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March 23, 1994

MIGUEL ANGEL ANDRADE, et al., Plaintiffs,
CITY OF BURLINGAME, et al., Defendants.


The opinion of the court was delivered by: MARILYN HALL PATEL

Plaintiffs Miguel Andrade, Rocio Andrade, Maribel Andrade and Jackie Marquez brought this action against defendants City of Burlingame, Burlingame Police Chief Alfred Palmer, and Police Officer Richard Harman, alleging violations of their rights under 42 U.S.C. § 1983 as well as several state law causes of action. *fn1" Now before this court is defendants' motion for summary judgment on all counts.

 On February 6, 1992, Officer Harman of the Burlingame Police Department was patrolling the streets of Burlingame in his patrol car. He was accompanied by his police dog, with whom he had worked since 1988. Some time between 3:30 and 4:00 p.m., Officer Harman received a call from the police dispatcher informing him that a bus passenger had been assaulted with a baseball bat and that the suspects had fled the scene. The dispatcher provided Officer Harman with a description of the suspects and of the suspects' car and informed him that the suspects were believed to be armed with baseball bats and a pellet gun.

 Officer Harman saw a car that fit the description of the suspects' vehicle and pulled the car over. The car was driven by Miguel Andrade. Rocio Andrade, Maribel Andrade and Jackie Marquez were passengers in the car. *fn3" Officer Harman called for back-up units after the car was stopped. Defendants claim that Officer Harman then ordered the driver from the car; plaintiffs claim that they understood that they were all to get out of the car. The parties agree that when Miguel Andrade got out, he failed to comply immediately with Officer Harman's command to lie down on the ground. Officer Harman then approached Miguel Andrade, and as he did so the other plaintiffs got out of the car.

 The police dog was in the back seat of the patrol car when Officer Harman stopped the plaintiffs. A window divided the front compartment of the car from the rear compartment where the dog was; Officer Harman had left this window partially open in order to give the dog fresh air. See Declaration of Richard Harman in Support of Summary Judgment P 7. Officer Harman also left the front door of the patrol car open when he got out of the car to approach Miguel Andrade. While Officer Harman was trying to subdue Miguel Andrade, the dog apparently climbed through the divider and out the open front door. The parties agree that Officer Harman did not order the dog to do so, and that he did not know that the dog had left the vehicle. The dog proceeded to bite the heads of both Rocio Andrade and Jackie Marquez, again without being so ordered by Officer Harman. Officer Harman called the dog off as soon as he became aware that it had bitten the girls.

 Shortly thereafter, it became clear that the Andrade party was not in fact the group that had assaulted the bus passenger. The plaintiffs were released and the girls received immediate medical attention. According to plaintiffs, the dog bites to Jackie Marquez's head caused her discomfort for a few weeks, and she continues to be afraid of both dogs and police officers. See Declaration of Heidi Rand, Ex. D (Marquez Deposition) at 8-10. Rocio Andrade apparently required stitches in her head and has on at least one occasion seen a psychiatrist regarding the incident. See Rand Decl., Ex. G (Rocio Andrade Deposition) at 35-37, 39. Plaintiffs subsequently filed this action seeking compensatory and punitive damages.


 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted:

against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by [its] own affidavits, or by the 'depositions, answers to interrogatories, or admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")

 The moving party does not surmount its initial burden through conclusory allegations as to the state of the material on file; however, it is not required to "support its motion with affidavits or other similar material negating the opponent's claim." Celotex, 477 U.S. at 323 (emphasis in original). The moving party discharges its burden by showing that the nonmoving party has not disclosed the existence of any "significant probative evidence tending to support the complaint." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968).

 The court's function on a motion for summary judgment is not to make credibility determinations. Anderson, 477 U.S. at 249. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.


 Plaintiffs state in their opposition papers that they have dismissed several of their causes of action. Their remaining federal cause of action is for violations of their fourth and fourteenth amendment rights pursuant to 42 U.S.C. § 1983. *fn4" Plaintiffs have also alleged pendent state law claims for assault and battery, intentional and negligent infliction ...

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