Buckhalter v. Torres

NICK C. BUCKHALTER, Plaintiff, v. DANIEL TORRES, in his personal and official capacitiesas a peace officer of Vacaville Police Department, et al., Defendants.

No. 2:17-cv-02072-KJM-AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 7, 2019

ORDER

This excessive force civil rights action brought under 42 U.S.C. § 1983 arises from plaintiff Nick Buckhalter's arrest and handcuffing by Vacaville police officer Daniel Torres. Plaintiff brought this lawsuit against defendants Torres, Vacaville police officer Roger Canady, the Police Chief, the City of Vacaville and other city and police department personnel, alleging Torres kept plaintiff secured in excessively tight handcuffs for up to seven hours before booking him into jail, despite plaintiff's requests to loosen them. Defendants Torres and Canady now move for summary judgment, or in the alternative, partial summary judgment on all of plaintiff's claims. Mot., ECF No. 46. Plaintiff has filed an opposition, ECF No. 53, and defendants have filed a reply, ECF No. 54. The court heard argument on the motion on January 25, 2019. As explained below, the court GRANTS in part and DENIES in part defendants' motion.

I. BACKGROUND

A. Disputed and Undisputed Facts

The following facts derive from defendants' statement of undisputed facts ("SUF"), plaintiff's statement of additional facts and defendants' response to that statement, evidence cited in those statements as well as the court's review of the record. See ECF No. 50. The court treats these facts as undisputed unless otherwise stated.¹ The parties may object to the evidence cited as proving the undisputed facts, In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010), and the court notes and resolves evidentiary objections below.

1. Evidentiary Objections

Defendants object to plaintiff's declaration in opposition to summary judgment, asserting the declaration impermissibly contradicts plaintiff's sworn deposition testimony. Reply, ECF No. 54, at 9-10. Defendants cite Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991), for the proposition that "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." This rule, however, "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony." Id. at 266-67. To invoke the rule, a district court must first determine that the contradiction is a "sham" used to "'create' an issue of fact and avoid summary judgment." Id. at 267. Then, the court must determine the inconsistency is "clear and unambiguous" to justify striking an affidavit. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009). An affidavit that elaborates on, explains, or clarifies deposition testimony is not a sham. Id. at 999 (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995)).

In his declaration, plaintiff claims he told Torres, shortly after being secured in the patrol vehicle, "the handcuffs are really tight-they're hurting my wrists" and asked Torres to loosen them, yet Torres ignored his request. Buckhalter Decl., ECF No. 53-1, ¶ 4. In his deposition, plaintiff testified he told Torres he "needed to go to the hospital" because his arm was"inflamed," but he did not mention the pain to anyone else; he said he felt the pain only in his left arm from his shoulder to his elbow. Buckhalter Dep. 91:6-92:18, ECF No. 49. Plaintiff further testified he asked Torres to loosen the handcuffs two times after leaving the hospital. Buckhalter Dep. 151:4-18. Defendants argue plaintiff's declaration is contradictory because plaintiff affirmatively states in his declaration he twice requested Torres loosen the handcuffs on his wrists, once before they arrived at the hospital and once after leaving the hospital, and Torres ignored both requests; yet in his deposition plaintiff testified he made both requests after leaving the hospital and never told Torres he was experiencing pain due to the handcuffs being too tight or requested Torres loosen the handcuffs prior to arriving at the hospital. Reply at 9-10.

The court finds plaintiff's declaration flatly contradicts his deposition testimony. Plaintiff testified he told Torres he "needed to go to the hospital" because "[his] arm was inflamed," but did not say anything else to Torres and did not speak to anyone else prior to arriving at the hospital. Buckhalter Dep. 91:9-92:2. Further, when asked during his deposition if he was "feeling pain . . . [a]nywhere else" other than his left shoulder, plaintiff responded "no." Buckhalter Dep. 92:12-18. Finally, plaintiff testified he twice asked Torres to loosen the handcuffs, making both requests after they left the hospital. Buckhalter Dep. 151:4-18. This testimony directly contradicts plaintiff's statements in his declaration that he told Torres the handcuffs were hurting his wrists and asked Torres to loosen them before they arrived at the hospital. Buckhalter Decl. ¶ 4. The court also notes the timing of plaintiff's declaration, which was signed on the day on which plaintiff filed his opposition to defendants' summary judgment motion, suggests plaintiff authored the declaration for the purpose of creating, or at least bolstering, a dispute of material fact.

For these reasons, the court STRIKES plaintiff's declaration.

2. Undisputed Facts

On September 9, 2016, plaintiff and his wife were moving from their home in Vacaville, California, to Georgia. SUF 1. Plaintiff owned numerous vehicles and had moved six of his cars, including a Chevrolet Monte Carlo, out of the garage and parked them on the streetnear the park located across the street from his residence to allow movers to pack and load the moving truck. SUF 3-4.

At or about 5:00 p.m., plaintiff went to move the Monte Carlo to a vehicle transport truck being used to transport his cars to Georgia. SUF 5-6. After starting the car, it "balked," and instead of stopping, plaintiff "mashed" on the gas to prevent it from stalling. SUF 7; Buckhalter Dep. 64:22-65:17. The car made a screeching noise and the tires spun or "jerked," leaving rubber marks on the pavement as plaintiff parked the car behind the transport truck. SUF 7, 9; Buckhalter Dep. 65:3-5, 66:15-67:16, 72:14-15. Coincidentally, defendant Canady, an off-duty Vacaville police officer, was at the park and observed plaintiff's alleged "burn out" as children played on the adjacent sidewalk and in the adjacent park. From Officer Canady's perspective, plaintiff's activity violated California Vehicle Code section 23109, which prohibits speed contests and exhibitions of speed.² SUF 8; Canady Decl. ¶¶ 2-6, ECF No. 47.

When plaintiff exited the Monte Carlo, Canady approached and advised plaintiff he was driving the vehicle in an unlawful and irresponsible manner, and that he faced possible arrest for violation of section 23109. SUF 10. Canady also told plaintiff he was an off-duty police officer. SUF 11. Plaintiff did not believe Canady was an off-duty police officer but did apologize and assured Canady there would no further incident. SUF 12-13. A few minutes later, after Canady returned to the park, Canady thought he heard plaintiff yell, "I'll be back!," but Canady did not know whether this statement was intended as a threat toward him. SUF 14; Canady Decl. ¶¶ 9-10. Canady then called the Vacaville Police Department, requested assistance from a uniformed officer and recommended plaintiff be arrested for violating section 23109. SUF 14.

Approximately five minutes later, a uniformed officer, defendant Torres, arrived in a police car and began talking with Canady. SUF 15. At this time, plaintiff walked across thestreet toward the officers. SUF 15. As plaintiff approached, Officer Torres said, "Hold on a minute," so plaintiff stopped and stood by the back of the Monte Carlo, then sat on the trunk of the car until Torres approached him. SUF 16; Buckhalter Dep. 71:14-19, 72:16-23. Torres recorded his interaction with plaintiff on his body camera, which was attached to his chest. SUF 17. Plaintiff admitted to Torres it was inappropriate to be doing burn outs on the street near the park and children, explained the car had balked, and the tires spun out and apologized. SUF 18-19; Buckhalter Dep. 72:24-73:7; Torres Decl. Ex. A (Body Camera Video of Incident), ECF No. 48, time stamp 0:00-0:25. Torres observed black tire tread marks on the roadway. SUF 20.

Officer Torres then told plaintiff he would issue him a citation for his reckless driving, and at that point plaintiff became very angry. SUF 21. Plaintiff told Torres he "was going to knock [Canady] out" after Torres finished issuing the citation. SUF 22; Buckhalter Dep. 73:8-74:11, 74:19-75:6. Plaintiff then said, while motioning toward Canady, "You're going to also have to arrest me, because I'm going to knock him out as soon as this is over. If you run my record, you know, I don't have no felonies, no warrants. I have a lot of assaults and he's going to get assaulted as soon as you leave." SUF 23; Torres Decl. ¶ 8 & Ex. B (Body Camera Video of Incident), ECF No. 48, time stamp 0:45-1:10. When Torres told plaintiff to sit on the curb, plaintiff became increasingly agitated, refused to comply and said, "Why should I have to sit on the curb?" SUF 24; Buckhalter Dep. 76:10-77:11; Torres Decl. ¶ 10 & Ex. B, time stamp 1:10-1:42. Torres twice asked plaintiff to sit on the curb before plaintiff complied. SUF 25-26.

In light of plaintiff's "aggressive and agitated behavior" and threats to physically assault Canady, and out of concern for officer safety, Officer Torres decided to place plaintiff in handcuffs. SUF 27; Torres Decl. ¶ 13. Torres ordered plaintiff to place his hands on top of his head, but plaintiff did not comply. SUF 28. After several orders, plaintiff placed his hands on his head, but then quickly removed them and brought them in front of his body before placing them on...