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)
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limitations under section 1983), superseded by statute on other grounds, as stated in Jones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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?