Popescu v. City of San Diego, et al
Filing
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FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Court concludes Plaintiff failed to meet his burden of proving that Officer Pagan violated his constitutional rights by issuing 1 or more parking violations in a discriminatory manner based on Plaintiff's political or religious beliefs. Accordingly, the Court finds for Defendant Pagan and against Plaintiff Popescu. Signed by Magistrate Judge William McCurine, Jr. on 12/7/11.(All non-registered users served via U.S. Mail Service)(lao)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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VIRGIL POPESCU
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Plaintiff,
v.
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CITY OF SAN DIEGO, PARKING
MANAGEMENT DIVISION and ROBERT
PAGAN #8073,
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Defendants.
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Civil No. 06-CV-1577 WMc
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
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A bench trial was held before the Honorable William McCurine, Jr., in the above-entitled matter
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on November 29, November 30, and December 1, 2011. This Court, having considered the live
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testimony, the documentary evidence, the applicable law and the arguments of plaintiff pro se and
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defense counsel, HEREBY makes the following Findings of Fact and Conclusions of Law pursuant to
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Rule 52(a) of the Federal Rules of Civil Procedure.
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As set forth herein, the Court finds for Defendant Pagan and against Plaintiff Popescu, and
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concludes Plaintiff failed to meet his burden of proving that Officer Pagan violated his constitutional
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rights.
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Findings of Fact
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1.
Plaintiff and Defendant are both citizens of the United States.
2.
At all times material hereto Defendant was, and is, employed as a Parking Enforcement Officer
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II with the City of San Diego.
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3.
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shell, bearing California license plate 6G25628 (hereinafter referred to as “Datsun”).
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At all times material hereto Plaintiff was the owner of a red Datsun pickup truck with a camper
At all times material hereto Plaintiff was also the owner of a white GMC Suburban vehicle
bearing California license plate 2YLN851 (hereinafter referred to as “Suburban”).
5.
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Defendant Pagan issued 3 different parking citations to Plaintiff for illegally parking in an alley.
a.
The 1st ticket was issued on October 1, 2005 at 1000 hrs on the Datsun, which was
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illegally parked in the 4000 block of Euclid Avenue in the northwest section of the alley.
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The vehicle was parked 2'3" into the alley. [Defendant’s Exhibit 1]
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b.
The 2nd ticket was issued on November 16, 2005 at 1046 hrs on the Suburban which was
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illegally parked in the 4400 block of Estrella Avenue in the northwest section of the
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alley. 75% of the Suburban intruded into the alley. [Defendant’s Exhibit 3]
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c.
On December 14, 2005 at 1531 hrs. Defendant Pagan issued the 3rd ticket. This ticket
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was issued to the Datsun parked in the 4000 block of Euclid Avenue in the northwest
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section of the alley. The vehicle was illegally parked, intruding 1'5" into the alley.
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[Defendant’s Exhibit 4]
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6.
On October 1, 2005 at 0959 hours Defendant Pagan issued a parking violation citation on a
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Toyota vehicle illegally parked in the 4000 block of Euclid Avenue in the northwest corner of
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the alley. Defendant Pagan issued this ticket approximately 1 min. before he issued the 1st
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parking citation on Plaintiff’s Datsun. [Defendant’s Exhibit 2]
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7.
On December 14, 2005 at approximately 1531 hrs. Defendant Pagan issued a traffic citation to a
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white Dodge van for illegally parking in the 4000 block of Euclid Avenue in the northwest
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section of the alley. [Defendant’s Exhibit 7]
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8.
On December 14, 2005 at 1534 hrs Defendant Pagan issued a traffic citation to a Ford van
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illegally parked in the 4000 block of Euclid Avenue in the northwest section of the alley.
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[Defendant’s Exhibit 6 and 7]
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9.
All the above traffic citations were issued pursuant to Municipal Code section 86.10.3
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10.
At all times material hereto Daniel Dickel worked in the City Treasurer’s office as part of the
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Division of Parking Administration. Mr. Dickel has no responsibility for issuing traffic tickets
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or interpreting municipal codes of vehicle codes relating to illegal parking. His responsibilities
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begin after a parking ticket has been issued.
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With regard to the months of October, November and December 2005. Mr. Dickel testified as
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follows:
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a.
Mr. Pagan issued 25 citations in October for illegal parking in alleys.
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b.
Mr. Pagan issued 60 citations in November for illegal parking in alleys.
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c.
Mr. Pagan issued 59 citations in December for illegal parking in alleys.
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d.
All the above tickets were issued pursuant to Municipal Code section 86.10.3.
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e.
All the above citations were issued at or near the 4400 block of Euclid Avenue.
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Mr. Dickel testified that for calendar years 2005 and 2006 Defendant Pagan issued 21,171
parking tickets. Of that number, 2,296 were for violations of Municipal Code section 86.10.3.
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Plaintiff asserts Defendant was prejudiced against him because of religious and political signs
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and stickers Plaintiff had on his vehicle bumpers and on garages in front of which he worked.
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Plaintiff further contends Defendant Pagan singled him out for this invidious discriminatory
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treatment. Plaintiff offers six (6) bases for his belief that Pagan discriminated against them in
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violation of Plaintiff’s constitutional rights:
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a.
Defendant singled him out for discriminatory treatment.
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b.
Defendant’s last name is “Pagan”, thereby establishing in Plaintiff’s mind that Defendant
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is an atheist and hostile to Christian.
c.
In an interrogatory Plaintiff propounded to Defendant seeking Defendant’s religious
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beliefs and affiliations, Defendant objected. Plaintiff never moved to compel a further
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response to this interrogatory.
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d.
At Plaintiff’s criminal trial in state court, the prosecutor objected when Plaintiff asked
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during the trial whether Officer Pagan believed in God. The trial court sustained the
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objection.
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e.
Officer Pagan voted against Proposition A, the Proposition in the City of San Diego
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advocating the preservation of the Christian cross on Mount Soledad. Plaintiff asserts he
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knows this assertion to be true because on July 25, 2005. The Plaintiff went to the City
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of San Diego’s Registrar of Voters and a worker there told him Defendant Pagan (a) is a
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registered Democrat and (b) voted against Proposition A.
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f.
October 1, 2005.
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The public vote on Proposition A occurred before officer taking issued the 1st ticket on
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The Plaintiff’s argument in paragraph 13(b) above is absurd on its face, reprehensible, shameless
and utterly foolish.
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Officer Pagan testified that he is religious, was raised in the Catholic church and believes in God.
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Plaintiff’s argument in 13(c) above is without merit; Plaintiff never moved to compel a response
to the interrogatory.
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The Plaintiff’s argument and 13(d) above irrelevant and without merit. The trial court sustained
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the prosecutor’s objection and did not compel Officer Pagan to answer the question regarding his
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religious beliefs.
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The Plaintiff’s argument in 13(e) is so devoid of credibility as to border on perjury. It is beyond
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the pale of credibility that an employee of the City of San Diego’s Registrar of Voters would
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know, or be able to tell Plaintiff, how Officer Pagan voted on Proposition A.
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At all times material hereto Officer Pagan was a resident of the City of Chula Vista, not a
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resident of the City of San Diego and, therefore, not eligible to vote on Proposition A, an
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initiative only for eligible voters in the City of San Diego. Officer Pagan testified that, had he
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been able to vote in San Diego’s municipal election regarding Proposition A, he would have
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voted in favor of the Proposition.
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20.
Officer Pagan testified that he never saw, or took notice of, any religious or political bumper
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stickers or signs on any of Plaintiff’s vehicles or on the garages in front of which Plaintiff often
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worked before Pagan ticketed the Plaintiff’s vehicles or at the time he ticketed Plaintiff’s
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vehicles.
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21.
Officer Pagan and Plaintiff never met before Plaintiff filed the subject lawsuit.
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22.
According to the testimony of Daniel Dickel and Officer Pagan a Parking Enforcement Officer
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has the discretion to determine whether to issue a parking citation under Municipal Code section
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86.10.3.
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23.
Plaintiff failed to produce any credible evidence that Officer Pagan exercised his discretion in
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issuing the 3 parking citations to Plaintiff with invidious, constitutionally prohibited, discrimi-
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natory intent. The only credible evidence is that Officer Pagan appropriately exercised his
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discretion in determining to issue the subject three (3) parking citations under Municipal Code
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section 86.10.3.
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citation to Plaintiff’s Datsun or Suburban, Plaintiff’s vehicle was intruding into the alley.
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The undisputed testimony is that the City of San Diego interprets Municipal Code section
86.10.3 so as to give City Parking Enforcement Officers authority to issue a parking citation
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The undisputed evidence is that in each of the 3 instances when Officer Pagan issued a parking
under Municipal Code section 86.10.3 if a vehicle intrudes into the alley.
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The undisputed testimony is that the City of San Diego interprets Municipal Code section
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86.10.3 so as to give City Parking Enforcement Officers discretion to determine whether to issue
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a parking citation under Municipal Code section 86.10.3.
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manner.
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Municipal Code section 86.10.3 is facially neutral and appears to be administered in a neutral
There is no credible evidence that Officer Pagan issued the 3 citations against Plaintiff’s vehicles
with a discriminatory intent, purpose or motive.
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Plaintiff did not produce any medical records, medical evidence or medical bills which show, or
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tend to show, any illness, sickness or physical or emotional harm proximately caused by any act
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or omission of Officer Pagan.
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30.
Plaintiff did not offer any expert testimony proving:
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a.
any diagnosis or prognosis of Plaintiff’s health, or
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b.
any causal link between Plaintiff’s health and any act or omission by Officer Pagan.
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To the extent a conclusion of law should be treated as a finding of fact it is so incorporated here.
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II. CONCLUSIONS OF LAW
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Plaintiff has the burden to prove by a preponderance of the evidence that Officer Pagan violated
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his constitutional rights by issuing 1 or more parking violations in a discriminatory manner based
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on Plaintiff’s political or religious beliefs. McCleskey v. Kemp, 481 U.S. 279, 282 (1987) and
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Lee v. City of Los Angeles, 250 F.3d 668, 686. Plaintiff has failed to carry his burden. There
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was no credible evidence that Officer Pagan issued the 3 citations against Plaintiff with a
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discriminatory intent, purpose or motive.
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2.
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emotional harm and (b) that any such harm proximately resulted from an act or omission of the
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part of Officer Pagan.
3.
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4.
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Municipal Code section 86.10.3 is facially neutral and appears to be administered in a neutral
manner.
6.
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Municipal Code section 86.10.3 gives City Parking Enforcement Officers discretion to determine
whether to issue a parking citation under Municipal Code section 86.10.3.
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Municipal Code section 86.10.3 gives City Parking Enforcement Officers authority to issue a
parking citation under Municipal Code section 86.10.3 if a vehicle intrudes into the alley.
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Plaintiff must also prove by a preponderance of the evidence that (a) he has suffered physical or
Officer Pagan appropriately exercised his discretion under Municipal Code 86.10.3 in all 3
instances in which he issued a parking citation against Plaintiff.
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The City of San Diego’s interpretation of Municipal Code section 86.10.3 so as to give City
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Parking Enforcement Officers authority to issue a parking citation under Municipal Code section
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86.10.3 if a vehicle intrudes into the alley is not unreasonable, arbitrary, capricious or constitu-
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tionally infirm.
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8.
The City of San Diego’s interpretation of Municipal Code section 86.10.3 so as to give City
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Parking Enforcement Officers discretion to determine whether to issue a parking citation under
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that Code section is not unreasonable, arbitrary or capricious or constitutionally infirm.
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9.
Plaintiff has not carried his burden of proof that (a) he suffered any physical or emotional harm
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or (b) that any such alleged harm proximately resulted from any act or omission of the part of
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Officer Pagan.
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10.
To the extent a Finding of Fact should be treated as a conclusion of law, it is incorporated here as
a Finding.
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III. CONCLUSION
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For the aforementioned reasons, the Court concludes Plaintiff failed to meet his burden of
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proving that Officer Pagan violated his constitutional rights by issuing 1 or more parking violations in a
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discriminatory manner based on Plaintiff’s political or religious beliefs. Accordingly, the Court finds
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for Defendant Pagan and against Plaintiff Popescu.
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IT IS SO ORDERED.
DATED: December 7, 2011
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Hon. William McCurine, Jr.
U.S. Magistrate Judge, U.S. District Court
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