McGee v. Milpitas Police Department

• Court: District Court, N.D. California
• Decided: October 23, 2023
• Docket: 5:23-cv-02559
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 ANTHONY MCGEE, Case No. 23-cv-02559-VKD

9 Plaintiff, ORDER GRANTING DEFENDANTS’ 10 v. UNOPPOSED MOTION TO DISMISS

11 MILPITAS POLICE DEPARTMENT, et al., Re: Dkt. No. 30 Defendants. 12

13 14 Plaintiff Anthony McGee, who is representing himself, sues the City of Milpitas (“City”) 15 and the Milpitas Police Department (“MPD”) under 42 U.S.C. § 1983 for violations of his Fourth 16 Amendment rights.1 In a previous order screening Mr. McGee’s original complaint pursuant to 28 17 U.S.C. § 1915(e), the Court concluded that Mr. McGee failed to state a claim on which relief 18 could be granted and directed him to file an amended complaint. Dkt. No. 6. Mr. McGee filed an 19 amended complaint on May 30, 2023. Dkt. No. 7. The Court screened the amended complaint 20 and concluded that Mr. McGee could proceed with this action without prepayment of the filing 21 fee. See Dkt. No. 8. 22 Defendants now move to dismiss Mr. McGee’s amended complaint on several grounds. 23 See Dkt. No. 30. Mr. McGee did not file an opposition to defendants’ motion. 24 The Court finds this matter suitable for decision without oral argument. Dkt. No. 37; Civil 25

26 1 The amended complaint names only the City of Milpitas and the Milpitas Police Department as defendants. See Dkt. No. 7 at 1. All named parties have expressly consented that all proceedings 27 in this matter may be heard and finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); 1 L.R. 7-1(b). Upon consideration of the moving papers and the applicable law, the Court grants 2 defendant’s unopposed motion and dismisses Mr. McGee’s amended complaint without leave to 3 amend. 4 I. BACKGROUND 5 Unless otherwise indicated, the following allegations are drawn from Mr. McGee’s 6 amended complaint. 7 On March 6, 2023, Mr. McGee was cleaning his car at a gas station in Milpitas when he 8 noticed a police car nearby. Dkt. No. 7 ¶¶ 1-2. The police car pulled up behind Mr. McGee’s car 9 and an unnamed MPD officer stepped out of it. Id. ¶ 5. The officer approached Mr. McGee and 10 called his name, then asked him to confirm he was Anthony McGee and whether he was “on 11 searchable probation.” Id. ¶¶ 7-9. Mr. McGee denied that he was on probation but acknowledged 12 that he was on supervised release. Id. ¶¶ 10-12. Indeed, Mr. McGee was, and still is, on federal 13 supervised release after serving nearly ten years in federal custody for drug and firearm-related 14 offenses. See United States v. Anthony McGee, Case No. 12-cr-00052-EMC, Dkt. No. 235. 15 The officer then approached Mr. McGee’s car, from which Mr. McGee understood the 16 officer intended to search the car. Dkt. No. 7 ¶¶ 13-14. Mr. McGee stepped away from the car. 17 Id. ¶¶ 14-15. At this point, a second police officer arrived on the scene and began speaking with 18 the first officer. Id. ¶¶ 16-17. The first officer completed an inventory search of Mr. McGee’s car 19 and then motioned for Mr. McGee to approach. Id. ¶ 18. Mr. McGee complied. Id. ¶ 19. 20 The first officer then informed Mr. McGee that he was being placed under arrest for failing 21 to register as a sex offender. Id. ¶ 21. Mr. McGee told the officer that he was not a sex offender, 22 that he was on supervised release after serving a lengthy federal prison sentence, and that he was 23 “already going to court” to address the incorrect accusation that he was a sex offender who had 24 failed to register. Id. ¶¶ 22-23. The arresting officer responded that “information in his system” 25 showed that Mr. McGee was a sex offender and had “absconded for the last ten years.” Id. ¶ 23. 26 The officer advised Mr. McGee that if he disputed the information, he “was going to have to take 27 [it] up with the judge, or whoever was responsible for making those kinds of decisions.” Id. ¶ 26. 1 was booked for failure to register as a sex offender. Id. ¶¶ 27-28. Mr. McGee’s bail was set at 2 $25,000. Id. ¶ 31. Mr. McGee’s spouse posted his bail and he was released. Id. ¶ 32. 3 Following his release, Mr. McGee contacted the MPD to dispute the existence of any 4 requirement that he register as a sex offender and to demand “his monies back.” Id. ¶ 35. On May 5 12, 2023, Mr. McGee says he received a letter from the MPD stating that he “was not able to be 6 held criminally liable for any crime concerning the events in question on the day of March 06, 7 2023.” Id. ¶ 38. Mr. McGee does not include the letter with his amended complaint. However, 8 his original complaint attached a letter from the MPD dated May 8, 2023. See Dkt. No. 1-2. The 9 May 8 letter does not contain statements that precisely match Mr. McGee’s allegations, but the 10 letter’s signatory does “certify that the taking into custody of [Mr. McGee] on 03/06/2023 by the 11 Milpitas Police Department was a detention only, not an arrest” and cites California statutes 12 regarding the procedures that apply when an individual is arrested, but released from custody 13 without being charged with an offense. Id. (citing Cal. Pen. Code §§ 849, 849.5, 851.6). 14 After receiving the letter, Mr. McGee “drafted a contract” that he delivered to the Milpitas 15 City Hall, addressed to the City Attorney, in which he appears to have demanded that the City 16 adopt certain “stipulations” and pay him $250,000. Id. ¶¶ 40-42. 17 In his amended complaint, Mr. McGee contends that the arresting officer violated his 18 Fourth Amendment rights by arresting him without probable cause and searching him and his car 19 without reasonable suspicion or probable cause. Dkt. No. 7 ¶¶ 43-48. He claims that the Milpitas 20 City Attorney “condone[d] and support[ed]” the officer’s misconduct by “not adjudicating the 21 merits of [his] claim in [a] timely manner.” Id. ¶ 49. He asks for damages of $300 million, “on 22 account of the egregious violation of Mr. McGee’s rights against unlawful searches and seizures.” 23 Id. at 6. He also alleges that he has endured “emotional pain and suffering,” “permanent damage 24 to [his] public image,” and “economical ostracization,” presumably as a result of the allegation 25 that he is required to register as a sex offender. Id. 26 II. LEGAL STANDARD 27 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. 1 cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal 2 theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In such 3 a motion, all material allegations in the complaint must be taken as true and construed in the light 4 most favorable to the claimant. Id. 5 However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[f]actual 7 allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 555 (2007) (cleaned up). Moreover, the Court is not required to “assume 9 the truth of legal conclusions merely because they are cast in the form of factual allegations.” 10 Prager Univ. v. Google LLC, No. 17-CV-06064-LHK, 2018 WL 1471939, at *3 (N.D. Cal. Mar. 11 26, 2018) (quoting Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)). 12 Pro se pleadings are liberally construed and held to a less stringent standard than those 13 drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This is particularly true with 14 respect to the factual allegations in a pro se complaint. Chambers v. C. Herrera, 78 F.4th 1100, 15 1108 (9th Cir. 2023). “[A] district court should not dismiss a pro se complaint without leave to 16 amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by 17 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (cleaned up). 18 Documents appended to or incorporated into the complaint or which properly are the 19 subject of judicial notice may be considered along with the complaint when deciding a Rule 20 12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); Coto 21 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). A court may take judicial notice of 22 facts that are “not subject to reasonable dispute” because they are “generally known” or “can be 23 accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” 24 Fed. R. Evid. 201(b); see also Khoja, 899 F.3d at 999. Thus, a court properly may take judicial 25 notice of matters of public record, but cannot take judicial notice of disputed facts contained 26 within such records. Id. (citing Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). 27 1 III. DISCUSSION 2 Mr. McGee asserts a single claim under 42 U.S.C. § 1983 against the City and the MPD 3 for violation of his Fourth Amendment rights. Defendants move to dismiss Mr. McGee’s 4 complaint on several grounds. See Dkt. No. 30. They also ask the Court to take judicial notice of 5 documents filed in other litigation involving Mr. McGee. See Dkt. No. 31. 6 The Court first addresses defendants’ request for judicial notice, and then considers the 7 merits of defendants’ motion to dismiss. 8 A. Defendants’ Request for Judicial Notice 9 Defendants ask that the Court take judicial notice of several documents filed in prior 10 criminal and civil actions involving Mr. McGee. As those documents are matters of public record 11 that “can be accurately and readily determined from sources whose accuracy cannot reasonably be 12 questioned,” Fed. R. Evid. 201(b), the Court grants defendants’ request, but only as to those 13 documents that are necessary to the disposition of the present motion. Accordingly, the Court 14 takes judicial notice of the judgment and other documents in Mr. McGee’s federal criminal case, 15 United States v. Anthony McGee, Case No. 12-cr-00052-EMC, and the preliminary hearing 16 transcript in his Santa Clara County criminal case, People v. Anthony McGee, No. B2300636. The 17 Court does not take judicial notice of disputed facts included in these public records. Khoja, 899 18 F.3d at 999 (citing Lee, 250 F.3d at 689).2 19 B. 42 U.S.C. § 1983 – Alleged Violations of the Fourth Amendment 20 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or 21 immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. 22 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 23 substantive rights, but merely provides a method for vindicating federal rights elsewhere 24 conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989). A claim for civil rights violations 25 under § 1983 requires two essential elements: (1) that a right secured by the Constitution or laws 26

27 2 Concurrently with their request for judicial notice, defendants filed an administrative motion to 1 of the United States was violated, and (2) that the alleged violation was committed by a person 2 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 3 Defendants argue that Mr. McGee fails to state a claim against them under Monell v. 4 Department of Social Services, 436 U.S. 658 (1978), and that probable cause existed for Mr. 5 McGee’s arrest and for the search of his person and his vehicle. 6 1. Monell liability 7 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official 8 policy or custom causes a constitutional tort. Monell v. Dep’t of Soc. Servs. of the City of New 9 York, 436 U.S. 658, 690 (1978). However, a city or county may not be held vicariously liable for 10 the unconstitutional acts of its employees under the theory of respondeat superior. See Bd. of 11 Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. “Instead, it is when 12 execution of a government’s policy or custom, whether made by its lawmakers or by those whose 13 edicts or acts may fairly be said to represent official policy, inflicts the injury that the government 14 as an entity is responsible under § 1983.” Id. at 694. “The ‘official policy’ requirement was 15 intended to distinguish acts of the municipality from acts of employees of the municipality, and 16 thereby make clear that municipal liability is limited to action for which the municipality is 17 actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). 18 To impose municipal liability under § 1983 for a violation of constitutional rights, a 19 plaintiff must show that: (1) the plaintiff possessed a constitutional right of which he or she was 20 deprived; (2) the municipality had a policy; (3) this policy amounted to deliberate indifference to 21 the plaintiff’s constitutional rights; and (4) the policy was the moving force behind the 22 constitutional violation. See Plumeau v. School Dist. # 40 County of Yamhill, 130 F.3d 432, 438 23 (9th Cir.1997). Liability based on a municipal policy may be satisfied in one of three ways: (1) 24 by demonstrating that a municipal employee committed the alleged constitutional violation under 25 a formal governmental policy or longstanding practice or custom that is the customary operating 26 procedure of the local government entity; (2) by demonstrating that the individual who committed 27 the constitutional tort was an official with final policymaking authority and that the challenged 1 made from among various alternatives, or (3) by proving that an official with final policymaking 2 authority either delegated policymaking authority to a subordinate or ratified a subordinate’s 3 unconstitutional decision or action and the basis for it. Gillette v. Delmore, 979 F.2d 1342, 1346- 4 47 (9th Cir.1992). “In order to withstand a motion to dismiss for failure to state a claim, a Monell 5 claim must consist of more than mere formulaic recitations of the existence of unlawful policies, 6 customs, or habits.” Johnson v. City of San Jose, 591 F. Supp. 3d 649, 668 (N.D. Cal. 2022) 7 (cleaned up). 8 In its prior order screening the original complaint, the Court determined that Mr. McGee 9 failed to state a Monell claim for violation of his constitutional rights because he did not allege any 10 unlawful policy, practice, or custom. Dkt. No. 6 at 3. Defendants argue that Mr. McGee’s 11 amended complaint “has not remedied this deficiency.” Dkt. No. 30 at 6. 12 The Court agrees with defendants. Mr. McGee’s amended complaint includes additional 13 factual allegations about the actions of the arresting officer, but it does not allege that he acted in 14 accordance with an unlawful policy, practice, or custom of the City or the MPD. Mr. McGee does 15 allege that “[t]he City Attorney for [Milpitas] did in fact and law condone and support the decision 16 of the officer’s conduct that is the basis for this complaint, by not[] adjudicating the merits of Mr. 17 McGee’s claim in [a] timely manner.” Dkt. No. 7 ¶ 49. The Court construes this allegation as an 18 attempt to plead a ratification theory of Monell liability. While a single decision by a municipal 19 final policymaker may be sufficient to trigger liability under Monell, such liability attaches only 20 where “a deliberate choice to follow a course of action is made from among various alternatives 21 by the official or officials responsible for establishing final policy with respect to the subject 22 matter in question.” Pembaur, 475 U.S. at 483. The mere fact that the City Attorney did not 23 accede to Mr. McGee’s pre-litigation demands is insufficient to show that he or she acted as a 24 “final policymaker” who ratified the arresting officer’s allegedly unconstitutional conduct. 25 Nothing in the record suggests that Mr. McGee’s Monell claim could be cured by the 26 allegation of additional facts on amendment, and he has not opposed defendants’ motion to 27 dismiss on this ground. Accordingly, the Court dismisses Mr. McGee’s § 1983 claim against the 1 2. Underlying Fourth Amendment Violations 2 In both his original and amended complaints, Mr. McGee named only municipal entities as 3 defendants, although he described the arresting officer’s conduct as unconstitutional. See Dkt. 4 Nos. 1, 7. In view of Mr. McGee’s pro se status, the Court considers whether he should be 5 permitted to further amend his complaint to assert a claim against the arresting officer or whether 6 any such amendment would be futile. 7 Mr. McGee alleges that the arresting officer violated his Fourth Amendment rights by 8 unlawfully searching and seizing his person and his car and by arresting him without probable 9 cause. Dkt. No. 7 ¶¶ 43-48. Defendants argue that the allegations of the amended complaint, 10 together with other judicially noticeable facts, show that probable cause existed for Mr. McGee’s 11 arrest and that the searches of his person and his car were not unconstitutional.3 12 a. Unreasonable search 13 Mr. McGee alleges that the arresting officer violated his Fourth Amendment rights by 14 “illegally procur[ing] cause for reasonable suspicion to conduct a criminal background check” and 15 that the searches of his person and his car were unreasonable and violated his Fourth Amendment 16 rights. Id ¶¶ 43-45. These allegations cannot support a claim against the officer. 17 First, police officers do not require reasonable suspicion or other cause to conduct a 18 records check. Indeed, the opposite is true—officers may conduct a criminal or traffic records 19 search to establish reasonable suspicion for a stop or for further investigation. See Kansas v. 20 Glover, 140 S. Ct. 1183, 1188 (2020) (holding that officer had reasonable suspicion to perform 21 traffic stop when records check showed that the registered owner of vehicle had a revoked driver’s 22 license). 23 Second, as Mr. McGee acknowledges, at the time of search he was on federal supervised 24 release, which is “a form of searchable probation or another form of community supervision.” 25

26 3 Defendants also argue that Mr. McGee fails to allege a favorable termination of his criminal case, as required by Heck v. Humphrey, 512 U.S. 477 (1994), and that the arresting officer (who is 27 not named and has not appeared) is protected by qualified immunity. See Dkt. No. 30 at 6-15. 1 Dkt. No. 7 ¶¶ 12-13. The judgment in Mr. McGee’s federal criminal case, of which the Court 2 takes judicial notice, confirms that Mr. McGee was required to submit to a search of his person 3 and his car as a condition of his supervised release. See United States v. Anthony McGee, Case 4 No. 12-cr-00052-EMC, Dkt. No. 136 at 4 (“The defendant shall submit his person, property, place 5 of residence, vehicle, or any property under his control to a search. Such searches shall be 6 conducted by a United States Probation Officer or any federal, state, or local law enforcement 7 officer at any time, with or without any suspicion.”). 8 While supervised releasees have a “diminished expectation of privacy,” the fact that Mr. 9 McGee was on supervised release with a search condition does mean that all searches necessarily 10 pass constitutional muster. United States v. Kriesel, 720 F.3d 1137, 1141 (9th Cir. 2013). Rather, 11 a court must consider “the degree to which the search intrudes upon [Mr. McGee’s] privacy” 12 against “the degree to which it is needed for the promotion of legitimate governmental interests.” 13 United States v. King, 736 F.3d 805, 808 (9th Cir. 2013). As noted above, Mr. McGee was 14 convicted of serious federal firearm-related offenses, and he does not contend that law 15 enforcement has no legitimate interest in conducting searches of his person or vehicle. See United 16 States v. Anthony McGee, Case No. 12-cr-00052-EMC, Dkt. No. 136 at 1 (listing convictions for 17 18 U.S.C. §§ 922(g), 924(c); 21 U.S.C. § 841(a)(1)). More importantly, the search here was not 18 suspicionless or conducted merely to harass Mr. McGee. See King, 736 F.3d at 810. Instead, the 19 amended complaint alleges that the arresting officer conducted a search of Mr. McGee and his car 20 only after consulting his “system” and learning that Mr. McGee was in violation of a requirement 21 to register as a sex offender. See Dkt. No. 7 ¶¶ 7-23. 22 In these circumstances, Mr. McGee cannot state a viable claim that the officer’s searches 23 were unconstitutional. 24 b. Unreasonable seizure 25 Mr. McGee alleges that the arresting officer also violated his Fourth Amendment rights by 26 arresting him without probable cause. Dkt. No. 7 ¶¶ 43-48. This allegation fails as well. 27 To prevail on a § 1983 claim for false arrest, a plaintiff must show that there was no 1 1998. “An officer has probable cause to make a warrantless arrest when the facts and 2 circumstances within his knowledge are sufficient for a reasonably prudent person to believe that 3 the suspect has committed a crime.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 4 2011). “Effective and efficient law enforcement requires cooperation and division of labor to 5 function. For that reason, law enforcement officers are generally entitled to rely on information 6 obtained from fellow law enforcement officers.” Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 7 2005), overruled on other grounds. 8 The amended complaint alleges that the officer arrested Mr. McGee because “the 9 information in his system stated that Mr. McGee was absconded [from his sex offender 10 registration requirements] for the previous ten years.” Dkt. No. 7 ¶ 23. Failing to register as a sex 11 offender is a crime. See Cal. Pen. Code § 290.018. While Mr. McGee disputes that he qualifies as 12 a sex offender or that he is required to register as such, he does not dispute that the officer arrested 13 him based on records reflecting Mr. McGee was subject to such a requirement and had not 14 complied with it. In these circumstances, there can be no dispute that it was reasonable for the 15 arresting officer to believe that Mr. McGee had committed the crime of failing to register as a sex 16 offender. See, e.g., Hadsell v. Sickon, No. 08-cv-1101-MO, 2009 WL 1362597, at *4 (D. Or. May 17 12, 2009) (probable cause justified arrest when officer obtained information from law enforcement 18 databases indicating plaintiff had failed to timely register as sex offender). 19 Because probable cause is apparent from the existing allegations in the amended 20 complaint, Mr. McGee cannot state a claim against the arresting officer for arresting him without 21 probable cause. 22 IV. CONCLUSION 23 For the foregoing reasons, the Court dismisses Mr. McGee’s Fourth Amendment claim 24 against the City and the MPD for failure to state a claim. “Such a dismissal, especially for a pro se 25 plaintiff, would normally be without prejudice.” Chambers, 78 F.4th at 1107. However, in this 26 case, Mr. McGee has not opposed the motion and it is “absolutely clear” from the allegations in 27 the amended complaint that granting leave to amend would be futile. Id. 1 amended complaint with prejudice. The Clerk of Court is directed to close this file. 2 IT IS SO ORDERED. 3 Dated: October 23, 2023 4 5 VIRGINIA K. DEMARCHI 6 United States Magistrate Judge 7 8 9 10 11 12

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