Hartmann v. Hanson et al, No. 3:2009cv03227 - Document 34 (N.D. Cal. 2010)
Court Description: ORDER GRANTING DEFENDANT HANSON'S MOTION FOR SUMMARY JUDGMENT AND SCHEDULING CASE MANAGEMENT CONFERENCE by Judge Alsup granting 20 Motion to Dismiss (whalc1, COURT STAFF) (Filed on 1/22/2010)
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Hartmann v. Hanson et al Doc. 34 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 DAN HARTMANN, 11 For the Northern District of California United States District Court 10 12 No. C 09-03227 WHA Plaintiff, 16 CHRISTIAN HANSON, ELEVEN UNKNOWN DEPUTY UNITED STATES MARSHALS, RIVERSIDE COUNTY, ROD PACHECO, DAVID BRIAN GREENBERG, HAWLEE KANE LARSON, ARMANDO MUNOZ, CARREN ROBINSON, and DOES 1 through 10, inclusive, 17 Defendants. 13 14 15 ORDER GRANTING DEFENDANT HANSON’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT, AND SCHEDULING CASE MANAGEMENT CONFERENCE v. / 18 19 20 INTRODUCTION This case involves the alleged mistreatment of a registered sex offender’s roommate who 21 was at his residence during the execution of an arrest warrant for his co-habitant. Defendant 22 Christian Hanson, one of twelve deputy United States marshals who executed the arrest warrant, 23 moves to dismiss (or, alternatively, for summary judgment on) all claims alleged against him in 24 the complaint. For the reasons set forth below, defendant Hanson’s motion is GRANTED. Further 25 instructions are provided herein with respect to remaining defendants in this action. 26 STATEMENT 27 Since the claims asserted against defendant Hanson comprise only half of the claims 28 alleged in the complaint, only those facts relevant to their adjudication will be set forth. Dockets.Justia.com 1 1. 2 In 1998, plaintiff’s roommate was convicted of engaging in unlawful sexual activity with 3 a minor (Hanson Decl. Exh. A). As a result of this conviction, the roommate was required, under 4 various sections of the California Penal Code, to register with local police whenever he moved to 5 a new residence. On April 30, 2009, the Superior Court in the County of Riverside, California, 6 issued an arrest warrant for the roommate, based upon his alleged failure to properly register his 7 new residence with state authorities (ibid.). 8 For the Northern District of California United States District Court 9 ISSUANCE OF THE ARREST WARRANT Defendant Hanson, a deputy United States marshal and member of the Northern California Fugitive Task Force, received a request on May 19, 2009, from the Pacific Southwest Regional 10 Fugitive Task Force for assistance in executing the Riverside County warrant (id. ¶¶ 1, 3). Based 11 upon investigative searches of various databases, defendant Hanson ascertained that the target of 12 the arrest warrant was likely living at a particular residence in Guerneville, California (id. at ¶¶ 13 3–5). Communications with the Sonoma County Sheriff in Santa Rosa, California — located a 14 mile and a half from the identified residence — revealed that plaintiff’s roommate had actually 15 registered that particular address on April 29, 2009 (id. ¶ 5; Compl. ¶ 22). The street number on 16 the registration form, however, had been crossed out by hand and changed from “14256,” the 17 correct address where plaintiff and his roommate resided, to “12456” (Hanson Decl. ¶ 5). 18 2. 19 Unless otherwise noted, both plaintiff’s complaint and defendant’s motion and supporting 20 declarations agree on the following facts.1 At or around noon on May 20, 2009, numerous deputy 21 U.S. marshals — including defendant Hanson — attempted service of the arrest warrant at the 22 home of plaintiff and his roommate (id. ¶ 7; Compl. ¶ 23). After the marshals knocked on the 23 door of the residence, plaintiff answered the door (Hanson Decl. ¶ 7; Compl. ¶ 24). According to 24 defendant Hanson, just prior to plaintiff answering the door, an interior light was extinguished 25 (Hanson Decl. ¶ 7). Based upon descriptions of the residence provided by both parties, the door SERVICE OF THE WARRANT 26 27 28 1 As will be explained shortly, plaintiff failed to file an opposition to the instant motion, and therefore this motion is being treated as unopposed. Plaintiff’s complaint is merely being cited to show that the unsworn facts therein do not differ greatly from the sworn facts set forth in defendant’s declaration. 2 1 on which the marshals knocked was located on the second floor of the structure, accessible by 2 stairs, and situated approximately 35 feet above the ground (Hanson Decl. ¶¶ 7, 8; Compl. ¶ 25). 3 Defendant Hanson concedes in his motion that the marshals had their weapons drawn at the time 4 plaintiff opened the door (Compl. ¶ 25; Br. 12). After plaintiff identified himself as not the target 5 of the arrest warrant, he was detained by the marshals and led down the front steps of his 6 residence away from the door (Hanson Decl. ¶ 7; Compl. ¶ 25). Thereafter, without any use of 7 force by the marshals or resistence by plaintiff, plaintiff was placed in handcuffs (Hanson Decl. 8 ¶ 7; see Compl. ¶ 25). Once plaintiff was detained, his roommate — the target of the arrest warrant — emerged For the Northern District of California United States District Court 9 10 onto the entry area of the residence and was taken, also without incident, into custody (Hanson 11 Decl. ¶ 7; Compl. ¶ 27). Officers then performed a search of the residence (Hanson Decl. ¶ 8; 12 Compl. ¶ 29). According to defendant Hanson, the search was a standard “security sweep” of the 13 “room which [task force] officers encountered” plaintiff and his roommate (Hanson Decl. ¶ 8).2 14 While inside the residence, the marshals noticed an itinerary, wallet, and luggage that 15 allegedly indicated the roommate’s travel plans to New York (id. ¶ 8). Although not mentioned 16 in the complaint, plaintiff allegedly informed the marshals that the luggage and wallet belonged to 17 his roommate, and that the roommate was planning to leave for New York that afternoon (ibid.). 18 Based upon his “training and experience,” defendant Hanson concluded that the items indicated 19 that the roommate was planning to leave the area in violation of his registration requirements, and 20 after consulting with Riverside County investigators and the U.S. Attorney’s Office, seized those 21 items incident to the roommate’s arrest (id. ¶ 10). Additionally, defendant Hanson — allegedly 22 based upon a specific request from the Riverside District Attorney’s Office to seize any cellular 23 phone “on or about [the roommate’s] person” — seized the roommate’s cellular phone (id. ¶ 9). According to defendant Hanson, plaintiff was only handcuffed for fifteen to twenty 24 25 minutes while his identity was verified and an outstanding warrant check was performed (id. ¶ 26 11). Plaintiff, however, alleged in the complaint that he was in handcuffs closer to forty-five 27 28 Defendant Hanson’s declaration and motion did not mention the existence of any search warrant or parole search condition that would have otherwise authorized this search. 2 3 1 minutes (Compl. ¶ 33). Thereafter, plaintiff was told by the marshals that “he was free to leave,” 2 but that he was not permitted to reenter the residence until after the search was concluded 3 (Hanson Decl. ¶ 11). By both parties’ estimates, the officers were at the residence for around 4 ninety minutes total (id. ¶ 12; Compl. ¶¶ 33, 40). For the Northern District of California United States District Court 5 With respect to scope of the search and seizure, plaintiff alleged that the marshals entered 6 and searched his private quarters, which was not the room that was adjacent to the door of the 7 residence (Compl. ¶ 36). This search allegedly occurred after plaintiff informed the officers that 8 his roommate occupied only the front room, and the rooms behind the front room belonged to 9 plaintiff (id. ¶ 29). Plaintiff also alleged in his complaint that the officers seized a computer that 10 belonged to his attorney, David Wright, for whom his roommate apparently worked as a civil 11 rights consultant and legal assistant (id. ¶ 38). Again, all these allegations are unsworn. 12 Defendant Hanson’s motion and supporting declaration, however, do not dispute or contradict 13 these allegations, at least with respect to the search of plaintiff’s private quarters. 14 Finally, plaintiff’s complaint alleged that some of these items were, and continue to be, 15 improperly held by defendants following their seizure (Compl. ¶¶ 41–45). According to 16 defendant Hanson, all property other than the phone, itinerary, and computer — which were 17 provided to Riverside County authorities pursuant to a search warrant obtained after their initial 18 seizure occurred — were returned on May 21, 2009 (Hanson Decl. ¶ 13). 19 * * * 20 While the facts in this litigation are intriguing, the procedural history is even more so. To 21 put it briefly, plaintiff and his counsel disappeared completely and without explanation from this 22 litigation for the entire month of December 2009, failing to appear at a duty noticed case 23 management conference on December 10, 2009, and ignoring the briefing schedule of the instant 24 motion (Dkt. Nos. 14, 15, 17, 19, 23, 27). 25 Evidence of this disappearance arrived early in December 2009. A week before the 26 December 10 case management conference, plaintiff’s counsel — Attorney David Wright — 27 failed to meet and confer with defense counsel to draft and file their joint case management 28 statement (Dkt. No. 22). Indeed, at the case management conference, defense counsel indicated 4 1 that they were unable to obtain any response whatsoever from plaintiff’s counsel leading up to the 2 hearing. For the Northern District of California United States District Court 3 An order was filed after the unattended case management conference, ordering plaintiff to 4 show cause why his case should not be dismissed for lack of prosecution, and why he or his 5 attorney should not be required to pay fees and sanctions due to their failure to appear (Dkt. No. 6 23). A hearing on that order was scheduled for January 7, 2010, with a written response from 7 plaintiff (or plaintiff’s counsel) due by January 4, 2010. Adding to the defaults, on December 17, 8 2009, the deadline for plaintiff to file a timely opposition to the instant motion passed without any 9 submission by plaintiff. In response to this missed deadline, the hearing on the motion was 10 vacated, and a second order to show cause was issued on December 18, 2009 (Dkt. No. 26). In 11 the December 18 order, plaintiff was warned that failure to show cause and explain by December 12 24 why his opposition brief was not filed would result in defendant’s motion being treated as 13 unopposed. Neither plaintiff nor his counsel filed a response by December 24. 14 Soon into the new year, Attorney Wright filed a declaration on January 4, 2010. It was 15 purportedly in response to both of the orders to show cause (Dkt. Nos. 28, 29). In these 16 declarations, Attorney Wright admitted that it was his “mistake, inadvertence and negligence” 17 that caused his non-appearance at the December 10 case management conference and his failure 18 to file an opposition brief to the instant motion, and that he was willing to reimburse opposing 19 counsel for their expenses related to the December 10 conference (Dkt. No. 29 ¶¶ 6, 10). Further 20 into the submission, Attorney Wright then attempted to present and argue on the merits an 21 opposition to defendant Hanson’s opening brief (Dkt. No. 28). Additionally, Attorney Wright 22 indicated his intention to file an amended complaint to add additional parties to the action (Dkt. 23 No. 29 ¶¶ 8–9). In response, the undersigned ordered Attorney Wright not to file an amended 24 complaint until the pending set of snafus were sorted out and express approval from the Court 25 was given (Dkt. No. 30). Moreover, Attorney Wright was further instructed that he would be 26 allowed to address both orders to show cause at the upcoming January 7 hearing, but that he 27 would not be allowed to argue the merits of defendant Hanson’s motion at that time (ibid.). 28 5 1 2 would not be in attendance due to a claimed medical emergency (Dkt. No. 32). Defense counsel 3 was notified of this absence, and did not appear. The undersigned accepted this medical excuse 4 and rescheduled the hearing for 8:00 A.M. on January 21, 2010 (Dkt. No. 31). For the Northern District of California 5 United States District Court On the morning of the January 7 hearing, Attorney Wright notified the Court that he On January 21, 2010, neither plaintiff nor his attorney appeared for the rescheduled 8 6 A.M. hearing. The undersigned waited until 10:00 A.M. to allow Attorney Wright to arrive at the 7 courthouse. Defense counsel also waited patiently for two hours. Attorney Wright did not 8 appear. Nor did he phone or file any excuse. Indeed, no communications whatsoever were 9 received by the Court or the parties from plaintiff or his counsel prior to the hearing on January 10 21, 2010. As of the date of this order, plaintiff has still not appeared before the undersigned to 11 show cause why this case should not be dismissed for failure to prosecute, or why this motion 12 should not be treated as unopposed. 13 14 15 16 With this bizarre procedural backdrop in place, the merits of defendant Hanson’s motion will now be addressed. ANALYSIS As a preliminary matter, the undersigned must consider four factors to determine whether 17 the instant motion should be treated as unopposed, or whether plaintiff has shown “excusable 18 neglect” warranting additional time for plaintiff to explain himself. Briones v. Riviera Hotel & 19 Casino, 116 F.3d 379 (9th Cir. 1997) (adopting the four-factor test set forth by the Supreme Court 20 in Pioneer Investment Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380 (1993)). 21 These four factors are: (1) the danger of prejudice to the opposing party; (2) the length of the 22 delay and its potential impact on judicial proceedings; (3) the reason for the delay, including 23 whether it was within the reasonable control of the person; and (4) whether the person whose 24 “neglect” is under scrutiny acted in good faith. Pioneer, 507 U.S. at 395. 25 Here, Attorney Wright’s declaration speaks for itself. In his own words, his failure to file 26 an opposition to the instant motion was due solely to his “mistake, inadvertence and negligence” 27 (Dkt. No. 29 ¶ 10). Thus, a timely filing was certainly within his control. Even given this failure, 28 the undersigned was willing to allow Attorney Wright an opportunity to make his best case as to 6 1 why he should be allowed to file a late opposition, and why this case should not be dismissed. 2 While the undersigned excused Attorney Wright for his absence at the January 7 hearing due to a 3 medical emergency, he at least provided notice to the Court and opposing counsel of his absence 4 that morning. The same cannot be said for the January 21 hearing. Attorney Wright — echoing 5 his unexplained absence at the December 10 case management conference — failed to let anyone 6 know that he would not be present. Given this history, it is unclear when, if ever, the instant 7 motion could be ruled on without treating it as unopposed. For the Northern District of California United States District Court 8 As such, the four Pioneer factors do not support a finding of excusable neglect, which 9 would allow the Court to extend time to Attorney Wright to file his opposition. FRCP 6(b)(1)(B) 10 (“[T]he court may, for good cause, extend the time” if a “party failed to act because of excusable 11 neglect.”). Attorney Wright’s behavior has denied defendant Hanson a prompt resolution of his 12 motion, which is clearly prejudicial. Moreover, his second unexplained absence at a duly noticed 13 hearing cannot be seen as an act of good faith. Finally, Attorney Wright’s absences have 14 prevented the undersigned from setting a case management schedule and moving this action 15 forward. As such, defendant Hanson’s motion will be treated as unopposed, and ruled on 16 accordingly. 17 Turning to the motion at hand, defendant Hanson presents a multi-faceted attack on 18 plaintiffs claims. First, defendant asks that plaintiff’s claims against defendant to be construed as 19 claims made against the United States, which would be barred under the doctrine of sovereign 20 immunity. Second, defendant asserts that plaintiff has not exhausted all administrative remedies 21 for a tort claim against the United States under the Federal Tort Claims Act (FTCA), and 22 therefore plaintiff’s tort claims must be dismissed for lack of subject matter jurisdiction. Third, 23 defendant moves for summary judgment that plaintiff’s claims are otherwise barred by the 24 doctrine of qualified immunity. 25 Each argument is addressed in turn. 26 1. INTERPRETATION OF CLAIMS AGAINST DEFENDANT HANSON AS SOLELY IN THEIR OFFICIAL CAPACITY 27 It is well established that Bivens created a remedy for violations of constitutional rights 28 committed by federal officials acting in their individual capacities. In a paradigmatic Bivens 7 1 action, a plaintiff seeks to impose personal liability upon a federal official based on alleged 2 constitutional infringements he or she committed against the plaintiff. Consejo de Desarrollo 3 Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (citing Bivens 4 v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)). However, 5 “a Bivens action can be maintained against a defendant in his or her individual capacity only, and 6 not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). 7 This is because a Bivens suit against a defendant in his or her official capacity would merely be 8 another way of pleading an action against the United States, which is ordinarily barred by 9 sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 (9th Cir.2000). For the Northern District of California United States District Court 10 Here, defendant asks the Court to construe plaintiff’s claims against Christian Hanson as 11 being made in their official capacity (Br. 22). To justify this request, plaintiff argues that it 12 “appears [defendant] was acting within the scope of his federal employment” based upon the 13 allegations of the complaint (ibid.). Thus, “[s]ince the detention, search[,] and other actions were 14 taken during the performance of [defendant’s] official duties,” the claims can be construed as 15 being in their official capacity (ibid.). 16 This argument is unpersuasive. As defendant admits in its motion, plaintiff has expressly 17 alleged that defendant Hanson “acted in his official and individual capacity to deprive [plaintiff of 18 his constitutionally protected rights” and “he is being sued in his official and individual capacity” 19 (Compl. ¶ 18) (emphasis added). This is sufficient to state a claim against a federal officer in his 20 individual capacity. See Nurse, 226 F.3d at 1004 (reversing a district court’s dismissal of Bivens 21 claims because the complaint purported to sue the individual defendants in both their individual 22 and official capacities). Plaintiff’s motion with respect to this argument is denied. 23 2. EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER THE FEDERAL TORT CLAIMS ACT 24 The Federal Tort Claims Act, or FTCA, constitutes a limited waiver of sovereign 25 immunity for claims that are based on the negligent or wrongful acts of the United States. See 28 26 U.S.C. 1346(b); 28 U.S.C. 2671 et seq. This includes liability for intentional torts such as assault, 27 battery, and false imprisonment, if committed by federal law enforcement officers. See 28 U.S.C. 28 2680(h). Defendant argues that, to the extent plaintiff is suing to recover tort damages resulting 8 1 from defendant’s decisions in this case, plaintiff has failed to exhaust his administrative remedies 2 as required under the FTCA (Br. 23). 28 U.S.C. 2675(a). 3 This order agrees with defendant that plaintiff has not alleged that he properly “presented 4 [his] claim to the appropriate Federal agency” and either waited for a written denial of his claim, 5 or for a six-month non-response period as required under the FTCA. Ibid. Because there are no 6 exceptions to this requirement, plaintiff’s tort-related claims — to the extent that they are claims 7 brought under the FTCA — must be dismissed for lack of subject-matter jurisdiction. See 8 McNeill v. United States, 508 U.S. 106, 111–112 (1993). For the Northern District of California United States District Court 9 This, however, does not end the analysis. Because the FTCA constitutes a limited waiver 10 of the United States’ sovereign immunity, it logically applies only to claims brought against 11 defendant Hartman in his official capacity. See Nurse, 226 F.3d at 1004. Thus, plaintiff’s failure 12 to exhaust his administrative remedies under the FTCA (or, alternatively, his failure to plead that 13 he did so), does not bar a Bivens constitutional claim involving the same allegedly tortious 14 conduct. Indeed, the Supreme Court explicitly held that claims allowed against the United States 15 under the FTCA were meant to complement claims brought against the individual officials alleged 16 to have infringed the plaintiff’s constitutional rights. Carlson v. Green, 446 U.S. 14, 20 (1980). 17 Plaintiff’s claims, therefore, to the extent that they allege constitutional violations under Bivens 18 by defendant Hartman in his individual capacity, cannot be dismissed under this theory. 19 Finally, it should be noted that plaintiff alleged violations of both the federal and state 20 constitutions (Compl. ¶¶ 94, 99). Where such constitutional tort claims are made against federal 21 officers, alleged violations of the federal constitution are treated as Bivens claims, while alleged 22 violations of the state constitution are treated as FTCA claims. Papa v. United States, 281 F.3d 23 1004, 1010 n.20 (9th Cir. 2002). Thus, like plaintiff’s FTCA claims discussed above, the claims 24 made against defendant Hanson under the California Constitution must also be dismissed. QUALIFIED IMMUNITY 25 3. 26 Since plaintiff’s Bivens claims against defendant Hanson cannot be dismissed under the 27 theories just discussed, defendant moves in the alternative for summary judgment that plaintiff’s 28 Bivens claims are barred by the doctrine of qualified immunity. 9 For the Northern District of California United States District Court 1 Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, 2 and admissions on file, together with the affidavits, show that there is no genuine issue as to any 3 material fact and that the moving party is entitled to judgment as a matter of law.” FRCP 56(c). 4 An issue is “genuine” only if there is sufficient evidence for a reasonable fact-finder to find for 5 the non-moving party, and “material” only if the fact may affect the outcome of the case. 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986). All reasonable inferences must 7 be drawn in a light most favorable to the non-moving party. Olsen v. Idaho State Bd. of Med., 8 363 F.3d 916, 922 (9th Cir. 2004). Because plaintiff — the non-moving party — has failed to file 9 an opposition, so long as defendant can meet its burden producing evidence negating an essential 10 element of plaintiff’s claims or can show that plaintiff lacks sufficient evidence of an essential 11 element to carry its ultimate burden of persuasion at trial, the moving party is entitled to judgment 12 as a matter of law. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 13 2000). 14 In determining at summary judgment whether claims against a federal officer are barred 15 by qualified immunity, the district court — viewing the sworn facts in a light most favorable to 16 the non-moving party — must ask: (1) did the officer’s conduct violate a constitutional right; and 17 (2) if a violation occurred, whether the right was “clearly established in light of the specific 18 context of the case.” al-Kidd v. Ashcroft, 580 F.3d 949, 964 (9th Cir. 2009) (citing Saucier v. 19 Katz, 533 U.S. 194, 201 (2001)). While these questions are traditionally addressed in that order, 20 the district court may “exercise [its] sound discretion in deciding which of the two prongs of the 21 qualified immunity analysis should be addressed first.” Pearson v. Callahan, 129 S.Ct. 808, 818 22 (2009). Each Bivens claim against defendant Hanson will now be discussed. UNCONSTITUTIONAL DETENTION OF PLAINTIFF 23 A. 24 Plaintiff alleges in his complaint that defendant Hanson arrested, handcuffed, and refused 25 to allow plaintiff to enter his own residence without either an arrest warrant or search warrant for 26 plaintiff, and that these actions were in violation of the Fourth Amendment (Compl. ¶ 86). The 27 complaint also alleges, and defendant concedes, that defendant knew that plaintiff was not the 28 target of the arrest warrant, because plaintiff identified himself at the door of his residence and 10 For the Northern District of California United States District Court 1 defendant had seen photographs of plaintiff’s roommate prior to executing the arrest warrant 2 (ibid.; Br. 9). Regardless, according to defendant Hanson, plaintiff was detained in order to 3 ascertain his identity and preserve officer safety while executing the arrest warrant (Br. 9). 4 Plaintiff does not proffer any reasons why he was handcuffed, but merely alleges that he was 5 handcuffed for forty-five minutes rather than fifteen to twenty minutes as stated by defendant 6 Hanson in his declaration (Compl. ¶ 33; Hanson Decl. ¶ 11). 7 As a preliminary matter, defendant concedes that “it is undisputed that the [m]arshals’ 8 detention of [p]laintiff was a seizure” under the Fourth Amendment (Br. 9). Once a seizure is 9 found, the court must “evaluate the detention’s constitutionality by considering the totality of the 10 circumstances at that point.” See Ramirez v. City of Buena Park, 560 F.3d 1012, 1020-21 (9th 11 Cir. 2009). The factors considered typically include weighing individual privacy rights with 12 “substantial law enforcement interests,” including the “law enforcement interest in exercising 13 unquestioned command of the situation” to protect themselves and others present. Michigan v. 14 Summers, 452 U.S. 692, 699, 703 (1981). 15 As a general and well-established proposition, officers may detain a building’s occupants 16 during the execution of a search or arrest warrant so long as “the officer conducts the detention in 17 a reasonable manner.” Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir.2006) (citing 18 Muehler v. Mena, 544 U.S. 93 (2005)); Tekle v. United States, 511 F.3d 839, 848 (9th Cir. 2007) 19 (extending Muehler, which involved a search warrant, to the execution of arrest warrants). In 20 Muehler, the Supreme Court held that the handcuffing of a small, barefoot woman for two to 21 three hours was reasonable, given that the search warrant for her home sought dangerous weapons 22 used in gang activity, and only two officers were present to oversee four detainees. “[Law 23 enforcement officials] do not, however, have unfettered authority to detain a building’s occupants 24 in any way they see fit.” Dawson, 435 F.3d at 1066. Indeed, the Ninth Circuit recently held that 25 it was unreasonable to handcuff a barefoot 11-year-old boy (who was neither resisting arrest or 26 attempting to flee) for ten to fifteen minutes outside his residence while effectuating his father’s 27 arrest warrant, while a force of approximately twenty-three officers managed the scene. Tekle, 28 511 F.3d at 848. The Tekle decision expressly distinguished Muehler by noting that while both 11 For the Northern District of California United States District Court 1 seizures involved the use of handcuffs, in Muehler “they were used on adults in a situation where 2 the officers were outnumbered by the detainees.” Id. at 849. Moreover, it was apparent at the 3 time of the seizure that the child in Tekle was not the subject of the arrest warrant, and there was 4 no suspicion that there were deadly weapons or “armed and dangerous” individuals on the 5 premises. Id. at 849–50. 6 Here, plaintiff, an adult male, was handcuffed for only fifteen to twenty minutes.3 Once 7 plaintiff’s handcuffs were removed, however, plaintiff was told by officers that he was “free to 8 leave.” (Hanson Decl. ¶ 11). This effectively ended the seizure, despite the fact that plaintiff 9 voluntarily choose to remain in the area. See Fisher v. City of San Jose, 558 F.3d 1069, 1077 (9th 10 Cir. 2009) (holding that a Fourth Amendment seizure ends when a reasonable person, based on 11 the totality of the circumstances, would feel at liberty to leave). Additionally, it is undisputed that 12 there were twelve marshals present at the scene, and the marshals knew at the time they 13 handcuffed plaintiff that he was not the target of the arrest warrant. 14 As such, the factual situation presented by this case falls squarely between the guideposts 15 of Muehler and Tekle. On one hand, the arrest warrant was targeting a seemingly non-violent sex 16 offender who did not present to officers the same “armed and dangerous” gang-related situation in 17 Muehler. Additionally, unlike the situation in Muehler, the twelve armed federal marshals vastly 18 outnumbered plaintiff and his roommate. On the other hand, while the marshals knew plaintiff 19 was not the suspect, they did not immediately know his identity, and it was apparent he was not a 20 child as in Tekle. Furthermore, plaintiff was only handcuffed for fifteen to twenty minutes, far 21 less than the two or three hours found to be reasonable in Mueller.4 Finally, because plaintiff 22 emerged from the residence first, at least some of the time that plaintiff was handcuffed was spent 23 by officers (1) ascertaining the whereabouts of plaintiff’s roommate, (2) arresting plaintiff’s 24 roommate, (3) performing a security sweep of the residence, and (4) confirming plaintiff’s 25 identity and running a background check for outstanding warrants. Under the general principle 26 27 28 3 Defendant Hanson’s version of the facts must be accepted as true for the purposes of this order, since they are the only facts supported by a sworn declaration. Even if plaintiff was handcuffed for forty-five minutes, as alleged in the complaint, this is far shorter than the time period found reasonable in Mueller. 4 12 For the Northern District of California United States District Court 1 set forth in Michigan v. Summers that officers should exercise “unquestioned command” of the 2 situation to maintain the safety of all who are present, it seems plainly reasonable for an 3 unidentified adult male to be detained for fifteen minutes, or even forty-five minutes, while these 4 activities are bring performed by law enforcement. 452 U.S. at 703. 5 While the undersigned could reach the merits of whether plaintiff’s claim alleges a 6 violation of his Fourth Amendment rights, this unnecessary under Pearson v. Callahan. The very 7 fact that the circumstances of this case fall squarely within the gray area between Muehler and 8 Tekle indicates that the right asserted by plaintiff was not “clearly established in light of the 9 specific context of the case.” Pearson, 129 S.Ct. at 818. Under Pearson, qualified immunity may 10 be granted without an express finding that a constitutional violation has been alleged, so long as 11 the court finds that the right was not clearly established. Ibid. As such, defendant’s motion to bar 12 plaintiff’s constitutional claim for unlawful seizure and detention under the doctrine of qualified 13 immunity is granted. 14 B. 15 Although listed in his complaint as a claim for “assault and battery,” plaintiff alleges that USE OF EXCESSIVE FORCE BY DEFENDANT 16 the handcuffs used by defendant Hanson caused bilateral bruising to his wrists, and pain to his 17 neck, shoulder, and back (Compl. ¶ 23). Plaintiff also alleges that, in the process of being 18 detained, he faced “several handguns and an automatic rifle pointing to his head and chest” (Id. ¶ 19 25). These factual allegations are sufficient to allege a Bivens claim for excessive force under the 20 Fourth Amendment. Carlson, 446 U.S. at 20. 21 Allegations of excessive force are examined under the Fourth Amendment’s prohibition 22 on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989). As in the prior section, 23 the court must ask “whether the officers’ actions were ‘objectively reasonable’ in light of the facts 24 and circumstances confronting them,” and balance “‘the nature and quality of the intrusion on the 25 individual’s Fourth Amendment interests’ against the countervailing governmental interests at 26 stake.” Id. at 396. Stated another way, the court should “balance the amount of force applied 27 against the need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.2003). The first 28 factor in determining whether the force used was excessive is the severity of the force applied. 13 1 Tekle, 511 F.3d at 844 (citation omitted). The second factor is the need for the force. 2 Considerations in determining the need for the force include (1) the severity of the crime at issue, 3 (2) whether the individual poses an immediate threat to the safety of the officers or others, and (3) 4 whether he is actively resisting arrest or attempting to evade arrest by flight. For the Northern District of California United States District Court 5 Starting with the need for the force first, it is undisputed that plaintiff did not actively 6 resist arrest or attempt to evade arrest when detained by the U.S. marshals (Hanson Decl. ¶ 7). 7 Additionally, the severity of the crime at issue — failure to register as a sex offender — does not 8 appear to be a crime that would traditionally justify a heightened need for force when executing 9 an arrest warrant, especially since defendant Hanson was aware that plaintiff’s roommate had 10 actually registered with the local authorities.5 The only reasons cited by defendant to justify the 11 need for the twelve officers to have their guns drawn and pointed at plaintiff when he answered 12 the door were (Br. 12–13): 13 16 The Marshals were uncertain about whom, or how many individuals, they would encounter at the residence and whether or not the occupants would cooperate. Given the level of heightened suspicion, officers acted reasonably in having their guns drawn when an unknown individual answered the door to the residence. Officers did not know if Plaintiff was armed, nor whether Plaintiff may pose a threat to officer safety. 17 ... 18 19 [A]lthough Plaintiff came to the door alone, Plaintiff could have been armed and a large number of individuals may have been awaiting inside the residence. 20 With respect to the severity of force, it is well established that pointing of a gun at 21 someone may constitute excessive force, even if it does not cause physical injury. See Robinson 22 v. Solano County, 278 F.3d 1007, 1014-15 (9th Cir. 2002) (en banc); Tekle, 511 F.3d at 847 (“We 23 have held since 1984 that pointing a gun at a suspect’s head can constitute excessive force in this 24 circuit.”). In Robinson, the Ninth Circuit noted that “point[ing] guns at people not under 25 suspicion, handcuff[ing] them and detain[ing] them for 25 minutes” could amount to a Fourth 26 Amendment violation because “the use of guns and handcuffs must be justified by the 14 15 27 While the registration form contained what appeared to be a purposefully doctored street address, the level of suspicion created by this anomaly does not, without more, justify a heightened need for force. 5 28 14 1 circumstances.” Id. at 1014 (citations omitted). In Robinson, the Ninth Circuit eventually held 2 that a constitutional violation was alleged by plaintiff, because “[t]he crime under investigation 3 was at most a misdemeanor, the suspect was apparently unarmed and approaching the officers in 4 a peaceful way, there were no dangerous or exigent circumstances apparent at the time of the 5 detention, and the officers outnumbered the plaintiff.” Ibid. Thus, the court held that the officers 6 were not justified in drawing their guns and pointing them at the suspect’s head from close range. For the Northern District of California United States District Court 7 Here, defendant Hanson admits that the marshals had their guns drawn when plaintiff 8 answered the door of his residence, and does not dispute plaintiff’s allegation that he was 9 “suddenly facing several handguns and an automatic rifle pointing to his head and chest” (Br. 12). 10 What is unclear, however, is how long officers kept their weapons drawn and pointed at plaintiff 11 after it became apparent that he was unarmed and cooperative. No sworn facts in the record 12 speak to these questions. 13 Considering the sworn facts provided by defendant and the circumstances at the time of 14 plaintiff’s detention, this order holds that plaintiff has not alleged a constitutional violation of the 15 Fourth Amendment due to “excessive force” by federal officers. At the time plaintiff answered 16 the door, officers had what they believed to be a valid arrest warrant for the residence, and were 17 unaware of how many individuals were inside the residence, who would answer the door, and 18 whether that person might be armed. Moreover, the fact that the lights within the residence were 19 turned off shortly after officers knocked and announced their presence provides an additional 20 justification for their suspicion and caution (Hanson Decl. ¶ 7). Because of the unknown danger 21 faced by law enforcement when executing an arrest warrant at a residence, this order finds the 22 defendant’s conduct with respect to his firearm was objectively reasonable.6 As such, qualified 23 immunity will bar this claim. 24 25 With respect to injuries allegedly suffered by plaintiff due to being “handcuffed for a long period of time,” plaintiff did not complain that the handcuffs were too tight, or request that 26 27 28 6 It should be noted, however, that if sworn facts had demonstrated that defendant Hanson had kept his weapon drawn and pointed at plaintiff after it was determined that plaintiff was unarmed, cooperative, and not a serious threat to officer safety, this holding would likely be different under Robinson. 15 For the Northern District of California United States District Court 1 defendant loosen or readjust them (Br. 12). Since it has already been determined that plaintiff’s 2 detention — which includes being handcuffed for fifteen minutes — does not violate any clearly 3 established constitutional right, this claim must similarly yield to defendant’s qualified immunity. 4 In sum, plaintiff’s claim of excessive force is barred by the doctrine of qualified immunity. 5 C. UNCONSTITUTIONAL SEARCH & SEIZURE OF PLAINTIFF’S RESIDENCE 6 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, 7 houses, papers, and effects, against unreasonable searches and seizures....” U.S. CONST. AMEND. 8 IV. One of the basic principles of Fourth Amendment law is that searches and seizures inside a 9 home without a warrant are presumptively unreasonable. Welsh v. Wisconsin, 466 U.S. 740, 749 10 (1984) (citation omitted). However, because the touchstone of the Fourth Amendment is 11 “reasonableness,” the court must nevertheless weigh the degree to which a search intrudes upon 12 an individual’s privacy with the degree to which it is needed for the promotion of legitimate 13 governmental interests, such as officer safety. United States v. Knights, 534 U.S. 112, 118-19 14 (2001). 15 A creature of this balancing test is the “protective sweep” rule. Maryland v. Buie, 494 16 U.S. 325, 334 (1990). In Buie, the Supreme Court gave great weight to the “interest of the 17 [arresting] officers in taking steps to assure themselves that the house in which a suspect is being, 18 or has just been, arrested is not harboring other persons who are dangerous and who could 19 unexpectedly launch an attack,” and described two types of searches that might immediately 20 follow an arrest and for which a warrant was not required. Id. at 333-34. First, the officers’ 21 interest in their own safety justifies a search “incident to the arrest ... as a precautionary matter 22 and without probable cause or reasonable suspicion, ... [of] closets and other spaces immediately 23 adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334. 24 Second, the officers can perform a further protective sweep beyond immediately adjoining areas 25 when there are “articulable facts which, taken together with the rational inferences from those 26 facts, would warrant a reasonably prudent officer in believing that the area to be swept harbor[ed] 27 an individual posing a danger to those on the arrest scene.” Ibid. This “protective sweep,” 28 however, is not a license to search every nook and cranny of a house. Rather, it is subject to two 16 1 significant limitations: it “extend[s] only to a cursory inspection of those spaces where a person 2 may be found” and lasts “no longer than it takes to complete the arrest and depart the premises.” 3 Id. at 335-36. For the Northern District of California United States District Court 4 Here, both plaintiff’s complaint and defendant’s sworn declaration indicate that the target 5 of the arrest warrant — plaintiff’s roommate — was arrested immediately after he came to the 6 entry area of his residence (Compl. ¶ 27; Hanson Decl. ¶ 7). Because the lights were turned off in 7 the residence shortly before plaintiff opened the door, however, it was reasonable for the marshals 8 to conclude that the front room of the residence (adjacent to the door) was an area “from which an 9 attack could be immediately launched,” and where at least one person could have been concealed. 10 Buie, 494 U.S. at 334. Therefore, defendant Hanson and other deputy U.S. marshals were 11 authorized to enter and perform a “protective sweep” of the adjoining room without any probable 12 cause or reasonable suspicion. See United States v. Lemus, 582 F.3d 958, 963 (9th Cir. 2009) 13 (citing Buie and holding that because the suspect in the case was arrested in an area “immediately 14 adjoining” the living room, a limited search of that room was proper without either reasonable 15 suspicion or probable cause). 16 With respect to the items seized from the residence, due to the lack of a proper search 17 warrant, seizure of items discovered during a protective sweep requires that the items fall within 18 the “plain view” exception. As stated in United States v. Stafford, “[t]o fall within the plain view 19 exception, two requirements must be met: the officers must be lawfully searching the area where 20 the evidence is found and the incriminatory nature of the evidence must be immediately 21 apparent.” 416 F.3d 1068, 1076 (9th Cir. 2005) (citations omitted). According to defendant 22 Hanson, all items seized from plaintiff’s residence were discovered in plain view within the front 23 room of the residence (Hanson Decl. ¶¶ 8–9). Taking defendant’s sworn facts as true, however, it 24 is doubtful whether the incriminatory nature of the evidence was “immediately apparent” as 25 required under Stafford. 26 In Arizona v. Hicks, the Supreme Court held invalid the seizure of stolen stereo equipment 27 found by police while executing a valid search for other evidence. 480 U.S. 321 (1987). 28 Although the police were lawfully on the premises, they obtained probable cause to believe that 17 For the Northern District of California United States District Court 1 the stereo equipment was contraband only after moving the equipment to permit officers to read 2 its serial numbers. Thus, it’s incriminating nature was not immediately apparent without further 3 searching — on its face, it was simply a stereo. In the Ninth Circuit, even a gun may not be 4 seized unless it has an “immediately apparent” incriminating nature. In United States v. Lemus, 5 seizure of a gun under the “plain view” doctrine was only permitted because the police officer 6 who seized the gun was present during the prior probationary search of the suspect’s apartment, 7 and knew that the suspect had been convicted of a felony. 582 F.3d 958. Because it is illegal for 8 a felon to possess a firearm, the incriminating nature of the pistol was immediately apparent. 9 With respect to incriminating documents, a number of courts of appeals have held that a plain- 10 view seizure of certain documents is permissible even though their incriminating nature is not 11 apparent absent some reading of their contents. See Crouch v. United States, 454 U.S. 952, 12 955-956 (1981) (dissenting from denial of certiorari) (listing cases). 13 Here, defendant Hanson seized a wallet, papers, luggage, and a cellular phone. The 14 luggage contained numerous items, including a laptop and clothing (Compl. ¶ 88; Hanson Decl. ¶ 15 13). Of these items, however, plaintiff only asserts a property interest in the cellular phone 16 (Compl. ¶¶ 38, 45). The laptop apparently belongs to Attorney David Wright, and the other items 17 belong to plaintiff’s roommate (Compl. ¶¶ 88, 89). Under these facts, plaintiff lacks standing to 18 challenge any of these seizures except for the cellular phone, since he admittedly does not own or 19 have a legitimate expectation of privacy in the other seized items. See United States v. Parks, 285 20 F.3d 1133 (9th Cir. 2002) (standing to challenge the legality of a search or seizure requires a 21 demonstration that the challenger demonstrate a legitimate expectation of privacy in the items 22 seized). Therefore, the circumstances surrounding the seizure of the wallet, itinerary, and luggage 23 need not be addressed. 24 With respect to the phone, however, since defendant Hanson did not seize this item 25 pursuant to a valid search warrant supported by probable cause, its seizure — unless the “plain 26 view” exception applies — was presumptively unreasonable. Welsh, 466 U.S. at 749. The facts 27 provided by defendant Hanson in his declaration do not support the conclusion that the cellular 28 phone was immediately incriminating on its face. First, unlike firearms and felons, it is certainly 18 For the Northern District of California United States District Court 1 not illegal for a registered sex offender to possess a cell phone. Second, despite defendant 2 Hanson’s claim that he was “previously informed by the Riverside SAFE Task Force, through a 3 collateral lead request, that a cellular phone has been used by [plaintiff’s roommate] in the 4 commission of his registration violations and was possible evidence of such violations,” this does 5 not vitiate the need for law enforcement to apply for and obtain a search warrant supported by 6 probable cause (Hanson Decl. ¶ 9). Third, just because the “lead investigator from the Riverside 7 District Attorney’s Office had requested that any cellular phone on or about [plaintiff’s 8 roommate] . . . be seized” does not authorize defendant Hartman to do without obtaining a search 9 warrant. Fourth, the after-the fact issuance of a search warrant for the cellular phone — nearly a 10 week after the phone had been seized — does not remedy the initial unauthorized seizure. As 11 such, plaintiff has alleged a constitutional violation with respect to the seizure of his cellular 12 phone. 13 Finally, defendant Hanson’s extension of the protective sweep from the front room to 14 plaintiff’s bedroom required “articulable facts which, taken together with the rational inferences 15 from those facts, would warrant a reasonably prudent officer in believing that the area to be swept 16 harbor[ed] an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334. 17 Here, besides the fact that the lights of the residence were turned off before plaintiff answered the 18 door, there were no articulable facts to support the extension of the protective sweep beyond the 19 room adjacent to the entryway of the residence. The reasons provided by defendant to search 20 plaintiff’s room were as follows (Br. 19): 21 22 23 24 25 In the present case, officers were executing the arrest warrant for a known sex offender in violation of the lifetime requirements connected to a 1998 conviction. Additionally, [plaintiff’s roommate] was known to be currently investigated for additional lewd and lascivious acts with minors in Riverside County. He was a convicted felon who, based on his violation of the registration requirements, was trying to avoid being located by the authorities. Upon arrival at the residence, officers were met with two individuals at the door and a [sic] unexplained outage of an interior light. 26 None of these reasons, especially in light of the admittedly cooperative nature of plaintiff and his 27 roommate, support the conclusion that a reasonably prudent officer would believe that the 28 plaintiff’s bedroom harbored an individual posing a danger to those on the arrest scene. 19 For the Northern District of California United States District Court 1 In light of the above analysis, plaintiff has alleged constitutional violations pertaining to 2 the search and seizure of items following the arrest of his roommate. Moreover, each of the rights 3 that were allegedly violated were “clearly established in light of the specific context of the case.” 4 Specifically, it is clearly established under Buie and Hicks that: (1) any seizure of items without a 5 search warrant is presumptively unreasonable, and the “plain view” exception only applies if an 6 item’s incriminating nature is immediately apparent, and (2) the extension of a protective sweep 7 beyond the room adjacent to the point of arrest requires “articulable facts” which, taken together 8 with the rational inferences from those facts, would warrant a reasonably prudent officer in 9 believing that the area to be swept harbored an individual posing a danger to those on the arrest 10 scene. As such, defendant cannot claim qualified immunity with respect to the seizure of the 11 cellular phone during the execution of the protective sweep, or the search of plaintiff’s bedroom. 12 Despite this finding, however, plaintiff’s last surviving claim against defendant Hanson 13 must nonetheless be dismissed. Defendant Hanson filed this motion on November 24, 2009, 14 seeking a prompt resolution of this matter. As the procedural history of this action amply 15 illustrates, plaintiff then completely neglected to prosecute this case. After failing to appear at a 16 duly noticed case management conference, plaintiff was then ordered on December 10, 2009, to 17 show cause why this case should not be dismissed under FRCP 41(a) for failure to prosecute. 18 Meanwhile, counsel failed to file any opposition to defendant Hanson’s motion. Despite being 19 given ample opportunities to explain this failure and seek leave to file a late opposition, plaintiff 20 failed to appear before the undersigned to make his case. As such, this last surviving Fourth 21 Amendment claim against defendant Hanson shall be dismissed with prejudice pursuant to FRCP 22 41(a). 23 24 CONCLUSION For the reasons discussed above, plaintiff’s Bivens claims against defendant Hanson for 25 unlawful detention and excessive force are barred under the doctrine of qualified immunity, and 26 therefore defendant’s motion for summary judgment on these claims must be GRANTED. 27 Additionally, because plaintiff failed to exhaust his administrative remedies under the FTCA, 28 defendant Hanson’s motion to dismiss plaintiff’s FTCA and California Constitution claims must 20 1 be GRANTED. Finally, while plaintiff has sufficiently alleged violations of clearly established 2 constitutional rights against defendant Hanson for the search of his residence and seizure of his 3 cellular phone, these claims must be DISMISSED WITH PREJUDICE under FRCP 41(a), since 4 plaintiff has failed repeatedly to prosecute these claims, despite given ample opportunity to do so. 5 As such, no claims against Defendant Hanson survive this order. 6 7 Plaintiff will be given one last opportunity to file a declaration by NOON ON WEDNESDAY, 8 FEBRUARY 3, 2010, explaining why this order should not become effective on February 4, and 9 why he did not appear again at a duly noticed, court-ordered hearing. For the Northern District of California 10 United States District Court This ruling, however, will remain provisional until THURSDAY, FEBRUARY 4, 2010. As to the remaining defendants in this action, a case management conference is hereby 11 scheduled for 11 A.M. ON FEBRUARY 4, 2010, and Attorney Wright is ordered to attend. As 12 agreed (and is warranted with or without agreement), plaintiff is ordered to pay all costs incurred 13 by defense counsel due to plaintiff’s failure to appear at the case management conference on 14 December 10, 2009, in the amount of $2494.57, which this order finds were reasonably incurred 15 by defense counsel in attending the aborted December 10 case management conference (Moon 16 Decl. ¶ 2). Plaintiff must file proof of complete payment of these costs BY NOON ON 17 FEBRUARY 3, 2010. If plaintiff does not pay these costs by that date, the Court will very likely 18 dismiss all remaining claims in this action under FRCP 41(a). This order is without prejudice to a 19 requirement for plaintiff to pay even more for subsequent failures to attend. 20 21 IT IS SO ORDERED. 22 23 Dated: January 22, 2010. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 27 28 21
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