Mary Swan Lewis et al v. City of Manhattan Beach et al

Filing 68

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Wesley L. Hsu for Report and Recommendation 62 . IT IS ORDERED that Claims One and Two of the FAC are dismissed with prejudice, Claims Three and Four are dismissed without prejudice, and this action is dismissed. (See attached) (edr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARY SWAN LEWIS, et al.,

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Plaintiffs,

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v.
CITY OF MANHATTAN BEACH,
et al.,

Case No. 2:23-cv-3319-WLH-RAO
ORDER ACCEPTING REPORT
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

Defendants.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiffs’ First

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Amended Complaint (“FAC”) (Docket No. 26), the Magistrate Judge’s Report and

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Recommendation issued on November 27, 2024 (“Report”) (Docket No. 62),

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Plaintiffs’ Objections to the Report (Docket. No. 64), Defendants’ Reply to

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Plaintiffs’ Objections (Docket Nos. 65–66), and the other records and files herein.

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The Court has further engaged in a de novo review of those portions of the Report

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to which Plaintiffs have objected and does not find Plaintiffs’ objections have

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merit.

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I.

PLAINTIFFS OBJECT TO DISMISSAL OF THE JUDICIAL

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DECEPTION CLAIM AGAINST DETECTIVE THOMPSON

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Plaintiffs argue that the Magistrate Judge incorrectly applied the Franks

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standard, such that it should have been determined that Detective Thompson’s

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affidavit failed to support a finding of probable cause. (Objections, Docket No. 64

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at 6). Further, according to Plaintiffs, the Magistrate Judge “considered evidence

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and information” not contained in the affidavit when evaluating whether it

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sufficiently established the existence of probable cause, even seeking to “justify”

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alleged false claims within the affidavit. (Id. at 4, 8, 9). Plaintiffs allege that

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correctly purging any “misstatements” results in a complete lack of probable cause.

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(Id. at 17). The Court disagrees.

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“To support a § 1983 claim of judicial deception, a plaintiff must show that

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the defendant deliberately or recklessly made false statements or omissions that

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were material to the finding of probable cause.” KRL v. Moore, 384 F.3d 1105,

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1117 (9th Cir. 2004). “Omissions or misstatements resulting from negligence or

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good faith mistakes will not invalidate an affidavit which on its face establishes

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probable cause.” United States v. Smith, 588 F.2d 737, 740 (9th Cir. 1978). Any

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false statements submitted must be purged by the court, which then determines if

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what is left is sufficient to justify issuance of the warrant. Ewing v. City of

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Stockholm, 588 F.3d 1218, 1224 (9th Cir. 2009).

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To determine whether any statements in the affidavit was false or misleading,

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and whether those inclusions were made “deliberately or recklessly,” this

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necessarily requires examining the surrounding context in which the affidavit was

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made. It is also through that exercise that a court may determine whether

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misrepresentations or omissions bear on probable cause. See, e.g., Ewing, 588 F.3d

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at 1224-28 (affirming district court’s finding that the misstatements or problematic

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representations were not critical to the finding of probable cause by examining the

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underlying events behind the affidavit).
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The Magistrate Judge took each alleged misstatement or omission and

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assessed both whether it was properly considered a misrepresentation or omission,

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as well as its potential materiality to the ultimate finding probable cause. She

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addressed the alleged misstatement around Plaintiffs’ son’s identification in the

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bathroom;1 the alleged mischaracterization of the surveillance footage;2 and the

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photographic lineup.3 (Report, Docket No. 62 at 15-17). In each instance, she

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either determined the misrepresentation was not truly a misrepresentation or that it

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was not material. (Id.). The Magistrate Judge’s analysis is sound.
Plaintiffs also argue that the affidavit contained misstatements relating to

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their son’s potential possession of child pornography which the Magistrate Judge

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incorrectly deemed immaterial. (Objections at 17). The Magistrate Judge,

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however, correctly emphasized that the “probable cause to search Plaintiffs’

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residence for child pornography could rest only on [Plaintiffs’ son’s] surreptitious

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photographing or videoing of [the victim] in the bathroom stall. The search warrant

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affidavit does not refer to any other evidence . . .” (Report at 19). It is undisputed

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that the victim indicated that he had been sitting on the toilet with his pants down

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for about five minutes before noticing the camera lens pointed into the stall. (Id. at

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20). Therefore, “Defendant Thompson could reasonably believe that [Plaintiffs’

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The slight difference in language – exiting the stall rather than exiting the bathroom
– is not material to the determination that the man in question was Plaintiffs’ son, nor
was it misleading.
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The characterization of the person in the footage as hurriedly walking was not a
misrepresentation where he can be seen walking quickly. This is more aptly a
semantic disagreement.
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The claim that the affidavit misleadingly states that the witness was able to
positively identify their son was not a misrepresentation – even if hesitation was
expressed, as it was ultimately a positive identification.
There was no
misrepresentation. Further, any allegations of a tainted line-up area improper attempt
to expand or reframe arguments. See United States v. Howell, 231 F.3d 615, 621 (9th
Cir. 2000) (“[A] district court has discretion, but is not required, to consider evidence
presented for the first time in a party’s objection to a magistrate judge’s
recommendation”).
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son] had photographed or videoed Jack on the toilet, and that an image taken under

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these circumstances would be ‘lewd and lascivious’ regardless of the non-sexual

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nature of the activity from Jack’s point of view.” (Id.). The Magistrate Judge cites

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to a host of cases demonstrating that photographs taken under such situations can

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be considered lewd and lascivious, such that child pornography would be

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implicated. Accordingly, in her determination “Defendant Thompson’s search

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warrant affidavit established a fair probability that [Plaintiffs’ son] photographed or

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videoed a child using the toilet in a neighboring bathroom stall and that the image

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potentially constituted child pornography within the meaning of § 311.4(d)(1).”

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(Id. at 21). As such, inclusion of references to child pornography were not

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misleading, nor were they material for establishing probable cause.
The Court, therefore, disagrees that the Magistrate Judge misapplied the law,

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improperly considered evidence and information or actively sought to justify any

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alleged misstatements within the affidavit. The Court, therefore, overrules

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Plaintiffs’ objections.

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II.

PLAINTIFFS OBJECT TO THE COURT DECLINING TO

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EXERCISE SUPPLEMENTAL JURISDICTION

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Plaintiff objects to the Court’s declining to exercise supplemental jurisdiction

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over the state law claims. Plaintiff argues that because the judicial deception claim

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should have survived summary judgment, that the Court should “sustain the state

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claims.” (Objections at 27). This, however, is conclusory and insufficient to

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warrant rejecting the Report. This Court on de novo review concurs with the

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Magistrate Judge’s recommendation declining supplemental jurisdiction over the

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remaining state law claims.

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Considering the forgoing, the Court hereby accepts and adopts the findings,

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conclusions, and recommendations of the Magistrate Judge. Accordingly, IT IS

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ORDERED that Claims One and Two of the FAC are dismissed with prejudice,

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Claims Three and Four are dismissed without prejudice, and this action is

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dismissed.

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DATED: 3/11/2025

___________________________________
HON. WESLEY L. HSU
UNITED STATES DISTRICT JUDGE

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