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October 14, 2005.

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

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 car."*fn1

  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 police officers.

  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) negligence.


  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 ...

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