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Lawrence v. City and County of San Francisco

United States District Court, N.D. California

June 15, 2017



          MARIA-ELENA JAMES United States Magistrate Judge.


         Pending before the Court is the Motion for Summary Judgment filed by Defendants the City and County of San Francisco (the ''City''), San Francisco Police Department (''SFPD'') Officer Christa Peters, and SFPD Officer Daniel Bonnel (collectively, ''Defendants''). Dkt. No. 99. Plaintiff Emil Lawrence (''Plaintiff'') filed an Opposition (Dkt. No. 110) and Defendants filed a Reply (Dkt. No. 117). Having considered the parties‘ positions, the relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants‘ Motion for the following reasons.


         A. Plaintiff's Detention

         Karen Waksman filed an Incident Report with the SFPD alleging that her iPad had been stolen from a restaurant located at 1480 Fillmore Street, San Francisco, California on December 21, 2011.[1] Ceballo Decl., Ex. B (''Incident Report''), Dkt. No. 101. The Incident Report identifies Plaintiff as the person suspected of taking her iPad. Id.

         On January 2, 2012, Waksman called 911 to report that the person who stole her iPad had returned to the restaurant. Ceballo Decl., Ex. C (''Dispatch Report''). Peters and nonparty SFPD Officer Joshua Enea responded to the call. Id. at 1; Ceballo Decl., Ex. D (''Defs.‘ Peters Dep.'') at 18:5-19; Anderson Decl., Ex. 9 (''Pl.‘s Peters Dep.'') at 18:5-19, Dkt. No. 111; Ceballo Decl., Ex. E (''Defs.‘ Enea Dep.'') at 25:2-7. When Peters and Enea arrived at the restaurant, an employee identified Plaintiff as the person who had stolen Waksman‘s iPad. Defs.‘ Peters Dep. at 18:20-19:5; Pl.‘s Peters Dep. at 18:20-19:5; Defs.‘ Enea Dep. at 25:25-26:10, 37:3-6. Peters and Enea approached Plaintiff to speak with him. Defs.‘ Enea Dep. at 29:5-20. They explained to Plaintiff that someone had accused him of taking an iPad. Pl.‘s Peters Dep. at 24:6-15. The officers informed Plaintiff that he was not under arrest, but that the officers were detaining him pending an investigation. Defs.‘ Enea Dep. at 29:17-20, 37:13-21; Defs.‘ Peters Dep. at 25:8-9, 18-20; Pl.‘s Peters Dep. at 25:8-9, 18-20.

         Plaintiff loudly voiced his disagreement about the detention. Defs.‘ Peters Dep. at 26:3-11, 26:24-27:10; 28:16-25; Pl.‘s Peters Dep. at 26:3-11, 26:24-27:10; Defs.‘ Enea Dep. at 58:6-8, 23-25Pl.‘s Enea Dep. at 37:25-38:3, 41:9-12. Peters and Enea testified that Plaintiff was pacing or trying to walk away. Defs.‘ Peters Dep. at 27:15-16, 29:2; Pl.‘s Peters Dep. at 27:15-16, 29:2; Defs.‘ Enea Dep. at 57:25-58:1, 77:9-10; but see Pl.‘s Peters Dep. at 39:20-25 (when asked whether Plaintiff tried to evade arrest, Peters responded Plaintiff ''[j]ust verbally resist[ed]. He didn‘t try to run away or anything at that point.''). The responding officers placed Plaintiff in handcuffs. Defs.‘ Peters Dep. at 25:20-24; 33:25-34:2; Pl.‘s Peters Dep. at 25:20-24; Defs.‘ Enea Dep. at 57:21-58:11. Plaintiff informed Peters and Enea that he had a pin or a plate in his wrist. Defs.‘ Peters Dep. at 34:3-5 (Plaintiff mentioned he had a ''pin . . . or something'' in his wrist), 15-16 (remembering Plaintiff ''yelling something about a pin or prior surgery''); Pl.‘s Peters Dep. at 34:3-5, 15-16; Pl.‘s Lawrence Dep. at 100:23-24 (testifying he has a plate in his wrist). For that reason, the officers used two sets of handcuffs to restrain Plaintiff. Defs.‘ Peters Dep. at 2-3; Ceballo Decl., Ex. F (''Defs.‘ Aug. 19 Lawrence Dep.'') at 102:4-8, 109:1-2; Anderson Decl., Ex. 7 (''Pl.‘s Lawrence Dep.'') at 100:25-101:2. Plaintiff described the handcuffs as being ''bone tight.'' Pl.‘s Lawrence Dep. at 100:25-101:1. He ''felt nonstop pain'' due to ''the fact that [his] hands were twisted and . . . [he] could no longer move them one way or another.'' Id. at 115:10-13. He further testified that he suffered ''numbness in [his] thumbs and forefingers for up to six weeks.'' Id. at 115:17-19.

         B. Plaintiff's Placement into the Patrol Car

         When Peters directed Plaintiff into the back of the patrol car, Plaintiff objected: ''Listen, you don‘t expect me to sit in a backseat that looks like it‘s fit for a midget, do you?''. Defs.‘ Aug. 19 Lawrence Dep. at 108:10-14; Defs.‘ Enea Dep. at 77:5-7; see also Dispatch Report (''GUY IN CAR IS KINDA BIG'' (capitalization in original)). Peters insisted Plaintiff get into the patrol car. Defs.‘ Aug. 19 Lawrence Dep. at 108:15. The parties agree Plaintiff had difficulty doing so, and had to be physically assisted by Peters. See Id . at 110:23-111:25; Pl.‘s Lawrence Dep. at 111:1-112:25. Plaintiff testified that while trying to get him into the car, Peters pushed him with her hands and ''her leg, either her knee or her foot or combination thereof.'' Pl.‘s Lawrence Dep. at 112:15-16.

         Once Plaintiff was in the patrol car, Enea went into the restaurant to review video footage of the alleged theft. Defs.‘ Enea Dep. 95:11-14. This took somewhere between ten to forty-five minutes. Compare Defs.‘ Enea Dep. 96:19-97:1 (Plaintiff sat in the back of the police car for ten to fifteen minutes before Peters transported him to Northern Station) with Pl.‘s Lawrence Dep. at 116:18-20 (''[W]e sat in the car for 40 minutes - 30 to 40 minutes. I think it was probably up to 45 minutes, but it could be 30 to 45 minutes.''). Having reviewed the video, Enea returned outside to Peters, informed her that Plaintiff ''is the individual that‘s on the video footage'', and told her to take Plaintiff to Northern Station. Defs.‘ Enea Dep. at 97:15-24; Pl.‘s Enea Dep. at 97:15-24. At this point, Plaintiff was under arrest. Defs.‘ Enea Dep. at 97:4-6, 98:14-15 (''At the time [Plaintiff] was being transported that was the arrest.''); Pl.‘s Defs.‘ Enea Dep. at 97:4-6; Pl.‘s Peters Dep. at 42:20-25 (''Q. At what point did [Plaintiff‘s] detainment turn into an arrest? A. When Officer Enea got back and let us know the details, we filled out a citation.'').

         C. Plaintiff's Removal from the Patrol Car

         Peters, on her own, transported Plaintiff a few blocks away to Northern Station. Dispatch Report at 1; Defs.‘ Peters Dep. at 113:3-6; Pl.‘s Peters Dep. at 44:14-15; Defs.‘ Enea Dep. at 24:17-20. During the drive, Plaintiff continued ''yelling about his disagreement with the arrest.'' Pl.‘s Peters Dep. at 44:21-24.

         At Northern Station, Peters opened the door to let Plaintiff out, but Plaintiff refused to and/or could not exit the patrol car. Defs.‘ Peters Dep. at 45:11-14; Pl.‘s Peters Dep. at 45:11-14. Peters testified that Plaintiff ''was very upset'' and ''it looked like he kind of got in a way where he couldn‘t get out by himself, kind of wedged a little bit.'' Defs.‘ Peters Dep. at 45:15-18; Pl.‘s Peters Dep. at 45:15-18; see Id . at 46:11-16 (both) (explaining that ''if you don‘t sit right, you can get kind of stuck. [] It‘s just real tight back there. So if you‘re going to move around and get upset, no matter what size you are, you‘re going to get kind of contorted, and it‘s hard to move and get out on your own.''). Peters ''knew at this point [Plaintiff] couldn‘t'' exit the vehicle and knew ''she needed help getting him out.'' Defs.‘ Peters Dep. at 47:2-3; Pl.‘s Peters Dep. at 47:2-3. During this time, Plaintiff was ''screaming ''you can‘t make me get out of the car. I didn‘t do anything, ‘ stuff to that effect.'' Defs.‘ Peters Dep. at 46:20-22; Pl.‘s Peters Dep. at 46:20-22.

         Peters ''didn‘t believe [she] was strong enough to lift [Plaintiff], '' so she radioed for another officer to help her remove Plaintiff from the vehicle.[2] Defs.‘ Peters Dep. at 45:19-25; Pl.‘s Peters Dep. at 45:19-25. Peters then flagged down Bonnel, who had just driven past her in the parking lot. Defs.‘ Peters Dep. at 47:4-16; Pl.‘s Peters Dep. at 47:4-16. Peters explained to Bonnel that Plaintiff was ''stuck'' and ''refusing to get out of the car.'' Defs.‘ Peters Dep. at 48:13-15; Pl.‘s Peters Dep. at 48:13-15. Bonnel observed Plaintiff acting ''[v]ery belligerent'' and screaming ''''You can‘t make me get out of his car.‘'' Ceballo Decl., Ex. I (''Defs.‘ Bonnel Dep.'') at 32:14-21; Anderson Decl., Ex. 10 (''Pl.‘s Bonnel Dep.'') at 32:14-21. Bonnel believed Plaintiff did not need help, but rather simply refused to get out of the car. Defs.‘ Bonnel Dep. at 25:11-19; Pl.‘s Bonnel Dep. at 25:11-19.

         Bonnel ''spoke to [Plaintiff] for a few minutes and tried to convey the fact that he needed to get out of the back of the car[.]'' Defs.‘ Bonnel Dep. at 33:9-11; Pl.‘s Bonnel Dep. at 33:9-11. Plaintiff continued to scream that Bonnel could not make him get out. Id. at 33:11-13 (both). Bonnel asked Plaintiff to get out of the car at least ten times. Id. at 37:18-22 (both). Specifically, Bonnel ''explained to [Plaintiff] that no matter what the circumstances are he‘s going to have to get out of the car, so make it easy on yourself and make an effort to get out.'' Id. at 38:1-4 (both).

         Bonnel proceeded to remove Plaintiff from the vehicle. Bonnel describes Plaintiff‘s removal as follows: he ''placed [his] right arm under [Plaintiff‘s] right arm in the armpit area, and then put [his] left arm under [Plaintiff‘s] left armpit area, lifted [Plaintiff] up and out of the car, and set him down butt first on the sidewalk next to the open door area of the vehicle.'' Defs.‘ Bonnel Dep. at 42:15-19; Pl.‘s Bonnel Dep. at 38:15-19; see Id . at 43:3-18 (both); Defs.‘ Peters Dep. at 58:4-12; Pl.‘s Peters Dep. at 58:4-12. Plaintiff testified Bonnel ''grabbed [him] by the coat . . . and pulled [him] right out forcefully.'' Pl.‘s Lawrence Dep. at 135:5-6; see Id . at 143:5-10 (''I‘m facing forward, and he‘s grabbing me from the side.'').

         Plaintiff was yelling throughout this process. Plaintiff testified he ''was telling [Bonnel], ''Do not drop me. Please do not drop me on my hands. Don‘t drop me on my back, please.‘'' Pl.‘s Lawrence Dep. at 135:7-9. Plaintiff explains he ''was yelling at [Bonnel] because [he] felt the pain'' in his hands and back. Id. at 135:12-13. Bonnel describes Plaintiff as ''[s]creaming incoherently. [He] couldn‘t tell what [Plaintiff] was saying.'' Defs.‘ Bonnel Dep. at 56:19; Pl.‘s Bonnel Dep. at 56:19. Bonnel does not recall Plaintiff begging with him to keep him upright. Id. at 56:21-22 (both).

         Although Plaintiff ''can‘t recall because it happened very quickly . . ., [he] felt [he] was dropped at least from one and a half feet to three feet from the top because [Bonnel] didn‘t just put [him] on the ground. [Bonnel] kind of brought [him] down and then just let [him] go, something like that[.]'' Defs.‘ Lawrence Dep. at 145:21-25; Pl.‘s Lawrence Dep. at 145:21-25.

         Bonnel testified that after he pulled Plaintiff from the police vehicle, he ''placed [Plaintiff] on his behind, and then [Plaintiff] was helped to his feet by [Bonnel] and Officer Peters, . . . and he stood up.'' Defs.‘ Bonnel Dep. at 52:5-8; Pl.‘s Bonnel Dep. at 52:5-8. Bonnel denies dropping Plaintiff on the ground and denies Plaintiff fell to the ground. Defs.‘ Bonnel Dep. at 56:3-9; Pl.‘s Bonnel Dep. at 56:3-9; see Id . at 55:16-19 (both) (confirming he ''set [Plaintiff] on the ground gently''); but see Defs.‘ Peters Dep. at 59:15-17; Pl.‘s Peters Dep. at 59:15-17 (To Peters, ''it looked like . . . they both . . . kind of not fell hard to the ground, but it wasn‘t super smooth, but not intentional.''). Bonnel did not give Plaintiff an opportunity to stand up. Defs.‘ Bonnel Dep. at 55:14-15; Pl.‘s Bonnel Dep. at 55:14-15. Rather, once Plaintiff was on the ground, Bonnel and Peters helped Plaintiff to stand. Defs.‘ Bonnel Dep. at 52:6-7; Pl.‘s Bonnel Dep. at 52:6-7; Pl.‘s Peters Dep. at 61:16-17.

         D. Events Inside Northern Station

         Once Plaintiff was on his feet, Bonnel and Peters walked him into the station. Pl.‘s Peters Dep. at 72:11-15; see Defs.‘ Lawrence Dep. at 132:9 (''They dragged me inside[.]''); Pl‘s Lawrence Dep. at 132:9 (same). Bonnel and Peters sat Plaintiff on a bench and secured him to it. Pl.‘s Peters Dep. at 72:18-73:11.

         During the time Plaintiff remained on the bench, he declined an offer for medical assistance. Pl.‘s Lawrence Dep. at 138:14-17. There is evidence Plaintiff also declined to answer other questions regarding his medical condition. See Ceballo Decl., Ex. J (Medical Screening Form). Plaintiff denies anyone asked him any such questions. Defs.‘ Lawrence Dep. at 138:20-25; Pl.‘s Lawrence Dep. at 138:20-25.

         Enea returned to Northern Station and gave Plaintiff a Notice to Appear. Ceballo Decl., Ex. L. The Notice to Appear is dated January 2, 2012 and notes a time of ''1600.'' See Id . Plaintiff signed the Notice. See Id . He was released thereafter.

         C. Procedural Background

         On July 22, 2013, Plaintiff, then pro se, initiated this action against the City and SFPD in the Superior Court of California. Dkt. No. 1, Ex. A (Compl.). The City removed the action to this Court on February 24, 2014. Notice of Removal, Dkt. No. 1. On December 8, 2014, Plaintiff sought to amend his Complaint. Dkt. No. 27. The Court denied that Motion as untimely. Dkt. No. 31. On August 4, 2016 and with the benefit of appointed counsel (see Dkt. No. 55), Plaintiff again moved to amend the Complaint (Dkt. No. 79). The Court permitted the amendment (Dkt. No. 89), and Plaintiff filed the operative Second Amended Complaint (''SAC'') on October 13, 2016 (Dkt. No. 91).

         In the SAC, Plaintiff asserts the following claims: (1) pursuant to 42 U.S.C. § 1983 and California Civil Code section 52.1, excessive force in violation of the Fourth and Fourteenth Amendments; (2) assault and battery; and (3) negligence. SAC ¶¶ 23-37. Defendants seek summary judgment on all claims.


         Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate that there is ''no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.'' Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

         Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party‘s case. Celotex, 477 U.S. at 324-25.

         If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed.R.Civ.P. 56(c)(1); Anderson, 477 U.S. at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court ''rel[ies] on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.'' Id.; see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). Thus, ''[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.'' Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this showing, ''the moving party is entitled to a judgment as a matter of law.'' Celotex, 477 U.S. at 322 (internal quotations omitted).

         Additionally, at the summary judgment stage, parties must set out facts they will be able to prove at trial. At this stage, courts ''do not focus on the admissibility of the evidence‘s form . . . . [but] instead focus on the admissibility of its contents.'' Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citation omitted). ''While the evidence presented at the summary judgment stage does not yet need to be in a form that would be admissible at trial, the proponent must set out facts that it will be able to prove through admissible evidence.'' Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (citations omitted). Accordingly, ''[t]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.'' Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001); Celotex, 477 U.S. at 324 (a party need not ''produce evidence in a form that would be admissible at trial in order to avoid summary judgment.''); see also Fed. R. Civ. P. 56(c)(4) (''An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.'').


         Before turning to the parties‘ substantive arguments, the Court first considers Plaintiff‘s evidentiary objections. See Opp‘n at 24-25. Plaintiff objects to two categories of evidence: (1) a surveillance video and (2) SFPD reports. Id. at 25; Ceballo Decl., Ex. A (surveillance video, manually filed with the Court) & Exs. B, C, G, J, L (SFPD reports). Defendants do not address these objections in their Reply.

         Counsel for Plaintiff declares ''Defendants have not previously produced this surveillance video to Plaintiff during discovery in this litigation.'' Anderson Decl. ¶ 12. Defendants do not dispute this assertion. ''If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.'' Fed.R.Civ.P. 37(c)(1). As Defendants did not produce this video, the Court SUSTAINS Plaintiff‘s objection. The Court does not rely on it in this Order, and Defendants may not offer it as evidence at trial.

         As to the police reports, Plaintiff argues that Defendants have not properly authenticated them and that they contain inadmissible hearsay statements. Opp‘n at 25. Counsel for Defendants declares these are true and correct copies of SFPD records. Ceballo Decl. ¶¶ 3-4, 8, 11, 13. ''At the summary judgment stage, [courts] do not focus on the admissibility of the evidence‘s form. [Courts] instead focus on the admissibility of its contents.'' Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Exhibits B, C, G, J, and L could be admitted into evidence at trial; for instance, the authors of the reports could testify as to their contents based on their personal knowledge. See Fed. R. Civ. P. 602 (''A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness‘s own testimony.''). Because the reports‘ contents may be presented in an admissible form at trial, the Court may consider them at the summary judgment stage. See Fraser, 342 F.3d at 1037. Accordingly, the Court OVERRULES Plaintiff‘s objections to Exhibits B, C, G, J, and L.


         A. First ...

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