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Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 1 of 11

DARRYL D. YORKEY (SBN 280351)


1 P.O. Box 9636
Berkeley, California 94709
2 Telephone: (510) 221-6874
Fax: (888) 491-5926
3 Email: dyorkey@gmail.com
4 ALAN BECK (SBN 276646)
2962 Harcourt Drive
5 San Diego, California 92123
Telephone: (619) 905-9105
6 Email: alan.alexander.beck@gmail.com
7 CATHERINE A. BEEKMAN (SBN 245605)
915 Trancas Street, Suite B
8 Napa, California 94558
Telephone: (707) 346-3060
9 Fax: (707) 561-6646
Email: cate@beekmancortes.com
10
Attorneys for Plaintiff Nick C. Buckhalter
11
12 IN THE UNITED STATES DISTRICT COURT
13 FOR THE EASTERN DISTRICT OF CALIFORNIA
14 NICK C. BUCKHALTER, ) Case No. 2:17-cv-02072-KJM-GGH
15 )
Plaintiff, ) PLAINTIFF NICK C. BUCKHALTER’S
16 ) OPPOSITION TO DEFENDANTS DANIEL
v. ) TORRES AND ROGER CANADY’S
17 ) MOTION FOR SUMMARY JUDGMENT,
18 DANIEL TORRES; et al. ) OR ALTERNATIVELY, PARTIAL
) SUMMARY JUDGMENT
19 Defendants. )
) Date: January 25, 2019
20 ) Time: 10:00 a.m.
) Location: Courtroom 3, 15th Floor
21 )
22 ) Judge: Hon. Kimberley J. Mueller
____________________________________)
23
24
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27

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFEDNANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 2 of 11

TABLE OF CONTENTS
1
2 I. INTRODUCTION ...................................................................................................................... 1
3
II. STATEMENT OF FACTS........................................................................................................ 1
4
5 III. CONCEDED ARGUMENTS .................................................................................................. 2

6 IV. ARGUMENT ........................................................................................................................... 2

7 A. Summary Judgment Is Not Appropriate In this Case with Respect to Defendant


Torres. ............................................................................................................................. 2
8
B. Defendant Torres is Not Entitled to Qualified Immunity. ............................................ 2
9
C. Sufficient Evidence Exists to Demonstrate that Defendants Violated the Fourteenth
10 Amendment. ................................................................................................................... 5
11 D. Sufficient Evidence Exists to Support Plaintiff’s Battery Claim. ................................. 6
12 E. Sufficient Evidence Exists to Support Plaintiff’s Claim For Violation of Civil Rights
Under Cal. Civ. Code §52.1............................................................................................ 6
13
F. Defendant Torres is Not Entitled to Discretionary Immunity ...................................... 6
14
15 V. CONCLUSION .......................................................................................................................... 8

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFEDNANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 3 of 11

1 TABLE OF AUTHORITIES
2
CASES
3
4 Alexander v. Cnty. of Los Angeles, 64 F.3d 1315 (9th Cir. 1995) ...................................................... 5

5 Austin B. v. Escondido Union Sch. Dist., 149 Cal.App.4th 860 (2007) .............................................. 6

6 Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010). ........................................................................ 3

7 Caldwell v. Montoya, 10 Cal.4th 972 (1995)..................................................................................... 7

8 Castro v. Cnty. of Los Angeles, 797 F.3d 654 (9th Cir. 2015) ........................................................... 5

9 Farmer v. Brennan, 511 U.S. 825 (1994).......................................................................................... 5

10 Franklin v. Foxworth, 31 F.3d at 873 (9th Cir. 1994) ....................................................................... 5

11 Hansen v. Black, 885 F.2d 642 (9th Cir. 1989) ............................................................................. 2, 4

12 Heitschmidt v. City of Houston, 161 F.3d at 834 (5th Cir. 1998) ....................................................... 5

13 J.E.L. v. San Francisco Unified Sch. Dist., 185 F. Supp. 3d 1196 (N.D. Cal. 2016). ......................... 7

14 Jones v. Kern High Sch. Dist., No. CV–F–07–1628 OWW/TAG,

15 2008 WL 3850802, at *28 (E.D.Cal. Aug. 14, 2008)............................................................. 7

16 Martinez v. Cty. of Sonoma, No. 15–CV–01953–JST,

17 2015 WL 5354071, at *10 (N.D.Cal. Sept. 14, 2015) ............................................................ 7

18 Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003) ......................................................................... 3, 5

19 Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993) .....................................................................2, 4, 5

20 Saucier v. Katz, 533 U.S. 194 (2001)................................................................................................ 4

21 Scruggs v. Haynes, 252 Cal. App. 2d 256 (1967) ............................................................................. 7

22 Sharp v. County of Orange, 871 F. 3d 901 (9th Cir. 2017). ............................................................... 6

23 Stoddard-Nunez v. City of Hayward, 2013 U.S. Dist. LEXIS 179969, *31, 2013 WL 6776189......... 7

24 Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004). ............................................................ 3, 4

25 STATUTES
26
Cal. Civ. Code §52.1 ........................................................................................................................ 6
27

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFEDNANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 4 of 11

1 I. INTRODUCTION
2 The central issue before this Court for consideration is whether Defendant Torres was
3 obligated to loosen Plaintiff Nick C. Buckhalter’s handcuffs once Defendant Torres was put on
4 notice that his handcuffing of Mr. Buckhalter was causing severe pain and potentially acute and
5 lasting injuries. Mr. Buckhalter put Defendant Torres on notice that the handcuffs were excessively
6 tight and hurting his wrists, but Defendant Torres nonetheless refused to loosen them. Furthermore,

7 Defendant Torres kept Mr. Buckhalter handcuffed for an unnecessarily long period of time after
8 being put on notice of the pain they caused Mr. Buckhalter. Circuit precedent holds this conduct to
9 be sufficient to constitute a violation of the Fourth Amendment and to overcome a claim of qualified
10 immunity.
11 II. STATEMENT OF FACTS
12 Plaintiff accepts Defendants’ statement of facts as set forth in their Motion for Summary
13 Judgment, with the addition of the following facts from Plaintiff Nick Buckhalter’s declaration.
14 Another officer, not a defendant, initially placed Mr. Buckhalter in Defendant Torres’s patrol
15 vehicle. (Declaration of Nick C. Buckhalter, “Buckhalter Decl.” ¶3.)_Mr. Buckhalter asked that
16 officer to loosen his handcuffs, and that officer replied that Defendant Torres would loosen the
17 handcuffs when they arrived at their destination. (Buckhalter Decl.” ¶3.) Defendant Torres began
18 driving Mr. Buckhalter toward the jail, but when Mr. Buckhalter asked to go to the hospital for his
19 shoulder injury, Defendant Torres instead took him to the hospital. (Buckhalter Decl.” ¶5.) On the
20 way to the hospital, Mr. Buckhalter told Defendant Torres the handcuffs were too tight and were
21 hurting his wrist, and asked Defendant Torres to loosen the handcuffs. (Buckhalter Decl.” ¶4.)
22 Defendant Torres looked at Mr. Buckhalter in his rearview mirror and did not respond verbally, nor
23 did he loosen Mr. Buckhalter’s handcuffs. (Buckhalter Decl.” ¶4.) At the hospital, a doctor asked
24 Defendant Torres to remove Mr. Buckhalter’s handcuffs so he could place Mr. Buckhalter’s arm in a
25 sling; Defendant Torres refused and said he could place the sling in Mr. Buckhalter’s property.
26 (Buckhalter Decl.” ¶5; Buckhalter Depo. 94:10-16.) After leaving the hospital, while sitting in
27 Defendant Torres’s patrol vehicle in a motel parking lot, Mr. Buckhalter again told Defendant Torres

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 5 of 11

1 the handcuffs were hurting his wrist and asked Defendant Torres to loosen the handcuffs.
2 (Buckhalter Decl.” ¶6.) Again Defendant Torres simply ignored Mr. Buckhalter by not responding
3 verbally nor loosening the handcuffs. (Buckhalter Decl.” ¶6.)
4 III. CONCEDED ARGUMENTS
5 Plaintiff concedes all claims against Defendant Canady, and the assault and IIED claims as to
6 both defendants.

7 IV. ARGUMENT
8 A. Summary Judgment Is Not Appropriate In this Case with Respect to Defendant Torres.
9 The Ninth Circuit has held in a number of cases that excessively tight handcuffing can
10 constitute excessive force. See, e.g., Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993); Hansen v.
11 Black, 885 F.2d 642 (9th Cir. 1989). The issue of excessively tight handcuffing is usually fact-
12 specific issue and is likely to turn on the credibility of the witnesses. LaLonde v. County of
13 Riverside, 204 F.3d 947, 960 (9th Cir. 2000). Ninth Circuit precedent is clear that cases alleging
14 excessively tight handcuffing should not typically be resolved by summary judgment.
15 Here, Mr. Buckhalter alleges Defendant Torres both handcuffed him too tightly after being
16 put on notice of the pain they caused Mr. Buckhalter’s wrist, and Defendant Torres kept the
17 handcuffs on Mr. Buckhalter for an unnecessarily long time after being put on such notice.
18 (Buckhalter Depo. 149:10-150:5, 151:19-23; Buckhalter Decl.” ¶¶4-6.) Defendant claims Mr.
19 Buckhalter was booked into the jail at 8:58 p.m. on September 9, 2016, (Torres Decl. ¶25-27), but
20 Mr. Buckhalter alleges he did not enter the jail until 12:07 a.m. on September 10, 2016. (Buckhalter
21 Depo. 97:3-9.) This 3-hour difference is a significant factual dispute that bears directly on the
22 reasonableness of the handcuffing. Given that credibility is typically central to the question of too-
23 tight handcuffing, and that there exists a material factual dispute in this case, this dispute should not
24 be resolved by way of summary judgment.
25 B. Defendant Torres is Not Entitled to Qualified Immunity.
26 To determine whether a law enforcement officer is entitled to summary judgment based on
27 qualified immunity, this Circuit considers, viewing the facts in the light most favorable to

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 6 of 11

1 nonmoving party: (1) whether the officer used excessive force in violation of the Fourth
2 Amendment; and (2) if so, whether the officer violated clearly established law. Bryan v.
3 MacPherson, 630 F.3d 805, 823 (9th Cir. 2010).
4 Here, viewing the facts in the light most favorable to Plaintiff Nick Buckhalter, Defendant
5 Torres violated Mr. Buckhalter’s Fourth and Fourteenth Amendment rights by refusing to loosen his
6 handcuffs after Mr. Buckhalter put Defendant Torres on notice that the handcuffs were excessively

7 tight, causing him acute pain and, now long-lasting, injuries; and by keeping Mr. Buckhalter
8 confined in too-tight handcuffs significantly longer than necessary. Mr. Buckhalter was first
9 handcuffed just before 5:11 p.m. when Mr. Buckhalter was placed in the rear of Defendant Torres’s
10 police vehicle. (Torres Decl. ¶25-27), and was not admitted to jail until 12:07 a.m. on September 10,
11 2016. (Buckhalter Depo. 97:3-9.) During these several hours, Mr. Buckhalter asked Defendant
12 Torres a number of times to loosen his handcuffs, telling Defendant Torres the handcuffs hurt his
13 wrists. (Buckhalter Depo. 149:10-150:5, 151:19-23; Buckhalter Decl.” ¶¶4-6.) As a direct result of
14 this unreasonably long and excessively tight handcuffing, Mr. Buckhalter now suffers from
15 numbness and limited use of his right hand. (Buckhalter Depo. 153:18-154:3, 154:13-20, 167:17-
16 168:5, 169:18-170:11.) Regardless of whether the initial handcuffing of Mr. Buckhalter was
17 permissible, Officer Torres’s unnecessarily tight handcuffing violated Mr. Buckhalter’s Fourth and
18 Fourteenth Amendment rights, as Ninth Circuit precedent has repeatedly instructed.
19 In Wall v. County of Orange, the Ninth Circuit found a violation of the Fourth and Fourteenth
20 Amendment when a law enforcement officer tackled the plaintiff from behind, twisting his right arm
21 behind his back, forced him face down into a patrol car, handcuffed him tightly, and then left him in
22 a police car for twenty minutes. 364 F.3d 1107, 1109-10 (9th Cir. 2004). Similarly, in Meredith v.
23 Erath, the Ninth Circuit found a violation of the Fourth Amendment occurred when a law
24 enforcement officer grabbed the plaintiff, threw her to the ground, placed her in handcuffs, refused
25 to loosen the handcuffs for 30 minutes despite complaints that they were excessively tight, and then
26 left the plaintiff handcuffed for several more hours. 342 F.3d 1057 (9th Cir. 2003). Similarly,
27 in Palmer v. Sanderson, the Ninth Circuit found a violation of the Fourth Amendment occurred

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 7 of 11

1 when a law enforcement officer jerked a 76-year-old man out of his car, pushed him against the
2 car, handcuffed him, and then pushed him into the back of the patrol car with such force that the
3 plaintiff fell over sideways. 9 F.3d 1433; See also Hansen v. Black, 885 F.2d 642, 645 (9th Cir.
4 1989) (finding excessive force where a witness testified to seeing the officer being "rough and
5 abusive" to the plaintiff while handcuffing her).
6 Mr. Buckhalter’s case is on all fours with Circuit precedent. Here, Defendant Torres first

7 refused to loosen Mr. Buckhalter’s handcuffs when he was driving Mr. Buckhalter to the hospital.
8 (Buckhalter Decl.” ¶4.) Defendant Torres then refused to remove Mr. Buckhalter’s handcuffs while
9 Mr. Buckhalter was being treated at the hospital, including when medical staff asked then to be
10 removed so they could place Mr. Buckhalter’s arm in a sling. (Buckhalter Depo. 94:1-3, 94:10-16;
11 Buckhalter Decl.” ¶5.) Defendant Torres told medical staff he would place the sling in Mr.
12 Buckhalter’s property, but after leaving the hospital – instead of taking Mr. Buckhalter straight to the
13 jail for booking – Defendant Torres drove Mr. Buckhalter around needlessly for several hours.
14 (Buckhalter Depo. 96:10-97:9, 149:24-151:3) The entire time he was being driven around, Mr.
15 Buckhalter was still handcuffed with his arms behind his back. (Buckhalter Depo. 96:10-16) During
16 this time, Mr. Buckhalter again asked Defendant Torres to loosen his handcuffs while complaining
17 of pain to his wrist, and again Defendant Torres refused to loosen the handcuffs. (Buckhalter Depo.
18 149:10-150:5, 151:19-23; Buckhalter Decl.” ¶6.) These facts demonstrate Defendant Torres used
19 excessive force in violation of the Fourth Amendment.
20 It is equally clear that Defendant Torres violated clearly established law. "The relevant,
21 dispositive inquiry in determining whether a right is clearly established is whether it would be clear
22 to a reasonable officer that his conduct was unlawful in the situation he confronted." Wall v. County
23 of Orange, 364 F.3d at 1111, citing Saucier v. Katz, 533 U.S. 194, 202 (2001).
24 Here, Circuit precedent put Defendant Torres on clear notice that his refusal to loosen Mr.
25
Buckhalter’s handcuffs violated Mr. Buckhalter’s Fourth Amendment rights. In Meredith v. Erath,
26
the Ninth Circuit found that law enforcement officer defendants were not entitled to qualified
27

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 8 of 11

immunity based on the plaintiff’s “allegation that she was kept in overly tight handcuffs that caused
1
2 her pain for the first 30 minutes of her detention…” 342 F.3d at 1063. The Court relied on a long

3 lineage of cases to make this determination:

4 In Franklin, we held that "a detention conducted in connection with a search may be
unreasonable it if is unnecessarily painful[.]" Franklin, 31 F.3d at 876. See
5
also Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) ("Sanderson [**15] has
6 presented no evidence that would justify handcuffing Palmer so tightly that he
suffered pain and bruises, or to justify his refusal to loosen the handcuffs after Palmer
7 complained of the pain."); Alexander, 64 F.3d at 1323 (denying qualified immunity to
police officers who kept the plaintiff in overly tight handcuffs for thirty-five to forty
8 minutes); Heitschmidt, 161 F.3d at 839-40 (denying qualified immunity to officers
who placed and kept the plaintiff in tight handcuffs for several hours). From these
9
authorities, a reasonable agent in Erath's position would have known, in July 1998,
10 that to place and keep Bybee in handcuffs that were so tight that they caused her
unnecessary pain violated her Fourth Amendment right to be free from an
11 unreasonable seizure. Palmer, 9 F.3d at 1436; Alexander, 64 F.3d at 1322-23. As we
stated in Palmer, "[u]nder these circumstances, no reasonable officer could believe
12 that the abusive application of handcuffs was constitutional." Palmer, 9 F.3d at
1436. Agent Erath is not entitled to qualified immunity as to Bybee's unlawful
13
detention claim founded upon her allegations of painful handcuffing during the first
14 30 minutes of her detention.

15 Meredith v. Erath, 342 F.3d at 1063-1064.

16 Mr. Buckhalter put Defendant Torres on notice that his handcuffs were causing him pain, and

17 yet Defendant Torres refused to remove or loosen the handcuffs from Mr. Buckhalter for hours.

18 For all of the reasons herein specified, Defendant Torres is not entitled to qualified immunity

19 for his actions complained about in this action.

20 C. Sufficient Evidence Exists to Demonstrate that Defendants Violated the Fourteenth


Amendment.
21
The standard for a failure-to-protect claim is deliberate indifference to a substantial risk of
22
serious harm. Castro v. Cnty. of Los Angeles, 797 F.3d 654, 665 (9th Cir. 2015). “[D]eliberate
23
indifference is equivalent to reckless disregard and describes a state of mind more blameworthy than
24
negligence, but is something less than acts or omissions for the very purpose of causing harm or with
25
knowledge that harm will result; subjective recklessness, as defined in the criminal law, is the
26
appropriate test for deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
27

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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 9 of 11

1 Here, Defendant Torres was put on actual notice that Mr. Buckhalter was in pain, and he
2 requested his handcuffs be loosened. Even if Defendant Torres’s decision to handcuff Mr.
3 Buckhalter initially was lawful, the manner in which the handcuffing occurred violated Mr.
4 Buckhalter’s Fourteenth Amendment rights in two ways. First, Defendant Torres failed to loosen the
5 handcuffs when Mr. Buckhalter put him on notice that the handcuffs were excessively tight and were
6 causing Mr. Buckhalter severe pain and injury. Second, Defendant Torres drove Mr. Buckhalter

7 around unnecessarily for hours after leaving the hospital while Mr. Buckhalter was handcuffed too
8 tightly and not wearing the sling medical staff prescribed for his injured shoulder.
9 D. Sufficient Evidence Exists to Support Plaintiff’s Battery Claim.
10 Because Defendant Torres’s handcuffing of Mr. Buckhalter was unreasonable, in violation of
11 Mr. Buckhalter’s Fourth Amendment rights, as argued above, the conduct also constitutes a battery
12 against Mr. Buckhalter.
13 E. Sufficient Evidence Exists to Support Plaintiff’s Claim For Violation of Civil Rights
Under Cal. Civ. Code §52.1
14
Defendants’ argument rests solely on their claim that their conduct did not violate Mr.
15
Buckhalter’s Fourth and Fourteenth Amendment rights. Cal. Civ. Code §52.1 proscribes that
16
interference or attempted interference by any person by threats, intimidation or coercion with rights
17
secured by the Constitution or laws of the United States. (§52.1(a); Austin B. v. Escondido Union
18
Sch. Dist., 149 Cal.App.4th 860, 883 (2007). As set forth above, plaintiff will be able to establish at
19
trial interference with his Fourth Amendment and Fourteenth Amendment rights, in a manner
20
contemplated and prohibited by Cal. Civ. Code §52.1 Accordingly, he will be able to establish a
21
violation of Section 52.1
22
F. Defendant Torres is Not Entitled to Discretionary Immunity
23
Discretionary immunity is a narrow protection, covering only “policy” decisions made by a
24
“coordinate branch [] of government,” not “operational decision[s] … purporting to apply the
25
law.” See Sharp v. County of Orange, 871 F. 3d 901, 920 (9th Cir. 2017).
26
The California Supreme Court has explained that this immunity applies narrowly
27
to “basic policy decisions” or “quasi-legislative policy making,” not to “lower-
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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 10 of 11

level, or ‘ministerial,’ decisions that merely implement a basic policy already


1 formulated.” Caldwell v. Montoya, 10 Cal.4th 972, 981, 42 Cal.Rptr.2d 842, 897
2 P.2d 1320 (1995) (internal quotations omitted). Accordingly, this section provides
no basis for blanket immunization of all of the specific and individual actions
3 undertaken in response to the bullying of plaintiff at the hands of another
student. See Jones v. Kern High Sch. Dist., No. CV–F–07–1628 OWW/TAG,
4 2008 WL 3850802, at *28 (E.D.Cal. Aug. 14, 2008) (denying blanket immunity
for acts relating to “the direct and immediate supervision of school children”); see
5
also Martinez v. Cty. of Sonoma, No. 15–CV–01953–JST, 2015 WL 5354071, at
6 *10 (N.D.Cal. Sept. 14, 2015) (denying motion to dismiss based on Section 820.2
discretionary immunity because the immunity is narrow and “can generally not be
7 resolved at a motion to dismiss”).

8 J.E.L. v. San Francisco Unified Sch. Dist., 185 F. Supp. 3d 1196, 1202 (N.D. Cal. 2016).
9
While Courts may have the authority to decide what tactics are appropriate for a law enforcement to
10
employ, there is no support for the proposition that officers have discretionary immunity to use
11
unreasonable force. In fact, case law holds to the contrary. “The Ne Casek decision supports
12
respondent's position that under the Act a police officer does not have discretionary immunity from
13
liability for the use of unreasonable force in making an arrest, and we share the conviction therein
14
expressed that a rule of law encouraging police brutality is opposed to sound public policy.” Scruggs
15
v. Haynes, 252 Cal. App. 2d 256, 267-268 (1967).
16
“[I]mmunity under section 820.2 turns on the reasonableness of the conduct complained of,
17
not simply whether or not a public employee exercised his or her discretion. Thus, Defendants'
18
argument that officers would always be immune from liability because shooting a suspect constitutes
19
a discretionary act, whether or not such discretion is abused, is untenable and inconsistent with
20
established law.” Stoddard-Nunez v. City of Hayward, 2013 U.S. Dist. LEXIS 179969, *31, 2013
21
WL 6776189.
22
As established above, Officer Torres’s excessively tight and excessively long handcuffing of
23
Mr. Buckhalter was unreasonable; thus discretionary immunity does not apply.
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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Case 2:17-cv-02072-KJM-AC Document 53 Filed 01/10/19 Page 11 of 11

1 V. CONCLUSION
2 For the foregoing reasons, except as conceded herein, this Court should deny Defendants’
3 Motion for Summary Judgment, or alternatively, Partial Summary Judgment.
4
5 Dated: January 10, 2019 Respectfully submitted,
6
/S/ Darryl D. Yorkey
By: ______________________________________________
7 Darryl D. Yorkey, Esq.
8 Attorney for Plaintiff Nick Buckhalter

9
/S/ Alan A. Beck (as approved on 1/10/19)
By: ______________________________________________
10 Alan A. Beck, Esq.
Attorney for Plaintiff Nick Buckhalter
11
12
/S/ Catherine A. Beekman (as approved on 1/10/19)
By: ______________________________________________
13 Catherine A. Beekman, Esq.
Attorney for Plaintiff Nick Buckhalter
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PLAINTIFF NICK C. BUCKHALTER’S OPPOSITION TO DEFENDANTS Case No. 2:17-cv-02072-KJM-GGH
DANIEL TORRES AND ROGER CANADY’S MOTON FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT