Puentes v. County of San Mateo et al

Filing 20

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (SI, COURT STAFF) (Filed on 9/8/2011)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8

BENJAMIN PUENTES,

9
United States District Court
For the Northern District of California

10
11

No. C 11-02511 SI

Plaintiff,

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.
COUNTY OF SAN MATEO, ET AL,

12

Defendants.

/

13
14

Defendants’ motion for summary judgment, or in the alternative to dismiss, is currently set for

15

hearing on September 9, 2011. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter

16

appropriate for resolution without oral argument and hereby VACATES the hearing. Having considered

17

the papers submitted, and for good cause shown, the Court hereby GRANTS defendants’ motion.

18
BACKGROUND

19
20

Benjamin Puentes, acting pro se, brought this lawsuit against the County of San Mateo (“San

21

Mateo”) and six individual probation officers and supervisors (“probation officers”) employed by San

22

Mateo. Mr. Puentes was a Santa Clara County probation officer who was convicted of the misdemeanor

23

offense of contributing to the delinquency of a minor. See Declaration of Janis C. Martin, ¶ 5; see also

24

People v. Puentes, 2007 Cal. App. Unpub. LEXIS 2640, *1-2 (Cal. App. 6th Dist. 2007).1 In light of

25
1

26
27
28

Plaintiff was also charged with felony sexual intercourse with a minor more than three years
younger than himself (Pen. Code, § 261.5, subd. (c)). In his first trial, the jury deadlocked on both
charges and a mistrial was declared. People v. Puentes, 2007 Cal. App. Unpub. LEXIS 2640, *16. In
his second trial, the jury deadlocked on the felony count, but convicted plaintiff on the misdemeanor.
Id. A mistrial was declared on the felony count, and the prosecution timely moved to dismiss the felony
count. People v. Puentes, 190 Cal. App. 4th 1480, 1483 (Cal. App. 2010).

1

the conflict, the Santa Clara County probation office asked the San Mateo County probation office to

2

compile a Pre-Sentence Report (“PSR”) on Mr. Puentes for use by the Santa Clara Superior Court in

3

sentencing Mr. Puentes and determining terms of probation. Martin Decl., ¶¶ 4-6.2 In June 2005,

4

defendant Martin issued a PSR on plaintiff (“Martin PSR”). Martin Decl., ¶ 6, & Ex. A; Complaint,

5

¶ 16. Plaintiff alleges the report was “knowingly and intentionally falsified” and “unnecessary” and that

6

the report was approved by defendant Perry. Complaint, ¶ 17; Declaration of Rosalia A. Carpio, ¶ 8.

7

The Martin PSR was used by the Santa Clara Superior Court in determining plaintiff’s sentence. Id.,

8

¶ 18. Plaintiff appealed his misdemeanor conviction, and it was overturned by the California Court of

9

Appeal for instructional error at trial. People v. Puentes, 2007 Cal. App. Unpub. LEXIS 2640.

United States District Court
For the Northern District of California

10

On remand, the Superior Court found insufficient evidence to hold defendant for the

11

misdemeanor charge, but allowed the prosecution to proceed with the reinstated felony count. Puentes,

12

190 Cal. App. 4th at 1483. Plaintiff was convicted of the felony charge. Id. Again, because of the

13

conflict, the San Mateo probation office was asked to prepare a PSR. In July 2009, defendant Di Mauro

14

prepared a PSR and submitted it for use by the Santa Clara Superior Court (“Di Mauro PSR”).

15

Declaration of Jody L. Di Mauro, ¶¶ 6-7; Complaint ¶ 20. The Superior Court suspended imposition

16

of sentence and placed defendant on felony probation for three years. Puentes, 190 Cal. App. 4th at

17

1482. Plaintiff appealed the conviction. Id. Plaintiff alleges that the PSR was unnecessary and

18

fraudulent because it was based on the felony charge that was dismissed and unconstitutionally re-filed.

19

Complaint, ¶¶ 22,23. Plaintiff also alleges that the Di Mauro PSR was approved by defendant Carpio.

20

Complaint, ¶ 21; Carpio Decl., ¶ 9.

21

In addition to the creation of the PSRs, defendant complains that defendant Montoya “illegally

22

forced an intake interview” in November 2009, which duplicated the malicious harassment he had

23

already suffered. Complaint, ¶ 27. Plaintiff complains that defendants harassed plaintiff by creating

24

a “probation file” consisting of stringent probation conditions. Id., ¶28. Plaintiff also complains that

25

in September 2010, defendant Melendy returned plaintiff’s “fraudulent probation file” along with an

26
27
28

2

The defendants explain that in cases of conflict, e.g., where a current or former employee of
a county’s probation office is convicted of a crime, the county will request a neighboring county to
handle the investigation and PSR for use by the sentencing court. See, e.g., Martin Decl., ¶4.
2

1

inaccurate and exaggerated report to Santa Clara County, “knowing it would result in more false

2

imprisonment and harassment before the second appeal was decided.” Id., ¶ 29.

3

In December 2010, the California Court of Appeals reversed plaintiff’s felony conviction for

4

vindictive prosecution, and dismissed the felony charge. Puentes, 190 Cal. App. 4th at 1482-83.

5

Plaintiff filed this case in May 2011, and asserts seven causes of action: (1) conspiracy in violation of

6

41 U.S.C. § 1985 and 18 U.S.C. § 241; (2) malicious abuse of process; (3) aiding and abetting violation

7

of constitutional rights; (4) extortion in violation of California Penal Code § 518; (5) “neglecting to

8

prevent” a violation of constitutional rights under 42 U.S.C. § 1986; (6) double jeopardy under the

9

California Constitution; and (7) fraud in violation of California Penal Code §§ 118.1, 134 and 153 and

United States District Court
For the Northern District of California

10

constitutional rights.

11

The County has moved for summary judgment or in the alternative to dismiss, arguing that

12

defendants are entitled to absolute judicial immunity and plaintiff fails to state a claim. Plaintiff opposes

13

the motion, arguing that he was “never supposed to be on probation” and defendants were supposed to

14

prevent Santa Clara County from the vindictive prosecution of defendant in 2009. See Opposition at

15

2-3.

16
17

LEGAL STANDARD

18

Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and

19

any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled

20

to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The moving party bears the initial burden of

21

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

22

323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving

23

party will have the burden of proof at trial. The moving party need only demonstrate to the Court that

24

there is an absence of evidence to support the non-moving party’s case. Id. at 325.

25

Once the moving party has met its burden, the burden shifts to the non-moving party to “set out

26

‘specific facts showing a genuine issue for trial.’” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). To carry

27

this burden, the non-moving party must “do more than simply show that there is some metaphysical

28

doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
3

1

586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there must be

2

evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty

3

Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a summary judgment motion, the court must view the evidence in the light most

5

favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

6

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from

7

the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Id.

8

However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise

9

genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d

10
United States District Court
For the Northern District of California

4

730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. Civ. P. Rule

11

56(c)(2).

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

DISCUSSION
I.

Immunity of Defendants for Conduct Which Plaintiff Alleges Violated his Constitutional
Rights
The Ninth Circuit has held that probation officers are immune from liability for damages under

28 U.S.C. § 1983, when acting within the scope of their employment. See Demoran v. Witt, 781 F.2d
155 (9th Cir. 1985).3 In Demoran, the plaintiff complained that a state probation officer, with malice
and in bad faith, prepared a probation report containing deliberately false statements and that, as a result,
Demoran received an improperly long sentence. Id., at 156. The Court held that probation officers are
entitled to absolute judicial immunity for their acts in aid of the judicial process. The Ninth Circuit
noted that “[p]robation officers preparing presentencing reports serve a function integral to the
independent judicial process. . . they act as ‘an arm of the sentencing judge.’” Demoran, 781 F.2d at
157 (quoting Cleavinger v. Saxner, 474 U.S. 193, 204 (1985)).
In this case, both defendants Martin and Di Mauro – as well as their supervisors who approved
the PSRs – were engaged in acts in aid of the judicial process in preparing and submitting the PSRs and

27
3

28

Plaintiff’s prayer for relief makes clear that he is seeking only damages from the individual
defendants. Complaint, ¶ 53.
4

are entitled to absolute immunity for damage suits under Section 1983.4 The Court notes that the

2

complaint does not provide any facts explaining why either PSR was false or fraudulent. In his

3

Opposition, plaintiff complains that the Martin PSR was false because it appeared to assert plaintiff was

4

convicted of the felony in his second trial and that plaintiff should be required to register as a sex

5

offender, Opposition at 3-4, and that Di Mauro should have noted in her report that plaintiff’s

6

misdemeanor conviction had been reversed. Id., at 4. However, if there were inaccuracies in the Martin

7

or Di Mauro PSRs – and this Court is not finding there were – plaintiff could have and should have

8

raised these issues with the Santa Clara Superior Court judges who sentenced him. The sentencing

9

judge is the person who has the final say on what sentence and terms of probation, if any, should be

10
United States District Court
For the Northern District of California

1

imposed. As noted above, the probation officers who provide recommendations and background

11

information for the judge’s use are immune from suit under Section 1983.

12

Plaintiff also alleges that defendants violated his rights by forcing an intake interview, Complaint

13

¶ 27, compiling a “probation file” with stringent conditions of probation, id., ¶ 28, and returning the

14

probation file to Santa Clara County. Id., ¶ 29. With respect to the November 2009 intake interview,

15

the Court finds that the routine intake interview was directly required by the fact that the Court

16

sentenced plaintiff to probation. In other words, intake was a necessary first step following the

17

imposition of probation by the Court. See Melendy Decl., ¶ 8. As such, the Court finds the holding of

18

the intake interview here to be shielded by absolute judicial immunity.5 Similarly, with respect to the

19

compiling of the probation file containing his “probation conditions,” the terms of plaintiff’s probation

20

were determined by the sentencing judge not by probation officers in San Mateo. As such, the fact that

21

the probation officers kept track of the conditions is an act protected by judicial immunity under

22

Demoran.

23

Whether the actions of defendant Melendy in returning plaintiff’s file to Santa Clara County with

24
25
26
27

4

Plaintiff’s complaint does not explicitly invoke Section 1983. However, plaintiff’s First,
Second, Third, Fifth, and Seventh causes of action complain of conduct that violated plaintiff’s federal
constitutional rights. As Section 1983 provide the private right of action for violations of federal
constitutional rights, the Court analyzes those claims through Section 1983.
5

28

The Court notes that plaintiff does not complain that anything improper occurred during the
intake interview, only that the interview occurred.
5

1

a recommendation that plaintiff be cited for a probation violation are entitled to absolute judicial

2

immunity presents a closer question. See, e.g., Davis v. Spier, 2008 U.S. Dist. LEXIS 33231 (D. Ariz.

3

Apr. 14, 2008) (reviewing probation officers’ roles under Arizona law and determining that a probation

4

officer’s investigation and decision to petition a judge to revoke probation were protected only by

5

qualified immunity). The Court need not reach the question of what level of immunity applies to

6

Melendy’s acts because the Court finds that Melendy’s actions are protected under qualified immunity

7

as a matter of law. “[G]overnment officials performing discretionary functions, generally are shielded

8

from liability for civil damages insofar as their conduct does not violate clearly established statutory or

9

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

United States District Court
For the Northern District of California

10

800, 818 (1982).

11

In this case, plaintiff’s basic complaint is that he should not have been on parole because Santa

12

Clara retaliated against him by vindictively prosecuting the felony conviction that had been dismissed.

13

See Opposition at 3, 5. Plaintiff alleges that the San Mateo County defendants approved of and

14

cooperated in this retaliation. Id., at 5. However, based on the evidence submitted by defendant

15

Melendy – which plaintiff does not contest or contradict – the Court finds that officer Melendy’s

16

conduct did not violate clearly established statutory or constitutional rights of which a reasonable person

17

should have known. While plaintiff accuses Melendy of having returned plaintiff’s file with an

18

“exaggerated unnecessary report” back to Santa Clara, plaintiff does not cite to any fact in Melendy’s

19

report that was exaggerated or false. See Ex. F to Declaration of Laura Melendy Decl. Plaintiff also

20

alleges that Melendy returned the report, “knowing that it would result in more false imprisonment and

21

harassment before the second appeal was decided.” Complaint, ¶ 29. However, plaintiff’s appeal was

22

still pending when Melendy returned her recommendation that plaintiff be cited for a probation

23

violation. No reasonable person or reasonable probation officer would have known that plaintiff’s

24

felony conviction would be overturned. Similarly, it is not reasonable to require that probation officers

25

refrain from conducting their mandatory and discretionary duties simply because a probationer has

26

appealed his or her underlying conviction.

27

Moreover, the County cannot be held liable on a respondeat superior theory for any of the acts

28

discussed above. Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where
6

1

official policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658,

2

690 (1978); however, a municipality may not be held vicariously liable for the unconstitutional acts of

3

its employees under the theory of respondeat superior. Id., 436 U.S. at 691. With respect to the

4

County’s actions, the complaint is devoid of any facts apart from the acts of the individual defendant

5

probation officers. Instead, the complaint asserts that the County should be liable for its enforcement

6

of the probation officers’ policies and for the failure to properly train and supervise the probation

7

officers. Complaint, ¶ 5.
To impose municipal liability under § 1983 for a violation of constitutional rights, a plaintiff

9

must show: (1) that the plaintiff possessed a constitutional right of which he or she was deprived; (2)

10
United States District Court
For the Northern District of California

8

that the municipality had a policy; (3) that the policy amounted to deliberate indifference to the

11

plaintiff's constitutional rights; and (4) that the policy was the moving force behind the constitutional

12

violation. See Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).

13

“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its

14

policymaking officials, and practices so persistent and widespread as to practically have the force of

15

law.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). Here, there are no facts alleged in the

16

complaint or evidence provided by declaration opposing the motion for summary judgment that San

17

Mateo County has a policy or practice of encouraging false probation reports or any other conduct that

18

could sustain a claim of violation of plaintiff’s constitutional rights against the County.

19

As such, summary judgment must be GRANTED to defendants on plaintiff’s First Cause of

20

Action for conspiracy6; Second Cause of Action for abuse of process; Third Cause of Action for aiding

21

and abetting; and Fifth Cause of Action for neglecting to prevent a civil rights violation, which are all

22

based on alleged violations of plaintiff’s federal constitutional rights.7

23
24
25
26
27
28

6

In his First Cause of Action, plaintiff also alleges a violation of 18 U.S.C. § 241, which makes
it a crime to conspire to deprive a person of his constitutional right. However, there is no basis for civil
liability under this section. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
7

Plaintiff’s seventh cause of action for fraud is likewise dismissed to the extent it relies on
violations of plaintiff’s federal constitutional rights under the 4th, 5th, 6th, 8th and 14th Amendments. See
Complaint, ¶ 50.
7

1

II.

Plaintiff’s State Law Claims
In addition to the claims for violation of his federal constitutional rights, plaintiff has also alleged

3

state law causes of action for extortion under California Penal Code § 518; double jeopardy under the

4

California Constitution; and fraud under California Penal Code §§ 118.1, 134 and 153. With respect

5

to plaintiff’s claim for double jeopardy, it cannot be maintained against the probation officers or San

6

Mateo. Plaintiff complains about being denied bail, being falsely imprisoned, and being unlawfully

7

placed on probation pending his second appeal. Complaint, ¶ 48. However, these are all consequences

8

of actions taken by the Santa Clara County Superior Court. The Superior Court is responsible for

9

granting bail, responsible for sending someone to jail, and responsible for placing someone on probation.

10
United States District Court
For the Northern District of California

2

Plaintiff’s claim for extortion and fraud are barred by plaintiff’s failure to comply with the

11

California Tort Claims Act. Prior to instituting an action seeking money damages from a county or a

12

government employee acting within the scope of her employment, a claimant must file a written claim.

13

See Cal. Govt. Code §§ 945.4, 950.1. Defendants raised this argument in their motion, but plaintiff did

14

not respond or submit any evidence that a claim has been filed. Because there is no evidence that

15

plaintiff has filed a claim with the County of San Mateo, these claims are barred. See State of California

16

v. Superior Court, 32 Cal. 4th 1234 (Cal. 2004); see also Fowler v. Howell, 42 Cal. App. 4th 1746, 1751

17

(Cal. App. 1996) (dismissing malicious prosecution action against co-worker for failure to file California

18

Tort Act claim).

19
20

CONCLUSION

21

For the foregoing reasons, the Court GRANTS defendants’ motion for summary judgment. The

22

plaintiff cannot state a claim for damages against the individual defendants or a claim for damages or

23

other relief against the County.

24
25

IT IS SO ORDERED.

26
27

Dated: September 8, 2011
SUSAN ILLSTON
United States District Judge

28
8