The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
This is an action for compensatory and punitive damages by plaintiff David Amezcua ("Plaintiff") against City of Fresno and Fresno Police Department ("Fresno") and Fresno Police Officer Bryan Williams ("Williams") (collectively, "Defendants"). In the instant motion, Defendants move for summary judgment or, in the alternative summary adjudication. For the reasons that follow, the court will deny the motion for summary judgment as to Williams and will grant the motion for summary judgment as to the entity defendants City of Fresno and Fresno Police Department.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
This case was removed to this court from the Fresno County Superior Court on August 31, 2007. The complaint alleges a single claim for relief pursuant to 42 U.S.C. § 1983. The complaint arises from an arrest that occurred on February 5, 2005, at Selland Arena in Fresno. The complaint alleges Plaintiff was leaving a concert with his wife and an associate and his wife. As they were exiting the arena, Plaintiff was heard by Williams to make a sound that resembled a "bark." Williams, a uniformed police officer on duty at the concert, interpreted the "bark" as possibly a gang-related signal; one that is understood by law enforcement to be used by members of the Hispanic Fresno Bulldogs gang. Williams stopped Plaintiff for questioning. The complaint alleges Plaintiff stated that he was not a gang member. The complaint alleges that Williams told Plaintiff that Plaintiff was being arrested for public intoxication and applied handcuffs extremely tight so that they cut into Plaintiff's wrists.
The complaint alleges the arrest was without probable cause in violation of Plaintiff's Fourth Amendment Rights. The complaint also alleges the elements of entity liability against County of Fresno and against Fresno Police Department, but alleges no facts pertaining to the role of either public entity in Plaintiff's arrest.
The instant motion for summary judgment was filed on October 21, 2008. Plaintiff filed a response to Defendants' alleged undisputed material facts, and submitted a number of declarations in support of Plaintiff's separate list of disputed material facts. The court's docket record does not, however, reflect the filing of any memorandum of points and authorities by Plaintiff is support of his opposition to Defendants' motion for summary judgment. Defendants filed a reply memorandum on November 11, 2008, wherein they note the absence of any memorandum of points and authorities having been filed by Plaintiff in opposition.
UNDISPUTED MATERIAL FACTS
The following facts are undisputed unless otherwise noted. On February 5, 2005, Williams and a partner from the Fresno Police Department were working with several other officers monitoring a concert at Selland Arena in Fresno. The officers were aware that local gang members were in attendance at the concert. Williams was familiar with the notorious Hispanic Bulldog gang in Fresno, which often expressed themselves by barking or making other dog-like sounds.
Plaintiff consumed a beer prior to attending the concert at Selland Arena. He consumed a second beer while at the concert with his wife and another couple. As Plaintiff was leaving the concert, Plaintiff drank some of the remainder of his wife's beer.
Defendants allege that, as Plaintiff was exiting the concert, he made a "growling 'ruff'" sound to his wife, which he admitted could have sounded like a dog. Plaintiff disputes this fact. Plaintiff submits the declaration of his wife which states that Plaintiff made an affectionate sound like a "tiger growl," which she alleges cause Williams to approach Plaintiff and thereafter arrest him for public intoxication. Defendants allege Williams and Officer Campos, an unnamed police officer who was with Williams, approached Plaintiff after they heard the alleged "growling ruff" sound, because they were concerned that Plaintiff might be a Bulldog gang member trying to incite other gang members present.
Defendants allege that, when Williams got close to Plaintiff, he detected a strong odor of alcohol or beer on Plaintiff's breath. Plaintiff disputes this fact by alleging that he was not intoxicated at the time and that he requested a breath alcohol test, but the test was refused. The parties agree that about this time, Plaintiff commence a long and loud diatribe of "obscenities, threats and racially offensive insults at [. . .] Williams." Defendants' UMF # 10. The parties dispute when the diatribe occurred. Plaintiff alleges the diatribe occurred after he was placed under arrest, Defendants' alleged it was before the arrest.
There is no dispute that Plaintiff identified himself to Williams as a Fresno County Probation officer, but refused to provide identifying information necessary for booking.
Plaintiff points out in his proffered list of disputed material facts that he was not charged with any criminal offense related to the incident in question. He does not directly deny that his breath smelled of alcohol, but he denies that he was intoxicated to the point of being unable to care for his "own safety and the safety of others." Doc. # 17 at ¶ 14. He alleges he was not given the opportunity to take a breath test, and that there was no probable cause for his arrest on the charge of public intoxication. Plaintiff also alleges it is the policy of Fresno Police Department to not give field sobriety tests to persons suspected of intoxication "to confirm whether and ...