SUMMARY JUDGMENT (granting Docket # 49)

LARSON, Cheif United States Magistrate Judge.West Page 1021

Introduction

Plaintiff Cammerin Boyd filed suit on July 21, 2003, against Defendants Oakland Police Officers Sena and McQuinn, the Oakland Police Department, and the City of Oakland, regarding an alleged incident on July 23, 2002. All parties consented to this Court's jurisdiction, as provided by 28 U.S.C. § 636©) and Civil Local Rule 73. Plaintiff was killed in an incident with the San Francisco Police Department on May 5, 2004. Plaintiff's counsel Marylon M. Boyd is also his mother. After Plaintiff's untimely death, Ms. Boyd was appointed administrator of his estate. Cammerin Boyd remains the named plaintiff. Before the Court is the Defendants' motion for summary judgment. The Court finds that Plaintiff fails to offer sufficient admissible evidence to defeat summary judgment, and grants Defendants' motion.

Factual Background

Procedural Background

Plaintiff filed suit on July 21, 2003. This Court construes Plaintiff's Complaint to allege seven causes of action, including: (1) violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, (2) violation of civil rights under 42 U.S.C. Section 1983, including a Monell claim against the Department and City, (3) conspiracy, (4) negligence, (5) assault and battery, (6) intentional and negligent infliction of emotional distress, (7) false arrest and false imprisonment.

Defendants City of Oakland, Oakland Police Department, and Officers Sena and McQuinn, filed their Answer to Plaintiff's Complaint on March 11, 2004, denying all of Plaintiff's claims and asserting affirmative defenses.

The Court has given Plaintiff ample opportunity to plead the case. At Plaintiff's request, the Court twice continued the matter in order to allow Plaintiff more time to conduct discovery. The Court ordered a third continuance after the death of the Plaintiff, Mr. Boyd. On August 12, 2004, the Court denied Defendants' motion to quash Plaintiff's discovery request regarding the observations of a witness to the incident in San Francisco on May 5, 2004, in which the Plaintiff was shot and killed. Although a conspiracy between the Oakland and San Francisco Police Departments was not plead in the Plaintiff's Complaint, the Court allowed Plaintiff's discovery request. On the other hand, Plaintiff has repeatedly failed to produce initial disclosures. On March 25, 2005, the Court ordered Plaintiff to do so or face sanctions.

On February 4, 2006, Defendants moved for summary judgment, or, in the alternative, partial summary judgment. In an untimely memorandum of points and authorities in opposition to summary judgment, Plaintiff asserted that summary judgment is not appropriate because triable issues of material fact exist in this case. Plaintiff's evidentiary support for this assertion is discussed below. A hearing on Defendant's motion for summary judgment was held on March 22, 2006.

The Court grants the Defendants' motion for summary judgment against all of the Plaintiff's claims, as discussed below.

ANALYSIS

The plaintiff bears the burden of proof on all of the essential elements of his or her claim. Southern Cal. Gas Co. v. Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). A trial court can only consider admissible evidence in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002). "Authentication is a `condition precedent to admissibility' . . . We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment." Id. (citing to FRE 901(a)).

Federal Rule of Civil Procedure 56(e) requires that affidavits submitted in support of a motion for summary judgment must: (1) be made on the personal knowledge of an affiant who is competent to testify to the matters stated therein, (2) must state facts that would be admissible in evidence, and (3) if the affidavit refers to any document or item, a sworn or certified copy of that document or item must be attached to the affidavit. Fed.R.Civ.P. 56(e); Orr, 285 F.3d at 774 n. 9; William W. Schwarzer et al., Cal. Prac. Guide: Fed. Civ. Pro. Before Trial (2004) § 14:161. This rule applies to declarations as well as affidavits. Schwarzer, supra, at § 14:161 (citing 28 U.S.C. § 1746, "[d]eclarations made under penalty of perjury have the same effect as an affidavit").

A declarant must show personal knowledge and competency to testify by the facts stated. Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995) (declarations on information and belief are entitled to no weight where declarant lacks personal knowledge). The matters must be known to the declarant personally, as distinguished from matters of opinion or hearsay. Id. A declarant's mere assertions that he or she possesses personal knowledge and competency to testify are not sufficient. Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999 (9th Cir. 1990). A declarant must show personal knowledge and competency "affirmatively," under Rule 56(e), for example, by "the nature of the declarant's position and nature of participation in matter." Id.

A court must determine admissibility by applying the Federal Rules of Evidence. Orr v. Bank of America, 285 F.3d 764, 778 (9th Cir. 2002) (unauthenticated documents cannot be considered).

Plaintiff's primary evidence that the Defendant Officers violated Mr. Boyd's rights is a declaration by Marylon M. Boyd, who is Cammerin Boyd's attorney, mother and administrator of his estate. See Plaintiff's Memorandum of Points and Authorities in Opposition to Summary Judgment (hereafter "Pl. Opp. to SJ" 6: 21-26, 7: 1-5; See also Declaration of Marylon M. Boyd in Opposition to Defendant's Motion for Summary Judgment (hereafter "Boyd Declaration"). The Boyd Declaration is attached to Plaintiff's untimely memorandum in opposition to summary judgment.

A. Paragraph one is inadmissible because it is merely Plaintiff's counsel's assertion of personal knowledge and competency to testify, which are insufficient to render the declaration admissible.

Paragraph one of the Boyd Declaration is a statement by Ms. Boyd that she is an attorney and has personal knowledge of the matters stated therein, and if called upon, can testify competently to all matters attested to. Boyd Declaration ¶ 1, at 1: 18-21. The Defendants do not object to this paragraph. See Defendants' Objections to Plaintiff's Evidence re: Motion for Summary Judgment (hereafter "Def. Objections").

A declarant must show personal knowledge and competency to testify by the facts stated. Bank Melli, 58 F.3d at 1412. The matters must be known to the declarant personally, as distinguished from matters of opinion or hearsay. Id. Here, Ms. Boyd in paragraph one of her declaration does not show personal knowledge or competency to testify. Ms. Boyd's mere assertions of personal knowledge and competency to testify are insufficient to establish these assertions to be true. Thus she fails to demonstrate that either paragraph one or the contents of the Boyd Declaration overall are admissible.

B. Paragraph two is inadmissible, as Ms. Boyd lacks personal knowledge and is not competent to testify to the matters therein.

Paragraph two of the Boyd Declaration states:

The only evidence Defendants presented in support of their motion is the declaration of their Counsel, Maria Bee, stating that Plaintiff did not produce witnesses Lorenzo Walker, Antonio Avales, Brandon Jackson, and Kellie Blumin for deposition. Kellie Blumin is with the Public Defender's office and Defendant did not notice her deposition nor subpoena her for deposition. She was not present at the scene of the incident. She is knowledgeable about the number of prior complaints of unreasonable force and other complaints against defendants McQuinn and Sena. With respect to other witnesses, I have appeared in this action informing the Court of the difficulty of producing witnesses to testify against police officers because of their understandable fear of retaliation from the police, particularly in the neighborhood where the incident occurred.

Boyd Declaration ¶ 2, at 1: 21-26, 2: 1-5.

Defendants object to the declaration as hearsay under Federal Rules of Evidence (hereafter "FRE") 801 and 802, regarding the portion of paragraph two discussing Kellie Blumin — where she works, that she was not at the scene, and what she allegedly knows about prior complaints against Defendant Officers. Def. Objections at 2: 8-9.

The objected-to portion of paragraph two is not based on the personal knowledge of Ms. Boyd, thus she is not competent to testify to it. Rather, it is hearsay at best. As no hearsay exception applies here, these statements in paragraph two are not admissible as evidence in support of Plaintiff's claims.

C. Paragraphs three and four are inadmissible. They present the hearsay statements of four witnesses, as relayed by Ms. Boyd, who did not witness the events and who spoke with the witnesses well after the events ended which renders this information outside the scope of Ms. Boyd's personal knowledge and, therefore, her competency to testify.

Paragraphs three and four of the Boyd Declaration offer Ms. Boyd's account of the statements of four individuals who Ms. Boyd asserts were witnesses to the Defendant Officers' alleged misconduct, and whom Ms. Boyd later located and interviewed. She claims they are afraid to come forward as witnesses for fear of retaliation by the police. Boyd Declaration ¶ 3-4, at 2: 6-25, 3: 1-5.

Defendants object to paragraph 3, lines 2:6-16 as hearsay under FRE 801 and 802, and Plaintiff's statement that she interviewed the four witnesses named therein "within minutes of the incident occurring," as, by her own admission, she did not arrive at the scene until 5:15 p.m. Def. Objections at 12-16. Defendants also object on the grounds that Ms. Boyd has no personal knowledge of the time that the incident occurred. Id. at 2: 16.

Paragraphs three and four are based not on the personal knowledge of Ms. Boyd, but on the hearsay statements of the four alleged witnesses. Ms. Boyd is not competent to testify as to this evidence. There is no basis for a hearsay exception here, so these statements are not admissible. Therefore, paragraphs three and four are not admissible as evidence in support of the Plaintiff's claims.

D. Paragraph five of the Boyd Declaration, containing Cammerin Boyd's statements to his mother/attorney, is inadmissible hearsay under FRE 802, and no hearsay exceptions apply to render it otherwise admissible.

"The Confrontation Clause limits the conditions under which hearsay evidence can be admitted, but it does not bar such evidence completely." People of Territory of Guam v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993). Hearsay evidence which is sufficiently reliable, either because it falls within a `firmly rooted hearsay exception' or is supported by `particularized guarantees of trustworthiness,' does not violate the Confrontation Clause." Id. (quoting Idaho v. Wright, 497 U.S. 805, 816 (1990)).

1. Cammerin Boyd's statements to his mother/attorney are not admissible as an excited utterance because the lengthy, logical, and coherent nature of the statements tends to show that his reflective faculties were not dominated by nervous excitement — which renders the statements inadmissible as lacking the spontaneity required of an excited utterance.

FRE 803(2) provides that an excited utterance is not excluded by the hearsay rule and is defined as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Fed.R.Evid. 803(2). The elements required to establish an excited utterance include: (1) an occurrence or event sufficiently startling to render normal reflective thought processes inoperative, (2) a statement that is a spontaneous reaction to the occurrence or event and not the result of reflective thought, which (3) relates to the occurrence or event. U.S. v. Alarcon-Simi, 300 F.3d 1172, 1175 (9th Cir. 2002) (citing U.S. v. McLennan, 563 F.2d 943, 948 (9th Cir. 1977)); FRE 803(2). "The excited utterance exception is `firmly rooted' . . . ." Ignacio, 10 F.3d at 615.

The Ninth Circuit stated the principle behind the admission of a spontaneous statement as follows: "[U]nder certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so the utterance which then occurs is . . . spontaneous and sincere. . . ." U.S. v. Alarcon-Simi, supra, at p. 1175 (quoting Wigmore, Evidence § 1745, at 193 (Chadbourn rev. 1976)); See also U.S. v. Napier, 518 F.2d 316, 318 (9th Cir. 1975) (quoting 6 Wigmore, Evidence § 1747, at 135 (3d ed. 1940)).

The U.S. Supreme Court has held that an excited utterance is reliable and thus admissible when it "has been offered in a moment of excitement — without the opportunity to reflect on the consequences of one's exclamation." White v. Illinois, 502 U.S. 346, 355-56 (1992). However, "[m]erely being `upset' clearly does not meet the standard for admissibility under Evid.R. 803(2) because it does not show that [the declarant's] statements were not the result of reflective thought." State v. Taylor, 66 Ohio St.3d 295, 303 (1993).

"When a hearsay statement is offered under this exception, the trial court must make a preliminary fact determination that the declarant was so excited or distraught at the moment of the utterance that he did not reflect (or have an opportunity to reflect) on what he was saying." U.S. v. McLennan, supra, at p. 948.

To determine whether a declarant was under the stress of excitement when he made the statement, courts consider not only the lapse of time between the event and the statement (whether the declarant had time to think about his actions), but also the apparent state of mind of the declarant, the nature of the startling event, the declarant's age (child victims of sexual abuse are generally allowed more time between the event and the statement), and whether the declarant had a motive to fabricate. See People of Territory of Guam v. Ignacio, supra, at pp. 614-15; U.S. v. Sherlock, 962 F.2d 1349, 1365 (9th Cir. 1989); U.S. v. Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995).

Courts in Hawaii, Utah, and Idaho have held that "lengthy, narrative statements are not admissible as excited utterances." State v. Machado, 127 P.3d 941, 947-48 (2006); West Valley City v. Hutto, 5 P.3d 1, 4 (Utah Ct.App. 2000); State v. Hansen, 133 Idaho 323, 326 (Idaho Ct.App. 1999)).

Machado involved an incident of domestic violence in which the victim's live-in boyfriend allegedly grabbed, choked, stepped on and threatened to kill the victim, brandishing a knife at her. Machado, 127 P.3d at 943-44. The victim screamed, struggled and managed to escape the apartment. Id. A neighbor heard the commotion and called 911. Id. at 943. The victim also called 911 and the police arrived within ten minutes. Id. at 944. The victim spoke with a police officer, to whom she detailed the struggle and death threats. Id. 943. At trial, she recanted, leaving the prosecution to put the police officer on the stand to testify as to her statements regarding the attack and threats to kill her. Id. at 946-47.

The officer testified to the victim's statement as follows:

Approximately at 10:00 p.m., [the defendant] arrived home and [the victim] attempted to lock him out of the residence. He then attempted to gain entry by removing a screen on the kitchen window. Seeing this, she allowed him to enter the residence. Once within the kitchen area, [the defendant] grabbed her from behind, holding her in a — what she said was a choke hold with his right arm. There was a struggle, he held her with her — okay, after he got her in a choke hold, he stated — her words were that he stated that, "Don't fuck with me." There was a struggle. He grabbed her with his left hand and pulled on her hair, and wrestled her to the ground. While they were struggling on the ground, she had bit him on the left — on his left arm. After they were on the ground, she somehow got out of his hold. He then stepped on her head. And he reached for a steak knife within the dish rack there on the counter. After obtaining the steak knife, he stated that "Don't fuck with me, I'll kill you." He then placed the knife on the dish rack. She then kicked him in the groin area, at which time he released her. She stood up, attempting to leave the kitchen area. He grabbed her from behind, spun her around, and grabbed her by the throat. There was a slight struggle. She got up. She got loose from that and contacted the police.

Hawaii's Intermediate Court of Appeals, which first reviewed the case, affirmed the trial court, holding that the statements were admissible as an excited utterance, based on the neighbor's testimony as to the occurrence of the startling event, the police officer's testimony that the victim was "pretty hysterical or pretty emotional" when he took her statements, and the court's assessment that her statements "related to" the startling event. Id. at 945.

In its review of the case, the Hawaii Supreme Court noted that "[o]ther courts have held that lengthy, narrative statements are not admissible as excited utterances" and quoted from a Utah case as follows.

[I]n West Valley City v. Hutto, 5 P.3d 1, 4 (Utah Ct.App. 2000), the Utah Court of Appeals distinguished between an excited utterance and the ongoing discourse of an excited individual, holding that it was error to allow a police officer to recount her entire 30 to 45 minute interview with the alleged domestic abuse victim, rather than limiting admission of the officer's testimony to particularized utterances of the victim. In reaching this conclusion, that court noted that the excited utterance exception is limited to "truly spontaneous outbursts."

The court in West Valley City v. Hutto, 5 P.3d 1, 4 (Utah Ct.App. 2000), supra, also stated that "[t]he classic example of an excited utterance is a witness's exact recollection of the declarant's spontaneous `sound bite' — an uncoached blurting out — made while the declarant observed the exciting event or closely thereafter." Hutto, 5 P.3d at 4. Examples given included "You're a dead man," "Daddy shot Mommy. Mommy is dead," "Oh my god," "It won't turn, Mom" (referring to a steering wheel), "Oh, God . . . It wasn't your fault," and "That son-of-a-bitch cut me." Id. (citations omitted). Id.

The court in Hutto "emphasized that not every statement made by an excited person is an excited utterance for purposes of the hearsay rule." Id. at 6-7. "Emotionalism in recounting a distressing event hours, days, or even years later is not uncommon, but it does not make the recounting an excited utterance." Id. at 7 n. 8.

The Hawaii Supreme Court in Machado also quoted from an Idaho case as follows.

In another domestic dispute case, State v. Hansen, 133 Idaho 323 (Idaho Ct.App. 1999), the Idaho Court of Appeal found that the trial court had erred in admitting a victim's statements to a police officer which "were not an exclamation or burst of words in sudden reaction to a startling occurrence[,] but a lengthy recitation of the circumstances surrounding the fight [with her boyfriend] and a request to press charges."

In Hansen, the declarant made a lengthy statement to police ten minutes after an alleged incident of domestic abuse by her boyfriend. State v. Hansen, 133 Idaho 323, 326 (Idaho Ct.App. 1999). The declarant described herself to the police detective to whom she made the statement as being "madder than she had ever been." Id. at 327. The Idaho Court of Appeal found that the declarant's "anger . . . could have provided a motivation to fabricate or exaggerate in [the declarant's] version of events." Id. at 326. It held that "[t]he ten-minute interval between the conclusion of [the declarant's] fight with [her boyfriend] and her arrival at the police station was sufficient time for reflective thought and fabrication." Id. The court in Hansen further held that "[the declarant's] protracted narrative to [the police officer] . . . cannot be viewed as the sort of spontaneous reaction that carries indicia of reliability contemplated by" the excited utterance rule. Id.

The court in Machado applied the reasoning employed by the Utah and Idaho courts to find that the victim's extensive statement, relayed through the police officer, was not a "`truly spontaneous outburst' . . . [r]ather, it was a specific and inclusive rendition of the circumstances leading up to the incident and the incident itself." Id. The court in Machado compared the victim's extensive recital with the brief statements in State v. Moore, 82 Hawai'i 202 (1996). In Moore, the court held that a wife's statements to police implicating her husband were admissible as an excited utterance. Machado, 127 P.3d at 948. The wife in Moore had been shot by her husband, who pulled up behind a police car with his injured wife as his passenger. Id. While awaiting an ambulance, the injured wife said, "He shot me," "He's a good man[,] I told him I was leaving him," "He's distraught," and "Keep him away from me . . . get him away from me." Id.

The court in Machado noted that the declarant's statements in Moore were "brief and disjointed remarks" that "lacked coherence." Id. It further noted that the declarant in Moore had been shot five times, her assailant was still nearby, she had a collapsed lung, was perspiring and her voice was barely audible. Id. By comparison, the statements from the victim in Machado "involved a lengthy narrative of the events of an entire evening" which the court found to be "detailed, logical, and coherent." The court in Machado concluded that the nature and the circumstances of the statements made by the victim there did not justify the conclusion that she was still "under the stress of excitement." Id. Thus, it held that the trial court erred in admitting the victim's statement as an excited utterance. Id.

In the instant case, paragraph five of the Boyd Declaration offers Ms. Boyd's account of statements made to her via telephone by Cammerin Boyd, as follows.

The incident began on July 23, 2002, at or about 3:50 to 4:00 p.m. on Birch Street at 102nd Street in Oakland. At about 4:45 I received a telephone call from my son Cammerin Boyd. He was extremely upset. He told me that Officers Sena and McQuinn without any justification or basis for stopping him, nearly crashed into his car by driving at a high rate of speed and turning directly towards him blocking him and forcing him to stop.

He told me that Sena and McQuinn jumped out of their car and ran up to his car with their guns drawn telling him to "get the fuck out the car now". As he opened the door one of the officers grabbed his arm and pulled him out of the car. Both of them were screaming profanities at him and telling him they were going to blow his "fucking brains out". He said the officers called him a "nigger" and repeatedly asked him if he had any drugs on him.

Even though he told the officers over and over that he did not have any drugs and that he was disabled and that he wore prosthesis [sic] on both legs, Sena and McQuinn forced him to walk to the back of their car while hand cuffed [sic]. While pressed up against the back of their car one of the officers pulled down his pants and his underwear exposing his nude buttocks and scrotum parts of his body to the plane [sic] view of the public. They also exposed his prostheses.

When no drugs were found they forcefully threw him into the back seat of their car and then proceeded to search his car. They left him handcuffed in the back seat of their car for over an [sic] half hour. When they did not find any contraband in his car they called a tow truck to tow away his car. When they found out that he was not on parol [sic] they issued a citation falsely stating that he did not have a drivers [sic] license, even though his drivers [sic] license was in his wallet and on his person. They also falsely cited him for an expired registration when his registration was current. They took his wallet and left him stranded at the scene even though he was mobility impaired and had no money.

Boyd Declaration ¶ 5, at 3: 6-25, 4: 1-4 (attached to Pl. Obj. to SJ).

Plaintiff asks the Court to admit these statements by Mr. Boyd under FRE 803(2) as an excited utterance. Pl. Opp. to SJ at 7:15. Defendants contend these statements should be excluded on the grounds that they do not meet the requirements of FRE 803(2), and are therefore inadmissible hearsay under FRE 801 and 802; inadmissible multiple hearsay under FRE 805; and unduly prejudicial under FRE 403. Def. Objections at 2: 17-21.

Here, the admissibility of paragraph five of the Boyd Declaration as an excited utterance under FRE 803(2) hinges on the analysis of the second element: whether Mr. Boyd was so excited or distraught at the moment of the utterance that he did not reflect, or have an opportunity to reflect, on what he was saying. McLennan, 563 F.2d at 948.

The instant case is similar in key respects to State v. Machado, 127 P.3d 941 (2006), supra. In Machado, the declarant, a domestic violence victim, made an extensive narrative statement which that court found to be "detailed, logical, and coherent," and which the court contrasted with admissible excited utterances from another case, which were "brief and disjointed." Machado, 127 P.3d at 948. Like the statements in Machado, Cammerin Boyd's statement is an extensive narrative that is detailed, logical, and coherent, rather than brief and disjointed. Like the victim in Machado — and unlike the wife who had been shot five times in Moore — Mr. Boyd was not in a life threatening situation when he made his statement, and there is no evidence to show that he was physically injured. Like the court in Machado, this Court finds that the nature and the circumstances of the statements made by Cammerin Boyd do not justify the conclusion that he was "under the stress of excitement."

The reasoning of the court in West Valley City v. Hutto, 5 P.3d 1, 4 (Utah Ct.App. 2000), supra, is instructive as well. The court in Hutto distinguished between an excited utterance and the ongoing discourse of an excited individual. Hutto, 5 P.3d at 4. It stated that "[t]he classic example of an excited utterance is a witness's exact recollection of the declarant's spontaneous `sound bite' — an uncoached blurting out" such as, "You're a dead man." Id. at 4. Emphasizing that "the excited utterance exception is limited to `truly spontaneous outbursts,'" the court ruled that "it was error to allow a police officer to recount her entire 30 to 45 minute interview with the alleged domestic abuse victim, rather than limiting admission of the officer's testimony to particularized utterances of the victim." Id.

Here, it is clear that Mr. Boyd's recital is quite different from the examples of "truly spontaneous outbursts" described by the court in Hutto, as well as the examples from the Ninth Circuit, set forth above. Mr. Boyd's statement, recounted in Ms. Boyd's declaration, is a lengthy, chronologically ordered recitation of his version of events. In contrast to the examples of admissible excited utterances, which on average consist of a few words, Mr. Boyd's statement totals more than 380 words. Although Mr. Boyd was described as being "extremely upset" when he made the declaration to his mother/attorney, the declaration itself demonstrates the distinction between an excited person and an excited utterance. To characterize it in the language of the court in Hutto, Mr. Boyd's declaration does not represent an "uncoached blurting out," but rather the "ongoing discourse of an excited person."

Further still, Ms. Boyd's recital of Cammerin Boyd's declaration is not actually in the first person. It is not the "witness's exact recollection of the declarant's spontaneous `sound bite'" as an excited utterance is defined under Hutto. Rather, it appears to be Ms. Boyd's recounting of everything Cammerin Boyd said to her by telephone. In this way, the purported declaration in the instant case is quite similar to the police officer's testimony recounting a 30-45 minute interview with the alleged victim in Hutto, which that court found had been erroneously admitted as an excited utterance.

Under Hutto, this Court finds that it would be error to allow Ms. Boyd to recite her recollection of Cammerin Boyd's lengthy, organized statement as an excited utterance. In other words, Cammerin Boyd's statement to his mother/attorney is not admissible as an excited utterance because its lengthy, organized nature shows that Mr. Boyd was not making a spontaneous outburst, and because that statement appears to be a recounting of an extended conversation with an excited person, rather than a witness' exact recollection of the declarant's spontaneous outburst.

This Court reaches the same result in the instant case as the court in State v. Hansen, 133 Idaho 323, 326 (1999), supra. The court in Hansen ruled that the declarant's statement, alleging domestic abuse by her boyfriend, was inadmissible as an excited utterance because the declarant was angry at her boyfriend, which provided a motive to lie; the ten-minute lapse of time between the end of the alleged incident and the statement allowed "sufficient time for reflective thought and fabrication;" and the statement itself was a "protracted narrative" rather than "an exclamation or a sudden burst of words in sudden reaction to a startling occurrence." Id. at 326-27.

In applying the decision in Hansen to the instant case, the Court turns first to an examination of the evidence as to the lapse of time between the alleged incident and Mr. Boyd's statements to his mother/attorney. Ms. Boyd asserts in her motion in opposition to summary judgment that "Cammerin Boyd spoke to Marylon Boyd immediately after he was strip searched, within five minutes." Pl. Opp. To SJ at 7: 1-3. However, under FRE 602, a witness must have personal knowledge of the subject matter attested to. Fed.R.Evid. 602. Ms. Boyd was admittedly not present at the alleged event and therefore has no personal knowledge of when it ended. Her assertion is thus inadmissible under FRE 602.

The Plaintiff's other offers of evidence yield the following information. First, Mr. Boyd's declaration states that he was pulled over by police "at or about 3:50 or 4:00 p.m." Boyd Declaration ¶ 5. Second, the police traffic citation appears that it may list the time as 4:25 p.m. Plaintiff's Exhibit A. Third, the Towed Vehicle Report lists the time as 4:40 p.m. Plaintiff's Exhibit B. Fourth, Ms. Boyd reported a 4:45 p.m. phone call from Mr. Boyd. Boyd Declaration ¶ 5.

The dispositive inquiry is whether, within the time frame alleged, Mr. Boyd had the opportunity for reflection. Cammerin Boyd's declaration gives the sequence of the alleged events as follows: he was pulled over, dragged from his car, questioned about drugs, and made to walk to the squad car, where he was strip searched. He was then placed in the squad car by himself for 30 minutes while the officers searched his car. Finally, he was issued a traffic citation, his car was ordered towed, and the police left the scene. Given this order of alleged events, the "16:25" on the traffic citation (Exhibit A) indicates the time when the citation was written, which was at the conclusion of the officer's alleged manhandling of Mr. Boyd. This leaves 20 minutes between the end of the alleged incident and Mr. Boyd's declaration via telephone at 4:45 p.m.

The putative sequence of events raises other questions as well. According to the declaration, the police ordered Mr. Boyd's car to be towed at the end of their interaction. Does "16:40" on the Towing Report indicate the time at which the tow truck driver arrived at the scene and began to write a report, or does it indicate the time at which the tow truck driver finished loading the car onto the truck, just before driving away? What was Mr. Boyd doing while the tow truck driver arrived and loaded Mr. Boyd's car onto the tow truck? Was Mr. Boyd sitting on the curb waiting? In addition, did the 30 minutes that Mr. Boyd spent in the squad car allow him an opportunity for reflection?

The answers to these questions cannot be found in Plaintiff's offer of evidence. Based on the comparison of Plaintiff's Exhibits A and B with paragraph five of the Boyd Declaration, there appears to have been at least a 20-minute lapse. At a minimum there was sufficient time for the tow truck to arrive, the driver to complete the paperwork, and, presumably, to load Mr. Boyd's car onto the truck and tow it away. Further, for 30 minutes, Mr. Boyd allegedly sat by himself in the back of the police squad car. Based on its examination of the available evidence, this Court finds that Mr. Boyd had ample opportunity for reflection.

Thus, in the instant case, the facts surrounding Mr. Boyd's statements to his mother/attorney are quite similar to the facts in Hansen, supra. Like the declarant in Hansen who was angry with her boyfriend, Cammerin Boyd was described as being "angry" with the police, which gave him a motive to lie. Here, the lapse of time between the alleged incident and the statement appears to have been 20 minutes or more — which is longer than the 10 minutes in Hansen, and the 5 minutes in Burton (cited in Hansen) which were found to have permitted time for reflection and fabrication. Finally, like the declarant's statements in Hansen, Mr. Boyd's statements were a "protracted narrative" rather than "an exclamation or a sudden burst of words in sudden reaction to a startling occurrence."

Thus, under Hansen, as under Machado and Hutto, this Court concludes that Mr. Boyd's statements to his mother were not made while he was under the stress of excitement such that his reflective capacity was stilled, and therefore, Mr. Boyd's statements to his mother/attorney are not admissible as an excited utterance under FRE 803(2).

The discussion of the nature of the statement itself — its length, coherence, and level of detail — as an indicator of whether the declarant was "under the stress of excitement" may be an issue of first impression in the Ninth Circuit. However, this approach is fully consistent with the principles behind the excited utterance hearsay exception as analyzed in Ninth Circuit opinions.

2. Cammerin Boyd's statements to Ms. Boyd via telephone are not admissible as a present sense impression because of the lack of corroboration, the presence of two motives to distort, and lack of spontaneity — all of which are indicators of unreliability.

Federal Rule of Evidence (hereafter "FRE") 803(1) provides that a present sense impression is an exception to the hearsay rule, and is defined as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Fed.R.Evid. 803(1).

Under the Confrontation Clause, hearsay is admissible only "if it bears adequate `indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception . . . [or upon] a showing of particularized guarantees of trustworthiness." . . . [T]here is no case law holding that the present sense impression exception to the rule against hearsay is `firmly rooted.' Therefore, the focus is on whether there is a particularized guarantee of trustworthiness with respect to this statement.

"There is no mechanical test for determining reliability nor a prescribed list of reliability elements . . . and `courts have considerable leeway in their consideration of appropriate factors.' . . . The reliability of the out-of-court statements cannot be established `by bootstrapping on the trustworthiness of other evidence.'" Whelchel v. Washington, 232 F.3d 1197, 1204 (9th Cir. 2000) (internal citations omitted).

Corroboration, motive to lie, and contemporaneity or spontaneity are all recognized indicia of reliability. See Barker v. Morris, 761 F.2d 1396, 1402 (9th Cir. 1985) (corroboration is an indicium of reliability); U.S. v. Murillo, 288 F.3d 1126, 1138 (9th Cir. 2002) (motive to lie is an indicium of reliability); U.S. v. Ponticelli, 622 F.2d 985, 992 (9th Cir. 1980) (the contemplation of litigation is a motive to lie), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds, U.S. v. DeBright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc); State v. Hansen, 133 Idaho 323, 326 (1999) (anger is a motive to lie); Ponticelli, 761 F.2d at 1402, supra, (citing Dutton v. Evans, 400 U.S. 74, 89 (1970)) (contemporaneity/spontaneity is an indicium of reliability).

In the instant case, given that the present sense impression is not a "firmly rooted" hearsay exception, per U.S. v. Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002), the Court must assess whether Mr. Boyd's statement to Ms. Boyd, his mother and attorney, had "particularized guarantees of trustworthiness." Based on the facts of the instant case, and given courts' "considerable leeway in their consideration of appropriate factors," per Whelchel v. Washington, 232 F.3d 1197, 1204 (9th Cir. 2000), this Court will apply the relevant indicia of reliability to assess whether Cammerin Boyd's statements contain particularized guarantees of trustworthiness sufficient to render the statements admissible as a hearsay exception.

(I) The lack of corroboration of Cammerin Boyd's version of events weighs against finding his declaration to be reliable.

"Corroboration is a recognized indicium of reliability . . ." Barker v. Morris, 761 F.2d 1396, 1402 (9th Cir. 1985) (citing U.S. v. Garner, 574 F.2d 1141, 1144 (4th Cir. 1978) (holding that testimony of another witness is an important corroborating factor). In Barker, one Bill Pifer, after learning that he would soon die of throat cancer, came forward and told police of a double homicide that he had witnessed. Id. at 1398. Pifer led police to the remains of the victims and identified the murderers as members of a motorcycle gang to which he belonged. Id.

Pifer died before trial, but had testified under oath and on videotape. Id. The testimony was corroborated by the victims' remains, the testimony of co-defendants, and the admissions of other co-defendants. Id. at 1402. The court in Barker concluded that "[t]he reliability of Pifer's testimony is strongly supported by the fact of independent corroboration for each of its essential elements . . . by physical evidence discovered at the burial site and by the testimony of both [co-defendants] Green and Moran." Id. at 1402. After considering other factors relevant to the facts in that case, the court in Barker held that Pifer's videotaped testimony bore adequate indicia of reliability and was thus admissible. Id. at 1403.

In the instant case, the Plaintiff offers copies of two documents as corroboration for the version of events in Cammerin Boyd's declaration. Plaintiff's Exhibit A appears to be a photocopy of a citation issued to Cammerin Boyd. See Pl. Opp. to SJ, Exhibit A. Ms. Boyd asserts that Plaintiff's Exhibit A "corroborates Cammerin's statement that he was stopped by Sena and McQuinn." Boyd Declaration at 4: 23-24. The copy of the citation provided by the Plaintiff is difficult to read; it may list "23 Jul 02" as the date, and "16:25" as the time. See Pl. Opp. to SJ, Exhibit A. For the sake of argument, the Court will assume, without so finding, that it does so read. Plaintiff's Exhibit B is entitled "Towed Vehicle Report," which clearly lists the date as "23 Jul 02" and the time as "16:40." See Pl. Opp. to SJ, Exhibit B. Each of these documents supports Cammerin Boyd's assertion that he was ticketed and his car was towed between approximately 4:25 and 4:40 p.m. on July 23, 2002. However, neither document provides any support for Mr. Boyd's version of his encounter with the police, and thus they do not provide substantive corroboration of Mr. Boyd's declaration.

Ms. Boyd next asserts that there are witnesses who can corroborate Mr. Boyd's version of events. Boyd Declaration ¶ 2 — 4. Ms. Boyd requested that she be allowed to testify as to the statements made to her by alleged witnesses, who, she asserts, have not come forward due to fear of reprisal by the police. Boyd Declaration ¶ 2-4. Ms. Boyd declares that she interviewed three such witnesses "within minutes of the incident occurring." Id. at ¶ 4. However, she also says that she arrived at the scene of the alleged incident at 5:15 p.m., half an hour after she purportedly received the phone call from Mr. Boyd, informing her of the alleged incident. Id. at ¶ 5. There is no evidence as to how long after the alleged incident ended Cammerin Boyd called his mother. Thus, assuming that Ms. Boyd's 5:15 arrival time in paragraph five is accurate, Ms. Boyd could not have spoken with the witnesses "within minutes of the incident." Under Federal Rule of Evidence 802, Ms. Boyd's request to testify as to their statements to her is barred by the hearsay rule. No hearsay exception applies to the statements made by the witnesses to render them otherwise admissible as evidence. Therefore, they do not corroborate Cammerin Boyd's declaration.

Ms. Boyd also asserts that the deposition testimony of Chief Word corroborates Cammerin Boyd's version of events on July 23, 2002. Pl. Opp. to SJ at 5: 1-3. Ms. Boyd cites page 71, lines 5-12 and page 72, lines 1-12 of Exhibit D, Chief Word's deposition. Id. However, the statements on page 71, lines 5-12 of that deposition constitute Chief Word's answer to a question about a hypothetical set of facts posed by Ms. Boyd. As such, these statements do not provide evidence to corroborate Cammerin Boyd's declaration.

Next, Chief Word's statements on page 72, lines 1-12 are part of a discussion of a newspaper article in which Chief Word was quoted as stating "I don't think the public understands when we say strip search. They think we took all his clothes off in the street, and that's not what happened," in reference to the Defendant Officers' stop of Cammerin Boyd on July 21, 2002. Exhibit D 72: 1-7. Ms. Boyd then asked "What did you base that information on to make that quote?" Id. at 8-9. Chief Word replied, "My discussions with my staff. And what they told me actually occurred was not some full-blown stripping off of clothes and searching the body." Id. at 10-12.

This testimony shows that Mr. Boyd was searched in some way by the Defendant Officers on July 23, 2002. To this extent, Chief Word's deposition corroborates Cammerin Boyd's declaration that a search of some sort did occur. However, while Chief Word could not remember the details of what he was told about the search, he did recall that his staff specifically told him that Mr. Boyd was not subjected to the public removal of both his outer clothing and undergarments. To this extent, Chief Word's deposition not only fails to corroborate Cammerin Boyd's declaration, it actually refutes the substance of Mr. Boyd's declaration alleging that he was stripped naked below the waist and subjected to a body cavity search in public.

Finally, Ms. Boyd asserts that a copy of the Plaintiff's government tort claim, filed with the City of Oakland, corroborates Cammerin Boyd's version of events. Pl. Opp. to SJ at 5: 1-3. This document contains Mr. Boyd's allegations against the City of Oakland in relation to the alleged incident on July 23, 2002, with no evidence in support of those claims. See Pl. Opp to SJ, Exhibit C. These are the same allegations set forth in the case at bar, the repetition of which does not provide admissible evidence to corroborate Mr. Boyd's declaration.

In sum, the Plaintiff's admissible evidence to corroborate Cammerin Boyd's declaration consists of Exhibits A and B, and the declaration of Chief Word. These offers of proof establish that Mr. Boyd was searched and cited, and his car towed. However, none of this evidence tends to establish that the encounter with the police happened in the abusive, discriminatory manner that Mr. Boyd asserted. Plaintiff's other offers of proof also fail to corroborate Mr. Boyd's declaration: not one of the purported witnesses to the alleged incident was produced despite ample time for discovery, and the claim filed with the City of Oakland was a repetition of the allegations made in this case and was entirely lacking in proof thereof.

The corroborating evidence in the instant case is substantially less than that in Barker v. Morris, 761 F.2d 1396, 1402 (9th Cir. 1985), supra, in which the declarant's statements were found to be reliable based on the victims' remains, the testimony of co-defendants, and the admissions of other co-defendants. Barker v. Morris, 761 F.2d 1396, 1402 (9th Cir. 1985), supra.

In contrast, here the corroborating evidence is scant. That which is admissible does not corroborate the substance of Mr. Boyd's declaration. Plaintiff fails to provide any corroborating evidence to support Cammerin Boyd's version of events on July 23, 2002. Given that corroboration is an indicator of reliability, the lack of corroboration for Mr. Boyd's declaration weighs against finding that declaration to be reliable, and thus it is inadmissible as a present sense impression.

(ii) The presence of two motives for Cammerin Boyd to fabricate or exaggerate weighs against finding his declaration to be reliable.

Motive or incentive to lie is an indicium of reliability. U.S. v. Ponticelli, 622 F.2d 985, 992 (9th Cir. 1980), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds, U.S. v. DeBright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc). See also U.S. v. Murillo, 288 F.3d 1126, 1138 (9th Cir. 2002). In Ponticelli, the declarant made his declaration to his attorney, which the appellate court concluded "implies that [the declarant] was considering the legal significance of his declarations at the time he made them." Ponticelli, 622 F.2d at 991-92. The fact that the declarant in this case made his statements while perhaps contemplating litigation constitutes a motive to lie, which the Court weighs against finding the declaration to be reliable. Id.

In State v. Hansen, 133 Idaho 323, 326 (1999), supra, the declarant was described as being "madder than she had ever been" upon reporting an alleged incident of domestic abuse. State v. Hansen, 133 Idaho 323, 326-27 (1999), supra. The court in Hansen found that the declarant's "anger . . . could have provided a motivation to fabricate or exaggerate in [the declarant's] version of events." Id. at 326.

In the instant case, Cammerin Boyd, like the declarant in Ponticelli, made his declaration to his attorney, Ms. Boyd, who is also his mother. This raises the possibility that this declaration was made in contemplation of litigation, which, like the declarant in Ponticelli, gives Mr. Boyd a motive to lie, which weighs in favor of finding his declaration to be unreliable. In addition, like the declarant in Hansen, Cammerin Boyd was "angry" at the police and thus had a motive to fabricate or exaggerate his version of events. Like the court in Hansen, this Court finds that anger as a motive to lie weighs against Mr. Boyd's declaration to be reliable.

(iii) The evidence regarding the lapse of time between the alleged incident and the declaration, plus the extensive narrative nature of the declaration, undermine the notion that Cammerin Boyd's statements were spontaneous and made without an opportunity for reflection, and weigh in favor of finding his declaration to be unreliable.

A court may consider spontaneity or contemporaneity as an indicium of reliability. U.S. v. Ponticelli, 761 F.2d 1396, 1402 (9th Cir. 1980) (citing Dutton v. Evans, 400 U.S. 74, 89 (1970)), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds, U.S. v. DeBright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc). A present sense impression must be "nearly contemporaneous with the incident described and made with little chance for reflection." Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995).

"The underlying rationale of the present sense impression exception is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant's] defective recollection or conscious fabrication.". . . The present sense impression exception is rightfully limited to statements made while a declarant perceives an event or immediately thereafter, and we decline to expand it to cover a declarant's relatively recent memories. The opportunity for strategic modification undercuts the reliability that spontaneity insures."

In deciding admissibility of a declaration as a present sense impression, where the lapse of time between the event and the declaration is not established by the attorney who seeks to introduce the evidence, a court is entitled to conclude that the declarant had sufficient time for reflection. Ponticelli, 622 F.2d at 992, supra. In addition to viewing the contemplation of litigation as a motive to lie, the court in Ponticelli also placed weight on the fact that the declarant's attorney failed to establish the lapse of time between the declarant's arrest (the event upon which the contemporaneity assessment was based) and the declaration. Id. Thus, it held that "the trial court did not abuse its discretion in concluding that [the declarant] had a chance for reflection and misrepresentation in making the proffered statements." Id.

The court in Ponticelli found the presence of a motive to lie (the contemplation of litigation), coupled with the opportunity to do so (given that the lapse of time between event and declaration was not established), formed a sufficient basis upon which to find the declarant's statements to be unreliable and thus inadmissible. Id.

Here, as in Ponticelli, Plaintiff's attorney did not proffer admissible evidence to establish the lapse of time between the event and the statements. As established above, Ms. Boyd's assertion that it was "within five minutes" is inadmissible because Ms. Boyd was not present at the alleged incident and does not have personal knowledge as to when it ended. Where the lapse of time is not established, as in Ponticelli, it is reasonable for this Court to conclude that Mr. Boyd, like Mr. Ponticelli, "had a chance for reflection and misrepresentation in making the proffered statements." Ponticelli, 622 F.2d at 992. Further, the Court's examination of the evidence, as established above, reveals a lapse of roughly 20 minutes between the end of the alleged incident and the declaration. Whether the lapse of time is unknown or whether it was 20 minutes, either provides sufficient basis for this Court to conclude that Mr. Boyd had sufficient time for reflection, and therefore, that his statements were not spontaneous. Hence, these statements are neither reliable nor admissible.

This conclusion is further supported by analysis of the nature of the statements, similar to that applied to the excited utterance hearsay analysis above. The nature of Mr. Boyd's declaration shows that it was not a statement made spontaneously and without reflection. Rather than being a burst of words describing what he was presently perceiving or had perceived immediately beforehand, Mr. Boyd's declaration consists of a lengthy, detailed, narrative account. The coherence and structure of this account shows that Mr. Boyd "was reflecting on the event" rather than spontaneously reacting to a present sensory experience. The nature of Cammerin Boyd's statement as an extensive reflective narrative weighs against finding his declaration to be spontaneous — an element without which the declaration cannot be deemed reliable.

Analysis under recognized indicia of reliability, including corroboration, motive to lie, and spontaneity, reveals that each indicator weighs against finding Cammerin Boyd's statements to his mother, who is also his attorney, to be reliable for the purposes of admission as a present sense impression. Mr. Boyd's declaration lacked corroboration of his version of events. Mr. Boyd had two motives to lie — the contemplation of litigation and anger at the police. The lapse of time between the alleged altercation with the police and Mr. Boyd's declaration was not established by his attorney and appears to have allowed him an opportunity for reflection. This opportunity for reflection negates the requisite spontaneity — a conclusion that is reinforced by the nature of his statement, which was a lengthy, orderly narrative account, rather than a burst of words blurting out what he was presently perceiving. Having assessed the statement by the relevant indicia of reliability, this Court finds that Cammerin Boyd's statements are unreliable and thus are inadmissible under the present sense impression exception to the hearsay rule.

3. Only the description of Cammerin Boyd as "extremely upset" is admissible under FRE 803(3), as it reflects his then-current emotional state of mind rather than his memory or belief about the cause of that state of mind.

FRE 803(3) provides for an exception to the hearsay rule for "[a] statement of a declarant's then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the . . . declarant's will." Fed.R.Evid. 803(3).

The state-of-mind hearsay exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind. If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition — "I'm scared" — and not belief — "I'm scared because [someone] threatened me."

In the instant case, nearly all of Cammerin Boyd's declaration to his mother and attorney relates to his memory or belief as to why he was in the described condition. As such, these statements are inadmissible under FRE 803(3). The only admissible portion is the description that he was "extremely upset," because this describes his then-current emotional state.

4. Cammerin Boyd's statements to his mother/attorney are not admissible under FRE 807 because the statements lack particularized guarantees of trustworthiness.

FRE 807, the "catchall" exception to the hearsay rule, provides that,

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and ©) the general purposes of these rules and the interests of justice will best be served by the admission of the statement into evidence.

Fed.R.Evid. 807.

The "circumstantial guarantees of trustworthiness" required by Rule 807 are not present where the statement of the declarant is "plainly self-serving and no corroboration [is] available." Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985). As established above, the Court finds Cammerin Boyd's statements to be inadmissible under FRE 803(1), the present sense impression exception to the hearsay rule, because the statements lacked particularized guarantees of trustworthiness, due to a lack of corroboration and the presence of motives to lie, including the contemplation of litigation. As Mr. Boyd's statements lack "particularized guarantees of trustworthiness" under FRE 803(1), so do they lack "circumstantial guarantees of trustworthiness" under FRE 807. To put it another way, like the statements ruled inadmissible in Bulthuis v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1986), supra, Mr. Boyd's statements are self serving (e.g., made in contemplation of litigation, as established above) and lack corroboration. Thus, this Court finds Mr. Boyd's statements to be inadmissible under FRE 807, the catchall exception to the hearsay rule.

E. The portions of paragraph six that contain Ms. Boyd's personal observations of Cammerin Boyd's condition are admissible; However, her legal conclusions and assertions made without personal knowledge are inadmissible under FRCP 56(e).

Paragraph six of the Boyd Declaration offers a brief recounting of Cammerin Boyd's version of events. Boyd Declaration ¶ 6 at 4: 5-13. The above analysis of the admissibility of Mr. Boyd's statements under specified exceptions to the hearsay rule applies here as well. The noteworthy difference between the statements relayed in paragraph five to Ms. Boyd via telephone, and those conveyed in paragraph six to Ms. Boyd in person, is that in the latter case, the time lapse between the alleged incident and the statements is even longer. This adds more weight against admissibility. The Court therefore finds Cammerin Boyd's statements in paragraph six to be inadmissible hearsay under FRE 802. No hearsay exception applies to render them otherwise admissible.

Paragraph six of the Boyd Declaration also offers Ms. Boyd's account of her observations upon arriving at Cammerin Boyd's location at 5:15 p.m. on July 23, 2002. Id. As established above, legal conclusions are inadmissible as are matters not within the personal knowledge of the declarant. FRCP 56(e); Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002). Ms. Boyd's descriptions such as "excessive force" and "assault" constitute legal conclusions. In addition, Ms. Boyd's statements that the marks observed on Cammerin Boyd's wrists were caused by "the handcuffs . . . placed too tightly" and that he walked in great pain "from having to walk without assistive devices" fall outside of the scope of her personal knowledge, as she was admittedly not present to have observed the alleged causal incidents events. Thus, while Ms. Boyd's personal observations of Cammerin Boyd's condition are admissible — including the time at which she arrived at his location, and that he was emotionally distraught, tears streamed down his face, and he was visibly shaken, upset and angry — her legal conclusions and commentary about the reasons for Cammerin Boyd's emotional condition are not admissible. Moreover, these observations are insufficient to defeat summary judgment.

II. Plaintiff's death and his attorney's subsequent failure to substitute his Estate as Plaintiff do not warrant dismissal under Federal Civil Procedure Rule 25 because Defendants did not meet that rule's procedural requirements; however, because the failure to substitute raises the issue of proper plaintiff under Rule 17, the Court hereby resolves the issue under Rule 21 by ordering that Mr. Boyd's Estate be substituted as Plaintiff.

The case at bar was filed on July 21, 2003. Cammerin Boyd was killed in an unrelated incident on May 5, 2004. The Plaintiff's attorney and mother, Ms. Marylon Boyd, was subsequently named as the administrator and executor of Cammerin Boyd's estate. However, Cammerin Boyd remains the named Plaintiff.

Defendants raised an objection to Mr. Boyd as the named Plaintiff, but did not brief the issue in their motion for summary judgment. Defendants did note that "their contentions in support of their motion would be equally applicable to Mr. Boyd's estate or heirs, were they named as plaintiffs in this case."

A. The lawsuit in the instant case cannot be dismissed for failure to substitute the Estate of Cammerin Boyd as Plaintiff, because Defendants did not follow the procedural requirements of Federal Rule of Civil Procedure 25.

Fed.R.Civ.P. 25(a)(1) requires two affirmative steps in order to trigger the running of the 90 day period. First, a party must formally suggest the death of the party upon the record . . . Second, the suggesting party must serve other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the motion to substitute. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).

Regarding the second element, Defendants provided neither an assertion nor evidence that they complied with the notice requirements of Rule 25. Thus, the action may not be dismissed under Rule 25 for failure to substitute the Estate of Cammerin Boyd as Plaintiff. B. Pursuant to judicial authority to add or drop a party under Federal Rule of Civil Procedure 21, this Court orders the Estate of Cammerin Boyd to be substituted for the deceased Plaintiff, in order to avoid depriving the real party in interest, the Estate, of its claims, and to protect Defendants against a subsequent action which might otherwise be brought by the Estate if it were not so substituted.

Rule 21 of the Federal Rules of Civil Procedure provides that "[p]arties may be dropped or added by order of the court on motion by any party or of its own initiative at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21. A court may invoke Rule 21 sua sponte to add a party during trial in order to cure a Rule 17 real party in interest defect. Thor Power Tool Company v. Weintraub, 791 F.2d 579 (7th Cir. 1986).

Rule 17 of the Federal Rules of Civil Procedure provides that, "[e]very action shall be prosecuted in the name of the real party in interest." Fed.R.Civ.P. Rule 17(a). While Rule 17 does not define who is a "real party in interest," it specifically lists an "executor" or an "administrator" as a party who "may sue in that person's own name without joining with him [or her] the party for whose benefit the action is brought." Id.

In the present case, Ms. Boyd was appointed executor and administrator of Mr. Boyd's Estate after his death. Ms. Boyd became a real party in interest in this lawsuit under Rule 17, once she was so appointed. Ms. Boyd has not filed a motion to substitute herself, in her capacity as executor and administrator, as the named Plaintiff.

Given Ms. Boyd's status as a "real party in interest" under Rule 17, and given the Court's authority to add a party "of its own initiative at any stage of the action and on such terms as are just" under Rule 21, the Court hereby orders the Estate of Cammerin Boyd to be substituted as the named Plaintiff in the lawsuit at bar. As established in Rule 17, this "substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." Defendants have acknowledged that their arguments for summary judgment apply whether the Plaintiff is Mr. Boyd or Mr. Boyd's Estate.

The Court's order of substitution is "just" under Rule 21, because it avoids depriving the real party in interest (the Estate of Cammerin Boyd) of its claims, while it protects the Defendants against subsequent action by the party actually entitled to recover (the Estate of Cammerin Boyd), and insures "that the judgment will have its proper effect as res judicata," in accord with the purposes of Rule 17.

III. Defendants' motion for summary judgment is granted as to all of Plaintiff's claims, given Plaintiff's lack of admissible evidence as to all elements, or key elements, of each claim.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

A party moving for summary judgment who does not have the ultimate burden of persuasion at trial (usually the defendant) has the initial burden of . . . showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

Once the moving party has satisfied its initial burden, "the non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial." Id. at 1102 (emphasis added). "Conclusory allegations . . . without factual support, are insufficient to defeat summary judgment." National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient." Id. "If the evidence is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (citations omitted).

"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. at 255. The non-movant's evidence "is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor." Id. Where "the inferences to be drawn (even from undisputed facts) . . . depend on the weight and credibility of the evidence . . . [these] are questions of fact for the jury to decide. Id. See also Schwarzer, supra, at § 14:257.

"The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). See also Orr v. Bank of America, 285 F.3d 764, 774-75 (9th Cir. 2002).

A. Summary judgment is granted as to Plaintiff's disability discrimination claim under ADA Title II and Rehabilitation Act § 504, because Plaintiff failed to provide evidence to establish any requisite elements, including that Defendant Officers excluded Mr. Boyd from the benefits of a public program or service, or otherwise discriminated against him.

"[The Ninth Circuit's] interpretation of Title II of the ADA applies equally to Section 504 of the Rehabilitation Act." Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999). The language of the two statutes is "similarly expansive" and "Congress has directed that the ADA and Rehabilitation Act be construed consistently." Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998).

Given the similar substance of the ADA and RA, this Court will address the elements of ADA and RA claims together, as follows. To prove a violation of either the ADA Title II or Rehabilitation Act Section 504, the Plaintiff must show that Cammerin Boyd: (1) was an `individual with a disability'; (2) was either excluded from participation in or denied the benefits of services, programs or activities, or was otherwise discriminated against;(3) was `otherwise eligible' to receive the benefit; (4) the denial of benefits or discrimination was solely by reason of his disability; and (5) the Defendant Officers, Oakland Police Department, and City of Oakland receive federal funding (for the Rehabilitation Act claim), or constitute a public entity (for the ADA claim). See Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997) (listing elements for disability discrimination claims under Title II of the ADA and § 504 of the Rehabilitation Act); Zukle v. Regents of the University of California, 166 F.3d 1041, 1045 (9th Cir. 1999) (applying a combined set of elements for plaintiff's disability discrimination claims under Title II of the ADA and § 504 of the Rehabilitation Act).

In addition, in order to collect monetary damages in a failure to accommodate case, the plaintiff must prove intentional discrimination, the standard for which is "deliberate indifference" which this Court will treat as a sixth element for the purposes of this analysis. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001).

The analysis in the instant case hinges on the second element.

Under the Americans with Disabilities Act, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. "[T]he ADA defines discrimination as a public accommodation treating a disabled patron the same as other patrons despite the former's need for a reasonable modification." Id. at 1268-70.

In order to successfully oppose summary judgment, Plaintiff must produce admissible evidence to establish a genuine issue of material fact as to whether the Defendants excluded Mr. Boyd from the benefits of a public program or service, or otherwise discriminated against him. Nissan Fire Marine Ins. Co., 210 F.3d at 1102. To this end, Plaintiff makes four assertions of proof. Pl. Opp. to SJ 6:4-6; 6:21-22; 8:25; 9:1-5.

First, Plaintiff asserts that Chief Word's deposition establishes a violation of disability laws in that he "opined that it would not be reasonable or appropriate for an officer to take away the transportation of a disabled person and leave him on the streets in a high crime area." See Pl. Opp. to SJ at 5: 4-6. Plaintiff cites to page 76, lines 1-21 of Chief Word's deposition. Plaintiff's use of the word "opined" is accurate. The cited statements, read in context, were made in response to a hypothetical scenario posed by Plaintiff's counsel. Chief Word's conjecture does not constitute admissible evidence. Therefore, Plaintiff's first offer of proof fails to provide evidentiary support for Plaintiff's allegation that Defendant Officers excluded Mr. Boyd from the benefits of a public program or service, or otherwise discriminated against him.

Second, Plaintiff asserts that Captain Loman's deposition testimony provides evidentiary support for her disability discrimination claim, citing to his deposition as follows: "p. 46: 22-25; p. 47:24-25; p. 48:1-25; p. 49:1-17; p. 50:21-25; p. 51:1-20." See Pl. Opp. to SJ 5: 11-12. The cited sections from Captain Loman's deposition, like Chief Word's deposition, are inadequate as evidence of discrimination against Mr. Boyd. Page 46, lines 22-25 set forth a question posed by Plaintiff's counsel regarding the Oakland Police Department's policies regarding strip searches, and has nothing to do with disability discrimination. The remaining cited statements represent Captain Loman's conjectural responses to questions about a hypothetical scenario posed by Plaintiff's counsel, which do not constitute admissible evidence that the Defendant Officers excluded Mr. Boyd from the benefits of a public program or service, or otherwise discriminated against Mr. Boyd.

Third, Plaintiff's counsel points to Cammerin Boyd's declaration as evidence of disability discrimination. As established above, Mr. Boyd's declaration is inadmissible hearsay under FRE 802, and as such it cannot serve as proof that the Defendant Officers either excluded Mr. Boyd from the benefits of a public program or service, or otherwise discriminated against Mr. Boyd.

Fourth, Plaintiff's counsel asserts that the testimony of "others" establishes that Mr. Boyd was discriminated against. Pl. Opp. to SJ 6: 5-6. This reference to the testimony of "others" is lacking in specific page numbers, line numbers, as well as the names of the witnesses. The lack of adequate reference under Carmen, supra, compels this Court to find that Plaintiff has not provided evidence sufficient to raise a triable issue of material fact. Nevertheless, for the sake of completeness this Court will assume that Plaintiff refers to the alleged witnesses described by Plaintiff's attorney in paragraphs two, three, and four of the Boyd Declaration. However, as discussed in the section on admissibility above, the testimony of these alleged witnesses is inadmissible hearsay under FRE 802, and no hearsay exception applies to render their statements otherwise admissible.

Each of Plaintiff's four offers of proof fails to provide any admissible evidence to establish that Defendant Officers excluded Mr. Boyd from a public program or service, or that they otherwise discriminated against him. Without evidence to establish this foundational element of the claim, Plaintiff cannot prevail. Therefore, the Court grants Defendants' motion for summary judgment as to Plaintiff's disability discrimination claim.

B. Defendant's motion for summary judgment is granted as to Plaintiff's § 1983 claim against Defendant Officers, because although Plaintiff provided evidence to establish that the officers acted under color of law in ticketing Mr. Boyd and towing his car, Plaintiff failed to produce admissible evidence to establish that Defendant Officers violated Mr. Boyd's rights.

Section 1983 provides that,

Every person who, under color of any statute . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In order to prove a violation of Section 1983, a plaintiff must establish: "(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Johnson v. Hawe, 388 F.3d 676, 680 (9th Cir. 2004).

1. Plaintiff's Exhibit A, the traffic citation, and Exhibit B, the towing receipt, establish that Defendant Officers acted "in their official capacity" when they ticketed Mr. Boyd and towed his car, thus establishing that they acted "under color of law" for the first element of the Plaintiff's § 1983 claim.

"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." U.S. v. Classic, 313 U.S. 299 (1941). Officers act under color of law when they perform their actions in an official capacity. Screws v. U.S., 325 U.S. 91 (1945).

Plaintiff's admissible evidence in support of the § 1983 claim against Defendant Officers consists of Plaintiff's Exhibits A and B. See Pl. Opp. to SJ, Exhibits A-B. Exhibit A is a traffic citation issued to Mr. Boyd, apparently on July 21, 2002 (as discussed above, it is nearly illegible). The citation, as an official departmental document, represents an exercise of official police power that was applied to Cammerin Boyd, which is sufficient to establish that the Defendant Officers "acted under color of state law." Similarly, Exhibit B, the towing report, establishes that the towing of Mr. Boyd's car was an official action of the Oakland Police Department, and thus was an action undertaken "under color of state law." Thus, the first element of the two-element test for the Plaintiff's § 1983 claim is met.

2. Plaintiff failed to provide admissible evidence to satisfy element two of a § 1983 claim: that Mr. Boyd was deprived of his Fourth and Fourteenth Amendment rights.

"A person deprives another `of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].'" Redman v. County of San Diego, 942 F2d 1435, 1443-44 (9th Cir. 1991) (emphasis and citation omitted).

This Court construes Plaintiff's Complaint to allege the following claims of violations of his rights under § 1983 against Officers Sena and McQuinn: (1) violation of Fourth Amendment rights, specifically (I) excessive force, (ii) unreasonable search and seizure, and (iii) unlawful arrest; (2) violation of Fourteenth Amendment rights; (3) violation of rights under the ADA; (4) violation of rights under Section 504 of the Rehabilitation Act. The ADA and Rehabilitation Act claims are addressed in the section on disability discrimination, above. The remaining claims are each addressed in turn below.

(I) Fourth Amendment

(a) Excessive Force

"[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a [Fourteenth Amendment] `substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989). "[S]ubjective concepts like `malice' and `sadism' have no proper place in that inquiry." Id. at 399.

"Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interest at stake." Id. at 396. See also Blanford v. Sacramento County, 406 F.3d 1110 (2005).

"[T]he `reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397. Relevant facts and circumstances include "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. at 396.

Plaintiff alleges that Defendant Officers treated Mr. Boyd with excessive force in dragging him from his car, forcing him to walk on his prosthetics without the use of his assistive devices, publicly strip searching him, and throwing him into their squad car with his hands in handcuffs behind his back. As evidence of these allegations, Plaintiff makes no specific offer of evidence in the opposition papers; however, counsel appears to point generally to the following evidence as proof of all allegations regarding all claims: Cammerin Boyd's declaration; Marylon Boyd's declaration; a copy of Mr. Boyd's government tort claim with the City of Oakland; Chief Word's deposition; Captain Loman's deposition; off-the-record testimony of "other witnesses;" and statements of "other plaintiffs in the class action" (the unrelated case in another courtroom that alleges police misconduct). See e.g. Pl. Opp. to SJ 5:1-3, 6:1-2.

These offers of evidence have been analyzed above, either in the section on admissibility or under the Plaintiff's disability discrimination claim, and the Court finds that each of these offers of proof fails to provide admissible evidentiary support to establish the basic facts alleged by Plaintiff regarding Defendant Officers' conduct on July 23, 2002. Further, this offer of proof fails to provide admissible evidence to establish that the officers' alleged conduct was unreasonable in light of the facts and circumstances confronting them, which is a requisite element of Plaintiff's excessive force claim.

As established above, Plaintiff had ample time in which to produce witnesses or other admissible evidence of the alleged incident, having been granted three continuances (totaling 16 months) by this Court. Given Plaintiff's failure to provide admissible evidence in support of her allegations, despite ample opportunity to do so, the Court hereby grants Defendants' motion for summary judgment as to Plaintiff's excessive force claim.

(b) Unreasonable Search and Seizure

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.

In Bell, inmates at a federal prison sued under § 1983 for violation of their Fourth Amendment rights to be free of unreasonable searches and seizures. Id. at 520. At issue was the prison's policy of conducting post-visitation strip searches of inmates, including a visual inspection of inmates' body cavities. Id. at 550, 558.

In conducting the balancing test, the Supreme Court in Bell stated that it does "not underestimate the degree to which these searches may invade the personal privacy of inmates." Id. at 560. Nevertheless, "[a] detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence." Id. at 559. The Court in Bell concluded that "under the circumstances, we do not believe that these searches are unreasonable," and held that "these searches do not violate that Amendment." Id. at 558.

The Plaintiff alleges that Mr. Boyd was pulled over without justification or basis, dragged from his car, made to walk on his prosthetic legs without assistive devices, subjected to a public strip search that included a body cavity search, and was forcibly thrown into the back of a squad car while his car was searched. Boyd Declaration ¶ 5 at 3: 18-22. However, as established above, the Plaintiff failed to provide any admissible evidence to support these allegations. Given that allegations alone are insufficient to defeat summary judgment, the Defendant's motion for summary judgment is granted as to the Plaintiff's unreasonable search and seizure claim.

(c) Unlawful Arrest

To establish a claim for Unlawful Arrest under § 1983, a plaintiff must prove: (1) that Defendant Officers arrested Mr. Boyd without a warrant, (2) that Mr. Boyd was actually harmed, and (3) that Defendant Officers' conduct was a substantial factor in causing Mr. Boyd's harm. Dubner v. City County of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001). A plaintiff "can make a prima facie case simply by showing the arrest was made without a valid warrant. At that point, the burden shifts to the defendant to provide some evidence that the arresting officers had probable cause for a warrantless search." Id. at 965.

An investigatory stop becomes an arrest if, under "the totality of the circumstances," the situation is "sufficiently coercive that no distinction can rightly be drawn between that seizure and an arrest." U.S. v. Baron, 860 F.2d 911, 914-16 (9th Cir. 1988). Under the "totality of the circumstances", the court in Baron analyzed several factors to assess whether the level of coerciveness reached the point at which the stop was indistinguishable from an arrest: whether the police left the individual on the street or moved him to a police-controlled area; whether the police had drawn weapons; whether the individual was handcuffed or otherwise controlled; whether the length of the stop was long (20-40 minutes) or short (5-10 minutes); and whether there was a societal power differential between the officers and the individual, for example, based on ethnicity or gender. Id. at 914-16.

Here, Plaintiff's relevant allegations are that the Defendant Officers stopped Mr. Boyd "without any justification or basis" and "forcefully threw" him into the back of the police car; that they had drawn their guns on him; that he was handcuffed; that he sat in the back of the police car for over 30 minutes; and there may have been a power differential based on ethnicity. (Mr. Boyd was African American; the evidence does not establish the ethnicities of the Defendant Officers, but the Plaintiff alleges racial discrimination.) These factors, if proven, would weigh in favor of a finding that Mr. Boyd was under arrest. However, as established above, Plaintiff failed to provide any admissible evidence to support the allegations. Given that allegations alone are insufficient to defeat summary judgment, the Defendants' motion for summary judgment is hereby granted as to the Plaintiff's claim of unlawful arrest.

(ii) Fourteenth Amendment

"[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a [Fourteenth Amendment] `substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989). The Fourteenth Amendment analysis applies to the incarceration setting. Id.

As discussed above, Plaintiff alleges that Defendant Officers used excessive force while Plaintiff was stopped, questioned, searched, and detained for 30 minutes in the Officers' squad car. Based on the Plaintiff's allegations, the stop by Defendant Officers was an investigatory stop or an arrest. There were neither allegations nor evidence that Mr. Boyd was incarcerated. Under Graham, the appropriate standard for an investigatory stop or arrest is the Fourth Amendment standard, rather than a Fourteenth Amendment due process analysis. The Court thus grants summary judgment as a matter of law as to the Plaintiff's Fourteenth Amendment claim.

The Fourth Amendment analysis of Plaintiff's excessive force claim is addressed, and summarily adjudicated, in the Fourth Amendment Excessive Force section above.

C. Summary judgment is granted as to all of Plaintiff's § 1983 Monell claims against the Oakland Police Department and City of Oakland because Plaintiff failed to establish the existence of a policy, custom, pattern or practice — and because Plaintiff failed to provide admissible evidence to establish that Defendant Officers violated Mr. Boyd's rights.

Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover . . . local governments . . . may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decision making channels.

In the instant case, the Court has found no rights violation, and without an underlying violation of rights, the Plaintiff's derivative Monell allegation is baseless. This alone is more than sufficient grounds for the Court to grant the Defendant's motion for summary judgment against the Plaintiff's Monell claim.

Even assuming arguendo that there were an underlying rights violation in the instant case, Plaintiff failed to establish the existence of a policy or practice, custom, or pattern of conducting or condoning public strip searches. Without such evidence, the Plaintiff's Monell claim cannot survive summary judgment.

Here, Plaintiff's first attempt to provide admissible evidence of the requisite policy or practice is to ask the Court "to take Judicial Notice of the current class action now pending in the Northern District for field strip searches." Pl. Opp. to SJ at 2: 7-9. Under FRE 201, judicial notice may be taken of adjudicative facts that are in issue in a case if those adjudicative facts are not subject to reasonable dispute because they are "generally known" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Korematsu v. U.S., 584 F.Supp. 1406, 1414 (N.D. Cal. 1984); Fed.R.Evid. 201.

The existence of another lawsuit in which an alleged custom, policy or practice is at issue cannot be said to be an adjudicative fact that is "not subject to reasonable dispute." Rather, this alleged fact is very much in dispute. Thus, this Court declines Plaintiff's request to take judicial notice of the indicated legal action under FRE 201, for the purposes of establishing a policy, custom, or practice for the purposes of Plaintiff's Monell claim.

Second, as evidence of a policy or practice, the Plaintiff offers Chief Word's deposition testimony and a copy of the Oakland Police Department's policies regarding searches. PI. Opp. To SJ at 4: 11-25.

Plaintiff asserts that,

Chief Word testified that the Strip Search policy in effect at the time was flawed in that it was interpreted as allowing officers to conduct strip searches on the public streets without clear guidelines. The policy in effect is attached as Exb.[4], to Exb.D, Trans. p. 32:11-15 herein. He testified that the problem with the policy was that officers did not understand that removing a suspect's clothing in a public area constituted a strip search.

Pl. Opp. to SJ at 4: 11-25.

The Plaintiff's cited page number and lines were not accurate. However, a review of the deposition transcript revealed that what Chief Word stated was not, as the Plaintiff characterized it, that the department's policy was flawed and that officers did not understand that removing a suspect's clothing in the street was a strip search. Rather, Chief Word stated that after receiving "two or three" complaints of inappropriate public strip searches from the head of the Citizens Police Review Board, he ordered the head of Internal Affairs to clarify the departmental policy. Exhibit D 18:3 through 21:14. Chief Word stated that he did so because he thought that "[n]ot [every officer] fully understood that if you altered the outer clothing to look at undergarments, not even to look at the skin underneath the undergarments, but just look at the undergarments, that by law constituted a strip search." Exhibit D, 21: 7-14.

Chief Word explained that the department clarified its written policy on strip searches by adding to both the definition of a strip search and to criteria for officers to consider when they thought that a strip search in the field was justified. See Exhibit D 21:15-24. He also stated that he didn't recall the exact language of the policy, but that strip searches were to be conducted at the jail, unless an officer had a documented justification for conducting the search in the field. See Exhibit D 25: 12-24.

The full wording of the department's policy can be found in Plaintiff's Exhibit 4, which is a copy of the written policy, acknowledged by Chief Word in his deposition. See Exhibit 4 within Exhibit D; Exhibit D 32:11.15. This policy makes it clear that a strip search "must be conducted in a private area where it cannot be observed by persons not participating in the search" and inter alia, the suspect must be under arrest and ultimately booked; the offense must involve weapons, controlled substances, or violence; and the search must be conducted by an officer of the same sex as the suspect. See Exhibit 4 within Exhibit D, the page entitled "Oakland Police Department, Searching Persons, 30 Sept 98, Index No. I-0.2."

A reading of Chief Word's deposition and the department's official written policy reveals that a strip search is allowed only under certain circumstances which must be justified and documented by the officers, and must follow specific guidelines which include that it "must be conducted in a private area where it cannot be observed by persons not participating in the search" — meaning not in public. Both the deposition testimony and the written policy support the conclusion that the department had an official policy against public strip searches. By asserting otherwise, the Plaintiff mischaracterizes the evidence.

As to the existence of a pattern, custom, or practice of condoning or allowing public strip searches, Chief Word's statements and Exhibit 7, the newspaper article discussed in that deposition, are the relevant sources. Contrary to Plaintiff's assertions, Chief Word at his deposition refutes the claim that the department had any such pattern, custom, or practice. In fact, he testified that when two or three complaints of inappropriate strip searches were received, the department acted immediately to clarify its policy regarding strip searches and ensure that officers understood that policy. Contrary to Plaintiff's assertions, this testimony is evidence that the department had a custom, pattern, and practice against public strip searches.

Plaintiff also asserts that the newspaper article, in which Chief Word was interviewed regarding strip searches, constitutes an acknowledgment by Chief Word that "there was a longstanding and problematic practice of conducting strip searches in the field." Pl. Opp. to SJ at 4: 22-23 (citing to Exhibit 7 within Exhibit D).

"[N]ewspaper articles have been held inadmissible hearsay as to their content . . ." Larez v. City of Los Angeles, 946 F.2d 630, 642-43 (9th Cir. 1991). A statement is not hearsay if it is the party's own statement in either an individual or a representative capacity. Fed.R.Evid. 801(d)(2).

The article stated the following, in relevant part.

A new strip search policy drafted last week directs officers to take suspects to private areas — such as the jail or restrooms — if they want to check them thoroughly, Word said. "You can't search somebody in the street," he said. "I don't think that was clear to the rank and file . . . I don't think the general public understands when we say strip search. They think we took all his [Cammerin Boyd's] clothes off on the street, and that's not the case."

Plaintiff's Exhibit 7 within Exhibit D.

Is the newspaper article admissible as evidence? In Chief Word's deposition, Ms. Boyd asked whether he made the above statements to the reporter, Henry Lee, and Chief Word replied that he did. Exhibit D, 71: 18-24. Given Chief Word's admission that these were his words, these quotes from the newspaper article are admissible under FRE 801(d)(2) as an admission of a party opponent.

In his deposition, prompted by questions from Ms. Boyd, Chief Word explained his statements in the newspaper article. See e.g. Exhibit D 72:3-7, 24-25; 73: 1-2. Ms. Boyd asked, referring to the quote that Cammerin Boyd's clothing was not removed, "[w]hat did you base that information on to make that quote?" Id. at 72: 8-9. Chief Word replied "[m]y discussions with my staff. And what they told me actually occurred was not some full-blown stripping off of clothes and searching the body." Id. at 72:10-12. As discussed above, in the section on admissibility, Chief Word's statements actually refute the allegation that Cammerin Boyd was publicly strip searched. Chief Word's testimony goes on to state that the department had begun an investigation into the allegations, and had begun a review and revision of its policy relating to searches. As argued above, and contrary to the assertions of Plaintiff, this testimony is evidence against the existence of a custom, practice, or pattern of condoning public strip searches.

In summary, an examination of Plaintiff's offer of proof reveals either that what is asserted is not evidence, or that Plaintiff mischaracterizes what constitutes evidence. The Court cannot take judicial notice of a fact at issue in another proceeding to serve as evidence of the same matter at issue in the present proceeding. Nor do Chief Word's deposition testimony, the departmental policy, or the newspaper article provide support for the Plaintiff's allegation that the department and city had a policy, pattern, custom, or practice of conducting or condoning public strip searches. This leaves Plaintiff with allegations alone, which are insufficient to survive summary judgment.

Plaintiff failed to provide evidence to support allegations that Defendant Officers actually violated Mr. Boyd's rights. With no proof of an underlying rights violation, Plaintiff's derivative Monell claim is baseless. In addition, given the lack of evidence of a policy or practice, the Defendants' motion for summary judgment is granted as to Plaintiff's § 1983 Monell claim against Defendants Oakland Police Department and City of Oakland.

D. Defendants' motion for summary judgment is granted as to Plaintiff's Conspiracy claim because Plaintiff provided neither argument nor evidence to defeat summary judgment on this claim.

In order to establish a prima facie claim of Conspiracy by Defendants, Plaintiff must establish all of the following elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons equal protection of the laws; (3) an act in furtherance of the conspiracy; or (4) injury.

Plaintiff's motion in opposition to summary judgment points to no admissible evidence regarding the Conspiracy claim, nor does Plaintiff's motion even make any argument in favor of this claim. Given that Plaintiff failed to provide any evidence to support the Conspiracy claim, summary judgment as to the claim of Conspiracy is granted.

E. Summary judgment is granted as to Plaintiff's Negligence claim because Plaintiff failed to provide any evidence or argument to defeat summary judgment on this claim.

In order to establish a prima facie claim of Negligence by the Defendants, Plaintiff must establish all of the following elements: (1) the Defendants had a legal duty to conform to a standard of conduct to protect the Plaintiff, (2) the Defendant failed to meet this standard of conduct, (3) the Defendant's failure was the proximate or legal cause of the resulting injury, and (4) the Plaintiff was damaged. Ladd v. County of San Mateo, 12 Cal.4th 913, 917 (1996). Under the standards for summary judgment, Plaintiff must provide admissible evidence sufficient to raise a triable issue of material fact in order to survive summary judgment. Given that Plaintiff failed to provide any evidence to support this claim, summary judgment as to the claim of Negligence is thus granted.

F. Summary judgment is granted as to Plaintiff's claim of Assault and Battery because Plaintiff provided no evidence to raise a genuine issue of material fact to defeat summary judgment on this claim.

To establish a claim of Assault and Battery, Plaintiff must prove that: (1) Defendant Officers touched Mr. Boyd with the intent to harm or offend him, (2) Mr. Boyd did not consent to the touching, and (3) Mr. Boyd was harmed or offended by Defendant Officers' conduct. Ashcraft v. King, 228 Cal.App.3d 604, 611 (1991). Where a police officer is the defendant, the plaintiff must also prove unreasonable force as an additional element of these claims. Edson v. City of Anaheim, 63 Cal.App. 4th 1269, 1272 (1998).

In Plaintiff's opposition to summary judgment, the closest the Plaintiff came to arguing or identifying the evidence in support of the Assault and Battery claim was in the statement of facts section of Plaintiff's brief. This section states that Mr. Boyd told his attorney "how the officers humiliated him, used excessive force, and assaulted him by doing a body cavity search on him" in public. Pl. Opp to SJ at 4: 4-5. However, there is no citation to any admissible evidence. Plaintiff must provide admissible evidence sufficient to raise a triable issue of material fact in order to survive summary judgment. Mere allegations are not sufficient. Given that Plaintiff failed to provide any admissible evidence to support the Assault and Battery claim, summary judgment as to that claim is granted.

G. Summary judgment is granted as to Plaintiff's claims of Intentional and Negligent Infliction of Emotional Distress because California's survivor statute bars a deceased plaintiff's successor in a lawsuit from recovering emotional distress damages, and because Plaintiff failed to provide admissible evidence to establish a genuine issue of material fact as to the requisite elements.

To prevail on a claim for Intentional and Negligent Infliction of Emotional Distress, Plaintiff must establish: (1) outrageous conduct by the defendants; (2) intent to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Agarwal v. Johnson, 25 Cal.3d 932, 946 (1979), overruled on other grounds, White v. Ultramar, Inc., 21 Cal.4th 563 (1999).

The California survivor statute, section 377.34 of the Code of Civil Procedure, bars successors in a lawsuit from recovering damages for a deceased plaintiff's emotional distress. Cal.Code.Civ. Proc § 377.34.

Cammerin Boyd filed suit on July 21, 2003, and died of causes unrelated to this lawsuit in May of 2004. Pursuant to California Code of Civil Procedure section 377.34, the Estate of Cammerin Boyd — which is the successor to Mr. Boyd and the substituted Plaintiff in this case — may not recover damages for any alleged pain and suffering or emotional distress experienced by Cammerin Boyd before his death. Therefore, Plaintiff's claims of Intentional and Negligent Infliction of Emotional Distress are barred by section 377.34. Moreover, Plaintiff failed to provide admissible evidence to establish a genuine issue of material fact regarding the requisite elements in order to survive summary judgment. Thus, this Court grants Defendant's motion for summary judgment as to Plaintiff's state law claims of Intentional and Negligent Infliction of Emotional Distress.

Mere allegations are insufficient to survive summary judgment, which provides another basis upon which this Court grants the Defendant's motion for summary judgment as to the Plaintiff's claim for Intentional and Negligent Infliction of Emotional Distress.

H. Summary judgment is granted as to Plaintiff's cause of action for False Arrest and False Imprisonment because Plaintiff provided no admissible evidence to demonstrate a genuine issue of material fact sufficient to defeat summary judgment on this claim.

"False arrest and false imprisonment are not separate torts. False arrest is but one way of committing a false imprisonment, and they are distinguishable only in terminology." Collins v. City County of San Francisco, 50 Cal.App.3d 671, 673 (1975). To establish a claim of false arrest or false imprisonment, Plaintiff must prove: (1) Defendants intentionally deprived Mr. Boyd of his freedom of movement by use of physical barrier, force, or threat of force, or other unreasonable duress, (2) without Mr. Boyd's consent, (3) which harmed Mr. Boyd, and (4) that the harm was substantially caused by the Defendants' conduct. Fermino v. Fedco, Inc., 7 Cal.4th 701, 715-16 (1994).

Here, Plaintiff's attorney argues that "the Fourth Amendment prohibits strip searches of persons arrested for minor offenses . . . In this case Mr. Boyd was falsely cited, placed under arrest and strip search[ed] for minor traffic violations alleged as `not having a driver's license', `not having insurance' and `not having registration.'" Pl. Opp. To SJ at 7: 18-23. Counsel also asserts that the evidence is disputed as to whether Defendant Officers had "probable cause" to stop Mr. Boyd. Id. at 24.

The only admissible evidence in support of Plaintiff's false arrest and false imprisonment claim are Plaintiff's Exhibits A and B, discussed above, which are respectively a traffic citation and a towed vehicle report. See Pl. Opp. to SJ, Exhibits A-B. These documents provide corroborating evidence for the assertion that Cammerin Boyd was cited by the police and his car towed. However, they do not show that Mr. Boyd was mistreated or treated unreasonably by police. Despite ample time for discovery, Plaintiff failed to produce any witnesses or admissible evidence to that end. Thus, Plaintiff's counsel has failed to fulfill the requisite elements for Plaintiff's claim of False Arrest and False Imprisonment.

Given that mere allegations are insufficient to establish a genuine issue of material fact in summary judgment, this Court hereby grants Defendants' motion for summary judgment as to Plaintiff's state law Tort claim of False Arrest and False Imprisonment.

Order

For all the above reasons, Defendants' motion for summary judgment is hereby granted. Judgment on all causes of action shall be entered for Defendants. Plaintiff shall take nothing on its complaint. The clerk shall close the file.

IT IS SO ORDERED.