ORDER ON DEFENDANTS'
MOTION FOR SUMMARY
(Doc. No. 53, 57, 108)
This case stems from the arrest of pro se Plaintiff Anthony Slama ("Slama") by Madera Police Officers Josh Chavez ("Chavez") and Shant Sheklanian ("Sheklanian") *fn1 for violation of California Penal Code § 148(a)(1). Slama has brought suit in this Court under 42 U.S. C. § 1983 and alleges four violations of the Fourth Amendment against the City of Madera ("the City"), Chavez, and Sheklanian. The Court previously granted two summary judgment motions in favor of Defendants, and closed the case. However, on September 12, 2011, the Court granted Slama's Rule 60 motion and reopened the case on the grounds that Slama's counsel had essentially abandoned him by not filing oppositions to the summary judgment motions. The Court vacated the two summary judgment orders, permitted Slama to represent himself in this matter, and gave him the opportunity to file an opposition to Defendants' motions. The Court has now received Slama's opposition and Defendants' reply. After considering the initial moving papers, as well as the recent opposition and reply, the Court will grant in part and deny in part Defendants' motions.
On December 20, 2005, around 1:30 a.m., officers Chavez and Sheklanian observed Slama walking on the south side of East Central Avenue and "D" Street around 1:30 a.m. *fn3 See DUMF 1; DSUMF's 2, 3; PRDSUMF's 2, 3. This area is known for drug activity. See Chavez Depo. 20:20-24. The officers were in a marked police vehicle. See DSUMF 4. The officers shined a spotlight on Slama, turned their vehicle around, and drove their vehicle toward Slama. See Slama Dec. (Doc. No. 110) at ¶ 17. Slama was wearing pleated pants, a leather jacket, black dress shoes, and had a red igloo lunch pail strapped around his shoulder. See Slama Depo. 35:23-.36:25. Slama was not walking in the shadows when the officers observed him. See PUMF 1.
The officers exited their vehicle quickly and issued an order for Slama to stop. See Slama Dec. at ¶ 18. Slama heard the officers come very quickly/run towards him. See id. at ¶ 19. When Slama heard the officers' command to stop, he complied, stopped walking, kept his back to the officers, and did not turn around. See id. at ¶¶ 20, 21; Slama Depo. 43:12-44:17.
Sheklanian then went to Slama's left side. See Slama Depo. 44:19-20. Sheklanian told Slama that he was going to search Slama for weapons, and then immediately grabbed Slama's left wrist. See id. at 44:22-45:13; Slama Dec. ¶ 22. Sheklanian did not ask Slama for permission to search his person for weapons, but grabbed Slama's wrist and moved the wrist towards the middle of Slama's back. See Slama Depo. 44:25-46:1.
Within one or two seconds later, Chavez came to Slama's right
side. See Slama Depo.
46:4-6. Chavez told Slama that he wanted to see Slama's other
hand, and then grabbed Slama's right hand. See id. at 46:7-11. Slama's
right hand was empty and opened when Chavez grabbed it. See id. at
46:25-47:7. As Chavez took Slama's right hand, Chavez lunged Slama's
hand/arm upward and slightly outward, which caused Slama's body to
"jackknife" and forced Slama to go down on his knee. See id. at
46:20-47:25. Slama heard Chavez say, "I got him," and then Chavez got
on Slama's back and placed a choke hold on Slama. *fn4
See id. at 48:6-16; Slama Dec.
¶¶ 24, 26. Slama began to lose consciousness as a result of the choke hold, and Chavez rolled Slama to the ground. See id. at 51:1-6, 52:2-4. Chavez got off Slama's back, and Slama was nearly laying flat on the ground. See id. 51:9-16. Slama reached for his neck, and heard one of the officers say "down, down, down," or "get down." See id. Slama did not try to get up from the ground. See id. 53:3-5. As Slama heard the officers telling him "down," Chavez deployed a taser on Slama. See id. at 53:1-24. Slama was on his stomach and the officers did not warn him that they would deploy the taser. See id. Slama felt the taser application. See id. at 53:23-54:6. Only one taser application was utilized against Slama. DSUMF 14.
After the taser application, Slama was temporarily incapacitated on his stomach. See Slama Depo. 53:17-54:6. Slama was then picked up and placed in the back of the police car without further incident. See id. at 54:16-56:7. Slama was arrested for violation of Penal Code § 148(a)(1) -- resisting, delaying or obstructing an officer. DFUMF 1. During the encounter of December 20, 2005, Slama did not consent to being searched and did not resist the officers. See Slama Dec. ¶¶ 25, 29; Slama Depo. 44:5-47:17, 52:9-53:22, 99:20-100:20. The Penal Code § 148(a)(1) charge was subsequently dropped on May 2, 2008. See DSUMF 16.
The City Police Department has a POST Perishable Skills Program regarding Arrest and Control. DFUMF 10. The City has a POST Perishable Skills Program regarding Tactical Firearms. DFUMF 11. The City's police officers receive training on the necessary tactical knowledge and skills to safely and effectively arrest and control a suspect. DFUMF 12. The City Police Department's officers receive training on the necessary firearms tactical knowledge. DFUMF 13. For example, Sheklanian has received at least 158 hours of training. DFUMF 14. This includes 134 hours of POST certified training. Id.
The City Police Department has a Manual which covers Use of Force, Deadly Force Review, Shooting Policy, Leg Restraint Device and Control Devices and Techniques. DFUMF 15. The City Police Department Policy does not contain a policy or procedure that permits the use of excessive force by its officers in violation of the Constitution. DFUMF 16.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
Slama alleges four violations of the Fourth Amendment: (1) detention and arrest without reasonable suspicion or probable cause; (2) excessive force; (3) Monell liability for failure to train; and (4) Monell liability for a custom or policy that permits excessive force. The Court will address the causes of action separately.
1. First Cause of Action -- Arrest Without Probable Cause
Defendants argue that the officers had probable cause under Penal Code § 148(a)(1). *fn5 Slama was walking in the shadows of a high crime area at 1:30 a.m. When the officer approached, Slama acted very nervous. After receiving permission to search for weapons, the officers noticed that Slama's hand was in a fist and he refused to open it. Slama's hand came towards his mouth. The officers struggled with Slama and Slama did not obey commands. This conduct provided probable cause to arrest. *fn6
Slama argues that the evidence shows that the officers did not have a basis to legally stop him, and that he complied with the commands that were given. Slama also argues that he did not consent to any of the conduct by the officers, and did not resist them. Because there was neither a legal basis for the stop nor probable cause to arrest, summary judgment is improper.
Legal Standard "The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002); Ramirez v. City of Buena Park, 560 F.3d 1012, 1020-21 (9th Cir. 2009). Under the Fourth Amendment, a "detention or seizure of a person occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." United States v. Orman, 486 F.3d 1170, 1175 (9th Cir. 2007); Desyllas v. Bernstine, 351 F.3d 934, 940 (9th Cir. 2003).
"The Fourth Amendment requires police officers to have probable cause before making a warrantless arrest." Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009); see Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004). "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." Rodis v. City & County of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009); John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008). Courts look to "the totality of the circumstances known to the arresting officers to determine if a ...