Rascon v. Rodriguez, et al.

Filing 14

MEMORANDUM DECISION and ORDER Denying Defendants' 8 Motion to Dismiss signed by Judge Oliver W. Wanger on 1/20/2009. Answer due by 2/12/2009. (Esteves, C)

1 2 3 4 5 6 7 8 9 10 11 12 13 CATALINA RODRIGUEZ, et al., 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. vs. Plaintiff, JOE RASCON, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-08-1394 OWW/GSA MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS (Doc. 8) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff Joe Rascon has filed a Complaint for Damages against Catalina Rodriguez, Jonathan Long and David Wilkin, peace officers with the Fresno Police Department; Larry Hustedde, a sergeant with the Fresno Police Department; and Mark Salazar, a lieutenant with the Fresno Police Department. Plaintiff's Complaint alleges the following facts: 9. On January 25, 2008, Plaintiff stopped at the Moonlite Restaurant located at 2731 West Clinton Avenue, Fresno, California, where he was served and consumed two non-alcoholic beverages. 10. At approximately 5:20 p.m. as Plaintiff 1

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exited the restaurant, he observed a Fresno police officer sitting in a patrol car with its overhead lights activated, parked in the middle of the restaurant parking lot. The patrol car was located in a position partially behind and at a distance from Plaintiff's pickup, which was parked in a space immediately adjacent the building in a row with other parked vehicles. 11. Plaintiff visually scanned the parking lot to determine if there was a vehicle that was the subject of the patrol car's presence at that location but there was no other vehicle not in a parking space and Plaintiff did not identify any person who appeared to be involved with the police officer. The officer appeared to be completing paperwork inside the patrol car. 12. Plaintiff entered his pickup, started the engine and turned on its lights. Plaintiff then engaged in a cell phone conversation for approximately one minute. After completing that conversation, Plaintiff looked back and determined the patrol car was still in the same location with the officer in the driver's seat. Plaintiff exited his vehicle, went to the rear of the cab, waved at the officer but did not make any eye contact nor speak to the officer. 13. Plaintiff got back into the pickup and started maneuvering the vehicle out of the parking space. When the rear end of Plaintiff's pickup passed in front of the patrol car, the officer, Defendant Rodriguez, appeared to the left and rear of the pickup's driver's side door. Defendant Rodriguez then yelled at Plaintiff that he was interfering with her traffic stop, to get out of his vehicle and accused Plaintiff of having been drinking. 14. Plaintiff exited his vehicle as ordered and told Defendant Rodriguez that he had not been interfering and was merely backing out so he could leave; he further advised Defendant Rodriguez that he had not been aware she was conducting a stop. 2

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15. At that time, a second patrol car arrived with two officers in it. One of the officers, Defendant Wilkin, asked Defendant Rodriguez what was happening and she said that Plaintiff had been interfering. Both officers in the second patrol car then exited their vehicle. Defendant Wilkin requested Plaintiff's driver's license, which Plaintiff provided. Defendant Wilkin took the license and walked back to the patrol car. Defendant Rodriguez then walked over to a car parked to the left of Plaintiff's pickup and contacted its driver. 16. After the two officers walked away, Defendant Long started talking to Plaintiff in a disrespectful manner and pointing his right index finger repeatedly in Plaintiff's face. Plaintiff stated that Defendant Long needed to stop addressing Plaintiff in such a rude and disrespectful manner; that Defendants did not have legal cause to detain Plaintiff. 17. Defendant Wilkin returned and said to Plaintiff `You need to shut your mouth; you're pissing me off.' Defendant Wilkin then leaned over Plaintiff's body, audibly sniffed and said he smelled alcohol. Defendant Wilkin stated Plaintiff was under arrest for interfering and operating a motor vehicle while under the influence of alcohol. Plaintiff was handcuffed and walked by Defendant Wilkin to the patrol car. 18. At the patrol car, Defendant Wilkin searched Plaintiff and retrieved his wallet and thereby observed Plaintiff's Fresno County Sheriff's badge and identification. Defendant Wilkin asked Plaintiff why he had not said he was a cop. Defendant Wilkin put Plaintiff in the rear of his caged patrol car. 19. Approximately ten minutes later, Defendant Hustedde arrived and spoke with the Defendant Officers. With Plaintiff in the rear of the patrol car, Defendant Hustedde questioned Plaintiff three separate times regarding the facts of the allegations of interfering with Defendant Rodriguez's 3

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traffic stop. Defendant Hustedde questioned Plaintiff about the consumption of any alcoholic beverage. Defendant Hustedde stated there had been no violation of law. Defendant Hustedde stated he had to summon his lieutenant to determine whether to book Plaintiff into jail. 20. Plaintiff requested a PAZ test to determine his blood alcohol but Defendant Hustedde stated the lieutenant had refused to permit this. Plaintiff is informed and believes the referenced lieutenant was Defendant Salazar. 21. Approximately thirty minutes after Plaintiff had been arrested, Defendant Salazar arrived and spoke with the Defendant Officers, Defendant Hustedde and others. After Defendant Salazar had been on the scene approximately twenty minutes, Plaintiff was released with no charges. Defendant Salazar also refused to have a PAZ test administered. The First Claim for Relief is for violation of 42 U.S.C. § 1983 and alleges that, in detaining and arresting Plaintiff, Defendants violated Plaintiff's right to equal protection and to be free from unreasonable search and seizure. for Relief alleges: 25. That Defendants, and each of them, in all of their mutual and respective acts and omissions in connection with Plaintiff's detention and arrest, knew that Plaintiff had violated no law and that their aforesaid actions were without probable cause and in violation of Plaintiff's aforesaid Constitutional rights and that the violation of these rights was knowing, willful and malicious and with reckless disregard for Plaintiff's rights. 26. Plaintiff believes that Defendants, and each of them, in all of their mutual and respective acts and omissions in connection with Plaintiff's detention and arrest, were motivated by the fact that Plaintiff is 4 The First Claim

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Hispanic. The Second Claim for Relief is for conspiracy in violation of 42 U.S.C. § 1985 and alleges: 29. In perpetrating, allowing, and ratifying the aforesaid acts and omissions, Defendants Rodriguez, Long and Wilkin, and each of them, conspired to and did interfere with and deny Plaintiff the exercise of his civil rights to be free from unlawful search and seizure. 30. In perpetrating, allowing and ratifying the aforesaid acts and omissions of Defendants Rodriguez, Long and Wilkin, and each of them, Defendants Hustedde and Salazar refused to prevent the violation of Plaintiff's rights and the injuries and losses arising therefrom. The Third Claim for Relief is for negligence pursuant to 42

12 U.S.C. § 1986 and alleges: 13 14 15 16 17 18 19 20 21 22 Defendants move to dismiss the Complaint for failure to 23 state a claim upon which relief can be granted pursuant to Rule 24 12(b)(6), Federal Rules of Civil Procedure. 25 A. 26 5 Governing Standards. 35. Defendants Rodriguez [sic] and Hustedde, individually had knowledge of the aforesaid acts and omissions of Defendants Wilkin, Long and Salazar [sic], and each of them. 36. Defendants Rodriguez [sic] and Hustedde, individually, had the power to prevent or aid in preventing the commission of these wrongs, but each of said Defendants neglected or refused to do so. 37. In perpetrating, allowing and ratifying the aforesaid acts and omissions, Defendants Rodriguez [sic] and Hustedde, and each of them, neglected to prevent the violation of Plaintiff's rights and the injuries and losses arising therefrom.

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A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. 732 (9th Cir.2001). Novarro v. Black, 250 F.3d 729,

"A district court should grant a motion to

dismiss if plaintiffs have not pled `enough facts to state a claim to relief that is plausible on its face.'" Williams ex rel. Tabiu v. Gerber Products Co., 523 F.3d 934, 938 (9th Cir.2008), quoting Bell Atlantic Corp. v. Twombley, ___ U.S. ___, 127 S.Ct. 1955, 1974 (2007). "`Factual allegations must be enough to raise "While a

a right to relief above the speculative level.'" Id.

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." id. at 1964-1965. Bell Atlantic,

Dismissal of a claim under Rule 12(b)(6) is

appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 46 (1957). Conley v. Gibson, 355 U.S. 41, 45-

Dismissal is warranted under Rule 12(b)(6) where the

complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, In reviewing a motion to

Inc., 749 F.2d 530, 534 (9th Cir.1984).

dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. 6

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Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002).

However,

legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Inc., 349 F.3d 1191, 1200 (9th Cir.2003). Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Ileto v. Glock,

Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) When ruling on a motion to dismiss, the court may

consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. F.3d 699, 705-706 (9th Cir.1988). B. FIRST CLAIM FOR RELIEF. Parrino v. FHP, Inc., 146

Defendants move to dismiss the First Claim for Relief on the grounds that Plaintiff has failed to state a claim for denial of equal protection under Section 1983; Plaintiff has failed to adequately allege personal participation by all Defendants; and Defendants Rodriguez, Hustedde and Salazar are entitled to qualified immunity. 1. Denial of Equal Protection.

"`To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based on his 7

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membership in a protected class.'" Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1179 (E.D.Cal.2005), quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001); see also Moua v. City of Chico, 324 F.Supp.2d 1132, 1137 (E.D.Cal.2004): In order to make out an equal protection violation, plaintiffs must prove four elements: (1) the municipal defendants treated them differently from others similarly situated; (2) this unequal treatment was based on an impermissible classification; (3) the municipal defendants acted with discriminatory intent in applying this classification; and (4) plaintiffs suffered injury as a result of the discriminatory classification. Defendants contend that the Complaint's conclusory allegation that Plaintiff's detention and arrest were motivated by the fact that Plaintiff is Hispanic does not state a claim because there are no allegations which support his being treated differently from other similarly situated persons or that Defendants acted with an intent or purpose to discriminate against Plaintiff based on his national origin. Plaintiff responds that the factual allegations in the Complaint imply that Defendants' actions were based on Plaintiff's location outside a restaurant, his attempt to leave the parking lot, and his physical appearance. Plaintiff alleges

that he had not consumed any alcohol, negating any inference that he smelled of alcohol or was under the influence of alcohol. Plaintiff asserts that Defendant Rodriguez did not appear to Plaintiff to be involved in a traffic stop with which Plaintiff could have interfered and refers to the allegations that 8

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Defendants Rodriguez, Wilkin and Long were rude and disrespectful in their comments to Plaintiff. Plaintiff contends that "[f]rom

these facts and his personal knowledge of the conduct and attitude of Defendants," his treatment by Defendants was racially motivated. Plaintiff further notes that intent and motivation

"are almost always conclusory allegations not susceptible to factual allegations in a complaint" and argues that the factual allegations sufficiently support an inference of unlawful racial motive to withstand the motion to dismiss on this ground. Defendants' motion to dismiss on this ground is DENIED. 2. Personal Participation.

Defendants move to dismiss the First Claim for Relief on the ground that their respective personal participation in the alleged constitutional violations is not adequately pleaded. "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. section 1983." Cir.1989). There is no respondeat superior liability under Taylor v. List, 840 F.2d 1040, 1045 (9th

As explained in Blankenhorn v. City of Orange, 485

F.3d 463, 481 n.12 (9th Cir.2007): An officer's liability under section 1983 is predicated on his `integral participation' in the alleged violation. Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir.1996). `"[I]ntegral participation' does not require that each officer's actions themselves rise to the level of a constitutional violation.' Boyd, 374 F.3d at 780. But it does require some fundamental involvement in the conduct that 9

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allegedly caused the violation. a. Catalina Rodriguez.

See id.

Defendants argue that the facts alleged against Defendant Rodriguez do not state a claim, asserting that the Complaint alleges that Rodriguez yelled at Plaintiff that he was interfering with her traffic stop, ordered him to get out of his vehicle, and accused Plaintiff of having been drinking. At that

point Defendants Wilkin and Long arrived and Rodriguez walked over to another vehicle and talked to its driver. Defendants

argue that there are no allegations of any personal participation by Rodriguez in Plaintiff's arrest and the claim for violation of the Fourth Amendment should be dismissed against her. Plaintiff responds that Rodriguez falsely accused him of interfering with her traffic stop and with drinking. When

Defendant Wilkin placed Plaintiff under arrest, Rodriguez acquiesced by failing to tell Wilkin the truth and that no field sobriety test had been conducted. Plaintiff asserts that

Rodriguez failed to act as a reasonable law enforcement officer to stop an unlawful arrest. Defendants argue that merely apprising other officers of her assessment of the situation does not rise to the level of participation in a constitutional violation. Defendant Rodriguez

did not detain or arrest Plaintiff and her presence at the scene at the time of his arrest does not implicate her in the allegations of unlawful arrest. Defendants' contention ignores that Rodriguez was the 10

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initial and motivating force for Plaintiff's detention and allegedly gave false information about Plaintiff to cause the detention and arrest. Defendants' motion to dismiss as to Defendant Rodriguez is DENIED. b. Larry Hustedde.

Defendants assert that the allegations against Defendant Hustedde do not infer his personal participation in the alleged violations of Plaintiff's Equal Protection or Fourth Amendment rights. The Complaint alleges that Defendant Hustedde arrived on

the scene after Plaintiff had been arrested and placed in the back of the patrol car. Defendant Hustedde questioned Plaintiff Shortly

and then contacted his supervisor, Defendant Salazar.

after Defendant Salazar arrived, Plaintiff was released. Plaintiff responds that Defendant Hustedde acknowledged to Plaintiff that no violation of the law had occurred and refused to conduct a PAZ test, thereby inferentially demonstrating his awareness that Plaintiff was not under the influence and his acquiescence in and perpetuation of an allegedly false accusation and arrest. Plaintiff asserts that Defendant Hustedde continued

Plaintiff's unlawful detention by not releasing him and "by passing it on to Lt. Salazar," thereby failing to act as a reasonable law enforcement officer to stop an unlawful arrest. Defendants argue that Sergeant Hustedde's attempt to gather information prior to Plaintiff's release does not establish his "integral participation" in Plaintiff's detention or arrest. 11

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Defendants' motion to dismiss as to Defendant Hustedde is DENIED. Defendants' contentions raise factual issues to be

resolved by summary judgment or trial. c. Mark Salazar.

The Complaint alleges that, approximately thirty minutes after Plaintiff was arrested, Defendant Salazar arrived at the scene at the request of Defendant Hustedde. Defendant Salazar

spoke with the officers at the scene for approximately twenty minutes and then ordered Plaintiff released. Defendants contend

there are no facts to support Defendant Salazar's personal participation in the alleged violations of Plaintiff's constitutional rights. Plaintiff responds that the Complaint alleges that Defendant Salazar refused him the PAZ test before he arrived on the scene, implying that Defendant Salazar did not believe Plaintiff was under the influence of alcohol and did not want to know the truth, but did not immediately order him to be released and unjustifiably prolonged the unlawful detention and arrest after Defendant Hustedde had determined no law had been violated. Plaintiff further argues that the fact that a sergeant and a lieutenant were called to the scene "gives rise to the implication that Defendants were aware the arrest was unlawful and were trying to extricate themselves." Plaintiff contends

that each defendant contributed to the total circumstances and each should be held accountable. That Defendant Salazar took some time to gather information 12

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to assess the situation does not establish his integral participation in Plaintiff's detention and arrest. However,

there is no legal justification for his refusal of the PAZ test while Plaintiff was endeavoring to exonerate himself. The extent

to which he knew or should have known that the Defendants Rodriguez, Long and Wilkin were falsifying the alleged probable cause for arrest and continuing an unlawful arrest merits discovery. Defendants' motion to dismiss on this ground is DENIED. 3. Qualified Immunity.

Defendants Rodriguez, Hustedde and Salazar move to dismiss the First Claim for Relief on the ground of qualified immunity with regard to Plaintiff's claims of detention and arrest in violation of the Fourth Amendment. Qualified immunity serves to shield government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Fitzgerald, 457 U.S. 800, 818 (1982). Harlow v.

The Supreme Court has set

forth a two-pronged inquiry to resolve all qualified immunity claims. First, "taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officers' conduct violated a constitutional right?" U.S. 194, 201 (2001). Saucier v. Katz, 533

If the court determines that the conduct

did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity. 13 However, if the

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court determines that the conduct did violate a constitutional right, Saucier's second prong requires the court to determine whether, at the time of the violation, the constitutional right was "clearly established." Id. "The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." 202. Id. at

This inquiry is wholly objective and is undertaken in light Id. at 201.

of the specific factual circumstances of the case.

Even if the violated right is clearly established, Saucier recognized that, in certain situations, it may be difficult for a police officer to determine how to apply the relevant legal doctrine to the particular circumstances he faces. If an officer

makes a mistake in applying the relevant legal doctrine, he is not precluded from claiming qualified immunity so long as the mistake is reasonable. If "the officer's mistake as to what the

law requires is reasonable, ... the officer is entitled to the immunity defense." Id. at 205. In Brosseau v. Haugan, 543 U.S.

194 (2004), the Supreme Court reiterated: Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. Katz, 533 U.S., at 206 (qualified immunity operates `to protect officers from the sometimes "hazy border between excessive and acceptable force"'). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time 14

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did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation. It is important to emphasize that this inquiry `must be undertaken in light of the specific context of the case, not as a broad general proposition.' Id., at 201. As we previously said in this very context: `[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet, that is not enough. Rather, we emphasized in Anderson [v. Creighton] "that the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.' ... The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.' ... The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and Garner ... In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment's text, are cast at a high level of generality. See Graham v. Connor, supra, at 396 (`"[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application"'). Of course, in an obvious case, these standards can `clearly establish' the answer, even without a body of relevant case law.' 15

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543 U.S. at 198-199.

However, as explained in Wilkins v. City of

Oakland, 350 F.3d 949, 956 (9th Cir.2003), cert. denied sub nom. Scarrot v. Wilkins, 543 U.S. 811 (2004): Where the officers' entitlement to qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the non-moving party, summary judgment is not appropriate. See Saucier, 533 U.S. at 216 ... (Ginsberg, J., concurring)(`Of course, if an excessive force claim turns on which of two conflicting stories best captures what happened on the street, Graham will not permit summary judgment in favor of the defendant official.'). Probable cause to arrest exists if, "under the totality of

11 the circumstances known to the arresting officers, a prudent 12 person would have concluded that there was a fair probability 13 that [the plaintiff] had committed a crime. 14 Lewiston, 354 F.2d 1058, 1065 (9th Cir.2004). 15 where an officer is claiming qualified immunity for a false 16 arrest claim is "whether a reasonable officer could have believed 17 that probable cause existed to arrest the plaintiff." 18 v. Fox, 312 F.3d 423, 437 (9th Cir.2002). 19 does not depend on whether probable cause actually existed. 20 a. 21 Defendants argue that it was not unreasonable for Defendant 22 Rodriguez to ask Plaintiff to exit his vehicle and then allow 23 Defendants Wilkin and Long to take over as she was already 24 engaged in another traffic stop; that it was not unreasonable for 25 Defendant Hustedde, who arrived after Plaintiff was arrested, to 26 16 Defendant Rodriguez. Qualified immunity Franklin The proper inquiry Beier v. City of

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question Plaintiff and then call Defendant Salazar; and that it was not unreasonable for Defendant Salazar, who arrived thirty minutes after Plaintiff's arrest, to speak with the officers and then order Plaintiff released. This totally partisan analysis

accepts the credibility of the Defendants and ignores the allegations of the Complaint. Plaintiff responds that Defendants' invocation of qualified immunity fails to address the question of national origin discrimination. Although Defendant Rodriguez could lawfully ask

Plaintiff to exit his vehicle and turn it over to further investigation, Plaintiff contends, if she did so because Plaintiff was Hispanic, her conduct was unlawful and no officer could reasonably believe "that is a lawful basis." Moreover, she

is alleged to have falsely accused Plaintiff of interfering with her unrelated investigation and she did not conduct any sobriety evaluation. "Although a defendant's subjective intent is usually not relevant to the qualified immunity defense, his mental state is relevant when ... it is an element of the alleged constitutional violation." Clement v. Gomez, 298 F.3d 898, 903 (9th Cir.2002),

citing Jeffers v. Gomez, 267 F.3d 895, 911 (9th Cir.2001). Plaintiff argues that he has not had the opportunity to obtain evidence of motive and should be allowed to do so: "Defendant Rodriguez will need to be able to articulate a lawful basis for her acts and her omissions consistent with the facts and circumstances." 17

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Defendants reply that Plaintiff is "attempting to implicate her in a Fourth Amendment violation" and that Defendant Rodriguez's subjective intent is irrelevant: It would not be unreasonable for Rodriguez to ask Plaintiff to exit the vehicle and then allow Officers Wilkin and Long to take over as she was already engaged in another traffic stop. Nor would it be clear to Rodriguez or any other reasonable officer that doing so would be unlawful. The analysis is complicated because the First Claim for Relief alleges both a violation of the Fourth Amendment and a violation of the Equal Protection Clause. Subjective motivation

is irrelevant to a violation of the Fourth Amendment but is relevant to a violation of the Equal Protection Clause. Defendants seek qualified immunity solely on the alleged violation of the Fourth Amendment. Here, the Complaint alleges

that Defendant Rodriguez falsely accused Plaintiff of interfering with a non-existent traffic stop and with being under the influence of alcohol, when he alleges he was not. It is

inferrable that Defendant Rodriguez advised Defendants Long and Wilkin of these allegedly false accusations, thereby causing them to place Plaintiff under arrest. Because the facts have not been

developed, there is a dispute as to Defendant Rodriguez's actions. There can be no question that using false accusations

to effect an arrest violates a clearly established constitutional right under the Fourth Amendment of which a reasonable officer would have known, i.e., the right to be free from arrest when there is no probable cause. With regard to the alleged violation 18

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of equal protection, evidence of subjective motivation is a part of any determination of qualified immunity for the alleged violation of equal protection. matter of law. Defendants' motion to dismiss on qualified immunity grounds as to Defendant Rodriguez is DENIED. b. Defendant Hustedde. This decision cannot be made as a

With regard to Defendant Hustedde, Plaintiff contends that he expressly ratified Plaintiff's wrongful arrest by failing to release Plaintiff once Defendant Hustedde acknowledged that Plaintiff had not violated the law: Having reached this conclusion, Defendant Hustedde could not reasonably believe Rascon could lawfully continue to be held ... Rascon's's continued unlawful detention was directly attributable to Defendant Hustedde. Defendants cite Martiszus v. Washington County, 325 F.Supp.2d 1160, 1165 (D.Or.2004) as authority that ratification requires a policymaker's approval of a subordinate's decision. Defendants assert that Plaintiff does not allege that Sergeant Hustedde was a policymaker. Martiszus is not controlling.

Martiszus discusses the imposition of municipal liability under Monell. Defendants argue that, "[n]otwithstanding the first question of whether Sgt. Hustedde calling his superior to the scene before he [sic] released Rascon rises to the level of a Fourth Amendment violation, the question is whether it would it [sic] be clear to Sgt. Hustedde that doing so was unlawful under the circumstances 19

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facing him." The officers at the scene, Defendants Wilkin and Long, arrested Plaintiff. For reasons based on his own observations, It is

Defendant Hustedde did not agree with their assessment.

necessary that discovery be conducted to determine the basis for Defendant Hustedde's alleged violation of Plaintiff's rights against unlawful arrest by seeking advice from his superior officer. Defendants' motion to dismiss on qualified immunity grounds as to Defendant Hustedde is DENIED. c. Defendant Salazar.

With regard to Defendant Salazar, Plaintiff asserts that circumstances indicate that Defendant Salazar had been briefed before he arrived on the scene because Defendant Hustedde told Plaintiff that a lieutenant had denied Plaintiff's request for a PAZ test. Plaintiff contends that, because Defendant Hustedde

had already concluded that Plaintiff had not violated any law, "it is unclear why Salazar had to respond to the scene and why he did not just order him released." Plaintiff asserts that when

Defendant Salazar did arrive, he did not immediately order Plaintiff released, although he continued the refusal to conduct a PAZ test requested by Plaintiff. Defendants reply that the fact Defendant Salazar took the time to assess the situation does not implicate him in the alleged Fourth Amendment violation: "He was not there when the events transpired so its stands to reason he would want to gather 20

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information before taking action." Although Defendant Salazar was not present when Plaintiff was detained and arrested and did not agree with the assessment by Defendants Rodriguez, Long and Wilkin, it is necessary to conduct discovery to determine why Defendant Salazar did not immediately order Plaintiff's release, knowing that Defendant Hustedde had decided no law had been violated. Defendants' motion to dismiss on qualified immunity grounds as to Defendant Salazar is DENIED. C. SECOND CLAIM FOR RELIEF.

Defendants move to dismiss the Second Claim for Relief for conspiracy in violation of Section 1985(3) on the ground that the allegation of conspiracy is not adequately pleaded. In order to state a claim upon which relief can be granted under Section 1985(3), a plaintiff must allege the following four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Bhd. of Carpenters v. Scott, 463 U.S. 825, 828-829 (1983).

23 The second of these four elements requires that in addition to 24 identifying a legally protected right, that the Amended Complaint 25 allege that the conspiracy was motivated by "some racial, or 26 21

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perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." 1398, 1402 (9th Cir. 1985). Trerice v. Pedersen, 769 F.2d

"A claim under this section must

allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual Karim-Panahi v. Los Angeles Police In Holgate v. Baldwin,

specificity is insufficient."

Dept., 839 F.2d 621, 626 (9th Cir. 1988).

425 F.3d 671, 676 (9th Cir.2005), the Ninth Circuit explained: The complaint also failed to allege evidence of a conspiracy and an act in furtherance of that conspiracy, which are required elements of a § 1985(3) action ... It is alleged that Newell and others conspired to violate the Holgate's civil rights, but it did not allege that a specific act was committed in furtherance of this conspiracy ... While Rule 8(a)(2) does not require plaintiffs to lay out in detail the facts upon which their claims are based, it does require plaintiffs to provide `a short and plain statement of the claim' to give the defendants fair notice of what the claim is and the grounds upon which it is based. Defendants argue that the Complaint fails to allege that Defendants agreed among themselves to deprive Plaintiff of equal protection of the laws and fails to allege any facts to support his conclusion that Plaintiff's detention and arrest were motivated by Plaintiff's national origin. Plaintiff responds that he is not alleging that Defendants "started out with a conspiracy." Rather, once Defendants knew of

Plaintiff's status as a law enforcement officer, "they began with the unity of purpose to avoid being held accountable for their wrongful acts." Plaintiff asserts: 22

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The wrongful act was violating Plaintiff's Constitutional right to be free from unreasonable search and seizure because he is Hispanic. When Defendant Wilkin put Plaintiff under arrest for DUI, without conducting a field sobriety test or any evidence to support the arrest, Defendants Rodriguez and Long became responsible for failing to act. Normally, that failure to act would go officially unnoticed and unpunished but Plaintiff's position in law enforcement made that less likely. Plaintiff was initially subjected to the bullying that crossed the line into unlawfulness because he is Hispanic; he would not have been treated in that manner under those circumstances had he been Caucasian. Once Defendant Officers had Rascon's badge, they all knew they had gone too far and that Rascon knew it as well. So they called their sergeant. Unfortunately, calling the sergeant did not cure the problem. Sgt. Hustedde knew the officers had intentionally violated Rascon's rights and that his detention and arrest was illegal. Defendant Hustedde admitted Rascon had violated no law yet did not release him. Hustedde perpetuated the underlying violation and in so doing, becomes an accomplice after the fact. Like his subordinates, Hustedde called for help because it was obvious the [sic] Rascon's rights had been violated. In other words, like the Defendant Officers, Hustedde is hoping Lt. Salazar would find a way out. Despite nearly half an hour of discussions at the scene, Salazar could not find a way and ultimately, to his credit, released Plaintiff. Plaintiff is sure the defense will have other explanations for the events, however, at this stage, the facts must be construed in the light most favorable to Plaintiff. Plaintiff can construe the facts, as above indicated, in a manner which supports his contentions of racial discrimination, harassment and conspiracy. Accepting as true that Plaintiff's race caused his disparate treatment, detention and arrest, Plaintiff's allegations that the 23

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Defendants conspired and combined to falsely arrest and continue to unlawfully detain Plaintiff due to his ethnicity is sufficient for a Section 1985(3) conspiracy. Defendants' motion to dismiss on this ground is DENIED. D. THIRD CLAIM FOR RELIEF.

Defendants Rodriguez, Hustedde and Salazar move to dismiss the Third Claim for Relief on the ground that Plaintiff has failed to allege compliance with the California Government Tort Claims Act. As Plaintiff points out, however, the Third Claim for Relief is based on 42 U.S.C. § 1986: Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refused so to do, is such wrongful act be committed, shall be liable to the party injured ... for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented .... The California Government Tort Claims Act does not apply to actions brought under the federal civil rights acts. Williams v. Horvath, 16 Cal.3d 834 (1976). Defendants' motion to dismiss the Third Claim for Relief on this ground is DENIED. Defendants Rodriguez, Hustedde and Salazar move to dismiss the Third Claim for Relief on the ground that insufficient facts are alleged to support a claim of breach of statutory duty. Defendants assert that Defendant Rodriguez asked Plaintiff to 24 See

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exit his vehicle and than turned the investigation over to Defendants Long and Wilkin because Defendant Rodriguez was involved in another traffic stop; that Defendant Hustedde arrived after Plaintiff's detention and arrest and, after questioning the officers and Plaintiff, summoned Defendant Salazar; Defendant Salazar arrived on the scene at the request of Defendant Hustedde and, after questioning the officers and Plaintiff, released Plaintiff. This ignores that Defendant Rodriguez was the catalyst by falsely reporting to fellow officers that Plaintiff had interfered with her work. Plaintiff responds that the breach of statutory duty is the failure or refusal to prevent the commission of the alleged conspiracy: Defendant Rodriguez was in a position to prevent Defendant Wilkin from arresting Plaintiff when there was no probable cause; Defendant Hustedde was in a position to stop the conspiracy from proceeding by stopping the continued detention very soon after Rascon was placed in the patrol car; and, Defendant Salazar could have stopped it when Hustedde brief [sic] him. Defendants reply that, because the Complaint fails to adequately allege a claim for conspiracy in violation of Section 1985(3), Plaintiff's Section 1986 claim necessarily fails. See

Sanchez v. City of Santa Ana, 936 F.2d 1027, 1040 (9th Cir.1990), cert. denied, 502 U.S. 957 (1991). Because Plaintiff has adequately alleged a Section 1985(3) conspiracy against the moving Defendants, the motion to dismiss 25

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on this ground is DENIED. CONCLUSION For the reasons stated: 1. 2. Defendants' motion to dismiss is DENIED; Defendants shall file an Answer to the Complaint within

20 days of the filing date of this Memorandum Decision and Order. IT IS SO ORDERED. Dated: 668554 January 20, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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