Smith v. Giovannini, 2:15-cv-1410 DB PS

WAYNE D. SMITH, Plaintiff, v. OFFICER JOHN GIOVANNINI, et al., Defendants.

No. 2:15-cv-1410 DB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 23, 2018

ORDER

This matter came before the court on December 22, 2017, for the hearing of defendant's motion for summary judgment. Plaintiff is proceeding on an amended complaint that alleges defendant Placer County Sheriff's Officer John Giovannini violated plaintiff's rights under the Fourth Amendment during a July 3, 2013 arrest. Plaintiff Wayne Smith appeared on his own behalf at the December 22, 2017 hearing. Attorney Gregory Warner appeared on behalf of the defendant.¹ (ECF No. 58.) After hearing oral argument, defendant's motion was taken under submission.

//// Having reviewed defendant's motion, the documents filed in support and opposition, and the arguments made at the December 22, 2017 hearing, defendant's motion for summary judgment will be granted with respect to defendant's investigatory stop and use of restraints but denied with respect to plaintiff's arrest, search, and defendant's use of physical force as explained below.

DEFENDANT'S STATEMENT OF UNDISPUTED FACTS

Defendant's statement of undisputed facts is supported by citation to a declaration provided by defendant Giovannini and to portions of plaintiff's deposition testimony. On July 3, 2013, defendant Giovannini was a Detective Sergeant with the Placer County Sheriff's Office. While in the course and scope of his duty that day, defendant drove his vehicle into a parking lot located at 8258 N. Lake Blvd, Kings Beach, CA, which is known as the "Falcon Lodge." Defendant was wearing a clearly marked Placer County Sheriff's Office raid vest with a badge on his chest. (Def.'s SUDF (ECF No. 44-2) 1-3.²)

Prior to July 3, 2013, defendant had learned that the Falcon Lodge had been condemned pursuant to Placer County Code. During the prior week, defendant observed "Notice to Vacate" signs posted at the Falcon Lodge pursuant to Placer County Code No. 15.56.140(D).³ On July 3, 2013, however, defendant observed that the posted Notice to Vacate signs had been removed and replaced with signs advertising parking at the Falcon Lodge for the July 4th holiday events. (Def.'s SUDF (ECF No. 44-2) 4-6.)

When defendant arrived at the Falcon Lodge, plaintiff exited a vehicle and approached the defendant. Plaintiff immediately raised his voice and demanded that defendant leave. Plaintiff further stated that "everything I say can and will be used against me" and that he was recordingthe defendant. Defendant then verbally identified himself, asked plaintiff multiple times to identify himself, and to state plaintiff's purpose for being at the Falcon Lodge. Plaintiff used his right index finger to poke defendant's left forearm four times. Defendant then asked plaintiff if he understood that defendant was a police officer to which he replied, "I know who you are." (Def.'s SUDF (ECF No. 44-2) 7-8.)

Defendant proceeded to drive into the parking lot. Plaintiff raised his voice and stated "don't go in there." Believing that plaintiff was going to physically confront him, defendant called for a patrol car response. Defendant parked his vehicle at the south end of the lot and exited his vehicle as plaintiff approached him. Defendant commanded plaintiff to come to him. Plaintiff responded by changing directions and attempted to walk into the crowd of people at the beach. Defendant then grabbed plaintiff's right arm and escorted him back into the parking lot just as Placer County Sheriff's deputies Robert Griggs and William Meguire arrived on the scene. (Def.'s SUDF (ECF No. 44-2) 9.)

Plaintiff admitted to living in the manager's unit at the Falcon Lodge. While at the Falcon Lodge, defendant saw that the door to the manager's unit was open, the lights were on, and the unit was clearly being lived in. Plaintiff admitted to having a key to the unit attached to his belt. Defendant took the key from plaintiff's belt and used it to lock the manager's unit. (Def.'s SUDF (ECF No. 44-2) 10.)

On July 3, 2013, defendant arrested plaintiff for burglary (Cal. Penal Code § 459) and possession of burglary tools (Cal. Penal Code § 459).⁴ Immediately after defendant arrested plaintiff, plaintiff was escorted to Deputy Meguire's vehicle for transport to the Placer County Sheriff's Office command post. Defendant observed Deputy Meguire use care in loading plaintiff into his vehicle including placing his hand on plaintiff's head in order to guide it under the

////doorframe. Defendant did not search plaintiff, including his pockets. (Def.'s SUDF (ECF No. 44-2) 11-12, 14.)

PLAINTIFF'S OPPOSITION

Plaintiff's opposition does not comply with Local Rule 260(b). That rule requires a party opposing summary judgment to (1) reproduce each fact enumerated in the moving party's statement of undisputed facts and (2) expressly admit or deny each fact. Under that provision the party opposing summary judgment is also required to cite evidence in support of each denial. Although it appears plaintiff has attempted to comply with the rule, plaintiff's opposition fails to comply in a clear manner and is quite difficult to read.

In the absence of the required admissions and denials, the court has reviewed plaintiff's filings in an effort to discern whether plaintiff denies any fact asserted in defendant's statement of undisputed facts and, if so, what evidence plaintiff has offered that may demonstrate the existence of a disputed issue of material fact with respect to any of his claims. The court will discuss plaintiff's relevant denials, if any, in analyzing defendant's motion for summary judgment.

PROCEDURAL BACKGROUND

Plaintiff commenced this action on July 2, 2015, by filing a complaint and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) On January 7, 2016, plaintiff's motion to proceed in forma pauperis was granted and plaintiff's complaint was dismissed with leave to amend. (ECF No. 7.) On February 10, 2016, plaintiff filed an amended complaint. (ECF No. 8.)

On April 15, 2016, the previously assigned Magistrate Judge issued an order.⁵ (ECF No. 9.) That order explained that, although plaintiff's amended complaint was "quite difficult to read and comprehend," it nonetheless stated "a cognizable claim for violation of the Fourth Amendment as to Officer Giovannini." (Id. at 2-3.⁶) Specifically, the order noted that the amended complaint alleged that on July 3, 2013, defendant Giovannini "physically restrained plaintiff without probable cause," "belly chained and handcuffed plaintiff," and "thrashedplaintiff's body around the parking lot while "rifling through plaintiff's pockets." (Id. at 3.) Accordingly, the order permitted service of process on defendant Giovannini. (Id. at 4.)

Defendant filed an answer to the amended complaint on September 28, 2016. (ECF No. 18.) On October 17, 2017, defendant filed the pending motion for summary judgment. (ECF No. 44.) Plaintiff filed an opposition on November 13, 2017.⁷ (ECF No. 48.) Defendant filed a reply on December 14, 2017. (ECF No. 57.)

LEGAL STANDARDS

I. Summary Judgment

Summary judgment is appropriate when the moving party "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). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of anelement essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809...