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Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 1 of 29

1 Richard W. Osman, State Bar No. 167993


Sheila D. Crawford, State Bar No. 278292
2 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
The Waterfront Building
3
2749 Hyde Street
4 San Francisco, California 94109
Telephone: (415) 353-0999
5 Facsimile: (415) 353-0990
Email: rosman@bfesf.com
6 scrawford@bfesf.com
7
Attorneys for Defendants
8 DANIEL TORRES and ROGER CANADY

9
UNITED STATES DISTRICT COURT
10
EASTERN DISTRICT OF CALIFORNIA
11
NICK C. BUCKHALTER Case No. 2:17-cv-02072-KJM-GGH
12

13 Plaintiff,

14 v.
Date: January 25, 2019
15 DANIEL TORRES, et al., Time: 10:00 am
Location: Courtroom 3, 15th Floor
16 Defendants.
17
Hon. Kimberley J. Mueller
18

19
20

21
DEFENDANTS DANIEL TORRES AND ROGER CANADY’S NOTICE OF
22 MOTION AND MOTION FOR SUMMARY JUDGMENT, OR
ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT (FRCP, RULE 56)
23

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT


Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 2 of 29

1 TABLE OF CONTENTS
2
NOTICE ...........................................................................................................................................1
3
MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
4
I. SUMMARY OF ARGUMENT AND STATEMENT OF ISSUES TO BE DECIDED .................1
5
II. STATEMENT OF FACTS ..............................................................................................................2
6
III. ARGUMENT ...................................................................................................................................7
7
A. Summary Judgment Is Proper In This Case .........................................................................7
8
B. The Officers’ Conduct Was Objectively Reasonable Under The Totality Of The
9 Circumstances And Plaintiff’s §1983 Claim For Violation Of The Fourth
Amendment Is Meritless Because ........................................................................................8
10
C. Plaintiff’s §1983 Claim For Violation Of The Fourteenth Amendment Is
11 Unsupported By Evidence .................................................................................................11

12 D. The Officers Are Entitled To Qualified Immunity From Plaintiffs’ §1983 Claims ..........13

13 E. Plaintiff’s Battery Claim Is Unsupported By Evidence .....................................................18

14 F. Plaintiff’s Assault Claim Is Meritless ................................................................................18

15 G. Plaintiffs’ Intentional Infliction Of Emotional Distress Claim Is Unsupported By


Evidence .............................................................................................................................19
16
H. Plaintiff’s Negligent Infliction Of Emotional Distress Claim Is Unsupported By
17 Evidence .............................................................................................................................19

18 I. Plaintiff’s Claim For Violation of Civil Rights Under Cal. Civ. Code §52.1 Is
Meritless .............................................................................................................................21
19
J. The Officers Are Entitled To Immunity Under Govt. Code §§ 820.2 and 820.8 ..............22
20
IV. CONCLUSION ..............................................................................................................................22
21

22

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 3 of 29

1 TABLE OF AUTHORITIES

2 Cases

3 Anderson v. Marin,
2012 WL 6697781 (E.D. Cal. 2012) .................................................................................................... 8
4
Aquino v. Superior Court
5 21 Cal.App.4th 847 (1993) ................................................................................................................ 19

6 Arres v. City of Fresno,


2011 WL284971 (E.D. Cal. 2011) ..................................................................................................... 21
7
Ashcraft v. King,
8 228 Cal.App.3d 604 (1991) ............................................................................................................... 18

9 Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ............................................................................................................... 13, 14, 15
10
Ashcroft v. Iqbal,
11 556 U.S. 662 (2009) ............................................................................................................................. 8
12 Austin B. v. Escondido Union Sch. Dist.,
149 Cal.App.4th 860 (2007) .............................................................................................................. 21
13
Barnes v. Ind. Auto. Dealers,
14 64 F.3d 1389 (9th Cir.1995) ............................................................................................................... 8
15 Barsamian v. City of Kingsburgh,
597. F.Supp.2d 1054 (E.D. Cal. 2009)............................................................................................... 21
16
Beard v. Banks,
17 548 U.S. 521 (2006) ............................................................................................................................. 7
18 Bias v. Moynihan,
508 F.3d 1212 (9th Cir. 2007) ............................................................................................................. 7
19
Bogard v. Emp’rs Cas. Co.,
20 164 Cal.App.3d 602 (1985) ............................................................................................................... 19
21 Brosseau v. Haugen,
543 U.S. 194 (2004) ..................................................................................................................... 13, 14
22
Brown v. Ransweiler,
23 171 Cal.App.4th 516 (Cal. Ct. App. 2009) ........................................................................................ 20
24 Cabesuela v. Browning-Ferris Indus.,
68 Cal.App.4th 101 (1998) ................................................................................................................ 21
25
Carmen v. San Francisco Unified Sch. Dist.,
26 237 F.3d 1026 (9th Cir. 2001) ............................................................................................................ 8
27 Castro v. Cnty. of Los Angeles,
833 F.3d 1060 (2016) ......................................................................................................................... 11
28

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 4 of 29

1 Celotex Corp. v. Catrett,


477 U.S. 317 (1996) ............................................................................................................................. 7
2
Christensen v. Superior Court,
3 54 Cal.3d 868 (1991) ......................................................................................................................... 19

4 City and County of San Francisco v. Sheehan,


135 S.Ct. 1765 (2015) ........................................................................................................................ 15
5
Corales v. Bennett,
6 567 F.3d 554 (9th Cir. 2009) ......................................................................................................... 8, 21

7 Daniels v. Williams,
474 U.S. 327 (1986) ............................................................................................................................. 8
8
Davidson v. City of Westminster,
9 32 Cal.3d 197 (1982) ......................................................................................................................... 19
10 Devereaux v. Abbey,
263 F.3d 1070 (9th Cir. 2001) ............................................................................................................. 7
11
Doerle v. Rutherford,
12 272 F.3d 1272 (9th Cir. 2001) ........................................................................................................... 16
13 Fisher v San Pedro Peninsula Hosp.,
214 Cal.App.3d 590 (1989) ............................................................................................................... 19
14
Graham v. Connor,
15 490 U.S. 386 (1989) ....................................................................................................................... 9, 10
16 Han v. City of Los Angeles,
2016 WL 2758241 (C.D. Cal. 2016)................................................................................................. 12
17
Harris v. Roderick,
18 126 F.3d 1189 (9th Cir. 1997) ........................................................................................................... 16
19 Hayes v. Cnty. of San Diego,
57 Cal.4th 622 (2013) ............................................................................................................ 20, 21, 22
20
Hernandez v. City of Pomona,
21 46 Cal.4th 501 (2009) .................................................................................................................. 20, 21
22 Homes v. Summer,
188 Cal.App.4th 1510 (2010) ............................................................................................................ 20
23
Huggins v. Longs Drug Stores California, Inc.,
24 6 Cal.4th 124 (1993) .......................................................................................................................... 23
25 Hunter v. Bryant,
502 U.S. 224 (1991) ........................................................................................................................... 13
26
J.L. v. Children’s Institute, Inc.,
27 177 Cal.App.4th 388 (2009) .............................................................................................................. 20
28 King v. State,
242 Cal.App.4th 265 (2015) .............................................................................................................. 22
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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 5 of 29

1 Kingsley v. Hendrickson,
135 S.Ct. 2466 (2015) ........................................................................................................................ 11
2
Kisela v. Hughes,
3 138 S.Ct. 1148 (2018) ...................................................................................................... 14, 15, 16, 17

4 Knapps v. City of Oakland,


647 F.Supp.2d 1129 (N.D. Cal. 2009) ............................................................................................... 18
5
Leer v. Murphy,
6 844 F.2d 628 (9th Cir. 1988) ................................................................................................................ 8

7 Lopez v. City of Los Angeles,


196 Cal.App.4th 675 (2011) .............................................................................................................. 20
8
Lowry v. Standard Oil Co. of Cal.
9 63 Cal.App.2d 1 (1944) ..................................................................................................................... 18
10 Maag v. Wessler,
960 F.2d 773 (9th Cir. 1991) ............................................................................................................. 13
11
Mattos v. Agarano,
12 661 F.3d 433 (9th Cir. 2011) ......................................................................................................... 9, 13
13 Meyers v. City of Fresno,
2011 WL 902115 (E.D. Cal. 2011) .................................................................................................... 21
14
Muehler v. Mena,
15 544 U.S. 93 (2005) ............................................................................................................................. 10
16 Mullenix v. Luna,
136 S.Ct. 305 (2015) .......................................................................................................................... 15
17
Ortega v. Sacramento Cnty. Dept. of Health and Human Servs.,
18 161 Cal.App.4th 713 (2008) .............................................................................................................. 22
19 Parratt v. Taylor,
451 U.S. 527 (1981) ............................................................................................................................. 8
20
Parsons v. Crown Disposal Co.,
21 15 Cal.4th 456 (1997) ........................................................................................................................ 20
22 Pearson v. Callahan,
555 U.S. 223 (2009) ....................................................................................................................... 8, 13
23
Plumhoff v. Rickard,
24 134 S.Ct. 2012 (2014) ................................................................................................................ 8, 9, 14
25 Potter v. Firestone Tire & Rubber Co.,
6 Cal.4th 965 (1993) .......................................................................................................................... 19
26
Reichle v. Howards,
27 132 S.Ct. 2088 (2012) ........................................................................................................................ 13
28 S. Cal. Gas Co. v. City of Santa Ana,
336 F.3d 885 (9th Cir. 2003) .............................................................................................................. 8
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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 6 of 29

1 Saman v. Robbins,
173 F.3d 1150 (9th Cir. 1999) ............................................................................................................. 9
2
Saucier v. Katz,
3 533 U.S. 194 (2001) ..................................................................................................................... 10, 13

4 Shoyoye v. Cnty. of Los Angeles,


203 Cal.App.4th 947 (2012) .............................................................................................................. 21
5
Smith v. City of Hemet,
6 394 F.3d 689 (9th Cir. 2005) ............................................................................................................... 9

7 So v. Shin
212 Cal.App.4th 652 (2013) .............................................................................................................. 18
8
Soremekun v. Thrifty Payless, Inc.,
9 509 F.3d 978 (9th Cir. 2007) ............................................................................................................... 8
10 Surrell v. California Water Serv. Co.,
518 F.3d 1097 (9th Cir. 2008) ............................................................................................................. 8
11
Tromblinson v. Nobile
12 103 Cal.App.2d 266 (1951) ............................................................................................................... 18
13 Venegas v. Cnty. of Los Angeles,
32 Cal.4th 820 (2004) ........................................................................................................................ 21
14
White v. Pauly,
15 137 S.Ct. 548 (2017) .................................................................................................................... 13, 14
16 White v. Roper,
901 F.2d 1501 (9th Cir. 1990) ........................................................................................................... 15
17
Wilson v. Meeks
18 52 F.3d 1547 (1995) ........................................................................................................................... 10
19 Winarto v. Toshiba America Electronics Components, Inc.
274 F.3d 1276 (2001) ......................................................................................................................... 21
20
Wong v. Tai Jing,
21 189 Cal.App.4th 1354 (2010) ............................................................................................................ 19
22 Statutes

23 California Civil Code, Section 52.1 ........................................................................................................... 4

24 California Civil Code, Section 52.1(a) .................................................................................................... 24

25 California Civil Code, Section 52.1(j) ..................................................................................................... 25

26 Government Code, Section 820.2 .............................................................................................................. 4

27 Government Code, Section 820.8 .................................................................................................. 4, 24, 25

28 Penal Code, Section 835(a) ...................................................................................................................... 21

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 7 of 29

1 Other Authorities

2 Legislative Committee Comment to Section 820.2 ................................................................................. 25

3 Rules

4 Federal Rules of Civil Procedure 56(e) ................................................................................................... 11

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10

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13

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15

16

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 8 of 29

1 NOTICE

2 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on

3 January 25, 2019, at 10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 3 of the

4 above-entiled Court, located at 501 I Street, Sacaramento, California, defendants DANIEL TORRES and

5 ROGER CANADY will and hereby do move this Court pursuant to FRCP Rule 56 for summary

6 judgment, or partial summary judgment. Summary judgment is warranted because the uncontroverted

7 evidence establishes that: (1) defendants’ conduct was objectively reasonable and did not violate

8 plaintiff’s Fourth Amendment rights; (2) defendants’ conduct was objectively reasonable and did not

9 violate plaintiff’s Fourteenth Amendment rights; (3) defendants are entitled to qualified immunity; (3)
10 plaintiff’s state law causes of action for battery, assault intentional infliction of emotional distress,
11 negligent infliction of emotional distress, and violation of Civil Code §52.1 are unsupportable; and (4)
12 defendants are entitled to immunity from plaintiff’s state law claims under Govt. Code §§820.2 and
13 820.8
14 Pursuant to the Court’s standing orders, defendants’ counsel met and conferred with plaintiff’s
15 counsel by telephone on December 18, 2018 to discuss the grounds for defendants’ motion for summary
16 judgment. Plaintiff’s counsel declined to dismiss any of plaintiff’s claims.
17 MEMORANDUM OF POINTS AND AUTHORITIES

18 I. SUMMARY OF ARGUMENT AND STATEMENT OF ISSUES TO BE DECIDED

19 Plaintiff NICK BUCKHALTER has no evidence to support his §1983 claims for excessive force
20 or failure to protect, or any of his state law claims against defendants arising out of his arrest on

21 September 9, 2016. The uncontroverted evidence establishes that plaintiff became angry and agitated

22 when he was informed he would be cited for unlawful exhibition of speed and dangerous driving, and

23 that he threatened off-duty police Officer Canady and explicitly told Officer Torres directly that if Torres

24 did not arrest him he intended to physically assault Canady and “knock him out” as soon as Torres left

25 the scene. The undisputed evidence further establishes that as a result of plaintiff’s aggressive behavior

26 and violent threats, Torres decided to handcuff plaintiff for officer safety reasons, and plaintiff admits he

27 physically resisted, struggled and pulled his arm away from Torres to avoid being handcuffed. The

28 undisputed evidence also establishes that the only force used by Torres was in bringing plaintiff’s hands

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 9 of 29

1 behind his back to handcuff him, and the only force used by Canady was in grabbing plaintiff as he

2 struggled on the ground with Torres and using the pressure of his knee in plaintiff’s side to move him so

3 that Torres could secure the handcuffs on plaintiff’s wrist. The force used thus was objectively

4 reasonable under the totality of the circumstances. Additionally, Canady had no further involvement with

5 plaintiff’s detention, and Torres’ use of handcuffs to detain plaintiff until he was booked into jail was not

6 unreasonably prolonged or improper, particularly in light of the fact that plaintiff had threatened to

7 physically assault and “knock out” Canady. The officers are entitled to qualified immunity from

8 plaintiffs’ §1983 claims and they are immune from liability from plaintiff’s state law claims. Summary

9 judgment, or alternatively, partial summary judgment, should be granted in favor of defendants and
10 against plaintiff.
11 II. STATEMENT OF FACTS
12 On September 9, 2016, plaintiff NICK BUCKHALTER and his wife were moving from their
13 home at 296 Madison Avenue in Vacaville, California to Georgia. (Deposition of Nick Buckhalter,
14 “Buckhalter Depo.” 10:1-7, 11:11-16; Deposition of Regina Buckhalter, “Regina Depo.” 22:16-23:2.) A
15 large 40-48 foot moving truck was parked on the street in front of plaintiff’s home. (Buckhalter Depo.
16 57:12-22, 58:7-9.) Plaintiff owned numerous vehicles and had moved six of his cars out of the garage and
17 parked them on the street near the park located across the street from his residence to allow the movers to
18 pack and load the moving truck. (Buckhalter Depo. 56:21-57:22, 58:15-59:9, 60:25-61:12.) Plaintiff
19 parked his Chevrolet Monte Carlo on the street, across from his residence, and three or four houses down
20 from his house. (Buckhalter Depo. 61:13-62:1; Regina Depo. 25:22-26:2.) A large vehicle transport truck
21 arrived at approximately 3:00 p.m. to move some of plaintiff’s cars to Georgia and it parked across the
22 street from plaintiff’s home. (Buckhalter Depo. 57:23-58:6, 60:12-24; Regina Depo. 23:3-7.)
23 At approximately 5:00 p.m., plaintiff went to move the Monte Carlo to the vehicle transport truck
24 to be loaded into the truck. (Buckhalter Depo. 62:2-7, 63:1-18; Regina Depo. 23:22-24:3.) Plaintiff got
25 into the Monte Carlo, started the car and put it in drive to pull out. The car “balked,” and instead of
26 stopping, plaintiff “mashed” on the gas to prevent it from stalling. The car made a screeching noise, the
27 tires spun or “jerked” and the tires left rubber marks on the pavement. (Buckhalter Depo. 64:22-65:17,
28 67:7-16, 72:14-15; Regina Depo. 26:11-17.) Off-duty Vacaville police officer Roger Canady was at the

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 10 of 29

1 park with his young child and he observed plaintiff driving the Monte Carlo and appear to do a “burn

2 out” on the street while children were on the adjacent sidewalk and in the adjacent park in violation of

3 California Vehicle Code §23109, speed contests and exhibitions of speed. (Declaration of Roger Canady,

4 “Canady Decl.” ¶¶2-6.) Plaintiff parked the Monte Carlo behind the transport truck for loading.

5 (Buckhalter Depo. 63:15-18, 65:66:12-67:3, 67:17-68:3; Regina Depo. 28:4-6.) When plaintiff exited his

6 vehicle, Canady told plaintiff that the manner he drove the Monte Carlo was unlawful and irresponsible,

7 and he advised plaintiff that he faced being arrested for violation of section 23109. (Canady Decl. ¶8,

8 Buckhalter Depo. 64:22-65:8, 69:9-19.) Plaintiff walked towards Canady, and Canady told plaintiff he

9 was an off-duty police officer, there were kids and other people nearby and he could not be driving the
10 way he was. (Buckhalter Depo. 68:4-69:3, 69:9-19.) Plaintiff did not believe Canady was an off-duty
11 police officer. (Buckhalter Depo. 69:9-12.) He apologized and said Canady did not have to worry about
12 him anymore and he turned and walked back across the street. (Buckhalter Depo. 68:19-69:3, 69:20-22.)
13 A few minutes later, while Canady was seated at the park he believed plaintiff yelled, “I’ll be
14 back!” but he did not know if this was intended as a threat towards him. Canady called the Vacaville
15 Police Department and requested a uniformed officer to come to the scene and arrest plaintiff for
16 violating Vehicle Code §23109. (Canady Decl. ¶10; Buckhalter Depo. 71:25-72:13.)
17 Approximately five minutes later a police car pulled up and parked, and a uniformed officer,
18 defendant Torres, exited and walked up to Canady and started talking to him. Plaintiff assumed they were
19 talking about him so he went across the street towards the officers. (Buckhalter Depo. 70:1-17, 71:2-13;
20 74:12-16.) As plaintiff approached, Torres said “Hold on a minute,” so plaintiff stopped and stood by the
21 back of the Monte Carlo, and then sat on the trunk of the car until Torres came to talk to him. (Buckhalter
22 Depo. 71:14-19, 72:16-23.) Torres recorded his interaction with plaintiff on his body worn camera that
23 was firmly attached to his chest with a clip. (Torres Decl. ¶6.) Plaintiff admitted to Torres that it was
24 inappropriate to be doing burn outs down the street in close proximity to the park and children. (Video of
25 incident attached to Torres Decl. Exh. A, time 0.00 to 0:25.) Plaintiff told Torres that the car had balked
26 and the tires spun out, and he apologized for the tires spinning and jerking. (Buckhalter Depo. 72:24-
27 73:7.) Torres observed black tire tread marks on the roadway. (Torres Decl. ¶5.)
28 Torres told plaintiff he was going to issue him a citation for his reckless driving, and plaintiff

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 11 of 29

1 became very angry. (Torres Decl. ¶8.; Buckhalter Depo. 73:8-10.) Plaintiff told Torres that when he was

2 done issuing the citation he was going to go over to Canady and he “was going to knock him out.”

3 (Buckhalter Depo. 73:8-74:11, 74:19-75:6.) Plaintiff then stated, “You’re going to also have to arrest me,

4 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

5 no felonies, no warrants. I have a lot of assaults and he’s going to get assaulted as soon as you leave.”

6 Plaintiff motioned towards Canady as he made these statements. (Torres Decl. ¶8; Video of incident

7 attached to Torres Decl. Exh.B, time 0:45 – 1:10; Buckhalter Depo. 74:19-75:14.)

8 Torres told plaintiff to sit on the curb, but plaintiff became increasingly agitated, refused and said

9 “Why should I have to sit on the curb?” Plaintiff said he was 60 years old, and said he was sitting on the
10 car talking to him. (Buckhalter Depo. 76:10-77:11; Torres Decl. ¶10; Video of incident attached to
11 Torres Decl. Exh. B, time 1:10 – 1:42.) Torres twice asked plaintiff to sit on the curb before plaintiff
12 finally complied. (Buckhalter Depo. 77:9-11, 143:24-144:3.) Plaintiff got off the trunk of the Monte
13 Carlo and sat on the curb. (Buckhalter Depo. 79:4-8; Video of incident attached to Torres Decl. Exh. B,
14 time 1:48-2:11.) Because of plaintiff’s aggressive and agitated behavior and his threats to physically
15 attack and “knock out” Canady, Torres decided to place him in handcuffs due to concerns for his own
16 safety and the safety of Canady. (Torres Decl. ¶13.) Torres ordered plaintiff to place his hands on top of
17 his head but he did not comply. Plaintiff finally placed his hands on his head after several orders. He then
18 quickly removed both his hands from the top of his head and brought them in front of his body, then
19 placed them on top of his head again. (Torres Decl. ¶14-15; Buckhalter Depo. 79:12-17, 144:4-9; Video
20 of incident attached to Torres Decl. Exh. B, time 2:11-2:21.)
21 Torres placed one handcuff on plaintiff’s right wrist while his hands were on top of his head and
22 proceeded to pull his arms behind his back to secure his left wrist behind his back. (Torres Decl. ¶16;
23 Video of incident attached to Torres Decl. Exh. B, time 2:21-2:33; Buckhalter Depo. 82:4-16, 83:3-5,
24 144:10-14.) Plaintiff said “I got a rotator cuff, you see my shoulder,” and he aggressively pulled his left
25 hand out of Torres’s grip and towards the front of his body. (Torres Decl. ¶16; Video of incident attached
26 to Torres Decl. Exh. B, time 2:27-2:33; Canady Decl. ¶16-17; Buckhalter Depo. 79:23-25, 80:6-10,
27 81:12-23, 83:21-84:11, 144:22-145:7.) Plaintiff’s movement of pulling his arm from Torres’ grip caused
28 the body worn camera to fly off of Torres’ body and onto the ground, which caused the video to stop

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 12 of 29

1 recording. (Torres Decl. ¶17; Buckhalter Depo. 80:23-81:6.) Plaintiff admits he tried to hold his arms

2 stiff so Torres could not pull his arms behind his body, and he was pulling his left arm towards his body

3 “the whole time” to avoid being handcuffed. (Buckhalter Depo. 145:8-146:14; Regina Depo. 40:8-15,

4 41:19-22.) Plaintiff’s wife yelled from across the street that he had rotator cuff issues and could not pull

5 his arm behind his back while plaintiff was on the ground. (Buckhalter Depo. 86:10-21, 87:13-20.)

6 Canady observed the interaction between plaintiff and Torres and it appeared to him that plaintiff

7 was agitated and arguing with Torres. (Canady Decl. ¶12-15.) Canady observed numerous individuals

8 associated with plaintiff walking towards Torres and plaintiff’s location, and Canady was concerned for

9 Torres’ safety because of plaintiff’s aggressive resistance and the group of people moving towards Torres
10 and plaintiff. (Canady Decl. ¶19 ) Based upon the escalating situation and plaintiff’s physical resistance,
11 Canady determined it necessary to assist Torres in securing plaintiff in handcuffs. (Canady Decl.¶20)
12 Canady approached Torres and plaintiff as they struggled on the ground. Canady used his right knee to
13 lean on plaintiff’s left side to roll him on to his stomach so Torres could handcuff plaintiff’s left wrist.
14 (Canady Decl. ¶20; Buckhalter Depo. 84:25-85:13, 148:1-16.) Plaintiff claims Torres told Canady to
15 leave, and Canady then moved away from the area and left the scene. (Canady Decl. ¶21; Buckhalter
16 Depo. 85:14-86:9.) Canady used no other force and had no other involvement in plaintiff’s arrest.
17 (Canady Decl. ¶20-22; Buckhalter Depo. 86:5-9, 147:15-148:9.) The only force Torres used during the
18 incident was bringing plaintiff’s hands behind his back to secure him in handcuffs. (Buckhalter Depo.
19 147:15-22, 148:17-20; Regina Depo. 87:2-17.)
20 Prior to securing plaintiff in handcuffs, Torres did not observe plaintiff exhibit any mobility
21 limitations, including mobility limitations with his left shoulder. (Torres Decl. ¶21.) Rather, during
22 Torres’ investigation, plaintiff reached behind his back with his left hand to retrieve his wallet from his
23 left rear pocket (Video of incident attached to Torres Decl. Exh. A, time 0:30-0:33, 0:47-0:57), raised his
24 left hand above his head to wave at passerbys and to point at someone across the street (Video of incident
25 attached to Torres Decl. Exh. A, time 1:07-1:11; Exhibit B, time 0:13-0:15 and 1:22-1:24), used both
26 hands to brace himself as he hopped onto the trunk of his vehicle and supported his body weight (Video
27 of incident attached to Torres Decl. Exh. B, time 1:41-1:44) and never exhibited any pain or difficulty.
28 Once plaintiff’s hands were cuffed behind his back Torres lifted him up to place him in a police

5
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 13 of 29

1 car. (Buckhalter Depo. 83:14-20, 84:18-24. ) Due to plaintiff’s claimed previous shoulder surgery, Torres

2 placed plaintiff in two sets of handcuffs 1 prior to securing him the back of his patrol vehicle. Per Torres’

3 custom and practice, he checked the handcuffs on plaintiff’s wrists for tightness and ensured each cuff

4 was tight enough so it could not be slipped, but not too tight to affect plaintiff’s circulation. Torres

5 double locked each handcuff on Buckhalter’s wrists to ensure the cuffs would not inadvertently become

6 tighter. (Torres Decl. ¶23.) Torres determined it necessary to secure plaintiff’s hands behind his back,

7 rather than in front of his body, because of his aggressive and violent behavior, including his threats to

8 assault and “knock out” a police officer and his active resistance when Torres attempted to handcuff him.

9 (Torres Decl. ¶24.) Based upon Torres’ training and experience, an aggressive, resistive and/or assaultive
10 suspect is more able to assault or cause injury to officers and/or other persons when their hands are
11 handcuffed in front of their bodies as opposed to behind their back. Torres therefore determined it was
12 unsafe to handcuff plaintiff in front of his body. (Torres Decl. ¶24.)
13 After plaintiff was secured in the police vehicle he told Torres his shoulder was hurting.
14 (Buckhalter Depo. 91:6-23.) Plaintiff did not tell anyone other than Torres about his shoulder or that he
15 was feeling pain. (Buckhalter Depo. 91:24-92:2.) Torres then took plaintiff to the hospital to be examined
16 within 15 minutes of leaving plaintiff’s residence. X-rays were taken and a doctor reported that plaintiff’s
17 shoulder looked okay and was just inflamed. Plaintiff claims the doctor suggested putting his arm in a
18 sling but Torres would not remove the handcuffs and said they would take the sling with plaintiff’s
19 property. (Buckhalter Depo. 92:23-93:6, 94:9-16.) Due to plaintiff’s agitated state, active resistance at the
20 scene, his threats to assault and “knock out” a police officer and his self-reported history of “a lot of
21 assaults,” Torres determined it necessary to keep plaintiff secured in handcuffs behind his back while at
22 the hospital to avoid any violent attacks against hospital personnel and/or himself and to avoid further
23 resistance from platiniff. (Torres Decl. ¶26.) Plaintiff was given an injection in his left shoulder, which
24
1
25 Plaintiff produced a video evidencing that plaintiff was secured in two sets of handcuffs. This shows
Torres’ efforts to accommodate plaintiff’s claimed previous shoulder surgery. During his deposition,
26 plaintiff testified he was secured in one set of handcuffs, which testimony is clearly false or mistaken,
given that video evidence contradicts plaintiff’s testimony. For purposes of this motion, defendants rely
27 only on plaintiff’s version of the facts with respect to how many sets of handcuffs were used in order to
avoid potentially creating a disputed issue of material fact, Plaintiff produced the video depicting two
28 sets of handcuffs with his Initial Disclosures and it is attached as Exhibit C to the Declaration of Sheila
Crawford.
6
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 14 of 29

1 gave him pain relief an hour-and-a-half to two hours after the injection. (Buckhalter Depo. 94:17-19,

2 95:12-16.)

3 Plaintiff claims that he was not taken directly to jail from the hospital and Torres responded to

4 other service calls, picking up other suspects in unrelated incidents, and transporting them to jail with

5 plaintiff. (Buckhalter Depo. 96:1-21.) Torres kept Mr. Buckhalter secured in handcuffs behind his back

6 during transport from the hospital to the jail due to his aggressive, threatening and resistive behavior and

7 his self-reported history of “a lot of assaults.” (Torres Decl. ¶27.) Plaintiff claims he twice asked Torres

8 to loosen the handcuffs, but Torres said no, he would be in lockup soon, but another two hours elapsed

9 before he was booked into jail. (Buckhalter Depo. 149:10-150:5, 151:19-23.) He claims he was booked
10 into jail at approximately 12:07 a.m. on September 10, 2016. (Buckhalter Depo. 97:3-9.) The CAD report
11 of the incident shows that plaintiff was secured in the back of the police vehicle at 5:11 p.m. and and
12 arrived at the hospital within a half-hour at 5:37 p.m., and he arrived at the Solano County Jail at 8:58
13 p.m. after being medically cleared. (Torres Decl. ¶25-27 and Exhibit C attached to the Declaration of
14 Daniel Torres.) Plaintiff was released from jail several hours later at approximately 4:00 a.m. on
15 September 10th. (Buckhalter Depo. 128:18-20; Regina Depo. 47:4-7.)
16 III. ARGUMENT

17 A. Summary Judgment Is Proper In This Case

18 “The party moving for summary judgment bears the initial burden of demonstrating the absence

19 of a genuine issue of fact for trial. …When the nonmoving party has the burden of proof at trial, the
20 moving party need only point out “that there is an absence of evidence to support the nonmoving party’s

21 case.’” (Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).) “Once the moving party carries its

22 initial burden, the adverse party … must provide affidavits or other sources of evidence that ‘set forth

23 specific facts showing that there is a genuine issue for trial.” (Id., FRCP Rule 56(e) and Celotex Corp. v.

24 Catrett, 477 U.S. 317, 323-324 (1996).) To avoid summary judgment, the opposing party is “required to

25 present ‘significant probative evidence tending to support’ her allegations.” (Bias v. Moynihan, 508 F.3d

26 1212, 1218 (9th Cir. 2007).) If the moving party’s statement of facts is not controverted in this manner, a

27 court may assume that the facts as claimed by the moving party are admitted to exist without

28 controversy. (Beard v. Banks, 548 U.S. 521, 527, 534 (2006).) “There must be enough doubt for a

7
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 15 of 29

1 ‘reasonable trier of fact’ to find for the plaintiffs in order to defeat the summary judgment motion.”

2 (Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009).) Mere allegation, speculation and conclusory

3 statements without factual support are not enough to defeat a motion for summary judgment. (Surrell v.

4 California Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008); Soremekun v. Thrifty Payless, Inc., 509

5 F.3d 978, 984 (9th Cir. 2007).) The Court “is not required to comb through the record to find some

6 reason to deny a motion for summary judgment.” (Carmen v. San Francisco Unified Sch. Dist., 237 F.3d

7 1026, 1029 (9th Cir. 2001); S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).)

8 Statements in a brief, unsupported by the record, cannot be used to create an issue of fact. (Barnes v. Ind.

9 Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir.1995); Anderson v. Marin, 2012 WL 6697781 (E.D. Cal.
10 2012).) The undisputed evidence in this case establishes that plaintiff has no evidence showing a genuine
11 issue for trial, and summary judgment should be granted in defendants’ favor.
12 B. The Officers’ Conduct Was Objectively Reasonable Under The Totality Of The
Circumstances And Plaintiff’s §1983 Claim For Violation Of The Fourth Amendment Is
13 Meritless Because
14 Section 1983 requires plaintiffs to show “(1) that a person acting under color of state law
15 committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or
16 immunity protected by the Constitution or laws of the United States.” (Leer v. Murphy, 844 F.2d 628,
17 632-633 (9th Cir. 1988), citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds,
18 Daniels v. Williams, 474 U.S. 327, 328 (1986).) The plaintiff must also show that the defendant’s

19 unconstitutional conduct was the actual and proximate cause of the plaintiff’s injuries. (White v. Roper,
20 901 F.2d 1501, 1501-1506 (9th Cir. 1990); Pearson v. Callahan, 555 U.S. 223, 231 (2009).) Vicarious

21 liability is inapplicable in § 1983 actions, and plaintiff must show that each defendant, through their own

22 individual actions, violated the constitution. (Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Leer v.

23 Murphy, 844 F.2d 628, 633 (9th Cir. 1988).)

24 “A claim that law-enforcement officers used excessive force to effect a seizure is governed by the

25 Fourth Amendment's ‘reasonableness’ standard. (See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865,

26 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).”

27 (Plumhoff v. Rickard, 134 S.Ct. 2012, 2020 (2014).) “In Graham, [the Supreme Court] held that

28 determining the objective reasonableness of a particular seizure under the Fourth Amendment ‘requires a

8
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 16 of 29

1 careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment

2 interests against the countervailing governmental interests at stake.’ 490 U.S., at 396, 109 S.Ct. 1865

3 (internal quotation marks omitted). The inquiry requires analyzing the totality of the circumstances.” (Id.)

4 The totality of circumstances to be considered in determining whether an officer’s use of force was

5 reasonable include “the severity of the crime at issue, whether the suspect poses an immediate threat to

6 the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest

7 by flight.” (Graham, 490 U.S. at 396.) “Ultimately, the ‘most important’ Graham factor is whether the

8 suspect posed an ‘immediate threat to the safety of the officers or others.’” (Mattos v. Agarano, 661 F.3d

9 433, 441 (9th Cir. 2011), citing Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005).) “The
10 reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on
11 the scene, rather than with the 20/20 vision of hindsight. … The calculus of reasonableness must [allow]
12 for the fact that police officers are often forced to make split-second judgments—in circumstances that
13 are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
14 situation.” (Graham, 490 U.S. at 396-397; Saman v. Robbins, 173 F.3d 1150 (9th Cir. 1999); Plumhoff,
15 134 S.Ct. at 2020.) The officers conduct in this case was objectively reasonable under the totality of the
16 circumstances known to them at the time.
17 The undisputed evidence establishes that plaintiff exhibited dangerous and aggressive behavior in
18 driving his car, screeching the tires in close proximity to a park and children and pedestrians on the
19 sidewalk. Plaintiff became angry and agitated when informed he would be cited for the dangerous
20 behavior, and he admittedly threatened to physically assault Canady stating he would “knock him out.”
21 He admittedly told Torres that he intended to assault Canady and that he would physically attack Canady
22 as soon as Torres left if Torres did not arrest him. Plaintiff further admits that he disobeyed Torres’
23 repeated orders to sit on the curb and to put his hands on top of his head. Based on plaintiff’s unlawful,
24 aggressive, threatening and hostile behavior, Torres decided to handcuff plaintiff due to officer safey
25 concerns. Plaintiff admits that in response to Torres’ efforts to handcuff him he tensed his arms to avoid
26 being handcuffed, and pulled his left arm away throughout the physical struggle as Torres tried to secure
27 him in handcuffs, until he finally pulled his arm away with such force that it knocked Torres’ body worn
28 camera off of his body. Canady saw Torres struggling to handcuff plaintiff and he saw numerous

9
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 17 of 29

1 individuals associated with plaintiff approaching and he was concerned for Torres safety. Canady ran

2 over to assist, using his knee to put pressure on plaintiff on the left side to help control him on the ground

3 so he could be handcuffed. “Fourth Amendment jurisprudence has long recognized that the right to make

4 an … investigatory stop necessarily carries with it the right to use some degree of physical coercion or

5 threat thereof to effect it.” (Graham, 490 U.S. at 396; Muehler v. Mena, 544 U.S. 93, 99 (2005).) “Not

6 every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers … violates

7 the Fourth Amendment.” (Graham, 490 U.S. at 397.) Under the totality of the undisputed circumstances,

8 the officers’ conduct in securing plaintiff in handcuffs was objectively reasonable.

9 Plaintiff’s statements that he had had shoulder surgery and could not move his arm behind his
10 back do not render the officers’ conduct unreasonable. The situation was rapidly evolving, plaintiff was
11 physically resisting and hostile and his claimed prior injury did not make him less dangerous or diminish
12 the threat known to the officers at the time. There is no evidence that Canady even was aware of
13 plaintiff’s statement to Torres about his shoulder, and the officers had no information whether plaintiff’s
14 claim was truthful or a ploy to avoid being cuffed, and they were not required to accept plaintiff’s
15 statements at face value. Indeed, the video recording of the incident shows plaintiff moving his body and
16 left arm and shoulder without limitation or hesitation before Torres attempted to handcuff him, and the
17 totality of circumstances known to the officers before they proceeded to handcuff plaintiff did not
18 suggest that he had any shoulder limitations. The officers were not required to know plaintiff’s intent
19 behind his statement or actions; they only were required to evaluate the totality of the circumstances in an
20 objectively reasonable manner. (Graham, 490 U.S. at 396; see also Wilson v. Meeks 52 F.3d 1547, 1553
21 (1995), the objective reasonableness analysis does not require that the police officer know what is in the
22 heart or mind of a subject. It requires only that he react reasonably under the circumstances known to
23 him., abrogated on other grounds, Saucier v. Katz, 533 U.S. 194 (2001).) The fact that plaintiff
24 previously had shoulder surgery did not alter the facts or vitiate his physical resistance, the danger he
25 posed or the need to secure him in handcuffs.
26 Plaintiff has no evidence to support his first cause of action for excessive force in violation of the
27 Fourth Amendment against Torres or Canady. Summary judgment of plaintiff’s Fourth Amendment
28 claims should be granted.

10
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 18 of 29

1
C. Plaintiff’s §1983 Claim For Violation Of The Fourteenth Amendment Is Unsupported By
2 Evidence

3 Plaintiff claims that his Fourteenth Amendment rights were violated because the officers failed to

4 protect him from injury during his detention by failing to handcuff him in front of his body and keeping

5 him detained in handcuffs for a prolonged period of time. Plaintiff’s claims are unsupported by the

6 undisputed evidence. Like Fourth Amendment excessive force claims, failure to protect claims brought

7 by pretrial detainees are analyzed under the same objective reasonableness standard based on the totality

8 of circumstances. (Kingsley v. Hendrickson, __ U.S. __ 135 S.Ct. 2466, 2470 (2015); Castro v. Cnty. of

9 Los Angeles, 833 F.3d 1060 (2016),) The undisputed evidence in this case fails to show that the

10 subsequent use of handcuffs after plaintiff was detained was objectively unreasonable under the

11 circumstances.

12 First, the undisputed evidence establishes that Canady had no involvement in the manner or

13 length plaintiff was handcuffed after he was in custody. Canady’s only involvement was in assisting

14 Torres to overcome plaintiff’s admitted resistance to being handcuffed. Plaintiff in fact testified that

15 Canady was directed to leave the scene as soon as he was handcuffed, and Canady used no other force

16 and had no further involvement with plaintiff. Canady was off duty at the time and he did not participate

17 in plaintiff’s detention or transport once he was secured in handcuffs. Indeed, plaintiff testified that he

18 did not tell anyone other than Torres that he felt pain in his shoulder. (Buckhalter Depo. 91:24-92:2.)

19 Plaintiff has no evidence to support any basis in law or fact for Canady’s liability for the manner or

20 length plaintiff was detained after he was handcuffed and Canady left the scene. Canady’s only

21 involvement was in the initial handcuffing, which was objectively reasonable under the totality of

22 circumstances as discussed in Section “B” above.

23 Second, the manner and duration that plaintiff was detained in handcuffs by Torres was

24 objectively reasonable under the totality of circumstances known to him at the time. Plaintiff testified

25 that the only force Torres used against him was bringing his hands behind his back to secure him in

26 handcuffs.There is no evidence that Torres pulled or did anything else to plaintiff’s arm once he was in

27 handcuffs. (Buckhalter Depo. 148:17-20.) Plaintiff testified that after he told Torres his shoulder hurt and

28 he needed to go to the hospital, Torres took him directly to the hospital and that they arrived at the

11
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 19 of 29

1 hospital within approximately 15 minutes of leaving his residence. (Buckhalter Depo. 92:23-93:6.)

2 Plaintiff was seen by hospital staff and cleared for booking into jail. Torres and plaintiff left the hospital

3 at approximately 8:15 p.m. and arrived at the Solano County jail at approximately 8:58 p.m. Plaintiff was

4 detained in handcuffs for less than four hours, during which time he was medically examined and cleared

5 to be physically sound for booking into jail. Further, by plaintiff’s own estimation, only approximately

6 40 minutes elapsed in which Torres responded to other calls and picked up suspects in other incidents to

7 transport them to jail with plaintiff. (Buckhalter Depo. 96:1-21.) The duration of plaintiff’s handcuffing

8 thus was not unnecessarily lengthy and was objectively reasonable. (See e.g., Muehler v. Mena, 544 U.S.

9 93, 98 (2005), detention in handcuffs for 2-3 hours was objectively reasonable.)
10 Similarly, the manner in which plaintiff was kept handcuffed behind his back was objectively
11 reasonable. In Han v. City of Los Angeles, 2016 WL 2758241 (C.D. Cal. 2016), Han was arrested for
12 trespassing for unlawfully leafletting at business establishments. Han was handcuffed behind his back
13 and he informed officers that he had a pre-existing shoulder injury and asked for the handcuffs to be
14 loosened, but officers did not loosen the cuffs or move his hands to the front of his body to lessen the
15 pain in his shoulder. Unlike plaintiff in this case, there was no evidence that Han had been aggressive,
16 threatened to assault officers, struggled with police or physically resisted being handcuffed. The court
17 found that evidence that Han informed officers of a preexisting shoulder injury that was causing him pain
18 based on the handcuffs being tight behind his back and that the offices did nothing to alleviate that pain
19 was insufficient to constitute excessive force – and thus not objectively unreasonable – as a matter of
20 law. (Id. at *8.) In the instant case, plaintiff had been aggressive, agitated, verbally threatening and
21 physically combative at the incident scene. Officer Torres thus believed that keeping plaintiff cuffed
22 behind his back was necessary for his safety and the safety of persons he might contact. Plaintiff’s
23 shoulder was examined and he was medically cleared for booking into jail, and the fact that he
24 complained of pain in his shoulder once or twice during the ride to jail but was kept handcuffed behind
25 his back does not render the handcuffing objectively unreasonable.
26 The undisputed evidence fails to support plaintiff’s claim that the continued use of handcuffs after
27 his initial arrest was objectively unreasonable under the totality of the circumstances. Plaintiff’s
28 Fourteenth Amendment claim for failure to protect from injury is meritless against Canady or Torres.

12
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 20 of 29

1 D. The Officers Are Entitled To Qualified Immunity From Plaintiffs’ §1983 Claims

2 Even if plaintiff somehow could establish that his Fourth or Fourteenth Amendment rights were

3 violated, the officers are protected from liability by qualified immunity. Qualified immunity protects

4 officers from liability where their conduct does not violate clearly established law, notwithstanding that

5 reasonable officers could disagree. (Pearson v. Callahan, 555 U.S. 223, 231 (2009); Hunter v. Bryant,

6 502 U.S. 224, 228 (1991).) A court discerns whether “the [officer] acted reasonably under settled

7 law in the circumstances, not whether another reasonable, or more reasonable interpretation of the

8 events can be constructed…after the fact.” [Emphasis added.] (Hunter, 502 U.S. at 228.) Qualified

9 immunity “gives ample room for mistaken judgments by protecting all but the plainly incompetent or
10 those who knowingly violate the law.” (Id. at 227; Brosseau v. Haugen, 543 U.S. 194, 205 (2004).)
11 “[T]he Court considers only the facts that were knowable to the defendant officers.” (White v. Pauly,
12 137 S.Ct. 548, 550 (2017), Kingsley v. Hendrickson, 135 S.Ct. 2466, 2474 (2015).)
13 To defeat qualified immunity, the law must be “ ‘clearly established in light of the specific

14 context of the case’ at the time of the events in question.” (Mattos v. Agarano, 661 F.3d 433, 440 (9th

15 Cir. 2011).) It is plaintiff’s burden to show the law was clearly established so “every reasonable official

16 would [have understood] that what he is doing violates that right.” (Reichle v. Howards, 556 U.S

17 658, 132 S.Ct. 2088, 2093 (2012).) “In other words, existing precedent must have placed the statutory or

18 constitutional question beyond debate.” (Reichle, 132 S.Ct. at 2093; Ashcroft v. al-Kidd, 563 U.S. 731,

19 741 (2011), Mattos, 661 F.3d at 442.) Whether the law was clearly established “must be [determined] in
20 light of the specific context of the case, not as a broad general proposition.” (Saucier v. Katz, 533 U.S.

21 194, 205 (2001), overruled in part re mandatory analysis procedure, Pearson, 555 U.S. at 232.) “[It must]

22 be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” [Emphasis

23 added.] (Katz, 533 U.S. at 202; Brosseau, 543 U.S. at 205; Mattos, 661 F.3d at 442, al-Kidd, 563 U.S. at

24 742.) It is not enough to “determine the broad question of whether the seizure…violated the fourth

25 amendment’s proscription against unreasonable seizures.” (Maag v. Wessler, 960 F.2d 773, 775 (9th Cir.

26 1991).) “[G]eneral Fourth Amendment principles may only provide clearly established law in obvious

27 cases and the Supreme Court “clarified that the bar for finding such obviousness is quite high.…[and] it

28 has ‘repeatedly told courts not to define clearly established law at a high level of generality.’” (Mattos,

13
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 21 of 29

1 661 F.3d at 442, citing al-Kidd, 563 U.S. at 742.)

2 As the Supreme Court recently explained, “In the last five years, this Court has issued a number

3 of opinions reversing federal courts in qualified immunity cases. … The Court has found this necessary

4 both because qualified immunity is important to ‘society as a whole,’ and because as ‘an immunity from

5 suit’ qualified immunity ‘is effectively lost if a case is erroneously permitted to go to trial’.” (White v.

6 Pauly, 137 S.Ct. 548, 551 (2017).) The Court thus explained:

7 [I]t is again necessary to reiterate the longstanding principle that “clearly established law” should
not be defined “at a high level of generality.” … the clearly established law must be
8 “particularized” to the facts of the case. … Otherwise “[p]laintiffs would be able to convert the
rule of qualified immunity … into a rule of virtually unqualified liability simply by alleging
9 violation of extremely abstract rights.” …
10 The panel majority misunderstood the “clearly established” analysis: It failed to identify a case
where an officer acting under similar circumstances as Officer White was held to have violated the
11 Fourth Amendment. … Of course, “general statements of the law are not inherently incapable of
giving fair and clear warning” to officers, … but “in the light of pre-existing law the
12 unlawfulness must be apparent.” … For that reason, we have held that Garner and Graham do
not by themselves create clearly established law outside “an obvious case.” [Emphasis added.]
13

14 (White, 137 S.Ct. at 552; Brosseau, 543 U.S. at 199; Plumhoff, 134 S.Ct. at 2023.) Where a case presents

15 a “unique set of facts and circumstances,” this alone should be an indication that an officer’s conduct did

16 not violate a “clearly established” right. (White, 137 S.Ct. at 552.)

17 The Supreme Court consistently has emphasized in recent years that it has “repeatedly told courts

18 not to define clearly established law at a high level of generality.” (al-Kidd, 563 U.S. at 742; White v.

19 Pauly, 137 S.Ct. 548, 550 (2017); Kingsley, 135 S.Ct. at 2474; Plumhoff, 134 S.Ct. at 2023.) The

20 importance of identifying clearly established law in terms of the specific contours of each particular case

21 is of such great significance that the Supreme Court as recently as April 2, 2018 once again reversed a

22 Ninth Circuit decision denying qualified immunity, and it again expressly admonished courts not to

23 define clearly established law at a high level of generality. (Kisela v. Hughes, 138 S.Ct. 1148, 1152

24 (2018).)

25 In Kisela, a neighbor reported that a woman was hacking a tree with a knife, and she told officers

26 the woman was acting erratically. Officers observed Hughes exit a house with a large kitchen knife and

27 noted that she matched the subject description. Hughes walked down her driveway towards a woman,

28 later identified as Hughes’s roommate Chadwick, standing near a car in the driveway. Hughes stopped

14
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 22 of 29

1 six feet away from her. All three officers drew their guns and twice told her to drop the knife. Hughes

2 appeared calm but did not acknowledge the officers or drop the knife. All three officers believed Hughes

3 was a threat to Chadwick and Kisela fired four times, striking Hughes. (Id. at 1151.) Hughes sued Kisela

4 under §1983 claiming excessive force in violation of the Fourth Amendment. The District Court granted

5 summary judgment, but the Ninth Circuit reversed on the grounds that the violation was clearly

6 established, and the violation was obvious. (Id.) The Supreme Court granted Kisela’s petition for

7 certiorari and reversed the Ninth Circuit decision, finding that Kisela was entitled to qualified immunity.

8 (Id. at 1152, 1155.)

9 The Supreme Court reiterated that:


10 Although “this Court's caselaw does not require a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional question beyond
11 debate.” White, 580 U.S., at ––––, 137 S.Ct., at 551 (internal quotation marks omitted). “In other
words, immunity protects all but the plainly incompetent or those who knowingly violate the law.”
12
Ibid. (internal quotation marks omitted). This Court has “ ‘repeatedly told courts—and the
13 Ninth Circuit in particular—not to define clearly established law at a high level of
generality.’ ” City and County of San Francisco v. Sheehan, 575 U.S. ––––, ––––, 135 S.Ct. 1765,
14 1775–1776, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct.
2074, 179 L.Ed.2d 1149 (2011)); see also Brosseau, supra, at 198–199, 125 S.Ct. 596.
15
“[S]pecificity is especially important in the Fourth Amendment context, where the Court has
16 recognized that it is sometimes difficult for an officer to determine how the relevant legal
17 doctrine, here excessive force, will apply to the factual situation the officer confronts.”
Mullenix v. Luna, 577 U.S. ––––, ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam
18 *1153) (internal quotation marks omitted). Use of excessive force is an area of the law “in which
the result depends very much on the facts of each case,” and thus police officers are entitled
19 to qualified immunity unless existing precedent “squarely governs” the specific facts at
issue. Id., at ––––, 136 S.Ct., at 309 (internal quotation marks omitted and emphasis deleted).
20
Precedent involving similar facts can help move a case beyond the otherwise “hazy border
21 between excessive and acceptable force” and thereby provide an officer notice that a specific use
of force is unlawful. Id., at ––––, 136 S.Ct., at 312 (internal quotation marks omitted).
22
“Of course, general statements of the law are not inherently incapable of giving fair and clear
23 warning to officers.” White, 580 U.S., at ––––, 137 S.Ct., at 552 (internal quotation marks
omitted). But the general rules set forth in “Garner and Graham do not by themselves create
24 clearly established law outside an ‘obvious case.’ ” Ibid. Where constitutional guidelines seem
25 inapplicable or too remote, it does not suffice for a court simply to state that an officer may not
use unreasonable and excessive force, deny qualified immunity, and then remit the case for a
26 trial on the question of reasonableness. An officer “cannot be said to have violated a clearly
established right unless the right's contours were sufficiently definite that any reasonable
27 official in the defendant's shoes would have understood that he was violating it.” Plumhoff v.
28 Rickard, 572 U.S. ––––, ––––, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). That is a necessary

15
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 23 of 29

1 part of the qualified-immunity standard, and it is a part of the standard that the Court of Appeals
here failed to implement in a correct way.
2
(Kisela, 138 S.Ct. at 1152–1153, emphasis added.)
3
The evidence showed that Kisela shot Hughes because he believed she was a threat to Chadwick.
4
Kisela had mere seconds to assess the potential danger to Chadwick; he was confronted by a woman seen
5
hacking a tree with a large knife, whose erratic behavior was significant enough for a bystander to call
6
911 and flag down officers; Hughes moved to within feet of Chadwick; and she failed to acknowledge
7
commands or drop the knife. The Supreme Court thus concluded “[t]his is far from an obvious case in
8
which any competent officer would have known that shooting Hughes to protect Chadwick would violate
9
the Fourth Amendment.” (Kisela, 138 S.Ct. at 1153.) The Court further concluded that the Ninth Circuit
10
“made additional errors in concluding that its own precedent clearly established that Kisela used
11
excessive force. To begin with, ‘even if a controlling circuit precedent could constitute clearly
12
established law in these circumstances, it does not do so here.’ Sheehan, supra, at ––––, 135 S.Ct., at
13
1776.” (Id.) The Court found that the Ninth Circuit’s reliance on case authorities involving dissimilar
14
factual situations such as police shooting an unarmed man in the face without warning (Doerle v.
15
Rutherford, 272 F.3d 1272 (9th Cir. 2001)), and where an FBI sniper positioned safely on a hilltop shot a
16
man in the back as he retreated into a cabin during the Ruby Ridge standoff (Harris v. Roderick, 126
17
F.3d 1189 (9th Cir. 1997)), was improper to show clearly established law. The Supreme Court noted that
18
the differences in these cases and the Kisela case “leap from the page,” and the attempt to rely on such
19
cases to constitute clearly established law “does not pass the straight-face test.” (Kisela, 138 S.Ct. at
20
1154.) Therefore, the law was not clearly established prohibiting the use of force under the specific facts
21
confronting Kisela, and Kisela was entitled to qualified immunity. (Id. at 1155.)
22
In this case, plaintiff cannot establish that the law was clearly established prohibiting the officers’
23
use of force to handcuff plaintiff, or Torres’ detention of plaintiff in handcuffs after his arrest. Plaintiff
24
cannot identify clearly established law prohibiting Torres from attempting to handcuff him after he
25
became angry and agitated, refused to obey commands and threatened to physically attack and “knock
26
out” Canady as soon as Torres left the scene. No clearly established law prohibited Torres from trying to
27
pull plaintiff’s arm behind his back for handcuffing and to overcome plaintiff’s physical resistance to
28

16
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 24 of 29

1 being handcuffed. Similarly, plaintiff cannot identify any clearly established law prohibiting Canady

2 from assisting Torres against plaintiff’s physical resistance, or using his knee to put pressure on

3 plaintiff’s left side to overcome his resistance and position him so he could be handcuffed. Plaintiff

4 cannot identify any factually similar authority that “squarely governs” the officers’ conduct under the

5 facts and circumstances of this case that clearly prohibited their actions, thus, the officers are entitled to

6 qualified immunity from plaintiff’s excessive force claim in effecting his arrest.

7 Plaintiff likewise cannot identify clearly established law in which an officer acting under similar

8 circumstances as Torres and Canady was held to have violated the Fourth Amendment or Fourteenth

9 Amendment for detaining an arrestee in handcuffs in a similar manner as plaintiff claims he was detained
10 after being arrested. Plaintiff cannot identify any authority in which an off duty officer like Canady was
11 required to know and control the manner in which an arrestee was handcuffed and detained by others
12 after he left the scene and had no further involvement with the arrestee, the arrestee’s transport or the
13 incident. Canady, therefore, is entitled qualified immunity from plaintiff’s Fourteenth Amendment failure
14 to protect claim.
15 Plaintiff also cannot show clearly established law that prohibited Torres from keeping plaintiff
16 handcuffed under the particular facts and circumstances of this case. The undisputed evidence shows that
17 plaintiff was kept in handcuffs because he threatened to physically assault a police officer, including
18 statements he would “knock him out,” and actively and aggressively resisted the officers.. The use of
19 tight or prolonged handcuffing may be excessive force in some situations but not others, and the analysis
20 as to whether a particular use of handcuffs is objectively reasonable is fact specific, and underscores the
21 need for similar case authority to defeat qualified immunity. As the Supreme Court repeatedly has
22 emphasized, “[S]pecificity is especially important in the Fourth Amendment context, where the Court has
23 recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here
24 excessive force, will apply to the factual situation the officer confronts. Mullenix v. Luna, 577 U.S. –––,
25 –––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam *1153) (internal quotation marks omitted).
26 Use of excessive force is an area of the law ‘in which the result depends very much on the facts of each
27 case,’ and thus police officers are entitled to qualified immunity unless existing precedent ‘squarely
28 governs’ the specific facts at issue. Id., at –––, 136 S.Ct., at 309.” (Kisela, 138 S.Ct. at 1152–1153.)

17
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 25 of 29

1 Accordingly, plaintiff cannot rely on case authorities setting forth general prohibitions against excessive

2 force, the use of handcuffs generally or in factually dissimilar situations to defeat qualified immunity.

3 Plaintiff cannot identify clearly established law prohibiting Torres’ detention of plaintiff in handcuffs

4 under the “particularized facts of the case” such that it would have been clear to every reasonable officer

5 that the conduct was unreasonable.

6 Under the Supreme Court’s string of recent decisions, including Kisela, White, Kingsley and

7 Plumhoff, in which it has consistently, and repeatedly required clear precedent that squarely governs the

8 conduct at issue in order to defeat qualified immunity, plaintiff cannot meet his burden to identify any

9 clearly established law prohibiting the officers’ conduct under the undisputed facts of this case. Torres
10 and Canady are entitled to qualified immunity.
11 E. Plaintiff’s Battery Claim Is Unsupported By Evidence
12 Battery “is any intentional, unlawful and harmful contact by one person with the person of
13 another. (Ashcraft v. King, 228 Cal.App.3d 604, 611 (1991).) Claims of battery against a police officer
14 require plaintiffs to show the officer used unreasonable force. (Knapps v. City of Oakland, 647 F.Supp.2d
15 1129, 1166 (N.D. Cal. 2009); Brown v. Ransweiler, 171 Cal.App.4th 516, 526-527 (2009); Pen. Code

16 §835(a).) This requires an identical Graham analysis. (Alvina v. U.S., 681 F.3d 1127, 1131 (9th Cir.

17 2012).) As discussed fully above, the undisputed evidence here establishes that the only force used by

18 Torres was bringing plaintiff’s hands behind his back to secure him in handcuffs, and the only force used

19 by Canady was in attempting to control plaintiff’s physical resistance and using his knee to put pressure
20 on plaintiff’s side to overcome plaintiff’s resistance to effect his handcuffing. The officers’ use of force

21 was objectively reasonable under the totality of the circumstances. Plaintiff’s battery claim thus is

22 unsupportable.

23 F. Plaintiff’s Assault Claim Is Meritless

24 An assault is “a demonstration of an unlawful intent by one person to inflict immediate injury on

25 the person of another then present.’” (Lowry v. Standard Oil Co. of Cal., 63 Cal.App.2d 1, 6-7 (1944);

26 So v. Shin, 212 Cal.App.4th 652, 668 (2013).) Words alone do not amount to an assault. (Tromblinson

27 v. Nobile, 103 Cal.App.2d 266, 269 (1951); Plotnik v. Meihaus, 208 Cal.App.4th 1590, 1604.) The

28 uncontroverted evidence shows that Torres and Canady did not threaten or use any unlawful force against

18
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 26 of 29

1 plaintiff, and neither officer demonstrated any unlawful intent to inflict injury on plaintiff. The officers’

2 conduct throughout the incident was objectively reasonable in response to plaintiff’s threats to commit

3 violence against Canady, refusal to follow orders and physical resistance to Torres’ efforts to handcuff

4 him. The undisputed evidence fails to show any unlawful intent to injure plaintiff, and his assault claim is

5 unsupportable.

6 G. Plaintiffs’ Intentional Infliction Of Emotional Distress Claim Is Unsupported By Evidence

7 To establish a claim for intentional infliction of emotional distress , plaintiffs must show “(1)

8 outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of

9 causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation….”
10 (Aquino v. Superior Court, 21 Cal.App.4th 847, 856 (1993), Bogard v. Emp’rs Cas. Co., 164 Cal.App.3d
11 602, 616 (1985); Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376 (2010).) The “[c]onduct to be
12 outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized
13 community.” (Davidson v. City of Westminster, 32 Cal.3d 197, 209 (1982).) Conduct is extreme and
14 outrageous when it is of a nature which is especially calculated to cause, and does cause, mental distress.
15 Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other
16 trivialities. (Fisher v San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 617 (1989).) The conduct must
17 be more than “intentional and outrageous. It must be conduct directed at the plaintiff….” (Christensen v.
18 Superior Court, 54 Cal.3d 868, 903 (1991).) The conduct also must be “intended to inflict injury or
19 engaged in with the realization that injury will result.” (Potter v. Firestone Tire & Rubber Co., 6 Cal.4th
20 965, 1001 (1993).) The undisputed evidence in this case fails to show extreme and outrageous conduct
21 by Torres or Canady, or any intent to injure anyone. Torres and Canady’s use of force was objectively
22 reasonable under the circumstances and in response to plaintiff’s conduct. The intentional infliction of
23 emotional distress claim is unsupported by evidence, and summary judgment should be granted on this
24 claim.
25 H. Plaintiff’s Negligent Infliction Of Emotional Distress Claim Is Unsupported By Evidence
26 Negligent infliction of emotional distress is merely a theory of negligence (Christensen v.
27 Superior Court, 54 Cal.3d 868, 884 (1991); Huggins v. Longs Drug Stores California, Inc., 6 Cal.4th 124,
28 129 (1993).) “The elements of a negligence cause of action are duty to use due care and breach of duty,

19
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 27 of 29

1 which proximately causes injury.” (Lopez v. City of Los Angeles, 196 Cal.App.4th 675, 685 (2011),

2 Homes v. Summer, 188 Cal.App.4th 1510, 1528 (2010).) “‘Absent a legal duty, any injury is an injury

3 without actionable wrong.’” (J.L. v. Children’s Institute, Inc., 177 Cal.App.4th 388, 396 (2009).) “The

4 existence of a duty of care is a question of law to be determined by the court alone.” (Parsons v. Crown

5 Disposal Co., 15 Cal.4th 456, 472-473 (1997).) The “question of a defendant’s negligence may be

6 determined as a matter of law where reasonable jurors ‘can draw but one conclusion from the evidence

7 presented.’” (Hernandez v. City of Pomona, 46 Cal.4th 501, 521 (2009).) The officers in this case had no

8 legal duty to ignore plaintiff’s threatening behavior or the potential danger he posed and refrain from

9 securing him in handcuffs, and they had no duty to ignore his physical resistance, accept his claims of a
10 prior shoulder injury and terminate their efforts to handcuff him in the midst of an ongoing physical
11 struggle.
12 Further, the undisputed evidence establishes that the officers’ conduct was reasonable under the
13 circumstances, and they did not breach any duty. “While it is easy, with the benefit of hindsight, to make
14 suggestions as to how [officers] might have responded differently in the situation, the fact that … officers
15 [are] making these decisions in real time and in response to rapidly changing circumstances is a factor to
16 consider in determining the reasonableness of their actions.” (Brown v. Ransweiler, 171 Cal.App.4th 516,
17 537 (Cal. Ct. App. 2009).) “The law has never been applied to suggest that there is only one reasonable
18 action that an officer may take under a given set of circumstances. There will virtually always be a range
19 of conduct that is reasonable … It would be unreasonable to require police officers in the field to engage
20 in the sort of complex calculus that would be necessary to determine the ‘best’ or most effective and least
21 dangerous method of handling an immediate and dangerous situation, particularly when officers are
22 forced to make split-second decisions under tense and often perilous conditions.” (Id. at 537-538.) “As
23 long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances,
24 there is no requirement that he or she choose the ‘most reasonable’ action or the conduct that is the least
25 likely to cause harm and at the same time the most likely to result in the successful apprehension of a
26 violent suspect, in order to avoid liability for negligence.” (Hayes v. Cnty. of San Diego, 57 Cal.4th 622,
27 632 (2013); Brown, 171 Cal.App.4th at 537-538.) “Law enforcement personnel have a degree of
28 discretion as to how they choose to address a particular situation. Summary judgment is appropriate

20
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 28 of 29

1 when the trial court determines that, viewing the facts most favorably to the plaintiff, no reasonable juror

2 could find negligence.” (Hayes, 57 Cal.4th at 632.) As discussed fully above, the force used was

3 objectively reasonable under the totality of circumstances and in response to plaintiff’s threatening

4 behavior and physical resistance. The officers were “not obliged simply to let him go” when he tried to

5 pull away and resist being handcuffed. (Hernandez, 46 Cal.4th at 518.) Canady left after Torres finally

6 managed to handcuff plaintiff and Canady had no further involvement with plaintiff, his detention,

7 transport to jail or the incident, and he is not liable for Torres’ alleged conduct, or for any other officer as

8 a matter of law. (Govt. Code §820.8, “Except as otherwise provided by statute, a public employee is not

9 liable for an injury caused by the act or omission of another person.”) Torres’ detention of plaintiff in
10 handcuffs until he was booked into jail was objectively reasonable because plaintiff threatened to “knock
11 out” and assault a police officer and actively resisted the officers and was not unnecessarily prolonged.
12 Torres did not breach any duty of care in the manner in which he detained plaintiff. Plaintiff’s negligent
13 infliction of emotional distress claim is unsupported by evidence and meritless.
14 I. Plaintiff’s Claim For Violation of Civil Rights Under Cal. Civ. Code §52.1 Is Meritless
15 Section 52.1 proscribes interference or attempted interference by any person by threats,
16 intimidation or coercion with rights secured by the Constitution or laws of the United States. (§52.1(a);
17 Austin B. v. Escondido Union Sch. Dist., 149 Cal.App.4th 860, 883 (2007); Barsamian v. City of
18 Kingsburgh, 597. F.Supp.2d 1054, 1057 (E.D. Cal. 2009); Arres v. City of Fresno, 2011 WL284971 at
19 *25 (E.D. Cal. 2011).) It does not extend to regular tort actions. (§52.1(a); Shoyoye v. Cnty. of Los
20 Angeles, 203 Cal.App.4th 947 (2012); Meyers v. City of Fresno, 2011 WL 902115 (E.D. Cal. 2011);
21 Venegas v. Cnty. of Los Angeles, 32 Cal.4th 820, 843 (2004).) To establish a claim under §52.1,
22 plaintiffs must present evidence “showing violence or intimidation by threat of violence by the accused
23 defendant. (Cabesuela v. Browning-Ferris Indus., 68 Cal.App.4th 101, 111 … (1998); see also Winarto
24 v. Toshiba America Electronics Components, Inc., 274 F.3d 1276 (2001).) Speech alone is insufficient …
25 [unless] the speech itself … threaten[s] violence and places the victim in reasonable fear of violence. Cal.
26 Civ.Code § 52.1(j).” (Clifford v. Regents of Univ. of California, 2:11–CV–02935–JAM–GGH, 2012 WL
27 1565702, *9 (E.D. Cal. Apr. 30, 2012), aff’d, 584 F.App’x 431 (9th Cir. 2014); Corales v. Bennett, 567
28 F.3d 554, 564, 570-571 (9th Cir. 2009); §52.1(j).) Where, as here, no evidence exists that the plaintiff’s

21
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH
Case 2:17-cv-02072-KJM-AC Document 46 Filed 12/20/18 Page 29 of 29

1 rights were violated by defendants’ violence or threat of violence, a §52.1 claim cannot be established.

2 (King v. State, 242 Cal.App.4th 265, 293-295 (2015).)

3 As set forth above, plaintiff has no evidence to establish any violation of his Fourth or Fourteenth

4 Amendment rights, thus his §52.1 claim is unsupportable. Summary judgment should be granted in favor

5 of defendants on plaintiff’s §52.1 claim.

6 J. The Officers Are Entitled To Immunity Under Govt. Code §§ 820.2 and 820.8

7 Section 820.2 immunizes public employees for acts or omissions resulting from the exercise of

8 discretion. (Legis. Committee Comment to §820.2.) The officers are immune for their assessment of the

9 situation, their assessment that plaintiff posed a risk to officer safety and their and tactical decisions;
10 including Torres’ decision to handcuff plaintiff and Canady’s decision to assist Torres. Section 820.2
11 immunizes these discretionary decisions “whether or not such discretion be abused.” (Ortega v.
12 Sacramento Cnty. Dept. of Health and Human Servs., 161 Cal.App.4th 713, 728, 733 (2008); Hayes, 57
13 Cal.4th at 632.) The individual defendants also are not liable for the conduct of other officers. (Govt.
14 Code §820.8.)
15 IV. CONCLUSION
16 For the reasons set forth above and in defendants’ supporting papers filed concurrently herewith,

17 defendants Torres and Canady respectfully submit that the instant motion for summary judgment, or in

18 the alternative, partial summary judgment, should be granted in their favor and against plaintiff.

19
20 Dated: December 20, 2018 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL

21
By: /s/ Richard W. Osman
22
Richard W. Osman
23 Sheila D. Crawford
Attorneys for Defendants
24 DANIEL TORRES and ROGER CANADY

25

26

27

28

22
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-GGH