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Terry Morgan v. City and County of San Francisco

January 26, 2012

TERRY MORGAN, PLAINTIFF,
v.
CITY AND COUNTY OF SAN FRANCISCO, OFFICER D. FONG, #1552, OFFICER GIOVANNELLI, #997,
DEFENDANTS.



The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

United States District Court Northern District of California

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. No. 39)

This section 1983 lawsuit arises out of an August 15, 2008 arrest. Plaintiff Terry Morgan alleges that defendants Officer Fong and Officer Giovanelli used excessive force 22 against him when they arrested him for jaywalking. Plaintiff previously filed an identical 23 lawsuit in California state court, which was dismissed with prejudice. Defendants move for 24 summary judgment on all claims, arguing, in part, that res judicata precludes Plaintiff from 25 litigating these claims again. After carefully considering the evidence properly submitted by 26 the parties, and having had the benefit of oral argument on January 26, 2012, the Court 27 GRANTS Defendants‟ motion for summary judgment. 28

SUMMARY JUDGMENT EVIDENCE

On August 15, 2008 the defendant officers witnessed Plaintiff jaywalking. (Dkt. Nos. 31 at 1, 37 at 2.) When the officers asked for Plaintiff‟s identification, he informed them that 4 he had none. (Dkt. Nos. 31 at 2, 37 at 2.) Defendants allege that at this point Plaintiff became 5 hostile, and that when they attempted to detain Plaintiff for refusing to provide his 6 identification and comply with other verbal commands, Plaintiff tried to escape on foot. (Dkt. 7 No. 37 at 2.) Plaintiff contends that he attempted to escape after Officer Fong "became hostile 8 and started shoving" him. (Dkt. No. 31 at 2.) After being put into "restraints" by Officer 9 2.) Upon arrival at the county jail, Officer Giovanelli punched him "until he was out of 11 breath." (Dkt. No. 31 at 2.) 12

On February 10, 2009, Plaintiff filed a lawsuit in San Francisco Superior Court against 14 then-Officer, now Sergeant Fong, Officer Giovanelli, and the San Francisco Police 15 Department ("SFPD"). (See Dkt. No. 40, Ex. A.) Plaintiff‟s form complaint listed causes of 16 action for intentional tort, general negligence, and "assault." (Id. at 3.) Specifically, Plaintiff 17 alleged: 18 19

I was assaulted by Officer D. Fong with pushing and shoving. I have prior injuries 20 from an arm robber/resulting to a 12 gauge shotgun blast to my upper right arm. 21

During completion of transportation during a j-walking arrest. Officer-Giovanelli 22 began repeatedly punching me while I was in restraints causing me to fall on the 23 restraint bar bench, dislocating my shoulder. And placing restraints on my wrist until 24 my wrist bled causing a sprained wrist. 25 26

On July 24, 2009, Plaintiff filed a First Amended Complaint. (See Dkt. No. 40, Ex. B.)

After the City‟s demurrer for failure to state a claim was sustained with leave to amend (id. at

Giovanelli, Officer Fong "bust[ed] [his] lip against the ihop window" nearby. (Dkt. No. 31 at 10

PROCEDURAL HISTORY

(See Dkt. No. 40, Ex. A.) 27

Ex. C), Plaintiff failed to amend his complaint. Then in December 2009, the Court granted 2

27, 2010, judgment was entered in Defendants‟ favor. (Id. at Ex. F.) The San Francisco 4

On May 7, 2010, Plaintiff filed a second lawsuit in San Francisco Superior Court which 6 was removed by the City to federal court on grounds that the allegations created federal court 7 jurisdiction under 42 U.S.C. § 1983. (Dkt. No. 1 at 2.) Plaintiff subsequently amended the 8 complaint and identified Officer Fong, Officer Giovanelli, and the SFPD as defendants. (See 9

"became hostile and started shoving" Plaintiff (id. at Ex. G) and that Officer Giovanelli 11 punched Plaintiff and slammed him into ...


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