Diane Anderson v. Dave Smith et. al., No. 1:2006cv01795 - Document 45 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 28 , signed by Judge Oliver W. Wanger on 07/10/09. (Coffman, Lisa)
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1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 DIANE ANDERSON; DONA CLOUD, 1:06-CV-1795 OWW SMS 6 Plaintiffs, 7 MEMORANDUM DECISION GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AS TO ALL CLAIMS AGAINST ALL DEFENDANTS. v. 8 9 10 11 12 13 14 15 DAVE SMITH, Clovis Police Department; JIM KOCH, Corporal, Clovis Police Department; BETTY COCHRAN, Clovis Animal Control Officer; SHAWN KNAPP, Clovis Animal Control Officer; STEVE BAKER, Clovis Code Enforcement Officer; KEN BAXTER, Clovis Code Enforcement Officer; CITY OF CLOVIS; DOES 1-20. Defendants. 16 17 I. INTRODUCTION 18 This case arises out of the October 26, 2005 entry into 19 20 Plaintiffs residence at 2557 Harvard Avenue in Clovis, California, by members of the Clovis Police Department, Clovis 21 Animal Control Officers, and Clovis Code Enforcement Officers. 22 23 24 Plaintiffs First Amended Complaint ( FAC ) alleges seven counts, some of which encompass several causes of action: 25 (1) Violation of Federal Civil Rights (Illegal Entry, 26 Search, Seizure, 4th Amendment Violations) ; 27 (2) Trespass, Invasion of Privacy, Conversion ; 28 1 1 (3) Assault, Battery; Excessive Force ; 2 (4) Violation of Civil Rights (Due Process), Abuse of 3 Process (Destruction of Pets Without Notice), 4 Intentional Infliction of Emotional Distress; 5 Conversion (Destruction of Pets); 6 (5) Violation of Civil Rights (Due Process); 7 8 Conspiracy; Abuse of Process (Refusal of Access to 9 Evidence); 10 (6) Violation of Federal Civil Rights; Conspiracy 11 (Substantive Due Process: Exclusion From, Loss of Home) 12 Doc. 6. 13 Defendants Dave Smith, Jim Koch, Betty Cochran, Shawn Knapp, 14 15 Steve Baker, Ken Baxter, and the City of Clovis, move for summary 16 judgment, arguing with respect to the Fourth Amendment 17 allegation: 18 entry; and alternatively, that the entry was also required 19 (2) to protect the health and/or safety of a number of animals 20 residing there in unacceptably unsanitary conditions; and (3) to (1) that Plaintiff Dona Cloud consented to the 21 protect the health of Ms. Cloud, an elderly woman residing at the 22 residence, who Defendants claim to have observed outside the 23 24 residence with what they believed to be animal feces on her 25 hands, feet, and person, and an open tracheotomy wound on her 26 throat. 27 summary judgment on all of the remaining claims in the case. Defendants also maintain that they are entitled to 28 2 1 II. BACKGROUND 2 Both Defendant Neighborhood Preservation Officer Dave Smith 3 ( Smith ) and Defendant Animal Service Officer Betty Cochran 4 ( Cochran ) received several complaints concerning the noise and 5 odor coming from Plaintiffs residence, at 2557 Harvard Avenue, 6 in Clovis, California in the month prior to October 26, 2005. 7 8 Defendants Statement of Undisputed Material Fact ( DSUF ), Doc. 9 37-2, #2. 10 Department cited Plaintiff Diane Anderson for violations of the 11 Clovis Municipal Code in reference to complaints about dogs 12 barking at and foul odors coming from her property. 13 On October 16, 2005, the Clovis Animal Control Cochran Decl., Doc. 28-4, at ¶5. 14 On October 20, 2005, Smith and Cochran visited Plaintiff 15 16 Diane Anderson to inform her of the complaints and advise her how 17 to come into compliance. 18 by a six foot solid wood fence protecting the front entry. 19 Decl., Doc. 28-14, at ¶6. 20 Anderson by breaching a gate in the fence and knocking on the 21 front door. Id. at ¶9. DSUF #3. The residence was surrounded Smith Officer Smith made contact with Diane Smith could hear that there were 22 numerous dogs barking incessantly inside the house. Id. Diane 23 Anderson answered the door, exited the residence, came outside 24 25 the enclosed fenced-in area, and spoke with Smith in the front Id. 26 yard. Cochran and Smith spoke with Diane Anderson, and 27 explained the applicable Municipal Codes to her. 28 3 Id. at ¶10. 1 Ms. Anderson admitted to having nine or more dogs, and indicated 2 her intent to comply with Smith and Cochran s request that she 3 remove all but three dogs from the residence. Id. Ms. Anderson 4 indicated that she would comply with this request and would be 5 ready for re-inspection the following week. Id. at ¶10. 6 On Tuesday, October 25, 2005, Cochran and Smith returned to 7 8 Ms. Anderson s residence, but were unable to establish contact 9 with anyone. 10 to contact Ms. Anderson. 11 front yard through her garage. 12 them. Id. Smith returned the following morning, and was able Id. at ¶11. Id. Ms. Anderson came into the Smith called Cochran to meet Smith observed unfinished carpentry work, wet floors, 13 and exposed wires in the open garage, all of which were, in his 14 15 opinion, in violation of the municipal building code. Id. Once 16 Cochran arrived, she could smell urine and feces coming from the 17 home. 18 Cochran Decl. at ¶7. Smith explained to Ms. Anderson that he and Cochran were 19 there to re-inspect her residence. 20 understood, but had not been able to comply with the officers Ms. Anderson stated that she 21 requests. Smith Decl. at ¶12. Smith told Ms. Anderson that he 22 was not inclined to give her an extension, as there was a gross 23 24 violation of City Ordinances and the neighbors were being Id. 25 inconvenienced. Anderson indicated that she understood, but 26 did not know how to solve the problem and that it would take her 27 some more time to find homes for the animals. 28 4 Id. 1 Cochran said it would be better to take the animals to the 2 Clovis Animal shelter, so they could begin the process of 3 adopting them out. Ms. Anderson reluctantly agreed to surrender 4 the puppies. Cochran Decl. at ¶8. Ms. Anderson refused to 5 allow the officers inside the house to help evacuate the animals. 6 7 Smith Decl. at ¶14. She made eight trips in and out of the Id. at ¶14. 8 house, bringing out a total of sixteen puppies. 9 Officer Smith described the condition of the dogs as follows: 10 Each puppy was similar in size and weight and they appeared to be six to seven week old shepherd mix puppies. The puppies had an extremely foul odor and it was obvious they also had significant flea infestation and a skin disorder where hair was missing, and a rash was visible on the puppies skin. Fleas jumped from the puppies onto my arms as I handled them [to Officer Cochran]. The puppies appeared very weak and in bad condition all the way around. They were sticky to the touch, as if they had been soaking in urine. 11 12 13 14 15 16 Id. at ¶15. 17 for the City of Clovis for eight years, and an employee at a 18 Officer Cochran has been an Animal Control Officer veterinarian s office for six years before that. Cochran Decl. 19 at ¶3. She possesses a Bachelor of Science degree in Animal 20 21 Science and has worked with animals for nearly twenty years. Id. 22 She described the condition of the animals Ms. Anderson brought 23 outside as follows: 24 25 26 27 28 I immediately noticed the puppies had a strong odor of urine and feces coming from them, there was feces matted in the pads of their feet, there was excessive flea infestation on each puppy, the puppies had scabs covering their bodies due to the flea infestation, they were sticky to the touch from being soaked in urine over a prolonged period of time without cleaning, and they had distended abdomens typical of worm infestation. Because of 5 1 my years of experience working with animals I recognized the puppies as being very neglected. In spite of my years of experience dealing with animals I found the condition of the puppies to be revolting. 2 3 4 Id. at ¶9. 5 As Ms. Anderson continued to bring puppies out of the 6 residence, Officer Smith could still hear dogs barking inside, 7 making it obvious to him that there were still more than three 8 animals inside the residence. Smith Decl. at ¶16. As each set 9 10 of puppies came out of the home, Cochran noticed the odor of 11 urine and feces becoming stronger. 12 led her to understand that the smell was coming from the home as 13 well as the puppies. 14 experience, that it was necessary to remove all of the animals 15 Cochran Decl. at ¶10. This I believed at this time, due to my years of from the home immediately in order to protect them. Id. By 16 this time, Corporal Jim Koch had been called to assist with the 17 18 19 investigation. Smith Decl. at ¶16 While Officer Smith was discussing the circumstances with 20 Ms. Anderson, she volunteered information about her 73 year old 21 mother, Dana Cloud, who was living in the residence. 22 declares: 23 24 25 26 27 28 Smith While discussing the seriousness of the circumstances with Ms. Anderson, she stated she was frustrated because she could not accomplish the task of transporting the animals to other locations because her mother, a seventy-three-year-old female (plaintiff Dona Cloud), was in the residence confined to a wheelchair and walker, and spent most of the time laying in bed as she recovered from tetanus that begin in June of 2005. After further discussion, Ms. Anderson said her mother 6 1 had received a splinter from within the residence that became infected, causing the tetanus, and she had been hospitalized for a lengthy period of time. 2 3 Id. at ¶17. Considering the description of Ms. Anderson s 4 mother living within the residence with such a serious health 5 condition, the unbelievably foul odor emanating from the 6 7 residence and condition of the puppies removed from the 8 residence, along with the significant number of dogs still within 9 the residence, Officer Smith determined that a health and safety 10 check of Ms. Anderson s mother was required. 11 12 Id. at ¶18. Smith told Ms. Anderson that the Officers needed to inspect the condition of the residence where her mother was 13 convalescing. Id. at ¶19. According to Smith, Ms. Anderson 14 15 responded that she was an in-home service provider for the 16 elderly working for the County of Fresno and she understood the 17 need to provide a safe and healthy environment for the elderly. 18 She also said the condition of the residence was safe and healthy 19 and there was no need for an inspection. 20 Anderson was told the inspection had to occur for the safety of At this time, Ms. 21 her mother, at which time she said fine, I ll bring her to you; 22 stay out of my house. Id. Ms. Anderson went inside the 23 24 residence and wheeled Dona Cloud outside in her wheelchair. According to Smith: Id. 25 at ¶20. Ms. Cloud had what appeared to be 26 fecal matter on her hands, feet and legs, otherwise she appeared 27 28 7 1 in reasonable health, and appeared alert and oriented. 2 Smith notified Adult Protective Services. 3 Woodward, a social worker, responded to the scene. Id. Id. 1 Case Worker Susan Id. Ms. 4 Woodward concluded that Dona Cloud was in the home of her own 5 free will and that Adult Protective Services would not intervene. 6 7 Id. Smith, however, continued to be concerned for the health of 8 Ms. Cloud and Ms. Anderson because the home was in violation of 9 several Municipal and Penal Codes. 10 11 12 Id. at ¶21. Smith explained to Ms. Anderson that Section 6.1.503 of the Clovis Municipal Code state[s] [that] every person keeping an animal shall at all times keep cages, yards and other enclosures 13 where the animal is kept in a clean and sanitary condition and 14 15 shall remove excreta and manure therefrom every day or as often 16 as is necessary so as not to become a nuisance in the 17 neighborhood; and 6.1.503(b) [] states [that] no person shall at 18 any time maintain any lot or other premises in the city upon 19 which any animal is kept in an unsanitary condition or in such 20 condition as to cause the same to be infested with flies or 21 insects or to create any noxious or offensive odor. Id. at ¶22. 22 Smith concluded that [c]learly the conditions at 2557 23 24 25 26 27 28 Harvard Avenue where humans were living were in severe violation 1 Ms. Anderson asserts that it was just dirt on her mother s hands, feet, and person, because her mother was helping to clean up the backyard. Anderson Decl., Doc. 31, at ¶4. This explanation is considered in view of the fact that Ms. Cloud was confined to a wheelchair. Nonetheless, even if accepted, it does not undermine the reasonableness of the officers belief, under the circumstances, that the filth observed on Ms. Cloud was feces. 8 1 of the City Municipal Code, [] flies at the residence numbered in 2 the hundreds or thousands; fleas were such that every animal and 3 piece of carpet or bedding was visibly infested, and the noxious 4 odor was so apparent that the [neighbors] had been calling for 5 weeks complaining of the odor emanating from 2557 Harvard when 6 7 the door was open or the air conditioning was on. Id. at ¶23. 8 Smith further explained that the conditions of the residence 9 were not safe or sanitary for her mother or herself. 10 ¶24. 11 12 Id. at Ms. Anderson explained that she was in the process of Id. refinancing the home and would be able to fix any problems. 13 at ¶25. According to Smith, Ms. Anderson gave Smith the contact 14 15 information for the company that was refinancing the home. Smith 16 then called the mortgage company and asked to speak to the 17 appraiser in order to interview him with respect to the 18 condition of the home. 19 Ms. Anderson denies ever giving Officer Smith information about 20 her home loan. Id. Smith was unable to reach him. Anderson Decl. at ¶10. Id. She asserts that Smith 21 must have obtained the information while inside the home. Id. 22 At some point after the puppies and Ms. Cloud were brought 23 24 outside the residence, Officer Koch conferred with Officer Smith 25 about entering the home to check on the safety of Ms. Cloud and 26 the animals. 27 need a warrant to do so under an exception to the warrant Koch Decl. at ¶13. Koch believed that they did not 28 9 1 2 3 Id. requirement. According to Smith, as he was explaining his concern for Dona Cloud s health and safety, Ms. Cloud spoke up and 4 said we could enter the home to check on her living 5 Id. at ¶26. conditions. Smith recalls that Ms. Anderson 6 7 yelled at Ms. Cloud and told her to shut up because you Id. Smith then told Ms. 8 don t know what you re saying . 9 Anderson that I would be forced to arrest her if she 10 continued to threaten her mother. 11 and Ms. Cloud dispute Smith s recollection that Ms. Cloud 12 consented to inspection of the home. Id. Both Ms. Anderson Anderson Decl. ¶6; 13 Cloud Decl. ¶1; Ruling on Motion to Suppress in People v. 14 15 Anderson, Ex. F. to Holland Decl, Doc. 32. 2 Smith then explained to Ms. Anderson that the officers 16 Id. at 17 needed to remove the animals from her residence. 18 ¶27. 19 to enter her residence for the sake of removing the 20 animals. Smith recalls that Ms. Anderson gave him permission Id. Ms. Anderson denies this. Anderson Depo. at 21 136. According to Ms. Anderson, she continued to deny the 22 Officers entry and, as they were approaching the door, she 23 24 25 26 27 2 Defendants argue that Plaintiffs contrary evidence with respect to consent should be disregarded because: (1) Ms. Anderson was not present for the entire time that officer Smith was speaking with Ms. Cloud; and (2) that Ms. Cloud, who has since been diagnosed with dementia, is not competent to recant her earlier statements. These objections go to the weight of Plaintiffs counter-evidence, not their admissibility. Viewing the evidence in a light most favorable to Plaintiffs, no consent was given. 28 10 Id. 1 said You are not going in. 2 officer, possibly Officer Smith, then grabbed her elbow to 3 prevent her from entering the home. She claims that an Id. This forms the 4 basis of Ms. Anderson s excessive force claim. She does not 5 recall that the grabbing of her wrist hurt her in any way. 6 7 8 She was not bruised. mad. the entry into the home is essentially undisputed: 11 28. At this point Betty Cochran, Shawn Knapp, Jim Koch, and I, made our way to the front door of Ms. Anderson s residence for the purpose of entering and removing the unknown number of animals within. What took place while removing the animals is very difficult to describe, and pictures were taken to document the absolute atrocity that was found as we entered the front door. 12 13 14 15 29. Upon opening the front door of Ms. Anderson s residence, all officers had to step back because the odor was so strong. It was necessary that everyone obtain a mask in order to try to re-enter the home and collect the animals. 16 17 18 30. Once inside the residence, numerous dogs (more than I was able to count) were running every direction within the house, the floors of the residence had what appeared to be remnants of carpet that were completely disintegrated and apparently absorbed into the existing wood floor that was wet and saturated with urine and fecal 19 20 21 22 23 24 25 26 27 28 Id. at 182. 3 Smith s disturbing description of how events unfolded during 9 10 She simply asserts that it made me 3 Defendants attempt to overcome this allegation by pointing out that Ms. Anderson admitted in her deposition that she was facing the other way when Officer Smith grabbed her elbow. Anderson Depo. at 137. According to Defendants, the fact that she wasn t watching Smith at the time of the contact renders her excessive force and battery claims unavailable because she fails to allege sufficient facts to support the required elements of these allegations. Doc. 37 at 11. Defendants cite no authority for the proposition that a person cannot be the victim of excessive force and/or battery simply because he or she was not watching the alleged assailant prior to the allegedly unlawful contact. 11 1 2 matter. As I looked down the hallway, I saw a shovel standing against the wall with fecal matter stacked and smeared three to four feet up the wall. 3 4 5 6 31. There were numerous dogs in the living room area and I and others began capturing the dogs with catch sticks. During this process, fourteen (14) large breed adult dogs were removed, each of the dogs was clearly unkempt, infested with fleas, had severe skin problems, and was completely non-socialized. 7 8 9 10 11 32. After seizure of the fourteen dogs, the inspection of the residence continued. The kitchen was so dirty and deteriorated that it defies description by words alone. There were spider webs so thick it looked like a Halloween decoration. Animals were hiding within the cupboards that had been chewed, scratched and clawed to where they were only partially intact and some cupboards were actually removed. 12 13 14 15 16 17 18 19 20 21 33. In the living room there was a portable blowup airbed covered in linen and blankets which were smeared with fecal matter. I was informed by Ms. Anderson this was where her mother had been sleeping. The fecal matter on the bed was in all conditions, some fresh and some dried onto the bedding. It was also obvious from the stains that dogs had been urinating on the side of the bed. 34. Upon entering the hall bathroom, I found adult cats within the room and they appeared to have been locked in there for weeks or possibly months without any cleaning; the bathtub was ¼ full of liquid that was dark black in color and smelled very foul of urine and feces, and the room was so covered in cat urine and feces that I could not move within without slipping. Betty Cochran accomplished the task of removing the cats from the bathroom. 22 23 24 25 26 35. Further down the hall was a bedroom with a bathroom which appeared to be somewhat functioning in that the water ran, but that bathroom was also covered in fecal matter and urine. There was no possible way of arriving in this room in a sanitary condition or standing within that room in any way to utilize the toilet or shower facilities without standing, walking or handling animal fecal matter and urine. 27 28 36. When Ms. Anderson was asked about the master bedroom, she stated this was the bedroom they used 12 1 2 3 4 5 6 7 8 9 10 11 12 13 to sleep in until rats began biting their heads at night, at which time they moved into the living room where they were now sleeping. Ms. Anderson also said that the end of the house had no electricity because rats had chewed the wiring in the attic. I observed the entire end of the house was covered in spider webs, which were very thick. 37. Upon entering another bedroom and after removing another dog from that room, I found two birds in a cage suspended from the ceiling, one a dove and the other a small parrot-type bird. There were also several kittens, possibly just several days old on the floor along with one adult cat. Five kittens were removed from that room. 38. At this time, I heard a strange sound coming from the mattress in the bedroom, and the mattress appeared to start moving and a small Lhasa-type dog was found in such terrible condition that its hair was matted and missing, it was blind in both eyes and it was unable to open its mouth due to the matted hair on its lips. The dog was emaciated and barely able to move, so it was taken to a veterinarian by Betty Cochran. 14 Smith Decl. at ¶¶ 28-38. 15 deplorable conditions: 16 17 18 19 20 21 22 23 24 25 26 27 28 Officer Cochran described similarly 15. I entered the home at 2557 Harvard Avenue to collect the animals. In spite of my experience dealing with animals I was overwhelmed by the odor. I immediately discovered that I was correct in believing the home was incredibly unhealthy for the animals and they were in need of immediate medical rescue from the despicable environment. The home was full of feces and urine on the floors, counters, and furniture. The house was in a state of disrepair and animals appeared to be all over the home and even living in the cupboards. 16. Of the animals collected, all of the kittens died, all of the adult cats except one died from combinations of feline leukemia and compromised immune systems. The single cat that was euthanized was later caught in the garage at 2557 Harvard and was being eaten by maggots while it was still alive. 17. Several of the puppies suffered from upper respiratory infection and were given courses of antibiotics as treatment. One of those puppies, 13 1 2 3 4 5 6 Rufus, died in my arms from that infection several weeks later. Despite the antibiotics, he was not strong enough to recover from the infection because his immune system was severely compromised due to the e-coli, coccidiosis, roundworms, and enterococcus he carried from his time at 2557 Harvard Avenue. I believe each and every puppy would have had severe problems, including possible death, if not rescued from 2557 Harvard Avenue on October 26, 2005. Cochran Decl. at ¶¶ 15-17 (emphasis added). 4 7 8 Ms. Anderson does not contradict the essential nature of the Officers description of the condition of the home or of the 9 animals therein. Rather, she asserts that, although some of the 10 dogs were not socialized, none were vicious. Anderson Decl. 11 12 at ¶9. She claims that some of the officers were abusing the 13 animals as they were collecting them by poking sticks in their 14 mouths and ensnaring them around the neck. 15 maintains that all of the animals were well fed and that the 16 puppies had scrambled eggs for breakfast the day of the 17 incident. Id. Id. She also Finally, she asserts that the puppies had been 18 dewormed but picked up worms again. Id. She does not dispute 19 20 21 the foul smell, 5 the physical condition of the animals, nor the unsanitary condition of her residence. Ms. Anderson signed a euthanasia form releasing the animals 22 23 4 24 25 26 27 28 Plaintiff objects to certain portions of the Cochran Declaration on the ground that Cochran is not a licensed Doctor of Veterinary Medicine and is unqualified to offer any veterinary medical opinions under Federal Rule of Evidence 701. See, e.g., Doc. 29 at 5, 12. This objection is without merit. Officer Cochran is a proper lay witness and has specialized knowledge gained because of her employment. See U.S. v. Harrison, 64 F.3d 491, 493 (9th Cir. 1993). 5 Ms. Anderson in fact admitted in her deposition that, at the time of the incident, her sense of smell was not functioning properly. Anderson Depo. At 173-74. 14 1 to the custody of Animal Control. 2 recalls that, after signing the euthanasia form releasing the 3 animals, Ms. Anderson pointed at her mother and asked can you Cochran Decl. at ¶12. Cochran 4 euthanize her instead? Cochran Decl. at ¶12. Cochran made sure 5 to have Ms. Anderson sign the euthanasia form because it would 6 7 relieve her of having to reimburse the City of Clovis for the Id. 8 medical care of the animals pursuant to Penal Code § 597.1. 9 at ¶13. 10 she did not know what she was signing because she was not wearing 11 her glasses. 12 Ms. Anderson asserts that, although she signed the form, Anderson Decl. at ¶8. She claims to have told Officer Cochran that she did not have her glasses. Id. 6 Ms. 13 Anderson claims to have handed only the puppies over on the 14 15 condition that they would not be killed. Id. She asserts that 16 she did not turn the remainder of the animals over voluntarily. 17 Id. at ¶8. 18 Despite the fact that the Adult Protective Services worker 19 who arrived on scene to interview Ms. Anderson and Ms. Cloud 20 determined that Ms. Cloud was residing in the residence of her 21 own free will, Corporal Koch and Officer Smith concluded that 22 6 23 24 25 26 27 28 Defendants attempt to discount Ms. Anderson s contrary testimony on this point, emphasizing that, initially, Ms. Anderson claimed to have written no glasses on the back of the Euthanasia form. She has now changed her story slightly, maintaining that she simply told Officer Cochran that she did not have her glasses. Anderson Decl. at ¶8. Defendant also cites to Ms. Anderson s deposition testimony, in which she was presented a copy of the form and asked to read it without her glasses on. She was able to do so, but only by bringing the form close to her face. Anderson Depo. at 167-68. These pieces of evidence go to the weight that a trier of fact would give to Ms. Anderson s testimony, they do not establish that her version of events is a sham, warranting exclusion for purposes of summary judgment. 15 1 conditions of the house were completely uninhabitable and it was 2 not healthy or reasonable to allow Ms. Anderson and Ms. Cloud 3 into the residence. Smith Decl. at ¶39. Smith, who was a sworn 4 building inspector, was able to conclude that the home violated 5 multiple codes and was dangerous to any occupants and exercised 6 7 his authority to vacate the home until it was brought up to Id. at ¶40. Although the home was obviously 8 code. 9 uninhabitable, Smith contacted City of Clovis Building Inspector 10 Ken Baxter for a second opinion before taking such an extreme 11 measure as vacating the home. 12 Id. Mr. Baxter examined the premises and concurred with Smith s 13 opinion that the residence was not inhabitable and needed to be 14 15 condemned. Id. at ¶41. Mr. Baxter red-tagged the residence 16 mandating that no person enter until significant structural and 17 mechanical repairs were made. 18 Cloud were admonished that if they were to re-enter the 19 residence, they would be arrested for trespassing. 20 Inspector Baxter explains in his declaration that placing a red Id. Both Ms. Anderson and Ms. Id. Building 21 tag on a home gives notice to interested parties that there are 22 violations of the code and severe problems within the home. 23 24 Baxter Decl. at ¶14. He does not recall how he became aware that 25 a lender had an interest in the home, but once he became aware of 26 that fact, he was required to send them notice of the red-tagging 27 pursuant to Uniform Housing Code Section 1101.3. 28 16 Id. at ¶17. 1 Subsequent to the home being red-tagged the lender de funded 2 the loan. 3 Id. at ¶7. Steve Baker, a Building Official for the City of Clovis and 4 a state registered quality control engineer, personally visited 5 the residence subsequent to October 26, 2005. He indicates that 6 7 the conditions there were the worst [he has] seen in 30 years of 8 building inspection. 9 residence was a danger to the persons living there. 10 He also confirmed that he signed a Notice and Order on October 11 31, 2005 concerning conditions at the home and that the City was 12 Baker Decl. at ¶4. He confirmed that the Id. at ¶9. required under the Uniform Housing Code to send copies to all 13 parties with a financial interest in the home. Id. at ¶5-6. 14 15 Officer Smith claims to have helped Ms. Anderson retrieve 16 personal items from the residence. Smith Decl. at ¶42. Ms. 17 Anderson disputes this. 18 retrieve the family car from the garage, nor were they permitted 19 to retrieve personal property, including Ms. Cloud s 20 identification, loan documents pertaining to the refinance, She states that she was not permitted to 21 grooming utensils, undergarments, a cell phone, checkbook, ATM 22 card, and medicine. Anderson Decl. at ¶7. According to 23 24 25 26 27 Anderson, the family was told to go to the Clovis Motel and that they would never be allowed back in. Id. Ms. Anderson claims that Defendants refused to provide her with information about the condition of the puppies, access to 28 17 1 those animals, or permission to allow Plaintiffs veterinarian to 2 examine the animals. 3 law enforcement Defendants conspired with other Defendants to FAC at ¶ 33-34. Ms. Anderson alleges that 4 deny her access to this evidence, which prejudice[d] [] her 5 ability to defend herself in the criminal action. Id. at ¶35. 6 Ms. Cloud was charged with multiple counts of animal abuse 7 8 under California Penal Code § 597.1, involving the puppies she 9 brought out of the house voluntarily and the animals found inside 10 the residence. 11 suppress all of the evidence collected from inside the home, 12 The state trial court granted her motion to including any evidence regarding the animals collected therein. 13 Holland Decl., Doc. 32, Ex. F. The case was allowed to proceed 14 15 on the single 16 § 597.1 count involving the puppies Ms. Anderson brought outside 17 the home voluntarily. 18 charge. 7 Ms. Anderson pleaded no contest to the 19 III. STANDARD OF DECISION 20 Summary judgment is appropriate when the pleadings, the 21 22 discovery and disclosure materials on file, and any affidavits 23 show that there is no genuine issue as to any material fact and 24 that the movant is entitled to judgment as a matter of law. 25 Fed. R. Civ. P. 56(c). A party moving for summary judgment 26 27 28 7 Ms. Anderson asserts that she only pled no contest because she could not afford an attorney. This is not the proper forum in which to challenge her plea agreement. 18 1 always bears the initial responsibility of informing the 2 district court of the basis for its motion, and identifying those 3 portions of the pleadings, depositions, answers to 4 interrogatories, and admissions on file, together with the 5 affidavits, if any, which it believes demonstrate the absence of 6 7 8 9 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue 10 at trial, it must affirmatively demonstrate that no reasonable 11 trier of fact could find other than for the moving party. 12 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 13 2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 14 15 885, 888 (9th Cir. 2003) (noting that a party moving for summary 16 judgment on claim as to which it will have the burden at trial 17 must establish beyond controversy every essential element of 18 the claim) (internal quotation marks omitted). 19 an issue as to which the non-moving party will have the burden of 20 proof, the movant can prevail merely by pointing out that there With respect to 21 is an absence of evidence to support the nonmoving party s case. 22 Soremekun, 509 F.3d at 984. 23 24 When a motion for summary judgment is properly made and 25 supported, the non-movant cannot defeat the motion by resting 26 upon the allegations or denials of its own pleading, rather the 27 non-moving party must set forth, by affidavit or as otherwise 28 19 1 provided in Rule 56, specific facts showing that there is a 2 genuine issue for trial. 3 Lobby, Inc., 477 U.S. 242, 250 (1986)). Id. (quoting Anderson v. Liberty Conclusory, speculative 4 testimony in affidavits and moving papers is insufficient to 5 Id. raise genuine issues of fact and defeat summary judgment. 6 To defeat a motion for summary judgment, the non-moving 7 8 party must show there exists a genuine dispute (or issue) of 9 material fact. 10 outcome of the suit under the governing law. 11 at 248. 12 A fact is material if it might affect the Anderson, 477 U.S. [S]ummary judgment will not lie if [a] dispute about a material fact is genuine, that is, if the evidence is such that 13 a reasonable jury could return a verdict for the nonmoving 14 15 party. Id. at 248. In ruling on a motion for summary judgment, 16 the district court does not make credibility determinations; 17 rather, the evidence of the non-movant is to be believed, and 18 all justifiable inferences are to be drawn in his favor. 19 255. Id. at 20 21 22 IV. ANALYSIS A. Federal Civil Rights Claims. 23 1. 24 Plaintiffs federal civil rights claims arise under Title Section 1983. 25 42, United States Code, section 1983 ( Section 1983 ). Section 26 1983 creates a cause of action against any person who, acting 27 28 under the color of state law, violates rights established by the 20 Henderson v. City 1 Constitution or the laws of the United States. 2 of Simi Valley, 305 F.3d 1052, 1056 (9th Cir. 2002). 3 1983 does not create any substantive rights, but is instead a Section 4 vehicle by which plaintiffs can bring federal constitutional and 5 statutory challenges to actions by state and local officials. 6 7 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To 8 prevail on a section 1983 claim, Plaintiff must show 9 (1) Defendants acted under color of state law and (2) violated 10 Plaintiff s federal constitutional or statutory rights. 11 v. City of Seattle, 435 F.3d 1054, 1061 (9th Cir. 2006)(citing 12 Dawson West v. Atkins, 487 U.S. 42, 48 (1988)). 13 Here, there is no dispute that the various defendants acted 14 15 under color of law. The question is whether Defendants violated 16 Plaintiffs federal constitutional rights. Plaintiffs assert 17 that they were subjected to an illegal warrantless entry and 18 search of their residence and that items of their property were 19 seized during the course of that search, Doc. 6 at ¶¶ 7-17(a), 20 allegations which implicate the Fourth Amendment. Defendants 21 assert the defense of qualified immunity. 22 23 2. Qualified Immunity. 24 The Supreme Court recently summarized the purpose of 25 26 27 28 qualified immunity: The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate 21 1 clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. Groh v. Ramirez, 540 U.S. 551 (2004) (Kennedy, J., dissenting) (citing Butz v. Economou, 438 U.S. 478, 507 (1978) (noting that qualified immunity covers mere mistakes in judgment, whether the mistake is one of fact or one of law )). 2 3 4 5 6 7 8 9 10 Because qualified immunity is an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials [will] be resolved prior to discovery. Anderson v. Creighton, 483 U.S. 635, 640, n. 2 (1987). Accordingly, we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). 11 12 13 14 15 16 17 18 Pearson v. Callahan, 129 S. Ct. 808 (Jan. 21. 2009) (parallel 19 20 21 citations omitted). Deciding qualified immunity normally entails a two-step Saucier v. Katz, 533 U.S. 194, 201 (2001). A court 22 analysis. 23 must ask whether, taken in the light most favorable to the 24 plaintiff, the facts alleged show the officers conduct violated 25 a constitutional right. Id. In addition, a court must also 26 inquire whether the right violated was clearly established by 27 asking whether a reasonable officer could believe that the 28 22 1 defendant s actions were lawful under then-existing precedent. 2 Id. 3 which these inquiries take place. District courts have discretion to determine the order in Pearson, 129 S. Ct. at 818- 4 822. 5 The traditional summary judgment approach should be used in 6 7 8 9 10 11 12 analyzing the first step of the Saucier analysis: A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [official s] conduct violated a constitutional right? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury. Wall v. County of Orange, 364 F.3d 1107, 1110-11 (9th Cir.2004) 13 (internal citations and quotations omitted). In the second step, 14 the court must ask whether it would be clear to a reasonable 15 16 official that his conduct was unlawful in the situation 17 confronted. 18 where the reasonableness of the officer s belief that his conduct 19 was lawful depends on the resolution of disputed issues of fact 20 ... summary judgment is not appropriate. 21 Although this inquiry is primarily a legal one, Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th. Cir. 2003) (citing Saucier, 533 22 U.S. at 216 (Ginsburg J., concurring)). 23 24 Applying the second step of the Saucier analysis, a court 25 must ask whether it would be clear to a reasonable official that 26 his conduct was unlawful in the situation confronted. 27 this inquiry is primarily a legal one, where the reasonableness 28 23 Although 1 of the officer s belief that his conduct was lawful depends on 2 the resolution of disputed issues of fact ... summary judgment is 3 not appropriate. Wilkins, 350 F.3d at 956. 8 4 3. 5 Threshold Issue: Decisions. Preclusive Effect of State Court 6 a. State Court Decision on Motion to Suppress. 7 The state court granted Defendant s motion to suppress all 8 of the evidence gathered from inside the Harvard Avenue 9 10 residence, rejecting the prosecution s contention that Ms. 11 Anderson consented to the search, and rejecting the argument that 12 there were exigent circumstances justifying entry without a 13 warrant. 14 at that time that Ms. Cloud consented to the search. 15 See Holland Decl., Ex. F. The government did not argue Id. The Supreme Court has held that nothing in the language of 16 § 1983 indicates any congressional intent to deny binding effect 17 18 19 to a state court judgment when that court, acting within its proper jurisdiction, has given the parties a full and fair 20 8 21 22 23 24 25 26 27 28 An officer is entitled to summary judgment if he had a reasonable, though mistaken, view of either the law or the facts. An officer might correctly perceive all of the relevant facts, but have a mistaken understanding as to whether a particular [action] is legal in those circumstances. Saucier, 533 U.S. at 205. If the officer s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. Id. The converse also is true: Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution. Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001). But, these rules do not displace the traditional summary judgment process. A court may not resolve on summary judgment disputes that go to the reasonableness of the officer s belief that the conduct was lawful or the credibility of the officer s own recollection of the facts. 24 Allen v. McCurry, 449 1 opportunity to litigate the federal issue. 2 U.S. 90, 103-104 (1980). 3 U.S.C. § 1738, federal courts are required to give a state court Under the Full Faith and Credit Act, 28 4 final judgment whatever preclusive effect a state court would 5 give it. See Love v. Correa, 2009 WL 347276 (D. Haw. Feb. 11, 6 7 2009). Thus, if California courts would preclude relitigation of 8 the issue, this Court must abide by the same result. 9 California law, issue preclusion applies if: 10 Under (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; and (2) the previous proceedings resulted in a final judgment on the merits; and (3) the party against whom [issue preclusion] is asserted was a party or in privity with a party at the prior proceeding. 11 12 13 14 People v. Meredith, 11 Cal. App. 4th 1548, 1555 (1993); see also 15 Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). 16 Here, the issues to be decided are not identical to those 17 that were at issue during the suppression hearing. The state 18 19 trial judge was called upon to determine whether the officers 20 conduct did in fact violate the Fourth Amendment under existing 21 precedent. 22 cited by the parties in this case, and determined that, under 23 those authorities, the officers conduct violated the Fourth 24 Amendment. To do this, Judge Gottlieb examined many of the cases Here, however, the inquiry required under the 25 qualified immunity standard is whether the law was clearly 26 established at the time the officers acted whether their entry 27 28 would violate the Fourth Amendment. 25 This is a subtle but 1 significant difference that renders the trial court s decision 2 inapposite. 3 Privity is also required. [I]dentity of parties or privity 4 is a requirement of due process of law. Clemmer v. Hartford 5 Ins. Co., 22 Cal. 3d 865, 874 (1978). Privity exists where the 6 7 non-party is sufficiently close to the original case to afford People v. 8 application of the principle of preclusion. 9 Drinkhouse, 4 Cal. App. 3d 931, 937 (1970); accord Martin v. 10 County of Los Angeles, 51 Cal. App. 4th 688, 700 (1997). 11 California Supreme Court has held: 12 13 14 15 16 The In the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, and adequate representation by, the losing party in the first action as well as that the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication. Clemmer, 22 Cal.3d at 875. 17 There is authority to support a finding that the Officers 18 19 were not in privity with the prosecution. A court in this 20 district has surveyed the state of the law on this question 21 before declining to find that law enforcement offers were in 22 privity with the criminal prosecution: 23 24 25 26 27 28 While the issue of privity must be determined with reference to California law, when dealing with issue preclusion, it is often appropriate to look to the law as it is generally applied in other jurisdictions for additional guidance [unless] ... the state-law question is not a particularly difficult one. Haring v. Prosise, 462 U.S. 306 (1983). California law on privity is anything but clear cut. In looking at issue preclusion in other states, the majority of federal courts have come to the conclusion that privity does 26 1 not exist between law enforcement officers and the criminal prosecution. See, e.g., Kinslow v. Ratzlaff, 158 F.3d 1104, 1106 (10th Cir. 1998) (applying Oklahoma law); Tierney v. Davidson, 133 F.3d 189, 195 (2d Cir. 1998) (applying Vermont law); Kraushaar v. Flanigan, 45 F.3d 1040, 1050-51 (7th Cir. 1995) (applying Illinois law); Smith v. Holtz, 30 F. Supp. 2d 468, 477 (M.D. Pa. 1998) (applying Pennsylvania law). The Eighth Circuit, in a case applying North Dakota law, has found privity to exist between police officers and the criminal prosecution. Patzner v. Burkett, 779 F.2d 1363, 1369 (8th Cir. 1985) ( the deputies in this case can be properly considered in privity with the state in the prior adjudication and thus bound by the state court's determination that the arrest was illegal ). However, the Eighth Circuit's decisions dealing with other states' laws have followed the majority view. See Turpin v. County of Rock, 262 F.3d 779, 782-83 (8th Cir. 2001) (applying Nebraska law, Collateral estoppel cannot be used against the officers in our case, as the officers were neither parties nor in privity with the State in the criminal action and did not have a full and fair opportunity to litigate the issues in the criminal action. ); Duncan v. Clements, 744 F.2d 48, 51 (8th Cir. 1984) (applying Missouri law, collateral estoppel is not appropriate in this case because [police officer], the party against whom collateral estoppel is asserted, was neither a party nor in privity with a party to the prior state criminal proceeding ). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Sanders v. City of Bakersfield, 2005 WL 6267361 (E.D. Cal. Sept. 17 18 19 30, 2005). Applying claim and/or issue preclusion jurisprudence, the 20 decisions made by Judge Gottlieb in the suppression hearing have 21 no binding effect in this litigation as to the individual 22 officers who seek the protection of qualified immunity. 23 24 25 b. Application of Heck v. Humphrey. It their opening brief, Defendants suggest that Plaintiff 26 Diane Anderson must prove she was not convicted of a violation 27 of California Penal Code Section 597.1 or prove that the 28 27 1 conviction was reversed before she may attempt to prove 2 constitutional violations on the part of defendants. 3 at 7. Doc. 28-2 In support of this argument, Defendants cite Heck v. 4 Humphrey, 512 U.S. 477 (1994). Heck stands for the proposition 5 that a plaintiff may not bring a § 1983 action if prevailing on 6 7 8 that action would call into question the validity of [an] outstanding criminal judgment[]. Id. at 486. 9 Defendants argue that Heck is applicable here because 10 Plaintiff pled guilty to violating Penal Code 597.1 concerning 11 the condition of the puppies. 12 Defendants maintain that the success of Plaintiffs contention that the warrantless entry of 13 the Harvard Avenue residence was unlawful will require a 14 15 determination that the puppies were not the subjects of cruelty 16 which would warrant entry to save the other animals. 17 Defendants arguments are misplaced. 18 no contest to the charge concerning the condition of the puppies 19 would not, on its own, justify a warrantless entry. 20 importantly, Ms. Anderson does not contest the deplorable First, Plaintiffs plea of More 21 condition of the puppies. She asserts that they were well fed, 22 and that they had been wormed in the past, but does not contest 23 24 the overwhelming evidence that they were diseased, soaked in 25 their own urine, and otherwise found to be in a hazardous and 26 life-threatening condition. 27 with Plaintiffs Fourth Amendment claims for unlawful entry, Heck is not implicated in connection 28 28 1 2 3 seizure, and use of excessive force. Among other claims Plaintiff Anderson also alleges that her procedural due process rights were violated because law 4 enforcement officers, as part of the prosecution team, refused to 5 provide Ms. Anderson access to the evidence upon which her 6 7 prosecution was premised, even to know what the condition of the 8 puppies was. 9 necessarily call into question the validity of her criminal 10 conviction. 11 concerning denial of access to evidence is barred by Heck. 12 Doc. 34 at 18. Success on this claim would Therefore, the procedural due process claim Defendant is entitled to summary judgment on that claim. 13 14 4. Section 1983 Claim Concerning The Entry. 15 Under Pearson, the court may examine the second step of the 16 Saucier analysis first. 17 determination of whether a reasonable official would have known 18 129 S. Ct at 817. This requires a that his conduct was unlawful in the situation confronted. An 19 officer conducting a search is entitled to qualified immunity 20 21 where clearly established law does not show that the search Id. at 22 violated the Fourth Amendment. 23 inquiry is primarily a legal one, where the reasonableness of the 24 officer s belief that his conduct was lawful depends on the 25 resolution of disputed issues of fact ... summary judgment is not 26 appropriate. 822. Although this Wilkins, 350 F.3d at 956. 27 Defendants advance several justifications for their entry 28 29 1 into the residence. 2 contention that extreme and exigent circumstances presenting a 3 clear and present danger to public health and safety justified The first, and most compelling, is their 4 warrantless entry to protect the lives of the animals remaining 5 in the home after the puppies were found to be in deplorable 6 7 condition; the health of Ms. Cloud, an elderly woman convalescing 8 in the home; and to abate any occupancy of the residence which 9 was hazardously uninhabitable. 10 11 12 The parties largely agree about the relevant authorities. Both cite Broden v. Marin Humane Society, 70 Cal. App. 4th 1212 (1999), which concerned the warrantless entry into a pet store by 13 an animal control officer responding to reports of stench and 14 15 flies at the store. Upon arrival, and based on her experience, 16 the officer concluded that dead animals were rotting inside the 17 store. 18 animal control officer, along with police officer back-up, 19 entered the store without a warrant. 20 Id. at 1217. After trying to locate the owner, the Id. The court found that Penal Code 597.1 is a self-contained 21 regulatory scheme covering treatment of animals permitting, 22 among other things the seizure and impoundment of animals if an 23 24 officer has reasonable grounds to believe that very prompt 25 action is required to protect the health or safety of those 26 animals. 27 language is the equivalent of the exigent circumstances Id. at 1216. The court held that this statutory 28 30 1 2 3 4 5 6 7 exception familiar to search and seizure law : That exception allows entry without benefit of a warrant when a law enforcement officer confronts an emergency situation requiring swift action to save life, property, or evidence. [citations] There is no litmus test for emergencies; every case must be explained in light of what was known to the officer at the time of entry. Id. at 1220-21. The Broden court extended the exigent circumstances 8 exception, which permits entry when persons inside a structure 9 are in immediate need of aid, to animals: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There is no question that law enforcement officers may make a warrantless entry of a building when there are reasonable grounds for believing that persons inside are in need of immediate aid. (E.g., Tamborino v. Superior Court (1986) 41 Cal. 3d 919, 924.) Section 597.1 clearly contemplates that animals shall receive a similar solicitude. Here, Officer Kane received information from a presumptively reliable citizen complainant (see People v. Ramey (1976) 16 Cal. 3d 263, 269), information she verified when she went to the scene. Kane s visit, together with her past experience, gave a whole new dimension to the report of a bad smell; Kane treated the smell as that of dead animals. The fact that flies were trying to get into the building was powerful corroboration for believing dead animals were inside. Kane could not see inside the building. The landlord would be no help because he did not have a key. Repeated attempts to reach Broden were unavailing and, with no answering machine, held no prospect of success. Short of visible slaughter or blood oozing under the door, a more compelling case for immediate entry cannot be imagined. Substantial evidence supports the findings of the hearing officer and the trial court that Kane s warrantless entry was justified by exigent circumstances. Id. at 1222. An unpublished decision issued by the Northern District of 26 California in a § 1983 case applied Broden to permit the 27 warrantless entry into a mobile home under the exigent 28 31 Jackson v. Silicon Valley Animal 1 circumstances exception. 2 Control Auth., 2008 WL 4544455 (N.D. Cal. Oct. 2, 2008). 3 Jackson, an officer received a complaint about animals in bad In 4 health in the Jacksons mobile home. He also observed outside 5 the home a dog wearing a diaper to control bleeding and another 6 7 dog with a broken jaw. Id. at *8. These circumstances justified Id. 9 8 warrantless entry under California Penal Code § 597.1. 9 Plaintiffs argue that both Broden and Jackson are 10 distinguishable because Broden involved the search of a business 11 and Jackson the search of a mobile home, not a house. 12 A distinction may be drawn between the privacy interest one has in 13 a place of business and the privacy interest one has in one s 14 15 home. New York v. Burger, 482 U.S. 691, 699-700 (1987) ( An 16 expectation of privacy in commercial premises [] is different 17 from, and indeed less than, a similar expectation in an 18 individual s home. ). 19 Broden, the exigent circumstances exception to the warrant 20 requirement, is applicable to non-mobile residences. However, the basic principle applied in See, e.g., 21 United States v. Brooks, 367 F.3d 1128, 1135 (9th Cir. 2004) 22 Moreover, Plaintiffs attempt to distinguish Jackson because 23 24 it involved a mobile home is without merit. Fourth Amendment 25 9 26 27 28 Plaintiff correctly points out that the Jackson court also found that the search was alternatively justified under the automobile exception to the warrant requirement because the residence was a mobile home. 2008 WL 4544455, *8. However, this does not diminish Jackson as persuasive authority for the proposition that the circumstances were alternatively justified under the exigent circumstances exception. 32 1 jurisprudence has carved out a separate exception to the warrant 2 requirement for automobiles and extended that exception to mobile 3 homes. Cal. v. Carney, 471 U.S. 386, 393 (1985). Carney, the 4 seminal case on this issue, created a conclusive presumption of 5 exigency when the targeted residence is a mobile home on the 6 7 ground that the home could be driven away and because there is a 8 reduced expectation of privacy stemming from the pervasive 9 regulation of vehicles capable of traveling on the highway. 10 at 391-92. 11 circumstances presented here, did not otherwise present an 12 exigency. Id. Notably, the circumstances in Carney, unlike the Id. 13 14 15 16 17 18 19 20 21 22 Exigent circumstances are those circumstances that would cause a reasonable person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. To prove that such circumstances existed, the government cannot rely on speculation about what may or might have happened. Instead, it must point to specific and articulable facts which, taken together with rational inferences, support the warrantless intrusion. A court, in turn, must view the exigencies from the totality of circumstances known to the officers at the time of the warrantless intrusion. It must consider whether, in light of these circumstances, an officer's decision to enter without a warrant was objectively reasonable. 23 24 25 26 27 United States v. Black, 482 F.3d 1035, 1042 (9th Cir. 2007) (internal citations and quotations omitted). Here, the officers arrived at the scene having received numerous, prior public complaints and reports of foul odors and 28 33 1 barking at the residence. 2 October 26, 2009, they could smell feces and urine from outside 3 the front gate, and Officer Smith observed violations of the Upon arriving at the residence on 4 building code in plain view in the garage once Ms. Anderson came 5 outside through it. These observations alone might not have 6 7 justified entry. However, once Ms. Anderson began bringing the 8 puppies outside, the situation changed. 9 horrible physical condition, stank of urine, and were visibly 10 ill. 11 house, Officer Smith could tell there were many more animals 12 The dogs were in Even after all of the puppies had been removed from the remaining inside. Both officers noticed that a terrible smell 13 was coming from inside the house. At this juncture, even without 14 15 the additional, alarming circumstances involving the health of 16 Ms. Cloud, no clearly established law prohibited the Officers 17 from entering without a warrant. 18 reasonably believed that entry was warranted under the exigent 19 circumstances exception as articulated in Broden and Jackson. 20 To the contrary, the Officers The situation was compounded by the Officers interaction 21 with Ms. Cloud, an elderly woman whom the Officers knew was 22 convalescing in the home after a bout with tetanus. She was 23 24 presented to the officers in a wheelchair with what the Officers 25 believed to be feces on her person. Ms. Cloud also had an open 26 trachiotomy wound. 27 to take action to remove Ms. Cloud from the premises, the Although the elder services officer declined 28 34 1 Officers reasonably believed, based on undisputed evidence, that 2 Ms. Cloud s health and safety were seriously in jeopardy and 3 reasonably demanded that the home be inspected. Under the 4 circumstances, the Officers are entitled to qualified immunity as 5 a matter of law because, based on undisputed objective evidence 6 7 of conditions hazardous to animal and human health and safety, 8 clearly established law authorized their warrantless entry into 9 the residence based on their reasonable belief that the exigent 10 circumstances exception applied. 11 12 Defendants are not entitled to summary adjudication on their alternative contention that they had consent to enter the 13 residence, because both Ms. Anderson and Ms. Cloud s consent are 14 15 disputed. This is not material to the outcome of the Fourth 16 Amendment claim, however, as only one exception to the warrant 17 requirement need apply. 18 Defendants also argue, in the alternative, that the 19 Community Caretaking Exception and a provision of the Clovis 20 Municipal code justified entry without a warrant. Although these 21 are well taken defenses, it is unnecessary to decide these issues 22 to resolve Defendants motion for summary judgment. 23 24 25 26 5. Section 1983 Excessive Force Claim. Plaintiff Anderson s entire excessive force claim is 27 premised on her allegation that an unnamed officer grabbed her 28 35 1 elbow to prevent her from blocking the door to the residence as 2 the Officers attempted to enter the home. 3 dispute whether this occurred, Ms. Anderson s version of the Although Defendants 4 events is accepted for purposes of summary judgment. Ms. 5 Anderson stated that she suffered no physical injury as a result 6 7 of this contact. The contact simply made her mad. She does 8 not describe the degree of force nor that a mark or bruise 9 resulted. 10 11 12 Whether excessive force was used during a search is judged under the Fourth Amendment s objective reasonableness standard as articulated in Graham v. Connor, 490 U.S. 386, 395 (1989). See 13 Wood v. Kitsap County, 2007 WL 1306548, *8 (W.D. Wash. May 3, 14 15 2007). Determining whether the force used to effect a 16 particular seizure is reasonable under the Fourth Amendment 17 requires a careful balancing of the nature and quality of the 18 intrusion on the individual s Fourth Amendment interests against 19 the countervailing governmental interests at stake. 20 U.S. at 396 (internal quotation omitted). Graham, 490 The reasonableness of 21 a particular use of force must be judged from the perspective of 22 a reasonable officer on the scene, rather than with the 20/20 23 24 vision of hindsight. Id. An individual s limited right to 25 offer reasonable resistance is only triggered by an officer s bad 26 faith or provocative conduct. 27 573, 580 (9th Cir. 1992). United States v. Span, 970 F.2d 28 36 1 Not every push or shove, even if it may later seem 2 unnecessary in the peace of a judge's chambers, violates the 3 Fourth Amendment. Graham, 490 U.S. at 396 (internal quotations 4 and citation omitted). Where the amount of force used was de 5 minimis in light of the asserted government interest, an 6 7 excessive force claim may be invalid as a matter of law. 8 Nakamura v. City of Hermosa Beach, 2009 WL 1445400, *11 (C.D. 9 Cal. 2009) (force used was de minimis where, during the course of 10 arrest, officer told plaintiff to sit down and simultaneously put 11 his right hand on Plaintiff s shoulder, shoving him to the 12 ground; and Plaintiff s buttocks made contact with the ground 13 but [he] sustained no bruises or cuts ). Here, Plaintiff s only 14 15 allegation is that an unnamed officer grabbed her elbow to 16 prevent her from blocking the door to the house. She sustained 17 no injury. 18 minimis and reasonable under the circumstances. 19 justifiably entered the home without a warrant and was entitled 20 to ensure that his entry was not blocked. This use of force, if it occurred, was both de The officer Defendants motion for 21 summary adjudication of the excessive force claim is GRANTED. 22 23 24 25 26 27 6. Section 1983 Due Process Claims. a. Substantive Due Process - Loss of Home. Plaintiffs assert that the unlawful acts of Defendants resulted in the loss of their home in violation of their substantive due process rights. This claim is grounded upon 28 37 1 Plaintiffs assertion that their re-finance loan was cancelled 2 because City of Clovis employees, including Officer Smith, 3 contacted their lender. Plaintiffs suggest that Officer Smith 4 acquired their lender s contact information by reading related 5 documents while he was inside their home. Plaintiffs do not 6 7 dispute, however, that once the home was red tagged, Clovis was 8 required under the Uniform Housing Code to notify all parties 9 with a financial interest in the home. 10 information for their lender was a matter of public record, 11 easily determined based on the address and legal description fo 12 The name and contact the real property. 13 Plaintiffs cite no authority for the proposition that loss 14 15 of one s home, without more, implicates a substantive due process 16 right protected by the Fourteenth Amendment. The Fourteenth 17 Amendment bars any State [from] depriv[ing] any person of life, 18 liberty, or property, without due process of law. 19 amend. XIV, § 1. 20 this Clause guarantees more than fair process, and the liberty U.S. Const. Under substantive due process jurisprudence, 21 it protects includes more than the absence of physical 22 restraint. Washington v. Glucksberg, 521 U.S. 702, 719 (1997). 23 24 In this conception, due process encompasses certain fundamental Reno v. Flores, 507 U.S. 292, 301-302 (1993). 25 rights. 26 to housing is not a fundamental right. 27 U.S. 56 (1972). The right Lindsey v. Normet, 405 Substantive due process also forbids the 28 38 1 government from depriving a person of life, liberty, or property 2 in such a way that shocks the conscience or interferes with the 3 rights implicit in the concept of ordered liberty. Corales v. 4 Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (internal citations 5 and quotations omitted). There is nothing shocking about the 6 7 8 City of Clovis condemning the Harvard Avenue residence, a public nuisance, and then complying with the Uniform Housing Code. 9 b. Procedural Due Process. 10 (1) Refusal of Access to Evidence. 11 Plaintiff Anderson alleges that her procedural due process 12 rights were violated by Defendants refusal to provide her access 13 14 to or information about the condition of the animals seized from 15 her residence. 16 concerning Heck v. Humphrey, see infra Part IV.A.3.b, Defendants 17 are entitled to summary judgment on this claim because Plaintiff 18 cannot bring a § 1983 claim that would, if successful, call into 19 FAC at ¶27. As discussed above in the section question the validity of her underlying criminal conviction. 20 21 (2) Destruction of Pets Without Due Process. 22 Plaintiffs also complain that they were not afforded a post23 24 25 26 27 28 deprivation hearing required under California Penal Code § 597.1(f), which provides: Whenever an officer authorized under this section seizes or impounds an animal based on a reasonable belief that prompt action is required to protect the health or safety of the animal or the health or safety of others, the officer shall, prior to the commencement 39 1 2 3 4 5 6 of any criminal proceedings authorized by this section, provide the owner or keeper of the animal, if known or ascertainable after reasonable investigation, with the opportunity for a postseizure hearing to determine the validity of the seizure or impoundment, or both. (1) The agency shall cause a notice to be affixed to a conspicuous place where the animal was situated or personally deliver a notice of the seizure or impoundment, or both, to the owner or keeper within 48 hours, excluding weekends and holidays. The notice shall include all of the following: 7 8 (A) The name, business address, and telephone number of the officer providing the notice. 9 (B) A description of the animal seized, including any identification upon the animal. 10 11 12 13 14 15 16 17 (C) The authority and purpose for the seizure, or impoundment, including the time, place, and circumstances under which the animal was seized. (D) A statement that, in order to receive a postseizure hearing, the owner or person authorized to keep the animal, or his or her agent, shall request the hearing by signing and returning an enclosed declaration of ownership or right to keep the animal to the agency providing the notice within 10 days, including weekends and holidays, of the date of the notice. The declaration may be returned by personal delivery or mail. 18 19 20 21 (E) A statement that the cost of caring for and treating any animal properly seized under this section is a lien on the animal and that the animal shall not be returned to the owner until the charges are paid, and that failure to request or to attend a scheduled hearing shall result in liability for this cost. 22 23 24 25 26 (2) The postseizure hearing shall be conducted within 48 hours of the request, excluding weekends and holidays. The seizing agency may authorize its own officer or employee to conduct the hearing if the hearing officer is not the same person who directed the seizure or impoundment of the animal and is not junior in rank to that person. The agency may utilize the services of a hearing officer from outside the agency for the purposes of complying with this section. 27 28 (3) Failure of the owner or keeper, or of his or her agent, to request or to attend a scheduled hearing 40 1 2 3 4 5 6 7 8 9 10 11 12 13 shall result in a forfeiture of any right to a postseizure hearing or right to challenge his or her liability for costs incurred. (4) The agency, department, or society employing the person who directed the seizure shall be responsible for the costs incurred for caring and treating the animal, if it is determined in the postseizure hearing that the seizing officer did not have reasonable grounds to believe very prompt action, including seizure of the animal, was required to protect the health or safety of the animal or the health or safety of others. If it is determined the seizure was justified, the owner or keeper shall be personally liable to the seizing agency for the cost of the seizure and care of the animal, the charges for the seizure and care of the animal shall be a lien on the animal, and the animal shall not be returned to its owner until the charges are paid and the seizing agency or hearing officer has determined that the animal is physically fit or the owner demonstrates to the seizing agency's or the hearing officer's satisfaction that the owner can and will provide the necessary care. In this case, no Defendant claims to have provided Ms. 14 Anderson with notice and/or a hearing under section 597.1. 15 Instead, Defendants assert that Ms. Anderson surrendered her 16 ownership interest in the animals by signing the euthanasia form. 17 Doc. 28-2 at 19. Ms. Anderson denies having knowingly 18 19 surrendered her interest in all of the animals. Viewing the 20 facts in a light most favorable to Ms. Anderson, the court must 21 assume that the waiver was invalid because she could not read it 22 without her glasses. 23 Ms. Anderson s rights under section § 597.1 by depriving her of 24 The fact that Defendants may have violated her pets without a valid waiver of those rights does not 25 necessarily make out a procedural due process claim. 26 27 28 The Due Process Clauses of the Fifth and Fourteenth Amendments provide that the government cannot deprive a person of 41 1 life, liberty, or property without due process of the law. 2 trigger Due Process protections, deprivation must be intentional; 3 negligent deprivation does not violate due process. To Daniels v. 4 Williams, 474 U.S. 327, 330-31 (1986) ( Where a government 5 official s act causing injury to life, liberty, or property is 6 7 8 9 merely negligent, no procedure for compensation constitutionally required. ) (citations omitted). Here, Plaintiff essentially alleges that she was not 10 afforded the procedural rights supplied by California Penal Code 11 section 597.1. 12 This is insufficient. Summary judgment on a procedural due process claim is proper were plaintiff establishes 13 only that she was deprived of a liberty interest because 14 15 established state procedures were not followed, [and] not that Vinson 16 the established state procedure effected a deprivation. 17 v. Cambell County Fiscal Court, 820 F.2d 194, 199 (6th Cir. 18 1987). 19 other grounds by Davis v. Williams, 474 U.S. 327 (1986), rejected 20 a procedural due process claim based upon the unauthorized Paratt v. Taylor, 451 U.S. 527, 543 (1981), overruled on 21 failure of agents of the State to follow established state 22 procedure. The Paratt Court, applying Nebraska law, reasoned: 23 24 25 26 27 28 There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See 42 Neb.Rev.Stat. § 81-8,209 et seq. (1976). 1 2 3 Id. at 543. The Ninth Circuit has determined that California law 4 provides an adequate post-deprivation remedy for property 5 deprivations by the state. Barnett v. Centoni, 31 F.3d 813, 816- 6 7 17 (9th Cir. 1994) (citing Cal. Gov. Code §§ 810-895). Pets are Keniston v. Roberts, 717 F.2d 1295, 1298 8 considered property. 9 (9th Cir. 1983). 10 invoked California s post-deprivation procedures to obtain 11 relief. 12 Ms. Anderson could have, but apparently never Even if she had done so, she nevertheless has failed to demonstrate that those remedies were inadequate in order to 13 maintain a procedural due process action. See, e.g., Timberline 14 15 N.W., Inc. v. Hill, 141 F.3d 1179, *4 (9th Cir. 1998) (Table). 16 Plaintiffs have not attempted to allege that the remedies 17 available under state law are inadequate. 18 that Defendants failed to follow established state procedures. 19 This may form the basis for a claim under state law, but does not 20 support a procedural due process claim. They merely allege Defendants motion for 21 summary judgment is GRANTED. 22 23 7. 24 Defendants move for summary judgment on all federal claims 25 26 City of Clovis/Monell Liability. against the City of Clovis on the ground that Plaintiffs have not established municipal liability under Monell v. New York City 27 Dept. of Social Servs., 436 U.S. 658, 690, n. 55 (1978). 28 43 A local 1 government unit may not be held liable for the acts of its 2 employees under a respondeat superior theory. 3 local government unit itself must cause the constitutional Id. at 691. The 4 deprivation. Gillette v. Delmore, 979 F.2d 1342, 1346 (9th 5 Cir.1992), cert. denied, 510 U.S. 932 (1993). To maintain a 6 7 section 1983 claim against a local government, a plaintiff must 8 establish the requisite culpability (a policy or custom 9 attributable to municipal policymakers) and the requisite 10 causation (the policy or custom as the moving force behind the 11 constitutional deprivation). 12 Monell, 436 U.S. at 691-694. Here, Plaintiffs allege that the City of Clovis failed to 13 reasonably hire, well-educate, instruct, train, manage, 14 15 supervise and control the conduct of its officers and 16 employees, and that violations of plaintiffs civil rights were 17 committed as a result.... 18 plaintiff alleging a policy of failure to train peace officers 19 must show: 20 21 22 23 24 Doc. 6 at ¶5. A section 1983 (1) he/she was deprived of a constitutional right; (2) the local government entity had a training policy that amounts to deliberate indifference to constitutional rights of persons with whom its peace officers are likely to come into contact; and (3) his/her constitutional injury would have been avoided had the City properly trained those officers. 25 Blankenhorn v. City of Orange, 485 F.3d 462, 484 (9th Cir. 2007). 26 Plaintiffs have produced absolutely no evidence to support a 27 deliberate indifference claim. Nor is there evidence of any lack 28 44 1 2 3 of training or supervision of its officers. In response to the motion for summary judgment, Plaintiffs assert that their claim against the City of Clovis should survive 4 because the City relied upon a facially unconstitutional city 5 ordinance for their actions. As the entry of the residence was 6 7 justified under the exigent circumstances exception to the 8 warrant requirement, Defendants need not rely on the Clovis 9 Municipal Code to justify entry. 10 against the City of Clovis arising out of the Clovis Municipal 11 Code is moot. 12 Accordingly, Plaintiffs claim Defendants are entitled to summary judgment as to Plaintiffs claims against the City of Clovis 13 14 8. Federal Conspiracy Claim. 15 Plaintiffs sixth count alleges a violation of federal 16 civil rights based on a conspiracy. 17 Plaintiffs allege that the named Defendants conspired with the 18 FAC at 16. Specifically, prosecuting attorney to violate California Penal Code § 1054.1 19 and the duty to preserve evidence. For the reasons set forth 20 21 above, any claim based upon the failure to preserve evidence is 22 barred by Heck. 23 right of action against two or more actors who conspire to deny 24 Federal Civil rights. 25 1985, a plaintiff must prove some racial, or perhaps otherwise 26 Title 42 U.S.C. § 1985(3) permits a private However, to prove a violation of section class-based, invidiously discriminatory animus behind the 27 conspirators action. The conspiracy, in other words, must aim 28 45 1 at a deprivation of the equal enjoyment of rights secured by the 2 law to all. 3 2001) (citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 4 No such evidence is presented here. 5 6 B. State Law Claims. 7 The FAC also alleges numerous, related state law claims, 8 including Trespass, Invasion of Privacy, Conversion, Assault, 9 Battery, Abuse of Process, Intentional Infliction of Emotional 10 Distress, Conspiracy, and Interference with Prospective Economic 11 Advantage. The Assault and Battery claims fail as a matter of 12 13 law because the allegedly offensive contact was justified under 14 the circumstances. 15 153 Cal. App. 4th 1230, 1248 (2007) (citing Cal. Penal Code § 16 835a for the proposition that a battery is not committed by a 17 police officer unless the plaintiff proves the officer used 18 See, e.g., Venegas v. County of Los Angeles, unreasonable force ). 19 A federal court has discretion to exercise jurisdiction over 20 21 state law claims after dismissing every claim over which it had See 28 U.S.C. § 1367(c) ( The district 22 original jurisdiction. 23 courts may decline to exercise supplemental jurisdiction over a 24 claim ... if ... the district court has dismissed all claims over 25 which it has original jurisdiction. ); Foster v. Wilson, 504 F.3d 26 1046, 1051 (9th Cir. 2007). The district court declines to 27 exercise jurisdiction over the remaining state law claims, which 28 46 1 involve the application of state law doctrines to efforts by City 2 of Clovis personnel to address what are essentially community 3 issues. 4 V. CONCLUSION 5 6 For the reasons set forth above, Defendants are entitled to 7 summary judgment on all of the federal claims in this case. 8 9 Defendants are also entitled to summary judgment on the state law 10 assault and battery claims. The district court declines to 11 exercise its jurisdiction over the remaining state law claims. 12 Defendants shall submit a form of order consistent with this 13 memorandum decision within five days of electronic service. 14 15 SO ORDERED 16 17 Dated: July 10, 2009 18 19 20 ___/s/ Oliver W. Wanger_____ Oliver W. Wanger United States District Judge. 21 22 23 24 25 26 27 28 47
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