Hopkins v. Oakland Police Dept et al
Filing
58
ORDER DENYING PLAINTIFF'S 53 MOTION TO COMPEL DISCOVERY AND STAY SUMMARY JUDGMENT; GRANTING DEFENDANTS' 30 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 9/30/2011. (ndr, COURT STAFF) (Filed on 9/30/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KEVIN L. HOPKINS,
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United States District Court
For the Northern District of California
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ORDER DENYING PLAINTIFF'S
MOTION TO COMPEL DISCOVERY AND
STAY SUMMARY JUDGMENT; GRANTING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
Plaintiff,
v.
OAKLAND POLICE DEPARTMENT,
OAKLAND POLICE OFFICER
WILLIAM BERGERON,
(Docket nos. 30 & 53)
Defendants.
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No. C 09-0722 CW (PR)
________________________________/
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INTRODUCTION
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Plaintiff Kevin L. Hopkins, a state prisoner currently
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incarcerated at the West County Detention Facility in Richmond,
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California, brought this pro se civil rights action pursuant to 42
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U.S.C. § 1983 alleging that, in 2007, several members of the
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Oakland Police Department (OPD) violated his First Amendment right
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of access to the courts by retaliating against him for successfully
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settling, in 2006, a prior action he brought against the OPD, OPD
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Police Chief Richard Word, and OPD officers I. Padilla and B. Ko
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for misconduct.1
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The Court conducted an initial screening of the present
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complaint pursuant to 28 U.S.C. § 1915A(a) and found cognizable
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Plaintiff's retaliation claim against OPD Officer William Bergeron.
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Additionally, the Court dismissed Plaintiff's retaliation claims
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28
1
See Hopkins v. Oakland Police Dep't Officers, et al,
No. C 01-04972 (CW) (PR).
1
against several unnamed OPD officers, explaining to Plaintiff that
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he could file a motion to amend the complaint should he learn the
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identities of those officers.
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Plaintiff has not done so.
Now pending before the Court is the motion for summary
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judgment filed by Defendant Bergeron and Defendant City of Oakland,
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the municipal entity that encompasses the OPD.2
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opposed the motion and Defendants have filed a reply.
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is Plaintiff's motion to compel discovery and stay summary
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judgment.
United States District Court
For the Northern District of California
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Also pending
For the reasons discussed below, the Court DENIES Plaintiff's
motions, and GRANTS the motion for summary judgment.
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Plaintiff has
BACKGROUND
I.
Plaintiff's Facts
The following facts are derived from the allegations in
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Plaintiff's verified complaint (docket no. 1) and Plaintiff's
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verified declaration filed in support of his opposition to the
17
motion for summary judgment (docket no. 54).
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On August 17, 2007, Plaintiff was driving in Oakland and came
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to a stop at a red flashing light at 27th and Market streets.3
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While stopped, to his left he noticed a marked police car at a
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When screening the complaint, the Court did not discuss
whether the complaint stated a claim against the OPD, and the OPD
was not ordered served with the complaint. Nevertheless, the City
of Oakland has answered the complaint and joins in the motion for
summary judgment.
3
In his complaint, Plaintiff states the date was August 18,
2007, while in his declaration in support of his opposition to the
motion for summary judgment he states the date was August 17, 2007.
The latter date is the same date identified by Bergeron in his
declaration and exhibits in support of the motion for summary
judgment. Accordingly, as there appears to be no dispute that
August 17, 2007 is the relevant date herein, the Court uses that
date.
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1
complete stop.
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right of way, to proceed; when it did not, Plaintiff made a right
3
turn.
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Plaintiff waited for the police car, which had the
Once Plaintiff's right turn was completed, the police car
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turned on its red flashing lights.
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right, coming to a complete stop.
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police car with their revolvers drawn.
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and asked Plaintiff if he had his driver's license.
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responded that he did not, and told Bergeron his date of birth,
United States District Court
For the Northern District of California
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Plaintiff pulled over to his
Two officers exited from the
Bergeron approached the car
Plaintiff
license number and name.
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Bergeron then asked Plaintiff, "How did you buy this brand new
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car by lying on good police officers?" and said, "[Y]our lying
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black ass is going back to prison."
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to Plaintiff before Bergeron searched Plaintiff's car.
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Bergeron made these statements
Bergeron next opened the trunk of the car, which was filled
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with cooking utensils.
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Plaintiff's family member borrowed the car.
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that the utensils had been left in the trunk.
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The utensils had been placed there when
Plaintiff was unaware
Plaintiff did not have drugs on his person or in his car.
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However, Bergeron planted drugs in the car, which resulted in
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Plaintiff's being charged with possession of crack cocaine.
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charges were later dismissed.
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II.
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The
Defendant Bergeron's Facts
The following facts are derived from Bergeron's declaration
and supporting exhibits (docket nos. 31, 32).4
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The Court GRANTS Bergeron's Request for Judicial Notice of
the public records of the criminal complaint filed against
Plaintiff in Alameda County Superior Court on August 20, 2007, and
the Clerk's Dockets in that case dated August 27, 2007 and December
20, 2007.
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1
On August 17, 2007, at approximately 8:00 a.m., Bergeron and
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his partner Officer Vallimont were on patrol in the area of 27th
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and Market Streets in Oakland.
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26th Street at Market Street.
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approaching the intersection of 27th and Market traveling
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northbound on Market. The intersection was clearly marked for
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northbound, southbound, eastbound and westbound traffic.
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Bergeron was driving eastbound on
He noticed a green Toyota Corolla
The traffic light governing northbound traffic on Market
Street was red.
The traffic signal was green for eastbound
United States District Court
For the Northern District of California
10
traffic.
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miles per hour and turn eastbound on 27th, failing to come to a
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complete stop before making the turn on red.
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Bergeron observed the Corolla slow to approximately five
As Bergeron entered the intersection (eastbound 26th Street at
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Market), the driver of the Corolla, later identified as Plaintiff,
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began to turn in front of Bergeron’s vehicle and Bergeron had to
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quickly brake to avoid a collision with him.
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Bergeron noted that the Corolla had no rear license plate.
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that point, Bergeron conducted a traffic stop for making a right
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turn on red, failing to yield to a vehicle with the right of way
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At
and failing to have two license plates as required.
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When Bergeron requested Plaintiff's driver's license,
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Plaintiff informed Bergeron that he did not have one.
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Plaintiff identified himself using a California Department of
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Corrections and Rehabilitation (CDCR) identification card and
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informed Bergeron that he was on parole.
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Instead,
Bergeron then conducted a parole search of Plaintiff and the
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vehicle.
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side floorboard a folded one dollar bill containing suspected rock
During the search, Bergeron recovered from the driver's
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cocaine.
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knife and a piece of paper with Plaintiff's name on it.
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He also recovered from the spare tire compartment a large
Plaintiff was arrested for possession of narcotics and
4
violation of parole.
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responded and approved the arrest.
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front passenger, Williams, was arrested on a parole warrant.
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Bergeron's superior officer, Sgt. Ferguson,
Additionally, Plaintiff's right
Bergeron was not aware that Plaintiff had been involved in a
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prior lawsuit against the City of Oakland, and did not discuss any
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lawsuits with him.
United States District Court
For the Northern District of California
10
On August 20, 2007, the Alameda County District Attorney's
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Office filed a criminal complaint against Plaintiff for felony
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possession of a controlled substance in violation of Health and
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Safety Code Section 11350(a).
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court granted the District Attorney's motion to dismiss the case in
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the interest of justice, and Plaintiff was released as to that
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action only.
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On December 20, 2007, the trial
DISCUSSION
I.
Plaintiff's Motion to Compel and to Stay Summary Judgment
On February 8, 2011, approximately two months after Bergeron
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filed his motion for summary judgment, Plaintiff moved for an
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extension of time to file opposition to Bergeron's motion and to
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stay Bergeron's motion on the ground Plaintiff had not had adequate
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opportunity to engage in discovery to oppose Bergeron's motion.
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The Court granted Plaintiff's request for an extension of time to
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oppose the motion for summary judgment, but denied Plaintiff's
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request for a stay, ruling as follows:
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Plaintiff states he has been hindered in his ability
to oppose Defendant's motion because he did not receive
said motion until January 20, 2011, he has limited law
library access and he needs to engage in discovery in
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order to find witnesses who viewed Defendant's alleged
retaliatory acts against Plaintiff.
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Rule 56(d) of the Federal Rules of Civil Procedure
provides a procedure by which a party may avoid summary
judgment when such party has not had sufficient
opportunity to discover affirmative evidence necessary to
oppose the motion. See Garrett v. San Francisco, 818 F.
2d 1515, 1518 (9th Cir. 1987). In particular, Rule 56(d)
provides that a court may deny a summary judgment motion
and permit the opposing party to conduct discovery where
it appears that the opposing party, in the absence of
such discovery, is unable to present facts essential to
opposing the motion. Fed. R. Civ. P. 56(d).
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United States District Court
For the Northern District of California
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Here, the Court finds a stay of Defendant's motion
for summary judgment to allow Plaintiff to engage in
further discovery prior to filing his opposition is
unwarranted. The Court ordered service of the complaint
on Defendant more than one year ago and, in so doing,
informed the parties that they could engage in discovery.
Further, Plaintiff received Defendant's summary judgment
motion more than five months ago. Plaintiff has provided
no compelling reason why he has not completed discovery
heretofore and requires additional time to do so.
Moreover, Defendant has moved for summary judgment on
grounds of qualified immunity. Under well-established
precedent, a district court should stay discovery until
the threshold question of qualified immunity is settled.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Dimartini v. Ferrin, 889 F.2d 922, 926 (9th Cir. 1989).
Accordingly, Plaintiff's motion to stay Defendant's
motion for summary judgment is DENIED.
Order, dated July 12, 2011, at 3:11-4:20.
Thereafter, Plaintiff filed a motion to compel discovery and
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renewed his request to stay Bergeron's motion for summary judgment.
21
In his motion, Plaintiff asserts that he requested discovery from
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Bergeron in January and February of 2011 concerning documentation
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of racially-biased statements allegedly made by Bergeron to
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African-Americans and other evidence generally supporting
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Plaintiff's claims, but Bergeron objected to providing such
26
discovery.
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discovery requests to Bergeron, Bergeron's responses thereto, or
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evidence of any attempt by Plaintiff to meet and confer with
Plaintiff has not provided the Court with copies of his
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1
Bergeron prior to filing the instant motion.
2
The Court finds Plaintiff's motion without merit.
3
issue of racial bias on the part of Bergeron was asserted in
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Plaintiff's complaint.
5
by Bergeron, and speculates for the first time in his opposition
6
papers that Bergeron's actions might have been racially motivated.
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As Bergeron never was put on notice in the complaint that he was
8
being charged with racial bias, the Court finds Plaintiff's
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discovery requests concerning the same are not relevant to the
United States District Court
For the Northern District of California
10
First, no
Rather, Plaintiff alleged only retaliation
instant proceedings.
11
Second, Plaintiff has failed to show that he is entitled to
12
discovery with respect to his general assertion that Bergeron did
13
not respond to Plaintiff's discovery requests concerning the
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instant claim against Bergeron.
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has not provided the Court with copies of his discovery requests to
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Bergeron and Bergeron's objections thereto, and he has not verified
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that he attempted to meet and confer with Bergeron prior to filing
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the instant motion, as is required by Rule 37(a)(1) of the Federal
19
Rules of Civil Procedure and
Specifically, as noted, Plaintiff
Civil Local Rule 37-1.
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Accordingly, Plaintiff's motion to compel is DENIED.
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Additionally, Plaintiff's renewed request for a stay of
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Bergeron's summary judgment motion is DENIED for the reasons set
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forth in the Court's Order of July 12, 2011 denying Plaintiff's
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previous request for such a stay.
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II.
Defendant Bergeron's Motion for Summary Judgment
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A.
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Summary judgment is properly granted when no genuine and
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disputed issues of material fact remain and when, viewing the
Standard of Review
7
1
evidence most favorably to the non-moving party, the movant is
2
clearly entitled to prevail as a matter of law.
3
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
4
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
5
1987).
6
Fed. R. Civ. P.
The moving party bears the burden of showing that there is no
7
material factual dispute.
8
the opposing party's evidence, if supported by affidavits or other
9
evidentiary material.
Therefore, the Court must regard as true
Celotex, 477 U.S. at 324; Eisenberg, 815
United States District Court
For the Northern District of California
10
F.2d at 1289.
11
favor of the party against whom summary judgment is sought.
12
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
13
587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d
14
1551, 1558 (9th Cir. 1991).
15
opposing affidavit under Rule 56, as long as it is based on
16
personal knowledge and sets forth specific facts admissible in
17
evidence.
18
Cir. 1995).
19
The Court must draw all reasonable inferences in
A verified complaint may be used as an
Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th
Material facts which would preclude entry of summary judgment
20
are those which, under applicable substantive law, may affect the
21
outcome of the case.
22
are material.
23
(1986).
24
on an issue at trial, the moving party may discharge its burden of
25
showing that no genuine issue of material fact remains by
26
demonstrating that "there is an absence of evidence to support the
27
nonmoving party's case."
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then shifts to the opposing party to produce "specific evidence,
The substantive law will identify which facts
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Where the moving party does not bear the burden of proof
Celotex, 477 U.S. at 325.
8
The burden
1
through affidavits or admissible discovery material, to show that
2
the dispute exists."
3
(9th Cir. 1991).
4
essential element of the non-moving party's case necessarily
5
renders all other facts immaterial.
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409
A complete failure of proof concerning an
Celotex, 477 U.S. at 323.
6
B.
7
A district court may consider only admissible evidence in
Evidence Considered
8
ruling on a motion for summary judgment.
9
56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).
United States District Court
For the Northern District of California
10
See Fed. R. Civ. P.
Plaintiff's complaint is verified, as is his declaration filed
11
in support of his opposition.
12
used as opposing affidavits to Bergeron's motion for summary
13
judgment under Rule 56 of the Federal Rules of Civil Procedure.
14
See Schroeder, 55 F.3d at 460 & nn.10-11.
15
objects to the admissibility of certain statements made by
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Plaintiff in his declaration.
17
Accordingly, these documents may be
Bergeron, however,
First, Bergeron objects that Plaintiff's testimony, at ¶¶ 12-
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14 of Plaintiff's declaration, that Plaintiff was a target of
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"unprovoked pull over stops," body-cavity searches and other
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allegedly unlawful acts by unidentified OPD officers on unspecified
21
dates and not involving Bergeron is irrelevant to whether Bergeron
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violated Plaintiff's First Amendment rights with respect to the
23
events at issue in the present action because the Court previously
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dismissed all of Plaintiff's claims against unnamed Defendants.
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Second, Bergeron objects that Plaintiff's testimony, at ¶¶ 15-
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16, 20 of Plaintiff's declaration, that the CDCR Department of
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Internal Affairs denied Plaintiff's request for information
28
concerning the actions of unnamed OPD officers described above also
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1
is irrelevant, is hearsay and lacks foundation.
2
Plaintiff has not responded to Bergeron's objections.
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The Court agrees that the above statements are not relevant to
4
the instant proceedings.
5
as evidence in opposition to Bergeron's motion for summary
6
judgment.
Accordingly, they will not be considered
7
C.
8
Plaintiff claims that Bergeron arrested Plaintiff in
9
United States District Court
For the Northern District of California
10
Plaintiff's Claim
retaliation for Plaintiff's prior successful lawsuit against the
OPD, OPD Police Chief Word, and OPD officers Ko and Padilla.
11
Bergeron asserts that he is entitled to summary judgment on
12
Plaintiff's retaliation claims because (1) there is no evidence
13
that is sufficient to create a material issue of fact as to whether
14
Bergeron's conduct was motivated by a desire to retaliate against
15
Plaintiff for exercising his First Amendment rights, i.e.,
16
Plaintiff's successful lawsuit, and (2) he is entitled to qualified
17
immunity.
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To demonstrate retaliation in violation of the First
19
Amendment, a plaintiff must ultimately prove first that the
20
defendant took action that would chill or silence a person of
21
ordinary firmness from future First Amendment activities.
22
v. John Ascuaga's Nugget, 548 F.3d 892, 901 (9th Cir. 2008)
23
(internal citation and quotation omitted).
24
must ultimately prove that the defendant's desire to cause the
25
chilling effect was a but-for cause of the defendant's actions.
26
Id.
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Dietrich
Second, the plaintiff
A plaintiff who alleges his arrest was retaliatory, but does
10
1
not claim retaliatory prosecution, is not required to plead and
2
prove the absence of probable cause in order to state a claim for
3
retaliation.
4
(2006), and Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir.
5
2006)).5
6
the arrest "'has high probative force'" when considering whether
7
the defendant's actions were retaliatory.
8
901 (quoting Hartman, 547 U.S. at 265)).
9
United States District Court
For the Northern District of California
Nevertheless, the existence of probable cause to support
1.
10
See id. (discussing Hartman v. Moore, 547 U.S. 250
Dietrich, 548 F.3d at
The Initial Traffic Stop
Plaintiff claims that Bergeron's initial stop of Plaintiff's
11
car was retaliatory because, contrary to Bergeron's assertions,
12
Plaintiff did not fail to stop at the red light before turning.
13
argues, but presents no evidence, that he had dealer plates on his
14
car.
15
He
Whether Plaintiff did or did not stop at the red light is a
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disputed fact that cannot be decided on summary judgment.
However,
17
this fact is not material to deciding the present motion.
Even if
18
the Court assumes that Plaintiff did stop at the red light, he has
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failed to raise a reasonable inference that Bergeron's stop of
20
Plaintiff was retaliatory.
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First, Plaintiff presents no admissible evidence to call into
22
question Bergeron's evidence that Plaintiff did not have a rear
23
license plate, in violation of California Vehicle Code Section
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Here, Plaintiff's parole was revoked but he was not
prosecuted for a criminal offense. Accordingly, the Court finds
this case should be analyzed as one for retaliatory arrest rather
than retaliatory prosecution. Consequently, Plaintiff is not
required to plead and prove the absence of probable cause in order
to show that Bergeron's actions were retaliatory. See Skoog, 469
F.3d at 1234.
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1
5200, which states in part: “When two license plates are issued by
2
the department for use upon a vehicle, they shall be attached to
3
the vehicle for which they were issued, one in the front and the
4
other in the rear.”
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statement Plaintiff makes in reference to Bergeron's evidence is
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the following: "Plaintiff did not commit traffic violation as
7
alleged.
8
still had dealer plates for the car was a 2007."
9
Cal. Veh. Code § 5200(a).
Instead, the only
Plaintiff did not have license plates for the vehicle
Opp'n at 2:13-15.
Plaintiff's statement fails to create a material issue of
United States District Court
For the Northern District of California
10
fact, however, because the statement is made in Plaintiff's
11
unverified opposition papers, not in his declaration, and, as such,
12
has no evidentiary value.
13
considered and all reasonable inferences are drawn in Plaintiff's
14
favor, the statement does not call into question Bergeron's
15
evidence that Plaintiff: (1) did not have a rear license plate,
16
(2) did not present evidence to Bergeron that showed he possessed
17
dealer plates, and (3) did not present other evidence to Bergeron,
18
such as a copy of the report of sale, that showed he was permitted
19
to operate the car without license plates because it was newly
20
purchased.
21
displaying a copy of the report of sale may be operated without
22
license plates or registration card until either of the following,
23
whichever occurs first: (1) The license plates and registration
24
card are received by the purchaser. (2) A six-month period,
25
commencing with the date of sale of the vehicle, has expired.").
Further, even if the statement is
See Cal. Veh. Code § 4456(c)(1)-(2) ("A vehicle
26
Second, Plaintiff's causation argument fails with respect to
27
the initial stop because Plaintiff states in his declaration that
28
Bergeron learned Plaintiff's identity only after Bergeron
12
1
approached the car and asked Plaintiff for identification, at which
2
point Plaintiff told Bergeron his name and that he was on parole.
3
See Pl.'s Dec. Supp. Opp'n ¶ 9.; see also Opp'n at 7:19 ("Upon
4
defendant accosting plaintiff he discovered who plaintiff was
5
. . . .").
Consequently, because there is no probative evidence
6
to show that Bergeron knew Plaintiff's identity prior to pulling
7
Plaintiff's car over, Plaintiff has failed to create a material
8
issue of fact with respect to whether Bergeron acted with a
9
retaliatory motive in so doing.6
United States District Court
For the Northern District of California
10
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2.
The Search and Plaintiff's Arrest
Plaintiff claims that Bergeron's search of Plaintiff's car and
12
Plaintiff's subsequent arrest were retaliatory because, after
13
learning Plaintiff's identity but before conducting the search,
14
Bergeron asked Plaintiff, "How did you buy this brand new car by
15
lying on good officers?" and said, "[Y]our lying black ass is going
16
back to prison."
17
Pl.'s Dec. Supp. Opp'n ¶ 19.
Even if Bergeron's initial statement about Plaintiff's "lying
18
on good officers" raises an inference that Bergeron knew about
19
Plaintiff's prior litigation, the undisputed evidence shows that
20
when Bergeron made his second statement, i.e., that Plaintiff would
21
be going back to prison, Bergeron already knew that Plaintiff was a
22
parolee driving without a license who had committed at least one
23
traffic violation.
24
infer that Plaintiff would be returned to prison as a parole
25
violator.
Based on such facts, Bergeron reasonably could
See Cal. Code Regs. tit. 15, § 2512(a) (providing that
26
27
28
6
In his opposition, Plaintiff theorizes for the first time
that Bergeron's decision to pull Plaintiff over may have been
"racially motivated." Opp'n at 7:18. This argument is purely
speculative and unsupported and was not raised in the complaint.
Accordingly, it will not be considered by the Court.
13
1
general conditions of parole are applicable to all parolees and
2
violation of such conditions "may result in the revocation of
3
parole and the parolee's return to prison"), id. § 2512(a)(4)
4
(general conditions of parole require that the parolee "shall not
5
engage in criminal conduct").
6
Further, although Plaintiff maintains that Bergeron did not
7
have probable cause to search Plaintiff's car and arrest him,
8
probable cause is not required for the search of a parolee.
9
Samson v. California 547 U.S. 843, 851-856 (2006) (finding that
See
United States District Court
For the Northern District of California
10
suspicionless search of parolee, conducted under the authority of a
11
California statute requiring that every prisoner eligible for
12
release on state parole "shall agree in writing to be subject to
13
search or seizure by a parole officer or other peace officer at any
14
time of the day or night, with or without a search warrant and with
15
or without cause" did not violate the Fourth Amendment).
16
Moreover, Plaintiff does not dispute Bergeron's evidence that
17
a "large" knife with a blade approximately eight inches long was
18
found in the trunk of Plaintiff's car, see Bergeron Dec. ¶ 3 & Ex.
19
A, Crime Report, at 4, which is a per se violation of parole.
20
Cal. Code Regs., tit. 15, § 2512(a)(6) (general conditions of
21
parole require that a parolee "not own, use, have access to, or
22
have under [his] control . . . any knife with a blade longer than
23
two inches, except kitchen knives which must be kept in [his]
24
residence and knives related to [his] employment which may be used
25
and carried only in connection with [his] employment . . . .").
26
See
Finally, Plaintiff maintains that Bergeron planted the cocaine
27
that led to Plaintiff's being charged with a violation of
28
California Health and Safety Code section 11350(a).
14
Plaintiff,
1
however, has presented no evidence to substantiate this conclusory
2
assertion other than his statement that the cocaine was not his.
3
Specifically, he has presented no evidence to show, for example,
4
that the cocaine had not been put in the car by either his
5
passenger or the family member who had borrowed Plaintiff's car
6
previously.
7
cocaine in the car or been aware of its presence does not raise a
8
reasonable inference that it was planted in the car by Bergeron.
9
In sum, the fact that Plaintiff might not have put the
Based on the above, the Court concludes that Plaintiff has
United States District Court
For the Northern District of California
10
failed to raise a triable issue of material fact with respect to
11
whether retaliation was a but-for cause of Bergeron's stop, search
12
and arrest of Plaintiff.
13
motion for summary judgment.
Accordingly, the Court GRANTS Bergeron's
14
D.
15
Bergeron claims that summary judgment is proper in this case
Qualified Immunity
16
also because he is entitled to qualified immunity from liability
17
for civil damages.
18
"government officials . . . from liability for civil damages
19
insofar as their conduct does not violate clearly established
20
statutory or constitutional rights of which a reasonable person
21
would have known."
22
The threshold question in qualified immunity analysis is: "Taken in
23
the light most favorable to the party asserting the injury, do the
24
facts alleged show the officer's conduct violated a constitutional
25
right?"
The defense of qualified immunity protects
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Saucier v. Katz, 533 U.S. 194, 201 (2001).
26
A court considering a claim of qualified immunity must
27
determine whether the plaintiff has alleged the deprivation of an
28
actual constitutional right and whether such right was "clearly
15
1
established."
2
818 (2009).
3
whether a right is clearly established is whether it would be clear
4
to a reasonable officer that his conduct was unlawful in the
5
situation he confronted.
6
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808,
The relevant, dispositive inquiry in determining
Saucier, 533 U.S. at 201-202.
Here, the Court has found no evidence that Bergeron's actions
7
rose to the level of a constitutional violation.
8
that Plaintiff was deprived of a constitutional right, the Court
9
next considers whether Bergeron's conduct was clearly unlawful.
United States District Court
For the Northern District of California
10
However, assuming
Plaintiff alleges that Bergeron searched and arrested him in
11
retaliation for Plaintiff's successful prior lawsuit.7
12
reasons discussed below, the Court concludes that Plaintiff's
13
constitutional rights in such regard were not clearly established
14
at the time of the incident in this case.
15
For the
In April 2006, the United States Supreme Court, in Hartman v.
16
Moore, 547 U.S. 250 (2006), held that the absence of probable cause
17
is an element that plaintiffs are required to prove in First
18
Amendment retaliatory prosecution cases.
19
approximately nine months before the incident in the present case,
20
the Ninth Circuit described the Supreme Court's decision in Hartman
21
as limited to a "particular subcategory of retaliation claims:
22
retaliatory prosecution claims."
Skoog v. County of Clackamas, 469
23
F.3d 1221, 1233 (9th Cir. 2006).
Unlike Hartman, Skoog did not
24
involve a retaliatory prosecution but, instead, involved a
25
retaliatory citation that had been issued to the plaintiff,
In November 2006,
26
27
28
7
As Plaintiff has conceded that Bergeron did not know
Plaintiff's identity prior to asking for Plaintiff's driver's
license, Plaintiff's retaliation claim hinges upon the events that
occurred once Bergeron learned who Plaintiff was.
16
1
allegedly due to the exercise of First Amendment rights.
2
Distinguishing Hartman from Skoog on this ground, the Ninth Circuit
3
held that, "failure to plead and prove probable cause is not
4
dispositive with regard to ordinary retaliation claims."
5
1234.
Id. at
In Skoog, the Ninth Circuit found both strong evidence of
7
retaliatory motive on the part of the defendant and probable cause
8
for the defendant's actions.
9
constitutional right at issue as "the right of an individual to be
10
United States District Court
For the Northern District of California
6
free of police action motivated by retaliatory animus but for which
11
there was probable cause," concluded that the defendant was
12
entitled to qualified immunity:
13
14
15
16
17
18
19
20
21
22
The court, defining the
At the time of the search, the right we have just
defined was far from clearly established in this Circuit
or in the nation. We have decided only today that a
right exists to be free of police action for which
retaliation is a but-for cause even if probable cause
exists for that action. At some future point, this right
will become clearly established in this Circuit. At the
time [the officer] acted, however, the law was far from
clear. Accordingly, even assuming [the officer]'s
primary motivation for seizing Skoog's still camera was
to retaliate for Skoog's exercise of his First Amendment
rights, he violated no clearly established law because
probable cause existed for the search. [The officer] is
thus entitled to qualified immunity under the second
prong of our qualified immunity analysis.
469 F.3d at 1235 (internal footnotes omitted).
Thereafter, in May 2008, the Ninth Circuit noted, in contrast
23
to its statement in Skoog, that Hartman applies equally to First
24
Amendment retaliatory arrest and retaliatory prosecution cases.
25
See Beck v. City of Upland, 527 F.3d 853, 864 (9th Cir. 2008).
26
Subsequently, in December 2008, the Ninth Circuit, in Dietrich v.
27
Ascuaga's Gold Nugget, 548 F.3d 892 (9th Cir. 2008), clarified that
28
the Hartman standard applies only to retaliatory prosecution cases,
17
1
but emphasized that the existence of probable cause has "high
2
probative force" even in "ordinary" retaliation cases not involving
3
a criminal prosecution.
4
Id. at 901.
In the present case, the facts are more like those in Skoog
5
than in Hartman, because Plaintiff was not criminally prosecuted.
6
Moreover, in contrast to both Skoog and Hartman, Bergeron's search
7
of Plaintiff's car and his arrest of Plaintiff did not require
8
probable cause because Plaintiff was a parolee.
It is undisputed that Bergeron did not know Plaintiff's
10
United States District Court
For the Northern District of California
9
identity before speaking with Plaintiff, and that when Plaintiff
11
told Bergeron his name he also informed Bergeron that he was
12
driving without a license and was on parole.
13
probable cause was required for Bergeron to search Plaintiff's car
14
or to arrest Plaintiff upon finding an eight-inch knife in the
15
trunk, a clear violation of parole regulations.
At that point, no
16
Based on the foregoing, the Court concludes that the law with
17
respect to whether Plaintiff had a right to be free of retaliatory
18
police action, where he was in clear violation of parole and there
19
was no requirement of probable cause for his search and arrest, was
20
not clearly established at the time of the events in the present
21
action.
22
motive for the search and arrest, it would not have been clear to a
23
reasonable officer in Bergeron's position that his actions were
24
unlawful.
Consequently, even if Bergeron harbored a retaliatory
Accordingly, Bergeron is entitled to qualified immunity.
25
E.
26
As noted, in his complaint Plaintiff alleged that, in 2007,
27
several members of the OPD retaliated against him because of his
28
prior lawsuit.
Municipal Liability
In the caption of the complaint, Plaintiff
18
1
identified as Defendants "Oakland Police Dept., Officer Bergeron,
2
et al."
3
written on the court's civil rights form, in response to
4
instructions to write the name of each defendant, his or her
5
official position, and his or her place of employment, Plaintiff
6
wrote: "Off. Bergeron Oakland Police Dept. Employed as an Oakland
7
Police Officer."
Compl. at 1.
In the body of the complaint, which was
Compl. at 2:26-3:1.
8
Although the complaint was not ordered served on the OPD, the
9
City of Oakland, as the municipality that encompasses the OPD, has
United States District Court
For the Northern District of California
10
answered the complaint and joins in the motion for summary
11
judgment, arguing that Plaintiff has failed to plead or prove a
12
claim of municipal liability.
13
In opposition to the motion for summary judgment, Plaintiff
14
again identifies the OPD as a Defendant, but does not respond to
15
the argument that his allegations do not state a claim for
16
municipal liability.
17
Local governments are "persons" subject to liability under 42
18
U.S.C. § 1983 where official policy or custom causes a
19
constitutional tort.
20
U.S. 658, 690 (1978).
21
vicariously liable for the unconstitutional acts of its employees
22
under the theory of respondeat superior.
23
Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at
24
691.
25
constitutional rights, a plaintiff must show: (1) that there was a
26
violation of the plaintiff's constitutional rights; (2) "that the
27
municipality had a policy;" (3) that the policy constitutes
28
"deliberate indifference" to the plaintiff's constitutional right;
See Monell v. Dep't of Social Servs., 436
However, a city or county may not be held
See Board of County
To impose municipal liability under § 1983 for a violation of
19
1
and (4) that the policy was the reason for the constitutional
2
violation.
3
F.3d 432, 438 (9th Cir. 1997) (internal citations omitted).
4
Plumeau v. School Dist. No. 40 County of Yamhill, 130
Plaintiff has not alleged facts that identify a policy of the
5
OPD that led to the violation of his constitutional rights.
6
Additionally, where, as here, the conduct of individual employees
7
is found reasonable and proper, the municipality or county cannot
8
generally be held liable, because no constitutional violation
9
occurred.
See Orin v. Barclay, 272 F.3d 1207, 1216-17 (9th Cir.
United States District Court
For the Northern District of California
10
2001) (city not liable for First Amendment infringement when police
11
officers had probable cause to arrest anti-abortion protester for
12
trespass and failure to disperse).
13
Accordingly, to the extent Plaintiff maintains that the OPD,
14
as a municipal department of the City of Oakland, caused the
15
violation of his constitutional rights, the City of Oakland is
16
entitled to summary judgment.
17
CONCLUSION
18
In light of the foregoing, the Court orders as follows:
19
1.
20
21
22
23
24
Plaintiff's motion to compel discovery and stay summary
judgment is DENIED (docket no. 53).
2.
Defendants' motion for summary judgment is GRANTED
(docket no. 30).
3.
The Clerk of the Court shall enter judgment in favor of
all Defendants and close the file.
25
4.
26
IT IS SO ORDERED.
27
DATED:
This Order terminates docket nos. 30 and 53.
9/30/2011
CLAUDIA WILKEN
United States District Judge
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20
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
1
2
3
KEVIN L. HOPKINS,
Case Number: CV09-00722 CW
4
5
6
7
Plaintiff,
CERTIFICATE OF SERVICE
v.
OAKLAND POLICE DEPARTMENT et al,
Defendant.
8
9
United States District Court
For the Northern District of California
10
11
12
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 30, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
13
14
16
Kevin L. Hopkins CC11CZ851
West County Detention Facility
5555 Giant Highway
Richmond, CA 94806
17
Dated: September 30, 2011
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18
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk
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