United States District Court, C.D. California
Lilton Dooley, an individual, Plaintiff, Pro se, Stockton, CA.
For City of Long Beach, Long Beach Police Department, Defendants: Monte H Machit, Long Beach City Attorney's Office, Long Beach, CA; Theodore B Zinger, City Attorney's Office of Long Beach, Long Beach, CA.
For Officer Keith Mortensen, Officer, Defendant: Theodore B Zinger, City Attorney's Office of Long Beach, Long Beach, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RALPH ZAREFSKY, UNITED STATES MAGISTRATE JUDGE.
Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Report and Recommendation to the Honorable John F. Walter, United States District Judge. The pro se, incarcerated plaintiff, Lilton Dooley, alleges that a " Doe officer" of the Long Beach Police Department (LBPD), now identified as Keith Mortensen, used excessive force against him while transporting him to jail. Defendants have moved for summary judgment. Plaintiff has failed to submit a proper opposition citing evidence of a material factual dispute, even though the Court gave him numerous extensions and detailed instructions. As further explained below, the Court should grant Defendants' motion and dismiss the action (1) with prejudice as to the moving defendants, Mortensen and the City of Long Beach, and (2) without prejudice as to the never-appearing Doe defendants.
BACKGROUND: PARTIES, ALLEGATIONS AND CLAIMS
Plaintiff Lilton Dooley is a state inmate. Now pro se, he was represented by counsel from the June 2013 outset of this action through February 2014. He sues the City of Long Beach (the City) and ten Doe police officers for an alleged beating at the hands of one Doe officer. One officer has been identified as Keith Mortensen. No defendants other than the City and Mortensen have appeared.
B. Summary Of Allegations
The following summary largely assumes the truth of Plaintiff's allegations solely for the purpose of briefly framing the current motion. Of course, Defendants' current motion tests those very allegations.
On May 7, 2012, Officer Mortensen was driving an LBPD car transferring Plaintiff to the Los Angeles County jail. Plaintiff sat in the rear of the car, handcuffed with his hands behind his back. After driving some distance northbound on the 710 freeway, Mortensen pulled over to the shoulder. (Unmentioned in the complaint, but undisputed as noted below, is that Plaintiff had just kicked out the rear passenger window of the patrol car in an escape attempt -- just as he had sought to do on the prior day, as Mortensen knew.) Mortensen removed Plaintiff from the car with Plaintiff's hands still handcuffed behind his back. Mortensen and Doe LBPD officers kicked and punched Plaintiff, injuring him, and yelling such racial slurs as " nigger" and " monkey." (Plaintiff is black.) See Comp. ¶ ¶ 6-11.
Plaintiff enumerates the following claims against the following defendants. Some claims contain an uncertain array of subclaims and overlap with other claims:
1. " Federal civil rights" violation(s) pursuant to 42 U.S.C. § 1983 by Mortensen and the never-appearing Does. This is a poorly pleaded claim, even though it was drafted by counsel. The only clearly-asserted basis for this claim is excessive force against an arrestee in violation of the Fourth Amendment, see Comp. ¶ 18, but it is unclear whether Plaintiff intends improper, additional bases. Claim 1 incorporates earlier allegations referring to racially discriminatory statements, see Comp. ¶ ¶ 4(d) (citing Equal Protection Clause), 10 (racial slurs during beating), 14 (incorporating into Claim 1). Claim 1 includes other terms of art suggesting additional bases for the claim, such as " unlawful search and seizure, cruel and unusual punishment and violation of due process, " Comp. ¶ 21; and the allegation that the Doe officers were " deliberately indifferent to his physical security, " Comp. ¶ 23. The Court interprets this claim as asserting only a Fourth-Amendment-based claim of excessive force against an arrestee.
2. Racial harassment in violation of Cal. Civil Code § § 51.7 and 52 (the Ralph Civil Rights Act) by Mortensen and the never-appearing Does.
3. Attempted racist interference with civil rights in violation of Cal. Civil Code § 52.1 (the Bane Civil Rights Act) by Mortensen and the never-appearing Does.
4. Assault by all Defendants.
5. Battery by all Defendants.
6. Negligence by all Defendants.
A. General Standard Of Review And The Parties' Shifting Burdens
" The 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). The party seeking summary judgment bears the initial responsibility of showing there is no genuine issue for trial, before the nonmoving party must introduce evidence. But the moving party is not initially required to introduce evidence negating an element on which the non-moving party will bear the burden of proof at trial (although the moving party may, and often does, do so). Rather, the moving party need only point out to the Court that, on at least one such element, no evidence supports the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994).
Once the moving party meets its initial burden, the nonmoving party may not rest upon the mere allegations or denials of his pleading but rather must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment will not lie if the dispute about a material fact is " genuine" -- that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, supra, 477 U.S. at 248. A " material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. T.W. Electrical Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, ...