JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiffs Ali Saleem Bey ("Saleem Bey") and John Muhammed Bey ("John Bey") (together, "Plaintiffs") bring this action against the City of Oakland ("Defendant") for alleged civil rights violations by the Oakland Police Department ("OPD"). (Dkt. No. 60.)
Plaintiffs are "businessmen, family men and community leaders in the Oakland Black and Muslim community." (Dkt. No. 185-2 at ¶ 3.) Plaintiffs formerly had leadership roles in Your Black Muslim Bakery (the "Bakery"), a now defunct Black Muslim-owned business and organization located in Oakland.
In or around early March 2004, Waajid Bey's wife filed a missing person's report with OPD after Mr. Bey had been missing for several days. (Dkt. Nos. 185-1 at ¶¶ 4-6.) At the time of his disappearance, Waajid Bey was acting CEO of the Bakery and an associate of Plaintiffs. (Id. at ¶ 5.) OPD officers Andre Rachal and Todd Crutchfield and an FBI agent interviewed John Bey regarding Waajid Bey's disappearance. (Id. at ¶ 6.) John Bey met with OPD, FBI agents, and ATF agents on "several occasions" in connection with the ensuing investigation. (Id. at ¶ 7.)
In August 2004, Waajid Bey's body was discovered in the hills of East Oakland. (Id. at ¶ 8.) OPD assigned Sgt. Bruce Bock
On the morning of June 17, 2005, John Bey was ambushed by "three to four" gunmen and shot outside of his home in the Montclair community of Oakland. (Dkt. Nos. 185-1 at ¶¶ 10-11.) OPD opened an attempted murder investigation into the incident. (Dkt. No. 178-2, Ex. C at 47.) John Bey did not know that OPD closed the case until 2011, after he filed a request for records under the Freedom of Information Act ("FOIA"). (Dkt. No. 185-1 at ¶ 14.)
In July 2007, Plaintiffs met with then-Oakland Mayor Ronald Dellums's office to express their dissatisfaction with the investigations into Waajid Bey's murder and John Bey's attempted murder. (Dkt. No. 178, Ex. A at 5 (137:18-138:6).) The Mayor's chief of staff recommended that Plaintiffs file complaints with the District Attorney's office and the Citizens' Police Review Board ("CPRB"). (Id.) Plaintiffs did so on July 12, 2007 and July 13, 2007, respectively. (See Dkt. No. 178, Ex. A at 15-18.) The District Attorney did not respond to Plaintiffs' letter. (Id. at 5 (138:24-25.)
Plaintiffs' CPRB complaint names Sgt. Brock and Officer Crutchfield as subject officers, and states, in pertinent part:
(Id. at 17.) Saleem Bey spoke with Karen Tom from the CPRB and gave "two hours . . . of recorded interview" in conjunction with Plaintiffs' CPRB complaint. (Id. at 6 (142:7-19).) CPRB then issued a "Notice to Complainant" letter to Saleem Bey stating that Plaintiffs' complaint could not "be accepted for investigation because the complaint does not allege misconduct by any specific Oakland officer." (Id. at 18.) The letter further states that although the complaint names two OPD officers as "involved personnel" the complaint itself contains no allegations of misconduct by those officers, and "[Saleem Bey] indicated to Complaint Investigator Audrey Schonborn that [he] did not have a complaint against a specific Oakland police officer but instead [his] main concern was the general investigation process being slow and not progressing after several years." (Dkt. No. 178, Ex. A at 18.) The letter explains:
(Id.) The letter directed Plaintiffs to contact "Complaint Investigator Audrey Schonborn" if they had any questions or wished to amend their complaint. (Id.)
CPRB and IAD conduct "parallel and separate investigations" regarding CPRB complaints, (see Dkt. No. 178-3, Ex. D at 6:12-14); Plaintiffs' complaint was thus forwarded to IAD on July 26, 2007 and became IAD case number 07-0538, (Dkt. No. 186-11, Ex. 11 at 2 (noting that the "complaint came in via CPRB notification")). Officer C. Bolton handled the initial intake of the complaint and spoke with Saleem Bey on August 6, 2007. (Id.) Officer Bolton's report of that contact states, in pertinent part:
(Dkt. No. 186-11, Ex. 11 at 2.) Officer Bolton recommended "Admin Closure" of the complaint, finding "no benefit in forwarding th[e] unresolved service complaint for COP or BOI review." (Id.) Officer Bolton forwarded the complaint to Sgt. P. Freeman for review; four days later Sgt. Freeman indicated that he had reviewed the case and recommended Admin Closure. (Id.) Sgt. Freeman then forwarded the complaint to Lt. David Downing, who agreed with Sgt. Freeman's recommendation and concurred that "this is a service complaint." (Id.) Lt. Downing further noted that "[t]he Complainant makes no specific allegation toward a single officer, but a broad brushstroke allegation against the entire department for not solving a homicide case to his satisfaction." (Dkt. No. 186-11, Ex. 11 at 2.) Lt. Downing recommended Admin Closure and forwarded the complaint to Capt. B. Fairow for review. (Id.) Capt. Fairow reviewed the complaint but did not approve Admin Closure; instead, Capt. Fairow sent the complaint back to Lt. Downing, noting: "Prior to making this a service complaint, or otherwise Admin Closing, it will need to be established that the CPRB has no differing allegations and that they will also be Admin Closing." (Id.) Lt. Downing then sent the complaint back to Sgt. Freeman "to coordinate with CPRB to determine their anticipated finding." (Id. at 3.)
On August 20, 2007, Sgt. Freeman reported: "Case reviewed with Capt. Fairow. The CPRB in their Notice of Complaint Not Accepted for Investigation stated that they cannot accept this case for investigation, because the complaint does not allege misconduct by any specific Oakland Police Officer." (Id.) Capt. Fairow approved the Admin Closure, and on September 1, 2007, IAD mailed a "closeout letter" to Saleem Bey, stating, in pertinent part:
(Dkt. No. 188-12, Ex. 12 at 2.) IAD closed the case on September 4, 2007. (Dkt. No. 186-11, Ex. 11 at 3.)
Plaintiffs filed another CPRB complaint in September 2011. (Dkt. Nos. 178, Ex. A at 6-7 (144:20-145:10) & 186-11, Ex. 11 at 3.) CPRB again forwarded the complaint to IAD. (Dkt. No. 178-4, Ex. E at 10 (120:7-25).) IAD assigned the complaint the same case number as the July 2007 complaint—07-0538.
On September 30, 2011, Officer Robyn Clark emailed then-Sgt. Robert Supriano regarding the new IAD complaint, stating, in pertinent part:
(Dkt. No. 178-4, Ex. E at 22.) Officer Clark also noted that the complaint "references all the [Sgt.] Longmire [illegible] related to the Bey Investigations."
(Id.)
On October 4, 2011, Officer Robert Messier drafted an IAD "Chronicle Log" entry for case 07-538 stating:
(Dkt. No. 186-11, Ex. 11 at 3.) IAD thus closed the complaint.
The CPRB administratively closed the complaint in October 2012. (Dkt. No. 178, Ex. A at 19.) In a letter to Plaintiffs dated October 9, 2012, CPRB Policy Analyst and Manager Patrick Caceres, writes:
(Id.) The CPRB sent the letter to the United States Department of Justice ("DOJ") on November 7, 2012. The letter refers and recommends an investigation into the complaints made by Plaintiffs to the DOJ's "Civil Rights Division, Initiative to Combat Post 9/11 Discrimination Backlash," and states, in pertinent part:
(Id. at 20.) The DOJ responded to the CPRB's letter on April 17, 2013, (id. at 21), but did not launch an investigation, (id. at 7-8 (148:14-151:2)).
In 2013, Plaintiffs contacted the office of Thomas Frazier, who had been appointed as Independent Monitor and Compliance Director to oversee OPD pursuant to a 2003 Negotiated Settlement Agreement (the "Allen Agreement") in another federal action in this district, Allen v. City of Oakland, No. 00-cv-04599-WHO.
(Dkt. No. 178, Ex. A at 22.) IAD Intake Officer Nguyen contacted Plaintiffs by phone and letter the next day indicating that IAD was opening a new case based on Plaintiffs' complaint. (Id. at 9-10 (155:1-8, 159:9-21); Dkt. No. 178-1, Ex. B at 21 (265:18-24).) IAD designated the complaint as case number 13-1062. (Dkt. No. 178, Ex. A at 10 (160:12-14, 21-25).) Plaintiffs were disappointed that the Compliance Director's office "rerouted or returned" their complaint to IAD, (id. at 9 (155:9-11)), and sent a letter to Mr. Frazier "formally disagree[ing]" with that decision because Plaintiffs' new complaint concerned IAD's failure to properly investigate 07-0538, (id. at 26). The Compliance Director's office did not respond to Plaintiffs' letter. (Id. at 10 (159:22-160:2).)
Plaintiffs met with Officer Nguyen "[p]ossibly twice" in person and once on the phone to discuss 13-1062 and "get the facts around the complaint." (Dkt. No. 178-1, Ex. B at 21 (263:3-264:11).) Officer Nguyen explained to Plaintiffs that he was an IAD Intake Officer and would not be investigating the complaint but would collect the facts from Plaintiffs before passing the case to the IAD investigator. (Id.) Plaintiffs' meetings with Officer Nguyen totaled two to three hours. (Id.)
In August 2013, Plaintiffs contacted the Compliance Director's office to complain "that nothing had been done since the intake." (Id. at 265:6-10.) IAD Capt. Oliver Cunningham then contacted Plaintiffs by phone to discuss 13-1062, and Plaintiffs met with him in September 2013. (Id. at 266:4-23.) Capt. Cunningham told Plaintiffs that the 13-1062 would focus on the 2004 Waajid Bey murder investigation, 2005 John Bey attempted murder investigation, and previous IAD investigation 07-0538. (Id. at 23 (272:10-21); see also id. at 28-29 (September 16, 2013 email from John Bey to Compliance Director and Saleem Bey relaying understood scope of investigation "[a]ccording to Capt. Cunningham").) Thereafter, Plaintiffs met with Capt. Cunningham once more and had "a couple of hallway meetings" to discuss 13-1062. (Dkt. No. 178-1, Ex. B at 22 (267:3-15).) Saleem Bey described Capt. Cunningham's demeanor as "dismissive" during their encounters. (Id. at 23 (273:7-12).)
The case was assigned to IAD Sgt. William Griffin in August or September 2013 with directions to focus the IAD investigation on OPD's investigations into the 2004 murder of Waajid Bey and 2005 attempted murder of John Bey, and OPD's closing of Plaintiffs' previous IAD complaint, 07-0538. (Dkt. No. 178-2, Ex. C at 11-12 (52:17-53:6), 23-24 (77:24-78:1).) Plaintiffs "met with [Sgt. Griffin] a couple of times" during the investigation. (Dkt. No. 178-1, Ex. B at 24 (276:16-17).) Sgt. Griffin recalls speaking to John Bey "multiple times," as well. (Dkt. No. 178-2, Ex. C at 37 (189:3-7).) Saleem Bey testified that Sgt. Griffin "kind of fell off and disappeared" after his initial meetings with Plaintiffs. (Dkt. No. 178-1, Ex. B at 24 (276:16-18).)
In conducting his investigation, Sgt. Griffin "reviewed the case evidence that was available and "case notes regarding actions taken [by OPD]" regarding the 2004 Waajid Bey murder investigation and the 2005 attempted murder of John Bey. (Dkt. No. 178-2, Ex. C at 14 (56:21-23).) Sgt. Griffin also reviewed documents related to IAD case 07-0538, IAD case 07-0553, correspondence from the CPRB, and statements and evidence submitted by Plaintiffs. (See Dkt. No. 181, Ex. C-1 at 27, 29 (Report of Internal Investigation File No. 13-1062) (noting that "the complaints and evidence gathered totaled several thousand pages of information").) Sgt. Griffin drafted a report of his findings and presented them to then-Chief Sean Whent. (Dkt. No. 178-2, Ex. C at 18 (62:8-12).)
According to Sgt. Griffin:
(Id. at 17 (61:13-24).) Sgt. Griffin testified that he could not sustain findings against individual officers because he did not have evidence of individual wrongdoing regarding the underlying investigations. (Id. at 18-21 (62:14-65:2) (noting that OPD did not have a "set policy" of required investigative procedures at the time of the investigations against which Sgt. Griffin could compare the actions of the subject officers).) Sgt. Griffin was also unable to speak directly with the OPD officers responsible for the 2004 Waajid Bey murder investigation (Sgt. Brock) and the 2005 attempted murder of John Bey (Sgt. Ray Sethna) because those officers were no longer employed by OPD
Sgt. Griffin's findings are documented in his Report of Internal Investigation for 13-1062 (the "Report"). The Report details Plaintiffs' statements and allegations of wrongdoing by OPD and deems Plaintiffs credible. (Dkt. No. 181, Ex. C-1 at 26-30.) The Report affirms IAD's previous characterization of case 07-0538 as a "service complaint" and finds that the facts of the complaint supported its administrative closure; specifically, the complaint did not allege facts that "if substantiated[ ] would constitute a [Manual of Rules] violation" by an individual officer but instead, "stated a concern that there was no progress with the [underlying] investigations." (Id. at 28.)
The Report further finds, however, that OPD failed to properly investigate both Waajid Bey's murder and John Bey's attempted murder; specifically, "[OPD] did not have proper policies and procedures in place to ensure that these investigations were completed thoroughly and that proper documentation was retained to ensure follow up investigations could be completed." (Id. at 30.) As for the investigation into Waajid Bey's murder, the Report recommends a finding of "Sustained" and details Sgt. Griffin's unsuccessful attempts to locate the missing case file. (Id. at 31-32.) The Report further notes that OPD's Property and Evidence Unit documented "11 separate evidence sheets" for the case. (Id. at 32.) The Report states that although "the quantity of evidence collected is indicative of a detailed investigation, it does not provide insight into the quality of the investigation without investigative notes." (Id.) The Report asserts that "CID has initiated efforts to locate the investigative file for [the Waajid Bey murder investigation]," and "[o]nce the file has been located, a review and thorough follow up of the case will be conducted." (Id.)
As for the investigation into John Bey's attempted murder, the Report likewise recommends a finding of "Sustained" and details the following "steps that should have been taken prior to closing the case": (1) a "[p]hoto lineup of four `young male blacks' arrested in weeks following the shooting" who possessed shotguns at the time of arrest; (2) "[f]ollow up results from [the Integrated Ballistic Identification System] regarding expended shell casings collected at the scene; and (3) "[p]hoto lineup containing Antar Bey." (Dkt. No. 181, Ex. C-1 at 31.) The Report further states:
(Id.)
As to liability for individual officers, the Report notes that "[t]he assigned investigators to the Waajid [Bey] and John Bey incidents would normally be the subject officers of the allegations that each conducted inadequate follow up investigations," and "that under normal circumstances, policy would guide us not to investigate these subject officers and admin close the case because they are no longer employed by the City." (Id. at 28.) The Report continues:
(Id.) The Report concludes with a recommended finding of "Sustained" as to OPD for violation of Manual of Rules 314.39-2 ("Performance of Duty"). (Id. at 32.) The Report is signed by Sgt. Griffin, and signed as "Approved by" IAD Lt. Eric Lewis, Capt. Cunningham, and Chief Whent. (Id. at 33.)
In March 2014, Capt. Cunningham and Lt. Outlaw met with Plaintiffs to give them the IAD closeout letter regarding 13-1062. (Dkt. No. 178-1, Ex. B at 24 (276:19-24).) The letter states, in pertinent part:
(Dkt. No. 60, Ex. 1 at 62.) The meeting lasted "[f]orty-plus minutes," but "less than hour." (Dkt. No. 178-1, Ex. B at 24 (276:25-277:3).) Plaintiffs told Capt. Cunningham and Lt. Outlaw that Plaintiffs were not satisfied with the closeout letter. (Id. at 277:4-9.) According to Saleem Bey, Plaintiffs were treated dismissively at the meeting, and "basically told, here is the letter that you're going to take." (Id. at 277:23-25.) Following the meeting Plaintiffs sent emails to Lt. Outlaw expressing their dissatisfaction with the closeout letter; Lt. Outlaw answered Plaintiffs' emails and acknowledged their displeasure. (Id. at 277:12-15.)
Plaintiffs then contacted Compliance Director Robert Warshaw,
By letter dated April 12, 2019, the Oakland Police Commission notified Compliance Director Warshaw that:
(Dkt. No. 188-27, Ex. 27 at 2.).) According to John Bey, in June 2019 the Oakland Police Commission voted to approve funding to perform an independent investigation into 07-0538 and 13-1062. (Dkt. No. 185-1 at ¶ 32.)
On November 6, 2013, Saleem Bey filed a complaint with the CPRB naming Capt. Cunningham and Chief Sean Whent as subject officers. (Dkt. No. 186-18, Ex. 20 at 2.) Plaintiffs named Capt. Cunningham "because of his failure to investigate 13-1062 up to that point," and named Chief Whent "because he was involved in [the independent IAD investigation involving Sgt. Longmire, 07-0553] but failed to include 07-0538 in [that] investigation." (Dkt. No. 185-1 at ¶ 23.) The CPRB complaint lists the following grievances: (1) "failure to investigate IAD 13-1062"; (2) "conflict of interest: an appointee of Interim Chief Whent who is named in the complaint is in charge of the investigation"; (3) "failure by IAD to accept material evidence related to complaint"; (4) "chain of command racism [and] discrimination against black Muslims resulting in failure to report known [Manual of Rules] violations"; and (5) "conflict of interest: IAD 13-1062 is an investigation of IAD 07-0538 resulting in IAD investigating IAD." (Id.) Plaintiffs' CPRB complaint requested an independent investigation into those grievances. (Id.) The CPRB "opened a parallel investigation" regarding 13-1062 and assigned Joan M. Saupe as investigator. (Dkt. Nos. 178, Ex. A at 10 (160:12-17) & 181, Ex. A-1 at 4.)
The CPRB issued an Administrative Closure Report on July 10, 2014. (Dkt. No. 181, Ex. A-1 at 4.) The CPRB report details Ms. Saupe's April 2014 interview with Plaintiffs in connection with their CPRB complaint, including Plaintiffs' specific allegations of wrongdoing by OPD and Plaintiffs' responses to Ms. Saupe's questions. (See id. at 4-15.) The report further notes the evidence Ms. Saupe reviewed in connection with Plaintiffs' complaint, and the applicable law and OPD Manual of Rules provisions. (See id. at 16-18.) The CPRB report sustained no findings as to any of Plaintiffs' grievances and submitted the case for administrative closure. (See Dkt. No. 181, Ex. A-1 at 18-23.) Plaintiffs were aware of the report and its findings. (Dkt. No. 178, Ex. A at 13 (171:2-9).)
In October 2011, a group calling itself Occupy Oakland "set up an encampment in front of Oakland City Hall." (Dkt. No. 175, Ex. D at 29.) Occupy Oakland was part of "an international protest movement directed toward social and economic inquality." (Id.) City of Oakland officials (the "City") became concerned over the next two weeks with the "health, safety[,] and welfare" of city employees, Occupy Oakland protestors, and those in the surrounding community due to "devolving conditions" within the encampment. (Id. at 29-30.) The City thus directed OPD "to develop an eviction plan." (Id. at 30.) OPD executed that eviction plan on October 25, 2011. (Id.) Subsequent clashes between OPD and Occupy Oakland protestors "result[ed] in controversial uses of force." (Id.)
On December 19, 2011, the City contracted Frazier Group, LLC to provide "an impartial review of the events of October 25th," based on serious concerns with OPD's "use of unreasonable force, overall police performance, . . . ability to manage future events in an acceptable manner[,]" and OPD's ability "to effectively and impartially investigate the widely reported allegations of police use of force and other misconduct." (Id. at 31.) The City tasked the Frazier Group with focusing on OPD's response to the events of October 25, 2011; the Frazier Group's review thus did not "investigate any individual event or complaint" and instead concentrated on "identifying areas of policy, procedure, and tactics within OPD that needed immediate revision or updating." (Id.)
According to former IAD Investigations Commander John Lois, the events of October 25, 2011 "and subsequent Occupy Oakland protests resulted in an unprecedented number of Internal Affairs complaints against OPD almost immediately thereafter and in the months that followed." (Dkt. No. 174-1 at ¶ 3.) "OPD ultimately received over 1,000 complaints of misconduct related to Occupy Oakland" and "did not have sufficient investigators to handle the volume."
In response, the City and then-Chief of Police Howard A. Jordan drafted a memorandum for Compliance Director Warshaw detailing the City's plan to address the outstanding Occupy Oakland IAD complaints, including the need for outside consultants. The memorandum states, in pertinent part:
(Dkt. No. 175, Ex. C at 15.) The City noted that its "current staffing in [IAD] is unable accommodate the significant increase in complaints caused by the 2011 Occupy Oakland events given their existing caseload, hundreds of hours of video to be reviewed, and serious and complicated nature of the force allegations which occurred during major urban protests." (Id. at 16.) The City further noted "a possible conflict of interest because many of the IAD investigators had been deployed to Occupy demonstrations and could have been subjects or witnesses to the complaints being received." (Dkt. No. 175, Ex. C at 16.) The City thus "decided [that] it would be more productive to have an independent investigator look into the remaining 2011 Occupy Oakland allegations of misconduct." (Id.)
The City issued its Occupy Investigation Plan on June 8, 2012. (Dkt. No. 175, Ex. B at 9.) The plan details the assignment of IAD complaints to five outside investigators and one attorney in the City Administrator's Office. (Id. at 10-11.) OPD also "assigned five additional investigators to Internal Affairs" to support the "two regular Internal Affairs investigators" assigned to the Occupy Oakland investigations. (Id. at 11.) According to IAD Commander Lois, "the reason IAD sought outside investigators was due to the sheer volume of complaints." (Dkt. No. 174-1 at ¶ 5.)
Plaintiffs filed their original complaint on April 9, 2014. (Dkt. No. 1.) After reviewing the first three iterations of the pleadings pursuant to 28 U.S.C. § 1915, (see Dkt. Nos. 11, 14, 16), the Court concluded that the allegations in the Second Amended Complaint ("SAC") were sufficient to survive Section 1915 review, (Dkt. No. 16). Defendant then filed a motion for judgment on the pleadings, which the Court granted. See Bey v. City of Oakland, No. 14-cv-01626-JSC, 2015 WL 8752762, at *15 (N.D. Cal. Dec. 15, 2015). The Court's Order dismissed as time-barred Plaintiffs' claims related to OPD's investigation into the 2004 murder of Waajid Bey and 2005 attempted murder of John Bey, and the 2007 IAD complaint regarding those investigations. Id. at *5-6. The Court further concluded that Plaintiffs failed to state a claim to the extent their claims were premised on OPD's investigation regarding the 2013 Internal Affairs Complaint. Id. at *10-15.
Plaintiffs then filed the TAC, bringing nine claims, including a newly-alleged claim under 42 U.S.C. § 1986, and ten newly-alleged defendants—all individual officers with OPD. (Dkt. No. 60.) Because the Court never authorized Plaintiffs to add a new claim or new parties, Plaintiffs did not seek leave to amend, and there was no basis for Plaintiffs to substitute the individual officers for the previous Doe defendants, the Court sua sponte dismissed the Section 1986 claim and claims against the newly-named individual defendants without leave to amend. (Dkt. No. 63.) Defendant then moved to dismiss the TAC, (see Dkt. No. 65); the Court granted that motion in part on April 26, 2016, (Dkt. No. 72 at 28).
Following the Court's April 2016 Order, six claims remain against the City of Oakland: (1) Counts 2, 5, 7 & 8 under 42 U.S.C. § 1983 for violations of Plaintiffs' constitutional right to equal protection under the law from racial and religious discrimination based on OPD's alleged failure to conduct an adequate investigation into IAD complaint 13-1062; and (2) Counts 3 & 6 under 42 U.S.C. § 1985 based on an alleged conspiracy to violate Plaintiffs' civil rights. (See Dkt. Nos. 60 & 72 at 28.) Plaintiffs allege that they received a lower level of police services in connection with 13-1062 because they are Black Muslims and by contrast OPD provided a higher level of service to Occupy Oakland-related allegations of misconduct, all of which, Plaintiffs allege, involved only non-Black Muslims. (Dkt. No. 60 at 13-14.)
Defendant moves for summary judgment on all claims. (Dkt. No. 174.) The motion is fully briefed, (see Dkt. Nos. 188 & 191), and the Court heard oral argument on July 29, 2019.
Pursuant to the Federal Rules of Evidence, a judicially noticed adjudicative fact must be one "that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).
In support of its motion for summary judgment, Defendant requests judicial notice of three exhibits comprising documents filed in Allen v. City of Oakland, No. 00-cv-04599-WHO: (1) the Allen court's May 2012 Order Requiring Plan Re: Occupy Internal Affairs Investigations; (2) the City's June 2012 Occupy Investigation Plan; and (3) the City's May 2012 response memorandum to the Allen court's May 2012 order. (See Dkt. No. 175 at 2 (requesting judicial notice of Exs. A-C).) Judicial notice is appropriate for "undisputed matters of public record, including documents on file in federal or state courts." Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal citation omitted); see also Bennet v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (recognizing that courts "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue."). The Court thus grants judicial notice of the proffered documents because they are undisputed matters of public record.
Defendant also requests judicial notice of a June 2012 report entitled "Independent Investigation Occupy Oakland Response October 25, 2011." (Dkt. No. 175 at 2 (requesting judicial notice of Ex. D).) Defendant asserts that the report is publicly available and was "prepared by an independent contractor for the City of Oakland." (Id. at 3.) Plaintiffs do not oppose judicial notice of the report or otherwise dispute the report's authenticity. Accordingly, the Court grants judicial notice of the report because it is an undisputed matter of public record. See Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) (noting that district courts may take judicial notice of "[r]ecords and reports of administrative bodies").
Defendant objects on various grounds to the following evidence Plaintiff submitted in opposition to the instant motion: (1) portions of John Bey's declaration (Dkt. No. 185-1 at ¶¶ 3-20, 23-32); (2) portions of Saleem Bey's declaration (Dkt. No. 185-2 at ¶¶ 3-47); (3) portions of exhibits 1-5 & 38 to the declaration of A. Cabral Bonner (Dkt. Nos. 186-3-186-5, 187-35, & 188-1); and (4) exhibits 6-10, 13, 15-23, 27-31, 33-35, 37, 39, 40, 42, 44, 53, 55, 57-59 to Mr. Bonner's declaration in their entirety (Dkt. Nos. 186-6-186-10, 186-12, 186-14-186-16, 186-17, 186-18, 187-1-187-3, 187-7-187-9, 187-12, 187-13, 187-20, 187-22-187-24, 188-18, 188-27, 188-31, 188-33-188-35, 188-37, 188-42, 188-44, & 188-57). (See Dkt. No. 191 at 15-17.)
Defendant's objections are overruled as moot because the evidence was unnecessary to resolve the instant motion.
On summary judgment, the movant must demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Where the movant does not bear the burden of proof at trial for the underlying claims, it satisfies its burden if it can show that there is an absence of evidence to support "an element essential to [the nonmovant's] case, and on which [the nonmovant] will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In ruling on a motion for summary judgment, [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Tolan v. Cotton, 572 U.S. 650, 651 (2014) (internal quotation marks and citation omitted) (alteration in original).
To prevail on a claim under Section 1983 for violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must demonstrate that a state actor "`acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class,' and that [the] plaintiff was treated differently from persons similarly situated." Lam v. City & Cty. of San Francisco, 868 F.Supp.2d 928, 951 (N.D. Cal. 2012) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1988)); see also City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (noting that the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike"). Where the defendant is a municipality, a plaintiff is "required to establish that the [municipality] had a deliberate policy, custom, or practice that was the `moving force' behind the constitutional violation he suffered." Galen v. Cty. of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694-95 (1978)). There can be no municipal liability without an underlying constitutional violation. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994).
As previously discussed, Plaintiffs' Section 1983 claims are premised on OPD's alleged failure to conduct an adequate IAD investigation into 13-1062 because of racial and religious animus toward Black Muslims. Thus, to survive summary judgment Plaintiffs must proffer evidence that reasonably supports an inference that OPD treated Plaintiffs differently than it treated similarly situated individuals because of Defendant's policy or custom of racial or religious discrimination against Black Muslims.
Defendant argues that summary judgment is warranted for the threshold reason that Plaintiffs fail to demonstrate that they were treated differently than others similarly situated. The Court agrees.
"The goal of identifying a similarly situated class . . . is to isolate the factor allegedly subject to impermissible discrimination." United States v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989) (analyzing selective prosecution claim "under ordinary equal protection standards" and noting that "[t]he similarly situated group is the control group"), superseded on other grounds by statute, as recognized in United States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002). Identifying the similarly situated class is thus "[t]he first step in determining whether [OPD] violated [Plaintiffs'] right to equal protection." See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013).
Plaintiffs assert that the comparative class of similarly situated individuals is the Occupy Oakland complainants.
First, the Occupy Oakland complainants cannot serve as a "control group" because their IAD complaints were handled on a case-by-case basis and did not receive similar treatment. Former IAD Commander Lois attests that "there was no uniform treatment of Occupy Oakland-related complaints," and not all complaints "resulted in actual investigations." (Dkt. No. 174-1 at ¶ 6 (noting that "[a]n administrative closure or service complaint . . . would not typically result in any findings").) Indeed, "the great majority of [Occupy Oakland] complaints were resolved administratively." (Dkt. No. 175, Ex. C at 15.) Plaintiffs do not dispute that fact and cite Commander Lois's testimony for the proposition that "[o]f the more than [1,000] complaints, only 50 were sustained." (Dkt. No. 185 at 15.) Based on the disparity of treatment of IAD complaints within the Occupy Oakland class, the Occupy Oakland complainants as a whole are not similarly situated to Plaintiffs.
Second, the Frazier Group's report makes clear that the City did not retain the firm to investigate IAD's response to individual Occupy Oakland complainants but to instead focus on OPD's response to the events of October 25, 2011. (See Dkt. No. 175, Ex. D at 31.) The Frazier Group's review thus did not "investigate any individual event or complaint" regarding Occupy Oakland and instead concentrated on "identifying areas of policy, procedure, and tactics within OPD that needed immediate revision or updating." (Id.) In other words, the City did not retain the Frazier Group based on a need for impartial review on behalf of the Occupy Oakland complainants. Plaintiffs' argument that they are similarly situated to the Occupy Oakland complainants based on a similar need for independent review thus fails.
Plaintiffs are correct, however, to the extent they argue more broadly that they are similarly situated to the Occupy Oakland complainants because both groups consist of individuals who filed IAD complaints. (See Dkt. No. 185 at 20-21; see also Dkt. No. 72 at 25 (Court's April 2016 Order noting that Plaintiffs' equal protection claims are "predicated on the assertion that they were treated differently than the Occupy Oakland complainants (i.e., they were not given specific findings) even though they engaged in the same behavior (i.e., reporting particular officers' misconduct in Internal Affairs complaints).").) That said, given that IAD 13-1062 was not administratively closed, the similarly situated class for purposes of Plaintiffs' equal protection claims is any IAD complainant whose case was also not administratively closed. The Court must thus determine whether Plaintiffs have proffered evidence that raises a triable issue of material fact regarding whether IAD's investigation into 13-1062 reflects discriminatory treatment when compared with the non-administratively closed Occupy Oakland complainants. Plaintiffs have not done so.
As previously discussed, Plaintiffs argue that "OPD failed to make findings about particular officers' alleged misconduct in response to [13-1062], but they did so for the non-Black Muslim Occupy Oakland complainants." (Id. at 21.) In support of that assertion, Plaintiffs submit IAD complaint investigation reports and closeout letters regarding five Occupy Oakland complainants. (See Dkt. Nos. 187-14-187-17, 187-19, Exs. 45-48, 50.) However, none of the closeout letters identify the "particular officers" specified in their respective complaint investigation reports.
Further, Saleem Bey testified that in September 2013 Plaintiffs understood that the scope of 13-1062 would concern the 2004 Waajid Bey murder investigation, 2005 John Bey attempted murder investigation, and previous IAD complaint 07-0538. (Dkt. No. 178-1, Ex. B at 23 (272:10-21); see also id. at 28-29 (September 16, 2013 email from John Bey to Compliance Director and Saleem Bey relaying understood scope of investigation "[a]ccording to Capt. Cunningham").) The subject officers for the underlying investigations into the murder of Waajid Bey and attempted murder of John Bey were Sgt. Brock and Sgt. Sethna, respectively, both of whom retired years prior to the investigation into 13-1062.
To the extent Plaintiffs' assert that IAD 13-1062's lack of specific findings regarding particular officers involved in previous IAD complaint 07-0538 is indicative of disparate treatment, that argument fails because specific findings were not required. Sgt. Griffin's Report affirmed IAD's previous determination that 07-0538 was a service complaint. (See Dkt. No. 181, Ex. C-1 at 28 (noting that the facts of the complaint supported its administrative closure; specifically, the complaint did not allege facts that "if substantiated[ ] would constitute a [Manual of Rules] violation" by an individual officer but instead, "stated a concern that there was no progress with the [underlying] investigations.").) IAD does not provide findings for service complaints. (See Dkt. No. 178-2, Ex. C at 4 (14:4-19).)
Plaintiffs' argument that "IAD identified and augmented [Occupy Oakland] complaints based on evidence they found during their investigation," specifically, video footage of excess force, also fails to demonstrate disparate treatment because it concerns the administrative closure of previous IAD complaint 07-0538, not the investigation under 13-1062. (Dkt. No. 185 at 21-22 (arguing that "unlike for the white Occupy protestors, IAD did not even review the underlying criminal case file in 2007 before administratively closing 07-0538").) As previously discussed, the Court has ruled that claims relating to discriminatory conduct in connection with 07-0538 are time-barred. (See Dkt. No. 72 at 13, 20.) Plaintiffs acknowledge that "in 2013, armed with the same complaint that [Plaintiffs] made in 2007, Sgt. Griffin correctly identified that [Plaintiffs] complaint that the murder/attempted murder was insufficiently investigated raised a [Manual of Rules] 314.39 complaint." (Dkt. No. 185 at 22.) Thus, Plaintiffs "identified and augmented" argument does not concern 13-1062.
Finally, Plaintiffs' argument that the City's retention of the Frazier Group to "perform an independent review of the response to the Occupy protests" reflects disparate treatment fails for the reasons previously discussed.
It is beyond dispute that "[t]here is a constitutional right . . . to have police services administered in a nondiscriminatory manner—a right that is violated when a state actor denies such protection to disfavored persons." Elliot-Park v. Manglona, 592 F.3d 1003, 1007 (9th Cir. 2010) (internal quotation marks and citation omitted). In the absence of evidence that similarly situated IAD complainants received more favorable treatment, however, there is nothing to suggest that OPD conducted its investigation into 13-1062 in a discriminatory manner. To the extent Plaintiffs allege a policy of discriminatory animus against Black Muslims based on deposition testimony of Lt. Joyner in 2009, (see Dkt. No. 186-3, Ex, 2 at 10-11 (139:12-140:2) ("everything related to the Bakery was handled differently"), and Sgt. Longmire (see Dkt. No. 188-3, Ex. 3 at 5 (9:9-12:25) (describing federal and state claims Sgt. Longmire brought against OPD based on alleged racial and religious discrimination), that evidence is insufficient to overcome Plaintiffs' failure to show that similarly situated individuals received more favorable treatment. See Furnace, 705 F.3d at 1031 (finding allegations of discriminatory statements insufficient to overcome plaintiff's "failure to show that he was treated differently" than similarly situated individuals).
Those statements, in any event, do not support a reasonable inference of discriminatory animus into the investigation of 13-1062 for several reasons. First, Lt. Joyner's statement that "everything related to the Bakery was handled differently" was taken in 2009 regarding the California Department of Justice's investigation into IAD 07-0538. (See Dkt. No. 186-16, Ex. 17 at 26.) Sgt. Griffin concluded his investigation into 13-1062 roughly five years later in 2014. Second, Lt. Joyner explained the impetus for the 2009 statement in his deposition testimony in April 2018, in which he states:
(Dkt. No. 186-3, Ex. 2 at 10 (139:20-25).) Lt. Joyner then answered "[n]o" when directly asked whether "there was a culture in [OPD] to treat people who they believed were black Muslims unfairly as compared to other people." (See Dkt. No. 191-2, Ex. 2 at 33 (142:9-19).) Thus, Lt. Joyner's statement regarding the Bakery does not create a genuine issue of material fact regarding discriminatory animus into the investigation of 13-1062 because Lt. Joyner expressly denied a culture of discrimination against Black Muslims within OPD. See Scott v. Harris, 550 U.S. 372, 380-81 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of facts for purposes of ruling on a motion for summary judgment."). Third, as for Sgt. Longmire's testimony, he acknowledged that his claims based on racial and religious discrimination were dismissed in state and federal court. (See Dkt. No. 188-3, Ex. 3 at 6 (10:13).)
The record shows that Plaintiffs were involved in the investigation into 13-1062 and met directly with high-ranking IAD officers to discuss their case. Further, IAD proceeded with the investigation even though the officers involved in the underlying investigations into Waajid Bey's murder and John Bey's attempted murder had retired from OPD. IAD ultimately sustained findings against OPD as a whole based on deficiencies in those underlying investigations. Simply put, Plaintiffs fail to identify evidence sufficient to support an inference that the IAD investigation into 13-1062 reflects disparate treatment.
Accordingly, Plaintiffs' Section 1983 claims fail because of the absence of evidence giving rise to a genuine dispute of material fact regarding whether similarly situated IAD complainants received more favorable treatment. See Furnace, 705 F.3d at 1031 (affirming summary judgment on Section 1983 equal protection claim where plaintiff "adduce[d] no evidence that he was treated any differently" than individuals who were similarly situated).
Because Plaintiffs' Section 1983 claims fail, their Section 1985 conspiracy claims premised on the same alleged constitutional violations fail as well. See Caldeira v. Cty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) ("[T]he absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.").
Plaintiffs move to file under seal 40 exhibits submitted in support of its opposition to Defendant's motion for summary judgment, (see Dkt. Nos. 186 at 1 & 187), that were designated as "Confidential" by Defendant and produced pursuant to the stipulated Protective Order in this case, (see Dkt. No 96). Pursuant to Civil Local Rule 79-5(e), Defendant—as the Designating Party—filed a responsive declaration in support of sealing portions of exhibit 4 (Dkt. No. 186-4 at 13-16 (57:9-60:15)), exhibit 6 (Dkt. No. 186-6 at 21 (125:14-25)), and exhibit 50 (Dkt. No. 187-19 at 8). Defendant also requests sealing the following exhibits in their entirety: 7 (Dkt. No. 186-7), 8 (Dkt. No. 186-8), 10 (Dkt. No. 186-10), 15 (Dkt. No. 186-14), 16 (Dkt. No. 186-15), and 53 (Dkt. No. 187-20).
The Court has reviewed the exhibits cited by Defendant as containing confidential information and agrees that exhibits 4, 6, 7, 8, 10, 15, and 53 contain confidential information regarding criminal investigations that warrants sealing. Exhibit 16 likewise warrants sealing because it contains information regarding IAD 07-0553, which is not the subject of this case, including allegations of misconduct against specific subject officers, details regarding IAD's investigation, and identities of witnesses (including the identity and potential address of the complainant) and unrelated criminal defendants. The last page of exhibit 50 also warrants sealing because it is a photograph of a person related to IAD 11-1416, which is an Occupy Oakland-related investigation, and thus has no bearing on this case. Accordingly, the Court grants Plaintiffs' motion to seal in part. The identified portions of exhibits 4, 6, and 50 shall be filed under seal. Further, exhibits 7, 8, 10, 15, 16, and 53 shall be filed under seal in their entirety. The remainder of the exhibits shall be filed on the public docket.
For the reasons set forth above, the Court GRANTS Defendant's motion for summary judgment.
This Order disposes of Docket Nos. 174, 175, and 186.
