Strong v. City of Vallejo ( 2020 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ----oo0oo---- 12 13 ROBERT STRONG, No. 2:18-cv-01246 WBS AC 14 Plaintiff, 15 v. ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT 16 CITY OF VALLEJO, JARRETT TONN, ANDREW BIDOU, and DOE VALLEJO 17 POLICE OFFICERS 1-25, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Robert Strong filed this action against 22 defendants City of Vallejo, Jarrett Tonn, Andrew Bidou, and Doe 23 police officers 1 through 25, alleging violations of federal and 24 state law arising from defendant Tonn’s arrest of plaintiff. The 25 Complaint contains claims for: (1) excessive force in violation 26 of the Fourth Amendment, 42 U.S.C. § 1983; (2) false arrest in 27 violation of the Fourth Amendment, 42 U.S.C. § 1983 (3) 28 negligence; (4) battery; (5) intentional infliction of emotional 1 distress; (6) false imprisonment; and (7) violation of the Tom 2 Bane Civil Rights Act, Cal. Civ. Code § 52.1. The Complaint also 3 asserted Monell1 claims against the City of Vallejo under Claims 4 One and Two. Before the court are the parties’ cross-motions for 5 summary judgment. (Docket Nos. 14 & 15.) 6 In his first opposition to defendants’ motion for 7 summary judgment, plaintiff dismissed his false arrest claim 8 (Claim Two). (Pl.’s Initial Opp’n at 10 (Docket No. 20).) 9 Because plaintiff initially failed to respond to defendants’ 10 motion to dismiss the state law claims (Claims Three through 11 Seven), the court requested supplemental briefing to clarify 12 plaintiff’s position with respect to those claims. (Docket No. 13 29.) In his supplemental opposition, plaintiff pursues only 14 “three state law claims”: claims for negligence (Claim Three), 15 battery (Claim Four), and violation of the Tom Bane Act (Claim 16 Seven). (Pl.’s Supp. Opp’n at 2 (Docket No. 32).) The court 17 will therefore grant defendants’ motion for summary judgment as 18 to Claims Two, Five, and Six. 19 Further, although the court expressly asked plaintiff 20 to clarify his position as to his Monell claim under Claim Two, 21 plaintiff chose not to do so. (See Order (Docket No. 29); Pl.’s 22 Supp. Opp’n.) Given the two opportunities to respond and the 23 court’s specific request, plaintiff’s silence will be construed 24 as a concession to defendants’ motion on that claim. (See Defs.’ 25 Mot. Summ. J. at 14-15 (Docket No. 14); see generally Pl.’s 26 Initial Opp’n; Pl.’s Supp. Opp’n; see also Pl.’s Reply (Docket 27 1 Monell v. Department of Social Services, 436 U.S. 658 28 1 No. 23).) 2 Accordingly, the remaining claims at issue are 3 plaintiff’s federal claim for excessive force under 42 U.S.C. § 4 1983 (Claim One), and his state law claims for negligence (Claim 5 Three), battery (Claim Four), and violation of the Tom Bane Act 6 (Claim Seven). 7 There are genuine disputes of material fact here that 8 preclude summary judgment on plaintiff’s claim for excessive 9 force. The parties strongly disagree as to whether Tonn used a 10 carotid hold or a control hold to arrest plaintiff and neither 11 video recording resolves that dispute. Thus, because there is a 12 genuine issue of fact as to whether the hold Tonn employed was 13 one that constitutes deadly force, the court cannot conclude as a 14 matter of law whether that force employed was reasonable. 15 Summary judgment is therefore inappropriate for either side on 16 Claim One. 17 Defendants contend that Tonn is entitled to qualified 18 immunity. “Qualified immunity protects government officers ‘from 19 liability for civil damages insofar as their conduct does not 20 violate clearly established statutory or constitutional rights of 21 which a reasonable person would have known.’” Maxwell v. Cty. of 22 San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013). A defendant is 23 entitled to qualified immunity if either (1) plaintiff has not 24 “alleged” or “shown” facts that would make out a constitutional 25 violation or (2) the constitutional right allegedly violated was 26 not “‘clearly established’ at the time of defendant’s alleged 27 misconduct.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453–54 28 (9th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232, 1 236 (2009)). 2 For the same reason that the court cannot grant summary 3 judgment on the merits of Claim One, given the facts in dispute, 4 the court cannot conclude as a matter of law that Tonn did not 5 violate plaintiff’s Fourth Amendment rights or that the 6 constitutional right to be free from the force used was not 7 clearly established. 8 Further, the parties agree that plaintiff’s claims for 9 negligence (Claim Three) and battery (Claim Four) also turn on 10 whether the force applied was reasonable. (See Pl.’s Supp. Opp’n 11 at 1; Defs.’ Supp. Reply at 4, 6 (Docket No. 33).) The dispute 12 as to the hold employed during plaintiff’s arrest therefore also 13 precludes summary judgment as to those claims. The court 14 therefore will deny summary judgment on Claims Three and Four. 15 Finally, the parties disagree as to the elements of a 16 Tom Bane Act claim. Plaintiff contends that the elements of the 17 excessive force claim under Section 52.1 are the same as under 18 Section 1983. (Pl.’s Supp. Opp’n at 1; see Chaudhry v. City of 19 Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014)). Defendants, 20 on the other hand, rely on Reese v. County of Sacramento, 888 21 F.3d 1030, 1043 (9th Cir. 2018), for the proposition that, in 22 addition to proving a constitutional violation, plaintiff must 23 prove that Tonn had the “specific intent” to violate plaintiff’s 24 rights. (Defs.’ Mot. Summ J. at 17-18.) 25 The court agrees with defendants. The Ninth Circuit in 26 Reese explicitly held that specific intent to violate the 27 plaintiff’s rights is a requirement of a Tom Bane Act claim. 888 28 F.3d at 1043 (“[T]he Bane Act requires . . . a specific intent to 1 violate the arrestee’s right to freedom from unreasonable 2 seizure.”). Moreover, the Reese court clarified that, although 3 the Ninth Circuit had previously found that only a constitutional 4 violation was needed to succeed on a Tom Bane Act claim, those 5 cases “did not address whether the [] Act required some showing 6 of intent in addition to showing the constitutional violation.” 7 Id. at 1044 (citing Chaudhry, 751 F.3d at 1105; Cameron v. Craig, 8 713 F. 3d 1012, 1022 (9th Cir. 2013)). 9 Thus, to succeed on this claim, plaintiff must show (1) 10 that defendant Tonn violated his constitutional rights using 11 excessive force, and (2) that Tonn had a specific intent to 12 violate those rights. See Villanueva v. California, No. 8:17-CV- 13 01302 JLS KES, 2019 WL 1581392, at *15 (C.D. Cal. Jan. 31, 2019). 14 However, the law does not require that intent be proven by direct 15 evidence; intent, like other states of mind, must typically be 16 inferred from evidence of what the defendant did, the surrounding 17 circumstances, and all the other evidence in the case. Here, if 18 plaintiff’s version of the facts is accepted, a reasonable jury 19 could find from the nature and degree of the force used that 20 defendant Tonn acted with the intent to violate plaintiff’s right 21 to be free from unreasonable force. The court will therefore 22 deny summary judgment to either side on Claim Seven. 23 IT IS THEREFORE ORDERED, that defendants’ motion for 24 summary judgment be, and the same hereby is, GRANTED with respect 25 to Claim One as against the City of Vallejo and Claims Two, Five, 26 and Six of the Complaint as against all defendants. 27 IT IS FURTHER ORDERED, that plaintiff and defendants’ 28 motions for summary judgment be, and the same hereby are, DENIED WAU 2.40 UV VLEET VE DDN MMU Or POI feeiey VM VIN 1 | with respect to Claim One as against defendant Tonn and Claims 2 Three, Four, and Seven. 3 | Dated: July 22, 2020 _aitthom th. ib. be— WILLIAM B. SHUBB 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28