The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER ADOPTING THE MAGISTRATE JUDGE'S SECOND REPORT AND RECOMMENDATION [DOC. # 68]; GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO THE FEDERAL CLAIMS [DOC. ) # 59]; AND DISMISSING THE REMAINING STATE LAW CLAIMS
Currently before the Court is a motion for summary judgment filed by defendants Mark Taylor ("Taylor"), Patrick Sullivan ("Sullivan"), and Brandie Sorbie ("Sorbie") (collectively "defendants"),*fn1 seeking judgment in defendants' favor based on qualified immunity grounds on the claims presented by plaintiff Bennie Dixon ("plaintiff") in his first amended complaint filed pursuant to 42 U.S.C. § 1983. After the motion was fully briefed, the Honorable Leo S. Papas, United States Magistrate Judge, issued a Report and Recommendation ("report") recommending that this Court grant the motion in its entirety and dismiss both the federal and state law claims against defendants.*fn2 Plaintiff filed objections to the magistrate judge's report. After a careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court OVERRULES petitioner's objections, ADOPTS the magistrate judge's report, GRANTS defendants' motion for summary judgment in its entirety and DISMISSES all claims against defendants presented in the first amended complaint.
This case stems from an incident that occurred between plaintiff and defendants on March 9, 2005, after defendants, all law enforcement officers, had responded to a radio call concerning a battery upon a custodian at a school. Plaintiff, fitting the description of the suspect in the battery, was approached by San Diego Police Officer Michelle Johnson,*fn4 who attempted to place plaintiff under arrest. A struggle then ensued between Johnson and plaintiff when plaintiff reached for a walking stick that was lying next to him. Johnson used her expandable baton upon plaintiff's arms after plaintiff stood up quickly, clenched his fists and swung them at her. Sorbie had arrived on the scene just before the struggle ensued and joined in the effort to subdue plaintiff who continued to swing his arms at Johnson. Taylor and Sullivan arrived shortly thereafter and the four officers were able to handcuff plaintiff after striking several blows of their batons upon plaintiff's thighs.
Plaintiff was identified by a school employee as the perpetrator of the battery on the custodian. After plaintiff began making statements about snakes around his ankles, he was transported to County Mental Health for evaluation where it was learned that plaintiff had recently been released from a 24 or 26 day incarceration at the County Jail.
Plaintiff's first amended complaint, the operative pleading here, was filed on December 13, 2006. Defendants filed their answer to the complaint on July 2, 2008. Defendants filed their motion for summary judgment on December 8, 2008. Plaintiff filed his opposition on January 16, 2009.*fn5 The magistrate judge issued the second report*fn6 on February 17, 2009. Plaintiff filed his objections to the magistrate judge's second report on April 1, 2009.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court "shall make a de novo determination of those portions of the report...to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. The party objecting to the magistrate judge's findings and recommendation bears the responsibility of specifically setting forth which of the magistrate judge's findings the party contests. See Fed.R.Civ.P. 72(b). It is well-settled, under Rule 72(b), that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
In his first amended complaint filed pursuant to 42 U.S.C. § 1983, plaintiff alleges that defendants violated his rights under the United States Constitution based on claims for unlawful search and seizure and excessive force. Plaintiff also alleges state law claims for battery, false arrest, negligence, emotional distress, and violation California Civil Code § 52.1. Defendants contend that qualified immunity bars plaintiff's suit.
Section 1983 "creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). "Qualified immunity, however, shields § 1983 defendants '[f]rom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (alteration in original)).
Fourth Amendment protections against unreasonable search and seizure are triggered when an arrest occurs without probable cause or other justification. Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). A showing of probable cause is a defense to a false arrest claim. Arpin v. Santa Clara Valley Trans. Agy., 261 F.3d 912, 920 (9th Cir. 2001). In order to state a claim for excessive force, plaintiff must establish that defendants, acting under color of state law, violated his Fourth Amendment rights by using unreasonably excessive force during arrest. Graham v. Connor, 490 U.S. 386, 396 (1989). However, plaintiff's Fourth Amendment rights are not violated if the use of force is ...