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Larson v. Bailiff

United States District Court, S.D. California

July 14, 2016

RONALD BAILIFF, et al., Defendants.


          Hon. Cynthia Bashant United States District Judge.

         Plaintiff Scha Buck Larson filed this Complaint against San Diego Police Sergeant Ronald Bailiff and Officers Andrew Ruiz, Richard Widner, Thomas Curran and Christopher Cummings, stemming from his arrest on November 19, 2011 and ensuing hospital stay on November 20, 2011.[1]

         Plaintiff alleges five counts of excessive force against four officers (Ruiz, Widner, Curran and Cummings) stemming from his November 19th arrest: Count One-excessive force under the Fourth Amendment; Count Two-excessive force under the due process clause of the Fourteenth Amendment; Count Five-torture in violation of Fourth Amendment; Count Six-torture in violation of due process clause of Fourteenth Amendment; and Count Nine-conspiracy to use excessive force and torture in violation of the Fourth Amendment.

         Plaintiff alleges two counts specifically against Officer Widner for his actions in supervising his police dog and being “indifferent to the excessive force / torture of [his] K-9 maulings upon Plaintiff: Count Twelve-filed under the Fourth Amendment and Count Thirteen-filed under the due process clause of the Fourteenth Amendment. And Plaintiff alleges two counts specifically against Sgt. Bailiff for his “supervisory indifferen[ce] in formulating, conspiring and executing the ‘plan’ to take Plaintiff into police custody utilizing the excessive force/torture” by his subordinates: Count Fourteen-filed under the Fourth Amendment and Count Fifteen-filed under the due-process clause of the Fourteenth Amendment.

         Plaintiff files two counts alleging fabrication of police reports: Count Eleven-against the four officers for conspiring to fabricate police reports “to cover-up the excessive force/torture”; and Count Sixteen-against Sgt. Bailiff for conspiring with the other subordinate officers to fabricate police reports to cover up the excessive force/torture.

         The remaining five counts concern Plaintiffs hospitalization at Alvarado Hospital. Plaintiff claims that on November 20, 2011, Officer Ruiz used excessive force when he “intravenously involuntarily intoxicat[ed] Plaintiff.” Hence, Plaintiff files five counts against Officer Ruiz alone: Count Three-for excessive force under the Fourth Amendment; Count Four-for excessive force under the due process clause of the Fourteenth Amendment; Count Seven-for torture under the Fourth Amendment; Count Eight for torture under the due process clause of the Fourteen Amendment; and Count Ten for conspiracy to “execute the plan to intravenously intoxicate Plaintiff.”

         Defendants move for summary judgment for all the Counts in the Complaint. (ECF Nos. 179-82.) The Court gave Plaintiff notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), that Defendants had filed a Motion for Summary Judgment which, if granted, under Rule 56 of the Federal Rules of Civil Procedure, could result in dismissal of the case. (ECF No. 183.) The Court ordered Plaintiff to respond and file his opposition by April 26, 2016, or, if he did not intend to oppose, to file his notice of non-opposition by that date. (ECF No. 183.) Plaintiff has failed to do either.

         The Court, having carefully reviewed all the documents submitted by the Defendants, finds there is no genuine issue of material fact in this case. For the following reasons, the Motions for Summary Judgment are GRANTED and judgment is entered in favor of the Defendants and against the Plaintiff.


         A. Undisputed Facts

         On November 19, 2011, at approximately 12:50 p.m., San Diego Police Department (“SDPD”) received a report of vandalism in progress at a laundry room in the Pacific Sands Motel, 4449 Ocean Blvd. An unknown male, later identified as the plaintiff in this case, had reportedly locked the door to the laundry room and barricaded himself inside. (Bailiff Decl. ¶ 2, ECF No. 179-5.) The owner of the motel had unsuccessfully attempted to get Plaintiff to come out. (Id.) However, Plaintiff kicked out the back door of the laundry room and fled the scene. (Id.) Plaintiff was described “as appearing to be on something with large eyes as big as saucers.” (Id.)

         Shortly thereafter, SDPD dispatch received a second call of a burglary in progress at an apartment complex located at 628 Diamond St., not far from the Pacific Sands Motel. (Whetstine Decl. Ex 1, ECF No. 179-12.) The report indicated someone was banging around in the laundry room and possibly destroying things. (Id.)

         By the time police arrived on the scene, Plaintiff had broken through from the laundry room into two adjacent garages and barricaded himself inside the second garage. (Bailiff Decl. ¶ 4; Widner Decl. ¶ 3, ECF No. 179-6; Reichner Decl. ¶ 4, ECF No. 179-19.) Plaintiff appeared to be pounding on things in the garage and trying to break through the wall of the garage.[2] (Bailiff Decl. ¶ 4.)

         Police Officers Widner and Welsh entered the laundry room and saw that someone had broken through the dry wall in the laundry room and created a hole between the laundry room and the garage. (Widner Decl. ¶ 4; Welsh Decl. ¶ 2, ECF No. 179-10.) They also saw that Plaintiff had barricaded the hole he had created by placing numerous large heavy objects over the hole. (Widner Decl. ¶ 6.)

         Officer Widner called out to Plaintiff and told him to surrender or Officer Widner would send a police dog in to bite him. (Widner Decl. ¶ 5; Welsh Decl. ¶ 4.) He ordered Plaintiff repeatedly to come out.[3] (Widner Decl. ¶ 6; Welsh Decl. ¶ 4; Reichner Decl. ¶ 5.) When Plaintiff did not respond, Officer Widner sprayed pepper spray through the hole in the dry wall. (Widner Decl. ¶ 6; Welsh Decl. ¶ 4.)

         While Plaintiff was in the garage, several officers identified themselves as SDPD officers and ordered Plaintiff to come outside.[4] (Bailiff Decl. ¶¶7, 10; Widner Decl. ¶ 6; Cummings Decl. ¶¶ 2, 5, ECF No. 179-7; Curran Decl. ¶ 5, ECF No. 179- 8; Ruiz Decl. ¶ 3; Welsh Decl. ¶ 6; Easter Decl. ¶¶ 2, 6, 8, ECF No. 179-13; Rao Decl. ¶ 5, ECF No. 179-17; Reichner Decl. ¶ 6.) At some point, Plaintiff broke a gas line releasing gas into the area and forcing police to evacuate until the fire department could turn off the gas to the apartment complex. (Bailiff Decl. ¶¶ 8-9; Widner Decl. ¶ 7; Cummings Decl. ¶ 4.) Also, at some point, Plaintiff admits trying to crawl out of the garage through the ceiling drywall. (Larson Dep. 28.)

         Police had some difficulty opening the garage door to get Plaintiff out of the garage, in part because Plaintiff had jammed something into the door to prevent it from opening. (Ruiz Decl. ¶ 5; Welsh Decl. ¶ 9.) Thus, Officer Ruiz had to force the garage door open by hand. (Id.) Once the garage door was opened, Plaintiff was arrested. During the arrest, he was hit by the arresting officers and tased in the right shoulder receiving contusions and abrasions. He was also bitten by a police dog, resulting in “multiple linear scrapes consistent with teeth marks but no deeper lacerations.” (Jacobs Decl. ¶ 10, ECF No. 179-16; Bailiff Decl. ¶ 13.) The dog bite was not through the skin and did not require sutures. (Jacobs Decl. ¶ 10.)

         Paramedics were called and Plaintiff was transported to Alvarado Hospital. (Bailiff Decl. ¶ 18.) The paramedics in the ambulance noticed Plaintiff had significant tachycardia with a heart rate of 140 or more, which is consistent with drug-induced excited delirium. (Jacobs Decl. ¶ 8.) At the emergency room, Plaintiff exhibited aggressive and bizarre behavior. (Id. ¶ 10.) He was restless, diaphoretic, agitated, and uncooperative. (Id. ¶ 9.) His IVs became disconnected because of his agitation. (Id.) He required two separate doses of Ativan and a dose of the anti-psychotic drug Geodon to calm him down. (Id.)

         Tests at the hospital show that Plaintiff exhibited elevated CPK, which is synonymous with rhabdomydiysis, which means skeletal muscle breakdown commonly associated with methamphetamine abuse. (Jacobs Decl. ¶ 11.) This is a condition that develops over hours, not minutes “and, therefore, had to have been present before [Plaintiff’s] encounter with the police.” (Id.)

         At the Hospital, American Forensic Nurse Leah Harden drew Plaintiff’s blood.[5] (Graham Decl. ¶ 2, ECF No. 179-14.) Plaintiff tested positive for methamphetamine, opiates, and THC. (Jacobs Decl. ¶ 12.) His drug levels were almost six times that of normal drug-abuse level. (Id.) He exhibited extremely toxic levels of methamphetamine. (Id. ¶ 7.) His vital signs also showed an elevated temperature and heart rate. (Id.) Additional laboratory tests showed renal dysfunction and rhabdomyolysis. (Id.) All of this is consistent with Plaintiff’s behavior including agitated delirium. (Id. ¶ 12.) Dr. Jacobs opines that individuals, such as Plaintiff, exhibiting agitated delirium, are “well known to exhibit almost superhuman strength.” (Jacobs Decl. ¶ 6.)

         B. Disputed Facts

         1. Plaintiff’s Version of the Arrest[6]

         Plaintiff claims he exited the garage with his hands up and walked straight out. (Larson Dep. 31-32.) He said he was standing with his hands up when officers ran up to him and started hitting him. (Id. at 33.) Plaintiff testified officers knocked him to the ground where he remained in a fetal position without kicking, yelling, flailing, or struggling in any way. (Id. at 36-37.) However, he also was not putting his hands behind his back to be handcuffed. (Id.) Officers did tell him to stop resisting. (Id. at 42.) He did not understand this comment since he was not resisting. (Id. at 43.) He did not understand the officers’ reaction because he did not believe he had committed any crime at that point (although he admits breaking into the laundry room, breaking through to the garages, putting 5-6 holes in the dry wall, breaking a gas line and attempting to crawl through the ceiling drywall in the garage). (Id. at 14, 28.)

         Plaintiff said the police dog did not bite him immediately, so Officer Widner picked up Plaintiff’s leg and swung it across the dog’s muzzle five times, each time resulting in a dog bite from the police dog. (Larson Dep. 51-57.) Each time he could hear the officers laughing and saying “good boy.” (Id. at 57.) Plaintiff did not try to pull away from the dog or kick back. (Id. at 55.)

         2. All Others’ Version of the Arrest

         The officers and witnesses at the scene say otherwise. They claim Plaintiff came running out of the garage and charged the officers fists up “look[ing] like he was in a crazed state.” (Bailiff Decl. ¶ 12; see also Widner Decl. ¶ 9; Cummings Decl. ¶ 7; Curran Decl. ¶ 7; Ruiz Decl. ¶ 6; Welsh Decl. ¶ 10; Reichner Decl. ¶ 9.) Plaintiff was screaming, appeared in a rage, and refused to comply with the officers’ orders to get on the ground. (Bailiff Decl. ¶ 12; Welsh Decl. ¶ 11; Reichner Decl. ¶ 10.) Thus, Officer Widner released his police dog. (Widner Decl. ¶ 14; Cummings Decl. ¶ 8.) The dog took Plaintiff to the ground. (Widner Decl. ¶ 14.) Plaintiff responded by fighting with and kicking the dog. (Id.) The dog did not appear to have any effect on Plaintiff. (Curran Decl. ¶ 5; Ruiz Decl. ¶ 7.) Plaintiff also struggled and fought with the officers who were trying to get his hands behind his back so they could handcuff him. (Bailiff Decl. ¶ 14; Cummings Decl. ¶ 9; Curran Decl. ¶ 9; Ruiz Decl. ¶ 8; Welsh Decl. ¶ 12; Reichner Decl. ¶ 12.)

         Officers repeatedly told Plaintiff to stop resisting and to put his hands behind his back but he refused to comply. (Bailiff Decl. ¶ 14; Curran Decl. ¶ 9; Ruiz Decl. ¶ 9.) Therefore, Officer Ruiz applied a carotid restraint on Plaintiff which worked temporarily and enabled the officers to get one handcuff on, but Plaintiff then resumed struggling and fighting. (Bailiff Decl. ¶¶ 14, 16; Cummings Decl. ¶ 10; Curran Decl. ¶¶ 9-10; Ruiz Decl. ¶ 8.)

         Officer Ruiz thus deployed his taser to Plaintiff’s shoulder and the officers were able to handcuff Plaintiff’s other hand. (Bailiff Decl. ¶ 17; Cummings Decl. ¶ 11; Curran Decl. ¶ 10; Ruiz Decl. ¶ 9.) Once Plaintiff was handcuffed, he showed signs of excited delirium. (Bailiff Decl. ¶ 18; Widner Decl. ¶ 16; Cummings Decl. ¶ 12; Curran Decl. ¶ 11.) “His eyes were dilated, he was extremely sweaty, he was yelling irrational things, he was violently shaking and his body began to tense up.” (Bailiff Decl. ¶ 18; Widner Decl. ¶ 16; Cummings Decl. ¶ 12; Curran Decl. ¶ 11; Ruiz Decl. ¶ 13.) Hence, the officers called paramedics to the scene. (Id.)

         Officers did not pick up Plaintiff’s leg and hit the police service dog with it. (Bailiff Decl. ¶ 20; Widner Decl. ¶ 18; Cummings Decl. ¶ 14; Curran Decl. ¶ 13; Ruiz Decl. ¶ 10; Welsh Decl. ¶ 16; Easter Decl. ¶ 13; Reichner Decl. ¶ 14.) They were not laughing or saying “good boy” to the dog. (Bailiff Decl. ¶ 20; Widner Decl. ¶ 18; Cummings Decl. ¶ 14; Curran Decl. ¶ 13; Welsh ...

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