Degroot et al v. United States of America et al

Filing 46

ORDER: Granting Defendant's 43 Motion to Amend Answer and Granting Defendant's 36 Motion for Summary Judgment. Signed by Judge Marilyn L. Huff on 9/5/2017. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:15-cv-02145-H-NLS

ANDREW HARRY DEGROOT, and
TERESA DEGROOT

ORDER:

Plaintiffs,
v.

GRANTING DEFENDANT’S
MOTION TO AMEND ANSWER

UNITED STATES OF AMERICA,
Defendant.

[Doc. No. 43]

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GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

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[Doc. No. 36]

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On September 25, 2015, Plaintiffs Andrew Harry DeGroot and Teresa DeGroot

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(“Plaintiffs”) filed an action in the Southern District of California against Border Patrol

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Agents Dustin Blatchley, Luis Gutierrez, Romel Madlangbayan, Edwin Mendivil,

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Enrique Penagos, Alberto Vallina, and the United States of America. (Doc. No. 1.) On

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February 16, 2016, Plaintiffs filed a First Amended Complaint (“FAC”), only asserting

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claims against Defendants Enrique Penagos and the United States of America

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(“Defendants”), alleging excessive force and failure to supervise under Bivens, assault
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and battery, intentional infliction of emotional distress, negligence, negligent infliction of

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emotional distress, violation of the Unruh Act, false arrest and imprisonment, and civil

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conspiracy. (Doc. No. 4.) On April 13, 2016, Defendants filed a motion to dismiss

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Plaintiffs’ FAC. (Doc. No. 11.) On June 17, 2016, this Court granted Defendants’

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motion in part and dismissed both Bivens claims as time-barred. (Doc. No. 17.) The

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Court also dismissed Plaintiffs’ Unruh Act claim and civil conspiracy claims. (Id.) The

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Court also dismissed all claims against Defendant Penagos, substituting the United States

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(“Defendant”) in his place. (Id.) On July 20, 2016, Defendant filed an answer to

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Plaintiffs’ FAC. (Doc. No. 18.) On July 17, 2017, Defendant filed a motion for

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summary judgment on Plaintiffs’ claims. (Doc. No. 36.) Defendant argues that

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DeGroot’s arrest was supported by probable cause, and consequently, all of Plaintiffs’

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causes of action should fail as a matter of law. (Id.) On July 24, 2017, Plaintiffs filed a

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response in opposition to Defendant’s motion for summary judgment. (Doc. No. 37.)

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Along with their opposition, Plaintiffs filed a motion for default judgment, arguing that

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Defendant had failed to answer their claim of assault and battery. (Doc. No. 38.) On

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July 31, 2017, Defendant filed a reply to Plaintiffs’ opposition. (Doc. No. 40.) On

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August 3, 2017, the Court denied Plaintiffs’ motion for default judgment and allowed

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Defendant to file a motion to amend the pleadings. (Doc. No. 42.) On August 10, 2017,

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Defendant filed a motion to amend their answer. (Doc. No. 43.) Plaintiff did not oppose

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the motion to amend.

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On September 5, 2017, the Court held a hearing to address both the motion to

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amend and the motion for summary judgment. (Doc. No. 44.) At the hearing, Attorney

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Michael Garabed appeared for the Defendant and Attorney Victor Torres appeared for the

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Plaintiffs. (Doc. No. 44.) At the hearing, Plaintiffs confirmed that they did not oppose

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the motion to amend and Defendant subsequently filed the amended answer. (Doc.

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No. 45.)

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BACKGROUND

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On March 27, 2013, Plaintiff Andrew DeGroot (“DeGroot”) was stopped at a

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Border Patrol checkpoint while driving a tractor-trailer. (Doc. No. 29-3 at 2.) As

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DeGroot drove through the inspection area, he displayed his middle finger to the agents

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on duty and used his cellular telephone to record a video of them. (Id. at 1.) Agent

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Penagos approached the vehicle and asked DeGroot to stop recording and to put the

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camera down. (Id. at 3.) DeGroot refused to comply and, after an altercation with Agent

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Penagos, was arrested. (Id. at 4, 6-8.)

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On May 15. 2013, DeGroot was indicted by a grand jury for violating 18 U.S.C.

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111(a)(1). (Doc. No. 26-1 at 2; ECF Doc. 1 (Indictment) in Case No. 13-cr-1769.) Four

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months later, DeGroot was found not guilty of this charge. (Doc. No. 26-1 at 2); U.S.A.

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v. DeGroot, No. 13-cr-01769-L-1 (ECF No. 62, Verdict). Plaintiffs subsequently sued

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the United States and various border patrol agents, alleging violations of Degroot’s

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federal and state rights. (Doc. No. 1; Doc. No. 4.)

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Plaintiffs’ remaining claims include state law tort actions for false arrest and

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imprisonment, intentional infliction of emotional distress, assault and battery, negligence,

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and negligent infliction of emotional distress. (See Doc. No. 17.) Defendant moves for

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summary judgment on all claims. (Doc. No. 36 at 2.) Plaintiffs oppose, arguing that

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questions of fact remain. (Doc. No. 37.)

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DISCUSSION
I.

STANDARD FOR AMENDING THE PLEADINGS

Federal Rule of Civil Procedure 15(a)(1) generally allows parties leave to amend

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their pleadings as a matter of right within 21 days after service. “In all other cases, a

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party may amend its pleading only with the opposing party’s written consent or the

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court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ.

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P. 15(a)(2). The Ninth Circuit has instructed that this policy is “to be applied with

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extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th

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Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th
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Cir. 1990)). In applying Rule 15, courts consider various factors including “bad faith,

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undue delay, prejudice to the opposing party, futility of amendment,” and whether there

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were previous amendments. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).

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II.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the moving party shows there is no genuine dispute

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of material fact and they are entitled to judgment as a matter of law. Celotex Corp. v.

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Catrett, 477 U.S. 317, 322 (1986). There is no genuine dispute if “the record taken as a

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whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita

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Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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The moving party bears the initial burden of producing evidence showing they are

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entitled to summary judgment. Celotex Corp., 477 U.S. at 330. The moving party can

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satisfy this burden in two ways: (1) by presenting evidence that negates an essential

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element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party

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failed to establish an essential element of the nonmoving party’s case that the nonmoving

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party bears the burden of proving at trial. Id. at 323. If the moving party satisfies their

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initial burden, then the burden shifts to the nonmoving party to introduce evidence

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showing there is a genuine dispute of material fact. Id. at 331. A fact is material when,

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under the governing substantive law, it could affect the outcome of the case. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To satisfy its burden, the non-moving

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party “may not rest upon mere allegations or denials of his pleadings.” Id. Rather, the

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nonmoving party “must present affirmative evidence . . . from which a jury might return a

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verdict in his favor.” Id. Facts and inferences are to be viewed in the light most

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favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

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III.

ANALYSIS

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A. Motion to Amend the Answer

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Defendant moves to amend its answer, in order to deny Plaintiffs’ allegations

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regarding the assault and battery claim. On June 17, 2016, the Court dismissed Plaintiffs’

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claims against Agent Penagos and substituted Defendant in his place. (Doc. No. 17.)
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When Defendant subsequently answered Plaintiffs’ complaint, it mistakenly believed that

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the assault and battery claim, plead only against Agent Penagos, had been dismissed.

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(Doc. No. 18, see also Doc. No. 43-1 at 2.) As such, Defendant did not answer the

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assault and battery claim but, rather, indicated that “[t]his claim has been dismissed with

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prejudice and no response is therefore required.” (Doc. No. 18 ¶¶ 58-62.) Plaintiff did

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not object to this portion of the answer until more than a year later, when it moved for

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default judgment on the assault and battery claim. (Doc. No. 38.) Defendant now

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acknowledges that the assault and battery claim was not dismissed, rather Defendant was

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substituted in Agent Penagos’ place, and seeks to answer the claim, denying all

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allegations. (Doc. No. 43-2 at 7-8.) Plaintiffs have not opposed the motion to amend.

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Courts should “freely give leave [to amend pleadings] when justice so requires.”

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Fed. R. Civ. P. 2. The Ninth Circuit requires this policy be applied with “extreme

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liberality.” Owens, 244 F.3d at 712. Defendant argues there is no prejudice to Plaintiffs

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because their amended answer simply denies all of Plaintiffs’ allegations, a position

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Plaintiffs’ have known about since the outset of the case. (Doc. No. 43-1 at 5.)

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Furthermore, Defendant argues there is no prejudice because the facts necessary to prove

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the assault and battery claim are the same as those required for Plaintiffs’ other claims.

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(Id.) Defendant argues there will be no undue delay because it will not requires

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additional discovery or alter the pretrial schedule. (Id. at 6.) Defendant similarly argues

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the amendment is not futile and there has been no showing of bad faith. (Id. at 6-7.)

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The Court agrees with Defendant that the factors weigh in favor of granting leave

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to amend. Plaintiffs were on notice that Defendant denied that factual allegations

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underlying the assault and battery claim. Furthermore, because the facts underlying the

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assault and battery claim are the same as those underlying the § 1983 Excessive Force

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claims, there is no need to conduct additional discovery. Lastly, Plaintiffs stated at the

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hearing that they did not oppose the motion to amend. As such, the Court grants

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Defendant’s motion to amend. (Doc. No. 43.)

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B. Motion for Summary Judgment
1. False Arrest and Imprisonment Claim
To prove a claim of false arrest and imprisonment, Plaintiffs must show an arrest

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without a warrant and without justification, followed by imprisonment and damages.

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Dragna v. White, 45 Cal.2d 469, 471 (1955); accord Wagda v. Town of Danville, 2017

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WL 2311294, *7 (N.D. Cal. May 26, 2017). Probable cause is a complete defense to a

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false arrest and imprisonment claim. Cabrera v. City of Huntington Park, 159 F.3d 374,

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380 (9th Cir. 1998) (“To prevail on his § 1983 claim for false arrest and imprisonment,

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Cabrera would have to demonstrate there was no probable cause to arrest him.”).

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Defendant has met its burden under Celotex of presenting evidence that Agent Penagos

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had probable cause to arrest Plaintiff Andrew DeGroot. 477 U.S. at 323. As such, the

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burden shifts to Plaintiffs to produce affirmative evidence showing a genuine dispute of

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material fact remains. Id. at 331. Plaintiffs have not satisfied their burden.

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“Probable cause exists when, under the totality of the circumstances known to the

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arresting officers (or within the knowledge of the other officers at the scene), a prudent

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person would believe the suspect had committed a crime.” Dubner v. City and County of

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San Francisco, 266 F.3d 959, 966 (9th Cir. 2001) (citing U.S. v. Garza, 980 F.2d 546, 550

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(9th Cir. 1992)). “Law enforcement officers may draw upon their experience and

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expertise in determining the existence of probable cause.” Garza, 980 F.2d at 550.

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Whether probable cause existed is generally a mixed question of fact and law. Ornelas v.

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U.S., 517 U.S. 690, 701 (1996). But when the facts are undisputed, whether an officer

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had probable cause to effect an arrest is a pure question of law. Tsao v. Desert Palace,

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Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (“The facts are undisputed, so the existence of

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probable cause is a question of law.”); accord Levin v. United Airlines, 158 Cal.App.4th

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1002, 1018 (2008) (“If the facts that gave rise to the arrest are undisputed, the issue of

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probable cause is a question of law for the trial court.”).

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Here, Plaintiff Andrew DeGroot was arrested following an altercation with Agent

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Penagos and charged with a violation of 18 U.S.C. § 111(a)(1). See U.S.A. v. DeGroot,
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No. 13-cr-01769-L-1 (ECF No. 1, Indictment). Section 111(a)(1) imposes criminal

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penalties on anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or

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interferes with” federal employees engaged in official duties. 18 U.S.C. § 111(a)(1). In

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enacting § 111, Congress intended to “accord[] maximum protection to federal officers

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by making prosecution for assaults upon them cognizable in the federal courts.” U.S. v.

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Feola, 420 U.S. 671, 685 (1975). As such, § 111(a) requires only general intent, United

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States v. Lamott, 831 F.3d 1153, 1156 (9th Cir. 2016), and “a defendant may be

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convicted of violating section 111 if he or she uses any force whatsoever against a federal

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officer,” U.S. v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014) (emphasis in

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original).
Plaintiffs admit that DeGroot used force to resist Agent Penagos. In his deposition,
DeGroot stated the following:

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Q: What happened immediately after he touched the phone?

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A: He put this – I was holding the phone like this (indicating), and he tried to

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block it. I pulled back. He followed my hand (indicating) and grabbed it.

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Q: What happened after that?

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A: He started pulling. And I – and I pulled back and I yanked it out of his

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hand.

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Q: So he attempted to grab the phone and you resisted? You pulled the

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phone away, right?

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A: Yes.

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(Doc. No. 29-3 at 5.) Thus, it was reasonable for Agent Penagos to believe that

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DeGroot had forcibly resisted, opposed, or impeded him—thereby justifying the

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arrest. Furthermore, probable cause is supported by the fact that a grand jury

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indicted DeGroot. DeGroot, No. 13-cr-01769-L-1 (ECF No. 1, Indictment);

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Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004) (grand jury

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indictment is prima facie evidence of probable cause).

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As the undisputed facts establish that DeGroot used force to resist, oppose, or
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impede Agent Penagos, DeGroot’s arrest was supported by probable cause. As such,

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Plaintiffs’ false arrest and imprisonment claim fails as a matter of law. Cabrera, 159 F.3d

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at 380. Thus, the Court grants summary judgment to Defendant on the false arrest and

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imprisonment claim.

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2. Negligence Claims

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To prove a claim of negligence, Plaintiffs must show duty on the part of

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Defendant, breach of that duty, causation, and damages. Marlene F. v. Affiliated

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Psychiatric Med. Clinic, Inc., 48 Cal.3d 583, 588 (1989). Like the false arrest claim,

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probable cause is a defense to Plaintiffs’ negligence claims.1 Bulfer v. Dobbins, 2011

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WL 530039, *13 (S.D. Cal. Feb. 7, 2001) (“If probable cause supported an arrest, a

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negligence claim based on that arrest fails as a matter of law.”). Because the undisputed

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facts establish probable cause, a conclusion that is supported by the grand jury

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indictment, the Court grants summary judgment to Defendant on Plaintiffs’ claims of

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negligence and negligent infliction of emotional distress.

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3. Intentional Infliction of Emotional Distress

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Where the non-moving party bears the burden of persuasion at trial, the moving

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party may satisfy its initial burden under Celotex by demonstrating “the nonmoving

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party’s evidence is insufficient to establish an essential element of the nonmoving party’s

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claim.” Celotex Corp., 477 U.S. at 331. Once the moving party satisfies their initial

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burden, the nonmoving party must come forward with sufficient evidence to establish any

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elements they must prove at trial. Id. at 322.

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To survive summary judgment on their intentional infliction of emotional distress

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claim, Plaintiffs must put forward evidence sufficient for a jury to find 1) extreme and

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outrageous conduct by Defendant with the intention of causing, or reckless disregard of

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In California, there is no separate tort of negligent infliction of emotional distress. Burgess v. Superior
Court, 2 Cal.4th 1064, 1072 (1992) (“[t]he negligent causing of emotional distress is not an independent
tort, but the tort of negligence”); accord Everett Assocs., Inc. v. Transcontinental Ins. Co., 159
F.Supp.2d 1196, 1204 (N.D. Cal. 2001) (“Negligent infliction of emotional distress, although often
plead as a separate cause of action, is a subcategory of the tort of negligence.”).
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the probability of causing, emotional distress; 2) that Plaintiffs suffered severe or extreme

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emotional distress; and 3) Defendant’s outrageous conduct was the actual and proximate

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causation of the emotional distress. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir.

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2009). Plaintiffs have not satisfied this burden.

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For example, Plaintiffs have put forward no evidence showing extreme and

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outrageous conduct by Defendant or its agents. Extreme and outrageous conduct is

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“conduct so extreme as to exceed all bounds of that usually tolerated in a civilized

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community”. Chang v. Lederman, 172 Cal.App.4th 67, 86 (2009). Here, the only

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evidence Plaintiffs have submitted consists of selections of DeGroot’s deposition. (Doc.

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No. 29-3.) Viewed in the light most favorable to Plaintiffs, DeGroot’s testimony only

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establishes that Agent Penagos stopped DeGroot at a checkpoint, (id. at 2, ln. 3-10),

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requested that DeGroot put his camera away, (id. at 3, ln. 7-9), attempted to confiscate

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the phone after DeGroot refused to comply, (id. at 4, ln. 1-3), and then arrested DeGroot

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following a struggle, (id. at 6, ln. 9-21). Plaintiffs claim that, in the process of being

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arrested, someone jumped on DeGroot’s back and drove him to the pavement, (id. at 7,

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ln. 19-21), but offer no evidence this force was unreasonable or exceeded the amount

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incumbent for an arrest. See Graham v. Connor, 490 U.S. 386, 396 (“the right to make

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an arrest . . . carries with it the right to use some degree of physical coercion”); see also

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S.B. v. County of San Diego, -- F.3d --, 2017 WL 1959984, *4 (9th Cir. May 12, 2017)

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(“We must judge the reasonableness of a particular use of force from the perspective of a

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reasonable officer on the scene, rather than with 20/20 vision of hindsight.”) (internal

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quotation marks omitted). This evidence does not supports a finding of extreme and

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outrageous conduct. See also McFarland v. City of Clovis, 2017 WL 1348934, *17 (E.D.

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Cal. April 10, 2017) (“An arrest that is supported by probable cause is not a ‘false arrest’

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and is not extreme and outrageous.”).

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Plaintiffs have also failed to put forward facts showing that DeGroot suffered

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severe or extreme emotional distress arising from Defendant’s conduct. “Severe

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emotional distress means emotional distress of such substantial quality or enduring
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quality that no reasonable person in civilized society should be expected to endure it.”

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Kiseskey v. Carpenters’ Trust for So. California, 144 Cal.App.3d 222, 231 (1983); accord

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Steel v. City of San Diego, 726 F.Supp.2d 1172, 1192 (S.D. Cal. 2010). Plaintiffs have

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offered no evidence of any emotional distress, let alone distress of a substantial or

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enduring quality. Consequently, summary judgment is granted for Defendant on the

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intentional infliction of emotional distress claim.

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4. Assault and Battery

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Plaintiffs have also failed to satisfy their burden as to the assault and battery claim.
To prove a case of assault and battery arising from a lawful arrest by a law enforcement

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officer, Plaintiffs must show that unreasonable force was used and an injury occurred.

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Edson v. City of Anaheim, 63 Cal.App.4th, 1269, 1273 (1998); see also Galindo v. City

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of San Mateo, 2016 WL 7116927 *7 (N.D. Cal. 2016). Here, DeGroot testified that,

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during his arrest, someone jumped on his back and drove him to the ground. (Doc. No.

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29-3 at 7.) However, the record contains no facts to suggest this went beyond the amount

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of force typically employed during an arrest or that it was excessive. C.f. Blankenhorn v.

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City of Orange, 485 F.3d 463, 478 (9th Cir. 2007) (holding a jury could find excessive

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force where officers gang tackled plaintiff, punched him multiple times, pushed his face

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into the pavement by shoving a knee into the back of his neck and placing him in hobble

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restraints); Bushell-McIntyre v. City of San Jose, 252 Fed.Appx. 810, 812 (9th Cir. 2007)

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(holding a jury could find excessive force where an officer “applied a pain compliance

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control hold to [plaintiff], shoved her outside and slammed her against a car”).

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Furthermore, Plaintiffs have not offered evidence of any injury stemming from the

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alleged assault and battery. (See Doc. No. 29-3.) Plaintiffs have, thus, failed to come

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forward with evidence to establish this claim. Celotex Corp., 477 U.S. at 322.

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Consequently, summary judgment is granted for Defendant on Plaintiffs’ assault and

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battery claim.

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CONCLUSION

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For the foregoing reasons, the Court grants Defendant’s motion for summary

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judgment as to all claims. (Doc. No. 36.)

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IT IS SO ORDERED.

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DATED: September 5, 2017
Hon. Marilyn L. Huff
United States District Judge

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