-SKO Lewis v. City Of Fresno, et al., No. 1:2008cv01062 - Document 104 (E.D. Cal. 2011)
Court Description: MEMORANDUM, OPINION and ORDER GRANTING, in part, and DENYING, in part, defendants' Motion for Summary Judgment against Gerald Miller, document 73 . The motion is GRANTED as to plaintiff's FEHA discrimination claim, DENIED as to plaintiff& #039;s FEHA retaliation claim, and GRANTED as to plaintiff's federal claims and DIRECTING 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. 104 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:08-cv-01062-OWW-GSA JAMES LEWIS, et al., 9 MEMORANDUM DECISION RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST GERALD MILLER (Doc. 73) Plaintiff, 10 11 12 13 v. CITY OF FRESNO, et al., Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION. Gerald Miller (“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 6, 2011. (Doc. 73). Plaintiff filed opposition on June 6, 2011. (Doc. 82). Defendants filed a reply on June 13, 2011. (Doc. 91). II. FACTUAL BACKGROUND. Plaintiff is an African American police officer employed by the Fresno Police Department (“Department”). On September 10, 2007, Plaintiff was driving his personal vehicle on Fowler Avenue near the intersection of Tulare in Fresno County while off-duty. A vehicle passed Plaintiff, and a few moments later, Officer Anthony Bustos (“Bustos”) activated his lights, drove past Plaintiff’s vehicle, and initiated a traffic 28 1 Dockets.Justia.com 1 stop of the vehicle that had passed Plaintiff. The vehicle pulled 2 into a Seven-Eleven Parking lot, followed by Bustos. 3 also drove into the Seven-Eleven parking lot and parked in front of 4 the entrance to the store. Plaintiff 5 As Plaintiff exited his vehicle, Bustos pointed his finger at 6 Plaintiff and yelled “you’re lucky you’re not getting a ticket 7 too.” Miller responded “for what?” and Bustos replied “speeding.” 8 Plaintiff started to turn toward the store and said in an angry 9 voice “you need to get on with that.” 10 Bustos then asked Plaintiff for identification. 11 Plaintiff walked to the passenger side of his vehicle, opened 12 the door, got his driver’s license and police ID out of his wallet, 13 and handed both items to Bustos. 14 alongside the driver’s side of his vehicle towards the store and 15 Bustos ordered him to stop. 16 saying, “you have my IDs right there.” 17 if he went in the store he would be arrested. 18 assistance and other officers arrived on scene, including Sergeant 19 John 20 detention. Chandler. Plaintiff Plaintiff started to walk Plaintiff started back in the store made known Bustos told Plaintiff that his Bustos requested objections to his 21 On October 24, 2007, Plaintiff appeared in court with legal 22 counsel, Franz Criego, for the traffic citation issued by Bustos. 23 During the course of questioning Officer Bustos, Criego made a 24 comment using the term “DWB” to which Bustos responded “your Honor, 25 I’m now being accused of racist remarks and I probably think we 26 ought to have the City Attorney here now.” 27 hearing was the last hearing scheduled that day, three officers 28 from the Department remained in the courtroom during his hearing, 2 Although Plaintiff’s 1 including Officer Stuart Riba. 2 On September 11, 2007, Plaintiff lodged a formal citizen’s 3 complaint regarding to Bustos’ conduct during the September 10, 4 2007 traffic stop. An Internal Affairs investigation was conducted 5 by Bustos’ supervisor, John Chandler, who had responded to the 6 scene. 7 directed to Department Chief Jerry Dyer through Captain Greg Garner 8 and officer Patrick Farmer identified as Personnel Complaint IA 9 2007-0120. On November 7, 2007, Chandler prepared a Memorandum Plaintiff’s name was handwritten on the face of the 10 November 2007 memorandum as an accused. The November 2007 11 Memorandum states a finding that Plaintiff violated professionalism 12 standards. 13 required by Department policy. Plaintiff was never informed of the investigation as 14 On October 25, 2007, the day after Plaintiff’s traffic court 15 hearing, an Internal Affairs investigation was initiated against 16 Plaintiff contending he had engaged in misconduct at the hearing by 17 (a) identifying himself as an officer; (b) contending the citation 18 was racially motivated; (c) accessing records improperly or for an 19 improper purpose; and (d) using profanity at the hearing. The 20 October 2007 Internal Affairs instigation was conducted by Sgt. 21 Mindy Medina-Casto. 22 On September 8, 2008, Plaintiff filed a complaint with 23 California’s Department of Fair Employment and Housing (“DFEH”) 24 alleging that the City had failed to prevent race discrimination 25 and/or retaliation with reference to the subject traffic incident 26 and the court appearance. 27 In 2009, Plaintiff was involved in a collision on duty when 28 another car ran a red light. The matter went through an Internal 3 1 Affairs investigation and Plaintiff received a documented oral 2 reprimand. 3 In 2010, Plaintiff was written up for insubordination by Sgt. 4 Alvarez. Plaintiff protested that he felt Alvarez’s conduct was 5 racially 6 harassment was conducted.1 motivated. No investigation of the alleged racial III. LEGAL STANDARD. 7 8 Summary judgment/adjudication is appropriate when "the 9 pleadings, the discovery and disclosure materials on file, and any 10 affidavits show that there is no genuine issue as to any material 11 fact and that the movant is entitled to judgment as a matter of 12 law." Fed. R. Civ. P. 56(c). The movant "always bears the initial 13 responsibility of informing the district court of the basis for its 14 motion, 15 depositions, answers to interrogatories, and admissions on file, 16 together with the affidavits, if any, which it believes demonstrate 17 the absence of a genuine issue of material fact." Celotex Corp. v. 18 Catrett, 19 omitted). and 477 identifying U.S. 317, those 323 portions (1986) of (internal the pleadings, quotation marks 20 Where the movant will have the burden of proof on an issue at 21 trial, it must "affirmatively demonstrate that no reasonable trier 22 of fact could find other than for the moving party." 23 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 24 respect to an issue as to which the non-moving party will have the 25 burden of proof, the movant "can prevail merely by pointing out 26 that there is an absence of evidence to support the nonmoving Soremekun v. With 27 1 28 Plaintiff’s allegation concerning the 2010 action by Alvarez is not alleged in the complaint. 4 1 party's case." Soremekun, 509 F.3d at 984. 2 When a motion for summary judgment is properly made and 3 supported, the non-movant cannot defeat the motion by resting upon 4 the 5 "non-moving party must set forth, by affidavit or as otherwise 6 provided in Rule 56, 'specific facts showing that there is a 7 genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A 9 non-movant's bald assertions or a mere scintilla of evidence in his 10 favor are both insufficient to withstand summary judgment." FTC v. 11 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must 12 show a genuine issue of material fact by presenting affirmative 13 evidence from which a jury could find in his favor." Id. (emphasis 14 in original). "[S]ummary judgment will not lie if [a] dispute about 15 a material fact is 'genuine,' that is, if the evidence is such that 16 a reasonable jury could return a verdict for the nonmoving party." 17 Anderson, 477 U.S. at 248. In determining whether a genuine dispute 18 exists, a district court does not make credibility determinations; 19 rather, the "evidence of the non-movant is to be believed, and all 20 justifiable inferences are to be drawn in his favor." Id. at 255. 21 IV. DISCUSSION. 22 allegations or denials of its own pleading, rather the A. FEHA Claims 23 California’s Fair Employment and Housing Act (“FEHA”) makes it 24 an “unlawful employment practice” for any employer “because of the 25 race...to discriminate against the person in compensation or in 26 terms, conditions, or privileges of employment.” Cal. Gov. Code, § 27 12940(a). 28 discrimination The elements are (1) of a the FEHA claim employee's 5 for employment membership in a 1 classification protected by the statute; (2) discriminatory animus 2 on the part of the employer toward members of that classification; 3 (3) an action by the employer adverse to the employee's interests; 4 (4) a causal link between the discriminatory animus and the adverse 5 action; (5) damage to the employee, and (6) a causal link between 6 the adverse action and the damage. 7 Inc., 165 Cal. App. 4th 686, 713 (Cal. Ct. App. 2008). 8 FEHA's discrimination Mamou v. Trendwest Resorts, provision addresses only explicit 9 changes in the “terms, conditions, or privileges of employment.” 10 Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (Cal. 2010) (citing 11 (§ 12940(a)). 12 employer, the institution or corporation itself must have taken 13 some official action with respect to the employee, such as hiring, 14 firing, failing to promote, adverse job assignment, significant 15 change 16 action. in In the case of an institutional or corporate compensation or benefits, or official disciplinary Id. 17 Plaintiff identifies three alleged adverse employment actions 18 taken against him: (1) a “blue sheet” counseling memo he received 19 on November 7, 2007 stating that he “violated professionalism” 20 during the traffic stop by using profanity; this is official 21 disciplinary action; (2) an Internal Affairs investigation related 22 to his conduct during the court hearing on his speeding ticket; and 23 (3) the disciplinary action taken against him in 2010 by Alvarez. 24 (Doc. 82, Opposition at ).2 25 action taken by Alvarez However, the alleged discriminatory occurred after Plaintiff filed the 26 27 2 28 The complaint also alleges that reassignment of Bustos to Plaintiff’s division was retaliatory, but Plaintiff has apparently abandoned this theory. 6 1 complaint in February 2009. To the extent Plaintiff has FEHA 2 claims arising out of Alvarez’s conduct, such claims are beyond the 3 ambit of the complaint.3 4 1. FEHA Discrimination 5 Plaintiff contends that the blue sheet he was issued in 2007 6 and the Internal Affairs investigation concerning his conduct at 7 the court hearing on his speeding ticket were racially motivated. 8 Plaintiff 9 accordingly, provides no direct Plaintiff must evidence rely on the of racial McDonald animus; Douglass 10 framework. See, e.g., Guz v. Bechtel National, Inc., 24 Cal. 4th 11 317, 354 (Cal. 2000). 12 absent evidence of circumstances supporting an inference racial 13 discrimination, there is a failure of proof. 14 Under the McDonald Douglass framework, Id. It is undisputed that the individual responsible for issuing 15 the blue sheet to Plaintiff was Deputy Chief Nevarez. 16 undisputed that Nevarez decision was not based on Plaintiff’s race. 17 (Doc. 82-1, Plaintiff’s Response to DUMF No. 26). 18 undisputed that Nevarez has issued blue sheets to non-African 19 American officers for using profanity in public, and that Bustos 20 also received a blue sheet in connection with the traffic stop 21 incident. 22 There is no evidence that the blue sheet Nevarez issued was 23 motivated by racial animus. 24 It is also Finally, it is (Doc. 82-1, Plaintiff’s Response to DUMF Nos. 25, 27). Plaintiff also contends that the Internal Affairs 25 investigation was motivated by racial discrimination. It is 26 undisputed report that Officer Riba made the decision to 27 3 28 Allegations against Alvarez may be considered for their probative value to the extent such allegations are relevant to the claims pled in the complaint. 7 1 Plaintiff’s conduct during the court hearing, leading to the 2 Internal Affairs investigation. 3 evidence is offered that Riba was motivated by racial animus. Other than Plaintiff’s race, no 4 2. FEHA Retaliation 5 An employee is protected from retaliation even if there is no 6 discrimination in fact, provided the employee has a reasonable, 7 good faith belief that FEHA is being violated. 8 Robert F. Kennedy Med. Ctr., 56 Cal. App. 4th 138, 160 n.27 (Cal. 9 1997) (citations omitted). of Accordingly, the fact that Plaintiff’s 10 substantive 11 support does not preclude his retaliation claim.4 12 claims E.g., Sada v. racial discrimination lack evidentiary Whether the actions Plaintiff complains of were retaliatory is 13 subject to factual disputes that preclude summary judgment. 14 Plaintiff objected to perceived racial discrimination in both his 15 citizen’s complaint to the Department and at his court hearing on 16 the citation. 17 sheet and subjected to an Internal Affairs investigation. 18 temporal 19 investigation to Plaintiff’s protected activity raises an inference 20 of retaliation sufficient to defeat summary judgment. A memorandum 21 prepared in connection with the Internal Affairs investigation 22 suggests that Plaintiff would have been subjected to discipline but 23 for the investigator’s conclusion that Plaintiff did not know his 24 attorney would make allegations of discrimination against Busto. 25 (Doc. 82-11 at 34, Ex. 9 to Church Decl.). 26 provides, in pertinent part: Shortly thereafter, Plaintiff was issued a blue proximity of the blue sheet and Internal The Affairs The memorandum 27 4 28 Whether Plaintiff had a reasonable good faith belief that discriminated against is a factual question that remains open. 8 he was being 1 2 3 4 Had Miller known his attorney was going to make racial allegations against [Busto] on the witness stand, Miller’s identification of himself as an officer would have amounted to a lack of sound judgment. Although the racial profiling allegations made against [Busto] undoubtedly discredited the Department because two Fresno Police Officers were involved, Miller was not directly responsible for it. 5 6 A jury presented with the Internal Affairs memorandum could draw 7 the reasonable inference that the Department considers an officer’s 8 objection 9 reprimand to chill such complaints. to alleged racial discrimination conduct worthy of The evidence Plaintiff has 10 presented is sufficient to create a factual dispute on the issue of 11 whether the blue sheet and Internal Affairs investigation were 12 retaliatory for Plaintiff’s claim of race discrimination in the way 13 his traffic matter was handled by Bustos and the Department. 14 Defendants contention that neither the blue sheet nor the 15 Internal Affairs investigation constituted adverse action within 16 the meaning of FEHA is unavailing. 17 Fresno, 2009 U.S. Dist. LEXIS 58920 * 12-14 (E.D. Cal 2009) (noting 18 lack of binding authority for proposition that Internal Affairs 19 investigation 20 disrupted employment). Defendant’s authorities do not conclusively 21 establish the actions Defendant complains of are insufficient as a 22 matter of law to constitute adverse employment action. 23 judgment on Plaintiff’s FEHA retaliation claim is DENIED 24 B. Section 1983 Claim was not adverse See, e.g., Plymale v. City of action and that investigation Summary 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 Constitution or laws of the United States." 9 E.g., Browne v. San 1 Francisco Sheriff's Dep't, 616 F. Supp. 2d 975, 982 (N.D. Cal. 2 2009) (citing White v. Roper, 901 F.2d 1501, 1503 (9th Cir. 1990)). 3 The complaint alleges violation of Plaintiff’s rights under the 4 Fourteenth and Fourth Amendments arising out of Bustos’ issuance of 5 the speeding ticket to Plaintiff. 6 The Fourth Amendment unreasonable to the United seizures. The States Constitution 7 prohibits reasonableness of a 8 particular seizure requires balancing of the nature and quality of 9 the seizure against the governmental interest at stake. See, e.g., 10 Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011). 11 stops are investigatory stops that must be based on reasonable 12 suspicion that a traffic law violation occurred. 13 1077; United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005). 14 Reasonable 15 which, together with objective and reasonable inferences, form the 16 basis for suspecting that the particular person detained is engaged 17 in criminal activity.'" Easyriders Freedom F.I.G.H.T. v. Hannigan, 18 92 F.3d 1486, 1496 (9th Cir. 1996). 19 prohibits reasonable suspicion from being based on broad profiles 20 which cast suspicion on entire categories of people without any 21 individualized suspicion of the particular person to be stopped." 22 United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir. 23 1994). 24 suspicion consists of “specific, Traffic E.g., id. at articulable facts A "gloss on this rule Plaintiff contends that Bustos did not have probable cause to 25 detain Plaintiff or to issue him a traffic citation for speeding. 26 Probable cause was not required, however, as reasonable suspicion 27 is the standard applicable to traffic stops. 28 632 F.3d at 1078 (noting lack of reasonable suspicion where no 10 Id; accord Liberal, 1 traffic law had been violated). Further, Plaintiff’s contention 2 that “Bustos did not assert his authority until after probable 3 cause for [the citation’s] initial issuance had dissipated” is 4 devoid of merit.5 5 based on an officer’s personal observations does not “dissipate” 6 with the passage of a few moments. 7 whether Bustos observed sufficient objective facts that, combined 8 with reasonable inferences, a reasonable suspicion of a traffic 9 violation existed. Reasonable suspicion of a traffic violation The operative inquiry is 10 Bustos submits a sworn declaration which states that he 11 observed three vehicles traveling approximately 35-38 miles per 12 hour in a 25 miles per hour school zone. 13 Plaintiff’s vehicle was the third vehicle, and that he clocked 14 Plaintiff at 35 mph on his radar. 15 over the second vehicle, which he believed had been driving faster 16 than the first vehicle. 17 could have differentiated between his vehicle and the other two. 18 Assuming 19 immaterial. 20 vehicle 21 opportunity to observe the events to lead him to reasonably suspect 22 that Plaintiff was traveling in excess of the posted speed limit. 23 There is no allegation that Bustos’ seizure of Plaintiff was 24 unnecessarily protracted or otherwise unreasonable. If Bustos’ had arguendo this Bustos states that Bustos made the decision to pull Plaintiff disputes whether Bustos’ radar is a genuine factual dispute, it is Even if one of the other three vehicles was the registered by Bustos’ radar, Bustos had sufficient 25 26 27 28 5 Equally devoid of merit is Defendants’ contention that no seizure was effected. Accepting Plaintiff’s version of the facts as true, Bustos restrained Plaintiff’s movement and ordered him to remain stationary under threat of arrest. It is unnecessary to address Defendants’ invocation of Heck v. Humphrey, 512 U. S. 477 (1994), as Plaintiff’s section 1983 claim does not survive. 11 1 reasonable suspicion to believe Plaintiff was speeding, Plaintiff 2 cannot prevail on a Fourth Amendment claim arising out of his 3 traffic stop. 2. Fourteenth Amendment Claim 4 5 Summary judgment is GRANTED as to this claim. Plaintiff contends that his speeding ticket was racially 6 motivated. Plaintiff presents no evidence in support of his 7 allegation of racial animus on Bustos’ part, however. 8 Plaintiff makes the conclusory assertion that “similarly situated 9 persons would not been issuance of subjected a to traffic Bustos’ selective 10 enforcement 11 inferentially suggests that other officers are not cited under 12 comparable circumstances. 13 that such asserted practice is preferential treatment of fellow 14 officers suspected of traffic violations based on race. Plaintiff 15 does not identify any similarly situated individuals. Summary 16 judgment is GRANTED as to this claim. citation.” This However, Plaintiff offers no evidence 3. Monell Claim 17 18 and have Instead, As Plaintiff has no valid civil rights claim under section 19 1983, there is no basis for Monell liability. 20 Summary judgment is GRANTED as to this claim. ORDER 21 22 For the reasons stated, IT IS ORDERED: 23 1) 24 discrimination claim; 25 2) Summary judgment is DENIED on Plaintiff’s FEHA retaliation 26 claim; 27 3) Summary judgment is GRANTED on Plaintiff’s federal claims; 28 and Summary judgment is GRANTED 12 on Plaintiff’s FEHA 1 4) Defendants shall submit a form of order consistent with 2 this memorandum decision within five (5) days of electronic 3 service of this decision. 4 IT IS SO ORDERED. 5 Dated: hkh80h July 13, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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