Buckhalter Reply Brief

Case 2:17-cv-02072-KJM-AC Document 54 Filed 01/17/19 Page 1 of 15
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
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NICK C. BUCKHALTER Case No. 2:17-cv-02072-KJM-AC
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Plaintiff, DEFENDANTS DANIEL TORRES AND ROGER
13 CANADY’S REPLY TO PLAINTIFF’S
v. OPPOSITION TO MOTION FOR SUMMARY
14 JUDGMENT, OR ALTERNATIVELY, PARTIAL
SUMMARY JUDGMENT (FRCP, RULE 56)
15 DANIEL TORRES, et al.,
16 Defendants. Date: January 25, 2019
17 Time: 10:00 am
Location: Courtroom 3, 15th Floor
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19 Hon. Kimberley J. Mueller

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DEFENDANTS’ REPLY RE MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT
Buckhalter v. Torres, et al. Case No. 2:17-cv-02072-KJM-AC
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TABLE OF CONTENTS
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I. INTRODUCTION AND ARGUMENT ..........................................................................................1
3
A. Torres’ Conduct Was Objectively Reasonable Under The Totality Of The
4 Circumstances ......................................................................................................................1
5 B. Plaintiff’s §1983 Claim For Violation Of The Fourteenth Amendment Is Meritless ..........3
6 C. Torres Is Entitled To Qualified Immunity From Plaintiffs’ §1983 Claims .........................5
7 D. Plaintiff’s Battery Claim Is Unsupported By Evidence .......................................................8
8 E. Plaintiff’s Negligent Infliction Of Emotional Distress Claim Is Unsupported By
Evidence ...............................................................................................................................8
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F. Plaintiff’s Claim For Violation of Civil Rights Under Cal. Civ. Code §52.1 Is
10 Meritless ...............................................................................................................................9
11 G. Torres Is Entitled To Immunity Under Govt. Code §§ 820.2 and 820.8 .............................9
12 II. OBJECTIONS TO PLAINTIFF’S EVIDENCE..............................................................................9
13 III. CONCLUSION ..............................................................................................................................10
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1 TABLE OF AUTHORITIES
2 Cases
3 Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ............................................................................................................................. 5
4
Austin B. v. Escondido Union Sch. Dist.,
5 149 Cal.App.4th 860 (2007) ................................................................................................................ 9
6 Barsamian v. City of Kingsburgh,

597. F.Supp.2d 1054 (E.D. Cal. 2009)................................................................................................. 9
7
Castro v. Cnty. of Los Angeles,
8 833 F.3d 1060 (2016) ........................................................................................................................... 4
9 Graham v. Connor,
490 U.S. 386 (1989) ............................................................................................................................. 2
10
Han v. City of Los Angeles,
11 2016 WL 2758241 (C.D. Cal. 2016).................................................................................................... 4
12 Hansen v. Black,
885 F.2d 641 (9th Cir. 1989) ............................................................................................................... 2
13
Kennedy v. Allied Mutual Ins. Co.,
14 952 F.2d 262 (9th Cir. 1991) ............................................................................................................... 9
15 King v. State,
242 Cal.App.4th 265 (2015) ................................................................................................................ 9
16
Kingsley v. Hendrickson,
17 135 S.Ct. 2466 (2015) .......................................................................................................................... 4
18 Kisela v. Hughes,
138 S.Ct. 1148 (2018) .......................................................................................................................... 5
19
LaLaonde v. Cnty. of Riverside,
20 204 F.3d 947 (9th Cir. 2000) ............................................................................................................... 2
21 Maag v. Wessler,
960 F.2d 773 (9th Cir. 1991) ............................................................................................................... 5
22
Mattos v. Agarano,
23 661 F.3d 433 (9th Cir. 2011) ............................................................................................................... 2
24 Meredith v. Erath,
342 F.3d 1057 (9th Cir. 2003) ............................................................................................................. 7
25
Muehler v. Mena,
26 544 U.S. 93 (2005) ............................................................................................................................... 2
27 Mullenix v. Luna,
577 U.S. ___ ,136 S.Ct. 305 (2015) ................................................................................................. 6, 8
28
ii
1 Ortega v. Sacramento Cnty. Dept. of Health and Human Servs.,

61 Cal.App.4th 713 (2008) .................................................................................................................. 9
2
Palmer v. Sanderson,
3 9 F.3d 1433 (9th Cir. 1993) ................................................................................................................. 2
4 Plumhoff v. Rickard,
134 S.Ct. 2012 (2014) .......................................................................................................................... 6
5
Reese v. Cnty. of Sacramento,
6 888 F.3d 1030 (9th Cir. 2018) ............................................................................................................. 6
7 Reichle v. Howards,
132 S.Ct. 2088 (2012) .......................................................................................................................... 5
8
Smith v. City of Hemet,
9 394 F.3d 689 (9th Cir. 2005) ............................................................................................................... 2
10 Venegas v. Cnty. of Los Angeles,
32 Cal.4th 820 (2004) .......................................................................................................................... 9
11
Wall v. Cnty. of Orange,
12 364 F.3d 1107 (9th Cir. 2004) ............................................................................................................. 7
13 Statutes
14 California Civil Code, Section 52.1(a) ...................................................................................................... 9
15 California Penal Code, Section 835(a)....................................................................................................... 8
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1 I. INTRODUCTION AND ARGUMENT
2 Plaintiff concedes defendants’ statement of facts and evidence submitted in support of the instant
3 motion, and concedes judgment should be entered in favor of defendants on all claims brought against
4 Canady, and his state law claims of assault and intentional infliction of emotional distress brought against
5 both Canady and Torres. The only evidence plaintiff submits is his brief declaration elaborating on a few
6 of defendants’ facts. He does not dispute the force used to effect his arrest was objectively reasonable
7 and lawful. Rather, his opposition makes clear that his excessive force claim is limited to the manner in
8 which Torres allegedly kept him handcuffed after he initially was cuffed. He claims the handcuffs were
9 too tight, Torres did not readjust the cuffs when he complained and he was handcuffed for an
10 unnecessarily long time after he told Torres the cuffs were too tight. The undisputed evidence, however,
11 shows that the manner in which plaintiff was kept in handcuffs was objectively reasonable under the
12 totality of circumstances, given plaintiff’s unusual, directly threatening statements and physical
13 resistance. Further, plaintiff’s opposition ignores the wealth of recent Supreme Court and Ninth Circuit
14 authority clarifying his burden to show clearly established law, in a particularized sense, that clearly
prohibited Torres’s alleged application of handcuffs under the facts of this case. Plaintiff fails to identify
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any authority involving similar facts to this case and fails to show existing precedent that squarely
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governs the specific facts at issue. Torres thus is entitled to qualified immunity from plaintiff’s §1983
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claims. Plaintiff’s state law claims also are unsupported by evidence and Torres is immune from liability
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from plaintiff’s state law claims. Summary judgment should be granted in favor of defendants.
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A. Torres’ Conduct Was Objectively Reasonable Under The Totality Of The Circumstances
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Although plaintiff continues to assert Fourth and Fourteenth Amendment claims separately, his
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opposition makes clear that his these claims against Torres are identical and limited to the manner in
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which plaintiff was kept in handcuffs after they were applied. Specifically, he claims: 1) the handcuffs
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were too tight and not adjusted after he complained of pain, and 2) he was kept in handcuffs for an
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unnecessarily long time. (Opp. 2:15-24, 6:4-8.) The undisputed evidence establishes that the manner in
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which plaintiff was handcuffed was objectively reasonable under the totality of circumstances and his
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Fourth and Fourteenth Amendment claims are untenable. 1
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Plaintiff’s Fourteenth Amendment claim is discussed separately in Section “C” below.
1
1 “[D]etermining the objective reasonableness of a particular seizure under the Fourth Amendment
2 …requires analyzing the totality of the circumstances’” (Plumhoff v. Richard, 134 S.Ct. 2012, 2020
3 (2014); Graham v. Connor, 490 U.S. 386, 396 (1989).) Ultimately, the most important “factor is whether
4 the suspect posed an ‘immediate threat to the safety of the officers or others.’” (Mattos v. Agarano, 661
5 F.3d 433, 441 (9th Cir. 2011), Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005).) “The
6 reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on
7 the scene, rather than with the 20/20 vision of hindsight.” (Graham at 396-397; Plumhoff at 2020.)
8 Plaintiff does not dispute any of the facts leading up to his arrest and handcuffing, and, in fact,
9 does not dispute that his arrest and the force used to effect his arrest was objectively reasonable. The
10 undisputed evidence establishes that plaintiff became angry and agitated when informed he would be
11 cited for his dangerous driving and he admittedly threatened to physically assault Canady, stating he
12 would “knock him out.” Plaintiff admits that: he told Torres he had a history of assaults; he would assault
13 Canady and physically attack him as soon as Torres left if Torres did not arrest him; he disobeyed
14 Torres’ repeated orders; and he physically resisted Torres’ efforts to handcuff him and physically
15 struggled with Torres. Accordingly, plaintiff offers no opposition to summary judgment on the objective
16 reasonableness of the force used to effect his arrest and place him in handcuffs. (Graham, 490 U.S. at
17 396-97; Muehler v. Mena, 544 U.S. 93, 99 (2005).) Summary judgment in this regard should be granted.
18 Plaintiff’s claim that Torres used excessive force because the handcuffs were too tight and not
19 adjusted despite his complaints, and because the length of time he was handcuffed was unreasonable is
20 unsupported by the evidence. (See Section “C” below regarding the reasonableness of the manner and
21 duration of handcuffing, incorporated herein.) His reliance on Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.
22 1993), Hansen v. Black, 885 F2d 641 (9th Cir. 1989) and LaLaonde v. Cnty. of Riverside, 204 F.3d 947
23 (9th Cir. 2000) is unavailing. In Palmer, Palmer was stopped on suspicion of DUI. Palmer suffered
24 impaired mobility, field sobriety tests failed to show intoxication, he was compliant, he offered to go to
25 the police station for further investigation, he made no threats against anyone and he did not physically
26 resist being handcuffed. Under those circumstances, there was no evidence justifying handcuffing him so
27 tightly it caused pain and bruising or in refusing to loosen the cuffs after he complained of pain. (Palmer,
28 supra at 1434-36.) In Hansen, Hansen was ordered not to throw garbage bags into a truck, and she was
2
1 75 feet from officers when she uttered profanity at a mound of undiscarded garbage. (Hansen, supra at
2 643.) She claimed that during her arrest she was handcuffed in an abusive manner causing injury. (Id. at
3 645.) While cuffing was found to be excessive force, no facts were given as to how Hansen was
4 handcuffed or any facts showing what constituted an “abusive manner.” The case did not involve claims
5 of too tight or prolonged handcuffing. In LaLonde, LaLonde claimed officers used excessive force by
6 using a knee in his back to handcuff him and causing injury, spraying him with pepper spray,
7 handcuffing him too tightly and forcing him to sit handcuffed without removing the pepper spray from
8 his face, eyes and mouth. The Court noted that whether the tight handcuffing was excessive depended on
9 the facts of each case, and where the facts were disputed, a jury should have determined whether the
10 force was reasonable. (LaLonde, supra at 960.)
11 By contrast, the facts in this case are undisputed and plaintiff was not compliant. He expressly
12 threatened violence against Canady, bragged about prior assaults, was angry and agitated and refused to
13 obey orders and physically fought efforts to handcuff him. While too tight and lengthy handcuffing may
14 be excessive force in certain circumstances, plaintiff’s cited authorities fail to establish that the manner in
15 which he was handcuffed under the totality of the particular circumstances in this case was unreasonable.
16 Plaintiff’s claim that a significant factual dispute exists because of a discrepancy in the time he
17 was booked into jail is meritless, as defendants relied on plaintiff’s version of the facts. (See Def. MPA,
18 7:3-15.) While Torres may have recalled the time that plaintiff was booked into jail as 8:58 p.m., which
19 plaintiff does not dispute and accepts (Opp. 1:12-13), plaintiff claims “he was booked into jail at
20 approximately 12:07 a.m.” Defendants accept plaintiff’s estimation that he was booked into jail at 12:07
21 a.m. for purposes of the instant motion to avoid any disputed issue of fact. Even under plaintiff’s version
22 of fact, the manner and duration that he was handcuffed were objectively reasonable under the totality of
23 undisputed circumstances and his excessive force claim on this basis is meritless. (See Section “C.”)
24 B. Plaintiff’s §1983 Claim For Violation Of The Fourteenth Amendment Is Meritless
25 Plaintiff’s Fourteenth Amendment claim is based on the same claim that Torres failed to loosen
26 the handcuffs when plaintiff complained about tightness and pain, and Torres unnecessarily delayed
27 taking plaintiff to jail after leaving the hospital while keeping him handcuffed and not wearing the
28 prescribed sling. His Fourteenth Amendment claims are analyzed under the same objective
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1 reasonableness standard based on the totality of circumstances. (Kingsley v. Hendrickson, 135 S.Ct.
2 2466, 2470 (2015); Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (2016).)
3 Keeping plaintiff handcuffed behind his back without readjusting the cuffs was objectively
4 reasonable. In Han v. City of Los Angeles, 2016 WL 2758241 (C.D. Cal. 2016), Han was handcuffed
5 behind his back and claimed he had a pre-existing shoulder injury and asked for the cuffs to be loosened,
6 but officers did not loosen or readjust the cuffs. Unlike plaintiff in this case, there was no evidence that
7 Han had been aggressive, threatened to assault officers, struggled with police or physically resisted being
8 handcuffed. Even in that nonviolent situation, the court found the fact that Han informed officers of a
9 preexisting shoulder injury and pain from the handcuffing, yet officers did nothing to alleviate that pain,
10 was not objectively unreasonable as a matter of law. (Id. at *8.) Plaintiff in this case was aggressive,
11 agitated, verbally threatening and physically combative. Torres thus reasonably believed that keeping
12 him cuffed behind his back was necessary for his safety and the safety anyone he might contact.
13 Plaintiff’s shoulder was examined and he was medically cleared for booking into jail, and the fact that he
14 complained of shoulder pain once or twice during the ride to jail but was kept handcuffed behind his
15 back does not render the handcuffing objectively unreasonable.
16 The duration that plaintiff was handcuffed also was reasonable. In Muehler, supra at 98, the
17 detention in handcuffs for 2-3 hours was objectively reasonable under the circumstances. Officers were
18 executing a search warrant of the residence for weapons and a wanted gang member. Although plaintiff
19 was not the target of the warrant and had not threatened or physically resisted officers, her detention in
20 handcuffs for 2-3 hours was objectively reasonable in the inherently dangerous situation to minimize the
21 risk of harm to officers and others present. (Id. at 100.)
22 In this case, plaintiff was aggressive and agitated, he threatened that he had a history of assaults,
23 directly threatened to physically attack a police officer and physically resisted attempts to handcuff him.
24 Torres thus reasonably believed plaintiff might physically assault someone and should remain in
25 handcuffs for Torres’ safety and the safety of others. Plaintiff testified that, other than shoulder pain, he
26 did not complain of any pain, including wrist pain. (See Section III.) He was seen by hospital staff and
27 cleared for booking into jail. The undisputed evidence shows that Torres had no reason to believe that
28 keeping plaintiff handcuffed was medically unreasonable. Further, plaintiff testified that Torres took him
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1 to the hospital for treatment within 15 minutes of leaving his residence. (Buckhalter Depo. 93:1-6.) He
2 testified that they left the hospital at approximately 8:00 p.m. and he believes he was booked into jail at
3 12:07 a.m. Based on plaintiff’s own deposition testimony, however, only approximately 40 minutes
4 elapsed in which Torres responded to other calls and picked up suspects in other incidents to transport
5 them to jail with plaintiff. (Buckhalter Depo. 96:1-21.) Viewing the evidence in the light most favorable
6 to plaintiff, he was detained in handcuffs for less than four to six hours, during which time he was
7 medically examined and cleared to be physically sound for booking into jail. Under the totality of
8 circumstances, particularly in light of plaintiff’s physical resistance and assaultive and threatening
9 behavior, the duration of his handcuffing was not objectively unreasonable.

10 C. Torres Is Entitled To Qualified Immunity From Plaintiffs’ §1983 Claims
11 Plaintiff ignores recent Supreme Court and Ninth Circuit authority that requires him to identify
12 factually similar case authority, “squarely on point,” that clearly establishes that the manner and duration
13 of his handcuffing was prohibited such that every reasonable officer in the same situation would have
14 known the use of handcuffs in such manner was unlawful. (Reichle v. Howards, 132 S.Ct. 2088, 2093
15 (2012).) “[E]xisting precedent must have placed the statutory or constitutional question beyond debate.”
16 (Reichle, supra at 2093; Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), Mattos, supra at 442.) It is not
17 enough to “determine the broad question of whether the seizure…violated the fourth amendment’s
18 proscription against unreasonable seizures.” (Maag v. Wessler, 960 F.2d 773, 775 (9th Cir. 1991).)
19 Rather, plaintiff must “identify a case where an officer acting under similar circumstances as [the
20 defendant officer] was held to have violated the Fourth Amendment. … ‘in the light of pre-existing law
21 the unlawfulness must be apparent.’ “ (White v. Pauly, 137 S.Ct. 548, 552 (2017); Brosseau v. Haugen,
22 543 U.S. 194, 199 (2004); Plumhoff, supra at 2023.) Where a case presents a “unique set of facts and
23 circumstances,” this alone should be an indication that an officer’s conduct did not violate a “clearly
24 established” right. (White, supra at 552.)
25 In Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018), the Supreme Court emphasized it “repeatedly
26 told courts not to define clearly established law at a high level of generality.” (al-Kidd, 563 U.S. at 742;
27 White v. Pauly, 137 S.Ct. 548, 550 (2017); Kingsley, 135 S.Ct. at 2474; Plumhoff, 134 S.Ct. at 2023.)
28 “[S]pecificity is especially important in the Fourth Amendment context, where the Court has
recognized that it is sometimes difficult for an officer to determine how the relevant legal
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1 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
2 *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
3 to qualified immunity unless existing precedent “squarely governs” the specific facts at
issue. Id., at ––––, 136 S.Ct., at 309 …Where constitutional guidelines seem inapplicable or too
4 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 trial on the
5 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 official in the
6 defendant's shoes would have understood that he was violating it.” Plumhoff v. Rickard, 572
U.S. ––, ––, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014).
7
(Kisela, 138 S.Ct. at 1152–1153, emphasis added.)
8
In Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1035-36 (9th Cir. 2018) the Ninth Circuit
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followed Kisela and found qualified immunity applied because the law was not clearly established
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prohibiting the officer’s use of force under the particular facts of the case. Even where the jury found the
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deputy used unreasonable force because Reese posed no immediate threat to anyone, the jury’s finding
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“does not answer the purely legal question of whether the right was clearly established in this context.”
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(Id. at 1038.) Reese failed to identify “any sufficiently analogous cases showing that under similar
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circumstances, a clearly established right against the use of deadly force existed at the time of the
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shooting.” (Id.) Case authorities holding that the use of deadly force was unreasonable where the subject
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did not pose a threat to officers in different factual situations was inadequate and did not constitute
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clearly established law in the situation the deputy confronted in the case. (Id. at 1039.) Reese’s reliance
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on factually dissimilar cases was insufficient and “make clear that the law was not clearly established for
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the circumstances Deputy Rose confronted …” (Id.) “None of Reese’s cases “squarely govern” the
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situation that Rose confronted such that it would have given Rose clear warning that his use of deadly
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force was objectively unreasonable,” thus qualified immunity applied. (Id. at 1040.)
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Plaintiff here likewise fails to cite any authority “squarely on point” that clearly prohibited the
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manner and duration of his handcuffing. His cited authorities are factually dissimilar and insufficient to
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constitute clearly established law under the facts of this case. Notably, all of plaintiff’s cited authorities
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finding qualified immunity inapplicable based on the general proscription against excessive force predate
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the Supreme Court’s string of recent decisions, including Kisela, White, Kingsley and Plumhoff, that
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require clear precedent that squarely governs the conduct at issue in order to defeat qualified immunity.
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1 For example, in Wall v. Cnty. of Orange, 364 F.3d 1107 (9th Cir. 2004), Wall was ordered to leave after
2 a verbal dispute, and as he was walking away and complying with orders an officer attacked him from
3 behind, grabbed his wrist, twisted his arm, handcuffed his hands extremely tight behind his back and
4 ignored requests to loosen the cuffs. (Id. at 1109-1110.) The Court relied on the general Fourth
5 Amendment prohibition against unreasonable force to find that it is well established that overly tight
6 handcuffing can constitute excessive force. (Id. at 1112.) The Court did not provide any specifics or
7 guidance as to when or under what circumstances tight handcuffing can constitute excessive force, the
8 facts in Wall are dissimilar from the instant case and the Court’s reliance on general Fourth Amendment
9 principles to find clearly established law has since been repeatedly and unequivocally rejected by the
10 Supreme Court and recent the Ninth Circuit authority.
11 In Meredith v. Erath, 342 F.3d 1057 (9th Cir. 2003), officers were executing a search warrant in
12 an investigation of filing false tax returns and the plaintiff asked to see the warrant. In response to her
13 request, officers grabbed the plaintiff’s arms, forcibly threw her to the ground, twisted her arms, placed
14 her in handcuffs that she claimed were so tight it caused her pain and bruising, failed to readjust the cuffs
15 for 30 minutes despite her complaints of pain and kept her in handcuffs for several hours. (Id. at 1061.)
16 Unlike plaintiff in this case, the plaintiff in Erath made no threats against anyone, did not threaten
17 violence, did not physically resist and did not engage in any physical struggle. Officers were
18 investigating a nonviolent offense and plaintiff did not pose a safety risk and made no attempt to flee,
19 thus the need for force was minimal. (Id. at 1061.) The Court found that under the circumstances and
20 general Fourth Amendment principles, no reasonable officer would think the painful handcuffing was
21 constitutional and it denied qualified immunity. The facts in Erath are not remotely similar to the facts in
22 the instant case and it is not “squarely on point” such that it would provide clear notice that Torres’
23 conduct under the particular facts of this case was unconstitutional.
24 In Palmer, which long predates the Supreme Court’s recent string of authorities clarifying the
25 clearly established requirement, Palmer made no threats and was complaint with all orders, yet the officer
26 jerked him out of the car, pushed him against it and handcuffed him. Palmer complained the cuffs were
27 too tight and painful but the officer refused requests to loosen them. The Court found no evidence
28 justifying tightly handcuffing Palmer or refusing to loosen them. The Court found a jury could find the
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1 force used excessive, thus the denial of qualified immunity was proper. The Court’s analysis in Palmer is
2 outdated and does not comport with proper qualified immunity analysis regarding clearly established law
3 as the Supreme Court has gone to great lengths to clarify in the decades since Palmer was decided.
4 None of plaintiff’s cited authorities are factually similar such that they could constitute clearly
5 established law under the particular facts of this case. Plaintiff failed to identify “any sufficiently
6 analogous cases showing that under similar circumstances, a clearly established right” against the use of
7 handcuffs in the manner of which plaintiff complains. (Reese, 888 F.3d at 1038.) Plaintiff fails to meet
8 his burden to identify clearly established law in which an officer acting under similar circumstances as
9 Torres was held to have violated the Fourth Amendment or Fourteenth Amendment for detaining an
10 arrestee in handcuffs in a similar manner as plaintiff claims he was detained. The undisputed evidence
11 shows that plaintiff was kept in handcuffs because he threatened to physically assault a police officer,
12 expressly stated he would “knock him out,” and actively and aggressively resisted the officers.. The use
13 of tight or prolonged handcuffing may be excessive force in some situations but not others, and the
14 analysis as to whether a particular use of handcuffs is objectively reasonable is fact specific, and
15 underscores the need for similar case authority to defeat qualified immunity. (Mullenix v. Luna, 136 S.Ct.
16 305, 308-09 (2015); Kisela, 138 S.Ct. at 1152–1153.) Plaintiff cannot rely on case authorities setting
17 forth general prohibitions against excessive force, the use of handcuffs generally or in factually dissimilar
18 situations to defeat qualified immunity. Plaintiff cannot identify clearly established law prohibiting
19 Torres’ use of handcuffs under the “particularized facts of the case” so it would have been clear that the
20 conduct was unreasonable. Torres thus is entitled to qualified immunity.
21 D. Plaintiff’s Battery Claim Is Unsupported By Evidence
22 Plaintiff’s battery claim is unsupportable and fails for the same reasons his excessive force claims
23 fail. (Brown v. Ransweiler, 171 Cal.App.4th 516, 526-527 (2009); Pen. Code §835(a); Alvina v. U.S., 681
24 F.3d 1127, 1131 (9th Cir. 2012).)
25 E. Plaintiff’s Negligent Infliction Of Emotional Distress Claim Is Unsupported By Evidence
26 Summary judgment should be granted on this claim for the reasons set forth in defendants’
27 moving and reply papers, and because plaintiff offers no opposition to summary judgment on this claim.
28
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1 F. Plaintiff’s Claim For Violation of Civil Rights Under Cal. Civ. Code §52.1 Is Meritless
2 Given that the undisputed evidence establishes that Torres did not violate plaintiff’s civil rights,
3 his §52.1 claim is unsupportable. (§52.1(a); Austin B. v. Escondido Union Sch. Dist., 149 Cal.App.4th
4 860, 883 (2007); Barsamian v. City of Kingsburgh, 597. F.Supp.2d 1054, 1057 (E.D. Cal. 2009); King v.
5 State, 242 Cal.App.4th 265, 293-295 (2015).) The undisputed evidence also fails to show that Torres
6 intended not only the force, but its unreasonableness. (Reese, supra at 1045-6.)
7 G. Torres Is Entitled To Immunity Under Govt. Code §§ 820.2 and 820.8
8 Torres is immune for his assessment of the situation, his assessment that plaintiff posed a safety
9 risk and his tactical decisions. (Ortega v. Sacramento Cnty. Dept. of Health and Human Servs., 161
10 Cal.App.4th 713, 728, 733 (2008); Hayes, 57 Cal.4th at 632.)
11 II. OBJECTIONS TO PLAINTIFF’S EVIDENCE
12 Defendants object to plaintiff’s declaration because it contradicts his sworn deposition testimony.
13 As a matter of law, declarations submitted as evidence in connection with a motion for summary
14 judgment cannot contradict prior deposition testimony. (Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262,
15 266 (9th Cir. 1991) (“If a party who has been examined at length on deposition could raise an issue of
16 fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish
17 the utility of summary judgment as a procedure for screening out sham issues of fact.”).) Maurey v.
18 University of Southern Cal., 87 f. Supp. 2D 1021, 1037 (C.D. Cal. 1999) (declaration contradicting prior
19 sworn deposition testimony inadmissible for purposes of summary judgment.).)
20 Here, plaintiff’s declaration contradicts his sworn deposition testimony and fails to raise a triable
21 issue of material fact. In his declaration, plaintiff states he requested Torres loosen the handcuffs on his
22 wrists before they arrived at the hospital and that Torres ignored his request. (Buckhalter Decl. ¶¶3 and
23 4.) Contrary to plaintiff’s declaration, he testified as follows during his deposition:
24 Q: Okay. So you’re in handcuffs, secured in a patrol vehicle, correct?

A: Right.
25 Q: Did you tell anyone that you were in pain?
A: I told Officer Torres that my shoulder was really hurting.
26 Q: Let me just give you a timeframe. By the time you are secured in handcuffs, to the time that
the patrol vehicle with you in it leaves the scene. That timeframe. Did you tell anyone you were in pain?
27 A: Officer Torres.
Q: What did you tell him?
28 A: I told him I needed to go to the hospital.
Q: Why?
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1 A: Because my arm was inflamed.

Q: Did you tell him anything else?
2 A: No.
Q: Did you tell anyone else anything about being in pain, or your shoulder, or anything else
3 between that time again that you were –
A: Nobody but Officer Torres.
4
Q: Where were you feeling pain that was an 8 out of 10?
5 A: My shoulder to my elbow.
Q: Which shoulder?
6 A: The left shoulder.
Q: Anywhere else?
7 Q: No.
8 (See Plaintiff’s Depo., 91:6-92:18 attached as Ex. D to the Declaration of Sheila Crawford.)
9 Pursuant to his sworn deposition testimony, from the time he was secured in handcuffs to the time
10 he reached the hospital to be medically cleared regarding complaints of pain in his left shoulder, plaintiff
11 never told Torres he was experiencing pain in his wrists because the handcuffs were too tight, nor did he
12 request Torres loosen the handcuffs. Plaintiff’s declaration clearly contradicts his sworn deposition
13 testimony and therefore is inadmissible to create a triable issue of material fact.
14 Plaintiff contradicts his deposition testimony in paragraph 6 of his declaration, wherein he states
15 Torres ignored a second request to loosen the handcuffs. (Buckhalter Decl., ¶6.) During his deposition
16 (Plaintiff’s Depo., 151:4:18), plaintiff testified as follows:
17 Q: Okay. So you believe that you asked Officer Torres to loosen your handcuffs two times, one
time being when?
18 A: One time when was in the parking lot after we left the hospital.
Q: And the second time was when?
19 A: The second time was after we left the motel and we were in front of the Shell station.
...
20 Q: Both times Officer Torres responded how?
A: The first time he says, Don’t worry about it. We’ll be at the lockup in a little bit. And then the
21 second time, he says, What did I tell you? So I didn’t say anything else.
22 Pursuant to his deposition testimony, plaintiff requested Officer Torres loosen his handcuffs two
23 times, both of which occurred after he left the hospital. This is significant because, taking plaintiff’s
24 deposition testimony as true, it shortens the length of time Officer Torres was purportedly made aware
25 that plaintiff was experiencing pain in his wrists from the handcuffs. Plaintiff’s declaration impermissibly
26 contradicts his sworn deposition testimony and should not be considered.
27 III. CONCLUSION
28 Defendants’ motion for summary judgment should be granted.
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1 Dated: January 17, 2019 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
2 By: /s/ Richard W. Osman

Richard W. Osman
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Sheila D. Crawford
4 Attorneys for Defendants
DANIEL TORRES and ROGER CANADY
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Case 2:17-cv-02072-KJM-AC Document 54 Filed 01/17/19 Page 1 of 15

1 Richard W. Osman, State Bar No. 167993

19 Hon. Kimberley J. Mueller

6 Barsamian v. City of Kingsburgh,

1 Ortega v. Sacramento Cnty. Dept. of Health and Human Servs.,

14 California Civil Code, Section 52.1(a) ...................................................................................................... 9

15 California Penal Code, Section 835(a)....................................................................................................... 8

1 I. INTRODUCTION AND ARGUMENT

24 B. Plaintiff’s §1983 Claim For Violation Of The Fourteenth Amendment Is Meritless

9 behavior, the duration of his handcuffing was not objectively unreasonable.

24 established” right. (White, supra at 552.)

7 G. Torres Is Entitled To Immunity Under Govt. Code §§ 820.2 and 820.8

10 Cal.App.4th 713, 728, 733 (2008); Hayes, 57 Cal.4th at 632.)

11 II. OBJECTIONS TO PLAINTIFF’S EVIDENCE

19 sworn deposition testimony inadmissible for purposes of summary judgment.).)

23 4.) Contrary to plaintiff’s declaration, he testified as follows during his deposition:

24 Q: Okay. So you’re in handcuffs, secured in a patrol vehicle, correct?

1 A: Because my arm was inflamed.

2 By: /s/ Richard W. Osman

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