“[A] plaintiff’s showing of nothing more than a 8 difference of medical opinion as to the need to pursue one course of treatment over another was 9 insufficient, as a matter of law, to establish deliberate indifference”
How later courts described this case
- “[A] plaintiff’s showing of nothing more than a 8 difference of medical opinion as to the need to pursue one course of treatment over another was 9 insufficient, as a matter of law, to establish deliberate indifference”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JUAN ORTIZ, Case No. 18-cv-07727-HSG
8 Plaintiff, ORDER ON DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT; ORDER
9 v. CONFIRMING THAT TRIAL DATE IS
VACATED AND SETTING CASE
10 CITY AND COUNTY OF SAN MANAGEMENT CONFERENCE
FRANCISCO, et al.,
11 Re: Dkt. Nos. 56, 57, 65
Defendants.
12
13 Plaintiff Juan Ortiz (“Ortiz” or “Plaintiff”) brings this suit against Officers Kevin Conway
14 (“Conway”), Sam Park (“Park”), Michael Vigil (“Vigil”), Bernard Artificio (“Artificio”), and
15 Brenda Sosa (“Sosa”) (collectively, “Individual Defendants”) and the City and County of San
16 Francisco (altogether, “Defendants”), alleging claims under 42 U.S.C. § 1983 (“Section 1983”) for
17 excessive force, deliberate indifference, and municipal liability, as well as various state law
18 claims. Pending before the Court is Defendants’ motion for summary judgment as to various
19 claims, briefing for which is complete. See Dkt. Nos. 56 (“Mot.”), 66 (“Opp.”), 70 (“Reply”).
20 Concurrently, Defendants and Plaintiff file administrative motions to seal accompanying exhibits.
21 See Dkt. Nos. 57, 65. The Court held a hearing on the motion for summary judgment on
22 November 7, 2019. Dkt. No. 73. The Court GRANTS in part and DENIES in part Defendants’
23 motion for summary judgment and GRANTS in part and DENIES in part the motions to seal.
24 I. BACKGROUND
25 On June 5, 2018, Plaintiff was pulled over by San Francisco Police officers after they
26 received reports that Plaintiff had threatened two individuals with a gun. Dkt. No. 66-2, Ex. 1 at
27 18–19. Plaintiff was transported to San Francisco County Jail, where he had to comply with a
1 Plaintiff into a dress-in cell to conduct the strip search and instructed Plaintiff to remove his
2 clothing and put the clothing into the plastic bag provided. Id. at 71:7-14; Dkt. No. 69-1, Ex. A at
3 42:22-25.
4 The parties present different accounts of what followed. Plaintiff alleges that he informed
5 Conway that he was cold, had not taken his medication that evening, and asked if he could keep
6 his shirt on. Dkt. No. 66-2, Ex. 1 at 35:12-21. Conway then got “angry” and started “cussing
7 [Plaintiff] out,” so Plaintiff took off his shirt and “tossed it at [Conway’s] feet.” Id. at 35:20-36:1,
8 44:17. Conway then “lunged at [Plaintiff], took a punch at [him]” and then “turned [his] head
9 around and slammed [his head] into the wall.” Id. at 57:23-25. When additional officers came in
10 to assist, they threw Plaintiff over the bench. Dkt. No. 69-1, Ex. A at 50:2-14. Defendants, on the
11 other hand, allege that Plaintiff “was agitated, frustrated, and upset,” “was yelling and gesturing
12 with his hands,” and that Plaintiff “turn[ed] towards [Conway] and thr[ew] the shirt, which
13 Conway perceived as a threat.” Mot. at 4 (citing Dkt. No. 69-10, Ex. J at 63:5-13, 98:13, 98:23-
14 24). Conway then stepped into the dressing area and used a “rear-wrist lock maneuver” to control
15 Plaintiff. Dkt. No. 69-10, Ex. J at 93:4-8. Thereafter, several other officers including Vigil, Park,
16 and Artificio became aware of the commotion and came to assist. Both parties agree that the
17 additional officers handcuffed and shackled Plaintiff. Dkt. No. 69-1, Ex. A at 50:2-14.1 A nurse
18 went into the dress-in cell minutes after Plaintiff was restrained. Dkt. 69-6, Ex. F at 8:17-9:04;
19 Dkt. No. 69-7, Ex. G at 8:24-9:08.
20 Defendants Conway, Vigil, and Park then took Plaintiff (who was naked, handcuffed, and
21 shackled) backwards to a safety cell down the hallway. Dkt. No. 69-1, Ex. A at 69:22-24; Dkt.
22 No. 69-10, Ex. J at 172:24-173:4. Again, the parties’ allegations of what happened next differ.
23 Plaintiff alleges that the officers threw him over a concrete slab, “[Conway] with his knee on
24 [Plaintiff’s] back, beating [Plaintiff’s] ribs.” Dkt. No. 66-5, Ex. 5 at 251-252:19. Plaintiff alleges
25 that there was a female deputy outside of the safety cell door that was laughing as the other
26
1 At times, Plaintiff confuses his allegations regarding the dress-in incident with those about the
27
safety cell incident. Compare Opp. at 3 with Dkt. No. 66-5, Ex. 4 at 251-53. When asked about
1 officers beat him. Id. at 254:10-16. Defendants allege that they simply placed him in a safety cell
2 since he was taking an “aggressive stance and thr[owing] his clothing [at a] deputy.” Dkt. No. 69-
3 3, Ex. C. Defendants also provide medical logs of the visits made by medical staff to Plaintiff
4 while he remained in the safety cell overnight. See Dkt. No. 57-4, Ex. I. Plaintiff alleges that no
5 one provided him with his blood pressure medication despite repeated requests. Dkt. No. 69-2,
6 Ex. A at 91:1–6.
7 Plaintiff was released on bail the following day, June 6, 2018. Plaintiff went to the
8 hospital on June 7, 2018, and was diagnosed with various injuries including contusions and a brain
9 bleed. See Dkt. No. 66-7, Ex. 6 at 875–877; see also Dkt. No. 66-8, Ex. 7.
10 II. LEGAL STANDARD
11 Summary judgment is proper when a “movant shows that there is no genuine dispute as to
12 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
13 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson
14 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is evidence in the
15 record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The
16 Court views the inferences reasonably drawn from the materials in the record in the light most
17 favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
18 574, 587–88 (1986), and “may not weigh the evidence or make credibility determinations,”
19 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v.
20 Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008).
21 The moving party bears both the ultimate burden of persuasion and the initial burden of
22 producing those portions of the pleadings, discovery, and affidavits that show the absence of a
23 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the
24 moving party will not bear the burden of proof on an issue at trial, it “must either produce
25 evidence negating an essential element of the nonmoving party's claim or defense or show that the
26 nonmoving party does not have enough evidence of an essential element to carry its ultimate
27 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
1 also show that no reasonable trier of fact could not find in its favor. Celotex Corp., 477 U.S. at
2 325. In either case, the movant “may not require the nonmoving party to produce evidence
3 supporting its claim or defense simply by saying that the nonmoving party has no such evidence.”
4 Nissan Fire & Marine Ins. Co., 210 F.3d at 1105. “If a moving party fails to carry its initial
5 burden of production, the nonmoving party has no obligation to produce anything, even if the
6 nonmoving party would have the ultimate burden of persuasion at trial.” Id. at 1102–03.
7 “If, however, a moving party carries its burden of production, the nonmoving party must
8 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party
9 “must do more than simply show that there is some metaphysical doubt as to the material facts.”
10 Matsushita Elec. Indus. Co., 475 U.S. at 586. A nonmoving party must also “identify with
11 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91
12 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its
13 claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp., 477 U.S.
14 at 323.
15 III. ANALYSIS
16 Plaintiff alleges six causes of action: (1) violation of Section 1983 for use of excessive
17 force; (2) violation of Section 1983 based on unconstitutional custom or policy by a municipality
18 under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978); (3) violation of
19 Section 1983 based on deliberate indifference; (4) violation of the California Bane Act; (5)
20 negligence; and (6) battery. See Dkt. No. 30 ¶¶ 24–62. Defendants move for summary judgment
21 on the deliberate indifference, Monell, and Bane Act causes of action. Defendants also move for
22 partial summary judgment on the excessive force, negligence, and battery causes of action. See
23 Mot. Because Plaintiff does not oppose Defendants’ motion for summary judgment as to the
24 Monell claim, Opp. at 22, the Court GRANTS Defendants’ motion as to that claim. The Court
25 considers the remaining arguments in turn.
26 A. Deliberate Indifference
27 “The elements of a pretrial detainee’s medical care claim against an individual defendant
1 intentional decision with respect to the conditions under which the plaintiff was confined; (ii)
2 those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant
3 did not take reasonable available measures to abate that risk, even though a reasonable official in
4 the circumstances would have appreciated the high degree of risk involved—making the
5 consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the
6 defendant caused the plaintiff’s injuries.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th
7 Cir. 2018). “With respect to the third element, the defendant’s conduct must be objectively
8 unreasonable, a test that will necessarily turn[ ] on the facts and circumstances of each particular
9 case.” Id. (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (alterations
10 in original)). This requires the plaintiff “prove more than negligence but less than subjective
11 intent—something akin to reckless disregard.” Castro, 833 F.3d at 1071.
12 Defendants argue that Plaintiff fails to demonstrate the third and fourth elements—namely,
13 Plaintiff is unable to show that Defendants acted unreasonably (given that he received medical
14 care “within minutes of the incident”), or that any delay caused him injury. Mot. at 9–10. The
15 Court agrees with both of Defendants’ arguments, viewing the record in the light most favorable
16 to Plaintiff.
17 After the incident in the dress-in cell, Nurse Johnnie Williams entered the area to evaluate
18 Plaintiff. Dkt. 69-6, Ex. F at 8:17-9:04; Dkt. No. 69-7, Ex. G at 8:24-9:08. In his deposition,
19 Plaintiff acknowledged that Nurse Williams came into the dress-in cell (although he did not
20 remember the evaluation), Dkt. No. 69-1, Ex. A at 236:19–237:9, and acknowledged that a nurse
21 later came into the safety cell, id. Ex. A at 250:11–250:17, and does not contest Defendants’
22 evidence showing numerous subsequent evaluations by medical staff, see e.g., Mot. at 6–7.
23 Instead, Plaintiff argues that Individual Defendants’ failure to inform the medical staff of possible
24 harm caused by the beating was objectively unreasonable. The Court disagrees. The video
25 evidence establishes that Defendants promptly summoned medical attention after the incident. See
26 Dkt. 69-6, Ex. F 8:17-9:04. That the officers could have taken additional precautionary actions
27 does not render their actions objectively unreasonable given that they called for medical
1 (holding that “a police officer who promptly summons the necessary medical assistance has acted
2 reasonably for purposes of the Fourth Amendment, even if the officer did not administer CPR.”).
3 To the extent that Plaintiff argues that the medical staff’s failure to identify his head trauma was
4 unreasonable, “negligent diagnosis or treatment of a medical condition is not itself sufficient.”
5 Weaver v. City & Cty. of San Francisco, No. 14-cv-03654-LB, 2016 WL 913372, at *8 (N.D. Cal.
6 Mar. 10, 2016) (citing Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)); see also Jackson
7 v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (“[A] plaintiff’s showing of nothing more than a
8 difference of medical opinion as to the need to pursue one course of treatment over another was
9 insufficient, as a matter of law, to establish deliberate indifference”) (internal quotation marks
10 omitted).
11 Plaintiff also argues that Defendant Conway’s failure to inform the medical staff that he
12 needed his heart medication was also objectively unreasonable. However, as Defendants note,
13 Plaintiff does not point to any evidence showing that Defendant Conway was aware of Plaintiff’s
14 medical history, or that Plaintiff clearly stated the urgency of his condition. In his own deposition,
15 Plaintiff stated, “I asked him if I could please keep [my shirt] on because I was cold. I hadn’t had
16 my medications yet.” Dkt. No. 70-2, Ex. S at 35:7–35:17. “In order to know of the risk, it is not
17 enough that the [defendant] merely ‘be aware of facts from which the inference could be drawn
18 that a substantial risk of serious harm exists, [ ] he must also draw that inference.’” Gibson v. Cty.
19 of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro, 833
20 F.3d 1060 (quoting Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001)). Additionally, it is
21 undisputed that the medical staff were aware that Plaintiff needed his medication and were
22 attempting to procure it. When Plaintiff requested medication from the medical staff after being
23 released from the safety cell, he was told that they had been trying to reach the VA. Dkt. No. 69-
24 1, Ex. A at 91:7–92:4. These facts, even taking Plaintiff’s version of events as true, do not
25 establish objective unreasonableness by Defendants.
26 As to the causation element, taking Plaintiff’s version of the facts as true, he has not shown
27 that any delay in going to a hospital was the cause of any injury. This failure alone supports the
1 cell overnight and the diagnosis of a brain bleed that he received at the hospital after release to
2 argue causation. Opp. at 20. However, Plaintiff’s arguments simply reiterate his excessive force
3 claim under the deliberate indifference cause of action. Notably, none of these arguments point to
4 evidence that any unreasonable delay by Defendants was the reason for the injury.
5 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to
6 Plaintiff’s deliberate indifference claim and need not address Defendants’ qualified immunity
7 arguments as to this claim.
8 B. Excessive Force
9 Defendants argue that that all Individual Defendants are entitled to qualified immunity for
10 force used during the dress-in. Mot. at 14–15. Defendants also argue that because Defendant
11 Sosa did not use any force against Plaintiff, she is entitled to summary judgment on Plaintiff’s
12 excessive force claim, as well as the relevant state law claims. Id. at 11. Finally, Defendants
13 argue that because Defendant Artificio did not use any force against Plaintiff after the dress-in
14 incident, he is entitled to partial summary judgment on the excessive force claim for the period of
15 time during the safety cell placement. Id. at 12. The Court addresses each argument in turn.
16 i. Qualified Immunity
17 Defendants argue that all Individual Defendants are entitled to qualified immunity for the
18 dress-in incident part of the excessive force claim. The defense of qualified immunity protects
19 “government officials . . . from liability for civil damages insofar as their conduct does not violate
20 clearly established statutory or constitutional rights of which a reasonable person would have
21 known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court considering a claim of
22 qualified immunity makes a two-pronged inquiry: (1) whether the plaintiff has alleged the
23 deprivation of a constitutional right, and (2) whether such right was clearly established at the time
24 of the deprivation. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz,
25 535 U.S. 194, 201 (2001)). The court may exercise its discretion in deciding which prong to
26 address first, in light of the particular circumstances of each case. Id. at 236 (noting that while the
27 Saucier sequence is often appropriate and beneficial, it is no longer mandatory). “[U]nder either
1 judgment,” and must, as in other cases, view the evidence in the light most favorable to the
2 nonmovant. Tolan v. Cotton, 572 U.S. 650, 656 (2014).
3 Plaintiff has alleged that Defendants used excessive force in violation of his Fourth
4 Amendment rights. Such a claim is reviewed under the Fourth Amendment’s “objective
5 reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). To evaluate the
6 reasonableness of Defendants’ actions, the Court “must balance the severity of the intrusion on the
7 individual’s Fourth Amendment rights against the government’s need to use force.” Newmaker v.
8 City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). The Ninth Circuit employs a three-step
9 analysis:
10 First, [the Court] must assess the severity of the intrusion on the
individual’s Fourth Amendment rights by evaluating the type and
11 amount of force inflicted. Even where some force is justified, the
amount actually used may be excessive. Second, [the Court]
12 evaluate[s] the government’s interest in the use of force. Finally, [the
Court] balance[s] the gravity of the intrusion on the individual against
13 the government’s need for that intrusion.
14 Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011) (internal quotations and citations
15 omitted). “A desire to resolve quickly a potentially dangerous situation is not the type of
16 governmental interest that, standing alone, justifies the use of force that may cause serious injury.”
17 Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).
18 Addressing first whether Plaintiff has established a deprivation of a constitutional right,
19 accepting his version of facts as true at this stage, the Court finds that he has. A jury could
20 reasonably conclude that the alleged intrusion on Plaintiff’s Fourth Amendment rights, measured
21 by the “type and amount of force inflicted,” was substantial. Id. at 1279. Taking Plaintiff’s
22 version of the facts as true, Defendant Conway responded with significant physical force to
23 Plaintiff throwing his shirt near Conway’s feet. Plaintiff alleges that Defendant Conway “punched
24 Plaintiff in the face, grabbed him by the back of his head and slammed his face into the concrete
25 wall.” Opp. at 3; Dkt. No. 66-2, Ex. 1 at 44:17–44:20, 57–58. Given that Plaintiff was essentially
26 naked (making it clear that he had no weapon) and contained within the dress-in cell, a jury could
27 find that these facts show excessive force and a violation of Plaintiff’s rights.
1 they perceived as a threat. Mot. at 14. However, “a simple statement by an officer that he fears
2 for his safety or the safety of others is not enough; there must be objective factors to justify such a
3 concern.” Deorle, 272 F.3d at 1281. Defendants point to Plaintiff’s gesturing, raising his hands
4 while approaching Defendant Conway, and yelling as factors that heightened Defendant Conway’s
5 perception of Plaintiff as a threat. Mot. at 14–15. The video of the incident puts some of
6 Defendants’ characterizations into question, see Dkt. 69-7, Ex. G at 3:58-6:06, but even taking
7 them at face value, Plaintiff’s circumstances—being contained in a dress-in cell within a police
8 station with no weapon—could lead a jury to the conclusion that the amount of force used was
9 excessive. Accordingly, when balancing the nature of the intrusion against Defendants’ asserted
10 need for that intrusion, the Court finds that taking Plaintiff’s version of the facts as true, he has
11 shown the deprivation of a constitutional right.
12 Under the second prong of the qualified immunity inquiry, “[a]n officer ‘cannot be said to
13 have violated a clearly established right unless the right’s contours were sufficiently definite that
14 any reasonable official in [his] shoes would have understood that he was violating it.’” City &
15 Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (quoting Plumhoff v.
16 Rickard, 572 U.S. 765, 778 (2014)). While this does not “require a case directly on point, [ ]
17 existing precedent must have placed the statutory or constitutional question beyond debate.”
18 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Plaintiff here alleges that Defendant Conway’s
19 forceful response to Plaintiff’s tossing his shirt towards Defendant Conway’s feet constituted an
20 “unprovoked and unjustified” attack, contrary to clearly established law. Opp. at 13. Plaintiff
21 cites to Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991), and Lolli v. Cty. of Orange, 351
22 F.3d 410, 421–22 (9th Cir. 2003), in arguing that existing precedent clearly established that the
23 actions taken in the dress-in cell violated Plaintiff’s constitutional rights. In Felix, the defendant
24 officer threw a handcuffed plaintiff inmate across a hallway for disagreeing with defendant
25 officer’s characterization of an incident. 939 F.3d at 700–01. In Lolli, plaintiff was being held in
26 a holding cell when he asked defendant officers if he could receive some food due to his diabetic
27 condition. 351 F.3d at 416. In response, plaintiff alleged that defendant officers pulled him to the
1 by plaintiffs, as opposed to actions, which is distinct from the facts presented here. The
2 surveillance video shows Plaintiff’s possible agitation while approaching and then throwing a shirt
3 towards Defendant Conway. See Dkt. 69-7, Ex. G at 3:58-6:06. While this distinction may seem
4 narrow, the qualified immunity standard is exacting, “protect[ing] ‘all but the plainly incompetent
5 or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. at 743 (quoting Malley v.
6 Briggs, 475 U.S. 335, 335 (1986)). Plaintiff’s cited cases do not support the proposition that
7 Defendants violated law that was clearly established at the time of the incident, and the Court has
8 not found any. Whether this result (which the Court believes to be compelled by controlling
9 authority) is just is a question that may be clarified soon by the Supreme Court. See Jay
10 Schweikert, Supreme Court Will Soon Decide Whether To Reconsider Qualified Immunity, CATO
11 INSTITUTE (Apr. 28, 2020, 4:26 PM), https://www.cato.org/blog/may-15th-supreme-court-will-
12 finally-decide-whether-hear-cases-calling-abolition-qualified.
13 Accordingly, the Court holds that Defendants are entitled to qualified immunity and their
14 motion for partial summary judgment as to the dress-in portion of the excessive force claim is
15 GRANTED.
16 ii. Defendant Sosa
17 “In order for a person acting under color of state law to be liable under section 1983 there
18 must be a showing of personal participation in the alleged rights deprivation.” Jones v. Williams,
19 297 F.3d 930, 934 (9th Cir. 2002). An officer must be an “integral participant” in the unlawful
20 conduct, not “a mere bystander.” Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). This
21 requires “some fundamental involvement in the conduct that allegedly caused the violation.”
22 Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007). Plaintiff alleges only that he
23 remembers a female deputy laughing at the door. Dkt. No. 66-2, Ex. 1 at 55:7–55:13. Plaintiff
24 does not allege that Defendant Sosa touched him or otherwise participated in the incidents.
25 Defendants argue that these allegations are insufficient to show that Defendant Sosa was
26 an integral participant in the excessive force allegations. In response, Plaintiff argues that under
27 Boyd v. Benton Cty., 374 F.3d 773, 780 (9th Cir. 2004), officers need not “directly engage in the
1 significantly different from the facts alleged against Defendant Sosa. In Boyd, all officers were
2 present for the execution of a search warrant and all were aware of the decision to use a flash-bang
3 grenade without considering less-than-lethal alternatives. 374 F.3d at 780; see also Melear v.
4 Spears, 862 F.2d 1177, 1186 (5th Cir. 1989). Here, all officers were present because the incident
5 occurred at the jail, not because they were all aware of the circumstances surrounding Plaintiff’s
6 arrest or the incident that occurred in the dress-in area. Plaintiff cites no facts connecting
7 Defendant Sosa to the incident beyond her mere presence at the jail. The Court finds this
8 insufficient to create any genuine issue of fact as to integral participation by Defendant Sosa, and
9 accordingly GRANTS Defendant’s motion for summary judgment as to the excessive force claim
10 against her. For the same reasons, the Court also GRANTS Defendant’s motion for summary
11 judgment as to the state law claims (battery, Bane Act, and negligence) against Defendant Sosa.
12 iii. Defendant Artificio
13 Defendants also argue that because Plaintiff admits that Defendant Artificio did not
14 participate in the escort or placement of Plaintiff in the safety cell, he is entitled to partial
15 summary judgment as to that part of the excessive force claim and related state law claims. Mot.
16 at 12. The Court agrees. Plaintiff cites no facts connecting Defendant Artificio with any actions
17 beyond the dress-in incident, and as detailed above the Court granted partial summary judgment
18 regarding that incident on qualified immunity grounds.2 Since no disputed facts of excessive force
19 remain against Defendant Artificio, the Court GRANTS Defendant’s motion for summary
20 judgment as to the excessive force claim and related state law claims against Defendant Artificio.
21 //
22
23
2 Plaintiff cites to Lawson v. City of Seattle, No. 12-cv-1994-MAT, 2014 WL 1593350, at *10
(W.D. Wash. Apr. 21, 2014), and Hall v. Cty. of Whatcom, No. 09-cv-1545-RSL, 2011 WL
24
6179209 (W.D. Wash. Dec. 13, 2011), in support of his argument that it would be impracticable to
parse the excessive force claim at this stage in the proceeding. Due to the specific facts presented
25
here and the Court’s holding as to qualified immunity for the dress-in incident, the Court finds
these cases unpersuasive. In Lawson, the court declined to parse the excessive force claim to
26
separate “the pointing of the firearm, routine handcuffing techniques, and the alleged push of
[plaintiff’s] face into the ground, and . . . the kicking of [plaintiff].” 2014 WL 1593350, at *10.
27
Here, it is much easier to temporally separate the dress-in incident from the escort and safety-cell
C. Bane Act
1
2 Defendants also seek summary judgment on Plaintiff’s Bane Act claim. The Bane Act
3 “protects individuals from conduct aimed at interfering with rights that are secured by federal or
4 state law, where the interference is carried out by threats, intimidation, or coercion.” Reese v. Cty.
5 of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (internal quotation marks omitted).
6 California Civil Code Section 52.1 “provides [the] cause of action for violations of a plaintiff’s
7 state or federal civil rights committed by threats, intimidation, or coercion.” Id. (internal quotation
8 marks omitted). “Claims under section 52.1 may be brought against public officials who are
9 alleged to interfere with protected rights, and qualified immunity is not available for those claims.”
10 Id. at 1040–41.
11 To establish a Bane Act claim, plaintiff must ultimately prove “both (1) a violation of a
12 ‘state or federal constitutional or legal right’; and (2) that the violation was achieved through
13 ‘threats, intimidation, or coercion.’” Inman v. Anderson, 294 F. Supp. 3d 907, 928–29 (N.D. Cal.
14 2018) (quoting Allen v. City of Sacramento, 183 Cal. Rptr. 3d 654, 676 (Ct. App. 2015)).
15 Although the Ninth Circuit held that “the Bane Act does not require the threat, intimidation or
16 coercion element of the claim to be transactionally independent from the constitutional violation
17 alleged,” the Bane Act does require “a specific intent to violate an [individual’s constitutional]
18 right . . . .” Reese, 888 F.3d at 1043 (internal quotation marks omitted). Thus, evidence of an
19 unreasonable use of force alone does not satisfy the Bane Act’s intent requirement. Instead, a
20 plaintiff must show the officer “intended not only the force, but its unreasonableness, its character
21 as ‘more than necessary under the circumstances.’” Id. at 1045 (quoting United States v. Reese, 2
22 F.3d 870, 885 (9th Cir. 1993)).
23 Because Plaintiff must allege specific intent as to each Defendant, the Court GRANTS
24 summary judgment as to Defendants Park, and Vigil (having previously granted summary
25 judgment as to Defendants Sosa and Artificio). Plaintiff provides no specific facts to show any
26 intent as to these Defendants. Instead, Plaintiff simply points to their participation after becoming
27 aware of an incident occurring at dress-in. See Opp. 18–19. This is insufficient. However, the
1 of facts as true at this stage, a jury could reasonably find that Defendant Conway harbored the
2 specific intent to use unreasonable force against Plaintiff when he “became enraged” at Plaintiff
3 and continued to exhibit force by placing “his knee on [Plaintiff’s] back, beating [Plaintiff’s] ribs,”
4 in the safety cell. Dkt. No. 66-5, Ex. 5 at 251-252:19. Dkt. No. 30 ¶ 19.
5 IV. MOTIONS TO SEAL
6 Courts generally apply a “compelling reasons” standard when considering motions to seal
7 documents. Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Kamakana
8 v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). “This standard derives from the
9 common law right ‘to inspect and copy public records and documents, including judicial records
10 and documents.’” Id. (quoting Kamakana, 447 F.3d at 1178). “[A] strong presumption in favor of
11 access is the starting point.” Kamakana, 447 F.3d at 1178 (quotations omitted). To overcome this
12 strong presumption, the party seeking to seal a judicial record attached to a dispositive motion
13 must “articulate compelling reasons supported by specific factual findings that outweigh the
14 general history of access and the public policies favoring disclosure, such as the public interest in
15 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotations
16 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in
17 disclosure and justify sealing court records exist when such ‘court files might have become a
18 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public
19 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v.
20 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). “The mere fact that the production of records
21 may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not,
22 without more, compel the court to seal its records.” Id.
23 The Court must “balance[] the competing interests of the public and the party who seeks to
24 keep certain judicial records secret. After considering these interests, if the court decides to seal
25 certain judicial records, it must base its decision on a compelling reason and articulate the factual
26 basis for its ruling, without relying on hypothesis or conjecture.” Id. Civil Local Rule 79-5
27 supplements the compelling reasons standard set forth in Kamakana: the party seeking to file a
1 privileged, protectable as a trade secret or otherwise entitled to protection under the law . . . The
2 request must be narrowly tailored to seek sealing only of sealable material.” Civil L.R. 79-5(b).
3 A. Defendant’s Motion to File Under Seal
4 Defendants seek to file under seal six exhibits attached to their motion for summary
5 judgment, Exhibits E, F, G, H, I, and Q to the Declaration of Renee E. Rosenblit (“Rosenblit
6 Declaration”). Dkt. No. 57. Because Defendants move to file exhibits attached to a dispositive
7 motion, the Court will apply the compelling reasons standard.
8 Exhibit E is a copy of the Red Book entry, presumably a sign-in log book for the jail, dated
9 June 5, 2018, which Defendants seek to file under seal because it contains “official information,”
10 including “the names and information regarding non-defendant deputies and staff and other
11 inmates, as well as security procedures.” Dkt. No. 57-1 ¶ 4. While Defendants cite to California
12 Evidence Code Section 1040 and allege that the reports are privileged, they must do more than
13 make a conclusory assertion that the documents implicate privacy interests and are privileged. See
14 Kamakana, 447 F.3d at 1186 (affirming denial of motion to seal documents that city asserted were
15 subject to “the law enforcement privilege, the official information privilege, privacy interests, and
16 embarrassment,” because “none of these had been asserted with sufficient particularity” as to how
17 disclosure would inflict any specific prejudice or harm). Federal common law recognizes a
18 qualified privilege for official information, but this privilege is neither automatic nor absolute, and
19 courts must weigh the “potential benefits of disclosure against the potential disadvantages.”
20 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). The balancing test “is
21 moderately pre-weighted in favor of disclosure.” Kelly v. San Jose, 114 F.R.D. 653, 661 (N.D.
22 Cal. 1987).
23 Balancing the interests here, the Court finds that benefits of disclosure outweigh the
24 disadvantages and DENIES Defendant’s motion to seal Exhibit E. The exhibit includes highly
25 relevant documentation regarding the dress-in incident that was created immediately after the
26 incident. The Court recognizes that the exhibit also includes the names of other inmates and
27 officers, but as Defendants themselves suggest, they can file an amended motion to file under seal
1 previously sought to seal the same document and their request was granted does not change the
2 Court’s view. See Dkt. No. 50, 63. That determination was made under a lower “good cause”
3 standard since it was attached to a non-dispositive motion, unlike the “compelling reasons”
4 standard that Defendants must meet for this summary judgment motion. See Kamakana, 447 F.3d
5 at 1179–80.
6 Exhibits F, G, and H are copies of jail surveillance video from County Jail 1 on June 5,
7 2018. Defendants seek to seal the information as the videos “show the layout of the jail, entry and
8 exit points, angles of the cameras, and other securities [sic] concerns.” Dkt. No. 57-1 ¶ 6.
9 Analyzing this information again under the same qualified privilege analysis, the Court find that
10 while the benefits of disclosure are significant, the disadvantages are substantially higher. These
11 security concerns, in addition to privacy concerns of third parties and Plaintiff, who appears naked
12 in two of the videos, outweigh the benefit of public disclosure at this stage in the case.
13 Accordingly, the Court GRANTS Defendant’s motion to seal Exhibits F, G, and H.
14 Exhibit I is Plaintiff’s jail medical records from June 5–6, 2018. Dkt. No. 57-1 ¶ 7.
15 Defendants argue that the “request to seal is based on plaintiff’s right to privacy and federal and
16 state laws protecting the confidentiality of an individual’s personal health information.” Id. The
17 Court agrees that health records properly meet the compelling reasons standard. See San Ramon
18 Reg’l Med. Ctr., Inc. v. Principal Life Ins. Co., No. 10–cv–02258–SBA, 2011 WL 89931, at *1
19 n.1 (N.D. Cal. Jan. 10, 2011) (finding that confidentiality of medical records under the Health
20 Insurance Portability and Accountability Act of 1996 outweighed Kamakana presumption in favor
21 of public access to court records). The Court GRANTS Defendant’s motion to seal Exhibit I.
22 Exhibit Q contains Individual Defendants’ training records, which are part of their
23 personnel files. While Defendants cite numerous statutes and constitutional provisions to allege
24 that the reports are protected by “official information” privilege, they offer no explanation of why
25 such a privilege should apply. The Court finds that Defendants have not carried their burden of
26 articulating “compelling reasons supported by specific factual findings that outweigh the general
27 history of access and the public policies favoring disclosure” and DENIES Defendant’s request to
B. Plaintiff’s Motion to File Under Seal
1
2 Plaintiff seeks to file under seal Exhibits 1–10 to the Declaration of Patrick Buelna
3 (“Buelna Declaration”). Dkt. No. 65.
4 Exhibits 1, 2, and 3 are also jail surveillance videos from County Jail 1 taken on June 5,
5 2018. While the only basis Plaintiff proffers for sealing the exhibits is that “Defendants
6 designated the exhibits as ‘CONFIDENTIAL,’” which is typically insufficient to meet the
7 compelling reasons standard, the exhibits are the same as Exhibits F, G, and H that Defendants
8 seek to file under seal. For the same reasons noted above, the Court GRANTS Plaintiff’s motion
9 to file under seal Exhibits 1, 2, and 3. Similarly, Plaintiff’s Exhibit 5 is the Red Book entry from
10 June 5, 2018 that Defendants seek to seal as Exhibit E, discussed above. For the same reasons, the
11 Court DENIES Plaintiff’s motion to file under seal Exhibit 5, though Plaintiff may similarly file
12 an amended motion to seal a partially redacted version of the document.
13 Exhibit 4 is a copy of the Safety Cell Placement Form, while Exhibits 6, 7, 8, and 9 are
14 recorded Internal Affairs interviews of Defendants Artificio, Sosa, Park, and Vigil. Dkt. No. 65-1
15 at 2. Again, the only basis that Plaintiff proffers for sealing the exhibits is that “Defendants
16 designated the exhibits as ‘CONFIDENTIAL.’” Designation as “Confidential” is not sufficient, as
17 that is merely the parties’ initial designation of confidentiality to establish coverage under the
18 stipulated protective order. See Verinata Health, Inc. v. Ariosa Diagnostics, Inc., No. 12-cv-
19 05501-SI, 2015 WL 5117083, at *5 (N.D. Cal. Aug. 31, 2015) (“But good cause ‘cannot be
20 established simply by showing that the document is subject to a protective order or by stating in
21 general terms that the material is considered to be confidential’”) (quoting Bain v. AstraZeneca
22 LP, No. 09-cv-4147, 2011 WL 482767, at *1 (N.D. Cal. Feb. 7, 2011)). Thus, Plaintiff’s motion
23 does not comply with Civil Local Rule 79- 5(d)(1)(A). In addition, Defendants did not file a
24 declaration establishing that any of these exhibits are sealable. As the designating party for the
25 materials, Defendants did not comply with Civil Local Rule 79-5(e)(1), because they did not file a
26 Declaration within four days of Plaintiff’s motion. See Civ. L.R. 79-5(e)(1). Accordingly, the
27 Court DENIES Plaintiff’s motion to seal Exhibits 4, 6–9.
V. CONCLUSION
1
2 The Court finds that Defendants are entitled to judgment as a matter of law on Plaintiff’s
3 deliberate indifference claim, and therefore GRANTS Defendants’ motion for summary judgment
4 on Plaintiff’s Fourteenth Amendment claim. The Court also GRANTS Defendants’ unopposed
5
motion for summary judgment on Plaintiff’s Monell claim. The Court further finds that
6
Defendants are entitled to qualified immunity as a matter of law for the dress-in incident and
7
therefore GRANTS Defendants’ motion for partial summary judgment as to the Fourth
8
Amendment claim. The Court also GRANTS Defendants’ motion for summary judgment as to
9
10 Defendants Sosa and Artificio on Plaintiff’s Fourth Amendment claim, battery, negligence, and
11 Bane Act claims. Finally, the Court DENIES IN PART AND GRANTS IN PART Defendant’s
12 motion for summary judgment as to Plaintiff’s Bane Act claim: while no genuine dispute as to any
13
material facts remains as to Defendants Artificio, Park, and Vigil, a dispute remains as to
14
Defendant Conway.
15
16 The Court also GRANTS IN PART AND DENIES IN PART Defendants’ and Plaintiff’s
17 administrative motions to file under seal. Dkt. Nos. 57, 65. The Court DIRECTS Defendants to
18 file, within five days of the date of this order, public versions of Exhibit E and Q to the Rosenblit
19 Declaration or an amended motion to seal that narrowly tailors the sealing request as explained
20 above. See Dkt. No. 57-1. Pursuant to Civil Local Rule 79-5(f)(1), documents filed under seal as
21 to which the administrative motions are granted will remain under seal. The Court also
22 DIRECTS Plaintiff to file, within five days of the date of this order, public versions of Exhibits 4,
23 5, 6, 7, 8, and 9 to the Buelna Declaration or an amended motion to seal that narrowly tailors the
24 sealing request as explained above. See Dkt. No. 65-1.
25 //
26 //
27 //
1 Pursuant to General Order 72-3, the August 17, 2020 trial date in this matter is
2 || VACATED. The Court sets a telephonic case management conference for June 9, 2020 at 2:00
3 p.m. to discuss the schedule and plan for resolving this matter. All counsel shall use the following
4 || dial-in information to access the call: Dial-In: 888-808-6929/Passcode: 6064255. For call clarity,
5 parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties
6 shall use landlines. The parties are further advised to ensure that the Court can hear and
7 understand them clearly before speaking at length. The parties do not need to file any further joint
8 statement before the telephonic conference.
9
10 IT IS SO ORDERED.
11 Dated: 5/29/2020
2 .
HAYWOOD S. GILLIAM, JR.
13 United States District Judge
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