The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 LISA BELYEW, No. 2:17-cv-0723 MCE CKD P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 LARRY LORMAN, et al.,
15 Defendants.
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17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil
18 rights under 42 U.S.C. §1983. This action is proceeding on a claim for damages based upon
19 excessive force. The claim arises under the Fourth Amendment and is against Larry Lorman, a
20 Colusa police officer. ECF Nos. 25, 27 & 35. Defendant Lorman’s motion for summary
21 judgment is before the court.
22 I. Summary Judgment Standard
23 Summary judgment is appropriate when it is demonstrated that there “is no genuine
24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
25 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by
26 “citing to particular parts of materials in the record, including depositions, documents,
27 electronically stored information, affidavits or declarations, stipulations (including those made for
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1 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.
2 Civ. P. 56(c)(1)(A).
3 Summary judgment should be entered, after adequate time for discovery and upon motion,
4 against a party who fails to make a showing sufficient to establish the existence of an element
5 essential to that party’s case, and on which that party will bear the burden of proof at trial. See
6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an
7 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
8 Id.
9 If the moving party meets its initial responsibility, the burden then shifts to the opposing
10 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita
11 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the
12 existence of this factual dispute, the opposing party may not rely upon the allegations or denials
13 of their pleadings but is required to tender evidence of specific facts in the form of affidavits,
14 and/or admissible discovery material, in support of its contention that the dispute exists or show
15 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.
16 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the
17 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the
18 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
19 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is
20 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving
21 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
22 In the endeavor to establish the existence of a factual dispute, the opposing party need not
23 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
24 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
25 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce
26 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”
27 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963
28 amendments).
1 In resolving the summary judgment motion, the evidence of the opposing party is to be
2 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the
3 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475
4 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
5 obligation to produce a factual predicate from which the inference may be drawn. See Richards
6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902
7 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than
8 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record
9 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
10 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
11 II. Plaintiff’s Allegations
12 In her March 2, 2018 amended complaint, plaintiff alleges as follows under the penalty of
13 perjury:
14 On February 2, 2016, I was being arrested at my motel room by
Officer Lorman. During his “search” he grabbed my buttocks in an
15 aggressive manner while I was screaming at him to stop. He choked
me on the way to the car. He left fingerprint bruises on my buttocks.
16 . .
17 Plaintiff also alleges that during the arrest she suffered from bruises as a result of
18 handcuffs which were too tight and scars on her ankles from being “hog tied.” The court notes
19 that plaintiff does not challenge the fact that she was arrested or the initial application of
20 handcuffs.
21 III. Applicable Fourth Amendment Standards
22 Claims of excessive force during an arrest are evaluated under the Fourth Amendment.
23 Graham v. Connor, 490 U.S. 386, 395 (1989). “The Fourth Amendment requires police officers
24 making an arrest to use only an amount of force that is objectively reasonable in light of the
25 circumstances facing them.” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007).
26 In determining the reasonableness of force used, courts consider, among other things, the severity
27 of the crime at issue, whether the suspect posed an immediate threat of harm, whether the suspect
28 was actively resisting arrest or attempting to evade arrest by flight, the availability of alternative
1 methods of detention and the plaintiff’s mental and emotional state. Brooks v. Clark County,
2 828 F.3d 910, 920 (9th Cir. 2016).
3 IV. Defendant’s Arguments and Analysis
4 A. Force Used Was Reasonable
5 Defendant Lorman asserts there is no genuine issue of material fact as to whether
6 excessive force was used against plaintiff in violation of the Fourth Amendment when defendant
7 arrested plaintiff on February 2, 2016. Defendant provides an affidavit with his motion. Most
8 notably, defendant asserts:
9 1. As plaintiff was put in handcuffs, defendant removed a fanny pack, belt and “sheath”
10 for a knife from the back of plaintiff’s waistline. As this occurred, plaintiff yelled a number of
11 times “don’t touch my ass!” Defendant does not deny he touched plaintiff’s buttocks, but asserts
12 that the touching was not sexual in nature. After the defendant applied the handcuffs plaintiff
13 repeatedly accused defendant of having touched her buttocks.
14 2. While he was placing plaintiff in the back of his patrol car, plaintiff began to yell at
15 defendant not to touch her neck. Defendant does not recall touching her neck. Regardless, he did
16 not choke plaintiff.
17 Defendant Lorman provides a video of his interactions with plaintiff and her arrest taken
18 from defendant’s body-cam. Unfortunately, the video is of minimal assistance in resolving
19 whether defendant grabbed plaintiff’s buttocks and causing plaintiff injury as plaintiff alleges.
20 While the video does not contradict any of defendant’s assertions as to his removal of plaintiff’s
21 fanny pack, the video is not conclusive as to whether excessive force was used due to poor
22 camera angle and lack of light. ECF No. 54, file 01801916 at 20:00-20:30. Construing all of the
23 evidence before the court in favor of plaintiff as the court must, including plaintiff’s allegations
24 that she suffered from bruises as a result of defendant grabbing her buttocks, there is at least a
25 genuine issue of material fact as to whether excessive force was used.
26 As for plaintiff’s allegations concerning choking, it does appear from the video that
27 defendant at least briefly placed his hands on plaintiff’s neck as part of an attempt to put plaintiff
28 into his police car as plaintiff resisted, threatened, and berated defendant. ECF No. 54, file
1 01801924 at 0:00-1:10. But, considering plaintiff’s clear and constant screaming “don’t put your
2 hands on my neck” the court concludes that it is impossible that she was being choked to a degree
3 which would amount to excessive force under the Fourth Amendment. Further, as reflected in the
4 video, plaintiff never complains about being choked; rather she takes issue with the defendant
5 placing his hands on her neck.
6 Defendant does not address any claim by plaintiff concerning the use of handcuffs
7 independent of a “hobble” device, which binds handcuffs to feet raising legs from the ground
8 while the person restrained lies on her stomach, and plaintiff does not argue that such a claim
9 should survive defendant’s motion for summary judgment. Again, the only allegation by plaintiff
10 in her complaint is that she suffered bruises as a result of the use of handcuffs. In the video
11 plaintiff did not complain about the handcuffs being too tight when they were applied or at any
12 time prior to the “hobble” device being attached to the handcuffs which occurred about 30
13 minutes later. Her lack of complaint on this point is particularly telling in that she repeatedly
14 threatened and berated defendant, and continually complained about the touching of her buttocks
15 and neck, a flashlight being shined in her face, and that she was cold. Thus, the court concludes
16 that any claim plaintiff might have regarding the tightness of handcuffs independent of the use of
17 the “hobble” device lacks sufficient factual support entitling defendant to summary judgment.
18 As for the initial application of the “hobble” device, the video establishes that this was
19 reasonable under the circumstances. Plaintiff repeatedly attempted to cause damage by kicking
20 one of the back doors of defendant’s police car while she was in the back seat and handcuffed and
21 would not stop despite defendant’s orders. ECF No. 54, file 01801924 at 8:00-19:30, 22:30-end;
22 01801932x9DF46 at 0:00-2:25. Further, at the time she was “hobbled” plaintiff did not voice any
23 complaint regarding the binding being too tight and instead mostly continued her barrage of
24 threats and name calling directed at defendant and the officers assisting.
25 Nevertheless, plaintiff alleges she suffered injuries as a result of the “hobble” and
26 defendant does not point to evidence indicating this was not due to prolonged use of the “hobble.”
27 The video provided by defendant only depicts application of the “hobble,” not the duration of
28 time plaintiff was restrained. Again, as the court understands, the “hobble” caused plaintiff’s
1 hands to be connected to her feet while her feet were pointing upward. Forcing plaintiff to
2 remain in this position for a prolonged period of time and at a time when use of the “hobble” was
3 no longer reasonable, could produce injury even if the handcuffs and loop around plaintiff’s feet
4 were not tied too tight. Accordingly, while the initial application of the “hobble” was reasonable,
5 the length of time it was used may not have been.
6 B. Qualified Immunity
7 Defendant also asserts he is entitled to summary judgment under the “qualified immunity”
8 doctrine. “Government officials enjoy qualified immunity from civil damages unless their
9 conduct violates ‘clearly established statutory or constitutional rights of which a reasonable
10 person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting
11 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In analyzing a qualified immunity defense, the
12 court must consider the following: (1) whether the alleged facts, taken in the light most favorable
13 to the plaintiff, demonstrate that defendant's conduct violated a statutory or constitutional right;
14 and (2) whether the right at issue was clearly established at the time of the incident. Saucier v.
15 Katz, 533 U.S. 194, 201 (2001).
16 The court addressed whether plaintiff’s claims survive the first part of the qualified
17 immunity analysis above. Plaintiff’s claim concerning injuries to her buttocks is supported by
18 sufficient evidence to survive defendant’s motion for summary judgment and defendant has not
19 met his burden to show there is no genuine issue of material fact as to whether the duration of
20 time plaintiff was forced to lay on her stomach with her feet and hands tied together was
21 reasonable. As to those claims, plaintiff’s right to not be subjected to excessive force under the
22 Fourth Amendment was clearly established at the time she was arrested by defendant and the
23 facts alleged by plaintiff are not so unique that defendant was not on notice of violations of the
24 Fourth Amendment if defendant acted as plaintiff alleges he did.
25 In accordance with the above, IT IS HEREBY RECOMMENDED that:
26 1. Defendant’s motion for summary judgment (ECF No. 53) be denied as to plaintiff’s
27 Fourth Amendment excessive force claims concerning her allegation that defendant grabbed her
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1 | buttocks causing bruises and the duration of time plaintiff was forced to lie on her stomach with
2 | her feet and hands tied together; and
3 2. Defendant’s motion for summary judgment be granted in all other respects.
4 These findings and recommendations are submitted to the United States District Judge
5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days
6 | after being served with these findings and recommendations, any party may file written
7 | objections with the court and serve a copy on all parties. Such a document should be captioned
8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
9 | objections shall be served and filed within fourteen days after service of the objections. The
10 | parties are advised that failure to file objections within the specified time may waive the right to
11 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).
12 | Dated: February 10, 2020 rd f | Gx
13 CAROLYN K DELANEY
14 UNITED STATES MAGISTRATE JUDGE
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