Stroud v. Gore

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 WILLARD RICHARD STROUD, JR., Case No.: 18-CV-515 JLS (MDD) 11 Plaintiff, ORDER GRANTING DEFENDANTS’ 12 SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT 13 v. 14 (ECF No. 109) 15 SHERIFF WILLIAM D. GORE, et al., 16 Defendants. [17] 18 Presently before the Court is Defendants Sergeant Paul Michalke, Detective 19 Benjamin Shea, and Detective Jesus Lizarraga’s (collectively, the “Deputy Defendants”) 20 Supplemental Motion for Summary Judgment or, in the Alternative, Partial Summary 21 Judgment (“Mot.,” ECF No. 109). Plaintiff Willard Richard Stroud, Jr., appearing pro se, 22 did not file an opposition to the instant motion; however, he did oppose the Deputy 23 Defendants’ original Motion for Summary Judgment (“MSJ,” ECF No. 86) and argued 24 against the Court granting summary judgment in favor of the Deputy Defendants on his 25 false arrest claim. See generally ECF No. 101 (“Opp’n”). The Court vacated the hearing 26 and took the Motion under submission without oral argument pursuant to Civil Local Rule 27 7.1(d)(1). See ECF No. 105. Having considered the Parties’ arguments, the evidence, and 28 the law, the Court GRANTS the Deputy Defendants’ Motion for the reasons that follow. 1 BACKGROUND 2 Given the Parties’ and this Court’s familiarity with the facts of this case, the Court 3 incorporates by reference the Background section from the Court’s March 21, 2022 Order. 4 See ECF No. 105 (“Order”) at 2–11. Thus, the Court will set forth only the relevant facts 5 and background that were unavailable or unknown at the time the Order issued. 6 On May 19, 2021, the Deputy Defendants filed their MSJ. See MSJ. In his 7 Opposition, Plaintiff disputed that the Deputy Defendants were entitled to summary 8 judgment as to his false arrest claim. See Opp’n at 13–24. In their Reply, the Deputy 9 Defendants argued that Plaintiff did not assert a claim for false arrest. See ECF No. 103 10 (“Reply”) at 3–5. The Court found that, while Plaintiff’s pro se Third Amended Complaint 11 (“TAC,” ECF No. 63) is not a model of clarity, it did purport to state a claim for 12 “Unreasonable Seizure of Person.” Order at 26. Given the reasonable “confusion as to the 13 scope of Plaintiff’s first cause of action,” however, the Court granted the Deputy 14 Defendants leave to file a supplemental motion for summary judgment on this limited 15 ground. Id. at 27 n.8. The instant Motion followed. 16 The Deputy Defendants’ Motion incorporates by reference the factual background 17 from their MSJ, see Mot. at 1–2, and largely relies on the evidence provided in support of 18 the MSJ, see generally id. The Declaration of Defendant Sergeant Paul Michalke in 19 Support of Supplemental Motion for Summary Judgment (“Supp. Michalke Decl.,” ECF 20 No. 109-1) provides some additional evidentiary support concerning the March 12, 2016 21 enforcement operation in the form of an apparently contemporaneous “Operational Plan.” 22 See Supp. Michalke Decl. ¶ 5; see also id. Ex. A (“Operational Plan”). Sergeant Michalke 23 also declares that “[he] was not involved in the decision to place Plaintiff under arrest. 24 [He] was initially involved in the decision to detain Plaintiff after he attempted to walk 25 away from [the deputies]. However, within seconds Deputy Shea and Deputy Lizarraga 26 took over the contact for [Sergeant Michalke],” at which point “[Sergeant Michalke] 27 focused [his] attention on other people in the parking lot.” Id. ¶ 6. 28 / / / 1 LEGAL STANDARDS 2 I. Summary Judgment 3 Under Federal Rule of Civil Procedure 56(a), a party may move for summary 4 judgment as to a claim or defense or part of a claim or defense. Summary judgment is 5 appropriate where the Court is satisfied that there is “no genuine dispute as to any material 6 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 7 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect 8 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 9 genuine dispute of material fact exists only if “the evidence is such that a reasonable jury 10 could return a verdict for the nonmoving party.” Id. When the Court considers the 11 evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and 12 all justifiable inferences are to be drawn in his favor.” Id. at 255 . 13 The initial burden of establishing the absence of a genuine issue of material fact falls 14 on the moving party. Celotex, 477 U.S. at 323 . The moving party may meet this burden 15 by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and 16 admissions on file, together with the affidavits, if any,’” that show an absence of dispute 17 regarding a material fact. Id. Once the moving party satisfies this initial burden, the 18 nonmoving party must identify specific facts showing that there is a genuine dispute for 19 trial. Id. at 324 . This requires “more than simply show[ing] that there is some doubt as to 20 the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586 21 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own 22 affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ 23 designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for 24 the non-moving party. Celotex, 477 U.S. at 324 ; Anderson, 477 U.S. at 248 . The non25 moving party cannot oppose a properly supported summary judgment motion by “rest[ing] 26 on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256 . 27 / / / 28 / / / 1 II. Qualified Immunity 2 “In determining whether an officer is entitled to qualified immunity, [courts] 3 consider (1) whether there has been a violation of a constitutional right, and (2) whether 4 that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. 5 California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223 , 6 232 (2009)). Courts may “exercise sound discretion in deciding which of the two prongs 7 of the qualified immunity analysis should be addressed first in light of the circumstances 8 in the particular case at hand.” Pearson, 555 U.S. at 236 . If either prong is dispositive, the 9 court need not analyze the other prong. See id. at 236–37. 10 A right is clearly established if the law was “sufficiently clear that every reasonable 11 official would understand that what he is doing” is unlawful. District of Columbia v. 12 Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731 , 741 (2011)) 13 (internal quotation marks omitted). “We do not require a case directly on point, but existing 14 precedent must have placed the statutory or constitutional question beyond debate.” 15 al-Kidd, 563 U.S. at 741. “Except in the rare case of an ‘obvious’ instance of constitutional 16 misconduct,” a plaintiff must identify a controlling case existing at the time of the incident 17 where an officer acting under similar circumstances as the defendants was held to have 18 violated the constitutional right at issue. See Sharp v. Cnty. of Orange, 871 F.3d 901 , 911 19 (9th Cir. 2017) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). The Ninth Circuit 20 has held that “the ‘obviousness principle, an exception to the specific-case requirement, is 21 especially problematic in the Fourth-Amendment context,’” and “thus has ‘real limits when 22 it comes to the Fourth Amendment.’” O’Doan v. Sanford, 991 F.3d 1027, 1044 (9th Cir. 23 2021) (quoting Sharp, 871 F.3d at 912 ). 24 ANALYSIS 25 The Deputy Defendants argue that they “are immune from liability for the arrest of 26 Plaintiff . . . for violating California Penal Code section (“PC”) 148(a)(1) (resisting arrest).” 27 Mot. at 1. First, they argue that “the undisputed facts . . . show that [Sergeant Michalke] 28 had no involvement in the decision to arrest Plaintiff,” and accordingly he is entitled to 1 summary judgment in his favor on this claim. Id. Second, as to Deputies Shea and 2 Lizarraga, they claim that “[they] reasonably believed that Plaintiff was obstructing their 3 ability to lawfully perform their duties in searching as many visitors as possible before 4 entering the George Bailey Detention Facility (“GBDF”).” Id. Because “no case law 5 placed the Deputy Defendants on notice that Plaintiff’s arrest, after he refused to cooperate 6 in a lawful administrative search while on detention facility grounds, was not reasonable,” 7 they are entitled to qualified immunity. Id. 8 The Court addresses each argument in turn. 9 I. Sergeant Michalke 10 As an initial matter, the Deputy Defendants contend that Sergeant Michalke was not 11 personally involved in the decision to place Plaintiff under arrest; accordingly, he cannot 12 be liable for Plaintiff’s allegedly unlawful arrest. Mot. at 8. The Court previously found 13 that Plaintiff failed to raise an issue of material fact as to Sergeant Michalke’s personal 14 participation in Plaintiff’s arrest. See Order at 28. Although Sergeant Michalke grabbed 15 Plaintiff’s arm to escort him to a nearby vehicle to effectuate the search of his person, 16 Deputy Shea took over for him “[w]ithin seconds.” Declaration of Defendant Sergeant 17 Paul Michalke (“Michalke Decl.,” ECF No. 86-2) ¶ 9. Sergeant Michalke had no further 18 involvement in the detention and eventual arrest of Plaintiff, instead “focus[ing] his 19 attention on other people in the parking lot . . . to prevent any other potential threats to [the 20 deputies’] safety and to direct other visitors away from the area.” Supp. Michalke Decl. 21 ¶ 6. Plaintiff presents no evidence to the contrary. See generally Opp’n. Accordingly, the 22 Court finds that, as a matter of law, Sergeant Michalke is not liable for false arrest based 23 on his personal participation in Plaintiff’s arrest. 24 Moreover, to the extent that Plaintiff seeks to hold Sergeant Michalke liable based 25 on his failure to intercede in Plaintiff’s arrest by others, the Deputy Defendants argue that 26 no case law at the time of the complained of acts established when an officer has a realistic 27 opportunity to intercede. Mot. at 10 (citing Penaloza v. City of Rialto, 836 F. App’x 547 , 28 549 (9th Cir. 2020)). The Court agrees that, to the extent Plaintiff asserts an unlawful arrest 1 claim against Sergeant Michalke for failure to intercede, Sergeant Michalke is entitled to 2 qualified immunity. Accordingly, the Court GRANTS the Deputy Defendants’ Motion as 3 to Sergeant Michalke. 4 II. Deputies Shea and Lizarraga 5 A. Constitutional Violation: Unlawful Arrest 6 “In order to satisfy the requirements of the Fourth Amendment, an arrest must be 7 supported by probable cause to believe that the arrestee has committed a crime.” Allen v. 8 City of Portland, 73 F.3d 232 , 236 (9th Cir. 1995), as amended (Jan. 17, 1996) (citing 9 Henry v. United States, 361 U.S. 98, 102 (1959)). “In determining whether there was 10 probable cause to arrest, we look to ‘the totality of circumstances known to the arresting 11 officers, [to determine if] a prudent person would have concluded there was a fair 12 probability that [the defendant] had committed a crime.’” Crowe v. Cnty. of San Diego, [13] 608 F.3d 406, 432 (9th Cir. 2010) (citing United States v. Smith, 790 F.2d 789, 792 (9th 14 Cir. 1986)). “The analysis involves both facts and law. The facts are those that were 15 known to the officer at the time of the arrest. The law is the criminal statute to which those 16 facts apply.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011). “‘[I]n a 17 § 1983 action the factual matters underlying the judgment of reasonableness generally 18 mean that probable cause is a question for the jury, and summary judgment is appropriate 19 only if no reasonable jury could find that the officers did or did not have probable cause to 20 arrest.’” Orr v. Cal. Highway Patrol, No. CIV. 2:14-585 WBS, 2015 WL 848553 , at *5 21 (E.D. Cal. Feb. 26, 2015) (quoting McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 22 1984)). 23 Plaintiff was arrested for resisting or obstructing an officer in violation of PC 24 148(a)(1).1 Defendants’ Statement of Undisputed Facts in Support of Motion for Summary 25 Judgment (“SUF,” ECF No. 86-7) ¶ 30. “The elements of the asserted crime . . . are: ‘(1) [26] 27 1 The Deputy Defendants’ Motion does not argue that the Deputy Defendants are entitled to summary 28 judgment to the extent Plaintiff was also arrested for public intoxication in violation of California Penal 1 the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer 2 was engaged in the performance of his or her duties, and (3) the defendant knew or 3 reasonably should have known that the other person was a peace officer engaged in the 4 performance of his or her duties.’” Velazquez v. City of Long Beach, 793 F.3d 1010 , 1018 5 (9th Cir. 2015) (quoting Garcia v. Superior Court, 177 Cal. App. 4th 803, 818 (2009)). 6 “Notably, ‘[f]or a § 148(a)(1) conviction to be valid, a criminal defendant must have 7 “resist[ed], delay[ed], or obstruct[ed]” a police officer in the lawful exercise of his duties.’” 8 Id. (quoting Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (alterations 9 and emphasis in original)). “[F]or the purposes of Section 148(a), ‘an officer is not lawfully 10 performing her duties when she detains an individual without reasonable suspicion or 11 arrests an individual without probable cause.’” Id. at 1019 (quoting Garcia, 177 Cal. App. 12 4th at 819). 13 Here, the Deputy Defendants contend that they had probable cause to arrest Plaintiff 14 for violating PC 148(a)(1) because they could have reasonably believed that Plaintiff 15 obstructed their enforcement operation on the detention facility grounds. Mot. at 5. The 16 Deputy Defendants concede that “Plaintiff’s refusal to cooperate with the Deputy 17 Defendants[] may not have risen to the level of probable cause for an arrest under PC 148 18 in a public area,” id. at 6; however, they argue that, because Plaintiff was on the grounds 19 of a secure detention facility, the Deputy Defendants reasonably believed there was 20 probable cause to arrest Plaintiff for obstructing their administrative search to intercept 21 contraband, see id. 22 Specifically, the Deputy Defendants contend that Sheriff’s Deputies previously had 23 identified a problem with contraband entering GBDF and, on the day in question, the 24 Detentions Investigation Unit was conducting a lawful enforcement operation in the GBDF 25 parking lot, seeking to contact as many visitors as possible before they entered the facility’s 26 lobby to ensure they were not in possession of contraband. Mot. at 6 (citing SUF ¶¶ 5–8; 27 Supp. Michalke Decl. Ex. A). During the enforcement operation, deputies were also 28 checking that visitors did not have prior prison sentences that would preclude their visit 1 pursuant to California Penal Code § 4571. SUF ¶ 8. During the incident, the Deputy 2 Defendants were wearing vests that clearly identified them as Sheriff’s Deputies, and 3 Plaintiff was aware of the Deputy Defendants’ affiliation. Mot. at 6 (citing SUF ¶ 6). Upon 4 questioning by the Deputy Defendants, Plaintiff disclosed that he had a criminal history of 5 “street crimes.” Id. (citing SUF ¶ 14). Further, Plaintiff admits that he stated he did not 6 wish to be searched. Id. (citing SUF ¶¶ 15–16). The Deputy Defendants contend that 7 “most visitors were willing to cooperate with the operation”; “[t]hus, Plaintiff’s actions 8 were abnormal.” Id. at 7 (citing SUF ¶ 17). Plaintiff’s refusal to submit to a search “was 9 especially odd considering that multiple signs warned Plaintiff that he would be subject to 10 search upon entering the parking lot.” Id. (citing SUF ¶ 4). “Regardless of whether 11 Plaintiff was actually carrying contraband into the facility, his reaction to the deputies 12 prevented Deputies Shea and Lizarraga from being able to apprehend potential contraband, 13 thereby delaying and obstructing a lawful operation.” Id. “Consequently, it was reasonable 14 for Deputies Shea and Lizarraga to believe that they had probable cause to arrest Plaintiff 15 for violating PC 148.” Id. (footnote omitted). 16 As the Court noted in its prior Order, however, many of the facts surrounding 17 Plaintiff’s detention and arrest are disputed, and this Court must construe the facts in the 18 light most favorable to Plaintiff, the nonmovant. “Where the facts or circumstances 19 surrounding an individual’s arrest are disputed, the existence of probable cause is a 20 question for the jury.” Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 21 2008) (citing McKenzie, 738 F.2d at 1008 ). Such is the case here. For example, according 22 to Plaintiff, the Deputy Defendants told Plaintiff that they were going to search him and 23 his car, but Plaintiff declined to be searched and indicated that he did not want to proceed 24 with his visit. See Defendants’ Notice of Lodgment in Support of Motion for Summary 25 Judgment Ex. A (ECF No. 86-6) at 68:21–23; Plaintiff’s Notice of Lodgment in Opposition 26 to Motion for Summary Judgment (ECF No. 101) Ex. C (Declaration of Plaintiff Willard 27 Richard Stroud Jr. (“Pl. Decl.”)) ¶¶ 5–6. “[W]ithin 3 seconds Deputy Defendants went 28 hands on.” Pl. Decl. ¶ 6. “Thus, [Plaintiff] did not have the opportunity to comply or 1 refuse to comply with their orders.” Arias v. Amador, 61 F. Supp. 3d 960, 973 (E.D. Cal. 2 2014). Accordingly, viewing the evidence and drawing all inferences in the light most 3 favorable to Plaintiff, a jury could find that there was not probable cause to arrest Plaintiff 4 for a violation of PC 148(a)(1) because a jury could find that Plaintiff was only guilty of 5 declining to be searched, and, “[u]nder California law, the fact that someone verbally 6 challenges a police officer’s authority or is slow to comply with orders does not mean that 7 they have delayed an investigation.” Id. at 971 (citing People v. Quiroga, 16 Cal. App. 4th 8 961, 966 (1993)); see also Rios v. City of San Diego, No. 13-CV-3004 JLS (DHB), 2015 9 WL 12513462 , at *8 (S.D. Cal. Oct. 13, 2015) (“Furthermore, ‘[i]t is well established under 10 California law that even “an outright refusal to cooperate with police officers cannot create 11 adequate grounds for [police] intrusion” without more.’” (quoting Mackinney v. Nielsen, [12] 69 F.3d 1002, 1006 (9th Cir. 1995)). Accordingly, a reasonable jury could conclude that 13 Deputies Shea and Lizarraga violated Plaintiff’s Fourth Amendment rights by arresting 14 him for violation of PC 148 without probable cause. 15 B. Clearly Established Law 16 This does not conclude the Court’s analysis, however, as Deputies Shea and 17 Lizarraga contend that they are entitled to qualified immunity because there was no clearly 18 established law at the time of Plaintiff’s arrest placing them on notice that arresting Plaintiff 19 for violating PC 148 violated Plaintiff’s Fourth Amendment rights. Mot. at 9. “To the 20 contrary, Cates v. Stroud, the case most particularized to the facts of this case, states that 21 prior to 2016 no cases existed to instruct deputies that a prison visitor must be allowed to 22 leave the prison grounds before being searched.” Id. at 10 (citing 976 F.3d 972, 985 (9th 23 Cir. 2020)). The Deputy Defendants contend that, “[w]hile other cases may generally 24 discuss the requirements for probable cause, to be particularized to the facts of the present 25 case, any case placing deputies on notice must involve lawful administrative searches and 26 a Plaintiff who, despite being on notice of such searches, refused to cooperate in a lawful 27 administrative search, and was subsequently placed under arrest for violating PC 148 as a 28 result of refusing to cooperate in that operation.” Id. The Deputy Defendants argue that, 1 ||should Plaintiff fail to meet his burden to point to such a case, “Defendants are immune 2 || from liability.” Jd. 3 “{T]he question in determining whether qualified immunity applies is whether all 4 ||reasonable officers would agree that there was no probable cause in this instance.” 5 || Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1078 (9th Cir. 2011) (citation and footnote 6 |}omitted). In other words, “an officer is entitled to qualified immunity whenever, on facts 7 ||not subject to genuine dispute, it is clear that whether probable cause existed was a close 8 || question.” Flynn v. City of Santa Clara, 388 F. Supp. 3d 1158, 1169 (N.D. Cal. 2019) 9 ||(emphasis in original) (citation and internal quotation marks omitted). While the Court 10 || finds Cates to be of limited relevance to Plaintiff's unlawful arrest claim, given that no 11 |/arrest was at issue in Cates, the Court ultimately agrees that Plaintiff has failed to satisfy 12 || his burden of pointing to controlling authority that would have put the Deputy Defendants 13 |/on notice that their conduct violated Plaintiff's constitutional rights. The Court cannot 14 conclude, on the facts before it, that all reasonable officers would agree that there was no 15 || probable cause. Because the probable cause determination here is a close question, the 16 ||Court concludes that Deputies Shea and Lizarraga are entitled to qualified immunity on 17 || Plaintiff's false arrest claim. 18 CONCLUSION 19 In light of the foregoing, the Court GRANTS the Deputy Defendants’ Supplemental 20 || Motion for Summary Judgment (ECF No. 109). The Court will issue a separate ruling on 21 || Plaintiff's pending motion to appoint counsel (ECF No. 110) in due course. 22 IT IS SO ORDERED. 23 ||Dated: September 22, 2022 tL f He. 24 on. Janis L. Sammartino 5 United States District Judge