The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case stems from the arrest of Plaintiff Anthony Slama ("Slama") by Madera Police Officers Josh Chavez ("Chavez") and Shant Sheklanian ("Sheklanian")*fn1 for violation of California Penal Code § 148. Slama has brought suit in this Court under 42 U.S. C. § 1983 and alleges four violations of the Fourth Amendment against the City of Madera ("the City"), Chavez, and Sheklanian. Defendants move for summary judgment. Slama has filed no opposition or response of any kind. For the reasons that follow, the Court will grant summary judgment as to the first, third, and fourth causes of action only.
On December 20, 2005, at approximately 1:30 a.m., Slama was arrested for violation of Penal Code section 148(a)(1) -- resisting, delaying or obstructing an officer. DUMF 1. Officers Chavez and Sheklanian had observed Slama walking in the shadows on the South side of East Central Avenue and "D" Street. DUMF 2. This area is known for drug activity. See Chavez Depo. 20:20-24. The officers were in a marked police cruiser. See Sheklanian Depo. 21:17-22:10. The officers exited their vehicle and asked to speak with Slama. DUMF 2;*fn3 Chavez Depo. 11:10-12:25. Slama acted very nervous, and the officers asked Slama if they could search him for weapons. DUMF 3.*fn4 Slama appeared to consent to be searched for weapons as he turned around and placed his arms behind his back. See Chavez Depo. 17:14-18:1; Sheklanian Depo. 32:12-34:16. When the officers began to conduct the search for weapons, they noticed that Slama was tense and his hands were tightened into fists, his right fist appearing especially tight. See Chavez Depo. 19:15-20:6; Sheklanian Depo. 30:22-31:5.*fn5 DUMF 4. Chavez repeatedly told Slama to relax and requested that Slama open his hand, but Slama refused. See DUMF 4; Chavez Depo. 19:15-20:6-11. When Slama refused to comply, Chavez attempted to sweep Slama's legs. See Chavez Depo. 21:5-12. Slama brought his right hand up to his mouth.*fn6 See Chavez Depo. 21:12-15; Sheklanian Depo. 31:5-16. Sheklanian did not see Slama open his mouth or see anything go into Slama's mouth, apparently because Chavez was trying to control Slama, see Sheklanian Depo. 31:3-16,*fn7 but Chavez testified that Slama opened his hand and opened his mouth and then put his hand over his mouth like he (Slama) had just taken something.
See Chavez Depo. 21:14-18; see also DUMF 5.*fn8 Chavez told Slama to "spit it out," but Slama did not do so, and continued to struggled with the officers. See Chavez Depo. at 21:23-22:18; Sheklanian Depo. 31:17-22.*fn9 The officers believed that Slama was swallowing drugs and did not know if Slama had weapons on his person. DUMF 6.*fn10 Slama and the officers struggled until Chavez deployed his Taser. See DUMF 7. After Chavez used his taser, Slama was then taken into custody without further incident. Id.*fn11
The City filed charges against Slama for violation of Penal Code section 148(a)(1) in Madera County Superior Court, Case No. MCR024183. DUMF 8, 21. The charges remained pending until they were dismissed on May 2, 2008. DUMF's 9, 22. The charges were dismissed after Slama was convicted for other separate pending matters. See id.
The City Police Department has a Post Perishable Skills Program regarding Arrest and Control. DUMF 10. The City has a Post Perishable Skills Program regarding Tactical Firearms. DUMF 11. The City's police officers receive training on the necessary tactical knowledge and skills to safely and effectively arrest and control a suspect. DUMF 12. The City Police Department's officers receive training on the necessary firearms tactical knowledge. DUMF 13. For example, Sheklanian has received at least 158 hours of training. DUMF 14. This includes 134 hours of POST certified training. Id.
The City Police Department has a Manual which covers Use of Force, Deadly Force Review, Shooting Policy, Leg Restraint Device and Control Devices and Techniques. DUMF 15. The City Police Department Policy does not contain a policy or procedure that permits the use of excessive force by its officers in violation of the Constitution. DUMF 16.
Slama has not retained an expert. DUMF 17. Slama did not take the deposition of the Chief of Police for the City Police Department or anyone regarding the training of either Sheklanian or Chavez. DUMF 18. Slama did not request, through the discovery process, any information regarding the City Police Department's supervision, training or control of its officers. DUMF 19. Slama did not request, through the discovery process, any information regarding the City Police Department's policies and procedures regarding use of excessive force. DUMF 20.
SUMMARY JUDGMENT STANDARD
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); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 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 Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
Slama alleges four violations of the Fourth Amendment: (1) wrongful arrest, i.e. arrest without probable cause; (2) excessive force; (3) Monell liability for failure to train; and (4) Monell liability for custom/policy to permit excessive ...