United States District Court, E.D. California
NICK C. BUCKHALTER, Plaintiff,
DANIEL TORRES, in his personal capacity as a peace officer of Vacaville Police Department, Defendant.
FINAL PRETRIAL ORDER
matter is proceeding on plaintiff's Fourth and Fourteenth
Amendment claims and state law claim for battery against
Officer Torres based on the manner and duration of
November 6, 2019, the court conducted a final pretrial
conference. Attorney Darryl Yorkey appeared for plaintiff
Nick C. Buckhalter, and attorneys Richard Osman and Sheila
Crawford appeared for defendant Daniel Torres.
hearing, and good cause appearing, the court makes the
following findings and orders.
is predicated on 28 U.S.C. § 1331, as plaintiff alleges
violation of his civil rights under 42 U.S.C. § 1983.
Venue is proper under 28 U.S.C. § 1391. Jurisdiction and
venue are not contested.
parties jointly request a trial by jury; 7
jurors will be empaneled.
STATEMENT OF THE CASE
case involves the alleged excessive force by a police officer
as a result of allegedly tight handcuffs. At the time of the
incident, plaintiff Nick Buckhalter was a resident of the
City of Vacaville and defendant Daniel Torres was a police
officer with the City of Vacaville Police Department. On
September 9, 2016, Buckhalter was arrested by Officer Torres.
Buckhalter was secured in handcuffs and transported to the
Solano County Jail. Buckhalter alleges the handcuffs were too
tight and caused him injury to his right wrist and hand.
Defendant denies plaintiff's allegations.
September 9, 2016, plaintiff Nick C. Buckhalter and his wife
were moving from their home at 296 Madison Avenue in
Vacaville, California to Georgia. A large 40-48-foot moving
truck was parked on the street in front of plaintiff's
home. Plaintiff owned numerous vehicles and had moved six of
his cars out of the garage and parked them on the street near
the park located across the street from his residence to
allow the movers to pack and load the moving truck. Plaintiff
parked his Chevrolet Monte Carlo on the street, across from
his residence, and three or four houses down from his home. A
large vehicle transport truck arrived at approximately 3:00
p.m. to move some of plaintiff's cars to Georgia. The
transport truck parked across the street from plaintiff's
approximately 5:00 p.m., plaintiff went to move his Monte
Carlo to the vehicle transport truck. Plaintiff got into the
Monte Carlo, started the car and put it in drive to pull out.
time, off-duty Vacaville police officer Roger Canady was at
the park with his young child and he observed plaintiff
driving the Monte Carlo and appear to do a “burn
out” on the street while children were on the adjacent
sidewalk and in the adjacent park in violation of California
Vehicle Code section 23109 (speed contests and exhibitions of
speed). Plaintiff then parked the Monte Carlo behind the
transport truck for loading. When plaintiff exited his
vehicle, Canady told plaintiff that the manner he drove the
Monte Carlo was unlawful and irresponsible and advised him
that he faced being arrested for violation of section 23109.
Plaintiff walked towards Canady and Canady identified himself
as an off-duty police officer and warned plaintiff there were
kids and other pedestrians nearby and that he should not be
driving in the manner he was. Plaintiff claims he did not
believe Canady was an off-duty police officer.
minutes later, while Canady was seated at the park, he heard
plaintiff yell, “I'll be back, ” but he did
not know if this was intended as a threat towards him. Canady
called the Vacaville Police Department and requested a
uniformed officer to come to the scene and arrest plaintiff
for violating Vehicle Code section 23109.
five minutes later a police car pulled up, parked and a
uniformed officer, defendant Officer Torres, walked up to
Canady and started talking to him. Plaintiff claims that he
believed they were talking about him so he went across the
street towards the officers. As plaintiff approached, Officer
Torres said, “hold on a minute, ” so plaintiff
stopped and stood by the back of the Monte Carlo, and then
sat on the trunk of the car until Officer Torres came to talk
to him. Officer Torres recorded his interaction with
plaintiff on his body worn camera that was attached to his
chest with a clip. Plaintiff admitted to Officer Torres that
it was inappropriate to be doing burn outs down the street in
close proximity to the park and children. Plaintiff told
Torres that the tires spun out and he apologized for the
tires spinning and jerking. Officer Torres observed black
tire tread marks on the roadway.
Torres told plaintiff he was going to issue him a citation
for his reckless driving, and plaintiff became very angry.
Plaintiff told Officer Torres that when he was done issuing
the citation, plaintiff was going to approach Canady and
“knock him out.” Plaintiff then stated,
“You're going to also have to arrest me, because
I'm going to knock him out as soon as this is over. If
you run my record, you know, I don't have no felonies, no
warrants. I have a lot of assaults and he's going to get
assaulted as soon as you leave.” Plaintiff motioned
towards Canady as he made these statements.
Torres told plaintiff to sit on the curb but plaintiff became
increasingly agitated, refused to sit on the curb and said,
“Why should I have to sit on the curb?” Plaintiff
said he was 60 years old and was sitting on the car while
talking to Officer Torres. Officer Torres twice asked
plaintiff to sit on the curb before plaintiff finally
complied. Plaintiff got off the trunk of the Monte Carlo and
sat on the curb. Because of plaintiff's aggressive and
agitated behavior and his threats to physically attack
Canady, Officer Torres decided to place him in handcuffs due
to concerns for his own safety and the safety of Canady.
Officer Torres ordered plaintiff to place his hands on top of
his head, but plaintiff did not comply. Plaintiff finally
placed his hands on his head after several orders. Plaintiff
removed both of his hands from the top of his head and
brought them in front of his body, then moved them on top of
his head again.
Torres placed one handcuff on plaintiff's right wrist
while his hands were on top of his head and proceeded to pull
his arms behind his back to secure his left wrist behind his
back. While Officer Torres performed this maneuver, plaintiff
said, “I got a rotator cuff, you see my shoulder,
” and he pulled his left hand out of Officer
Torres's grip and towards the front of his body.
Plaintiff's movement of pulling his arm from Officer
Torres' grip caused the body worn camera to fly off of
Officer Torres' body and onto the ground, which caused
the video to stop recording. Plaintiff admits he tried to
hold his arms stiff so Officer Torres could not pull his arms
behind his body and he was pulling his left arm towards his
body “the whole time” to avoid being handcuffed.
observed the interaction between plaintiff and Officer Torres
and it appeared to him plaintiff was agitated and arguing
with Officer Torres. Canady observed several of
plaintiff's associates walking toward Officer Torres and
plaintiff and he was concerned for Officer Torres's
safety because of plaintiff's aggressive resistance and
the group of plaintiff's associates moving that
direction. Based on the escalating situation and
plaintiff's physical resistance, Canady determined it
necessary to assist Torres in handcuffing plaintiff. As
plaintiff and Torres struggled on the ground, Canady
approached. Canady used his right knee to lean on
plaintiff's left side to roll him on to his stomach so
Officer Torres could handcuff plaintiff's left wrist.
Canady then moved away from the area and left the scene.
Canady used no other force and had no other involvement in
plaintiff's arrest. The only force Officer Torres used
during the incident was bringing plaintiff's hands behind
his back to secure him in handcuffs.
to securing plaintiff in handcuffs, Officer Torres did not
observe plaintiff exhibit any mobility limitations, including
limitations with his left shoulder. Rather, during Officer
Torres' investigation, plaintiff reached behind his back
with his left hand to retrieve his wallet from his left rear
pocket, raised his left hand above his head to waive at
passersby and to point at someone across the street, used
both hands to brace himself as he hopped onto the trunk of
his vehicle and supported his body weight and never exhibited
any pain or difficulty.
plaintiff's hands were cuffed behind his back, Officer
Torres lifted him up to place him in a police car. Plaintiff
was secured in handcuffs behind his back and placed in the
back of Officer Torres' police vehicle.
plaintiff was secured in the police vehicle, he told Officer
Torres his shoulder was hurting. Plaintiff did not tell
anyone other than Officer Torres about his shoulder or that
he was feeling pain. Officer Torres then took plaintiff to
the hospital to be examined within fifteen minutes of leaving
plaintiff's residence. X-rays were taken and a doctor
reported that plaintiff's shoulder looked fine and was
just inflamed. Plaintiff was given an injection in his left
shoulder, which gave him pain relief an hour-and-a-half to
two hours after the injection.
Torres transported plaintiff to jail.
Whether Plaintiff Performed a “Burnout”
Whether Plaintiff was Secured in Two Sets of Handcuffs that
Were Too Tight and Double Locked.
Propriety of Defendant's Handcuffing Plaintiff Behind His
Back Instead of in Front of His Body.
Whether Plaintiff's Arm Should Have Been Placed in a
Sling as Suggested by the Doctor Who Examined Him.
Length of Time Plaintiff was Secured Tightly in Handcuffs
During Transport to Jail.
court will decide evidentiary disputes and/or motions in
limine on the first day of trial, or reserve ruling,
where appropriate, as trial unfolds. If a party wishes to
contest a pretrial ruling, it must do so through a proper
motion or objection, or otherwise forfeit appeal on such
grounds. See Fed. R. Evid. 103(a); Tennison v.
Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001)
(“Where a district court makes a tentative in limine
ruling excluding evidence, the exclusion of that evidence may
only be challenged on appeal if the aggrieved party attempts
to offer such evidence at trial.”) (alteration,
citation and quotation omitted). In addition, challenges to
expert testimony under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) are denied
without prejudice. Should a party wish to renew a
Daubert challenge at trial, it should alert the
court, at which point the court may grant limited voir dire
before such expert may be called to testify.
in limine shall be filed with the court no later
than February 3, 2020. Oppositions shall be
filed no later than February 17, 2020, and
replies, if any, shall be filed by February 24,
anticipates filing motions in limine to exclude the following
- Reference to plaintiff's prior criminal history.
- All evidence not timely disclosed.
- Testimony from late-disclosed witnesses and experts.
anticipates filing motions to exclude:
- Reference to prior complaints against officers,
investigations, witness accounts and reports and reference to
officer personnel files; if denied, defendant will seek a
trial protective order modeled on the discovery protective
order entered in this case. See ECF No. 44.
- All evidence not timely disclosed.
- Evidence regarding the result of plaintiff's criminal
prosecution related to the incident.
- Evidence of plaintiff's speculative wage loss.
- Testimony from late-disclosed witnesses and experts.
FACTUAL INFORMATION 
Date, Place and Nature of the Incident
case proceeds on plaintiff's Fourth Amendment excessive
force claim and his Fourteenth Amendment claim for failure to
protect against Officer Torres based upon the manner in which
Officer Torres secured plaintiff in handcuffs. Plaintiff also
brings a claim for battery against Officer Torres based on
the same facts surrounding his handcuffing. The incident
occurred on September 9, 2016, at approximately 5:00 p.m. in
front of plaintiff's residence, 301 Madison Avenue in
Vacaville, California. Officer Torres responded to a call for
service because plaintiff was reportedly doing burnouts in
the street. Officer Torres attempted to secure plaintiff in
handcuffs after he threatened to “knock out”
off-duty police officer, Roger Canady. Plaintiff resisted
Officer Torres but was eventually secured in handcuffs.
Plaintiff alleges he was kept in handcuffs for an excessive
amount of time and that they were too tight.
Injuries and Claimed Damages
was 60 years old at the time of the incident. Plaintiff
alleges he suffered injuries to his left shoulder and right
wrist. Plaintiff testified that no doctor has recommended any
future treatment for the physical injuries he attributes to
the incident. Plaintiff alleges he suffered wage loss and
loss of earning capacity as a result of the incident. Prior
to the incident, plaintiff alleges he earned $5, 000 a month
as a self-employed mechanic restoring vintage vehicles. He
alleges that after the incident, he did not return to work
until January 5, 2017, and lost approximately $28, 000 in
income. Plaintiff alleges he will lose $900, 000 in future
income. No documentary evidence has been produced to support
the past or future wage loss claim. Plaintiff alleges he
incurred a towing and storage fee of $900, a $400 fee related
to transportation costs and incurred a loss of $300 related
to a missing spare tire and jack.
seeks total recovery of $149, 600, itemized as follows: $28,
000 for lost income up to January 5, 2017; $1, 600 in direct
economic losses; a reduced future income loss of $20, 000 per
year for 5 years following the incident; and $20, 000 in
punitive damages. Plaintiff also seeks attorney fees for
302.6 hours at a rate of $400 per hour, for a total recovery
of $121, 040. After trial, plaintiff estimates the number of
hours will increase by 80 to 100 hours. In his answer to the
complaint, defendant indicates he will seek attorney fees if
court's August 7, 2019 summary judgment order, the court
noted plaintiff conceded summary judgment on all claims
against defendant Canady and on his state law assault, IIED
and NIED claims as to Officer Torres. Summary judgment as to
these claims was entered accordingly. WITNESSES
witness list is attached as Exhibit A.
Defendant's witness ...