Gardner v. California Highway Patrol et al

Filing 82

ORDER signed by Judge John A. Mendez on 11/16/15 ORDERING for the reasons set forth above, the Court DENIES McCullough's Motion for Summary Judgment. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DREW GARDNER,

12

15
16
17
18

2:14-cv-02730 JAM-CMK

Plaintiff,

13
14

No.

v.
CALIFORNIA HIGHWAY PATROL;
CALIFORNIA HIGHWAY PATROL
OFFICER J.J. FISCHER; TEHAMA
COUNTY SHERIFF’S DEPARTMENT;
TEHAMA COUNTY SHERIFF’S
DEPARTMENT DEPUTY
INVESTIGATOR ED McCULLOUGH;
KENNETH MILLER; and DOES
1 - 50,

19

ORDER DENYING DEFENDANT ED
MCCULLOUGH’S MOTION FOR SUMMARY
JUDGMENT

Defendants.

20
21

Defendant Tehama County Sheriff’s Department Deputy

22

Investigator Ed McCullough (“McCullough”) filed a Motion for

23

Reconsideration or, in the Alternative, a Motion for Summary

24

Judgment (Doc. #58) (“the current Motion”). 1

25

denied McCullough’s request for reconsideration and now turns to

26

his alternative request for summary judgment in his favor.

The Court has

27
1

28

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g).
1

1

I.

FACTUAL AND PROCEDURAL BACKGROUND

2

In support of the current motion, McCullough submitted a

3

Statement of Undisputed Facts (Doc. #58-1) to which Plaintiff

4

responded (Doc. #60).

5

McCullough are in fact undisputed.

6

Separate Statement of Disputed Material Facts (Doc. #61) to which

7

McCullough responded (Doc. #65-1).

8

five of the facts submitted by Plaintiff, and although he does

9

dispute the remaining facts, he acknowledges that the Court must

Many of the underlying facts submitted by
Plaintiff submitted a

McCullough does not dispute

10

take them as true for the purposes of the current motion.

11

McCullough urges the Court to disregard those facts as immaterial

12

to the Fourteenth Amendment claim at issue in the current motion.

13

Below is a brief summary of the relevant facts that the Court

14

takes as true for the purposes of the current motion only.

15

On January 2, 2014, Plaintiff was riding as a passenger in a

16

Jeep Wrangler that had been reported stolen.

17

Patrol (“CHP”) Officer J.J. Fischer (“Fischer”) apprehended

18

Plaintiff and took him into custody.

19

was booked into Tehama County Jail (“the Jail”).

California Highway

Soon thereafter, Plaintiff

20

Following Plaintiff’s arrest, Fischer wrote a Patrol Report.

21

In his report, Fischer wrote that, during Plaintiff’s booking, he

22

had confiscated a “clear white baggie with a white crystalline

23

substance” - which tested positive for methamphetamine – from

24

Plaintiff’s jacket, as well as a concealed hunting knife.

25

Plaintiff alleges that neither of these statements was true.

26

Plaintiff was charged with (1) unlawful driving or taking of a

27

vehicle; (2) receiving stolen property – motor vehicle;

28
2

1

(3) driving under the influence; (4) bringing contraband into the

2

jail; (5) possession of a controlled substance; and (6) carrying

3

a dirk or dagger.

4

the Court ordered him detained on $315,000 bail.

5

Plaintiff was arraigned on these charges, and

On January 3, 2014, the Shasta County Sheriff’s Office

6

(“Shasta SO”) requested an “agency assist” from the Tehama County

7

Sherriff’s Office (“Tehama SO”) regarding the incident.

8

McCullough was tasked with conducting an investigation of this

9

incident.

McCullough interviewed Plaintiff at the Jail.

10

Plaintiff provided McCullough with a number of leads, and

11

McCullough told Plaintiff that he would report back on his

12

findings and adjust the criminal charges against Plaintiff if

13

warranted.

14

McCullough discovered evidence exculpating Plaintiff of the

15

charges related to the theft and driving of the Jeep Wrangler

16

(“the vehicle charges”).

As a result of his subsequent investigation,

17

Upon discovering the exculpatory evidence, McCullough

18

attempted to contact the point person at the Shasta SO, Deputy

19

Meeker (“Meeker”), but was told Meeker was not on duty.

20

January 9th or 10th, McCullough wrote an investigation report

21

summarizing his findings (“the Report”).

22

the Report to the “assigned Sergeant” for approval.

23

21, McCullough discovered that the Sergeant had not yet approved

24

or finalized the Report and immediately requested and received

25

such approval.

26

to a detective at the Shasta SO later that day.

27

told the evidence and the Report would be forwarded to Meeker.

28

///

On

McCullough forwarded
On January

McCullough delivered the evidence and the Report

3

McCullough was

1

During this time and while still detained at the Jail,

2

Plaintiff made repeated attempts to contact McCullough, through

3

written requests for interviews and phone calls.

4

submitted his third written request directly to an officer at the

5

Jail who told him he would either personally hand it to

6

McCullough or put it directly into McCullough’s box.

7

also enlisted his mother, who attempted to reach McCullough on

8

her own and left numerous voicemails for him.

9

responded to either Plaintiff or his mother.

10

Plaintiff

Plaintiff

McCullough never

On March 12, Tehama County Deputy District Attorney James

11

Waugh (“the District Attorney”) called McCullough regarding

12

Plaintiff’s case.

13

Report up to that point.

14

Report later that day.

15

dismissed the vehicle charges.

16

exculpatory evidence regarding the remaining charges was

17

discovered by an official at the Jail at the urging of Plaintiff,

18

Plaintiff was released.

19

The District Attorney had not received the
McCullough delivered a copy of the
On March 17, the District Attorney
On April 3, after additional

On March 30, 2015, Plaintiff filed the First Amended

20

Complaint (“FAC”) (Doc. #33) alleging fourteen causes of action

21

against various defendants.

22

was a claim brought pursuant to 42 U.S.C. § 1983 (“§1983”)

23

alleging McCullough violated Plaintiff’s Fourteenth Amendment due

24

process rights.

25

#36) the claims brought against him in the FAC.

26

granted in part and denied in part (Doc. #45) McCullough’s

27

motion.

28

stated a claim for violation of his substantive due process

Included therein, and relevant here,

McCullough brought a motion to dismiss (Doc.
The Court

Relevant here, the Court found Plaintiff adequately

4

1

rights under §1983 against McCullough and that McCullough was not

2

entitled to qualified immunity on the claim.

3

the motion without leave to amend as to Plaintiff’s claim that

4

his procedural due process rights were also violated.

5

The Court granted

The Third Amended Complaint (“TAC”) (Doc. #52) was

6

subsequently filed and included the same substantive due process

7

claim against McCullough, among others. 2

8

current motion first requesting the Court to reconsider its Order

9

denying the Motion to Dismiss the substantive due process claim

McCullough brought the

10

on qualified immunity grounds.

11

good cause for reconsidering its previous Order and denied that

12

portion of the current motion (Doc. #70).

13

the remaining portion of the current motion in which McCullough

14

seeks summary judgment in his favor on the first cause of action

15

in the TAC for violation of Plaintiff’s substantive due process

16

rights. The Court has included in its consideration of this

17

motion McCullough’s Statement of Recent Decision and the case

18

referenced therein (Doc.#81).

The Court found there was not

The Court now takes up

19
20

II.

21

OPINION

In the current motion, McCullough contends the undisputed

22

material facts demonstrate he is entitled to qualified immunity

23

with regard to Plaintiff’s first cause of action in the TAC,

24

which alleges a violation of his Fourteenth Amendment substantive

25

due process right, and, therefore, the Court should grant summary

26

2

27
28

A Second Amended Complaint (Doc. #46) was filed, but the
parties stipulated to amendment (Doc. #51) to correct various
errors shortly thereafter. No relevant changes were made in the
TAC.
5

1

judgment in McCullough’s favor.

2

As discussed in the Court’s earlier Order, in Tatum v.

3

Moody, 768 F.3d 806, 814-15 (9th Cir. 2014) (“Tatum”), the Ninth

4

Circuit held that a due process violation may occur when an

5

individual is subject to “prolonged detention when the police,

6

with deliberate indifference to, or in the face of a perceived

7

risk that, their actions will violate the plaintiff’s right to be

8

free of unjustified pretrial detention, withhold from the

9

prosecutors information strongly indicative of his innocence[.]”

10

The court placed limitations on this constitutional rule,

11

however, restricting it to “detentions of (1) unusual length,

12

(2) caused by the investigating officers’ failure to disclose

13

highly significant exculpatory evidence to prosecutors, and

14

(3) due to conduct that is culpable in that the officers

15

understood the risks to the plaintiff’s rights from withholding

16

the information or were completely indifferent to those risks.”

17

Id. at 819-20.

18

the analysis has two prongs: (1) whether the official violated

19

the plaintiff's constitutional rights, and (2) whether the right

20

violated was clearly established at the time of the official's

21

conduct.

22

2015).

23

When a defense of qualified immunity is asserted,

Jones v. Cnty. of Los Angeles, 802 F.3d 990 (9th Cir.

Although the Court previously rejected McCullough’s

24

qualified immunity defense, he now contends the undisputed facts

25

establish that the key allegations in the FAC and the TAC are

26

incomplete and incorrect.

27

even if qualified immunity was not established based on the

28

factual circumstances alleged in the FAC, the facts now before

McCullough essentially argues that

6

1

the Court are so clear that there exists no genuine issue of

2

material fact such that he is entitled to qualified immunity on

3

Plaintiff’s due process claim.

4

The Court disagrees.

McCullough argues that he timely completed and submitted the

5

Report.

When he discovered that the Report was not approved, he

6

timely took steps to get that approval and deliver it to the

7

Shasta SO.

8

Shasta SO, or directly with Meeker, or to deliver the Report

9

directly to the District Attorney is of no consequence because he

McCullough argues his failure to follow up with the

10

“reasonably believed that either the Shasta SO or the CHP would

11

timely provide a copy of that report to the District Attorney.”

12

Under such circumstances, McCullough argues his conduct was

13

reasonable and appropriate, and therefore did not violate

14

Plaintiff’s due process rights.

15

However, based on the evidence put forth by Plaintiff, there

16

was strong reason for McCullough to believe that a copy of the

17

Report was not timely provided to the District Attorney.

18

is evidence that numerous attempts were made by Plaintiff and his

19

mother to contact McCullough to follow up on the matter,

20

including interview requests that jail officials said would be

21

relayed directly to McCullough and voicemails left for McCullough

22

by Plaintiff’s mother.

23

inferences therefrom in the manner most favorable to Plaintiff,

24

McCullough was on notice that Plaintiff remained detained in the

25

Jail and should have known that the Report and the exculpatory

26

evidence discovered by McCullough did not make it into the hands

27

of the proper authority.

28

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

There

Viewing this evidence and drawing

See Matsushita Elec. Indus. Co. v.

7

1

There is no evidence that McCullough ever made direct

2

contact with Meeker regarding the exculpatory findings or ensured

3

that the Report was received by him.

4

CHP would timely provide the Report to the District Attorney,

5

McCullough directly submits that when he contacted the CHP, a

6

staff person told McCullough that they “did not want to receive a

7

copy of the report.”

8

Plaintiff, the evidence could support a jury finding that

9

McCullough acted with deliberate indifference to or reckless

As for his belief that the

Taken in the light most favorable to

10

disregard for Plaintiff’s due process rights.

11

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Tatum, at 821.

12

See Anderson v.

McCullough also puts forth a number of arguments that were

13

already considered and rejected by the Court in its previous

14

Order.

15

violation so McCullough’s arguments regarding the pre-condition

16

of a criminal conviction are unpersuasive.

17

remains a genuine issue of material fact as to whether

18

McCullough’s conduct prolonged Plaintiff’s detention in jail.

19

appears undisputed that the receipt of the Report quickly led the

20

District Attorney to drop the vehicle charges, which was then

21

followed by Plaintiff being released from jail a few weeks later.

22

Finally, the issue of whether the constitutional right was

23

“clearly established” was sufficiently discussed in the Court’s

24

previous Order where it found that at the time of the incident

25

“the Ninth Circuit had clearly established the ‘constitutional

26

right to be free from continued [pretrial] detention after it was

27

or should have been known that the detainee was entitled to

28

release.’”

First, Plaintiff’s claim is not based on a Brady

Second, there still

Order at pp. 22-23 (citing Lee v. City of Los
8

It

1

Angeles, 250 F.3d 668, 683 (9th Cir. 2001)).

2

provided to the Court in conjunction with the current motion does

3

not change the nature of the right underlying Plaintiff’s claim.

4

The Court finds the violative nature of McCullough’s particular

5

conduct was clearly established to the “required degree of

6

specificity.”

7

Accordingly, McCullough’s Motion for Summary Judgment is denied.

The evidence

Mullenix v. Luna, 136 S. Ct. 305, 308-09 (2015).

8
9
10
11
12
13

III.

ORDER

For the reasons set forth above, the Court DENIES
McCullough’s Motion for Summary Judgment.
IT IS SO ORDERED.
Dated: November 16, 2015

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9