United States District Court, N.D. California
LOURDES A. ACASIO, Plaintiff,
OFFICER PATRICK LUCY, Defendant.
ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON
CERTAIN AFFIRMATIVE DEFENSES Re: Dkt. Nos. 98, 102
JACQUELINE SCOTT CORLEY United States Magistrate Judge
Lourdes Acasio alleges that Defendant San Mateo County
Sheriff Correctional Officer Patrick Lucy violated her civil
rights by injuring her during post-arrest booking procedures
in the county jail. Now pending before the Court is
Defendant's Motion for Summary Judgment (Dkt. No. 98) and
Plaintiff's Motion for Partial Summary Judgment on
Certain Affirmative Defenses (Dkt. No. 102). After
considering the parties' submissions and having had the
benefit of oral argument on April 6, 2017, the Court DENIES
Defendant's motion and GRANTS Plaintiff's motion as
set forth below.
Summary Judgment Evidence
Policies at Maguire Correctional
case involves an incident that occurred while Plaintiff was
booked into custody at the Maguire Correctional Facility in
San Mateo County. Before turning to the incident itself, a
brief sketch of relevant policies at Maguire is helpful.
standing booking procedure at Maguire involves searching and
documenting an inmate, making sure the inmate is medically
cleared, determining if the inmate has been housed at the
jail before, determining their bail situation, photographing,
fingerprinting, and itemizing the inmate's property.
(Dkt. No. 98-4 at 7-8.) If the inmate is going to be housed
at Maguire and not released, staff performs a strip search of
the inmate. (Dkt. No. 98-4 at 8.) During a strip search,
staff of the same gender is assigned to the inmate-that is, a
female officer searches a female inmate-but the inmate
undresses herself; officers do not touch the inmate.
(Id. at 8-9.) Sergeant Denise Curley explained that
generally only one officer conducts the search unless the
inmate is combative or the officer is otherwise unable to
control the inmate. (Id. at 9.) If an officer calls
for backup during a strip search, the gender requirements are
not followed. (Dkt. No. 100-3 at 7-8.)
to Officer Lucy, who has been a correctional officer since
1999, officers at Maguire follow a “continuum of
force” policy to ensure safety of inmates and staff.
(Dkt. No. 98-2 at 17.) He testified that the first level of
force is “command presence, ” which involves only
the presence of an officer in the room, followed by
“light touch.” (Id.) After light touch,
the level of force increases up to lethal force.
(Id.) The written County policy provides that
“[p]hysical force”-which Officer Lucy explained
includes light touch-will only be used in cases of
self-defense, protection of others, prevention of escape,
protection of property, and when necessary to control an
inmate.” (Id. at 17-18.) County police
instructs officers to “use only the amount of force
that is necessary to gain and maintain control . . . .”
(Id. at 18.) Officer Lucy testified that when
officers use force beyond light touch, they notify their
superiors. (Id. at 19-20.)
Sheriff's Department also has a policy regarding mentally
or developmentally disabled inmates. (Dkt. No. 100-2 at
19-21; Dkt. No. 100-9.) One of the guidelines for
officers' supervision of such inmates instructs officers
to be patient because “[t]hese people may need more
time to act and react than other inmates.”
(Id. at 20.)
November 30, 2012 Plaintiff was booked into the Maguire
Correctional Facility (“MCF”) following her
arrest for altering checks. (Dkt. No. 98-2 at 7-8; Dkt. No.
98-3 at 11; Dkt. No. 100-1 at 3-4.) Plaintiff has a history
of depression stemming from a work-related head injury in
1997 or 1998 and a history of back pain and sciatica dating
back to a 2004 work-related injury when she fell onto her
back and right hip, though she later testified that she did
not remember that injury. (Dkt. No. 98-3 at 6-7, 8-10.)
testified that her “mind [was] not clear” on the
day of the arrest, so she was unable to testify about certain
things, like the amount of time it took before she arrived in
the intake area or remembering dates or times. (Dkt. No. 98-3
at 5, 26.) At one point she explained that she suffered a
nervous and emotional breakdown in the jail, which makes it
difficult for her to remember things. (Dkt. No. 100-1 at 28.)
Elsewhere she testified that she blacked out from the time of
her arrest until the night after the injury when she was in
the women's jail. (Dkt. No. 10-1 at 36-38.) However, she
recalls getting fingerprinted in the middle of an open room
at MCF- likely the intake area-then sitting in a search cell
crying. (Dkt. No. 98-3 at 5, 11; see also Dkt. No.
98-2 at 9.) A search cell is an eight by ten-foot room with a
concrete floor and a concrete chair or bench. (Dkt. No. 100-2
at 9; Dkt. No. 100-1 at 23, 45.) It is located in the middle
of the intake area. (Dkt. No. 100-2 at 8.) The search cell
door is not soundproof, so officers standing in the intake
area can hear inside the search cell. (Id.)
Curley and Officer Lucy were working in Maguire's intake
area that day. (Dkt. No. 98-2 at 7-8.) Following the
jail's strip search protocol, Sergeant Curley entered the
search cell with Plaintiff and instructed her to undress.
(Dkt. No. 98-2 at 9-10; Dkt. No. 98-3 at 13-14.) Sergeant
Curley does not remember searching Plaintiff that day or any
of the events that followed. (Dkt. No. 100-3 at 10, 13.)
Plaintiff testified that after being told to undress, she
continued to cry, told Sergeant Curley that she had a
disability, was not feeling well, and was experiencing
dizziness. (Dkt. No. 98-3 at 14; Dkt. No. 100-1 at 13.)
According to Plaintiff, Sergeant Curley told Plaintiff that
she was “making up that story.” (Dkt. No. 98-3 at
14-15; Dkt. No. 100-1 at 13.) Plaintiff explained that,
despite not feeling well, she was slowly complying with the
officer's order to undress and in fact managed to undress
completely. (Dkt. No. 98-3 at 15-16.) Officer Lucy recalls
hearing, from the intake area, Plaintiff being argumentative
and loud inside the search cell, screaming and yelling. (Dkt.
No. 98-2 at 9-10.)
parties offer two competing versions of what happened next.
Plaintiff testified that Sergeant Curley told her once to
“get down” or sit down to check Plaintiff's
bottom. (Dkt. No. 98-3 at 15; Dkt. No. 100-1 at 19.)
Plaintiff testified that she bent down as ordered when
Sergeant Curley suddenly called another female officer into
the search cell for backup. (Dkt. No. 98-3 at 16.) According
to Plaintiff, another female officer arrived and the two
women laughed at Plaintiff then ordered her to sit down on
the stone bench inside the search cell, but Plaintiff did
not; at that point, Sergeant Curley called for backup. (Dkt.
No. 98-3 16-17, 20; Dkt. No. 100-1 at 14-15, 20.) Plaintiff
testified that, still crying, she was in the process of
slowly sitting down when three male officers rushed into the
search cell, including Officer Lucy, who immediately and
without saying anything pushed Plaintiff onto the bench.
(Dkt. No. 98-3 at 18, 20, 22, 26, 29; Dkt. No. 100-1 at 15,
21.) Plaintiff has described the push itself differently: at
one point she testified that Officer Lucy placed his hands on
her shoulders, but she also described him putting his hands
on her chest. (Dkt. No. 98-3 at 23-24; Dkt. No. 100-1 at 22,
45.) In any event, she testified that she was two millimeters
from the bench when the officer pushed her, and as a result
of the push she landed only half on the side of the bench and
ended up sliding down onto the floor because the chair was
slippery. (Dkt. No. 98-3 at 22; Dkt. No. 100-1 at 23, 45.)
Lucy's version of events is different. He testified that
he entered the search cell because he heard Plaintiff getting
louder and louder in response to Sergeant Curley's verbal
commands to sit and stop yelling-not in response to a
specific call for backup-and that Plaintiff and Sergeant
Curley were the only two people in the search cell. (Dkt. No.
98-2 at 10-12.) When Plaintiff continued to yell, he
“basically took [his] left hand, touched her shoulder,
and asked her to sit down on the bench” and she
followed suit and sat down. (Dkt. No. 98-2 at 12.) He
described their interaction as “a very light
touch” that caused Plaintiff to sit of her own
volition. (Dkt. No. 98-2 at 12-13.) Officer Lucy testified
that he never pushed Plaintiff, and she did not fall into the
bench as a result of his pushing her. (Dkt. No. 100-2 at 12.)
According to Officer Lucy, he left after Plaintiff sat down
and remained outside the closed door for the rest of the
search, and Plaintiff seemed to be complying because there
was no more arguing. (Dkt. No. 98-2 at 13, 15.)
point, Plaintiff testified that she does not remember how she
landed on the ground or how long she was there because she
“blacked out” after the fall and when she came to
she was in the jail clinic speaking to the nurse. (Dkt. No.
98-3 at 30-32; Dkt. No. 100-1 at 32, 35, 47.) Elsewhere,
Plaintiff testified that she landed on the ground on her left
side and remained there for five minutes while the officers
stared at her, then she stood up, crying, telling the
officers they should not have done that to her. (Dkt. No.
100-1 at 24, 29.) Plaintiff testified that she injured the
middle of her spine and her left leg as a result of the push.
(Dkt. No. 98-3 at 28.)
Events Following the Incident
nurse's station, Nurse Donna Webb treated Plaintiff.
Nurse Webb asked Plaintiff questions on standard jail medical
forms and completed the forms. (Dkt. No. 98-5 at 9-10.) On
one form, Nurse Webb noted that she observed that Plaintiff
appeared depressed, and that Plaintiff reported high blood
pressure. (Dkt. No. 98-6 at 2.) Nurse Webb did not check the
box indicating that Plaintiff reported back injuries.
(Id.) Plaintiff signed and dated the form.
(Id.) On a health inventory form that Nurse Webb
signed, she noted no back injuries or other complaints. (Dkt.
No. 98-6 at 3.) At her deposition, Plaintiff confirmed that
she did not tell Nurse Webb that Officer Lucy had just
injured her, but she testified that she told Nurse Webb she
was depressed and had suffered a back injury. (Dkt. No. 100-1
later submitted grievances to the Sheriff's department
following the incident. (Dkt. No. 100 ¶¶ 7-8; Dkt.
No. 100-5; Dkt. No. 100-6.) In her first grievance, dated
December 29, 2012, Plaintiff described how an officer pushed
her with both hands on the front of her shoulder causing her
to land with her left hip on the stone chair. (Dkt. No. 100-5
at 3.) Officer Lucy testified that he would not have accepted
Plaintiff's grievances because they were longer than one
page. (Dkt. No. 100-2 at 14-15, 23.) The Sheriff's Office
grievance policy states that a grievance will be returned to
the inmate if it does not comply with the rules set forth by
each “pod, ” but that if the grievance is
accepted the officer should provide a written response. (Dkt.
No. 100-10 at 2-3.) Neither Officer Lucy nor Sergeant Curley
were aware of any investigation into or response to
Plaintiff's grievances. (Id. at 24; Dkt. No.
100-3 at 12-13, 20.)
first filed suit based on the above-described incident in San
Mateo County Superior Court, but her case was dismissed
without prejudice after she failed to timely amend.
(See Dkt. No. 7 at 3.) Plaintiff then initiated this
action in October 2014 against Officer Lucy, Sergeant Curley,
and San Mateo County. (Dkt. No. 1.) As Plaintiff, who was
representing herself, was proceeding in forma pauperis, the
Court reviewed her complaints under 28 U.S.C. § 1915
several times before ordering the complaint to proceed to
service. After Section 1915 review and resolving
Defendants' motion to dismiss in December 2015, only one
claim remained against a single defendant: the excessive
force claim against Officer Lucy. (See Dkt. No. 45.)
parties commenced discovery in January 2016. (See
Dkt. No. 51.) Discovery was not smooth sailing, as Plaintiff
failed to respond or object to any of Defendant's
discovery requests and did not appear for discovery hearings
as ordered. (See Dkt. No. 54; Dkt. No. 60.) After
the Court extended the discovery deadline to account for
Plaintiff's delay, Defendant filed a motion for summary
judgment. (Dkt. No. 69.) Shortly thereafter, the Court
granted Plaintiff's motion to appoint counsel for all
purposes. (Dkt. No. 71, 73.) Plaintiff's newly appointed
counsel then sought to re-open discovery; the Court permitted
limited discovery relating to liability and offered Defendant
the opportunity to take a further deposition of Plaintiff.
(Dkt. No. 82.) The Court's Order indicated that the
parties would discuss briefing Defendant's summary
judgment motion at the close of this limited discovery
a case management conference, the Court set a February 3,
2017 deadline for filing summary judgment motions. (Dkt. No.
97.) Defendant's renewed motion for summary judgment
followed on that deadline. (Dkt. No. 98.) On February 24,
2017, Plaintiff filed a motion for partial summary judgment
as to certain affirmative defenses. (Dkt. No. 102.)
Defendant's Motion for Summary Judgment
Plaintiff's Objections to Defendant's Evidence in
Support of his Motion
objects to her own deposition testimony as well as her
correctional medical records that were submitted as Exhibit E
to the declaration of Margaret Tides. (See Dkt. No.
101 at 2.) Defendant urges the Court to disregard or overrule
Plaintiff's evidentiary objections because they were
filed separately from Plaintiff's opposition brief in
contravention of Civil Local Rule 7-3(a). (Dkt. No. 105 at
10.) See N.D. Cal. Civ. L.R. 7-3(a). (“Any
evidentiary and procedural objections to the motion must be
contained within the brief or memorandum.”). By
ignoring Rule 7-3(a), Plaintiff fit more argument into her
brief than she otherwise could have-and more than Defendant
did, because his objections were properly within his brief.
The Court therefore overrules Plaintiff's
objections. See Civ. L.R. 11-4(a)(2),
Defendant's Objections to Plaintiff's Opposition
also objects to evidence that Plaintiff submitted in support
of her opposition to Defendant's summary judgment motion.
First, Defendant “objects to Plaintiff's reliance
on her pleadings as substantive evidence.” (Dkt. No.
105 at 7.) Specifically, Defendant laments that Plaintiff
repeatedly cites her pleadings and prior Court orders
reviewing the pleadings to oppose summary judgment.
(Id. at 8-9.) Plaintiff is free to refer to her
pleadings. However, allegations in the pleadings and in the
Court's prior orders evaluating the pleadings are not
admissible evidence of what happened during the incident.
Defendant objects to the Court's consideration of
grievances that Plaintiff filed with San Mateo County Sheriff
and the County District Attorney, contending that they are
unauthenticated and constitute inadmissible hearsay. (Dkt.
No. 105 at 9.) In her declaration, Plaintiff's counsel
avers that Sergeant Curley confirmed that the grievance was a
true and correct copy. (Dkt. No. 100 ¶ 7.) At her
deposition, Sergeant Curley confirmed that the grievance
forms appeared to be the types of forms inmates file at the
county jail-without confirming that the particular form was
Plaintiff's grievance form-and agreed that
Plaintiff's name appeared on the forms. (Dkt. No. 100-3
at 11-21.) This is enough to authenticate the forms. As for
hearsay, while they may not be offered as proof that what she
says in the forms is true, they are admissible evidence as to
what she reported. See Fed. R. Evid. 801(d)(1)(B).
Indeed, in other excessive force cases courts have considered
the plaintiff's grievance forms to be “the
evidentiary equivalent of a declaration.” See
Browne v. San Francisco Sheriff's Dep't, 616
F.Supp.2d 975, 980 (N.D. Cal. 2009) (record citation
Defendant objects to the Court's consideration of
Plaintiff's booking photo, on the grounds that it is not
relevant, lacks probative value, and is not authenticated.
(Dkt. No. 105 at 10.) The Court does not rely on the booking
photo and thus the objection is moot.
Officer Lucy is Not Entitled to Summary Judgment
alleges that Officer Lucy violated her Fourteenth Amendment
right to be free from excessive force under 42 U.S.C. §
1983. “Section 1983 does not create any substantive
rights, but is instead a vehicle by which plaintiffs can
bring federal constitutional and statutory challenges to
actions by state and local officials.” Anderson v.
Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To prevail
on a Section 1983 claim, Plaintiff must show that the alleged
conduct both occurred “under color of state law”
and deprived Plaintiff of a constitutional or federal
statutory right. S. Cal. Gas Co. v. City of Santa
Ana, 336 F.3d 885, 887 (9th Cir. 2003). Here, Officer
Lucy concedes that he was acting under color of state law, as
he was on duty as a correctional officer at the time of the
incident. (See Dkt. No. 98 at 7.) Thus, the only
question on Defendant's motion is whether Officer Lucy is
entitled to summary judgment because there is no dispute of
fact that he did not use excessive force, or, even if there
is, whether he is entitled to qualified immunity.
Process Clause of the Fourteenth Amendment protects pretrial
inmates from excessive force. To determine whether an officer
violates a pretrial detainee's constitutional rights by
using excessive force, the Court considers whether the use of
force violates the standard of reasonableness set forth in
the Fourth Amendment. See Kingsley v. Hendrickson, 135
S.Ct. 2466, 2473 (2015); see also Gibson v. Cnty. of
Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002)
(noting that the Supreme Court “has not expressly
decided whether the Fourth Amendment's prohibition on
unreasonable searches and seizures continues to protect
individuals during pretrial detention” but the Ninth
Circuit has applied the Fourth Amendment to such claims)
(citation omitted), overruled on other grounds by Castro
v. Cnty. of Los Angeles, 833 F.3d 1070, 1076 (9th Cir.
2016); Pierce v. Multnomah Cnty., 76 F.3d 1032, 1043
(9th Cir. 1996), cert. denied, 519 U.S. 1006 (1996)
(applying the Fourth Amendment's reasonableness
standard); see also Fuller v. Orange Cnty., 276 F.
App'x 675, 678 (9th Cir. 2008) (holding that a claim for
excessive force during booking arises under the Fourth
a defendant's use of force was “reasonable”
under the Fourth Amendment requires a careful balancing of
the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the
countervailing government interests at stake.”
Graham v. Connor, 490 U.S. 386, 395 (1989). Thus,
the question is “whether the officers' actions
[were] ‘objectively reasonable' in light of the
facts and circumstances confronting them, without regard to
their underlying intent or motivation.” Id. at
397. In making that determination, courts consider “the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff's
injury; any effort made by the officer to temper or to limit
the amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting. ...