KAREN S. CRAWFORD, Magistrate Judge.
This is an action for money damages brought by plaintiff Timothy Strem against defendants San Diego Sheriffs Deputies Vernon Willis, Peter Myers, and their employer, the County of San Diego (collectively, "Defendants"). Presently before the Court is defendants' Motion for Summary Judgment [Doc. No. 106], which seeks an order granting summary judgment on the basis of qualified immunity.
This case was initially set for a jury trial to begin on May 30, 2017. [Doc. No. 67.] However, on May 12, 2017, the Ninth Circuit Court of Appeals published an opinion in S.B., a minor v. County ofSan Diego, No. 15-56848, 2017 WL 1959984 (9th Cir. May 12, 2017) ("S.B."), which provided additional guidance on the issue of qualified immunity. Accordingly, on May 19, 2017, this Court vacated the trial and ordered the parties to submit supplemental briefing on the issue of qualified immunity. [Doc. No. 102.] On June 15, 2017, defendants filed a Motion for Summary Judgment on plaintiffs two remaining claims: (1) federal excessive force in violation of 42 U.S.C. § 1983; and, (2) state law battery.
For the reasons set forth below, defendants' Motion for Summary Judgment as to the federal excessive force claim is
On September 24, 2014, plaintiff called his physician's office and spoke to Matthew Hollen and Tiffany Branam, patient services representatives. [Doc. No. 107-2, at p. 2.] Plaintiff, frustrated about his unresolved medical issues, became upset and made a comment that was interpreted as a suicide threat. [Doc. No. 107-6, Hollen Dep. 42:17-18, 43:6-8.] Mr. Hollen was "very concerned" and was reportedly "shaking and yelling," asking plaintiff to "stay with [him]." [Hollen Dep., 44:2; Doc. No. 107-5, Branam Dep. 19:16-17, 18:2.] In response, Ms. Branam, Mr. Hollen's colleague who overheard Mr. Hollen, called 911 and reported the suicide threat. [Branam Dep. 18:21-25.]
At approximately 10:00 a.m., Sheriffs Deputies Vernon Willis and Peter Myers were dispatched to plaintiffs home in Vista. [Doc. No. 107-12, Ex. le ("Dispatch Trans.").] They were told by the radio dispatcher:
Id. at 1:6-10.
When the deputies arrived at plaintiffs address, they knocked on the door of plaintiffs building. During this time, the radio dispatcher told the deputies that plaintiff "did state he had his gun out." [Dispatch Trans., at 2:6-17.] The radio dispatcher again repeated: "11-45 [suicidal threat] suspect at 634 Galaxy Drive. He stated to the hospital thathehadagunout." Id. at3:1-2.
When plaintiff exited his house, both deputies observed plaintiff holding a phone in one hand and a bloody napkin in the other. [Doc. No. 107-8, Willis Dep. 59:1-3; Doc. No. 107-7, Myers Dep. 38:18-22.] Plaintiff was shirtless, shoeless, and wearing only pajama pants, with the pockets turned out. [Doc. No. 107-12, Ex. le; Doc. No. 107-13, Ex. 2; see also Doc. No. 106-1, at p. 7; Doc. No. 107-1, at p. 5.] Plaintiff contends that the deputies should have known that plaintiff had been coughing up blood because the radio dispatcher was informed of this. [Doc. No. 107-1, at p. 4.] However, there is no indication that the deputies were informed of this based on the radio dispatch call transcript. [See Dispatch Trans.]
Both parties agree that when plaintiff exited his house, defendants had legal justification to take plaintiff into custody. [Doc. No. 76, at p. l.] The facts leading up to plaintiffs handcuffing, however, are disputed. Plaintiff contends that he told the deputies about his shoulder injuries and heart condition, but that they still asked him to put his hands behind his back.
Defendants allege that during this encounter, Deputy Willis gave plaintiff "commands to come towards [him]," which plaintiff ignored. [Willis Dep. 60:17-61:11; 62:8-9.] He described plaintiffs demeanor as "noncompliant." Id. at 61:25. Deputy Willis explained in his deposition that "after giving [plaintiff] ample chance to not tense his muscles," the deputies "took [plaintiff] to the ground." Id. at 66:16-17. Deputy Myers described the takedown from his perspective: "[I]t looked like [Deputy Willis] pretty much pulled him to the ground." [Myers Dep. 47:22-24.] At this point, Deputy Willis placed his knee on the back of plaintiffs head "because he kept moving" [Willis Dep. 68: 18] and the deputies secured plaintiffs hands behind his back and handcuffed him. [Willis Dep. 68: 15-20; Myers Dep. 48:25-49:4.]
Upon a search of plaintiff, the deputies found that he had no weapons on his body. [Willis Dep. 49:24-25.] Upon plaintiffs consent, the deputies searched plaintiffs house and found a .3 8 caliber revolver in his bedroom. Id. at 51:21-53:14. Plaintiff was then transported to Tri-City Hospital for a psychiatric evaluation. [Doc. No. 76, at p. 1.] While the altercation resulted in pain, concern for his health, and minor injuries, "[plaintiffs] injuries were not lasting or permanent." [Doc. No. 94, at p. 1.]
Plaintiff asserts a federal claim under 42 U.S.C. § 1983 alleging that given his physical limitations, defendants' use of force was unwarranted and violated his "constitutional right under the Fourth Amendment to the United States Constitution to be secure in his person from the use of unreasonable and excessive force." [Doc. No. 1, at p. 7.] Defendants argue that the deputies are entitled to qualified immunity on the excessive force claim, and move for summary judgment on this basis. [Doc. No. 106-1.]
Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party initially bears the burden of proving the absence of genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to show there is a genuine issue for trial. Id. at 331.
The Court considers the record as a whole and draws all reasonable inferences in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The Court does not make credibility determinations or weigh conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the Court determines whether the record "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at251-52.
Defendants argue that they are entitled to summary judgment on plaintiff's federal excessive force claim based on qualified immunity.
The Court must determine whether the asserted constitutional right was clearly established at the time of the officers' alleged misconduct. To be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [the official] is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The clearly established law must be "particularized to the facts of the case" and should not be defined "at a high level of generality." White v. Pauly, 137 S.Ct. 548 (2017) (citing Anderson, 483 U.S. at 639-640); see also Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (the inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition"). "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional questions beyond debate." S.B., 2017 WL 1959984, at *6, 7 (describing the standard as "exacting"). Put another way, only the "plainly incompetent" officer will not enjoy qualified immunity. Id. at *5 (citation omitted).
Before this Court can impose liability on defendants Sheriff Deputies Willis and Myers, it must identify precedent as of September 24, 2014 — the day of the alleged violation — that put the deputies "on clear notice that using force in these particular circumstances would be excessive." S.B., 2017 WL 1959984, at *6. "General excessive force principles, as set forth in Graham and Garner, are `not inherently incapable of giving fair and clear warning to officers,' but they `do not by themselves create clearly established law outside an obvious case."` Id.
The cases relied upon by plaintiff are either too general to satisfy the exacting standard required by White and S.B., or are easily distinguishable from the facts of our case. Additionally, the Court, upon its own review, has not located a case that would have put defendants on clear notice that the alleged force used in this situation would be excessive. The Court recognizes that "no two cases are exactly alike" and that the Court is not required to find a case "directly on point," but concludes that there is no precedent particularized to the facts of this case that would have put the deputies on notice that their conduct was unconstitutional. Hughes v. Kise/a, 862 F.3d 775, 786-787 (9th Cir. 2016), as amended (June 27, 2017) (internal citations omitted).
Plaintiffs first argument is that "it is clearly established that where there is no need for force, any force used is unreasonable," but "where there is a need for force, the force must be reasonable in light of the circumstances."
None of the cases cited to by plaintiff meet the exacting standard required by S.B., to provide the deputies with the "clear notice" that using the amount of force at issue was unlawful. Id. As a preliminary matter, plaintiff does not even attempt to analogize the facts of the cases cited to the facts of this case to argue that those cases provided the deputies with "clear notice" that the amount of force they used was unlawful. Id. In the Court's own review of the cases cited by plaintiff, none contain sufficiently similar facts to the instant case which might provide such notice. For example, Lolli v. County of Orange, relied on by plaintiff, involved officers who allegedly hit plaintiff with batons, kicked and punched him, bent his spine, sprayed him with pepper spray, and pounded his head to the ground. 351 F.3d 410, 412 (9th Cir. 2003). Here, plaintiff was not hit with a baton, sprayed with pepper spray, nor had his head pounded to the ground. Thus, Lolli is not sufficiently similar to provide the deputies with "clear notice." S.B., 2017 WL 1959983, at *6. Similarly, plaintiff also relies on Nelson v. City of Davis, which involved a plaintiff who suffered permanent injury when he was shot in the eye by an officer who was attempting to disperse remaining students at an apartment complex party. 685 F.3d 867, 872-74 (9th Cir. 2012). Here, the officers did not fire a weapon resulting in injury to the plaintiff, and the plaintiff did not suffer permanent injury. See S.B., 2017 WL 1959983, at *6. Thus, Nelson, nor any of the other cases cited by plaintiff, are sufficiently similar to provide the deputies with "clear notice" that their conduct was unlawful under S.B. 2017 WL 1959983, at *6.
Plaintiffs second argument is that "it is clearly established that in dealing with suicidal or mentally ill subjects, the interest in using force is diminished." [Doc. No. 107, at pp. 29-30 (citingDeorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001); Drummond v. City ofAnaheim, 343 F.3d 1052, (9th Cir. 2003); Glenn v. Washington Cnty., 673 F.3d 864, 871-78 (9th Cir. 2011); Hayes v. Cnty. ofSan Diego, 736 F.3d 1223, 1227-28, 1233-35 (9th Cir. 2013)).] Plaintiff relies on these four aforementioned Ninth Circuit cases, in which the trial courts denied defendants' summary judgment motions on qualified immunity grounds. However, none of those cases could have provided the deputies in this case with "clear notice" that the amount of force they used in this case was unlawful, because the factual circumstances surrounding the arrests in those cases were vastly different than the facts in the instant case, except that they also involved a suicidal threat by a plaintiff.
In Deorle, for example, there were at least thirteen officers at the scene, including a canine team and police dog who barked "aggressively" at plaintiff, causing plaintiff to retreat back into the house. 272 F.3d at 1276. Some officers had been at the scene for thirty to forty minutes, during which time plaintiff had gained, and subsequently relinquished, control of multiple weapons. Id. at 1276-1278. The defendant officer in Deorle fired a twelve-gauge shotgun with "cloth-cased" shots at plaintiff, which resulted in "multiple fractures to [plaintiffs] cranium, loss of [plaintiffs] left eye, and lead shot embedded in [plaintiffs] skull." Id. at 1278. There, the Ninth Circuit denied defendants' motion for summary judgment, finding the officer's force to be excessive, in violation of plaintiffs Fourth Amendment right. Id. Here, however, there were only two officers, no canine team, the encounter lasted less than ten minutes, and there were no shots fired. Thus, the facts presented in Deorle are not sufficiently similar to the facts of this case to provide the deputies with "clear notice" that the conduct at issue herein violated plaintiffs constitutional rights. SB., 2017 WL 1959984, at *6.
Similarly, in Drummond, both plaintiffs fiancee and a neighbor called the police because they feared that plaintiff would hurt himself "by darting out into traffic." 343 F.3d at 1044. There was no mention of a gun or weapon by either caller, yet the officers "knocked [plaintiff] to the ground" and applied force once plaintiff was already handcuffed, causing plaintiff to lose consciousness. Id. Plaintiff did not resist. See id. at 1061. Plaintiff sustained brain damage, which left him in a "permanent vegetative state." Id. at 1055. There, the Ninth Circuit found the officers' force to be "severe" and "wholly unwarranted," and denied qualified immunity. Id. at 1063. By contrast, the officers in this case were told twice by the radio dispatcher that plaintiff had a gun out, the officers did not apply force once plaintiff was handcuffed, and plaintiff concedes that he suffered no serious or permanent injury. [Doc. No. 106-1, at p. 8; Doc. No. 107, at p. 19.] Thus, Drummond is not sufficiently similar to provide the deputies with "clear notice." S.B., 2017 WL 1959984, at *6.
Plaintiff's citations to Glenn and Hayes, supra, also fail because both involve the use of deadly force, and here, no deadly force was used and plaintiff concedes that he suffered no serious or permanent injury, thereby conceding that no deadly force was used on plaintiff. [Doc. No. 107, at p. 19]. Glenn v. Washington Cnty., 673 F.3d at 871-78; Hayes v. Cnty. ofSan Diego, 736 F.3d at 1227-28, 1233-35. In Glenn, the Court noted that there are "no published cases holding it reasonable to use a significant amount of force to try to stop someone from attempting suicide." 673 F.3d at 872 (emphasis in original). "Significant" was defined as "causing serious injury or death." Id. Here, the amount of force used was no more than necessary to handcuff plaintiff's hands behind his back, and plaintiff did not suffer serious injury or death. [Doc. No. 107, at p. 19.] Glenn, therefore, is not sufficient to put the defendants on "clear notice" their conduct was unlawful.
Accordingly, plaintiff's argument that it is clearly established that "in dealing with suicidal or mentally ill subjects, the interest in using force is diminished" fails.
Plaintiff's third argument is that it is "clearly established that the way handcuffs are applied can constitute excessive force." [Doc. No. 107, at p. 30.] Plaintiff misinterprets the "exacting" nature of the applicable standard by framing the inquiry in general terms. As made abundantly clear by both the Supreme Court and the Ninth Circuit, "clearly established law should not be defined at a high level of generality." White, 137 S. Ct. at 552; see also S.B., 2017 WL 1959984, at *5.
Although plaintiff cites numerous cases in support of his general argument, the Court will only address the authority that is binding on this Court. [Doc. No. 107, at pp. 30-31 (citing LaLonde v. Cnty. ofRiverside, 204 F.3d 947, 964 (9th Cir. 2000); U.S. v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982); Meredith v. Erath, 342 F.3d 1057, 1060 (9th Cir. 2003); Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); Alexander v. Cnty. OfLos Angeles, 64 F.3d 1315, 1322-23 (9th Cir. 1995); Baldwin v. Placer Cnty., 418 F.3d 966, 970 (9th Cir. 2005); Wall v. Cnty. of Orange, 364 F.3d 1107, 1109-10 (9th Cir. 2004))]. Notably, none of these cases involve a suicidal and possibly injured plaintiff who was reported to have a gun readily accessible, like the plaintiff in our case. Plaintiff failed to meet his burden to provide this Court with precedent particularized to the facts of this case.
In Meredith, for example, the Ninth Circuit found that extended handcuffing for the duration of a search in a tax-related crime may violate the Fourth Amendment. 342 F.3d at 1063. The Court held:
Furthermore, there is case law in this circuit to support the conclusion that a suspect can be painfully handcuffed in certain circumstances, as summarized below. In Sinclair v. Akins, for example, the Ninth Circuit upheld the district court's grant of qualified immunity due to plaintiff's failure to identify sufficiently specific precedent. No. 14-35617, 2017 WL 2274968, at *2 (9th Cir. May 24, 2017). The court found no precedent establishing that "tight handcuffs alone, without any physical manifestation of injury . . ., where the initial handcuffing was justified, constituted excessive force." Id. Similarly, the Court in Wyant v. City ofLynnwood found that "there is no clearly established right to be free from pain-free, non-injuring force used to effect an arrest." No. C08-283RAJ, 2010 WL 128389, at *4 (W.D. Wash. Jan. 11, 2010).
None of the cases cited to by plaintiff meet the exacting standard required by S.B., to provide the deputies with "clear notice" that the manner in which plaintiffs handcuffs were applied may constitute excessive force. S.B., 2017 WL 1959984, at *3-4. As such, plaintiffs claim that it is "clearly established" that tight handcuffing is constitutionally impermissible fails.
Plaintiffs fourth argument is that the deputies should lose the protection of qualified immunity because "it is clearly established that a person's advisal to deputies of a pre-existing condition which would render handcuffing behind the back painful can make a seizure unreasonable." [Doc. No. 107, at p. 32.] The cited cases, however, are substantially different from the factual circumstances presented in our case, as detailed below. Of the eight cases plaintiff relies on, only four are binding on this Court.
The plaintiff in Blanford, for example, was driving through a residential neighborhood wearing a ski mask, armed with a Civil War-era sword. 406 F.3d at 1112. In an attempt to secure plaintiffs weapon, the deputies shot him. Id. at 1113-14. Because of the unique set of facts presented in Blanford, the Ninth Circuit ultimately granted qualified immunity, holding that no Supreme Court or circuit court precedent existed that would have "put a reasonable officer in the deputies' position on notice" that their actions "in the particular circumstances" were unconstitutional.
Plaintiff also cites to Stocker v. City & County of San Francisco, where a suspect with a shoulder injury was arrested in an airport for public intoxication. See 185 F.3d 869. In this unpublished decision, the Ninth Circuit specifically cautions against citing to this case in the first footnote: "This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3." Id. at *n.1.
In Winterrowd, another case relied upon by plaintiff, the unique facts lead the Ninth Circuit to affirm the district court's denial of qualified immunity. 480 F.3d at 1186. Therein, the officers were performing a pat-down of plaintiff and did not have probable cause to arrest; there was no indication that plaintiff was currently armed or posed a safety threat; the officers applied greater force after plaintiff screamed in pain; and the officers admitted that they could have effectuated the pat-down without forcing plaintiff's arms behind plaintiff's back. Id. 1181-86. This is hardly comparable to the facts of our case. Here, two deputies were responding to a dispatch call about a suicidal suspect who reportedly had a gun and who exited his house with a visibly bloody napkin. [Willis Dep. 59:1-3; Myers Dep. 38:18-22.] When plaintiff resisted putting his hands behind his back, the deputies brought him to the ground to handcuff him. [Willis Dep. 68: 15-20; Myers Dep. 48:25-49:4.] Further, both parties agree that the deputies were legally justified to arrest plaintiff, and that plaintiff resisted arrest. [Doc. No. 76, at p. 1; Strem Dep. 96:21-24; Willis Dep. 66:16-17.]
This Court has located no case in which officers, acting under similar circumstances, were found to have used excessive force. Accordingly, the law was not clearly established such that the defendant Sheriff Deputies Willis and Myers would have "clear notice" as of September 24, 2014 — the morning of the alleged violation — that their conduct was unconstitutional under the circumstances of this case. S.B., 2017 WL 1959984, at *3-4. The Court is thereby precluded from stripping defendants of qualified immunity. Considering all the facts of this case and the relevant law, the Court grants defendants' Motion for Summary Judgment [Doc. No. 106] as to the excessive force claim on the basis of qualified immunity.
In discussing the order in which to engage the two inquiries of the qualified immunity analysis, the Ninth Circuit has held that "if the answer to either is `no,' then the officers cannot be held liable for damages." Glenn v. Washington Cty., 673 F.3d at 870 (citing Pearson, 555 U.S. at 236). Because the asserted rights were not clearly established, the Court does not need to address whether the asserted rights were violated. Reichle v. Howards, 566 U.S. 658 (2012) ("courts may grant qualified immunity on the ground that a purported right was not `clearly established' by prior case law, without resolving the often more difficult question whether the purported right exists at all") (citing Pearson, 555 U.S. at 227).
In addition to his federal excessive force claim, plaintiff also asserts a state law battery claim against defendants. [Doc. No. 1, at pp. 9-10.] Defendants concede in the Motion for Summary Judgment that "qualified immunity does not apply to [p]laintiffs state law claim." [Doc. No. 106-1, at p. 8.] A district court may decline to exercise supplemental jurisdiction if the "court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). The Court has original jurisdiction over the federal excessive force claim, and hereby grants defendants' Motion for Summary Judgment as to that claim only. The Court does not, however, have original jurisdiction over the remaining state law claim, and declines to exercise supplemental jurisdiction over plaintiffs state law battery claim.
The Court grants defendants' Motion for Summary Judgment as to the federal excessive force claim against defendants San Diego Sheriff Deputies Vernon Willis, Peter Myers, and their employer, the County of San Diego. Because there are no remaining federal claims, the Court declines to exercise jurisdiction over the remaining state law battery claim. Accordingly, the Court dismisses plaintiffs state law claim for battery against defendants.
