Ross v. City of Toppenish

104 F. App'x 26

Opinions

MEMORANDUM

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Roy Ross appeals the district court’s summary judgment in favor of the defendants in his action alleging claims under 42 U.S.C. ,§ -1983 and state law. We y affirm the district court’s summary judgment in favor of the City of Toppenish. Ross failed to make any showing that the City or its police department had a policy or custom that led to his injuries, see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and § 1983 liability may not be predicated upon respondeat superior. Id. at 691, 98 S.Ct. 2018.

We affirm in part and reverse in part the district court’s summary judgment in favor of police officers Adam Diaz and Jared Quinlan and their wives and marital communities.¹ Viewing the evidence in the light most favorable to Ross, there is no disputed issue of material fact from which a jury could find that the use of force by Diaz and Quinlan was excessive up to the time Ross was handcuffed; thereafter, there is such a dispute, and as to those alleged events the officers are not, on summary judgment, entitled to qualified immunity.

Ross alleges in his declaration that throughout his confrontation with the officers he was not combative, and that before he was handcuffed he was punched in the face, kneed in the chest and thrown to the ground. Ross testified in his deposition, however, that before he was handcuffed he “might” have approached the officers yelling and waving his arms, and that he “might” have made a fist at them. He also admitted that he reached for and touched Diaz’s gun belt, and that he grabbed onto Diaz’s wrists. Because Ross cannot create a genuine issue of disputed material fact by contradicting his own previous testimony, Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991), we reject the portion of his declaration that contradicts his deposition, credit his deposition testimony for purposes of this appeal, and conclude there is no genuine issue of material fact in dispute from which a jury could find that the officers used excessive force up to the point Ross was handcuffed. This includes the conduct by which Ross alleges he was punched in the face, kneed in the chest, taken down to the ground and handcuffed. Because the officers’ use of force up to that point was not excessive as a matter of law, no constitutional violation occurred, and as to those events the district court’s summary judgment determining that Diaz and Quinlan are entitled to summary judgment is affirmed.

We reverse, however, the portion of the district court’s summary judgment by which the court determined that the officers were entitled to qualified immunity for their alleged conduct after Ross was handcuffed.² There are genuine issues of material fact as to whether, following the handcuffing, the officers used excessive force and, if so, whether the officers are entitled to qualified immunity.

In his deposition, Ross testified that after he reached for Diaz’s gun belt and touched it, and while he was on his back with Diaz “astraddle” him, he said (apparently to himself) “Oh, and I just relaxed. I said let them do what they’re going to do.” At that point he was handcuffed. Officer Diaz in his October 4, 2002 declaration tends to corroborate this. Diaz stated that when Ross began to fall to the ground he grabbed at both officers’ gun belts, and it was then that Diaz “delivered a single knee strike to Roy Ross’s torso. This strike was intended to knock the breath out of him, so he would stop grabbing at us and submit to handcuffing and it had the desired effect.” In a later declaration dated December 4, 2002, Diaz stated that Ross continued to struggle while he was on the ground “as we handcuffed him while he was face down.” Diaz also stated in that declaration that “Mr. Ross actively struggled against us while we subdued and handcuffed him.” The officers denied picking Ross up after he was handcuffed, throwing him to the ground and “intentionally” pushing his face in the gravel.

Considering all of this evidence, we conclude that there are triable issues of fact as to whether Ross continued to be combative after he was handcuffed, exactly when the handcuffing occurred, and what the officers did after Ross was handcuffed. How these disputed facts are resolved will determine the issues of whether the officers’ actions after Ross was handcuffed constituted excessive force in violation of the Fourth Amendment, and whether the officers are entitled to qualified immunity for such conduct.

In a § 1983 action against a police officer predicated upon allegations of excessive force in violation of the Fourth Amendment, an officer who commits the alleged constitutional violation is nonetheless entitled to qualified immunity if it was not clearly established at the time of the officer’s conduct that such conduct would violate the Fourth Amendment. Saucier v. Katz, 533 U.S. 194, 201, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “If the officer’s mistake as to what the law requires is reasonable,” he is entitled to qualified immunity. Id. at 205, 121 S.Ct. 2151.

If, following Ross’s handcuffing, the officers did the things Ross says they did, a trier of fact could find that the officers used excessive force during the course of his arrest in violation of the Fourth Amendment. Moreover, if Ross was compliant after he was handcuffed, and if the officers nonetheless picked him up, threw him to the ground and rubbed his face in the gravel, the officers would not be entitled to qualified immunity. No reasonable officer could have thought in October 1999, when these events occurred, that he was entitled to use such gratuitous force. That a police officer is not entitled to use such force against a handcuffed, secured and compliant citizen was clearly established “years before 1999[.]” Jones v. Buchanan, 325 F.3d 520, 534 (4th Cir.2003).

Each party will bear his and its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . To the extent we reverse the district court's summary judgment, we leave to the district court's initial determination the question whether the officers' wives and marital communities are proper defendants in this action.

2 . Upon dismissing Ross's federal claims, the district court declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed those claims without prejudice. Because we now reverse in part the district court's summary judgment, the district court may decide to reinstate the dismissed state law claims.