Neal, et al v. California City, et al, No. 1:2014cv00269 - Document 49 (E.D. Cal. 2015)

Court Description: ORDER Granting in Part and Denying in Part Defendants' 38 Motion for Summary Judgment, signed by District Judge Anthony W. Ishii on 7/10/2015. (Telephonic Status Conference set for 7/22/2015, at 02:00 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. Pretrial Conference previously set for 7/29/2015, is CONTINUED to 8/12/2015, at 10:00 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii.) (Gaumnitz, R)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JAMES WILLIAM NEAL III and CORDELIA NEAL, 1:14-cv-00269-AWI-JLT ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 16 17 Plaintiffs, v. CALIFORNIA CITY, a public entity; CHRISTOPHER MORGAN, a public (Doc. #38) employee; DETECTIVE BISHOP, a public employee; SERGEANT HAYES, a public employee; JESSE HIGHTOWER, a public employee; and DOES 1-10, Defendants. 18 19 __________________________________/ 20 21 I. Introduction Plaintiffs James William Neal III and Cordelia Neal (collectively “Plaintiffs”) bring this 22 civil rights action against the City of California City, and law enforcement officers Christopher 23 Morgan, John Bishop, Shannon Hayes, Jesse Hightower, and Does 1-10 (collectively 24 “Defendants”), relating to alleged violations of Plaintiffs’ constitutional rights in conducting 25 searches on April 5, 2013, and September 19, 2013, the former of which resulted in Mr. Neal’s 26 arrest. Plaintiffs have alleged three claims against Defendants: (1) deprivation of Plaintiffs’ 27 Fourth Amendment right to freedom from unreasonable search and Fourteenth Amendment right 28 1 1 to due process1 in violation of 42 U.S.C. § 1983; (2) false arrest; and (3) abuse of process. On 2 March 9, 2015, Defendants moved for summary judgment as to all three claims. Plaintiff 3 opposed summary judgment as to the first and second claims. For the following reasons, 4 Defendants’ motion for summary judgment will be granted in part and denied in part. 5 II. Background 6 A multi-agency probation and parole compliance sweep took place in California City on 7 April 5, 2013. See Joint Statement of Undisputed Facts (“JSUF”) at ¶ 1. Mr. Neal was included 8 on the list of persons to be searched. JSUF at ¶ 2. On that date, Plaintiffs were subjected to a 9 warrantless search of their home based on the mistaken belief, held by the law enforcement 10 officers who conducted the search, that Mr. Neal was on Post-Release Community Supervision 11 (“PRCS”).2 JSUF at ¶¶ 3-4; Defendants Separate Statement of Undisputed Facts (“DSSUF”) at 12 ¶¶ 9-10. Defendants have submitted evidence, in the form of deposition transcripts from the 13 involved officers and the Kern County Police Dispatcher then on call, tending to indicate that the 14 officers conducting the search attempted to determine Mr. Neal’s PRCS status prior to the search 15 and again once they arrived at his residence. DSSUF at ¶¶ 10, 13-16.3 Specifically, Defendants 16 Morgan4 and Hayes both contacted the California City police dispatch prior to the search. 17 DSSUF at ¶¶ 13, 15. Defendant Morgan indicated that his verification of PRCS status with 18 dispatch occurred just outside Mr. Neal’s front door, prior to entry of the home. Morgan Depo. 19 32:15-24. Defendant Hayes indicated that he initially relied on paperwork provided by a non20 defendant officer, Lieutenant Huizar, which indicated that Mr. Neal was on PRCS. Deposition of 21 22 23 24 25 26 27 28 1 Neither party has discussed the Fourteenth Amendment claim in their moving papers. PRCS is a relatively new designation, resulting from California Assembly Bill (“AB”) 109, signed into effect in 2011. AB 109 implemented a “realignment” policy whereby offenders convicted of non-violent and non-serious offenses released from the California Department of Corrections and Rehabilitation (“CDCR”) are supervised by county probation departments rather than by the parole department of the CDCR. See generally Couzens & Bigelow, Felony Sentencing After Realignment (February 2015), located at http://www.courts.ca.gov/partners/documents/felony_sentencing.pdf (last accessed June 19, 2015). 3 Plaintiff indicates that this fact is “disputed” but only asserts the objection that the evidence is inadmissible insofar as it seeks to prove that Mr. Neal was actually on PRCS as the time of the search. It is undisputed that Mr. Neal was not actually on PRCS at the time of the search. Because Plaintiff has submitted no evidence to the contrary, it is also undisputed that the Defendant officers believed that Mr. Neal was on PCRS on April 5, 2013. 4 Defendant Morgan indicated that he or Defendant Bishop contacted dispatch over the radio to confirm Mr. Neal’s probation status. Deposition of Christopher Morgan, Doc. 38-9 (“Morgan Depo.”) at 31:3-32:10. 2 2 1 Shannon Hayes, Doc 38, (“Hayes Depo.”) at 18:16-21. Although he did not arrive at the Neal 2 home until after the search had commenced, when he did arrive, Defendant Hayes contacted the 3 police dispatcher to confirm Mr. Neal’s PRCS status. Hayes Depo. at 21:1-23. 4 Police dispatcher, Michelle Jones, was the dispatcher on the date of the search. See 5 Deposition of Michelle Jones, Doc. 43-2, (“Jones Depo.”) at 20:2-6. Ms. Jones described that her 6 duties included determining for officers whether an individual that the officer has made contact 7 with is on parole, probation, or PRCS. Ms. Jones identified three database systems available to 8 California City law enforcement: (1) the RIMS system5, the CJIS system, and the California Law 9 Enforcement Telecommunication System (“CLETS”). Jones Depo. at 17:6-14. Ms. Jones did not 10 recall running a report regarding Mr. Neal. Jones Depo. at 26:13-15. However, Ms. Jones 11 indicated, based on the “RIMS report to query” document presented to her (Doc. 43-2 at 26), that 12 she accessed Mr. Neal’s profile through the RIMS system, then – using RIMS – ran that profile 13 for “James Neal” with a date of birth of September 26, 1960, through the CLETS system. The 14 printout, bearing the run date of April 5, 2013 at 3:49 p.m., indicates that the CLETS system 15 returned a hit. See Doc. 43-2 at 26. The relevant portion of that hit begins by indicating that Mr. 16 Neal, on the date of the query, was and had been on PRCS since January 7, 2012. Jones Depo. at 17 29:13-18. However, the supervision discharge date was listed as “99999999.” Doc. 43-2 at 26; 18 see Jones Depo. at 25:1-7, 29:19-23. Ms. Jones indicated that the value entered for discharge 19 date means that there was no scheduled discharge date. Jones Depo. at 29:19-23. The report also 20 indicated that county probation should be contacted to verify Mr. Neal’s current PRCS status. 21 Doc. 43-2 at 26; see Jones Depo. at 34:6-35:11. Ms. Jones indicated that her procedure at the 22 time would have been to run a CJIS report to confirm PRCS status based on that information. 23 24 5 Ms. Jones description, the RIMS be a Kern 25 toBased ondispatcher or officer on notice thatsystem appears toofficer has County specific program that is designed place a a person who an made contact with may be on parole, probation, or PRCS, or have some other status classification, or an outstanding warrant. However, RIMS is not a 26 standalone system; an officer may have to run a query – using RIMS - through either CLETS or CJIS for complete information. See Jones Depo. 17:6-23, 18:11-21, 20:16-22:9. It therefore appears to the Court that the RIMS system 27 is both a local database for the Kern County Police Department and a conduit for the Police Department to search 28 other databases. 3 1 Jones Depo. at 34:20-35:22. She indicated that CJIS inquiries were not memorialized unless a 2 specific request was made to do so. Jones Depo. 37:12-21. 3 Based on the records inquiries described above, it appears that Ms. Jones informed at 4 least Defendant Hayes and possibly Defendant Morgan (and/or Defendant Bishop), that Mr. Neal 5 was on PCRS. Morgan Depo. at 32:8-9; Hayes Depo. at 21:6-23. 6 During the search, a controlled substance was discovered and Mr. Neal was placed under 7 arrest. DSSUF at ¶¶ 17-18.6 It was later discovered that Mr. Neal was not actual on PRCS at the 8 time of the search. DSSUF at ¶ 19. He was released from custody and the charges against him 9 were dropped. 10 Approximately five months later, law enforcement obtained a warrant for search of the 11 Neal home. DSSUF at ¶ 28; Doc. 38-15 at 10-20. The search warrant was executed on 12 September 19, 2013 but no controlled substances or contraband were discovered. JSUF at ¶ 6. 13 During the search Plaintiffs home Defendant Morgan – a male police officer – searched Mrs. 14 Neal when she sought permission to reenter the home to use the restroom. Deposition of Cordelia 15 Neal, Doc. 43-9 (“C.Neal Depo.”) at 31:16-32:25; but see Morgan Depo. at 38:25-39:5 16 (Defendant Morgan does not remember conducting any search of Mrs. Neal). The search took 17 only “a few seconds.” C.Neal Depo. at 32:8-10. Plaintiffs contend that the Defendants destroyed Plaintiffs’ personal property during the 18 19 course of both searches. Doc. 39 at 7; see C.Neal Depo. at 47:12-53:17 20 III. Legal Standard The Federal Rules of Civil Procedure provide for summary judgment when “the movant 21 22 shows that there is no genuine dispute as to any material fact and the movant is entitled to 23 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Early resolution of issues that present no 24 dispute genuine dispute of material fact serves a principal purpose of Rule 56 – disposing of 25 unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) 26 27 28 6 Plaintiff contests the legality of the search, not that an officer discovered the controlled substance in Mr. Neal’s home. 4 1 The party moving for summary judgment bears the initial burden of “informing the 2 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 4 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 5 477 U.S. at 323; see Fed. R. Civ. P. 56(c)(1)(A). “Where the non-moving party bears the burden 6 of proof at trial, the moving party need only prove that there is an absence of evidence to support 7 the non-moving party’s case.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 8 Cir. 2010) (citing Celotex, 477 U.S. at 325). If the moving party meets its initial burden, the 9 burden shifts to the non-moving party to present evidence establishing the existence of a genuine 10 dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 11 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate 12 a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing 13 law, see Liberty Lobby, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 14 809 F.2d 626, 630 (9th Cir. 1987), and genuine, i.e., the evidence is such that a reasonable jury 15 could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 16 1433, 1436 (9th Cir. 1987). 17 In resolving the summary judgment motion, the court examines the pleadings, 18 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 19 any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The court 20 must construe all facts and inferences in the light most favorable to the non-moving party. See 21 Liberty Lobby, 477 U.S. at 255. However, conclusory and speculative testimony does not raise a 22 genuine factual dispute and is insufficient to defeat summary judgment. See Thornhill 23 Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738–39 (9th Cir. 1979). 24 25 IV. Discussion Based on the below discussion, this Court will grant summary adjudication: (1) in favor 26 of the City of California City on Plaintiff’s Monell claim – to the extent that one is articulated – 27 because Plaintiffs failed to submit evidence indicating that a policy, custom, or practice led to the 28 5 1 alleged constitutional deprivations, (2) in favor of the individual defendants as to the Plaintiffs’ 2 claim that the searches of Plaintiffs’ home were unreasonable; Defendants are entitled to 3 qualified immunity with respect to both searches; (3) in favor of all defendants as to Mr. Neal’s 4 false arrest claim because probable cause to arrest existed at the time of the arrest, (4) in favor of 5 all defendants as to Mr. Neal’s state law false imprisonment claim based on statutory immunity, 6 and (5) in favor of all defendants as to Plaintiffs’ abuse of process claims. This Court will deny 7 Defendants’ motion for summary judgment regarding Defendants’ destruction of Plaintiffs’ 8 property and the pat down search of Mrs. Neal. 9 A. Plaintiff’s Claims Against the City of California City 10 This Court has identified no discernable Monell type claim from the operative complaint. 11 However, Plaintiffs did name the City of California City7 as a defendant, and as Defendants 12 correctly note, the only way that the City could be liable for a civil rights violation as a direct 13 defendant is pursuant to Monell. See Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) 14 (explaining that municipal liability under § 1983 exists only for constitutional violations 15 occurring pursuant to an official government policy or custom).8 The Ninth Circuit recently 16 summarized the fundamental jurisprudence of § 1983 municipal liability: 17 [A]lthough § 1983 imposes liability only on “persons” who, under color of law, deprive others of their constitutional rights, the Supreme Court has construed the term “persons” to include municipalities such as the County. [citation]. A municipality is responsible for a constitutional violation, however, only when an “action [taken] pursuant to [an] official municipal policy of some nature” caused the violation. [citation]. This means that a municipality is not liable under § 1983 based on the common-law tort theory of respondeat superior. [citation]. On the other hand, the official municipal policy in question may be either formal or informal. [citations and parenthetical explanations]. 18 19 20 21 22 23 24 25 26 27 28 7 Plaintiffs also initially named the California City Police Department but agreed to its dismissal on January 27, 2015. Doc. 37. 8 Plaintiffs appear to fundamentally misunderstand municipal liability under § 1983. See Complaint at ¶ 5 (referring to alleged constitutional violations by California City Police Officers giving rise to liability under the doctrine of respondeat superior). It is fundamental law of constitutional torts that “a municipality cannot be held liable solely because it employs a tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691 (1978); Castro v. Cnty. of Los Angeles,, 785 F.3d 336, 350 (9th Cir. 2015). 6 1 2 3 4 5 6 [¶] An informal policy […] exists when a plaintiff can prove the existence of a widespread practice that, although not authorized by an ordinance or an express municipal policy, is “so permanent and well settled as to constitute a custom or usage with the force of law.” [citation]. Such a practice, however, cannot ordinarily be established by a single constitutional deprivation, a random act, or an isolated event. [citation]. Instead, a plaintiff … must show a pattern of similar incidents in order for the factfinder to conclude that the alleged informal policy was “so permanent and well settled” as to carry the force of law. [citation]. 7 Castro v. Cnty. of Los Angeles, 785 F.3d 336, 350-51 (9th Cir. 2015) (citations omitted). For the 8 first time, in their opposition to motion for summary judgment, Plaintiffs allege that the City of 9 California City, despite its “state policy whereby a person’s property would be treated with 10 dignity and respect,” (Doc. 39 (citing Plaintiff’s Separate Statement of Undisputed Facts 11 (“PSSUF”) at ¶ 8) maintains an informal policy or custom of inadequately training its officers to 12 follow that policy. Plaintiffs contend that this claim was set forth Paragraph 9 of their Complaint 13 and “is supported by the evidence in this matter.” Doc 39 at 15. Neither contention is accurate. 14 Paragraph 9 of the Complaint – in its entirety – reads: 15 16 17 18 19 20 9. At the time of said arrest, the Plaintiffs’ home was searched unlawfully as there was neither any probable cause to conduct a search nor was there any other legal basis to conduct a search as the Plaintiff was neither on probation or on parole on April 5, 2013 and nor did he consent. Furthermore said search was conducted in a manner as to damage or destroy real and personal property of the Plaintiffs. The body search of Plaintiff, Cordelia Neal that was conducted on April 5, 2013 was also conducted in an inappropriate and intrusive manner that had no legitimate purpose of law enforcement and was unreasonable and performed for the sole purpose of demeaning and harassing said plaintiff. 21 It is unclear to the Court which part of Paragraph 9 should have placed Defendants on notice that 22 Plaintiffs sought to allege that the City of California City or the California City Police 23 Department had a policy, custom, or widespread practice of either destroying property during a 24 search or inadequately training their officers. Plaintiffs’ failure to clearly allege that Defendants’ 25 maintained any sort of unconstitutional policy is fatal to the Monell claim (articulated for the first 26 time in their opposition to Defendants’ motion for summary judgment). That said, “[a]n addition 27 of new issues during the pendency of a summary judgment motion can be treated as a motion for 28 7 1 leave to amend the complaint.” Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (citation 2 omitted). Because the claims articulated in Plaintiffs’ complaint were not refined by motions to 3 dismiss, this Court would grant leave to amend if such amendment is not futile, see Lopez v. 4 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (citations omitted); United States v. 5 Corinthian Colleges, 665 F.3d 984, 995 (9th Cir. 2011), and it does not prejudice the 6 Defendants, Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).9 7 Even assuming that a Monell claim was adequately set forth in the complaint, Plaintiffs’ 8 have submitted no evidence to support any finding of a failure to train California City officers. 9 Plaintiffs did submit evidence which tends to indicate that law enforcement destroyed some of 10 their property during each of the searches of the Neal home. C.Neal Depo. at 42:23-52:11. 11 However, the two instances reported by Mrs. Neal are inadequate to show a larger policy or 12 custom. “‘Liability for improper custom may not be predicated on isolated or sporadic incidents’ 13 and that ‘[t]he custom must be so “persistent and widespread” that it constitutes a “permanent 14 and well settled city policy.” ’ ” See Hunter v. Cnty of Sacramento, 651 F.3d 1225, 1233-1234 15 (9th Cir. 2011) (citations omitted). Evidence of a custom or practice, could be “inferred from 16 widespread practices or evidence of repeated constitutional violations for which the errant 17 municipal officers were not discharged or reprimanded.” Id. (citations and quotations marks 18 omitted). Evidence of a widespread and persistent policy is absent. 19 Assuming even further that a custom or practice existed under which California City law 20 enforcement officers were permitted to destroy property during the course of a search, that policy 21 may not violate Fourth Amendment. “Officers executing search warrants on occasion must 22 damage property to perform their duty.” Dalia v. United States, 441 U.S. 238, 258 (1979). In 23 order to rise to the level of a constitutional violation, the destruction of property must not be 24 reasonably necessary to effectively execute the search warrant. Pacific Marine Center, Inc. v. 25 Silva, 809 F.2d 1266, 1282 (E.D. Cal. 2011); see Mena v. City of Simi Valley, 226 F.3d 1031, 26 27 28 9 Although courts typically consider (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment in determining whether to grant leave to amend, Foman v. Davis, 371 U.S. 178, 182 (1962), the Ninth Circuit has held that prejudice to the opposing party carries the greatest weight, Eminence Capital, LLC, 316 F.3d at 1052. 8 1 1041 (9th Cir. 2000) (“[O]nly unnecessarily destructive behavior, beyond that necessary to 2 execute a warrant effectively, violates the Fourth Amendment.”) Assuming that the California 3 City Police Department has a policy allowing disassembly of household items that could contain 4 controlled substances, and removing clothes from closets, pictures from walls, and groceries 5 from cabinets, that policy would not violate the Fourth Amendment. 6 Plaintiffs’ have failed to adequately allege or present evidence to support a Monell claim. 7 Based on the evidence submitted, allowing Plaintiff to amend would be futile. Leave to amend 8 will be denied and Plaintiffs’ Monell claim – to the extent that it was ever alleged to begin with – 9 is adjudicated in favor of Defendants. 10 B. § 1983 Fourth Amendment Claim Against Individual Defendants 11 Plaintiffs appear to contend that the remainder of their first cause of action alleges that 12 the individual defendants violated the Fourth Amendment when they (1) unlawfully searched the 13 Neal home, (2) conducted a pat down search upon Mrs. Neal, (3) destroyed Plaintiffs’ property 14 during both searches, and (4) arrested Mr. Neal without a warrant or probable cause. 15 1. Unlawful Search of Home 16 Although the first inquiry in an § 1983 suit “is [generally] whether the Plaintiff has been 17 deprived of a right secured by the Constitution and laws,” Baker v. McCollan, 443 U.S. 137, 140 18 (1979), Defendants assume a violation attaching to each named defendant and contend that they 19 are entitled to qualified immunity. Accordingly, as to this claim, this Court will only address 20 whether the individual defendants are entitled to qualified immunity. 21 The qualified immunity analysis also begins with an inquiry into whether, “taken in the 22 light most favorable to the party asserting the injury, … the facts show the officer's conduct 23 violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001); see Wood v. Moss, --24 U.S. ----, 134 S.Ct. 2056, 2066–67 (2014) (quoting Ashcroft v. al–Kidd, 563 U.S. ----, 131 S.Ct. 25 2074, 2080 (2011)). If the answer to the first question is yes, the court then determines “whether 26 the right was clearly established,” and applies an “objective but fact-specific inquiry.” Inouye v. 27 Kemna, 503 F.3d 705, 712 (9th Cir. 2007); see Saucier, 533 U.S. at 202. However, district courts 28 9 1 need not rigidly adhere to the order imposed by the Saucier protocol; “district courts [are] 2 permitted to exercise their sound discretion in deciding which of the two prongs of the qualified 3 immunity analysis should be addressed first in light of the circumstances in the particular case at 4 hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). This Court needs only to address the 5 second prong. 6 The critical question for the second prong of the Saucier protocol is whether “the 7 contours of the right were sufficiently clear that a reasonable official would understand that what 8 he is doing violates the right.” Saucier, 533 U.S. at 202; Friedman v. Boucher, 580 F.3d 847, 858 9 (9th Cir. 2009); Inouye, 504 F.3d at 712. Whether a right is clearly established must be 10 “undertaken in light of the specific context of the case, not as a broad general proposition.” 11 Saucier, 533 U.S. at 201; Bingue v. Prunchak, 512 F.3d 1169, 1173 (9th Cir. 2008). If the officer 12 could have reasonably, but mistakenly, believed that his conduct did not violate a clearly 13 established constitutional right, then the officer will receive qualified immunity. See Saucier, 533 14 U.S. at 205–06; Johnson v. County of Los Angeles, 340 F.3d 787, 794 (9th Cir. 2003). 15 “‘Where an officer has an objectively reasonable, good-faith belief that he is acting 16 pursuant to proper authority he cannot be held liable if the information supplied by other officers 17 turns out to be erroneous.’” Torres v. City of Los Angeles, 548 F.3d 1197, 1212 (9th Cir. 2008) 18 (quoting Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir.2005) (en banc), rev'd on other grounds 19 by United States v. King, 687 F.3d 1189 (9th Cir.2012) (en banc)). To shield an officer from 20 liability, the reliance must be objectively reasonable. Id. Officers conducting a search “have an 21 ongoing duty to make appropriate inquiries regarding the facts received.” Motley, 432 F.3d at 22 1081. The Ninth Circuit has found that a searching officer’s duty is satisfied when, on the 23 morning of the search, he or she receives information from other officers confirming that the 24 subject of the search is on parole (or probation or PRCS), regardless of whether that information 25 turns out to be erroneous. Id. at 1082. 26 In this instance, at some time prior to the April 5, 2013 search, Defendant Hayes received 27 information tending to indicate that Mr. Neal was on PRCS. Then, on the day of the search, 28 10 1 Defendant Hayes and possibly Defendants Morgan or Bishop, confirmed with Ms. Jones, the 2 California City police dispatcher, that Mr. Neal was on PRCS. Ms. Jones confirmed with the 3 databases at the disposal of the California City Police Department – as she was taught to do by 4 the probation department – that Mr. Neal was on PRCS and conveyed that information to the 5 officers. That information was erroneous but the error was not knowable by Ms. Jones or any of 6 the officers involved in the search. Because Mr. Neal’s status was confirmed immediately before 7 the search with the dispatcher who was known to have access to the most up-to-date PRCS 8 information, the Defendants’ reliance on that information was objectively reasonable. 9 Defendants reasonably, but mistakenly believed that they did not violate clearly established law. 10 As a result, Defendants are entitled to qualified immunity with regard to the April 5, 2013 11 search. 12 As to the second search, Defendants executed a search warrant to search Mr. Neal’s 13 house on September 19, 2013. JSUF at ¶ 6. Plaintiffs now contend that Defendants “have not 14 established … that the warrant … was in fact issued by Judge C. Woodward” because it is not 15 certified or otherwise authenticated. Doc 39 at 6. Whether the warrant attached as Exhibit 11 in 16 support of Defendants’ motion for summary judgment is authentic is not dispositive. Defendants 17 have offered deposition testimony by Defendant Hightower that a search warrant to search the 18 Neal home was obtained based on a controlled drug buy from, wherein Mr. Neal sold a small 19 amount of rock cocaine to a police informant. Deposition of Jesse Hightower, Doc 38-8 20 (“Hightower Depo.”) at 14:9-15, 15:15-19:10. That warrant authorized the search of the Neal 21 house. Regardless of whether Exhibit 11 is authentic, there is undisputed evidence in the record 22 that law enforcement sought, obtained, and executed a warrant authorizing search of the Neal 23 house. 24 As earlier noted, qualified immunity protects government officials who act in a 25 reasonable manner. Ashcroft v. al-Kidd, 131 S.Ct. at 2074. “Where the alleged Fourth 26 Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral 27 magistrate has issued a warrant is the clearest indication that the officers acted in an objectively 28 11 1 reasonable manner or, as [the Supreme Court has] sometimes put it, in ‘objective good faith.’” 2 Messerschmidt v. Millender, --- U.S. ----, 132 S.Ct. 1235, 1245 (2012) (quoting United States v. 3 Leon, 468 U.S. 897, 922–923 (1984)). An exception exists, however, “if, on an objective basis, it 4 is obvious that no reasonably competent officer would have concluded that a warrant should 5 issue....” Malley v. Briggs, 475 U.S. 335, 341 (1986). Based on Defendant Hightower’s controlled buy, giving probable cause for issuance of a 6 7 warrant, the officers acted in reasonable good faith upon that warrant and are entitled to qualified 8 immunity. 9 2. Unlawful Search of Person 10 Planitiff Cordelia Neal contends that Defendant Morgan subjected her to an unreasonable 11 search when he performed a pat down search on her during the April search. Compl. at ¶ 21; but 12 see C. Neal Depo. at 29:2-21 (alleging that Defendant Morgan searched Mrs. Neal searched 13 during both the April and September searches) 10; contra Morgan Depo. at 38:25-39:9. Mrs. Neal 14 indicated that the pat down came about because she told the officers that she needed to use the 15 restroom. C.Neal Depo. at 32:18-22. Defendant Morgan then told Mrs. Neal that he had to pat 16 her down before he would permit her to reenter the house and use the restroom. C.Neal Depo. at 17 29:6-7. Mrs. Neal protested having Defendant Morgan conduct the search because he was male 18 and she was a female wearing only a nightgown and a robe. C.Neal Depo. at 31:22. Mrs. Neal 19 eventually permitted the search. She describes that Defendant Morgan required her to place her 20 hands on her walker, patted her down between her legs, under her shoulders, and under her 21 breasts, all using the front of his hands. C.Neal Depo. at 31:16-32:3. Defendant Morgan never 22 grabbed Mrs. Neal and the search took only “[a] few seconds.” C.Neal Depo. at 32:4-10. The manner in which the pat down was conducted (i.e., patting the outside of Mrs. Neal’s 23 24 clothing) does not appear unreasonable or inappropriate. However, even a reasonably conducted 25 search can violate the Fourth Amendment when no cause to perform the search exists. In this 26 case, the warrant – authentication issues aside – allowed for search of the person of James Neal, 27 28 10 Further muddying the waters, Mrs. Neal indicated that she sought to use the restroom after the K-9 unit exited her house. According to the evidence submitted, a K-9 unit was only present at the September search. 12 1 his home, and the surrounding yards, garages, outbuildings, et cetera. Doc. 38-15 at 16-18. The 2 warrant at issue did not authorize search of Mrs. Neal or her son. Nor have defendants submitted 3 any evidence that would tend to indicate that probable cause to search Mrs. Neal existed. 4 Even in the absence of probable cause, law enforcement is permitted under Terry v. Ohio, 5 392 U.S. 1, 21, 30 (1968) and its progeny, to conduct an investigatory stop and frisk of a suspect 6 provided that the officer has a reasonable suspicion, based on specific and articulable facts, that 7 the person to be detained is engaged in criminal activity. The Terry Court noted that “in 8 justifying the particular intrusion the police officer must be able to point to specific and 9 articulable facts which, taken together with rational inferences from those facts, reasonably 10 warrant that intrusion.” Id. at 21; see United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 11 2013). “The ‘narrow scope’ of the Terry exception only permits a frisk for weapons based on ‘a 12 reasonable belief or suspicion directed at the person to be frisked....’” United States v. I.E.V., 705 13 F.3d 430, 437 (9th Cir. 2012) (quoting Ybarra v. Illinois, 444 U.S. 85, 94 (1979)). 14 Defendants have presented no evidence to suggest that officers thought that Mrs. Neal 15 had committed any crime or that she was carrying any concealed weapon. In fact, waiting until 16 approximately an hour and a half into the search of the residence is complete inconsistent with 17 Defendants having any suspicion that Mrs. Neal was armed. 18 Although not asserted by Defendants, to the extent that the pat down may have been 19 premised on Defendants’ belief that Mrs. Neal was concealing or sought to destroy evidence, no 20 search was justified. “A frisk is not valid if it is a general exploratory search motivated out of a 21 desire ‘to prevent the disappearance or destruction of evidence of crime.’” United States v. 22 I.E.V., 705 F.3d 430, 433 (quoting Terry v. Ohio, 392 U.S. at 29). 23 Defendant Morgan is not entitled to qualified immunity as to this claim. A reasonable 24 officer under the circumstances would have known that a search without probable cause or 25 reasonable suspicion would violate Mrs. Neal’s Fourth Amendment right to be free from 26 unreasonable searches. 27 3. Unlawful Destruction of Personal Property 28 13 1 Plaintiffs contend that Defendants, in executing both searches, unnecessarily destroyed 2 Plaintiffs’ property in violation of the Fourth Amendment. However, Defendants correctly note 3 that Plaintiffs’ complaint is devoid of any allegations that Defendants’ destroyed Plaintiffs’ 4 property during either search of the Neal home. As explained earlier, “[a]n addition of new 5 issues during the pendency of a summary judgment motion can be treated as a motion for leave 6 to amend the complaint.” Kaplan, 49 F.3d at 1370 (citation omitted). This Court will grant leave 7 to amend, based on the evidence submitted, if such amendment is not futile, See Lopez, 203 F.3d 8 at 1130 (citations omitted), and it does not prejudice the Defendants, Eminence Capital, LLC, 9 316 F.3d at 1052. 10 The Fourth Amendment protects against unreasonable seizure or destruction of property. 11 Lavan v. City of Los Angeles, 693 F.3d 1022, 1027-1028 (9th Cir. 2012); see San Jose Charter of 12 Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005) (“Hells 13 Angels”) (“[T]he destruction of property by state officials poses as much of a threat, if not more, 14 to people's right to be ‘secure ... in their effects' as does the physical taking of them.”) (citation 15 omitted).11 Any meaningful governmental interference with a possessory interest in property 16 triggers the reasonableness requirement. Id. at 1028, 1030 (quoting United States v. Jacobsen, 17 446 U.S. 109, 113 (1984). Courts “look to the totality of the circumstances to determine whether 18 the destruction of property was reasonably necessary to effectuate the performance of the law 19 enforcement officer’s duties.” Hells Angels, 402 F.3d at 975. “A seizure becomes unlawful 20 when it is more intrusive than necessary.” Id. (internal quotation marks omitted); see United 21 States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) (“[W]hile the destruction of property in 22 carrying out a search is not favored, it does not necessarily violate the [F]ourth [A]mendment.”) 23 (citation omitted). To determine the reasonability of a seizure the court balances “the nature and 24 quality of the intrusion on [plaintiffs’] Fourth Amendment interests against the countervailing 25 governmental interests at stake.” Hells Angels, 402 F.3d at 975 (internal quotation marks 26 27 28 11 The Ninth Circuit has alternatively considered allegations of destruction of property during the execution of a search warrant as an unreasonable search rather than a seizure. Liston v. County of Riverside, 120 F.3d 965, 979 (9th Cir. 1997); see United States v. Ankeny, 502 F.3d 829, 837-838 (9th Cir. 2007). Regardless of the nomenclature, the standard is the same. 14 1 omitted). Because this litigation is now at the summary judgment stage, this Court must view the 2 facts in the light most favorable to the Plaintiffs in determining whether damaging Plaintiffs’ 3 property was reasonably necessary to effectuate the search. 4 It appears that the parties dispute the extent of the damages to Plaintiffs’ property. 5 Specifically, Plaintiffs contend that Defendants 6 7 8 9 emptied containers of foodstuffs including flour, sugar and cereal in the kitchen, dumping them and making them unusable. They dumped items and clothing out of chests of drawers, destroyed pillows, broke pictures that had been hanging on walls, destroyed clothing as well as the Plaintiffs’ son’s toys, broke dishes and damage furniture. They also destroyed a brand new clothes washer and dryer as well as other appliances. They also damaged electronic devices and light fixtures. 10 Doc. 39 at 7; see C.Neal Depo. at 47:12-53:17. Based on Mrs. Neal’s testimony, it also appears 11 that officers forced open her fire safe, destroyed several of her son’s video game systems and a 12 set of walkie-talkies, disassembled both of Mrs. Neal’s police scanners, broke the glass on and 13 pried open the top of her electric stove. C.Neal Depo at 50:12-52:2. Defendants claim that the 14 damage now claimed is inconsistent with the list of items submitted with the government torts 15 claim submitted regarding the September 19, 2013 search. See Doc. 38-17 (providing a laundry 16 list of damaged and destroyed items). This Court disagrees; the list of items damaged is largely 17 consistent with the Mrs. Neal’s deposition testimony. Further, Defendants contend that the 18 damage was minimal by referring the Court to Defendant Hightower’s account of less severe 19 damage: 20 21 22 23 24 25 26 27 Q. Tell me about the damage. A. From what I saw when I walked through, I saw a broken picture frame. I know the washer had been bent. The back of the washer had been bent back so somebody could look inside, and then I saw some type of air vent or I guess you call it a register where the air comes. I guess the vent was partially bent. Q. Any other damage? A. Not that I saw. Q. Were items taken out of closets? A. I would hope so. Q. And were they placed back or just thrown on the ground? A. That, I don’t know. Q. And how about were items taken out of like drawers and cabinets? A. I would assume yes. 28 15 1 2 3 4 Q. And do you recall if those were replaced? A. I don’t know. *** Q. Were items taken out of the kitchen cabinets? A. Probably. Q. Okay. Do you recall any broken kitchen items? A. No. 5 Hightower Depo. at 27:19-28:11, 29:3-7. However, the photographs submitted along with 6 Defendant Hightower’s report – although presented only in thumbnail size and only in black and 7 white – tend to indicate that the damage to the Neal home may have been more extensive than 8 Defendant Hightower remembered. Moreover, as Defendants have noted, “Defendant Hightower 9 was not involved in the … incidents of April 5, 2013,” DSSUF at ¶8, therefore he could not have 10 witnessed any of the damage to the Neal home arising from that incident. Because the extent of 11 the damage is in dispute, the Court will assume all of the damage that Mrs. Neal alleges in 12 determining whether the property damage was more than reasonably necessary to effectuate the 13 search. 14 Narcotics, by their nature, are incredibly easy to hide and can be hidden virtually 15 anywhere. See Vale v. Louisana, 399 U.S. 30, 34 (1970). It is not unreasonable for law 16 enforcement officers to believe that a search may need to be thorough to find evidence of 17 narcotic sales. See, e.g., California v. Carney, 471 U.S. 386, 388 (1985) (drugs found in 18 cupboards and refrigerator); United State v. Washington, 2012 WL 3638227, *7 (E.D. Cal. Aug. 19 22, 2012) (noting that drug dealers often hide contraband throughout their residences); Davis v. 20 Cavazos, 2012 WL 3237443, *1 (S.D. Cal. Aug. 7, 2012) (drugs and proceeds from sale kept in 21 safe) see also Jackson ex rel. Jackson v. Suffolk County, ---F.3d----, 2015 WL 728249, *9 (E.D. 22 N.Y. 2015) (“The reasonableness of the damage must be evaluated with reference to the target of 23 the search, such as a more invasive contraband search.”) That said, simply because officers are 24 conducting a – necessarily broad – narcotics search does not authorize them to ransack a home 25 and indiscriminately destroy its contents. See United States v. Philips, 588 F.3d 218, 223 (4th 26 Cir. 2009) (“While officers are afforded some margin of error in conducting a search, that 27 tolerance of imperfection does not give officers “free rein to ransack.”) 28 16 1 Defendants have submitted no evidence regarding their purpose in disassembling 2 Plaintiff’s washing machine and dryer, cutting holes in their sofas and pillows, or pulling 3 clothing from drawers. Although a jury could find that those activities were an appropriate 4 means of effectuating a the search, it could just as easily find that Defendants’ conduct were 5 unnecessary to conduct the search. Further, it is unclear to this Court how disassembly of video 6 game systems and police scanners, breaking of picture frames (during both searches), or forcibly 7 opening a safe despite Plaintiff offering the key, were reasonably necessary to conduct the 8 search. Accordingly, viewing the evidence presented in the light most favorable to Plaintiff, the 9 Court cannot determine that a Fourth Amendment violation for unlawful seizure did not take 10 place based on Defendants’ conduct in unnecessarily destroying or damaging property during the 11 search. Cf. Jackson ex rel. Jackson, 2015 WL 728249, *9-10 (denying summary judgment on a 12 similar claim of unnecessarily destroyed property where Plaintiff presented photographs 13 depicting “flipped and cut furniture, a disassembled coat rack, property strewn across the floor of 14 the basement, damage to ceramic bowls and a bird feeder stand, damage to picture frames, a 15 scratched end table, and marks to backs of leather furniture.”) 16 The finding that a Fourth Amendment claim may exist is not the end of the inquiry; 17 Defendants may be entitled to qualified immunity. Clearly established Ninth Circuit law 18 provides that “relatively minor destruction of property in executing a search warrant” is not 19 unreasonable for purpose of the Fourth Amendment. Pacific Marine Center, Inc. v. Silva, 553 20 Fed.Appx. 671, 674 (9th Cir. 2014) (citing United States v. Becker, 929 F.2d 442, 446-447 (9th 21 Cir. 1991); United States v. Offices Known as 50 State Distribuiting Co., 708 F.2d 1371, 1376 22 (9th Cir. 1983)). The Ninth Circuit has found law enforcement destruction of property to be 23 reasonable where officers: ripped wires from a surveillance system before seizing that device and 24 threw files from filing cabinets despite the owner’s offer to find what the officers sought, Silva, 25 553 Fed. Appx. at 1282; and destroyed a freshly laid concrete slab to search for controlled 26 substances, Becker, 929 F.2d 442, 446-447. However, where items that were clearly not the 27 subject of the search or even related to the search have been destroyed in a narcotics related 28 17 1 searches, courts in this circuit have refused qualified immunity. Kephart v. City of Bakersfield, 2 2005 WL 1704463, *22 (E.D. Cal. 2005) (denying qualified immunity where officers destroyed 3 such as baseball cards, collector planes, photographs, and CDs without explanation during a drug 4 search); see also Hells Angels, 402. F.3d at 974 (denying qualified immunity where officers cut a 5 mailbox off its post, jack-hammered a sidewalk, and broke a refrigerator, all for the purpose of 6 collecting Hells Angels indicia); Miale v. Tuolumne County Sheriff’s Dept., 2009 WL 3073922, 7 *5 (E.D. Cal. 2009) (denying qualified immunity where the plaintiff alleged that officers 8 destroyed unlocked doors and one officer stole his dog during a weapon and drug search). 9 In this instance, there is sufficient evidence to suggest that law enforcement officers 10 destroyed property unrelated to the purpose of the search – discovering evidence of narcotic 11 sales. A reasonable officer in that situation would know that his conduct was violative of 12 Plaintiffs’ rights. As a result, allowing amendment would not be futile. Further, because 13 Defendants already deposed Mrs. Neal regarding the damage to her home, and presumably do 14 not need to conduct any further discovery on the issue, they will not be prejudiced by allowing 15 amendment. Accordingly, Plaintiffs will be granted leave to amend their complaint to assert a 16 claim for unlawful seizure in violation of the Fourth Amendment. 17 4. Unlawful Arrest of Mr. Neal 18 After law enforcement officers discovered a controlled substance during the April 5, 19 2013 search, they placed Mr. Neal under arrest. Plaintiffs appear to have conflated a state law 20 claim for false arrest and a Fourth Amendment claim pursuant to § 1983 (or possibly Plaintiffs 21 intended not to contest summary judgment, or didn’t intend to allege a § 1983 unlawful arrest 22 claim in the first instance). Assuming that Plaintiffs oppose summary judgment as to the § 1983 23 claim for arrest in violation of the Fourth Amendment, the Court rejects that position. 24 In the criminal context, the fruit of the poisonous tree doctrine, also known as the 25 exclusionary rule, generally operates to exclude evidence obtained in violation of the Fourth 26 Amendment. See Wong Sun v. United States, 371 U.S. 471, 488 (1963). In the Section 1983 27 context, district courts in the Ninth Circuit – including this Court – have uniformly held that the 28 18 1 exclusionary rule does not apply. Fowler v. California Highway Patrol, 2014 WL 1665046, *10 2 (N.D. Cal. Apr. 25, 2014) (citing, inter alia, Smith v. Kelly, 2013 WL 5770337, *9-14 (W.D. 3 Wash. Oct. 24, 2013) (collecting cases rejecting the application of the exclusionary rule in the 4 Section 1983 context)); Willis v. Mullins, 2014 WL 1643578, *3 (E.D. Cal. 2014). Accordingly, 5 evidence obtained in violation of the Fourth Amendment is not excluded from consideration in a 6 Section 1983 action when determining whether the officer had probable cause for an arrest. See 7 Lingo v. City of Salem, 2014 WL 1347468, *9 (D. Or. Apr. 4, 2014). As a result, despite fact that 8 the initial search of Plaintiffs’ residence was in violation of the Fourth Amendment, the evidence 9 of the commission of a crime obtained as a result of the unlawful search operated as probable 10 cause for an arrest. 11 Summary judgment is granted for Defendants as to this issue. 12 C. Plaintiffs’ State Law Claims 13 Mr. Neal has alleged two state law causes of action: (1) false imprisonment / false arrest 14 and (2) abuse of process. Summary judgment as to both claims will be granted in favor of 15 Defendants. 16 1. False Imprisonment / False Arrest 17 Plaintiff’s Second Cause of action “for false imprisonment” appears to allege that 18 Defendants are responsible for Mr. Neal’s arrest and imprisonment because officers knew that 19 there was no probable cause to arrest because they had “no objective belief that he had 20 committed a crime.” Compl. at ¶29.12 Defendants contend that they are entitled to summary 21 judgment on this claim because probable cause to arrest existed at the time of arrest. 22 California Penal Code Section 847(b)(1) provides that a law enforcement officer acting 23 within the scope of his or her authority is immunity from civil suit for false arrest “where the 24 arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe 25 the arrest was lawful.” As discussed above, law enforcement’s discovery of the controlled 26 12 In Plaintiffs’ opposition they contend that a question of fact exists as to whether law enforcement planted the 27 controlled substance located during the April 5, 2013 search. Plaintiffs make that argument for the first time in their 28 opposition and provide no evidence to substantiate it. This unsupported argument is rejected. 19 1 substance during the search was sufficient to establish probable cause to arrest Mr. Neal. 2 Moreover, even if the lawfulness of the initial search was at issue – which it is not in this claim – 3 at the time of the search, law enforcement had conducted multiple – albeit erroneous – checks of 4 Plaintiff’s PRCS status with positive results. Defendants had reasonable cause to believe that the 5 arrest was lawful. Defendants are entitled to statutory immunity under Section 847(b)(1). 6 2. Abuse of Process 7 Plaintiffs third cause of action alleges “abuse of process against all defendants.” Compl. 8 at p. 8. Defendants moved for summary judgment because (1) Defendants initiated and served no 9 process on Plaintiffs, (2) because, even if they had, Defendants are immunized against such a 10 claim, and (3) because Plaintiffs failed to allege this claim in their Government Claims Act 11 claims. Plaintiffs did not oppose Defendant’s motion as to this claim. Accordingly, Defendants’ 12 motion is granted; Plaintiffs’ abuse of process claim is adjudicated in Defendants’ favor. 13 14 V. Order 15 Based on the foregoing, IT IS HEREBY ORDERED THAT: 16 1. Defendants’ motion for summary judgment as to Plaintiffs’ first cause of action for 17 violation of the Fourth Amendment, brought pursuant to § 1983 18 a. is GRANTED and that cause is adjudicated in favor of Defendants insofar as 19 it is based upon any alleged policy of violation of the Fourth Amendment by 20 the City, either search of the Neal home, or Mr. Neal’s arrest and 21 imprisonment; 22 23 24 25 26 27 b. is DENIED insofar as it is based upon the destruction of property in the Neal home during either search, or the unlawful search of Mrs. Neal; 2. Defendants’ motion for summary judgment as to Plaintiffs’ second cause of action for false arrest or false imprisonment is GRANTED; 3. Defendants’ motion for summary judgment as to Plaintiffs’ third cause of action for abuse of process is GRANTED; 28 20 1 4. Plaintiffs are granted leave to amend their complaint to allege that Defendants’ 2 destroyed Plaintiffs’ personal property during the search of the Neal home in 3 violation of the Fourth Amendment; 4 a. Any such amendment must be made with 10 days of the date of this order. 5 Failure to file an amended complaint will result in that claim being 6 adjudicated in favor of Defendants and Plaintiffs’ being permitted to proceed 7 only as to Mrs. Neal’s claim that a pat down search was performed upon her 8 in violation of the Fourth Amendment; 9 5. In light of the Court’s authorization for Plaintiff to file an amended complaint, the 10 pretrial conference presently scheduled for July 29, 2015 is hereby rescheduled to 11 August 12, 2015 at 10:00 a.m. Further, the Court will hold a telephonic status 12 conference with counsel for both parties on July 22, 2015 at 2:00 p.m. The parties 13 may contact courtroom deputy Renee Gaumnitz at (559)499-5660 for instructions on 14 placing the July 22 status conference call. During the July 22 conference call the 15 parties should be prepared to apprise the Court of how each wishes to proceed in this 16 matter. 17 18 IT IS SO ORDERED. 19 Dated: July 10, 2015 SENIOR DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 21

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