Opinion
Civil No. 03-3114-CO.
September 14, 2004
FINDINGS AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against defendants City of Grants Pass and James Peil alleging that his arrest and detention violated his Fourth and Fourteenth Amendment rights. Plaintiff also alleges state law claims for unlawful imprisonment and battery. Plaintiff seeks economic, noneconomic, and punitive damages, costs, expert fees, and attorney's fees. Defendants move for summary judgment (#13). Plaintiff's response was due September 10. Plaintiff has not filed a response.
I. FACTS
Defendants submit the following unopposed statement of facts:1. Defendant Peil was a Grants Pass Department of Public Safety police officer at the time of the subject incident. (Peil Affidavit ¶ 2.)
2. Peil was on patrol Tuesday, October 8, 2002, at 1:13 a.m., when he was dispatched to the Holiday Inn Express in response to a report of a disturbance. En route, dispatch stated that Linda Benson was reporting that Robert Benson had assaulted her by grabbing her by the throat and throwing her on the bed. Peil was also advised that the male suspect had left the disturbance, was driving a purple Dodge 2500 Ram pickup with a Jeep top in the bed of the truck. Peil was advised too that the male driver had been drinking and was possibly intoxicated. (Peil Affidavit ¶ 3.)
3. En route to the disturbance, Peil passed a pickup matching the description just given. He turned around and within a very short distance initiated a stop to investigate the assault charge. (Peil Affidavit ¶ 4.)
4. Peil contacted the male driver, later identified as Robert M. Benson, the plaintiff. He began to tell the plaintiff the reason for stopping him when plaintiff interrupted and volunteered that he knew it was because he and his wife had argued and she had called the police. (Peil Affidavit ¶ 5.)
5. Plaintiff now has no complaint about being stopped by the law enforcement in response to a citizen's complaint concerning a domestic disturbance. (Plaintiff's Depo. at 66.)
6. For officer safety reasons, Peil asked plaintiff to exit the truck and walk to the sidewalk so he could talk to him regarding the assault. After reaching the sidewalk, they discussed the disturbance and plaintiff gave his account of the physical altercation between him and his wife, Linda Benson. (Peil Affidavit ¶ 6.)
7. As they spoke, Peil detected a moderate odor of alcohol on plaintiff's breath and noted that he was having a difficult time speaking, slurring his speech. Peil also observed watery, bloodshot eyes. (Peil Affidavit ¶ 7.) Plaintiff admits that his eyes were bloodshot. (Plaintiff's Depo. at 68.) He does not deny that his eyes were watery; he just does not remember now. (Id.)
8. When plaintiff was asked if he had consumed alcoholic beverages, he answered affirmatively. He consented to allow Peil to check his eyes to ensure he was not impaired to be operating a motor vehicle. Peil performed the Horizontal Gaze Nystagmus (HGN) test. Peil was trained in the administration of the HGN test and was qualified and certified to administer and evaluate the test. (Peil Affidavit ¶ 9.)
9. Plaintiff admits to having consumed 2½ alcoholic beverages earlier and informing the officer that he had used alcohol. (Plaintiff's Depo. at 48, 68.)
10. As Peil attempted to perform the HGN, plaintiff would not follow the officer's instructions. Peil had to stop and restart the test several times because he would not follow the stimuli. He would start to follow the stimuli and then stop and look straight ahead. Peil repeated the instructions to plaintiff several times. During the test, plaintiff would not focus on the point Peil wanted him to. Rather than focusing on the focal point, plaintiff would look above and below the focal point. When Peil reached maximum deviation, rather than keeping his eyes focused on the stimuli, plaintiff's eyes would reach the maximum deviation and then come in slightly so plaintiff would be using his peripheral vision. During the test plaintiff displayed an upper body, circular, swaying motion. (Peil Affidavit ¶ 9.)
11. Based on the officer's training and experience, the refusal or inability to follow the instructions of the HGN is an indication of impairment and/or an indication of the subject's intent to interfere with and invalidate the test because of possible impairment. (Peil Affidavit ¶ 10.)
12. After the HGN, Peil was concerned about plaintiff's impairment and asked if he would answer some questions and perform field sobriety tests (FST). Plaintiff agreed. (Peil Affidavit ¶ 11.)
13. Plaintiff admitted to taking Pamelor and Vicodin and also an antihistamine, Allegra. Based on Peil's law enforcement training and experience, he knew that there are certain prescription medications that can impair a driver, particularly in combination with alcohol. As plaintiff spoke, he had to lean against a guardrail, apparently to maintain his balance. (Peil Affidavit ¶ 12.)
14. Plaintiff repeatedly asked for water, stating that medications made his mouth dry. Peil knew from his police training and DUII enforcement experience that alcohol can cause the user to become dehydrated and thirsty. (Peil Affidavit ¶ 13.)
15. During the "walk and turn" test, plaintiff was unable to stay in the instruction position and stepped out several times. As Peil attempted to give him the instructions, plaintiff repeatedly interrupted him. (Peil Affidavit ¶ 14.) While trying to complete the "walk and turn" test the majority of plaintiff's steps were offline and not heel to toe. As plaintiff walked, he had his arms raised away from his sides slightly to help maintain his balance and his body swayed slightly. After taking the nine steps out, plaintiff stopped and asked how he was to turn around. He then turned and took nine steps back. The majority of the nine return steps were also offline and not heel to toe. Plaintiff continued to have his arms raised from his side and he displayed an upper body sway. (Peil Affidavit ¶ 14.)
16. Peil explained and demonstrated the "One Leg Stand" FST to plaintiff. When plaintiff began the test, he lifted his left foot off the ground and began counting. When he first began the test, Peil had to remind him to look down at his toe. When he looked down at his toe, plaintiff lost his balance and raised his arms away from his side. As plaintiff continued the test, he began hopping on his right foot and shifted to his right by approximately two feet while swinging his right arm widely about. He also had a difficult time counting, often repeating the same number over again. During the test, Peil observed plaintiff had eyelid tremors. (Peil Affidavit ¶ 15.)
17. Peil explained and demonstrated the "Modified Romberg (number count)" FST. When he began, plaintiff tilted his head back and began counting. During the test, plaintiff continued to have a difficult time counting, skipping several numbers. His speech also was slurred and he displayed an upper body sway. Peil again observed eyelid tremors as plaintiff performed the test. (Peil Affidavit ¶ 16.)
18. Plaintiff failed the FSTS. Peil had the required training necessary to administer and evaluate these FSTS. Based on his training and law enforcement experience, he knew certain prescription drugs (Pamelor, for example) caution against using alcohol as alcohol may intensify the effects of the medication and cause impairment. Peil also knew that intoxicants frequently cause the user to become hostile or combative and thus frequently play a role in domestic disturbances. (Peil Affidavit ¶ 17.)
19. Based on the totality of the circumstances, Peil arrested plaintiff for Driving Under the Influence of Intoxicants (DUII) and transported him to the Josephine County Jail for further investigation. (Peil Affidavit ¶ 18.)
20. Based on his training and experience and in looking at the totality of the circumstances, Peil subjectively believed plaintiff had committed the crime of DUII. Peil's basis for probable cause included: (1)Bloodshot and watery eyes; (2) odor of alcoholic beverage on breath coupled with admission to consumption of alcohol; (3) Speech difficulty; (4) Unusual conduct or demeanor; (5) Difficulty standing/maintaining his balance; (6) Muscular tremors (eyelid tremors); (7) Difficulty with divided attention; (8) Failure to follow HGN directions/instructions; (9) Failed "walk and turn" field sobriety test; (10) Failed "one leg stand" field sobriety test; (11) Failed "number count" field sobriety test. (Peil Affidavit ¶ 23.)
21. In loading plaintiff into the patrol car, Peil did not strike plaintiff. Plaintiff's hands were cuffed behind his back. Getting into the rear passenger seat was awkward for plaintiff and Peil placed a steadying hand on him as he would generally do in such circumstances. Plaintiff did not complain of injury due to this physical contact, nor did he appear to be injured. Peil's physical contact with him in helping him into the vehicle was no different than with any other arrestee under such circumstances.
(Peil Affidavit ¶ 19.)
22. Plaintiff's hands were pulled behind his back for cuffing. (Plaintiff's Depo. at 88.) He is not claiming injury to his elbows, wrists, arms or shoulders. (Plaintiff's Depo. at 127.)
23. Getting into the patrol car with his hands cuffed behind was "awkward". (Plaintiff's Depo. at 95-96.) Plaintiff testified that Peil "pushed" him into the car. (Plaintiff's Depo. at 96-98.)
24. Plaintiff has no knowledge as to whether Peil's method of assisting him into the vehicle was any different than that employed in assisting other arrestees. (Plaintiff's Depo. at 147.)
25. Plaintiff told Peil to be careful (in assisting) because of plaintiff's bad back. (Plaintiff's Depo. at 147.)
26. Plaintiff had to be careful getting into his own vehicle and has had discomfort even when carefully getting into his own vehicle. (Plaintiff's Depo. at 148.)
27. At the jail, plaintiff consented to provide a breath sample. He gave a breath sample into the Intoxilyzer 5000 indicating a blood alcohol content of .01%, which was inconsistent with the FSTs and Peil's observations of him. (Peil Affidavit ¶ 20.)
28. Because of these inconsistent results, Peil had Drug Recognition Expert (DRE) Scott Holsworth of the Oregon State Police respond and evaluate the plaintiff for intoxicants other than alcohol. Holsworth viewed plaintiff at about 2:50 a.m., which was more than 1½ hours after Peil's initial contact with the plaintiff. (Peil Affidavit ¶ 21.)
29. Holsworth had been trained and approved as a drug recognition expert (DRE) having successfully completed the required DRE training program. (Holsworth Declaration ¶ 2.)
30. Holsworth conducted a drug evaluation of the plaintiff. (Holsworth Declaration ¶ 5.) Based on the evaluation, it was Holsworth's expert opinion that plaintiff displayed substantial physical impairment on tests consistent with what Peil had previously observed. (Holsworth Declaration ¶ 6.) It was his expert opinion that Peil had probable cause to arrest plaintiff for DUII. (Holsworth Decl ¶¶ 6-7.)
31. Prior to October 8, 2002 Peil had received training and education in criminal investigation, interview and interrogation techniques and procedures, probable cause to arrest, use of force and other constitutional issues. This included training and education regarding the law as it relates to investigatory stops, authority to arrest, probable cause, the amount of force that can be used to make an arrest and the civil liability that can attach to both individual law enforcement officers and the law enforcement agency through arrest and use of force. (Peil Affidavit ¶ 24.)
32. Prior to October 8, 2002, Peil was well acquainted with the Penal Code portion of the Oregon Revised Statutes, particularly with regard to the elements of various crimes (including DUII), authority to arrest without a warrant, probable cause and use of force. (Peil Affidavit ¶ 25.)
33. Prior to October 8, 2002, Peil had been trained and educated regarding the policy of the Grants Pass Department of Public Safety (the Department) that it is the fundamental duty of every member of the Department to observe, respect and protect the constitutional rights of every person with whom we come into contact. (Peil Affidavit ¶ 26.)
34. On and before October 8, 2002, officers, including Officer Peil, were subject to supervision to assure the department policies and procedures were followed. There were at the time of the subject incident, policies and procedures prohibiting the commission of an unlawful seizure or detention. The policies and procedures prohibited violations of local, state or federal criminal and civil codes or ordinances by department officers. Policies and procedures prohibit officers from failing to protect prisoner's civil rights when such need is known or would have been known by a competent officer. (Peil Affidavit ¶ 27.)
35. Prior to October 8, 2002, Peil understood that violation of the policies of the department would be regarded as a serious matter that would be throughly investigated and that sanctions could and would be used to correct and prevent the reoccurrence of any violation of department policy up to and including termination of employment. (Peil Affidavit ¶ 28).
36. The Public Safety Director is accountable to the City's governing body, the Grants Pass City Council. (Landis Affidavit ¶ 3.)
37. There are certain standards of conduct that officers are expected to comply with. Violations would include: (a) Committing an unlawful search, seizure or detention of another person; (b) Mistreatment (physical or mental) upon any member of the public; and ©) Using excessive force to hold, effect an apprehension, arrest or detain any person. (Landis Affidavit ¶ 4).
38. On and prior to October 8, 2002, the department had a longstanding, well-established understood policy that it was a fundamental duty of every member of the department to observe, respect and protect the constitutional rights of every person with whom personnel come into contact. This policy prohibits retaliation for a citizen's exercise of his or her constitutional rights. (Landis Affidavit ¶ 5.)
39. It was and is the policy of the department to consider any violation of standards of conduct as described above as a serious matter requiring every supervisor or command officer to employ the most appropriate and effective means necessary to correct and prevent the re-occurrence of a violation of the policy. (Landis Affidavit ¶ 6.)
40. Department officers are informed as to how discipline will be used to enforce the department standards. It was and is made clear that the purpose of disciplinary action is to correct improper performance and serve as a deterrent. Discipline is applicable when the nature and results of the improper performance are too serious to correct with lesser means of management action. Solutions include training, discipline, reassignment, demotion or termination. (Landis Affidavit ¶ 7.)
41. Every citizen complaint is reviewed by the Public Safety Director, who then assigns it to the Internal Affairs Investigator for assignment. (Landis Affidavit ¶ 8.) The complaint is categorized under one of two headings:
a) The first category, "Procedural Query," involves all areas of operations and Public Safety personnel that do not outwardly involve an allegation of misconduct and would not likely result in possible disciplinary action being taken as a result of the investigation. A "Procedural Query" can be upgraded to an "Allegation of Misconduct," if the investigation warrants that action being taken.
b. The second category, "Allegations of Misconduct," involves all areas of operations and Public Safety personnel where the investigation may result in disciplinary action being taken against the identified employees. (Landis Affidavit ¶ 8.)
42. The subject October 8, 2002 incident is the sole basis for the allegation in paragraph 7 of the Complaint to the effect that the City had a pattern or practice of constitutional violations. (Plaintiff's Interrogatories No. 11.)
43. The subject October 8, 2002 incident is the sole basis for the allegation in paragraph 10 of the Complaint to the claim of inadequate supervision and training. (Plaintiff's Interrogatories No. 13.)
II. LEGAL STANDARDS
Pursuant to Rule 56©) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). In deciding a motion for summary judgment, the court must determine, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). The parties bear the burden of identifying the evidence that will facilitate the court's assessment. Id.
The moving party bears the initial burden of proof. See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1435 (9th Cir.), cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id. "[T]he moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995) (citation omitted).
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id.
If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
III. DISCUSSION
Defendants move for summary judgment arguing that:1) the warrantless arrest was justified based on probable cause;
2) defendant Peil was justified or privileged to use force in the form of handcuffing to effect the custodial arrest;
3) the force used was de minimis and did not rise to the level of a constitutional violation;
4) plaintiff does not have a valid Fourteenth Amendment claim;
5) defendant Peil is entitled to qualified immunity;
6) the City of grants Pass is not liable because there was no official policy or custom that was the driving force behind any constitutional violation;
7) punitive damages are not available against the City of Grants Pass;
8) defendant Peil, as an employee, is immune from liability under the Oregon tort Claims Act;
9) defendant Peil was statutorily justified or privileged to make the warrantless arrest for which there was probable cause;
10) the alleged battery is unsupported by the evidence and the minimal force used was privileged as a matter of law; and
11) the City and Peil are entitled to partial summary judgment on plaintiff's claims for punitive damages.
Section 1983 Municipal Liability
Municipalities are not liable under respondeat superior principles for constitutional violations of their employees, simply because of the employment relationship. Monell v. New York City Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 692-694 (1978). Municipal liability results "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. . . ." Id. at 694; Mateyko v. Felix, 924 F.2d 824, 826 (9th Cir.), cert. denied, 502 U.S. 814 (1991).
As a prerequisite to establishing municipal liability under section 1983, a plaintiff must prove one of three conditions.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citation omitted), cert. denied, 520 U.S. 1117 (1997). First, that a municipal employee committed the alleged constitutional violation pursuant to a formal governmental policy or a long standing practice or custom which constitutes the standard operating procedure of the municipal entity. Id. Any long standing practice or custom must be so persistent and widespread that it constitutes a permanent and well settled policy. Id. Such a long standing practice or custom cannot be based on isolated or sporadic incidents, but must be based on practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy. Id.
Second, "that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official government policy. Whether a particular official has final policy making authority is a question of state law." Id.
Finally, a plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it. Id. To establish ratification, the plaintiff must show that an official with responsibility for establishing policy with respect to the subject matter in question made "a deliberate choice to follow a course of action . . . from among various alternatives. . .".Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992) (citations omitted), cert. denied, 510 U.S. 932 (1993).
Plaintiff does not offer any evidence that defendant City of Grants Pass had any official policy of allowing violation of a citizen's constitutional rights. Defendant City of Grants Pass has offered evidence that it has policies in place to prevent such violations.
Plaintiff offers no evidence to establish that defendant City of Grants pass had a long standing practice or custom of allowing constitutional violations. Plaintiff offers no evidence to demonstrate practices of sufficient duration, frequency and consistency so that the conduct he complains about has become a traditional method of carrying out policy. Plaintiff has not offered any evidence to establish that defendant City of Grants Pass had a "custom" of allowing the complained of behavior.
Plaintiff offers no evidence that defendant Peil was an official with final policy-making authority for the City of Grants Pass. Defendant City of Grants Pass offers evidence that only the City Council has final policy making authority. Plaintiff offers no evidence to establish municipal liability based on a ratification theory.
Plaintiff has failed to present any evidence to establish municipal liability under § 1983. Therefore, defendant City of Grants Pass is entitled to summary judgment on plaintiff's § 1983 claims.
Fourteenth Amendment
Claims involving arrest without probable cause or a warrant are examined under Fourth Amendment standards. See Albright v. Oliver, 510 U.S. 266 (1994). When an excessive force claim arises in the context of an arrest, it is properly characterized as a claim invoking the protections of the Fourth Amendment.Graham v. Connor, 490 U.S. 386, 394 (1989). In this case, plaintiff is challenging his arrest, the use of force during his arrest, and his detainment. These claims are clearly governed by the Fourth Amendment, not the Fourteenth Amendment. Therefore, defendants are entitled to summary judgment on plaintiff's Fourteenth Amendment claims.
Fourth Amendment
Arrest
ORS 133.310 authorizes police officers to make a warrantless arrest when they have probable cause to believe that the person has committed a misdemeanor. ORS 813.010 provides:
. . . A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140, or 813.150; or
b) Is under the influence of intoxicating liquor, a controlled substance or inhalant; or
c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
This offense is a class A misdemeanor.
Oregon's Administrative Rule 257-025-0010 provides that:
The following acts, signs or symptoms are, typically, present in circumstances of intoxicant impairment. They are not field sobriety tests. A police officer may testify to their presence at any proceeding, criminal or civil, resulting from a DUII (driving under the influence of intoxicants) arrest. These acts, signs and symptoms include, but are not limited to:
(1) Difficulty in walking or unusual walking.
(2) Difficulty standing.
(3) Difficulty following directions.
(4) Order of alcoholic beverages on the breath.
(5) Flushed or pale appearance.
(6) Speech difficulties or unusual speech patterns.
(7) Disorderly or unusual conduct or demeanor.
(8) Lack of muscular coordination or muscular tremors.
(9) Evidence of mental disturbance.
(10) Visual disorders or difficulties.
(11) Sleepiness or drowsiness.
(12) Dizziness.
(13) Nausea or vomiting.
(14) Mood swings.
(15) Difficulty with divided attention.
(16) Bloodshot and/or watery and/or glassy eyes.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990),cert. denied, 501 U.S. 1207 (1991) (citation omitted). Whether a warrantless arrest is constitutionally valid depends upon whether, at the moment of arrest, the officer had probable cause to make the arrest. U.S. v. Martin, 509 F.2d 1211, 1213 (9th Cir. 1975), cert. denied, 421 U.S. 967 (1975) (citation omitted). The defense of probable cause negates a § 1983 claim based on an alleged false arrest. Howell v. Tanner, 650 F.2d 610 (5th Cir. 1981), reh. denied, 659 F.2d 1079, cert. denied, 456 U.S. 918 (1982). Where the facts are not in dispute, the question of whether there was probable cause to arrest in one of law for the court. See Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 1976).
Once probable cause has been established, the legality of the arrest is not affected by a subsequent dismissal or acquittal of the charges. Howell, 650 F.2d at 615. The officer is not required to conduct a trial before determining to make the arrest. Linn, 531 F.2d at 861. The Fourth Amendment requires a standard of reasonableness, not certainty, and a sufficient probability is the touchstone of reasonableness. Hill v. California, 401 U.S. 797 (1971).
Arresting officers have probable cause if, at the time of arrest, the facts and circumstances within their knowledge and of which they have reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.Martin, 509 F.2d at 1213. The court will consider all the facts known to the officers and consider all the inferences that could be drawn by them before arrest. Id. (citation omitted). A seizure of a person must be supported by probable cause particularized with respect to that person. U.S. v. Prieto-Villa, 910 F.2d 601, 604 (9th Cir. 1990).
Defendants have presented undisputed evidence that:
Defendant Peil stopped plaintiff's vehicle in the course of investigating a disturbance call. After plaintiff exited his vehicle, defendant Peil detected the odor of alcohol and plaintiff was slurring his speech. Plaintiff's eyes were bloodshot. Plaintiff admitted that he had consumed alcohol as well as other prescription drugs. Defendant Peil performed various tests on plaintiff which he did not perform correctly or failed. Plaintiff also had problems following instructions. Plaintiff was also swaying when performing some of the tests. Based on his experience and training, defendant Peil believed plaintiff had committed the crime of DUII and he arrested plaintiff.
Based on the totality of the circumstances and the facts known to defendant Peil at the time of the arrest, the court finds that defendant Peil had probable cause to arrest plaintiff for the crime of DUII and that defendant Peil's actions were reasonable under the circumstances. Therefore, defendants' are entitled to summary judgment on this claim.
Excessive Force
In deciding whether the force used by the officer was objectively reasonable under the Fourth Amendment, the court should balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (citations omitted). The right to make an arrest "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it."Id. The "reasonableness" of a particular application of force depends on the totality of the circumstances, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.
This inquiry must be "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," viewed objectively. Id. Accordingly, "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment".Id. (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.),cert. denied, 414 U.S. 1033 (1973)). The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-397.
Defendants have presented undisputed evidence that:
Defendant Peil arrested plaintiff and put him in handcuffs. Defendant Peil then placed plaintiff in the back of the patrol car by placing a steadying hand on him as he would generally do under the circumstances. Plaintiff did not complain any injury due to this physical contact and plaintiff did not appear to be injured. Plaintiff's elbows, wrists, arms, and shoulders were not injured when he was handcuffed. Based on the undisputed facts, the court finds that defendant Peil's use of force in placing the plaintiff in handcuffs and assisting him into the vehicle was reasonable. Therefore, defendants are entitled to summary judgment on plaintiff's claim. See Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912 (9th Cir. 2001).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that defendants' motion for summary judgment (#13) be granted and this case be dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.