ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c) (ECF No. 40)
BARRY TED MOSKOWITZ, Chief District Judge.
I. Procedural Background
Steve Gomez ("Plaintiff"), a state prisoner incarcerated at Calipatria State Prison located in Calipatria, California, is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
Initially, Plaintiff named the County of San Diego, "Encinitas Sheriff's, " John Doe #1 and the San Diego Sheriff's Office" as Defendants in this matter. ( See ECF No. 1 at 1-2.) The Court initially dismissed Plaintiff's original Complaint with leave to amend. (ECF No. 3.) Plaintiff later filed a First Amended Complaint. (ECF No. 17.) The Court conducted the required sua sponte screening, found the excessive force claims against Defendant Carpenter survived the sua sponte screening process, dismissed all the remaining Defendants and directed the United States Marshal's Service to effect service on Defendant Carpenter. (ECF No. 18.)
Defendant Carpenter filed his Answer to Plaintiff's First Amended Complaint on January 4, 2012. (ECF No. 21.) He now moves for summary judgment pursuant to FED.R.CIV.P. 56. (ECF No. 40.) Defendant and the Court have provided Plaintiff with notice of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) (ECF Nos. 40-6, 41). Plaintiff filed his Opposition to Defendant's Motion to which Defendant has filed a Reply. (ECF Nos. 52, 53.)
II. Factual Background
A. Plaintiff's factual allegations
On July 3, 2010, Plaintiff was driving a green Ford Explorer when San Diego Deputy Sheriff Carpenter began chasing him with a patrol car. ( See FAC at 4, 10.) During this chase, Plaintiff crashed into a concrete median on the freeway. After his car came to a stop, Plaintiff claims Defendant Carpenter "accelerated his patrol car" causing it to crash in the driver's side door of Plaintiff's car. ( Id. at 11.) While Defendant Carpenter claims that "from 30 feet away" he could see Plaintiff "bend forward and reach for something underneath my person, and also reach underneath my seat for an unknown object, " Plaintiff claims that never occurred. ( Id. ) Plaintiff alleges that he "never made any kind of movement" because when he "lost control of [his] vehicle and "collided" into a concrete barrier, the air bag deployed causing him to become "wedged" between the air bag and his seat. ( Id. )
Plaintiff claims that Defendant Carpenter collided into his car with such force it caused him to "almost" be pushed "out the passenger side door." ( Id. at 12.) Defendant Carpenter allegedly pointed his handgun at Plaintiff and "ordered him to the ground." ( Id. at 13.) Plaintiff claims he complied with this order. ( Id. ) Plaintiff alleges that Defendant "grabbed Plaintiff by the shirt and slammed him face first into the concrete." ( Id. ) This was followed by Defendant Carpenter allegedly proceeding to "[jump] on Plaintiff's back, " striking Plaintiff "on the head and face area with his handgun a few times." ( Id. ) Plaintiff alleges Defendant Carpenter kept shouting to him "where is the gun" multiple times. ( Id. ) Plaintiff claims that he never had a gun either on his person or in his car. ( Id. )
B. Defendant's Response
On July 3, 2010, Defendant Carpenter was a Deputy Sheriff with the San Diego County Sheriff's Department working from the Encinitas station. (Declaration of Matthew Carpenter, ECF No. 40-2, at ¶1.) On this day, Defendant Carpenter was "working traffic duty in a patrol car." ( Id. at ¶ 2.) Defendant Carpenter alleges that he had heard a report about a "person who had been brandishing a weapon" and thereafter, he heard on the radio dispatch that a "green Ford Explorer was being pursued by Deputy Dunford." ( Id. ) Soon thereafter, he saw a green Ford Explorer pass him on the interstate as another Sheriff's patrol car driven by Deputies Billieux and Longfellow pulled up next to the Ford Explorer. ( Id. at 3.) Defendant Carpenter claims the Ford Explorer swerved into the lane with the patrol car driven by the other Deputies in an attempt perceived by Defendant Carpenter "to cause a crash or kill the deputies in the car." ( Id. ) The Ford Explorer "went out of control, struck another vehicle then crashed into the median barrier adjacent to the fast lane." ( Id. )
Defendant Carpenter declares that he activated the emergency lights and sirens on his car and positioned it to "block the fast lane near the Ford Explorer" approximately twenty five (25) feet from the Explorer. ( Id. at 4.) Defendant Carpenter declares that he saw Plaintiff "reach down for something in the area of his seat" which caused him to fear that Plaintiff was "attempting to reach a gun so he could shoot me." ( Id. ) Defendant Carpenter claims that he feared for his life and "the safety of others" so he decided to intentionally collide into the Plaintiff's Ford Explorer with his patrol car to stop Plaintiff from retrieving a weapon. ( Id. at ¶ 5.)
Defendant Carpenter claims he drew his gun, pointed it at Plaintiff and "shouted for him to get to the ground." ( Id. at ¶ 6.) Instead, Plaintiff "jumped over the concrete median divider and ran through the bushes in the median." ( Id. ) According to Defendant Carpenter, Plaintiff had his "right hand near his waistband." ( Id. ) Defendant Carpenter had been trained that the "waistband is an area where a fleeing felon could [be] carrying a gun." ( Id. )
Even after Defendant Carpenter identified himself to Plaintiff as a Deputy Sheriff and told him he would "shoot if he did not get down on the ground, " Plaintiff continued to flee. ( Id. ) Defendant Carpenter eventually caught up with Plaintiff, "grabbed him by the back of his shirt and pushed him front-first onto the ground to take him into custody." ( Id. ) Defendant Carpenter placed his knee in the middle of Plaintiff's back, "shouted to ask where the gun was, " and told Plaintiff to put his hands behind his back. ( Id. ) Deputy Longfellow ...