Opinion
Lilton Dooley, an individual, Plaintiff, Pro se, Stockton, CA.
For City of Long Beach, Long Beach Police Department, Defendants: Monte H Machit, Long Beach City Attorney's Office, Long Beach, CA; Theodore B Zinger, City Attorney's Office of Long Beach, Long Beach, CA.
For Officer Keith Mortensen, Officer, Defendant: Theodore B Zinger, City Attorney's Office of Long Beach, Long Beach, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RALPH ZAREFSKY, UNITED STATES MAGISTRATE JUDGE.
Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Report and Recommendation to the Honorable John F. Walter, United States District Judge. The pro se, incarcerated plaintiff, Lilton Dooley, alleges that a " Doe officer" of the Long Beach Police Department (LBPD), now identified as Keith Mortensen, used excessive force against him while transporting him to jail. Defendants have moved for summary judgment. Plaintiff has failed to submit a proper opposition citing evidence of a material factual dispute, even though the Court gave him numerous extensions and detailed instructions. As further explained below, the Court should grant Defendants' motion and dismiss the action (1) with prejudice as to the moving defendants, Mortensen and the City of Long Beach, and (2) without prejudice as to the never-appearing Doe defendants.
I .
BACKGROUND: PARTIES, ALLEGATIONS AND CLAIMS
A. Parties
Plaintiff Lilton Dooley is a state inmate. Now pro se, he was represented by counsel from the June 2013 outset of this action through February 2014. He sues the City of Long Beach (the City) and ten Doe police officers for an alleged beating at the hands of one Doe officer. One officer has been identified as Keith Mortensen. No defendants other than the City and Mortensen have appeared.
B. Summary Of Allegations
The following summary largely assumes the truth of Plaintiff's allegations solely for the purpose of briefly framing the current motion. Of course, Defendants' current motion tests those very allegations.
On May 7, 2012, Officer Mortensen was driving an LBPD car transferring Plaintiff to the Los Angeles County jail. Plaintiff sat in the rear of the car, handcuffed with his hands behind his back. After driving some distance northbound on the 710 freeway, Mortensen pulled over to the shoulder. (Unmentioned in the complaint, but undisputed as noted below, is that Plaintiff had just kicked out the rear passenger window of the patrol car in an escape attempt -- just as he had sought to do on the prior day, as Mortensen knew.) Mortensen removed Plaintiff from the car with Plaintiff's hands still handcuffed behind his back. Mortensen and Doe LBPD officers kicked and punched Plaintiff, injuring him, and yelling such racial slurs as " nigger" and " monkey." (Plaintiff is black.) See Comp. ¶ ¶ 6-11.
C. Claims
Plaintiff enumerates the following claims against the following defendants. Some claims contain an uncertain array of subclaims and overlap with other claims:
1. " Federal civil rights" violation(s) pursuant to 42 U.S.C. § 1983 by Mortensen and the never-appearing Does. This is a poorly pleaded claim, even though it was drafted by counsel. The only clearly-asserted basis for this claim is excessive force against an arrestee in violation of the Fourth Amendment, see Comp. ¶ 18, but it is unclear whether Plaintiff intends improper, additional bases. Claim 1 incorporates earlier allegations referring to racially discriminatory statements, see Comp. ¶ ¶ 4(d) (citing Equal Protection Clause), 10 (racial slurs during beating), 14 (incorporating into Claim 1). Claim 1 includes other terms of art suggesting additional bases for the claim, such as " unlawful search and seizure, cruel and unusual punishment and violation of due process, " Comp. ¶ 21; and the allegation that the Doe officers were " deliberately indifferent to his physical security, " Comp. ¶ 23. The Court interprets this claim as asserting only a Fourth-Amendment-based claim of excessive force against an arrestee. 2. Racial harassment in violation of Cal. Civil Code § § 51.7 and 52 (the Ralph Civil Rights Act) by Mortensen and the never-appearing Does. 3. Attempted racist interference with civil rights in violation of Cal. Civil Code § 52.1 (the Bane Civil Rights Act) by Mortensen and the never-appearing Does. 4. Assault by all Defendants. 5. Battery by all Defendants. 6. Negligence by all Defendants.
II .
SUMMARY JUDGMENT
A. General Standard Of Review And The Parties' Shifting Burdens
" The 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 matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of showing there is no genuine issue for trial, before the nonmoving party must introduce evidence. But the moving party is not initially required to introduce evidence negating an element on which the non-moving party will bear the burden of proof at trial (although the moving party may, and often does, do so). Rather, the moving party need only point out to the Court that, on at least one such element, no evidence supports the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994).
Once the moving party meets its initial burden, the nonmoving party may not rest upon the mere allegations or denials of his pleading but rather must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment will not lie if the dispute about a material fact is " genuine" -- that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, supra, 477 U.S. at 248. A " material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. T.W. Electrical Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249-50.
B. Specific Opposition Requirements: FRCP 56 and Local Rule 56
Federal Rule 56 and this Court's Local Rules require not only (1) that a party moving for summary judgment must present a statement of allegedly uncontroverted facts (SUF), along with citations to supporting evidence, but also (2) that the party opposing summary judgment must present an answering statement of genuine issues (SGI) that either admits or controverts each of the moving party's allegedly uncontroverted facts -- with citations to contrary evidence, if a given fact is disputed. See Fed.R.Civ.P. 56(c), (e); Civ. L.R. 56. Courts are not obliged to rummage through the case files seeking evidence of a material factual dispute. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (" even if an affidavit is on file, a district court need not consider it . . . unless it is brought to the district court's attention in the opposition to summary judgment") (internal quotation marks omitted); but see Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (where plaintiff is pro se, the district court " must consider[, ] as evidence in his opposition to summary judgment[, ] all of [plaintiff's] contentions offered in motions and pleadings" if those contentions facially constitute competent evidence), followed in Rainwater v. Alarcon, 268 Fed.Appx. 531, at 534 (9th Cir. 2008) (reversing grant of summary judgment against pro se, institutionalized plaintiff who failed to submit any SGI, " as required by . . . Local Rule 56-3") (explaining that the plaintiff " did controvert Defendants' factual assertions -- albeit inartfully. Although [he] did not comply with the niceties of the district court's local rules, . . . [his] informal attempt to do so was sufficient") (emphasis added).
III .
DISCUSSION
As explained below, after Defendants met their initial burden in their moving papers, Plaintiff failed to file proper opposition documents. He did so not only in the ordinary course but also after the Court explained the shortcomings in his first attempt and granted him leave for extraordinary supplemental briefing.
A. Defendants' Satisfactory Motion Papers
Defendants assembled evidence showing the following facts, which stand sharply at odds with Plaintiff's allegations:
1. While riding on the freeway from Long Beach to downtown Los Angeles on May 8, 2012, Plaintiff began trying to move his cuffed hands from behind his back to the front of his body. The driver, Defendant Mortensen, was aware that Plaintiff had sought to escape from another police car one day earlier by kicking out a side rear window. Mortensen feared Plaintiff might be about to make another such attempt. See Defs.' Statement of Uncontroverted Facts (SUF) ¶ ¶ 3-4, 7-8, 10, 12, 16, 18. 2. Defendant Mortensen, having already called for backup, began pulling the police car towards the shoulder. As Mortensen feared, Plaintiff (1) managed to get his cuffs repositioned in front of him, (2) pivoted to lie on his back and (3) shattered the car's right rear window with a two-footed kick. Plaintiff then began to pull himself through the window head first. SUF ¶ ¶ 18, 21. This account obviously stands sharply at odds with the one in the complaint. In that version of events, Mortensen simply pulled the car to the shoulder and beat Plaintiff, who did nothing to provoke the attack and whose hands were still cuffed behind him. 3. After parking the car on the right shoulder, Mortensen got out and wrestled Plaintiff to the ground to prevent his escape. Plaintiff grabbed at Mortensen's gun, and the men struggled for control of the weapon. Mortensen struck Plaintiff in the face twice, but Plaintiff continued to try to gain control of the gun until a third strike dazed him. One helpful civilian helped to hold Plaintiff's legs while police backup arrived, and another bystander threatened to strike Plaintiff if Plaintiff struggled. SUF ¶ ¶ 22-37. 4. No one called Plaintiff a " monkey" or any other racially derogatory names during these events. See SUF ¶ ¶ 38.
Defendants have met their initial burden of showing that evidence was lacking to support any of Plaintiff's claims, as discussed further below. The burden thereupon shifted to Plaintiff to cite evidence of a material factual dispute necessitating a trial.
B. Grave Shortcomings In Plaintiff's Opposition Papers -- And The Court's Grant Of An Extraordinary Opportunity To Correct Them
Plaintiff filed an opposition, after a fashion, on June 30. It fell so far short of the foregoing requirements that the Court was forced to make a stark choice. The Court could either grant summary judgment based in part on the shortcomings, or grant the pro se, incarcerated plaintiff one final chance to brief his position properly. In an August 8 order, the Court chose the latter option. It explained as follows what the briefing shortcomings were and why Plaintiff would receive one final chance to rectify them:
The Court issues this extraordinary order for supplemental briefing for two reasons. First, Plaintiff's June 30, 2014 document in opposition to Defendants' summary judgment motion is woefully inadequate, as further discussed below. Second, however, the Court strongly prefers not to decide the motion based on the briefing defaults of a pro se litigant -- even though the Court previously issued a painstaking warning to Plaintiff about his opposition duties, including an examplar of a properly-formatted Statement of Genuine Issues. If Plaintiff fails, after this extraordinary second opportunity, to submit proper opposition documents, then the undersigned will recommend this action's dismissal.
Because Plaintiff is incarcerated and pro se, the Court promptly issued him a Notice And Warning about his duties in responding to the summary judgment motion. One such duty, as the Notice explained in detail, is the filing of a Statement of Genuine Issues (SGI) that responds to the moving parties' Statement of Undisputed Facts (SUF) -- and that responds, paragraph by numbered paragraph, to each individual part of the SUF:
The format of this [SGI] is critical to the Court's identification of which material facts, as those facts are identified in the Defendants' Statement of Uncontroverted Facts (SUF), truly are uncontroverted, and which ones instead are in dispute based on specifically cited evidence. Plaintiff's SGI organization and paragraph numbering should correspond to those used in the Defendants' SUF. An excellent example appears at 3 William A. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, California Practice Guide: Federal Civ. Proc. Before Trial (2011) Form 14:D; see generally id . ¶ ¶ 14:97 et seq . (" Procedural Requirements -- Opposing Party"). The Court attaches a copy of that example to this Notice and strongly encourages Plaintiff to employ it as a guide for formatting his SGI.
Should Plaintiff fail to submit a proper SGI supported by admissible evidence, he may lose the motion and the action as a result of that failure. See Fed.R.Civ.P. 56(e)(2); Civ L. R. 56-3.
Notice And Warning at 2-3 (emphasis in original).
Plaintiff's rambling SGI performs neither of an SGI's two key tasks. First, " Plaintiff's SGI organization and paragraph numbering" do not " correspond to those used in the Defendants' SUF." Instead, he does not number his paragraphs at all -- neither his own nor those paragraphs in the SUF with which he presumably contends. Second, Plaintiff does not cite specific portions of the evidentiary record to support the SGI. Instead, he points to a proverbial haystack of some 70 pages of exhibits and effectively asks the Court to find helpful evidentiary needles in it. (A third flaw, although it does not violate the rules per se, is that Plaintiff has utterly failed to use the " strongly encourage[d]" grid format set out in the example provided by the Court.) For example, Plaintiff begins the SGI as follows:
Facts 1 through [ sic ] below correspond to the facts and supporting evidence presented in the [SUF]. . . .
Moving party allege [ sic ] Officer Mortensen struggled with the Plaintiff outside the patrol vehicle and only struck the plaintiff 3 times in all. Supporting evidence / Sgt. Kevin Coy's official report states that he was and [ sic ] questioned why Plaintiff's blood was all over the rear seat safety panel divider. Plaintiff also submits photos in support that [ sic ] the beating took place in the back seat of the patrol vehicle and long before the vehicle made entrance onto the 710 fwy.[FN1]
FN1: This assertion -- that Plaintiff was beaten before the patrol car transporting him to jail even reached the 710 freeway -- is remarkable for a second reason. It stands entirely at odds with Plaintiff's account in his complaint. In the complaint, Plaintiff alleges that the policeman, while transporting Plaintiff from Long Beach to the county jail, pulled the patrol car off of the northbound 710 freeway and beat Plaintiff. Comp. ¶ ¶ 6-10. The complaint includes no allegation, like his current allegation, of an additional and/or earlier beating before the patrol car reached the freeway.
SGI at 1-2. As a preliminary matter, Plaintiff does not affirmatively indicate which facts in the SUF, if any, are un disputed. Plaintiff does not indicate which paragraph(s) of Defendants' SUF assert that Mortensen only struck Plaintiff three times. Perhaps that is because the SUF simply does not assert this at all.
The SUF does imply that Mortensen struck Plaintiff in the face three times. See SUF ¶ ¶ 29 (first strike " in the face area"), 30 (second strike to unspecified body part), 31 (third strike, again to unspecified target, which " dazed" Plaintiff). But the SUF does not expressly state that Mortensen did not strike Plaintiff one or more additional times. In any event, the SUF describes many other uses of force, principally of a wrestling nature, in a frenetic struggle to prevent Plaintiff from gaining control of Mortensen's gun and from escaping.
Formatting is hardly the only shortcoming in Plaintiff's opposition papers. His documents also are substantively deficient. As Defendants note in their Objections, Plaintiff supplies no evidence whatsoever to support his claims. His complaint is unverified, and his pile of opposition statements is not supported by his affidavit or declaration signed under penalty of perjury. All he has done is to argue and to point to Defendants' items of evidence.
On the one hand, were Plaintiff not pro se, these defaults in his briefing would already have doomed his case. Courts are not obliged to rummage through the case files or unorganized opposition documents in search of evidence of a material factual dispute. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (" even if an affidavit is on file, a district court need not consider it . . . unless it is brought to the district court's attention in the opposition to summary judgment") (internal quotation marks omitted). On the other hand, the Ninth Circuit has held that some Local Rules, such as this Court's SGI rule, must bend a bit for pro se litigants. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (where plaintiff is pro se, the district court " must consider[, ] as evidence in his opposition to summary judgment[, ] all of [plaintiff's] contentions offered in motions and pleadings" if those contentions facially constitute competent evidence), followed in Rainwater v. Alarcon, 268 Fed.Appx. 531, at 534 (9th Cir. 2008) (reversing grant of summary judgment against pro se, institutionalized plaintiff who failed to submit any SGI, " as required by . . . Local Rule 56-3") (explaining that the plaintiff " did controvert Defendants' factual assertions -- albeit inartfully. Although [he] did not comply with the niceties of the district court's local rules, . . . [his] informal attempt to do so was sufficient") (emphasis added). But even the latter pro se cases do not relieve Plaintiff of his obligation to supply competent evidence, not merely argument, showing that a material factual dispute exists to be tried. Nor do even Blanas and Alarcon require a district court to overlook a pro se litigant's repeated briefing failures in opposing a summary judgment motion, where the Court has repeatedly offered detailed guidance.
For the foregoing reasons, IT IS ORDERED that, within 30 days, Plaintiff shall submit supplemental and/or amended documents -- including an amended SGI and, if he wishes, a memorandum of points and authorities (which he did not submit previously) -- in keeping with the foregoing admonitions. Among other things, he must take care that:
* any statements by him that he wishes to be taken into consideration as evidence must be made under penalty of perjury, as Defendants' various declarations show; and
* his Amended SGI must address, paragraph by numbered paragraph, every item in Defendants' SUF (and if he fails to do so, then the non-addressed portions may be taken as undisputed).
If Plaintiff fails to submit timely amended and/or supplemental opposition papers, then the undersigned anticipates recommending this action's dismissal either based on that very failure and/or based on Defendants' motion for summary judgment.
Order of August 8, 2014.
C. Plaintiff's Failure To File Any Supplemental Opposition Documents -- Despite Receiving Two Extensions To Do So
Plaintiff sought and received two extensions of time to file the supplemental opposition papers. His final deadline was October 22. (He moved for a third extension of 120 days, but the Court denied that motion.) Other than motions for extensions, he has filed nothing since the Court's extraordinary-briefing order.
D. Analysis
Plaintiff shows no triable evidentiary issue as to any of his six claims.
1. Excessive force .
A jury presented with the excessive force claim would consider the following factors in evaluating Mortensen's use of force:
1. The severity of the crime or other circumstances to which Mortensen was responding; 2. Whether Plaintiff posed an immediate threat to the safety of others; 3. Whether Plaintiff was actively resisting arrest or attempting to evade arrest by flight; 4. The amount of time and any changing circumstances during which the officers had to determine the type and amount of force that appeared to be necessary; 5. The type and amount of force used; 6. The availability of alternative methods to take the plaintiff into custody. See Instruction No. 9.22, Ninth Circuit Manual of Model Jury Instructions -- Civil (2007), available at http://www3.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/Civil_Jury_Instructions_2014_6.pdf, citing, inter alia, Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The undisputed evidence on these factors favors Defendants. Plaintiff was attempting the crime of escape from lawful custody by kicking out the police car's window and seeking to flee beside a freeway full of bystanders in heavily populated south Los Angeles. When Mortensen sought to wrestle Plaintiff to the ground and thwart his escape, Plaintiff attempted to pull Mortensen's sidearm from its holster. The type and duration of force were plainly not excessive. Mortensen only used his hands to wrestle with and punch Plaintiff, and only until Plaintiff stopped his efforts to seize the gun and run away. Mortensen had no lesser options that did not entail Plaintiff's escape or seizure of the gun. A bystander's grasping of Plaintiff's legs until police backup arrived was similarly reasonable. The force used, as demonstrated by the record, was not unreasonable. This claim, the only one based on federal law, warrants summary adjudication.
If the Court accepts the foregoing recommendation and dismisses the sole federal claim, then the Court has the discretion to dismiss Plaintiff's several " orphaned" state law claims. 28 U.S.C. § 1367(c)(3). " [I]n the usual case in which all federal-law claims are eliminated before trial, " the Supreme Court has advised, " the balance of factors to be considered under the pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -- will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). But this is not " the usual case." The state law claims arise out of the same events as does the federal claim, and Plaintiff has had ample opportunity to prosecute them in the two and a half years since those events. It would be unjust to require the City and Mortensen to begin anew in state court, if Plaintiff were allowed to try. The Court thus should exercise its discretion to retain jurisdiction over the following " orphaned" state-law claims -- and, as discussed below, should reject them.
2. Racial harassment ( Cal. Civil Code § § 51.7 and 52 (the Ralph Civil Rights Act))
A jury reviewing Plaintiff's Ralph Act claim would be instructed as follows:
Plaintiff claims that Defendants subjected him to violence or threat of violence based on his race. To establish this claim, Plaintiff must prove all of the following: 1. That Defendants threatened or committed violent acts against Plaintiff; 2. That a motivating reason for Defendants' conduct was Plaintiff's race; 3. That Plaintiff was harmed; and 4. That Defendant's conduct was a substantial factor in causing Plaintiff's harm.
See Cal. Civil Jury Instructions (CACI) No. 3023 (Ralph Act). Here, Defendants have pointed out an absence of evidence to support the critical element #2, racist motive. Plaintiff pointed to no evidence in opposition. There is no factual dispute to be tried.
3. Attempted racist interference with civil rights ( Cal. Civil Code § 52.1 (the Bane Civil Rights Act))
The state's pattern jury instructions for Plaintiff's Bane Act claim would, in this case, read as follows:
Plaintiff claims that Defendants intentionally interfered with or attempted to interfere with his civil rights by threatening or committing violent acts. To establish this claim, Plaintiff must prove all of the following:
1. That Defendants interfered with or attempted to interfere with Plaintiff's right " to be free from deprivation of personal liberty, " Comp. ¶ ¶ 41-43, by threatening or committing violent acts;
2. That Defendants injured Plaintiff to prevent him from exercising right " to be free from deprivation of personal liberty" or retaliate against Plaintiff for having exercised that right;
3. That Plaintiff was harmed; and
4. That Defendants' conduct was a substantial factor in causing [name of plaintiff]'s harm.
CACI No. 3025. Providing the instruction would have been difficult, for the Act simply does not jibe with even Plaintiff's theory of the case. As these instructions illustrate, the Act provides a tort-like remedy against those who retaliate against others for exercising their rights, such as the right to vote (or who threaten such retaliation). But Plaintiff's theory is that Mortensen simply pulled the car to the road and beat Plaintiff while calling out racial slurs -- not that Mortensen was retaliating for Plaintiff's exercise of any genuine right. In any case, Plaintiff again fails to show any dispute to be tried on element #2, motive. The claim merits summary adjudication.
4 & 5. Assault and Battery
Where, as here, the defendant is a peace officer, the jury instructions given for assault and battery essentially ask the jury to assess whether the force used against the plaintiff was reasonable. The instructions are essentially the same as those noted above for a federal excessive-force claim, measuring the seriousness of the crime at issue, whether the plaintiff posed a danger to others, and whether he was actively resisting arrest. See CACI No. 1305. Thus, these claims are just as infirm as Claim 1.
6. Negligence .
It is unclear how Plaintiff contends Defendants were negligent. The pertinent part of the complaint, Comp. ¶ ¶ 70-84, simply repeats the same allegations asserted in support of the intentional- tort claims: that Mortensen pulled Plaintiff to the roadside for no valid reason, pulled him out while Plaintiff was still handcuffed behind his back, and beat him while calling him racist names. Such acts by Mortensen would be intentional, not negligent. In any event, Plaintiff points to no failure by Defendants to use reasonable care to prevent harm to him or that he was harmed as a result of any such failure. See CACI Nos. 400, 401. Defendants are entitled to judgment as a matter of law on this claim and all of the others.
IV .
CONCLUSION
The Court has granted Plaintiff every reasonable indulgence, and then some. Even after the Court repeatedly explained Plaintiff's obligations in opposing summary judgment and gave him numerous chances and extensions to complete that briefing, he has failed to do so. On the record properly before the Court, it is clear that there is no genuine issue of fact for trial and that the moving Defendants are entitled to judgment as a matter of law. Accordingly, IT IS RECOMMENDED that the District Court
(1) enter an Order (a) accepting the findings and conclusions in this Report and Recommendation and (b) granting Defendants' motion for summary judgment; and
(2) enter Judgment dismissing the action (a) with prejudice as to the moving defendants, Mortensen and the City of Long Beach, and (b) without prejudice as to the ten Doe defendants, who never appeared.