(PC) Muhammad v. Ross

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIFA MUHAMMAD, No. 2:21-CV-00776-CKD P 12 Plaintiff, 13 v. ORDER AND 14 SEAN ROSS, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on a Fourth Amendment 19 excessive force claim against defendant Ross that occurred on September 20, 2019 in the course 20 of plaintiff’s arrest.1 See ECF No. 12 (screening order). Currently pending before the court is 21 defendant’s motion for summary judgment. ECF No. 34. The motion has been fully briefed by 22 the parties. ECF Nos. 38-40.2 For the reasons explained below, the undersigned recommends 23 1 To the extent that defendant’s summary judgment motion also references a Monell claim against 24 the City of Stockton and a state tort of assault and battery, these claims were screened out and plaintiff elected not to amend his complaint. See ECF No. 12 at 7-9. Therefore, the analysis of 25 the pending summary judgment motion is limited to the sole Fourth Amendment claim pending before the court. 26 2 Plaintiff’s sur-reply was not considered by the court as it is an unauthorized filing. Local Rule 27 230 provides for the filing of a motion, an opposition to the motion, and a reply by the moving party. There is no provision in the Federal Rules of Civil Procedure or the Local Rules 28 authorizing a plaintiff to file a second opposition or response to a reply. 1 granting defendant’s motion and entering judgment in favor of defendant Ross. 2 I. Allegations in the Complaint 3 Plaintiff acknowledges that he was involved in a high speed chase with police on 4 September 20, 2019 which ended when plaintiff wrecked his car in a ditch. ECF No. 1 at 9. 5 Defendant Ross, along with other unidentified officers, approached plaintiff in the wrecked car. 6 ECF No. 1 at 9-10. Defendant used his rapid containment baton (“RCB”) to break out the 7 driver’s side window of plaintiff’s car. Id. at 10. This caused glass to get embedded in plaintiff’s 8 face and eye. Id. “As that was taking place Ross was also hitting plaintiff in the face with the 9 RCB in his left eye leaving him with an orbit[al] fracture.” Id. Defendant also used his RCB to 10 break plaintiff’s foot and ankle. Id. According to plaintiff, “[t]he blow to the head and foot… 11 was so forceful that it scattered [sic] his right ankle into pieces and gave plaintiff head trauma.” 12 Id. Plaintiff was taken to San Joaquin General Hospital for treatment for his injuries. Id. at 11. 13 II. Defendant’s Motion for Summary Judgment 14 Defendant Ross seeks summary judgment on the bases that plaintiff’s claim is Heck 15 barred because he plead no contest to evading a police officer; there is no genuine issue of 16 material dispute regarding the excessive force claim on the merits; the level of force was justified 17 by the need for force; and, because defendant is entitled to qualified immunity. ECF No. 34. 18 Defendant contends that the undisputed material facts, including evidence from multiple officers’ 19 body worn cameras, demonstrate that plaintiff sustained his injuries from the crash resulting from 20 his high speed chase from the police rather than from any use of excessive force. Specifically, 21 defendant indicates that “[t]he body worn cameras show Plaintiff sustained injuries prior to any 22 officer utilizing any efforts to get Plaintiff out of the vehicle caused by the deployment of 23 vehicle’s air bag.” ECF No. 34-1 at 9. Defendant submits that pointing a gun at plaintiff, using 24 his baton to break the car window, and grabbing plaintiff’s wrist to pull him out of the car was not 25 excessive or unreasonable force based on a totality of the circumstances. ECF No. 34-1 at 11-14. 26 Moreover, defendant is entitled to qualified immunity because “there is no clearly established law 27 preventing an officer from arresting a suspect who has committed a felony in his presence, 28 California Vehicle Code § 2800.2, evading an officer with wanton disregard.” ECF No. 34-1 at 1 15-16. In support of the motion, defendant also lodged a DVD containing the body worn camera 2 footage from defendant Ross, Officer Underwood, and Officer Delk.3 See ECF No. 34-7. 3 In his opposition, plaintiff submits that there is a genuine issue of material fact in dispute 4 because the declarations of plaintiff and defendant “are squarely contradictory as to what force 5 was used, when it was used and why it was used.” ECF No. 38 at 2. Plaintiff submitted two 6 declarations signed under penalty of perjury which reiterate the allegations in his complaint. ECF 7 No. 38 at 5-7; 10-11. The only additional detail included in the declarations is plaintiff’s 8 averment that he did not resist or threaten the officers in any fashion. ECF No. 38 at 6. Also 9 attached to the opposition are select portions of plaintiff’s medical records from 2020 and 2021 in 10 which he was treated for a right heel fracture.4 ECF No. 38 at 12-20. 11 By way of reply, defendant asserts that “there has been no evidence presented by Plaintiff 12 so as to create genuine issues of material fact” that would preclude summary judgment. ECF No. 13 39 at 1. In this case, plaintiff’s version of events is blatantly contradicted by the body worn 14 camera footage that would lead a reasonable jury not to believe it. ECF No. 39 at 2 (citing Scott 15 v. Harris, 550 U.S. 372, 380 (2007)). Moreover, the medical evidence presented by plaintiff does 16 not establish that glass from the broken window went into his eye. Id. Thus, summary judgment 17 in favor of defendant is warranted. Id. 18 III. Legal Standards 19 A. Summary Judgment Standards 20 Summary judgment is appropriate when it is demonstrated that there “is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 23 “citing to particular parts of materials in the record, including depositions, documents, 24 electronically stored information, affidavits or declarations, stipulations (including those made for 25

3 These videos are authenticated by a declaration submitted by Victoria Tracy, an Evidence 26 Technician for the Stockton Police Department. See ECF No. 34-4. 27 4 Interestingly, the Progress Notes from December 16, 2021 indicate that plaintiff informed the doctor that he had a motor vehicle accident on September 20, 2019 in which he sustained a 28 fracture of his right heel. ECF No. 38 at 18. 1 purposes of the motion only), admissions, interrogatory answers, or other materials….” Fed. R. 2 Civ. P. 56(c)(1)(A). 3 Summary judgment should be entered, after adequate time for discovery and upon motion, 4 against a party who fails to make a showing sufficient to establish the existence of an element 5 essential to that party's case, and on which that party will bear the burden of proof at trial. See 6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 7 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” 8 Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party 9 to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 10 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 11 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 12 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 13 and/or admissible discovery material, in support of its contention that the dispute exists or show 14 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 15 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 16 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 17 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 18 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 19 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 20 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the 21 endeavor to establish the existence of a factual dispute, the opposing party need not establish a 22 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 23 shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” 24 T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the 25 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 26 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 27 amendments). 28 In resolving the summary judgment motion, the evidence of the opposing party is to be 1 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 2 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 3 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's 4 obligation to produce a factual predicate from which the inference may be drawn. See Richards 5 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 6 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 7 simply show that there is some metaphysical doubt as to the material facts.... Where the record 8 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 9 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 10 B. Fourth Amendment Excessive Force 11 An excessive force claim in the course of an arrest is analyzed under the Fourth 12 Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 13 (1989). Objective reasonableness is determined based on the facts and circumstances at the 14 moment of arrest without reference to the underlying intent or motivation of the officer. Id. at 15 397. Most importantly, the reasonableness of any particular use of force “must be judged from 16 the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 17 hindsight.” Id. at 396. 18 The reasonableness of an officer's use of force is determined by balancing the “nature and 19 quality of the intrusion on the individual's Fourth Amendment interests against the importance of 20 the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 21 703 (1983). In determining whether the force utilized is objectively reasonable, courts consider: 22 “(1) ‘the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the 23 type and amount of force inflicted,’ (2) ‘the government's interest in the use of force,’ and (3) the 24 balance between ‘the gravity of the intrusion on the individual’ and ‘the government's need for 25 that intrusion.’” Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc) 26 (quoting Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011)). The government's 27 interest in the force used is determined by assessing (1) the severity of the crime at issue, (2) 28 whether the suspect posed an immediate threat to the safety of the officers or others, and (3) 1 whether the suspect actively resisted arrest or attempted to escape. Glenn, 673 F.3d at 871 (citing 2 Graham, 490 U.S. at 396). Moreover, “[t]he calculus of reasonableness must embody allowance 3 for the fact that police officers are often forced to make split-second judgments—in 4 circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is 5 necessary in a particular situation.” Graham, 490 U.S. at 396–97. 6 IV. Undisputed Material Facts5 7 On September 20, 2019, defendant Ross was on duty as a police officer for the Stockton 8 Police Department. Defendant’s Statement of Undisputed Material Facts (“DSUF”) at No. 1. He 9 responded to an area located near Pisa Circle in Stockton, California to check for a suspect 10 involved in a domestic violence incident in Hayward, California. DSUF at No. 1. This individual 11 was later identified as plaintiff. Id. Based on information defendant Ross received from his CHP 12 scanner, he turned onto Vercelli Street and blocked plaintiff’s ability to enter the victim’s house. 13 CSUF at No. 2. Defendant approached plaintiff’s vehicle and as he opened the driver’s door, 14 plaintiff put the car in reverse and began backing out of the driveway. DSUF at No. 3. 15 Defendant ordered plaintiff to stop, but he didn’t. DSUF at No. 3. Defendant returned to his 16 patrol vehicle and activated his lights. DSUF at No. 4. Plaintiff still did not stop his vehicle. 17 DSUF at No. 4. Defendant Ross observed plaintiff run the stop sign at William Moss Boulevard. 18 DSUF at No. 4. In response, defendant activated his siren and advised dispatch that plaintiff was 19 fleeing. Id. During the pursuit, plaintiff reached a speed of 80 miles per hour in a 30 mile per 20 hour zone, passed an elementary school while children were present, and ran a red light. DSUF at 21 No. 5. Defendant observed plaintiff veer to the north and continue through the intersection of 22 EWS Woods and over a ditch. DSUF at No. 5. 23 Once plaintiff’s vehicle came to a stop and the dust settled around it, defendant observed 24 major front end damage to the vehicle. ECF No. 34-5 at 9 (Stockton Police Department Incident 25

5 The court deems defendant’s facts undisputed if plaintiff did not submit any evidence in 26 opposition thereto. It is the opposing party’s obligation to produce a factual predicate that 27 supports a reasonable inference that can be drawn from the facts before the court on summary judgment. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), 28 aff’d 810 F.2d 898, 902 (9th Cir. 1987). 1 Report). Defendant could not see inside the car and did not receive any response when he called 2 out to the driver to show his hands. DSUF at No. 6. While waiting for backup officers to arrive, 3 defendant ran the plates on the vehicle and received information from the DOJ that plaintiff was 4 on parole for kidnapping and was possibly armed. DSUF at No. 7. Defendant Ross did not 5 approach plaintiff’s vehicle until backup officers arrived. DSUF at No. 6. Once they approached, 6 defendant Ross could faintly see a person inside the car. DSUF at No. 8. The driver’s side door 7 was locked and when defendant Ross ordered plaintiff to open it, he did not get any response. 8 DSUF at No. 8. So defendant used his Rapid Containment Baton (“RCB”) to break out the 9 driver’s side front window. DSUF at No. 9. Once it was opened, defendant reached inside the 10 vehicle and unlocked the door. DSUF at No. 9. Defendant then secured his baton and opened the 11 driver’s side door. DSUF at No. 9-10. 12 According to defendant Ross, plaintiff was conscious, but he did not fully cooperate with 13 the orders he was given. ECF No. 34-5 at 3 (Declaration of Sean Ross). Because there was the 14 possibility that plaintiff was armed, defendant told him that they needed to get him out of the 15 vehicle. DSUF at No. 10. Defendant acknowledges grabbing plaintiff’s left wrist while he was 16 still in the car. ECF No. 34-5 at 3. Plaintiff was given several orders to put his right hand on top 17 of his head. DSUF at No. 10. According to the defendant, plaintiff reached back behind him as 18 defendant began to assist plaintiff out of the vehicle. ECF No. 34-5 at 3. As defendant did not 19 want plaintiff to be able to grab a potential concealed weapon, he pulled plaintiff out of the 20 vehicle and onto the ground. DSUF at No. 11. Defendant Ross held plaintiff’s hands until other 21 officers were able to pat him down. DSUF at No. 11. Ultimately, defendant handcuffed plaintiff 22 at the scene of the car crash. Id. Plaintiff was arrested and issued a citation for the traffic 23 charges violated during the high-speed pursuit. DSUF at No. 16. Plaintiff received medical 24 treatment at the scene and was transported to San Joaquin County Hospital. ECF No. 34-5 at 3. 25 There is no forensic evidence that defendant Ross struck plaintiff in his left eye with his 26 baton without warning, as documented by the body camera footage from the officers at the scene 27 28 1 of the car crash.6 DSUF at No. 13. Additionally, there is no forensic evidence that defendant 2 used his baton to break plaintiff’s foot and ankle or strike him on the head, as the events were 3 documented by the body camera footage from the officers on scene. DSUF at Nos. 14-15. 4 V. Analysis 5 The undersigned finds that defendant has met his initial burden of informing the court of 6 the basis for his motion, and identifying those portions of the record which he believes 7 demonstrate the absence of a genuine issue of material fact. The burden therefore shifts to 8 plaintiff to establish the existence of a genuine issue of material fact. See Matsushita Elec. 9 Indus., 475 U.S. at 586 (1986). The court concludes that plaintiff has not submitted sufficient 10 evidence at the summary judgment stage to create a genuine issue of material fact with respect to 11 his claim that the defendant violated his rights under the Fourth Amendment. 12 The court recommends granting defendant’s motion for summary judgment based on the 13 body worn camera evidence which demonstrates that defendant Ross did not use his baton to 14 strike plaintiff in the head or legs. See Scott v. Harris, 550 U.S. 372, 378-79 (2007) (finding that 15 at the summary judgment stage, a court should view the facts in the light depicted by undisputed 16 video evidence because the facts must be viewed in the light most favorable to the nonmoving 17 party only if there is a “genuine” dispute as to those facts.). Plaintiff’s allegation that defendant 18 Ross struck him directly in the face, eye, and ankle with his baton, is not capable of being 19 believed by a reasonable jury in light of the body worn camera evidence from the incident. See 20 Scott, 550 U.S. at 380 (emphasizing that “[w]hen opposing parties tell two different stories, one 21 of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a 22 court should not adopt that version of the facts for purposes of ruling on a motion for summary 23 judgment.”); see also Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (applying Scott where “the 24 record contains an unchallenged videotape capturing the events in question”). Plaintiff’s 25 allegation that glass hit his eye from defendant’s use of the baton to break the driver’s side car 26 window is also contradicted by the record evidence. Most notably, plaintiff did not complain 27

28 6 Although plaintiff argues otherwise, the body camera footage speaks for itself. 1 about any glass in his eye on the body worn camera video, and the medical records he submitted 2 do not demonstrate that he sustained an eye injury or received any treatment for such an injury. 3 In this case, the body worn camera footage demonstrates that defendant Ross did not use his 4 baton to strike plaintiff in the head, eye, foot, or ankle as alleged in the complaint. Therefore, 5 there is no genuine issue of material dispute upon which a reasonable jury could find for plaintiff. 6 For all these reasons, the undersigned recommends granting defendant’s motion for summary 7 judgment.7 8 VI. Plain Language Summary for Pro Se Party 9 The following information is meant to explain this order in plain English and is not 10 intended as legal advice. 11 The court has reviewed the pending motion for summary judgment, as well as the 12 evidence submitted by the parties, and has concluded that the facts of your case are not 13 sufficiently in dispute to warrant a trial on the Fourth Amendment excessive force claim. This 14 means that your case will end without the need for a trial. 15 You have fourteen days to explain to the court why this is not the correct outcome in your 16 case. If you choose to do this you should label your explanation as “Objections to Magistrate 17 Judge’s Findings and Recommendations.” The district court judge assigned to your case will 18 review any objections that are filed and will make a final decision on the motion for summary 19 judgment. 20 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of Court 21 randomly assign this matter to a district court judge. 22 IT IS FURTHER RECOMMENDED that: 23 1. Defendant’s motion for summary judgment (ECF No. 34) be granted. 24 2. The Clerk of Court be directed to enter judgment for defendant and close this case. 25 These findings and recommendations are submitted to the United States District Judge 26

27 7 Based on this recommendation and in the interests of judicial economy, the court finds it unnecessary to address defendant’s remaining arguments presented in the motion for summary 28 judgment. 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 2 || after being served with these findings and recommendations, any party may file written 3 || objections with the court and serve a copy on all parties. Such a document should be captioned 4 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 5 || objections shall be served and filed within fourteen days after service of the objections. The 6 || parties are advised that failure to file objections within the specified time may waive the right to 7 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 8 | Dated: July 27, 2023 / hice ANKE) flo ° CAROLYN K DELANEY? 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 12/muha0776.msj.CJRA 17 18 19 20 21 22 23 24 25 26 27 28 10