Floyd v. Santa Clara Department of Correction

• Court: District Court, N.D. California
• Decided: October 10, 2024
• Docket: 3:22-cv-00750
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MICHAEL DEVIN FLOYD, Case No. 22-cv-00750-CRB

9 Plaintiff,

ORDER GRANTING SUMMARY 10 v. JUDGMENT

11 SANTA CLARA DEPARTMENT OF CORRECTION, et al., 12 Defendants. 13 Michael Floyd sued various Santa Clara County law enforcement officers, as well 14 as the County and several of its subdivisions, for alleged constitutional violations 15 stemming from the events following Floyd’s August 2021 arrest. Defendants move for 16 summary judgment on all counts. For the reasons that follow, the Court GRANTS 17 Defendants’ motion in full. 18 I. BACKGROUND 19 On this motion for summary judgment, the Court considers the parties’ admissible 20 evidence and resolves all factual disputes against the moving party. See Orr v. Bank of 21 Am., NT & SA, 285 F.3d 764, 772–73 (9th Cir. 2002). The Court cannot consider 22 unauthenticated or inadmissible evidence, even for the purpose of drawing inferences from 23 that evidence. Id. at 773. 24 A. Events at Santa Clara County Main Jail 25 San Jose Police Department officers arrested Floyd on the evening of August 18, 26 2021, and brought him to the Santa Clara County Main Jail. Third Am. Compl. at 8. 27 Officers booked Floyd into the Main Jail at 11:45 p.m. Dundic Decl. (dkt. 106-8) ¶ 4. 1 Floyd names the following officers from the Main Jail as Defendants: Dung Tran, Robert 2 Silos, Jeremy Hiles, Saul Agustin, Charles Stokes, III, Ryan Reyes, and Sergeant Vorpahl. 3 Third Am. Compl. at 4, 7. 4 For most of the time that Floyd spent at the Main Jail, he was secured to a chair in 5 the intake lobby. Id. ¶ 5; see generally Floyd Exhibits (dkt. 108-3), Ex. V1 (intake lobby 6 camera footage), Ex. V2 (intake lobby camera footage).1 Officers escorted Floyd to a 7 toilet twice during the four hours he spent in the intake lobby: once at 12:35 a.m. and once 8 at 2:37 a.m. on August 19. Dundic Decl. ¶¶ 6–7; Floyd Ex. V1 at 15:40–25:50; Fernandes 9 Decl. (dkt. 106-2) Ex. A (holding cell camera footage). 10 Floyd was transferred to the Elmwood Correctional Facility at 3:38 a.m. on August 11 19. Dundic Decl. ¶ 8. Floyd requested to use the telephone in the intake lobby once he 12 had learned that he would be transferred—about thirty minutes before his transfer. Floyd 13 Dep. Tr. (dkt. 106-1) at 95:23–96:16, 97:4–7, 103:21–24. The officers told Floyd that he 14 needed to wait until after he arrived at Elmwood before he could make a phone call. Id. at 15 98:12–21. Floyd also requested to use the restroom as officers were escorting him to the 16 van that would transport him to Elmwood, but the officers told him he could use the 17 restroom there. Floyd Ex. V4 (body camera footage) at 0:00–3:00. 18 B. Events at Elmwood Correctional Facility 19 Floyd arrived at Elmwood around 4:00 a.m. on August 19. Cote Decl. (dkt. 106-7) 20 ¶ 4. Floyd was instructed to “dress out”—that is, change from his civilian clothes into 21 prison clothes—before he could leave the processing lobby and go to his cell. Id. ¶ 7; 22 Floyd Dep. Tr. at 128:18–21. He refused, stating that he needed to make a phone call first. 23 Floyd Dep. Tr. at 128:22–24, 130:2–3; Cote Decl. ¶¶ 7–8, 10. Floyd persisted in his 24 refusal to dress out for ten hours, even as multiple officers asked him to comply and 25

26 1 Both parties rely heavily on video camera footage, yet Floyd repeatedly asserts in his briefing that the video footage has been altered. See Opp. (dkt. 108) at 2, 4, 11. Floyd 27 does not back up these assertions with evidence, so they are not entitled to any weight. 1 assured him that he would be able to make a phone call once he did. Floyd Dep. Tr. at 2 130:12–132:8; Cote Decl. ¶ 8. These officers included Defendants Gino Cofferati, Corey 3 Evans, Yvette Dias, Bradley Reagan, Victor Cabrera, Kyle Quadros, Fabian Serrano- 4 Alvarez, George Barajas, Jesus Patino, Joseph Cortez, Isaiah Campos, Ryan Hernandez, 5 and Miguel Sanchez-Perez. Third Am. Compl. at 4–7. Over the course of those ten hours 6 Floyd used the restroom twice, at 4:55 a.m. and at 8:23 a.m. Cote Decl. ¶ 18; Floyd Dep. 7 Tr. at 145:23–146:1. The record does not indicate whether Floyd asked to use the 8 restroom aside from those two occasions. 9 While Floyd was in the processing lobby, Defendants twice referred him for a 10 mental health assessment. Evans Decl. (dkt. 106-9) ¶¶ 4–5. During the second 11 assessment, Defendant Conseulo Garcia, a therapist, offered to call Floyd’s brother. Id. 12 ¶ 5; Garcia Decl. (dkt. 106-10) ¶ 5; Floyd Dep. Tr. at 137:8–16. Garcia initially reached 13 Floyd’s brother, but the call was disconnected, and Garcia was unable to reconnect. Evans 14 Decl. ¶ 5; Garcia Decl. ¶ 5. Floyd did not ask Garcia to call anyone else for him. Evans 15 Decl. ¶ 6; Garcia Decl. ¶ 6. 16 At approximately 11:00 a.m. on August 19, the Emergency Response Team—a 17 group of at least ten officers—went to the processing lobby to try to take Floyd to his cell. 18 Cote Decl. ¶ 8; Cabrera Decl. (dkt. 106-4) ¶ 4. Floyd resisted by pulling away, tensing his 19 extremities, refusing to walk, and otherwise making it difficult or impossible for officers to 20 physically move him from his seat. Fernandes Decl. Ex. B (handheld video camera 21 footage), Ex. C (body camera footage); Ex. D (body camera footage); see also Barajas 22 Decl. (dkt. 106-3) ¶ 5; Quadros Decl. (dkt. 106-11) ¶ 5; Patino Decl. (dkt. 106-12) ¶ 5; 23 Evans Decl. ¶ 8; Serrano-Alvarez Decl. (dkt. 106-13) ¶ 5; Cabrera Decl. ¶ 5; Floyd Dep. 24 Tr. at 143:3–6, 12–14, 144:8–12, 145:10–13. Rather than force Floyd to move, ERT 25 members resecured him to his seat and left. Fernandes Decl. Ex. B, Ex. C; Ex. D; Barajas 26 Decl. ¶ 5; Quadros Decl. ¶ 5; Patino Decl. ¶ 5; Evans Decl. ¶ 8; Serrano-Alvarez Decl. ¶ 5; 27 Cabrera Decl. ¶ 5; Floyd Dep. Tr. at 142:20–22, 145:23–146:1. Floyd suffered bruising 1 Ruth Cote, the watch commander at Elmwood, then went into the processing lobby 2 to meet with Floyd. Cote Decl. ¶ 12. She told Floyd that he could not stay in the lobby, 3 but he refused to dress out so he could be moved to his cell. Id. ¶¶ 13–14. Cote then 4 decided that Floyd would have to be moved to his cell and dress out there, so she called the 5 ERT back. Id. ¶ 15. Floyd did not resist this time around, and the ERT members were 6 able to remove him from the lobby in a wheelchair. Fernandes Decl. Ex. E (processing 7 lobby camera footage); Ex. F (body camera footage); Ex. G (body camera footage); Floyd 8 Ex. V5 (processing lobby camera footage) at 55:20–57:30. The ERT members did not use 9 force or injure Floyd on this occasion. Floyd Dep. Tr. at 151:6–11. 10 ERT members took Floyd to his cell, where he arrived around 2:00 p.m. Cote Decl. 11 ¶ 17. Once in his cell, Floyd spoke with Defendants Matthew Newton and Daniel 12 Dickson. Floyd Ex. V3 (body camera footage). They informed Floyd that there was a 13 phone in the dorm but that he would have to wait his turn to use it. Id. at 5:40–6:15.2 14 C. Procedural History 15 Floyd sued the 24 individual defendants under § 1983, alleging various theories of 16 liability: 17 • He alleges that Defendants Barajas, Cabrera, Campos, Cortez, Dias, Evans, 18 Hernandez, Patino, Quadros, Reagan and Serrano-Alvarez used excessive force 19 against him. Third Am. Compl. at 5–6. 20 • He alleges that Defendants Agustin, Cofferati, Cote, Dias, Dickson, Evans, 21 Garcia, Hiles, Newton, Reagan, Reyes, Sanchez-Perez, Silos, Stokes, Tran, and 22 Vorpahl violated his right under California law to make a phone call. Id. at 4–7. 23 • He alleges that Defendants Agustin, Hiles, Reyes, Silos, Stokes, Tran, and 24 Vorpahl violated his right to use the restroom. Id. at 4, 7. 3 25 2 Floyd asserts in his opposition brief that Dickson told him “[a]t some point while on 26 duty” that “he would have to wait 24 hours for a phone call due to COVID.” Opp. at 6. Floyd does not identify any supporting evidence for this assertion, and the Court has been 27 unable to locate any. 1 Floyd also sued the County of Santa Clara (and several of its subdivisions, such as the 2 Department of Correction) for municipal liability under Monell v. Department of Social 3 Services, 436 U.S. 658 (1987). 4 II. LEGAL STANDARD 5 Summary judgment is proper when there is “no genuine dispute as to any material 6 fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 7 56(a). Material facts are those that may affect the outcome of the case. Anderson v. 8 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine 9 if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 10 party.” Id. 11 The moving party bears the initial burden of identifying those portions of the 12 pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of 13 material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where, as here, the 14 moving party will not bear a burden of proof at trial, it need only point out “that there is an 15 absence of evidence to support” the nonmoving party’s case. Id. Once it has done so, the 16 nonmoving party must go beyond the pleadings to demonstrate the existence of a genuine 17 dispute of material fact by “citing to particular parts of materials in the record.” Fed. R. 18 Civ. P. 56(c). If the nonmoving party fails to do so, “the moving party is entitled to a 19 judgment as a matter of law.” Celotex, 477 U.S. at 323. 20 III. DISCUSSION 21 Floyd asserts three categories of due process claims, each of which stems from a 22 distinct factual predicate: (1) an excessive force claim arising out of Defendants’ first, 23 unsuccessful efforts to move Floyd from the Elmwood processing lobby, (2) a claim 24 arising out of Defendants’ refusal to allow Floyd to use a phone at either the Main Jail or 25 Elmwood; and (3) a claim arising out of Defendants’ refusal to allow Floyd to use the 26

27 pretrial detainee. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Floyd’s mistake is not 1 restroom at either the Main Jail or Elmwood. Floyd’s Monell claim incorporates these 2 three factual bases as well. 3 A. Excessive Force 4 Floyd’s first batch of claims are against the ERT members who were involved in the 5 first, unsuccessful effort to move Floyd from the Elmwood processing lobby to his cell. 6 The Fourteenth Amendment grants pretrial detainees the substantive right to be free from 7 excessive force. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Excessive force is 8 that which amounts to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). 9 Force that is reasonable given the “facts and circumstances of [the] particular case,” by 10 contrast, is not excessive. Kingsley, 576 U.S. at 397 (citation omitted). 11 Whether force is reasonable is judged “from the perspective of a reasonable officer 12 on the scene” and must account for “legitimate interests that stem from the government’s 13 need to manage the facility in which the individual is detained,” including “‘policies and 14 practices that in the judgment’ of jail officials ‘are needed to preserve internal order and 15 discipline and to maintain institutional security.’” Id. (cleaned up) (quoting Bell v. 16 Wolfish, 441 U.S. 520, 540, 547 (1979)). Some factors that bear on the reasonableness of 17 force used include “[1] the relationship between the need for the use of force and the 18 amount of force used; [2] the extent of the plaintiff’s injury; [3] any effort made by the 19 officer to temper or to limit the amount of force; [4] the severity of the security problem at 20 issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was 21 actively resisting.” Id. Moreover, “de minimis uses of physical force” do not give rise to 22 viable Eighth Amendment claims except where “the use of force is [] of a sort repugnant to 23 the conscience of mankind.” Wilkins v. Gaddy, 559 U.S. 34, 37–38 (2010) (per curiam) 24 (quoting Hudson v. McMillian, 503 U.S. 1, 9–10 (1992)). 25 Here, the evidence leaves no room for a genuine dispute of fact as to the 26 reasonableness of the ERT members’ use of force when they tried to move Floyd out of the 27 Elmwood processing lobby. At least four aspects of their interaction with Floyd confirm 1 First, the ERT members clearly sought to minimize their use of force. When Floyd 2 resisted, they did not escalate their use of force; rather, they stopped trying to move him 3 and left him where he was. Fernandes Decl. Ex. B, Ex. C, Ex. D. This “effort made … to 4 temper or to limit the amount of force” indicates that the use of force itself was reasonable. 5 See Kingsley, 576 U.S. at 397. 6 Second, the ERT members’ use of force was tailored to specific safety concerns. 7 For example, Barajas and Cabrera held the back of Floyd’s head to prevent him from 8 headbutting other ERT members in the face. Barajas Decl. ¶ 5; Cabrera Decl. ¶ 5; see also 9 Fernandes Decl. Ex. B. Patino held Floyd down by his right shoulder and upper back after 10 Floyd started “thrashing … from side to side.” Patino Decl. ¶ 5. Quadros and Serrano- 11 Alvarez held Floyd’s arm and wrist so that he could be controlled while being unsecured 12 from his chair. Quadros Decl. ¶ 5; Serrano-Alvarez ¶ 5.4 And when the ERT members 13 returned a second time, Floyd did not resist, so they did not use force to move him. Floyd 14 Dep. Tr. at 151:16–23. Throughout the ERT members’ interactions with Floyd, there was 15 a close “relationship between the need for the use of force and the amount of force used,” 16 which indicates that the force used was reasonable. See Kingsley, 576 U.S. at 397. 17 Third, Floyd’s injuries were relatively minor, apparently consisting only of bruises 18 from handcuffs. See Opp. at 5. Even if Floyd’s injuries were not de minimis, the lack of 19 severe or lasting injuries supports a conclusion that the amount of force used was not 20 excessive. See Kingsley, 576 U.S. at 397; Wilkins, 559 U.S. at 37–38. 21 Fourth, Floyd’s injuries are directly traceable to his own attempts to resist the ERT 22 members’ attempt to move him to his cell. Floyd repeatedly swore at them and physically 23 resisted, making it harder for them to control or move him. Fernandes Decl. Ex. C at 24 0:27–0:32 (“I’m not gonna fucking relax.”), Ex. D at 1:19–1:23 (same); see also Barajas 25 4 There is no evidence that any of the remaining Defendants against whom Floyd asserts 26 excessive-force claims personally exerted force against him. Floyd identifies no record evidence that would explain why the remaining Defendant should be held liable for actions 27 they did not personally take. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) 1 Decl. ¶ 5; Quadros Decl. ¶ 5; Patino Decl. ¶ 5; Evans Decl. ¶ 8; Serrano-Alvarez Decl. ¶ 5; 2 Cabrera Decl. ¶ 5 Floyd himself even acknowledged as much. Floyd Dep. Tr. at 152:18– 3 25 (“I had my handcuffs on as I’m struggling. And yeah, I mean, you get the bruises from 4 the handcuffs.”). When the ERT members returned and tried again, Floyd did not resist, 5 the ERT members did not use force, and Floyd did not suffer any injuries. Id. at 151:2–11. 6 Floyd’s aggravated response makes Defendants’ use of force more likely to be reasonable. 7 See Kingsley, 576 U.S. at 397. 8 Floyd, for his part, brings forward no evidence to back up his assertion that 9 Defendants’ use of force was excessive. Instead, he explains that he resisted because of 10 his difficulty accessing the restroom and desire to use the phone. Floyd Dep. Tr. at 144:8– 11 12; Opp. at 4. That may be so. But whether Floyd had a good reason for resisting does not 12 answer whether Defendants’ use of force was excessive or reasonable. The undisputed 13 video evidence shows that it was reasonable, so the Court grants summary judgment with 14 respect to Floyd’s excessive force claims. 15 B. Denial of Phone Call 16 Floyd’s next claim stems from the fact that he was not given the ability to make a 17 phone call at either the Main Jail or at Elmwood. He raises a due process claim based on a 18 violation of California Penal Code section 851.5, which requires that pretrial detainees be 19 permitted to make three free phone calls “[i]mmediately upon being booked and, except 20 where physically impossible, no later than three hours after arrest.” Cal. Penal Code 21 § 851.5(a)(1). The phone calls “shall be given immediately upon request, or as soon as 22 practicable.” Id. § 851.5(e). Penal Code section 851.5 creates a liberty interest protected 23 by the Due Process Clause of the Fourteenth Amendment. Carlo v. City of Chino, 105 24 F.3d 493, 497–98, 500 (9th Cir. 1997).5 25 Defendants argue that Floyd’s failure to request a phone call during the three-hour 26 5 Floyd also appears to suggest that he has a freestanding Fourteenth Amendment right to 27 use a phone. See Opp. at 6–7 (collecting cases regarding phone communication). The 1 window after his arrest defeats his claim because his statutory right to a phone call lapsed 2 three hours after he was arrested. Mot. (dkt. 106) at 14. Floyd was booked at the Main 3 Jail at 11:45 p.m. on August 18, yet he first requested a phone call no earlier than 3:08 a.m. 4 on August 19—more than three hours later. Dundic Decl. ¶ 4; Floyd Dep. Tr. at 95:23– 5 96:16, 97:4–7, 103:21–24. 6 On first glance, Defendants’ reading seems like a reasonable interpretation of Penal 7 Code section 851.5(a)(1), which states in full: “Immediately upon being booked and, 8 except where physically impossible, no later than three hours after arrest, an arrested 9 person has the right to make at least three completed telephone calls … .” Several district 10 courts have interpreted this statute to apply only “within three hours of being arrested.” 11 E.g., Adams v. Albertson, 2012 WL 440465, at *9 (N.D. Cal. Feb. 10, 2012); accord 12 Lhevan v. Spitzer, 2022 WL 2892390, at *8 (May 27, 2022); Medrano v. Acosta, 2020 13 WL 5413384, at *6 (C.D. Cal. Mar. 25, 2020); Hook v. City of Santa Monica, 2006 WL 14 5309516, at *3 (C.D. Cal. June 7, 2006); McMahon v. County of Santa Barbara, 2016 WL 15 11758778, at *7 (C.D. Cal. Jan. 8, 2016). But in an unpublished order that predates most 16 of these district court decisions, the Ninth Circuit rejected this argument. Maley v. County 17 of Orange, 224 F. App’x 591, 593 (9th Cir. 2007); see also Golden v. County of Tulare, 18 2011 WL 1087097, at *3 (E.D. Cal. Mar. 23, 2011) (“The entire tenor of [] section 851.5 is 19 one of liberality to the accused.”). 20 The Court need not decide whether the Ninth Circuit’s order (which relies on a 21 California Supreme Court decision interpreting a previous version of Penal Code section 22 851.5—a version that does not have the three-hour language) or the district courts’ orders 23 (which do not squarely address the issue) are more persuasive. The legal uncertainty 24 around the scope of Penal Code § 851.5 in this context means that Defendants are entitled 25 to qualified immunity. See Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (qualified 26 immunity protects government officials who make “mistaken judgments about open legal 27 questions”); Rico v. Ducart, 980 F.3d 1292, 1300–01 (9th Cir. 2020) (“it will be a rare 1 illegality, we can conclude that the law was clearly established on the basis of unpublished 2 decisions only” (citation omitted)). The individual Defendants are thus entitled to 3 summary judgment. 4 Moreover, even if Penal Code section 851.5 granted Floyd a right to a phone call 5 beyond three hours after his arrest, Defendants were simply obligated to provide him a 6 phone call “as soon as practicable” after he requested one. Cal. Penal Code § 851.5(e). 7 Though Floyd was denied a phone call for over 10 hours after he first requested one, that 8 delay was largely of his own making given his refusal to dress out in the Elmwood 9 processing lobby. In fact, Defendants consistently told Floyd that his cooperation would 10 enable him to make a phone call sooner. See, e.g., Fernandes Decl. Ex. B at 1:23–1:26 11 (“All I want to do is get you to your housing unit and get you that phone call.”), 2:05–2:10 12 (“You let us help you, we’ll get you to your housing unit, you can use your phone, and we 13 can go from there.”). Defendants’ conduct—which is mostly marked by their consistent 14 efforts to move Floyd to his cell, where he would be able to make a phone call—does not 15 so clearly violate Penal Code section 851.5 as to defeat qualified immunity. 16 C. Restriction of Restroom Access 17 Floyd’s final claim against the individual Defendants is a due process claim arising 18 out of their alleged refusals to allow him to use the restroom. The Fourteenth Amendment 19 entitles pretrial detainees to “adequate food, clothing, shelter, sanitation, medical care, and 20 personal safety.” Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996) 21 (citation omitted), overruled on other grounds by John R. Sand & Gravel Co. v. United 22 States, 552 U.S. 130 (2008). With respect to restroom access, “temporary deprivations … 23 that last only a short amount of time and do not pose a serious threat of harm to the 24 prisoner do not give rise to deprivations that are sufficiently serious to support [a 25 Fourteenth Amendment] claim.” Gunn v. Tilton, 2011 WL 1121949, at *3 (E.D. Cal. Mar. 26 23, 2011); see also Hason v. County of Los Angeles, 2012 WL 13123537, at *5 (C.D. Cal. 27 Mar. 13, 2012) (five-hour deprivation of access to toilet facilities “does not violate an 1 Apr. 27, 2010) (denying constitutional claim where the plaintiff had to wait two hours 2 between requesting to use the restroom and being able to do so). 3 The record indicates that Floyd used the restroom twice while at the Main Jail, see 4 Floyd Dep. Tr. at 100:3–18, and twice at Elmwood, Cote Decl. ¶ 18.6 Moreover, the 5 evidence does not show that Defendants meaningfully delayed Floyd’s access to 6 restrooms. Floyd conceded that he did not have to wait more than five minutes either time 7 he asked to use the restroom at the Main Jail, Floyd Dep. Tr. at 100:3–18, and the first time 8 he used the restroom at Elmwood was within an hour after he arrived there, Cote Decl. 9 ¶¶ 4, 18. And Floyd never involuntarily urinated or defecated outside the restroom. Floyd 10 Dep. Tr. at 124:3–6. 11 Even if Floyd was denied access to a restroom for some brief window of time while 12 at the Main Jail or Elmwood, any such temporary deprivation fails to rise to the level of a 13 substantive due process violation. See Kanick, 2010 WL 2162324, at *5 (“temporary 14 deprivation of access to toilets, in the absence of physical harm or a serious risk of 15 contamination, … does not amount to anything more than an inconvenience”). Summary 16 judgment is therefore appropriate on Floyd’s Fourteenth Amendment claim based on the 17 denial of access to a restroom. 18 D. Monell Claim 19 In addition to his claims against the individual defendants, Floyd asserts a Monell 20 claim against the County of Santa Clara. A Monell claim has four elements: (1) a 21 constitutional deprivation and (2) a government policy, practice, or custom (3) that 22 demonstrates deliberate indifference to the constitutional right at issue and (4) is a 23 6 Floyd contends that he was denied access to restrooms at Elmwood, relying on two 24 videos as support. But neither creates a genuine dispute of fact. One video shows Floyd several hours after the fact recounting what happened in the processing lobby. Floyd 25 Ex. V3. This is hearsay and inadmissible at summary judgment. Orr, 285 F.3d at 778. The other video, which shows the processing lobby, is unintelligible. Floyd Ex. V5. 26 Floyd’s characterization in his briefs of what that video shows is not evidence. See Hill v. PetSmart, Inc., 2022 WL 980269, at *4 (S.D. Tex. Mar. 30, 2022) (“While the Court 27 examines the Parties’ characterizations of the evidence in the briefs, the Court also reviews 1 “moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 2 892, 900 (9th Cir. 2011). A Monell claim is not a claim for vicarious liability—the policy, 3 practice, or custom must be tied to the constitutional violation at issue. Id.; see also City of 4 Canton v. Harris, 489 U.S. 378, 385 (1989). 5 As explained above, Floyd does not show a constitutional deprivation on either his 6 excessive force theory or his restroom access theory. And it is questionable whether he 7 has shown a constitutional deprivation on his phone access theory. It does not matter 8 whether he has, though, as his Monell claim fails on another prong—lack of a policy, 9 practice, or custom. 10 Floyd fails to bring forth any evidence that would establish that the County of Santa 11 Clara has a policy, practice, or custom of refusing phone calls to prison inmates. He does 12 not identify any official County policy. And though he asserts in his briefing that the 13 County had a “culture” of refusing requests for phone calls, Opp. at 13, his conclusory 14 statement is backed up only by a single lawsuit from over fifteen years ago. That is an 15 insufficient basis for a Monell claim. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 16 737 (1989) (requiring a “longstanding practice or custom which constitutes the standard 17 operating procedure of the local governmental entity”); Trevino v. Gates, 99 F.3d 911, 918 18 (9th Cir. 1996) (requiring “practices of sufficient duration, frequency and consistency that 19 the conduct has become a traditional method of carrying out policy”). Nor does it matter 20 for purposes of municipal liability that multiple officers were allegedly involved in 21 preventing him from making a phone call. See Jett, 491 U.S. at 737; Trevino, 99 F.3d at 22 918. Summary judgment on Floyd’s Monell claim is therefore appropriate. 23 IV. CONCLUSION 24 For the foregoing reasons, the Court GRANTS summary judgment in favor of 25 Defendants. 26 IT IS SO ORDERED. 27 Dated: October 10, 2024 CHARLES R. BREYER