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Acasio v. Lucy

United States District Court, N.D. California

April 10, 2017

LOURDES A. ACASIO, Plaintiff,
v.
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

         Plaintiff 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.

         BACKGROUND

         I. Summary Judgment Evidence

         A. Policies at Maguire Correctional

         This 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.

         First, 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[1] 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.)

         According 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.)

         The 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.)

         B. Plaintiff's Booking

         On 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.)

         Plaintiff 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.)

         Sergeant 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.)

         The 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.)

         Officer 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.)

         At one 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.)

         C. Events Following the Incident

         At the 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 at 33.)

         Plaintiff 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.)

         II. Procedural History

         Plaintiff 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.)

         The 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 period.

         Following 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.)

         DISCUSSION

         I. Defendant's Motion for Summary Judgment

         A. Evidentiary Objections

         1. Plaintiff's Objections to Defendant's Evidence in Support of his Motion

         Plaintiff 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.[2] See Civ. L.R. 11-4(a)(2), 11-4(a)(4).

         2. Defendant's Objections to Plaintiff's Opposition Evidence

         Defendant 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.

         Next, 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 omitted).

         Finally, 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.

         B. Officer Lucy is Not Entitled to Summary Judgment

         Plaintiff 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.

         1. Constitutional Violation

         The Due 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.[3] 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 Amendment).

         Whether 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. ...


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