                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              APR 11 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICHARD GILBERT GARCIA,                           No.    15-55821

              Plaintiff-Appellant,                D.C. No.
                                                  5:13-cv-00112-TJH-DTB
 v.

UNITED STATES OF AMERICA,                         MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Terry J. Hatter, District Judge, Presiding

                        Argued and Submitted March 6, 2017
                               Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,** District Judge.

      Richard Garcia appeals the district court’s grant of summary judgment to the

United States on his claims for battery, assault, intentional infliction of emotional

distress, and negligence brought under the Federal Tort Claims Act and arising out


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
of Garcia’s detention by Customs and Border Patrol (“CBP”) officers at the Tecate

Port of Entry in 2010. Because Garcia, a paraplegic, has presented evidence

sufficient to create a genuine issue of material fact as to whether CBP officers

negligently denied him use of a bathroom while he was detained for approximately

ten hours and left him to sit in his own urine and excrement during much of that

period of time, we REVERSE the district court’s decision to grant summary

judgment on Garcia’s negligence claim and REMAND to the district court.            We

AFFIRM the district court’s grant of summary judgment to the United States on

Garcia’s other claims.

      1. On a motion for summary judgment, “[t]he evidence of the non-movant is

to be believed, and all justifiable inferences are to be drawn in his favor.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Garcia has presented

evidence that he repeatedly asked to use the bathroom and to speak to a supervisor

about his need for assistance in using the bathroom. In Garcia’s deposition, he

stated that he explicitly asked to use the restroom at least three times: he asked a

CBP officer if he could use the bathroom at 5 or 6 p.m., he again asked a CBP

officer around 9 p.m., and he told an officer of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”) that he needed to use the bathroom before that

officer began interrogating him at approximately 10:45 p.m.


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      Garcia further stated that, when it became clear that he could not use the

bathroom within his holding cell because it was not wheelchair accessible, he and

the CBP officer agreed that Garcia would need to speak to a supervisor. Garcia

also said in his deposition that he then asked the officer to let him speak to a

supervisor at least five or six times but that no supervisor ever appeared to speak

with him about his needs. Garcia further stated that, as a result of being denied use

of an accessible bathroom and assistance in cleaning and changing himself, his

skin became raw from extended contact with his urine and feces. He also said that

when the dried excrement was removed from his body at the hospital, it tore his

skin and caused him to bleed, and that he spent a week in the hospital and took

three months to mostly recover.

      2. Based on Garcia’s evidence, summary judgment in favor of the United

States is not appropriate on his negligence claim because a reasonable jury could

conclude that CBP and ATF officers acted unreasonably by denying Garcia’s

requests to use an accessible bathroom, failing to take any steps to accommodate

his need for assistance in cleaning and changing himself, and beginning a lengthy

interrogation after finding out that Garcia was sitting in a soiled adult diaper.

Garcia has not, however, presented evidence to survive summary judgment on his

theory that CBP and ATF officers acted unreasonably in cuffing his hands and legs


                                           3
to a gurney while he was being transported in an ambulance to the hospital. Garcia

has provided no evidence that he made officers aware that cuffing him to the

gurney would cause him injury, prevent him from lying comfortably, or impair his

ability to protect himself from bouncing around during the ambulance ride.

Because the officers were not aware of this risk, we cannot conclude that the

officers acted unreasonably in employing handcuffs during transportation.

      3. We do not consider Garcia’s assault claim because he waived it before

this court by merely “deferr[ing]” to the arguments counsel had raised below. See

United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in

passing and not supported by citations to the record or to case authority are

generally deemed waived.”). The district court properly granted summary

judgment to the United States on Garcia’s remaining claims: On his battery claim,

Garcia has not provided any authority for treating exposure to his own urine and

feces as the type of “offensive contact” required to make out a prima facie battery

claim. See Brown v. Ransweiler, 171 Cal. App. 4th 516, 526-27 (2009). His other

theory of battery, which relates to his transfer to the ambulance and being cuffed to

the gurney fails for lack of evidence sufficient to survive summary judgment. On

his claim for intentional infliction of emotional distress, Garcia failed to provide

evidence that the CBP and ATF officers inflicted injury upon him intentionally as


                                           4
opposed to negligently. See Tekle v. United States, 511 F.3d 839, 855 (9th Cir.

2006).

      For the above stated reasons, we REVERSE and REMAND the district

court’s decision granting the United States’s motion for summary judgment on

Garcia’s negligence claim and AFFIRM the district court’s decision granting

summary judgment on the other claims.

      Each party shall bear its own costs on appeal.




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