Nilsen v. Lunas et al

Filing 77

ORDER by Judge Edward M. Chen Granting 69 Defendants' Motion to Stay. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 8/1/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL DAVID NILSEN, Plaintiff, 8 9 ORDER GRANTING DEFENDANTS’ MOTION TO STAY v. 10 RYAN ERICKSON, et al., 11 Docket No. 69 Defendants. 12 For the Northern District of California United States District Court Case No. 16-cv-03631-EMC 13 Plaintiff Michael D. Nilsen, proceeding pro se, has filed suit against various persons and 14 entities, alleging that his civil rights were violated when he was stopped for a traffic violation and 15 subsequently “searched” for alleged drunk driving. Previously, the Court granted motions to 16 dismiss filed by multiple defendants. Currently pending before the Court is a motion to stay 17 proceedings filed by two of the remaining defendants, namely Sutter West Bay Region (dba Sutter 18 Lakeside Hospital) (hereinafter “Sutter”) and Daniel Hickey (a Sutter employee). Collectively, 19 Sutter and Mr. Hickey shall hereinafter be referred to as the Sutter Defendants. The Sutter 20 Defendants ask that the Court stay proceedings in this case pending a trial in the state court 21 criminal case in which Mr. Nilsen has been charged with drunk driving. 22 23 24 Having considered the parties‟ briefs and accompanying submissions, as well as the oral argument of Mr. Nilsen and defense counsel, the Court hereby GRANTS the motion to stay. I. FACTUAL & PROCEDURAL BACKGROUND 25 In his complaint, Mr. Nilsen alleges as follows. 26 On April 10, 2015, at 2:30 a.m., Mr. Nilsen was driving home. A Lake County Sheriff‟s 27 Office SUV was traveling ahead of him, at least 10 mph below the speed limit. See Compl. ¶¶ 10- 28 11. Mr. Nilsen turned into his driveway and shortly thereafter the SUV came up; it had made a U- 1 turn and followed him. The deputy driving the SUV advised Mr. Nilsen that he had been 2 following the SUV too closely in violation of the California Vehicle Code. The deputy then called 3 the California Highway Patrol (“CHP”) because he thought he smelled alcohol coming from Mr. 4 Nilsen‟s car. See Compl. ¶¶ 12-14 (alleging that CHP was called “to conduct a „turnover‟ DUI 5 investigation”). 6 Two CHP officers arrived to conduct the DUI investigation. Mr. Nilsen refused to take a 7 field sobriety test. The officers then arrested Mr. Nilsen, charging him with driving under the 8 influence, driving on a suspended license, and resisting peace officers. See Compl. ¶¶ 16-18 9 (referring to California Vehicle Code §§ 23152(a)-(b) and 14601 and California Penal Code § 10 The CHP officers took Mr. Nilsen to Sutter, where Mr. Hickey, a phlebotomist, was 12 For the Northern District of California United States District Court 11 148). The resisting charge was eventually dropped. See Compl. ¶ 19. assigned to draw Mr. Nilsen‟s blood. Mr. Nilsen refused to consent to having his blood drawn, 13 absent a warrant. See Compl. ¶¶ 20-21. “Ultimately the blood was drawn, absent either consent 14 or a warrant.” Compl. ¶ 22. Although Defendants claim oral consent was given, it was not, and 15 Mr. Nilsen never signed the blood draw consent form used for suspected DUI patients. See 16 Compl. ¶¶ 23-25. 17 In June 2015, Mr. Nilsen was arraigned. See Compl. ¶¶ 27-28. In the state criminal 18 proceeding, Mr. Nilsen filed a motion to suppress in which he asked the state court to exclude, 19 inter alia, the results of the blood draw. See Compl. ¶¶ 29, 34 & Ex. A (Mot. at 1-2). The state 20 court denied the motion (in August 2015). See Compl. ¶ 37; the state trial court credited the CHP 21 officer testimony and testimony by Mr. Hickey that Mr. Nilsen initially refused to consent to the 22 blood draw but, when the officer said he would get a warrant, Mr. Nilsen “then consented 23 verbally, although [he] refused to sign the hospital consent form.” Compl., Ex. D (Tr. at 5-7). Mr. 24 Nilsen appealed that ruling; the appellate court affirmed (in February 2016). See Compl. ¶ 41. 25 The appellate court agreed with the state trial court that consent was voluntary; “[h]ere, as the 26 hearing judge found, there was no force, no duress, no threats, no promises made” and Mr. Nilsen 27 “clearly knew he had the right to refuse and to require the officer to obtain a warrant.”). Compl., 28 Ex. G (Tr. at 6). 2 1 It now appears that Mr. Nilsen‟s trial in the state criminal proceeding is set for August 16, 2 2017. See Foley Decl. ¶ 5 (also stating that “[a] trial readiness conference will be held on August 3 4, 2017”). 4 5 Based on, inter alia, the above allegations, Mr. Nilsen sued in this Court the following persons and entities: Several state court judges;  The deputy who was driving the SUV and called CHP in for possible drunk 8 driving; 9  The two CHP officers who conducted the DUI investigation; 10  Mr. Hickey (the Sutter employee who drew Mr. Nilsen‟s blood); 11  Sutter Lakeside Hospital; 12 For the Northern District of California  7 United States District Court 6  Several employees in the Lake County D.A.‟s Office; 13  The Lake County Sheriff‟s Office; and 14  CHP. 15 Some of the defendants are no longer in the case, the Court having granted their motions to 16 dismiss with prejudice. See Docket No. 36 (order dismissing with prejudice the following 17 defendants: CHP, the state court judges, the Lake County D.A.‟s Office prosecutors, the Lake 18 County Sheriff‟s Office, and the deputy). 19 20 With respect to the Sutter Defendants who still remain in the case, Mr. Nilsen has asserted the following claims: 21 (1) Violation of 42 U.S.C. § 1983 (based on the Fourth and Fourteenth Amendments). 22 According to Mr. Nilsen, Mr. Hickey “aided and abetted [the CHP officers] by performing 23 the actual blood draw against [his] wishes, even though [Mr. Hickey] was aware that the 24 consent form created by Sutter Lakeside Hospital called for the written, signed permission 25 of a DUI patient who had waived his right to a warrant.” Compl. ¶ 52. 26 (2) 27 According to Mr. Nilsen, all Defendants “participated in a conspiracy to continue and 28 cement the deprivation of rights . . . , beginning at the traffic stop and continuing to this Violation of 42 U.S.C. § 1985 (based on the Fourth and Fourteenth Amendments). 3 1 date.” Compl. ¶ 57. 2 (3) 3 According to Mr. Nilsen, Mr. Hickey “could have intervened timely by simply refusing to 4 draw blood absent a warrant or signed consent from the patient.” Compl. ¶ 61. 5 (4) 6 Hickey‟s decision to proceed absent either a warrant or written consent [implicitly] 7 indicates a failure to train, a failure to supervise, or both.” Compl. ¶ 64. 8 9 Violation of 42 U.S.C. § 1986 (based on the Fourth and Fourteenth Amendments). Failure to train. According to Mr. Nilsen, Sutter failed to train because “[Mr.] II. DISCUSSION The Sutter Defendants have moved for a stay of the instant action pending a resolution of Mr. Nilsen‟s state court criminal proceeding in which he is charged with driving under the 11 influence. See Mot. at 2 (referring to Lake County Supreme Court Case No. CR938961). 12 For the Northern District of California United States District Court 10 Although asserting various grounds for the stay, the Sutter Defendants do not specifically 13 argue that this Court has the authority to stay under Landis v. North American Co., 299 U.S. 248 14 (1936), that is the gist of its position. “A district court has discretionary power to stay proceedings 15 in its own court under Landis.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). In 16 assessing the propriety of a stay under Landis, the court must consider 17 18 19 20 21 22 the competing interests which will be affected by the granting or refusal to grant a stay . . . . Among those competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. Id. at 1110 (internal quotation marks omitted). In the instant case, the considerations above weigh in favor of a stay. Most notably, there 23 is value to a stay based on the orderly course of justice. Although the Sutter Defendants have 24 invoked Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that, “in order to recover 25 damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by 26 actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must 27 prove that the conviction or sentence has been reversed on direct appeal, expunged by executive 28 order, declared invalid by a state tribunal authorized to make such determination, or called into 4 1 question by a federal court‟s issuance of a writ of habeas corpus”), the doctrine that seems more 2 on point is that of collateral estoppel. 3 4 5 6 7 8 9 10 12 For the Northern District of California United States District Court 11 13 The Ninth Circuit has noted that [s]tate law governs the application of collateral estoppel or issue preclusion to a state court judgment in a federal civil rights action. The criteria for the application of collateral estoppel are: (1) the prior conviction must have been for a serious offense so that the defendant was motivated to fully litigate the charges; (2) there must have been a full and fair trial to prevent convictions of doubtful validity from being used; (3) the issue on which the prior conviction is offered must of necessity have been decided at the criminal trial; and (4) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior trial. McGowan v. City of San Diego, 208 Cal. App. 3d 890, 256 Cal. Rptr. 537, 539 (1989). By substituting the word “proceeding” for the words “conviction” and “trial,” the appellate court in McGowan held the doctrine of collateral estoppel may apply in a civil action to issues determined in a prior section 1538.5 motion to suppress ruling. Ayers v. Richmond, 895 F.2d 1267, 1270-71 (9th Cir. 1990). In Ayers itself, the Ninth Circuit, applying the above criteria, agreed with the district court 14 that “the state courts‟ denial of [the federal civil rights plaintiff‟s] section 1538.5 motions to 15 suppress collaterally estopped [him] from relitigating in the civil action the issue of whether his 16 arrests violated the fourth amendment.” Id. at 1269. With respect to the issue of a full and fair 17 proceeding, the court noted that the plaintiff presented his suppression motions to the municipal 18 court with the assistance of counsel and that he appealed the adverse rulings pre-trial. See id. at 19 1271. The court added that there was a final judgment for purposes of collateral estoppel because, 20 even though the plaintiff had a statutory right to appeal the adverse rulings within thirty days after 21 entry of his guilty pleas, he did not do so. See id. at 1271-72 (noting that “a ruling on a motion to 22 suppress becomes final by a failure to appeal”). 23 In Johnston v. County of Sonoma, No. C 10-03592 CRB, 2012 U.S. Dist. LEXIS 13779, 24 (N.D. Cal. Feb. 6, 2012), Judge Breyer reached the same result. There, the civil rights defendants 25 argued that, because a state criminal court had rejected the federal civil rights plaintiff‟s 26 contention that a law enforcement officer had unlawfully detained her, collateral estoppel applied 27 to the plaintiff‟s federal civil rights claim for unlawful seizure and imprisonment. Judge Breyer 28 agreed, noting, inter alia, that, “[i]n Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728, 774-75 5 1 (2007), the court stated that the denial of a motion to suppress that argued an arrest and detention 2 were unlawful, was sufficiently final for collateral estoppel purposes.” Id. at *13. Judge Breyer 3 added that, in his case, the plaintiff had chosen not to pursue an immediate appeal of the state 4 criminal court‟s rulings and so “the determination by the state court is sufficiently final for 5 collateral estoppel purposes.” Id. at *15. In the instant case, there appears to be a strong case for application of collateral estoppel 6 7 because, in the state court criminal proceeding, Mr. Nilsen moved to suppress the blood draw 8 evidence but his motion was denied, and that ruling was affirmed on appeal. That determination 9 of fact – that Mr. Nilsen consented to the blood draw – would appear to vitiate his remaining 10 claims herein. Given the strong prospect of collateral estoppel, the orderly course of justice weighs in 12 For the Northern District of California United States District Court 11 favor of a stay because, if the preclusion doctrine applies, then it makes little sense to have this 13 litigation continue. Moreover, Mr. Nilsen has not shown that there is a “fair possibility” that a 14 stay will cause him injury. Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 15 1059, 1066 (9th Cir. 2007) (stating that, “„if there is even a fair possibility that the stay . . . will 16 work damage to some one else,‟ the stay may be inappropriate absent a showing by the moving 17 party of „hardship or inequity‟”).1 At the hearing, Mr. Nilsen argued that he would be harmed by a 18 stay of this case because the state court criminal trial will never happen. While there does appear 19 to have been delays in the trial, at this point, it is entirely speculative that no trial will ever take 20 place. Moreover, the Court does not intend for any stay to be indefinite. It will continue to hold 21 status conferences so that the parties can report back on the progress of the state court criminal 22 proceeding. This will ensure against the risk argued by Mr. Nilsen that a stay will deprive him of 23 his rights because a trial in the state court proceeding will never take place. 24 25 1 26 27 28 Because Mr. Nilsen has not shown even a fair possibility that a stay will cause him harm, the Sutter Defendants‟ failure to establish a clear case of hardship (other than the normal cost of defending a lawsuit) is not dispositive. See ASIS Internet Servs. v. Member Source Media, LLC, No. C-08-1321 EMC, 2008 U.S. Dist. LEXIS 109241, at *6 (N.D. Cal. Sep. 8, 2008) (noting that the showing of hardship by the party moving for the stay is triggered “only if the party opposing the stay first demonstrates that there is a „fair possibility‟ that a stay will cause it injury”). 6 III. 1 2 CONCLUSION For the foregoing reasons, the Court grants the Sutter Defendants‟ motion for a stay of 3 proceedings in this case, pending resolution of the state court criminal proceeding. As the Court 4 stated at the hearing, this does not preclude the Sutter Defendants from asking for relief from the 5 stay in order to obtain an adjudication on the applicability of collateral estoppel. 6 This order disposes of Docket No. 69. 7 8 IT IS SO ORDERED. 9 10 12 For the Northern District of California United States District Court 11 Dated: August 1, 2017 ______________________________________ EDWARD M. CHEN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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