Luckert v. Gutierrez

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 MICHAEL L LUCKERT, Case No. 19-cv-08204-PJH

8 Plaintiff,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

10 O. SMITH, et al.,

Re: Dkt. No. 70

Defendants.

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13 Plaintiff, a former county detainee, proceeds with a pro se civil rights complaint

14 under 42 U.S.C. § 1983. He alleges that at the public library, Patrol Officer Ochoa and

15 Deputies Smith, Gutierrez, Brule and Espiritu used excessive force in arresting him, and

16 Gutierrez and Deputy Mendoza used excessive force while placing him in a cell at the

17 county jail.1 Defendants filed a motion for summary judgment on the merits. Docket No.

18 70. Plaintiff filed an opposition (Docket Nos. 77, 81, 85) and defendants filed a reply

19 (Docket No. 87). For the reasons set forth below, the motion for summary judgment is

20 granted in part and denied in part.

21 MOTION FOR SUMMARY JUDGMENT

22 Legal Standard

23 Summary judgment is proper where the pleadings, discovery and affidavits show

24 that there is “no genuine dispute as to any material fact and the movant is entitled to

25 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may

26 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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1 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

2 reasonable jury to return a verdict for the nonmoving party. Id.

3 The moving party for summary judgment bears the initial burden of identifying

4 those portions of the pleadings, discovery and affidavits which demonstrate the absence

5 of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

6 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When

7 the moving party has met this burden of production, the nonmoving party must go beyond

8 the pleadings and, by its own affidavits or discovery, set forth specific facts showing that

9 there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough

10 evidence to show a genuine issue of material fact, the moving party wins. Id.

11 Facts

12 A review of the record indicates that the following facts are undisputed unless

13 otherwise noted:

14 On February 26, 2019, at approximately 4:15 p.m., defendant Library Patrol Officer

15 Ochoa was on duty at the San Francisco Main Library and received a call that a library

16 staff member had been physically assaulted on the sixth floor. Motion for Summary

17 Judgment (“MSJ”) Ochoa Decl. ¶ 3. Ochoa responded to the sixth floor, and library staff

18 identified plaintiff as the assailant, who was still in the area. Id. at ¶ 4. Ochoa

19 approached plaintiff, who was visibly agitated and acting erratically and took up an

20 aggressive stance. Id. at ¶¶ 4, 5. Ochoa kept his distance and attempted to speak with

21 plaintiff about the assault. Id. at ¶ 5.

22 After attempting to speak with plaintiff, Ochoa radioed for assistance to the San

23 Francisco deputy sheriffs who were assigned to the library. Id. Defendant Deputy Smith,

24 who was in uniform, arrived, identified himself as a sheriff’s deputy and tried to speak

25 with plaintiff. Smith Decl. ¶¶ 3-5. Smith observed that plaintiff was still visibly agitated.

26 Id. at ¶ 4.

27 After trying to speak with plaintiff, Smith, with Ochoa’s assistance, handcuffed

1 Decl. ¶¶ 6-7. Smith and Ochoa applied only enough pressure to maintain control of

2 plaintiff, who was pulling away and flailing his arms. Smith Decl. ¶ 5; Ochoa Decl. ¶ 7.

3 Once plaintiff was handcuffed, Smith told plaintiff that he was under arrest for willfully

4 resisting, delaying or obstructing a peace officer. Smith Decl. ¶ 5. The handcuffing by

5 Smith and Ochoa did not cause plaintiff any pain. MSJ, Wang Decl. Ex. A, Luckert

6 Deposition at 61.

7 Smith then escorted plaintiff from the sixth floor to the security office on the first

8 floor. Id. at ¶ 6. Smith kept his hands on plaintiff but only applied enough pressure to be

9 able to detect any resistance and maintain control because plaintiff was verbally hostile

10 and aggressive. Id. Smith radioed his partner, defendant Deputy Gutierrez, and

11 informed him about the incident and asked him to meet him at the security office. Id.

12 Defendant Deputies Brule and Espiritu were nearby and responded to the library. Brule

13 Decl. ¶ 2.

14 Gutierrez, Brule and Espiritu met Smith, Ochoa and plaintiff at the security office.

15 Brule Decl. ¶ 3; Gutierrez Decl. ¶ 3. Prior to searching plaintiff, Gutierrez asked him if he

16 had anything on his person that could harm Gutierrez. Gutierrez Decl. ¶ 4. Plaintiff did

17 not respond but was verbally hostile and aggressive. Id. Gutierrez applied a bent wrist-

18 lock on plaintiff with one hand and pat searched with the other. Id. ¶ 5 Gutierrez applied

19 minimal pressure and found a knife concealed in plaintiff’s pocket. Id. at ¶¶ 4-5. Nobody

20 made any physical contact with plaintiff in the security office other than when Gutierrez

21 searched him. Id. at ¶ 5; Smith Decl. ¶ 7; Espiritu Decl. ¶ 3; Brule Decl. ¶ 3; Ochoa Decl.

22 ¶ 9.

23 Plaintiff disputes Gutierrez’s statements and contends that he was not resisting

24 when Gutierrez bent his wrist backwards causing extreme pain and injuries. MSJ, Wang

25 Decl. Ex. A, Luckert Deposition at 61; Docket No. 77 at 7, 10.

26 Gutierrez, Espiritu and Brule escorted plaintiff to the transport van outside of the

27 library and secured him in the back. Gutierrez Decl. ¶ 6; Brule Decl. ¶ 4. Gutierrez had

1 Gutierrez Decl. ¶ 6. Brule and Espiritu did not make any physical contact with plaintiff

2 during his escort to the van. MSJ, Wang Decl. Ex. A, Luckert Deposition at 81.

3 Defendant Deputy Mendoza arrived and drove plaintiff to San Francisco County

4 Jail with Gutierrez. Gutierrez Decl. ¶ 7; Mendoza Decl. ¶ 3. At the jail, Gutierrez again

5 searched plaintiff by applying a rear wrist-lock on plaintiff with minimal pressure.

6 Gutierrez Decl. ¶ 9.

7 During the booking process at the jail, plaintiff refused to answer questions from

8 Jail Medical Services, including refusing to answer whether he was suicidal. Gutierrez

9 Decl. ¶ 10. Plaintiff disputes this and states that no one identified themselves as medical

10 professionals to treat his injuries. Docket No. 77 at 4. At times during the booking

11 process, Mendoza applied a control-hold to gain plaintiff’s compliance with fingerprinting,

12 photographing and medical triage. Mendoza Decl. ¶ 5. Minimal pressure was applied.

13 Id.

14 Plaintiff was then placed in a safety cell for being combative and presenting an

15 imminent danger to himself and others. Id. at ¶ 6. Mendoza placed plaintiff in the safety

16 cell by placing his hands on plaintiff’s shoulder and wrist, applying only enough pressure

17 to maintain control and detect any resistance. Id. Plaintiff was ordered to his stomach so

18 that his handcuffs could be removed, and his clothes were removed because he had

19 soiled them. Id.; Gutierrez Decl. ¶ 12. Other deputies removed plaintiff’s handcuffs and

20 clothes while Mendoza held plaintiff’s shoulder and arms using only enough pressure to

21 detect any resistance and keep plaintiff from rolling over. Mendoza Decl. ¶ 6. Gutierrez

22 states he did not make physical contact with plaintiff while in the safety cell. Gutierrez

23 Decl. ¶ 11.

24 Plaintiff disputes this and states that he was not resisting. According to plaintiff,

25 Gutierrez was making contact with him in the cell, bending back his wrist, hand and

26 fingers, causing extreme pain and injuries. Docket No. 77 at 7, 10. Medical reports

27 indicated swelling and a punctate hyperdensity in the distal left thumb and excoriations

1 ANALYSIS

2 Legal Standard

3 An allegation of the use of excessive force by a law enforcement officer in

4 effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City

5 of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham

6 v. Connor, 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep’t, 885 F.3d 639,

7 641-42 (9th Cir. 2018) (pro se allegations that police officers “beat the crap out of” plaintiff

8 and caused him severe injury enough to support a legally cognizable claim under §

9 1983). Excessive force claims which arise in the context of an arrest or investigatory stop

10 of a free citizen are analyzed under the Fourth Amendment reasonableness standard.

11 See Graham v. Connor, 490 U.S. 386, 394-95 (1989).

12 “To determine whether officers used excessive force during an arrest, courts

13 balance ‘the nature and quality of the intrusion on the individual’s Fourth Amendment

14 interests against the countervailing governmental interests at stake.’” Luchtel v.

15 Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396). In the

16 Ninth Circuit, evaluation of an excessive force claim under Graham involves three steps:

17 (1) assessment of the severity of the intrusion on Fourth Amendment rights by evaluating

18 the type and amount of force used; (2) evaluation of the government’s interest in the use

19 of force; and (3) balancing the gravity of the intrusion on the individual with the

20 government’s need for the intrusion. Glenn v. Washington Cnty, 673 F.3d 864, 872 (9th

21 Cir. 2011). “The operative question in excessive force cases is ‘whether the totality of the

22 circumstances justifie[s] a particular sort of search or seizure.’” County of Los Angeles v.

23 Mendez, 137 S. Ct. 1539, 1542 (2017) (alteration in original) (quoting Tennessee v.

24 Garner, 471 U.S. 1, 8-9 (1985)).

25 Defendants met their burden in demonstrating the absence of a genuine issue of

26 material fact with respect to the excessive force. The defendants submitted declarations

27 attesting to the minimal force used and stating that it was reasonable in light of the

1 facts showing that there is a genuine issue for trial.

2 Plaintiff’s opposition filings mostly focus on his medical reports and generally state

3 that he was not resisting and was subject to excessive force by defendants. He presents

4 very few arguments regarding the actions of the individual defendants with respect to the

5 legal standards above, and some of his allegations and evidence are contradictory;

6 nevertheless, the court has liberally construed his filings in light of his status as a pro se

7 formerly incarcerated party. See Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)

8 (“We have, therefore, held consistently that courts should construe liberally motion

9 papers and pleadings filed by pro se inmates and should avoid applying summary

10 judgment rules strictly.”). However, while Ponder relieves pro se inmates from strict

11 compliance with summary judgment rules, it does not entirely release them from any

12 obligation to identify or submit at least some competent evidence in support of their claim.

13 Soto v. Sweetman, 882 F.3d 865, 873 (9th Cir. 2018) (plaintiff not entitled to equitable

14 tolling because he failed to allege in his complaint that he could not proceed with

15 grievance process until after an investigation was completed; failed to submit any

16 declaration, affidavit or other competent evidence in his opposition to summary judgment;

17 and failed to raise the issue until responding to the district court’s show cause order).

18 Moreover, it is not the task of the district court to scour the record in search of a genuine

19 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The

20 nonmoving party has the burden of identifying with reasonable particularity the evidence

21 that precludes summary judgment. Id. If the nonmoving party fails to do so, the district

22 court may properly grant summary judgment in favor of the moving party. See id.; see,

23 e.g., Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001) (even if

24 there is evidence in the court file which creates a genuine issue of material fact, a district

25 court may grant summary judgment if the opposing papers do not include or conveniently

26 refer to that evidence).

27 Plaintiff presents no evidence that Brule or Espiritu used any force against him.

1 handcuffing did not cause him any pain. Summary judgment is granted for these

2 defendants.

3 Other than general allegations, plaintiff presents no evidence that Smith or

4 Mendoza used excessive force. Simply listing the defendants’ names and stating that

5 they used excessive force without providing any specific details regarding the type of

6 force used and for which incident, is insufficient. Smith and Mendoza submitted

7 declarations describing their various interactions with plaintiff and the amount of force

8 they used, which they argued was minimal. Plaintiff fails to even attempt to present

9 evidence in response. Summary judgment is granted for these defendants. The court

10 notes that while plaintiff presented specific allegations against Mendoza in the operative

11 amended complaint, he states that it was a mistake. Docket No. 77 at 9-10. Plaintiff

12 states in the opposition that he confused Mendoza and Gutierrez and the allegations

13 against each defendant should be switched. Id.

14 Plaintiff only presents specific allegations in his opposition to summary judgment

15 regarding Gutierrez. He states that he was not resisting in the library security office when

16 Gutierrez bent his wrist backwards, causing extreme pain and injuries. Similarly, plaintiff

17 states that while in the county jail Gutierrez again bent his wrist as well as his hand and

18 fingers, causing injuries that are demonstrated in his medical records. Plaintiff has met

19 his burden in presenting specific facts showing that there is a genuine issue for trial for

20 Gutierrez.

21 Unreasonable force claims are generally questions of fact for a jury. See

22 Headwaters Forest Defense v. Cnty. of Humboldt, 240 F.3d at 1185, 1198 (9th Cir. 2000)

23 overruled on other grounds; Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995) (citing

24 Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). Although excessive force cases

25 can be decided as a matter of law, they rarely are because the Fourth Amendment test

26 for reasonableness is inherently fact-specific. See Headwaters, 240 F.3d at 1198; see,

27 e.g., Estate of Diaz v. City of Anaheim, 840 F.3d 592, 605-06 (9th Cir. 2016) (although

1 matter of law inappropriate because defendants also presented substantial evidence to

2 support their position; jury entitled to choose between both positions based on their

3 weighing of the evidence and witnesses’ credibility).

4 In this case there are disputed facts about the nature of the force used in bending

5 plaintiff’s wrist, hand and fingers and the injuries suffered by plaintiff; specifically, there is

6 a contest between plaintiff’s version of the facts and Gutierrez’s explanation. If plaintiff’s

7 facts are true and Gutierrez forcefully bent plaintiff’s wrist, hand and fingers on two

8 separate occasions while plaintiff stated he was in pain and while plaintiff was not

9 resisting, and this force caused plaintiff’s injuries, then a jury could conclude there was a

10 constitutional violation.

11 A jury could make the same conclusion if plaintiff was already handcuffed during

12 the use of force against his wrist, hands and fingers. The Ninth Circuit has long

13 recognized that abusive handcuffing, which involves the wrist, hands and fingers, may

14 constitute a Fourth Amendment violation. See, e.g., Palmer v. Sanderson, 9 F.3d 1433,

15 1436 (9th Cir.1993) (denying qualified immunity and holding that the “abusive application

16 of handcuffs” causing pain and bruising was unconstitutional); see also Luchtel v.

17 Hagemann, 623 F.3d 975, 989 (9th Cir. 2010) (Beezer, J., concurring in part and

18 dissenting in part) (noting that “the right to be free from excessive force in handcuffing is

19 clearly established in our precedent”).

20 For all these reasons, summary judgment is denied for Gutierrez.

21 Qualified Immunity

22 The defense of qualified immunity protects “government officials . . . from liability

23 for civil damages insofar as their conduct does not violate clearly established statutory or

24 constitutional rights of which a reasonable person would have known.” Harlow v.

25 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the

26 plainly incompetent or those who knowingly violate the law.’” Saucier v. Katz, 533 U.S.

27 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants can

1 any given situation. Id. at 205. A court considering a claim of qualified immunity must

2 determine whether the plaintiff has alleged the deprivation of an actual constitutional right

3 and whether such right was clearly established, such that it would be clear to a

4 reasonable officer that his conduct was unlawful in the situation he confronted. See

5 Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the two-part

6 test that required determining a deprivation first and then deciding whether such right was

7 clearly established, as required by Saucier). The court may exercise its discretion in

8 deciding which prong to address first, in light of the particular circumstances of each

9 case. Pearson, 555 U.S. at 236.

10 The court already found that, looking at the evidence in the light most favorable to

11 plaintiff, he states a claim of excessive force. Accordingly, the court proceeds to the next

12 step, which requires the determination of whether, at the time of the incident, it would

13 have been clear to a reasonable official that his conduct was unlawful in the situation he

14 confronted. See Saucier, 533 U.S. at 201. In deciding this, the court must identify the

15 “contours of the right” that plaintiff alleges defendant violated. The Supreme Court has

16 made clear that the right an official is alleged to have violated must have been “clearly

17 established in a particularized context.” Conner v. Heiman, 672 F.3d 1126, 1132 (9th Cir.

18 2012) (citing Saucier, 533 U.S. at 202).

19 As early as 1993, in Palmer, the Ninth Circuit rejected an officer’s contention that

20 he was entitled to qualified immunity against a claim of tight handcuffs because the

21 officer “has presented no evidence that would justify handcuffing [plaintiff] so tightly that

22 he suffered pain and bruises, or to justify his refusal to loosen the handcuffs after

23 [plaintiff] complained of the pain.” The Ninth Circuit held in that case: “no reasonable

24 officer could believe that the abusive application of handcuffs was constitutional.” Palmer,

25 9 F.3d at 1436.

26 Moreover, it has long been clearly established that the reasonableness of the

27 amount of force applied during an arrest must be balanced against the need for force.

1 not actively resisting or attempting to evade arrest, does not pose any immediate threat

2 to the safety of the officers or others, and is being arrested for a minor and nonviolent

3 offense, it would have been clear to a reasonable officer that no need for force existed.

4 See, e.g., Bryan v. MacPherson, 630 F.3d 805 828-29 (9th Cir. 2010) (arrest for a traffic

5 infraction “militates against finding the force used to effect an arrest reasonable where

6 the suspect was also nonviolent and posed no threat to the safety of the officers or

7 others” (internal quotation marks omitted)).

8 Because it has been clearly established prior to this incident that the force used in

9 this incident would have been excessive, Gutierrez is not entitled to qualified immunity.

10 REFERRAL TO PRO SE PRISONER MEDIATION PROGRAM

11 This case appears to be a good candidate for the court’s mediation program.

12 Good cause appearing therefore, this case is now referred to Magistrate Judge Illman for

13 mediation or settlement proceedings pursuant to the Pro Se Prisoner Mediation Program.

14 The proceedings will take place within 120 days of the date this order is filed. Magistrate

15 Judge Illman will coordinate a time and date for mediation or settlement proceedings with

16 all interested parties and/or their representatives and, within five days after the

17 conclusion of the proceedings, file with the court a report for the prisoner mediation or

18 settlement proceedings.

19 From time to time, prisoner-plaintiffs have refused to participate in mediation and

20 settlement proceedings. Although the court assumes that will not occur in this case, the

21 court wants to make clear the consequences if it does. Judicial resources are consumed

22 preparing for mediation and settlement conferences, and those resources are wasted

23 when a scheduled conference does not proceed. To avoid that happening, plaintiff is

24 now specifically ordered to attend and participate in the mediation or settlement

25 conference proceedings. He does not have to reach a settlement or other resolution of

26 his claims, but he absolutely must attend and participate in all the mediation or settlement

27 conference proceedings. The conference may be set up so that he will appear in person,

1 Judge Illman chooses.

2 Plaintiff is cautioned that he may be sanctioned for failure to comply with an order

3 to participate in a settlement conference, and such sanctions may include dismissal of

4 part or all of the action. See Fed. R. Civ. P. 16(a), (f), and 41(b). Plaintiff must also

5 timely respond to court orders.

6 CONCLUSION

7 1. For the reasons set forth above, defendants’ motion for summary judgment

8 (Docket No. 70) is GRANTED IN PART AND DENIED IN PART. All defendants are

9 DISMISSED with prejudice except for Gutierrez.

10 2. This action is now referred to Magistrate Judge Illman for mediation or

11 settlement proceedings pursuant to the Pro Se Prisoner Mediation Program. The clerk

12 shall SEND a copy of this order to Magistrate Judge Illman. This case is STAYED until

13 further order from the court.

14 IT IS SO ORDERED.

15 Dated: December 28, 2022

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17 /s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

18 United States District Judge

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