizing that the Ninth Circuit has found that the failure to "provide CPR or other life-saving measures to an inmate in obvious need can provide the basis for liability," but does "not necessarily amount to deliberate indifference") (emphasis added); see also Bozeman, 422 F.3d at 1274 ("Most cases in which deliberate indifference is asserted are far from obvious violations of the Constitution.").
Unlike Booker and other circuit cases in which a reasonable officer would not fail to understand the need for action, this case is more analogous to Gibson. In Gibson, the defendant officers had not been informed that the combative arrestee suffered from a manic depressive disorder and needed psychiatric treatment. 290 F.3d at 1180, 1196. The Ninth Circuit ultimately concluded that even though the officers' failure to provide medical treatment "proved fatal," it was not unconstitutional. Id. at 1196. The officers' conduct comported with the Fourteenth Amendment because "all the deputies at the jail knew about [plaintiff's] mental condition was what they could observe of his behavior" and there was "no evidence that any of them actually knew that this behavior connoted serious, treatable mental illness." Id. at 1197. The Ninth Circuit emphasized that the plaintiff was not "so obviously mentally ill that the deputies, who had received no training regarding the diagnosis and treatment of mental illness, must have known that Gibson was exhibiting symptoms of mental illness." Id. Like the plaintiff in Gibson, the plaintiff's outward appearance after regaining consciousness would not have made it clear to a reasonable officer that he had sustained a concussion or other injury.
The training the officers received in Booker further distinguishes why a reasonable officer would have known that medical treatment was necessary in that case. The officers in Booker were trained that a carotid restraint could render a person unconscious within ten to twenty seconds and that "[b]rain damage or death could occur if the technique is applied for more than one minute." 745 F.3d at 413 (internal quotation marks, citation, and emphasis omitted) (alteration in original). Despite having been trained about the "foreseeable, rapid, and deadly consequences" from using a carotid restraint for over a minute, an officer nonetheless proceeded to use it for longer than a minute. Id. at 432. Because the purpose of the technique in Booker was to render a person unconscious and the officers were trained that the duration they used it for could be fatal, a reasonable officer could not mistakenly believe that the individual successfully rendered unconscious from prolonged use of the technique did not require medical assistance. The training the officers received in Booker was critical to the Tenth Circuit's conclusion that they were not entitled to qualified immunity. See id. at 434 ("[T]he contours of the right are clearly established such that any reasonable officer in the Defendants' position (and with their training) would have known that failing to check Mr. Booker's vital signs, perform CPR, or seek medical care for three minutes when he was limp and unconscious as a result of the Defendants' use of force could violate the Constitution.") (emphasis added).
Here, however, a takedown is not employed to render a person unconscious and there is no evidence that the officers were trained that a takedown could result in serious or fatal injuries. Similar to Gibson, there is no evidence that the officers received training about whether medical treatment is necessary under all circumstances when a suspect loses consciousness after hitting his head but quickly regains consciousness without any visible signs of an injury. Especially in the absence of training to the contrary, an officer would be reasonable in concluding that medical assistance was unnecessary for an individual who quickly regains consciousness and does not complain of or show any signs of an injury.
Plaintiff relies primarily on the Ada County Sheriff's Office Policy Manual on the Use of Force to argue that the officers were on notice that medical treatment was necessary. The Use of Force Policy provides, "[p]rior to booking or release, medical assistance shall be obtained for any person . . . who was rendered unconscious." (Lloyd Decl. Ex. 15 at 4.) In Drummond ex rel. Drummond v. City of Anaheim, the Ninth Circuit explained that police department training materials are relevant for purposes of qualified immunity when assessing "whether reasonable officers would have been on notice that the force employed was objectively unreasonable." 343 F.3d 1052, 1062 (9th Cir. 2003). In that case, the officers had "kneel[ed] on the back and neck of a compliant detainee, and press[ed] the weight of two officers' bodies on him even after he complained that he was choking and in need of air." Id. at 1062. The officers utilized this force despite the fact that their own departmental training materials specifically warned that, "when one or more [officers] are kneeling on a subject's back or neck to restrain him, compression asphyxia can result [t]hat may be a precipitating factor in causing death." Id. at 1061-62 (internal quotation marks omitted) (alterations in original).
Unlike in Drummond, Ada County's Use of Force Policy does not articulate the cause and deadly consequences of the exact technique used on plaintiff. Because the Use of Force Policy does not explain why medical assistance is necessary for an individual who "was rendered unconscious," it cannot put a reasonable officer on notice that the failure to obtain medical assistance after a person regains consciousness could cause greater harm. The policy simply does not provide the officers with the necessary medical training to put it beyond debate that failing to obtain medical assistance in this case violated a clearly established right of which a reasonable officer would know.
The contemplated timing of the policy, which instructs officers to obtain medical assistance "[p]rior to booking or release," also fails to put the arresting officers on notice that the responsibility to obtain medical assistance in this case rested with them. The Constitution requires "jails [to] provide medical staff who are 'competent to deal with prisoners' problems.'" Gibson, 290 F.3d at 1187 (quoting Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982)). A reasonable officer could have believed that if plaintiff discovered any injury or began to show any signs of an injury--which he did not during the officers' encounter with him--the trained staff at the jail would adequately respond to his needs. It is without question that the jail is better equipped to make such medical decisions about non-obvious injuries than officers effecting an arrest under escalating circumstances.
The Supreme Court has repeatedly emphasized that "'[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments,' and 'protects "all but the plainly incompetent or those who knowingly violate the law."'" Stanton v. Sims, --- U.S. ---, ---, 134 S.Ct. 3, 5 (2013) (citations omitted). The court cannot conclude that the officers' inaction after plaintiff quickly regained consciousness and neither complained of nor exhibited any signs of injury was plainly incompetent or shows that they knowingly violated the law. To the contrary, it would not have been obvious to a reasonable officer that plaintiff suffered from a serious medical condition and that the Constitution required medical assistance. Accordingly, the officers are entitled to qualified immunity and the court must grant defendants' motion for summary judgment on plaintiff's medical needs claim against Sergeant Vogt, Detective Louwsma, and Deputy Stenger.
E. Claims Against the Supervisor Defendants
"Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). "A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). The Ninth Circuit has stated that supervisors may be held liable under § 1983 under the following theories:
"(1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a 'reckless or callous indifference to the rights of others.'"Moss v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th Cir. 2012) (quoting al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009), rev'd on other grounds, Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011)).
The Ninth Circuit's enumeration of cognizable theories of liability against a supervisor preceded Iqbal, which clarified that a supervisor could be held liable only "through the official's own individual actions," Iqbal, 556 U.S. at 676. The plaintiffs in Moss alleged § 1983 claims based on Fourth Amendment violations and the Ninth Circuit recognized that, because al-Kidd was decided pre-Iqbal, the "extent to which its supervisory liability framework is consistent with that decision and remains good law has been debated." Moss, 675 F.3d at 1231 n.6 (citing al-Kidd, 598 F.3d at 1141 (O'Scannlain, J., dissenting from denial of rehearing en banc); Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191 n.5 (3d Cir. 2009); Maldonado v. Fontanes, 568 F.3d 263, 274 n.7 (1st Cir. 2009)). The Ninth Circuit nonetheless declined "to consider that debate" because the plaintiffs did not "allege sufficient facts to meet the standard set forth in al-Kidd." Id. Similar to Moss, the court recognizes the uncertainty of the supervisor liability standard governing Fourth Amendment claims, but need not resolve the issue because plaintiff has not submitted sufficient evidence to withstand summary judgment under any of the potential theories.
Plaintiff first alleges that Sergeant Vogt "knowingly refus[ed] to terminate the series of acts by himself and the other members of the Action Team" and "fail[ed] to supervise and control the members of the Action Team." (FAC ¶ LXXXV.) The conduct giving rise to plaintiff's § 1983 claims is the use of force by Sergeant Vogt and failure to provide medical treatment by Sergeant Vogt, Deputy Stenger, and Deputy Louwsma. Any "supervisor liability" claim against Sergeant Vogt based on his failure to adequately supervise himself is nonsensical and adds nothing to plaintiff's case.
The only other member of the Action Team alleged to have violated plaintiff's rights is Deputy Stenger. Plaintiff has not put forth any evidence showing how Sergeant Vogt, in his role as supervisor, caused Deputy Stenger to inadequately respond to plaintiff's medical needs. Moreover, any such claim based on Sergeant Vogt's supervisory role is duplicative and seeks to remedy the precise injury allegedly caused by Sergeant Vogt's own allegedly inadequate response to plaintiff's medical needs. The court must therefore grant defendants' motion for summary judgment on plaintiff's fourth claim against Sergeant Vogt.
Any theory of liability based on Sergeant Vogt having allegedly warned other officers to turn off their mics fails to allege a cognizable violation of the Constitution. While that evidence may be relevant circumstantial evidence as to plaintiff's claims against Sergeant Vogt, advising officers to turn off their mics alone does not amount to the deprivation of a constitutional right.
Sergeant Robinson was allegedly the supervisor of Deputy Louwsma during the undercover purchase and arrest. Plaintiff alleges that Sergeant Robinson "knowingly refus[ed] to terminate the series of acts" by Deputy Louwsma that lead to a violation of plaintiff's rights. Plaintiff does not, however, allege or submit any evidence suggesting that Sergeant Robinson witnessed the alleged use of excessive force or had any knowledge that plaintiff was injured during the arrest. (See Robinson Decl. ¶¶ 6-7.) Absent such knowledge, Sergeant Robinson could not have had any "personal involvement in the constitutional deprivation" and there is not "a sufficient causal connection between" Sergeant Robinson's inaction and Deputy Louwsma's conduct. Starr, 652 F.3d at 1207. Similarly, Sergeant Robinson's approval of Deputy Louwsma's report indicating that excessive force was not used against plaintiff does not give rise to a cognizable claim in the absence of evidence showing that Sergeant Robinson knew the statement was false. Accordingly, because plaintiff fails to allege--let alone submit evidence supporting--a claim against Sergeant Robinson, the court must grant defendants' motion for summary judgment on plaintiff's fourth claim against Sergeant Robinson.
As discussed in more detail in the court's August 25, 2014 Order, even if Sergeant Robinson knew that Deputy Louwsma's statement as to the use of force was false, mere approval of misconduct after it occurred cannot give rise to a claim against a supervisor. (See generally Aug. 25, 2014 Order at 11:24-12:5 ("[A supervisor's] inaction occurring exclusively after the alleged violations cannot plausibly allege 'a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.' Although the Ninth Circuit has upheld supervisor liability based on the supervisor's 'knowledge of and acquiescence in unconstitutional conduct by his or her subordinates,' the plaintiff must still show that 'the supervisor breached a duty to plaintiff which was the proximate cause of the injury.' (quoting Starr, 652 F.3d at 1207)); Aug. 25, 2014 Order at 12:19-26 ("A supervisor's conduct is therefore sufficient to 'establish the requisite causal link only when the supervisor engaged in at least some type of conduct before the unconstitutional incident and the supervisor knew or should have known that his conduct could cause the constitutional violation the plaintiff suffered.'" (quoting Jones v. County of Sacramento, Civ. No. 2:09-1025 WBS DAD, 2010 WL 2843409, at *7 (E.D. Cal. July 20, 2010))); see also Starr, 652 F.3d at 1208.
Plaintiff's fifth claim against Sheriff Raney alleges that various officers violated the Ada County Sheriff Office's Use of Force and Use of Audio/Video Recorders policies because of "Sheriff Raney's failure to train and/or supervise and control his deputies and their supervisors." (FAC ¶¶ XCVIII-XCIX.) The court previously held that such conclusory allegations as to Sheriff Raney were insufficient to withstand a motion to dismiss. (See Aug. 25, 2014 Order at 10:8-13 ("[P]laintiff alleges that the constitutional violations occurred as a result of Sheriff Raney's 'failure to properly train, supervise and control' the deputy defendants. These allegations, however, lack any factual support and are therefore insufficient under Iqbal.") (internal citation omitted); see also Aug. 25, 2014 Order at 10:13-8-13 (citing cases and discussing authority).) Without citing a single piece of evidence to support these conclusory allegations, plaintiff's allegations amount to nothing more than an attempt to hold Sheriff Raney vicariously liable for the conduct of his subordinates.
For the first time at oral argument, plaintiff sought to hold Sheriff Raney liable for adopting an allegedly unconstitutional policy. Specifically, plaintiff contends that the Ada County Sheriff's Office Policy Manual on the Use of Force unconstitutionally vests officers with discretion in deciding when to give a verbal warning or instruction to a suspect before using force. (E.g., Llyod Aff. Ex. 15, § 300.3.1 ("Given that no policy can realistically predict every possible situation a deputy might encounter, deputies are entrusted to use well-reasoned discretion in determining the appropriate use of force in each incident.").) The Policy Manual on the Use of Force, which generally tracks the Graham objective reasonableness test, (see id. §§ 300.2, 300.3, 300.3.1, 300.3.2), instructs officers that, "[w]henever practicable, the arresting deputy should make clear his/her intent to arrest the person before using force," (id. § 300.3.1). Plaintiff has not cited a single case, and the court is not aware of one, that suggests a policy vesting officers with discretion in utilizing reasonable force and advising the officers to warn a suspect before resorting to force when it is practicable is inadequate under the Fourth Amendment. Accordingly, the court must grant defendants' motion for summary judgment on plaintiff's fifth claim against Sheriff Raney.
A claim based on the unconstitutionality of a policy is generally brought against the municipality under Monell v. Department of Social Services, 436 U.S. 658 (1978). See generally Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) ("A section 1983 plaintiff may establish municipal liability . . . [by showing] that the individual who committed the constitutional tort was an official with final policy-making authority' and that the challenged action itself thus constituted an act of official governmental policy." (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986))). --------
IT IS THEREFORE ORDERED that defendants' motion for summary judgment be, and the same hereby is, GRANTED with respect to plaintiff's first, third, fourth, and fifth claims and DENIED with respect to plaintiff's second claim. The remaining claim for trial is plaintiff's § 1983 claim for excessive force against Sergeant Vogt. Dated: August 7, 2015
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
Currie v. Chhabra, 728 F.3d 626, 631 (7th Cir. 2013) (internal quotation marks and citations omitted) (alterations in original); see also Pittman ex rel. Hamilton v. County of Madison, 746 F.3d 766, 775 (7th Cir. 2014) (applying the Eighth Amendment deliberate indifference standard to pretrial detainees' medical needs claims).
As previously noted, Kingsley may suggest that courts should not borrow from the Eighth Amendment to assess a medical needs claim by an arrestee or pretrial detainee. The fact that the Supreme Court has not articulated the precise standard governing a medical needs claim by an arrestee or pretrial detainee could be seen as undermining the conclusion that the right is clearly established. However, because the contours of the right under any test adopted from Kingsley appear to be similar to the standard borrowed from the Eighth Amendment, Kingsley does not prevent the right at issue in this case from being clearly established. See Saucier v. Katz, 533 U.S. 194, 202-03 (2001) ("Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard."), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).