United States District Court, N.D. California
ORDER RE: MOTION FOR SUMMARY JUDGMENT RE: DKT. NO.
MARIA-ELENA JAMES United States Magistrate Judge.
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.
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. Ceballo Decl., Ex. B (''Incident
Report''), Dkt. No. 101. The Incident Report
identifies Plaintiff as the person suspected of taking her
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
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.
Plaintiff's Placement into the Patrol Car
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
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
Plaintiff's Removal from the Patrol Car
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
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.
''didn‘t believe [she] was strong enough to
lift [Plaintiff], '' so she radioed for another
officer to help her remove Plaintiff from the
vehicle. 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.
''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
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.'').
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).
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.
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.
Events Inside Northern Station
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.
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.
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.
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).
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
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.
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.
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
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.'').
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.
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.
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.