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Darulis v. Clark

March 16, 2010

MARK DARULIS, PLAINTIFF,
v.
SAN DIEGO POLICE OFFICER G. CLARK #8644; A. BOLLIG #4565; OFFICER JAMES COLDREN, J.C. TOWING, INC; BORDER AGENT SILVA, DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT THOMAS SILVA'S MOTION FOR SUMMARY JUDGMENT HEARING [Docket No. 58]

This matter comes before the Court on Defendant Thomas Silva's motion for summary judgment. Plaintiff has filed an opposition to the motion and Defendant has filed a reply. For the reasons set out below, the Court grants in part and denies in part Defendant's motion.

I. FACTUAL BACKGROUND*fn1

This case arises out of an incident at the San Ysidro Port of Entry on March 16, 2008. Plaintiff Mark Darulis was returning to the United States from Mexico on his motorcycle when he was directed to proceed to the secondary inspection area. Plaintiff complied with that order, and began pushing his motorcycle to a parking stall. Once inside a stall, Plaintiff parked his motorcycle and stood next to it while waiting for an agent to arrive. When Defendant Silva appeared, he told Plaintiff to sit on his motorcycle while he was waiting. Plaintiff did not comply. Another agent appeared and he and Defendant Silva handcuffed Plaintiff and took him into a security office. Defendant Silva and the other agent then left the office. Plaintiff remained at a counter in the office for approximately fifteen minutes. During this time, he complained of shoulder pain, but he did not receive any medical treatment. Defendant Silva then returned to the office and removed Plaintiff's handcuffs. When he did so, he "jerked" Plaintiff's hands up towards the middle of his back. After the handcuffs were removed, Plaintiff was subjected to a pat-down search, and he was fingerprinted and photographed. He was then allowed to leave the Port of Entry. Within the next thirty minutes, Plaintiff's shoulder pain resolved. Plaintiff did not seek any medical treatment.

On December 18, 2008, Plaintiff, proceeding pro se, filed the present case. Liberally construed, the Complaint alleges claims for unlawful seizure in violation of the Fourth Amendment, excessive force in violation of the Fourth Amendment, and a Fifth Amendment due process violation.

II. DISCUSSION

Defendant Silva moves for summary judgment on all of Plaintiff's claims on the basis of qualified immunity.

A. Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence of his own). More than a "metaphysical doubt" is required to establish a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

B. Qualified Immunity

Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Claims of qualified immunity require the court to consider two questions: (1) whether the facts alleged, taken in the light most favorable to the party asserting the injury, show the defendant's conduct violated a constitutional right, Saucier v. Katz, 533 U.S. 194, 201 (2001), and (2) whether the right was clearly established -- that is, whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. Saucier required that courts consider these questions seriatim. However, in Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808 (2009), the Court abandoned that approach in favor of a more flexible rule. Now, rather than proceeding through the rigid two-step process, courts are free "to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 818.

1. Unlawful Seizure

The first claim at issue in this case is Plaintiff's claim that he was subjected to an unlawful seizure in violation of the Fourth Amendment. Defendant argues Plaintiff was not seized, therefore there ...


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