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 brought suit in this Court under 42 U.S. C. § 1983 and alleged four violations of the Fourth Amendment against the City of Madera ("the City"), Chavez, and Sheklanian. In a prior order, the Court granted Defendants summary judgment on all but the second cause of action, which alleges excessive force. See Court's Docket Doc. No. 56. The Court gave Defendants permission to file a second summary judgment on the second cause of action. In compliance with that order, Defendants now move again for summary judgment. Slama has filed no opposition or response of any kind to Defendants' motion. For the reasons that follow, the Court will grant summary judgment and close this case.
In the early morning hours of December 20, 2005, Slama was arrested for violation of Penal Code section 148(a)(1) -- resisting, delaying or obstructing an officer. See 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. It was 1:30 a.m., and this area is known for drug activity. See DUMF 3. The officers were driving in a marked police cruiser. DUMF 4. The officers exited their vehicle and asked to speak with Slama. DUMF 5. The officers asked Slama if they could search him for weapons. DUMF 6. Slama consented by placing his hands behind his back. Id. Slama appeared nervous. Id. When the officers began to conduct the pat search for weapons, they noticed that Slama was tense and his hands were tightened into fists, his right fist appearing especially tight. See DUMF 7; Chavez Depo. 19:15-20:6; Sheklanian Depo. 30:22-31:5. Chavez testified that as they were next to Slama, Slama was "overly nervous" and "his body was tight." Chavez Depo. at 20:14-15. Chavez repeatedly told Slama to relax and requested that Slama open his hand, but Slama refused. See DUMF 8; Chavez Depo. 19:15-20:6-11. When Slama refused to open his fist, Chavez attempted to sweep Slama's legs. DUMF 9. Chavez lost his grip on Slama as Slama was going down. See id.; Chavez Depo. 21:12-15. Slama brought his fisted right hand towards his mouth. DUMF 10. Slama opened his mouth as if he was putting something in it. See id. Chavez told Slama to "spit it out," but Slama did not do so, and continued to struggle with the officers. See Chavez Depo. at 21:23-22:18; Sheklanian Depo. 31:17-22. Chavez believed that Slama had swallowed something or was trying to destroy something.*fn3 See DUMF 12; Chavez Depo. 22:4-6. In the course of the struggle, Chavez flipped Slama over onto Slama's stomach and put his weight on Slama. See DUMF 13. However, Slama was able to lift Chavez up and off of him by doing a movement like a "push-up."*fn4 See id.; Chavez Depo. 21:23-22:18. After Slama did the "push-up," Chavez did not believe that he could keep Slama down. See Chavez Depo. 22:10-15. Chavez pushed Slama's body away and to the ground, took a step back, reached for his taser, and then deployed the taser. See id. at 22:12-15; DUMF 13. Slama was tased only one time. DUMF 14. After deploying the taser, the officers were able to handcuff Slama, apparently without further incident. See Chavez Depo. 22:15-18.
Criminal charges against Slama for violation of Penal Code section 148(a)(1) were filed in Madera County Superior Court, Case No. MCR024183. DUMF 15. The charges remained pending until they were dismissed on May 2, 2008. DUMF 16. The charges were dismissed after Slama was convicted for other separate pending matters. Id.
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).
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, 210 F.3d at 1103. 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, 210 F.3d at 1103.
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. 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).
Defendants' Argument Defendants argue that Slama's Fourth Amendment rights were not violated. Two forms of force were used against Slama, a leg sweep and a taser. The situation confronting the officers changed when Slama turned around and placed his hands behind his back. Slama was nervous, tense, had clinched fists, and refused orders to open his hands. The officers did not know if Slama had a weapon in his hands. Later, Slama raised his arm to his mouth, and the officers believed that Slama was attempting to hide or discard contraband. Slama refused to spit out what was in his mouth, struggled with the officers, and was able to lift Chavez off of the ground. Chavez was unable to keep Slama on the ground, so the taser was deployed. Slama posed an immediate threat to the officers, had been struggling with them, and refused to follow lawful commands. The force was not excessive and was justified under the circumstances. Alternatively, the officers reasonably believed that the force used was reasonable.
Qualified Immunity A court employs a tiered analysis for determining qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200-02 (2001); Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006); Brittain, 451 F.3d at 987. However, lower courts need not strictly follow the tiered sequence in analyzing qualified immunity, but instead may dispose of the issue at step two without addressing step one. Pearson v. Callahan, 129 S.Ct. 808, 821 (2009); Moss v. United States Secret Service, 572 F.3d 962, 968 n.5 (9th Cir. 2009). Under the first step, the court determines whether, "taken in the light most favorable to the party asserting the injury, do the facts show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201; Phillips, 477 F.3d at 1079; Skoog, 469 F.3d at 1229. If the answer is "no," then the inquiry ends and the plaintiff cannot prevail; if the answer is "yes," the court continues the analysis. See Saucier, 533 U.S. at 201; Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007); Johnson v. County of L.A., 340 F.3d 787, 793-94 (9th Cir. 2003). Under the second step, the court determines "whether the right was clearly established," and applies an "objective but fact-specific inquiry." Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see Saucier, 533 U.S. at 202; Brittain, 451 F.3d at 988. The critical question is whether "the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates the right." Saucier, 533 U.S. at 202; Phillips, 477 F.3d at 1079. Whether a right is clearly established must be "undertaken in light of the specific context of the case, not ...