Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW ORDER THEREON MARIA-ELENA JAMES, United States Magistrate Judge. I. INTRODUCTION This case is before the Court for claims arising out of an incident on August 10, 2004 between Plaintiff Uganda Knapps (“Plaintiff’) and Oakland Police Officers Michael Cardoza, Francisco Rojas and Sergeant James Kelly. On July 19, 2005, Plaintiff filed a Complaint alleging excessive force and malicious prosecution under 42 U.S.C. § 1983, as well as supplemental state law claims for negligence, false arrest/imprisonment, battery, and statutory claims for the violation of his rights under California Civil Code sections 51.7 and 52.1. The parties waived a jury trial, and the case was tried before the Court on October 17, 23, and 24, 2007. After considering and weighing all the evidence and the parties’ arguments, and having assessed the credibility of the witnesses, the Court enters the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). II. FINDINGS OF FACT As a preliminary matter, the Court notes that the trial in this case was largely about witness credibility, as the parties presented contradictory versions of the incident. For purposes of the findings of fact, the Court states the conflicting testimony as appropriate, with credibility determinations made in the conclusions of law. A. Background 1. Plaintiff Uganda Knapps, an African-American male, was 29 years old at the time of the August 10, 2004 incident. (Trial Tr., Day 3, 113:3-6; PL’s Ex. 6, Audio CD (“CD”).) 2. In June of 2004, Plaintiff began work at the Hodges Residential Facility (“Hodges”) in Oakland, California. Hodges is an adult residential facility that cares for developmentally-disabled adults. (Trial Tr., Day 3,121:8-11; 208:9-16.) 3. His responsibilities included helping the residents with their daily activities, monitoring their behaviors, charting information, dispensing medications, and helping with basic household chores. Plaintiff testified that he received brief training from Marsha Jones. (Trial Tr., Day 3, 121:22-122:9; 209:11-14.) 4. Michael Fowler, a mentally-challenged adult, was a resident at Hodges. (Trial Tr., Day 3, 122:1-15; 136:25-137:2; 208:19-23.) Mr. Fowler died at an unknown time after the incident from an unrelated cause. (PL’s Ex. 2, p. 9.) 5. Prior to August 10, 2004, Plaintiff had been involved in two prior incidents with Mr. Fowler. In the first, Mr. Fowler threatened Plaintiff with a butter knife. (Trial Tr., Day 3, 122:16-123:4.) In the second, Mr. Fowler went to a nearby park with a group of patients and a counselor from Hodges, but did not return with the group. (Trial Tr., Day 3, 124:22-125:19.) On both occasions, Plaintiff sought law enforcement assistance, and he testified that there were no major problems with police in either incident. (Trial Tr., Day 3, 124:16-21; 126:2-4.) 6. Defendant Oakland Police Officer Michael Cardoza graduated from the Oakland Police Department (“OPD”) Academy in 2000 and, at the time of the August 10, 2004 incident, had been a police officer for a little under four years. (Trial Tr., Day 1, 5:6-12.) 7. Defendant Oakland Police Officer Francisco Rojas also graduated from the OPD Academy in 2000 and, at the time of the August 10, 2004 incident, had been a police officer for a little under four years. (Trial Tr., Day 3, 8:9-9:l.) 8. On the night of August 10, 2004, Officers Cardoza and Rojas were members of a Crime Reduction Team (“CRT”) called to assist an Alameda County unit with an auto theft investigation in the same area as the incident at issue in this case. Officer Cardoza was an acting sergeant and supervisor of the CRT team involved in the investigation. (Trial Tr., Day 1, 5:13-6:20; Trial Tr., Day 3, 9:2-9.) 9. On the night of the incident, Officer Cardoza was dressed in a utility uniform bearing patches identifying him as an Oakland Police officer. (Trial Tr., Day 1, 8:5-20.) 10. Officer Rojas was dressed in street clothes. (Trial Tr., Day 3,15:2-5.) 11. Both officers were in a white SUV driven by Officer Rojas. Although it was an OPD vehicle, it did not have any markings identifying it as such. (Trial Tr., Day 3, 14:21-15:1; Trial Tr., Day 1, 11:8-10.) 12. Both officers had hand-held police radios tuned to a tactical channel dedicated to the vehicle theft operation. They did not receive any broadcast from the regular broadcast channels, and they therefore did not receive any information about the incident involving Plaintiff and Mr. Fowler. (Trial Tr., Day 1, 11:11-12:12; 50:17-21, Trial Tr., Day 3,15:9-16:16.) 13. Defendant Oakland Police Sergeant James Kelly had been a police officer with the OPD for fourteen years at the time of the incident. On that night, he was acting in a capacity as sergeant, and had been a sergeant for about seven years. (Trial Tr., Day 3, 69:3-13.) 14. On August 14, 2004, Sgt. Kelly was driving a marked City of Oakland police patrol car. (Trial Tr., Day 3,14-16.) 15. Sgt. Kelly was also in the area trying to apprehend the auto thief suspect, although not as part of CRT. (Trial Tr., Day 3, 91:14-22.) B. Details of the August 10, 2004 Incident 16. During his shift on the night of August 10, 2004, Plaintiff became aware that Mr. Fowler had left the facility unaccompanied, and he attempted to retrieve him. (Trial Tr., Day 3, 126:13-21; Trial Tr., Day 1, 52:13-14.) 17. Mr. Fowler was not authorized to leave the building that night. Anthony Hodges, owner of the Hodges Residential Facility, testified that he directed Plaintiff to follow Mr. Fowler and direct traffic so that he would not get hit by a car. (Trial Tr., Day 3, 209:18-210:15.) 18. Shortly after leaving the facility, Plaintiff found Mr. Fowler running in and out of the street, ignoring traffic. (Trial Tr., Day 3, 127:11-15.) Concerned for Mr. Fowler’s safety, Plaintiff used his cell phone to dial “911” and contact the OPD dispatch to request police assistance. (Trial Tr., Day 3,127:9-15.) 19. While on the phone with OPD dispatch, Plaintiff followed Mr. Fowler eastbound on Suter Street, informing dispatch of his location and giving pertinent information concerning Mr. Fowler’s whereabouts. (Trial Tr., Day 3, 127:19-128:7.) This conversation was recorded by OPD dispatch. (CD.) 20. The relevant portion of the recorded dispatch conversation begins approximately 3 minutes and 25 seconds after Plaintiff placed the 911 call. In the recording, the dispatcher can be heard asking Plaintiff for Mr. Fowler’s location and whether or not Mr. Fowler is armed, and then attempting to find a patrol car to assist Plaintiff with Mr. Fowler. (CD.) 21. Approximately eleven minutes and twenty-five seconds into the recording, the dispatcher asks, “What’s he doing now?” Plaintiff responds, “He’s just sitting on the pavement.” The dispatcher then asks if Mr. Fowler is making suicidal threats and Plaintiff responds, “Yes, he says he wants to kill himself.” (CD.) 22. Approximately twelve minutes and thirty seconds into the recording, Plaintiff informs the dispatcher that he and Mr. Fowler are at the intersection of 38th Avenue and Suter Street. He then tells Mr. Fowler, “You can’t go into the street, Mike,” and informs Mr. Fowler that he (Plaintiff) has the right to stop him from harming himself. (CD.) 23. Plaintiff testified that he understood he was authorized to restrain a client if they were about to harm themselves, and that he had been given such authorization at Hodges. (Trial Tr., Day 3, 171:21-172:1.) 24. Approximately thirteen minutes into the recording, Plaintiff tells Mr. Fowler that he can walk all he wants, but he cannot go into the street. Mr. Fowler asks why he can’t walk in the street, and tells Plaintiff to move out of the way. (CD.) 25. At approximately thirteen minutes and forty seconds, Mr. Fowler tells Plaintiff, “You can’t block me. You can’t block me.... ” Plaintiff responds, “Come on, Mike, we don’t have to do this tonight,” and offers to take Mr. Fowler to the store to get some water and a soda for his stomach. (CD.) 26. At approximately fourteen minutes and three seconds, the dispatcher tells Plaintiff not to hang up, that she’s going to put him on hold for a second. She returns approximately eleven seconds later and asks where Plaintiff and Mr. Fowler are. Plaintiff responds that they are at Suter and 38th. (CD.) 27. The dispatcher again asks what Mr. Fowler is doing, and Plaintiff calmly responds that he is “on someone’s garage door.” (CD.) 28. At this point, Plaintiff saw Sgt. Kelly’s marked patrol car approach. (Trial Tr., Day 3,130:14-17.) 29. Plaintiff stepped out to the street to try to flag down Sgt. Kelly, at which time Mr. Fowler attempted to run around Plaintiff and get to the street. (Trial Tr., Day 3,130:7-23; 131:7-21; 132:15-21.) 30. Sgt. Kelly testified that he was driving eastbound on Suter Street towards 38th Avenue, when he saw Plaintiff and Mr. Fowler in the vicinity of a home at that intersection. (Trial Tr., Day 3, 69:22-70:25.) 31. Prior to arriving on Suter, Sgt. Kelly heard a radio transmission from OPD Dispatch concerning a possible “5150” in the area. Sgt. Kelly testified that the only OPD report that he has ever seen referencing a possible 5150 subject in the area that night related to this incident involving Plaintiff and Mr. Fowler. (Trial Tr., Day 3, 69:24-70:18.) 32. As Sgt. Kelly drove past Plaintiff and Mr. Fowler, he noted that they were waving at him, but he thought they were just being friendly and therefore did not stop. He did not sense any urgency or emergency situation at that time. (Trial Tr., Day 3, 74:8-22.) 33. At approximately fourteen minutes and forty-eight seconds into the recording, there are sounds of a scuffle, which lasts for between one and two seconds. (CD.) 34. Sgt. Kelly testified that he glanced in his rearview mirror and saw Plaintiff push Mr. Fowler out of the street and toward the house. (Trial Tr., Day 3, 76:2-77:23; PL’s Ex. 40, Audio CD of Sgt. Kelly’s statement to the Oakland Civilian Review Board.) 35. He estimates that he was about 50 feet away from Plaintiff and Mr. Fowler at the time. (Trial Tr., Day 3, at 77:20-79:4; 94:6-8.) 36. Sgt. Kelly did not see Mr. Fowler hit the garage door, and he never saw Plaintiff punch Mr. Fowler. (Trial Tr., Day 3, 77:24-78:3; 80:6-14.) 37. Plaintiff testified that it was at this point that he took Mr. Fowler to the ground to prevent him from entering the roadway. (Trial Tr., Day 3, 131:1-3; 132:3-4.) 38. Plaintiff testified that he did not push Mr. Fowler into the garage door, nor did he ever punch Mr. Fowler when he was standing or on the ground. (Trial Tr., Day 3,132:25-133:5.) 39. At fourteen minutes and fifty-two seconds into the recording, Plaintiff tells the dispatcher, “He was trying to run into the middle of the street.” (CD.) 40. At the same time, Officers Cardoza and Rojas were traveling eastbound on Suter Street towards 38th Avenue, in Officer Rojas’ undercover SUV, following approximately two car lengths and just seconds behind the patrol car driven by Sgt. Kelly. (Trial Tr., Day 1, 15:8-22; Trial Tr., Day 3,17:2-21.) 41. Though they followed close behind Sgt. Kelly, Officer Cardoza testified that he never saw Plaintiff or Mr. Fowler near the street as testified by Sgt. Kelly, nor did he see them wave. (Trial Tr., Day 1, 16:4-18:9; 54:10-13.) 42. Officer Rojas also testified that he never saw Plaintiff or Mr. Fowler waving at anyone, and that he never saw either of them in the roadway. (Trial Tr., Day 3, 21:10-21.) 43. Officer Cardoza testified that he saw Plaintiff push Mr. Fowler against the garage door of a residence, punch Mr. Fowler in the right eye, drop his cell phone, throw Mr. Fowler to the ground, then punch him in the face twice more while Mr. Fowler lay on the ground (Trial Tr., Day 1, at- 16:24-17:18; 18:17-23:7.) 44. Officer Cardoza testified that he thought a robbery or battery was taking place because of the manner in which Plaintiff threw Mr. Fowler down. (Trial Tr., Day 1, 25:13-26:1.) 45. Officer Rojas testified that he saw Plaintiff throw Mr. Fowler into the garage door and punch him in the right eye with his left hand, and then take Mr. Fowler to the ground and punch him two more times. (Trial Tr., Day 3, 25:15-27:6.) 46. Officer Rojas testified that he stopped the SUV because he believed they were witnessing a robbery. (Trial Tr., Day 3, 25:7-24.) 47. Officer Rojas testified that he and Officer Cardoza were still in the unmarked SUV at the time they saw Plaintiff take Mr. Fowler to the ground, and that they both got out of the SUV at about the same time. (Trial Tr., Day 3, 28:10-16) 48. Sgt. Kelly saw Officer Cardoza get out of the unmarked SUV within a couple of seconds after he saw Plaintiff push Mr. Fowler out of the roadway. (Trial Tr., Day 3, 78:16-20.) 49. Although he did not recognize Officer Cardoza, Sgt. Kelly knew he was a police officer because he recognized his utility uniform. (Trial Tr., Day 3, 94:9-21.) 50. When Officer Cardoza exited the unmarked SUV, he testified that he identified himself as “Oakland Police,” although no such statement can be heard on the 911 recording. (Trial Tr., Day 1, 26:10-31; 69:16-18; CD.) 51. Even though it cannot be heard on the dispatch tape, Officer Rojas testified that he also identified himself as “Oakland police” after exiting the SUV. (Trial Tr., Day 3, 28:20-29:6; CD.) 52. Plaintiff and Mr. Fowler fell to the ground facing in different directions. (Trial Tr., Day 3,131:22-132:3.) 53. Officer Rojas testified that when he and Officer Cardoza exited the unmarked vehicle, Mr. Fowler was on the ground with Plaintiff straddling him. (Trial Tr., Day 3, 31:19-25.) 54. At approximately fifteen minutes into the recording, Officer Cardoza can be heard yelling at Plaintiff, “What the fuck are you doing?!” (CD.) 55. Plaintiff testified that, within seconds of stopping Mr. Fowler from running into the street, all he remembers is some people hopping out of a car, saying, “What the fuck are you doing?!” He further testified that neither officer identified themselves as “Oakland Police.” (Trial Tr., Day 3, 132:5-7; 133:13-15; 134:4-7.) 56. Officer Rojas testified that he did not hear Officer Cardoza make the profane statement. (Trial Tr., Day 3, 30:1-6.) 57. Plaintiff responded that he was doing his job. (Trial Tr., Day 3, 133:16— 134:2; CD.) 58. Plaintiff saw Officer Cardoza first, and saw the embroidered OPD badge on his utility uniform. (Trial Tr., Day 3, 132:11-14.) 59. Because Officer Rojas wasn’t wearing a uniform, Plaintiff testified that he was confused as to who Officer Rojas was and what was going on. (Trial Tr., Day 3, 134:14-18.) 60. Since Plaintiff believed that Sgt. Kelly, who had arrived first in the marked patrol car, was the officer responding to his dispatch call, he did not think that Officers Rojas and Cardoza were responding to the call. (Trial Tr., Day 3, 134:22-25.) 61. Even though he considered this to be a felony stop, Officer Cardoza testified that before making his remark, he never asked Plaintiff to stop what he was doing to Mr. Fowler, never asked him to step away from Mr. Fowler, never asked him to put his hands behind his back, and never ordered Plaintiff to get down on the ground. (Trial Tr., Day 1, 31:2-32:1.) 62. After responding to Officer Cardoza’s statement, Plaintiff got off the ground and stood up. (Trial Tr., Day 3, 135:1-3.) 63. Officer Cardoza told Plaintiff to put his hands behind his back, but Plaintiff testified that he misunderstood him and raised his hands above his head to show that he was holding a cell phone and not a weapon. (Trial Tr., Day 3,135:1-25.) 64. Officer Cardoza testified that he asked Plaintiff two or three times to put his hands behind his back, but he never told him to put his hands on his head, and at no time did he see Plaintiff put his hands on his head. (Trial Tr., Day 1, 34:23-25; 51:7-17.) 65. Officer Rojas testified that he heard Officer Cardoza tell Plaintiff to put his hands behind his back at least twice, and that he himself also told Plaintiff to put his hands behind his back. (Trial Tr., Day 3, 35:19-36:7.) 66. Plaintiff asked Officer Cardoza what he was doing, to which he responded that he was doing his job. (Trial Tr., Day 1, 35:2-4.) 67. Officer Cardoza next tried to grab Plaintiffs right arm from behind, but Plaintiff jerked his arm away when he tried to grab it. (Trial Tr., Day 1, 34:16-17, 35:5-9.) 68. Officer Cardoza testified that Plaintiff stood up and moved away from him and, since he did not know what his intent was, he placed Plaintiff in a carotid hold by putting his arm around Plaintiffs neck and dropping him to the ground. In the carotid hold, Officer Cardoza placed his forearm over Plaintiffs carotid artery. (Trial Tr., Day 1, 35:12-36:17; 37:9-15.) 69. The carotid hold constricts blood flow through the carotid artery, which supplies oxygenated blood to the brain. Unconsciousness occurs, which causes the individual’s body to relax completely, but breathing continues uninterrupted. (Defs.’ Ex. I, 2000 OPD Use of Force Policy Re: Carotid Holds, pp. 4-5.) 70. Pursuant to the OPD’s “Use of Force” policy, the application of a carotid hold is permissible as part of the continuum of force options, but an officer should use it only when less forceful options, such as verbal persuasion and physical strength (excluding carotid holds) are not effective in light of the circumstances presented. (Defs.’ Ex. H, 2000 OPD Use of Force Policy, p. 3.) 71. The time frame between Officer Cardoza’s profane comment and the carotid hold was within six seconds or less. (Trial Tr., Day 2, 54:2-8.) 72. Officer Cardoza testified that Plaintiff never tried to strike any of the officers, nor did he try to harm Mr. Fowler while he was on the scene. (Trial Tr., Day 1, 37:16-38:2.) 73. After Officer Cardoza placed him in the carotid hold, Plaintiff dropped to the ground. (Trial Tr., Day 1, 37:13-15.) 74. Once in the carotid hold, Plaintiff began yelling out, “I’m his counselor, I’m his counselor. I take care of him.” Officer Cardoza responded, “Okay. I hear that you’re his counselor, but I’m still going to handcuff you until I can sort all this out.” (Trial Tr., Day 1, 89:6-18.) 75. Plaintiff testified that he began choking and gagging after Officer Cardoza placed him in the hold. (Trial Tr., Day 3, 136:1-7.) 76. Between the time he saw Officer Cardoza jump out of the SUV and the time he himself got out of his vehicle, Sgt. Kelly testified that he tried unsuccessfully to transmit using his radio. He was not looking into the rearview mirror while attempting to transmit. (Trial Tr., Day 3, 95:4-14; 93:7-11.) 77. Sgt. Kelly got out of his car and went back to the scene. It took him ap-' proximately five seconds to jog from his car to where Plaintiff, Mr. Fowler, and Officer Cardoza were. The first thing he observed was that Officer Cardoza had his arm around Plaintiffs neck and was either putting Plaintiff down or had just pulled Plaintiff down on his buttocks. (Trial Tr., Day 3, 95:15-23.) 78. Sgt. Kelly testified that he did not hear Officer Cardoza give any oral commands to Plaintiff before putting his arm around his neck. (Trial Tr., Day 3, 83:6-9.) 79. Officer Cardoza testified that while Plaintiff was in the carotid hold, he never applied any pressure to Plaintiffs neck or throat; he therefore believes that it was impossible for him to have choked Plaintiff. (Trial Tr., Day 1, 60:8-14; 62:3-11.) 80. Officer Rojas testified that while Plaintiff was in the carotid hold, he did not hear any noises emanating from Plaintiff that sounded like he was choking, but Plaintiff was complaining that Officer Cardoza was choking him and that he could not breathe. (Trial Tr., Day 3, 39:7-40:16; 56:18-20.) 81. Officer Cardoza testified that Plaintiff did not say he was Mr. Fowler’s counselor until after he was on the ground. (Trial Tr., Day 1, 36:18-23.) 82. However, Officer Rojas testified that he heard Plaintiff say, “I am his counselor,” prior to being placed in the carotid hold. (Trial Tr., Day 3, 66:12-67:4.) 83. Sgt. Kelly heard Plaintiff repeatedly yell, “I’m his counselor,” though he testified that at the time he did not understand what Plaintiff meant. During the struggle, he heard Officer Cardoza giving some commands, but he does not recall what they were. (Trial Tr., Day 3, 83:10— 17; 96:5-8; 97:8-16.) 84. Sgt. Kelly testified that he never heard Plaintiff either gag or gasp for air during the time he was in the carotid hold. (Trial Tr., Day 3, 81:22-82:7.) 85. As senior supervisor, Sgt. Kelly was required to take control of the scene, but he did not attempt to stop Officer Cardoza from using the carotid hold on Plaintiff. (Trial Tr., Day 3, 82:8:14.) 86. When Plaintiff was placed in the carotid hold, he lost control of his cell phone and it fell to the ground. (Trial Tr., Day 3,141:23-142:6.) 87. Sgt. Kelly could not recall where Officer Rojas was at this point, though he testified that Officer Rojas was close by. (Trial Tr., Day 3, 96:13-17.) 88. When Officer Cardoza released Plaintiff from the carotid hold, Plaintiff testified that he felt dizzy for approximately ten seconds, but did not lose consciousness. (Trial Tr., Day 3,193:2-8.) 89. With Sgt. Kelly’s help, Officer Rojas then handcuffed Plaintiff while he was still seated on the ground. After he was handcuffed, Officer Cardoza used a bent wrist control hold to bring Plaintiff to his feet. (Trial Tr., Day 1, 38:9-39:25; Trial Tr., Day 3, 83:18-23.) 90. A bent wrist hold is a force applied to a restrained person in handcuffs to get a subject to their feet. It bends the wrist against its natural movement and pinches the nerves in the wrist. It can be quite painful. (Trial Tr., Day 2, 58:19-59:10.) 91. Plaintiff testified that he complained that the wrist hold was hurting him, but Officer Cardoza continued to use the hold as he walked Plaintiff to Sgt. Kelly’s patrol car. He farther testified that Sgt. Kelly was present when Plaintiff complained that the hold was hurting his wrist. (Trial Tr., Day 3, 137:3-138:23.) 92. After being handcuffed, Plaintiff was initially escorted and placed in Sgt. Kelly’s patrol car by Officers Cardoza and Rojas. (Trial Tr., Day 3, 84:25-85:2; 137:15-16; 182:22-183:4.) 93. At the time Officer Cardoza had Plaintiff in the bent wristloek, Plaintiff told Officer Cardoza that he had choked him, that he had subjected him to excessive force by choking him because he was a black man, and that he was going to retain John Burris as an attorney to sue him. (Trial Tr., Day 1, 42:3-13.) 94. Officer Cardoza knew that Mr. Burris represented people who sued the police. (Trial Tr., Day 1, 45:24-46:1.) 95. After Plaintiff was in handcuffs, Sgt. Kelly knelt down next to Mr. Fowler. He did not notice any injuries or redness to Mr. Fowler’s face, or to any other part of Mr. Fowler’s body. Sgt. Kelly never heard Mr. Fowler complain of any pain. (Trial Tr., Day 3, 83:24-84:8; 84:21-24.) 96. After talking to Mr. Fowler and seeing the paramedics (who had arrived on the scene) place Mr. Fowler on a 5150 hold and take him away in an ambulance, Sgt. Kelly started to piece together that Plaintiff had been the one talking to Oakland police dispatch concerning the 5150 call that he had heard earlier. (Trial Tr., Day 3, 83:24-84:20.) 97. At no time before Mr. Fowler was taken away did anyone tell Sgt. Kelly that they saw injuries to Mr. Fowler. (Trial Tr., Day 3, 84:9-12.) 98. Officer Rojas testified that he told the paramedics that Mr. Fowler had been assaulted. He further testified that he might have also told them that Mr. Fowler had been punched in or around the eye. He is sure that he never named Plaintiff as the one that assaulted or punched Mr. Fowler. (Trial Tr., Day 3, 42:8-43:14.) 99. Under Sgt. Kelly’s orders, Plaintiff was then taken out of the police vehicle and released from the handcuffs. (Trial Tr., Day 3, 85:3-11.) 100. After some discussion, Sgt. Kelly decided that Plaintiff would not be arrested that night. Officer Cardoza testified that he did not agree with Officer Kelly’s decision because he believed that Plaintiff had battered Mr. Fowler. (Trial Tr., Day 1, 67:2-9; 86:4-87:5.) 101. Sgt. Kelly talked to Plaintiff for 15 to 20 minutes, at which time Plaintiff told him that Officer Cardoza had no reason to take him into custody and that he was going to file a complaint. (Trial Tr., Day 3,86:8-12; 99:8-14; 100:18-23.) 102. Plaintiff admitted to Sgt. Kelly that he pushed Mr. Fowler down to stop him from running in the street. (Trial Tr., Day 3,103:2-9.) 103. Sgt. Kelly testified that he did not recall Plaintiff complaining of any injuries arising from the incident, or that he was hurt and needed medical assistance. He further testified that, though paramedics were at the scene, he did not see Plaintiff request treatment. (Trial Tr., Day 3, 98:21-99:7.) 104. Sgt. Kelly testified that Plaintiff never told him that he passed out or lost consciousness, and that, if Plaintiff had made such a statement, he would have been required to write a special use of force report. (Trial Tr., Day 3, 102:5-12.) 105. Sgt. Kelly took a written statement from Plaintiff, but did not take one from Mr. Fowler. (Trial Tr., Day 3, 85:12-22.) 106. Sgt. Kelly testified that Plaintiff told him that he believed the officers had used force on him because he was black and that he planned to make a complaint about the officers conduct. Based on Plaintiffs statements, Sgt. Kelly provided him with a complaint pamphlet. (Trial Tr., Day 3, 86:4-15.) 107. After he left Plaintiff, Officer Cardoza spoke to Anthony Hodges, who had arrived at the scene of the incident. Officer Cardoza briefed Mr. Hodges on what had occurred, including telling Mr. Hodges that Plaintiff had hit Mr. Fowler in the face. (Trial Tr., Day 1, 43:21-44:2; 65:21-66:2.) C. Post-Incident Reports 1. Officers Rojas and Cardoza 108. After the incident, Officer Rojas and Officer Cardoza wrote their reports in the same room at the Eastmont Station, in the CRT office. (Trial Tr., Day 3, 43:25-44:9.) 109. Officer Rojas testified that he and Officer Cardoza did not talk about their reports as they prepared them. (Trial Tr., Day 3, 45:1-12.) 110. Prior to writing his report, Officer Cardoza did not take a statement from Mr. Fowler, nor did he take the statements of any witnesses at the scene or at any later time. Because he did not have a camera, Officer Cardoza did not take photographs of Mr. Fowler, and he did not call an evidence technician to do so. (Trial Tr., Day 1, 44:18-45:15.) 111. Prior to writing his report, Officer Cardoza did not attempt to talk to any medical professional who had rendered treatment to Mr. Fowler, including the paramedics who were dispatched to the scene. (Trial Tr., Day 1, 46:16-47:9.) 112. Prior to writing his report, Officer Rojas made no attempt to locate any independent witnesses, never took any statement from Mr. Fowler, and never made any arrangement to have photographs taken of any injuries to Mr. Fowler. (Trial Tr., Day 3, 45:13-24; 67:9-14.) 113. Officer Rojas testified that, before writing his report, he was aware that Plaintiff had threatened to sue him and Officer Cardoza, that Plaintiff had mentioned John Burris as an attorney he planned to retain, and that he knew Mr. Burris represented people who sued OPD. (Trial Tr., Day 3,12:19-13:7.) 114. In his narrative summary attached to the crime report, Officer Rojas states that he observed Plaintiff pushing Mr. Fowler into the garage door on Suter Street. As he stopped the vehicle, he saw Plaintiff punch Mr. Fowler in his right eye, slam him to the ground, and punch him two more times on his face and body with his closed fist. (Defs.’ Ex. A, OPD Crime Report No. 04-71888, p. 6.) 115. In his summary, Officer Rojas also states that Mr. Fowler informed him that Plaintiff had “punched him in the right eye, left side of his head, his upper body, and that he slammed into the garage and ground.” (Defs.’ Ex. A, p. 7.) 116. At no point in his summary does Officer Rojas document seeing any redness to Mr. Fowler’s face, or any other injury to Mr. Fowler. (Defs.’ Ex. A.) 117. When Officer Rojas finished his report, he gave it to Officer Cardoza. He testified that he did this because Officer Cardoza was his acting supervisor that night, and because Officer Cardoza would submit the entire report. (Trial Tr., Day 3, 44:10-18.) 118. In his narrative summary attached to the crime report, Officer Cardoza states that he observed Plaintiff use his left closed fist to throw a punch at Mr. Fowler’s right eye, violently throw him to the sidewalk, get on top of Mr. Fowler, and punch him with a right-handed closed fist. Officer Cardoza states that he observed Plaintiff punch Mr. Fowler two more times in the face and upper body area. (Defs.’ Ex. A, p. 3.) 119. Officer Cardoza also states that he recommended Plaintiff be arrested as a person causing pain to a dependent adult, and that a complaint warrant be issued for Plaintiffs arrest. (Defs.’ Ex. A, p. 5.) 120. In his summary, Officer Cardoza states that he observed some redness to Mr. Fowler’s right eye. (Defs.’ Ex. A, p. 5.) 2. Sergeant Kelly 121. Sgt. Kelly knew that the officers were going back to the substation together to write their reports, but he did not feel it was necessary to have them separated because it was a criminal report, which was no different than any time officers view a crime. (Trial Tr., Day 3,101:9-19.) 122. Sgt. Kelly signed off on and approved the reports of Officers Cardoza and Rojas. The purpose of reviewing and approving the reports was to make sure they were complete and accurate. He did not write a crime report of his own. (Trial Tr., Day 3, 86:22-24; 87:3-8) 123. Sgt. Kelly testified that he did not attempt to take Mr. Fowler’s statement at the scene because Mr. Fowler was agitated. He never interviewed Mr. Fowler or any other witness at a later time. (Trial Tr., Day 3, 85:20-22.) 124. Sgt. Kelly did not take any photographs of Mr. Fowler that night or on any other occasion. (Trial Tr., Day 3, 86:1-3; 86:25-87:2; 106:6-13.) 125. Sgt. Kelly testified that, based on Officer Cardoza’s statements about what he believed he saw occur between Plaintiff and Mr. Fowler, there was nothing to cause him to think that Officer Cardoza was not telling the truth. (Trial Tr., Day 3,100:12-17.) 126. Sgt. Kelly forwarded Plaintiffs statement in a letter of advisement to OPD Internal Affairs. He did this because he knew that Plaintiff planned to make a complaint against the officers. (Trial Tr., Day 3, 86:16-21.) 127. The purpose of the letter of advisement was to inform Internal Affairs that a citizen wanted to make a complaint and to allow Plaintiff to make a statement. Sgt. Kelly attached Officers Rojas and Cardoza’s crime report to the letter of advisement. (Trial Tr., Day 3, 106:1-12.) 128. In his letter of advisement to OPD Internal Affairs, Sgt. Kelly made no mention of any injuries to Mr. Fowler. (Trial Tr., Day 3, 87:9-16.) D. Testimony from Anthony Hodges and Jesse McDaniels 1. Anthony Hodges 129. When Mr. Hodges arrived at the scene of the incident that night, he did not get a chance to examine Mr. Fowler, but he did talk to him. (Trial Tr., Day 3, 211:20-212:3.) 130. He did not observe any injuries on Mr. Fowler. (Trial Tr., Day 3, 215:8-20.) 131. Mr. Hodges drove Plaintiff back to the Hodges facility and told him to write an incident report. (Trial Tr., Day 3, 145:2-8.) 132. Mr. Hodges said that Plaintiff would have to be removed from work until everything died down. (Trial Tr., Day 3, 145:12-15.) 133. August 10, 2004 was the last day Plaintiff worked at Hodges. (Trial Tr., Day 3,145:15-16.) 134. Mr. Hodges testified that Plaintiff was not authorized to grab Mr. Fowler or throw him down, and that he was terminated because Mr. Fowler and the officers at the scene told him that Plaintiff punched Mr. Fowler. (Trial Tr., Day 3, 210:16-211:7; 212:17-21.) 135. On cross-examination Mr. Hodges testified that even if the only way to stop Mr. Fowler from being hit by a car was the use of force, Plaintiff was not to put his hands on Mr. Fowler. (Trial Tr., Day 3, at 220:7-221:8.) However, on redirect Mr. Hodges testified that it would have been permissible for Plaintiff to grab Mr. Fowler by the arm to prevent him from running into the street, but it wasn’t permissible to take Mr. Fowler to the ground. (Trial Tr., Day 3, 222:7-14.) Mr. Hodges did not consider grabbing a patient’s arm “force.” (Trial Tr., Day 3, 223:2-5.) 136. On cross-examination, Mr. Hodges was played a portion of a telephonic statement he gave on November 14, 2004, to Sergeant Short, an Oakland Police Department Criminal Investigator, as part of the internal investigation. In that statement, Mr. Hodges told Officer Short that he obtained his information regarding what happened that night from the police officers. (Pl.’s Ex. 39, at 8'50".) 137. On the night of the incident, Mr. Hodges filled out a Vendor’s Special Incident Report regarding the events that occurred that night. He was required to file the report with the licensing board to inform them that there had been an incident. (Trial Tr., Day 3, 214:17-22.) 138. In the incident report, Mr. Hodges wrote, “I observed client. There are no bruises, cuts or lacerations.” (Trial Tr., Day 3, 215:16-20; PL’s Ex. 42.) 139. He did not write in the report that Plaintiff punched Mr. Fowler, or that Mr. Fowler had told him that Plaintiff punched him. (Trial Tr., Day 3, 215:21-216:4.) 140. Mr. Hodges did not have worker’s compensation at the time of the incident, but he was aware that Plaintiff intended to file a worker’s compensation claim shortly after the incident. (Trial Tr., Day 3, 217:20-218:5.) 2. Jesse McDaniels 141. Jesse McDaniels and Plaintiff are close friends who have known each other nearly all their lives. (Trial Tr., Day 2, 19:10-19.) 142. At the time of the August 10, 2004 incident, Mr. McDaniels was employed at Hodges as the nighttime facilitator. His shift started at 9:00 p.m. on August 10, 2004, and ended at 9:00 a.m. on August 11, 2004. (Trial Tr., Day 2,11:16-12:6.) 143. His duties included charting any injuries to the patients. He and the other employees had to take note immediately of anything they saw that was unusual and inform the owners of Hodges. (Trial Tr., Day 2, 9:4-18.) 144. When Mr. McDaniels arrived at Hodges for his shift on August 10, Mr. Fowler was not present. (Trial Tr., Day 2, 12:7-9.) 145. Mr. McDaniels testified that Mr. Fowler returned from the hospital on August 10, and the two spent about ten and a half hours together. (Trial Tr., Day 2, 12:18-13:2.) However, the emergency room records from the Alameda County Medical Center establish that Mr. Fowler was in the hospital overnight and not released until sometime after 9:00 a.m. on August 11, 2004. (Def.Ex. Q.) 146. On cross-examination, Mr. McDaniels testified that it would have been approximately 24 hours from the time of the incident until the time he saw Mr. Fowler during his shift on August 11. (Trial Tr., Day 2, 23:3-10.) 147. Mr. McDaniels assisted Mr. Fowler in showering the evening following the incident, and he did not see any injuries, bruising, or redness anywhere on his body or face. (Trial Tr., Day 2, 13:11-14:18.) 148. Mr. Fowler did not complain of any injuries to Mr. McDaniels. (Trial Tr., Day 2,14:19-21.) 149. On the morning of August 12, 2004, Mr. McDaniels helped Mr. Fowler get dressed. He had a full view of the back of Mr. Fowler’s neck and did not see any bruising or redness, nor did he see injury to any other part of his body or face. (Trial Tr., Day 2,15:15-17:2.) 150. Mr. McDaniels testified that, had he observed any injuries on Mr. Fowler, he understood that it was his legal duty to report them. (Trial Tr., Day 2, 17:7-16.) 151. Mr. McDaniels testified that he did not observe any injuries on Mr. Fowler’s face or body within a week after the August 10, 2004 incident. (Trial Tr., Day 2,18:13-23.) E. Expert Testimony & Rule 26 Reports 1. Plaintiff’s Expert 152. Roger Clark testified as an expert for Plaintiff. He became a Los Angeles County Deputy Sheriff in December of 1965, and retired as a Los Angeles County Sheriff on April 1, 1993. (Trial Tr., Day 2, 28:13-29:4.) 153. As part of his training, Mr. Clark received substantial training on the use of force, including the use of force in terms of physical control holds. (Trial Tr., Day 2, 30:12-22.) 154. Mr. Clark’s training in the use of force included training in carotid holds. (Trial Tr., Day 2, 30:23-25.) 155. Mr. Clark testified about the incident based partly upon his understanding of the incident recall (“CAD report”), a computer-generated memorialization of the 911 dispatch operator’s conversation with Plaintiff. (Trial Tr., Day 2, 42:22^13:23; PL’s Ex. 30.) 156. Based on the 911 tape and the CAD report, Mr. Clark testified that Officer Cardoza’s use of profanity (“What the fuck are you doing?”) was unprofessional, not what a reasonably trained officer would do, and not in accord with Peace Officer Standards and Training. (Trial Tr., Day 2, 49:24-50:14.) 157. Officer Cardoza should have used an effective verbalization, which would have been a command and an identification. (Trial Tr., Day 2, 50:14-17.) 158. A reasonably trained police officer would be expected to say “Oakland Police Officer,” or “Stop, police officer.” (Trial Tr., Day 2, 51:3-11.) 159. Because Officer Cardoza was wearing a jumpsuit, which is not typically known to the public as a police uniform, his verbalization should have been accompanied by a proper identification. (Trial Tr., Day 2, 51:12-24.) 160. In Mr. Clark’s opinion, Officer Cardoza’s attempt to grab Plaintiffs arm was inappropriate. Specifically, when grabbing in circumstances such as this incident, the expected response would be a jerk or pulling from the sudden intercession rather than an opportunity to comply. (Trial Tr., Day 2, 52:6-19.) 161. Whether Plaintiff had his back to Officer Cardoza is a key factor because Plaintiff would not know of his approach from behind, and it would be sudden and unexpected. (Trial Tr., Day 2, 52:20-53:5.) 162. Mr. Clark opined that Officer Cardoza’s choice to put Plaintiff in the carotid hold was far excessive and unnecessary for the circumstances. (Trial Tr., Day 2, 54:9-16.) 163. The purpose of the use of force is to gain control and compliance, and it has to be gauged to levels of conduct. The escalation to a very significant chokehold, carotid-type maneuver is not justified by the circumstances in this case. (Trial Tr., Day 2, 54:18-25.) 164. Inappropriate or unskilled use of a carotid hold can result in stroke, heart attack, crushing of the trachea, and death. (Trial Tr., Day 2, 55:1-10.) 165. Mr. Clark testified that choking is forbidden because it will only cause further struggle, even on a subconscious and instinctive basis, and is contrary to the objective of the use of force. (Trial Tr., Day 2, 55:19-56:4.) 166. If a carotid hold is applied improperly, it can interfere with the breathing of the person subjected to the hold. (Trial Tr., Day 2, 56:9-15.) 167. If the events occurred according to Plaintiffs version of the incident, no force was necessary. Plaintiff was willingly compliant and would have been, had the opportunity been afforded him. (Trial Tr., Day 2, 56:16-57:6.) 168. Mr. Clark saw nothing in the record that would justify Officer Cardoza’s use of the bent wrist lock. (Trial Tr., Day 2, 59:23-60:3.) 169. Given that Plaintiff was in handcuffs and had not demonstrated an unwillingness to stand up, it would have been preferable for the officers to get Plaintiff to his feet by reaching under his armpits and lifting him. (Trial Tr., Day 2, 83:21-84:6.) 170. Officer Rojas had a duty to intervene to prevent harm from occurring. (Trial Tr., Day 2, 57:13-19.) 171. Sgt. Kelly had a duty to intervene on two levels- — as an officer at the scene and as the person of rank. (Trial Tr., Day 2, 57:20-58:1.) 172. None of the officers present or in close proximity reported any attempt to stop, or even reduce, the excessive and potentially deadly force inflicted on Plaintiff. Therefore, the officers failed in their duty to intervene. (Pl.’s Ex. 35 (Expert Report of Roger Clark), p. 3.) 173. In cases involving allegations of force, it is required and necessary for the sergeant doing the investigation to document any injuries (Trial Tr., Day 2, 61:18— 62:1.) 174. Had Officer Rojas seen any injury to Mr. Fowler’s face or chest, Mr. Clark would expect that Officer Rojas would have recorded it in his report and taken pictures at the scene or at the hospital. (Trial Tr., Day 2, 62:912-62:19-63.6.) 175. It was not reasonable for Sgt. Kelly to omit documentation and photographs of Mr. Fowler’s injuries. (Trial Tr., Day 2, 64:10-18.) 176. In the context of the allegations made by Plaintiff, protocol dictates that officers would be kept separate until statements and written reports were completed. (Trial Tr., Day 2, 66:11-16.) 177. Sgt. Kelly failed to follow the expected protocols, and did not meet his responsibility as a sergeant supervisor at the scene to gather the facts and document this incident so it could be truthfully reported. (Trial Tr., Day 2, 66:17-25.) 178. Even if Officers Cardoza and Rojas were on a special assignment, they should still connect with the regular broadcast channel for the area, and they should have been aware of the 5150. (Trial Tr., Day 2, 71:18-73:14.) 179. Reasonably trained undercover officers know the fundamental importance of maintaining a constant communications link with the dispatch center during their operations. Officers Rojas and Cardoza’s undercover deployment without the requisite equipment to remain in contact with the OPD communications center demonstrated a deliberate disregard for Plaintiffs life and safety. (Pl.’s Ex. 35, p. 2.) 2. Defendants ’ Expert 180. Scott Seaman testified as an expert for Defendants. He has been Chief of Police for the Las Gatos/Monte Sereno Police Department for five years, and has been a police officer since 1975. (Trial Tr., Day 2,105:16-106:5.) 181. Chief Seaman both received and provided extensive training in the areas of use of force and arrest techniques. (Defs.’ Ex. R (Expert Report of Scott R. Seaman), p. 1.) 182. Chief Seaman has served as an instructor in arrest techniques at the Koga Institute from 1979 to the present, and from 1977 to the present has taught a range of techniques to police academy students and San Jose police officers. (Trial Tr., Day 2,109:12-110:21.) 183. Chief Seaman testified based on the depositions of the officers, the internal affairs report, Sgt. Kelly’s letter of advisement, and the officers’ reports. (Trial Tr., Day 2, 141:15-142:5.) His testimony is based on the assumption that none of the three officers ever saw Mr. Fowler or Plaintiff in the roadway before seeing Plaintiff push Mr. Fowler toward the house. (Trial Tr., Day 2, 142:21-143: 1.) 184. He testified that, assuming the incident occurred according to Officers Rojas and Cardoza’s version of the facts, there would have been a lawful basis for them to intercede and he would have expected them to do so. (Trial Tr., Day 2, 122:11-20.) 185. Where officers approach an incident in an unmarked police car with one officer in plainclothes and the other in a utility uniform, Chief Seaman testified that the response of reasonable officers would be to first identify themselves as police officers. (Trial Tr., Day 2, 122:21-123:10.) 186. Chief Seaman listened to the recording of the 911 call; he never heard Officer Cardoza or Officer Rojas announce themselves as Oakland Police. However, he based his testimony on the assumption that they did announce themselves as Oakland Police, as they both testified. (Trial Tr., Day 2, at 143:23-144:22.) 187. Chief Seaman opined that Officer Cardoza’s statement, “What the fuck are you doing?” was not appropriate, was unprofessional, was not helpful, and may have provoked the incident. (Trial Tr., Day 2,145:12-147:10.) 188. If, after identifying themselves as Oakland Police, the officers then gave a verbal command to Plaintiff to put his hands behind his back and he failed to comply, Chief Seaman testified that he could envision that an officer would attempt physical control. (Trial Tr., Day 2, 125:2-21.) 189. An attempt by an officer to grab a subject’s arm in this situation would be appropriate. If the suspect were to forcefully jerk his arm away in response, Chief Seaman sees this as a violent resistance to a police officer trying to stop a crime. (Trial Tr., Day 2,124:22-125:7.) 190. If the officer’s verbal commands, physical presence, and hand methods have been met with resistance, another method to take control of the situation, such as taking the subject to the ground, using a more controlling hold, or using pepper spray on the subject would be appropriate, depending on the circumstances. (Trial Tr., Day 2,125:13-23.) 191. An alternative would have been to tell Plaintiff to get down on the ground in a spread-eagle position. This would have limited his ability to flee. (Trial Tr., Day 2,147:11-148:1.) 192. If Plaintiffs account was correct and he did put his hands above his head, even though Officer Cardoza told him to put his hands behind his back, this is an indication of submission to authority and Officer Cardoza should not have used force to take control of him. (Trial Tr., Day 2, 148:17-149:18.) 193. Chief Seaman opined that, assuming the officers’ version of the facts is correct, the carotid takedown hold that Officer Cardoza employed was a reasonable next alternative. (Trial Tr., Day 2, 126:17-127:6.) If Plaintiffs account of the incident were correct, that he neither punched Mr. Fowler nor threw him into the garage door, and only restrained him from running in front of the oncoming SUV, then Officer Cardoza’s use of the carotid restraint was less appropriate. (Trial Tr., Day 2, at 156:11-24.) 194. Chief Seaman knew from reading Officer Cardoza’s deposition that he had only used the carotid hold on a subject one time before using it on Plaintiff. (Trial Tr., Day 2, at 143:2-22.) 195. Through his training, Chief Seaman has experience with the takedown method utilized by Officer Cardoza. He testified that the method was a takedown hold where the carotid hold itself was not applied, but where he was able to safely take Plaintiff to the ground and diffuse the situation. (Trial Tr., Day 2, 126:21-128:4.) The hold is slightly different than the one Chief Seaman teaches and was taught, but he found it a proper application of a take down for the situation. (Trial Tr., Day 2, 128:4-8.) 196. To act in accordance with the OPD bulletin regarding a takedown from the rear, it is important for officers employing the hold Officer Cardoza testified to using to position their arm in order to either apply pressure to or keep pressure away from the neck. (Trial Tr., Day 2, 129:19-130:19.) 197. The pressure applied to a subject’s neck in the type of hold Officer Cardoza described and demonstrated at trial is not the same as an actual application of pressure to the carotid artery, although the arm is generally in the same position. (Trial Tr., Day 2, 132:17-133:4.) 198. Even if pressure is applied to the carotid artery to cause the subject to lose consciousness, the subject is still able to breathe. There should not be any choking with the application of pressure to the carotid artery, though there is a feeling of constriction because the sides of the neck are being compressed. This should not create a choking sensation. (Trial Tr., Day 2,133:5-134:5.) 199. Assuming the takedown did follow a violent arm jerk by Plaintiff, the purpose of placing him in handcuffs would have been to ensure the safety of the officers, Mr. Fowler, and Plaintiff. (Trial Tr., Day 2,134:13-135:3.) 200. Once a subject is in handcuffs in the seated position, the preferred method to stand them up is the use of the bent wrist hold. It is an appropriate and recognized method for controlling a person while standing them up. The hold can be used to apply force, but does not necessarily have to be painful. Chief Seaman has been trained in the bent wrist hold and has taught it for 30 years. (Trial Tr., Day 2, 135:6-11; 135:17-20; 136:10-12.) 201. Standing someone up from a seated position is not easy to do without the subject’s help, and the bent wrist hold is designed to allow the officer to get a person to their feet and still be holding on in a way that the officer can regain control, should the subject try to get away. (Trial Tr., Day 2,137:6-16.) 202. If force is applied beyond what is necessary to overcome resistance or achieve compliance, then the use of the bent wrist hold is excessive. (Trial Tr., Day 2,154:17-155:9.) 203. Chief Seaman testified that the conduct of Officer Cardoza, according to the officers’ version of the facts, was objectively reasonable. Even if the officers did have information that Plaintiff and Mr. Fowler were awaiting assistance on a 5150 call, had the situation occurred according to Officer Cardoza’s testimony, they acted appropriately and reasonably under the circumstances. (Trial Tr., Day 2, 137:25-138:21.) 204. It was objectively reasonable for Officers Cardoza and Rojas to be operating on a separate tactical radio channel, and it was not improper that they were not consistently tuned to the regular broadcast channel during the course of the auto theft assignment. (Trial Tr., Day 2, 119:19— 120:6.) 205. Although there is not a specific rule regarding contact with the main broadcast channel, there is a general practice of maintaining communication when on a different channel in the patrol district. (Trial Tr., Day 2, 121:1-14.) 206. Chief Seaman would have expected that the officers would have taken steps to better document the evidence of an assault on Mr. Fowler by specifically listing the evidence of injury/redness and by taking a more detailed statement from Mr. Fowler, or by taking photographs of the redness either at the time or at a later time. (Defs.’ Ex. R, p. 4.) 207. Officer Rojas should have documented his observations of redness on Mr. Fowler in his report. (Defs.’ Ex. R, p. 4.) 208. Chief Seaman would expect the officers to take steps to determine if there are independent witnesses and take statements from those witnesses. (Defs.’ Ex. R, p. 4.) F. California Department of Social Services Accusation and Exclusion Action 209. As a result of the August 10, 2004 incident, the California Department of Social Services (“DSS”) brought an Accusation and Exclusion Action against Plaintiff. The purpose of the exclusion action was to determine whether Plaintiff should be excluded from all of the department’s licensed facilities. (Pl.’s Ex. 1 (Decision of Administrative Law Judge (“ALJ”) Jonathan Lew and dismissal of DSS exclusion action against Plaintiff); PL’s Ex. 2 (May 4, 2005 DSS Hearing), ¶¶. 5, 9; Trial Tr., Day 3,160:14-161:6.) 210. At the May 4, 2005 DSS hearing before ALJ Lew, Sgt. Kelly, Officer Rojas, and Officer Cardoza all testified against Plaintiff. Plaintiff represented himself. (PL’s Ex. 2; Trial Tr., Day 3, 160:14-161:12.) 211. Officer Rojas testified that he first observed Plaintiff punch Mr. Fowler and then slam him into the garage door on Suter. Officer Rojas further testified that Mr. Fowler fell to the ground, at which point he observed Plaintiff on top of him, punching him a couple more times. (PL’s Ex. 2, 21:5-16.) 212. Officer Rojas testified that Plaintiff punched Mr. Fowler twice in the face and once on the side of his body. (PL’s Ex. 2, 23:19-24:20.) 213. Officer Cardoza testified that he observed Plaintiff push Mr. Fowler into the garage door, strike him with a left closed fist, and strike him approximately three to four times total. (PL’s Ex. 2, 81:1-16.) 214. Officer Cardoza testified that he was “one hundred percent sure ... that [Plaintiff] punched [Mr. Fowler] several times in [his] presence.” (PL’s Ex. 2, 93:8-10.) 215. Sgt. Kelly testified that he saw Plaintiff and Mr. Fowler motioning to him, but he had “neighbors coming out and asking what was happening, it was like a circus.” He further testified that he drove to the stop sign, at which point he saw Plaintiff and Mr. Fowler “pushing, shoving doing something by the sidewalk.” (PL’s Ex. 2, 71:2-21.) 216. Sgt. Kelly testified that he never saw Plaintiff on top of Mr. Fowler, punch Mr. Fowler, or throw him into the garage door. (PL’s Ex. 2, 73:6-13.) 217. On May 16, 2005, ALJ Lew determined that Plaintiff had not “engaged in any conduct on August 10, 2004, that violated the personal rights, or that was inimical to the health, morals, welfare or safety of [Mr. Fowler].” Accordingly, the exclusion action against Plaintiff was dismissed. (PL’s Ex. 1, p. 5.) G. OPD Internal Affairs Investigation and Alameda County Superior Court Proceedings 218. As a result of Plaintiffs complaint, OPD Internal Affairs conducted an investigation of the August 10, 2004 incident, and criminal charges were also brought against Plaintiff in the Alameda County Superior Court. Although neither party presented much in the way of testimony or other evidence regarding these two proceedings, it appears that the internal affairs investigation resulted in an exoneration of all officers (with the exception of Officer Cardoza’s use of the profane statement), while the superior court case was resolved in Plaintiffs favor. (Trial Tr., Day 3, 11:8— 12:20, 161:13-22; Dkt. #49) (Pl.’s Trial Brief, 5:22-25.) H. Medical Expenses Related to the August 10, 2004 Incident 219. On August 11, 2004, the day after the incident, Plaintiff sought medical treatment for his injuries at Kaiser Permanente in Oakland. (Trial Tr., Day 3, 145:22-146:3; PL’s Exs. 27.1 and 27.2, (Kaiser medical and billing records).) 220. Plaintiff complained that his wrist was swollen, he had difficulty swallowing, and that he had pain in his throat from the carotid hold. X-rays were taken and Plaintiff was prescribed Vicodin for pain, and his arm was placed in a sling. (Trial Tr., Day 3, 146:7-20; PL’s Exs. 27.1 and 27.2.) 221. The following week, on August 18, 2004, when his injuries had not resolved, Plaintiff sought further treatment at the Alameda County Medical Center’s Highland Hospital. (Trial Tr., Day 3, 146:21-25; PL’s Exs. 26.1 and 26.2 (Highland Hospital medical and billing records).) 222. At Highland Hospital, Plaintiffs complaints included continuing pain in his neck, difficulty spitting, and a sensation of compression. X-rays were taken of Plaintiffs neck, and he was informed that he had soft-tissue damage to his neck. (Trial Tr., Day 3, 148:4-12; PL’s Exs. 26.1 and 26.2.) 223. After learning that the Hodges facility failed to carry workers’ compensation insurance, Plaintiff filed a claim for compensation with the State of California Uninsured Employers Fund. (Trial Tr., Day 3,147:18-23; 148:16-18; 218:2-5.) 224. Plaintiff thereafter returned for further medical treatment at Kaiser Permanente and Highland Hospital. At Highland, he received a prescription for Prozac because he was experiencing depression related to the incident and the pending criminal and civil investigations that followed. (Trial Tr., Day 3, 149:13-24.) 225. When the pain in Plaintiffs wrist, neck and shoulders did not subside, he sought chiropractic treatment from Russell S. Kun, D.C., at Kun Chiropractic. (Trial Tr., Day 3, 150:19-151:18; PL’s Exs. 28.1 and 28.2, (Kun Chiropractic billing and medical records).) 226. Dr. Kun’s treatment helped the pain resolve. At the time of the trial, Plaintiff was pain and injury free. (Trial Tr., Day 3,151:9-15) 227. Plaintiff settled his claim with the Uninsured Employer’s Fund, which included a settlement of the his medical liens with Dr. Kun and Kaiser Permanente. (Trial Tr., Day 3, 150:6-12.) The settlement amount for Dr. Kun’s claim was $8,000.00. The settlement amount for Kaiser Permanente was $992.10. (Trial Tr., Day 3,152:23-153:11; PL’s Ex. 50.) 228. The total cost for Plaintiffs two visits to Highland Hospital, one on August 18, 2004 and the other on September 17, 2004, was $663.10. (Trial Tr., Day 3, 154:11-25; PL’s Ex. 50; PL’s Exs. 26.1 through 28.2.) 229. In total, Plaintiffs claimed medical expenses incurred as a result of the August 10, 2004 incident total $9,655.20. (Trial Tr., Day 3,151:16-155:3.) I. Claimed Lost Wages as a Result of the August 10, 2004 Incident 230. Plaintiff also alleges wage loss damages as a result of Defendants’ conduct. 231. At the time of the incident, Plaintiff was an hourly employee at Hodges, making $8.50 per hour. He normally worked a 40-hour week, but would work approximately 10 hours per week of overtime. Between June 2004 and August 10, 2004, Plaintiff made a total of $5,136.88 at Hodges. (Trial Tr., Day 3, 155:4-156:8; PL’s Ex. 29 (2004 W-2 Wage and Tax Statement from Hodges Residential Facility).) Plaintiff testified that he earned approximately $2,500 per month at Hodges. (Trial Tr., Day 3,161:23-25.) 232. Plaintiff alleges that he was unable to return to work immediately due to the injuries he sustained during the incident, and because he was fearful that he would not be able to find gainful employment in his field because of the allegations made against him by the OPD and DSS. (Trial Tr., Day 3, 156:9-157:6; 157:17-158:5.) 233. Plaintiff testified that Mr. Hodges fired him after he filed his compensation claim with the State of California Uninsured Employer’s Fund. (Trial Tr., Day 3, 149:25-150:5.) 234. In February 2005, Plaintiff obtained employment as a Recovery Counselor I at Thunder Road Adolescent Treatment Center (“Thunder Road”) in Oakland, California, and he begin working there on February 11, 2005. Plaintiff earned $10.50 per hour. (Trial Tr., Day 3, 157:7_7_15; 158:2-159:8; 162:5-8; Defs.’s Ex. L.) 235. While employed at Thunder Road, Plaintiff learned of the allegation filed against him by the California Department of Social Services, and he disclosed this fact to Thunder Road. (Trial Tr., Day 3, 158:2-159:2; 162:18-20.) 236. Thunder Road terminated Plaintiff on March 18, 2005. On Plaintiffs Separation Notice, Thunder Road listed “Difficulty working w/ staff’ as the reason for his termination. (Defs.’ Ex. L.) 237. Plaintiff testified that after he was terminated from Thunder Road, he focused his energy on exonerating himself in the criminal and administrative proceedings commenced as a result of the reports filed by Officers Rojas and Cardoza. (Trial Tr., Day 3, 159:9-159:13.) This defense included making a significant effort to obtain the 911 dispatch recording he believed would exonerate him. (Trial Tr., Day 3, 159:14-160:13.) 238. After he received the ALJ’s decision, Plaintiff decided not to resume his career in social services, and instead enrolled at Chabot College. (Trial Tr., Day 3,163:11-19.) 239. Prior to working at Hodges, Plaintiff held jobs in the social service area as a counselor at R & R Educational Home, Greater New Beginnings, Mary’s Help, Anova Behavior and Consultation, Baker Places, and the California Autism Foundation. (Trial Tr., Day 3,116:7-121:11.) III. CONCLUSIONS OF LAW A. Jurisdiction and Venue 1. The Court has federal question jurisdiction to decide this action brought under the authority of 42 U.S.C. § 1983. 28 U.S.C. § 1331. The court has supplemental jurisdiction over Plaintiffs state law claims. 28 U.S.C. § 1367. 2. Venue is proper because the events giving rise to Plaintiffs claims occurred in Alameda County, which is within the Northern District of California. 28 U.S.C. § 1391(b). B. Excessive Force under 42 U.S.C. § 1983 3. Plaintiffs first cause of action is for excessive force under § 1983 against Officer Cardoza, Officer Rojas, and Sgt. Kelly. 4. Section 1983 provides that: Every person who, under the color of any statute ... subjects ... an