Steinmeir v. County of San Diego

          ORDER DENYING DEPUTY FRANK LEYVA'S AND DEPUTY KENNETH EDWARDS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

          JEFFREY T. MILLER, UNITED STATES DISTRICT JUDGE

         In this civil rights action under 42 U.S.C. § 1983, Plaintiff Suzanne Steinmeier (“Plaintiff”) alleges San Diego County Sheriff's Deputies Frank Leyva and Kenneth Edwards (“the Deputies”) used excessive force in violation of her Fourth Amendment rights when they struck her multiple times after she kicked a police dog that was biting her wife. The Deputies now move for summary judgment. (Doc. No. 34.) The motion has been fully briefed and the court finds it suitable for submission on the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1). For the below reasons, the motion is DENIED.

         I. FACTUAL BACKGROUND

         The parties do not dispute that on the evening of April 27, 2015, Plaintiff was driving in Riverside County with her wife, Michelle Rivera (“Rivera”), as a passenger. After being pulled over by a California Highway Patrol (CHP) officer for a broken side mirror, they were informed they both had felony warrants and would be arrested. Plaintiff drove away from the scene and CHP Officers and San Diego County Sheriff's Deputies pursued. A police helicopter joined the chase. Plaintiff sped, ran stop lights, and drove on the wrong side of the road. The vehicle pursuit lasted over 45 minutes. Plaintiff eventually stopped the vehicle on a rural road near where she and Rivera lived. They exited the vehicle, slid down a hill into a dry riverbed, and walked and ran along the riverbed for eight minutes until they stopped and laid down on their backs under some trees. The riverbed into which they fled was dark and rugged. They could be seen, however, by the helicopter crew using night-vision equipment. The helicopter crew advised the officers on the ground as to the suspects' movements and location. Plaintiff and Rivera laid underneath the trees for 22 minutes until the Deputies reached them. At this point, the parties' accounts diverge.

         1. Plaintiff's Account

         According to Plaintiff, while lying on her back, she saw a flashlight and immediately put her hands up. (Doc. No. 43 at 79:7-8, 91:1-6, 109:6-11.) The officer holding the flashlight was a “few feet” in front of her. (Id. at 69:12.) Right after seeing the flashlight, she saw a dog about ten feet away from her feet, (id. at 70:1-2, 12-14; 71:3-12), but it ran past her, (id. at 71:2-5). Plaintiff understood the dog was trying to locate her. (Id. at 70:18-24.) The dog went back to the handler and sat down at the officer's feet. (Id. at 72: 6-10, 17-18.) The dog looked up at the handler like the dog had done something good. (Id. at 109:18-19.) Plaintiff saw the handler staring at them.^[1] (Id. at 72:23.) She and Rivera had their hands up and said, “we surrender.” (Id. at 73:1-10.) The police were “already around” them. (Id. at 109:13.) She was illuminated by multiple flashlights and there were no bushes or boulders between her and the officers. (Id. at 72:11-14, 93:2-9.) The dog was “re-released, ” (id. at 73:12, 108:3-14), and began biting Rivera on her inner thigh, (id. at 72:15-16), but at that point Plaintiff did not attempt to assist Rivera.^[2] (Id. at 73:22-24.) The police “may have” said something prior to the bite. (Doc. No. 34-9 at 55-56.) While handcuffed or while being handcuffed, Plaintiff kicked the dog about three or four times. (Doc. No. 43 at 74:2-20.) The dog handler did not say anything to Plaintiff. (Id. at 75:2-4.) She then got flipped over onto her stomach. (Id. at 75:7.) After being handcuffed, she was hit on her back and head multiple times with a fist and an object that she believed was a flashlight. (Id. at 76:1-9.) Plaintiff also claims that at some point Deputy Leyva said, “that's what you get, you dyke bitch.” (Doc. No. 43 at 77:9-15.)

         2. The Deputies' Accounts

         According to Deputy Leyva, when he and his police dog Bary (“Bary”) arrived on the scene, he was informed that two suspects were lying down somewhere in the dark riverbed area. (Doc. No. 34-9 at 96:2-7.) He was aware the suspects had felony arrest warrants and had just led police on a lengthy chase. (Id. at 98:4-9.) He was not familiar with the area, (id. at 108:5-12), but knew the suspects were familiar with the area, (Doc. No. 34-3 at 3:11-13). At the beginning of his search, before entering the dark riverbed, he yelled for the suspects to come out or they would be bitten. (Doc. No. 34-9 at 111:15-112:14.) After walking a “good distance, ” (id. at 114:16-20), the helicopter guided him to the “general area” of the suspects, (id. at 100:16-17, 114:20). Deputy Leyva claims he saw “silhouettes” and “figures or whatever.”^[3] (Id. at 102:14-17; 116:19-20.) He did not have his flashlight out, but could see despite the darkness because there were five or six officers behind him with flashlights.^[4] (Id. at 110:16-17.) There were bushes, rocks, branches, foliage and a small hill obstructing his view. (Id. at 114:21-115:20.)

         When Deputy Leyva saw the figures or silhouettes, he pointed in that direction and gave Bary an apprehension command. (Id. at 116:21-23.) Deputy Leyva then saw Bary biting Rivera and saw Plaintiff kicking Bary. (Doc. 34-9 at 122.) He heard Plaintiff yelling at him to get the dog off her. (Id.) He twice told her to stop kicking his dog, but she did not obey. (Id.) Neither suspect was handcuffed at that point. (Id.) Deputy Leyva testified that he lunged forward on top of Plaintiff and hit her in the face.^[5] (Id. at 123.) When he struck her, she stopped kicking Bary because it pushed her away just slightly. (Id.) He then glanced over and saw uniforms to his right, and got off Plaintiff because he wanted to grab Bary and get him off Rivera. (Id.) The other deputies were trying to get Plaintiff secured in handcuffs. (Id.) Deputy Leyva testified he did not remember seeing her hands, (id. at 124), but in a subsequent declaration, he stated he could not see her right hand. (Doc. No. 34-3 at 4:14.)

         According to Deputy Edwards, he was following 20 to 30 feet behind Deputy Leyva with his flashlight on. (Doc. No. 34-9 at 138:13-16.) He heard Bary barking and a female screaming and ran over to the area. (Id. at 157:7-9.) He saw Bary biting Rivera and Deputy Leyva on top of Plaintiff while both suspects were on their backs. (Id. at 139.) Plaintiff was trying to kick Bary, and Deputy Leyva was yelling to get off the dog. (Id. at 140:1-2.) Deputy Edwards told Deputy Leyva to get off Plaintiff so that Deputy Leyva could get Bary. (Id. at 142:7-9.) When Deputy Leyva got off the Plaintiff, she flipped over onto her stomach and Deputy Edwards jumped on her. (Id. at 142:13-15, 158:4-7.) Deputy Edwards recognized Plaintiff from her warrant photo and told her to put her hands behind her back, but she did not comply. (Id. at 142:22-143:7.) Deputy Edwards claims she put her hands in her waistband. (Id. at 158:6-7.) He struck her with his flashlight in the right shoulder area. (Id. at 144:2-9.) She did not comply. (Doc. No. 34-2 at 4:25-5:2.) He struck her three more times. (Id. at 5:1-2.) He and another Deputy then handcuffed Plaintiff. (Doc. No. 34-9 at 141:10-12.)

         II. PROCEDURAL HISTORY

         On March 24, 2017, Plaintiff and Rivera filed a complaint in state court under 42 U.S.C. § 1983 alleging violation of their Fourth Amendment right to be free from excessive force by police.^[6] (Doc. No. 1-3.) As Defendants, she named: (1) the County of San Diego; (2) the San Diego County Sheriff's Department; (3) Sheriff William Gore; (4) Deputy Leyva; (5) Deputy Edwards; (6) Deputy Peter Alvarado; and (6) and Does 1 through 10, in both their individual and official capacities. (Doc. No. 1 at 2, 1-5 at 4.) Rivera subsequently dismissed her claims against all Defendants on July 24, 2017. (Doc. o. 1-5 at 98-100.) Rivera was thus voluntarily dismissed from the action without prejudice, leaving Steinmeier as the only Plaintiff. (Id.) On June 12, 2018, Plaintiff amended the Complaint by identifying CHP Officers Brian Keene as Doe 1, (Doc. No. 1-3 at 4), and Willis Whited as Doe 2, (Doc. No. 1-4). Keene and Whited removed this action to federal court on July 16, 2018. (Doc. No. 1.) On August 29, 2019, Deputies Leyva and Edwards filed the instant motion for summary judgment. (Doc. No. 34-1.) Plaintiff filed a response in opposition on September 16, 2019, (Doc. No. 42), and Defendants filed a reply on September 23, 2019, (Doc. No. 46).

         III. LEGAL STANDARD

         A motion for summary judgment shall be granted where “there is no genuine issue as to any material fact and . . . . the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth.” SEC v. Seaboard, 677 F.2d 1301, 1306 (9th Cir. 1982). Summary judgment can only be entered “if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250. The court may not weigh evidence or make credibility determinations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).

         IV. DISCUSSION

         Constitutional violations by persons acting under the color of state law may be redressed by bringing suit in federal court under 42 U.S.C. § 1983. Gomez v. Toledo, 446 U.S. 635, 639 (1980). In a section 1983 claim, the plaintiff must show (1) the action occurred “under color of state law, ” and (2) resulted in the deprivation of rights under the Constitution or federal statute. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988) (citations omitted).

         Under the Fourth Amendment, the force used by police must be objectively reasonable when considering the totality of the circumstances. Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). The objective reasonableness of the force involves a three-part inquiry. Graham v. Connor, 490 U.S. 386, 396 (1989). The court should first examine the type and amount of force used, then assess the government's interests in using the force by looking at “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.” Maxwell v. Cty. of San Diego, 697 F.3d 941, 951 (9th Cir. 2012). These factors are non-exhaustive. Id. The third step is to balance the degree of force against the government interest at stake to determine if the force used was “greater than is reasonable under the circumstance.” Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002). “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. This determination is “ordinarily a question of fact for the jury.” Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997). Accordingly, in excessive force cases, “summary judgment should be granted sparingly.” Maxwell, 697 F.3d at 951; see also Estate of Lopez by & through Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017); Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc). For the below reasons, summary judgment cannot be granted because genuine disputes of material fact exist.

         A. Genuine Disputes of Material Fact

         As discussed above, the parties offer starkly different accounts of what transpired the night of April 27, 2015 during the critical few seconds when Plaintiff and Rivera were apprehended. These differing accounts raise several genuine disputes of material fact. First, the parties dispute whether Plaintiff and Rivera had visibly surrendered prior to Deputy Leyva commanding Bary to apprehend them. Plaintiff claims that Deputy Leyva commanded Bary to attack even though Deputy Leyva saw they were lying down, with their hands raised, and they said, “we surrender.” (Doc. No. 42 at 7-9.) Plaintiff testified that she saw Deputy Leyva staring at them. (Doc. No. 43 at 72:23.) The video also shows that before Bary bit Rivera, one officer was only a few feet away from the suspects and another officer was close by. In contrast, Deputy Leyva claims that when he gave Bary the apprehension command, he saw “two silhouettes laying in the brush underneath a tree, ” but never had a “clear visual” of the silhouettes because it was dark. (Doc. No. 34-1 at 11-12.) He denies the suspects were illuminated by flashlights or that he saw or heard them surrender.^[7] (Doc. No. 34-3 at 4:9-10.)

         Second, the parties dispute when Plaintiff was handcuffed and when force was used. Plaintiff claims she was struck after being handcuffed and placed on her stomach.^[8] (Doc. No. 43 at 75:2-4, 75:7, 76:1-9, 81:16:23.) In contrast, Deputy Leyva claims he punched Plaintiff while she was on her back, while she was kicking Bary, after he repeatedly told her to stop, before he could see her right hand, and before she was handcuffed. (Doc. No. 34-3 at 4:13-18.) Deputy Edwards claims he struck Plaintiff while she was on her stomach with her hand in her waistband, before she was handcuffed, and after she repeatedly refused his commands to show him her hands. (Doc. No. 34-2 at 4:25-5:2.)

         Third, the parties dispute what force was used. As noted above, Deputy Leyva admits he punched Plaintiff once on the right cheek, (Doc. No. 34-3 at 4:13-18), and Deputy Edwards admits he hit Plaintiff four times with his flashlight in the right shoulder area, (Doc. No. 34-2 at 4:25-5:2.) In contrast, Plaintiff initially claimed she was hit with the flashlight between 10 and 20 times. (Doc. No. 43 at 76:10-11.) Plaintiff does not claim she was hit in the face. (Doc. No. 42 at 11:27.) Plaintiff later testified that after she was rolled onto her stomach she felt “like dumps, like hits or whatever” on her head and neck area. (Doc. No. 46-3 at 9-10.) She did not know the number of times she was hit on her head and back area, but stated that it was “a few” and “less than 10 maybe.” (Id. at 10:8-9.) She then stated that “it might have been” the 10 to 20 number she previously stated, (id. at 10:11-22), but went back and forth about whether her previous testimony that she was hit 10 to 20 times was accurate, stating:

I don't know if it's incorrect. I feel different. I don't think that now. I think it's less. . . . I think the number I may have given was - sounded like way - and like too much, but - not that I was doing anything like on purpose. I just don't - I don't remember, you ...