United States District Court, E.D. California
MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT
WILLIAM B. SHUBB, District Judge.
Plaintiff Harrison Orr brought this civil rights action against defendants California Highway Patrol (CHP), the State of California, and Officers Brame and Plumb, alleging that his arrest on August 6, 2013 violated state and federal law. (See First Am. Compl. ("FAC") (Docket No. 5).) Presently before the court are plaintiff and defendants' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.
I. Factual and Procedural Background
Plaintiff is a resident of Citrus Heights, California. (Orr Dep. at 12:15-13:2, 21:1-5 (Docket No. 54-1).) In September of 2006, plaintiff suffered a brain-stem stroke that forced him to retire from his job at a money-management firm. (Id. at 21:18-22:10.) Later, in June 2013, plaintiff suffered transient ischemic attacks or "mini strokes." (Orr Dep. at 39:19-22; Helm Decl. Ex. 6 ("June 2006 Discharge Summary") (Docket No. 54-6).) The strokes left plaintiff with facial droop, slurred speech, and balancing problems that require him to use a cane. (Orr Dep. at 26:11-25; Helm Decl. Exs. 11, 14 (Docket Nos. 54-10, 54-13).) At the time of his arrest in August 2013, plaintiff was 76 years old.
On August 6, 2013, plaintiff was driving his grey 2005 Toyota southbound on the Interstate 80 Business Loop ("I-80 Business") to his former home in South Sacramento. (Orr Dep. at 44:10-45:7; Helm Supp. Decl. Ex. 45.) At that time, Officer Brame was driving a marked patrol car southbound on I-80 Business to transport an arrestee to the Sacramento County Jail. (Brame Dep. at 63:13-64:5, 65:9-67:9.) Brame pulled up directly behind plaintiff in the left lane and noticed that plaintiff appeared to be driving too slowly. (Id. at 67:17-19; Orr Dep. at 62:11-63:23.) After observing plaintiff make what he believed were several erratic moves, Brame pulled plaintiff over. (See id. at 87:13-14.)
Brame collected plaintiff's license and registration and asked plaintiff to get out of the car. (Orr Dep. at 53:19-22.) When plaintiff asked what the matter was, Brame asked plaintiff if he had been drinking, and plaintiff replied that he had not. (Id. at 53:22-54:1.) Brame also asked plaintiff if he had taken any drugs or medications that day, and plaintiff responded that he had taken medication for his heart before he left home. (Orr Dep. at 56:15-21.) It is disputed whether plaintiff also informed Brame that he had suffered a stroke. While plaintiff states he repeatedly informed Brame about the stroke, (Orr Dep. at 56:18-57:6), Brame states plaintiff informed him that he had a neurological condition but does not recall whether plaintiff actually used the word "stroke, " (Brame Dep. at 103:15-21).
Brame became increasingly suspicious of plaintiff after performing two sobriety tests, both of which plaintiff failed. (See Brame Dep. at 91:20-24, 101:3-102:18.) Brame also noticed that plaintiff's speech was slurred and his pupils were constricted. (Id. at 119:15-19.) Brame called CHP to request that they send someone with a breathalyzer test, and Officer Plumb soon arrived with the equipment at the scene. (Id. at 132:25-133:5.) The result of plaintiff's test was zero, ruling out alcohol. (Brame Dep. at 107:21-22, 108:1-4.)
Still suspicious that plaintiff could be under the influence of drugs, Brame and Plumb decided to place plaintiff under arrest for driving under the influence. (Id. at 118:23-119:1.) Brame made arrangements for a certified drug recognition expert to conduct a further evaluation of plaintiff at the CHP office to rule out whether or not drugs were the cause of his appearance and behavior. (Id. at 116:19-22.)
Plaintiff initially cooperated with the arrest. However, when Brame informed plaintiff that he would have to be handcuffed, plaintiff states he told the officers that he could not be handcuffed because he had problems balancing. (Orr Dep. at 63:3-4.) After some discussion, plaintiff and the officers reached an impasse. Plumb communicated to Brame that they would need to take plaintiff down, and in a matter of seconds Plumb punched plaintiff in his right ribs and knocked him to the ground. (Orr Dep. at 65:12-20; Plumb Dep. at 30:23-25.) The officers handcuffed plaintiff behind his back and lifted plaintiff off the ground. (Orr Dep. at 70:18-23; Brame Dep. at 152:22-153:2.)
Sargeant Kelly, who had arrived at the scene, transported plaintiff to the CHP office. (Kelly Dep. at 14:8-10 (Docket No. 54-4).) There, Officer Hannem performed an hour-long drug-recognition evaluation on plaintiff and ultimately determinaed plaintiff was a "medical rule-out, " meaning that in his opinion, plaintiff's condition was due to a medical condition as opposed to drug use or alcohol. (Id. at 54:14-17, 58:6-12.)
At 4:40 p.m. plaintiff was booked at the Sacramento County jail for willfully resisting an officer in violation of California Penal Code section 148(a). (Helm Decl. Ex. 19 at 8 (Docket No. 54-18) (noting plaintiff was transported to Sacramento County Jail and booked for a "148(a) PC at 1640 hours").) Plaintiff was released sometime between 12:30 and 1 a.m. (Orr Dep. at 89:18-21.)
As a result of his arrest, plaintiff asserts he sustained substantial bruising to his body, endured pain, and took six to seven weeks to heal. (Orr Dep. at 32:25-33:2, 92:23-102:4; Helm Decl. Ex. 33.) Plaintiff brought claims against Officers Brame and Plumb for (1) unreasonable search and seizure and excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983; (2) interference with plaintiff's enjoyment of his rights, Cal. Civ. Code § 52.1; (3) interference with plaintiff's right to be free from violence or intimidation, Cal. Civ. Code § 51.7; (4) assault and battery; (5) negligence; (6) Elder Abuse, Cal Welfare & Insts. Code § 15610.07; and (7) false arrest. (See First Am. Compl. (Docket No. 5).) Plaintiff also brought claims against the California Highway Patrol and the State of California under the American with Disabilities Act ("ADA") and Rehabilitation Act ("RA"). Both parties both move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Because plaintiff does not contest summary judgment on his claim under section 51.7, the court need not discuss it and will enter judgment in favor of defendants on that claim accordingly.
II. Defendants' Request for Judicial Notice
Federal Rule of Evidence 201 permits the court to take judicial notice of a fact not subject to reasonable dispute because either it "(1) is generally known within the  court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).
Defendants request that the court take judicial notice of the "fact" that expert Roger Clark's opinions as a Police Procedures Consultant have been found to be ipse dixit in a number of cases decided in various federal district and appellate courts. (See Defs.' Req. for Judicial Notice at 1-3 (Docket No. 58).) Other courts' discussions of Clarks' opinions in other cases are not a proper subject for judicial notice. While a court may take judicial notice of another court's opinion, it may do so for the existence of the opinion only, and not for the truth of the facts recited therein. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001), impliedly overruled on other grounds as discussed in Gallardo v. Dicarlo, 203 F.Supp.2d 1160, 1162 n.2 (C.D. Cal. 2002). Furthermore, whether in other cases courts have found Clark's opinion to be ipse dixit has no bearing on the instant case with its particularized facts and circumstances.
A. Summary Judgment Standard
Summary judgment is proper "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). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment...." Id. On cross-motions for summary judgment, the court "must review the evidence submitted in support of each cross-motion [in a light most favorable to the non-moving party] and consider each party's motions on their own merits." Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1097 (W.D. Wash. 2004).
Both parties filed formulaic and conclusory objections to evidence submitted by the other party. "Objections to evidence on the ground that the evidence is irrelevant, speculative, argumentative, vague and ambiguous, or constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself." Century 21 Real Estate LLC v. All Prof'l Realty, Inc., 889 F.Supp.2d 1198, 1215 (E.D. Cal. 2012) (citing Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1119-20 (E. D. Cal. 2006)). "Similarly, statements based on speculation, improper legal conclusions, personal knowledge, or argumentative statements are not facts and can only be considered as arguments, not as facts, on a motion for summary judgment." Id.
In the interest of brevity, the court will not review the substance or grounds of the individual objections here. The parties' objections are all overruled.
B. Section 1983 Claims for Violation of the Fourth Amendment
Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by... the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Plaintiff's § 1983 claims against Brame and Plumb are based on their alleged unlawful arrest of plaintiff and their use of excessive force in violation of the Fourth Amendment. (See FAC ¶ 35.)
1. Unlawful Arrest
a. The Violation
The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits searches and arrests without probable cause. Beck v. Ohio, 379 U.S. 89, 90-91 (1964); McKenzie v. Lamb, 738 F.2d 1005, 1007-08 (9th Cir. 1984). "The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime.'" Maryland v. Pringle, 540 U.S. 366, 370 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).
"Probable cause exists when, under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime." United States v. Ortiz, 427 F.3d 567, 573 (9th Cir. 2004). "While conclusive evidence of guilt is of course not necessary under this standard to establish probable cause, [m]ere suspicion, common rumor, or even strong reason to suspect are not enough.'" United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (quoting McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)). "The probable cause inquiry is an objective one, focusing on the facts known to the officer at the scene." Fowler v. Cal. Highway Patrol, Civ. No. 3:13-1026, 2014 WL 1665046, at *6 (N.D. Cal. Apr. 25, 2014) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). "The arresting officers' subjective intention... is immaterial in judging whether their actions were reasonable for Fourth Amendment purposes." Lopez, 482 F.3d at 1072.
Once there is probable cause for an arrest, it can dissipate:
If probable cause is established at any early stage of the investigation, it may be dissipated if the investigating officer later learns additional information that decreases the likelihood that the defendant has engaged, or is engaging, in criminal activity. A person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated. "As a corollary... of the rule that the police may rely on the totality of facts ...