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Williams v. Kenney

August 12, 2008



This action, in which plaintiff is proceeding in propria persona, wasreferred to the undersigned pursuant to Local Rule 72-302(c)(21). See 28 U.S.C. § 636(b)(1). Plaintiff alleges violations of his constitutional rights in connection with his arrest by Vallejo police officers on July 15, 2006. Defendants Kenney, Tribble, and Botello have moved for summary judgment on the basis of qualified immunity, which plaintiff opposes. The matter was taken under submission pursuant to Local Rule 78-230(h). Having considered all submitted papers, the court recommends that defendants' motion be denied.

The court has also considered the briefing filed by defendants following submission of their summary judgment motion regarding the effect of the City of Vallejo's bankruptcy petition, filed on May 23, 2008. For the reasons discussed below, the court also recommends that this action be stayed pursuant to 11 U.S.C. § 362(a).


This action is proceeding on the second amended complaint filed by plaintiff on March 27, 2007. Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 against three individual officers of the Vallejo City Police Department -- defendants Sean Kenney, Kent Tribble, and Richard Botello.*fn1 Plaintiff alleges that all three officers violated his constitutional rights under the Fourth and Fourteenth Amendments by employing excessive force in connection with his arrest on July 15, 2006.

Plaintiff alleges that on the morning of July 15, 2006, around 4:00 a.m., defendant Kenney followed plaintiff for approximately five miles on "Eastbound Highway 80, mimicking each lane change until the plaintiff slowed and pulled his vehicle to the left shoulder" so Kenney could pass him. SAC, ¶ 6. Instead of passing plaintiff, Kenney "turned on his overhead lights," and effected a traffic stop. Id. Plaintiff alleges he sat in his vehicle "for a period of time, got out and walked toward" Kenney's patrol car. SAC, ¶ 7. Plaintiff alleges that Kenney stuck his head out of the car window, and told plaintiff to get back in his vehicle. Id. Plaintiff alleges he put his driver's license on the hood of Kenney's car, and turned to go back to his vehicle, whereupon Kenney exited the patrol car and told plaintiff that he was under arrest. Id. Plaintiff alleges he was handcuffed and told to get against the car, and that Kenney grabbed plaintiff's third finger on his right hand and dislocated it. Id.

Plaintiff alleges he told Kenney, "You can arrest me all day long, but you cannot torture me." Id. Plaintiff alleges he started to comply when Kenney told him to get on the ground, but that Kenny kicked him, knocked him to the ground, jumped on him and began hitting him. Id. Plaintiff alleges Kenney was soon joined by other Vallejo police officers who beat him and caused him to lose consciousness and control of his bowels. Id. Plaintiff alleges he was then transported, in custody, to Kaiser Permanent Hospital, where he was "paraded" around while shackled to a gurney. SAC, ¶ 9. Plaintiff alleges that he underwent a blood draw, during which defendant Corporal Botello placed his hands around his neck, constricting his blood and oxygen flow. Id.

Plaintiff alleges numerous physical and emotional injuries as a result of these incidents, and seeks twenty-five million dollars and special damages for payment of all past and future medical expenses. He also seeks twenty-five acres on the Western end of Mare Island, three purebred horses, and other exemplary damages. SAC, ¶¶ 11, 12:13-31.

In their summary judgment motion, defendants assert that they are entitled to qualified immunity with regard to plaintiff's claims because, (1) no constitutional violations occurred, and (2) even if they had, the law was not clearly established so as to put them on notice that their actions violated plaintiff's rights.

On November 1, 2007, plaintiff filed a document entitled, "Motion to Quash Defendant Motion for Summary Judgment," which the court construes as an opposition to the summary judgment motion. Although it is untimely, the court, has considered the opposition and the declarations submitted by plaintiff. However, the court again admonishes plaintiff that continued failure to comply with the Local Rules and scheduling orders will result in sanctions, including the sanction of dismissal. The court has previously admonished plaintiff regarding his failure to follow applicable rules, and cautioned him that further failures could result in sanctions, including a recommendation of dismissal. See Docket Entry no. 40 (order addressing plaintiff's prolix filings and denying his request for an order to have defendants submit to a "lie detector/voice stress analyzer"). The court also orders plaintiff to refrain from sending inappropriate and ex parte messages via electronic mail to the court or its personnel.*fn2 Should he wish to communicate with the court, he shall do so by filing appropriate documents, and serving opposing counsel with a notice of such filings. Failure to abide by this order shall result in sanctions.


Defendants move for summary judgment on the basis of qualified immunity. Qualified immunity protects government officials from suits seeking civil damages. It is not only an immunity from liability, it is an immunity from the process itself. "Qualified immunity is 'an entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

In Saucier, the Supreme Court outlined a two-step qualified immunity analysis. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id., at 201. If yes, the next step is to ask whether the right was clearly established." Id. "The relevant, dispositive inquiry under this second step is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." KRL v. Estate of Moore, 512 F.3d 1184, 1189 (9th Cir. 2008) (citing Saucier, 533 U.S. at 202) (internal quotation marks omitted). Unless the law put the official on notice that his conduct would be clearly unlawful, the official is entitled to qualified immunity. Saucier, 533 U.S. at 202. This second prong of the analysis acknowledges "that reasonable mistakes can be made as to the legal constraints on particular police conduct. . . ."

Id., at 195. Thus, even when "a constitutional violation occurs, law enforcement officers nonetheless are entitled to qualified immunity if they act reasonably under the circumstances." KRL, 512 F.3d at 1189 (citing Wilson v. Layne, 526 U.S. 603, 614 (1999)). "This standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quotations and citations omitted).

Generally, it is the moving defendant's burden to establish that he is entitled to qualified immunity. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005); Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). A plaintiff "may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue." Maraziti, 953 F.2d at 523 (quoting Davis v. Scherer, 468 U.S. 183, 197 (1984)). "If this burden is met by plaintiff, the defendant then bears the burden of establishing that his actions were reasonable, even though they might have violated the plaintiff's constitutional rights." Id. (citing Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir. 1988)).

Here, defendants assert that no constitutional violations occurred, and that even if they did, they acted ...

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