LAUREL BEELER, Magistrate Judge.
In the early hours of December 15, 2015, Sonoma County Sheriff Deputies Michael Yoder and Charles Blount arrived at the home of Dane Zeen. Earlier that night, Mr. Zeen — an eighteen-year-old who had suffered for many years from depressive disorder — had texted a friend that he was thinking of hanging himself. The friend called 911, and the Sonoma County Sheriff's Office dispatched Deputies Yoder and Blount to Mr. Zeen's home to conduct a welfare check. Deputy Yoder arrived first and spoke with Mr. Zeen's stepfather, Tim LaRose, who told him that Mr. Zeen was out in his truck. Deputy Yoder went out to speak with Mr. Zeen, asked him to step out of the truck and handcuffed him for officer safety, spoke more with Mr. LaRose (after Deputy Blount arrived and stayed with Mr. Zeen), and determined that Mr. Zeen should be put on a 72-hour mental-health hold pursuant to California Welfare & Institutions Code § 5150.
Those facts are not in dispute. What is in dispute is what happened next. After Deputy Yoder told Mr. Zeen that he was placing him on a Section 5150 hold, Mr. Zeen dug in his heels (literally) and refused to move and go with the deputies. Deputy Yoder held onto Mr. Zeen's arm and tried to get him to walk. The defendants say that Mr. Zeen tried to pull away from Deputy Yoder, causing Deputy Yoder to lose his balance and start falling down, which in turn caused Mr. Zeen to fall down to the ground as well. Mr. Zeen and Mr. LaRose say that Deputy Yoder pulled or threw Mr. Zeen to the ground face-first while he was handcuffed. It is undisputed that as a result of the fall, Mr. Zeen bled heavily and broke three teeth, which were jammed into their sockets under his nose.
Mr. Zeen brought claims against (1) Deputies Yoder and Blount under 42 U.S.C. § 1983 for excessive force, (2) Sonoma County Sheriff Steve Freitas under 42 U.S.C. § 1983 for supervisory liability, and (3) the County of Sonoma and Sheriff Freitas for municipality liability under the doctrine of Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). The defendants moved for summary judgment. Mr. Zeen does not oppose the defendants' motion with respect to Deputy Blount,
Mr. Zeen states that "[f]or the purposes of [the defendants' summary-judgment] motion, [he] does not dispute the defendants' recitation of the facts preceding the point at which he was placed on a 72-hour hold."
In the early morning hours of December 15, Michael Yoder, then a deputy sheriff with the Sonoma County Sheriff's Office (now retired), received a call from dispatch asking him to respond to a welfare check on a suicidal subject.
Deputy Yoder responded to a rural home on McFarland Drive in Sebastopol, Sonoma County, California.
Mr. Zeen told Deputy Yoder that he was "fucked up inside."
Mr. LaRose told Deputy Yoder that he was planning on taking Mr. Zeen to Psychiatric Emergency Services and that he had taken Mr. Zeen there in the past.
Deputy Yoder (and possibly Deputy Blount) placed his hand in the crook of Mr. Zeen's elbow.
According to the defendants, Mr. Zeen dropped his weight, and Deputy Yoder had to pull him up to regain his footing.
According to Mr. Zeen, Deputy Yoder pulled or threw him to the ground face-first while he was handcuffed. Mr. Zeen testified, "They started taking me away at the same time, and then he pulls me to the ground face first, and that's all I remember."
After Mr. Zeen hit the ground, the parties had the following exchange:
After Mr. Zeen hit the ground, a large amount of blood started coming from his mouth.
Both Deputy Yoder and Deputy Blount were wearing body cameras that recorded some of this incident. The parties submitted the footage from the body cameras as evidence for the court to consider on this motion.
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. v. Fritz Cos., 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 `touchstone of the Fourth Amendment is reasonableness.'" Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). "Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment 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." Graham v. Connor, 490 U.S. 386, 396 (1989) (citations and some internal quotation marks omitted). To do so, a court must evaluate "the facts and circumstances of each particular case, 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 he is actively resisting arrest or attempting to evade arrest by flight." Id. (citations omitted). The Graham factors, however, are not exhaustive. George v. Morris, 736 F.3d 829, 837-38 (9th Cir. 2013). "[T]here are no per se rules in the Fourth Amendment excessive force context." Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citing Scott v. Harris, 550 U.S. 372, 383 (2007)). Courts must therefore "examine the totality of the circumstances and consider `whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'" Bryan v. McPherson, 630 F.3d 805, 826 (9th Cir. 2010) (citations omitted).
"The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)); see id. at 396 ("`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' . . . violates the Fourth Amendment.") (citations omitted). This is because "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97.
"`[T]he doctrine of 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 would have known.'" Mattos, 661 F.3d at 440 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). "The purpose of qualified immunity is to strike a balance between the competing `need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.'" Id. (quoting Pearson, 555 U.S. at 231). Qualified immunity "is `an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009) (emphasis in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). "Under qualified immunity an officer will be protected from suit when he or she `makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances.'" Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).
"[Q]ualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" Ziglar v. Abbasi, 137 S.Ct. 1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). "The doctrine of qualified immunity gives officials `breathing room to make reasonable but mistaken judgments about open legal questions.'" Id. at 1866 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). "[I]f a reasonable officer might not have known for certain that the conduct was unlawful[,] then the officer is immune from liability." Id. at 1867.
In determining whether an officer is entitled to qualified immunity, courts consider (1) whether the officer violated a constitutional right of the plaintiff, and (2) whether that constitutional right was "clearly established in light of the specific content of the case" at the time of the events in question. Mattos, 661 F.3d at 440 (citation omitted). Courts may exercise their sound discretion in deciding which of these two prongs should be addressed first. Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Regarding the second prong, the Supreme Court has cautioned that "`clearly established law' should not be defined `at a high level of generality'" but instead "must be `particularized' to the facts of the case." White v. Pauly, 137 S.Ct. 548, 552 (2017) (citations omitted). The Supreme Court has held that "[a]lthough [its] case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (citing White, 137 S. Ct. at 551). "Use of excessive force is an area of the law `in which the result depends very much on the facts of each case,' and thus police officers are entitled to qualified immunity unless existing precedent `squarely governs' the specific facts at issue." Id. at 1153 (citing Mullenix v. Luna, 136 S.Ct. 305, 312 (2015)).
Viewing the evidence and drawing all inferences in Mr. Zeen's favor, the relevant facts are these: Deputy Yoder seized Mr. Zeen and cuffed his hands behind his back. Mr. Zeen was not suspected of having committed any crime. He posed no danger to the deputies. He did not resist being handcuffed. He did not try to flee.
The Ninth Circuit addressed a similar situation in Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003). Meredith involved IRS agents who were executing a search warrant at a three-story building in connection with an investigation into suspected income-tax violations. Id. at 1060. A building resident confronted the agents and asked to see a search warrant. Id. One of the agents "grabbed [the resident] by her arms, forcibly threw her to the ground and, twisting her arms, placed handcuffs on her wrists." Id. The Ninth Circuit held that, because the crimes the agents were investigating were nonviolent, the resident posed no safety risk, and she made no attempt to leave the scene, the IRS agent's actions in grabbing her by her arms, throwing her on the ground, and twisting her arms to handcuff her, constituted excessive force and violated the Fourth Amendment. Id. at 1061. The Ninth Circuit further held that it was clearly established that the agent's actions violated the Fourth Amendment and that the agent thus was not entitled to qualified immunity. Id.
If the events in Meredith constituted unconstitutional excessive force, the events in this case do too. There was less justification for the use of force here than there: unlike the resident there in Meredith, Mr. Zeen was already handcuffed and subject to police control before the police pulled or threw him on the ground. The police also used more force here than there: Mr. Zeen suffered significantly more serious injuries than did the resident in Meredith, which (drawing all inferences in Mr. Zeen's favor) suggests that the police used more force against him here than the IRS agent used there.
The defendants do not seriously contest that, if Deputy Yoder pulled or threw Mr. Zeen down to the ground the way Mr. Zeen maintains he did, it would constitute an unconstitutional use of excessive force. Nor could they. The law prohibiting such acts is clearly established (and therefore also forecloses a claim of qualified immunity). Meredith, 342 F.3d at 1061; accord, e.g., Winterrowd v. Nelson, 480 F.3d 1181, 1184 (9th Cir. 2007) (affirming denial of summary-judgment and denial of qualified immunity in an excessive-force case because "[n]o reasonable officer could conclude that an individual suspected of a license plate violation posed a threat that would justify slamming him against the hood of a car"); Sheehan v. Bay Area Rapid Transit, No. 14-cv-03156-LB, 2016 WL 777784, at *12 (N.D. Cal. Feb. 29, 2016) (denying summary judgment and qualified immunity in an excessive-force case because even where a detainee is trying to twist free from an officer's grasp, "it should have been sufficiently clear to a reasonable official that he could not rightfully slam her to the floor") (internal quotation marks and brackets omitted) (citing Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994)). Instead, the defendants focus on a separate question, asking, if Deputy Yoder lost his balance and fell while holding Mr. Zeen and thereby caused Mr. Zeen to hit the ground as well, would that constitute an unconstitutional use of excessive force? That argument, however, assumes that it is undisputed that Deputy Yoder fell accidentally, as opposed to his intentionally pulling or throwing Mr. Zeen down to the ground. That fact is not undisputed. Mr. Zeen and Mr. LaRose both testified that Deputy Yoder either pulled or threw Mr. Zeen on the ground, and Mr. LaRose also contemporaneously described the incident seconds after it happened as Deputy Yoder "slam[ming] him that hard" and "two big guys throw[ing] down a hundred-pound kid." The defendants cite no authorities that suggest that Mr. Zeen's and Mr. LaRose's statements and testimony are insufficient to raise a dispute of material fact as to whether the incident was an intentional use of force as opposed to an accident. Cf. Winterrowd, 480 F.3d at 1186 ("[w]hile the officers tell a different story, we must accept [plaintiff]'s version of the event" on a summary-judgment motion).
The defendants also cite to the body-camera footage of the incident to argue that the facts are undisputed. Not so. As the defendants' own forensic expert attests, Deputy Yoder and Mr. Zeen were out of view of the body cameras when Mr. Zeen started to fall.
The material facts in this case are in dispute. Drawing all factual inferences in favor of Mr. Zeen as the non-moving party, the court cannot say as a matter of law that Deputy Yoder's actions were reasonable or that they did not violate clearly established law. The court denies summary judgment. Cf. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) ("`Because such [cases] nearly always require[] a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.'") (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)).
Liability against a government entity starts from the premise that there is no respondeat superior liability under Section 1983, i.e., no entity is liable simply because it employs a person who has violated a plaintiff's rights. See, e.g., Monell, 436 U.S. at 691; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Local governments can be sued directly under Section 1983 only if the public entity maintains a policy or custom that results in a violation of plaintiff's constitutional rights. Monell, 436 U.S. at 690-91. To impose Monell entity liability under Section 1983 for a violation of constitutional rights, a plaintiff must show that: (1) the plaintiff possessed a constitutional right and was deprived of that right, (2) the municipality had a policy, (3) the policy amounts to deliberate indifference to the plaintiff's constitutional rights, and (4) the policy was the moving force behind the constitutional violation. See Plumeau v. Sch. Dist. # 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
The Ninth Circuit has explained how a policy may be proved:
Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. City and Cty. of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)). 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).
Mr. Zeen presents only two pieces of evidence in support of his claim against the County of Sonoma. The first is that between 2011 and 2015, there were 1666 reported use-of-force reports at the County Sheriff's Office, and that only two of these incidents resulted in a finding that a Sheriff's Office employee violated the use-of-force policy.
Second, Mr. Zeen points to one prior use-of-force incident involving the Sonoma County Sheriff's Office and an individual named Esa Wroth.
Additionally, even if Lieutenant Toby had sufficient policymaking authority to represent the County, the mere fact that the County determined that the Wroth incident was "within policy" is insufficient to establish that the County had a policy of deliberate indifference to constitutional rights. "Finding that an officer acted within policy does not alone amount to Monell ratification." Weishaar v. County of Napa, No. 14-cv-01352-LB, 2016 WL 7242122, at *14 (N.D. Cal. Dec. 15, 2016) (citing cases). "In other words, in order for there to be [Monell] ratification, there must be `something more' than a single failure to discipline or the fact that the policymaker concluded that the defendant officer's actions were in keeping with the applicable policies and procedures." Id. (quoting Garcia v. City of Imperial, No. 08cv2357 BTM(PCL), 2010 WL 3911457, at *2 (S.D. Cal. Oct. 4, 2010)). "This `something more' may be an `obviously flawed investigation.'" Id. (citing Garcia, 2010 WL 3911457, at *2). "It may exist where the final decision-maker `actively participated' in the challenged conduct." Id. (citing Lytle v. Carl, 382 F.3d 978, 986-88 (9th Cir. 2004)). "`Extreme factual situations' can also support ratification liability." Id. (citing Garcia, 2010 WL 3911457, at *2). "But generally, to hold a government entity `liable under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983,' thereby creating an `end run around Monell.'" Id. (quoting Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992)). Here, Mr. Zeen has presented no evidence of extreme facts or special circumstances regarding the Wroth incident that could support a finding that the County had a policy of deliberate indifference to constitutional rights that caused Mr. Zeen's injuries. Cf. id. The court therefore grants summary judgment on the Monell claim.
"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) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)). "Supervisors can be held liable for: 1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others." Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (citing Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). In other words, a supervisor can be held liable in his individual capacity "if he set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict the constitutional injury." Larez, 946 F.2d at 646 (citations and internal quotation marks and brackets omitted). A supervisor can be held liable only for his or her own personal conduct: "there is no respondeat superior liability under section 1983." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citations omitted).
Mr. Zeen offers no evidence that Sheriff Freitas personally participated in any of the events on December 15, 2015. Nor does Mr. Zeen offer any evidence about Sheriff's Freitas's training, supervising, or controlling Deputies Yoder or Blount, that he acquiesced in their conduct, or that he showed a reckless or callous indifference to the rights of others. Mr. Zeen's statistical evidence is insufficient for his claims against Sheriff Freitas for the same reason it is insufficient for his claim against the County, and Mr. Zeen submits no other evidence that Sheriff Freitas personally participated in the conduct of which he complains.
For the foregoing reasons, the court denies summary judgment as to Deputy Yoder and grants summary judgment as to Deputy Blount, Sheriff Freitas, and the County.
As described below, both Deputy Yoder and Deputy Blount were wearing body cameras that recorded footage of the incident, which the defendants have submitted as an exhibit to their summary-judgment motion. Schott Decl. Ex. C (on file with court). Mr. Zeen's counsel made an informal written transcript of a portion of the body camera footage. See Schwaiger Decl. — ECF No. 60-1 at 2 (¶ 6). The defendants have not disputed the accuracy of the transcript in their reply. See Defs. Reply — ECF No. 62. The court quotes Mr. Zeen's counsel's transcript here solely as a convenience. The court does not mean to suggest that this transcript has no errors (e.g., misidentifying a speaker or omitting words where two people were speaking on top of each other) or that it is controlling over the videos. The court has watched the underlying videos in evaluating the defendants' motion, and any errors that the transcript may contain do not affect the court's decision on the motion.
Mr. Zeen further states that not one employee was disciplined for any use-of-force incident during this period, id. (citing Clark Decl. Ex. B — ECF No. 60-2 at 17), but that assertion is somewhat misleading. The interrogatory responses that Mr. Zeen cites construed the interrogatories as asking whether there were any employees who were disciplined and then continued to remain employed with the Sheriff's Office. The responses did not count employees who left the Sheriff's Office. Clark Decl. Ex. C — ECF No 60-2 at 22. At least one employee who was involved in a use-of-force incident was released from employment from the Sheriff's Office, and least one other employee who was involved in a use-of-force incident quit the Sheriff's Office because he was going to be terminated. Freitas Dep. pp. 78-82, 120-21 — ECF No. 60-1 at 85-86, 90.
