The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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12 FELIX SANCHEZ, JR., No. 2:19-cv-01086-WBS-DB
13 Plaintiff,
14 v. MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT
15 CITY OF ROSEVILE; ROSEVILLE
POLICE DEPARTMENT; DANIEL
16 MEDINA; CURTIS WATKINS; ADARIS
WILSON; BRANDON FERNANDEZ; DOES
17 1 through 3, inclusive,
18 Defendants.
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21 Plaintiff Felix Sanchez, Jr. (“plaintiff”) brought this
22 action against the City of Roseville (“Roseville”); the Roseville
23 Police Department; Officers Daniel Medina, Curtis Watkins, and
24 Adaris Wilson; Sergeant Brandon Fernandez; and DOES 1-3 seeking
25 damages against defendants under 42 U.S.C. § 1983 for violation
26 of the Fourth Amendment and malicious prosecution, and for
27 violation of the Tom Bane Civil Rights Act, California Civil Code
28 § 52.1(c). Before the court is the Motion for Summary Judgment
1 brought by the City of Roseville, Roseville Police Department,
2 Officers Daniel Medina, Curtis Watkins, Adaris Wilson, and
3 Sergeant Brandon Fernandez. (Defs.’ Mot. for Summ. J.) (Docket
4 No. 11.)
5 I. Factual and Procedural Background1
6 1 Plaintiff makes several evidentiary objections to
defendants’ Separate Statement of Undisputed Facts on the grounds
7 that the statements are undisputed but irrelevant or vague. (See
Pl.’s Resp. to Statement of Undisputed Facts) (Docket No. 14.)
8 “[O]bjections to evidence on the ground that is irrelevant,
speculative, and/or argumentative, or that it constitutes an
9 improper legal conclusion are all duplicative of the summary
judgment standard itself, yet attorneys insist on using
10 evidentiary objections as a vehicle for raising this point. A
court can award summary judgment only when there is no genuine
11 dispute of material fact. It cannot rely on irrelevant facts,
and thus relevance objections are redundant.” Burch v. Regents
12 of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006.)
13 Additionally, the Ninth Circuit has long held that “to
survive summary judgment, a party does not necessarily have to
14 produce evidence in a form that would be admissible at trial, as
long as the party satisfies the requirements of Federal Rule of
15 Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37
(9th Cir. 2003.) “As a practical matter, the court finds this
16 entire exercise of considering evidentiary objections on a motion
for summary judgment to be futile and counterproductive.” See
17 Burch, 433 F. Supp. 2d at 1122. Accordingly, the court denies
these evidentiary objections at this time.
18
Defendants make three evidentiary objections to the exhibits
19 submitted by plaintiff in opposition to defendants’ motion for
summary judgment. They first argue that plaintiff’s citation to
20 the printout from the Roseville Police Department website lacks
foundation and is not properly authenticated. (See Pl.’s Opp’n.
21 to Mot. for Summ. J., Ex. 1. (Docket No. 12).) The printout is
undated, and plaintiff cites no evidence that the Roseville
22 Police Department had the capabilities described on the page at
the time of the subject incident in May 2018. The Ninth Circuit
23 has “repeatedly held that ‘documents which have not had a proper
foundation laid to authenticate them cannot support [or defend
24 against] a motion for summary judgment.’” Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (quoting Canada
25 v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)).
Accordingly, the court will sustain this evidentiary objection.
26
Defendants next object to the deposition testimony of
27 Lieutenant Mancini that Officer Medina was released from
probation because he struggled to assess situations as they
28 evolved. (See Pl.’s Opp’n. to Mot. for Summ. J., Ex. 14 Dep. Tr.
1 On May 15, 2018, Roseville Police Department (“RPD”)
2 Officers Medina, Watkins, and Wilson were on patrol in the City
3 of Roseville. (See Undisputed Material Fact (“UMF”) 1, Docket
4 No. 11-2).) At approximately 11:10 P.M., an anonymous caller,
5 later confirmed to be plaintiff’s niece Olivia Sanchez, called
6 the City of Roseville’s non-emergency police dispatch line and
7 stated that she wished to report a truck on her street. (See UMF
8 8.) She said that “a couple of guys just got home. Honestly, by
9 the way that they kind of got out of the truck, I would assume
10 that they are drunk, and the truck is parked the wrong way.”
11 (Id.) She later testified in a deposition that prior to her
12 call, she happened to be driving through an intersection down the
13 street from plaintiff’s residence when she saw the truck parked
14 in front of plaintiff’s residence and the occupants get out of
15 the vehicle. (See UMF 10.)
16 At approximately 11:12 P.M., RPD dispatch radioed to
17 the officers that there was a reported potential violation of
18 California Vehicle Code § 23152, driving under the influence.
19 (See UMF 12–14.) Officers Watkins and Medina arrived at
20 approximately 11:17 P.M. and located an unoccupied white Chevy
21 Silverado pick-up truck parked on the left side of the road with
22
of Lt. Phil Mancini at 24:10-25:20.) Defendants contend this is
23 inadmissible character evidence because the subject incident was
not one of the reasons why Officer Medina was released. The
24 defendants also object to the Placer County Jail Records which
plaintiff attempts to use to demonstrate his claim that the
25 officers did not have reasonable suspicion that plaintiff was
intoxicated. (See Pl.’s Opp’n. to Mot. for Summ. J., Ex. 2 at
26 16–25.) Because the court does not rely on these documents in
resolving the instant motion, the court need not decide these
27 evidentiary objections at this time.
28
1 its driver’s side tires closest to the curb in front of the
2 residence at 309 Lorraine Avenue (later determined to be
3 plaintiff’s residence). (See UMF 18.) Officer Wilson arrived at
4 the residence at approximately 11:20 P.M. (See UMF 20.) The
5 vehicle was unoccupied and there was nobody in the nearby area.
6 (See UMF 21.) Officers Watkins and Medina discussed the
7 situation and then Officer Medina started writing a parking
8 citation for a violation of Roseville Municipal Code section
9 11.20.050 which provides: “No person shall stop, park or leave
10 standing a vehicle on the left-hand side of a two-way street.”
11 (See UMF 22.)
12 When Officer Medina was preparing a citation, plaintiff
13 walked down the driveway of the residence at 309 Lorraine Avenue
14 toward them. (See UMF 24.) Plaintiff suspected that the
15 officers were writing a ticket for the truck. (See UMF 26.)
16 Plaintiff and the officers then had a conversation. (See UMF
17 27.) Plaintiff informed the officers that the truck belonged to
18 his brother, Steve Sanchez, but that he had driven the truck and
19 parked it where it was located. (See UMF 28.) Officer Medina
20 asked plaintiff if he had been drinking. (See UMF 29.)
21 Plaintiff stated that he drank three beers earlier that evening.
22 (See UMF 30.) Officer Medina asked plaintiff if he had anything
23 to drink since returning home and plaintiff refused to answer the
24 question. (See UMF 31.) Plaintiff stated that he could get
25 someone to move the truck or they could ticket it. (See UMF 33.)
26 Plaintiff stated that he was going back inside, turned around,
27 and began walking toward his residence. (See UMF 34.)
28 As plaintiff turned and started walking toward his
1 residence, the officers said something to the effect of “Come
2 here” and “You can’t just leave.” (See UMF 35.) Plaintiff took
3 approximately two more steps towards his home. (See UMF 36.)
4 Officer Medina grasped plaintiff on the left while Officer Wilson
5 grasped plaintiff on the right to stop him from continuing to
6 walk away from them. (See UMF 37.) Plaintiff is approximately
7 5’11” tall and weighs 250 pounds. (See UMF 25.) Plaintiff
8 flexed his arms and tensed up.2 (See UMF 38.) Officer Wilson
9 used a “leg sweep” maneuver, putting his leg behind plaintiff’s
10 legs and pulling plaintiff backward over his leg, to take
11 plaintiff to the ground. (See UMF 39.) The officers took
12 plaintiff to the ground on his back and then rolled plaintiff
13 onto his stomach. (See UMF 40.) Plaintiff’s arms were
14 underneath his body when he was rolled onto his stomach. (See
15 UMF 41.) The officers yelled at plaintiff to stop resisting.
16 (See UMF 42.)3 After the officers handcuffed plaintiff, they
17 picked him up and asked him if he was injured, to which he said
18 no. (See UMF 44.) The officers then walked plaintiff to Officer
19 Wilson’s patrol vehicle and put him in the back seat. (See UMF
20 45.)
21 Officer Watkins requested for a patrol supervisor,
22
2 Plaintiff contends that he did not actively resist but
23 rather was being pulled backwards down his driveway and his
reactions were an involuntary movement to regain his balance to
24 keep from falling. (See Pl.’s Resp. to Statement of Undisputed
Facts, Fact 38.)
25
3 Plaintiff contends that he was not resisting, but was
26 unable to move his arms from under his body after the officers
rolled him over onto his arms and that he told the officers, “I’m
27 not resisting, pull my f***ing arms!” (See Pl.’s Resp. to
Statement of Undisputed Facts, Fact 37.)
28
1 Sergeant Fernandez, to respond to the scene. (See UMF 46.)
2 Sergeant Fernandez spoke to plaintiff while plaintiff was in the
3 back of Officer Wilson’s patrol vehicle. (See UMF 48.) Sergeant
4 Fernandez read plaintiff his Miranda Rights and plaintiff
5 indicated that he understood them. (See UMF 49–50.) Sergeant
6 Fernandez informed plaintiff that the vehicle was parked the
7 wrong way on the street to which plaintiff responded: “I know.”
8 (UMF 51.) Plaintiff told Sergeant Fernandez that he did not want
9 to re-park the vehicle because he was concerned it could subject
10 him to being arrested for driving under the influence (“DUI”).
11 (See UMF 52.) Plaintiff explained to Sergeant Fernandez that he
12 had been at a concert for the Downtown Tuesday Night in
13 Roseville, went and got some fast food, had a few beers, and then
14 his wife looked out at the house and noticed the police were
15 there. (See UMF 53.) Plaintiff stated that he “didn’t want to
16 get in the truck and drive because, you know, like I said, I’m
17 not, like, totally wasted but- you know, legally drunk, but I
18 don’t wanna take that chance because, you know, I have a
19 commercial license.” (Id.)
20 Plaintiff told Sergeant Fernandez that he had told the
21 other officers that he had driven the vehicle earlier and parked
22 it where it was parked. (See UMF 54.) Plaintiff told Sergeant
23 Fernandez that he said to the officers “I’m going back inside” to
24 which they responded “Well, come here. You’re not-- you can’t
25 just leave . . .” to which plaintiff replied “Well, I’m going
26 back inside.” (See UMF 55.) Sergeant Fernandez told Plaintiff:
27 “So you’re -- you’re intoxicated at this point” and plaintiff
28 responded: “I said I’ve had -- I’m not denying that I didn’t have
1 a few beers you know? But like I said, with a commercial
2 license, I’m not gonna get in a truck and give them the
3 opportunity to say, ‘Oh, now you’re driving?’” (See UMF 56.)
4 Sergeant Fernandez told plaintiff that he thought that the main
5 reason plaintiff was in the back of the police car was because
6 the other officers wanted plaintiff to stop. (See UMF 57.)
7 Sergeant Fernandez told plaintiff that the other officers “gave
8 you a lawful order not to go back inside and you tried to go back
9 inside and that’s -- could you -- could we agree on that?” (Id.)
10 Plaintiff responded: “Yeah, they said, ‘Come here.’ I said -- I’m
11 in the driveway, so you know, ‘Okay.’ I’m -- I’m home . . . . I’m
12 not bothering anybody, just trying to find out. And, you know, I
13 don’t know why they didn’t just say why they were here.” (See
14 UMF 58.) Sergeant Fernandez said: “Okay. So, you tried to go
15 back inside, they -- had to physically stop you from going bac
16 inside. Is that what happened?” (See UMF 59.) Plaintiff
17 replied: “I was in my driveway.” (See UMF 60.) Later, Sergeant
18 Fernandez asked plaintiff whether he was injured or needed
19 medical attention and plaintiff stated that he would not go to
20 the doctor for this. (See UMF 61–62.) Plaintiff also told
21 Sergeant Fernandez that when the officers grasped him, he “tensed
22 up.” (See UMF 63.)
23 Plaintiff was arrested and transported to jail by
24 Officer Wilson for violating California Penal Code Section
25 148(a)(1). (See UMF 69.) California Penal Code Section 148(a)(1)
26 states that: “Every person who willfully resists, delays, or
27 obstructs any public officer, peace officer. . . in the discharge
28 or attempt to discharge any duty of his or her office or
1 employment, when no other punishment is prescribed, shall be
2 punished by a fine not exceeding one thousand dollars ($1,000),
3 or by imprisonment in a county jail not to exceed one year, or by
4 both that fine and imprisonment.” See Cal. Pen. Code §
5 148(a)(1). Plaintiff posted bail the next morning and was
6 released from jail. (See UMF 70.) The Placer County District
7 Attorney’s Office filed a criminal complaint against plaintiff
8 charging him with violating California Penal Code § 148(a)(1).
9 (See UMF 70.) Plaintiff filed a Motion to Suppress. (See UMF
10 72.) The Court granted the Motion to Suppress and the District
11 Attorney’s office dismissed plaintiff’s criminal case. (See UMF
12 74–75.)
13 II. Discussion
14 Summary judgment is proper “if the movant shows that
15 there is no genuine dispute as to any material fact and the
16 movant is entitled to judgment as a matter of law.” Fed. R. Civ.
17 P. 56(a). A material fact is one that could affect the outcome
18 of the suit, and a genuine issue is one that could permit a
19 reasonable jury to enter a verdict in the non-moving party’s
20 favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
21 The party moving for summary judgment bears the initial
22 burden of establishing the absence of a genuine issue of material
23 fact and can satisfy this burden by presenting evidence that
24 negates an essential element of the non-moving party’s case.
25 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
26 Alternatively, the movant can demonstrate that the non-moving
27 party cannot provide evidence to support an essential element
28 upon which it will bear the burden of proof at trial. Id. If
1 the moving party has properly supported its motion, the burden
2 shifts to the non-moving to set forth specific facts to show that
3 there is a genuine issue for trial. See id. at 324. “Where the
4 record taken as a whole could not lead a rational trier of fact
5 to find for the non-moving party, there is no genuine issue for
6 trial.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475
7 U.S. 574, 587 (1986). Any inferences drawn from the underlying
8 facts must, however, be viewed in the light most favorable to the
9 party opposing the motion. See id.
10
A. Claim Under 42 U.S.C. § 1983 for Violation of Fourth
11 Amendment
12 Plaintiff’s first claim for relief is alleged against
13 Defendant Officers Medina, Watkins, Wilson and Sergeant Fernandez
14 for a violation of his Fourth Amendment rights pursuant to 42
15 U.S.C. § 1983. (See Compl. at ¶¶ 9–28.) (Docket No. 1.)
16 Plaintiff alleges that he was (1) illegally detained, (2)
17 subjected to excessive and unreasonable force, and (3) illegally
18 arrested and charged with violating California Penal Code § 148.
19 (Id.) The court will examine each allegation in turn.
20 1. Unlawful Detention
21 Defendants argue that it was objectively reasonable to
22 detain plaintiff under the totality of the circumstances because
23 they had a reasonable suspicion that plaintiff was driving under
24 the influence of alcohol. (See Defs.’ Mot. for Summ. J. at 9.)
25 Plaintiff disagrees and contends that the officers lacked
26 reasonable suspicion, supported by particularized and objective
27 facts, that the truck was being operated by an impaired driver.
28
1 (See Pl.’s Opp’n. to Mot. for Summ. J. at 15.)
2 The Fourth Amendment prohibits unreasonable searches
3 and seizures, and its protections extend to brief investigatory
4 stops of persons or vehicles that fall short of traditional
5 arrest. See United States v. Arvizu, 534 U.S. 266, 273 (2002).
6 Officers may briefly stop and detain someone if there is a
7 reasonable suspicion to believe that criminal activity may be
8 afoot. Id. (citing Terry v. Ohio, 39 U.S. 1, 9 (1968).) To
9 determine whether officers had reasonable suspicion, courts must
10 look at the totality of the circumstances of each case to see
11 whether the detaining officer had a particularized and objective
12 basis for suspecting legal wrongdoing. See Arvizu, 534 U.S. at
13 273.
14 Although an officer’s reliance on a mere hunch is
15 insufficient to justify a stop, the likelihood of criminal
16 activity need not rise to the level required for probable cause,
17 and it falls considerably short of satisfying a preponderance of
18 the evidence standard. Id. at 274 (internal citations omitted).
19 The facts which establish reasonable suspicion need not be
20 inconsistent with innocence. See United States v. Tiong, 224
21 F.3d 1136 (9th Cir. 2000).
22 Defendants contend that they had reasonable suspicion
23 to detain plaintiff for driving under the influence in violation
24 of California Vehicle Code § 23152, which provides that: “(a) It
25 is unlawful for a person who is under the influence of any
26 alcoholic beverage to drive a vehicle; and (b) It is unlawful for
27 a person who has 0.08 percent or more, by weight, of alcohol in
28 his or her blood to drive a vehicle.” See Cal. Vehicle Code §
1 23152 (a–b). However, when the officers arrived at plaintiff’s
2 residence, the vehicle was unoccupied and no one was in the area.
3 (See UMF 21.) The only information they had was that a white
4 Chevy Silverado was parked the wrong way and that two males got
5 out of the vehicle and looked as though they had been drinking.
6 (See UMF 14.) The defendants were not told that the reporting
7 party observed the truck being operated or when the truck was
8 operated. (See Pl.’s Opp’n. to Mot. for Summ. J. at 15.)
9 Officer Watkins admitted that there could be any number of
10 explanations as to why the truck was parked the wrong direction
11 and the position of the truck did not necessarily indicate that
12 the driver was drunk or was intending to leave soon. (See Pl.’s
13 Opp’n. to Mot. for Summ. J. at Ex. 10, Dep. Tr. of Curtis Watkins
14 at 24:17–23.)
15 Plaintiff did inform the defendants that he had
16 consumed three beers earlier in the evening. (See UMF 30.)
17 However, defendants had no way of knowing how long it had been
18 since plaintiff had consumed the beers or whether plaintiff had
19 consumed alcohol since returning to his house. Even assuming
20 that the defendants could actually smell the aroma of alcohol on
21 the plaintiff during that brief encounter outside from 5-10 feet
22 away, the smell of alcohol is merely an indication that the
23 person consumed alcohol but does not indicate how much alcohol
24 was consumed or when. (See Pl.’s Opp’n. to Mot. for Summ. J. at
25 16.) Considering the evidence in the light most favorable to
26 plaintiff, the court concludes that there is a genuine issue of
27 material fact as to whether the officers had reasonable suspicion
28 to detain the plaintiff for a suspected DUI.
1 2. Unreasonable Use of Force
2 The Fourth Amendment permits law enforcement officers
3 to use only such force to effect an arrest as is “objectively
4 reasonable” under the circumstances. See Headwaters Forest
5 Defense v. Cty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir.
6 2002)(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). The
7 essence of the Graham objective reasonableness analysis is that
8 the force which was applied must be balanced against the need for
9 that force. See id. (internal citations omitted.)
10 In assessing the reasonableness of the use of force,
11 the court should give “careful attention to the facts and
12 circumstances of each particular case, including the severity of
13 the crime at issue, whether the suspect poses an immediate threat
14 to the safety of the officers or others, and whether he is
15 actively resisting arrest or attempting to evade arrest by
16 flight.” Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010)
17 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). The
18 “reasonableness” of a particular use of force must be judged from
19 the perspective of a reasonable officer on the scene, rather than
20 with the 20/20 vision of hindsight. See Graham, 490 U.S. at 396.
21 Viewing the evidence in the light most favorable to the
22 plaintiff, the court concludes that there is a genuine issue of
23 material fact as to whether the amount of force used was
24 reasonable under the circumstances. The force which was applied
25 must be balanced against the need for that force. See Headwaters
26 Forest Defense, 276 F.3d at 1130. By the time they decided to
27 use force to detain plaintiff defendants did not have reasonable
28 grounds to arrest him for DUI. Accordingly, the potential crime
1 at issue at that time was only a minor municipal parking
2 violation. With regard to the amount of force used, Officer
3 Medina testified that he was trained to expect normal reactions
4 to being pushed and pulled, (see Pl.’s Opp’n. to Mot. for Summ.
5 J. at Ex. 9, Dep. Tr. of Daniel Medina at 84:23–85:21), and
6 affirmed that the officers were pulling plaintiff backwards down
7 the driveway. (Id.)
8 Defendants contend that given the plaintiff’s size,
9 standing 5’11” tall and weighing 250 pounds, it was objectively
10 reasonable for the officers to move plaintiff off of his feet via
11 a leg sweep maneuver and onto the ground where he could be
12 handcuffed and detained without a further altercation. (See
13 Defs.’ Mot. for Summ. J. at 13.) However, there is no indication
14 that the plaintiff posed an immediate threat to the safety of the
15 officers apart from his size and the fact that he tensed his
16 arms, as he could be expected to do, while being pulled backwards
17 down his driveway.
18 3. Unlawful Arrest
19 Defendants contend that they had probable cause to
20 arrest plaintiff for violating California Penal Code § 148. (See
21 Defs.’ Mot. for Summ. J. at 15.) “Probable cause exists if the
22 arresting officers had knowledge and reasonably trustworthy
23 information of facts and circumstances sufficient to lead a
24 prudent person to believe that [the arrestee] had committed or
25 was committing a crime.” See Gravelet-Blondin v. Shelton, 728
26 F.3d 1086, 1097–98 (9th Cir. 2013). “Because probable cause
27 deals with probabilities and depends on the totality of the
28 circumstances, it is a fluid concept that is not readily, or even
1 usefully, reduced to a neat set of legal rules. It requires only
2 a probability or a substantial chance of criminal activity, not
3 an actual showing of such activity.” See District of Columbia v.
4 Wesby, 138 S. Ct. 577, 586 (2018) (internal quotations and
5 citations omitted).
6 California Penal Code § 148(a)(1) provides that “every
7 person who willfully resists, delays, or obstructs any public
8 officer. . . in the discharge or attempt to discharge any duty of
9 his or her office of employment. . . shall be punished . . .”
10 Plaintiff took approximately two steps after he heard defendants
11 tell him to stop. (See UMF 36.) However, California Penal Code
12 § 148 does not criminalize a person’s failure to respond with
13 alacrity to police orders. See People v. Quiroga, 16 Cal. App.
14 4th 961 (1st Dist. June 22, 1993) (holding that plaintiff’s
15 refusal to stand up despite numerous commands by a police officer
16 did not violate California Penal Code § 148).
17 In Lassiter v. City of Bremerton, 556 F.3d 1049, 1053,
18 (9th Cir. 2009), the Ninth Circuit held that there was probable
19 cause to arrest the plaintiff for obstruction after the plaintiff
20 grabbed a police officer’s arm, because his conduct had the
21 practical effect of precluding the officers from securing the
22 scene and investigating a possible assault. See id. at 1053. In
23 contrast, the plaintiff here merely flexed his arms and “tensed
24 up” when Officer Medina and Officer Wilson grabbed him and began
25 pulling him backwards on the driveway. (See UMF 38.) Officer
26 Medina also admitted that plaintiff might have been confused
27 about what was going on because of the parking ticket situation,
28 lack of discussions about a DUI investigation, and failure to
1 tell plaintiff that he was legally detained and not free to leave
2 until seconds before the officers grabbed him. (See Pl.’s Opp’n.
3 to Mot. for Summ. J. at Ex. 9, Dep. Tr. of Daniel Medina at 64:1–
4 65:2.)
5 After reviewing all the evidence in the record, the
6 court concludes that there is a genuine issue of material fact as
7 to whether the defendant officers had probable cause to arrest
8 plaintiff for violation of California Penal Code § 148.
9 B. Qualified Immunity
10 Having found disputed issues of fact on the question of
11 whether defendants violated plaintiff’s Fourth Amendment rights,
12 the court must now determine whether defendants nonetheless are
13 entitled to qualified immunity for those violations. The
14 qualified immunity defense is available to defendants if
15 plaintiff’s Fourth Amendment rights at issue in this case were
16 not clearly established at the time that defendants committed the
17 violation. See Shafer v. Cty. of Santa Barbara, 868 F.3d 1110,
18 1117 (9th Cir. 2017).
19 The doctrine of qualified immunity “protects government
20 officials ‘from liability for civil damages insofar as their
21 conduct does not violate clearly established statutory or
22 constitutional rights of which a reasonable person would have
23 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(citing
24 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).) To determine
25 whether an officer is entitled to qualified immunity, the court
26 considers: (1) whether there has been a violation of a
27 constitutional right; and (2) whether the defendants’ conduct
28 violated “clearly established” federal law. Sharp v. Cty. of
1 Orange, 871 F.3d 901, 909 (9th Cir. 2016) (citing Kirkpatrick v.
2 Cty. Of Washoe, 843 F.3d 784, 788 (9th Cir. 2016)).
3 Qualified immunity is a question of law to be decided
4 by the court. See Hunter v. Bryant, 502 U.S. 224, 228 (2009).
5 Qualified immunity attaches when an official’s conduct does not
6 violate clearly established statutory or constitutional rights of
7 which a reasonable person would have known. See Kisela v.
8 Hughes, 138 S. Ct. 1148, 1152 (2018) (internal citations
9 omitted). “To be clearly established, a legal principle must
10 have a sufficiently clear foundation in then-existing precedent.”
11 See Wesby, 138 S. Ct. at 589. The rule must be settled law,
12 which means it is dictated by “controlling authority” or a
13 “robust consensus of cases of persuasive authority.“ Id. at 589–
14 90 (internal citations omitted). It is not enough that the rule
15 is suggested by then-existing precedent; the precedent must be
16 clear enough that every reasonable official would interpret it to
17 establish the particular rule the plaintiff seeks to apply. See
18 id. at 590. In other words, qualified immunity protects all but
19 the plainly incompetent or those who knowingly violate the law.
20 See Kisela, 138 S. Ct. at 1152. It is the plaintiff who “bears
21 the burden of showing that the rights allegedly violated were
22 ‘clearly established.’” See Shafer, 868 F.3d at 1118 (internal
23 citations omitted).
24 1. Sergeant Fernandez
25 Sergeant Fernandez was not present or involved in the
26 alleged constitutional violations of unlawful detention and
27 excessive use of force. (See Defs.’ Mot. for Summ. J. at 16.)
28 In regard to the allegedly unlawful arrest, Sergeant Fernandez
1 was told by the other officers that plaintiff “refused to obey
2 lawful orders and struggled when officers attempted to detain
3 him.” (See Pl.’s Opp’n. to Mot. for Summ. J., Ex. 2 at 12.)
4 Plaintiff told Sergeant Fernandez that he continued to walk away
5 from the officers after he heard them say “come here” and “you
6 can’t just leave.” (See UMF 55, 57–60.) He also informed
7 Sergeant Fernandez that he “tensed up” when the officers grabbed
8 him. (See UMF 63.) Plaintiff contends that Sergeant Fernandez
9 should have investigated whether his subordinates were telling
10 him the truth when he arrived on scene and that he should have
11 intervened to prevent plaintiff’s arrest. (See Pl.’s Opp’n to
12 Mot. for Summ. J. at 32–34.)
13 However, as plaintiff’s counsel appeared to concede at
14 oral argument, there is no clearly established law which would
15 place a police sergeant on notice that he has a constitutional
16 obligation to ascertain whether his subordinates are telling him
17 the truth on the scene before making an arrest. Accordingly, the
18 court concludes that Sergeant Fernandez is entitled to qualified
19 immunity and will grant his summary judgment on the claims
20 against him.
21 2. Unlawful Detention
22 Plaintiff contends that defendants violated clearly
23 established law by detaining him to investigate a potential DUI.
24 (See Pl.’s Opp’n. to Mot. for Summ. J. at 15.) The strongest
25 case plaintiff cites in support of his contention is United
26 States v. Grigg, 498 F.3d 1070, 1079–81 (9th Cir. 2007).4 The
27 4 Plaintiff cites various other cases, but none are on
point here. United States v. Valdes-Vega, 738 F.3d 1074, 1078
28 (9th Cir. 2013), and Rodriguez v. United States, 575 U.S. 348,
1 Ninth Circuit has long held that the Fourth Amendment constrains
2 officers who conduct stops to investigate completed misdemeanors.
3 See United States v. Grigg, 498 F.3d 1070, 1079–81 (9th Cir.
4 2007). In United States v. Grigg, police officers pulled over
5 the suspect’s vehicle to investigate a citizen complaint that the
6 suspect had been playing his car stereo at an excessive volume
7 earlier in the day. Id. at 1072. The Grigg court concluded that
8 this was insufficient to justify the officer’s detention of the
9 suspect. Id. at 1081.
10 Defendants contend that Grigg did not put the officers
11 here on notice that their detention of Plaintiff to investigate a
12 DUI was unlawful. (See Defs.’ Reply in Supp. of Mot. for Summ.
13 J. at 25.) (Docket No. 19.) The court agrees. First, it was not
14 necessarily clear that this DUI was a misdemeanor. Under certain
15 conditions a fourth DUI may be charged as a felony. See Cal.
16 Veh. Code § 23550. Because defendants had not identified
17 plaintiff before they encountered him, they had no way of knowing
18 whether he had prior DUI convictions.
19 Second, even assuming the officers would have known
20 350–51 (2015), focus on investigatory stops of vehicles. Johnson
v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1175 (9th Cir.
21 2019), involved a shooting by a police officer on a BART train
and where the court held that there was no likelihood of ongoing
22 or repeated danger or escalation when the officer was
investigating a completed fight on a BART train and came upon a
23 group of black men merely talking amongst each other. See id. at
1175–76. In United States v. Hensley, 469 U.S. 221, 233 (1985),
24 the Supreme Court held that police officers had reasonable
suspicion to perform an investigatory stop of defendant based on
25 a “wanted flyer” by another police department and were entitled
to seize evidence discovered in plain view in course of their
26 lawful stop of defendant’s vehicle. Nothing in those cases would
have placed defendants here on notice that they were not entitled
27 to detain plaintiff to investigate a DUI under the circumstances
of this case.
28
1 they were investigating a misdemeanor DUI, Grigg instructs that
2 in determining whether the Fourth Amendment permits an officer to
3 detain a suspected misdemeanant, the court must “consider the
4 nature of the misdemeanor offense in question, with particular
5 attention to the potential for ongoing or repeated danger (e.g.
6 drunken and/or reckless driving), and any risk of escalation
7 (e.g., disorderly conduct, assault, domestic violence).” See
8 Grigg, 498 F.3d at 1079-81. Because Grigg specifically states
9 that the officers should pay attention to the potential for
10 ongoing or repeated danger, and highlights reckless and drunken
11 driving as activities that would lead to ongoing danger, Grigg
12 did not put the defendants on notice that their detention of
13 plaintiff to investigate a DUI was unlawful.
14 Because plaintiff fails to identify sufficiently
15 specific constitutional precedents to alert defendants that their
16 particular conduct was unlawful, defendants are entitled to
17 qualified immunity for the alleged unlawful detention of
18 plaintiff. Accordingly, the court will grant defendants summary
19 judgment on this claim.
20 3. Unreasonable Use of Force
21 The court next examines whether it was clearly
22 established that the use of force exerted by the officers in this
23 case was unreasonable. Plaintiff contends that he was subjected
24 to excessive and unreasonable force by Officers Medina, Wilson,
25 and Watkins. (See Pl.’s Opp’n. to Mot. for Summ. J. at 26.)
26 Defendants argue that they did not violate clearly established
27 law when Officer Medina and Officer Wilson grasped plaintiff to
28 stop him from leaving the scene and used a leg sweep to take
1 plaintiff to the ground after plaintiff resisted. (See Defs.’
2 Reply in Supp. of Mot. for Summ. J. at 26.)
3 As a preliminary matter, plaintiff contends that he was
4 “gang tackled” at various points in his opposition, (see Pl.’s
5 Opp’n to Mot. for Summ. J. at 26), and at oral argument.
6 However, there is simply no evidence that plaintiff was “gang
7 tackled” or even tackled at all. The only evidence that
8 plaintiff cites to justify his statement that he was “gang
9 tackled” is that Officers Medina, Wilson, and Watkins ended up
10 going to the ground too. (See Pl.’s Resp. to Statement of
11 Undisputed Facts, Fact 40.) However, plaintiff’s own description
12 of the event in the statement of undisputed facts belies his
13 contention that he was gang tackled; he states that Officer
14 Wilson grabbed plaintiff’s right arm and pulled him further down
15 the driveway to do a leg sweep to kick plaintiff’s legs out from
16 under him, causing plaintiff to fall onto his back on the
17 concrete driveway. (See Pl.’s Resp. to Statement of Undisputed
18 Facts, Fact 37.) Nowhere in plaintiff’s description of the
19 events does a “gang tackle” occur. (See id.)
20 The reason attempts to categorize the force used as a
21 “gang tackle” because in Blankenhorn v. City of Orange, 485 F.3d
22 463, 481 (9th Cir. 2007), the Ninth Circuit held that a “gang
23 tackle” was an unreasonable use of force under the circumstances
24 of that case. See id. However, as the Ninth Circuit made clear
25 in Blankenhorn, “neither tackling nor punching a suspect to make
26 an arrest necessarily constitutes excessive force.” See id. at
27 477. Rather, the Ninth Circuit held that “the clear principle
28 that force is only justified where there is a need for force
1 would have placed a prudent officer on notice that gang-tackling
2 without first attempting a less violent means of arresting a
3 relatively calm trespass subject -– especially one who had been
4 cooperative in the past and was at the moment not actively
5 resisting arrest -- was a violation of that person’s Fourth
6 Amendment rights.” See Blankenhorn, 485 F.3d at 481.
7 The Supreme Court has cautioned that “use of excessive
8 force is an area of the law in which the result depends very much
9 on the facts of each case, and police officers are entitled to
10 qualified immunity unless existing precedent ‘squarely governs’
11 the specific facts at issue.” See Kisela, 138 S. Ct. at 1153.
12 The facts of Blankenhorn, which dealt with a trespass subject who
13 had previously cooperated with police and was not actively
14 resisting arrest, are readily distinguishable from the facts here
15 and could not have placed defendants on notice that their conduct
16 was illegal.
17 The other cases cited by plaintiff similarly do not
18 support a finding that the officers violated clearly established
19 law when they grasped his arms to stop him from leaving and used
20 a leg sweep to take him to the ground after he tensed up his
21 arms.5 Plaintiff attempts to rely on Tekle v. United States, 511
22 5 The majority of the cases cited by plaintiff are
applications of state law. See Cal. Pen. Code § 242; See
23 Judicial Council of California: Civil Jury Instructions (“CACI”),
Rule 1305, Battery by Peace Officer (2020); Edson v. City of
24 Anaheim, 63 Cal. App. 4th 1269, 1272 (4th Dist. 1998); Evans v.
City of Bakersfield, 22 Cal. App. 4th 321, 331 (5th Dist. 1994).
25 However, the standard requires that the defendant violated
clearly established federal law, not California state law. See
26 Sharp, 871 F.3d at 909. Plaintiff also cites Andrews v. City of
Henderson, Case No. 2:18-CV-1625 JCM (BNW), 2020 WL 5750434 at *1
27 (D. Nev. Sept. 25, 2020). City of Henderson was decided after
the subject incident and thus could not have placed defendants on
28 notice that their conduct was illegal.
1 F.3d 839, 844–45 (9th Cir. 2007). In Tekle, approximately
2 twenty-three armed officers saw a barefoot, eleven year old,
3 unarmed boy eleven year old boy exit the house where he lived
4 with his father, the suspect. (See id. at 846.) He did not
5 attempt to flee or resist officers, but complied with their
6 requests and laid face down on the driveway. (See id.) The
7 police then held a gun to his head, searched him, pulled him up
8 from behind by the chain of the handcuffs, and pointed their guns
9 on him for fifteen to twenty minutes. (See id.) Because the
10 facts of Tekle are completely distinguishable from the facts at
11 issue here and involved a totally different type of force, Tekle
12 could not have placed defendants on notice that their conduct in
13 this case was unlawful.
14 Plaintiff next cites Young v. County of Los Angeles,
15 655 F.3d 1156, 1166 (9th Cir. 2011). In Young, the police
16 initiated a traffic stop for a seat belt violation. See id. at
17 1158. While the plaintiff sat on the sidewalk eating a snack and
18 waiting for a ticket to be written, the police officer proceeded
19 to pepper spray him and strike him multiple times with his baton.
20 See id. at 1160. Again, because the facts of Young are wholly
21 distinguishable from the facts at issue here and involved a
22 totally different type of force, Young could not have placed
23 defendants on notice that their conduct here was unlawful.
24 Because plaintiff fails to identify sufficiently
25 specific constitutional precedents to alert the defendants that
26 their particular conduct was unlawful, defendants are entitled to
27
28
1 qualified immunity for the alleged unreasonable use of force.
2 Accordingly, the court will grant defendants summary judgment on
3 this claim.
4 4. Unlawful Arrest
5 The cases cited by plaintiff do not support his
6 contention that the defendants violated clearly established law
7 when they arrested plaintiff for violating California Penal Code
8 §148. 6 The only federal case cited by plaintiff in support of
9 his proposition is Velasquez v. City of Long Beach, 793 F.3d
10 1010, 1018–19 (9th Cir. 2015). In Velasquez, Long Beach police
11 officers were responding to a noise complaint when an officer
12 decided to detain the plaintiff for refusing to comply with
13 orders, and brought the plaintiff to the ground when he felt him
14 “sort of pull away.” See id. at 1015. When the plaintiff in
15 Velasquez allegedly refused to comply with defendant’s orders to
16 roll on his stomach, the officer struck him eleven times with his
17 baton. See id. Plaintiff was then arrested for violation of
18 California Penal Code § 148(a)(1). See id. The district court
19 granted judgment as a matter of law on the unlawful arrest issue
20 under Federal Rule of Civil Procedure 50(a) to the City of Long
21 Beach. See id. at 1017. The Velasquez decision did not
22 establish that plaintiff was unlawfully arrested for violation of
23
6 The majority of the cases cited by plaintiff are again
24 state court cases interpreting state law. See People v. Quiroga,
16 Cal. App. 4th 961 (1st Dist. 1993); In re Muhammed, 95
25 Cal.App.4th 1325, 1329 (6th Dist. 2002); People v. Francis A. 40
Cal.App.5th 399, 408 (1st Dist. 2019; People v. Allen, 109
26 Cal.App.3d 981, 987 (5th Dist. 1980). However, as noted above,
the standard requires that the defendant violated clearly
27 established federal law, not California state law. See Sharp,
871 F.3d at 909.
28
1 California Penal Code § 148; rather, the court held that the
2 district court erred in granting judgment as a matter of law and
3 remanded the case for a new trial. See id. at 1030. As such,
4 Velasquez could not have placed defendants on notice that their
5 conduct was illegal.
6 Because plaintiff fails to identify sufficiently
7 specific constitutional precedents to alert defendants that their
8 particular conduct in arresting plaintiff for violating
9 California Penal Code § 148 was unlawful, the defendants are
10 entitled to summary judgment on the allegedly unlawful arrest of
11 plaintiff. Accordingly, the court will grant defendants summary
12 judgment on this claim.
13 C. Claim Under 42 U.S.C. § 1983 for Malicious Prosecution
14 Plaintiff’s second claim for relief alleges federal
15 malicious prosecution under 42 U.S.C. § 1983. (See Compl. ¶¶ 29–
16 31.) Under Ninth Circuit precedent, in order to prevail on a §
17 1983 claim of malicious prosecution, a plaintiff “must show that
18 defendants prosecuted [him] with malice and without probable
19 cause, and that they did so for the purpose of denying [him]
20 equal protection or another specific constitutional right.”7
21 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995).
22 Malicious prosecution actions are not limited to suits against
23 prosecutors but may be brought, as here, against other persons
24 who have wrongfully caused the charges to be filed. See
25 Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126–27 (9th
26
7 Although plaintiff alleges that defendants prosecuted
27 him for the purpose of denying a specific constitutional right,
plaintiff has not identified which specific constitutional right
28 defendants prosecuted him to deny.
1 Cir. 2002).
2 “[T]he decision to file a criminal complaint is
3 presumed to result from an independent determination on the part
4 of the prosecutor, and thus, precludes liability for those who
5 participated in the investigation or filed a report that resulted
6 in the initiation of proceedings.” Awabdy v. City of Adelanto,
7 368 F.3d 1062, 1067 (9th Cir. 2004). However, the presumption of
8 prosecutorial independence does not bar a subsequent § 1983 claim
9 against state or local officials who improperly exerted pressure
10 on the prosecutor, knowingly provided misinformation to him,
11 concealed exculpatory evidence, or otherwise engaged in wrongful
12 or bad faith conduct that was actively instrumental in causing
13 the initiation of the proceedings. Id.
14 If a plaintiff has evidence, for example, that the
15 district attorney was subjected to unreasonable pressure by the
16 police officers, that the officers knowingly withheld relevant
17 information with the intent to harm plaintiff, or that the
18 officers knowingly supplied false information, the plaintiff has
19 the burden to produce it. See Smiddy v. Varney, 803 F.2d 1469,
20 1471–72 (9th Cir. 1986). In addition, “an individual seeking to
21 bring a malicious prosecution claim must generally establish that
22 the prior proceedings terminated in such a manner as to indicate
23 his innocence.8 See Awabdy, 368 F.3d at 1068. In the absence of
24 evidence to rebut the presumption, the presumption is sufficient
25 to require summary judgment for the defendant. (Id.)
26 Plaintiff contends that the defendants induced the
27 8 It is undisputed that the District Attorney dismissed
Plaintiff’s criminal case after plaintiff prevailed on his Motion
28 to Suppress. (See UMF 74–75.)
1 criminal prosecution by corruption, fabricated evidence, and
2 suppression of exculpatory evidence. (See Pl.’s Opp’n to Mot.
3 for Summ. J. at 38.) Plaintiff cites two examples of this
4 alleged fabrication to rebut the presumption of independent
5 prosecutorial judgment. (See Pl.’s Opp’n to Mot. for Summ. J. at
6 38-42.) First, plaintiff points to Officer Medina and Officer
7 Wilson’s vacillations as to where plaintiff was standing in their
8 reports, the motion to suppress hearing, and their depositions.
9 (Id. at 39.) Plaintiff additionally contends that Officers
10 Wilson and Medina lied when they said they could smell alcohol
11 emanating from plaintiff because plaintiff had only consumed
12 three beers earlier in the evening, had eaten 6 tacos, and was
13 outside at least 10 feet away from the officers. (Id. at 39–41.)
14 Plaintiff also points to the fact that Officer Watkins did not
15 state that he smelled alcohol on plaintiff and Sergeant Fernandez
16 did not state that plaintiff was slurring his words. (Id. at
17 41.)
18 The Ninth Circuit has established what types of
19 evidence are required to overcome the presumption that a
20 prosecutor exercises independent judgment in deciding to file
21 charges. See Newman v. County of Orange, 457 F.3d 991, 994 (9th
22 Cir. 2006). In Barlow v. Ground, 992 F.2d 1132, 1137 (9th Cir.
23 1992), the Ninth Circuit held that a civil rights plaintiff had
24 produced sufficient evidence to overcome the Smiddy presumption
25 because the prosecutor relied solely on the arresting officer’s
26 report which omitted critical information and an independent
27 witness corroborated at least part of the plaintiff’s version of
28 events. Id. at 1137. However, the Ninth Circuit has made clear
1 that a plaintiff’s account of the incident in question, by
2 itself, does not overcome the presumption of independent
3 judgment. See Newman, 457 F.3d at 994.
4 The court is not convinced that the discrepancies
5 between the officer’s reports cited by the plaintiff are
6 material. The fact that officers may have forgotten exactly
7 where they were standing on the driveway when questioned at their
8 depositions, over a year after the subject incident, is not
9 “ample evidence from which a reasonable jury could conclude that
10 the arresting officers, through false statements and material
11 omissions in their reports, prevented the prosecutor from
12 exercising independent judgment.” See Newman, 457 F.3d at 996
13 (citing Barlow, 943 F.2d at 1137). Nor does the fact that
14 certain officers did not smell alcohol or hear the plaintiff
15 slightly slurring words, establish that the other officers were
16 lying or that there were material omissions in the report.
17 After reviewing all the evidence in the record, the
18 court concludes that plaintiff has not provided evidence
19 sufficient to rebut the presumption of independent judgment and
20 survive summary judgment on his malicious prosecution claim.
21 Plaintiff has merely established that his account of the incident
22 in question conflicts with the account of the officers involved,
23 which does not suffice. See Newman, 457 F.3d at 994.
24 Accordingly, the court will grant summary judgment on this claim
25 to defendants.
26 D. State Law Claim Under Tom Bane Civil Rights Act
27 Plaintiff’s sole remaining claim for relief is based on
28 the Tom Bane Civil Rights Act, California Civil Code § 52.1(c).
1 (See Compl. ¶¶ 32–24.) Because the court will grant summary
2 judgment on plaintiff’s only federal claims, the court no longer
3 has federal question jurisdiction.9
4 Federal courts have “supplemental jurisdiction over all
5 other claims that are so related to claims in the action within
6 such original jurisdiction that they form part of the same case
7 or controversy under Article III of the United States
8 Constitution.” 28 U.S.C. § 1367(a). But a district court “may
9 decline to exercise supplemental jurisdiction . . . [if] the
10 district court has dismissed all claims over which it has
11 original jurisdiction.” 28 U.S.C. § 1367(c); see also Acri v.
12 Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en
13 banc) (explaining that a district court may decide sua sponte to
14 decline to exercise supplemental jurisdiction).
15 The Supreme Court has stated that “in the usual case in
16 which all federal-law claims are eliminated before trial, the
17 balance of factors to be considered under the pendent
18 jurisdiction doctrine--judicial economy, convenience, fairness,
19 and comity--will point toward declining to exercise jurisdiction
20 over the remaining state-law claims.” Carnegie–Mellon Univ. v.
21 Cohill, 484 U.S. 343, 350 n.7 (1988).
22 Here, comity weighs in favor of declining to exercise
23 supplemental jurisdiction over plaintiff’s state law claim under
24 the Tom Bane Act. The state courts are fully competent to
25 adjudicate such a claim. Indeed, that Act raises complex
26 questions of state law as to what is required to establish a
27
9 There is no suggestion that there is diversity
28 jurisdiction in this case, and the court finds none.
1 “specific intent to violate the arrestee’s right to freedom from
2 unreasonable seizure.” Reese v. Cty. of Sacramento, 888 F.3d
3 1030, 1043 (9th Cir. 2018) (citing Cornell v. City & Cty. of San
4 Francisco, 17 Cal. App. 5th 766, 799, (2017)).10 Such questions
5 are better left to the California courts to resolve.
6 As for judicial economy, plaintiff’s Tom Bane Act claim
7 has not been the subject of any significant litigation in this
8 case apart from being discussed briefly in the context of this
9 motion. Judicial economy does not weigh in favor of exercising
10 supplemental jurisdiction. And lastly, convenience and fairness
11 do not weigh in favor of exercising supplemental jurisdiction
12 over plaintiff’s remaining state law claim. The federal and
13 state fora are equally convenient for the parties. There is no
14 reason to doubt that the state court will provide an equally fair
15 adjudication of the issues. There is nothing to prevent
16 plaintiff from refiling his claims against the remaining
17 defendants in the state court,11 and any additional cost or delay
18 resulting therefrom should be minimal. Accordingly, the court
19 10 “The Bane Act’s requirement that interference with
rights must be accomplished by threats, intimidation, or coercion
20 has been the source of much debate and confusion.” Cornell, 17
Cal. App. 5th at 801. In Chaudhry, the Ninth Circuit found the
21 Bane Act “does not require proof of discriminatory intent” and
“that a successful claim for excessive force under the Fourth
22 Amendment provides the basis for a successful claim under §
52.1.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th
23 Cir. 2014). But in Cornell, the California Court of Appeal
clarified the Bane Act’s requirements, finding specific intent
24 was required to make out a claim.
25 11 “[T]he period of limitations for any claim asserted
under [28 U.S.C. 1367(a)], and for any other claim in the same
26 action that is voluntarily dismissed at the same time as or after
the dismissal of the claim under subsection (a), shall be tolled
27 while the claim is pending and for a period of 30 days after it
is dismissed unless State law provides for a longer tolling
28 period.” 28 U.S.C. § 1367(d).
ene nnn nnn nn nnn nn nn nnn nO SE OED OE
1 declines to exercise supplemental jurisdiction and will dismiss
2 | plaintiff’s remaining state law claim without prejudice to
3 | vefiling in state court.
4 IT IS THEREFORE ORDERED that the Defendants’ Motion for
5 Summary Judgment (Docket No. 11) be, and the same hereby is,
6 | GRANTED on all of plaintiff’s federal claims.
7 IT IS FURTHER ORDERED that plaintiff’s remaining claim
8 against defendants under California law is DISMISSED WITHOUT
9 PREJUDICE to refiling in state court.
10 The Clerk of Court is instructed to enter judgment
11 accordingly.
12 | Dated: February 10, 2021 tleom ah. A. be—~
13 WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
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