1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DIMITRIOS KASTIS, No. 1:18-cv-01325-DAD-BAM 11 Plaintiff, 12 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS IN PART 13 JOE ALVARADO, et al., (Doc. No. 40) 14 Defendants.
15 16 This matter is before the court on a motion to dismiss certain claims from plaintiff 17 Dimitrios Kastis’ third amended complaint (“TAC”) brought on behalf of defendants Joe 18 Alvarado, Matt Basgall, and the City of Clovis (“the City”) (collectively, “defendants”). (Doc. 19 No. 40.) Pursuant to General Order No. 617 addressing the public health emergency posed by the 20 COVID-19 outbreak, the motion was taken under submission for decision on the papers. (Doc. 21 No. 41.) The court has considered the parties’ briefs, and for the reasons set forth below, will 22 grant defendants’ motion to dismiss in part. 23 BACKGROUND 24 In his TAC, plaintiff alleges as follows. The Clovis Police Department (“CPD”) is an 25 agency of the City. (Doc. No. 39 (“TAC”) at ¶ 7.) Defendant Alvarado was at all relevant times 26 a CPD officer who “participated in the arrest, investigation and imprisonment of Plaintiff.” (Id. at 27 ¶ 8.) Defendant Basgall was the Chief of Police for the City, although it is not clear from 28 plaintiff’s allegations whether he served as the Chief of Police at all relevant times. (Id. at ¶ 9.) 1 On June 9, 2007, after receiving an anonymous report from a woman claiming that a 2 neighbor had kissed a nine-year old girl, CPD initiated a child molestation investigation of which 3 plaintiff was the target. (Id. at ¶ 16.) On July 5, 2007, a search warrant for plaintiff’s apartment 4 was sought and obtained from a judge of the Fresno County Superior Court based on an affidavit 5 prepared by defendant officer Alvarado. That affidavit stated as follows: (1) CPD received a 6 report that plaintiff had invited three minor females into his apartment for candy and Gatorade 7 and then blocked one of them (identified in the TAC as “CV1”) in the doorway and quickly 8 kissed her five times; (2) CV1 had previously seen plaintiff purposely grab another girl’s buttocks 9 (identified in the TAC as “CV2”) while they were playing soccer; (3) plaintiff had allegedly 10 touched CV2’s buttocks intentionally while they were swimming in the apartment complex pool; 11 (4) CV2 reported that plaintiff had previously invited her to get candy from a bowl in his 12 apartment and allegedly placed his hands over her shoulders and onto her chest; and (5) plaintiff 13 had previously taken a photograph of CV2 while she was wearing her bathing suit and allegedly 14 used that photograph as a screensaver on his computer. (Id. at ¶ 17.) The warrant that ultimately 15 issued based on defendant Alvarado’s affidavit “authorized the search of Plaintiff’s apartment for 16 various items including: Computer systems located in the residence; a candy bowl; . . . and a 17 digital camera.” (Id. at ¶ 18.) Defendant Alvarado’s affidavit also set forth his opinions based on 18 his training and experience as to individuals who produce, trade, distribute, and/or possess child 19 pornography. (Id.) Based on those opinions, the warrant “broadly listed the following additional 20 property to be searched for and seized,” including “[a]ll electronic processing and storage 21 devices, computers and computer systems” and “photos and other records which depict 22 possession/sales of stolen property.” (Id.) On July 5, 2007, CPD executed the search warrant and 23 plaintiff was arrested and charged in the Fresno County Superior Court with annoying or 24 molesting a child in violation of the California Penal Code. (Id. at ¶¶ 15, 19.) 25 On August 4, 2008, while plaintiff was in local custody, a federal criminal complaint was 26 filed against him in this United States District Court, charging him with possession and 27 distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (a)(4). (Id. at ¶ 20.) 28 The federal criminal complaint was based on evidence seized pursuant to the state court issued 1 search warrant of July 5, 2007. (Id.) On August 14, 2008, plaintiff was indicted by a federal 2 grand jury on the same charges alleged in the federal criminal complaint. (Id.) 3 On April 6, 2016, almost nine years after his arrest, the charges brought against plaintiff in 4 the Fresno County Superior Court were dismissed. (Id. at ¶ 21.) On April 7, 2016, plaintiff 5 appeared in his federal criminal case and moved to suppress the evidence that had been seized 6 pursuant to the warrant issued by the state court on July 5, 2007. (Id. at ¶¶ 21, 22.) On August 7 30, 2018, the undersigned granted plaintiff’s motion to suppress, finding that the search warrant 8 was issued based on false and misleading statements and omissions made by defendant Alvarado 9 in his affidavit supporting his request for the warrant, in violation of Franks v. Delaware, 438 10 U.S. 154 (1978). (Id. at ¶ 28.) Following the suppression of all evidence seized pursuant to that 11 search warrant, which the court found had been tainted by the Franks violation, the federal 12 charges against plaintiff were dismissed on September 7, 2018. (Id.) 13 On September 26, 2018, plaintiff commenced this civil action brought pursuant to 42 14 U.S.C. § 1983. (Doc. No. 1.) Plaintiff filed his TAC on June 2, 2020. (TAC.) In his TAC 15 plaintiff asserts the following causes of action: (1) a Franks claim alleging judicial deception in 16 violation of the Fourth Amendment against defendant Alvarado; (2) an unreasonable search and 17 seizure claim in violation of the Fourth Amendment against defendant Alvarado; (3) Fourteenth 18 Amendment due process claims against defendant Alvarado for fabrication of evidence and 19 against defendants Alvarado and Basgall for failure to disclose evidence; (4) a municipal liability 20 claim against the City; and (5) a supervisory liability claim against defendant Basgall. (Id. at 21 ¶¶ 36–72.) 22 On June 16, 2020, defendants filed the pending motion to dismiss certain claims asserted 23 in the TAC. (Doc. No. 40.) The court had previously concluded that plaintiff plausibly alleged a 24 Fourth Amendment judicial deception claim against defendant Alvarado. (See Doc. No. 38 at 4– 25 8.) The pending motion therefore seeks only the dismissal of plaintiff’s remaining four claims 26 alleged in the TAC. 27 On July 7, 2020, plaintiff filed his opposition to the pending motion to dismiss, and on 28 July 14, 2020, defendants filed their reply thereto. (Doc. Nos. 43, 44.) 1 LEGAL STANDARD 2 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 3 is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 4 578, 581 (9th Cir. 1983). A dismissal may be warranted where there is “the lack of a cognizable 5 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri 6 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts 7 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 8 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows 9 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 11 In evaluating whether a complaint states a claim on which relief may be granted, the court 12 accepts as true the allegations in the complaint and construes the allegations in the light most 13 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United 14 States, 915 F.2d 1242, 1245 (9th Cir. 1989), abrogated on other grounds by DaVinci Aircraft, 15 Inc. v. United States, 926 F.3d 1117 (9th Cir. 2019). However, the court will not assume the truth 16 of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. 17 Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Federal Rule of Civil Procedure 8(a) does 18 not require detailed factual allegations, “[t]hreadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 676. A complaint 20 must do more than allege mere “labels and conclusions” or “a formulaic recitation of the elements 21 of a cause of action.” Twombly, 550 U.S. at 555. 22 ANALYSIS 23 A. Fourth Amendment Unreasonable Search and Seizure Claim Against Defendant 24 Alvarado 25 Plaintiff alleges that the search warrant “is unconstitutionally broad, contains false 26 statements and lacks probable cause” because it authorized the seizure of all computers and 27 digital media, as well as evidence relating to the possession of child pornography, “even though 28 Alvarado’s affidavit did not contain any facts to support probable cause to believe that child 1 pornography would be found.” (TAC at ¶ 44.) Plaintiff contends that defendant Alvarado 2 similarly had no basis to believe that stolen property would be found in his apartment but that the 3 search warrant nevertheless authorized the seizure of stolen property. (Id.) Defendant Alvarado 4 moves to dismiss plaintiff’s unreasonable search and seizure claim, contending that even with the 5 removal of the allegedly false statements from his affidavit, the search warrant “still contains 6 facts establishing probable cause that Kastis was sexually molesting young girls on the soccer 7 team he coached and was in possession of child pornography . . ..” (Doc. No. 40-1 at 7.)1 8 Defendant Alvarado’s argument is unavailing. The court has previously determined that 9 plaintiff plausibly asserted a cognizable judicial deception claim by alleging that defendant 10 Alvarado made misrepresentations in, and omitted material facts from, his search warrant 11 affidavit “and that those misrepresentations and omissions were material to the reviewing state 12 court judge’s probable cause determination.” (Doc. No. 38 at 7) (emphasis added).2 It stands to 13 reason that if plaintiff has plausibly alleged a judicial deception claim against defendant 14 Alvarado, then he has also plausibly alleged that the search of his apartment and the seizure of his 15 computer—the fruits of the tainted search warrant obtained—were unreasonable. See Hervey v. 16 1 The TAC does not allege that any of the minors that plaintiff was alleged to have molested were 17 players on a soccer team that he coached. Throughout their motion to dismiss, defendants rely on this and other facts that were not alleged in the TAC. (See generally Doc. No. 40-1.) The court 18 previously admonished defendants’ counsel that at the motion to dismiss stage the court generally 19 does not consider facts other than those alleged in the complaint. (Doc. No. 38 at 4 n.2.)
20 2 The alleged misrepresentations were: “(1) that CV1 walked into plaintiff’s apartment when, in fact, CV1 reported to law enforcement that she had ‘tripped into the apartment’; (2) that CV1’s 21 mother advised law enforcement that CV1 had told her that plaintiff had cornered her in his apartment’s doorway and kissed her on the mouth five times when, in fact, this statement was 22 relayed . . . by CV1 herself; (3) that CV2 stated that plaintiff had taken several photos of her in a 23 bathing suit . . . when, in fact, during her interview with law enforcement, CV2 had only reported a single photo taken of her in a bathing suit by plaintiff; and (4) that CV2 stated that plaintiff 24 ‘always touches her butt when they go swimming in the apartment complex pool’ when, in fact, CV2 only reported that plaintiff had touched her buttocks on one occasion while swimming.” 25 (Doc. No. 38 at 6) (citation omitted). The alleged omissions were: “(1) that a law enforcement officer felt that CV1 was being deceptive about how she entered plaintiff’s apartment; (2) that 26 CV2 stated that, on one occasion, she had jumped on plaintiff’s back; (3) that neither CV1 nor her 27 parents made a complaint to the police; (4) the ‘inconsistencies . . . regarding the date of the alleged kissing incident,’ . . . ; and (5) that CV1 had told law enforcement that ‘CV2 and her sister 28 had thrown dirt and strawberries at Plaintiff’s door.’” (Id.) (citations omitted). 1 Estes, 65 F.3d 784, 789 (9th Cir. 1995) (to allege a judicial deception claim, a plaintiff must 2 allege that “without the dishonestly included or omitted information, the magistrate would not 3 have issued the warrant. Put another way, the plaintiff must establish that the remaining 4 information in the affidavit is insufficient to establish probable cause”) (emphasis added), as 5 amended on denial of reh’g (Dec. 5, 1995); see also United States v. Stanley, 545 F.2d 661, 665 6 (9th Cir. 1976) (“In the absence of probable cause or consent, th[e] search violated the 7 petitioner’s Fourth Amendment right to be free of ‘unreasonable searches and seizures.’”). 8 Therefore, defendant Alvarado’s repeated contention that there was reasonable suspicion 9 and/or probable cause at the time the search warrant issued to believe that plaintiff had committed 10 lewd or lascivious acts on a child misses the mark. (See, e.g., Doc. No. 40-1 at 7–9.) Plaintiff’s 11 unreasonable search and seizure claim is not premised on an alleged lack of reasonable suspicion 12 or probable cause to believe that he was molesting minors at the time the warrant issued. Rather, 13 plaintiff contends that defendant Alvarado lacked probable cause to seek a warrant as broad as the 14 one that was ultimately issued and that authorized the seizure of his computer, which in reality 15 was aimed at discovery of child pornography. (TAC at ¶¶ 44, 45.) Defendant Alvarado counters, 16 without citation to any authority, that the facts supporting a determination that plaintiff was 17 molesting minors also establishes probable cause that he possessed child pornography. (Doc. No. 18 40-1 at 7; see also Doc. No. 44 at 6.)3 The Ninth Circuit, however, has squarely disagreed with 19 such an argument and has held that “a warrant predicated on the bare inference that those who 20 molest children are likely to possess child pornography . . . alone, does not establish probable 21 3 Defendant Alvarado argues that the fact that plaintiff took a picture of one of the alleged minor 22 victims in a bikini and then used that picture as his screensaver provides probable cause to believe 23 that his computer contained child pornography. (Doc. No. 40-1 at 8.) However, the mere taking of a photograph—when there is no suggestion that the photograph was lewd or lascivious— 24 cannot suffice as probable cause to believe that plaintiff was in possession of child pornography. See United States v. Doyle, 650 F.3d 460, 473 (4th Cir. 2011) (“The mere presence of nudity in a 25 photograph, even child nudity, does not constitute child pornography . . .. Instead, the picture must contain a ‘lewd exhibition’ of nudity.. . . [N]othing in the affidavit supports a belief that the 26 alleged pictures showed a ‘lewd exhibition of nudity’ . . .. The affidavit therefore lacked probable 27 cause to justify a search . . . for child pornography.”). Here, the minor in the single photograph was not nude but in a bathing suit, and there is no suggestion that the photograph was in any way 28 lewd or lascivious. 1 cause to search a suspected child molester’s home for child pornography.” United States v. 2 Needham, 718 F.3d 1190, 1195 (9th Cir. 2013); see also United States v. Perkins, 850 F.3d 1109, 3 1120–21 (9th Cir. 2017) (holding that absent any explanation of why defendant’s prior child 4 molestation conviction made it more likely that he possessed child pornography, the prior 5 conviction did not support probable cause for child pornography warrant); Dougherty v. City of 6 Covina, 654 F.3d 892, 899 (9th Cir. 2011) (“Officer Bobkiewicz’s conclusory statement tying this 7 ‘subject,’ alleged to have molested two children and looked inappropriately at others, to ‘having 8 in [his] possession child pornography’ is insufficient to create probable cause here.”); United 9 States v. Weber, 923 F.2d 1338, 1344–45 (9th Cir. 1991) (holding that conclusory statements 10 about the habits of “child molesters,” “pedophiles,” and “child pornography collectors,” coupled 11 with evidence that on one occasion the defendant had ordered but never picked up child 12 pornography, was insufficient to establish probable cause). 13 Accordingly, defendant Alvarado’s motion to dismiss plaintiff’s unreasonable search and 14 seizure claim against will be denied. 15 B. Fourteenth Amendment Due Process Claim Against Defendants Alvarado and 16 Basgall 17 Defendant Alvarado next moves to dismiss plaintiff’s due process claims alleging that he 18 fabricated evidence and failed to disclose exculpatory evidence. (Id. at 10–14.) Similarly, 19 defendant Basgall moves to dismiss plaintiff’s due process claim alleging that he, too, failed to 20 disclose exculpatory evidence. (Id.) 21 1. Fabrication of Evidence 22 As an initial matter, plaintiff’s fabrication of evidence claim will be dismissed because he 23 asserts it for the first time in his TAC, thereby exceeding the scope of the limited leave to amend 24 that the court granted him when it dismissed certain claims from his second amended complaint 25 to cure specific deficiencies noted in those claims. (See generally Doc. No. 38); see also DeLeon 26 v. Wells Fargo Bank, N.A., No. 10-cv-01390-LHK, 2010 WL 4285006, at *3 (N.D. Cal. Oct. 22, 27 2010) (“[W]here leave to amend is given to cure deficiencies in certain specified claims, courts 28 have agreed that new claims alleged for the first time in the amended pleading should be 1 dismissed or stricken.”). However, even if the court were to reach the merits of plaintiff’s new 2 deliberate fabrication of evidence claim, the court finds that he has failed to allege sufficient facts 3 to plausibly allege such a claim. 4 “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the 5 defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the 6 plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). As to the 7 first element, given that the court has previously determined that plaintiff plausibly asserted a 8 cognizable judicial deception claim by alleging that defendant Alvarado, either intentionally or 9 with reckless disregard for the truth, made misrepresentations in and omitted material facts from 10 his search warrant affidavit, the court finds that the TAC plausibly alleges that defendant 11 Alvarado deliberately fabricated evidence. See Spencer, 857 at 793 (“Deliberate fabrication can 12 be shown by direct evidence, for example, when ‘an interviewer . . . deliberately mischaracterizes 13 witness statements in her investigative report.’”) (quoting Costanich v. Dep’t of Soc. & Health 14 Servs., 627 F.3d 1101, 1111 (9th Cir. 2010)). 15 As to the second element of such a claim, however, the court finds that plaintiff has not 16 alleged facts that plausibly allege that the allegedly fabricated evidence caused his deprivation of 17 liberty. To establish causation, a plaintiff must prove that “(a) the act was the cause in fact of the 18 deprivation of liberty, meaning that the injury would not have occurred in the absence of the 19 conduct; and (b) the act was the ‘proximate cause’ or ‘legal cause’ of the injury . . ..” Spencer, 20 857 F.3d at 798. Here, plaintiff’s TAC is entirely bereft of any factual allegations plausibly 21 suggesting that defendant Alvarado’s materially misleading false statements in and omissions 22 from his search warrant affidavit caused plaintiff’s deprivation of liberty or injury. Plaintiff 23 merely alleges that violations of his rights “led to pre-trial incarceration of over 10 years before 24 all charges were dismissed.” (TAC at ¶ 1.) He does not allege that absent the allegedly 25 fabricated evidence he would not have been detained, or that he would not have been detained for 26 as long. Although plaintiff has plausibly alleged that the warrant, as issued, was overbroad 27 because defendant Alvarado had no basis to believe that he was in possession of child 28 pornography, he was not ordered detained by the state court due to his alleged possession of child 1 pornography. Rather, plaintiff “was arrested and charged in the Fresno County Superior Court 2 with annoying or molesting a child” and after he “was held to answer to the charges, [he was] . . . 3 ordered detained” on those state charges. (TAC at ¶¶ 19, 20) (emphasis added). Notably, 4 plaintiff does not contend that defendant Alvarado lacked probable cause to believe that he had 5 been annoying or molesting minors. Indeed, the allegations in the TAC suggest that even absent 6 the allegedly false and misleading statements and omissions in defendant Alvarado’s affidavit, 7 there remained probable cause to believe that plaintiff Kastis had done so in violation of 8 California Penal Code § 647.6(a), or had engaged in lewd or lascivious acts on a child, in 9 violation of California Penal Code § 288(a). (See footnote 2, above.) 10 Accordingly, the court will grant defendant Alvarado’s motion to dismiss plaintiff’s 11 fabrication of evidence claim without leave to amend.4 12 2. Failure to Disclose Exculpatory Evidence 13 Plaintiff also asserts claims against defendants Alvarado and Basgall for failure to disclose 14 exculpatory evidence.5 Plaintiff alleges that as a result of defendants’ failures to disclose 15 4 “Generally, the Ninth Circuit has a liberal policy favoring amendments and, thus, leave to 16 amend should be freely granted.” Torres v. Nationstar Mortg. LLC, No. 16-cv-302-JFW-SP, 2016 WL 10988576, at *2 (C.D. Cal. Apr. 8, 2016). Although plaintiff’s fabrication of evidence 17 was alleged for the first time in his TAC, since the beginning of this action in 2018, he has alleged that defendant Alvarado fabricated evidence. (See generally Doc. Nos. 1, 11, 19, 39.) 18 The allegations with respect to fabrication of evidence in the original complaint and each 19 amended complaint thereafter have not been sufficient to plausibly allege that defendant Alvarado fabricated evidence. The court, therefore, finds that granting plaintiff further leave to amend in 20 this regard would “be an exercise in futility.” Torres, 2016 WL 10988576, at *2. Moreover, and as discussed above, plaintiff should not have even asserted this claim in TAC, since it exceeds the 21 scope of the court’s prior grant of leave to amend.
22 5 In his second amended complaint, plaintiff had asserted a claim based upon the alleged 23 suppression of exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). (Doc. No. 19 at 19–21.) The court granted defendants’ motion to dismiss that claim without leave to 24 amend, noting that because plaintiff was never convicted of the crimes he was charged with in either state or federal court, he could not maintain a § 1983 claim based on an alleged Brady 25 violation. (Doc. No. 38 at 11.) Nonetheless, the court granted plaintiff leave to amend to attempt to assert a due process claim alleging a failure to disclose exculpatory information pursuant to the 26 Ninth Circuit’s decision in Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014). (See id. at 10 n.5.) 27 Although not explicitly alleged in the TAC, it appears that plaintiff is asserting his claims against defendants Alvarado and Basgall for failure to disclose exculpatory information pursuant to 28 Tatum. (See, e.g., TAC at ¶¶ 49, 50; see also Doc. No. 43 at 13–15.) 1 exculpatory evidence, he was unjustifiably held in pretrial detention for a prolonged period of 2 time. (TAC at ¶¶ 48–52.) 3 The Ninth Circuit has held that “[w]here . . . investigating officers, acting with deliberate 4 indifference or reckless disregard for a suspect’s right to freedom from unjustified loss of liberty, 5 fail to disclose potentially dispositive exculpatory evidence to the prosecutors, leading to the 6 lengthy detention of an innocent man, they violate the due process guarantees of the Fourteenth 7 Amendment.” Tatum v. Moody, 768 F.3d 806, 816 (9th Cir. 2014). In Tatum, the investigating 8 officers’ failed to inform the prosecutor that “they knew, before [defendant] Walker was bound 9 over for trial, that additional demand-note robberies, perpetrated with the same distinctive modus 10 operandi as those for which Walker was being held, had occurred in the same part of Los Angeles 11 after Walker was in police custody.” Id. at 809. The Ninth Circuit held that the “natural 12 consequence” of the investigating officers’ conduct 13 was that Walker remained in detention until the exculpatory information was disclosed to the prosecutors and then to Walker’s 14 lawyers. [The investigating officers] enhanced the likelihood of that outcome because they not only failed accurately to disclose the 15 continuation of the crime spree after Walker’s arrest, they affirmatively misrepresented the truth as to that fact in reports on 16 which the prosecutors and defense counsel relied, writing that the robberies ended with Walker’s removal from the streets; they also 17 failed to report [the other suspect’s] arrest for the later robberies. In this sense, [the investigating officers] “concealed from the 18 prosecutors, and misrepresented to them, facts highly material to— that is, facts likely to influence—the decision whether to prosecute 19 [Walker] and whether (that decision having been made) to continue prosecuting him.” Jones v. City of Chicago, 856 F.2d 985, 993 (7th 20 Cir. 1988). 21 Id. at 817. 22 Here, the court finds that plaintiff has failed to plausibly allege a due process claim 23 pursuant to the decision in Tatum because he does not allege that defendant Basgall was one of 24 the officers involved in the investigation of him,6 and does not allege what exculpatory 25 information defendant Alvarado withheld from prosecutors. To the extent that plaintiff is arguing 26 6 In fact, as noted above, while the TAC alleges that defendant Basgall “was the Chief of Police 27 for the City of Clovis” (TAC at ¶ 9), plaintiff does not specify when defendant Basgall was the Chief of Police, let alone that he was the Chief of Police during any portion of CPD’s 28 investigation of plaintiff. 1 that the inconsistencies between the alleged victims’ interview statements and defendant 2 Alvarado’s statements in his affidavit constitute exculpatory information, the court is 3 unpersuaded by that argument. Setting aside that plaintiff provides no authority or persuasive 4 analysis in support of his argument in this regard, the Ninth Circuit in Tatum “emphasize[d] the 5 narrowness of” its holding, “which is restricted to detentions . . . caused by the investigating 6 officers’ failure to disclose highly significant exculpatory evidence to prosecutors . . ..” 768 F.3d 7 at 819 (emphasis added). Here, the inconsistencies between the investigative interviews and how 8 they were reported by defendant Alvarado in his search warrant affidavit that plaintiff takes issue 9 with, when viewed in the light most favorable to him, are simply not highly significant 10 exculpatory evidence. The fact that defendant Alvarado’s affidavit erroneously described the 11 alleged victims’ statements to CPD with respect to how many pictures plaintiff allegedly took of 12 one victim, or how many times or how plaintiff allegedly touched or kissed other victims, or who 13 said what to the police does not mean that correcting those inconsistencies would have exculpated 14 plaintiff. See id. at 820 (“We can assume here that this sort of due process claim is actually 15 triggered by the failure to disclose evidence that is not merely material but strongly indicative of 16 the plaintiff’s innocence.”). Moreover, even if correcting the inconsistencies would constitute 17 highly significant exculpatory information, here plaintiff has not alleged any facts from which it 18 could be plausibly inferred that defendant Alvarado withheld or failed to turn over the recordings 19 or transcripts of the interviews of the alleged victims to the prosecution.7 20 Accordingly, the motion to dismiss plaintiff’s Fourteenth Amendment claims for failure to 21 disclose exculpatory evidence brought on behalf of defendants Alvarado and Basgall will be 22 ///// 23 ///// 24 7 Plaintiff also asserts in a single conclusory sentence of the TAC that defendant Alvarado’s 25 failure to turn over a recording of plaintiff’s own interview with law enforcement to the prosecution or the defense “for a lengthy time” also constitutes a due process violation pursuant 26 to the holding in Tatum. (TAC at ¶ 48.) Plaintiff, however, has not alleged any facts about what 27 was said in that interview, much less why it would have exculpated him, and he has also not alleged any facts plausibly suggesting that defendant Alvarado withheld the recording from the 28 prosecution. 1 granted without further leave to amend.8 2 C. Municipal Liability Claim Against the City 3 Next, the City moves to dismiss plaintiff’s municipal liability claims brought against it on 4 a theory of Monell liability, arguing that plaintiff has not sufficiently alleged facts in his TAC 5 establishing an actionable policy, custom, or practice. (Doc. No. 40-1 at 14–18); see also Monell 6 v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). 7 The court has previously recited the legal standards for alleging a municipal liability claim 8 pursuant to Monell and dismissed plaintiff’s municipal liability claim because his reliance on an 9 allegedly similar search warrant at issue in a different case involving CPD and the City (Garber v. 10 City of Clovis, 1:09-cv-00242-AWI-DLB (E.D. Cal.)) was insufficient to provide the basis for a 11 claim that the City had a practice or custom of failing to adequately train its officers on what 12 information to include in search warrant applications. (See Doc. No. 38 at 11–14); see also 13 Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation 14 ordinarily is insufficient to establish a longstanding practice or custom.”). The court found that 15 plaintiff’s second amended complaint “fail[ed] to plausibly allege a municipal liability claim 16 against the City as it contain[ed] no factual allegations to plausibly suggest a policy, custom, or 17 practice.” (Id. at 14.) In his opposition to defendants’ motion to dismiss his second amended 18 complaint, plaintiff had alleged that at the 2017 Franks evidentiary hearing in his federal criminal 19 case, defendant Alvarado testified that he was trained to prepare search warrants in the manner 20 that he did in plaintiff’s case. (Doc. No. 28 at 20.) Because that fact was not alleged in his 21 second amended complaint, the court did not consider it but did note that its inclusion “would 22 lend support for a claim against the City.” (Doc. No. 38 at 15 n.7.) 23 ///// 24 8 Although plaintiff’s claim failure to disclose exculpatory evidence pursuant to Tatum was 25 alleged for the first time in his TAC, since the beginning of this action in 2018, plaintiff has alleged that defendant Alvarado suppressed exculpatory evidence. (See generally Doc. Nos. 1, 26 11, 19, 39.) The allegations with respect to exculpatory evidence in the original complaint and in 27 each amended complaint thereafter have not been sufficient to plausibly assert that exculpatory evidence was withheld. Therefore, granting plaintiff leave to amend his claim brought pursuant 28 to Tatum would be futile. 1 In the TAC, plaintiff has added the following factual allegations with respect to defendant 2 Alvarado’s testimony during the Franks evidentiary hearing before this court: 3 Alvarado testified at the Franks Hearing that he had worked for Clovis P.D. for 15 years; that he had authored approximately 50 other 4 search warrants prior to the 2007 Kastis warrant; that he wasn’t trained to include exculpatory information in the warrants; that he 5 was trained to add boilerplate paragraphs in every search warrant relating to the existence of stolen property; that he had prepared child 6 pornography search warrants before the warrant at issue in this case and had borrowed paragraphs from the child pornography search 7 warrants to include in the Kastis search warrant; he admitted that there was no evidence, nor even a suspicion, that any pictures had 8 been taken depicting minors in the nude in the Kastis matter and yet, admitted that he included language relating to the characteristics of 9 people who possess sexually explicit images of children in the warrant; that the lead investigator in the department taught him that 10 on child pornography warrants a specific paragraph needs to be included each time; and that he had written very similar warrants in 11 the past. 12 (TAC at ¶ 31.) Plaintiff then points the court to the search warrant at issue in the Garber case, 13 noting that [i]n February, 2007, Clovis P.D. Officer Abby Spencer drafted a 14 search warrant which also allowed the seizure of computers from a suspect on grounds that child pornography would be found therein 15 without making a claim in her affidavit that any of the images she viewed during the investigation were of minors engaged in sexually 16 explicit conduct. [The Garber] lawsuit was brought against City based on the Spencer warrant . . .. Plaintiff is informed and believes 17 the Spencer warrant contained very similar boilerplate language concerning characteristics allegedly found in people who possess 18 images/pictures of minors engaged in sexually explicit conduct as was utilized by Alvarado in preparing the Kastis warrant. 19 20 (Id. at ¶ 32.) 21 In the pending motion to dismiss, the City argues that the court should once again find 22 plaintiff’s reliance on Garber to be an insufficient basis upon which to allege a practice or 23 custom. (Doc. No. 40-1 at 15.) The City also contends that the new allegations in the TAC with 24 respect to defendant Alvarado’s Franks hearing testimony do not adequately demonstrate the 25 existence of a practice or custom because plaintiff has not alleged that any of the fifty other 26 warrants that defendant Alvarado applied for prior to applying for the warrant in plaintiff’s case 27 “contained mistakes or excluded information and resulted in a constitutional violation.” (Id.) 28 ///// 1 The City’s arguments in this regard are unpersuasive. The TAC’s allegations with respect 2 to defendant Alvarado’s Franks hearing testimony, coupled with the allegations about the flawed 3 search warrant application in the Garber case, are sufficient to plausibly allege that CPD had a 4 custom or practice of including boilerplate language in its applications for search warrants and 5 that CPD failed to train its officers on how to properly seek a search warrant aimed at discovering 6 child pornography. For example, defendant Alvarado testified that he was not trained to include 7 exculpatory information or evidence that detracted from a probable cause showing in warrant 8 affidavits and that he was trained to add boilerplate paragraphs with respect to stolen property to 9 every search warrant application. Moreover, plaintiff alleges that the search warrant at issue in 10 the Garber case contained the same boilerplate language with respect to the likelihood of 11 discovering child pornography that defendant Alvarado included in his search warrant affidavit in 12 plaintiff’s case. Accordingly, plaintiff is not relying on Garber alone to establish the City’s 13 allegedly unconstitutional custom or practice; he is relying on what took place in Garber to 14 corroborate defendant Alvarado’s Franks hearing testimony that despite having no suspicion or 15 evidence to believe that the picture that plaintiff had allegedly taken of a minor was sexual in 16 nature, defendant Alvarado nevertheless included the boilerplate language because that is how he 17 was trained by a lead investigator for CPD. 18 As one district court has thoughtfully concluded, a complaint alleging a Monell claim 19 must “pair general averments of a policy or custom with particular examples.” Ulloa v. Prince 20 George’s County, No. 15-cv-0257-DKC, 2015 WL 7878956, at *6 (D. Md. Dec. 4, 2015); see 21 also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“To be entitled to the presumption of 22 truth, allegations in a complaint . . . must contain sufficient allegations of underlying facts to give 23 fair notice and to enable the opposing party to defend itself effectively.”). Plaintiff has done so 24 here. Accordingly, the City’s motion to dismiss plaintiff’s municipal liability claim will be 25 denied. 26 D. Supervisory Liability Claim Against Defendant Basgall 27 Finally, defendant Basgall moves to dismiss plaintiff’s supervisory liability claim. (Doc. 28 No. 40-1 at 18.) The court previously recited the legal standards applicable to a supervisory 1 liability claim and dismissed plaintiff’s claim, noting that the second amended complaint 2 sets forth no factual allegations that, if proven, would demonstrate that defendant Basgall took any action with respect to the alleged 3 deprivations of plaintiff’s constitutional rights. The allegations supporting this claim are not based on defendant Basgall’s conduct 4 but are instead premised solely on his role as a supervisor [and] . . . allegations that a supervisor “knew or should have known” of 5 misconduct are conclusory, and therefore not entitled to the presumption of truth. 6 (Doc. No. 38 at 15–17) (citations omitted). In his TAC, plaintiff has not alleged any additional 7 facts that are sufficient to plausibly allege a supervisory liability claim against defendant Basgall. 8 Instead, plaintiff continues to simply allege in conclusory fashion that Basgall “knew or should 9 have known” that plaintiff’s rights were being violated. (See, e.g., TAC at ¶¶ 50, 66–72.) 10 Accordingly, because the TAC contains only conclusory allegations against defendant Basgall, 11 plaintiff’s supervisory liability claim will be dismissed for the reasons stated in the court’s prior 12 order and without further leave to amend. 13 CONCLUSION 14 For the reasons set forth above, 15 1. Defendants’ motion to dismiss (Doc. No. 40) is granted in part and denied in part 16 as follows: 17 a. Plaintiff’s Fourteenth Amendment fabrication of evidence claim against 18 defendant Alvarado is dismissed without leave to amend; 19 b. Plaintiff’s Fourteenth Amendment failure to disclose exculpatory evidence 20 claims against defendants Alvarado and Basgall are dismissed without 21 leave to amend; 22 c. Plaintiff’s supervisory liability claim against defendant Basgall is 23 dismissed without further leave to amend; 24 d. Defendants’ motion to dismiss is denied in all other respects; 25 2. This action now proceeds on plaintiff’s Fourth Amendment judicial deception 26 claim against defendant Alvarado, his Fourth Amendment unreasonable search and 27 seizure claim against defendant Alvarado, and his municipal liability claim against 28 1 the City; 2 3, In accordance with Federal Rule of Civil Procedure 12(a), defendants Alvarado 3 and the City are directed to file their answer to the remaining claims in the TAC 4 within fourteen (14) days of the issuance of this order; 5 4. The Clerk of the Court is directed to administratively terminate defendants Clovis 6 Police Department, District Attorney’s Office Fresno County, U.S. Department of 7 Justice, Department of Homeland Security, and Matt Basgall as defendants in this 8 action; and 9 5. The matter is referred to the assigned magistrate judge for the setting of a 10 scheduling conference. 11 | IT Is SO ORDERED. a | Dated: _ October 29, 2020 LL 1 Yrod 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16