1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, No. 2:17-cv-0723 MCE CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 LARRY LORMAN, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 18 rights under 42 U.S.C. §1983. This action is proceeding on a claim for damages based upon 19 excessive force. The claim arises under the Fourth Amendment and is against Larry Lorman, a 20 Colusa police officer. ECF Nos. 25, 27 & 35. Defendant Lorman’s motion for summary 21 judgment is before the court. 22 I. Summary Judgment Standard 23 Summary judgment is appropriate when it is demonstrated that there “is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 26 “citing to particular parts of materials in the record, including depositions, documents, 27 electronically stored information, affidavits or declarations, stipulations (including those made for 28 ///// 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. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 11 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 12 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 13 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 14 and/or admissible discovery material, in support of its contention that the dispute exists or show 15 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 16 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 17 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 18 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 19 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 20 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 21 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 22 In the endeavor to establish the existence of a factual dispute, the opposing party need not 23 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 24 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 25 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 26 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 27 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 28 amendments). 1 In resolving the summary judgment motion, the evidence of the opposing party is to be 2 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 3 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 4 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 5 obligation to produce a factual predicate from which the inference may be drawn. See Richards 6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 7 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 8 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 9 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 10 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 11 II. Plaintiff’s Allegations 12 In her March 2, 2018 amended complaint, plaintiff alleges as follows under the penalty of 13 perjury: 14 On February 2, 2016, I was being arrested at my motel room by Officer Lorman. During his “search” he grabbed my buttocks in an 15 aggressive manner while I was screaming at him to stop. He choked me on the way to the car. He left fingerprint bruises on my buttocks. 16 . . 17 Plaintiff also alleges that during the arrest she suffered from bruises as a result of 18 handcuffs which were too tight and scars on her ankles from being “hog tied.” The court notes 19 that plaintiff does not challenge the fact that she was arrested or the initial application of 20 handcuffs. 21 III. Applicable Fourth Amendment Standards 22 Claims of excessive force during an arrest are evaluated under the Fourth Amendment. 23 Graham v. Connor, 490 U.S. 386, 395 (1989). “The Fourth Amendment requires police officers 24 making an arrest to use only an amount of force that is objectively reasonable in light of the 25 circumstances facing them.” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007). 26 In determining the reasonableness of force used, courts consider, among other things, the severity 27 of the crime at issue, whether the suspect posed an immediate threat of harm, whether the suspect 28 was actively resisting arrest or attempting to evade arrest by flight, the availability of alternative 1 methods of detention and the plaintiff’s mental and emotional state. Brooks v. Clark County, 2 828 F.3d 910, 920 (9th Cir. 2016). 3 IV. Defendant’s Arguments and Analysis 4 A. Force Used Was Reasonable 5 Defendant Lorman asserts there is no genuine issue of material fact as to whether 6 excessive force was used against plaintiff in violation of the Fourth Amendment when defendant 7 arrested plaintiff on February 2, 2016. Defendant provides an affidavit with his motion. Most 8 notably, defendant asserts: 9 1. As plaintiff was put in handcuffs, defendant removed a fanny pack, belt and “sheath” 10 for a knife from the back of plaintiff’s waistline. As this occurred, plaintiff yelled a number of 11 times “don’t touch my ass!” Defendant does not deny he touched plaintiff’s buttocks, but asserts 12 that the touching was not sexual in nature. After the defendant applied the handcuffs plaintiff 13 repeatedly accused defendant of having touched her buttocks. 14 2.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, No. 2:17-cv-0723 MCE CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 LARRY LORMAN, et al., 15 Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 18 rights under 42 U.S.C. §1983. This action is proceeding on a claim for damages based upon 19 excessive force. The claim arises under the Fourth Amendment and is against Larry Lorman, a 20 Colusa police officer. ECF Nos. 25, 27 & 35. Defendant Lorman’s motion for summary 21 judgment is before the court. 22 I. Summary Judgment Standard 23 Summary judgment is appropriate when it is demonstrated that there “is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 26 “citing to particular parts of materials in the record, including depositions, documents, 27 electronically stored information, affidavits or declarations, stipulations (including those made for 28 ///// 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. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 11 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 12 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 13 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 14 and/or admissible discovery material, in support of its contention that the dispute exists or show 15 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 16 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 17 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 18 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 19 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 20 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 21 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 22 In the endeavor to establish the existence of a factual dispute, the opposing party need not 23 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 24 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 25 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 26 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 27 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 28 amendments). 1 In resolving the summary judgment motion, the evidence of the opposing party is to be 2 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 3 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 4 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 5 obligation to produce a factual predicate from which the inference may be drawn. See Richards 6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 7 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 8 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 9 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 10 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 11 II. Plaintiff’s Allegations 12 In her March 2, 2018 amended complaint, plaintiff alleges as follows under the penalty of 13 perjury: 14 On February 2, 2016, I was being arrested at my motel room by Officer Lorman. During his “search” he grabbed my buttocks in an 15 aggressive manner while I was screaming at him to stop. He choked me on the way to the car. He left fingerprint bruises on my buttocks. 16 . . 17 Plaintiff also alleges that during the arrest she suffered from bruises as a result of 18 handcuffs which were too tight and scars on her ankles from being “hog tied.” The court notes 19 that plaintiff does not challenge the fact that she was arrested or the initial application of 20 handcuffs. 21 III. Applicable Fourth Amendment Standards 22 Claims of excessive force during an arrest are evaluated under the Fourth Amendment. 23 Graham v. Connor, 490 U.S. 386, 395 (1989). “The Fourth Amendment requires police officers 24 making an arrest to use only an amount of force that is objectively reasonable in light of the 25 circumstances facing them.” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007). 26 In determining the reasonableness of force used, courts consider, among other things, the severity 27 of the crime at issue, whether the suspect posed an immediate threat of harm, whether the suspect 28 was actively resisting arrest or attempting to evade arrest by flight, the availability of alternative 1 methods of detention and the plaintiff’s mental and emotional state. Brooks v. Clark County, 2 828 F.3d 910, 920 (9th Cir. 2016). 3 IV. Defendant’s Arguments and Analysis 4 A. Force Used Was Reasonable 5 Defendant Lorman asserts there is no genuine issue of material fact as to whether 6 excessive force was used against plaintiff in violation of the Fourth Amendment when defendant 7 arrested plaintiff on February 2, 2016. Defendant provides an affidavit with his motion. Most 8 notably, defendant asserts: 9 1. As plaintiff was put in handcuffs, defendant removed a fanny pack, belt and “sheath” 10 for a knife from the back of plaintiff’s waistline. As this occurred, plaintiff yelled a number of 11 times “don’t touch my ass!” Defendant does not deny he touched plaintiff’s buttocks, but asserts 12 that the touching was not sexual in nature. After the defendant applied the handcuffs plaintiff 13 repeatedly accused defendant of having touched her buttocks. 14 2. While he was placing plaintiff in the back of his patrol car, plaintiff began to yell at 15 defendant not to touch her neck. Defendant does not recall touching her neck. Regardless, he did 16 not choke plaintiff. 17 Defendant Lorman provides a video of his interactions with plaintiff and her arrest taken 18 from defendant’s body-cam. Unfortunately, the video is of minimal assistance in resolving 19 whether defendant grabbed plaintiff’s buttocks and causing plaintiff injury as plaintiff alleges. 20 While the video does not contradict any of defendant’s assertions as to his removal of plaintiff’s 21 fanny pack, the video is not conclusive as to whether excessive force was used due to poor 22 camera angle and lack of light. ECF No. 54, file 01801916 at 20:00-20:30. Construing all of the 23 evidence before the court in favor of plaintiff as the court must, including plaintiff’s allegations 24 that she suffered from bruises as a result of defendant grabbing her buttocks, there is at least a 25 genuine issue of material fact as to whether excessive force was used. 26 As for plaintiff’s allegations concerning choking, it does appear from the video that 27 defendant at least briefly placed his hands on plaintiff’s neck as part of an attempt to put plaintiff 28 into his police car as plaintiff resisted, threatened, and berated defendant. ECF No. 54, file 1 01801924 at 0:00-1:10. But, considering plaintiff’s clear and constant screaming “don’t put your 2 hands on my neck” the court concludes that it is impossible that she was being choked to a degree 3 which would amount to excessive force under the Fourth Amendment. Further, as reflected in the 4 video, plaintiff never complains about being choked; rather she takes issue with the defendant 5 placing his hands on her neck. 6 Defendant does not address any claim by plaintiff concerning the use of handcuffs 7 independent of a “hobble” device, which binds handcuffs to feet raising legs from the ground 8 while the person restrained lies on her stomach, and plaintiff does not argue that such a claim 9 should survive defendant’s motion for summary judgment. Again, the only allegation by plaintiff 10 in her complaint is that she suffered bruises as a result of the use of handcuffs. In the video 11 plaintiff did not complain about the handcuffs being too tight when they were applied or at any 12 time prior to the “hobble” device being attached to the handcuffs which occurred about 30 13 minutes later. Her lack of complaint on this point is particularly telling in that she repeatedly 14 threatened and berated defendant, and continually complained about the touching of her buttocks 15 and neck, a flashlight being shined in her face, and that she was cold. Thus, the court concludes 16 that any claim plaintiff might have regarding the tightness of handcuffs independent of the use of 17 the “hobble” device lacks sufficient factual support entitling defendant to summary judgment. 18 As for the initial application of the “hobble” device, the video establishes that this was 19 reasonable under the circumstances. Plaintiff repeatedly attempted to cause damage by kicking 20 one of the back doors of defendant’s police car while she was in the back seat and handcuffed and 21 would not stop despite defendant’s orders. ECF No. 54, file 01801924 at 8:00-19:30, 22:30-end; 22 01801932x9DF46 at 0:00-2:25. Further, at the time she was “hobbled” plaintiff did not voice any 23 complaint regarding the binding being too tight and instead mostly continued her barrage of 24 threats and name calling directed at defendant and the officers assisting. 25 Nevertheless, plaintiff alleges she suffered injuries as a result of the “hobble” and 26 defendant does not point to evidence indicating this was not due to prolonged use of the “hobble.” 27 The video provided by defendant only depicts application of the “hobble,” not the duration of 28 time plaintiff was restrained. Again, as the court understands, the “hobble” caused plaintiff’s 1 hands to be connected to her feet while her feet were pointing upward. Forcing plaintiff to 2 remain in this position for a prolonged period of time and at a time when use of the “hobble” was 3 no longer reasonable, could produce injury even if the handcuffs and loop around plaintiff’s feet 4 were not tied too tight. Accordingly, while the initial application of the “hobble” was reasonable, 5 the length of time it was used may not have been. 6 B. Qualified Immunity 7 Defendant also asserts he is entitled to summary judgment under the “qualified immunity” 8 doctrine. “Government officials enjoy qualified immunity from civil damages unless their 9 conduct violates ‘clearly established statutory or constitutional rights of which a reasonable 10 person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting 11 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In analyzing a qualified immunity defense, the 12 court must consider the following: (1) whether the alleged facts, taken in the light most favorable 13 to the plaintiff, demonstrate that defendant's conduct violated a statutory or constitutional right; 14 and (2) whether the right at issue was clearly established at the time of the incident. Saucier v. 15 Katz, 533 U.S. 194, 201 (2001). 16 The court addressed whether plaintiff’s claims survive the first part of the qualified 17 immunity analysis above. Plaintiff’s claim concerning injuries to her buttocks is supported by 18 sufficient evidence to survive defendant’s motion for summary judgment and defendant has not 19 met his burden to show there is no genuine issue of material fact as to whether the duration of 20 time plaintiff was forced to lay on her stomach with her feet and hands tied together was 21 reasonable. As to those claims, plaintiff’s right to not be subjected to excessive force under the 22 Fourth Amendment was clearly established at the time she was arrested by defendant and the 23 facts alleged by plaintiff are not so unique that defendant was not on notice of violations of the 24 Fourth Amendment if defendant acted as plaintiff alleges he did. 25 In accordance with the above, IT IS HEREBY RECOMMENDED that: 26 1. Defendant’s motion for summary judgment (ECF No. 53) be denied as to plaintiff’s 27 Fourth Amendment excessive force claims concerning her allegation that defendant grabbed her 28 ///// 1 | buttocks causing bruises and the duration of time plaintiff was forced to lie on her stomach with 2 | her feet and hands tied together; and 3 2. Defendant’s motion for summary judgment be granted in all other respects. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 | objections shall be served and filed within fourteen days after service of the objections. The 10 | parties are advised that failure to file objections within the specified time may waive the right to 11 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: February 10, 2020 rd f | Gx 13 CAROLYN K DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 | 1 18 bely0723.msj 19 20 21 22 23 24 25 26 27 28