ANTHONY W. ISHII, District Judge.
This is an action for damages by plaintiff Victoria P. Youngblood ("Plaintiff") against the City of Bakersfield, Bakersfield Police Officer Christopher Dalton, Bakersfield Police Chief Greg Williamson and DOES 1 to 100, inclusive ("Defendants"). The complaint alleges violations of Plaintiff's constitutional and statutory rights arising from a warranted search of her home at night during which Plaintiff suffered significant injuries to the face, head and neck as a result of being bitten by the police dog being handled by Defendant Dalton. Of the seven claims for relief alleged in Plaintiff's complaint, three claims for relief including claims for violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., violation of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 1231 et seq. and a common law claim for intentional infliction of emotional distress have been abandoned. The remaining claims that are the subject of Defendants' motion for summary judgment are claims for violation of rights granted under the Fourth Amendment in violation of 28 U.S.C. § 1983, violation of California's Bane Act, California Civil Code § 52.1 and claims under California common law for assault and battery and for general negligence. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
The following facts are taken from the parties' joint statement of undisputed facts and from the material facts alleged by either party that are not objected to by the other party.
On Sunday April 8, 2012, Bakersfield police officers were dispatched to the area of Madre Street and Topaz Lane to investigate a suspicious parked vehicle occupied by a White male. Upon the arrival of two responding police officers, the White male occupying the vehicle identified himself to the police officer as Aaron Youngblood ("Aaron"). Aaron stated he had no identification in his possession but offered a receipt for a motel room where he had stayed the previous night. The room receipt identified Aaron's residence as 3704 Delaney Street, Bakersfield. Plaintiff alleges that Aaron informed the officer that he did not live at that address, but that his mother, Plaintiff, did live there and was disabled. Defendants only object to the extent the Plaintiff's proffered fact is immaterial. The responding officer observed various items inside the suspicious vehicle that indicated recent activity involving illicit drugs and/or drug paraphernalia.
Based on information provided by the responding officers, Detective Mathew Hilliard prepared a search warrant application to search the residence at 3704 Delaney Street and to search "Aaron Youngblood's white box truck which was parked in front of the residence." Doc. # 39-2 at ¶6. Hilliard was informed at some time during the preparation of the warrant application that the residence to be searched was occupied by Plaintiff, who is/was disabled. A Kern County Superior Court judge issued the warrant. The warrant authorized officers to search the residence and the truck for illicit drugs or stolen property. Bakersfield police officers commenced executing the search warrant at approximately 9:00 p.m. on April 8, 2012. It is not disputed that it was dark by the time the officers entered the residence. Among the officers conducting the search was officer Dalton and his K-9 partner, Bronx.
Bronx cleared the immediate area of the kitchen and living room. It is not disputed that Bronx was taken off-leash sometime between the time of entry and the time the kitchen and living room were cleared. It is also not disputed that Bronx preceded the officers down the hallway leading to the bedrooms, searching for human presence by sniffing at the doors to the bedrooms. Bronx, finding no human presence in the rooms in the officers' immediate presence, turned a corner in the hallway and went out of sight. It is undisputed that Dalton "heard a female screaming in the furthest north bedroom of the residence and he ran through the hallway and saw Bronx biting [Plaintiff's] head. Plaintiff was transported by ambulance to Kern Medical Center for treatment of dog bite wounds to the head and face.
Each side has proffered a number of disputed or undisputed material facts to which the opposing party has made some objection. These facts concern three disputed areas of evidence. The first area concerns the extent to which officers conducting the search were aware, or should have been aware, that Plaintiff was the primary occupant and that she was debilitated because she suffered from rheumatoid arthritis. The second area of dispute concerns the extent to which Bakersfield Police gave improper weight to information in excess of 20 years old indicating an individual named Thomas Thoms — a person unknown to Plaintiff or her family — had once listed Plaintiff's address as his residence. The third area of disputed evidence concerns evidence relating to the conduct of the officers during the search of Plaintiff's residence. The court will discuss each of these areas of disputed evidence in turn.
Defendants state that "[p]rior to the subject incident, Officer Dalton was not acquainted with [Plaintiff] and did not know she had rheumatoid arthritis. Def's UMF # 31. Defendants also allege that Officer Dalton had no idea that [Plaintiff] was in the residence at the time of the search and had no idea that [Plaintiff] had taken pain and/or sleep medication. Def's UMF # 32. Defendant's proffered facts are not strictly disputed, but Plaintiff offers a number of facts to indicate that facts were known to officers of Bakersfield Police Department who were involved in drafting the warrant application and the preparation of a pre-search plan were aware that (1) Aaron did not reside at 3704 Delaney Street, but lived out of a car, (2) that Plaintiff, Aaron,'s mother, did live at the residence and was disabled, and (3) that officers of the Bakersfield Police knew that Aaron was the son of a Kern County Sheriff's Officer named Donny Youngblood and that Donny Youngblood and Plaintiff were married.
The court concludes there is no actual dispute as to the evidence concerning facts known to Dalton, known to Hilliard and/or other officers charged with the preparation of the warrant application. It is undisputed that Hilliard and Kenneth Farnsworth, the detectives charged with preparing the warrant application, met with Dalton and the other police officers who would conduct the search "to prepare for the execution of the search warrant." Def's UMF # 9. Plaintiff's proffer of disputed material facts, regarding the extent of knowledge possessed by a reasonable officer or an officer following Department policy, may be relevant in the resolution of Plaintiff's claims under the Fourth Amendment or in the context of her claim for general negligence.
Defendants allege:
Plaintiff alleges that the name "Thomas Thoms" became associated with the 3704 Delaney Court address as a result of the investigation of another detective, Scott Miller, into the theft of Miller's property. The name Thomas Thoms "was shown on a CJIS probation page to have provided 3704 Delaney Court as his home address at some time." Plaintiff's DUMF # 4. Plaintiff alleges that "CJIS probation pages are unreliable and require further investigation to determine if the information they contain is accurate and up to date." Plaintiff's DUMF # 5. Defendants only object to Plaintiff's proffer of facts on the grounds of materiality and relevance. Plaintiff alleges that, before a search warrant is executed, police policy requires that an operational plan is developed and reviewed with the officers involved in the search. "The operational plan form requires that officers do a basic records check of all suspects believed to be at the location of the search." Plaintiff's DUMF # 13. Plaintiff alleges that a basic records check "includes a review of the booking record [and] the rap sheet of the individual suspected to be at the address." Plaintiff's DUMF # 14. Defendants only objection with regard to Plaintiff's proffer of facts is that the facts are not supported by admissible evidence.
Plaintiff alleges:
Plaintiff's DUMF # 17. Plaintiff's proffered fact is not disputed by Defendants. It is not disputed that Thoms was arrested the following day at the Beardsley Avenue address in Tehachapi without incident and without use of a canine.
The primary factual dispute regarding the conduct of the officers is the extent to which the officers conducting the search made reasonable attempts to give notice to Plaintiff at the time of their entry and at the time Bronx was let off leash. As an initial matter, there is no dispute that Plaintiff takes prescription drugs for control of pain due to her rheumatoid arthritis, that it was dark and that Plaintiff was asleep at the time police made their entry. There is also no dispute that police had the residence under surveillance from the time Aaron was arrested in the morning until the search warrant was executed about 12 hours later. There is no dispute that nothing of significance transpired at the residence during that time.
Defendants allege:
Defendants' UMF # 13.
Defendants also allege that the announcements made prior to entry "were loud, occurred over a period of several minutes and involved banging on the door so hard that the windows were shaking." Defendants' UMF # 14. Defendants also allege that, after making entry into the home, the officers made further loud announcements and directed Bronx to "bark" approximately ten times. Defendants UMF # 18.
Plaintiff disputes many of the particulars of Defendants' description of the effort the officers made prior to the search. Basically, Plaintiff alleges officers made two announcements prior to entering her home and alleges that Bronx did not bark prior to being let off leash. Defendants object to the declarations of witnessing neighbors to the extent those declarations purport to describe what did, or did not, transpire inside Plaintiff's residence where the witnesses were not present.
The court notes that the dispute over the extent to which the officers attempted to forewarn Plaintiff of their presence and to warn that Bronx was going to be let off leash is somewhat peripheral to the issue of Defendants' liability under the Fourth Amendment and perhaps only somewhat more relevant to the issue of liability under a theory of negligence. For purposes of the discussion that follows, the court finds it sufficient to note that the officers made attempts to warn and that Plaintiff did not hear them because she was asleep. The court also accepts that Plaintiff may have been more difficult to arouse because of the effects of prescription medications use by Plaintiff to treat her rheumatoid arthritis.
Finally, although the point is not addressed by either party's proffered evidentiary facts, Plaintiff alleges in her opposition that there are two varieties of police dog with respect to the dog's interaction with persons following a command by a handler to "find." One type is trained to "find and bark" at a suspect that is located by means of the dog's sense of sight or smell. The other type is trained to "find and bite." Defendants do not dispute Plaintiff's allegation. Plaintiff's opposition states that Bakersfield Police Department "claims that the dogs [it employs] are of the find and bark variety." Doc. # 50 at 7:10. The court notes however, that Defendants contend that Plaintiff was warned by Dalton that anyone not coming out in response to warnings "could be bit." Defendants' UMF # 18. There is no allegation by either party that Bronx acted in a way that was not expected or intended.
The complaint in this action was filed on July 12, 2012. No motion to dismiss was filed. The instant motion for summary judgment was filed on November 25, 2013. Opposition to Defendant's motion was filed on December 24, 2013, and Plaintiff's reply was filed on December 30, 2013. The matter was taken under submission by order of the court on January 2, 2014. The court also notes that the parties have stipulated to vacating the trial date and the pretrial conference date and no subsequent trial date has been requested as of this writing.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c);
Plaintiff's first claim for relief for unlawful search and unlawful use of force during the search is alleged against Defendants Dalton, City of Bakersfield and Williams, as well as the Doe Defendants. Plaintiff's contention that excessive use of force was involved is central to her claim of Fourth Amendment violation. The court will discuss first whether any issue of material fact exists as to Plaintiff's claim for constitutional violation. Defendants have alleged a number of affirmative defenses with respect to various Defendants. Upon finding that an issue of material fact with respect to constitutional violation remains, the court will proceed to discuss each of Defendants affirmative defenses.
As a threshold matter, Defendants contend that Plaintiff was not "seized" for Fourth Amendment purposes because Plaintiff was not the object of the search nor the individual that police intended to seize by releasing Bronx. A Fourth Amendment seizure occurs "where there is a governmental termination of freedom of movement through means intentionally applied."
Further, the decision in Rogers accords with an appellate decision in another circuit holding that an innocent person injured by a police dog intentionally deployed in a residence where an innocent third person was located.
The next issue is whether police applied an unreasonable level of force in seizing Plaintiff.
As an initial matter, the court notes it is commonly recognized that the reasonableness of the use of force is usually a question for a finder of fact, rather than a question of law.
The court concludes that Defendants are not entitled to summary judgment on the issue of whether Plaintiff was subject to an unreasonable search in violation of the Fourth Amendment based on both the unreasonable use of force and the lack of any justification for the conduct of the search at night.
With regard to Plaintiff's claim against Dalton under the Fourth Amendment, Defendants contend (1) Dalton is not liable because no evidence exists to indicate he violated Plaintiff's Fourth Amendment rights; (2) the level of force used was reasonable, and (3) Dalton is entitled to qualified immunity. Defendants also contend that Police Chief Williamson is entitled to summary judgment as to Plaintiff's Fourth Amendment Claims under
Defendants' argument regarding the non-existence of evidence linking Dalton to any infringement of Plaintiff's Fourth Amendment Rights confuses the issue of a right to search and the officer's conduct during the search. Defendant emphasizes that Dalton was only called upon to aide in the search and that he had nothing to do with the warrant application or investigation that preceded the search. These contentions are correct as is Defendant's contention that Dalton had a right to rely on the validity of the search warrant.
Defendant's contention that Dalton cannot be liable because Plaintiff was not subject to a "seizure" for purposes of the Fourth Amendment is unsupported for the reasons discussed above. Defendants' final contention is that Dalton is entitled to qualified immunity.
To determine whether qualified immunity applies, the threshold question is whether, in the light most favorable to the party asserting injury, the facts show an officer's conduct violated a constitutional right.
As discussed, Plaintiff has raised an issue of material fact as to Plaintiff's right under the Fourth Amendment to be free from unreasonable seizure. The first prong of qualified immunity is therefore answered in the affirmative and the court proceeds to determine if the right alleged to be violated was well established at the time of the alleged violation. Defendants point to the relative sparsity of case authority on police dog bites to support their contention that the right at issue is not well established and that, in any event, Dalton satisfied any established requirements by announcing several times that he was going to turn Bronx loose and that Bronx would bite anyone he encountered. Plaintiff alleges there was no warning. Defendants' and Plaintiff's arguments miss the point. The issue is the reasonableness of the application of force, not the modality of force applied. The right of an individual to be free of excessive force is well established. The standard for the assessment of a claim of excessive use of force is the same as the standard for the determination of qualified immunity — the reasonableness of the officer's actions. Since the court has determined that the reasonableness of Daltons action in deploying Bronx off-leash is a matter for jury determination, Dalton is not entitled to qualified immunity on the issue of Fourth Amendment violation.
The court assumes for purposes of this discussion that Wilson is being sued in his individual capacity. Were that not the case Plaintiff's suit against Wilson would be duplicative of the suit against the City of Bakersfield.
Liability under 28 U.S.C. section 1983 cannot be predicated on the theory of respondeat superior, that is, that a supervisor is liable for the wrongful acts of his subordinates.
As an initial matter, the court notes that Plaintiff's opposition to Defendants' motion for summary judgment does not address section 1983 claims against either Wilson or the City of Bakersfield. A review of the facts alleged in the complaint reveals only conclusory allegations concerning policies, customs and procedures that caused the violation and/or ratification by supervisors and officials of the conduct at issue. In her opposition to Defendants' motion for summary judgment, Plaintiff alleges no facts at all relating to Wilson or concerning the existence of policies or customs or instances of ratification by Wilson. The court concludes Wilson is entitled to summary judgment in his favor with regard to Plaintiff's claim of violation of rights under the Fourth Amendment in violation of section 1983.
"Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort."
Plaintiff's Fourth Amendment Claim against City of Bakersfield fails for the same reason as the claim against Wilson. Plaintiff has failed to allege the existence of any policies or customs (beyond those alleged in conclusory language in the complaint) that could fairly be said to cause the constitutional harm Plaintiff suffered. As was the case with the Fourth Amendment claim against Wilson, Plaintiff appears to have abandoned the claim against City of Bakersfield by not alleging any facts at all concerning the existence of policies or customs in her opposition to Defendants' motion. The court therefore finds City of Bakersfield is entitled to summary judgment in its favor with regard to Plaintiff's claim for violation of Plaintiff's Fourth Amendment rights.
The primary contention asserted by Defendants as to all of Plaintiff's state law claims is that Defendants are immune from liability under state law pursuant to California Government Code sections 821.6 and 815.2. The court will address this contention before proceeding to consideration of Defendants' arguments regarding the individual state law claims.
The general rule is that "a public employee is liable for injuries resulting from his or her conduct to the extent that a private individual is liable.
Defendants have attempted to untether the immunity for public employees from the context of malicious prosecution by quoting the above paragraph as it was quoted in
The holding in
The court finds that the California Supreme Court's holding in
California Government Code section 815.2 subsection (a) provides that a governmental entity is derivatively liable for "injury proximately cause by an act of omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, given rise to a cause of action against that employee or his personal representatives."
Having found that Dalton or any other individual Defendant is not entitled to immunity pursuant to Government Code section 821.6, it follows that the entity defendant, City of Bakersfield is not entitled to derivative immunity pursuant to section 815.2(b).
California Civil Code section 52.1 (the "Bane Act") provides a cause of action in equity and statutory civil penalty for interference "by threats, intimidation, or coercion" or attempted interference, "with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state." Cal. Civ. Code § 52.1(a). The action may be brought by the Attorney General or any District Attorney, section 52.1(a), or by the individual suffering the intimidation or coercion. § 52.1(b). "Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right."
Defendants contend that Plaintiff cannot state a claim under the Bane Act because there was no state or federal right that was interfered with separate from the Fourth Amendment excessive force violation. In decisions prior to 2012, this court and other district courts have held in order to state a claim under the Bane Act, "the coercive force applied against a plaintiff must result in an interference with a separate constitutional or statutory right."
Although federal courts have not uniformly agreed on the significance of the holding in
Although the case is close, the court finds that Plaintiff has proffered facts that, if proven at trial, would show that she was seized within the meaning of the Fourth Amendment, that there was no justification for the seizure and that excessive force was applied. This would bring the factual context of this case into alignment with that of Bender. The court will therefore decline at this time to grant summary judgment as to Plaintiff's claim pursuant to the Bane Act.
To be liable for the tort of battery, a defendant must have the intention to harm or offend.
California Government Code section 820.4 provides that "[a] public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law." Defendants contend that Plaintiff cannot state a claim for negligence against Dalton because Dalton "reasonably believed that Thomas Thoms would be inside the residence" based on CJIS and probation records. Doc. # 39-1 at 37:9-10. Thus, Defendants contend, Dalton had reason to deploy Bronx and cannot be considered to have failed to exercise due care. Defendants argument fails principally because it is not only the fact of the Bronx's deployment that is at issue; it is also the manner in which the K-9 unit was deployed. As noted above, whether Dalton should have allowed Bronx to proceed out of sight and off-leash under the totality of the circumstances of the search is a highly contested issue. The decision whether Dalton managed Bronx's deployment with due care is a matter for jury decision.
THEREFORE, in accord with the foregoing decision, it is hereby ORDERED that:
1. Defendants' motion for summary adjudication with regard to the liability of Chief Wilson and City of Bakersfield to Plaintiff's first claim for relief for violation of rights under the Fourth Amendment is hereby GRANTED. Plaintiff's first claim for relief is hereby DISMISSED with prejudice as to Defendants Wilson and City of Bakersfield.
2. Summary adjudication is hereby GRANTED with regard to Plaintiff's abandoned claims including Plaintiff's second, third and sixth claims for relief; Plaintiff's claims for violation of the Rehabilitation Act, the Americans with Disabilities Act and Plaintiff's state law claim for intentional infliction of emotional distress.
3. In all other respects Defendants' motion for summary judgment or summary adjudication is hereby DENIED.
IT IS SO ORDERED.
