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Agha v. Rosengren


June 13, 2005


The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge


This case arises out of a traffic stop, during which plaintiff contends defendants subjected him to excessive force, discrimination on the basis of his ethnicity, assault, battery, false arrest, intentional infliction of emotional distress, violations of state civil rights laws and negligence. Plaintiff and defendants have filed cross-motions for summary judgment. Doc ##86, 91. For the reasons that follow, defendants' motion is GRANTED IN PART and plaintiff's motion is DENIED.


Plaintiff is, from the court's firsthand observation, an elderly man (he refers to himself in his papers as an octogenarian). He was driving on Golf Course Drive in Rohnert Park on September 2, 2000. Rosengren Decl (Doc #89) ¶2; Agha Decl (Doc #94) ¶2. Plaintiff, wanting to make a left turn, was merging from the main lane of traffic into the left-turn lane when he stopped behind another vehicle waiting to turn. Agha Decl (Doc #94) ¶2. Plaintiff's vehicle's engine died, leaving it stationary and straddling the lane marker between the main lane of traffic and the left-turn lane. Id. While plaintiff's vehicle was stopped, defendant Duane Rosengren ("Rosengren"), a police officer with the City of Rohnert Park (the "city"), was driving on Country Club Drive and approached the intersection with Golf Course Drive. Rosengren Decl (Doc #89) ¶2; Agha Decl (Doc #94) ¶3. From Rosengren's vantage point, plaintiff appeared to be in violation of Cal Vehicle Code § 22100, which requires left turns to be made from the left-most lane. Rosengren Decl (Doc #89) ¶3. Rosengren made a u-turn, turned on his emergency lights and instructed plaintiff to pull his vehicle to the side of the road. Id ¶3. Plaintiff was able to restart his engine and complied. Id ¶4; Agha Decl (Doc #94) ¶4.

Rosengren began filling out a Notice to Appear based on his belief that plaintiff had been attempting an improper left turn and failed to have possession of his driver's license while operating his vehicle. Rosengren Decl (Doc #89) ¶5. "The notice to appear [form] requires information regarding the driver's appearance, including the driver's sex, hair color, eye color, height, weight and race." Id; id Ex A. It is apparently in connection with the "race" field on the notice to appear that plaintiff says that Rosengren asked him "multiple questions about my ethnicity, such as 'Where are you from?' [and] 'Are you Mexican, or Filipino?" Plaintiff further states that "Rosengren spoke derisively of foreign ethnicities. I said that it was a violation of my constitutional rights for Officer Rosengren to ask questions related to my national origin, or race or color, and I refused to answer, which angered Officer Rosengren more." Agha Decl (Doc #94) ¶5.

When Rosengren completed the notice to appear, he asked plaintiff to sign it. Rosengren Decl (Doc #89) ¶6; Agha Decl (Doc #94) ¶6. Plaintiff refused. Rosengren Decl (Doc #89) ¶6; Agha Decl (Doc #94) ¶6. By Rosengren's account, plaintiff "became belligerent, screaming and yelling at me" and Rosengren told plaintiff that if he did not sign the notice to appear, he would be taken into custody. Rosengren Decl (Doc #89) ¶6. Plaintiff refused, and, according to Rosengren, "using a cup grab with [his] right hand to hold the left triceps of Mr Agha, [Rosengren] walked Agha around [Agha's vehicle] to the sidewalk." Id ¶7. Rosengren attempted to handcuff plaintiff, but plaintiff resisted; eventually Rosengren secured plaintiff's hands in handcuffs. Id. According to Rosengren, only after being handcuffed did plaintiff mention that he had arthritis and a heart condition. Id. Rosengren insists that

[a]t no time did I push, hit or shove Mr Agha. I never pushed him against any vehicle, never placed my knee in his back, and never used more force than was required to place him in handcuffs. I never intentionally tried to injure Mr Agha in any way. I only used that amount of force that was reasonably necessary to place him into the handcuffs.

Id ¶9.

Plaintiff's version of events is that when he refused to sign the notice to appear, Rosengren became enraged and grabbed m[e] by [my] arms, twisted them behind my back and threw me against my vehcle. He twisted the two arms as far as he could with my screaming in agony. He said "You want to be arrested, this how." As he was pushing me harder on my arms behind my back and attempting to handcuff me, he said "So you want to go to jail, this is how the jail like. Now sign the ticket and I'll let you go."

Agha Decl (Doc #94) ¶7.

Plaintiff was not taken to jail; rather, he signed the notice to appear and left the scene. Rosengren Decl (Doc #89) ¶8; Agha Decl (Doc #94) ¶8. Plaintiff offers as an exhibit to his declaration a variety of medical and photographic evidence documenting the injuries allegedly sustained as a result of being handcuffed. Agha Decl (Doc #94) Ex 2. Defendants object to this evidence as unauthenticated and hearsay. Doc #97. The court acknowledges the force of this objection, and notes only that the evidence -- if authenticated and introduced not as hearsay --appears to be consistent with plaintiff's account of the arrest.


Plaintiff's amended complaint (Doc #41) advances eight claims for relief. First, plaintiff alleges that Rosengren used excessive force against him in effecting the arrest, in violation of the Fourth Amendment, and discriminated against plaintiff on the basis of his ethnicity, in violation of the Fourteenth Amendment. Second, plaintiff alleges that Rosengren committed assault and battery on plaintiff. Third, plaintiff alleges that Rosengren falsely arrested plaintiff. Fourth, plaintiff alleges that Rosengren intentionally inflicted emotional distress on plaintiff in making the arrest. Fifth, plaintiff alleges that Rosengren violated his rights under Cal Civ Code §§ 51, 52 and 52.1. Sixth, plaintiff alleges that the city violated his federal civil rights by maintaining a custom or policy of improperly investigating "citizens complaints of citizens misconduct" and inadequately supervising and training its police officers. Seventh, plaintiff alleges (in a claim for "negligence") that the city was negligent in training and supervising its police officers. Eighth, plaintiff alleges that Rosengren's conduct was negligent.

Defendants move for summary judgment on all claims. Plaintiff also moves for summary judgment, although his papers are unclear as to the claims on which he contends he is entitled to judgment as a matter of law. Doc #91 (renewing Doc #53). In any event, because the court concludes for each claim either that there are disputed issues of material fact or that defendants are entitled to judgment as a matter of law, the court need not address plaintiff's motion for summary judgment. The court treats the claims in the order described above.

In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 US at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 US 317, 322-23 (1986). When the moving party has the burden of proof on an issue, the party's showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Calderone v United States, 799 F2d 254, 258-59 (6th Cir 1986). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).

The nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence supporting its claim that a genuine issue of material fact exists. TW Elec Serv v Pacific Elec Contractors Ass'n, 809 F2d 626, 630 (9th Cir 1987). The evidence presented by the nonmoving party "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 US at 255. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id at 249.


Plaintiff's first claim is for excessive force and discrimination on the basis of ethnicity. To the extent the claim addresses discrimination on the basis of ethnicity, defendants are entitled to summary judgment. Although Rosengren asked plaintiff his ethnicity, and may have done so in an intemperate way, a defendant does not discriminate on the basis of ethnicity without taking some action because of plaintiff's ethnicity. Plaintiff offers no evidence that any of Rosengren's actions were taken on account of plaintiff's ethnicity.

Plaintiff's claim of excessive force is a different matter. This case has a quintessential dispute of material fact: The events surrounding Rosengren's handcuffing of plaintiff are hotly disputed. Plaintiff says he was contorted and put in extreme pain; Rosengren insists that he never used more force than necessary. Plaintiff claims he was upset, but compliant; Rosengren maintains plaintiff was belligerent and resisted arrest. In short, plaintiff's version of events -- which must be taken in the light most favorable to him on defendants' motion for summary judgment --could reasonably be viewed as involving objectively unreasonable force.

"[T]he inquiry as to whether officers are entitled to qualified immunity is the same as the inquiry on the merits of the excessive force claim." Alexander v County of Los Angeles, 64 F3d 1315, 1322 (9th Cir 1995) (citing Scott v Henrich, 39 F3d 912, 914 (9th Cir 1994)). "Although reasonableness is normally a jury question, 'defendants can still win on summary judgment if the district court concludes, after resolving all facts in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.'" Alexander, 64 F3d at 1322 (citing Scott, 39 F3d at 914).

The Ninth Circuit has denied qualified immunity under disputed factual circumstances much like the ones here. For example, in Palmer v Sanderson, 9 F3d 1433 (9th Cir 1993), the court of appeals confronted a case where an elderly plaintiff (Sanders) was tightly handcuffed by an arresting officer (Sanderson):

Palmer claims that Sanderson fastened Palmer's handcuffs so tightly around his wrist that they caused Palmer pain and left bruises that lasted for several weeks. Sanderson has presented no evidence that would justify handcuffing Palmer so tightly that he suffered pain and bruises, or to justify his refusal to loosen the handcuffs after Palmer complained of the pain. Under these circumstances, no reasonable officer could believe that the abusive application of handcuffs was constitutional. Because Palmer's evidence, if credited, would establish that Sanderson's use of force was excessive in violation of the Fourth Amendment, see Hansen v Black, 885 F2d 642, 645 (9th Cir 1989) (unreasonably injuring a person's wrists while applying handcuffs constitutes use of excessive force), the district court properly refused to grant summary judgment in defendants' favor on this claim.

Id at 1436.

Likewise, in Meredith v Erath, 342 F3d 1057 (9th Cir 2003), the court of appeals held that summary judgment was properly denied because a reasonable jury could find that [defendant]

Agent Erath used an unreasonable amount of force in handcuffing [plaintiff Bybee] and as a result violated her Fourth Amendment rights.

According to Bybee, Erath grabbed her by her arms, forcibly threw her to the ground, and, twisting her arms, handcuffed her. Erath did all of this after Bybee loudly asked several times to see a search warrant. Bybee did not pose a safety risk and made no attempt to leave the Sunset Beach property. Erath was investigating income tax related crimes, which (although felonies) are nonviolent offenses.

Bybee objected vociferously to the search and she "passively resisted" the handcuffing, but the need for force, if any, was minimal at best. In these circumstances, it was objectively unreasonable and a violation of the Fourth Amendment for Erath to grab Bybee by the arms, throw her to the ground, and twist her arms while handcuffing her.

Id at 1061.

Meredith and Palmer teach that the age of the person being arrested, the danger presented to the officer in making the arrest, complaints of pain from the arrestee and whether the crime of arrest is violent are all quite salient in the Fourth Amendment inquiry. Taking plaintiff's version of events as true, all four factors favor plaintiff: Plaintiff is elderly, there is no indication that he presented a danger to Rosengren, he complained loudly of the pain Rosengren was causing him and the offense for which he was arrested was a minor traffic violation. A reasonable jury could conclude that Rosengren subjected plaintiff to excessive force during the arrest. (By the same token, a reasonable jury believing Rosengren's account could find that the force used was reasonable.) Accordingly, summary judgment on this claim must be denied.


Plaintiff's second claim is for assault and battery. Defendants acknowledge that "[t]he standard for determining whether plaintiff's claim of assault and battery is viable is the same standard used to determine a claim of excessive force under 42 USC § 1983." Defs Mot (Doc #87) at 12:2-3. As the court denies summary judgment on the excessive force claim, so too must it deny the motion for summary judgment on this claim.


Plaintiff's third claim is for false arrest. A police officer may make a warrantless arrest when "[t]he officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence." Cal Penal Code § 836(a)(1). Here, it is undisputed that plaintiff's vehicle straddled the lane marker as he prepared to make a left turn. Cal Vehicle Code § 22100(b) provides that "[t]he approach for a left turn shall be made as close as practicable to the left-hand edge of the extreme left-hand lane or portion of the roadway lawfully available to traffic moving in the direction of travel of such vehicle." Plaintiff thus was, at least in Rosengren's reasonable belief, in violation of state traffic laws. It is also undisputed that plaintiff refused to sign the notice to appear, which in turn gave Rosengren the authority to arrest plaintiff. See Cal Penal Code § 853.6(i). Furthermore, as defendants note, "[t]he outcome of a criminal action is not binding on the question of whether there was reasonable cause to make the arrest." Def Mot (Doc #87) at 13:26-27. Accordingly, defendants are entitled to summary judgment on this claim.


Plaintiff's fourth claim is for intentional infliction of emotional distress.

The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.

Potter v Firestone Tire & Rubber Co, 6 Cal 4th 965, 1001 (1993) (citations and quotation marks omitted).

Plaintiff fails to direct the court to evidence that could establish the first element. First, even taking plaintiff's version of the events as true, Rosengren's conduct, although perhaps not becoming of a police officer, did not "exceed all bounds of that usually tolerated in a civilized community." Second, plaintiff does not point to evidence suggesting that Rosengren intended to cause plaintiff emotional distress. Furthermore, the gravamen of this case is plaintiff's excessive force and assault and battery claims, which encompass emotional distress as a component of damages. Plaintiff has not identified probative evidence to support a freestanding intentional infliction of emotional distress case, and, accordingly, summary judgment in defendants' favor is appropriate on this claim.


Plaintiff's fifth claim is for violation of Cal Civ Code §§ 51, 52 and 52.1. Section 51 by its terms only extends to "business establishments." See also Curran v Mount Diablo Council of the Boy Scouts, 17 Cal 4th 670, 709 & n2 (1998); Gardner v Vic Tanny Compton, Inc, 182 Cal App 2d 506, 510 (1960). Section 52 simply provides for the enforcement of section 51 rights. Accordingly, there is no claim against public employees or entities for violation of Cal Civ Code §§ 51, 52.

Cal Civ Code § 52.1 at first appears to be a different matter, because it provides a general remedy against "a person" who deprives "any individual * * * of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state." But even if section

52.1 reaches state actors, it was enacted as part of hate crime legislation and the Ninth Circuit has recognized that California courts have imputed a requirement into section 52.1 that the deprivation be on account of a plaintiff's "'race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability or position in a labor dispute.'" Nelson v City of Irvine, 143 F3d 1196, 1206 (9th Cir 1998) (quoting Boccato v City of Hermosa Beach, 29 Cal App 4th 1797 (1994)). As noted above in connection with plaintiff's Fourteenth Amendment claim, plaintiff is unable to identify a genuine issue of material fact whether Rosengren's actions were due to plaintiff's "race, color, * * * ancestry [or] national origin." Accordingly, summary judgment in favor of defendants is appropriate on this claim.


Plaintiff's sixth claim is against the city for maintaining a custom or policy of improperly investigating "citizens complaints of citizens misconduct" and inadequately supervising and training its police officers. Plaintiff has offered no evidence regarding the city's policies or practices. Accordingly, summary judgment in defendants' favor is appropriate.


Plaintiff's seventh claim is that the city was negligent (apparently under state law) in its training and supervision of its police officers. As with the preceding claim, plaintiff has offered no evidence regarding the city's training and supervision of its police officers. Accordingly, summary judgment in defendants' favor is appropriate.


Plaintiff's eighth claim is that Rosengen's conduct was negligent. Defendants base their motion for summary judgment on this claim only on the ground that a negligence claim cannot stand if the amount of force used by Rosengren was reasonable. See Def Mot (Doc #87) at 15-16. As there is a disputed issue of fact as to the reasonableness of the force used, summary judgment on this claim is inappropriate.


In sum, the court GRANTS IN PART defendants' motion for summary judgment (Doc #86) and DENIES plaintiff's renewed motion for summary judgment (Doc #91). The previously filed motions to compel discovery (Doc ##79, 84) are TERMINATED as moot.

All of plaintiff's remaining claims turn on whether the amount of force used by Rosengren was reasonable: the claim for excessive force, the claim for assault and battery and the claim for negligence against Rosengren. Defendants other than Rosengren remain parties to this suit only to the extent they have respondeat superior liability under state law for the state tort claims.

The court advises plaintiff that while he is entitled to proceed pro se at trial, the conduct of a trial requires, among other things, a technical understanding of the rules of evidence and trial procedure. It is a task in which plaintiff may benefit from obtaining trial counsel to represent him. If Rosengren does not appeal the court's denial of qualified immunity, the parties shall appear for a pretrial conference on August 16, 2005 at 9:00 am.



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