2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 JOHN GONZALEZ, Case No. 2:18-cv-02346-ODW (GJSx) 12 Plaintiff, 13 v. CITY OF EL MONTE, et al. ORDER GRANTING IN PART AND 14 Defendants. DENYING IN PART DEFENDANTS’ 15 MOTION FOR SUMMARY 16 JUDGMENT [25] 17 18 I.INTRODUCTION 19 Plaintiff, John Gonzalez (“Gonzalez”), brings this action against Defendants City of El Monte (the “City”), and Police Officers Michael Balzano (“Balzano”), Al 20 Hernandez (“Hernandez”), Carlos Tello (“Tello”), David Reynoso (“Reynoso”), 21 Miriam Cuevas (“Cuevas”),1 and DOES 1 through 10. Gonzalez alleges various claims pursuant to 42 U.S.C. § 1983 and supplemental state law claims. Gonzales 22 alleges that he was unlawfully searched and that the Defendant Officers used 23 excessive force to detain him. 24 Pending before the Court is Defendants’ Motion for Summary Judgment (“Motion”). (Mot., ECF No. 25.) For the following reasons, the Court GRANTS IN 25 PART and DENIES IN PART Defendants’ Motion.2 26 27 28 1 II.BACKGROUND 2 C. Police Incident On July 30, 2017, Balzano, Tello, Hernandez, and Cuevas (collectively, 3 “Officers”) were dispatched to Plaintiff’s residence for a potential domestic violence 4 incident. (See Defs.’ Separate Statement of Uncontroverted Facts (“DSUF”) 1, ECF 5 No. 25-1.) The dispatch indicated a male was punching a female and pushing her into the bushes. (DSUF 1.) Plaintiff matched the description of the assailant given in the 6 dispatch call. (DSUF 1.) The Officers found the door to Plaintiff’s home open and 7 asked Plaintiff’s female companion, Valdez, to step outside. (See DSUF 3.) Defendants state Plaintiff attempted to follow Valdez out the door. (DSUF 4.) 8 Plaintiff states he did not. (Pl.’s Statement of Disputed Facts (“PSDF”) 3, ECF 9 No. 27.) Balzano entered the residence and instructed Plaintiff to turn around so 10 Balzano could pat him down for weapons. (DSUF 4.) Plaintiff turned around, but the parties dispute whether or not he placed his hands behind his back. (See DSUF 4; 11 PSDF 4.) Balzano believed he needed to execute a pat down search because of the 12 nature of the call and the fact Plaintiff was agitated, sweating, and wearing baggy pants capable of concealing a weapon. (DSUF 5.) The parties dispute whether 13 Plaintiff smelled of alcohol at the time. (PSDF 5.) 14 Defendants state that once Balzano tried to pull Plaintiff’s hands behind his back, Plaintiff pulled away, took a fighting stance, and balled his hands into fists. 15 (DSUF 6–7.) Plaintiff disputes these actions. (PSDF 6–7.) At some point Hernandez 16 drew his TASER, pointed it at Plaintiff, and told him to place his hands behind his 17 back, and if he did not, he would be “tased.” (DSUF 8.) After Hernandez pointed the TASER at Plaintiff, Plaintiff began to turn back around. (DSUF 8.) Balzano 18 attempted to place Plaintiff’s hands behind his back. (DSUF 8.) Defendants assert 19 that Plaintiff pulled away again. (DSUF 8.) Plaintiff asserts that he did not pull away. (PSDF 8.) 20 Subsequently, Balzano wrapped his right arm around Plaintiff’s head, neck, and 21 shoulder area and used his body weight and momentum to bring Plaintiff to the floor. 22 (DSUF 9.) Parties dispute whether Balzano’s conduct constituted a “carotid hold.” (See DSUF 9; PSDF 9.) Plaintiff asserts he almost lost consciousness due to 23 Balzano’s choking action. (PSDF 9.) Hernandez then stepped over Balzano and put 24 his weight on top of Plaintiff’s torso and leg area to gain physical control of Plaintiff. (DSUF 10.) 25 Defendants assert that Plaintiff tensed up his body, resisted placing his arms 26 behind his back, and tucked his arms in. (DSUF 11.) Plaintiff asserts he did not tense 27 up and was compliant. (PSDF 11.) In an effort to restrain Plaintiff, Balzano punched Plaintiff, but the parties dispute the extent of the punching. (DSUF 12.) Defendants 28 contend Balzano punched Plaintiff twice as he continued to scream and resist. (DSUF 12.) Plaintiff asserts Balzano punched him four to six times in the right side 1 of the face, six times on the left side, and twice in the back of his head. (PSDF 12.) 2 After Balzano’s punches, Hernandez applied his TASER on Plaintiff’s torso and right 3 leg using the “probe mode” and the “drive-stun mode.” (DSUF 13.) Defendants assert that Plaintiff continued to stiffen his muscles and kicked his legs. (DSUF 13.) 4 After Hernandez felt his initial efforts were unsuccessful, he “completed the circuit” 5 on the second execution at which point Plaintiff’s muscles relaxed. (DSUF 13.) Plaintiff maintains that he did not tense his muscles and could not have kicked his leg 6 because he wears a prosthesis. (PSDF 13.) Plaintiff asserts that Hernandez 7 discharged his TASER one to two seconds after Balzano brought Plaintiff to the floor. 8 (PSDF 10.) The entire incident lasted twenty to thirty seconds before Plaintiff was 9 handcuffed. (DSUF 15.) After he was handcuffed, Plaintiff alleges Balzano stepped 10 on his right wrist. (Pl.’s Additional Undisputed Facts (“PAUF”) 23, ECF No. 27.) Plaintiff also alleges that inside the patrol vehicle, Defendants denied Plaintiff’s 11 request to loosen the handcuffs. (PAUF 24.) Plaintiff contends that, due to the 12 incident, he suffered injuries including permanent optic nerve damage to the right eye, a fracture in his right wrist, and bruising and bleeding in his right eye. (PAUF 25.) 13 D. Police Training 14 Hernandez received TASER training at the police academy. (DSUF 14.) The 15 TASER guideline calls for a target range of five to fifteen feet. (Decl. of Cameron 16 Sehat (“Sehat Decl.”) Exh. D (“Hernandez Dep.”), 9:11–10:22, ECF No. 26-4.) At training, Hernandez deployed the darts at a distance greater than 10 feet. (PAUF 19.) 17 During the altercation with Plaintiff, Hernandez deployed the darts with the TASER 18 pressed up against Plaintiff’s skin and punctured his skin. (PAUF 20.) Both Balzano and Hernandez have been trained in de-escalation measures and 19 taught to avoid instigating physical confrontation by using communication tools. 20 (PAUF 7.) Additionally, Balzano learned at training that punching an individual in 21 the face or head area could cause a lethal injury. (PAUF 12.) 22 23 24 25 26 27 28 1 E. Plaintiff’s Complaint Plaintiff subsequently filed the present lawsuit asserting seven claims for relief: 2 (1) violation of § 1983 for unreasonable search and seizure and use of excessive force; 3 (2) Monell claim pursuant to § 1983; (3) violation of § 1983 for failure to train and 4 supervise; (4) negligent hiring, training, and supervision; (5) battery; (6) intentional infliction of emotional distress; and (7) negligence. (See generally Compl., ECF 5 No. 1.) Defendants move for summary judgment as to all claims. (Mot. 2.) 6 III. LEGAL STANDARD 7 A court “shall grant 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 8 matter of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 9 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 10 U.S. 372, 378 (2007). A disputed fact is “material” where the resolution of that fact might affect the outcome of the suit under the governing law, and the dispute is 11 “genuine” where “the evidence is such that a reasonable jury could return a verdict for 12 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 13 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 14 730, 738 (9th Cir. 1979). Moreover, though the Court may not weigh conflicting evidence or make credibility determinations, there must be more than a mere scintilla 15 of contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc., 16 198 F.3d 1130, 1134 (9th Cir. 2000). 17 Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 18 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 19 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 20 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and 21 “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha 22 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). The court should grant summary judgment against a party who fails to demonstrate facts sufficient to 23 establish an element essential to his case when that party will ultimately bear the 24 burden of proof at trial. See Celotex, 477 U.S. at 322. Pursuant to the Local Rules, parties moving for summary judgment must file a 25 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should 26 set out “the material facts as to which the moving party contends there is no genuine 27 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of Genuine Disputes” setting forth all material facts as to which it contends there exists a 28 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that material facts as claimed and adequately supported by the moving party are admitted to exist without 1 controversy except to the extent that such material facts are (a) included in the 2 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 3 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 4

IV. DISCUSSION

Defendants move for summary judgment on each of Plaintiff’s claims on the 5 grounds that Plaintiff’s conduct during discovery warrants barring Plaintiff from 6 testimfying. Without that testimony Plaintiff would have no evidence to dispute Defendants’ material facts. Alternatively, Defendants claim that the material facts are 7 undisputed and their (Defendant Officers’) conduct was reasonable under the 8 circumstance. If the Court were to find a material dispute, Defendants claim the 9 officers are entitled to qualified immunity and secondly, Plaintiff’s plea in the underlying criminal case bars his civil claim. The Court addresses each argument in 10 turn. 11 Before addressing the merits of Defendants’ Motion, the Court addresses three preliminary matters: (1) Defendants’ objection to Plaintiff’s deposition testimony 12 (Mot. 9); (2) Defendants’ request to exclude Plaintiff’s witnesses as a sanction for 13 untimely disclosure (Mot. 12); and (3) Defendants’ objections to Plaintiff’s evidence (See Defs.’ Objections to Pl.’s Evidence, ECF No. 30). 14 Discovery and Evidentiary Matters 15 5. Objection to Plaintiff’s Deposition Testimony 16 Defendants claim that Plaintiff should be precluded from providing testimony at 17 trial or submitting a declaration in opposition to this Motion because he improperly invoked his Fifth Amendment privilege against self-incrimination. (Mot. 9.) 18 The Fifth Amendment states, “[n]o person . . . shall be compelled in any criminal 19 case to be a witness against himself.” U.S. Const. amend. V. The privilege extends to “answers that would . . . support a conviction . . . [or] furnish a link in the chain of 20 evidence needed to prosecute the claimant.” Hoffman v. United States, 341 U.S. 479, 21 486 (1951). Individuals invoking the privilege should have “reasonable cause to 22 apprehend danger from a direct answer.” Id. The Court may determine whether the silence was justified or if the individual appears to have been clearly mistaken. Id. 23 Trial courts may prohibit parties from invoking the privilege against self- 24 incrimination during a deposition and later testifying on the same subject matter at trial to promote full and equal discovery and prevent surprise, prejudice, and perjury. 25 Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 910 (9th Cir. 2008). “However, 26 ‘the competing interests of the party asserting the privilege, and the party against 27 whom the privilege is invoked must be carefully balanced,’ and ‘the detriment to the party asserting it should be no more than is necessary to prevent unfair and 28 unnecessary prejudice to the other side.’” Id. (quoting Doe ex rel. Rudy–Glanzer v. 1 Glanzer, 232 F.3d 1258, 1265 (9th Cir. 2000)). 2 On October 12, 2018, Defendants deposed Plaintiff while Plaintiff’s criminal case 3 was still pending. (Opp’n. to Mot. (“Opp’n”) 13, ECF No. 28.) Though Plaintiff answered questions at his deposition regarding his education, living situation, and lack 4 of employment, he did not answer questions about the incident with the police. (Mot. 5 12.) Defendants claim that Plaintiff lacked reasonable cause to believe that his answers might lead to self-incrimination. (Mot. 10.) Plaintiff had been arrested for 6 and charged with resisting arrest. However, answers to questions regarding who was 7 present at the scene or in his home could provide information about witnesses 8 furnishing a link in the chain of evidence required to prosecute the case against him. Furthermore, answering questions about his injuries and damages would require him 9 to discuss how or why those injuries occurred, also possibly furnishing a link in the 10 chain. Thus, Plaintiff was well within his right to invoke the privilege against self- incrimination. 11 Here, Defendants argue that Plaintiff’s invocation of his fifth amendment right 12 barred them a meaningful opportunity to conduct discovery. (Mot. 9–12.) Defendants assert that, because of this hardship, Plaintiff should be prohibited from testifying at 13 trial, and any declaration by Plaintiff in opposition of this Motion should not be 14 considered. (Mot. 9.) However, Defendants do not indicate how they were 15 prejudiced. Again, the criminal case was still pending against Plinatiff at the time of his deposition. In fact, Plaintiff offered to stay the civil case until the criminal case 16 was resolved. (Opp’n. 12.) Further, Defendants could have propounded other 17 discovery mechanisms in the period between the final determination of the criminal proceeding and the end of the civil discovery period. Additionally, Defendants could 18 have requested an extension of the discovery cut-off. Given the posture of the case 19 vis-a-vis the criminal matter and the fact that the pendency of the criminal matter 20 would of necessity hinder full discovery in the civil case, it is almost a certainty that a request to extend the discovery cut-off would have been granted. . As Defendants 21 chose not to accept plaintiff’s offer to stay the instant matter, or employ other 22 discovery mechanisms available under the Federal Rules of Civil Procedure, the Court sees no unavoidable hardship to the Defendants. Thus, the Court denies Defendants’ 23 request to strike Plaintiff’s deposition testimony or declaration and bar him from 24 testifying at trial. 25 26 27 28 1 6. Request to Exclude Plaintiff’s Witnesses for Untimely Disclosure Defendants next assert that Plaintiff failed to make Initial Disclosures as required 2 by Federal Rule of Civil Procedure (“Rule”) 26(a) and instead provided the names of 3 his witnesses on the discovery deadline. As a remedy, Defendants seek to exclude 4 Plaintiff’s witnesses. Rule 37(c)(1) automatically excludes any evidence not properly disclosed under Rule 26(a). Yeti by Molly v. Deckers Outdoor Corp., 259 F.3d 1101, 5 1106 (9th Cir. 2001). However, exclusion under Rule 37(c)(1) is not appropriate if 6 the failure to disclose was substantially justified or harmless. Id. Here, on July 23, 2018, Plaintiff made its initial disclosures required by Rule 26 7 (a)(1).3 (See Sehat Decl. Exh. B, ECF No. 26-2.) Thereafter, the Court issued its 8 Scheduling Order, setting the deadline for the percipient witness and fact discovery 9 cutoff at June 3, 2019. (Scheduling Order.) On June 3, 2019, Plaintiff provided a document titled “supplemental disclosures” with the names of his witnesses. (Mot. 10 16.) Since Plaintiff provided the required discovery before the Court-imposed 11 deadline, Plaintiff’s disclosure was timely. Because Plaintiff disclosed all information required under the rules by the deadline in the Court’s Scheduling and Case 12 Management Order (“Scheduling Order”), the Defendants’ request to exclude 13 Plaintiff’s witnesses on the basis of tardy disclosure is denied. (Scheduling Order, ECF No. 22.) 14

15 As noted, Defendants could have requested to enlarge the discovery period if 16 they wished to propound additional discovery based on Plaintiff’s disclosure. Furthermore, Defendants, having knowledge of the deadlines in the Scheduling Order, 17 18 3 Procedural rules require parties to make initial disclosures that include: 19 (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the 20 disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; 21 (ii) a copy--or a description by category and location--of all documents, electronically 22 stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would 23 be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party--who 24 must also make available for inspection and copying as under Rule 34 the documents or 25 other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries 26 suffered; and 27 (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the 28 action or to indemnify or reimburse for payments made to satisfy the judgment. Fed. R. Civ. P. 26 (a)(1). chose to retain an expert before the discovery deadline and therefore, cannot refer to 1 their decision as a basis of hardship and prejudice. (Mot. 17.) Defendants’ requested 2 sanction lacks merit and is denied. 3 7. Defendants’ Objections to Plaintiff’s Evidence 4 The Court does not rely on any of the evidence under objection and thus, the objections are moot. See Smith v. Cty. of Humbolt, 240 F. Supp. 2d 1109, 1115 (N.D. 5 Cal. 2003). To the extent that this Order relies on any other evidence without 6 discussion of the objection, the relevant objections are overruled. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1118, 1122 (E.D. Cal. 2006) 7 (concluding that “the court will proceed [only] with any necessary rulings on 8 defendants’ evidentiary objections”). 9 E. Qualified Immunity 10 Defendants assert they are entitled to qualified immunity. (Mot. 24.) “The doctrine of qualified immunity insulates government agents against personal liability 11 for money damages for actions taken in good faith pursuant to their discretionary 12 authority.” Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). Qualified immunity requires a two-pronged analysis: (1) “whether the facts that a plaintiff has 13 alleged or shown make out a violation of a constitutional right” and (2) “whether the 14 right at issue was clearly established at the time of the defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citations and 15 quotation marks omitted); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). A 16 clearly established constitutional right “must be particularized to the facts of the case.” 17 Davis v. United States, 854 F.3d 594, 599 (9th Cir. 2017) (internal quotation marks omitted). “[T]he focus is on whether the officer had fair notice” that his actions 18 violated a constitutional right and were unlawful. Kisela v. Hughes, 138 S. Ct. 1148, 19 1152 (2018). Where the constitutional right violated was clearly established, the officer was on notice that his conduct was unreasonable, and he is not entitled to 20 qualified immunity. A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1013 21 (9th Cir. 2016). 22 A court may address either prong of the qualified immunity analysis first. Pearson, 555 U.S. at 236. If the answer to either prong is no, the court need not 23 continue with the analysis, as the officer is entitled to qualified immunity (either 24 because he has violated no constitutional right, or because the right was not clearly established at the time). See Wilkins v. City of Oakland, 350 F.3d 949, 954–55 (9th 25 Cir. 2003). 26 As to each claim, the Court will first address whether the facts support the 27 alleged constitutional violation, then turn to whether the right at issue was clearly established at the time of Defendants’ alleged misconduct. In its discussion, the Court 28 considers Defendants’ arguments based on the undisputed facts and construes all 1 disputed facts in the light most favorable to Plaintiff. 2 F. Section 1983 Claims 3 To prevail under 42 U.S.C. § 1983, a plaintiff must prove: (1) he or she was 4 “deprived of a right secured by the Constitution or laws of the United States,” and (2) “the alleged deprivation was committed under color of state law.” Marsh v. Cty. of 5 San Diego, 680 F.3d 1148, 1152 (9th Cir. 2012) (quoting Am. Mfrs. Mut. Ins. Co. v. 6 Sullivan, 526 U.S. 40, 49–50 (1999)). a. Excessive Force, 42 U.S.C. § 1983 7 Plaintiff alleges that Defendants used excessive force in violation of 42 U.S.C. 8 § 1983 during the arrest of Plaintiff. 9 Violation of Constitutional Rights 10 Excessive use of force incident to a search or seizure is subject to the Fourth 11 Amendment’s objective reasonableness requirement. Graham v. Connor, 490 U.S. 12 386, 395 (1989). The Ninth Circuit analyzes excessive force by first “considering the 13 nature and quality of the alleged intrusion” and then considering “the governmental 14 interests at stake.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (citing 15 Deorle, 272 F.3d at 1279–80). Courts consider “(1) how severe the crime at issue is, 16 (2) whether the suspect posed an immediate threat to the safety of the officers or 17 others, and (3) whether the suspect was actively resisting arrest or attempting to evade 18 arrest by flight.” Id. “[A]n officer’[s] ‘provocative conduct’ can trigger an 19 individual’s ‘limited right to offer reasonable resistance.’” Young v. Cty. of Los 20 Angeles, 655 F.3d 1156, 1164 (9th Cir. 2011) (quoting Arpin v. Santa Clara Valley 21 Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001)). “[T]here are no per se rules in 22 the Fourth Amendment excessive force context; rather, courts must still slosh [their] 23 way through the factbound morass of reasonableness.” Mattos, 661 F.3d at 441 24 (alteration in original) (internal quotation marks omitted) (quoting Scott, 550 U.S. at 25 383). 26 The reasonableness of the force used is “judged from the perspective of a 27 reasonable officer on the scene.” Graham, 490 U.S. at 396. An officer cannot simply 28 1 claim that he “fear[ed] for his safety or the safety of others . . . there must be objective 2 factors to justify such a concern.” Young, 655 F.3d at 1163. Thus, excessive force 3 claims will usually present jury questions: “[w]here the objective reasonableness of an 4 officer’s conduct turns on disputed issues of material fact, it is a question of fact best 5 resolved by a jury; only in the absence of material disputes is it a pure question of 6 law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (internal 7 quotation marks omitted) (quoting Wilkins, 350 F.3d at 955 and Scott, 550 U.S. at 381 8 n.8). As such, “summary judgment or judgment as a matter of law in excessive force 9 cases should be granted sparingly.” Id. at 1125 (quoting Santos v. Gates, 287 F.3d 10 846, 853 (9th Cir. 2002)). 11 Here, Defendants contend that no genuine issues of material fact exist because 12 Plaintiff’s testimony and that of his witnesses should be excluded. However, as the 13 Court denied Defendants’ request to exclude testimony from Plaintiff and his 14 witnesses, genuine disputes of material facts remain. (See generally, PSDF; PAUF.) 15 For example, though Defendants assert they punched Plaintiff twice to secure control 16 as he resisted arrest and therefore acted reasonably under the circumstances, Plaintiff 17 asserts that Defendants punched him eighteen to twenty times even though he was 18 unarmed and not resisting. Furthermore, Plaintiff maintains that despite following 19 Defendants’ instructions to turn around and place his hands behind his back, he was 20 placed in a chokehold and tackled. (DSUF 9.) When Defendants failed to restrain 21 Plaintiff, Hernandez executed two cycles of the TASER. (DSUF 13.) Given the 22 disputed facts, a reasonable jury could find the force used to be excessive. 23 Furthermore, a reasonable jury could find that Plaintiff posed no immediate 24 threat to Defendants as there was no evidence of physical violence between Plaintiff 25 and his partner and he bore no weapon. (PAUF 2.) Balzano asserts that he believed 26 Plaintiff was a threat because he was agitated, sweating, wearing baggy pants capable 27 of concealing a weapon, and kept one of his hands under his body potentially reaching 28 1 for a weapon. (DSUF 5.) However, Plaintiff maintains his hands were visible to 2 Defendants during the entire altercation. (PAUF 8, 22.) 3 Though Plaintiff maintains he did not resist being handcuffed, even if he had, a 4 jury may find his actions reasonable. Defendants’ conduct as described by Plaintiff 5 qualifies as sufficiently provocative to trigger the limited right of resistance and a jury 6 could conclude that stiffening muscles in anticipation of punches was a reasonable 7 response to Defendants’ actions. See Blankenhorn v. City of Orange, 485 F.3d at 8 479–80. For example, in Blankenhorn, the court found a limited right to resistance 9 applied where “arresting officers gave no warning that they were going to arrest [a 10 suspect who refused an officer's order to kneel down to be handcuffed] before gang- 11 tackling him and later applying hobble restraints.” Id. The court observed that “[t]he 12 lack of forewarning, the swiftness, and the violence with which the defendant officers 13 threw themselves upon Blankenhorn could reasonably be considered ‘provocative,’ 14 triggering Blankenhorn's limited right to reasonable resistance and thus making their 15 later use of the hobble restraints unreasonable.” Id. 16 Here there is no allegation that Plaintiff struck or attempted to strike either 17 officer. Thus, construing all disputes in favor of Plaintiff, a reasonable jury could find 18 that if Plaintiff did not tuck his hands beneath his body, he posed no immediate threat 19 and Defendants’ conduct was excessive. 20 Additionally, “police officers have a duty to intercede when their fellow officers 21 violate the constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 22 229 F.3d 1271, 1289 (9th Cir. 2000). An officer who fails to intervene when a fellow 23 officer uses excessive force would be responsible for violating the Fourth 24 Amendment. United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994) aff’d in 25 part, rev’d in part, 518 U.S. 81 (1996). Officers who breach this duty could be held 26 liable only if they had a “realistic opportunity” to intercede. Cunningham, 229 F.3d at 27 1290. 28 1 Here, viewing the evidence in the light most favorable to Plaintiff, a reasonable 2 jury could find that each of the officers had a realistic opportunity and failed to 3 intervene when Hernandez or Balzano used excessive force on Plaintiff. 4 5. Clearly Established Rights 5 As a reasonable jury could find that Defendants used excessive force, the next 6 issue is “whether the right was clearly established” at the time. Saucier, 533 U.S. at 7 201. This requirement “does not mean that the very action at issue must have been 8 held unlawful before qualified immunity is shed.” Wall v. Cty. of Orange, 364 F.3d 9 1107, 1111 (9th Cir. 2004). Officers “can still be on notice that their conduct violates 10 established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 11 741 (2002). The issue is whether, at the time of the encounter, “the state of the 12 law . . . gave [the defendants] fair warning that their alleged treatment of [the plaintiff] 13 was unconstitutional.” Id.; see also Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 14 2004) (alteration in original) (internal quotation marks omitted) (“In excessive force 15 cases, the inquiry remains whether, under the circumstances, a reasonable officer 16 would have had fair notice that the force employed was unlawful, and [whether] any 17 mistake to the contrary would have been unreasonable.”). 18 Here, the law was clearly established at the time of the incident that a police 19 officer’s use of force on a suspect who does not pose an immediate threat is excessive 20 and impermissible. See Jaramillo v. City of San Mateo, 76 F. Supp. 3d 905, 923 (N.D. 21 Cal. 2014) (discussing that a jury could find the force unjustified where the plaintiff’s 22 hands were showing but the officer grabbed him, struck him, threw him on the 23 ground, stepped on his neck, got on top of him, and broke his ribs with his knees). 24 The law is also clearly established that an officer who fails to intervene when his 25 fellow officer uses excessive force violates the Fourth Amendment. Koon, 34 F.3d at 26 1447 n.25. 27 Accordingly, the Court concludes the Officers are not entitled to qualified 28 immunity and a reasonable jury could find use of force excessive. Thus, the Court 1 DENIES Defendants’ Motion as to qualified immunity and Plaintiff’s claim for 2 excessive use of force in violation of 42 U.S.C. § 1983. 3 a. State Law Claims 4 Defendants also move for summary judgment as to Plaintiff’s state-law claims 5 for Negligent Hiring, Training and Supervision, Battery, Intentional Infliction of 6 Emotional Distress, and Negligence. (See Mot.) 7 Negligent Hiring, Training, and Supervision 8 Plaintiff abandons this claim. (Opp’n 23.) Courts should grant summary 9 judgment on claims that parties raise but abandon at summary judgment. Ramirez v. 10 City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009) (affirming district court’s 11 grant of summary judgment on claims a party fails to address in his opposition to 12 motion for summary judgment). Thus, the Court GRANTS Defendants’ Motion as to 13 this claim. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 5. Battery 2 “A peace officer who uses unreasonable or excessive force in making a lawful 3 arrest or detention commits a battery upon the person being arrested or detained as to 4 such excessive force.” Johnson v. Bay Area Rapid Transit, 790 F. Supp. 2d 1034, 5 1074 (N.D. Cal. 2011) aff’d in part, vacated in part, rev’d in part on other grounds 6 sub nom. Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159 (9th Cir. 2013). As 7 indicated above, issues of material fact exist as to whether Defendants used 8 unreasonable or excessive force against Plaintiff. Accordingly, the Court DENIES 9 Defendants’ Motion as to Plaintiff’s battery claim. 10 6. Intentional Infliction of Emotional Distress 11 To establish a prima facie claim for IIED, Gonzalez must show: (1) extreme and 12 outrageous conduct by Defendants; (2) intent to cause, or reckless disregard of the 13 probability of causing, emotional distress; (3) Plaintiff’s severe emotional suffering; 14 and (4) actual and proximate causation of Plaintiff’s emotional distress by 15 Defendants’ outrageous conduct. Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). 16 Apart from his status as a cancer survivor, Plaintiff offers no evidence of severe 17 emotional distress resulting from Defendants’ conduct. (Opp’n 21.) Thus, the Court 18 GRANTS summary judgment as to this claim. 19 7. Negligence 20 Peace officers have a duty to act reasonably when using force, but the 21 reasonableness of the officer’s actions must be determined in light of the totality of the 22 circumstances. Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 629 (2013). To prevail 23 on a negligence claim, a plaintiff must show that the officers “acted unreasonably and 24 that the unreasonable behavior harmed” the plaintiff. Price v. Cty. of San Diego, 990 25 F. Supp. 1230, 1245 (S.D. Cal. 1998); see also Ortega v. City of Oakland, No. C07- 26 02659 JCS, 2008 WL 4532550, at *14 (N.D. Cal. Oct. 8, 2008). As discussed above, 27 a reasonable jury could find that Defendants acted unreasonably in their use of force 28 1 against Plaintiff, causing Plaintiff harm. Accordingly, the Court DENIES 2 Defendants’ Motion as to Plaintiff’s negligence claim. 3 a. Monell Claim 4 Defendants also move for summary judgment as to Plaintiff’s claims against the 5 City for municipal liability and against the City’s Chief of Police for failure to 6 investigate police misconduct and failure to train and supervise the officers. (Opp’n 7 20–21.) 8 “[T]o establish municipal liability, a plaintiff must show that a ‘policy or 9 custom’ led to the plaintiff’s injury.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 10 1073 (9th Cir. 2016) (en banc) (quoting Monell v. Dep’t of Social Servs., 436 U.S. 11 658, 694 (1978)), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 12 831 (2017). Local government entities may be liable pursuant to § 1983 only for a 13 deprivation of a right resulting from an official policy or custom. Monell, 436 U.S. at 14 694. To establish liability under Monell, a plaintiff must prove: “(1) that [the 15 plaintiff] possessed a constitutional right of which he was deprived; (2) that the 16 municipality had a policy; (3) that this policy amounts to deliberate indifference to the 17 plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the 18 constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 19 2011) (alteration in original) (quoting Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 20 130 F.3d 432, 438 (9th Cir. 1997)). Even if there was no explicit policy, a plaintiff 21 must establish liability by showing that there was a permanent and well-settled 22 practice that gave rise to the alleged constitutional violation. See City of St. Louis v. 23 Praprotinik, 485 U.S. 112, 127 (1988); Navarro v. Block, 72 F.3d 712, 714–15 (9th 24 Cir. 1996). There is not evidence to establish the existence of a policy or well-settled 25 practice which resulted in the constitutional violation. Therefore summary judgment 26 on the Monell claim is GRANTED. 27 28 1 4. Failure to Investigate Police Wrongdoing 2 Plaintiff alleges the City and Reynoso, the City’s Chief of Police, knowingly 3 maintained or permitted an official policy or custom of permitting occurrences of the 4 type alleged in the complaint such as failing to investigate or discipline police officers 5 known to have repeatedly violated the constitutional rights of the public. (Compl. ¶ 6 37.) Defendants move for summary judgment on this claim because Plaintiff failed to 7 establish any policy, practice, or custom that would expose the City to liability. (Mot. 8 29.) Indeed, Plaintiff fails to identify any policy, practice, or custom in his opposition 9 to the Motion or his statement of disputed facts. (See Opp’n; PSDF.) Thus, the Court 10 GRANTS summary judgment as to this claim. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 5. Failure to Train 2 Similarly, summary judgment is appropriate as to Plaintiff’s failure to train 3 claim. Plaintiff fails to identify any municipal policy or custom that resulted in the 4 deprivation of Plaintiff’s constitutional rights. Instead, Plaintiff offers evidence that 5 Hernandez had vision impairment during the incident such that he needed glasses, and 6 the City was aware of the impairment but continued to employ the officer. (PAUF 21; 7 Hernandez Dep. 60:9–25; Opp’n 21.) This is not sufficient to establish this claim. 8 Additionally, Plaintiff has failed to create a material dispute of fact regarding 9 his claim against the City and Reynoso for failure to train and supervise. A 10 municipality’s failure to train may create § 1983 liability where the “failure to train 11 amounts to deliberate indifference to the rights of persons with whom the [officers] 12 come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). “The issue is 13 whether the training program is adequate and, if it is not, whether such inadequate 14 training can justifiably be said to represent municipal policy.” Long v. Cty. of Los 15 Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). To establish a failure to train, a 16 plaintiff must show: (1) he was deprived of a constitutional right; (2) the municipality 17 had a training policy that “amounts to deliberate indifference to the [constitutional] 18 rights of the persons with whom [its police officers] are likely to come into contact”; 19 and (3) his constitutional injury would have been avoided had the municipality 20 properly trained those officers. Blankenhorn, 485 F.3d at 484 (alterations in original 21 and internal quotation marks omitted). 22 Here, Plaintiff contends that because Balzano did not follow the de-escalation 23 measures as taught in training during his interaction with Plaintiff, the training was 24 inadequate. Plaintiff cannot establish that the City’s training method was the cause of 25 the alleged constitutional violation simply because Defendant Balzano failed to adhere 26 to the training method. Furthermore, Plaintiff fails to demonstrate that the training 27 policy amounts to deliberate indifference as the City had a policy in place intended to 28 1 de-escalate situations to avoid or minimize the need to use force. Accordingly, the 2 Court GRANTS Defendants’ Motion as to Plaintiff’s Monell claims. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 E. Criminal Conviction Invalidating Civil Claims 2 Finally, Defendants move for summary judgment on the grounds that Plaintiff is 3 barred from bringing a civil suit if a civil judgment would invalidate the criminal 4 conviction. The Supreme Court in Heck v. Humphrey stated that “[i]n order to recover 5 damages for allegedly unconstitutional conviction or imprisonment, or for other harm 6 caused by actions whose unlawfulness would render a conviction or sentence invalid, 7 a § 1983 plaintiff must prove that the conviction or sentence has been reversed on 8 direct appeal . . . .” 512 U.S. 477, 486 (1994). However, where a civil suit does not 9 challenge the legality of a conviction, the civil suit may continue. Hooper v. Cty. of 10 San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011) (discussing that resisting arrest was 11 based on arrestee’s actions in jerking her hand away from a police officer, but 12 excessive force claim was based on being bitten by a dog). Here, Plaintiff’s civil suit 13 does not render his conviction invalid as the conviction is based on Plaintiff’s initial 14 resistance to being handcuffed while the civil suit is based on Defendant’s subsequent 15 use of punches and the TASER. (Opp’n 27.) Thus, summary judgment is DENIED 16 on this basis. 17 V. CONCLUSION 18 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN 19 PART Defendants’ Motion. (ECF No. 25.) Specifically, the Court GRANTS 20 Defendants’ Motion as to Plaintiff’s Monell claims, Negligent Hiring, Training, and 21 Supervising state-law claim, and Intentional Infliction of Emotional Distress state-law 22 claim, and DENIES Defendants’ Motion as to all other claims. 23 24 25 26 27 28 1 Accordingly, summary judgment is GRANTED as to Plaintiff's second, third, fourth, and sixth claims for relief, and all other claims will proceed. 3 oe 4 IT IS SO ORDERED. Ns, sO Yai” 6 October 3, 2019 7 g OTIS D. WRIGHT, IT 9 UNITED STATES DISTRICT JUDGE

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