STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jeremiah D. Vickers is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's claims of excessive force in violation of the Fourteenth Amendment against Sgt. Maldonado, Deputy Baillie, Deputy Sanchez, Deputy Gomez, Deputy Murphey, Deputy Heiden, and Deputy Rodriguez.
Currently before the Court is Defendants' motion for summary judgment, filed on December 1, 2016 (ECF No. 47.)
This matter proceeds on Plaintiff's original complaint, filed on December 22, 2014. (ECF No. 1.) On February 1, 2016, Defendants filed an answer to the complaint. (ECF No. 19.) On February 5, 2016 the discovery and scheduling order issued. (ECF No. 21.) On July 27, 2016, the scheduling order was amended to extend the deadline to file amendments to the complaint. (ECF No. 34.)
On September 9, 2016, Plaintiff filed a first amended complaint. (ECF No. 36.) On September 21, 2016, Defendants filed a motion to strike the amended complaint. (ECF No. 37.)
On July 26, 2016, Plaintiff filed a motion to extend the discovery and scheduling order. (ECF No. 38.) Defendants filed an opposition to Plaintiff's motion to extend the scheduling order on October 3, 2016. (ECF No. 39.)
On October 11, 2016, Plaintiff filed an opposition to Defendants' motion to strike the first amended complaint. (ECF No. 41.) On October 19, 2016, Defendants filed a reply to Plaintiff's opposition to the motion to strike the first amended complaint. (ECF No. 42.)
On December 1, 2016, Defendants filed the subject motion for summary judgement. (ECF No. 47). Defendants also filed a request for judicial notice. (ECF No. 48.) Plaintiff filed a motion to stay the motion for summary judgment on December 22, 2016. (ECF No. 49.) Defendants filed an opposition to Plaintiff's motion to stay the motion for summary judgment on January 5, 2017. (ECF No. 50.)
On March 3, 2017, the Court issued an order (1) denying Plaintiff's September 26, 2016 motion to amend the discovery and scheduling order; (2) granting Defendants' motion to strike Plaintiff's first amended complaint, and striking the first amended complaint from the record; and (3) denying Plaintiff's motion to stay Defendants' motion for summary judgment. (ECF No. 52.) Plaintiff was ordered to file an opposition to Defendants' motion for summary judgment within thirty days of the date of service of that order. Plaintiff was warned that if he did not file an opposition in compliance with that order, then Defendants' motion for summary judgment would be deemed unopposed. (
More than thirty days have passed since Plaintiff was ordered to file an opposition to Defendants' motion for summary judgment, and no opposition was filed. No reply brief has been filed by Defendants.
Defendant's motion for summary judgment is now deemed submitted for review, unopposed and without oral argument. Local Rule 230(1).
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case.
At the time of the events, Plaintiff was a pretrial detainee who had been found incompetent by the court and was undergoing treatment for his mental health issues. Plaintiff alleges that after he calmly refused orders to cuff up, he was dragged from his cell by the Defendant deputies and beaten savagely, resulting in two black eyes and multiple bloody wounds. Plaintiff alleges that although he was never resistant, the beating continued after he was restrained and Defendant Maldonado, who was standing by watching the entire time, informed other inmates nearby, "All you guys take a look. This is what happens when you refuse court. Take a good look." (Doc. 1, Comp., ¶20.) During the beating, Defendant Maldonado also made comments such as, "See, this is what fucking happens when you try and refuse court on my watch." (
Defendants raise two arguments in support of their motion for summary judgment. First, Defendants assert that Plaintiff's excessive force claims are barred under
In support of their
In pertinent part, the colloquy during the August 21, 2014 change of plea and sentencing hearing in
(ECF No. 48-2, pp. 15-17.)
The Court may take judicial notice of court records.
1. At all times relevant to this case, Plaintiff was an inmate in the custody of the Tulare County Jail.
2. At all times relevant to this case, Defendants were Deputy Sheriffs and a Sergeant working in the Corrections Division and assigned to the Bob Wiley Detention Facility in the County of Tulare.
3. On December 26, 2013, while on duty, Defendants responded to Plaintiff's cell after he refused to place his hands into the food port to be cuffed at the requests of Defendants Heiden and Rodriguez. Plaintiff was to be transported to Court by the Defendants for his court hearing on that date.
4. Plaintiff states that his only response to Defendants requests to cuff up were non-verbal shakes of his head. He states that he never said anything to the Defendants during the incident.
5. Defendants opened Plaintiff's cell door and a struggle ensued outside of his cell.
6. Defendants used physical force during the struggle and Plaintiff was eventually pinned to the ground in a prone position.
7. The struggle ended when Plaintiff had each of his arms placed into hand cuffs while pinned on the ground.
8. Once on his feet and carrying his own weight, Plaintiff was escorted to the nurse's station without further incident.
9. The force used on Plaintiff on December 26, 2016, by the Defendants, occurred during the struggle.
10. Plaintiff claims that he offered no physical resistance and did not raise his fists at Defendants during the incident.
11. Plaintiff claims that the Defendants had no right to utilize any force on him during the incident.
12. Plaintiff denies ever using any violence or threats toward any Defendants throughout the incident.
13. Plaintiff admits that Defendant Sanchez was wrongfully named and not involved in the incident. In addition, Defendant Sanchez was not present at the Tulare County Jail on December 26, 2013.
14. Based on the December 26, 2013 incident, Plaintiff pled no contest in Tulare County Superior Court to violations of California Penal Code Section 69 for obstructing Defendants Baillie and Murphey with threats or violence and consequently was sentenced to an additional year in prison.
15. Based on the December 26, 2013 incident, Plaintiff pled no contest in Tulare County Superior Court to violations of California Penal Code Section 148(a) for obstructing Defendants Gomez and Rodriguez and consequently was sentenced to an additional year in prison.
16. Plaintiff denies and Defendants assert in their Crime Reports that Plaintiff swung his left fist at Deputy Baillie just before swinging and making contact with Deputy Murphey's face.
17. There is no evidence that Plaintiff's no contest plea under Penal Code sections 69 and 148(a) were invalidated through a direct appeal, expunged by executive order, or by the issuance of a writ of habeas corpus prior to filing the operative complaint in this case.
As noted above, Plaintiff pleaded no contest to charges under California Penal Code § 69 and § 148(a)(1) in connection with the December 26, 2013 incident he complains of in this action. Plaintiff was sentenced to an additional year of imprisonment based on these convictions, in combination with other charges, by the Tulare County Superior Court. Further, Plaintiff has not shown that these convictions have been invalidated or expunged.
Defendants argue that because Plaintiff alleges in this action that during the December 26, 2013 incident, he did not resist in any manner, nor use any force or violence on any of Defendants, his version of events is inconsistent with the above convictions. Therefore, Defendants assert, Plaintiff's excessive force claim is barred under
In
512 U.S. at 486-87 (footnote omitted). The Court also stated in
Subsequently to
Defendants assert that if any of them used excessive force during the December 26, 2013 events as Plaintiff alleges, then Plaintiff could not have been convicted for multiple violations of California Penal Code §§ 69 and 148(a)(1). California Penal Code § 69 penalizes any person "who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty." Cal. Penal Code § 69. California Penal Code § 148(a)(1) is violated when an individual resists, delays, or obstructs the officer in the lawful performance of his or her duty. Cal. Penal Code § 148(a)(1).
The lawfulness of an officer's conduct is an essential element of the offense under § 148(a)(1).
The records Defendants have provided from Plaintiff's criminal case do not explain the specific factual basis for Plaintiff's no contest pleas and his convictions. However, the record is clear that Plaintiff was convicted of two counts of violating § 148(a)(1) for resisting, obstructing, or delaying Defendants Gomez and Rodriguez, and two counts of violating § 69 for willfully, unlawfully attempting by means of threats or violence to deter or prevent Defendants Murphy and Baillie from performing their duties. Thus, although the factual basis that the Tulare County Court found sufficient for the no contest pleas here is not known, this Court can infer that Plaintiff was convicted of multiple instances of resistance, obstruction, or delaying multiple officers in their lawful duties during the December 26, 2013 altercation.
Turning to the factual nature forming the basis of Plaintiff's excessive force claims in this case, Plaintiff has alleged that on two to three instances he was ordered to cuff up by one or more of the Defendant officers, and he either remained silent, or shook his head in response, and did not comply. (ECF No. 1, pp. 4, 7; Pl.'s Depo at 31:1-32:9, 35:3-36:19.) Plaintiff next alleges that the Defendants agreed to assault him and opened his cell door, upon which Plaintiff "brace[d]" himself by putting his chin to his chest and tucking his arms around his stomach. (ECF No. 1, pp. 4, 7; Pl.'s Depo at 37:7-41:23.) Plaintiff was then allegedly pulled out of his cell, thrown to the ground, brutally beaten, and repeatedly Tasered. (ECF No. 1, pp. 4-5, 8; Pl.'s Depo at 41:15-43:9, 45:11-46:2, 46:16-25, 48:9-50:14.) Once the beating was over, Plaintiff was taken to the nurse's station. (ECF No. 1, p. 9; Pl.'s Depo. at 57:5-59:9.)
At his deposition, Plaintiff was repeatedly asked whether he resisted, threatened or otherwise deterred Defendants during the incident, beyond his initial, non-verbal refusals to cuff up before his cell door was open, and he repeatedly denied doing so. For example, Plaintiff was asked, and answered as follows:
(Pl.'s Depo at 35:12-14, 39:5-10, 42:24-43:2, 43:11-44:2, 46:3-15, 47:15-48:8.)
Plaintiff's theory in this case, that he only non-verbally refused to follow orders to cuff-up two or three times, but otherwise did not resist, fail to follow orders, or use any threats or violence in any way during the December 26, 2013 incident, is inconsistent with this two convictions under § 148(a)(1) and two convictions under § 69 for the same incident. As Plaintiff is the non-moving party, the Court must assume that Plaintiff's version of events is true. Further, given the lack of a specific factual basis for Plaintiff's no contest pleas and convictions, and Defendants' burden to show that Plaintiff's claims are barred by
However, even under the most liberal interpretation, Plaintiff's version of events provides no factual basis for his two convictions under § 69 for attempting to deter or resisting Defendants Murphey and Baillie through threats or violence. Instead, Plaintiff has clearly alleged that he posed no threat to Defendants in any way, nor did he resist physically or even verbally. To the extent that a plaintiff's section 1983 claim alleges that he offered no resistance, that he posed no reasonable threat of obstruction to the officers, and that the officers had no justification to employ any force against him, that claim is inconsistent with his conviction for resisting the officers and is barred under
That Plaintiff's theory of liability for his excessive force claims only necessarily undermines a portion of his convictions does not allow him to proceed here, as the events at issue here involve one continuous incident and his convictions arise out of the same facts. "Otherwise, a section 1983 plaintiff could routinely circumvent the
For these reasons, Plaintiff's § 1983 claims against Defendants should be dismissed as barred by
Defendants also argue that Defendant Sanchez should be dismissed from this action because Plaintiff has admitted he was not present at the December 26, 2013 incident, should not have been named as a defendant, and he is not interested in pursuing any claim against him. (Pl.'s Depo. at 81:11-22.)
To state a claim, a plaintiff must allege facts demonstrating the existence of a link, or causal connection, between each defendant's actions or omissions and a violation of his federal rights.
Accordingly, it is HEREBY ORDERED that:
1. Defendants request for judicial notice, filed December 1, 2016 (ECF No. 48), is GRANTED;
2. Defendants' motion for summary judgment, filed December 1, 2016 (ECF No. 47) is GRANTED; and
3. The Clerk of the Court is directed to enter judgment in Defendants' favor, terminate any pending motions and deadlines, and close this case.
IT IS SO ORDERED.