The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
AMENDED SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 12/10/10 Non-Dispositive Motion Filing Deadline: 12/27/10 and Hearing Date: 2/4/10 9:00 Non-Dispositive Motion Bakersfield Dispositive Motion Filing Deadline: 1/10/11 Dispositive Motion Hearing 3Date: 2/14/11 10:00 Ctrm. Settlement Conference Date: 2/16/11 10:00 Bakersfield 3/7/11 11:00 Ctrm. 3 Pre-Trial Conference Date: Trial Date: 4/26/11 9:00 Ctrm. 3 (JT-5 days)
I. Date of Scheduling Conference
III. Summary of Pleadings
1. On August 8, 2009, Plaintiff, a 68 year old man with osteo arthritis in most all of his joints and gouty arthritis in his feet, along with a degenerative disc disease in his neck, asthma and numerous other medical conditions, alleges he went to Central Park to feed the geese and spend a nice day in the fresh air. Plaintiff alleges he walked around the park and then sat in his car to rest and relax at the park. Unbeknownst to Plaintiff, an individual called the police regarding a suspicious person.
2. Defendant Knowlton received a call from dispatch advising him of a suspicious person closely watching the girls swimming in the pool. The caller alleged that Plaintiff was staring at the girls over a chain linked fence that surrounded the pool. Upon arriving at the location, Defendant Knowlton noticed an employee at the Central Park swimming school pointing to a white Toyota pick up truck with the license plate 8T008977 parked in the parking area near the pool area.
3. Defendant Knowlton approached the vehicle and alleges he saw Plaintiff sitting in the driving seat moving his head in fast motion looking toward subjects in numerous areas of the park. Defendant Knowlton contacted the Plaintiff by knocking on the driver side window and motioning for him to roll it down.
4. Defendant Knowlton alleges that the Plaintiff became very agitated and pointed his finger very close to his face, whereupon Knowlton took a step back to a position slightly behind the driver side door and advised the Plaintiff to be aware of where he waves his hand. Knowlton further alleges that Plaintiff got extremely upset and swung his closed fist in a backwards motion while leaning his body in Knowlton's direction. Knowlton claims to have grabbed Plaintiff's left wrist and attempted a control hold, but Plaintiff was able to pull his arm back into the car and roll up the window.
5. Knowlton attempted to open the driver's side door 2-3 times to remove Plaintiff from the vehicle. Plaintiff locked the door and began to reverse his vehicle. At this point in time, Defendant Hurtado arrived and prevented the Plaintiff from leaving by blocking his exit with his patrol car.
6. Defendants allege that Plaintiff exited his vehicle, where he was told to turn around and place his hands on the back of his head. Upon exiting the vehicle, Plaintiff allegedly yelled at the officers as they were giving him instructions to comply. Knowlton told the Plaintiff that if he did not comply with their instructions he was going to be tased.
7. Defendant Hurtado attempted to place a control hold on Plaintiff in order to place handcuffs on him, whereupon it is alleged that the Plaintiff began to struggle with Hurtado and somehow was able to pull his arm away from Hurtado. Plaintiff fell against the back rear bed of the truck, whereupon Knowlton fired his taser into the left stomach and leg region of the Plaintiff. The application of the taser caused the Plaintiff to fall to the ground and suffer a scrape to his left elbow, whereupon he was handcuffed and placed under arrest.
8. Plaintiff was taken into custody, checked by paramedics at the scene, then taken to Tehachapi Hospital to be cleared for booking. Plaintiff was then taken to Kern County Sheriff's Department Central receiving area and booked.
A. Plaintiff's Factual & Legal Contentions
9. On August 8, 2009, prior to being shot multiple times with a taser, John Bernat had not committed any crime and was within his Constitutional rights to ask Officers Knowlton and Hurtado what was going on. The Officers had no legal justification to use physical force against the Plaintiff while simply trying to ask him questions. Plaintiff had simply asked to know what was going on and was told that force was going to be used against him if he did not place his hands behind his back. At no time did Plaintiff threaten or confront Officers Knowlton or Hurtado in order to justify the use of force let alone the use of a taser against him. Officer Knowlton claims that he was justified in using the taser because Plaintiff would not place his arms behind his back after being asked to do so even though he had committed no crime.
10. Plaintiff seeks compensatory damages for the unjustified, wrongful and malicious acts of the Defendants that caused him to suffer fright, extreme and severe mental anguish and extreme physical pain. Plaintiff relies on the objective reasonableness standard enunciated in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Plaintiff further claims that Officers Knowlton and Hurtado acted intentionally and recklessly in that shooting the Plaintiff with a taser multiple times was willful, malicious, oppressive and in conscious disregard of Plaintiff's constitutional rights, thereby justifying the imposition of punitive or exemplary damages against Officers Knowlton and Hurtado.
11. Pursuant to the provisions of Farmer v. Brennan, 511 U.S. 825, 835 (1994) and Wilson v. Seiter, 501 U.S. 294 (1991), Plaintiff must establish that the Defendants acted recklessly, knowingly, or with unnecessary and wanton behavior. Defendants maintain that they at all times complied with the standard of care. Monroe v. Regents of the University of California, 215 Cal.App.3d 977, 983-84 (1989). Defendants maintain that Plaintiff will be unable to establish a mere negligence case against them pursuant to Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal.4th 992, 999 (1994), and will be unable to establish Monell responsibility against the City of California and Officers Standish Knowlton and Eric Hurtado. Monell, supra, 436 U.S. at 694.
12. Plaintiff demanded a jury trial in his complaint dated February 19, 2010, and Defendants demanded a jury trial in their answer dated April 8, 2010.
B. Defendants' Factual and Legal Contentions
13. Defendants contend their use of force was reasonable under the Fourth Amendment. When Plaintiff attempted to evade and assault officers, and resisted arrest, Defendant Knowlton reasonably used force by grabbing Plaintiff's wrist and then using the taser to control him. Graham, 490 U.S. 386. Defendants are also entitled to qualified immunity, as they reasonably believed their actions in restraining Plaintiff were lawful in light of his aggressive actions. Saucier v. Katz, 533 U.S. 194, 201 (2001).
14. Similarly, Defendants did not commit an assault or battery on Plaintiff, as their use of force was reasonable to take Plaintiff into custody when he assaulted officers and resisted arrest. Defendants were not negligent when they initially acted to question Plaintiff and then take him into custody, but were responding reasonably to Plaintiff's yelling and his evasive, assaultive, and resistive actions. Nor did Defendants threaten or intimidate Plaintiff in violation of Civil Code 52.1, as their commands were lawful and appropriate.
15. Defendant, City of California, is not liable under a Monell theory because the individual Defendants did not act inappropriately. Section 193 precludes local government liability absent action pursuant to official municipal policy of some nature that caused a constitutional tort. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978). Only when a City's policy or custom causes the injury, or the City's inadequate training of an officer causes the injury, is the entity liable. Id. at 692, 694; City of Canton v. Harris, 489 U.S. 378, 387 (1989). Defendant City of California properly hired, retained, supervised, trained, and disciplined its officers, including the individual Defendants in this case.
IV. Orders Re Amendments To Pleadings
1. The parties do not anticipate amending the pleadings at this time.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings
1. Plaintiff, John Bernat, is an individual citizen of the United States.
2. Defendant City of California City is a public entity within the meaning of California law.
3. The California City Police Department is sued although it does not appear to be a legal entity with capacity to be ...