1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JAMES HUDLOW, Case No.: 18-cv-2826-CAB-WVG
11 Plaintiff, ORDER GRANTING DEFENDANTS’ 12 v. MOTION FOR SUMMARY JUDGMENT 13 COUNTY OF SAN DIEGO; DEPUTY
ANTHONY MEHALIK; DEPUTY 14 CARLOS ESQUER, 15 Defendants. [Doc. No. 26] 16 17 This matter is before the Court on Defendants Deputy Carlos Esquer’s and Deputy 18 Anthony Mehalik’s motion for summary judgment, or in the alternative, partial summary 19 judgment. [Doc. No. 26.] The Court finds it suitable for determination on the papers 20 submitted and without oral argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set 21 forth below, Defendants’ motion for summary judgment is granted. 22 I. BACKGROUND 23 Plaintiff alleges that on September 25, 2016 at 4:00 a.m., he was walking on 24 Encinitas Boulevard towards his residence when he noticed a vehicle on the other side of 25 the road. [Doc. No. 1, SAC at ¶ 12.1] Plaintiff alleges that deputies saw him walking and 26 27 28 1 that he eventually crossed the street. [Id. at ¶¶ 13–15.] After walking another quarter of a 2 mile, he was approached by Deputy Esquer and Deputy Mehalik and Plaintiff asked if he 3 could assist them. [Id. at ¶¶ 15–16.] Plaintiff claims the deputies grabbed Plaintiff’s hands 4 and began asking him questions. [Id. at ¶¶ 16–17.] The deputies allegedly asked Plaintiff 5 if they could search him, but he denied their request. [Id. at ¶ 17.] He alleges that he 6 immediately told the deputies that he was disabled and could not have his hands placed 7 behind his back. [Id. at ¶ 18.] The deputies asked him why he could not perform the task 8 but, as Plaintiff attempted to demonstrate his “limitation” the deputies allegedly grabbed 9 his hands and handcuffed him. [Id.] Plaintiff states he immediately began complaining of 10 being in pain because his hands were behind his back, but that the deputies responded by 11 acting more forcibly and they said that “everyone claims to be disabled.” [Id. at ¶ 19.] 12 Plaintiff further alleges that the deputies searched him for 45 minutes before 13 determining he had not participated in any criminal activity and then they removed the 14 handcuffs. [Id. at ¶¶ 20-21.] Plaintiff claims that when Deputy Mehalik removed the 15 handcuffs, he twisted Plaintiff’s hands and pulled both of Plaintiff’s shoulders out of the 16 sockets which caused Plaintiff to be in pain. [Id. at ¶ 22.] Plaintiff alleges that he was 17 pushed to the ground where Deputy Mehalik continued to pull on his arms. [Id. at ¶ 23.] 18 He claims he asked deputies to take him to the hospital, but they declined to do so. [Id. at 19 ¶ 24.] Fearful of the deputies, Plaintiff returned to his home as quickly as possible. [Id. at 20 ¶ 25.] 21 On March 1, 2019, the Court granted the Defendants’ motion to dismiss Plaintiff’s 22 municipal liability and Americans with Disabilities Act claims from the Second Amended 23 Complaint (“SAC”) with leave to amend. [Doc. No. 8.] Plaintiff failed to amend the SAC 24 and the only claims remaining are against Defendants Deputy Esquer and Deputy Mehalik 25 for excessive force and unlawful detention pursuant to 42 U.S.C. § 1983. [Doc. No. 1 at 26 10—12.] On April 24, 2020, Defendants moved for summary judgment, or in the 27 alternative, partial summary judgment. [Doc. No. 26.] 28 1 II. LEGAL STANDARD 2 “A party is entitled to summary judgment if the ‘movant shows that there is no 3 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 4 of law.’” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) 5 (quoting Fed. R. Civ. P. 56(a)). Material facts are those that may affect the outcome of the 6 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of 7 material fact exists if there is sufficient evidence for a reasonable jury to return a verdict 8 for the nonmoving party. Id. at 248–49. 9 The party moving for summary judgment bears the initial burden of informing the 10 court of the basis for the motion, and identifying portions of the pleadings, depositions, 11 answers to interrogatories, admissions, or affidavits that demonstrate the absence of a 12 triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet 13 its burden, “the moving party must either produce evidence negating an essential element 14 of the nonmoving party’s claim or defense or show that the nonmoving party does not have 15 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 16 Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 17 If the moving party meets its initial burden, the burden shifts to the nonmoving party 18 to produce evidence supporting its claims or defenses. Nissan Fire, 210 F.3d at 1103. If 19 the nonmoving party does not produce evidence to show a genuine issue of material fact, 20 the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “The court 21 must view the evidence in the light most favorable to the nonmovant and draw all 22 reasonable inferences in the nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. 23 However, “the ‘mere existence of a scintilla of evidence in support of the plaintiff’s 24 position’” is insufficient to defeat a motion for summary judgment. Id. (quoting Anderson, 25 477 U.S. 242, 252 (1986)). “Where the record taken as a whole could not lead a rational 26 trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id. (quoting 27 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 28 1 III. REQUEST FOR JUDICIAL NOTICE 2 Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a fact 3 that is not subject to reasonable dispute because it . . . is generally known within the trial 4 court’s territorial jurisdiction; or . . . can be accurately and readily determined from sources 5 whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b). “[U]nder 6 Fed.R.Evid. 201, a court may take judicial notice of ‘matters of public record.’” Lee v. 7 City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v. South Bay Beer 8 Distrib., 798 F.2d 1279, 1282 (9th Cir.1986)). 9 Defendants ask the Court to take judicial notice of a map of the intersection of 10 Encinitas Boulevard and North El Camino Real. [Doc. No. 26-3; Doc. No. 26-2 at 4.] 11 Plaintiff has not opposed and Defendants’ request for judicial notice is GRANTED. 12 IV. DISCUSSION 13 Defendants contend that even relying on Plaintiff’s recollection of the facts, 14 Plaintiff’s claims for unlawful detention and excessive force both fail. Defendants also 15 move the Court for a finding of qualified immunity. 16 A. Unlawful Detention and Arrest 17 Defendants contend the detention was lawful because Deputy Esquer had reasonable 18 suspicion to briefly detain Plaintiff given the surrounding circumstances. Plaintiff argues 19 that Deputy Esquer lacked articulable reasonable suspicion to detain and search Plaintiff, 20 or even to investigate whether Plaintiff was able to care for his own safety. 21 The Fourth Amendment allows officers to conduct a brief investigatory stop if there 22 is a reasonable, articulable suspicion supporting the action. Terry v. Ohio, 392 U.S. 1, 21 23 (1968). “There is no bright line rule for determining when an investigatory stop crosses 24 the line and becomes an arrest.” Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th 25 Cir. 2002) (internal citations and quotations omitted). Instead, the court must consider 26 whether the detention was reasonable under the Fourth Amendment. Id. “This inquiry 27 requires [the court] to consider all the circumstances surrounding the encounter between 28 the individual and the police . . . by evaluating not only how intrusive the stop was, but 1 also whether the methods used by police were reasonable given the specific 2 circumstances.” Id. (internal citations, quotations, and brackets omitted). The court 3 considers “the extent to which liberty of movement is curtailed and the type of force or 4 authority employed.” United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir. 1996). 5 However, there is no rigid time limitation on investigative stops. Sharpe, 470 U.S. at 685. 6 Instead, when assessing whether a detention is too long to be justified as an investigative 7 stop, a court must “examine whether the police diligently pursued a means of investigation 8 that was likely to confirm or dispel their suspicions quickly, during which time it was 9 necessary to detain the defendant.” Id. at 686. 10 “In assessing whether a detention is too long in duration to be justified as an 11 investigative stop” a court must “examine whether the police diligently pursued a means 12 of investigation that was likely to confirm or dispel their suspicions quickly, during which 13 time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686 14 (1985). The U.S. Supreme Court warned against “unrealistic second-guessing” and 15 stressed that “the fact that the protection of the public might, in the abstract, have been 16 accomplished by less intrusive means does not, itself, render the search unreasonable.” Id. 17 at 687 (citations, internal quotations, and brackets omitted); see also Gallegos v. City of 18 Los Angeles, 308 F.3d 987, 992 (9th Cir. 2002) (“The Fourth Amendment does not mandate 19 one and only one way for police to confirm the identity of a suspect. It requires that the 20 government and its agents act reasonably.”) In addition, there is no bright-line time 21 limitation on the permissible length of detentions. Sharpe, 470 U.S. at 685. 22 Considering the totality of the circumstances and the detention as a whole, the Court 23 concludes that the investigatory stop was objectively reasonable. In September 2016, there 24 was a string of commercial burglaries in Encinitas. [Doc. No. 26-4 at ¶ 4.] On the night 25 of the incident, Defendants observed a lone vehicle in a Sprouts’ parking lot. [Id. at ¶ 6.] 26 Considering it was around two in the morning, all other shops were closed, and in light of 27 the recent burglaries, Defendants found this suspicious. [Id.] Deputy Esquer approached 28 the vehicle and spoke to a female driver, who stated she was waiting for someone but would 1 not answer other questions. [Id.] Deputy Esquer suspected the female driver and the 2 unknown companion she was waiting for could be involved in the burglaries. [Id.] Deputy 3 Esquer was later directed to Plaintiff walking along Encinitas Boulevard and North El 4 Camino Real. [Id. at ¶ 9.] Suspecting that Plaintiff could be the unknown companion the 5 female suspect was waiting for, Deputy Esquer drove to Plaintiff’s location and approached 6 him. [Id. at ¶¶ 10, 11.] Deputy Esquer observed that Plaintiff appeared intoxicated, was 7 physically fit and taller than him, there was low light, and he was not sure whether Plaintiff 8 was the unknown companion the female suspect had been waiting for. [Id.] For safety 9 reasons, Deputy Esquer placed Plaintiff in handcuffs to investigate if Plaintiff was involved 10 with the female suspect and to run a search on his vehicle computer. [Id. at ¶ 13.] Deputy 11 Mehalik eventually came and removed Plaintiff’s handcuffs after the search and 12 Defendants state the entire interaction lasted roughly ten minutes. [Id. at ¶¶ 15, 16.] 13 Plaintiff disputes the length of the stop and how he was placed in handcuffs. Plaintiff 14 contends Defendants did not have any articulable suspicion for the stop. However, there 15 is nothing in the record to suggest that even under Plaintiff’s recollection of the events, the 16 detention was unreasonable. Even if the stop lasted up to an hour, it would not result in a 17 per se unreasonable stop and nothing else in the record suggests that under the 18 circumstances the stop was unlawful. See United States v. Richards, 500 F.2d 1025, 1029 19 (9th Cir. 1974) (holding that an over-hour-long detention was lawful where officers 20 attempted to clarify the situation by calling FAA concerning ownership of an aircraft at 21 issue, and by telephoning other individuals to check on the detained individuals’ proffered 22 identifications and explanations); Gallegos, 308 F.3d at 992 (holding that a 45-minute to 23 one-hour detention to identify an individual was lawful, despite the fact that the officers 24 did not look at the individual’s license and registration, because officers chose another 25 procedure that was “virtually certain” to resolve the situation); United States v. McCarthy, 26 77 F.3d 522, 531 (1st Cir. 1996) (holding that a 75-minute detention was lawful because 27 the “excessive length of [the] detention arose not because the officers engaged in dilatory 28 tactics, but, instead, because their investigative efforts, though reasonable under the 1 circumstances, failed to dispel the suspicion that gave rise to the stop); Foley v. Kiely, 602 2 F.3d 28, 32–33 (1st Cir. 2010) (holding that an hour-long detention was “not problematic” 3 because the “delay was largely caused by the troopers’ attempts to confirm [a] warrant’s 4 validity.”); United States v. Maltais, 403 F.3d 550, 557–58 (8th Cir. 2005) (holding that a 5 2-hour and 55-minute detention was lawful under the circumstances); United States v. 6 Salgado, 761 F.3d 861, 866 (8th Cir. 2014) (holding an hour-long detention was lawful 7 because the length of detention was “attributable to the remote location, not to any lack of 8 diligence or unnecessary delay by law enforcement”). Accordingly, it was reasonable 9 under the circumstances for Defendants to detain Plaintiff and Defendants diligently 10 pursued a means of investigation to dispel their suspicion of Plaintiff. 11 B. Excessive Force 12 When a plaintiff alleges an officer used excessive force in the course of an arrest or 13 seizure, the constitutional right at issue is the Fourth Amendment right to be free from 14 “unreasonable seizures.” U.S. Const. amend. IV; Graham v. Connor, 490 U.S. 386, 394 15 (1989). “Determining whether the force used to effect a particular seizure is reasonable 16 under the Fourth Amendment requires a careful balancing of the nature and quality of the 17 intrusion of the individual’s Fourth Amendment interests against the countervailing 18 governmental interests at stake.” Id. at 396 (citations and internal quotation marks omitted) 19 (emphasis added). Because the reasonableness standard is not capable of precise definition 20 or mechanical application, “its proper application requires careful attention to the facts and 21 circumstances of each particular case, including [1] the severity of the crime at issue, [2] 22 whether the suspect poses an immediate threat to the safety of the officers or others, and 23 [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. 24 The reasonableness inquiry in excessive force cases is an objective one, the question 25 being whether the officer’s actions are objectively reasonable considering the facts and 26 circumstances confronting him, without regard to his underlying intent or motivation and 27 without the “20/20 vision of hindsight.” Graham, 490 U.S. at 396. These factors are not 28 exclusive, and a court must examine the totality of circumstances. Coles v. Eagle, 704 F.3d 1 624, 628 (9th Cir. 2012). 2 “Force is excessive when it is greater than reasonable under the circumstances,” 3 Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002), and “the reasonableness of force used 4 is ordinarily a question of fact for the jury.” Liston v. Cty. of Riverside, 120 F.3d 965, 976 5 n.10 (9th Cir. 1997). “Because [the excessive force] inquiry is inherently fact specific, the 6 determination whether the force used to effect an arrest was reasonable under the Fourth 7 Amendment should only be taken from the jury in rare cases.” Green v. City & Cty. of San 8 Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (internal quotation marks and citation 9 omitted); see also Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a 10 particular use of force was reasonable is rarely determinable as a matter of law.”). 11 Nevertheless, defendant officers “can still win on summary judgment if the district court 12 concludes, after resolving all factual disputes in favor of the plaintiff, that the officer’s use 13 of force was objectively reasonable under the circumstances.” Liston, 120 F.3d at 976 n.10 14 (citation omitted). 15 1. Nature of Intrusion 16 The Court first considers “the nature and quality” of the intrusion on Plaintiff’s 17 rights. Coles, 704 F.3d at 628. “The gravity of the particular intrusion that a given use of 18 force imposes upon an individual’s liberty interest is measured with reference to ‘the type 19 and amount of force inflicted.’” Young v. Cty. of L.A., 655 F.3d 1156, 1161 (9th Cir. 2011) 20 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001)). 21 Plaintiff’s excessive force claim involves both the act of handcuffing Plaintiff and 22 the removal of the handcuffs. The Court concludes that Plaintiff has not established a 23 prima facie case of a Fourth Amendment intrusion for purposes of the instant summary 24 judgment motion, where the evidence in the record establishes that Defendants employed 25 a level of force that is “low on the continuum of tactics available to police officers.” 26 Donovan v. Phillips, No. 3:14-cv-00680-CRB, 2015 WL 993324, at *5 (N.D. Cal. Mar. 4, 27 2015). 28 “The use of handcuffs during an arrest is quite common and often a ‘standard 1 practice’” and, “[o]rdinarily, the use of handcuffs during an arrest is a very low quantum 2 of force that will not constitute excessive force.” McFarland v. City of Clovis, No. 1:15- 3 cv-01530-AWI-SMS, 2017 WL 1348934, at *13 (E.D. Cal. Apr. 10, 2017) (citing Brown 4 v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)); see also Simon v. McMahon, 2019 WL 5 3059581, *7 (C.D. Cal. May 1, 2019) (“Simple handcuffing is not, by itself, excessive 6 force.”) (quoting Hoffman v. City of Los Angeles, No. CV 15-03724-FMO (ASx), 2016 7 WL 4698939, at *7 (C.D. Cal. Jan. 5, 2016)), report and recommendation adopted 2019 8 WL 3059499 (C.D. Cal. June 14, 2019); Dillman v. Tuolumne County, No. 1:13-CV-00404 9 LJO SKO, 2013 WL 1907379, at *7 (E.D. Cal. May 7, 2013) (“The mere application of 10 handcuffs during the course of an arrest does not, in and of itself, give rise to a section 1983 11 claim for excessive force” because “[t]he right to make an arrest carries with it the right to 12 use ‘some degree of physical coercion.’”) (and cases cited therein). Nevertheless, the 13 manner in which an individual is handcuffed may, under some circumstances, amount to 14 excessive force. See Wall v. County of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (“It 15 is well-established that overly tight handcuffing can constitute excessive force.”). In 16 evaluating the amount of force used, courts may consider the severity of injuries. Felarca 17 v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018). Likewise, courts “may infer from the 18 minor nature of a plaintiff’s injuries that the force applied was minimal.” Id. (“While 19 injuries are not a precondition to section 1983 liability, their absence can suggest a lesser 20 degree of force when that force is of the type likely to cause injuries.”). 21 Defendants contend that the initial handcuffing of Plaintiff was objectively 22 reasonable and that the record fails to support Plaintiff’s allegation regarding the force used 23 to remove the handcuffs. Plaintiff counters that a reasonable jury could find that 24 Defendants’ use of handcuffs and manipulation of Plaintiff’s arms behind his back could 25 constitute unreasonable or excessive force. 26 Plaintiff told Defendants he was disabled and could not put his arms behind his back. 27 [Doc. No. 28 at 11.] Defendants then asked how far he could put his arms back and 28 handcuffed Plaintiff. [Id.] Defendants placed Plaintiff on a curb, but after Plaintiff asked 1 if he could sit somewhere else or stand instead Defendants moved Plaintiff to sit on a ledge 2 that was higher up. [Id. at 12.] Plaintiff contends he was there for about thirty minutes 3 until they proceeded to take the handcuffs off. [Id.] Plaintiff testified that while he was 4 still sitting down, his arms were raised above his head and tore both of his shoulders out of 5 socket. [Id.] The act of removing the handcuffs took roughly another thirty minutes as 6 Plaintiff continued to complain of pain. [Id.] 7 Deputy Esquer states that Plaintiff did not say he had trouble putting his hands 8 behind his back or complain of any other injury, and that Plaintiff placed his hands behind 9 his back to be handcuffed at his request. [Doc. No. 26-4, ¶ 11.] Deputy Esquer checked 10 the handcuffs for tightness and double locked them to prevent tightening. [Id. at ¶ 12.] 11 Once Deputy Mehalik arrived Deputy Esquer asked him to stay with Plaintiff as he went 12 to run Plaintiff’s information on his vehicle computer. [Id. at ¶ 13.] After speaking for a 13 few minutes, Plaintiff complained his shoulders were hurting due to a prior injury and 14 Deputy Mehalik directed Plaintiff to sit on a nearby retaining wall. [Doc. No. 26-5, ¶ 11.] 15 After Deputy Esquer finished his investigation and took pictures, Deputy Mehalik removed 16 the handcuffs, which he states took him a total of five to eight seconds to remove. [Id. at 17 ¶ 13.] Both Defendants recall Plaintiff thanking them, and Deputy Esquer states the entire 18 interaction lasted about ten minutes. [Doc. No. 26-4, ¶¶ 15-16.] Defendants attached the 19 Computer Aided Dispatch (“CAD”) Report in further support of their timeline and the 20 pictures that Deputy Esquer took at the time of the incident. [Doc. No. 26-2 at 12; 63— 21 65.] The CAD report comports with the Defendants’ timeline of roughly ten minutes of 22 total interaction. The pictures show Plaintiff shirtless sitting on a ledge with his arms 23 behind his back, but it is not readily apparent whether or not he was experiencing any pain 24 or discomfort at the time the pictures were taken. 25 Plaintiff has not proffered any substantial medical evidence to support his own 26 testimony or the vague testimony of his friends that the incident caused him any injury or 27 pain. Plaintiff offers no medical records but instead relies on two pages of deposition 28 testimony from a physician, Dr. Susan Glockner, on her recollection of Plaintiff’s visits 1 which would last around 10 minutes. [Doc. No. 28 at 77.] Dr. Glockner states that 2 Plaintiff’s injuries, consistent with the description he gave her for how they occurred, could 3 have resulted in a labral tear. [Id. at 78.] However, she also states that the description 4 Plaintiff gave her about his injuries involved the use of the word “straight jacket.” [Id. at 5 77.] There is nothing in the record that supports Defendants placed Plaintiff in a way 6 similar to being held in a straitjacket. Moreover, the Court notes that it is not clear from 7 the excerpts Plaintiff provided of Dr. Glockner’s deposition whether she was functioning 8 as his treating physician at the time which would limit what Dr. Glockner would be able to 9 testify to. As there is no expert report provided from Dr. Glockner the scope of her 10 testimony is limited to information learned from and opinions developed during actual 11 treatment and may not offer forward-looking speculation, or any other conclusion reached 12 with the benefit of hindsight.2 13 Defendants contend that any injuries Plaintiff claims were pre-existing and could not 14 have been caused by the incident. In support, Defendants offer the expert report of Dr. 15 Robert Eastlack who performed a medical examination of Plaintiff. [Doc. No. 26-2 at 67— 16 85.] Dr. Eastlack states that Plaintiff’s “particular recounting of the incident is extremely 17 unlikely, and bordering on the impossible.” [Id. at 83.] Further, Dr. Eastlack states, “It 18 would be reasonable to conclude that [Plaintiff’s] preexisting disease within the shoulders 19 may have incurred an irritation or a flareup during the handcuffing episode by the police, 20 but no new injury would likely have occurred.” [Id. at 84.] Based on the record before the 21 Court, Plaintiff has failed to rebut the Defendants’ contention that the handcuffing caused 22 any injury to Plaintiff. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 23 (9th Cir. 2001) (finding plaintiff’s “claim of injury is equally unsupported as she does not 24 provide any medical records to support her claim that she suffered injury as a result of [the 25 26 27 2 The Ninth Circuit has held that “a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the course of treatment.” Goodman 28 1 officers’ use of force]”); Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir. 2 1990) (“We do not believe that [Plaintiff’s] allegations of pain as a result of being 3 handcuffed, without some evidence of more permanent injury, are sufficient to support his 4 claim of excessive force.”). 5 2. Governmental Interests at Stake 6 Under Graham v. Connor, the Court evaluates the government’s interest in the use 7 of force by examining three core factors: (1) the severity of the crime at issue; (2) whether 8 the suspect poses an immediate threat to the safety of the officers or others; and (3) whether 9 the suspect is actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 10 396; see also Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Bryan v. 11 MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). These factors are not exclusive and are 12 “simply a means by which to determine objectively ‘the amount of force that is necessary 13 in a particular situation.’” Deorle, 272 F.3d at 1280 (quoting Graham, 490 U.S. at 396- 14 97). In other words, the Court examines the totality of the circumstances and considers 15 “whatever specific factors may be appropriate in a particular case, whether or not listed in 16 Graham.” Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). For example, in some 17 cases the Court may find it necessary to consider the availability of alternative methods of 18 capturing or subduing a suspect. See Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 19 2005). Although officers need not employ the least intrusive degree of force possible, they 20 must consider less intrusive methods of effecting an arrest, and the presence of feasible 21 alternatives factors into the Graham analysis. Bryan, 630 F.3d at 831. 22 Defendants do not suggest that Plaintiff attempted to flee or resist arrest. In fact, the 23 record suggests Plaintiff was respectful of the deputies throughout the interaction. 24 However, Deputy Esquer states that due to being alone before Deputy Mehalik’s arrival, 25 the time of day, Plaintiff’s appearance of being strong and fit, and Plaintiff possibly being 26 intoxicated, Deputy Esquer felt it was necessary to handcuff Plaintiff for officer safety. In 27 light of these circumstances, the Court finds this minimal level of force was objectively 28 reasonable. 1 3. Balancing the Interests 2 Ultimately, the Court must balance the severity of the intrusion with the 3 government’s interest. Here, the force used against Plaintiff in this case was minimal and 4 the officers had a significant interest in protecting themselves and the public. Construing 5 the facts in the light most favorable to Plaintiff, there is no triable issue: Defendants’ use 6 of force was objectively reasonable under the circumstances and did not violate the Fourth 7 Amendment. 8 C. Search and Seizure 9 The parties disagree on whether Plaintiff made a valid unreasonable search and 10 seizure claim. The caption of Plaintiff’s complaint labels claim one as unlawful detention 11 and arrest and labels claim two as excessive force. Within the complaint itself, Plaintiff’s 12 first claim for relief is labeled “Unreasonable Search and Seizure – Excessive Force.” 13 [Doc. No. 1 at 10.] Defendants argue in their reply that Plaintiff failed to plead an unlawful 14 search claim. The Court agrees. Federal Rule of Civil Procedure 10 requires a party to 15 “state its claims or defenses in numbered paragraphs, each limited as far as practicable to 16 a single set of circumstances . . . If doing so would promote clarity, each claim founded on 17 a separate transaction or occurrence . . . must be stated in a separate count[.]” Fed. R. Civ. 18 P. 10(b). “Separate counts will be required if necessary to enable the defendant to frame a 19 responsive pleading or to enable the court and the other parties to understand the claims.” 20 Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000) (citation omitted). 21 “Courts have required separate counts where multiple claims are asserted, where they arise 22 out of separate transactions or occurrences, and where separate statements will facilitate a 23 clear presentation.” Id. at 840-41. “In such cases, separate counts permit pleadings to 24 serve their intended purpose to frame the issue and provide the basis for informed pretrial 25 proceedings.” Id. at 841. “‘Experience teaches that, unless cases are pled clearly and 26 precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes 27 unmanageable, the litigants suffer, and society loses confidence in the court’s ability to 28 administer justice.’” Id. (citations omitted). Accordingly, Plaintiff failed to plead a valid 1 unlawful search claim. 2 Nevertheless, Plaintiff’s unlawful search allegation amounts to Plaintiff telling the 3 Defendants he did not consent to a search and Defendants searching his person anyway. 4 As discussed previously, Deputy Esquer stated that at the time of the incident, he was 5 investigating any connection Plaintiff might have had to the female suspect and the 6 commercial robberies, was evaluating whether Plaintiff posed a significant danger to 7 himself or others, and Plaintiff appeared physically stronger than him. Under these 8 circumstances, it was not unreasonable for an officer to conduct a brief pat-down of 9 Plaintiff during the investigatory stop. Sialoi v. City of San Diego, 823 F.3d 1223, 1236 10 (9th Cir. 2016) (internal quotation marks omitted) (quoting United States v. I.E.V., 705 11 F.3d 430, 434 (9th Cir. 2012) (“Incident to a valid investigatory stop, an officer may, 12 consistent with the Fourth Amendment, conduct a brief pat-down (or frisk) of an individual 13 when the officer reasonably believes that the persons with whom he is dealing may be 14 armed and presently dangerous.”)). “This interest in the safety of the officers and others 15 nearby is the ‘sole justification’ for a Terry frisk.” Id. (quoting I.E.V., 705 F.3d at 435). 16 Accordingly, it was objectively reasonable under the circumstances for a brief pat-down in 17 the interest of the safety of the officers and others nearby. 18 D. Qualified Immunity 19 Even if the Court were to conclude a reasonable jury could find that Defendants 20 unlawfully detained Plaintiff or used excessive force, Defendants would nonetheless be 21 entitled to qualified immunity. “Qualified immunity shields government actors from civil 22 liability under 42 U.S.C. § 1983 if ‘their conduct does not violate clearly established 23 statutory or constitutional rights of which a reasonable person would have known.’” See 24 Castro v. City of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016) (en banc) (quoting 25 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It “protects ‘all but the plainly 26 incompetent or those who knowingly violate the law.’” Mueller v. Auker, 576 F.3d 979, 27 992 (9th Cir. 2009) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because “[i]t is 28 ‘an immunity from suit rather than a mere defense to liability . . . it is effectively lost if a 1 case is erroneously permitted to go to trial.’” Id. (quoting Mitchell v. Forsyth, 472 U.S. 2 511, 526 (1985)) (emphasis in original). To that end, the Supreme Court has “repeatedly . 3 . . stressed the importance of resolving immunity questions at the earliest possible stage in 4 litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). To determine whether Deputies 5 Mehalik and Esquer are immune from suit, the Court must consider “whether [their] 6 conduct violated a constitutional right, and if so, whether that right was clearly established 7 at the time of the event in question.” Mueller, 576 F.3d at 993 (citing Saucier v. Katz, 533 8 U.S. 194, 206 (2001)). 9 “[T]he plaintiff bears the burden of showing that the rights allegedly violated were 10 ‘clearly established.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). “[C]learly 11 established law should not be defined at a high level of generality.” White v. Pauly, 137 12 S.Ct. 548, 552 (2017) (internal quotation marks and citation omitted). To the contrary, 13 “the clearly established law must be ‘particularized’ to the facts of the case.” Id. Although 14 there need not be “a case directly on point, [] existing precedent must have placed the 15 statutory or constitutional question beyond debate.” S.B. v. Cty. of San Diego, 864 F.3d 16 1010, 1015 (9th Cir. 2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)); see also 17 District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (“The precedent must be clear 18 enough that every reasonable official would interpret it to establish the particular rule the 19 plaintiff seeks to apply.”). 20 The question here then is whether, at the time of the incident in September 2016, the 21 law was clearly established that officers could not use minor force under the circumstances 22 after drawing all reasonable inferences in Plaintiff’s favor. The Court concludes that it was 23 not. Plaintiff has failed to meet his burden of “identify[ing] a case where an officer acting 24 under similar circumstances as [Esquer and Mehalik] was held to have violated the Fourth 25 Amendment.” Sharp, 871 F.3d at 911 (“Plaintiffs must point to prior case law that 26 articulates a constitutional rule specific enough to alert these deputies in this case that their 27 particular conduct was unlawful.”) (emphasis in original). Nor has the Court located any 28 authority that would have alerted Deputy Esquer and Mehalik that the degree of force they 1 || used, in the specific situation they confronted, was excessive under the Fourth Amendment. 2 ||To the contrary, the Ninth Circuit has found far more aggressive police conduct to be 3 || objectively reasonable, even where the conduct resulted in serious physical injury. See, 4 lle.g., Tatum, 441 F.3d at 1097 (finding the officer’s use of a control hold to force a suspect 5 ||to the ground on his stomach was objectively reasonable); Jackson vy. City of Bremerton, 6 F.3d 646, 652-53 (9th Cir. 2001) (applying Graham and concluding that spraying 7 plaintiff's hair with a chemical irritant prior to her arrest, pushing her to the ground to 8 handcuff her, roughly pulling her to her feet during her arrest, and forcing her to sit in the 9 || patrol car with the windows up in the July heat was not excessive force). Accordingly, the 10 || Court finds that Defendants’ minimal use of force under the circumstances did not violate 11 |}clearly established law and they are therefore entitled to qualified immunity. 12 Vv. CONCLUSION 13 For the reasons set forth above, Defendants’ motion for summary judgment [Doc. 14 || No. 26] is GRANTED. The parties’ joint motion to vacate or continue pretrial deadlines 15 [Doc. No. 31] is therefore DENIED as moot. 16 || Dated: June 3, 2020 € 17 Hon. Cathy Ann Bencivengo 18 United States District Judge 19 20 21 22 23 24 25 26 27 28