Tillotson v. Dumanis et al

Filing 43

ORDER: The (Doc. 31 ) Motion for Summary Judgment filed by Defendants Bonnie Dumanis and the County of San Diego is granted and the (Doc. 32 ) Motion for Summary Judgment filed by Plaintiff Stephen Tillotson is denied. Signed by Judge William Q. Hayes on 2/28/2012. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHEN TILLOTSON, CASE NO. 10cv1343 WQH (MDD) 12 ORDER 15 Plaintiff, vs. BONNIE DUMANIS, individually and in her official capacity as District Attorney for the County of San Diego; COUNTY OF SAN DIEGO, a municipal corporation, 16 Defendants. 13 14 17 18 HAYES, Judge: The matters before the Court are the Motion for Summary Judgment filed by 19 20 21 22 23 24 25 26 Defendants Bonnie Dumanis and the County of San Diego (ECF No. 31) and the Motion for Summary Judgment filed by Plaintiff Stephen Tillotson (ECF No. 32). I. Background On June 25, 2010, Plaintiff Stephen Tillotson filed a Complaint (ECF No. 1) and on August 9, 2010, Plaintiff filed a First Amended Complaint pursuant to 42 U.S.C § 1983. (ECF No. 10). The First Amended Complaint alleges that Defendants violated Plaintiff’s Constitutional right to procedural and substantive due process1 by placing Plaintiff on the San 27 28 1 Plaintiff’s claim for violation of substantive due process was dismissed. -1- 10cv1343 WQH (MDD) 1 Diego County Brady2 Index and seeks injunctive relief and damages. 2 On August 23, 2010, Defendants filed a Motion to Dismiss. (ECF No. 13). On 3 November 8, 2010, this Court granted in part the Motion to Dismiss and dismissed Plaintiff’s 4 substantive due process claim and request for damages. (ECF No. 16). On December 15, 5 2010, Defendants filed an Answer. (ECF No. 17). 6 On October 27, 2011, Defendants filed a Motion for Summary Judgment. (ECF No. 7 31). Plaintiff filed an Opposition. (ECF No. 36). Defendants filed a Reply. (ECF No. 38). 8 On November 14, 2011, Plaintiff filed a Motion for Summary Judgment. (ECF No. 32). 9 10 Defendants filed an Opposition. (ECF No. 37). Plaintiff filed a Reply. (ECF No. 39). II. Undisputed Material Facts 11 In 1998, Plaintiff was employed as a law enforcement officer by the San Diego County 12 Sheriff’s Department. (Tillotson Decl., ECF No. 32-2 at 108). Plaintiff’s supervisor required 13 Plaintiff to participate in periodic firearm qualification shooting exercises. (Tillotson Depo., 14 ECF No. 31-5 at 21). In June 1998, Plaintiff told his supervisor that he attended a qualification 15 shoot that he did not actually attend. Id. at 20. Plaintiff gave his supervisor a certification card 16 from a prior shooting exercise as documentation that he had attended the most recent 17 qualification shoot. Id. at 22. Within the next 24 to 48 hours, Plaintiff told his supervisor that 18 he had “made a big mistake” and had “lied to him about [attending the qualification shoot] and 19 [that Plaintiff] felt bad about it.” Id. In December 1998, Plaintiff was fired for the incident 20 of dishonesty to his supervisor and presenting the prior shooting certification card as 21 documentation that he had attended the most recent qualification shoot. Id. at 25. 22 23 In June 2000, Plaintiff was hired by the Sycuan Tribal Police Department after fully disclosing the prior incident of dishonesty. (Tillotson Decl., ECF No. 32-2 at 108). 24 In the fall of 2008, Plaintiff applied to work as a Volunteer Reserve Police Officer for 25 the Coronado Police Department. Id. at 109. Plaintiff disclosed the prior incident of 26 dishonesty. Id. The City of Coronado Police Department contacted the San Diego District 27 Attorney’s Office to review Plaintiff’s prior incident of dishonesty and determine whether it 28 2 Maryland v. Brady, 373 U.S. 83 (1963) -2- 10cv1343 WQH (MDD) 1 required that Plaintiff be included on the Brady Index. Id. 2 Deputy District Attorney David Williams is the Brady Index coordinator for the San 3 Diego District Attorney’s Office. (ECF No. 31-3 at 1). Williams states that the San Diego 4 District Attorney’s Office maintains a Brady Index “so that [the San Diego County District 5 Attorney’s Office] can notify prosecutors when there is information about an officer that 6 should be reviewed for potential discovery when the officer is a witness on a prosecution 7 case.” (Williams Depo., ECF No. 32-1 at 39-40). In Brady, the United States Supreme Court 8 held that “suppression by the prosecution of evidence favorable to an accused upon request 9 violates due process where the evidence is material either to guilt or to punishment, 10 irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. In United 11 States v. Agurs, 427 U.S. 97 (1976), the Supreme Court held that the prosecution has the duty 12 to turn over material evidence favorable to the accused, even when the accused has not asked 13 for such evidence. Agurs, 427 U.S. at 106. In United States v. Bagley, 473 U.S. 667 (1985), 14 the Supreme Court held that a prosecutor also has a duty to disclose information that a criminal 15 defendant may use to impeach a government witness. Bagley, 473 U.S. at 676. In Giglio v. 16 United States, 405 U.S. 150 (1971), the Supreme Court held that, whether nondisclosure of 17 Brady information is a result of negligence or is intentional, it is the responsibility of the 18 prosecutor to ensure that there is communication of all relevant information on each case. 19 Giglio, 405 U.S. at 154-55. 20 The San Diego County District Attorney’s Office maintains three documents regarding 21 its Brady policy including: the Brady File Review Protocol, the San Diego County District 22 Attorney Brady Index FAQs, and the Legal Policies Guide. (Ex. to Williams Depo., ECF No. 23 31-5 at 78-83; ECF No. 32-1 at 155-157; Ex. to Gaspard Decl., ECF No. 32-2 at 2-4). In an 24 answer to an interrogatory which asked whether the San Diego County Brady documents 25 articulate a standard for when law enforcement officers should be placed on the San Diego 26 Count Brady Index, Defendant Dumanis responded, “No. The factors to be considered for 27 inclusion in the San Diego District Attorney’s Brady Index are articulated in Brady v. 28 Maryland and its progeny.” (Dumanis Interrogatories, ECF No. 32-1 at 30-31). -3- 10cv1343 WQH (MDD) 1 The San Diego District Attorney has delegated the authority to make decisions 2 regarding whether someone should be placed on the Brady Index to a committee of senior 3 deputy district attorneys. (Williams Depo., ECF No. 31-5 at 62). A member of the Brady 4 committee acts as a “gatekeeper” which is a “specific term of art [used by Defendant] for a 5 member of the Brady committee who acts as the gatekeeper of information from all other 6 sources.” (Williams Depo. ECF No. 32-1 at 139). 7 Plaintiff spoke with the Brady gatekeeper assigned to his case who asked Plaintiff to 8 submit a statement. (Tillotson Depo., ECF No. 31-5 at 30). On September 9, 2008, Plaintiff 9 submitted a voluntary statement to the Brady committee regarding why he should not be placed 10 on the Brady Index. Id. at 30, 86-99. 11 On October 29, 2008, Tillotson was placed on the Brady Index maintained by the San 12 Diego District Attorney’s Office. (ECF No. 31-5 at 134). On that same day, the San Diego 13 District Attorney’s Office sent Tillotson a letter explaining that he was being placed on the 14 Brady Index based on the prior incident of dishonesty stating: “Stephen Tillotson was fired 15 from the San Diego Sheriff’s Department on 12/18/98 for Dishonesty.” (ECF No. 134). The 16 letter stated that “[a]dditional information concerning this material is welcomed from the 17 officer or agency.” Id. The “Brady Index Frequently Asked Questions” also states that 18 “further information and input from the officer or agency is welcomed. Additional material or 19 information received from the officer or agency will be reviewed by the Committee to 20 determine if the screened material should be removed from the Brady Index, or that the 21 additional submitted material should be included in the Brady Index for review by DDAs in 22 the future along with the other Brady Index material.” (ECF No. 31-5 at 139). The document 23 also states that “[i]n the event additional information from the officer or other sources reviewed 24 by the Brady Committee results in the determination by the Brady Committee that the original 25 basis of Index inclusion no longer applies, the officer may be removed from the Index.” Id. 26 at 141-42. 27 In November 2008, after being notified of his inclusion on the San Diego County’s 28 Brady Index, the Sycuan Tribal Police Department terminated Plaintiff’s employment. -4- 10cv1343 WQH (MDD) 1 (Tillotson Decl., ECF No. 32-2 at 109). The Sycuan Tribal Police Department told Plaintiff 2 that his placement on the Brady Index was the reason for his termination. Id. 3 After being notified of his inclusion on the Brady Index, the Coronado Police 4 Department denied Plaintiff’s application to work as a Volunteer Reserve Police Officer. Id. 5 The Police Chief for the Coronado Police Department told Plaintiff that he was no longer being 6 considered for the position because of his placement on the Brady Index. Id. 7 After Plaintiff was placed on the San Diego District Attorney’s Brady Index, Plaintiff 8 applied for employment as a police office the City of Oceanside Police Department, the City 9 of San Diego Police Department and the Riverside County Sheriff’s Department. (Tillitson 10 Depo., ECF No. 31-5 at 5-6). Plaintiff did not receive an offer of employment. Id. Plaintiff 11 was not told why he did not receive an offer of employment from the Riverside County 12 Sheriff’s Department. Id. at 14. Plaintiff was told by an employee at the San Diego Police 13 Department that Plaintiff’s inclusion on the Brady Index “was a factor” for his denial of 14 employment. Id. at 13. Plaintiff was told that his inclusion on the Brady Index was the reason 15 he was not offered employment by the City of Oceanside Police Department. Id. at 7-8. 16 The San Diego County District Attorney’s Brady Index contains the names of 6 to 10 17 individuals who are still employed as police officers. (Williams Depo., ECF No. 31-5 at 74). 18 III. Contentions of the Parties 19 Plaintiff contends that Defendant violated his liberty interest in pursuing his chosen 20 profession because his placement on the Brady Index prevents him from pursuing a career as 21 a police officer. Plaintiff contends that no law enforcement agency will hire him. Plaintiff 22 contends that he was denied procedural due process protections on the grounds that there is no 23 single comprehensive Brady policy for San Diego. Plaintiff contends that the informal Brady 24 procedures “arbitrarily reject the materiality standard of Brady.” (ECF No. 32-2 at 11). 25 Plaintiff also contends that he could not have pursued his claim in state court because he is not 26 appealing the decision of an administrative agency. 27 Defendants contend that there is no liberty interest at stake in this case because Plaintiff 28 has not been permanently barred from public employment. (ECF No. 31 at 7). Defendants -5- 10cv1343 WQH (MDD) 1 contend that placement on San Diego County’s Brady Index does not result in a complete 2 prohibition of Plaintiff’s right to pursue his chosen profession of becoming a police officer in 3 other counties within California or in other states. Defendants contend that even if the Court 4 finds that Plaintiff had a liberty interest at stake in this case, Plaintiff was provided adequate 5 procedural protections on the grounds that: (1) Plaintiff received notice that the committee was 6 considering whether he should be placed on the Brady Index; (2) Plaintiff knew what conduct 7 made him a potential candidate for the Brady Index; (3) Plaintiff submitted written materials 8 to the Brady committee; (4) there was no need for an oral hearing because there were no 9 disputed issues of fact; (5) Plaintiff was provided a written explanation for the committee’s 10 decision to place him on the Brady Index; and (6) Plaintiff was informed that he could submit 11 additional information to the committee which would be reviewed to determine if he should 12 be removed from the Brady Index. Defendants contend that there are adequate state remedies 13 available to Plaintiff because Plaintiff could have filed a complaint in state court alleging a 14 violation of the due process clause of the California Constitution. (ECF No. 31 at 6; 38 at 3). 15 Summary judgment is appropriate if there is no genuine issue as to any material fact 16 and the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c). 17 The moving party has the initial burden of demonstrating that summary judgment is proper. 18 See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). The burden then shifts to the 19 opposing party to provide admissible evidence beyond the pleadings to show that summary 20 judgment is not appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986). “In 21 considering a motion for summary judgment, the court may not weigh the evidence or make 22 credibility determinations, and is required to draw all inferences in a light most favorable to 23 the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997); see also 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 25 To avoid summary judgment, the nonmovant must designate which specific facts show 26 that there is a genuine issue for trial. See Anderson, 477 U.S. at 256; Harper v. Wallingford, 27 877 F.2d 728, 731 (9th Cir. 1989). A “material” fact is one that is relevant to an element of 28 a claim or defense and whose existence might affect the outcome of the suit. Matsushita Elec. -6- 10cv1343 WQH (MDD) 1 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is 2 thus determined by the substantive law governing the claim or defense. See Anderson, 477 3 U.S. at 252; Celotex, 477 U.S. at 322; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 4 IV. Discussion 5 “A procedural due process claim has two distinct elements: (1) a deprivation of a 6 constitutionally protected liberty or property interest3, and (2) a denial of adequate procedural 7 protections.” Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 982 8 (9th Cir. 1998). 9 A. Liberty Interest 10 “[T]he right to ... follow a chosen profession free from unreasonable governmental 11 interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment ....” 12 Greene v. McElroy, 360 U.S. 474, 492 (1959). The liberty component of the Fourteenth 13 Amendment’s Due Process Clause may be violated by “a complete prohibition of the right to 14 engage in a [professional] calling.” Conn v. Gabbert, 526 U.S. 286, 291-92 (1999); see also 15 Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003). 16 The Brady Index maintained by the San Diego County District Attorney’s Office 17 enables prosecutors to be notified of “information about an officer that should be reviewed for 18 potential discovery when the officer is a witness on a prosecution case.” (Williams Depo., 19 ECF No. 32-1 at 39-40). “The factors to be considered for [an officer’s] inclusion in the San 20 Diego District Attorney’s Brady Index are articulated in Brady v. Maryland and its progeny.” 21 (Dumanis Interrogatories, ECF No. 32-1 at 30-31). 22 Plaintiff has submitted evidence that he was not hired bylaw enforcement agencies and 23 that he was told that he was not hired based on his inclusion on the Brady Index. However, 24 Plaintiff has failed to submit any evidence that law enforcement organizations are completely 25 prohibited from hiring an individual who is listed on the Brady Index. The evidence shows 26 that inclusion on the San Diego County District Attorney’s Brady Index is not an absolute bar 27 3 28 Plaintiff assets that his constitutionally protected liberty interest has been violated by a complete prohibition of his right to engage in his chosen profession. Plaintiff does not assert that a constitutionally protected property interest has been violated. -7- 10cv1343 WQH (MDD) 1 to employment as a police officer in San Diego County. The evidence shows that the Brady 2 Index contains the names of 6 to 10 individuals who are still employed as police officers 3 despite their placement on the Brady Index. (Williams Depo., ECF No. 31-5 at 74). Viewing 4 the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has shown that 5 inclusion on the San Diego District Attorney’s Brady Index may be considered a negative 6 factor for law enforcement employment. Plaintiff has failed to show that inclusion on a 7 District Attorney’s Brady Index is “a complete prohibition of the right to engage in a 8 [professional] calling.” Conn, 526 U.S. at 291-92. 9 The Court concludes that Plaintiff has failed to demonstrate the existence of an issue 10 of material fact with respect to his claim of deprivation of a constitutionally protected liberty 11 interest. See Celotex, 477 U.S. at 325. Accordingly, Defendants are entitled to summary 12 judgment on Plaintiff’s claim for violation of procedural due process. 13 B. Adequate Procedural Protections 14 “A threshold requirement to ... procedural due process claim is the plaintiff's showing 15 of a liberty or property interest protected by the Constitution.” Stiesberg v. State of Cal., 80 16 F.3d 353, 356 (9th Cir. 1996) (quoting Wedges/Ledges of California, Inc. v. City of Phoenix, 17 Ariz., 24 F.3d 56, 62 (9th Cir. 1994)). “[T]he requirements of due process are ‘flexible and 18 cal[l] for such procedural protections as the particular situation demands[]’” Wilkinson v. 19 Austin, 545 U.S. 209, 224 (2005) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see 20 also Mathews v. Eldridge, 424 U.S. 319, 335 (1976).4 Courts generally consider the following 21 factors to determine procedural due process: First, the private interest that will be affected by the official action; second, the 22 23 4 24 25 26 27 28 Defendants also contend that Plaintiff’s § 1983 claim is barred because he could have pursued a cause of action for violation of his California Constitutional right to due process. In Parratt v. Taylor, 451 U.S. 527 (1981), the Supreme Court held that a § 1983 claim does not exist for a random, unauthorized deprivation of liberty or property where there are adequate post-deprivation procedures are available under state law. See Parratt, 451 U.S. at 541-44. However, the Parratt bar does not apply to deliberate, prescribed conduct by state officials acting under authority of state procedures, regulations or directives. See Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). Plaintiff’s claim is not based on a random, unauthorized deprivation of liberty for which there are post-deprivation procedures are available under state law. Accordingly, Plaintiff’s claim is not barred by Parratt v. Taylor, 451 U.S. 527 (1981). -8- 10cv1343 WQH (MDD) 1 2 3 4 risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 5 Although Plaintiff has failed to meet the threshold requirement of showing of a 6 liberty interest protected by the Constitution, the Court will consider whether he was afforded 7 adequate procedural protections. In this case, the private interest that will be affected by the 8 official action is Plaintiff’s placement on the Brady Index and its affect on his potential 9 employment with a law enforcement agency. The principles of Brady v. Maryland and its 10 progeny guides the District Attorney’s Office’s decision regarding whether any particular 11 individual should be listed on the Brady Index. The evidence shows that prior to the Brady 12 committee’s review of Plaintiff’s case, Plaintiff was permitted an opportunity to submit a 13 voluntary statement regarding why he should not be placed on the Brady Index. (Tillotson 14 Depo., ECF No. 31-5 at 30, 86-99). The evidence shows that the Brady committee sent 15 Plaintiff a written explanation of their decision. The evidence shows that Plaintiff remains able 16 to submit additional material or information regarding his placement on the Brady Index which 17 would “be reviewed by the Committee to determine if the screened material should be removed 18 from the Brady Index.” (ECF No. 31-5 at 139). The risk of an erroneous deprivation of a 19 private interest through the procedures used is low. The Government’s interest in maintaining 20 the Brady Index is strong because disclosure of Brady information is the responsibility of the 21 prosecutor who must ensure that there is communication of all relevant information on each 22 case. See Giglio, 405 U.S. at 154-55. 23 Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff 24 was afforded adequate procedural protections on the grounds that (1) the principles of Brady 25 v. Maryland and its progeny guides the District Attorney’s Office’s decision regarding whether 26 any particular individual should be listed on the Brady Index; (2) an individual is permitted an 27 opportunity to submit a voluntary statement regarding why he should not be placed on the 28 Brady Index; (3) an individual is provided a written explanation of the Brady committee’s -9- 10cv1343 WQH (MDD) 1 decision; and an individual is permitted to submit additional material or information regarding 2 his placement on the Brady Index which is reviewed to determine if the individual should be 3 removed from the Brady Index. See Wilkinson, 545 U.S. at 229 (balancing the factors to 4 determine whether the requirements of procedural due process were met and finding as a 5 matter of law that they were). 6 The Court concludes that Plaintiff has failed to demonstrate the existence of an issue 7 of material fact with respect to his claim of denial of adequate procedural protections. See 8 Celotex, 477 U.S. at 325. Accordingly, Defendants are entitled to summary judgment on 9 Plaintiff’s claim for violation of procedural due process. 10 V. Conclusion 11 IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by 12 Defendants Bonnie Dumanis and the County of San Diego (ECF No. 31) is GRANTED and 13 the Motion for Summary Judgment filed by Plaintiff Stephen Tillotson (ECF No. 32) is 14 DENIED. 15 DATED: February 28, 2012 16 17 WILLIAM Q. HAYES United States District Judge 18 19 20 21 22 23 24 25 26 27 28 - 10 - 10cv1343 WQH (MDD)

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