Opinion
No. C 01-2437 CRB (PR)
May 24, 2002
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc #11)
Leroy Atonia Green filed the instant pro se civil rights action for damages under 42 U.S.C. § 1983 alleging that on December 9, 2000, City of Santa Rosa Police Officers Brian Boettger and Gregory Yaeger used excessive force during the course of his arrest. Per order filed on August 27, 2001, the court found that plaintiff's allegations, when liberally construed, stated a cognizable claim for violation of the Fourth Amendment against Boettger and Yaeger and ordered the United States Marshal to serve them. Boettger and Yaeger now move for summary judgment on the ground that there are no material facts in dispute and that they are entitled to judgment as a matter of law. Green did not file an opposition.
The court dismissed Chief of Police Dunburgh because he was named as a defendant solely under a theory of respondeat superior liability. Aug. 27, 2001 Order at 2, n. 1 (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).
FACTUAL BACKGROUND
The undisputed facts in this case are as follows. On December 9, 2000, at approximately 8:05 p.m., Officer Boettger was on patrol when he saw a male subject riding a bicycle without a mounted headlamp or a rear reflector. Officer Boettger stopped the bicyclist, informed him of the reason for the stop and asked for identification. The bicyclist stated that he did not have any ID and then identified himself as Leroy Green, Jr.
Officer Boettger asked Green if he was on probation or parole and Green replied that he was on parole for receiving stolen property. Officer Boettger informed Green that he was subject to search and seizure, and ordered him to interlace his fingers on his head so Boettger could conduct a search. Green complied.
While searching Green, Officer Boettger found a glass smoking pipe wrapped in a white napkin, located in the left inside pocket of the jacket worn by Green. The pipe contained burned residue at the tip and an off-white powdery residue throughout the inside of the pipe. Green stated, "This ain't my jacket . . ." Officer Boettger ordered Green to place his left arm out to his side. From this position, Boettger placed Green's left hand in a twist lock control hold; simultaneously, Green stated, "Ah, man, you're arresting me," and Boettger answered yes.
As Officer Boettger maintained his control hold of Green's left hand, Green suddenly thrust forward and spun his left arm in an attempt to pull away from Boettger's hold. Green thrust across the sidewalk in a northeast direction and into the bushes. At this point, Green broke free of Boettger's hold and turned and punched Boettger in the chest area with his left hand. Boettger grabbed Green's left arm and Green again attempted to escape from this grasp. Boettger maintained his hold on Green's arm and was able to grab him from behind. Officer Yaeger, who had arrived at the scene before the search started, got a hold of Green's jacket as Green, Yaeger and Boettger fell to the ground.
Officers Boettger and Yaeger repeatedly yelled to Green to stop resisting and to put his arms behind his back. When the officers and Green fell to the ground, Officer Boettger landed on top of Green with Green facing the ground. However, Green continued to struggle and refused to put his hands behind his back as ordered. Concerned for everyone's safety, Boettger placed Green in a carotid restraint hold. Green continued to resist and was yelling and screaming as he continued swinging his arms and legs in an attempt to escape.
Officer Yaeger was able to place one handcuff on Green's left hand, but informed Officer Boettger that he could not reach Green's right hand. Boettger then rolled over onto his back with Green now facing upwards. Yaeger still could not place a handcuff on Green, who continued to struggle. Boettger then felt Green's right hand quickly pull on the right side of his gun belt. Boettger could not determine exactly where on his gun belt the pull was coming from, but knew it was near his firearm. Boettger proceeded to punch Green several times on the side of his head with his left hand while maintaining the carotid restraint hold with his right arm. As a result, Green promptly placed his right hand back up towards Boettger's right arm and at this point Boettger advised Yaeger to just remain on top of Green until help arrived. Officers Boettger and Yaeger held Green in position until Officer A. Pehlke arrived and assisted in placing both handcuffs on Green's hands.
A subsequent search of Green's room at a nearby Motel 6 turned up a .9 mm handgun wrapped in a towel. Green was charged in state superior court with possession of a firearm by a felon, Cal. Penal Code § 12021(a), two counts of resisting, by the use of force or violence, executive officers in the performance of their duties, id. § 69, and possession of paraphernalia used for smoking a controlled substance, Cal. Health Safety. Code § 11364. On June 22, 2001, Green pleaded no contest to the charges of possession of a fireman by a felon and resisting, by the use of force or violence, Officer Boettger in the performance of his duty. The other two charges, including resisting Officer Yaeger in the performance of his duty, were dismissed by the state.
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law."Celotex Corp., 477 U.S. at 323.
B. Analysis
Officers Boettger and Yaeger argue that they are entitled to summary judgment because the undisputed facts show that: (1) their actions were objectively reasonable under the circumstances, (2) they are entitled to qualified immunity, and (3) Green's claim is barred by the rationale ofHeck v. Humphrey, 512 U.S. 477 (1994). The court will address the applicability of Heck first.
In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487.
Whenever a state prisoner seeks damages in a § 1983 suit, a district court therefore must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the conviction or sentence has already been invalidated. See id.
Heck generally does not bar claims for use of excessive force during the course of an arrest because such claims rarely imply the invalidity of most subsequent convictions or sentences. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir. 1996). But Green's not yet invalidated conviction under California Penal Code section 69 for resisting, by the use of force or violence, Officer Boettger in the performance of his duty is different.
In order to be convicted under section 69, it must be established that the officer was engaged "in the performance of his duty." Cal. Penal Code § 69. This requires that the officer be engaged in the "lawful" performance of his official duties. Cf. People v. Simons, 42 Cal.App.4th 1100, 1108 (1996).
Here, Green's claim that Officer Boettger used excessive force in the course of his arrest necessarily implies that the arrest was "unlawful" because "it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest" People v. Olguin, 119 Cal.App.3d 39, 45 (1981). A determination that Boettger used excessive force in the course of arresting Green therefore would impermissibly imply that the element of being engaged in the lawful performance of his duty is not satisfied and that the conviction under section 69 is invalid. See Heck, 512 U.S. at 487. Plaintiff's excessive force claim against Boettger is barred under the rationale of Heck and must be dismissed without prejudice. See Edwards v. Balisok, 520 U.S. 641, 649 (1997); Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997).
Accord Combs v. Parris, No. C 01-0957 MMC (PR), 2001 WL 1456625, at **1-2 (N.D.Cal. Nov. 14, 2001); Miller v. Whitney, No. C 00-0995 CRB (PR), 2000 WL 1721063, at **1-2 (N.D.Cal. Nov. 7, 2000); Cook v. Mata, No. C 98-3487 VRW (PR), 1999 WL 605827, at **1-2 (N.D.Cal. Aug. 4, 1999);Nuno v. County of San Bernardino, 58 F. Supp.2d 1127, 1132-35 (C.D.Cal. 1999); Gilmore v. Eubanks, No. C 98-1318 MJJ MED, 1999 WL 144881, at *2 (N.D.Cal. Mar. 10, 1999).
That Green's section 69 conviction resulted from a plea of no contest is of no consequence because, "for purposes of the Heck analysis, a plea of nolo contendere in a California criminal action has the same effect as a guilty plea or jury verdict of guilty." Nuno, 58 F. Supp.2d at 1135. Green's section 69 conviction depends on there being a factual basis for the element of Boettger being engaged in the lawful performance of his duty. Cf. Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (finding that claim for damages for unreasonable blood tests was not barred by Heck where blood evidence was not introduced against the plaintiffs because they pleaded guilty or nolo contendere; even if the plaintiffs proved everything they alleged about the blood draws, a judgment in their favor would not imply the invalidity of their DUI convictions because the convictions did not depend upon the blood draws).
This conclusion is not disturbed by the Ninth Circuit's recent decision in Sanford v. Motts, 258 F.3d 1117, 119-20 (9th Cir. 2001). InSanford, the court found that Heck did not bar the plaintiff's excessive force claim even though she had been convicted of resisting arrest under California Penal Code section 148(a)(1), which also requires the lawful performance of the officer's duties. In Sanford, however, the plaintiff alleged that the defendant police officer punched her in the face after she was arrested and handcuffed. See Sanford, 258 F.3d at 1118. The court of appeals reasoned that such allegations would not necessarily implicate the validity of the plaintiff's resisting arrest conviction because the plaintiff could prove that the officer used excessive force after arresting her without disturbing the lawfulness of the officer's use of force while arresting her. See id. at 1119-20. Here, it is undisputed that the alleged excessive force was used while the officers were trying to restrain and arrest Green. The holding in Sanford does not serve to lift the bar imposed by Heck in this case. Accord Combs, 2001 WL 1456625, at *2.
Green's excessive force claim against Officer Yaeger is not barred byHeck because Green was not convicted under section 69 of resisting Yaeger in the performance of his duty. Yaeger nonetheless argues that he is entitled to summary judgment because the undisputed facts show that his actions were objectively reasonable under the circumstances, and that he is entitled to qualified immunity.
Under the Fourth Amendment, officers may only use such force as is "objectively reasonable" under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). To determine whether the force used was reasonable, courts balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. Id. at 396. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, Id. An excessive force analysis requires evaluating "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.
In addition, the court's consideration of "reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97. Nor every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the Fourth Amendment. Id. at 396.
Under the circumstances described by the undisputed facts, Officer Yaeger's use of force in the course of helping Officer Boettger restrain and arrest Green was objectively reasonable. Green was resisting arrest and attempting to flee. In his efforts to do so, he punched Officer Boettger and even attempted to gain control of Boettger's weapon. Under these circumstances, Officer Yaeger's use of force to help Officer Boettger get Green to the ground and to restrain him there by using the weight of his body until additional help arrived was lawful. Officer Yaeger's admission that he struck Green one time on the left side of his face in an attempt to subdue him while he wrestled with Boettger on the ground does not compel a different conclusion. See, e.g., Saman v. Robbins, 173 F.3d 1150, 1155-57 (9th Cir. 1999) (finding officers split-second judgment to administer a single kick to subdue plaintiff in tense, uncertain and dangerous situation in which one officer had already been shot objectively reasonable as a matter of law). The burden lies with Green to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). He does not.
Although defendants' statement of uncontroverted facts does not state that Officer Yaeger struck Green, Officer Yaeger admits in his declaration that he struck Green "one time on the left side of his face . . . to control him and gain compliance." Yaeger Decl. at 3.
Plaintiff was advised pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), that to prevent summary judgment in favor of defendants he "must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradicts the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial." Aug. 27, 2001 Order at 3-4 (quoting Rand, 154 F.3d at 962-63 (App. A)). "If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you."Id. at 4.
The only evidence Green has set forth are the brief allegations in his complaint. There, he simply alleges that the "two officers" used "excessive force" during the course of his arrest because he was hit in the face and subject to the carotid restraint hold. These conclusory allegations are insufficient to defeat Officer Yaeger's motion for summary judgment. They do nothing to put Yaeger's version of the facts into question and show that there is a genuine issue for trial on Green's claim against Yaeger. See Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (conclusory allegations of excessive force during arrest insufficient to defeat defense motion for summary judgment). Green's allegations do not even show what specific actions of Officer Yaeger caused him injury or harm. Cf. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (conclusory allegations of fault insufficient to defeat summary judgment; plaintiff must set forth specific facts showing that defendant's actions were the "actual and proximate cause" of the deprivation of which plaintiff complains). Officer Yaeger is entitled to summary judgment as a matter of law because Green has not set forth any evidence showing that the there is a genuine issue for trial on his claim against Yaeger. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986);Arpin, 261 F.3d at 922.
Based on the undisputed facts before the court, Officer Yaeger is also entitled to qualified immunity. Yaeger could have reasonably believed that the force he used to assist Officer Boettger restrain and arrest Green under the circumstances did not violate a clearly established constitutional right. See Saucier v. Katz, 121 S.Ct. 2151, 2158-59 (2001) (even if constitutional violation occurred, officer entitled to qualified immunity if he could nevertheless have reasonably but mistakenly believed that his or her conduct did not violate a clearly established constitutional right).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc #11) is GRANTED.The Clerk shall enter judgment in favor of defendants and close the file.
SO ORDERED.