VIRGINIA A. PHILLIPS, District Judge.
The Court has received and considered all Defendants' papers filed in support of their Motion for Summary Judgment and Plaintiffs' evidentiary objections to Defendants' Motion for Summary Judgment. A hearing on this matter took place on September 10, 2012. Both parties' counsel submitted on the Court's tentative order without oral argument.
Plaintiffs Vanessa Morales, Raquel Padilla, Emiliano Michael De Contreras, and Mario Diaz filed a complaint on September 7, 2011 (Doc. No. 1) and an amended complaint on November 4, 2011 (Doc. No. 17), both of which alleged claims for civil rights violations under 42 U.S.C. § 1983, violations of the Americans with Disabilities Act ("ADA"), assault, battery, intentional infliction of emotional distress, negligent supervision and hiring, negligence, and abuse of process. The Court granted Defendants' unopposed motion to dismiss, with leave to amend, on December 27, 2011 (Doc. No. 25). Plaintiffs filed their Second Amended Complaint on January 17, 2012 (Doc. No. 26), and their Third Amended Complaint ("TAC") on February 10, 2012, which named as Defendants City of Rialto, Officers Michael Mastaler, William Wilson, Michael Lee, and Scott Chilton (all in their individual and official capacities),
On April 9, 2012, the Court granted, with leave to amend, the motion to dismiss Plaintiffs' first, fourth, eighth, ninth, and tenth claims against the County, the Sheriff's Department, the DA's Office, WVDC, and ARMC. (Doc. No. 42.)
On April 16, 2012, Plaintiffs filed their Fourth Amended Complaint ("FAC") against the same Defendants (Doc. No. 48); on April 25, Plaintiffs stipulated to dismiss from the FAC all claims against the DA's Office, ARMC, and the County, except those against the Sheriff's Department for its operations of WVDC. (Doc. No. 51.) Since then, Plaintiffs, except for De Conteras, stipulated to dismiss their fourth and fifth claims as against the County (June 18, 2012 Stipulation (Doc. No. 62)), and De Contreras stipulated to dismiss all claims against the County, its Sheriff's Department, and WVDC (September 6, 2012 Stipulation (Doc. No. 105)). All Plaintiffs, including De Contreras, have stipulated to dismiss from the FAC Defendants Mark Kling
On August 13, 2012, the remaining Defendants moved for summary judgment (Doc. No. 88, re-filed August 23 at Doc. No. 99) on the remaining FAC claims, summarized below:
Along with its Motion for Summary Judgment ("MSJ"), Defendants filed a declaration of Jon F. Hamilton (Doc. No. 99-6) attaching Exhibits A-Y (Doc. Nos. 99-2, 3, 4) and a Statement of Undisputed Facts ("SUF" (Doc. No. 99-7)). On August 20, the deadline for filing an opposition, Plaintiffs filed their Objection to Evidence (Doc. No. 96) and no other documents. Defendants replied on August 27. (Doc. No. 102.)
A motion for summary judgment shall be granted when 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(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Instead, the moving party's burden is met by pointing out there is an absence of evidence supporting the non-moving party's case. Id.
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial, 14:144. "This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir.2010) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). "The non-moving party must do more than show there is
A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987).
Plaintiffs' counsel, Elena C. Correa, electronically filed Plaintiffs' objections to Defendants' MSJ evidence. Correa did not sign the document, either by hand or electronically, nor did she submit a mandatory chambers copy of the document. Thus, the document Correa submits is in violation of (1) Federal Rule of Civil Procedure 11(a) ("Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name...."); (2) Local Rule 5-4.3.4 (requiring electronically filed documents to be signed and listing the acceptable forms of signature); (3) Local Rule 5-4.5 (requiring delivery to chambers of a duplicate in paper format of all electronically filed documents); (4) Court's Standing Order ¶ 7 (Doc. No. 4) (requiring the same); and (5) Local Rule 11-1 (requiring counsel's signature on all documents except for declarations).
Plaintiffs object on hearsay grounds to the declarations of Rialto Police Corporal John Black (Ex. C); Rialto Police Sergeant Christopher Hice (Ex. K); former Rialto Jailer Libni Cerdenio (Ex. M); Physicians Assistant Thomas Manning (Ex. N); Rialto Chief of Police William "Tony" Farrar (Ex. T); former Rialto Police Officer Michael Lee (Ex. W); and Rialto Police Officer Michael Mastaler (Ex. X). Plaintiffs also object to the following documentary evidence: Taser Information Data (Ex. L); Police Report and Supplemental Report (Ex. P); and the Transcript of 911 Call (Ex. Q).
Even if Correa had submitted Plaintiffs' objections without the numerous deficiencies described above, the Court nevertheless would overrule them. Plaintiffs, instead of identifying the objected-to portions of the declarations, provide the page range for the entire exhibit (or inaccurate pages that do not match the objection).
Plaintiffs' objections submitted by Correa are utterly inadequate in procedure, form, and substance, and are thus overruled.
"Any party who opposes [a motion for summary judgment] shall serve and file with the opposing papers a separate document containing a concise `Statement of
On August 14, 2010, at approximately 11:01 p.m., 13-year-old M.M. called 9-1-1 and reported to the Rialto Police Department that two men were fighting at 200 S. Linden Ave, Apt. 12T, and that one man, who M.M. identified as "Emiliano," had a knife. (SUF ¶¶ 1, 2; Ex. B at 21-22 (M.M. Dep.).) Officers Michael Lee and Michael Mastaler responded to M.M.'s call and, at approximately 11:08 p.m., were approaching the apartment as they heard M.M. call out for them to "hurry." (SUF ¶¶ 3, 4, Ex. B at 17.)
The officers knocked on the door to apartment 12T and announced themselves as police officers, at which time they heard yelling and banging from inside the apartment. (SUF ¶¶ 5, 6.) Lee went around to the side of the apartment, jumping over a wall to gain access to an open sliding glass door. (SUF ¶ 7.) Roughly five to ten seconds after knocking, Mastaler broke down the front door and entered at the same time that Lee entered from the side door; both officers had their firearms drawn as they entered the apartment.
The officers perceived that, within seconds of their entry, De Contreras and Diaz recognized them as police officers. (SUF ¶ 11.) Defendants' SUF describes the following events, some of which are contradicted by Defendants' submitted evidence, as described below. "Upon seeing the officers in the apartment, Diaz immediately put his hands up and did not move" (SUF ¶ 13; see also Ex. G at 92 (Diaz Dep.)), at which point the officers yelled "commands for the males to get to the ground." (SUF ¶ 15.) Lee, observing that De Contreras was not holding a knife, holstered his firearm and drew his taser. (SUF ¶ 16.) According to Lee, "De Contreras then, with his hands jerking from the side of his head forward, took an aggressive step towards
Defendants' submitted evidence describes these events with some variation: According to Lee and Mastaler, Diaz "dropped to the ground" and became compliant as soon as he recognized the officers' presence. (Ex. D. at 32; Ex. E at 57.) According to Diaz, both he and De Contreras ceased fighting, "quickly stopped in our place" and "just stood there." (Ex. G at 92.) According to De Contreras, Diaz "sat on the couch and put his hands up" while both De Contreras and Diaz tried to tell the officers that they were deaf. (Ex. F at 81 (De Contreras Dep.).) Lee recounts that De Contreras "moved to the middle of the room" and "then approached" the officers, with his hands positioned "as if [he were] ready to fight." (Ex. D at 33.) Mastaler states that De Contreras "stood up" and then "rushed" him. (Ex. E. at 57.) Both Lee and Mastaler recall that De Contreras advanced towards them and that Mastaler pushed De Contreras away, which is when Lee switched from his firearm to his taser and ordered De Contreras to get on the ground. (Ex. D. at 34-35; Ex. E at 57-58.) De Contreras did not comply and, at 11:16 p.m., Lee fired his taser at De Contreras. (Ex. E at 63.; Ex. K 912 (Hice Decl.).)
The following facts regarding what occurred after Lee first fired his taser and approximate time measurements are established by the video recording from Lee's taser. (See Ex. J (Video Recording from Officer Lee's Taser) (filed manually).)
According to Mastaler, while on the ground after the first tasing, De Contreras "was struggling and moving and making some type of noise" (Ex. E at 64); Lee believed that De Contreras was trying to extricate the taser darts from his chest (SUF ¶ 24). Neither Lee nor Mastaler,
After De Contreras was handcuffed, one of the officers "put [Diaz] on the floor, face down[,]" handcuffed him, and then sat him up on the couch while the officers "dragged [De Contreras] out" of the apartment (Ex. G at 93-94) and placed him in the back of Lee's patrol car (SUF ¶ 37). At 11:30 p.m., Lee began driving De Contreras from the apartment to the Rialto Police Station, where they arrived at 11:36 p.m. (SUF ¶¶ 37, 39.) Lee does not recall who decided De Contreras should be taken to the police station first instead of the hospital, nor does he remember how he ascertained De Contreras's identification information. (Ex. D at 38-39.) Mastaler, meanwhile, remained in the apartment, interviewing Morales and Padilla with M.M. serving as a sign-language translator. (SUF ¶ 54.) Sometime during Mastaler's investigation, Sergeant Scott Chilton, the shift supervisor, arrived, assessed the situation, and told Mastaler to contact him if Mastaler had difficulty communicating with the witnesses. (SUF ¶ 60.) Mastaler concluded his investigation, removed Diaz's handcuffs, left the apartment, and began driving back to the police station at 11:53 p.m. (SUF ¶ 57; Ex. C 91 4 (Black Decl.).)
While at the police station, De Contreras communicated that he was in pain; he was taken to the hospital at 11:54 p.m. and was seen by a doctor at 12:10 a.m. (SUF ¶¶ 42, 43, 45.)
Mastaler, based on M.M.'s translation of Morales and Padilla's statements, prepared the incident report and narrative, which Lieutenant Wilson reviewed two days later. (SUF ¶¶ 63-65.) Lee then prepared a supplemental report, which Chilton reviewed. (SUF ¶ 66.)
Defendants' asserted facts and supporting evidence, while at times conflicting as to non-material facts, are sufficient for the Court, lacking the benefit of any evidence or argument submitted by Plaintiffs, to find there is no triable issue of material fact as to any of Plaintiffs' claims. The Court considers below whether the undisputed facts entitle Defendants to judgment as a matter of law on each of Plaintiffs' claims.
In Fourth Amendment excessive force actions brought under 42 U.S.C. § 1983, the two primary inquiries posed by a motion for summary judgment are (1)
The Fourth Amendment's prohibition of excessive force is premised on the notion that "bodily integrity [is] `a cherished value in our society.'" United States v. Kriesel, 508 F.3d 941, 948 (9th Cir.2007) (quoting Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). "A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment's `objective reasonableness' standard." Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 921 (9th Cir.2001) (citing Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances" as perceived by a reasonable officer at the scene. Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir.2007) (citing Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)); Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. Courts determine whether the use of force was objectively reasonable through "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, 490 U.S. at 396, 109 S.Ct. 1865.
With respect to the Fourth Amendment intrusion side of the balance, courts must "assess the gravity of the particular intrusion on Fourth Amendment interests by evaluating the type and amount of force inflicted." Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir.2003). With respect to the countervailing government interest side of the balance, courts
In the Ninth Circuit, "threat" is "the most important single element of the three specific [Graham] factors." 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 (citation and internal quotations omitted). When the circumstances show that a reasonable officer would not perceive the need for force, "any force used is constitutionally unreasonable." Sanders v. City of Fresno 551 F.Supp.2d 1149, 1166 (E.D.Cal.2008), aff'd, 340 Fed.Appx. 377 (9th Cir.2009) (citing Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir.2001)); Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005).
In Bryan, the Ninth Circuit considered the reasonableness of the same use of force at issue here: a model X26 taser deployed in dart mode.
Bryan, 630 F.3d at 824-25 (some internal citations omitted). See also Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir.1993) (cited by Bryan, 630 F.3d at 811-12, 824-25) (stating that a taser "inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless").
The Bryan court further found that "[a] reasonable police officer with... training on the X26 [equal to that of the defendant] would have foreseen these physical injuries [including shattered teeth, facial abrasions, and a barbed probe lodged in the plaintiff's flesh, requiring hospitalization so that a doctor could remove the probe with a scalpel] when confronting a shirtless individual standing on asphalt." Id. at 824.
Given these findings, the Ninth Circuit established in Bryan that firing an X26 taser at a suspect one time constitutes "an intermediate, significant level of force." Id. at 826.
An officer's use of a taser is more likely to be unreasonable when the officer deploys the taser more than once.
"[G]overnment officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A plaintiff need not point to a case specifically on point establishing the official action as unlawful, but he must establish that in light of pre-existing law the unlawfulness of the defendant's actions is apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id.
The Supreme Court recently emphasized the high burden that must be met for a plaintiff to overcome qualified immunity, replacing Anderson's language of "a reasonable official" with "every reasonable official" and stating that "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (emphasis added). The Supreme Court has also held that, "in an obvious case, [the Graham standards for excessive force] can clearly establish the answer, even without a body of relevant case law" and that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 738, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also Mattos, 661 F.3d at 442 (quoting id.). The Ninth Circuit is "particularly mindful of this principle in the context of Fourth Amendment cases, where the constitutional standard — reasonableness — is always a very fact-specific inquiry." Mattos, 661 F.3d at 442. "If qualified immunity provided a shield in all novel factual circumstances, officials would rarely, if ever, be held accountable for their unreasonable violations of the Fourth Amendment." Id.; see also Deorle, 272 F.3d at 1286 ("Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct."). But see Mattos, 661 F.3d at 453 (Schroeder, J., concurring) ("One could argue that the use of painful, permanently scarring weaponry on non-threatening individuals, who were not trying to escape, should have been known to be excessive by any informed police officer under the long established standards of Graham. The Eleventh Circuit has recently held that police officers using a taser were not entitled to qualified immunity where no threat, or escape, was imminent. Fils v. City of Aventura, 647 F.3d 1272, 1289, 1292 (11th Cir.2011). Nevertheless, the Supreme Court's opinion in al-Kidd appears to require us to hold that because there was no established case law recognizing taser use as excessive in similar circumstances, immunity is required.").
Defendants' evidence, uncontradicted by any submission from Plaintiffs,
First, the Court evaluates the "nature and quality of the intrusion" on De Contreras's "Fourth Amendment interests." Graham, 490 U.S. at 396, 109 S.Ct. 1865. Plaintiffs submit no evidence demonstrating the extent of De Contreras's injury. Defendants' evidence shows that (1) De Contreras suffered a "Taser injury to his chest" requiring a physician's assistant to "remov[e] the Taser darts and administer[ ] the proper wound care" (Ex. N (Manning Declaration); see also Ex. O (ARMC Medical Record)); and (2) Lee inflicted pain on De Contreras (see Ex. F. (De Contreras Dep.) at 86 ("I was just focusing on the pain that I was experiencing at that time in my chest."); 87 (De Contreras repeated the words "hurt" or "pain" after Lee brought him to the police station); id. ("I was all messed up in my body. I could feel it in my heart.").) Additionally, the Court notes the general effects of being tased in dart mode that have been described by the Ninth Circuit, as discussed above. See Bryan, 630 F.3d at 824-26; Mattos, 661 F.3d at 441, 445. These include effects that are secondary to the taser's primary effect of discharging electricity to incapacitate the suspect, namely, the secondary effects of the barbed darts puncturing the suspect's flesh
Second, the Court weighs this Fourth Amendment intrusion against the government's countervailing interests in tasing De Contreras. Based on the evidence provided, the Court finds all three Graham factors to weigh in favor of finding the use of force reasonable: First, a reasonable officer who witnessed De Contreras in a physical altercation with Diaz would have suspected him of committing a violent assault that was ongoing until he noticed the officers' presence. Second, a reasonable officer in Lee's circumstances would have feared that De Contreras had a knife based on the initial 9-1-1 call, would have observed that De Contreras at the moment was agitated and willing to engage in violence, and would have perceived that, at a minimum, De Contreras's physical gestures and movements were potentially threatening. Third, while De Contreras was not physically resisting arrest, a reasonable officer would not have known that he was deaf and would have interpreted his refusal to get on the ground as intentional noncompliance with police orders.
Between the first tasing and the second tasing, however, it is less clear whether Defendants submitted evidence is sufficient such that a reasonable jury could not find Lee's use of force in tasing De Contreras a second time to be unreasonable. With the second tasing, the Fourth Amendment intrusion increased, as more pain was inflicted and De Contreras's state of forced paralysis was prolonged. The incapacitating effects of tasers in dart mode entail unique intrusions into one's bodily integrity that increase with prolonged exposure. In addition to the pain inflicted, tasers in dart mode result in total loss of control over one's own body, immobilization caused not by any external overpowering force, such as a police control hold, but rather by a forced internal separation of the mind and body. The longer a suspect's body is seized in this way, the greater the intrusion into his Fourth Amendment rights must surely be. Cf. Bryan, 630 F.3d at 825-26 (internal citations omitted) ("The X26 thus intrudes upon the victim's physiological functions and physical integrity in a way that other non-lethal uses of force do not.... [T]he pain delivered by the X26 is far more intense and is not localized, external, gradual, or within the victim's control. In light of these facts, we agree with the ... characterization of a taser shot as a `painful and frightening blow.'")
Inversely, between the first and second tasing, the evidence shows that the countervailing government interest decreased. De Contreras, collapsed on the floor, unable to do more than roll to his side, objectively posed far less of a threat than when he was standing up and moving towards the officers. Further, at this point, a reasonable officer seeing De Contreras roll on the floor, wearing only shorts, would have less fear that De Contreras had a knife on his person or that, even if he did, that he was in a condition allowing him to gain access to and attack with the knife. Most crucially for the "threat" factor, after De Contreras was initially tased, the evidence demonstrates that he was within the officers' control. For 42 seconds, De Contreras was physically incapacitated by the taser charge, attached to Lee's taser through the wired darts as Lee stood either close to him or almost directly above him, and the potential target of Mastaler's drawn firearm. See LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961 (9th Cir.2000) ("[T]he use of [non-lethal] weapons ... may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force."); Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir.2002) (emphasis in original) ("Because the officers had control over the protestors it would have been clear to any reasonable officer that it was unnecessary to use pepper spray to bring them under control, and even less necessary to repeatedly use pepper spray against the protestors when they refused to release from the [restraints]."); Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994) ("[N]o particularized case law is necessary for a deputy to know that excessive force has been used when a deputy sics a canine on a handcuffed arrestee who has fully surrendered and is completely under control."); Hammer v. Gross, 932 F.2d 842 (9th Cir.1991) (finding officers' force reasonable to place the suspect under control but unreasonable when applied after the suspect was under officer control); accord Nelson v. City of Davis, 685 F.3d 867, 884-85 (9th Cir.2012). Thus, as De Contreras may have been under officer control, he may have posed a level of threat to the
As to the third Graham factor, De Contreras cannot be said to have been resisting arrest during those 42 seconds, as neither officer attempted to place him under arrest. At most, De Contreras was prone, but not completely flat on his stomach as Lee ordered him.
The Court also considers the availability of alternative methods to effectuate the arrest, another salient factor here. See Smith v. City of Hemet, 394 F.3d 689, 701-02 (9th Cir.2005) (en banc); Headwaters Forest Defense, 240 F.3d at 1204 ("[P]olice are required to consider what other tactics if any were available to effect the arrest."). Lee was not required to "use the least intrusive means available" to arrest De Contreras (Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir.2010)), but a reasonable jury might find that, at some point during those 42 seconds, either officer could have placed De Contreras in handcuffs with very little risk to their safety, thus negating the need to expose De Contreras to another taser shock.
Similarly, tasing De Contreras again 42 seconds after the first tasing may in fact have impeded the countervailing governmental interest by ultimately delaying the arrest. That is, waiting 42 seconds and then tasing De Conteras again may have increased the Fourth Amendment intrusion and decreased the efficacy of the use of force as compared to the available alternative: immediately handcuffing and arresting De Contreras after the first tasing, when, as demonstrated in the video recording, De Contreras was unable to do more than roll on the ground and at various points was face-down on the floor. Like in Brooks, both sides of the Graham balance may have shifted toward a finding of unreasonableness when Lee, by discharging his taser a second time, provided De Contreras "no time ... to recover from the extreme pain [he] experienced, gather [him]self, and reconsider [his] refusal to comply." Mattos, 661 F.3d at 441.
Determining whether a reasonable jury could find that the totality of the circumstances did not justify Lee's use of force is complicated by the lack of clear precedent regarding police use of tasers, particularly with respect to the reasonableness of deploying the taser more than once. Thus, before assessing the factors discussed above and determining whether, in light of the totality of the circumstances, a jury could reasonably find that the use of force was unreasonable, the Court turns to the question of qualified immunity.
The incident at issue here occurred in August 2010, before the Ninth Circuit's final decisions in Bryan, Brooks, or Mattos, the cases providing the most extensive and recent guidance on tasers as a use of force. Hence, the Court finds that Lee is entitled to qualified immunity because the law regarding a second application of a taser, after a first application that was objectively reasonable, was not then clearly established.
Specifically, it was not clearly established how firing a taser at a threatening suspect affects the degree of threat that every reasonable officer would perceive after that first tasing. In fact, despite the many ways in which multiple tasings, particularly in the incapacitating dart mode, would appear to shift the Graham balance to weigh against reasonableness, the Ninth Circuit has given this factor only brief consideration. For example, in Sanders v. City of Fresno, the Ninth Circuit affirmed summary judgment for officers who tased an unarmed suspect five times in dart mode and five times in drive-stun mode, exposing him to taser shocks for up to
As the applicable law regarding the reasonableness of Lee's use of force was not clearly established at the time of the injury, Officer Lee is qualifiedly immune.
In light of this finding, the Court declines to determine whether a jury could find reasonably that Lee violated De Contreras's Fourth Amendment rights. Therefore, the Court grants summary judgment in favor of Defendant Lee on De Contreras's Fourth Amendment claim.
The record lacks any evidence to support Plaintiffs' claim that Lee or Mastaler fabricated their police reports. Furthermore, as De Contreras was convicted on the charges alleged in the police reports (see April 9, 2012 Minute Order Granting Motion to Dismiss at 7 (Doc. No. 42)), he cannot now challenge the validity of those police reports under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477, 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a claim for damages that would invalidate a conviction or sentence that has not already been invalidated or reversed on direct appeal, by executive order, by an authorized state tribunal, or by a writ of habeas corpus is not cognizable under § 1983.) Thus, Defendants are entitled to summary judgment on De Contreras's Fourteenth Amendment claim.
Plaintiffs allege that the City violated their rights under section 504 of the Rehabilitation Act of 1973, which provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). To state a claim under Section 504, Plaintiffs must show that (1) they are individuals with a disability; (2) they are otherwise qualified to receive the benefit; (3) they were denied the benefits of the program solely by reason of their disability; and (4) the program receives federal financial assistance. Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997).
In his Declaration, Chief of the Rialto Police Department William Farrar declares that the City "does not receive the federal funding necessary to trigger the application of the Rehabilitation Act." (Ex. T ¶ 12). While the Court need not accept — and in fact doubts — Farrar's legal conclusion, there is no evidence before the Court that would allow a reasonable jury to find that the Rialto Police Department receives the public funding to make it bound by the Rehabilitation Act with respect
To state a claim under Title II of the ADA, Plaintiffs must show that (1) they are qualified individuals with a disability; (2) they were either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of their disability. Weinreich, 114 F.3d at 978.
As "[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act," the Court analyzes these claims simultaneously. Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir.1999). Thus, because no evidence before the Court shows that Plaintiffs were denied any benefit covered by the ADA or Rehabilitation Act, Defendants are entitled to summary judgment on Plaintiffs' ADA and Rehabilitation Act claims.
A district court may decline to exercise supplemental jurisdiction over a state claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "The Supreme Court has stated, and we have often repeated, that `in the usual case in which all federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state-law claims.'" Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir.1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)).
After considering the jurisdictional principles of judicial economy, procedural convenience, fairness to litigants, and comity, the Court finds it appropriate to decline supplemental jurisdictional over Plaintiffs' remaining state law claims. See id. at 343, 108 S.Ct. 614.
For the foregoing reasons, the Court GRANTS summary judgment in favor of Defendants on Plaintiffs' federal law claims and DISMISSES WITHOUT PREJUDICE to refiling in state court Plaintiffs' remaining claims.
