Opinion
G047972
04-09-2014
MICHAEL H. FERRARO, Plaintiff and Appellant, v. CHRISTINE CHANG, Defendant and Respondent.
Jeffrey S. Benice for Plaintiff and Appellant. Lawrence Beach Allen & Choi, David D. Lawrence, Christina M. Sprenger and Daniel S. Cha for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2011-0046475)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Affirmed.
Jeffrey S. Benice for Plaintiff and Appellant.
Lawrence Beach Allen & Choi, David D. Lawrence, Christina M. Sprenger and Daniel S. Cha for Defendant and Respondent.
Plaintiff Michael H. Ferraro (Ferraro) filed a lawsuit against Orange County Deputy Sheriff Christine Chang (Chang) alleging she used excessive force during his arrest by placing handcuffs on him too tightly. The superior court granted Chang's motion for summary judgment. We affirm.
I
FACTS
Background
Ferraro sued the County of Orange, the Orange County District Attorney, the Orange County Sheriff, and Chang, a deputy sheriff, for violation of his Fourth and Fourteenth Amendment rights. He alleged he had been the subject of false arrest, excessive force, and was maliciously prosecuted in violation of the Fourth and Fourteenth Amendments. After two rounds of demurrers, Chang was the sole remaining defendant on the second amended complaint. She subsequently filed a motion for summary judgment, at which point Ferraro announced he was abandoning his false arrest and malicious prosecution claims, leaving only his claim for use of excessive force. The court granted Chang's motion and entered judgment in her favor. Ferraro filed a timely notice of appeal.
Evidence Admitted on the Summary Judgment Motion
A. Defense Evidence
On the evening of July 19, 2000, Chang was dispatched to a residence in Lake Forest to investigate a 911 call about child abuse. She spoke with Ferraro's twin brother Martin, who said Ferrero had been to his residence for dinner earlier in the evening. According to Martin, while at the dinner table, Ferraro grabbed Martin's son Eric by the throat and choked Eric for 15 to 20 seconds, releasing him only after Eric lost consciousness. Eric had difficulty walking after the incident and appeared disoriented.
When Martin spoke with Chang about the incident, he told Chang he wanted Ferraro prosecuted. Eric confirmed Martin's statements about the incident and added that he attempted to get Ferraro to stop choking him by tapping Ferraro's arm, but Ferraro would not stop. Eric said he eventually passed out and was nauseous as a result of the assault. Chang observed fresh bruising on Eric's neck. Chang also spoke with other witnesses who observed the assault, Karen Fovos, and Eric's grandmother. Both confirmed the assault.
Chang drove to Ferraro's residence and contacted Ferraro. She told him she wanted to hear his version of the events. Ferraro said he had grabbed Eric's upper torso in an effort to "straighten him out" and discipline him. Like the witnesses at Martin's house, Ferraro did not say Eric attempted to assault him. Chang arrested Ferraro for assault and battery (Pen. Code, §§ 240, 242) and child abuse (Pen. Code, § 273a). Ferraro conceded that but for the statements of his brother Martin and Fovos, there would have been no investigation and he would not have been arrested by Chang.
While Ferraro was in the back of Chang's patrol car, he complained the handcuffs hurt his wrists. Approximately three minutes after his initial complaint, Chang loosened them "as much as was practical," given officer safety concerns. She said that at no time did Ferraro display "any indication that he was physically injured, had any physical limitations, or was in pain." She did not observe any bruising, swelling, or any other manifestation of injury to his wrists. She then transported defendant to jail. All suspects transported in the back of patrol cars are secured by handcuffs. Chang did not participate in the filing of criminal charges and had no contact with the prosecutor who filed misdemeanor charges against Ferraro.
B. Plaintiff's Evidence
Ferraro testified in his deposition that he complained three or four times about the tightness of the handcuffs. Chang loosened the right handcuff after she indicated she wanted him to cooperate with her. After she loosened the right handcuff, Ferraro asked her to loosen the left handcuff. She said she would not because she had "been on this call for too long."
Ferraro said he had suffered an injury to his right hand and wrist, but after the injury subsided, he was able to play racquetball "and things of that nature." He believes he "possibly" reinjured his right wrist as a result of this incident. Although Ferraro claimed to have permanent nerve damage to his left thumb, the court sustained Chang's objection to that evidence.
II
DISCUSSION
"The purpose of summary judgment is to provide courts a procedural tool to eliminate those 'cases in which there is no ascertainable issue of fact to be tried. [Citations.]' (Barnes v. State Bd. of Equalization (1981) 118 Cal.App.3d 994, 1001.) '[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) A cause of action is meritless if '[o]ne or more of the elements of the cause of action cannot be separately established . . .' (Code Civ. Proc., § 437c, subd. (o)(1)), or the defendant has established an affirmative defense to the plaintiff's causes of action (Code of Civ. Proc., § 437c, subd. (o) (2))." (Baughman v. Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1445.)
In ruling on a summary judgment motion, the court is required to consider all the evidence presented by the parties, less any evidence excluded as a result of the court sustaining a party's objection(s). (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526.) On a defense motion for summary judgment, the defendant bears the initial burden of present facts negating one or more elements of each cause of action or demonstrating a complete defense to each cause of action. If the defendant makes the requisite showing, the burden shifts to the plaintiff to present facts that establish a triable issue as to one or more material facts. (Baughman v. Walt Disney World Co., supra, 217 Cal.App.4th at p. 1445.) A plaintiff cannot rely on allegations in the complaint to carry his burden; evidence must be produced. (Code of Civ. Proc., § 437c, subd. (p)(2).) Should the plaintiff fail to establish a triable issue of material fact, the defendant is entitled to summary judgment. (Baughman v. Walt Disney World Co., supra, 217 Cal.App.4th at p. 1445.)
We review de novo a trial court's order granting summary judgment. (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 641.) Thus, we consider all the evidence offered below except evidence excluded by the trial court. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) A party's failure to challenge the correctness of the court's evidentiary rulings waives the issue and we consider the trial court's evidentiary rulings proper. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.) Finally, because our review is de novo, we affirm the court's decision if it is correct on any ground, even if that ground was not considered by the court. (Lujano v. County of Santa Barbara (2010) 190 Cal.App.4th 801, 806.)
"To state a claim under [42 U.S.C. section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. [Citations.]" (West v. Atkins (1988) 487 U.S. 42, 48.) A claim of excessive force is based in "the Fourth Amendment's prohibition against unreasonable seizures of the person." (Hansen v. Black (9th Cir. 1989) 885 F.2d 642, 645.) "[O]verly tight handcuffing can constitute excessive force. [Citations.]" (Wall v. County of Orange (9th Cir. 2004) 364 F.3d 1107, 1112.)
Ferrero argues Chang's motive for not loosening one of the handcuffs was in effect to punish him because she had been "been on this call for too long." However, a plaintiff's claim for damages under 42 U.S.C. section 1983 for injuries sustained as a result of a law enforcement officer's alleged use of excessive force "are properly analyzed under the Fourth Amendment's 'objective reasonableness' standard." (Graham v. Conner (1989) 490 U.S. 386, 388.) Consequently, we judge the reasonableness of the force used "from the perspective of a reasonable officer at the scene." (Id. at p. 396.) In other words, "the question is whether the [officer's] actions are 'objectively reasonable' in light of the facts and circumstances confronting [her], without regard to [her] underlying intent or motivation." (Id. at p. 397.)
Here, Chang was investigating an act of violence. She had been told by multiple witnesses and the victim that Ferraro grabbed the 13-year-old victim and choked him until he lost consciousness. She had also been informed Ferraro had weapons at his residence. Chang put handcuffs on defendant when she arrested him and drove him to the Orange County jail. Ferraro conceded all suspects transported in the back of patrol units are secured by handcuffs and that Chang drove him to the Orange County jail, where he was booked and processed.
An arrestee's complaint, by itself, about handcuffs being too tight does not require a law enforcement officer to loosen the handcuffs. "[A] police officer need not credit everything a suspect tells him. [Citation.] This idea is especially true when the officer is in the process of handcuffing a suspect." (Rodriguez v. Farrell (11th Cir. 2002) 294 F.3d 1276, 1278.) Not all refusals to loosen handcuffs are objectively unreasonable. (Santiago v. Blair (8th Cir. 2013) 707 F.3d 984, 991 [even assuming injury to plaintiff's wrist, no evidence officer deliberately disregarded need]; Howard v. Kansas City Police Dept. (8th Cir. 2009) 570 F.3d 985, 999, fn. 14 [failure to loosen handcuffs in response to complaint "does not necessarily violate the Fourth Amendment"].) Were the rule otherwise, the safety of law enforcement officers would be endangered because all an arrestee would have to do in order to increase his chances of escaping from the handcuffs would be to complain about their tightness, and the officer would have to loosen the handcuffs. To support an excessive force claim based on overly tight handcuffs, there must have been some objective indication of injury or pain observable by the law enforcement officer. (Hansen v. Black, supra, 885 F.2d at p. 645; Santiago v. Blair, supra, 707 F.3d at p. 991.) Objective indications of excessive tightness may include signs of bruising, redness, swelling, discoloration, dislocation, lacerations to the wrist, indentations in the skin, or signs of pain exhibited by the suspect. Unlike the fresh bruising Chang observed on Eric's neck shortly after Ferraro choked him, there is no evidence Ferraro's wrists were bruised or otherwise exhibited objective indications they were injured when he complained of the tightness of the handcuffs. Indeed, Chang's statement that Ferraro did not "display any indication that he was physically injured, had any physical limitations, or was in pain" was uncontradicted. The record contains no evidence from which the court could have inferred Chang was objectively aware the handcuff she did not loosen was on too tight, other than Ferraro's unsupported statement. It appears Ferraro did not seek medical attention while he was in jail either. Thus, an "objectively reasonable police officer[] could have believed that [she was] not using excessive force. . . ." (McGruder v. Heagwood (8th Cir. 1999) 197 F.3d 918, 920.) Ferraro's mere complaint of tightness is not sufficient to demonstrate Chang's failure to loosen one of the handcuffs was objectively unreasonable. As Ferraro did not introduce any evidence supporting an inference that a reasonable officer would have known she was using excessive force and no medical evidence of an injury, the court did not err in granting Chang summary judgment.
III
DISPOSITION
The judgment is affirmed. Chang shall recover her costs on appeal.
MOORE, J. WE CONCUR: O'LEARY, P. J. RYLAARSDAM, J.