The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER ON DEFENDANT JOHN PINNEGAR'S MOTION FOR SUMMARY JUDGMENT (Doc. 26)
I. INTRODUCTION AND PROCEDURAL HISTORY
On October 22, 2010, Plaintiff Gregory Williams initiated this action against Defendants the City of Merced and John Pinnegar, an officer of the City of Merced Police Department. He seeks recovery for unlawful arrest and for injuries sustained when, during the arrest, Plaintiff was forced to the ground and tasered. On February 14, 2011, before any Defendant appeared in the action, Plaintiff filed a First Amended Complaint.
On October 18, 2011, the parties consented to Magistrate Judge jurisdiction, and so the matter was assigned to the undersigned for all purposes on October 20, 2011. (ECF Nos. 16-18.)
Presently before the Court is Defendant Pinnegar's Motion for Summary Judgment ("Motion"). Defendant Pinnegar seeks summary judgment on claims one, three, four and five of the complaint for unlawful arrest, excessive force, interference with the enjoyment of Plaintiff's state constitutional rights, intentional infliction of emotional distress, and assault and battery, respectiovely. Defendant also seeks summary adjudication of Plaintiff's claim of punitive damages under state law.
During the meet and confer process, Plaintiff agreed to dismiss his second, sixth and portions of his first cause of action. Accordingly, the instant motion addresses the remaining claims of the first amended complaint. The motion was argued before the undersigned on January 18, 2013. Plaintiff's counsel, Adante D. Pointer, and Defendant's counsel, Kevin P. Allen, both appeared in person. The matter stands ready for adjudication.
II. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
With dismissal of the second and sixth causes of action and his due process and pre-conviction punishment claims, Plaintiff's remaining causes of action are as follows:
a.) Plaintiff's first cause of action alleges violation of the Fourth Amendment by virtue of Defendant Pinnegar's unreasonable seizure of Plaintiff and use of excessive force in the process thereof;
b.) The third cause of action claims the wrongful actions of Defendant Pinnegar denied Plaintiff rights provided him under the California Constitution;
c.) The fourth cause of action is for intentional infliction of emotional distress; and,
d.) The fifth cause of action is for assault and battery.
Defendant Pinnegar asserts that there is no genuine dispute as to any fact material to these causes of action or as to Plaintiff's prayer for punitive damages. Further, he argues that he is entitled to judgment as a matter of law on each cause of action and on the punitive damage claim because under the undisputed material facts: he had probable cause to arrest Plaintiff; exigent circumstances justified arresting Plaintiff in his home without a warrant; he used reasonable force, and made no threats, in his dealings with Plaintiff; he has immunity from Plaintiffs' claims; and, California Government Code shields him from a claim of intentional infliction of emotional distress.
Plaintiff disputes the foregoing, arguing in essence that material facts are, indeed, in dispute and that the true facts establish that Defendant Pinnegar acted unreasonably, without probable cause, and with excessive force in arresting Plaintiff.
The competing claims will be explored in greater detail in the analysis below.
III. LAW APPLICABLE TO SUMMARY JUDGMENT GENERALLY
Federal Rule of Civil Procedure 56(a) provides that "[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." It further provides that "[t]he 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).*fn1 A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party: always bears the initial responsibility 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) (quoting then-numbered Fed. R. Civ. P. 56(c). "Where the nonmoving 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. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").
If the moving party meets its initial responsibility, the opposing
party must establish that a genuine dispute as to any material fact
actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the
opposing party must demonstrate the existence of a factual dispute
that is both material, i.e., it affects the outcome of the claim under
the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic,
Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025,
1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,'"
FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.
2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary
judgment must support the assertion that a genuine dispute of material
fact exists by: "(A) citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations . . . , 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."*fn2
Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party
"must show more than the mere existence of a scintilla of evidence."
In re Oracle Corp. Sec. Litig., 627
F.3d at 387 (citing Anderson, 477 U.S. at 252).
In resolving a motion for summary judgment, the evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). However, to demonstrate a genuine factual dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
In his moving papers Defendant Pinnegar identifies fifty-four facts
(Defendant's Undisputed Material Facts "DUMF" 1-54) which he contends
are without dispute. He asserts that once it is established that these
facts are indeed undisputed, they show his
entitlement to judgment as a matter of law on all causes of action and
claims against him.
Instead of reproducing DUMF and identifying those facts disputed and undisputed in accordance with applicable rules, Plaintiff submitted a new list of thirty three facts entitled "Joint Undisputed Material Facts and Supporting Evidence." He has since asserted that confusion over evolving drafts of DUMF caused him mistakenly to respond to an earlier draft. Later, after expiration of the deadline for responding to Defendant's moving papers, Plaintiff submitted an amended response to DUMF in which he lists and, in one fashion or another, addresses each of the fifty-four facts. The Court accepts the late-filed amended response and proceeds on the basis thereof.
So construed, Plaintiff identifies fourteen of the fifty-four of DUMF as being "undisputed." Plaintiff does not explicitly state whether he is disputing the remainder of the fifty-four facts or not, but does cite evidence in support of appended comments labeled "Plaintiff's Opposition and Supporting Evidence." On review of the latter, the Court finds that as to all but those discussed below, Plaintiff's Opposition does not dispute the accuracy of DUMF, but rather undertakes to supplement and clarify them. In summary, the Court finds that Plaintiff, in fact, raises disputes only as to those issues specifically identified below as being in dispute. All facts below not noted as being in dispute, are deemed undisputed:
At about 4:30 p.m., on September 11, 2009, Defendant Merced Police Officer Pinnegar, a fourteen year law enforcement veteran, responded to a reported domestic dispute at Plaintiff's residence at Apartment 109, 2355 "K" Street, Merced California. (DUMF ¶¶ 1-3, ECF No. 34-1.) On arrival at the apartment complex, Pinnegar activated a digital audio recording device he carried (from which a very rough written transcript of the ensuing dialogue has since been produced).*fn3 (DUMF ¶ 4.) He was met at the scene by Demetrice Phifer who identified herself as Plaintiff's wife and reported that Plaintiff had abused her in the past and just punched her in the stomach three times. (DUMF ¶¶ 5-6.) She wanted him arrested.
Plaintiff, a double below-the-knee amputee, was at the time sitting in a wheelchair in the open doorway of his apartment with his two year old daughter in his lap. (DUMF ¶¶ 7-9.) He began to approach Pinnegar and Phifer, but was told by Pinnegar to return to his apartment. He did and situated himself just inside his open doorway with the door open.
Pinnegar approached him and in a 'regular' voice, requested, and Plaintiff supplied, identification. (DUMF ¶ 11.) At some point Pinnegar advised Plaintiff that his wife had accused him of domestic violence. (DUMF ¶ 13.) Plaintiff denied the allegation and advised that Phifer was the subject of an outstanding warrant. (DUMF ¶ 11.) It is clear from the audiotape that Pinnegar expressed disbelief as to Phifer's allegations and intended not to arrest Plaintiff on a spousal abuse charge. According to Plaintiff, Pinnegar so informed Plaintiff. (DUMF ¶ 12.)
The two were joined by Merced Police Officer Court and Child Protective Services ("CPS") representative Cathy Clark. (Id.) With all three there, Plaintiff, according to Defendant, "now sat in the doorway to his apartment"; according to Plaintiff, Plaintiff at all times remained inside the threshold of his doorway. Along these same lines, Defendant Pinnegar maintains that he "never" entered Plaintiff's apartment. (Pinnegar Dep. Tr., p. 145:9-21.) According to Plaintiff, the physical contact which ensued and gave rise to this lawsuit occurred after the two officers entered his apartment and while they were inside it. (Williams Dep. Tr., pp. 74-75.)
Clark, the CPS representative, asked Plaintiff for identification information. (DUMF ¶ 16.) Plaintiff objected that he had already provided such information to Pinnegar, and he objected to further questioning. (DUMF ¶ 17.) According to Defendant, Plaintiff refused to answer the CPS questions and began yelling at the officers. (DUMF ¶ 18.) Plaintiff maintains he did not decline to answer; however, audio transcripts convey a clear unwillingness to respond which most would take as a refusal. Plaintiff responds to the accusation that he began yelling by noting that he was simply confused as to why he was being questioned when he already had been told that he was not going to be arrested. (Williams Dep. Tr., 100-101.) This exchange continued and ultimately resulted in Officer Court advising Plaintiff he was going to be arrested for violating California Penal Code Section 243(e) [spousal abuse], even though Pinnegar had just advised Plaintiff that he was not going to arrest him. (DUMF ¶ 20.) Plaintiff's young daughter was taken from his lap. (Id., ¶ 21.) Plaintiff demanded her back. (Id., ¶ 22.)
Spectators had gathered outside of Plaintiff's apartment. (DUMF ¶ 24.) (By the time Plaintiff's child was taken their number had increased and they came closer. According to Plaintiff, the spectators were some 10 to 20 neighbors who originally were about 30 feet away, "only ever coming within 15 feet of the fracas." (Id.)) Plaintiff's brother-in-law arrived and yelled at the police about the way they were treating Plaintiff. (Id. ¶ 25.) Officer Court was sensitive to the crowd and the danger it might pose, but Pinnegar, who had his back to the crowd, was not. (Id. ¶ 27.) Back up was requested to come with lights and sirens. (Id. ¶ 27.)
Thereafter the officers told Plaintiff repeatedly to put his arms behind his back. (DUMF ¶ 29.) Plaintiff did not do so. (Id. ¶ 30.) Defendant claims Plaintiff's hands "remained gripped to his wheelchair" as he stated he was not going to jail. (Id. ¶¶ 31-32.) Plaintiff denies gripping the wheelchair except insofar as he at one point grabbed the chair with one hand for balance to keep from falling face first to the ground. (Id. ¶ 33.) Plaintiff maintains he did not resist the officers.
As the two police officers, one on each of Plaintiff's arms, struggled unsuccessfully to restrain him, Pinnegar advised he would tase Plaintiff. (DUMF ¶ 40.) Tasers are deemed by the Merced Police Department to be a non-deadly control device intended to incapacitate without causing serious injury. The officers chose tasing as an option over pepper spray for fear the latter would inadvertently affect those nearby, including Plaintiff's daughter. (Id. ¶ 40.) According to Pinnegar, he tased Plaintiff in drive-stun mode for from 5 to 60 seconds; downloaded data suggests, and Pinnegar and Court testified, that the taser was used just once on Plaintiff. (Id. ¶¶ 42, 44-45.) Plaintiff maintains that he was tased more than once. (Williams Dep. Tr., p. 63.) Though not initially recalling how the tasing felt, Plaintiff asserts it was painful and shocking and dazed him and caused him to lose consciousness. (DUMF ¶¶ 46-47.) He maintains he awoke on the ground with his pants down and his genitals exposed. (Id. ¶ 52.) He complained of shoulder pain, and Pinnegar called an ambulance. (Id. ¶ 51.) Pinnegar maintains that he and Court placed Plaintiff on the ground and pulled his pants up. There is a dispute as to whether Plaintiff had released his grip on his wheelchair before he was tased or as a result of being tased.
V. MATERIAL FACTS IN DISPUTE
From the foregoing, the truly essential facts and disputes can be summarized as follows:
Police officers investigated what had been reported as a physical assault by Plaintiff on his wife. Defendant became satisfied Plaintiff had not committed spousal abuse and need not be arrested. A CPS representative undertook to question Plaintiff. Plaintiff objected and would not respond. A group of about 15 to 20 people, standing 15 to 30 feet away, watched the dispute and Plaintiff's child being taken from him. Plaintiff's brother yelled at the police. The officers determined to arrest Plaintiff. There is a dispute as to whether the arrest was undertaken in or just outside of Plaintiff's apartment. Defendant maintains Plaintiff resisted the officers attempt to restrain Plaintiff and grabbed his wheel chair with both hands; Plaintiff denies resisting. A scuffle ensued. Plaintiff was taken to the ground, his arms were forced behind his back and he was tased once according to the officer; more than once according to Plaintiff. Plaintiff was taken into custody.
From that distillation of facts, the crucial issue presented on this motion becomes whether one can say as a matter of law that Defendant had probable cause to arrest Plaintiff, inside or outside of his residence, and whether Defendant ...