United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Re: ECF
LABSON FREEMAN United States District Judge
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
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,
Schipke and Ferguson drove by Nichols and Cabrera sitting in
their car at around 9:10 or 9:15 p.m.,  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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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,
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.
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.
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.
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.