AND ORDER ON
DEFENDANTS' MOTION FOR
(Doc. No. 75)
This civil rights action arises from the detention and arrest of Plaintiff Deon Wade ("Plaintiff" or "Wade") by Fresno Police Officers Frederick*fn1 Williams ("Williams"), Bernard Finley ("Finley"), David Wilkin ("Wilkin"), and Haywood Irving ("Irving") (collectively, "Defendants") for drinking in public, providing false information to a police officer to prevent arrest, resisting arrest, and battery on a peace officer. Plaintiff, a prisoner proceeding pro se and in forma pauperis, brought suit in this Court under 42 U.S.C. § 1983 alleging he was unlawfully arrested and subjected to excessive force. On June 8, 2010, the Court dismissed Plaintiff's state law and Eighth Amendment claims. See Court's Docket Doc. No. 40. The Court also dismissed the Fresno Police Department from the action and granted Plaintiff leave to amend his complaint to add the City of Fresno as a Defendant. See id. On August 31, 2010, Plaintiff gave notice that he would not be amending his complaint and wished to proceed against the remaining officer Defendants. See id. at Doc. No. 47. The only remaining causes of action are Plaintiff's allegations of excessive force under the Fourth and Fourteenth Amendments. Defendants now move for summary judgment and/or qualified immunity. For the reasons that follow, Defendants' motion will be denied in part and granted in part.
Defendants object to certain documentary and testimonial evidence presented by Plaintiff in support of his opposition to the summary judgment motion.*fn2 The Court will address each piece of evidence in turn.
1. Jones and White Declarations
Defendants argue that the Declaration of Lamont White, along with the Declaration of Camilla/Camella Jones,*fn3 are inadmissible because Plaintiff did not disclose them during discovery. During Plaintiff's deposition on September 17, 2010, he testified that he no longer had a friendship with Lamont White, no longer communicated with Mr. White, and did not know where Mr. White resided. See Pl.'s Depo. at 76:9-15. Plaintiff was also asked if he knew of any witnesses who saw what happened. Id. at 98:19-20. Plaintiff identified only "Shamika" and "a little kid" named "Augie." Id. at 98:21, 99:13-21. Defendants also propounded special interrogatories requesting that Plaintiff identify all documents and individuals with knowledge of the facts supporting his contentions. See Suppl. Camarena Decl., Ex. I. On November 30, 2010, Plaintiff responded to each special interrogatory as follows: "After a reasonable search and diligent inquiry, Responding Party does not have information responsive to this request." Nevertheless, Plaintiff attached to his opposition brief the White Declaration, dated October 27, 2010, and the Jones Declaration, dated December 7, 2010. See Doc. No. 78, Exs. A, G. Federal Rule of Civil Procedure 26(a) requires initial witness disclosures, and Rule 26(e) requires that a party supplement his initial disclosures and discovery responses if he learns that in some material respect the disclosure or response is incomplete or incorrect. Federal Rule of Civil Procedure 37(c)(1) provides: "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless."
The Court directed Plaintiff to provide additional briefing explaining his failure to disclose the White and Jones Declarations and witness contact information to the defense. See Court's Docket, Doc. No. 83. Plaintiff responded that he received the declarations in a letter from a family member sometime in May 2011. He explained that the letter requested that the addresses for White and Jones be withheld "due to fear of retaliation by the Fresno Police Department." This does not provide substantial justification for failing to disclose at least the declarations after he purportedly received them in May 2011 and prior to using them as evidence to support his opposition to the instant motion. The obligation to supplement discovery responses pursuant to Rule 26(e) is continuing in nature. Although Defendants learned through other discovery that Mr. White and Ms. Jones were potential witnesses, their efforts to locate Mr. White and Ms. Jones were unsuccessful. Defendants further contend they were unaware of the allegations in the White and Jones declarations until Plaintiff filed his opposition to the instant motion. The failure to disclose the declarations was not harmless because Defendants were deprived of the opportunity to cross examine Mr. White or Ms. Jones in deposition, or to otherwise challenge the allegations set forth in the declarations. Thus, pursuant to Rule 37(c)(1), the Court will not consider the White or Jones Declarations in deciding Defendants' motion for summary judgment.
In addition to the failure to disclose, Defendants argue the White and Jones declarations are inadmissible and cannot be considered by the Court in ruling on a summary judgment motion. See Fed. R. Civ. P. 56(c); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Defendants contend that Plaintiff has failed to authenticate the declarations. In the Ninth Circuit, "[i]t is well-settled that unauthenticated documents cannot be considered on a motion for summary judgment." Canada v. Blain's Helicopters, 831 F.2d 920, 925 (9th Cir. 1987) (citing Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976)); see also Orr, 285 F.3d at 773; Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene, 854 F.2d at 1182.
Authentication is a "condition precedent to admissibility," and this condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). A proper foundation can be established through an affidavit made on personal knowledge that meets the requirements of Federal Rule of Civil Procedure 56(e). See Orr, 285 F.3d at 774; Fed. R. Civ. P. 56(e). Alternatively, documentary evidence can be authenticated under Federal Rule of Evidence 901(b)(1) by a witness who wrote it, signed it, or saw others do so; or as a self-authenticating document without extrinsic evidence under Federal Rule of Evidence 902. See id. at 774; Fed. R. Evid. 901(b); Fed. R. Evid. 902.
Here, Plaintiff asserts he received the White and Jones Declarations in a May 2011 letter from an unidentified family member. Plaintiff did not submit the letter as evidence. The White Declaration is typewritten and purports to be signed by Lamont White under penalty of perjury on October 27, 2010. The Jones Declaration is handwritten and purports to be made by Camilla Jones under penalty of perjury on December 7, 2010. The declarations are neither notarized nor witnessed, and they bear no indicia of where they were signed. Plaintiff has not laid an adequate foundation to authenticate the White and Jones declarations, and they cannot be relied upon to defeat a motion for summary judgment.*fn4
In sum, the White and Jones Declarations submitted in support of Plaintiff's opposition to the motion for summary judgment were not properly disclosed to the defense, and are inadmissible because they lack foundation. The Court will not consider the declarations on summary judgment.
2. Criminal Case Documents
Plaintiff has also attached to his opposition two documents it appears were filed in the Superior Court of California in the criminal case arising out of the underlying events in this case.The first purports to be the October 31, 2008 Declaration of Attorney Jane Boulger in support of a motion to suppress evidence. See Court's Docket, Doc. No. 78, Ex. B. The second purports to be a motion to suppress evidence filed by Ms. Boulger on behalf of Mr. Wade on October 31, 2008. See id., Ex. C. Defendants object to the use of these documents on the grounds that they are hearsay, draw legal conclusions, do not take all the facts into consideration, and contain biased opinions. To the extent Plaintiff is relying on these documents for the truth of the matters asserted therein, the Court agrees those documents are inadmissible hearsay. See Fed. R. Evid. 801(c); Fed. R. Evid. 802. Plaintiff has not laid a foundation for any exception to the hearsay rule. See Fed. R. Evid. 804. The Court will therefore not consider the two criminal case documents in deciding the motion for summary judgment.
Defendants object to a copy of a toxicology report attached to Plaintiff's opposition. See Court's Docket, Doc. No. 78, Ex. I. The report appears to be from "Central Valley Toxicology, Inc" and was signed by "Alan D. Barbour, Analyst" on April 29, 2008. It appears to contain the results of an "Ethyl Alcohol & Abuse Screen" requested by the Fresno City Police Department for a blood sample labeled "Wave,*fn5 Dion, Fresno PD, 08-34932 4-25-08; 2147; M Jaeckel." The "Results" section of the report states: "Blood Ethyl Alcohol = Negative; Ethyl Alcohol analysis performed and recorded on 04/28/28; Blood Abuse Screen: Cocaine, Opiates, PCP & Methamphetamine by Immunoassay = Negative; Note: Additional testing available upon request." Defendants argue the toxicology report lacks foundation, calls for hearsay, and calls for expert medical opinion.
As discussed above, only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment. See Beyene, 854 F.2d at 1182.Authentication is a "condition precedent to admissibility," and this condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). A proper foundation can be established through an affidavit made on personal knowledge that meets the requirements of Federal Rule of Civil Procedure 56(e). See Orr, 285 F.3d at 774; Fed.
R. Civ. P. 56(e). Alternatively, documentary evidence can be authenticated under Federal Rule of Evidence 901(b)(1) by a witness who wrote it, signed it, or saw others do so; or as a self-authenticating document without extrinsic evidence under Federal Rule of Evidence 902. See id. at 774; Fed. R. Evid. 901(b); Fed. R. Evid. 902.
In an unpublished opinion, the Ninth Circuit held that a district court erred by admitting a toxicology report without proof that the blood sample was drawn from the defendant through admissible evidence regarding the person(s) who actually drew and transmitted the blood to the lab. See Taylor v. City and County of San Francisco,166 F.3d 344, 1999 WL 23141, *3 (9th Cir. 1999). Here, Plaintiff has presented no evidence tending to show that the report is what he claims, for example, through an affidavit of the person who signed the report, or the person who drew his blood. Thus, the report is not admissible and the Court will not consider it in deciding the instant motion.
Moreover, even if Plaintiff had presented sufficient evidence to authenticate the toxicology report, it is hearsay. In opposition to Defendants' motion, Plaintiff cites the toxicology report for the proposition that Plaintiff tested negative for drugs as well as alcohol. The report is therefore an out-of-court statement offered for the truth of the matter asserted therein. See Fed. R. Evid. 801(c); Fed. R. Evid. 802. Plaintiff has not laid a foundation for any exception to the hearsay rule, and the report is therefore inadmissible. See Fed. R. Evid. 804.
Plaintiff also submitted a letter dated September 21, 2010 letter addressed to Shamika Jackson in support of his opposition to Defendants' motion. See Court's Docket, Doc. No. 78, Ex. J. The letter is from Defendants' attorney, and discusses re-noticing a deposition. The letter notes that Ms. Jackson was paid a witness fee to appear at the deposition. Plaintiff cites this letter in support of the assertion that "the defendant paid witnesses to give contradicting depositions different from their original statements."As a matter of law, all non-party witnesses who are subpoenaed to give deposition testimony are required to be paid a witness fee. See 28 U.S.C. § 1821. Neither Plaintiff nor Defendants has submitted any testimony from Ms. Jackson in support of their arguments on summary judgment. Thus, even viewing the letter in the light most favorable to Plaintiff, the letter does not create an issue of disputed fact.
B. Defendants' Undisputed Material Facts*fn6
On Friday, April 25, 2008, Defendants Williams and Finley, City of Fresno police officers, were working a double unit patrolling the Pinedale area of Fresno. See DUMF No. 1; Williams Decl. at ¶ 6; Finley Decl. at ¶ 7. During the preceding days, the City of Fresno Police Department had received numerous reports of home invasions and burglaries in this area of Fresno. See DUMF No. 2; Williams Decl. at ¶ 6; Finley Decl. at ¶ 7. At approximately 6:10 p.m. Officers Williams and Finley observed Wade and another subject openly drinking beer in the front yard of 232 W. Locust, approximately 1 foot away from the street curb. See Williams Decl. at ¶ 7; Finley Decl. at ¶ 8. Wade does not dispute that he and Lamont White were on the front porch of White's home at 232 W. Locust Street, but maintains that he was not drinking at all and was nowhere near the street curb.*fn7 See PRDUMF No. 1, Court's Docket, Doc. No. 78 at 18; Wade Decl. at ¶ 1; Wade Depo. at 39:17-25. Officers Williams and Finley drove past 232 W. Locust and claim they observed Wade and White in their rear view mirrors continuing to drink beer openly near the street. See Williams Decl. at ¶ 7; Finley Decl. at ¶ 8. The officers then turned their patrol car around, went back to the residence and parked in front of the home to investigate the matter.SeeDUMF No. 5; Williams Decl. at ¶ 8; Finley Decl. at ¶ 9.
Meanwhile, Defendants Wilkin and Irving, another double unit, as well as Sergeant Beer,*fn8 were dispatched to 232 W. Locust to assist. SeeDUMF No. 6; Wilkin Decl. at ¶ 6; Irving Decl. at ¶ 6. Upon parking the patrol vehicle, Officers Williams andFinley saw Wade immediately walk inside the residence with his beer.*fn9 See Williams Decl. at ¶ 9; Finley Decl. at ¶ 10. Officers Williams and Finley stepped out of their patrol car, asked White if it was okay to talk to him, and White said, "Yes." See DUMF Nos. 8, 9; Williams Decl. at ¶ 10; Finley Decl. at at ¶ 12. White stated that he lived at the location and was just having some beer with a friend, referring to Wade. See DUMF No. 10; Williams Decl. at ¶ 10; Finley Decl. at ¶ 12.Officer Williams went to the front door to make contact with Wade, who was standing at the opened front door.See DUMF No. 11; Williams Decl. at¶ 11; Finley Decl. at ¶ 13.Officer Williams asked to speak with Wade, and Wade stepped outside. Wade was acting very nervously*fn10 at that time. See Williams Decl. at ¶ 11; Finley Decl. at ¶ 13.
Officer Williams advised Wade and White of the drinking infraction and
asked for identification. SeeDUMF No. 13; Williams Decl. at ¶ 11;
Finley Decl. at ¶ 14. White immediately presented his identification,
which confirmed his identity as "Lamont White" and his date of birth.
See DUMF No. 14; Williams Decl. at ¶ 11; Finley Decl. at ¶ 15. Wade,
however, began looking away and hesitated when providing his name.See
DUMF 15; Williams Decl. at ¶ 11; Finley Decl. at 15. Wade responded he
had no identification, but gave the name of "John Brison"*fn11
with a birth date of 8/28/80. See DUMFNo. 16; Williams Decl.
¶ 11; Finley Decl. at ¶ 15; Wilkin Decl. at ¶ 7. Officer Finley ran a
wants and warrants check for White and Brison. White's name came back
clear of any wants, but the name "Brison" did not return any matches
for a driver's license. See DUMF No. 20; Williams Decl. at. ¶ 12-18;
Finley Decl. at ¶ 14-18. This caused the officers to become
suspicious, and they began questioning Wade to determine whether he
was telling the truth.*fn12 See DUMF Nos. 21-22;
Williams Decl. at. ¶ 16; Finley Decl. at ¶ 17; Wilkin Decl. at ¶ 7.
The officers requested a fingerprinting unit to respond to their
location, but when it arrived the machine was not functioning
properly. See DUMF No. 30; Williams Decl. at ¶ 17; Finley Decl. at ¶
21.Wade told officers he lived around the corner at 442 W. Fir with
his girlfriend, and he had an identification card at that
location.*fn13 See DUMF
No. 23; Pl.'s Decl. at ¶ 5; Williams Decl. at ¶13; Finley Decl. at ¶
18; Wilkin Decl. at ¶ 8.
Wade maintains Officer Williams told him he needed to take Wade into custody to run a fingerprint check, and he would have to be handcuffed as part of standard procedure. See Pl.'s Decl. at ¶ 9.Wade alleges he submitted to handcuffs and the officers put him inside their patrol car. See PRDUMF No. 7; Pl's Decl. at ¶ 10. The officers claim that when they informed Wade of the need to take him to the investigations bureau for fingerprinting, Wade responded, "Take me to my house and ask my girlfriend." See Williams Decl. at ¶ 18; Finley Decl. at ¶ 20; Wilkin Decl. at ¶ 9. Then, the officers contend, Wade voluntarily got into the backseat of Williams' and Finley's patrol car, without handcuffs, and they drove to the 442 W. Fir residence. See Williams Decl. at ¶ 19-20; Finley Decl. at ¶ 22-23; Irving Decl. at ¶ 8. Wade agrees he was driven to his girlfriend's house. See Pl.'s Decl. at ¶ 10. On summary judgment, the Court views the facts in the light most favorable to Mr. Wade and assumes he was handcuffed and driven to 442 W. Fir.
Upon arrival, Officer Williams went to the front door of the residence and knocked several times, attempting to make contact with Wade's girlfriend, but there was no answer. See DUMF No. 35; Williams Decl. at ¶ 19-20; Finley Decl. at ¶ 22-23; Irving Decl. at ¶ 8. Officer Irving ran a computer search for prior calls for service at the 442 W. Fir address, and came across the name "Deon" as a person associated with the residence. See DUMF No. 28; Irving Decl. at ¶ 38. Officers Finley and Williams then returned to the patrol car and opened the rear doors. See Pl.'s Decl. at ¶ 12; Finley Decl. at ¶ 26-27. Officer Williams informed Wade, now calling him "Deon,"*fn14 of the need to identify him so they could issue a citation, and that meant transporting him to the investigations bureau for fingerprinting. See Williams Decl. at ¶ 23-24; Finley Decl. at 26-28; Wilkin Decl. at ¶ 16. Wade attempted to protest and began yelling for his girlfriend to come out of the house. See Pl.'s Decl. at ¶ 13; Williams Decl. at ¶ 24; Finley Decl. at 28; Wilkin Decl. at 15. Wade also started kicking and punching the interior of the patrol car. See DUMF No. 39; Williams Decl. at ¶ 24; Wilkin Decl. at ¶ 15; J. Sandoval Decl. at 29:1-30:7; C. Sandoval Depo. at 27:2-16. Wade continued screaming for his girlfriend. See DUMF No. 41; Pl.'s Decl. at ¶ 14; Finley Decl. at ¶ 28; Williams Decl. at ¶ 15; Irving Decl. at ¶ 11. Officers repeatedly told Wade to calm down and tried to talk to him, but he continued kicking the window of the patrol car. See DUMF Nos. 42-43; C. Sandoval Depo. at ¶ 23:14-23; 26:20-27; 27:2-19. Wade alleges Officers Williams and Finley told him he was going to jail for assault on a police officer. See Pl.'s Decl. at ¶ 14. Neighbors who witnessed the incident testified that Wade's hands were free at this time. See C. Sandoval Depo. at 28:16-22; Reynolds Depo. at 16:15-19. However, Wade maintains he was still in handcuffs in the backseat of the patrol car. See PRDUMF No. 14; Pl.'s Decl. at ¶ 17. For summary judgment purposes, the Court will accept Wade's version of events.
Defendants contend Officers Williams and Wilkin attempted to place handcuffs on Wade and advised him that he would be cited and released from the Fresno Police Department Crime Scene Bureau for the minor violations of drinking in public and providing a false name. See Williams Decl. at ¶ 25; Wilkin Decl. at ¶ 16; Finley Decl. at ¶ 28; Irving Decl. at ¶ 11. Wade refused to comply and became increasingly agitated. See Finley Decl. at ¶ 29; Wilkin Decl. at ¶17. Officers Williams and Wilkin attempted to place Wade in a control hold . See Williams Decl. at ¶ 26; Wilkin Decl. at ¶ 18; Finley Decl. at ¶ 28; Irving Decl. at ¶ 12. Wade alleges that he was punched in the face and choked by Officer Finley while still in handcuffs and in the backseat of the patrol car. See Pl.'s Decl. at ¶ 17. Wade contends he was in shock and fear and nearly unconscious from being choked, when he felt his entire body burning and realized that Officer Finley was tasing him.*fn15 See Pl.'s Decl. at ¶ 18.Wade did not hear any of the officers warn him before Officer Finley applied the taser. See Pl.'s Depo. at 58:17-20.
Defendants allege Officer Finley's deployment of the taser had no effect, and Wade jumped out of the backseat of the patrol car, swinging his fists in a threatening manner at Officers Williams, Wilkin, and Sergeant Beer. See Finley Decl. at ¶ 32; Wilkin Decl. at ¶ 20; Irving Decl. at ¶ 14; Williams Decl. at ¶ 28.Wade disputes this account, claiming he was pulled from the patrol car by Officers Williams and Wilkin. See Pl.'s Decl. at ¶¶ 19-20. Wade then ran from Defendants toward his girlfriend's house, and Defendants chased after him giving him commands to stop. See DUMF Nos. 62-63. Wade contends Officer Williams kicked him in the back, but Wade was somehow able to maintain his balance and tried to move to safety on the other side of the house, while screaming for his girlfriend. See PRDUMF No. 18. Wade alleges Officers Williams, Wilkin, Irving and Finley pushed him to the ground, Officer Wilkin kicked him in the ribs,*fn16 and he then felt a barrage of kicks and punches by the officers. See PRDUMF No. 19; Pl.'s Decl. at¶¶ 22-23. Wade again felt his body burning, presumably from being tased, and then blacked out. See PRDUMF No. 18.
Defendants provide more detailed account of the final moments of the incident. According to Defendants, Officer Finley lost his footing while he was chasing Wade and fell to the ground, causing the cartridge from his taser to break off. See DUMF No. 69. Officer Finley then caught up to Wade, and Wade took a fighting stance toward him. See DUMF No. 71. Officer Finley advised Wade that he was going to use his taser. See DUMF No. 72. Officer Wilkin arrived to assist,*fn17 and pushed Wade into a fence, but Wade began throwing violent punches. See DUMF No. 75-76. Officer Wilkin contends that the swiftness of Wade's attack did not allow him time to use his department-issued weapons, and so he struck Wade in the area of his right eye.See DUMF No. 78-79. Officer Irving yelled out, "Taser, Taser, Taser!" and deployed his department-issued X26 taser in dart mode at Wade's center mass.*fn18 See Williams Decl. at ¶ 33; Finley Decl. at ¶ 38; Wilkin Decl. at ¶ 27; Irving Decl. at ¶ 20. Once the first five-second taser cycle ended, Defendants contend Wade began punching and kicking at Officers Finley and Wilkin as they attempted to place handcuffs on him. See DUMF No. 85. Officer Irving cycled the taser for another five seconds, which momentarily caused Wade to stop kicking and punching. See DUMF No. 84. But Wade again started punching and kicking toward the officers, and they again directed him to stop resisting and put his hands behind his back. See DUMF No. 84-85. Wade, however, continued to resist, and Officer Irving cycled the taser for a third and final five-second cycle. See DUMF No. 87. At this point, the officers claim they were able to place handcuffs on Wade, and ...