(PC) Wesson v. Linde ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VONTELL WESSON, No. 2:19-cv-1880 KJM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 BURT A. LINDE, 15 Defendant. 16 17 Plaintiff is a federal prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendant used excessive force against him during his 2019 19 arrest. Presently before the court is defendant’s fully briefed motion for summary judgment. For 20 the reasons set forth below the court will recommend that defendant’s motion be denied. 21 BACKGROUND 22 I. Relevant Procedural History 23 This action proceeds on plaintiff’s original complaint. (ECF No. 1.) By order dated 24 December 19, 2019, the undersigned screened the complaint and determined it stated a cognizable 25 excessive force claim against defendant. (ECF No. 9.) However, the complaint failed to state 26 any additional claims. Plaintiff was given the option to amend the complaint or proceed 27 immediately on his cognizable claim. 28 //// 1 Plaintiff elected to proceed with his excessive force claim. (ECF No. 13.) Following 2 service of the complaint on defendant, this action was referred to the court’s post-screening ADR 3 (Alternative Dispute Resolution) Project. (ECF No. 21.) Thereafter, defendant filed a motion to 4 opt out of participation in the settlement conference. (ECF No. 24.) The motion was granted, and 5 the parties engaged in discovery. 6 On January 19, 2021 defendant filed the instant summary judgment motion. (ECF No. 7 32.) Plaintiff filed an opposition (ECF No. 36) and defendant filed a reply (ECF No. 35). 8 II. Allegations in the Complaint 9 Plaintiff is currently a federal inmate housed at Federal Correctional Institute Victorville. 10 He complains of conduct that occurred when he was arrested on February 25, 2019 by defendant, 11 Officer Burt A. Linde of the Stockton Police Department. (ECF No. 1 at 3.) 12 Plaintiff told defendant that the handcuffs were causing pain because they were too tight. 13 Plaintiff claims defendant ignored plaintiff’s statement. “After a long time, defendant attempted 14 to loosen” the handcuffs “which took a few minutes.” (Id.) Plaintiff contends defendant’s actions 15 caused him to suffer a broken wrist and permanent nerve damage. 16 MOTION FOR SUMMARY JUDGMENT 17 Defendant argues that the undisputed evidence, including body camera footage, shows 18 that his conduct was reasonable and that he did not use excessive force against plaintiff. (ECF 19 No. 32-3.) 20 Plaintiff’s opposition contains approximately three pages of argument and a one-page 21 declaration. (ECF No. 36.) Therein, plaintiff argues there are disputed facts precluding summary 22 judgment. Specifically, plaintiff disputes defendant’s allegation that he did not react when 23 defendant tightened the handcuffs. Plaintiff claims he “screamed at the infliction of this pain.” 24 (Id. at 3.) 25 Plaintiff further alleges defendant used excessive force “by tightening, not merely 26 ‘adjusting’ the handcuffs, which caused [him] to scream and complain.” (ECF No. 36 at 2.) 27 Plaintiff acknowledges that at the time of his arrest he was “under the influence of 28 //// 1 methamphetamine and did not feel the full effects of [his] injury, until the following day when 2 medical staff determined that [he] had a broken wrist.” (Id.) 3 In the reply, defendant argues plaintiff’s opposition is untimely,1 fails to show any 4 disputed material facts, the undisputed facts along with applicable law show defendant acted 5 reasonably, and he is entitled to qualified immunity. (ECF No. 35.) 6 I. Legal Standards 7 A. Summary Judgement Under Rule 56 8 Summary judgment is appropriate when the moving party “shows that there is no genuine 9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 10 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party bears the burden of 11 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 12 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 13 party may accomplish this by “citing to particular parts of materials in the record, including 14 depositions, documents, electronically stored information, affidavits or declarations, stipulations 15 (including those made for purposes of the motion only), admissions, interrogatory answers, or 16 other materials” or by showing that such materials “do not establish the absence or presence of a 17 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 18 Fed. R. Civ. P. 56(c)(1). 19 “Where the non-moving party bears the burden of proof at trial, the moving party need 20 only prove there is an absence of evidence to support the non-moving party’s case.” Oracle 21 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 22 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 23 motion, against a party who fails to make a showing sufficient to establish the existence of an 24 element essential to that party’s case, and on which that party will bear the burden of proof at 25 26 1 The court declines to strike plaintiff’s opposition as untimely. “[C]ourts must provide considerable leeway when assessing whether a pro se civil rights litigants’ failure to comply 27 strictly with time limits . . . should be excused for ‘good cause,’ especially when that litigant is incarcerated. McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992) (emphasis in original), 28 overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). 1 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 2 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 3 a circumstance, summary judgment should “be granted so long as whatever is before the district 4 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 5 56(c), is satisfied.” Id. 6 If the moving party meets its initial responsibility, the burden shifts to the opposing party 7 to establish that a genuine issue as to any material fact actually exists. Matsushita Elec. Indus. 8 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence 9 of this factual dispute, the opposing party may not rely upon the allegations or denials of its 10 pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 11 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 12 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 13 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 14 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 15 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 16 reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248. 17 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 18 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 19 v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (citation 20 omitted). It is the opposing party’s obligation to produce a factual predicate from which the 21 inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 22 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 23 show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 24 (citations omitted). “Where the record is taken as a whole could not lead a rational trier of fact to 25 find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l 26 Bank, 391 U.S. at 289). 27 On a motion for summary judgment, it is inappropriate for the court to weigh evidence or 28 resolve competing inferences. “In ruling on a motion for summary judgment, the court must 1 leave ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate 2 inferences from the facts’ to the jury.” Foster v. Metropolitan Life Ins. Co., 243 Fed.Appx. 208, 3 210 (9th Cir. 2007) (quoting Anderson, 477 U.S. at 255). 4 Generally, when a defendant moves for summary judgment on an affirmative defense on 5 which he bears the burden of proof at trial, he must come forward with evidence which would 6 entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. 7 South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an 8 affirmative defense that must be raised in a motion for summary judgment rather than a motion to 9 dismiss. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for 10 summary judgment for non-exhaustion, the defendant has the initial burden to prove “that there 11 was an available administrative remedy, and that the prisoner did not exhaust that available 12 remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the prisoner to 13 come forward with evidence showing that there is something in his particular case that made the 14 existing and generally available administrative remedies effectively unavailable to him.” Id. The 15 ultimate burden of proof remains with the defendant, however. Id. If material facts are disputed, 16 summary judgment should be denied, and the “judge rather than a jury should determine the 17 facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury 18 decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170-71. 19 B. Excessive Force 20 The Fourth Amendment protects individuals from the use of excessive force by law 21 enforcement officials “in the course of an arrest, investigatory stop, or other ‘seizure’ of a free 22 citizen[.]” Graham v. Connor, 490 U.S. 386, 395 (1989). Excessive force claims “are analyzed 23 under the objective reasonableness standard of the Fourth Amendment.” Blanford v. Sacramento 24 County, 406 F.3d 1110, 1115 (9th Cir. 2005). Under this standard the court is required to 25 “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests 26 against the importance of the governmental interests alleged to justify the intrusion.” Tennessee 27 v. Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). 28 //// 1 The court pays “careful attention to the facts and circumstances of each particular case, 2 including (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat 3 to the safety of the officers or others, and (3) whether [the suspect] is actively resisting arrest or 4 attempting to evade arrest by flight.” Graham, 490 U.S. at 396; see also Brooks v. Clark County, 5 828 F.3d 910, 920 (9th Cir. 2016). The most important of these three factors is whether the 6 suspect poses an immediate threat to the officers or others. Mattos v. Agarano, 661 F.3d 433, 441 7 (9th Cir. 2011) (en banc). 8 “The ‘reasonableness’ of a particular use of force must be judged from the perspective of 9 a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 10 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)); see id. at 396-97 (“‘Not every push 11 or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ . . . violates 12 the Fourth Amendment.”) (citations omitted). Further, “[t]he calculus of reasonableness must 13 embody allowance for the fact that police officers are often forced to make split-second 14 judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of 15 force that is necessary in a particular situation.” Id. at 396-97. 16 “Because this inquiry is inherently fact specific, the ‘determination whether the force used 17 to effect an arrest was reasonable under the Fourth Amendment should only be taken from the 18 jury in rare cases.’” Green v. City and Cnty. Of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 19 2014) (quoting Headwaters Forest Def. v. Cty. Of Humboldt, 240 F.3d 1185, 1205-06 (9th Cir. 20 2000)). “Because the excessive force inquiry nearly always requires a jury to sift through 21 disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on 22 many occasions that summary judgment or judgement as a matter of law in excessive force cases 23 should be granted sparingly.” Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) 24 (citations omitted). 25 “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or 26 investigatory stop necessarily carries with it the right to use some degree of physical coercion or 27 threat thereof to effect it.” Graham, 490 U.S. at 396. “The use of handcuffs during an arrest is 28 quite common and often a ‘standard practice’” and, “[o]rdinarily the use of handcuffs during an 1 arrest is a very low quantum of force that will not constitute excessive force.” McFarland v. City 2 of Clovis, No. 1:15-cv-1530 AWI SMS, 2017 WL 1348934, at *13 (E.D. Cal. Apr. 10, 2017) 3 (citing Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)). However, the manner in which an 4 individual is handcuffed may, under some circumstances, amount to excessive force. See Wall v. 5 County of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (“It is well-established that overly tight 6 handcuffing can constitute excessive force.”); Nyla Moujaes v. San Francisco City & Cnty., No. 7 15-cv3129 DMR, 2016 WL 4702671, at *7 (N.D. Cal. Sept. 8, 2016) (“[A]n officer may be liable 8 for excessive force if he or she handcuffs a suspect in a tight or painful manner and ignores 9 complaints of pain.”). 10 Unreasonably injuring a person’s wrists while applying handcuffs constitutes excessive 11 force. See Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989). The Ninth Circuit has indicated 12 that an excessive force case based on a claim of tight handcuffing is not properly resolved on a 13 motion for summary judgment because “[t]he issue of tight handcuffing is usually fact-specific 14 and is likely to turn on the credibility of the witnesses.” LaLonde v. Cnty. of Riverside, 204 F.3d 15 947, 960 (9th Cir. 2000). 16 II. Material Facts 17 Defendant filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule 18 260(a). (ECF No. 32-2.) Plaintiff’s filing in opposition to defendant’s motion for summary 19 judgment fails to comply with Local Rule 260(b). (ECF No. 36.) Rule 260(b) requires that a 20 party opposing a motion for summary judgment “reproduce the itemized facts in the Statement of 21 Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, 22 including with each denial a citation to the particular portions of any pleading, affidavit, 23 deposition, interrogatory answer, admission, or other document relied upon in support of that 24 denial.” 25 The court is mindful of the Ninth Circuit’s instruction that district courts are to “construe 26 liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary 27 judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, 28 the court considers the record before it in its entirety despite plaintiff’s failure to be in strict 1 compliance with the applicable rules. However, only those assertions in the opposition that have 2 evidentiary support in the record will be considered. In light of plaintiff’s pro se status, the court 3 has reviewed plaintiff’s filings in an effort to discern whether he denies any material fact asserted 4 in the defendant’s DSUF. 5 A. Undisputed Facts 6 The events giving rise to the claim occurred on February 25, 2019. (DSUF (ECF No. 32- 7 2) at ¶ 1; Pl’s compl. (ECF No. 1) at 3.) Defendant and his partner were dispatched following a 8 report indicating “two black males [were] walking around the apartment complex” and that “one 9 of them [was] armed with a gun.” (DSUF (ECF No. 32-2) at ¶ 1.) After exiting his vehicle, 10 defendant activated his department issued body worn camera. (Id. at ¶ 2.) As defendant “entered 11 the apartment complex and observed two black males running towards him, with other Stockton 12 Police officers running behind the two black males ordering them to stop.” (Id. at ¶ 3.) 13 Defendant directed the men to stop. (Id. at ¶ 4.) The two men stopped and put their hands 14 up. (Id.) Defendant detained one of the subjects, later learned to be plaintiff, and placed him in 15 handcuffs at approximately 5:00:51 hours. Thereafter, defendant began questioning plaintiff. (Id. 16 at ¶ 6.) 17 At approximately 5:04:08, plaintiff asked defendant to undo his handcuffs. (Id. at ¶ 7.) 18 Defendant adjusted plaintiff’s handcuffs. (Id. at ¶ 8.) Defendant continued questioning plaintiff 19 before he was placed in the back of defendant’s patrol car and taken to the Stockton Police 20 department for booking. (Id. at ¶ 9.) Defendant and his partner transported plaintiff to the 21 Stockton Police Department around 5:43:30. (Id. at ¶ 10.) During the drive plaintiff and 22 defendant discussed among other things, plaintiff’s outstanding warrant. 23 B. Disputed Facts 24 Plaintiff disputes defendant’s statement that he loosened the handcuffs. Rather, plaintiff 25 alleges defendant tightened them after plaintiff informed him that they were causing him pain. 26 (ECF No. 36 at 1, 3.) Plaintiff maintains that when he asked defendant to loosen his handcuffs, 27 defendant tightened them breaking plaintiff’s wrist. (Id. at 4.) He further states that when this 28 happened, he did not remain silent as defendant claims, but rather, he screamed in pain. (Id.) 1 Plaintiff also alleges that he complained about the tightness after defendant adjusted the 2 handcuffs. 3 Plaintiff argues that he “did not feel the full effects of [his] injury until the following day 4 when medical staff determined that he had suffered a broken wrist” because he was under the 5 influence of methamphetamine at the time of his arrest. (ECF No. 36 at 2.) 6 III. Analysis 7 Defendant argues that the video evidence shows that defendant acted reasonably 8 throughout the arrest, he adjusted plaintiff’s handcuffs when plaintiff complained they were too 9 tight, and that plaintiff did appear to be in any discomfort thereafter. (ECF No. 32-3 at 5-8.) 10 Plaintiff, however, argues that he yelled in pain when defendant adjusted the handcuffs and did 11 not feel the full effects of his injuries because he was under the influence of methamphetamine at 12 the time of arrest. (ECF No. 36.) Defendants claim plaintiff’s version of events is contradicted 13 by the body camera footage defendants have provided as evidence. (ECF No. 35 at 3.) 14 “When opposing parties tell two different stores, one of which is blatantly contradicted by 15 the record, so that no reasonable jury could believe it, a court should not adopt that version of the 16 facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 17 380 (2007); see also Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (“The 18 record is viewed in the light most favorable to the nonmovants . . . so long as their version of the 19 facts is not blatantly contradicted by the video evidence.”). However, “[t]he mere existence of 20 video footage of the incident does not foreclose a genuine factual dispute as to the reasonable 21 inferences that can be drawn from that footage.” Vos, 892 F.3d at 1028. 22 The undersigned has viewed the video evidence provided by defendants (ECF No. 32-7) 23 and finds that it cannot be said to blatantly contradict plaintiff’s version of the facts. Rather, the 24 video is largely consistent with the parties’ basic recounting of the events and only conclusively 25 establishes that plaintiff complained about the tightness of the handcuffs and yelled when 26 defendant adjusted them. 27 Based on the parties’ accounts of the arrest, and the video footage provided, the court 28 cannot find that the only reasonable conclusion the evidence permits is that the force used was 1 appropriate. LaLonde, 204 F.3d at 960 (citing Lawson v. Umatilla Cnty., 139 F.3d 690, 692 (9th 2 Cir. 1998)). Although one could certainly view the video evidence as supporting one parties’ 3 version of events, the video does not blatantly contradict either parties’ version. Particularly 4 because the video evidence does not clearly depict the entirety of the use of force at issue. The 5 incident occurred when it was dark outside, both plaintiff and defendant were wearing dark 6 clothing, and the camera is not always focused on the parties’ interaction. 7 Thus, whether defendant’s actions in handcuffing and later adjusting the handcuffs were 8 reasonable is a disputed factual issue that should preclude summary judgment. See Smith v. City 9 of Hemet, 394 F.3d 689, 700-01 (9th Cir. 2005) (“Because the excessive force inquiry nearly 10 always requires a jury to sift through disputed factual contentions, and to draw inferences 11 therefrom, . . . summary judgment . . . in excessive force cases should be granted sparingly.”) A 12 reasonable jury could credit plaintiff’s account that defendant used excessive force in applying 13 and/or adjusting the handcuffs. Accordingly, the court will recommend that summary judgment 14 be denied. See Glenn v. Washington Cnty., 673 F.3d 864, 878 (9th Cir. 2011) (“We recognize 15 that the officers have offered evidence that could support a verdict in their favor. A jury could 16 view the facts as the district court did, and likewise reach the conclusion that the officers’ use of 17 force was reasonable. But on summary judgment, the district court is not permitted to act as a 18 factfinder. The circumstances of this case can be viewed in various ways, and a jury should have 19 the opportunity to assess the reasonableness of the force used after hearing all the evidence.”). 20 Because defendant has not met his burden of demonstrating the absence of a genuine issue 21 of material fact with respect to the issue of the removal of the handcuffs, summary judgment 22 based on qualified immunity is inappropriate. See Adickes v. Kress & Co., 398 U.S. 144, 157 23 (1970); see also Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (if there is a 24 genuine dispute as to the “facts and circumstances within an officer’s knowledge,” or “what the 25 officer and claimant did or failed to do,” summary judgment is not appropriate). Accordingly, 26 summary judgment based on defendant’s argument that he is entitled to qualified immunity 27 should not be granted. 28 //// 1 CONCLUSION 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant’s motion 3 | for summary judgment (ECF No. 32) be denied. 4 These findings and recommendations are submitted to the United States District Judge 5 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court and serve a copy on all parties. Such a document should be captioned 8 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 | objections shall be served and filed within fourteen days after service of the objections. The 10 || parties are advised that failure to file objections within the specified time may waive the right to 11 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: August 20, 2021 13 14 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 DB:12 24 || DB/DB Prisoner Inbox/Civil Rights/SAvess1880.mjs fr 25 26 27 28 11