Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Plaintiff Theresa August and Mark August filed this action under 42 U.S.C. § 1983 18 alleging state and federal claims against the City of Phoenix and its police officers for actions 19 they took while investigating a domestic violence incident. Pending before the Court is 20 Defendant's Motion for Summary Judgment. (Doc.#108). For the reasons stated below, the 21 Motion is granted in part and denied in part. 22 BACKGROUND 23 I. 24 Theresa August lives in a home on McLellan Avenue in North Central Phoenix. 25 (Plaintiff's Statement of Facts [PSOF] ¶3). Ms. August is sixty-nine years old and lives with 26 her nine-year-old grandson, Marcus Dakotah. Ms. August's seventeen-year-old grandson, 27 Sam Hickey, also lives at her home intermittently. (Id. at ¶7). Their house has a front 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) ) Plaintiffs, ) ) vs. ) ) The City of Phoenix, a body politic of the) ) State of Arizona; et al., ) Defendants. ) ) ) Theresa August, a single woman; Mark August,

No. CIV 03-1892-PHX-ROS ORDER

Factual History

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security screen door that leads to an atrium area. Past the atrium is another screen door that leads to the entrance to the home, behind which is a foyer. (Id. at ¶3). On June 10, 2002, a 911 operator received a call from Theresa August demanding that police come and remove Sam Hickey from her house. Ms. August stated that her grandson was attacking her and that she wanted him out of her house. (Defendants' Statement of Facts [DSOF] ¶1). Ms. August also stated that she had bit Sam and thrown a remote control at him, and that her other grandson, Marcus Dakotah, was at the house and had locked himself in a bedroom. (Id. at ¶2). Officers arrived at the scene to find Sam and Ms. August standing outside of the house. Sam explained to Officer Toby Dunn that he and his grandmother had an argument concerning his Internet use. Sam further stated that Ms. August had struck him with a remote control, he had pinned her arms in an attempt to prevent further harm, and that she subsequently bit him and attempted to knee him in the genitalia. Officer Dunn observed the bite marks on Sam's hands. Sam also told Officer Dunn that Marcus was still in the house. (Id. at ¶3). Ms. August demanded that Sam be removed from her property. (PSOF ¶11). Officer Dunn questioned both Sam and Ms. August until additional officers arrived. (Id. at ¶13). Shortly thereafter, Officer Nicholas Lynde arrived. Officer Lynde began to question Ms. August while Officer Dunn spoke with Sam. (Id. at ¶14). After answering a few questions, Ms. August headed back toward her house. She then entered her atrium through her screen door and closed the door behind her. (DSOF ¶4). Officer Lynde tried to speak with Ms. August through the front screen door, during which time Officer Dunn claims that he informed Officer Lynde that a minor child remained inside. ( Id. at ¶5-6). Ms. August then allowed Officer Lynde to enter the atrium. (PSOF ¶24). Once Officer Lynde was inside the atrium, the officers outside the home state that they saw Ms. August close and lock the door. Out of concern for Officer Lynde's and Marcus' safety, the officers pushed the screen door open. (DSOF ¶7, ¶9). Ms. August testified that she was in the process of opening the door when the officers pushed their way in. (PSOF -2Document 130 Filed 09/20/2006 Page 2 of 16

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¶24). According to Defendants, the officers grabbed Ms. August in an effort to detain her and placed her in handcuffs. (DSOF ¶11). A restraining technique known as an "arm bar hold," where the arm of the subject is placed behind the back and parallel to the floor, was used while effecting the arrest of Ms. August. (Id. at ¶13; PSOF ¶41). Sam stated that Ms. August screamed, "My arm! My arm!" as this technique was applied. (PSOF ¶34). As she was placed into the squad car, Ms. August complained that her arm hurt, and the Fire Department was called by the officers to assess her physical condition. (DSOF ¶12). At this point, Mark August drove up to the house. Mr. August is Ms. August's adult son, Marcus's father, and Sam's uncle. Concerned over a potential confrontation, Ms. August shouted at Mark to stay away from Sam. (Id. at ¶14). Mr. August, a high school football coach, stated that he spoke to Sam in the same tone and manner in which he speaks to his football players when they make a mistake. (PSOF ¶53). The officers, who claim they were concerned that Mr. August would cause matters to escalate, detained Mr. August, put him in handcuffs, and placed him in a squad car. (Id. at ¶53; DSOF ¶18). Officers released Mr. August after twenty minutes. Mr. August was cited for obstructing a governmental operation, but the charges were later dropped. (DSOF ¶19). Ms. August was taken to the Arizona Heart Hospital so that her injury could be evaluated, and it was learned that she had suffered a dislocated elbow. (PSOF ¶47). This dislocation had caused a tearing of the lateral collateral ligament, which is when bone fragments are torn from the arm bone where the ligament attaches. (Id. at ¶49). Ms. August was treated and released from custody. (DSOF ¶22). Prosecutors later charged her with disorderly conduct, resisting arrest, and assault. ( Id. at 23). II. Procedural History On September 26, 2003 this matter was removed from Maricopa County Superior Court. (Doc. #1). The action was filed pursuant to 42 U.S.C. § 1983 alleging various state and federal claims against the City of Phoenix, including wrongful arrest and excessive force of Teresa August, and wrongful detention of Mark August. On April 15, 2005 Defendants filed a Motion For Summary Judgment. (Doc. #108). Plaintiffs -3Document 130 Filed 09/20/2006 Page 3 of 16

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responded on May 31, 2005 (Doc. #117), and Defendants replied on June 20, 2005. (Doc. #122). DISCUSSION I. Jurisdiction The Court possesses federal question jurisdiction under 44 U.S.C. § 1331 over the federal civil rights claims and supplemental jurisdiction under 44 U.S.C. § 1367 over the state law claims. II. Summary Judgment Standard A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines which facts are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Also, the dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, -4Document 130 Filed 09/20/2006 Page 4 of 16

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53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). However, because "credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, . . . the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). III. False Arrest Claims A. Legal Standard

Theresa August filed a claim against the City of Phoenix for false arrest under 42 U.S.C. § 19831 alleging a violation of her Fourth Amendment rights, as well as a common law false arrest claim. Both the federal and state law claims require Plaintiff establish that she was unlawfully detained. See Peng v. Penghu, 335 F.3d 970, 976 (9th Cir. 2003) (requiring the plaintiff to prove that she was detained without legal authority in order to establish false arrest); see also Slade v. City of Phoenix, 541 P.2d 550, 552 (Ariz. Ct. App. 1975) (unlawful detention is the essential element of a false arrest claim). In order for the detention to be unlawful, there must be an absence of probable cause. See United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999) (an officer may lawfully arrest a person without a warrant only if the arrest is supported by probable cause); see also Deadman v. Valley Nat. Bank of Arizona, 743 P.2d 961, 967 (Ariz. Ct. App. 1987) (a peace officer may make a warrantless arrest when the officer has probable cause to
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Under this statute, a plaintiff must demonstrate (1) that the City and the named employees were acting under color of law; (2) that the deprivation complained of was a right or interest secured by the federal constitution or laws; (3) that the deprivation complained of was intentional or the reasonably foreseeable result of a voluntary act or omission and (4) that the injury alleged was proximately caused by the defendant. See Monroe v. Pape, 365 U.S. 167 (1961). See also Creamer v. Raffety, 145 Ariz. 34, 42 (Ariz. Ct. App. 1984). -5Document 130 Filed 09/20/2006 Page 5 of 16

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believe that a felony has been committed and that the person to be arrested has committed the felony); see also A.R.S. § 13-3883(1). The test for determining whether probable cause exists is the "totality of the circumstances," which requires "a prudent person [to conclude] that there was a fair probability that [the suspect] had committed a crime." Peng, 335 F.3d at 976; Slade, 541 P.2d at 553 ("Probable cause is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent [person] in believing the accused is guilty of the offense."). B. Analysis With regard to both the federal and state law claims, Defendants argue that the police had probable cause to arrest Ms. August for assaulting Sam based on the following facts: · Sam told the officers that Ms. August had bit him, struck him with a remote control, and tried to knee him in the groin; · · police saw bite marks on Sam; and Ms. August admitted to police that she had bit Sam.

Defendants also state that Plaintiff is precluded from re-litigating the issue of probable cause under the doctrine of res judicata, because the state court made an express finding at the preliminary hearing in Ms. August's criminal matter that probable cause did exist. Plaintiff argues that factual questions remain as to the circumstances leading to the arrest of Ms. August that must be resolved in order to make a determination of probable cause. First, Officer Dunn testified that he did not have probable cause to arrest Ms. August for assaulting Sam at the time he entered the home, but that probable cause developed in the moments thereafter. The testimony of Ms. August, Marcus, Sam and Officer Lynde establishes that Ms. August was arrested immediately upon Officer Dunn's entry into the home. Plaintiff argues that this factual dispute makes it impossible to apply the "totality" test necessary to determine probable cause. Finally, Plaintiff argues that res judicata does not apply, because the state court's finding of probable cause was limited to

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resisting arrest, and not to assaulting Sam, which is the grounds on which Defendants claim probable cause existed. The Court agrees with the Plaintiff that res judicata does not apply. The state court found that probable cause existed as to resisting arrest only and not to the assault of Sam Hickey. In order for res judicata to apply, the issue determined at the preliminary hearing must be identical to the issue of whether there was probable cause to arrest in this case. See Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir. 1994). Further, Ms. August was not convicted of assaulting her grandson. Therefore the existence of probable cause justifying her arrest for assault is at issue. Based on the undisputed evidence available to the officers when they arrived at Ms. August's home, the "totality of the circumstances" establishes sufficient probable cause for the arrest of Ms. August. Ms. August admitted to biting Sam, and her admission was corroborated when the officers observed the bite marks on Sam's body. Also, Sam's statements regarding further attacks by Ms. August gave the officers cause. Once probable cause had been determined, the fact that the officers waited approximately twenty minutes before making the arrest is irrelevant absent some indication that the officers learned during this time period of facts that would vitiate the probable cause. See U.S. v. Ortiz-Hernandez, 427 F.3d 567, 573 (9th Cir. 2005) ("A person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated.").2 Plaintiff has not offered such evidence. Because the officers had probable cause to arrest Ms. August, summary judgment is proper as to both the federal and state false arrest claims. IV. Excessive Force Claims A. Legal Standard

See also Devenpeck v. Alford, 543 U.S. 146, 153 (2004) ("[A]n arresting officer's state of mind . . . . is irrelevant to the existence of probable cause.") -7Document 130 Filed 09/20/2006 Page 7 of 16

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Theresa August asserts a federal claim for excessive force under 42 U.S.C. § 1983 as a violation of her Fourth Amendment rights as well as a state law excessive force claim. The constitutional standard governing a citizen's claim that law enforcement officials used excessive force while making an arrest, investigatory stop, or other "seizure" of his person is the Fourth Amendment's "objective reasonableness" standard. See Graham v. Connor, 490 U.S. 386, 388 (1989). Determining reasonableness under the Fourth Amendment requires a careful balancing of "'the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the governmental interests at stake. See United States v. Place, 462 U.S. 696, 703 (1983). The officers' actions must be "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139 (1978). The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. at 393, 396; see also Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he or she is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. 1, 8-9; see also Graham, 490 U.S. at 396. The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat. See Terry, 392 U.S. at 22-27.3 The test of reasonableness is also the principal consideration under a state law claim of excessive force. Under Arizona law, a defendant is not justified in using force to

A reasonableness inquiry is also part of the analysis of qualified immunity in a § 1983 claim. The doctrine of qualified immunity does not apply if reasonable officers would have known that they were violating clearly established Constitutional rights. See Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991). This issue is more fully addressed below. -8Document 130 Filed 09/20/2006 Page 8 of 16

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resist an arrest by a peace officer "unless the physical force used by the peace officer exceeds that allowed by law." A.R.S. § 13-404(B)(2). An officer can use physical force in arresting a defendant if a "reasonable person would believe that such force is immediately necessary to effect the arrest." A.R.S. § 13-409; see State v. Fontes, 986 P.2d 897, 900 (Ariz. Ct. App. 1998). Arizona law defines the act of resisting arrest as "intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest" by either "using or threatening to use physical force against the peace officer or another; or . . . creating a substantial risk of causing physical injury to the peace officer or another." A.R.S. § 13-2508(A). Therefore, the analysis of the state excessive force claim must focus on the circumstances of the case and a determination of reasonableness in the use of force by the officer. B. Analysis Plaintiff contends that the officers, upon pushing their way into the home, immediately grabbed her, attempted to detain her using the "arm bar hold" technique, and placed her in handcuffs. Plaintiff not only argues that these actions were unreasonable in light of the fact that she had opened the door to let the officers into the home and was not resisting at the time that the force was applied, but also that the nature of the injuries are severe enough to conclude that the officers' force was excessive. Defendants dispute this characterization of the facts. Whether the amount of force used was reasonable is usually a question of fact to be determined by the jury. See White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The nature of the injuries is only one factor when looking at all of the circumstances in a reasonableness determination. See Young v. Rabideau, 821 F.2d 373, 381 (7th Cir. 1987) (considering the nature of injuries relevant to the correctional officer's assessment of the danger posed and the amount of reasonable force to be applied). Although certain facts may indicate as a matter of law whether the force was excessive, -9-

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Eberle v. Anaheim, 901 F.2d 814, 820 (9th Cir. 1990), that is not the case here where the parties dispute facts material to this determination. These facts include whether the officers acted first with the use of force, whether Ms. August was actively resisting arrest, and whether the force used in response to Ms. August's act of resisting arrest was excessive. Summary judgment is not warranted on this claim. See Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991) (holding that summary judgment is not proper on the issue of excessive force where the material facts are in dispute). C. Negligent Injury Ms. August alleges both a federal and state claim against Defendants for negligently injuring her arm. Defendants state that the federal claim will not stand under § 1983, as there is no cause of action for a constitutional negligently inflicted injury. See Daniels v. Williams, 474 U.S. 327, 336 (1986). Furthermore, Defendants argue that a state claim fails under Arizona law, as a party cannot seek liability for a harm suffered as a result of negligence while the plaintiff is attempting to commit a felony, such as resisting arrest. A.R.S. §12-712(A). Plaintiff failed to respond to these arguments in her Response to Defendant's Motion for Summary Judgment. Although Local Rule 7.2(i) permits a Court to deem a party's failure to respond as consent, where it is a motion for summary judgment and the consent would dispose of a claim, the Court must determine whether summary judgment should in fact be granted. See Henry v. Gill, 983 F.2d 943, 950 (9th. Cir., 1993) (reversing trial court's granting of summary judgment pursuant to the local rule allowing for a finding of consent when there was no response to the motion for summary judgment); see also F.R.Civ.P. 56(e). There is no constitutional claim for a negligently inflicted injury under federal law. See Daniels, 474 U.S. at 336. In a § 1983 suit, the plaintiff must still prove an intentional violation of the underlying constitutional right, and mere negligent conduct is not enough to state a claim. See Arlington Heights v. Metropolitan Housing Dev. Corp., - 10 -

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429 U.S. 252 (1977). Where a government official's act causing injury to life, liberty, or property is merely negligent, "no procedure for compensation is constitutionally required." See Daniels, 474 U.S. at 333. Because there is no valid constitutional action for a negligently inflicted injury, summary judgment will be granted on this claim. Ms. August also filed a state law negligent injury claim. A.R.S. § 12-712(A) provides: In any civil action, a defendant is not liable for damages that the plaintiff incurs if the plaintiff is harmed as a result of the negligence or gross negligence of any defendant while the plaintiff is attempting to commit, committing or fleeing from a felony criminal act. Defendant contends that because the state court found that there was probable cause for a charge of resisting arrest against Ms. August, and the act of resisting arrest is a felony under Arizona law, A.R.S. § 13-2508(A), there can be no recovery for a negligent injury that results from the felonious act. This argument is foreclosed by Sonoran Desert Investigations, Inc. v. Miller, 2006 WL 1515589 (Ariz. App. June 2, 2006). In holding A.R.S. § 13-2508(B) unconstitutional, the Arizona Court of Appeals found that the statute essentially codified defenses of contributory negligence and assumption of the risk which should be decided by a jury.4 For these reasons, summary judgment will not be granted on this issue. Although this case involved the constitutionality of A.R.S. § 13-2508(B), the grounds on which the court found section (B) unconstitutional are equally applicable to section (A). Sonoran Desert Investigations, Inc., 2006 WL 1515589 at *4 ("if the conduct which gives rise to the defense [of non-liability] can properly be described as contributory negligence or assumption of risk, according to the supreme court's interpretation of article XVIII, § 5 [in Schwab v. Matley, 793 P.2d 1088, (Ariz. 1990)], the jury must decide whether the defendant is liable."). In diversity cases, federal courts are bound by the decisions of a state's highest court when interpreting state law. Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 865 (9th Cir. 1996). If the state has not addressed the particular issue, a federal court must use its best judgment to predict how the highest court would resolve it "using intermediate, appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance." Id. (quotation omitted). There is no indication that the Arizona Supreme Court would deviate from the principles set forth in Sonoran Desert Investigations. - 11 Document 130 Filed 09/20/2006 Page 11 of 16
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D. Unlawful Detaining Mark August has brought a claim under § 1983 for a violation of his Fourth Amendment rights due to the alleged unlawful detaining by the officers. Defendants have responded by claiming that they were justified in detaining Mr. August while he "cooled down" and they completed their investigation. A detaining or seizure of a person is not a violation of the Fourth Amendment if it is reasonable and justified. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." See Terry v. Ohio, 392 U.S. 1, 9 (1968). In order to justify a brief detention to determine an individual's identity and to maintain the status quo while verifying or dispelling a suspicion that criminal activity may be occurring or about to occur, the standard is a reasonable suspicion based on the totality of the circumstances. See id. at 21. The issue becomes whether the officers are able to point to specific facts which reasonably warrant the intrusion, when taken together with rational inferences from those facts. See id. Reasonable suspicion of criminal activity does warrant a temporary seizure for the purpose of questioning limited to the stop. See United States v. Osborn, 203 F.3d 1176, 1181 (9th Cir. 2000). Construing the facts in the light most favorable to Plaintiff, there is no material issue of fact that the officers had reasonable suspicion to detain Mr. August. The undisputed facts are that Mr. August arrived on the scene and approached Sam Hickey without first speaking to police. He then began to shout at Sam in a stern voice like that reserved for his football players. Ms. August then instructed the officers to keep Mr. August away from Sam, confirming any suspicion they had about Mr. August's intentions. All of these facts justify a brief detention of twenty minutes while officers learned of Mr. August's identity, questioned him, and allowed him to "cool down." Absent an unreasonable seizure, Mr. August's claim fails. Summary judgment will be granted on Mark August's § 1983 claim for unlawful detention. E. Attorney's Fees - 12 -

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Ms. August seeks to recover attorney fees paid in the underlying criminal matter of State of Arizona v. Theresa August, No. CR2003-009751-001 (Ariz. Super. Ct. 2003). Defendants contend that she is barred from recovering these fees, because although 42 U.S.C. § 1988 provides for recovery of attorneys' fees in "any action or proceeding to enforce a provision" of section 1983, the term "proceeding" does not include recovery of fees spent to defend a defendant in a criminal trial. Greer v. Holt, 718 F.2d 206 (6th Cir. 1983). Defendants cite Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994), stating that "attorneys' fees expended in defending a criminal prosecution are not recoverable from the arresting officers in a related § 1983 action if the prosecutor exercised independent judgment in deciding to prosecute." Because Plaintiff has not alleged that the prosecutor acted with anything less than independent judgment, Defendants contend that they cannot meet their burden of proof. Defendants further argue that the only evidence Plaintiff has offered in support of her claim for attorney's fees is a copy of her bank statement indicating a $15,000 withdrawal, and that this evidence alone is insufficient. Plaintiff fails to respond to Defendant's argument that § 1988 does not allow recovery of attorney's fees in this case and Plaintiff cites no case law in support of her claim that she is entitled to them. Indeed, it does not appear from the face of the statutory language that "any action to enforce" can be read to include "any action related to an action to enforce." Greer, 718 F.2d at 208. Although Greer is not binding on this Court, the Ninth Circuit has not declined to follow the Sixth Circuit's reasoning, but has merely distinguished Greer on three separate occasions. In Sloman, 21 F.3d at 1474, the Court held that "[a]ttorneys' fees expended in defending a criminal prosecution are not recoverable from the arresting officers in a related § 1983 action if the prosecutor exercised independent judgment in deciding to prosecute." The prosecutor's judgment will be deemed not independent where the prosecutor "was misled by material omissions or false information given by the arresting officers." Id. In both Barlow v. Ground, 943 F.2d 1132, 1137 (9th Cir. 1991), and - 13 -

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Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988), the Ninth Circuit found that the police reports on which the prosecutors relied contained demonstrable omissions, were contradicted by other police reports, and the independent third party witnesses at the scene contradicted the officers' recollection of events. Plaintiff has not offered such burden, responding only with the argument that whether the officers provided the prosecution with any material omissions or false information remains to be decided. Plaintiff has failed to submit any proof that the officers fabricated evidence, which would raise a genuine issue of material fact on this issue. Summary judgment will be granted on this issue. F. Qualified Immunity Defendants have asserted the doctrine of qualified immunity as an affirmative defense to the § 1983 constitutional claim of excessive force. Under this doctrine, an officer is immune from liability for excessive force where the officer mistakenly believes the amount of force used is appropriate. See Saucier v. Katz, 533 U.S. 194, 202 (2001). The doctrine of qualified immunity does not apply to an officer who, while acting under color of state or federal law, should have known he was violating clearly established constitutional rights. See White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986). To determine whether Defendants are entitled to qualified immunity, the Supreme Court applies a two-part inquiry. First, the court must determine whether a constitutional right has been violated. The second step is whether the right was clearly established. See Saucier, 533 U.S. at 198. "The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted." Id. at 194-195. If not, then summary judgment is appropriate. See id. The reasonableness inquiry for qualified immunity is different from determining whether there was an unconstitutional use of excessive force in that "reasonable mistakes can be made as to the legal constraints on particular police conduct." Id. at 195.

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Assuming that a constitutional violation occurred there is still a genuine issue of fact whether the officers could have believed that detaining him was warranted under the law. Summary judgment will be denied on this issue. See Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991). Accordingly, IT IS ORDERED that Defendant's Motion for Summary Judgment (Doc.#108) is GRANTED on: 1) Teresa August's § 1983 false arrest claim; 2) Teresa August's state law false arrest claim; 3) Teresa August's § 1983 claim for negligent injury; 4) Mark August's § 1983 claim for unlawful detention; 5) Teresa August's claim for attorney's fees in the related criminal action. IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Doc.#108) is DENIED on: 1) Teresa August's § 1983 claim for excessive force; 2) Teresa August's state law claim for excessive force; 3) Teresa August's state claim for negligent injury; 4) Defendant's qualified immunity claim. IT IS FURTHER ORDERED that the Parties shall filed the Joint Proposed Pretrial Order and all Motions In Limine by November 15, 2006. IT IS FURTHER ORDERED that the Final Pretrial Conference is set for December 15, 2006 at 1:30 p.m. DATED this 20th day of September, 2006.

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