Meas v. City and County of San Francisco

• Decision Date: 09 February 2010
• Docket Number: No. C 08-4075 PJH.,C 08-4075 PJH.
• Citation: 681 F. Supp.2d 1128
• Parties: Jonathan MEAS, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
• Court: U.S. District Court — Northern District of California

681 F. Supp.2d 1128

Jonathan MEAS, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

No. C 08-4075 PJH.

United States District Court, N.D. California.

January 28, 2010.

Order Denying Request for Leave to File Motion for Reconsideration February 9, 2010.

John L. Burris, Benjamin Nisenbaum, Law Offices of John L. Burris, Oakland, CA, for Plaintiff.

Meredith Blagden Osborn, Office of the City Attorney, Scott David Wiener, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY

PHYLLIS J. HAMILTON, District Judge.

Defendants' motion for partial summary judgment came on for hearing before this court on January 20, 2010. Plaintiff appeared by his counsel Ben Nisenbaum, and defendants appeared by their counsel Scott Weiner. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion as follows.

BACKGROUND

Plaintiff Jonathan Meas filed this action on August 26, 2008, alleging claims of constitutional violations, under 42 U.S.C. § 1983. Defendants are the City and County of San Francisco ("CCSF" or "the City"); San Francisco Police Chief Heather Fong, in her official capacity; and San Francisco Police Officers Jesse Serna, Gary Moriyama, Eric Valentini, and Scott Korte, in their individual and official capacities.

On Friday, August 26, 2006, at approximately 2:00 a.m., plaintiff was walking with several friends from Zebra Lounge (a San Francisco nightclub, located in the 400 block of Broadway in North Beach). The sidewalks were very crowded. Plaintiff asserts that as he and his friends moved through the crowd, he stepped one foot off the sidewalk to pass the crowd, but then stepped back on to the sidewalk as soon as he could. He claims that he never blocked traffic and never stood in the street. His friends followed a similar path to leave the area.

Plaintiff contends that at one point, as he had stepped off the sidewalk to pass a group of people, he heard his friend Jerry Ly tell him to move, and he also heard the sound of a motor vehicle approaching him from behind. He claims that before he could look behind him, the motor vehicle struck him on the back of the leg above the knee. He asserts that the police vehicle did not warn him by using a horn or siren, or making an announcement over the loud speaker, prior to the impact.

The impact caused him to stumble, and "knocked him off balance."¹ He claims that the vehicle did not stop, and that he quickly turned and kicked at the rear part of the moving vehicle. As soon as he did so, he realized that the vehicle was a police car.² He contends that the police car pulled to a stop about 20 feet further on. The occupants of the police vehicle were Officers Serna and Moriyama. Officer Serna was driving. The officers were headed toward a fight on Broadway that had been reported on the police radio.

In his report of the incident, and in his deposition, Officer Moriyama stated that he first saw plaintiff looking directly at the patrol car, which had its lights flashing and its siren blaring, and then stepped off the curb into the street and walked backward in the direction of the patrol car. According to Officer Moriyama, the patrol car stopped and plaintiff was blocking the passenger-side door.

Officer Moriyama testified that plaintiff was standing in the way of the door, with his back to the vehicle, and did not move aside when Moriyama said, "Police, get out of the way," and opened the door directly into plaintiff. Plaintiff, on the other hand, claims that he heard no such warning, and also asserts that the patrol vehicle was moving when it struck him.

Officer Moriyama also testified that plaintiff did not kick the vehicle before Moriyama exited, but rather after—it was "within a matter of, of seconds of me exiting my vehicle." He testified that plaintiff said, "What the fuck?" and kicked the vehicle ("kicked it hard"), and that he then asked plaintiff, "You think you're a tough guy?" Officer Moriyama continued walking though the crowd, and did not see anything else, including the confrontation between plaintiff and the other officers.

However, Officer Moriyama did later inspect the patrol vehicle, at which point he saw the scuff mark. He did not recall seeing a dent, and conceded that if he had seen a dent, he probably would have noted it in the police report (which he did not do).

Plaintiff claims that after exiting the police vehicle, Officer Moriyama "aggressively" approached him, and that he held up his hands to show that he was no threat to the officer. He testified in his deposition that Officer Moriyama responded by saying, "I'll show you who's a tough guy," or "You think you're a tough guy, huh?" Plaintiff claims that he told Officer Moriyama repeatedly that the police vehicle had struck him.

Officer Valentini testified in his deposition that when he first saw plaintiff, plaintiff was standing out in the street, on the area bordering the parking lane and the traffic lane next to it. The next time Officer Valentini noticed plaintiff, he saw plaintiff turn around and kick the right rear passenger door of the police car with his right foot. He saw "a scuff mark, a black scuff mark" on the door, and after the incident, he saw a "noticeable" dent in the door. Officer Valentini testified that he did not see the door of the patrol car open and strike plaintiff. He did see Officer Moriyama exit the police car after plaintiff had kicked the door.

Officer Korte testified that he saw the patrol car driving extremely close to the curb with its lights, siren, and air horn activated. He did not see the patrol car strike plaintiff. He testified that plaintiff "donkey" kicked the patrol car (facing away from the patrol car, kicked back at the car), and then turned around and took an "aggressive stance" or a "bladed stance. . . one foot was forward, one foot was back, kind of like a boxing stance." He did not see anyone exit the patrol car, and could not recall whether the patrol car was stopped when plaintiff kicked the door.

Officer Korte testified that he began telling plaintiff to back away from the patrol car because there were officers in the car. He claims that plaintiff was not listening to him, and continued "taking an aggressive stance at the car." At this time, Officer Korte considered plaintiff to be under arrest for kicking the vehicle. According to Officer Korte, plaintiff continued ignoring the verbal commands, and so Officer Korte came up behind, grabbed plaintiff's shoulders, and "kind of leg sweeped him down to the ground."

Plaintiff's version is that after he kicked the car, another police officer approached him, and he told the officer that the patrol vehicle had struck him. Plaintiff claims he was respectful in his tone, and that he called the officer "Sir." He denies taking any sort of "fighting stance" or initiating any type of attack on the officer. He states that when yet another officer approached, he also told that officer that the patrol car had struck him. He claims that despite his attempts to explain, and the fact that he posed no threat to anyone, one or more of the officers tackled him (from behind) and threw him to the ground.

According to Officer Korte, no other officer helped him take plaintiff to the ground, and plaintiff did not hit his head on the ground. He stated that both he and plaintiff were on their sides on the ground, and plaintiff was "struggling," when the other officers attempted to detain plaintiff and gain control of his hands.

Officer Valentini testified that he observed Officer Korte put his hands on plaintiff's shoulders, and that plaintiff struggled to pull away from him. At that point, according to Officer Valentini, Officers Valentini and Serna came to Officer Korte's aid, and chased and grabbed plaintiff and took him to the ground. Officer Valentini testified that plaintiff was resisting arrest and refused to be contained, and that he punched plaintiff to the right side of his face.

Plaintiff claims that as he lay on the ground, the defendant officers repeatedly kicked and punched him in the face, head, ears, knees, and shoulder. He reiterates that he did not attack or threaten anyone, and that no reasonable person could have believed he posed a threat to anyone.

Officer Korte testified that once the other officers (presumably, Officers Valentini and Serna) had gained control of plaintiff, he (Korte) stood up, and turned his back on plaintiff in order to maintain crowd control. He stated that while he had his back to plaintiff, he did not see whether the other officers struck plaintiff.

Plaintiff claims that when he was finally able to stand up, he placed his arms behind his back so the officers could not inflict further harm on him, and that the officers then handcuffed him, put him in a patrol wagon, and transported him to Central Station. He asserts that he was arrested on charges of malicious mischief, vandalism to a vehicle, resisting an officer, and battery on an officer. He received some medical attention at the jail, and was released "several hours later."

Plaintiff alleges that he then went to the emergency room at St. Francis Memorial Hospital, where he was evaluated for a potential orbital bone fracture and several other injuries. A laceration to his right eyebrow was glued closed. He asserts that he returned to St. Francis a week later, on September 1, 2006, because he had been having persistent headaches and a continuing pain in his left elbow. He was diagnosed with a fracture of his left elbow. He was working as a baggage handler at the time of the incident, and lost wages as a result of the injury.

The criminal charges were eventually dismissed several months later, following a number of court appearances.

In the original complaint, plaintiff alleged three causes of action under 42 U.S.C. § 1983: (1) a claim that the...