Robinson v. City of San Bernardino Police Dept., No. CV 96-2539-DT (RC).

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtTevrizian
Citation992 F.Supp. 1198
PartiesAlbert ROBINSON, aka Robby Gibson, Plaintiff, v. CITY OF SAN BERNARDINO POLICE DEPARTMENT, San Bernardino Chief of Police, Sgt. Grzonka, Officer T. Crocker, Officer Ernesto Antillion, Unknown Jailer, Western Nurse Specialist Inc., Western Nurse L. Vielma, Defendants.
Docket NumberNo. CV 96-2539-DT (RC).
Decision Date26 January 1998
992 F.Supp. 1198
Albert ROBINSON, aka Robby Gibson, Plaintiff,
v.
CITY OF SAN BERNARDINO POLICE DEPARTMENT, San Bernardino Chief of Police, Sgt. Grzonka, Officer T. Crocker, Officer Ernesto Antillion, Unknown Jailer, Western Nurse Specialist Inc., Western Nurse L. Vielma, Defendants.
No. CV 96-2539-DT (RC).
United States District Court, C.D. California.
January 26, 1998.

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COPYRIGHT MATERIAL OMITTED

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ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TEVRIZIAN, District Judge.


Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Complaint and other

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papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.

IT IS ORDERED that:

(1) the Report and Recommendation is approved and adopted;

(2) summary judgment is granted for defendant Western Nurse Specialists, Inc. and, there being is no just reason for delay, Judgment shall be entered under Fed.R.Civ.P. 54(b);

(3) summary judgment is granted for defendant Lorraine Vielma and, there being no just reason for delay, Judgment shall be entered under Fed.R.Civ.P. 54(b);

(4) plaintiff's request for sanctions against defendant Western Nurse Specialists, Inc. under Fed.R.Civ.P. 11 is denied;

(5) defendant Western Nurse Specialists, Inc.'s request-for sanctions against plaintiff under Fed.R.Civ.P. 11 is granted, and plaintiff shall pay $420.00 to defendant Western Nurse Specialists, Inc. within thirty (30) days of the date of this Order; and

(6) plaintiff's motion to file an amended complaint and to join new defendants is denied.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dickran Tevrizian, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

BACKGROUND
I

On April 10, 1996, plaintiff Albert Robinson, a state prisoner1 proceeding pro se and in forma pauperis, filed a civil rights complaint under 42 U.S.C. § 1983 against defendants City of San Bernardino Police Department ("defendant City"), San Bernardino Chief of Police, Sgt. Grzonka, Officer T. Crocker, Officer Ernesto Antillion, unknown jailor, Western Nurse Specialists, Inc. ("WNS") (erroneously sued as "Western Nurse Specialist"), and Western Nurse L. Vielma. The plaintiff alleges that on July 3, 1994, following his arrest for second degree robbery, defendants subjected him to a "sexual examination," which was performed in a manner violative of the Fourth Amendment, the Eighth Amendment, the Thirteenth Amendment, and the due process and equal protection provisions of the Fourteenth Amendment. Complaint, at 4-6; Nature of the Complaint ("NOC"), at 1. The examination was conducted by defendant Vielma, while defendants Grzonka and Antillion grabbed plaintiff's legs and defendants Crocker and unknown jailor held plaintiffs arms. NOC at 2. Defendant Vielma also drew blood from plaintiff and put something in his mouth while defendant Grzonka held him. Id. at 2-3. A few days later, plaintiff began to feel "severe pain in his left leg and noticed swelling and what appeared to be bruises." Id. at 3. He saw a doctor, who discovered that plaintiff's left leg had been held and squeezed so severely that "blood clotted." Id. At a later date, while exercising, the pain, swelling and spots reappeared on plaintiff's left leg and "as of this date the[re] still appears to be a permanent disfiguration of there [sic] skin tissue from the initial pressure applied when plaintiff[']s legs were held." Id. at 3-4.

In his "request for relief," plaintiff seeks compensatory damages in the amount of $1 million dollars from each of defendants Chief of Police, Grzonka and Vielma and $500,000.00 from each of defendants Crocker and Antillion; punitive damages in the amount of

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$15 million dollars from each of defendants City and WNS; and a temporary restraining order.

On August 30, 1996, defendants City, Ernesto Antillion, Timothy Crocker, San Bernardino Chief of Police and Sgt. Grzonka (collectively "City defendants") answered the complaint and raised numerous affirmative defenses. In their answer, City defendants admit, inter alia, that, on July 3, 1994, they were employed as police officers by defendant City, the plaintiff was arrested for attempted robbery and underwent a physical examination to obtain evidence but resisted defendants during that examination. On November 25, 1996, defendants WNS and Vielma, separately, answered the complaint and raised affirmative defenses. Defendant Vielma admits that on July 3, 1994, she performed a "sex kit" examination on plaintiff, a suspect then in custody at the San Bernardino Police Department, but denies any allegations concerning misconduct while performing the examination.

II

On July 2, 1997, defendant WNS filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, claiming that it cannot be held liable under 42 U.S.C. § 1983 because it did not personally participate in the alleged civil rights violation and it cannot be held vicariously liable for the alleged acts of defendant Vielma who was an independent contractor working as a phlebotomist. The plaintiff was given notice of the requirements to oppose a motion for summary judgment under Fed.R.Civ.P. 56, as required by Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988). On July 30, 1997, the plaintiff filed an opposition to defendant WNS's summary judgment motion and requested judgment for the plaintiff as a matter of law. Defendant WNS filed a reply to the plaintiff's opposition on August 22, 1997.

On September 3, 1997, the plaintiff moved for sanctions under Fed.R.Civ.P. 11 against counsel for defendant WNS contending that defendant WNS's reply to his opposition to its motion for summary judgment was misleading and frivolous. On September 10, 1997, defendant WNS filed an opposition to the plaintiff's motion for sanctions, and filed its own request for sanctions under Fed. R.Civ.P. 11 against the plaintiff.

On November 3, 1997, defendant Vielma filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, claiming that she relied in good faith on the actions of the police officers who were directing her in the conduct of the "sex kit" examination of the plaintiff. On December 9, 1997, the plaintiff filed his opposition to defendant Vielma's motion for summary judgment, and also filed a "separate statement of genuine issues."

III

The summary judgment documents establish the following facts: Defendant Vielma is a certified phlebotomist employed as an independent contractor by defendant WNS, a California corporation that employs phlebotomists and registered nurses to, inter alia, draw blood and take urine and swab samples. Declaration of Lorraine Vielma ("Vielma Decl.") ¶ 2; Declaration of Faye Otto-Batiste ("Batiste Decl.") ¶¶ 3, 5, 12a; Plaintiff's Motion in Opposition to Defendant WNS's Motion for Summary Judgment ("Opposition"), Exh. I. On April 18, 1992, defendants Vielma and WNS entered into an independent contractor agreement, which provided that defendant Vielma would render certain services on behalf of defendant WNS, including collecting blood and urine specimens, collecting evidence from rape suspects ("sex kit" exams), removing taser darts, and making court appearances. Batiste Decl. Exh. A at 1. The independent contractor agreement could be terminated by either defendant Vielma or defendant WNS with thirty days prior written notice, and by defendant WNS without notice for unsatisfactory performance or violations of defendant WNS's rules, policies or procedures. Batiste Decl. Exh. A at 1.

Under the agreement between defendants Vielma and WNS, defendant Vielma retained the sole right to control the manner in which her services were performed; however, defendant WNS retained the right to generally supervise defendant Vielma's work to insure conformity with WNS policies and procedures. Batiste Decl. Exh. A at 2. Additionally, defendant Vielma was free to practice her

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profession for others when not performing work for defendant WNS. Batiste Decl. Exh. A at 2-3.

Defendant Vielma was paid by defendant WNS by the job performed; she did not have a regular salary. Batiste Decl. ¶ 12e, Exh. A at 2. Defendant Vielma received no employee benefits from defendant WNS, and she was required to withhold her own payroll and self-employment taxes. Batiste Decl. ¶ 12k, Exh. A at 2-3. Defendant Vielma was also required to maintain her own malpractice insurance and to provide transportation to and from the sites at which she performed her work. Batiste Decl. ¶ 12f, 1, Exh. A at 2. Defendant Vielma did not have an office at WNS; instead defendant WNS and/or local law enforcement agencies would contact her via a beeper to request her services. Batiste Decl. ¶ 12b-d.

On July 3, 1994, the plaintiff was arrested for the attempted robbery of an elderly man in the parking lot of a restaurant. Declaration of Timothy Crocker ("Crocker Decl.") ¶ 5. Defendant Crocker received information that the plaintiff was on parole and that a no bail warrant for violation of parole had been issued. Crocker Decl. ¶ 6. Further, the plaintiff fit the physical description of a suspect in a kidnapping/sodomy that had taken place in the same area the day before the attempted robbery. Crocker Decl. ¶ 7; Opposition, Exh. K. It was also ascertained that the method of operation in both the attempted robbery and the kidnapping/sodomy were similar in that the suspect said he had a gun but did not show it. Crocker Decl. ¶ 8; Opposition, Exh. K.

On July 3, 1994,...

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  • Ambrose v. Coffey, No. CIV S-08-1664 LKK/GGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 31 Marzo 2010
    ...defense "depends on the subjective state of mind of the private person." Robinson v. City of San Bernardino Police Dept., 992 F.Supp. 1198, 1207 (C.D.Cal.1998) (internal citation omitted). The court's earlier finding that an objectively reasonable prosecutor could have believed MU......
  • Dye v. Commc'ns Ventures Iii, LP (In re Flashcom, Inc.), Nos. SA CV 11–1883 FMO, ED CV 13–0114 FMO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 4 Diciembre 2013
    ...third formal motion filed in the bankruptcy court seeking the very same relief. 21See Robinson v. City of San Bernardino Police Dept., 992 F.Supp. 1198, 1208 (C.D.Cal.1998) (plaintiff sanctioned under Rule 11 for filing a motion to harass and needlessly increase the cost of litigation). As ......
  • Van Blaricom v. Kronenberg, No. 47666-1-I.
    • United States
    • Court of Appeals of Washington
    • 15 Julio 2002
    ...on the plaintiff. See Wyatt, 994 F.2d at 1119; see also, Jordan, 20 F.3d at 1276; cf. Robinson v. San Bernardino Police Department, 992 F.Supp. 1198, 1207 (C.D.Cal.1998). Since Wyatt, some courts have also suggested the availability of a good faith defense and additional burdens, such as pr......
  • Mejia v. City of New York, Civil Action No. 96-CV-3007(DGT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 5 Septiembre 2002
    ...of Canton and finding no evidence of failure to train by private mental health center); Robinson v. City of San Bernardino Police Dep't, 992 F.Supp. 1198, (C.D.Cal.1998) (plaintiff failed to prove that nursing company was liable for inadequate training because he only addressed the training......
  • Request a trial to view additional results
14 cases
  • Ambrose v. Coffey, No. CIV S-08-1664 LKK/GGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 31 Marzo 2010
    ...a good faith defense "depends on the subjective state of mind of the private person." Robinson v. City of San Bernardino Police Dept., 992 F.Supp. 1198, 1207 (C.D.Cal.1998) (internal citation omitted). The court's earlier finding that an objectively reasonable prosecutor could have believed......
  • Dye v. Commc'ns Ventures Iii, LP (In re Flashcom, Inc.), Nos. SA CV 11–1883 FMO, ED CV 13–0114 FMO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 4 Diciembre 2013
    ...third formal motion filed in the bankruptcy court seeking the very same relief. 21See Robinson v. City of San Bernardino Police Dept., 992 F.Supp. 1198, 1208 (C.D.Cal.1998) (plaintiff sanctioned under Rule 11 for filing a motion to harass and needlessly increase the cost of litigation). As ......
  • Van Blaricom v. Kronenberg, No. 47666-1-I.
    • United States
    • Court of Appeals of Washington
    • 15 Julio 2002
    ...on the plaintiff. See Wyatt, 994 F.2d at 1119; see also, Jordan, 20 F.3d at 1276; cf. Robinson v. San Bernardino Police Department, 992 F.Supp. 1198, 1207 (C.D.Cal.1998). Since Wyatt, some courts have also suggested the availability of a good faith defense and additional burdens, such as pr......
  • Mejia v. City of New York, Civil Action No. 96-CV-3007(DGT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 5 Septiembre 2002
    ...of Canton and finding no evidence of failure to train by private mental health center); Robinson v. City of San Bernardino Police Dep't, 992 F.Supp. 1198, (C.D.Cal.1998) (plaintiff failed to prove that nursing company was liable for inadequate training because he only addressed the training......
  • Request a trial to view additional results

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