1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

ASHWIN RUPAN,

7 Case No. 20-cv-03866-JCS Plaintiff, 8 v. ORDER GRANTING MOTION FOR 9 SUMMARY JUDGMENT CITY OF OAKLAND, et al., 10 Re: Dkt. No. 205 Defendants. 11

12 13 I. INTRODUCTION 14 This case was initiated in June 2020 by seven plaintiffs who sought a temporary restraining 15 order, injunctive relief and damages on behalf of a class of demonstrators who attended protests in 16 Oakland beginning on May 29, 2020. The complaint named as defendants the City of Oakland, 17 former Interim Chief of Police Susan E. Manheimer, OPD sergeant Patrick Gonzales, OPD officer 18 Maxwell D’Orso, and OPD officer Casey Fought. On July 29, 2020, the Court entered a 19 preliminary injunction. Dkt. no. 52. On October 20, 2020, Plaintiffs filed their First Amended 20 Complaint (“FAC”) and numerous individuals – including Ashwin Rupan – were added as 21 plaintiffs. Ultimately, the injunctive relief and damages claims of all plaintiffs, except those 22 asserted by Rupan, were settled and dismissed. Dkt. no. 191, 204. A permanent injunction was 23 entered, on behalf of a class certified pursuant to Rule 23(b)(2), and the preliminary injunction 24 was vacated. The Court entered a partial judgment as to all of Plaintiffs’ claims except Rupan’s. 25 Dkt. no. 192. 26 Presently before the Court is Defendants’ Motion for Summary Judgment, or Partial 27 Summary Judgment, on Claims of Ashwin Rupan (“Motion”). Rupan has not opposed the 1 communication Rupan had with Defendants’ counsel suggesting that Rupan might be seeking such 2 an extension. See dkt. no. 209. The Court finds that the Motion is suitable for determination 3 without oral argument and therefore vacates the motion hearing set for October 27, 2023 pursuant 4 to Civ.L.R. 7-1(b). The Case Management Conference set for the same date is also vacated. For 5 the reasons stated below, the Motion is GRANTED.1 6 II. BACKGROUND 7 Rupan’s claims are those alleged in the FAC, which were alleged by all plaintiffs against 8 all defendants, except as noted: (1) “First Amendment Violation” pursuant to 42 U.S.C. § 1983; 9 (2) “Fourth Amendment Excessive Force and Unlawful Seizure” pursuant to 42 U.S.C. § 1983; (3) 10 “Fourteenth Amendment Substantive Due Process” pursuant to 42 U.S.C. § 1983; (4) “Monell and 11 Supervisory Liability” pursuant to 42 U.S.C. § 1983 against the City and Chief Manheimer only; 12 (5) “Assault and Battery”; (6) “Bane Act”; (7) “False Arrest and False Imprisonment”; and (8) 13 “Negligence”. 14 In the FAC, Rupan alleges the following specific facts in support of his claims: 15 On the evening of May 29, 2020, plaintiff Ashwin James Rupan was near Webster Street between 30th Street and Hawthorn Street with a 16 crowd of demonstrators. Police kettled the group and shot teargas and flashbang grenades into the crowd, which caused a stampede. The 17 area was covered in smoke. He ran with the crowd, was pushed, and fell into a deep ditch of about ten feet. He was stuck in the ditch and 18 could not walk. No-one could find him. He suffered a broken ankle. 19 FAC ¶ 104. In the government claim submitted pursuant to Cal. Gov. Code section 905 et seq. 20 Rupan’s allegations were similar except that he claimed that he “jumped over a hedge and fell 21 approximately 10 feet to the ground and suffered a broken ankle.” McLauglin Decl., Ex. C 22 (Government Claim) at p. 6 (emphasis added). 23 At his deposition, Rupan testified that he was pushed into a bush by the “crowd pushing” 24 but that he did not “feel like anybody specific[ally] grabbed [him] and pushed [him].” 25 McLaughlin Decl., Ex. A (Rupan Depo.) at 161, 169. But he also testified that “somebody tried 26 to, like, threw me over.” Id. at 148. At another point, he testified that he didn’t know how he fell, 27 1 stating, “I rolled over. I don’t know how that happened or who pushed me.” Id. at 150. Rupan 2 testified that there was smoke and teargas, but that he was not at “the core of it” and was not 3 affected by it. Id. at 227. 4 Defendants have offered evidence in support of their Motion that on the night in question, 5 officers encircled and detained a group of individuals who they believed had been engaged in 6 looting, with one group of officers coming down Webster Street from Hawthorn and another 7 coming up Webster from 30th Street. See generally, Gerrans Decl; Tedesco Decl. This incident 8 matches Rupan’s deposition testimony with respect to his location and time when he was injured. 9 See McLaughlin Decl., Ex. A (Rupan Depo.) at 135-140. Officer Tedesco states that as the 10 officers came up Webster, “numerous members of the group attempted to jump through a row of 11 bushes and a railing on the east side of Webster onto the roof of an adjacent building. Tedesco 12 Decl. ¶ 5. Similarly, Officer Gerrans reported that “some members of the group tried to jump over 13 a ledge or onto the rooftop of the building next to this potion of Webster Street. Gerrans Decl. ¶ 4. 14 Gerrans states that “[o]fficers did not force the crowd up against the pushes and railing on the east 15 side of Webster – in fact officers . . . directed members of the crowd to move away from the 16 bushes and railing on that side of the street. The crowd was not tightly packed against the bushes 17 or the railing.” Id. ¶ 5. Officer Gerrans states further that there “were no clouds of tear gas and 18 [he] did not have any need to wear a gas mask.” Id. ¶ 6. 19 Officer Gerrans’s body worn camera footage confirms these statements. Gerrans Decl., 20 Ex. A. The footage captures the approach of the officers and the reaction of the individuals to the 21 officers they encountered, reflecting that the crowd was not large or tightly-packed, most of the 22 individuals lay on the ground in response to police commands, and that while a few people 23 attempted to flee by jumping through the bushes, the officers were not forcing the crowd in the 24 direction of the bushes. Id. There is no indication that any of the detained individuals were 25 reacting to tear gas and no clouds of tear gas can be seen. 26 III. ANALYSIS 27 A. Legal Standards Under Rule 56 1 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 2 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 3 the absence of a genuine issue of material fact with respect to an essential element of the non- 4 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 5 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 6 Once the movant has made this showing, the burden then shifts to the party opposing 7 summary judgment to designate “‘specific facts showing there is a genuine issue for trial.’” Id. 8 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely 9 disputed must support the assertion by . . . citing to particular parts of materials in the record 10 . . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the 11 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. 12 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of 13 identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan 14 v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the 15 record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 16 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3). 17 On summary judgment, the court draws all reasonable factual inferences in favor of the 18 non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not 19 find for the non-moving party based on the record as a whole, there is no “genuine issue for trial” 20 and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 21 587 (1986). 22 B. Legal Standards Under 42 U.S.C. § 1983 23 Section 1983 provides “a method for vindicating federal rights elsewhere conferred.” 24 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citation omitted). Thus, analysis of a civil rights 25 claim brought under § 1983 begins with the identification of the specific constitutional right 26 allegedly infringed. Id. at 394. The claim is then evaluated under the constitutional standards that 27 apply to that constitutional right. Id. (citing Tennessee v. Garner, 471 U.S. 1, 7–22 (1985)). 1 color of state law and (2) a constitutional deprivation was caused by an official policy or custom 2 of the city. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying Monell v. 3 Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978)). 4 C. Claims Against Gonzales, D’Orso and Fought 5 Rupan has not alleged any specific conduct on the part of these defendants that relates to 6 him. Nor has he pointed to any evidence in the record suggesting that any of these defendants had 7 any interactions with Rupan or engaged in any conduct that would support Rupan’s claims against 8 them. Accordingly, the Court finds that all of Rupan’s claims against these defendants fail as a 9 matter of law. 10 D. Claims Against Manheimer 11 Rupan alleges that Manheimer failed to train, supervise, or discipline other officers, but he 12 provides no evidence that Manheimer did anything causally connected to any violation of his 13 rights. Further, Rupan does not contend that Manheimer herself violated his rights under the First, 14 Fourth, or Fourteenth Amendments, or that Manheimer was involved in any assault and battery, 15 false arrest or imprisonment, or negligence that had any connection to his injuries; nor has pointed 16 to any evidence of conduct by Manheimer that might establish such a violation. Therefore, Rupan 17 has not established that a material issue of fact exists as to his claims against Manheimer, which 18 are dismissed. 19 E. Claims Against the City of Oakland 20 Rupan does not identify any City employee who violated his rights, falsely arrested or 21 imprisoned him, assaulted or battered him, or negligently injured him. Absent any such evidence, 22 Rupan has no viable claim against the City, whether a Monell claim or state law claim. His claims 23 all fail for this reason. His claims fail for numerous other reasons as well, including a basic lack of 24 evidence that he was falsely arrested or imprisoned, that he was assaulted or battered, or that any 25 person’s negligence harmed him. Further, with respect to the Monell claim, there is no evidence 26 of an unconstitutional policy or practice, or that such a policy or practice was the moving force in 27 a constitutional violation as to Rupan. Therefore, Rupan’s claims against the City are dismissed. 1 || IV. CONCLUSION 2 For the reasons stated above, the Court GRANTS the Motion and dismisses Rupan’s 3 || claims in this case with prejudice. The Clerk is instructed to close the case and enter judgment in 4 || favor of Defendants as to the claims of Ashwin Rupan. 5 IT IS SO ORDERED. 6 7 Dated: October 24, 2023 3 €

J PH C. SPERO

9 nited States Magistrate Judge 10 11 a 12

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