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Heyward v. Hayward Police Department

United States District Court, N.D. California

June 28, 2017

MARCO B. HEYWARD, Plaintiff,
v.
HAYWARD POLICE DEPARTMENT, et al., Defendants.

          ORDER GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTION RE: DKT. NO. 78

          JOSEPH C. SPERO Chief Magistrate Judge.

         I.INTRODUCTION

         Plaintiff Marco Heyward brings this action against the City of Hayward[1] 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.[2]

         II. BACKGROUND

         A. Factual Background[3]

         The 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.

         At some 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. Id.

         Approximately 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.

         At the 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, 38.[4] M.H. further testified that no officers or staff accompanied him to the locker room and that he was alone there. Id. at 22.

         As the 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.[5] 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.

         Although 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.

         Mr. 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.

         Mr. 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.

         It is 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. A.[6] 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.

         The 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.

         Mr. 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.

         B. Plaintiff's Claims

         In his 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.

         As 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 training”).[7]

         III. ...


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