Opinion
No. C-00-2579 PJH
June 13, 2002
ORDER
Defendants' motion for summary judgment came on for hearing on June 12, 2002, before this court, the Honorable Phyllis J. Hamilton presiding. Plaintiff filed no opposition to the motion, and did not appear at the hearing. Defendants appeared by their counsel Dale L. Allen. Having read defendants' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendants' motion for the following reasons.
INTRODUCTION
This is a case brought under 42 U.S.C. § 1983 against three Emeryville Police Officers, alleging excessive force. Plaintiff Melvin Washington was arrested by defendants Officer R. Alton, Officer K. Goodman, and Sgt. Bowman on March 13, 2000. He claims that he lay on the ground at Officer Alton's request, and that Officer Alton then handcuffed him. In the complaint, plaintiff alleges that after he was handcuffed, Officer Alton kicked him in the face and head, while Officer Goodman and Sgt. Bowman stood by and watched. In his deposition, he stated that one officer kicked him in the face, and that either that same officer or a second officer kicked him in his side.
Defendants move for summary judgment on the basis that plaintiff can provide no evidence supporting his claim. Defendants contend that Officer Alton discovered plaintiff inside the premises of Nady Systems, Inc., in the early morning hours of March 13, 2000. Nady Systems, a business located in Emeryville, California, was closed at the time. In his deposition, plaintiff admitted that he was inside the building without permission. He stated that he had gone inside to "rest." Mr. Nady, the owner of the business, states in his declaration that the police contacted him between 2:00 a.m. and 3:00 a.m. on the morning of March 13, 2000, to say that the burglar alarm had been tripped, and that he went over to open the door for the police.
Officer Alton claims that after he entered the building with the other officers, he told plaintiff to lie down, and handcuffed him, but denies kicking him or using any excessive force. He also states that no other officer at the scene kicked plaintiff or used excessive force. Mr. Nady states that he could not see what was going on inside, as he was standing by the entrance to the store while the officers made the arrest, but claims that he did not hear any disturbance, shouting, or yelling during the arrest. He also states that when plaintiff exited the building with the officers, plaintiff appeared docile, calm, and "out of it," and the officers did not seem agitated.
Defendants also contend that summary judgment should be granted on the basis of qualified immunity because plaintiff can offer no evidence supporting a finding that defendants acted unreasonably, let alone a finding that a reasonable officer would find that defendants' actions were unreasonable. Defendants argue that they had the right to arrest plaintiff as a burglary suspect, and that the evidence shows that they escorted him to the patrol car without incident.
DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are those that might 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 court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id. If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. at 250. Regardless of whether plaintiff or defendant is the moving party, each party must "establish the existence of the elements essential to [its] case, and on which [it] will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
A district court may not grant a motion for summary judgment solely because the opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 n. 4 (9th Cir. 1994). A district court, of course, always may grant an unopposed motion for summary judgment if the movant's papers are themselves sufficient to support the motion and do not on their face reveal a genuine issue of material fact. United States v. Real Property at Incline Village, 47 F.3d 1511, 1520 (9th Cir. 1995), rev'd on other grounds sub nom. Degen v. United States, 517 U.S. 820 (1996); Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993).
B. Defendants' Motion
Defendants argue that plaintiff cannot establish that defendants used excessive force in connection with his arrest, and also assert that the claims against the officers are barred by the doctrine of qualified immunity. A plaintiff alleging a claim under 42 U.S.C. § 1983 must establish, first, that a person acting under color of state law committed the conduct at issue, and second, that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. White v. Roper, 901 F.2d 1501, 1503 (9th Cir. 1990). The use of excessive force by a police officer in effectuating an arrest states a claim under 42 U.S.C. § 1983. Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986). Excessive force claims that arise in the context of an arrest are analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 394-95 (1989). The Fourth Amendment reasonableness standard also applies to allegations of excessive force against an arrestee while he/she is detained in custody post-arrest but pre-arraignment. Pierce v. Multomah County, Oregon, 76 F.3d 1032, 1043 (9th Cir.), cert. denied, 519 U.S. 1006 (1996).
Determining whether the force used to effectuate a particular seizure is reasonable requires a balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake. Graham, 490 U.S. at 396. The reasonableness inquiry is an objective one, the question being whether the officers' actions were objectively reasonable in light of the facts and circumstances confronting them. Id. at 397. Unreasonable force claims are usually questions of fact for a jury. Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995). Thus, in order to defeat a motion for summary judgment in a case alleging excessive force, the plaintiff must, at a minimum, provide evidence that establishes the existence of a triable issue of fact.
In this case, however, plaintiff did not file an opposition to the motion, and did not appear at the hearing, despite having been advised by the clerk of the date and time of the hearing. While plaintiff's failure to file an opposition is not sufficient reason to grant defendants' motion, see Cristobal, 26 F.3d at 1494-95 n. 4, defendants have offered evidence that the arrest was effectuated without unlawful use of force, and plaintiff has offered no evidence that any use of force used in arresting and restraining him was objectively unreasonable under the circumstances. In the absence of more specific facts, plaintiff's complaint must fail. See, e.g., Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (conclusory allegations not sufficient to defeat motion for summary judgment).
CONCLUSION
Because plaintiff 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.P. 56(e), defendants are "entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.
For the foregoing reasons, defendants' motion for summary judgment is GRANTED. This order fully adjudicates the motion listed at No. 29 on the clerk's docket for this case, and terminates the case and any pending motions.