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Ramon Obas v. County of Monterey; Conan Hickey; Bryan Hoskins

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


February 22, 2011

RAMON OBAS, PLAINTIFF,
v.
COUNTY OF MONTEREY; CONAN HICKEY; BRYAN HOSKINS;
AND DOES 1-50, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

immediately arrested by members of the Monterey County Joint Gang Task Force. Although Plaintiff repeatedly complained of pain in his legs, Emergency Medical Technicians (EMTs) called 21 to the scene observed no visible signs of injury. Rather than immobilizing Plaintiff on a backboard 22 and transporting him by ambulance to the hospital, Monterey County Sheriff's Office Deputies Conan Hickey and Bryan Hoskins lifted Plaintiff to his feet and required him to walk, with some 24 assistance, to a patrol car. Subsequent medical examination revealed a displaced fracture of Plaintiff's right tibial plateau. Plaintiff claims that the actions of Deputies Hickey and Hoskins 26 caused or exacerbated his injuries, and he therefore brings this action against the County of

On October 23, 2008, Plaintiff Ramon Obas jumped from a second story balcony and was Monterey and Defendants Hickey and Hoskins for excessive use of force, battery, and negligence.

The case is now before the Court on Defendants' motion for summary judgment, which Plaintiff 2 has opposed. The Court heard oral argument on January 27, 2011. Based on the submissions and 3 arguments of the parties, the Court grants in part and denies in part Defendants' motion for 4 summary judgment.

I.Background

8 contours of the incident giving rise to this action are undisputed. In the months leading up to Obas on several occasions without success. On October 23, 2008, members of the Task Force organized a tactical operation to apprehend Plaintiff at a two-story apartment complex located at 10525 Seymour Street, in Castroville, California, where Plaintiff was expected to appear. That 13 night, two Task Force members, Defendant Hickey and California Department of Corrections and Rehabilitation ("CDCR") Special Agent John Jefferson, were waiting in an unmarked car in the 15 parking lot of the complex when they observed Plaintiff ascending the stairs to the second floor of 16 the complex. Hickey and Jefferson notified the other Task Force members by radio and then got 17 out of the car and approached the stairs. When Plaintiff noticed the two men approaching him, he 18 jumped from the second-floor balcony onto the pavement below, a distance of some ten to thirteen 19 feet. Hickey and Jefferson arrested Plaintiff approximately where he landed and handcuffed him 20 with his hands behind his back

Ruskell arrived at the scene. Vindhurst and Ruskell exposed both of Plaintiff's legs, conducted a 24 basic physical examination, and found no objective, visible signs of injury. Although an 25 ambulance had been summoned, it was called off. Defendants Hickey and Hoskins then lifted Plaintiff to his feet and assisted him, supporting some amount of his weight, as he walked to a 27 waiting patrol car. As Plaintiff and Defendants walked to the patrol car, Plaintiff continued to 28

A.Undisputed Facts

While the parties strongly contest certain details of Plaintiff's arrest and transport, the basic October 2008, the Monterey County Gang Task Force had attempted to apprehend Plaintiff Ramon Plaintiff complained of pain in his legs, and a call was placed for medical assistance.

Shortly thereafter, firefighters and trained EMTs Ken Ash, Michael Vindhurst, and Jonathan complain of pain in his legs, though he did not scream or yell in pain. None of the EMT-2 firefighters intervened or suggested the Plaintiff should be reexamined, and at no point after he 3 jumped from the second-floor balcony did Plaintiff resist, act belligerently, or attempt to get away 4 from the officers.

Plaintiff, intending to take him to the county jail for booking. During the drive, however, Plaintiff 8 continued to complain that his legs hurt, and West and Muscutt decided instead to take him to 9

After Defendants Hoskins and Hickey placed Plaintiff in the patrol car, Monterey County Sherriff's Office Deputy Charles West and Task Force member Michael Muscutt drove off with Natividad Medical Center for a pre-booking medical examination. At the hospital, medical staff 10 noted a deformity of Plaintiff's right tibia, and x-rays revealed a displaced fracture of Plaintiff's

Plaintiff knew that Defendants Hickey and Jefferson were law enforcement officers when he 15 noticed them approaching the stairs of the apartment complex and whether he fled to avoid being 16 apprehended by the police. Defendants maintain that Hickey and Jefferson identified themselves 17 as officers and that Plaintiff jumped off the balcony in order to evade them. They point out that in 18 his deposition testimony, Plaintiff acknowledged that he was on parole on the night of his arrest 19 and that the conditions of his parole required him to stay away from Ermila Cortez, who lived in 20 the apartment complex. Plaintiff also acknowledged that he had a parole warrant for failing to 21 report to his parole officer. Defendants thus argue that Plaintiff knew that Hickey and Jefferson 22 were law enforcement officers and jumped from the balcony to avoid apprehension. In contrast, Plaintiff claims that he believed Hickey and Jefferson were coming to attack him and that he 24 jumped from the balcony railing because he feared for his life. He contends that Hickey and Jefferson rapidly approached the stairs with guns drawn and did not identify themselves as law 26 enforcement officers. Plaintiff also claims that he did not know whether there was an active 27 domestic violence restraining order prohibiting him from visiting the apartment complex. 28

B.Disputed Facts

The disputed issues of fact center on three main areas. First, the parties dispute whether Second, the parties dispute whether the EMT-firefighters recommended that Plaintiff be transported in an ambulance with cervical spine ("C-spine") restraints to immobilize him and 3 prevent further injury, or "cleared" Plaintiff for transport via patrol car. Plaintiff maintains that at 4 least one of the EMTs recommended to Defendants Hickey and Hoskins that Plaintiff be placed in C-spine precautions and transported in an ambulance, and that Defendants rejected this 6 recommendation and had the ambulance called off. Defendants, on the other hand, claim that the 7

EMT-firefighters never recommended that Plaintiff be placed in C-spine precautions, that they 8 cleared Plaintiff to be transported by law enforcement personnel, and that Fire Captain Ash called 9 off the ambulance of his own volition. Defendants contend that, at most, one of the EMT-10 firefighters may have offered, to an unidentified officer, to place Plaintiff in C-spine precautions, such precautions should be taken.

without actually recommending that

Third, the parties dispute facts surrounding Plaintiff's walk to the patrol car, including the 13 distance he was required to walk, how much of his weight Defendants supported, and how much 14 pain Plaintiff appeared to be experiencing. Plaintiff claims that when the officers placed him on 15 his feet, he made a grunting sound "like sucking air through his teeth" and felt a pop that coincided 16 with a sharp increase in pain. Pl.'s Opp'n 8. He claims that during the walk to the patrol car, he 17 complained loudly that his legs hurt, told the officers that he could not walk, and was visibly 18 limping. Plaintiff, who weighed about 195 to 220 pounds at the time, also claims that Defendants 19 supported only about thirty percent of his weight, and that he was forced to walk approximately 75 20 to 100 feet to the patrol car. In contrast, Defendants claim that Plaintiff did not act like a person 21 who was in excruciating pain and argue that arrestees often complain of pain, whether or not they 22 have been seriously injured. They claim that the officers supported a substantial portion of

Plaintiff's weight and estimate that Plaintiff was assisted in walking between 25 and 50 feet to the 24 patrol car.

II.Legal Standard

Summary judgment should be granted if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). Material facts are those which may affect the outcome of the case, and a 2 dispute as to a material fact is "genuine" only if there is sufficient evidence for a reasonable trier of 3 fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 4

(1986). On a motion for summary judgment, the Court draws all reasonable inferences that may be 5 taken from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]he district court does 7 not assess credibility or weigh the evidence, but simply determines whether there is a genuine 8 factual issue for trial." House v. Bell, 547 U.S. 518, 559-560 (2006).

material fact. Celotex, 477 U.S. at 331. The moving party can satisfy this burden in two ways.

The moving party has the initial burden of production for showing the absence of any "First the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the 13 nonmoving party's evidence is insufficient to establish an essential element of the nonmoving 14 party's claim." Id. Once the moving party has satisfied its initial burden of production, the burden 15 of proof shifts to the non-movant to show that that there is a genuine issue of material fact. A party 16 asserting that a fact is genuinely disputed must support that assertion by either citing to particular 17 parts of materials in the record or by showing that the materials cited by the moving party do not 18 establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c). The non-movant must go beyond 19 its pleadings "and by her own affidavits, or by the depositions, answers to interrogatories, and 20 admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted). 22

III. Discussion

of Plaintiff's Fourth and Fourteenth Amendment rights to be free of unreasonable searches and

A.Section 1983 Claim

Plaintiff's federal cause of action asserts a claim pursuant to 28 U.S.C. § 1983 for violations seizures.*fn1 SAC ¶ 34. Plaintiff's Section 1983 claim is alleged against both Defendant Monterey

County and individual Defendants Hickey and Hoskins.

considered "persons" for purposes of Section 1983 and may be held liable for monetary damages in 6 cases where "the action that is alleged to be unconstitutional implements or executes a policy 7 statement, ordinance, regulation, or decision officially adopted and promulgated by that body's 8 officers." 436 U.S. 658, 690 (1978). A local government may not be sued under a theory of 9 respondeat superior for injuries inflicted solely by its employees or agents. Monell,436 U.S. at 10 demonstrate that the government's official policy or custom was the "moving force" responsible for infliction of her injuries. Monell, 436 U.S. at 694. In his opposition brief and at oral argument,

1. Monell liability of Monterey County

Under Monell v. Department of Social Services of City of New York, local governments are 691; Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006). Rather, a plaintiff must Plaintiff conceded that discovery revealed no policy or custom on the part of Monterey County that 14 led to the alleged constitutional violations. Pl.'s Opp'n to Defs.' Mot. for Summary Judgment 15

("Pl.'s Opp'n") 1, ECF No. 71. Accordingly, the Court GRANTS summary judgment in favor of

Defendant Monterey County on Plaintiff's Section 1983 claim.

judgment on Plaintiff's Section 1983 claim because they are entitled to qualified immunity. The 6 doctrine of qualified immunity protects government officials "from liability for civil damages 7 insofar as their conduct does not violate clearly established statutory or constitutional rights of 8 which a reasonable person would have known." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). 9

2.Claim against Individual Defendants

Defendants argue that Defendants Hickey and Hoskins should also be granted summary

Because qualified immunity is an immunity from suit, rather than a defense to liability, it is 10 effectively lost if a case is erroneously permitted to go to trial. Id. For this reason, the Supreme Court has stressed the importance of resolving immunity questions at the earliest possible stage in litigation. Id. Therefore, if, drawing all reasonable inferences in favor of the nonmoving party, it 13 is clear as a matter of law that the defendants are entitled to qualified immunity, summary 14 judgment should be granted. See Wilkinson v. Torres, 610 F.3d 546, 548 (9th Cir. 2010) (reversing 15 denial of summary judgment where defendants were entitled to qualified immunity as a matter of 16 law). Where a defendant's entitlement to qualified immunity turns on genuinely disputed issues of 17 fact, however, summary judgment is not appropriate. See Espinosa v. City and County of San 18

Francisco, 598 F.3d 528, 532 (9th Cir. 2010) (affirming denial of summary judgment because there 19 were genuine issues of fact regarding whether officers violated plaintiff's Fourth Amendment 20 rights and whether those rights were clearly established); Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) ("If a genuine issue of material fact exists that prevents a determination of qualified 22 immunity at summary judgment, the case must proceed to trial.").

for analyzing qualified immunity. The analysis contains both a constitutional inquiry and an 25 immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003). The 26 constitutional inquiry requires the court to determine this threshold question: "Taken in the light 27 most favorable to the party asserting the injury, do the facts alleged show the officer's conduct 28

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-part approach violated a constitutional right?" Saucier, 533 U.S. at 201. If the Court determines that a 2 constitutional violation could be made out based on the parties' submissions, the second step is to 3 determine whether the right was clearly established. Id. "The relevant, dispositive inquiry in 4 determining whether a right is clearly established is whether it would be clear to a reasonable 5 officer that his conduct was unlawful in the situation he confronted." Id. at 202.

mandatory and that a court may exercise its sound discretion in determining which of the two 8 prongs of the qualified immunity analysis to address first. Pearson, 129 at 818. However, the 9

The Supreme Court recently held that the sequence of analysis set forth in Saucier is not

Court indicated that the sequence set forth in Saucier is often appropriate, id., and both parties 10 suggest that it may be appropriate here. Defs.' Mot. 9; Pl.'s Opp'n 13-14. Accordingly, the Court will first address the constitutional inquiry and then determine whether the right was clearly 12 established.

The Fourth Amendment does not prohibit a law enforcement officer's use of reasonable force during an arrest. See Graham v. Connor, 490 U.S. 386, 396 (1989) ("the right to make an 16 arrest or investigatory stop necessarily carries with it the right to use some degree of physical 17 coercion or threat thereof to effect it"). The reasonableness of any particular use of force is judged "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 19 hindsight." Id. The inquiry is an objective one, and the question is whether the officers' actions 20 were "'objectively reasonable' in light of the facts and circumstances confronting them, without 21 regard to their underlying intent or motivation." Id. at 397. In determining whether an officer's 22 actions were objectively reasonable, the court must consider "the severity of the crime at issue, 23 whether the suspect poses an immediate threat to the safety of the officers or others, and whether 24 he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396; see also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). The determination 26 requires careful attention to the facts and circumstances of the particular case and a careful 27 balancing of the individual's liberty interest against the government's interest in the application of

a.Constitutional Inquiry

force. Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). Because such balancing "nearly always 2 requires a jury to sift through disputed factual contentions, and to draw inferences therefrom," the Ninth Circuit has "held on many occasions that summary judgment . . . in excessive force cases 4 should be granted sparingly." Id.

unreasonable for Defendants Hickey and Hoskins to ignore the recommendations of EMT-7 firefighters, to pull Plaintiff to his feet, and to force him to walk to the patrol car despite his 8 persistent complaints of pain and an obvious limp. Pl.'s Opp'n 14; SAC ¶¶ 16-17. Defendants 9 move for summary judgment on the ground that, based on the information available to them at the 10 time, the actions of Defendants Hickey and Hoskins were objectively reasonable.

Vindhurst. They note that the EMT-certified firefighters arrived at the scene within minutes after Vindhurst examined both of Plaintiffs' legs and concluded that there were no visible, objective 16 signs of injury. Pl.'s Opp'n 3; Ruskell Dep. 34:4-8, 36:18-23; Vindhurst Dep. 18:16-24.

Plaintiff should be placed in C-spine restraints or transported by ambulance, Hickey Dep.129:20-19 130:12, 149:17-23; Hoskins Dep. 61:2-63:17, and this is not contradicted by Plaintiff's testimony.

Task Force members). While Defendants acknowledge that firefighter Vindhurst recalled stating, "hey, we can throw him in C-spine," Vindhurst Dep. 28:13-16, they point out that Vindhurst could 23 not remember to which deputy he said this. Id. at 28:15-22. Vindhurst also stated that he did not 24 think at the time that it was dangerous to transport Plaintiff without C-spine restraints. Id. at 56:18-25 20. In addition, Fire Captain Ash testified that he, not the police, cancelled the ambulance that had 26 been summoned. Ash Dep. 59:20-60:25. Based on these facts in the record, Defendants argue that Plaintiff's Fourth Amendment cause of action is based on the claim that it was objectively

In support of their motion, Defendants rely on the deposition testimony of Plaintiff,

Defendants Hickey and Hoskins, Deputy Charles West, and EMT-firefighters Ash, Ruskell, and Plaintiff jumped from the balcony, Obas Dep. 93:9-20, and it is undisputed that Ruskell and Defendants Hickey and Hoskins both testified that none of the firefighters informed them that See Obas Dep. 99:5-20 (stating that he did not recall conversations between the firefighters and the Hickey and Hoskins had no reason to believe that transporting Plaintiff by patrol car, without C-28 spine precautions, could cause or exacerbate any injury, and thus their decision to assist him to the 2 patrol car was not objectively unreasonable.

Defendants argue further that the manner in which Hickey and Hoskins lifted Plaintiff to his feet and walked him to the patrol car was not objectively unreasonable. Firefighter Ruskell 5 described the manner in which Defendants picked Plaintiff up as "the normal way that they always 6 pick someone up. Grab them behind the arms and assist them up to their feet. Which is the best 7 way to do it." Ruskell Dep. 44:18-20. Although Plaintiff and a number of other witnesses testified 8 that Plaintiff appeared to be in pain as he walked to the patrol car, Obas Dep. 103:14-105:6; Ruskell Dep. 44:10-45:11; Vindhurst Dep. 48:20-25, Defendants point out that he did not yell 10 loudly or scream in pain, Obas Dep. 103:19-105:7-14, and witnesses stated that he did not fall or 11 sag to the ground when assisted to his feet. Ash Dep. 67:18-20; Ruskell Dep. 77:19-78:5. The firefighters were still at the scene at this point, and none of them attempted to intercede or 13 suggested that Defendants stop so that Plaintiff could be reexamined. Ash Dep. 65:11-14, 68:5-13.

Based on these facts, Defendants argue that they did not use excessive force of any kind and had no 15 reason to believe that assisting Plaintiff to the patrol car could cause him any harm.

In opposing Defendant's motion, Plaintiff makes two main arguments. First, Plaintiff contends that there is a material factual dispute regarding what the EMT-firefighters recommended 18 to the officers and whether Defendants Hickey and Hoskins unreasonably ignored their 19 recommendations. Plaintiff argues that the deposition testimony of the EMT-firefighters calls into 20 question the Defendants' claim that Plaintiff was "cleared" for transport via patrol car and indicates 21 that Defendants in fact rejected the recommendation that Plaintiff be transported via ambulance 22 with C-spine precautions. In making this argument, Plaintiff draws heavily on deposition 23 testimony from firefighter Vindhurst, who examined Plaintiff while several officers, including EMTs cleared Plaintiff to be transported by patrol car. Hickey Dep. 129:20-130:12; Hoskins Dep.

59:24-61:1. Vindhurst, however, did not recall the law enforcement officers asking whether they 27 could transport Plaintiff themselves. Vindhurst Dep. 57:14-17. Vindhurst testified that he

Hickey and Hoskins, stood nearby. Hickey Dep. 148:15-21. Hickey and Hoskins testified that the recommended to at least one officer that Plaintiff be placed in C-spine precautions. Vindhurst Dep. 26:17-25 ("Q: So you did recommend to at least one officer that he could be put in C-spine since 3 he fell off of a second story? A: Absolutely. . . . Q: Was that your recommendation, or just to say, 4 hey, here's a possibility? A: Um, it was my recommendation."). Vindhurst also stated that the 5 officers did not want him to put Plaintiff in C-spine precautions. Vindhurst Dep. 30:15 ("They 6 didn't want me putting him in C-spine."); id. at 38:15-16 ("The sheriffs didn't want us putting him 7 in C-Spine. They wanted to take him in."). Although Vindhurst could not recall or describe the 8 officer to whom he recommended C-spine precautions, Plaintiff argues that Hickey's and Hoskins's own deposition testimony establishes that they were the officers who communicated 10 with the firefighters regarding Plaintiff's medical status and transport. Hickey Dep. 129:20-131:2; Hoskins Dep. 60:16-21.

As Defendants point out, Vindhurst's deposition testimony is somewhat equivocal.

Although he indicated at one point that he recommended putting Plaintiff in C-spine precautions, 14 he subsequently stated that he "didn't have a conversation with law enforcement," but merely "looked up and said hey we can throw him into C-spine." Vindhurst depo, 28:13-15. Plaintiff 16 notes, however, that other evidence supports a finding that Vindhurst affirmatively recommended 17 immobilizing Plaintiff and transporting him by ambulance. Firefighter Ruskell testified that the 18 firefighters always recommend transporting injured patients by ambulance and stated that they 19 would not likely have told law enforcement that Plaintiff was cleared to be transported via patrol 20 car. Ruskell Dep. 42:9-43:20, 46:13-23. The incident report prepared by Captain Ash also states 21 that fire department personnel offered to place Plaintiff in C-spine precautions and that the 22 ambulance was called off at the request of law enforcement:

Ash Dep. 108:9-109:25, Ex. 5. Firefighter Ruskell's testimony also suggests that the officers' 27 decision to transport Plaintiff via patrol car deviated from ordinary procedure. See Ruskell Dep. at 28 AMR Medic 31 arrived at scene and was cancelled at the request of law enforcement. E5211 personnel offered to place the [patient] in cspine precautions and officers advised they would transport the [patient] to the hospital without c- spine precautions.

42:24-43:3 ("We always recommend someone going with the ambulance because it's a safer 2 choice. But I don't have any specific instances off the top of my head where the police officers 3 wanted to transport the patient. Other than this one I guess."). Based on this testimony, Plaintiff 4 argues that there is a genuine factual dispute regarding the EMTs' recommendations as to how Amendment claim because the Defendants themselves have acknowledged that ignoring an EMT's 7 recommendation to transport a fall victim via ambulance would be unreasonable. Hickey Dep.

In his second argument opposing summary judgment, Plaintiff claims that even if Defendants' initial decision to decline C-spine precautions and transport Plaintiff by patrol car was reasonable, it was objectively unreasonable to force Plaintiff to continue walking despite his complaints of pain and visible limp. It is undisputed that Plaintiff made some sound of pain when 13 he was set on his feet, Ruskell Dep. 44:21-23; Vindhurst Dec. 41:18-25; Hickey Dep.144: 16-14 145:3; West Dep. 65:1-4, and Plaintiff testified that he felt a popping sensation that coincided with 15 an increase in the pain in his leg. Obas Dep. 107:2-14, 108:11-21. Plaintiff also stated that he 16 repeatedly told Defendants that he could not walk, Obas Dep. 107:17-18, and other witnesses, 17 including Defendant Hickey, confirmed that Plaintiff appeared to be limping and complained of 18 pain fairly loudly at least once, and possibly several times, on the way to the patrol car. Hickey Firefighter Vindhurst testified that Plaintff was "obviously in pain" and could not stand on his own.

Vindhurst Dep. 41:22-25. He stated that it struck him as "[m]orally" wrong to force Plaintiff to 22 continue to walk to the patrol car. Id. at 44:13-19. Plaintiff acknowledges that none of the EMT-23 firefighters intervened to stop Defendants from walking Plaintiff to the car or asked that he be 24 reexamined. Plaintiff points out, however, that the firefighters seemed to believe that once the 25 officers decided to transport Plaintiff themselves, they lacked authority to challenge that decision. Ruskell Dep. 46:2-5; Vindhurst Dep. 26:4-9. Plaintiff argues that based on the undisputed facts 27 that Plaintiff fell from a second-story balcony and complained of pain as he limped to the patrol

Plaintiff should be transported from the scene. He claims that the dispute is material to his Fourth 173:14-18; Hoskins Dep. 88:5-12. Plaintiff thus argues that summary judgment is inappropriate.

Dep. 146:4-5; West Dep. 77:3-16; Vindhurst Dep. 42:5-12, 48:20-22; Hoskins Dep. 81:18-82:8. car, it was objectively unreasonable for Defendants to force Plaintiff to keep walking to the patrol 2 car. Indeed, Plaintiff contends that the undisputed facts justify granting summary judgment in 3 favor of Plaintiff on this issue.

favor of Plaintiff, it appears that a reasonable jury could find the facts as follows: Plaintiff had 6 fallen nearly 13 feet and was visibly in significant pain; basic examination by the EMT-firefighters 7 revealed no visible injuries; the EMTs recommended, or at least suggested, that Plaintiff be put in

Based on the record currently before the Court, and drawing all reasonable inferences in C-spine precautions and transported by ambulance, and did not "clear" him to be transported by 9 patrol car; and Plaintiff unequivocally expressed pain when set upon his feet, repeatedly told 10 officers that he could not walk, and in fact experienced severe pain in his legs as he was forced to walk, with some but not total support, to the patrol car. Additionally, the undisputed facts suggest that Plaintiff expressed so much pain once in the patrol car that officers took him directly to the 13 hospital, rather than to county jail, and that hospital staff noted a visible deformity in Plaintiff's 14 leg. Based on the facts in the record, therefore, a jury could also find that forcing Defendant to 15 walk to the patrol car exacerbated his injuries.

violation presents a close question. Plaintiff has not alleged that he was dragged or pulled across 18 the pavement, nor has he suggested that the pain was so great that he was forced to cry out or 19 collapse to the ground. Nonetheless, a reasonable jury could find that forcing Plaintiff to walk 20 caused him significant additional pain and exacerbated the injury he incurred in jumping from the 21 balcony. Such an intrusion is not insignificant, and the countervailing government interest, by 22 contrast, is quite weak. See Santos, 287 F.3d at 853 (stating that the excessive force analysis 23 requires balancing the nature and quality of the intrusion on a person's liberty with the 24 countervailing governmental interests at stake). This is not a case in which Defendants were 25

"forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly 26 evolving." Graham, 490 U.S. at 397. At the time that Defendants forced him to stand and walk, 27

Whether these facts, if found by the jury, are sufficient to make out a Fourth Amendment

Plaintiff was handcuffed with his hands behind his back and since jumping from the balcony had not attempted to resist or evade arrest. The scene was secure, and an ambulance was on its way.

While transporting Plaintiff by ambulance might have led to some delay, there is no indication that 3 it would have raised safety concerns or given Plaintiff an opportunity to escape.

On the other hand, the fact that trained EMTs had examined Plaintiff and found no visible injury before Defendants forced him to his feet does make this case somewhat unusual. Plaintiff 6 cites to a number of cases denying summary judgment where officers had forced an injured suspect 7 to walk to a patrol car or ambulance. While some of these cases are analogous in other respects, *fn2

2007); Stockton v. Auren, Civil No. 07-556, 2008 WL 1994992 (D. Minn. May 5, 2008), they do 10 not present a situation in which trained EMTs found no visible injuries and then did not object as 11 law enforcement officers forced the plaintiff to walk. The Court agrees that this difference is see Bailey v. Oakdale Police Dept., No. 1:05-CV-00113, 2007 WL 1792057 (E.D. Cal. June 19, relevant, and that the EMTs' finding that Plaintiff had no visible injuries makes this case a closer 13 call. Nonetheless, Plaintiff has shown that a genuine dispute exists regarding the communications 14 between the EMTs and the Defendant officers, as well as the extent and visibility of the pain Plaintiff experienced during the walk to the patrol car. There is support in the record for Plaintiff's 16 claims that the EMTs recommended that Plaintiff be transported by ambulance in C-spine 17 restraints, that they did not authorize transporting him by patrol car, and that Plaintiff 18 unequivocally expressed pain and inability to walk to Defendants Hickey and Hoskins. The Court 19 cannot determine exactly what was recommended and how much pain Plaintiff exhibited without 20 carefully weighing the evidence and making credibility determinations. These determinations are 21 reserved for a jury and cannot be made by the Court on summary judgment. Drawing all 22 reasonable inferences in the light most favorable Plaintiff, however, the Court agrees with Plaintiff 23 that a jury could find it objectively unreasonable for Hickey and Hoskins to force Plaintiff to walk to the patrol car, against the EMT's recommendations, rather than waiting to be transported in an 2 ambulance. Accordingly, the Court concludes that there is a genuine issue of material fact as to 3 whether Defendants' actions violated the Fourth Amendment.

b.Immunity Inquiry

Because the Court has found that Plaintiff's factual allegations, if true, may constitute a Fourth Amendment violation, the Court must proceed to the second step in the qualified immunity 7 analysis: whether Plaintiff's rights were clearly established such that a reasonable officer would 8 have known that the conduct alleged was unlawful. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003). There is no question that the basic right to be free 10 of excessive use of force was clearly established in 2008. The immunity inquiry, however, is more specific. The Court must determine whether it would have been clear to a reasonable officer in Defendants' position that his conduct was unlawful in the situation he confronted. Id. This does 13 not mean that there must be a prior case "on 'all fours' with the facts of the instant case," Rogers v. 14

County of San Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007), or that "courts must have agreed upon 15 the precise formulation of the standard." Saucier, 533 U.S. at 202. Rather, a right is clearly 16 established if "[t]he contours of the right [are] sufficiently clear that a reasonable official would 17 understand that what he is doing violates that right." Id.

In addressing this issue, Defendants argue, based on their version of the facts, that since the EMTs had cleared Plaintiff for transport by patrol car, Plaintiff must be asserting "the right of an 20 arrestee to be placed in cervical spine restraints . . . and be transported by ambulance to the 21 hospital, even though medical personnel on the scene confirmed that the arrestee did not suffer 22 injury to his head, neck, or spine." Defs.' Mot. 8. The Court agrees that such a right, if asserted, 23 may not be clearly established. The right asserted by Plaintiff, however, is better characterized as 24 the right of an arrestee not to be forced to walk to a patrol car when EMTs on the scene have 25 recommended that he be transported by ambulance and when walking visibly causes him pain.

Here, the Court finds that the immunity inquiry, like the constitutional inquiry, turns on genuinely disputed factual issues. Defendants Hickey and Hoskins both testified that it would be objectively unreasonable to ignore the advice of EMTs on the scene. Hickey Dep. 173:14-18;

Hoskins Dep. 88:5-12. At oral argument, Defendants' counsel also conceded that if the EMTs 3 unequivocally recommended that Plaintiff be transported by ambulance or placed in c-spine 4 restraints, it would be objectively unreasonable to ignore that recommendation. Thus, no party has 5 argued that Defendants would be entitled to qualified immunity if Firefighter Vindhurst 6 affirmatively recommended that Plaintiff be immobilized and transported by ambulance directly to 7 the hospital. The Court has found that a genuine factual dispute exists regarding what Vindhurst 8 recommended to Defendants Hoskins and Hickey, and this factual dispute is also "material to a 9 proper determination of the reasonableness of the officers' belief in the legality of their actions."

Fourth Amendment rights and whether those rights were clearly established. The Court therefore Defendants Hickey and Hoskins.

against Defendants Hickey, Hoskins, and the County of Monterey. Under California law, law

Espinosa, 598 F.3d at 532. Accordingly, a grant of summary judgment is not appropriate.*fn3 Based on the foregoing analysis, the Court finds that Plaintiff has carried his burden to show genuine issues of material fact regarding whether the individual defendants violated his

DENIES Defendants' motion for summary judgment on Plaintiff's Fourth Amendment claim as to

In addition to his Fourth Amendment claim, Plaintiff also brings a state law battery claim enforcement officers are explicitly permitted to use reasonable force to effect an arrest, prevent 2 escape, or overcome the resistance of a person being arrested. Cal. Penal Code § 835a. 3

Accordingly, a law enforcement officer who uses force in the course of an arrest is not liable for 4 battery unless the plaintiff proves that the force used was unreasonable. Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272-73, 74 Cal. Rptr. 2d 614 (Cal. Ct. App. 1998). As both parties 6 recognize, battery claims brought under California law are analyzed under the reasonableness 7 standard used to evaluate Fourth Amendment claims and require the same evidentiary showing.

(Cal. Ct. App. 2002); Saman v. Robbins, 173 F.3d 1150, 1156-57 & n.6 (9th Cir. 1999). Thus, the 10 analysis of Plaintiff's Section 1983 claim applies equally to Plaintiff's claim for battery.

See id. at 1274; Susag v. City of Lake Forest, 94 Cal. App. 4th 1401, 1413, 115 Cal. Rptr. 2d 269

Accordingly, based on the analysis above, the Court finds that Plaintiff has raised a genuine issue of material fact as to whether the conduct of Defendants Hickey and Hoskins was unreasonable and 13 therefore constituted a battery. Additionally, because Monterey County is liable for the acts or 14 omissions of its employees if those acts or omissions would have given rise to a cause of action 15 against that employee, Cal. Gov't Code § 815.2(a), there is also a genuine issue of material fact 16 regarding the County's liability.

defendants, alleging that Defendants breached a duty to use reasonable care in carrying out

Plaintiff's arrest, including a duty to defer to the advice of EMTs and to avoid causing unnecessary 21 harm or pain. SAC ¶ 23. Defendants argue that this claim must fail because Defendants Hickey 22 and Hoskins are immune under Section 820.2 of the Government Claims Act and Section 3333.3 of 23 the California Civil Code. Moreover, if Hickey and Hoskins are immune, then the County would 24 also be immune from liability. See Cal. Gov't Code § 815.2(b) ("Except as otherwise provided by 25 statute, a public entity is not liable for an injury resulting from an act or omission of an employee 26 of the public entity where the employee is immune from liability.") Defendants thus seek summary 27 judgment on Plaintiff's negligence claim. 28

C.Negligence

Plaintiff also brings a state law negligence claim against the County and individual public employee is not liable for an injury resulting from his act or omission where the act or 4 omission was the result of the exercise of the discretion vested in him, whether or not such 5 discretion be abused." Cal. Gov't Code § 820.2. It is clear from California case law, however, that "not all acts requiring a public employee to choose among alternatives entail the use of 'discretion' 7 within the meaning of section 820.2." Barner v. Leeds, 24 Cal. 4th 676, 684-85, 102 Cal. Rptr. 2d 8

Court has drawn a distinction between policy decisions, which are immunized, and ministerial or 10 operational decisions, which are not. In Caldwell v. Montoya, the California Supreme Court

1. Government Code § 820.2 immunity for discretionary acts

The Government Claims Act provides that "[e]xcept as otherwise provided by statute, a 97 (2000). In analyzing the discretionary immunity conferred by § 820.2, the California Supreme explained that immunity is reserved for areas of quasi-legislative policy-making and applies only to "deliberate and considered policy decisions, in which a [conscious] balancing [of] risks and 13 advantages . . . took place." 10 Cal. 4th 972, 981, 42 Cal. Rptr. 2d 842 (1995) (quotation makes and 14 citation omitted). In contrast, day-to-day operational decisions are not immunized by § 820.2, even 15 if they require "exercise of considerable judgmental skills." Barner, 24 Cal. 4th at 686-87. Thus, 16 while a public defender's initial decision to represent a particular defendant may be a discretionary 17 decision immunized by § 820.2, the decisions made and actions undertaken during the course of 18 the representation are not immunized, even though "such legal representation entails difficult 19 choices among complex alternatives and the exercise of professional skill." Id. at 688, 691. 20

Similarly, while a police officer's initial decision to investigate a car accident may constitute a 21 discretionary decision immunized by § 820.2, the officer is not immunized from any negligence in 22 conducting the investigation. McCorkle v. City of Los Angeles, 70 Cal. 2d 252, 261-262 74 Cal. Rptr. 389 (1969). These California Supreme Court cases suggest that the initial, considered 24 decision to conduct a tactical operation to apprehend Plaintiff on October 23, 2008, would be 25 immunized by § 820.2, but the decisions made during the course of the tactical operation and arrest 26 would not. Thus, it appears that § 820.2 does not immunize Defendants for any negligence that 27 occurred during Plaintiff's arrest and transport to the patrol car. district court decisions that appear to apply § 820.2 immunity to decisions made by law 3 enforcement officers in the course of an arrest. Two decisions from the Southern District of California state that § 820.2 grants immunity to law enforcement officers for decisions made in the 5 course of an arrest unless they use unreasonable force. Price v. County of San Diego, 990 F. Supp. Cal. 1994). Defendants also cite a California Court of Appeal decision that implies that § 820.2 8 provides immunity from liability in wrongful death actions as long as the police officer's use of 9 deadly force was reasonable. See Martinez v. County of Los Angeles, 47 Cal. App. 4th 334, 349, Despite this relatively clear precedent, Defendants have identified a number of state and 1230, 1244 (S.D. Cal. 1998)*fn4 ; Reynolds v. County of San Diego, 858 F. Supp. 1064, 1074 (S.D. 54 Cal. Rptr. 2d 772 (Cal. Ct. App. 1996) ("The test for determining whether a homicide was justifiable under Penal Code section 196 is whether the circumstances reasonably create[d] a fear of death or serious bodily harm to the officer or to another. The same is true of Government Code 13 section 820.2, which provides immunity from liability to public employees for their discretionary 14 acts.") (quotation marks and citations omitted). 15

These decisions appear to be based on a reading of § 820.2 alongside other statutory provisions that immunize law enforcement officers from liability for injuries resulting from the use 17 of reasonable force against a suspect whom they had probable cause to arrest. Martinez, for 18 instance, relied primarily on the immunity granted by Penal Code § 196 for homicides "necessarily 19 committed in overcoming actual resistance to the execution of some legal process, or in the 20 discharge of any other legal duty," and mentioned § 820.2 only in passing. 47 Cal. App. 4th at Amendment reasonableness analysis, and that therefore any wrongful death claims were barred.

Id. at 350. In this case, a similar statutory provision precludes liability for the use of "reasonable 24 force to effect . . . arrest, to prevent escape or to overcome resistance." Cal. Penal Code § 835a.

Thus, while the Court does not agree that § 820.2 immunizes Defendants' actions, it appears that

349. The Martinez court concluded that the defendant's homicide was justified under a Fourth Plaintiff's negligence claim, which is premised on a failure to use reasonable care in carrying out 2 his arrest, will only succeed if Plaintiff can demonstrate that Defendants used unreasonable force. 3

The Court has already determined, however, that there is a genuine issue of material fact as to 4 whether Defendants used unreasonable force, and the Court cannot grant summary judgment on 5 that ground. 6

2. California Civil Code § 3333.3

Defendants also argue that Plaintiff's negligence claim is barred by Section 3333.3 of the

California Civil Code. Section 3333.3 reads as follows: "In any action for damages based on 9 negligence, a person may not recover any damages if the plaintiff's injuries were in any way 10 proximately caused by the plaintiff's commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony." Section 3333.3 was passed by California voters in 1996 as Proposition 213. Thus, in analyzing Section 3333.3, California courts have 13 looked to "the intent of the electorate based on the language of the initiative itself" and the 14 information provided in the voter pamphlet. Jenkins v. County of Los Angeles,74 Cal. App. 4th Attorney General and contained in the ballot pamphlet stated that Proposition 213 "[d]enies all 17 recovery of damages to a convicted felon whose injuries were proximately caused during the 18 commission of the felony or immediate flight therefrom." Id. (citing Ballot Pamp., Prop. 213, text 19 of proposed law, Gen. Elec. (Nov. 5, 1996) p. 48). The ballot pamphlet also contained an analysis 20 by the Legislative Analyst. This analysis stated, in relevant part: 524, 531, 88 Cal. Rptr. 2d 149 (Cal. Ct. App. 1999). The summary of the initiative prepared by the Currently, in certain cases a person who is injured while breaking the law may sue on the basis of another person's negligence to recover any losses resulting from the injury. For example, a person convicted of a robbery who was injured because he or she slipped and fell while fleeing the scene of the crime can sue to recover losses resulting from the injury. [¶] This measure prohibits a person convicted of a felony from suing to recover any losses suffered while committing the crime or fleeing from the crime scene if these losses resulted from another person's negligence.

Id. (citing Ballot Pamp., supra, p. 49). Based on this language, a California appeals court 26 concluded that "the intent was to prevent felons from recovering for damages that were negligently 27 inflicted during commission of the crime or during immediate flight from the crime." Id. at 532.

injured during his flight from the act of violating his felony probation.*fn5 Defendants also suggest 3 that Section 3333.3 applies because Plaintiff was arrested based on a warrant that included several 4 felony charges, to three of which Plaintiff ultimately pled guilty.*fn6 See Hickey Dep. 161:14-162:4;

October 23, 2008, but instead rely on parole violations connected to a prior felony conviction and 7 an outstanding warrant for felonies apparently committed earlier that year. *fn7 The Court must 8 therefore determine whether Plaintiff's injuries can be deemed "in any way proximately caused" by

The Court agrees with Defendants that Plaintiff cannot avoid Section 3333.3 by arguing that his injuries were caused by Defendants' actions subsequent to his flight, rather than his own 12 actions in fleeing from law enforcement. The intent of Section 3333.3 is to "require plaintiffs who 13 are felons to assume the risk of any injuries sustained during the commission of a crime or during 14 the flight to avoid apprehension for the crime," and negligence by the police during the course of 15 arrest is clearly a foreseeable risk that the statute intends felons to assume. Espinosa v. Kirkwood, which the time between the commission of the felony and the flight from apprehension is weeks or 3 even months. California courts do not appear to have addressed the precise situation presented 4 here. However, two California decisions that analyze the scope of the statute suggest that Section 3333.3 may not apply where there is a break in the chain of events between the commission of the 6 felony and the flight from apprehension that resulted in the plaintiff's injuries. See Espinosa v.

It is not so clear, however, that the statute is intended to cover situations like this one, in Kirkwood, 185 Cal. App. 4th at 1275 (reasoning that "[t]here was no break in the chain of events 8 between the criminal conduct the three [plaintiffs] engaged in jointly and [the] attempt to flee in 9 defendant's vehicle" and thus § 3333.3 should apply); Jenkins v. County of Los Angeles, 74 Cal.

App. 4th 524, 535, 88 Cal. Rptr. 2d 149 (Cal. Ct. App. 1999) (noting argument that plaintiff went to a "place of safety" between commission of crime and flight from apprehension, but rejecting the argument as not supported by the record). In cases like this one, where the causal connection 13 between the felony committed and a subsequent flight from the police is attenuated or uncertain, 14

California courts seem to require proof of more than simply the fact of the prior felony and the later 15 flight to establish proximate cause. See id. (reversing grant of summary judgment where plaintiff 16 had committed crime four hours earlier and police were not reacting to a report of that crime when 17 plaintiff was shot fleeing from the police). In this case, the connection between the commission of 18 the felony and the injury sustained is uncertain and attenuated by the passage of time. The record 19 does indicate that Plaintiff knew he was violating the terms of his parole and that a parole warrant 20 had been issued based on his failure to report to his parole officer. However, Plaintiff testified that 21 he jumped from the balcony not to avoid arrest, but because he saw two men coming at him with 22 guns drawn and feared for his life. Obas Dep. 54:3-7, 71:13-17. It is also not clear from the record 23 whether the officers sought Plaintiff based on the felony arrest warrant or based solely on his status 24 as a parole absconder, and it appears that Plaintiff did not know that he was wanted on new felony 25 charges. Obas Dep. 16:24-17:4. In sum, the precise causal relationship between Plaintiff's prior 26 commission of felony offenses and Plaintiff's injuries remains uncertain. On these facts, the Court cannot find, as a matter of law, that Plaintiff's injury was proximately caused by the commission of 2 a felony or the immediate flight therefrom.

Based on the above analysis, the Court does not find that Defendants are immune from liability on Plaintiff's negligence claim. In addition, because the Court has found a triable issue of 5 fact as to whether Defendants conduct was objectively unreasonable, it follows that there is also a 6 triable issue of fact as to whether Defendants exercised reasonable care. Accordingly, Defendants' 7 motion for summary judgment on Plaintiff's negligence claim is DENIED.

IV.Conclusion

For the foregoing reasons, the Court grants in part and denies in part Defendants' motion for summary judgment. The Court GRANTS summary judgment as to Plaintiff's § 1983 claim against Monterey County. The Court DENIES summary judgment as to all other claims. IT IS SO ORDERED. 13 14


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