Holcomb v. Ramar
| Decision Date | 20 October 2015 |
| Docket Number | CASE NO. 1:13-CV-1102 AWI SKO |
| Court | U.S. District Court — Eastern District of California |
| Parties | HARVEY HOLCOMB, Plaintiff v. JERRY RAMAR, et al., Defendants |
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This is a civil rights case that arises out of a confrontation between Plaintiff Harvey Holcomb ("Holcomb") and members of the City of Modesto Police Department, Defendants Jerry Ramar ("Ramar"), Ben Kroutil ("Kroutil"), and Joseph Bottoms ("Bottoms").1 Holcomb alleges claims under 42 U.S.C. § 1983 and 42 U.S.C. § 12132 against the Defendants. Defendants move for summary judgment on all claims alleged against them. For the reasons that follow, Defendants' motion will be granted in part and denied in part.
Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bearsthe initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899(9th Cir. 2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. "If conflicting inferences may be drawn from the facts, the case must go to the jury." Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir. 2003). Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.
On May 7, 2012 in the afternoon, Holcomb was driving his Toyota Rav4 in Modesto after having visited his workers' compensation attorney. See Holcomb Depo. 79-81. At the time, Holcomb was suffering from severe orthopedic and autoimmune disorders that severely limited and hindered his mobility/ability to walk. See id. at 83-86. Holcomb's step-son, Bryan Turner ("Turner"), was a passenger in the Toyota and was there to assist Holcomb in ambulating. See id. at 81:10-25. Holcomb had a wheelchair in the back of the Toyota, and the wheelchair was leaning up against the rear window in plain sight. See Holcomb Dec. ¶ 2.
The same day, Ramar was working as an undercover officer as part of a drug enforcement unit. See DUMF 1. Ramar was dressed in plain clothes and was driving an unmarked police vehicle. DUMF 2. At about 4:30 p.m., Ramar began to make a left turn to leave the Modesto Police Department parking lot. See id. As Ramar was exiting the parking lot, he noticed a Toyota Rav4 (which was being driven by Holcomb) traveling towards him. DUMF 3. Holcomb was traveling 25 mph or less. See Holcomb Depo. 97:25-98:5. Because Ramar pulled out in front of Holcomb, Holcomb slammed on his brakes to avoid hitting Ramar. See Holcomb Depo. 104:1-8. Ramar stared at Holcomb with a smirk and a strange look, and Holcomb swore at Ramar and made a rude gesture. See Holcomb Depo. 105-110. After Holcomb "flipped off" Ramar, the look on Ramar's face changed and it looked like Ramar "snapped." See id. at 111:9-24. Ramar pulled out of Holcomb's path, and Holcomb drove ahead to a stop sign. See DUMF's 5, 6; PRDUMF 5, 6. As a result of the sudden stop, Turner's cellphone flew from his lap and went under the seat.3 See Holcomb Depo. 114:21-25.
Holcomb stopped at the stop sign, and remained at the stop sign for only a few seconds. See Holcomb Depo. 115:12-25. A car was coming or had pulled up to the stop sign when Holcomb moved; Holcomb did not want to block the road.4 See id. Turner was unable to get his cellphone. See id. at 114:21-25. Holcomb pulled forward, pulled to the right shoulder, see id., and stopped his car within a 18 inches of the curb, see Turner Depo. 18:13-21,5 so that Turner could retrieve his cellphone. See Holcomb Depo. 114:21-15. Holcomb's car was parallel to the curb, but it was occupying the space of more than one marked diagonal parking space. See Holcomb Depo. 117:13-20; Ramar Dec. ¶ 4.
Ramar made a u-turn, stopped his car in the intersection and behind Holcomb, and exited his vehicle. See Ramar Dec. ¶ 5; Ramar Depo. 212:24-214:19. As Turner opened his door, Holcomb looked in his side mirror and saw a man with his back against the Toyota, creeping towards Holcomb. See Holcomb Depo. 117-122. The man creeping along the side of the Toyota was the driver who had pulled out in front of Holcomb, i.e. Ramar. See id. at 119:20-24. Ramar was wearing nothing that would have identified him as a police officer. See id. at 123:16-21; Turner Depo. 22:20-24. Kroutil arrived and immediately came up beside Ramar. DUMF 11.
Based on the expression on Ramar's face, Holcomb believed that Ramar was going to attack him, so Holcomb unbuckled his seat belt, opened the car door, and put one foot onto the ground in order to attempt to defend himself. See Holcomb Depo. 124:6-23, 129:10-14, 133:18-134:9. Holcomb noticed other officers arriving at the scene heading towards him. See id. at 131:13-22. Officers then grabbed Holcomb by his neck, throat, and hair (and anywhere else that they could get a hold of), and forcibly pulled Holcomb out of his car in such a manner that Holcomb believed that he was being attacked.6 See id. at 129:10-20; Turner Depo. 22:10-19. Turner testified that the man who was walking along the side of the car "beat the shit out of [Holcomb]." Turner Depo. 22:10-19. Holcomb could not make out who was grabbing and pulling him out of his car. See Holcomb Depo. 135:17-22. Holcomb saw other police officers arriving and yelled "I won't resist" and "I am not resisting." Holcomb Depo. 133:8-13. Turner yelled at the officers that Holcomb was disabled and was not resisting. See id. at 137:7-19. Once the officers drug Holcomb out of his car, they placed him in control holds, and began to walk him towards the back of his car. See id. at 138:3-19. Holcomb was taking small steps and officers were partially supporting Holcomb's weight. See Kroutil Depo. 223:7-224:24. The officers then slammed Holcomb on the hood of a police car, and pinned Holcomb down, applied additional compliance holds to Holcomb's wrists, arms, and head/face, and struck Holcomb between five and...
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