ORDER RE: MOTION FOR
Defendants Officer Jason Hoover and Fresno Police Department have filed a motion for summary judgment. For reasons discussed below, the motion shall be granted.
II. FACTS AND PROCEDURAL BACKGROUND
On February 22, 2011, plaintiff Alex Aguilar ("Plaintiff") filed his first amended complaint against defendants Officer Jason Hoover ("Hoover") and Fresno Police Department ("Department," erroneously sued as Fresno County Police Department) et al., asserting one cause of action for federal civil rights violations pursuant to 42 U.S.C. § 1983. Plaintiff alleged as follows:
"On Thursday evening, July 30, 09 [sic] around 9:30 p.m. my family and I were at a Taco Bell restraunt [sic] on the corner of Shields and First St. in Fresno, CA. We were inside the restraunt [sic] and were the last to leave, since the restraunt [sic] was in the process of closing. When we got into my wife's car, with her driving we observed a black and white police car from the Fresno Police Dept. There was no other traffic movement, and there were two police cars. One got behind our car and turned on its emergency lights. The driver of one police car got out of his car and ask [sic] my wife for her driver lic. [sic] or ID. My wife showed him her driver lic [sic]. I also gave him full name and date of birth."
Plaintiff further alleged:
"Since I had a warrent [sic] for my arrest and had been bittend [sic] by a police dog before, I panicked. So I got out of my wife's car and ran away. About 3 1/2 hours later, around 1:30 a.m. of 7-31-09 I returned to the scene, the Taco Bell rest [sic] was close [sic] to turn myself in before I reached the restraunt [sic] I observed a K-9 police car parked in the alley with no lights there were six police officers did not ID themselfs [sic] and K-9 dog was running loose got on the ground and ID myself the dog, a big K-9 German Shepard [sic], passed me and then it got a signal from the K-9 uniform officer the officer got upset at the K-9 couse [sic] the dog ignored me the animal then tried to bite me so I turn my face tors [sic] the other way put hands on my face in order to prevent it from biting my left cheek."
Plaintiff further alleged:
"The dog then bit me on the top of my left shoulder, then on the back shoulder and finally under my armpit. I kept yelling at the p. [sic] officers, asking why they were violintng [sic] my rights when I had follow [sic] all of their instructions and procedures. An ambulance finally arrived and the atten [sic] placed me on a roller bed. They took me to the Community Hospital. I received approxima [sic] 16 stitches, 10 in the under my arm [sic] and the rest on my back shoulders now I'm scare [sic] for life. This is the second time that police officers have ordered [sic] their K-9 dogs to bite me, even though I followed all of their instructions. [¶] Since this occurred [sic], my wounds are still open and believe that they are infected . . . . I am all scarred for life from top to bottom. I can't no longer where [sic] shorts couse [sic] my leg is all scarred for life from the previous and the present dog bites."
On November 23, 2011, Hoover and Department filed their motion for summary judgment, contending the undisputed facts show that Hoover used objectively reasonable force against Plaintiff and, in any case, is entitled to qualified immunity. Plaintiff did not file a written opposition.
"A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment 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(a). The moving party bears the initial burden 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact (Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993)), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).
A. Section 1983 claim against Hoover -- Plaintiff's first and only cause of action, asserted against both defendants, is for violation of federal civil rights pursuant to 42 U.S.C. § 1983. Section 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983. "To succeed on a § 1983 claim, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a federal constitutional or statutory right." Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citing Tatum v. City and County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006)). Where an officer has asserted, as here, a defense of qualified immunity, courts evaluating a section 1983 claim "generally proceed in a two-part analysis. The 'threshold question' is '[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 v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (abrogated in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009)). If the Constitution was not violated, that is the end of the inquiry. If there was a violation . . . , [courts] proceed to the question of qualified immunity." Mattos v. Agarano, 590 F.3d 1082, 1086 (9th Cir. 2010). The gravamen of Plaintiff's claim is that in arresting Plaintiff, Hoover used ...