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Su v. County of Sacramento

August 12, 2010

PHU SU, PLAINTIFF,
v.
COUNTY OF SACRAMENTO; DEPUTY SHERIFF JAMES PETRONIVICH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY (BADGE # 856); AND SHERIFF JOHN MCGINNESS, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Phu Su filed this civil rights action under 42 U.S.C. § 1983 after he was allegedly subjected to excessive force by defendant Sacramento County Deputy Sheriff James Petronivich during a traffic stop. Presently before the court is plaintiff's motion for partial summary judgment as to Deputy Petronivich's liability pursuant to Federal Rule of Civil Procedure 56.

I. Factual and Procedural Background

On November 28, 2008, defendant Deputy Petronivich and Deputy Michelle Ball were on regular patrol driving northbound on Sampson Avenue in Sacramento when they observed a vehicle traveling in the opposite direction without a front license plate in violation of California Vehicle Code section 5200. (Butts Decl. Ex. 2 ("Petrinovich Depo.") at 20:2-17.) Petrinovich was driving the patrol vehicle and Ball was riding in the front passenger seat. (Id. at 20:2-6.) Petrinovich made a u-turn and positioned himself behind the vehicle, a black 2006 Chrysler 300 being driven by plaintiff. (Id. at 20:2-17.) The officers ran a search on the car's rear plate, finding that it was registered to a 300 Chrysler, but could not confirm that the plates were properly attached to the vehicle in front of them. (Id. at 33:19-34:9)

As Petrinovich caught up to plaintiff's vehicle, he observed it make a right hand turn onto the westbound left lane on 47th Avenue without coming to a complete stop behind the limit line of the intersection's stop sign in violation of California Vehicle Code section 22450. (Id. at 20:2-17.) Petrinovich followed plaintiff's car onto 47th Avenue and activated the patrol car's red light and siren to signal plaintiff to pull to the side of the road. (Id. at 22:2-6.) Plaintiff became aware that the patrol car wanted him to stop while he was making the right turn on 47th Avenue. (Butts Decl. Ex. 10 ("Su Depo.") at 38:1-3.)

Plaintiff moved from the left lane to the right lane, but continued to drive at approximately thirty-five miles per hour down 47th Avenue. (Petrinovich Depo. at 22:2-12.) Plaintiff continued driving down 47th Avenue without braking, signaling his intention to turn, or slowing down. (Id. at 23:2-8.) Petrinovich believed that the vehicle could have stopped safely on the right hand side of the road, but that plaintiff failed to either pull over or turn down one of the first four side streets he passed. (Id. at 22:9-12, 23:2-8; Su Depo. at 42:5-9.)

After traveling approximately two-tenths (.2) of a mile at thirty-five miles per hour for forty-three seconds, plaintiff slowed down and turned right onto 45th Street. (Petrinovich Depo. at 25:10-23.) Plaintiff then pulled his car to the right hand side of the street but continued to idle forward in the gutter at approximately ten miles per hour. (Id. at 28:25-29:3.) Petrinovich followed, stopped his patrol car behind plaintiff's vehicle, and yelled to plaintiff to stop the car. (Id. at 29:14-17.) Deputy Ball exited the patrol car and immediately approached plaintiff's vehicle on the passenger side with her gun drawn while Petrinovich stood next to the patrol car with his weapon drawn. (Id. at 30:10-20.) At the time, Petrinovich states that he was conducting the stop as a pursuit due to the extended amount of time plaintiff took to stop the car. (Id. at 37:16-18.)

Once the car came to a complete stop, Petrinovich ordered plaintiff to turn off his car and place his hands out the window; plaintiff complied. (Id. at 29:18-23, 30:16-17; 42:18- 20.) Ball stood next to the passenger side of plaintiff's vehicle with her gun pointing at the vehicle's passengers. (Id. at 30:18-20.) Once plaintiff's hands were outside his vehicle, Petrinovich approached the vehicle with his gun drawn and looked into the vehicle. (Id. at 42:22-24.) While approaching plaintiff's vehicle, Petrinovich detected the smell of marijuana. (Id. at 44:6-10.) Upon arriving at the vehicle, Petrinovich holstered his gun and opened the driver's side front door. (Id. at 43:1-2.) Petrinovich then grabbed plaintiff's wrists, one in each hand, while he was still sitting in the driver's seat and ordered plaintiff out of the vehicle. (Id. at 43:1-3; Butts Decl. Ex. 1, ("In-Car Camera DVD") at 11/28/2008 21:51:13.) Petrinovich contends that he held plaintiff's wrists so that he could control plaintiff's hands in the event plaintiff attempted to harm Petrinovich or go for a weapon. (Petrinovich Depo. at 49:9-14, 50:22-25.) Petrinovich intended to detain plaintiff and place him in handcuffs. (Id. at 47:4-10.)

While plaintiff was exiting the vehicle, Petrinovich allegedly told him to face the vehicle and attempted to guide his wrists so that plaintiff was facing the vehicle. (Id. at 43:3-6.) Petrinovich alleges that plaintiff refused to comply and argued with Petrinovich over why he was pulled over and why he had to face the vehicle. (Id. at 49:6-9.) Plaintiff claims he did not make any such statements. (Su Depo. at 48:14-16.) Petrinovich also alleges that plaintiff was attempting to pull his right arm free from Petrinovich's grasp. (Petrinovich Depo. at 49:6-9.)

Petrinovich released his hold on plaintiff's left wrist and grabbed plaintiff's right hand with his right hand, twisted it down to put it behind plaintiff's back, and moved plaintiff's body to face the vehicle. (Id. at 44:18-21, 45:1-4, 52:3-5; InCar Camera DVD at 11/28/2008 21:51:18.) Petrinovich kept plaintiff's right hand in a rear wrist lock and attempted to put plaintiff's left hand on the back of his head. (Petrinovich Depo. at 45:1-4, 53:1-5.) During this time, plaintiff's left hand remained free near his waistband. (Id. at 53:1-4.) Plaintiff's right elbow was then lifted upward behind his back, after which, in what appears to be one continuous motion, Petrinovich turned plaintiff away from the car and took him to the ground. (Id. at 53:1-5, 53:7-14, 54:6-10, 54:13-20; In-Car Camera DVD at 11/28/2008 21:51:26.) Once plaintiff was taken to the ground, Ball moved from the passenger's side of the car to the driver's side, keeping her gun drawn and pointed at the two passengers in the vehicle. (In-Car Camera DVD at 11/28/2008 21:51:31.)

Once on the ground, plaintiff was face-down with both his hands underneath him, allegedly near his waistband. (Petronivich Depo. at 55:21-25, 56:4-5.) Petrinovich placed his knee on plaintiff's back after plaintiff allegedly tried to push up off the ground. (Id. at 55:21-25, 56:4-6, 57:3-16, 58:8-9, 58:12-17.) Petrinovich states that he instructed plaintiff to put his hands behind his back and that plaintiff did not comply. (Id.) While they were on the ground, an unknown male individual with a dog approached. (Id. at 59:15-19.) Petrinovich was unsure of the man's intentions as he moved toward Petrinovich and plaintiff. (Id. at 59:15-60:9.) Petrinovich then struck plaintiff approximately nine times in his upper back and rear portion of his head while allegedly instructing plaintiff to comply. (Id. at 55:21-25, 56:4-6, 57:3-16, 58:8-9, 58:12-17.) Plaintiff eventually put his hands behind his back, at which point Petrinovich handcuffed him and took him to the patrol car. (Id. at 58:22-24, 59:10-12.) Plaintiff denies that he failed to comply with any orders from Petrinovich or or that he resisted or attempted to resist Petrovich at any time. (Su Depo. at 52:18-53:2.)

Additional officers then arrived on scene and conducted a search of plaintiff's car. (Butts Decl. Ex. 3 ("Petrinovich Decl.") ¶¶ 102, 105.) The search of the vehicle uncovered a plastic bag in the glove box containing 3.7 grams of marijuana and that one of the passengers was carrying hashish. (Id. ¶¶ 106, 108.) Plaintiff and the passenger were arrested and taken to Sacramento County Main Jail. (Id. ¶ 109.) Plaintiff was charged with failure to comply with the lawful order of a police officer, Cal. Vehicle Code § 2800(a), driving while in the possession of marijuana, Cal. Vehicle Code § 23222(b), and resisting a police officer, Cal. Penal Code § 148(a)(1).

Plaintiff initiated this § 1983 civil rights action against the County of Sacramento, Petrinovich, and Sacramento County Sheriff John McGinness on July 2, 2009. Plaintiff now moves for partial summary judgment as to Petrinovich's liability under § 1983 based on the video of the incident recorded by the in-car camera in Petrinovich's patrol car.

II. Discussion

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the ...


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