Williamson v. National City

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 TASHA WILLIAMSON, an Case No.: 3:18-cv-02394-WQH-JLB

individual,

12 ORDER

Plaintiff,

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v.

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NATIONAL CITY, a municipal

15 corporation, LUCKY NGUYEN,

an individual, JOHN McGOUCH,

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an individual, and DOES 1-3,

17 inclusive,

18 Defendants.

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HAYES, Judge:

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The matters pending before the Court are the Motion for Summary Judgment or

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Partial Summary Judgment filed by Defendants National City, Lucky Nguyen and John

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McGough (ECF No. 50) and the Motion to Consolidate Cases filed by Plaintiff Tasha

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Williamson (ECF No. 51).

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I. PROCEDURAL BACKGROUND

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On October 18, 2018, Plaintiff Tasha Williamson initiated this action by filing a

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Complaint against Defendant National City and DOE Defendants. (ECF No. 1). On May

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8, 2019, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants National

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1 City, Lucky Nguyen, and John McGouch. (ECF No. 24). Plaintiff alleges that she

2 participated in a demonstration in National City Council chambers on July 24, 2018. See

3 id. at 3. Plaintiff alleges that “[w]hen it came time to remove” Plaintiff, “[h]er hands were

4 [ ] handcuffed behind her back as she sat on the floor” but “the handcuffs were place[d] on

5 extremely tight by [National City] officers.” Id. at 4. Plaintiff alleges that Defendants

6 Nguyen and McGouch removed Plaintiff from National City Council chambers by

7 “dragging her backwards across the floor . . . .” Id. Plaintiff alleges “severe damage to her

8 left shoulder, labrum, and rotator cuff” as a result of the “extremely tight” handcuffs and

9 “dragg[ing] by the wrists and handcuff chain.” Id. at 5. Plaintiff brings the following three

10 causes of action: (1) excessive force in violation of 42 U.S.C. § 1983 against Defendants

11 Nguyen and McGouch; (2) violence because of race in violation of Cal. Civ. Code § 51.7

12 against Defendants National City, Nguyen, and McGouch; and (3) excessive force in

13 violation of Cal. Civ. Code § 52.1 against Defendants National City, Nguyen, and

14 McGouch. See id. at 6-11. Plaintiff seeks general, special, and punitive damages; attorney

15 fees and costs; and “[a]ny further equitable or legal relief that this Court deems just and

16 appropriate.” Id. at 11-12.

17 On June 3, 2019, Defendants National City, Nguyen, and McGouch filed an Answer.

18 (ECF No. 28).

19 On April 24, 2020, Defendants National City, Nguyen, and McGouch filed a Motion

20 for Summary Judgment or Partial Summary Judgment. (ECF No. 50). On the same day,

21 Plaintiff filed a Motion to Consolidate Cases. (ECF No. 51). On June 15, 2020, Defendants

22 National City, Nguyen, and McGouch filed a Response in opposition to Plaintiff’s Motion

23 to Consolidate Cases (ECF No. 51). (ECF No. 56). On the same day, Plaintiff filed a

24 Response in opposition to Defendants’ Motion for Summary Judgment or Partial Summary

25 Judgment (ECF No. 50). (ECF No. 58). On June 22, 2020, Plaintiff filed a Reply to the

26 Motion to Consolidate Cases (ECF No. 51). (ECF No. 60). On the same day, Defendants

27 National City, Nguyen, and McGouch filed a Reply to the Motion for Summary Judgment

28 or Partial Summary Judgment (ECF No. 50). (ECF No. 61).

1 II. FACTS

2 Prior to the July 24, 2018 National City Council meeting, Plaintiff “and five

3 colleagues . . . met to discuss their protest and planned disruption of the meeting after the

4 public comment portion of the meeting.” (Pl.’s Resp. to Defs.’ Separate Statement of

5 Undisputed Material Facts (“SSUMF”) ¶ 1, ECF No. 58-1 at 2). Plaintiff and her

6 colleagues “filled out jail intake forms, acquired bail money, and arranged for people to

7 man the phones so they could call for bail after being arrested.” Id. ¶ 3, ECF No. 58-1 at

8 2. Plaintiff and her colleagues “further discussed not cooperating with law enforcement

9 and being ‘dead weight’ so law enforcement would have to carry them out of [National

10 City] Council chambers.” Id. ¶ 4, ECF No. 58-1 at 2.

11 After the public comment portion of the meeting, Plaintiff “stood up in the public

12 seating section of the room and said ‘I am Earl McNeil.’” Id. ¶ 6, ECF No. 58-1 at 3.

13 Plaintiff “was wearing a bulletproof vest and a sweatshirt.” Id. ¶ 7, ECF No. 58-1 at 3.

14 Plaintiff “and five other people immediately left their seats, passed the public speaking

15 podium[,] and approached the dias where the [National City] Council members were

16 sitting.” Id. ¶ 8, ECF No. 58-1 at 3. Plaintiff and her colleagues “were chanting and

17 shouting ‘you have blood on your hands’ (and/or ‘I am Earl McNeil’), and proceeded to lie

18 face up on the floor with their arms and red painted hands extended while continuing to

19 shout ‘you have blood on your hands.’” Id. ¶ 9, ECF No. 58-1 at 3.

20 “The Mayor called for order.” Id. ¶ 10, ECF No. 58-1 at 3. “The protesters did not

21 stop.” Id. ¶ 11, ECF No. 58-1 at 4. “The [National City] Council meeting was adjourned

22 to allow for order to be restored.” Id. ¶ 12, ECF No. 58-1 at 4. “Law enforcement

23 repeatedly told the protestors, and [Plaintiff] specifically, to leave the room or they would

24 be arrested.” Id. ¶ 13, ECF No. 58-1 at 4. “When warning did not work, law enforcement

25 began making arrests.” Id. ¶ 14, ECF No. 58-1 at 4.

26 A photo submitted in support of Plaintiff’s Response in opposition to Defendants’

27 Motion for Summary Judgment or Partial Summary Judgment (ECF No. 58) depicts two

28 unidentified police officers holding and lifting an unidentified, handcuffed, female, white

1 protestor by the upper arms and/or armpits. See Ex. 2 to Gilliland Decl., ECF No. 58-2 at

2 30. A second photo depicts two unidentified police officers hold and lifting an

3 unidentified, handcuffed, female, white protestor by the upper arms and/or armpits. See

4 Ex. 3 to Gilliland Decl., ECF No. 58-2 at 32. A third photo depicts two unidentified police

5 officers hold and lifting an unidentified, handcuffed, female, white protestor by her bent

6 elbows. See Ex. 11 to Gilliland Decl., ECF No. 58-2 at 72.

7 “Employing the planned uncooperative and ‘dead weight’ tactics, [Plaintiff], who

8 was lying on her back with her eyes closed and still chanting, would not move . . . .” Id. ¶

9 15, ECF No. 58-1 at 4. Defendants “McGouch and Nguyen used their hands to put

10 [Plaintiff] in a seat[ed] position allowing [Defendant] McGouch to place [Plaintiff]’s arms

11 behind her back and handcuff her.” Id. Plaintiff “did not complain about the handcuffs

12 being too tight.” Id. ¶ 17, ECF No. 58-1 at 5. The video footage from a wall-mounted

13 camera inside National City Council chambers depicts Plaintiff and Defendants Nguyen

14 and McGouch on the other side of the podium. See Ex. F to Dong Decl. ECF No. 50-6.

15 After Plaintiff’s arms were handcuffed behind her back, Defendants Nguyen and McGouch

16 momentarily lifted Plaintiff a few feet off the floor to a semi-seated, semi-standing position.

17 See id. Soon after, Defendant Nguyen and/or Defendant McGouch lost their grip and

18 Plaintiff turned mid-air to face the floor before slowly falling to the floor face-down. See

19 id. Plaintiff momentarily remained on her stomach until Defendant Nguyen and/or

20 Defendant McGouch rolled Plaintiff onto her back. See id.; Pl.’s Resp. to Defs.’ SSUMF

21 ¶ 20, ECF No. 58-1 at 5. Again, Defendants Nguyen and McGouch put Plaintiff in a seated

22 position and then lifted Plaintiff a few feet off the floor to a semi-seated, semi-standing

23 position. See Ex. F to Dong Decl. ECF No. 50-6. Defendants Nguyen and McGouch

24 dragged Plaintiff backwards by the arms from the podium to the exit door. See id. The

25 video footage captured by Aaron Leaf depicts Defendant McGouch holding and dragging

26 Plaintiff by the upper right arm and/or right armpit. See Ex. E to Paradis Decl. ECF No.

27 50-5. The video footage captured by UPAT depicts Defendant Nguyen holding and

28 dragging Plaintiff by the left wrist and left forearm upon reaching the exit door. See Ex. D

1 to Paradis Decl. ECF No. 50-5. Plaintiff screamed from the podium to the exit door. See

2 id.; Ex. E to Paradis Decl. ECF No. 50-5; Ex. F to Dong Decl. ECF No. 50-6; Pl.’s Resp.

3 to Defs.’ SSUMF ¶ 26, ECF No. 58-1 at 7.

4 The video footage from Defendant Nguyen’s and Defendant McGouch’s body

5 cameras depict Plaintiff on the other side of the exit door. See Ex. A to Nguyen Decl. ECF

6 No. 50-3; Ex. B to McGouch Decl. ECF No. 50-4. When Defendants’ body camera video

7 footage begins, Plaintiff is face-down on the floor of a hallway with her arms handcuffed

8 behind her back. See Ex. A to Nguyen Decl. ECF No. 50-3; Ex. B to McGouch Decl. ECF

9 No. 50-4. Plaintiff stated that she was unable to stand up because Defendants had hurt her

10 shoulders and requested an ambulance. See Ex. A to Nguyen Decl. ECF No. 50-3; Ex. B

11 to McGouch Decl. ECF No. 50-4. Defendant Nguyen put Plaintiff in a seated position and

12 explained that he and Defendant McGouch were going to “double cuff” Plaintiff’s

13 handcuffs for increased comfort. See Ex. A to Nguyen Decl. ECF No. 50-3; Ex. B to

14 McGouch Decl. ECF No. 50-4. As Defendants Nguyen and McGouch added a second pair

15 of handcuffs to lengthen the distance between Plaintiff’s hands behind her back, Plaintiff

16 complained that it was “too late”, that Defendants Nguyen and McGouch had already

17 pulled her arms and hands, and that Defendants Nguyen and McGouch were “still pulling”

18 her arms and hands while double cuffing. See Ex. A to Nguyen Decl. ECF No. 50-3; Ex.

19 B to McGouch Decl. ECF No. 50-4.

20 The video footage from an unidentified police officer’s body camera depicts Plaintiff

21 back in National City Council chambers sitting on a chair near the podium. See Ex. 8 to

22 Gilliland Decl. ECF No. 58-2. The public seating section of the room was empty and

23 Plaintiff was surrounded by police officers and firefighters. See id. Firefighters conducted

24 a medical evaluation of Plaintiff. See id. When asked by a firefighter what was bothering

25 her, Plaintiff responded that her arms and wrist hurt. See id. When asked by a firefighter

26 if she would like to be taken to the hospital by ambulance, Plaintiff declined. See id.

27 “After the July 24, 2018 protest, [Plaintiff] was arrested by [Defendant] McGouch

28 for violation of California Penal Code section 403, disrupting a public meeting.”

1 (Williamson Decl. ¶ 5, ECF No. 58-3 at 2) (emphasis omitted). “A criminal case was never

2 filed against [Plaintiff] for that arrest.” Id.

3 “Neither [Defendants] Nguyen nor McGouch said anything about [Plaintiff]’s race

4 or her politics before, during[,] or after her arrest.” (Pl.’s Resp. to Defs.’ SSUMF ¶ 38,

5 ECF No. 58-1 at 10). “[N]either [Defendants] Nguyen nor McGouch treated anyone else

6 differently because neither of them arrested, handcuffed[,] nor removed anyone else that

7 day.” Id. ¶ 39, ECF No. 58-1 at 11.

8 “After being released, [Plaintiff] sought medical care.” Id. ¶ 36, ECF No. 58-1 at

9 10. Plaintiff’s July 25, 2018 medical records show that Plaintiff “complain[ed] of left hand

10 pain and bilateral shoulder pain” and experienced “[m]odest swelling of the wrist and

11 deltoid area on the left with no clinical signs of fracture . . . .” (Ex. 9 to Gilliland Decl.,

12 ECF No. 58-2 at 45-46).1 Plaintiff’s July 25, 2018 medical records further show an

13 “[i]mpression” of a “sprain[ed] left wrist and shoulder.” Id. at 46. On July 27, 2018,

14 Plaintiff complained of “back, neck, [and] shoulder pain” and was found to have a sprained

15 left wrist, wrist pain, and shoulder pain on the left side. Id. at 48. Plaintiff’s July 30, 2018

16 medical records state that “[f]ocusing on the wrist reveals mild swelling to the dorsum of

17 the right hand with some associated tenderness and slight tenderness to the mid dorsal

18 aspect of the left wrist.” Id. at 50. On July 30, 2018, Plaintiff was diagnosed with

19 “[b]ilateral wrist sprain”, “placed in a wrist splint”, and referred to physical therapy. Id. at

20 51.

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23 1 Defendants National City, Nguyen, and McGouch object to Exhibits 9 and 10 of Gilliland’s declaration

(ECF No. 58-2 at 43-70) filed in support of Plaintiff’s Response in opposition (ECF No. 58) on the

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grounds they are hearsay and lack foundation. See ECF No. 61-1 at 2. The Court overrules Defendants’

25 objections to Exhibit 9 (ECF No. 58-2 at 43-53) because the contents of the Exhibit may be admissible

as statements made for medical diagnosis or treatment, provided that Plaintiff lays the proper foundation

26 at trial. See Fed. R. Evid. 803(4) (a statement made for medical diagnosis or treatment “(A) is made for-

-and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past

27 or present symptoms or sensations; their inception; or their general cause.”). Defendants’ objections to

Exhibit 10 (ECF No. 58-2 at 54-70) are denied as moot because the Court has not considered this Exhibit

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1 III. MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY

2 JUDGMENT (ECF No. 50)

3 A. Contentions of the Parties

4 Defendants Nguyen and McGouch contend that they are entitled to qualified

5 immunity regarding Plaintiff’s claim for excessive force in violation of 42 U.S.C. § 1983.

6 Defendants National City, Nguyen, and McGouch contend that Plaintiff’s claim for

7 violation of Cal. Civ. Code § 52.1 fails because Plaintiff fails to establish an underlying

8 Fourth Amendment violation and specific intent by Defendants Nguyen or McGouch to

9 violate Plaintiff’s Fourth Amendment rights. Defendants National City, Nguyen, and

10 McGouch contend that Plaintiff’s claim for violation of Cal. Civ. Code § 51.7 fails because

11 the amount of force used was reasonable and Plaintiff fails to establish racial or political

12 bias by Defendants Nguyen or McGouch.

13 Plaintiff contends that Defendants Nguyen and McGouch are not entitled to qualified

14 immunity. Plaintiff contends that Defendants National City, Nguyen, and McGouch

15 violated her Fourth Amendment rights through the use of excessive force. Plaintiff

16 contends that reasonableness of force should be determined by a jury and that there is no

17 dispute of material fact that protesters of different races were treated differently by

18 Defendants.

19 B. Standard of Review

20 “The inquiry performed [at the summary judgment stage] is the threshold inquiry of

21 determining whether there is the need for a trial—whether, in other words, there are any

22 genuine factual issues that properly can be resolved only by a finder of fact because they

23 may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477

24 U.S. 242, 250 (1986). “A party may move for summary judgment, identifying each claim

25 or defense--or the part of each claim or defense--on which summary judgment is sought.”

26 Fed. R. Civ. P. 56(a). “The court shall grant summary judgment if the movant shows that

27 there is no genuine dispute as to any material fact and the movant is entitled to judgment

28 as a matter of law.” Id. A material fact is one that is relevant to an element of a claim or

1 defense and whose existence might affect the outcome of the suit. See Matsushita Elec.

2 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is

3 determined by the substantive law governing the claim or defense. See Anderson, 477 U.S.

4 at 248.

5 “On summary judgment, the moving party bears the [initial] burden of establishing

6 the basis for its motion and identifying evidence that demonstrates the absence of a genuine

7 issue of material fact.” Davis v. United States, 854 F.3d 594, 598 (9th Cir. 2017) (citing

8 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “[W]ith respect to an issue on which

9 the nonmoving party bears the burden of proof . . . , the burden on the moving party may

10 be discharged by ‘showing’—that is, pointing out to the district court—that there is an

11 absence of evidence to support the nonmoving party’s case” and not by “negating the

12 opponent’s claim.” Celotex, 477 U.S. at 323, 325.

13 The burden then shifts to the nonmovant to provide admissible evidence, beyond the

14 pleadings, of specific facts showing a genuine issue for trial. See Anderson, 477 U.S. at

15 256. To survive summary judgment, the nonmovant cannot rest solely on “conclusory

16 allegations of the complaint” or “conclusory allegations of an affidavit [or declaration].”

17 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). “A conclusory, self-serving

18 affidavit [or declaration], lacking detailed facts and any supporting evidence, is insufficient

19 to create a genuine issue of material fact.” F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d

20 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997). Instead, the nonmovant must

21 designate which specific facts show that there is a genuine issue for trial. See Anderson,

22 477 U.S. at 256. “In short, what is required to defeat summary judgment is simply evidence

23 ‘such that a reasonable juror drawing all inferences in favor of the respondent could return

24 a verdict in the respondent’s favor.’” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir.

25 2017) (quoting Reza v. Pearce, 806 F.3d 497, 505 (9th Cir. 2015)).

26 “The evidence of the non-movant is to be believed, and all justifiable inferences are

27 to be drawn in his favor.” Anderson, 477 U.S. at 255 (citing Adickes v. S. H. Kress & Co.,

28 398 U.S. 144, 158-59 (1970)). The nonmoving party’s affidavit or “declaration is to be

1 accepted as true” and the nonmoving party’s “evidence should not be weighed against the

2 evidence of” the moving party. Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th

3 Cir. 1987). “Credibility determinations, the weighing of the evidence, and the drawing of

4 legitimate inferences from the facts are jury functions, not those of a judge . . . .” Anderson,

5 477 U.S. at 255.

6 C. Discussion

7 i. Excessive Force in Violation of 42 U.S.C. § 1983 Against

8 Defendants Nguyen and McGouch (claim 1)

9 Defendants Nguyen and McGouch contend that they are entitled to qualified

10 immunity regarding Plaintiff’s first claim for excessive force in violation of 42 U.S.C. §

11 1983. Defendants Nguyen and McGouch contend that the amount of force used to remove

12 Plaintiff from National City Council chambers was minimal and reasonable. Defendants

13 Nguyen and McGouch contend that there was a significant government interest in

14 controlling protesters and quickly removing Plaintiff from National City Council

15 chambers. Defendants Nguyen and McGouch contend that there was no clearly established

16 law at the time of the incident that would have put them on notice that removing Plaintiff

17 from the room in the manner that she was removed would violate the Fourth Amendment.

18 Defendants Nguyen and McGouch contend that no constitutional violation occurred when

19 Plaintiff was handcuffed because Plaintiff failed to complain about the tightness of the

20 handcuffs and failed to sustain significant and lasting injury to her wrists.

21 Plaintiff contends that Defendants Nguyen and McGouch are not entitled to qualified

22 immunity. Plaintiff contends that Defendants Nguyen and McGouch violated Plaintiff’s

23 Fourth Amended rights because the significant nature of the intrusion outweighs the

24 government’s minimal interest in the use of force. Plaintiff contends that the Fourth

25 Amendment violation was clearly established because Defendants Nguyen and McGouch

26 caused unnecessary pain during Plaintiff’s arrest or detention and used excessive force

27 while Plaintiff was passively resisting.

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1 Section 1983 provides a remedy for constitutional tort violations committed by state

2 and local government officials. Section 1983 states, in relevant part,

3 Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

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causes to be subjected, any citizen of the United States or other person within

5 the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

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injured in an action at law, suit in equity, or other proper proceeding for

7 redress . . . .

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42 U.S.C. § 1983. “The purpose of § 1983 is to deter state actors from using the badge of

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their authority to deprive individuals of their federally guaranteed rights and to provide

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relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

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“Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271

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(1994). To prevail on a § 1983 claim, “a plaintiff must show that (1) acts by the defendants

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(2) under color of state law (3) depriv[ed][him] of federal rights, privileges or immunities

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[and] (4) caus[ed][him] damage . . . .” Thornton v. City of St. Helens, 425 F.3d 1158, 1164

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(9th Cir. 2005) (alterations in original) (citation omitted).

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“The principles of qualified immunity shield an officer from personal liability when

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an officer reasonably believes that his or her conduct complies with the law.” Pearson v.

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Callahan, 555 U.S. 223, 244 (2009). More specifically, “government officials performing

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discretionary functions generally are shielded from liability for civil damages insofar as

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their conduct does not violate clearly established statutory or constitutional rights of which

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a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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“The protection of qualified immunity applies regardless of whether the government

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official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions

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of law and fact.” Pearson, 555 U.S. at 231. Because qualified immunity is “an immunity

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from suit rather than a mere defense to liability . . . , it is effectively lost if a case is

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erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

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1 “An officer cannot be said to have violated a clearly established right unless the

2 right’s contours were sufficiently definite that any reasonable official in [his] shoes would

3 have understood that he was violating it, . . . meaning that existing precedent . . . placed

4 the statutory or constitutional question beyond debate.” City & Cty. of San Francisco,

5 Calif. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (first and third alterations in original)

6 (citation omitted). “This exacting standard gives government officials breathing room to

7 make reasonable but mistaken judgments by protect[ing] all but the plainly incompetent or

8 those who knowingly violate the law.” Id. (alteration in original). “[T]he salient question

9 . . . is whether the state of the law at the time of an incident provided fair warning to the

10 defendants that their alleged [conduct] was unconstitutional.” Tolan v. Cotton, 572 U.S.

11 650, 656 (2014) (alterations in original).

12 “Qualified immunity shields federal and state officials from money damages unless

13 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional

14 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

15 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). “First,

16 a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out

17 a violation of a constitutional right.” Pearson, 555 U.S. at 232 (citations omitted). “[T]he

18 constitutional violation prong concerns the reasonableness of the officer’s mistake of fact .

19 . . .” Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011). While an officer’s

20 actions are not judged “with the 20/20 vision of hindsight,” “[w]here an officer’s particular

21 use of force is based on a mistake of fact, we ask whether a reasonable officer would have

22 or should have accurately perceived that fact.” Id. at 1124. “[I]f the answer to [the first]

23 inquiry is yes, we proceed to determine whether the constitutional right was clearly

24 established in light of the specific context of the case at the time of the events in question.”

25 Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011).

26 “[T]he clearly established prong concerns the reasonableness of the officer’s mistake

27 of law . . . .” Torres, 648 F.3d at 1127. “For a right to be clearly established, its contours

28 must be sufficiently clear that a reasonable official would understand that his or her actions

1 violated that right.” Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014). “The

2 plaintiff bears the burden of proof that the right allegedly violated was clearly

3 established[.]” Id. (alteration in original). “To meet this standard the very action in

4 question need not have previously been held unlawful.” Id. The question is “whether a

5 reasonable officer would have had fair notice that [the action] was unlawful[.]” Id.

6 (alterations in original).

7 The Fourth Amendment guarantees “[t]he right of the people . . . against

8 unreasonable searches and seizures . . . .” U.S. Const. amend. IV. “A claim that law-

9 enforcement officers used excessive force to effect a seizure is governed by the Fourth

10 Amendment’s reasonableness standard.” Plumhoff v. Rickard, 572 U.S. 765, 774 (2014).

11 In other words, to prove an excessive force claim under § 1983, the plaintiff “must show

12 only that the force purposely or knowingly used against him was objectively

13 unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). “A court (judge

14 or jury) cannot apply this standard mechanically.” Id. at 397. “Rather, objective

15 reasonableness turns on the ‘facts and circumstances of each particular case.’” Id. (quoting

16 Graham v. Connor, 490 U.S. 386, 396 (1989)). “A court must make this determination

17 from the perspective of a reasonable officer on the scene, including what the officer knew

18 at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at 396).

19 “The calculus of reasonableness must embody allowance for the fact that police officers

20 are often forced to make split-second judgments—in circumstances that are tense,

21 uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

22 situation.” Graham, 490 U.S. at 396-97. “[T]he question is whether the officers’ actions

23 are objectively reasonable in light of the facts and circumstances confronting them, without

24 regard to their underlying intent or motivation.” Id. at 397.

25 “Determining whether the force used to effect a particular seizure is reasonable

26 under the Fourth Amendment requires a careful balancing of the nature and quality of the

27 intrusion on the individual’s Fourth Amendment interests against the countervailing

28 governmental interests at stake.” Id. at 396. In other words, courts “must balance the

1 amount of force applied against the need for that force.” Bryan v. MacPherson, 630 F.3d

2 805, 823-24 (9th Cir. 2010). The fact-and-circumstance-specific nature of the

3 reasonableness test makes it “not capable of precise definition or mechanical application .

4 . . .” Graham, 490 U.S. at 396.

5 Courts must pay “careful attention to the facts and circumstances of each particular

6 case, including the severity of the crime at issue, whether the suspect poses an immediate

7 threat to the safety of the officers or others, and whether he is actively resisting arrest or

8 attempting to evade arrest by flight.” Id. “These factors, however, are not exclusive.”

9 Bryan, 630 F.3d at 826. “Rather, [courts] examine the totality of the circumstances and

10 consider whatever specific factors may be appropriate in a particular case, whether or not

11 listed in Graham.” Id. “In some cases, for example, the availability of alternative methods

12 of capturing or subduing a suspect may be a factor to consider.” Smith v. City of Hemet,

13 394 F.3d 689, 701 (9th Cir. 2005). Other factors that may bear on the reasonableness of

14 the force used include “the relationship between the need for the use of force and the

15 amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to

16 temper or to limit the amount of force; the severity of the security problem at issue; [and]

17 the threat reasonably perceived by the officer . . . .” Kingsley, 576 U.S. at 397.

18 The Court of Appeals has stated that courts must “first consider[ ] the nature and

19 quality of the alleged intrusion; [ ] then consider the governmental interests at stake by

20 looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate

21 threat to the safety of the officers or others, and (3) whether the suspect was actively

22 resisting arrest or attempting to evade arrest by flight.” Thomas v. Dillard, 818 F.3d 864,

23 889 (9th Cir. 2016) (quoting Mattos, 661 F.3d at 441), as amended (May 5, 2016). These

24 factors are not exclusive and courts are “free to consider issues outside the three

25 enumerated above when additional facts are necessary to account for the totality of

26 circumstances in a given case.” Mattos, 661 F.3d at 441. “Because [the excessive force

27 inquiry] nearly always requires a jury to sift through disputed factual contentions, and to

28 draw inferences therefrom, we have held on many occasions that summary judgment or

1 judgment as a matter of law in excessive force cases should be granted sparingly.” Smith,

2 394 F.3d at 701 (alteration in original).

3 1. Tight Handcuffs

4 “It is well-established that overly tight handcuffing can constitute excessive force.”

5 Wall v. Cty. of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004). “The issue of tight

6 handcuffing is usually fact-specific and is likely to turn on the credibility of the witnesses.”

7 LaLonde v. Cty. of Riverside, 204 F.3d 947, 960 (9th Cir. 2000).

8 In several cases, the Court of Appeals has found no qualified immunity on excessive

9 force claims regarding tight handcuffing and/or contentions that tight handcuffing

10 presented a triable issue of fact as to an excessive force claim. However, in each of those

11 cases, the plaintiff repeatedly complained that the handcuffs were too tight and/or

12 repeatedly asked officers to loosen them. See e.g., Meredith v. Erath, 342 F.3d 1057, 1060,

13 1063-64 (9th Cir. 2003) (no qualified immunity on excessive force claim when defendant

14 IRS agent tightly handcuffed plaintiff and refused to loosen handcuffs for 30 minutes

15 despite several complaints from plaintiff); LaLonde, 204 F.3d at 960, 962 (triable issue of

16 fact as to excessive force claim and no qualified immunity when defendant officers tightly

17 handcuffed plaintiff, refused to loosen the handcuffs when plaintiff complained, and

18 permitted pepper spray to remain on plaintiff’s face); Palmer v. Sanderson, 9 F.3d 1433,

19 1436 (9th Cir. 1993) (no qualified immunity on excessive force claim when “Sanderson [

20 ] presented no evidence that would justify handcuffing Palmer so tightly that he suffered

21 pain and bruises, or to justify his refusal to loosen the handcuffs after Palmer complained

22 of the pain”); Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1322-23 (9th Cir. 1995)

23 (triable issue of fact as to excessive force claim and no qualified immunity when defendant

24 officers disregarded plaintiff’s repeated requests to loosen or remove handcuffs for 35 to

25 40 minutes); Wall, 364 F.3d at 1109-10, 1112 (triable issue of fact as to excessive force

26 claim and no qualified immunity when defendant officer tightly handcuffed plaintiff, threw

27 him into patrol car, left him there for 20 minutes in 80 to 90 degree heat, and disregarded

28 two requests from plaintiff to loosen the handcuffs).

1 District courts have also denied qualified immunity in cases where the plaintiff

2 repeatedly complained that the handcuffs were too tight and/or repeatedly asked officers

3 to loosen them. See e.g., Gregory v. Adams, No. CIV S-05-1393 FCD EFB P, 2008 WL

4 486013, at *5-6 (E.D. Cal. Feb. 19, 2008) (triable issue of fact as to excessive force claim

5 when plaintiff “was wearing a wrist brace at the time the handcuffs were placed on him

6 [and] repeatedly called out to have the [hand]cuffs loosened because he was in acute pain,

7 and that those appeals were ignored for a protracted period of time”), report and

8 recommendation adopted, No. CIV S-05-1393 FCD EFB P, 2008 WL 780672 (E.D. Cal.

9 Mar. 21, 2008); Lawrence v. City & Cty. of San Francisco, 258 F. Supp. 3d 977, 990-92

10 (N.D. Cal. 2017) (triable issue of fact as to excessive force claim and no qualified immunity

11 when “there [wa]s no evidence that [defendant officer] checked the tightness of the

12 handcuffs or placed another set of handcuffs on [p]laintiff in response to his complaints

13 after [p]laintiff told her that the handcuffs caused him pain”); Arias v. Amador, 61 F. Supp.

14 3d 960, 977 (E.D. Cal. 2014) (triable issue of fact as to excessive force claim when

15 defendant officer “ignored [plaintiff]’s request (and a paramedic’s suggestion) to loosen

16 [plaintiff]’s handcuffs”, “failed to secure [the handcuffs] to prevent them from tightening

17 during the drive to jail”, and “drove in such a way as to cause the handcuffs to actually

18 become tighter”).

19 A single complaint regarding tight handcuffs or a single request to loosen or remove

20 tight handcuffs is generally insufficient to show that the tight handcuffing constituted

21 excessive force. See e.g., Smith v. Yarborough, No. CV 04-4502-DSF (JTL), 2008 WL

22 4877464, at *12-14 (C.D. Cal. Nov. 7, 2008) (defendant sergeant was entitled to summary

23 judgment on excessive force claim because “there [wa]s no evidence that plaintiff

24 complained about the handcuffs to [defendant sergeant] on more than one occasion” and

25 “[n]or was this a situation where plaintiff had a preexisting condition or injury, known to

26 [defendant sergeant], making tight handcuffing particularly painful or harmful”), aff’d, 578

27 F. App’x 721 (9th Cir. 2014); Antonellis v. California, No. SACV 15-00024 JVS (JCGx),

28 2017 WL 6021425, at *5 (C.D. Cal. Jan. 31, 2017) (defendant officer was entitled to

1 summary judgment on excessive force claim because plaintiff’s “single complaint to [ ]

2 [defendant] officers [about excessive tightness] and allegation of bruising [could not]

3 support her excessive force claim”), aff’d, 728 F. App’x 739 (9th Cir. 2018); Shaw v. City

4 of Redondo Beach, No. CV 05-0481 SVW (FMOx), 2005 WL 6117549, at *9, 11 (C.D.

5 Cal. Aug. 23, 2005) (defendant officer was entitled to summary judgment on excessive

6 force claim because plaintiff “did not repeatedly request to have the handcuffs removed or

7 loosened, was not in any demonstrable pain, did not complain of pain or inform [defendant

8 officer] of any pre-existing injuries, and was not pushed or shoved”); Han v. City of Los

9 Angeles, No. CV 14-08582 DDP (AJWx), 2016 WL 2758241, at *8, 10 (C.D. Cal. May

10 12, 2016) (dismissing claim against defendant guards and officers regarding excessive

11 force claim on summary judgment because “the only facts for excessive force . . . [we]re

12 that [p]laintiff informed [defendant] officers of a preexisting shoulder injury that was

13 causing him pain based on the handcuffs being tight behind his back and that [defendant]

14 officers did not do anything to alleviate that pain”).

15 In this case, the evidence in the records shows that Plaintiff “did not complain about

16 the handcuffs being too tight.” (Pl.’s Resp. to Defs.’ SSUMF ¶ 17, ECF No. 58-1 at 5).

17 The evidence in the records shows that Defendants Nguyen and McGouch placed a second

18 pair of handcuffs on Plaintiff to lengthen the distance between Plaintiff’s hands behind her

19 back. See Ex. A to Nguyen Decl. ECF No. 50-3; Ex. B to McGouch Decl. ECF No. 50-4.

20 Plaintiff has failed to come forward with evidence to show that Defendants Nguyen and

21 McGouch were aware of Plaintiff’s tight handcuffs. Plaintiff has failed to present evidence

22 to support a genuine issue of material fact as to the excessive force claim regarding tight

23 handcuffs. The Court need not consider the second qualified immunity prong because the

24 Court finds that there is no genuine issue of material fact as to whether the handcuffing

25 constituted a constitutional violation. The Court grants summary judgment in favor of

26 Defendants Nguyen and McGouch and against Plaintiff for excessive force in violation of

27 42 U.S.C. § 1983 (claim 1) regarding tight handcuffs.

28

1 2. Pulling Plaintiff’s Arms and Hands

2 In this case, the evidence in the records shows that Defendants Nguyen and

3 McGouch put Plaintiff in a seated position and then lifted Plaintiff a few feet off the floor

4 to a semi-seated, semi-standing position while Plaintiff’s hands were handcuffed behind

5 her back. See Ex. F to Dong Decl. ECF No. 50-6. Reviewed in the light most favorable to

6 Plaintiff, the evidence in the records shows that Defendants Nguyen and McGouch dragged

7 Plaintiff backwards by the arms from the podium to the exit door while she was handcuffed.

8 See id. The video footage captured by Aaron Leaf depicts Defendant McGouch holding

9 and dragging Plaintiff by the upper right arm and/or right armpit. See Ex. E to Paradis

10 Decl. ECF No. 50-5. The video footage captured by UPAT depicts Defendant Nguyen

11 holding and dragging Plaintiff by the left wrist and left forearm upon reaching the exit

12 door. See Ex. D to Paradis Decl. ECF No. 50-5. The evidence in the records shows that

13 Plaintiff screamed while she was dragged from the podium to the exit door. See id.; Ex. E

14 to Paradis Decl. ECF No. 50-5; Ex. F to Dong Decl. ECF No. 50-6; Pl.’s Resp. to Defs.’

15 SSUMF ¶ 26, ECF No. 58-1 at 7.

16 The evidence in the record shows that, later the same day, when asked by a firefighter

17 what was bothering her, Plaintiff responded that her arms and wrist hurt. See Ex. 8 to

18 Gilliland Decl. ECF No. 58-2. When asked by a firefighter if she would like to be taken to

19 the hospital by ambulance, Plaintiff declined. See id. Plaintiff’s July 25, 2018 medical

20 records show that Plaintiff “complain[ed] of left hand pain and bilateral shoulder pain” and

21 experienced “[m]odest swelling of the wrist and deltoid area on the left with no clinical

22 signs of fracture . . . .” (Ex. 9 to Gilliland Decl., ECF No. 58-2 at 45-46). Plaintiff’s July

23 25, 2018 medical records further show an “[i]mpression” of a “sprain[ed] left wrist and

24 shoulder.” Id. at 46. On July 27, 2018, Plaintiff complained of “back, neck, [and] shoulder

25 pain” and was found to have a sprained left wrist and shoulder pain on the left side. Id. at

26 48. Plaintiff’s July 30, 2018 medical records state that “[f]ocusing on the wrist reveals

27 mild swelling to the dorsum of the right hand with some associated tenderness and slight

28 tenderness to the mid dorsal aspect of the left wrist.” Id. at 50. On July 30, 2018, Plaintiff

1 was diagnosed with “[b]ilateral wrist sprain”, “placed in a wrist splint”, and referred to

2 physical therapy. Id. at 51.

3 Courts must “first consider[ ] the nature and quality of the alleged intrusion; [ ] then

4 consider the governmental interests at stake by looking at (1) how severe the crime at issue

5 is, (2) whether the suspect posed an immediate threat to the safety of the officers or others,

6 and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by

7 flight.” Thomas, 818 F.3d at 889 (quoting Mattos, 661 F.3d at 441).

8 The evidence in the record demonstrates a substantial intrusion. Plaintiff screamed

9 while she was dragged from the podium to the exit door. See Ex. D to Paradis Decl. ECF

10 No. 50-5; Ex. E to Paradis Decl. ECF No. 50-5; Ex. F to Dong Decl. ECF No. 50-6; Pl.’s

11 Resp. to Defs.’ SSUMF ¶ 26, ECF No. 58-1 at 7. On July 25, 2018, Plaintiff complained

12 of pain in her left hand and bilateral shoulder pain. See Ex. 9 to Gilliland Decl., ECF No.

13 58-2 at 45-46. On July 27, 2018, Plaintiff complained of back, neck, and shoulder pain

14 and was found to have a sprained left wrist and shoulder pain on the left side. See id. at

15 48. On July 30, 2018, Plaintiff was diagnosed with mild swelling of the right hand and

16 tenderness of the left wrist. See id. at 50. On July 30, 2018, Plaintiff was diagnosed with

17 bilateral wrist sprain, placed in a wrist splint, and referred to physical therapy. See id. at

18 51.

19 The evidence in the record demonstrates that “the governmental interests at stake”

20 were comparatively low. Thomas, 818 F.3d at 889 (quoting Mattos, 661 F.3d at 441). The

21 “crime at issue” was “violation of California Penal Code section 403,” “disturbance of a

22 public assembly or meeting,” which is “a misdemeanor.” Id. (quoting Mattos, 661 F.3d at

23 441); Williamson Decl. ¶ 5, ECF No. 58-3 at 2; Cal. Penal Code § 403. Plaintiff did not

24 “pose[] an immediate threat to the safety of the officers or others” and was not “actively

25 resisting arrest or attempting to evade arrest by flight” because Plaintiff “[e]mploy[ed] . . .

26 uncooperative and ‘dead weight’ tactics [by] lying on her back with her eyes closed[,] . . .

27 chanting, [and] [ ] not mov[ing] . . . .” Thomas, 818 F.3d at 889 (quoting Mattos, 661 F.3d

28 at 441); Pl.’s Resp. to Defs.’ SSUMF ¶ 15, ECF No. 58-1 at 4.

1 The Court finds that Plaintiff presents a genuine issue of material fact as to the

2 excessive force claim regarding Defendant Nguyen’s and Defendant McGouch’s pulling

3 of Plaintiff’s arms and hands such that a reasonable jury could find excessive force in

4 violation of 42 U.S.C. § 1983. See e.g., Lopez v. Chula Vista Police Dep’t, No. 07cv1272

5 WQH (BLM), 2009 WL 10725739, at *7 (S.D. Cal. June 22, 2009) (“In spite of [p]laintiff’s

6 non-resistance and immediate offering of his ICE credentials, . . . [d]efendant [o]fficers

7 ‘spun [[p]laintiff] around,’ ‘yank[ed] [his] arms in . . . opposite directions,’ lifted him off

8 his feet by ‘jamm[ing]’ his arm ‘all the way up,’ and then ‘took [him] down to the ground.’

9 . . . with such force that it caused [p]laintiff extreme back pain which ultimately required

10 surgery. . . . [O]ne [defendant] [o]fficer put a taser to [p]laintiff’s ribs and threatened to

11 tase him, and at least one [defendant] [o]fficer pointed a gun at [p]laintiff’s head. . . . [A]

12 reasonable jury could find that [ ] [d]efendant [o]fficers used excessive force in violation

13 of the Fourth Amendment when they initially detained and handcuffed [p]laintiff.”).

14 An officer will not be entitled to qualified immunity if the law is “clearly established

15 such that it would be clear to a reasonable officer that his conduct was unlawful in the

16 situation he confronted.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1078-79 (9th Cir.

17 2011). It was clearly established at the time of the incident that Defendant Nguyen’s and

18 Defendant McGouch’s use of force must be reasonable under the circumstances. Taking

19 the evidence in the light most favorable to Plaintiff, the Court finds that Defendants Nguyen

20 and McGouch are not entitled to qualified immunity regarding the pulling of Plaintiff’s

21 arms and hands. The Court denies summary judgment as to excessive force in violation of

22 42 U.S.C. § 1983 (claim 1) regarding Defendant Nguyen’s and Defendant McGouch’s

23 pulling of Plaintiff’s arms and hands.

24 ii. Excessive Force in Violation of Cal. Civ. Code § 52.1 Against

25 Defendants National City, Nguyen, and McGouch (claim 3)

26 Defendants National City, Nguyen, and McGouch contend that Plaintiff’s third

27 claim pursuant to Cal. Civ. Code § 52.1 fails because Plaintiff fails to establish a requisite

28 underlying Fourth Amendment violation and Plaintiff fails to establish specific intent by

1 Defendants Nguyen or McGouch to violate Plaintiff’s Fourth Amendment rights. Plaintiff

2 contends that Defendants National City, Nguyen, and McGouch violated her Fourth

3 Amendment rights through the use of excessive force.

4 California Civil Code § 52.1 states, in relevant part,

5 Any individual whose exercise or enjoyment of rights secured by the

Constitution or laws of the United States, or of rights secured by the

6

Constitution or laws of this state, has been interfered with, or attempted to be

7 interfered with, . . . may institute and prosecute in his or her own name and

on his or her own behalf a civil action for damages . . . .

8

9 Cal. Civ. Code § 52.1(c). The elements of a § 52.1 excessive force claim are essentially

10 identical to those of a § 1983 excessive force claim. See City of Simi Valley v. Superior

11 Court, 111 Cal. App. 4th 1077, 1085 (2003) (where federal constitutional claims are barred

12 and there is no conduct constituting a state constitutional violation, there is no basis for

13 liability under § 52.1).

14 For the reasons stated above in the Court’s analysis of Plaintiff’s § 1983 claim,

15 Plaintiff has failed to present a genuine issue of material fact as to excessive force regarding

16 tight handcuffs. Therefore, Plaintiff’s claim against Defendants National City, Nguyen,

17 and McGouch for excessive force in violation of § 52.1 regarding tight handcuffs also fails.

18 See e.g., Lawrence, 258 F. Supp. 3d at 998 (“[T]here is no evidence that [defendant officer]

19 violated [p]laintiff’s constitutional rights. Accordingly, there is no basis to state a [§ 52.1]

20 claim against [defendant officer].”). The court grants summary judgment in favor of

21 Defendants National City, Nguyen, and McGouch and against Plaintiff for excessive force

22 in violation of Cal. Civ. Code § 52.1 (claim 3) regarding tight handcuffs.

23 For the reasons stated above in the Court’s analysis of Plaintiff’s § 1983 claim,

24 Plaintiff has presented a genuine issue of material fact as to excessive force regarding

25 Defendant Nguyen’s and Defendant McGouch’s pulling of Plaintiff’s arms and hands.

26 Therefore, Plaintiff has presented a genuine issue of material fact as to whether Defendants

27 Nguyen and McGouch are liable pursuant to § 52.1. See e.g., Lopez, 2009 WL 10725739,

28 at *13 (“For the reasons stated above in the Court’s analysis of [p]laintiff’s § 1983 claims

1 against the [d]efendant [o]fficers and [s]ergeants, [p]laintiff has raised a triable issue of

2 fact as to whether the [d]efendant [o]fficers and [s]ergeants are liable pursuant to . . . §

3 52.1.”). The Court denies summary judgment as to excessive force in violation of Cal. Civ.

4 Code § 52.1 (claim 3) regarding Defendant Nguyen’s and Defendant McGouch’s pulling

5 of Plaintiff’s arms and hands.

6 California Government Code § 815.2 states that

7 (a) A public entity is liable for injury proximately caused by an act or

omission of an employee of the public entity within the scope of his

8

employment if the act or omission would, apart from this section, have given

9 rise to a cause of action against that employee or his personal representative.

10

(b) Except as otherwise provided by statute, a public entity is not liable for

11 an injury resulting from an act or omission of an employee of the public entity

where the employee is immune from liability.

12

13 Cal. Gov’t Code § 815.2. “California . . . has rejected the Monell rule and imposes liability

14 on counties [and cities] under the doctrine of respondeat superior for acts of county [and

15 city] employees; it grants immunity to counties [and cities] only where the public employee

16 would also be immune.” Robinson v. Solano Cty., 278 F.3d 1007, 1016 (9th Cir. 2002)

17 (citing Cal. Gov’t Code § 815.2). “[A] governmental entity can be held vicariously liable

18 when a police officer acting in the course and scope of employment uses excessive force .

19 . . .” Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 215 (1991). Defendants do not claim

20 that Defendants Nguyen and McGouch were acting outside the scope of their employment.

21 Therefore, Defendant National City would be vicariously liable for any excessive force

22 committed by Defendants Nguyen and McGouch in violation of § 52.1. See e.g., Lopez,

23 2009 WL 10725739, at *13 (“[B]ecause California law imposes liability on public entities

24 for acts committed by their employees while in the scope of their employment, see Cal.

25 Gov’t Code § 815.2, the Court denies the Motion for Summary Judgment as to Plaintiff’s

26 § 52.1 claims against the Municipal Defendants.”). The Court denies summary judgment

27 as to Defendant National City’s vicarious liability for excessive force in violation of Cal.

28

1 Civ. Code § 52.1 (claim 3) regarding Defendant Nguyen’s and Defendant McGouch’s

2 pulling of Plaintiff’s arms and hands.

3 iii. Violence Because of Race in Violation of Cal. Civ. Code § 51.7

4 Against Defendants National City, Nguyen, and McGouch (claim

5 2)

6 Defendants National City, Nguyen, and McGouch contend that Plaintiff’s second

7 claim pursuant to Cal. Civ. Code § 51.7 is precluded because the amount of force used to

8 handcuff and remove Plaintiff from National City Council chambers was reasonable.

9 Defendants National City, Nguyen, and McGouch contend that Plaintiff fails to establish

10 the second element of her § 51.7 claim because Plaintiff fails to establish racial or political

11 bias by Defendants Nguyen or McGouch.

12 Plaintiff contends that reasonableness of force should be determined by a jury

13 because the inquiry requires sifting through and drawing inferences from disputed factual

14 contentions. Plaintiff contends that there is no dispute of material fact that protesters of

15 different races were treated differently because three female white protesters were carried

16 out of National City Council chambers in a reasonable manner while Plaintiff, a black

17 female protester, was subjected to excessive force.

18 California Civil Code § 51.7 states, in relevant part,

19 All persons within the jurisdiction of this state have the right to be free from

any violence, or intimidation by threat of violence, committed against their

20

persons or property because of political affiliation, or on account of any

21 characteristic listed or defined in subdivision (b) or (e) of Section 51, or

position in a labor dispute, or because another person perceives them to have

22

one or more of those characteristics. The identification in this subdivision of

23 particular bases of discrimination is illustrative rather than restrictive.

24

Cal. Civ. Code § 51.7(b). Characteristics include sex, race, color, religion, ancestry,

25

national origin, disability, medical condition, genetic information, marital status, sexual

26

orientation, citizenship, primary language, or immigration status. See Cal. Civ. Code §

27

51(b), (e). Sections 51.7 and 52.1 were enacted to “provide a civil remedy for hate crimes.”

28

1 D.C. v. Harvard-Westlake Sch., 176 Cal. App. 4th 836, 844 (2009). To prevail on a § 51.7

2 claim, a plaintiff must establish four elements: (1) the defendants threatened or committed

3 violent acts against the plaintiff; (2) the defendants were motivated by their perception of

4 the plaintiff’s race; (3) the plaintiff was harmed; and (4) the defendants’ conduct was a

5 substantial factor in causing the plaintiff’s harm. See Austin B. v. Escondido Union Sch.

6 Dist., 149 Cal. App. 4th 860, 880-81 (2007).

7 In this case, the evidence in the record shows that “neither [Defendants] Nguyen nor

8 McGouch treated anyone else differently because neither of them arrested, handcuffed[,]

9 or removed anyone else that day.” (Pl.’s Resp. to Defs.’ SSUMF ¶ 39, ECF No. 58-1 at

10 11). The video footage captured by Aaron Leaf depicts Defendant McGouch holding and

11 dragging Plaintiff by the upper right arm and/or right armpit. See Ex. E to Paradis Decl.

12 ECF No. 50-5. The video footage captured by UPAT depicts Defendant Nguyen holding

13 and dragging Plaintiff by the left wrist and left forearm upon reaching the exit door. See

14 Ex. D to Paradis Decl. ECF No. 50-5. In support of Plaintiff’s Response in opposition to

15 Defendants’ Motion for Summary Judgment or Partial Summary Judgment (ECF No. 58),

16 Plaintiff filed photos of unidentified police officers removing other protesters from

17 National City Council chambers on July 24, 2018. See Ex. 2 to Gilliland Decl., ECF No.

18 58-2 at 30; Ex. 3 to Gilliland Decl., ECF No. 58-2 at 32; Ex. 11 to Gilliland Decl., ECF

19 No. 58-2 at 72. The first photo depicts two unidentified police officers holding and lifting

20 a handcuffed, female, white protestor by the upper arms and/or armpits. See Ex. 2 to

21 Gilliland Decl., ECF No. 58-2 at 30. The second photo depicts two unidentified police

22 officers hold and lifting a handcuffed, female, white protestor by the upper arms and/or

23 armpits. See Ex. 3 to Gilliland Decl., ECF No. 58-2 at 32. The third photo depicts two

24 unidentified police officers hold and lifting a handcuffed, female, white protestor by her

25 bent elbows. See Ex. 11 to Gilliland Decl., ECF No. 58-2 at 72. Plaintiff fails to establish

26 the identity of these police officers and whether any of them were Defendants Nguyen or

27 McGouch.

28

1 The evidence in the record shows that the manner in which Defendants Nguyen and

2 McGouch held and dragged Plaintiff was similar to the manner in which the unidentified

3 police officers held and lifted female white protestors. The evidence in the record shows

4 that “[n]either [Defendants] Nguyen nor McGouch said anything about [Plaintiff]’s race or

5 her politics before, during[,] or after her arrest.” (Pl.’s Resp. to Defs.’ SSUMF ¶ 38, ECF

6 No. 58-1 at 10). Plaintiff has failed to present a genuine issue of material fact as to the

7 claim of violence because of race. See e.g., Jaramillo v. City of San Mateo, 76 F. Supp. 3d

8 905, 928 (N.D. Cal. 2014) (“Because Jaramillo has not presented evidence . . . that the

9 [defendant] officers were ‘motivated by prejudice against [Jaramillo]’ because he is

10 Hispanic, . . . the Court GRANTS the [defendant] officers’ and the [defendant] City’s

11 motion [for summary judgment] as to this claim under § 51.7.”); Warren v. Marcus, 78 F.

12 Supp. 3d 1228, 1248 (N.D. Cal. 2015) (“[The] [p]laintiff testified that after he was shot, he

13 heard someone use a racial epithet. . . . [The] [d]efendant [officer] denies being near

14 [p]laintiff after the shooting and denies making the statement. [The] [p]laintiff provides

15 no authority to support attributing the epithet by an unidentified officer to [d]efendant

16 [officer] for purposes of section 51.7 liability. [The] [p]laintiff has failed to demonstrate a

17 genuine dispute of fact as to whether [d]efendant [officer] was motivated by racial animus

18 when he shot Plaintiff. Accordingly, the court grants summary judgment as to [p]laintiff’s

19 section 51.7 claim.”). The Court grants summary judgment in favor of Defendants

20 National City, Nguyen, and McGouch and against Plaintiff for violence because of race in

21 violation of Cal. Civ. Code § 51.7 (claim 2).

22 IV. MOTION TO CONSOLIDATE CASES (ECF No. 51)

23 Plaintiff requests that the Court consolidate this case (“Williamson I”) with a

24 separate action, Williamson v. Long et al, No. 3:20-cv-00743-AJB-AGS (S.D. Cal. filed

25 Apr. 17, 2020) (“Williamson II”). In Williamson II, Plaintiff initiated the action by filing

26 a Complaint against Defendants Daniel Long and Hadel Awad. (ECF No. 1). Plaintiff

27 alleges that she sustained injuries when Defendants Long and Awad (National City police

28 officers) handcuffed her during a National City Council meeting, escorted her from

1 National City Council chambers, and transported her to the National City police station on

2 June 19, 2018. See id. at 2-4. Plaintiff brings one cause of action for excessive force in

3 violation of 42 U.S.C. § 1983 against Defendants Long and Awad. See id. at 4-5.

4 Plaintiff contends that there are common questions of fact because the questions of

5 fact are substantially similar. Plaintiff asserts that Defendant National City’s rebuttal

6 expert opined that Plaintiff’s rotator cuff could have been torn on June 19, 2018 or July 24,

7 2018. Plaintiff contends that inconsistent judgments and a miscarriage of justice will occur

8 if a jury is convinced that Plaintiff was injured on June 19, 2018 by Defendants Long and

9 Awad because Plaintiff may not receive compensation for injuries allegedly sustained on

10 July 24, 2018 by Defendants National City, Nguyen, and McGouch. Defendants National

11 City, Nguyen, and McGouch contend that there are no common questions of law or fact.

12 Defendants National City, Nguyen, and McGouch contend that consolidation will cause

13 inconvenience, delay, prejudice, and confusion.

14 “If actions before the court involve a common question of law or fact, the court may:

15 (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the

16 actions; or (3) issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P.

17 42(a). “The district court has broad discretion under this rule to consolidate cases pending

18 in the same district.” Inv’rs Research Co. v. U.S. Dist. Court for Cent. Dist. of California,

19 877 F.2d 777, 777 (9th Cir. 1989).

20 The Court finds that there are no common legal or factual issues between Williamson

21 I and II. Williamson I involves numerous remaining causes of action including excessive

22 force in violation of 42 U.S.C. § 1983 (claim 1) regarding Defendant Nguyen’s and

23 Defendant McGouch’s pulling of Plaintiff’s arms and hands; excessive force in violation

24 of Cal. Civ. Code § 52.1 (claim 3) regarding Defendant Nguyen’s and Defendant

25 McGouch’s pulling of Plaintiff’s arms and hands; and Defendant National City’s vicarious

26 liability for excessive force in violation of Cal. Civ. Code § 52.1 (claim 3) regarding

27 Defendant Nguyen’s and Defendant McGouch’s pulling of Plaintiff’s arms and hands. On

28 the other hand, in Williamson II, Plaintiff brings only one cause of action for excessive

1 || force in violation of 42 U.S.C. § 1983 against Defendants Long and Awad. Williamson I

2 || and // pertain to different events which occurred over one month apart and involve different

3 defendants. The Court declines to consolidate Williamson I and II.

CONCLUSION

5 IT IS HEREBY ORDERED that the Motion for Summary Judgment or Partial

6 || Summary Judgment filed by Defendants National City, Lucky Nguyen and John McGough

7 || (ECF No. 50) is GRANTED IN PART and DENIED IN PART. Summary judgment is

8 || GRANTED as to Plaintiff's first claim for excessive force in violation of 42 U.S.C. § 1983

9 || regarding tight handcuffs, Plaintiff's second claim for violence because of race in violation

10 || of Cal. Civ. Code § 51.7, and Plaintiff's third claim for excessive force in violation of Cal.

11 || Civ. Code § 52.1 regarding tight handcuffs. Summary judgment is otherwise DENIED.

12 IT IS FURTHER ORDERED that the Motion to Consolidate Cases filed by Plaintiff

13 || Tasha Williamson (ECF No. 51) is DENIED.

14 IT IS FURTHER ORDERED that the final pretrial conference is set for Thursday,

15 ||November 12, 2020 at 9:30 a.m. in Courtroom 14B before the Honorable William Q.

16 ||Hayes. The parties shall lodge the proposed pretrial order on or before October 9, 2020.

17 || Dated: September 3, 2020 BE: te Z. A a

18 Hon, William Q. Hayes

19 United States District Court

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