Opinion
No. C 00-1071 CRB (PR)
June 11, 2001
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (Doc# 14)
Victor M. Harker, a Disorder at California State Prison, Corcoran, filed this pro se civil rights action for damages under 42 U.S.C. § 1983 alleging that Santa Rosa Police Officer Michael Clark "excessively sprayed [him] with pepper spray" in effectuating his arrest and hurt his wrists while cuffing him. Per order filed on September 28, 2000, the court found that Harker's allegations, liberally construed, stated a cognizable claim under § 1983 against Clark and ordered the United States Marshal to serve him. Clark now moves for summary judgment on the ground that there are no material facts in dispute and that he is entitled to judgment as a matter of law. Harker did not file an opposition.
The court dismissed the Santa Rosa police department because plaintiff named the department on the apparent theory that it was vicariously liable for the acts of Clark. Sept. 28, 2000 Order at 2 (citing Board of Comm'rs v. Brown, 520 U.S. 397, 403 (1997)).
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings. discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, as is the case here, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.
B. Analysis
The use of force to effect an arrest is examined in light of the Fourth Amendment's prohibition on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394-95 (1989). The officer's actions are measured by the standard of objective reasonableness. Id. at 397. The reasonableness of the force used to effect a particular seizure is determined by carefully balancing the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. Id. at 396. The force which is applied must be balanced against the need for that force. Deorle v. Rutherford, 242 F.3d 1119, 1124 (9th Cir. 2001).
Because the reasonableness test is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. These factors are not exclusive, however, and the totality of the particular circumstances of each case must be considered. See Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995).
In support of his motion for summary judgment, Clark submits several declarations and accompanying evidence which show that the force used by him was reasonable in light of the particular circumstances of the case. Clark specifically sets forth evidence showing that he was informed by a security guard that a man had just engaged in conduct consistent with illegal narcotics activity and that the man had run from the guard when approached. Clark located a man at a nearby convenience store who fit the description of the security guard, but when approached the man ran away. The fleeing suspect — later identified as Harker — ignored Clark's commands to stop, and forced Clark on a foot pursuit towards a high crime area at night, and eventually a dark city park. After Harker entered the park, he began to slow and Clark caught up to him. Clark feared that Harker might have a weapon, and ordered him to stop and get on the ground. When Harker ignored the commands, Clark took out his Oleoresin Capsicum aerosol canister and briefly sprayed Harker's face from a distance of eight to ten feet. Clark did not want to use his baton or weapon and possibly cause more harm to himself or Harker.) When Harker began rubbing his eyes, Clark grabbed Harker's arm and put him face down on the grass and handcuffed him. Clark double locked the handcuffs and checked them to be sure they were not too tight. Harker did not complain about the handcuffs. Within Five minutes, another officer arrived at the scene and used a water bottle to flush Harker's eyes and face with water. Harker was driven to the convenience store, where he was identified by the security guard, and later taken to the service station, where officers escorted him to a bathroom where he flushed his face with water. Jail medical staff found no injury to Harker's eyes or wrists. In fact, there is no indication in the jail medical records that Harker even complained of any injury to his wrists. In sum, Clark shows that the force used was reasonable under the circumstances.
Harker has not filed an opposition to Clark's motion for summary judgment despite being advised to do so and despite having been given this circuit's requisite notice under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). His failure to file an opposition is not sufficient reason to grant Clark's motion for summary judgment, see Cristobal v. Siegel, 26 F.3d 1488. 1494-95 n. 4 (9th Cir. 1994); however, beyond the largely conclusory allegations of his complaint (e.g., "I was excessively sprayed with pepper spray"), Harker offers no evidence whatsoever that the use of force was objectively unreasonable under the circumstances. This cannot do. See, e.g., Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (conclusoiy allegations not sufficient to defeat motion for summary judgment). Because Harker has failed to go beyond his initial pleadings and "set forth specific facts showing that there is a genuine issue for trial," Fed.R.Civ. Id. 56(e). Harker is "entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.
CONCLUSION
For the foregoing reasons, Clark's motion for summary judgment (doc # 14) is GRANTED.
The Clerk shall enter judgment in favor of Clark and close the file. SO ORDERED.