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Joseph Ciampi v. City of Palo Alto

May 11, 2011


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


United States District Court For the Northern District of California

Plaintiff Joseph Ciampi, proceeding pro se, brings the instant action against the City of Palo

Alto and current and former employees of the Palo Alto Police Department. Plaintiff's claims arise 19 out of an incident on March 15, 2008 that resulted in Plaintiff's arrest and the use of Taser guns 20 against him. The criminal charges against Plaintiff were dismissed, and Plaintiff now seeks redress 21 for alleged violations of his Fourth and Fourteenth Amendment rights, as well as violations of state 22 law. The action is before the Court on Defendants' motion for summary judgment. The Court held 23 oral argument on April 21, 2011. 24 25 part and DENIES in part Defendants' motion for summary judgment. Specifically, the Court 26 GRANTS summary adjudication in favor of Defendants on the following claims: (1) first cause of 27 action under 42 U.S.C. § 1983; (2) fifth cause of action for defamation; (3) sixth cause of action for 28 malicious prosecution; and (4) seventh cause of action for false imprisonment and false arrest. The Having considered the arguments and submissions of the parties, the Court GRANTS in Court DENIES summary adjudication on the following claims: (2) second cause of action for 2 assault and battery; (3) third cause of action for intentional infliction of emotional distress; and (4) 3 fourth cause of action for negligence.


A.The March 15, 2008 Incident

This case arises out of an incident that occurred on March 15, 2008, in which officers of the Palo Alto Police Department used Taser guns to subdue and arrest Plaintiff Joseph Ciampi. On the 8 morning of March 15, 2008, Plaintiff was sleeping in his vehicle, a 1985 Dodge Ram van, which 9 was parked on Lincoln Street in a residential neighborhood of Palo Alto, California. Second 10

Lincoln Avenue and neighboring streets on and off for nearly ten years. Decl. of Joseph Ciampi in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summary Judgment ("Ciampi Decl.") ¶ 63. That morning, 13 Amended Complaint ("SAC") ¶ 14. Plaintiff claims that he had been parking his vehicle on Palo Alto resident Ken Alsman called the Palo Alto police to complain about a man living in a van 14 outside his house. SAC ¶ 15; Decl. of Steven Al. Sherman in Supp. of Defs.'s Mot. for Summary Alsman made to the Palo Alto police dispatch, Sherman Decl. ¶ 21 & Ex. 18, and Plaintiff also 17 provides a transcript of the call, which conforms to the recording provided by Defendants.*fn1 Ciampi 18

Decl. Ex. 548-2 -- 548-5. On the call, Mr. Alsman stated that a man, acknowledged by all parties to 19 be Plaintiff, had been parking and living on the street outside his house and "scares the daylights 20 out of [Mr. Alsman's] wife." Sherman Decl. Ex. 18. Mr. Alsman acknowledged that Plaintiff had 21 never threatened his wife, but stated that he scares his wife and that "it's sort of a veiled threat . . . 22 he's out there all the time." Id. Mr. Alsman also stated that his wife was coming back from 23 vacation, and his young daughter was coming back from school, and he did not want Plaintiff to be 24 there when they returned. Id. The dispatcher advised Mr. Alsman that there was no law against living in a vehicle, but stated that "we'll check it out." Id. The parties appear to agree that Plaintiff 2 was not violating any laws by sleeping or living in his parked vehicle.

Alto Police Department Report 08-1777 (including reports by Officers Temores, Wagner, and Burger), Sherman Decl. Ex. 2 at 29, 38. Defendant Police Officer April Wagner also responded to 7 the call. Id. at 33. Defendant Temores arrived at the scene first, followed by Defendant Wagner. 8

At approximately 10:07 a.m. on March 15, 2008, Defendant Police Officers Manuel Temores and Kelly Burger were dispatched to Lincoln Street based on Mr. Alsman's report. Palo Id. at 33, 38. At the location identified by Mr. Alsman, Temores and Wagner saw a blue van with 9 windows that were "boarded up" with cardboard or "blackened." Id. at 29, 33. Temores and 10 Wagner approached the van and knocked on its exterior. Id. at 29, 33. Their reports of the incident conflict as to whether they heard a response from inside the van, but they agree that after knocking, Defendant Wagner opened the van's side door, which she claims was unlocked and partially open.

Id. at 29, 33. Plaintiff claims that he was asleep and wearing earplugs at the time, and that he was 14 awakened by a noise outside the van. Ciampi Decl. ¶ 65. He claims that before he could identify 15 the noise, an unknown person began to open the door to his van. Id. Startled, he shut and locked 16 the door. Id. 17

After Plaintiff shut the van door, Defendants Wagner and Temores explained that they just needed to speak with him and told him to open the door so they could talk to him. Sherman Decl. 19 Ex. 2 at 29, 33; Ciampi Decl. ¶ 65. Plaintiff told the police officers that he did not want to talk to 20 them and remained in the van with the door closed and locked. Sherman Decl. Ex. 2 at 29, 33; 21 Ciampi Decl. ¶ 65. Eventually, Defendant Temores "used a bluff" to induce Plaintiff to exit the 22 van. Sherman Decl. Ex. 2 at 29. He first informed Plaintiff that they intended to tow his vehicle 23 for overnight parking and then pretended to use his radio to ask dispatch to send out a tow truck. 24

T-shirt and shorts. Id. at 29, 33; Ciampi Decl. at 66-67. In their reports on the incident, 26 Defendants Temores and Wagner state that Ciampi was very angry when he exited the van and 27 came out screaming at them. Sherman Decl. at 29, 33. Plaintiff acknowledges that he was "upset" 28 and "agitated" because he believed (apparently correctly) that he was not violating any law and had Id. at 29, 33. This induced Plaintiff to open the door and exit the van, barefoot and wearing only a 25 the right to refuse to speak with the police. Ciampi Decl. ¶ 65-66. Once he exited the vehicle, 2

Plaintiff demanded to know what ordinance he was accused of violating and why Defendants 3 intended to tow his vehicle. Ciampi Decl. ¶ ¶ 66-67. Defendant Wagner's report characterizes 4

Plaintiff's behavior as "verbally abusive and argumentative" and states that he was "completely 5 uncooperative and used angry words." Sherman Decl. at 33. Defendant Temores's report states 6 that he "felt scared and threatened by the way [Plaintiff] exited the van in such an explosive 7 manner." Id. at 29. 8

Shortly after Plaintiff exited the van, Defendant Burger arrived on the scene. In his report,

Burger states that when he exited his patrol car, he heard a man using profanity and raising his 10 voice. Sherman Decl. Ex. 2 at 38. Burger's report also states that when he arrived at the van, Plaintiff appeared very upset, and his fists were clenched. Id. Around that time, Defendant Burger commented that Plaintiff was likely under the influence of drugs. Id. at 33. The Defendants' 13 reports state that they observed "pock marks" or abscesses on Plaintiff's arms similar to those 14 associated with heroin addicts and other persons who use intravenous drugs. Id. at 30, 33, 38. The 15 police reports also state that Plaintiff's pupils were either dilated or constricted. See id. at 30 16 Plaintiff's pupils were constricted to 3.0-1.5 millimeters). Based on these observations, as well as 18 Plaintiff's agitation, Defendants state that they believed Plaintiff was likely under the influence of a 19 controlled substance. Id. at 30, 33, 38. Indeed, Plaintiff states that Defendant Temores accused 20 him of being a heroin addict, and that Plaintiff vehemently denied the accusation. Ciampi Decl. 21 ¶ 68; SAC ¶ 25; see also Sherman Decl. Ex. 15 at 10:10:06-08 (MAV recording in which a voice 22 says, "Are you a heroin addict or what?"). Plaintiff acknowledges that he has a skin condition that 23 causes sores on his skin, but claims that the sores were on the tops of his arms, not on his veins.*fn2 24

Ciampi Decl. ¶ 68. Plaintiff states that he pointed this out to Defendants at the time, explaining 25

(Temores report stating that Plaintiff's pupils were dilated); id. at 38 (Burger report stating that that "drug users don't shoot into the tops of their arms, they shoot into their veins." Ciampi Decl. 2 ¶ 68; Sherman Decl. Ex. 15 at 10:10:07-14. Plaintiff also claims that at some point around this 3 time, he heard Defendant Burger say that Plaintiff was under arrest. Id. ¶ 69. Plaintiff did not 4 know for what he was being arrested. Id. At this point, the situation quickly escalated, and 5 Plaintiff and Defendants provide somewhat differing accounts of what occurred.

for Health and Safety Code § 11550(a), being under the influence of a controlled substance) or 9 after Burger asked Plaintiff to step away from the van door, Plaintiff jumped back into the van. 10

and they did not know whether Plaintiff had a weapon accessible. Id. at 30, 38. Defendant Burger

told Plaintiff to exit the van, but Plaintiff instead starting making a call on his cell phone. Id. at 30, 13

B.Defendants' Account of the Use of Force

According to the Defendants, at some point, either after Burger used the term "550" (short Sherman Decl. Ex. 2 at 30, 33, 38. This concerned the Defendants because the van was unsecured, 33. When Plaintiff remained in the van, Defendants Burger and Temores activated their Tasers and 14 pointed them at Plaintiff's chest. Id. at 30, 38. Although Burger warned Plaintiff that they would 15 deploy their Tasers if he did not come out of the van, Plaintiff refused to come out and told them 16 that he was calling his lawyer. Id. at 30, 38. Plaintiff then scooted toward the door of the van, put 17 his feet on the pavement, and picked up a two-liter plastic soda bottle partially filled with a liquid. 18

Id. at 30, 33, 38. Defendant Temores claims that he "immediately thought the 2-liter of soda could 19 be a dry-ice bomb which could be used as a weapon against us." Id. at 30. 20

21 fence.*fn3 Defendant Temores states that Burger attempted to grab Plaintiff's arms, but Plaintiff 22 flailed his arms at Burger. Id. Temores then "yelled to Officer Burger to deploy his Taser" 23 because Temores had placed his Taser back in his holster and was too close to deploy it. Id. 24

Defendant Burger then pulled Plaintiff from the van and moved him against a residential

Apparently convinced that Plaintiff was attempting to escape and concerned that there might be a 2 weapon in the van, Defendant Burger shot one Taser cartridge at Plaintiff from approximately one 3 foot away. Id. at 38. Defendant Burger reported that after he activated his Taser, Plaintiff 4

"appeared to be dancing on his feet." Id. Thereafter, however, the officers claim that Plaintiff 5 charged at Defendant Burger and either hit or attempted to hit him. Id. at 30, 29. Defendant 6

Burger then pulled Plaintiff to the ground, and Defendants Temores and Wagner fought Plaintiff on 7 the ground while Burger reloaded his Taser. Id. at 30, 39. The officers claim that Plaintiff 8 continued to resist arrest, kicking and hitting them. Id. at 30, 34. During the struggle on the 9 ground, Defendant Temores activated his Taser in "stun-drive" mode and drove the Taser into 10

Plaintiff's front torso. Id. at 30. After that, Plaintiff stopped fighting and complied with verbal commands, and Defendants were able to handcuff and arrest him. Id. Defendants' reports indicate that Plaintiff was bleeding from his left forearm, causing "a small puddle of blood to gather on the 13 sidewalk." Id. at 34, 39. Plaint also suffered abrasions to his upper left arm, left shoulder, below 14 his right eye, and to both front thighs. Id. at 34. 15

He claims that after he heard Defendant Burger state that he was under arrest, Plaintiff turned 18 around and picked up his cell phone to call someone to secure his vehicles and possessions so that 19 they would not be impounded. Ciampi Decl. ¶ 69. However, he claims that as soon as he began to 20 pick up his cell phone, Defendants Burger and Temores rushed at him. Id. Plaintiff therefore 21 scooted into his vehicle so that he could complete his phone call. Id. At that point, Defendants 22

Plaintiff claims that he complied with this order, pausing on his way out of the van to pick up an 24 open bottle of Diet Sprite that had fallen to the ground and set it upright. Id. Plaintiff states that he 25 distinctly remembers walking over to the residential fence of his own accord, with his hand in the 26 air.*fn4 Id. ¶ 70. Once at the fence, Plaintiff turned around to face Defendant Burger, with Defendant 27

C.Plaintiff's Account of the Use of Force

Plaintiff's version of the facts leading up to the Taser deployment is somewhat different.

Burger and Temores pointed their Tasers at Plaintiff and ordered him to exit the vehicle. Id. 23

Temores standing an arm's length away. Id. Defendant Burger ordered Plaintiff to put his hands 2 behind his back. Id. ¶ 71. Concerned that he could lose his belongings permanently if arrested, 3

Plaintiff claims that, then, without any warning, Defendant Burger fired his Taser gun while aiming 5 the laser sight at Plaintiff's face. Id. 6

7 chest. Id. ¶ 71. He states that the pain was "both excruciating and frightening" and that if felt "like 8 someone had hooked a fire hose to my arm and were pumping thousands gallons of water into my 9 body through my arm." Id. at ¶ ¶ 71-72. Plaintiff began to swing his left arm violently in an 10 attempt to dislodge the Taser probe from his arm. Id. at ¶ 71. He states that once he realized that

Plaintiff wanted to complete his phone call and asked Defendant Burger if he could do so. Id. 4

Plaintiff felt "strong, powerful and extremely painful surges of pressure" in his arm and

Burger did not intend to stop Tasing him, he instinctively attempted to knock the Taser out of Burger's hands. Id. at ¶ 72. Plaintiff claims that after he hit the Taser gun, the flow of electricity 13 stopped, but then Defendant Burger pulled the trigger on the Taser a second time. Id. at ¶ 74. 14

Plaintiff estimates that Defendant Burger shocked him for over 20 seconds total. Id. at 76. He also 15 claims that Defendant Temores deployed his Taser gun in the direction of Plaintiff's face and groin 16 area. Id. ¶ 78. In addition to the injuries acknowledged by Defendants, Plaintiff claims that he 17 suffered a puncture wound to his rear end and that there was blood all over the back of his shorts 18 from that wound. Id. at ¶ 81. officer in performance of his duties, Cal. Penal Code § 69. See Transcript of December 17, 2008 22 Proceedings in People v. Ciampi, No. BB833050, Sherman Decl. Ex. 7 at 185. The state court held 23 preliminary examination proceedings beginning on December 1, 2008, and considered a motion to 24 suppress on December 17, 2008. See Sherman Decl. Exs. 4-7. In the motion to suppress, 25

Plaintiff's criminal defense counsel argued that the ruse employed by Officer Temores -- 26 pretending to call a tow truck to tow Plaintiff's van -- was unlawful and required suppression of the 27

Officers' subsequent observations of Plaintiff. Judge Thang Nguyen Barrett agreed, finding that at 28 the point of the Officers' initial contact with Plaintiff, he was suspected of no criminal activities

D.Plaintiff's Criminal Proceedings and Initiation of the Instant Action

After his arrest on March 15, 2008, Plaintiff was charged with obstructing or resisting an and had a right to refuse to talk to the police. Sherman Decl. Ex. 7 at 185. Judge Barrett reasoned 2 that the ruse employed by Officer Temores to coerce Plaintiff from his van unlawfully 3 circumvented Plaintiff's right not to submit to a consensual encounter. Id. Concluding that the rest 4 of the encounter flowed from the unlawful ruse, Judge Barrett granted the motion to suppress and 5 dismissed the criminal complaint. Id. at 185-86. 6

Burns; Officers Temores, Wagner, and Burger; Sergeant Natasha Powers; and Agent Dan Ryan. 9

Approximately six months later, Plaintiff filed the instant action in federal court against the City of Palo Alto; former Palo Alto Chief of Police Lynn Johnson; current Chief of Police Dennis 8

The operative Second Amended Complaint asserts seven causes of action under state and federal 10 law: (1) violations of the Fourth and Fourteenth Amendment, pursuant to 42 U.S.C. § 1983; (2)

(6) malicious prosecution; and (7) false arrest and false imprisonment. Defendants now move for 13 summary judgment on all of these claims.

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 17

477 U.S. 317, 321 (1986). Material facts are those which may affect the outcome of the case, and a 18 dispute as to a material fact is "genuine" only if there is sufficient evidence for a reasonable trier of 19 fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 20

(1986). On a motion for summary judgment, the Court draws all reasonable inferences that may be 21 taken from the underlying facts in the light most favorable to the nonmoving party. Matsushita 22 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]he district court does 23 not assess credibility or weigh the evidence, but simply determines whether there is a genuine 24 factual issue for trial." House v. Bell, 547 U.S. 518, 559-560 (2006). 25 26 material fact. Celotex, 477 U.S. at 331. The moving party can satisfy this burden in two ways. 27

"First the moving party may submit affirmative evidence that negates an essential element of the 28 nonmoving party's claim. Second, the moving party may demonstrate to the Court that the otional distress; (4) negligence; (5) defamation; assault and battery; (3) intentional infliction of em 12

II.Legal Standard

Summary judgment should be granted if there is no genuine issue of material fact and the The moving party has the initial burden of production for showing the absence of any nonmoving party's evidence is insufficient to establish an essential element of the nonmoving 2 party's claim." Id. Once the moving party has satisfied its initial burden of production, the burden 3 of proof shifts to the non-movant to show that that there is a genuine issue of material fact. A party 4 asserting that a fact is genuinely disputed must support that assertion by either citing to particular 5 parts of materials in the record or by showing that the materials cited by the moving party do not 6 establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c). The non-movant must go beyond 7 its pleadings "and by her own affidavits, or by the depositions, answers to interrogatories, and 8 admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 9

477 U.S. at 324 (internal quotation marks and citation omitted).10

R. Civ. Pro. 56(c)(2). In this case, both parties have raised objections to the evidence submitted. 14

In support of his opposition brief, Plaintiff, proceeding pro se, submitted several hundred pages of printed documents, including various news articles, transcripts, and photographs, as well 17 as nine DVDs containing audio and video recordings and over 1,500 pages of electronic 18 documents. Defendants object to many of these submissions on grounds of irrelevance, improper 19 opinion, hearsay, lack of personal knowledge, and lack of authentication. The Court finds that 20 much of the evidence to which Defendants object is not relevant to Defendants' motion for 21 summary judgment and need not be considered in resolving the motion. However, the Court will 22 briefly consider a number of Defendants' specific challenges that bear on evidence relevant to the 23 motion. See Doe v. Starbucks, Inc., No. SACV 08--0582 AG (CWx), 2009 WL 5183773, at *1 24

(C.D.Cal. Dec. 18, 2009) ("In motions for summary judgment with numerous objections, it is often 25 unnecessary and impractical for a court to methodically scrutinize each objection and give a full 26 analysis of each argument raised."). 27

First, Plaintiff has submitted a number of newspaper articles in support of his defamation

28 claim. Ciampi Decl. Ex. 321. Defendants object to these articles on grounds of relevance, hearsay,

III.Objections to Evidence

On a Rule 56 motion for summary judgment, a party "may object that the material cited to

support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. 13

A.Defendants' Objections to Plaintiff's Evidence and lack of proper authentication. However, these articles are directly relevant to Plaintiff's 2 defamation claim because they demonstrate publication of statements made by several of the 3

Defendants. See Fed. R. Evid. 401 (evidence is relevant if it has "any tendency to make the 4 existence of any fact that is of consequence to the determination of the action more probable or less 5 probable"). Moreover, insofar as they are offered as evidence of publication, the articles are not 6 hearsay because they are not offered to prove the truth of the statements contained therein. See 7

Fed. R. Evid. 801(c). Finally, the Court finds that most of the articles are sufficiently 8 authenticated. Pursuant to Federal Rule of Evidence 902(6), printed materials purporting to be 9 newspapers or periodicals are self-authenticating. Here, however, Plaintiff submits copies of 10 newspapers, as well as print-outs of internet publications. Generally, evidence will be admissible if "sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification." United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) (quoting United States 13 v. Black, 767 F.2d 1334, 1342 (9th Cir. 1985)). In considering internet print-outs, courts have 14 considered the "distinctive characteristics" of the website in determining whether a document is 15 sufficiently authenticated. See, e.g. Premier Nutrition, Inc. v. Organic Food Bar, Inc., No. SACV 16 06-0827 AG (RNBx), 2008 WL 1913163, at *6 (C.D. Cal. Mar. 27, 2008); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1153-54 (C.D. Cal. 2002). In this case, most of the 18 articles submitted by Plaintiff contain sufficient indicia of authenticity, including distinctive 19 newspaper and website designs, dates of publication, page numbers, and web addresses. See 20

Premier Nutrition, Inc., 2008 WL 1913163, at *6 (finding internet print-outs including web address 21 and dates printed to be sufficiently authenticated). Only the internet print-outs of the Daily News 22 articles contained in Exhibits 321-4 and 321-7, which do not contain a web address and lack other 23 identifying characteristics, appear to be insufficiently authenticated. The Court will not consider 24 these two ...

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