Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Low v. Stanton

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 25, 2009

TONY RICHARD LOW, PLAINTIFF,
v.
GARY R. STANTON, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with several civil claims brought pursuant to 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and state law. Before the court is a motion for summary judgment brought on behalf of defendants Garrison and Rodriguez, correctional deputies employed at the Solano County Jail at the time of the incidents involved in this action. Plaintiff has filed an opposition to the motion for summary judgment and defendants have filed a reply. COMPLAINT

In his verified complaint, signed under the penalty of perjury, plaintiff alleges that defendants Garrison and/or Rodriguez were involved in three separate incidents in which he was subjected to the excessive use of force while incarcerated at the Solano County Jail.

I. June 30, 2005 Incident

Plaintiff alleges that on June 30, 2005, he was talking to an Officer Prestridge about the telephone being turned off which was preventing him from making calls to obtain bail.

I attempted to tell Officer Prestridge that I was attempting to bail out when Defendant Garrison came from behind Officer Prestridge and grabbed me by the neck and pushed my head into the wall. Defendant Garrison then turned me around by grabbing my arms and slammed my face and chest area into the wall and began shoving me up the stairs to my cell.

At no time did I attempt to resist defendant Garrison.

As a result of Defendant Garrisons [sic] slamming my head and face into the wall I chipped my front tooth and had dizzy spells for several weeks. (Compl. at 7, ¶¶ 18-21.)

II. July 4, 2005 Incident

Plaintiff alleges that on July 4, 2005, he was in the dayroom area of the jail and pushed the intercom button to request that the telephone in the cell be turned on so he could call a bail bond company. (Id.) Defendant Garrison threatened plaintiff and told him that if he didn't stop pushing the intercom button, he was going to "beat my ass." (Id. at 8.) Plaintiff also alleges that:

At approximately 1150 am [sic] Defendant Garrison and Rodriguez opened the dayroom unit door.

Defendant Garrison immediately rushed towards me with closed fists and said "I told you I'd beat your ass[.]"

At this point defendant Garrison began to strike me with closed fists about the head and upper torso area striking me several times in the face.

I fell to the floor and defendant Rodriguez began kicking me in the rib area and stomped on my neck with his boot.

Defendants Garrison and Rodriguez then dragged me accross [sic] the concrete floor and kicked me inside my cell. (Id., ¶¶ 26-30.)

III. July 19, 2005 Incident

According to plaintiff on July 19, 2005, defendant Garrison and deputy Weary were conducting a search of plaintiff's cell. (Id. at 9.) Defendant Garrison questioned plaintiff about a missing "TV outlet fixture" and plaintiff responded, "What are you talking about?" (Id.) Defendant Garrison then began throwing plaintiff's property out of his cell and continued to demand the TV pieces while threatening plaintiff, saying "I am going to beat your ass again, worse than before, wheres [sic] the TV pieces." (Id.)

Due to my absolute fear of defendant Garrison and having no other recourse in obtaining help I fled out of the unit door to get away from defendant Garrison.

I fled towards an area I knew was observed by video monitoring systems in the hope defendant Garrison would not effectuate his threat due to the video cameras.

Defendant Garrison chased me to the door of the unit control tower where I was screaming for help.

I fell to the floor directly under a video camera and curled into a fetal position behind two carts[.]

Defendant Garrison began punching me repeatedly in the head and back of my neck area.

Defendant Garrison was punching me with his fists in my head so hard that he sustained serious injuries to his hand/wrist area.

The last thing I recall was defendant Garrison holding his hand and kicking me in the head.

As a proximate result of the actions of defendant Garrison, plaintiff suffered a broken tooth, swollen eyes, broken lip, strained ligaments and soft tissue damage, and numerous bruises to his head and face. (Id. at 10, ¶¶ 40-47.) Plaintiff contends that during this incident, he "did not resist or threaten the defendants in any fashion." (Id. at 11.)

IV. Relief Requested

Plaintiff seeks a declaratory judgment that "[t]he physical abuse of the plaintiff by

Defendants Garrison and Rodriguez violated the plaintiff's rights under the Fourth, Fourteenth, and Eighth Amendments to the United States Constitution and constituted an assault and battery under state law[.]" (Id. at 40-41.) He also seeks $100,000 in compensatory damages from defendants Garrison and Rodriguez for "physical and emotional injuries sustained as a result of the plaintiffs [sic] beating" and $25,000 in punitive damages from each defendant. (Id. at 44-45.)

SUMMARY JUDGMENT STANDARDS UNDER RULE 56

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where 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).

On December 8, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

LEGAL STANDARDS FOR EXCESSIVE FORCE CLAIMS

Plaintiff claims that defendants Garrison and Rodriguez subjected him to the excessive use of force in violation of his rights under the Eighth, Fourth, and Fourteenth Amendments.

The appropriate constitutional standard to apply in assessing an excessive use of force claim depends on the juncture in the custodial continuum when the alleged incident occurred. See Pierce v. Multnomah County, Or., 76 F.3d 1032, 1042 (9th Cir. 1996) (acknowledging that the appropriate legal standard for an excessive force claim depends on the particular juncture of the custodial continuum); see also Graham v. Connor, 490 U.S. 386, 393 (1989) ("We reject the notion that all excessive force claims brought under § 1983 are governed by a single generic standard."). The custodial continuum runs through the initial arrest or seizure, post-arrest but pre-charge or pre-hearing custody, pretrial detention, and post-conviction incarceration. See Pierce, 76 F.3d at 1042; Leialoha v. MacDonald, Civ. No. 07-00218 ACKKSC, 2008 WL 2736020, at *5 (D. Hawaii, July 11, 2008) (Fourth Amendment standard applies to claims based on excessive force during an arrest, investigatory stop or other pre-arraignment seizure; Fourteenth Amendment Due Process standard governs such claims against post-arraignment detainees and Eighth Amendment protections apply post conviction).

The Supreme Court has held that the Fourth Amendment governs excessive force claims arising during the "course of an arrest, investigatory stop, or other 'seizure' of a free citizen[.]" Graham, 490 U.S. at 395. The Fourth Amendment guarantees the right "to be secure in their persons . . . against unreasonable . . . seizures." U.S. Const. amend. IV. In such cases the court considers whether the use of force was reasonable which "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (internal quotation marks omitted). Careful attention is given to the facts and circumstances of the case, "including 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. The evil intent or motivation of the officer does "not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id. at 397. A plaintiff may prevail on an excessive force claim arising during the course of an arrest or investigatory stop even where there is no significant injury. See Wilke v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993) (holding that a plaintiff may be entitled to nominal damages for a Fourth Amendment violation based on excessive use of force even though he did not suffer actual damages or significant injury).

The next stage of the continuum is after the arrest but prior to arraignment. The Supreme Court did not resolve the question as to when the Fourth Amendment protection ends and the Due Process Clause protection for pretrial detainees begins. Graham, 490 U.S. at 395 n.10. The Ninth Circuit, however, has held that the Fourth Amendment continues to afford protection to an "arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest." Pierce, 76 F. 3d at 1043. See also Lolli v. County of Orange, 351 F.3d 410, 415-17 (9th Cir. 2003) (applying Fourth Amendment standards for excessive force claim brought by a pre-arraignment detainee); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (applying Fourth Amendment standards to an excessive force claim involving a pre-arraignment detainee); Leialoha, 2008 WL 2736020, at *5 .

Following arraignment, a pretrial detainee is protected by the Fourteenth Amendment's substantive Due Process Clause. See Graham, 490 U.S. at 395 n.10 (noting that "the Due Process Clause protects a pretrial detainee from the use of excess force that amounts to punishment"); Pierce, 76 F.3d at 1042; Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991) (en banc) (applying the Due Process standard in a case where a pretrial detainee was assaulted); Leialoha, 2008 WL 2736020, at *5; Henderson v. Young, No. C05-0234 VRW/WAF, 2008 WL 564712, at *3 (N.D. Cal. Feb. 28, 2008) (analyzing the decisions in Lolli, Gibson and Pierce and concluding that "the Due Process Clause alone applies to the use of force after arraignment and before conviction."); Walck v. Dunkerson, No. CV 04-55-H-DWM, 2007 WL 4179411, *10 (D. Mont. Nov. 16, 2007) ("So far as this Court is aware, the Ninth Circuit has not decided any case by analyzing under the Fourth Amendment a claim brought by a pretrial detainee, here used to mean someone held on a judicial determination of probable cause.").

An analysis of whether a substantive due process violation has been shown in this context requires the balancing of several factors focusing on the reasonableness of the officers' actions under the circumstances. White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990); Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 1987). Thus, in determining whether there has been egregious government conduct in the form of excessive use of physical force the four factors to be considered are (1) the need for the application of force, (2) the relationship between the need and the amount of force that was used, (3) the extent of the injury inflicted, and (4) whether force was applied in a good faith effort to maintain and restore discipline.

White, 901 F.2d at 1507. See also Smith, 818 F.2d at 1417; Gaut v. Sunn, 810 F.2d 923, 924 (9th Cir. 1987). Although the extent of the injury suffered by the plaintiff is a factor to be considered in such cases, it is viewed in relation to the other relevant factors. See Grinage v. Leyba, No. 2:06-CV-0835-RLH-GWF, 2008 WL 199720, at *5 (D. Nev. Jan. 17, 2008) (comparing substantive Due Process and Eighth Amendment cases and concluding that "[u]nder a similar due process analysis, evidence that detention officers engaged in an unprovoked and unjustified beating of a pretrial detainee would be sufficient to violate the Due Process Clause even though the plaintiff's injuries may not be considered significant or serious."); Escareno v. C/o Bangs, No. CV-06-5005-EFS, 2007 WL 4287273 (E.D. Wash. Dec. 4, 2007) (applying White's four factors and finding that there was a need for the use of force due to plaintiff's aggressive behavior, the amount of force used was proportional to the need to use force, the injuries suffered were minor and insufficient to demonstrate that defendant used excessive force, and force was applied in a good faith effort to maintain and restore discipline); Walck, 2007 WL 4179411, at *11 (granting summary judgment in favor of defendants where there was a legitimate need to apply force by using handcuffs during transport when plaintiff was extremely volatile in his interactions with officers and there was no evidence to either suggest that the use of handcuffs was excessive or that plaintiff suffered any lasting or significant injury).

Finally, at the final juncture in the custodial continuum, "[a]fter conviction, the Eighth Amendment serves as the primary source of substantive protection . . . in cases . . . where the deliberate use of force is challenged as excessive and unjustified." Graham, 490 U.S. at 395 n.10 (internal quotation marks omitted); see also Leialoha, 2008 WL 2736020, at *5.

ANALYSIS

In moving for summary judgment in their favor, counsel for defendants Garrison and Rodriguez have analyzed plaintiff's claims involving each of the alleged incidents under the Fourth, Fourteenth, and Eighth Amendments. However, as the court has determined above, the applicable legal standard is based on the custodial status of the plaintiff at the time of each of the incidents alleged.

I. Eighth Amendment Claims

In his complaint, under "Claims for Relief," plaintiff alleges that the use of "physical force against the plaintiff" by defendants Garrison and Rodriguez constituted cruel and unusual punishment in violation of the Eighth Amendment. (Compl. at 27-29, ¶¶ 142, 146, 150.) Defendants argue that the Eighth Amendment applies only to convicted prisoners and that plaintiff, as a pretrial detainee during all of the incidents alleged in his complaint, cannot be entitled to relief under the Eighth Amendment. (Defs.' P&A at 14.) The court agrees. Since the incidents alleged by plaintiff in his complaint all occurred prior to plaintiff's conviction, the Eighth Amendment does not apply here. Therefore, defendants' motion for summary judgment should be granted as to all of plaintiff's Eighth Amendment claims.

II. Fourth Amendment Claim: June 30, 2005 Incident Involving Defendant Garrison The parties have not addressed plaintiff's custodial status on June 30, 2005. The

court has assumed for purposes of ruling on the pending motion that plaintiff had not yet been arraigned on criminal charges at the time this excessive use of force allegedly occurred. The court feels safe in this assumption based on the fact that plaintiff was not arrested until June 29, 2005 and this alleged incident occurred the next day at approximately 9:00 a.m. Therefore, assuming plaintiff was a pre-arraignment detainee at the time, the applicable legal standard to be employed is based on the Fourth Amendment. As discussed above, that standard requires the balancing of the nature and quality of the force used with the governmental interest at stake in determining whether the use of force was reasonable.

A. Defendant's Motion

Defendant Garrison contends that he did not use any force on plaintiff on June 30, 2005. According to defendant Garrison's evidence, on that day plaintiff was in the dayroom using the telephone, dressed only in his underwear and t-shirt. (Mot. for Summ. J., Mem. P. & A. (Defs.' P&A), at 8; Prestridge Decl. (Doc. No. 132, Part 11) ¶ 3 at 1; Garrison Decl. (Doc. No. 132, Part 7) ¶ 4 at 2.) Because plaintiff was violating Solano County jail rules by not being fully dressed when out of his cell and because unlock time had concluded and plaintiff was to return to his cell, Officer Prestridge ordered that the telephone be turned off. (Prestridge Decl. ¶ 4 at 1-2; Garrison Decl. ¶ 5 at 2.) Plaintiff became angry and ran towards the dayroom door where Officer Prestridge was located. (Id.) Prestridge ordered plaintiff to return to his cell. (Id.) Plaintiff became more angry, yelled at Prestridge and a brief argument ensued. (Id.) Officer Collins came to assist Prestridge and plaintiff was repeatedly ordered to return to his cell. (Id.) Plaintiff eventually complied with that order. (Id.) Defendant Garrison entered the dayroom to provide assistance but remained on the dayroom floor as Officers Collins and Prestridge escorted plaintiff to his cell. (Prestridge ¶ 5 at 2; Garrison Decl. ¶ 6 at 3.) Defendant Garrison declares that "[a]t no point during this incident on July 30, 2005, did I make physical contact with LOW or apply any physical force." (Garrison Decl. ¶ 7 at 3.) Defense counsel argues that since there is no evidence before the court that defendant Garrison used any force against plaintiff on the day in question, he is entitled to summary judgment on this claim. (Defs.' P&A at 18.)

B. Plaintiff's Opposition*fn1

In his opposition to the pending motion, and the declaration in support thereof, plaintiff repeats the allegations of his complaint. According to plaintiff, on June 30, 2005, he was talking to Officer Prestridge when defendant Garrison came from behind Officer Prestridge, grabbed plaintiff by the neck and pushed his head into the wall. (Pl.'s. Decl. (Doc. No. 168) ¶ 4 at 2.) In this regard, plaintiff states as follows:

Defendant Garrison then turned me around by grabbing my arms and slammed my face and chest area into the wall and began shoving me up the stairs to my cell. At no time did I attempt to resist defendant Garrison.

(Id. at 2.) Plaintiff also points to the incident report form prepared by Officer Prestridge which classified the incident violations as "#02-Obey all Lawful Orders; #08-Refusal to Lockdown; and #28-Courtesy and Respect." (Headley Decl. in Support of Stanton and Headley's MSJ (Doc. No. 135, part 11), Ex. B.) The form also provides the following information: "Use of force? Y" and "Inmate Violence? N." (Id.) Plaintiff points out that Officer Prestridge reported the following about the incident:

AT 0900 AM ON THE ABOVE DATE, THE TOP TIER

UNLOCK IN D-MOD HAD ENDED WHEN I NOTICED INMATE LOW, TONY USING THE PHONE IN THE DAYROOM WEARING ONLY HIS BOXERS AND T-SHIRT.

AT THIS POINT I HAD THE TOWER TURN OFF THE PHONE CAUSING INMATE LOW TO BECOME ANGRY AND COME RUNNING UP TO ME AT THE DAYROOM DOOR. I ORDERED INMATE LOW TO LOCK DOWN. INMATE LOW BECAME EVEN MORE ANGRY SAYING THAT HE WAS TRYING TO BAIL OUT. AT THIS POINT MYSELF, OFFICER COLLINS AND OFFICER GARRISON RESTRAINED INMATE LOW AND ESCORTED HIM BACK TO HIS CELL. INMATE LOW CONTINUED TO RESIST ALL THE WAY TO HIS CELL. (Headley Decl., Ex. B at 2; Prestridge Decl., Ex. A) (emphasis added). Finally, plaintiff declares that he was never informed or warned about improper attire and that he did not receive a rule infraction for wearing improper attire in connection with this incident. (Pl.'s Decl. ¶¶ 13-14.)

C. Defendant's Reply

Defendant Garrison repeats his assertion that he did not use any force but was simply present while plaintiff was escorted to his cell. Counsel on behalf of defendant Garrison contends that there is no evidence that plaintiff suffered any injuries as a result of the June 30, 2005 incident. (Reply (Doc. No. 172) at 2.) Defense counsel points out that although plaintiff now contends that he suffered a cracked tooth and dizzy spells for several weeks after June 30, 2005, plaintiff was seen by medical staff the following day and there was no report of any injuries. (Id.)

D. Discussion

Defendant Garrison has presented evidence indicating that he had no physical contact with plaintiff on June 30, 2005. In this regard, he has provided the court with his own declaration, the declaration of Officer Prestridge stating that defendant Garrison had no contact with plaintiff and the declaration of consultant and law enforcement trainer Don Cameron who reviewed documents and determined that there was no evidence of any use of force by defendant Garrison.*fn2 In opposing summary judgment, plaintiff has submitted evidence in the form of his own declaration stating that defendant Garrison grabbed him by the neck and arms and slammed him against the wall. Moreover, plaintiff points to the incident report before the court prepared by Officer Prestridge which states that defendant Garrison was more than a mere observer and, in fact, assisted in restraining plaintiff on June 30, 2005.

The evidence of the party opposing summary judgment is to be believed. Plaintiff has submitted evidence establishing that a genuine issue as to a material fact does exist. Whether defendant Garrison had physical contact with plaintiff on June 30, 2005 and whether he used excessive force against plaintiff at that time will have to be determined by a jury. Defendant Garrison's argument that he is entitled to summary judgment because plaintiff has failed to establish that he suffered injuries as a result of this incident is unpersuasive. As noted above, a Fourth Amendment excessive use of force claim does not require a showing of significant injury. Therefore, defendants' motion for summary judgment as to plaintiff's Fourth Amendment claim concerning the June 30, 2005 incident should be denied.

III. Fourteenth Amendment Claim: July 4, 2005 Incident Involving Defendants Garrison and Rodriguez

Again, the parties have failed to address plaintiff's custody status at the time of his next alleged incident at the Solano County Jail on July 4, 2005. For purposes of resolving the pending motion the undersigned has presumed that plaintiff was a post-arraignment, pretrial detainee on that date because California Penal Code § 825(a)(1) requires that "the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays." Plaintiff was arrested on Wednesday, June 29, 2005, and July 4, 2005 was a Monday. Plaintiff would presumably have appeared in court and been arraigned on Friday, July 1, 2005. Therefore, the legal standard applicable to plaintiff's excessive force claim stemming from his interaction with the defendants on July 4, 2005, is the Fourteenth Amendment's Due Process Clause.

A. Defendants' Motion

In his declaration, defendant Garrison describes the circumstances resulting in the use of force against plaintiff on July 4, 2005. According to the Garrison declaration, plaintiff was in the dayroom, repeatedly pressing the intercom button to request that he be allowed to use the telephone. (Garrison Decl. at 3.) Garrison informed plaintiff that he was serving a disciplinary sentence and therefore did not have telephone privileges. (Id.) Plaintiff became angry, directed foul language at Garrison and repeatedly insisted to be allowed to use the telephone. (Id.) To enforce discipline, defendant Garrison ordered plaintiff to return to his cell. (Id.) Plaintiff refused and yelled out, "No! I ain't locking down!" (Id.) Defendants Garrison and Rodriguez then entered the dayroom to escort plaintiff to his cell. (Id. at 3-4.) Further, Garrison declares:

When LOW again refused a verbal command by me to return to his cell, I attempted to apply a wrist lock to LOW. As I did, LOW attempted to break free from the hold by spinning away. As he did, I managed to grab LOW by his shirt, turn him to the side, and roll him face-down onto the ground. I immediately laid on top of LOW'S upper body. As I took LOW to the ground, RODRIGUEZ rushed to my aid and laid down on LOW'S lower body. Once he was on the ground, I told LOW to calm down and he quickly did so.

After LOW had calmed down and had been on the ground for no more than a few seconds, I took hold of one of his arms and RODRIGUEZ grasped the other. We then assisted him to his feet and walked him back to his cell.

(Id. at 4, ¶¶ 11-12.) Defendant Rodriguez has provided a similar version of the events in his declaration. See Doc. No. 132, Part 13.

Both defendants assert that at no time during the July 4, 2005, incident was plaintiff punched, kicked or dragged. (Garrison Decl. at 4; Rodriguez Decl. at 3.) Defendant Garrison states that approximately five minutes after plaintiff was placed back in the cell, he asked plaintiff if he had suffered any injuries or needed to see a nurse. (Garrison Decl. at 4.) According to Garrison, plaintiff answered, "no." (Id.) The incident report written by defendant Garrison is consistent with his contention that plaintiff continued to resist the officers:

AS WE ENTERED A-MOD, I TOLD INMATE LOW AGAIN TO LOCK DOWN AND HE REFUSED. I TRIED TO APPLY A WRIST LOCK AND HE PULLED AWAY, AT WHICH TIME OFFICER RODRIGUEZ AND I TOOK HIM TO THE GROUND TO CONTROL HIM. AFTER GAINING CONTROL OF INMATE LOW WHO CONTINUED TO RESIST, WE ESCORTED HIM BACK TO HIS CELL. AFTER ABOUT 5 MINUTES, I ASKED INMATE LOW IF HE NEEDED A NURSE OR HAD ANY INJURIES AND HE STATED NO. (Id., Ex. A.)

Defendants argue that their use of force was necessary because plaintiff refused to return to his cell, the amount of force used was minimal, plaintiff did not require medical care, and force was applied in a good faith effort to restore discipline within the jail. (Defs.' P&A at 22-23.)

B. Plaintiff's Opposition

Plaintiff has submitted a declaration in support of his opposition in which he essentially repeats the allegations of his complaint with respect to the July 4, 2005 incident. According to plaintiff's declaration, he was pressing the intercom button and asking to make a telephone call to a bail bonds company. Defendants Garrison and Rodriguez opened the dayroom door and, [d]efendant Garrison immediately rushed towards me with closed fists and said, "I told you I'd beat your ass. At this point Defendant Garrison began to strike me with closed fists about the head and upper torso area, striking me several times in the face.

(Pl.'s Decl. at 5.) According to plaintiff, when he fell to the floor, defendant Rodriguez kicked plaintiff in the rib area, stomped on his neck, and the defendants then dragged him across the floor and kicked plaintiff inside his cell. (Id.) Plaintiff also disputes defendants' description of the events. He denies using obscene or vulgar language and that he screamed at defendant Garrison over the intercom. (Pl.'s Opp'n at 18-19.) He contends that the two defendants' own versions of the July 4, 2005, incident are inconsistent and that there was no legitimate governmental interest in having two correctional officers leave their control tower posts to confront plaintiff, who was alone in the dayroom. (Id. at 20.)

C. Reply

Counsel for defendants argues that despite plaintiff's allegation that excessive force was used, it is undisputed that plaintiff did not require medical attention as a result of the incident in question. (Reply at 3.) Counsel also contends that plaintiff has failed to present any evidence that unreasonable or excessive force was used against him on July 4, 2005, that there are no genuine issues of material fact in dispute and that the defendants are entitled to summary judgment in their favor. (Id.)

D. Discussion

An analysis of whether a substantive due process violation has been established requires the balancing of several factors focusing on the reasonableness of the officers' actions under the circumstances. In that balancing, the court considers the need for the use of force, the amount of force used, the extent of the injury inflicted and whether the force was applied to maintain and restore discipline. Here, the undersigned concludes that based upon the evidence submitted by the parties, there is a genuine dispute as to each of these factors. Defendants have submitted their own declarations in which they state that plaintiff was refusing to lockdown, that they used minimal force to restore order and did not punch, kick or drag plaintiff and that plaintiff did not suffer any injuries and did not request medical care following the incident. (See Garrison Decl. at 4; Rodriguez Decl. at 3.) Plaintiff counters with his own declaration in which he states that he was merely requesting that the telephone be turned on when defendant Garrison rushed into the dayroom and began to hit him, defendant Rodriguez kicked him in the ribs, stomped on his neck, both defendants dragged him across the floor and kicked him inside of his cell and that as a result he suffered "soft tissue damage including soreness in my neck, bruises, headaches." (Pl.'s Decl. at 5-6.)

The evidence of the party opposing the summary judgment motion is to be believed. Plaintiff has submitted evidence establishing that genuine issues as to a material fact do exist with respect to the events of July 4, 2005. In this regard, genuinely disputed issues have been established as to the need for the use of force, the amount of force used and the extent of the injuries suffered by plaintiff on the day in question. Defendants' motion for summary judgment as to this claim should therefore be denied.

IV. Fourteenth Amendment Claim: July 19, 2005 Incident Involving Defendant Garrison

A. Defendant's Motion

In his declaration submitted in support of his motion for summary judgment on this claim, defendant Garrison states that on July 19, 2005, he was informed by maintenance staff that an electrical outlet in the housing module had been tampered with and that the metal plate, splitter and a number of metal pieces were missing. (Garrison Decl. at 4.) Plaintiff was suspected of the tampering because he had previously dismantled and hidden metal parts. (Id.) Officer Weary and defendant Garrison proceeded to plaintiff's cell to conduct a search and plaintiff was ordered to sit at a table in the dayroom area. (Id. at 5.) Officer Weary stood by plaintiff and was soon joined by Officer Smith. (Id.) While searching plaintiff's cell, defendant Garrison discovered the missing metal plate and two other metal objects from the electrical outlet. (Id.) As the search continued, plaintiff became verbally abusive and then, suddenly, ran out the open door of the module, closing the door behind him. (Id.) The door had to be opened by officers remotely and Officers Weary, Smith and defendant Garrison then pursued plaintiff into the officers' station area. (Id.) Plaintiff ran behind a pair of maintenance carts containing various tools. (Id.) Defendant Garrison declares that at that point,

I ran toward LOW hoping to grab him before he could find something to use as a weapon. Officer Smith quickly took hold of one of the maintenance carts and moved it out of the way while Officer Weary moved the other cart. LOW, however, had managed to pick up an aerosol spray can. As I came upon LOW, I ordered him to put the can down, but he did not. Instead, he raised the can into the air as if he was intending to use it as a weapon against me. In self-defense, I ducked and struck LOW once to the face with my left hand. LOW fell to the ground and dropped the aerosol spray can.

LOW was face down on the ground with his arms underneath him. Using his hands, he attempted to raise himself back to his feet. In a quick effort to restrain LOW, I got on top of LOW. I ordered him to lay flat on the ground and bring his arms out from underneath himself so that I could secure him. The struggle lasted for approximately eight to ten seconds, during which time LOW was repeatedly ordered by the other officers who had rushed to the scene and me to cease his resistence. I soon managed to pull LOW's arm from underneath him and place LOW on his chest. By this time, Officer Davis was laying across LOW's legs as I held down LOW's upper body. Officers Lagrisola, Prestridge, and Mallory grabbed LOW's arms and legs and succeeded in placing LOW in handcuffs, and leg restraints. (Id. at 5-6, ¶¶ 19-20.)

Officers Weary and Prestridge have also provided declarations as well as the incident reports they wrote near the time, supporting defendant Garrison's description of the July 19, 2005, incident. (Weary Decl. (Doc. No. 132, Part 17) and Ex. A; Prestridge Decl., Ex. B.) Officer Lagrisola has also provided a declaration supporting defendant Garrison's version of his efforts to restrain plaintiff. (Lagrisola Decl. (Doc. No. 132, Part 9) at 2.) Officer Lagrisola declares that plaintiff resisted efforts to place him in restraints and that Officer Lagrisola issued several commands to plaintiff to stop resisting and place his hands behind his back. (Id.) According to plaintiff's medical record, he was examined on July 20, 2005, and it was noted that there was no swelling, no broken skin, mild redness, and that lower, inside of his lip had 2-3 red spots. (Wilson Decl. (Doc. No. 132, Part 19), Ex. B - Calif. Forensic Medical Group Progress Notes ( Doc. No. 132, Part 20)).

Defendant Garrison argues that his use of force against plaintiff was reasonable because plaintiff ran from the housing unit, locking the door behind him and that once he was trapped, he picked up a aerosol spray can and brandished it like a weapon. (Defs.' P&A at 23.)

Garrison contends that the amount of force used to disarm plaintiff and to restrain him as he resisted the officers, was appropriate. (Id. at 23-24.) Defendant Garrison also points out that the force used did not result in serious injuries. (Id. at 24.) Finally, defendant argue that force was applied in a good faith effort to restore discipline as plaintiff ran from the housing unit, threatened officers and refused to obey orders. (Id.)

B. Plaintiff's Opposition

Plaintiff has submitted a declaration in support of his opposition in which he essentially repeats the allegations of his complaint with respect to the July 19, 2005 incident. According to plaintiff's declaration, he did not resist or threaten defendant Garrison. (Pl.'s Decl. at 8.) Plaintiff again argues that there are inconsistencies and omissions from the declarations and reports submitted in support of defendant Garrison's summary judgment motion by officers who were eyewitnesses to the incident. Plaintiff points out that Officer Solis, who was in the tower, makes no mention about any weapons nor does he state that defendant Garrison struck plaintiff. (Opp'n at 22.)*fn3 Plaintiff observes that Officers Weary and Smith also do not mention that defendant Garrison struck plaintiff. (Id. at 22-23.) Plaintiff contends that, "[t]here is no legitimate governmental interest in striking plaintiff with such force to knock out his tooth and Garrison seriously injurying [sic] his hands and wrist from striking plaintiff in the head and face." (Id. at 23.) Finally, as to his alleged "escape," plaintiff argues that "prison conditions that threaten the prisoner with substantial bodily injury can justify escape." (Id. at 24.)

C. Reply

In his reply defendant Garrison refers to plaintiff's medical records in arguing that there is no evidence of the unreasonable or excessive use of force in connection with the July 19, 2005 incident. (Reply at 3.)

D. Discussion

As with respect to plaintiff's other excessive use of force claims, the evidence submitted by the parties provide conflicting accounts regarding whether plaintiff resisted and threatened the defendant officers, the amount of force the defendants used, the extent of the injury, if any, suffered by plaintiff, and whether defendants' use of force was justified in order to restore discipline within the jail. Moreover, the lack of medical evidence to support plaintiff's claimed injuries, pointed out by defendants, does not carry the day. The dearth of such evidence may well reflect on plaintiff's credibility, but is not a sufficient basis upon which to grant summary judgment in defendants' favor. As the Ninth Circuit has observed,

Determining whether a police officer's use of force was reasonable or excessive therefore requires careful attention to the facts and circumstances of each particular case and a careful balancing of an individual's liberty with the government's interest in the application of force. [Graham v. Connor, 490 U.S. 386, 396 (1989)]; see Deorle v. Rutherford, 272 F.3d 1272, 1279-81 (9th Cir. 2001). Because such balancing nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly. See, e.g., Liston v. County of Riverside, 120 F.3d 965, 976 n. 10 [(9th Cir.1997)] (citing several cases). This is because police misconduct cases almost always turn on a jury's credibility determinations.

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)) .

This is such a case. Plaintiff has submitted evidence establishing that genuine issues of material fact do exist with respect to the events of July 19, 2005. Genuinely disputed issues have been established as to the need for the use of force, the amount of force used and the extent of the injuries suffered by plaintiff on the day in question. Therefore, defendants' motion for summary judgment in their favor with respect to this claim should be denied.

V. Qualified Immunity

Defendants next argue that they are entitled to summary judgment in their favor on qualified immunity grounds because, even assuming that plaintiff could establish a violation of his constitutional rights, no reasonable correctional officer could have believed at the time that defendants' actions violated a clearly established constitutional right of plaintiff's. (Defs.' P&A at 32.)

"Government officials enjoy qualified immunity from civil damages unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified immunity defense, the central questions for the court are (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the defendants' conduct violated a statutory or constitutional right and (2) whether the right at issue was "clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2001). Although lower courts were previously required to answer these questions in order, the Supreme Court has recently held that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, __ U.S. __, ___, 129 S.Ct. 808, 818 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiry without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 129 S.Ct. at 818.

For the same reasons that the parties' conflicting factual accounts of the July 19, 2005, incident preclude summary judgment in defendants' favor on the merits of the excessive use of force claim, defendants also are not entitled to summary judgment based on qualified immunity.*fn4 See Blankenhorn v. City of Orange, 485 F.3d 463, 477-78 (9th Cir. 2007) (summary judgment properly denied to defendants on plaintiff's excessive use of force claims in light of disputed issues of fact necessary to decide that issue); Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003) ("Where the officers' entitlement to qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the non-moving party, summary judgment [on the ground of qualified immunity] is not appropriate."), cert. denied 543 U.S. 811 (2004); Adams v. Speers, No. CV-F-02-5741, 2004 WL 5567292, *12 (E.D. Cal. Dec. 16, 2004) (denying defendant's motion for summary adjudication in his favor on qualified immunity grounds in light of the factual questions surrounding his actions raised by plaintiff's evidence).

VI. Plaintiff's Other Claims

A. State Law Claims

In his complaint plaintiff alleges that defendants' use of force against him constituted "the tort of assault and battery under the law of California." (Compl. ¶¶ 143, 149, 153 at 27-30.) Plaintiff also alleges that during medical and doctor visits for treatment of his injuries, officers were present and "eaves dropping (sic) on the confidential physician patient conversations in violation of Penal Code § 636(b)." (Id. ¶ 96 at 19.) Plaintiff contends that during his physical conducted by jail medical personnel, defendant Garrison remained "in the area so plaintiff was scared of complaining to [sic] loud about his chipped tooth in fear of retallitory [sic] action by defendant Garrison." (Id. ¶ 97 at 19-20.)

Defendants move for summary judgment on these state law claims, arguing that plaintiff failed to comply with California's Government Claims Act which requires that a claim be presented to the Board of Supervisors no more than six months after the cause of action accrues. (Defs.' P&A at 24.) In this regard, defendants rely upon the decisions in State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1243-45 (Cal. 2004) (discussing claim presentation requirement under California's Tort Claims Act) and Mangold v. California Pub. Util. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) ("The California Tort Claims Act requires, as a condition precedent to suit against a public entity, the timely presentation of a written claim and the rejection of the claim in whole or in part."). Because plaintiff failed to comply with the California Tort Claims Act, defendants argue, summary judgment should be granted in their favor with respect to plaintiff's claims for assault, battery and eavesdropping. (Id. at 25.)

Citing California Government Code § 950*fn5 , plaintiff argues that the claims presentation requirement applies only to claims brought against a public entity and not to claims against a public employee. (Opp'n at 29.)

Plaintiff is mistaken. As a district judge of this court has observed: To the extent that plaintiffs bring state tort claims against Officer Sexson and Agent Corral, these claims must be dismissed. It is well established that to sue a public employee under California law, a plaintiff must first file a claim with the employing public entity. See Cal. Gov. Code § 950.2. [fn omitted] Section 950.2 of the California Government Code mandates that a cause of action against a public employee . . . for injury resulting from an act or omission in the scope of his employment as a public employee is barred unless a timely claim has been filed against the employing public entity. Fowler v. Howell, 42 Cal. App.4th 1746, 1750, 50 Cal. Rptr.2d 484 (1996). The California Legislature included in the Tort Claims Act what amounts to a requirement that . . . one who sues a public employee on the basis of acts or omissions in the scope of the defendant's employment [must] have filed a claim against the public-entity employer pursuant to the procedure for claims against public entities. Briggs v. Lawrence, 230 Cal.

App.3d 605, 612-13, 281 Cal. Rptr. 578 (1991) (citing Cal. Gov. Code §§ 911.2, 945. 4, 950.2, 950.6(a)). Indeed, failure to adequately allege compliance with the Tort Claims Act when suing a public employee requires dismissal. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir.1988) (affirming dismissal of pendent state law claims against public employee where plaintiff failed to allege compliance with the Tort Claims Act).

Armstrong v. Sexson, No. CIV. S-06-2200 LKK/EFB, 2007 WL 1219297, *3 (E.D. Cal. April 25, 2007). See also Moran v. Dovey, No. 1:08-cv-00016-AWI-SMS PC, 2009 WL 276783, *5 (E. D. Cal. Feb. 5, 2009) ("To state a tort claim against a public employee, a plaintiff must allege compliance with the Tort Claims Act."); Rutlege v. County of Sonoma, No. C 07-4274 CW, 2008 WL 4414740, *4-5 (N.D. Cal. Sept. 26, 2008) (granting motion to dismiss brought by a defendant DOJ criminalist on the ground that plaintiff had failed to comply with the California Tort Claims Act claims-presentation requirement); Santos v. Merritt College, No. C-07-5227 EMC, 2008 WL 2622792, *4 (N.D. Cal. July 1, 2008); McConnell v. Lassen County, California, No. Civ. S-05-0909 FCD DAD, 2007 WL 1931603, * 12 (E.D. Cal. June 29, 2007) (granting summary judgment in favor of public employee defendants in part due to plaintiff's failure to comply with the claim-presentation requirement of the California Tort Claims Act).

In arguing that the claim-presentation requirement does not apply to actions brought against public employees, plaintiff implicitly concedes that he has failed to comply with the requirements of the California Tort Claims Act. Accordingly, defendants are entitled to summary judgment in their favor as to these state claims.

B. Federal Right to Privacy Claim

In his complaint, plaintiff alleges as follows: It is the practice, and custom for defendant Stanton's agents to stand next to pretrial detainees during all medical visits and doctor visits eaves dropping on the confidential physician patient conversations in violation of Penal Code § 636 (b).

During my physical with Defendant Michelle[,] Defendant Garrison was in the area so plaintiff was scared of complaining to [sic] loud about his chipped tooth in fear of retallitory [sic] action by defendant Garrison.

(Compl. at 19-20, ¶¶ 96-97 .) However, in his claim for relief, plaintiff alleges:

The failure of Defendant Stanton to ensure his agents do not violate California Penal Code § 636(b) by eavesdropping on the confidential physician patient conversations constitutes diliberate [sic] indifference and further denied the plaintiff the right of privacy explicitly guaranteed by Article 1 § 1 of the California Constitution and the Fourth Amendment of the United States Constitution. (Id. at 36, ¶ 173.) Plaintiff has not sought monetary damages or any other relief with respect to this claim in his complaint.

In an abundance of caution, counsel for defendant Garrison argues that if plaintiff has alleged a claim against the defendant for violating plaintiff's federal right to privacy, summary judgment should be granted in favor of defendant Garrison with respect to any such claim. In this regard, counsel agues that although a prisoner does not lose all rights of privacy, those rights are appropriately severely curtailed as a result of incarceration. (Defs.' P&A at 28-29.) Counsel contends that defendant Garrison's presence in the area while plaintiff received medical care is no evidence of an invasion of plaintiff's privacy. (Id. at 29.)

In his opposition plaintiff argues that he "has a right to be secure in his private communications within the doctor-patient privilege relationship and that defendant did not have a "legitimate justification . . . [for] eavesdropping on plaintiff's private doctor-patient communications[.]" (Opp'n at 36-37.)

As noted above, plaintiff has not requested any relief in connection with this claim and dismissal would be appropriate on that basis alone. Moreover, to the extent plaintiff asserts that he has a right to privacy based on a doctor-patient privilege, the court notes that the privilege is an evidentiary rule which does not confer substantive constitutional rights on plaintiff. See Floyd v. Emmet County Correctional Facility, No. 1:06-CV-283, 2006 WL 1429536, at *4 (W.D. Mich. May 23, 2006) (the privilege is a state evidentiary rule and confers no substantive federal rights); Johnson v. O'Donnell, Inmate Complaint Reviewer, No. 01-C-0257-C, 2001 WL 34372892, at *10 (W.D. Wis. Aug. 24, 2001) ("The physician-patient privilege protects a person who has imparted confidential information to a physician from having such information revealed in the course of litigation . . . . The physician-patient privilege is inapplicable in the context of a prisoner who does not wish security guards to be present at his medical examination."). Therefore, summary judgment should be granted in favor of defendant Garrison as to any federal right to privacy claim brought by plaintiff in this action.

C. Declaratory Relief

In his complaint, plaintiff requests that the court grant him declaratory relief by finding that:

The physical abuse of the plaintiff by defendants Garrison and Rodriguez violated the plaintiff's rights under the Fourth, Fourteenth, and Eighth Amendments to the United States Constitution and constituted an assault and battery under state law.

(Compl. at 40-41.)

The court will recommend that defendants' motion for summary judgment as to plaintiff's request for declaratory relief be granted. Plaintiff seeks a declaration which is duplicative of the relief he would obtain should he prevail at trial.

"A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest." Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431, 68 S.Ct. 641, 92 L.Ed. 784 (1948). "Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties." United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a verdict in favor of plaintiff, that verdict will be a finding that plaintiff's constitutional rights were violated. Accordingly, a declaration that defendants violated plaintiff's right would then be unnecessary.

Rainer v. Calderon, No. 1:04-cv-05545-LJO-DLB (PC), 2008 WL 217488, at *4 (E.D. Cal. Jan. 25, 2008). See also Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1163 n.15 (9th Cir. 2007) (concluding that declaratory relief was unnecessary).

Accordingly, summary judgment should be granted in favor of defendants with respect to plaintiff's request for declaratory relief set forth above.

D. Official Capacity

Finally, defendants Garrison and Rodriguez assert that they are being sued in this action in both their individual and official capacities. They argue that they are not lawmakers or policymakers for the Solano County Sheriff's Department and should be granted summary judgment with respect to all claims in which they are being sued in their official capacity. (Defs.' P&A at 31.)

In his opposition to the pending motion, plaintiff requests that his suit proceed against defendants Garrison and Rodriguez in their individual capacities and that he be allowed to substitute the Solano County Sheriff's Department into this action "as the official capacity defendant for all causes of action against Garrison and Rodriguez[.]" (Opp'n at 27-28.)

Plaintiff's request to "substitute" the Sheriff's Department for an official capacity suit is unsupported by the allegations of his complaint. As the Supreme Court has stated:

More is required in an official-capacity action, however, for a governmental entity is liable under §1983 only when the entity itself is a moving force behind the deprivation; thus, in an official-capacity suit the entity's policy or custom must have played a part in the violation of federal law.

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal citations and quotation marks omitted). Here, the Solano County Sheriff's Department cannot be held liable for an injury inflicted solely by an employee under a theory of respondeat superior. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Monell v. Dep't of Social Services, 436 U.S. 658, 691 (1978); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003) (describing the two routes to municipal liability, where municipality's official policy, regulation or decision violated plaintiff's rights, or alternatively where municipality failed to act under circumstances showing its deliberate indifference to plaintiff's rights). While the pleading requirements for a municipal liability claim are not onerous (see Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002), the complaint before the court does not clearly plead the Solano County Sheriff Department's or the County's liability sufficiently to meet those standards and to permit plaintiff's proposed substitution of parties.

Again, plaintiff's opposition implicitly concedes that he cannot proceed against defendants Garrison and Rodriguez in their official capacities. Accordingly, defendants' motion for summary judgment with respect to plaintiff's official capacity suit against them should be granted.

CONCLUSION

For the reasons set forth above, IT IS HEREBY RECOMMENDED that:

1. The August 13, 2008 motion for summary judgment brought on behalf of defendants Garrison and Rodriguez (Doc. No. 132), be denied as to:

a. Plaintiff's excessive use of force claim brought under the Fourth Amendment concerning the alleged June 30, 2005 incident;

b. Plaintiff's excessive use of force claims brought under the Fourteenth Amendment concerning the alleged July 4, 2005 and July 19, 2005 incidents.

2. The August 13, 2008 motion for summary judgment brought on behalf of defendants Garrison and Rodriguez (Doc. No. 132), be granted as to:

a. Plaintiff's remaining excessive use of force claims brought under the Eighth, Fourth, and Fourteenth Amendments;

b. Plaintiff's state law claims for assault, battery, and right to privacy;

c. Plaintiff's federal right to privacy claim;

d. Plaintiff's request for declaratory relief; and

e. Plaintiff's claims brought against defendants Garrison and Rodriguez in their official capacity.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen 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 five 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.