Gibbs v. California Department of Fish and Game et al

Filing 73

ORDER signed by District Judge Kimberly J. Mueller on 9/30/2016 NOT ADOPTING 67 Findings and Recommendations. The matter is REFERRED back to the magistrate judge for further proceedings consistent with this Order. (Jackson, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT ALAN GIBBS,
Plaintiff,

12
13
14

No. 2:13-cv-2631 KJM-CMK

v.

ORDER

BOYD, et. al.,
Defendants.

15
16
17

This matter is before the court on a review of the magistrate judge’s findings and

18
19

recommendations. Plaintiff, who is proceeding pro se, filed this civil rights action on December 18,

20

2013, seeking relief under 42 U.S.C. § 1983. ECF No. 1. The matter was referred to a United States

21

magistrate judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On December 18,

22

2015, defendant Brian Boyd and defendant DeWayne Little (collectively, “defendants”) filed a

23

motion for summary judgment with the magistrate judge, arguing plaintiff’s arrest and the entry into

24

his home was not a Fourth Amendment violation, as a matter of law. ECF No. 43.1 Plaintiff filed

25

no opposition. On September 9, 2016, the magistrate judge filed the pending findings and

26
27
28

1

Findings and recommendations on a separate motion for summary judgment filed by other
defendants in this action are pending before this court. ECF No. 52.

1

1

recommendations in which he recommends granting defendants’ motion. ECF No. 67. The findings

2

and recommendations were served on the parties, with a notice that any objections to the findings

3

and recommendations must be filed within fourteen days. On September 19, 2016, plaintiff filed

4

timely objections, which brought the matter before this court. In accordance with 28 U.S.C.

5

§ 636(b)(1)(C) and Local Rule 304, this court conducted a de novo review of the case. For the reasons

6

discussed below, the court declines to adopt the findings and recommendations and refers the matter

7

back to the magistrate judge for further analysis.

8
9
10

I.

BACKGROUND
A. Service of Defendants’ Motion for Summary Judgment
In plaintiff’s objections to the magistrate judge’s findings and recommendations,

11

plaintiff contends he was not properly served with defendants’ motion for summary judgment.

12

Defendants’ motion is accompanied by a certificate of service attesting plaintiff was served with the

13

motion on December 18, 2015 at P.O. Box 686, Shasta, California, which plaintiff acknowledges was

14

his address of record at the time. The findings and recommendations correctly conclude defendants

15

properly served the motion on plaintiff’s address of record, though the findings and recommendations

16

themselves recite an incorrect address. See ECF No. 1 at 2. Thus, contrary to plaintiff’s assertion and

17

despite the error in the findings and recommendations, defendants’ motion was properly served. The

18

court thus turns to the magistrate judge’s findings and recommendations on the substance of

19

defendants’ motion.

20
21

B. Relevant Factual Background
The facts the magistrate judge’s findings and recommendations rely on are

22

incomplete. The court here reviews in summary fashion the key facts it has gleaned from the

23

plaintiff’s complaint, interrogatory responses in the record, defendants’ motion for summary

24

judgment and attached exhibits, and plaintiff’s objections to the findings and recommendations.

25

On December, 23, 2012, plaintiff’s car was stuck in snow on the highway so he called

26

the Shasta Sherriff’s Department for help. Deputy Edwards and Sgt. Jackson responded and found

27

plaintiff walking down the highway with a shotgun. According to Deputy Edwards’ report, plaintiff

28

seemed mentally unstable and angry. After dropping plaintiff off at a Motel 6 (as plaintiff requested),

2

1

Deputy Edwards took plaintiff’s shotgun for safekeeping, over plaintiff’s objection. Deputy Edwards

2

later ran plaintiff’s criminal background using the standardized database known as CLETS and saw

3

the database reflected plaintiff had a prior felony conviction, which meant plaintiff had been a felon

4

in possession of a weapon; a violation of California law.
Deputy Edwards filed a report with the District Attorney, who then filed criminal

5
6

charges against plaintiff for being a felon in possession of a weapon, and a warrant was issued for his

7

arrest. Within days of the seizure of his gun, plaintiff informed Sgt. Jackson and employees at the

8

District Attorney’s office that plaintiff did not have a felony on his record; the conviction at issue was

9

a “wobbler” that had been reduced to a misdemeanor. Plaintiff claims he faxed over documents that

10

prove his conviction was a misdemeanor, but Sgt. Jackson contends the documents were unclear.
More than three months later, on March 8, 2013, Fish and Game Wardens Boyd and

11
12

Little executed the Shasta County warrant at plaintiff’s home and arrested him. Little and Boyd

13

initially sought to contact plaintiff about a complaint that he was involved in “illegal streambed

14

alteration,” but then discovered the warrant for his arrest and chose to execute it. After his arrest,

15

plaintiff spent three days in jail and then posted bail. The felon in possession charge was dropped at

16

arraignment. Plaintiff now alleges Sgt. Jackson, Deputy Edwards, Wardens Boyd and Little, and the

17

Shasta County Sheriff’s Department violated his constitutional rights.

18

II.

REVIEW OF THE FINDINGS AND RECOMMENDATIONS
This court conducted a de novo review of the case, as required under 28 U.S.C.

19
20

§ 636(b)(1)(C) and Local Rule 304. Having carefully reviewed the entire file, the court finds the

21

magistrate judge’s findings and recommendations do not provide sufficient analysis for this court to

22

conclude they survive the required review.
Plaintiff did not file an opposition to the motion for summary judgment. The findings

23
24

and recommendations are therefore based on portions of plaintiff’s verified complaint and evidence

25

defendants provided.2 In framing plaintiff’s claims, the findings and recommendations do not

26
27
28

2

Plaintiff’s complaint is signed under penalty of perjury. ECF No. 1 at 2. Therefore, the
complaint “may be used as an opposing affidavit” on this summary judgment motion to the extent it
is “based on personal knowledge and set[s] forth specific facts admissible in evidence.” Schroeder v.
McDonald, 55 F.3d 454, 460 (9th Cir. 1995).

3

1

adequately incorporate relevant allegations from plaintiff’s complaint, and consequently provide an

2

incomplete analysis. The findings and recommendations summarily conclude plaintiff’s claims are

3

based on an unlawful arrest and search of his home, and then go on to conclude the arrest was proper

4

because it was done in reliance on a “facially valid warrant.” However, the findings and

5

recommendations omit relevant parts of plaintiff’s complaint that cast doubt on the facial validity of

6

the warrant and the reasonableness of defendants’ reliance on it. On page four of the complaint,

7

plaintiff asserts he was charged with being a felon in possession of a gun, even though he was not a

8

felon when he possessed the gun. This invalid charge then led to the issuance of an arrest warrant for

9

a crime plaintiff did not commit. Plaintiff outlines his efforts to communicate the error to both the

10

Shasta Sheriff’s Department and the District Attorney’s office. The record also demonstrates there

11

was a three month lapse between the issuance of this arrest warrant and its execution, during which

12

the invalid basis for the warrant was never addressed, despite plaintiff’s efforts. Lastly, the record

13

shows plaintiff’s “felon in possession” charge was dropped at arraignment.

14

Based on these facts, the court finds there may be a triable issue over the validity of

15

plaintiff’s arrest warrant and the reasonableness of plaintiff’s arrest. At a minimum, the question

16

requires further analysis to properly resolve defendant’s motion. Additionally, Warden Boyd and

17

Warden Little’s claim of additional reasons for entering plaintiff’s property, independent of the arrest

18

warrant, does not merit short-circuiting the analysis. Accordingly, the court refers the matter back to

19

the magistrate judge for further analysis and explanation.

20

Furthermore, despite plaintiff’s failure to timely oppose defendants’ motion for

21

summary judgment, the court exercises its discretion to grant plaintiff additional time to do so. See

22

Fed. R. Civ. P. 56(e) (“if a party fails to properly support an assertion of fact or fails to properly

23

address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an

24

opportunity to properly support or address the fact . . .; or (4) issue any other appropriate order.”) In

25

this circuit, courts extend leniency towards pro se litigants that violate technical or procedural rules.

26

See e.g., Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); Draper v. Coombs, 792 F.2d 915, 924

27

(9th Cir.1986). Thus, in the interest of justice, and considering plaintiff’s pro se status, the court

28

grants plaintiff an additional thirty (30) days to file an opposition to defendants’ motion, and to

4

1

include relevant evidence. Defendants will then have seven (7) days to file a reply to plaintiff’s

2

opposition.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. The findings and recommendations filed September 9, 2016, are not adopted; and

5

2. The matter is referred back to the magistrate judge for further proceedings consistent with

6
7
8

this Order.
3. This Order resolves ECF No. 67.
DATED: September 30, 2016.

9
10
11

UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5