1 WO MW 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Erick John Dodakian, No. CV-21-01184-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Andrew Butters, et al., 13 Defendants.
14 15 Defendant Andrew Butters has filed a Motion for Summary Judgment (Doc. 56). 16 The Motion is fully briefed (Docs. 64-65),1 and as follows, it will be granted. 17 I. Background 18 Plaintiff Erick John Dodakian brought this pro se civil rights action pursuant to 42 19 U.S.C. § 1983 and state law. (Doc. 1.) On October 27, 2021, Dodakian filed a seven-count 20 First Amended Complaint (Doc. 13) against the City of Tempe, the Tempe Police 21 Department, Tempe Police Officer Andrew Butters, and several fictitiously named parties, 22 alleging claims arising from his arrest on July 8, 2019. 23 Defendants subsequently moved to dismiss the amended complaint for failure to 24 state a claim, and on March 14, 2022, all counts were dismissed except for Dodakian’s 25 Fourth Amendment excessive force claim against Butters. (Docs. 14, 19.) 26 . . . . 27 28 1 Plaintiff was informed of his rights and obligations for opposing a motion for summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc). (Doc. 61.) 1 II. Legal Standards 2 A. Summary Judgment 3 A court must grant summary judgment “if the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 5 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 6 movant bears the initial responsibility of presenting the basis for its motion and identifying 7 those portions of the record, together with affidavits, if any, that it believes demonstrate 8 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 9 If the movant fails to carry its initial burden of production, the nonmovant need not 10 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 11 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 12 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 13 contention is material, i.e., a fact that might affect the outcome of the suit under the 14 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 15 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 17 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 18 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 19 it must “come forward with specific facts showing that there is a genuine issue for trial.” 20 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 21 citation omitted); see Fed. R. Civ. P. 56(c)(1). 22 At summary judgment, the court’s function is not to weigh the evidence and 23 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 24 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 25 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 26 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 27 . . . . 28 . . . . 1 B. Qualified Immunity 2 Government officials are entitled to qualified immunity from civil damages under 3 42 U.S.C. § 1983 unless (1) the alleged facts, taken in the light most favorable to the party 4 claiming injury, show the official’s conduct violated a constitutional right, and (2) that right 5 was “clearly established” at the time of the violation, such that a reasonable official would 6 have known his conduct was unlawful under the circumstances. District of Columbia v. 7 Wesby, 583 U.S. ___, 138 S. Ct. 577, 589 (2018); see Pearson v. Callahan, 555 U.S. 223, 8 230-32, 235-36 (2009) (courts may address either prong first depending on the 9 circumstances in the case); Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 10 While there need not have been “a case directly on point” that mirrors the specific facts, 11 “clearly established” requires that existing law placed the unlawfulness of the officer’s 12 conduct “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations 13 omitted); see Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1167 (9th Cir. 2011) (“the 14 relevant inquiry is whether the state of the law at the time of the official conduct 15 complained of was such as to give the defendants ‘fair warning’ that their conduct was 16 unconstitutional”). 17 C. Fourth Amendment Excessive Force 18 The Fourth Amendment’s safeguard against unreasonable seizures prohibits the 19 use of excessive force by law enforcement officers during an arrest. Graham v. Connor, 20 490 U.S. 386, 395 (1989). To determine whether a Fourth Amendment violation has 21 occurred, courts evaluate whether the officer’s use of force was “‘objectively reasonable’ 22 in light of the facts and circumstances confronting [the officer],” considering: (1) the nature 23 and gravity of the intrusion—i.e., the type and amount of force inflicted; (2) the 24 governmental interests at stake—i.e., the officer’s need for the force used, taking into 25 account the severity of the crime, the threat to safety posed by the plaintiff, and whether 26 the plaintiff was actively resisting or attempting to evade arrest; and (3) whether on 27 balance, the intrusion was justified by the governmental interests. Graham, 490 U.S. at 28 396-97; Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); 1 Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003). “The ‘reasonableness’ of a 2 particular use of force [is] judged from the perspective of a reasonable officer on the scene, 3 rather than with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, and “[w]here an 4 officer’s particular use of force is based on a mistake of fact, [courts consider] whether a 5 reasonable officer would have or should have accurately perceived that fact,” Torres, 648 6 F.3d at 1124. 7 III.
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1 WO MW 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Erick John Dodakian, No. CV-21-01184-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Andrew Butters, et al., 13 Defendants.
14 15 Defendant Andrew Butters has filed a Motion for Summary Judgment (Doc. 56). 16 The Motion is fully briefed (Docs. 64-65),1 and as follows, it will be granted. 17 I. Background 18 Plaintiff Erick John Dodakian brought this pro se civil rights action pursuant to 42 19 U.S.C. § 1983 and state law. (Doc. 1.) On October 27, 2021, Dodakian filed a seven-count 20 First Amended Complaint (Doc. 13) against the City of Tempe, the Tempe Police 21 Department, Tempe Police Officer Andrew Butters, and several fictitiously named parties, 22 alleging claims arising from his arrest on July 8, 2019. 23 Defendants subsequently moved to dismiss the amended complaint for failure to 24 state a claim, and on March 14, 2022, all counts were dismissed except for Dodakian’s 25 Fourth Amendment excessive force claim against Butters. (Docs. 14, 19.) 26 . . . . 27 28 1 Plaintiff was informed of his rights and obligations for opposing a motion for summary judgment pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc). (Doc. 61.) 1 II. Legal Standards 2 A. Summary Judgment 3 A court must grant summary judgment “if the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 5 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 6 movant bears the initial responsibility of presenting the basis for its motion and identifying 7 those portions of the record, together with affidavits, if any, that it believes demonstrate 8 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 9 If the movant fails to carry its initial burden of production, the nonmovant need not 10 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 11 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 12 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 13 contention is material, i.e., a fact that might affect the outcome of the suit under the 14 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 15 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 17 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 18 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 19 it must “come forward with specific facts showing that there is a genuine issue for trial.” 20 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 21 citation omitted); see Fed. R. Civ. P. 56(c)(1). 22 At summary judgment, the court’s function is not to weigh the evidence and 23 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 24 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 25 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 26 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 27 . . . . 28 . . . . 1 B. Qualified Immunity 2 Government officials are entitled to qualified immunity from civil damages under 3 42 U.S.C. § 1983 unless (1) the alleged facts, taken in the light most favorable to the party 4 claiming injury, show the official’s conduct violated a constitutional right, and (2) that right 5 was “clearly established” at the time of the violation, such that a reasonable official would 6 have known his conduct was unlawful under the circumstances. District of Columbia v. 7 Wesby, 583 U.S. ___, 138 S. Ct. 577, 589 (2018); see Pearson v. Callahan, 555 U.S. 223, 8 230-32, 235-36 (2009) (courts may address either prong first depending on the 9 circumstances in the case); Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 10 While there need not have been “a case directly on point” that mirrors the specific facts, 11 “clearly established” requires that existing law placed the unlawfulness of the officer’s 12 conduct “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations 13 omitted); see Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1167 (9th Cir. 2011) (“the 14 relevant inquiry is whether the state of the law at the time of the official conduct 15 complained of was such as to give the defendants ‘fair warning’ that their conduct was 16 unconstitutional”). 17 C. Fourth Amendment Excessive Force 18 The Fourth Amendment’s safeguard against unreasonable seizures prohibits the 19 use of excessive force by law enforcement officers during an arrest. Graham v. Connor, 20 490 U.S. 386, 395 (1989). To determine whether a Fourth Amendment violation has 21 occurred, courts evaluate whether the officer’s use of force was “‘objectively reasonable’ 22 in light of the facts and circumstances confronting [the officer],” considering: (1) the nature 23 and gravity of the intrusion—i.e., the type and amount of force inflicted; (2) the 24 governmental interests at stake—i.e., the officer’s need for the force used, taking into 25 account the severity of the crime, the threat to safety posed by the plaintiff, and whether 26 the plaintiff was actively resisting or attempting to evade arrest; and (3) whether on 27 balance, the intrusion was justified by the governmental interests. Graham, 490 U.S. at 28 396-97; Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); 1 Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003). “The ‘reasonableness’ of a 2 particular use of force [is] judged from the perspective of a reasonable officer on the scene, 3 rather than with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, and “[w]here an 4 officer’s particular use of force is based on a mistake of fact, [courts consider] whether a 5 reasonable officer would have or should have accurately perceived that fact,” Torres, 648 6 F.3d at 1124. 7 III. Facts2 8 On July 8, 2019, at about 6:30 p.m., Tempe Police Officer Butters responded to a 9 call from Springtree Condominiums reporting a man that “look[ed] like he [was] on drugs” 10 who was digging through a dumpster and “throwing trash everywhere.” (DSOF ¶¶ 1-5.) 11 When Butters arrived at the apartment complex, a resident directed him to the dumpster, 12 where he encountered Dodakian and a large assortment of items scattered on the ground.3 13 (DSOF ¶¶ 6-7; Video 01:11-01:17.) 14 As Butters began to approach closer, he told Dodakian to “grab a seat” and “sit 15 down” on the curb. Dodakian continued to move around, stating “I’m going over here” 16 and “I’m going over to my stuff”; Butters instructed him again to “sit down” and “grab a 17 2 Butters has filed a Statement of Facts (DSOF) (Doc. 57) and supporting exhibits 18 that include two video recordings (DSOF Ex. D and F), one from Butters’ body camera (Video 00:00-35:55) and one from Tempe Police Officer Matthew Warbington’s body 19 camera. Dodakian appears to argue that the videos have been doctored (see e.g., Doc. 64 at 4 ¶¶ 11-23), but has not identified any portion of the videos that has been altered, nor are 20 there any apparent breaks, sudden jumps, or other indications that the video has been altered. The facts are therefore recounted “in the light depicted by the videotape[s],” Scott 21 v. Harris, 550 U.S. 372, 380 (2007), but any factual ambiguities in the videos are viewed 22 in Dodakian’s favor, Blankenhorn v. City of Orange, 485 F.3d 463, 468 n.1 (9th Cir. 2007). Dodakian has filed a document entitled “Plaintiff’s Statement of Facts” (Doc. 64) 23 that is largely comprised of incomprehensible arguments, evidentiary objections, and conclusory facts that are unsupported by any evidence in the record. Dodakian did not file 24 a controverting statement of facts as required by the local rules and discussed in the Court’s Rand Order. The Court will therefore consider Butters’ relevant supported facts undisputed 25 unless they are clearly controverted by Dodakian’s first-hand verified allegations or other evidence in the record. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Lastly, 26 although Dodakian was granted leave to file a CD containing Butters’ testimony in Tempe Municipal Court (see Doc. 67), it does not appear that he ultimately filed that non- 27 electronic exhibit. 3 Butters states the items included things such as railroad spikes and broken glass 28 shards. (DSOF ¶ 8.) Dodakian disputes this allegation on evidentiary grounds. (Doc. 64 at 5 ¶ 38.) 1 seat.” (DSOF ¶ 9; Video 01:17-01:24.) Dodakian continued to move around and asked 2 Butters “why do I have to grab a seat,” to which Butters answered, “because there’s a whole 3 bunch of things that could be weapons here and I don’t want you to grab any of them, so 4 sit down over here, this way.” (Video 01:24-01:34.) 5 Dodakian then turned away and moved towards the items near the dumpster. 6 Butters grabbed and held Dodakian’s arm and told him—“you’re going to go in handcuffs.” 7 Dodakian responded “let go of me”; Butters replied, “then just sit down.” Dodakian then 8 began to pull his arm away from Butters while yelling out “no dude, let go of me.” (DSOF 9 ¶¶ 10-14; Video 01:34-01:43.) Dodakian pulled his arm free from Butters grasp, but then 10 turned and moved towards Butters stating, “I said let go of me!” Butters responded by 11 pushing on Dodakian’s collarbone with his right hand, holding Dodakian’s right shoulder 12 with his left hand, and putting his right leg behind Dodakian’s left leg,4 which caused 13 Dodakian to fall to the ground and land on his side. (DSOF ¶¶ 15-16, 18-19; Video 01:43- 14 01:45.) (Id.) 15 Once on the ground, Butters instructed Dodakian to roll over so that he could 16 handcuff him and then attempted to roll him over from his side to his stomach. Dodakian 17 struggled with Butters and yelled out, among other things, “I got a bad back” and “dude, 18 I’ll fucking punch you, dude—I ain’t rolling over.” (DSOF ¶¶ 20-22; Video 01:45-02:01.) 19 Butters repeated commands to roll over and Dodakian lied face-up on his back. Butters 20 then placed his shin on Dodakian’s midsection, held down his arms with his hands, and 21 told him several more times to roll over. Dodakian expressly refused, struggled to release 22 his arms, and called out, among other things, “get the fuck off of me.” (DSOF ¶¶ 23-25; 23 Video 02:01-02:53.) Dodakian again refused to roll over and Butters stated he would wait 24 for another officer to arrive. Butters then pushed down Dodakian’s right arm with his left 25 knee, pushed down on Dodakian’s left arm with his left hand, and used his free hand to 26
27 4 Butters states that he “conducted a leg sweep by placing his right leg behind Dodakian’s left leg and pushing.” (DSOF ¶ 10.) Dodakian claims there was “no leg 28 sweep” but states his fall was caused by Butters “putting his leg behind [his] leg” and “pushing [him] at the same time.” (Doc. 64 at 8 ¶ 62.) 1 radio for backup assistance. (DSOF ¶¶ 24-27; Video 01:46-01:55.) 2 Butters continued to hold Dodakian down for several minutes, during which time 3 Dodakian fluctuated between emotional states. Officer Warbington then arrived, and the 4 two officers rolled Dodakian on to his stomach, handcuffed him behind his back, sat and 5 stood him up, then walked him to the curb where he sat for questioning. (DSOF ¶¶ 29-30; 6 Video 05:28-06:10.) The Tempe Fire Medical Rescue Department was later called to the 7 scene and transported Dodakian to St. Luke’s Medical Center for evaluation. (Docs. 64 at 8 7 ¶ 53; 70-2; 70-3.) 9 On July 9, 2019, Dodakian was charged in the Tempe Municipal Court, Case No. 10 19-026375-1, with disorderly conduct in violation of Arizona Revised Statutes § 13- 11 2904(A)(1), criminal littering in violation of § 13-1603(A)(1), and criminal trespass in 12 violation of § 13-1502(A)(1). He was acquitted of all three charges on August 27, 2019. 13 (Doc. 64 at 10 ¶ 2.)5 14 IV. Discussion 15 A. Constitutional Violation 16 1. Nature and Quality of Intrusion 17 Dodakian claims Butters used excessive force against him when (1) he “struck” 18 Dodakian, in that he “brutal[l]y and abruptly pushed [and] violently place[d] additional 19 force on [Dodakian’s] chest” “while putting his leg behind” Dodakian’s leg, and (2) he 20 “b[ore] weight” on Dodakian while he was lying on the ground. (Docs. 13 ¶ 28; 64 at 7-8 21 ¶¶ 59-62.) Dodakian alleges the use of force resulted in a “complete tear” of his anterior 22 cruciate ligament (ACL) in his right knee. (Docs. 13 ¶ 59; 64 at 7 ¶¶ 56-59.) 23 Drawing all reasonable inferences in Dodakian’s favor, Butters’ use of force was 24 capable of inflicting some pain and injury. The force used was therefore non-trivial, but 25 minimal in amount. See Williamson v. City of National City, 23 F.4th 1146 (9th Cir. 2022) 26 (force used in pulling handcuffed plaintiff backward by her arms and wrists after she went 27
28 5 See Tempe Municipal Court Case Search, https://courtcaseinfo.tempe.gov (ref. 19- 026375-1) (last accessed Mar. 15, 2023). 1 limp and refused to cooperate was “minimal”); O’Doan v. Sanford, 991 F.3d 1027, 1037 2 (9th Cir. 2021) (“The reverse reap throw maneuver that Officer Sanford used—a tripping 3 technique that knocked O’Doan off balance and allowed Sanford to bring O’Doan to the 4 ground—[] involved a modest deployment of force”); Garcia v. City of Santa Clara, 772 5 Fed. App’x 470, 472 (9th Cir. 2019) (force used, “which included a leg sweep, control 6 holds, and a punch to the face” was “relatively mild force”); Forrester v. City of San Diego, 7 25 F.3d 804, 807 (9th Cir. 1994) (use of force consisting of “physical pressure administered 8 on [the plaintiffs’] limbs” was “minimal” and “less significant than most claims of force”). 9 2. Governmental Interests 10 While Dodakian’s suspected offenses of trespass, disorderly conduct, and littering 11 were not severe or inherently dangerous, a reasonable officer faced with Dodakian’s erratic 12 behavior and escalating physical resistance would believe Dodakian was actively resisting 13 and posed a potential threat to himself and others. See Anderson, 483 U.S. at 643-44. 14 When Butters repeatedly told Dodakian to sit down, away from items he explained could 15 be used as weapons, Dodakian questioned and repeatedly disregarded his instructions, and 16 then stepped away from Butters towards the items. Thus, even if the items on the ground 17 were not possible weapons or in Dodakian’s immediate reach,6 a reasonable officer under 18 the circumstances could have believed Dodakian was noncompliant, unpredictable, and 19 potentially dangerous, such that it was objectively reasonable to take hold of Dodakian’s 20 arm to prevent the confrontation from escalating. 21 When Butters advised that he would be handcuffed, Dodakian refused and 22 immediately began to struggle to pull his arm away. And when Dodakian successfully 23 pulled his arm free from Butters’ grip, he turned and moved towards Butters yelling “I said 24 let go of me!” A reasonable officer faced with Dodakian’s physical resistance, combined 25 with the tense and rapidly evolving circumstances presented, would have feared for his 26 own safety, such that it was objectively reasonable to push Dodakian away and down to 27
28 6 Dodakian claims no threat existed because the items on the ground were over 4 yards away. (See Doc. 64 at 5-6 ¶¶ 38, 43.) 1 the ground to restrain him. See Graham, 490 U.S. at 397; Doan, 991 F.3d at 1037 (officers 2 “acted reasonably in deciding to bring O’Doan under control” when “O’Doan repeatedly 3 resisted officers’ commands to stop and then turned to the officers in a threatening 4 manner”); Garcia, 772 F. App’x at 472 (leg sweep and control holds were reasonable to 5 control suspect who “resisted arrest and attempted to punch the officers while the officers 6 were trying to subdue him”); cf. Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) 7 (finding force excessive where agent “grabbed [plaintiff] by her arms, forcibly threw her 8 to the ground, and, twisting her arms, handcuffed her” when she only passively resisted by 9 asking for a search warrant, “did not pose a safety risk[,] and made no attempt to leave”). 10 While Dodakian appears to claim he was compliant and did not resist Butters or “show 11 signs of hostility” (Docs. 13 ¶ 28; 64 at 5-6 ¶ 38), his allegations are plainly refuted by the 12 video evidence and are, therefore, insufficient to create a triable issue of fact. See Scott, 13 550 U.S. at 378-81; Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th 14 Cir. 2001) (“Arpin’s conclusory statement that she ‘did not resist arrest in any way,’” was 15 insufficient to defeat summary judgment). 16 While on the ground, Dodakian refused Butters’ instructions to roll over to be 17 handcuffed, continued to struggle to release his arms, and yelled out he would “punch” 18 Butters. Even if Dodakian sought to escape Butters’ grasp to avoid a painful position, his 19 continued physical resistance and verbal threats justified the continued application of force 20 to hold Dodakian’s body and arms on the ground until the other officer arrived to assist in 21 handcuffing him. See Tatum v. City and Cnty. of San Francisco, 441 F.3d 1090, 1097 (9th 22 Cir. 2006) (“Faced with a potentially violent suspect, behaving erratically and resisting 23 arrest, it was objectively reasonable for Smith to use a control hold to secure Fullard’s arm 24 long enough to place him in handcuffs.”); Acosta v. City of Costa Mesa, 718 F.3d 800, 826 25 (9th Cir. 2013) (where suspect was “flailing his body to actively resist the police[,] 26 [h]olding him by his limbs to control him and prevent him from injuring an officer was [] 27 not unreasonable or excessive”). To the extent Dodakian alleges he did not threaten or 28 resist Butters on the ground, that claim is also plainly discredited by the video evidence 1 and does not create a triable issue of fact. See Scott, 550 U.S. at 378-81; Arpin, 261 F.3d 2 at 922. 3 3. Balance 4 On balance, when taking the facts in the light most favorable to Dodakian, to the 5 extent they are not clearly discredited by the video evidence, no reasonable jury could 6 conclude that Butters’ use of force was objectively unreasonable under the circumstances. 7 Scott, 550 U.S. at 381 n.8; Miller, 340 F.3d at 964. Butters’ use of force–pushing Dodakian 8 to the ground with a leg technique and applying pressure to his arms and torso while 9 Dodakian was lying face-up on the ground–involved a non-trivial, but minimal amount of 10 force. On the other hand, the countervailing need to use that force was significant. 11 Dodakian ignored and acted contrary to Butters’ commands to sit on the curb and submit 12 to handcuffs, which were designed to facilitate questioning and protect both Butters and 13 Dodakian. While standing, Dodakian pulled his arm free of Butters’ grip, then turned back 14 towards him aggressively, and on the ground, Dodakian was volatile and continued to 15 struggle. Under these circumstances, Butters’ use of force to restrain and handcuff 16 Dodakian was an objectively reasonable response to “tense, uncertain, and rapidly 17 evolving” circumstances. Graham, 490 U.S. at 397; Tatum, 441 F.3d at 1091. 18 Dodakian appears to argue the amount of force used was excessive because there 19 were less intrusive means available and Butters “did not communicate or ‘use verbal 20 commands’” warning him that force would be used. (Doc. 64 at 9-10.) The Court, 21 however, finds no support in the record for these arguments. Although officers are not 22 required to use the least intrusive degree of force possible, Forrester, 25 F.3d at 807, there 23 is no evidence that Butters applied more force than necessary under the circumstances to 24 restrain Dodakian to handcuff him. Butters did not punch, kick, or deliver physical blows 25 in a manner capable of causing serious physical injury. Similarly, Butters gave Dodakian 26 numerous warnings. Butters told Dodakian repeatedly to sit on the curb to be questioned, 27 away from items he believed were potentially dangerous, and when Dodakian ignored 28 those commands and proceeded to do the contrary, Butters told him he would be 1 handcuffed and held on to his arm. Butters repeatedly told Dodakian to roll over on the 2 ground to be handcuffed, and when Dodakian verbally refused and physically resisted, 3 Butters told him he would continue to hold him until another officer arrived to help 4 handcuff him. Dodakian therefore failed to show there is a genuine dispute of material fact 5 for trial as to whether the Defendants’ use of force was excessive in violation of his Fourth 6 Amendment right against unreasonable seizures. 7 B. Clearly Established 8 Even if the evidence established Butters’ use of force amounted to a Fourth 9 Amendment violation, the law was not sufficiently clear that any reasonable officer under 10 the same circumstances would have known that use of force was unconstitutional. 11 Dodakian has not identified any legal authority, nor is the Court aware of any, that holds, 12 beyond debate, that an officer’s use of force is unconstitutionally excessive when: the 13 officer grabs a suspect’s arm, pushes a suspect to the ground using a leg sweep maneuver, 14 and applies pressure to the suspects arms and body while lying face-up on the ground to 15 restrain and handcuff them, where the suspect repeatedly ignored and acted contrary to the 16 officer’s instructions, and then verbally and physically resisted the officer’s efforts to 17 handcuff them. See O’Doan, 991 F.3d at 1037 (finding it was not clearly established that 18 officer’s use of “reverse reap throw” which involved tripping suspect and bringing him to 19 the ground, was unconstitutionally excessive); Shafer v. Cnty. of Santa Barbara, 868 F.3d 20 1110, 1117 (9th Cir. 2017) (“an officer [does not] violate clearly established law when he 21 progressively increases his use of force from verbal commands, to an arm grab, and then a 22 leg sweep maneuver, when a misdemeanant refuses to comply with the officer’s orders and 23 resists, obstructs, or delays the officer in his lawful performance of duties such that the 24 officer has probable cause to arrest him in a challenging environment.”); see also Emmons 25 v. City of Escondido, 921 F.3d 1172, 1175 (9th Cir. 2019) (concluding precedent involving 26 use of force in response to passive resistance was not sufficiently clear where officer 27 performed a takedown of non-dangerous man who disobeyed the officer’s command by 28 closing an apartment door). This is not a “rare obvious case” in which “the unlawfulness 1| of the officer’s conduct is sufficiently clear even though existing precedent does not 2| address similar circumstances.” Wesby, 138 S. Ct. at 590 (internal quotation marks 3 | omitted). 4 Accordingly, because Dodakian has failed to meet his burden on summary judgment 5 | to show a violation of a constitutional right, or that such right was clearly established, Butters is entitled to qualified immunity. Shafer, 868 F.3d at 1118. Summary judgment 7 | will therefore be granted. 8) ITIS ORDERED: 9 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 10 | Motion for Summary Judgment (Doc. 56) and the Motion is granted. 11 (2) The Clerk of Court shall enter judgment accordingly and terminate this case. 12 Dated this 20th day of March, 2023. 13 WMichadl T. dibunde Michael T, Liburdi 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28