Slama v. City of Madera, 1:08-cv-810 AWI GSA

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Docket Number1:08-cv-810 AWI GSA
Decision Date25 June 2012

OFFICER SHEKIANIAN, and DOES 1 through 100, Defendants.

1:08-cv-810 AWI GSA


Dated: June 25, 2012


(Doc. No. 53, 57, 108)

This case stems from the arrest of pro se Plaintiff Anthony Slama ("Slama") by Madera Police Officers Josh Chavez ("Chavez") and Shant Sheklanian ("Sheklanian")1 for violation of California Penal Code § 148(a)(1). Slama has brought suit in this Court under 42 U.S. C. § 1983 and alleges four violations of the Fourth Amendment against the City of Madera ("the City"), Chavez, and Sheklanian. The Court previously granted two summary judgment motions in favor of Defendants, and closed the case. However, on September 12, 2011, the Court granted Slama's Rule 60 motion and reopened the case on the grounds that Slama's counsel had essentially abandoned him by not filing oppositions to the summary judgment motions. The Court vacated the two summary judgment orders, permitted Slama to represent himself in this matter, and gave him the opportunity to file an opposition to Defendants' motions. The Court has now received Slama's opposition and Defendants' reply. After considering the initial moving papers, as well as the recent opposition and reply, the Court will grant in part and deny in part Defendants' motions.

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On December 20, 2005, around 1:30 a.m., officers Chavez and Sheklanian observed Slama walking on the south side of East Central Avenue and "D" Street around 1:30 a.m.3 See DUMF 1; DSUMF's 2, 3; PRDSUMF's 2, 3. This area is known for drug activity. See Chavez Depo. 20:20-24. The officers were in a marked police vehicle. See DSUMF 4. The officers shined a spotlight on Slama, turned their vehicle around, and drove their vehicle toward Slama. See Slama Dec. (Doc. No. 110) at ¶ 17. Slama was wearing pleated pants, a leather jacket, black dress shoes, and had a red igloo lunch pail strapped around his shoulder. See Slama Depo. 35:23-.36:25. Slama was not walking in the shadows when the officers observed him. See PUMF 1.

The officers exited their vehicle quickly and issued an order for Slama to stop. See Slama Dec. an ¶ 18. Slama heard the officers come very quickly/run towards him. See id. at ¶ 19. When Slama heard the officers' command to stop, he complied, stopped walking, kept his back to the officers, and did not turn around. See id. at ¶¶ 20, 21; Slama Depo. 43:12-44:17.

Sheklanian then went to Slama's left side. See Slama Depo. 44:19-20. Sheklanian told Slama that he was going to search Slama for weapons, and then immediately grabbed Slama's left wrist. See id. at 44:22-45:13; Slama Dec. ¶ 22. Sheklanian did not ask Slama for permission to search his person for weapons, but grabbed Slama's wrist and moved the wrist towards the middle of Slama's back. See Slama Depo. 44:25-46:1.

Within one or two seconds later, Chavez came to Slama's right side. See Slama Depo.

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46:4-6. Chavez told Slama that he wanted to see Slama's other hand, and then grabbed Slama's right hand. See id. at 46:7-11. Slama's right hand was empty and opened when Chavez grabbed it. See id. at 46:25-47:7. As Chavez took Slama's right hand, Chavez lunged Slama's hand/arm upward and slightly outward, which caused Slama's body to "jackknife" and forced Slama to go down on his knee. See id. at 46:20-47:25. Slama heard Chavez say, "I got him," and then Chavez got on Slama's back and placed a choke hold on Slama.4 See id. at 48:6-16; Slama Dec. ¶¶ 24, 26. Slama began to lose consciousness as a result of the choke hold, and Chavez rolled Slama to the ground. See id. at 51:1-6, 52:2-4. Chavez got off Slama's back, and Slama was nearly laying flat on the ground. See id. 51:9-16. Slama reached for his neck, and heard one of the officers say "down, down, down," or "get down." See id. Slama did not try to get up from the ground. See id. 53:3-5. As Slama heard the officers telling him "down," Chavez deployed a taser on Slama. See id. at 53:1-24. Slama was on his stomach and the officers did not warn him that they would deploy the taser. See id. Slama felt the taser application. See id. at 53:23-54:6. Only one taser application was utilized against Slama. DSUMF 14.

After the taser application, Slama was temporarily incapacitated on his stomach. See Slama Depo. 53:17-54:6. Slama was then picked up and placed in the back of the police car without further incident. See id. at 54:16-56:7. Slama was arrested for violation of Penal Code § 148(a)(1) - resisting, delaying or obstructing an officer. DFUMF 1. During the encounter of December 20, 2005, Slama did not consent to being searched and did not resist the officers. See Slama Dec. ¶¶ 25, 29; Slama Depo. 44:5-47:17, 52:9-53:22, 99:20-100:20. The Penal Code § 148(a)(1) charge was subsequently dropped on May 2, 2008. See DSUMF 16.

The City Police Department has a POST Perishable Skills Program regarding Arrest and Control. DFUMF 10. The City has a POST Perishable Skills Program regarding Tactical

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Firearms. DFUMF 11. The City's police officers receive training on the necessary tactical knowledge and skills to safely and effectively arrest and control a suspect. DFUMF 12. The City Police Department's officers receive training on the necessary firearms tactical knowledge. DFUMF 13. For example, Sheklanian has received at least 158 hours of training. DFUMF 14. This includes 134 hours of POST certified training. Id.

The City Police Department has a Manual which covers Use of Force, Deadly Force Review, Shooting Policy, Leg Restraint Device and Control Devices and Techniques. DFUMF 15. The City Police Department Policy does not contain a policy or procedure that permits the use of excessive force by its officers in violation of the Constitution. DFUMF 16.


Summary judgment is appropriate 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(c); 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 bears the 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); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). 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; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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

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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. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). 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 Companies, 210 F.3d 1099, 1102-03 (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 & Marine, 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) (quoting Fed. R. Civ. Pro. 56(e)).

The evidence of the opposing party is to be believed, and all reasonable 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; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, 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...

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