ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Doc. # 28
This is a civil rights action for damages by pro se plaintiff Billy Phelps ("Plaintiff") against defendant Fresno Police Officer Christian Ramos ("Defendant") arising from the shooting of Plaintiff by Defendant during the arrest of the former by the latter. Plaintiff's Second Amended Complaint ("SAC") alleges two claims for relief. Although the claims are somewhat confusingly and incompletely set forth, the court presumes the claims allege violation of Plaintiff's rights under the Fourth amendment and under the due process and equal protection provisions of the Fourteenth Amendment, respectively. The court also presumes both claims for relief are alleged pursuant to 42 U.S.C. § 1983. In the instant motion, Defendant moves for summary judgment as to each of Plaintiff's claims for relief. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff continues to represent himself in this action. The currently operative SAC was filed on May 3, 2010 following the dismissal of the original complaint and the first amended complaint. Plaintiff's SAC continues to suffer from some ambiguity as to the legal basis for the claims being alleged, but based on the court's prior decisions denying various of Plaintiff's prior claims under the Eighth and Fourteenth Amendments with prejudice, the court finds it may infer the nature of Plaintiff's remaining claims as set forth in the SAC. The court finds Plaintiff's First claim for relief alleges unreasonable seizure under the Fourth Amendment in violation of 42 U.S.C. § 1983. The court finds Plaintiff's second claim for relief alleges malicious prosecution in violation of the procedural due process and equal protection provisions of the Fourteenth Amendment. Plaintiff's second claim for relief is also asserted pursuant to 42 U.S.C. § 1983.
Defendant's instant motion for summary judgment was filed on February 8, 2010. As of this writing, Plaintiff has filed no response at all to Defendant's motion. A review of Defendant's moving papers indicates the motion for summary judgment and all related documents were served on Plaintiff at both his prior prison address and at the most recent address on file. The court therefore finds that service of Defendant's moving papers on Plaintiff was proper.
Based on Plaintiff's non-opposition to Defendant's statement of undisputed material facts, the court accepts the following facts alleged by Defendant as true for purposes of this discussion:
At approximately 11:00 p.m. on the evening of November 18, 2008, Fresno Police Officer Campos received a call reporting two male African-American subjects dealing narcotics in the area of Glenn and Belmont. Officer Campos made an undercover telephone call with a person identified by the informant caller as "Ernest." Officer Campos arranged to purchase cocaine from Ernest in front of a mini-market at Effie and Belmont. A number of officers converged on the site. One African-American male, later identified as "Ernest" remained in the car and the other, later identified as Plaintiff, exited the car. Plaintiff was ordered to stop by uniformed police officers but instead ran away.
As he ran away, Plaintiff was first shot with non-lethal bean bag rounds. Plaintiff continued running across a street and into the path of an oncoming vehicle. Plaintiff was struck by the vehicle and after rolling off the vehicle Plaintiff reached into a pocket with his right hand and pulled a bag containing cocaine out and threw the bag away with his left hand. At the time Plaintiff collided with the vehicle, Defendant clearly saw a handgun in Plaintiff's right hand. Officers yelled at Plaintiff to "Stop. Drop your gun!" When Plaintiff did not drop the gun Defendant fired a single shot that struck Plaintiff in the back. Plaintiff thereafter dropped the loaded handgun and was taken into custody without further resistance.*fn1 Medical aid for the gunshot wound was provided.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party 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 (1986). Although the party moving for summary judgment always has the initial responsibility of informing the court of the basis for its motion, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). A party that does not have the ultimate burden of persuasion at trial -- usually but not always the defendant -- "has both the initial burden of production and the ultimate burden of persuasion on the motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's ...