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Yousif v. Deputy Sheriff Defrance McLemore

United States District Court, N.D. California

March 23, 2017

OSMAN YOUSIF, Plaintiff,
v.
DEPUTY SHERIFF DEFRANCE McLEMORE and DOES 1-100, Defendant.

          ORDER GRANTING DEFENDANT McLEMORE'S MOTION FOR SUMMARY JUDGMENT

          WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this action for wrongful arrest and excessive force, the sole remaining defendant moves for summary judgment or, in the alternative, terminating sanctions. To the extent stated below, defendant's motion for summary judgment is Granted.

         STATEMENT

         Defendant Defrance McLemore served as a sheriff's deputy in the San Mateo County Sheriff's office. Deputy McLemore knew of plaintiff Osman Yousif as someone who had been charged and convicted of criminal activity, who associated with known criminal suspects, such as Gilberto “Colla” Flores, and who frequently interfered with law enforcement activity (McLemore Decl. ¶ 8).

         On September 20, 2015, Deputy McLemore was on patrol duty in a marked vehicle at a shopping center in Half Moon Bay. At 10:45 p.m., he observed a white vehicle parked in a lot behind one of the two stores that remained open at the time - a lot he knew to be the locus of criminal activity. Deputy McLemore approached the white vehicle with the goal of speaking with its occupants, though he did not activate his patrol lights (McLemore Dep. at 17-19).

         As Deputy McLemore approached, the white vehicle departed and headed towards the entrance of the second store that remained open. Deputy McLemore pursued. When the white vehicle arrived at the entrance to the second location, the individual in the passenger seat exited the vehicle and entered the store. Deputy McLemore recognized the passenger as Yousif (id. at 23-26; McLemore Decl. ¶ 7).

         Deputy McLemore then heard the white vehicle accelerate quickly towards the exit of the parking lot at speeds in excess of fifty miles per hour, which he determined constituted driving recklessly in violation of California law. Deputy McLemore activated his siren and lights and again pursued the white vehicle. After a brief pursuit, the driver exited the vehicle and ran back toward the store Yousif had entered. Deputy McLemore requested backup and chased the driver, while shouting verbal commands to him to get on the ground (McLemore Dep. at 27-28; McLemore Decl. ¶¶ 10-11). Deputy McLemore eventually caught the driver, who was later identified as Yousif's known criminal associate, Flores, and brought him to the ground. As Deputy McLemore struggled to gain control of Flores, backup arrived and helped place handcuffs on Flores (McLemore Decl. ¶¶ 11-12; McLemore Dep. at 33).

         Yousif observed this altercation and approached, pointing a camera in the direction of one of the deputy's patrol cars. He pulled out a camera and asked “What's going on?” even as Deputy McLemore and the backup officer struggled to handcuff Flores and search him (Yousif Dep. at 22, 61; Council Decl. ¶ 6). Yousif's nearness led Deputy McLemore to release his hold of Flores, who continued to resist the backup officer's search. Deputy McLemore instructed Yousif to turn around and put his hands on his back, but Yousif continued to approach (McLemore Dep. at 34-35; Yousif Dep. at 27, 211).

         Deputy McLemore removed his taser from its holster, turned it on, and pointed it towards Yousif, who continued to refuse to turn around and place his hands on his head and who was holding an object in his hand that Deputy McLemore could not identify. Once Yousif was close enough, Deputy McLemore determined Yousif was not an active safety threat and deactivated his taser without discharging it. Deputy McLemore continued to direct Yousif to get on the ground and place his hands behind his back, to no avail. Deputy McLemore grabbed Yousif's left arm and attempted to move Yousif to the ground in order to place him under arrest. Deputy McLemore, with the assistance of the backup officer, then managed to get Yousif in a wrist lock, apply handcuffs, and conduct a search. Deputy McLemore then informed Yousif he was under arrest for violating Section 148 of the California Penal Code, which prohibits “willfully resist[ing], delay[ing], or obstruct[ing], any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . .”

         Meanwhile, Flores fled the scene, though Deputy McLemore and his backup eventually found Flores behind one of the stores in the shopping center (Council Decl. ¶ 12).

         Yousif was transported to a police station. At the station, Deputy McLemore observed Yousif repeatedly raise his legs off the ground then slam them to the ground violently and overheard Yousif repeat “I want to kill myself” among other self-harm statements (McLemore Dep. at 63; Yousif Dep. at 169). Based on Yousif's behavior, Deputy McLemore believed plaintiff to be a danger to himself and referred Yousif to assessment by medical professionals pursuant to Section 5150 of the California Welfare & Institutions Code (McLemore Decl. ¶ 20).

         Yousif, at first proceeding pro se, commenced this action in October 2015. His initial complaint related to six different encounters with the police (including the above-described encounter) and named a litany of defendants. Several defendants moved to dismiss (Dkt. Nos. 19-20, 23). He then obtained counsel and sought leave to file an amended complaint (Dkt. Nos. 27, 29). Yousif's attorney missed the deadline to file his amended complaint three times. Nevertheless, several extensions were granted and he met the fourth deadline set (Dkt. Nos. 34-35). The motions to dismiss were denied as moot (Dkt. No. 36). Several defendants then moved to dismiss the amended complaint (Dkt. Nos. 37-38). On the morning that his oppositions were due, Yousif's counsel sought an extension, which was granted (Dkt. No. 42).

         An order granted in part and denied in part two separate motions to dismiss (Dkt. No. 54). That order allowed Yousif's claim against Deputy McLemore and another officer to survive and allowed him to seek leave to amend his claims as to the other defendants. Yousif did not timely seek leave to amend, ...


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