The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 28)
This case concerns the circumstances surrounding the May 24, 2008 arrest and detention of Plaintiff Josue Vilchis by Bakersfield Police Department ("BPD") Officers. Plaintiff advances 8 five causes of action under 42 U.S.C. §§ 1983 and 1988: (1) unreasonable and excessive use of force; (2) unlawful arrest without a warrant and without probable cause; (3) deliberate indifference to medical needs; (4) malicious prosecution; and (5) civil conspiracy. Doc. 1. Before the Court for Decision is Defendants City of Bakersfield's (the "City") and BPD Officers Justin Lewis' and Dean Barthelmes' motion for summary judgment on all claims against all named defendants. Doc. 28. Plaintiff opposes summary judgment. Doc. 35. Defendants replied. Doc. 38. The motion was originally set for hearing January 9, 2012, but the hearing was vacated and the matter submitted for decision on the papers. See Doc. 40.
On May 24, 2008, at approximately 1:30 a.m., police received a report of a Hispanic male with a gun in the parking lot of Senor Pepe's, a local dancing establishment in Bakersfield, California. Defendants' Statement of Undisputed Fact ("DSUF") #1; Deposition of Patrick M. Mara at 19; Deposition of Jennifer L. Jones at 16-19. While en route to Senor Pepe's, at approximately 1:45 a.m., Officer Jason Matson's attention was drawn to a truck leaving the parking lot of Senor Pepe's. Deposition of Jason Matson at 18. Matson testified the truck was "driving away at a high rate of speed." Id. The occupants of the vehicle deny that the truck was speeding. See Deposition of Josue A. Vilchis at 25; Deposition of Oscar A. Valdovinos at 34.
Officer Matson conducted a traffic stop of the truck. DSUF #5. Officer Lewis and his partner stopped to assist. DSUF ## 6-7. Shortly thereafter, Officer Barthelmes and his partner also arrived at the scene to assist. DSUF #8.
Officer Lewis approached the stopped vehicle on the passenger side while Officer Matson approached the vehicle from the driver's side. DSUF #8. The windows of the vehicle were tinted, so Officer Lewis instructed the occupants to roll down all of the windows. DSUF #10. Once the windows were rolled down, Officer Lewis observed there were six or seven occupants in the vehicle. DSUF #11. The seating arrangement within the vehicle is disputed. Officer Lewis claims Plaintiff was seated closest to the window in the back passenger seat. DSUF #12. Plaintiff claims he was seated to the inside of another occupant, Ricardo Jimenez, who was seated next to that window. J. Vilchis Depo at 23, 24.
According to the vehicle's occupants, Officer Lewis asked either: "Where are the guns?" "Where are the fucking guns?" or "Where the fuck are the guns?" See J. Vilchis Depo. at 34;
Valdovinos Depo. at 35. Some occupants responded that they had no weapons. S. Vilchis Depo. at 17. Plaintiff responded by saying: "[They] can't do shit; we don't have no guns," and/or "We don't have shit, man. We can't get in trouble if we don't have shit." J. Vilchis Depo. at 36.
At some point during this "conversation," Officer Lewis then instructed the occupants to put their hands where he could see them. DSUF #13. Officer Lewis testified that while most of the occupants of the vehicle complied with this request, Plaintiff did not. DSUF #14. Plaintiff denies this and maintains that he complied with all of Officer Lewis' commands. J. Vilchis Depo. at 37.
According to Plaintiff, Officer Lewis then asked Plaintiff whether he was "being a smart-ass" and instructed Plaintiff to get out of the truck. Id. at 37-40. Plaintiff claims to have complied immediately with this command and that, as he was climbing over Ricardo to exit the vehicle, Officer Lewis pulled him out of the truck. Id. at 40. Once he was outside the vehicle, Plaintiff claims he had his hands in the air or on top of his head. Id. at 42. Officer Lewis handcuffed him and whispered in his ear: "Oh, you think you're a tough guy." Id. As he was being handcuffed, Plaintiff claims Lewis was placing upward pressure on his arms and dragging him away from the truck. Id. at 43-44. Then, after he had been handcuffed, Plaintiff claims he was swung around (away from the truck) and shoved to the ground, while Officer Lewis yelled, "stop resisting." Id. at 45-46.
Officer Lewis' description of Plaintiff's exit from the vehicle is quite different. Lewis claims Plaintiff was not compliant with his initial instruction to place his hands where they could be seen. Deposition of Justin J. Lewis at 34. In response, and to ensure Plaintiff could not grab a weapon, Lewis placed Plaintiff's arm in a twist lock control hold while Plaintiff was still inside the vehicle. Id. at 40-41. Officer Lewis recalls that Plaintiff continued to resist, so Lewis applied more pressure to the hold as he directed Plaintiff out of the Vehicle. Id. at 41. Officer Lewis instructed Plaintiff to "get out of the vehicle," and to "stop resisting." Id. at 42. Once Plaintiff was out of the vehicle, Officer Lewis claims Plaintiff continued to be "uncooperative" and continued to try to pull away. Id. at 42. Officer Lewis could not get Plaintiff into a "standing modified" search position to search him for weapons, so he forced Plaintiff to the ground to try to gain control over him. Id. at 48-50; DSUF #20.
While on the ground, Officer Lewis claims Plaintiff continued to resist. Id. at 53. Officer Lewis then struck Plaintiff two or three times with a closed fist to attempt to overtake Plantiff. Id. at 53. Both Officer Lewis and Barthelmes claim Plaintiff then placed his arms under his body.
Id. at 57; Deposition of John Barthelmes at 28. Officer Barthelmes then stepped in to assist. Barthelmes ordered Plaintiff to remove his hands from underneath his body. Barthelmes Depo.at 29. According to Barthelmes, Plaintiff responded with curses indicating he would not comply.
Id. Officer Barthelmes then attempted to take hold of one of Plaintiff's arms to remove it from underneath his body. Id. Barthelmes attempted to apply a twistlock control hold on that arm, but he was unsuccessful, as it was "still locked up underneath his body." Id. Officer Barthelmes observed Officer Lewis "knee" Plaintiff twice in the side. Id. at 29-30. Eventually, Officers Lewis and Barthelmes were able to handcuff Plaintiff. Id. at 30-31.
Plaintiff denies ever offering any resistance. J. Vilchis Depo at 51. He also particularly denies ever placing his hands under his body, as he maintains his hands were already cuffed behind his back before he was forced to the ground. Id. at 44-45. Plaintiff also testified that immediately upon hitting the ground he felt pressure on his neck, as though someone had placed his knee on the back of his neck. Id. at 49. He recalls being punched with a fist approximately 20 times, kicked with a shod foot approximately 20 times, and hit with a stick in his head area approximately 10 times. Id. at 51-53. He does not recall exactly how long the beating lasted, but testified that the feeling he was being hit with a stick "felt like a lifetime." Id. at 52. In his best estimate, it lasted ten minutes. Id. He cannot recall the exact physical description of the officers who participated, but he believes approximately six officers punched, kicked, and or hit him. Id. at 53. Plaintiff kept his eyes closed most of the time because he was going through "a lot of pain." Id. at 50. Plaintiff also claims to have lost consciousness at some point during the incident. Id. at 54.
During the altercation, Plaintiff's wife, who was also a passenger in the truck, plead to the officers to stop, explaining that her husband is a former marine, is not a gang member, and is disabled. Deposition of Samantha L. Vilchis at 25-28. She tried to jump out of the car, but another officer held the door shut. Id. at 27. Plaintiffs and others attempted to film the incident using their cell phones, but other officers blocked their view using their bodies or flashed their flashlights at the cameras. Id. at 26-27; Ricardo Jimenez Depo. at 37, Rafael Jimenes Depo. at 42.
According to Officers Lewis and Barthelmes, once Plaintiff was secured, Officer Lewis helped Plaintiff up, searched him, and placed him into the rear of a patrol unit. Lewis Depo. at 59. Officer Lewis claims that Plaintiff seemed coherent and alert after the altercation, and, although he had some superficial cuts, he did not appear to have significant injuries requiring medical attention. Id. at 76. Officer Lewis claims he asked Plaintiff if he need medical assistance, but Plaintiff responded he did not. Id. at 75. In contrast, Plaintiff's companions testify that Plaintiff had obvious injuries to the head. See S. Vilches Depo. at 32; Ricardo Jimenez Depo. at 51. Plaintiff denies that Officer Lewis ever asked him if he needed medical assistance.*fn2
After approximately 14 hours in custody, Plaintiff was released from jail. J. Vilches Depo at 61. He then visited the emergency room at Mercy Hospital, where he is informed he suffered blunt head trauma, a mild concussion, and a sprained left elbow. Flores Decl., Ex. 13 (Emergency Room Report). The charges against him were dismissed at his first court appearance. J. Vilchis Depo. at 75. Defendant Lewis and Defendant Barthelmes testified that neither spoke with anyone from the District Attorney's office about the charges filed against Plaintiff. DSUF # 38.
Summary judgment is proper if the movant shows "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. 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 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; "irrelevant" or "unnecessary" factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party would bear the burden of proof on an issue at trial, that party must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by "merely pointing out that there is an absence of evidence" to support the non-moving party's case. Id. When the moving party meets its burden, the non-moving party must demonstrate that there are genuine disputes as to material facts by either:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255. Rather, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Fed. R. Civ. P. 56(c)(2). "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun, 509 F.3d at 984.
A.Claims Against the City of ...