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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

James Alan Bush, Plaintiff, v. Officer Miguel Flores (#3881), Defendant.

Case No. 09-cv-01024 (PR) RS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P., Rule 56] Judge Richard Seeborg

INTRODUCTION Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff files his Opposition to Defendants Flores and City of San Jose Motion for Summary Judgment. In this opposition, Plaintiff will show that, for the purposes of determining whether Defendant Flores is entitled to qualified immunity, Defendant Flores exercised the use of force during Plaintiffs arrest that was objectively unreasonable. Plaintiff will also show that a genuine issue of material fact exists as to whether the amount of force used was OPPOSITION PAGE 1 OF 17 09-cv-01024 (PR) RS

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excessive and unreasonable. FACTS When the events at issue in this case took place, Plaintiff was in his apartment, resting in bed while suffering from an acute sinus infection for which he was under the care of a physician. Shortly before Defendant Flores arrival, Plaintiffs roommate, Mr. Long Thang Cao, received a phone call from the defendant, which served as a prearranged signal to him to open both the apartment and apartment building doors. As Mr. Cao opened, and left open, both doors, Defendant Flores yanked Mr. Cao outside and then entered the apartment building hallway. According to Mr. Caos testimony in a related criminal proceeding, Defendant Flores yelled to plaintiff to exit his apartment, which plaintiff did immediately. At no time did plaintiff yell at Defendant Flores, nor did Defendant Flores knock on or request that plaintiff open his already open apartment door, nor did Defendant Flores identify himself or announce his intention to arrest the plaintiff -- all facts corroborated by Mr. Cao under oath, and, in part, by Defendant Flores in the same proceeding. Plaintiff, who had been sleeping as a result of an illness, and who was awakened suddenly by the shouting of the defendant and the brandishing of guns, which left him in a confused and disoriented and intimidated state, asked the defendant to identify himself, due to the fact that the lights in the apartment building hallway were turned off and flashlights were shown directly in plaintiffs eyes, rendering plaintiff unable to ascertain visually the identity of the defendant as a police officer. Without complying with plaintiffs request, and without warning, OPPOSITION PAGE 2 OF 17 09-cv-01024 (PR) RS

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Defendant Flores deployed his Taser at point-blank range, which caused plaintiffs rib to shatter, Defendant Flores then ordered plaintiff to lay face-down on the ground and put his arms behind his back, which plaintiff did. Defendant Flores, after turning on the hallway lights, ground his knee into plaintiffs back with such force as to break plaintiffs rib while applying the handcuffs. After the plaintiff was secured, Defendant Flores yanked plaintiff to his feet by his left arm, causing the avulsion of a shoulder bone. Defendant Flores abuse of the plaintiff continued during an interrogation in a hospital emergency room approximately an hour later, where Defendant Flores repeatedly ordered the plaintiff to sit up in his hospital bed, even though plaintiff had a Taser prong embedded in his rib and ha suffered multiple fractures at the hands of the defendant only an hour prior. LEGAL ARGUMENT Contrary to the legal argument presented in Defendants Motion for Summary Judgment, the standard of reasonableness for the purposes of a determination of qualified immunity in an excessive force case is distinct from the standard of reasonableness embodied in the Fourth Amendment. A court hearing an excessive force claim must ask first whether the facts, when taken in the light most favorable to the plaintiff (versus the officer), would establish a violation of the Fourth Amendment, and only if the answer is affirmative should the court address the immunity issue, which focuses on whether the law was clearly established at the time of the incident (see Section III.). [Robinson v. Solano County, 278 F.3d 1007 (2002) ]. OPPOSITION PAGE 3 OF 17 09-cv-01024 (PR) RS

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I.

DEFENDANT FLORES USED EXCESSIVE AND UNREASONABLE FORCE DURING THE COURSE OF PLAINTIFFS ARREST The question as to whether the use of force is objectively reasonable for the purposes of an excessive force claim is determined by analyzing the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officer or others, whether he actively resisted arrest or attempted to evade arrest by flight, whether the physical force applied was of such an extent as to lead to an injury, the possibility that the plaintiff was violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the plaintiff was armed, and the number of persons with whom the officer must contend at one time [Brown v. Rinehart, 575 F. Supp. 2d 620 (D. Del. 2008); Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005); Leopardi v. Township of Maple Shade, 363 N.J. Super. 313, 832 A.2d 943 (App. Div. 2003) ].

II. PLAINTIFF COMMITTED NO CRIMES PRIOR TO HIS ARREST NOR WAS HE SUBSEQUENTLY CONVICTED OF CRIMES FOR WHICH HE WAS ARRESTED Defendant Flores did not have a reasonable suspicion of any crime prior to plaintiffs arrest; moreover, all charges filed by Defendant Flores against the plaintiff were either dropped or dismissed. Furthermore, Plaintiff had not committed any crime in the presence of Defendant Flores, and, thus, no exigent circumstances existed to support the use of force or the degree of force used. Finally, Plaintiff has never been arrested for arson or any other offense that involved knives or needles. Plaintiff also has never been convicted or any violent crime. OPPOSITION PAGE 4 OF 17 09-cv-01024 (PR) RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III.

In Bailey v. Kennedy, 349 F.3d 731 (4th Cir. 2003), it was established that the amount of force used by police officers in subduing the plaintiff, who had not committed any crime and had incurred shoulder injuries, was excessive for Fourth Amendment purposes, especially considering that the plaintiff was bound hand and foot and lying face-down on the floor, and, therefore, there was no reason to believe that the plaintiff was a danger to himself or others, including the officer. PLAINTIFF POSED NO THREAT TO THE SAFETY OF DEFENDANT FLORES OR OTHERS DURING AND AFTER HIS ARREST Plaintiff, the only person who was present besides the officers involved and the only person subjected to arrest, was outnumbered 4 to 1. The police officers involved, including Defendant Flores, were armed, whereas Plaintiff was not; moreover, per Defendant Flores testimony in a related criminal proceeding, Plaintiff was not suspected of having any weapons at the time of his arrest, and, because the plaintiff was wearing only a pair of tight-fitting jeans with no bulging pockets, the fact that plaintiff had no weapons was immediately discernible to Defendant Flores. Plaintiff exhibited no violent or dangerous behavior before or after he was secured and under the control of the defendant, especially afterwards, when the majority of Plaintiffs injuries occurred. The act of exiting Plaintiffs apartment and of facing the defendant as instructed, which was described by Defendant Flores as the squaring of Plaintiffs shoulders, could not have been reasonably interpreted as a threatening gesture, especially considering the size, age and weight of each of the four officers relative to that OPPOSITION PAGE 5 OF 17 09-cv-01024 (PR) RS

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of the plaintiff, and considering that this act could not have been interpreted as active resistance or an attempt to flee. Plaintiff contends that Defendant Flores behavior and conduct upon entering the plaintiffs apartment building was of such a nature to make the plaintiff fear for his life. Without warning to the plaintiff, and without identifying themselves, Defendant Flores, with gun drawn and shouting, made a motion as though he was about to discharge a firearm, and, accordingly, it is sufficient that the apprehension suffered by the plaintiff was that of a reasonable man under the same circumstances. After all, Plaintiff had committed no crime in the presence of the defendant or any crime for which he subsequently convicted, making it unreasonable for him to assume he was under arrest. Thus, the acts of Defendant Flores in making the arrest should not have been done in a threatening and menacing manner. Furthermore, Plaintiffs alleged failure to immediately comply with Defendant Flores orders to lay on the ground should not be considered a threatening gesture or active resistance. In Brown v. City of Golden Valley, 534 F. Supp. 2d 984 (D. Minn. 2008), it was clearly established at the time of the arrest, that a city police officers tasering of a nonviolent arrestee without warning constituted an unreasonable exercise of force, and thus an officer was not entitled to qualified immunity from the arrestees 1983 claim for excessive force under the Fourth Amendment; the arrestee was nonviolent, was not fleeing or resisting arrest, and was suspected of only a minor, nonviolent crime, having disobeyed two orders to get off the telephone with a 911 operator. OPPOSITION PAGE 6 OF 17 09-cv-01024 (PR) RS

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IV.

DEFENDANT FLORES EXERCISE OF FORCE CAUSED SIGNIFICANT PHYSICAL INJURY TO PLAINTIFF AND CONTINUED TO USE FORCE FOR UP TO ONE HOUR AFTER PLAINTIFF WAS SECURED Any use of serious physical force by a police officer, especially force substantial enough to cause a significant injury, after plaintiff was handcuffed, is objectively unreasonable for the purposes of a police officers qualified immunity defense to an excessive force claim arising from an arrest [Polk v. Hopkins, 129 Fed. Appx. 285, 2005 FED App. 0336N (6th Cir. 2005) ]. According to plaintiffs medical records (see related note below), Defendant Flores deployed a Taser at plaintiff at point-blank range, which caused plaintiffs rib to shatter due to Defendant Flores proximity to the plaintiff and the velocity at which a Taser prong travels when deployed. As plaintiff lay face-down on the ground with his hands behind his back, Defendant Flores ground his knee into plaintiffs back directly above the Taser prong with enough pressure and force to cause a second, distinct injury, namely, a broken rib. After securing plaintiff with handcuffs, Defendant Flores yanked plaintiffs arm with such force as to cause an avulsion to a shoulder bone. (See Exhibit A.) Per Dr. Cazmo J. Lukrich, M.D., plaintiffs physician, all of the aforedescribed injuries were sustained exactly as plaintiff describes. In Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), the court held that a police officers application of substantial or significant pressure on a suspects back while that suspect is in a face-down,

OPPOSITION

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prone position after being subdued and/or incapacitated constitutes excessive force under the Fourth Amendment requirements. Also, in Byrd v. Clark (1986, CA11 Ga) 783 F.2d 1002, a court held that evidence in a Title 42 U.S.C.A. 1983 action involving injuries received by a plaintiff during a scuffle with police at a police station was sufficient to preclude summary judgment on the issue of excessive force, where the evidence showed that, while there may have been some justification for the officers use of force against the plaintiff, there was a dispute as to whether the force was applied after the plaintiff ceased to resist the officer, and whether the injuries were sufficiently serious to the plaintiffs shoulder, since the severity of the injury, while not a determinative factor in assessing whether or not a constitutional violation has occurred, is certainly probative of the amount of force used. {See Section III.] An hour later, while plaintiff was in the emergency room, Defendant Flores repeatedly ordered the plaintiff to sit up while he and another investigator interrogated him, even though the plaintiff had just sustained multiple fractures at the hands of Defendant Flores. A note about proof of plaintiffs injuries: Plaintiff intended to offer answers to interrogatories from Dr. Cazmo J. Lukrich, M.D., an employee of Defendant Santa Clara County Department of Correction, in order to prove the continued and excessive use of force by Defendant Flores after the plaintiff was retrained and to establish which injuries sustained by the plaintiff resulted directly and only from a use of force that was clearly excessive; however, because the Clerk failed to properly serve the OPPOSITION PAGE 8 OF 17 09-cv-01024 (PR) RS

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aforementioned defendant, Plaintiff was precluded from obtaining an order compelling an answer to the aforementioned interrogatories, which was denied on the ground that Santa Clara County Department of Correction is not a named defendant. Should the Court had still considered denying Plaintiffs Motion to Compel Answer to Interrogatories even if the aforementioned defendant had been properly served, Plaintiff cites Crawford-El v. Britton, 118 S. Ct. 1584 (U.S. 1998), in which the court state that a trial judge should give priority to discovery concerning issues that bear upon the qualified immunity defense asserted by a government official, such as actions that the official actually took, since that defense should be resolved as early as possible. This case law citation also could be applied to the denial of Plaintiffs Motion to Compel Discovery against Defendant Flores, which sought an order compelling Defendant Flores to answer interrogatories which sought information relevant to overcome the defense of qualified immunity. The Court denied Plaintiffs motion on the ground that Defendant Flores answered 25 interrogatories already, and that, when Plaintiff propounded a set of interrogatories upon Defendant Flores, which are erroneously described as additional, that the plaintiff exceeded the 25-question limit. In fact, Defendant Flores never answered any interrogatories propounded upon him, and has thus far failed to demonstrate otherwise; rather, Defendant Flores filed objections to a set of interrogatories propounded upon a different defendant in a separate case in which he is not a party, taking advantage of an error by the Clerk, who misdirected the interrogatories, in order to avoid answering incriminating questions. OPPOSITION PAGE 9 OF 17 09-cv-01024 (PR) RS

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// // V. DEFENDANT FLORES IS NOT ENTITLED TO QUALIFIED IMMUNITY STANDARD FOR DETERMINING QUALIFIED IMMUNITY The standard of reasonableness for the purposes of a determination of qualified immunity in an excessive force case is distinct from the standard of reasonableness embodied in the Fourth Amendment. [See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Robinson v. Solano County, 278 F.3d 1007.] The process for determining qualified immunity was explained by the Supreme Court in Saucier v. Katz, 533 .S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), which held that a court required to rule upon the qualified immunity issue in an excessive force claim must first ask whether the facts alleged show the officers conduct violated a constitutional right when taken in a light most favorable to the plaintiff. [Id. at 201, 121 S. Ct. 2151.] Second, the court must determine whether the right was clearly established so that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. [Id. at 201-02, 121 S. Ct. 2151.] Courts have typically applied Saucier using a three-part test in which they inquire (1) whether the claimant has alleged the deprivation of an actual constitutional right; (2) whether the right was clearly established at the time of the alleged action; and, if both of these questions are answered in the affirmative, (3) whether an objectively reasonable officer would have believed that the action taken violated that clearly established constitutional right. To support his claim that the defendant violated the plaintiffs OPPOSITION PAGE 10 OF 17 09-cv-01024 (PR) RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VI.

Fourth Amendment right to be free from the use of excessive force during the course of an arrest, Plaintiff must define what constitutes excessive force under the Fourth Amendment, and, then, how that the defendant employed force that was unreasonable under the circumstances in order to establish that a Fourth Amendment violated based on excessive force occurred. When determining whether the force used to effect a particular seizure is reasonable, there must be careful attention to the facts and circumstances of the arrest, including the severity of the crime at issue, whether the plaintiff posed an immediate threat to the safety of the defendant or others, and whether the plaintiff actively resisted arrest or attempted to evade arrest by flight. [Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).] PLAINTIFF SUFFICIENTLY ALLEGES A CONSTITUTIONAL VIOLATION The facts alleged in Plaintiffs complaint show that the defendant violated a constitutional right, in that, Plaintiff alleges that, after his hands were cuffed behind his back and while he was lying face down on the ground, the defendant pinned the plaintiff to the ground and broke a rib, and, then, after having been notified of an existing injury to his left shoulder by the plaintiff, the defendant, instead of using the plaintiffs right arm, as suggested by the plaintiff, pulled the plaintiff to his feet using his left arm with enough force to break the plaintiffs shoulder. (Amendment, at 17.) At the time the aforementioned injuries occurred, Plaintiff was neither attempting to flee or actively resisting arrest. (Id. at 16.) In fact, Defendant states that, after he deployed his Taser, the plaintiff was apprehended without further incident. (Report, OPPOSITION PAGE 11 OF 17 09-cv-01024 (PR) RS

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at page 4); moreover, Defendant admits that he was responding to a relatively minor complaint that Plaintiff had shut off the lights of a building in which Plaintiff was living. {MSJ, at page 7.) In Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), qualified immunity was denied to a police officer accused of breaking the plaintiffs arm while putting on handcuffs. After the plaintiff docilely submitted to arrest, the officer bent the plaintiffs arm in a way that caused discomfort, When the plaintiff complained, the police officer, with a grunt and a blow, broke his arm so severely that it required surgery for multiple fractures. (Id.) The court concluded that such use of force was excessive and that the officer was not entitled to qualified immunity. Id. In Jennings v. Jones, 499 F.3d 2 (2007), the court denied qualified immunity to a police officer who increased the pressure on the plaintiffs ankle several seconds after the plaintiff stopped resisting arrest and stated that the pressure already applied was hurting his previously injured ankle, stating that an objectively

reasonable officer would have believed that his conduct violated a clearly established constitutional right to be free from unreasonable force, especially when considering that the increased use of force resulted in a broken ankle. (Id.} In Aceto v. Kachajian, 240 F. Supp. 2d 121 (D. Mass. 2003), the court stated that, at the time police allegedly injured arrestee by handcuffing her behind her back, it was clearly established, for the purposes of qualified immunity, that when a non-threatening, nonflight risk, cooperating arrestee for a minor crime tells the police she suffers from an injury that would be exacerbated by handcuffing OPPOSITION PAGE 12 OF 17 09-cv-01024 (PR) RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VII.

her arms behind her back, the arrestee has a right to be handcuffed with her arms in front of her, even if the injury is not visible. In Ference v. Township of Hamilton, 538 F. Supp. 2d 785 (D.N.J. 2008), the court held that the officer was not entitled to the defense of qualified immunity on an excessive force claim based on allegations that he painfully twisted the arms of handcuffed arrestee, and that it was clearly established that such conduct was not within the bounds of appropriate police responses. In Schreiber v. Moe, 445 F. Supp. 2d 799 (W.D. Mich. 2006), the court held that the police officer did not have qualified immunity from a 1983 claim that he used excessive force, when the officer allegedly kicked arrestee in his ribs five times after he was handcuffed, and, that it was clearly established that the application of force to a secured arrestee was illegal. Based on the above, the factual scenario presented in Plaintiffs claim permits a common sense determination by this Court to conclude that, for the purposes of qualified immunity analysis, the defendant violated the plaintiffs right to be free from unreasonable seizures, as it is unreasonable and thus a violation of the Fourth Amendment for a police officer to use physical force on a citizen who has been arrested and restrained, and is securely under police control, and is not attempting escape. THE LAW WAS CLEARLY ESTABLISHED Whether the constitutional right was clearly established at the time of the plaintiffs arrest such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted, as required per Saucier, 533 U.S. at 201, 121 S. Ct. 2151, is determined by whether existing case law gave the defendant fair OPPOSITION PAGE 13 OF 17 09-cv-01024 (PR) RS

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warning that [his] conduct violated the plaintiffs constitutional rights. [Suboh v. Dist. Attorneys Office of Suffolk, 298 F.3d 81, 93 (1st Cir. 2002).] Although the aforementioned cases emphasize the obvious unconstitutionality of increasing the use of force used on a restrained arrestee to such a degree that broken bones result, they also effectively demonstrate that the law protecting the plaintiff form the defendants continued use of force was clearly established, and the Court should conclude that both materially similar cases and general Fourth Amendment principles gave the defendant fair warning that it was unconstitutional for the defendant to apply force to an arrestee who was placed in control of the defendant and was complicit in the orders given by the defendant [Amendment, at 16], and, particularly, after the plaintiff warned the defendant that he was hurting a previously injured shoulder [Complaint, at 4, page 6]. (The Court should note that, in Chelios v. Heavener, 520 F.3d 678 (7th Cir. 2008), it was held that, with regard to an excessive force claim, the defense of qualified immunity may be defeated by (1) pointing to a clearly analogous case that established a right to be free from the type of force the officer used on the arrestee; or (2) showing that the force was so plainly excessive that, as an objective matter, the police officers would have been on notice that they were violating the Fourth Amendment.) VIII. IT WAS OBJECTIVELY UNREASONABLE FOR DEFENDANT FLORES TO BELIEVE THAT HIS CONDUCT VIOLATED A CLEARLY ESTABLISHED CONSTITUTIONAL RIGHT Even though the Court can conclude that the law was clearly OPPOSITION PAGE 14 OF 17 09-cv-01024 (PR) RS

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established against the increased use of force on a suspect who is subdued and cooperating, the unlawfulness of such conduct is readily apparent without clarifying case law. [Brady v. Dill, 187 F.3d 104 (1st Cir. 1999) (citing Wilson, 526 U.S. at 613, 119 S.Ct. 1692).] While it is true that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situationespecially in circumstances that are tense, uncertain, and rapidly evolvingthe situation in which the defendant was placed did not require an immediate choice between alternative courses of conduct. After having placed plaintiff securely under his control, the defendant was neither in imminent anger nor was he facing an unusual and unexpected situation when he broke the plaintiffs shoulder and rib. Rather, Defendant Flores clearly had a choice as to whether to use the plaintiffs right or left arm to pull him to his feet, and, instead of using the plaintiffs right arm after having been informed of an existing injury to the plaintiffs left shoulder, deliberately jerked the plaintiffs left arm with such force as to result in further damage to the plaintiffs shoulder. The question, therefore, becomes whether the defendants deliberate act was such an obvious violation of the Fourth Amendments general prohibition on unreasonable force that a reasonable officer would not have required case law on point to be on notice that his conduct was unlawful, thereby constituting a genuine issue of material fact to be determined by the jury, and thus precluding summary judgment based on the defense of qualified immunity. OPPOSITION PAGE 15 OF 17 09-cv-01024 (PR) RS

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IX.

A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER THE AMOUNT OF FORCE USED WAS EXCESSIVE A. THE QUESTION OF THE AMOUNT OF FORCE USED IS DETERMINED BY THE JURY In Davidson v. Allan (1925) Va. , 130 S.E. 245, the Court ruled that the question of the amount of force used is one for the jury. Similarly, in Coles v. McNamara (1924) 131 Wash. 377, 230 Pac. 430, the Court stated that [i]t is the general rules that the jury is the arbiter of the amount of force. B. PLAINTIFFS INJURIES SHOW THAT THE AMOUNT OF FORCE USED WAS EXCESSIVE Although an officer may use such force as is reasonably necessary to effect the arrest, the degree of force necessary is an issue for the jury if there is a demonstrable physical injury as a result of the officers action. (Id.) While the use of the Taser by Defendant Flores had an appreciable impact on the plaintiff, Plaintiff does not necessarily claim that Defendant Flores use of a Taser, on its own, was excessive; rather, the use of a Taser was simply a part of a whole course of unnecessary and improper conduct. Defendant Flores not only shattered plaintiffs rib by deploying the Taser at point-blank range, but fractured plaintiffs rib by pressing his knee of plaintiffs back, and also broke plaintiffs shoulder by hyperextending it (see Exhibit A), even though the plaintiff was unarmed, subdued and in handcuffs, and never attempted to harm the defendant or anyone else in any way. Regardless of whether Defendant Flores was

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reasonably mistaken about the legality of using some force to secure the plaintiff when he first arrived on the scene, he had adequate time to assess the situation and to conclude that the plaintiff posed no safety or flight risk after the handcuffing; and, even if the plaintiff had initially resisted Defendant Flores efforts to detain him, this fact does not warrant the amount of force used, in that Defendant Flores continued to exert force against the plaintiff even after he was handcuffed. CONCLUSION For the reasons stated above, the relief requested by Defendant Flores should be DENIED. Dated: August 25th, 2010

James Alan Bush Plaintiff in pro per

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

James Alan Bush, Plaintiff, v. Officer Miguel Flores (#3881), Defendant.

Case No. 09-cv-01024 (PR) RS EXHIBIT A

Judge Richard Seeborg

Plaintiff hereby submits Exhibit A, in support of his Opposition to Defendants Officer Flores and City of San Jose Motion for Summary Judgment, which shows an avulsion to the plaintiffs shoulder, proving significant injury thereby. // // // // // EXHIBIT A PAGE 1 OF 2 09-cv-01024 (PR) RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 2 OF 2 09-cv-01024 (PR) RS