Sepatis v. City and County of San Francisco

• Decision Date: 15 August 2002
• Docket Number: No. C 00-2299 MHP.,No. C 00-1626 MHP.,C 00-1626 MHP.,C 00-2299 MHP.
• Citation: 217 F.Supp.2d 992
• Parties: William James SEPATIS, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
• Court: U.S. District Court — Northern District of California

217 F.Supp.2d 992

William James SEPATIS, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

No. C 00-1626 MHP.

No. C 00-2299 MHP.

United States District Court, N.D. California.

August 15, 2002.

COPYRIGHT MATERIAL OMITTED

George G. Benetatos, Law Office of George G. Benetatos, Steve Lau, Law Offices of Steve Lau, John Houston Scott, The Scott Law Firm, San Francisco, CA, for plaintiff.

William James Sepatis, San Francisco, CA, pro se.

Jason P. Gonzalez, Maxwell S. Peltz, City Attorney's Office, L. Jay Pedersen, Bledsoe Cathcart Diestel & Pedersen LLP, San Francisco, CA, Stuart Charles Gilliam, McNamara, Dodge, Ney, Beatty, Slattery & Pfalzer LLP, Walnut Creek, CA, for defendants.

MEMORANDUM AND ORDER

Cross-Motions for Summary Judgment

PATEL, Chief Judge.

This action involves consolidated lawsuits against the City and County of San Francisco, the San Francisco Police Department, Police Chief Fred Lau, Lieutenant Joseph Dutto, Sergeant William Griffin, and Officers David Parry, Sean McEllistrim, Keita Moriwaki, Robert Deleon, Robert Canedo and Matthew Cole ("defendants"). The related complaints allege five causes of action, including: (1) a federal claim of violation of federal civil rights pursuant to 42 U.S.C. § 1983; and state law claims of (2) negligence, (3) negligent training and supervision, (4) intentional infliction of emotional distress and (5) negligent infliction of emotional distress. Plaintiff's original complaints also raised a related sixth cause of action for malicious prosecution against his neighbors. Plaintiff, William James Sepatis, has since abandoned his state law claims, leaving only a section 1983 claim against the city defendants. Now before the court are the parties' cross-motions for summary judgment on this claim. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court hereby enters the following memorandum and order.

BACKGROUND¹

These consolidated actions challenge two warrantless arrests, occurring on April 22, 1999 and May 24, 1999 respectively.

The first incident occurred on April 22, 1999 when four of plaintiff's neighbors complained to the San Francisco police about his behavior. The neighbors reported that Sepatis was "chanting and screaming in Greek" and playing extremely loud music out of his open windows. The neighbors further reported that Sepatis had shouted "Go back where you came from! Jews!" and "I'm going to execute you!"² This behavior was consistent with plaintiff's prior conduct. In fact, Sepatis had often harassed his neighbors, shouting racial epithets and cursing. The neighbors did not report any history of physical violence, however. Nor did they believe that Sepatis possessed a weapon.

Plaintiff was relatively silent when the police arrived. He did not shout from the window and stopped playing music within minutes of defendant Moriwaki's arrival. Based on the information given by plaintiff's neighbors, however, defendant Dutto decided to arrest plaintiff for making threats. Accordingly, Dutto knocked and announced himself at plaintiff's residence. While Dutto was announcing his presence, Sepatis dropped an odorless liquid on defendant Cole, another officer on the scene.³ Cole did not appear to be in pain or injured; he did not report a burning sensation or any physical complaints. In fact, it does not appear from any evidence in the record that the liquid left even a stain. Rather, co-defendant Moriwaki wiped the liquid from Cole with a Kleenex. Defendants Cole and Moriwaki continued to summons plaintiff at his door, to no avail. Plaintiff again dispensed a clear, odorless liquid from his window. At this time, defendant Dutto kicked open plaintiff's door and entered the house. Defendants ultimately arrested plaintiff for assaulting an officer and threatening his neighbors.

Following the April 22 incident, plaintiff's neighbors sought a temporary restraining order to prevent future disturbances. Also at this time, plaintiff evidenced some suicidal tendencies and was transported to San Francisco General Hospital on a 5150 hold, referring to section 5150 of the California Health and Safety Code which allows for 72-hour evaluation of a person believed to be a danger to himself or others. He was discharged shortly after and apparently renewed his disruptive activities.

On May 24, 1999, one of plaintiff's neighbors contacted the police, reporting that Sepatis was playing loud music in violation of the restraining order. The neighbor contacted the police again one and one-half hours later, withdrawing the complaint. Despite this cancellation, defendants Parry and McEllistrim responded to the call. Upon their arrival, plaintiff's neighbors reported that Sepatis had earlier put a music speaker in his window, faced it toward a neighbor's apartment building and turned up the volume. Plaintiff's house was silent when the officers arrived, however, they decided to speak with plaintiff regarding the prior disturbance. Defendants could view Sepatis through the window near the front door. They noticed that plaintiff was not holding any weapons. Officer Parry did not believe that his safety was in jeopardy. Nor does it appear that the other officers feared for their safety. Nonetheless, in light of the neighbors' complaints, the April 22, 1999 arrest, plaintiff's prior 5150 detention, and incoherent ramblings from the interior of plaintiff's house,⁴ defendant Dutto decided to make a forced entry. Defendants ultimately charged plaintiff with disturbing the peace; violating a court order; and resisting, delaying, or obstructing peace officer duties. Defendants declined to 5150 plaintiff, deciding to wait for further assessment after he was booked.

Plaintiff now challenges each of these warrantless arrests and protective sweeps.

LEGAL STANDARD

I. Summary Judgment

Summary judgment is proper when the pleadings, discovery and affidavits show that there is "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(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.

Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). Nor is it sufficient for the opposing party simply to raise issues as to the credibility of the moving party's evidence. See National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir.1983). If the nonmoving party fails to show that there is a genuine issue for trial, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

On motion for summary judgment, the court does not make credibility determinations, for "the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. Inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. See Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).

II. Qualified Immunity

Qualified immunity shields public officials from liability for civil damages so long as their conduct does "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The rule of qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991).

A court considering a claim of qualified immunity must conduct a two-step inquiry. As a threshold question, the court must determine whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no constitutional right has been violated, there is no need for further analysis. Id. If a constitutional right has been violated, however, the court must next consider whether this right was clearly established. Id.; Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999).

The plaintiff bears the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir.2000); Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir.1992). If plaintiff cannot meet this burden,...