Tatum v. City and County of San Francisco , 441 F.3d 1090 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERLIE TATUM, and VERLIE TATUM 
as successor in interest of Glenn
Fullard, deceased,
Plaintiff-Appellant,
No. 04-15055
v.
CITY AND COUNTY OF SAN  D.C. No.
CV-02-04785-SBA
FRANCISCO; LESLIE SMITH; MAC
OPINION
CHAN; MARIO BUSALACCHI; TADAO
YAMAGUCHI; MIGUEL TORRES; JOHN
GARRITY; DOUGLASS CARR,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
November 16, 2005—San Francisco, California
Filed April 3, 2006
Before: John T. Noonan, Pamela Ann Rymer, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
3635
TATUM v. SAN FRANCISCO 3639
COUNSEL
Gregory M. Haynes, Daly City, California, for the plaintiff-
appellant.
Robert A. Bonta (argued) and Jonathan U. Lee, City and
County of San Francisco, San Francisco, California, for the
defendants-appellees.
OPINION
GOULD, Circuit Judge:
Verlie Tatum appeals from the district court’s order grant-
ing summary judgment to the defendants, and dismissing her
claims brought under 42 U.S.C. § 1983. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and we affirm.
I1
On the morning of March 2, 2001, San Francisco Police
Officer Leslie Smith was waiting for a tow truck to remove
a stolen car located in San Francisco’s Tenderloin neighbor-
hood. Across the street, Smith saw Glenn Fullard begin to
kick the side door of the Tenderloin police station. Smith
yelled at Fullard to stop kicking the door, but Fullard did not
stop. Officer Smith then approached Fullard and asked him
what he was doing. Fullard did not respond and he continued
to kick the door, so Smith pulled Fullard away from the door
and again asked him what he was doing. Fullard did not reply,
but he began to walk away from the police station after Offi-
cer Smith told Fullard to “get out of here.”
1
Because we are reviewing an order granting summary judgment, we
accept Tatum’s factual allegations as true to the extent that the record
before us contains factual disputes, and we give Tatum reasonable infer-
ences based on those facts. See Oliver v. Keller, 289 F.3d 623, 626 (9th
Cir. 2002).
3640 TATUM v. SAN FRANCISCO
As Smith was walking back across the street, he heard Ful-
lard kicking the police station’s door again. Based on Ful-
lard’s odd behavior, as well as his bloodshot eyes, heavy
perspiration, and slurred speech, Smith suspected that Fullard
might be intoxicated or under the influence of a controlled
substance. Smith pulled Fullard away from the door again and
explained to him that he could be arrested if he did not stop.
Fullard still did not respond, so Smith asked to see Fullard’s
identification. Fullard did not comply with Officer Smith’s
request, at which point Smith told Fullard that he would be
placed in handcuffs.
According to Officer Smith’s deposition testimony, he
positioned Fullard’s left arm behind his back in a bar arm
control hold and asked Fullard to place his right arm behind
his back. Instead of complying, Fullard spun to his left, par-
tially escaping Smith’s grasp. Officer Smith instructed Fullard
to stop resisting, but Fullard continued turning to his left.
Smith was able to maintain control over Fullard by position-
ing him against a nearby wall. Smith told Fullard to calm
down. Fullard continued to struggle. Smith then used the bar
arm control hold to force Fullard to the ground. Smith placed
a radio call for assistance. Officers Chan, Busalacchi, Torres,
and Yamaguchi responded at once. Against continued resis-
tance from Fullard, the officers placed him in handcuffs.
Officer Smith then sent a radio message that he no longer
needed assistance. He and Chan remained at the scene to
monitor Fullard while the other officers left. According to
Officer Smith’s testimony, Fullard lay on his stomach for
about a minute after he was handcuffed. Officers Smith and
Chan next positioned Fullard so that he lay on his side. About
two minutes later, Smith sent a radio message requesting an
ambulance after Smith noticed that Fullard’s breathing was
heavy and that his eyes were bulging. As Smith monitored
Fullard’s condition, Fullard’s breathing became shallow.
Smith sent another radio message asking that his previous
request for an ambulance be given priority. Smith and Chan
TATUM v. SAN FRANCISCO 3641
monitored Fullard while they waited for the ambulance to
arrive, but neither officer attempted to perform cardiopulmo-
nary resuscitation (CPR) on Fullard. Smith did, however,
place his right ear to Fullard’s mouth to verify that he was still
breathing. Smith also checked Fullard’s pulse and observed
his chest movements. When paramedics arrived about ten
minutes later, they could not detect Fullard’s breathing or
pulse and one paramedic observed that Fullard was on his
back. They pronounced Fullard dead at the scene. The coroner
concluded that Fullard died of cocaine toxicity.
In March 2002, Verlie Tatum, Fullard’s mother, com-
menced this civil rights action against the named defendants:
Officers Smith, Chan, Busalacchi, Torres, and Yamaguchi, as
well as their supervising officers, Garrity and Carr, and the
City and County of San Francisco. Tatum brought suit in San
Francisco Superior Court, seeking damages for her son’s
wrongful death and other torts under California law. Tatum
also sought to recover damages under 42 U.S.C. § 1983 as
Fullard’s successor in interest,2 alleging that he was wrong-
fully arrested and subjected to excessive force in violation of
his rights under the Fourth and Fourteenth Amendments. On
the basis of the federal question presented, one of the defen-
dants removed this action to federal court. The district court
granted summary judgment on all claims to all of the defen-
dants in December 2003.
2
A claim under 42 U.S.C. § 1983 survives the decedent if the claim
accrued before the decedent’s death, and if state law authorizes a survival
action. See 42 U.S.C. § 1988(a); Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). Under California law, if an
injury giving rise to liability occurs before a decedent’s death, then the
claim survives to the decedent’s estate. See Cal. Civ. P. Code § 377.30.
Where there is no personal representative for the estate, the decedent’s
“successor in interest” may prosecute the survival action if the person pur-
porting to act as successor in interest satisfies the requirements of Califor-
nia law, which Tatum did here. See Cal. Civ. P. Code §§ 377.30, 377.32.
3642 TATUM v. SAN FRANCISCO
II
Before addressing the specifics of Tatum’s appeal, we note
that to recover damages under 42 U.S.C. § 1983, Tatum must
prove by a preponderance of the evidence that the defendants
deprived Fullard of a constitutional right while acting under
color of state law. See Gritchen v. Collier, 254 F.3d 807, 812
(9th Cir. 2001).3
A
We first address Tatum’s false arrest claim. Tatum con-
tends that Fullard’s arrest violated the Fourth and Fourteenth
Amendments because Officer Smith did not have probable
cause to believe that Fullard had committed a crime. Tatum
urges that the motivation for Fullard’s arrest was his failure
to produce identification upon Smith’s request and she argues
that an arrest on this basis violates the Fourth Amendment
under our decisions in Carey v. Nevada Gaming Control Bd.,
279 F.3d 873, 880 (9th Cir. 2002) (holding that a defendant’s
arrest under two Nevada statutes requiring a person to identify
himself to a police officer violated the Fourth Amendment),
and Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th
Cir. 1987) (stating that a defendant’s arrest for refusing to
identify herself during a Terry stop violated the Fourth
Amendment).
[1] Tatum’s arguments do not persuade us. A police officer
has probable cause to arrest a suspect without a warrant if the
available facts suggest a “fair probability” that the suspect has
committed a crime. See United States v. Valencia-Amezcua,
3
We review a district court’s order granting summary judgment de
novo. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.
2001). Summary judgment was inappropriate if a reasonable jury could
have found by a preponderance of the evidence that Tatum was entitled
to a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 251-52 (1986).
TATUM v. SAN FRANCISCO 3643
278 F.3d 901, 906 (9th Cir. 2002); United States v. Fixen, 780
F.2d 1434, 1436 (9th Cir. 1986). An officer who observes
criminal conduct may arrest the offender without a warrant,
even if the pertinent offense carries only a minor penalty. See
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If
an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence,
he may, without violating the Fourth Amendment, arrest the
offender.”). If the facts known to an arresting officer are suffi-
cient to create probable cause, the arrest is lawful, regardless
of the officer’s subjective reasons for it. See Devenpeck v.
Alford, 543 U.S. 146, 153 (2004) (“[a police officer’s] subjec-
tive reason for making the arrest need not be the criminal
offense as to which the known facts provide probable cause”).
Under Devenpeck, the subjective reason that Officer Smith
arrested Fullard is irrelevant so long as the available facts sug-
gested that Fullard was committing a crime.
Thus, Tatum’s citation to Carey and Martinelli is inappro-
priate because in those cases the only possible basis for proba-
ble cause was the defendant’s refusal to produce
identification. See Carey, 279 F.3d at 880 (observing that
Carey was arrested for violating a statute requiring him to
identify himself to the police, even though there was no prob-
able cause to suspect that he had committed any other crime);
see also Martinelli, 820 F.2d at 1492 (noting that a police
officer arrested the defendant only “ ‘for delaying a lawful
police investigation by refusing to identify herself’ ”). Here,
however, crediting Tatum’s version of events and assuming
that Smith arrested Fullard because he did not produce his
identification, the undisputed facts show that there was proba-
ble cause to arrest Fullard.
[2] Fullard’s behavior and appearance created a “fair proba-
bility” that he had committed a crime. Fullard was kicking the
door to a police station for no apparent reason; he disobeyed
commands to stop; he was verbally unresponsive, except by
incomprehensible mumbling; he was perspiring heavily; and
3644 TATUM v. SAN FRANCISCO
his eyes were bloodshot. There was a fair probability that Ful-
lard was under the influence of a controlled substance, a
crime under California law. Moreover, Fullard’s behavior
warranted Smith’s belief that Fullard had violated other provi-
sions of the California penal code, including those prohibiting
disorderly conduct, vandalism, and disturbing the peace.
Viewed objectively, the facts available to Officer Smith estab-
lished probable cause to arrest Fullard, so Smith’s subjective
motivation for arresting Fullard is irrelevant and the defen-
dants were entitled to summary judgment regarding Tatum’s
false arrest claim. See Devenpeck, 543 U.S. at 153.
B
[3] We turn to Tatum’s excessive force claims. Tatum con-
tends that Officer Smith’s use of a control hold to secure Ful-
lard prior to his arrest constituted excessive force. We
disagree. The Fourth Amendment does not prohibit a police
officer’s use of reasonable force during an arrest. See Graham
v. Connor, 490 U.S. 386, 396 (1989) (“the right to make an
arrest or investigatory stop necessarily carries with it the right
to use some degree of physical coercion or threat thereof to
effect it” (citing Terry v. Ohio, 392 U.S. 1, 22-27 (1968))).
When we analyze excessive force claims, our initial inquiry
is “whether the officers’ actions [were] ‘objectively reason-
able’ in light of the facts and circumstances confronting
them.” See id. at 397. We consider the facts underlying an
excessive force claim from the perspective of a reasonable
officer on the scene, without regard to the arresting officer’s
subjective motivation for using force. See id. at 396-97.
Whether a particular use of force was “objectively reason-
able” depends on several factors, including the severity of the
crime that prompted the use of force, the threat posed by a
suspect to the police or to others, and whether the suspect was
resisting arrest. See id. at 396.
Tatum cites DeGraff v. District of Columbia, 120 F.3d 298
(D.C. Cir. 1997), and Rowland v. Perry, 41 F.3d 167 (4th Cir.
TATUM v. SAN FRANCISCO 3645
1994), to support her contention that using a control hold was
unreasonable under the circumstances of Fullard’s arrest. Nei-
ther case is applicable here. In DeGraff, the Court of Appeals
for the District of Columbia reversed an order granting sum-
mary judgment against a motorist’s excessive force claim. See
DeGraff, 120 F.3d at 303. Two police officers stopped
DeGraff’s car because they suspected that she was driving
under the influence of alcohol. Id. at 300. After confirming
that she had been drinking, the officers removed DeGraff
from her car, arrested her, and secured her in handcuffs. Id.
Throughout, DeGraff repeatedly asked whether she would be
given a sobriety test, and she began to cry when the officers
did not answer her. Id. In response, the officers mocked
DeGraff, lifted her off the ground, carried her down the street,
and shackled her to a mailbox. Id. The Court of Appeals
reversed because the summary judgment record contained no
evidence that DeGraff resisted arrest before the officers began
carrying her down the street. Id. at 302 (“Although she may
have been loquacious and may have cried, there was no evi-
dence that she had resisted arrest or tried to free herself from
the policemen’s grip prior to that time.”). Because the record
did not indicate why the officers felt it necessary to carry
DeGraff away from her car, the court could not say that the
officers were entitled to judgment as a matter of law. Id.
(“Although we can readily imagine circumstances that would
have justified their actions in this case, the record contains
virtually no clues as to why they felt it necessary to carry Ms.
DeGraff or to tether her to a mailbox.”).
The facts of this case are different. DeGraff was already
under arrest and secured in handcuffs when the officers car-
ried her down the street against her will, so in DeGraff there
was no apparent reason for the officers’ use of force. Here,
however, the reason that Smith used force against Fullard is
clear and not genuinely in dispute. Fullard was agitated, and
Officer Smith applied the control hold to facilitate placing
Fullard in handcuffs. Also, in DeGraff, the claimant struggled
against the officers only after she was under arrest, while they
3646 TATUM v. SAN FRANCISCO
carried her down the street. Fullard, on the other hand,
resisted Smith’s lawful use of force during the arrest itself, by
trying to spin out of Smith’s grasp. Thus, in DeGraff, the
record did not show adequate cause for the use of post-arrest
force, while here Fullard’s struggle to avoid arrest justified
the use of a measured control hold.
Rowland is similarly inapposite. In Rowland, the Fourth
Circuit reversed a district court’s order granting summary
judgment to a police officer defendant. Rowland alleged that
he was assaulted by a police officer without provocation, after
attempting to return a five dollar bill to the person who
dropped it. See Rowland, 41 F.3d at 171. The officer’s version
of events differed dramatically, but because the Fourth Circuit
was reviewing an order granting summary judgment to a
defendant, it credited Rowland’s factual allegations. Id. at
172, 174. The court observed that “[the plaintiff] suffered a
serious leg injury over a lost five dollar bill,” and concluded
that a reasonable jury could find the officer’s use of force
unreasonable if the jury accepted Rowland’s version of
events. Id. at 174.
The summary judgment record here, however, could not
support a finding that Fullard was the victim of an unpro-
voked police attack or, as Tatum urges, that “Fullard lost his
life because he failed to produce his identification.” Fullard
was kicking a police station door for no reason; Fullard
refused to obey Smith’s commands to stop; there was proba-
ble cause to arrest; Fullard resisted arrest by spinning away
from Smith; and Fullard died as a result of cocaine toxicity.
Unlike the record in Rowland, which could support the con-
clusion that the pertinent use of force was unjustified and that
it caused Rowland’s injury, the record here does not permit
the inference that Smith’s use of force was unwarranted, or
that Smith’s use of a control hold caused Fullard’s death.
Given the significant differences between the summary judg-
ment record in Rowland and the record before us, Rowland
TATUM v. SAN FRANCISCO 3647
does not help us to determine whether Smith’s use of a con-
trol hold was objectively reasonable under Graham.
[4] We think it is clear that Officer Smith’s use of a control
hold was objectively reasonable under the circumstances of
Fullard’s arrest. While the criminal conduct underlying Ful-
lard’s arrest was not severe, he posed a threat to himself, to
the police, and possibly to anyone who passed by him. Fullard
spun away from Smith and continued to struggle after Smith
told Fullard to “calm down.” Even accepting Tatum’s conten-
tion that Fullard sought to escape Smith’s grasp to shift into
a less painful position, Fullard still resisted arrest, which justi-
fied Smith’s continued application of the control hold. Faced
with a potentially violent suspect, behaving erratically and
resisting arrest, it was objectively reasonable for Smith to use
a control hold to secure Fullard’s arm long enough to place
him in handcuffs.
[5] Our cases support this conclusion. We have held more
aggressive police conduct than Smith’s objectively reason-
able, even where the conduct resulted in serious physical
injury. See Johnson v. County of Los Angeles, 340 F.3d 787,
793 (9th Cir. 2003) (concluding that hard pulling and twisting
to remove a suspect from a crashed getaway car was objec-
tively reasonable even though Johnson asserted that the offi-
cer’s conduct rendered him paraplegic); Jackson v. City of
Bremerton, 268 F.3d 646, 652-53 (9th Cir. 2001) (applying
Graham and concluding that spraying Jackson’s hair with a
chemical irritant prior to her arrest, pushing her to the ground
to handcuff her, and roughly pulling her to her feet during her
arrest was not excessive force); see also Forrester v. City of
San Diego, 25 F.3d 804, 807 (9th Cir. 1994) (concluding that
ample evidence supported a jury’s verdict that the use of
“pain compliance techniques” to remove anti-abortion demon-
strators who were blocking access to an abortion clinic was
objectively reasonable); Eberle v. City of Anaheim, 901 F.2d
814, 819-20 (9th Cir. 1990) (upholding a jury’s verdict that a
police officer’s use of a finger hold to control a belligerent
3648 TATUM v. SAN FRANCISCO
football fan was objectively reasonable). There is no evidence
that Officer Smith threatened to use lethal force, or that he
punched or kicked Fullard. There is no evidence that Smith
applied more force than necessary to restrain Fullard while
attempting to secure him in handcuffs. In light of the circum-
stances leading up to Fullard’s arrest, we hold that Officer
Smith’s use of a control hold was objectively reasonable.
Tatum also contends that three aspects of Fullard’s deten-
tion after his arrest constituted excessive force. These are: that
Officers Smith and Chan positioned Fullard on his stomach
for approximately ninety seconds (after which they positioned
Fullard on his side); that the officers did not notice that Ful-
lard rolled from his side onto his back or that he stopped
breathing; and that the officers did not perform CPR on Ful-
lard. Relying on Estate of Phillips v. City of Milwaukee, 123
F.3d 586 (7th Cir. 1997), the district court concluded that
Officers Smith and Chan adequately monitored Fullard, and
that laying Fullard on his stomach was objectively reasonable
under the circumstances of his arrest. We agree.
The facts underlying Phillips are similar to those presented
here. Phillips suffered from several serious medical conditions
that were not “observable to the untrained eye,” including an
enlarged heart, an enlarged thyroid, Graves’ disease, and
schizophrenia. See id. at 590, 594. Having been evicted from
the Ambassador Hotel the previous day for destroying hotel
property, Phillips returned to his former room undetected by
using a key that he had retained. See id. at 587-88. He was
discovered by the housekeeping staff, who summoned secur-
ity. Hotel security then called the police, who found Phillips
“visibly shaking and sweating” when they entered the room.
Id. at 588. The officers asked Phillips for his name, but he did
not respond. Id. When the officers grabbed Phillips’s wrists to
secure him, he resisted. Id. Although Phillips struggled, the
officers secured Phillips in handcuffs and positioned him face
down on the floor. Id. at 589. One of the officers determined
that Phillips needed “mental observation,” and requested an
TATUM v. SAN FRANCISCO 3649
ambulance. Id. Before paramedics arrived, Phillips was in a
“face down, handcuffed position” for at least two or three
minutes. Id. Throughout this time, the officers monitored
Phillips and called his name every twenty to thirty seconds.
Id. When the ambulance attendants arrived, however, it was
discovered that Phillips was not breathing. Id. Although the
paramedics revived Phillips and transported him to a hospital,
he died the next day. Id. at 590.
Affirming the district court’s order granting summary judg-
ment to the defendants, the court in Phillips held that the offi-
cers’ conduct was “an objectively reasonable response to the
escalating situation they faced.” Id. at 593. Noting that the
officers placed Phillips in a prone position to protect them-
selves and the hotel staff from Phillips’s violent behavior, the
court said that: “Restraining a person in a prone position is
not, in and of itself, excessive force when the person
restrained is resisting arrest.” Id.
[6] This rationale applies with persuasive force here, and
we conclude that it was objectively reasonable for the officers
to position Fullard on his stomach for approximately ninety
seconds. Officer Smith testified that Fullard kicked and strug-
gled throughout the officers’ efforts to secure him in hand-
cuffs. The officers needed to incapacitate Fullard, both to
protect themselves and to protect him. As the district court
noted, the summary judgment record did not contain evidence
that any officer applied crushing pressure to Fullard’s back or
neck as he lay prone. The evidence is unequivocal that Fullard
lay on his stomach at most for just over a minute, after which
Officers Smith and Chan positioned him on his side. Tatum
has not cited any authority to support her argument that sim-
ply laying a suspect on his stomach can constitute excessive
force, and we have found none. We hold that it was objec-
tively reasonable to position Fullard on his stomach for
approximately ninety seconds under the circumstances of his
arrest.
3650 TATUM v. SAN FRANCISCO
[7] Similarly, we conclude that the officers exercised objec-
tively reasonable care in monitoring Fullard, even if the offi-
cers did not notice that Fullard had rolled onto his back, or
that he stopped breathing. Officer Smith testified that he
examined Fullard just after securing him in handcuffs. Based
on Fullard’s apparent distress, Smith called for an ambulance.
Smith testified that he placed his ear close to Fullard’s mouth
to verify that he was still breathing. Smith also testified that
he checked Fullard’s pulse. As the court said in Phillips
regarding an analogous failure to monitor claim: “That no one
noticed that Mr. Phillips was not getting enough oxygen can-
not, standing alone, transform these officers’ actions into a
transgression of constitutional magnitude.” Id. at 595. Absent
evidence in the summary judgment record that the officers
ignored Fullard’s deteriorating medical condition, we agree.
We hold that it was objectively reasonable for the officers to
monitor Fullard’s medical condition in the manner they did
until an ambulance arrived.
[8] The district court concluded that the officers’ decision
not to perform CPR might constitute excessive force. We dis-
agree. Just as the Fourth Amendment does not require a police
officer to use the least intrusive method of arrest, see For-
rester, 25 F.3d at 807, neither does it require an officer to pro-
vide what hindsight reveals to be the most effective medical
care for an arrested suspect. Prior to its holding in Graham,
that “all claims that law enforcement officers have used
excessive force . . . should be analyzed under the Fourth
Amendment,” 490 U.S. at 395, the Supreme Court said that
the Due Process Clause requires the provision of medical care
to “persons . . . who have been injured while being appre-
hended by the police.” City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244 (1983) (holding that city had a constitu-
tional obligation to provide medical care to a person injured
during an arrest, and that the city satisfied its duty to provide
medical care by taking an injured suspect to a hospital). Like-
wise, before Graham, we said that “[d]ue process requires
that police officers seek the necessary medical attention for a
TATUM v. SAN FRANCISCO 3651
detainee when he or she has been injured while being appre-
hended by either promptly summoning the necessary medical
help or by taking the injured detainee to a hospital.” Maddox
v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986).
Although it was decided before Graham, we think that Mad-
dox sets the standard for objectively reasonable post-arrest
care. Accordingly, we hold that a police officer who promptly
summons the necessary medical assistance has acted reason-
ably for purposes of the Fourth Amendment, even if the offi-
cer did not administer CPR. See Maddox, 792 F.2d at 1415
(“We have found no authority suggesting that the due process
clause establishes an affirmative duty on the part of police
officers to render CPR in any and all circumstances.”).
[9] Officers Smith and Chan promptly summoned the nec-
essary medical care by requesting an ambulance for Fullard.
At his deposition, Officer Smith testified that he examined
Fullard after he was secured in handcuffs and that Fullard’s
eyes were bulging and his breathing heavy. Smith suspected
that Fullard was under the influence of a controlled substance
and he called for an ambulance. Smith testified that he contin-
ued to monitor Fullard’s condition, particularly his breathing,
while waiting for the ambulance to arrive. When Fullard’s
breathing became shallow, Smith sent a second radio mes-
sage, asking that his request for an ambulance be given prior-
ity. Shortly thereafter, Smith received a message confirming
his request, and informing him that an ambulance was rushing
to his location. Smith also testified that Fullard continued to
breathe, albeit laboriously, until the ambulance arrived. Tatum
points to testimony from one of the paramedics who treated
Fullard that he was not breathing when the paramedic arrived.
While this fact is disputed and we must accept Tatum’s ver-
sion of events, whether Fullard was breathing when the
paramedics arrived does not alter our conclusion that Officers
Smith and Chan behaved reasonably for purposes of the
Fourth Amendment. See Phillips, 123 F.3d at 595 (explaining
that “who discovered that Mr. Phillips was not breathing is a
fact of no consequence,” in light of uncontroverted evidence
3652 TATUM v. SAN FRANCISCO
that the officers continually monitored him). Assuming that
Fullard had stopped breathing, and thus that Smith and Chan
could have performed CPR on Fullard without risking further
injury to him, the critical inquiry is not whether the officers
did all that they could have done, but whether they did all that
the Fourth Amendment requires. Here, the officers promptly
requested medical assistance, and the Constitution required
them to do no more. See Maddox, 792 F.2d at 1415. We hold
that it was objectively reasonable for Officers Smith and Chan
to request an ambulance for Fullard, rather than performing
CPR themselves. See id.
[10] The officers’ conduct underlying Tatum’s claims did
not deprive Fullard of a constitutional right. Consequently,
Tatum was not entitled to recover damages from the arresting
officers under 42 U.S.C. § 1983 and the district court cor-
rectly granted summary judgment to the defendants.4 See
Valdez v. Rosenbaum, 302 F.3d 1039, 1042, 1049 (9th Cir.
2002) (affirming summary judgment order where plaintiff
suffered no deprivation of a constitutional right).
C
[11] We next address Tatum’s claims against Officers Gar-
rity and Carr, alleging liability for the conduct of their subor-
dinate officers, and Tatum’s claim against the City and
County of San Francisco, alleging municipal liability under
Monell v. Department of Soc. Servs., 436 U.S. 658 (1978).
Absent a constitutional deprivation, neither Officers Garrity
and Carr, nor the City and County of San Francisco may be
held liable under § 1983. See Jackson, 268 F.3d at 653-54
(“Neither a municipality nor a supervisor, however, can be
held liable under § 1983 where no injury or constitutional vio-
4
Because the police conduct underlying this case did not violate Ful-
lard’s rights, we do not address whether the officers would be entitled to
qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001); John-
son, 340 F.3d at 793-94.
TATUM v. SAN FRANCISCO 3653
lation has occurred.”). The district court correctly granted
summary judgment in favor of Officers Garrity and Carr, and
the City and County of San Francisco.
III
[12] Finally, we turn to Tatum’s claim that the district court
erred by denying her request for a continuance pursuant to
Federal Rule of Civil Procedure 56(f). We review a district
court’s order denying additional discovery for abuse of discre-
tion. See United States v. Kitsap Physicians Serv., 314 F.3d
995, 1000 (9th Cir. 2002). A party requesting a continuance
pursuant to Rule 56(f) must identify by affidavit the specific
facts that further discovery would reveal, and explain why
those facts would preclude summary judgment. See Fed. R.
Civ. P. 56(f); California v. Campbell, 138 F.3d 772, 779 (9th
Cir. 1998); see also 10B Charles Alan Wright, Arthur R. Mil-
ler & Mary Kay Kane, Federal Practice and Procedure § 2740
(3d ed. 1998) (“when the movant has met the initial burden
required for the granting of a summary judgment, the oppos-
ing party either must establish a genuine issue for trial under
Rule 56(e) or explain why he cannot yet do so under Rule
56(f)”).
[13] Because Tatum did not satisfy the requirements of
Rule 56(f), the district court did not abuse its discretion by
denying her request for a continuance. See Kitsap, 314 F.3d
at 1000 (“Failure to comply with [the requirements of Rule
56(f)] is a proper ground for denying relief.”). Tatum’s
request for a continuance did not identify the specific facts
that further discovery would have revealed or explain why
those facts would have precluded summary judgment. In a
declaration supporting Tatum’s opposition, her counsel stated
that he had not yet received transcripts of several witness’
depositions, including those of Officer Torres, Officer Bus-
alacchi, and a paramedic who treated Fullard. The declaration
does not, however, refer to any specific fact in these deposi-
tions or explain why the information contained in them was
3654 TATUM v. SAN FRANCISCO
“essential to justify [Tatum’s] opposition.” Fed. R. Civ. P.
56(f). The declaration does not indicate that deferring the res-
olution of the defendants’ motion for summary judgment until
the depositions had been transcribed and filed would have
allowed Tatum to produce evidence creating a genuine issue
of material fact as to whether any of the officers involved in
Fullard’s arrest used excessive force. The declaration does not
explain how a continuance would have allowed Tatum to pro-
duce evidence creating a factual issue regarding probable
cause. Absent a showing by Tatum that additional discovery
would have revealed specific facts precluding summary judg-
ment, the district court did not abuse its discretion by denying
Tatum’s request for a continuance under Rule 56(f).
IV
Because the police conduct in this case did not deprive Ful-
lard of a constitutional right, Tatum may not hold the arrest-
ing officers, their supervisors, or the City and County of San
Francisco liable for the events leading up to Fullard’s death
under 42 U.S.C. § 1983. Moreover, the district court did not
abuse its discretion by denying Tatum’s request for additional
discovery because Tatum did not comply with the require-
ments of Rule 56(f).
The parties shall bear their own costs on appeal.
AFFIRMED.