United States District Court, N.D. California
MARCO B. HEYWARD, Plaintiff,
HAYWARD POLICE DEPARTMENT, et al., Defendants.
ORDER GRANTING DEFENDANTS' SUMMARY JUDGMENT
MOTION RE: DKT. NO. 78
C. SPERO Chief Magistrate Judge.
Marco Heyward brings this action against the City of
Hayward and Officers Matthew McCrae and Gabrielle
Wright under 42 U.S.C. § 1983 based on events that
occurred on February 24, 2015. Presently before the Court is
Defendants' Motion for Summary Judgment
(“Motion”). At the request of the Court, the
parties filed supplemental briefs in connection with the
Motion addressing Plaintiff's Fourteenth Amendment Equal
Protection Claim. A hearing on the Motion was held on Friday,
June 23, 2017 at 9:30 a.m. For the reasons stated below, the
Motion is GRANTED.
incident that is the subject of this action occurred on
February 24, 2015. When the incident began, Mr. Heyward and
his son, M.H., were in the pool area of the 24-Hour Fitness
Gym in Hayward, California. Amended Complaint at 1. Both Mr.
Heyward and his son, M.H., were members of 24-Hour Fitness at
the time. Nishioka Decl., Ex. 1 (Marco Heyward Dep.) at 151,
203, 210. M.H., who is 14 years old, was in the pool swimming
and his father was calling out instructions to him. Amended
Complaint at 2; Heyward Decl., Ex. F (M.H. Dep.) at 10-11.
There is no evidence that Mr. Heyward was using any offensive
language or engaging in any aggressive behavior as he coached
his son and Defendants do not contend that he was.
point, a 24-Hour Fitness manager, Tyler Eklund, told Mr.
Heyward that he was being too loud and asked him to leave.
Nishioka Decl., Ex. 1 (Marco Heyward Dep.) at 150. Heyward
Decl., Ex. F (M.H. Dep.) at 12. Mr. Heyward told Mr. Eklund
that he and his son had a right to remain as they were
members of 24-Hour Fitness and he was not breaking the law.
Nishioka Decl., Ex. 1 (Marco Heyward Dep.) at 160. Mr. Eklund
told Mr. Heyward that he intended to call the police.
10 minutes after the exchange between Mr. Eklund and Mr.
Heyward occurred, Hayward Police Officers Matthew McCrae and
Gabrielle Wright arrived at the 24-Hour Fitness and
approached Mr. Heyward in the pool area. Heyward Decl., Ex. F
(M.H. Dep.) at 12. A recording from Officer McCrae's
“PUMA recording device” captured the encounter.
Nishioka Dec, Ex. 2 (recording). According to Officer McCrae,
this recording reflects his entire interaction with Mr.
Heyward and is unedited. McCrae Decl., ¶ 6. Mr. Heyward
contends the recording omits the initial portion of his
conversation with Officer McCrae, as he walked with the
Officers along the length of the pool to the hallway, and
that certain portions of the conversation were spliced out.
Nishioka Decl., Ex. 1 (Marco Heyward Dep.) at 193, 214. He
does not dispute, however, that the statements that can be
heard in the recording, which include the statements that
were made while Mr. Heyward was placed in handcuffs and the
conversation in the squad car, were actually made.
beginning of the recording, Mr. Heyward can be heard calling
out instructions to his son, who was swimming laps. Nishioka
Decl., Ex. 2. Officer McCrea greeted Mr. Heyward and asked to
speak with him; he informed Mr. Heyward that 24-Hour Fitness
had asked that Mr. Heyward leave the premises because of
complaints that he was being too loud. Id. Mr.
Heyward can be heard protesting that he was entitled to
remain because he was a member and that he was making no more
noise than others who used the pool area, pointing out as an
example that music was frequently played in the pool area.
Id. Although Mr. Heyward continued to object, it
appears to be undisputed that as he engaged with the Officers
about his belief that he was entitled to remain in the
fitness center, he and the Officers began walking away from
the pool, following Mr. Heyward's son in the direction of
both the main entrance and the locker room, where M.H. had
gone to change. Id. According to M.H., Officer
McCrae had “yelled” at him to get out of the pool
and so M.H. had gotten out and gone to the locker room to
change. Heyward Decl., Ex. F (M.H. Dep.) at 12,
M.H. further testified that no officers or staff accompanied
him to the locker room and that he was alone there.
Id. at 22.
Officers and Mr. Heyward approached the locker room, Mr.
Heyward expressed concern about the safety of his son.
Nishioka Decl., Ex. 2. He then turned to enter the locker
room, at which point, the officers “grabbed” Mr.
Heyward and placed him in handcuffs. Heyward Decl., Ex. B
(Marco Heyward Dep.) at 214, 247; Heyward Decl., Ex. D
(Heyward Dep.) at 213. Although the officers can be heard
instructing Mr. Heyward as to the position of his arms while
they placed him in handcuffs, and not to “tense up,
” it is impossible to determine from the audio whether
Mr. Heyward was resisting or attempting to flee. Officers
McCrae and Wright state generally in their declarations that
Mr. Heyward was “uncooperative” and had to be
“physically escorted out of the business, ”
McCrae Decl., ¶ 4; Wright Decl., ¶ 4, but they do
not state in their declarations that Mr. Heyward was ever
physically aggressive, that he attempted to resist when the
Officers placed him in handcuffs or that he appeared to be
trying to flee the scene.
Defendants contend Mr. Heyward essentially conceded at his
deposition that he was resisting, citing his testimony that a
scuffle can be heard as the Officers placed him in handcuffs,
see Motion at 2 (citing Heyward Dep. at 173-174,
216), Defendants take Mr. Heyward's testimony out of
context. Mr. Heyward testified at his deposition that there
were sounds of scuffling at this point in the audio because
the Officers were “trying to do something to
[him]” and that their intent was to “cause
injury” and “put [him] down on [his] face.”
Nishioka Decl., Ex. 1 (Heyward Dep.) at 173-174, 215-216. As
Defendants' counsel said to Mr. Heyward at his deposition
as they went through the audio recording together, “you
don't sound like someone who's going through a
struggle right now.” Nishioka Decl, Ex. 1 (Marco
Heyward Dep.) at 216.
Heyward testified at his deposition that he told the officers
at this time that he was a disabled veteran and that the
Officers shouldn't “physically grab [him].”
Nishioka Decl., Ex. 1 (Marco Heyward Dep.) at 193. Similarly,
he states in his Opposition brief that when the Officers
“aggressively grabbed him” and put him in
handcuffs, he “informed the Officers that he was a
disabled veteran who suffers multiple injuries ranging from
lower back and spinal injuries to the L3 and L1 spinal discs,
ankles, lower extremities: left quadriceps rupture and
patella, and right quadriceps tendon and any physical
aggression by the Officers would . . . exacerbate [his
injuries.” Opposition at 2-3. No such statements can be
heard on the audio recording, however, even though Mr.
Heyward identified the point in the recording when he was
placed in handcuffs.
Heyward contends he was, in fact, complying with the
Officers' orders when he started to enter the locker
room, believing that it was understood that in order to leave
the Fitness Center he would need to stop in the locker room
to supervise his son while he changed his clothes and to
retrieve his personal items. Id. at 216, 244. Mr.
Heyward testified that there was an exit from the 24-Hour
Fitness that could be accessed through the locker room and
that he regularly used this exit. Id. at 244. He
also testified that Officer McCrae had not told him
“which direction he wanted [Mr. Heyward] to go.”
Id. Officer McCrae and Officer Wright both stated in
their declarations that they were unaware of any exit other
than the one through the main entrance. McCrae Decl. ¶
5; Wright Decl. ¶ 5. However there is no evidence in the
record that contradicts Mr. Heyward's testimony that he
had not been given specific instructions about which way he
should go in exiting the building. Nor can the Officers or
Mr. Heyward be heard on the audio recording discussing
whether Mr. Heyward would be permitted to follow his son into
the locker room, though Mr. Heyward can be heard protesting
after he was physically prevented from doing so.
Nishioka Decl., Ex. 2.
undisputed that after Mr. Heyward was placed in handcuffs, he
was walked outside and was placed in the Officers' squad
car. Nishioka Decl., Ex. 2. Mr. Heyward testified at his
deposition that the handcuffs were “extremely
tight” and that when he was in the squad car his knees
were at an “awkward angle” and that his
“back was killing [him].” Heyward Decl., Ex. C
(Marco Heyward Dep.) at 240. However, Mr. Heyward cannot be
heard in the audio recording complaining or informing the
Officers that he was in pain while he was talking to the
Officers in the squad car. In support of his Opposition
brief, Mr. Heyward offers evidence that he suffers from
chronic knee pain, that he has had surgery on his left knee,
and that he suffers from severe tendinosis and
osteoarthristis, among other things. Heyward Decl., Ex.
M.H. testified that his father later told him that the
Officers had been “a bit too rough” with him and
that the next day he had seen bruises near his father's
shoulder blade that appeared to be caused by a hand grabbing
Mr. Heyward in a “rough manner.” Heyward Decl.,
Ex. F (M.H. Dep.) at 35-36.
Officers eventually released Mr. Heyward from the squad car
to allow him to walk home with his son, instructing him that
he should not return to the 24-Hour Fitness that day.
Nishioka Decl., Ex. 2. M.H. testified that the entire
encounter lasted about 20 minutes. Heyward Decl., Ex. F (M.H.
Dep.) at 34; see also McCrae Decl. ¶ 8 (stating
that the entire interaction with Mr. Heyward lasted 17
minutes and 56 seconds). No charges were filed against Mr.
Heyward in connection with the incident.
Heyward testified that he suffered from emotional distress as
a result of the events of February 24, 2015. Nishioka Decl.,
Ex. 1 (Marco Heyward Dep.) at 255. He does not offer any
admissible evidence that he was physically injured as a
result of the encounter. Nor is there any evidence that Mr.
Heyward sought medical treatment for any injuries received in
connection with the incident. His wife testified that she was
not aware of Mr. Heyward taking pain medication or using ice
to treat any injury after the incident. Nishioka Reply Decl.,
Ex. 1 (Gonzales Dep.) at 16. Mr. Heyward has introduced
evidence that he “continues to seek mental health
services at the VA Oakland Behavioral Health Clinic
daily” and that he is “actively involved in
therapy (both group, individual and couple's counseling)
to address PTSD symptoms (hyper vigilance, depression, bouts
of anger, crying spells).” Heyward Decl., Ex. A (March
20, 2017 Letter from Cynthia Wright). It is unclear when he
began that counseling or whether any of the counseling was
related to the incident that is at issue in this case.
original complaint, Plaintiff asserted three causes of action
against Defendants: 1) violation of 42 U.S.C. § 1985; 2)
conspiracy; and 3) “intentional tort.”
See Docket No. 6 at 3. The Court dismissed these
claims pursuant to 28 U.S.C. § 1915 with leave to amend.
Id. Plaintiff filed an Amended Complaint, which the
Court found “complie[d] with Title 28 USC §
1915.” Docket No. 12. The Amended Complaint is the
operative complaint in this action.
Plaintiff is not an attorney, the “Causes of
Action” set forth in the Amended Complaint do not
provide a clear statement of Plaintiff's claims.
Defendants have not filed any motions prior to the instant
Motion. Nor do they address in their summary judgment motion
the specific claims Plaintiff asserts in his Amended
Complaint. Therefore, the Court is faced with the task of
determining what claims are being asserted in this action.
Construing the Amended Complaint liberally, the Court
concludes that Plaintiff asserts the following claims, all
under 42 U.S.C. § 1983: 1) unreasonable detention in
violation of the Fourth Amendment against Officers McCrae and
Wright; 3) excessive force in violation of the Fourth
Amendment against Officers McCrae and Wright; 3) racial
profiling in violation of the Fourteenth Amendment Equal
Protection Clause against Officers McCrae and Wright; and 4)
Monell claims against the City of Hayward based on
the allegations that the Officers' violations of the
Fourth and Fourteenth Amendment resulted from a policy or
custom on the part of the City of Hayward of “view[ing]
all individuals as 'Criminals' without probable
cause, especially Blacks/African Americans when responding to
a call.” Amended Complaint at 6 (ECF page); see
also Amended Complaint at 7 (attributing the conduct of
the officer defendants to “lack of