Strong v. City of Vallejo

Opinion

----oo0oo---- ROBERT STRONG, No. 2:18-cv-01246 WBS AC Plaintiff, v. ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT ANDREW BIDOU, and DOE VALLEJO POLICE OFFICERS 1-25, Defendants. ----oo0oo---- Plaintiff Robert Strong filed this action against defendants City of Vallejo, Jarrett Tonn, Andrew Bidou, and Doe police officers 1 through 25, alleging violations of federal and state law arising from defendant Tonn’s arrest of plaintiff. The Complaint contains claims for: (1) excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983; (2) false arrest in violation of the Fourth Amendment, 42 U.S.C. § 1983 (3) negligence; (4) battery; (5) intentional infliction of emotional distress; (6) false imprisonment; and (7) violation of the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1. The Complaint also asserted Monell1 claims against the City of Vallejo under Claims One and Two. Before the court are the parties’ cross-motions for summary judgment. (Docket Nos. 14 & 15.) In his first opposition to defendants’ motion for summary judgment, plaintiff dismissed his false arrest claim (Claim Two). (Pl.’s Initial Opp’n at 10 (Docket No. 20).) Because plaintiff initially failed to respond to defendants’ motion to dismiss the state law claims (Claims Three through Seven), the court requested supplemental briefing to clarify plaintiff’s position with respect to those claims. (Docket No. 29.) In his supplemental opposition, plaintiff pursues only “three state law claims”: claims for negligence (Claim Three), battery (Claim Four), and violation of the Tom Bane Act (Claim Seven). (Pl.’s Supp. Opp’n at 2 (Docket No. 32).) The court will therefore grant defendants’ motion for summary judgment as to Claims Two, Five, and Six. Further, although the court expressly asked plaintiff to clarify his position as to his Monell claim under Claim Two, plaintiff chose not to do so. (See Order (Docket No. 29); Pl.’s Supp. Opp’n.) Given the two opportunities to respond and the court’s specific request, plaintiff’s silence will be construed as a concession to defendants’ motion on that claim. (See Defs.’ Mot. Summ. J. at 14-15 (Docket No. 14); see generally Pl.’s Initial Opp’n; Pl.’s Supp. Opp’n; see also Pl.’s Reply (Docket 1 Monell v. Department of Social Services, 436 U.S. 658 No. 23).) Accordingly, the remaining claims at issue are plaintiff’s federal claim for excessive force under 42 U.S.C. § 1983 (Claim One), and his state law claims for negligence (Claim Three), battery (Claim Four), and violation of the Tom Bane Act (Claim Seven). There are genuine disputes of material fact here that preclude summary judgment on plaintiff’s claim for excessive force. The parties strongly disagree as to whether Tonn used a carotid hold or a control hold to arrest plaintiff and neither video recording resolves that dispute. Thus, because there is a genuine issue of fact as to whether the hold Tonn employed was one that constitutes deadly force, the court cannot conclude as a matter of law whether that force employed was reasonable. Summary judgment is therefore inappropriate for either side on Claim One. Defendants contend that Tonn is entitled to qualified immunity. “Qualified immunity protects government officers ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013). A defendant is entitled to qualified immunity if either (1) plaintiff has not “alleged” or “shown” facts that would make out a constitutional violation or (2) the constitutional right allegedly violated was not “‘clearly established’ at the time of defendant’s alleged misconduct.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453–54 (9th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009)). For the same reason that the court cannot grant summary judgment on the merits of Claim One, given the facts in dispute, the court cannot conclude as a matter of law that Tonn did not violate plaintiff’s Fourth Amendment rights or that the constitutional right to be free from the force used was not clearly established. Further, the parties agree that plaintiff’s claims for negligence (Claim Three) and battery (Claim Four) also turn on whether the force applied was reasonable. (See Pl.’s Supp. Opp’n at 1; Defs.’ Supp. Reply at 4, 6 (Docket No. 33).) The dispute as to the hold employed during plaintiff’s arrest therefore also precludes summary judgment as to those claims. The court therefore will deny summary judgment on Claims Three and Four. Finally, the parties disagree as to the elements of a Tom Bane Act claim. Plaintiff contends that the elements of the excessive force claim under Section 52.1 are the same as under Section 1983. (Pl.’s Supp. Opp’n at 1; see Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014)). Defendants, on the other hand, rely on Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018), for the proposition that, in addition to proving a constitutional violation, plaintiff must prove that Tonn had the “specific intent” to violate plaintiff’s rights. (Defs.’ Mot. Summ J. at 17-18.) The court agrees with defendants. The Ninth Circuit in Reese explicitly held that specific intent to violate the plaintiff’s rights is a requirement of a Tom Bane Act claim. 888 F.3d at 1043 (“[T]he Bane Act requires . . . a specific intent to violate the arrestee’s right to freedom from unreasonable seizure.”). Moreover, the Reese court clarified that, although the Ninth Circuit had previously found that only a constitutional violation was needed to succeed on a Tom Bane Act claim, those cases “did not address whether the [] Act required some showing of intent in addition to showing the constitutional violation.” Id. at 1044 (citing Chaudhry, 751 F.3d at 1105; Cameron v. Craig, 713 F. 3d 1012, 1022 (9th Cir. 2013)). Thus, to succeed on this claim, plaintiff must show (1) that defendant Tonn violated his constitutional rights using excessive force, and (2) that Tonn had a specific intent to violate those rights. See Villanueva v. California, No. 8:17-CV- 01302 JLS KES, 2019 WL 1581392, at *15 (C.D. Cal. Jan. 31, 2019). However, the law does not require that intent be proven by direct evidence; intent, like other states of mind, must typically be inferred from evidence of what the defendant did, the surrounding circumstances, and all the other evidence in the case. Here, if plaintiff’s version of the facts is accepted, a reasonable jury could find from the nature and degree of the force used that defendant Tonn acted with the intent to violate plaintiff’s right to be free from unreasonable force. The court will therefore deny summary judgment to either side on Claim Seven. IT IS THEREFORE ORDERED, that defendants’ motion for summary judgment be, and the same hereby is, GRANTED with respect to Claim One as against the City of Vallejo and Claims Two, Five, and Six of the Complaint as against all defendants. IT IS FURTHER ORDERED, that plaintiff and defendants’ motions for summary judgment be, and the same hereby are, DENIED WAU 2.40 UV VLEET VE DDN MMU Or POI feeiey VM VIN

with respect to Claim One as against defendant Tonn and Claims Three, Four, and Seven. Dated: July 22, 2020 _aitthom th. ib. be— WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE