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Solomon v. City of South Lake Tahoe

United States District Court, E.D. California

November 14, 2014

PATRICK WAYNE SOLOMON, an individual, Plaintiff,
v.
CITY OF SOUTH LAKE TAHOE; CITY OF SOUTH LAKE TAHOE POLICE DEPARTMENT; OFFICER J. HERMINGHAUS, individually and in his official capacity; COUNTY OF EL DORADO SHERIFF'S DEPARTMENT; OFFICER BRANDON PINA, individually and in his official capacity; and DOES 1-10, inclusive, Defendants.

ORDER GRANTING DEFENDANTS CITY OF SOUTH LAKE TAHOE'S AND CITY OF SOUTH LAKE TAHOE POLICE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT JAKE HERMINGHAUS'S MOTION FOR SUMMARY JUDGMENT

GARLAND E. BURRELL, Senior District Judge.

Defendants City of South Lake Tahoe, the City of South Lake Tahoe Police Department (the "City") and Officer Jake Herminghaus ("Herminghaus") (collectively the "Defendants") move for summary judgment, or in the alternative, for summary adjudication of the issues, under Federal Rule of Civil Procedure ("Rule") 56(c). (Mot. Summary Judgment ("Mot."), ECF No. 43.)

Plaintiff's Complaint is comprised of the following federal claims: (1) use of excessive force; (2) false arrest; (3) malicious prosecution; (4) fabrication of false evidence; (5) conspiracy; and (6) failure to implement appropriate policies, customs and practices; and failure to train. (Compl., ECF No. 1.)

I. Legal Standard

The movant for summary judgment must establish "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

If the movant satisfies its "initial burden, " "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987) (quoting former Fed.R.Civ.P. 56(e)). If the burden shifts to the nonmovant, the nonmovant "cannot rest upon... mere allegations' but must instead produce evidence that set[s] forth specific facts showing that there is a genuine issue for trial.'" Tucker ex rel. v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2003) (citing Anderson, 477 U.S. at 248) (alterations in original).

Further, Local Rule 260(b) prescribes:

Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

If the nonmovant does not "specifically... [controvert duly supported] facts identified in the [movant's] statement of undisputed facts, " the nonmovant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).

Because a district court has no independent duty "to scour the record in search of a genuine issue of triable fact, " and may "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, "... the district court... [is] under no obligation to undertake a cumbersome review of the record on the [nonmovant's] behalf.

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)).

II. FACTUAL BACKGROUND[1]

The following facts are uncontroverted in the summary judgment record. On January 21, 2011, Plaintiff approached off-duty correctional officer Pina at a Raley's grocery store in South Lake Tahoe. (Dep. Patrick Solomon ("Solomon Dep. Tr.") 22:14-17, ECF Nos. 43-2 & 45-1; Dep. Brandon Pina ("Pina Dep. Tr.") 39:2-3, ECF Nos. 43-3 & 45-2.) Plaintiff knew from prior incarcerations that Pina was a correctional officer. (Pl. Resp. Undisp. Facts 2:3-6, ECF No. 46.)

Plaintiff made physical contact with a portion of Pina's body from behind. (Solomon Dep. Tr. 22:14-17, 25:14-17; Pina Dep. Tr. 39:2-3; Pina Trial Tr. 6:12-18, ECF No. 45-3.) Pina subsequently phoned the South Lake Tahoe Police Department and told the police dispatch, "Hey, this is... Officer Pina from the jail. I'm over at... the Raley's [grocery store]... I just had an inmate, Patrick Solomon, come up and start pushing me. I was wondering maybe you could send a car over." (9-1-1 Recording ("911 Tr.") 1:3-7, ECF No. 45-4; Pina Dep. Tr. 40:22-25, 41:10-42:2; Pina Trial Tr. 41:15-17.) The dispatcher then spoke with Herminghaus, an officer with the City of South Lake Tahoe Police Department, and told him, in pertinent part, "RP works at the jail and an ex-inmate came up and started pushing him." (Police Dispatch Recording ("Dispatch Tr.") 1:2-4, ECF No. ...


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