Barnett v. Martinez et al

Filing 56

ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 47 MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS 52 CROSS-MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 6/24/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 09-5605 CW
SEAN BARNETT,

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ORDER DENYING
PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT AND
GRANTING DEFENDANTS’
CROSS-MOTION FOR
SUMMARY JUDGMENT
(Docket Nos. 47 and
52)

Plaintiffs,
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v.
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SAL MARTINEZ, #782; LEVY BARNES,
#820; CASEY TINLOY, #587; JUSTIN
GEBB, #111; ROBERT ANDERSON, #787;
CYNTHIA VERBIS, #800,

United States District Court
For the Northern District of California

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Defendants.
/

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Plaintiff Sean Barnett alleges that Defendants Sal Martinez,

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Casey Tinloy, Justin Gebb, Robert Anderson and Cynthia Verbis

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violated his civil rights by arresting him without probable cause.1

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Plaintiff moves for partial summary judgment.

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his motion and cross-move for summary judgment.

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Defendants’ motion with respect to his section 1983 claim against

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Martinez, Gebb and Anderson for his alleged arrest without probable

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cause and his related state law claims against them.

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does not oppose summary judgment on his section 1983 claim against

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Martinez, Gebb and Anderson, to the extent it was based on other

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grounds, or his claims against Tinloy and Verbis.

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heard on June 23, 2011.

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papers submitted by the parties, the Court DENIES Plaintiff’s

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motion for partial summary judgment and GRANTS Defendants’ cross-

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motion for summary judgment.

Defendants oppose
Plaintiff opposes

Plaintiff

The motions were

Having considered oral argument and the

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1

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On May 25, 2011, Plaintiff dismissed with prejudice his
claims against Levy Barnes. (Docket No. 51.)

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BACKGROUND

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On the evening of August 16, 2008, Plaintiff was holding “Club

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Flirt,” his adult-oriented event, at 1188-1190 Folsom Street in San

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Francisco.

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patrons and collecting admission fees.

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California Department of Alcoholic Beverage Control (ABC) District

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Administrator Gebb, along with two other ABC investigators, began

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an undercover investigation into potential alcoholic beverage

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license violations in the building in which Club Flirt was being

Plaintiff worked as the doorman for the event, greeting
At around 10:25 p.m.,

United States District Court
For the Northern District of California

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held.

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ABC Investigators Martinez, Anderson and Tinloy were stationed

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outside, awaiting orders from Gebb.

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As District Administrator, Gebb was the ranking officer.

After observing purported violations, at approximately 12:30

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a.m., Gebb directed Martinez, Anderson and Tinloy to enter the

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building.

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marked “POLICE” on the back.

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escorted him up a flight of stairs to the second floor of the

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building.

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at the top of the stairs.

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was Anderson who frisked him.

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Martinez, Anderson and Tinloy wore jackets or vests
Anderson detained Plaintiff and

Plaintiff asserts that he was frisked at the bottom and
He does not contend, however, that it

Anderson took Plaintiff to a room located in the front of the

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second floor, in which Plaintiff and other individuals waited until

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they were called for an interview with Tinloy in another room.

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Anderson directed Plaintiff to sit in a chair that was placed up

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against a wall and at a ninety-degree angle to a sofa.

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was flush against the corner of the room.

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ABC investigator assigned to watch the room.

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Plaintiff in the room, Anderson left for approximately thirty
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The sofa

Anderson was the only
After placing

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seconds to one minute.2

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under investigation, Patrick Au, whom Anderson instructed to sit in

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a corner opposite to where Plaintiff sat.

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second time, leaving Plaintiff and Au unattended.

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Anderson saw Plaintiff out of his chair and speaking Au.

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instructed Plaintiff to return to his assigned corner.

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He then returned with another individual

Upon returning,
Anderson

Thereafter, Tinloy called Plaintiff for his interview and

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escorted him to the interview room.

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Plaintiff asked to use the restroom.

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United States District Court
For the Northern District of California

Anderson then left for a

after searching him.

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As they were walking,
Tinloy permitted him to do so

interview.

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Plaintiff left the premises after his

After all non-ABC personnel had left the building, Gebb

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instructed Martinez to conduct a final sweep of the building.

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Martinez searched the front room in which Plaintiff and the other

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individuals waited.

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which Plaintiff sat, Martinez discovered a .25 caliber pistol in an

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ankle holster.

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easier for somebody to conceal” the gun.

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Martinez Depo. 80:4-8.

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the sofa, and Anderson informed Martinez that Plaintiff sat near

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that area.

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had dropped a gun.

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search of the gun’s serial number, which revealed that it was

Upon moving the sofa adjacent to the chair in

Martinez believed that the ankle holster made “it
Gower Decl., Ex. J,

The gun was located between the wall and

Martinez asked the other ABC investigators whether they
Everyone responded, “no.”

Martinez conducted a

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At the hearing on the motion, Plaintiff asserted that an ABC
officer was always present in the front room. This contention is
not supported. Plaintiff testified at his deposition that
unidentified ABC officers accompanied him into the room. However,
there is no evidence that the ABC officers remained in the room at
all times. Thus, Anderson’s testimony that Plaintiff was left
unattended at times is undisputed.
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registered to Plaintiff.
Gebb instructed Martinez and Anderson to arrest Plaintiff, who

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was located outside the building.

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and brought him back to the second floor.

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Plaintiff, and Martinez advised Plaintiff of his Miranda rights.

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Plaintiff indicated that he was willing to talk.

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Anderson handcuffed Plaintiff
Anderson searched

Martinez asked Plaintiff whether he owned a gun.

Plaintiff

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responded, “yes,” and stated that, the last time he saw it, it was

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in his duffel bag, which he had placed on his desk at the top of

United States District Court
For the Northern District of California

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the stairs.

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gun came to be in the front room, that he did not permit anyone

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that night to borrow his gun and that he did not know if anyone

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knew that he had a gun in his duffle bag.

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Plaintiff also indicated that he did not know how his

At around 3:30 a.m. on August 17, 2008, Martinez transported

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Plaintiff to the San Francisco County Jail.

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for carrying a concealed weapon in violation of California Penal

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Code section 12025(a)(2).

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Office declined to charge Plaintiff.

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Plaintiff was booked

The San Francisco District Attorney’s

At his deposition, Plaintiff testified that Defendants did not

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physically injure him.

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emotional distress.

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He claims, however, that he suffered

LEGAL STANDARD
Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
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Fed. R. Civ. P.

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1987).
The moving party bears the burden of showing that there is no

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material factual dispute.

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the opposing party's evidence, if supported by affidavits or other

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evidentiary material.

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F.2d at 1289.

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favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d

United States District Court
For the Northern District of California

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Therefore, the court must regard as true

Celotex, 477 U.S. at 324; Eisenberg, 815

The court must draw all reasonable inferences in

1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

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are material.

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(1986).

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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 on an

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issue at trial, the moving party may discharge its burden of

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production by either of two methods:

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The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may show that
the nonmoving party does not have enough evidence of an
essential element of its claim or defense to carry its
ultimate burden of persuasion at trial.

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Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d
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1099, 1106 (9th Cir. 2000).
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If the moving party discharges its burden by showing an
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absence of evidence to support an essential element of a claim or
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defense, it is not required to produce evidence showing the absence
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of a material fact on such issues, or to support its motion with
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evidence negating the non-moving party’s claim.

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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Bhan v.

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NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

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moving party shows an absence of evidence to support the non-moving

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party’s case, the burden then shifts to the non-moving party to

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produce “specific evidence, through affidavits or admissible

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discovery material, to show that the dispute exists.”

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F.2d at 1409.

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Id.; see also

If the

Bhan, 929

If the moving party discharges its burden by negating an

United States District Court
For the Northern District of California

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essential element of the non-moving party’s claim or defense, it

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must produce affirmative evidence of such negation.

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F.3d at 1105.

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burden then shifts to the non-moving party to produce specific

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evidence to show that a dispute of material fact exists.

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Nissan, 210

If the moving party produces such evidence, the

Id.

If the moving party does not meet its initial burden of

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production by either method, the non-moving party is under no

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obligation to offer any evidence in support of its opposition.

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This is true even though the non-moving party bears the ultimate

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burden of persuasion at trial.

Id.

Id. at 1107.

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DISCUSSION

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Because Plaintiff does not oppose it, summary judgment is

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granted in favor of Tinloy and Verbis on Plaintiff’s claims against

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them.

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Plaintiff’s section 1983 claim against Gebb, Martinez and Anderson,

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to the extent it is based on alleged misconduct other than his

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purported arrest without probable cause.

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Additionally, Defendants’ motion is granted with respect to

Plaintiffs’ remaining claims are against Gebb, Martinez and
Anderson for: (1) deprivation of his Fourth Amendment rights
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through his alleged arrest without probable cause, in violation of

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42 U.S.C. § 1983; (2) false imprisonment; (3) intentional

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infliction of emotional distress; (4) negligence; (5) assault and

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battery; and (6) violation of California Civil Code section 52.1.

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Plaintiff does not dispute that, to avoid summary judgment on these

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claims, he must demonstrate a genuine issue of material fact with

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respect to whether Gebb, Martinez and Anderson had probable cause

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to arrest him.

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The Fourth Amendment requires law enforcement officers to have

United States District Court
For the Northern District of California

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probable cause to make warrantless arrests.

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Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2008).

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to arrest exists when officers have knowledge or reasonably

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trustworthy information sufficient to lead a person of reasonable

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caution to believe that an offense has been or is being committed

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by the person being arrested.”

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quotation marks omitted).

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not necessary to establish probable cause, mere suspicion, common

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rumor, or even strong reason to suspect are not enough.”

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(citation and internal quotation and editing marks omitted).

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Id.

Ramirez v. City of
“Probable cause

(citation and internal

“While conclusive evidence of guilt is

Id.

Gebb, Martinez and Anderson claim that they have qualified

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immunity from Plaintiff’s claims because reasonable officers

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confronted with the same situation would have believed that

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probable cause existed to arrest him.

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inquiry asks two questions: (1) was there a violation of a

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constitutional right, and, if so, then (2) was the right at issue

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‘clearly established’ such that it would have been clear to a

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reasonable officer that his conduct was unlawful in that

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situation?”

“The qualified immunity

Brooks v. City of Seattle, 599 F.3d 1018, 1022 (9th
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Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)).

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If officers’ “actions reflected a reasonable mistake about what the

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law requires, they are entitled to qualified immunity.”

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599 F.3d at 1022 (citing Blankenhorn v. City of Orange, 485 F.3d

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463, 471 (9th Cir. 2007)).

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Brooks,

Plaintiff was arrested pursuant to California Penal Code

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section 12025(a)(2), which provides that a “person is guilty of

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carrying a concealed firearm when he or she . . . [c]arries

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concealed upon his or her person any pistol, revolver, or other

United States District Court
For the Northern District of California

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firearm capable of being concealed upon the person.”

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Martinez and Anderson arrested Plaintiff, they and Gebb knew the

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following facts.

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Second, the gun was in an ankle holster, which Martinez believed

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made it easier to conceal the gun.

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adjacent to where Plaintiff was sitting as he awaited his

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interview.

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an adult-oriented event, which led Anderson to believe that

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Plaintiff was armed.

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room inside the premises, but was left unattended for certain

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periods while he waited in the front room.

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when viewed together, permit a reasonable inference that Plaintiff

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carried a concealed weapon.

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arrest.

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At the time

First, the gun was registered to Plaintiff.

Third, the gun was found

Fourth, Plaintiff was handling money as the doorman for

Fifth, Plaintiff was escorted from room-to-

These undisputed facts,

Thus, probable cause supported his

Plaintiff insists that these facts were consistent with his

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innocence.

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first investigate whether the front room had been searched before

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he was placed in it or whether he had been frisked.

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test for probable cause “‘is not whether the conduct under question

He complains that Gebb, Martinez and Anderson did not

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However, the

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is consistent with innocent behavior; law enforcement officers do

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not have to rule out the possibility of innocent behavior.’”

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Ramirez, 560 F.3d at 1024 (quoting United States v. Thomas, 863

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F.2d 622, 627 (9th Cir. 1988)).

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facts, ignored by Gebb, Martinez and Anderson, that tended to

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suggest that he did not commit the crime.

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could have investigated further does not vitiate probable cause.

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See John v. City of El Monte, 515 F.3d 936, 941-42 (9th Cir. 2008).

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Plaintiff does not identify any

That these Defendants

Because Gebb, Martinez and Anderson did not commit a

United States District Court
For the Northern District of California

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constitutional violation, they are qualifiedly immune from

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liability on Plaintiff’s section 1983 claim.

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Plaintiff’s constitutional rights, Gebb, Martinez and Anderson

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nevertheless would enjoy qualified immunity because they did not

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act unreasonably.

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Plaintiff, that it was found in an ankle holster that could have

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facilitated the gun’s concealment on a person, that it was secreted

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adjacent to where he was sitting, that he was serving in a role

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that made it likely he was armed, and that he was left unattended

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for some period of time would have led reasonable officers to

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believe they had probable cause to arrest him.

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Even if they violated

The facts that the gun was registered to

Accordingly, there is not a material factual dispute as to

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whether Gebb, Martinez and Anderson had probable cause to arrest

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Plaintiff, and summary judgment in their favor is appropriate on

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his claims against them under section 1983 and California Civil

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Code section 52.1, which prohibits interference with an

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individual’s constitutional rights.

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material factual dispute regarding whether there was a

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constitutional violation, Gebb, Martinez and Anderson are entitled
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Further, because there is no

to qualified immunity.

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Martinez and Anderson would nevertheless enjoy qualified immunity

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because a reasonable officer could have believed that their actions

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were lawful under the circumstances.

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Martinez’s and Anderson’s favor is likewise appropriate on

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Plaintiff’s claims for false imprisonment, negligence and assault

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and battery.

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934, 947-48 (2004) (concluding that summary judgment is appropriate

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on such claims in the absence of a triable issue with respect to

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United States District Court
For the Northern District of California

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probable cause); see also Cal. Pen. Code § 847(b)(1) (precluding

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liability for false imprisonment when officer “had reasonable cause

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to believe arrest was lawful”).

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Gebb, Martinez and Anderson engaged in extreme and outrageous

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conduct or that Plaintiff suffered severe or extreme emotional

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distress, summary judgment in their favor is also warranted on

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Plaintiff’s claim for intentional infliction of emotional distress.

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See Catsouras v. Dep’t of Cal. Highway Patrol, 181 Cal. App. 4th

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856, 874 (2010) (listing elements for tort).

Even if there were a triable issue, Gebb,

Summary judgment in Gebb’s,

See Salazar v. Upland Police Dep’t, 116 Cal. App. 4th

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Because there is no evidence that

CONCLUSION

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For the foregoing reasons, the Court DENIES Plaintiff’s motion

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for partial summary judgment (Docket No. 47) and GRANTS Defendants’

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cross-motion for summary judgment (Docket No. 52).

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The Clerk shall enter judgment accordingly and close the file.
The parties shall bear their own costs.
IT IS SO ORDERED.

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Dated: 6/24/2011
CLAUDIA WILKEN
United States District Judge

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