Lesher v. City of Anderson

Opinion

----oo0oo---- THERESE L. LESHER, No. 2:21-cv-00386 WBS DMC Plaintiff, v. MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION FOR CITY OF ANDERSON, a municipal PARTIAL SUMMARY JUDGMENT corporation; City of Anderson Police Sergeant SEAN MILLER, individually; City of Anderson Police Officers JEFFREY MILEY, individually, and KAMERON LEE, individually; and, DOES 1 through 50, jointly and severally, Defendants. ----oo0oo---- Plaintiff Therese Lesher initiated this action against defendants City of Anderson, Sergeant Sean Miller, and Officers Jeffrey Miley and Kameron Lee, alleging violations of the United States Constitution and state law. (Docket No. 28.) Defendants now seek summary judgment on plaintiff’s first claim for First Amendment retaliation under 42 U.S.C. § 1983; third claim for Fourth Amendment malicious prosecution under § 1983; sixth claim for malicious prosecution under California law; and seventh claim for violation of due process under Article I § 13 of the California Constitution. I. Background On August 30, 2019, plaintiff and several of her family members were having a social gathering in the parking lot outside the building where plaintiff’s cousin, Denhene Leach, lived. (See Lesher Decl. (Docket No. 83-13) ¶ 3.) The defendant officers were dispatched to the gathering in response to a noise complaint. (Defs.’ Statement of Undisputed Facts (“SUF”) (Docket No. 76-2) ¶ 2.) Upon the officers’ arrival, a dog belonging to Ms. Leach ran towards the officers. (Lesher Decl. ¶ 4.) Officer Lee stated that the dog bit him. (See Dumlao Dep. at 12:4-6; Lee Dep. at 26:19-21.) Plaintiff’s dog was also nearby, situated in a vehicle with the passenger side window open. (See Lesher Decl. ¶ 4.) The officers instructed plaintiff and Ms. Leach to restrain the dogs. (See Lee Dep. at 22:3-9; Lesher Dep. at 78:23-79:7.) Plaintiff reached through the car window and held onto her dog. (See Dumlao Dep. at 12:18-19; Lee Dep. at 35:19- 23; Lesher Dep. at 79:3-4.) Following a verbal interaction with one or more of the officers, the defendant officers arrested plaintiff. (See SUF ¶ 2; Dumlao Dep. at 19:24-20:4, 20:24-21:7; Lesher Dep. at 80:16-81:25; Miley Dep. at 84:8-14.) Plaintiff was charged with resisting and delaying a peace officer. (SUF ¶ 3.) The prosecutor made the decision to prosecute plaintiff based on her review of the officers’ reports, a probable cause statement prepared by Lee, and her legal research. (Id. ¶ 4.) Plaintiff was acquitted following a trial. (Id. ¶ 6.) II. Federal Claims A. First Amendment Retaliation Plaintiff’s first claim alleges that defendants engaged in a retaliatory arrest in violation of her First Amendment rights. “The First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (cleaned up). To recover under § 1983 for First Amendment retaliation, a plaintiff must prove: “(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (quoting Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010)). Plaintiff’s retaliation claim fails because, under the evidence she relies upon, she “cannot show that retaliatory animus was a substantial factor behind h[er] arrest.” See Hill v. City of Fountain Valley, 70 F.4th 507, 519 (9th Cir. 2023). According to plaintiff, prior to her arrest she calmly asked, “Why are you doing this?” (See Lesher Dep. at 80:16-81:25; Lesher Decl. ¶ 4; Dumlao Dep. at 31:15-25, 55:20-56:9, 61:6-23, 64:20-25.) As the Ninth Circuit observed in Hill, “[i]t seems dubious that the officers would be upset” based on such a “benign statement[],” as “law enforcement officers are routinely subjected to much more vitriolic rhetoric.” See Hill, 70 F.4th at 519. Plaintiff offers no evidence suggesting her unremarkable question angered the officers or otherwise caused her arrest. To the contrary, the evidence indicates that plaintiff was facing the officer she spoke to and was then arrested by a different officer positioned behind her. (See Dumlao Dep. at 65:19-68:3; Lesher Dep. at 80:16-81:1; Lesher Decl. ¶ 4.) To permit the finding of a First Amendment violation from the bare fact that plaintiff was arrested after expressing verbal disagreement would open the door to allowing a First Amendment retaliation claim under § 1983 for every arrest in which there is a verbal conflict between officer and arrestee. The facts relied upon by plaintiff may more properly form the basis for her § 1983 claim under the Fourth Amendment’s prohibition against unreasonable seizures. This ruling does not affect plaintiff’s second claim brought under that amendment. Accordingly, the court will grant summary judgment in defendants’ favor on plaintiff’s first claim. B. Fourth Amendment Malicious Prosecution Plaintiff’s third claim alleges malicious prosecution and fabrication of evidence under the Fourth and Fourteenth Amendments. Defendants’ motion addresses only the malicious prosecution theory, which is appropriately brought under the Fourth Amendment. See Thompson v. Clark, 596 U.S. 36, 39 (2022). There is a presumption that a prosecutor “exercised independent judgment in determining that probable cause for an accused’s arrest exists,” thereby immunizing the investigating officers from liability premised on a prosecutor’s filing of a criminal complaint. Newman v. County of Orange, 457 F.3d 991, 993 (9th Cir. 2006). The plaintiff may overcome this presumption by presenting evidence that the officers “interfered with the prosecutor’s judgment in some way, by omitting relevant information, by including false information, or by pressuring the prosecutor to file charges.” Id. at 995. Defendants argue that plaintiff cannot overcome the presumption of independent judgment. There are substantial discrepancies between the parties’ accounts of what occurred during the incident in question. The officer defendants represent that plaintiff was intoxicated and slurring her words, shouted insults at the officers, and refused to comply with their commands, leading them to arrest her. (See Lee Dep. at 29:13-22, 30:19-21; Miley Dep. at 84:20-92:4, 92:13-25, 96:16; Miller Dep. at 24:11-25:7, 29:11- 23, 46:2-7.) Plaintiff and the witnesses proffered by plaintiff represent that she was not intoxicated or slurring her words, was not shouting or behaving belligerently prior to her arrest, complied with the officers’ commands to the extent commands were given, and was handcuffed and slammed into her vehicle without justification following plaintiff’s questioning of the officers’ actions, leaving a dent in the car and injuring plaintiff. (See Dumlao Dep. at 10:22-25, 16:13-17:23, 22:4-21, 23:23-24, 28:2-5, 31:15-19, 38:3-10, 52:25-53:3, 63:8-12; Leach Dep. at 76:12-21; Lesher Dep. at 87:15-89:17, 92:3-97:13, 107:14-108:6, 111:22-24; see also Lee Dep. at 55:10-20; Miley Dep. at 93:11-94:16, 118:5- 12.) Given the parties’ differing accounts of the events, there is a genuine dispute of material fact precluding summary judgment. A trier of fact could conclude that plaintiff’s account -- which is supported by eyewitness testimony -- is accurate and thus the police reports the prosecutor relied upon omitted relevant information or were false, which could overcome the presumption of independent judgment. See Newman, 457 F.3d at 994-95 (indicating a plaintiff can overcome the presumption of independent judgment using evidence that police reports “omitted critical information” so long as plaintiff offers more than her own testimony, for instance eyewitness testimony contradicting the reports). Accordingly, summary judgment on the third claim for malicious prosecution will be denied. III. State Claims A. Malicious Prosecution Plaintiff concedes that her sixth claim for malicious prosecution under California law is barred by California Government Code § 821.6. Accordingly, summary judgment in favor of defendants will be granted on plaintiff’s sixth claim. B. Due Process Plaintiff’s seventh claim alleges violation of due process under Article I § 13 of the California Constitution, which protects against unreasonable searches and seizures. The California Supreme Court has not decided whether there is a private cause of action for damages under this provision, nor have the California appellate courts or the Ninth Circuit considered the issue. See Temple v. Placer Cnty. Sheriff’s Off., No. 2:23-cv-01713 DAD CKD, 2024 WL 3742920, at *10 (E.D. Cal. Aug. 9, 2024). In order to determine whether a provision of the California Constitution establishes a private right of action, courts engage in the two-step analysis set forth by the California Supreme Court in Katzberg v. Regents of the University of California, 29 Cal. 4th 300, 317 (2002). The Katzberg analysis employs a two-step approach. First, the court must “inquire whether there is evidence from which we may find or infer, within the constitutional provision at issue, an affirmative intent either to authorize or to withhold a damages action to remedy a violation.” See id. In undertaking this inquiry, the court “shall consider the language and history of the constitutional provision at issue, including whether it contains guidelines, mechanisms, or procedures implying a monetary remedy, as well as any pertinent common law history.” Id. If the court finds any such intent, it shall give it effect. Id. Second, “if no affirmative intent either to authorize or to withhold a damages remedy is found, the court shall undertake the ‘constitutional tort’ analysis adopted in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and its progeny.” Id. “Among the relevant factors in this analysis are whether an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and significance of the constitutional provision.” Id. If the court finds that the factors militate against recognizing the constitutional tort, the inquiry ends. Id. If the factors favor recognizing a constitutional tort, the court shall also consider the existence of any special factors counseling hesitation in recognizing a damages action, including “deference to legislative judgment, avoidance of adverse policy consequences, considerations of government fiscal policy, practical issues of proof, and the competence of courts to assess particular types of damages.” Id. Defendants argued in their first motion to dismiss that there is no private right of action under section 13. The court declined to dismiss the claim under section 13 because defendants did not engage in the Katzberg analysis and therefore did not satisfy their burden. (Docket No. 19 at 14.) Here, defendants argue anew that there is no private right of action. As in their first motion to dismiss, defendants have again completely failed to apply the relevant law, instead stating in conclusory fashion that there is no private right of action under section 13. (See Docket Nos. 76 at 12, 87 at 11.) However, following the order on the first motion to dismiss in this case, the court addressed this precise issue in Estate of F.R. v. County of Yuba, No. 2:23-cv-00846 WBS CKD, 2023 WL 6130049 (E.D. Cal. Sept. 19, 2023). That decision concluded that there is no private right of action under section 13. Despite the inadequate briefing provided by the parties here, the court sees no reason to depart from its analysis in that case. As the court explained in Estate of F.R., “‘[s]ection 13 does not mention damages,’ and the court is not aware of ‘any drafting history, ballot materials, historical records, or common law decisions suggesting section 13 was adopted with an intent to make damages available.’” Id. at *6 (quoting Rios v. County of Sacramento, 562 F. Supp. 3d 999, 1022-23 (E.D. Cal. 2021) (Mueller, J.)) (collecting cases). Although some courts have recognized a cause of action under section 13 based on dicta in Katzberg explaining that English common law “‘provided a damage remedy for the victims of unlawful searches at common law,’” see, e.g., Brewster v. City of Los Angeles, No. 14-cv-2257 JGB SP, 2020 WL 5991621, at *15 (C.D. Cal. July 14, 2020) (quoting (quoting Katzberg, 29 Cal. 4th at 322), this general common law history is not “sufficient evidence of ‘affirmative intent’ to create a private cause of action, and therefore resort to the second step of the Katzberg analysis is appropriate.” See Est. of F.R., 2023 WL 6130049 at *6. The second step of the analysis -- which incorporates “Bivens and its progeny,” see Katzberg, 29 Cal. 4th at 314 -- is simplified by the Supreme Court’s decision in Egbert v. Boule, 596 U.S. 482 (2022). The Egbert court explained that given the tension between judicially created causes of action and the separation of powers under the Constitution, as well as Congress’ superior position to consider the policy implications of creating a cause of action, “[i]f there are sound reasons to think [the legislative branch] might doubt the efficacy or necessity of a damages remedy, the courts must refrain from creating it.” See id. at 490-91. “Even a single sound reason to defer to [the legislature] is enough to require a court to refrain from creating such a remedy,” and “if there is a rational reason to think that” the legislature should decide whether to provide for a damages remedy, “no Bivens action may lie.” Id. at 491-92. ee enn NEE ON OI I ED Oe

For instance, if the legislature “has provided alternative remedies for aggrieved parties in [the plaintiff’s] position,” a Bivens action is “foreclose[d].” See id. at 497. Here, there are “clear reasons to defer creation of a private cause of action under § 13 to the California Legislature. In particular, the Legislature has already undertaken to provide an alternative remedy for constitutional violations, including violations of § 13 -- specifically, the Tom Bane Civil Rights Act.” Est. of F.R., 2023 WL 6130049 at *6 (collecting cases). Accordingly, there is no private right of action under Article I $ 13 of the California Constitution and summary judgment in defendants’ favor will be granted on the seventh claim. IT IS THEREFORE ORDERED that defendants’ motion for partial summary judgment be, and the same hereby is, GRANTED IN PART as to the first claim for First Amendment retaliation; the sixth claim for malicious prosecution under California law; and the seventh claim for violation of due process under Article I § 13 of the California Constitution. The motion is DENIED as to the third claim for Fourth Amendment malicious prosecution. Dated: January 22, 2025 / td. . 4k. 2 59 UNITED STATES DISTRICT JUDGE