The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE
The only remaining Defendant, Mike Stanton, moves for summary judgment on all claims asserted against him in Plaintiff Drendolyn Sims' First Amended Civil Rights Complaint ("FAC"). Plaintiff Drendolyn Sims opposes the motion. For the reasons set forth below, the court grants the motion for summary judgment in favor of Defendant and against Plaintiff on all claims and dismisses the state law claims without prejudice for lack of supplemental jurisdiction. The Clerk of Court is instructed to close the file.
On June 24, 2009, Plaintiff commenced this federal question action alleging that Defendant Officer John Doe and the City of La Mesa violated her federal civil rights when Officer Doe effectuated an unconstitutional arrest, an unconstitutional search, and used excessive force. Plaintiff also alleges state law claims for negligence, negligent infliction of emotional distress, and battery.
On August 28, 2009 the court granted Defendant City of La Mesa's motion to dismiss with leave to amend, finding that Plaintiff failed to state a Monell claim. (Ct. Dkt. No. 8). On September 17, 2009 Plaintiff filed the FAC, naming Defendant Officer Mike Stanton as the only defendant. The FAC In broad brush, the FAC alleges that on the evening of May 26, 2008, Plaintiff was at her home when she heard commotion coming from the unit next door and she went outside to ask the individuals to quiet down. (FAC ¶¶5,6). She then returned to the gateway area at the front of her apartment. The front yard has a six foot tall wooden yard gate. She was speaking with her guest, Nicholas Patrick, outside the front gate when a City of La Mesa patrol vehicle drove into the area. Officer Massey drove the vehicle and Defendant Officer Stanton was a passenger in the vehicle. (Id. ¶10). Plaintiff and Mr. Patrick then entered the yard through the gate and closed it. Plaintiff was standing directly behind the gate. She alleges that "Defendant observed the Plaintiff walk through the front-yard gate onto the premises of Unit #A-4." (Id. ¶15). Within "moments" of entering through the front gate, and without any warning, Defendant Stanton allegedly kicked open the gate, seriously injuring Plaintiff. (Id ¶¶17, 22).
Based upon the above generally described conduct, Plaintiff alleges violations of 42 U.S.C. §1983 for unconstitutional search and excessive force. Notably, Plaintiff requests dismissal of the unconstitutional seizure claim for lack of evidence. (Oppo. at p.1 n.1). Defendant moves for summary judgment on all remaining claims.
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, when "'the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.'" Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).
The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity protects " 'all but the plainly incompetent or those who knowingly violate the law.' " Saucier v. Katz, 533 U.S. 194, 202,(2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A defendant may have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Id. "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not 'clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991).
The defense of qualified immunity balances "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Determining whether an official is entitled to qualified immunity requires a two-part analysis. Saucier, 533 U.S. at 201; Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir.2009). First, a court must decide whether the factual record, viewing the record in the light most favorable to Plaintiff, establishes that Defendant Stanton violated a constitutional right. Id. Second, the court must decide whether the statutory or constitutional right at issue was "clearly established." Id. A right is "clearly established" for the purpose of qualified immunity if " 'it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted' ... or whether the state of the law [at the time of the alleged violation] gave 'fair warning' to [him] that [his] conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.2002) (quoting Saucier, 533 U.S. at 202). Because qualified immunity is an affirmative defense, the initial burden of proof lies with the official asserting the defense. Harlow, 457 U.S. at 812; Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992). Finally, while often beneficial to approach the two-part inquiry in the sequence prescribed above, it is not mandatory. Pearson, 129 S.Ct. at 818. A court has "discretion in deciding which of the two prongs of the qualified immunity analysis should ...