United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT AND MOTION FOR PARTIAL SUMMARY JUDGMENT RE:
DKT. NO. 44
A. WESTMORE United States Magistrate Judge
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.
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.)
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.)
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.
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.)
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.'" (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.
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.)
to Plaintiff, at 18:04, CSO Howe 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.)
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.)
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.)
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.(1st Am. Compl. ("FAC")
¶¶ 22-24, ¶¶ 25-27, ¶¶ 28-32.)
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.
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 ...