Johnson v. San Benito County et al

Filing 67

ORDER by Judge Lucy H. Koh granting 40 Motion for Summary Judgment; granting 43 Motion for Summary Judgment; granting in part and denying in part 49 Administrative Motion to File Under Seal; granting in part and denying in part 52 Administrative Motion to File Under Seal; granting 54 Motion ; granting 55 Motion ; finding as moot 66 Stipulation (lhklc1, COURT STAFF) (Filed on 12/3/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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Plaintiff Brett Johnson (“Plaintiff”) brings this action against Defendants San Benito

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County, Patrick Turturici, and Tony Lamonica (“Defendants”) for alleged violations of 42 U.S.C. §

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1983. Before the Court are Defendants’ Motions for Summary Judgment, which are fully briefed.

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After considering the parties’ submissions, the relevant law, and the record in this case, the Court

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GRANTS Defendants’ Motions for Summary Judgment.

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I.

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BRETT JOHNSON,
Plaintiff,

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v.
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SAN BENITO COUNTY, et. al.,
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Defendants.

Case No.: 12-CV-03691-LHK
ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT

BACKGROUND
The Parties 1

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A.

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Plaintiff Brett Johnson is a San Jose police officer and a father of four. ECF No. 50-1

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(“Johnson Decl.”) ¶¶ 13-16. He brings this case pursuant to 42 U.S.C. § 1983 against two San

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Benito County Sheriff’s Department Officers, Undersheriff Patrick Turturici and Sergeant Tony

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Lamonica (collectively, “Officer Defendants”), along with the County of San Benito. ECF No. 1.

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The Court presents the facts in the light most favorable to Plaintiff. See In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (holding that at summary judgment, all inferences must be
made in favor of the non-moving party).
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Plaintiff alleges that Officer Defendants engaged in a conspiracy that resulted in the deprivation of
Plaintiff’s constitutional rights by leading to the filing of false charges against Plaintiff. Id. ¶¶ 3845.
Plaintiff posits that the central feature of the conspiracy was a quid pro quo agreement
between Turturici and Plaintiff’s ex-wife’s new husband, Mike Howard (“Mike”), a prominent
local businessman. Id. ¶ 31. Under this agreement, Mike would support Turturici in his competitive
election to become sheriff of San Benito County, and in exchange, Turturici would use his
authority as Undersheriff to cook up a false charge of child abuse against Plaintiff. ECF No. 50 at
2-3. This false charge would benefit Mike, because it would have the effect of altering Plaintiff’s
child support agreement with Plaintiff’s ex-wife Mary Howard (“Mary”). This change would allow
Mary (and therefore Mike) to receive increased child support. Id. at 12. Another effect of this
agreement, according to Plaintiff, was that it would adversely affect Plaintiff’s career in law
enforcement and Plaintiff’s ability to maintain future familial relationships. Id. at 13.
Understanding the conspiracy that Plaintiff alleges requires a brief overview of the
individuals who form its crucial links:
• Undersheriff Turturici: Turturici was running for sheriff at the time of the
incident. ECF No. 1 ¶ 24. Turturici’s campaign involved threats of adverse
consequences to those who did not support him and promises of rewards to those
who supported his campaign. ECF No. 50-2 (“Scott Decl.”), Ex. 29. Turturici’s
campaign is central to the alleged conspiracy. Complaints regarding Turturici’s
conduct during the campaign led to an internal investigation, which found that
“there have been legitimate and corroborated incidents of inappropriate behavior
and misconduct on the part of Undersheriff Turturici.” Id. at 37. Nevertheless, the
investigation made no formal findings on any alleged wrongdoing. Id. at 38.
• Sergeant Lamonica: Lamonica, an officer in the Sheriff’s Office, was a Turturici
supporter and loyalist who had been promised a promotion if Turturici was elected
sheriff. Id.; Scott Decl., Ex. 19 (“Williams Depo.”) at 125.
• Mary Howard: Mary is Plaintiff’s ex-wife. She began working for and then dating
Mike Howard. Scott Decl, Ex. 22 (“Mary Depo.”) at 63-65. This relationship
matured into a cohabitative, and ultimately, marital relationship. Id. Mary and
Plaintiff shared joint physical and legal custody of their four children, but that
custody arrangement changed as a result of the conduct at issue in this case.
Johnson Decl. ¶ 14.
• Mike Howard: Mike owns the Tres Pinos Inn, a popular local business in San
Benito County. Mike Howard’s father supported Turturici for Sheriff. Johnson
Decl. ¶ 27. Mike himself, however, did not contribute to or support Turturici’s
campaign. ECF No. 42 (“Davis Decl.”), Ex. D (“Mike Depo.”), at 89. Mike and
Turturici lived on the same street for a period of time and were randomly paired
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

together during a charity golf tournament a half a decade ago. Id.; Scott Decl., Ex.
26 (“Turturici Depo.”) at 152-54.

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• William Tiffany: Tiffany is a lawyer with whom Mary consulted during her
divorce from Plaintiff. Mary did not retain him at that time. Mary Depo. at 123-24.
However, Mary did hire him shortly after the allegations that form the basis for this
action. Id. at 125.

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• Dan Devries: Devries is a local attorney and a friend of Mike Howard. Scott Decl.,
Ex. 24 (“Devries Depo.”) at 10-14. He is involved in a number of community
activities, including publication of a local newspaper. Id. at 16. He also has ties to
Tiffany and Turturici. Id. at 17-19.

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• Karen Forcum: Forcum is the deputy district attorney in San Benito County that
prosecuted Plaintiff. Scott Decl., Ex. 21 (“Forcum Decl.”) at 26.

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B.

Incident

This case results in large part from an incident on July 17, 2010, when Plaintiff and his

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youngest son, who was fourteen years old at the time, got into an argument that ultimately turned

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violent. Scott Decl., Ex. 2, at 1. On the day of the incident, Plaintiff’s youngest son and youngest

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daughter were in Plaintiff’s custody. Id. at 14. The youngest son refused to get out of bed to go run

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an errand. Id. As a result, Plaintiff and the son got into an argument. Id. Events became physical

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when Plaintiff grabbed his son’s arm to pull the son out of bed. Id. The son then started flailing his

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arms. Id. at 18. As a result, Plaintiff told his son to stop, and when his son did not stop, Plaintiff

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pushed the son against the dresser in the room. Id. At this point, Plaintiff instructed his son to

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complete some chores outdoors. Id. Once outside, Plaintiff felt his son was not following

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instructions. Id. Plaintiff and his son began to argue again, and at that point, Plaintiff’s son ran to a

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neighbor’s house. Id.

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Plaintiff was upset because the family was late to run the errand. His son, meanwhile, had

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asked the neighbor, Bob Coffert (“Bob”), whether he could use a phone to call his mother. Id. at

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15. Bob agreed, and Plaintiff’s son went into a small laundry room in the Coffert residence and

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called his mother. Id. At this point, Plaintiff was still back at Plaintiff’s residence preparing his

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vehicle to run the errand. Id. at 18. After that task was complete, Plaintiff came to the Coffert

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residence to retrieve his son. Id.

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At the Coffert residence, Plaintiff asked his son to hang up the telephone since they were
running late. The son refused and stated that he would not accompany Plaintiff on the errand. Id. At
this point, Plaintiff grabbed his son’s arm, took the phone, and hung up. Id. Plaintiff’s son resisted
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by dropping to the floor and laying limp. Id. Plaintiff put his son’s arm behind his son’s back in
some sort of arm lock and placed his knee on his son’s back. Id. at 15. Plaintiff finally picked his
son up off the floor and carried him outside the door. Id. at 18. Plaintiff and his son continued to
argue throughout this incident. Id. Once Plaintiff’s son was in the passenger seat of the car, the son
allegedly made derogatory comments about Plaintiff. Id.
At this point, the facts accounted by Plaintiff diverge from those accounted by his son.
Plaintiff claims that he raised his hand to slap his son to punish the son for making the derogatory
comment, but that before Plaintiff could do anything, his son moved his head and hit it against the
window. Id. Plaintiff’s son in contrast claims that Plaintiff slapped him with an open hand, despite
the fact that the son was sitting mute because he did not want to speak to his father. Id. at 15.
Plaintiff’s son claims that the slap caused him pain because it hit a tooth, and that before his father
slapped him, he noticed blood under his nose resulting from the scuffle inside the Coffert house. Id.
Both Plaintiff and his son agree that the remainder of the drive to run the errand was
uneventful. After they returned home, Plaintiff asked his son to pack up the son’s belongings and to
return to his mother’s residence. Id. Plaintiff’s son did so, and Mary came and picked Plaintiff’s
son up from Plaintiff’s residence. Id. Plaintiff’s son told Mary about the physical altercation
between Plaintiff and Plaintiff’s son. Id. At this point, Mary called the San Benito County Sheriff’s
Office to report the incident. Id. at 14.
C.

First Investigation

Deputy Marc Williams responded to the call, and he contacted his supervisor Sergeant Rick
Uribe because the suspect, Plaintiff, was a police officer. Serverian Decl., Ex. F (“Williams
Depo.”) at 44-45. Uribe therefore joined Williams at Mary’s residence. Scott Decl., Ex. 20 (“Uribe
Depo.”) at 40-41. Williams first interviewed Mary, who reported her family history and told
Williams that the younger daughter was still with Plaintiff. Scott Decl., Ex. 2, at 14. Williams
offered to request medical assistance for the son, but both Mary and the son refused. Id. Williams
then interviewed the son, who reported his version of the incident. Id. at 14-16. Williams
photographed the son’s injuries, which included scratches and red marks on the son’s body. Id. at
15. Williams instructed Mary that because of the existing custody order, Plaintiff could insist that
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the son be returned to Plaintiff and that the daughter not be released from Plaintiff’s custody. Id. at
16. Accordingly, Williams recommended an emergency protective order (“EPO”) to circumvent
the custody arrangement. Id. Mary requested an EPO. Id. Williams called a judge and informed the
judge of the circumstances. Id. The judge issued an EPO and ordered that Williams confiscate all
of Plaintiff’s firearms. Id.; Scott Decl., Ex. 1.
While Williams was interviewing Mary and Plaintiff’s son, Uribe was supervising. Uribe
Depo. at 42. Williams briefed Uribe, and Uribe asked if Williams had any questions. Id. at 41-42.
While Williams’ interviews were ongoing, Uribe engaged in a small-talk conversation with Mike
about a trip Mike took to Idaho and Mike’s forthcoming wedding. Id. at 42-44. Uribe and Mike did
not have any preexisting familiarity with each other. Id. at 44. During this time, Uribe was also
watching Williams interview Mary and Plaintiff’s son. Id. at 45.
Williams and Uribe then interviewed Bob and Mary Lou Coffert (“Mary Lou”), Plaintiff’s
neighbors whose house was the scene of much of the incident. Mary Lou told the officers that she
did not see any abusive conduct on Plaintiff’s part. Scott Decl., Ex. 2, at 16. Bob stated that he had
heard a lot of yelling between Plaintiff and his son, during this incident and at other times. Id. at
17. But Bob stated that he had never seen Plaintiff act abusively with regard to Plaintiff’s son. Id.
Williams next interviewed Plaintiff and Plaintiff’s youngest daughter (who was a witness to
much of the incident and who was still with Plaintiff). Williams tape recorded his interview with
Plaintiff, in which Plaintiff informed the officers that his son routinely acted emotionally and
violently. Id. at 18-19; Uribe Depo. at 17. Plaintiff stated that his son had behavioral issues and that
Plaintiff, rather than Mary, was the disciplinarian parent. Scott Decl., Ex. 2 at 19. Plaintiff further
stated that his son had not reported any injuries resulting from the incident other than a tooth ache.
Id. Plaintiff’s younger daughter essentially corroborated Plaintiff’s statement, and stated that she
was not afraid of her father and that her father was not out of control when he was dealing with her
brother. Id. at 20.
After interviewing all the parties, Williams contacted the judge who issued the EPO and
asked the judge to suspend the EPO. Id. Williams offered two reasons for why he asked the judge
to suspend the EPO. First, Williams stated that the injuries to Plaintiff’s son resulted more from
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circumstance than intentional act and that as a result, Plaintiff was not going to be taken into
custody. Id. Second, Williams stated that Plaintiff voluntarily agreed to suspend the custody
arrangement and to allow Mary to maintain custody while the situation was resolved, thereby
mooting the necessity of the EPO. Id. at 21. The judge declined to remove the EPO, but shortened
its duration. Id.

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In accordance with protocol, Williams drafted a report of his investigation of the incident,
booked all seized firearms, completed a child abuse report form required by the state Department
of Justice, in which he stated that the child abuse allegations were “inconclusive,” and downloaded
all digital photos into the Sheriff’s Office case management system. See generally id. Williams’
report recommended forwarding a copy of the report to the District Attorney’s office and to Child
Protected Services for those agencies’ review. Plaintiff was not arrested, and no charges were filed.
Id. at 21.

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D.

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A day or two after the incident, Mike and Mary got in touch with Turturici at the Sheriff’s
Office to discuss the case. It is not clear who—Mike, Mary, or Turturici—made the initial call, but
it is apparent that Mary ended up talking to Turturici. 2 In this conversation, Mary explained that
she was concerned that the allegations against Plaintiff were not being taken as seriously as they
should have been, perhaps because Plaintiff was a police officer. Mary Depo. at 101-04. After
speaking with Mary, Turturici asked Lamonica to follow up on the case. Turturici Depo. at 86.

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Follow-Up Investigation, Charge, and Resolution

Lamonica reviewed Williams’ report from the initial investigation and concluded that
further investigation was necessary. Lamonica Depo. at 88. Accordingly, Lamonica re-interviewed
Plaintiff’s youngest son, who was injured in the incident, and Plaintiff’s youngest daughter, who
was a witness to the incident. Id. He also interviewed Plaintiff’s two older children, who had no
part in the incident, to determine whether there was any family history relevant to the incident. Id.
Lamonica did not, however, re-interview Plaintiff himself, nor did he review the audio recording of

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In her deposition, Mary could not clearly recall who called whom. Mary Depo. 96-100. It appears
that Mike either called Turturici or got Turturici’s contact information from the sheriff. At that
point, either Mary called Turturici or Turturici called Mary.
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the initial interview with Plaintiff. Id. at 90-91. Rather, he relied exclusively on Williams’ report
for information about the initial interview.

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Lamonica prepared a supplemental report. 3 Lamonica also changed Williams’ DOJ child
abuse report from “inconclusive” to “substantiated.” Id. at 122. Lamonica then forwarded both the
supplemental report and the revised DOJ child abuse report form to the District Attorney’s office.
Id. There is no evidence in the record that Turturici either told Lamonica how to conduct the
investigation or otherwise participated in Lamonica’s investigation. Johnson Depo. at 206
(acknowledging the lack of evidence of Turturici’s involvement in the investigation beyond referral
to Lamonica).

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Forcum, the Deputy District Attorney in charge of the case, received Williams’ initial
report and Lamonica’s supplemental report. Forcum Depo. at 34-37. Forcum further consulted
with the San Benito County Health and Human Services Agency. Id. at 36-37. An official at that
agency, after interviewing Plaintiff’s youngest son and youngest daughter, concluded that “the
father is not guilty of physical abuse or emotional abuse as defined in the Welfare and Institutions
Code.” ECF No. 50-7. Nevertheless, having reviewed the officers’ reports, Forcum prepared and
filed a criminal complaint. Forcum Depo. at 43. Forcum contends that she did not rely on the DOJ
child abuse report form or on the audio recording of Williams’ interview with Plaintiff in filing
criminal charges. Id. at 49, 51.

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Plaintiff was arraigned. Id. at 54. He and his counsel were provided case materials prepared
by Officer Defendants and other San Benito Sheriff’s Office employees. Johnson Depo. at 94. As
part of this material, Plaintiff was provided with a recording of Williams’ interview with Plaintiff.
Forcum Depo. at 49. After reviewing these materials, Plaintiff agreed to attend a three-month
parenting class in exchange for the prosecutors’ dropping of charges against him. Johnson Depo. at
97. Pursuant to this agreement, Plaintiff attended the classes, and the charges were dropped.
Forcum Depo. at 54-55.

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After the charges were dropped, Plaintiff filed an internal affairs complaint against
Defendants alleging that the recording of Williams’ interview with Plaintiff had been manipulated.

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A full version of this report is not in the record. See Scott Decl., Ex. 8 (first page of the report).
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Scott Decl., Ex. 13. Plaintiff submitted an expert report, which found irregularities in the recording.
Scott Decl., Ex. 14. Plaintiff contends that someone altered the recording to eliminate exculpatory
information. Scott Decl., Ex. 13 at 5. The state Department of Justice investigated Plaintiff’s claim
and concluded that the recording had not been tampered with. Serverian Decl., Ex. H. Defendants
also retained another forensics expert, who like the state agency, concluded that there was no
evidence that the recording had been manipulated. Serverian Decl., Ex. I.
E.

Consequences

Plaintiff contends that he has suffered adverse consequences resulting from the actions of
Officer Defendants in this case. Specifically, he contends that the charges in this case negatively
affected his current and future familial relationships and his career prospects.
With respect to his family, Plaintiff contends that a lawyer for his ex-wife Mary, William
Tiffany, sent him a letter during the pendency of the investigation in this case. Scott Decl., Ex. 7. In
that letter, which was sent four days after the incident, Tiffany stated that Mary objected to Plaintiff
having unsupervised visitation during a specific ten-day period with Plaintiff’s youngest son due to
the allegations in this case. Id. The record does not contain any evidence that this letter
permanently affected Plaintiff’s custody and visitation arrangement with Mary, and, in fact, with
respect to Plaintiff’s youngest daughter, the custody arrangement has proceeded unchanged.
Johnson Depo. at 17.
Plaintiff further notes that he received paperwork from Child Support Services, indicating
that Plaintiff was responsible for more child support. Johnson Depo. at 132. Child Support Services
indicated that Plaintiff was responsible for the increased sum of child support because his youngest
son was now living full-time with Mary. Id. at 133. Plaintiff did not hire a lawyer or challenge this
new arrangement in family court; rather, he stipulated to the increase in the support payments. Id.
at 132, 135. Importantly, further, there is no evidence that changes to the custody agreement were
mandated by Defendants’ actions in this case.
Plaintiff also contends that the events in this case have led to a longer term negative impact
on his ability to establish and maintain familial relationships. Specifically, Plaintiff has been placed
on the California Department of Justice’s Child Abuse Central Index (“CACI”) for having a
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“substantiated” incidence of child abuse. Scott Decl., Ex. 9. Plaintiff claims that this placement
could adversely affect his ability to serve as a foster, step, or adoptive parent. Johnson Decl. ¶ 31.
Specifically, the San Benito County Sheriff’s Office, in a letter to Plaintiff explaining Plaintiff’s
Placement on CACI, stated that the “Index is accessed by law enforcement agencies, probation
departments, county welfare agencies and district attorneys when conducting investigation of child
abuse, and court investigators and licensing agency personnel to screen individuals for child
placement and licensure or employment positions having custody of children.” Scott Decl., Ex. 9.
With respect to his career, Plaintiff contends that he was placed on the Brady list by the
Santa Clara County District Attorney’s Office for having engaged in conduct that involved moral
turpitude. Scott Decl., Ex. 15. While Plaintiff contends that his placement on the Brady list could
adversely affect his career, including, for example, whether prosecutors are likely to allow him to
take the stand in cases that he investigates, there is no admissible evidence in the record explaining
the effect of being placed on the Brady list. Johnson Decl. ¶ 30. In his deposition, Plaintiff further
testified that he has suffered no actual adverse effects in his current job as a result of Defendants’
actions in this case. Johnson Depo. at 63.
F.

The Instant Litigation

In light of these consequences, Plaintiff filed the instant lawsuit against San Benito County,
Turturici, and Lamonica. In his original Complaint filed on July 13, 2012, Plaintiff pleaded four 42
U.S.C. § 1983 causes of action, all of which were based on allegations of conspiracy to deprive
Plaintiff of his constitutional rights. ECF No. 1 at ¶¶ 38-53. Specifically, in his original complaint,
Plaintiff alleged that Defendants conspired to retaliate against Plaintiff in violation of the
Fourteenth Amendment, conspired to deprive Plaintiff of his equal protection rights by placing him
in a “class of one,” and conspired to cause a bad faith arrest that violated Defendants Fourth
Amendment rights. Id. ¶¶ 38-48. Plaintiff further alleged that San Benito County was liable
because it ratified Officer Defendants’ conduct. Id. ¶¶ 49-53.
On March 1, 2013, Plaintiff filed an amended complaint, which alleges five causes of action
under 42 U.S.C. § 1983. ECF No. 19. First, Plaintiff alleges that Defendants violated his
Fourteenth Amendment rights to due process by causing criminal charges to be filed against him.
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Id. ¶¶ 39-42. Second, Plaintiff alleges that Defendants violated his equal protection rights. Id. ¶¶
43-46. Third, Plaintiff alleges that Defendants violated the Fourth Amendment by causing a bad
faith arrest. Id. ¶¶ 47-49. Fourth, Plaintiff alleges that Defendants violated the First Amendment by
engaging in conduct designed to chill Plaintiff’s rights to free speech and to petition the family
court. Id. ¶¶ 50-55. Fifth, Plaintiff alleges municipal liability on the basis that San Benito County
ratified Officer Defendants’ conduct. Id. ¶¶ 56-60. The Amended Complaint further alleged that
Officer Defendants were motivated by a conspiracy to deprive Plaintiff of his constitutional rights,
but did not plead any conspiracy causes of action explicitly. Id. ¶¶ 42, 46, 49, 55.

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On September 26, 2013, after the close of discovery, Turturici filed his Motion for
Summary Judgment. See ECF No. 40. That same day, San Benito County and Lamonica filed a
separate joint Motion for Summary Judgment. See ECF No. 43. 4 On October 15, 2013, Plaintiff
filed oppositions to both motions. See ECF Nos. 50-51. 5 On October 22, 2013, Turturici filed a
reply. See ECF No. 59. Lamonica and San Benito County also filed a reply that same day. See ECF

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Both sets of Defendants also filed declarations and exhibits accompanying their Motions for
Summary Judgment. Both sets of Defendants discovered that some of these exhibits contained
sensitive information and move to remove these incorrectly filed documents from the docket. ECF
Nos. 54-55. Plaintiff does not oppose this request, and Defendants have filed replacement exhibits.
ECF Nos. 53, 57, 58. The Court GRANTS the motions to remove these documents. ECF Nos. 428, 42-10, 44. These entries shall remain locked. The Court has only considered the replacement
exhibits in ruling on the Motions for Summary Judgment. See ECF Nos. 53, 57, 58.
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Plaintiff has filed two Administrative Motions to File Under Seal parts of Plaintiff’s opposition to
Defendants’ Motions for Summary Judgment and one exhibit to the Declaration of John Houston
Scott in support of Plaintiff’s opposition. ECF Nos. 49, 52. The Court GRANTS Plaintiff’s request
to seal the exhibit attached to the Scott Declaration, which is the Internal Affairs Investigation
Report. Scott Decl., Ex. 29. This Court finds that “compelling reasons” support the sealing of this
document, which is a report on a non-public, internal employment investigation, much of which is
not specifically relevant to the instant litigation. See Kamakana v. City and Cnty. of Honolulu, 447
F.3d 1172, 1178-79 (9th Cir. 2006). Plaintiff shall e-file Exhibit 29 to the Scott Declaration under
seal.
The Court DENIES Plaintiff’s request to seal parts of his opposition. The information in the
sentences that Plaintiff seeks to redact has already been publicly disclosed in this litigation. See
ECF Nos. 26, 27, 29. The redacted portions of the opposition merely refer to the existence of the
investigation and the broad outlines of what was investigated. See ECF No. 29 (explaining the
relevance of these documents). The only specific findings of the investigation revealed in the
opposition are directly related to the issues in these dispositive motions. Plaintiff has failed to set
forth “compelling reasons” to seal this information. Accordingly, the Court finds that these are not
sealable. Within five days of this order, Plaintiff shall e-file an unredacted version of the
opposition. See ECF No. 51.
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No. 60.
II.

LEGAL STANDARD
Summary judgment is proper where the pleadings, discovery, and affidavits show that there

is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact
is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving
party. See id.
The party moving for summary judgment bears the initial burden of identifying those
portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Once the moving party meets
its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or
discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). If the nonmoving party fails to make this showing, “the moving party is entitled to judgment
as a matter of law.” Celotex, 477 U.S. at 323.
At the summary judgment stage, the Court must view the evidence in the light most
favorable to the nonmoving party, and all reasonable inferences that may be drawn from the facts
placed before a court must be drawn in favor of the opposing party. See Stegall v. Citadel Broad.,
Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). If evidence produced by the moving party conflicts with
evidence produced by the nonmoving party, a court must assume the truth of the evidence set forth
by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158
(9th Cir. 1999). However, “[b]ald assertions that genuine issues of material fact exist are
insufficient.” See Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears
Holdings Corp., No. 11-09068, 2013 WL 1010547, at *4 (C.D. Cal. Mar. 13, 2013) (“Conclusory,
speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact
and defeat summary judgment.”). Further, a “motion for summary judgment may not be defeated
. . . by evidence that is ‘merely colorable’ or ‘is not significantly probative.’” Anderson, 477 U.S. at
249-50; see also Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006) (same). If the
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nonmoving party fails to produce evidence sufficient to create a genuine dispute of material fact,
the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1103 (9th Cir. 2000).
III.

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Officer Defendants’ Liability

Plaintiff alleges that Officer Defendants deprived him of his First, Fourth, and Fourteenth
Amendment rights and engaged in a conspiracy, the goal of which was to effectuate these
deprivations. Specifically, in his opposition to the instant motions, Plaintiff contends that Officer
Defendants contravened their constitutional obligations by conspiring to engage in conscienceshocking actions that (1) deprived Plaintiff of his substantive due process rights to pursue a career
and engage in familial relationships, (2) deprived Plaintiff of his due process right to be free from
the use of tampered evidence, (3) resulted in a bad faith seizure in violation of the Fourth
Amendment, and (4) constituted retaliation that chilled Plaintiff’s First Amendment rights of
association and his right to petition the family court. 6 ECF No. 51 at 19-22.

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DISCUSSION

Officer Defendants’ principal contention in the instant motions is that they are entitled to
qualified immunity. “An officer is entitled to qualified immunity unless (1) facts viewed in the
light most favorable to the injured party show that the officer violated a constitutional right and (2)
the right was clearly established at the time of the alleged misconduct.” Ford v. City of Yakima,
706 F.3d 1188, 1192 (9th Cir. 2013). The inquiry focuses on whether Officer Defendants acted
unreasonably—not whether they acted with malicious intent. As the Supreme Court has stated, “an
allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively
reasonable manner.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

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6

Although Plaintiff’s Amended Complaint alleges an equal protection violation, neither
Defendants’ motions or replies nor Plaintiff’s opposition address this cause of action. The Court
notes that the equal protection claim would be meritless even if the claim had been properly argued
in the briefs because Plaintiff has not marshaled any facts to suggest that those similarly situated to
him were treated differently. See McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.
2004) (“A class of one equal protection claim may be brought where (1) the plaintiff alleges that he
has been intentionally treated differently from others similarly situated and (2) that there is no
rational basis for the difference in treatment or the cause of the differential treatment is a ‘totally
illegitimate animus’ toward the plaintiff by the defendant.”).
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For the reasons stated below, the Court here finds that the Officer Defendants are entitled to
qualified immunity because the facts, even when viewed in the light most favorable to Plaintiff, do
not show that Officer Defendants violated any of Plaintiff’s constitutional rights. Accordingly, the
Court need not reach the issue of whether such rights were clearly established at the time of the
misconduct.

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Before the Court turns to each of Plaintiff’s alleged constitutional violations to explain why
these theories are not supported by the record, the Court notes the narrowness of Plaintiff’s claims.
Plaintiff only alleges wrongdoing by Turturici and Lamonica. It is undisputed that Turturici’s sole
action in the investigation that led to the instant litigation was asking Lamonica to conduct a
second investigation. Johnson Depo. at 206, 211 (acknowledging lack of evidence regarding any
further involvement by Turturici). Lamonica’s role, while slightly more expansive, was also
minimal. He re-interviewed Mary and Plaintiff’s children, reviewed the first investigation, changed
the designation of child abuse from “inconclusive” to “substantiated,” and forwarded his revised
report to the district attorney’s office. Therefore, the crux of Plaintiff’s case is a challenge to the
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The Court now turns to each of the bases on which Plaintiff contends that Officer
Defendants’ investigation infringed Plaintiff’s constitutional rights. For the reasons discussed
below, the Court finds that the facts in the light most favorable to Plaintiff do not show that Officer
Defendants violated Plaintiff’s constitutional rights. 7 Accordingly, the Court grants summary
judgment on the first prong of the qualified immunity analysis. 8

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Substantive Due Process

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7

Because the Court finds that there is no underlying constitutional violation, Plaintiff’s conspiracy
allegations necessarily fail. As the Ninth Circuit has held, “[c]onspiracy is not itself a constitutional
tort under § 1983,” and conspiracy “does not enlarge the nature of the claims asserted by the
plaintiff, as there must always be an underlying constitutional violation.” Lacey v. Maricopa Cnty.,
693 F.3d 896, 935 (9th Cir. 2012). The Court’s finding that there is no constitutional violation
therefore necessarily means that there is no claim for conspiracy.
8
Because the Court grants summary judgment on qualified immunity grounds, it need not reach
Defendants’ alternate contention that Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S.
477 (1994).
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“Substantive due process protects individuals from arbitrary deprivation of their liberty by
government.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). The Ninth Circuit has stated
that “to establish a constitutional violation based on substantive due process, [a plaintiff] must
show both a deprivation of her liberty and conscience-shocking behavior by the government.” Id.
(emphasis added). For the reasons set forth below, the Court finds that Plaintiff has not marshaled
facts on the second of these two elements, whether Officer Defendants engaged in conscienceshocking behavior. Accordingly, the Court need not reach the issue of whether there is sufficient
evidence to demonstrate that Officer Defendants deprived Plaintiff of constitutionally protected
liberty interests.
The Supreme Court has stated that “only the most egregious official conduct can be said to
be arbitrary in a constitutional way.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
That inquiry requires the Court to look at whether Officer Defendants engaged in “conduct
intended to injure in some way unjustifiable by any government interest.” Id. at 849 (emphasis
added). Here, for the reasons stated below, the Court finds that there is no evidence that Officer
Defendants intended to injure Plaintiff in a manner that is unjustifiable by any government
interests. In fact, the evidence in the record suggests that Officer Defendants acted reasonably in
the course of their employment. As the Ninth Circuit has noted, where defendants act reasonably,
their actions cannot violate the more stringent shocks-the-conscience standard for a substantive due
process violation. See Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 371 n. 4
(9th Cir. 1998) (noting that if defendants’ “actions were objectively reasonable, it follows that
[their] conduct did not offend the more stringent standard applicable to substantive due process
claims.”).
The undisputed facts suggest that Officer Defendants acted reasonably and that therefore
their conduct did not, as a matter of law, shock the conscience. Specifically, Turturici received a
call from a concerned mother, Mary, that allegations of child abuse were not being taken seriously.
Mary Depo. at 101-04. In response, Turturici asked Lamonica to take a second look at the case.
Turturici Depo. at 86. Lamonica reviewed the documents prepared in the scope of the first
investigation; conducted additional investigations that, in his experience, were warranted; and
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reached the conclusion that Plaintiff engaged in unlawful conduct. Lamonica Depo. at 88. That
Lamonica reached a conclusion different than that reached by Williams after Williams’ initial
investigation does not render Lamonica or Turturici’s conduct unreasonable. A reasonable officer
could conclude from the facts of the incident and from Plaintiff’s son’s resulting injuries that there
was a substantiated claim of child abuse. This is all substantive due process requires. Plaintiff’s
contention that Turturici and Lamonica’s improper motives (i.e., appeasing Mike to garner support
for Turturici’s campaign) led to the conclusion that the child abuse allegations were substantiated is
immaterial. Brittain, 451 F.3d at 998. The critical question is not what motivated Turturici and
Lamonica in their conduct; rather, the question is whether such conduct was reasonable. See id.
Because the Court here concludes that Officer Defendants’ conduct was reasonable, it need not
inquire into their motives. Instead, the finding of reasonableness is sufficient to conclude, as a
matter of law, that Officer Defendants cannot be liable for violation of Plaintiff’s substantive due
process rights.
In finding as a matter of law that Officer Defendants did not act in an unreasonable manner
free from any legitimate government process, this Court finds that this case bears substantial
similarity to the Ninth Circuit’s decision in Brittain. In Brittain, the Ninth Circuit, rejecting a
substantive due process challenge, granted summary judgment to a police officer on qualified
immunity grounds. There, the officer responded to a dispute between ex-spouses about which
spouse was entitled to custody at that moment. 451 F.3d at 986. The officer, after interviewing the
mother and reviewing the ambiguous custody agreement, ordered that the mother release the child
to the father. Id. at 986-87. The Ninth Circuit held that there the officer did not, as a matter of law,
engage in any conscience-shocking behavior. Id. at 996-97. The Ninth Circuit, after finding that the
officer’s actions were a reasonable exercise of his statutory duties, found that the plaintiff’s
evidence that the officer conspired with plaintiff’s ex-husband was immaterial to its analysis of
whether the officer’s conduct was conscience-shocking. Id. at 998. The Ninth Circuit stated that the
“conspiracy allegations all amount to issues of intent, which while disputed, are not relevant” to the
question of whether an officer’s conduct shocks the conscience. Id. The Ninth Circuit similarly
found that plaintiff’s evidence that defendant turned the tape recorder on and off while he was
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interviewing plaintiff was irrelevant. Id. Finally, the Ninth Circuit rejected plaintiff’s contention
that defendant’s deviation from the usual practice of not requiring immediate transfer when there
was a custody dispute was immaterial to whether the officer’s conduct shocked the conscience. Id.
The Ninth Circuit stated, “[i]t is not conscience shocking that an officer would act in a nonidentical fashion in cases presenting similar (though not identical) factual circumstances.” Id.
Plaintiff’s contentions that Officer Defendants engaged in conscience-shocking activities in
this case are strikingly similar to those rejected by the Ninth Circuit in Brittain. Plaintiff contends,
for example, that Mike and Mary conspired with Turturici and Lamonica to create the charges that
ultimately adversely affected Plaintiff’s career and familial relationships. Yet, this is the precise
theory of conscience-shocking activity that the Ninth Circuit rejected in Brittain. Id. at 998. So
long as Turturici and Lamonica acted reasonably as law enforcement officers, their ill motives are
immaterial to whether their conduct shocked the conscience. Furthermore, Plaintiff appears to
contend that under the usual policies of the San Benito County Sheriff’s Office, an officer would
not re-interview a witness without consulting the officer that did the initial report. Plaintiff asks the
Court to infer that Officer Defendants engaged in conscience-shocking conduct from Lamonica’s
failure to follow this process by failing to consult with Williams before Lamonica’s interview of
Mary, Plaintiff’s youngest son, and Plaintiff’s youngest daughter. ECF No. 50 at 11. Yet, as
discussed above, the Ninth Circuit has held that evidence of a deviation from routine practice or
policy is insufficient to survive a summary judgment motion. Brittain, 451 F.3d at 998. Finally,
Plaintiff here contends that the evidence of the tampering of the recording of Williams’ interview
with Plaintiff is also probative of whether Officer Defendants engaged in conscience-shocking
behavior. As a preliminary matter, the record is not clear that Officer Defendants (or Forcum, the
prosecutor) actually relied upon the audio recording in making their decisions regarding
prosecution, or placement of Plaintiff on CACI and Brady lists. Furthermore, the Ninth Circuit in
Brittain held that manipulation of evidence cannot establish conscience-shocking activity, so long
as the officer acted reasonably. Id. Accordingly, Plaintiffs’ contentions with respect to whether
Defendants acted in a manner that would shock the conscience are insufficient to create a genuine
issue of material fact on whether there was a substantive due process violation.
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Plaintiff next contends that Officer Defendants’ actions deprived him of his right to be free
from the use of tampered evidence. Specifically, Plaintiff contends that the altered recordings of
Williams’ interview with Plaintiff led to the filing of criminal charges against Plaintiff. “[T]here is
a clearly established constitutional due process right not to be subjected to criminal charges on the
basis of false evidence that was deliberately fabricated by the government.” Devereaux v. Abbey,
263 F.3d 1070, 1074-75 (9th Cir. 2001). To support a deliberate fabrication of evidence claim,
Plaintiff “must, at a minimum, point to evidence that supports at least one of the following two
propositions: (1) Defendants continued their investigation of [Plaintiff] despite the fact that they
knew or should have known that he was innocent; or (2) Defendants used investigative techniques
that were so coercive and abusive that they knew or should have known that those techniques
would yield false information.” Id. at 1076 (emphasis in original); accord Gantt v. City of Los
Angeles, 717 F.3d 702, 707 (9th Cir. 2013). To prove a deliberate fabrication of evidence claim, a
plaintiff must show that the tampering caused harm to the plaintiff. See McSherry v. City of Long
Beach, 583 F.3d 1129, 1136-47 (9th Cir. 2009). As such, if the ultimate decisions that caused
Plaintiff harm were unrelated to the allegedly tampered evidence, then Plaintiff has no actionable
section 1983 claim against those who tampered with the evidence. Id. at 1142. There must be facts
that Officer Defendants relied on the tampered evidence and not on independent evidence in
making their decisions that adversely affected Plaintiff. Id. at 1146-47. 9

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Tampered Evidence

This record lacks such evidence. Even if there had been tampering with the recording of
Plaintiff’s interview with Williams, there are no facts that suggest that the tampered evidence led to
any adverse consequences for the Plaintiff. Plaintiff contends that Officer Defendants’ actions put
Plaintiff on the Brady List, altered his CACI designation from “inconclusive” to “substantiated,”
and led to his booking and charge for child abuse. ECF No. 51 at 12-15. Yet, there is no factual
evidence in the record that Officer Defendants reviewed the allegedly tampered audio tape before

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The Ninth Circuit has also held that a defendant’s conduct must shock the conscience for a
plaintiff to bring a deliberate fabrication of evidence claim. See Gantt, 717 F.3d at 707. Therefore,
the Court’s discussion above with respect to Plaintiff’s failure, as a matter of law, to establish that
Defendants’ conduct shocked the conscience also proves fatal to Plaintiff’s deliberate fabrication of
evidence claim.
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taking these actions. To the contrary, Lamonica, the Defendant who conducted the second
investigation, testified that he never reviewed the audio recording of Williams’ interview with
Plaintiff. Lamonica Depo. at 91 (“Q: Did you listen to that interview? A: No, I did not.”).
Furthermore, Forcum, the prosecutor who made the decision to press forward with the criminal
charges against Johnson, also did not review this tape, but rather relied on her own separate
investigation. Forcum Depo. at 49 (“Q: Did you ever listen to the tape? A: No, I had a very -- I
relied on the police report, which had the statements of the witnesses in the report.”). This evidence
is undisputed. Plaintiff has presented no facts to suggest that the purportedly doctored recording
was used in any way, by Defendants, Forcum, or anyone else. McSherry, 584 F.3d at 1146-47
(“The record is devoid of any information, facts, or valid inferences that might undermine [the
testimony that the tampered evidence was not relied upon].”).
In light of the fact that the record is devoid of evidence of a causal nexus between the
tampering of the evidence and any of the tangible harms Plaintiff purportedly suffered, the Court
finds that Plaintiff’s tampering of evidence claim cannot be a valid basis on which to proceed on a
due process claim.
3.

Bad Faith Seizure

Plaintiff claims that Officer Defendants engaged in a bad faith seizure through a false
arrest. ECF No. 51 at 21. Specifically, Plaintiff appears to contend that Officer Defendants’
investigation led to the improper arrest and booking of Plaintiff. Id. An arrest need only be
supported by probable cause to be constitutional under the Fourth Amendment. Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979). Probable cause determinations are wholly objective and are
based on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31 (1983).
Accordingly, an individual officer’s state of mind or intent is irrelevant to whether there was
probable cause. See Whren v. United States, 517 U.S. 806 (1996).
In this case, the Court finds, as a matter of law, that there was probable cause to arrest and
charge Plaintiff for child abuse. A reasonable officer could have concluded that Plaintiff engaged
in conduct that would constitute child abuse. The California statute that Plaintiff was alleged to
have violated states that “[a]ny person who willfully inflicts upon a child any cruel or inhuman
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corporal punishment or an injury resulting in a traumatic condition is guilty.” Cal. Penal Code. §
273d(a); Scott Decl., Ex. 10. In this case, there was sufficient evidence for a reasonable officer to
conclude that Plaintiff had violated this statute. Specifically, there is no dispute that Plaintiff and
his son were engaged in a physical, violent encounter. Scott Decl., Ex. 2. This encounter involved
Plaintiff pushing his son into a dresser, pinning down his son with his knee placed on his son’s
back while holding his son’s arm behind his son’s back, and slapping or threatening to slap his son.
Id. at 15, 18; ECF No. 50-7 (Stipulated Fact). Further, there is no dispute that Plaintiff’s son was
injured, including sustaining scratches and small red marks on his body resulting from the incident.
Scott Decl., Ex. 2, at 15; Scott Decl., Ex. 4; Williams Depo. at 50-51. In light of these facts, the
Court finds that a reasonable officer would have had probable cause to conclude that Plaintiff had
violated California law.
4.

First Amendment

Plaintiff’s final theory of constitutional violation is that Turturici and Lamonica’s actions
chilled Plaintiff’s First Amendment right to associate and petition the family court. ECF No. 51 at
21-22. Plaintiff must demonstrate two elements to show that Officer Defendants violated his First
Amendment rights: first, Plaintiff’s “evidence must demonstrate that the officers’ conduct would
chill a person of ordinary firmness from future First Amendment activity” and second, “the
evidence must enable [Plaintiff] ultimately to prove that the officers’ desire to chill his speech was
a but-for cause of their allegedly unlawful conduct.” Ford v. City of Yakima, 706 F.3d 1188, 1193
(9th Cir. 2013).
In this case, the Court finds that the evidence is insufficient for Plaintiff to ultimately
establish the second element, that the desire to chill speech was the but-for cause of Officer
Defendants’ actions. As a preliminary matter, the Court notes that in the cases in which the Ninth
Circuit has found summary judgment inappropriate on a First Amendment theory, defendants have
taken action in response to plaintiffs’ engaging in First Amendment activity. See id.; Lacey, 693
F.3d at 917; Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). In contrast, in
this case, Plaintiff does not contend that he was engaging in any sort of First Amendment activity
before Officer Defendants engaged in their allegedly unlawful actions. Rather, Plaintiff’s theory
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focuses solely on the impact of Officer Defendants’ actions on Plaintiff’s future First Amendment
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The record is devoid of evidence from which a fact-finder could infer that preventing
Plaintiff from petitioning the family court was a but-for cause of Officer Defendants’ investigation
of Plaintiff. See Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009). There is no evidence that
Officer Defendants knew of the details of Plaintiff’s custody arrangement with Mary or had any
desire to affect Plaintiff’s rights to petition the family court to modify that arrangement. The only
link that Plaintiff suggests is that Mike and Mary Howard communicated information about their
financial status and custody arrangement to Officer Defendants. ECF No. 51 at 9-12. Yet, there is
no evidence that Mike or Mary communicated this information to Officer Defendants. In fact, Mike
has testified that he did not even know the nature of Mary’s custody arrangement with Plaintiff.
Mike Depo. at 106. Because there is no record evidence that Officer Defendants even knew about
the custody arrangement, the Court finds that Officer Defendants could not have undertaken the
actions in this case for the purpose of preventing Plaintiff from vindicating his right to petition the
court regarding the custody arrangement. 10 Therefore, the Court finds that Plaintiff’s First
Amendment theory fails as a matter of law. 11

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The County’s Liability

Plaintiff further contends that San Benito County is liable for the actions of Turturici and
Lamonica under the Monell v. Department of Social Service of City of New York, 436 U.S. 658
(1978), because the County ratified the actions of the Officer Defendants. See ECF No. 1 at ¶¶ 4953. The Court, however, need not address the question of whether municipal liability is appropriate

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Plaintiff was not ultimately deterred from petitioning the family courts. In fact, Plaintiff
stipulated to the increase in his child support after he concluded that the increased amount was
reasonable. Johnson Depo. at 134-35. While this fact is not dispositive, since the ultimate question
is whether Officer Defendants’ conduct would have chilled a person of ordinary firmness from
First Amendment activity, see Mendocino Envtl. Ctr., 192 F.3d at 1300, the Court nevertheless
finds this fact relevant.
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In addition, summary judgment is also appropriate because the absence of probable cause is an
essential element of a First Amendment retaliatory prosecution claim. See Hartman v. Moore, 547
U.S. 250 (2006). As discussed above, there was probable cause for the arrest and prosecution here.
Accordingly, Plaintiff’s First Amendment retaliation claim would fail even if he could establish
but-for causation.
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here under a ratification theory because the Court concludes that there are no facts supporting the
contention that Turturici or Lamonica violated Plaintiff’s constitutional rights. 12 See Forrett v.
Richardson, 112 F.3d 416, 421 (9th Cir. 1997) (“Because we conclude that the officers did not
violate [plaintiff’s] constitutional rights, neither [the police chief] nor the City can be liable under
section 1983.”). Accordingly, the Court concludes that the County, like Officer Defendants, is
entitled to summary judgment.
IV.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motions for Summary

Judgment.

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IT IS SO ORDERED.
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Dated: December 3, 2013

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LUCY H. KOH
United States District Judge

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Nevertheless, Plaintiff has not pointed to any facts in the record that establish that the actions of
Turturici and Lamonica were ratified by an official with final policymaking authority (i.e., the
person who, as a matter of state law, had final policymaking authority and whose acts may fairly be
said to represent official policy in the area of decision). See Ulrich v. City & Cnty. of San
Francisco, 308 F.3d 968, 985 (9th Cir. 2002). At best, Plaintiff has contended that Turturici
himself had significant authority due to the particularities of the Sheriff’s Office. The Court finds
that the record is devoid of facts to support this theory.
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