Dean v. Contra Costa County Superior Court, Martinez

Filing 45

ORDER re 16 MOTION for Summary Judgment filed by Richard Oneal Dean, ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 2/21/13. (lrc, COURT STAFF) (Filed on 2/22/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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10 RICHARD O’NEAL DEAN,

Plaintiff,

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vs.

13 OFFICER TIM ALLEN, et al.,

Case No: C 11-1098 SBA (pr)
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Dkt. 29

Defendants.

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Plaintiff Richard O’Neal Dean, a former state prisoner, has filed a pro se civil rights

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action, pursuant to 42 U.S.C. § 1983, in which he alleges that his Fourth Amendment rights

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were violated during the course of a traffic stop which occurred on October 21, 2005. The

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named defendants are Contra Costa County Sheriff’s Deputies David Hall and Tim Allen.

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The parties are presently before the Court on Defendants’ Motion for Summary Judgment.

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Dkt. 29. The motion is unopposed. Having read and considered the papers filed in

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connection with this matter and being fully informed, the Court hereby GRANTS the

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motion for the reasons set forth below. The Court, in its discretion, finds this matter

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suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ.

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L.R. 7-1(b).

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I.

BACKGROUND
A.

FACTUAL SUMMARY
1.

The Traffic Stop

On Thursday, October 21, 2005, Deputy Hall, accompanied by his partner, Deputy

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Westerman, was patrolling the streets of Bay Point in a marked vehicle. Hall Decl. ¶¶ 2, 3,

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Dkt 30. At approximately 3:54 p.m., Deputy Hall observed a white Oldsmobile Silhouette

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minivan with darkly-tinted windows and expired registration tabs turn left onto Willow

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Pass Road. Id. ¶ 4. Deputy Hall followed the vehicle, activated his lights and flashers, and

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initiated a traffic stop based on the lack of a registration tab. Id. Due to the minivan’s

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tinted windows, Deputy Hall did not observe a temporary operating permit in the rear

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window of the vehicle. Id. ¶ 5.

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After pulling the vehicle over, Deputy Hall made contact with the driver, who was

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later identified as the Plaintiff. Id. ¶ 6. Deputy Hall asked Plaintiff to present his driver’s

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license and the registration for the vehicle. Plaintiff responded that his license was

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suspended or revoked. Id. ¶ 7. Because driving without a license is a violation of

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California Vehicle Code section 14601.1(a), Deputy Hall decided to detain Plaintiff and

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arrest him for that offense. Id. Deputy Hall observed that Plaintiff’s hands were shaking

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and that he frequently broke eye contact and appeared to be nervous. Id. ¶ 9. Deputy Hall

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inquired whether he had anything illegal on his person. Id. ¶ 10. Plaintiff replied that he

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did not. Id. Deputy Hall then asked Plaintiff if he would “mind if I searched his person

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and his vehicle.” Id. Plaintiff replied, “no,” exited the vehicle and turned to face away

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from Deputy Hall with his hands in the air. Id.

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Deputy Hall conducted a search of Plaintiff’s person and found a clear plastic baggy

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which contained a piece of an off-white rock substance which appeared to Deputy Hall to

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be rock cocaine. Id. ¶ 11. Deputy Hall placed the baggy containing the substance on the

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roof of the van and told Plaintiff to put his hands behind his back. Id. ¶¶ 11, 12. Plaintiff

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initially complied, but then, as Deputy Hall reached for his handcuffs, Plaintiff broke free

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of Deputy Hall’s grip, grabbed the baggy, threw it toward a woman (later identified as
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Plaintiff’s wife) standing in the parking lot and yelled for her to dispose of it. Id. ¶¶ 12, 13.

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The baggy was secured by a local security officer and Plaintiff was eventually placed in

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handcuffs. Id. ¶ 14.

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After Plaintiff was secured, a further search of his person revealed a round plastic

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container of Icebreaker Mints which held thirty-three baggies containing an off-white

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substance that appeared to be rock cocaine. Id. ¶ 15. Plaintiff also was found to be in

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possession of marijuana and $320.00 in cash. Id. ¶ 16. Deputy Hall informed Plaintiff that

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he was arresting him on the following charges: (1) driving without a valid license, Cal.

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Veh. Code § 14601.1(a); (2) resisting an officer in the performance of his duties, Cal. Pen.

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Code § 148; and (3) possession of illegal drugs for sale, Cal. Health and Safety Code §§

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11351.5, 11352. Id. ¶ 17.

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2.

Motion to Suppress and Conviction

After Plaintiff was criminally charged, he filed a motion to suppress the contraband

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Deputy Hall had seized on the ground that the original traffic stop was made without

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probable cause. At the suppression hearing, the parties agreed that Plaintiff’s minivan had

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expired registration tabs, but that a temporary operating permit issued by the Department of

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Vehicles was displayed on the minivan’s rear window. However, the Court credited

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Deputy Hall’s testimony that he did not actually see the permit mounted inside of the

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minivan’s rear window. The trial court noted that the temporary operating permit was

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difficult to observe through the dirty, reflective glass and that it was not in its required

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location in the lower right corner of the rear window. Thereafter, Plaintiff pled no contest

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pursuant to a negotiated disposition and appealed the denial of his motion to suppress to the

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California Court of Appeal.

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Court of Appeal’s Reversal of the Conviction

On December 21, 2007, the California Court of Appeal reversed Plaintiff’s

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conviction, holding that the State had failed to meet its burden of proving that there was an

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articulable and reasonable suspicion that Plaintiff committed a traffic violation based on the

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facts and circumstances known to the officer at the time of the traffic stop. See People v.
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Dean, 69 Cal. Rptr. 3d 770 (2009). In reaching its decision, the court of appeal noted that

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“[Deputy] Hall needed to look for a temporary operating permit as he followed the minivan

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in order to be able to form a reasonable suspicion that the minivan was not properly

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registered.” Id. at 780. The court noted that Deputy Hall made no effort to look for a

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temporary permit, and admitted that he would have stopped the van even if he had seen

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one. Id. In addition, the court found that the evidence that the temporary permit was

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obscured was inconsequential without “the prosecution establishing that Hall at least

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attempted to look for the temporary operating permit in the first place.” Id. at 782.

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On April 21, 2009, the Contra Costa County Superior Court issued an order

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dismissing the criminal charges against Plaintiff. Comp. Ex. 1. The dismissal order stated

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that, pursuant to the Court of Appeal’s decision, all evidence seized in the search of the

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minivan was suppressed and that the district attorney had concluded that it could not

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proceed against Plaintiff without the suppressed evidence. Id.

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B.

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On March 8, 2011, Plaintiff filed the instant action in this Court against Deputy Hall

PROCEDURAL HISTORY

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and Deputy Allen. On June 13, 2012, Defendants filed a motion for summary judgment.

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Dkt. 29.1 Plaintiff failed to file a response within sixty days of the filing of the motion, as

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required by the Court’s Order of Service. Dkt. 21. Thus, on September 24, 2012, the Court

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issued an order providing Plaintiff with additional instructions for opposing Defendants’

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summary judgment motion, and directed Plaintiff to file his opposition by October 22,

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2012. Dkt. 41. To date, however, Plaintiff has not filed an opposition. Briefing on the

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motion is now closed and the motion is now ripe for adjudication.

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II.

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LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that a party may move for summary

judgment on some or all of the claims or defenses presented in an action. Fed. R. Civ. P.

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At the time Plaintiff filed his complaint, he was incarcerated at San Quentin State
Prison. Dkt. 1. On May 22, 2012, Plaintiff filed a notice of change of address, which
indicated a new mailing address in Pittsburg, California. Dkt. 28. Defendants served their
28 motion papers on Plaintiff at his new address. Dkt. 36.
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56(a)(1). “The court shall grant summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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law.” Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The movant

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bears the initial burden of demonstrating the basis for the motion and identifying the

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portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions

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on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts

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of materials in the record”). If the moving party meets this initial burden, the burden then

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shifts to the non-moving party to present specific facts showing that there is a genuine issue

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for trial. See Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586-87 (1986).

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“On a motion for summary judgment, ‘facts must be viewed in the light most

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favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.’”

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Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009) (quoting in part Scott v. Harris, 550 U.S.

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372, 380 (2007)). “Only disputes over facts that might affect the outcome of the suit under

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the governing law will properly preclude the entry of summary judgment. Factual disputes

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that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. A

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factual dispute is genuine if it “properly can be resolved in favor of either party.” Id. at

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250. Accordingly, a genuine issue for trial exists if the non-movant presents evidence from

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which a reasonable jury, viewing the evidence in the light most favorable to that party,

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could resolve the material issue in his or her favor. Id. “If the evidence is merely

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colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-

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50 (internal citations omitted). Only admissible evidence may be considered in ruling on a

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motion for summary judgment. Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).

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III.

DISCUSSION

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A.

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To establish individual liability under § 1983, “a plaintiff must plead that each

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DEPUTY ALLEN

Government-official defendant, through the official’s own individual actions, has violated
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the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). “Liability under section

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1983 arises only upon a showing of personal participation by the defendant.” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A plaintiff must allege facts, not simply

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conclusions, that show that an individual was personally involved in the deprivation of his

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civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Here, the

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uncontroverted evidence demonstrates that, at the time of the traffic stop, Deputy Allen was

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in Idaho. Since Deputy Allen was not present in California at the time of the incident, it

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follows then that he could not have personally participated in the traffic stop that forms the

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basis of the action. Accordingly, Defendants’ motion for summary judgment as to Deputy

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Allen is GRANTED.

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B.

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Alternatively, Defendants argue that they are entitled to qualified immunity.

QUALIFIED IMMUNITY

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Qualified immunity protects officers from liability for civil damages where their alleged

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unconstitutional conduct does not violate a clearly established right. Hope v. Pelzer, 536

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U.S. 730, 739 (2002). An officer is entitled to qualified immunity unless (1) facts viewed

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in the light most favorable to the injured party show that the officer violated a constitutional

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right and (2) the right was clearly established at the time of the alleged misconduct.

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Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, 555 U.S. 223,

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233 (2009)). A court may dispose of a qualified immunity issue by addressing step two,

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without first addressing step one. Pearson, 555 U.S. at 236. With respect to whether a right

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was “clearly established,” the Supreme Court has counseled that the “[t]he contours of the

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right must be sufficiently clear that a reasonable official would understand that what he is

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doing violates that right.” Saucier, 533 U.S. at 202 (internal quotations and citation

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omitted).

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Here, the Court finds that the right asserted by Plaintiff was not clearly established at

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the time of the traffic stop in 2005. It has long been the rule that a law enforcement official

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may conduct a traffic stop based on a traffic violation. See Whren v. United States, 517

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U.S. 806, 810 (1996). The absence of a registration tab on a rear license plate is a violation
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of the California Vehicle Code2 and may therefore justify an investigatory stop. See

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Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (noting that expired registration tags

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justified initial stop). The Court of Appeal presiding over Plaintiff’s appeal recognized as

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much, but held that the State could not show that the deputies had a reasonable suspicion

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upon which to stop the Plaintiff under the specific circumstances presented; i.e., the lack of

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evidence that Deputy Hall looked for a temporary permit before making the stop, coupled

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with his admission that he would have stopped Plaintiff’s vehicle regardless of whether he

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saw a temporary permit. Dean, 69 Cal. Rptr. 3d at 779.

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Irrespective of the Court of Appeal’s decision on Plaintiff’s motion to suppress, it is

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readily apparent that, at the time of the incident, the law regarding an officer’s obligation to

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look for a temporary operating permit (in the absence of a vehicle’s registration tab) was

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not clearly established. See People v. Saunders, 38 Cal.4th 1129, 1135 (2006) (“we have

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not yet decided whether an officer may stop a vehicle that has an expired registration tab

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but also displays a temporary operating permit.”). Indeed, it was not until 2008, several

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years after the underlying incident, that the California Supreme Court first held that an

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officer may not disregard a temporary permit in the course of ascertaining whether there is

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reasonable suspicion to conduct an investigatory stop. See People v. Hernandez, 45 Cal.4th

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295, 297 (2008) (“An officer who sees a vehicle displaying a temporary operating permit in

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lieu of license plates may not stop the vehicle simply because he or she believes that such

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permits are often forged or otherwise invalid. To support a stop the officer must have a

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reasonable suspicion that the particular permit is invalid.”). Thus, the Court is persuaded

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that the law regarding an officer’s duty to ascertain whether a vehicle with missing

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registration tabs had a temporary operating permit before conducting a traffic stop was not

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clearly established as of October 21, 2005, such that a reasonable officer would not know

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California Vehicle Code section 4000(a)(1) requires a vehicle operating on the
public highway be currently registered. Vehicle Code section 4601(a) requires the
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Vehicle Code section 5204(a) requires current registration tags to be displayed on the rear
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that disregarding the potential presence of a temporary permit in lieu of a missing

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registration tab would violate the Fourth Amendment. See Ashcroft v. al-Kidd, 131 S.Ct.

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2074, 2083 (2011) (“existing precedent must have placed the statutory or constitutional

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question beyond debate.”) (emphasis added).3

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IV.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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1.

Defendants’ motion for summary judgment is GRANTED.

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2.

The Clerk shall enter judgment for Defendants, close the file, and terminate

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any pending matters.
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For the reasons stated above, the Court certifies that any appeal from this

decision would not be in good faith within the meaning of 28 U.S.C. § 1915(a)(3).

IT IS SO ORDERED.
Dated: February 21, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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In light of the Court’s conclusion that Defendants are entitled to qualified
immunity, the Court does not reach their contention that Plaintiff’s claims are barred by the
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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RICHARD ONEAL DEAN,
Plaintiff,

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v.
CONTRA COSTA COUNTY SUPERIOR
COURT et al,
Defendant.
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Case Number: CV11-01098 SBA

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CERTIFICATE OF SERVICE

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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 February 22, 2013, 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.

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Richard Oneal Dean
2262 Concord Dr.
Pittsburg, CA 94565

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Dated: February 22, 2013

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\CR.11\11-1098 - Dean - Order Granting MSJ.docx

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