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Ortega v. Mattocks

United States District Court, N.D. California

December 22, 2014

MATTOCKS, et al., Defendants

Carlos Armando Ortega, Plaintiff, Pro se, Napa, CA.

For Mattocks, S.J.P.D. Officer, #3861, Benitez, S.J.P.D. Officer, #3828, Scherry, S.J.P.D. Officer, #3822, Ubarre, S.J.P.D. Officer, #3830, Hunt, S.J.P.D. Sergeant, #2975, Defendants: Shannon Smyth-Mendoza, LEAD ATTORNEY, Office of the City Attorney, San Jose, CA.


JACQUELINE SCOTT CORLEY, United States Magistrate Judge.


Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983 against officers of the San Jose Police Department, attorneys for the Santa Clara County Public Defender's Office, a private defense attorney, and investigators for the Santa Clara County District Attorney's Office.[1] The Court found cognizable Plaintiff's claims that the police officers (Officer Mattocks, Officer Benitez, Officer Scherry, Officer Ubarre and Sergeant Hunt) used excessive force during his arrest and thereafter filed false reports about the incident, and dismissed the remaining claims because they did not state cognizable grounds for relief under Section 1983.

The police officer defendants (hereinafter " Defendants") were served by the United States Marshal and filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the claims are untimely. The motion to dismiss was denied. Defendants then filed a motion for summary judgment with supporting declarations and exhibits. Plaintiff filed a brief in which he opposes Defendants' motion and also moves for summary judgment in his favor. Defendants filed a reply brief. Plaintiff thereafter wrote a letter to the Court requesting a subpoena duces tecum. For the reasons discussed below, Defendants' motion for summary judgment is GRANTED, and Plaintiff's motion for summary judgment and request for a subpoena are DENIED.


Plaintiff sets forth his account of the events in his verified complaint (dkt. 1, hereinafter " Compl.") and his combined opposition and cross-motion for summary judgment[2] (dkt. 29, hereinafter " Opp.") and supporting exhibits (dkt. 28). Defendants arrested him shortly after midnight on March 22, 2007, in San Jose, California, after he got into a fight with his brother, Alex Rocha. (Compl. at 3.) Plaintiff had been homeless and was staying in a van in the driveway of Rocha's house. (Id. at 3-5.) Rocha and Plaintiff had a dispute over money, and Rocha turned off the electricity to the van. (Id. at 5-6.) Plaintiff and Rocha cursed at each other, Plaintiff broke two windows in the van with a hammer, and then he began to walk away. (Id. at 6.) Rocha hit Plaintiff with a broomstick four times, making it difficult for Plaintiff to stand and walk. (Id.; Opp. at 4.) Plaintiff took the broom away from Rocha, and walked around the corner with the broom and hammer in his hands. (Id.; Compl. at 7.) Plaintiff saw a police car pass by two streets away and threw the hammer and broom into a bush. (Opp. at 4.) The police car then arrived and Officer Mattocks got out of his car and pointed his gun at Plaintiff from about 15-25 feet away. (Id. at 4-5; Compl. at 7.) Plaintiff screamed " shoot me." (Compl. at 7.) Mattocks initially told Plaintiff not to move, and then he switched to a Taser gun and told Plaintiff to approach. (Id.; Opp. at 5.) Plaintiff initially yelled back that he was injured and could not stand and walk, but he then limped 6-8 feet towards Mattocks. (Opp. at 5.) Then Mattocks ordered him to stop and get down slowly, and Plaintiff did so, but while he was getting down to the ground, Mattocks tasered him for 15 seconds. (Compl. at 7; Opp. at 5.) Plaintiff yelled, " O.K. O.K., " and once he got down, Mattocks struck him on the lower back with his baton one time. (Compl. at 7; Opp. at 5.) Other officers then arrived and Plaintiff was handcuffed and taken to the emergency room. (Opp. at 6.)

Plaintiff alleges that he suffers severe back pain to this day. (Compl. at 8.) Plaintiff asserts that Officers Mattocks, Benitez, Scherry, Ubarre and Hunt falsely reported that Plaintiff had tried to get up and grab the broom before Mattocks tasered and struck him. (Compl. at 8.) Plaintiff further alleges that he suffers from " bipolar shizoaffective disorder, " that at the time of the incident he had not taken his medication for three days because he believed that " people were trying to kill him and his family, " and that he was on parole following his release from Atascadero State Hospital four months earlier. (Compl. at 3-4.)

In support of their summary judgment motion, Defendants submit declarations by Mattocks and Benitez. At the time of the arrest, Sergeant Hunt was the supervisor of Mattocks, Benitez and the other officer defendants. (Mattocks Decl. ¶ 7.) Mattocks and Benitez were in uniform and each driving their own marked police car when a dispatcher reported that a man had attacked his brother and broken windows with a hammer. (Id. at ¶ ¶ 7-8; Benitez Decl. ¶ ¶ 6-7.) Mattocks got to the scene first, and he saw Plaintiff carrying a broom and hammer. (Mattocks Decl. ¶ ¶ 9-10.) He got out of his car about 12-15 feet away from Plaintiff, and Plaintiff dropped the hammer on the ground. (Id. at ¶ ¶ 10-11.) According to Mattocks, Plaintiff approached him with the broom held high. (Id. at ¶ 11.) Mattocks pointed his gun at Plaintiff and ordered him to drop the broom and lie down, but, according to Mattocks, Plaintiff shook his fist, continued to approach Mattocks with the broom in his hand, and yelled, " Fuck you, motherfucker. Fucking shoot me." (Id. at ¶ ¶ 12-13.) Mattocks called for backup, and Plaintiff dropped the broom, swung his arm and did not get down. (Id. at ¶ ¶ 14-15.) Officer Benitez then arrived and got out of his car, and he states that Plaintiff, with his broom and hammer at his feet, shook his fists, shouted obscenities, moved towards Mattocks, and did not follow Mattocks's orders. (Benitez Decl. ¶ ¶ 9-13.)

Mattocks and Benitez state that for " several minutes" Plaintiff shouted obscenities and did not follow orders to get down, and Benitez states that Plaintiff then resumed advancing towards Mattocks. (Id. ¶ 15; Mattocks Decl. ¶ 16.) Mattocks replaced his gun with a Taser gun, which he fired at Plaintiff from approximately five feet away for approximately 15 seconds, and Plaintiff immediately fell to the ground. (Mattocks Decl. ¶ 16; Benitez Decl. ¶ 15.) Plaintiff began to " struggle and resist" their efforts to arrest him, and he tried to get to his knees and reach for the broom. (Mattocks Decl. ¶ 18; Benitez Decl. ¶ 16.) Benitez then struck Plaintiff once on his back with his baton and used his knee to hold Plaintiff down. (Mattocks Decl. ¶ 18; Benitez Decl. ¶ 16.) Plaintiff stopped resisting, Defendant Scherry arrived, and the three officers handcuffed Plaintiff. (Mattocks Decl. ¶ 19.) Benitez states that Plaintiff had no visible injuries and did not complain of pain, but Mattocks states that Plaintiff complained of pain in his leg and back. (Mattocks Decl. ¶ 23; Benitez Decl. ¶ 20.) Defendants Hunt and Ubarre arrived shortly after and began their investigation. (Benitez Decl. ¶ ¶ 20, 22.) Mattocks then drove Plaintiff to the hospital for examination, and later that day, Plaintiff was booked into the Santa Clara County Main Jail. (Mattocks Decl. ¶ 23.)

Plaintiff was charged in Santa Clara County Superior Court with resisting, obstructing, or delaying a police officer (Cal. Pen. Code § 148), for assault with a deadly weapon (Cal. Pen. Code § 245), and for vandalism (Cal. Pen. Code § 594). Plaintiff pled no contest to these charges in July 2013, over six years later. (Defs. Request for Judicial Notice Exh. A.) His current incarceration is based on that conviction.


Defendants argue that Plaintiff may not pursue his claims because, if successful, they would necessarily implicate the validity of his conviction for resisting arrest. A plaintiff may not recover damages for " harm caused by actions whose unlawfulness would render a conviction or sentence invalid" unless he or she can prove that the conviction or sentence has been overturned, expunged or declared invalid. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The test is " whether a ...

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