-SKO Lewis v. City Of Fresno, et al., No. 1:2008cv01062 - Document 103 (E.D. Cal. 2011)
Court Description: MEMORANDUM, OPINION and ORDER GRANTING, in part, and DENYING, in part, defendants' Motion for Summary Judgment against Ron Manning, document 76 . The motion is GRANTED on the issue of existence of probable cause to arrest, DENIED on the issue of existence of reasonable suspicion to effect a traffic stop, DENIED as to plaintiff's 14th Amendment claim, subject to a Federal Rules of Evidence Code 104 foundation, DENIED as to the FEHA claims, and GRANTED as to the Monell claim and DIRECTS defendants to lodge an order in conformity with this memorandum decision within five days of electronic service of this decision; order signed by Judge Oliver W. Wanger on 7/13/2011. (Rooney, M)
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-SKO Lewis v. City Of Fresno, et al. Doc. 103 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:08-cv-01062-OWW-GSA JAMES LEWIS, 9 MEMORANDUM DECISION RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST RON MANNING (Doc. 76) Plaintiff, 10 11 12 v. CITY OF FRESNO, et al., Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION. Ron Manning (“Plaintiff”) proceeds with this action pursuant to 42 U.S.C. 1983 and California Government Code §12900. Defendants filed a motion for summary judgment on May 10, 2011. (Doc. 76). (Doc. 83). Plaintiff filed opposition on June 6, 2011. Defendants filed a reply on June 13, 2011. (Doc. 94) II. FACTUAL BACKGROUND. Plaintiff is an African American police officer employed by the Fresno Police Department (“Department”). On the evening of October 27, 2007, Plaintiff was arrested for driving under the influence of alcohol. Officer Brian Phelps employed a twist lock to force Plaintiff to sit on the curb after Plaintiff verbally objected to Phelp’s command to sit on the curb. Plaintiff requested that his wife be permitted to drive home the 28 1 Dockets.Justia.com 1 vehicle Plaintiff was driving, but both Phelps and the supervising 2 sergeant on the scene, Eric Eide, refused his request and caused 3 the 4 concerning Plaintiff’s arrest which stated that his initial stop of 5 Plaintiff’s vehicle was for having no front license plate. vehicle to be towed. Phelps prepared a police report 6 Plaintiff appeared for a hearing before the Department of 7 Motor Vehicles in connection with the suspension of Plaintiff’s 8 driver’s license. At the hearing, Phelps testified that he stopped 9 Plaintiff’s vehicle for making an unsafe lane change, and that he 10 suspected Plaintiff was attempting to avoid a DUI checkpoint. 11 Phelps also testified that he had no information about the front 12 license plate violation until after he stopped Plaintiff’s vehicle. 13 The hearing officer concluded that there was no probable cause for 14 officer Phelp’s initial stop of Plaintiff’s vehicle. 15 As a result of his DUI arrest, Plaintiff was subjected to an 16 Internal Affairs investigation (“IA investigation”) pursuant to 17 Department 18 (“Casto”) interviewed Plaintiff and Phelps in connection with the 19 IA investigation. 20 uncooperative and unprofessional at the jail. Casto contacted jail 21 personnel and was unable to confirm Phelps statement. 22 advised Casto of the DMV hearing officer’s finding of lack of 23 probable cause, and Casto advised that such a finding had no import 24 on the IA investigation. 25 suspended for 120 hours issued. policy. Investigating sergeant Mindy Medina-Casto Phelps told Casto that Plaintiff had been Plaintiff A recommendation that Plaintiff be 26 At a disciplinary hearing before Deputy Chief Roger Enmark on 27 May 7, 2008, Plaintiff advised Enmark that Phelps had contradicted 28 his report during the DMV hearing. 2 1 Plaintiff was prosecuted criminally for driving under the 2 influence. The Fresno County Superior Court granted Plaintiff’s 3 motion pursuant to California Penal Code section 1538.5,1 and on 4 June 8, 2009, the District Attorney dismissed the charges against 5 Manning. Manning advised the Department of the dismissal. 6 On May 22, 2008, Department Chief Jerry Dyer signed an Order 7 of Suspension imposing 120 hours of suspension without pay on 8 Plaintiff based on Enmark’s recommendation. 9 III. LEGAL STANDARD. 10 Summary judgment/adjudication is appropriate when "the 11 pleadings, the discovery and disclosure materials on file, and any 12 affidavits show that there is no genuine issue as to any material 13 fact and that the movant is entitled to judgment as a matter of 14 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 15 responsibility of informing the district court of the basis for its 16 motion, 17 depositions, answers to interrogatories, and admissions on file, 18 together with the affidavits, if any, which it believes demonstrate 19 the absence of a genuine issue of material fact." Celotex Corp. v. 20 Catrett, 21 omitted). and 477 identifying U.S. 317, those 323 portions (1986) of (internal the pleadings, quotation marks 22 Where the movant will have the burden of proof on an issue at 23 trial, it must "affirmatively demonstrate that no reasonable trier 24 25 26 1 Section 1538.5 provides, in pertinent part: “A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable.” 27 28 3 1 of fact could find other than for the moving party." Soremekun v. 2 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 3 respect to an issue as to which the non-moving party will have the 4 burden of proof, the movant "can prevail merely by pointing out 5 that there is an absence of evidence to support the nonmoving 6 party's case." Soremekun, 509 F.3d at 984. With 7 When a motion for summary judgment is properly made and 8 supported, the non-movant cannot defeat the motion by resting upon 9 the allegations or denials of its own pleading, rather the 10 "non-moving party must set forth, by affidavit or as otherwise 11 provided in Rule 56, 'specific facts showing that there is a 12 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A 14 non-movant's bald assertions or a mere scintilla of evidence in his 15 favor are both insufficient to withstand summary judgment." FTC v. 16 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must 17 show a genuine issue of material fact by presenting affirmative 18 evidence from which a jury could find in his favor." Id. (emphasis 19 in original). "[S]ummary judgment will not lie if [a] dispute about 20 a material fact is 'genuine,' that is, if the evidence is such that 21 a reasonable jury could return a verdict for the nonmoving party." 22 Anderson, 477 U.S. at 248. In determining whether a genuine dispute 23 exists, a district court does not make credibility determinations; 24 rather, the "evidence of the non-movant is to be believed, and all 25 justifiable inferences are to be drawn in his favor." Id. at 255. 26 /// 27 /// 28 /// 4 IV. DISCUSSION. 1 2 A. FEHA Claims 3 California’s Fair Employment and Housing Act (“FEHA”) makes it 4 an “unlawful employment practice” for any employer “because of the 5 race…to discriminate against the person in compensation or in 6 terms, conditions, or privileges of employment.” Cal. Gov. Code, § 7 12940(a). 8 discrimination 9 classification protected by the statute; (2) discriminatory animus 10 on the part of the employer toward members of that classification; 11 (3) an action by the employer adverse to the employee's interests; 12 (4) a causal link between the discriminatory animus and the adverse 13 action; (5) damage to the employee, and (6) a causal link between 14 the adverse action and the damage. 15 Inc., 165 Cal. App. 4th 686, 713 (Cal. Ct. App. 2008). 16 The FEHA's elements are (1) discrimination of a the FEHA claim employee's for employment membership in a Mamou v. Trendwest Resorts, provision addresses only explicit 17 changes in the “terms, conditions, or privileges of employment.” 18 Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (Cal. 2010) (citing 19 (§ 12940(a)). 20 employer, the institution or corporation itself must have taken 21 some official action with respect to the employee, such as hiring, 22 firing, failing to promote, adverse job assignment, significant 23 change 24 action. in In the case of an institutional or corporate compensation or benefits, or official disciplinary Id. 25 The Complaint alleges, inter alia, that the disciplinary 26 action taken against him in connection with his DUI arrest was 27 motivated by racial discrimination. 28 Plaintiff provides evidence that he was disciplined more harshly 5 In support of his contention, 1 than all but two other officers investigated for DUI’s between 2005 2 and 2010. 3 30). 4 (Doc. 83-3, Plaintiff’s Statement of Undisputed Fact Defendants offer only the following argument in support of 5 their motion for summary judgment on Plaintiff’s FEHA claim: 6 The City may defeat a FEHA claim by producing evidence of a nondiscriminatory reason for its actions. Flait v. North American Watch Corp., 3 Cal.App.4th 467, 479 (1992). Here, it is undisputed that Manning was never demoted, suspended, fined or terminated in the last five years, except for the suspension at issue. (Dec. of Hains, ¶3). Moreover, as established, the City had a legitimate reason to issue a suspension based on Manning’s conduct on October 27, 2007. 7 8 9 10 11 (Doc. 76, MSJ at 16). Defendants argument is not dispositive, as 12 Plaintiff’s claim is that he received overly-harsh discipline 13 because of his race. The fact that it was appropriate, if it was, 14 to take some measure of disciplinary action against Plaintiff does 15 not preclude a finding that Plaintiff was discriminated against; 16 the operative inquiry is whether Plaintiff was subjected to excess 17 discipline motivated by racial animus. Defendants’ conclusory 18 argument is insufficient to carry their burden imposed by Rule 56. 19 Questions of fact exist concerning whether Plaintiff was 20 disciplined more harshly than non-African American’s cited for 21 similar conduct, and if so, whether such discipline was motivated 22 by racial discrimination. Defendants motion for summary judgment 23 on Plaintiff’s FEHA claim is DENIED. 24 B. Section 1983 Claim 25 Section 1983 requires a claimant to prove “(1) that a person 26 acting under color of state law (2) committed an act that deprived 27 the claimant of some right, privilege or immunity protected by the 28 6 1 Constitution or laws of the United States." E.g., White v. Roper, 2 901 F.2d 1501, 1503 (9th Cir. 1990) (footnote omitted). The 3 Complaint the 4 Fourteenth and Fourth Amendments. alleges violation of 5 The rights under 1. Fourth Amendment Claim 6 Plaintiff’s Fourth Amendment the seizures. United The States Constitution 7 prohibits 8 particular seizure requires balancing of the nature and quality of 9 the seizure against the governmental interest at stake. See, e.g., 10 unreasonable to reasonableness of a Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011). 11 a. Reasonableness of Phelp’s Traffic Stop 12 Traffic stops are investigatory stops that must be based on 13 reasonable suspicion that a traffic law violation occurred. E.g., 14 id. at 1077; United States v. Willis, 431 F.3d 709, 714 (9th Cir. 15 2005). 16 facts which, together with objective and reasonable inferences, 17 form the basis for suspecting that the particular person detained 18 is engaged in criminal activity.'" 19 v. Hannigan, 92 F.3d 1486, 1496 (9th Cir. 1996). 20 rule prohibits reasonable suspicion from being based on broad 21 profiles which cast suspicion on entire categories of people 22 without any individualized suspicion of the particular person to be 23 stopped." United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 24 (9th Cir. 1994). Reasonable suspicion consists of “specific, articulable Easyriders Freedom F.I.G.H.T. A "gloss on this 25 Defendants contend that Phelp’s initial stop of Plaintiff was 26 justified by reasonable suspicion to believe that Plaintiff had 27 made an unsafe lane change. 28 fact number two provides: Defendants’ statement of undisputed 7 1 2 Officer Phelps believed that Manning made an abrupt lane change without signaling in proximity of the DUI checkpoint 3 The credibility of Phelp’s version of events is a matter for the 4 jury. 5 his traffic stop of Plaintiff. 6 Plaintiff was pulled over because his vehicle did not have a front 7 license plate. 8 he pulled Plaintiff over for making an abrupt lane change. 9 DMV hearing officer and the Superior Court expressed doubts about 10 Phelp’s explanation, and the Superior Court suppressed the State’s 11 evidence due to its rejection of Phelp’s version of events.2 Phelps has given conflicting explanations of the basis for Phelp’s police report indicates Phelps testified at the DMV hearing, however, that Both a 12 The factual dispute regarding the credibility and basis for 13 Phelp’s traffic stop of Plaintiff precludes summary judgment. This 14 factual dispute also precludes the grant of qualified immunity. 15 Clearly establish federal law requires traffic stops to be based on 16 reasonable suspicion. 17 been settled law since the 1970's that in order for a police 18 officer to initiate an investigatory stop of a motorist, there must 19 at least exist reasonable suspicion that the motorist is engaging 20 in illegal activity") (citation omitted). 21 DENIED on the issue of the reasonableness of Phelp’s traffic stop 22 of Plaintiff. 23 /// 24 /// E.g., Liberal, 632 F.3d at 1077 (“It has Summary judgment is 25 26 27 28 2 Plaintiff asserts res judicata concerning the reasonableness of Phelp’s traffic stop, but the Superior Courts order is not before the court. Further, Plaintiff represents that the court found that the traffic stop was not supported by probable cause–this is the incorrect constitutional standard, however, as traffic stops require only reasonable suspicion. 8 b. 1 2 Reasonableness of Plaintiff’s Arrest Warrantless arrests require probable cause. E.g., United 3 States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). "Probable 4 cause to arrest exists when officers have knowledge or reasonably 5 trustworthy information sufficient to lead a person of reasonable 6 caution to believe that an offense has been or is being committed 7 by the person being arrested." 8 dispute that probable cause existed to effect his arrest once 9 Phelp’s initiated the Id. traffic stop. Plaintiff cannot seriously It is undisputed that 10 Plaintiff admitted he had been drinking and blew a .08 blood 11 alcohol level, the statutory minimum for presumptive blood alcohol 12 content, in a breath test before he was arrested. 13 probable cause therefor existed to believe Plaintiff was driving 14 under the influence. 15 cause to arrest Plaintiff is GRANTED. Objective Summary judgment on the issue of probable 16 2. Fourteenth Amendment Claim 17 The Complaint appears to allege a Fourteenth Amendment claim 18 based on alleged discriminatory treatment of Plaintiff during his 19 arrest. 20 cited for the DUI, and that his wife was not permitted to drive the 21 vehicle home; Plaintiff alleges other non-African American officers 22 have received such accommodations when suspected of driving under 23 the influence. 24 conditions of release of vehicles to responsible parties in DUI 25 cases. 26 support an inference of discrimination if Plaintiff has such 27 foundational evidence and knowledge that any Defendant was involved 28 in the instances Plaintiff refers to in which other officers were Plaintiff complains that he was booked instead of merely Plaintiff does not refer to specific instances or Disparate treatment of non-African American officers may 9 1 given citations for DUI and not arrested. 2 that the “comparable” situations Plaintiff describes were under the 3 influence to the same degree Plaintiff was during his arrest. 4 Summary judgment is DENIED on Plaintiff’s Fourteenth Amendment 5 claim subject to a foundational evidentiary showing of comparable 6 incidents. 7 3. Monell Claim 8 As The foundation includes to Plaintiff’s claim that his traffic stop was not 9 supported by reasonable suspicion, he has not offered evidence that 10 the Department has a discriminatory “driving while black” policy or 11 practice 12 Americans, or that any other basis for Monell liability exists in 13 connection with Plaintiff’s traffic stop. 14 GRANTED to the City as to the Monell claim on the civil rights 15 action. of conducting unreasonable traffic stops of African Summary judgment is ORDER 16 17 For the reasons stated, IT IS ORDERED: 18 1) Summary judgment on the issue of existence of probable 19 cause to arrest Plaintiff is GRANTED; 20 2) Summary judgment on the issue of existence of reasonable 21 suspicion to effect a traffic stop of Plaintiff is DENIED; 22 3) Summary judgment on Plaintiff’s Fourteenth Amendment claim 23 is DENIED subject to a Fed. R. Evid. 104 foundation; 24 4) Summary judgment on Plaintiff’s FEHA claims is DENIED; 25 5) The City’s motion for summary judgment on the Monell claim 26 is GRANTED; and 27 6) Defendants shall submit a form of order consistent with 28 this memorandum decision within five (5) days of electronic 10 1 service of this decision. 2 IT IS SO ORDERED. 3 Dated: hkh80h July 13, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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