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May 13, 1997


The opinion of the court was delivered by: ILLSTON

 On May 9, 1997, the Court heard argument on defendants' motion for summary judgment or partial summary judgment. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS defendants' motion for summary judgment on plaintiffs' claims pursuant to 42 U.S.C. § 1983 and DISMISSES WITHOUT PREJUDICE plaintiffs' state law claims.

 On November 22, 1995, Edward Palacios became intoxicated at his residence. Several members of his family were frightened by his behavior and his sister, Elva Palacios, called the police. Defs.' Statement of Uncontroverted Facts ("DSUF") # 1. *fn1" Oakland Police Officers Monica Russo and Martin Hughes responded to the call, and when they arrived at the Palacios home at approximately 1:30 a.m. on November 23, 1995, Palacios appeared to be intoxicated. DSUF # 2-3. The Palacios family asked Officers Russo and Hughes to remove Palacios from the home. DSUF # 4. Palacios left the home accompanied by Russo and Hughes. Outside the home, Palacios walked towards Hughes' police car; there was a police dog seated in the back of the car. As Palacios walked towards the police car, the dog in the car barked and lunged at Palacios. DSUF # 6. Officer Hughes stepped in between Palacios and the dog, and pushed Palacios once in the chest away from the vehicle. Id. Palacios stumbled and fell down, hitting his head on the pavement. DSUF # 7. After Palacios fell, he became unconscious, but no one at the scene observed any signs of trauma, such as blood, scratches, cuts, or bruises on Palacios. DSUF # 8. Officer Russo called for an ambulance following the incident. Def. Ex. A(6) at 31:20-22. The ambulance never responded to Officer Russo's call, and Russo did not make a follow-up call because it appeared that Palacios was uninjured. Def. Ex. A(6) at 37:21-38:16.

 Palacios was handcuffed while on the ground and placed under arrest for public intoxication pursuant to California Penal Code Section 647(f). DSUF # 18. Oakland Police Officer Tim Bergquist ("Bergquist") arrived at the scene and transported Palacios to Oakland City Jail. DSUF # 21. Bergquist was not told that Palacios had fallen or that Palacios had been unconscious prior to Bergquist's arrival. DSUF # 24. Palacios was talkative during the drive to jail. DSUF # 26.

 Once Palacios arrived at Oakland City Jail, the correctional officer who processed Palacios and signed the admission observation sheet noted that Palacios had no visible signs of trauma or injury. Def. Ex. A(7); DSUF # 11. Palacios was placed in the "drunk tank" area of the holding cell at approximately 2:00 a.m. on November 23, 1995. At 10:35 a.m., a correctional officer unsuccessfully attempted to wake Palacios. Because he noticed what appeared to be blood on the floor of Palacios' cell, he summoned the jail nurse to evaluate Palacios. When the nurse was unable to revive Palacios, she determined that Palacios should be examined by a physician and immediately made arrangements to transfer Palacios to Alameda County Hospital. The examining physician at Alameda County Hospital determined that Palacios was suffering from an epidural hematoma. Decl. of Dr. Laslow Tamas ("Tamas Decl.") at P 5.

 Plaintiffs filed this action against the City of Oakland and Oakland Police Officers Martin Hughes and Tim Bergquist, alleging claims under 42 U.S.C. § 1983 and state law. The First Amended Complaint alleges that as a result of the fall, Palacios now suffers headaches, memory loss, and back and neck pain. On March 21, 1997 defendants filed a motion for summary judgment.


 The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. However, on an issue for which the nonmoving party will have the burden of proof at trial, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Id. If the moving party meets its initial burden, the nonmoving party must then set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed. R. Civ. P. 56(e).

 In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence and draws all inferences in the light most favorable to the nonmoving party. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630-31. The evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).


 I. Discovery Disputes

 As a preliminary matter, plaintiffs have identified three discovery disputes, which must be resolved before the Court rules on defendants' motion for summary judgment. Plaintiffs contend that: (1) defendants failed to comply with their obligations of initial disclosure under Rule 26, (2) defendants improperly withheld documents pursuant to the attorney-client privilege, work product privilege, Penal Code §§ 832.7 and 832.8, and Evidence Code § 1040, and (3) defendants improperly destroyed a police radio tape of the November 22-23, 1995 incident involving Palacios. Each of these contentions will be addressed in turn.

 A. Rule 26 Initial Disclosures

 Plaintiffs allege that a number of documents were not disclosed by defendants, as required by Federal Rule of Civil Procedure 26(b), until defendants filed their motion for summary judgment. *fn2" Defendants respond that these documents did not appear relevant at the time defendants made their initial disclosures and that defendants disclosed the documents once their relevance became clear. Plaintiffs have not demonstrated any prejudice from defendants' delay in disclosing the documents, nor have plaintiffs provided evidence of improper motive on the part of the defendants. As such, the Court declines to continue this matter or to sanction the defendants for failing to disclose these documents earlier. *fn3"

 B. Documents Withheld on Ground of Privilege

 Plaintiffs assert that defendants have failed to disclose a number of material documents on the ground of privilege (i.e., attorney-client privilege, work product privilege, Penal Code §§ 832.7 and 832.8, and Evidence Code § 1040). Plaintiffs argue that these documents are not in fact privileged and must therefore be disclosed. In response, defendants state that no documents were actually withheld from plaintiffs; defendants' assertion of privilege was merely a "precautionary" measure.3a Because all of the documents appear to have been disclosed, there is no dispute left to be resolved.

 C. Radio Tape

 Finally, plaintiffs assert that defendants improperly destroyed a police radio tape of the night in question in this litigation. Defendants state that the police radio tape was destroyed 120 days after the incident pursuant to standard police procedure (i.e., tapes were destroyed in Feb. 1996). Defendants emphasize that the instant case was not filed until March 26, 1996 and that defendants were therefore under no obligation to preserve the tapes at the time the tapes were destroyed. Because the plaintiffs provide no evidence to the contrary, no adverse action needs to be taken against the defendants. The Court will now consider the merits of defendants' motion for summary judgment.

 II. Section 1983 Claim of Edward Palacios

 A. Officers Hughes and Bergquist

 Palacios makes three claims against Officers Hughes and Bergquist. He alleges that the officers used excessive force, that the officers had no probable cause to arrest him, and that the officers were deliberately indifferent to his serious medical needs. Officers Hughes and Bergquist, in turn, move for summary ...

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