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November 22, 2005.

ANGEL J. MENDEZ, Plaintiff,
COUNTY OF ALAMEDA, et al., Defendants.

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


The motion of defendant Derek Meza for summary judgment came on for hearing before this court on November 16, 2005. Plaintiff appeared by his counsel Julie M. Houk, and defendant appeared by his counsel Clyde A. Thompson. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion as follows and for the reasons stated at the hearing.


  This is an action brought under 42 U.S.C. § 1983. Plaintiff Angel James Mendez ("Mendez") alleges that defendants County of Alameda and Alameda County Sheriff's Deputies Derek Meza ("Deputy Meza") and J. Russell ("Deputy Russell") violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.

  Mendez also asserts state law claims of negligence (against all defendants), battery (against all defendants), violation of his rights under California Civil Code §§ 52 and 52.1 (against all defendants), and false arrest and imprisonment (against the County and Russell only).

  Deputy Meza now seeks summary judgment on all claims asserted against him.


  Mendez's allegations against Deputy Meza arise from an incident that occurred on October 5, 2002. On that date at approximately 12:55 a.m., Deputy Russell and another Alameda County Sheriff's Deputy responded to a complaint from Nancy Arteaga ("Arteaga"), who was Mendez's girlfriend at the time. Arteaga complained that Mendez had arrived at her house with a gun.

  Deputy Russell prepared an incident report, and Arteaga signed a statement indicating that Mendez had been violent and had assaulted her several times in the past while under the influence of crystal methamphetamine, and that she was fearful for her own safety and the safety of her family. She stated that on October 5, 2002, Mendez had come to her house, threatened her father with a gun, called her a "bitch," and pushed her into the bushes outside of her house. Arteaga, who was four months pregnant with Mendez's child at the time, sustained injuries to her right knee, leg, and arm. When she asked Mendez why he had shoved her into the bushes, Mendez allegedly spit on her and said, "Shut up, bitch!" According to Arteaga, Mendez then got into a car driven by his mother, and the car left the scene.

  Deputy Russell wrote up the report and took the statement from Arteaga. He stated in his report that two other officers went to Mendez's house, but no one answered. According to Deputy Russell, while he was at Arteaga's residence, she received three phone calls from Mendez, who was calling her from his residence. Arteaga told Mendez to stop calling her. At Deputy Russell's request, Arteaga called Mendez, but when Deputy Russell tried to talk to him, Mendez hung up. Deputy Russell called Mendez again from Arteaga's phone; Mendez answered but then immediately hung up.

  Later the same morning, Deputy Meza spoke briefly with Deputy Russell in the locker room of the Sheriff's Office. Deputy Russell was just ending his shift as Deputy Meza was starting his. Deputy Russell told Deputy Meza that if Meza got a "callback" to "the house on A Street" (referring to Arteaga's house), there was probable cause to arrest Mendez on a domestic violence charge.

  Deputy Meza's supervisor, Sergeant Dan Murray ("Sgt. Murray"), also told Deputy Meza that there was probable cause to arrest Mendez on a domestic violence charge. Sgt. Murray told Deputy Meza to contact Mendez and arrest him. He told Deputy Meza to go to Arteaga's home to look for Mendez if he could not contact Mendez at home.

  Deputy Meza then went to Mendez's home with the intent of arresting him. He knocked on the door to Mendez's apartment, and saw the vertical blinds open and close quickly, but there was no response. He continued to knock on the door, but no one came out of the apartment.

  As instructed by Sgt. Murray, Deputy Meza next went to Arteaga's house, and asked her whether she had seen Mendez. When Arteaga received a phone call from Mendez, Deputy Meza asked her for the phone, and listened as Mendez shouted, "You fucking bitch, why did you send the police to my house?!!" Deputy Meza then introduced himself to Mendez on the phone, and asked Mendez why he had not answered the door earlier. Mendez responded, "I don't give a fuck who you are. I don't have to do anything you say. You punk motherfucker, I'll kick your fucking ass." Deputy Meza told Mendez he needed to talk to him about the incident that had happened during the previous night. Mendez hung up the phone.

  Deputy Meza obtained Mendez's telephone number from Arteaga and called him back. Mendez did not pick up the phone, so Deputy Meza left a message on his answering machine. On the message, Deputy Meza asked Mendez to pick up the phone, and indicated that he would apprehend him if he saw him:
Angel, pick up the phone. As soon as you step out your door, I'm going to nab you. If you call over to her house again, make any threats, I'm going to kick your door down and take you out, ok? You need to grow up, quit being a little baby. You got a problem, you call me directly, Deputy Meza. You step outside your door, you better be ready `cause I'm going to get you myself. Next time beat up on a guy instead of messing with a girl. Step outside and I'll be waiting for you.
Deputy Meza did not attempt to call Mendez again, did not leave any other messages for him, and had no further contact with him. No arrest warrant was issued for Mendez, and he was never charged in connection with the October 5, 2005, incident.

  On October 10, 2005, Barbara Overland ("Mrs. Overland"), a resident of Hayward who did not know Mendez and had never previously seen him, found him sleeping on a lounge chair in the garage of her home shortly before 8:00 p.m. She noticed that he had a bruise on his forehead. Neither she nor her son Cory Overland was able to wake Mendez, and she called Hayward police for assistance in removing him from her property. The initial call for service was put out on the police radio at 8:28 p.m. Deputy Gemmell responded that he was a few minutes away.

  Before Deputy Gemmell arrived, however, Deputy Russell arrived on the scene in an Alameda County Sheriff's Department vehicle. Mrs. Overland told Deputy Russell she did not necessarily want Mendez arrested, but just wanted him off her property. Deputy Russell told Mrs. Overland he would take care of it. At 8:49 p.m., Deputy Russell radioed dispatch that he had Mendez in custody.

  While the officers were in the garage, Mrs. Overland (who could not see what was going on in the garage) heard Mendez say, "Okay, okay, I'll quit struggling." The officers then walked out of the garage with Mendez, who was in handcuffs. Deputy Gemmell arrived at about that time. He could not recall if Mendez seemed to be in any physical distress. Mrs. Overland recalled that Mendez was able to walk without any problem, and she saw no blood on him.*fn1 Deputy Russell and Deputy Gemmell walked Mendez to the patrol vehicle, and Deputy Gemmell conducted a pat-down search.

  After Mendez was placed in the police vehicle, one of the officers — Mrs. Overland could not recall which one — told her that it was a good thing she had called them, as Mendez was wanted for having beaten someone up. Deputy Gemmell believed that Mendez was going to be charged with public intoxication and resisting arrest. That was the last interaction Deputy Gemmell had with Mendez.

  Deputy Gemmell returned to his shift, and Deputy Russell transported Mendez to Santa Rita Jail. Mendez testified that it took about 20 minutes to drive to Santa Rita from Mrs. Overland's home. He admitted that during that time, he was cursing Deputy Russell. Deputy Russell claimed that Mendez slipped out of his seatbelt during the ride, and attempted to kick out the window of the patrol vehicle.

  According to Mendez, after they arrived at Santa Rita and he was removed from the patrol vehicle, he began walking toward the door of the jail. At that point, he asserts, Deputy Russell grabbed him from the back of his head and slammed his face into the wall of the building, chipping his tooth, and then began beating him. Mendez claims that some of the blows were to the stomach area, and that he collapsed and fell to the sidewalk.

  Deputy Russell denies that he assaulted Mendez when they arrived at Santa Rita. He maintains that after he pulled Mendez (whom he claims was still kicking) out of the patrol vehicle, he placed Mendez in a holding cell at the jail. After removing the handcuffs, he noticed that Mendez had vomited and was drooling on himself. He attempted to find a jail nurse to obtain clearance for Mendez to be booked into the jail.

  According to deposition testimony of Irene Favila, the nurse at Santa Rita who responded to the request, the arresting agency will not bring an arrestee to the jail if he is in acute distress, but will generally automatically take him to the hospital to get a clearance before transporting him to the jail. She also testified, however, that when an inmate or arrestee is extremely drunk, or belligerent or agitated, the officer will bring him straight to a holding tank, and a nurse has to clear the inmate/arrestee to determine if he can be safely held in custody there, before he can be fingerprinted and booked.

  When Nurse Favila arrived at the holding tank, a number of deputies were standing inside. She noticed that Mendez was lying on his side on the concrete bench. She asked him to sit up so she could evaluate him, and a deputy attempted to pull him up into a seated position, but Mendez kept slumping back down. She had the impression that Mendez could not sit up on his own. She thought at first that he was intoxicated, because she noticed the smell of alcohol. She believed he was conscious because every time she asked him a question — e.g., "Are you sick?" "Are you on any medication?" "Are you injured?" "Can you talk to me?" — he would moan. She observed that his eyes were crossed and he had some contusions on his face. Because she could not get answers to her questions and because she was concerned that the crossed eyes might indicate some neurological condition, she stated that she would not clear Mendez, that Mendez would have to be taken to the hospital to be cleared.

  After Nurse Favila said she would not clear Mendez, she became aware that Mendez was Deputy Russell's arrestee. She claims that Russell became upset and yelled at her, saying that her decision was "BS," and that he wanted another nurse to clear Mendez, to get a second opinion. Favila told Deputy Russell that there was another nurse he could talk to.

  Nurse Ella Garrido was in the office, but she indicated to Nurse Favila that she did not want to go see Mendez, because she did not want to override Favila's decision. Deputy Russell told Favila that he was familiar with Mendez, that Mendez had been at Santa Rita on many occasions and that his eyes were always crossed, and that he was simply intoxicated. However, Favila still refused to clear him.

  Nurse Favila asked Deputy Russell if Mendez had been involved in a car accident or a fight, because she wondered why he had contusions on his face, and Russell said that he had received a call from an old lady saying there was a drunk guy sleeping in her garage, and that when Russell arrived, Mendez looked as he did when he arrived in the holding tank.

  Deputy Russell testified that he then attempted to locate a sergeant to override Nurse Favila's decision, because he believed that Mendez was merely drunk, and that Favila had not conducted an adequate assessment because she simply stood at the doorway to the holding tank while she made her decision, rather than going inside to see Mendez. Deputy Russell spent five or ten minutes looking for the sergeant — Sgt. Rosales — but Rosales said she would stand by the nurse's decision.

  At that point, Deputy Russell decided to take Mendez to the hospital. He removed Mendez from the holding tank, walked him to another cell closer to the exit, and waited for two other deputies to arrive so they could follow Deputy Russell to the hospital in case Mendez tried to kick out the window again.

  When Deputy Russell returned to the cell, he found Mendez lying on the floor in a spread-eagle position. He noticed that Mendez was sweating quite a bit. He told Mendez to sit up, but Mendez did not respond. Deputy Russell cuffed him, and more or less carried him to the patrol vehicle. Deputy Russell then drove Mendez to the hospital, and the other deputies followed. Mendez was admitted to Valley Care Medical Center in Pleasanton a few minutes before 11:00 p.m.

  Mendez was assessed at Valley Care, and was determined to be in critical condition. The doctor who treated him, Dr. Howard Yoshioka, testified that Deputy Russell stated that Mendez had been injured earlier in the day in an altercation while intoxicated, and that Mendez had been tackled to the ground during his arrest.

  Mendez was then transported by ambulance to Eden Hospital in Castro Valley, for emergency surgery. The doctor who treated him at Eden Hospital, Dr. Kristen Engle, asked Mendez what had happened, and testified that he told her he had been beaten by the police. Dr. Engle also testified that Mendez was "near extremis" when he was admitted — his blood pressure was almost non-existent, and he had lost a lot of blood. She performed emergency surgery, and determined that Mendez's liver was crushed and his severe blood loss was caused by the liver damage. According to Dr. Engle, the injury that caused the damage to Mendez's liver occurred within an hour of his admission to Valley Care, and was consistent with either one blow or multiple blows of a deep and narrow nature to the abdomen.

  Mendez claims that following this incident, an unidentified Alameda County Sheriff's Deputy visited Cory Overland, and suggested to him that he should forget anything he might know about the incident on the Overland property. According to Cory Overland, he had an outstanding warrant for a seatbelt violation, and was afraid that if he talked to anyone about the incident he might be arrested.

  Mendez also asserts that after he filed this lawsuit, Deputy Russell retaliated against him on February 13, 2004, claiming that Mendez was violating a domestic violence restraining order obtained by Arteaga, even though Arteaga (who by this time had become Mrs. Mendez) had told Deputy Russell that there was no violation of the restraining order because the order had been modified.

  Finally, Mendez claims that on another occasion, Alameda County Deputy Sheriff Frank Cessna, with whom Deputy Russell has socialized outside of work, responded to a subsequent incident involving Arteaga that had nothing to do with Mendez. Arteaga testified that Deputy Cessna told her that Mendez was "no good" and that she should leave him, and that if she saw him again, she should tell him that Cessna was going to beat him up worse than Deputy Russell did. (Deputy Cessna denied saying this.)

  Mendez filed this action on October 3, 2003, and filed a first amended complaint on January 24, 2005. Mendez alleges that Deputy Meza threatened Mendez when he left the message on Mendez's answering machine, and that Deputy Russell and Deputy Meza later agreed to violate Mendez's constitutional rights. Mendez asserts that Deputy Russell and Deputy Meza acted pursuant to this conspiracy when they ...

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