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.
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."
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 ...