Dagdagan v. City of Vallejo et al
Filing
105
ORDER signed by Judge Garland E. Burrell, Jr on 11/18/11: Defendants' motion for partial summary judgment on Plaintiff's Fourth Amendment claim against Detective Melville and Plaintiff's Monell claims is granted; Plaintiff's substantive due process claim against Defendants Wentz and Boyd is dismissed; and Plaintiff's motions are denied. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARCARIO BELEN DAGDAGAN,
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Plaintiff,
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v.
CITY OF VALLEJO; VALLEJO OFFICER
JOHN BOYD (ID#589); VALLEJO
OFFICER J. WENTZ (ID#524);
VALLEJO OFFICER JAMES MELVILLE
(ID#559),
Defendants.
________________________________
Plaintiff
17
seeks
partial
2:08-cv-00922-GEB-KJN
ORDER
summary
judgment
on
his
Fourth
18
Amendment unlawful search claim (“Fourth Amendment claim”) alleged
19
against Defendant Melville, which is based on allegations that Melville
20
prepared affidavits for an unlawful search warrant and conducted an
21
unlawful search. Melville cross-moves for summary judgment on this
22
claim.
23
Further,
Defendants
Fourteenth
seek
Amendment
partial
24
Plaintiff’s
25
(“substantive due process claim”) alleged against Defendants Wentz and
26
Boyd, arguing “there is no evidence of deliberate indifference to
27
[Plaintiff’s] medical needs.” (Defs.’ Mot. 2:21.) Plaintiff failed to
28
respond to this portion of Defendants’ motion in his opposition brief,
1
substantive
summary judgment on
due
process
claim
1
and stated at the October 24, 2011 hearing on the motions that he
2
abandons this claim. Therefore, Plaintiff’s substantive due process
3
claim against Wentz and Boyd is dismissed.
4
Defendants also seek summary judgment on Plaintiff’s Monell
5
claims against the City of Vallejo (the “City”), arguing “there is no
6
evidence of unconstitutional policies, nor that [the City] engaged in a
7
custom or practice of condoning or ratifying police use of unlawful
8
entries/arrests/excessive
9
deliberate indifference required to impute liability for constitutional
10
violations.” Id. 2:22-26. Plaintiff opposes the City’s motion on his
11
Monell claims, arguing he can show that “policymakers . . . ratified the
12
illegal conduct . . . [and] plaintiff’s injuries were due to [a]
13
municipal custom and practice of inadequate training and supervision.”
14
(Pl.’s Opp’n 2:7-10.) Alternatively, Plaintiff requests a continuance in
15
order to obtain an expert report, which he argues “will provide further
16
evidence of the City’s deliberate indifference to the illegal conduct of
17
its employees.” Id. 16:25-28.
18
I.
force
against
citizens
to
the
degree
of
PLAINTIFF’S RULE 56(d) CONTINUANCE REQUEST
19
Plaintiff’s continuance request is governed by Federal Rule of
20
Civil Procedure (“Rule”) 56(d), which prescribes: “If a nonmovant shows
21
by affidavit or declaration that, for specified reasons, it cannot
22
present facts essential to justify its opposition, the court may:
23
(1) defer considering the motion or deny it; (2) allow time to obtain
24
affidavits or declarations or to take discovery; or (3) issue any other
25
appropriate order.” Therefore, to obtain a continuance under Rule 56(d),
26
Plaintiff “must show (1) that [he has] set forth in affidavit form the
27
specific facts that [he] hope[s] to elicit from further discovery,
28
(2) that the facts sought exist, and (3) that these sought-after facts
2
1
are ‘essential’ to resist the summary judgment motion.” State of Cal.,
2
on Behalf of Cal. Dept. of Toxic Substances Control v. Campbell, 138
3
F.3d 772, 779 (9th Cir. 1998). Moreover, Plaintiff “must make clear what
4
information is sought and how it would preclude summary judgment.”
5
Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Here, Plaintiff has
6
neither identified the specific facts that he hopes to elicit from the
7
referenced expert report, nor made clear how such information would
8
preclude summary judgment. Therefore, Plaintiff’s continuance motion
9
under Rule 56(d) is denied.
10
II. LEGAL STANDARD
11
A party seeking summary judgment bears the initial burden of
12
demonstrating the absence of a genuine issue of material fact for trial.
13
Celotex
14
‘material’ when, under the governing substantive law, it could affect
15
the outcome of the case.” Thrifty Oil Co. v. Bank of Am. Nat. Trust &
16
Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.
17
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material
18
fact is “genuine” when “the evidence is such that a reasonable jury
19
could return a verdict for the nonmoving party.” Id.
Corp.
v.
Catrett,
477
U.S.
317,
323
(1986).
“A
fact
is
20
When deciding cross-motions for summary judgment, each motion
21
is evaluated on its own merits, “taking care in each instance to draw
22
all reasonable inferences against the party whose motion is under
23
consideration.” B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587,
24
592 (6th Cir. 2001); Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir.
25
2010) (stating all reasonable inferences that can be drawn from the
26
evidence “must be drawn in favor of the non-moving party”).
27
28
When the defendant is the moving party and is seeking summary
judgment on one or more of a plaintiff’s claims,
3
1
[the defendant] has both the initial burden of
production and the ultimate burden of persuasion on
[the motion]. In order to carry its burden of
production, the [defendant] must either produce
evidence negating an essential element of the
[plaintiff’s claim] or show that the [plaintiff]
does not have enough evidence of an essential
element to carry its ultimate burden of persuasion
at trial. In order to carry its ultimate burden of
persuasion on the motion, the [defendant] must
persuade the court that there is no genuine issue
of material fact.
2
3
4
5
6
7
8
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,
9
1102 (9th Cir. 2000) (citations omitted). If the moving party satisfies
10
its initial burden, “the non-moving party must set forth, by affidavit
11
or as otherwise provided in Rule 56, specific facts showing that there
12
is a genuine issue for trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
13
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and
14
internal quotation marks omitted). The “non-moving plaintiff cannot rest
15
upon the mere allegations or denials of the adverse party’s pleading but
16
must instead produce evidence that sets forth specific facts showing
17
that there is a genuine issue for trial.” Estate of Tucker ex rel.
18
Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008)
19
(citation and internal quotation marks omitted).
20
Further, Local Rule 260(b) requires:
21
Any party opposing a motion for summary judgment or
summary adjudication [must] reproduce the itemized
facts in the [moving party’s] Statement of
Undisputed Facts and admit those facts that are
undisputed and deny those that are disputed,
including with each denial a citation to the
particular portions of any pleading, affidavit,
deposition, interrogatory answer, admission, or
other document relied upon in support of that
denial.
22
23
24
25
26
27
If
28
supported] facts identified in the [movant’s] statement of undisputed
the
nonmovant
does
not
“specifically
4
.
.
.
[controvert
duly
1
facts,” the nonmovant “is deemed to have admitted the validity of the
2
facts contained in the [movant’s] statement.” Beard v. Banks, 548 U.S.
3
521, 527 (2006).
4
Because a district court has no independent duty to
scour the record in search of a genuine issue of
triable fact, and may rely on the nonmoving party
to identify with reasonable particularity the
evidence that precludes summary judgment, . . . the
district court . . . [is] under no obligation to
undertake a cumbersome review of the record on the
[nonmoving party’s] behalf.
5
6
7
8
9
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010)
10
(citation and internal quotation marks omitted).
11
III. UNCONTROVERTED FACTS
12
On June 2, 2007, “Vallejo Police Officers Wentz and Boyd were
13
dispatched to respond to [a] call for service” placed by Gina Kearney,
14
who had reported that Plaintiff assaulted her. (Defs.’ Statement of
15
Undisputed Material Facts (“SUMF”) ¶¶ 2-3.) Subsequently, Wentz and Boyd
16
entered Plaintiff’s residence, where they found Plaintiff “in the
17
bedroom lying on a bed.” (Pl.’s SUMF ¶ 1.) Wentz and Boyd engaged in a
18
verbal exchange with Plaintiff, during which Plaintiff was placed under
19
arrest and tased twice. Id. ¶¶ 2-7. “After handcuffing [P]laintiff,
20
Officers Wentz and Boyd brought [P]laintiff to the living room of the
21
apartment.” Id. ¶ 8. When Sergeant Miller, a Vallejo Police Department
22
supervisor,
23
complaining that the officers had broken his neck.” Id. ¶ 23.
24
“arrived
soon
after
the
incident[,
Plaintiff]
was
“Several days after Vallejo police officers arrested Plaintiff
25
Dagdagan
26
obtained a Search Warrant . . . .” Id. ¶ 121. “Detective Melville
27
decided to seek a search warrant because he believed he needed to
28
collect the chair that was used in the alleged assault.” Id. ¶ 122.
in
his
apartment,
Vallejo
5
Police
Detective
Jim
Melville
1
Melville “drafted a probable cause [affidavit (the ‘Affidavit’)] in
2
support [of the search warrant] and obtained a search warrant for lawn
3
chairs purportedly used between Kearney and [P]laintiff, as well as
4
evidence of dominion and control over the premises.” (Defs.’ SUMF ¶ 34.)
5
Melville attests in the Affidavit “that the alleged victim told the
6
officers on the scene that Mr. Dagdagan ‘resided at 421 Louisiana
7
Street[,]’” “that ‘The true address of Dagdagan is 423 Louisiana APT
8
#B[,]’” and “that the apartment manager, Beverly Good, told him that
9
‘Dagdagan’s address is 423 Louisiana Apartment B’ and that Dagdagan had
10
‘been living in that apartment for approximately three weeks.’” (Pl.’s
11
SUMF ¶¶ 127-29.) Melville testified that “it was a common practice . . .
12
to establish residency of the apartment which I’m going to search.” Id.
13
¶ 136.
14
“The Search Warrant, issued from Solano County Superior Court
15
on June 7, 2009, authorized a search for a green plastic chair— . . .
16
the alleged
17
authorized a search for the following personal papers:
18
means of committing a felony.” Id. ¶ 123. The warrant also
22
Any items tending to establish the identity of
persons who have dominion and control of the
location, premises, automobile, or items to be
seized, including delivered mail, whether inside
the location or in the mail box/s, bills, utility
bills, telephone bills, miscellaneous addressed
mail, personal letters, personal identification,
purchase receipts, rent receipts, sales receipts,
tax statements, payroll check stubs[.]
23
Id. ¶ 124. “When Detective Melville executed the search warrant, he
24
admitted he looked through the whole apartment looking for evidence of
25
identification.” Id. ¶ 139. “Detective Melville also looked for mail.”
26
Id. ¶ 141. “Detective Melville found Mr. Dagdagan’s driver’s license
27
next to his bed mattress.” Id. ¶ 140.
19
20
21
28
“Sgt. Miller reported the incident to the [Internal Affairs
6
1
Division
2
criminal investigations unit were assigned to investigate the cause and
3
origin of plaintiff’s injury.” (Pl.’s SUMF ¶ 73.) “The Department
4
maintains an . . . IAD . . . which investigates complaints of improper
5
conduct by its officers.” Id. ¶ 43. “The IAD is supervised by a sergeant
6
who reports to a lieutenant who commands the Professional Standards
7
Division.” Id. ¶ 44. “The lieutenant who commands the Professional
8
Standards Division reports directly to the Chief of Police.” Id. ¶ 45.
(‘IAD’)].”
9
(Defs.’
SUMF
IV.
¶
31.)
“Two
detectives
from
the
DISCUSSION
10
Each of Plaintiff’s claims at issue in these motions is
11
alleged under 42 U.S.C. § 1983. (First Amended Complaint ¶¶ 27-31.) “To
12
state a claim for relief in an action brought under § 1983, [Plaintiff]
13
must establish that [he was] deprived of a right secured by the
14
Constitution or laws of the United States[.]” American Mfrs. Mut. Ins.
15
Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “In the Ninth Circuit, the
16
burden of proof in § 1983 [claims] remains always with the plaintiff.”
17
Jordan v. Herrera, 224 Fed. Appx. 657, 657 (9th Cir. 2007); see also
18
Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (“In a civil case
19
under [§ 1983], however, the plaintiff carries the ultimate burden of
20
establishing each element of his or her claim.”).
21
A. Fourth Amendment Claims
22
Melville and Plaintiff cross-move for summary judgment on
23
Plaintiff’s Fourth Amendment unlawful search claims. Defendant argues,
24
inter alia, “a search warrant was lawfully obtained.” (Defs.’ Mot.
25
2:20.)
26
authorization . . . is facially overbroad for two reasons: (1) the
27
officers’ investigation had already established that Dagdagan lived in
28
the apartment that was the subject of the search . . . and (2) there was
Plaintiff
counters,
arguing
7
“the
subject
search
warrant’s
1
no probable cause that ‘dominion and control’ of the premises was
2
related to the alleged criminal activity being investigated.” (Pl.’s
3
Opp’n 20:22-27.) Melville rejoins, arguing “it is reasonable under the
4
Fourth Amendment to conduct searches for [the] purpose of obtaining
5
evidence that would aid in a conviction.” (Defs.’ Reply 3:15-16.)
6
“The Supreme Court has recognized that a search or seizure
7
pursuant
8
constitutional rights of the subject of that search at the time of the
9
unreasonable governmental intrusion.” Millender v. Cnty. of Los Angeles,
10
620 F.3d 1016, 1024 (9th Cir. 2010) (internal quotation marks and
11
citations omitted). “Even when only a portion of a search warrant is
12
invalid, the subject of the search suffers a constitutional violation.”
13
Id. “[T]he Fourth Amendment [requires] specificity, which has two
14
aspects, particularity and breadth. . . . Breadth deals with the
15
requirement that the scope of the warrant be limited by the probable
16
cause on which the warrant is based.” Id. (internal quotation marks and
17
citations omitted). “A search warrant that is not issued ‘upon probable
18
cause’
19
probability that contraband or evidence of a crime will be found in a
20
particular place.” Id. (internal quotation marks and citations omitted).
21
Plaintiff argues the search warrant was overbroad since “the
22
officers’ investigation had already established that Dagdagan lived in
23
the apartment that was the subject of the search.” (Pl.’s Opp’n 20:25.)
24
In support of his argument, Plaintiff produces Melville’s Affidavit and
25
deposition testimony. In the Affidavit, Melville attests “that the
26
alleged victim told the officers on the scene that Mr. Dagdagan ‘resided
27
at 421 Louisiana Street[,]’” “that ‘The true address of Dagdagan is 423
28
Louisiana APT #B[,]’” and “that the apartment manager, Beverly Good,
is
to
an
invalid
invalid.
warrant
Probable
constitutes
cause
8
exists
an
when
invasion
there
is
of
a
the
fair
1
told him that ‘Dagdagan’s address is 423 Louisiana Apartment B’ and that
2
Dagdagan had ‘been living in that apartment for approximately three
3
weeks.’”
4
Affidavit:
5
residence . . . [and] contacted [Plaintiff] in the back bedroom. . . .
6
After the [second taser strike, Plaintiff] became more submissive and
7
was taken into custody.” (Boley Decl., Ex. N RULE 26083-084.) Melville
8
also gave deposition testimony that “in [his] mind . . . there [was no]
9
question about who lived there[.]” Id. Ex. K 102:11-13.
(Pl.’s
SUMF
“Officer
¶¶
127-29.)
Wentz
and
Melville
Officer
Boyd
further
went
attests
to
the
in
the
upstairs
10
Further, Plaintiff argues the search warrant was overbroad
11
since “there was no probable cause that ‘dominion and control’ of the
12
premises
13
investigated.” (Pl.’s Opp’n 20:26-27.) Specifically, Plaintiff argues:
14
Melville’s affidavit shows the police sought to
seize a “green plastic chair” that was allegedly
used in the assault. The only evidence regarding
the green chair being used in the assault was
[Melville] attesting that the apartment manager
told him that she saw “Dagdagan and Kearney hitting
each other with green plastic chairs.” Given this
eye-witness information about use of the chair in
the alleged assault, whether or not [Plaintiff] had
“dominion and control” of the premises where the
assault allegedly occurred was superfluous to the
criminal activity being investigated.
15
16
17
18
19
was
related
to
the
alleged
criminal
activity
being
20
21
Id. 21:18-24 (internal citations omitted). In support of his argument,
22
Plaintiff relies on Melville’s Affidavit, in which he attests “[Good]
23
said she saw Kearney hit Dagdagan in the head with the green plastic
24
chair approximately four times.” (Boley Decl., Ex. N RULE 26084.)
25
Melville replies, arguing:
26
it is reasonable under the Fourth Amendment to
conduct searches for [the] purpose of obtaining
evidence that would aid in a conviction. Indeed,
California Penal Code 1524(a)(4) authorizes that a
search warrant may issue to search for “any item or
constitute any evidence that tends to show a felony
27
28
9
1
has been committed, or tends to show that
particular person has committed a felony.”
a
2
3
(Defs.’ Reply 3:15-19 (internal citations omitted.)) Melville also
4
argues he “understands Plaintiff lived there[, but this] is not the same
5
as exercising dominion and control.” (Defs.’ Mot. 7:12-14.)
6
Even when drawing all reasonable inferences in favor of
7
Plaintiff, there is no genuine issue of material fact for trial since
8
“it is reasonable, within the terms of the Fourth Amendment, to conduct
9
otherwise permissible searches for the purpose of obtaining evidence
10
which would aid in . . . convicting [a suspect of a] crim[e.]” Warden,
11
Md. Penitentiary v. Hayden, 387 U.S. 294, 306 (1967); cf. United States
12
v. Alexander, 761 F.2d 1294, 1302 (9th Cir. 1985) (“[A] warrant that
13
authorized a search for articles tending to establish the identity of
14
the persons in control of the premises was sufficiently particular.”)
15
(internal quotation marks omitted).
16
Further,
Plaintiff
argues
“Melville’s
search
through
17 [Plaintiff’s] apartment for identifying documents is just the sort of
18 exploratory search our Framers sought to prevent.” (Pl.’s Opp’n 18:2119 22.) However, “[i]t is axiomatic that if a warrant sufficiently describes
20 the premises to be searched, this will justify a search of the personal
21 effects therein belonging to the person occupying the premises if those
22 effects might contain the items described in the warrant.” U.S. v. Gomez23 Soto, 723 F.2d 649, 654 (9th Cir. 1984). Here, it is uncontroverted that
24 Melville “admitted that he looked through the whole apartment looking for
25 evidence
of
identification[,]”
“looked
for
mail[,]”
and
“found
26 [Plaintiff’s] driver’s license next to his bed mattress.” (Pl.’s SUMF ¶¶
27 139-41.) Further, each of these items is described in the language of the
28 search warrant:
10
1
Any items tending to establish the identity of
persons who have dominion and control of the
location, premises, automobile, or items to be
seized, including delivered mail, whether inside
the location or in the mail box/s, bills, utility
bills, telephone bills, miscellaneous addressed
mail, personal letters, personal identification,
purchase receipts, rent receipts, sales receipts,
tax statements, payroll check stubs[.]
2
3
4
5
6 (Boley Decl., Ex. N RULE 26079-080.) Since Melville searched only for
7 items enumerated in the search warrant, the search was lawful. See
8 Alexander, 761 F.2d at 1302 (“The search must be one directed in good
9 faith toward the objects specified in the warrant . . . .”). Therefore,
10 Defendants’ motion for partial summary judgment on Plaintiff’s Fourth
11 Amendment claim against Melville is granted, and Plaintiff’s motions are
12 denied.
13
14
B. Monell Claims
The City argues it is entitled to partial summary judgment on
15 Plaintiff’s Monell claims since “there is no evidence of unconstitutional
16 policies, nor that [the City] engaged in a custom or practice of
17 condoning or ratifying police use of unlawful entries/arrests/excessive
18 force against citizens to the degree of deliberate indifference required
19 to impute liability for constitutional violations.” (Defs.’ Mot. 2:2220 26.) The City’s argument is sufficient to satisfy its “initial burden of
21 establishing the absence of a genuine issue of material fact” since it
22 “show[s]—that is, point[s] out to the district court—that there is an
23 absence of evidence to support the nonmoving party’s case[.]” Fairbank
24 v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (internal
25 citations omitted). Therefore, Plaintiff must “go beyond the pleadings
26 and identify facts which show a genuine issue for trial.” Id. (internal
27 citations omitted).
28
Plaintiff counters, arguing he can show “the City ratified the
11
1 unconstitutional
conduct
of
Defendants
Wentz
and
Boyd”
and
that
2 “[P]laintiff’s injuries were due to municipal custom and practice of
3 inadequate training and supervision.” (Pl.’s
Opp’n 11:19, 2:7-10.)
4 Further, Plaintiff makes the conclusory assertion that “the violations
5 of Plaintiff’s rights were due to customs and practices of the City.” Id.
6 15:9. However, this argument appears to be subsumed in Plaintiff’s
7 failure to train and supervise claim, and Plaintiff does not specify to
8 which custom or policy he is referring. In its reply brief, the City
9 argues “Plaintiff cannot establish that the policies are unconstitutional
10 or
were
the
11 violation[,
moving
and]
force
Plaintiff
behind
for
any
the
purported
first
time
unconstitutional
argues
the
final
12 policymaker, who is not a defendant, ratified the alleged respective
13 conduct.” (Defs.’ Reply 4:21-24.)
14
15 persons
Under the Monell doctrine, “[m]unicipalities are considered
under
42
U.S.C.
§
1983
and
thus
may
be
liable
for
a
16 constitutional deprivation.” Waggy v. Spokane Cnty. Washington, 594 F.3d
17 707, 713 (9th Cir. 2010) (internal quotation marks omitted). However, “it
18 is only when execution of a government’s policy or custom inflicts the
19 injury that the municipality as an entity is responsible.” Id. “It is
20 well established in [Ninth Circuit] precedent that a policy can be one
21 of action or inaction.” Id. (internal quotation marks omitted). Here,
22 Plaintiff is alleging a policy of inaction; specifically, “that through
23 its omissions the municipality is responsible for a constitutional
24 violation
committed
by
one
of
its
employees,
even
though
the
25 municipality’s policies were facially constitutional[.]” Long v. Cnty.
26 of Los Angeles, 442 F.3d 1178, 1185-86 (9th Cir. 2006).
27
In order to allege a policy of inaction under Monell, Plaintiff
28 must show:
12
1
2
3
(1) that a [City] employee violated the
constitutional rights; (2) that the
customs or policies that amount to
indifference; and (3) that these customs
were the moving force behind the
violation of constitutional rights.
plaintiff’s
[City] has
deliberate
or policies
employee’s
4
5 Id. at 1186 (citing Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1193-94
6 (9th Cir. 2002)). Here, the City “assume[s,] arguendo, for purposes of
7 this motion only, that Plaintiff[] [has] asserted or would be able to
8 prove an underlying constitutional violation.” (Defs.’ Mot. 11:19 n.1.)
9 The City argues, however, “Plaintiff has no evidence that this incident
10 was the result of an existing, unconstitutional municipal policy.” Id.
11 12:6-7.
12
i.
13
Plaintiff first argues he can show “the [City] ratified [the]
Ratification of the Failure to Investigate
14 unconstitutional [actions of the officers] by failing to adequately
15 investigate the police officers’ conduct.” (Pl.’s Opp’n 13:7-8 (internal
16 quotation
marks
omitted).)
Specifically,
Plaintiff
argues
“[w]hen
17 informed of [Plaintiff’s] serious injuries, no one in the Department
18 pursued any investigation into whether he suffered those injuries while
19 in police custody.” Id. 15:1-8.
20
In its reply brief, the City argues “in opposition to the
21 motion, Plaintiff for the first time argues the final policymaker, who
22 is not a defendant, ratified the alleged respective conduct.” (Defs.’
23 Reply 4:22-24.) The City further argues “[w]hen a motion for summary
24 judgment is pending, it is inappropriate to attempt to add [a] new
25 theory, even where a motion for leave to amend a complaint is filed.” Id.
26 4:26-27. However, the Court need not reach this issue, since even
27 assuming, arguendo, Plaintiff sufficiently pled ratification of the
28 failure to investigate, Plaintiff fails to produce evidence creating a
13
1 genuine issue of material fact for trial.
2
“A
3 constitutional
municipality
violation
.
if
.
.
can
the
final
be
liable
for an isolated
policymaker
‘ratified’
a
4 subordinate's actions.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir.
5 1999).
“A
6 delegated
plaintiff
may
policymaking
show
that
authority
to
an
a
official
policymaker
subordinate
or
either
ratified
a
7 subordinate’s decision, approving the decision and the basis for it.”
8 Hyland v. Wonder, 117 F.3d 405, 414 (9th Cir. 1997). “The identification
9 of policymaking officials is a question of state law.” St. Louis v.
10 Paprotnik, 485 U.S. 112, 124 (1988). “[U]nder California law, a city’s
11 Charter determines municipal affairs . . . .” Hyland, 117 F.3d at 414.
12
Plaintiff argues “Chief Nichelini[, the Chief of Police,] is
13 a policy maker for [the City] on issues of law enforcement policy and
14 supervision of police officers.” (Pl.’s Opp’n 14:3-4.) Under Vallejo City
15 Ordinance 2.10.112, the Chief of Police shall:
16
Formulate and implement law enforcement
policies and programs[; and] . . .
plans,
17
18
19
20
Make
and
prescribe
such
department
rules,
regulations and orders not in conflict with any
applicable federal or state statute, ordinance or
civil service rule as he deems advisable, providing
for their enforcement and prescribing penalties for
violation . . . .
21 Id. 14:4 n.2. Therefore, since Nichelini is “responsible for establishing
22 final government policy[,]” he is an official policymaker for the City
23 under ratification principles. Ulrich v. City & Cnty. of San Francisco,
24 308 F.3d 968, 985 (9th Cir. 2002).
25
Further, Plaintiff states Lieutenant Nichelman is an official
26 policymaker, arguing that Chief Nichelini “delegated to Lt. Nichelman
27 full reign to initiate internal investigations on his own into incidents
28 such as the injury to [P]laintiff.” (Pl.’s Opp’n 14:7-8.) “An official
14
1 may be found to have been delegated final policymaking authority where
2 the official’s discretionary decision is [not] constrained by policies
3 not of that official’s making and . . . not subject to review by the
4 municipality’s
authorized
policymakers.”
Ulrich,
308
F.3d
at
986
5 (internal quotation marks omitted). “The question therefore becomes
6 whether the policymaker merely has delegated discretion to act, or
7 whether it has done more by delegating final policymaking authority.”
8 Christie, 176 F.3d at 1236.
9
In support of his argument, Plaintiff produces the deposition
10 testimony of Nichelini and Nichelman. Nichelini gave deposition testimony
11 that “[Nichelman] had full reign to open any case he wanted to open” and
12 “the internal affairs division could initiate its own investigations into
13 police officer conduct without a citizen complaint.” (Boley Decl., Ex.
14 I 41:6-9, 41:20-25.) Further, Nichelman avers in his deposition: “I
15 receive the reports and read them . . . . That would be the first trigger
16 point of anything that looked in violation of policy.” Id. Ex. J 43:5-8.
17
However, it is undisputed that Nichelini drafted the portion
18 of the policy regarding IAD investigations. (Pl.’s SUMF ¶ 47.) Further,
19 Nichelman avers he generally could not “decide to conduct an internal
20 investigation of an incident without consulting somebody else in the
21 department” and “it depends” as to “who made the determination as to
22 whether or not an . . . internal investigation . . . would be made
23 . . . .” (Boley Decl., Ex. J 54:24-55:12.) Although Nichelini gave
24 Nichelman
the
discretion
to
open
investigations,
Nichelman’s
25 “discretionary decision[s remain] constrained by policies not of [his]
26 making and . . . [his] decision[s are] subject to review by the [City’s]
27 authorized policymakers[.]” Christie, 176 F.3d at 1236-37 (internal
28 quotation marks omitted). Thus, Nichelman is not an official policymaker
15
1 under Monell.
2
Therefore, the City can be held liable if Nichelini, the
3 official policymaker, “ratified a subordinate’s decision, approving the
4 decision and the basis for it.” Hyland, 117 F.3d at 414. “Accordingly,
5 ratification requires, among other things, knowledge of the alleged
6 constitutional violation.” Christie, 176 F.3d at 1239. Plaintiff argues
7 he “has submitted evidence from which it can be inferred that Chief
8 Nichelini was personally involved in discussions regarding Mr. Dagdagan’s
9 injuries.” (Pl.’s Opp’n 14:4-5.) In support of his argument, Plaintiff
10 relies upon the testimony discussed in the preceding paragraph and
11 produces
additional
deposition
testimony.
Nichelman
avers
in
his
12 deposition testimony: “generally as a matter of practice I’m sure this
13 [case] was talked about at the captain’s level and most likely in a
14 meeting with the chief. But I don’t have a specific recollection, but
15 that would be a matter of practice that at some point an incident like
16 this would be discussed.” (Boley Decl., Ex. J 29:13-21.) Further,
17 Nichelini declares “the captains are going to bring to me serious
18 incidents and matters . . . that the newspaper might be interested, that
19 the council might be interested in, and they will tell me about those
20 things maybe on a daily basis. . . . We exchange a lot of information.”
21 (Boley Decl., Ex. I 28:11-18.) Relying upon these statements, Plaintiff
22 argues, “the case was likely discussed with the Chief of Police because
23 of the serious injury and the likelihood of litigation.” (Pl.’s Opp’n
24 6:14-16.) However, “[Plaintiff] provided no evidence, in conjunction with
25 his [opposition brief], that [Chief Nichelini] knew of [the officers’]
26 actions [about which he complains] . . . That being so, [Plaintiff] has
27 not established a genuine issue of material fact as to the question
28 whether [Chief Nichelini] ratified [the officers’] actions.” Christie,
16
1 176 F.3d at 1239.
2
ii.
3
Failure to Train and Supervise
Further, Plaintiff argues the “evidence establishes triable
4 issues of fact that [the City’s] deficiencies in training and supervision
5 subject it to liability under Monell.” (Pl.’s Opp’n 15:11-12.) The City
6 rejoins,
arguing “there is no evidence the final policymaker was aware
7 of the constitutional injuries and determined to ignore them.” (Defs.’
8 Reply 2:9-10.)
9
“A municipality’s failure to train an employee who has caused
10 a constitutional violation can be the basis for § 1983 liability where
11 the failure to train amounts to deliberate indifference to the rights of
12 persons with whom the employee comes into contact.” Long v. Cnty. of Los
13 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Therefore, Plaintiff bears
14 “the burden of proving both (1) that [Nichelini], the policymaker[,]
15 . . . was deliberately indifferent to the need to train the [officers]
16 . . . and (2) that the lack of training actually caused the . . .
17 violation in this case.” Connick v. Thompson, 563 U.S. ----, 131 S.Ct.
18 1350, 1358 (2011). “To prove deliberate indifference, [Plaintiff needs]
19 to show that [Nichelini] was on notice that, absent additional specified
20 training, it was highly predictable that the [officers] in his office
21 would
be
confounded
by
those
gray
areas
and
make
incorrect
22 [constitutional] decisions as a result. In fact, [Plaintiff has] to show
23 that it was so predictable that failing to train the [officers] amounted
24 to conscious disregard for [Plaintiff’s constitutional] rights.” Id. at
25 1365 (internal quotation marks omitted). “Mere negligence in training or
26 supervision, however, does not give rise to a Monell claim.” Dougherty
27 v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).
28
In order to show a failure to train and supervise, Plaintiff
17
1 produces expert reports detailing the alleged “shoddy and incomplete
2 investigations,” a 2005 investigation exonerating an officer’s decision,
3 and an expert report detailing the “175 separate allegations of improper
4 conduct in the six years preceding the incident.” (Pl.’s Opp’n 16:4-12,
5 8:11-12.) The 2005 investigation report addresses a citizen complaint
6 alleging that “officers illegally entered his home and that unnecessary
7 force was used during his arrest . . . .” (Boley Decl., Ex. Q MSJOPP
8 0011.) Nichelini reviewed the investigation report and approved the
9 exoneration. Id. MSJOPP 0010. Plaintiff also produces Martinelli’s expert
10 report, which states “[a] review of documents as provided
by
the
11 defendants reveal[s] approximately 135 citizen claims for damages against
12 the City police department revealed a total of approximately 175 separate
13 allegations, including four separate [IAD] complaints from 2001 through
14 the date of the incident.” Id. Ex. C, at 5.
15
However, Plaintiff’s evidence does not create a genuine issue
16 of material fact regarding Nicheleni’s alleged deliberate indifference
17 since
Plaintiff
only
produces
evidence
showing
allegations
and
18 investigations ending in exoneration of the officers. Cf. Koenig v. City
19 of Bainbridge Island, 2011 WL 3759779, at *9 (W.D. Wash. Aug. 25, 2011)
20 (“[The Chief of Police’s] agreement with the independent findings that
21 the allegations were ‘unsubstantiated’ does not rise to the level of
22 ratification of [the officer’s] alleged unconstitutional conduct. In
23 other words, [the Chief] did not ratify unconstitutional or wrongful
24 conduct; he ratified conduct he reasonably believed to be appropriate
25 under the circumstances.”) Further, the expert reports produced by
26 Plaintiff
27 relevant
detailing
to
the
the
inquiry
alleged
of
incomplete
whether
28 constitutional violations.
18
investigations
Nichelini
was
on
are
notice
not
of
1
Since Plaintiff has not produced evidence to create a genuine
2 issue of material fact as to Nichelini ratifying a subordinate’s conduct
3 or being deliberately indifferent to the need to train the officers,
4 Defendant’s partial motion for summary judgment on Plaintiff’s Monell
5 claims is granted.
6
7
IV. CONCLUSION
For the stated reasons, Defendants’ motion for partial summary
8 judgment on Plaintiff’s Fourth Amendment claim against Detective Melville
9 and Plaintiff’s Monell claims is granted; Plaintiff’s substantive due
10 process claim against Defendants Wentz and Boyd is dismissed; and
11 Plaintiff’s motions are denied.
12 Dated:
13
14
15
November 18, 2011
GARLAND E. BURRELL, JR.
United States District Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
19
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