BACKGROUND

21

I. Factual Background

22 In the years preceding Plaintiff’s arrest underlying this action, Plaintiff was the subject of 23 many Santa Rosa Police Department (“SRPD”) Officer Safety Bulletins. (Dkt. No. 62-1.) The 24 SRPD issues these bulletins “to document and communicate and disseminate officer safety 25 concerns, and they are circulated and made available to SRPD Officers for their information and 26 27 1 safety.” (Dkt. No. 62-1 ¶ 3; Dkt. No. 62-3 at 18.) The first of these bulletins was issued on 2 September 6, 2018, and noted Plaintiff “is not wanted for any crimes” but Plaintiff had previously 3 made “threats” and was known to experience “paranoia,” to where he had even said, “he will make 4 police shoot him.” (Dkt. No. 62-1 at 4.) Another bulletin disseminated in November of 2018 5 highlighted Plaintiff’s repeated phone calls to SRPD and the Department’s assessment that he 6 “appears to be unstable and is extremely threatening.” (Id. at 7.) Pursuant to these bulletins, 7 Sargent De Leon conducted a number of threat assessments on Plaintiff in 2018 and ultimately 8 determined no further action was recommended. (Dkt. No. 62-4 at 13.) 9 In the months and weeks leading up the incident, Plaintiff’s name and photograph came up 10 regularly in SRPD briefings because he had “been making vague threats towards officers and 11 dispatch” and “had called SRPD dispatch numerous times within the last couple months.” (Dkt. 12 No. 63 at 12; id. at 19-20; Dkt. No. 62-3 at 12.) These phone calls had resulted in Officer Sousa 13 authoring a police report on March 8, 2022—14 days before the arrest—requesting charges for 14 annoying/harassing calls to 911. (Dkt. No. 63 at 12.) Additionally, SRPD officers were 15 discussing Plaintiff at briefings because he had “at least four active Stop and Holds” for violating 16 a restraining order. (Id.) “[A] stop and hold essentially functions like a local warrant. If 17 somebody commits a crime such as a restraining order violation, a report is taken, and then every 18 briefing there’s a form that’s passed around, so each officer is familiar with who is wanted for 19 different crimes.” (Id. at 19-20.) Prior to the incident, Officer Sousa “was aware [] that [Plaintiff] 20 suffered from mental health issues.” (Id. at 21.) And Officer O’Neill was aware of Plaintiff from 21 bulletins and briefings and attested that it was previously discussed at these same briefings that 22 Plaintiff likely suffered from mental illness. (Dkt. No. 62-3 at 18-19.) 23 On March 23, 2022, Officer Sousa was searching for Plaintiff, and had been “for the last 24 several shifts,” because Plaintiff “ha[d] been a constant nuisance and ha[d] been a significant drain 25 on the resources of the entire police department.” (Dkt. No. 63 at 12.) He had reached out to 26 Plaintiff’s neighbors and discovered Plaintiff was driving a Chevrolet Trailblazer, which Officer 27 Sousa subsequently found unoccupied on Cactus Street in Santa Rosa that same day. (Id.) Later 1 what he recognized as Plaintiff’s Trailblazer parked in front of Sam’s Market. (Id.) Officer Sousa 2 proceeded to park behind the Trailblazer and notify dispatch of the stop. (Dkt. No. 63 at 4 at 0:00- 3 30.) As Plaintiff entered Sam’s Market, Officer Sousa began ordering him to sit down. (Id. at 30- 4 33.) Plaintiff asked Officer Sousa whether he was being placed under arrest and then asked why. 5 (Id. at 0:33-45.) When Officer Sousa confirmed to him that he was under arrest, Plaintiff spoke to 6 the person at the counter and made certain remarks about being kidnapped. (Id. at 0:45-1:02.) 7 Officer Sousa asked Plaintiff to step outside of Sam’s Market so that he could place him in 8 handcuffs and Plaintiff began to walk out. (Id. at 1:02-1:11.) Officer Sousa began walking 9 backwards and putting on latex gloves when Plaintiff suddenly ran out of the store. (Id. at 1:12- 10 14.) 11 It was at this point Officer O’Neill saw Plaintiff running. Officer O’Neill was on patrol 12 and was driving towards Plaintiff’s location when he received Officer Sousa’s dispatch. (Dkt. No. 13 62-3 at 21-23.) Officer Sousa chased Plaintiff and a few seconds later, Plaintiff knelt down and 14 proceeded to lay on his stomach with his hands behind his back. (Dkt. No. 63 at 4 at 1:12-1:32.) 15 Officer Sousa proceeded to put handcuffs on Plaintiff and Plaintiff did not move away, though 16 Officer Sousa later attested that Plaintiff appeared “as being under the influence of drugs” and 17 “[a]ll of his muscles appeared to be clenched, twitching erratically, he was yelling, sweating 18 profusely.” (Id.; Dkt. No. 63 at 21.) Officer O’Neill testified that when he arrived at the scene 19 and got out of his car, “[he] did not see any active resistance.” (Dkt. No. 65-2 at 18.) 20 While Officer Sousa was on top of Plaintiff with one handcuff on his left hand, Officer 21 O’Neill arrived, moved quickly towards Plaintiff, and proceeded to kneel on Plaintiff and place his 22 right arm in a “twist lock.” (Dkt. No. 62-3 at 4 at 0:59-1:04; see also 62-3 at 25 (“I grabbed ahold 23 of Mr. Johnson’s right arm, applied a twist lock to gain control …”).) In Officer O’Neill’s body 24 camera footage, this action made an audible crunching sound. (Dkt. No. 62-2 at 4 at 1:04-1:05.) 25 Officer Sousa attested he “heard what sounded like a crack,” but did not “know what exactly that 26 noise is.” (Dkt. No. 65-2 at 7.) Officer O’Neill testified he heard a “pop” that “sounded like 27 arthritis, like [he] had popped [his] knuckles.” (Dkt. No. 62-3 at 19.) 1 they broke his elbow. (Dkt. No. 63 at 4 at 1:32-1:53.) Officer O’Neill at this point believed he 2 may have injured Plaintiff. (Dkt. No. 62-3 at 20.) The officers proceeded to lay Plaintiff on his 3 back, and then on his side and, while he was in handcuffs, searched Plaintiff. (Dkt. No. 63 at 4 at 4 1:35-4:43.) Officer Sousa then called an ambulance to the scene and Plaintiff was taken to the 5 hospital, where doctors told him he had suffered a “radial head fracture” to his right elbow and 6 told him to wear a sling. (Dkt. No. 63 at 13.) 7 II. Procedural Background 8 Plaintiff filed the present action in 2023, alleging Defendants violated his constitutional 9 rights by using excessive force and committing an unlawful arrest. (Dkt. No. 1.) Defendants 10 moved to dismiss Plaintiff’s complaint but withdrew their motion after Plaintiff filed an amended 11 complaint. (Dkt. Nos. 18, 21, 22.) Plaintiff has since voluntarily dismissed his false arrest causes 12 of action. (Dkt. No. 59.) Defendants now move for summary judgment of all remaining causes of 13 action. (Dkt. No. 62.) In his opposition Plaintiff voluntarily dismissed his claims against Sargent 14 De Leon. (Dkt. No. 65.) The only remaining causes of action against Officers O’Neill and Sousa 15 are: (1) § 1983 claim for use of excessive force; (2) California battery claim; (3) Bane Act claim; 16 and (4) Negligence. (Dkt. No. 21.) Plaintiff also maintains his state law causes of action against 17 the City of Santa Rosa pursuant to California Government Code § 815.2. (Dkt. No. 21.)2 Plaintiff 18 seeks punitive damages in addition to other forms of relief. (Id.) 19 DISCUSSION 20 Plaintiffs’ claims are divisible by the two injuries he allegedly sustained from the incident: 21 (1) the elbow fracture from Officer O’Neill’s use of the twist lock, and (2) pain and a hurt wrist 22 from Defendants not affirmatively moving Plaintiff to a more comfortable position after the 23 fracture. The Court discusses each in turn. 24 I. Elbow Fracture 25 Officers O’Neill and Sousa argue no reasonable trier of fact could find they engaged in 26 2 Under California Government Code § 815.2, “[a] public entity is liable for injury proximately 27 caused by an act or omission of an employee of the public entity within the scope of his 1 excessive force causing Plaintiff’s elbow to fracture, and in the alternative, that they are entitled to 2 qualified immunity. 3 A. Excessive Force 4 “In evaluating a Fourth Amendment claim of excessive force, [courts] ask ‘whether the 5 officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting 6 them.’” Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021) (quoting Graham v. Connor, 490 7 U.S. 386, 397 (1989)). The “analysis must balance the nature of the intrusion upon an individual’s 8 rights against the countervailing government interests at stake, without regard for the officers’ 9 underlying intent or motivations.” S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019). 10 Courts consider the totality of the circumstances, including “(1) the ‘severity of the crime at issue,’ 11 (2) whether the suspect ‘poses an immediate threat to the safety of the officers or others,’ and (3) 12 whether the suspect ‘is actively resisting arrest or attempting to evade arrest by flight.’” Peck v. 13 Montoya, 51 F.4th 877, 887 (9th Cir. 2022) (quoting Graham, 490 U.S. at 396). Courts also 14 consider “the availability of less intrusive alternatives to the force employed and whether warnings 15 were given.” Hopson v. Alexander, 71 F.4th 692, 698 (9th Cir. 2023). Of the factors, “the 16 ‘immediate threat to safety’ factor is the most important.” Peck, 51 F.4th at 887. However, the 17 Court “must ultimately consider the totality of the circumstances ‘from the perspective of a 18 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Id. (quoting 19 Graham, 490 U.S. at 396). Therefore, “[o]nly information known to the officer at the time the 20 conduct occurred is relevant.” S.R. Nehad, 929 F.3d at 1132. 21 So, the relevant question is whether a reasonable trier of fact could find Officers O’Neill 22 and Sousa used more force than was reasonable at the time of the alleged injury. 23 1. Officer O’Neill 24 A reasonable trier of fact could find Officer O’Neill’s application of a “twist lock” on 25 Plaintiff’s right elbow when Plaintiff was face down on the ground with his arms behind his back 26 caused Plaintiff’s elbow injury. (Dkt. No. 62-3 at 23-25.) Defendants argue Officer O’Neill’s use 27 of a twist lock was nonetheless reasonable as a matter of law because Plaintiff was actively 1 18, 20-22, 24.) Indeed, Officer Sousa acknowledged in his deposition testimony that the “twist 2 lock” is used only when “somebody is resisting.” (Dkt. No. 63 at 37); see also Bernal v. 3 Sacramento County Sheriff’s Dept., 73 F.4th 678, 684 n.2 (9th Cir. 2023) (discussing how a twist- 4 lock is a “type of control hold which uses pain to gain control” of resisting arrestees); Fitzgerald v. 5 Santoro, 707 F.3d 725, 734 (9th Cir. 2013) (upholding the use of a twist lock as a “minimally 6 forceful technique[] designed to subdue non-compliant subjects and prevent escalation.”). Thus, 7 whether Officer O’Neill is entitled to summary judgment on Plaintiff’s excessive force claim 8 depends on whether a reasonable trier of fact could find Plaintiff was not actively resisting arrest 9 at the time Officer O’Neil used the twist lock hold. 10 It is undisputed Plaintiff initially fled from Officer Sousa when he was told he was under 11 arrest. (Dkt. No. 63 at 4 at 1:15-25.) It is also undisputed that after fleeing for ten seconds, 12 Plaintiff put his hands up, then behind his head, knelt and proceeded to lay on the ground face- 13 down, finally placing his hands behind his back. (Id. at 1:25-30.) As he began to lay down and 14 while he was on the floor Plaintiff began saying “I’m sorry, I’m sorry” multiple times. (Id. at 15 1:29-36.) When Officer O’Neill arrived next to Plaintiff, Plaintiff was already on the ground, and 16 Officer Sousa was on top of Plaintiff, holding his left arm behind his back. (Dkt. No. 62-3 at 1:00- 17 02.) At his deposition, Officer O’Neill testified about what he did when he arrived: 18 Q: Okay. And so what did you do when you walked up? 19 A: I grabbed ahold of Mr. Johnson’s right arm, applied a twist lock to 20 gain control, put it to the rear of his back for handcuffing.

21 Q: Now, did Mr. Johnson try to punch you or kick you when you approached? 22 A: No. 23 Q: Did he, you know, yell any profanities at you directly when you 24 approached?

25 A: I don’t recall.

26 Q: When you grabbed hold of his right arm, did he, you know, try to pull it away from your hold? 27 1 Q: But did he stiffen his arm, like, flexing his muscles?

2 A: To an extent.

3 Q: Did he do anything that made you feel like he wasn’t going to comply with you? 4 A: Did he do anything to make me feel like he wasn’t going to 5 comply?

6 Q: Yeah.

7 A: I would say that the act of flight from running had my concern from the beginning that he may immediately resume his 8 resistance.”

9 (Dkt. No. 62-3 at 25-26 (emphasis added).) Officer O’Neill further explained why he applied a 10 twist lock: “I apply a twist lock to gain control of the arm. Should he choose to regain resistance, 11 that would keep a control. Brought the arm behind his back for handcuffing.” (Id. at 27 12 (emphasis added).) 13 Based on Officer O’Neill’s testimony, a reasonable trier of fact could find Plaintiff was not 14 resisting arrest when Officer O’Neill applied the twist lock. He testified he used the twist lock in 15 case Plaintiff “resumed” resistance, or “regained” resistance, supporting an inference Officer 16 O’Neill did not perceive any resistance at the time he used the twist lock. Video of the arrest is 17 consistent with a lack of resistance at the time Officer O’Neill applied the twist lock. (Dkt. No. 63 18 at 4 at 1:25-30.) And neither Officer Sousa’s police report nor Officer O’Neill’s supplemental 19 report state Plaintiff was actively resisting arrest once he got down on the ground. (Dkt. No. 62-3 20 at 12; Dkt. No. 63 at 12-14.) 21 Defendants’ insistence Plaintiff admitted he was resisting arrest at the time Officer O’Neill 22 used the twist lock is unpersuasive. An officer questioned Plaintiff at the hospital while he was 23 being treated for his injury: 24 A: Yea, and then another guy came and then I tried to put my head 25 back square and then he jumped on me…

26 Q: Okay

27 A: Or, he did his job. And then he grabbed my elbow. And, you know, 1 (Dkt. No. 63 at 5 at 2(b) at 40:40-41:00.) Drawing all reasonable inferences in Plaintiff’s favor, 2 this statement is not an admission he stiffened his right arm and so was actively resisting Officer 3 O’Neill’s attempt to handcuff him. In the statement he does not explain what he meant by “I’m 4 tense so I was stiff,” including where he was stiff, and Defendants did not ask him about the 5 statement at his deposition. Further, he immediately disclaims any resistance, supporting an 6 inference that when he said he was stiff he was not stiff in his arm such that he was resisting 7 arrest. While a reasonable trier of fact could interpret his statement as an admission of resistance, 8 that is not the only reasonable interpretation of the statement. 9 “Viewing the evidence in the light most favorable to the nonmoving party,” the Court 10 cannot find that, as a matter of law, Officer O’Neill used reasonable force in restraining Plaintiff 11 by using a twist-lock when Plaintiff was laying prone with his hands behind his back. Deveraux v. 12 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 13 2000) (en banc)). 14 2. Officer Sousa as an Integral Participant 15 It is undisputed Officer Sousa did not himself fracture Plaintiff’s elbow, so he may only be 16 liable for this injury under an “integral participant” theory of liability. An officer may be held 17 liable under § 1983 when he does not “intervene to prevent an ongoing constitutional violation.” 18 Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022). To be liable as an “integral participant,” an 19 officer “must be more than a ‘mere bystander.’” Reynaga Hernandez v. Skinner, 969 F.3d 930, 20 941 (9th Cir. 2020) (quoting Bravo v. City of Santa Maria, 665 F.3d 1076, 1090 (9th Cir. 2011)). 21 The Ninth Circuit has held there are two situations when such liability exists:

22 (1) the defendant knows about and acquiesces in the constitutionally defective conduct as part of a common plan with those whose conduct 23 constitutes the violation or

24 (2) the defendant sets in motion a series of acts by others which the defendant knows or reasonably should know would cause others to 25 inflict the constitutional injury. 26 Montoya, 51 F.4th at 889 (cleaned up). The Ninth Circuit has held the first category “is fairly 27 narrow.” Id. 1 Sousa’s liability under either theory. Indeed, at oral argument, Plaintiff conceded this theory of 2 liability against Officer Sousa. So, Defendants’ motion for summary judgment on Plaintiff’s 3 claim Officer Sousa was an integral participant in Officer O’Neill’s alleged use of excessive force 4 is granted. 5 B. Qualified Immunity 6 Next, Officer O’Neill claims he is at least entitled to qualified immunity based on the 7 following undisputed facts: (1) Plaintiff “appeared to be under the influence of a controlled 8 substance”; (2) Plaintiff “was a known and documented potential threat to law enforcement;” (3) 9 he had “only moments prior, disobeyed Officer Sousa’s lawful commands;” (4) and he “feigned 10 ‘surrender;’” (5) and then fled “from Officer Sousa on foot;” (6) after which “there were children 11 and a then unknown man in the immediate area;” (7) where Plaintiff had not yet been searched for 12 weapons and was wearing a baggy jacket that could conceal such items;” and (8) “where Plaintiff 13 was presenting active resistance to handcuffing.” (Dkt. No. 62 at 23-24 (emphasis added).) 14 As discussed above, however, fact 8 is in genuine dispute. See Morales v. Fry, 873 F.3d 817, 824 15 (9th Cir. 2017) (“[W]hen there are disputed factual issues that are necessary to a qualified 16 immunity decision, these issues must first be determined by the jury before the court can rule on 17 qualified immunity.”); see also S.R. Nehad, 928 F.3d at 1140-41 (denying qualified immunity 18 claim at summary judgment because “genuine disputes of material fact,” including whether the 19 defendant acted with excessive force, precluded such a ruling). 20 So, Officer O’Neill’s motion for summary judgment based on qualified immunity is 21 DENIED. 22 C. State Law Claims 23 Defendants also move for summary judgment on Plaintiff’s state law claims based on his 24 first theory of alleged wrongful conduct: Officer O’Neill’s application of a twist lock resulting in 25 Plaintiff’s fractured elbow. 26 1. Battery 27 “A state law battery claim is a counterpart to a federal claim of excessive use of force. In 1 Ransweiler, 171 Cal. App. 4th 516, 527 (2009). Because the analysis is the same for the state law 2 cause of action, see id., the Court DENIES judgment as to Officer O’Neill and the City of Santa 3 Rosa and GRANTS as to Officer Sousa. 4 2. Bane Act (California Civil Code § 52.1) 5 To succeed on a claim under the Bane Act, a plaintiff must show “(1) intentional 6 interference or attempted interference with a state or federal constitutional or legal rights, and (2) 7 the interference or attempted interference was by threats, intimidation or coercion.” Id. at 67. 8 Further, “the elements of the excessive force claim under § 52.1 are the same as under § 1983.” 9 Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013). And Plaintiff concedes the Act also 10 requires he prove Defendants acted with “specific intent to violate [his] right to freedom from 11 unreasonable seizure.” Reese v. County of Sacramento, 888 F.3d 1030, 1043-1044 (9th Cir. 2018) 12 (quoting Cornell v. City and County of San Francisco, 17 Cal. App. 5th 766, 801 (2017)). A 13 plaintiff must demonstrate the defendant committed “the act in question with the particular 14 purpose of depriving the citizen victim of his enjoyment of the interests protected by that right.” 15 Cornell, 17 Cal. App. 5th at 803 (cleaned up). Notably, “even if the defendant did not in fact 16 recognize the unlawfulness of his act, he will be adjudged as a matter of law to have acted with the 17 requisite specific intent—i.e., in reckless disregard of constitutional or statutory prohibitions or 18 guarantees.” Id. (cleaned up). 19 Because the Bane Act excessive force inquiry is the same as it is for § 1983, see Cameron, 20 713 F.3d at 1022, the Court GRANTS the motion as to Officer Sousa, since Plaintiff failed to 21 identify evidence sufficient to support a finding Officer Sousa was an integral participant in the 22 alleged violation. As for Officer O’Neill and the first element, there is a genuine dispute of fact as 23 to whether Officer O’Neill used excessive force against Plaintiff. There is also a genuine dispute 24 as to the second element. The record supports a finding Officer O’Neill used a restrictive hold on 25 Plaintiff that caused his elbow to fracture while Plaintiff had surrendered and was not resisting 26 arrest. A reasonable trier of fact could conclude Plaintiff’s lack of resistance was known to 27 Officer O’Neill and that he nevertheless used a twist lock that resulted in Plaintiff’s injury. Under 1 excessive force against Plaintiff. As such, the Court DENIES the motion for summary judgment 2 on the Bane Act as to Officer O’Neill and the City of Santa Rosa. 3 3. Negligence 4 California negligence claims require a showing “that the defendant had a duty to use due 5 care, that he breached that duty, and that the breach was the proximate or legal cause of the 6 resulting injury.” Hayes v. Cnty. Of San Diego, 57 Cal.4th 622, 627 (2013). Defendants move for 7 summary judgment on the grounds the negligence claims must fail if the § 1983 and Bane Act 8 claims fail. (Dkt. No. 62 at 29.) Because those claims survive as to Officer O’Neill, so does the 9 negligence claim. And, because they fail as to Officer Sousa, summary judgment in Officer 10 Sousa’s favor is warranted on the negligence claim. Plaintiff does not identify anything other than 11 his alleged—but unsupported—integral participation in support of the alleged negligence. So, the 12 Court GRANTS summary judgment as to Officer Sousa and DENIES as to Officer O’Neill and 13 the City of Santa Rosa. 14 II. Pain and Hurt Wrist 15 Plaintiff alleges in his complaint that Defendants are liable, not only for their excessive 16 force in fracturing his elbow, but also for “intentionally placing the Plaintiff in handcuffs despite 17 having notice that Plaintiff’s elbow was fractured, causing him intense pain.” (Dkt. No. 21 ¶ 24.) 18 In their motion for summary judgment, Defendants do not address this liability theory. Instead, 19 Defendants’ motion for summary judgment focuses singularly on Plaintiff’s fractured elbow and 20 how Officer O’Neill acted properly in applying the twist lock. (See, e.g., Dkt. No. 62 at 7-8 (“This 21 Motion for Summary Adjudication therefore asks this Court to determine, as a matter of law, 22 whether it was objectively unreasonable for the Defendant Officers, and specifically, Officer 23 Christopher O’Neill, to use a ‘wrist lock’ control hold – among the lowest options available on the 24 use of force continuum – to control and secure Plaintiff to effectuate his lawful arrest on the date 25 of the incident in question, when, at the time that said force was used against Plaintiff: . . . . 26 Plaintiff was still presenting resistance”); Dkt. No. 66 at 9 (“In this case, given the allegations 27 of Plaintiff’s Complaint and his arguments raised in Opposition, the quantum of force at issue in 1 control hold to the then actively resistant Plaintiff”). And Defendants’ brief only makes a passing 2 reference that their use of handcuffs was reasonable, but does not explain or clarify they seek 3 summary judgment on this issue. (Id. at 22 (“Under these circumstances, where ..; the Defendant 4 Officers’ use of force – application of a ‘twist lock’ control hold for handcuffing – was objectively 5 reasonable. So, too, was their use of handcuffs to secure Plaintiff.”).) While Defendants did not 6 address this liability theory in their motion or reply, Plaintiff’s opposition preserved this theory. 7 (Dkt. No. 65 at 7 (“Similarly, a jury can also find that neither SOUSA nor O’NEILL took any 8 steps to address JOHNSON’s broken arm for over 15 minutes after they had heard it break. 9 Instead the officers continued to keep Plaintiff handcuffed with his arms behind his back.”).) 10 The only potentially relevant evidence to this issue Defendants highlight is in the context 11 of whether Officer Sousa was an integral participant. (Dkt. No. 62 at 24-25.) That evidence is 12 Plaintiff’s testimony that Officer Sousa handled him “with some care.” (Dkt. No. 62-5 at 22.) But 13 given there is no evidence as to what Plaintiff meant by this statement, it is insufficient to defeat 14 Plaintiff’s claim the officers unconstitutionally prolonged his handcuffing, thus causing him 15 injury. 16 Because Defendants failed to move on this ground, the Court does not grant judgment on 17 liability as to Officers Sousa or O’Neill for their alleged excessive force in maintaining Plaintiff in 18 handcuffs while he was injured, and in not placing him in a more comfortable position until some 19 time later. 20 III. Punitive Damages 21 Punitive damages in a § 1983 action are permissible when “the defendant’s conduct is 22 shown to be motivated by evil motive or intent, or when it involves reckless or callous 23 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). 24 Under California law, a plaintiff must prove “by clear and convincing evidence that the defendant 25 has been guilty of oppression, fraud or malice.” Cal. Civ. Code § 3294 (a). 26 Here, the footage provided by Defendants shows the moment where Officer O’Neill broke 27 Plaintiff’s elbow. (62-3 at 4 at 1:03-04.) Further, Officer O’Neill testified that he heard the sound 1 Ud. at 28-29.) He also testified that he believed he had injured Plaintiff at this time. (/d. at 29.) 2 Given these facts, a reasonable trier of fact could conclude Officer O’Neill acted with the requisite 3 intent under both California and Federal law. 4 And, since Defendants did not seek summary judgment on the injury to Plaintiffs wrist 5 and keeping Plaintiff in prolonged discomfort, the Court cannot grant summary judgment on 6 || punitive damages for that theory of excessive force either. 7 CONCLUSION 8 The Court GRANTS Defendants’ motion for summary judgment as to Officer De Leon 9 || because Plaintiff voluntarily dismissed his claims against Officer De Leon. 10 The Court GRANTS Defendants’ motion for summary judgment as to Officer Sousa’s 11 participation in fracturing Plaintiff's elbow because, as Plaintiff conceded at oral argument, no 12 || reasonable trier of fact could find Officer Sousa was an integral participant in the conduct leading 5 13 to that injury. 14 In all other respects, the motion for summary judgment is DENIED for the reasons 3 15 explained above. 16 This Order disposes of Docket No. 62.

IT IS SO ORDERED.

|] Dated: November 21, 2024 19 20 gut ath oy

CQUYELINE SCOTT CORLEY

nited States District Judge 22 23 24 25 26 27 28