ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF CITY OF SAN DIEGO ON ALL CLAIMS; GRANTING DEFENDANT TERRANOVA'S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS; GRANTING IN PART AND DENYING IN PART DEFENDANTS FORTIER AND BARNUM'S MOTION FOR SUMMARY JUDGMENT
JEFFREY T. MILLER, District Judge.
Defendants City of San Diego ("City"), erroneously sued as San Diego Police Department, Kenneth Fortier, erroneously sued as Officer Forpier, and Tobia Terranova (collectively "City Defendants") move for summary judgment on Plaintiff Bereket Demsse's civil rights complaint. Defendant Brian Barnum ("Barnum") separately moves for summary judgment or, alternatively, for judgment on the pleadings. Plaintiff opposes both motions. For the reasons set forth below, the court grants summary judgment in favor of City and Terranova on all state and federal claims, and grants in part and denies in part the motion for summary judgment brought by Defendants Fortier and Barnum.
The First Amended Complaint
On November 28, 2012, Plaintiff filed the operative First Amended Complaint ("FAC") alleging five causes of action for assault, battery, intentional infliction of emotional distress, violation of 42 U.S.C. §1983, and violation of Cal. Civil Code Section 52.1. (Ct. Dkt. 20). Plaintiff's claims arise from events occurring on the evening of July 22, 2011. Plaintiff "was socializing with several of his friends at Colina Park" in San Diego, California when six or seven police cars arrived. (FAC ¶¶10-12). The police officers approached the group, allegedly asked the group who was on probation or parole, and then told the group "to line up." (FAC ¶14).
When Defendants approached the group, Plaintiff, a paraplegic confined to a wheelchair, was seated on the grass where his friends had placed him. Plaintiff, who was not on parole or probation, allegedly "explained to the Defendants he could not line up because he was a paraplegic and the wheelchair belonged to him." (FAC ¶15). The Defendants then "picked the Plaintiff up off the ground into the air [and] proceeded to drop him on the pavement." (FAC ¶16). Plaintiff allegedly suffered injuries requiring medical treatment.
The Evidentiary Record
On July 22, 2011 at around 7:30 p.m., Detective Hobbs of the San Diego gang unit observed about 15 males in Colina Park. Colina Park is a known hangout for gangs, in particular East African gangs. (Hobbs Depo. 5:5-15; 8:19-9-8; 21:7-16). Detective Hobbs reported by radio that he needed assistance from the gang suppression unit in contacting the group of men. (Id. 15:7-21). While he believed that certain individuals were drinking cans of beer, he did not inform dispatch of this fact. (Id. at 28:1-4). However, he informed the officers on site that the individuals appeared to be drinking alcohol. (Terranova Depo. 10:9-14; Fortier Depo. 7:25-8:20).
Detective Hallahan monitors the East African gangs in San Diego. (Terranova Depo. 6:23-8-23). About one to 14 days before July 11, 2011, Detective Hallahan provided a briefing to the gang suppression team of the San Diego Police Department wherein he stated that he had information that an East African male, in a wheelchair, was carrying a concealed gun in the wheelchair, possibly in the seat pad. (Hallahan Depo. 21:6-22:7; Terranova Depo. 7:14-9:12; Fortier Depo 12:1-25; 13:7-14:1).
The officers approached the group with the intention of talking to them. Officer Fortier, the supervisor of the gang unit, testified that the officers intended the contact with the group to be voluntary and did not intend to detain anyone. (Fortier Depo. 25:4-20). The individual seated in the wheelchair was Anyle Farah. Probation officer Barnum knew that Farah was on probation. (Barnum Depo. 55:21-25). Mr. Farah was asked to stand and then officers conducted a pat down search. Officer Terranova testified that, as a probationer, Mr. Farah had signed a Fourth Amendment waiver. (Terranova Depo. 25:3-4). A backpack hanging on the back of the wheelchair was also searched by Officer Terranova. As he was searching the backpack, Officer Terranova testified that Plaintiff began yelling and stated that the backpack was his and that he didn't want it searched. (Terranova Depo. 34:4-35:22). No weapons were found.
As Officer Terranova continued to search the backpack and wheelchair, Plaintiff "was upset and angry and yelling at us the whole time." (Terranova Depo. 36:14-17). He then noticed that Plaintiff was sitting on something. He thought it was a black bag with a zipper going across it. Once Officer Terranova pointed out what he believed to be a black bag, Officers Fortier and Barnum walked over to Plaintiff and lifted him off the bag. The officers lifted Plaintiff up about six inches from the ground. Plaintiff was lifted by his armpits, the bag removed, and Plaintiff placed on the ground. (Terranova 37:4-38:7). Once the object was removed from underneath Plaintiff, the officers noted that it was a pillow or cushion to a chair. Sergeant Fortier then used his baton to probe the cushion for any hard objects that night be secluded there. No objects were found. Id . Officer Terranova testified that Plaintiff was not suspected of committing a crime and he was not detained. At about this time, the officer realized that the wheelchair belonged to Plaintiff.
One of the individuals at the park, Guled Ali, testified that the officers lifted Plaintiff about 4-5 feet above the ground and then dropped him where he landed partially on the pavement. (Ali Decl. ¶12). Mr. Ali heard one of the officers say, "I've seen him walk before." Id . Plaintiff was in obvious pain and asked for an ambulance. One of the officers said "your not hurt" (sic) and another said "smoke some weed, you'll be fine." Id . ¶13. Plaintiff testified that he did not know how high he was lifted by the officers but it was about five feet. (Demsse Depo. 82:4-83:1). He was held in the air about three to five seconds before he was dropped on the ground. Plaintiff testified that the officers moved him about three feet before dropping him on the concrete pavement where he was injured. (Demsse Depo. 86:6-19).
When Plaintiff said he was in pain, Officer Fortier offered to call medical assistance. Plaintiff initially declined the offer of assistance but later requested medical assistance. No one was arrested or cited for criminal conduct.