Opinion
CV 14-7366-GW (JEM)
09-24-2020
KARYL CLARKE, Plaintiff, v. CITY OF HAWTHORNE, et al., Defendants.
AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE
The Court submits this Amended Report and Recommendation to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 4, 2015, Karyl Clarke (“Plaintiff”), proceeding pro se and in forma pauperis, filed a First Amended Complaint (“FAC”) against numerous Defendants, including the City of Hawthorne (“City” or “Hawthorne”), the Hawthorne Police Department (“Department”), Police Chief Robert Fager, Lieutenant Peter Goetz, Officer Sarah Lewis, Officer Derek Limacher, Officer Erica Bristow, Officer Jeffrey Salmon, Officer Michael Matson, Detective Christina Chirarello, Officer Andrew Salcido, and Detective Ryan Dreissen. All of the individual named Defendants are employees of the Department and are sued in their individual and official capacities.
On August 11, 2017, Defendants filed a Motion for Summary Judgment (“Motion”). Defendants assert the undisputed material facts establish their conduct was lawful and they are entitled to qualified immunity. On September 29, 2017, Plaintiff filed an Opposition. On October 6, 2017, Defendants filed a Reply.
On September 5, 2018, the Court issued a Report and Recommendation (“R&R”), recommending that the Motion be granted. Thereafter, Plaintiff filed Objections to the R&R, Defendants filed a Response to Plaintiff's Objections, and Plaintiff filed a Reply to Defendants' Response as well as a notice of an unpublished California Court of Appeal decision.
Having considered all of the papers filed in connection with this matter, being fully apprised of the relevant facts and law, and for the reasons set forth below, the Court again recommends that the Motion be granted and this action be dismissed with prejudice.
PLAINTIFF'S CLAIMS
The FAC alleges violations of Plaintiff's civil rights under 42 U.S.C. § 1983 and violations of state law. It sets forth the following Causes of Action:
(1) unlawful arrest and imprisonment under Section 1983 (FAC ¶¶ 78-86);
(2) unreasonable search under Section 1983 (FAC ¶¶ 87-93);
(3) battery under state law (FAC ¶¶ 94-100);
(4) negligent infliction of emotional distress under state law (FAC ¶¶ 101-109);
(5) negligence under state law (FAC ¶¶ 110-117);
(6) failure to protect under Section 1983 (FAC ¶¶ 118-125);
(7) conspiracy under Section 1983 (FAC ¶¶ 126-129); and
(8) “violation of federal civil rights” under Section 1983 (FAC ¶¶ 130-133).
FINDINGS OF FACT
The record, viewed in the light most favorable to Plaintiff, shows the following:
Defendants have filed Objections to Plaintiff's Declaration in Opposition to Motion for Summary Judgment. (Docket No. 152.) Defendants' objections based on relevance, lack of foundation, and speculation are sustained. Defendants' objections that a statement misstates the evidence are sustained. Defendants' objections that a statement is conclusory, asserts a legal opinion, asserts new claims, and consists of inadmissible assertions not supported by facts or evidence are sustained. Defendants' objections based on hearsay are overruled. Defendants' other objections are overruled.
Unless otherwise specified, the material facts outlined below are either expressly undisputed by the parties or have been determined by the Court, upon a full review of the record, to be undisputed by competent evidence. Additional findings of fact are also discussed in connection with particular claims.
On August 6, 2013, Plaintiff drove to Hawthorne while his driver's license was suspended. (Defendants' Statement of Uncontroverted Facts (“SUF”) ¶ 1; Defendants' Compendium of Exhibits (“Comp.”), Ex. B at 24-26, 38-40, 63-64, 104.) He brought a pocket knife with him, as well as other personal belongings. (SUF ¶ 4; Comp., Ex. B at 24, 37-38, 67.) While en route to Hawthorne, Plaintiff called Detective Chirarello to inform her that he was on his way to the residence of his ex-girlfriend Tanika Ortiz, who lived on Cerise Avenue in Hawthorne, in order to confront Ortiz and her boyfriend Antwaine Johnson regarding ongoing child visitation issues. (Comp., Ex. B at 32-33.) Chirarello had been involved in investigating Plaintiff's allegations regarding child visitation issues. (Comp., Ex. B at 31-32.)
The Court's references to the SUF includes the supporting evidence cited by Defendants therein.
Unless otherwise noted, the Court refers to the pages of the documents filed by the parties as they have been numbered by the Court's CM/ECF system.
There is a long history of child custody disputes between Plaintiff and Ortiz that started in about 2006. (SUF ¶ 5; Comp. Ex. B at 28.) There also had been a violent confrontation between Plaintiff and Johnson prior to August 6, 2013. (Comp. Ex. B at 37.)
After Plaintiff arrived at the Cerise Avenue residence, he determined no one was home and he left. (Comp., Ex. B. at 33-34.) He returned about 5:30 p.m. and again called Chirarello. (Comp., Ex. B at 34.) Plaintiff parked underneath the building in the garage and sat in his vehicle. (Comp., Ex. B at 35.) At some point, he detected movement in Ortiz's residence and approached the door to speak with her. (Id.) Johnson then drove up to the residence, and Plaintiff told Ortiz that if she refused to let him see the kids, he would call the police. (Id.) Ortiz refused, and Plaintiff called the Department dispatcher. (Id.) The dispatcher was on the phone with Plaintiff “throughout the whole entire incident.” (Id. at 36.) Plaintiff returned to his vehicle, drove it out of the garage, and parked across the street. (Id. at 38.) A police officer arrived, approached Plaintiff who was sitting in his vehicle, and asked what had happened. (Id. at 38-39.)
Plaintiff was asked to exit the vehicle, and Officer Lewis conducted a patdown search for weapons. (SUF ¶ 20; Comp., Ex. B at 50, 98; Goetz Decl., Ex. B.) Plaintiff's driver's license information was entered into Defendants' California Law Enforcement Telecommunications System (“CLETS”) and/or Mobile Terminal Data System (“MTD”). (Comp., Ex. C at 174.) The inquiry into Plaintiff's driver's license via CLETS/MTD revealed that Plaintiff's driver's license was suspended. (Comp., Ex. B at 121-124; see also Plaintiff's Objections to the R&R, Ex. F, p. COH000007.) Plaintiff was then arrested for driving with a suspended license in violation of Cal. Veh. Code § 14601.1. (SUF ¶¶ 1, 3; Comp., Ex. B at 54, 97, 98, 104.)
Plaintiff testified at his deposition that when he was taken into custody, he stood up and put his hands behind his back. (Comp., Ex. B at 53-54, 91.) An officer took his hands, cuffed him, and took him to a patrol car. (Id. at 91.) There was no argument or struggle during the arrest, and Plaintiff was fully compliant. (Comp., Ex. B at 54.) He claims he suffered some discomfort as a result of having his hands cuffed behind his back due to a pre-existing shoulder injury. (Id. at 75.)
The video of Plaintiff's arrest establishes that no force was used in effecting the arrest. (Goetz Decl., Ex. B.) The video shows that Officer Lewis placed handcuffs on Plaintiff and escorted him to the patrol car. (Id.) There was no conversation and Lewis did not touch Plaintiff during the ride to the police station. (Id.) Once Plaintiff and Lewis arrived at the station, Lewis opened the car door and Plaintiff exited without Lewis touching him at all. (Id.)
Plaintiff has filed several complaints with various departments within the City of Hawthorne, none of which alleged use of force. (SUF ¶ 20-21.)
An inventory and weapons search of the vehicle was conducted in connection with Plaintiff's arrest and his vehicle was impounded. (SUF ¶ 9; Comp., Ex. B at 99, 144-48; Goetz Decl., Ex. B.)
In his deposition, Plaintiff did not identify any falsification of the police report regarding his August 6, 2013 arrest, but instead challenged statements made by third parties that are summarized in the report. (SUF ¶ 7.) Specifically, the portions of the police report that Plaintiff claims were fabricated were statements attributed to Ortiz and Johnson. (SUF ¶ 7.)
Plaintiff was provided with a toilet, bedding, and food during regular meal periods while he was detained following his arrest. (SUF ¶¶ 28, 52.)
APPLICABLE LEGAL STANDARDS
I. SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Material facts are those that affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, ‘‘the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.'' Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (‘‘When the nonmoving party has 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.''') (quoting Celotex, 477 U.S. at 325).
If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d at 1103. 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. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to judgment. See Celotex, 477 U.S. at 323. In addition, if the opposing evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. Plaintiff cannot avert summary judgment by simply raising issues as to the credibility of the moving party's evidence. National Union Fire Ins. Co. v. Argonaut Ins., 701 F.2d 95, 97 (9th Cir. 1983). Although inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), summary judgment cannot be avoided by relying solely on “conclusory allegations [in] an affidavit.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Matsushita, 475 U.S. at 586 (more than a “metaphysical doubt” is required to establish a genuine issue of material fact). “The mere existence of a scintilla of evidence in support of the plaintiff's position” is insufficient to survive summary judgment; “there must be evidence on which the [fact finder] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
The Ninth Circuit has held that the procedural requirements applied to ordinary litigants at summary judgment do not apply as stringently to prisoner pro se litigants. In Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010), district courts were cautioned to “construe liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules strictly.” Id. at 1150. The Ninth Circuit also has observed that “[a]t the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be considered on summary judgment); see also Aholelei v. Hawaii Dept. of Public Safety, 220 Fed.Appx. 670, *1 (9th Cir. 2007) (district court abused its discretion in not considering plaintiff's evidence at summary judgment, “which consisted primarily of litigation and administrative documents involving another prison and letters from other prisoners” that could have been made admissible at trial through the other inmates' testimony at trial).
II. QUALIFIED IMMUNITY
“The doctrine of qualified immunity protects government officials 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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation omitted). “[I]t protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“al-Kidd”) (internal quotation marks and citation omitted).
“Once the official pleads qualified immunity, the burden is on the plaintiff to prove two elements: (1) that the right was violated; and (2) that the right was clearly established at the time of the alleged misconduct.” Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 946 (9th Cir. 2017). A court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); see also Felarca v. Birgeneau, 891 F.3d 809, 815-16 (9th Cir. 2018) (same).
The second element “requires two separate determinations: (1) whether the law governing the conduct at issue was clearly established and (2) whether the facts as alleged could support a reasonable belief that the conduct in question conformed to the established law.” Green v. City and County of San Francisco, 751 F.3d 1039, 1052 (9th Cir. 2014); see also Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (“While the constitutional violation prong concerns the reasonableness of the officer's mistake of fact, the clearly established prong concerns the reasonableness of the officer's mistake of law.”) (emphasis in original); Robinson v. Solano County, 278 F.3d 1007, 1012 (9th Cir. 2002) (en banc) (“[T]he standard of reasonableness for purposes of qualified immunity is distinct from the standard of reasonableness embodied in the Fourth Amendment.”). “Both are questions of law to be determined by the court in the absence of genuine issues of material fact.” Green, 751 F.3d at 1052.
“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) (internal quotation marks and citation omitted). In determining whether a right is clearly established, there does not need to be a “case directly on point, but existing precedent must have placed the . . . constitutional question beyond debate.” al-Kidd, 563 U.S. at 741; see also Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (“For a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate, such that ‘every' reasonable official, not just ‘a' reasonable official, would have understood that the was violating a clearly established right.”) (emphasis, some internal quotation marks, and citation omitted); District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (“The rule's contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”) (internal quotation marks and citation omitted). “This requires a high degree of specificity.” Wesby, 138 S.Ct. at 590 (internal quotation marks and citation omitted). “Thus, the dispositive question is whether the violative nature of particular conduct is clearly established.” Thompson, 885 F.3d at 587 (emphasis in original) (internal quotation marks and citations omitted). Again, “[i]t is the plaintiff who bears the burden of showing that the rights allegedly violated were clearly established.” Shafer v. County of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (internal quotation marks and citation omitted). A plaintiff fails to meet his or her burden of establishing a clearly established right when the plaintiff does not cite “existing precedent” that “places the statutory or constitutional question beyond debate.” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (internal quotation marks and citations omitted); see also White v. Pauly, 137 S.Ct. 548, 552 (2017) (reversing rejection of qualified immunity where appellate court “failed to identify a case where an officer acting under similar circumstances as [defendant] was held to have violated the Fourth Amendment”).
DISCUSSION
I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S FIRST CAUSE OF ACTION FOR UNLAWFUL ARREST AND IMPRISONMENT UNDER THE FOURTH AMENDMENT
Plaintiff claims that his arrest and detention on August 6, 2013, were without probable cause in violation of the Fourth Amendment. (FAC ¶¶ 46-63.) Construing the evidence in the light most favorable to Plaintiff, Defendants are entitled to summary judgment on these claims.
A. Applicable Law
1. Probable Cause to Arrest
An arrest is valid under the Fourth Amendment if it is supported by probable cause. See Virginia v. Moore, 553 U.S. 164, 173 (2008). To determine whether there was probable cause at the time of an arrest, the reviewing court considers "'whether at that moment the facts and circumstances within [the officer's] knowledge . . . were sufficient to warrant a prudent [person] in believing that the petitioner had committed or was committing an offense.'" Edgerly v. City & County of San Francisco, 599 F.3d 946, 953 (9th Cir. 2010) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)); see also United States v. Hartz, 458 F.3d 1011, 1018 (9th Cir. 2006) (“A police officer has probable cause to arrest a suspect without a warrant if the available facts suggest a ‘fair probability' that the suspect has committed a crime.”) (citation omitted). In evaluating probable cause, “[t]he analysis involves both facts and law. The facts are those that were known to the officer at the time of the arrest. The law is the criminal statute to which those facts apply.” Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011).
“[A]n arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citations omitted); see also Whren v. United States, 517 U.S. 806, 813 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."). Thus, the officer's “subjective reason for making the arrest need not be the criminal offense to which the known facts provide probable cause.” Devenpeck, 543 U.S. at 153. “[I]f the facts support probable cause to arrest for one offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different offense as to which probable cause was lacking.” United States v. Lopez-Magallon, 817 F.3d 671, 675 (9th Cir. 2016).
2. California Vehicle Code Provisions
Multiple provisions of the California Vehicle Code are implicated when a person drives without a valid license:
Cal. Veh. Code § 14601.1(a) prohibits driving with a suspended or revoked license when the person has actual or constructive knowledge of the suspension or revocation. It states:
No person shall drive a motor vehicle when his or her driving privilege is suspended or revoked . . . if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the department to the person pursuant to Section 13106.Cal. Veh. Code § 13106(a) provides:
When the privilege of a person to operate a motor vehicle is suspended or revoked, the department shall notify the person by first-class mail, of the action taken and of the effective date thereof, except for those persons personally given notice by the department or a court, by a peace officer pursuant to Section 13388 or 13382, or otherwise pursuant to this code. It shall be a rebuttable presumption, affecting the burden of proof, that a person has knowledge of the suspension or revocation if
notice has been sent by first-class mail by the department pursuant to this section to the most recent address reported to the department . . . . It is the responsibility of every holder of a driver's license to report changes of address to the department . . . .”
In addition, Cal. Veh. Code § 14602.6(a)(1) expressly authorizes a peace officer to arrest a driver and seize the vehicle after the officer determines that the driver has a suspended or revoked license. It states:
Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked, . . . the peace officer may . . . immediately arrest that person and cause the removal and seizure of that vehicle . . . .
Finally, Cal. Veh. Code § 12500 provides that “[a] person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver's license issued under this code . . . .” Unlike Section 14601.1(a), Section 12500 does not req uire the driver to have knowledge that he lacks a valid license. In People v. Spence, 125 Cal.App.4th 710, 712 (2005), the California Court of Appeal held that a defendant could be convicted of violating Section 12500 even if he did not know that his license was suspended. The court expressly rejected the defendant's due process argument and declined to read a knowledge element into the statute. Id. at 722-23.
B. Analysis
Defendants are entitled to qualified immunity on Plaintiff's claims that his arrest and detention violated the Fourth Amendment. The competent evidence, construed in the light most favorable to Plaintiff, demonstrate that his arrest did not violate the Fourth Amendment. Moreover, even assuming a constitutional violation, the officers' conduct did not violate clearly established law.
1. Violation of Constitutional Right
There was probable cause to arrest Plaintiff on August 6, 2013, because the information before the officers gave rise to the fair probability that Plaintiff had committed the offense of driving without a valid license in violation of Section 12500. It is undisputed that Plaintiff rented a car in Santa Monica and drove it to Ortiz's residence on Cerise Avenue in Hawthorne. Plaintiff had called the Department and spoken with Chirarello to tell her that he was in the process of driving to Ortiz's house, and police found him sitting in the car outside her house. Officers ran Plaintiff's driver's license through their computer, and the CLETS/MTD report revealed that Plaintiff's driver's license was suspended, effective July 26, 2013. (Comp., Ex. B at 123; see also Plaintiff's Objections to the R&R, Ex. F, p. COH000007.) Based on this information, a reasonable officer could conclude that Plaintiff had violated Section 12500.
The CLETS/MTD report provided the officers with the following information: (1) Plaintiff's driver's license was suspended, effective July 26, 2013; (2) notice of the suspension was mailed to him on June 26, 2013; and (3) the notice was "returned unclaimed" to DMV on July 8, 2013, and "verbal or personal service" was needed. (Plaintiff's Objections to the R&R, Ex. F, p. COH000007.) Thus, it appears that Plaintiff did not receive proper notice, as required to demonstrate a violation of Section 14601.1(a). The Court notes that Plaintiff's Objections to the R&R, Ex. F, and Comp., Ex. B at 123 appear to both appear to be pages of the CLETS/MTD report regarding the August 6, 2013 incident, except that the relevant portion of the entry noting the non-delivery to Plaintiff was redacted from the page submitted by Defendants and is only visible in the page submitted by Plaintiff.
Plaintiff argues that his Fourth Amendment rights were violated because the officers lacked probable cause to arrest him for violating Section 14601.1(a), which prohibits a person from driving with a suspended license “if the person so driving has knowledge of the suspension . . . .” (Emphasis added.) He argues that the facts before the officers at the time of his arrest showed that he did not have actual or constructive knowledge that his driver's license was suspended. (Opposition at 5-11; Plaintiff's Objections to the R&R at 9-12.) The CLETS/MTD report indicated that the notice mailed to Plaintiff by the DMV informing him that his driver's license was suspended had been “returned unclaimed” and that “verbal or personal service” was needed. (Plaintiff's Objections to the R&R, Ex. F, p. COH000007.) Plaintiff also testified that he did not know his driver's license was suspended until he was told by the officers just prior to his arrest. (Comp., Ex. B at 63, 70; Ex. C at 174-75.) Thus, the Court assumes for purposes of this Motion that Plaintiff did not have actual or constructive knowledge of the suspension and that his lack of knowledge should have been apparent to a reasonable officer at the time of the arrest.
However, Plaintiff's lack of knowledge that his license was suspended is immaterial. Although a Section 14601.1(a) violation requires knowledge of the suspension, there is no such requirement for a Section 12500 violation. See Spence, 125 Cal.App.4th at 722-23. Because there was probable cause to arrest Plaintiff for violating Section 12500, his arrest and detention did not violate the Fourth Amendment. See Devenpeck, 543 U.S. at 152-53 (“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest, ” but “an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”); see also Whren, 517 U.S. at 813 (officer's subjective reason for arrest is immaterial as long as objective circumstances justify the action); Magallon-Lopez, 817 F.3d at 675 (“[I]f the facts support probable cause to arrest for one offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different offense as to which probable cause was lacking.”).
To the extent that Plaintiff could argue that California law prohibits a police officer from arresting an individual solely on the belief that the individual is an unlicensed driver in violation of Section 12500, see Cal. Veh. Code § 12801.5(f), the arrest is still valid under the Fourth Amendment. “[A]lthough California law may prohibit arrest for certain traffic ‘infractions,' such violations may nevertheless support probable cause for arrest under the Fourth Amendment: ‘[W]hile States are free to regulate [warrantless] arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.'” Orellana v. County of Los Angeles, 630 Fed.Appx. 730, 731 (9th Cir. 2016) (quoting Moore, 553 U.S. at 176) (additional citations omitted); see also Moore, 553 U.S. at 174-75 (holding that an arrest made with probable cause does not violate the Fourth Amendment even though state law required issuing a summons rather than arresting the suspect). When there is probable cause to believe a crime has been committed, "the arrest is constitutionally reasonable." Moore, 553 U.S. at 171; see also Edgerly, 599 F.3d at 956 (holding that, in light of Moore, a defendant's arrest for trespass was constitutional even though it was not authorized under applicable state law).
2. Clearly Established Right
Even if the arrest was unconstitutional, Defendants are entitled to qualified immunity because the right violated was not “sufficiently clear that every reasonable official would have understood that what he [was] doing violate[d] that right.” Mullenix, 136 S.Ct. at 308 (internal quotation marks omitted). Plaintiff has not come forward with any case law in which a police officer was found to have violated the Fourth Amendment under circumstances similar to those at issue here. (See generally Opposition; Plaintiff's Objections to the R&R.) Nor is the Court aware of any case that would have placed Defendants “on notice their conduct [was] unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). Rather, state case law establishes that Plaintiff violated Section 12500 even if he did not know his license was suspended, see Spence, 125 Cal.App.4th at 722-23, and federal law establishes that there was probable cause to arrest Plaintiff for that violation, see Moore, 553 U.S. at 177-78.
Plaintiff argues at length that he was denied due process because he did not receive proper notice that his license was suspended. (See Opposition at 3-11.) However, Plaintiff was never prosecuted for violating Section 14601.1(a) in connection with the August 6, 2013 incident; rather, the he was charged with violating Section 12500. (Comp., Ex. B at 157.) The charges were later dismissed “when the opposition failed to show up” at the hearing. (Comp., Ex. C at 173.) Moreover, Plaintiff could have been convicted for violating Section 12500 because it does not require a driver to have knowledge that they lack a valid driver's license. See Spence, 125 Cal.App.4th at 722-23. Thus, Plaintiff's due process argument is misplaced. The relevant question here is whether his arrest was valid under the Fourth Amendment. The Court has concluded that the facts viewed in the light most favorable to Plaintiff demonstrate that there was probable cause to arrest him for violating Section 12500 because the facts known to the officers at the time would lead a reasonable person to conclude that Plaintiff had driven a vehicle without a valid license.
In these circumstances, Defendants are entitled to summary judgment on Plaintiff's First Cause of Action.
II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S SECOND CAUSE OF ACTION FOR UNREASONABLE SEARCH UNDER THE FOURTH AMENDMENT
Plaintiff claims that his Fourth Amendment rights were violated when he was subjected to an unlawful search of his person and vehicle subsequent to his arrest. (FAC ¶¶ 88-90.) Defendants are entitled to summary judgment on these claims.
A. Applicable Law
1. Warrantless Search of an Arrestee's Person
Officers may conduct a warrantless search of an arrestee's person incident to a lawful arrest. See United States v. Robinson, 414 U.S. 218, 235 (1973). The justification for permitting a warrantless search in these circumstances is the need of law enforcement officers to seize weapons or other items that could be used to assault an officer or effect an escape, as well as to prevent the loss or destruction of evidence. United States v. Hudson, 100 F.3d 1409, 1419 (9th Cir. 1996). “[A] search incident to arrest m ust be conducted at about the same time as the arrest.” Id. (internal quotation marks omitted)
2. Warrantless Search of a Vehicle
“Under the ‘community caretaking” doctrine, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic.” United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016) (citation omitted). “The purpose of such a search is to ‘produce an inventory' of the items in the car, in order ‘to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.'” United States v. Johnson, 889 F.3d 1120, 1125 (9th Cir. 2018) (quoting Florida v. Wells, 495 U.S. 1, 4 (1990) (internal quotation marks omitted)). In general, “[a]n action is ‘reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify the action.” Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (internal quotation marks and alteration omitted); see also Bond v. United States, 529 U.S. 334, 338 n.2 (2000) (“[T]he subjective intent of the law enforcement officer is irrelevant in determining whether that officer's actions violate the Fourth Amendment”); Whren, 517 U.S. at 813 (“[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers . . . .”). However, “[t]he purpose of the search must be non-investigative . . . [and] cannot be a ruse for general rummaging in order to discover incriminating evidence.” Johnson, 889 F.3d at 1125 (internal quotation marks and citations omitted).
B. Analysis
Viewing the evidence in the light most favorable to Plaintiff, it is clear that the searches of Plaintiff's person and vehicle were lawful under the Fourth Amendment. Plaintiff drove his vehicle to Hawthorne while his driver's license was suspended. After he was asked to exit the vehicle and it was discovered that he had been driving with a suspended license, Plaintiff was arrested. As set forth above, there was probable cause to arrest Plaintiff for violating Section 12500. Accordingly, the limited patdown search of Plaintiff's person was a permissible search incident to a lawful arrest.
The search of Plaintiff's vehicle was a lawful inventory search, which was conducted in connection with the authorized impoundment of Plaintiff's vehicle following his arrest and was documented as such. There is no evidence indicating that the search was conducted other than in compliance with normal police procedures or as an investigatory search. The circumstances, viewed objectively, demonstrate that the inventory search of Plaintiff's vehicle did not violate the Fourth Amendment.
Accordingly, Defendants are entitled to summary judgment on Plaintiff's Second Cause of Action for unlawful search in violation of the Fourth Amendment.
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S THIRD CAUSE OF ACTION FOR BATTERY IN VIOLATION OF STATE LAW
Plaintiff asserts a state law claim for battery arising out of his arrest. He states that Goetz and Lewis “intentionally, harmfully, and offensively touched Plaintiff by using tactical holds in order to effectuate handcuffing and arresting Plaintiff” without his consent. (FAC ¶¶ 95-97; Comp. Ex. B at 91.)
“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or cause plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” So v. Shin, 212 Cal.App.4th 652, 669 (2013). A police officer is “charged with acting affirmatively and using force as part of their duties, ” and “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Brown v. Ransweiler, 171 Cal.App.4th 516, 527 (2004) (internal citations and quotation marks omitted). Thus, a police officer is “not similarly situated to the ordinary battery defendant and need not be treated the same.” Id. (internal citations and quotation marks omitted). Rather, “he is entitled to the even greater use of force than might be in the same circumstances required for self-defense.” (Id.) A plaintiff suing on grounds of battery resulting from police action must prove that “the police officer's use of force was unreasonable” based on the circumstances. (Id.)
The evidence, viewed in the light most favorable to Plaintiff, does not support a claim for battery. Plaintiff was arrested for driving on a suspended license. He was handcuffed and there is no evidence that any force was used beyond what was required to effectuate the arrest. In his deposition, Plaintiff was asked when he was battered. He stated:
By [the officers] simply putting their hands on me and manhandling me to go in the car, go in the station, sit down, don't get up. . . . They told me to get up, put my hands behind my back, cuffed me up, pulled me to the car and brought me to the police station, took me out of the car, put me in a cell.(Comp., Ex. B at 91.) Even Plaintiff's statement does not describe a battery because it does not show that unreasonable force was used.
Moreover, the video of Plaintiff's arrest demonstrates that there was no battery. The video shows that Plaintiff was asked to exit his vehicle. (SUF ¶ 16.) No. hands were placed on Plaintiff until after he exited the vehicle, when Officer Lewis handcuffed and guided him toward the curb for a safety search. (Id.) Plaintiff was then escorted to and entered the patrol car without incident. (Id.) The officer did not touch Plaintiff at all after he entered the police car, and Plaintiff exited the vehicle independently when he arrived at the police station. (Id.) Plaintiff was fully compliant and there was no struggle. (Id.) There was clearly no unreasonable force used during the course of the arrest.
Plaintiff also testified at his deposition that his arrest “went smoothly.” (SUF ¶¶ 33, 43; Ex. B at 66:2-22.) When asked what complaints he had against specific officers, he stated that they were indifferent to his complaints of child concealment by his ex-girlfriend or that they made fun of him. (Id.) Plaintiff never stated in his deposition, the letters and complaints filed with the City, or the letters sent to Police Chief Fager or the City Attorney that he was subject to improper force during the course of his arrest that would constitute battery under California law.
Accordingly, Defendants are entitled to summary judgment on Plaintiff's Third Cause of Action for battery.
IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S FOURTH AND FIFTH CAUSES OF ACTION FOR NEGLIGENCE AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IN VIOLATION OF STATE LAW
Plaintiff asserts a state law claim for negligent infliction of emotional distress based on Defendants' “direct acts or failure to act concerning the filing of police complaints/reports, the requesting of police assistance, the training, supervising, disciplining of insubordination, and refusal to perform their civil duties under their employment obligations.” (FAC ¶ 108.) He asserts a separate state law claim for negligence based on Defendants' failure to prevent “the physical and mental abuse, false arrest, false imprisonment, fabrication of official documents and the defamation of character” of Plaintiff. (FAC ¶ 111.)
The elements of a cause of action for negligence against a police officer are: (1) the officer owed plaintiff a duty of care; (2) the officer breached that duty by failing to use such skill, prudence, and diligence as other members of the profession commonly possess; (3) proximate cause between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the officer's negligence. Harris v. Smith, 157 Cal.App.3d 100, 104 (1984); see also Friedman v. Merck & Co., 107 Cal.App.4th 454, 463 (2003) (setting forth the four elements of a general negligence claim).
“The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to establishing a claim for negligence.” Nymark v. Heart Fed. Savings & Loan Assn., 231 Cal.App.3d 1089, 1095 (1991). “[A]bsent a duty, the defendant's care, or lack of care, is irrelevant.” Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal.App.4th 472, 481 (1996). “The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide.” Vasquez v. Residential Investments, Inc., 118 Cal.App.4th 269, 278 (2004).
These requirements likewise apply to Plaintiff's negligent infliction of emotional distress claim. “[I]t is well-settled that negligent emotional distress infliction is not an independent tort; rather it is the tort of negligence to which the duty element applies.” Friedman, 107 Cal.App.4th at 463. Moreover, “there is no duty to avoid negligently causing emotional distress to another.” Id. at 464 (internal quotation marks, alterations, and citations omitted).
In general, a police officer has no duty to protect a citizen unless the officer has promised to do so and the citizen has relied on that promise. Williams v. California, 34 Cal.3d 18, 25 (1983) (“Recovery has been denied . . . for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.”) (collecting cases). However, where an officer undertakes to assist a citizen, the officer has a duty to exercise reasonable care in rendering aid. Id. A breach of the duty occurs when an officer places the citizen in peril or increases the risk of harm to the citizen when he or she is already in a dangerous situation. Id.
Here, Plaintiff premises his negligence and negligent infliction of emotional distress claims on certain Defendants' failure to respond to Plaintiff's complaints against Ortiz and Johnson, failure to respond to his requests for police assistance, and “refusal to perform their civil duties under their employment obligations” (FAC ¶ 108), as well as other Defendants' failure to prevent the alleged wrongdoings against Plaintiff (FAC ¶ 111).
Plaintiff's negligence claims fail to the extent they are premised on his wrongful arrest and detention or an illegal search and seizure, given that the Court has already determined that there was probable cause to arrest Plaintiff and the subsequent searches and seizures were legal. See Pinckney v. City of San Jose, 2010 WL 94266, at *7 (N.D. Cal. Jan. 6, 2010) (negligence claim fails to the extent it arises out of arrest held to be lawful).
As to Plaintiff's allegations that Defendants failed to act to protect Plaintiff or pursue his complaints, his claims also fail because Defendants did not owe Plaintiff an affirmative duty to act. As explained above, an officer may be liable for breach of a duty when he undertakes acts that place a citizen in peril or increases the risk of harm. Where there is no induced reliance, no such duty attaches. See Williams, 34 Cal.3d at 24-25. Here, Plaintiff's claims are based on allegations that Defendants failed to investigate his complaints about child custody issues and the alleged failure of various officers to investigate or prosecute the alleged violation of child custody orders. There is no allegation and no evidence suggesting that Defendants increased the peril to Plaintiff or did anything that would give rise to an enforceable duty. Because Defendants did not have a legal duty to investigate or prosecute at Plaintiff's behest, he cannot sustain his negligence claims.
There is no evidence showing that Defendants owed Plaintiff a duty of care in the circumstances at issue in this case and, therefore, Defendants are not liable for negligence or negligent infliction of emotional distress. Defendants are entitled to summary judgment on Plaintiff's Fourth and Fifth Causes of Action.
V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S SIXTH CAUSE OF ACTION FOR FAILURE TO PROTECT PLAINTIFF FROM HARM IN VIOLATION OF THE FOURTEENTH AMENDMENT
Plaintiff asserts that his Fourteenth Amendment rights were violated by Defendants' failure to protect Plaintiff from harm caused by private citizens Ortiz and/or Johnson and failure to investigate or pursue Plaintiff's complaints regarding child visitation issues and enforcement of a protective order. (See FAC ¶¶ 23-45, 60-77, 125.)
“The Due Process Clause of the Fourteenth Amendment provides that ‘[n]o State . . . shall deprive any person of life, liberty or property, without due process of law.'” DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 194 (1989). However, nothing in the language of the Due Process Clause “requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” Id. at 195. Thus, as a general rule, “a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Id. at 197. In this regard, police officers also do not have an affirmative duty to investigate crimes in a particular manner or to protect one citizen from another. See Gini v. Las Vegas Metropolitan Police Dep't, 40 F.3d 1041, 1045 (9th Cir. 1994).
The Ninth Circuit recognizes two exceptions to the general rule that state officials do not have a constitutional duty to protect the public from crime or violence or investigate crimes in a particular manner: (1) the “special relationship” exception; and (2) the “danger creation” exception. L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992).
A. The Special Relationship Exception Does Not Apply
The special relationship exception applies when the state creates a special relationship with an individual, “as in the case of custody or involuntary hospitalization, ” and the due process violation is “premised on an abuse of that special relationship.” Grubbs, 974 F.2d at 121. However, “[t]he special-relationship exception does not apply when a state fails to protect a person who is not in custody.” Patel v. Kent School Dist., 648 F.3d 965, 972 (9th Cir. 2011). This is because “when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs . . . it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” DeShaney, 489 U.S. at 200. “The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” Id. In other words, “it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the ‘deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” Id.
Here, Plaintiff claims that he was assaulted by Johnson on more than one occasion and that Defendants failed to investigate or prosecute Johnson. Plaintiff further alleges that Defendants failed to investigate Ortiz and Johnson for “child concealment” or otherwise enforce child custody arrangements or a protective order. It is clear that Plaintiff was not in custody or otherwise restrained while the incidents giving rise to the alleged failure to protect took place. Rather, the alleged attacks and failure to investigate or enforce orders were perpetrated while Plaintiff was seeking police assistance in confronting Ortiz and Johnson. Accordingly, the special relationship exception does not apply.
B. The State Created Danger Exception Does Not Apply
A finding of state-created danger requires two elements: (1) “affirmative conduct on the part of the state in placing the plaintiff in danger, ” and (2) the state must have acted with “deliberate indifference” to a “known or obvious danger.” Patel, 648 F.3d at 974. “Deliberate indifference is a stringent standard of fault.” Id. (internal quotation marks and citation omitted). In the Ninth Circuit, deliberate indifference is “a higher standard than gross negligence because it requires a culpable mental state, meaning that the state actor must recognize an unreasonable risk and actually intend to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” Campbell v. State of Washington Dep't of Soc. & Health Servs., 671 F.3d 837, 846 (9th Cir. 2011) (quoting Patel, 648 F.3d at 974).
Here, there is no evidence that Defendants acted affirmatively to place Plaintiff in danger or that Defendants acted with deliberate indifference to a known or obvious danger. The failure to protect Plaintiff from attacks by Johnson did not include any affirmative acts by Defendants that placed Plaintiff in danger. Rather, the attacks by Johnson occurred when Plaintiff voluntarily drove himself to Johnson's location, which led to the confrontations. Moreover, the failure to investigate Plaintiff's allegations against Ortiz and Johnson regarding the location of the children and other officers' failure to investigate his complaints did not place Plaintiff in danger. Accordingly, the state-created danger exception does not apply.
* * * *
Defendants did not violate Plaintiff's Fourteenth Amendment rights by failing to investigate Plaintiff's claims against Ortiz, Johnson, and other Department personnel, failing to enforce child custody orders, failing to enforce a protective order, or failing to protect Plaintiff from Johnson. See DeShaney, 489 U.S. at 197 (“[A] State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”); see also Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 768 (2005) (“[T]he benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive' manifestations.”); Thompson v. Sosa, 265 Fed.Appx. 544, 544 (9th Cir. 2008) (alleged inadequate investigation did not infringe a protected constitutional right); Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir.1985) (no civil rights violation based on inadequate investigation into crimes committed against plaintiffs). Accordingly, Defendants are entitled to summary judgment on Plaintiff's Sixth Cause of Action for failure to investigate or failure to protect.
VI. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S SEVENTH CAUSE OF ACTION FOR CONSPIRACY IN VIOLATION OF CIVIL RIGHTS
Plaintiff asserts conclusory conspiracy allegations, claiming that he was harassed and that there was a conspiracy to cover up the misconduct. (FAC ¶ 128.)
The elements of a claim for conspiracy to deprive another of his civil rights are: “(1) the existence of an express or implied agreement among the [defendants] to deprive [the plaintiff] of his constitutional rights; and (2) an actual deprivation of those rights resulting from that agreement.” Ting v. U.S., 927 F.2d 1504, 1512 (9th Cir. 1991). To prove a conspiracy between state actors under Section 1983, the plaintiff must bring forward evidence showing “an agreement or ‘meeting of the minds' to violate constitutional rights.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (citation omitted); see also Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010). Each conspirator “need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.” Id. A plaintiff cannot “defeat the properly supported summary judgment motion of a defendant charged with a conspiracy without offering ‘any significant probative evidence tending to support the complaint.'” Anderson, 477 U.S. at 256.
Here, there is no evidence showing that Defendants engaged in any type of legally cognizable misconduct or that there was a meeting of the minds to cover up the misconduct. Plaintiff's allegations regarding Defendants' motives and state of mind are wholly conclusory and based on conjecture. Accordingly, Defendants are entitled to summary judgment on Plaintiff's Seventh Cause of Action for conspiracy.
VII. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S EIGHTH CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS
Plaintiff alleges that Defendants “violated Plaintiff['s] civil rights by detaining, battering, arresting, imprisoning (by filing false police reports), and depriving Plaintiff of private property thereof without compensation. (FAC ¶ 131.)
To prove a violation under Section 1983, a plaintiff must show: (1) a defendant's conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States; and (2) the defendant committed the act under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The threshold question is “whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
A. Failure to Protect and Illegal Search and Seizure
The Court already has found that Defendants' alleged failure to protect Plaintiff or investigate his claims did not violate his Fourteenth Amendment rights. The Court also has found that Plaintiff's arrest and detention and the searches of his person and vehicle did not violate his Fourth Amendment rights.
B. Deprivation of Property
To the extent that Plaintiff's Eighth Cause of Action also includes a claim for deprivation of his property without compensation, the basis for such a claim is unclear. The officers were authorized to have Plaintiff's vehicle impounded at the time he was arrested for driving with a suspended license. See Cal. Veh. Code § 14602.6(a)(1). Moreover, all evidence seized during the search of his person and vehicle have been returned, apparently except his pocket knife, which Defendants assert can be picked up from the Department at any time. Thus, Plaintiff's claim for deprivation of property in violation of due process is without merit.
C. Excessive Force
The Fourteenth Amendment's Due Process Clause applies to protect individuals who have not yet been convicted of a crime from the use of excessive force that amounts to punishment. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015); see also Graham v. Connor, 490 U.S. 386, 395 n.10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1979). A plaintiff must show “that the force purposely or knowingly used against him was objectively unreasonable” in light of the facts and circumstances confronting them, without regard to their mental state. Kingsley, 135 S.Ct. at 2472-73; see also Graham, 490 U.S. at 397 (applying an objectively unreasonable standard to a Fourth Amendment excessive force claim arising during an investigatory stop). In determining whether the use of force was reasonable, the Court should consider factors including, but not limited to:
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Kingsley, 135 S.Ct. at 2473.
Because officers are often forced to make split-second decisions in rapidly evolving situations, the reasonableness of a particular use of force must be made “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. at 2473-74 (citing Graham, 490 U.S. at 396). Moreover, “‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, '” violates the Constitution. Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d. 1028, 1033 (2nd Cir. 1973).
Here, it is clear that Officer Lewis only touched Plaintiff when she handcuffed and escorted him to the patrol car. The video of the arrest and Plaintiff's own deposition testimony establish conclusively that there was only a minimum amount of physical contact between Lewis and Plaintiff, and that contact was clearly reasonable. (Comp., Ex. B at 91; Goetz Decl., Ex. B.) The video shows that Officer Lewis handcuffed Plaintiff in a totally unremarkable manner and held his upper right arm while they walked to the patrol car. Plaintiff did not resist and walked to the patrol car without incident. He entered the car and Officer Lewis drove him to the police station. There was no conversation at all during the drive to the station. Upon arrival, Plaintiff exited the vehicle without assistance. It cannot be reasonably argued that Officer Lewis used excessive force on Plaintiff during the course of his arrest. Thus, Defendants are entitled to summary judgment on Plaintiff's Eighth Cause of Action to the extent it is premised on a claim of excessive force in violation of the Fourteenth Amendment.
D. Conditions of Confinement
Plaintiff also appears to argue that the conditions of his confinement in the jail were unconstitutional. Plaintiff was arrested on August 6, 2013, at approximately 7:00 p.m., transported to the Hawthorne jail, and released the following morning. (Comp., Ex. B at 98, 100.) Upon his arrival at the jail, he was first placed in a holding cell, which contained a concrete slab for sitting or sleeping, a toilet, and a sink. (Comp., Ex. B at 58, 186.) He was booked at 11:03 p.m. (Id. at 100-01.) Thereafter, he was transferred to a dorm cell and held overnight. (Id. at 60, 186.) The dorm cell contained two beds, bedding, a toilet and sink, and toilet paper. (Id. at 60.) Plaintiff may have been fed breakfast, but he was not offered dinner because he was told he had arrived after dinnertime. (Id. at 58-59.)
Conditions of confinement claims brought by pre-trial detainees are analyzed under the Due Process clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 534 n.16 (1979); see also Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). Nonetheless, “[b]ecause pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment, we apply the same standards.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). “The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners not only from inhumane methods of punishment, but also from inhumane conditions of confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). The evaluation of conditions of confinement must be judged, to the maximum extent possible, under an objective standard. Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981). To prevail on a claim for unconstitutional conditions of confinement, a plaintiff must demonstrate a deprivation of “the minimal civilized measures of life's necessities.” Allen v. Sakai, 48 F.3d 1082, 1084 (9th Cir. 1995) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Whether an inmate's conditions of confinement rise to the level of a constitutional violation may depend in part on the length of exposure to the conditions. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (“A filthy, overcrowded cell and a diet of ‘grue' may be tolerable for a few days and intolerably cruel for weeks or months.”)).
Defendants are entitled to summary judgment on Plaintiff's conditions of confinement claim. The relatively benign circumstances and nature of Plaintiff's confinement and its brief duration simply do not rise to the level of a due process violation. Construing the evidence in the light most favorable to Plaintiff, it appears that he was confined in the holding cell for approximately four hours during the booking process. Plaintiff concedes, and photographs of the cell confirm, that it contained a concrete bench, toilet, and sink. (Declaration of Sgt. Robert Mitchell in Support of Reply (“Mitchell Reply Decl.”) ¶¶ 2-3 and Ex. A & B.) Plaintiff claims there was no “toiletry, ” meaning toilet paper, in the cell. (Plaintiff's Decl. ¶ 76.) Even assuming there was no toilet paper in the holding cell during Plaintiff's confinement, there is no evidence that Plaintiff ever requested or was refused toilet paper. Moreover, Plaintiff was in the holding cell for only a few hours. Plaintiff concedes that once he was transferred to the dorm cell after booking, he had bedding, toiletries, and was fed during normal meal periods. (SUF ¶ 51; see also, Comp. Ex. B at 74:5-12.) The evidence, construed in the light most favorable to Plaintiff, demonstrates that the conditions of Plaintiff's brief confinement in the Hawthorne jail did not violate the Fourteenth Amendment.
Photographs of the holding cell show the presence of toilet paper, and Defendants contend that the photographs depict the condition, state, configuration, and structure of the cell at the time of Plaintiff's confinement. (Mitchell Decl. ¶ 3, Ex. A.) However, Plaintiff contends that there was no toilet paper in the holding cell at the time he was held there.
* * * * Accordingly, Plaintiff's generalized civil rights claim is without merit. Plaintiff has failed to provide evidence showing that Defendants violated his constitutional rights, and Defendants are entitled to summary judgment on Plaintiff's Eighth Cause of Action.
RECOMMENDATION
THE COURT, THEREFORE, RECOMMENDS that the District Court issue an Order: (1) accepting this Amended Report and Recommendation; (2) granting Defendants' Motion for Summary Judgment; and (3) directing that Judgment be entered dismissing this action with prejudice.