Lawman v. City & Cnty. of S.F.

• Decision Date: 05 February 2016
• Docket Number: Case No. 15-cv-01202-DMR
• Citation: 159 F.Supp.3d 1130
• Court: U.S. District Court — Northern District of California
• Parties: Gary Richard Lawman, Plaintiff, v. City and County of San Francisco, et al., Defendants.

159 F.Supp.3d 1130

Gary Richard Lawman, Plaintiff,

v.City and County of San Francisco, et al., Defendants.

Case No. 15-cv-01202-DMR

United States District Court, N.D. California.

Signed February 5, 2016

Joseph S. May, Law Office of Joseph S. May, Richard Wesley Pratt, Brent, Fiol & Pratt LLP, San Francisco, CA, David M. Helbraun, Helbraun Law Firm, San Francisco, CA, for Plaintiff.

James F. Hannawalt, Rebecca Ann Bers, City Attorney's Office, San Francisco, CA, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO AMEND THE COMPLAINT

Donna M. Ryu

, United States Magistrate Judge

Plaintiff Gary Richard Lawman, through his guardian ad litem Richard de Villiers, filed this civil rights action under 42 U.S.C. § 1983

, the Americans with Disabilities Act (“ADA”), and state law claiming that he suffered injuries following a December 2011 arrest. He asserts claims against the City and County of San Francisco (“CCSF”); San Francisco Police Chief Greg Suhr; San Francisco Police Department (“SFPD”) Officers Phillip M. Gordon, Glen Paul Minioza, Brian W. Kneuker, Sgt. Carlos Gutierrez, and Sgt. Craig F. Tom; San Francisco Sheriff's Department (“SFSD”) Deputies Patrick F. Pene, Julio C. Palencia, Andrew N. Brown, Senior Deputy Paul E. Rapicavoli, and Sgt. Matthew M. O'Shea; CCSF Sheriff Michael Hennessey; and CCSF Nurses Roel L. Lapitan and Frank Latko.

Before the court are Defendants' motion for summary judgment and Plaintiff's motion for leave to amend the complaint. [Docket Nos. 38 (Defs.' Mot. for Summ J.); 69 (Pl.'s Supp. Brief), 70 (Defs.' Supp. Brief).] The court conducted a hearing on December 17, 2015 and ordered the parties to submit supplemental briefing. Having considered the parties' argument and submissions, and for the reasons stated below, Defendants' motion is GRANTED IN PART AND DENIED IN PART. Plaintiff's motion for leave to amend is DENIED.

I. BACKGROUND

A. Factual Background

The facts recounted below are undisputed, unless otherwise noted.

1. Lawman's Arrest, Incarceration, and Release

Plaintiff Gary Lawman was in San Francisco on the night of December 31, 2011. Sometime after 9:00 p.m., Lawman entered the Four Seasons Hotel on Market Street in order to gain access to the Four Seasons Residences. He attempted to board secure elevators that can only be operated with a key or fob. Concierge John Rodie asked if he could help Lawman, who responded that he needed to “get to the penthouse.” Even though Lawman could not identify a specific penthouse or resident, he repeatedly insisted that Rodie send him up to the top penthouse. Rodie refused to allow him to use the elevator without more information. According to Rodie, Lawman was casually dressed and “pretty clean-cut,” and his demeanor was “cocky; kind of sarcastic.” Lawman eventually sat down on a bench by the elevators. After a short time, he approached Rodie at his desk to ask him for a bottle of water. When Rodie offered him one, Lawman said that he wanted Rodie to serve him the bottle on a silver platter. At that point, Rodie called security since Lawman was refusing to answer his questions and “had no business there.”

Rodie, who came within two to three feet of Lawman, did not smell alcohol on him and did not believe he was drunk. According to Rodie, Lawman was steady on his feet and was speaking clearly and at a normal pace. His eyes were not bloodshot, his eyelids were not drooping or heavy, and he was not sweating. However, given Lawman's behavior, Rodie thought he might be under the influence of narcotics.

Security guard John Flores responded to Rodie's call. According to Flores, Lawman was rude and acting “kind of weird,” and refused to leave. Flores asked Lawman if he was visiting a resident. Lawman denied that he was visiting a resident and told Flores words to the effect of “You don't belong here. Get out of here.” Lawman then told Flores to get him a cup of water. Flores, who receives periodic training on how to detect intoxication and deal with intoxicated hotel guests, did not believe that Lawman was drunk. He came within five to eight feet of Lawman and did not smell alcohol on him. He did not observe Lawman stumbling, sweating, or slurring his speech. He also denied that Lawman had bloodshot eyes or heavy eyelids. Flores soon called the police for assistance with removing Lawman from the premises. He did not tell the police that Lawman was intoxicated.

SFPD officers, including Defendants Gordon and Minioza, were dispatched to the Four Seasons at approximately 9:20 p.m. When they arrived, Flores explained to the officers that Lawman had no business there and was refusing to leave. The officers did not ask Flores any questions before speaking directly to Lawman. They did not speak with Rodie at all. According to Flores, one of the officers asked Lawman what he was doing there, and asked Lawman to get up and leave. Flores does not recall any of Lawman's specific statements to the officers, but described Lawman as rude. Similarly, Rodie described Lawman's behavior toward the officers as belligerent. The officers lifted Lawman to his feet and walked him out of the building to a police van parked a few hundred feet away. Flores observed that Lawman walked steadily the whole way.

Gordon arrested Lawman for public intoxication in violation of California Penal Code section 647(f)

. Officers are not required to prepare a police incident report if arresting an individual for public intoxication. Instead, they fill out a Public Intoxication Report, which appears to be a 5” by 7” card which contains boxes for capturing basic information, “check off” boxes for the officer's physical observations, and a small area in which the officer can provide a brief narrative description. See, e.g., Bers Decl. Ex. D (Public Intoxication Report). Gordon completed a Public Intoxication Report for Lawman's arrest, and signed it under oath. Gordon checked boxes indicating that Lawman exhibited a flushed face, drooping eyelids

, slow and slurred speech, and a moderate odor of alcohol. Bers Decl. Ex. D. Gordon also handwrote the following observations:

I was dispatched to 757 Market St regarding an intoxicated trespasser. I contacted Richard [sic] Lawman. Lawman refused to leave. He smelled heavily of alcoholic beverage and could not answer my questions. I determined Lawman was unable to care for himself as a result of his intoxication.

Id . Gordon obtained approval for the arrest from Defendant Tom, but it is not clear whether Tom personally observed Lawman. Defendant Kneuker transported Lawman to County Jail 1 as a “release when sober,” which is a four-hour minimum detention in a sobering cell. Gordon has only a vague memory of the entire incident, and Minioza and Kneuker have no recollection of the incident at all.

Upon Lawman's arrival at County Jail 1, Defendant Latko, a nurse, performed a triage assessment. Latko completed a triage report indicating that Lawman's general appearance was unremarkable and noting that Lawman stated that he “has no urgent medical condition.” Bers Decl. Ex. J. Latko also determined that Lawman was not suicidal and was not using drugs. Latko did not perform a physical or mental examination. Lawman was then placed in a sobering cell, where he was observed by nursing staff and deputies four times per hour. May Decl. Ex. 15 at CCSF_LAWMAN 000012 (Sobering Cell Observation Record). Lawman's observation record indicates that jail personnel checked on him eleven times over a four hour period, in approximately fifteen minute intervals. The observation record contains no entries of unusual behavior. Id . One of Lawman's sobering cell mates, M. M.,¹ recalls that Lawman was “dressed nicely but had peanut butter smeared on him.” He states that Lawman “was acting loopy and restless,” but M. M. did not observe signs that Lawman was “under the influence of alcohol, such as slurred speech, bloodshot eyes, droopy eyelids

, or smell of alcohol.” M. M. Decl., Nov. 19, 2015, ¶ 5.²

The jail discharged Lawman at 1:40 a.m. on January 1, 2012. About fourteen hours later, at approximately 3:15 p.m., Flores observed Lawman walking down Market Street in front of the Four Seasons without a shirt or shoes. Witnesses later saw Lawman walking shirtless and shoeless in lanes of traffic on Highway 80 going eastbound; one reported that he appeared “not all there.” May Decl. Ex. 15 at CCSF_LAWMAN 000023-33 (Traffic Collision Report). At approximately 10:55 p.m., a pickup truck traveling 40-50 miles per hour struck Lawman, who suffered multiple injuries, including severe traumatic brain injury

. Traffic Collision Report at 32; Katz Decl., June 4, 2014, ¶¶ 4, 7.

Lawman's injuries affected his short term memory. His only memory of the events at the Four Seasons is a vague recollection of being in a hotel, near an escalator. Although he remembers being in a jail cell, he has no memory of being arrested, handcuffed, or questioned at the jail.

2. Lawman's Condition

In his declaration, medical expert Bruce S. Victor, M.D., opines that Lawman has “longstanding bipolar disorder

.” According to Dr. Victor, Lawman was experiencing a manic episode from December 31, 2011 through January 1, 2012, and was not experiencing alcohol intoxication. Victor Decl. Nov. 20, 2015, ¶¶ 3-4, 6.³ Although Defendants do not object to this portion of Dr. Victor's opinion, they counter that psychotherapist Harry Motro, Psy.D., who treated Lawman for one year prior to the incident, never observed Lawman display symptoms of bipolar disorder during treatment. Lawman had disclosed to Dr. Motro that he had previously received a diagnosis of bipolar disorder, and that Lawman disagreed with that diagnosis. Dr. Motro diagnosed Lawman with adjustment disorder.

B. Procedural History

Lawman filed his complaint on December 31, 2013 in San Francisco Superior Court, and successfully moved for appointment of a guardian ad litem. Defendants removed the action to this court on March 13, 2015. In his first...