United States District Court, N.D. California
October 14, 2005.
GEORGE RICHARD HOOPER, Plaintiff,
COUNTY OF CONTRA COSTA; WARREN E. RUPF, Contra Costa County Sheriff; RALPH BROWN, Contra Costa County Deputy Sheriff; JOSHUA PATZER, Contra Costa County Deputy Sheriff; and DOES 1-10; Defendants.
The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
Defendants Ralph Brown and Joshua Patzer move, pursuant to
Federal Rule of Civil Procedure 56, for summary adjudication of
all claims in the third amended complaint (TAC) filed by
Plaintiff George Richard Hooper. Plaintiff opposes the motion.
The matter was taken under submission on the papers. Having
considered the parties' papers and the evidence cited therein,
the Court GRANTS in part Defendants' motion for summary judgment
and DENIES it in part.
According to Plaintiff's sworn declaration, on the evening of
March 19, 2003, he ingested approximately one hundred tablets of
pain pills and drank several beers in an attempt to commit
suicide. At about 12:45 a.m. the next morning, Defendants Brown and
Patzer, who are Contra Costa County Sheriff's Deputies, were
dispatched to an area of Rutherford Lane in Oakley, California
due to a report of a suspicious dark-colored Volkswagon Beetle
and its occupant, who was apparently attempting to commit suicide
by inhaling exhaust fumes.
Brown reached the Volkswagon first, and he states that when he
arrived in his marked patrol car, Plaintiff was standing at the
rear of the vehicle holding a large tube that was attached to the
tailpipe. Plaintiff acknowledges that he had taken vacuum cleaner
hoses from his house and was attempting to connect them to the
car's tailpipe. When Brown arrived at the scene, he turned on his
overhead lights, shined a spotlight on Plaintiff, got out of his
patrol car, and told Plaintiff to stop what he was doing because
he wanted to talk to him. Brown was in uniform. The parties agree
that, at that point, Plaintiff got into his vehicle and fled. In
his declaration, Plaintiff states that, due to his intoxicated
state, he did not realize that Brown was a police officer.
Brown states in his declaration that, at the time Plaintiff
fled, "I pursued Hooper in my car, and at that time I decided
that I needed to detain and arrest him." Brown does not state for
what crime he believed he had probable cause to arrest Plaintiff
at that time. Brown followed Plaintiff westbound on Rutherford
Lane with his overhead lights still on. Patzer approached driving
eastbound on Rutherford Lane. He was also in a marked patrol car
and in uniform. Plaintiff's sworn declaration states as follows:
"As I proceeded on what I now know was Rutherford Drive, I
encountered a car coming toward me in my lane of traffic. I swerved into the
other side of the street to avoid colliding with that
Plaintiff's vehicle then struck a parked van and came to rest
on a curb and sidewalk. Brown and Patzer stopped their vehicles
on each side of Plaintiff's car in order to block his escape, and
exited their patrol cars with their guns drawn. According to the
undisputed evidence submitted by Defendants, Brown approached the
driver's side of Plaintiff's vehicle and repeatedly ordered
Plaintiff to get out of the car. Patzer positioned himself toward
the front of Plaintiff's car. Plaintiff states that he could not
hear the officers' commands because the drugs and alcohol had
caused him to have difficulty hearing. He also states that, at
this point, he still did not realize that Brown and Patzer were
Defendants submit undisputed evidence that, while the officers
were commanding Plaintiff to exit his vehicle, Plaintiff began to
rev his engine, and turned his vehicle sharply to the right to
dislodge it from the curb and maneuver out from between the two
police cars. It is also not disputed that, as Plaintiff executed
this maneuver, he almost struck Patzer, who, as he dodged the
Volkswagon, fired a single shot into the vehicle, missing
Plaintiff. In his sworn declaration, Patzer states that he fired
the shot at Plaintiff's vehicle because he believed that
Plaintiff was attempting to run him over. Plaintiff states that
he did not intentionally drive at Patzer.
Plaintiff then drove his car eastbound on Rutherford Lane. He
crashed into a curb several blocks away, which deployed the air
bags in his vehicle. Patzer arrived at the scene and parked his
patrol car approximately ten feet behind Plaintiff. It is not
disputed that Plaintiff backed his vehicle into Patzer's vehicle,
striking it, and then rolled forward and came to a stop against
the curb. Brown arrived and parked next to Patzer; both officers
exited their vehicles and approached Plaintiff's car with their
guns drawn. Plaintiff was grasping the steering wheel with both
hands. According to Patzer's declaration, he told Plaintiff not
to move or he would shoot, and Plaintiff responded, "Good, shoot
me." Plaintiff does not dispute this.
Patzer opened the driver's side door. Both officers ordered
Plaintiff to get out of the car, but he refused. The evidence is
not disputed that the officers then struck Plaintiff several
times in an effort to dislodge his grip on the steering wheel and
remove him from his car; Patzer struck Plaintiff on the arm once
with his baton, and several more times in the face and shoulders
with his fists. Patzer then dragged Plaintiff out of the vehicle
and put him face down on the street. Plaintiff states that he was
not resisting at this point, but he does not dispute Defendants'
evidence that his arms were underneath his body and not
restrained. Patzer acknowledges punching Plaintiff once in the
ribs as he tried to get his arms behind him in order to handcuff
him. In Plaintiff's sworn declaration, he states that Patzer
kicked him in the face. It is not clear from Plaintiff's
declaration whether he claims that Patzer kicked him while he was handcuffing him, or
afterwards. After the officers handcuffed Plaintiff, they placed
him in the back of a patrol car.
A paramedic on the scene found abrasions to Plaintiff's face.
The emergency room physician at Sutter Delta Hospital, where
Plaintiff was taken after the incident, also noted abrasions to
his face. No other injuries were reported. On October 21, 2003,
Plaintiff entered a plea of nolo contendere to violating
California Penal Code section 69 (felony resisting arrest).
On March 18, 2004, Plaintiff filed the complaint that initiated
this lawsuit. On April 9, 2004, Plaintiff filed an amended
complaint against Brown, Patzer, Contra Costa County, and Contra
Costa County Sheriff Warren E. Rupf. On May 10, 2004, Defendants
Contra Costa County and Sheriff Rupf moved to dismiss the claims
against them. On June 21, 2004, the Court granted the motion to
dismiss in part and granted Plaintiff leave to amend his
complaint. On July 16, 2004, Plaintiff filed his second amended
complaint and, on July 22, he filed the TAC. On August 3,
Defendants Contra Costa County and Sheriff Rupf again moved to
dismiss the claims against them. Plaintiff did not oppose that
motion and, on November 3, 2004, the Court granted it.
The TAC alleges the following causes of action against Brown
and Patzer, all of which arise from the officers' pursuit and
arrest of Plaintiff: (1) excessive force in violation of the
Fourth Amendment, (2) assault and battery, (3) intentional
infliction of emotional distress, (4) violation of the Bane Act,
a State law which provides civil penalties for interference with
protected rights accompanied by discriminatory intent, and common law
causes of action for (5) failure to intervene, and (6)
Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law. Fed.R.Civ.P.
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th
The moving party bears the burden of showing that there is no
material factual dispute. Therefore, the court must regard as
true the opposing party's evidence, if supported by affidavits or
other evidentiary material. Celotex, 477 U.S. at 324;
Eisenberg, 815 F.2d at 1289. The court must draw all reasonable
inferences in favor of the party against whom summary judgment is
sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem.
Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect the
outcome of the case. The substantive law will identify which
facts are material. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where the moving party does not bear the burden of proof on an
issue at trial, the moving party may discharge its burden of
showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support
the nonmoving party's case." Celotex, 477 U.S. at 325. The
moving party is not required to produce evidence showing the
absence of a material fact on such issues, nor must the moving
party support its motion with evidence negating the non-moving
party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n,
497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991).
If the moving party shows an absence of evidence to support the
non-moving party's case, the burden then shifts to the opposing
party to produce "specific evidence, through affidavits or
admissible discovery material, to show that the dispute exists."
Bhan, 929 F.2d at 1409. A complete failure of proof concerning
an essential element of the non-moving party's case necessarily
renders all other facts immaterial. Celotex, 477 U.S. at 323.
I. Excessive Force
A. Heck v. Humphrey
Defendants contend that Plaintiff's excessive force claim is
barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). In
Heck, the Supreme Court ruled that a plaintiff may not recover
damages for "harm caused by actions whose unlawfulness would
render a conviction or sentence invalid" unless he or she can
prove that the conviction or sentence has been overturned,
expunged or declared invalid. 512 U.S. at 486-87. The test is
"whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of [the plaintiff's] conviction or
sentence." Id. at 487. Here, Defendants argue that a judgment in favor of Plaintiff on
his excessive force claim would invalidate his plea of nolo
contendere to the charge of felony resisting arrest. A plea of
nolo contendere has the same effect as a guilty plea or guilty
verdict for purposes of Heck analysis. See Nuno v. County of
San Bernardino, 58 F. Supp. 2d 1127, 1135 (C.D. Cal. 1999).
Plaintiff cites Smith v. City of Hemet, 394 F.3d 689, 695
(9th Cir. 2005), in which the Ninth Circuit held, "In California,
the lawfulness of the officer's conduct is an essential element
of the offense of resisting, delaying or obstructing a peace
officer." The court ruled that, if an officer used excessive
force at the time of an arrest, the arrest would be unlawful and
the arrestee could not be convicted of resisting. Id. at
695-96. However, the Smith court ruled that the defendants in
that case were not entitled to summary judgment under Heck
because it was not clear from the record whether Smith had plead
guilty to resisting, delaying or obstructing the officer based
upon his actions during his arrest (which would have triggered
Heck), or based upon his actions prior to his arrest when
officers were attempting to conduct an investigation at Smith's
house and had not yet attempted to detain him. Id. at 697-98.
Plaintiff argues that Heck does not bar his excessive force
claim because Brown and Patzer used excessive force both before
and after they arrested him. Plaintiff contends that the
officers' actions during the initial car chase on Rutherford Lane
occurred before Plaintiff's arrest, and that their actions while
he was face down on the street occurred after his arrest. Here, the evidence is not clear at what point Defendants had
probable cause to arrest Plaintiff. Brown states that he decided
to arrest Plaintiff when Plaintiff drove away from the initial
encounter with him, but Defendants have not specified the crime
for which Brown had probable cause to arrest Plaintiff at that
time. Brown does not state that he was attempting to detain
Plaintiff pursuant to California Welfare and Institutions Code
section 5150 before Plaintiff fled in his vehicle. Defendants'
declarations state that they had probable cause to arrest
Plaintiff for resisting arrest and various vehicle code
violations, but it appears that this had not occurred when
Plaintiff first drove away from Brown. Thus, there is no evidence
that Defendants had initiated a lawful arrest when Plaintiff
initially fled, and there is a genuine factual dispute whether
Defendants' actions during the initial car chase occurred during
the course of their arrest of Plaintiff. It is during this time
that, according to Plaintiff, Patzer drove his car in the wrong
lane toward him, an action that Plaintiff asserts constituted
deadly and excessive force.
In addition, Plaintiff's declaration states that Patzer kicked
him the face at some point after Defendants dragged him from his
vehicle and threw him on the ground, and after he had been
physically restrained and was not resisting. It is not clear from
Plaintiff's declaration whether he claims that Patzer kicked him
after he was handcuffed. However, drawing all inferences in favor
of Plaintiff, there is a material dispute whether, if he was
kicked in the face, he was kicked after Defendants had
effectuated his arrest. For the foregoing reasons, there is a genuine factual dispute
whether the actions of which Plaintiff complains Patzer's
driving on the wrong side of the road toward him and Patzer's
kicking him in the face occurred entirely during his arrest, or
whether they occurred before or after his arrest, respectively.
If these actions occurred before or after his arrest, Plaintiff's
excessive force claim arising from them is not barred under
Heck by his nolo contendere plea. See Smith,
394 F.3d at 697-98. Plaintiff has not submitted evidence that Brown committed
any act that may form the basis for an excessive force claim that
is not Heck-barred. Thus, Defendants' motion for summary
adjudication of Plaintiff's excessive force claim is denied with
respect to Patzer and granted with respect to Brown.
B. Qualified Immunity
Defendants also argue that they are entitled to summary
judgment of qualified immunity from Plaintiff's excessive force
claim. The defense of qualified immunity protects government
officials "from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
threshold question is whether, taken in the light most favorable
to the plaintiff, the facts alleged show that the officer's
conduct violated a constitutional right. Saucier v. Katz,
533 U.S. 194, 201 (2001). The plaintiff bears the burden of proving
the existence of a clearly established right at the time of the
allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). If the law is
determined to be clearly established, the next inquiry is whether
a reasonable official could have believed his conduct was
lawful. Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th
Excessive force claims arising in the context of an arrest or
investigatory stop are analyzed under the Fourth Amendment
reasonableness standard. Graham v. Connor, 490 U.S. 386, 395
(1989). The reasonableness of a particular use of force is judged
from the perspective of the officer; that analysis "must embody
allowance for the fact that police officers are often forced to
make split-second judgments in circumstances that are tense,
uncertain, and rapidly evolving about the amount of force that
is necessary in a particular situation." Id. at 396-97.
Resolving factual disputes in favor of Plaintiff and crediting
his evidence, there was no probable cause to arrest him when he
drove away from the initial encounter with Brown, and his arrest
had been completed when he was restrained on the ground and
handcuffed. Plaintiff had a clearly established right to be free
from excessive force in both situations, which occurred before
and after his arrest, respectively. And, under these
circumstances, no reasonable officer could have believed that
driving his patrol car the wrong way down the street directly at
Plaintiff was reasonable, nor could he have believed that kicking
him in the face after he had been arrested was permissible.
For the foregoing reasons, Patzer is not entitled to summary
judgment of qualified immunity from Plaintiff's excessive force
claim. II. State Law Claims
A. Assault and Battery
Defendants argue that Plaintiff cannot establish a cause of
action for assault and battery because he cannot prove that
unreasonable force was used. In California, in order to make a
prima facie case of assault against a police officer, a
plaintiff must demonstrate that the officer's use of force was
unreasonable in addition to the elements of a general assault
claim. Scruggs v. Haynes, 252 Cal. App. 2d 256, 264 (1967). A
claim for assault requires a showing of an unlawful attempt,
coupled with present ability, to commit violent injury on the
person of another. Eres v. County of Alameda, 1999 WL 66519,
*11 (N.D. Cal. 1999).
For the reasons stated above, there is a genuine dispute of
material fact whether Patzer used excessive force during the
March 20, 2003 incident. However, Plaintiff may not bring a State
law tort claim based upon an excessive force claim that is
Heck-barred. Susag v. City of Lake Forrest,
94 Cal. App. 4th 1401, 1412-13 (2002). Accordingly, Defendants' motion for summary
adjudication of this claim is denied with respect to Patzer and
granted with respect to Brown.
B. Intentional Infliction of Emotional Distress
Defendants argue that Plaintiff cannot sustain a claim for
intentional infliction of emotional distress because he has not
submitted evidence that Defendants' behavior was outrageous or
that he suffered severe emotional distress as a result of that
behavior. Under California law, a plaintiff must establish the
following elements to prevail on a claim for intentional
infliction of emotional distress: (1) extreme and outrageous conduct by the
defendant with the intent to cause, or reckless disregard of the
possibility of causing, emotional distress; (2) severe or extreme
emotional distress; and (3) actual and proximate causation of the
emotional distress. Cervantez v. J.C. Penney Co.,
24 Cal. 3d 579, 593 (1979).
Here, because there is a triable issue of fact whether Patzer
drove his car on the wrong side of the road toward Plaintiff
before a legal arrest was initiated, and whether Patzer kicked
Plaintiff in the face after his arrest was completed, there is
also a genuine dispute whether Patzer's conduct was extreme and
outrageous. In addition, Plaintiff states in his declaration that
he has suffered emotional distress as a result of the March 20,
2003 incident. Thus, summary adjudication of this claim against
Patzer is not appropriate. Defendants' motion for summary
adjudication of this claim against Brown is granted. See
Susag, 94 Cal. App. 4th at 1412-13.
C. Bane Act
Plaintiff's Bane Act claim is based upon his claim of excessive
force. Thus, Defendants' argument that Plaintiff's Bane Act claim
fails because his excessive force claim fails must be rejected.
However, under the Bane Act, a plaintiff must show interference
with a protected right and that the interference was "due to his
or her race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age, disability,
or position in a labor dispute." Boccato v. City of Hermosa
Beach, 29 Cal. App. 4th 1797, 1809 (1994) (internal citations omitted).
Here, Plaintiff has submitted no evidence that Defendants'
conduct was accompanied by discriminatory intent. And, Plaintiff
has submitted no evidence that he is a member of a class of
persons protected by California Civil Code section 51.7, which is
a requirement to bring a claim under the Bane Act. Id. Thus,
Defendants' motion for summary adjudication of Plaintiff's Bane
Act claim is granted.
D. Failure to Intervene
The TAC states a common law cause of action for failure to
intervene, alleging that police officers other than Defendants
had a duty to intervene in Defendants' alleged constitutional
violations. Police officers have a duty to intercede if their
fellow officers violate the constitutional rights of a suspect,
and the witnessing officers have an opportunity to intercede.
Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000).
Plaintiff has not argued or submitted evidence that Brown had
an opportunity to intervene when, as Plaintiff claims, Patzer
drove at him on the wrong side of the road and kicked him once in
the face. Thus, Defendants are entitled to summary adjudication
of this claim.
Plaintiff's sixth cause of action is for negligence. Defendants
argue that Plaintiff's negligence claim must fail because his
section 1983 claim fails. However, the Court has denied
Defendants' motion for summary adjudication of Plaintiff's claim
against Patzer for excessive force. In order to prevail on his claim for common law negligence,
Plaintiff must show that (1) Defendants owed Plaintiff a duty of
care, (2) Defendants breached that duty, (3) the breach caused
Plaintiff's injury, and (4) Plaintiff suffered damages. See
Spates v. Dameron Hosp. Ass'n, 114 Cal. App. 4th 208, 213
(2003). For the reasons stated above, there is a triable issue of
fact on each of these elements with respect to Patzer.
Defendants' motion for summary adjudication of this claim against
Patzer is denied. Their motion for summary adjudication of this
claim against Brown is granted. See Susag,
94 Cal. App. 4th at 1412-13.
For the foregoing reasons, Defendants' motion for summary
judgment (Docket No. 47) is GRANTED in part and DENIED in part.
The Court grants Defendants' motion for summary adjudication of
all claims against Brown. The Court also grants Defendants'
motion for summary adjudication of Plaintiff's claims, against
Patzer, under the Bane Act and for failure to intervene. The
Court denies Defendants' motion for summary adjudication of the
remaining claims against Patzer.
IT IS SO ORDERED.
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