Lucero v. Ettare

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT AND MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DKT. NO. 44

          KANDIS A. WESTMORE United States Magistrate Judge

         On May 27, 2016, the City of Berkeley and CSO Kyle Howe moved for summary judgment and former Officer John Ettare moved for partial summary judgment. Juan Lucero, Jr. opposes the motions. The Court held a hearing on the motions on July 7, 2016. For the reasons set forth below, the motions are granted in part and denied in part.

         I. BACKGROUND

         A. Factual background

         On September 7, 2013, Juan Lucero, Jr. ("Plaintiff") attended BrewFest at the Pyramid Alehouse and Brewery in Berkeley. (Boskovich Decl., Ex. A, Lucero Dep. 21:17-22:1, Dkt. No. 52-1.) Plaintiff testified that he had 10 4-oz. samples of beer and was not drunk at the end of the event. (Id. 28:16-25, 30:11-15, 33:5-24, 40:4-10.)

         Plaintiff left the brewery and walked south towards his car. (Bourgalt Decl., Ex. A, Lucero Dep. 45:4-8, Dkt. No. 45.) There was "[s]ome kind of fight or something going on" in the street near Plaintiff's car, and a guy hit Plaintiff in the front of the neck. (Id. 48-49.) Plaintiff fell, and his younger brother intervened to defend him. (Id. 53:6-8, 66:4-7.) He watched his brother and the assailant fighting, and Plaintiff and his brother were arrested. (Id. 66:4-7, 73:1-2.)

         Plaintiff testified that an officer took him down but "[n]ot right to the ground. It was like he grabbed me and somehow we ended up by the other side of the car." (Id. 79:1-7.) He was slammed against the passenger side mirror, which broke. (Id. 75:23-76:15, 86:17-87:2.) The officer then handcuffed Plaintiff, who was arrested for public intoxication in violation of California Penal Code section 647(f). (Id. 90:5-23; Ettare Decl., Ex. A, Dkt. No. 47.) Plaintiff testified that he complained about his handcuffs hurting, and the officer did nothing. (Lucero Dep. 92:14-18.)

         Officer Ettare then walked Plaintiff back to his patrol car. (Boskovich Decl., Ex. B. Ettare Dep. 249:20-22.) Neither Officer Ettare nor Plaintiff's brother observed any indication that Plaintiff suffered any injury to his ankle. (Id. 283:18-24, 307:5-12; Boskovich Decl., Ex. C, R. Lucero Dep. 88:14-19.)

         Berkeley Fire paramedics examined Plaintiff with "a thorough head to toe performed w/o obvious evidence of trauma." (Lucero Dep. 164:11-25; Mettler Decl. ¶ 3, Ex. A, Dkt. No. 46.) The EMT report indicates that Plaintiff "had smell [sic] and admitted to drinking several beers, " that he "had what appeared to be a bloody nose and cut lip, " and that after thoroughly cleaning his face and wounds with water, he had minor abrasions near his right wrist and elbow. (Mettler Decl. ¶ 3, Ex. A.) The report also indicates that Plaintiff "was adamant that BFD were the culprits in 'taking him down' and 'beating his ass.'"^[1] (Mettler Decl. ¶ 4, Ex. A.) Officer Ettare then transported Plaintiff to Berkeley City Jail for booking. (Lucero Dep. 97:18-98:25; Ettare Dep. 98:13-15.) Plaintiff testified that he asked Officer Ettare if he could loosen the handcuffs, but his request went unanswered. (Lucero Dep. 98:18-25.) Plaintiff also testified that he was in a lot of pain due to the handcuffs. (Id. 99:8-10.)

         Plaintiff arrived at the jail, and he was placed in the same cell as his brother. (Id. 101:6-102:1.) He was not limping and had no ankle or other visible injury. (R. Lucero Dep. 86:5-10; Boskovich Decl., Ex. G, Howe Dep. 123:6-12, 126:4-6.) Plaintiff testified that he remained handcuffed, and he again complained about the handcuffs being too tight, to no avail. (Lucero Dep. 105:1-6.) Plaintiff stated that the handcuffs were so tight that they left deep marks on his wrists for several days. (Lucero Dep. 146:12-22; Bourgault Decl., Ex. C.)

         According to Plaintiff, at 18:04, CSO Howe^[2] and Officer Ettare, as well another unidentified officer, grabbed him while he was still handcuffed, picked him up, and carried him into a safety cell, where the officers proceeded to punch him, put their knees in his back, and twisted his foot until he heard his right ankle snap. (Lucero Decl. ¶ 4, Dkt. No. 52; Lucero Dep. 110:1-111:25, 115:13-22, 118:2-120:24, 123:1-124:25, 126:2-128:24; Howe Decl., Ex. C, Dkt. No. 48.) Plaintiff testified that he immediately screamed in pain and told the officers that they had injured him; he remembers being punched once or twice more before losing consciousness. (Lucero Dep. 129:1-22.)

         Plaintiff asserts that neither Officer Ettare nor CSO Howe did anything to summon medical assistance, and that Howe checked on him in the cell on several occasions and did nothing to assist him. (Pl.'s Opp'n at 4.) Plaintiff testified that when he regained consciousness, he noticed that he was dripping blood all over the place, and when he attempted to stand, he discovered that he could not bear weight on his right ankle. (Lucero Dep. 131:3-11, 138:1-13, 140:13-15, 144:3-145:10.)

         At 20:05, an officer checked on Plaintiff and discovered that he was injured, complaining of an ankle injury. (Id. 143:18-24; Howe Decl., Ex. C.) Plaintiff was removed from the cell at 21:00 and taken to Alta Bates Hospital. (Lucero Dep. 147:1-150:23; Howe Decl., Ex. C.) At the hospital, x-rays indicated that Plaintiff had a fractured ankle. (Lucero Dep. 157:22-158:4.) He also had abrasions. (Bourgault Decl., Ex. B.) That was the only visit Plaintiff had for his ankle injury even though he testified that follow-up care was recommended. (Supp. Bourgault Decl., Ex. I, Lucero Dep. 180:21-181:12, Dkt. No. 54.)

         B. Procedural background

         On June 12, 2015, Plaintiff filed his complaint against the City of Berkeley, Officer John Ettare, and CSO Kyle Howe ("Defendants"). (Compl., Dkt. No. 1.) In the operative complaint, Plaintiff asserts the following causes of action: (1) a § 1983 claim for violation of his Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendment rights, (2) a claim under § 1983 and Monell v. Dept. of Social Services, 436 U.S. 658 (1978) based on an alleged pattern of ongoing constitutional violations and practices by officers consisting of the use of unnecessary and excessive force against non-white persons, false arrests of non-white persons, and unequal law enforcement against non-white persons, and (3) a claim under § 1981 for race discrimination.^[3](1st Am. Compl. ("FAC") ¶¶ 22-24, ¶¶ 25-27, ¶¶ 28-32.)

         On May 27, 2016, the City and CSO Howe moved for summary judgment, and Officer Ettare moved for partial summary judgment. (Defs.' Mot., Dkt. No. 44.) Plaintiff filed his opposition to the motions on June 10, 2016. (Pl.'s Opp'n, Dkt. No. 52.) Defendants filed their reply on June 17, 2016. (Defs.' Reply, Dkt. No. 53.) The Court held a hearing on the motions on July 7, 2016.

         II. LEGAL STANDARD

         "A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." Fed.R.Civ.P. 56(a). Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). A dispute as ...