Tarantino v. City of Concord, Case No.: C-12-00579 JCS

RICHARD ANDREW TARANTINO, JR., Plaintiff,

v.CITY OF CONCORD, et al., Defendants.

Case No.: C-12-00579 JCS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: July 12, 2013

ORDER GRANTING DEFENDANTS'

MOTION FOR SUMMARY

JUDGMENT

I. INTRODUCTION

Plaintiff Richard Andrew Tarantino, Jr. ("Plaintiff") brought this action against the City of Concord, David Livingston individually and in his official capacity as the Chief of Police for the City of Concord, Murtazah Ghaznawi ("Ghaznawi") individually and in his official capacity as a police officer, Aaron Smith ("Smith") individually and in his official capacity as a police officer, Kevin Bollinger ("Bollinger") individually and in his official capacity as a police officer, and Carl Cruz ("Cruz") individually and in his official capacity as a police officer (collectively, "Defendants").¹ Plaintiff alleges (1) seven causes of action under 42 U.S.C. § 1983; (2) a cause of action under 42 U.S.C. § 1985; (3) a cause of action for intentional infliction of emotional distress; and (4) a cause of action for assault and battery. Each cause of action arises out of events that took place on February 6, 2008. Presently before the Court is Defendants' Motion for Summary Judgment or in the Alternative Partial Summary Judgment ("Motion"). The Court finds that the Motion is suitable for decision without oral argument. The hearing scheduled for on July 26, 2013 at 1:30 p.m. is vacated. As discussed below, the Motion is GRANTED.²

II. BACKGROUND

A. Factual Background

Plaintiff was arrested and charged with three misdemeanors arising out of a traffic stop on February 6, 2008. See Declaration of Joseph Surges in Support of Defendants' Motion for Summary Judgment ("Surges Declaration"), Ex. J. After a jury trial, he was found guilty of each charge on April 16, 2009. Id. He was sentenced on April 28, 2009. Id. At some point, Plaintiff appealed the conviction through appointed appellate counsel. Declaration of Plaintiff's Declaration in Support of Opposition to Defendants' Motion for Summary Judgment ("Tarantino Declaration"), ¶ 1. The conviction was affirmed on March 9, 2010. Id. Plaintiff was incarcerated in connection with the offense from April 28, 2009 through August 12, 2009. Declaration of Margaret Kotzebue in Support of Defendants' Motion for Summary Judgment ("Kotzebue Declaration"), Ex. G.

In connection with this civil action, Plaintiff filed a Notice of Claim against the City of Concord ("Notice of Claim") on August 5, 2008. Id. at Ex. A. The City of Concord mailed a Denial of Claim on September 10, 2008. Id. at Ex. B. In a separate incident, a City of Concord police officer executed a traffic stop on Plaintiff on or about March 24, 2009. Tarantino Declaration, ¶ 2. On or about June 28, 2009, Plaintiff was charged with evading a police officer in connection with that traffic stop. Id. at ¶ 3. On February 3, 2012, Plaintiff filed his Complaint in this action. See Dkt. No. 1. About three weeks later, on February 27, 2012, the charge for evading a police officer was dismissed. Tarantino Declaration, ¶ 5.

The parties dispute the circumstances of the arrest February 6, 2008 traffic stop and arrest. Plaintiff's account of the events is contained in the Notice of Claim. Kotezebue Declaration, Ex. A. There, Plaintiff states that Ghaznawi stopped him while traveling in his automobile without a warrant or probable cause although he had committed no crime. Id.; see also Declaration of Murtazah Ghaznawi in Support of Defendants' Motion for Summary Judgment ("Ghaznawi Declaration"), ¶ 3. After he was stopped Smith and Bollinger arrived on the scene. Kotezebue Declaration, Ex. A; see also Ghaznawi Declaration, ¶ 3. He contends that the officers rejected his legal documents and wedged them in his door jamb. Kotezebue Declaration, Ex. A. After Plaintiff asked the officers to call a supervisor to the scene, but before any supervisor arrived, Smith used his baton to break thewindow on the driver's side of Plaintiff's vehicle. Id. Ghaznawi immediately opened the driver's side door by reaching in through the broken window. Id. Once the door was open, all three officers goaded Plaintiff to exit the vehicle. Id. Plaintiff reluctantly exited with the arms in the air. Id. The officers told him to lie on the ground, but he was too frightened to comply. Id. As a result, Ghaznawi shot Plaintiff with a taser. Id. Plaintiff fell to one knee, at which point Smith rushed up and hit Plaintiff in the head with a baton. Id. Ghaznawi sent another round of voltage through the taser and Plaintiff fell to the ground. Id. After Plaintiff fell to the ground, he was hit a number of times and shot a third time with the taser. Id. The officers then taunted Plaintiff before realizing that Plaintiff was injured and calling an ambulance. Id.

Plaintiff was taken from the scene to a hospital. Id. While Plaintiff was in his hospital bed he "overheard the police officers in the hallway, trying to get their story straight." Id. Plaintiff was then read his Miranda rights and invoked his right to remain silent. Id. At some point thereafter, two of the officers transported Plaintiff to the Concord Police Department. Id. During the ride, the officers informed Plaintiff that they were going to book him at the Concord Jail and then transport him to the County Jail in Martinez where he would be held before being brought before a judge for assaulting police officers and resisting arrest. Id.

Ghaznawi, Smith, and Bollinger provide a contrasting version of the events. See Ghaznawi Declaration, ¶¶ 3-10; Declaration of Aaron Smith in Support of Defendants' Motion for Summary Judgment ("Smith Declaration"), ¶¶ 2-9; Declaration of Kevin Bollinger in Support of Defendants' Motion for Summary Judgment ("Bollinger Declaration"), ¶¶ 2-6. However, all accounts agree that the only time the officers applied force to plaintiff was in removing him from his vehicle and pinning him to the ground.

After a jury trial, the jury reached a verdict as follows:

We, the jury in this case, find the Defendant, Richard Tarantino, GUILTY of the crime of Assault on Peace Officer, a misdemeanor, to wit, a violation of Penal Code section 240/241(c), as set forth in Count One of the Complaint.

We, the jury in this case, find the Defendant, Richard Tarantino, GUILTY of the crime of Resist, Obstruct, or Delay a Peace Officer, a misdemeanor, to wit, a violation of Penal Code section 148(a)(1), as set forth in Count Two of the Complaint.

We, the jury in this case, find the Defendant, Richard Tarantino, GUILTY of the crime of Driving When Privilege Suspended or Revoked, a misdemeanor, to wit, a violation of Vehicle Code Section 14601.1(a) as set forth in Count Three of the Complaint.

Defendants' Request for Judicial Notice in Support of Defendants' Motion for Summary Judgment ("RJN"), Ex. I at 35.³

The instructions provided to the jury included the following instruction:

The People have the burden of proving beyond a reasonable doubt that Murtazah Ghaznawi and/or Aaron Smith was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of 240/241(c) PC assault on a peace officer and/or 148(a)(1) PC resisting, obstructing, or delaying a peace officer as charged in Counts 1 and 2, respectively.

A peace officer is not lawfully performing his duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

...

A peace officer may legally arrest someone if he has probable cause to make the arrest. Any other arrest is unlawful.

...

RJN, Ex. I at 8.

The jury also made the following special findings:

The Defendant initiated a physical altercation in the cab of the vehicle.

The Defendant continued his willfull antagonistic behavior by advancing in an aggressive manner towards the peace officers while they were performing their duties.

The Defendant did not act in self defense.

...

The Defendant did not comply with the officers reasonable requests.

RJN, Ex. I at 36.

B. The Complaint

Plaintiff alleged the following causes of action in his Complaint:

(1) Violation of the Fourth Amendment of the United State Constitution Brought Pursuant to 42 U.S.C. § 1983: Defendants' violated Plaintiff's right to be free from unreasonable seizures. Complaint, ¶ 53.

(2) Violation of the Fourth Amendment of the United States Constitution Brought Pursuant to 42 U.S.C. § 1983: Defendants violated Plaintiff's right to be free from unlawful detention when Defendant Officers detained Plaintiff without probable cause. Id. at ¶ 54.

(3) Violation of the Fourth Amendment of the United States Constitution Brought Pursuant to 42 U.S.C. § 1983: Defendants violated Plaintiff's right to be free from unlawful arrest when Defendant Officers arrested him without probable cause. Id. at ¶ 55.

(4) Violation of the Fourth Amendment of the United States Constitution Brought Pursuant to 42 U.S.C. § 1983: Defendants violated Plaintiff's right to be free from excessive force against him. Id. at ¶ 56.

(5) Deliberate Indifference to Plaintiff's Medical Care & Wellbeing in Violation of 42 U.S.C. § 1983: Defendants, acting under color of state law, deprived Plaintiff of immediate necessary medical care in violation of his rights under the Due Process Clause of the Fourteenth Amendment. Id. at ¶ 57. As a proximate result, Plaintiff suffered injuries and damages. Id. at ¶ 58.

(6) Conspiracy to Violate Plaintiff's Civil Rights in Violation of 42 U.S.C. § 1985: Defendants Ghaznawi, Smith, and Bollinger acted in concert and conspired to violate Plaintiff's rights to be free from unreasonable seizures and excessive force with "knowledge of the wrongs conspired to be done and committed" and the power to prevent or aid in preventing their commission. Id. at ¶¶ 60-61.

(7) Injury to Plaintiff in Violation of 42 U.S.C. § 1983: Defendants acted under color of...