Robinson v. City of San Jose

• Court: District Court, N.D. California
• Decided: September 16, 2021
• Docket: 5:19-cv-06768
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

10 NICHOLAS ROBINSON, Case No. 19-cv-06768-NC 11 Plaintiff, ORDER GRANTING IN PART AND 12 v. DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL 13 CITY OF SAN JOSE, et al., SUMMARY JUDGMENT 14 Defendants. Re: Dkt. No. 46 15 16 In this excessive force case brought by Plaintiff Nicholas Robinson, Defendants the 17 City of San Jose and its police officers Ryan Dote, Jaime Kulik, and Nicholas Petterson 18 move for partial summary judgment on all of Robinson’s claims, except his excessive 19 force claim against Officer Dote. The Court finds that under Robinson’s version of the 20 disputed material facts, a reasonable jury could find that officers Petterson and Kulik 21 violated Robinson’s Fourth Amendment right under 42 U.S.C. § 1983 to be free from 22 excessive force and that those rights were clearly established at the time of the incident. 23 There are too many disputed material facts about the level of Petterson and Kulik’s use of 24 force. As such, the Court declines to rule on qualified immunity at this stage. 25 However, the Court does not find that a reasonable jury could find in Robinson’s 26 favor on his Monell claims against the City of San Jose, or on his claims for denial of 27 medical care under the Fourth Amendment, and substantive due process under the 1 GRANTED IN PART and DENIED IN PART. 2 I. BACKGROUND 3 A. Undisputed Facts 4 The following facts are viewed in the light most favorable to Robinson, the non- 5 movant, and are undisputed unless otherwise indicated. On November 29, 2018, San Jose 6 police officers approached a dark homeless encampment as part of a “community policing 7 foot patrol” in search of trespassing and illegal camping. See Dkt. No. 46-2 (“Petterson 8 Depo.”) at 34:3–35:6; Dkt. No. 46-5 (“Neumer Decl.”), Ex. A Body Cam Video 9 X81280597 (“Petterson Body Cam”). Plaintiff Nicholas Robinson stood at the area 10 abutting the 101 Southbound Freeway ramp at Westbound Story Road in San Jose. See 11 generally Petterson Body Cam. When the officers saw Robinson, he remained on the 12 sidewalk and did not walk toward the officers. See id. at 00:23. Robinson used a 13 flashlight in the darkness, and as police officers approached him, Robinson’s flashlight 14 shined directly at the officers’ eyes. Id. The officers approached Robinson and ordered 15 him to turn his flashlight off. See Petterson Depo. at 59:12–19; Petterson Body Cam at 16 00:36. The parties dispute how and whether Robinson complied with the officers’ request. 17 The officers ordered Robinson to leave the area, but Robinson did not comply. See 18 Petterson Body Cam at 00:45. Robinson explained to the officers why he would not leave 19 the area. Id. at 00:59. After Robinson gestured toward the encampment and toward the 20 officers again using his flashlight, Officer Dote attempted to take the flashlight. Id. at 21 1:10. The officers engaged in a takedown maneuver to force Robinson to the ground. See 22 id. The parties also disagree on each officer’s level of force in the takedown maneuver, as 23 well as which officers were involved in initiating the takedown. 24 Officer Dote and Officer Petterson grabbed both of Robinson’s arms and placed 25 him in a rear wrist-lock hold without announcing that he was under arrest. See Petterson 26 Body Cam at 1:19; see also Petterson Depo. at 69:12–24. Once Robinson was on the 27 ground, Officer Petterson had a knee on Robinson’s leg and held Robinson’s hands behind 1 1:15–1:35; Dkt. No. 47-1 (“Farzam Decl.”), Ex. G (“Police Report”) at 8, 10, 16, 20; Dkt. 2 No. 46-1, Ex. 1 (“Kulik Depo.”) at 68:12–22, 74:8–17. 3 Once on the ground, Robinson complained of pain, stated that his left arm was 4 injured, and that he needed to go to the hospital. See Petterson Body Cam at 2:23; see also 5 Neumer Decl., Ex. B Body Cam X81078885 (“Ikeuchi Body Cam”) at 2:47. Another 6 officer, Officer Ikeuchi, radioed to request emergency medical services for Robinson. See 7 Ikeuchi Body Cam at 3:50. 8 The officers ultimately arrested and booked Robinson for resisting, interfering, or 9 delaying a public officer’s duties under Cal. Pen. Code § 148(a)(1). See Police Report at 10 4; Dkt. No. 46 (“MSJ”) at 8. Robinson suffered serious injuries because of the takedown 11 maneuver, including a broken left humerus bone where his upper arm meets the elbow, 12 potential nerve damage, a black eye, body and facial bruising, and lacerations. See Farzam 13 Decl., Ex. B “Robinson Depo.” at 99:3–4, 121:7–13, 136:23–137:9. 14 B. Procedural History 15 Plaintiff Nicholas Robinson filed this case on October 18, 2019, bringing claims 16 under 42 U.S.C. § 1983 for excessive force, denial of medical care, and substantive due 17 process against both the City of San Jose, and the individual officer defendants Ryan Dote, 18 Jaime Kulik, and Nicholas Petterson. Dkt. No. 1 (“Compl”). Plaintiff also brought Monell 19 liability claims under 42 U.S.C. § 1983 for ratification, inadequate training, and 20 unconstitutional custom, practice, or policy against the City of San Jose. Id. Defendants 21 moved for partial summary judgment on claims 2, 3, 4, 5, and 6 of Robinson’s complaint, 22 and on claim 1 as against Petterson and Kulik. See MSJ. Robinson timely opposed the 23 motion and Defendants filed a reply. Dkt. Nos. 47 (“Opp’n”), 48 (“Reply”). All parties 24 consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 10, 25 11. 26 C. Evidentiary Objections 27 Defendants submit factual corrections and evidentiary objections to Plaintiff’s 1 First, because Defendants only cite the Federal Rules of Evidence for each objected exhibit 2 without providing further justification, the Court OVERRULES each evidentiary 3 objection. See Reply at 2. The Court will not assume the rationale behind each 4 evidentiary objection.1 The Court’s ruling is without prejudice to raising the objections in 5 a motion in limine. Second, Plaintiff’s various names for different body cam footage are 6 derived from the timestamps on the videos submitted by Defendants themselves. See 7 Neumer Decl., Exs. A, B.2 Each video shows the body cam footage worn by a different 8 officer. Contrary to Defendants’ assertion, these footage labels do appear in the record. 9 Plaintiff’s Exhibit A to Farzam’s Declaration is the same video clip as Defendant’s Exhibit 10 A of Neumer’s Declaration; except that Plaintiff’s Exhibit A is a shortened version which 11 censors the officers’ faces. See Farzam Decl., Ex. A Body Cam Footage (“Petterson Body 12 Cam Redacted”); compare Neumer Decl., Ex. A Body Cam Footage X81280597. Third, 13 noting that Robinson misrepresents the evidence about use of force highlights that there 14 may be disputes of material fact about what the footage of the incident shows. 15 II. LEGAL STANDARD 16 Summary judgment may be granted only when, drawing all inferences and 17 resolving all doubts in favor of the nonmoving party, there is no genuine dispute as to any 18 material fact. Fed. R. Civ. P. 56(a); Tolan v. Cotton, 572 U.S. 650, 651 (2014); Celotex 19 Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under governing 20 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 21 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if “the evidence is 22 such that a reasonable jury could return a verdict for the nonmoving party.” Id. Bald 23 assertions that genuine issues of material fact exist are insufficient. Galen v. Cnty. of L.A., 24 477 F.3d 652, 658 (9th Cir. 2007). 25

26 1 The Court addresses Defendants’ additional arguments against admissibility for Plaintiff’s Use of Force data and reports in section D.2.b. below. 27 2 Neumer’s declaration erroneously switches the labels of the officers wearing each body 1 The moving party bears the burden of identifying those portions of the pleadings, 2 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. 3 Celotex, 477 U.S. at 323. Once the moving party meets its initial burden, the nonmoving 4 party must go beyond the pleadings, and, by its own affidavits or discovery, set forth 5 specific facts showing that a genuine issue of fact exists for trial. Fed. R. Civ. P. 56(c); 6 Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1004 (9th Cir. 1990) (citing Steckl v. 7 Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)). All justifiable inferences, however, 8 must be drawn in the light most favorable to the nonmoving party. Tolan, 572 U.S. 651 9 (citing Liberty Lobby, 477 U.S. at 255). 10 III. DISCUSSION 11 Plaintiff’s complaint alleges a total of six claims. Plaintiff first alleges three claims 12 against Defendants Dote, Petterson, and Kulik under 42 U.S.C. § 1983 for (1) excessive 13 force in violation of the Fourth Amendment; (2) “denial of medical care” in violation of 14 the Fourth Amendment; and (3) substantive due process. See Compl. ¶¶ 22–52. Next, 15 plaintiff also alleges three claims against Defendant the City of San Jose for municipal 16 liability for (4) ratification, (5) inadequate training, and (6) unconstitutional custom, 17 policy, or practice. See id. ¶¶ 53–90. Defendants move for partial summary judgment on 18 claims 2, 3, 4, 5, and 6, as well as claim 1 only against Defendants Petterson and Kulik. 19 See MSJ at i. Defendants do not move for summary judgment on the excessive force claim 20 against Dote. 21 A. Excessive Force and Qualified Immunity – Claim 1 22 The first and primary issue is Robinson’s claim under 42 U.S.C. § 1983 that Officer 23 Petterson and Officer Kulik violated Robinson’s Fourth Amendment rights by using 24 excessive force against him. Defendants Petterson and Kulik move for qualified immunity 25 on this issue, asserting that no constitutional violation occurred under clearly established 26 law. See Reply at 9–11. Robinson disagrees, asserting that his version of the facts depict a 27 Fourth Amendment violation under the objective reasonableness principles articulated in 1 Graham and cases applying it provide the framework for assessing Petterson and Kulik’s 2 conduct. Under these principles, the Court finds that Petterson and Kulik’s level of 3 involvement with the “takedown” maneuver, restraint, and handcuffing present a genuine 4 dispute of material fact. 5 Because an inquiry into excessive force “nearly always requires a jury to sift 6 through disputed factual contentions, and to draw inferences therefrom,” the Ninth Circuit 7 has held “on many occasions that summary judgment or judgment as a matter of law in 8 excessive force cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 9 (9th Cir. 2002). The Court will evaluate each alleged use of force separately. There are 10 two types of force at issue: first, Petterson’s assistance in Dote’s “takedown” maneuver, 11 and second, the method in which Petterson and Kulik restrained and handcuffed Robinson. 12 1. Takedown 13 The parties dispute the following facts leading up to the takedown maneuver: after 14 Officer Dote approached Robinson and directed him to divert his flashlight away from 15 their eyes, Robinson claims that he complied within seconds and pointed the flashlight 16 toward the ground, while Officer Petterson interrogated him and shined his own flashlight 17 in Robinson’s eyes. See Petterson Body Cam Redacted at 00:20. After asking him to 18 move along, Robinson claims that he held the flashlight loosely in his left (non-dominant) 19 hand, and gestured to the homeless encampment and then back toward Officer Dote. See 20 Petterson Body Cam Redacted at 00:30–00:53. Defendants claim that Robinson defied 21 multiple orders to stop shining his flashlight at them, see MSJ at 9; Dote Depo at 44:5–9; 22 Dkt. No. 46-2 at 59:16–23, and that he actively refused to leave the area of the officers’ 23 ongoing investigation, see Robinson Depo. at 89:21–90:11. 24 When Robinson gestured his flashlight toward Dote, Dote attempted to take the 25 flashlight, and Defendants claim that Plaintiff resisted the attempt by moving the light to 26 his other hand. See Petterson Body Cam at 1:05–1:10. Robinson states that he lowered the 27 flashlight before Officer Dote even spoke, and immediately replied that he would put his 1 left arm while Petterson grabbed Robinson’s right arm. See Petterson Depo. at 69:17–24. 2 Robinson also claims that he did not try to pull or remove his arms from their grasp, see 3 Robinson Depo. at 102:21–24, and that Dote forced Robinson face-first into the cement 4 sidewalk, see Petterson Body Cam at 1:15–1:35. Petterson testified that he assisted in the 5 takedown by “pull[ing] the suspect’s right arm behind his back and appl[ying] downward 6 pressure to push him toward the ground.” Petterson Depo. at 111:20–25. Finally, 7 Robinson states that as both Dote and Petterson held him on the ground, he heard a 8 “crack[ing]” sound.” Petterson Body Cam at 1:18; Robinson Depo. at 106:21; 114:20. 9 Defendants claim that the level of force used was minimal and reasonable. 10 Although Officer Petterson held Robinson’s arm when Officer Dote initiated the takedown 11 maneuver, Petterson claims he did not initiate or cause the maneuver. See Ikeuchi Body 12 Cam at 1:30–1:40; Petterson Depo. at 67:23–68:4. Petterson testified that he did not know 13 Dote was going to conduct the takedown, nor did he communicate with Dote beforehand 14 about his intention to do so. Petterson Depo. at 73:3–11. According to Defendants’ 15 account of the body cam footage, at worst, Petterson’s force “consisted of holding plaintiff 16 and applying pressure designed to control his movements and guide him downward.” MSJ 17 at 4; see Petterson Body Cam at 1:30–1:40; see Petterson Depo. at 67:23–68:4. 18 According to Robinson, Dote also had a knee on Robinson’s back while he lay 19 compliantly on the ground. Petterson Body Cam at 1:15–1:35. Robinson further claims 20 that both Dote and Petterson used their bodyweight to press the already injured Robinson 21 into the cement sidewalk while applying continued pressure to his arms. See Petterson 22 Body Cam at 1:15–1:35. Robinson argues that Petterson’s takedown assist was objectively 23 unreasonable because it was without notification or warning, and Robinson only 24 committed a minor offense that did not pose an immediate threat or attempt to flee. See 25 Opp’n at 13. Defendants claim that it was constitutional for Petterson to use force as 26 necessary to effect Robinson’s arrest under the circumstances. MSJ at 8. 27 2. Restraint and Handcuffing 1 behind his back, and Officer Kulik placed them in handcuffs. Petterson Body Cam at 2 1:20–1:40. Defendants claim that Kulik’s involvement in Robinson’s arrest is even more 3 minimal because she did nothing more than put handcuffs on Robinson after he was 4 already on the ground. MSJ at 10. According to Robinson’s account, Dote stood aside 5 and Officer Kulik joined Petterson in using a body weight restraint hold to place Robinson 6 in handcuffs. Id. at 1:35; Opp’n at 14. As Kulik and Petterson ratcheted the handcuffs, 7 Robinson audibly yelled in pain at the same time there was an audible crack from his arm. 8 Id. at 1:38. Robinson continued to scream, id. at 2:20, and continued to inform Petterson 9 and Kulik that he needed to go the hospital, id. at 3:00. Robinson claims at that point, 10 Petterson and Kulik rolled him onto his right side, keeping him handcuffed behind his 11 back, on the ground, until medical services arrived. Id. at 3:12. Defendants dispute that 12 Petterson or Kulik used their body weight to hold Robinson down and that these facts are 13 absent from Robinson’s account of the incident in his deposition testimony and his 14 complaint. Reply at 7. 15 Robinson argues that Petterson and Kulik’s wrist-lock maneuver and body weight 16 restraint holds were unreasonable. Opp’n at 14. He further argues that Kulik’s tight 17 handcuff restraints, long after Robinson’s screams of pain and injury, were similarly 18 unreasonable. Id. at 15. 19 3. Officer Petterson and Officer Kulik’s Use of Force Is Disputed and Material 20 The Court finds that the amount of force used in both interactions is factually 21 disputed and it is not clear that a reasonable fact finder could come to a single conclusion 22 based on the video evidence. Therefore, it is not proper for adjudication at the summary 23 judgment stage. The Court also finds that it is not appropriate to decide qualified 24 immunity at this stage of the case. See Glenn v. Washington County, 673 F.3d 864, 870 25 (9th Cir. 2011) (“We express no opinion as to the second part of the qualified immunity 26 analysis and remand that issue to the district court for resolution after the material factual 27 disputes have been determined by the jury.”); Espinosa v. City & County of San Francisco, 1 598 F.3d 528, 532 (9th Cir. 2010) (affirming a denial of summary judgment on qualified 2 immunity grounds because there were genuine issues of fact regarding whether the officers 3 violated plaintiff’s Fourth Amendment rights, which were also material to a proper 4 determination of the reasonableness of the officers’ belief in the legality of their actions); 5 Santos, 287 F.3d at 855 n.12 (finding it premature to decide the qualified immunity issue 6 “because whether the officers may be said to have made a ‘reasonable mistake’ of fact or 7 law may depend on the jury’s resolution of disputed facts and the inferences it draws 8 therefrom”). 9 If Defendants bring a post-trial motion for qualified immunity, it will then become 10 Robinson’s burden to define the violated right with specificity and show that the law is 11 “clearly established” against the defendants at the time of the challenged conduct. Saucier 12 v. Katz, 533 U.S. 194, 201 (2001); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059–60 13 (9th Cir 2006); Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (“Except in 14 the rare case of an ‘obvious’ instance of constitutional misconduct (which is not presented 15 here), Plaintiffs must ‘identify a case where an officer acting under similar circumstances 16 as [defendants] was held to have violated the Fourth Amendment.’”) (quoting White v. 17 Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). 18 In sum, Robinson raises a triable issue of material fact on his excessive force claim 19 against Petterson and Kulik. Because there is a triable question of fact about the extent of 20 force each officer used to accomplish the takedown, restraint, and handcuffing, the Court 21 DENIES Defendants’ partial motion for summary judgment on Robinson’s Fourth 22 Amendment excessive force claim against Petterson and Kulik. 23 B. Denial of Medical Care – Claim 2 24 Defendants argue that Robinson was not denied medical care in violation of the 25 Fourth Amendment, and the Court agrees. See MSJ at 6. Both Robinson’s and 26 Defendants’ evidence show that the officers asked for Robinson’s identification and 27 summoned emergency medical care shortly after Robinson complained of his arm hurting. 1 advance any argument against summary judgment for this claim and did not provide any 2 evidence in support. Thus, the Court GRANTS summary judgment in Defendants’ favor 3 on Robinson’s claim under section 1983 for denial of medical care in violation of the 4 Fourth Amendment. 5 C. Substantive Due Process – Claim 3 6 Similarly, Defendants argue that Robinson’s third claim for violation of his 7 substantive due process rights also fails. According to Defendants, this claim is not 8 cognizable as a matter of law because only the Fourth Amendment covers the type of 9 conduct and claims at issue, whereas notions of substantive due process are embodied 10 within the Fourteenth Amendment. See MSJ at 7; see also Graham, 490 U.S. at 396; 11 Tarabochia v. Adkins, 766 F.3d 1115, 1129 (9th Cir. 2014). A substantive due process 12 claim challenging the use of force can proceed only if neither the Fourth nor Eighth 13 Amendments apply. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842–43 (1998); 14 United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). 15 Like with his denial of medical care claim, Robinson does not present any evidence 16 in support of his substantive due process claim either. He simply fails to argue that the use 17 of force constituted a deprivation of liberty without due process of law. Therefore, 18 because his excessive force claim is not actionable, the Court GRANTS summary 19 judgment on Robinson’s substantive due process claim. 20 D. Municipal Liability 21 In addition to the claims against Petterson, Kulik, and Dote, Defendants move for 22 summary judgment on Robinson’s claims for municipal liability against the City of San 23 Jose. Robinson opposes the motion on these municipal liability claims, arguing that the 24 City is liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) for (1) ratifying the 25 officers’ conduct, (2) its failure to properly train officers, and (3) its custom of 26 unconstitutional policing. See Opp’n at 17. 27 Under section 1983, a municipality is only liable when the alleged acts implement a 1 690. “Under Monell, municipalities are subject to damages under § 1983 in three 2 situations: when the plaintiff was injured pursuant to an expressly adopted official policy, a 3 long-standing practice or custom, or the decision of a final policymaker.” Ellins v. City of 4 Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). A plaintiff may also show that “an 5 official policymaker either delegated policymaking authority to a subordinate or ratified a 6 subordinate’s decision, approving the ‘decision and the basis for it.’” Fuller v. City of 7 Oakland, Cal, 47 F.3d 1522, 1534 (9th Cir. 1995). 8 1. Ratification – Claim 4 9 As to Robinson’s first theory of Monell liability, ratification occurs only where “a 10 deliberate choice to follow a course of action is made from among various alternatives by 11 the official or officials responsible for establishing a final policy with respect to the subject 12 matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). “If the 13 authorized policymakers approve a subordinate’s decision and the basis for it, their 14 ratification would be chargeable to the municipality.” City of St. Louis v. Praprotnik, 485 15 U.S. 112, 127 (1988). 16 Here, Robinson’s argument consists solely of his claim that “[r]atification and 17 deliberate indifference can be inferred by the SJPD’s exoneration and collective approval 18 of Dote and the other officers’ use of force in this incident, despite clear body camera 19 footage showing the unreasonableness of the force and Officer Dote’s contemporaneous 20 admission that Plaintiff was merely passively non-compliant.” Opp’n at 17 (internal 21 citations omitted). 22 There is precedent supporting the proposition that a supervisor’s failure to 23 investigate and discipline an officer may be probative of a pre-existing policy of 24 condoning police misconduct that then give rise to the constitutional violation. See Larez 25 v. City of Los Angeles, 946 F.2d 630, 647 (9th Cir. 1991). But a plaintiff still cannot 26 “establish ratification by deliberate indifference towards a single after-the-fact 27 investigation.” Cole v. City of Emeryville Police Dep’t, 387 F. Supp. 2d 1084, 1101 (N.D. 1 plaintiff can prove Monell liability simply on the basis of a defendant department’s post- 2 incident ratification through failure to discipline or take other action concerning the officer 3 directly involved.” Mueller v. Cruz, No. 13-cv-01274-CJC, 2015 WL 9455565, at *3 4 (C.D. Cal. Dec. 23, 2015). 5 Without evidentiary support, Robinson identifies Chief Edgardo Garcia as the final 6 policymaking official. See Opp’n at 5. Defendants assert that the City’s Charter vests 7 policymaking authority only with the City Manager. See Reply at 12. Robinson also fails 8 to provide evidence showing that the true final policymaking official was aware that one of 9 the defendant-officers used excessive force in arresting Robinson, and then explicitly 10 approved of that decision. 11 Additionally, Robinson does not provide evidence of “Dote’s contemporaneous 12 admission that Plaintiff was merely ‘passively non-compliant.” See Police Report at 23–25 13 (Exhibit omits pages 23 and 25). Robinson did not include his cited evidence with 14 Farzam’s declaration. See Farzam Decl., Ex. E (Robinson cites page 36, but the exhibit 15 contains only 35 out of 35 pages). Furthermore, a plaintiff must prove ratification through 16 incidents and general practices separate from the sole incident at issue. See Larez, 946 17 F.2d at 647 (“LAPD’s treatment of the Larezes’ complaint tended to corroborate testimony 18 about LAPD complaint investigations in general . . . pursuant to his two-year study of 19 LAPD complaints . . .”). Therefore, Robinson’s ratification claim is subject to summary 20 judgment. 21 2. Inadequate Training – Claim 5 22 On Robinson’s second theory of Monell liability, it is true that “[i]n limited 23 circumstances, a local government’s decision not to train certain employees about their 24 legal duty to avoid violating citizens’ rights may rise to the level of an official government 25 policy for purposes of § 1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011). 26 Inadequacy of training may “serve as the basis for § 1983 liability,” but only 27 when a plaintiff can prove “deliberate indifference”— a “stringent standard of fault, 1 action.” Board of Comm’rs of Bryan County. v. Brown, 520 U.S. 397, 410 (1997) 2 (requiring a pattern of similar constitutional violations under a failure-to-train theory). 3 This type of indifference may be shown when, for example, “policymakers are on actual or 4 constructive notice that a particular omission in their training program causes city 5 employees to violate citizens’ constitutional rights” but still choose to retain that program. 6 Connick, 563 U.S. 51, 61. “A pattern of similar constitutional violations by untrained 7 employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of 8 failure to train.” Id. (emphasis added) (quoting Bryan Cty, 520 U.S. at 409). 9 Under this theory, Robinson claims that a policy of inadequate training “can be 10 reasonably inferred from the evidence. Opp’n at 17. Robinson argues that the City “failed 11 to adequately train its police officers in (1) the circumstances that justify use of a 12 takedown; and (2) the proper techniques in employ[ing] a takedown so as to prevent 13 unnecessary and serious injury to subjects.” Id. As evidence, Robinson points to each 14 defendant officer’s deposition testimony, and “official Use of Force data and reports . . . 15 publicly available on SJPD’s website” to show that the City inadequately trains its 16 officers.3 Opp’n at 17–18. 17 a. Deposition Testimony 18 Officer Dote testified that “it is justifiable and reasonable” to take an 19 “argumentative or combative . . . or actively resisting” suspect into custody when “based 20 on the totality of circumstances [] immediate action is required.” Dote Depo. at 88:9–18. 21 Officers Petterson and Kulik both testified that at the time of their depositions, they could 22 not recall specific takedown maneuvers or techniques. See Petterson Depo at 98:20–23; 23 see also Kulik Depo at 15:1–18:4; 70:8–12. Officer Kulik could only name one takedown 24 maneuver when asked at her deposition. Id. 25 Both officers, however, testified consistently with the City’s training officer in that 26

27 3 The Court assumes that Robinson presents the Use of Force data and reports to support 1 the City trained them in takedowns and the proper use of force. See Dkt. No. 46-6 (“Sciba 2 Decl.”) ¶¶ 7–9. All officers testified that they received formal training regarding 3 takedowns and use of force. Dote Depo. at 22; Dkt. No. 48-1, Ex. A at 22; Dkt. No. 48-1, 4 Ex. B at 15. Additionally, an individual officer’s inability to recall the names of 5 maneuvers or to describe techniques on a particular occasion, does not prove that the City 6 failed to train all of its officers. Similarly, Officer Dote’s understanding of the appropriate 7 circumstances for conducting a takedown does not prove that the City failed to train, nor 8 does it prove the City’s deliberate indifference to widespread inadequate training. 9 Certainly, the defendant officers’ depositions do not establish a pattern of similar 10 constitutional violations by untrained employees. Connick, 563 U.S. 51, 61. 11 b. Use of Force Data and Reports 12 Robinson argues that publicly available “Use of Force data” and reports, when 13 viewed alongside the officers’ deposition testimony, show the City’s failure to adequately 14 train officers to perform takedowns in a way that avoids injury. Opp’n at 18. Police 15 Strategies, LLC compiled two reports (one in 2018 and one in 2020) using San Jose Police 16 Department use of force data. See Farzam Decl. Ex. I (“2018 Report”), Ex. J (“2020 17 Report”). According to Robinson, these summary reports show that SJPD officers are 18 more likely to inflict injury than other jurisdictions. Opp’n at 8. 19 First, Defendants object to the admissibility of these reports listing same grounds 20 previously discussed. Defendants argue these reports should also be inadmissible because 21 they lacked notice and an opportunity to conduct discovery on the reports’ authenticity and 22 reliability, citing Wasco Prod., 435 F.3d 989, 992 (9th Cir. 2006) in support. Dkt. No. 48- 23 1 Pritchard Decl. ¶4. Wasco, however, stands for the proposition that “summary judgment 24 is not a procedural second chance to flesh out inadequate pleadings.” 435 F.3d at 992. 25 Here, the issue involves discoverable and publicly available documents being used as 26 evidence in support of allegations made in the complaint, not a failure to allege 27 fundamental elements of a claim. Thus, Wasco is inapplicable and the Court overrules 1 Nevertheless, Robinson’s summary reports do not support his Monell claim. For 2 example, Robinson points to the 2018 Report to show that “SJPD’s overall suspect injury 3 rate (44%) was significantly greater than the interagency average (30%). Opp’n at 7; 2018 4 Report at 43. But in the next line, the 2018 Report states that “SJPD is doing better than 5 average in some risk areas. SJPD’s use of force rate per 1,000 population is half of the 6 interagency rate and SJPD officers are less likely to be involved in high Force Factor 7 incidents.” 2018 Report at 43. Additionally, Robinson points to the updated 2020 Report 8 to show that the subject injury rate increased and continued to be “above average for all 9 types of subject injuries except for canine bites and loss of consciousness.” Opp’n at 8; 10 2020 Report at 35. Yet, that same report also observes the following trends: “The average 11 annual number of force incidents per officer has fallen steadily from 2.9 to 2.3,” and “the 12 subject’s use of deadly force fell from 3.4% to 0.3%.” Id. at 21. Thus, the contents of 13 these reports do not conclusively establish that any use of force is the result of the City 14 inadequately training its officers. 15 The diverging trends in these reports undermines Robinson’s argument. There may 16 be various reasons for this shift in statistics, such as higher levels of crime in San Jose or a 17 larger pool of incidents reported than in the other unidentified jurisdictions. See Hinojosa 18 v. Butler, 547 F.3d 285, 296 (5th Cir. 2008) (that evidence of statistics can “beg more 19 questions than they answer,” making it unclear whether a fact finder should conclude that 20 most complaints actually involved an officer using excessive force, or just that “the 21 number of complaints filed [] is high relative to other metropolitan police departments”). 22 Thus, Robinson has no evidence of a “pattern of similar constitutional violations by 23 untrained employees” sufficient to place city policy makers on notice that “training is 24 deficient in a particular respect.” Connick, 563 U.S. at 61; see also Bryan Cnty., 520 U.S. 25 at 409. 26 Although Robinson provides evidence of SJPD using force in the past, his proffered 27 evidence does not show that that force was unconstitutional or excessive. See Johnson v. 1 unconstitutionality of these actions has not been proven . . . Nevertheless, some evidence 2 of constitutional violations is required to maintain the Monell claim in this case.”). And 3 aside from Sciba’s declaration presented by Defendants, Robinson’s record contains no 4 evidence about the contents of SJPD officer training. Thus, the Court concludes that 5 although there is evidence of use of force within San Jose Police Department, the evidence 6 does not meet the stringent legal standards required for claims under Monell. Therefore, 7 Robinson’s inadequate training claim is subject to summary judgment. 8 3. Unconstitutional Custom, Policy, or Practice – Claim 6 9 Finally, Robinson’s third theory of Monell liability is that the City maintains a 10 widespread policy or custom of using excessive force. Generally, a municipality cannot be 11 held liable under section 1983 “solely because it employs a tortfeasor.” Monell, 426 U.S. at 12 691. Rather, section 1983 liability may be imposed only when a municipal “policy” or 13 “custom” is the “moving force” behind a violation of federally protected rights. Id. at 694. 14 “Liability for custom may not be predicated on isolated or sporadic incidents; it must be 15 founded upon practices of sufficient duration, frequency and consistency that the conduct 16 has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 17 918 (9th Cir. 1996). 18 Robinson does not argue that there is an official municipal policy. He only argues 19 that there is a “widespread custom” and “practice” of excessive force. Opp’n at 17. As a 20 result, his third Monell theory is duplicative of his first two theories. Robinson argues that 21 the Use of Force data reports suggest a “continuing, widespread practice of excessive force 22 within the San Jose Police Department and a failure to adequately train officers to perform 23 ‘takedowns’ to avoid injury, especially when viewed alongside Officer Petterson and 24 Kulik’s deposition testimony.” Opp’n at 18. But Robinson provides no data on any 25 patterns of SJPD’s unconstitutional conduct, and Robinson’s counsel apparently conducted 26 no substantive discovery on this either. See Pritchard Decl. ¶¶ 2–6. As with the 27 ratification and inadequate training arguments, the evidence is insufficient to support a 1 Finally, Robinson requests a stay on the Court’s consideration of this motion for the 2 || Monell claims to allow him more time to obtain additional use-of-force data. Robinson’s 3 || request is DENIED. 4 In sum, because Robinson offers insufficient evidence in support of any of his three 5 || Monell theories, the Court GRANTS Defendants’ partial motion for summary judgment on 6 || municipal liability claims 4, 5, and 6. 7 || IV. CONCLUSION 8 Defendants’ partial motion for summary judgment is DENIED as to Robinson’s 9 || claims for excessive force against Officer Petterson and Officer Kulik. Partial summary 10 |} judgment is GRANTED as to claims 2 and 3 under § 1983 against the officer defendants, 11 |} and as to claims 4, 5, and 6 against the City of San Jose for insufficient evidence 3 12 || supporting Monell liability. These claims are DISMISSED and the City is therefore g 13 |} terminated as a defendant. 14 The following claims remain for trial: 42 U.S.C. § 1983 for excessive force in 3 15 || violation of the Fourth Amendment against individual officer defendants Dote, Petterson, Z 16 |} and Kulik. 5 17 IT IS SO ORDERED.

19 || Dated: September 16, 2021 Rh — 20 United States Magistrate Judge 21 22 23 24 25 26 27 28