Tuggles v. City of Antioch et al, No. 3:2008cv01914 - Document 110 (N.D. Cal. 2009)

Court Description: ORDER Granting in Part and Denying in Part 79 Defendants' Motion for Summary Judgment (jcslc2, COURT STAFF) (Filed on 10/2/2009)

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Tuggles v. City of Antioch et al Doc. 110 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ONITA TUGGLES, 7 Plaintiff(s), 8 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Docket No. 79] CITY OF ANTIOCH, ET AL., Defendant(s). ___________________________________/ 11 For the Northern District of California United States District Court 10 v. Case No. C08-01914 JCS 12 13 I. INTRODUCTION On July17, 2009, Defendants City of Antioch, Antioch Police Department, James Hyde, 14 Steve Bias, Mitchell Schwitters, Desmond Bittner, and William Dillard, II (“Defendants”) filed a 15 Motion for Summary Judgment, or in the alternative, for Summary Adjudication. Plaintiff opposes 16 the motion, with the exception of claims seven and eight of the Second Amended Complaint 17 (“SAC”). Plaintiff agrees that her seventh and eighth claims for relief under 42 U.S.C. § 18 1437d(q)(7) and 42 U.S.C. § 1437d(q)(2) should be dismissed. See Plaintiff’s Opp. at n. 1, n. 19. 19 The Court therefore GRANTS Defendants’ Motion for Summary Adjudication with respect to 20 claims seven and eight. 21 The parties have previously consented to the jurisdiction of this Court. The motion came on 22 for hearing on September 8, 2009 at 9:30 a.m. For the reasons stated below, the Defendants’ Motion 23 for Summary Judgment/Adjudication (“the Motion”) is GRANTED IN PART AND DENIED IN 24 PART as follows: 25 1) the Motion as to claims one through four, to the extent based upon the unauthorized release of 26 juvenile records, is GRANTED as to all Defendants; 27 2) the Motion on Plaintiff’s equal protection claim under §1983 (claim 1) is GRANTED as to all 28 Defendants with the exception of Officer Bittner. The motion is DENIED with respect to Officer Bittner; Dockets.Justia.com For the Northern District of California United States District Court 1 3) the Motion is GRANTED on Plaintiff’s procedural due process claims (claim 1) as to all 2 Defendants; 3 4) the Motion is GRANTED on Plaintiffs §§ 1985(3) and 1986 claims (claims 3 and 4) as to all 4 Defendants with the exception of Officer Bittner. The motion is DENIED with respect to Defendant 5 Bittner; 6 5) the Motion is GRANTED on Plaintiff’s §3604 claim (claim 6) as to all Defendants; 7 6) the Motion is GRANTED on Plaintiff’s §3617 claim (claim 6) as to all Defendants, except for 8 Defendant Bittner. The Motion is DENIED with respect to Officer Bittner; 9 7) the Motion is GRANTED on Plaintiff’s claim under 42 U.S.C. § 2000d (Title VI of the Civil 10 Rights Act of 1964) (claim 5) as to all Defendants; 11 8) the Motion is GRANTED on Plaintiff’s Monell claim (claim 2) with respect to municipal liability 12 for all Defendants; 13 9) the Motion is GRANTED as to all Defendants on Plaintiff’s claim based upon the breach of 14 mandatory duties (claim 10); 15 10) the Motion is GRANTED on Plaintiff’s respondeat superior claim (claim 11) as to all 16 Defendants except with respect to the claims against Defendant Bittner in claims 16 and 17; 17 11) the Motion is GRANTED on Plaintiff’s negligence and IIED claims (claims 12 and 13) against 18 all Defendants; 19 12) the Motion is GRANTED on Plaintiff’s state abuse of process and malicious prosecution claims 20 (claims 14 and 15) against all Defendants; 21 13) the Motion is GRANTED on Plaintiff’s housing and race discrimination claims (claims 16 and 22 17) under state law as to all Defendants other than Officer Bittner. The motion is DENIED with 23 respect to Defendant Bittner; 24 14) the Motion is GRANTED on Plaintiff’s declaratory and injunctive relief claim (claim 18) with 25 respect to the claims that are dismissed herein, and DENIED with respect to the claims that may 26 proceed to trial. 27 28 2 1 2 II. BACKGROUND A. For the Northern District of California United States District Court 3 Factual Background 1. Plaintiff’s Section 8 Tenancy 4 Plaintiff Onita Tuggles (“Plaintiff”) and her two children, Natalia and Michael, are an 5 African-American family, who lived at 1933 Paradise Peak Court in the City of Antioch from 6 October 2003, through April 2007. Joint Statement of Undisputed Facts #1, 2 (hereafter “JSUF”). 7 Plaintiff was a recipient of rental assistance payments, under the Contra Costa County 8 Housing Authority disbursed by the federally financed Housing Choice Voucher Program commonly 9 known as “Section 8", codified in 42 U.S.C. § 1437f. Id. #3. Plaintiff’s children, Natalia and 10 Michael, were listed as authorized members of Plaintiff’s household. Id. #4. According to the 11 Housing Assistance Payments Contract and Plaintiffs Residential Lease-Rental Contract, there were 12 a total of three authorized members in Plaintiff’s household. Id. #5. As a condition of receiving 13 benefits, participants agree to abide by a list of “Family Obligations,” which states in pertinent part 14 that, “members of the family may not engage in drug-related criminal activity, or violent criminal 15 activity, or other criminal activity that threatens the health, safety or right to peaceful enjoyment of 16 other residents and person residing in the immediate vicinity of the premises.” Id. #6. 17 18 2. Creation of the “Community Action Team” “CAT” In July 2006, the Antioch Police Department established the Problem Housing Unit, also 19 known as the Community Action Team (hereinafter “CAT”). Id. #7. The creation of CAT was in 20 response to the perception that much of the City of Antioch’s problems could be attributed to the 21 Section 8 population. Candappa Decl., Exh. 2, Tamayo Depo. at 33:17-35:13.1 The creation of 22 23 24 25 26 27 28 1 Defendants object to Exhibit 2 to the Candappa Declaration, which is testimony from the Deposition of Rudy Tamayo in the Santeya Williams v. City of Antioch case, C-08-2301 SBA. Defendants move to strike this testimony on relevance and hearsay grounds. The relevance objection is overruled. Defendants’ hearsay objection is similarly misplaced. Sworn deposition testimony may be used by or against a party on summary judgment, even if that testimony was obtained in a separate proceeding. See Gulf USA v. Federal Ins. Co., 259 F.3d 1049, 1056 (9th Cir. 2001) citing Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.1991). The Ninth Circuit explained that “[s]uch testimony is considered to be an affidavit pursuant to Federal Rule of Civil Procedure 56(c), and may be used against a party on summary judgment as long as the proffered depositions were made on personal knowledge and set forth facts that were admissible in evidence.” Id. at 1056. The deposition testimony cited here by Plaintiff satisfies this rule. Defendants also object to Exhibit 8 entitled “Policing LowIncome African-American Families in Antioch” prepared by Public Advocates and Bay Area Legal Aid. Defendants object to this “evidence” and have moved to strike it from the record. The Court GRANTS Defendants’ motion to strike. The report is inadmissible hearsay. Moreover, even if the Court were to 3 1 CAT occurred as foreclosures were increasing, and city homeowners and city council members 2 increasingly looked to Section 8 housing recipients as the culprit of the increased “crime and blight.” 3 Id. The CAT team is responsible for handling all Section 8 housing cases and issues. Candappa 4 Decl., Exh. 10, Schwitters Depo. at 78:13-85:21. 5 6 (43%) of which were African-Americans and 37 (31%) were Caucasians. Candappa Decl., Exh. 10, 7 Schwitters Depo. Ex 17, Bates Nos. 005-006. According to documents produced in this case by 8 HACCC, 46% of the Section 8 tenants in Antioch are African-American and 49% of them are 9 Caucasian. Candappa Decl., Exh. 7, Housing Choice Vouchers in Antioch. For the Northern District of California 10 United States District Court Between July 2006 and July 2007, the CAT recorded a total of 120 arrests and citations, 51 Defendant Officer Bittner was assigned to CAT from July 10, 2006, through March of 2008. 11 JSUF #8. Defendant Officer Dillard was assigned to CAT from July 10, 2006 through April of 12 2007. Id. #9. Defendant Sergeant Schwitters has been the supervisor of CAT since its inception in 13 July 2006. Id. #10. Defendant Corporal Bias was a supervisor assigned to CAT from July 2006 to 14 July 2007. Id. #11. 15 16 3. The Investigation of Plaintiff and her Family By letter dated March 14, 2007, Plaintiff’s property manager, Select 1 Realty, sent Plaintiff a 17 letter stating that it “has come to our attention there may be people living at the property referenced 18 above (1933 Paradise Peak) that are not on your contract.” Id. #12. In Select 1 Realty’s letter of 19 March 14, 2007, Plaintiff was advised that “this is a violation of your rental agreement and possible 20 cause for termination.” Id. #13. 21 According to Defendants, someone at Select 1 Realty had recognized Plaintiff’s name from a 22 Contra Costa County Times newspaper article, dated March 9, 2007, entitled “Police, Teens 23 Involved in Brawl.” Declaration of Noah Blechman, Exh. L. The article specifically referred to 24 Plaintiff’s 16-year-old son, Michael Housley, who had been interviewed and was quoted in the 25 article. Id., Exh. K. The article also quotes “Mr. Housley’s mother, Onita.” Id. 26 27 That same morning, Roberta Haynes, a Welfare Fraud Investigator for the County of Contra Costa, contacted the Antioch Police Department Officer Dillard about the matter because the 28 consider this evidence, the Court’s analysis and conclusion remain the same. 4 1 complaint was one that she could not investigate, due to the fact that Employment and Human 2 Services (EHSD) did not have an “open case” on the matter. Blecher Decl., Exh. M. According to 3 Officer Dillard, he asked Ms. Haynes to submit all complaints in writing to APD. Id., Exh. E, 4 Dillard Deposition, 67:16-68:8, 74:11-22. For the Northern District of California United States District Court 5 Officer Dillard subsequently received a confirming e-mail from Ms. Haynes on March 15, 6 2007, at approximately 8:37 a.m., regarding the complaint. Id., Exh. M, Exh. E, 64:20-67:7.2 In that 7 email, Ms. Haynes refers both to the newspaper article, and the fact that she received a complaint 8 that there “has been an unidentified male in the home for some time” who “answers the telephone 9 and greets repair men.” Id. Ms. Haynes also expressed the concern that a complainant “wanted to 10 know why Section 8 it [sic] paying rent for a 5 bedroom home for three people.” Id., Exh. M. Ms. 11 Haynes explained further that she advised the complainant to report the matter to the Antioch Police 12 Department and Section 8 Housing Manager, Joanna Rodriguez because “it was a housing issue.” 13 Id. 14 Also on March 15, 2007, Officer Dillard ran CLETS system checks on Onita Tuggles and 15 her daughter, Natalia. JSUF #17. The CLETS checks were time stamped 8:10 and 8:11 in the 16 morning. Id. Shortly thereafter, at approximately 8:16 a.m., Officer Dillard opened an event report 17 relating to 1933 Paradise Peak Court. Id. #14. The event report, #07-021502, does not identify 18 Plaintiff’s son by name, but simply references a “bmj” (black male juvenile). Id. #15. Later that 19 same day, at 1:51 p.m., Officer Dillard retrieved Antioch Police Department incident reports 20 pertaining to the juveniles living at Plaintiff’s address to be released to the Contra Costa Housing 21 Authority (hereafter “HACCC”). Id. #18. 22 In a letter dated March 15, 2007, Officers Dillard and Bittner informed Ms. Rodriguez of the 23 Housing Authority in writing that “two authorized juveniles,” living at 1933 Paradise Peak Court, 24 “have been involved in recent and multiple violent assaults” in the City of Antioch. Id. #19. Officer 25 Dillard stated that “this brother and sister have been active participants in several fights and 26 disturbances at the Regal Theater and Deer Valley Plaza” and mentioned several arrests of both 27 juveniles. Id. #22. Officer Dillard stated that he believed that the incidents “constitute a violation of 28 2 There is no evidentiary basis on which to accept Plaintiff’s assertion that Officer Dillard was not sent or did not receive this email. 5 For the Northern District of California United States District Court 1 section ‘U’ of the Family Obligations Form.” Id. #23. Officer Dillard requested HACCC to take 2 “appropriate actions as deemed necessary.” Id. The letter included an article from the Contra Costa 3 Times newspaper regarding the “near riot” adding that the officers do not endorse the truth of the 4 facts in the article, but wanted Ms. Rodriguez to be aware of it. Exhibit O.3 The letter was reviewed 5 by Sergeant Schwitters as evidenced by initials on the bottom right hand comer of the document. Id. 6 #24. 7 Prior to receiving the March 15, 2007, letter from APD, Ms. Rodriguez had already been 8 contacted by the Contra Costa County Welfare Fraud Investigator, Ms. Haynes. JSUF #27. Ms. 9 Rodriguez had also received a complaint from the property manager alleging possible 10 non-compliance by Plaintiff on the basis that there was a possible unauthorized member, a male, 11 living in the unit. Id. # 28. Ms. Rodriguez recalls investigating the matter and was unable to 12 substantiate the allegation pertaining to the unauthorized member. Id. #29. Ms. Rodriguez further 13 received APD’s incident reports pertaining to juveniles living at Plaintiff’s address. Id. #26. She 14 shredded the reports prior to the termination hearing. Id. 15 Also on March 15, Officers Bittner and Dillard went to Plaintiff’s home. Tuggles Decl. ¶3. 16 The officers entered her home after informing her that they wanted to discuss how they could 17 improve relations between the Antioch Police Department and residents. Tuggles Decl. ¶3; 18 Candappa Decl. Ex. 13, Bittner depo, at 124:13-125:19. The meeting ended “on a good note” and 19 the officers left. Candappa Decl. Ex. 13, Bittner depo, at 127:19-25. 20 According to Plaintiff, upon leaving her residence, Plaintiff’s son Michael told her that one 21 of the CAT officers opened her mailbox that was located outside. Tuggles Decl. ¶7. Plaintiff feared 22 that the officers may be reading or tampering with her mail and so she asked her son Michael to go 23 outside and check the mailbox. Id. He returned with a letter from Select 1 Realty. Tuggles Decl. ¶8. 24 Plaintiff believes that this letter was delivered by hand, due to the fact that her mail was delivered by 25 the U.S. postal service later in the day, after Michael had retrieved the Select 1 Realty letter. Id. The 26 Select 1 Realty letter from the property manager, Sandy Mello, was dated March 14, 2007, and 27 28 3 There are two newspapers articles that are discussed by the parties. It is unclear which one was included in Officer Dillard’s letter to Ms. Rodriguez, although from the description, it appears to be the March 8, 2007 article (Exh. P), which does not name the individuals involved in the “near riot.” The March 9, 2007 letter explicitly refers to Onita and her son Michael Housley (Exh. K). 6 1 alleged that there may be people living with Plaintiff who were not on the rental contract. Tuggles 2 Decl. ¶9. 3 4 inquired about the allegation. Tuggles Decl. ¶ 10. Ms. Mello informed her that she had received 5 information from an anonymous source that there were people living with Plaintiff who were not 6 authorized to live there. Id. Plaintiff denied the allegation and invited Ms. Mello to send someone 7 over to investigate the matter. Id. After the conversation with Ms. Mello on March 15, Plaintiff did 8 not hear from Ms. Mello concerning this allegation. Id. For the Northern District of California 9 United States District Court Plaintiff called Select 1 and spoke with Ms. Mello about the letter she had received and On March 19, 2007, at approximately 2:12 p.m., Officer Dillard memorialized the CAT visit 10 to Ms. Tuggles in the relevant event report , No. 07-021502, as follows: “After a lengthy talk with 11 the mother of the two out of control juveniles from this unit, this case was submitted to Section 8 for 12 termination.” Blechman Decl., Ex. J, Bates No. D3189. 13 On March 28, 2007, Defendant Sgt. Schwitters informed Eduardo Almodovar, the property 14 owner of 1933 Paradise Peak Court, that “residents at the location have multiple arrests by APD ... 15 for violent crimes and for disturbing the peace,” and that he hoped to “work with” Mr. Almodovar to 16 “gain immediate compliance regarding the listed issues and avoid criminal abatement and civil 17 litigation.” JSUF #30. Sgt. Schwitters further notified the property owner that he would not be 18 considered an “innocent owner” in any future action if he did not take reasonable steps to prevent 19 “any future unlawful use” of his property. Id. #31. 20 On March 28, 2007, before the property owner or manager took any action, HACCC sent 21 Plaintiff a 30-day notice advising her that HACCC was proposing to terminate her Section 8 housing 22 benefits voucher because members of Plaintiffs household were involved in criminal activity in 23 violation of CFR 24 Section 982.551(1) - crime by household members. Id. #32. The termination 24 letter further stated that Plaintiff s Housing Assistance Payment contract would terminate on April 25 27, 2007. Id. The HACCC letter of March 28, 2007, stated that Plaintiff could request a hearing in 26 writing within 10 days of the letter. Id. #33. 27 28 On March 28, 2007, Ms. Rodriguez from HACCC notified Plaintiff’s property manager, Select 1 Realty, about the termination of Plaintiffs Section 8 Housing Assistance voucher effective April 28, 2007, for program non-compliance and/or breach of family obligations. Id. #34. Ms. 7 1 Rodriguez’s letter further stated that Plaintiff would be responsible for the full amount of the rent 2 beginning April 28, 2007, should she continue to stay in the unit past the termination date. Id. The 3 letter also noted that the Housing Authority has a high success rate on terminations. Id. 4 5 60-day tenancy termination notice. Id. #35. On March 30, 2007, the property owner, Mr. 6 Almodovar, called Select 1 Realty because he was concerned about his liability after receiving Sgt. 7 Schwitter’s letter. Id. #36. Select 1 Realty told Mr. Almodovar that he had nothing to worry about. 8 A 60-day cancellation notice had already been served. Id. #37 For the Northern District of California 9 United States District Court On March 30, 2007, Plaintiff’s property manager, Select 1 Realty, served Plaintiff with a On April 5, 2007, Plaintiff requested a hearing in writing. Id. #38. Plaintiff’s hearing was 10 not set until after the date of the termination of her Section 8 Housing Choice Voucher. Id. #39. 11 According to Housing Authority records, Plaintiff’s termination hearing was initially scheduled for 12 May 21, 2007. Id. Plaintiff and her family moved out of 1933 Paradise Peak Court on or about 13 April 26, 2007. Id. #40. 14 On June 11, 2007, HACCC conducted an administrative hearing to determine whether 15 Plaintiff’s benefits under Section 8 Housing Choice Voucher Program were lawfully terminated by 16 HACCC. Id. #41. Ms Rodriguez requested Officer Bittner’s presence at the hearing and further 17 requested that the Antioch Police Department officers bring the following enumerated police reports 18 to the hearing: 05-008068, 05-007019,04-010923, and 07-002458. Id. #42. Officer Bittner testified 19 at the June 11, 2007, hearing. Id. #43. He stated that an investigation showed that there were 20 several incidents involving authorized members of Plaintiff’s household. Id. Officer Bittner further 21 testified that he was not the arresting officer and was not present at the scene of any of the incidents. 22 Id. Officer Bittner would not disclose any facts at the hearing about the disposition of these 23 incidents because they involved juveniles. Id. Officer Bittner was also questioned about a March 24 2007 Contra Costa Times newspaper article, but he would not confirm or deny the factual accuracy 25 of the report. Id. #44. Officer Bittner did not produce any police reports pertaining to Plaintiff’s 26 children at that hearing. Id. #45. 27 28 On June 26, 2007, the HACCC rescinded the HACCC Notice of Decision and termination of Plaintiffs Section 8 benefits because HACCC’s termination notice did not meet due process requirements. Id. #46. According to the Hearing Officer, the notice of HACCC Notice of 8 For the Northern District of California United States District Court 1 Decision, and termination did not contain a “factual statement of the incident or incidents that the 2 Housing Authority considered a violation of the family obligations and cause for terminating 3 assistance.” Id. #47. Further, the notice did “not indicate which family members committed the 4 proscribed acts, what the nature of the alleged crime or crimes was, or when the relevant acts were 5 committed.” Id. The HACCC reinstated Plaintiffs Section 8 benefits in August 2007. Id. #48. 6 B. 7 On April 10, 2008, Plaintiff filed a complaint in federal court, which was amended on April Procedural History 8 30, 2008, and on March 6, 2009. On April 10, 2009, pursuant to a settlement agreement, Defendants 9 Housing Authority of the County of Contra Costa, Elizabeth Campbell, Kathy Guzman and Joanna 10 Rodriguez were dismissed with prejudice from this action. The remaining Defendants, City of 11 Antioch, Antioch Police Department and the individual APD Defendants filed the present motion for 12 summary judgment. 13 III. DISCUSSION 14 A. 15 Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, 16 and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to 17 any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. 18 P. 56(c). In order to prevail, a party moving for summary judgment must show the absence of a 19 genuine issue of material fact with respect to an essential element of the non-moving party’s claim, 20 or to a defense on which the non-moving party will bear the burden of persuasion at trial. Celotex 21 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, “Celotex requires that for issues on which the 22 movant would bear the burden of proof at trial, that party must show affirmatively the absence of a 23 genuine issue of material fact,” that is, “that, on all the essential elements of its case on which it 24 bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” 25 Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993). Once the movant has made this 26 showing, the burden then shifts to the party opposing summary judgment to designate “specific facts 27 showing there is a genuine issue for trial.” Id. at 323. On summary judgment, the court draws all 28 reasonable factual inferences in favor of the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. Legal Standard on Motion for Summary Judgment 242, 255 (1986). 9 1 A district court need not scour the record in search of a genuine issue of triable fact. Keenan 2 v. Allen, 91 F.3d 1275, 1279 (9th Cir.1996). The nonmoving party has the burden of identifying with 3 reasonable particularity the evidence that precludes summary judgment. Id. If the nonmoving party 4 fails to do so, the district court may grant summary judgment in favor of the moving party. See 5 Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 (9th Cir.2001) (even if 6 there is evidence in the court file that creates a genuine issue of material fact, district court may 7 grant summary judgment if the opposing papers do not include or conveniently refer to that 8 evidence). Although the district court has discretion to consider materials in the court file not 9 referenced in the opposing papers, it is not required to do so. Id. at 1029. “The district court need not For the Northern District of California United States District Court 10 examine the entire file for evidence establishing a genuine issue of fact.” Id. at 1031. 11 B. 12 Plaintiff claims that Defendants: 1) initiated and pursued an investigation against her; 2) 13 disclosed her children’s juvenile records to the HACCC; and 3) wrote a threatening letter to her 14 property owner, all in violation of federal law. As a threshold matter, Defendants argue that Plaintiff 15 lacks standing to pursue her first through fourth claims under 42 U.S.C. §§1983, 1985 and 1986 on 16 behalf of her minor children, Michael and Natalia, based upon the unlawful release of confidential 17 juvenile records. Standing 18 The Court finds that Plaintiff has made no showing that she has suffered a violation of her 19 own constitutional rights, sufficient to give rise to a claim under 42 U.S.C. §1983 based upon the 20 disclosure of her children’s juvenile records. Indeed, Plaintiff does not address Defendants’ 21 standing argument at all. Plaintiff does not identify the interest she allegedly possesses in her 22 children’s juvenile court records. For example, in certain cases, a parent may assert §1983 claims 23 for damages against defendants whose conduct constitutes governmental interference with the 24 parental relationship. See e.g., Morrison v. Jones, 607 F.2d 1269, 1275 (9th Cir. 1979) (contention 25 that mother has no standing to sue because merely asserting rights of her child is frivolous; 26 defendants’ actions caused injury to her relationship with her son, which is protected by the 27 Constitution). Here, Plaintiff has not argued that her interest in the confidential juvenile records 28 rises to the level of a protected interest. Plaintiff has not brought this lawsuit as guardian on behalf of her minor children; rather, she has filed the action on her own behalf. She lacks standing to 10 1 pursue any Fourth Amendment violations on behalf of her children because a person cannot claim a 2 derivative constitutional violation on the basis of the intrusion of another’s property or privacy 3 rights. See e.g., Wilkinson v. F.B.I., 99 F.R.D. 148, 150 (C.D. Cal. 1983). 4 5 constitutional rights related to the juvenile records. Accordingly, the Court GRANTS Defendants’ 6 motion for summary adjudication with respect to all claims of the Second Amended Complaint that 7 are based upon the unlawful disclosure of juvenile records. 8 9 10 11 For the Northern District of California United States District Court Plaintiff has identified no independent federal basis on which to claim a violation of her own Even if the Plaintiff had standing to pursue a federal claim with respect to the unauthorized release of juvenile records and failure to disclose them to her, the Court concludes that the Defendants are shielded from liability by qualified immunity. C. Defendants are Protected from Liability for Release and Failure to Disclose Juvenile Records by Qualified Immunity4 12 13 The individual Defendants argue that even assuming a constitutional violation related to the 14 release of juvenile records and failure to disclose them to Plaintiff occurred, they are entitled to 15 qualified immunity and cannot be held responsible for their conduct under Saucier v. Katz, 533 U.S. 16 194 (2001). The Court agrees. 17 1. Standard Governing Qualified Immunity 18 Under the doctrine of qualified immunity, even if a constitutional violation occurred, 19 governmental officials are immune if their conduct “does not violate clearly established statutory or 20 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 21 U.S. 800, 818 (1982). To determine whether a defendant is entitled to qualified immunity, courts 22 must first ask, “[t]aken in the light most favorable to the party asserting the injury, do the facts 23 alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 24 200 (2001). If not, the qualified immunity analysis ends here. Id. at 201. On the other hand, “if a 25 26 27 28 4 The Court does not address in this section the claim that the release of the records, if true, was based upon racial discrimination against Plaintiff. That assertion is discussed below. 11 1 violation could be made out on a favorable view of the parties’ submissions, the next sequential step 2 is to ask whether the right was clearly established.” Id.5 3 4 general rule is established. Id. Rather, “[t]he relevant dispositive inquiry in determining whether a 5 right is clearly established is whether it would be clear to a reasonable officer that his conduct was 6 unlawful in the situation he confronted.” Id. at 202 (emphasis added). The Supreme Court has 7 cautioned that courts should afford “deference to the judgment of reasonable officers on the scene” 8 and should not use “20/20 hindsight vision.” Id. at 205. Thus, “[e]ven law enforcement officials 9 who ‘reasonably but mistakenly conclude that probable cause is present are entitled to immunity.’” 10 Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511 (1985)). 11 For the Northern District of California United States District Court The inquiry as to this second question must be “particularized.” Id. It is not enough that the 12 2. Applicability of Qualified Immunity to the Facts of this Case As discussed above, the Court finds no constitutional violation of Plaintiff’s rights pertaining 13 to the release and failure to disclose juvenile records on the undisputed facts of this case. The 14 qualified immunity analysis, therefore, ends there at the first step in the analysis discussed above. 15 Even if Plaintiff had presented sufficient evidence of a constitutional violation, however, the Court 16 would find that the Defendants are entitled to qualified immunity. 17 The second question for the Court to address in the qualified immunity analysis is whether 18 the right was clearly established at the time the Defendants acted. Saucier, 533 U.S. at 201. If the 19 answer to that question is yes, then the Court must analyze whether the Defendants could have 20 reasonably believed that their conduct did not violate a clearly established constitutional right. Id. 21 The Court concludes that the law with respect to whether Defendants were permitted to 22 release juvenile records to a welfare agency, here HACCC, conducting proceedings investigating 23 potential violations of law was not clearly established at the time of the incident in this case. 24 The California Welfare and Institutions Code §827 provides general provisions regarding the 25 release of juvenile files, but does not provide guidance regarding the specific issues here – release of 26 records to the Housing Authority. There are no specific laws or regulations that address this issue. 27 28 5 Although the Court in Saucier established these two steps in a strict sequential order, a subsequent decision of the Supreme Court, Pearson v. Callahan, – U.S. – , 129 S.Ct. 808, 818 (2009), held that lower courts have discretion to decide which of the two prongs to consider first. The sequence is no longer mandatory. Id. 12 1 Defendants also point out that other local counties, San Francisco and Santa Clara, for example, 2 allow dissemination of juvenile police records and information to the housing authority. See 3 Defendant’s Motion at 17. Because the law with respect to whether the police officers could 4 lawfully provide the Housing Authority with juvenile police records for use at the hearing was 5 uncertain at the time of this incident, the individual Defendants were not on notice that the release of 6 juvenile information to the Housing Authority in preparation for a hearing on potential housing 7 violations was unlawful.6 The Defendants are entitled to qualified immunity on Plaintiff’s claims 8 one through four based on the unauthorized release of juvenile records.7 9 For the Northern District of California United States District Court 10 C. Plaintiff’s First through Sixth Claims for Relief – Discrimination Based on Race Plaintiff asserts that she was discriminated against on the basis of race in her first through 11 sixth claims for relief under 42 U.S.C. § 1983, § 1985(3), § 1986 § 2000d and § 3617. Plaintiff 12 claims that she was deprived, under §1983, of due process and equal protection. Section 1983 13 provides that: 14 15 Every person who, under the color of any statute . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 16 17 42 U.S.C. 1983. “Section 1983 is not itself a source of substantive rights but merely provides a 18 method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 19 (1994). To state a claim pursuant to section 1983, a plaintiff must allege two essential elements: (1) 20 that a right secured by the Constitution and laws of the United States was violated; and (2) that the 21 alleged violation was committed by a person acting under the color of the law. West v. Atkins, 487 22 U.S. 42, 48 (1988). As defined by the courts, a person “subjects” another to the deprivation of a 23 constitutional right under §1983 if he or she commits an affirmative act, or omits to perform an act 24 that he or she is legally required to perform that causes the constitutional deprivation. Johnson v. 25 26 27 28 6 Indeed, Officer Bittner testified at his deposition that to his knowledge this was a “gray area” of the law and that he believed it was permissible to release redacted juvenile records to the Housing Authority. See Exh. F, Bittner Depo., 194:11, 196:7-16. 7 For the same reasons, the Court finds that the individual Defendants are shielded from liability by qualified immunity for the officers’ failure to disclose the records to Plaintiff at the hearing. 13 1 Duffy, 588 F.23d 740, 743 (9th Cir. 1973). In addition, Plaintiff claims that Defendants’ conduct 2 violates §§1985, 1986, 2000d and 3617. For the Northern District of California United States District Court 3 In support of her race discrimination claims, Plaintiff argues, based upon a “concerted 4 action” theory, that the Antioch Police Department acted in concert with the Housing Authority in 5 order to terminate her housing benefits unlawfully. Plaintiff first argues that the Antioch Police 6 Officers unlawfully discriminated against her by opening an investigation into her Section 8 housing 7 benefits based upon her race. Plaintiff argues that the CAT officers’ conduct in this case is 8 consistent with a pattern of racial profiling of Section 8 tenants in the City of Antioch in violation of 9 the Equal Protection Clause. Plaintiff also argues that the officers unduly influenced the property 10 owner, Mr. Almodovar, and Select 1 Realty in an effort to have her evicted from her home. Plaintiff 11 argues that a conspiracy between HACCC and CAT existed, the purpose of which was to deprive 12 Plaintiff of her constitutional rights. Plaintiff also argues that she was deprived of procedural due 13 process when her Section 8 voucher was terminated without a hearing. 14 Defendants argue that there are no material facts in dispute that could support Plaintiff’s 15 allegations that she was targeted for investigation based upon her race, and that the Antioch Police 16 Department influenced Plaintiff’s landlord, Select 1 Realty, to evict her. Defendants claim that 17 Plaintiff was investigated solely because of the complaint against her, referred to CAT from the 18 welfare officer, Ms. Haynes, and based upon the arrests of Plaintiff’s teenaged children, and that 19 there are no facts that support Plaintiff’s claim of racial profiling or the disparate treatment of 20 African-American Section 8 tenants. Defendants argue that Plaintiff’s “equal protection and due 21 process claims fail alike.” Def.’s Mtn. at 11. 22 As to the allegations of race-based animus to support her Equal Protection claim under 42 23 U.S.C. §1983, the Court finds that there are material facts in dispute that prevent the Court from 24 concluding as a matter of law that Plaintiff was not targeted for removal from Antioch’s Section 8 25 housing program based upon her race by Officer Bittner. Plaintiff has provided no such evidence as 26 to the remaining individual and City Defendants that could support a claim of race-based 27 discrimination. In addition, Plaintiff’s procedural due process claim fails as a matter of law against 28 all Defendants. The Court will address each of Plaintiff’s theories of federal liability in turn. 14 1 The Equal Protection Clause provides that no state shall “deny any person within its 3 jurisdiction the equal protection of the law.” U.S. Const. Amendment XIV, § 1. The Equal 4 Protection Clause “is basically a direction that all persons similarly situated should be treated alike.” 5 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Where disparate treatment of 6 a group is shown, the level of scrutiny to which the state’s action is subjected depends upon the type 7 of group classification at issue. Id. at 439-443. 9 For the Northern District of California Equal Protection (Claim 1) 2 8 United States District Court 1. A long line of Supreme Court cases make clear that the Equal Protection Clause requires proof of discriminatory intent. See e.g., Washington v. Davis, 426 U.S. 229 (1976); Village of 10 Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). These cases 11 establish that Plaintiff must prove two elements before she may be entitled to relief under the 12 Fourteenth Amendment : 1) discriminatory effect; and 2) discriminatory purpose. In Arlington 13 Heights and Davis, a challenge based on “discriminatory effect” failed due to plaintiffs’ inability to 14 establish the existence of a discriminatory purpose. In Arlington Heights, the Court found no 15 evidence that the city intended to discriminate against racial minorities by refusing to re-zone 16 property from single-family to multiple-family units, even though most minorities can only afford 17 multiple-family units. The Court explained in Davis, supra, that “disproportionate impact is not 18 irrelevant, but is not the sole touchstone of an invidious racial discrimination. . .” 426 U.S. at 242. 19 Plaintiff argues that the CAT officers’ conduct has a disproportionate impact upon African- 20 Americans generally. Where a plaintiff seeks to prove the invidious discriminatory intent element of 21 a violation of the Equal Protection Clause through disparate impact and “ . . . the challenged 22 governmental policy is ‘facially’ neutral,’ proof of its disproportionate impact on an identifiable 23 group can satisfy the intent requirement only if it tends to show that some invidious or 24 discriminatory purpose underlies the policy.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 25 2001) (citing Arlington Heights at 264-66) (citing Washington v. Davis, supra, at 242). “[A]n 26 invidious discriminatory purpose may often be inferred from the totality of the relevant facts, 27 including the fact, if it is true, that the law bears more heavily on one race than another.” 28 Washington v. Davis, 426 U.S. at 242. The Supreme Court explained in Davis that “. . . our cases have not embraced the proposition that a law or other official act, without regard to whether it 15 1 reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially 2 disproportionate impact.” Id. at 239. 3 One of the earliest Equal Protection cases establishes that “the effect of a law may be so 4 harsh or adverse in its weight against a particular race that an intent to discriminate is not only a 5 permissible inference but also a necessary one.” Id. (citing Yick Wo v. Hopkins, 118 U.S. 356 6 (1886)). Indeed, there are cases where “a clear pattern unexplainable on grounds other than race, 7 emerges from the effect of the state action.” Id. (citing Arlington Heights, 429 U.S. at 266). The 8 law is clear, however, that “such cases are rare. Absent a pattern as stark as that in . . . Yick Wo, 9 impact alone is not determinative, and the Court must look to other evidence.” Arlington Heights at 11 For the Northern District of California United States District Court 10 12 266. a. Evidence of Disparate Impact The Court concludes that the evidence produced by Plaintiff of discriminatory impact in this 13 case is insufficient, by itself, to raise an inference of discriminatory intent. Much of the proffered 14 evidence is hearsay. That which is not hearsay is too weak to show discriminatory intent by itself. 15 At oral argument on Defendants’ motion, counsel for Plaintiff agreed that in order for the equal 16 protection claim to survive summary judgment, Plaintiff must have some evidence from which an 17 inference of discriminatory intent could be drawn. Counsel also conceded that disparate impact 18 evidence, standing alone, is insufficient on the facts of this case. 19 In support of her claim of disparate impact on the African-American Section 8 community, 20 Plaintiff argues that the Community Action Team or “CAT” comprised of Antioch police officers, 21 unfairly targets African-American residents for investigation for Section 8 housing agreement 22 violations. As evidence of her claim, Plaintiff cites to evidence of investigations of Section 8 tenants 23 and argues that these investigations have a disproportionate impact upon African-Americans. 24 Plaintiff’s Opp. at 6, citing Candappa Decl., Exh. 23, Schwitters Depo at 229:11-230:17, Williams 25 case. Specifically, Plaintiff points to evidence that between July 2006 and December of 2007, CAT 26 investigated 256 cases, 55% of which were Section 8 housing properties. Id. Plaintiff notes that 27 although 4% of Antioch families participate in Section 8 housing, 63% to 67% of the residential 28 cases investigated by CAT involved Section 8 properties. Candappa Decl., Exh 10, Schwitters Depo, Ex 8, Bates No. D106; Exh 22, CAT Event Reports. The Court finds this evidence of 16 1 disparate impact unconvincing. On its face, this evidence is racially neutral – that is, it demonstrates 2 that Section 8 properties are targeted, not that African-American residents are targeted specifically. 3 Plaintiff must show more to raise an inference of intentional discrimination. For the Northern District of California United States District Court 4 Plaintiff next argues that although the Caucasian population is approximately three times the 5 size of the African-American population in the City of Antioch, African-Americans are the subject 6 of more CAT investigations than Caucasians. Based on a sample of 167 residential CAT Event 7 Reports, for example, African-Americans were the subject of 67 CAT cases and Caucasians were the 8 subject of 59 cases. Candappa Decl., Exh. 8 at 17. As stated above, the Court finds Plaintiff’s cited 9 “evidence” to be impermissible hearsay. See, supra, n. 1. The Court must consider only admissible 10 evidence when considering a motion for summary judgment. Exhibit 8 to the Candappa Declaration 11 is a report entitled “Policing Low-Income African-American Families in Antioch” prepared by 12 Public Advocates and Bay Area Legal Aid. Even if this Court were to consider this evidence, it does 13 not demonstrate a “significantly greater impact on African-Americans” sufficient to justify a finding 14 of discriminatory intent. This evidence is, at best, weak evidence of a disproportionate impact. In 15 the brief time period studied, event reports for African-American families outnumbered those for 16 Caucasians 51 to 37. According to documents produced in this case by HACCC, (and cited by 17 Plaintiff here) 46% of the Section 8 tenants in Antioch are African-American and 49% of them are 18 Caucasian. Candappa Decl., Exh. 7, Housing Choice Vouchers in Antioch. 19 In addition to the above statistical evidence, Plaintiff claims that the CAT officers routinely 20 approached neighbors of Section 8 recipients and asked them if they wanted to register complaints 21 against their neighbors. Candappa Decl., Exh. 2, 167:2-6. As part of its investigations, Plaintiff also 22 argues that CAT also conducts illegal searches of residences that were being investigated for 23 possible Section 8 violations. Id. at 167-169. Recipients of Section 8 vouchers are not 24 automatically subject to warrantless home searches; rather, any inspections related to potential 25 housing violations conducted by the Housing Authority are “coordinate[d] with the tenant and 26 sometimes the landlord may have to be there, but generally we give them 24 hours notice and we 27 like to give ‘em a lot of notice than that usually a week in advance to conduct our housing quality 28 standards inspection.” Id. at 169:11-25. Plaintiff also argues that CAT routinely mailed threatening letters to landlords of Section 8 residents, threatening civil and criminal action for failure to remedy 17 For the Northern District of California United States District Court 1 alleged nuisance and other conduct by Section 8 tenants, as was done in this case. Candappa Decl., 2 Ex. 2, Tamayo Depo at 59:14-63:23, Exh. 10, Schwitters Depo., Ex. 24. These letters were co- 3 signed by Sergeant Schwitters, and the CAT supervisor, Chief Hyde. Candappa Decl., Ex. 10, 4 Schwitters Depo at 166:17-167, Schwitters Depo Ex. 24. Again, the Court finds that this evidence 5 supports the inference that all Section 8 tenants in Antioch were targeted for investigation 6 irrespective of race. 7 Plaintiff also argues that CAT works closely with the HACCC to terminate the Section 8 8 vouchers of households that violate the rules of the Section 8 program. Candappa Decl., Exh. 2, 9 Tamayo Depo at 92:19-94, 166:18-7. From May 2007 until approximately November 2008, 10 HACCC was receiving 5-7 “admonishment letters” per week. This frequency of contact between 11 APD and HACCC under Ms. Rodriguez’s tenure is proffered by Plaintiff as further proof of 12 discriminatory intent on behalf of APD. The current manager at HACCC, Zanetta McNab, testified 13 at her deposition that since 2008, the number of letters received from APD has diminished to maybe 14 two or three per month. Candappa Decl., Exh. 3, 72:6-25-73:15-25. Since the departure of the 15 previous manager, Ms. Rodriguez, the rules changed at HACCC, and in order for HACCC to release 16 information about Section 8 recipients to APD, the officers had to have an open case, or 17 investigation on which they were working. Id. This was a departure from the manner in which 18 HACCC and APD had previously worked. Ms. McNab testified that her supervisors had received 19 complaints from APD, complaining that she did not “work[] with them like the previous manager 20 [Joanna Rodriguez] did.” Id. Exh. 3, McNab Depo., 3-21. 21 The Court is unpersuaded by this evidence. The close relationship between CAT and 22 HACCC says nothing about the race of the tenants at issue. Plaintiff’s lengthy discussion and 23 citation to the record regarding the close relationship between the Defendants and HACCC does not 24 contain any facts that could support the inference that these investigations are conducted on the basis 25 of race. 26 Finally, Plaintiff cites the percentage of CAT complaints to HACCC. This fact provides 27 some, albeit weak, evidence of disparate impact. In 2006 and 2007, of the approximately 115 28 complaints received by the HACCC concerning Section 8 voucher holders in Antioch, 76 were submitted by the Antioch Police Department. Candappa Decl. Ex. 24, HACCC spreadsheet 18 1 tabulating complaints for 2006 and 2007. Although African-American households constitute 46% of 2 Section 8 Program renters in the City of Antioch, approximately 70% of the complaints by the CAT 3 to the HACCC concerned African-American tenants. Candappa Decl. Ex. 25, HACCC Summary of 4 CAT Complaints about Section 8 Tenants, Bates No. 800. The Court concludes that this evidence 5 provides some evidence of a facially neutral policy having a disparate impact on the African- 6 American community. However, none of this statistical evidence demonstrates what the particular 7 Defendant officers in this case did – it refers to the conduct of the entire CAT, without any evidence 8 establishing whether CAT includes officers not named as Defendants in this lawsuit. Standing 9 alone, this naked statistical evidence would not be sufficient to sustain a finding of intentional race discrimination. The Court therefore turns to other evidence of discriminatory intent. 11 For the Northern District of California United States District Court 10 12 b. Evidence of Discriminatory Intent Plaintiff does more here than simply claim discriminatory impact. She cites to evidence of 13 specific instances of alleged racist conduct in support of her claim. The Court will address 14 Plaintiff’s proffered evidence as it pertains to each Defendant. 15 In support of her claim of racial profiling, or differential treatment of African-American 16 Section 8 recipients, Plaintiff points to the unlawful arrest of her son, Michael, and Officer 17 Bloxsom’s alleged racist comments to her at the time of her son’s arrest during the so-called “Gas 18 City” incident.8 See Plaintiff’s Opp. at 8. Plaintiff argues that the arrest of her son Michael 19 involved racial profiling and physical abuse on the part of the officers, none of whom are Defendants 20 here. As “evidence” to support this argument, Plaintiff cites to an unverified complaint. See Pl.’s 21 Opp. at 8, citing, Candappa Decl. Exh. 26 (First Amended Complaint, DeArmand E. et al. v. City of 22 Antioch, C-08-1709 SI ¶ ¶ 29-36). The Court cannot consider allegations in an unverified complaint 23 as evidence on summary judgment. In addition, none of this evidence refers to officers named as 24 Defendants in this case, except as noted below. Discriminatory conduct by others does not support a 25 26 27 28 8 Defendants move to strike this evidence, arguing that this incident, the so-called “Gas City incident” is the subject of another, separately-filed lawsuit pending before another judge of this Court – Honorable Susan Illston. See DeArmand E. et. al. v. City of Antioch, C-08-1709 SI. Defendants argue that Judge Illston’s order declining to find that the action arising out of the Gas City incident and the present case are “related” within the meaning of Civil Local Rule 3-12 is proof that the Gas City incident is “unrelated and has no bearing on this case.” Def.’s Reply at 10, citing, DeArmand E., et al. v. City of Antioch, C-08-1709 SI, Docket No. 42 (“Order Denying Administrative Motion to Relate Cases.”) The Court disagrees. The standard under Local Rule 3-12 is not at issue and has no bearing on the evidentiary standards the Court must follow in this case. 19 1 claim that these officers discriminated against Plaintiff. Therefore, the Court rejects Plaintiff’s 2 arguments related to the arrest of Plaintiff’s son and does not consider them as evidence of 3 discriminatory intent by these Defendants. 4 5 named as Defendants here) that was overtly racist during the arrest of her son Michael as evidence 6 of APD’s discriminatory intent. Specifically, Plaintiff testified at her deposition that when she 7 arrived at the Gas City after the arrest of her son, Officer Bloxsom confronted her and said: 8 For the Northern District of California 9 United States District Court Plaintiff also cites her own treatment at the hands of other Antioch police officers (again, not Get the fuck out of here. Get your black ass our of here because you not coming to Antioch with this shit. . . Get your black ass our of here because you black mother fuckers not coming to Antioch with this shit. Get the fuck out of here.9 10 Candappa Decl., Ex. 27, Onita Tuggles Deposition at 21-26:16,32:1-23, 35:4-36, DeArmand E. 11 Case.) Plaintiff argues that Officer Bloxsom’s treatment of her is relevant to this case in that 12 approximately one week after this incident, the CAT team began investigating her family and 13 submitted her case to the HACCC for termination of her Section 8 housing benefits on the grounds 14 that her children had committed crimes. The Court disagrees. This evidence involves an officer 15 who is not named as a Defendant in this action, nor is there any evidence that he had any 16 involvement in the conduct forming the basis of this lawsuit – Plaintiff’s claim that APD was 17 directly involved in targeting Plaintiff for removal from Section 8 housing based upon her race. 18 Although there is undisputed evidence that Defendant Sergeant Schwitters was Officer Bloxsom’s 19 supervisor at the time, there is no evidence in the record from which a jury could conclude that 20 Sergeant Schwitters endorsed Officer Bloxsom’s comment, was present at the time of the incident, 21 or even knew about the allegedly racist comments. There is no evidence from which a reasonable 22 juror could conclude that any of the individual Defendants were aware of the racist comments made 23 by Officer Bloxsom. 24 Finally, Plaintiff cites to another specific instance of allegedly racist conduct by Defendant 25 Officer Bittner. She provides deposition testimony from another case pending in district court, 26 Williams v. City of Antioch, C 08-2301 SBA. There, a named plaintiff, Mary Ruth Scott, an African- 27 American woman, testified that the CAT officers forcibly entered her home searched her home and 28 9 Defendants object to this testimony and move to strike the evidence on the grounds that it is hearsay under FRE 801, and that it is irrelevant due to the fact that Judge Illston declined to relate the two actions. The Court overrules both objections. 20 1 personal effects, refused to show her their warrant, told her to shut up and sit down and wait until 2 she was spoken to. Candappa Decl., Exh. 34, Mary Scott Depo at 120:23-25, 128:11-129:24, 139:4- 3 11, 144:12-25, 154-155, 197 12-23. During that incident, the plaintiff, Ms. Scott, alleges that 4 Officer Bittner told her “you people are always causing something in this neighborhood” (id., at 5 197:18-19) and “[y]ou people know how you people act. . . You guys are always causing problems 6 over here.” Id. at 199:23-200:1-25. For the Northern District of California United States District Court 7 Defendants argue that this incident is irrelevant to this case because the particular conduct in 8 the Williams case – an alleged illegal search – is not sufficiently similar to the conduct by CAT 9 alleged in this case. The Court is not persuaded by this argument. The CAT officers’ conduct need 10 not be identical in each alleged incident in order to be probative of discriminatory intent. As long as 11 a reasonable juror could conclude that the Officer Bittner discriminated against Section 8 housing 12 residents on account of their status as African-Americans, then the evidence can be used to show 13 discriminatory intent here. 14 Drawing all reasonable inferences in Plaintiff’s favor, the Court finds that a reasonable jury 15 could conclude that this statement of Defendant Officer Bittner – “you people” – was a racial 16 epithet, and not just a statement directed toward people, regardless of race or other suspect 17 classification, living in Section 8 housing in Antioch. 18 The Court finds that this incident of allegedly racist conduct, along with the evidence of 19 disparate impact, could support an allegation of discriminatory intent on the part of Defendant 20 Officer Bittner. The Court finds no evidence, however, that could support an inference of 21 discriminatory intent on the part of the remaining Defendants. 22 c. 23 Because the Court has concluded that there is some evidence that could support an inference Causation 24 of disparate impact and has found some disputed evidence of discriminatory intent on the part of 25 Officer Bittner, the Court next addresses the parties’ arguments with respect to causation. See 26 Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978). Plaintiff argues that there is sufficient evidence to 27 support her first through sixth claims for relief based upon a “concerted action” theory of liability. 28 Citing Johnson v. Duffy, Plaintiff argues that Defendants, by opening an investigation and turning 21 1 information and police reports over to HACCC10 set in motion a series of events, which the officers 2 should have known would result in the violation of her constitutional rights. Defendants argue that 3 Plaintiff seeks to impose liability against Defendants based on alleged constitutional violations 4 committed by HACCC. Defendants argue that Johnson v. Duffy is “inapplicable” due to the fact that 5 there is no “wrongful act” on the part of Defendants that set in motion a series of acts by others that 6 Defendants “kn[ew] or reasonably should have know[n] would cause others to inflict the 7 constitutional injury.” Defendants’ Reply at 6, citing Harris v. Roderick, 126 F.3d 1189 (9th Cir. 8 1997). For the Northern District of California United States District Court 9 As stated previously, the Court agrees with Defendants that there is no evidence of 10 discriminatory intent with respect to the Defendants other than Officer Bittner. The Court disagrees, 11 however, with Defendants regarding Office Bittner. The Court therefore turns to the evidence of 12 Officer Bittner’s conduct in order to determine whether Plaintiff has met her burden of presenting 13 facts that could provide a basis for holding Officer Bittner liable for equal protection violations in 14 connection with the termination of Plaintiff’s Section 8 housing voucher by HACCC. 15 The evidence is sufficient to support an inference that Officer Bittner was involved in the 16 investigation of Plaintiff by submitting the letter that was sent to Joanna Rodriguez of HACCC on 17 March 15, 2007. Although this act is arguably facially neutral, the Court must draw all reasonable 18 inferences in Plaintiff’s favor. Coupled with the specific evidence of alleged racially discriminatory 19 conduct above, a reasonable juror could find that Officer Bittner’s letter to HACCC was motivated 20 by racial animus and was, at least in part, the cause of the violation of her constitutional rights. 21 Under Johnson v. Duffy, “[t]he requisite causal connection can be established not only be some kind 22 of direct personal participation in the deprivation, but also by setting in motion a series of acts by 23 other which the actor knows or reasonably should know would cause others to inflict the 24 constitutional injury.” Id. at 743-44. 25 Accordingly, the Court finds that there are disputed issues of fact that preclude summary 26 adjudication on Plaintiff’s Equal Protection §1983 claim against the Officer Bittner. There is no 27 such evidence of discriminatory intent involving the remaining defendants, James Hyde, Corporal 28 10 At oral argument, Plaintiff clarified that none of her claims is based upon the individual officer Defendants’ testimony at her administrative hearing. 22 For the Northern District of California United States District Court 1 Steve Bias, Sergeant Mitchell Schwitters and Officer Dillard from which a jury could find 2 discriminatory intent. Defendants’ motion for summary adjudication with respect to the Equal 3 Protection claim against these defendants is GRANTED. Defendant Officer Desmond Bittner’s 4 motion, however, is DENIED. 5 2. Procedural Due Process (Claim 1) 6 Plaintiff argues that her procedural due process rights were violated by the Antioch 7 defendants based on their “collaboration with the HACCC” which deprived Plaintiff of due process 8 by “play[ing] a key role in ultimately denying Ms. Tuggles her right to a fair hearing.” Plaintiff’s 9 Opp. at 18. Plaintiff argues that her due process rights were violated when: 1) her hearing was too 10 late, i.e., it was held after she had been evicted from her home; 2) the Defendants produced 11 confidential juvenile records to HACCC for use at that hearing in violation of the law; and 3) her 12 rights at the hearing were violated when the Defendants refused to disclose the details of those 13 records to her so that she could adequately defend against the allegations against her. Plaintiff 14 argues at length that APD “violated numerous provisions of law for the express purpose of 15 compromising Ms. Tuggles’ right to a fair hearing.” Id. The Court will address each of Plaintiff’s 16 procedural due process arguments in turn. 17 With respect to Plaintiff’s first argument, the Court concludes that there is no evidence in the 18 record before the Court from which a jury could conclude that the particular Defendants named here, 19 Officers Hyde, Bias, Schwitters, Dillard and Bittner, had any involvement whatsoever in the timing 20 of Plaintiff’s hearing. HACCC was responsible for the timing of its own hearing, and Plaintiff has 21 presented no evidence to the contrary. Defendants’ motion for summary adjudication with respect to 22 procedural due process violations stemming from the timing of the hearing is therefore GRANTED 23 as to all Defendants. 24 Regarding the release of confidential juvenile records, and the testimony regarding those 25 records, the Court finds that this aspect of Plaintiff’s procedural due process claim is moot. Plaintiff 26 was given a hearing and as a result of the finding that her due process rights were violated, her 27 Section 8 benefits were reinstated. 28 Moreover, to the extent that Plaintiff bases her due process claim on violations of law as set forth in her seventh and eighth causes of action (violations of 42 U.S.C. §§ 1437d(q) based upon the 23 1 improper disclosure of juvenile records to HACCC and the refusal to release them to Plaintiff), 2 Plaintiff has voluntarily agreed to dismiss those claims. They therefore do not form the basis of a 3 due process violation against the remaining Defendants in this case. See Plaintiff’s Br. at n. 1, n. 19. 4 The Court also finds that the officers are immune from liability on the issue of the 5 Defendants’ conduct in providing the juvenile records to HACCC for use at the hearing and with 6 respect to the Defendants’ testimony at the hearing. See, supra, at 11-12 (qualified immunity for 7 release of juvenile records). Moreover, Defendants moved for summary adjudication on this ground, 8 and Plaintiff did not oppose Defendants’ motion with respect to qualified immunity. 9 11 For the Northern District of California United States District Court 10 12 13 Summary adjudication is therefore GRANTED as to Plaintiff’s procedural due process claims against all Defendants. 3. Conspiracy to Violate Civil Rights under 42 U.S.C. § 1985(3) and Failure to Prevent Violations of Civil Rights under 42 U.S.C. § 1986 (Claims 3 and 4) 42 U.S.C. § 1985(3) prohibits conspiracies that violate a person’s civil rights. In addition, 14 anyone who knows about imminent violations of section 1985 and can prevent or assist in the 15 prevention of such wrongs through the exercise of reasonable diligence and fails to do so, may be 16 liable to the injured person. 42 U.S.C. §1986. A claim under §1986 can only be stated if there is a 17 valid complaint under §1985. McCalden v. Cal. Library Ass’n., 955 F.2d 1214, 1223 (9th Cir. 1992). 18 Plaintiff cites United Steelworkers of America, Inc. v. Phelps Dodge Corp., 865 F.2d 1539, 19 1541 (9th Cir. 1989) (en banc) for the proposition that a conspiracy to violate civil rights can be 20 established by evidence of “a close working relationship with the participants, reliance on 21 information and instruction from a participant in furtherance of the conspiracy, and differential 22 treatment of the complainant.” Id. at 1545-46. 23 In United Steelworkers, the plaintiffs there were striking steel workers who brought a §1983 24 action against their employer, a mining company. Id. at 1540. The plaintiffs alleged that their 25 employer conspired with law enforcement to have them arrested and jailed. Id. The mining 26 company had an especially close relationship with the town’s law enforcement officials, was the 27 main employer of the small town, and had regular meetings and close radio communication with law 28 enforcement. Id. There was evidence that the mining company executives advocated for the plaintiffs’ arrest, as well as the incarceration of them after their arrest. Id. The case does not stand 24 1 for the broad proposition that private actors may be found to have been involved in a conspiracy 2 with law enforcement to violate civil rights if the parties have a close working relationship. The 3 narrow question before the court was whether the steelworkers had alleged enough evidence that 4 their employer was in fact a participant in a conspiracy (the existence of which was not in dispute). 5 Id. at 1541. Because the fact of the conspiracy was undisputed, and there was evidence that the 6 company had a close relationship, among other evidence of intent, the court concluded that summary 7 judgment was improper and reversed the finding of the district court. Id. The court explained 8 9 For the Northern District of California United States District Court 10 . . . there is abundant evidence of cooperative involvement between Phelps Dodge and law enforcement agencies. The question is, is there more? We believe there is. Here, the conspiracy is admitted for purposes of this appeal. This conspiracy is the “smoking gun.” The issue is whether the Steelworkers presented enough evidence for a reasonable jury to decide that Phelps Dodge helped pull the trigger. 11 Id. at 1546. The court concluded that the employer’s conduct went beyond mere cooperation with 12 law enforcement – the employer specifically asked for the strikers’ arrest to “keep them off the 13 streets” and specifically requested high bail. Id. The court explained that a reasonable juror could 14 conclude that this conduct evinced an intent to keep the strikers off of all streets (not just the streets 15 in front of the plant), and was an effort to have them punished for exercising their civil rights. Id. 16 With respect to the remaining Defendants other than Officer Bittner, the Court concludes that 17 there is insufficient evidence to sustain a conspiracy claim for the same reasons that there is 18 insufficient evidence to sustain a direct violation of Plaintiff’s civil rights. Because the Court has 19 concluded that Plaintiff has met her burden of providing facts to support a §1983 claim against 20 Defendant Bittner, the Court must look to his conduct in order to assess whether there is sufficient 21 evidence of a conspiracy with HACCC. The Court finds this to be a close question, but concludes 22 that there are genuine issues of fact that preclude summary judgment on these claims against 23 Defendant Bittner. 24 As to the Defendants other than Bittner, Plaintiff argues that there was a close working 25 relationship between Defendants and the HACCC. This is insufficient. In the present case, the 26 existence of the conspiracy to violate Plaintiff’s civil rights is disputed. There is, therefore, no 27 “smoking gun.” Id. at 1546. As evidence of this “close working relationship,” Plaintiff cites to the 28 evidence discussed above that Ms. Rodriguez and CAT had a close working relationship and collaborated in terminating vouchers of Section 8 recipients. Plaintiff cites to Officer Bittner’s 25 For the Northern District of California United States District Court 1 deposition testimony during which he stated that he probably met with Ms. Rodriguez on a daily 2 basis during the relevant period. Plaintiff also argues that Ms. Rodriguez’s testimony that she and 3 HACCC assumed the truth of CAT allegations and therefore conducted no further investigation as to 4 the truth or falsity of those matters, provides proof of a conspiracy to violate civil rights. Plaintiff 5 also relies upon the undisputed fact that Ms. Rodriguez destroyed the juvenile reports used to 6 terminate Plaintiff’s Section 8 voucher, thereby depriving Plaintiff of any opportunity to prepare for 7 her hearing. JSUF #26. Finally, Plaintiff points to the Antioch Police Department’s refusal to 8 release the relevant police reports to Plaintiff or her attorney in time for the Section 8 hearing. 9 Plaintiff argues that this conduct by HACCC, Ms. Rodriguez, and Antioch Police Department 10 constitutes sufficient evidence of a conspiracy to violate civil rights under Section 1985. The Court 11 is not persuaded by Plaintiff’s argument that this conduct and the existence of a close working 12 relationship is sufficient, in and of itself, to establish a conspiracy to violate civil rights against 13 Defendants other than Bittner. 14 However, the Court finds that a reasonable juror could conclude, based upon the evidence 15 before the Court discussed above with respect to the underlying §1983 violations, that a conspiracy 16 to violate civil rights existed under 42 U.S.C. §1985(3) between Officer Bittner and HACCC. 17 Although the evidence is weak, drawing all inferences in Plaintiff’s favor, as this Court must do on 18 summary judgment, a reasonable juror could conclude based on the close working relationship with 19 Officer Bittner and HACCC, the evidence of disparate impact on African-Americans, and the 20 evidence of racial animus on the part of Officer Bittner, that Officer Bittner and HACCC conspired 21 to discriminate against Plaintiff on the basis of race resulting in the loss of her Section 8 voucher and 22 her housing. For the same reasons the Court concludes that Plaintiff’s §1985(3) claim may proceed, 23 the §1986 may also proceed with respect to Defendant Bittner. Defendants’ motion for summary 24 adjudication on these claims is DENIED as to Defendant Bittner. The remaining Defendants’ 25 motion for summary adjudication on these claims is GRANTED. 26 27 28 4. Violation of the Fair Housing Act, 42 U.S.C. §§ 3604(b), 3617 (Claim 6) The Fair Housing Act, 42 U.S.C. §3604(b) prohibits discrimination on the basis of race in the terms, conditions, privileges in the rental of a dwelling or in the provision of related services or facilities. The Act applies to municipalities. Keith v. Volpe, 858 F.2d 467, 482 (9th Cir. 1988), cert. 26 1 denied, 493 U.S. 813 (1989). In addition, 42 U.S.C. §3617 makes it unlawful to “coerce, intimidate, 2 threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having 3 exercised or enjoyed, or on account of his having aided or encouraged any other person in the 4 exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this 5 title.” The Fair Housing Act is “broad and inclusive” in protecting against conduct that interferes 6 with housing rights and is to be given “generous construction.” Trafficante v. Metropolitan Life Ins. 7 Co., 409 U.S. 205, 209 (1972). Section 3617 deals with, among others, “situations in which the 8 fundamental inequity of a discriminatory housing practice is compounded by coercion, intimidation, 9 threat, or interference.” Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975). For the Northern District of California United States District Court 10 With respect to the first aspect of Plaintiff’s FHA claim under §3604(b) the Court concludes 11 that there is insufficient evidence to proceed against the Defendants in this case, the City of Antioch, 12 Antioch Police Department and individual APD Officer Defendants, other than Officer Bittner, 13 under a “disparate treatment” theory.11 The claim of disparate treatment or “intentional 14 discrimination” fails under the burden shifting analysis that is applied in these cases. See Gamble v. 15 City of Escondido, 104 F.3d 300 (9th Cir. 1997) (applying Title VII discrimination analysis in 16 examining Fair Housing Act discrimination claims; plaintiff can establish FHA discrimination claim 17 under a theory of disparate treatment or disparate impact). Plaintiff presents little evidence of 18 disparate treatment or intentional discrimination, other than one allegedly racist remark made to a 19 plaintiff in another case by Defendant Bittner. Plaintiff has presented no evidence of intentional 20 discrimination with respect to the remaining Defendants. Defendants respond with legitimate 21 nondiscriminatory reasons for their decision to open an investigation of Plaintiff – i.e., that Plaintiff 22 was allegedly in violation of the “Family Obligations” that are required in order to maintain Section 23 8 vouchers. Defendants have satisfied their burden of coming forward with evidence of a 24 nondiscriminatory reason for their conduct. It is then Plaintiff’s burden to provide sufficient 25 evidence to satisfy the third prong of the analysis – proving by a preponderance of the evidence that 26 the Defendants’ proffered nondiscriminatory reason was mere pretext for racial discrimination. 27 28 11 This claim fails for another reason as well. Plaintiff has provided no evidence to the Court that these Defendants were in any position to rent housing to Plaintiff or to set the terms and conditions of rental housing. Plaintiff’s suggestion that the City of Antioch created the “Community Action Team” for discriminatory reasons or in order to reduce the number of African-Americans living in Section 8 housing in Antioch is not supported by admissible evidence. 27 1 Gamble, 104 F.3d at 305. Plaintiff has failed to do so here. Plaintiff has proffered no evidence that 2 would suggest that the City of Antioch or the Police Officer Defendants opened an investigation as 3 mere pretext for discriminating against African-Americans, with the exception of Defendant Bittner. 4 Because there is some, albeit weak, evidence of racial animus in the record with respect to 5 Defendant Bittner, and he was involved in the decision to refer Plaintiff to HACCC for Section 8 6 voucher termination proceedings, this claim could proceed against Defendant Bittner under a 7 “disparate treatment” theory of liability. 8 For the Northern District of California United States District Court 9 Disparate treatment is not the only means by which a Plaintiff may proceed with a claim under the FHA, however. In addition to providing evidence of intentional discrimination, a plaintiff 10 may establish a violation of the FHA by presenting evidence of disparate impact. Unlike the 11 standards discussed above that are applied in an Equal Protection analysis, in order to establish a 12 prima facie case of housing discrimination in a disparate impact case, Plaintiff is not required to 13 produce evidence of discriminatory intent. To establish a prima facie disparate impact case under 14 the FHA, a plaintiff must establish that “the defendant’s actions had a discriminatory effect.” Pfaff 15 v. U.S. Dep’t. of Housing and Urban Development, 88 F.3d 739, 745 (9th Cir. 1996) (quoting Keith 16 v. Volpe, 858 F.2d 467, 482 (9th Cir. 1988), cert. denied, 493 U.S. 813 (1989). In Pfaff, the Ninth 17 Circuit, by analogy to an age discrimination case, established the following elements of a prima 18 facie case under a disparate impact theory under the FHA: “(1) the occurrence of certain outwardly 19 neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a 20 particular type produced by the defendant’s facially neutral acts or practices.” Id. (internal 21 quotations and citations omitted). Proof of discriminatory intent is not required under a 22 discriminatory impact theory. Id. at 745-46. Plaintiff must prove, however, “the discriminatory 23 impact at issue; raising an inference of discriminatory impact is insufficient.’” Id. at 746 (quoting 24 Palmer v. United States, 794 F.2d 534, 538-39 (9th Cir. 1986). 25 Here, Plaintiff has produced some, albeit weak, evidence of discriminatory impact on a 26 protected class – African-Americans. Plaintiff has also produced evidence that APD threatened 27 Plaintiff’s landlord with legal action, and was actively involved in seeking the termination of 28 Plaintiff’s Section 8 voucher. Defendants make the same arguments in support of their motion for summary adjudication of this claim as they have raised in support of their motion for summary 28 For the Northern District of California United States District Court 1 adjudication of the §1983 claims – that there is no evidence whatsoever of discrimination based 2 upon race. Defendants argue that they merely investigated Plaintiff and her family due to Section 8 3 “Family Obligations” violations and that it was HACCC’s decision alone to terminate Plaintiff and 4 her family from the Section 8 program. Because a prima facie case in a Fair Housing Act claim, 5 unlike a §1983 claim, does not require proof of discriminatory intent, Plaintiff has made her required 6 showing of providing some evidence of disparate impact – assuming that these Defendants are the 7 proper Defendants for a §3604 claim. 8 Nonetheless, the Court is not convinced that these Defendants are the proper Defendants for 9 this claim. This question of whether a §3604(b) claim may proceed against individual police officer 10 defendants who are not alleged to have been in the business of providing housing, or alleged to have 11 had the authority to make housing unavailable to Plaintiff – is not addressed by the parties in their 12 briefs. Plaintiff provides no evidence, nor does she allege, that the individual Defendants in this 13 case were in any position of authority to grant or remove her housing (as was the case with the 14 HACCC Defendants, for example). See e.g., Meadowbriar Home for Children Inc. v. Gunn, 81 F.3d 15 521, 531 (5th Cir. 1996) (“It is axiomatic that for an official to make a dwelling unavailable, that 16 official must first have the authority and power to do so. In other words, the official must be in a 17 position to directly effectuate the alleged discrimination.”); Jones v. Office of the Comptroller of the 18 Currency, 983 F.Supp.197, 202 (D.C. Cir. 1997) (reviewing case law under §3604 and noting that 19 “In all of these cases, however, the entity sued for alleged discrimination was an actor directly 20 involved in providing housing or providing services . . . that are directly connected to helping people 21 acquire housing.”). Accordingly, without further guidance from the parties on this issue and in the 22 absence of any controlling authority, the Court is persuaded by the plain language of the statute and 23 the authorities cited above, which suggest that in order to be liable under §3604(b), these Defendants 24 must have at least been in a position of authority as it relates to the rental or sale of housing. 25 Plaintiff has produced no evidence that Defendants provided housing or housing-related services, 26 nor has she provided evidence that Defendants had the authority to make housing unavailable to her 27 or anyone else. Accordingly, Defendants’ motion for summary adjudication as to any claim 28 premised on §3604 is GRANTED as to all Defendants, including Officer Bittner. 29 For the Northern District of California United States District Court 1 Finally, Plaintiff also includes in her sixth cause of action, a claim based upon §3617, a so- 2 called “retaliation claim” under the Fair Housing Act. This provision makes it a civil offense for 3 individuals to intimidate others who are exercising the rights guaranteed under the Fair Housing Act 4 (“FHA”). 42 U.S.C. § 3617. This provision of the Fair Housing Act is not directed toward only 5 defendants who were in a position to rent or sell property. Plaintiff, however, cites no case authority 6 in support of her argument that this provision may be applied to the alleged conduct of Defendants 7 here. While Plaintiff is not explicit in her brief, her argument appears to be the following: 8 Defendants, by initiating proceedings against her and sending a threatening letter to her landlord, 9 threatened or interfered with her exercise or enjoyment of rights granted or protected by the FHA. 10 Defendants reiterate their argument that none of the Defendants’ conduct was discriminatory in any 11 way. Unlike a disparate impact claim under the FHA (discussed above), in order to state a claim for 12 retaliation or interference with protected FHA rights, a Plaintiff must provide evidence of intent to 13 discriminate. See e.g., Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991) (violations of 14 §3617 must be based, at least in part, on an intent to discriminate). Because the Court has concluded 15 that Plaintiff fails to meet this burden with respect to all Defendants other than Defendant Bittner, 16 the Court GRANTS summary adjudication on this claim with respect to all Defendants, with the 17 exception of Officer Bittner.12 18 19 For the reasons stated above with respect to the §1983 claim based upon Equal Protection, the Court DENIES Defendant Bittner’s motion with respect to the Fair Housing Act retaliation claim 20 21 22 23 24 25 26 27 28 12 The Court notes that it is questionable whether this claim applies to the conduct at issue here – a letter to a housing authority initiating investigative proceedings regarding alleged housing violations. There is a dearth of case law under §3617, but the Court could find no case addressing the factual situation that is presented here – municipal defendants whose conduct consisted of initiating proceedings for potential violations of housing regulations. Most of the cases under §3617 address retaliation based upon a plaintiff’s exercise of rights under the FHA or the assistance of others seeking to pursue their housing rights under the FHA. The few cases that address the question of whether a claim may be brought by plaintiffs who claim that their enjoyment of their home was disrupted by defendants’ retaliatory or interfering conduct are unclear regarding the level of intimidation, coercion or interference that is required in order to maintain a claim under § 3617. See Egan v. Schmock, 93 F.Supp.2d 1090, 1093 (N.D. Cal. 2000) (allowing §3617 claim to proceed in case not involving the sale or rental of housing; claim may proceed on the basis of neighbor defendants’ discriminatory conduct designed to drive plaintiffs out of their home); People Helpers, Inc. v. City of Richmond, 789 F.Supp.725 (E.D. Va. 1992) (finding that conduct which did not include violence or physical coercion could, nonetheless, violate § 3617). Drawing all inferences in Plaintiff’s favor, it is arguable that at least with respect to Officer Bittner, the intent of his conduct, if motivated by racial animus “was to drive [Plaintiff] out of [her] home.” Egan at 1093. 30 1 under § 3617. The motion is GRANTED with respect to the remaining Defendants as to both the 2 §3617 and §3604 Fair Housing Act claims. 3 5. Violation of 42 U.S.C. § 2000d (Title VI of the Civil Rights Act of 1964) (Claim 5) 4 For the Northern District of California United States District Court 5 Plaintiff’s fifth cause of action asserts a violation of Title VI of the Civil Rights Act of 1964, 6 42 U.S.C. § 2000d, which provides: “No person in the United States shall, on the ground of race, 7 color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected 8 to discrimination under any program or activity receiving Federal financial assistance.” In 9 Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that private parties may not 10 invoke Title VI regulations to obtain redress for discrimination based upon disparate impact because 11 Title VI itself prohibits only intentional discrimination. The entity involved must be engaged in 12 intentional discrimination and be the recipient of federal funding. Rodriguez v. California Highway 13 Patrol, 89 F.Supp.2d 1131, 1139 (N.D.Cal.2000). A Title VI claim cannot be asserted against an 14 individual defendant because the individual is not the recipient of the federal funding. Folkes v. New 15 York College of Osteopathic Medicine of New York, 214 F.Supp.2d 273, 292 (E.D.N.Y.2002). 16 Here, Plaintiff asserts this claim against the City of Antioch and the Antioch Police 17 Department, not against the individual officer Defendants. Because the Court has concluded that 18 Plaintiff has failed to provide evidence of discriminatory intent on the part of the municipal 19 Defendants, the only potential basis for liability against these Defendants would be based upon an 20 agency theory. This, Plaintiff cannot do. Liability under Title VI, which parallels that of Title IX, 21 cannot be imputed to institutions based on the actions of their employees. Cf. Gebser v. Lago Vista 22 Independent Sch. Dist., 524 U.S. 274, 287-88 (1998) (school district cannot be held liable for 23 harassment of student by teacher based on principles of constructive notice or vicarious liability 24 under Title IX.) 25 Accordingly, for the same reasons discussed previously, the Court concludes that Plaintiff 26 has failed to provide sufficient evidence of discriminatory intent on behalf of all Defendants, with 27 the exception of Officer Bittner. Plaintiff’s fifth claim, however, is not asserted against Officer 28 Bittner. And the municipal Defendants cannot be held liable on a respondeat superior theory of 31 For the Northern District of California United States District Court 1 liability for the alleged conduct of Officer Bittner under §2000d. Summary Judgment is therefore 2 GRANTED on the fifth claim as to all Defendants. 3 D. 4 Plaintiff asserts her §1983 claims against the City of Antioch, Antioch Police Department 5 and Defendant Hyde on the grounds that the City, through its police department, created the CAT 6 (Community Action Team), “which emphasized investigation of Section 8 Households, including 7 Section 8 program participants’ compliance with Section 8 program requirements.” SAC at ¶ 55. 8 Plaintiff alleges that the creation and implementation of this team violated Plaintiff’s constitutional 9 rights by effectively seeking out Section 8 participants, and conducting unlawful searches of their 10 homes, as well as threatening Plaintiff’s landlord in an effort to have her evicted and causing the 11 HACCC to terminate her Section 8 benefits, all on the basis of her race. As explained above, 12 Plaintiff argues that the Defendants’ unlawful policies and practices result in a disproportionate 13 impact upon the African-American community, in violation of the Equal Protection Clause. Plaintiff 14 argues that the Defendants Bias, Bittner, Dillard and Schwitters believed that their actions would not 15 be monitored, investigated, or result in disciplinary action by their supervisors and would instead be 16 condoned. Plaintiff argues that the actions of these officers can therefore be attributable to the City 17 of Antioch under Monell v. Dep’t of Social Services of the City of New York, 436 U.S. 658 (1978). 18 The Court finds that Plaintiff’s §1983 claim must fail because Plaintiff has failed to present 19 evidence that could support a finding of a custom, practice or policy of the city of Antioch that has 20 caused a violation of Plaintiff’s constitutional rights. Monell, 436 U.S. at 694. Rather, Plaintiff has 21 presented sufficient evidence to proceed under §1983 against one individual police officer 22 Defendant, Officer Bittner. Municipal Liability for § 1983 Claims (Claim 2) 23 In Monell, the Supreme Court set forth a two-part analysis regarding when municipal liability 24 under §1983 can be established. Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986). The first 25 part of Monell involves the Supreme Court’s holding that actions may be brought against 26 municipalities under 42 U.S.C. § 1983 for deprivations of federal rights. Id. The second part of the 27 opinion recognizes a limitation on this right and holds that municipalities cannot be liable under § 28 1983 under a respondeat superior theory. Id. In that part of the opinion, the Supreme Court established the “official policy” requirement – that “municipal liability is limited to actions for 32 1 which the municipality is actually responsible.” Id. at 479. In Pembaur v. City of Cincinnati, the 2 Supreme Court held that: 3 4 a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body – whether or not that body had taken similar action in the past or intended to do so in the future – because even a single decision by such a body unquestionably constitutes an act of official government policy. 5 6 For the Northern District of California United States District Court 7 Id. at 480 (citations omitted). Under Monell, a municipality cannot be held liable for constitutional injuries inflicted by its 8 employees on a theory of respondeat superior. Monell, 436 U.S. at 691. “Instead, it is when 9 execution of a government’s policy or custom, whether made by its lawmakers or by those whose 10 edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as 11 an entity is responsible under 1983.” Id. at 694. 12 A plaintiff seeking to establish municipal liability under section 1983 may do so in one of 13 three ways: 1) the plaintiff may demonstrate that a municipal employee committed the alleged 14 constitutional violation “pursuant to a formal governmental policy or longstanding practice or 15 custom which constitutes the standard operating procedure of the local governmental entity;” 2) the 16 plaintiff may demonstrate that the individual who committed the constitutional violation was an 17 official with “final policy-making authority and that the challenged action itself thus constituted an 18 act of official government policy;” or 3) the plaintiff may demonstrate that “an official with final 19 policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for 20 it.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 21 The creation of the CAT team and the policies governing its conduct are not sufficient to 22 give rise to municipal liability under Monell because they do not establish an unconstitutional 23 policy. Nor does the single incident of allegedly racist conduct on the part of Officer Bittner provide 24 sufficient evidence to impose municipal liability here. As the Supreme Court stated: 25 As the Supreme Court stated: 26 27 28 Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise, the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the “policy” and the constitutional deprivation. 33 1 City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Absent a formal government policy 2 that is unconstitutional, Plaintiff here must demonstrate the existence of a “longstanding practice or 3 custom” of discrimination against African-American Section 8 housing residents. Trevino, 99 F.3d 4 at 918. As the Ninth Circuit explained in Trevino, 5 7 The custom must be so persistent and widespread that it constitutes a permanent and well-settled city policy. . . . Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy. 8 Id. In Trevino, the Ninth Circuit affirmed summary judgment in favor of the defendant municipality 9 where the plaintiff alleged that the city council had a custom of paying officers’ punitive damages in 10 excessive force cases. Id. at 916. The court found that the evidence fell “far short” of establishing a 11 widespread custom, for the purposes of Monell, where the city council had paid officers’ punitive 12 damages in eleven or twelve cases while the action was pending but in no cases up to the date on 13 which the excessive force was allegedly used. Id. For the Northern District of California United States District Court 6 14 Here, Plaintiff has failed to provide evidence that Officer Bittner committed the alleged 15 violations of Plaintiff’s constitutional rights pursuant to a “longstanding practice or custom which 16 constitutes the standard operating procedure” of the Antioch Police Department’s CAT team. 17 Monell, supra. The evidence discussed above regarding the creation of CAT, CAT’s close 18 relationship with HACCC, as discussed previously, are facially neutral as they target all Section 8 19 housing recipients, regardless of race. One incident involving allegedly racist conduct on the part of 20 one CAT officer (Defendant Bittner) provides insufficient evidence for a jury to consider whether 21 the City of Antioch, through Officer Bittner, had a widespread custom involving the investigation of 22 African-American Section 8 tenants such that the conduct “had become a traditional method of 23 carrying out policy.” Trevino, supra, at 918. 24 25 Defendants’ motion for summary judgment with respect to Plaintiff’s second claim under Monell, supra, is GRANTED as to all Defendants. 26 D. 27 Plaintiff’s tenth through seventeenth claims allege various violations of state law. The 28 Plaintiff’s State law claims (Claim 10-17) claims are as follows: “Breach of mandatory duty” (Claim 10), “respondeat superior” (Claim 11); intentional infliction of emotional distress (Claim 12); negligence (Claim 13); abuse of process 34 For the Northern District of California United States District Court 1 (claim 14); malicious prosecution (Claim 15); housing discrimination (claim 16), and race 2 discrimination (claim 17). Defendants argue that there can be no liability under any state theory 3 because the Defendants are immune from liability by several state law immunities. The Court will 4 address each of Plaintiff’s state law claims and whether the individual Defendants are shielded by 5 state immunities. 6 1. Breach of Mandatory Duties Cal. Gov’t. Code §815.6 (Claim 10) 7 California Government Code §815.6 provides as follows: “Where a public entity is under a 8 mandatory duty imposed by an enactment that is designed to protect against the risk fo a particular 9 kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to 10 discharge the duty unless the public entity establishes that it exercised reasonable diligence to 11 discharge the duty.” Plaintiff’s tenth claim under this statute is based upon the allegation that 12 Defendants breached various duties owed to her under several enactments, including 42 U.S.C. 13 §1983, California Constitution, article I, section 1 (right to privacy), the Fourth Amendment to the 14 United States Constitution, and the Federal Fair Housing Act, 42 U.S.C. §§3604, 3617. Liability 15 may be imposed on a public entity pursuant to section 815.6 if three factors are met: “‘(1) an 16 enactment must impose a mandatory, not discretionary, duty; (2) the enactment must intend to 17 protect against the kind of risk of injury suffered ...; and (3) breach of the mandatory duty must be a 18 proximate cause of the injury suffered.” ’ MacDonald v. California, 230 Cal.App.3d 319, 327 (1991) 19 (quoting California v. Superior Court, 150 Cal.App.3d 848, 854 (1984)). For purposes of section 20 815.6, an enactment includes a constitutional provision, statute, ordinance, or regulation. See Cal. 21 Gov’t Code § 810.6. A regulation is defined as “a rule, regulation, order or standard, having the 22 force of law, adopted by an employee or agency of the United States pursuant to the federal 23 Administrative Procedures Act.” Cal. Gov’t Code § 811.6. “A mandatory duty must impose an 24 affirmative duty to take action or carry out measures.” Bowden v. Redwood Institute for Designed 25 Education, Inc., 1999 WL 138889. *6 (N.D. Cal. March 9, 1999)(citing Clausing v. San Francisco 26 Unified School Dist., 221 Cal.App.3d 1224, 1240 (1990)). The assertion of a right or prohibition 27 “without specific rules and guidelines for implementation of that right or prohibition cannot create a 28 mandatory duty.” See id. The Court will address each of Plaintiff’s theories of liability contained in Claim 10. 35 For the Northern District of California United States District Court 1 First, Plaintiff cites to the Fourteenth Amendment to the U.S. Constitution and Article I, Section 7 of 2 the California Constitution – rights to due process and equal protection of the laws. Those claims 3 are addressed above. See supra 12-23. In short, of these federal claims, Plaintiff can only continue 4 with her equal protection challenge against Defendant Bittner. The §815.6 claim against all 5 Defendants except Bittner for violations of these constitutional provisions is therefore dismissed. 6 Plaintiff has cited no case in support of the proposition that an individual may be liable under 7 §815.6, which explicitly covers entity, not individual, liability. See Bradford v. State of California, 8 3 Cal.App.3d 16, 19 (1974) (“The California Tort Claims Act of 1963 . . . clearly differentiates 9 between entity liability (Gov. Code, § 820 et seq) and employee liability (Gov. Code §815 et seq) . . 10 . . Section 815.6 provides a basis of direct entity liability entirely independent of the derivative 11 liability created in Section 815.2"). Defendants’ motion with respect to this claim is therefore 12 GRANTED as to Defendant Bittner. 13 Plaintiff also cites to the “Fourth Amendment to the United States Constitution and Article I, 14 Section I of the California Constitution – right to privacy.” SAC ¶83(b). Plaintiff offers no 15 evidence in support of a claim based upon the Fourth Amendment. Summary adjudication on that 16 claim is therefore GRANTED as to all Defendants. As to the right to privacy claim based upon the 17 California Constitution, the Court concludes that this provision is a declaration of the right to 18 privacy; it does not create a mandatory duty under California government Code section 815.6. See 19 Clausing, supra at 1240 (“Although citizens have a private cause of action against public entities for 20 violation of the right to privacy, no case has ever held that California Constitution, article I, section 21 1, imposes a mandatory duty on public entities to protect a citizen’s right to privacy.”) (italics in 22 original). Moreover, the Court finds that Defendants are shielded from liability by the litigation 23 privilege, §47(b). See infra (citing Jacob B. v. County of Shasta, 40 Cal.4th 989, 955 (2007). 24 Plaintiff also repeats her federal claims under the Fair Housing Act, 42 U.S.C. §3604 and 25 3617. Those claims are addressed above. See supra at 26-29. Again, in short, Plaintiff can only 26 proceed with her §3617 claim against Bittner, assuming this claim is properly contained in a breach 27 of mandatory duties claim under state law. However, Plaintiff has cited no case in support of the 28 proposition that an individual defendant may be held liable under section 815.6, which, by its terms, 36 For the Northern District of California United States District Court 1 explicitly refers to entity liability. The motion for summary adjudication with respect to this claim is 2 therefore GRANTED as to all Defendants. 3 With respect to Plaintiff’s claims based upon violations of state law due to the release of the 4 confidential juvenile records to the Housing Authority, Plaintiff has agreed to dismiss those claims. 5 See supra at 1 (citing Plaintiff’s Opp. at n.1, n. 19). Finally, Plaintiff lists claims in her tenth cause 6 of action that are based upon “the right to be free from discrimination on the basis of race, color or 7 ethnic group identification in any program or activity that receives benefits from state financial 8 assistance.” SAC ¶ 84(f) and (g). Plaintiff has cited no evidence to support those claims. 9 Furthermore, it is doubtful that this claim creates “an affirmative duty on the part of a government 10 agency to perform some act” such that it could constitute a mandatory duty under §815.6. Clausing, 11 221 Cal.App.3d at 1239. Defendants’ motion for summary adjudication on these claims is therefore 12 GRANTED. 13 14 2. Repondeat Superior liability (Claim 11) With respect to Plaintiff’s eleventh claim for relief, “respondeat superior liability” under 15 Government Code § 815.2 against the City of Antioch and the Antioch Police Department, it is not 16 entirely clear what conduct forms the basis of this claim. The Court assumes that it relates to all of 17 Plaintiff’s state law claims 10-17, including the alleged breaches of mandatory duties alleged in 18 Claim 10. Unlike the rule against municipal liability under federal law set out Monell, supra, 19 California imposes liability on municipalities under the doctrine of respondeat superior. Robinson 20 v. Solano County, 278 F.3d 1007, 1016 (9th Cir. 2002). Section 815.2(a) provides that a city is liable 21 for acts and omissions of its employees under the doctrine of respondeat superior to the same extent 22 as a private employer. Under California law, a city’s immunity depends upon whether the officers 23 are immune. Cal. Gov.Code § 815.2(b). 24 Defendants argue that even if there was a disputed material fact that Plaintiff’s rights under 25 California law were violated, the motion for summary judgment/adjudication should be granted 26 because the Defendants are shielded by several state law immunities. See Defendants’ 27 Memorandum of Points and Authorities in Support of Motion for Summary Judgment/Summary 28 Adjudication (“Defendant’s Memorandum”) at 21. 37 1 The Court will next address whether state immunities shield Defendants from liability. The 2 Court finds that three of the five grounds for immunity cited by Defendants do apply to the conduct 3 at issue in this case. Specifically, the Court finds that the individual Antioch Police Officers are 4 immune under the litigation privilege of Cal. Civ. Code § 47(b) and Cal. Gov. Code § 821.6, and 5 therefore, the City of Antioch is immune from liability pursuant to Cal. Gov. Code § 815.2(b). The 6 Court will address each of the applicable state immunities in turn. 7 a. Defendant Antioch Police Officers are immune from liability pursuant to the litigation privilege of Cal. Civ. Code § 47(b) 8 For the Northern District of California United States District Court 9 According to California Civil Code section 47(b), a privileged publication or broadcast made 10 . . . “in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding 11 authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and 12 reviewable pursuant to [certain provisions of California law].” Cal. Civ. Code § 47(b). Defendants 13 argue that APD officers are immune from liability on the grounds that the disclosures of juvenile 14 information at issue fit under the litigation privilege of section 47(b). See Defendants’ 15 Memorandum at 21. Specifically, the Defendants argue that the disclosures fall within the litigation 16 privilege of section 47(b) because they were made “to further an investigation of a potential 17 violation of a public welfare program within the context of an administrative proceeding.” Id. 18 Although not argued in their briefs, the Defendants also maintain that the litigation privilege applies 19 to the officer Defendants’ conduct in this case, beyond just the disclosure of juvenile records: 1) the 20 letter to HACCC initiating the investigation of Plaintiff and; 2) he release of information to the 21 HACCC for use at the hearing. The Court agrees. 22 According to the Supreme Court of California, “the [litigation] privilege ‘applies to any 23 publication required or permitted by law in the course of a judicial proceeding to achieve the objects 24 of the litigation, even though the publication is made outside the courtroom and no function of the 25 court or its officers is involved.’” Jacob B. v. County of Shasta, 40 Cal.4th 989, 955 (2007) (quoting 26 Silberg v. Anderson, 50 Cal.3d 205, 212 (1990)). Section 47 applies to all torts except malicious 27 prosecution and applies to any communication (1) made in a judicial or quasi-judicial proceeding, 28 (2) by litigants or other participants authorized by law, in or out of court, (3) to achieve the objects 38 1 of litigation and (4) that has some connection or logical relation to the action. Silberg v. Anderson, 2 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 (1990). For the Northern District of California United States District Court 3 A central purpose of section 47 is to promote judicial efficiency through encouraging full 4 communication with the courts. Id. (citing Flatley v. Mauro, 39 Cal.4th 299, 322 (2006)). The 5 California Supreme Court applies the privilege broadly in furtherance of this purpose. Id. (citing 6 Rusheen v. Cohen, 37 Cal.4th 1048, 1063 (2006)). For example, courts have held that the privilege 7 extends to causes of action based on the constitutional right to privacy, Jacob B., 40 Cal.4th at 955, 8 as well as civil actions based on perjury. Rusheen, 37 Cal.4th at 1063. 13 9 In Jacob B., the California Supreme Court held that a letter written in connection with a 10 family law proceeding “fit[] squarely” within the litigation privilege because it was made in the 11 context of a judicial proceeding–there, a pending case–and the letter furthered the objectives of the 12 litigation since the information was relevant to a family law visitation dispute. Jacob B., 40 Cal.4th 13 at 956. The court rejected the plaintiff’s claim that defendants had violated his California 14 constitutional right to privacy. Id. at 952. The court held that “[c]onsistent with our frequent 15 statement that the privilege protects against all tort causes of action, except for malicious 16 prosecution, including those alleging invasion of privacy,” the privilege also extends to 17 communications that might be deemed confidential. Id. at 952, 957-59. 18 Like in Jacob B., the Court finds that the letter to HACCC initiating the proceedings and the 19 subsequent disclosures of records were in connection with an administrative proceeding regarding a 20 potential violation of a public welfare program. See 40 Cal.4th at 956. The letter to HACCC and 21 subsequent disclosures were made as part of an investigation leading up to a HACCC proceeding or 22 revocation of Plaintiff’s Section 8 benefits. In addition, the letter to HACCC and disclosures to 23 HACCC were relevant to the ultimate objectives of those proceedings. Therefore, the Court finds 24 that the litigation privilege is applicable in the instant context, even assuming arguendo that the 25 Defendants did violate the confidentiality provisions of the California Welfare and Institutions Code 26 as Plaintiff alleges. See SAC at 8; See 40 Cal.4th at 952, 957-59. Accordingly, the Court concludes 27 28 13 But see Komarova v. National Credit Acceptance, Inc. 95 Cal.Rptr.3d 880, 889 (Cal.App. 1 Dist. 2009) (explaining that the privilege does not prevent criminal and State Bar prosecutions under statutes that are “more specific than the litigation privilege and would be significantly or wholly inoperable if [their] enforcement were barred when in conflict with the privilege”) (citing Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1246 (2007)). 39 1 that the APD officers are immune from liability pursuant to the litigation privilege of section 47(b). 2 The privilege does not, however, apply to Defendants’ letter to Plaintiff’s property owner, Mr. 3 Almodovar. Viewing the facts in a light most favorable to Plaintiff, that letter threatening 4 compliance was not made in furtherance of the administrative proceedings. However, there is no 5 evidence that any damage was caused by the letter to Plaintiff’s landlord. Therefore, even without 6 state immunity, there can be no liability as a result of that conduct. 7 b. Defendant Antioch Police Officers are immune from liability pursuant to Cal. Gov. Code § 821.6 8 For the Northern District of California United States District Court 9 According to California Government Code section 821.6, “[a] public employee is not liable 10 for injury caused by his instituting or prosecuting any judicial or administrative proceeding within 11 the scope of his employment, even if he acts maliciously and without probable cause.” Cal. Gov. 12 Code. § 821.6. Defendants argue that the officers are immune from liability pursuant to section § 13 821.6. The Court agrees. “California courts construe section 821.6 broadly in furtherance of its 14 purpose to protect public employees in the performance of their prosecutorial duties from the threat 15 of harassment through civil suits.” Gillan v. City of San Marino, 147 Cal.App.4th 1033, 1048 (citing 16 Ingram v. Flippo, 74 Cal.App.4th 1280, 1293 (1999)). Courts have explained that the statute is 17 designed to protect public employees from malicious prosecution actions – i.e., to provide immunity 18 where a public employee “initiates or procures an arrest and prosecution under lawful process but 19 with malicious motive and without probable cause.” Id. at 1043 (emphasis in original). Moreover, 20 the statute not only immunizes the formal acts of filing or prosecuting a judicial or administrative 21 action, but also extends to actions taken in preparation of such formal proceeding. Id. at 1048. 22 In Gillian, the plaintiff brought a civil action against the city and police officers, alleging 23 violation of various civil rights statutes, defamation, and intentional infliction of emotional distress 24 in connection with the plaintiff’s arrest for alleged sexual molestation of a minor. 147 Cal.App.4th 25 1033 (1999). In that case, a jury had previously determined that the plaintiff’s arrest had been 26 without probable cause. Id. at 1041, 1050. On appeal, the court held that pursuant to section 821.6, 27 the court need not even address the issue of whether the defendants acted properly under Penal Code 28 section 849, subdivision (b)(1): “regardless of whether they acted properly under the statute, the defendants are immune from liability made in connection with the investigation.” Id. at 1050. 40 1 2 subsequent disclosures to HACCC were made pursuant to the preparation of a formal HACCC 3 proceeding regarding the termination of Plaintiff’s Section 8 benefits and therefore qualifies as 4 “instituting or prosecuting any judicial or administrative proceeding within the scope of . . . [public] 5 employment.” See Cal. Gov. Code. § 821.6. For the Northern District of California 6 United States District Court From the evidence before the Court, the letter initiating proceedings against Plaintiff and the Defendants were authorized to engage in an investigation of Section 8 Housing voucher 7 program participants. Section 8 voucher program participants must abide by a list of “Family 8 Obligations,” including that “members of the family may not engage in drug-related criminal 9 activity, or violent criminal activity, or other criminal activity that threatens the heath, safety or right 10 to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the 11 premises.” JSUF # 6; see also CFR 24 § 982.551(1) (crime by household members). 12 First, in regard to the disclosures made to the HACCC – the agency which conducts the 13 administration proceedings for violation of “Family Obligations” – the Court finds that the 14 disclosures can be properly characterized as an attempt to enforce the relevant statutory obligations 15 – one of the officers’ duties. See Defendants’ Memorandum at 22. 16 With regard to the letter to the landlord, Defendants allege that he was informed in hopes of 17 “work[ing] with” him to “gain immediate compliance regarding the listed issues and avoid criminal 18 abatement and civil litigation.” JSUF #30. The officers told the landlord that he would not be 19 considered an “innocent owner” in future actions if he failed to take “reasonable steps to prevent 20 ‘any future unlawful use’ of his property.’” Defendants’ Memorandum at 5; JSUF #31. Although it 21 is arguable that this letter was written by Defendants in an effort to gain compliance with the 22 “Family Obligations,” the Court must view the evidence in a light most favorable to the Plaintiff. 23 Defendants have not argued, nor is there evidence in the record to support the position that the 24 landlord was in a position to initiate HACCC proceedings. There is no evidence in the record that 25 the landlord was involved in conducting the administrative proceedings at all. Therefore 26 communications that precede any administrative hearing and are directed to a party not involved in 27 those proceedings would not seem to be covered by the litigation privilege. Defendants cite to no 28 authority, and the Court has found none, that supports the proposition that the litigation privilege is so broad as to cover such communications. 41 For the Northern District of California United States District Court 1 The court finds that the letter to HACCC initiating proceedings and disclosures to HACCC 2 are covered under section 821.6, as they were clearly part of a HACCC proceeding. As in Gillan, 3 regardless of whether the officers acted properly under the statutes referenced by Plaintiffs, they are 4 immune from liability because the disclosures were made in connection with preparation for a 5 formal HACCC proceeding. See 147 Cal.App.4th at 1050. As the provision applies even where the 6 public employee is acting maliciously and without probable cause, Defendants are immune under 7 section 821.6 as to the limited conduct at issue here – a letter to the HACCC and subsequent 8 disclosures at the administrative hearing – even assuming arguendo that Plaintiff’s contention is 9 correct, that the Antioch Police Department does “unfairly and unlawfully target[], profil[e] and 10 discriminat[e] against households participating in the Section 8 Housing Choice Voucher Program, 11 and African-Americans who live in the City of Antioch.” See SAC, ¶ 38.14 12 c. Whether state tort liability can attach for bringing a potential violation of welfare program benefits to the attention of local authorities 13 14 Defendants argue that the APD offices are immune from liability because no state tort 15 liability attaches for brining a potential violation of welfare program benefits to the attention of the 16 local authorities. The Court finds it unnecessary to rule on this issue at this time. 17 The Defendants cite to a Third Circuit decision which held that “[t]here can be no tortuous 18 action or impropriety when private citizens or public officials exercise their rights to notify the 19 appropriate agencies or mobilize public opinion about a serious violation of the law.” Brownsville 20 Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159-60 (3d Cir. 1988) (holding that the 21 defendants could not be held tortuously liable for alerting authorities to plaintiff's violations of law, 22 where defendants were attempting to bring a nursing home’s noncompliance with the relevant 23 regulations to the attention of the authorities). 24 However, the Ninth Circuit has held that there is extensive case law on both sides of the 25 question whether the Noerr-Pennington doctrine brings first amendment principles to bear on state 26 law tort claims. In re American Continental Corporation/Lincoln Sav. & Loan Securities Litigation, 27 102 F.3d 1524, 1538 and n.15 (9th Cir. 1996), rev'd on other grounds sub nom Lexecon, Inc. v. 28 14 As stated above, the letter from Defendants to Plaintiff’s landlord is not conduct that is covered by 47(b). As Plaintiff conceded at the hearing, the letter to the landlord did not cause damage to Plaintiff. It was the termination of the Section 8 vouchers by HACCC that caused Plaintiff’s damage. 42 For the Northern District of California United States District Court 1 Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). The Ninth Circuit has ruled that 2 Noerr-Pennington principles apply with full force in statutory contexts outside of antitrust, the 3 context in which it was originally created. Kearney v. Foley & Lardner, LLP, 566 F.3d 826, 832 4 (9th Cir. 2009) (citing Sosa v. DIRECTV, Inc., 437 F.3d 923, 930 (9th Cir.2006)). However, the 5 Court cannot find a case in which the Ninth Circuit has made its ultimate determination regarding 6 whether the Noerr-Pennington doctrine applies in regard to state tort claims. See In re American 7 Continental Corporation/Lincoln Sav. & Loan Securities Litigation, 102 F.3d 1524, 1538 n.15 (9th 8 Cir. 1996) (holding that the time has not yet come for the Ninth Circuit to speak on the question) .15 9 Because the Court finds that the APD officers are immune from liability under the state tort claims 10 pursuant to the litigation privilege of Cal. Civ. Code § 47(b) and to Cal. Gov. Code § 821.6, the 11 Court declines to address this question. 12 d. 13 14 APD officers are not immune from liability for their discretionary acts pursuant to Cal. Gov. § 820.2 The individual Defendant officers assert that they are entitled to immunity pursuant to §820.2 15 of the California Government Code, which provides that public employees are not liable for injuries 16 caused by a discretionary act. Cal. Gov’t Code § 820.2 (West 2006). See Defendant’s Motion at 23. 17 According to section 820.2, “Except as otherwise provided by statute, a public employee is not liable 18 for an injury resulting from his act or omission where the act or omission was the result of the 19 exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov. Code. 20 § 820.2. Defendants argue that the APD Officers’ personal decision to report information about 21 criminal activity of Plaintiff’s children to HACCC, the landlord and during the hearing was 22 discretionary and that, therefore, the officers are immune pursuant to section 820.2. The Court 23 disagrees. 24 The legislature’s purpose in enacting section 820.2 was to codify California common law 25 immunity for discretionary acts by public employees within the scope of their employment. Gillian, 26 147 Cal. App. 4th at 1051 (citing Caldwell v. Montoya, 10 Cal.4th 972, 980 (1995)). As the courts 27 have clarified, immunity under section 820.2 does not apply to all acts by public employees 28 15 But see Sierra Club v. Butz, 349 F.Supp 934, 939 (N.D. Cal. 1972) (holding that the defendants could not be held liable under state tort law for interfering with an advantageous relationship, where the defendants were attempting to reduce timber sales in an effort to protect the wilderness quality of the land at issue). 43 1 according to a literal meaning of the word “discretionary,” but rather, is limited to “‘basic policy 2 decisions’” that have been expressly committed to coordinate the branches of government and 3 where, therefore, judicial interference would be “‘unseemly.’” Id. (quoting Caldwell, 10 Cal.4th at 4 981); see also Johnson v. California, 69 Cal.2d 782, 794 (1968) (the seminal case in which the 5 California Supreme Court rejected a literal interpretation of the word “discretionary”); McQuirk v. 6 Donnelley, 189 F.3d 793 (9th Cir. 1999) (applying the California Supreme Courts’ decision in 7 Johnson in a determination that the defendant was not immune pursuant to section 820.2). 16 8 For the Northern District of California United States District Court 9 As the Ninth Circuit has explained, the distinction between a basic policy decision and ministerial conduct “is sometimes characterized as that between the planning and the operational 10 levels of decision making.” McQuirk, 189 F.3d at 799 (internal quotation marks omitted). As Judge 11 Illston of the Northern District of California further clarified, immunity is limited to “‘areas of quasi- 12 legislative policy-making [which] are sufficiently sensitive to call for judicial abstention.’” 13 Harmston v. City and County of San Francisco, 2007 WL 2814596, *3 (N.D. Cal. 2007) (Illston, J.) 14 (quoting Caldwell v. Montoya, 10 Cal.4th at 981) (internal quotations omitted). Furthermore, 15 “[t]here is no immunity for ministerial decisions that ‘merely implement a basic policy already 16 formulated.’” Id. (citing Caldwell, 10 Cal.4th at 981). 17 In Caldwell, the California Supreme Court held that school board members were immune 18 from liability, pursuant to section 820.2, in relation to the termination of a school superintendent for 19 discriminatory and retaliatory reasons. 10 Cal.4th at 976-77, 989. The court found that the school 20 superintendent was “the district’s foremost appointed official,” a “central post” that carried with it 21 “fundamental policy implications.” Id. The court also found it significant that a state statute 22 specifically vested the school board with authority over the superintendent’s employment, an 23 indication that the decision was “expressly entrusted to a coordinate branch of government at its 24 25 26 27 28 16 The Supreme Court of California has preserved the distinction between policy and operational judgments in various circumstances. See Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 793-795 (1985) (rejecting claim of immunity for a bus driver’s decision not to intervene in one passenger’s violent assault against another); Peterson v. San Francisco Community College Dist., 36 Cal.3d 799, 815 (1984) (rejecting a claim of immunity for a college district’s failure to warn of known crime dangers in a student parking lot); Sanborn v. Chronicle Pub. Co., 18 Cal.3d 406, 415-416 (1976) (rejecting a claim of immunity for a county clerk’s libelous statements during a newspaper interview about official matters); Tarasoff v. Regents of University of California, 17 Cal.3d 425, 444447 (1976) (rejecting claim of immunity for a university therapists’ failure to warn a patient’s homicide victim of the patient’s prior threats to kill her). 44 For the Northern District of California United States District Court 1 highest level.” McQuirk v. Donnelley, 189 F.3d 793, 800 (9th Cir. 1999) (citing Caldwell, 10 Cal.4th 2 at 982) (internal quotation marks omitted). 3 On the other hand, in Gillan, the court held that the decision to arrest the plaintiff was not a 4 basic policy decision but rather an “operational decision by the police purporting to apply the law.” 5 Id. Therefore, the court held that the immunity provided under section 820.2 was not applicable and 6 provided no defense to the plaintiff’s claim for violation of California Civil Code Section 52.1. 7 Similarly, the Ninth Circuit held in McQuirk that a sheriff’s decision as to what to include in 8 a particular reference was merely an implementation of a larger policy, not a basic policy decision in 9 itself. 189 F.3d at 799. The court therefore concluded that the defendant was not immune pursuant 10 to section 820.2, and that the district court had erred in granting summary judgment on that basis. 11 Id. at 800. 12 In Harmston v. City and County of San Francisco, Judge Illston held that the court could not 13 find, based on the pleadings before the court, that defendants were immune from liability under 14 section 820.2. 2007 WL 2814596 (N.D. Cal. 2007) (ruling on defendants’ motion for judgment on 15 the pleadings, where plaintiffs alleged claims of racial discrimination, retaliation, defamation, and 16 intentional infliction of emotional distress). The court explicitly distinguished the case from 17 Caldwell, explaining that “the parties have not pointed to a . . . governing statute [which expressly 18 entrusted decision-making authority to a coordinate branch of government at its highest level], and 19 the plaintiff police officers do not hold the same high-level of authority as the school superintendent 20 in Caldwell.” Id. at *4. The court found that “such a nuanced examination” as to whether the chief 21 of police’s decision was a basic policy decision or merely a ministerial decision could not be made 22 on the bare pleadings before the court. Id. at *5. The court held, however, that “it may become 23 clear [as the case develops] that [the defendant] was actually involved in making policy . . . due to 24 the nature of the plaintiffs’ conduct and its impact on the police department and the community at 25 large.” Id. 26 Defendants cite to a 1969 California Supreme Court Decision, McCorkle v. City of Los 27 Angeles, 70 Cal.2d 252, 261 (1969). As explained above, since the California Supreme Court ruled 28 on McCorkle, both the California Supreme Court and the Ninth Circuit have further clarified that immunity is limited to “‘basic policy decisions,’” not just decisions that involve personal 45 1 deliberation, decision and judgment. See Caldwell, 10 Cal.4th at 981; McQuirk v. Donnelley, 189 2 F.3d at 800. See also Harmston, 2007 WL 2814596, *3 (Illston, J). Furthermore, the facts of 3 McCorkle are not particularly instructive here. In that case, the court held that section 820.2 4 immunity did not apply to a police officer’s negligent conduct of a traffic investigation once 5 undertaken. McCorkle, 70 Cal.2d at 261- 262. In addition, the court in Caldwell characterized 6 McCorkle as an example of a case that cannot be characterized as a policy judgment. Caldwell, 10 7 Cal.4th at 982, 981-82. 8 For the Northern District of California United States District Court 9 Defendants argue that the officers’ decision to report redacted information about the criminal activity of Plaintiffs’ children to HACCC, the landlord, and during the hearing was discretionary. 10 See Defendants’ Memorandum at 23. They provide no evidence to support a determination that 11 officers engaged in a policy decision. To the contrary, their characterization of the decision as 12 personal and discretionary suggests that it was not a policy decision but rather a situation-specific 13 decision. See Defendants’ Memorandum at 23. Thus, the Court finds that the present case is more 14 comparable to Harmston, where the Judge Illston held that “there is no immunity for ministerial 15 decisions that ‘merely implement a basic policy already formulated.’” See Harmston, 2007 WL 16 2814596, *3.17 In addition, like in Harmston, the Court finds it significant that Defendants do not 17 cite to a statute that expressly entrusts them to make the decision to report redacted information 18 about the criminal activity of a Section 8 Housing Unit voucher program participant’s children to the 19 HACCC, the participant’s landlord, an administrative court, or other authorities – a statute that, if 20 existent, might suggest that the officers’ decision was a basic policy decision. Nor does the Plaintiff 21 have a high-level of authority, such as in Caldwell where the plaintiff held the important position of 22 superintendent of the school district. See 10 Cal.4th at 976-77, 989. Rather, from the record 23 currently before the court, there appears to be nothing to suggest that the decision to present the 24 information at issue to HACCC was a policy-based decision. Therefore, the Court finds that the 25 immunity provided under section 820.2 is not applicable to the conduct of Defendants in this case. 26 27 17 Plaintiff contends that the Antioch Police Department “has a reputation for unfairly and unlawfully targeting, profiling and discriminating against households participating in the Section 8 28 Housing Choice Voucher Program, and African-Americans who live in the City of Antioch.” SAC, ¶ 38. Even assuming that this allegation is true, the Court finds that the officers’ decision to act upon such a policy would be considered a ministerial decision merely implementing a basic policy already formulated. See Harmston, 2007 WL 2814596, *3. 46 1 e. The City of Antioch is immune from liability pursuant to Cal. Gov. Code § 815.2(b) 2 3 California Government Code section 815.2(b) provides that “a public entity is not liable for 4 an injury resulting from an act or omission of an employee of the public entity where the employee 5 is immune from liability.” Cal. Gov. Code § 815.2(b). Defendants argue that the City of Antioch is 6 immune from liability pursuant to section 815.2(b). Because the Court concludes that Defendants 7 are immune from liability pursuant to both Cal. Civ. Code § 47(b) and Cal. Gov. Code § 821.6, the 8 Court finds that the City of Antioch is also immune. Accordingly, the municipal Defendants are 9 immune from liability for conduct alleged in claims 10, and 12-15. However, they may be liable for 11 For the Northern District of California United States District Court 10 12 the conduct of Bittner under claims 16 and 17. 2. State Tort Claims – Negligence, IIED (Claims 12 and 13) Plaintiff’s negligence claim fails for two reasons. As an initial matter, Plaintiff has failed to 13 put forth any evidence to support this claim, and in particular, what duty was owed to her by the 14 Antioch Police Department Defendants. Second, the Court concludes that state law immunities 15 apply and shield Defendants from liability for this claim. 16 17 18 19 20 21 22 23 24 Without any citation to authority, Plaintiff argues that “Defendants breached their duties to Plaintiff by submitting Plaintiff’s case to HACCC for termination without conducting an inquiry as to whether the allegations against Plaintiff’s children were supported by a preponderance of the evidence.” Pl.’s Opp. at 24. The Court concludes that these claims must fail as to all Defendants due to the applicability of state law immunity discussed previously. See supra, 33-35 (discussion of 47(b) privilege) and 35-37 (discussion of § 821.6 immunity); see also Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1242 (2007) (California courts have applied the litigation privilege liberally to immunize defendants in cases of intentional infliction of emotional distress, invasion of privacy, and negligence). 25 Similarly, the Court finds that Plaintiff’s IIED claim cannot proceed to trial against any of 26 the Defendants. To succeed on a claim of intentional infliction of emotional distress, a plaintiff 27 must demonstrate: 28 47 1 (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants’ outrageous conduct. 2 For the Northern District of California United States District Court 3 4 Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991). “Outrageous conduct” requires 5 that the conduct must be so extreme “as to exceed all bounds of that usually tolerated in a civilized 6 community.” Id. California courts have held that the question of whether the conduct alleged in the 7 complaint is sufficiently “extreme and outrageous” is generally a factual issue for the jury. See 8 Angie M. v. Superior Court, 37 Cal.App. 4th 1217, 1226 (1995). Plaintiff’s claim for intentional 9 infliction of emotional distress is derivative of her claims of violations of her civil rights under 10 federal law against Defendant Bittner. Because there are triable issues of fact regarding these 11 claims, this claim would survive against Bittner, were it not for the applicability of state law 12 immunity. The Court finds both §47(b) and §821.6 applicable here, and Defendants are therefore 13 shielded from liability for these claims.18 See e.g., Amylou R. v. County of Riverside, 28 Cal.App.4th 14 1205 (1994) (§821.6 immunized police officers from liability for intentional and negligent infliction 15 of emotional distress based on statements made by the officers during their investigation of rape). 16 The motion for summary adjudication with respect to the all Defendants on the negligence and IIED 17 claims is therefore GRANTED. 18 3. Abuse of Process and Malicious Prosecution (Claims 14 and 15) 19 Defendants argue that the Plaintiff’s Abuse of Process and Malicious Prosecution claims 20 should be dismissed because they lack any evidentiary support. Plaintiff merely alleges that the 21 Defendants terminated her housing benefits. 22 The Court concludes that the state immunities discussed above prevent liability on Plaintiff’s 23 Abuse of Process and Malicious Prosecution claims. As to Plaintiff’s state Malicious Prosecution 24 claim, the Court finds that Defendants are immune under California Government Code section 25 821.6, which is discussed above. Section 821.6 provides: “A public employee is not liable for injury 26 caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of 27 his employment, even if he acts maliciously and without probable cause.” 28 18 For the same reasons discussed above, however, the Court concludes that these privileges to not apply to the conduct involving the allegedly threatening letter to the landlord. Plaintiff has conceded at the hearing, however, that there is no damage as a result of that conduct. Plaintiff was not evicted by her landlord. 48 1 2 3 4 5 For the Northern District of California United States District Court 6 The California Supreme Court has explained section 821.6's application: . . . California law grants immunity to any “public employee” for damages arising from malicious prosecution. (§ 821.6.) “Although Government Code section 821.6 has primarily been applied to immunize prosecuting attorneys and other similar individuals, this section is not restricted to legally trained personnel but applies to all employees of a public entity .... 821.6 “applies to police officers as well as public prosecutors since both are public employees within the meaning of the Government Code.” Asgari v. City of Los Angeles, 15 Cal.4th 744, 756-757 (1997) (internal citations omitted); 7 see also Randle v. City and County of San Francisco, 186 Cal.App.3d 449, 456 (1986). Because the 8 individual officers are immune from liability for malicious prosecution under §820.6, the municipal 9 Defendants are immune under 815.2(b). Under California law, a municipality is not liable for 10 malicious prosecution arising from its employee’s immunized conduct within the scope of the 11 employee’s employment. See Vivell v. City of Belmont, 274 Cal.App.2d 38, 41 (1969). 12 With respect to the abuse of process claim, the analysis is the same. The common law tort of 13 abuse of process arises when one uses the court’s process for a purpose other than that for which the 14 process was designed. Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (citing 5 Witkin, Summary of Cal. 15 Law (9th ed. 1988) Torts, § 459, p. 547). The elements of the tort of abuse of process are: (1) 16 defendant contemplated an ulterior motive in using the process, and (2) defendant committed a 17 willful act in the use of the process not proper in the regular conduct of the proceedings. Oren Royal 18 Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1168 (1986). “Abuse 19 of process claims merely require malice, which ‘may be inferred from the wilful abuse of the 20 process.’ ” Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal.4th 800 (2001) (citing 21 Tranchina v. Arcinas, 78 Cal.App.2d 522, 526 (1947)). 22 Here, Plaintiff alleges that Defendants abused the legal process by “willfully and improperly 23 terminat[ing] Plaintiff’s Section 8 housing benefits voucher in violation of federal and state law.” 24 SAC at ¶ 99. Plaintiff has proffered no evidence in support of her claim and in opposition to the 25 motion for summary judgment, other than to repeat her arguments made in connection with the other 26 claims, namely, that the officers improperly initiated proceedings by referring her case to HACCC 27 for investigation and termination, provided information to HACCC improperly, and wrote a 28 threatening letter to her landlord. Plaintiff argues that this conduct was done with malice and with racial animosity. As discussed previously, however, malice does not destroy immunity under 49 1 §821.6. See e.g., Garcia v. City of Merced, 2008 WL 115201, *11 (E.D. Cal. January 10, 2008) 2 (finding immunity under §§821.6 and 815.2 on abuse of process claim). The individual officer 3 Defendants are entitled to immunity under §821.6 for the abuse of process claim. If their employees 4 are immune under § 821.6, then the municipal entity Defendants, City of Antioch and Antioch 5 Police Department, are immune under California Government Code Section 815.2. 6 7 The motion for summary adjudication with respect to claims 14 and 15 against all Defendants is therefore GRANTED based upon the immunities set forth in §§821.6 and 815.2. 8 For the Northern District of California United States District Court 9 4. Housing and Race Discrimination (Claims 16 & 17) Defendants’ arguments in support of their motion for summary adjudication essentially 10 mirror their arguments with respect to the federal claims – that there was no discrimination. 11 Defendants have not argued, and the Court can find no authority for the proposition that the state law 12 immunities discussed above shield the Defendants from state housing and race discrimination 13 claims. For the reasons stated above, the motion is GRANTED with respect to all Defendants, with 14 the exception of Defendant Bittner. These claims may proceed against Officer Bittner. 15 16 17 18 5. Defendants’ Motion with respect to claim 18 is GRANTED as to the claims dismissed above; and the Motion is DENIED with respect to the claims that may proceed to trial. III. 19 20 21 22 Declaratory and Injunctive Relief (Claim 18) CONCLUSION For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED IN PART AND DENIED IN PART as follows: 1) the Motion as to claims one through four, to the extent based upon the unauthorized release of juvenile records, is GRANTED as to all Defendants; 23 2) the Motion on Plaintiff’s equal protection claim under §1983 (claim 1) is GRANTED as to 24 all Defendants with the exception of Officer Bittner. The motion is DENIED with respect to Officer 25 Bittner; 26 27 3) the Motion is GRANTED on Plaintiff’s procedural due process claims (claim 1) as to all Defendants; 28 50 1 2 all Defendants with the exception of Officer Bittner. The motion is DENIED with respect to 3 Defendant Bittner; 4 5) the Motion is GRANTED on Plaintiff’s §3604 claim (claim 6) as to all Defendants; 5 6) the Motion is GRANTED on Plaintiff’s §3617 claim (claim 6) as to all Defendants, except 6 7 8 9 10 11 For the Northern District of California United States District Court 4) the Motion is GRANTED on Plaintiffs §§ 1985(3) and 1986 claims (claims 3 and 4) as to 12 for Defendant Bittner. The Motion is DENIED with respect to Officer Bittner; 7) the Motion is GRANTED on Plaintiff’s claim under 42 U.S.C. § 2000d (Title VI of the Civil Rights Act of 1964) (claim 5) as to all Defendants; 8) the Motion is GRANTED on Plaintiff’s Monell claim (claim 2) with respect to municipal liability for all Defendants; 9) the Motion is GRANTED as to all Defendants on Plaintiff’s claim based upon the breach of mandatory duties (claim 10); 13 10) the Motion is GRANTED on Plaintiff’s respondeat superior claim (claim 11) as to all 14 Defendants except with respect to the allegations against Defendant Bittner in claims 16 and 17; 15 16 17 18 11) the Motion is GRANTED on Plaintiff’s negligence and IIED claims (claims 12 and 13) against all Defendants; 12) the Motion is GRANTED on Plaintiff’s state abuse of process and malicious prosecution claims (claims 14 and 15) against all Defendants; 19 13) the Motion is GRANTED on Plaintiff’s housing and race discrimination claims (claims 20 16 and 17) under state law as to all Defendants other than Officer Bittner. The motion is DENIED 21 with respect to Defendant Bittner; 22 14) the Motion is GRANTED on Plaintiff’s declaratory and injunctive relief claim (claim 18) 23 with respect to the claims that are dismissed herein, and DENIED with respect to the claims that 24 may proceed to trial. 25 IT IS SO ORDERED. 26 27 28 Dated: October 2, 2009 _______________________________ JOSEPH C. SPERO United States Magistrate Judge 51

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