Predybaylo v. Sacramento County, California

• Court: District Court, E.D. California
• Decided: June 17, 2022
• Docket: 2:19-cv-01243
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEXSEY PREDYBAYLO, an No. 2:19-cv-01243-MCE-CKD individual, 12 Plaintiff, 13 MEMORANDUM AND ORDER v. 14 SACRAMENTO COUNTY, 15 CALIFORNIA, a county government and the operator of the Sacramento 16 County Sheriff’s Department and its Correctional Health Services Division; 17 DEPUTY JARROD HOPECK; DEPUTY BENJAMIN GONZALES; 18 DEPUTY ROBERT RANUM; DEPUTY JEFFREY WILSON; and Does 1 19 through 20, 20 Defendants. 21 22 Through this action, Plaintiff Alexsey Predybaylo (“Plaintiff”) seeks redress from 23 Defendants Sacramento County (the “County”) and Deputies Jarrod Hopeck (“Hopeck”), 24 Benjamin Gonzales (“Gonzales”), Robert Ranum (“Ranum”), and Jeffrey Wilson 25 (“Wilson”) (collectively with the County, “Defendants”). Plaintiff’s Second Amended 26 Complaint (“SAC”), filed November 14, 2020, alleges two causes of action: (1) Individual 27 Liability for Violation of Plaintiff’s Constitutional Rights under 42 U.S.C. § 1983 (Unlawful 28 Use of Force) against Hopeck, Gonzales, Ranum, and Wilson; and (2) Municipal Liability 1 for Violation of Plaintiff’s Constitutional Rights (Deliberate and Callous Disregard for 2 Repeated Acts of Excessive Force) against the County. Presently before the Court are 3 the parties’ cross-Motions for Summary Judgment, both of which have been fully briefed. 4 ECF Nos. 53 (“Defs.’ Mot.”), 55, 57 (“Pl.’s Opp’n”), 58 (“Defs.’ Reply”), 59, 60. For the 5 reasons set forth below, Defendants’ Motion is GRANTED, and Plaintiff’s Motion is 6 DENIED as moot.1 7 8 BACKGROUND2 9 10 A. Plaintiff’s Arrest and Booking at the Sacramento County Main Jail 11 On July 5, 2017, Plaintiff was arrested by Sacramento Police Sergeant Andy Hall 12 (“Hall”) for possession of firearms and controlled substances as well as resisting arrest 13 and was taken to the Sacramento County Main Jail (“Main Jail”).3 The booking process 14 began with a cursory pat down and Plaintiff removing his shoelaces and belt. During this 15 time, Hall informed Plaintiff that he needed to confiscate Plaintiff’s clothes for evidence. 16 While Hall completed the arresting paperwork, Plaintiff was examined by medical 17 personnel. Plaintiff was taken to the medical intake screening, where he reported to 18 have taken Xanax and Norco and that he had scrapes along his knee from running away 19 from Hall. See Ex. P, ECF No. 53-5, at 176–81 (medical intake form dated July 5, 2017). 20 The medical intake form indicated that Plaintiff was detoxing from Xanax and Norco and 21 that medical personnel should follow-up with Plaintiff once he was booked 22 /// 23

24 1 Because oral argument would not have been of material assistance, the Court ordered these matters submitted on the briefs. E.D. Local Rule 230(g). 25 2 Unless otherwise indicated, the following facts are taken from Defendants’ Statement of Undisputed Facts and Plaintiff’s Response thereto. ECF Nos. 53-2, 57-1. Furthermore, all page citations 26 are to the CM/ECF assigned page numbers.

27 3 Plaintiff contends that Defendants’ inclusion of facts surrounding his arrest are irrelevant and prejudicial in violation of the Federal Rules of Evidence. See Pl.’s Response Defs.’ Statement of 28 Undisputed Facts, ECF No. 57-1 ¶¶ 1–7. The Court only recounts what is necessary for context. 1 into a housing unit. Id. Plaintiff was medically cleared and was transferred into the 2 County’s custody.4 3 The parties dispute whether Plaintiff was cooperative during this time and rely on 4 a surveillance video in the booking photo area. See Ex. M, ECF No. 53-5 (“Booking 5 Photo Video”) (no audio). In the beginning of said video, Plaintiff is handcuffed and 6 escorted by Hopeck and Ranum for his booking photo while Gonzales and Wilson 7 operated the fingerprint machine and camera.5 Id. at 0:01–0:10. Hopeck and Ranum 8 remain on each side of Plaintiff as photographs were taken of Plaintiff’s front and side 9 profiles. See id. at 0:10–1:27. At one point, when Plaintiff, Hopeck and Ranum’s backs 10 are facing the surveillance camera, the Booking Photo Video shows Plaintiff moving his 11 right arm. Id. at 1:28–1:36. According to Defendants, Plaintiff attempted multiple times 12 to move his right arm and pull away from Hopeck at his side, and that Ranum grabbed 13 Plaintiff’s left elbow because Plaintiff was continuing to move around during the photo 14 including jerking his body and shoulder downwards.6 See Ex. C, Ranum Dep., ECF No. 15 53-5, at 100–01; Ex. D, Gonzales Dep., ECF No. 53-5, at 126. On the other hand, 16 Plaintiff counters that he did not move his elbow or shift his weight in any manner that 17 was uncooperative or assaultive, only that he shifted his weight for a moment because 18 his leg hurt. See Ex. A, Predybaylo Dep., ECF No. 53-5, at 21–22, 47–48. The 19 4 Hopeck testified at his deposition that, during this same timeframe, he remembered hearing 20 noises and yelling at the nurse’s station, but he could not recall any specific threats or what was said. See Ex. B, Hopeck Dep., ECF No. 53-5, at 57. Plaintiff, however, testified that he did not remember being 21 verbally abusive. Ex. A, Predybaylo Dep., ECF No. 53-5, at 37.

22 5 According to Defendants, “[a]nytime an arrestee is handcuffed and escorted by two or more deputies for their booking photo, it indicates that the arrestee has been uncooperative.” Defs.’ Statement 23 of Undisputed Facts, ECF No. 53-2 ¶ 18 (citing Ex. C, Ranum Dep., ECF No. 53-5, at 99–100; Ex. D, Gonzales Dep., ECF No. 53-5, at 124–25). In response, Plaintiff cites Hall’s deposition testimony in which he testified that he did not recall Plaintiff being uncooperative; however, Hall does not appear in the 24 Booking Photo Video. See Ex. 6, Hall Dep., ECF No. 55-4, at 344 (stating he did not see Plaintiff being uncooperative during the booking process); see generally Booking Photo Video. 25 6 When Plaintiff attempted to move his right arm and pull away from Hopeck, Defendants claim 26 that “Gonzales, Ranum, and Hopeck were aware and believed that Plaintiff was passively resisting, while in handcuffs, throughout the booking process, and these are early indicators for deputies that an arrestee 27 can become violent.” Defs.’ Statement of Undisputed Facts, ECF No. 53-2 ¶ 23 (citing Ex. B, Hopeck Dep., ECF No. 53-5, at 71–72, 76; Ex. C, Ranum Dep., ECF No. 53-5, at 104; Ex. D, Gonzales Dep., ECF 28 No. 53-5, at 129, 130). 1 surveillance video ends with Hopeck and Ranum escorting Plaintiff out of the booking 2 photo area. Booking Photo Video at 1:37–1:41. 3 B. Plaintiff’s Strip Search Inside the Main Jail Safety Cell 4 Main Jail policy requires deputies to strip search arrestees when they are brought 5 in for drug possession, gun charges, or violence charges.7 After taking his booking 6 photos, Plaintiff, who remained in handcuffs, was taken to Safety Cell #2 for a strip 7 search by Hopeck, Ranum, Gonzales, and Wilson.8 See Ex. F, Hall Dep., ECF No. 53-5, 8 at 151 (stating Hall was also present during the strip search). There is a surveillance 9 video from inside Safety Cell #2. Ex. O, ECF No. 53-5 (“Safety Cell Video”) (no audio). 10 According to Defendants, the cameras inside the safety cells are covered with post-it 11 notes because the video is shared with non-law enforcement County employees. 12 Deputies remove the post-it note to ask the arrestee if they have drugs or weapons and 13 afterwards, the post-it note is placed back on the camera for privacy during the strip 14 search. With that said, the Safety Cell Video begins with Gonzales removing the post-it 15 note from the camera. Id. at 0:00–0:01. Plaintiff then enters Safety Cell #2 with Ranum 16 holding his left arm and Hopeck holding his right arm. Id. at 0:01–0:05. Gonzales 17 pointed to the camera and asked Plaintiff if he had any additional drugs hidden on his 18 body. Id. at 0:05–0:08 (no audio); see Ex. D, Gonzales Dep., ECF No. 53-5, at 121–22. 19 Plaintiff apparently did not answer Gonzales’ question but the Safety Cell Video shows 20 Plaintiff talking and turning around to face the deputies. Safety Cell Video at 0:05–0:09; 21 see also Ex. B, Hopeck Dep., ECF No. 53-5, at 81 (“Well, he’s – he’s talking and he’s 22 turning to the left as he’s like attempting to turn around towards Deputy Ranum.”); Ex. C, 23 Ranum Dep., ECF No. 53-5, at 97–98. Gonzales then replaced the post-it note over the 24 camera. Safety Cell Video at 0:09–0:11. 25

7 Plaintiff does not dispute the reason for the strip search or challenge the need for the strip 26 search. See Pl.’s Opp’n at 16.

27 8 Once again, Defendants assert that “[s]trip searches that involve more than two deputies usually indicate the arrestee is not cooperative.” Defs.’ Statement of Undisputed Facts, ECF No. 53-2 ¶ 29 (citing 28 Ex. E, Wilson Dep., ECF No. 53-5, at 143; Ex. F, Hall Dep., ECF No. 53-5, at 152–53). 1 As to what transpired after the camera was covered, Defendants refer to Plaintiff’s 2 deposition testimony. It is undisputed that the deputies removed Plaintiff’s handcuffs, 3 and Plaintiff then took off his shirt, socks, and shoes without incident. See Ex. A, 4 Predybaylo Dep., ECF No. 53-5, at 26–27. 5 Plaintiff next needed to remove his pants and underwear and at this time, he was 6 approximately one foot away from the wall. Id. at 30. Hopeck testified that he first used 7 verbal commands to get Plaintiff to comply with the strip search, face the wall, and 8 remove his pants. See Ex. B, Hopeck Dep., ECF No. 53-5, at 81 (“Well, we had told him 9 multiple times just to walk in and, you know, stop turning around, just walk forward, and it 10 appears there in the [Safety Cell Video] that he’s continuously turning to the left . . .”). 11 Plaintiff provides the following account as to what happened next: 12 And that’s when Deputy Hopeck told me to put my hands behind my back, and I was confused about it. And then he told 13 me – and then he – he wrapped his hands around my thumbs – wrapped his hand – I had my hands behind my back, and he 14 told me to relax your thumbs.9 15 And then once I told him, “my thumbs are relaxed,” and then he yelled, “I said, relax your f’ing [sic] thumbs.” And then that’s 16 when the other two officers – I believe it was Ranum and Gonzales – they pulled my pant legs out from under me. 17 And I went head first, and I hit my head on the ground. And 18 then Hopeck dropped his knee – dropped his knee on my temple and then had me pinned down to the ground.10 19 20 Ex. A, Predybaylo Dep., ECF No. 53-5, at 26–27; but see Ex. B, Hopeck Dep., ECF 21 No. 53-5, at 56 (“[H]e was actively resisting by, you know, pulling his body, you know, 22 not following directions, moving around, pulling away from our grasp, stuff like that, but 23 not violent.”); Ex. C, Ranum Dep., ECF No. 53-5, at 93 (“There wasn’t any violent 24 encounter with him. It was just him being verbally uncooperative at the beginning. . . .

25 9 Hopeck explained that a “control hold” such as the one described by Plaintiff is used to prevent an arrestee from spinning around if the arrestee does not comply. See Ex. B, Hopeck Dep., ECF No. 53- 26 5, at 62.

27 10 According to Defendants, Safety Cell #2 has a padded floor. Pl.’s Response Defs.’ Statement of Undisputed Facts, ECF No. 57-1 ¶ 26. However, Plaintiff asserts that “the floor has nominal padding 28 that does not prevent him from receiving a concussion and other injuries.” Id. 1 He kept turning around on us. So we grabbed ahold of him and assisted him to the 2 ground and grabbed the evidence.”), 94 (“We don’t place people on the ground that are 3 cooperative. . . . He turns around on us multiple times, and that is . . . directly against 4 what we tell him to do for our safety and his safety.”); Ex. D, Gonzales Dep., ECF 5 No. 53-5, at 123–24 (“[Plaintiff’s] just basically being passive resistive at that point. We 6 have them face the wall for everyone’s safety. . . . And then pushing back into us and 7 not facing the wall, not following directions is just – it’s a sign of being uncooperative, 8 which it looks like is going on in the [Safety Cell Video].”). Hopeck initially retained 9 control of Plaintiff’s thumbs but as Plaintiff fell, Hopeck let go. Ex. A, Predybaylo Dep., 10 ECF No. 53-5, at 32. As a result, Plaintiff was unable to put his hands out in front of him 11 to block his fall. Plaintiff believes he “blacked out for a little bit” because he cannot 12 remember Hopeck shifting his knee from Plaintiff’s temple to back. Id. at 33. 13 Hopeck, Ranum, and Gonzales then removed Plaintiff’s pants and underwear. It 14 is undisputed that during this entire process, which lasted approximately four minutes, 15 Plaintiff was not punched or kicked by any of the deputies. Gonzales eventually 16 removed the post-it note from the surveillance camera, which captured Plaintiff lying 17 naked and face down on the ground with Hopeck holding Plaintiff’s arms and placing his 18 right leg on Plaintiff’s upper back. See Safety Cell Video at 4:43–49. Ranum meanwhile 19 is holding Plaintiff’s legs, with Plaintiff’s ankles crossed and his lower legs bent towards 20 his head. Id. It is undisputed that Wilson never touched or was involved in any control 21 holds on Plaintiff.11 After the deputies left Safety Cell #2, Plaintiff put on a paper suit, 22 was placed into a holding cell, and eventually was moved into a housing unit at the Main 23 Jail. 24 /// 25 /// 26 11 What the parties dispute is whether Wilson only stood in the doorway of Safety Cell #2 or if he 27 entered the room. See Pl.’s Response Defs.’ Statement of Undisputed Facts, ECF No. 57-1 ¶ 64; see also Ex. N, ECF No. 53-5 (surveillance video of hallway outside Safety Cell #2) (only depicting Plaintiff and 28 the deputies entering Safety Cell #2). 1 STANDARD 2 3 The Federal Rules of Civil Procedure provide for summary judgment when “the 4 movant shows that there is no genuine dispute as to any material fact and the movant is 5 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 6 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 7 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 8 Rule 56 also allows a court to grant summary judgment on part of a claim or 9 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 10 move for summary judgment, identifying each claim or defense—or the part of each 11 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 12 Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a 13 motion for partial summary judgment is the same as that which applies to a motion for 14 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 15 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 16 judgment standard to motion for summary adjudication). 17 In a summary judgment motion, the moving party always bears the initial 18 responsibility of informing the court of the basis for the motion and identifying the 19 portions in the record “which it believes demonstrate the absence of a genuine issue of 20 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 21 responsibility, the burden then shifts to the opposing party to establish that a genuine 22 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., Ltd. v. 23 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 24 391 U.S. 253, 288–89 (1968). 25 In attempting to establish the existence or non-existence of a genuine factual 26 dispute, the party must support its assertion by “citing to particular parts of materials in 27 the record, including depositions, documents, electronically stored information, 28 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 1 not establish the absence or presence of a genuine dispute, or that an adverse party 2 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 3 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 4 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 6 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing party must also 7 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 8 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 9 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 10 before the evidence is left to the jury of “not whether there is literally no evidence, but 11 whether there is any upon which a jury could properly proceed to find a verdict for the 12 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 13 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 14 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 15 Rule [56(a)], its opponent must do more than simply show that there is some 16 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 17 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 18 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587. 19 In resolving a summary judgment motion, the evidence of the opposing party is to 20 be believed, and all reasonable inferences that may be drawn from the facts placed 21 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 22 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 23 obligation to produce a factual predicate from which the inference may be drawn. 24 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 25 810 F.2d 898 (9th Cir. 1987). 26 /// 27 /// 28 /// 1 ANALYSIS 2 3 A. Defendants’ Motion for Summary Judgment 4 1. First Cause of Action against Hopeck, Gonzales, Ranum, and Wilson 5 6 “To state a claim under § 1983, a plaintiff must allege the violation of a right 7 secured by the Constitution and laws of the United States, and must show that the 8 alleged deprivation was committed by a person acting under color of state law.”12 9 West v. Atkins, 487 U.S. 42, 48 (1988). “In addressing an excessive force claim brought 10 under § 1983, analysis begins by identifying the specific constitutional right allegedly 11 infringed by the challenged application of force.” Graham v. Connor, 490 U.S. 386, 394 12 (1989) (citation omitted). “The validity of the claim must then be judged by reference to 13 the specific constitutional standard which governs that right, rather than to some 14 generalized ‘excessive force’ standard.” Id. (citations omitted). In this case, the parties 15 agree that “the Fourth Amendment sets the applicable constitutional limitations for 16 considering claims of excessive force during pretrial detention.” Lolli v. Cnty. of Orange, 17 351 F.3d 410, 415 (9th Cir. 2003); see also Pierce v. Multnomah Cnty., Or., 18 76 F.3d 1032, 1043 (9th Cir. 1996) (stating that the Fourth Amendment governs the 19 treatment of an arrestee up until arraignment). 20 Excessive force claims under the Fourth Amendment are analyzed under the 21 “objective reasonableness” standard. See Graham, 490 U.S. at 395; Drummond v. City 22 of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). The crucial inquiry in such cases is 23 “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 24 circumstances confronting [the officers], without regard to their underlying intent or 25 motivation.” Graham, 490 U.S. at 397; Blankenhorn v. City of Orange, 485 F.3d 463, 26 477 (9th Cir. 2007). 27 12 There is no dispute that Hopeck, Gonzales, Ranum, and Wilson were acting under color of state 28 law. 1 Calculating the reasonableness of the force used “requires a careful balancing of 2 the nature and quality of the intrusion on the individual’s Fourth Amendment interests 3 against the countervailing government interests at stake.” Graham, 490 U.S. at 396; 4 Blankenhorn, 485 F.3d at 477. The court “first assess[es] the quantum of force used,” 5 then “measure[s] the governmental interests at stake by evaluating a range of factors.” 6 Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007). These factors include, 7 but are not limited to, “the severity of the crime at issue, whether the suspect poses an 8 immediate threat to the safety of the officers or others, and whether he is actively 9 resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see 10 also Young v. Cnty. of L.A., 655 F.3d 1156, 1163 (9th Cir. 2011) (stating that “the most 11 important [factor] is whether the individual posed an immediate threat to officer or public 12 safety.”). “These factors, however, are not exclusive” as the court must “examine the 13 totality of the circumstances and consider ‘whatever specific factors may be appropriate 14 in a particular case, whether or not listed in Graham.’” Bryan v. MacPherson, 630 F.3d 15 805, 826 (9th Cir. 2010) (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). 16 “Because the excessive force inquiry nearly always requires a jury to sift through 17 disputed factual contentions, and to draw inferences therefrom . . . summary judgment or 18 judgment as a matter of law in excessive force cases should be granted sparingly.” 19 Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc) (internal quotation 20 marks and citation omitted). The Court will first address whether Hopeck, Ranum, and 21 Gonzales’ use of force was objectively reasonable, then whether Wilson had a duty to 22 intervene. 23 a. Hopeck, Ranum, and Gonzales13 24 Regarding the type and amount of force inflicted, it is undisputed that Hopeck 25 used a control hold by grabbing Plaintiff’s thumbs and Ranum and Gonzales grabbed 26 Plaintiff’s pant legs and pulled him to the ground. See Pl.’s Opp’n at 9; Pl.’s Response 27 13 As previously stated, Plaintiff does not object to the strip search itself, “only to the violent force 28 used against him” during said search. See Pl.’s Opp’n at 16. 1 Defs.’ Statement of Undisputed Facts, ECF No. 57-1 ¶¶ 41, 46, 53 (undisputed that 2 Defendants did not kick or punch Plaintiff during their encounter). In the Ninth Circuit, 3 the uses of pepper spray, batons, and police service dogs are regarded as forms of 4 “intermediate force that, while less severe than deadly force, nonetheless present a 5 significant intrusion upon an individual’s liberty interests.” Young, 655 F.3d at 1161 6 (describing pepper spray and baton blows as “forms of force capable of inflicting 7 significant pain and causing serious injury.”); see also Smith v. City of Hemet, 8 394 F.3d 689, 701–02 (9th Cir. 2005) (stating that the police department’s use of force 9 policy “classifies the use of both pepper spray and a police service dog as ‘intermediate’ 10 force.”). Here, the control hold, grabbing Plaintiff’s pant legs, and pulling him to the 11 ground are not, on their own, equivalent to the intermediate uses of force described 12 above. As such, the Court finds that the force used in this case was de minimis. 13 Next, the Court must examine the governmental interest at stake, including the 14 Graham factors. In this case, Defendants concede that, throughout their encounter, 15 Plaintiff was never physically violent or combative. Defs.’ Reply at 3. Instead, 16 Defendants assert that, during the strip search, Plaintiff failed to comply with verbal 17 commands to face the wall and attempted to turn his body away from the wall. Defs.’ 18 Mot. at 17, 19. Plaintiff disputes that he engaged in any threatening or uncooperative 19 behavior; for example, Plaintiff points out that he removed his shirt, socks, and shoes 20 without incident and that he relaxed his thumbs when ordered to do so by Hopeck. See 21 Pl.’s Opp’n at 10–13, 15; Ex. A, Predybaylo Dep., ECF No. 53-5, at 26–27. 22 Viewing the evidence in a light most favorable to Plaintiff, and taking all inferences 23 in his favor, the Court finds that the Graham factors weigh against a finding of excessive 24 force. Plaintiff does not explicitly dispute Defendants’ contentions that Plaintiff, who was 25 out of handcuffs, attempted to turn his body towards the deputies despite their repeated 26 instructions to face the wall. See Pl.’s Opp’n at 10–12, 15–16. Aside from stating that 27 he was not uncooperative or belligerent, Plaintiff has not provided any evidence 28 /// 1 contradicting Defendants’ safety concerns.14 On the other hand, Hopeck, Ranum, and 2 Gonzales have all testified that Plaintiff’s aforementioned actions led them to believe that 3 “Plaintiff posed a potential larger threat if they released their control hold on Plaintiff” and 4 that “Plaintiff may attempt to strike them because Plaintiff continued to turn around after 5 being told to face the wall.” Defs.’ Mot. at 17, 19; see Ex. B, Hopeck Dep., ECF No. 53- 6 5, at 60 (“I don’t know if he was dangerous, but he could possibly, you know, pose a 7 threat because he kept turning around. But he wasn’t saying ‘I’m going to punch you,’ 8 anything like that. He just didn’t want to follow directions for our safety.”); Ex. C, Ranum 9 Dep., ECF No. 53-5, at 103 (“[W]e want [Plaintiff] to face the wall for his safety and 10 ours.”); Ex. D, Gonzales Dep., ECF No. 53-5, at 123–24 (“We have them face the wall 11 for everyone’s safety. . . . And then pushing back into us and not facing the wall, not 12 following directions is . . . a sign of being uncooperative.”). 13 Plaintiff contends that the deputies “could have accomplished the collection of 14 Plaintiff’s clothing by simply placing Plaintiff in the room by himself and asking him to 15 take off his clothes, put them into a bag, and change into the jail uniform[.]” Pl.’s Opp’n 16 at 14–15. In response, Defendants explain that “deputies are hesitant to leave arrestees 17 alone in the safety cell if they are arrested for drug possession, have drugs in their anus, 18 and the bag breaks—causing the arrestee to [overdose].” Defs.’ Mot. at 17. 19 Furthermore, because Hall needed Plaintiff’s clothes for evidence, the “deputies were 20 concerned Plaintiff could damage the evidence in the safety cell if he were left alone.” 21 Id. Even if an arrestee was entitled to dictate the manner in which officers effectuate a 22 jail house search, which he is not, the Court finds Defendants’ explanations persuasive. 23 Finally, it is undisputed that Hopeck, Ranum, and Gonzales attempted other means 24 before deploying the force in question, specifically by first using verbal commands to

25 14 Plaintiff asserts that Hall testified at his deposition that Plaintiff was cooperative and non-violent. See Pl.’s Opp’n at 11, 15 (citing Ex. 6, Hall Dep., ECF No. 55-4, at 344, 355). However, Hall stated that 26 he did not remember “very many details from” Plaintiff’s strip search, including why more than one officer was required, whether a control hold was used, or even why Plaintiff ended up on the ground. Ex. 6, Hall 27 Dep., ECF No. 55-4, at 345, 349, 351, 355. Furthermore, Hall testified that, “if the person is not doing what they’re told, that could be a reason to hold somebody and forcibly have to search them,” but again he 28 could not recall or remember whether Plaintiff resisted in such a way. Id. at 352–53, 355. 1 face the wall, then the control hold, to gain Plaintiff’s compliance before Plaintiff was 2 pulled to the ground. As explained above, Plaintiff has not expressly disputed that he 3 turned away from the wall despite instructions to do so. 4 In balancing the nature of the force with the governmental interests at stake, the 5 Court concludes that, based on the undisputed evidence and viewing it in a light most 6 favorable to Plaintiff, the force used by Hopeck, Ranum, and Gonzales was objectively 7 reasonable under the circumstances. As such, summary judgment is GRANTED as to 8 these three Defendants. 9 b. Wilson 10 It is undisputed that Wilson never touched or was involved in any control holds on 11 Plaintiff. Pl.’s Response Defs.’ Statement of Undisputed Facts, ECF No. 57-1 ¶ 64. As 12 a result, Plaintiff’s theory is that Wilson had a duty to intervene to stop the excessive 13 force against Plaintiff since he witnessed the strip search. Pl.’s Opp’n at 19 (citing 14 Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)). However, because there 15 was no predicate constitutional injury, the failure to intervene claim fails. Accordingly, 16 summary judgment is GRANTED as to Wilson. 17 2. Second Cause of Action against the County 18 Municipalities cannot be vicariously liable for the conduct of their employees 19 under § 1983, but rather are only “responsible for their own illegal acts.” Connick v. 20 Thompson, 563 U.S. 51, 60 (2011); see Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 21 658, 694 (1978) (stating a municipality may only be liable where it individually caused a 22 constitutional violation via “execution of government’s policy or custom, whether by its 23 lawmakers or by those whose edicts or acts may fairly be said to represent official 24 policy.”). Because there is no underlying constitutional violation, Plaintiff’s Monell claim 25 is foreclosed. Accordingly, Defendants’ Motion for Summary Judgment as to this claim 26 is GRANTED.15 27 15 Because the Court finds no constitutional violation, it is also unnecessary to reach the derivative 28 issue of qualified immunity. 1 B. Plaintiff's Motion for Summary Judgment 2 Because the Court finds that Defendants are entitled to summary judgment on 3 | both causes of action, Plaintiff's Motion is DENIED as moot. 4 5 CONCLUSION 6 7 For the reasons set forth above, Defendants’ Motion for Summary Judgment, ECF g | No. 53, is GRANTED whereas Plaintiff's Motion for Summary Judgment, ECF No. 55, is g | DENIED as moot. The Clerk of Court is directed to enter judgment in favor of 10 | Defendants and to close the case. 11 IT |S SO ORDERED. 12 43 | Dated: June 16, 2022 /y J 14 Aor, (. SENIOR UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 14