Carr v. Cnty. of San Diego

• Decision Date: 17 September 2021
• Docket Number: 19-cv-1139 JLS (MDD)
• Court: U.S. District Court — Southern District of California
• Parties: WILLIAM CARR, Plaintiff, v. COUNTY OF SAN DIEGO; JEFFREY CHU; JOSEPH MCMANUS; CHRISTOPHER CADIGAN; JASON FERGUSON; ALEXANDER SOLIMAN; and DOES 1-10, inclusive, Defendants.

WILLIAM CARR, Plaintiff, v. COUNTY OF SAN DIEGO; JEFFREY CHU; JOSEPH MCMANUS; CHRISTOPHER CADIGAN; JASON FERGUSON; ALEXANDER SOLIMAN; and DOES 1-10, inclusive, Defendants.

No. 19-cv-1139 JLS (MDD)

United States District Court, S.D. California

September 17, 2021

ORDER (1) GRANTING PLAINTIFF'S MOTION TO STRIKE THE DECLARATION OF DEFENDANTS' POLICE PROCEDURES EXPERT AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

(ECF NOS. 58, 60)

Janis L. Sammartino, United States District Judge

Presently before the Court is Defendants County of San Diego, Jeffrey Chu, Joseph McManus, Christopher Cadigan, Jason Ferguson, and Alexander Soliman's (collectively “Defendants”) Motion for Summary Judgment or in the Alternative Summary Adjudication (“Mot., ” ECF No. 58) and Lodgment of Exhibits (“Defs.' Lodgment, ” ECF No. 58-6), as well as Plaintiff William Carr's opposition thereto (“Opp'n, ” ECF No. 60) and Lodgment of Exhibits (“Pl.'s Lodgment ” ECF No. 61), Defendant's reply in support of its Motion (“Reply, ” ECF No. 64), and Defendants' Errata Regarding Exhibits (“Errata ” ECF No. 65). Plaintiff's Opposition also contains a motion to strike the declaration of Lieutenant Criss Cross (“MTS”). The Court heard oral argument on July 8, 2021. (See ECF No. 71.) Having carefully considered the Parties' arguments, the law, and the evidence, the Court GRANTS Plaintiff's Motion to Strike and GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment as follows.

BACKGROUND

I. Factual Background^[1]

Plaintiff is an insulin-dependent Type 1 diabetic who wears an insulin pump. Declaration of William Carr (“Carr Decl., ” ECF No. 60-1) ¶ 4. On July 15, 2018, at about 5:40 p.m., Plaintiff entered the East Village Asian Diner (the “Restaurant”). Defs.' Lodgment Ex. 22 (“1st Restaurant Video”). Plaintiff sat down at the bar and told one of the Restaurant staff that he needed sugar or food. Pl.'s Lodgment Ex. 6 (“Pl.'s Carr Depo.”) 44:02-06; Carr Decl. ¶¶ 6-7. Margie Sierra, the server, handed Plaintiff a menu. Pl.'s Carr Depo. 44:02-06. Carr tried to look the menu over, but he was too disoriented and confused to read it and kept falling asleep. Id. 44:11-21; Carr Decl. ¶ 7; Errata Ex. 2 (“Defs.' Sierra Depo.”) 15:6-24. Plaintiff does not have continuous recall of what happened while he was at the restaurant; rather, his memory is “flashy.” Carr Decl. ¶ 8; Pl.'s Carr Depo. 44:14-17.

At 6:18 p.m., Ms. Sierra called 911 and reported that a man-Plaintiff-would not leave despite having been asked to leave multiple times. Defs.' Lodgment Ex. 25 (“Sierra 911 Call”). She informed the operator that he was a black male, around 35 years old, weighing about 200 pounds and between 5'10” and 6'0”. Id. She said she had only served him water, that she did not see any weapons on him, and that she thought he was high on drugs. Id.

Ms. Sierra also asked the manager of the Restaurant, Jacob Skoor, to help her in dealing with Plaintiff. Defs.' Sierra Depo. 21:20-22. Mr. Skoor called 911 around the same time that Ms. Sierra did, also asking to have a patron removed who was refusing to leave and who appeared “to be out of his mind” and “on some sort of hallucinogen.” Defs.' Lodgment Ex. 26 (“1st Skoor 911 Call”). Mr. Skoor told the dispatcher he did not see any weapons on Plaintiff and did not think he had been drinking. Id. Mr. Skoor called 911 again about twenty minutes later to report that Plaintiff was still at the Restaurant sleeping at the bar. Defs.' Lodgment Ex. 27 (“2d Skoor 911 Call”). Mr. Skoor was informed that two deputies were en route. Id.

Deputies Chu and Soliman entered the Restaurant at around 6:55 p.m. Defs.' Lodgment Ex. 23 (“2d Restaurant Video”). They spoke with Plaintiff for about ten minutes, trying to get Plaintiff to leave. Defs.' Lodgment Ex. 18 (“Soliman BWC”). Chu asked Plaintiff three times if he needed medical attention, but Plaintiff repeatedly responded with questions such as, “Do I what?” and “I'm asking why?” Id. At around 7:05 p.m., Deputies Ferguson and McManus arrived at the Restaurant. Defs.' Lodgment Ex. 16 (“1st Chu BWC”). About a minute later, Deputy Cadigan entered the Restaurant. Id.

Thereafter, the five deputies arrested Plaintiff. It is at this point that the parties have some divergent interpretations of what happened. However, they agree that McManus approached and told Plaintiff that he was trespassing, that he had to leave, and to put his hands behind his back. Defs.' Lodgment Ex. 13 (“1st Ferguson BWC”); Defs.' Lodgment Ex. 19 (“1st McManus BWC”); Defs.' Lodgment Ex. 7 (“Defs.' McManus Depo.”) 13:1- 16. McManus and Ferguson each grabbed Plaintiff's arms. Pl.'s Lodgment Ex. 1 (“Synced BWC”); 1st McManus BWC; Defs.' McManus Depo. 14:19-22; Defs.' Lodgment Ex. 5 (“Ferguson Depo.”) 31:5-10. Plaintiff's arms were pressed tightly together with his palms facing each other, close to his chest and under his chin. Errata Ex. 1 (“Defs.' Carr Depo.”) 94:5-13; Pl.'s Carr Depo. 91:13-22. Cadigan also grabbed Plaintiff's left arm. Errata Ex. 9 (“Defs.' Cadigan Depo.”) 21:3-4. Chu tased Plaintiff in drive-stun mode three times over a period of ten seconds, each deployment lasting one second. Synced BWC; Pl.'s Lodgment Ex. 2 (“Taser Log”); Defs.' Lodgment Ex. 6 (“Defs.' Chu Depo.”) 116:2- 117:18. Defendants claim that the first three Taser deployments happened while Plaintiff was standing, see Defs.' Chu Depo. 117:10-11, while Plaintiff claims he was pinned to the ground by the second deployment, see Synced BWC, Opp'n at 7 (citations omitted).

Either way, Plaintiff was taken to the ground by Ferguson, who grabbed the back of Plaintiff's neck at the base of his head and pushed down. Synced BWC; Soliman BWC; Defs.' Ferguson Depo. 54:1-16. Ferguson used a mandibular pressure point hold for approximately two seconds. Pl.s' Lodgment Ex. 8 (“Pl.'s Ferguson Depo.”) 65:03-13, 66:10-16; Defs.' Ferguson Depo. 67:2-10. McManus had his hands on Plaintiff's right arm. Defs.' McManus Depo. 28:10-25; Pl.'s Lodgment Ex. 10 (“Pl.'s McManus Depo.”) 33:5-19. Soliman delivered a knee strike to the left side of Plaintiff's face and applied downward pressure to Plaintiff's head for a minute or two to keep him on the ground. Pl.'s Lodgment Ex. 13 (“Pl.'s Soliman Depo.”) 31:21-32:11, 34:04-07, 34:16-35:22. Cadigan had hold of Plaintiff's left arm. Pl.'s Lodgment Ex. 5 (“Pl.'s Cadigan Depo.”) 31:1-11; Defs.' Cadigan Depo. 21:2-9, 32:5-20. While Plaintiff was on the ground and just one second after the third Taser deployment, Chu deployed the Taser in drive-stun mode a final time for five seconds. Taser Log; Synced BWC; Defs.' Chu Depo. 122:2-16.

Ultimately, Cadigan handcuffed Plaintiff, and Deputies McManus, Ferguson, and Cadigan carried him out of the Restaurant by his arms and legs. Defs.' Cadigan Depo. 36:01-10; Defs.' Lodgment Ex. 15 (“Cadigan BWC”). It was at this point that Plaintiff first informed Defendants he was diabetic. Synced BWC; Defs.' McManus Depo. 42:2-7; Defs.' Ferguson Depo. 102:1-3; Errata Ex. 4 (“Defs.' Soliman Depo.”) 37:5-9. Plaintiff was kept restrained in handcuffs outside the Restaurant. Defs.' Soliman Depo. 47:4-5; Defs.' Ferguson Depo. 104:25-105:3; Synced BWC. In fact, Cadigan tightened Plaintiff's handcuffs, causing Plaintiff to cry out “ouch” multiple times and complain to the paramedics that the handcuffs hurt. Synced BWC; Pl.'s Cadigan Depo. 36:11-24.

Once the paramedics arrived, they tested Plaintiff's blood sugar and obtained a reading of 29 mg/dL, which one of the paramedics said was “the lowest I've ever seen [in] someone that's still breathing.” Cadigan BWC; Errata Ex. 10 (“Defs.' Prola Depo.”) 19:4- 7. The paramedics gave Plaintiff oral glucose gel to raise his blood sugar. Cadigan BWC. Plaintiff informed the paramedics that his handcuffs were too tight. 1st Ferguson BWC; Defs.' Prola Depo. 72:13-21. The paramedics performed two pulse motor sensory (“PMS”) tests on Plaintiff-one at that time, and one once Plaintiff was en route to the hospital. Defs.' Prola Depo. 72:13-74:11, Defs.' Lodgment Ex. 21 (“3d McManus BWC”); Declaration of EMT Delane Anthony Moore (“Moore Decl., ” ECF No. 58-5) ¶ 3.

Plaintiff was strapped to a stretcher on his side to accommodate the handcuffs and placed in an ambulance to go to the hospital. 3d McManus BWC; Carr Decl. ¶ 22. McManus accompanied Plaintiff during the ambulance ride. 3d McManus BWC. The ambulance arrived at the hospital at around 7:45 p.m. Id. Ferguson met the ambulance at the hospital. Id. Plaintiff was kept in handcuffs until he was cited and released at the hospital, about 20 to 30 minutes later. Id.; Defs.' McManus Depo. 86:2-7.

Plaintiff was given a Notice to Appear requiring him to appear in court on September 5, 2018, for two misdemeanor criminal charges: (1) trespassing in violation of Cal. Penal Code § 602 and (2) resisting a peace officer in violation of Cal. Penal Code § 148. Carr Decl. ¶ 25. No. criminal charges were ultimately filed. Id. ¶ 29.

The parties agree that Plaintiff suffered abrasions to his back from being tased, pain in his wrist and shoulders from the handcuffs, and back and neck pain. Pl.'s Carr Depo. 153:20-154:23.

II. Procedural Background

Plaintiff initiated this action on June 17, 2019, asserting claims against the County, the San Diego Sheriff's Department Jeffrey Chu, Joe McManus, and unnamed Doe Defendants. See ECF No. 1. On July 10, 2019, the County moved to dismiss the complaint. See ECF No. 3. On September 17, 2019, Chu also moved to dismiss, see ECF No. 8, and on October 15, 2019, McManus also moved to dismiss, see ECF No. 13. On March 4, 2020, the Court denied the motions to dismiss, see ECF No. 19, and the County, Chu, and McManus answered on March...