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Nichols v. City of San Jose

United States District Court, N.D. California, San Jose Division

April 19, 2017

FELICIA NICHOLS, Plaintiff,
v.
CITY OF SAN JOSE, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Re: ECF 44]

          BETH LABSON FREEMAN United States District Judge

         Plaintiff Felicia Nichols brings this action following an encounter with San Jose Police officers in November 2012. Nichols brings suit under 42 U.S.C. § 1983 against the City of San Jose (the “City”) and the individual police officers involved in the incident: Christopher Schipke and Officer Ferguson (collectively, “Officer Defendants”) (collectively with the City, “Defendants”). The City and Officers Schipke and Ferguson seek summary judgment on all claims. See generally Mot., ECF 44. The Court has considered the briefing, the admissible evidence, and the argument presented at the hearing on March 23, 2017. For the reasons discussed below, Defendants' motion is GRANTED IN PART and DENIED IN PART.

         I. FACTS[1]

         On November 8, 2012, Nichols and her then-boyfriend David Cabrera were sitting in his car, which was parked across the street from and in front of Cabrera's mother's house, where Cabrera lived at the time. Nichols Decl. ISO Opp'n (“Nichols Decl.”) ¶ 5, ECF 45-3; Cabrera Decl. ISO Opp'n (“Cabrera Decl.”) ¶ 5, ECF 45-1. The two were discussing Nichols' molest at age 12, and Nichols was “very emotional.” Nichols Decl. ¶¶ 2, 5. Nichols was in the passenger seat and Cabrera was in the driver's seat. Id. ¶ 5; Cabrera Decl. ¶ 4. Cabrera had parked his car close to the truck behind it. Cabrera Decl. ¶ 5; Ex. 1 to Clouse Decl. ISO Mot. (“Schipke Dep.”) 58:19-20, ECF 44-1.

         Officers Schipke and Ferguson drove by Nichols and Cabrera sitting in their car at around 9:10 or 9:15 p.m., [2] turned around at the end of the cul de sac, and parked next to the truck behind Cabrera's car. Nichols Decl. ¶¶ 5-6. Officer Schipke testified that they were in the area because Officer Ferguson had information regarding gang and narcotic activity there. Schipke Dep. 66:10-12. Officer Schipke also testified that he thought it was suspicious that the vehicle was “backed up” in a way that he could not see the back license plate and because there were two people in the car “perhaps evading police contact, ” so he and Officer Ferguson approached the vehicle. Id. 74:10-13, 77:6-15, 82:13-17.

         The Officer Defendants approached the driver's side of the vehicle first. Nichols Decl. ¶ 6. Officer Ferguson asked Cabrera for his ID and asked him why he was in the area. Id. The parties dispute Cabrera's reaction. Nichols testified that Cabrera complied with Officer Ferguson's request, but Officer Schipke testified that Cabrera “was immediately confrontational.” Id.; Schipke Dep. 83:13-18. At this point, Nichols asked to speak to the Officer Defendants' watch commander or someone who was their boss. Nichols Decl. ¶ 7; Ex. 4 to Clouse Decl. ISO Mot. (“Nichols Dep.”) 110:2-12, ECF 44-1. Nichols then picked up her phone from under the emergency brake and began texting. Nichols Decl. ¶ 8.

         When Nichols began texting, Officer Schipke walked around to the passenger side of the vehicle and asked for her Id. Id. ¶ 9; Schipke Dep. 88:3-5. Despite being told to get off the phone, Nichols continued texting. Nichols Decl. ¶ 9; Nichols Dep. 51:15-24, 52:8-11. Officer Schipke asked Nichols to give him the phone, which Nichols did not do. Nichols Decl. ¶ 9. Officer Schipke then demanded that Nichols get out of the car. Nichols Decl. ¶ 9; Nichols Dep. 52:18; Schipke Dep. 97:13-17. Nichols admits that she did not immediately exit the car, though the parties dispute how Nichols responded and what happened next. Nichols Decl. ¶ 9; Nichols Dep. 52:18-19; Schipke Dep. 97:13-17. Nichols testified that Officer Schipke then reached into the car through the open window, unlocked and opened the passenger door, grabbed and twisted Nichols' right arm, and forcibly pulled her out of the car. Nichols Decl. ¶ 9; Nichols Dep. 52:19- 21, 53:18-22. Officer Schipke disputes that he pulled her out of the vehicle-he testified that when he put his hand on her arm, Nichols complied with his order to get out of the car. Schipke Dep. 97:4-5; Ex. 1 to Frucht Decl. ISO Opp'n (“Schipke Dep. II”) 97:22-98:4, ECF 45-2.

         Once out of the vehicle, Nichols began screaming and crying, and asked for a female officer because she did not want to be touched by a man because she was a molest victim. Nichols Decl. ¶¶ 9, 10; Schipke Dep. 103:23-25. Nichols claims that Officer Schipke ignored her request for a female officer, and instead immediately turned her around and placed her in handcuffs. Nichols Decl. ¶ 9; Nichols Dep. 62:16-20. Nichols further testified that the handcuffs were so tight that they were painful and caused bruises. She told the officers that the handcuffs were too tight, but they ignored her. Nichols Decl. ¶ 9. Officer Schipke could not recall whether he put Nichols in handcuffs immediately or after some time. Schipke Dep. 102:4-6. The parties agree, however, that Officer Schipke conducted a pat search. Nichols Decl. ¶ 10; Schipke Dep. 100:12- 22. Nichols was wearing yoga pants, flip fops, a skin-tight tank-top shirt that exposed her midriff, a zip-up sweatshirt, and no bra. Nichols Decl. ¶ 12; Nichols Dep. 58:17-22; Schipke Dep. 101:11-12 (“[s]he was wearing very . . . tight clothing); Schipke Dep. 101:15-17 (“she was wearing revealing clothing”). She testified that Officer Schipke placed his hands under her jacket, on her skin around her stomach area, and all around her waist, hips, front, and lower back. Nichols Decl. ¶ 10. Officer Schipke testified that he searched only her waistband. Schipke Dep. 101:15-16.

         Sometime later, several other officers arrived. Nichols Decl. ¶ 12; Schipke Dep. 131:7. Nichols claims that Officer Schipke then conducted a second pat search, unzipping her jacket and the two pockets on her jacket; searching around her waist, hips, and back; touching her skin with his thumb under her shirt; and “with a full hand” touched both of her breasts on top of her shirt. Nichols Decl. ¶ 12; Nichols Dep. 90:4-91:24. Officer Schipke testified that he did not conduct a second pat search. Schipke Dep. 105:4-6.

         Nichols testified that after the second pat search, Officer Schipke refused to zip up her sweatshirt and that the other officers stood in a semi-circle in front of her, staring at her, shining flashlights up and down her torso, giggling, and laughing. Nichols Decl. ¶ 14. Nichols claims that she asked the officers to stop staring at her, but they ignored her. Id. ¶ 15. Because she was “humiliated and embarrassed, ” Nichols testified that she turned her head away from the officers, but Officer Schipke, who according to Nichols was doing paperwork, told her to “turn the fuck around.” Id. Although Nichols testified that she did turn around, she “reflexively turned her head away once again.” Id. At that point, Nichols asserts that Officer Schipke “turned [her] around to face the hood of the marked police car and slammed [her] upper body onto the hood of the car.” Id.; Nichols Dep. 107:2-5. Nichols claims that when he slammed her onto the hood of the car, Officer Schipke pressed his private parts into her behind, and it felt to her that he was aroused. Nichols Decl. ¶ 15; Nichols Dep. 107:11-13. Officer Schipke testified that he never pushed her into the car and did not fill out any paperwork during the interaction. Schipke Dep. 108:9-13.

         Nichols claims that after she had been detained in handcuffs for over an hour, Officer Ferguson told her she was free to go, even though she was still handcuffed. Nichols Decl. ¶ 16. Officer Schipke testified that the entire encounter lasted only 40 minutes to an hour, and that she would not have been in handcuffs for the entire duration. Schipke Dep. 107:1-2. After Officer Ferguson told her she was free to go, a police sergeant arrived, and Nichols asked to speak with him. Nichols Decl. ¶ 16. Nichols asked the sergeant to remove the handcuffs, and the sergeant ordered an officer to do so. Id.; Nichols Dep. 111:5-14. After discussing the incident with the sergeant, Nichols walked back to Cabrera's car and waited there until all of the officers left. Nichols Decl. ¶ 17.

         Nichols filed this lawsuit on July 25, 2014. Compl., ECF 1. The First Amended Complaint (“FAC”) asserts four claims under 42 U.S.C. § 1983 against the Officer Defendants for deprivation of the right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment, and the right to be free from retaliation for exercising the right to petition the government, as guaranteed by the First Amendment. See generally FAC, ECF 10. Nichols also asserts a claim under section 1983 against the City for its pattern and practice of ongoing constitutional violations. Id. ¶¶ 43-44.

         II. LEGAL STANDARD

         “A party is entitled to summary judgment if the ‘movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248-49.

         The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

         If the moving party meets its initial burden, the burden shifts to the nonmoving party to produce evidence supporting its claims or defenses. Id. at 1103. If the nonmoving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant's favor.” City of Pomona, 750 F.3d at 1049. However, “the ‘mere existence of a scintilla of evidence in support of the plaintiff's position'” is insufficient to defeat a motion for summary judgment. Id. (quoting Anderson, 477 U.S. 242, 252 (1986)). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         III. DISCUSSION

         Defendants move for summary judgment on all claims. See generally Mot. Specifically, they ask the Court to address five questions. Id. at 1. The Court generally seeks to respond to the motion as submitted by the moving party. However, in this case, Defendants have improperly framed the questions they ask the Court to consider. For example, Issue Two is posited as follows: “Whether, in light of Plaintiff's poor cooperation and screaming, it was reasonable for officers to handcuff Plaintiff, search her, and conduct sobriety tests without exceeding the bounds of a valid investigatory stop.” Id. Because these questions are posed as if the Court is to answer them construing the evidence in the light most favorable to the moving party, which is not the standard, see City of Pomona, 750 F.3d at 1049, the Court instead considers whether any of Plaintiff's claims are appropriate for resolution on summary judgment.

         Before addressing the substance, the Court addresses two preliminary matters. First, Defendants indicate that that Plaintiff's counsel advised them that Nichols does not intend to pursue the Fourth and Fifth Claims alleged in the FAC, for alleged violation of Nichols' First Amendment rights and for Monell liability against the City. Mot. 8 n.6. Nichols confirms this in her supplemental brief. Pl.'s Suppl. Br. 1, ECF 52. Accordingly, the Court GRANTS Defendants' motion for summary judgment as to the Fourth and Fifth Claims alleged in the FAC.

         Second, in their motion, Defendants argue that Nichols does not claim that Officer Ferguson played any role in the encounter aside from initiating contact and questioning Cabrera, and thus, summary judgment is appropriate. Mot. 20. Nichols does not contest this assertion. For this reason, and because none of the evidence details any contact between Officer Ferguson and Nichols, the Court GRANTS the motion for summary judgment as to all claims against Officer Ferguson. Thus, the only claims remaining are those against Officer Schipke alone.

         Officer Schipke first argues that there is no evidence that he violated Nichols' constitutional rights, and therefore he cannot be liable under § 1983. See Mot. 9-20. Second, he contends that even if a constitutional violation occurred, he is entitled to qualified immunity because “it was not ‘beyond debate' in November 2012 that officers confronted with this situation could not take any of the actions of which Plaintiff complaints.” Id. at 21. The Court first addresses whether Officer Schipke has demonstrated that he is entitled to judgment as a matter of law based on undisputed material facts regarding the alleged constitutional violations, and next considers whether, even if there was a constitutional violation (which he denies), he is entitled to qualified immunity.

         A. ...


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