Henderson v. County of Los Angeles, B209871 (Cal. App. 4/29/2009), B209871

• Decision Date: 29 April 2009
• Docket Number: B209871
• Parties: BILL HENDERSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

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BILL HENDERSON, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, et al., Defendants and Respondents.

B209871

Court of Appeals of California, Second Appellate District, Division Five

April 29, 2009

Not to be Published in the Official Reports

Appeal from an order of the Superior Court of Los Angeles County, No. BC323154, Joseph Kalin, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, §6 of the Cal. Const.) Affirmed.

Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi and Chijioke O. Ikonte, for Plaintiff and Appellant.

Coleman & Associates, John M. Coleman and Charles K. Collins, for Defendants and Respondents.

TURNER, P. J.

I. INTRODUCTION

Plaintiff, Bill Henderson, appeals from a judgment and a cost award following a directed verdict in favor of defendant, Thomas Simpson, a Los Angeles County deputy sheriff. The pertinent portion of the second amended complaint alleges excessive force was used in violation of plaintiff's civil rights. (42 U.S.C.¹ § 1983 (section 1983).) We affirm.

II. BACKGROUND

A. The Second Amended Complaint

The second amended complaint alleges that plaintiff was injured by Los Angeles County Sheriff's Department deputies on January 10, 2003. (The incident at issue actually occurred in January 2004.) It is alleged that Deputy Simpson and Deputies Dexter Carter and Pauline Panis approached plaintiff in sheriff's cars. Deputy Simpson then battered, pepper sprayed, kneed, kicked, and repeatedly punched plaintiff without cause. Deputy Simpson is alleged to have placed plaintiff in a choke hold. The hold choked the air out of plaintiff's lungs. Deputy Simpson held plaintiff's arms. This allowed other deputies to continue to strike plaintiff on his head and face. Plaintiff further alleges that: he was beaten to unconsciousness; then he was handcuffed and placed in a patrol car. Because he was lapsing in and out of consciousness, he was later hospitalized. The second amended complaint contains causes of action for violations of section 1983 under a number of theories: excessive force (first); excessive force as a matter of policy pursuant to Monell v. New York Dept. of Social Services (1978) 436 U.S. 658, 691 (second); conspiracy to torture and maim (third); reckless indifference (fourth); reckless indifference pursuant to Monell (fifth); and racial profiling (seventh). The second amended complaint also contained a conspiracy to interfere with civil rights claim in violation of section 1985(3) (sixth). On March 25, 2008, plaintiff dismissed the second, fifth, sixth, and seventh causes of action; his Monell and profiling based claims. On March 26, 2008, the matter proceeded to a jury trial on the first (excessive force), third (conspiracy to maim), and fourth causes of action (reckless indifference).

B. The Excessive Force Evidence

1. The emergency telephone call

Deanna Dube made the emergency telephone call. There had been gang problems in the neighborhood prior to the incident involving plaintiff. Around 5 a.m., she heard very loud noises coming from outside her house on Avis Avenue. She looked out the window and saw plaintiff and Mark Howell fighting in the middle of the street. According to Ms. Dube, plaintiff and Mr. Howell were shouting at each other, pushing and shoving, and occasionally hugging. Then one of the men would push the other away and they would shout some more and the language got very graphic. She heard a lot of words like the "N" word, "Fuck you," and "Son of bitch." She watched them for about five minutes and decided to call the emergency operator when she heard someone shout: "You know, I'm your brother. I've got blood on me. I'm your brother." She may have heard, "I'm covered with blood or there is blood on me." One of the reasons she decided to summon the authorities was that she thought there were two car loads of gang members. The dispatcher relayed that there was a "415(g)" meaning a disturbance in violation of Penal Code section 415 involving gang members. The dispatcher also stated "Two unknown vehicles filled with male . . . blacks fighting in the middle of the street . . . ." After the police arrived, Ms. Dube left the window for a few minutes. She observed three figures sort of fall to the ground. She heard someone say, "Calm down, Calm down, over and over and over just calm down." She thought she heard someone say, "Just do what they said."

2. The testimony of Yesenia Lopez, Mr. Howell, and plaintiff

a. Ms. Lopez's testimony

Ms. Lopez resided on Avis Avenue in Lawndale with her parents. In January 2004, Ms. Lopez was plaintiff's girlfriend. Although the two of them have not been a "couple" since September 2006, Ms. Lopez is still a good friend of plaintiff. On January 10, 2004, sometime early in the morning, plaintiff was outside her home. Plaintiff had called to say he was coming to pick up Ms. Lopez. Plaintiff arrived at her home with Mr. Howell. Mr. Howell was plaintiff's best friend. Ms. Lopez worked with plaintiff and Mr. Howell at a bank. Plaintiff and Mr. Howell were standing in the middle of the street arguing with each other. Ms. Lopez asked them what they were arguing about but the two of them ignored her. Ms. Lopez soon saw a patrol car down the street from her home. Deputy Panis was in the patrol car. A second patrol car arrived with Deputies Baxter and Simpson. The three deputies got out of their patrol cars. The three deputies approached plaintiff and Mr. Howell who were still arguing. According to Ms. Lopez, plaintiff and Mr. Howell never fought with each other; they just argued.

Deputies Pauline Panis and Dexter Baxter approached Mr. Howell. Deputy Simpson approached plaintiff. The deputies separated plaintiff and Mr. Howell. Ms. Lopez was standing closer to Mr. Howell than to plaintiff. Deputy Simpson spoke to plaintiff. According to Ms. Lopez, plaintiff was ordered to put his hands behind his back. She saw Deputy Simpson reach for his handcuffs. Plaintiff put his hands behind his back. Plaintiff was instructed to put his hands behind his back. She testified, "And at that time [plaintiff] turned around — tried to turn around and look behind him so see who was standing there." Ms. Lopez testified that Deputy Simpson got control of plaintiff's left hand. She agreed the following described plaintiff's reaction, "And he turned around to look at like he was trying to find out who was behind his back . . . ." Ms. Lopez testified that, as the turning movement occurred, plaintiff's elbow then made contact with Deputy Simpson. And this occurred as plaintiff turned around to look at Deputy Simpson. Ms. Lopez was asked whether she was familiar with what is characterized in basketball as throwing an elbow. Ms. Lopez did not characterize plaintiff's movement with his elbow as being that flagrant.

Deputies Baxter and Panis began to assist Deputy Simpson. Deputies Baxter and Panis began hitting plaintiff. She did not see plaintiff hitting or kicking any of the deputies while he was on the ground. Ms. Lopez asked the two deputies to stop hitting plaintiff.

When the paramedics arrived, they put an oxygen mask and a neck brace on plaintiff. She saw the paramedics give an icepack to one of the officers to put on his knuckles. When Ms. Lopez visited plaintiff in the hospital, she could not "even recognize him" because: his face was swollen; he had cuts on his lips; one of his eyes was shut completely; the other eye was really swollen; he had tubes in his nose and mouth and wore a neck brace.

Ms. Lopez admitted that immediately after the incident she told Sergeant Christian Anderson that she saw plaintiff "resisting" being handcuffed. According to Ms. Lopez, she was in shock while she was being interviewed. A videotape of the January 10, 2004 interview of Ms. Lopez with Sergeant Anderson was shown to the jury. Ms. Lopez stated that plaintiff and Mr. Howell were arguing with each other in the street. When the deputies arrived, they tried to handcuff plaintiff and Mr. Howell. She stated: "I guess they were trying to . . . put them in handcuffs, and I guess he hit the deputy or something. Like, trying to resist him, I guess." She told Sergeant Christian: "He was trying to resist them, and then he hit them then . . . [¶] . . . they handcuffed him. . . . Like, he try to push himself away . . . ." Plaintiff was pushed to the ground in Ms. Lopez's view because he would not submit to handcuffing. She eventually saw Deputy Baxter kicking and hitting plaintiff. Deputy Baxter kept hitting and kicking plaintiff.

b. Mr. Howell's testimony

Mr. Howell and plaintiff have been friends since 1994 when they were in high school. They worked together at a bank as proof operators. On January 9, 2004, plaintiff worked at the bank as a lead proof operator at a bank. They worked together on January 9, 2004, from 5 p.m. until 12 midnight. Plaintiff finished work at about 12:30 a.m. on January 10, 2004. The two walked to a nearby bar and drank liquor and beer. They drank a "French Connection" which is half Grand Marnier and half Hennessey plus about three beers. When the bar closed at 2 a.m., the two left and went to their cars which they had left at the bank. They then drove in separate cars to Ms. Lopez's home where the two began having an argument. Mr. Howell probably called plaintiff a "fucking nigger" during the argument. Mr. Howell said their voices were raised but plaintiff kept trying to hug Mr. Howell saying the two were brothers. Mr. Howell kept pushing plaintiff away. Mr. Howell slipped and fell at one point scraping his hand. Mr. Howell did not know how he got blood on his face that was dripping during a videotaped interview immediately after the incident. The only injury was to his hand. The two argued all the time but had never hit one another.

Mr. Howell did not hear or see the deputies approach them. When the officers arrived, they separated the two men. The officers then asked the men to put their...