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Maher Darraj, An Individual; and Nader v. County of San Diego; Jason

April 29, 2013

MAHER DARRAJ, AN INDIVIDUAL; AND NADER DARRAJ, AN INDIVIDUAL,
PLAINTIFFS,
v.
COUNTY OF SAN DIEGO; JASON TITUS, AN INDIVIDUAL; JASON PHILPOT, AN INDIVIDUAL; STEPHEN WALTON, AN INDIVIDUAL; AND DOES ONETHROUGH TWENTY-FIVE
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING IN PART AND DENYING IN PART ) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 26)

On July 26, 2011, Plaintiffs Maher Darraj ("Maher') and Nader Darraj ("Nader") (collectively, "Plaintiffs") filed the instant Complaint arising under 42 U.S.C. § 1983 and California law. (Doc. No. 1.) The Complaint was filed against the County of San Diego ("County"), Sheriff Deputy Jason Titus ("Deputy Titus"), Sheriff Deputy Jason Philpot ("Deputy Philpot"), and Sheriff Deputy Stephen Walton ("Deputy Walton") (collectively, "Defendants"). (Id.) Plaintiffs filed a First Amended Complaint ("FAC") as a matter of right on December 6, 2011. (Doc. No. 5.) Presently before the Court is Defendants' motion for summary judgment on Plaintiffs' FAC. (Doc. No. 26.) Plaintiffs filed a response in opposition on March 18, 2013, (Doc. No. 31), and Defendants filed a reply in support on March 29, 2013, (Doc. No. 32).

BACKGROUND

The instant action arises from an incident that occurred at Plaintiffs' apartment complex on the evening of July 28, 2010, wherein Plaintiffs were arrested by Deputy Titus, Deputy Philpot, and Deputy Walton. The parties each provided their version of the facts, each supported by declarations and deposition testimony. However, these versions of the facts each provided a radically different portrayal of the events that transpired on the evening of July 28, 2010. Therefore, the Court outlines two versions of the facts, one presented by Plaintiffs and the other presented by Defendants.

Plaintiffs' Rendition of the Facts

Plaintiffs Maher and Nader reside in the same apartment unit in a complex located in El Cajon, California. (Doc. No. 31, Ex. 1, Maher Decl. ¶ 2; Doc. No. 31, Ex. 2, Nader Decl. ¶ 4.) Plaintiffs' apartment is located on the ground floor of a six-unit complex, and is adjacent to the unit occupied by their older brother Doory Darraj ("Doory") and his wife and three small children. (Id.) Just outside Plaintiffs' apartment is a grassy area with a picnic table located in the center. (Id.)

On night in question, Wednesday, July 28, 2010, Maher, Nader, Doory, and no more than five or six of Plaintiffs' friends were all gathered around the picnic table outside Plaintiffs' apartment. (Doc. No. 5 ¶ 9; Doc. No. 31, Ex. 1, Maher Decl. ¶ 9; Doc. No. 31, Ex. 4, Nader Decl. ¶¶ 4, 13.) Hazam Omar ("Hazam"), a friend of Plaintiffs, was also present, but was inside Plaintiffs' apartment when the incident began. (Doc. No. 31, Ex. 1, Maher Decl. ¶ 3; Doc. No. 31, Ex. 4, Nader Decl. ¶ 4.) At approximately 11:00 p.m., an hour after Hazam first arrived at Plaintiffs' apartment, Plaintiffs allege that Hazam's wife, Esmeralda Henry ("Ms. Henry"), pulled into the driveway of Plaintiffs' apartment complex. (Doc. No. 31, Ex. 1, Maher Decl. ¶ 4; Doc. No. 31, Ex. 4, Nader Decl. ¶ 5)

After Ms. Henry pulled into the driveway, Maher saw Doory walk up to Ms. Henry's car. (Doc. No. 31, Ex. 2, Maher Decl. ¶ 4.) Maher then alleges that as Ms. Henry and Doory were talking, Deputy Titus rushed up to Doory, grabbed him around the neck, began choking him using a carotid restraint, and then ultimately forced Doory to the ground. (Doc. No. 31, Ex. 1, Maher Decl. ¶¶ 4, 5.) Maher further alleges that Doory did not yell at Ms. Henry or otherwise lean his body into the car prior to any of Deputy Titus' actions, and that Deputy Titus did not warn or say anything to Doory before attacking him. (Id.) Maher also alleges that he heard Ms. Henry tell Deputy Titus multiple times during the altercation, "That's not Hazam," but that Deputy Titus continued to restrain Doory, ultimately bringing Doory to the ground.*fn1 (Id.)

Maher then alleges that he took a few steps towards Deputy Titus and stated, "This is not Hazam. This is my brother. It's not Hazam." (Id. at ¶ 7.) Maher alleges that Deputy Titus thereafter told him to sit down on a nearby wooden curb, and after he complied, Deputy Titus walked over to him and hit him in the nose with something very heavy. (Id. at ¶ 8.) Maher alleges the blow to his face knocked him unconsciousness for a few seconds, and when he regained consciousness, he was lying face down on the driveway with one of the deputies' knees in his back. (Id.)

Nader contends he witnessed the altercation between Deputy Titus and Maher. (Doc. No. 31, Ex. 4, Nader Decl.) Nader alleges that he saw Maher move from the picnic table to where Doory and Deputy Titus were located. (Doc. No. 31, Ex. 4, Nader Decl. ¶ 7; Doc. No. 31, Ex. 5, Nader Depo. at 34:12-21.) Nader then alleges he saw Deputy Titus leave Doory and walk a few steps toward Maher, wherein Deputy Titus hit Maher in the face with what appeared to be a flashlight or a baton. (Doc. No. 31, Ex. 4, Nader Decl. ¶ 7.) Nader alleges he did not make any movements or verbalize any comments to any of the deputies until he saw Deputy Titus hit Maher in the face.*fn2 (Doc. No. 31, Ex. 5, Nader Depo at 35:3-8.)

After Nader saw Deputy Titus choke Doory and hit Maher in the face, Nader alleges he told a second deputy present at the scene, "What happened with me and my brother, mother fucker?"*fn3 (Doc. No. 31, Ex. 4, Nader Decl. ¶ 9; Doc. No. 31, Ex. 5, Nader Depo. at 36:1-11.) While making this statement, or soon thereafter, Nader alleges he took a few steps forward, which was in the direction of the driveway, closer to the second deputy and father away from Maher.*fn4 (Doc. No. 31, Ex. 4, Nader Decl. ¶ 9; Doc. No. 31, Ex. 5, Nader Depo. at 51:7-25.)

After Nader moved to this new location under the tree, Nader alleges the second deputy fired a taser gun at him.*fn5 (Doc. No. 31, Ex. 5, Nader Depo. at 57:8-23.) Nader further alleges that this deputy did not say anything before deploying the taser, nor did this deputy give Nader any warning that he was planning to deploy the taser.*fn6 (Doc. No. 31, Ex. 4, Nader Decl. ¶ 10; Doc. No. 31, Ex. 5, Nader Depo. at 58:12-18.) After Nader resumed consciousness, which he contends was approximately ten seconds later, Nader alleges he was handcuffed by one of the deputies, placed face down on the ground, put in the backseat of the police car, and then taken to jail for booking. (Doc. No. 31, Ex. 5, Nader Depo. at 62:1-6, 63:3-6.)

After the incident at Plaintiffs' apartment, Plaintiffs were taken to jail and booked on two separate felony charges: (1) violation of Penal Code § 405(a), lynching; and (2) violation of Penal Code § 69, resisting an officer by force and violence. (Doc. No. 31 at 4:16-20.) On December 12, 2010, a two-day preliminary hearing was held in San Diego Superior Court before Judge Thompson. (Doc. No. 31, Ex. 9.) At the conclusion of the preliminary hearing, Judge Thompson found that there was insufficient facts to find that the crimes had been committed. (Id.) Accordingly, all criminal charges against Plaintiffs were dismissed. (Id. at 331:12-16.)

Defendants' Rendition of the Facts

Defendants present the following facts regarding the incident in question. On July 28, 2010, Deputy Titus received a radio call dispatching him to contact Ms. Henry, who had called 9-1-1 earlier that evening to report a domestic violence incident. (Doc. No. 26, Ex. A, Titus Depo. at 40-43.) After receiving the call, Deputy Titus met Ms. Henry in the parking lot of a convenience store (7-Eleven), wherein Ms. Henry informed him that she had a valid restraining order against Hazam (her husband), and that Hazam had violated the restraining order earlier that evening when he coaxed her out of her apartment and beat her. (Id. at 43:4-44:7, 52:3-18.) Deputy Titus alleges that Ms. Henry was tearful, shaken, and had visible injuries that she attributed to the recent and prior physical abuse inflicted by Hazam. (Id. at 44:9-19.) Ms. Henry then indicated that she could take Deputy Titus to Hazam's location, but could not give Deputy Titus the address of the location because she did not know it. (Id. at 55:5-10, 58:1-13.) Therefore, Deputy Titus instructed Ms. Henry to drive to the location, park her car on the street, and point Deputy Titus in the direction of the residence. (Id.) Deputy Titus asked Deputy Walton and Deputy Philpot to accompany him to the location to provide additional security and a law enforcement presence. (Id. at 57:19-23.)

After Ms. Henry pulled into the driveway of Plaintiffs' apartment, Deputy Titus, Deputy Philpot, and Deputy Walton parked their cars and walked in the direction of the driveway. (Id. at 74:24-75:1; 78:2-5.) While walking towards the driveway, Deputy Titus alleges that he heard someone yelling in a foreign language, and saw a group of at least six men standing in the vicinity of the grassy area in front of Plaintiffs' apartment.

. at 78:6-9, 78:12-14.) Deputy Titus also alleges that he saw a man start walking towards Ms. Henry's car and heard yelling. (Id. at 78:9-11.) Upon hearing yelling, Deputy Titus alleges that he ran around a bush, looked down the driveway in the direction of Ms. Henry's car, and when the car came into view, saw a man with his upper torso leaned into the car. (Id. at 78:20-79:25, 81:5-6, 81:11-13.)

After viewing the unidentified man (who was later identified as Doory) lean into Ms. Henry's car, Deputy Titus alleges that he ran up to the vehicle and began giving verbal instructions to Doory to "Step away from the car," "Move away from the car," and "Sit down on the curb line." (Id. at 85:14-22.) At that point, Deputy Titus alleges that Doory removed his upper torso from the inside of the car, brought his hands up, began waving his hands around, and starting saying, "What? I did nothing to her." (Id. at 85:24-86:4.) Deputy Titus then alleges that Doory began walking backwards towards the group of men located on the grassy area. (Id.) After Doory failed to follow his instructions and sit on the curb, Deputy Titus alleges that he instructed Doory to "Turn around away from me, bring your hands to the small of your back." (Id. at 88:7-14.) Deputy Titus then alleges that when he went to take hold of Doory's hands to place handcuffs on him, Doory yanked his hands up, roughly to shoulder height, and then swung his elbow backwards towards Deputy Titus' head. (Id. at 92:6-11.) After Doory swung his other elbow in the direction of Deputy Titus, Deputy Titus attempted to block the strike with his right hand and right forearm. (Id. at 93:16-17.) Deputy Titus then moved forward and put all his body weight into Doory's back, came over the top of Doory's body, and applied a carotid restraint with maximum pressure. (Id. at 16-20.) Doory then went unconsciousness and Deputy Titus held Doory up so he would not fall to the ground. (Id. at 95:22-96:6.)

Deputy Titus then alleges that when the altercation with Doory first started, there was a lot of yelling and screaming from the men located on the grassy area in front of Plaintiffs' apartment. (Id. at 96:25-97:2.) Deputy Titus alleges that these men started running towards him, and that as Deputy Titus was dropping Doory to the ground so that Deputy Titus could move away from these individuals, one of the individuals, who was later identified as Maher, hit him in the upper right side of Deputy Titus' body armor.*fn7

at 97:14-21, 98:5-7.) As Deputy Titus spun around to see who had hit him, he saw that Maher was already lying on the ground with Deputy Philpot on his back, who appeared to be utilizing a carotid restraint to immobilize Maher. (Id. at 100:6-11.)

Prior to immobilizing Maher, Deputy Philpot alleges that Maher was yelling "Fuck you. That's my brother, fuck you," and appeared to be visually upset. (Doc. No. 26, Ex. C, Philpot Depo. at 71:9-20.) Specifically, Deputy Philpot alleges he could see the veins bulging in Maher's neck, could see that Maher's face was red and sweating, and ...


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