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Ernest Raymond Rodriguez v. City of Long Beach


August 25, 2011


The opinion of the court was delivered by: David O. Carter United States District Judge


Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendants City of Long Beach, Long Beach Police Department*fn1 , and Jonathan A. Steinhauser ("Defendants") in the above-captioned case (dkt. 21). The Court has considered the moving, opposing, and replying papers, as well as oral arguments, and DENIES the Motion in full.

I. Background

The majority of the material facts in this case are heavily disputed*fn2 and many are simply absent from the evidence presented to the Court by both parties. The deposition transcripts provided are incomplete, and the declarations narrow in scope. The Court summarizes the facts below but addresses specific facts as well as gaps in the facts when relevant throughout this Order.

On the evening of either May 27, 2009 or May 28, 2009*fn3 , Plaintiff Ernest Rodriguez ("Plaintiff" or "Rodriguez") went to BJ's Pizzeria in Huntington Beach with his former girlfriend, Bridgette Molina ("Molina"), to celebrate her college graduation and to watch a basketball game. Deposition of Plaintiff Ernest Rodriguez ("Rodriguez Dep."), 57-58. Over the approximately three hours they were there, Rodriguez consumed some appetizers and two beers. Molina and Rodriguez then traveled to two other bars, during which time Rodriguez consumed three more drinks and a mixed beverage. Id. at 65-70.

At the last bar, Molina began to tease Rodriguez about a woman who had talked to him briefly at the bar while she was in the restroom. Id. at 70-75. Rodriguez was "frustrated" with Molina's teasing because the couple's relationship had ended, and he "didn't want to make it seem as if [he] was interested in another female at that time." Id. at 75-77. On the way back to Molina's car, Rodriguez punched in a window at Sweet Jill's Bakery, shattering the glass. Id. at 79. After he crossed the street, four bouncers from Legend's bar approached him and told him they had called the police. Id. at 83-84. According to Rodriguez's testimony, he promptly informed the bouncers that he would take full responsibility for the window and would cooperate with them, but that they should not try to put their hands on him. Id. at 83. Rodriguez and the bouncers then walked for a few minutes to the corner of Covina*fn4 and 2nd Street and waited one to two minutes for the police to arrive. Id. at 94-96. During this time, Rodriguez insists that he remained calm, though his hand was bleeding and he felt shocked by the events that had occurred. Id. at 95. At oral arguments, Defendants suggested that evidence shows that Rodriguez was not calm and was shouting obscenities, but did not point the Court to the evidentiary basis for this assertion.*fn5

Defendant Officer Jonathan Steinhauser ("Steinhauser")arrived at the scene a few minutes later and parked his car approximately one-foot from the curb.Id. at 99. He intended to arrest Rodriguez once he determined if he was the one who had broken the window, but he was determined to handcuff Rodriguez prior to making that determination so that he could "take control of him." Deposition of Jonathan A. Steinhauser ("Steinhauser Dep."), 31-32. Steinhauser therefore asked Rodriguez to approach the police car, and Rodriguez complied without incident. Id. at 28. Steinhauser then ordered Rodriguez, who outsized him by about one-hundred pounds, to sit on the curb. Rodriguez Dep., 104; Declaration of Jonathan A. Steinhauser ("Steinhauser Decl."), ¶ 3. Rodriguez refused, believing the police car was parked too close to the curb to sit, though he admits that he probably could have sat down. Rodriguez Dep., 108. Steinhauser repeated his order several times--the number is disputed--and Rodriguez continued to refuse to sit. Id. at 112. At no time did Steinhauser believe that Rodriguez was intoxicated. Steinhauser Dep., 96-98.

After the third order, Steinhauser informed Rodriguez that he would strike him with his baton if he refused to sit and that it would hurt. Steinhauser Decl., ¶ 4; Rodriguez Dep., 112-113. The number of times he warned Rodriguez is disputed. See Plaintiff's Separate Statement of Genuine Disputes in Opposition to Defendants' Motion ("SGD"), ¶ 12. Steinhauser advised Rodriguez that he was under arrest, and that he must sit. During this time, Molina pleaded with Rodriguez to sit down and to cooperate. Rodriguez Dep., 113-114. Defendants have suggested through their deposition questions that other witnesses reported that Rodriguez used profanity towards both Steinhauser and Molina at this time, though Rodriguez testified that he does not recall doing so. Id. at 113-115.

When he refused to comply, Steinhauser put out a "Code-3" call for assistance and then moved toward Rodriguez and began striking him with his baton.Steinhauser Decl, ¶ 4; Rodriguez Dep., 116-17. Steinhauser struck Rodriguez on the side of his left leg, and continued to strike him repeatedly, making contact. Rodriguez Dep., 117-20. During this time, Rodriguez requested that Steinhauser "calm down." Id. at 121. Rodriguez testified that he blocked the fourth baton strike, and briefly grabbed the baton for approximately one second. 122-23. Steinhauser then pulled the baton back, and Rodriguez immediately let go of the baton without a struggle. Id. at 125.

As the parties discussed at oral arguments, there is conflicting evidence regarding whether Steinhauser regained control of the baton or whether Rodriguez tossed the baton away from him. Compare, id. at 122-23 and Deposition of David Irizarry ("D. Irizarry Dep."), 20-23. Thus, it is unclear whether Rodriguez ever held the baton in a threatening way against Steinhauser. Rodriguez claims that after he let go of the baton, Steinhauser stumbled backwards a few steps. Rodriguez Dep., 123-24. He then began to shoot Rodriguez several times and Rodriguez immediately fell down into a gutter. D. Irizarry Dep., 23.At no point did Steinhauser warn Rodriguez of his intent to shoot.

Though neither side submitted any evidence as to the extent of Rodriguez's injuries, at oral arguments, both parties represented that Rodriguez was shot three times, and that the bullets left nine separate bullet holes in his flesh.

II. Legal Standard

Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1992); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).

Once the moving party meets its burden, the opposing party must set out specific facts showing a genuine issue for trial; merely relying on allegations or denials in its own pleading is insufficient. See Anderson, 477 U.S. at 248-49. A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for the dispute. Id. The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252.

III. Discussion

Defendants raise four arguments in support of their Motion for Summary Judgment: (1) that Plaintiffs' claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994); (2) that Defendant Steinhauser is entitled to qualified immunity; (3) that Plaintiff's state law claims are derivative of his § 1983 claim and are therefore barred under Heck as well; and (4) that because there is no individual liability under Heck, there can be no municipal liability. Each of these arguments fails. The Court addresses each in turn.

A. Application of Heck v. Humphrey

Under Heck v. Humphrey, a plaintiff cannot succeed in bringing a § 1983 claim where success on the claim would call into question an underlying conviction. See 512 U.S.Defendants argue that Plaintiff's § 1983 claim for excessive force would necessarily challenge the accuracy of his conviction for resisting or deterring an officer. Defendants, however, mistakenly stretch Heck beyond its limits.

In Heck, the petitioner had been convicted of voluntary manslaughter for the killing of his wife and served his sentence in state court. Id. at 478. While in prison, he brought a § 1983 action against county prosecutors and a state police investigator, alleging that they had violated his constitutional rights by, inter alia, destroying evidence in the underlying investigation leading to his conviction. Id at 479. In denying the petitioner's claim, the Court established that a claim for damages under § 1983 that challenges the lawfulness of a conviction or sentence is barred. Id. at 486-87. The Court also held, however, that "if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed . . . ." Id. at 487 (emphasis in original). In so doing, the Court acknowledges the narrow nature of its holding. See id. at 488.

It is undisputed that Plaintiff Rodriguez pled nolo contendere to a violation of California Penal Code § 69. The Code criminalizes the conduct of any person who acts "by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty . . . ." Cal. Pen. Code. § 69. Defendants argue that Plaintiff's § 1983 claim for excessive force would necessarily challenge the adequacy of Plaintiff's conviction under the statute because the statute requires an officer to have been engaged in the lawful performance of his duties. Motion, 8 (citing People v. Wilkins, 14 Cal. App. 4th 761, 776 (1993)). Because using excessive force is not "lawful," see People v. Olguin, 119 Cal. App. 3d 39, 45 (1981), Defendants contend that Plaintiff's claim for excessive force is barred because it would invalidate his underlying conviction for resisting or deterring an officer's performance of his duties. In other words, Defendants believe that a finding that Steinhauser used excessive force would necessarily mean he was not acting lawfully in performing his duties, and therefore would challenge the validity of Plaintiff's conviction for resisting or deterring an officer in duty.

Defendants' reliance on Heck is misplaced. See Campos v. City of Merced, 709 F. Supp. 2d 944, 961 (E.D. Cal. 2010) ("Ordinarily, Heck would not bar a court from hearing a claim for excessive force because such claims do not ordinarily impugn the underlying conviction."). To be sure, Plaintiff pled nolo contendere to a violation of Code § 69. That plea, however, could have been based on any one of several acts or omissions of Rodriguez in his interaction with Steinhauser; the statute, by its very language, criminalizes both resisting and deterring or preventing an officer from performing his duties. See Cal. Pen. Code § 69. Yet nothing in the record or in the plea itself addresses what specific conduct of Rodriguez formed the basis of his conviction under Penal Code § 69. See Tyler R. Dowdall Declaration ("Dowdall Decl."), Ex. 12.*fn6 Neither party has been able to establish whether he was convicted for deterring or for resisting Steinhauser in the performance of his duties, nor have they shown what specific conduct constituted the offense.

It is undoubtedly Defendants' burden to demonstrate that the underlying conviction would be invalidated should Plaintiff succeed on his § 1983 claim; to do so they must point to the exact conduct for which Plaintiff was convicted under Penal Code § 69. See Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001). Plaintiff insists that he understood the basis of his nolo contendere plea to have been his refusal to comply with Steinhauser's order to sit on the curb. See Rodriguez Decl. ¶ 2. Defendants undermine the significance of Plaintiff's understanding, arguing that because Penal Code § 69 criminalizes resisting or deterring an officer through threats or violence, the mere refusal to sit on the curb could not possibly have constituted the basis for Plaintiff's conviction. Reply, 5. This argument is unavailing; there are genuine issues of material fact as to Plaintiff's verbal expressions during the time he refused to sit on the curb. Accordingly, a reasonable jury may find that Plaintiff's refusal to sit was threatening when placed in context and coupled with some of the profanity Defendants suggest he used. Therefore, Plaintiff's refusal to sit could have constituted the basis of his conviction under Penal Code § 69.

Plaintiff's Opposition also suggests another possibility--indeed, the very possibility Defendants put forth in an effort to support their Motion--that Plaintiff misunderstood the significance of his plea, and that the conviction was actually based upon his resisting of Steinhauser's baton blows. See Opp'n, 7; Reply, 5. Even if the relevant conduct was, in fact, Rodriguez's grabbing of the baton, Steinhauser's use of his gun still occurred subsequent to the baton usage. Like at the time of his refusal to sit, there have been suggestions that Plaintiff was shouting profanities that may have qualified as "threatening" and thereby constituted the basis for his conviction under Penal Code 69. So long as the conduct leading to the conviction occurred prior to the excessive force, Plaintiff's § 1983 claim does not challenge the validity of his conviction. In other words, it is possible that Plaintiff's conviction was based on Plaintiff's blocking of the baton strike--during which Steinhauser may have been acting lawfully. Yet the evidence indicates that Steinhauser's decision to shoot Plaintiff came after Plaintiff had lost control of the baton; thus Steinhauser's excessive force was subsequent to Plaintiff's violation under Penal Code § 69.

Viewing the situation abstractly reveals the incongruity of Defendant's argument. It is certainly not difficult to imagine a scenario in which a person resists arrest and an officer responds using lawful force, but subsequently crosses the line into excessive force. Defendants have not met their burden of distinguishing the facts at issue in this case from such a hypothetical scenario. For the underlying conviction to remain valid, Steinhauser need only have been "acting lawfully in the performance of his duties 'at the time the offense against him was committed'"-- the moment at which Plaintiff committed the conduct leading to his conviction under Penal Code § 69. Sanford, 258 F.3d at 1120. But once Steinhauser used excessive force subsequent to the time Plaintiff either resisted or deterred him with force or threats, Plaintiff has a cognizable claim under § 1983. See id.; see also Smith, 394 F.3d at 698 ("Under Heck, [Plaintiff] would be allowed to bring a § 1983 action, however, if the use of excessive force occurred subsequent to the conduct on which his conviction was based.").

Thus, the lack of clarity over the conduct on which the conviction was based precludes a bar under Heck. Indeed, in similar cases, courts have refused to find § 1983 claims barred by Heck when it is unclear on what conduct a conviction was based, and therefore whether a § 1983 claim would invalidate that conviction. See, e.g., Smith v. City of Hemet, 394 F.3d 689, 697-98 (9th Cir. 2005) (holding that because "[a]t the very least . . . the record does not reflect which acts underlay [plaintiff's] plea . . . his § 1983 action is not necessarily inconsistent with his conviction" and therefore "Heck v. Humphrey is not a bar.")*fn7 ; Sanford, 258 F.3d at 1119. Likewise, this Court finds that the ambiguity as to the factual basis for Plaintiff's conviction precludes a Heck bar. It is quite plausible that Plaintiff's § 1983 claim for excessive force arose subsequent to his resisting or deterrence of Steinhauser's lawful duties.

Defendants refute this analysis by arguing that there is no separation between the different acts of Plaintiff and the the entire encounter was one, united event, rather than separate, discrete events. There are genuine issues of material fact as to whether the facts at issue occurred as part of one unified event or whether they constituted several, separate incidents. Though Plaintiff, as described above, describes the facts as discrete incidents, Steinhauser testified that he arrived at the scene with the intent to arrest Rodriguez. See Steinhauser Dep. Thus, he could lawfully use some force; Plaintiff does not appear to dispute this. Assuming that the encounter was one concise event during that warranted Steinhauser's use of force, Heck still would not bar Plaintiff's claim if the type of force used in response to that event was unreasonable.In Yount v. City of Sacramento, the California Supreme Court applied Heck and found that although the plaintiff's § 1983 claims were barred to the extent that they relied upon a theory that the arresting officer could not use force at all, Heck did not bar § 1983 claims to the extent that they challenged the officer's use of deadly force. 43 Cal. 4th 885, 887 (2008). In other words, though the officer may have been lawfully entitled to use force, his use of deadly force was unreasonable. Accordingly, success on a § 1983 claim for excessive force based on the use of that deadly force would not invalidate a conviction for resisting arrest. See id.

Defendants in this case attempt to undermine Yount by arguing that it is merely a state court decisionthat has not been adopted by the Ninth Circuit. See Defendants' Reply, 3. As a threshold matter, this Court is "of course, bound by the California Supreme Court's interpretation of California law." Hooper v. County of San Diego, 629 F.3d 1127, 1132 (9th Cir. 2011) (interpreting the Yount decision). Moreover, the Ninth Circuit, as recently as this year, has followed the California Supreme Court's findings in Yount. Id.

Though there is a lack of clarity over the facts in this case, the Court must make factual inferences in the light most favorable to Plaintiff. See Diebold, Inc., 369 U.S. at 655. Plaintiff asserts that his conviction stemmed only from his refusal to sit on the curb pursuant to Steinhauser's orders--which occurred prior to Steinhauser's use of the baton and, ultimately, of his gun. Rodriguez Decl. ¶ 3. Even if, as the Court discussed above, the conviction stemmed from his resisting of the baton strike, it is undisputed that Plaintiff no longer had the baton in his hands at the time that Steinhauser shot him. Rodriguez Dep., 123-24; see also Defendants' SUM, ¶ 35 (not disputing Plaintiff's claim that the baton was dropped at the time of the shooting). There is also no evidence that Plaintiff adopted any fighting stance with Steinhauser; multiple witnesses reported that Plaintiff never hit, attacked, or advanced against Steinhauser. See, e.g., D. Irizarry Dep., 22-26. This suggests that Steinhauser's use of deadly force may have been excessive, even if his use of a lesser force was appropriate.

Indeed, the Court in Sanford, in finding a plaintiff's claim was not barred as a result of her underlying conviction, specifically emphasized that if the officer had shot and wounded the plaintiff instead of just punching her, "there would be no doubt that she could sue him for violation of her civil rights." Id. That is precisely what is alleged to have happened here.

Plaintiff insists that the conduct leading to his conviction arose prior to the use of deadly force that prompted his § 1983 excessive force claim. Accordingly, because it is not clear that Plaintiff's success on his § 1983 claim would imply that his conviction under Penal Code § 69 is invalid, his claim is not barred by Heck. See Smith, 394 F.3d at 696. Summary judgment as to Plaintiff's § 1983 claim is therefore DENIED.

B. Qualified Immunity

Defendants contend that Steinhauser is entitled to qualified immunity and therefore is immune from suit. A police officer is entitled to qualified immunity from suit under 42 U.S.C. § 1983 where an objectively reasonable officer would not have known that his conduct was unconstitutional under the circumstances. Saucier v. Katz, 533 U.S. 194, 202 (2001). "Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau v. Hagan, 543 U.S. 194, 198 (2004).

The Supreme Court has set forth a two-part analysis for considering the issue of qualified immunity. A district court must ask, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201. The court must also determine "whether the right was clearly established." Id. A right is "clearly established" if, "in light of the specific context of the case," it would be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-02. "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202. To be sure, the right alleged to have been violated must be clearly established in a somewhat "particularized" way to the facts and circumstances Steinhauser confronted. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Yet it is not true that qualified immunity is presumed "unless the very action is question has previously been held unlawful"--rather, qualified immunity will be found if "in the light of pre-existing law the unlawfulness [is] apparent." Id.

Courts are free to analyze the two prongs in either order. See Pearson v. Callahan, 555 U.S. 223 (2009) ("The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." ). The Court in Pearson held that the Saucier approach, under which a court must first ask if there was a constitutional right violated before turning to whether that right was clearly established, is not mandatory, though it is "often appropriate" and "beneficial." Id. at 236.

Plaintiff's Complaint appears to allege several different constitutional violations, including, inter alia, excessive force under the Fourth Amendment, see Complaint, ¶ 39, and "violation of his constitutional rights under the Fourth, Eighth and Fourteenth Amendments to the United States Constitution to be free from unreasonable search and seizure of his person and summary, cruel and unusual punishment," id. at ¶ 77. Defendants' assertion of qualified immunity only addresses the excessive force claim. The Court therefore need only look to whether Steinhauser violated Plaintiff's constitutional rights through use of excessive force, though the conduct giving rise to other constitutional claims asserted by Plaintiff is presumed to be the same as that giving rise to the excessive force claim.

An excessive force claim is adjudicated under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388 (1989). In evaluating whether officers used excessive force, the court must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Id. at 396 (internal quotation marks omitted). Among the specific facts a court must consider are "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight." Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). Critically, "force must be necessary to be reasonable." Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010). This is especially true when the nature of the force used is deadly. "The intrusiveness of a seizure by means of deadly force is unmatched." Garner, 471 U.S. at 9. For that reason, when a suspect does not threaten the officer or others, "the harm resulting from failing to apprehend him does not justify the use of deadly force . . . ." Id. at 11. Instead, the use of deadly force is justified only where a reasonable officer would have had probable cause to believe that there was a threat of serious injury to himself or others. See Smith, 394 F.3d at 704.

Given the large and material gaps in the evidentiary record, which the Court has referenced repeatedly throughout this Order, the Court cannot determine what facts to consider in conducting the qualified immunity analysis. Plaintiff's and Steinhauser's declarations are merely about one-page each, and omit many of the critical facts involving the encounter with the baton, as well as the shooting itself. As a result, the Court cannot undergo either step of the Pearson-Saucier analysis, as it is unclear what facts it should even apply. For example, there are significant gaps in the facts and unclear evidence as to when and whether Plaintiff blocked the fourth baton strike, threw the baton, grabbed the baton, or touched it in a way that suggested he might use force against Steinhauser. These details, are, of course, critical, since courts have at times found deadly force justifiable when a suspect threatens an officer with a dangerous weapon. Smith, 394 F.3d at 704 (citing cases). In this case, witness testimony suggests, at the very least, that Plaintiff's contact with the baton was not overtly threatening to Steinhauser*fn8 , as many witnesses recounted that Plaintiff did not swing the baton towards Steinhauser. See, e.g., D. Irizarry Dep. Nonetheless, there are inconsistent accounts of what exactly Rodriguez did with the baton in those brief moments during which he had control of it.*fn9 As a result, the Court cannot at this stage, determine whether a constitutional violation occurred. More importantly, the Court cannot evaluate whether any such constitutional right was clearly established; it cannot apply "particularized" case-law when it is unclear what facts are to be considered. See Anderson, 483 U.S. at 640.

The many gaps in the facts, as well as the need for credibility determinations to be made in construing the facts, make evaluating the reasonableness of Steinhauser's conduct impossible at this pre-trial stage. See Act Up!Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) ("If a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial."); see also Menjivar v. City of Los Angeles, 2007 WL 4662062, at *7 (C.D. Cal. 2007). Qualified immunity for Steinhauser is therefore DENIED.

C. State Law Claims

Defendants argue that because Heck bars Plaintiff's § 1983 claim for excessive force, his state law claims of battery and negligence based on the same conduct are precluded as well.*fn10

Relying on the same logic put forward as to the purported Heck bar, they contend that because Steinhauser was acting lawfully during the arrest, his force must have been reasonable, and therefore cannot serve as the basis for negligence or battery state law claims, which rely upon the same "reasonableness" standard as federal civil rights claims for excessive force. See Motion, 11 (citing Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1102 n.6 (2004)). Because the Court has not found Heck to bar Plaintiff's claim, and has not found that Steinhauser's conduct was reasonable, Plaintiff's state law claims survive as well.

Summary judgment as to Plaintiff's state law claims is therefore DENIED.

D. Municipal Liability

Plaintiff's claims against the City of Long Beach rest on the principle of municipal liability under Monell v. Dep't of Soc. Services, 436 U.S. 658 (1978). To state a claim under 42 U.S.C. § 1983, Plaintiffs must allege that a Constitutional right was violated and that the alleged violation was committed by a person acting under color of state law. America Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999); Long v. County of Los Angeles, 442 F.3d 1178 (9th Cir. 2006); Gritchen v. Collier, 254 F.3d 807 (9th Cir. 2001). Monell allows municipalities and local government entities to qualify as "persons" for § 1983 purposes. Monell, 436 U.S. In order to impose liability on a local government entity under Monell, a plaintiff must prove that the execution of a policy, custom, or practice by the municipality resulted in the deprivation of their constitutional rights. Monell , 436 U.S. at 690-91.

Defendants argue that because Steinhauser is not individually liable, there can be no liability for the city, even if it authorized the use of excessive force. Motion, 13. In other words, Defendants rest their entire argument for summary judgment as to municipal liability on the assumption that the Court will have found no individual liability. As the Court has described above, it has not done so. Accordingly, summary judgment as to Monell liability is DENIED.

IV. Disposition

For the reasons stated above, Defendants' Motion for Summary Judgment is DENIED.


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