Martinez et al. v. City of West Sacramento et al.

Filing 69

ORDER signed by District Judge Troy L. Nunley on 2/4/2019 GRANTING United States' 44 Motion to Dismiss as to Plaintiffs' 6th through 14th Claims for Relief in the 1 Complaint and GRANTING IN PART and DENYING IN PART Plaintiffs&# 039; 64 Motion for Leave to File First Amended Complaint. Plaintiffs' motion for leave to amend their allegations against Zwicky is GRANTED as to the 1st, 4th, 5th, 6th, and 7th Claims for Relief as those claims are set forth in the proposed First Amended Complaint (FAC). Plaintiffs' motion for leave to amend their allegations against Zwicky is DENIED without prejudice as to the 2nd, 3rd, and 9th through 18th Claims for Relief as those claims are set forth in the FAC. Zwicky's 43 Motion Dismiss the original Complaint is DENIED as moot. Plaintiffs shall file any further motions to amend their pleading within 30 days of this Order. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SONNY MARTINEZ et al.,

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Plaintiffs,

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v.
CITY OF WEST SACRAMENTO et al.,

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No. 2:16-cv-02566-TLN-EFB

ORDER GRANTING IN PART
PLAINTIFFS’ MOTION FOR LEAVE TO
AMEND AS TO FEDERAL DEFENDANTS

Defendants.

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This matter is before the Court on Plaintiffs Sonny Martinez, Jessica Martinez,

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individually and as guardian ad litem for minors VJM, GRM, ARM, and EVM, and Joann

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Ramirez’s (collectively, “Plaintiffs”) Motion for Leave to File First Amended Complaint. (ECF

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No. 64.) Defendants Dan T. Zwicky and the United States of America (collectively, the “Federal

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Defendants”) filed an opposition. (ECF No. 66.) For the reasons set forth below, the Court

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GRANTS in part and DENIES in part Plaintiffs’ motion as to the Federal Defendants, (ECF No.

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64).

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I.

PROCEDURAL BACKGROUND

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Plaintiffs filed their Complaint on October 27, 2016 against the City of Stockton and its

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Police Department, an individual named Dan T. Zwicky, the City of West Sacramento and

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various of its employees, and an individual named Rafael Altamirano. (ECF No. 1.) The

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Complaint alleges deprivations of Plaintiffs’ constitutional rights as guaranteed by the First,

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Fourth, Eighth, and Fourteenth Amendments to the U.S. Constitution. (ECF No. 1.) The

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Complaint also makes out numerous supplemental claims for relief under the California

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Constitution, the state’s common law of tort, and its statutory law. (ECF No. 1.)

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On February 13, 2017, the United States notified the Court of its substitution in place of

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Zwicky for purposes of all state law tort claims alleged against him, pursuant to provisions of the

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Federal Tort Claims Act codified at 28 U.S.C. § 2679. (ECF No. 37.) This substitution rested on

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the certification by the Chief of the Civil Division of the U.S. Attorney’s Office for the Eastern

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District of California that “defendant Dan T. Zwicky is an employee of the United States and was

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acting in the scope of such employment at the time of the events alleged in the Complaint, and so,

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by operation of law, is entitled to the official immunity of the Federal Tort Claims Act, 28 U.S.C.

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§§ 2671-2680 for all tort claims.” (ECF No. 37 at 3.) Specifically, the U.S. Attorney’s Office

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certified Zwicky as a federal employee because during the events in the Complaint, he was

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assigned as a Task Force Officer on the Federal Bureau of Investigation’s (“FBI”) Safe Streets

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Task Force. (ECF No. 44-1 at 1–2.)

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Following its limited substitution as a defendant, the United States moved to dismiss all

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state law tort claims originally alleged against Zwicky on grounds that the Court lacks subject

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matter jurisdiction to hear those claims as alleged against the United States. (ECF No. 44.)

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Specifically, the United States argued that it has waived sovereign immunity for tort claims only

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to the extent that an administrative claim is first submitted to the appropriate federal agency as

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required by 28 U.S.C. §§ 2401(b) and 2675(a), which did not occur here. (ECF No. 44-1 at 2–3.)

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As evidence that no such administrative claim was filed, the United States submitted a declaration

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from Deborah Crum—the Unit Chief of Discovery Processing Unit I in the FBI’s Office of

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General Counsel—stating that no administrative claims exist in the FBI’s Central Records System
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for Plaintiffs Sonny Martinez or Jessica Martinez. (ECF No. 44-2 at 1–2.)

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Plaintiffs filed an opposition to the United States’ motion to dismiss in which they

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conceded that their failure to comply with administrative claim adjudication procedures would be

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fatal to their “claims covered by the Westfall Act” if the Court were to rule that the United States

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was properly substituted as the defendant for those claims. (ECF No. 54 at 3.) For that reason,

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Plaintiffs used their opposition to “challenge the Attorney General’s course and scope

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certification of Defendant Zwicky under the Westfall Act.” (ECF No. 54 at 1.) To vindicate this

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challenge, Plaintiffs requested “limited discovery and an evidentiary hearing if necessary to

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resolve the factual dispute” about whether Zwicky was properly certified as acting within the

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course of his federal employment during the events giving rise to this litigation. (ECF No. 54 at

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2.) Plaintiffs also set forth ten additional factual allegations in their opposition papers, allegations

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they argue would—if proven—invalidate the United States’ certification that Zwicky was acting

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as a federal employee during the events giving rise to the complaint. (ECF No. 54 at 2–3.)

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The United States filed a reply in support of its motion to dismiss, contending that

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(i) Plaintiffs failed to allege facts sufficient to overcome the presumption of propriety that the

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Court must afford the U.S. Attorney’s Office’s certification of Zwicky as a federal employee, and

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(ii) even if Plaintiffs had alleged sufficient facts to meet their initial evidentiary burden

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challenging this certification, the challenge would still fail because the evidence demonstrates that

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Zwicky was at all relevant times acting within the scope of his federal employment. (ECF No.

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62.) As evidentiary support for this second argument, the United States attached a declaration

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from Zwicky which stated that he has been a sworn federal officer on the FBI’s Stockton Violent

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Gang Safe Streets Task Force since 2014. (ECF No. 62-1.) The United States also attached a

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declaration from a Supervisory Special Agent in the FBI’s Stockton Resident Agency which

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stated that Zwicky’s task force investigated drug trafficking, gangs, and violent crime in the

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Stockton area. (ECF No. 62-2.)

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Separately, Zwicky filed his own motion to dismiss the remaining constitutional tort

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claims alleged against him in the Complaint. (ECF No. 43.) Specifically, Zwicky argued that the

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Complaint’s allegations failed to state a claim that he, through his own individual actions and not
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merely as a member of a group, committed any acts that rise to the level of a constitutional

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violation. (ECF No. 43-1 at 1.) Zwicky also argued that he is entitled to qualified immunity for

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the actions he allegedly committed because he did not “personally engage[] in any actions that

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violated the Constitution.” (ECF No. 43-1 at 3.) Plaintiffs filed an opposition to Zwicky’s

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motion. (ECF No. 53.)

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The separate motions to dismiss filed by the United States, (ECF No. 44), and by Zwicky,

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(ECF No. 43), remain pending before the Court, as does Plaintiffs’ request for an evidentiary

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hearing to challenge the United States’ course-and-scope certification pursuant to the Westfall

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Act, (ECF No. 54). Plaintiffs now request leave to amend their complaint under Federal Rule of

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Civil Procedure (“Rule”) 15(a)(2). (ECF No. 64.) The Federal Defendants filed a joint

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opposition. (ECF No. 66.) The Federal Defendants’ opposition argued that the Court should

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deny Plaintiffs’ request for leave to amend because Plaintiffs unduly delayed amending their

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pleadings, the amended allegations are so implausible as to be made in bad faith, and the

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proposed amendment would prejudice the Federal Defendants. (ECF No. 66 at 1–5.) The

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Federal Defendants’ opposition also argued that allowing amendment would be futile as to the

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state law tort claims originally alleged against Zwicky, because any such amendments would not

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change the fact that the Court lacks subject matter jurisdiction over those claims as brought

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against the United States. (ECF No. 66 at 5.) As to the non-state-law claims that remain against

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Zwicky, the Federal Defendants argued that leave to amend those claims should be denied

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because they are implausible and fail to allege Zwicky’s personal involvement in the

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constitutional violations alleged. (ECF No. 66 at 5–6.)

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II.

STATE TORT CLAIMS ALLEGED AGAINST ZWICKY IN ORIGINAL COMPLAINT
A.

Factual Allegations

Plaintiffs’ Complaint alleges that, as relevant here, the following summary of events
occurred giving rise to the state law tort claims alleged against Zwicky.

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In the evening of October 24, 2015, a thirteen-year-old resident of West Sacramento

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named Alize Valadez was shot while she sat inside her grandmother’s house in West Sacramento.

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(ECF No. 1 ¶ 72.) Over at least the next two days, local and regional news media outlets
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broadcast details of Ms. Valadez’s shooting. (ECF No. 1 ¶¶ 110, 119.) During this same period,

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Defendant Rafael Altamirano, who was a convicted felon acting as a paid informant, (ECF No. 1

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¶¶ 18, 32–39), and who interacted with known gangs, (ECF No. 1 ¶¶ 48, 51), unsuccessfully

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attempted numerous times to contact Plaintiff Sonny Martinez via cellular phone, (ECF No. 1

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¶¶ 95, 111). Zwicky, who according to the Complaint was an employee of the City of Stockton’s

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Police Department, (ECF No. 1 ¶ 16), on October 26 spoke both with Altamirano and with one or

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more of the Defendants who were employed by the City of West Sacramento, (ECF No. 1

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¶¶ 120–21). Altamirano claimed to Zwicky that Martinez had confessed to shooting Ms.

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Valadez. (ECF No. 1 ¶ 139.13.) On October 26, Altamirano drove to Martinez’s residence and

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asked if Martinez had heard about the shooting of Ms. Valadez, which Martinez denied. (ECF

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No. 1 ¶ 124.) Later that same day, Altamirano made three additional and unsuccessful attempts

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to contact Martinez via cellular phone “at the request of one or more defendants.” (ECF No. 1

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¶¶ 126–28.)

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When West Sacramento law enforcement agents investigating Ms. Valadez’s shooting

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applied for and obtained search warrants targeted at Martinez, they falsely stated in their probable

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cause affidavits that Martinez had called Altamirano to confess to shooting Ms. Valadez and that

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this shooting was gang-related. (ECF No. 1 ¶¶ 133–38.18, 140.1–41.14.) Once these invalid

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warrants were in hand, unspecified “defendants” then took numerous steps to deprive Plaintiffs of

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their First, Fourth, Eighth, and Fourteenth Amendment rights by arresting Sonny Martinez and

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searching and seizing his and his family’s property without probable cause, (ECF No. 1 ¶¶ 144–

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57), using unreasonable force when they executed search warrants at his residence, (ECF No. 1

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¶¶ 158–204), harassing Jessica Martinez once the warrants were executed, (ECF No. 1 ¶¶ 205–

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07), prosecuting Sonny Martinez on the basis of fabricated evidence, (ECF No. 1 ¶¶ 213–31.8,

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266–73), mistreating him while he was being interrogated and refusing to accept exculpatory

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evidence from his cellular phone records, (ECF No. 1 ¶¶ 232–47.5), withholding exculpatory

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information from Sonny Martinez’s defense team and recording his communications while he

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was in custody, (ECF No. 1 ¶¶ 248–55), concealing exculpatory evidence from the state court

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hearing the ensuing criminal case against him, (ECF No. 1 ¶¶ 259–65), initiating a criminal
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prosecution against Sonny Martinez without probable cause and delaying a probable cause

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determination in his criminal case while they harassed his family members for evidence, (ECF

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No. 1 ¶¶ 267–77), and abusing established criminal adjudicatory processes in order to keep him in

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custody for as long as possible, (ECF No. 1 ¶¶ 278–83).

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These and other actions undertaken by again unspecified “defendants” amounted to

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commission of the following torts: false arrest and false imprisonment, (ECF No. 1 ¶¶ 284–90),

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assault, (ECF No. 1 ¶¶ 294–306), battery, (ECF No. 1 ¶¶ 307–14), intentional infliction of

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emotional distress, (ECF No. 1 ¶¶ 315–21), conversion, (ECF No. 1 ¶¶ 322–27), trespass, (ECF

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No. 1 ¶¶ 328–32), causing loss of consortium, (ECF No. 1 ¶¶ 338–42), and general negligence,

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(ECF No. 1 ¶¶ 343–48). Plaintiffs also allege that these actions violated their rights protected by

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article I, section 13 of the California Constitution, (ECF No. 1 ¶¶ 291–93), and by section 52.1 of

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California’s Civil Code, (ECF No. 1 ¶¶ 333–37).

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i.

Zwicky’s Employment

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Additional Factual Allegations Specifically Relating to Scope of

In support of their argument that they are entitled to limited discovery and an evidentiary

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hearing regarding whether Zwicky was acting outside the course and scope of any federal

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employment during the events giving rise to this litigation, Plaintiffs make ten distinct factual

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allegations. (ECF No. 54.)

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Those allegations are, in summary, as follows: (i) the website for the FBI task force to

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which Zwicky was assigned states that the task force’s purpose is to pursue violent gangs; (ii) the

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FBI was not authorized to investigate Ms. Valadez’s shooting; (iii) Ms. Valadez’s shooting took

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place in West Sacramento, not in Stockton where Zwicky’s task force is located; (iv) Martinez

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was prosecuted for the shooting of Ms. Valadez in state court; (v) no evidence exists that Ms.

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Valadez’s shooting was related to gang activity; (vi) Zwicky told prosecutors that his employer

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was the Stockton Police Department and not any federal agency; (vii) Zwicky told prosecutors

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that Altamirano was an informant for the Stockton Police Department; (viii) Zwicky himself said

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that he was not investigating Ms. Valadez’s shooting; (ix) Altamirano is not an informant for the

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FBI; and (x) Altamirano was paid—presumably for the information he provided relating to Ms.
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Valadez’s shooting—by the Stockton Police Department and not by the FBI or the United States.

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(ECF No. 54 at 2–3.)

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B.

Standard of Law

Plaintiffs’ state law tort claims against Zwicky implicate the Federal Tort Claims Act and

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an amendment to that statute known as the Westfall Act, which together govern immunity from

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state law tort claims enjoyed by the United States and its employees.

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i.

Federal Tort Claims Act

“Absent a waiver of sovereign immunity, courts have no subject matter jurisdiction over
cases against the government.” Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003)

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(citing United States v. Mitchell, 463 U.S. 206, 212 (1983)). “The [Federal Tort Claims] Act

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gives federal district courts exclusive jurisdiction over claims against the United States for ‘injury

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or loss of property, or personal injury or death caused by the negligent or wrongful act or

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omission’ of federal employees acting within the scope of their employment.” Levin v. United

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States, 568 U.S. 503, 506 (2013) (quoting 28 U.S.C. § 1346(b)(1)). However, the Act “requires,

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as a prerequisite for federal court jurisdiction, that a claimant first provide written notification of

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the incident giving rise to the injury, accompanied by a claim for money damages to the federal

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agency responsible for the injury.” Munns v. Kerry, 782 F.3d 402, 413 (9th Cir. 2015) (citing 28

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U.S.C. § 2675(a); 28 C.F.R. § 14.2(b); Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir.

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1983)). Where plaintiffs fail to allege or provide evidence that they have exhausted their

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administrative remedies under the Act, “they cannot rely on that statute’s waiver of sovereign

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immunity for jurisdiction.” Id.

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The remedy available to claimants under the Federal Tort Claims Act “is exclusive of any

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other civil action or proceeding for money damages by reason of the same subject matter against

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the employee whose act or omission gave rise to the claim or against the estate of such

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employee.” 28 U.S.C. § 2679(b)(1). The only two exceptions to this exclusivity provision are for

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claims “brought for a violation of the Constitution of the United States” or for claims “brought for

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a violation of a statute of the United States under which such action against an individual is

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otherwise authorized.” Id. § 2679(b)(2).
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ii.

Westfall Act

The Supreme Court in Osborn v. Haley explained the Westfall Act’s substitution
procedure as follows:

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The Federal Employees Liability Reform and Tort Compensation Act of 1988,
commonly known as the Westfall Act, accords federal employees absolute
immunity from common-law tort claims arising out of acts they undertake in the
course of their official duties. When a federal employee is sued for wrongful or
negligent conduct, the Act empowers the Attorney General to certify that the
employee “was acting within the scope of his office or employment at the time of
the incident out of which the claim arose.” Upon the Attorney General’s
certification, the employee is dismissed from the action, and the United States is
substituted as defendant in place of the employee.

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549 U.S. 225, 229–30 (2007) (citations omitted); see also Rodriguez v. Swartz, 899 F.3d 719, 740

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(9th Cir. 2018) (“Under the Westfall Act, if a federal agent commits a tort while acting within the

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scope of his or her employment, then any resulting civil suit must be brought against the United

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States under the FTCA. If the agent is sued individually, the United States is substituted as the

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defendant.” (footnote omitted) (citing 28 U.S.C. § 2679)), petition for cert. filed, 2018 WL

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4348517 (U.S. Sept. 7, 2018) (No. 15-16410). The U.S. Attorney’s Office for the district where a

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civil tort action is brought “is authorized to make the statutory certification that the Federal

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employee was acting within the scope of his office or employment with the Federal Government

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at the time of the incident out of which the suit arose.” 28 C.F.R. § 15.4.

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“The Attorney General’s decision regarding scope of employment certification [under the

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Westfall Act] is conclusive unless challenged. Accordingly, the party seeking review bears the

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burden of presenting evidence and disproving the Attorney General’s decision to grant or deny

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scope of employment certification by a preponderance of the evidence.” Saleh v. Bush, 848 F.3d

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880, 889 (9th Cir. 2017) (alteration in original) (quoting Green v. Hall, 8 F.3d 695, 698 (9th Cir.

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1993)). The party challenging certification under the Westfall Act bears a heavy burden, for

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“where the United States has assumed the benefits and burdens of defending its employee,

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[courts] will not disturb that decision unless presented with substantial evidence requiring [them]

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to do so.” Clamor v. United States, 240 F.3d 1215, 1219 (9th Cir. 2001). To meet this heavy

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burden, the party challenging the Attorney General’s course-and-scope certification must “allege

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sufficient facts that, taken as true, would establish that the defendant’s actions exceeded the scope
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of his employment.” Saleh, 848 F.3d at 889 (quoting Wuterich v. Murtha, 562 F.3d 375, 381

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(D.C. Cir. 2009)). When determining whether sufficient facts have been alleged to take a federal

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employee’s conduct outside the scope of that federal actor’s employment, courts apply the

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principles of respondeat superior of the state in which the allegedly tortious conduct occurred.

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Id. The Court is the proper trier of fact regarding scope of employment questions, id. at 892 n.11,

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and may rule based solely on the written record where all allegations against certification—taken

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as true—still fail to establish by a preponderance of the evidence that the federal employee acted

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outside the scope of employment, id. at 892.

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iii.

Vicarious Liability in California

In California, an employee is within the scope of employment “when in the context of the

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particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair

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to include the loss resulting from it among other costs of the employer’s business.” Nationwide

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Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1163 (9th Cir. 2005) (quoting Farmers Ins. Grp. v.

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Cty. of Santa Clara, 906 P.2d 440, 448 (Cal. 1995)). Stated another way, when considering scope

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of employment questions “the inquiry should be whether the risk was one that may fairly be

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regarded as typical of or broadly incidental to the enterprise undertaken by the employer.” Id.

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(quoting Farmers Ins. Grp., 906 P.2d at 448).

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As this authority makes clear, California’s test for vicarious liability is interpreted broadly

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in favor of finding an employee’s actions to be within the scope of employment. Id. California

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courts have applied this principle particularly expansively in cases involving law enforcement

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officers who are accused of “misuse of official authority.” Mary M. v. City of L.A., 814 P.2d

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1341, 1352 (Cal. 1991). The rationale for this liberal application of respondeat superior in the

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law enforcement context is that “[i]n view of the considerable power and authority that police

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officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that

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authority” because “the risk of . . . tortious conduct is broadly incidental to the enterprise of law

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enforcement.” Id. at 1350.

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A law enforcement officer’s actions are therefore within the course and scope of
employment under California law where the conduct in question occurs while the peace officer is
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on duty as a peace officer, occurs while the peace officer is exercising his authority as a peace

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officer, and results from the use of his authority as a peace officer. Judicial Council of Cal. Civ.

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Jury Instrs. No. 3721 (2019). Hence, courts have held that law enforcement officers may be

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acting within the course and scope of their employment under California law when they misuse

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their official authority as officers to sexually assault detainees. Mary M., 814 P.2d at 1352; Doe

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v. City of San Diego, 35 F. Supp. 3d 1195, 1208–09 (S.D. Cal. 2014). Just as instructively, courts

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have found law enforcement officers to be acting outside the course and scope of their

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employment in cases where the officers’ alleged misconduct did not flow from a misuse of their

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official authority. See, e.g., Hoblitzell v. City of Ione, 2 Cal. Rptr. 3d 8 (Ct. App. 2003) (non-

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uniformed officer not in course of employment when he visited a work site outside of his

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jurisdiction in an unmarked vehicle, falsely identified himself as a building inspector, and

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harassed a contractor at the contractor’s work site at the behest of an acquaintance); Henriksen v.

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City of Rialto, 25 Cal. Rptr. 2d 308, 312–13 (Ct. App. 1993) (off-duty officer not in course of

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employment when he accidentally shot a colleague because “the incident did not occur during

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working hours, was not accomplished by use of [the officer’s] authority as a police officer, [and]

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did not occur in the course of acts that [the officer] was carrying out under his employer’s

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instructions or on his employer’s behalf”).

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iv.

Summary

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As the above authority makes clear, where tort plaintiffs sue a federal employee without

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first complying with the Federal Tort Claims Act’s claim presentation requirements, the fate of

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the tort claims is yoked to the validity of the Attorney General’s scope-of-employment

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certification. If the Attorney General’s certification is upheld under the law of vicarious liability

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in the state where the allegedly tortious conduct occurred, Saleh, 848 F.3d at 889, then the United

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States is thereby substituted as the defendant for those tort claims, Osborn, 549 U.S. at 229–30.

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Once the United States is the defendant, the Federal Tort Claims Act gives the district

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court subject matter jurisdiction over the tort claims only if the plaintiffs allege or provide

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evidence that they exhausted administrative remedies by submitting a written claim for tort

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damages to the appropriate federal agency. Munns, 782 F.3d at 413. If the district court sees no
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such allegation or evidence, it lacks subject matter jurisdiction over the tort causes of action and

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must dismiss them on that basis. See id. (“The plaintiffs have not alleged or provided evidence

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that they have exhausted their administrative remedies under the FTCA, so they cannot rely on

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that statute’s waiver of sovereign immunity for jurisdiction.”).

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C.

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Analysis
i.

Westfall Act Certification

As mandated by Saleh, 848 F.3d at 889, the Court views as initially conclusive the

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certification by the U.S. Attorney’s Office that Zwicky was “an employee of the United States

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and was acting in the scope of such employment at the time of the events alleged in the

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Complaint,” (ECF No. 37 at 3). Because Plaintiffs challenge this certification, it is their burden

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to show by a preponderance of the evidence that Zwicky was not, in fact, acting within the scope

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of his employment as a federally deputized Task Force Officer at the time of the events alleged in

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the Complaint. Saleh, 848 F.3d at 889. This requires Plaintiffs to show that the actions attributed

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to Zwicky were not, under California law, “typical of or broadly incidental to the enterprise” of

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law enforcement in the context of a federally deputized task force. Nationwide Mut. Ins. Co., 408

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F.3d at 1163 (quoting Farmers Ins. Grp., 906 P.2d at 448). As explained below, Plaintiffs have

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not done so.

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The activities allegedly engaged in by Zwicky in the Complaint are foreseeable actions

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taken by a federally deputized law enforcement officer responding to information from a known

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informant relevant to a crime in a neighboring jurisdiction. See Mary M., 814 P.2d at 1352

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(noting the broad applicability of respondeat superior principles when law enforcement officers

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are accused of “misuse of official authority”). It is entirely foreseeable that Zwicky, in his

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capacity as a deputized officer for a federal anti-gang task force, would speak with a gang-

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involved individual like Altamirano and convey to the proper local law enforcement authority

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whatever information was given him by that informant. (ECF No. 1 ¶¶ 30, 48, 51, 120–21,

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139.13.) Communicating intelligence and coordinating efforts across agencies is, in many

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respects, the very essence of law enforcement work in our multi-jurisdictional system. Indeed, to

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find Zwicky’s alleged conduct in the Complaint to be outside the scope of his federal employment
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would require the strained reasoning that it was not “typical of or broadly incidental to the

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enterprise” of federal law enforcement for Zwicky to relay to the West Sacramento Police

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Department whatever information he learned from Altamirano during their conversation the day

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following the shooting of Ms. Valadez. Nationwide Mut. Ins. Co., 408 F.3d at 1163 (quoting

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Farmers Ins. Grp., 906 P.2d at 448); (ECF No. 1 ¶¶ 120–21, 139.13).

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And while it is not permissible for a federally deputized law enforcement officer like

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Zwicky to knowingly contribute false information to probable cause affidavits, the question of

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whether this alleged conduct was proper is not the inquiry currently before the Court. (See ECF

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No. 1 ¶¶ 133–38.18.) The inquiry currently before the Court is whether it is reasonably

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foreseeable that Zwicky would conspire with local law enforcement colleagues to include in

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probable cause affidavits questionable information learned from a gang-involved informant in the

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midst of a tense and highly publicized investigation into the shooting of an innocent girl. See

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Saleh, 848 F.3d at 889; (ECF No. 1 ¶¶ 133–138.18, 139.13). The Court finds that such alleged

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conduct by Zwicky is, in fact, foreseeable under California’s broad application of respondeat

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superior principles. See Mary M., 814 P.2d at 1350 (“The precise circumstances of the [officer’s

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allegedly tortious conduct] need not be anticipated, so long as the risk is one that is reasonably

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foreseeable.”). First, the Complaint contains no allegations that Zwicky’s conduct occurred while

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he was off duty, during a time when he was not exercising his authority as a federal law

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enforcement officer, or in contravention of the FBI’s instructions. See Judicial Council of Cal.

20

Civ. Jury Instrs. No. 3721 (2019); Henriksen, 25 Cal. Rptr. 2d at 312–13. Second, nowhere do

21

Plaintiffs allege facts suggesting that Zwicky’s conduct was motivated by personal animus he or

22

someone close to him may have harbored toward Martinez or anyone else. See Hoblitzell, 2 Cal.

23

Rptr. 3d at 10 (concluding that actions of public employees that occur “outside of their official

24

duties, and for personal reasons” are not within the scope of employment). Hence, even though it

25

may arguably be shown to have been wrongful, “[i]n view of the considerable power and

26

authority that police officers possess, it is neither startling nor unexpected that on occasion an

27

officer will misuse” their authority as Zwicky allegedly did, by conspiring to generate and utilize

28

false information to further a criminal investigation. Mary M., 814 P.2d at 1350; (ECF No. 1 ¶¶
12

1
2

133–138.18, 139.13).
The allegations in Plaintiffs’ request for an evidentiary hearing on the United States’

3

Westfall Act certification fail to overcome the presumption of validity that the Court must afford

4

that certification. Saleh, 848 F.3d at 889. The thrust of these allegations is that Zwicky was

5

outside the scope of his FBI employment when he acted as alleged in the Complaint because the

6

FBI had nothing to do with the investigation into the shooting of Ms. Valadez, there was no

7

evidence the shooting was gang-related, the shooting took place outside of the jurisdiction of

8

Zwicky’s agency, and Zwicky represented at the time that he was working for the Stockton Police

9

Department and not the FBI. (ECF No. 54 at 2–3.) Even accepting these supplemental

10

allegations as true, they fail to show that it was outside his federal employment on an FBI task

11

force for Zwicky to communicate with Altamirano about an unsolved violent crime involving at

12

least one firearm, particularly where Plaintiffs’ own allegations state that Altamirano was a police

13

informant who owed money to the Sureño gang and was involved in drug- and firearm-related

14

activity, (ECF No. 1 ¶¶ 18, 32–51); see also West v. City of Mesa, 708 F. App’x 288, 290 (9th

15

Cir. 2017) (applying Arizona law to uphold Westfall Act certification relating to City of Mesa

16

employee who “was assigned to the FBI’s Joint Terrorism Task Force”). It is foreseeable—

17

arguably, it is advisable—that a federal law enforcement officer tasked with conducting

18

“proactive, coordinated investigations” into “racketeering, drug conspiracy, and firearms

19

violations” in the Stockton area as Zwicky was, (ECF No. 54 at 2), would maintain contact with,

20

interact with, and work with an informant like Altamirano who owed a debt to a violent gang in

21

the Stockton area, (ECF No. 1 ¶ 48), possessed firearms, (ECF No. 1 ¶ 41), and “could be

22

frequently observed sitting in his car in the parking lot of the housing complex where he lives

23

smoking methamphetamine,” (ECF No. 1 ¶ 47). Given that Altamirano was closely linked to

24

precisely the kind of criminality in Stockton that Zwicky was employed by the FBI to combat,

25

(ECF No. 54 at 2), it was “broadly incidental to the enterprise” of his federal employment for

26

Zwicky to speak with Altamirano and communicate what Altamirano told him regarding a violent

27

act perpetrated in a neighboring jurisdiction, Nationwide Mut. Ins. Co., 408 F.3d at 1163 (quoting

28

Farmers Ins. Grp., 906 P.2d at 448); (ECF No. 1 ¶¶ 120–21, 139.13). This is particularly true
13

1

given that the person implicated in that violent act by Altamirano—Sonny Martinez—lived in

2

Stockton during the time encompassed by the Complaint, (ECF No. 1 ¶¶ 24, 55), and had family

3

members who associated with known felons convicted of drug and violent crimes, (ECF No. 1 ¶¶

4

26, 32–40).

5

Given these factual allegations and given his responsibilities as a federal task force officer

6

assigned to “proactive, coordinated investigations,” into drug and firearms crimes, Zwicky

7

arguably would have failed in his federal task force duties had he not participated in an

8

investigation that was based largely on evidence from Altamirano claiming that Martinez

9

perpetrated a violent shooting in a neighboring city. (ECF No. 54 at 2.) Accordingly, pursuant to

10

28 U.S.C. § 2679(d)(1), the United States is substituted as the defendant in this litigation for the

11

following causes of action originally alleged against Defendant Zwicky:

12

1.

Sixth Claim for Relief (False Arrest and Imprisonment);

13

2.

Seventh Claims for Relief (Assault and for violation of article I, section 13 of the
California Constitution);1

14
15

3.

Eighth Claim for Relief (Battery);

16

4.

Ninth Claim for Relief (Intentional Infliction of Emotional Distress);

17

5.

Tenth Claim for Relief (Conversion);

18

6.

Eleventh Claim for Relief (Trespass);

19

7.

Twelfth Claim for Relief (Tom Bane Civil Rights Act, section 52.1 of the
California Civil Code);2

20
21
22
23
24
25
26
27
28

Plaintiffs’ original Complaint contains two claims titled “Seventh Claim for Relief,” one of which is a claim
of common law assault, (ECF No. 1 ¶¶ 294–306), and the other of which is a claim brought for violating Plaintiffs’
right to be free from unreasonable searches and seizures pursuant to article I, section 13 of the California
Constitution, (ECF No. 1 ¶¶ 291–93). Both constitute claims subject to the Federal Tort Claims Act because assault
is a common law tort in California and claims brought to vindicate rights protected by California’s constitution are
covered by the Federal Tort Claims Act. See Papa v. United States, 281 F.3d 1004, 1010 n.20 (9th Cir. 2002)
(construing claim brought for interference with plaintiffs’ rights under the California constitution as an “FTCA
claim[]”).
2
The parties dispute whether the Federal Tort Claims Act applies to Plaintiffs’ claim brought pursuant to the
Tom Bane Civil Rights Act, which is codified as section 52.1 of California’s Civil Code. (ECF No. 54 at 3–4; ECF
No. 55 at 2 (arguing that claim brought under the Bane Act is not a common law claim subject to the Westfall Act);
ECF No. 62 at 8 (arguing that a Bane Act claim against a federal employee fails as a matter of law).) In the Ninth
Circuit, Bane Act claims fall within the purview of the Federal Tort Claims Act. Lu v. Powell, 621 F.3d 944, 949–50
(9th Cir. 2010) (construing Bane Act claim of interference with right to asylum as a “viable tort” claim under Federal
Tort Claims Act).
1

14

1

8.

Thirteenth Claim for Relief (Loss of Consortium); and

2

9.

Fourteenth Claim for Relief (Negligence).

3
4

ii.

Plaintiffs’ Request for Evidentiary Hearing

Given the broad interpretation of vicarious liability under California law as analyzed

5

above, Plaintiffs have not alleged facts showing it is more likely than not that Zwicky was acting

6

outside the scope of his employment as a federal task force officer at the time of the events in the

7

Complaint. See Saleh, 848 F.3d at 889; Nationwide Mut. Ins. Co., 408 F.3d at 1163.

8

Accordingly, there is no need for an evidentiary hearing on this issue because Plaintiffs’ factual

9

allegations regarding Zwicky’s scope of employment, even if proven, would be insufficient to

10

overcome the presumption afforded the certification by the U.S. Attorney’s Office that Zwicky

11

was acting as a federal officer during the events giving rise to the Complaint. See Saleh, 848 F.3d

12

at 892 (“But because the allegations in the operative complaint, taken as true, do not establish that

13

Defendants acted outside the scope of their employment, an evidentiary hearing would be a futile

14

exercise.”).

15

Plaintiffs’ request for an evidentiary hearing regarding the validity of the certification that

16

Defendant Zwicky was acting within the course and scope of his federal employment during the

17

time encompassed by the complaint, (ECF No. 54), is therefore DENIED.

18

iii.

Disposition of State Tort Claims Pursuant to Federal Tort Claims Act

19

Plaintiffs admit they do not allege they have satisfied the administrative exhaustion

20

requirements of the Federal Tort Claims Act. (ECF No. 54 at 3 (“Assuming, arguendo, the Court

21

upholds the certification, Plaintiffs concede the Court is without jurisdiction to hear claims

22

covered by the Westfall Act.”).) Because those administrative requirements are a prerequisite to

23

the Court exercising subject matter jurisdiction over tort claims brought against the United States,

24

see Munns, 782 F.3d at 413, the United States’ Motion to Dismiss, (ECF No. 44), is GRANTED

25

as to the state tort causes of action for which the United States is now the defendant.

26
27
28

III.

STATE TORT CAUSES OF ACTION ALLEGED AGAINST ZWICKY IN PROPOSED
FIRST AMENDED COMPLAINT

Plaintiffs moved for leave to amend the Complaint and attached a proposed First
15

1

Amended Complaint (“FAC”). (ECF No. 64.) The proposed FAC continues to name Zwicky as

2

a defendant against Plaintiffs’ state law tort claims, presumably because when the FAC was filed

3

the Court had not yet ruled on Plaintiffs’ objections to the United States’ substitution as the

4

defendant for purpose of those claims. (ECF No. 64 ¶ 19.) The United States, now validly

5

substituted as the defendant against the state tort claims originally alleged against Zwicky,

6

opposed Plaintiffs’ request for leave to amend their state tort claims on grounds that any

7

amendment would be futile because “[t]he United States has been substituted as defendant in

8

place of TFO Zwicky ‘for all tort causes of action,’” and so “the Court lacks jurisdiction over any

9

such claims against the United States.” (ECF No. 66 at 5.)

10
11
12
13

A.

Factual Allegations

Plaintiffs’ proposed First Amended Complaint would allege that, as relevant here, the
following summary of events occurred giving rise to the claims against Zwicky.
Zwicky was a Stockton police officer who used Altamirano as an informant, (ECF No. 64

14

¶ 54), and who participated in the investigation of the tragic shooting of Ms. Valadez, (ECF No.

15

64 ¶ 19). Following local news broadcasts regarding the shooting of Ms. Valadez in West

16

Sacramento on October 24, 2015, Altamirano on October 26 contacted Zwicky to offer

17

information regarding the shooting. (ECF No. 64 ¶ 102.) Zwicky knew that Altamirano was

18

desperate for money and for leniency in his separately pending criminal actions relating to his

19

involvement with the Sureño gang, (ECF No. 64 ¶¶ 38–39, 53, 103), and also knew that

20

Altamirano was an unreliable informant who had provided inaccurate information to Zwicky in

21

the past. (ECF No. 64 ¶¶ 103–07.) The two met at the Stockton Police Department on October

22

26, at which point Altamirano told Zwicky that Martinez had called Altamirano and confessed to

23

shooting Ms. Valadez, and that Martinez drove a 2006 white Chevrolet Silverado with black

24

stripes on the bottom. (ECF No. 64 ¶ 108.)

25

Zwicky proceeded to contact a member of the West Sacramento Police Department to

26

relay the information he had learned from Altamirano. (ECF No. 64 ¶¶ 116–17.) The West

27

Sacramento Police Department officer who spoke with Zwicky told Zwicky that the shooting of

28

Ms. Valadez may have been a gang-related retaliation against Ms. Valadez’s father. (ECF No. 64
16

1

¶ 118.) At the West Sacramento Police Department’s request, Zwicky began to drive Altamirano

2

to West Sacramento to talk to the officers investigating the shooting of Ms. Valadez, during

3

which trip Zwicky instructed Altamirano to contact Martinez via text message. (ECF No. 64

4

¶¶ 119–20.) When Altamirano’s attempt to contact Martinez went unacknowledged, Zwicky and

5

Altamirano instead drove to Martinez’s residence so that Altamirano could—unsuccessfully, it

6

turned out—attempt to record Martinez admitting to the shooting. (ECF No. 64 ¶¶ 120–24.)

7

Zwicky and Altamirano then completed their drive to West Sacramento, during which they

8

discussed the shooting. (ECF No. 64 ¶ 154.) Meanwhile, still on October 26, West Sacramento

9

police officers received information from an eyewitness to Ms. Valadez’s shooting that identified

10

the shooter’s vehicle as being substantially different from the vehicle Martinez typically drove.

11

(ECF No. 64 ¶¶ 125–53.)

12

When Zwicky and Altamirano arrived at the West Sacramento Police Department

13

headquarters on October 26, they and a host of West Sacramento Police Department officers met

14

while Altamirano’s cellular phone underwent a Cellibrite analysis. (ECF No. 64 ¶¶ 155–57.)

15

This analysis revealed that Martinez did not contact Altamirano by phone following Ms.

16

Valadez’s shooting, meaning he could not have admitted to the shooting as Altamirano claimed.

17

(ECF No. 64 ¶ 158.) Following this initial meeting, Zwicky and the West Sacramento Police

18

Department officers held a second meeting at which they agreed to disregard the truth, as

19

revealed by the Cellibrite analysis, that Martinez never contacted Altamirano to confess to

20

shooting Ms. Valadez. (ECF No. 64 ¶ 162.) At this second meeting, Zwicky and the West

21

Sacramento Police Department officers decided to use Altamirano’s false account of Martinez’s

22

confession to obtain warrants and withhold exculpatory material from Martinez, steps that they

23

hoped would lead to actual evidence that furthered their investigation. (ECF No. 64 ¶¶ 163–66.)

24

Accordingly, at Zwicky’s direction, Altamirano then made numerous attempts to contact

25

Martinez via phone and text message, none of which were successful. (ECF No. 64 ¶¶ 159–61.)

26

Zwicky and the West Sacramento Police Department Officers then recorded a statement from

27

Altamirano, a statement which differed from the account of Martinez’s fabricated confession that

28

Altamirano had initially provided only to Zwicky. (ECF No. 64 ¶ 168.)
17

1

Based in part on the information obtained from Altamirano through Zwicky and on

2

information obtained from Zwicky directly, West Sacramento Police Department officers

3

submitted false probable cause affidavits in applications for warrants to search Martinez’s

4

residence, vehicle, and other property for evidence related to the shooting of Ms. Valadez. (ECF

5

No. 64 ¶¶ 176–200.) They also installed a tracking device on Plaintiffs’ vehicle without a valid

6

warrant authorizing them to do so, (ECF No. 64 ¶¶ 172–74), and falsified reports to cover up this

7

illegal action, (ECF No. 64 ¶ 175). Zwicky and other law enforcement agents from Stockton and

8

West Sacramento then served and executed the improperly obtained warrants, using

9

unconstitutionally excessive force and means. (ECF No. 64 ¶¶ 201–10.) On the basis of invalid

10

warrants, members of the alleged conspiracy—though not Zwicky personally—confined

11

Plaintiffs to their home (and, in Sonny Martinez’s case, to law enforcement custody) while they

12

searched and seized Plaintiffs’ property. (ECF No. 64 ¶¶ 211–42.)

13

Once Martinez was arrested as a suspect in the shooting of Ms. Valadez, the conspirators

14

interrogated him without reading him his Miranda rights and without receiving permission to so

15

interrogate him from Martinez himself or from his attorney. (ECF No. 64 ¶¶ 254–59.) They also

16

repeatedly misled various judicial officers to ensure that Martinez was denied his constitutional

17

right to bail despite the lack of actual evidence tying him to the shooting of Ms. Valadez; Zwicky

18

specifically agreed to falsify evidence and perjure himself by testifying at a probable cause

19

hearing that Altamirano—on whose word the entire case against Martinez at this point rested—

20

was a reliable informant. (ECF No. 64 ¶¶ 260–64, 271–300.) Zwicky further joined with his law

21

enforcement cohorts—which by this point included individuals from the Yolo County District

22

Attorney’s Office—to ensure that Martinez was charged in the shooting of Ms. Valadez and that

23

the preliminary hearing in this criminal case was delayed, all while Zwicky and his fellow

24

conspirators knew Martinez was not the shooter. (ECF No. 64 ¶¶ 301–06.)

25

Plaintiffs claim that based on his alleged conduct as outlined in summary above, Zwicky

26

violated their right under California’s Constitution to be free from unreasonable searches and

27

seizures, (ECF No. 64 ¶¶ 314–15), and that he committed the following California torts: false

28

imprisonment (Tenth Claim for Relief), assault (Eleventh Claim for Relief), battery (Twelfth
18

1

Claim for Relief), intentional infliction of emotional distress (Thirteenth Claim for Relief),

2

conversion (Fourteenth Claim for Relief), and trespass (Fifteenth Claim for Relief). (ECF No. 64

3

¶¶ 316–53.) Plaintiffs’ Sixteenth Claim for Relief is that Zwicky is liable to them on the basis of

4

section 52.1 of California’s Civil Code. (ECF No. 64 ¶¶ 354–55.) Plaintiffs’ Seventeenth Claim

5

for Relief is that Zwicky is liable in tort under a traditional common law negligence theory. (ECF

6

No. 64 ¶¶ 356–60.) Plaintiffs’ Eighteenth Claim for Relief is that Zwicky is liable in tort for the

7

loss of consortium between Sonny Martinez and his wife Jessica Martinez. (ECF No. 64 ¶¶ 361–

8

63.)

9

B.

Standard of Law

10

Granting or denying leave to amend a complaint rests in the sound discretion of the trial

11

court. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (citing Rhoden v. United

12

States, 55 F.3d 428, 432 (9th Cir. 1995)). Under the Federal Rules of Civil Procedure, “a party

13

may amend its pleading only with the opposing party’s written consent or the court’s leave,” and

14

the “court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

15

“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue

16

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies

17

by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance

18

of the amendment, [or] futility of amendment, etc.’” Sonoma Cty. Ass’n of Retired Emps. v.

19

Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (alteration in original) (quoting Foman v.

20

Davis, 371 U.S. 178, 182 (1962)). “Absent prejudice, or a strong showing of any of the

21

remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave

22

to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per

23

curiam) (citing Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997)).

24

Nonetheless, “futility of amendment alone can justify the denial of a motion” for leave to

25

amend. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (citing

26

Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). A proposed amendment is futile

27

where “the amended complaint would also be subject to dismissal.” Steckman v. Hart Brewing,

28

Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (citing Saul v. United States, 928 F.2d 829, 843 (9th
19

1

Cir. 1991)). Leave to amend may also be denied on the grounds of futility where “the pleading

2

could not possibly be cured by the allegation of other facts.” Watison v. Carter, 668 F.3d 1108,

3

1117 (9th Cir. 2012) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). When

4

weighing the factors that govern whether to grant leave to amend, the Court must draw “all

5

inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880

6

(9th Cir. 1999) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)); see

7

also Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (stating that

8

granting leave to amend represents a policy that “is to be applied with extreme liberality”).

9
10

C.

Analysis

For the reasons set forth below, the Court finds that the FAC’s state law claims as alleged

11

against Zwicky would be subject to dismissal on the same grounds upon which the state law

12

claims in the original Complaint were dismissed.

13
14

i.

Westfall Act Certification

Even assuming the facts alleged against Zwicky in the FAC are true, they fail to establish

15

by a preponderance of the evidence that Zwicky was acting outside the course and scope of his

16

federal employment during the time encompassed by the FAC. See Saleh, 848 F.3d at 889. As

17

explained previously, California’s liberal approach in assigning vicarious liability to employers

18

means that Plaintiffs must carry a heavy burden to prove that Zwicky was acting outside the

19

course and scope of his employment as a federal task force officer during the events set forth in

20

the FAC. See Nationwide Mut. Ins. Co., 408 F.3d at 1163 (noting the broad interpretation of

21

respondeat superior law in California that favors finding an employee’s actions to be within the

22

course and scope of employment); Mary M., 814 P.2d at 1350 (explaining that this principle is

23

particularly salient in the context of accusations of police misconduct).

24

Nothing that Plaintiffs newly allege in the FAC is sufficient to meet this threshold because

25

all of Zwicky’s alleged actions constitute foreseeable conduct by a federally deputized law

26

enforcement officer tasked with combating violent and gang-related crime. See Mary M., 814

27

P.2d at 1350 (“The precise circumstances of the [officer’s allegedly tortious conduct] need not be

28

anticipated, so long as the risk is one that is reasonably foreseeable.”). It is foreseeable that
20

1

Zwicky, as a federal law enforcement officer, would speak with a known local informant such as

2

Altamirano to learn information regarding a violent crime perpetrated by a Stockton resident in a

3

neighboring jurisdiction, in this case the shooting of Ms. Valadez in West Sacramento. (ECF No.

4

64 ¶¶ 102–07.) This is particularly true given that Zwicky knew of Altamirano’s involvement

5

with violent gangs in the Stockton area, (ECF No. 64 ¶¶ 38, 53, 103), because Plaintiffs’ own

6

allegations state that the task force to which Zwicky was assigned was charged with investigating

7

violent gangs, (ECF No. 54 at 2). It is also foreseeable that Zwicky would convey whatever

8

information was given him by Altamirano to the proper local law enforcement authority, in this

9

case the West Sacramento Police Department. (ECF No. 64 ¶¶ 116–17.) And when Zwicky

10

learned from his West Sacramento colleagues that they suspected Ms. Valadez’s shooting may

11

have been gang-related, (ECF No. 64 ¶ 118), it was foreseeable that Zwicky would remain

12

involved in the investigation given his task force’s focus on combating gang violence, (ECF No.

13

54 at 2). Accordingly, that Zwicky coordinated with West Sacramento police officers and with

14

Altamirano to try to generate further evidence against Martinez is eminently foreseeable, (ECF

15

No. 64 ¶¶ 119–24, 154–57, 159–61, 168), because Martinez was a Stockton resident implicated in

16

a potentially gang-related shooting that occurred in a different municipality, (ECF No. 64 ¶¶ 58,

17

68), and pursuing violent gangs is what Zwicky was federally deputized to do, (ECF No. 54 at 2).

18

Furthermore, as explained above in the Court’s analysis pertaining to the original

19

Complaint, the subsequent misconduct that Zwicky is accused of engaging in is composed of

20

foreseeable acts of an employee under California’s expansive application of vicarious liability to

21

the law enforcement context. See Mary M., 814 P.2d at 1350 (noting that it is “neither startling

22

nor unexpected that on occasion an officer will misuse” his authority and that such misuse of

23

authority is within the course and scope of law enforcement employment). It is not ethical or

24

permissible for Zwicky to conspire with his West Sacramento counterparts to falsify evidence

25

underlying a warrant application, (see ECF No. 64 ¶¶ 162, 176, 186–89), but such conduct would

26

not be outside the course of Zwicky’s federal employment unless Plaintiffs pointed to facts that

27

he did so, for instance, unconnected to the authority he had as a law enforcement officer or for his

28

own personal gain, see Hoblitzell, 2 Cal. Rptr. 3d at 15; Henriksen, 25 Cal. Rptr. 2d at 312–13.
21

1

But there are no allegations in the FAC or in Plaintiffs’ challenge to the U.S. Attorney’s course-

2

and-scope certification suggesting as much. (ECF Nos. 54, 64.)

3

Indeed, lying in a probable cause affidavit is a reasonably foreseeable misuse of federal

4

law enforcement authority because attesting to probable cause is part and parcel of the daily

5

activity of law enforcement aimed at “sustained, proactive, coordinated investigations to obtain

6

prosecutions” for “violations such as racketeering, drug conspiracy, and firearms violations.”

7

(ECF No. 54 at 2.) The same is true of the allegations that Zwicky contributed to the excessively

8

forceful manner by which the search warrants targeted at Martinez were executed, (ECF No. 64

9

¶¶ 201–49), that Zwicky agreed to perjure himself at Martinez’s probable cause hearing, (ECF

10

No. 64 ¶ 299), and that Zwicky played a part in abusing the prosecutorial process to ensure that

11

Martinez was detained, (ECF No. 64 ¶¶ 301–07). Federally deputized law enforcement officers

12

regularly execute warrants, testify in court, and work directly with prosecutors, particularly

13

where, as Plaintiffs’ own allegations demonstrate in this case, those officers are tasked with

14

“obtain[ing] prosecutions.” (ECF No. 54 at 2.) That Zwicky allegedly engaged in all these

15

activities relating to Martinez without legal justification is still foreseeable because doing so is

16

“broadly incidental to the enterprise of law enforcement” even if it is unjustified. Mary M., 814

17

P.2d at 1350.

18

Accordingly, Plaintiffs have not alleged facts sufficient to rebut the certification by the

19

U.S. Attorney’s Office that Zwicky was “acting in the scope of [federal] employment at the time

20

of the events alleged in the Complaint.” (ECF No. 37 at 3.)

21
22

ii.

Disposition of State Tort Claims Pursuant to Federal Tort Claims Act

Because Zwicky’s actions as alleged in the FAC are insufficient to rebut the certification

23

that he was acting in the course and scope of his federal employment during the time

24

encompassed by that pleading, the state law tort claims alleged against him must be brought

25

against the United States. Osborn, 549 U.S. at 229–30. The FAC contains no allegations that

26

Plaintiffs have satisfied the administrative exhaustion requirements of the Federal Tort Claims

27

Act, which they must do to maintain suit against the United States. Furthermore, Plaintiffs prior

28

to filing the FAC, admitted they have not done so. (ECF No. 54 at 3 (“Assuming, arguendo, the
22

1

Court upholds the certification, Plaintiffs concede the Court is without jurisdiction to hear claims

2

covered by the Westfall Act.”).) Those administrative requirements are a prerequisite to the

3

Court exercising subject matter jurisdiction over tort claims brought against the United States,

4

meaning that the proposed amendment to those claims as embodied in the FAC would be futile

5

because “the amended complaint would also be subject to dismissal.” Steckman, 143 F.3d at

6

1298; see also Munns, 782 F.3d at 413 (“The plaintiffs have not alleged or provided evidence that

7

they have exhausted their administrative remedies under the FTCA, so they cannot rely on that

8

statute’s waiver of sovereign immunity for jurisdiction.”). Accordingly, the Court DENIES

9

Plaintiffs’ request for leave to amend their Ninth through Eighteenth Claims for Relief in the

10
11

manner alleged against Zwicky in the FAC, (ECF No. 64).
Notwithstanding the above, the Court is not convinced that “the pleading could not

12

possibly be cured by the allegation of other facts.” Watison, 668 F.3d at 1117. While unlikely

13

given the broad application of the law of respondeat superior in California, it is nonetheless

14

possible that Plaintiffs could allege further facts that would overcome the United States’ Westfall

15

Act certification by demonstrating that Zwicky was acting outside the scope of his federal

16

employment during the time encompassed by this case’s pleadings. Id. Furthermore, Plaintiffs

17

could allege further facts demonstrating their compliance with the Federal Tort Claims Act’s

18

administrative exhaustion requirements. See 28 U.S.C. §§ 2401(b), 2679(d)(5). Accordingly, the

19

Court’s denial of leave to amend the state tort claims alleged against the United States is without

20

prejudice to Plaintiffs bringing a subsequent motion for leave to amend the state tort claims

21

originally alleged against Zwicky.

22

IV.

CONSTITUTIONAL CAUSES OF ACTION ALLEGED AGAINST ZWICKY

23

The Court having disposed of the state causes of action originally alleged against Zwicky,

24

the only claims remaining against him that Plaintiffs seek leave to amend are those alleging that

25

Zwicky violated Plaintiffs’ rights as protected by the Constitution of the United States. (ECF No.

26

64 ¶¶ 170–309.)

27
28

A.

Undue Delay

Zwicky argues that Plaintiffs should not be allowed to amend the Complaint because they
23

1

unduly delayed doing so. (ECF No. 66 at 2–3.) Specifically, Zwicky points out that more than a

2

year elapsed between the filing of the Complaint and the filing of the FAC, a time period which

3

Plaintiffs have not justified and which “stands in stark contrast to their previous litigation

4

positions.” (ECF No. 66 at 2–3.)

5

In evaluating undue delay, the Court inquires “whether the moving party knew or should

6

have known the facts and theories raised by the amendment in the original pleading.”

7

AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006) (quoting

8

Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990)). “Undue delay by itself, however,

9

is insufficient to justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 758 (9th

10

Cir. 1999). As explained below, for Plaintiffs’ First, Fourth, Fifth, Sixth, and Seventh Claims for

11

Relief, Zwicky has not identified “strong evidence” of bad faith, prejudice, or futility that would

12

justify denying Plaintiffs leave to file their FAC. Sonoma Cty. Ass’n of Retired Emps., 708 F.3d

13

at 1117. Accordingly, there is no need for the Court to analyze whether Plaintiffs unduly delayed

14

moving to amend these constitutional causes of action against Zwicky because even if they had,

15

this alone would be insufficient to justify denying Plaintiffs leave to amend their complaint.

16

Bowles, 198 F.3d at 758.

17

With respect to Plaintiffs’ Second and Third Claims for Relief for which the Court does

18

find that granting leave to amend would be futile, the only indication relating to whether Plaintiffs

19

knew or should have known facts that could have been pled in the original Complaint is

20

Plaintiffs’ representation that they “continued their informal investigation of the events and

21

occurrences around the arrest and malicious prosecution of Mr. Marteinz [sic] and discovered

22

additional information to further their case.” (ECF No. 64-1 at 2; see also id. at 3 (stating that

23

Plaintiffs moved to amend “once they had sufficient evidence to proceed with the amendments”

24

embodied in the FAC).) While this assertion is certainly generic and leaves the Court little upon

25

which to base a ruling, the Court is nonetheless not persuaded to discredit Plaintiffs’

26

representation. First, it is not unreasonable to continue investigating facts after filing a complaint.

27

See Eminence Capital, 316 F.3d at 1053 (holding that repeated efforts to meet heightened

28

pleading standard not bad faith where plaintiffs proffered that “additional evidence was
24

1

forthcoming which would enable them to add necessary details to their complaint”). This is

2

particularly true in a factually intensive case such as this that involves numerous individuals,

3

conspiracy allegations, and related criminal proceedings. (See, e.g., ECF No. 1 ¶¶ 9–21, 141.5–

4

41.9.)

5

Second, the Court is bound at this stage of the litigation to draw “all inferences in favor of

6

granting the motion,” and accordingly infers that Plaintiffs acquired the additional facts alleged in

7

the FAC through good-faith investigation. Griggs, 170 F.3d at 880. Third, it is Defendants’

8

burden at this stage of the litigation to defeat the “presumption under Rule 15(a) in favor of

9

granting leave to amend” by making “a strong showing” of undue delay, which they have yet to

10

do. Eminence Capital, 316 F.3d at 1052. To the extent Defendants believe they are unfairly

11

hamstrung in their ability to meet this burden due to Plaintiffs’ counsel’s refusal to provide details

12

of the additional factual investigations that gave rise to the FAC, (ECF No. 66 at 4 n.1), denying

13

Plaintiffs leave to amend their Complaint is not the appropriate recourse, see United States v.

14

Sequel Contractors, Inc., 402 F. Supp. 2d 1142, 1154 (C.D. Cal. 2005) (rejecting motion to strike

15

that was predicated on claimed violations of Rule 11(b)).

16

Accordingly, for those causes of action for which the Court finds that Zwicky has

17

sufficiently demonstrated that it would be futile to allow Plaintiffs to amend their claims via the

18

FAC, the Court finds that Plaintiffs did not unduly delay amending their pleading.

19
20

B.

Bad Faith

Zwicky argues that Plaintiffs’ amended allegations are made in bad faith because they are

21

so implausible that they must be the product of a violation of Rule 11(b). (ECF No. 66 at 3–4.)

22

The Court considered and rejected this argument when it was incorporated by reference into the

23

opposition to Plaintiffs’ motion to amend that was filed by Defendants City of West Sacramento,

24

West Sacramento Police Department, Jason M. Winger, David M. Stallions, Michael Duggins,

25

Kenneth E. Fellows, Carl J. Crouch, Eric M. Palmer, Matthew S. Luiz, Louis Cameron, City of

26

Stockton, and Stockton Police Department (collectively, the “Non-Federal Defendants”) in this

27

action. (ECF No. 65 at 4.) For the same reasons set forth in the Court’s order relating to the

28

Non-Federal Defendants’ arguments against leave to amend, the Court views the bad faith factor
25

1
2
3

as weighing in favor of granting leave to amend as to Zwicky. (See ECF No. 69.)
C.

Prejudice

Zwicky argues that he will be prejudiced by any additional litigation delay that would

4

occur if leave to amend is granted, a delay which he estimates at between six and twelve months.

5

(ECF No. 66 at 4–5.) The Court considered and rejected this argument when it was incorporated

6

by reference into the opposition to Plaintiffs’ motion to amend that was filed by the Non-Federal

7

Defendants in this action. (ECF No. 65 at 4.) For the same reasons set forth in the Court’s order

8

relating to the Non-Federal Defendants’ arguments against leave to amend, the Court views the

9

prejudice factor as weighing in favor of granting leave to amend as to Zwicky. (See ECF No. 69.)

10
11

D.

Futility

Citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), Zwicky argues that leave to amend

12

should be denied as futile because (i) the conspiracy he is alleged to have engaged in is

13

implausible, and (ii) Plaintiffs fail to allege actions taken individually by Zwicky that violated

14

their constitutional rights. (ECF No. 66 at 5–6.)

15

Leave to amend may be denied on grounds of futility where the amended complaint would

16

immediately be subject to dismissal, which means that the “proper test to be applied when

17

determining the legal sufficiency of a proposed amendment is identical to the one used when

18

considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Nordyke v. King, 644

19

F.3d 776, 788 n.12 (9th Cir. 2011) (quoting Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

20

Cir. 1988)), rev’d on other grounds on reh'g en banc, 681 F.3d 1041 (9th Cir. 2012). “The

21

defendant therefore must present adequate argument and authority in support thereof to enable the

22

court to make an informed decision as to futility.” Johnson v. Serenity Transp., Inc., No. 15-CV-

23

02004-JSC, 2015 WL 4913266, at *3 (N.D. Cal. Aug. 17, 2015).

24
25

i.

Plausibility Analysis

Zwicky argues that leave to amend should be denied because the FAC’s conspiracy

26

allegations are implausible. (ECF No. 66 at 5–6.) The Court considered and rejected this

27

argument when it was incorporated by reference into the opposition to Plaintiffs’ motion to

28

amend that was filed by the Non-Federal Defendants in this action. (ECF No. 65 at 4.) For the
26

1

same reasons set forth in the Court’s order relating to the Non-Federal Defendants’ plausibility

2

arguments against leave to amend, the Court views this factor as weighing in favor of granting

3

leave to amend as to Zwicky. (See ECF No. 69.)

4

ii.

5

Bivens Analysis

Zwicky argues that, to the extent he was acting under color of federal and not state law at

6

the time of the events alleged in the FAC, the provisions of 42 U.S.C. § 1983 do not reach his

7

conduct. (ECF No. 66 at 6); see also Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343

8

(9th Cir. 1997) (holding that “by its very terms, § 1983 precludes liability in federal government

9

actors”). At the same time, Zwicky does not contest that claims brought against him under 42

10

U.S.C. § 1983 may be considered as claims brought to vindicate constitutional rights under

11

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (ECF

12

No. 66 at 6 (“Even if construed as claims under Bivens . . . .”).) The Court has discretion to

13

construe Plaintiffs’ non-state-tort claims against Zwicky as if they had originally been pled as

14

Bivens claims. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (“Actions under § 1983

15

and those under Bivens are identical save for the replacement of a state actor under § 1983 by a

16

federal actor under Bivens.”); Haddock v. Bd. of Dental Exam’rs of Cal., 777 F.2d 462, 464 (9th

17

Cir. 1985) (“[A] complaint should not be dismissed if it states a claim under any legal theory,

18

even if the plaintiff erroneously relies on a different legal theory.”). The Court will exercise its

19

discretion to do so for the purpose of considering Plaintiffs’ request for leave to amend.3 See

20

Geiger v. Benov, No. 1:11-CV-01857 LJO SMS, 2011 WL 5884273, at *1 (E.D. Cal. Nov. 23,

21

2011) (construing claim brought against federal employee under 42 U.S.C. § 1983 as having been

22

brought as a Bivens claim); Martinez v. United States, 812 F. Supp. 2d 1052, 1058–59 (C.D. Cal.

23

2010) (same).
As Zwicky points out, “a plaintiff c[an] not hold an officer liable because of his

24
25
26
27
28

The Court notes that “the [Supreme] Court has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity” and that this policy “is in accord with the Court’s observation that it has ‘consistently
refused to extend Bivens to any new context or new category of defendants.’” Ziglar v. Abbasi, 137 S. Ct. 1843,
1857 (2017) (quoting Iqbal, 556 U.S. at 675; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Because the
parties have not briefed the question of whether Plaintiffs’ causes of action are cognizable as Bivens claims, the Court
assumes without deciding for the subsequent discussion that Bivens claims are cognizable against Zwicky for the
conduct in which he is alleged to have engaged in the FAC.
3

27

1

membership in a group without a showing of individual participation in the unlawful conduct.”

2

Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294

3

(9th Cir. 1996)). In Jones, the Ninth Circuit ruled that a section 1983 plaintiff’s proposed jury

4

instruction was properly rejected because it would have impermissibly allowed the jury to find

5

law enforcement officers liable for searching a residence by virtue of their “simply being present

6

or being a member of a team” that conducted the search. Id. at 937. However, the Ninth Circuit’s

7

decision in Jones does not hold that all allegations of group misconduct are necessarily

8

insufficient to make out a claim for Bivens-based relief. See id. at 935 (“Chuman does not appear

9

to bar any use of a group liability [theory], but does seem to require the plaintiff to first establish

10

the ‘integral participation’ of the officers in the alleged constitutional violation.”). Only an

11

allegation of group-based liability “in and of itself without individual participation in the unlawful

12

conduct” fails. Chuman, 76 F.3d at 294.

13

Accordingly, district courts construing the group liability doctrine of Jones and Chuman

14

have upheld section 1983 claims against groups of defendants where the pleadings also include

15

factual allegations sufficient to establish that individual defendants were integral participants in

16

the unlawful conduct. In Macias v. Filippini, No. 1:17-CV-1251 AWI EPG, 2018 WL 2264243,

17

at *10 (E.D. Cal. May 17, 2018), a parent indefinitely banned from entering her child’s school

18

campus stated a claim against a school resource officer where the officer “was present during the

19

September 2015 meeting [at which the indefinite ban was imposed], reaffirmed [the school

20

principal’s] authority to institute an indefinite ban, and threatened arrest if [the plaintiff] ‘ever’

21

returned to campus.” In Ruiz v. Flores, No. 1:14-CV-00179 AWI, 2015 WL 966148, at *7 (E.D.

22

Cal. Mar. 4, 2015), seven members of a law enforcement task force that conducted an allegedly

23

unlawful search of a home outside the presence of the plaintiff homeowner were made to answer

24

claims against them even though the plaintiff could not identify which individual officers

25

participated in the search, because the court “f[ound] it plausible that the seven defendants, who

26

are alleged to be members of the seven-officer taskforce that Plaintiff alleges to have searched

27

Plaintiff’s home, were actively involved in that search.” And in Johnson v. Shasta Cty., 83 F.

28

Supp. 3d 918, 923–24, 927 (E.D. Cal. 2015), plaintiffs who were handcuffed and held at gunpoint
28

1

during a twelve-officer law enforcement raid of their home stated a claim against the raid’s

2

participants despite the fact that many of the factual allegations generally accused “defendants” of

3

various unlawful acts during the raid.

4

Finally, to establish a cause of action for a conspiracy to violate civil rights, “a plaintiff

5

must show: ‘(1) the existence of an express or implied agreement among the defendant officers to

6

deprive him of his constitutional rights, and (2) an actual deprivation of those rights resulting

7

from that agreement.’” Pelenty v. City of Seal Beach, 588 F. App’x 623, 624 n.2 (9th Cir. 2014)

8

(quoting Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991)); see also West v. City of

9

Mesa, 128 F. Supp. 3d 1233, 1240 (D. Ariz. 2015) (“Individuals acting under color of federal law

10

may be held liable under § 1983 only if ‘they conspired or acted jointly with state actors to

11

deprive the plaintiffs of their constitutional rights.’” (quoting Radcliffe v. Rainbow Constr. Co.,

12

254 F.3d 772, 783 (9th Cir. 2001))), aff’d, 708 F. App’x 288 (9th Cir. 2017). Accordingly, where

13

a complaint alleges a civil rights conspiracy as the FAC does here, a defendant’s direct

14

participation in allegedly unlawful conduct is not necessarily required so long as the facts

15

“demonstrate[e] the[ conspirators’] causal connections to the violation.” Lacey v. Maricopa Cty.,

16

693 F.3d 896, 935 (9th Cir. 2012) (en banc). This is because “the fact of the conspiracy may

17

make a party liable for the unconstitutional actions of the party with whom he has conspired.

18

Conspiracy in § 1983 actions is usually alleged by plaintiffs to . . . aid in proving claims against

19

otherwise tenuously connected parties in a complex case.” Id. (citations omitted).

20
21

a.

First Claim for Relief (Fourth Amendment)

Plaintiffs’ Fourth Amendment claim against Zwicky alleges, inter alia, that he engaged in

22

a conspiracy that utilized judicial deception to manufacture probable cause to search and arrest

23

Plaintiffs where none actually existed. (ECF No. 64 ¶¶ 155–69, 186–88.) Zwicky asserts that the

24

FAC fails to set forth facts sufficiently alleging Zwicky’s personal involvement in the conspiracy

25

to mislead judicial officers. (ECF No. 66 at 6.)

26

“[G]overnment investigators may be liable for violating the Fourth Amendment when they

27

submit false and material information in a warrant affidavit.” Galbraith v. Cty. of Santa Clara,

28

307 F.3d 1119, 1126 (9th Cir. 2002). Under this authority, “a § 1983 plaintiff must show that the
29

1

investigator ‘made deliberately false statements or recklessly disregarded the truth in the

2

affidavit’ and that the falsifications were ‘material’ to the finding of probable cause.” Id. (quoting

3

Hervey v. Estes, 65 F.3d 784, 790 (9th Cir. 1995)). “Conspiracy to violate a citizen’s rights under

4

the Fourth Amendment by lying to the magistrate is evidently as much a violation of an

5

established constitutional right as the perjury itself.” Baldwin v. Placer Cty., 418 F.3d 966, 971

6

(9th Cir. 2005).

7

The FAC contains numerous specific factual allegations of Zwicky’s “individual

8

participation in the unlawful conduct” of judicial deception to obtain search warrants. Jones, 297

9

F.3d at 935. Specifically, Plaintiffs allege that Zwicky attempted to use his known informant,

10

Altamirano, to generate evidence inculpating Martinez in the shooting of Ms. Valadez. (ECF No.

11

64 ¶¶ 159–61.) When this attempt failed, Zwicky and his law enforcement colleagues hatched a

12

conspiracy to disregard the lack of evidence tying Martinez to the shooting and to arrest and

13

prosecute him anyway. (ECF No. 64 ¶¶ 162–69.) This conspiracy began at a specific meeting at

14

the West Sacramento Police Department that Zwicky attended, a meeting which occurred on a

15

particular date and at a particular time. (ECF No. 64 ¶¶ 155, 162.) To achieve the conspiracy’s

16

goals, Zwicky told West Sacramento Police Department officers to include misleading

17

information in warrant applications targeted at Martinez. (ECF No. 64 ¶¶ 186–88.) This

18

information was included in the probable cause affidavits, submitted by other officers, in support

19

of the search warrants that other members of the conspiracy obtained from a magistrate, and

20

which led to the searches and seizures of Plaintiffs themselves and of their property. (ECF No. 64

21

¶¶ 186–210.)

22

Just because Zwicky is not alleged to have personally performed every single act which

23

resulted in a false probable cause affidavit being submitted to a magistrate does not mean that the

24

First Amended Complaint contains impermissible “group allegations or boilerplate conspiracy

25

claims.” (ECF No. 66 at 6.) Group allegations are permissible so long as “individual

26

participation in the unlawful conduct” is also alleged, as it clearly has been for Plaintiffs’ Fourth

27

Amendment claim against Zwicky. Jones, 297 F.3d at 935; see also Macias, 2018 WL 2264243,

28

at *10. Furthermore, that Zwicky himself did not sign the probable cause affidavit that
30

1

incorporated his alleged falsehoods does not doom Plaintiffs’ Fourth Amendment claim against

2

him because he played a central role in the alleged conspiracy that culminated in this judicial

3

deception, (ECF No. 64 ¶¶ 162–69, 188–89), and “[c]onspiracy to violate a citizen’s rights under

4

the Fourth Amendment by lying to the magistrate is evidently as much a violation of an

5

established constitutional right as the perjury itself,” Baldwin, 418 F.3d at 971; see also Harris v.

6

Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997) (holding that complaint met pleading standard to

7

state Bivens cause of action for conspiracy to violate Fourth Amendment rights where it alleged

8

specific meeting at which defendants conspired to concoct a false story related to an officer-

9

involved shooting and then repeated that story during subsequent investigations and judicial

10

proceedings). The specific factual allegations against Zwicky personally in the FAC make this

11

quite unlike a case alleging group action “in and of itself without individual participation in the

12

unlawful conduct.” Chuman, 76 F.3d at 294.
Accordingly, permitting the FAC’s Fourth Amendment claim to be filed would not be

13
14

futile solely on the ground that this claim contains impermissibly generalized allegations against

15

Zwicky.4 The Court GRANTS Plaintiffs’ request for leave to amend their Fourth Amendment

16

claim via the allegations in the FAC, (ECF No. 64).

17

b.

Second Claim for Relief (First Amendment)

18

Plaintiffs’ First Amendment claim against Zwicky alleges that the “Investigation Team

19

members [including Zwicky] targeted Sonny [Martinez] based on his familial association with

20

Ray and the associations they perceived Sonny to have that are protected under the First

21

Amendment.” (ECF No. 64 ¶ 251.) Plaintiffs’ claim in this regard appears to be that Zwicky and

22

his alleged conspirators intentionally violated Martinez’s “right to familial association” protected

23

by the First Amendment, Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001), specifically his

24

right to associate with his cousin Raymond “Ray” Orosco, with whom Plaintiffs lived for a short

25

4

26
27
28

The Court expresses no opinion regarding whether other potential deficiencies in Plaintiffs’ constitutional
claims against Zwicky would subject those claims to dismissal on grounds separate from those asserted in his
opposition to Plaintiffs’ motion for leave to amend—namely, that Plaintiffs’ constitutional claims against Zwicky are
futile because they constitute impermissible group allegations. (ECF No. 66 at 6.) See also Johnson, 2015 WL
4913266, at *3 (noting that while a futility argument entails the same inquiry as a motion to dismiss under Rule
12(b)(6), a defendant arguing futility “must present adequate argument and authority in support [of the traditional
Rule 12(b)(6) analysis] to enable the court to make an informed decision as to futility”).

31

1

time during late October 2015, (ECF No. 64 ¶¶ 58–62). Zwicky asserts that the FAC fails to set

2

forth facts alleging Zwicky’s personal involvement in the deprivation of Plaintiffs’ First

3

Amendment familial association rights. (ECF No. 66 at 6.)

4

In the Ninth Circuit, a plaintiff may maintain a cause of action for violation of the right to

5

familial association protected by the First Amendment because “the First Amendment protects

6

those relationships, including family relationships, that presuppose ‘deep attachments and

7

commitments to the necessarily few other individuals with whom one shares not only a special

8

community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s

9

life.’” Lee, 250 F.3d at 685 (quoting Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481

10

U.S. 537, 545 (1987)). This First Amendment right to familial association can extend to

11

“cohabitation with relatives.” Mann v. City of Sacramento, No. 17-17048, 2018 WL 4268534, at

12

*2 (9th Cir. Sept. 7, 2018) (quoting Rotary Club, 481 U.S. at 545–46). However, there does not

13

appear to be clear Ninth Circuit authority succinctly articulating the elements of such a familial

14

association claim. See Kaur v. City of Lodi, 263 F. Supp. 3d 947, 973 (E.D. Cal. 2017); Schwartz

15

v. Lassen Cty. ex rel. Lassen Cty. Jail, No. 2:10-CV-03048-MCE, 2013 WL 5375588, at *10

16

(E.D. Cal. Sept. 24, 2013) (“[T]he Court is aware of no Ninth Circuit case setting out specifically

17

the conduct or elements that constitute violation of familial association under the First

18

Amendment.”).

19

Despite this paucity of authority, the Ninth Circuit in Lee, 250 F.3d at 686, held that a

20

cognizable First Amendment familial association claim at least requires allegations that

21

“defendants’ actions . . . constituted an ‘unwarranted interference’ with” the right to familial

22

association protected by the First Amendment. See also Keates v. Koile, 883 F.3d 1228, 1236

23

(9th Cir. 2018) (“[W]e have held that claims under both the First and Fourteenth Amendment for

24

unwarranted interference with the right to familial association could survive a motion to

25

dismiss.”). The unwarranted interference in Lee occurred where law enforcement officers told a

26

mother searching for her arrested son that they had no record of his location, when the officers

27

knew or should have known that he had been extradited to a different state. Lee, 250 F.3d at 685–

28

86. “‘Unwarranted interference’ includes governmental actions that are vexatious and
32

1

unnecessary, harassing, unfounded or unreasonable, and arbitrary, discriminatory, or

2

demonstrably irrelevant.” Reyes v. Cty. of San Joaquin, No. CIVS040428FCDPANPS, 2005 WL

3

2105030, at *3 (E.D. Cal. Aug. 31, 2005) (citations omitted), report and recommendation

4

adopted, No. CIV.S-040428FCDPANPS, 2005 WL 2372703 (E.D. Cal. Sept. 27, 2005). And,

5

consistent with the requirement that constitutional violations allege “individual participation in

6

the unlawful conduct,” Jones, 297 F.3d at 935, courts construing the somewhat amorphous First

7

Amendment familial association right require allegations that individual defendants were in some

8

way “involved with the decision to” interfere with protected familial associations, Fitch v.

9

Galland, No. 1:16-CV-00489-JLT, 2017 WL 1231869, at *5 (E.D. Cal. Jan. 6, 2017).

10

Critically, Plaintiffs’ First Amendment claim against Zwicky is predicated entirely on the

11

allegation that he and his co-conspirators “targeted Sonny [Martinez] based on his familial

12

association with Ray and the associations they perceived Sonny to have that are protected under

13

the First Amendment.” (ECF No. 64 ¶ 251.) However, there is no factual allegation anywhere in

14

the FAC tying Zwicky—or any other alleged conspirator—to any personal knowledge of who Mr.

15

Orosco is, let alone what he may have done in the past that would compel the conspirators to

16

decide to falsely accuse and arrest his cousin Martinez. See Fitch, 2017 WL 1231869, at *5

17

(dismissing familial association claim against police officers who removed children from parents’

18

custody after methamphetamine was found in a child’s system where there was “no indication

19

that [the officers] were involved with the decision to remove the children”). The statements in the

20

FAC referring to Orosco either contain irrelevant background material, (ECF No. 64 ¶¶ 58–62),

21

relate to his co-location with Martinez at the time of the shooting of Ms. Valadez, (ECF No. 64

22

¶¶ 63–68, 88–94), or relate to Orosco’s location and belongings during subsequent law

23

enforcement searches, (ECF No. 64 ¶¶ 174, 221, 236). Without more factual detail regarding the

24

individual motivation Zwicky may have had to “target[] Sonny [Martinez] based on his familial

25

association with Ray” as Plaintiffs allege, (ECF No. 64 ¶ 251), it is impossible for the Court to

26

determine whether Zwicky took personal action amounting to an “unwarranted interference” with

27

that familial relationship, Lee, 250 F.3d at 686. The same is true of the alleged “associations

28

[Zwicky and his co-conspirators] perceived Sonny [Martinez] to have that are protected under the
33

1

First Amendment,” because the FAC does not set forth what constitutionally protected

2

associations motivated any law enforcement officers to accuse and arrest Martinez for shooting

3

Ms. Valadez. (ECF No. 64 ¶ 251.)
The Court therefore concludes that Plaintiffs’ First Amendment claim against Zwicky is

4
5

insufficiently specific to make out a valid claim for damages arising from a civil rights violation,

6

because it contains no factual information about Zwicky’s “individual participation in the

7

unlawful conduct” of deciding to target Martinez for investigation and prosecution due to his

8

constitutionally protected associations. Jones, 297 F.3d at 935.5 Accordingly, Plaintiffs’ First

9

Amendment claim against Zwicky “would also be subject to dismissal,” and so granting leave to

10

amend it via the FAC would be futile. Steckman, 143 F.3d at 1298. The Court therefore DENIES

11

Plaintiffs’ request for leave to amend their First Amendment claim against Zwicky as contained

12

in the FAC, (ECF No. 64).
At the same time, the Court is not convinced that “the pleading could not possibly be

13
14

cured by the allegation of other facts” because Plaintiffs could allege further details of the

15

personal participation of Zwicky or his co-conspirators in any alleged decision to target Martinez

16

for investigation and prosecution based on his associations, familial or otherwise. Watison, 668

17

F.3d at 1117. Therefore, the Court’s denial of leave to amend Plaintiffs’ First Amendment claim

18

against Zwicky is without prejudice to bring a subsequent motion for leave to amend that claim.

19

c.

Third Claim for Relief (Fifth and Sixth Amendments)

Plaintiffs allege that Zwicky, as a member of the “Investigation Team,” violated

20
21

Martinez’s Fifth and Sixth Amendment rights by interrogating him without reading him his

22

Miranda rights and without his counsel present. (ECF No. 64 ¶¶ 254–57.) Zwicky asserts that

23

the FAC fails to set forth facts alleging Zwicky’s personal involvement in the deprivation of

24

Plaintiffs’ privilege against self-incrimination and right to counsel. (ECF No. 66 at 6.)

25
26
27
28

It is beyond dispute that the Fifth Amendment bars a prosecuting authority from using
Nor can the fact that the First Amended Complaint contains conspiracy allegations save Plaintiffs’ Second
Claim for Relief against Zwicky because the only allegation of any kind that the conspirators knew who Orosco was
prior to the events of late October 2015 is that after the alleged conspiracy to target Martinez was agreed to,
“Cameron knew Sonny, Jessica, ARM, EVM, and Ray were inside the house asleep, and Plaintiff’s truck was parked
in front of the house in his view.” (ECF No. 64 ¶ 174.)
5

34

1

statements elicited during custodial interrogations of a criminal suspect unless the suspect is first

2

advised of his Miranda rights and, if the suspect requests it, provided counsel. Miranda v.

3

Arizona, 384 U.S. 436, 444–45 (1966). In the Ninth Circuit, a claim for violation of this Fifth

4

Amendment privilege against self-incrimination may be brought “when government officials use

5

an incriminating statement to initiate or prove a criminal charge.” Stoot v. City of Everett, 582

6

F.3d 910, 925 n.15 (9th Cir. 2009). Regarding the Sixth Amendment right to counsel, the Sixth

7

Amendment requires that counsel “be appointed within a reasonable time after attachment to

8

allow for adequate representation at any critical stage before trial, as well as at trial itself.”

9

Farrow v. Lipetzky, 637 F. App’x 986, 988 (9th Cir. 2016) (quoting Rothgery v. Gillespie Cty.,

10
11

554 U.S. 191, 212 (2008)).
As Zwicky points out, there are no allegations of any individual actions taken by him

12

personally to interrogate Martinez outside of the generalized claim that a group of which Zwicky

13

was a part, the “Investigation Team,” questioned Martinez without his attorney present. (ECF

14

No. 66 at 6.) Standing alone, this is insufficient to establish that Zwicky himself violated

15

Martinez’s Fifth or Sixth Amendment rights because the Ninth Circuit “require[s] individual

16

participation, not simply being present or being a member of a team,” before liability may attach

17

for violating a plaintiff’s civil rights under color of law. Jones, 297 F.3d at 937. Unlike the

18

plaintiff in Ruiz, 2015 WL 966148, at *5–7, who was hampered in his ability to identify

19

individual officers’ conduct because he was not present during their group search of his home,

20

Martinez would have been present when he was interrogated by the “Investigation Team” and so

21

should be able to allege whether Zwicky himself participated in the allegedly unlawful

22

interrogations, (ECF No. 64 ¶ 255). But as they currently stand, Plaintiffs’ allegations in their

23

Fifth and Sixth Amendment claim in the FAC amount to no more than assertions that Zwicky was

24

“simply . . . a member of a team” that interrogated Martinez in violation of his constitutional

25

rights. Jones, 297 F.3d at 937. But see Johnson, 83 F. Supp. 3d at 927 (refusing to dismiss

26

complaint that “alleged that each defendant participated in the raid of [the plaintiffs’] home, held

27

them at gunpoint, handcuffed plaintiffs . . . for thirty minutes or more and held plaintiffs in

28

custody for four hours”).
35

1

Neither can the fact that Plaintiffs’ FAC alleges a civil conspiracy save their Fifth and

2

Sixth Amendment claim against Zwicky. The FAC contains no allegations that one of the

3

conspiracy’s common objectives was to violate Martinez’s Fifth or Sixth Amendment rights,

4

outside of the conclusory assertion that “[e]verything each of the Investigation Team members

5

did regarding the Alize Valadez shooting investigation after agreeing to disregard the truth was to

6

further the conspiracy and help the object of the conspiracy succeed.” (ECF No. 64 ¶ 167.)

7

Standing alone, this is insufficient to establish “the existence of an express or implied agreement

8

among the defendant officers to deprive [Martinez] of his constitutional rights” as specifically

9

guaranteed by the Fifth and Sixth Amendments. Pelenty, 588 F. App’x at 624 n.2; see also Bell

10

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that “a formulaic recitation of the

11

elements of a cause of action will not” satisfy federal pleading standards). This is especially so

12

considering that the FAC does contain specific factual allegations that common objectives of the

13

conspiracy included violating Plaintiffs’ rights protected by other specifically enumerated

14

constitutional amendments. (E.g., ECF No. 64 ¶¶ 164, 176–200 (allegations that Defendants

15

conspired to violate the Fourth Amendment by falsifying evidence).)

16

Because Plaintiffs’ Fifth and Sixth Amendment claim against Zwicky as alleged in the

17

FAC “would also be subject to dismissal,” granting leave to amend it would be futile. Steckman,

18

143 F.3d at 1298. Accordingly, the Court DENIES Plaintiffs’ request for leave to amend their

19

Fifth and Sixth Amendment claim against Zwicky as contained in the FAC, (ECF No. 64). At the

20

same time, the Court is not convinced that “the pleading could not possibly be cured by the

21

allegation of other facts.” Watison, 668 F.3d at 1117. Plaintiffs could allege further facts

22

detailing Zwicky’s personal participation in the interrogation of Martinez without his counsel and

23

without knowledge of his Miranda rights, or setting forth in more detail the range and scope of

24

the alleged conspiracy to violate Martinez’s Fifth and Sixth Amendment rights. Therefore, the

25

Court’s denial of leave to amend the Fifth and Sixth Amendment claim alleged against Zwicky is

26

without prejudice to bring a subsequent motion for leave to amend that claim.

27
28

d.

Fourth Claim for Relief (Eighth Amendment)

Plaintiffs’ Eighth Amendment claim is that Zwicky and his colleagues violated Martinez’s
36

1

right to be free from excessive bail by misleading the magistrate and the state court handling his

2

criminal case and by concealing exculpatory evidence relating to his arrest for shooting Ms.

3

Valadez, evidence that would have resulted in his immediate release had it been presented to a

4

magistrate. (ECF No. 64 ¶¶ 260–64, 271–72.) The gravamen of Plaintiffs’ allegations appears to

5

be that because Zwicky and his co-conspirators falsely generated the probable cause to arrest and

6

detain Martinez for the shooting of Ms. Valadez, the fact that any bail at all was set while he was

7

detained pending trial on those charges means that said bail was unconstitutionally excessive.

8

(ECF No. 64 ¶ 261.) Zwicky asserts that the FAC fails to set forth facts alleging Zwicky’s

9

personal involvement in the deprivation of Martinez’s right to be free from having bail set in his

10
11

criminal case. (ECF No. 66 at 6.)
Generally, officers are liable for violating the Eighth Amendment where they

12

“deliberately or recklessly misled” the judicial officer who set bail, and where that bail “would

13

not have been unconstitutionally excessive but for the officers’ misrepresentations.” Woolery v.

14

Smith, No. 17-CV-06786-SK, 2018 WL 3328496, at *3 (N.D. Cal. July 6, 2018) (citing Galen v.

15

Cty. of L.A., 477 F.3d 652, 664 (9th Cir. 2007)). The Court notes that the portion of the FAC

16

dedicated specifically to Plaintiffs’ Eighth Amendment claim does not technically contain

17

sufficiently specific factual allegations against Zwicky because these paragraphs simply allege,

18

inter alia, that “the defendants” misled various judicial officers by concealing exculpatory

19

evidence and filing ex parte affidavits that omitted material information bearing on Martinez’s

20

right to bail. (ECF No. 64 ¶¶ 261–64.) Such allegations are, standing alone, insufficient to

21

establish that Zwicky himself violated Martinez’s Eighth Amendment rights because the Ninth

22

Circuit “require[s] individual participation, not simply being present or being a member of a

23

team,” before liability attaches for violating a plaintiff’s civil rights under color of law. Jones,

24

297 F.3d at 937.

25

Other allegations elsewhere in the FAC, however, contain specific charges and factual

26

allegations that Zwicky and his law enforcement colleagues “deliberately or recklessly misled” a

27

judicial officer to obtain warrants for Martinez’s arrest. Woolery, 2018 WL 3328496, at *3.

28

Zwicky allegedly took joint action with members of the West Sacramento Police Department to
37

1

incorporate materially false information in probable cause affidavits targeted at Martinez. (ECF

2

No. 64 ¶¶ 186, 188.) Indeed, Zwicky himself was the conduit by which Altamirano’s false

3

implication of Martinez as Ms. Valadez’s shooter was incorporated into the probable cause

4

affidavits sworn out against Martinez. (ECF No. 64 ¶¶ 177–78.) It is reasonable to infer that

5

based on these facts, one of the common objectives of the conspiracy in which Zwicky allegedly

6

engaged was to mislead judicial officers as an indirect means of forcing Martinez to directly or

7

inadvertently confess to shooting Ms. Valadez. (ECF No. 64 ¶¶ 162–69.) It is also reasonable to

8

infer, as the Court must do at this stage in the litigation, Griggs, 170 F.3d at 880, that the

9

magistrate reviewing the conspirators’ applications for warrants to search Plaintiffs’ residence

10

and arrest Martinez would not have found probable cause in the absence of a confession sourced

11

from an informant described by Zwicky as “reliable.” (ECF No. 64 ¶ 186.) Read in its entirety,

12

the FAC therefore contains factual allegations setting forth Zwicky’s “individual participation in

13

the unlawful conduct” alleged, Jones, 297 F.3d at 935, namely, deliberate judicial deception

14

aimed at inducing bail to be set for Martinez that would not have been set “but for the officers’

15

misrepresentations,” Woolery, 2018 WL 3328496, at *3.

16

Accordingly, the Court GRANTS Plaintiffs’ motion for leave to amend their Eighth

17

Amendment claim against Zwicky via the FAC, (ECF No. 64).

18

e.

19

Fifth Claim for Relief (Fourteenth Amendment)

Plaintiffs’ Fourteenth Amendment claim is that Zwicky and his fellow conspirators

20

violated Martinez’s due process rights by fabricating evidence that led to him being improperly

21

charged with and detained in custody for the shooting of Ms. Valadez, and by depriving him and

22

his family of their reciprocal companionship. (ECF No. 64 ¶¶ 271–300.) Zwicky asserts that the

23

FAC fails to set forth facts alleging Zwicky’s personal involvement in the deprivation of

24

Martinez’s rights not to have criminal charges filed against him on the basis of false evidence, not

25

to be incarcerated after the conspirators knew or should have known he was innocent, and not to

26

suffer an unwarranted interference with his familial relations. (ECF No. 66 at 6.)

27
28

It is “virtually self-evident” that Plaintiffs have a “constitutional due process right not to
be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by
38

1

the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001). The Fourteenth

2

Amendment’s due process protections are violated where a criminal defendant is incarcerated

3

after “it was or should have been known that the detainee was entitled to release.” Lee, 250 F.3d

4

at 683 (citing Cannon v. Macon Cty., 1 F.3d 1558, 1563 (11th Cir. 1993)). It is also clear that the

5

Fourteenth Amendment protects Plaintiffs’ right to enjoy the companionship and society of their

6

family members. Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, 880 F.3d

7

450, 458 (9th Cir.) (noting that “freedom of intimate association[ is] protected under the

8

Substantive Due Process Clause of the Fourteenth Amendment”), amended by 881 F.3d 792 (9th

9

Cir. 2018). To state such a Fourteenth Amendment claim in the context of Martinez’s

10

relationship with his children, Plaintiffs must allege facts showing that Zwicky’s actions

11

“constituted an unwarranted interference” with their right to familial association. Lee, 250 F.3d at

12

686.

13

Generally, Plaintiffs’ Fourteenth Amendment claim against Zwicky would be subject to

14

dismissal because the Fourteenth Amendment does not apply to federal actors. See S.F. Arts &

15

Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543 n.21 (1987) (“The Fourteenth

16

Amendment applies to actions by a State. The claimed association in this case is between the

17

USOC and the Federal Government. Therefore, the Fourteenth Amendment does not apply.”);

18

Taylor v. Donley, No. CIV S-08-0869 JAM DAD PS, 2010 WL 958067, at *3 (E.D. Cal. Mar. 10,

19

2010) (“The plain language of the [Fourteenth] amendment reflects that these provisions apply to

20

states and not to the federal government or its employees.”), report and recommendation adopted,

21

No. CIV S-08-0869 JAM DAD PS, 2010 WL 1236327 (E.D. Cal. Mar. 26, 2010). However,

22

non-state actors ordinarily exempt from the application of the Fourteenth Amendment can

23

nonetheless be liable where they conspire with state actors whose allegedly unlawful conduct is

24

governed by that amendment. See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (“A private

25

individual may be liable under § 1983 if she conspired or entered joint action with a state actor.”);

26

West, 128 F. Supp. 3d at 1240 (“Individuals acting under color of federal law may be held liable

27

under § 1983 only if ‘they conspired or acted jointly with state actors to deprive the plaintiffs of

28

their constitutional rights.’” (quoting Radcliffe, 254 F.3d at 783)).
39

1

Plaintiffs sufficiently allege the existence of a conspiracy between Zwicky and his co-

2

conspirators to fabricate evidence leading to the filing of criminal charges against and subsequent

3

incarceration of Martinez, and they adequately allege facts describing Zwicky’s “individual

4

participation in th[at] unlawful conduct.” Jones, 297 F.3d at 935. Zwicky himself allegedly

5

knew that Altamirano’s account of Martinez’s confession was fabricated, (ECF No. 64 ¶ 108–11,

6

158), but he and his law enforcement cohorts nevertheless chose to use it as a basis for generating

7

probable cause to search and arrest Martinez, (ECF No. 64 ¶¶ 156, 162–64, 178). Furthermore,

8

Zwicky also allegedly agreed to perjure himself by testifying at a preliminary hearing that

9

Altamirano—on whose word the entire case against Martinez at that point rested—was a reliable

10

informant whose account of Martinez’s confession was credible. (ECF No. 64 ¶ 299.) Because

11

the criminal case against Martinez depended so heavily on Altamirano’s falsehoods, and because

12

it was eventually dismissed for lack of evidence following fifty-three days of his being detained,

13

(ECF No. 64 ¶ 296), it is reasonable to infer that the conspirators—and particularly Zwicky who

14

was or should have been most acutely aware of Altamirano’s credibility issues, (ECF No. 64

15

¶¶ 105–07)—knew or should have “known that the detainee was entitled to release” during that

16

time, Lee, 250 F.3d at 683. That Zwicky knew or should have known that Martinez’s detention

17

was without probable cause compels the conclusion that his detention “constituted an

18

unwarranted interference” with his Fourteenth Amendment right to be free to spend time with his

19

family. Id. at 685–86.

20
21
22
23

Accordingly, the Court GRANTS Plaintiffs’ motion for leave to amend their Fourteenth
Amendment claim against Zwicky as contained in the FAC, (ECF No. 64).
f.

Sixth Claim for Relief (Malicious Prosecution)

Plaintiffs’ Sixth Claim for Relief is that Zwicky and his co-conspirators were instrumental

24

in causing Martinez to be maliciously prosecuted for the shooting of Ms. Valadez. (ECF No. 64

25

¶¶ 301–06.) Zwicky asserts that the FAC fails to set forth facts alleging Zwicky’s personal

26

involvement in the deprivation of Martinez’s right to be free from the prosecution to which he

27

was subjected. (ECF No. 66 at 6.)

28

A Bivens claim of malicious prosecution derived from falsified evidence seeks to
40

1

vindicate rights protected directly by the Fourth Amendment, see Galbraith, 307 F.3d at 1126,

2

and a criminal defendant “may maintain a malicious prosecution claim not only against

3

prosecutors but also against others—including police officers and investigators—who wrongfully

4

caused his prosecution,” Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011) (citing Galbraith,

5

307 F.3d at 1126). “[A] police officer’s ‘false statements and failure to disclose material

6

information to the prosecutor’ may support a claim for malicious prosecution.” Johnson v. Brady,

7

No. CV-14-01875-PHX-DGC, 2015 WL 390794, at *8 (D. Ariz. Jan. 28, 2015) (quoting Smith,

8

640 F.3d at 938). To maintain a Bivens action for malicious prosecution, “a plaintiff must show

9

that ‘the defendants prosecuted her with malice and without probable cause, and that they did so

10

for the purpose of denying her [a] specific constitutional right.’” Smith, 640 F.3d at 938

11

(alteration in original) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.

12

1995)); see also West, 128 F. Supp. 3d at 1240 (recognizing Bivens claim for “malicious

13

prosecution without probable cause in violation of the Fourth Amendment” against an FBI agent

14

who conspired to use false testimony to implicate, arrest, and prosecute a Bivens plaintiff for

15

robbery).

16

The FAC contains sufficient allegations that Zwicky “wrongfully caused [Martinez’s]

17

prosecution.” Smith, 640 F.3d at 938. These include allegations that Zwicky and his law

18

enforcement colleagues conspired to disregard the lack of evidence tying Martinez to the shooting

19

and to arrest and prosecute him anyway. (ECF No. 64 ¶¶ 162–69.) To achieve the conspiracy’s

20

goals, Zwicky told West Sacramento Police Department officers to include misleading

21

information in warrant applications targeted at Martinez. (ECF No. 64 ¶¶ 186–88.) He even

22

went so far as to agree to testify falsely at a preliminary hearing in Martinez’s prosecution

23

regarding the reliability of the informant on whom the prosecution’s case rested. (ECF No. 64

24

¶ 299.) This alleged conduct amounts to generating the kind of false statements that “may

25

support a claim for malicious prosecution.” Johnson, 2015 WL 390794, at *8. The FAC also

26

contains factual allegations that Zwicky and his co-conspirators engaged in these unlawful acts

27

for the purpose of denying Martinez his “specific constitutional right” not to be arrested without

28

probable cause. Smith, 640 F.3d at 938; (ECF No. 64 ¶ 164). Based on these allegations that
41

1

Zwicky was personally and integrally involved in generating the evidence that led to Martinez’s

2

criminal prosecution, the First Amended Complaint’s malicious prosecution claim sets forth

3

Zwicky’s “individual participation in the unlawful conduct” alleged of malicious prosecution

4

violative of the Fourth Amendment. Jones, 297 F.3d at 935.

5
6
7
8
9

Accordingly, the Court GRANTS Plaintiffs’ motion for leave to amend their malicious
prosecution claim against Zwicky as contained in the FAC, (ECF No. 64).
g.

Seventh Claim for Relief (Abuse of Process)

Plaintiffs’ Seventh Claim for Relief is that Zwicky and his coconspirators “intentionally,
deliberately, or recklessly abused the affidavit sealing process, continuance process, and other

10

processes in the criminal case [against] Sonny” Martinez, which abuse was a substantial factor in

11

depriving him of his constitutional rights. (ECF No. 64 ¶¶ 308–09.)

12

As an initial matter, the Court notes that it remains unclear whether a claim for abuse of

13

process is cognizable in the Ninth Circuit either as a Bivens claim or as a claim brought pursuant

14

to 42 U.S.C. § 1983. See West, 708 F. App’x at 292 (“Even assuming an abuse of process claim

15

is cognizable under § 1983 in our circuit . . . .”). Some courts in the Ninth Circuit have suggested

16

that a freestanding abuse of process claim brought pursuant to Bivens or pursuant to 42 U.S.C.

17

§ 1983 claim, if cognizable at all, “would . . . incorporate the [state law] elements of abuse of

18

process.” Campbell v. City of Bakersfield, No. CIV F04-5585 AWI TAG, 2006 WL 2054072, at

19

*21 (E.D. Cal. July 21, 2006); see also Hunley v. Breceda, No. CV 02-9106 GHK (AJW), 2010

20

WL 11582944, at *15 (C.D. Cal. Jan. 4, 2010) (“Analogizing to a section 1983 malicious

21

prosecution claim, it is assumed, for purposes of this analysis, that a section 1983 action for abuse

22

of process can be maintained, and such a claim would incorporate the elements of the tort of

23

abuse of process under California law.”). “To succeed in an action for abuse of process, a litigant

24

must establish that the defendant (1) contemplated an ulterior motive in using the judicial process,

25

and (2) committed ‘a willful act in the use of th[at] process not proper in the regular conduct of

26

the proceedings.’” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019,

27

1037 (9th Cir. 2008) (alteration in original) (quoting Oren Royal Oaks Venture v. Greenberg,

28

Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986)). Zwicky asserts that the FAC
42

1

fails to set forth facts alleging Zwicky’s personal involvement in the abuse of process suffered by

2

Martinez. (ECF No. 66 at 6.)

3

The Court finds that Plaintiffs have alleged sufficiently specific facts that Zwicky played a

4

personal role in the conspiracy to “abuse[] the affidavit sealing process, continuance process, and

5

other processes in the criminal case against Sonny” Martinez. (ECF No. 64 ¶ 308.) The

6

conspirators actuated this alleged abuse of process by including in the probable cause affidavits

7

sworn out against Martinez false information sourced from Zwicky, namely that the informant

8

who implicated Martinez was reliable and that unsealing the affidavits would endanger the

9

informant’s life. (ECF No. 64 ¶¶ 185–86.) Knowingly including false statements in a probable

10

cause affidavit submitted to a magistrate constitutes the willful commission of an act “not proper

11

in the regular conduct of the proceedings” of issuing warrants based on probable cause. Estate of

12

Tucker ex rel. Tucker, 515 F.3d at 1037; see also Garcia v. City of Merced, 637 F. Supp. 2d 731,

13

751 (E.D. Cal. 2008) (holding that “the obtaining of an arrest warrant by false evidence . . . can

14

amount to abuse of process because an arrest warrant is not to be used for . . . the wrongful arrest

15

and incarceration of an innocent party”). The alleged “ulterior motive” driving this abuse by

16

Zwicky and his co-conspirators, Estate of Tucker ex rel. Tucker, 515 F.3d at 1037, was to keep

17

Martinez detained for as long as possible in order to obtain further evidence regarding the

18

shooting of Ms. Valadez, or at the very least to “get[] the streets talking about the arrest and

19

shooting,” (ECF No. 64 ¶ 164). Accordingly, the FAC’s abuse of process claim sets forth

20

Zwicky’s “individual participation in the unlawful conduct” alleged because it is Zwicky who

21

personally supplied the false information incorporated into the misleading probable cause

22

affidavits sworn out against Martinez and subsequently sealed. Jones, 297 F.3d at 935.

23
24

Accordingly, the Court GRANTS Plaintiffs’ motion for leave to amend their
constitutional abuse of process claim against Zwicky as contained in the FAC, (ECF No. 64).

25

V.

26

The Court orders as follows:

27

1.

28

CONCLUSION

The United States’ motion to dismiss, (ECF No. 44), is GRANTED as to
Plaintiffs’ Sixth through Fourteenth Claims for Relief in the original Complaint,
43

1
2

(ECF No. 1).
2.

Plaintiffs’ motion for leave to amend their allegations against Zwicky is

3

GRANTED as to the First, Fourth, Fifth, Sixth, and Seventh Claims for Relief as

4

those claims are set forth in the FAC, (ECF No. 64).

5

3.

Plaintiffs’ motion for leave to amend their allegations against Zwicky is DENIED

6

without prejudice as to the Second, Third, and Ninth through Eighteenth Claims

7

for Relief as those claims are set forth in the FAC, (ECF No. 64).

8

4.

9
10
11
12

Zwicky’s motion to dismiss the original Complaint, (ECF No. 43), is DENIED as
moot.

5.

Plaintiffs shall file any further motions to amend their pleading within thirty days
of this Order.

IT IS SO ORDERED.

13
14

Dated: February 4, 2019

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18

Troy L. Nunley
United States District Judge

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