LAUREL BEELER, Magistrate Judge.
The plaintiff, who is representing himself, sued the City and County of San Francisco ("CCSF") after he was allegedly detained and arrested without cause, handcuffed, and left in a hot patrol car for a significant period of time.
The plaintiff asserted three claims under 42 U.S.C. § 1983: (1) unlawful search and seizure in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution; (2) excessive force in violation of his rights under the Fourth and Fourteenth Amendments; and (3) violations of his right to petition the government for redress of grievances under the First Amendment.
The CCSF now moves for summary judgment in its favor on all of the plaintiff's claims.
Under Civil Local Rule 7-1(b), the court can decide motion without oral argument. The court grants the CCSF's motion for summary judgment on all of the plaintiff's claims. But, the court grants the plaintiff's request (raised in his opposition to the motion for summary judgment) to amend his complaint to name the individual officers involved in the incident.
On October 16, 2016, the plaintiff left his home and walked down O'Farrell Street towards downtown San Francisco.
Other officers arrived and yelled, "Answer his fucking questions asshole! You're not under arrest asshole!"
One officer searched the plaintiff, "putting his hands down inside [the plaintiff's] pants past the waistband" while another "illegally searched [his] back pockets and clothing."
The officers shoved the plaintiff into the back of a police car "sideways pushing [his] head hard and putting painful pressure on it and [his back]."
The officers took the plaintiff into the hospital in handcuffs, pulling up on his fingers.
The plaintiff did not file a government complaint with the CCSF related to the incident.
The CCSF submitted the police report from the October 16 incident and a declaration by one of the arresting officers. The police report described the encounter with the plaintiff as follows:
In his declaration, Officer Taft described his encounter with the plaintiff as follows:
The court must grant a motion for summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49.
The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) ("When the nonmoving party has the burden of proof at trial, the moving party need only point out `that there is an absence of evidence to support the nonmoving party's case.'") (quoting Celotex, 477 U.S. at 325).
If the moving party meets its initial burden, the burden then shifts to the non-moving party to produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323.
In ruling on a motion for summary judgment, the court does not make credibility determinations or weigh conflicting evidence. Instead, it views the evidence in the light most favorable to the non-moving party and draws all factual inferences in the non-moving party's favor. E.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
The CCSF moves for summary judgment on the following grounds: (1) the plaintiff's first cause of action under Section 1983 fails because there is no evidence that the CCSF has an unconstitutional policy of illegal detention; (2) the plaintiff's second cause of action under Section 1983 fails because there is no evidence that the CCSF has an unconstitutional policy of excessive force, and handcuffing in connection with detention is not a Fourth Amendment violation; (3) the plaintiff's third cause of action under Section 1983 fails because there is no evidence that the CCSF has an unconstitutional policy of denying the right to petition the government for redress of grievances; and (4) the plaintiff's state-law claims are barred by his failure to file a government claim before bringing this lawsuit.
The court grants the summary-judgment motion as to all of the plaintiff's claims against the CCSF. The court will allow the plaintiff to file an amended complaint (on his federal claims only) naming the individual police officers involved in the incident.
The CCSF is the only named plaintiff in the operative complaint.
The court grants the CCSF's motion because the plaintiff has not produced evidence to support his claims that the CCSF has unconstitutional policies of illegal detention, excessive force, or denying individuals the right to petition the government for redress of grievances, and in any event, the policies are not unconstitutional.
Local governments can be sued under § 1983 if the public entity maintains a custom, practice, or policy that amounts to deliberate indifference to a plaintiff's constitutional rights, and the policy results in violation of a plaintiff's constitutional rights. Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 690-91 (1978). There are three ways to show a policy or custom:
Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quotation omitted). The practice or custom must consist of more than "random acts or isolated events" and instead, must be the result of a "permanent and well-settled practice." Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1988), overruled on other grounds by Bull v. City and Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010); see City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Thus, "a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless" there is proof that the incident "was caused by an existing, unconstitutional municipal policy . . . ." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
The plaintiff's constitutional claims against the CCSF are based on his personal experience with the SFPD and interactions between other individuals and police officers that he witnessed. During his deposition, the plaintiff testified as follows:
SFPD Acting Captain Kathryn Waaland submitted a declaration in support of the CCSF's motion.
Rather, the plaintiff points to his own interactions with the SFPD and incidents he observed in San Francisco between the SFPD and other unnamed people to support his argument that there is a longstanding practice or custom of detaining people without cause.
In the early 1990's, police officers stopped the plaintiff "for no reason" when he was walking into a concert.
Later in the early 1990's, SFPD officers took the plaintiff out of his seat at Candlestick Park during a San Francisco Giants game, handcuffed him, and put him in a van.
On a New Year's Eve in the late 1990's, police officers stopped the plaintiff on Polk street, handcuffed him, and put him in a van.
In 2004, the police arrested the plaintiff at his then-residence on Clement Street.
In 2017, the police stopped the plaintiff when he was trying to enter AT&T Park for a Giants game and told him "someone had accused [him] of stealing money."
Sometime between 2012 and 2014, the police broke down the plaintiff's door at his apartment at 516 O'Farrell Street after someone reported that he tried to hit them with a baseball bat.
There was a second incident at 516 O'Farrell Street when the plaintiff hit someone in the head with a baseball bat.
The plaintiff fails to raise a genuine issue of material fact that the officers' conduct was pursuant to an unconstitutional policy or custom. Accordingly, the court grants summary judgment in favor of the CCSF on the plaintiff's federal claims.
To support his first claim, the plaintiff points to his "history of being unlawfully and unreasonably detained by SFPD over three decades."
"Proof of random acts or isolated incidents of unconstitutional action by a non-policymaking employee are insufficient to establish the existence of a municipal policy or custom." Henderson v. Cty. and Cnty. of San Francisco, No. C-05-234 VRW, 2006 WL 3507944, at *8 (N.D. Cal. Dec. 1, 2006). (internal citations omitted). In Henderson v. City and County of San Francisco, the plaintiffs, who were present and former inmates of the San Francisco County Jail, brought due-process claims against individual sheriff's deputies, the City and County of San Francisco, the San Francisco Sheriff's Department, and the San Francisco Department of Public Health Services. Id. at *1. The plaintiffs detailed six instances of excessive force and indifference to their medical needs over the course of a year, and declarations submitted at summary judgment described "approximately 17 other incidents over the course of 29 months." Id. at *1-3, 11. The court denied summary judgment as to the individual deputies, finding that material issues of fact remained regarding how much force was necessary during the encounters. Id. at *5. But the court granted summary judgment in favor of the municipal defendants because the evidence was not sufficient to establish that they maintained an unconstitutional policy or practice. Id. at 11.
Here, the plaintiff described eight personal encounters with the police over the course of 30 years and testified that he witnessed other people being detained without cause (without any details about the names of these individuals, the officers who detained them, or any other witnesses). The plaintiff's own experiences and the alleged instances he witnessed fail to demonstrate a policy of detaining individuals without probable cause "founded upon practices of sufficient duration, frequency, and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The court grants the defendant's motion for summary judgment as to the plaintiff's first claim.
The plaintiff's argument that the CCSF maintains a custom of using excessive force is based on the police's handcuffing him roughly and pulling up on his fingers, causing "excruciating pain and injury"
The plaintiff's third claim is that the CCSF "violated [his] right to petition government for a redress of grievances" in violation of the First Amendment.
Because the only evidence the plaintiff presents to support his Section 1983 claims for excessive force and First Amendment violations against the CCSF pertains to a single incident of allegedly unconstitutional action by a non-policymaking employee, these claims cannot survive summary judgment. Davis, 869 F.2d 1233. The court grants summary judgment in favor of the CCSF on these claims.
The plaintiff raises four state-law claims: (1) a violation of the Bane Act Cal. Civ. Code § 52.1; (2) Assault; (3) Battery; and (4) Negligence.
With some exceptions not relevant here, the GCA requires a party seeking to recover money damages from a public entity or its employees to present a written claim for damages to the entity within six months after accrual of the claim before filing suit in court. Cal. Gov't Code §§ 911.2(a), 945.4; see, e.g., Cardenas v. Cty. of Alameda, No. C 16-05205 WHA, 2017 WL 1650563, at *5 (N.D. Cal. May 2, 2017) (GCA presentment requirement applies to state-law claims for negligence). "`Where compliance with the [GCA] is required, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general [dismissal].'" Heyward v. BART Police Dep't, No. 3:15-cv-04503-LB, 2015 WL 9319485, at *4 (N.D. Cal. Dec. 23, 2015) (quoting Mangold v. Cal. Publ. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995)). "Only after the public entity has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity or its employees." Avila v. California, 2015 WL 6003289, at *7 (E.D. Cal., 2015) (citing Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007)).
At his deposition, the plaintiff testified that he did not file a government claim related to the October 16, 2015 incident:
With its motion for summary judgment, the CCSF submitted a declaration by Matthew Rothschild, Chief of the Claims Division in the San Francisco City Attorney's Office.
The fact that the plaintiff did not submit a government claim is undisputed, as he did not cite to any evidence in his opposition showing that he did.
In his Fourth Amended Complaint, the plaintiff did not name the individual officers involved in his October 16, 2015 encounter with the SFPD.
Under Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); see Sonoma Cnty. Ass'n of Retired Employees v. Sonoma Cnty., 708 F.3d 1109, 1118 (9th Cir. 2013). "[L]eave to amend should be granted if it appears at all possible that the plaintiff can correct the defect." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1988). "The rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more prone to make errors in pleading than the person who benefits from the representation of counsel." Crowley v. Bannister, 734 F.3d 967, 977-78 (2013) (internal citations omitted).
"A district court abuses its discretion by denying leave to amend where the complaint's deficiencies could be cured by naming the correct defendant." Id. at 978 (citing Lopez v. Smith, 203 F.3d 1122, 1130-31 (2000); Lucas v. Dep't of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995)). Here, the plaintiff knows the identities of the officers (as evidenced by his use of their names in his filings), and could cure the deficiency in his pleading by naming them.
The last date to amend the pleadings was March 15, 2019.
The court grants the plaintiff leave to file an amended complaint naming the individual officers. Any amended complaint must not name the CCSF (because the court has granted summary judgment on those claims) and must not include any state-law claims because they are barred by the plaintiff's non-compliance with the GCA.
The court grants the defendant's motion for summary judgment and dismisses the plaintiff's federal and state-law claims against the CCSF with prejudice and without leave to amend. The court grants the plaintiff's request to amend his complaint (only as to the federal claims) to name the individual officers. If the plaintiff wishes to file an amended complaint, he must do so by August 26, 2019. If he does not, the court will close the case and enter judgment in favor of the CCSF.
