Summary
applying California law and defining unreasonableness as additional element of battery when alleged against a police officer
Summary of this case from A.C. v. City of Santa ClaraOpinion
No. C-00-01293 EDL
July 11, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
On August 25, 1999, Plaintiff Mark Irvine filed this suit against Defendants City County of San Francisco, San Francisco Sheriff's Department, San Francisco County Sheriff Michael Hennessey, San Francisco Police Department and San Francisco Police Officers Ellina Tepper, Martha Juarez and Carolyn Lucas and San Francisco Department of Public Health seeking damages stemming from Plaintiff's arrest and subsequent overnight confinement. In his unverified complaint, Plaintiff alleges ten claims: (1) false arrest and imprisonment; (2) assault and battery; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) invasion of privacy; (6) failure to discharge mandatory duty; (7) failure to furnish medical care to prisoner; (8) violation of 42 U.S.C. § 1983; (9) negligence in hiring; and (10) negligence in training. On April 12, 2000, Defendants removed this action to federal court.
On April 27, 2001, Defendants moved for summary judgment. The proof of service indicates service by mail on April 27, 2001 to Plaintiff's address of record. Plaintiff failed to oppose Defendants' motion. Defendants timely filed a reply clarifying one point in their motion on May 21, 2001.
On June 5, 2001, the Court held a hearing on Defendants' Motion for Summary Judgment. Deputy City Attorney Andrew Cheng appeared for Defendants. Plaintiff appeared pro se. During the hearing, Plaintiff orally sought additional time to respond to Defendants' Motion for Summary Judgment, which Plaintiff claimed to have received on May 30, 2001, yet failed to open until the weekend of June 2-3, 2001. The Court provided Plaintiff with several opportunities at the hearing to respond to the merits of Defendants' Motion, but Plaintiff declined to do so.
Also on June 5, 2001, at 9:31 a.m., Plaintiff filed an "Objection of Plaintiff to Magistrate Judge" seeking to withdraw his written consent that he had given at a case management conference on July 18, 2000. For the reasons set forth in detail in its June 12, 2001 Order, the Court denied Plaintiff's request to withdraw his consent.
Also in the June 12, 2001 Order, the Court granted Plaintiff's oral request for additional time, allowing him until June 26, 2001 to respond to Defendants' Motion for Summary Judgment. As a courtesy, the Court's courtroom deputy spoke to Plaintiff by telephone to let him know that the Court's June 12, 2001 Order had been mailed to his address of record — a post office box in San Francisco that Plaintiff had previously stated that he did not frequently check but nonetheless chose to use as his address for this lawsuit. Again, Plaintiff failed to oppose Defendants' motion and did not contact the Court to seek additional time. Defendants filed a timely reply on July 3, 2001 confirming that Plaintiff did not serve an opposition on Defendants.
The Court's June 12, 2001 Order stated that upon completion of the briefing, Defendant's Motion for Summary Judgment would be decided on the papers. Upon consideration of the parties' submissions, the arguments at the hearing, the relevant authorities and the record in this case and good cause appearing, the Court grants Defendants' Motion for Summary Judgment.
FACTUAL BACKGROUND
The facts are undisputed and were primarily taken from Plaintiff's deposition and the deposition of Benyam Deressa, a percipient witness. During the events at issue, Plaintiff lived in a residential hotel at 520 S. Van Ness Avenue in San Francisco. Plaintiff was involved in community attempts to clean up his neighborhood and had testified against drug dealers and others. See Compl. at ¶ 24.
Plaintiff suffers from Reiter's Syndrome, a form of reactive arthritis that affects Plaintiff's body in different places and causes severe pain, primarily in the form of migraines. See Declaration of Andrew Y.S. Cheng ("Cheng Decl.") Ex. B (Irvine Dep.) at 16:2-17:5. Plaintiff contracted this illness when he was in the Middle East in a Special Forces Unit in approximately 1973-1974. See id. at 17:7-24. Plaintiff takes at least 10 to 12 medications to deal with his illness and has not been completely free of medications since 1994. See id. at 39:2-25. Plaintiff's medications include Indocin, Cyclobenzaprine, Percocet, Oxycodone, Morphine, Methadone, Omeprazole and Lysinopril. See id. at 39:5-12.
On April 25, 1998, in the evening, Plaintiff called 911 because his neighbor in the hotel, Benyam Deressa, had threatened to assault and kill him with a golf club. See id. at 51:7-52:24; 53:8-10. San Francisco Police Officers Ellina Tepper and Martha Juarez responded. See id. at 53:13-17.
Tepper and Juarez arrested Deressa. See id. at 61:7-9. Deressa then demanded a citizen's arrest of Plaintiff. See Cheng Decl. Ex. C (Deressa Dep.) at 13:17-21; Ex. B at 65:9-19. Pursuant to the citizen's arrest, Tepper and Juarez arrested Plaintiff. See Cheng Decl. Ex.B. at 61:12-13. Plaintiff concedes that Tepper and Juarez did not indicate, prior to Deressa seeking a citizen's arrest, that they would arrest Plaintiff. See id. at 61:16-24; 66:15-24.
Tepper and Juarez released Deressa at the scene. See id. at 65:1-3. Plaintiff, however, was not released at the scene. Tepper and Juarez discovered that he had an outstanding warrant for a traffic citation in Alameda County. See id. at 61:24-62:2. Plaintiff conceded that the warrant was valid at the time of this incident. See id. at 180:24-25.
When Plaintiff was taken to the Mission Street Police Station, he spoke with Sergeant Lucas and told her that there was no probable cause for his arrest. See id. at 96:3-5. He told Lucas that it was "ludicrous" that he was arrested and held, but that Deressa was not. See id. at 96:8-9. Lucas did not release Plaintiff.
See id. at 96:11-12. Plaintiff was held for four hours at the Mission Street Station before he was transferred to San Francisco County Jail at 850 Bryant Street. Plaintiff was released from jail in the morning of the next day, April 26, 1998. See id. at 210:16-17.
SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rule of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id.
A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Liberty Lobby, 477 U.S. at 250. The opposing party, however, need not produce evidence in a form that would be admissible at trial in order to avoid a summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Nor must the opposing party show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is sufficient evidence supporting the asserted factual dispute and requiring a jury or judge to resolve the parties' differing versions of the truth at trial. See id. "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
Summary judgment may not be granted solely because the non-moving party failed to file an opposition. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 n. 4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that there are no material issues of fact). A district court, however, may grant an unopposed motion for summary judgment if the movant's papers are themselves sufficient to support the motion and do not on their face reveal a genuine issue of material fact. See United States v. Real Prop. at Incline Vill., 47 F.3d 1511, 1520 (9th Cir. 1995).
DISCUSSION
1. Summary Judgment Is Proper As To Plaintiff's 42 U.S.C. § 1983 Claim Against All Defendants.
Under 42 U.S.C. § 1983, a plaintiff must prove that a person acting under color of state law committedan act that deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 1983. "A person deprives another `of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].'" Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (emphasis in original) (citing Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)).
A. Plaintiff failed to meet his burden of raising a triable issue of fact as to whether Sheriff Michael Hennessey could be liable under 42 U.S.C. § 1983 as a supervisor.
Respondeat superior liability may not be imposed under 42 U.S.C. § 1983, absent a state law imposing such liability. See Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). California has no such law. Therefore, a state official must play a personal role in the constitutional deprivation to be liable. See Redman, 942 F.2d at 1446; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Specifically, a supervisor may be liable if there is either: (1) his or her personal involvement in the constitutional deprivation; or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. See Redman, 942 F.2d at 1446 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). The causal connection can be established if the supervisor set "in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Redman, 942 F.2d at 1447 (citing Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).
Here, Plaintiff sued Hennessey in his supervisory capacity as the "person in charge of the operation of the San Francisco Jails and the medical protocols and procedures for treatment of individuals confined in San Francisco jails." Compl. at ¶ 4. Plaintiff conceded in his deposition, however, that Hennessey had no personal involvement with Plaintiff at any point in time. See Cheng Decl. Ex.B. at 107:25. He also conceded that he was unaware that Hennessey ordered anyone to deny Plaintiff medical treatment or that Hennessey ordered police to threaten Plaintiff. See id. at 108:1-4. Plaintiff stated that he had no knowledge that Hennessey personally hired or trained the individuals that Plaintiff claims are responsible for his injuries. See id. at 183:13-16; 184:6-9. Plaintiff has failed to show any evidence of Hennessey's personal involvement in the alleged constitutional deprivation.
Further, Plaintiff has failed to show a sufficient causal connection for supervisory liability. Plaintiff has presented no evidence that Hennessey set in motion the acts by others which allegedly caused injury to Plaintiff.
There is no evidence that Hennessey knew of or condoned any misconduct by police officers or that Hennessey ultimately directed daily operations at the police station. Plaintiff has not shown that Hennessey even knew of any of the events leading up to and including Plaintiff's arrest. Plaintiff simply states in his deposition that the individuals who caused his injuries are under the control and supervision of Hennessey. See Cheng Decl. Ex.B at 184:9. This is insufficient to establish the causal connection for supervisory liability.
Plaintiff has failed to raise a triable issue of material fact with respect to his civil rights claim against Hennessey. Accordingly, with respect to Plaintiff's 42 U.S.C. § 1983 claim against Hennessey, Defendants' Motion for Summary Judgment is GRANTED.
B. Although Plaintiff has met his burden of raising a triable issue of fact as to whether Sergeant Carolyn Lucas could be liable as a supervisor under 42 U.S.C. § 1983, Lucas is entitled to qualified immunity.
1. Supervisory liability
Carolyn Lucas is the supervisor of Officers Tepper and Juarez. As with Hennessey, Plaintiff would have to show either personal involvement by Lucas or a sufficient causal connection between Lucas' conduct and the constitutional violation to establish liability for the civil rights violations. Plaintiff has not shown any evidence of Lucas' personal involvement in the alleged constitutional deprivations that took place before Plaintiff arrived at the Mission Street Station. Nor is there any evidence that Lucas knew of any alleged unconstitutional actions by Tepper and Juarez and failed to prevent them. Lucas was not present when Tepper and Juarez arrested Plaintiff. Plaintiff conceded that he had no personal knowledge that Lucas ordered anyone to put handcuffs tightly on him. See Cheng Decl. Ex. B at 109:6-10.
On the other hand, Plaintiff has presented evidence of personal involvement by Lucas in the alleged constitutional deprivations that took place after he reached the Mission Street Police Station. When Plaintiff arrived there and protested his arrest and confinement, Lucas did not release him. See Cheng Decl. Ex. B at 96:1-25; 111:15-25. In addition, Lucas' failure to release Plaintiff is causally connected to the alleged constitutional deprivation. As discussed in more detail below, however, Lucas' conduct with respect to Plaintiff was not wrongful.
Plaintiff has met his burden of showing a triable issue of fact with respect to Lucas' supervisory liability for events that occurred after Plaintiff arrived at the police station. His civil rights claim against Lucas fails, however, because Lucas is entitled to qualified immunity.
2. Qualified immunity
Qualified immunity protects "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where a government official asserts qualified immunity, the district court must first inquire whether "the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001).
If a constitutional violation could be established, the next inquiry is whether the right was clearly established in the specific context of the case, rather than as a broad general proposition. See id. The dispositive inquiry in determining whether a right is clearly established is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.; see also Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).
In Saucier, Elliot Katz alleged that the officers used excessive force to arrest him as a protester at a speech given by Vice-President Al Gore in San Francisco. See Saucier, 121 S.Ct. at 2154. As Katz prepared to unveil a banner protesting animal experimentation, a military police officer grabbed Katz and rushed him out of the speaking area and into a police van. See id.
In analyzing the first inquiry for qualified immunity, the Saucier Court assumed the existence of a constitutional violation based on the general rule prohibiting excessive force. See id. at 2159. The Court advanced to the next inquiry, that is, "whether this general prohibition against excessive force was the source for clearly established law that was contravened in the circumstances this officer faced." Id. The Court focused on what the officer "reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards." Id. The Court found that the officer's actions were reasonable under the circumstances and that there was no clearly established rule that would prohibit the officer from using the force that he did to place Katz in the police van. See id. at 2160. This conclusion was supported by the fact that Katz did not sustain any injuries. See id. Therefore, the officer was entitled to qualified immunity. See id.
Here, even if the Court assumes, as in Saucier, that a constitutional violation could have occurred under the facts alleged based on the rule prohibiting excessive force, there was no clearly established law that was contravened in the context of this case. In the totality of the circumstances, Sergeant Lucas had legitimate justification for acting as she did. An arrestee may be detained for up to 48 hours without having a probable cause determination. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Lucas' conduct was objectively reasonable. After finding that Plaintiff had an outstanding warrant, Lucas upheld the decision of the arresting officers to hold Plaintiff after the citizen's arrest. That the warrant resulted from an allegedly fine-only offense does not make Lucas' conduct unreasonable. Cf. Atwater v. City of Lago Vista, 121 S.Ct. 1536, 1557 (2001) (Fourth Amendment does not prohibit warrantless arrest for a criminal offense punishable only by a fine). Plaintiff was then transferred to the jail, where he was released the next day, less than 24 hours later. Lucas' actions were objectively reasonable and Plaintiff presents no evidence to refute that conclusion. Accordingly, with respect to Plaintiff's 42 U.S.C. § 1983 claim against Sergeant Lucas, Defendants' Motion for Summary Judgment is GRANTED.
C. Officers Ellina Tepper and Martha Juarez are entitled to qualified immunity and therefore cannot be liable to Plaintiff under 42 U.S.C. § 1983.
Officers Tepper and Juarez are also entitled to qualified immunity that protects them from any potential liability for Plaintiff's 42 U.S.C. § 1983 claim. Even if the Court assumes that a constitutional violation could have occurred under the facts alleged based on the rule prohibiting excessive force, in the context of this case, it would not have been clear to officers acting reasonably that their conduct was unlawful in the situation they faced. See Saucier, 121 S.Ct. at 2156. In the totality of the circumstances, Officers Tepper and Juarez had legitimate justification for acting as they did. The right of a police officer to make an arrest "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham v. Connor, 490 U.S. 386, 396 (1989). The conduct of Officers Tepper and Juarez was objectively reasonable. The officers responded to a "911" call from Plaintiff. They arrested Deressa and took Plaintiff into custody after Deressa made a citizen's arrest of Plaintiff. After finding that Plaintiff had an outstanding warrant, they took him to the police station instead of releasing him at the scene. These actions were objectively reasonable and Plaintiff presents no evidence to refute that conclusion or to create a triable issue of fact.
This conclusion is supported by the fact that Plaintiff does not allege any physical injuries. If the officers truly used excessive force, it would be expected that Plaintiff would have suffered physical injuries. See Saucier, 121 S.Ct. at 2160. Accordingly, with respect to Plaintiff's 42 U.S.C. § 1983 claim against Officers Tepper and Juarez, Defendants' Motion for Summary Judgment is GRANTED.
D. Plaintiff failed to meet his burden of raising a triable issue of fact as to the existence of a formal policy or custom under which the City and County of San Francisco could be liable under 42 U.S.C. § 1983.
Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort. See Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978). A city or county, however, may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. See Board of the County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Instead, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injuries that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986) (noting that a decision made by an official who possesses final authority to establish policy with respect to the challenged action may constitute an official policy for purposes of § 1983 liability.).
A policy giving rise to local government liability cannot be established merely by identifying conduct that is properly attributable to the municipality. "The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged." Brown, 520 U.S. at 404. That is, the municipal action must have been taken with the requisite degree of culpability and with a direct causal link to the deprivation of the federal right. See id.
Proof of random acts or isolated incidents of unconstitutional action by a non-policymaking employee are insufficient to establish the existence of a municipal policy or custom. See McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000); Davis v. City of Ellenburg, 869 F.2d 1230, 1233 (9th Cir. 1989). "When one must resort to inference, conjecture and speculation to explain events, the challenged practice is not of sufficient duration, frequency and consistency to constitute an actionable policy or custom." Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).
Here, Plaintiff has failed to provide any evidence of a policy or custom attributable to the City that caused the alleged constitutional deprivations. Further, Plaintiff has no evidence that the City was the moving force behind the alleged injuries. In addition, because the individual police officers are not liable under § 1983, the municipal entity cannot be liable. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Plaintiff failed to demonstrate a triable issue of fact as to the existence of a policy or custom under which the City could be liable under 42 U.S.C. § 1983. Accordingly, with respect to Plaintiff's 42 U.S.C. § 1983 claim against the City and County of San Francisco, Defendants' Motion for Summary Judgment is GRANTED.
2. Summary Judgment Is Proper For Plaintiff's State Law Claims Against All Defendants.
A. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on false arrest/false imprisonment.
False arrest and false imprisonment are not separate torts; false arrest is one way to commit a false imprisonment. See 5 Bernard Witkin, Summary of California Law § 378 (9th ed. 1988). False imprisonment is the unlawful violation of the personal liberty of another. Cal. Penal Code § 236 (West 1999). The tort requires restraint of the person for some length of time, compelling him to stay against his will. See Restatement (Second) of Torts § 35 (1965).
A private person may make a "citizen's arrest" for a public offense committed in his presence. See Cal. Penal Code § 837(1) (West 1985); 5 Bernard Witkin, Summary of California Law § 390 (9th ed. 1988). A citizen's arrest results where a citizen sees a public offense, calls the police and makes the arrest. The police, even though they did not witness the alleged crime, must take the person into custody. See Cal. Penal Code §§ 847, 849 (West 1985 Supp. 2001); 5 Bernard Witkin, Summary of California Law § 390.
A police officer cannot be civilly liable for false arrest as a result of taking custody of a person at the request of a citizen making an arrest. See Kinney v. County of Contra Costa, 8 Cal.App.3d 761, 769 (1970); Cal. Penal Code § 847 (West 1985 Supp. 2001). Also, once a citizen arrests a person, the police officer has a duty, breach of which is punishable by fines and imprisonment, to receive the arrested person into custody. See Cal. Penal Code § 142 (West 1999).
Here, Plaintiff claimed in his complaint that police officers arrested and imprisoned him against his will and without the legal authority to do so. Compl. at ¶ 31. Plaintiff stated that he repeatedly requested to be released. Id. at ¶ 32. Plaintiff clearly did not agree with his arrest. His arrest and confinement, however, were lawful. Under the citizen's arrest statute, Plaintiff was lawfully arrested by citizen Deressa and taken into custody by Officers Tepper and Juarez. The police subsequently found that Plaintiff had an outstanding warrant against him and held Plaintiff for less than 24 hours. Defendants could have released Plaintiff, but they properly took him into custody and held him on the warrant. While Plaintiff was denied his personal liberty, that deprivation was not unlawful.
Because Plaintiff failed to oppose this Motion, he has failed to provide any evidence to contradict that proffered by Defendants. On summary judgment, Plaintiff cannot rely on mere allegations unsupported by evidence.
Alternatively, even if there were no duty to arrest pursuant to a citizen's arrest, Defendants would be protected from liability by discretionary act immunity for injuries resulting from discretionary actions. "A public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Gov't Code § 820.2 (West 1995). The decision to arrest is an exercise of discretion for which a police officer may not be liable in tort. See McCarthy v. Frost, 33 Cal.App.3d 872, 875 (1973).
Plaintiff has failed to raise a triable issue of fact with respect to his false arrest/false imprisonment claim.
Alternatively, Defendants are protected by discretionary act immunity. Accordingly, with respect to this claim, Defendants' Motion for Summary Judgment is GRANTED.
B. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on assault and battery.
Assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on another. See Cal. Penal Code § 240 (West 1999). The essence of the intentional tort of assault is the apprehension of harmful or offensive contact. Restatement (Second) of Torts § 21 (1965). Battery is any willful or unlawful use of force or violence upon another that causes injury. See Cal. Penal Code § 243 (West 1999 Supp. 2001). The essence of the intentional tort of battery is the harmful or offensive contact. Restatement (Second) of Torts § 18 (1965).
Where a police officer is the defendant, the plaintiff must prove unreasonable force as an additional element of these torts. See Edson v. City of Anaheim, 63 Cal.App.4th 1269, 1272 (1998). While Edson addressed the tort of battery and did not specifically mention assault, the reasoning used by that court to find that a plaintiff must show unreasonable force when alleging battery against a police officer applies equally to an assault claim. See also Heymann v. California, 2000 U.S. Dist. LEXIS 16357 (N.D.Cal. 2000) (Plaintiff's claim for assault and battery failed because police officer used reasonable force). Specifically, the Edson court reasoned that the rule requiring proof of unreasonableness accounts for the special situation of police defendants who are charged with acting affirmatively and using force as part of their duties. See Edson, 63 Cal.App.4th at 1273. Further, a police officer must have control of the manner and means of making an arrest because the officer must make snap decisions in tense situations. See id. Further, the rule announced in Edson is consistent with the rules regarding burden of proof in 42 U.S.C. § 1983 cases. See id. at 1274. Accordingly, Plaintiff must prove unreasonable force to prevail on his assault and battery claim.
In his complaint, Plaintiff contends that Defendants committed assault and battery by keeping him illegally confined, by repeatedly placing him in places where he was in danger, by handcuffing him and by pushing, holding and searching him. See Compl. at ¶ 38. In his deposition, Plaintiff states that Tepper, Juarez and Lucas assaulted him by placing the handcuffs on him, by putting their hands on him and pushing him into a cell, by keeping him confined, by denying him his freedom, by moving him from one place to another, by taking him away from his home and by putting him in jail. See Cheng Decl. Ex. B at 109:21-110:4. Plaintiff also claims that he was assaulted by other unnamed police officers. See Cheng Decl. Ex. B at 186:19-25.
Plaintiff, however, has not put forth any evidence that the police officers acted with unreasonable force. Although Plaintiff testified that he sustained injuries in the form of an exacerbation of his Reiter's Syndrome (see Cheng Decl. Ex. B at 172:25), there is no evidence that Plaintiff's arrest varied from the standard arrest procedure used by police. Because Plaintiff has failed to demonstrate unreasonable force as required by Edson, summary judgment is proper with respect to the assault and battery claim.
Defendants' alternative immunity defenses based on California Penal Code § 847 and California Government Code § 820.2 are not well-taken. Penal Code § 847 precludes civil liability specifically for false arrest or false imprisonment, but does not address assault or battery. In addition, Government Code § 820.2 provides immunity for basic policy decisions, not for assault and battery. See Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998).
Plaintiff has failed to raise a triable issue of fact as to whether the police used unreasonable force. Accordingly, with respect to Plaintiff's assault and battery claim, Defendants' Motion for Summary Judgment is GRANTED.
C. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on intentional infliction of emotional distress.
The elements of the tort of intentional infliction of emotional distress are: "(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Trerice v. Blue Cross of Cal., 209 Cal.App.3d 878, 883 (1989). Outrageous conduct must "be so extreme as to exceed all bounds of that usually tolerated in a civilized society." Id. Conduct which exhibits mere rudeness and insensitivity does not rise to the level required for a showing of intentional infliction of emotional distress. See Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir. 1991).
Plaintiff alleges intentional infliction of emotional distress because Defendants "stripped plaintiff of the means to resist or to effect his release or proper medical care. The defendants confinement of plaintiff was outrageous and intended to cause plaintiff emotional distress. . . ." Compl. at ¶ 43. Plaintiff did not testify specifically about his claim of intentional infliction of emotional distress in his deposition.
Here, Plaintiff has not presented a triable issue of fact with respect to at least the first and second elements of his intentional infliction of emotional distress claim. Defendants' conduct does not nearly rise to the level of outrageous. Indeed, the evidence reflects that Defendants were simply doing their jobs and lawfully exercising their discretion to arrest and hold Plaintiff. Plaintiff has failed to present any evidence to demonstrate that Defendants' conduct was outrageous. Moreover, there is no evidence that Defendants intended to cause or recklessly disregarded the probability of causing emotional distress to Plaintiff. Although Plaintiff opines in his complaint that Defendants conspired against him due to his activities relating to helping the police clean up his neighborhood, he did not provide any evidence to support his supposition. Accordingly, with respect to Plaintiff's intentional infliction of emotional distress claim, Defendants' Motion for Summary Judgment is GRANTED.
D. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on negligent infliction of emotional distress.
The negligent causing of emotional distress is not an independent tort, but is a form of negligence requiring the elements of duty, breach, causation and damages. See Huggins v. Longs Drug Stores Cal., Inc., 6 Cal.4th 124, 129 (1993); see also 5 Bernard Witkin, Summary of California Law § 838 (9th ed. 1988). The existence of a duty is a question of law. See Huggins, 6 Cal.4th at 129. The relevant factors to consider when determining whether a duty exists include:
. . . the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Lubner v. City of Los Angeles, 45 Cal.App.4th 525, 533 (1996) (citing Pleasant v. Celli, 18 Cal.App.4th 841, 851 (1993) (disapproved on other grounds in Adams v. Paul, 11 Cal.4th 583, 591, n. 4 (1995))). Foreseeability is the most important factor. See Pleasant, 18 Cal.App.4th at 852. The foreseeability inquiry focuses on whether "the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately by imposed on the negligent party." Lubner, 45 Cal.App.4th at 533.
Analysis of the factors set forth above, however, does not demonstrate that the Defendants breached a duty of care to Plaintiff. Plaintiff did not present any medical evidence that his arrest and confinement caused an aggravation of Plaintiff's medical condition, although Plaintiff has testified that he experienced an exacerbation of his preexisting Reiter's Syndrome. More importantly, there is no indication that the police officers used any excessive force or that they carried out the arrest in a manner that would injure Plaintiff. Therefore, it was not foreseeable that Plaintiff would be injured by this routine arrest.
Nothing in the record shows that Defendants acted in a morally blameful manner. The legislature's enactment of statutes to preclude civil liability on the part of police officers except in certain circumstances reveals a legislative intent to avoid deterring officers unduly from performing their law enforcement duties such as arrest and detention. The burden on Defendants and consequences to the community of imposing a duty in these cases is high in that police would be hindered in their public safety duties if they could be civilly liable for a reasonable and lawful arrest such as occurred in this case. There is no evidence in the record regarding insurance for this type of liability. Plaintiff has not presented a triable issue of fact. There is no evidence that Defendants conducted themselves other than routinely during Plaintiff's arrest and detention. Accordingly, with respect to Plaintiff's negligent infliction of emotional distress claim, Defendants' Motion for Summary Judgment is GRANTED.
E. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on invasion of privacy.
"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) Torts § 652B (1977). In his complaint, Plaintiff contends that Defendants invaded his privacy by "falsely arresting plaintiff and transporting and confining plaintiff in jail, against his will . . ." Compl. at ¶ 57. Plaintiff contends that he was forced to remove clothing in the presence of others to put on the jail's clothing. See id. Plaintiff also alleges that his privacy was invaded because Defendants denied him medical treatment. See id.
In his deposition, Plaintiff stated that his privacy was invaded because he was taken away from his home, was deprived of his freedom and was denied the most menial things necessary for maintaining his health and peace of mind. See Cheng Decl. Ex. B at 149:12-16. He conceded, however, that neither Tepper nor Juarez nor Lucas asked him to remove his clothing. See id. at 149:17-25.
As discussed above, Plaintiff was not falsely arrested. Thus, while Defendants may have intentionally intruded in Plaintiff's affairs to arrest him, Defendants' actions, as police officers, would not be highly offensive to a reasonable person, particularly since the arrest was lawful. Plaintiff has not provided any evidence to show a triable issue of fact as to whether the intrusion was highly offensive to a reasonable person. Accordingly, with respect to Plaintiff's invasion of privacy claim, Defendants' Motion for Summary Judgment is GRANTED.
F. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on failure to discharge a mandatory duty.
"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Cal. Gov't Code § 815.6 (West 1995); California v. Superior Court, 150 Cal.App.3d 848, 854 (1984). Plaintiff contends that Defendants violated their mandatory duty to release plaintiff from custody and their mandatory duty to provide medical care. See Compl. at ¶ 61; Cheng Decl. Ex.B at 152:20-24. Plaintiff also appears to be contending that Defendants had a mandatory duty to confine him in another manner, presumably in a single cell. See Cheng Decl. Ex. B at 152:23-24.
Rather than wrongly holding Plaintiff, Defendants held him at the police station because he had an outstanding warrant that Plaintiff concedes was valid at the time of the arrest. The police were within their discretion to take Plaintiff to the police station and to hold him until the next morning. Plaintiff has pointed to no enactment imposing a mandatory duty to release Plaintiff under these circumstances. In addition, Plaintiff has not established that a mandatory duty to provide medical care exists, although providing medical care to prisoners is required under some circumstances. See Cal. Gov't Code § 845.6 (West 1995). Finally, Plaintiff has not provided any evidence of a mandatory duty to confine Plaintiff in any particular manner in the jail.
This duty is the subject of Plaintiff's seventh claim, discussed in section H below.
Plaintiff has failed to demonstrate a triable issue of fact as to the existence of a mandatory duty that Defendants failed to discharge. Accordingly, with respect to Plaintiff's claim based on failure to discharge a mandatory duty, Defendants' Motion for Summary Judgment is GRANTED.
G. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claims based on negligent hiring and training.
An employer may be liable to a third person for negligently hiring or training an unfit employee. Evan F. v. Hughson United Methodist Church, 8 Cal.App.4th 828, 836 (1992). Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that the particular harm materialized. See id. at 836-837; see also Doe v. Capital Cities, 50 Cal.App.4th 1038, 1055 (1996) (the cornerstone of a negligent hiring or training theory is the risk that the employee will act in a certain way and the employee does act in that way).
In his deposition, Plaintiff stated only that he was alleging that Hennessey was negligent in hiring because he was a person within the City that was responsible for hiring officers. See Cheng Decl. Ex. B at 183:2-8. Plaintiff did not know of any other people that would be liable for negligent hiring. See id. at 9-12. Plaintiff also stated that Hennessey and unnamed others within the San Francisco Police Department who were responsible for the control and supervision of officers were liable for negligent training. See Cheng Decl. Ex.B at 183:21-184:13.
Conspicuously absent is any evidence showing that Hennessey or the City knew of any reason that these employees would create a particular risk of harm and that the particular harm occurred. Accordingly, with respect to Plaintiff's claims based on negligent hiring and training, Defendants' Motion for Summary Judgment is GRANTED.
H. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claim based on failure to furnish medical care to a prisoner.
Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.6 and 856, a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.
Cal. Gov't Code § 845.6 (West 1995) (emphasis added). Immunity under this section is absolute except for the situation of a failure to provide medical care for a prisoner in obvious need of immediate medical care. See Lucas v. City of Long Beach, 60 Cal.App.3d 341, 349 (1976); see also Kinney v. County of Contra Costa, 8 Cal.App.3d 761, 770 (1970) (prisoner's request for something for a headache was not sufficient for notice that prisoner was in need of immediate medical attention). Liability is limited to where the public entity intentionally or unjustifiably fails to furnish medical care. See Watson v. California, 21 Cal.App.4th 836, 841-43 (1993) (medical care provided but prisoner was misdiagnosed; no liability under California Government Code § 845.6).
Here, the only evidence before the Court on the issue of notice of the need for medical care is Plaintiff's testimony that on one occasion he told the police that he needed access to medical personnel. See Cheng Decl. Ex. B at 152:10-11. In his unverified complaint, Plaintiff made additional allegations regarding his need for immediate medical attention. See Compl. at ¶ 22, 66, 68. On summary judgment, however, Plaintiff cannot rely on mere allegations unsupported by evidence. Further, Plaintiff admits that he suffered no permanent damage as a result of this incident. See Cheng Decl. Ex. B at 172:24-25.
While Plaintiff has presented evidence that he informed Defendants that he needed access to medical personnel and it is undisputed that Plaintiff suffers from Reiter's Syndrome, Plaintiff has submitted no evidence that Defendants knew or should have known that Plaintiff was in obvious need of immediate medical attention on the night of his arrest or that his medical condition was readily apparent. In addition, there is no evidence that Defendants intentionally or unjustifiably denied him medical attention. Accordingly, with respect to Plaintiff's claim based on failure to furnish medical care to a prisoner pursuant to Government Code § 845.6, Defendants' Motion for Summary Judgment is GRANTED.
I. Plaintiff failed to meet his burden of raising a triable issue of fact with respect to his state law claims against the City and County of San Francisco.
Except as provided in California Government Code § 845.6, a public entity cannot be liable for an injury to a prisoner. See Cal. Gov't Code § 844.6 (West 1995). While Government Code § 844.6 precludes recovery by prisoners for injuries, Government Code § 845.6 creates a duty to provide medical care under certain circumstances, and recovery for breach of that duty is not precluded by Government Code § 844.6. See Hart v. Orange County, 254 Cal.App.2d 302, 306 (1967). As discussed above, however, there is no triable issue of fact as to liability of Defendants under Government Code § 845.6.
"Prisoner" includes an inmate of a prison, jail or penal or correctional facility. See Cal. Gov't Code § 844 (West 1995 Supp. 2001). Further, a lawfully arrested person who is brought to a law enforcement facility for purposes of being booked is a prisoner as a matter of law upon entering into the facility. Id.; see also Reed v. County of Santa Cruz, 37 Cal.App.4th 1274, 1277 (1995).
In Reed, the plaintiff was arrested under warrant, taken to jail and confined to a holding cell. Under those facts, the plaintiff was a prisoner for purposes of Government Code § 844.6. The Reed court dispelled the notion, advanced in Zeilman v. County of Kern, 168 Cal.App.3d 1174 (1985), that completion of the booking process is the bright line when an arrestee becomes a prisoner. "A person who is lawfully confined in a correctional facility pursuant to penal processes is a prisoner as a matter of law within the meaning of Government Code section 844.6." Reed, 37 Cal.App.4th at 1280.
Under the facts of this case, as in Reed, Plaintiff was a prisoner for purposes of § 844.6 when he was arrested and lawfully brought to the Mission Street Station and the jail at 850 Bryant Street. Plaintiff has not presented any evidence to show that he was not a prisoner and that consequently, the City could be liable for his injuries.
Moreover, even if California Government Code § 844.6 does not preclude liability on the part of the City, summary judgment should be granted in favor of the City because the individual officers are not liable on the remaining causes of action. Accordingly, with respect to Plaintiff's state law claims against the City and County of San Francisco, Defendants' Motion for Summary Judgment is GRANTED.
CONCLUSION
Defendants' Motion for Summary Judgment (docket number 23) is granted. The clerk shall close the file.
IT IS SO ORDERED.