United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING
PLAINTIFF'S CROSS-MOTION (ECF NOS. 38 & 39)
LAWRENCE J. O'NEILL UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
This
case concerns the alleged use of excessive force against and
failure to reasonably accommodate Plaintiff Darcy Harper
(“Plaintiff”) on June 6, 2014 during the course
of his arrest. Plaintiff brought this action pursuant to 42
U.S.C. § 1983 in April 2018 against the arresting
officer, Merced Police Officer Nathaniel McKinnon
(“Officer McKinnon”), the City of Merced (the
“City”), and the County of Merced (the
“County”). The Court, on November 8, 2018,
granted Defendants' motion to dismiss all claims against
the County and the Monell claim against the City.
ECF No. 22. Even though Plaintiff was afforded leave to amend
his Complaint, he declined to do so. As a result, the Court
dismissed the County from this case with prejudice, ECF No.
25, and the Monell claim against the City is no
longer valid.
Before
the Court for decision are the remaining parties' cross
Motions for Summary Judgment. Defendants City and Officer
McKinnon (collectively, “Defendants”) move for
summary judgment on the remaining two claims: the first
claim, brought under § 1983, is based on Officer
McKinnon's alleged excessive use of force; the second
claim is based on the alleged failure to reasonably
accommodate Plaintiff's mental disabilities during the
arrest, as required by the Americans with Disabilities Act
(“ADA”). ECF No. 38. In addition, Plaintiff seeks
partial summary judgment on his § 1983 claim. ECF No.
39. The matters were taken under submission on the papers
pursuant to Local Rule 230(g). ECF No. 44. For the reasons
set forth below, the Court GRANTS Defendants' Motion and
DENIES Plaintiff's Motion. The Court will consider
Defendants' Motion first.
II.
STATEMENT OF FACTS
Using
the parties' Statements of Undisputed Facts
(“SUFs”), the Court will only recount undisputed
material facts regarding Plaintiff's arrest. The parties
have also submitted duplicative body worn camera recordings
from Officer McKinnon of the incident to supplement the SUFs,
which the Court has viewed and construes in light most
favorable to Plaintiff as the Court is considering
Defendants' Motion first. ECF Nos. 38-9, 43
(“Officer McKinnon's Body Worn Camera” or
“BWC”). Before dawn at 4:15 a.m. on June 6, 2014,
Merced Police Officers Brown and McKinnon responded to a call
regarding Plaintiff as an “escaped 5150 with a
weapon.” ECF No. 45, SUF ¶ 1. The code references
California Welfare & Institution Code section 5150, which
applies “[w]hen a person, as a result of a mental
health disorder, is a danger to others, or to himself or
herself, or gravely disabled, ” and “upon
probable cause, take, or cause to be taken, the person into
custody for a period of up to 72 hours for assessment,
evaluation, and crisis intervention, or placement for
evaluation and treatment in a facility designated by the
county for evaluation and treatment and approved by the State
Department of Health Care Services.” Cal. Welf. &
Inst. Code § 5150. The officers had been told also that
Plaintiff had “[swung] a stick at (hospital)
staff.” ECF No. 45, SUF ¶ 2.
Officer
McKinnon's Body Worn Camera was turned on when Officer
McKinnon was approaching a stadium on the campus of
University of California, Merced. Id., SUF ¶ 3;
BWC at 0:01-:35. About three minutes after his BWC was turned
on, Officer McKinnon located Plaintiff hiding behind the
bushes on a hill slope by the stadium. ECF No. 45, SUF
¶¶ 3, 5. Upon noticing Plaintiff, Officer McKinnon
commanded him twice to “get on the ground, ” but
Plaintiff instead rolled down the hill slope away from the
officer. Id., SUF ¶ 2; BWC at 3:12-3:16.
Officer McKinnon in turn chased Plaintiff downhill using the
stadium stairs. BWC at 3:24-3:16. When Officer McKinnon
spotted Plaintiff near the bottom of the hill, he ordered
Plaintiff again to “stay down.” Id. at
3:48-52. Plaintiff again ignored the command. ECF No. 45, SUF
¶ 7. As a result, Officer McKinnon ran towards Plaintiff
for about six seconds; when he was close enough to do so, he
deployed his taser in dart mode against Plaintiff. BWC at
3:51-58. Officer McKinnon did not specifically warn Plaintiff
that he would be tased. Id.
The
taser, however, failed, and Plaintiff again fled. ECF No. 45,
SUF ¶ 8. Officer McKinnon again pursued Plaintiff by
climbing over a retaining wall and dashing uphill. BWC at
4:03-4:15. Closing in on Plaintiff, Officer McKinnon again
commanded Plaintiff to “get on the ground,
”[1] then tased Plaintiff in dart mode the
second time. Id. at 4:14-18; ECF No. 45, SUF ¶
7. Walking closer to Plaintiff while holding his taser and
flashlight, Officer McKinnon commanded Plaintiff again in
rapid succession: “stay down, stay down, do you
understand me?” BWC at 4:19-22. Officer McKinnon was
now a few feet away from Plaintiff, and as he was calling in
for help from other officers, Officer McKinnon commanded
Plaintiff again to “stay down, don't move, arms
down, arms down.” Id. at 4:24-38. Despite the
repeated commands, Plaintiff began to remove the taser probes
from his chest and pushed himself up as though he was trying
to get up on his feet. Id. at 4:38-45. Out of
cartridges to tase Plaintiff in dart mode, Officer McKinnon
moved closer and got on top of Plaintiff to apply a drive
stun with the taser as Officer McKinnon was commanding
Plaintiff to “stop fighting.” ECF No. 45, SUF
¶ 10; BWC at 4:44-52. Officer McKinnon stopped using his
taser, but he and Plaintiff now began to tussle. BWC at
4:53-5:01. To prevent Plaintiff from gaining control of the
taser, Officer McKinnon delivered a knee strike to
Plaintiff's head. ECF No. 45, SUF ¶ 12. After the
strike, both parties rolled downhill; by the time Officer
McKinnon stopped rolling, he was incapacitated by a serious
ankle injury. Id., SUF ¶ 13. Plaintiff was soon
after taken into custody by the other newly arrived officers.
Id., SUF ¶ 14.
III.
LEGAL STANDARD
Summary
judgment is proper if “the movant shows that 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). One principle purpose of “the summary judgment
rule is to isolate and dispose of factually unsupported
claims or defenses.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). The moving party “always
bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Id. at 323. “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for
trial.'” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation
omitted).
“When
the moving party has carried its burden under [Rule 56(a)],
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Id. 586-87 (citations omitted). “To survive a
motion for summary judgment, a nonmoving party must present
‘evidence from which a reasonable jury could return a
verdict in its favor.'” Stephens v. Union Pac.
R.R. Co., 935 F.3d 852, 854 (9th Cir. 2019) (citations
omitted). “The mere existence of a scintilla of
evidence in support of the non-moving party's position is
not sufficient.” Triton Energy Corp. v. Square D
Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citation
omitted). “‘[T]he court's ultimate inquiry is
to determine whether the ‘specific facts' set forth
by the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury
might return a verdict in its favor based on that
evidence.'” Arandell Corp. v. Centerpoint
Energy Servs., Inc., 900 F.3d 623, 628-29 (9th Cir.
2018) (citation omitted).
Material
facts “must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007) (citation omitted). “Factual
disputes that are irrelevant or unnecessary will not be
counted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (citation omitted). “[A]
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 572 U.S. 650,
656 (2014) (citation omitted).
IV.
ANALYSIS
The
Court will begin first with the procedural issue presented by
Plaintiff then the substance of Defendants' Motion.
A.
Plaintiff's Objection to Defendants'
Evidence
In his
Opposition, Plaintiff objects to Defendants' references
to Exhibits 2 (Officer McKinnon's deposition transcript)
and 3 (Plaintiff's deposition transcript) in their SUF.
ECF No. 42 at 13. As Plaintiff rightly asserts, “when a
party relies on deposition testimony in a summary judgment
motion without citing to page and line numbers, the trial
court may in its discretion exclude the
evidence.” Orr v. Bank of Am., NT & SA,
285 F.3d 764, 775 (9th Cir. 2002) (emphasis added). Although
the Court may exclude the evidence, it need not do
so. The Court declines to sustain Plaintiff's objection
as this ruling does not rest on Exhibits 2 and 3-rather, it
rests on facts to which Plaintiff has admitted as undisputed
and the BWC-and because the deposition transcripts are only a
few pages long. Defense counsel, however, are strongly
advised to attend to his obligation to properly reference his
evidence.
B.
Fourth Amendment Right Unreasonable Seizure Claim (1st
Claim)
“In
1871, Congress passed a statute that was later codified at
Rev. Stat. § 1979, 42 U.S.C. § 1983.”
Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017).
“The purpose of § 1983 is to deter state actors
from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citation
omitted). Section 1983 provides that “[e]very person
who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .” 42 U.S.C. §
1983.
In
moving for a judgment of dismissal of this case, Defendants
assert Officer McKinnon's qualified immunity as a defense
to the first cause of action. “Qualified immunity gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions. When properly
applied, it protects ‘all but the plainly incompetent
or those who knowingly violate the law.'”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). The
Supreme Court has repeatedly “stressed the importance
of resolving immunity questions at the earliest possible
stage in ...