Black v. City of Vallejo

LEROY BLACK, Plaintiff,

v.CITY OF VALLEJO, Defendant.

No. 2:12-cv-1439 GEB DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: May 20, 2013

ORDER AND

FINDINGS AND RECOMMENDATIONS

Plaintiff, a former state prisoner, is proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. The matter is before the court on a motion for judgment on the pleadings brought on behalf of defendant Boersma. Plaintiff has filed an opposition to the motion, and defendant has filed a reply.

BACKGROUND

Plaintiff is proceeding on an amended complaint against Vallejo Police Officer Barry Boersma. Therein, plaintiff alleges as follows. On October 15, 2011, police officers approached plaintiff while he was standing at a Golden One automatic teller machine ("ATM"). A brief foot pursuit ensued, at the conclusion of which defendant officer Boersma, without warning, tasered plaintiff in the back resulting in plaintiff suffering serious and permanent injuries. Based on these allegations, plaintiff claims that defendant officer Boersma usedexcessive force against him during the course of his arrest in violation of the Fourth Amendment. (Am. Compl. at 3-4.)

JUDGMENT ON THE PLEADINGS STANDARD UNDER RULE 12(c)

The Federal Rules of Civil Procedure provide that, "[a]fter the pleadings are closed - but early enough not to delay the trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). In deciding a motion for judgment on the pleadings, the court must accept the factual allegations of the complaint as true and construe the allegations in the light most favorable to the non-moving party. See Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542 (9th Cir. 2006). The court may grant a motion for judgment on the pleadings where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See id.

As a general rule, when deciding a motion for judgment on the pleadings, the court may not consider factual material extrinsic to the complaint. See Fed. R. Civ. P. 12(d). However, the court may consider facts that "are contained in materials of which the court may take judicial notice."¹ Heliotrope General, Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999). See also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (a court is allowed to consider extrinsic evidence without converting a motion to dismiss to a motion for summary judgment when the evidence is judicially noticeable as a matter of public record); Branch v. Tunnell, 14 F.3d 449, 454-55 (9th Cir. 1994) (a court is allowed to consider extrinsic documents without converting a motion to dismiss into a motion for summary judgment when: (1) the documents are attached to or mentioned in the pleadings; (2) the documents are notattached but are integral to the claims; and (3) the documents are subject to judicial notice), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

OTHER APPLICABLE LEGAL STANDARDS

I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. Fourth Amendment and Excessive Force

A claim that a law enforcement officer used excessive force during the course of an arrest is analyzed under the Fourth Amendment and an objective reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). Under this standard, "'[t]he force which [i]sapplied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors.'" Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (quoting Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)). In addressing this legal standard, the Ninth Circuit recently reiterated:

We ask whether the officers' actions are objectively reasonable in light of the facts and circumstances surrounding them. We must balance the nature of the harm and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. Stated another way, we must balance the amount of force applied against the need for that force.

Bryan v. McPherson, 630 F.3d 805, 823-24 (9th Cir. 2010) (internal quotations and citations omitted). See also Scott v. Harris, 550 U.S. 372, 383-84 (2007); Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Liston, 120 F.3d at 976.

In analyzing the nature and quality of the intrusion on an individual's Fourth Amendment interests, the court considers both the type and the amount of force used. See Bryan, 630 F.3d at 824. "Force is excessive when it is greater than is reasonable under the circumstances." Santos, 287 F.3d at 854 (citing Graham, 490 U.S. 386). Thus,

[a]lthough it is undoubtedly true that police officers are often forced to make split-second judgments, and that therefore not every push or shove, even if it may seem unnecessary in the peace of a judge's chambers is a violation of the Fourth Amendment, it is equally true that even where some force is justified, the amount actually used may be excessive.

Santos, 287 F.3d at 853 (internal quotations and citations omitted).

In analyzing the governmental interests at stake, the court considers a range of factors, including "'(1) the severity of the crime at issue, (2) whether the suspect pose[d] an immediate threat to the safety of the officers or others . . . (3) whether he [was] actively resisting arrest or attempting to evade arrest by flight,' and any other 'exigent circumstances [that] existed at the time of the arrest.'" Deorle, 272 F.3d at 1280 (quoting Headwaters Forest Def. v. Countyof Humboldt, 240 F.3d 1285 (9th Cir. 2000), vacated and remanded on other grounds, 534 U.S. 801 (2001)). These factors are not exclusive, however. Rather, the court must "examine the totality of the circumstances and consider 'whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'" Bryan, 630 F.3d at 826. For example, the court may appropriately consider whether a warning was given before force was used. See Deorle, 272 F.3d at 1285 ("Less than deadly force that may lead to serious injury may be used only when a strong governmental interest warrants its use, and in such circumstances should be preceded by a warning, when feasible.").

III. Qualified Immunity

Government officials enjoy qualified immunity from civil damages unless their conduct violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified immunity defense, the central questions for the court are: (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a statutory or constitutional right; and (2) whether the right at issue was "clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2001).

The United States Supreme Court has held that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, 236 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity at that point without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 555 U.S. 236-242.

"A government official's conduct violate[s] clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Ashcroft v. al-Kidd, __ U.S. __, __,131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635 (1987)). In this regard, "existing precedent must have placed the statutory or...