The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING DEFENDANT OMAR BERSAMINA AND THE UNITED STATES OF AMERICA'S MOTIONS FOR SUMMARY JUDGMENT
Defendant Omar Bersamina ("Bersamina"), a federal Drug Enforcement Administration ("DEA") agent, moves for summary judgment on Plaintiff's Fourth Amendment excessive force claim, contending he did not seize Plaintiff and therefore was never in a position to use force on Plaintiff. Defendant United States of America also moves for summary judgment on Plaintiff's negligence claim. Plaintiff clarified at the hearing on the motions that his negligence claim against the United States is based solely on Plaintiff's excessive force Fourth Amendment claim alleged against Bersamina. Bersamina is the only remaining federal defendant in this action.
Plaintiff alleges that during the execution of a federal search warrant at 3438 Lone Ridge in Antelope California," ("3438 Lone Ridge"), a law enforcement officer subjected him to excessive force, in violation of his Fourth Amendment right. (First Amended Complaint ("FAC") ¶ 3). Plaintiff alleges that while he was being detained, and after he was handcuffed, that the officer violently threw him to the ground, "causing [him to suffer] serious injuries, including a broken leg," which required surgery. (Id. ¶¶ 22-24.) "Plaintiff was not arrested or charged with any crime." (Id. ¶ 24.)
When deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party, and "[a]ll reasonable inferences must be drawn in the nonmoving party's favor... " Triton Energy Corp. v. Square D Co.,68 F.3d 1216, 1220(9th Cir. 1995).
On June 29, 2006," at approximately 9:45 p.m., various agents from the DEA, FBI, and the California Bureau of Narcotic Enforcement/Placer County Special Investigations Unit ("SUI") "executed a [federal] search warrant at 3438 Lone Ridge" in connection with a previous arrest for the sale of nine pounds of methamphetamine. (Statement of Undisputed Facts ("SUF") ¶¶ 1-3.) Plaintiff was visiting Pablo Vital Garnica ("Garnica") for his birthday on the premises of 3438 Lone Ridge when the search warrant was executed. (Id. ¶¶ 3-4, 14.)
Plaintiff sat down next to Garnica and began drinking a beer. (Id. ¶ 5.) Plaintiff was seated "on the far left side of the driveway with Garnica to his right." (Id. ¶ 15.) "The garage is part of the house and sits in front of the house facing the driveway and the street." (Id. ¶ 38.) Garnica declares he and Plaintiff were "just outside the entrance of the garage;" Garnica "was seated to the Plaintiff's right and with his back facing the street." (Id. ¶¶ 7-8, Bersamina Ex. E, Garnica Decl. ¶ 5.) Another individual who "Plaintiff did not know was sitting 'at a distance' from Plaintiff." (Id. ¶ 6; Bersamina Ex. D, First Arroyo Depo. 21:15-22:25). That individual was later identified as Francisco Alejandro Romero ("Romero"). (Id. ¶ 9.)
Plaintiff testified he "visit[ed] with Mr. Garnica" for "two minutes" before a van arrived, out of which came "five" police officers. (Id. ¶ 10; Bersamina's Ex. D, First Arroyo Depo. at 24:3-5, 26:7-18). Plaintiff later testified that "about twenty minutes" after his arrival at 3438 Lone Ridge "six to seven police officers got out of the van." (Id. ¶ 16; Pl's Arroyo Fed. Dep. DT 88:19-89:7; Bersamina Ex. F, Second Arroyo Dep. at 46:11-16.) Plaintiff testified that "after four seconds of the [officers'] arrival, one of the officers detained him." (Id. ¶ 11; Bersamina's Ex. D, First Arroyo Depo. at 30:16.) Plaintiff testified that it was a male officer who "got out of the van" and approached him. (Id. ¶ 17; Bersamina, Ex. F, Second Arroyo Depo. 46:17-22; 47:5-7; 48:2-5; 90:24-91:2). Bersamina testified that he "did not ride with some of the other agents in the SUI raid van to the search at 3438 Lone Ridge... on June 29, 2006." (Id. ¶ 27.) "Multiple vehicles, including a raid van, arrived contemporaneously to serve the warrant." (Plaintiff's Statement of Disputed Facts ("PSDF") ¶ 11.)
Plaintiff testified "that the officer went behind him, cuffed his hands, picked him up to a standing position by grabbing his shirt collar and his cuffed hands." (SUF ¶ 18.) Plaintiff testified after he "was handcuffed," he was "lifted from his chair by his shirt collar and his hands to standing position, and then pushed in the middle of his back to the concrete." (Id. ¶ 12.) The officer "pushed [Plaintiff's] back[,]" causing Plaintiff to fall "forward" to the ground and to sustain injuries. (Id. ¶¶ 19, 20; Second Arroyo Depo. 49:13-19.)
Plaintiff gave deposition testimony that a single individual male officer threw him to the ground, that he "[could] not identify" the person or his skin, height, hair, facial hair, that the person "had a vest on" with ["b]ig letters" and "was kind of shorter than" "and stronger than" Plaintiff. (Id. ¶ 13; Bersamina, Ex. D, First Arroyo Depo. at 30:17-31:25; 32:21-33:5; 41:24-42:14.) In a later deposition, Plaintiff could not identify anything about the person who detained him, except that when Plaintiff "was put to the ground," Plaintiff saw the individual was wearing a vest. (Id. ¶ 22; Bersamina, Ex. F, Second Arroyo Depo., 54:16-57:1; 57:12-59:1). "The officers serving the warrant all arrived wearing raid gear including vests and helmets." (PSDF ¶ 12.)
Plaintiff estimated in his later deposition that the person who threw him weighed "180 pounds more or less." (Pl's Response to SUF ¶ 13; Pl's Arroyo Fed. Depo. 52:23-54:16; SUF ¶ 22.) Bersamina testified that at the time of the June 29, 2006, incident he was probably 5 foot, 5 inches tall and weighed 180 pounds. (Pl's Response to SUF ¶ 13; Pl's Bersamina Depo. 40:1-4.) "Bersamina is skilled in multiple martial arts disciplines including Jiu-Jitsu, Korean karate, Wing Chun Kung Fu, Jing Quan DO and Shoot wrestling." (PSDF ¶ 18.) "Bersamina's martial arts skills have facilitated his taking taller subjects to the ground." (Id. ¶ 19.) Bersamina "is of a similar height, weight, and strength as the person who threw [P]laintiff to the ground causing his injuries." (Id. ¶ 24.)
Bersamina counters Plaintiff's evidence with Plaintiff's deposition testimony in which Plaintiff admits that after Plaintiff "personally attended the deposition of the SIU members," Jeff Cameron ("Cameron") and Ken Addison ("Addison"), he still could not "say one way or another whether or not it was any of those officers who put [him] on the ground." (SUF ¶ 23; Bersamina, Ex. F, Second Arroyo Depo. 59:6-60:10.) Further, when Plaintiff was given photographs of SIU team members... Addison, David Brose ("Brose"), Brandon Olivera ("Olivera"), Ben Machado ("Machado"), and Scott Bryan ("Bryan") taken right after execution of the federal search warrant on June 29, 2006, [Plaintiff] could not positively identify any of those shown in the photographs as the alleged wrongdoer. (Id. ¶ 24.)
Plaintiff replies in his declaration dated March 5, 2010, that after having seen Cameron and Addison for the first time at their depositions on April 20, 2009, and after having seen Bersamina for the first time at his deposition on February 4, 2010, Plaintiff "believe[s]" these individuals "may have been the" one "who threw [him] down and caused [his] injury[,] but [he is] ...