United States District Court

For the Northern District of California

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 Plaintiff’s complaint also named the City of Crescent City, Officer Dominic Mello, and Officer

Eric Capon as defendants. Plaintiff subsequently stipulated to the dismissal of these defendants as a

result of a settlement. The County and Sgt. Scott are the only remaining defendants.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIAN STROM,

Plaintiff,

 v.

CITY OF CRESCENT CITY, et al.,

Defendants. /

No. C 08-04708 SI

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

Defendants County of Del Norte and A’lissa Scott have filed a motion for summary judgment

which is currently set for hearing on June 4, 2010. Pursuant to Civil Local Rule 7-1(b), the Court finds

this matter appropriate for resolution without oral argument and hereby VACATES the hearing. Having

considered the papers submitted and for good cause shown, the Court GRANTS in part and DENIES

in part defendants’ motion.

BACKGROUND

Plaintiff Brian Strom brings this action under 42 U.S.C. § 1983 against the County of Del Norte

(“the County”) and Sergeant Scott.1

 Plaintiffs’ claims arise from an altercation between plaintiff and

various law enforcement officers on the night of July 21, 2007. On that night, plaintiff was driving his

car with his girlfriend and five children as passengers. First Amended Complaint (“FAC”) ¶ 14; Capon

Report, Mitchell Decl. Ex. A, at 14. Crescent City Police Officer Eric Capon noticed that the vehicle’s

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 California Vehicle Code § 27150(a) provides: “Every motor vehicle subject to registration shall

at all times be equipped with an adequate muffler in constant operation and properly maintained to

prevent any excessive or unusual noise.”

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 The evidence in the record does not indicate the basis for this prior warrant.

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muffler was extremely loud and attempted to pull plaintiff over for violating California Vehicle Code

§ 27150(a).2 Capon Report at 12. According to Officer Capon’s report of the incident, plaintiff failed

to pull over after the officer activated his emergency lights, and a chase ensued. Id. Eventually, plaintiff

lost control of the vehicle and it skidded to a stop. Id. at 13. 

Plaintiff got out of the car and began to run away. Id.; FAC ¶ 16. He was pursued on foot by

Officer Capon. After several chases and struggles, Crescent City Police Officer Mello arrived on the

scene and took up the chase with the help of a police dog. Capon Report at 13; Mello Report, Mitchell

Decl. Ex. F, at 18. Strom knocked Officer Mello down and lay on top of him. Mello Report at 18-19.

Officer Capon deployed his Taser against plaintiff and eventually succeeded in controlling plaintiff and

pinning him to the ground. Capon Report at 13; Mello Report at 19.

Officer Capon called for emergency backup from the Sheriff’s Department, and Sgt. Scott and

several other deputies arrived on the scene shortly thereafter. Scott Report, Mitchell Decl. Ex. H, at 1.

According to Officer Capon and Sgt. Scott, plaintiff continued to resist arrest, and both officers

deployed their Tasers. Capon Report at 13-14; Scott Report at 1. In her report of the incident, Sgt. Scott

stated that she used her Taser a total of three times before the officers succeeded in handcuffing plaintiff.

Scott Report at 1. She stated that she warned plaintiff before each deployment of the Taser that she

would shock him if he did not stop resisting arrest. Id. According to plaintiff, however, Sgt. Scott used

her Taser on him five to ten times even after he was cuffed and did not warn him before each use. Strom

Depo., Galipo Decl. Ex. A, at 97:18-98:8, 112:1-7, 113:21-23. Eventually, the officers succeeded in

handcuffing plaintiff and arrested him for resisting arrest, evading a peace officer, assaulting a peace

officer, and on an outstanding arrest warrant issued by the Del Norte County Superior Court.3

Plaintiff filed this action on October 10, 2008 and filed an FAC on December 31, 2008. In the

FAC, plaintiff alleges claims against Sgt. Scott and the County for violation of his Fourth Amendment

rights, for assault and battery, and for negligence. Plaintiff alleges that Sgt. Scott’s repeated use of the

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Taser caused him to suffer physical, mental and emotional injuries, including “heart problems, muscle

spasms, anxiety, depression, sleeplessness, and lost concentration.” FAC ¶ 22. He seeks damages for

medical costs and pain and suffering, punitive damages against Sgt. Scott, and attorneys’ fees and costs

of suit. Presently before the Court is defendants’ motion for summary judgment. 

LEGAL STANDARD

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the initial

burden of demonstrating the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). The moving party has no burden to negate or disprove matters on which the non-moving

party will have the burden of proof at trial. The moving party need only demonstrate that there is an

absence of evidence to support the non-moving party’s case. See id. at 325.

The burden then shifts to the non-moving party to “set out ‘specific facts showing a genuine

issue for trial.’” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party

must “do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence

of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could

reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

In deciding a summary judgment motion, the court must view the evidence in the light most

favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Id.

However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise

genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d

730, 738 (9th Cir. 1979).

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DISCUSSION

Although defendants initially sought summary judgment on behalf of both Sgt. Scott and the

County, defendants conceded in their reply brief that plaintiff has raised material issues of fact with

respect to his claims against Sgt. Scott. This includes plaintiff’s First Cause of Action for Fourth

Amendment violations as well as his Third and Fourth Causes of Action for assault and battery and

negligence, for which Sgt. Scott is sued on an individual basis and the County is sued under a theory

of respondeat superior liability. Accordingly, the motion for summary judgment is DENIED as to those

causes of action, and the remainder of this order will focus on whether the County is entitled to

summary judgment on plaintiff’s Second Cause of Action, brought against the County pursuant to

Monell v. Department of Social Services of New York, 436 U.S. 658 (1978).

I. Plaintiff’s Monell Claim

A plaintiff who seeks to state a Section 1983 claim against a county may not sue on the basis of

respondeat superior liability, but must sue under Monell by alleging that he or she has suffered a

constitutional violation as a result of a county policy, custom, or practice. Price v. Sery, 513 F.3d 962,

966 (9th Cir. 2008) (“[M]unicipalities may be held liable as ‘persons’ under § 1983 ‘when execution

of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury.’”) (quoting Monell, 436 U.S. at 694).

To succeed in proving his claim against the County, plaintiff must show that, in using her Taser, Sgt.

Scott was acting in accordance with a County policy or custom authorizing or condoning the use of

excessive force. Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986). 

The County has submitted a copy of its Taser Guidelines, which require an officer who intends

to use a Taser to “(a) provide the individual with a reasonable opportunity to voluntarily comply [and]

(b) provide other deputies and individuals with warning that a Taser may be deployed.” Taser

Guidelines, Ex. D to D’Arcy Decl., at Bates Nos. 396. The Guidelines state that deputies “may use the

Taser when circumstances known to the individual deputy at the time indicate that the application of

the Taser is reasonable to subdue . . . [a] violent or physically resisting subject,” but caution that the

Taser “shall not be used to torture, psychologically torment or inflict undue pain on any individual.”

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Id. at 397. Finally, the Guidelines instruct deputies to “give additional consideration” to the

appropriateness of deploying a Taser against an individual who is handcuffed or otherwise restrained.

Id.

Plaintiff does not allege that the County’s policy was itself constitutionally deficient, but rather

alleges that Sgt. Scott acted pursuant to an unwritten practice or custom permitting the deployment of

a Taser in contravention of the written policy. See FAC ¶ 31 (alleging that the County has “adopted a

practice of the use of excessive force” by “routinely permitting and ratifying the use of excessive

force”).

Because plaintiff sues based on custom or practice, his claim “may not be predicated on isolated or

sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency

that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911,

918 (9th Cir. 1996). 

Plaintiff has not presented any evidence showing the development of such a custom or practice.

Plaintiff does not even address his Monell claim in his opposition brief. Even assuming that Sgt. Scott

used excessive force in violation of the Taser Guidelines on the night in question, there is no evidence

that the County routinely permits or ratifies the use of such force, as plaintiff claims. Absent such

evidence, there is no material dispute in the record regarding whether any use of excessive force by Sgt.

Scott was carried out pursuant to County policy or custom. Accordingly, the Court finds it appropriate

to grant summary judgment in the County’s favor as to plaintiff’s Second Cause of Action.

II. Plaintiff’s Request for Sanctions

In his opposition to defendants’ summary judgment motion, plaintiff requests sanctions against

defendants based on their alleged spoliation of evidence consisting of electronic usage data downloaded

from Sgt. Scott’s Taser. This data would show the number of times Sgt. Scott used her Taser on the

night in question, as well as the duration of each use. Sgt. Scott stated at her deposition that, after she

used her Taser against plaintiff, she contacted the patrol sergeant responsible for downloading Taser

usage data and requested a printout. Scott Depo., Galipo Decl. Ex. B, at 14:22-15:7. After she received

the printout, she used it to write her report of the incident, including then number of times she used her

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 Defense counsel represented during Sgt. Scott’s deposition that counsel and the Sheriff’s

Department are currently looking for the data and will produce it to plaintiff if it is found. Id.

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Taser and the duration of each use. Id. at 15:11-22. Because Sgt. Scott prepared her incident report on

the computer, she did not attach the hard copy of the data to the report. Id. at 16:7-8. Instead, she

placed the data printout in a case file folder for filing by the records department. Id. at 16:11-14. The

data was apparently lost at some point after that. Id. at 16:19-25.4

Plaintiff requests sanctions in the form of a default judgment of liability, or in the alternative,

an adverse inference instruction at trial. As an initial matter, plaintiff’s request for sanctions is

procedurally defective. Civil Local Rule 7-8(a) states that any request for sanctions must be filed as a

separately noticed motion. Failure to comply with this rule provides a sufficient basis for summary

denial. See, e.g., Cecena v. Allstate Ins. Co., No. 05-3178, 2007 WL 4259460, at *3 (N.D. Cal. Dec.

3, 2007); Aranda v. Nth Telecom, Inc., No. 06-4738, 2007 WL 2343902, at *2 (N.D. Cal. Aug. 15,

2007); Daub v. Eagle Test Sys., Inc., No. 05-1055, 2006 WL 3544257, at *2 (N.D. Cal. Dec. 5, 2006).

Even assuming plaintiff’s request had been properly filed, the request fails on the merits. To

levy sanctions due to spoliation of evidence, the Court must find that the offending party destroyed

evidence with notice that the evidence was potentially relevant to pending litigation. Leon v. IDX Sys.

Corp., 464 F.3d 951, 959 (9th Cir. 2006). Plaintiff requests either an adverse inference instruction or

a default judgment of liability. 

To impose an adverse inference instruction, the Court must find: (1) that the spoliating party had

an obligation to preserve the evidence; (2) that the evidence was spoliated with “a culpable state of

mind”; and (3) that the evidence was relevant to the moving party’s claim. In re Napster, Inc. Copyright

Litig., 462 F. Supp. 2d 1060, 1078 (N.D. Cal. 2006) (citation omitted). There is no dispute that data

reflecting the manner in which Sgt. Scott deployed her Taser would be relevant to plaintiff’s claims.

However, plaintiff provides no evidence of the timing of the data loss in order to show that the data was

destroyed after defendants had notice of this litigation, nor does he provide any evidence that Sgt. Scott

or the County destroyed the data with a “culpable state of mind.” In particular, plaintiff provides no

evidence to contradict Sgt. Scott’s account of her actions with respect to the Taser data, nor to show that

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other Sheriff’s Department staff lost or destroyed the evidence with a “culpable state of mind” and with

notice of the litigation. Absent any evidence showing that the loss was the result of something other

than an accident or innocent mistake, an adverse inference instruction is unwarranted. See Med. Lab.

Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, 824 (9th Cir. 2002) (“When relevant evidence is

lost accidentally or for an innocent reason, an adverse evidentiary inference from the loss may be

rejected.”).

In order to impose the more drastic sanction of dismissal or default judgment against the

spoliating party, the Court must find that the spoliation was due to “willfulness, fault, or bad faith.”

Leon, 464 F.3d at 958. Having failed to show that the loss of data was the result of a “culpable state of

mind,” plaintiff necessarily fails to show that the loss was willful or due to bad faith. Accordingly,

plaintiff’s request for sanctions is DENIED in its entirety.

CONCLUSION

For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants’

motion for summary judgment as to plaintiff’s Second Cause of Action and DENIES the motion with

respect to the First, Third, and Fourth Causes of Action. (Docket No. 64).

IT IS SO ORDERED.

Dated: June 1, 2010 

SUSAN ILLSTON

United States District Judge

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