Robert Garber v. Gildardo Vizcarra et al
Filing
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ORDER by Judge Dean D. Pregerson: Defendants' Motion for Summary Judgment 78 is GRANTED. Accordingly, Plaintiff's Motion to Compel Discovery and for Sanctions 93 is VACATED as moot. (ir)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROBERT GARBER,
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Plaintiff,
v.
GILDARDO VIZCARRA, an
individual; ROBERT
JARAMILLO, an individual;
CITY OF LOS ANGELES GENERAL
SERVICES DEPARTMENT, CITY OF
LOS ANGELES,
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Defendants.
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___________________________
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Case No. CV 09-05657 DDP (RNBx)
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND VACATING
PLAINTIFF’S MOTION TO COMPEL
DISCOVERY AND FOR SANCTIONS AS
MOOT
[Motions filed on July 25, 2011,
and September 15, 2011]
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Plaintiff Robert Garber (“Plaintiff”) asserts six claims for
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relief against Gilardo Vizcarra (“Vizcarra”), individually and in
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his capacity as a police officer for the City of Los Angeles;
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Robert Jaramillo (“Jaramillo”), individually and in his capacity as
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a police officer for the City of Los Angeles; the City of Los
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Angeles General Services Department; and the City of Los Angeles
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(collectively “Defendants”) for violation of Plaintiff’s
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Constitutional rights
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of Los Angeles and the City of Los Angeles General Services
Plaintiff brings his claims against the City
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Department pursuant to Monell v. New York Department of Social
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Services, 436 U.S. 658 (1978).
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Presently before the court is Defendants’ Motion for Summary
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Judgment or in the Alternative Summary Adjudication of Claims.
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Having considered the parties’ papers and the arguments therein,
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the court GRANTS Defendants’ motion.
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I.
Background1
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On August 4, 2008, at approximately 12:00pm, Plaintiff left
his trailer coach and rode his bicycle to the Reseda Post Office.
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(Compl. ¶ 7.)
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alongside Jesse Owens Park.
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inside trailer.
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Plaintiff’s trailer was parked on White Oak Avenue
(Id.)
Plaintiff left his dog locked
(Id.)
On that same day, Officer Jaramillo and Officer Vizcarra were
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conducting a patrol of the Jesse Owens Park.
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2.)
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officers walked past Plaintiff’s trailer.
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previously observed the trailer parked at this same location, and
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they approached the trailer to investigate whether it was either
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illegally being used for human occupation or was abandoned.
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3.)
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dog howling, and they stopped to investigate.
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18.)
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the well-being of Plaintiff’s dog.
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officers decided to conduct an animal cruelty investigation and
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called animal control.
(Jaramillo Decl. ¶
At some point not long after Plaintiff’s departure, the two
The officer had
(Id. ¶
When they reached the trailer, the officers heard Plaintiff’s
(Id. ¶ 4; Compl. ¶
It was a hot August day, and the officers were concerned for
(Jaramillo Decl. ¶ 5.)
The
(Id.)
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The material facts are undisputed and are taken almost
entirely from Plaintiff’s complaint.
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At approximately 12:45pm, Plaintiff returned to his
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trailer.
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trailer, shut the door, and then spoke with Officer Jamarillo
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and Officer Vizacarra.
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Plaintiff for his identification.
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searched in a pouch for his i.d. (Id.)
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rummaged in his pouch — searching through documents and
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personal papers — Vizacarra became concerned that Plaintiff
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might have a concealed weapon.
(Compl. ¶ 9.)
Plaintiff placed a bag inside of the
(Id. ¶¶ 10-12.)
Vizacarra asked
(Id. ¶ 13.)
Plaintiff
While Plaintiff
Vizacarra ordered Jaramillo to
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handcuff Plaintiff, and when Plaintiff complained, Vizacarra
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forced Plaintiff to his knees.
(Id. ¶¶ 13-14.)
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While Plaintiff was handcuffed, Vizacarra called Animal
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Control and explained that it was necessary to investigate a
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possible incident of animal cruelty.
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approximately 1:45pm, Animal Control officer Julian (#062) of
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Animal Services arrived at the location.
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inspected the trailer, checked to make sure that Plaintiff’s
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dog had water to drink, and measured the air temperature
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inside the trailer.
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interior of the trailer was 87 degrees Fahrenheit, and Officer
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Julian concluded that the dog showed no sign of heat
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exhaustion.
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failing to register his dog (Id.), and at approximately 2:20pm
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Plaintiff was released from the handcuffs.
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(Id.)
(Id. ¶¶ 20-21.)
(Id. ¶ 24.)
At
Julian
The air temperature in the
(Jamarillo Decl. ¶ 10.)
Plaintiff was cited for
(Compl. ¶ 25.)
On September 24, 2008, Vizcarra and four other officers
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went to Jesse Owens Park and ticketed various individuals for
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illegally living inside their vehicles.
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Plaintiff was not given a ticket.
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(Id.)
(Compl. ¶ 30.)
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On November 30, 2008, Plaintiff’s trailer was shot at
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while he was inside.
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trailer and says that he saw a dark color SUV.
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(Compl. ¶ 31.)
Plaintiff exited the
(Id.)
On February 16, 2009, Plaintiff’s trailer was shot at
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again.
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the trailer, but a friend of his who was outside at the time
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saw an Office of Public Safety SUV at the same time as the
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shooting.
(Compl. ¶ 34.)
Plaintiff does not know who shot at
(Id.)
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Plaintiff has suffered from major depression since August
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2005, and he states that he has suffered intense emotional and
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mental distress as a result of, among others, the August,
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November, and February incidents described above.
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particular, Plaintiff now brings claims for violation of his
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civil rights, including unreasonable search and seizure;
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harassment; conspiracy to violate his civil rights; and
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personal injury.
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adjudication of Plaintiff’s claims.
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II.
In
Defendants move this court for summary
Legal Standard
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Summary judgment is appropriate where "the pleadings, the
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discovery and disclosure materials on file, and any affidavits
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show that there is no genuine issue as to any material fact
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and that the movant is entitled to a judgment as a matter of
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law."
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Catrett, 477 U.S. 317, 324 (1986).
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summary judgment, the evidence is viewed in the light most
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favorable to the non-moving party, and all justifiable
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inferences are to be drawn in its favor.
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Lobby, Inc., 477 U.S. 242, 255 (1986).
Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
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In deciding a motion for
Anderson v. Liberty
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A genuine issue exists if "the evidence is such that a
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reasonable jury could return a verdict for the nonmoving
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party," and material facts are those "that might affect the
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outcome of the suit under the governing law."
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genuine issue of fact exists "[w]here the record taken as a
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whole could not lead a rational trier of fact to find for the
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non-moving party."
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Radio Corp., 475 U.S. 574, 587 (1986).
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Id. at 248.
No
Matsushita Elec. Indus. Co. v. Zenith
It is not enough for a party opposing summary judgment to
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"rest on mere allegations or denials of his pleadings."
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Anderson, 477 U.S. at 259.
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go beyond the pleadings to designate specific facts showing
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that there is a genuine issue for trial.
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325.
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support of the nonmoving party's claim is insufficient to
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defeat summary judgment.
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III.
Instead, the nonmoving party must
Celotex, 477 U.S. at
The "mere existence of a scintilla of evidence" in
Anderson, 477 U.S. at 252.
Discussion
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A.
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Plaintiff claims that Vizcarra and Jaramillo arrested him
Unreasonable Search and Seizure
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without probable cause in violation of his Fourth and
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Fourteenth Amendment rights.
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cause to justify an arrest means facts and circumstances
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within the officer’s knowledge that are sufficient to warrant
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a prudent person, or one of reasonable caution, in believing,
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in the circumstances shown, that the suspect has committed, is
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committing, or is about to commit an offense.”
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DeFILLIPO, 443 U.S. 31, 37 (1979).
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detention is justified when the facts and circumstances known
(Compl. ¶¶ 47-52.)
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“[P]robable
Michigan v.
“An investigative
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or apparent to the officers, including specific and
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articulable facts, cause him to suspect (1) a crime has
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occurred and (2)the person he intends to detain is involved in
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the criminal activity.”
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381 (1990).
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In re Carlos M, 220 Cal. App. 3d 372,
Here, Plaintiff admits to leaving his dog unattended for
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at least half an hour inside of a trailer parked on a public
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street at approximately noon in August.
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not dispute that the temperature was in the high 80s at that
Plaintiff also does
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time and that the officers heard the animal howling from
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inside the trailer.
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California Penal Code section 597(b) makes it a crime to
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“subject[] any animal to needless suffering,” to “inflict[]
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unnecessary cruelty upon the animal, or to “in any manner
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abuse[] any animal or fail[] to provide the animal with proper
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food, drink, or shelter or protection from the weather
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. . . .”
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temperature at the time of the incident was almost 90 degrees
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Fahrenheit.
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spaces on hot days may become injured or die as a result of
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the elevated temperature.
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In the present matter, it is undisputed that the
It is well known that animals located in confined
Given the high temperatures and the enclosed trailer and
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the fact that the dog was howling, the officers acted
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reasonably in suspecting that a violation of section 597 had
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occurred.
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that the officers are not required to be perfect in their
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decisions; the law requires only that they act reasonably
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under the circumstances known to them at the time.
It is important for the Plaintiff to understand
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The court
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understands that the Plaintiff has great affection for his
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dog, and the court does not mean to imply that the Plaintiff
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would subject his dog to circumstances that would harm the
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dog.
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an investigation when they are concerned that an animal may be
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subjected to an unhealthy situation.
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However, police officers often must err on the side of
The same logic applies to the Plaintiff’s search.
Again,
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the officers have every right to err on the side of their own
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personal safety when they see an individual going through a
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pouch.
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produce a weapon from a bag much more quickly than an officer
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can typically draw and fire their own weapon.
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the officers are reasonably concerned about their safety, they
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have every right to detain an individual until their safety
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can be assured.
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or seize the Plaintiff.
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Officers are trained to know that an individual can
Therefore, when
Therefore it was not unreasonable to search
Because the court concludes that the officers had
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probable cause to detain Plaintiff, the court does not proceed
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to consider the officer’s claims of qualified immunity.
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B.
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Because Plaintiff has not established that an employee of
Monell liability
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the City of Los Angeles has violated his constitutional
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rights, Plaintiff cannot establish, as he alleges, that a
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custom or policy of the City or the Department of General
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Services caused a deprivation of his constitutional rights.
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Defendants are, therefore, entitled to summary judgment in
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their favor on Plaintiff’s Monell claim.
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///
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C.
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To establish a claim for conspiracy under § 1983, “a
Conspiracy & Harassment
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plaintiff must satisfy the following elements: (1) the
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existence of an express or implied agreement among the
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defendant officers to deprive him of his constitutional
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rights; and (2) an actual deprivation of those rights
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resulting from that agreement.”
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592 (9th Cir. 2010).
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Avalos v. Baca, 596 F.3d 583,
The court understands Plaintiff’s harassment claim to be,
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in essence, a claim that the municipality and its agents
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violated his substantive due process rights.
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claim of violation of substantive due process, a plaintiff may
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show that government action (1) interfered with rights
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implicit in the concept of ordered liberty; (2) would shock
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the conscious; (3) was arbitrary in the constitutional sense.
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See County of Sacramento v. Lewis, 523 U.S. 833, 846-847
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(1998).
To sustain a
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Here, in support of his conspiracy claim, Plaintiff
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offers nothing more than his own speculation that the officers
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and the Office of Public Safety fired shots at his trailer.
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In support of his harassment claim, Plaintiff similarly relies
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on the two instances when Plaintiff claims that City
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employee’s fired at his trailer.
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opposition to a motion for summary judgment must be
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sufficiently probative to permit a reasonable trier of fact to
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find in favor of the opposing party.
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249.
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judgment may be granted.
Evidence offered in
Anderson, 477 U.S. at
If the evidence is not significantly probative, summary
Id.
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In the present action, Plaintiff has presented no
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verifiable evidence tending to show the truth of his
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conspiracy accusations.
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of his conspiracy and harassment claims, aside from his
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detention in handcuffs for approximately an hour in early
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August, are his own statements.
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forward with “sufficiently ‘specific’ facts from which to draw
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reasonable inferences about other material facts that are
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necessary elements of [his] claim[s].”
Plaintiff’s only evidence in support
Plaintiff has not come
Triton Energy Corp. v.
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Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995).
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speculation cannot support Plaintiff’s claim for conspiracy.
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And without more, Plaintiff’s August 4, 2008, detention cannot
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support a claim for harassment.
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summary judgment in their favor on both claims.
Such mere
Defendants are entitled to
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D.
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Plaintiff has not pleaded with particularity injuries in
Personal Injury
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support of a personal injury claim related to the
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aforementioned causes of action.
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IV.
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Conclusion
For the reasons stated above, Defendants’ Motion for
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Summary Judgement is GRANTED.
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to Compel Discovery and for Sanctions is VACATED as moot.
Accordingly, Plaintiff’s Motion
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IT IS SO ORDERED.
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Dated: September 26, 2011
DEAN D. PREGERSON
United States District Judge
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