Browne v. San Francisco Sheriff's Dept.

• Decision Date: 13 May 2009
• Docket Number: No. C 03-0047 PJH.,C 03-0047 PJH.
• Citation: 616 F.Supp.2d 975
• Parties: Darren BROWNE, aka Aaron Browne, Plaintiff, v. SAN FRANCISCO SHERIFF'S DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — Northern District of California

616 F.Supp.2d 975

Darren BROWNE, aka Aaron Browne, Plaintiff, v. SAN FRANCISCO SHERIFF'S DEPARTMENT, et al., Defendants.

No. C 03-0047 PJH.

United States District Court, N.D. California.

May 13, 2009.

Harriet Pauline Ross, Esq., San Francisco, CA, for Plaintiff.

Robert A. Bonta, City Attorney's Office, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR RECONSIDERATION AND MOTION FOR SUMMARY JUDGMENT

PHYLLIS J. HAMILTON, District Judge.

Defendants' motion for reconsideration of the court's November 19, 2007 order, 2007 WL 4166007 granting summary judgment in part and denying it in part, and defendants' motion for summary judgment, came on for hearing before this court on May 13, 2009. Plaintiff did not appear, and defendants appeared by their counsel Robert A. Bonta. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendants' motions.

BACKGROUND

In January 2003, plaintiff Darren Browne, aka Aaron Browne, a former California pretrial detainee proceeding in propria persona, filed this civil rights action against nearly fifty defendants, alleging that he had been injured by officers and medical staff of the San Francisco County Sheriff's Department. The court dismissed the original complaint and the first amended complaint, and plaintiff filed the second amended complaint on September 22, 2003. On December 11, 2006, 2006 WL 3618037, the court dismissed several claims and approximately half of the defendants, and ordered service. On April 9, 2007, the remaining defendants filed a motion for summary judgment. On November 19, 2007, the court granted the motion for summary judgment in part and denied it in part.

The factual background is as set forth in the November 19, 2007 order. Briefly, plaintiff alleged in the second amended complaint that on November 21, 2002, while in custody at the San Francisco County Jail, he was assaulted without cause by Deputies Madden, Huntoon, Im, Balmy, Rodriguez, and Wong; that on November 28, 2002, during a cell search, he was assaulted without cause by Deputy Castro; and that on December 10, 2002, after complaining about Deputy Madden to Chief Dempsey, he was assaulted by Deputy Madden and Deputy Sung.

Plaintiff alleged further that after the November 21, 2002 assault, the December 10, 2002 assault, and the December 22, 2002 assault, he was denied medical treatment by various deputies and nurses; and that on December 10, 2002, Deputy Sung threw cold water on him and turned on the air-conditioning.

Finally, plaintiff alleged that on January 14, 2003, while en route to new housing, he was assaulted by Deputy Miller because he had complained to Lieutenant Peacoo (correctly spelled "Pecot") that his artwork had been confiscated; and that he was attacked twice on January 22, 2003, once by Sgt. Freeman, Deputy Miller, and Deputy Fields, and a second time by Deputies Prato, Murphy, Sanprano, and Forde, with the acquiescence of Lieutenant Pecot.

The court found no evidence to support the excessive force claims as to fifteen of the defendants, and dismissed those defendants from the case. The court denied the motion for summary judgment as to the excessive force claims alleged against defendants Castro, Freeman, Fields, Miller, and Madden. In addition, the court granted the motion with respect to the claims of deliberate indifference to serious medical needs alleged against the non-medical staff, and also the claims alleged against the defendant medical personnel.

On February 29, 2008, the court appointed counsel to represent plaintiff in this action. On January 28, 2009, defendants moved pursuant to Civil Local Rule 7-9(a) for leave to file a motion for reconsideration of the November 19, 2007 order, arguing that the court had made findings that were contrary to the record presented. At the same time, defendants moved for summary judgment as to the remaining defendants. On January 29, 2009, the court granted the motion for leave to file a motion for reconsideration.

DISCUSSION

A. Motion for Reconsideration

1. Legal Standard

The Federal Rules of Civil Procedure do not address motions for reconsideration of interlocutory orders. Under the Civil Local Rules of this court, a party may seek reconsideration of "any interlocutory order" made in a case "[b]efore the entry of judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case." Civil L.R. 7-9(a). In seeking reconsideration, the moving party must specifically show

(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party must also show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or

(2) The emergence of new material facts or a change of law occurring after the time of such order; or

(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.

Civil L.R. 7-9(b).

2. Defendants' Motion

In opposing defendants' prior motion for summary judgment, plaintiff supported his factual assertions with copies of several prisoner grievance forms attached to his opposition as Exhibit A. He had originally prepared and submitted these grievance forms while he was in custody at the San Francisco County Jail from November 2002 through January 2003. The court found that Exhibit A was the evidentiary equivalent of a declaration. November 19, 2007, Order at 8-9.

It was based on this evidence that the court found that "[o]f the defendants that are named in Ex. A, only five—Castro (Ex. A at 1), Madden (Exhibit A at 2), Freeman (Ex. A at 7, 9, 12), Fields (Ex. A at 9) and Miller (Ex. A at 9)—are accused of excessive force with a sufficient degree of particularity as to support a viable claim under [Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir.2001)]." November 19, 2007 Order at 9-10.

In their motion for reconsideration, defendants assert that the court mistook separate incidents relating to Deputies Castro, Madden, and Miller described in Exhibit A as support for entirely different incidents relating to Deputies Castro, Miller, and Madden alleged in the second amended complaint.

Defendants note that plaintiff alleged in the second amended complaint that Deputy Castro was involved in a November 28, 2002 incident involving excessive force against plaintiff, and that the court referred to this allegation in the November 19, 2007 order. Defendants note further that the court denied summary judgment as to the excessive force claims alleged against Deputy Castro, based on the evidence attached in Exhibit A. Defendants argue, however, that the evidence the court referred to and that plaintiff attached to his opposition related to a January 4, 2003 incident that was unrelated to the November 28, 2002 incident.

Defendants assert that the actual grievance form described an incident occurring on January 4, 2003, in which plaintiff was being escorted from a safety cell. They contend that the grievance form says nothing about a "cell search" (alleged as part of the November 28, 2002 incident), and clearly indicates that the date of the incident was January 4, 2003. The grievance form states as follows:

Deputy Castro on escort from the safety cell applied unecessary force in the bending and twisting of my right wrist— which I suffer from continue pain already due to prior deputies assaults & safety cells. I asked Castro to ease off & explained to Johnson who had my left hand to witness and look how upward high Castro was bending my wrist when it was unecessary as I was being walked.

Thus, defendants contend, the grievance form and the allegations in the complaint relate to two separate and distinct incidents, and the "evidence" contained in the grievance form therefore cannot be used to oppose summary judgment on the claim regarding the use of excessive force on November 28, 2002.

For similar reasons, defendants argue that claims against Deputy Madden relating to the November 21, 2002 incident should be dismissed. Defendants note that plaintiff attached a grievance form as part of Exhibit A, which relates to the alleged December 10, 2002 incident involving Deputy Madden, but that he provided no evidence whatsoever relating to the November 21, 2002 incident.

Defendants also contend that Deputy Miller should be dismissed as to allegations relating to the January 14, 2003 incident. Defendants note that plaintiff attached a grievance form as part of Exhibit A, which relates to the alleged January 22, 2003 incident involving Deputy Miller, but contend that he provides no evidence relating to the purported January 14, 2003 incident.

The court has reviewed the second amended complaint and plaintiff's opposition to the prior motion for summary judgment, along with the grievance forms attached as Exhibit A, and agrees with defendants that plaintiff has provided no evidence to support the claim against Deputy Castro regarding the alleged November 28, 2003 incident, the claim against Deputy Madden relating to the alleged November 21, 2002 incident, and the claim against Deputy Miller relating to the alleged January 14, 2003 incident.

The second amended complaint alleges incidents occurring on November 21, 22, 25, 26, and 28, 2002; December 9, 10, 12, 27, 28, 29, 2002; and January 1, 3, 4, 6-7, 9, 14, and 22, 2003. Exhibit A contains copies of grievance forms relating to incidents occurring on November 22, 2002; December 10, 15, 27-28, and 30, 2002; and January 4, 8, 22, and 23, 2003.

Only five dates of incidents described in the grievance forms match dates of incidents alleged in the second amended complaint—...