RICHARD DOYLE, City Attomey (#88625) NORA FRIMANN, Chief Trial Atfomey (#93240) SHANNON SMYTH-MENDOZA, Sr. Deputy City Attomey (#188509) Office of the City Attorney 200 East Santa Clara Street San José, California 95113-1905 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov |Attomeys for OFFICER FLORES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA. SAN JOSE DIVISION JAMES ALLEN BUSH, Case Number: 09-CV-01024 (RS) Plaintiff, REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS’ v. MOTION FOR SUMMARY JUDGMENT OFFICER FLORES, Defendants. 1. INTRODUCTION Defendant Flores hereby submits his reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment’ (Docket No. 100). Plaintiff's arguments are almost entirely rhetorical and conclusory. The facts presented by Defendant establish that the officers did have probable cause to arrest Plaintiff and used reasonable force to effect the arrest. Even if the Court were to ultimately hold that probable cause was absent or that the force used by the officers was ‘excessive, Defendant Flores would still be entitled to immunity. Defendant Flores’ motion for summary judgment should be granted in full. Wy my * Although Docket No.100 indicates that it was “fied” on September 2, 200, the Notice of Electronic Filing was nat ent counsel for Detendent unt 4:19pm, on September 8, 2010, REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENTI. GONCLUSION For the foregoing reasons, and for all the reasons set forth in Defendant's Motion for Summary Judgment, judgment should be granted in favor of City Defendant Officer Flores, and this case should be dismissed. Respectfully submitted, Dated: September 10, 2010 RICHARD DOYLE, City Attorney By: Isl SHANNON SMYTH-MENDOZA Sr. Deputy City Attorney Attorneys for OFFICER FLORES 5 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION FOR SUNMARY JUDGMENTn LEGAL ARGUMENT Plaintiff's’ assertions of misconduct in his Opposition are often completely unsupported by any evidence. Moreover, Plaintiff does not deny that he failed to initially comply with the officers’ commands. (Docket No. 100, at 8:2-6). A. PLAINTIFF'S OPPOSITION FAILS TO ESTABLISH A GENUINE ISSUE FOR Although Plaintiff has fairly accurately set forth the applicable case law as it applies. to the legal issues in this case, he has failed to present specific facts and instead, attempts to rely upon allegations and/or denials. FRCP 56(e)(2). It is well-established that once a moving party seeking summary judgment meets its burden, the burden shifts to the responding party who must then present specific facts showing that a triable issue of fact exists. British Aiways Board v. Boeing Co., 585 F.2d 946, 950-52 (8th Cir. 1978), cert. denied 440 U.S. 981 (1979). Plaintiff here fails to meet his burden by not presenting any evidence to contradict the factual statements in the Dectaration of Officer Miguel Flores in Support of Defendants’ Motion for Summary Judgment. (See Docket No. 61). Rather, Plaintiff merely states that “Defendant Flores did not have a reasonable suspicion of any crime prior to plaintiff's arrest’. (Docket No. 100, at 5:11-13). This unsupported statement is insufficient to overcome summary judgment. B. PLAINTIFF CANNOT, AS A MATTER OF LAW, ESTABLISH A The information known to the officers at the time of Plaintiff's arrest constituted probable cause to support the arrest of Plaintiff. Even before the officers arrived at the ‘scene, they were informed that Plaintiff had prior contact with the San Jose police, was reported to have had a knife and to carry hypodermic needles, and was on active search/seizure probation. (Docket No. 61, at {If/4 and 5). 2 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT