1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 2:24-cv-01371-JAD-DJA
4 Mickyas Berhanemeskel, Order Denying Plaintiff’s Motion for 5 Plaintiff Summary Judgment, Granting v. Defendant’s Motion for Summary 6 Judgment, and Denying as Moot Plaintiff’s Sergio Lopez, et al., Motions for Status Check 7 Defendants [ECF Nos. 70, 151, 179, 180, 181] 8
9 Las Vegas Metropolitan Police Officers Sergio Lopez, Trevor Rundus, and Kade Lorson 10 arrested pro se plaintiff Mickyas Berhanemeskel after his ex-girlfriend reported that he broke 11 into her apartment using a pocketknife. Berhanemeskel now sues those officers under 42 U.S.C. 12 § 1983, alleging that they violated his First, Fourth, and Fourteenth Amendment rights against 13 excessive force, deliberate indifference to serious medical needs, and retaliation. Both parties 14 move for summary judgment. Because the officers are entitled to qualified immunity on all 15 claims, I grant the officers’ motion, deny Berhanemeskel’s, and close this case. 16 Background 17 The parties dispute what happened on February 25, 2024, when the officers arrested 18 Mickyas Berhanemeskel outside Beza Buruk’s apartment. Berhanemeskel says he returned to 19 Buruk’s apartment that evening after spending part of the day there and entered through a back- 20 bedroom window that Buruk routinely left unlocked for him.1 21 22 23
1 ECF No. 151-2 at 11–12 (Berhanemeskel’s deposition). 1 The officers’ account begins with a different premise that Buruk called 911 and reported 2 that her ex-boyfriend had broken into her apartment using a knife.2 Officer Lorson, who had 3 interacted with Buruk earlier that day about a similar issue with Berhanemeskel, arrived first.3 4 Buruk informed the officers that she was the only person on the lease and that Berhanemeskel 5 knew that he was not supposed to be there.4 She recounted that after she refused to let
6 Bernhanemeskel in, he tried and succeeded in entering the apartment using a pocketknife.5 She 7 stated that she’d fled the apartment because she feared for her safety, and she provided 8 paperwork for a temporary protection order against Berhanemeskel that had not yet been served.6 9 Just how Berhanemeskel found himself inside Buruk’s apartment matters not. It’s what 10 happened next that is the subject of this lawsuit. And Berhanemeskel alleges that those next 11 events constitute excessive force, deliberate indifference to serious medical needs, and 12 retaliation, violating his constitutional rights. 13 A. Berhanemeskel claims that the arrest caused him injury and that the officers 14 delayed medical care to cover it up.
15 Berhanemeskel’s account of the arrest begins with him “outside his address,” facing 16 armed officers and following commands.7 He says that the officers ordered him to the ground, 17 18
19 2 ECF No.151-1 at 2 (declaration of arrest report). 20 3 Id. 4 Id.; Officer Lorson’s bodycam footage T02:30:50Z. The defendants submitted all the officers’ 21 body-cam footage to the court, but Lorson’s is the only bodycam footage with audio. See, e.g., ECF No. 153, 173. 22 5 Id. 23 6 Id. 7 ECF No. 87 at 3 (second amended complaint). 1 directed him to place his hands over his head, and told him to lift and cross his feet.8 Because he 2 contends that he complied with all those commands, he describes the next moments as an 3 unnecessary escalation.9 Officers “jumped” onto his feet and drove his crossed legs toward his 4 back until his feet “slammed” into his lower back, causing “excruciating and agonizing” pain 5 that shot from his lower back up to his neck.10 And once his hands were cuffed behind his back,
6 an officer used “extreme force” by yanking his arm hard enough to injure his shoulder.11 He also 7 attributes lingering back problems to that night and, in his summary-judgment motion, 8 Berhanemeskel adds that he now permanently wears a back brace, takes daily pain medication, 9 and has been medically excused from a firefighting program.12 10 Berhanemeskel also frames the minutes that followed his arrest as deliberate indifference 11 to his medical needs. He says that he struggled to breathe and asked to be taken to the hospital, 12 but the officers resisted allowing EMTs to transport him.13 Firefighters intervened by warning 13 that refusing transport would be unlawful and that the officers would bear responsibility if he 14 died in custody while visibly having trouble breathing.14 Only then, he says, did the officers
15 allow EMTs to take him to the University Medical Center (UMC) hospital to be evaluated.15 16 Berhanemeskel’s retaliation theory also springs from that medical-care dispute. He 17 alleges that the officers anticipated that hospital treatment would document his injuries and 18
8 Id. 19 9 Id. 20 10 Id. 21 11 Id. 12 ECF No. 70 at 4. 22 13 ECF No. 87 at 4. 23 14 Id. 15 Id. 1 “follow with a lawsuit.” So they denied or delayed care to conceal what Berhanemeskel 2 characterizes as unconstitutional force.16 3 B. Body-worn cameras documented the arrest, search, and the start of medical 4 transport.
5 The encounter was recorded on all three officers’ body-worn cameras, though only 6 Lorson’s footage includes audio. It plainly shows that the officers spy Berhanemeskel coming 7 down from Buruk’s apartment.17 The officers draw lethal and non-lethal weapons and order 8 Berhanmeskel to show his hands and turn away.18 Berhanemeskel gets on the ground, so an 9 officer tells him to put his arms out with his heels to his butt.19 Officer Lopez then positions 10 himself on top of Bernhanemeskel’s legs, while he and Officer Rundus work to control 11 Berhanemeskel’s hands and affix handcuffs.20 Both officers release their hold once the 12 handcuffs are secured, and Officer Lopez is seen turning Bernhanemeskel while he is on the 13 ground to search him.21 An officer asks whether he has a knife; Berhanemeskel replies that he 14 did not.22 15 The footage then shows the officers escorting Berhanemeskel to a patrol car.23 Officer 16 Lorson’s footage shows him running a records check inside the patrol car24 while the other 17 16 Id. at 5. 18 17 Officer Lorson’s bodycam footage, T02:35:32Z; ECF No. 151-1 at 2. 19 18 Officer Lorson’s bodycam footage, T02:35:50Z–T02:36:13Z. 19 Id. 20 20 Officer Rundus’s bodycam footage, T02:36:29Z– T02:36:50Z. 21 21 Officer Lopez’s bodycam footage, T02:36:53Z–T02:36:09Z. 22 22 Officer Lorson’s bodycam footage, T02:36:50Z. Later, officers found two knives inside Buruk’s apartment that she claimed were not hers. ECF No. 151-1 at 2. 23 23 Officer Lorson’s bodycam footage, T02:37:14Z–T02:38:08Z. 24 Officer Lorson’s footage ends inside the patrol car. 1 officers remain outside with Berhanemeskel. Because the other cameras lack audio, the record 2 does not reveal precisely when Berhanemeskel informed the officers of his breathing problems 3 or when the Clark County Fire Department and medical were dispatched for it,25 but these 4 services arrive less than 20 minutes later.26 Berhanemeskel is placed on a stretcher, and Officer 5 Lopez’s footage shows him briefly pausing the transport before Berhanemeskel is loaded into the
6 ambulance.27 7 C. Both parties move for summary judgment. 8 Berhanemeskel does not attach any evidence to his motion but does to his opposition to 9 the officers’ motion. In both the officers’ opposition to Berhanemeskel’s motion and their own 10 summary-judgment motion, the officers argue that the body-worn-camera footage squarely 11 contradicts Berhanemeskel’s account and that they are entitled to qualified immunity.28 12 Berhanemeskel maintains that genuine disputes of material fact prevent the court from granting 13 summary judgment on the immunity issue and instead must be resolved at trial. He has also filed 14 three requests for status updates, asking about the case’s progress and the status of the trial
15 date.29 16 17 18 19 20
21 25 ECF No. 166 at 77. 26 Officer Rundus’s bodycam footage, T02:54:44Z. 22 27 Officer Lopez’s bodycam footage, T03:01:48Z–03:02:30Z. 23 28 ECF No. 151 at 9. 29 ECF No. 179 at 1; ECF No. 180 at 1; ECF No. 181 at 1. 1 Discussion 2 A. Standards for cross motions for summary judgment 3 The principal purpose of the summary-judgment procedure is to isolate and dispose of 4 factually unsupported claims or defenses.30 The moving party bears the initial responsibility of 5 presenting the basis for its motion and identifying the portions of the record or affidavits that
6 demonstrate the absence of a genuine issue of material fact.31 If the moving party satisfies its 7 burden with a properly supported motion, the burden then shifts to the opposing party to present 8 specific facts that show a genuine issue for trial.32 9 Who bears the burden of proof on the factual issue in question is critical. When the party 10 moving for summary judgment would bear the burden of proof at trial (typically the plaintiff), “it 11 must come forward with evidence [that] would entitle it to a directed verdict if the evidence went 12 uncontroverted at trial.”33 Once the moving party establishes the absence of a genuine issue of 13 fact on each issue material to its case, “the burden then moves to the opposing party, who must 14 present significant probative evidence tending to support its claim or defense.”34
15 When instead the opposing party would have the burden of proof on a dispositive issue 16 at trial, the moving party (typically the defendant) doesn’t have to produce evidence to negate the 17 opponent’s claim; it merely has to point out the evidence that shows an absence of a genuine 18
19 30 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 31 Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). 20 32 Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Auvil v. CBS 21 60 Minutes, 67 F.3d 816, 819 (9th Cir. 1995). 33 C.A.R. Transp. Brokerage Co. v. Darden Rests, Inc., 213 F.3d 474, 480 (9th Cir. 2000) 22 (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (citation and quotations omitted)). 23 34 Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (citation omitted). 1 material factual issue.35 The movant need only defeat one element of the claim to garner 2 summary judgment on it because “a complete failure of proof concerning an essential element of 3 the nonmoving party’s case necessarily renders all other facts immaterial.”36 “When 4 simultaneous cross-motions for summary judgment on the same claim are before the court, the 5 court must consider the appropriate evidentiary material identified and submitted in support
6 of”—and against—“both motions before ruling on each of them.”37 7 B. The doctrine of qualified immunity shields the officers from all of Bernhanemeskel’s 8 claims.
9 The doctrine of qualified immunity protects government officials “from money damages 10 unless a plaintiff pleads facts showing that (1) the official violated a statutory or constitutional 11 right, and (2) the right was ‘clearly established’ at the time of the challenged conduct.”38 When a 12 defendant raises this affirmative defense, the plaintiff bears the burden of demonstrating that 13 both prongs are met. Although the evidence must be considered in the light most favorable to 14 the plaintiff,39 the plaintiff’s version of events should not be adopted if there is video evidence 15 that “tells quite a different story.”40 The plaintiff’s failure to establish either prong compels 16 summary judgment in favor of the defendant on qualified-immunity grounds. Courts “have 17
18 35 See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Celotex, 477 U.S. at 323– 24. 19 36 Celotex, 477 U.S. at 322. 20 37 Tulalip Tribes of Washington v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015) (citing Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001)). 21 38 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 22 818 (1982)). 39 Isayeva v. Sacramento Sheriff’s Dep’t., 872 F.3d 938, 946 (9th Cir. 2017); Tolan v. 23 Cotton, 572 U.S. 650, 657 (2014). 40 See Scott v. Harris, 550 U.S. 372, 379–81 (2007). 1 discretion to choose which qualified-immunity prong to address first” and, depending on the 2 conclusion reached for the first-analyzed prong, “need not address the other.”41 3 For a right to be clearly established, it must be “sufficiently clear that every reasonable 4 official would understand that what he is doing violates that right.”42 The “rule must be settled 5 law, which means it is dictated by controlling authority or a robust consensus of cases of
6 persuasive authority.”43 And the right may not be characterized “at a high level of generality.”44 7 Instead, “[t]he dispositive question is whether the violative nature of particular conduct is clearly 8 established.”45 The takeaway from the Supreme Court’s recent qualified-immunity jurisprudence 9 is that a court’s analysis of the clearly-established-law prong “must be undertaken in light of the 10 specific context of the case, not as a broad general proposition”46 11 1. Berhanemeskel has not shown the violation of a clearly established Fourth 12 Amendment right.
13 Berhanemeskel advances three excessive-force theories under the Fourth Amendment. 14 He contends that the officers used excessive force by (1) drawing their weapons while he had his 15 hands up and was facing away;47 (2) applying bodyweight pressure to his back and legs while he 16 was complying, driving his crossed legs toward his back until his feet “slammed” into his lower 17 18
19 41 Isayeva, 872 F.3d at 946 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). 42 Smith v. Agdeppa, 81 F.4th 994, 1001 (9th Cir. 2023) (quoting Mullenix v. Luna, 577 U.S. 7, 20 11–12 (2015)). 21 43 Id. 44 Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at 742). 22 45 Id. 23 46 Id. 47 ECF No. 70 at 6. 1 back; 48 and (3) “yanking” his arm with “extreme force” after he was handcuffed, injuring his 2 shoulder. 49 He argues that qualified immunity “has to be lifted” because he complied with 3 directions yet “sustained serious injuries.”50 4 a. Berhanemeskel’s weapon-drawing theory is unsupported by the record.
5 Berhanemeskel’s first excessive-force theory is based on the officers’ decision to draw 6 their weapons while, in his telling, he stood facing away with his hands up.51 But the bodycam 7 footage contradicts the factual premise as he frames it. Officer Lorson’s video shows that the 8 officers drew their weapons while Berhanemeskel was still approaching them.52 And it is clear 9 from that footage that he turned away only after an officer ordered him to do so.53 So the 10 evidence plainly shows no facts to support this theory. 11 b. There is no clearly established law prohibiting the use of bodyweight on a prone suspect’s legs until handcuffs are secured under these 12 circumstances.
13 Berhanemeskel’s second theory is that the officers “jumped on his feet” and applied full 14 body weight, forcing his legs up until his feet slammed into his lower back.54 In his deposition, 15 Berhanemeskel describes it this way: “all three officers rushed me on my back. I felt the weight 16 of three officers, and I hurt my back.”55 The defendants dispute this description of events and 17 argue that the footage belies it. 18
48 ECF No. 87 at 3. 19 49 Id. 20 50 ECF No. 166 at 11. 21 51 ECF No. 70 at 6. 52 Officer Lorson’s bodycam footage, T02:35:52Z. 22 53 Id. at T02:35:59Z. 23 54 ECF No. 87 at 3. 55 ECF No. 151-2 at 13. 1 The video does not show Officer Lopez “jumping” on Berhanemeskel’s legs, nor does it 2 show him placing weight on Berhanemeskel’s upper back.56 At most, it shows pressure being 3 applied to Berhanemeskel’s legs—Lopez’s body appears to be on top of Berhanemeskel’s legs, 4 and the heels of Berhanemeskel’s feet reach up to his butt at most.57 But the video makes it 5 difficult to quantify how much force was applied. Because I cannot reliably measure the force
6 from the footage alone, I resolve that factual ambiguity in Berhanemeskel’s favor for purposes of 7 qualified immunity and assume that the level of force was significant enough to cause the 8 injuries he claims.58 9 But even with that assumption, Berhanemeskel’s response does little to meet his burden 10 on the clearly established prong of the qualified-immunity inquiry. He asserts that he was 11 compliant, but he does not explain why a reasonable officer would have understood that this 12 brief leg-pressure restraint during handcuffing was unlawful under these circumstances. The 13 Ninth Circuit’s clearly established excessive-force cases in the prone-restraint context involve 14 substantially more serious circumstances like prolonged pressure on the neck, torso, or back that
15 restricts breathing or blood flow after the individual is restrained and no longer resisting. In 16 Drummond ex rel. Drummond v. City of Anaheim, for example, officers restrained a mentally ill 17 man who was not wanted for any crime.59 Once prone and handcuffed, he did not resist, yet two 18 56 Officer Lopez’s bodycam footage, T02:36:27Z. 19 57 Officer Rundus’s bodycam footage, T02:36:37Z. 20 58 Berhanemeskel also reported to the responding paramedics that after the officers tackled and handcuffed him, he was experiencing chest and back pain and difficulty breathing. ECF No. 166 21 at 70. He told them that he had a preexisting back injury from a December 2023 car accident. Id. He also reported intermittent shortness of breath for the preceding few weeks and attributed 22 stress and anxiety to personal problems with his girlfriend. Id. He admitted that he had been drinking that night and denied any other complaints at that time. Id. But he did not tell the 23 officers about that medical history during the alleged use of force or immediately afterward. 59 Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003). 1 officers pressed their weight onto his neck and torso, “crushing him against the ground,” and 2 they did not remove that pressure despite his pleas for air.60 The Ninth Circuit concluded that 3 this conduct was “clearly constitutionally excessive” and that the officers were not entitled to 4 qualified immunity because any reasonable officer should have known that pressing weight on a 5 compliant, handcuffed person’s neck and torso despite cries for air is excessive force.61
6 The Ninth Circuit’s decision in Gregory v. County of Maui illustrates Drummond’s limits. 7 The panel upheld the officers’ use of a prone restraint to disarm and handcuff a resisting suspect 8 even though the restraint included pressure to the back and neck, and he stated that he could not 9 breathe.62 It distinguished Drummond because the suspect was holding a pen as a weapon, acted 10 aggressively, assaulted someone earlier, and trespassed.63 The court also found it significant that 11 unlike in Drummond, the officers in Gregory “ceased using force once Gregory was 12 handcuffed.”64 On those facts, the panel held that the officers “reasonably used the minimal 13 force necessary to disarm and to restrain Gregory.”65 14 The Ninth Circuit has applied Drummond to find it clearly established that officers may
15 not maintain dangerous, compressive force on a restrained person for a “significant period” after 16 resistance has ceased, but it has also declined to extend Drummond to brief, seconds-long 17 restraint that is materially less severe. In Zelaya v. Las Vegas Metropolitan Police Department, 18
19 60 Id. 20 61 Id. at 1061–62. 62 Gregory v. Cnty. of Maui, 523 F.3d 1103, 1105 (9th Cir. 2008). When the officers sat him up 21 after handcuffing him, they discovered that he was not breathing. Id. An autopsy attributed his death to a heart attack due to severe heart disease and marijuana intoxication. Id. 22 63 Id. at 1108–1109. 23 64 Id.; Arce v. Blackwell, 294 F. App’x 259, 261–62 (9th Cir. 2008). 65 Gregory, 523 F.3d at 1109. 1 after officers got the detainee to the ground and handcuffed him, a video showed him motionless 2 and unresisting for more than 90 seconds while officers continued to pin him with their body 3 weight and bend his legs toward his torso.66 The Ninth Circuit applied Drummond but found that 4 whether 90 seconds constituted a significant period of time, such that Drummond supplied the 5 clearly established rule, precluded summary judgment.67 The Ninth Circuit panel in A.B. v.
6 County of San Diego, by contrast, held that even assuming deputies used more force than 7 necessary for 30 seconds after the detainee stopped moving, no clearly established law put them 8 on notice that this brief continuation was excessive.68 The A.B. panel distinguished its facts from 9 Drummond because the Drummond force involved materially more dangerous compression 10 (kneeling on the neck).69 11 The unlawful conduct that Drummond and its progeny clearly establish crosses a line that 12 the officers’ conduct here falls short of. The officers responded to Buruk’s report that 13 Berhanemeskel had broken in with a knife. So even though no officer saw a knife in 14 Berhanemeskel’s hands, they had reason to treat the encounter as a potential home-invasion
15 arrest involving a weapon. And unlike the plaintiffs in the Drummond line of cases, 16 Berhanemeskel did not appear to struggle for air or report pain during the restraint; he continued 17 speaking with the officers while they secured him. The footage also does not show compressive 18 pressure on his neck, back, or torso. It shows Officer Lopez positioned over Berhanemeskel’s 19 legs while Officers Lopez and Rundus secured his hands—a hold that ended roughly 30 seconds 20 later once the handcuffs were on. These facts align this case more with A.B. than Drummond. 21 66 Zelaya v. L.V. Metro. Police Dep’t, 682 F. App’x 565, 567 (9th Cir. 2017). 22 67 Id. 23 68 A.B. v. Cnty. of San Diego, 2022 WL 1055558, at *1–2 (9th Cir. Apr. 8, 2022). 69 Id. 1 So even accepting Berhanemeskel’s account that he was compliant and the leg pressure caused 2 his claimed injury, existing precedent did not place the unlawfulness of this brief leg-restraint 3 maneuver beyond debate, and the defendants enjoy qualified immunity from liability for this 4 theory.70 5 c. There is no clearly established law that would have put a reasonable officer on notice that the described post-handcuff “repositioning” during a search was 6 unlawful.
7 Berhanemeskel’s third theory is that, after his hands were cuffed, an officer “yanked” his 8 arm with “extreme force,” injuring his shoulder.71 He does not pin down in his pleadings when 9 this occurred. But in his deposition, Berhanemeskel described an officer “grabbing” him and 10 “yanking [his] shoulder left and right” while “manhandling” him.72 Read alongside the bodycam 11 footage, that account appears to describe the officers’ efforts to search and reposition 12 Berhanemeskel on the ground. 13 The footage shows Berhanemeskel laying on his right side with his knees turned to the 14 right as an officer searches his left pockets using his left hand.73 To reposition him, the officer 15 threads his left hand beneath Berhanemeskel’s left arm and places his right hand behind and 16
17 70 Berhanemeskel cites Metro’s internal use-of-force policies to argue that qualified immunity doesn’t apply. ECF No. 166 at 11. He did not attach those policies to his opposition, but he 18 asserts that Metro requires officers to use a low level of force that does not cause injury and that Officer Lopez employed a disapproved prone-restraint tactic. Id. Berhanemeskel does not argue 19 how those policies, on their own, can satisfy the clearly-established prong. See D.C. v. Wesby, 583 U.S. 48, 64 (2018) (“[W]e have stressed the need to identify a case where an officer acting 20 under similar circumstances . . . was held to have violated the Fourth Amendment.”) (cleaned up); Perez v. City of Fresno, 98 F.4th 919, 928 (9th Cir. 2024) (holding that Supreme Court 21 precedent “does not establish that any violation of police policy or guidance is, in and of itself, sufficient to deny qualified immunity”). 22 71 ECF No. 87 at 3. 23 72 ECF No. 151-2 at 14. 73 Officer Lorson’s bodycam footage, T02:36:51Z–T02:36:07Z. 1 around the right side of Berhanemeskel’s neck to roll him onto his left side. The officer then 2 wraps his arms around Berhanemeskel’s right arm and pulls him back toward center. During 3 these movements, Berhanemeskel keeps talking to Officer Kade about how he got into the 4 apartment. 5 I cannot determine from the video alone how much force was applied during these
6 movements. So I accept Berhanemeskel’s account that that the maneuver caused him shoulder 7 pain and that he later received Motrin and lidocaine prescriptions for it.74 But Berhanemeskel 8 doesn’t adequately dispute the officers’ argument that this maneuver was not clearly established 9 as unlawful. Beyond asserting that he was compliant, Berhanemeskel offers no argument or case 10 law establishing that a reasonable officer would have understood that repositioning a handcuffed 11 detainee on the ground during a search after officers had been told that he had a knife was 12 unlawful. And I could not find any case law that would have put an officer on notice that this 13 conduct was unlawful. So the officers are entitled to qualified immunity on this theory, too. 14 2. Berhanemeskel has not shown that the officers violated a Fourteenth 15 Amendment right.
16 Berhanemeskel’s Fourteenth Amendment claim focuses on what happened after he was 17 handcuffed. He alleges that he experienced difficulty breathing and that the officers were 18 deliberately indifferent to that medical need in two ways: (1) they refused to summon medical 19 care at all despite his requests,75 and (2) even once fire and medical personnel were on scene, the 20 officers resisted or delayed hospital transport.76 21 22 74 ECF No. 166 at 70 (UMC’s rapid medical assessment). 23 75 ECF No. 70 at 7. 76 Id. at 7; ECF No. 87 at 4. 1 A pretrial detainee’s right to adequate medical care is protected by the Fourteenth 2 Amendment.77 Officers violate that right when they are deliberately indifferent to a detainee’s 3 medical needs.78 To establish deliberate indifference, a pretrial detainee must show that “(1) the 4 defendant made an intentional decision with respect to the conditions under which the plaintiff 5 was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious harm;
6 (3) the defendant did not take reasonable available measures to abate that risk, even though a 7 reasonable official in the circumstances would have appreciated the high degree of risk 8 involved—making the consequences of the defendant’s conduct obvious; and (4) by not taking 9 such measures, the defendant caused the plaintiff’s injuries.”79 10 The officers contend that Berhanemeskel cannot show a genuine issue of material fact on 11 this deliberate-indifference claim because the body-worn-camera footage and medical records 12 undermine his assertion that they refused him medical care.80 They acknowledge that he 13 reported chest pain and breathing difficulty, but they argue that the record does not support his 14 assertion that they refused medical care or impeded hospital transport.81 In their view, the
15 bodycam footage shows that Officer Rundus asked whether Berhanemeskel needed medical 16 attention, Berhanemeskel declined, and Rundus nevertheless summoned medical responders.82 17 While they acknowledge a 45-second exchange before transport during which Officer Lopez 18 19
20 77 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018). 21 78 Id. 79 Id. at 1125. 22 80 ECF No. 151 at 9. 23 81 Id. 82 Id. at 10. Because this footage is muted, I cannot confirm this. 1 paused medical providers, they contend that it does not amount to deliberate indifference because 2 he was ultimately transported to the hospital.83 3 Berhanemeskel’s argument is essentially that any delay in treatment is a constitutional 4 violation. He contends that he repeatedly requested hospital transport, that the officers delayed 5 or interfered with it and that transport occurred only after firefighters and medical intervened.84
6 He adds that the officers acted with deliberate indifference by allowing transport only after 7 firefighters intervened, ending a “two-to-three-minute” standoff.85 Berhanemeskel attaches a 8 paramedic document to support his theory.86 It reflects that, while he was being moved to the 9 ambulance, an officer paused the transport, asked why he wanted to go to the hospital, and 10 advised him that he would still be taken to jail after medical clearance.87 It further recounts that 11 firefighters advised the officers that “they could not delay transport with those kinds of questions 12 and[,] given the patient’s complaint[,] he needed to go to the hospital without delay.”88 The 13 transport then proceeded. The bodycam footage fixes the duration of that interruption at less 14 than a minute.89
15 But that doesn’t fill all of the gaps in this deliberate-indifference claim that the 16 defendants pointed out in their motion for summary judgment. Berhanemeskel offers no proof 17
18 83 ECF No. 173 at 6. 84 ECF No. 166 at 13. Berhanemeskel also disputes the officers’ version of the exchange with 19 Officer Rundus, insisting that it’s false that he declined medical attention. 20 85 ECF No. 166 at 13. 86 Id. at 77. 21 87 Id. 22 88 Id. 89 Officer Rundus’s bodycam footage, T02:54:43Z. Bernhanemeskel was strapped to a stretcher 23 by T02:58:56Z. At T03:01:45Z, an officer briefly stops the transport, and the interaction ends by T03:02:25Z. 1 that this sub-minute pause placed him at a substantial risk of serious harm—indeed, responders 2 were actively transporting Berhanemeskel when this pause occurred. The interruption happened 3 in the middle of that process, with medical personnel present and communicating. And there is 4 no evidence that Berhanemeskel’s condition deteriorated during that brief interval or that urgent 5 treatment was withheld. Nothing in this record suggests that the brief pause placed
6 Berhanemeskel at an obvious, substantial risk of serious harm. 7 And Berhanemeskel does not argue or support with evidence that the interruption caused 8 him additional harm—as needed to satisfy the fourth element. The paramedic report reflects that 9 before transport, responders assessed Berhanemeskel’s breath sounds and found them “present, 10 clear[,] and equal” with “[n]o obvious abnormalities.”90 After he was moved into the ambulance, 11 they reassessed him for any change and documented none.91 Berhanemeskel submits other 12 medical records, but he does not identify any notation tying his symptoms, diagnosis, or 13 treatment to the short pause in transport. He does not claim that his condition worsened during 14 the interruption or that any delay aggravated his breathing complaint. The only “harm” he
15 identifies is that he experienced symptoms and later received medical treatment for the injuries 16 he sustained during the arrest. 17 Berhanemeskel’s alternative narrative that the officers refused to summon medical care 18 until firefighters arrived fails for a similar reason. His own exhibit reflects that Medic 141 was 19 dispatched along with Clark County Fire Department “for a breathing problem.”92 That record is 20 inconsistent with the notion that medical attention occurred only after firefighters forced the 21 22 90 ECF No. 166 at 77. 23 91 Id. 92 Id. 1 officers’ hands; it reflects that the fire department and medical responders were dispatched 2 together for the breathing complaint in the first instance, which was called in by the officers. 3 Because Berhanemeskel has not raised a genuine issue that the officers’ conduct exposed him to 4 an obvious, substantial risk of serious harm or caused him injury, he cannot establish a 5 Fourteenth Amendment violation. The officers are therefore entitled to qualified immunity from
6 his deliberate-indifference claim. 7 3. Berhanemeskel has not shown that the officers violated his First Amendment 8 right.
9 Berhanemeskel’s First Amendment retaliation claim is intertwined with his Fourteenth 10 Amendment medical-care theory. He claims that the denial of care was retaliatory, triggered by 11 his statement that he was going to sue the officers for his injuries, and motivated by a desire to 12 avoid a lawsuit and conceal misconduct.93 The Ninth Circuit has made clear that retaliatory 13 punishment is prohibited under the First Amendment, and that this prohibition is clearly 14 established law for purposes of qualified immunity.94 To prevail on a First Amendment 15 retaliation claim, the plaintiff must show that (1) the state actor took an adverse action, 16 (2) because of (3) the plaintiff’s protected conduct, (4) the action chilled the plaintiff’s exercise 17 of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 18 penological purpose.95 19 The officers argue that Berhanemeskel cannot create a genuine dispute on the first two 20 retaliation elements—an adverse action taken because of protected conduct.96 Berhanemeskel 21 93 ECF No. 70 at 8; ECF No. 87 at 5. 22 94 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). 23 95 Id. 96 ECF No. 87 at 5. 1 alleges in his amended complaint that, after he said he would sue, the officers denied him 2 medical care in order to retaliate “to mask or hide their misgivings.”97 But the officers contend 3 that the record forecloses that premise because medical was summoned, responders evaluated 4 Berhanemeskel, and he was transported to the hospital for further evaluation.98 If the challenged 5 adverse action never occurred, there is no genuine dispute of material fact, and they are entitled
6 to summary judgment on the claim. 7 Even assuming Berhanemeskel made a statement about suing for his excessive-force 8 injuries, he does not support that any adverse action occurred. The record reflects that medical 9 was summoned within 20 minutes after he was handcuffed,99 responders arrived and evaluated 10 him, and he was transported to the hospital for further evaluation. Berhanemeskel offers no 11 evidence contradicting that sequence or that the timeline reflects retaliatory conduct rather than 12 ordinary logistics. Because Berhanemeskel has not shown any evidence that the officers took an 13 adverse action because of his protected conduct, the officers are entitled to summary judgment 14 on his retaliation claim.
15 Conclusion 16 IT IS THEREFORE ORDERED that the defendants’ motion for summary judgment 17 [ECF No. 151] is GRANTED based on qualified immunity. IT IS FURTHER ORDERED that 18 Berhanemeskel’s motion for summary judgment [ECF No. 70] is DENIED. Berhanemeskel’s 19 20
21 97 He claims that body-camera footage from the officers and “Bravo Pablin De Jesus” supports his account. ECF No. 166 at 15. But De Jesus is not otherwise identified in any motion papers, 22 and Bernhanemeskel did not attach the footage, explaining that the flash drives containing it are with the law library. Id. at 146. 23 98 ECF No. 151 at 11–12. 99 Officer Rundus’s bodycam footage, T02:54:44Z. 1} motions for status checks [ECF Nos. 179, 180, 181] are DENIED as moot. The Clerk of 2|| Court is directed to ENTER JUDGMENT for the defendants and close this case. 3
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