Opinion
NO. CIV. S-05-2167 FCD KJM.
July 26, 2007
MEMORANDUM AND ORDER
This matter comes before the court on defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes the motion. For the reasons set forth below, defendants' motion is GRANTED in part and DENIED in part.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. L.R. 78-230(h).
BACKGROUND
Unless otherwise noted, the facts herein are undisputed. (See Pls.' Am. Separate Stmt. of Undisp. and Disp. Material Facts in Opp'n to Defs.' Mot. ("UF"), filed June 22, 2007). Where the facts are in dispute, the court recounts plaintiff's version of the facts. (See Pls.' Separate Stmt. of Disp. Facts in Opp'n to Defs.' Mot. ("DF"), filed June 22, 2007).
Defendants object to various pieces of evidence that plaintiff presents in support of his motion. Much of the evidence that defendants object to is immaterial to the court's analysis of the summary judgment motion. To the extent that the evidence is relevant, defendants' objections are OVERRULED.
This case arises out of defendants' execution of a search warrant, during which plaintiff Stuart Martin ("Martin") was shot. On November 2, 2004, a search warrant for stolen weapons was executed at the residence located at 820 Tahoe Keyes Boulevard, South Lake Tahoe, California. (UF ¶ 1). The search warrant was written by defendant Shannon Norrgard ("Norrgard"). (UF ¶ 2). Both South Lake Tahoe Police and officers of the organization known as SLEDNET were executing the search warrant. (UF ¶ 4). SLEDNET is an inter-agency task force team that focuses on drug and narcotics crimes. (UF ¶ 5).
On the morning of November 2, 2004, there was a briefing prior to the execution of the search warrant. (UF ¶ 8). During the briefing, numerous items were discussed, including the location of the residence, the items to be searched, and the assignments of officers upon approach of the house. (UF ¶ 9). It was decided that a "flash bang" diversionary device would be deployed in the execution of the search. (UF ¶ 14).
Plaintiff asserts that South Lake Tahoe Police Department ("SLTPD") personnel were not trained to execute a search warrant with the use of a diversionary device and that SLEDNET did not instruct SLTPD officers on how the device was going to be deployed. (DF ¶ 1). Plaintiff also contends that surveillance of a house should be done prior to executing a search warrant, but neither SLTPD nor SLEDNET conducted surveillance prior to the execution of the warrant on November 2, 2004. (DF ¶¶ 2-6).
Officers arrived at 820 Tahoe Keys Boulevard during the morning hours. (UF ¶ 16). Defendant Jeff Reagan ("Reagan") was assigned to cover the front carport area of the residence with defendants Brad Williams ("Williams") and Donna Kingman ("Kingman"). (UF ¶ 18). The car port had a lot of "junk" in it. (UF ¶ 17). Williams was assigned to cover the front carport area of the residence and the door that led into the home. (UF ¶ 19). He was positioned approximately 25 feet from the door, and could watch the interior through the open door. (UF ¶¶ 21-22). Williams used a pine tree and a group of trashcans for cover in case shots were exchanged. (UF ¶¶ 22-23; DF ¶ 10). Williams held his firearm in a "low ready position." (UF ¶ 25). Reagan covered the left side of the carport area, taking cover behind an overturned fiberglass shower stall. (UF ¶ 27). Defendants assert that the shower stall did not offer much cover if shots were to be exchanged. (UF ¶ 28). Plaintiff contends that while Reagan's upper body was exposed above the shower stall, he could have crouched down behind it. (UF ¶ 28). Reagan was in the most "forward" position of the three officers and was concerned about the possibility of being shot. (UF ¶¶ 29-30).
Task Force Commander Chris Elliott of SLEDNET deployed the "flash bang" diversionary device. (UF ¶ 14). There was a "knock and announcement" after the device was deployed, but before the gunshot. (UF ¶ 35). Plaintiff ran toward the doorway leading to the carport. (UF ¶ 37). In his hand, he was carrying a dark blue bandana with some white print on it. (UF ¶ 39; Dep. of Stuart Martin ("Martin Dep.") at 30:24-31:2).
Plaintiff contends that SLEDNET was in the middle of the knock/notice when the gunshot was heard. (UF ¶ 35). However, the testimony cited by plaintiff provides that the gun shot was heard "after at least one time knock and notice was given." (Dep. of Chris Elliott ("Elliott Dep.") at 37:11-12).
Williams heard the "flash bang" device go off as a loud boom, but did not jump or react in any way. (UF ¶¶ 33-34). Williams first saw plaintiff as he was in the process of exiting the door. (UF ¶ 44; Dep. of Phillip Bradley Williams ("Williams Dep.") at 57:15-16). Plaintiff was running fairly straight, at a slight angle, toward Williams or the street. (UF ¶ 45; Williams Dep. at 57:21-22). Williams believed he saw a fire-arm that looked like a semi-automatic in plaintiff's hand. (UF ¶ 49; Williams Dep. at 52:14-18). Williams testified that he saw plaintiff turn, look at Reagan, and raise his right arm up to shoulder height. (Williams Dep. at 59:4-24). Williams believed that the officers were in danger and that plaintiff was going to kill Reagan. (UF ¶ 55). Williams fired a round at plaintiff, (Williams Dep. at 51:22-23), and plaintiff fell down immediately upon being shot. (UF ¶ 51). Defendants contend that a bandana and pipe were found on the ground near plaintiff. (UF ¶ 40).
After the "flash bang" device was detonated, Reagan heard someone running through the house and saw plaintiff run through the door. (UF ¶¶ 59-60; Reagan Dep. at 37:11-38:13). Reagan saw plaintiff holding something dark colored that was protruding from his hand as he was running out of the residence. (UF ¶ 42; Dep. of Jeffrey Reagan ("Reagan Dep." at 50:8-18). Reagan believed that plaintiff was holding the item in a threatening manner and thought it was a gun. (UF ¶ 43; Reagan Dep. at 50:14-51:6). Reagan prepared to engage him. (UF ¶ 63). One shot was fired, and plaintiff was shot. (UF ¶¶ 66-67). Reagan heard the gunshot after plaintiff had already crossed his vision. (UF ¶ 61).
Plaintiff "disputes" this fact, but the evidence cited to does not contradict defendants' evidence. Where there are other such "disputed" facts without citation to evidence that raises a triable issue, the court will treat such facts as undisputed.
Plaintiff asserts that he did not have a gun in his hands. (DF ¶ 19). Plaintiff contends that he had both hands together in front of him when he came running out of the house, and that he did not make eye contact with Williams or look at Reagan. (UF ¶ 53; DF ¶¶ 17-18). Plaintiff also asserts that he made it to the side doorway, and the next thing he knew, he was on the ground, "twisted." (UF ¶ 52).
Plaintiff contends that after he was shot and after the house was secured, defendant Scott Heng ("Heng") went around to the carport. (UF ¶ 88; DF ¶ 34). Heng saw plaintiff lying on the carport, and plaintiff told Heng "you f***ing shot me." (UF ¶ 88). Heng told plaintiff that he didn't shoot him and to shut up. (UF ¶ 88). Heng also said "Hi Stuie" to plaintiff; plaintiff knew Heng from being a high school cop. (UF ¶¶ 88; 91). Heng commanded plaintiff to open his hand, but plaintiff was unable to do so. (DF ¶ 35). Subsequently, Reagan pulled the bandana out of plaintiff's hand. (DF ¶ 36).
Plaintiff was arrested for violation of Penal Code §§ 69 and 148(A)(1). (UF ¶ 72). He received medical treatment in the carport area after being handcuffed following the incident. (UF ¶ 73). After approximately thirty minutes, plaintiff was transported by ambulance to the Emergency Room at Barton Memorial Hospital. (UF ¶ 74). Subsequently, he went to the El Dorado County Jail, where he was released after approximately ten hours. (UF ¶¶ 77-78).
Defendant Josh Adler ("Adler") was a part of the "stack" making entry after deployment of the "flash bang" device. (UF ¶ 81). Defendant Heng was also part of the "stack" making entry after deployment of the "flash bang" device. (Dep. of Scott Heng ("Heng Dep.") at 24:18-20). Defendant Brandon Auxier ("Auxier") was assigned to cover the rear of the residence. (UF ¶ 82). Defendant Kingman was stationed in the front of the residence near the carport area, and was to cover the window for safety. (UF ¶¶ 84-85). Kingman did not see plaintiff come out of the house and get shot. (DF ¶ 30). Defendant Norrgard was assigned to behind the perimeter fence in the back of the residence. (UF ¶ 90).
On October 27, 2005, plaintiff filed a complaint, alleging violations of his constitutional rights under the Fourth, Sixth, and Fourteenth Amendments based upon the use of excessive force and unreasonable search and seizure. Plaintiff brings these constitutional claims pursuant to 42 U.S.C. § 1983. Plaintiff also brings state law claims under the Bane Civil Rights Act and for assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, and negligence. On May 15, 2007, defendants filed a motion for summary judgment, or in the alternative, summary adjudication.
On June 15, 2007, defendants filed objections to plaintiff's filings in opposition to their motion for summary judgment on the basis that they were out of compliance with the Local Rules for various reasons. By minute order, the court sustained the objections and plaintiff's filings were stricken. Plaintiff was allowed to re-file his submissions by June 22, 2007 at 4:00 p.m. On June 29, 2007, defendants again objected to plaintiff's filings. Specifically, defendants point to plaintiff's failure to electronically file copies of his exhibits. However, plaintiff filed courtesy copies of these exhibits with the court and has subsequently filed them electronically. Defendants also assert that plaintiff's filings were untimely because they were filed up to forty-eight minutes late. The court finds no prejudice from this delay. Defendants' objections are OVERRULED, and their motion to strike plaintiff's filings is DENIED.
STANDARD
Summary judgment is appropriate when it is demonstrated that there exists 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); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, id. at 251-52.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 289. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'"Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 586-87.
ANALYSIS
I. 42 U.S.C. § 1983
In his complaint, plaintiff alleges that defendants violated his rights pursuant to 42 U.S.C. § 1981. (Compl. ¶ 39). However, plaintiff fails to address the merits of this claim in his opposition or make any argument that he was discriminated against on the basis of race. Therefore, plaintiff's § 1981 claim is DISMISSED.
42 U.S.C. § 1983 provides, in relevant part, that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." Section 1983 confers no substantive rights itself, but rather, "provides remedies for deprivations of rights established elsewhere." City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).
A. Fourth Amendment
Plaintiff Martin brings claims against the individual defendant officers, the SLTPD, and the City of South Lake Tahoe pursuant to 42 U.S.C. § 1983 for violations of his Fourth Amendment right to be free from excessive force and unreasonable search and seizure. Defendants move for summary judgment on the ground that the claims fail as a matter of law and that the officers are entitled to qualified immunity.
1. Excessive Force against the Individual Defendants
Plaintiff Martin contends that the individual officers violated his Fourth Amendment rights by using excessive force. Plaintiff's claim arises out of defendant Williams' conduct in shooting plaintiff. Plaintiff has failed to identify or present evidence regarding the use of any force upon him by any other named individual defendant. See Jones v. Williams, 297 F.3d 930, 939 (9th Cir. 2002) ("We reject the idea that mere presence at a search of membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under section 1983."). As such, defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and Reagan's motion for summary judgment regarding plaintiff's claims for excessive force in violation of the Fourth Amendment is GRANTED.
Defendant Williams argues that plaintiff's claims for excessive force against him should be dismissed because his complaint alleges that "Detective Brian Willson" and/or "Detective Brian Williams" shot plaintiff and violated his rights. (Compl. ¶¶ 28, 32). Defendant argues that plaintiff's failure to amend the complaint to correct his alleged error is prejudicial because it negates his Answer to the complaint. Plaintiff asserts that he mistakenly referred to defendant Williams as "Brian Willson" and "Brian William" in the allegations of the complaint. Plaintiff requests that the court permit him to amend the complaint to strike those names and correctly replace it with the name of the defendant, Brad Williams.
Plaintiff's motion to amend the complaint to cure his mistake regarding defendant's name is governed by Rules 15 and 16 of the Federal Rules of Civil Procedure. Rule 16 provides that a party seeking amendment to a pretrial scheduling order demonstrate good cause. Fed.R.Civ.Proc. 16 (West 2007). Rule 15 provides that "leave [to amend] is to be freely given when justice so requires." Fed.R.Civ.Proc. 15 (West 2007). "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
There is no evidence before the court that the requested modification of the complaint would prejudice defendant Williams in this litigation. The modification does not change the parties to this action. Since the inception of this litigation, defendant Williams has been a named defendant; there has never been a served defendant named Brian Willson or Brian Williams. Further, there appears to have been no confusion during the course of discovery that defendant Brad Williams shot plaintiff; defendants admitted as such in their Response to Plaintiff's Request for Admissions. (Ex. 19 to Decl. of Christopher W. Goodroe in Opp'n to Defs.' Mot. for Summ. J. ("Goodroe Decl."), filed June 22, 2007, at 3). Defendants merely contend that they "would have had the opportunity to file an Answer to the Amended Complaint setting forth the proper admissions, denials, and affirmative defenses." (Defs.' Further Reply to Pl.'s Opp'n, filed June 29, 2-7, at 5). However, defendants fail to identify, in any meaningful way, how this amended Answer would have changed the scope of the litigation. Rather, the court finds that plaintiff's proposed modification does not substantively change the nature of this litigation. As such, the court finds good cause to amend the pretrial scheduling order to allow plaintiff to amend the complaint solely to correct the asserted mistake regarding defendant Williams' name in the allegations of the complaint. See also 59 Am. Jur. 2d Parties § 409 ("Under modern practice, if the right party is before the court, although under a wrong name, an amendment to cure a misnomer of parties will be allowed. . . . Corrections of misnomers are permitted under Fed.R.Civ.Proc. 15(c).). Therefore, defendant Williams' argument that summary judgment should be granted based upon plaintiff's allegation that he was shot by Brian Willson and/or Brian Williams fails.
Plaintiff Martin argues that defendant Williams violated his constitutional rights by using excessive force against him during the execution of the search warrant. Whether a law enforcement official used excessive force is properly analyzed under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 388 (1989).
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 interests at stake.Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The reasonableness of a particular use of force must be evaluated from the perspective of a reasonable officer on the scene. Id. A proper application of the reasonableness inquiry
requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.Robinson v. Solano County, 278 F.3d 1007, 1013-14 (9th Cir. 2002) (internal quotations omitted); see also McKenzie v. Lamb, 738 F.2d 1005, 1011 (9th Cir. 1984) (the determination requires the analysis of factors such as "the requirements for the officers' safety, the motivation for the arrest, and the extent of the injury inflicted").
Defendant Williams argues that the level of force used while executing the warrant was reasonable under the circumstances. Defendant Williams also argues that even if the force was in some way excessive, he is protected from liability under the doctrine of qualified immunity. The doctrine of qualified immunity protects from suit government officers who do not knowingly violate the law. Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994). Qualified immunity is a generous standard designed to protect "all but the plainly incompetent or those who knowingly violate the law." Burns v. Reed, 500 U.S. 478, 495 (1991) (citation omitted). A law officer can establish qualified immunity by demonstrating (1) that the law governing the officer's conduct was not clearly established at the time of the challenged actions, or (2) that under the clearly established law, an officer could reasonably have believed that the alleged conduct was lawful. See Katz v. United States, 194 F.3d 962, 967 (9th Cir. 1999); Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (observing that police officers "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known").
The question of immunity generally is not one for the jury. Qualified immunity "is an immunity from suit rather than a mere defense to liability." Hunter v. Bryant, 502 U.S. 224, 228 (1991) (citation omitted). Therefore, immunity ordinarily should be decided by the court before trial." Id. However, if a genuine issue of material fact exists regarding the circumstances under which the officer acted, then the court should make the determination after the facts have been developed at trial. Act Up!\Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). The initial inquiry that the court must make to determine whether an official is entitled to qualified immunity is whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The next inquiry is whether the constitutional right was clearly established. Id. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. The salient question is whether the law at the time of the disputed conduct gave defendants "fair warning that their alleged treatment of plaintiffs was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Some of the facts leading to the shooting of plaintiff Martin are undisputed by the parties. Neither plaintiff nor defendant dispute that the SLTPD and SLEDNET were executing a warrant for stolen weapons. (UF ¶ 3). Further, defendant Williams did not tell plaintiff to freeze or stop nor did he identify himself as a police officer when plaintiff appeared in the doorway. (DF ¶ 16).
However, other facts surrounding the circumstances leading to defendant Williams' shooting of plaintiff are in dispute. Defendant Williams contends that he saw a gun in plaintiff Martin's right hand as he was running from the house. Williams testified that when plaintiff had run about three to four feet out of the house, defendant saw him turn and look at defendant Reagan and raise his right arm about shoulder height. (Williams Dep. at 59:4-24). Williams also testified that plaintiff's hand was in a fist, wrapped around the butt of a gun, which resembled a Ruger. (Id.) In contrast, plaintiff contends that when he heard the diversionary device go off, he believed it was a gas line explosion. (Martin Dep. at 22:14-25). Plaintiff testified that he had a blue bandanna in his hand. (Id. at 30:21-23). Plaintiff also testified that after hearing the loud noise from the diversionary device, he ran, made it to the side doorway, and then was immediately "twisted" on the ground from the gunshot. (See id. at 23:5-16).
"Where such disputes [of fact] exist, summary judgment is appropriate only if defendants are entitled to qualified immunity on the facts alleged by the non-moving party." Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (citing Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991)). Therefore, the court must view the disputed facts in favor of plaintiff Martin.
The law is well-established that a police officer may use "deadly force to effect the arrest of a fleeing felon, if under the circumstance, he reasonably believed such force was necessary to protect himself or others from death or serious physical harm. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)). However, a desire to resolve quickly a potentially dangerous situation does not, standing alone, justify the use of force that could cause serious injury. Deorle v. Rutherford, 272 F.2d 1272, 1281 (9th Cir. 2001). "There must be other significant circumstances that warrant the use of such a degree of force at the time it is used." Id. Moreover, the Ninth Circuit has held that an officer's use of deadly force is not lawful where the suspect did not point the gun at the officers and was not facing them when the first shot was fired by the officers. Curnow, 952 F.2d at 325 (denying the defendants' motion for summary judgment and finding that the defendants were not entitled to qualified immunity).
Under plaintiff's version of the facts, he was shot while he ran out of a house because of what he thought was a gas leak explosion. Plaintiff was unarmed and was not advised to freeze or stop by defendant Williams. Plaintiff's version of the facts implicitly asserts that plaintiff did not see the officers and that he did not look at defendant Reagan or raise his arm in a threatening manner. At that time, defendant Williams did not have knowledge that plaintiff had committed or was committing a crime. Cf. Blanford v. Sacramento County, 406 F.3d 1110, 1119 (holding that the defendant officers were entitled to qualified immunity for shooting and severely injuring the plaintiff where the plaintiff, whom defendants knew had committed a crime, was armed with a dangerous weapon, was told to stop and drop it, was warned that he would be shot if he didn't comply, refused to let go of the sword, and raised the sword and grunted). Thus, under plaintiff Martin's version of the shooting, defendant Williams would not have reasonably believed the use of deadly force was lawful because, even if defendant Williams believed plaintiff had a gun, there did not exist other significant circumstances that warranted the use of deadly force. See Curnow, 952 F.2d at 325. Therefore, defendant William's motion for summary judgment regarding plaintiff's § 1983 claims for excessive force in violation of his Fourth Amendment rights is DENIED.
Plaintiff was subsequently arrested pursuant to California Penal Code §§ 148(a) and § 69 for obstructing and resisting the police officers. However, there is no evidence that defendants had reason to believe that plaintiff was committing a crime prior to the incident at issue in this litigation.
2. Unreasonable Search and Seizure against the Individual Defendants
Plaintiff Martin contends that the individual officers violated his Fourth Amendment rights by their unreasonable search and seizure of him. Specifically, plaintiff asserts that defendants arrested him without probable cause.
"Probable cause exists when the police know `reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense.'" United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988)). "In evaluating a custodial arrest executed by state officials, federal courts must determine the reasonableness of the arrest in reference to state law governing the arrest." Pierce v. Multnomah County, 76 F.3d 1032, 1938 (9th Cir. 1996) (internal quotations omitted). California law requires that the court look to the totality of the circumstances known by the officer to decide whether the officer's determination of probable cause was reasonable. See People v. Guajardo, 23 Cal. App. 4th 1738 (1994); Agar v. Superior Court, 21 Cal. App. 3d 24, 29 (1971).
While plaintiff generally asserts that the individual defendants violated his constitutional rights by arresting him without probable cause, aside from defendant Williams, plaintiff fails to identify which individual officers were involved in the arrest. Plaintiff does present evidence that all individual defendants were present at the scene of the alleged violation. However, the Ninth Circuit has held that merely being present at the scene of an alleged unlawful act is an insufficient basis for individual liability under § 1983. Jones, 297 F.3d at 936. As such, because plaintiff has failed to present evidence of defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and/or Reagan's personal involvement in the arrest, a prerequisite to a finding of liability, defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and Reagan's motion for summary judgment regarding plaintiff's § 1983 claims for unreasonable search and seizure in violation of his Fourth Amendment rights is GRANTED.
Because defendant Williams effected the stop of plaintiff through the intrusive means of shooting him, under the circumstances of the case, it is clear that defendant Williams was involved in plaintiff's arrest. See Stevens v. Rose, 298 F.3d 880, 883-84 (9th Cir. 2002) (holding that the defendants had arrested the plaintiff when they gave chase to the plaintiff and tackled him).
Defendant Williams argues that he had probable cause to arrest plaintiff after he ran from the residence where the defendant officers were executing the search warrant. Plaintiff was placed under arrest for violation of California Penal Code §§ 148(a) and § 69. These sections criminalize resisting or obstructing officers in the discharge of their duties. See Cal. Penal Code §§ 148(a), 69 (West 2007). Defendant Williams contends that under his version of the facts, plaintiff's actions following the detonation of the diversionary device gave him reasonable cause to believe that plaintiff was violating these sections. However, under plaintiff's version of the facts, plaintiff Martin merely ran out of the door after hearing a loud bang, which he thought was an explosion, and was immediately shot by defendant Williams without any provocation.
At the time of plaintiff's arrest, the law regarding the fundamental right to be protected from unlawful arrests was clear. Individuals have a right to be free from unreasonable seizures unless there is probable cause to arrest. See MacKinney v. Nielsen, 69 F.3d 1002, 1006 (9th Cir. 1995) (police officer did not have probable cause to arrest an individual pursuant to Penal Code § 148 where officer was in unmarked car, the plaintiff made the plausible claim that he did not know it was the police who gave the order, and the plaintiff's disobedience was only momentary); see People v. Patino, 95 Cal. App. 3d 11, 27 (1979) ("The crime of obstructing or resisting an officer in the performance of his duties, Cal. Pen. Code § 69, would appear to require an act done with the specific intent to interfere with the officer's performance of his duties."). Viewing the facts in the light most favorable to plaintiff, no reasonable officer would have thought there was probable cause to arrest plaintiff based solely on the fact that he ran out of the house after a "flash bang" device was detonated. As such, plaintiff has raised a triable issue of fact regarding whether defendant Williams had probable cause to arrest him, and thus, defendant William's motion for summary judgment regarding plaintiff's § 1983 claims for unreasonable search and seizure in violation of his Fourth Amendment rights is DENIED.
3. Monell Claims against the City and SLTPD
Plaintiff asserts that defendant City of South Lake Tahoe and the SLTPD is liable under § 1983. Under Monell and its progeny, a plaintiff may hold a municipality liable under section 1983 if his injury was inflicted pursuant to city policy, regulation, custom, or usage. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citing Monell, 436 U.S. at 690-91, 694). The existence of a city policy may be established in one of three ways:
First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quotingGillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citations and internal quotations omitted)). Assuming that a plaintiff can establish one of these three circumstances, he must then demonstrate that the municipal policy "caused" the constitutional deprivation. Id. A municipal policy "causes" injury where it is the "moving force" behind the violation. Chew, 27 F.3d at 1444 (citing Monell, 436 U.S. at 690-91, 694).
Plaintiff bases his claims against the City of South Lake Tahoe and the SLTPD on his assertion that they failed to properly train the individual defendants and that such failure was the moving force behind the violation of his constitutional rights. Specifically, plaintiff contends that defendant SLTPD failed to provide any training to its personnel on how to execute a search warrant when using a diversionary device, and as a result, defendant Williams irrationally shot plaintiff without provocation after the device went off. Defendants contend that there no evidence suggesting that the City deliberately failed to train or control its officers as to reactions of individuals to the deployment of a flash-bang device.
Plaintiff's opposition only addresses a theory of Monell liability based upon defendants' alleged failure to train. To the extent plaintiff's complaint alleged other theories as a basis for a Monell claim, plaintiff has failed to support such theories with evidence or argument, and any potential claims arising out of these theories are DISMISSED.
The Supreme Court has stated "that there are limited circumstances in which an allegation of a `failure to train' can be the basis of liability under § 1983." City of Canton v. Harris, 489 U.S. 378, 387 (1989). "[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. at 388. It is insufficient "to prove that an injury or accident could have been avoided if an officer had better or more training." Id. at 390. Rather, liability attaches where
in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in a violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.Id. at 390-91. Moreover, plaintiff must present evidence that "the identified deficiency in a city's training program must be closely related to the ultimate injury." Id. at 391.
Plaintiff's sole proffered evidence in support of his failure to train claim is the deposition testimony of two SLEDNET officers, Brian McGuckin and Chris Elliott, and defendant Norrgard, who stated that they had not been trained to execute a search warrant with the use of a diversionary device. However, plaintiff fails to point to evidence of a program-wide deficiency in training. See Blankenhorn, 485 F.3d at 484-85 ("absent evidence of a `program-wide inadequacy in training,' any shortfall in a single officer's training `can only be classified as negligence on the part of the municipal defendant — a much lower standard of fault than deliberate indifference.'") (quotingAlexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)). Moreover, plaintiff has failed to present evidence that the execution of a search warrant using a diversionary device was a recurring situation that carried with it highly predictable consequences of constitutional violations.See Bd. of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 410 (1997) (holding that the generalized showing of risk arising out of one instance of inadequate screening of an officer's background did not demonstrate conscious disregard of an obvious risk). Finally, plaintiff has failed to proffer any evidence that more or better training would have prevented the alleged constitutional violation in this case. Cf. Johnson v. Hawe, 388 F.3d 676, 686 (upholding the plaintiff's municipal liability claim where the plaintiff submitted the declaration of a law enforcement expert who opined that the Police Department's self-training program amounted to a failure to train police officers about enforcement of the Privacy Act, which was a recurring issue). Therefore, defendants' motion for summary judgment regarding plaintiff's Monell claims arising out of an alleged failure to train is GRANTED.
Neither SLEDNET, nor McGuckin, nor Elliot are named defendants in this action.
Plaintiff has failed to produce any expert testimony regarding the training policies of defendant City of South Lake Tahoe or defendant SLTPD.
B. Fourteenth Amendment Due Process
In his complaint, plaintiff alleges that defendants violated his rights under the Fourteenth Amendment. Plaintiff fails to argue the merits of this allegation in his opposition. The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of . . . property, without due process of law." The Fourteenth Amendment confers substantive due process rights. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992); United States v. Salerno, 481 U.S. 739, 746 (1987); Daniels v. Williams, 474 U.S. 327, 331 (1986).
The Due Process Clause confers both procedural and substantive rights. Armendariz v. Penman, 75 F.3d 1311, 1318 (9th Cir. 1996) (citations omitted). However, procedural due process implicates the principle that "[t]he Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the status of `property' within the meaning of the Due Process Clause." Memphis Light, Gas, and Water Div. v. Craft, 436 U.S. 1, 9 (1978). Plaintiff has failed to address any "property" he was deprived of due to defendants' conduct. As such, the court does not address this claim.
However, the use of substantive due process to extend constitutional protection to economic and property rights has been largely discredited. See generally Gerald Gunther, Constitutional Law at 432-65. Rather, recent jurisprudence restricts the reach of the protections of substantive due process primarily to the liberties "deeply rooted in this Nation's history and tradition." Moore v. East Cleveland, 431 U.S. 494, 503 (1977).Armendariz, 75 F.3d at 1318-19. Further, "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular source of government behavior, `that Amendment, not the more generalized notion of substantive due process' must be the guide for analyzing these claims."Albright v. Oliver, 520 U.S. 266, 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). The Supreme Court has specifically held that where the Fourth Amendment is the source of limitations on the type of conduct challenged by a plaintiff's claims, that Amendment, rather than the more general substantive due process protections guaranteed by the Fourteenth Amendment, must govern the plaintiff's claim. Albright, 520 U.S. at 273; Graham, 490 U.S. at 395; see Armendariz, 75 F.3d at 1321. As such, because the conduct plaintiff alleges occurred is the type of government action that the Fourth Amendment regulates, his substantive due process claim is precluded. Therefore, defendants' motion for summary judgment regarding plaintiff's substantive due process claim is GRANTED.
C. Sixth Amendment
In his complaint, plaintiff alleges that defendants' conduct violated his Sixth Amendment rights. Plaintiff also fails to argue the merits of this claim in his opposition. The Sixth Amendment provides, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ." The Sixth Amendment also provides the right to be informed of the nature and cause of the accusation, to confront adverse witnesses, to have compulsory process for obtaining witnesses, and to have the assistance of counsel. Plaintiff has failed to identify with any specificity how defendants allegedly violated his Sixth Amendment rights. Nor has plaintiff proffered any evidence in support of this claim. Therefore, defendants' motion for summary judgment regarding plaintiff's Sixth Amendment claim is GRANTED.
II. California State Law Claims
Plaintiff also alleged a claim for negligence in his complaint. Defendants moved for summary judgment on this claim, and plaintiff's opposition fails entirely to discuss this claim. The court construes plaintiff's silence on this claim as a non-opposition to defendant's motion. Therefore, defendants' motion for summary judgment regarding plaintiff's negligence claim is GRANTED.
A. The Bane Civil Rights Act against the Individual Defendants
Plaintiff brings claims against all defendants for the excessive and unreasonable use of force in violation of the Bane Civil Rights Act, California Civil Code § 52.1. Section 52.1 provides for a private right of action "if a person . . . interferes by threats, intimidation, or coercion . . . with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution. . . ." Cal. Civ. Code § 52.1 (West 2007). The individual defendants rely upon the same contentions, affirmative, defenses, and points of law in moving for summary judgment on this claim as those relied upon in moving for summary judgment on plaintiff's federal claims. As such, and for the reasons set forth above, defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and Reagan's motion for summary judgment regarding plaintiff's § 52.1 claims for excessive force and unreasonable search and seizure in violation of the Fourth Amendment is GRANTED. Defendant William's motion for summary judgment regarding plaintiff's § 52.1 claims for excessive force and unreasonable search and seizure in violation of his Fourth Amendment rights is DENIED. All individual defendants' motion for summary judgment regarding plaintiff's § 52.1 claims for violations of the Sixth and Fourteenth Amendments is GRANTED.
B. Assault and Battery against the Individual Defendants
Plaintiff alleges state tort claims for assault and battery against all defendants. California assault and battery claims are the counterpart to plaintiff's federal claims for excessive force brought under § 1983. See Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1274 (1988). To sustain a claim of assault and battery against a police officer under state law, plaintiffs must provide evidence that the officer used unreasonable force. Id. ; See Johnson v. County of Los Angeles, 340 F.3d 787, 794 (9th Cir. 2003). For the reasons provided in the court's analysis of plaintiff's § 1983 excessive force claim, plaintiff has raised a triable issue of fact that defendant Williams used excessive force. Therefore, defendant William's motion for summary judgment regarding plaintiff's assault and battery claims is DENIED. However, because plaintiff has failed to raise a triable issue of fact regarding the liability of the other individual defendants for excessive force, defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and Reagan's motion for summary judgment regarding plaintiff's claims for assault and battery is GRANTED.
While the Edson court addressed only the state law claim of battery, the court's reasoning can be extended to apply the same standard to the claim of assault. See Johnson v. County of Los Angeles, 340 F.3d 787, 794 (9th Cir. 2003).
Defendant Williams argues that he is immune from plaintiff's state law claims of assault and battery pursuant to California Government Code §§ 820.2 and 821.6. Section 820.2 provides immunity for police officers' discretionary decisions made during arrests. Cal. Gov't Code § 820.2 (West 2007); Blankenhorn, 485 F.3d at 487. However, it is well established that "this provision does not apply to officers who use unreasonable force in making an arrest." Blankenhorn, 485 F.3d at 487 (citingScruggs v. Haynes, 252 Cal. App. 2d 256 (1967); Robinson v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002)). Because plaintiff's claim against defendant Williams arises out of the alleged use of force against him, defendant Williams is not entitled to immunity pursuant to § 820.2.
Defendant Williams also asserts that § 821.6 immunizes him from liability for his conduct. Section 821.6 provides that
[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.
"The provision's principal function is to provide relief from malicious prosecution." Blankenhorn, 485 F.3d at 487-88 (citingKayfetz v. California, 156 Cal. App. 3d 491 (1984)). This immunity extends to actions taken in preparation for formal proceedings, including actions incidental to the investigation of crimes. Amylou R. v. County of Riverside, 28 Cal. App. 4th 1205, 1209-10 (1994); see also Blankenhorn, 485 F.3d at 488 (citingPhillips v. City of Fairfield, 406 F. Supp. 2d 1101, 1118 (E.D. Cal. 2005). Here, the alleged tortious conduct occurred during an arrest, not an investigations into plaintiff's guilt. See Blankenhorn, 485 F.3d at 488. Plaintiff's only relation to the execution of the search warrant was to run out of the house after a diversionary device was set off by SLTPD officers and SLEDNET officers. This case does not present the type of factual circumstances in which § 821.6 has been held to apply. See Karam v. City of Burbank, 352 F.3d 1188 (9th Cir. 2003); Baughman v. State of California, 38 Cal. App. 4th 182 (1995); Amylou R., 28 Cal. App. 4th 1205. As such, defendant Williams is not entitled to immunity pursuant to § 821.6.
Defendant Williams also argues that he is immune from liability pursuant to California Penal Code § 835a, which allows offices to use reasonable force to effect an arrest based upon reasonable cause. Because plaintiff has presented evidence demonstrating triable issues of fact regarding whether the arrest and the force used was reasonable, this section is inapplicable.
C. False Arrest and Imprisonment against the Individual Defendants
Plaintiff also alleges that the individual defendants are liable for false arrest and imprisonment. "[T]he basis for the tort of false imprisonment is the unlawful restraint of another's liberty." Scofield v. Critical Air Medicine, Inc., 45 Cal. App. 4th 990, 1000 (1996). For the reasons provided in the court's analysis of plaintiff's § 1983 unreasonable search and seizure claim, plaintiff has raised a triable issue of fact regarding whether defendant Williams had probable cause to arrest him. Therefore, defendant William's motion for summary judgment regarding plaintiff's false arrest and imprisonment claims is DENIED. However, because plaintiff has failed to raise a triable issue of fact regarding the liability of the other individual defendants for unreasonable search and seizure, defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and Reagan's motion for summary judgment regarding plaintiff's claims for false arrest and imprisonment is GRANTED.
Plaintiffs again argue that defendant Williams is entitled to immunity. For the reasons set forth above, defendant Williams is not entitled to statutory immunity. Further, § 821.6 does not provide immunity for claims of false imprisonment. Amylou R., 28 Cal. App. 4th at 1211 n. 2 (citing Sullivan c. County of Los Angeles, 12 Cal. 3d 710, 719-22 (1974).
D. Intentional Infliction of Emotional Distress against the Individual Defendants
For the reasons set forth above, plaintiff has failed to identify any extreme or outrageous conduct by defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and/or Reagan; therefore, their motion for summary judgment regarding plaintiff's claim for intentional infliction of emotional distress is GRANTED.
Plaintiff also brings claims for intentional infliction of emotional distress arising out of defendant William's use of force. Defendant Williams argues that he is immune from suit pursuant to California Government Code §§ 820.2 and 821.6. For the reasons set forth above in the court's analysis of plaintiff's assault and battery claims, these statutory provisions do not provide immunity for actions arising out of the use of excessive force or arising out of acts that allegedly happened during an arrest. See Blankenhorn, 485 F.3d at 488. Therefore, defendant William's motion for summary judgment regarding plaintiff's claims for intentional infliction of emotional distress is DENIED.
E. Respondeat Superior Liability of the City and SLTPD
Plaintiff claims that the city is liable for all state law tort claims pursuant to the doctrine of respondeat superior. Plaintiff asserts that the officers committed the alleged acts within the course and scope of their employment as police officers for the city, and therefore, the city is vicariously liable. Defendants City of South Lake Tahoe and SLTPD move for summary judgment on the grounds that under Cal. Gov. Code § 815.2(b), a public entity cannot be held liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. Defendants assert that defendant officers are immune under §§ 820.2 and 821.6.
Defendants also argue that a municipality cannot be held liable under California Civil Code § 52.1. Defendants fail to cite to any on-point authority for this contention. Contra Gatto v. County of Sonoma, 98 Cal. App. 4th 744 (2002) (upholding judgment against municipality for liability pursuant to § 52.1).
Cal. Gov. Code § 815.2(a) provides that a city is liable for acts and omissions of its employees under the doctrine of respondeat superior to the same extent as a private employer. Unlike the rule against municipal liability under federal law set out in Monell, California imposes liability on municipalities under the doctrine of respondeat superior. Robinson, 278 F.3d at 1016. Under California law, a city's immunity depends upon whether the police officers are immune. Id. For the reasons provided in the court's analysis of plaintiff's § 1983 claims against defendant Williams, plaintiff has raised a triable issue as to whether defendant Williams, while operating in the course of his employment, used excessive force and unreasonably seized plaintiff Martin. Further, as set forth above, defendant Williams is not immune under California state law. Thus, under Cal. Gov. Code § 815.2(a), liability may flow to defendants City of South Lake Tahoe and SLTPD for defendant William's actions towards plaintiff. Accordingly, defendants City of South Lake Tahoe and SLTPD's motion for summary judgment regarding respondeat superior liability arising out of plaintiff's state law claims is DENIED.
III. Punitive Damages
Finally, defendants move for summary judgment regarding plaintiff's request for punitive damages. Defendants contend that there are no facts upon which plaintiff can support his claim for punitive damages. In § 1983 cases, punitive damages may be assessed "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). Under California law, exemplary damages are allowed where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294 (West 2007). Plaintiff wholly fails to respond to defendant's motion and argument with respect to punitive damages. As such, the court construes plaintiff's silence as a non-opposition to defendant's motion. Moreover, plaintiff has failed to proffer evidence supporting his broad allegations that defendants' actions were willful, reckless, and malicious. As such, defendants' motion for summary judgment regarding plaintiff's claim for punitive damages is GRANTED.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is GRANTED in part and DENIED in part.
(1) Defendants Heng, Adler, Auxier, McGuckin, Norrgard, Kingman, and Reagan's motion for summary judgment regarding all of plaintiff's claims is GRANTED.
(2) Defendant William's motion for summary judgment:
(a) regarding plaintiff's § 1983 claims arising out of alleged Fourth Amendment violations is DENIED.
(b) regarding plaintiff's § 1983 claims arising out of alleged Sixth Amendment violations is GRANTED.
(c) regarding plaintiff's § 1983 claims arising out of alleged Fourteenth Amendment violations is GRANTED.
(d) regarding plaintiff's § 52.1 claims arising out of alleged Fourth Amendment violations is DENIED.
(e) regarding plaintiff's § 52.1 claims arising out of alleged Sixth Amendment violations is GRANTED.
(f) regarding plaintiff's § 52.1 claims arising out of alleged Fourteenth Amendment violations is GRANTED.
(g) regarding plaintiff's state law claims for assault, battery, false arrest, false imprisonment, and intentional infliction of emotional distress is DENIED.
(h) regarding plaintiff's state law claim for negligence is GRANTED.
(i) regarding plaintiff's claim for punitive damages is GRANTED.
(3) Defendants City of South Lake Tahoe and SLTPD's motions for summary judgment:
(a) regarding plaintiff's Monell claims for failure to train is GRANTED.
(b) regarding plaintiff's respondeat superior claims for violations of § 52.1, assault, battery, false arrest, false imprisonment, and intentional infliction of emotional distress is DENIED.
(c) regarding plaintiff's state law claim for negligence is GRANTED.
(d) regarding plaintiff's claim for punitive damages is GRANTED.
Plaintiff's motion to amend the complaint solely to correct the asserted mistake regarding defendant Williams' name in the allegations of the complaint is GRANTED. Plaintiff's amended complaint does not supercede the foregoing order's regarding defendants' motion for summary judgment. Plaintiff is directed to file a first amended complaint within ten (10) days of this order. Defendants may file an amendment to their previously filed answer, reflecting any modifications as it relates to plaintiff's corrections, within ten (10) days thereafter.
IT IS SO ORDERED.