Puentes v. County of Santa Clara et al

Filing 48

ORDER by Judge Hamilton Granting 40 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 1/26/2012)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 BENJAMIN PUENTES, Plaintiff, 9 v. ORDER GRANTING MOTION TO DISMISS 11 For the Northern District of California United States District Court 10 No. C 11-1228 PJH COUNTY OF SANTA CLARA, et al., 12 Defendants. _______________________________/ 13 14 Defendants’ motion to dismiss plaintiff’s first amended complaint came on for 15 hearing on January 11, 2011 before this court. Plaintiff Benjamin Puentes (“plaintiff”) 16 appeared pro se. Defendants County of Santa Clara (the “County”), Michael Powers 17 (“Powers”), Jim Tashis (“Tashis”), and Dana Overstreet (“Overstreet”)(collectively 18 “defendants”), appeared through their counsel, David Rollo. Having read all the papers 19 submitted and carefully considered the relevant legal authority, the court hereby GRANTS 20 defendants’ motion, for the reasons stated at the hearing, and summarized as follows: 21 1. Preliminarily, to the extent that plaintiff’s amended complaint re-alleges state 22 law claims for wrongful termination, vindictive prosecution, and conspiracy, these claims 23 are DISMISSED, for the same reason they were previously dismissed with prejudice. To 24 the extent plaintiff argues that these claims are now being asserted as federal claims 25 pursuant to 42 U.S.C. § 1983, the following analysis applies. 26 2. Plaintiff’s section 1983 claim premised on an unlawful search and seizure 27 (count 1) pursuant to the Fourth Amendment, is time-barred. Plaintiff alleges three 28 purportedly unlawful searches took place, the first occurring between April 10 and May 14, 1 2003, the second occurring on May 21, 2003 and the third occurring on June 3, 2003. All 2 three searches occurred outside the two year statute of limitations applicable to section 3 1983 claims. See, e.g., Wilson v. Garcia, 471 U.S. 261 (1985)(forum state's statute of 4 limitations for personal injury torts sets forth appropriate period for determining statute of 5 limitations under section 1983), superseded by statute on other grounds, as stated in Jones 6 v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004); see also Cal. Civ. Proc Code § 335.1 7 (establishing two year limitation for the filing of civil claims alleging personal injury). 8 Pursuant to the court’s instruction in its prior dismissal order, plaintiff has now knowingly and intentionally falsified the underlying search warrants that he presumably 11 For the Northern District of California attempted to allege equitable tolling. Plaintiff specifically alleges that defendant Powers 10 United States District Court 9 relied upon to execute the allegedly unlawful searches in May and June 2003, and that 12 Powers’ fraudulent conduct was concealed until April 9, 2009, when Powers admitted the 13 conduct in open court. See FAC, ¶¶ 52-55. However, at the hearing on the motion, plaintiff 14 clarified that the factual basis for his claim that defendant Powers falsified the search 15 warrants underlying the May and June 2003 searches is that Powers originally told plaintiff 16 at the time of the search that he had used plaintiff’s license plates in order to secure 17 direction and access to plaintiff’s home – which license plates plaintiff asserts were 18 confidential and would not have been disclosed to Powers. If credited, however, this 19 argument demonstrates that plaintiff – who admittedly knew the confidential nature of his 20 own license plates – would have known Powers’ reasons for gaining access to his home 21 were untrue at the time Powers made such representations in order to obtain the warrant. 22 As a result, the court concludes that the allegations of plaintiff’s complaint as a whole and 23 the reasonable inferences drawn therefrom demonstrate that plaintiff knew of the searches 24 of his home at the time such searches took place, and that plaintiff was aware – or should 25 have been, in the exercise of due diligence – of the purportedly “unlawful” nature of the 26 search warrants executed by Powers and the constitutional deprivations caused thereby, 27 on or shortly after the date such warrants were executed, and certainly at some point well 28 2 1 2 prior to the March 14, 2009 date that sets the earliest limitations date for plaintiff’s claims. Accordingly, plaintiff’s section 1983 claim based on illegal search and seizure under 3 the Fourth Amendment is DISMISSED. To the extent plaintiff has premised his illegal 4 search and seizure claim on the Sixth, Fifth, and Fourteenth Amendments, those 5 amendments do not support plaintiff’s claim for unlawful search and seizure. Because this 6 claim is clearly time-barred and the facts as pled do not establish a basis for equitable 7 tolling, the dismissal of count 1 is with prejudice. 8 9 3. Similarly, plaintiffs’ section 1983 claim premised on false arrest and imprisonment in violation of the Fourth, Eighth, and Fourteenth Amendments (count 3), must also be DISMISSED. As a preliminary matter, plaintiff’s claim is not cognizable as an 11 For the Northern District of California United States District Court 10 Eighth Amendment violation, nor did plaintiff rely on the Eighth or Fourteenth Amendments 12 at the hearing. To the extent properly predicated upon the Fourth Amendment, however, 13 plaintiff alleges five false arrests, occurring on July 10, 2003, June 17, 2005, July 18, 2007, 14 April 22, 2009, and October 7, 2010. The first three are time-barred, as they fall well 15 outside the two year statute of limitations. Nor has plaintiff alleged that tolling applies to his 16 false arrest claim or provided facts to support tolling, despite having been specifically 17 instructed in the court’s prior order as to the need to properly allege tolling with respect to 18 any alleged false arrest. 19 The remaining two alleged false arrests, while technically falling within the two year 20 statute of limitations, have been insufficiently pled. Plaintiff has failed to adequately allege 21 any supporting facts with respect to the specific state actors or defendants involved, or the 22 circumstances of such arrests, such that would satisfy plaintiff’s burden to allege an 23 unlawful arrest without probable cause. See Dubner v. City and County of San Francisco, 24 266 F.3d 959, 965 (9th Cir. 2001)(a claim for unlawful arrest is cognizable under § 1983 as 25 a violation of the Fourth Amendment, provided the arrest was without probable cause or 26 other justification). Dismissal is therefore warranted. At the hearing on the motion, 27 moreover, plaintiff clarified that his allegations of false arrest are premised on the acts of 28 3 1 the presiding judge in remanding plaintiff into custody, and those of his/her officer(s) in 2 executing the judge’s instructions. However, the presiding judge and any officer acting at 3 the judge’s direction in remanding plaintiff into custody, are entitled to judicial immunity. 4 See Mireles v. Waco, 502 U.S. 9, 11-12 (1991)(judicial immunity from suit applies to 5 actions taken by judge in judicial capacity); Forrester v. White, 484 U.S. 219, 229 (1988)(it 6 is “the nature of the function performed, not the identity of the actor who performed it, that 7 inform[s] our immunity analysis”). Thus, since any amendment is likely to be futile, the 8 dismissal of count 3 is with prejudice. 9 4. To the extent plaintiff alleges wrongful termination as a basis for an actionable section 1983 claim (count 2) pursuant to the Fourth and Fourteenth Amendment, these 11 For the Northern District of California United States District Court 10 arguments also fail to state a viable claim for relief. With respect to any claim under the 12 Fourth Amendment, such a claim must be dismissed with prejudice on the same grounds 13 as the foregoing claims asserted in count 1, since plaintiff appears to argue his reliance on 14 the same purportedly time-barred illegal searches and seizures that underlie count 1. With 15 respect to plaintiff’s argument that defendants wrongfully terminated plaintiff in violation of 16 the Fourteenth Amendment’s guarantee of due process, see FAC, ¶¶ 62, 64, plaintiff has 17 failed to adequately allege the manner in which plaintiff’s employment termination violated 18 his Fourteenth Amendment due process rights, or the specific wrongful conduct undertaken 19 by any state actor in connection with any such violation. 20 Moreover, even if plaintiff had adequately alleged a claim for a due process violation 21 relating to the termination of plaintiff’s employment, such a claim would nonetheless be 22 time-barred, since plaintiff himself specifically concedes that his termination occurred on 23 October 24, 2003 – well outside the 2 year statute of limitations period. FAC, ¶ 59. And 24 while plaintiff does allege tolling pursuant to Cal. Gov’t Code § 3304, this provision is 25 inapposite and inapplicable, as it is limited to the tolling of the statute of limitations for filing 26 disciplinary proceedings against public officers – not the filing of a section 1983 civil action. 27 Accordingly, the foregoing claim is DISMISSED. Leave to amend is granted, 28 4 1 however, so that plaintiff may re-allege both an adequate due process violation under the 2 Fourteenth Amendment in connection with his termination, and furthermore the underlying 3 facts that establish the applicability of any equitable or administrative tolling in connection 4 with plaintiff’s claim. If plaintiff contends that any failure by his employer to toll his claim is 5 itself a due process violation, plaintiff shall furthermore set forth factual allegations in 6 support thereof. 7 5. Finally, to the extent plaintiff’s claim pursuant to 42 U.S.C. § 1983 is 8 predicated upon a claim of vindictive prosecution (count 4) and a conspiracy to violate 9 plaintiff’s civil rights (count 5) in violation plaintiff’s of Fifth and Fourteenth Amendment rights – by virtue of defendants’ Overstreet and the County’s role in connection with the re- 11 For the Northern District of California United States District Court 10 filing of a criminal complaint against plaintiff and a subsequent information and trial, see 12 FAC, ¶¶ 81-82 – the court construes plaintiff’s claims to be limited to allegations that 13 defendants have violated plaintiff’s right to Fourteenth Amendment due process (plaintiff 14 did not rely on a claim under the Fifth Amendment at the hearing, nor does the Fifth 15 Amendment apply to plaintiff’s allegations). In this respect, however, plaintiff has failed to 16 state a viable claim for relief. Plaintiff’s allegations are all fundamentally rooted in 17 Overstreet’s decision, as Deputy District Attorney, to criminally prosecute plaintiff, and to 18 proceed with and participate in plaintiff’s criminal prosecution. As such, Overstreet is 19 deemed a state officer rather than a county officer, and there may be no section 1983 20 liability against Overstreet in her official capacity. See Weiner v. San Diego County, 210 21 F.3d 1025, 1031 (9th Cir. 2000) (“We conclude that a California district attorney is a state 22 officer when deciding whether to prosecute an individual“)(affirming dismissal of section 23 1983 claim as to County); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007)(“state 24 officials sued in their official capacities, including university officials, are not “persons” 25 within the meaning of § 1983 and are therefore generally entitled to Eleventh Amendment 26 immunity). Nor can a claim for vindictive prosecution lie against Overstreet in her individual 27 capacity, because Overstreet is protected from section 1983 liability by the doctrine of 28 5 1 absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976)(absolute immunity 2 protects prosecutors from § 1983 liability when they engage in prosecutorial acts, which are 3 defined as those activities “intimately associated with the judicial phase of the criminal 4 process.”). Thus, the claim against Overstreet is DISMISSED with prejudice. 5 As no state actor remains upon which to determine the presence of a constitutional 6 violation for which the County may be made liable under section 1983, the County is also 7 DISMISSED. 8 Furthermore, plaintiff argued at the hearing that his Fourteenth Amendment claim for 9 vindictive prosecution (which applies in the criminal context) is akin to a claim of retaliation, and is based on defendants’ re-filing of criminal charges against him following plaintiff’s 11 For the Northern District of California United States District Court 10 successful misdemeanor appeal. The court is unpersuaded that a retaliation and/or 12 vindictive prosecution claim pursuant to the Fourteenth Amendment due process guarantee 13 is cognizable pursuant to section 1983. At best, plaintiff’s claim may be analogized instead 14 to a malicious prosecution claim. Such a claim, aside from not being alleged directly in the 15 complaint, is not generally cognizable pursuant to section 1983, however, and plaintiff has 16 not alleged or argued the elements sufficient to fall within an exception to the general rule. 17 See, e.g., Lacey v. Maricopa County, 649 F.3d 1118, 1133 (9th Cir. 2011)(to prevail on a 18 malicious prosecution cause of action in a § 1983 suit, “plaintiffs ‘must show that 19 [Defendants] prosecuted [them] with malice and without probable cause, and that they did 20 so for the purpose of denying [them] equal protection or another specific constitutional 21 right’”). 22 Accordingly, plaintiff’s section 1983 claim premised on vindictive prosecution fails. 23 Plaintiff is granted leave to amend his complaint, however, in order to further allege any 24 ground upon which defendants might be held liable under a malicious prosecution theory, 25 and grounds upon which the County might be held independently liable. 26 Plaintiff’s conspiracy claim – which is based on allegations that Overstreet 27 participated in plaintiff’s criminal re-prosecution and on Overstreet’s “contact with county 28 6 1 counsel about the employment case” – is DISMISSED, for the same reasons already 2 articulated in connection with plaintiff’s wrongful termination and vindictive prosecution 3 claims, to the extent they allege federal violations under section 1983. As the conspiracy 4 claim depends from the underlying claims, however, the dismissal is with leave to amend, 5 in the event plaintiff chooses to re-allege the underlying claims. Defendants’ response thereto shall be filed no later than March 22, 2012. For any 8 amended complaint to be successful, plaintiff must allege separate causes of action, must 9 state a federal constitutional or statutory basis for each cause of action, and must allege 10 facts showing each defendant's personal involvement in the wrongful act alleged in each 11 For the Northern District of California Plaintiff’s amended complaint shall be filed no later than February 23, 2012. 7 United States District Court 6 cause of action, as well as plaintiff's harm or injury. No references to state causes of action 12 are permitted, and no additional claims or defendants may be added. The only claims 13 which may be amended are: wrongful termination based on a Fourteenth Amendment due 14 process violation, and malicious prosecution based on a Fourteenth Amendment and equal 15 protection violation, and conspiracy, which plaintiff shall clarify as being brought under 42 16 U.S.C. § 1983 or § 1985. 17 The court will not hold further hearings before the pleadings are settled; any motions 18 directed to the pleadings will be submitted on the papers. 19 IT IS SO ORDERED. 20 Dated: January 26, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 21 22 23 24 25 26 27 28 7

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