1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICK C. BUCKHALTER, No. 2:17-cv-02072-KJM-AC 12 Plaintiff, 13 v. ORDER 14 DANIEL TORRES, in his personal and official capacities as a peace officer of 15 Vacaville Police Department, et al., 16 Defendants. 17 18 This excessive force civil rights action brought under 42 U.S.C. § 1983 arises from 19 plaintiff Nick Buckhalter’s arrest and handcuffing by Vacaville police officer Daniel Torres. 20 Plaintiff brought this lawsuit against defendants Torres, Vacaville police officer Roger Canady, 21 the Police Chief, the City of Vacaville and other city and police department personnel, alleging 22 Torres kept plaintiff secured in excessively tight handcuffs for up to seven hours before booking 23 him into jail, despite plaintiff’s requests to loosen them. Defendants Torres and Canady now 24 move for summary judgment, or in the alternative, partial summary judgment on all of plaintiff’s 25 claims. Mot., ECF No. 46. Plaintiff has filed an opposition, ECF No. 53, and defendants have 26 filed a reply, ECF No. 54. The court heard argument on the motion on January 25, 2019. As 27 explained below, the court GRANTS in part and DENIES in part defendants’ motion. 28 1 I. BACKGROUND 2 A. Disputed and Undisputed Facts 3 The following facts derive from defendants’ statement of undisputed facts 4 (“SUF”), plaintiff’s statement of additional facts and defendants’ response to that statement, 5 evidence cited in those statements as well as the court’s review of the record. See ECF No. 50. 6 The court treats these facts as undisputed unless otherwise stated.1 The parties may object to the 7 evidence cited as proving the undisputed facts, In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385– 8 86 (9th Cir. 2010), and the court notes and resolves evidentiary objections below. 9 1. Evidentiary Objections 10 Defendants object to plaintiff’s declaration in opposition to summary judgment, 11 asserting the declaration impermissibly contradicts plaintiff’s sworn deposition testimony. Reply, 12 ECF No. 54, at 9–10. Defendants cite Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th 13 Cir. 1991), for the proposition that “a party cannot create an issue of fact by an affidavit 14 contradicting his prior deposition testimony.” This rule, however, “does not automatically 15 dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier 16 deposition testimony.” Id. at 266–67. To invoke the rule, a district court must first determine that 17 the contradiction is a “sham” used to “‘create’ an issue of fact and avoid summary judgment.” Id. 18 at 267. Then, the court must determine the inconsistency is “clear and unambiguous” to justify 19 striking an affidavit. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998–99 (9th Cir. 2009). An 20 affidavit that elaborates on, explains, or clarifies deposition testimony is not a sham. Id. at 999 21 (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995)). 22 In his declaration, plaintiff claims he told Torres, shortly after being secured in the 23 patrol vehicle, “the handcuffs are really tight–they’re hurting my wrists” and asked Torres to 24 loosen them, yet Torres ignored his request. Buckhalter Decl., ECF No. 53-1, ¶ 4. In his 25 deposition, plaintiff testified he told Torres he “needed to go to the hospital” because his arm was 26
27 1 Plaintiff accepts defendants’ statement of facts, with the addition of facts from plaintiff’s declaration. Opp’n, ECF No. 53-1, at 1. 28 1 “inflamed,” but he did not mention the pain to anyone else; he said he felt the pain only in his left 2 arm from his shoulder to his elbow. Buckhalter Dep. 91:6–92:18, ECF No. 49. Plaintiff further 3 testified he asked Torres to loosen the handcuffs two times after leaving the hospital. Buckhalter 4 Dep. 151:4–18. Defendants argue plaintiff’s declaration is contradictory because plaintiff 5 affirmatively states in his declaration he twice requested Torres loosen the handcuffs on his 6 wrists, once before they arrived at the hospital and once after leaving the hospital, and Torres 7 ignored both requests; yet in his deposition plaintiff testified he made both requests after leaving 8 the hospital and never told Torres he was experiencing pain due to the handcuffs being too tight 9 or requested Torres loosen the handcuffs prior to arriving at the hospital. Reply at 9–10. 10 The court finds plaintiff’s declaration flatly contradicts his deposition testimony. 11 Plaintiff testified he told Torres he “needed to go to the hospital” because “[his] arm was 12 inflamed,” but did not say anything else to Torres and did not speak to anyone else prior to 13 arriving at the hospital. Buckhalter Dep. 91:9–92:2. Further, when asked during his deposition if 14 he was “feeling pain . . . [a]nywhere else” other than his left shoulder, plaintiff responded “no.” 15 Buckhalter Dep. 92:12–18. Finally, plaintiff testified he twice asked Torres to loosen the 16 handcuffs, making both requests after they left the hospital. Buckhalter Dep. 151:4–18. This 17 testimony directly contradicts plaintiff’s statements in his declaration that he told Torres the 18 handcuffs were hurting his wrists and asked Torres to loosen them before they arrived at the 19 hospital. Buckhalter Decl. ¶ 4. The court also notes the timing of plaintiff’s declaration, which 20 was signed on the day on which plaintiff filed his opposition to defendants’ summary judgment 21 motion, suggests plaintiff authored the declaration for the purpose of creating, or at least 22 bolstering, a dispute of material fact. 23 For these reasons, the court STRIKES plaintiff’s declaration. 24 2. Undisputed Facts 25 On September 9, 2016, plaintiff and his wife were moving from their home in 26 Vacaville, California, to Georgia. SUF 1. Plaintiff owned numerous vehicles and had moved six 27 of his cars, including a Chevrolet Monte Carlo, out of the garage and parked them on the street 28 1 near the park located across the street from his residence to allow movers to pack and load the 2 moving truck. SUF 3–4. 3 At or about 5:00 p.m., plaintiff went to move the Monte Carlo to a vehicle 4 transport truck being used to transport his cars to Georgia. SUF 5–6. After starting the car, it 5 “balked,” and instead of stopping, plaintiff “mashed” on the gas to prevent it from stalling. SUF 6 7; Buckhalter Dep. 64:22–65:17. The car made a screeching noise and the tires spun or “jerked,” 7 leaving rubber marks on the pavement as plaintiff parked the car behind the transport truck. 8 SUF 7, 9; Buckhalter Dep. 65:3–5, 66:15–67:16, 72:14–15. Coincidentally, defendant Canady, 9 an off-duty Vacaville police officer, was at the park and observed plaintiff’s alleged “burn out” as 10 children played on the adjacent sidewalk and in the adjacent park. From Officer Canady’s 11 perspective, plaintiff’s activity violated California Vehicle Code section 23109, which prohibits 12 speed contests and exhibitions of speed.2 SUF 8; Canady Decl. ¶¶ 2–6, ECF No. 47. 13 When plaintiff exited the Monte Carlo, Canady approached and advised plaintiff 14 he was driving the vehicle in an unlawful and irresponsible manner, and that he faced possible 15 arrest for violation of section 23109. SUF 10. Canady also told plaintiff he was an off-duty 16 police officer. SUF 11. Plaintiff did not believe Canady was an off-duty police officer but did 17 apologize and assured Canady there would no further incident. SUF 12–13. A few minutes later, 18 after Canady returned to the park, Canady thought he heard plaintiff yell, “I’ll be back!,” but 19 Canady did not know whether this statement was intended as a threat toward him. SUF 14; 20 Canady Decl. ¶¶ 9–10. Canady then called the Vacaville Police Department, requested assistance 21 from a uniformed officer and recommended plaintiff be arrested for violating section 23109. SUF 22 14. 23 Approximately five minutes later, a uniformed officer, defendant Torres, arrived in 24 a police car and began talking with Canady. SUF 15. At this time, plaintiff walked across the
25 2 Subdivision (c) of Vehicle Code section 23109 provides: “A person shall not engage in a motor 26 vehicle exhibition of speed on a highway, and a person shall not aid or abet in a motor vehicle exhibition of speed on any highway.” The Vehicle Code defines a “Highway” as “a way or place 27 of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.” Cal. Veh. Code § 360. 28 1 street toward the officers. SUF 15. As plaintiff approached, Officer Torres said, “Hold on a 2 minute,” so plaintiff stopped and stood by the back of the Monte Carlo, then sat on the trunk of 3 the car until Torres approached him. SUF 16; Buckhalter Dep. 71:14–19, 72:16–23. Torres 4 recorded his interaction with plaintiff on his body camera, which was attached to his chest. SUF 5 17. Plaintiff admitted to Torres it was inappropriate to be doing burn outs on the street near the 6 park and children, explained the car had balked, and the tires spun out and apologized. SUF 18– 7 19; Buckhalter Dep. 72:24–73:7; Torres Decl. Ex. A (Body Camera Video of Incident), ECF No. 8 48, time stamp 0:00–0:25. Torres observed black tire tread marks on the roadway. SUF 20. 9 Officer Torres then told plaintiff he would issue him a citation for his reckless 10 driving, and at that point plaintiff became very angry. SUF 21. Plaintiff told Torres he “was 11 going to knock [Canady] out” after Torres finished issuing the citation. SUF 22; Buckhalter Dep. 12 73:8–74:11, 74:19–75:6. Plaintiff then said, while motioning toward Canady, “You’re going to 13 also have to arrest me, because I’m going to knock him out as soon as this is over. If you run my 14 record, you know, I don’t have no felonies, no warrants. I have a lot of assaults and he’s going to 15 get assaulted as soon as you leave.” SUF 23; Torres Decl. ¶ 8 & Ex. B (Body Camera Video of 16 Incident), ECF No. 48, time stamp 0:45–1:10. When Torres told plaintiff to sit on the curb, 17 plaintiff became increasingly agitated, refused to comply and said, “Why should I have to sit on 18 the curb?” SUF 24; Buckhalter Dep. 76:10–77:11; Torres Decl. ¶ 10 & Ex. B, time stamp 1:10– 19 1:42. Torres twice asked plaintiff to sit on the curb before plaintiff complied. SUF 25–26. 20 In light of plaintiff’s “aggressive and agitated behavior” and threats to physically 21 assault Canady, and out of concern for officer safety, Officer Torres decided to place plaintiff in 22 handcuffs. SUF 27; Torres Decl. ¶ 13. Torres ordered plaintiff to place his hands on top of his 23 head, but plaintiff did not comply. SUF 28. After several orders, plaintiff placed his hands on his 24 head, but then quickly removed them and brought them in front of his body before placing them 25 on top of his head again. SUF 28. Torres placed one handcuff on plaintiff’s right wrist while 26 plaintiff’s hands were on top of his head and proceeded to pull plaintiff’s arms behind his back to 27 secure plaintiff’s left wrist behind his back. SUF 29. Plaintiff then said, “I got a rotator cuff, you 28 see my shoulder,” and pulled his left hand from Torres’s grip and toward the front of his body. 1 SUF 30; Torres Decl. ¶ 16 & Ex. B, time stamp 2:27–2:33. Plaintiff’s movement of pulling his 2 arm from Torres’s grip caused the body camera to fly off of Torres’s body and onto the ground, 3 which caused the video to stop recording. SUF 31. Plaintiff admits he attempted to position and 4 move his arms to avoid being handcuffed. SUF 32; Buckhalter Dep. 145:8–146:14. 5 Canady observed the interaction between plaintiff and Officer Torres and became 6 concerned for Torres’s safety. SUF 34–35. Based on his observations, Canady determined he 7 needed to assist Torres in securing plaintiff in handcuffs. SUF 36. Canady approached and used 8 his right knee to lean on plaintiff’s left side to roll him onto his stomach so Torres could handcuff 9 plaintiff’s left wrist. SUF 37. Plaintiff claims Torres told Canady to leave, and Canady then left 10 the scene and had no other involvement in plaintiff’s arrest. SUF 38–39. The only force Torres 11 used during the incident was bringing plaintiff’s hands behind plaintiff’s back to secure him in 12 handcuffs. SUF 40. Torres secured plaintiff in handcuffs by 5:11 p.m. SUF 56. 13 After cuffing plaintiff’s hands behind his back, Officer Torres lifted plaintiff up to 14 place him in his police car. SUF 43. Due to plaintiff’s claimed shoulder surgery, Torres placed 15 plaintiff in two sets of handcuffs, securing one cuff from each set on plaintiff’s wrists and linking 16 the remaining cuffs from each set together to form one larger set and reduce the stress on 17 plaintiff’s shoulder. SUF 44. Torres checked the handcuffs on plaintiff’s wrists for tightness and 18 ensured each cuff was tight enough so it could not be slipped, but not too tight to affect plaintiff’s 19 circulation. SUF 44. Torres double-locked each handcuff on plaintiff’s wrists to ensure the cuffs 20 would not inadvertently become tighter. SUF 44. 21 Once secured in the police vehicle, plaintiff told Officer Torres his shoulder was 22 hurting. SUF 47; Buckhalter Dep. 91:6–23. Plaintiff did not tell anyone other than Torres about 23 his shoulder or that he was feeling pain. SUF 48; Buckhalter Dep. 91:24–92:2. Torres then took 24 plaintiff to the hospital to be examined within fifteen minutes of leaving plaintiff’s residence, 25 arriving at the hospital at 5:37 p.m. SUF 49, 56. Due to plaintiff’s prior agitated state, active 26 resistance at the scene, his threats to assault and “knock out” a police officer and his self-reported 27 history of “a lot of assaults,” Torres determined it was necessary to keep plaintiff secured in 28 handcuffs behind his back while at the hospital to avoid any violent attacks against hospital 1 personnel or himself, and to avoid further resistance from plaintiff. SUF 50; Torres Decl. ¶ 26. 2 Prior to taking X-rays of plaintiff’s shoulder, plaintiff avers a doctor twice asked Torres to 3 remove plaintiff’s handcuffs, but Torres refused both requests. Buckhalter Dep. 93:22–94:4. 4 After the X-rays were taken, the same doctor reported that plaintiff’s shoulder looked okay and 5 was just inflamed. SUF 49. Plaintiff claims the doctor suggested putting his arm in a sling, but 6 Torres would not remove the handcuffs and told the doctor he would take the sling with 7 plaintiff’s property. SUF 49; Buckhalter Dep. 94:9–16. 8 Plaintiff claims that, rather than taking plaintiff directly to jail from the hospital, 9 Officer Torres then responded to other service calls, picked up other suspects in unrelated incidents 10 and transported them to jail with plaintiff. SUF 52; Buckhalter Dep. 96:1–21. Torres kept plaintiff 11 secured in handcuffs behind his back during transport from the hospital to the jail due to his 12 aggressive, threatening and resistive behavior and his self-reported history of “a lot of assaults.” 13 SUF 53; Torres Decl. ¶ 27. Plaintiff claims he twice asked Torres to loosen the handcuffs after 14 leaving the hospital, but Torres said no because plaintiff would be in lockup soon. SUF 54; 15 Buckhalter Dep. 149:10–150:5, 151:19–23. Plaintiff further claims another two hours elapsed, 16 however, before plaintiff was booked into jail, at approximately 12:07 a.m. on September 10, 2016. 17 SUF 54–55; Buckhalter Dep. 97:3–9, 149:10–150:5. Although the computer-aided dispatch (“CAD”) 18 report of the incident shows plaintiff arrived at the Solano County Jail at 8:58 p.m., SUF 56; Torres 19 Decl. Ex. C., ECF No. 48, for purposes of the instant motion, defendants accept plaintiff’s claim 20 that he was booked into the jail at 12:07 a.m. Reply at 3. Plaintiff was thus secured in handcuffs 21 from at or about 5:11 p.m. until 12:07 a.m., slightly less than seven hours in total. Plaintiff was 22 released from jail at approximately 4:00 a.m. on September 10th. SUF 57. 23 B. Procedural Background 24 Plaintiff brings claims against defendants Torres and Canady under 42 U.S.C. 25 § 1983 and state law. Second Am. Compl. (“SAC”), ECF No. 37, ¶¶ 49–113. Specifically, 26 plaintiff alleges excessive force in violation of the Fourth Amendment, failure to protect from 27 harm in violation of the Fourteenth Amendment, battery, assault, intentional infliction of 28 emotional distress (“IIED”), negligence for infliction of emotional distress and physical harm 1 (“NIED”) and violation of the Bane Act, Cal. Civ. Code § 52.1. Id. Defendants move for 2 summary judgment on all claims. ECF No. 46. Plaintiff has filed an opposition, ECF No. 53, and 3 defendants filed a reply, ECF No. 54. 4 II. LEGAL STANDARD FOR SUMMARY JUDGMENT 5 A court will grant summary judgment “if . . . there is no genuine dispute as to any 6 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 7 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 8 resolved only by a finder of fact because they may reasonably be resolved in favor of either 9 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 10 The moving party bears the initial burden of showing the district court “there is an 11 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 12 317, 325 (1986). The burden then shifts to the nonmoving party to show “there is a genuine issue 13 of material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986) 14 (citing Fed. R. Civ. P. 56(e); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 15 (1968)). In carrying their burdens, both parties must “cit[e] to particular parts of materials in the 16 record . . .; or show[ ] that the materials cited do not establish the absence or presence of a 17 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 18 Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The nonmoving party] must do 19 more than simply show that there is some metaphysical doubt as to the material facts.”). Also, 20 “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will 21 properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. 22 In deciding a motion for summary judgment, the court draws all inferences and 23 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 24 587–88 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). “Where 25 the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 26 there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank of Ariz., 391 U.S. at 27 289). Where a genuine dispute exists, the court draws inferences in plaintiffs’ favor. Tolan v. 28 Cotton, 572 U.S. 650, 660 (2014) (per curiam). Parties may object to evidence cited to establish 1 undisputed facts. In re Oracle Corp. Sec. Litig., 627 F.3d at 385–86. A court may consider 2 evidence that would be “admissible at trial.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 3 2003) (citing Fed. R. Civ. P. 56(e); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 4 2002)). But the evidentiary standard for admission at the summary judgment stage is lenient: A 5 court may evaluate evidence in an inadmissible form if the evidentiary objections could be cured 6 at trial. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119–20 (E.D. Cal. 2006). 7 In other words, admissibility at trial depends not on the evidence’s form, but on its content. Block 8 v. City of Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. at 9 324). The party seeking admission of evidence “bears the burden of proof of admissibility.” 10 Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects 11 to the proposed evidence, the party seeking admission must direct the district court to 12 “authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and 13 exemptions, or other evidentiary principles under which the evidence in question could be 14 deemed admissible.” In re Oracle Corp. Sec. Litig., 627 F.3d at 385–86. However, courts are 15 sometimes “much more lenient” with the affidavits and documents of the party opposing 16 summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979). 17 The Supreme Court has taken care to note that district courts should act “with 18 caution in granting summary judgment,” and have authority to “deny summary judgment in a case 19 where there is reason to believe the better course would be to proceed to a full trial.” Anderson, 20 477 U.S. at 255 (citing Kennedy v. Silas Mason Co., 344 U.S. 249 (1948)). A trial may be 21 necessary “if the judge has doubt as to the wisdom of terminating the case before trial.” Gen. 22 Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1507 (9th Cir. 1995) (quoting Black v. J.I. 23 Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be the case “even in the absence of a 24 factual dispute.” Rheumatology Diagnostics Lab., Inc v. Aetna, Inc., No. 12-cv-05847-WHO, 25 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d at 572); accord Lind 26 v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001). 27 28 1 III. DISCUSSION 2 A. Plaintiff’s Conceded Claims 3 As a preliminary matter, in his opposition and at hearing, plaintiff conceded 4 summary judgment on all claims against defendant Canady and on his state law assault, IIED and 5 NIED claims as to Officer Torres. Opp’n at 2. The court accordingly GRANTS summary 6 judgment on these claims and turns to plaintiff’s remaining claims against defendant Torres. 7 B. Federal Claims 8 1. Fourth Amendment: Excessive Force 9 Defendants seek summary judgment on plaintiff’s first claim for excessive force in 10 violation of the Fourth Amendment. Mot. at 8–10. Defendants assert plaintiff’s claim fails as a 11 matter of law and that Torres also is entitled to qualified immunity. Mot. at 8–10, 13–18. The 12 court first analyzes the merits of the claim and then addresses qualified immunity in a separate 13 section below. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (it is “often beneficial” to begin 14 with first part of the qualified immunity test because it “promotes the development of 15 constitutional precedent and is especially valuable with respect to questions that do not frequently 16 arise in cases in which a qualified immunity defense is unavailable”); see also Ioane v. Hodges, 17 903 F.3d 929, 933 (9th Cir. 2018) (same (quoting Plumhoff v. Rickard, 572 U.S. 765, 774 18 (2014)). 19 The Fourth Amendment “guarantees citizens the right to be secure in their 20 persons . . . against unreasonable . . . seizures of the person.” Graham v. Connor, 490 U.S. 386, 21 394 (1989) (internal quotations omitted). “‘[R]easonableness is always the touchstone of Fourth 22 Amendment analysis,’ and reasonableness is generally assessed by carefully weighing ‘the nature 23 and quality of the intrusion on the individual’s Fourth Amendment interests against the 24 importance of the governmental interests alleged to justify the intrusion.’” County of Los Angeles 25 v. Mendez, 137 S. Ct. 1539, 1546 (2017) (alteration in original) (internal citations omitted) 26 (quoting first Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016), then Tennessee v. 27 Garner, 471 U.S. 1, 8 (1985)). 28 1 The guarantees of the Fourth Amendment include protection from the use of 2 excessive force by “law enforcement officers . . . in the course of an arrest, investigatory stop, or 3 other ‘seizure’ of a free citizen.” Graham, 490 U.S. at 395. To assess whether defendants used 4 excessive force, the court examines “whether the officers’ actions are objectively reasonable in 5 light of the facts and circumstances confronting them” and “balance[s] the nature and quality of 6 the intrusion on the individual’s Fourth Amendment interests against the countervailing 7 governmental interests at stake.” Id. at 396–97 (internal quotations omitted). In striking this 8 balance, the court “must consider the risk of bodily harm that [defendants’] actions posed to 9 [plaintiff] in light of the threat to the public that [defendants] w[ere] trying to eliminate.” Scott v. 10 Harris, 550 U.S. 372, 383 (2007). The court pays “careful attention to the facts and 11 circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether 12 the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the 13 suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 14 396 (citing Garner, 471 U.S. at 8–9). “Because this inquiry is inherently fact specific, the 15 ‘determination whether the force used to effect an arrest [or seizure] was reasonable under the 16 Fourth Amendment should only be taken from the jury in rare cases.’” Green v. City and County. 17 of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (quoting Headwaters Forest Def. v. 18 County of Humboldt, 240 F.3d 1185, 1205–06 (9th Cir. 2000), cert. granted, judgment vacated on 19 other grounds, 534 U.S. 801 (2001)). 20 “The ‘reasonableness’ of a particular use of force must be judged from the 21 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 22 Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). Further, “[t]he 23 calculus of reasonableness must embody allowance for the fact that police officers are often 24 forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly 25 evolving—about the amount of force that is necessary in a particular situation.” Id. at 396–97. 26 “Therefore, courts ‘are free to consider issues outside the three enumerated [in Graham] when 27 additional facts are necessary to account for the totality of circumstances in a given case.’” 28 1 Velazquez v. City of Long Beach, 793 F.3d 1010, 1024 (9th Cir. 2015) (alteration in original) 2 (quoting Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)). 3 Plaintiff does not dispute the reasonableness of the force used to effect his arrest. 4 See Opp’n at 2. Rather, plaintiff argues that regardless of the reasonableness of plaintiff’s initial 5 handcuffing, Officer Torres handcuffed plaintiff too tightly, did not readjust the handcuffs when 6 plaintiff complained of pain, and kept plaintiff in handcuffs for an unnecessarily long time and at 7 least two hours after plaintiff told Torres the cuffs were too tight. Opp’n at 2. Defendants argue 8 Torres’s conduct was objectively reasonable under the totality of the circumstances. Reply at 1. 9 The Ninth Circuit has held that excessively tight handcuffing can, depending on 10 the circumstances, constitute a Fourth Amendment violation. Santos v. Gates, 287 F.3d 846, 854 11 (9th Cir. 2002). Although the level at which tight handcuffing becomes unconstitutional is not 12 well-defined, plaintiffs have raised triable issues of fact when the handcuffs caused demonstrable 13 injury or visible pain, or when officers ignored or refused requests to loosen the handcuffs once 14 alerted that the handcuffs were too tight. See, e.g., Wall v. County of Orange, 364 F.3d 1107, 15 1109–12 (9th Cir. 2004) (arrestee suffered nerve damage due to continued restraint in tight 16 handcuffs); LaLonde v. County of Riverside, 204 F.3d 947, 960 (9th Cir. 2000) (arrestee 17 complained to officer who refused to loosen handcuffs); Palmer v. Sanderson, 9 F.3d 1433, 18 1434–36 (9th Cir. 1993) (officer ignored arrestee’s complaints despite his handcuffed wrists 19 being visibly discolored); Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989) (arrestee had 20 bruises on her wrists). “The issue of tight handcuffing is usually fact-specific and is likely to turn 21 on the credibility of the witnesses.” LaLonde, 204 F.3d at 960. Thus, summary judgment is 22 generally not appropriate. Id. But see Luong v. City & County of San Francisco, No. C11–5661 23 MEJ, 2012 WL 5869561, at *5 (N.D. Cal. Nov. 19, 2012) (finding no triable issue of fact when 24 plaintiff’s “only evidence to support his excessive force claim [wa]s his testimony that the 25 handcuffs were too tight and caused him a slight abrasion”); Shaw v. City of Redondo Beach, 26 No. CV 05-0481 SVW (FMOx), 2005 WL 6117549, at *9 (C.D. Cal. Aug. 23, 2005) (granting 27 defendants summary judgment when arrestee “did not repeatedly request to have the handcuffs 28 1 removed or loosened, was not in any demonstrable pain, did not complain of pain or inform [the 2 officer] of any pre-existing injuries, and was not pushed or shoved”). 3 Viewing the facts in the light most favorable to plaintiff, a reasonable jury could 4 find the manner in which Torres handcuffed plaintiff constituted unreasonable force. As noted 5 above, plaintiff testified at deposition that he twice requested Torres loosen the handcuffs while in 6 the patrol vehicle, yet Torres refused both requests. Buckhalter Dep. 149:10–17, 149:22–50:5, 7 151:4–18. Plaintiff also testified, and defendants accept as true for purposes of this motion, that 8 Torres kept plaintiff secured in handcuffs for approximately seven hours despite plaintiff’s 9 complaints, from the time of his arrest at or about 5:11 p.m. until Torres booked plaintiff into jail 10 at or about 12:07 a.m. Reply at 3; Buckhalter Dep. 97:6–9; Torres Decl. ¶¶ 25, 27. Finally, 11 plaintiff and his wife testified he sustained more severe injuries to his right hand and wrist from 12 the handcuffing; specifically they say plaintiff suffered a “handcuff scar” on the base of his 13 thumb, which was still visible at the time of plaintiff’s deposition more than two years after the 14 incident, and possibly permanent nerve damage. Buckhalter Dep. 135:1–13, 153:18–54:20, 15 167:16–68:5, 170:7–11; Regina Dep. 66:20–67:2, ECF No. 49. Plaintiff described the injury as a 16 “pinched nerve” that causes his right hand and wrist to lose feeling and fall “asleep” whenever 17 relaxed; he testified he experiences numbness and throbbing in his right hand. Buckhalter Dep. 18 154:10–20, 167:16–68:5, 169:14–70:4; see also Regina Dep. 64:10–17 (testifying plaintiff, her 19 husband, “says [his hand] feels like it’s going dead . . . . He says it feels like it’s kind of a 20 numbness and then it comes back [to life]”). Although plaintiff has not provided medical records 21 or other evidence to supplement the statements made in his deposition, a reasonable jury could 22 find that plaintiff’s injuries, coupled with the fact that he twice asked Torres to adjust the 23 handcuffs, suffice to demonstrate a constitutional injury. 24 Defendants contend this case is distinguishable from those in which a genuine 25 issue of fact remained on the issue of handcuffing because plaintiff here behaved in an angry and 26 agitated manner, threatened violence against the officers, did not comply with Torres’s order and 27 physically resisted efforts to handcuff him. Reply at 2–3. While undisputed, these facts 28 pertaining to plaintiff’s pre-arrest conduct do not justify handcuffing plaintiff so tightly that he 1 suffered pain and injury to his hands and wrists, or justify Torres’s refusal to loosen the handcuffs 2 once plaintiff was secured in the patrol vehicle and had complained of the pain. Notably, 3 defendants have not provided evidence of plaintiff’s making further threats, physically resisting 4 or engaging in other violent or noncompliant conduct after his arrest. 5 At hearing, defense counsel also argued this case is distinguishable from other 6 previously decided cases because Torres checked the handcuffs on plaintiff’s wrists for tightness 7 to ensure the handcuffs did not cut off plaintiff’s circulation or cause pain. See SUF 44. 8 Defendants present no evidence, however, showing that after plaintiff complained about the 9 tightness of the handcuffs, Torres loosened the handcuffs, checked their tightness or otherwise 10 determined the cuffs were appropriately tight during the nearly seven hours plaintiff was 11 handcuffed. Accordingly, “a reasonable jury could find that [Torres] used an unreasonable 12 amount of force in handcuffing [plaintiff] and as a result violated h[is] Fourth Amendment 13 rights.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003); see Wall, 364 F.3d at 1112 14 (holding overly tight handcuffing can constitute excessive force when it causes injury or when 15 officers ignore plaintiff’s complaints about handcuffs being too tight). 16 2. Fourteenth Amendment: Failure to Protect from Harm 17 Although plaintiff asserts separate Fourth and Fourteenth Amendment claims 18 against defendant Torres in the Second Amended Complaint, ECF No. 37, plaintiff’s opposition 19 makes clear he bases both claims on the manner in which Torres secured plaintiff in handcuffs. 20 Specifically, plaintiff contends Torres violated plaintiff’s Fourth and Fourteenth Amendment 21 rights by refusing to loosen plaintiff’s handcuffs after plaintiff put Torres on notice that the 22 handcuffs were too tight and by keeping plaintiff in handcuffs significantly longer than necessary. 23 Opp’n at 3. As with plaintiff’s Fourth Amendment claim, defendants argue Torres’s conduct was 24 objectively reasonable under the totality of the circumstances. Reply at 3–5. 25 Federal courts analyze constitutional claims brought by pretrial detainees 26 challenging their conditions of confinement under the Due Process Clause of the Fourteenth 27 Amendment rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment. 28 Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 1 (9th Cir. 2003) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Bell, 2 441 U.S. at 535 & n.16). The Eighth Amendment’s deliberate indifference standard, however, 3 sets the minimum standard of care for determining the rights of pre-trial detainees. Or. Advocacy 4 Ctr., 322 F.3d at 1120 (citing cases). To establish liability against an individual defendant under 5 the Fourteenth Amendment for failure to protect from harm, a plaintiff must show: 6 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 7 (2) Those conditions put the plaintiff at substantial risk of suffering 8 serious harm; 9 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances 10 would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and 11 (4) By not taking such measures, the defendant caused the plaintiff's 12 injuries. 13 Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (footnote omitted). 14 Notably, following the Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 15 (2015), the court applies the same objective reasonableness standard to a plaintiff’s Fourteenth 16 Amendment claim as to his Fourth Amendment claim. Robinson v. County of Shasta, No. 2:14- 17 CV-02910-KJM-KJN, 2019 WL 1931879, at *8; see also Castro, 833 F.3d at 1071 (“With 18 respect to the third element, the defendant’s conduct must be objectively unreasonable . . . .” 19 (citing Kingsley, 135 S. Ct. at 2473). 20 As described above, a reasonable jury could find Officer Torres’s use of force was 21 objectively unreasonable. Therefore, the court cannot determine defendant Torres is entitled to 22 judgment as a matter of law on plaintiff’s Fourteenth Amendment claim for failure to protect 23 from harm. 24 3. Qualified Immunity 25 Defendants contend Torres is entitled to qualified immunity on plaintiff’s Fourth 26 Amendment excessive force and Fourteenth Amendment failure to protect claims. Mot. at 16–18; 27 28 1 Reply at 6–8. “Qualified immunity is a judge-made doctrine3 designed to ‘balance[ ] two 2 important interests—the need to hold public officials accountable when they exercise power 3 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 4 perform their duties reasonably.’” Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011) 5 (alteration in original) (quoting Pearson, 555 U.S. at 231). The doctrine is intended to “give[ ] 6 government officials breathing room to make reasonable but mistaken judgments about open 7 legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). 8 To determine whether qualified immunity applies, the court follows a two-pronged 9 test first articulated in Saucier v. Katz, 533 U.S. 194, 201 (2001). Pearson, 555 U.S. at 232 10 (citing Saucier, 533 U.S. at 201). Under that test, “[q]ualified immunity shields federal and state 11 officials from money damages unless a plaintiff pleads facts showing (1) that the official violated 12 a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the 13 challenged conduct.” al-Kidd, 563 U.S. at 735 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 14 (1982). 15 “[U]nder either prong, courts may not resolve genuine disputes of fact in favor of 16 the party seeking summary judgment.” Tolan, 572 U.S. at 656 (citing cases).4 “This is not a rule 17 specific to qualified immunity; it is simply an application of the more general rule that a ‘judge’s 18 function’ at summary judgment is not ‘to weigh the evidence and determine the truth of the 19 matter but to determine whether there is a genuine issue for trial.’” Id. (quoting Anderson, 20 477 U.S. at 249); see also Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005) (“‘[T]he ordinary 21 framework for deciding motions for summary judgment’ applies to motions for summary 22 judgment based on official immunity.”) (alteration in original) (citing Butler v. San Diego Dist. 23 Atty.’s Office, 370 F.3d 956, 963 (9th Cir. 2004)). In particular, in determining the established 24 law, the court must take care not to define either the right at issue, or the defendant’s conduct for 25 3 In light of the judicial origins of the doctrine, the Supreme Court has observed “[a]ny change 26 should come from this Court, not Congress.” Pearson, 555 U.S. at 234. 27 4 In Tolan, the Fifth Circuit erred by failing “to view the evidence at summary judgment in the light most favorable to Tolan with respect to the central facts of this case.” 572 U.S. at 658. 28 1 that matter, in a manner that impermissibly resolves factual disputes. Tolan, 572 U.S. at 657 2 (“[C]ourts must take care not to define a case’s ‘context’ in a manner that imports genuinely 3 disputed factual propositions.”) (citing Brosseau v. Haugen, 543 U.S. 194, 195 (2004) (per 4 curiam)). 5 Courts may “exercise their sound discretion in deciding which of the two prongs of 6 the qualified immunity analysis should be addressed first in light of the circumstances in the 7 particular case at hand.” Pearson, 555 U.S. at 236. Here, the court has exercised its discretion by 8 first analyzing the merits prong as detailed above. Therefore, whether qualified immunity applies 9 to Torres turns on the application of the second prong of the test. 10 a. Clearly Established Law 11 Turning to the second prong of the qualified immunity analysis, the court notes 12 that clearly established law must be defined with a “high ‘degree of specificity.’” District of 13 Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 14 (2015) (per curiam)). This standard is “demanding”; the “legal principle [at issue] must have a 15 sufficiently clear foundation in then-existing precedent.” Id. at 589. It “must be settled law, 16 which means it is dictated by controlling authority or a robust consensus of cases of persuasive 17 authority,” rather than merely “suggested by then-existing precedent.” Id. at 589–90 (internal 18 quotations and citations omitted). 19 While “a case directly on point” is not required “for a right to be clearly 20 established, existing precedent must have placed the statutory or constitutional question beyond 21 debate,” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 22 551 (2017)), and must “‘squarely govern[ ]’ the specific facts at issue.” Id. at 1153 (citing 23 Mullenix, 136 S. Ct. at 309); see also Pike v. Hester, 891 F.3d 1131, 1141 (9th Cir. 2018) (“An 24 exact factual match is not required . . . .” (citing Calabretta v. Floyd, 189 F.3d 808, 812 (9th Cir. 25 1999)). “The rule’s contours must be so well defined that it is ‘clear to a reasonable officer that 26 his conduct was unlawful in the situation he confronted.’” Wesby, 138 S. Ct. at 590 (quoting 27 Saucier, 533 U.S. at 202). Thus, “[t]he dispositive question is ‘whether the violative nature of 28 1 particular conduct is clearly established.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) 2 (quoting Mullenix, 136 S. Ct. at 308) (emphasis and alteration in original). 3 “Precedent involving similar facts can help move a case beyond the otherwise 4 ‘hazy border between excessive and acceptable force’ and thereby provide an officer notice that a 5 specific use of force is unlawful.” Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 6 312). Although “‘general statements of the law are not inherently incapable of giving fair and 7 clear warning to officers,’ . . . . constitutional guidelines [that] seem inapplicable or too remote” 8 will not suffice. Id. (quoting White, 137 S. Ct. at 552). Accordingly, “a court must ask whether it 9 would have been clear to a reasonable officer that the alleged conduct ‘was unlawful in the 10 situation he confronted.’” Ziglar, 137 S. Ct. at 1867 (quoting Saucier, 533 U.S. at 202). 11 In certain cases, qualified immunity may not be available to a defendant even if a 12 new set of circumstances is presented to the court through a civil rights claim. “[T]here can be 13 the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even 14 though existing precedent does not address similar circumstances.” Wesby, 138 S. Ct. at 590 15 (citing Brosseau, 543 U.S. at 199); see also Ziglar, 137 S. Ct. at 1867 (“[A]n officer might lose 16 qualified immunity even if there is no reported case ‘directly on point.’ But ‘in the light of pre- 17 existing law,’ the unlawfulness of the officer’s conduct ‘must be apparent’” (internal citation 18 omitted) (quoting first al-Kidd, 563 U.S. at 741, then Anderson, 483 U.S. at 640)). In some 19 circumstances “a general constitutional rule already identified in the decisional law may apply 20 with obvious clarity to the specific conduct in question, even though ‘the very action in question 21 has [not] previously been held unlawful.’” Bonivert v. City of Clarkston, 883 F.3d 865, 872 (9th 22 Cir. 2018) (alteration in original) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). 23 Because resolving whether the asserted federal right was clearly established 24 presents a pure question of law, the court draws on its “full knowledge” of relevant precedent 25 rather than restricting its review to cases identified by plaintiff. See Elder v. Holloway, 510 U.S. 26 510, 514–16 (1994) (citing Davis v. Scherer, 468 U.S. 183, 192 n.9 (1984)). In doing so, the 27 court “first look[s] to binding [Supreme Court or Ninth Circuit] precedent to determine whether a 28 law was clearly established.” Ioane, 903 F.3d at 937 (citing Chappell v. Mandeville, 706 F.3d 1 1052, 1056 (9th Cir. 2013)); see also Carrillo v. County of Los Angeles, 798 F.3d 1210, 1221 2 n.13 (9th Cir. 2015) (noting that in Hope v. Pelzer, 536 U.S. 730, 741–45 (2002), the Supreme 3 Court looked to “binding circuit precedent” to determine clearly established law, and the Court 4 has not yet “overruled Hope or called its exclusive reliance on circuit precedent into question”). 5 If no binding precedent “is on point, [the Ninth Circuit] may consider other decisional law.” 6 Chappell, 706 F.3d at 1056. Ultimately, “the prior precedent must be ‘controlling’—from the 7 Ninth Circuit or Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside 8 the relevant jurisdiction.” Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (citing 9 Wilson v. Layne, 526 U.S. 603, 617 (1999)). That said, the Ninth Circuit has approved of the use 10 of unpublished and district court decisions to inform qualified immunity analysis in conjunction 11 with controlling authority. Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002) (“We have held 12 that unpublished decisions of district courts may inform our qualified immunity analysis.” (citing 13 Prison Legal News v. Cook, 238 F.3d 1145, 1152 (9th Cir. 2001)). 14 b. Discussion 15 Defendants’ qualified immunity argument focuses on plaintiff’s pre-arrest 16 conduct: his agitated state, threats to assault police officers, failure to comply with orders to sit on 17 the curb and put his hands on his head and physical resistance to handcuffing. Mot. at 16–17; 18 Reply at 8. Defendants contend no clearly established law prohibited them from using tight 19 handcuffs in these circumstances. Mot. at 16–17; Reply at 5–6. Plaintiff counters that Ninth 20 Circuit precedent “put Defendant Torres on clear notice” that his unnecessarily tight handcuffing 21 and refusal to loosen plaintiff’s handcuffs violated plaintiff’s constitutional rights. Opp’n at 3–5. 22 Applying the principles described above to this case, by September 2016 it was 23 clearly established that excessively tight handcuffing, particularly when an arrestee complains 24 about the tightness of the handcuffs, can constitute objectively unreasonable force in violation of 25 the Fourth and Fourteenth Amendments. See Wall, 364 F.3d at 1112 (citing Alexander v. County 26 of Los Angeles, 64 F.3d 1315, 1322–23 (9th Cir. 1995)); Meredith, 342 F.3d at 1061, 1063–64; 27 LaLonde, 204 F.3d at 960; Alexander, 64 F.3d at 1322–23. 28 1 In Wall, the court found the officer in that case violated a clearly established 2 constitutional right because he not only “used excessive force in making the arrest” but also by 3 “continuing the restraint by handcuffs that hurt and damaged [the plaintiff’s] wrist.” 364 F.3d at 4 1112. The plaintiff was complying with the officer’s order to leave the scene when the officer 5 “grabbed [the plaintiff] by his right wrist and bent and twisted his arm, causing pain,” handcuffed 6 the plaintiff’s hands “extremely tight” behind his back, picked the plaintiff up by his handcuffed 7 arms, threw the him “upside down” and “head first” into a patrol car and left the plaintiff waiting 8 in the patrol car for about twenty minutes. Id. at 1109–10. Similarly, in LaLonde, the court held 9 the officers were not entitled to qualified immunity when they required the plaintiff, despite 10 having “already surrendered” and being “under control,” to sit handcuffed on a couch with pepper 11 spray burning his face for twenty to thirty minutes, during which time the officers refused to 12 loosen the handcuffs despite the plaintiff telling them the handcuffs were cutting off his 13 circulation and the pepper spray was burning. 204 F.3d at 952, 960; see also Meredith, 342 F.3d 14 at 1060, 1061 (officer not entitled to qualified immunity on allegation of overly tight handcuffing 15 of woman detained during execution of search warrant when officer did not respond for thirty 16 minutes to plaintiff’s complaints handcuffs were too tight and causing pain); Alexander, 64 F.3d 17 at 1322–23 (holding qualified immunity defense not available to officers when (1) officers 18 handcuffed plaintiff for forty-five to sixty minutes, (2) waited thirty-five to forty minutes before 19 adjusting handcuffs, despite plaintiff’s repeated requests that handcuffs be removed or loosened 20 because he was dialysis patient, and (3) plaintiff’s hands still swollen and numb nine months after 21 incident); Palmer, 9 F.3d at 1436 (affirming denial of qualified immunity when officer “fastened 22 [the plaintiff’s] handcuffs so tightly around his wrist that they caused [the plaintiff] pain and left 23 bruises that lasted for several weeks” and “presented no evidence that would justify handcuffing 24 [the plaintiff] so tightly that he suffered pain and bruises, or to justify his refusal to loosen the 25 handcuffs after [the plaintiff] complained of the pain”). 26 Given the clearly established law regarding excessively tight handcuffing, a 27 reasonable officer in Torres’s position would have known that to place and keep plaintiff in 28 handcuffs so tight they caused him unnecessary pain, despite plaintiff’s requests to loosen the 1 handcuffs, violated plaintiff’s Fourth and Fourteenth Amendment rights. Plaintiff asserts he was 2 handcuffed with his arms behind his back for almost seven hours, despite making two requests to 3 loosen the handcuffs. SUF 54–56; Opp’n at 3, 4. Further, although plaintiff initially resisted his 4 arrest, nothing in the record suggests he was not compliant once Torres secured him in the patrol 5 vehicle. See SUF 43–57. Based on these facts, and drawing all inferences in favor of plaintiff as 6 the non-moving party, the court concludes Torres is not entitled to qualified immunity. 7 The court DENIES summary judgment as to plaintiff’s § 1983 claims against 8 Torres. 9 C. State Law Claims 10 Defendants contend plaintiff cannot withstand summary judgment on his state law 11 claims for battery, assault, IIED, NIED or violation of California Civil Code section 52.1, the 12 Bane Act. Mot. at 15–18. Defendants primarily argue these state law claims fail because 13 defendant Torres acted reasonably. Id. at 15–16. Plaintiff concedes his assault, IIED and NIED 14 claims, but otherwise disputes defendants’ contentions. Opp’n at 2, 6–7. 15 1. Battery 16 Under California law, a claim for battery by a peace officer requires the plaintiff to 17 show: “(1) the defendant intentionally touched the plaintiff, (2) the defendant used unreasonable 18 force to arrest, prevent the escape of, or overcome the resistance of the plaintiff, (3) the plaintiff 19 did not consent to the use of that force, (4) the plaintiff was harmed, and (5) the defendant’s use 20 of unreasonable force was a substantial factor in causing the plaintiff’s harm.” Pryor v. City of 21 Clearlake, 877 F. Supp. 2d 929, 952 (N.D. Cal. 2012) (citing Judicial Council of California, Civil 22 Jury Instruction 1305; Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998)). 23 Accordingly, “[p]laintiff must prove unreasonable force as an element of the tort.” Edson, 24 63 Cal. App. 4th at 1273. The unreasonable force determination is “analyzed under the 25 reasonableness standard of the Fourth Amendment to the United States Constitution.” Munoz v. 26 City of Union City, 120 Cal. App. 4th 1077, 1102 & n.6 (2004) (citing Graham, 490 U.S. at 395), 27 overruled on other grounds, Hayes v. County of San Diego, 57 Cal. 4th 622, 636 (2013). 28 1 Defendants contend plaintiff cannot prevail on his battery claim because Torres 2 used reasonable force under the totality of the circumstances. Mot. at 18. But as stated above, a 3 reasonable jury could find defendants’ conduct was unreasonable. The court therefore DENIES 4 defendants’ motion for summary judgment on plaintiff’s battery claim against Torres. 5 2. Assault 6 As noted, plaintiff concedes his assault claims against both Canady and Torres. 7 Opp’n at 2. Therefore, the court GRANTS summary judgment as to these claims. 8 3. IIED 9 Plaintiff also concedes his IIED claims against both Canady and Torres. Opp’n 10 at 2. Therefore, the court GRANTS summary judgment as to these claims. 11 4. NIED 12 Plaintiff additionally concedes his NIED claims against both Canady and Torres. 13 Opp’n at 2. Therefore, the court GRANTS summary judgment as to these claims as well. 14 5. Bane Act 15 Defendants argue the court should grant summary judgment on plaintiff’s 16 section 52.1 claim against defendant Torres because the evidence establishes Torres did not 17 violate plaintiff’s civil rights under the Fourth or Fourteenth Amendments. Mot. at 21–22. 18 The Bane Act “provides a cause of action for violations of a plaintiff’s state or 19 federal civil rights committed by threats, intimidation, or coercion.” Reese v. County of 20 Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (internal quotations omitted) (quoting 21 Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014)). “Claims under section 22 52.1 may be brought against public officials who are alleged to interfere with protected rights, 23 and qualified immunity is not available for those claims.” Id. at 1040–41 (citing Venegas v. 24 County of Los Angeles, 153 Cal. App. 4th 1230, 1246 (2007)). To establish a Bane Act claim, a 25 plaintiff must prove “(1) a violation of a ‘state or federal constitutional or legal right’; and (2) that 26 the violation was achieved through ‘threats, intimidation, or coercion.’” Inman v. Anderson, 27 294 F. Supp. 3d 907, 928 (N.D. Cal. 2018) (quoting Allen v. City of Sacramento, 234 Cal. App. 28 4th 41, 67 (2015)). 1 Although there has been some lack of clarity regarding whether the Bane Act 2 requires more than a finding of a constitutional violation, the Ninth Circuit recently adopted the 3 position that the Bane Act also requires “a specific intent to violate the arrestee’s right to freedom 4 from unreasonable seizure.” Reese, 888 F.3d at 1043 (internal quotations omitted) (quoting 5 Cornell v. City & County of San Francisco, 17 Cal. App. 5th 766, 801 (2017)). “Evidence simply 6 showing that an officer’s conduct amounts to a constitutional violation under an ‘objectively 7 reasonable’ standard is insufficient to satisfy the additional intent requirement under the Bane 8 Act.” Losee v. City of Chico, 738 F. App’x 398, 401 (9th Cir. June 18, 2018) (citing Reese, 9 888 F.3d at 1045). “Rather, [the plaintiff] must show that [the officer] ‘intended not only the 10 force, but its unreasonableness, its character as more than necessary under the circumstances.’” 11 Id. (quoting Reese, 888 F.3d at 1045). Here, plaintiff proffered no such evidence. 12 Accordingly, the court GRANTS summary judgment as to this claim against 13 Torres. See id. 14 6. Discretionary Immunity 15 Defendants also argue California Government Code sections 820.2 and 820.8 16 afford defendant Torres immunity for his assessment of the situation, his assessment that plaintiff 17 posed a safety risk and his tactical decisions, including the decision to handcuff plaintiff. Mot. 18 at 22. Under California law, however, discretionary immunity applies only to “deliberate and 19 considered policy decisions,” not operational decisions such as “a bus driver’s decision not to 20 intervene in one passenger’s violent assault against another” or “a police officer’s negligent 21 conduct of a traffic investigation once undertaken.” Caldwell v. Montoya, 10 Cal. 4th 972, 981– 22 82 (1995) (emphasis in original) (citations omitted). Further, a police officer does not have 23 discretionary immunity from liability for the use of unreasonable force in making an arrest or 24 overcoming resistance to it. Conway v. County of Tuolumne, 231 Cal. App. 4th 1005, 1015 25 (2014) (citing Scruggs v. Haynes, 252 Cal. App. 2d 256, 264–68 (1967)). Rather, “immunity 26 under section 820.2 turns on the reasonableness of the conduct complained of, not simply whether 27 or not a public employee exercised his or her discretion.” Stoddard-Nunez v. City of Hayward, 28 No. 3:13-cv-4490 KAW, 2013 WL 6776189, at *10 (N.D. Cal. Dec. 23, 2013). 1 A reasonable jury could find Torres used an unreasonable amount of force in 2 handcuffing plaintiff. Accordingly, sections 820.2 and 820.8 do not afford Torres immunity. 3 IV. CONCLUSION 4 As set forth above, the court GRANTS IN PART and DENIES IN PART the 5 motion for summary judgment brought by defendants Roger Canady and Daniel Torres. 6 Plaintiff’s federal claims under 42 U.S.C. § 1983 and his state law battery claim against defendant 7 Torres will proceed to trial. 8 The court sets October 4, 2019 at 9 a.m. as the date for the final pretrial 9 conference. The parties’ joint final pretrial conference statement is due fourteen (14) days prior 10 to the final pretrial conference. 11 IT IS SO ORDERED. 12 DATED: August 7, 2019. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28