Adkins v. Limtiaco et al

Filing 164

Opinion and Order granting in part and denying in part 115 Motion to Dismiss Second Amended Complaint filed by Paul Suba. The court hereby grants the Motion as to Counts I, II and IX and dismisses those counts WITHOUT leave to amend. The court als o hereby grants the Motion as to Count III, but dismisses that count WITH leave to amend. Finally, the court hereby denies the Motion as to Counts IV and VIII, except that the reference to "Theft of Property" in Count VIII is hereby STRICKEN. Plaintiff shall file his Third Amended Complaint by October 24, 2011, if at all. Signed by Chief Judge Frances M. Tydingco-Gatewood on 9/22/2011. (fad, )

IN THE DISTRICT COURT OF GUAM
Case Number: 1:09-cv-00029

JAMES L. ADKINS,
Plaintiff,
v.
PAUL SUBA et al.,
Defendants.

OPINION AND ORDER RE:
MOTION TO DISMISS SECOND
AMENDED COMPLAINT FILED BY
DEFENDANT SUBA

1

Before the court in this wrongful-arrest-and-detention case is the “Motion to Dismiss

2

Second Amended Complaint” (“the Motion”) filed by Defendant PAUL SUBA. See Docket

3

No. 115. As explained below, the Motion is GRANTED IN PART and DENIED IN

4

PART.

5

(I)

BACKGROUND1

6

(A)

7

On October 4, 2009, Plaintiff JAMES L. ADKINS (“Plaintiff’) was driving down

8

Paseo de Oro in Tamuning. See Docket No. 103 at ¶12. Rounding a curve he saw, on his

9

left, a truck that had crashed into a wall. Id. On his right, he saw some Guam Police

10

Department (“GPD”) personnel standing in the shade of a house across the street from the

11

crash site. Id. There were no police officers on the left, near the crash site, nor were there

12

any obstacles preventing persons from approaching the crash site, such as “crime scene tape”

13

or a roadblock. Id. Plaintiff pulled over to the right-hand side of the road and, without

14

leaving his car, took photos of the crash site using the camera feature of his cell phone. Id.

Plaintiff’s Arrest and Detention

1

On a motion to dismiss, the court takes “all well-pleaded factual allegations as true.” Hebbe v.
Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). For its statement of facts, then, the court relies entirely on the
Second Amended Complaint.

Page 1 of 16

1

“As [P]laintiff was driving away,” a GPD officer stepped out in front of his car and

2

told him to stop. Docket No. 104 at ¶13. When Plaintiff stopped his car, the officer

3

(“Officer One”) told him that he could not take pictures. Id. Plaintiff said something like:

4

“There is nothing wrong with taking pictures.” Id. Officer One spoke with a second police

5

officer (“Officer Two”) who was present, and then demanded that the Plaintiff give him the

6

cell phone. Id. Plaintiff refused. Id. Officer One again demanded the cell phone, and

7

Plaintiff again refused. Id.

8
9

Plaintiff believes that Defendants Anciano and Artui are Officers One and Two, but
he is not sure which was which. See Docket No. 103 at ¶¶13, 14.

10

Officer Two then approached Plaintiff’s car and also demanded the cell phone. See

11

Docket No. 103 at ¶14. Plaintiff said something like: “There’s no law against taking

12

pictures.” Id. Officer Two again demanded the cell phone, and Plaintiff again refused. Id.

13

Officer Two then ordered the Plaintiff out of his car. Id. Plaintiff said something like: “The

14

only way I will get out is if I am under arrest.” Id. Officer Two then told Plaintiff that he

15

was under arrest, whereupon Plaintiff got out of his car. Id.

16

One of the GPD officers handcuffed Plaintiff and put him in a police car. See Docket

17

No. 103 at ¶16. While in the police car, Plaintiff retrieved his cell phone and called his wife

18

to tell her he had been arrested and to ask her to call his attorney. Id. At that point, either

19

Officer One or Officer Two grabbed Plaintiff’s cell phone and took it away. Id.

20

Plaintiff was driven to the Tumon police station, where he was incarcerated. See

21

Docket No. 103 at ¶17. When Plaintiff’s lawyer, Donald Calvo, arrived, a police sergeant

22

demanded that Mr. Calvo delete the photos stored on Plaintiff’s cell phone. Id. Mr. Calvo

23

refused. Id. Plaintiff was then brought to a conference room, where a police sergeant

24

informed Plaintiff that the accident had been a serious one, and that the photo-taking incident

25

was also serious and that they were trying to figure out how to handle the case. Id. The

26

police sergeant then held out Plaintiff’s cell phone and demanded that he delete the pictures

27

from it. Id. This led Plaintiff to believe that the “deal on the table” was that he could go free

28

if he deleted the pictures. Id. Plaintiff refused. Id.
Page 2 of 16

1

A little while later, another police officer took Plaintiff to the Hagåtña police station

2

where he was booked, fingerprinted, and photographed. See Docket No. 103 at ¶18.

3

Plaintiff was restrained and detained from about 4:30 PM to 8:30 PM. Id.

4

After his release, Plaintiff was given a notice to appear, which instructed him to

5

appear in court on September 29, 2010. See Docket No. 103 at ¶20. In the notice to appear,

6

Plaintiff learned that he was charged with (1) “obstructing governmental function,” based on

7

Section 55.45 of Title 9, Guam Code Annotated (“the Obstruction Statute”), and (2) “failure

8

to comply,” based on Section 3503(d) of Title 16, Guam Code Annotated (“the Compliance

9

Statute”). Id. at ¶¶1, 20.

10

(B)

11

The day after Plaintiff’s arrest and detention—that is, on October 5, 2009—the Office

12

of the Attorney General (“OAG”) issued a “Prosecution Decline Memorandum” (“the

13

Memorandum”), in which it explained that it would not prosecute Plaintiff on the charge for

14

which he was arrested. See Docket No. 103 at ¶25; see also id., Exh. E (the Memorandum).

15

The Memorandum was addressed to the “GPD Records Division.” Id., Exh. E. It identified

16

the potential charge as “Obstructing Government Functions,” and stated that “[t]he arrest and

17

detention of the suspect(s) served as sufficient sanctions in this case, as the seriousness of

18

the offense [did] not warrant further legal action.” Id., Exh. E.

The “Prosecution Decline” Memorandum

19

(C)

20

Plaintiff asserts that members of the general public were not excluded from the

21

accident scene, nor from the road Plaintiff had been driving on. See Docket No. 103 at ¶15.

22

Other vehicles were traveling in both directions along Carmen Memorial Drive. Id. Plaintiff

23

also asserts that at least one other member of the general public had access to the accident

24

scene, insofar as an anonymous “online viewer” posted two digital photographs of the

25

accident scene on the website of local news station KUAM on October 4, 2009—the date of

26

the accident and of Plaintiff’s arrest and detention. Id. Plaintiff asserts, “[u]pon information

27

and belief,” that this “online viewer” was not stopped, detained, or arrested for taking

28

photographs of the accident, nor did GPD officers seize his or her camera. Id.

The Public’s Access to the Accident Scene

Page 3 of 16

1

(D)

2

At the Tumon police station, on the day of his arrest, Plaintiff signed the plastic

3

“custody bag” in which GPD was to keep his phone. See Docket No. 103 at ¶19. In affixing

4

his signature to the custody bag, Plaintiff had two witnesses: (1) his wife, and (2) a police

5

officer who showed Plaintiff his cell phone. Id.

Plaintiff’s Cell Phone

6

On March 10, 2010, Plaintiff went to the GPD Property Section at Tiyan to get his

7

cell phone. See Docket No. 103 at ¶23. Defendant JOHN F. TAITANO returned the phone,

8

along with a “GPD Evidence/Property Custody Receipt.” Id. However, Plaintiff noticed that

9

the custody bag was not the same one he had signed on October 4, 2009: his signature was

10

missing. Id. Plaintiff told Defendant Taitano that the custody bag was different. Id.

11

Plaintiff also found that his cell phone would not turn on. See Docket No. 103 at ¶26.

12

He sent the phone to Independent Technology Service, Inc. (“ITS”), a company specializing

13

in data recovery. Id. ITS determined that the data on Plaintiff’s cell phone were not

14

recoverable, because (1) the phone had been exposed to water, (2) the phone had been

15

completely erased, and/or (3) the digital memory card had been “blown” and rendered

16

useless, perhaps by the application of electric current. Id. During the time that the cell phone

17

was in Plaintiff’s possession, it was not immersed in or exposed to any water, nor had it been

18

erased, nor had electric current been applied to it. Id. at ¶28.

19

Studying the “GPD Evidence/Property Custody Receipt,” Plaintiff saw that his cell

20

phone was logged on the day of his arrest—October 4, 2009—at 4:48 PM by Defendant

21

Artui. See Docket No. 103 at ¶24; see also id., Exh. D (copy of the evidence/property

22

custody receipt). The next entry shows that the cell phone was logged in at 12:04 AM on

23

October 4 [sic], 2009, again by Defendant Artui. Id. at ¶24. On October 5, 2009, the cell

24

phone was logged in to an “evidence box,” and later that same day was logged in to the

25

“vault/bin.” Id. Nothing further occurred until December 7, 2009—four days after this

26

lawsuit was filed—when Defendant Taitano signed out the cell phone, at 3:05 PM, for

27

“retrieval of evidence.” Id. Defendant J. P. RODRIGUEZ also signed out the cell phone that

28

same day, at 3:15 PM, for “evidence analysis.” Id.
Page 4 of 16

1

(E)

2

Around January 26, 2010, Plaintiff put in an official request to GPD for “information

3

concerning, inter alia, the training and supervision provided to police officers regarding

4

vehicle stops, arrests, seizure of personal property; the detention, interrogation, or arrest of

5

individuals exercising their right of free speech; and preventing police officers from using

6

arrest and seizure of property as a form of summary punishment and to discipline officers

7

who do so or who condone such conduct.” Docket No. 103 at ¶30. GPD’s responses showed

8

that the General Orders regarding various police activities (e.g., field contact, handling and

9

processing of persons in custody, handling of evidence and property, etc.) had not been

10

updated in fifteen or more years. See id. at ¶31. GPD’s responses included no General

11

Orders concerning supervisory review of arrests, protection of individuals’ constitutional

12

rights, or the use of arrest and seizure as a form of summary discipline. See id.

Plaintiff’s Subsequent Research

13

In related research, Plaintiff also discovered that Defendant Anciano had been the

14

arresting officer in People v. Maysho, where the Superior Court of Guam dismissed after trial

15

a charge under the Compliance Statute. See Docket No. 103 at ¶34 (citing People v. Maysho,

16

2005 Guam 4).

17

Finally, at all times relevant, Defendant PAUL SUBA was the Chief of GPD. See

18

Docket No. 103 at ¶6.

19

(II)

PROCEDURAL HISTORY

20

This case began on December 3, 2009, when Plaintiff filed his original complaint.

21

See Docket No. 1. Plaintiff filed his First Amended Complaint (“FAC”) on December 9,

22

2009. See Docket No. 9. On the basis of several challenges mounted by Defendants, the

23

court dismissed parts of the FAC on August 24, 2010. See Docket No. 78.2

24

Plaintiff filed his Second Amended Complaint (“SAC”) on November 24, 2011. See

25

Docket No. 103. There are nine causes of action: (I) Violation of Civil Rights, per 42 U.S.C.

26

§ 1983, against Defendants Suba, Anciano, and Artui; (II) “Violation of Due Process of
2

The reasoning underlying this dismissal is relevant to the instant Motion, so the court discusses it
further below, in the “DISCUSSION” section.

Page 5 of 16

1

Law,” against all Defendants; (III) “Violation of Free Speech,” against all Defendants; (IV)

2

“Violation of Right to Privacy and Unlawful Seizure,” against all Defendants; (V) False

3

Arrest and False Imprisonment, against Defendants Anciano and Artui; (VI) Assault and

4

Battery, against Defendants Anciano and Artui; (VII) Violation of 10 G.C.A. § 77177 and

5

Negligence, against Defendants Anciano, Artui, Taitano, and Rodriguez; (VIII) Theft of

6

Property and Conversion, against Defendants Anciano, Artui, Taitano, Rodriguez, and Suba;

7

and (IX) “Punitive Damages,” against Defendants Anciano, Artui, Taitano, Rodriguez, and

8

Suba. See Docket No. 103 at ¶¶39-87.

9

Defendant Suba moved to dismiss the SAC on January 7, 2011. See Docket No. 115

10

(“the Motion”). Plaintiff opposed the Motion on February 4, 2011. See Docket No. 140

11

(“the Opposition”). Defendant Suba replied to the Opposition on February 18, 2011. See

12

Docket No. 144 (“the Reply”). Finally, the court heard oral argument on the Motion on

13

September 13, 2011. See Docket No. 161.

14

(III)

JURISDICTION AND VENUE

15

Jurisdiction is proper. Counts One through Four are within the court’s federal

16

question jurisdiction; all others are within the court’s supplemental jurisdiction. See 28

17

U.S.C. §§ 1331, 1367(a). Venue is proper here, in the District of Guam, because all of the

18

events or omissions complained of occurred here. See 28 U.S.C. § 1391(b)(2).

19

(IV)

APPLICABLE STANDARDS

20

A pleading that states a claim for relief must contain, among other things, “a short

21

and plain statement of the claim showing that the pleader is entitled to relief.” FED . R. CIV .

22

P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure enables a defendant to raise

23

by motion the defense that the complaint “fail[s] to state a claim upon which relief can be

24

granted.” FED . R. CIV . P. 12(b)(6).

25

“[A] complaint may survive a [Rule 12(b)(6)] motion to dismiss only if, taking all

26

well-pleaded factual allegations as true, it contains enough facts to ‘state a claim to relief that

27

is plausible on its face.’” Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (quoting

28

Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009)).
Page 6 of 16

1

Underlying that rule are two basic principles. “First, allegations in a complaint or

2

counterclaim must be sufficiently detailed to give fair notice to the opposing party of the

3

nature of the claim so that the party may effectively defend against it.” Starr v. Baca, 633

4

F.3d 1191, 1204 (9th Cir. 2011). “Second, the allegations must be sufficiently plausible that

5

it is not unfair to require the opposing party to be subjected to the expense of discovery.” Id.

6

As for the meaning of the term “plausible,” “[a] claim has facial plausibility when the

7

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

8

defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.

9

This standard

10
11
12
13
14
15

. . . is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of “entitlement to
relief.”

16

Iqbal, 129 S. Ct. at 1949. Application of this standard is “a context-specific task that

17

requires the reviewing court to draw on its judicial experience and common sense.” Id. at

18

1950. And this standard applies to “all civil actions”—“antitrust and discrimination suits

19

alike.” Id. at 1953.

20

(V)

21
22

DISCUSSION
Defendant Suba is named in Counts I, II, III, IV, VIII, and IX of the SAC. He argues

that each count should be dismissed under Rule 12(b)(6).

23

Plaintiff’s federal claims against Defendant Suba proceed on a theory of “supervisory

24

liability” under Section 1983. “Supervisory liability is imposed against a supervisory official

25

in his individual capacity [1] for his own culpable action or inaction in the training,

26

supervision, or control of his subordinates, [2] for his acquiescence in the constitutional

27

deprivations of which the complaint is made, or [3] for conduct that showed a reckless or

28

callous indifference to the rights of others.” Menotti v. City of Seattle, 409 F.3d 1113, 1149

29

(9th Cir. 2005) (numbering added). See also Starr, 633 F.3d at 1197 (same formulation of

30

elements).
Page 7 of 16

1

There is an important qualification. In Ashcroft v. Iqbal, the Supreme Court called

2

supervisory liability “a misnomer,” because “Government officials may not be held liable for

3

the unconstitutional conduct of their subordinates under a theory of respondeat superior.”

4

Iqbal, 129 S. Ct. at 1948-49.3 Since “each Government official . . . is only liable for his or

5

her own misconduct,” the Court went on to hold that, where the constitutional tort at issue

6

requires a specific mind-state (e.g., discriminatory purpose), supervisory liability for that tort

7

is adequately alleged only if the complaint contains facts allowing the court to reasonably

8

infer that the supervisor committed the allegedly tortious acts with that specific mind-state.

9

Id. at 1948-52; see Starr, 633 F.3d at 1196 (where claim requires “deliberate indifference”

10

mind-state, as in Eighth Amendment claim, “[a] showing that a supervisor acted, or failed

11

to act, in a manner that was deliberately indifferent to an inmate’s Eighth Amendment rights

12

is sufficient to demonstrate the involvement—and the liability—of that supervisor.”). See

13

also 1 SHELDON NAHMOD , CIVIL RIGHTS & CIVIL LIBERTIES LITIGATION : THE LAW

14

SECTION 1983 §1:43 (2010) (“Further, Iqbal significantly changed the approach in the

15

circuits to supervisory liability by simply asserting—without much explanation beyond

16

rejecting respondeat superior liability—that individuals sued for their conduct or failures to

17

act where their subordinates violated constitutional rights must themselves personally have

18

the requisite state of mind required for the particular constitutional violations.”)

OF

19

The FAC had some claims against Defendant Suba quite like the ones now before the

20

court in the SAC. Specifically, the FAC named Defendant Suba in Counts I, II, III, IV, and

21

IX, which are essentially identical to the same-numbered ones in the SAC. Compare Docket

22

No. 103 with Docket No. 9. The only difference is that Defendant Suba is named in Count

23

VIII of the SAC, whereas he was not so named in the FAC. See Docket No. 103 at ¶¶82-85.

24

When Defendant Suba moved to dismiss those original FAC counts, the court

25

sustained his challenge and dismissed all counts naming him. See Docket No. 78 at 19:8-12;

26

19:25-20:5. “Qualified immunity shields federal and state officials from money damages
3

Misnomer or not, “supervisory liability” is still a meaningful phrase in current use, so the court
will keep to it. See, e.g., Starr, 633 F.3d at 1193-97 (using the term many times).

Page 8 of 16

1

unless a plaintiff pleads facts showing (1) that the official violated a statutory or

2

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

3

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2080 (2011). The

4

court dismissed all FAC counts naming Defendant Suba because it agreed with the

5

Magistrate Judge that Plaintiff had failed to “allege sufficient non-conclusory facts which

6

could state a plausible claim for [S]ection 1983 supervisory liability.” Docket No. 63 at

7

21:9-10. See generally id. at 17:5-22:25.

8

In deciding this Motion, then, the essential question is whether, in moving from the

9

FAC to the SAC, Plaintiff has added enough factual matter to state supervisory liability and

10

common-law tort claims against Defendant Suba, in a manner that evades any qualified

11

immunity issues.

12

(A)

13

Count I contends that, in taking all the actions described above, Defendant Suba

14

deprived Plaintiff of rights secured to him by the First, Fourth, Fifth, and Fourteenth

15

Amendments to the Constitution, and that he has a remedy against them for these

16

deprivations under Section 1983 of Title 42, United States Code. See Docket No. 103 at

17

¶¶39-45.

Count I

18

The court will dismiss this count WITHOUT LEAVE TO AMEND for the same

19

reasons specified in the relevant part of its order on the Anciano-Artui Motion to Dismiss

20

(see Docket No. 163 at 9)—essentially, because it is redundant in light of Counts II, III, and

21

IV, and there is no change that Plaintiff could make to Count I to make it non-redundant.

22

(B)

23

Count II contends that the Obstruction Statute and the Compliance Statute are void

24

for vagueness. See Docket No. 103 at ¶¶46-49. This count bears three readings. On one

25

reading, it asks the court to declare the statutes unconstitutional under the void-for-vagueness

26

doctrine. On another reading, it asks the court to hold Defendant Suba liable to Plaintiff for

27

damages under Section 1983 because he violated Plaintiff’s due process rights when he

28

permitted him to be seized on such vague statutes. On a third reading, it asks the court to

Count II

Page 9 of 16

1

hold Defendant Suba liable to Plaintiff for damages under Section 1983 because he violated

2

Plaintiff’s due process rights when he permitted Plaintiff’s cell phone to be seized, and

3

ultimately destroyed, without legal reason.

4

The court will dismiss this count WITHOUT LEAVE TO AMEND for the same

5

reasons specified in the relevant part of its order on the Anciano-Artui Motion to Dismiss

6

(see Docket No. 163 at 9-11)—essentially, because (1) Plaintiff cannot show that he has

7

standing to seek declaratory relief, (2) as a matter of law he must challenge his arrest and

8

detention on Fourth Amendment grounds, not generalized due process grounds, and (3) his

9

allegations of random and unauthorized deprivation of property cannot state a Section 1983

10

due process claim.

11

(C)

12

Count III contends that Defendant Suba is liable to Plaintiff under Section 1983

13

because, in taking all the actions described above, he deprived Plaintiff of his right to

14

freedom of speech, as secured by the First Amendment. See Docket No. 103 at ¶¶50-57.

Count III

15

As stated above, where the constitutional tort at issue requires a specific mind-state,

16

supervisory liability for that tort is adequately alleged only if the complaint contains facts

17

allowing the court to reasonably infer that the supervisor committed the allegedly tortious

18

acts with that specific mind-state. See Iqbal, 129 S. Ct. at 1948-52; Starr, 633 F.3d at 1196.

19

In a Section 1983 case alleging deprivation of First Amendment rights, “the

20

defendant’s motive is relevant, and [the] plaintiff’s burden of proof is similar to that set out

21

in cases where an employer’s adverse employment action is alleged to be due to plaintiff’s

22

First Amendment activities.” Sloman v. Tadlock, 21 F.3d 1462, 1469 n.10 (9th Cir. 1994)

23

(citing, inter alia, McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir. 1983)). This is true even

24

when the claim is that “[the defendant] used his official powers . . . to deter [the plaintiff’s]

25

exercise of [First Amendment] rights in the future”—i.e., even when the claim is of prior

26

restraint. Id. at 1469. Cf. Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations

27

Comm’n, 429 U.S. 167, 177 (1976) (conduct “designed to govern speech and conduct in the

28

future” as “the essence of prior restraint”).
Page 10 of 16

1

Thus, in any Section 1983 First Amendment case, a plaintiff must allege not only that

2

“[the defendant] deterred or chilled [the plaintiff’s] political speech,” but also that “such

3

deterrence was a substantial or motivating factor in [the defendant’s] conduct[.].” Id. See

4

also Mendocino Env. Ctr. v. Mendocino County, 14 F.3d 457, 464 (9th Cir. 1994) (“The

5

defendant’s intent is an element of the [First Amendment] claim.”) (emphasis in original).

6

The SAC contains no facts that would allow the court to reasonably infer that

7

Defendant Suba took any actions with the deterrence of free speech as “a substantial or

8

motivating factor.” The SAC does not even allege as much. The court will therefore dismiss

9

this count WITH LEAVE TO AMEND.

10

(D)

11

Count IV contends that Defendant Suba is liable to Plaintiff under Section 1983

12

because, in taking all the actions described above, Defendant Suba deprived Plaintiff of his

13

Fourth-Amendment right to be secure in his person and effects against unreasonable searches

14

and seizures. See Docket No. 103 at ¶¶58-60. This claim has two aspects: (1) the

15

unreasonable seizure of Plaintiff’s person, and (2) the unreasonable seizure of his cell phone.

16

Again, “[s]upervisory liability is imposed against a supervisory official in his

17

individual capacity [1] for his own culpable action or inaction in the training, supervision,

18

or control of his subordinates, [2] for his acquiescence in the constitutional deprivations of

19

which the complaint is made, or [3] for conduct that showed a reckless or callous

20

indifference to the rights of others.” Menotti v, 409 F.3d at 1149.

21
22
23

Count IV

(1)

Culpable action or inaction in training

Plaintiff first suggests that Defendant Suba is liable for culpable action or inaction
in the training of his subordinates. See Docket No. 103 at ¶¶29-38.

24

“[T]he inadequacy of police training may serve as the basis for [Section] 1983

25

liability only where the failure to train amounts to deliberate indifference to the rights of

26

persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S.

27

378, 388 (1989). See also, e.g., Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (to

28

establish supervisory liability on failure-to-train theory, a plaintiff must show that the failure
Page 11 of 16

1

“amounted to deliberate indifference”); McGrath v. Scott, 250 F. Supp. 2d 1218, 1224 (D.

2

Ariz. 2003) (“Therefore, the relevant inquiry in the Ninth Circuit is whether the supervisor

3

appeared ‘deliberately indifferent’ in supervising subordinates, and, if so, whether that

4

deliberate indifference actually caused the deprivation of the plaintiffs federal rights.”). This

5

makes sense, in order to keep supervisory liability from being reduced to respondeat superior

6

liability.

7

“Deliberate indifference requires both knowledge that a harm to a federally protected

8

right is substantially likely, and a failure to act upon that likelihood.” Duvall v. County of

9

Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). An aspect of that knowledge component is that

10

deliberate indifference requires “some form of notice.” City of Canton, 489 U.S. at 395.

11

In connection with this failure-to-train theory, Plaintiff has two factual allegations.

12

First, the General Orders regarding various police activities (e.g., field contact, handling and

13

processing of persons in custody, handling of evidence and property, etc.) had not been

14

updated in fifteen or more years, and there do not seem to be any General Orders concerning

15

supervisory review of arrests, protection of individuals’ constitutional rights, or the use of

16

arrest and seizure as a form of summary discipline. See id. at ¶31. Second, Defendant

17

Anciano had been the arresting officer in People v. Maysho, where the Superior Court of

18

Guam dismissed after trial a charge under the Compliance Statute. See id. at ¶34 (citing

19

People v. Maysho, 2005 Guam 4).

20

These factual allegations do not support supervisory liability on a failure-to-

21

train/failure-to-supervise theory, because they do not allow the court to draw the reasonable

22

inference that Defendant Suba was on notice of, or deliberately indifferent to, anything. See

23

Iqbal, 129 S. Ct. at 1949. The bare fact that the General Orders have not been amended is

24

“merely consistent” with liability, rather than suggestive of anything. Iqbal, 129 S. Ct. at

25

1949. For example, it could very well be that the extant General Orders are legally sufficient

26

but ignored, in which case their non-amendment would not be probative of any relevant fact.

27

At any rate, nothing in the case-law suggests that it is clearly established that a police chief’s

28

failure to amend General Orders is per se constitutionally tortious conduct.
Page 12 of 16

1

Likewise, Maysho does not support supervisory liability on a failure-to-train/failure-

2

to-supervise theory. For our purposes here, all that Maysho says is that the trial court

3

dismissed a charge under the Compliance Statute after trial. See Maysho, 2005 Guam 4, at

4

¶3. That is all. It would be one thing if the Superior Court in Maysho had dismissed the

5

charge under the Compliance Statute, the Office of the Attorney General had appealed that

6

dismissal, and the Supreme Court had affirmed, with some kind of discussion of the frivolity

7

of the charge and some findings suggesting that it was part of a pattern or practice. But

8

Maysho contains nothing like that. It simply says, again, that the charge under the

9

Compliance Statute was dismissed after trial. Maysho therefore cannot have put Defendant

10

Suba on notice of any kind of problem, let alone that “harm to a federally protected right

11

[was] substantially likely,” and so has no relevance here.

12

Thus, Count IV fails to state a claim against Defendant Suba, insofar as it proceeds

13

on a theory that he is liable for culpable action or inaction in the training of his subordinates.

14

(2)

Acquiescence in the constitutional deprivations

15

Plaintiff also suggests that Defendant Suba is liable for his acquiescence in the

16

constitutional deprivations of which the complaint is made. See Docket No. 103 at ¶¶25, 35.

17

Legally, “acquiescence” means “tacit or passive acceptance; implied consent to an

18

act.” BLACK’S LAW DICTIONARY (9th ed. 2009); see also Ornelas-Chavez v. Gonzales, 458

19

F.3d 1052, 1059 n.5 (9th Cir. 2006) (same, using Black’s).

20

“acceptance” and “consent” suggest that a person must have some kind of knowledge of an

21

event before he or she can acquiesce in it. Cf. United States v. Launder, 743 F.2d 686, 689

22

(9th Cir. 1984) (verb “to suffer,” considered as a synonym of “to acquiesce,” “implies

23

knowledge”). Thus, Defendant Suba cannot have “acquiesced” in any constitutional

24

deprivations without knowing of them.

The use of the terms

25

Plaintiff does not allege, and the SAC asserts nothing to suggest, that Defendant Suba

26

knew of the seizure of his person. However, it does state facts going to Defendant Suba’s

27

knowledge of the seizure of Plaintiff’s cell phone.

Page 13 of 16

1

Those facts arise in connection with the Memorandum. The Memorandum was

2

issued by the Office of the Attorney General to GPD the day after Plaintiff’s arrest.4 See

3

Docket No. 103, Exh. E. It is clearly addressed to the “GPD Records Division.” See id. It

4

clearly states that there would be no prosecution of Plaintiff, and that there was no reason to

5

retain Plaintiff’s property. As the head of GPD, Defendant Suba knew, or certainly should

6

have known, of the Memorandum and its contents.

7

A seizure for Fourth Amendment purposes may occur when there is some meaningful

8

interference with an individual’s possessory interest in property. See, e.g., Soldal v. Cook

9

County, Ill., 506 U.S. 56, 63 (1992).

The destruction of property is “meaningful

10

interference” constituting a seizure under the Fourth Amendment. See, e.g., United States

11

v. Jacobsen, 466 U.S. 109, 124-25 (1984).

12

Here, GPD appears to have seized Plaintiff’s cell phone, to have retained it about five

13

months for no discernible reason, and ultimately to have returned it to Plaintiff in “useless,”

14

“destroyed” condition. Docket No. 103 at ¶¶26, 27. Plaintiff asserts that Defendant Suba

15

had knowledge of GPD’s illegal possession of Plaintiff’s cell phone one day after it was

16

seized, and the Memorandum’s date and address lines make this assertion of knowledge

17

plausible. Insofar as Defendant Suba had this knowledge, he acquiesced in at least one of

18

the constitutional deprivations of which the complaint is made—namely, the unreasonable

19

seizure of Plaintiff’s personal property in violation of the Fourth Amendment.

20

Thus, Count IV does state a claim against Defendant Suba, insofar as it proceeds on

21

a supervisory liability theory that he is liable for his acquiescence in the constitutional

22

deprivations of which the complaint is made. See Docket No. 103 at ¶¶25, 35. Count IV

23

therefore states a claim under Section 1983 for deprivation of Plaintiff’s Fourth-Amendment

24

right to be secure in his person and effects against unreasonable searches and seizures.
4

Defendant Suba states that the Memorandum “was not officially communicated” to GPD until
January 27, 2010, nearly two months after Plaintiff brought this lawsuit. See Docket No. 144 at 3-4 n. 4.
This could be true, and may affect the case later. However, the SAC states, and the Memorandum facially
suggests, that GPD was notified of the decision not to prosecute on October 5, 2009. At this point in the
proceedings, the court has to take Plaintiff’s allegations as true. See Hebbe, 627 F.3d at 341-42.

Page 14 of 16

1

Consequently, there is no need to consider the final possible theory of supervisory liability,

2

the showing of reckless or callous indifference, and the Motion is DENIED as to this count.

3

(E)

4

Count VIII contends that Defendant Suba “committed theft of property by failing to

5

return plaintiff’s cell phone camera after being notified that plaintiff would not be

6

prosecuted.” Docket No. 103 at ¶83.

Count VIII

7

At the outset, the court STRIKES the reference to “theft of property” and construes

8

this claim as one for conversion, because Guam does not recognize a cause of action for civil

9

theft. See 9 G.C.A. § 43.15 (there is a “single offense” of theft, which is criminal in nature).

10

The elements of conversion are: “(1) facts showing plaintiff’s ownership or right to

11

possession of property; (2) defendant’s wrongful act toward, or disposition of, the property,

12

interfering with plaintiff’s possession; and (3) damage to plaintiff.” Marianas Hospitality

13

Corp. v. Premier Business Sol’ns, Inc., No. 1:07-cv-00002 , 2009 WL 750247, at *10 (D.

14

Guam Jan. 14, 2009).

15

Here, Plaintiff has properly alleged facts to state a conversion claim. It is easy to see

16

that elements (1) and (3) are properly alleged, as nobody would dispute Plaintiff’s ownership

17

of his cell phone, and Plaintiff has clearly stated that his cell phone was returned to him in

18

“useless,” “destroyed” condition. Docket No. 103 at ¶¶26, 27. As for element (2), if the

19

discussion of Count IV is correct, then Plaintiff has adequately alleged that Defendant Suba

20

violated the Constitution by acquiescing in the unreasonable seizure of Plaintiff’s personal

21

property. Unconstitutionally unreasonable conduct is wrongful conduct. See Redman v.

22

County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (foundation of

23

supervisory liability is “supervisor’s wrongful conduct”) (emphasis added).5 Thus, Plaintiff
5

This would suggest that whenever a plaintiff has (1) a viable Section 1983 claim based on an
unreasonable seizure of property in violation of the Fourth Amendment, that plaintiff will also tend to have
(2) a viable conversion claim against the persons involved. Cases bear this out. See, e.g., Giron v. City of
Alexander, Arkansas, No. 4:07-CV-00568 GTE, 2009 W L 2998946, at *23 (E.D. Ark. Sept. 11, 2009);
Kincaid v. City of Fresno, No. CV-F-06-1445 OW W , 2008 W L 2038390, at *4, 18 (E.D. Cal. May 12,
2008); Dawson v. City of Montgomery, No. 2:06-cv-1057-W KW , 2008 W L 659800, at *9 (M.D. Ala. Mar.
6, 2008); Dockery v. Tucker, No. 97-CV-3584 (ARR), 2006 W L 5893295, at *25 (E.D.N.Y. Sept. 6, 2006).

Page 15 of 16

1

has adequately alleged that Defendant Suba engaged in a “wrongful act toward, or

2

disposition of, the property, [which] interfer[ed] with [P]laintiff’s possession” of the cell

3

phone.

4
5

It follows that Count VIII adequately alleges a conversion claim, so the Motion is
DENIED as to this count.

6

(F)

7

Count IX simply contends that Plaintiff is entitled to punitive damages. See Docket

8

No. 103 at ¶¶86-87. The court will dismiss this count WITHOUT LEAVE TO AMEND

9

for the same reasons specified in the relevant part of its order on the Anciano-Artui Motion

10

to Dismiss (see Docket No. 163 at 16-17)—essentially, because Count IX simply is not a

11

cause of action.

12

(VI)

Count IX

CONCLUSION

13

For the reasons stated above, the court hereby GRANTS the Motion as to Counts I,

14

II, and IX, and DISMISSES those counts WITHOUT LEAVE TO AMEND. The court

15

also hereby GRANTS the Motion as to Count III, but dismisses that count WITH LEAVE

16

TO AMEND. Finally, the court hereby DENIES the Motion as to Counts IV and VIII,

17

except that the reference to “Theft of Property” in Count VIII is hereby STRICKEN.

18

Plaintiff shall file his Third Amended Complaint by October 24, 2011, if at all.

/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Sep 22, 2011

These cases cover a variety of factual backgrounds and procedural settings, so they are not cited as
evidence of any particular rule of law. Rather, they are simply cited as evidence of a correlation between
claims of type (1) and claims of type (2).

Page 16 of 16