Bush v. O'Brien et al, No. 3:2009cv00947 - Document 32 (N.D. Cal. 2010)

Court Description: ORDER GRANTING DEFENDANT O'BRIENS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 8/23/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 8/23/2010)

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Bush v. O'Brien et al Doc. 32 1 2 *E-Filed 8/23/10* 3 4 5 6 United States District Court For the Northern District of California 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 ORDER GRANTING DEFENDANT O’BRIEN’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 13 v. 14 15 No. C 09-0947 RS (PR) JAMES A. BUSH, MICHAEL O’BRIEN, et al., Defendants. 16 / 17 INTRODUCTION 18 This is a federal civil rights action brought by a pro se state prisoner pursuant to 42 19 20 U.S.C. § 1983 in which plaintiff alleges that defendant O’Brien, a police officer with the San 21 Jose Police Department, violated his right to due process by having his car towed, 22 impounded for over two months, which resulted in the towing company selling the vehicle to 23 cover the storage costs. Defendants move for summary judgment. For the reasons stated 24 herein, defendants’ motion for summary judgment is GRANTED as to all claims against all 25 served defendants. 26 // 27 // 28 No. C 09-0947 RS (PR) ORDER GRANTING MOT. FOR SUMM. J. Dockets.Justia.com BACKGROUND 1 2 The following facts are undisputed unless specifically noted otherwise. In 2007,1 the 3 San Jose Police Department (“SJPD”) seized plaintiff’s vehicle on the belief that it had been 4 involved in a hit-and-run accident. On May 18, 2007, defendant O’Brien, a police officer 5 with the SJPD, was assigned to investigate the possible hit-and-run involving plaintiff’s 6 vehicle. Soon after, on May 20, plaintiff reported to defendant that his vehicle had been 7 stolen. United States District Court For the Northern District of California 8 Defendants contend that on May 22, plaintiff called SJPD to report that he lent his 9 vehicle to John Martinez, who was later identified as Roberto Diaz, who was the hit-and-run 10 suspect. Defendants contend that this report to SJPD conflicted with the information plaintiff 11 gave defendant O’Brien on May 20. 12 Plaintiff asserts that during the investigation, he demanded the return of his vehicle 13 under Cal. Veh. Code § 22655(b), which mandates the release of an impounded vehicle 14 within forty-eight hours. Defendants refused his request on grounds that he was pursuing a 15 criminal investigation beyond the scope of the possible hit-and-run. Plaintiff asserts that 16 defendant O’Brien unlawfully detained his vehicle for roughly two and a half months without 17 conducting an investigation, thereby causing plaintiff to incur $4,500 in towing and storage 18 charges. According to the complaint, plaintiff was notified by Leo’s Towing that his car 19 would be sold at auction if plaintiff could not pay the entire fee by the requisite time. 20 Plaintiff could not afford to pay the fee, and consequently his vehicle was sold. Plaintiff 21 asserts that defendant O’Brien failed to investigate with the knowledge that a botched 22 investigation would permit the continued retention of the vehicle, leading to excessive 23 storage fees which plaintiff could not afford. According to plaintiff, by so doing, defendants 24 unlawfully seized and held the car, and in the end, allowed the towing company to commit 25 conversion by selling the vehicle. 26 1 The parties give differing dates for when the alleged accident occurred, or when it was towed. Plaintiff says that defendants believe the accident occurred in March 2007, whereas 28 defendants assert that the accident and seizure took place in May 2007. 27 2 No. C 09-0947 RS (PR) ORDER GRANTING MOT. FOR SUMM. J. United States District Court For the Northern District of California 1 According to defendant O’Brien, during his investigation for grand theft auto, he 2 received a report that plaintiff had lent the vehicle to the hit-and-run suspect. Because of the 3 conflicting reports from his investigation — that the vehicle was a loan, that the vehicle was 4 stolen — O’Brien began to investigate the potential false report of a crime. O’Brien 5 concluded that plaintiff or his vehicle, or both, were “potentially involved in a number of 6 possible crimes, including a hit-and-run, grand theft auto, and/or a false crime report to a 7 police officer based on the conflicting reports provided by [p]laintiff.” (Defs.’ Mot. for 8 Summ. J. (“MSJ”), Decl. O’Brien ¶ 9.) O’Brien asserts that he closed his investigation on 9 June 14, and released the vehicle to Century Tow on June 15. 10 STANDARD OF REVIEW 11 Summary judgment is proper where the pleadings, discovery and affidavits 12 demonstrate that there is “no genuine issue as to any material fact and that the moving party 13 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those 14 which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 15 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 16 reasonable jury to return a verdict for the nonmoving party. Id. 17 The party moving for summary judgment bears the initial burden of identifying those 18 portions of the pleadings, discovery and affidavits which demonstrate the absence of a 19 genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where 20 the moving party will have the burden of proof on an issue at trial, it must affirmatively 21 demonstrate that no reasonable trier of fact could find other than for the moving party. On an 22 issue for which the opposing party by contrast will have the burden of proof at trial, as is the 23 case here, the moving party need only point out “that there is an absence of evidence to 24 support the nonmoving party’s case.” Id. at 325. 25 Once the moving party meets its initial burden, the nonmoving party must go beyond 26 the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that 27 there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with 28 3 No. C 09-0947 RS (PR) ORDER GRANTING MOT. FOR SUMM. J. United States District Court For the Northern District of California 1 disputes over material facts and “factual disputes that are irrelevant or unnecessary will not 2 be counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in 3 search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 4 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the 5 evidence that precludes summary judgment. Id. If the nonmoving party fails to make this 6 showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 7 323. 8 DISCUSSION 9 The Court construes plaintiff’s claims to allege that the seizure and selling of his 10 vehicle violated his Fourth (protection from unlawful seizures), Fifth (protection from a 11 government taking without due process), and Fourteenth Amendment (due process) rights. 12 I. 13 Seizure and Detention of the Vehicle under the Fourth Amendment The Fourth Amendment proscribes “unreasonable searches and seizures.” U.S. 14 Const. amend. IV; Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995). Warrantless 15 seizure of an automobile which officers have probable cause to believe was used as an 16 instrumentality in the commission of, or in aiding or abetting in the commission of, any 17 felony, does not violate the Fourth Amendment. See Florida v White, 526 US 559, 565–66 18 (1999). Probable cause is a flexible, common-sense standard. It merely requires that the 19 facts available to the officer would “warrant a man of reasonable caution in the belief . . . that 20 certain items may be contraband or stolen property or useful as evidence of a crime;” it does 21 not demand any showing that such a belief be correct or more likely true than false. U.S. v. 22 Dunn, 935 F2d 1053, 1057 (9th Cir. 1991). 23 Defendants have provided evidence, by way of sworn declarations, that they had 24 probable cause that the car was involved in a crime or crimes to seize and impound, and later 25 to detain, the vehicle. Plaintiff, however, offers only conclusory allegations, but no evidence 26 to indicate that the SJPD lacked probable cause to impound plaintiff’s car. Given the lesser 27 expectation of privacy accorded to searches and seizures of vehicles, see New York v. Class, 28 4 No. C 09-0947 RS (PR) ORDER GRANTING MOT. FOR SUMM. J. 1 475 U.S. 106, 112 (1986), and the fact the vehicle is highly mobile, and therefore capable of 2 being easily put beyond the reach of the police, see California v. Carney, 471 U.S. 386, 393 3 (1985), plaintiff has not offered evidence that his Fourth Amendment rights were violated by 4 defendants’ seizure of his vehicle. “[A] complete failure of proof concerning an essential 5 element of the nonmoving party’s case necessarily renders all other facts immaterial.” 6 Celotex, 477 U.S. at 322–23. The record shows no evidence that a factual dispute exists as to 7 whether defendants had probable cause to seize the vehicle. Therefore, summary judgment is 8 GRANTED in favor of defendants on this claim. 9 II. United States District Court For the Northern District of California 10 Fifth and Fourteenth Amendment The Takings Clause of the Fifth Amendment provides that “private property [shall 11 not] be taken for public use without just compensation.” U.S. Const. amend. V. To state a 12 claim under the Takings Clause, a plaintiff must first demonstrate a constitutionally protected 13 property interest. Only after such a showing will the court inquire whether expropriation of 14 that interest constitutes a constitutional “taking.” Id. 15 Ordinarily, due process of law requires notice and an opportunity for some kind of 16 hearing prior to the deprivation of a significant property interest. See Memphis Light, Gas & 17 Water Div. v. Craft, 436 U.S. 1, 19 (1978). According to plaintiff’s statement of the facts, he 18 was provided with adequate procedural process before and after the alleged taking occurred. 19 He knew the vehicle had been impounded, and was informed prior to the final deprivation of 20 plaintiff’s interest in the property, that it was available for release, and that it would be sold if 21 he did not pay the fee. That plaintiff did not take advantage of the opportunity available to 22 him does not lead to the conclusion that he was deprived of due process. In sum, plaintiff 23 has not brought forward evidence that his Fifth or Fourteenth Amendment rights were 24 violated by defendants’ seizure and sale of his vehicle. Furthermore, plaintiff has not alleged 25 or shown that his property was taken by the government for public use as the money received 26 for the sale of the vehicle went to the towing company, not the government. Therefore, the 27 Takings Clause is not applicable to plaintiff’s claim. See Vance v. Barrett, 345 F.3d 1083, 28 5 No. C 09-0947 RS (PR) ORDER GRANTING MOT. FOR SUMM. J. 1 1089 (9th Cir. 2003). “[A] complete failure of proof concerning an essential element of the 2 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 3 322–23. Therefore, summary judgment is GRANTED in favor of defendants on this claim. 4 III. United States District Court For the Northern District of California 5 Plan to Deprive Plaintiff of His Vehicle Plaintiff has failed to support his claim that defendant O’Brien acted intentionally to 6 deprive him of his vehicle permanently. Other than offering conclusory allegations, plaintiff 7 has failed to rebut defendants’ showing “that there is an absence of evidence to support the 8 nonmoving party’s case” that defendants are liable for intentionally depriving plaintiff of his 9 vehicle permanently, and therefore he is not entitled to relief regarding the loss of his vehicle. 10 CONCLUSION 11 For the foregoing reasons, defendants’ motion for summary judgment (Docket No. 16) 12 is GRANTED as to all claims against Officer Flores and the San Jose Police Department. 13 Leo’s Towing was never served with the complaint, and is hereby TERMINATED from this 14 action, and all claims against it are DISMISSED. It is unnecessary to consider defendants’ 15 qualified immunity defense, as the claims are dismissed on other grounds. 16 Plaintiff’s motion for an extension of time to file an opposition (Docket No. 24) is 17 DENIED. Plaintiff had notice of defendants’ MSJ on February 2, 2010, the date of its filing. 18 Plaintiff did not move for an extension of time until June 2, 2010, some four months after the 19 MSJ was filed, and three months after plaintiff’s opposition was due. Plaintiff, having had 20 both notice and time to file an opposition and having failed to so, his motion for an extension 21 of time is DENIED. 22 This order terminates Docket Nos. 16 & 24. 23 The Clerk shall enter judgment in favor of all defendants, terminate the pending 24 25 26 motions, and close the file. Plaintiff shall take nothing by way of his complaint. IT IS SO ORDERED. DATED: August 23, 2010 RICHARD SEEBORG United States District Judge 27 28 6 No. C 09-0947 RS (PR) ORDER GRANTING MOT. FOR SUMM. J.

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