Castellanos v. United States, Case No.: 18cv2334 JM(AGS)

• Citation: 438 F.Supp.3d 1120
• Decision Date: 10 February 2020
• Docket Number: Case No.: 18cv2334 JM(AGS)
• Parties: Jesus CASTELLANOS and Raquel Castellano, Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Southern District of California

438 F.Supp.3d 1120

Jesus CASTELLANOS and Raquel Castellano, Plaintiffs,

v.UNITED STATES of America, et al., Defendants.

Case No.: 18cv2334 JM(AGS)

United States District Court, S.D. California.

Signed February 10, 2020

Eugene G Iredale, Lauren Ida Freidenberg, Julia Yoo, Iredale & Yoo, APC, San Diego, CA, for Plaintiffs.

U S Attorney CV, Samuel William Bettwy, David B Wallace, U S Attorney's Office Southern District of California, San Diego, CA, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

Hon. Jeffrey T. Miller, United States District Judge

Presently before the court is Defendants the United States of America and Michael Hedlund's motion for summary judgment (Doc. No. 32). A hearing on the motion was held on January 13, 2020. For the reasons set forth below, the motion is denied.

I. BACKGROUND

This lawsuit stems from an incident that occurred at the Calexico Port of Entry ("POE") on December 17, 2017. Upon applying for admission to the United States, Plaintiffs and their adult son, Marco, were referred to secondary inspection so that the vehicle they were traveling in could be inspected. (SAC at ¶ 17; Doc. No. 33-5, "Jesus Castellanos Dep.," 13¹ ; Doc. No. 33-7, "Marco Castellanos Dep.," 5.) The Plaintiffs were sent to secondary inspection because a database had indicated to the primary inspector that Marco was on supervised release in connection with a drug smuggling conviction. (SAC at ¶ 17; Doc. No. 33-4, Miguel Salcedo Decl. at ¶¶ 3, 4; Marco Castellanos Dep. 5.)

While Plaintiffs were being held in the secure secondary waiting area, California Border Patrol ("CBP") Canine Program Officers were conducting a "sensitive border security operation" referred to as a "canine block blitz" which involved inspecting all southbound vehicles and targeting a vehicle that was stopped directly across from Marco and Jesus Castellanos. (Doc. No. 33-9, "Eugene Stewart Dep.," 5, 8.) The entire incident within the secondary waiting area was videotaped, although an unobstructed and clear view of the encounters between Jesus Castellanos and all of the CBP Officers is not presented. Not surprisingly, the parties present differing accounts on certain aspects of the incident.

Marco began using his mobile phone, and as he was approached by CBP Officer Martinez, put his phone back in his pocket. (Jesus Castellanos Dep. 15² ; Marco Castellanos Dep. 6-7; Eugene Stewart Dep. 5.) Officer Martinez and Marco exchanged words regarding Marco's use of the phone. (Jesus Castellanos Dep. 16; Marco Castellanos Dep. 8, 9; see generally Doc. No. 47-2, Ex. 4, Report of Investigation ("R.I.").) Officer Martinez believed Marco was recording what was occurring at secondary and told Marco that he needed Marco to hand over his phone. (Id.) Although Marco himself disputes that he ever stated he would not turn over his phone and simply requested a supervisor be called, others claim that Marco refused to give his cellphone to Officer Martinez. (See Jesus Castellanos Dep. 17; Marco Castellanos Dep. 9; Eugene Stewart Dep. 5-6; see generally R.I.)

Officer Martinez entered the secure waiting area and attempted to arrest Marco. Marco did not acquiesce to being handcuffed, telling Officer Martinez not to touch him. (Jesus Castellanos Dep. 17; Marco Castellanos Dep. 10.) Officer Garneau arrived to assist Officer Martinez in restraining Marco. At this point, Plaintiffs Jesus and Raquel Castellanos approached Marco and Officers Martinez and Garneau. Jesus Castellanos placed his right hand into the general vicinity where Officer Garneau and his son were standing. (Doc. No. 33-1 at 2, screenshot of surveillance video, 21:04:08.471.) Jesus Castellano maintains he was reaching to touch his son's arm while simultaneously telling him to calm down, and that all he was doing was trying to ease the tension. (Jesus Castellanos Dep. 18, 19.) Marco stated that he heard his father telling him "Calmate hijo," (relax son), while putting his hand on his shoulder. (Marco Castellanos Dep. 11.) In contrast, CBP Officer Hedlund claims he saw Jesus Castellano place his hand on Officer Garneau's left arm and interpreted this as an assault on his fellow officer, "[I]t's an absolute no-no in my book, I mean you don't touch an officer." (R.I. at 29; see also id. at 21.) Officer Garneau would later recount that Marco screamed and hollered the entire time, which caused his father to respond to the area who then screamed and hollered. (R.I. at 8.) The video image is not clear as to who Jesus Castellano is reaching for.

At this point, CBP Officer Pelayo reported that he moved over to the secondary inspection area and guided Jesus Castellanos back with his left hand, over the top of the fence that is securing the secondary waiting area. (R.I. at 7.) The video confirms this. Then Officer Hedlund entered the secondary area and moved directly toward Jesus Castellanos. He pushed Jesus Castellanos backward and away from the ruckus involving his son. (Doc. No. 33-1 at 3, screenshot of surveillance video, 21:04:16.545.) Officer Hedlund recounted that while pushing him backward, "Jesus Castellanos became physically assaultive toward him and began to grab and scratch CBPO Hedlund's face." (R.I. at 21.) Jesus Castellanos and Officer Hedlund disagree as to whether any verbal commands were issued by Officer Hedlund while he was pushing Jesus Castellanos backward.

Officer Hedlund then turned Jesus Castellanos toward the bench and sat him down. Jesus Castellanos' left hand/fist was up near the right side of Officer Hedlund's face. (Doc. No. 33-1 at 3, screenshot of surveillance video, 21:04:19.748.) Officer Hedlund later reported that Jesus Castellano had him "by his throat and began to hit him." (R.I. at 22.) Officer Hedlund struck downward on Jesus Castellanos' left arm with his right arm. Jesus Castellanos maintained his grip on Officer Hedlund's uniform shirt. (Doc. No. 33-1 at 5, screenshot of surveillance video, 21:04:20.282; Doc. No. 33-1 at 6, screenshot of surveillance video, 21:04:20.416.) Officer Hedlund then punched Jesus Castellanos twice under the left arm in his upper left side, causing Jesus Castellanos to release his grasp of Officer Hedlund's uniform. The internal investigation report states that "Jesus Castellanos' right arm can be seen holding onto CBPO Hedlund's left arm." (R.I. at 3.) Jesus Castellanos claims that he may have touched Officer Hedlund when he was "moving my hand out of desperation that I am going to fall down" backward. (Jesus Castellanos Dep. 21.) This initial interaction lasted approximately 9 seconds.

Officer Hedlund then attempted to handcuff Jesus Castellanos by turning Jesus Castellanos to his right. CBP Officer Zaragoza arrived to help. The parties dispute whether Jesus Castellanos resisted being handcuffed. Plaintiff claims that he did not struggle or resist arrest. (Jesus Castellanos Dep. 22.) Defendant contends that the video shows "Jesus Castellano then positioned his left leg in an apparent attempt to stand up as the two CBP officers were trying to handcuff him in a seated position. The two CBP officers therefore turned Jesus Castellanos face down onto the bench to handcuff him." Doc. No. 33 at 13. (See also Doc. No. 33-1 at 7, screenshot of surveillance video, 21:04:26.955; Doc. No. 33-1 at 8, screenshot of surveillance video, 21:04:41.837.) Officers Garneau, Bustillo, Zaragoza and Guerrero reported that Jesus Castellanos was physically and verbally non-compliant. (R.I. at 8, 9, 10, 15.) The video illustrates that Jesus Castellanos ended up face down on the bench, with CBP Officer Guerrero also assisting in cuffing Jesus Castellanos. The image of Mr. Castellanos is obscured from view, but Plaintiff maintains that he was punched 6-7 times after the handcuffs were on him and his right arm was twisted. (Jesus Castellanos Dep. 23.) It takes approximately 32 seconds to place the handcuffs on Jesus Castellanos.

Afterward, Jesus Castellanos complained of right elbow pain and was transported to El Centro Regional Medical Center. An x-ray was negative for fracture of the elbow

and neither rib fractures or fractures of the pneumothorax were found. (Doc. No. 33-1 at 15, 22, 25, 26.) An X-ray of the elbow scan two days later showed no signs of fracture but were "suggestive of an occult fracture around the elbow joint" and a CT scan of the chest revealed "minimally displaced ribs." (Id. at 43-46.) No injuries to Jesus Castellanos' left arm were indicated. Jesus Castellanos suffers from diabetes and takes blood thinners. (Jesus Castellanos Dep. 3.)

On October 10, 2018, Plaintiffs filed suit in district court pursuant to 28 U.S.C. §§ 1331, 1346(B) and 1391(b) alleging that Defendants violated their civil rights and committed torts against them. (Doc. No. 1.) The Second Amended Complaint was filed on October 7, 2019, (Doc. No. 29), wherein Plaintiff Jesus Castellanos asserts two "Bivens claims" against Defendant Hedlund: (1) for Excessive Force in violation of his Fourth Amendment Right to be free from the use of excessive force and; (2) Unlawful Detention/False Arrest in violation of his Fourth Amendment Right to be free from unreasonable seizure and unlawful arrest. In addition, Jesus Castellanos brings claims against the United States pursuant to pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for Assault, Battery, and False Imprisonment and both Plaintiffs assert claims for Negligence and Intentional Infliction of Emotional Distress under the Act. Plaintiff Jesus Castellanos also brings a Bane Act claim for violation of California Civil Code § 52.1.

II. LEGAL STANDARDS

A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a...