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1 In an earlier order, the court denied plaintiff’s motion

to amend to add as a defendant the individual officer involved in

the incident. The court did, however, grant plaintiff’s motion to

drop as defendants the City of Sacramento and the Sacramento Police

Department.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAFAR AFSHAR,

NO. CIV. S-04-1088 LKK/JFM

Plaintiff,

v.

O R D E R

CITY OF SACRAMENTO; SACRAMENTO

POLICE DEPARTMENT; COUNTY OF

SACRAMENTO; SACRAMENTO COUNTY

SHERIFF’S DEPARTMENT; and SHERIFF

LOU BLANAS, individually and in his

official capacity as Sheriff of the

Sacramento County Sheriff’s Department,

Defendants.

 /

Plaintiff brings suit pursuant to 42 U.S.C § 1983, alleging

that he was assaulted by officers while in custody at the

Sacramento County Jail. The named defendants are Sherif Lou

Blanas, the County of Sacramento and the County Sheriff’s

Department.1 Although plaintiff’s complaint alleged nine causes

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2 These causes of action were: (1) violation of equal

protection (pursuant to section 1983); (2) violation of substantive

due process (pursuant to section 1983); (3) False arrest/Excessive

force (pursuant to section 1983); (4) Entity/Supervisory Liability

(pursuant to section 1983); (5) Negligent hiring, training,

supervision and retention (California State Common Law); 

(6) Negligence (California State Common Law); (7) Assault, battery,

and conspiracy (California State Common Law); (8) Negligent

infliction of emotional distress (California State Common Law); and

(9) Intentional Infliction of Emotional Distress (California State

Common Law).

3 These facts are undisputed unless otherwise noted. 

2

of action,2 counsel for plaintiff represented to the court during

oral argument that plaintiff waived all but his Monell claim

(alleging a custom, policy and practice of excessive force at the

Sacramento County Jail). Pending before the court are crossmotions for summary judgement. For the reasons set forth below,

the court denies in part and grants in part both motions.

Also pending before the court is plaintiff’s notice of related

cases. For the reasons set forth below, the court declines to

relate the cases.

I.

FACTS3

Plaintiff is a forty year old man. He was born in Tehran,

Iran and moved to the United States when he was in his twenties.

He is a United States Citizen. See Afshar Dep. at 8. 

On June 7, 2003, at approximately 2:30 a.m. officers with the

City of Sacramento Police Department arrested plaintiff for being

in violation of California Penal Code § 647 (d). Defs.’ SUF 4. 

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3

The officers concluded that plaintiff was under the influence of

intoxicating liqueur or intoxicating liqueur in combination with

a drug or controlled substance and was unable to care for his own

safety. Id. After being arrested, plaintiff was searched and the

city officers found a zip-lock baggie containing a marihuana

smoking pipe and less than one ounce of marijuana. Defs.’ SUF 5.

Plaintiff was then transported to the Sacramento County Jail where

he was turned over to County jail employees for booking and

processing. Defs.’ SUF 6 & 7. 

In his deposition, plaintiff states that he does not remember

what happened to him when he arrived at the jail. He also does not

remember being booked or having an altercation with a deputy at the

jail. Defs.’ SUF 9-12. Plaintiff did remember that at some point

an unidentified person made the comment, “where is your god now?”

and that he was in “total physical pain.” Defs.’ SUF 12; Afshar

Dep. at 33. Plaintiff maintains that his memory of the evening was

affected by the serious head injury he suffered while in the jail.

See Afshar Dep. at 28. 

A jail surveillance video of plaintiff being patted down by

jail officers shows an officer pulling plaintiff back and pushing

him to the floor in a violent manner. Plaintiff is then taken away

and a large pool of blood remains on the floor in the area where

plaintiff fell to the ground. See Pl.’s Mot. for Summ. J., Ex. 7.

Officer Spaid testified in his deposition that he pushed

plaintiff to the floor because plaintiff was not being cooperative.

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4 The court notes that there had been no evidence tendered

to the court as to the exact injuries sustained by plaintiff. 

4

Spaid stated that plaintiff was probably brought down to the floor

for any number of reasons, including the need to finish the search

or because plaintiff was a threat. See Spaid Dep. at 37 & 44.

Spaid implied that plaintiff was drunk and had trouble controlling

his movements. Id. at 41. As plaintiff fell, he hit his head on

a wall and received a massive cut on his head. Id. at 51-52. 

Spaid called for a nurse. Id. 

Plaintiff testified in his deposition that he was seen by a

doctor at the VA Hospital after he was released from the jail that

night. See Afshar Dep. at 33, 47. A cat-scan and x-ray was

conducted at the hospital and he was diagnosed as having a

concussion. Id. at 49. Plaintiff also testified that he had a

vague memory of being taken to a separate hospital while he was

still in custody. Id. at 51.4

II.

STANDARDS FOR SUMMARY JUDGMENT

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); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Sicor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

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5

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, 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. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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6

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Sicor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

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7

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, 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 Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)). 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 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45

(E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

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8

Matsushita, 475 U.S. at 587 (citation omitted).

III.

ANALYSIS 

A. 42 U.S.C. § 1983

Section 1983 requires a claimant to prove that a person acting

under color of state law committed an act that deprived plaintiff

of some right, privilege, or immunity protected by the Constitution

or federal law. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir.

1988). Counties and their law enforcement departments are

"persons" within the meaning of the statute. Monell v. Dept. of

Social Services of City of New York, 436 U.S. 658, 690 (1978); Shaw

v. State of California Dept of Alcoholic Beverage Control, 788 F.2d

600, 604 (9th Cir. 1986).

Municipal entities are subject to liability where "action

pursuant to official municipal policy of some nature cause[s] a

constitutional tort." Monell, 436 U.S. at 691. A direct causal

link between departmental policy or custom and the alleged

deprivation is therefore required. City of Canton v. Harris, 489

U.S. 378, 385 (1989).

Plaintiff may establish municipal liability by proving that

the violation was committed pursuant to a formal departmental

policy or a "longstanding practice or custom which constitutes the

'standard operating procedure' of the local governmental entity."

Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989).

In the case at bar, plaintiff alleges that there was an

informal policy and practice of excessive force at the county jail.

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5 The court notes that the parties contested the

admissibility of plaintiff’s expert declaration. Upon review of

defendants’ objections and after a joint phone conference on the

matter, the court finds that the testimony of plaintiff’s expert,

Timothy Twomey, is admissible. 

9

In making this assertion, plaintiff relies heavily on the opinion

of his expert.5 Plaintiff’s expert reviewed the video of plaintiff

being booked and taken to the floor, as well as depositions from

the officers at the scene. The expert also relied on reports and

records from prior alleged incidents of excessive force at the

jail. Based on these facts, the expert concluded that there was

an unwritten policy of excessive force. 

Defendants, however, maintain that there is not an unwritten

policy of excessive force. Defendants assert that the jail has a

written policy that governs the use of force, thereby contradicting

plaintiff’s claim. 

Based on the evidence tendered to the court, there remains a

triable issue of fact. Specifically, the parties dispute the

existence of an informal policy condoning the use of excessive

force on jail inmates. This dispute requires “a jury or judge to

resolve the parties' differing versions of the truth at trial.”

First Nat'l Bank, 391 U.S. at 290. For this reason, both

defendants’ and plaintiff’s motions for summary judgment are

DENIED. 

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10

B. QUALIFIED IMMUNITY 

Plaintiff names Sheriff Lou Blanas as a defendant, both in his

individual and official capacities. Defendants assert that Sheriff

Blanas is entitled to qualified immunity. Plaintiff fails to

address this issue in either his opposition or reply brief. 

1. Official Capacity

"The Eleventh Amendment bars actions for damages against state

officials who are sued in their official capacities in federal

court." Dittman v. California, 191 F.3d 1020, 1026 (9th Cir.

1999). To the extent plaintiff is suing defendant Blanas in his

official capacity, plaintiff’s claim fails because his complaint

requests only damages. Id.

2. Personal Capacity Liability

The Supreme Court has explained that: 

[W]hether an official protected by qualified immunity

may be held personally liable for an allegedly unlawful

official action generally turns on the ‘objective legal

reasonableness' of the action, assessed in light of the

legal rules that were ‘clearly established’ at the time

it was taken. 

Anderson v. Creighton, 483 U.S. 635, 639 (1987). 

Additionally, Blanas’ individual liability hinges upon his

participation in the deprivation of constitutional rights. Larez

v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991). 

Unlike the involvement of a line officer, however, which ordinarily

is direct and personal, a supervisor’s participation may involve

the setting in motion of acts which cause others to inflict

constitutional injury. Id. (citing Johnson v. Duffy, 588 F.2d 740,

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11

743-44 (9th Cir. 1978)). 

Liability is imposed against a supervisor in his individual

capacity for his “own culpable action or inaction in the training,

supervision, or control of his subordinates,” Clay v. Conlee, 815

F.2d 1164, 1170 (8th Cir. 1987), for his “‘acquiesce [nce] in the

constitutional deprivations of which [the] complaint is made,’”

Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988), or for

conduct that showed a “‘reckless or callous indifference to the

rights of others.’” Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st

Cir. 1989); see also Larez, 946 F.2d at 646.

In the case at bar, there is a dispute as to whether there was

a policy or practice in which officers used excessive force against

jail inmates. If the fact finder accepts plaintiff’s allegations

as true, then defendant Blanas could be liable in his individual

capacity for his “action or inaction in the training, supervision,

or control of his subordinates.” Clay v. Conlee, 815 F.2d 1164,

1170 (8th Cir. 1987). 

The facts are silent as to defendant Blanas’ actions or

inactions and thus the fact finder would need to decide the extent

of Blanas’ participation. See Larez, 946 F.2d at 646 (finding that

the district court correctly instructed the jury that it could find

supervisor liable in his individual capacity if he “set[ ] in

motion a series of acts by others, or knowingly refused to

terminate a series of acts by others, which he kn[e]w or reasonably

should [have] know[n], would cause others to inflict the

constitutional injury.”) The inquiry, however, does not end here.

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12

Having determined that plaintiff’s factual allegations, if

true, establish a constitutional violation, the court must evaluate

whether the law was clearly established such that a reasonable

officer, or in this case, supervisor, would have known that the

conduct was unlawful. Motley v. Parks, 432 F.3d 1072, 1089 (9th

Cir. 2005). In assessing the applicability of qualified immunity,

the contours of the asserted right must be “sufficiently clear that

a reasonable [supervisor] would understand that what he is doing

violates that right.” Id. (citing Camarillo v. McCarthy, 998 F.2d

638, 640 (9th Cir. 1993)).

It is well established that “[a]fter incarceration, only the

unnecessary and wanton infliction of pain A. . . constitutes cruel

and unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319

(1986). If plaintiff’s allegations are found true, then defendant

Blanas could be held liable. The law at the time of the alleged

incident was well established that condoning a policy of excessive

force constitutes cruel and unusual punishment and a reasonable

supervisor would have known that this sort of policy or practice

was illegal. See Motley, 432 F.3d at 1089. Therefore, if a fact

finder concludes that defendant Blanas participated in condoning

a policy of excessive force, then defendant Blanas would be liable

and qualified immunity would not apply. 

For these reasons, defendants’ motion for summary judgement

as to defendant Blanas’ liability in his official capacity is

GRANTED and defendants’ motion for summary judgment as to

defendant Blanas’ liability in his personal capacity is DENIED.

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13

C. PLAINTIFF’S NOTICE OF RELATED CASES

Also pending before the court is plaintiff’s notice of related

cases. Plaintiff seeks to relate the above-captioned case with a

class action. The court has determined, however, that it is

inappropriate to relate or reassign the cases, and therefore

declines to do so. This order is issued for informational purposes

only, and shall have no effect on the status of the cases,

including any previous Related (or Non-Related) Case Order of this

court.

Accordingly, the court hereby ORDERS as follows:

1. Defendants’ and plaintiff’s cross-motions for summary

judgement as to the Monell claim are DENIED. 

2. Defendants’ motion for summary judgement as to all other

claims raised in plaintiff’s complaint is GRANTED.

3. Defendants’ motion for summary judgement as to defendant

Blanas’ liability in his official capacity is GRANTED.

4. Defendants’ motion for summary judgement as to defendant

Blanas’ liability in his personal capacity is DENIED.

IT IS SO ORDERED. 

DATED: March 23, 2006.

 /s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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