ORDER AND FINDINGS AND RECOMMENDATIONS
This matter came before the court on December 4, 2009 for hearing of defendant Meier's motion for summary judgment (Doc. No. 41).*fn1 Marcos Alfonso Kropf, Esq. appeared on behalf of the moving party. Plaintiff Chaderick A. Ingram, proceeding pro se, appeared telephonically with leave of court after making a timely request to do so. Oral argument was heard, and defendant's motion for summary judgment was taken under submission.
Also before the court are plaintiff's "Motion for Appealing Judgment or Order Pursuant to Federal Rules of Civil Procedure 73," motion to proceed in forma pauperis on appeal, and motion for transcripts at government expense (Doc. Nos. 50, 51, and 52).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Legal Standards Applicable to a Motion for Summary Judgment
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 judgment as a matter of law. Fed. R. Civ. P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).
A party moving for summary judgment 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.
"[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.'" Celotex Corp., 477 U.S. at 323. 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. Summary judgment should then 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. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). The opposing party must demonstrate that a fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 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). 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).
II. Application of the Standards
Defendant Meier seeks summary judgment or summary adjudication on the ground that he did not violate plaintiff's constitutional or statutory rights on December 29, 2007, and that he is immune from liability on the basis of qualified good faith immunity.
Defendant's motion includes a separate statement of undisputed material facts supported by the declaration of defendant Meier dated November 3, 2009; the declaration of defendant's counsel dated November 3, 2009; and the transcript of plaintiff's deposition taken on June 15, 2009 with three exhibits attached thereto.
Defendant's evidence establishes the following: (1) on the afternoon of December 29, 2007, Officer Jason Meier was working as a Sacramento City Police Officer, in full uniform and in a marked patrol car; (2) Officer Meier saw plaintiff walking in the street, in violation of the California Vehicle Code and the Sacramento City Code; (3) plaintiff admits that he was walking on and off the sidewalk before Officer Meier pulled up and began talking to him; (4) Officer Meier pulled up near plaintiff, began talking to him, and asked him if he was on probation; (5) plaintiff told Officer Meier he was on probation; (6) plaintiff voluntarily said to Officer Meier "Go ahead and search me"; (7) on December 29, 2007, plaintiff was on searchable probation; (8) plaintiff admits and understands that on December 29, 2007 the terms of his probation required that he submit his person, property, automobile, and any object under his control to search and seizure by any law enforcement officer; (9) plaintiff was not wearing a brace or a cast and was not using any other device, such as a cane or crutches, that would have indicated to Officer Meier that plaintiff's leg was injured; (10) Officer Meier searched plaintiff using a pat-down type of search; (11) Officer Meier patted down plaintiff's entire body, including his leg; (12) Officer Meier did not do anything else to plaintiff's body as he performed the pat-down search; (13) Officer Meier did not use or apply any pressure or force to plaintiff other than that reasonably needed to search plaintiff; (14) after Officer Meier searched plaintiff, he handcuffed plaintiff and placed him in the rear of the patrol car; (15) Officer Meier handcuffed plaintiff to restrict his movement, to prevent his possible escape, and to ensure the officer's safety; (16) Officer Meier had plaintiff sit in the rear of the patrol car while he checked to see if plaintiff had any outstanding arrest warrants and also to confirm plaintiff's probation status; (17) plaintiff did not say anything to Officer Meier when the officer placed handcuffs on plaintiff; (18) plaintiff did not say anything to Officer Meier after the officer placed handcuffs on plaintiff; (19) plaintiff did not say anything to Officer Meier after the officer removed the handcuffs from plaintiff; (20) immediately after Officer Meier confirmed plaintiff's probation status and confirmed that plaintiff did not have any outstanding warrants, he removed plaintiff's handcuffs and released him; (21) plaintiff's detention did not last more than approximately 10 to 15 minutes; (22) plaintiff described Officer Meier as being polite when plaintiff was released.
As required by the standards applicable to motions for summary judgment, defendant has identified portions of the pleadings, materials obtained through discovery, and affidavits that demonstrate the absence of a genuine issue of material fact as to plaintiff's claims. The burden thus shifts to plaintiff to establish that a genuine issue as to any material fact actually does exist. Plaintiff must demonstrate that any fact in contention is material, i.e., it might affect the outcome of the suit under the ...