ORDER – No. 17-cv-00600-LB

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

San Francisco Division

RENEE MARIE LEPAGE,

Plaintiff,

v.

DEPUTY TIMOTHY REID,

Defendants.

Case No. 17-cv-00600-LB

ORDER DENYING DEFENDANTS’

MOTION FOR SUMMARY 

JUDGMENT

Re: ECF No. 91

INTRODUCTION

In December 2015, Napa County Deputy Sheriff Timothy Reid — while responding to a 

disturbance in a courtroom at the Napa County courthouse — allegedly seriously injured the

plaintiff Renee LePage, who was there for an unrelated court appearance.

1 Ms. LePage sued him 

for excessive force in violation of the Fourth Amendment, negligence, battery, and a violation of 

California’s Bane Act, Cal. Civ. Code § 52.1.2 Deputy Reid moved for summary judgment on the 

ground that any physical contact was accidental and thus was not a seizure under the Fourth 

Amendment or grounds for punitive damages or liability under the Bane Act claim. Because there 

 

1 First Amended Complaint (“FAC”) – ECF No. 65. Citations refer to the Electronic Case File 

(“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

2

Id. at 4–8. The complaint had a Monell claim; the parties stipulated to its dismissal. ECF No. 94.
ORDER – No. 17-cv-00600-LB 2

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are material issues of disputed fact regarding — among other things — whether Deputy Reid’s 

conduct was intentional, the court denies the motion for summary judgment.3

STATEMENT

On December 1, 2015, Ms. LePage was in Department E of the Napa County Superior 

Courthouse.4 Two inmates had a fight in the courtroom’s inmate-holding cell.5 A deputy named 

Matlock ordered another deputy named Bullis to clear the courtroom.6 Ms. LePage started to leave 

the courtroom.7 Department E has two sets of double doors.8 The first set opens out from the 

courtroom into a vestibule — with attorney-client-meeting rooms on each side — and the second 

set opens out into the hallway.9 Ms. LePage said that she walked through the first set of doors, 

spoke briefly with her attorney Molly Hendry in one of the attorney-client-meeting rooms in the 

vestibule, and then went back into the vestibule and began to open one side of the second set of 

double doors outward into the hall.10 At this point, the plaintiff and the defendant dispute the 

nature of the incident and the force used by the defendant.11

Ms. LePage described an empty vestibule, her holding the door for Deputy Reid and making 

eye contact with him, and Deputy Reid’s conduct: making a “beeline” straight for her, body 

slamming her with his heavy, bullet-proof vest (which felt like he was using a weapon against 

 

3 All parties consented to the undersigned’s jurisdiction. Consent Forms – ECF Nos. 7, 9, and 15. The 

court held a hearing on the motion on November 15, 2018. Minute Entry – ECF No. 101.

4 LePage Dep. – ECF No. 95-1 at 22 (p. 52:1)

5 Reid Dep. – ECF No. 91-2 at 12 (p. 44:23).

6 Downs. Decl. – ECF No. 91-2 at 112.

7 LePage Dep. – ECF No. 95-1 at 24 (p. 57:18).

8

Id. at 21 (p. 52:12).

9

Id. (p. 52:14–22).

10 Id. at 25–27 (pp. 58:5–60:23).

11 This order does not recount fully the background facts, which are not relevant to the analysis, but 

they include the plaintiff’s immediate reporting of the incident to law-enforcement officers, her fragile 

state, her subsequent medical treatment at the emergency room, her previous medical treatment for 

spinal stenosis, and her subsequent spinal surgery and medical treatment. Id. at 44–57 (pp. 84:4–

87:25); LePage Decl. – ECF No. 95-1 at 72–73.
ORDER – No. 17-cv-00600-LB 3

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her), pushing her into the door, and (when she bounced back), grabbing both her upper arms with 

both of his hands and forcefully throwing her back against the same door.12 He then told her, “Get 

out of my way” and walked past her.13

Deputy Reid described his response to loud “thumps” coming from Courtroom E, the request 

for him to “cover” the incident, his approach to Courtroom E, his encounter of a crowd of 20 

moving through the vestibule, and his several announcements to get out of the way and clear the 

way.14 He did not touch anyone intentionally in the vestibule, did not remember having contact 

with the plaintiff, and described any contact with her as “unintentional and as a result of [his]

moving into the courtroom.”15

The defendant also cited deposition testimony of two other witnesses. The first was the 

plaintiff’s attorney Molly Hendry, who described how “everyone started pouring out of” 

Department E.16 She described being in the vestibule with the plaintiff.17 When people came out of 

the courtroom and into the vestibule, it became crowded and “very chaotic.”18 Deputy Reid was 

“focused and quick” as he moved through the vestibule.19 The encounter lasted seconds.20 Deputy 

Reid might have bumped the plaintiff, and she remembered that the plaintiff was upset.

21 It did not 

look like a purposeful assault.

22 She also testified about things she did not remember or see, such 

 

12 LePage Dep. – ECF No. 95-1 at 28 (p. 62:6–25), 32 (p. 69:16–17), 34 (pp. 71:17–72:3), 55 (p. 

103:3–5), 56 (p. 104:15–16), 57 (p. 105:7–11).

13 Id. at 55 (p. 103:3–5) and 38 (p. 75:4–6).

14 Reid Dep. – ECF No. 91-2 at 12 (p. 43:19), 12 (p. 44:20–25), 20 (pp. 64:25–65:3), 21 (pp. 78:20–

79:6).

15 Id. at 19 (p. 72:6–8). 

16 Hendry Dep. – ECF No. 91-2 at 30 (pp. 13:1–14:11).

17 Id. at 34 (pp. 27:14–28:1)

18 Id. at 36 (p. 34:11–22).

19 Id. at 40 (p. 51:14–16).

20 Id. at 32 (p. 18:5–9), 36 (p. 34:19–22) (two seconds); id.at 31–32 (pp. 17:25–18:1). 

21 Id. at 36 (pp. 36:19–23 and 37:23–25). 

22 Id. at 39 (p. 48:13–25).
ORDER – No. 17-cv-00600-LB 4

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as the plaintiff’s falling down or leaving the vestibule, because it was chaotic.23 The second 

witness was a deputy district attorney, who was in one of the conference rooms adjacent to the 

vestibule; she described how “people started flooding out of the courtroom” into the vestibule, 

with “a lot of people all at once in the vestibule that had been mostly empty or entirely empty 

moments previous.”24

STANDARD OF REVIEW

The court must grant a motion for summary judgment if the moving party shows that there is 

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter 

of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). 

Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A 

dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to 

return a verdict for the non-moving party. Id. at 248–49.

The party moving for summary judgment bears the initial burden of informing the court of the 

basis for the motion and identifying portions of the pleadings, depositions, answers to 

interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material 

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party 

must either produce evidence negating an essential element of the nonmoving party’s claim or 

defense or show that the nonmoving party does not have enough evidence of an essential element 

to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 

210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 

2001) (“When the nonmoving party has the burden of proof at trial, the moving party need only 

point out ‘that there is an absence of evidence to support the nonmoving party’s case.’”) (quoting 

Celotex, 477 U.S. at 325).

If the moving party meets its initial burden, the burden then shifts to the non-moving party to 

produce evidence supporting its claims or defenses. Nissan Fire & Marine, 210 F.3d at 1103. The 

 

23 Id. at 32 (p. 18:5–9), 36 (p. 37:23–25).

24 Miller Dep. – ECF No. 91-2 at 49 (pp. 12:20–13:3, 14:11–23).
ORDER – No. 17-cv-00600-LB 5

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non-moving party may not rest upon mere allegations or denials of the adverse party’s evidence, 

but instead must produce admissible evidence that shows there is a genuine issue of material fact 

for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not produce evidence to 

show a genuine issue of material fact, the moving party is entitled to summary judgment. See

Celotex, 477 U.S. at 323.

In ruling on a motion for summary judgment, the court does not make credibility 

determinations or weigh conflicting evidence. Instead, it views the evidence in the light most 

favorable to the non-moving party and draws all factual inferences in the non-moving party’s 

favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); Ting 

v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).

ANALYSIS

1. The Fourth Amendment 

Deputy Reid argues that his encounter with the plaintiff was an accident and thus was not a 

seizure under the Fourth Amendment.

25 The court holds that the parties’ disputed facts preclude 

summary judgment. 

Section 1983 provides a cause of action for the deprivation of “rights, privileges, or 

immunities secured by the Constitution or laws of the United States” by any person acting “under 

color of any statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 639 

(1980). Section 1983 is not itself a source for substantive rights but rather is a method for 

vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94 (1989). 

To state a claim under Section 1983, a plaintiff must allege: (1) the conduct complained of was 

committed by a person acting under color of state law; and (2) the conduct violated a right secured 

by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). The 

 

25 Motion – ECF No. 91 at 11–12.
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defendants do not dispute that Deputy Reid acted under color of state law.

26 The issue is whether 

he seized the plaintiff in violation of her constitutional rights under the Fourth Amendment.

The general rule is that “a person has been ‘seized’ within the meaning of the Fourth 

Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable 

person would have believed that he was not free to leave.” United States v. McClendon, 713 F.3d 

1211, 1215 (9th Cir. 2013) (quoting United States v. Medenhall, 446 U.S. 544, 554 (1980)).27 A 

seizure occurs only when the police terminate an individual’s freedom of movement through 

means intentionally applied. United States v. Al Nasser, 555 F.3d 722, 728 (9th Cir. 2009) (citing 

Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97 (1988)).28

Deputy Reid moves for summary judgment on the ground that his encounter with the plaintiff 

was accidental. If he bumped (or even ran over) the plaintiff accidentally, it would not be a seizure 

within the meaning of the Fourth Amendment. See Brower, 489 U.S. at 596 (“[T]he Fourth 

Amendment addresses ‘misuse of power,’ not the accidental effects of otherwise lawful 

government conduct.”) (internal citations omitted); see also County of Sacramento v. Lewis, 523 

U.S. 833, 843–45 (1998). But the facts are disputed. The plaintiff describes intentional conduct

aimed specifically at her. The defendant describes an accident. Whether the plaintiff was an 

incidental victim of police action or instead was a target is a disputed issue of fact that precludes 

 

26 See Mot. – ECF No. 91.

27

“[T]his determination is ‘a necessary, but not a sufficient, condition for seizure. In addition, some 

form of ‘touching or submission’ is also required.” McClendon, 713 F.3d at 1215. (emphasis in 

original) (quoting California v. Hodari D., 499 U.S. 621, 626–28 (1991)). “Regardless of how 

unreasonable the officers’ actions were, and regardless of how reasonable it was for [the individual] to 

feel restrained,” if an individual was not physically touched by the police and did not actually submit 

to their authority, there was no seizure, and the Fourth Amendment is not implicated. Id. at 1217 

(citing Hodari D., 499 U.S. at 626). For purposes of summary judgment, Deputy Reid does not dispute 

that he touched the plaintiff, who alleges serious injury. Reid Dep. – ECF No. 91-2 at 19 (pp. 71:20–

72:25).

28 An illustration of this includes the following. In the absence of submission, if the police use 

physical force to try to seize an individual but do not actually terminate his freedom of movement, 

no seizure has occurred. United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994) (“A

seizure does not occur if an officer applies physical force in an attempt to detain a suspect but such 

force is ineffective.”) (citing Hodari D., 499 U.S. at 625); accord Al Nasser, 555 F.3d at 729 (“the 

car or individual’s freedom of movement [must] end” to constitute a seizure) (citations omitted).
ORDER – No. 17-cv-00600-LB 7

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summary judgment. See Rodriguez v. City of Fresno, 819 F. Supp. 2d 937, 946 (9th Cir. 2011) 

(collecting and analyzing cases). Fact disputes like this require the fact finder to sift through the 

evidence, draw inferences from it, and resolve credibility issues. Smith v. City of Hemet, 394 F.3d 

689, 701 (9th Cir. 2005). For this reason, the Ninth Circuit “has held on many occasions that 

summary judgment . . . in excessive force case should be granted sparingly.” Id.

The defendant nonetheless argues that the plaintiff’s self-serving account is uncorroborated 

and speculative and thus does not create a genuine issue of material fact.

29 This does not change 

the outcome.

There is some authority for the proposition that if a plaintiff’s only evidence of wrongful 

seizure and excessive force is her own self-serving testimony, and the testimony is incredible, it 

does not create a fact dispute. See Jeffreys v. New York, 426 F.3d 549, 551–55 (2nd Cir. 2005)

(upheld the district court’s holding that no jury could believe the plaintiff’s testimony that police 

beat him on the body and head with a flashlight and must have thrown him out of the window 

because he did not remember jumping; the account differed markedly from his three previous 

statements that he jumped out of the window (one statement to medical personnel on the day of 

the incident, one to the police two days later, and one to Department of Corrections screening 

personnel); medical evidence confirmed that he had not lost consciousness and there were no 

blows to the head; the sole police officer testified that the plaintiff jumped). 

The testimony here is not riddled with the inconsistencies of Jeffreys. There are not 

contradictory statements or contradictory evidence. Cf. Jeffreys, 426 F.3d at 551–555. The 

defendant’s cases — cited to support the argument that the court can disregard the plaintiff’s 

account — also involve the submission of sworn statements that contradicted prior testimony. 

Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996); Thornhill Pub. Co. v. Gen. Tel. & 

Elec. Corp., 594 F.2d 730, 738 (9th Cir. 1979). Moreover, the plaintiff proffers evidence of her 

severe injury from the encounter.30 While that injury does not establish Deputy Reid’s scienter, her 

 

29 Mot. – ECF No. 91 at 14–15.

30 See supra n. 11. 
ORDER – No. 17-cv-00600-LB 8

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testimony does not have the quality of fabrication that might drive a court’s conclusion that a 

plaintiff’s account is so self-serving that it does not create an issue of fact. Also, the extent of her 

injury may be relevant to Deputy Reid’s credibility: he said that he did not remember any contact 

with the police.31 Finally, the eyewitnesses’ accounts of a chaotic atmosphere do not render the 

plaintiff’s account implausible as a matter of law. Eyewitness testimony — even if genuinely 

recounted — can be imperfect. And one witness did not see the encounter at all32 and the other 

witness did not categorically support Deputy Reid’s account or categorically contradict the 

plaintiff’s.33

The court denies the motion for summary judgment.

2. Punitive Damages and the Bane Act Claim

For similar reasons, the defendant moves to preclude punitive damages and for summary 

judgment on the Bane Act claim.34 The court denies the motion.

A § 1983 plaintiff may recover punitive damages if the plaintiff shows by a preponderance of 

the evidence that the state actor acted with malicious or evil intent or in callous disregard of a 

plaintiff’s federally protected rights. Smith v. Wade, 461 U.S. 30, 56 (1983). Similarly, to obtain 

punitive damages under California law, a plaintiff must show by clear and convincing evidence 

that a defendant acted with malice, fraud, or oppression. Cal. Civ. Code § 3294; Roby v. 

McKesson Corp., 47 Cal. 4th 686, 712 (2009). Finally, the Bane Act prohibits interference or 

attempted interference by “threats, intimidation, or coercion” with a person’s rights under federal 

or California law and the United States and California constitutions. Cal. Civ. Code § 52.1.

Because the facts are disputed, the court cannot find as a matter of law that punitive damages 

are precluded or that Deputy Reid lacked the requisite intent under the Bane Act. The court denies 

summary judgment. 

 

31 See supra Statement.

32 Miller Dep. – ECF No. 95-1 at 105 (pp. 20:22–21:6).

33 Hendry Dep. – ECF No. 91-2 at 31–32 (pp. 17:17–18:9). 

34 Mot. – ECF No. 91 at 13–15 and 19–20. 
ORDER – No. 17-cv-00600-LB 9

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CONCLUSION

The court denies the summary-judgment motion. 

This disposes of ECF No. 91.

IT IS SO ORDERED.

Dated: November 20, 2018 ______________________________________

LAUREL BEELER

United States Magistrate Judge