Hupp

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Paul Hupp filed this action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging violations of the Fourth and Fourteenth Amendments of the United States Constitution, against the City of Walnut Creek and Walnut Creek Police Officer Mitchell Rebello. The complaint alleges that defendants violated plaintiffs constitutional rights by unlawfully seizing his person and vehicle and using excessive force in handcuffing him. The complaint also alleges that defendants intentionally inflicted emotional distress on plaintiff and that the City of Walnut Creek was grossly negligent in hiring, training and supervising its officers. The parties have filed cross motions for summary judgment.

The undisputed material facts and evidence establish that on November 21, 2003, at about 9:30 a.m., Officer Rebello, while working a seatbelt enforcement detail, stopped Mr. Hupp for wearing his seatbelt under his left arm instead of over his upper torso. Officer Rebello cited plaintiff for violating Cal. Veh.Code § 27315(d)(l)and asked plaintiff to sign the “promise to appear” portion of the citation. Plaintiff did not sign but asked to be taken before a magistrate.…