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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN W. JENNISON,

CASE NO. 16cv1889-LAB (DHB)

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Plaintiff,

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

vs.
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SAN DIEGO COUNTY SHERIFF
DEPUTY C. CRAWFORD, et al.,
Defendants.

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John Jennison filed a motion to proceed in forma pauperis to commence an action

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against two police officers for falsely arresting him for driving under the influence. Courts may

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authorize the commencement of an action without prepayment of fees where a litigant makes

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a showing that they’re unable to pay. 28 U.S.C. § 1915. Jennison satisfied that requirement.

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But the Court “shall dismiss the case at any time if it determines that” the action is “frivolous,”

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“fails to state a claim on which relief may be granted,” or “seeks monetary relief against a

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defendant who is immune.” Id. The Court finds that Jennison hasn’t stated a plausible claim

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that he’s entitled to relief under federal law.

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Background

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About a year ago, Jennison had a 40 oz. beer with lunch. Within three hours of

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consuming that mammoth drink, he was on the road driving his automobile. While navigating

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narrow turns on Highway 76, Jennison crossed the double lines on the road to avoid

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fishtailing—he says his station wagon was carrying a desk and a wheelchair. Officer

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Crawford saw Jennison driving on the wrong side of the road so he pulled him over.

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Crawford observed that Jennison’s eyes were "red/watery” and he “detect[ed] the

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smell of alcohol" on him. Jennison admitted that he had recently consumed a 40 oz. beer,

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but maintained that he was deliberately crossing the double lines to avoid fishtailing.

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California Highway Patrol Officer Ontiveros soon arrived on the scene.

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Ontiveros administered field sobriety tests and “detected six (6) clues” of intoxication

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under the “horizontal gaze nystagmus” test (HGN). Jennison maintains that he performed the

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other field sobriety tests without a problem, but concedes that his blood alcohol content

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(BAC) was “arguably” between “.04 and .059" at the time of the field sobriety tests. He

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refused to submit to a breathalyzer.

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Officer Ontiveros arrested Jennison for driving under the influence. When the officer

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dropped Jennison off at the Vista Detention Center—about two to six hours later—Jennison

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had his blood alcohol content tested. The results showed a BAC of .03. Jennison was

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released.

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Jennison has now sued the officers alleging five state law claims and one federal

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claim for an unreasonable seizure in violation of his rights under the Fourth and Fourteenth

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Amendment.

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False Arrest

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To state a claim for an unreasonable seizure, or false arrest, Jennison needed to

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allege that the officers lacked probable cause for arresting him. "Probable cause arises when

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an officer has knowledge based on reasonably trustworthy information that the person

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arrested has committed a criminal offense." McSherry v. City of Long Beach, 584 F.3d 1129,

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1135 (9th Cir. 2009). Even accepting Jennison’s version of the story as true, he’s failed to

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plead facts that show the officers lacked probable cause.

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To begin with, Jennison’s complaint contains admissions that he violated two

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California laws. Jennison admits that he was driving on the wrong side of the road. Cal. Veh.

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Code § 21460(a). Based on that violation alone, Officer Crawford had probable cause to stop

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Jennison and issue him a citation. Jennison therefore hasn’t plausibly alleged that Officer

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Crawford lacked probable cause.
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Jennison also admits that he was driving after consuming 40 oz. of alcohol—that’s

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roughly four drinks. He doesn’t deny that when the officer pulled him over he had red and

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watery eyes, thick speech, smelled like alcohol, and that the officer detected six signs of

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impairment using the HGN test. Jennison even concedes that his BAC may have been as

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high as .59 during the stop. Probable cause is based on probabilities, Illionis v. Gates, 462

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U.S. 213, 232 (1983), and Jennison’s symptoms of intoxication and admission that he had

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been drinking, coupled with his refusal to submit to a breathalizer, provided probable cause

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for Officer Ontiveros to arrest him for drunk driving. Cal. Veh. Code § 23152.

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Jennison maintains that he can explain all of these guilty circumstances: He was on

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the wrong side of the road to avoid fishtailing; his eyes were red from staring at a computer

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screen; his speech was thick because he bites his tongue; the HGN test may not have been

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accurate because he was sitting down; he smelled like alcohol because he drank at lunch,

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but he’s a big guy—his BAC couldn’t have been that high. Even assuming all of these

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explanations ring true, they don’t eradicate probable cause. Likewise, they are unlikely to

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surmount the officers’ obvious defense of qualified immunity.

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Jennison also advances a second, more insidious theory of police misconduct—that

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what’s really going on here is that Officer Crawford is out to get him. Jennison alleges that

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before this arrest, Officer Crawford had encountered him while serving a warrant at the motor

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home compound where Jennison lives. According to Jennison, Crawford asked him if he was

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on methamphetamine, and when Jennison’s dog barked at Crawford, the officer pepper

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sprayed the dog.

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Several residents of the motor home compound were arrested on drug charges and

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outstanding warrants. Although Jennison wasn’t one of those arrested, he maintains that

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Crawford pulled him over, and had Ontiveros arrest him, as part of an effort to harass him.

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To bolster this allegation, Jennison relates that he “observed from the back seat of the patrol

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car that Deputy Crawford and Officer Ontiveros talked, smiled, and shook hands (as if they

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were concluding a mutually pleasing deal) just before Deputy Crawford left the scene.” But

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the retaliation theory is predominantly speculation on Jennison’s part, and not the stuff on
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which a competent civil complaint may be based. Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007).

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Jennison’s complaint fails to state a claim for relief under federal law, and the Court

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declines to exercise supplemental jurisdiction over his state claims. If Jennison believes he

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can fix the problems the Court has identified by amending his complaint, he may do so by

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or before April 21, 2017. If he fails to file an amended complaint, the Court will dismiss this

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action. Jennison’s motion to proceed in forma pauperis is DENIED.

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IT IS SO ORDERED.
DATED: March 31, 2017
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HONORABLE LARRY ALAN BURNS
United States District Judge

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