Lowry v. Metropolitan Transit et al

Filing 99

ORDER Denying Plaintiff's 66 Motion for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 3/12/12. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARYL LOWRY,

Case Nos. 09cv00882; 09cv00898;
09cv01141 BTM (WVG)
Plaintiff,

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v.

ORDER DENYING PLAINTIFF’S
MOTIONS FOR SUMMARY
JUDGMENT

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METROPOLITAN TRANSIT BOARD
MTBS, et al.,

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Defendant.

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On March 28, 2011, Plaintiff Daryl Lowry filed a five-page document entitled

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“COMPLAINT- Motion For Summary Judgment against Metropolitan Transit System and

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Heritage Security” in each of the three above-captioned related cases. (See Dkt. No. 78 in

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Case No. 09cv00882; Dkt. No. 55 in Case No. 09cv00898; Dkt. No. 66 in Case No.

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09cv01141.) For the reasons set forth below, the Court DENIES Plaintiff’s motion in its

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entirety in each of the above-captioned cases.

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I. Background

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These three related cases arise out of three separate encounters between Plaintiff

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and the various individual defendants occurring on or about San Diego’s public transportation

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system.

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09cv00882; 09cv00898; 09cv01141 BTM (WVG)

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A.

Case No. 09cv00882

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Plaintiff’s First Amended Complaint in this case alleges that on September 15, 2007,

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trolley security officers Jerrod Gressett and Torrence Joseph committed constitutional and

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state-law violations during the course of an altercation with Plaintiff as he exited the “929

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bus” at “12th and Imperial.” (See Order Granting in Part and Denying in Part Motions to

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Dismiss, No. 09cv00882, Dkt. No. 55 at 1-2.) Plaintiff’s First Amended Complaint raised

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eight separate constitutional and state law causes of action against Defendants Metropolitan

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Transit System (“MTS”) (erroneously sued as Metropolitan Transit Board MTBS), Heritage

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Security Services (“Heritage”), Torrence Joseph, and Jerrod Gressett. (See Dkt. No. 36.)

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The Court granted in part motions to dismiss filed by certain Defendants. (See Dkt. No. 55.)

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Plaintiff’s surviving claims in this case are his 42 U.S.C. § 1983 claims against the individual

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defendants and his state-law claims for assault and battery, false imprisonment and false

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arrest against Heritage and the individual defendants. (See Dkt. No. 55.)

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B.

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In this case, Plaintiff claims violations of his constitutional rights and several state-law

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causes of action based on an alleged altercation with security officers at the Old Town

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Trolley Station in San Diego on July 3, 2008. Surviving the motions to dismiss filed by MTS

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and Heritage are Plaintiff’s 42 U.S.C. § 1983 claims against MTS and Heritage, and his

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assault and battery, false imprisonment and false arrest claim against Heritage. (See Order

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re Motions to Dismiss, No. 09cv00898, Dkt. No. 37.) Torrence Joseph, a named defendant

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in this case, appears never to have been served.

Case No. 09cv00898

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C.

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This case arises out of claimed violations of Plaintiff’s constitutional and state-law

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rights during an alleged altercation with security officers Edwin Ambriz and Bobby Salas on

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a trolley near the Old Town Trolley Station in San Diego on April 15, 2009. Plaintiff’s

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remaining claims in this case are his 42 U.S.C. § 1983 claims against Defendants Ambriz

Case No. 09cv01141

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09cv00882; 09cv00898; 09cv01141 BTM (WVG)

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and Salas, and Plaintiff’s assault and battery and theft claims against Defendants Heritage,

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Ambriz, and Salas.1 (See Order re Motions to Dismiss, No. 09cv01141, Dkt. No. 41; Order

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re Motions to Dismiss, No. 09cv01141, Dkt. No. 48.)

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II. Discussion

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Summary judgment is appropriate where the moving party can show that “there is no

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

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of law.” Fed. R. Civ. P. 56(a). Federal Rule of Civil Procedure 56(c)(1) requires that the

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party seeking summary judgment must support its factual position by “(A) citing to particular

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parts of materials in the record, including depositions, documents, electronically stored

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information, affidavits or declarations, stipulations (including those made for purposes of the

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motion only), admissions, interrogatory answers, or other materials . . . .” This Court may

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“only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank

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of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e)).

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Plaintiff has wholly failed to introduce admissible evidence in support of his position. Rather,

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Plaintiff’s motion contains conclusory, unsworn allegations and hearsay statements,

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including, for example:

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“There was no crime ever committed at anytime by me, nor was the District

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Attorney’s of [sic] ever informed that there was ever a crime committed by me.”

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(Dkt. No. 78 at 2.)
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“Roger Bingham states that there [sic] waiting for blood alcohol test from San
Diego Police Department which they do not have[.]” (Id.)

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It is unclear whether Defendant Salas has been served. (See Dkt. No. 33.)
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09cv00882; 09cv00898; 09cv01141 BTM (WVG)

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3.

“On Tuesday March 15, 2011 at 5:30 pm Sam Sherman of Fletcher, Higgs, &

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Mack called me he told me that I signed citations in all 4 cases in which I never

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signed any Citation at all at anytime forgery was committed by Jerrod Gressett

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and his accomplice Torrence Joseph in which that was not my signature[.] ”

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(Id. at 3.)

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Plaintiff’s failure to direct the Court to any admissible evidence proving the absence of a

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dispute as to any material fact in this case renders Plaintiff unable to meet his burden on

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summary judgment. The Court therefore DENIES Plaintiff’s motion for summary judgment.

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See Fed. R. Civ. P. 56(e) in each of the above-captioned cases.2

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IT IS SO ORDERED.

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DATED: March 12, 2012

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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(See Dkt. No. 78 in Case No. 09cv00882; Dkt. No. 55 in Case No. 09cv00898; Dkt.
No. 66 in Case No. 09cv01141.)
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09cv00882; 09cv00898; 09cv01141 BTM (WVG)