Jennison v. San Diego County Sheriff et al

Filing 8

ORDER Denying 2 Motion to Proceed in forma pauperis. If an amended complaint is not filed on or before 4/21/2017, the Court will dismiss this action. Signed by Judge Larry Alan Burns on 3/31/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOHN W. JENNISON, CASE NO. 16cv1889-LAB (DHB) 11 Plaintiff, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS vs. 12 13 SAN DIEGO COUNTY SHERIFF DEPUTY C. CRAWFORD, et al., Defendants. 14 15 John Jennison filed a motion to proceed in forma pauperis to commence an action 16 against two police officers for falsely arresting him for driving under the influence. Courts may 17 authorize the commencement of an action without prepayment of fees where a litigant makes 18 a showing that they’re unable to pay. 28 U.S.C. § 1915. Jennison satisfied that requirement. 19 But the Court “shall dismiss the case at any time if it determines that” the action is “frivolous,” 20 “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a 21 defendant who is immune.” Id. The Court finds that Jennison hasn’t stated a plausible claim 22 that he’s entitled to relief under federal law. 23 Background 24 About a year ago, Jennison had a 40 oz. beer with lunch. Within three hours of 25 consuming that mammoth drink, he was on the road driving his automobile. While navigating 26 narrow turns on Highway 76, Jennison crossed the double lines on the road to avoid 27 fishtailing—he says his station wagon was carrying a desk and a wheelchair. Officer 28 Crawford saw Jennison driving on the wrong side of the road so he pulled him over. 1 1 Crawford observed that Jennison’s eyes were "red/watery” and he “detect[ed] the 2 smell of alcohol" on him. Jennison admitted that he had recently consumed a 40 oz. beer, 3 but maintained that he was deliberately crossing the double lines to avoid fishtailing. 4 California Highway Patrol Officer Ontiveros soon arrived on the scene. 5 Ontiveros administered field sobriety tests and “detected six (6) clues” of intoxication 6 under the “horizontal gaze nystagmus” test (HGN). Jennison maintains that he performed the 7 other field sobriety tests without a problem, but concedes that his blood alcohol content 8 (BAC) was “arguably” between “.04 and .059" at the time of the field sobriety tests. He 9 refused to submit to a breathalyzer. 10 Officer Ontiveros arrested Jennison for driving under the influence. When the officer 11 dropped Jennison off at the Vista Detention Center—about two to six hours later—Jennison 12 had his blood alcohol content tested. The results showed a BAC of .03. Jennison was 13 released. 14 Jennison has now sued the officers alleging five state law claims and one federal 15 claim for an unreasonable seizure in violation of his rights under the Fourth and Fourteenth 16 Amendment. 17 False Arrest 18 To state a claim for an unreasonable seizure, or false arrest, Jennison needed to 19 allege that the officers lacked probable cause for arresting him. "Probable cause arises when 20 an officer has knowledge based on reasonably trustworthy information that the person 21 arrested has committed a criminal offense." McSherry v. City of Long Beach, 584 F.3d 1129, 22 1135 (9th Cir. 2009). Even accepting Jennison’s version of the story as true, he’s failed to 23 plead facts that show the officers lacked probable cause. 24 To begin with, Jennison’s complaint contains admissions that he violated two 25 California laws. Jennison admits that he was driving on the wrong side of the road. Cal. Veh. 26 Code § 21460(a). Based on that violation alone, Officer Crawford had probable cause to stop 27 Jennison and issue him a citation. Jennison therefore hasn’t plausibly alleged that Officer 28 Crawford lacked probable cause. 2 1 Jennison also admits that he was driving after consuming 40 oz. of alcohol—that’s 2 roughly four drinks. He doesn’t deny that when the officer pulled him over he had red and 3 watery eyes, thick speech, smelled like alcohol, and that the officer detected six signs of 4 impairment using the HGN test. Jennison even concedes that his BAC may have been as 5 high as .59 during the stop. Probable cause is based on probabilities, Illionis v. Gates, 462 6 U.S. 213, 232 (1983), and Jennison’s symptoms of intoxication and admission that he had 7 been drinking, coupled with his refusal to submit to a breathalizer, provided probable cause 8 for Officer Ontiveros to arrest him for drunk driving. Cal. Veh. Code § 23152. 9 Jennison maintains that he can explain all of these guilty circumstances: He was on 10 the wrong side of the road to avoid fishtailing; his eyes were red from staring at a computer 11 screen; his speech was thick because he bites his tongue; the HGN test may not have been 12 accurate because he was sitting down; he smelled like alcohol because he drank at lunch, 13 but he’s a big guy—his BAC couldn’t have been that high. Even assuming all of these 14 explanations ring true, they don’t eradicate probable cause. Likewise, they are unlikely to 15 surmount the officers’ obvious defense of qualified immunity. 16 Jennison also advances a second, more insidious theory of police misconduct—that 17 what’s really going on here is that Officer Crawford is out to get him. Jennison alleges that 18 before this arrest, Officer Crawford had encountered him while serving a warrant at the motor 19 home compound where Jennison lives. According to Jennison, Crawford asked him if he was 20 on methamphetamine, and when Jennison’s dog barked at Crawford, the officer pepper 21 sprayed the dog. 22 Several residents of the motor home compound were arrested on drug charges and 23 outstanding warrants. Although Jennison wasn’t one of those arrested, he maintains that 24 Crawford pulled him over, and had Ontiveros arrest him, as part of an effort to harass him. 25 To bolster this allegation, Jennison relates that he “observed from the back seat of the patrol 26 car that Deputy Crawford and Officer Ontiveros talked, smiled, and shook hands (as if they 27 were concluding a mutually pleasing deal) just before Deputy Crawford left the scene.” But 28 the retaliation theory is predominantly speculation on Jennison’s part, and not the stuff on 3 1 which a competent civil complaint may be based. Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 555 (2007). 3 Jennison’s complaint fails to state a claim for relief under federal law, and the Court 4 declines to exercise supplemental jurisdiction over his state claims. If Jennison believes he 5 can fix the problems the Court has identified by amending his complaint, he may do so by 6 or before April 21, 2017. If he fails to file an amended complaint, the Court will dismiss this 7 action. Jennison’s motion to proceed in forma pauperis is DENIED. 8 9 IT IS SO ORDERED. DATED: March 31, 2017 ___________________________________ 10 11 HONORABLE LARRY ALAN BURNS United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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