Harper v. City of Merced

          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the Court dismissed the County from this case with prejudice, ECF No. 25, and the Monell claim against the City is no longer valid.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 ...