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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 reasonably under the circumstances.

A. Summary Judgment Standard

Qualified immunity has been raised here in the context of a summary judgment motion. Summary judgment pursuant to Fed. R. Civ. P. 56(a) avoids unnecessary trials in cases with no disputed material facts. See Northwest Motorcycle Ass'n v. United States Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Two steps are necessary. First, according to the substantive law, the court must determine what facts are material. Second, in light of the appropriate standard of proof, the court must determine whether material factual disputes require resolution at trial. Id.,at 248.

When the opposing party has the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). The moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex v. Cattret, 477 U.S. 317, 323-24 (1986).

If the moving party meets its burden, the burden shifts to the opposing party to establish genuine material factual issues. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party with the burden of proof "must establish each element of his claim with significant probative evidence tending to support the complaint." Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (internal quotations omitted). A complete failure of proof on an essential element of the nonmoving party's case renders all other facts immaterial, and entitles the moving party to summary judgment. Celotex, 477 U.S. at 322.

To withstand a motion for summary judgment, the nonmoving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be in favor of either party." Anderson, 477 U.S. at 250. The opposing party may not rest upon the pleadings' mere allegations or denials, but must present evidence of specific disputed facts. See Fed R. Civ. P. 56(e); see Anderson, 477 U.S. at 248. Conclusory statements cannot defeat a properly supported summary judgment motion. See Scott v. Rosenberg, 702 F.2d 1263, 1271-72 (9th Cir. 1983).

The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See Anderson, 477 U.S. at 249, 25. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). "If the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." See Matsushita, 475 U.S. at 587.

If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court should grant summary judgment.

B. Defendants' Objections to Plaintiff's Evidence

In reply to plaintiff's opposition, defendants assert that the declarations submitted by plaintiff are not admissible evidence and therefore should not be considered by the court in deciding their motion. Defendants, however, fail to explain why they believe the evidence is inadmissible. The declarations are sworn to by plaintiff and, for the most part, recount the events of July 15, 2006, as he perceived them. Although many of the statements made in the declaration merely repeat the defendants' statements and call them lies, some of plaintiff's statements contain specific factual averments regarding the events of the morning in question. Such statements are likely to mirror plaintiff's testimony at trial, and defendants have not offered any basis for why such testimony will not be permitted under the Rules of Evidence. As discussed below, many of the allegations in plaintiff's declaration are general and not particularly helpful. But those infirmities go to the whether the evidence is sufficient to meet his respective burden on this motion and not the admissibility of the declaration itself. Accordingly, the objection is overruled.

C. Application

Defendants argue that their conduct on July 16, 2007, did not violate plaintiff's constitutional rights, because the force used to arrest plaintiff was reasonable under the circumstances.

"The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances facing them." Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)). To determine whether a specific use of force was reasonable," the court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Id., at 477 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). Relevant factors include, but are not limited to, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. (citations omitted). The reasonableness determination also makes "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. (quoting Graham, 490 U.S. at 396-97).

As a preliminary matter, many of the statements made in plaintiff's declarations opposing the defendants' motion for summary judgment are conclusory assertions that defendants are lying and that plaintiff "disputes" their averments. Such averments are generally insufficient to defeat a motion for summary judgment. However, in addition to these conclusory statements, plaintiff offers some specific factual averments, which differ from the version of events presented by defendants.

Although plaintiff denies some of the circumstances surrounding the reasons for the initial traffic stop, he fails to offer evidence disputing Officer Kenney's averment that plaintiff was swerving. Declaration of Sean Kenney in Support of Defendants' Motion for Summary Judgment ("Kenney Decl."), ¶ 4; "Denial to Defendant Sean Kenney Declaration And . . True Statements of Disputed Facts in Support of Plaintiff's Motion to Quash," Docket Entry no. 47-2, (Pl.'s First Decl."), ¶ 3a. Further, plaintiff admits to getting out of his vehicle after Officer Kenney pulled him over, walking to the patrol car, and putting his driver's license on the hood of the patrol car. See Pl.'s First Decl., ¶¶ 5a, 6a, 7a. While plaintiff's conduct -- getting out of his car and approaching an officer sitting alone in his patrol car at 4:00 a.m. -- could reasonably be considered threatening and potentially dangerous under the circumstances, the parties have significant factual disputes about what followed.

While Kenney swears that he told plaintiff approximately four times to get back in his vehicle, plaintiff declares that Kenney told him this only once. See Kenney Decl., ¶ 9; Pl.'s First Decl., ¶ 8a. Plaintiff declares that after being told (once) to return to his car, he attempted to comply with Kenney's order, but as he started walking back to his car, Kenney got out of his car and told plaintiff he was under arrest. Pl.'s First Decl., ¶ 9a.

Kenney declares that plaintiff threw his wallet at him, whereupon Kenny told plaintiff to turn around and place his hands behind his back. Kenney Decl., ¶¶ 12-13. Kenney declares that plaintiff refused to do so, and that he grabbed plaintiff's right arm and tried to turn him around, but that plaintiff resisted. Id., ¶¶ 13-15. Kenney declares that he could smell "a moderate odor of an alcoholic beverage" on plaintiff, and that he radioed for cover. Id., ¶¶ 16-17.

By contrast, plaintiff declares that he complied with Kenney's order to turn around and put his hands behind his back, but that Kenney grabbed him, knocked his wallet to the ground, and injured his wrists while attempting to handcuff him. See Pl.'s First Decl., ¶ 12a. Plaintiff avers that Kenney then told him to get down on the ground, and as he was complying, Kenney kicked him "hard on the right side" of his back. Id. Plaintiff swears that Kenney then jumped on top of him and started hitting him in the face, head and back. Id.

This varies from Kenney's averments, which provide that after he handcuffed plaintiff and tried to search him, plaintiff pushed against Kenney, wrapped his leg around him, and caused them both to fall to the ground. See Kenney Decl., ¶¶ 20-24. Kenney declares that he finally got plaintiff on his stomach, and instructed him to stop resisting, but that plaintiff refused to obey.

Id., ¶ 24. Kenney stated that he put his knee between plaintiff's shoulder blades and neck to control the upper part of his body and applied a wrist lock in an effort to get plaintiff to stop resisting. Id., ¶¶ 25-26.

The parties' averments with regard to Officer Tribble's involvement are similarly at odds. Neither party disputes that Officer Tribble arrived on the scene when plaintiff was on the ground. See Declaration of Kent Tribble in Support of Defendants' Motion for Summary Judgment ("Tribble Decl."), ¶ 5; Kenney Decl., ¶ 27. Both Kenney and Tribble declare that plaintiff was continuing to resist and was kicking his feet. Tribble Decl., ¶¶ 6-8; Kenney Decl., ¶ 27. Tribble declares that he delivered two swift jabs to plaintiff's ribs using his night stick when plaintiff would not obey a command to stop resisting. Tribble Decl., ¶ 8. He declares that he then placed plaintiff in a figure four leg lock and applied a RIPP restraint to his feet, then led plaintiff to the patrol car. Id., ¶¶ 9-10.

Plaintiff generally disputes the truth of Tribble's declaration, and specifically avers that when Tribble arrived on the scene, Kenney stopped hitting him and Tribble started banging plaintiff's head against the concrete roadway. See "Denial to Defendant Michael Kent Tribble Declaration And . . True Statements of Disputed Facts in Support of Plaintiff's Motion to Quash," Docket Entry no. 47-3, (Pl.'s Second Decl."), ¶ 6a. Plaintiff also declares that Tribble and an unknown officer grabbed plaintiff by the arm, pulled in separate directions, picked plaintiff up and dropped him back onto the roadway again and again. Id., ¶ 7a. Plaintiff further avers that Tribble never applied the restraint devices to his feet. Id., ¶ 8a.

Kenney declares that once plaintiff was restrained, he arrested plaintiff for resisting arrest and suspected DUI.*fn3 Kenney Decl., ¶ 29. He further declares that because plaintiff complained of injuries to his wrist and elbow, he took him to Kaiser Hospital. Id., ¶ 30. Kenney avers that plaintiff had a small laceration above his right eye, and that Kenney himself had a wrist injury and abrasions from struggling with plaintiff. Id.

Kenney avers that a blood sample was drawn from plaintiff at the hospital, and that he was diagnosed with bruising and abrasions. Id., ¶¶ 31, 33. Plaintiff alleges much greater injuries, but does not provide any corroborating evidence supporting this allegation.

Plaintiff also offers no evidence with regard to the allegations against defendant Richard Botello, whom he asserts choked him during the blood draw. Defendants do not concede that Botello did this, nor do they submit evidence in denial of this claim. However, they argue that if defendant Botello did indeed use a choke restraint, it was done in order to obtain a blood draw from plaintiff, and that the force used in restraining plaintiff was reasonable in light of plaintiff's prolonged resistance and combative behavior throughout his arrest and detention.

However, given the starkly different accounts of plaintiff's arrest, the court cannot decide the issue of qualified immunity in defendants' favor on this summary judgment motion. Specifically, there are genuine disputes as to material facts regarding whether or not plaintiff resisted the officers' commands, in addition to the amount and type of force used if, in fact, he did resist. "Where such disputes exist, summary judgment is appropriate only if Defendants are entitled to qualified immunity on the facts as alleged by the non-moving party." Blankenhorn, 485 F.3d at 477 (citing Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991)). Here, viewing the disputed facts in favor of plaintiff, the court cannot conclude on the present motion for summary judgment that defendants are entitled to qualified immunity.*fn4 As recounted above, plaintiff has averred that he did not resist arrest, and that he suffered injuries from force that was disproportionate to that needed to effect his arrest. Because there are significant factual disputes about the circumstances surrounding plaintiff's arrest and detention, the court cannot say that the force used by Botello was, as a matter of law, reasonable under the circumstances. If a fact-finder believes plaintiff's version of the events, it may reasonably conclude that excessive force was used. Moreover, although the court does nor purport to resolve the dispute over whose version is true, if plaintiff's account is accepted the law was clearly established that such unprovoked application of force is unreasonable.

Based on the foregoing, the court cannot say as a matter of law that no constitutional violations occurred, or that the force used was reasonable under the circumstances. Accordingly, the court must recommend that defendants' motion for summary judgment be denied.

D. City of Vallejo's Bankruptcy Petition and Appropriateness of Stay

After defendants' summary judgment motion was taken under submission, defendants filed a "Notice of Automatic Stay." In that filing, defendants indicated that the City of Vallejo had filed a bankruptcy petition under chapter 9 of the United States Bankruptcy Code, 11 U.S.C. §§ 101, et seq., and that pursuant to 11 U.S.C. § 362, this case had been automatically stayed.

However, upon review of the notice, the undersigned ordered defendants to file supplemental briefing regarding the applicability of § 362 to this action, in which the City of Vallejo (the "debtor), is no longer a party. Having considered defendants' briefing, the court finds that the stay provisions of § 362 should apply to this action.

Section 362(a)(1) operates to stay all actions against a debtor who has filed a bankruptcy petition. White v. City of Santee (In re White), 186 B.R. 700, 703 (B.A.P. 9th Cir. 1995). These automatic stay provisions of § 362(a)(1) generally apply only to actions against the debtor. In re Family Health Servs., 105 B.R. 937, 942 (Bankr. C.D. Cal. 1989).

However, § 362(a)(1) has been applied to stay actions against non-debtor third parties in "unusual circumstances." In re Family Health Servs., 105 B.R. at 942. For example, courts have found the stay applicable where the non-debtor third party is entitled to absolute indemnity from the debtor such that the debtor is, in effect, the real party defendant. Id. (citing A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 1001-02 (4th Cir. 1986)). Further, § 362(a)(3) provides for an automatic stay of any act, whether against the debtor or third parties, to obtain possession or to exercise control over property of the debtor. Id. (citing 11 U.S.C. § 362(a)(3)). Property of the estate is defined in § 541 as "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1).

Here, although the City of Vallejo is no longer a party to this action, this case is one that would necessarily affect its property if a judgment is entered in plaintiff's favor, or even if the case settles. Pursuant to Cal. Gov't Code § 995, a public entity is required to defend its employees in civil actions for acts or omissions occurring within the scope of their employment, regardless of whether they are named in their individual or official capacities. Further, if the action results in a judgment adverse to the employee, or settles, the public entity is required to indemnify the employee for the amount of the judgment or settlement. See Cal. Gov't Code §825(a). Because the City of Vallejo is required to represent the remaining defendants throughout the balance of this case and to satisfy any judgment or settlement, this case is, in effect, one against the debtor, and constitutes an act to obtain possession over property in the estate. Accordingly, the court finds that § 362(a) applicable and recommends that the action be stayed on that basis.*fn5


In accordance with the foregoing, IT IS ORDERED that plaintiff shall refrain from sending any further, inappropriate e-mail messages to the court or its personnel. Failure to comply with this order, or with the Federal Rules of Civil Procedure and this court's local rules, will result in sanctions. Sanctions may include a recommendation of dismissal.

Further, IT IS RECOMMENDED that defendants' motion for summary judgment be denied, and that this action be stayed pursuant to chapter 9 of the United States Bankruptcy Code, 11 U.S.C. § 362(a).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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