The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 45)
Plaintiff Leonard Marella ("Plaintiff") proceeds with a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants the City of Bakersfield, the Bakersfield Police Department, William Rector, Anthony Hernandez, Dennis Park, Eric South, Paul Yoon, and Stephen Kauffman ("Defendants").
On April 14, 2010, Defendants filed a motion for summary judgment. (Doc. 45). Defendants filed a supplemental memorandum on April 16, 2010. (Doc. 46).
Plaintiff filed opposition to Defendants' motion for summary judgment on May 5, 2010. (Doc. 51). Defendants filed a reply to Plaintiff's opposition on May 12, 2010. (Doc. 52). Defendants also filed evidentiary objections to Plaintiff's opposition on May 12, 2010. (Doc. 53).*fn1
Defendants filed a motion to strike three of the declarations submitted in support of Plaintiff's opposition to their motion for summary judgment on May 12, 2010. (Doc. 54). Plaintiff did not file opposition to Defendants' motion to strike.
Plaintiff filed a supplement to his opposition to the motion for summary judgment on May 25, 2010. (Doc. 55).
On March 11, 2008, Bakersfield Police Officers Anthony Hernandez, Dennis Park, Paul Yoon, Stephen Kauffman, and Eric South were present on the 100 block of El Tejon Avenue in Bakersfield, California attempting to locate a robbery and attempted murder suspect. (SUMF 2). The suspect the officers were seeking was described as a Hispanic male, mid-twenties, with a thin mustache and goatee, and was suspected of having stolen a gun safe that contained several firearms. (SUMF 3, 4).
Hernandez, Yoon, Kauffman, and Park parked their patrol cars and began to walk to the corner of El Tejon Avenue and California Street, while South and his K9 unit entered the south alley of El Tejon Avenue. (SUMF 5). Upon walking around the corner of El Tejon Avenue and California Street, Hernandez, Yoon, Kauffman, and Park encountered Plaintiff. (SUMF 6). Plaintiff immediately began running away from the officers. (SUMF 8). Hernandez ordered Plaintiff to stop, but Plaintiff continued running. (SUMF 10). Hernandez, Kauffman, and Yoon chased Plaintiff, while Park ran back to his patrol vehicle. (SUMF 11).*fn2 South saw Plaintiff as he ran towards the alley. (SUMF 12).*fn3
In an effort to evade the pursuing officers, Plaintiff jumped over a fence and ran into a residence. (SUMF 17). The occupants of the residence Plaintiff ran into refused to accept a monetary bribe or to permit Plaintiff to hide from police in their house, so Plaintiff exited the residence. (SUMF 18). The parties dispute Plaintiff's conduct upon exiting the residence.
Defendants contend that Plaintiff began running immediately upon exiting the residence. (SUMF 18). According to Defendants, Hernandez caught up with Plaintiff and attempted to grab him by the shoulder. (SUMF 20). Plaintiff threw his arm back in an elbowing motion, striking Hernandez in the chest and causing him to lose his grip on Plaintiff. (SUMF 20). Plaintiff continued to run. (SUMF 21). Hernandez ordered Plaintiff to get on the ground, but Plaintiff refused. (SUMF 23). Hernandez deployed his taser one time in order to stop Plaintiff. (SUMF 24).
Defendants allege that South could see Plaintiff holding something in his hand as he fell to the ground after being tased, and that Plaintiff put both of his hands underneath his body to conceal whatever he was holding. (SUMF 25, 26). According to South, he ordered Plaintiff to show the officers his hands and stated that if Plaintiff did not comply, he would release his K9. (SUMF 28). Kauffman struck Plaintiff one time on his lower body and ordered Plaintiff to show his hands. (SUMF 30). South again ordered Plaintiff to show his hands and again threatened to release his K9. (SUMF 31). Plaintiff attempted to pull his knees towards his chest, at which point South ordered the K9 to engage him. (SUMF 34). The K9 engaged Plaintiff's right leg. (SUMF 35). Plaintiff kicked the K9 with his left leg, prompting the K9 to release Plaintiff's right leg and engage his left leg. (SUMF 36).
Ultimately, Plaintiff complied with South's command to show his hands, placing them in front of his body and rolling to his right side. (SUMF 38). The officers were then able to get control of Plaintiff's arms, and the K9 released his hold. (SUMF 39, 40). After Plaintiff was taken into custody, the officers picked up two clear plastic bundles containing a substance later identified as methamphetamine. (SUMF 41).
Plaintiff states that as he exited the residence, officers instructed him to raise his hands, and he complied. (Marella Dec. at 25-26). Plaintiff contends he did not run upon exiting the residence. (Marella Dec. at 26). As Plaintiff was standing on the porch with his hands raised, he was tased on the left side of his face and fell unconscious. (Id.). Plaintiff recalls that as he lay in the hospital bed, there was taser dart under his left arm. (Id. at 33).
Summary judgment/adjudication is appropriate when "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 movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) (internal quotation marks omitted).
Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
A. Plaintiff's Claims Against Municipal Defendants
Local governments are "persons" subject to suit for "constitutional tort[s]" under 42 U.S.C. § 1983. Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55). " Although a local government can be held liable for its official policies or customs, it will not be ...