The opinion
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7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
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10 MARCO ORTIZ, No. 2:20-cv-00217-JAM-CKD
11 Plaintiff,
12 v. ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND
13 COUNTY OF SAN JOAQUIN, a GRANTING IN PART AND DENYING IN
municipal corporation, et PART DEFENDANTS’ MOTION FOR
14 al., SUMMARY JUDGMENT
15 Defendants.
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18 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
19 Marco Ortiz (“Plaintiff”) brings this Section 1983 excessive
20 force action against San Joaquin County and San Joaquin Deputy
21 Sheriffs Flores, Mendez, Rodriguez, and Downey (“Defendants”)
22 following injuries he suffered while in Defendants’ custody. See
23 Compl., ECF No. 1. Specifically, on July 16, 2019, Defendants
24 booked Plaintiff at the San Joaquin County Jail after he was
25 arrested for a dispute with his brother at their house. Id.
26 ¶ 16. While Defendants were attempting to take Plaintiff’s photo
27 as part of the booking process, Defendant Mendez used a pain
28 compliance technique on Plaintiff’s neck, causing him pain and
1 difficulty breathing. Id. ¶¶ 17-18. Next, Defendants escorted
2 Plaintiff to a safety cell where they conducted a “takedown”
3 after Plaintiff refused to kneel down for his handcuffs to be
4 removed safely. Id. ¶ 19. The takedown included a leg sweep by
5 Downey which broke Plaintiff’s leg. Id. As a result, Plaintiff
6 has undergone three surgeries to repair his broken leg, Plaintiff
7 still cannot walk, and Plaintiff’s leg may need to be amputated.
8 Id. ¶ 20.
9 On January 29, 2020, Plaintiff initiated the present action,
10 asserting the following claims: (1) excessive force in violation
11 of the Fourth Amendment pursuant to 42 U.S.C. Section 1983
12 against Downey, Flores, Mendez, and Rodriguez; (2) excessive
13 force in violation of the Fourteenth Amendment Due Process Clause
14 pursuant to 42 U.S.C. Section 1983 against Downey, Flores,
15 Mendez, and Rodriguez; (3) Monell claims against the County;
16 (4) violation of the Bane Act against all Defendants;
17 (6)1 battery against all Defendants; and (7) negligence against
18 all Defendants. See generally Compl.
19 The parties filed cross-motions for summary judgment. See
20 Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 21; Defs.’ Mot. Summ.
21 J. (“Defs.’ Mot.”), ECF No. 23.2 Plaintiff filed a reply brief
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23 1 The Court follows the numbering of the complaint itself which
does not include a fifth cause of action, instead skipping from
24 the fourth cause of action to the sixth cause of action. See
Compl. at 10-12.
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2 Although Defendants failed to identify their motion as an
opposition and a cross-motion for summary judgment, Plaintiff
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failed to demonstrate prejudice would result from construing
27 Defendants’ motion as such. Pl.’s Reply at 2-4. Accordingly,
the Court grants Defendants’ request to treat their filing as a
28 cross-motion for summary judgment. Defs.’ Reply at 2.
1 in opposition to Defendants’ motion and in support of his own
2 motion. See Pl.’s Reply, ECF No. 27. Defendants also replied.
3 See Defs.’ Reply, ECF No. 28.
4 Plaintiff seeks summary judgment on his Section 1983
5 excessive force, Monell, and negligence claims against Mendez,
6 Downey, and the County. Pl.’s Reply at 2. Defendants move for
7 summary judgment on all claims. Defs.’ Mot. at 8. For the
8 reasons set forth below, the Court DENIES Plaintiff’s motion for
9 partial summary judgment and GRANTS in part and DENIES in part
10 Defendants’ motion for summary judgment.3
11 II. OPINION
12 A. Evidentiary Objections
13 Defendants filed a Separate Statement of Undisputed Facts,
14 see Defs.’ SUF, ECF No. 23-2, to which Plaintiff responded, see
15 Pl.’s Resp. to Defs.’ SUF., ECF No. 27-6. Plaintiff likewise
16 filed a Separate Statement of Undisputed Facts, see Pl.’s SUF,
17 ECF No. 21-13, to which Defendants responded and raised
18 evidentiary objections, see Defs.’ Resp. to Pl.’s SUF., ECF No.
19 25. The Court has reviewed these evidentiary objections but
20 declines to rule on them as courts self-police evidentiary
21 issues on motions for summary judgment and a formal ruling is
22 unnecessary to the determination of these motions. See Sandoval
23 v. Cty. Of San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (citing
24 to Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110,
25 1119) (E.D. Cal. 2006)).
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27 3 These motions were determined to be suitable for decision
without oral argument. E.D. Cal. L.R. 230(g). The hearing was
28 scheduled for December 7, 2021.
1 B. Legal Standard
2 Courts must grant a party’s motion for summary judgment “if
3 the movant shows that there is no genuine dispute as to any
4 material fact and the movant is entitled to a judgment as a
5 matter of law.” Fed. R. Civ. Proc. 56(a). The movant bears the
6 initial burden of “informing the district court of the basis for
7 its motion, and identifying [the documents] which it believes
8 demonstrate the absence of a genuine issue of a material fact.”
9 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is
10 material if it “might affect the outcome of the suit under the
11 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
12 248 (1986). Once the movant makes this initial showing, the
13 burden rests upon the nonmoving party to “set forth specific
14 facts showing that there is a genuine issue for trial.” Id. An
15 issue of fact is genuine if “the evidence is such that a
16 reasonable jury could return a verdict for the nonmoving party.”
17 Id.
18 C. Analysis
19 1. Second Claim: Fourteenth Amendment
20 Defendants move for summary judgment on Plaintiff’s second
21 claim for Fourteenth Amendment Due Process violations against
22 Downey, Flores, Mendez, and Rodriguez. Defs.’ Mot. at 16.
23 Citing to Pierce v. Multnomah Cty., 76 F.3d 1032, 1043 (9th Cir.
24 1996), Defendants contend this claim fails as a matter of law
25 because Plaintiff was a pre-arraignment detainee and thus all
26 claims of excessive force are governed by the Fourth Amendment
27 not the Fourteenth Amendment. Id.
28 Pierce does clearly instruct: “the Fourth Amendment sets the
1 applicable constitutional limitations on the treatment of an
2 arrestee.” 76 F.3d at 1043. Plaintiff does not contend
3 otherwise in his reply. See Pl.’s Reply. Accordingly, the Court
4 grants summary judgment for Defendants on Plaintiff’s second
5 cause of action.
6 2. First Claim: Section 1983 Excessive Force
7 Both Plaintiff and Defendants seek summary judgment on
8 Plaintiff’s first Section 1983 claim for excessive force in
9 violation of the Fourth Amendment. Pl.’s Mot. at 9-12; Defs.’
10 Mot. at 8-16. Plaintiff generally claims that Defendants
11 conducted “an unjustified and unprovoked attack on a handcuffed,
12 nonviolent and disabled subject.” Pl.’s Reply at 14.
13 Defendants paint a different picture, namely that Plaintiff “was
14 uncooperative during the booking process and was sexually vile
15 and obscene with the correctional officers responsible for his
16 booking.” Defs. Mot. at 1. As a response to Plaintiff’s
17 uncooperativeness, Defendants contend Mendez used a pain
18 compliance technique for a short duration on Plaintiff’s neck to
19 try to take his booking photo and that Downey performed a leg
20 sweep takedown to try to remove his handcuffs safely. Id.
21 Under the Fourth Amendment, officers may use force that is
22 objectively reasonable under the circumstances. Graham v.
23 Connor, 490 U.S. 386, 397 (1989). Determining whether the force
24 used is excessive or reasonable “requires careful attention to
25 the facts and circumstances of each particular case.” Id. at
26 396. The Supreme Court has set forth a non-exhaustive list of
27 factors for courts to consider when assessing a pre-trial
28 detainees’ Section 1983 excessive force claim: “the relationship
1 between the need for the use of force and the amount of force
2 used; the extent of the plaintiff's injury; any effort made by
3 the officer to temper or to limit the amount of force; the
4 severity of the security problem at issue; the threat reasonably
5 perceived by the officer; and whether the plaintiff was actively
6 resisting.” Kinglsey v. Hendrickson, 576 U.S. 389, 397 (2015).
7 Here, Plaintiff identifies two uses of force that he argues
8 were excessive as a matter of law: (1) Mendez’s use of a pain
9 compliance technique on his neck and (2) Downey’s use of a leg-
10 sweep takedown technique which kicked out and broke his leg.
11 Pl.’s Mot. at 10. Plaintiff further seeks to hold Flores and
12 Rodriguez liable as integral participants. Pl.’s Reply at 8-9.
13 Defendants counter that Mendez and Downey’s uses of force were
14 not excessive but rather objectively reasonable as a matter of a
15 law, and that no facts support Plaintiff’s contention that
16 Flores and Rodriguez were integral participants. Defs.’ Reply
17 at 2-8.
18 Beginning with Mendez and Downey’s uses of force, the Court
19 finds numerous genuine disputes of material fact exist thereby
20 precluding summary judgment for either party. See Pl.’s Resp.
21 to Defs.’ SUF. ¶¶ 12-22, 24, 32-34, 36, 38, 40-50, 52, 64, 72-
22 74; Defs.’ Resp. to Pl.’s SUF ¶¶ 1-3, 5, 7-8, 11-17, 19-23, 25,
23 27-28, 31-33, 35-36, 38-44. “Summary judgment is almost never
24 appropriate on an excessive force claim” and must be “granted
25 sparingly” “[b]ecause [the excessive force inquiry] nearly
26 always requires a jury to sift through disputed factual
27 contentions, and to draw inferences therefrom.” Nelson, et al.
28 v. City of Hayward, Case No: 3:16-cv-07222-SK, ECF No. 92 at 9
1 (N.D. Cal. March 1, 2019) (citing to Smith v. City of Hemet, 394
2 F.3d 689, 701 (9th Cir. 2005)). Such is the case here. The
3 parties vigorously dispute the facts surrounding both Mendez’s
4 and Downey’s uses of force. These genuine disputes of material
5 facts preclude the Court from granting summary judgment.
6 Nor does Defendants’ emphasis on the lack of injury
7 resulting from Mendez’s use of the pain compliance technique,
8 see Defs.’ Mot. at 11; Defs.’ Reply at 2-3, change this
9 analysis. None of Defendants’ cited cases support the
10 proposition that injury is a required element of a Section 1983
11 excessive force claim. Rather “the extent of the plaintiff’s
12 injury” is just one factor in evaluating the objective
13 reasonableness of an officer’s use of force. Kinglsey, 576 U.S.
14 at 397. That Plaintiff suffered no lasting injury from Mendez’s
15 use of force, does not, in and of itself, require this Court to
16 grant Defendants’ motion for summary judgment on this claim.
17 Next, Defendants argue Mendez and Downey are entitled to
18 qualified immunity. Defs.’ Mot. at 12-13, 16. But the same
19 disputes of material fact preclude summary judgment on the issue
20 of qualified immunity. See Pl.’s Resp. to Defs.’ SUF. ¶¶ 12-22,
21 24, 32-34, 36, 38, 40-50, 52, 64, 72-74; Defs.’ Resp. to Pl.’s
22 SUF ¶¶ 1-3, 5, 7-8, 11-17, 19-23, 25, 27-28, 31-33, 35-36, 38-
23 44. To determine whether Mendez and Downey are entitled to
24 qualified immunity, the Court must evaluate (1) whether the
25 officers’ conduct violated a constitutional right, and
26 (2) whether that right was “clearly established” at the time of
27 the incident. Saucier v. Katz, 533 U.S. 194, 201 (2001). In
28 light of the disputed facts identified above, the Court cannot
1 make a determination as a matter of law on either Saucier prong.
2 Thus, Defendants’ motion as to qualified immunity fails.
3 Defendants additionally move for summary judgment on this
4 claim as to Flores and Rodriguez. Defs.’ Mot. at 8-9.
5 Emphasizing that Flores and Rodriguez did not apply force to
6 Plaintiff, Defendants contend Plaintiff cannot maintain an
7 excessive force claim against them. Defs.’ Mot. at 8-9.
8 However, Plaintiff seeks to hold these two officers liable as
9 integral participants “because they not only stood and watched
10 [Mendez and Downey] but participated in the uses of force.”
11 Pl.’s Reply at 9.
12 In Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir.
13 2004), the Ninth Circuit articulated the “integral participant”
14 theory of liability for Fourth Amendment excessive force claims.
15 Specifically, the Boyd Court explained that officers may be held
16 liable as integral participants if they stand watch while the
17 excessive force occurs, are aware of it, and do not object. Id.
18 Moreover, “‘integral participation’ does not require that each
19 officer’s actions themselves rise to the level of a
20 constitutional violation. For example . . . officers who
21 provided armed backup during an unconstitutional search were
22 ‘integral’ to that search, and were therefore participants
23 rather than mere bystanders.” Id.
24 Here after carefully reviewing the evidentiary record,
25 including the video footage, the Court concludes a reasonable
26 jury could find for Plaintiffs that Flores and Rodriguez were
27 integral participants. That is, a reasonable jury could find
28 that they were more than “mere bystanders”. Boyd, 374 F.3d at
1 780. Accordingly, Flores and Rodriguez are not entitled to
2 summary judgment on the Section 1983 excessive force claim
3 either.
4 3. Third Claim: Monell
5 Both Plaintiff and Defendants also seek summary judgment on
6 Plaintiff’s third Monell cause of action against the County.
7 Pl.’s Mot. at 13-14; Defs.’ Mot. at 16-18. A local government
8 unit may be held civilly liable under Section 1983 where an
9 alleged constitutional violation is the result of policy or
10 custom. Monell v. Dep’t of Soc. Servs. of the City of New York,
11 426 U.S. 658, 690-691 (1978). To prevail on a Monell claim, a
12 plaintiff must establish: “(1) that he possessed a
13 constitutional right of which he was deprived; (2) that the
14 municipality had a policy; (3) that this policy amounts to
15 ‘deliberate indifference’ to the plaintiff’s constitutional
16 right; and (4) that the policy is the ‘moving force behind the
17 constitutional violation.’” Oviatt ex rel. Waugh v. Pearce, 954
18 F.2d 1470, 1474 (9th Cir. 1992) (internal citation omitted).
19 Plaintiff’s motion – which seeks to hold the County liable
20 for training officers to use the pain compliance technique that
21 Mendez used, see Pl.’s Mot. at 14; Pl.’s Reply at 8 - fails on
22 the first element because as explained above, he has not
23 established the underlying constitutional violation. Because
24 Plaintiff did not establish as a matter of law that he was
25 deprived of his Fourth Amendment right to be free of excessive
26 force, he is not entitled to summary judgment on his Monell
27 claims.
28 In their cross-motion, Defendants advance three arguments.
1 Defs.’ Mot. at 16-18. First, they argue Monell liability cannot
2 attach because Mendez and Downey’s conduct was constitutional.
3 Id. at 17. But as explained above, the Court cannot decide
4 whether or not the underlying conduct was constitutional as a
5 matter of law given the many genuine disputes of material facts.
6 Thus, Defendants’ first argument fails. Second, Defendants
7 contend there is no evidence the County failed to train or
8 supervise Downey in the application of a leg sweep takedown,
9 pointing out “[Plaintiff]’s own expert opined that there was no
10 County policy that allowed for [his] fracture.” Defs.’ Mot. at
11 18. But Plaintiff has brought forward evidence refuting this
12 contention. See Pl.’s Resp. to Defs.’ SUF. ¶ 73 (citing to
13 Roger Clark Rule 26 Report, ECF No. 27-5). Thus, this argument
14 likewise fails to establish Defendants are entitled to summary
15 judgment on the Monell claim.
16 Finally, Defendants argue Mendez’s use of the pain
17 compliance technique was consistent with County training and the
18 County training for the application of the pain compliance
19 technique is itself constitutional. Defs.’ Mot. at 18.
20 However, once again Plaintiff has brought forward evidence to
21 refute this argument. See Pl.’s Resp. to Defs.’ SUF. ¶ 64
22 (citing to Jacques Depo. at 26, ECF No. 27-1). Specifically, in
23 her deposition, San Joaquin Correctional Officer Amber Jacques
24 testified that officers are not trained to use pain compliance
25 techniques against a person for failure to look at a camera
26 during a booking photo. Jacques Depo. at 26. This testimony
27 undercuts the first premise of Defendants’ final argument – that
28 Mendez’s use of pain compliance was consistent with County
1 training. As such, the Court need not reach the second premise
2 – that the County training is itself constitutional and denies
3 Defendants’ motion for summary judgment on Plaintiff’s Monell
4 claims.
5 4. Fourth Claim: Bane Act
6 Defendants move for summary judgment on Plaintiff’s fourth
7 claim for violation of the Bane Act. Defs.’ Mot. at 18-19;
8 Defs.’ Reply at 8. They argue this claim “fails for the same
9 reason the federal excessive force claim fails; because Downey
10 and Mendez’s force was objectively reasonable under the
11 circumstances.” Defs.’ Mot. at 18-19. However, as explained
12 above, numerous disputed issues of material fact preclude the
13 Court from finding that Downey and Mendez’s uses of force were
14 reasonable as a matter of law. These same issues thus preclude
15 summary judgment on Plaintiff’s Bane Act claim too.
16 Furthermore, the Bane Act imposes an additional requirement
17 beyond a finding of a constitutional violation; it requires that
18 an officer possessed a specific intent to violate plaintiff’s
19 rights. Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th
20 Cir. 2018). To establish this specific intent element, there
21 must be, inter alia, a factual finding that the officer acted
22 with the particular purpose of interfering with the plaintiff’s
23 right. Cornell v. City and Cty. of S.F., 17 Cal.App.5th 766,
24 803-804 (2017). On the present record, a reasonable jury could
25 conclude that Defendants acted with such a purpose. Thus, this
26 question of fact must go to a jury and summary judgment for
27 Defendants on Plaintiff’s Bane Act claim is denied.
28 ///
1 5. Sixth Claim: Battery
2 Defendants also seek summary judgment on Plaintiff’s battery
3 claim. Defs.’ Mot. at 19; Defs.’ Reply at 8. Battery claims
4 require a showing that the officer used unreasonable force.
5 Nelson v. City of Davis, 709 F.Supp.2d 978, 992 (E.D. Cal. 2010).
6 Defendants contend this claim fails because any touching of
7 Plaintiff was lawful and therefore Plaintiff cannot demonstrate
8 the application of unreasonable force. Defs.’ Mot. at 19. But
9 as Plaintiff counters, the same issues of material fact discussed
10 with respect to the Section 1983 excessive force claim arise
11 here. Pl.’s Reply at 15; see also Nelson, 709 F.Supp.2d at 992
12 (“Because the same standards apply to both state law assault and
13 battery and Section 1983 claims premised on constitutionally
14 prohibited excessive force, the fact that Plaintiff’s Section
15 1983 claims under the Fourth Amendment survive summary judgment
16 also mandates that the assault and battery claims similarly
17 survive.”) Summary judgment for Defendants on Plaintiff’s
18 battery claim is denied.
19 6. Seventh Claim: Negligence
20 Finally, both Plaintiff and Defendants seek summary
21 judgment on Plaintiff’s seventh cause of action for negligence.
22 Pl.’s Mot. at 13; Defs.’ Mot. at 19-20. As another Eastern
23 District Court has explained, Plaintiff's negligence claim
24 “requires an assessment of whether the officers used reasonable
25 care in quelling the subject disturbance,” which “is akin to the
26 analysis employed under the Fourth Amendment.” Nelson, 709
27 F.Supp.2d at 992. “The fact that the Court has already
28 determined. . . that unreasonable force for purposes of the
ne nnn ene en ne nnn on nn on io nn nnn nn enn ne I I Ome eee
1 Fourth Amendment may have been employed similarly directs a
2 conclusion that Plaintiff's negligence claims survive [summary
3 judgment] as well.” Id. at 992-993. So too here. The same
4 issues of material fact surrounding Mendez and Downey’s uses of
5 force which preclude summary judgment on Plaintiff’s Fourth
6 | Amendment excessive force claim also preclude summary judgment
7 on this claim. Accordingly, the Court denies both parties’
8 motions as to the negligence claim.
9 Til. ORDER
10 For the reasons set forth above:
11 (1) Plaintiff’s Motion for Summary Judgment is DENIED;
12 (2) Defendants’ Motion for Summary Judgment on Plaintiff’s
13 Second Cause of Action is GRANTED; and
14 (3) Defendants’ Motion for Summary Judgment on Plaintiff’s
15 First, Third, Fourth, Sixth, and Seventh Causes of Action is
16 DENIED.
17 IT IS SO ORDERED.
18 Dated: February 8, 2022
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