Buller v. Woodrow

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5 SAN JOSE DIVISION

6

7 BRYAN BULLER, Case No. 17-cv-06562-BLF

8 Plaintiff,

ORDER GRANTING IN PART

9 v. DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT; DISMISSING

10 CHRIS WOODROW, et al., PLAINTIFF’S STATE LAW CLAIMS

WITHOUT PREJUDICE

11 Defendants.

[Re: ECF 45]

12

13 Plaintiff, Mr. Bryan Buller, brought this suit against the City of Morgan Hill (the “City”)

14 and three City of Morgan Hill police officers (together with the City, “Defendants”) alleging

15 violations of 42 U.S.C. § 1983 and various California state laws arising from his arrest. This case

16 turns on a unique set of facts because unfortunately, Mr. Buller, has passed away since the filing

17 of the Complaint. ECF 51. Upon notification of Mr. Buller’s passing, the Court stayed the case

18 for 30 days to allow Buller’s estate to make an appearance. ECF 52. Because Buller’s estate has

19 made no appearance, and no discovery was conducted by Buller before his passing, the Court

20 issues this Order based on Defendants’ unopposed motion for summary judgment. The Court has

21 considered the Complaint, Defendants’ briefing, the admissible evidence, and the applicable law.

22 For the reasons that follow, Defendants’ motion for summary judgment is GRANTED IN PART

23 and Buller’s remaining state law claims are DISMISSED without prejudice.

24

I. BACKGROUND

25

A. Plaintiff’s Complaint

26 In the early morning of November 22, 2015, Bryan Buller was driving to his home in the

27 City of Morgan Hill, California. Compl. ¶ 6. Buller claims that when he arrived at a stoplight, he

1 was unaware that a police vehicle was behind him. Compl. ¶ 6. When the police officers turned

2 on their sirens behind him, Buller claims that it was unclear that they were directed toward him

3 because this was near a fire station where there was frequent activity. Compl. ¶ 8. Buller claims

4 that despite there being no indication that he was fleeing, that the officers “executed a risky

5 maneuver and attempted to ram plaintiff’s vehicle by driving in front of him.” Compl. ¶ 9. Buller

6 says he became frightened as a result. Compl. ¶ 9. Because Buller was close to his house, he

7 proceeded to drive home slowly and pulled into his driveway. Compl. ¶¶ 9-10. Buller claims that

8 as soon as he got out of the car, Officers Chris Woodrow and Charles Rudisel, without

9 provocation, began striking and beating him with their hands. Compl. ¶ 11. Buller claims that he

10 tried to comply as best he could with inconsistent demands from the officers. Compl. ¶ 12.

11 Regardless, Buller claims the officers, now including Defendant Sergio Pires, sprayed him with

12 pepper spray and continued beating him. Compl. ¶ 13. Further, Buller claims that officers who

13 arrived at the scene later, including Officer Pires, interviewed witnesses, “contradicted and argued

14 with the witnesses and attempted to have them change their stories.” Compl. ¶ 16. When the

15 paramedics arrived, Buller claims that Officer Woodrow “told paramedics to stop and attempted to

16 have plaintiff breathe into a breathalyzer device,” which Buller rejected. Compl. ¶ 17. Buller was

17 then taken to Saint Louise Hospital, where Buller claims it was found that he had fractured ribs, a

18 torn right rotator cuff, a dislocated left shoulder, bulging disks, and numbness in his hands.

19 Compl. ¶ 18.

20 B. Officer’s Declarations

21 At approximately 1:15 a.m. on November 22, 2015, Officers Woodrow and Rudisel were

22 driving northbound on Monterey Road in Morgan Hill in a marked Morgan Hill Police

23 Department Vehicle. Declaration of Chris Woodrow (“Woodrow Decl.”) ¶ 2, ECF 45-2;

24 Declaration of Charles Rudisel (“Rudisel Decl.”) ¶ 2, ECF 45-3. Officers Woodrow and Rudisel

25 noticed a white truck in front of them speeding and weaving in and out of its lane. Woodrow

26 Decl. ¶ 2; Rudisel Decl. ¶ 2. The white truck, with the officers’ vehicle now behind it,

27 approached a traffic light at the intersection of Old Monterey Road and Monterey Road.

1 patrol vehicle’s emergency equipment, specifically, red lights and sirens. Woodrow Decl. ¶ 3;

2 Rudisel Decl. ¶ 2. The driver of the white truck, later identified as Bryan Buller, did not apply his

3 brakes, did not attempt to pull over, and did not activate his turn signal to indicate that he intended

4 to comply with the stop command from Officers Woodrow and Rudisel. Woodrow Decl. ¶ 4;

5 Rudisel Decl. ¶ 3. The vehicle proceeded to turn left and abruptly stopped at the stop sign on Old

6 Monterey Road and Llagas Road near the El Toro Fire Station. Woodrow Decl. ¶¶ 4-5; Rudisel

7 Decl. ¶¶ 3-4. The vehicle continued westbound on Llagas Road and made a left turn heading

8 southbound onto Bender Circle. Woodrow Decl. ¶¶ 4-5; Rudisel Decl. ¶¶ 3-4. At this point,

9 Officer Woodrow, who was driving, used the northbound lane on Bender Circle travelling south in

10 an attempt to cut off the white truck. Woodrow Decl. ¶ 6; Rudisel Decl. ¶ 4. Noticing that the

11 truck had no intention of stopping, however, Officer Woodrow slammed on his brakes to prevent a

12 collision. Woodrow Decl. ¶ 6; Rudisel Decl. ¶ 4. Officers then saw the garage door at 169 Bender

13 Circle open and the white truck pull into the driveway. Woodrow Decl. ¶ 7; Rudisel Decl. ¶ 5.

14 Officers state that they believed Buller was attempting to flee. Woodrow Decl. ¶ 7; Rudisel Decl.

15 ¶ 5.

16 Officer Woodrow states that once he approached the vehicle, he saw what looked like a

17 black baton, which turned out to be a metal flashlight, on the floor of the driver’s side of Buller’s

18 truck. Woodrow Decl. ¶ 7. Officer Woodrow states that once Buller exited his vehicle, Woodrow

19 continuously ordered him to the ground, yet Buller refused to comply. Woodrow Decl. ¶ 7. Both

20 Officers noticed that Buller was 6’2’’ and approximately 270 lbs. Woodrow Decl. ¶ 8; Rudisel

21 Decl. ¶ 6. Officer Woodrow states that Buller turned to him with his right arm up. Woodrow

22 Decl. ¶ 8. Officer Woodrow perceived this as a threat and struck Buller’s right arm with his baton,

23 which was ineffective. Woodrow Decl. ¶ 8. At this point, Officer Woodrow states that he could

24 smell a strong odor of an alcoholic beverage from Buller’s person. Woodrow Decl. ¶ 8. Officers

25 Woodrow and Rudisel, recognizing the threat, grabbed Buller and pulled him to the ground.

26 Woodrow Decl. ¶ 9; Rudisel Decl. ¶ 6.

27 Officer Woodrow states that Buller struck him on the forehead with his right elbow and

1 Buller continued to try to stand up despite officers’ ordering Buller to stay on the ground and place

2 his hands behind his back. Woodrow Decl. ¶ 9; Rudisel Decl. ¶ 7. Officer Woodrow warned

3 Buller that if Buller did not comply, that he would use his taser. Woodrow Decl. ¶ 10; Rudisel ¶

4 8. Officer Woodrow states that Buller continued to resist, so he removed the cartridge from his

5 department-issued taser and performed a dry stun on Buller’s right shoulder. Woodrow Decl. ¶

6 10. At this point, Officer Woodrow called for additional units. Woodrow Decl. ¶ 10. Both

7 Officers state that the first drive stun was ineffective, so Officer Rudisel attempted a second drive

8 stun with his taser, which also proved ineffective. Woodrow Decl. ¶ 10; Rudisel Decl. ¶ 9.

9 Officer Rudisel states that Buller continued to try and get up, so he grabbed Officer Woodrow’s

10 baton and hit Buller three times on the back of his left thigh. Rudisel Decl. ¶ 9. At this time,

11 several witnesses emerged from Buller’s residence. Woodrow Decl. ¶ 11. Officer Woodrow

12 states he was concerned that because additional officers had not yet arrived, that “others could

13 potentially join the fray.” Woodrow Decl. ¶ 11. Because Buller was still trying to get up Officer

14 Woodrow deployed his department-issued pepper spray on the right side of Buller’s face for 2-3

15 seconds. Woodrow Decl. ¶ 11; Rudisel Decl. ¶ 10. Officers both state that this too was

16 ineffective. Woodrow Decl. ¶ 11; Rudisel Decl. ¶ 10.

17 Eventually, Officer Rudisel was able to apply his handcuffs to Buller’s left wrist. Rudisel

18 Decl. ¶ 11. According to Officer Woodrow, Buller still attempted to get up, so he grabbed

19 Buller’s collar and forced Buller’s head to the ground. Woodrow Decl. ¶ 13-14. By this time,

20 additional units arrived, including Officer Pires, and the officers were able to complete the arrest.

21 Woodrow Decl. ¶ 14; Rudisel Decl. ¶ 13-14. Buller refused a breath or blood alcohol test on the

22 scene. Woodrow Decl. ¶ 14. A blood test later taken at the hospital showed that Buller had a

23 0.251% blood alcohol content level. Woodrow Decl. ¶ 16; Rudisel Decl. ¶ 12.

24 C. Buller’s Claims Against the City of Morgan Hill and the Officers

25 Buller filed his Complaint against the City of Morgan Hill and three City of Morgan Hill

26 police officers, Officer Chris Woodrow, Officer Charles Rudisel and Officer Sergio Pires (the

27 “Officers”), alleging Fourth and Fourteenth Amendment violations including unreasonable search

1 seeks to hold the City liable for these Section 1983 violations and ongoing constitutional

2 violations due to its customs and policies. Compl. ¶ 29. Further, Buller brings a host of derivative

3 state law claims against the Officers (and against the City pursuant to respondeat superior)

4 including assault and battery, intentional infliction of emotional distress, negligence, negligent

5 infliction of emotional distress, and violation of California Civil Code Section 52.1 (the “Bane

6 Act”). Compl. ¶¶ 30-52.

7 II. LEGAL STANDARD

8 A. Summary Judgment

9 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine

10 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of

11 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P.

12 56(a)). Material facts are those that may affect the outcome of the case. Anderson v. Liberty

13 Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if there is

14 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248–

15 49.

16 The party moving for summary judgment bears the initial burden of informing the court of

17 the basis for the motion, and identifying portions of the pleadings, depositions, answers to

18 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material

19 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party

20 must either produce evidence negating an essential element of the nonmoving party’s claim or

21 defense or show that the nonmoving party does not have enough evidence of an essential element

22 to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

23 Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

24 If the moving party meets its initial burden, the burden shifts to the nonmoving party to

25 produce evidence supporting its claims or defenses. Nissan Fire, 210 F.3d at 1103. If the

26 nonmoving party does not produce evidence to show a genuine issue of material fact, the moving

27 party is entitled to summary judgment. Celotex, 477 U.S. at 323. “The court must view the

1 nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. However, “the ‘mere existence of a

2 scintilla of evidence in support of the plaintiff’s position’” is insufficient to defeat a motion for

3 summary judgment. Id. (quoting Anderson, 477 U.S. 242, 252 (1986)). “Where the record taken

4 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

5 genuine issue for trial.” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

6 U.S. 574, 587 (1986)).

7 B. Qualified Immunity

8 “The doctrine of qualified immunity protects government officials from liability for civil

9 damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or

10 constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

11 conduct.’” Wood v. Moss, 134 S.Ct. 2056, 2066–67 (2014) (quoting Ashcroft v. al-Kidd, 131 S.Ct.

12 2074, 2080 (2011)). “[T]he Supreme Court has ‘repeatedly . . . stressed the importance of

13 resolving immunity questions at the earliest possible stage in litigation.’” Dunn v. Castro, 621

14 F.3d 1196, 1199 (9th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Under the

15 applicable pleading standard, a plaintiff must allege facts sufficient to make out a plausible claim

16 that it would have been clear to the defendant officer that his conduct was unlawful in the situation

17 he confronted. Id. at 2067. “Because qualified immunity is an affirmative defense from suit, not

18 merely from liability, ‘[u]nless the plaintiff’s allegations state a claim of violation of clearly

19 established law, a defendant pleading qualified immunity is entitled to dismissal before the

20 commencement of discovery.’” Doe By and Through Doe v. Petaluma City School Dist., 54 F.3d

21 1447, 1449–50 (9th Cir. 1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

22 In Saucier v. Katz, the Supreme Court set forth a two-part approach for analyzing

23 qualified immunity. 533 U.S. 194, 121 (2001). The analysis contains both a constitutional inquiry

24 and an immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003).

25 The constitutional inquiry requires the court to determine this threshold question: “Taken in the

26 light most favorable to the party asserting the injury, do the facts alleged show the officer’s

27 conduct violated a constitutional right?” Saucier, 533 U.S. at 201. If the Court determines that a

1 determine whether the right was clearly established. Id. “The relevant, dispositive inquiry in

2 determining whether a right is clearly established is whether it would be clear to a reasonable

3 officer that his conduct was unlawful in the situation he confronted.” Id. at 202. The Supreme

4 Court has clarified that the sequence of analysis set forth in Saucier is not mandatory and that a

5 court may exercise its sound discretion in determining which of the two prongs of the qualified

6 immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223, 241-42 (2009). Thus, in

7 some cases, it may be unnecessary to reach the ultimate constitutional question when officers

8 would be entitled to qualified immunity in any event, a result consistent with longstanding

9 principles of judicial restraint.

10 The Supreme Court recently reiterated the longstanding principle that a “clearly

11 established” constitutional right “should not be defined ‘at a high level of generality.’” White v.

12 Pauly, 137 S. Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). Rather, it must be

13 “particularized” to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

14 (1987)). Defining the right at too high a level of generality “avoids the crucial question whether

15 the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff v.

16 Ricard, 134 S.Ct. 2012, 2023 (2014). “[A] defendant cannot be said to have violated a clearly

17 established right unless the right’s contours were sufficiently definite that any reasonable official

18 in the defendant’s shoes would have understood that he was violating it.” Id. “In other words,

19 ‘existing precedent must have placed the statutory or constitutional question’ confronted by the

20 official ‘beyond debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). “A right can be clearly

21 established despite a lack of factually analogous preexisting case law, and officers can be on

22 notice that their conduct is unlawful even in novel factual circumstances.” Ford v. City of Yakima,

23 706 F.3d 1188, 1195 (9th Cir. 2013). “The relevant inquiry is whether, at the time of the officers’

24 action, the state of the law gave the officers fair warning that their conduct was

25 unconstitutional.” Id.

26 III. DISCUSSION

27 Defendants move for summary judgment on all of Buller’s claims. See generally Motion

1 which this motion arises have left the motion unopposed. Therefore, this Court addresses the

2 arguments raised in Defendants’ motion in turn.

3 A. Constitutional Violations Against the Officers

4 In count one of his Complaint, Buller asserts a claim alleging that Officers deprived him of

5 the right to be free from unreasonable search and seizures and the right to be free from the use of

6 excessive force protected by the Fourth and Fourteenth Amendments. “[I]f a constitutional claim

7 is covered by a specific constitutional provision . . . the claim must be analyzed under the standard

8 appropriate to that specific provision, not under the rubric of substantive due process.” Cty. of

9 Sacramento v. Lewis, 523 U.S. 833, 843 (1998). Claims for unreasonable seizures and excessive

10 force fall within the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 9 (1968); Graham v.

11 Connor, 490 U.S. 386, 395 (1989). Because Buller’s claims for violation of the Fourth and

12 Fourteenth Amendments arise from the same series of events and appear to be limited to

13 allegations of excessive force and unlawful search and seizure, the Court limits its analysis to the

14 Fourth Amendment.

15 Buller’s Fourth Amendment excessive force and unlawful search and seizure claims are

16 discussed below. Due to the unfortunate circumstances of this case, the only admissible evidence

17 available to the Court at summary judgment is the sworn declarations of Officers Woodrow and

18 Rudisel. In its analysis, the Court relies on those declarations, viewed in the light most favorable

19 to Buller.

20 1. Excessive force

21 Buller contends that the Officers are responsible for using excessive force against him in

22 violation of the Fourth Amendment. Compl. ¶ 25. As explained above, a government official

23 sued under Section 1983 is entitled to qualified immunity unless the plaintiff shows that (1) the

24 official violated a statutory or constitutional right, and (2) the right was “clearly established” at the

25 time of the challenged conduct. Plumhoff, 134 S.Ct. at 2023 (citing al-Kidd, 131 S.Ct. at 2080).

26 Because Buller must succeed on both prongs the Court addresses each in turn. See Nelson v. City

27 of Davis, 685 F.3d 463, 477-78 (9th Cir. 2007).

a. Constitutional violation

1

Turning to the first prong of qualified immunity at summary judgment, Defendants must

2

show that no rational trier of fact could find that the Officers’ use of force violated Buller’s Fourth

3

Amendment rights. If the evidence, viewed in the light most favorable to Buller, could support a

4

finding of excessive force, then Defendants are not entitled to summary judgment on the excessive

5

force claim. See Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).

6

The Fourth Amendment “guarantees citizens the right to be secure in their persons . . .

7

against unreasonable . . . seizures of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989)

8

(internal quotation marks omitted) (alteration in original). “[A]ll claims that law enforcement

9

officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop,

10

or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

11

‘reasonableness’ standard.” Id. at 395; see also City of Hemet, 394 F.3d at 700–01.

12

The “reasonableness” of a seizure depends on how it was carried out. Graham, 490 U.S. at

13

395. The “objective reasonableness” of an officer’s use of force in a particular case is determined

14

“in light of the facts and circumstances confronting [him], without regard to [his] underlying intent

15

or motivation.” Id. at 396–97. “Because this inquiry is inherently fact specific, the determination

16

whether the force used to effect an arrest was reasonable under the Fourth Amendment should

17

only be taken from the jury in rare cases.” Green v. City & Cty. of San Francisco, 751 F.3d 1039,

18

1049 (9th Cir. 2014) (internal quotations omitted); see also Avina v. United States, 681 F.3d 1127,

19

1130 (9th Cir. 2012) (“summary judgment or judgment as a matter of law in excessive force cases

20

should be granted sparingly”).

21

Moreover, the Supreme Court has explained that evaluating an excessive force claim

22

“requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth

23

Amendment interests against the countervailing governmental interests at stake.” Graham, 490

24

U.S. at 396 (internal quotation marks and citation omitted). “The calculus of reasonableness must

25

embody allowance for the fact that police officers are often forced to make split-second

26

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of

27

force that is necessary in a particular situation.” Id. at 396-97. “The ‘reasonableness’ of a

1 particular use of force must be judged from the perspective of a reasonable officer on the scene,

2 rather than with the 20/20 vision of hindsight.” Id. at 396 (internal quotation marks and citation

3 omitted).

4 The Ninth Circuit has articulated a three-step approach to Graham balancing. See

5 Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011). First, the Court “must assess the

6 severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and

7 amount of force inflicted.” Id. (internal quotation marks and citation omitted). Second, the Court

8 must “evaluate the government’s interest in the use of force.” Id. Finally, the Court must

9 “balance the gravity of the intrusion on the individual against the government’s need for that

10 intrusion.” Id. (internal quotation marks and citation omitted); see also Meredith v. Erath, 342

11 F.3d 1057, 1061 (9th Cir. 2003) (“This standard requires us to balance the amount of force applied

12 against the need for that force.”).

13 Despite the Graham factors and the approach laid out in Glenn, the Court must keep in

14 mind that “there are no per se rules in the Fourth Amendment excessive force context; rather,

15 courts must still slosh their way through the factbound morass of ‘reasonableness.’” See Mattos v.

16 Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)).

17 The Court embarks on that endeavor as follows.

18 i. Nature and quality of the intrusion

19 First, as to the severity of the intrusion on Buller’s Fourth Amendment rights, the record

20 indicates that the force employed by Officers Woodrow and Rudisel was at least an intermediate

21 use of force because it was capable of inflicting significant pain and causing serious

22 injury. See Young v. Cty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011) (holding that

23 pepper spray and baton blows constitute intermediate force that, “while less severe than deadly

24 force, nonetheless present a significant intrusion upon an individual’s liberty interests.”)

25 Defendants cite Huber v. Coulter, to support their proposition that “[c]ases involving

26 takedowns in which courts have denied qualified immunity have generally involved greater levels

27 of force and significantly greater injuries.” Mot. at 8 (citing Huber v. Coulter, 2015 WL

1 initially tackled Buller to the ground. Woodrow Decl. ¶ 9; Rudisel Decl. ¶ 6; see also Compl. ¶

2 11. When Buller resisted arrest, the officers used baton strikes, tasers and pepper spray to subdue

3 Buller. Woodrow Decl. ¶¶ 8-11; Rudisel Decl. ¶¶ 8-10; see also Compl. ¶¶ 11, 13. When these

4 attempts failed, Officers Woodrow further forced Buller head to the ground. Woodrow Decl. ¶ 13.

5 The Ninth Circuit has recognized that “[t]he police arsenal includes many different types

6 of force, which intrude upon the Fourth Amendment rights of the individual to varying

7 degrees.” Nelson v. City of Davis, 685 F.3d 867, 878 (9th Cir. 2012). Moreover, “physical blows

8 or cuts often constitute a more substantial application of force than categories of force that do not

9 involve a physical impact to the body.” Id. (internal quotations and citation omitted).

10 Here, while it is undisputed that Officers used physical force on Buller, “[n]ot every push

11 or shove, even if it may seem unnecessary in the peace of the judge’s chambers, . . . violates the

12 Fourth Amendment.” Graham, 490 U.S. at 396 (internal quotations and citation omitted). The

13 Court, therefore, must consider the amount of physical force used against Buller in light of the

14 governmental interests at stake.

15 ii. Governmental interest in use of force

16 Under Graham v. Connor, the Court evaluates the government’s interest in the use of force

17 by examining three core factors: (1) the severity of the crime at issue; (2) whether the suspect

18 poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is

19 actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396; see also

20 Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Bryan v. MacPherson, 630 F.3d 805,

21 826 (9th Cir. 2010). These factors are not exclusive and are “simply a means by which to

22 determine objectively ‘the amount of force that is necessary in a particular situation.’” Deorle,

23 272 F.3d at 1280 (quoting Graham, 490 U.S. at 396-97). In other words, the Court examines the

24 totality of the circumstances and considers “whatever specific factors may be appropriate in a

25 particular case, whether or not listed in Graham.” Franklin v. Foxworth, 31 F.3d 873, 876 (9th

26 Cir. 1994). For example, in some cases the Court may find it necessary to consider the availability

27 of alternative methods of capturing or subduing a suspect. See City of Hemet, 394 F.3d at 701.

1 force during Buller’s arrest. It is true that the Buller was suspected of driving under the influence,

2 which “while certainly not to be taken lightly, was a misdemeanor” and not a violent crime. See

3 Hammer v. Gross, 932 F.2d 842, 846 (9th Cir. 1991). That said, the “most important” factor in

4 considering the governmental interest in the use of force under Graham is whether the suspect

5 posed an “immediate threat to the safety of the officers or others.” City of Hemet, 394 F.3d at 702

6 (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)); see also Deorle, 272 F.3d at 1281.

7 (“A simple statement by an officer that he fears for his safety or the safety of others is not enough;

8 there must be objective factors to justify such a concern.”).

9 Buller was speeding and weaving in and out of his traffic lane. Woodrow Decl. ¶ 2;

10 Rudisel Decl. ¶ 2. When Officers Woodrow and Rudisel, in a patrol car with red lights and sirens

11 activated, attempted to cut off Buller’s truck, Buller increased his speed and drove directly toward

12 the officers’ vehicle.” Woodrow Decl. ¶¶ 3, 6; Rudisel Decl. ¶¶ 2, 4. Further, Buller ignored

13 multiple orders to get on the ground and produce his hands. Woodrow Decl. ¶¶ 8, 9; Rudisel Decl.

14 ¶¶ 6, 7. Throughout the encounter Buller “continually tried to stand up.” Woodrow Decl. ¶ 9;

15 Rudisel Decl. ¶ 8. Further, Buller struck Officer Woodrow on the forehead with his elbow,

16 “causing pain to the rights side of [Woodrow’s] forehead” and ripped the radio microphone from

17 Woodrow’s uniform. Woodrow Decl. ¶ 9. In these circumstances, Defendants argue, the Officers

18 were “justified in using elevated levels of force (baton strikes, taser applications, etc.) in order to

19 gain [Buller’s] compliance.” Mot. at 8. The Court agrees. Defendants’ uncontested evidence is

20 sufficient to indicate that Buller posed an immediate threat to the safety of the Officers at the time

21 of his arrest.

22 The third and final consideration under Graham’s governmental interest factor is whether

23 the suspect was actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396.

24 Both officers state that Buller was attempting to flee when he initially exited his vehicle.

25 Woodrow Decl. ¶ 7; Rudisel Decl. ¶ 5. Buller ignored multiple orders to get on the ground and

26 produce his hands. Woodrow Decl. ¶¶ 8, 9; Rudisel Decl. ¶¶ 6, 7. Several times during their

27 encounter, Officers Woodrow and Rudisel state that Buller “continually tried to stand up.”

1 was actively resisting arrest.

2 In sum, the Court concludes that the Officers had a strong governmental interest in the use

3 of force to apprehend Buller.

4 iii. Balancing competing interests

5 In this unique instance where Plaintiff has presented no evidence, the Court concludes that

6 the governmental interests in the use of force against Buller justify the force used against him.

7 Ultimately, the factors above, based on Defendants’ evidence, weigh in favor of finding that the

8 Officers’ use of force was reasonable. Therefore, Defendants did not violate Buller’s Fourth

9 Amendment right against excessive use of force.

10 b. Clearly established

11 Because there is no triable question of fact regarding the constitutional violation on the

12 excessive force claim, the Court need not determine whether the constitutional violation was

13 clearly established at the time of the arrest.

14 ***

15 In sum, the Officers are entitled to qualified immunity and their motion for summary

16 judgment on the excessive force claim is GRANTED.

17 2. Unlawful Search and Seizure Against the Officers

18 In his Complaint, Buller further alleges that Officers are responsible for an unlawful search

19 and seizure in violation of the Fourth Amendment. Compl. ¶ 25. As explained above, a

20 governmental official sued under Section 1983 is entitled to qualified immunity unless the plaintiff

21 shows that (1) the official violated a statutory or constitutional right, and (2) the right was “clearly

22 established” at the time of the challenged conduct. Plumhoff, 134 S.Ct. at 2023 (citing al-Kidd,

23 131 S.Ct. at 2080). Because Buller must succeed on both prongs the Court addresses each in turn.

24 See Nelson v. City of Davis, 685 F.3d 463, 477-78 (9th Cir. 2007).

25 a. Constitutional Violation

26 Under the Fourth Amendment, made applicable to the States by the Fourteenth

27 Amendment, (Mapp v. Ohio, 367 U.S. 643 (1961)), the people are “to be secure in their persons,

1 issue, but upon probable cause.” Maryland v. Pringle, 540 U.S. 366, 369 (2003) (citing U.S.

2 Const. amend. IV). “A warrantless arrest of an individual in a public place for a felony or a

3 misdemeanor committed in the officer’s presence, is consistent with the Fourth Amendment if the

4 arrest is supported by probable cause.” Pringle, 540 U.S. at 369 (citing United States v. Watson,

5 423 U.S. 411, 424 (1976)). “Probable cause to arrest depends on whether, ‘at the moment the

6 arrest was made . . . the facts and circumstances within the arresting officers’ knowledge and of

7 which they had reasonably trustworthy information were sufficient to warrant a prudent man in

8 believing that the (suspect) had committed or was committing an offense.’” Adams v. Williams,

9 407 U.S. 143, 148 (1972) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)).

10 As to first prong of qualified immunity at summary judgment, Defendants argue, and the

11 Court agrees, that the Officers did not violate Buller’s Fourth Amendment right against unlawful

12 search and seizure because they had probable cause to arrest Buller. See Mot. at 6. Defendants

13 argue that Officers Woodrow and Rudisel believed Buller violated California Penal Code Section

14 148(a)(1). See Mot. at 6-7; Woodrow Decl. ¶ 14. Section 148(a)(1) provides that every person

15 who willfully resists any peace officer in the discharge of any duty of his or her office or

16 employment shall be punished by fine or by imprisonment or by both that fine and imprisonment.

17 Cal. Pen. Code § 148(a)(1). The evidence shows that Buller was speeding and weaving in and out

18 of its traffic lane and refused to stop for police. Woodrow Decl. ¶¶ 2, 5; Rudisel Decl. ¶¶ 2, 3.

19 Specifically, Officer Woodrow activated his patrol vehicle’s red lights and siren and initiated a “a

20 vehicle code enforcement stop” – but Buller did not pull over. Woodrow Decl. ¶ 4. When

21 Officers Woodrow and Rudisel attempted to cut off Buller’s truck, Buller increased his speed and

22 drove directly toward the officers’ vehicle. Woodrow Decl. ¶ 6; Rudisel Decl. ¶ 4. Once Buller

23 got to his residence, he continued to resist orders to get on the ground, and produce his hands for

24 arrest. Woodrow Decl. ¶ 9; Rudisel Decl. ¶ 7. Defendants’ uncontested evidence is sufficient to

25 establish that Officers’ believed that Buller was violating Section 148(a)(1). Therefore, the

26 Officers had probable cause. Accordingly, the Officers did not violate Buller’s Fourth

27 Amendment right against unlawful search and seizure.

b. Clearly established

1

Because there is no triable question of fact regarding the constitutional violation on the

2

unlawful search and seizure claim, the Court need not determine whether the constitutional

3

violation was clearly established at the time of the arrest.

4

***

5

In sum, the Officers are entitled to qualified immunity and their motion for summary

6

judgment on the unlawful search and seizure claim is GRANTED.

7

B. Constitutional Violations Against the City

8

Defendants also seek summary judgment on Buller’s Section 1983 claim against the City.

9

Mot. at 8. Buller seeks to hold the City liable for its policy or practice of “ongoing constitutional

10

violations and practices by defendant officers herein and other Morgan Hill police officers and

11

MSOs, consisting of the use of unnecessary and excessive force, false arrests, failure of officers to

12

follow procedures, inadequate internal investigations of police abuse, false reports, destruction of

13

evidence to cover up misconduct, and unequal law enforcement.” Compl. ¶ 28. Defendants

14

respond that “Plaintiff has no evidence that the City of Morgan Hill has engaged in a policy,

15

practice, or custom of violating civil rights.” Mot. at 9.

16

In order to hold the City liable under Section 1983, Buller must show “(1) that he

17

possessed a constitutional right of which he was deprived; (2) that the [City] had a policy; (3) that

18

the policy ‘amount to deliberate indifference’ to [Buller’s] constitutional right; and (4) that the

19

policy is the ‘moving force behind the constitutional violation’” Anderson v. Warner, 451 F.3d

20

1063, 1070 (9th Cir. 2006) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)).

21

Moreover, the Ninth Circuit has held that “[i]f no constitutional violation occurred, the

22

municipality cannot be held liable.” Long v. City and Cty. of Honolulu, 511 F.3d 901, 907 (9th

23

Cir. 2007).

24

The Court agrees with Defendants that Buller has provided no evidence that his injuries

25

were inflicted pursuant to an official county policy or custom. Further, as discussed above, there

26

are no constitutional violations. Therefore, the City cannot be held liable. Thus, Defendants’

27

motion for summary judgment as to the Section 1983 claim against the City is GRANTED.

C. State Law Claims

All of Buller’s remaining claims are predicated on California state law. A district court

2

may decline to exercise supplemental jurisdiction if it has dismissed all claims over which is has

3

original jurisdiction. 28 U.S.C. § 1367(c)(3); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561

4

(9th Cir. 2010). “[I]n the usual case in which all federal-law claims are eliminated before trial, the

5

balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy,

6

convenience, fairness and comity—will point toward declining to exercise jurisdiction over the

7

remaining state-law claims.” Sanford, 625 F.3d at 561. In this unique case, the factors weigh in

8

favor of declining supplemental jurisdiction because Buller has passed away and his estate has not

9

made an appearance. Having now granted summary judgment on all the federal claims alleged

10

against Defendants, the Court declines to assert supplemental jurisdiction over Buller’s remaining

11

state law claims. See City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1008

12

(9th Cir. 2010) (holding that district court acted within its discretion in declining to exercise

13

supplemental jurisdiction after granting summary judgment on all federal claims); see, e.g.,

14

Indiveri v. Mack, No. 17-00595 BLF (PR), 2019 WL 1084175, at *11 (N.D. Cal. Mar. 5, 2019)

15

(declining to exercise supplemental jurisdiction over the remaining state law claim sua sponte).

16

Accordingly, Buller’s state law claims are DISMISSED without prejudice.

17

IV. CONCLUSION

Z 18

For the foregoing reasons, Defendants’ motion for summary judgment, at ECF 45, is

19

GRANTED as to the Section 1983 claims against the Officers and the City. Additionally, the

20

Court declines to exercise supplemental jurisdiction over Buller’s five state law claims.

21

Accordingly, Buller’s state law claims are DISMISSED without prejudice.

22

IT IS SO ORDERED.

23

24

Dated: March 2, 2020

25

26 Roh flr hremmand

27 BETH LABSON FREEMAN

38 United States District Judge