Hopkins v. Oakland Police Dept et al

Filing 58


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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 KEVIN L. HOPKINS, 7 8 9 United States District Court For the Northern District of California 10 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. 11 12 No. C 09-0722 CW (PR) ________________________________/ 13 INTRODUCTION 14 Plaintiff Kevin L. Hopkins, a state prisoner currently 15 incarcerated at the West County Detention Facility in Richmond, 16 California, brought this pro se civil rights action pursuant to 42 17 U.S.C. § 1983 alleging that, in 2007, several members of the 18 Oakland Police Department (OPD) violated his First Amendment right 19 of access to the courts by retaliating against him for successfully 20 settling, in 2006, a prior action he brought against the OPD, OPD 21 Police Chief Richard Word, and OPD officers I. Padilla and B. Ko 22 for misconduct.1 23 The Court conducted an initial screening of the present 24 complaint pursuant to 28 U.S.C. § 1915A(a) and found cognizable 25 Plaintiff's retaliation claim against OPD Officer William Bergeron. 26 Additionally, the Court dismissed Plaintiff's retaliation claims 27 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 2 he could file a motion to amend the complaint should he learn the 3 identities of those officers. 4 Plaintiff has not done so. Now pending before the Court is the motion for summary 5 judgment filed by Defendant Bergeron and Defendant City of Oakland, 6 the municipal entity that encompasses the OPD.2 7 opposed the motion and Defendants have filed a reply. 8 is Plaintiff's motion to compel discovery and stay summary 9 judgment. United States District Court For the Northern District of California 10 11 14 Also pending For the reasons discussed below, the Court DENIES Plaintiff's motions, and GRANTS the motion for summary judgment. 12 13 Plaintiff has BACKGROUND I. Plaintiff's Facts The following facts are derived from the allegations in 15 Plaintiff's verified complaint (docket no. 1) and Plaintiff's 16 verified declaration filed in support of his opposition to the 17 motion for summary judgment (docket no. 54). 18 On August 17, 2007, Plaintiff was driving in Oakland and came 19 to a stop at a red flashing light at 27th and Market streets.3 20 While stopped, to his left he noticed a marked police car at a 21 22 23 24 25 26 27 28 2 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. 2 1 complete stop. 2 right of way, to proceed; when it did not, Plaintiff made a right 3 turn. 4 Plaintiff waited for the police car, which had the Once Plaintiff's right turn was completed, the police car 5 turned on its red flashing lights. 6 right, coming to a complete stop. 7 police car with their revolvers drawn. 8 and asked Plaintiff if he had his driver's license. 9 responded that he did not, and told Bergeron his date of birth, United States District Court For the Northern District of California 10 Plaintiff pulled over to his Two officers exited from the Bergeron approached the car Plaintiff license number and name. 11 Bergeron then asked Plaintiff, "How did you buy this brand new 12 car by lying on good police officers?" and said, "[Y]our lying 13 black ass is going back to prison." 14 to Plaintiff before Bergeron searched Plaintiff's car. 15 Bergeron made these statements Bergeron next opened the trunk of the car, which was filled 16 with cooking utensils. 17 Plaintiff's family member borrowed the car. 18 that the utensils had been left in the trunk. 19 The utensils had been placed there when Plaintiff was unaware Plaintiff did not have drugs on his person or in his car. 20 However, Bergeron planted drugs in the car, which resulted in 21 Plaintiff's being charged with possession of crack cocaine. 22 charges were later dismissed. 23 II. 24 25 The Defendant Bergeron's Facts The following facts are derived from Bergeron's declaration and supporting exhibits (docket nos. 31, 32).4 26 4 27 28 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. 3 1 On August 17, 2007, at approximately 8:00 a.m., Bergeron and 2 his partner Officer Vallimont were on patrol in the area of 27th 3 and Market Streets in Oakland. 4 26th Street at Market Street. 5 approaching the intersection of 27th and Market traveling 6 northbound on Market. The intersection was clearly marked for 7 northbound, southbound, eastbound and westbound traffic. 8 9 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. 11 miles per hour and turn eastbound on 27th, failing to come to a 12 complete stop before making the turn on red. 13 Bergeron observed the Corolla slow to approximately five As Bergeron entered the intersection (eastbound 26th Street at 14 Market), the driver of the Corolla, later identified as Plaintiff, 15 began to turn in front of Bergeron’s vehicle and Bergeron had to 16 quickly brake to avoid a collision with him. 17 Bergeron noted that the Corolla had no rear license plate. 18 that point, Bergeron conducted a traffic stop for making a right 19 turn on red, failing to yield to a vehicle with the right of way 20 At and failing to have two license plates as required. 21 When Bergeron requested Plaintiff's driver's license, 22 Plaintiff informed Bergeron that he did not have one. 23 Plaintiff identified himself using a California Department of 24 Corrections and Rehabilitation (CDCR) identification card and 25 informed Bergeron that he was on parole. 26 Instead, Bergeron then conducted a parole search of Plaintiff and the 27 vehicle. 28 side floorboard a folded one dollar bill containing suspected rock During the search, Bergeron recovered from the driver's 4 1 cocaine. 2 knife and a piece of paper with Plaintiff's name on it. 3 He also recovered from the spare tire compartment a large Plaintiff was arrested for possession of narcotics and 4 violation of parole. 5 responded and approved the arrest. 6 front passenger, Williams, was arrested on a parole warrant. 7 Bergeron's superior officer, Sgt. Ferguson, Additionally, Plaintiff's right Bergeron was not aware that Plaintiff had been involved in a 8 prior lawsuit against the City of Oakland, and did not discuss any 9 lawsuits with him. United States District Court For the Northern District of California 10 On August 20, 2007, the Alameda County District Attorney's 11 Office filed a criminal complaint against Plaintiff for felony 12 possession of a controlled substance in violation of Health and 13 Safety Code Section 11350(a). 14 court granted the District Attorney's motion to dismiss the case in 15 the interest of justice, and Plaintiff was released as to that 16 action only. 17 18 19 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 20 filed his motion for summary judgment, Plaintiff moved for an 21 extension of time to file opposition to Bergeron's motion and to 22 stay Bergeron's motion on the ground Plaintiff had not had adequate 23 opportunity to engage in discovery to oppose Bergeron's motion. 24 The Court granted Plaintiff's request for an extension of time to 25 oppose the motion for summary judgment, but denied Plaintiff's 26 request for a stay, ruling as follows: 27 28 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 5 1 order to find witnesses who viewed Defendant's alleged retaliatory acts against Plaintiff. 2 3 4 5 6 7 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). 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 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 20 renewed his request to stay Bergeron's motion for summary judgment. 21 In his motion, Plaintiff asserts that he requested discovery from 22 Bergeron in January and February of 2011 concerning documentation 23 of racially-biased statements allegedly made by Bergeron to 24 African-Americans and other evidence generally supporting 25 Plaintiff's claims, but Bergeron objected to providing such 26 discovery. 27 discovery requests to Bergeron, Bergeron's responses thereto, or 28 evidence of any attempt by Plaintiff to meet and confer with Plaintiff has not provided the Court with copies of his 6 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 4 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. 7 As Bergeron never was put on notice in the complaint that he was 8 being charged with racial bias, the Court finds Plaintiff's 9 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 14 instant claim against Bergeron. 15 has not provided the Court with copies of his discovery requests to 16 Bergeron and Bergeron's objections thereto, and he has not verified 17 that he attempted to meet and confer with Bergeron prior to filing 18 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. 20 Accordingly, Plaintiff's motion to compel is DENIED. 21 Additionally, Plaintiff's renewed request for a stay of 22 Bergeron's summary judgment motion is DENIED for the reasons set 23 forth in the Court's Order of July 12, 2011 denying Plaintiff's 24 previous request for such a stay. 25 II. Defendant Bergeron's Motion for Summary Judgment 26 A. 27 Summary judgment is properly granted when no genuine and 28 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." 28 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 16 Plaintiff in his declaration. 17 Accordingly, these documents may be Bergeron, however, First, Bergeron objects that Plaintiff's testimony, at ¶¶ 12- 18 14 of Plaintiff's declaration, that Plaintiff was a target of 19 "unprovoked pull over stops," body-cavity searches and other 20 allegedly unlawful acts by unidentified OPD officers on unspecified 21 dates and not involving Bergeron is irrelevant to whether Bergeron 22 violated Plaintiff's First Amendment rights with respect to the 23 events at issue in the present action because the Court previously 24 dismissed all of Plaintiff's claims against unnamed Defendants. 25 Second, Bergeron objects that Plaintiff's testimony, at ¶¶ 15- 26 16, 20 of Plaintiff's declaration, that the CDCR Department of 27 Internal Affairs denied Plaintiff's request for information 28 concerning the actions of unnamed OPD officers described above also 9 1 is irrelevant, is hearsay and lacks foundation. 2 Plaintiff has not responded to Bergeron's objections. 3 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. 18 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. 27 28 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 16 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 19 failed to raise a reasonable inference that Bergeron's stop of 20 Plaintiff was retaliatory. 21 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 24 5 25 26 27 28 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. 11 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.” 5 statement Plaintiff makes in reference to Bergeron's evidence is 6 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 11 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 28 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 15 18 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 21

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