M. M. v. County of San Mateo

          ORDER (1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, (2) DENYING PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT, AND (3) DENYING AS MOOT DEFENDANT'S MOTION TO EXCLUDE EXPERT OPINIONS AND TESTIMONY OF ROGER CLARK UNDER FED. R. EVID. 702 RE: DKT. NOS. 51, 53, 59

          YVONNE GONZALEZ ROGERS United States District Judge.

         Plaintiff M.M., a minor, by and through her Guardian ad litem, brings this action against defendants County of San Mateo (the “County”), deputies Robert Willett, Devin Crocker, James Brown, and Does 1 to 50, inclusive. Plaintiff alleges four causes of action: (1) deprivation of constitutional rights in violation of 42 U.S.C. Section 1983, including unreasonable search and seizure, arrest without probable cause, and excessive and unreasonable force and restraint in the course of an arrest against deputies Willet, Crocker, and Brown, as well as Does 1-25; (2) deprivation of those same constitutional rights in violation of Section 1983, pursuant to Monell, against the County and Does 26-50; (3) violation of California Civil Code § 52.1, the Bane Act, against all defendants; and (4) battery against all defendants.

         Now before the Court are the following motions: First, defendants move for summary judgment on plaintiff's claims. Second, plaintiff cross-moves for partial summary judgment on the issue of excessive force. Third, defendants move to exclude expert opinions and testimony of Roger Clark under Fed.R.Evid. 702.

         Having carefully reviewed the pleadings, the papers submitted on each motion, the parties' oral arguments at the hearing held on December 10, 2019, and for the reasons set forth more fully below, the Court: (1) Grants defendants' motion for summary judgment; (2) Denies plaintiff's motion for partial summary judgment; and (3) Denies as Moot defendants' motion to exclude expert opinions and testimony of Roger Clark under Fed.R.Evid. 702.

         I. BACKGROUND

         The initial facts of this incident are not materially in dispute: On August 13, 2017, plaintiff was residing at Your House South (“YHS”), a group home in Redwood City. (See Dkt. No. 61, Undisputed Fact (“UF”) 1.) Plaintiff was 15 years old, and was approximately five feet six or seven inches tall, and 120 pounds at the time of the incident. (UF 61-62.) YHS is a facility that helps at risk youth. (UF 2.) At the time, Alexis Austin was a relief counselor and facility manager at YHS. (UF 3.) Prior to August 13, 2017, plaintiff had been placed on a psychiatric hold under California Welfare & Institutions Code § 5150. (UF 4.)

         On the night of August 13, 2017, after being unable to locate plaintiff, Austin reported plaintiff missing by calling 911. (UF 5.) Austin advised the 911 operator that she was “very concerned” because plaintiff was “not in a good place” and had a “history of self harm.” (UF 6.) According to Austin, plaintiff had appeared to be crying and was not herself earlier that day. (UF 9.) Austin subsequently located plaintiff who had been hiding in a closet. (UF 7.) At approximately 10:51 p.m. that same day, Austin called 911 to cancel the missing person's report. (UF 8.)

         Later that evening on August 13, 2017, plaintiff provided a journal entry that caused Austin concerned. (UF 10.) Plaintiff's journal entry stated, in part, that “I'm in a dark place where I can't seem to find a way out and it's slowly killing every inch of me. Just want to get out of it because soon it will be too late.” (UF 11; see also Dkt. 51-12 at 6.) Plaintiff was concealing her arm and would not allow Austin to see her arms. (UF 12.) Austin became concerned that plaintiff may have cut herself. (UF 13.) Based on plaintiff's affect, her journal entry, and because she was holding her arms, Austin became concerned for plaintiff's welfare and safety. (UF 14.)

         At approximately 12:08 a.m. on August 14, 2017, Austin called 911 to request that plaintiff be assessed for a hold under Section 5150. (UF 15.) Defendant Deputy Robert Willett responded to the dispatch call for a potential Section 5150 situation and came to YHS to assess plaintiff for a hold. (UF 18.) Upon arrival at YHS, Dep. Willett checked to see if the San Mateo County Mental Health Assessment and Referral Team (“SMART”) was available to conduct the Section 5150 assessment, but it was not. (UF 19.) Dep. Willett was relayed information from the 911 call made by Austin. (Dkt. No. 51-5 at 3-4.) Austin further provided Dep. Willett with plaintiff's journal entry. (UF 20.)

         Dep. Willett entered the bedroom where plaintiff was located, introduced himself, and tried to have a conversation with her. (UF 21.) The discussion between Dep. Willett and plaintiff is disputed by the parties.^[1] At some point during this discussion, Dep. Willett asked plaintiff to show her arm to him, but plaintiff refused repeated requests to do so. (UF 24.)

         After several failed attempts to secure plaintiff's cooperation, and in view of the troubling journal entry that had led YHS to call for a Section 5150 assessment, plaintiff's earlier actions of hiding in a closet, refusing to show her wrists suggesting that she had harmed herself and her history of self harm, Dep. Willett determined that plaintiff should be taken to a hospital for a Section 5150 hold. (UF 25.) Dep. Willett called for an ambulance to assist with the assessment and medical evaluation of plaintiff, and to transport plaintiff to a hospital for evaluation. (UF 26.) Dep. Willett also called for backup deputies to assist. (UF 27.)

         While Dep. Willett attempted to engage with plaintiff, she remained seated on a bed in her room. (UF 28.) Plaintiff continued to refuse repeated requests to show her arm. (UF 29.) At some point thereafter, paramedics and two other officers, Deputies Devin Crocker and James Brown, arrived to YHS. Plaintiff refused to show her wrists to the paramedics although plaintiff allowed her blood pressure to be taken through a device placed on her finger. (UF 30; see also Dkt. 54-8 at 4.) At some point thereafter, the paramedics left plaintiff's room.

         Plaintiff, Austin, and Deps. Willett, Crocker, and Brown remained in plaintiff's room after the paramedics stepped out.^[2] After approximately fifteen minutes of discussion between Willett and plaintiff in her room in an effort to get plaintiff to show her arms, Dep. Willett warned plaintiff that he and other deputies would be grabbing her wrist because of her non-compliance with officers' instructions and Dep. Willett's determination that plaintiff would be subject to a Section 5150 hold.^[3] (UF 31; see also Dkt. No. 51-5 at 7, 16, 17, 18-19.) Dep. Willett told plaintiff he would count to three and that a deputy would grab each of her wrists to place her on the floor to apply handcuffs. (UF 34.) Deps. Willett and Crocker each grabbed one of plaintiff's wrist using a rear wrist control hold. (Dkt. No. 51-5 at 17; Dkt. No. 54-3 at 8-9; Dkt. No. 54-4 at 5-6.)

         The parties each have different views of the next events:

         Plaintiff's Version: Deps. Willett and Crocker applied a pain compliance maneuver, in other words, pressure to her wrists, prior to any resistance from plaintiff. (Dkt. No. 54-2 at 30-33, 34-35; Dkt. No. 54-3 at 6-7, 8-9; Dkt. No. 54-4 at 5-7, 8.) Based on the rear wrist control hold, plaintiff involuntarily arose from the bed where she had been seated. (Dkt. No. 54-4 at 8; Dkt. No. 63-1 at 7.) While standing, plaintiff was not stiffening, pushing back, or doing anything purposeful with her body. (Dkt. No. 54-5 at 7.) Plaintiff was subsequently slammed to the floor by Deps. Willett and Crocker while Dep. Willett had his arm around plaintiff's throat. (Dkt. No. 54-1 at 11, 13, 14-15, 16.) One of these two deputies had their knee pressed into plaintiff's back while on the floor. (Dkt. No. 54-5 at 3) Willett told plaintiff at this time, “I'm not your friend, I'm not your therapist.” (Dkt. No. 54-1 at 11.) Plaintiff resisted because she could not breathe based on the pressure being applied to her back. (Dkt. No. 54-5 at 8-9, 12-13.) Dep. Brown's handcuffing of plaintiff resulted in abrasions to her wrists. (Dkt. No. 54-5 at 15-16.)

         Defendants' Version: Plaintiff shouted “fuck you” to Dep. Willett. (Dkt. No. 54-2 at 8.) Plaintiff arose from the bed where she had been seated. (Dkt. No. 54-2 at 8.) Plaintiff planted her feet and stiffened her body and stated that she would not get on the floor. (Dkt. No. 51-3 at 20; Dkt. No. 54-2 at 7-8.) Plaintiff tensed her body and went rigid. (Dkt. No. 51-3 at 20; Dkt. No. 54-2 at 8, 32, 38-39; Dkt. No. 54-3 at 9.) At this point, Deps. Willett and Crocker applied a pain compliance maneuver by applying pressure to plaintiff's wrists and back. (Dkt. No. 54-2 at 8, 32-33.) Plaintiff resisted while on the floor. (Dkt. No. 54-2 at 34; Dkt. No. 54-5 at 8-9, 12-13.)

         The following facts during and about the interaction are not materially in dispute: Deps. Willett and Crocker each applied pressure to plaintiff's wrists. (UF 38.) Deps. Willett and Crocker each had a hand on plaintiff's back, with one deputy placing his hand on her lower back, and the other on her upper back and shoulder. (Dkt. No. 54-2 at 22, 28; Dkt. No. 54-5 at 4-5.) While Deps. Willett and Crocker each grabbed one of plaintiff's wrists, plaintiff fell to her knees, then on to her breasts, and then her face made contact with the floor. (Dkt. No. 51-4 at 14-15; Dkt. No. 54-2 at 22, 39.) Plaintiff did not suffer any pain or injuries to her breasts or face. (Dkt. No. 51-4 at 14-15.) Dep. Brown did not attempt to stop Deps. Willett or Crocker from using a pain compliance technique on plaintiff to get plaintiff to the floor. (UF 76.) Because of the incident, Dep. Willett sprained his thumb. (UF 81.)

         Plaintiff did not feel any pain from the rear wrist holds applied by Deps. Willett and Crocker until she was on the floor. (Dkt. No. 60-1 at 5-6.) At no point during this incident did plaintiff attempt to flee. (UF 67.) While the deputies informed plaintiff that they would grab her wrist, they did not warn her specifically that they would inflict pain on her if she continued to refuse to comply with their request to see her wrist. (UF 75.)

         The parties agree that a rear-wrist lock control hold does not become a pain compliance technique until pressure is applied in order to inflict pain on the individual that it is being applied on. (UF 77.)

         The facts following the interaction are not materially in dispute: Once plaintiff was on the floor, handcuffs were applied almost immediately thereafter by Dep. Brown and plaintiff was escorted by Deps. Willett, Crocker, and Brown out of YHS to a gurney. (UF 40.) Once on the gurney, plaintiff was placed in soft restraints. (UF 41.)

         The records of the paramedics who took plaintiff from YHS to the hospital do not document any immediate injuries from the incident, report that “she states that she does not have a complaint at this time, ” and report plaintiff as being “calm.” (UF 43, 44; see also Dkt.No. 13 at 4-5.) Plaintiff did not report any pain in her neck or throat to the doctors at the medical center, the Psychiatric Emergency Services provider, who saw her immediately after the incident. (UF 46.)

         Once plaintiff returned from the Section 5150 hold, Austin took photographs of bruises to plaintiff's wrists. (Dkt. No. 54-1 at 18; see also Dkt. No. 54-5 at 21.) On August 18, 2017, plaintiff reported pain in her neck or throat to doctors at San Mateo Medical Center.^[4] (Dkt. No. 54-10 at 2.)

         The facts regarding the policies of San Mateo County are not materially in dispute: On the continuum of force described in the San Mateo County Sheriff's Office (“SMCSO”) Use of Force policy, control holds and pain compliance techniques are just above light touch and below higher degrees of force, such as restraint devices and pepper spray. (UF 42; see also Dkt. No. 51-14 at 2.) The policy provides that deputies may use reasonable force to effect an arrest, ” and that pain compliance techniques “may be effective in controlling a physically or actively resisting individual.” (Id. at 5.) In a different section, the policy manual further advises deputies that deputies “should consider that taking no action or passively monitoring the situation may be the most reasonable response to the mental health crisis.” (Dkt. No. 54-6 at 40.)

         II. LEGAL STANDARDS

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         A moving party defendant bears the burden of specifying the basis for the motion and the elements of the causes of action upon which the plaintiff will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the plaintiff to establish the existence of a material fact that may affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In the summary judgment context, the court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If the plaintiff “produces direct evidence of a material fact, the court may not assess the credibility of this evidence nor weigh against it any conflicting evidence presented by” defendants. Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir. 2017). “[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from facts are jury functions, not those of a judge.” George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014) (alteration in original) (quotation omitted). Thus “where evidence is genuinely disputed on a particular issue- such as by conflicting testimony-that issue is inappropriate for resolution on summary judgment.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation marks omitted).

         “[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (alteration and internal quotation marks omitted). Thus, “[t]he court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Id. (quoting Wright, et al., Federal Practice and Procedure § 2720, at 335-36 (3d ed. 1998)). If, however, the cross-motions are before ...