1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT L. PARKER, Case No.: 20cv661-LL-JLB
12 Plaintiff, AMENDED ORDER GRANTING 13 v. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 VINCE DEQUITO; JONATHAN BECERRA; and CARRIE HOGAN, 15 [ECF No. 30] Defendants. 16 17 18 Plaintiff Robert L. Parker (“Plaintiff” or “Parker”), proceeding pro se, brought this 19 civil rights action against Sergeant Vince Dequito, Detective Jonathan Becerra, and Officer 20 Carrie Hogan (“Defendants” or “the officers”), who are all current or former members of 21 the San Diego State University Police Department (“SDSUPD”). The Court previously 22 granted Defendants’ Motion for Summary Judgment, [ECF No. 47], after which Plaintiff 23 filed a Motion to Alter or Amend the Court’s ruling, [ECF No. 49]. As a result of that 24 motion, and to correct errors in the Court’s previous order, including the spelling of one of 25 the Defendant’s names, this Amended Order supersedes and replaces the Court’s previous 26 order at ECF No. 47. For the reasons stated herein, Defendants’ Motion for Summary 27 Judgment [ECF No. 30] is again GRANTED. 28 1 I. BACKGROUND 2 A. Plaintiff’s Account 3 According to Plaintiff, on March 4, 2019, at approximately 7:00 p.m., he began 4 exercising in the San Diego State University Aztec Recreation Center gym (“the gym”). 5 Compl. ¶ 11. Around 7:30 p.m., he began using a treadmill and noticed a small towel in 6 the cup holder. Id. ¶ 13. Shortly after he started using the treadmill, an unknown adult male 7 “challenged” him by “stating that the white towel marked the treadmill as reserved for the 8 exclusive use of [the other man].” Id. ¶ 14. The gym has a policy forbidding the 9 “reservation” of certain exercise equipment in such a manner. Id. ¶ 15. Plaintiff ignored 10 the man and continued exercising on the treadmill. Id. The man became “incensed and 11 irrational,” yelled, turned off the treadmill, and removed Plaintiff’s headphones. Id. ¶ 16. 12 Plaintiff turned to face the man, who then “verbally berated” him. Id. Gym staff arrived, 13 and Plaintiff departed the gym and remained outside for about 15 minutes, then returned 14 “peacefully” to continue his workout. Id. ¶ 17. 15 Upon continuing his workout, Plaintiff intentionally attracted the attention of a gym 16 employee “intending to display peaceful intentions and that all was well.” Id. ¶ 18. The 17 staff member spoke quickly to another staff member, who went to a phone on the wall. Id. 18 ¶ 19. Plaintiff “believed that the incident had been misinterpreted, suspected that the police 19 would be summoned again,1 and that [he] would be falsely accused.” Id. Plaintiff departed 20 the gym again, but was met near the gym exit by Officer Hogan. Id. ¶¶ 19-20. Plaintiff said, 21 “I’m recording you.” Id. ¶ 20. After two minutes, Detective Becerra and Sergeant Dequito 22 arrived. Id. Officer Hogan said, “he’s refusing to talk to me.” Id. After a “contentious” two 23 minutes in which Plaintiff “lawfully asserted his right to remain silent and lawfully refused 24 to give his name,” Sergeant Dequito said “[i]f you’re gonna play this fifth amendment 25 game, we’re not gonna know.” Id. Sergeant Dequito threatened to arrest Plaintiff and 26
27 1 As discussed below, the police previously responded to the gym, but Plaintiff left before 28 1 charge him with violating Cal. Pen. Code § 148(a) if he didn’t provide his name. Id. 2 Plaintiff complied, stating, “my name is Robert Parker. I am a member here.” Id. ¶ 22. 3 Detective Becerra “continued to berate” Plaintiff and “raised his pointing finger in an 4 escalating action and advanced toward” Plaintiff. Id. Plaintiff “feared physical harm and 5 reacted emotionally.” Id. Becerra and Dequito laughed and “continued to badger” him. 6 Sergeant Dequito threatened him by stating “did he not give his name? Then arrest him.”2 7 Id. Detective Becerra also threatened Plaintiff with revoking his gym membership. Id. 8 Sergeant Dequito stated, “one more time dude. Just one more time dude and you’re under 9 arrest.” Id. Plaintiff spelled out his last name loudly and slowly. Id. Officer Hogan said, “I 10 don’t have a victim.” Id. Detective Becerra then asked Plaintiff for his date of birth, to 11 which Plaintiff responded, “am I required to give you my date of birth?” Id. Sergeant 12 Dequito said “yes” and then arrested him. Id. 13 Plaintiff was handcuffed and his phone was taken away, but it was still recording. 14 Id. About six minutes into the encounter, Officer Hogan said “you didn’t need to escalate 15 this.” Id. ¶ 24. Officer Hogan subsequently stated in her police report that she arrested 16 Plaintiff after attempting to investigate for about 20 minutes. Id. ¶ 25. Thirty minutes after 17 being arrested, Plaintiff was unhandcuffed and cited for violating Cal. Pen. Code § 18 148(a)(1). Id. ¶ 34. Sergeant Dequito said, “this dude he’s like drunk or something.” Id. ¶ 19 35. Another officer said, “he doesn’t even know what he’s saying,” and also said she 20 smelled alcohol and accused Plaintiff of being drunk. Id. Detective Becerra threatened that 21 he was going to follow Plaintiff to his car and arrest him when he got in. Id. Plaintiff was 22 released 35 minutes after the initial encounter and 29 minutes after being arrested. Id. ¶ 37. 23 Plaintiff alleges that while Detective Becerra was in the gym “following up,” he searched 24 Plaintiff’s belongings, and failed to return a padlock and $80 in cash. Id. ¶ 36. 25 26 27 28 2 1 In support of his opposition to the instant motion, Plaintiff provided the Court and 2 Defendants with the audio recording taken with his phone (“the audio recording”) which 3 apparently captures most, if not all, of his verbal exchanges with the officers even if some 4 are unintelligible.3 ECF No. 34. 5 B. Defendants’ Account 6 On March 4, 2019, the SDSUPD received two calls for police assistance from the 7 gym. Detective Becerra responded to the first call reporting an “altercation” between two 8 gym members, but when he arrived, staff reported that both parties had left, so he cleared 9 the call and left. ECF No. 30-1 at 9 ¶ 2. Officer Hogan responded to the second call, which 10 was in response to a “panic alarm” activated by gym staff. Id. at 5 ¶ 2. According to Officer 11 Hogan, she was advised by dispatch the alarm was related to the early call regarding the 12 “altercation.” Id. One of the gym employees, identified as “TL,” reported that Plaintiff 13 returned, and when she attempted to ask Plaintiff questions about the altercation, Plaintiff 14 “asked her to go outside.” Id. The employees said to Officer Hogan, “it had been reported 15 that the two members had hit each other.” Id. at 5 ¶ 3. Officer Hogan states: 16 Before I could speak further with TL, Parker arrived with a cell phone in his hand, said he was recording me, and asked what I wanted to talk about. I told 17 him I was also recording and was investigating a reported fight. Parker said 18 he was asserting his Fifth Amendment right not to speak. I asked Parker what was going on. Parker became angry, argumentative, and agitated. He again 19 stated he asserted his Fifth Amendment right, asked if I knew what that meant, 20 and said it meant that I could no longer question him. I advised Parker that I could question him because he was not under arrest and was being detained. 21 He again asserted his Fifth Amendment right. 22 I told Parker to stand by while we waited for my partner to arrive. Parker 23 asserted that he was not being detained and started to leave. I repeated that he 24 was being detained. Parker then took an aggressive step toward me, leaned over me, and asked why he was being detained. I estimated Parker’s height at 25 6’ 2” and his weight at approximately 200 pounds. My build is 5’ 7” and 140 26
27 3 As noted below, the audio recording is part of the record in the instant motion. See ECF 28 1 pounds. I instructed Parker to back up. He did and again asked why he was being detained. I told him I was conducting an investigation. Parker again 2 stepped toward me in an aggressive manner and I again ordered him to back 3 away. Based on my training and experience, I felt that Parker was taking a fighting stance with me and I felt physically threatened by his body language 4 and behavior. 5 Parker asked again why he was being detained. I told him I was investigating 6 a reported fight and he responded that there was no fight. I told him that is what I was investigating. Parker then turned his phone toward TL and asked 7 if she saw a fight or if there was a fight, or words to that effect. She said she 8 was told by multiple people that there had been a fight. Parker again asserted his Fifth Amendment claim and asked if he was being detained. He then 9 questioned me about whether I believed he had committed a crime. I advised 10 him I was investigating.
11 Parker started to leave a second time and said he was going to leave unless I 12 told him he was being detained. I repeated that he was being detained. Officer Becerra arrived. I filled him in and asked that he stand by with Parker while I 13 investigated. Sergeant Dequito arrived with Officer Becerra. Parker remained 14 angry, argumentative, and agitated throughout our exchange.
15 Id. at 5-6 ¶¶ 3-6. 16 According to Detective Becerra, when he arrived for the second time, he was advised 17 that “one of the parties to the altercation had returned (later identified as Parker) and asked 18 92106[a gym] employee to go outside, which the employee interpreted as a threat and 19 caused her to activate the panic alarm.” ECF No. 30-1 at 9 ¶ 3. Plaintiff said he had asserted 20 his Fifth Amendment rights. Id. “Officer Hogan reported that she detained Parker, was 21 trying to figure out what was going on, that Parker was not cooperating, and asked that I 22 stand by with Parker while she continued to investigate.” Id. Detective Becerra twice asked 23 Plaintiff for identification, but he asserted his right to remain silent. Id. ¶ 4. Detective 24 Becerra states: 25 I informed Parker that we received word there was a disturbance with another individual that became physical and that assault charges could be involved. I 26 asked him if he thought that was sufficient reason for detention or arrest. 27 Parker’s response was “except there wasn’t any.” I told Parker that is what we were investigating. I again asked for identification. 28 1 Id. ¶ 5. Detective Becerra pointed his finger at Plaintiff, and Plaintiff “became hysterical 2 and screamed not to ‘push him.’” Id. at 10 ¶ 6. Plaintiff provided his name but “balked” at 3 providing his birth date. Id. Detective Becerra states, “[b]ased on my interaction with 4 Parker and my training and experience, I concluded that Parker would not meaningfully 5 cooperate and was instead delaying and obstructing our investigation.” Id. 6 According to Sergeant Dequito, the supervisor on the scene, he arrived at the same 7 time as Officer Becerra. Id. at 12 ¶ 2. In addition to repeating much of Officer Becerra’s 8 account, Sergeant Dequito states: 9 Parker and Officer Becerra engaged in a discussion about producing 10 identification and the basis for his detention. Parker was not cooperative. He repeatedly invoked his Fifth Amendment rights while at the same time 11 offering self-serving pieces of information, such as denying that there was an 12 assault committed during the altercation and that another member caused a disturbance. I referred to Parker’s invocation of the Fifth Amendment as a 13 “game” due to the fact that Parker made this reference repeatedly. I was 14 referring to the fact that the Fifth Amendment generally does not apply to detentions and Parker was inappropriately using the right to delay and obstruct 15 the investigation. At one point Parker became hysterical and screamed at 16 Officer Becerra.
17 Id. ¶ 4. 18 While Dequito and Becerra were with Plaintiff, Officer Hogan returned to the gym 19 employee who said that “witnesses reported that [a gym member] and Parker got into an 20 argument over use of a treadmill and that the argument led to an exchange of [a] physical 21 fight,” but the employee did not personally witness the fight. Id. at 6 ¶ 7. The employee 22 also said that “she activated the panic alarm because Parker had returned (having left after 23 the altercation) and asked her to go outside when she tried to question him about the 24 incident” and that “this was unsafe.” Id. Officer Hogan also states that “[a]n eyewitness 25 said that Parker slapped [the other gym member] after he pushed Parker,” but the witness 26 refused to identify herself. Id. Officer Hogan was unable to reach the other gym member 27 by phone, and the dispatcher advised her that the other gym member had not made a report. 28 Id. 1 Officer Hogan then “advised Sergeant Dequito that [she] did not have a victim of a 2 crime so would document a violation of Cal. Penal Code § 415 (disturbing the peace) and 3 release Parker.” Id. at 7 ¶ 8. According to Officer Hogan, “Parker was escorted outside 4 where he was held in handcuffs until the arrest paperwork was completed and Officer 5 Becerra retrieved Parker’s personal belongings from his locker.” Id. at 7 ¶ 9. According to 6 Detective Becerra, “Parker was placed in handcuffs and escorted outside, where he stayed 7 until the cite-and-release paperwork was completed and his personal belongings were 8 retrieved from ARC.” Id. at 10 ¶ 7. According to Sergeant Dequito, “[t]he arrest was 9 because of the totality of circumstances, including the nature of the call for police 10 assistance (possible assault) and his uncooperative, aggressive, and belligerent conduct 11 toward Officers Hogan and Becerra, which delayed and obstructed the officers’ efforts to 12 perform their duty to investigate the incident.” Id. at 12-13 ¶ 5. Plaintiff was cited for 13 violating Cal. Penal Code § 148(a)(l) (resisting, delaying, or obstructing a police 14 investigation) and released. Id. at 7 ¶ 9. He was also advised to stay off campus for seven 15 days pursuant to Cal. Penal Code § 626.6. Id. 16 C. Procedural History 17 On April 6, 2020, Plaintiff filed his Complaint against the SDSUPD, the Police 18 Chief, and four individual officers. On June 23, 2020, the parties agreed to dismiss the 19 SDSUPD, the Police Chief, and one of the individual officers, and to dismiss three of the 20 claims. ECF Nos. 5, 7. The above Defendants filed an Answer. ECF No. 6. On September 21 25, 2020, the case was transferred to Judge Robinson. ECF No. 16. On May 17, 2021, 22 Defendants filed the instant motion. ECF No. 30. On October 6, 2021, Plaintiff filed his 23 opposition. ECF No. 32. On January 4, 2022, the case was transferred from Judge Robinson 24 to the below signed district judge. ECF No. 41. On January 19, 2022, Defendants submitted 25 their reply brief. ECF No. 43. Defendants also submitted responses to Plaintiff’s objections. 26 ECF Nos. 31, 44. 27 28 1 II. LEGAL STANDARD 2 Where a moving party shows “there is no genuine dispute as to any material fact and 3 the movant is entitled to judgment as a matter of law,” the court must grant summary 4 judgment. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 5 (1986). A fact is material if it could affect the outcome of the case under governing law. 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is 7 genuine if the evidence, viewed in the light most favorable to the non-moving party, “is 8 such that a reasonable jury could return a verdict for the non-moving party.” Id. 9 The moving party may make this showing by identifying those portions of the 10 pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of 11 material fact. Celotex, 477 U.S. at 323. If a moving party carries its burden of showing the 12 absence of evidence as to an essential element of the opposing party’s case (e.g., a genuine 13 issue of material fact), “the burden then shifts to the non-moving party to designate specific 14 facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 15 627 F.3d 376, 387 (9th Cir. 2010). “This burden is not a light one.” Oracle, 627 F.3d at 16 387. The party opposing the motion for summary judgment “must show more than the mere 17 existence of a scintilla of evidence” by coming forward “with evidence from which a jury 18 could reasonably render a verdict in the non-moving party’s favor.” Id. The nonmoving 19 party must go beyond the pleadings and designate facts showing a genuine issue for trial. 20 Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324). 21 It can do this by citing to specific parts of the materials in the record or by showing that 22 the materials cited by the moving party do not compel a judgment in the moving party’s 23 favor. Fed. R. Civ. P. 56(c). 24 “In judging evidence at the summary judgment stage, the court does not make 25 credibility determinations or weigh conflicting evidence,” Soremekun v. Thrifty Payless, 26 Inc., 509 F.3d 978, 984 (9th Cir. 2007), and will draw inferences from the facts in the light 27 most favorable to the nonmoving party, see Earl v. Nielsen Media Research, Inc., 658 F.3d 28 1108, 1112 (9th Cir. 2011); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 1 475 U.S. 574, 587 (1986). However, the nonmoving party’s mere allegation that factual 2 disputes exist between the parties will not defeat an otherwise properly supported motion 3 seeking summary judgment. See Fed. R. Civ. P. 56(c); see also Soremekun, 509 F.3d at 4 984 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to 5 raise genuine issues of fact and defeat summary judgment”). Further, if the factual context 6 makes the nonmoving party’s claim as to the existence of a material issue of fact 7 implausible, that party must come forward with more persuasive evidence to support his 8 claim than would otherwise be necessary. Matsushita, 475 U.S. at 587. 9 III. DISCUSSION 10 A. Evidentiary Objections 11 As an initial matter, both parties make evidentiary objections with respect to the 12 instant motion. As noted above, on October 7, 2021, Plaintiff filed an ex parte application 13 for, inter alia, leave to file an audio recording in support of his opposition. ECF No. 34 at 14 3. Construing the request as one to file the audio recording non-electronically, Judge 15 Robinson allowed the Defendants to file objections, to which Plaintiff responded, [see ECF 16 Nos. 36, 37], after which Judge Robinson granted Plaintiff’s request, [ECF No. 39]. On 17 December 13, 2021, Plaintiff submitted the audio recording to the Court on a thumb drive. 18 ECF No. 40. Defendants have not subsequently objected to the consideration of the audio 19 recording in deciding the instant motion, and do not dispute they were provided a copy. 20 Moreover, Defendants twice cite Plaintiff’s transcription of the audio recording in support 21 of their own reply, [see ECF No. at 7-8 (citing “Arrest Audo Tr.”)], and argue in their 22 opposition to Plaintiff’s objections that Plaintiff’s own recording is “relevant” and not 23 precluded by the best evidence rule. See ECF No. 44 at 2. To the extent Defendants’ 24 objections were not already overruled by Judge Robinson in his previous order, they are 25 OVERRULED as waived, or alternatively, because the audio recording could be 26 authenticated at trial. 27 In his opposition, Plaintiff also makes numerous objections. See ECF No. 32. First, 28 Plaintiff objects under Rule 401 to “the usage of the sound of Parker’s voice (as opposed 1 to the words themselves) as evidence of the sound experienced by Defendants[.]” Id. at 4 2 ¶ 1. The objection is OVERRULED as moot because the tone and volume of Plaintiff’s 3 voice in the recording is not a factor in the Court’s decision on the instant motion. Plaintiff 4 also objects on the ground that the body worn camera video is the best evidence under Rule 5 1002. The objection is OVERRULED because the audio recording it is not being offered 6 to prove the content of some other recording. Second, Plaintiff objects to his deposition 7 testimony being considered because the procedural rules were not followed “indicating 8 possible improper training/certification of reporter.” Id. ¶ 2. The objection is 9 OVERRULED because Plaintiff does not indicate how any procedural rules were violated, 10 and if so, why consideration of his testimony would be improper in deciding the instant 11 motion. Third, Plaintiff objects to references in Defendants’ materials to gym employee’s 12 statements on hearsay grounds. Id. ¶ 3. The objection is OVERRULED because the 13 statements are being offered to prove the effect on the listener, not the truth of the matter 14 asserted in the statements. Plaintiff’s objections to references to statements by the 15 dispatcher, id. ¶ 5, are OVERRULED for the same reason. Finally, Plaintiff’s remaining 16 objections, most if not all of which relate to Defendants’ purported expert report regarding 17 the existence of probable cause, are OVERRULED as moot because the expert report is 18 not a factor in the Court’s decision on the instant motion. 19 B. Section 1983 Claims 20 Plaintiff brings claims under 42 U.S.C. § 1983 and the Fourth Amendment for 21 unlawful detention, arrest without probable cause, and false imprisonment. Section 1983 22 provides that any person who, under the color of state law, deprives any citizen of 23 constitutional or statutory rights “shall be liable to the party injured in an action at law.” 24 The statute “‘is not itself a source of substantive rights,’ but merely provides ‘a method for 25 vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 26 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3 (1979)). 27 “Qualified immunity protects government officials from liability for civil damages 28 unless their conduct violates ‘clearly established statutory or constitutional rights of which 1 a reasonable person would have known.’” Horton v. City of Santa Maria, 915 F.3d 592, 2 599 (9th Cir. 2019) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In cases where 3 the defense of qualified immunity is raised, the plaintiff must show that “(1) the official 4 violated a statutory or constitutional right, and (2) that the right was clearly established at 5 the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “These 6 inquiries are questions of law.” Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) 7 (citation omitted). “The judges of the district courts and the courts of appeals [are] 8 permitted to exercise their sound discretion in deciding which of the two prongs of the 9 qualified immunity analysis should be addressed first in light of the circumstances in the 10 particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). 11 “A clearly established right is one that is sufficiently clear that every reasonable 12 official would have understood that what he is doing violates that right.” Mullenix v. Luna, 13 136 S. Ct. 305, 308 (2015) (quotations omitted). The inquiry requires courts to determine 14 if “the violative nature of particular conduct is clearly established,” id. at 742, and therefore 15 “must be undertaken in light of the specific context of the case, not as a broad general 16 proposition,” Saucier v. Katz, 533 U.S. 194, 201 (2001). “Clearly established law” does 17 not require “a case directly on point, but existing precedent must have placed the statutory 18 or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741. 19 Plaintiff alleges Defendants violated his Fourth Amendment rights by detaining and 20 arresting him. Compl. ¶¶ 44, 52. In order to prove Defendants deprived him of his right to 21 be free from unreasonable seizures, Plaintiff must show: (1) he was seized; (2) the officers 22 seized him intentionally; and (3) the seizure was unreasonable. Brower v. County of Inyo, 23 489 U.S. 593, 596 (1989). The parties dispute whether Plaintiff’s detention and arrest were 24 reasonable.4 25 26
27 4 Defendants do not dispute they were acting under color of state law, or that Plaintiff was 28 1 1. Unlawful Detention 2 “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, 3 investigatory stop when the officer has a reasonable, articulable suspicion that criminal 4 activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 5 U.S. 1, 30 (1968)). Whether reasonable suspicion exists depends on “the ‘totality of the 6 circumstances’ of each case to see whether the detaining officer has a ‘particularized and 7 objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 8 273-74 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). 9 “Reasonable suspicion, like probable cause, is dependent upon both the content of 10 information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 11 325, 330 (1990). “While reasonable suspicion is a less demanding standard than probable 12 cause and requires a showing considerably less than preponderance of the evidence, the 13 Fourth Amendment requires at least a minimal level of objective justification for making 14 the stop.” Wardlow, 528 U.S. at 124 (internal quotation marks omitted). 15 In his Complaint, Plaintiff alleges (1) there was no reasonable suspicion for his 16 detention, and (2) he was detained past the point when Defendants determined there was 17 no reasonable suspicion. Compl. ¶¶ 44-49. Defendants argue “[t]hey had reasonable 18 suspicion that Parker committed a crime in the cardio room, disturbed the peace, and/or 19 threatened TL based on the nature of [the gym’s] first call to the police (physical 20 altercation), [the gym’s] panic alarm, and TL’s identification of Parker as an aggressor.” 21 ECF No. 30 at 20. 22 Here, Plaintiff does not genuinely dispute that: (1) some form of altercation occurred 23 between Plaintiff and another gym patron regarding the use of a treadmill; (2) the 24 altercation resulted in a call to the police, but Plaintiff left the gym, and Detective Becerra 25 could not locate him; (3) after Becerra left, Plaintiff returned to the gym and communicated 26 in some way with gym staff, after which the staff triggered the “panic” alarm; and (4) the 27 dispatcher told Officer Hogan the alarm was related to the earlier altercation. Plaintiff also 28 does not dispute, and the audio recording confirms, that after Officer Hogan arrived, 1 Plaintiff approached her and said “I finished my workout. I’m recording you. What do you 2 want to talk about?” Officer Hogan responded, “I’m trying to figure out what’s going on. 3 I was called here because there was a fight,” to which Plaintiff responded, “I’m asserting 4 my Fifth Amendment rights to not speak.” 5 These facts constitute reasonable grounds for 5 Officer Hogan to detain Plaintiff on the suspicion that criminal activity was afoot and 6 Plaintiff was involved, whether it be fighting, disturbing the peace, or behaving in a 7 threatening manner. 8 As noted above, Plaintiff argues the information given to Officer Hogan was 9 hearsay. ECF No. 32 at 4. However, reasonable suspicion can be, and often is, based on 10 hearsay. See Raiser v. Selnick, No. ED CV 15-00310 RGK (RAO), 2017 WL 2271566, at 11 *1 (C.D. Cal. May 23, 2017) (rejecting the plaintiff’s argument that evidence supporting 12 reasonable suspicion was hearsay where the officer was aware of at least one prior call and 13 information relayed by a dispatcher); United States v. King, No. C 10-00455 WHA, 2011 14 WL 9315, at *5 (N.D. Cal. Jan. 3, 2011) (“[A]s probable cause may be found based on 15 hearsay from informants, reasonable suspicion may be found based on hearsay as well.”). 16 While Plaintiff denies being in a physical altercation and threatening gym staff and 17 Officer Hogan, these facts are not material to whether Officer Hogan’s detention was 18 reasonable. There is also no indication that Plaintiff was detained longer than necessary 19 given that until shortly before his arrest he refused to provide his name or answer any 20 questions . See Vanegas v. City of Pasadena, No. 2:20-cv-07845-SVW-AGR, 2021 WL 21 1917126, at *4 (C.D. Cal. Apr. 13, 2021) (finding that a demand for identification did not 22
23 5 As pointed out by Defendants, Plaintiff does not have a right to anticipatorily invoke 24 Miranda rights outside of custodial interrogation. See McNeil v. Wisconsin, 501 U.S. 171, 25 182 n.3 (1991) (“We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’[.]”). Moreover, a Miranda 26 violation would only preclude Plaintiff’s statements from being used against him at trial. 27 Chavez v. Martinez, 538 U.S. 760, 767-70 (2003). It would not serve as the basis for a § 1983 claim. Chavez v. Robinson, 12 F.4th 978, 989 (9th Cir. 2021). Regardless, in his 28 1 unreasonably prolong the detention because the “[p]laintiff’s identity had to be ascertained 2 in order to determine whether [p]laintiff was the subject of the 911 call”). 3 Based on the above, Defendants have shown that Plaintiff cannot show a lack of 4 reasonable suspicion for the detention or the length of the detention in violation of 5 Plaintiff’s constitutional rights. Defendants are therefore entitled to qualified immunity on 6 Plaintiff’s unlawful detention claim. See Ioane v. Hodges, 939 F.3d 945, 950 (9th Cir. 7 2018) (“If there is no constitutional violation, the inquiry ends and the officer is entitled to 8 qualified immunity.”) (citation omitted). Also, as discussed below, Plaintiff makes no 9 attempt at showing that even if there was a constitutional violation, that the right at issue 10 was clearly established. 11 2. Unlawful Arrest 12 Defendants also argue they are entitled to summary judgment on Plaintiff’s unlawful 13 arrest claim because Plaintiff cannot show a lack of probable cause. ECF No. 30 at 21. “An 14 arrest must be supported by probable cause to believe that the person being arrested has 15 committed a crime.” Hernandez v. Skinner, 969 F.3d 930, 938 (9th Cir. 2020) (citations 16 omitted). Probable cause “must be based on ‘reasonably trustworthy information sufficient 17 to warrant a prudent person in believing that the accused has committed or was committing 18 an offense.’” Id. (citations omitted). “The police need not know, however, precisely what 19 offense has been committed.” United States v. Price, 980 F.3d 1211, 1225 (9th Cir. 2020). 20 The parties do not dispute that Plaintiff was arrested for violating Cal. Penal Code § 21 148(a)(1). An arrest for violating § 148(a)(1) requires probable cause to believe: “(1) the 22 defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer 23 was engaged in the performance of his or her duties, and (3) the defendant knew or 24 reasonably should have known that the other person was a peace officer engaged in the 25 performance of his or her duties.” In re Muhammed C., 95 Cal. App. 4th 1325, 1329 (2002). 26 The statute is not limited to flight or forcible interference with an officer’s activities. Id. at 27 1329-30 (citing People v. Quiroga, 16 Cal. App. 4th 961 (1993)). The parties dispute 28 whether Defendants had probable cause that Plaintiff resisted, delayed, or obstructed the 1 officers. 2 In support of their probable cause argument, Defendants point to multiple material 3 facts. However, all of these facts are genuinely disputed. First, Defendants claim that 4 Plaintiff “twice advanced on one of the officers, one time leaning over her, and both times 5 not backing away until ordered to do so.” ECF No. 30 at 11. As noted above, in her 6 declaration, Officer Hogan states that after telling Plaintiff he was being detained, he “then 7 took an aggressive step toward me, leaned over me, and asked why he was being detained,” 8 and after being told to back up, he “again stepped toward me in an aggressive manner and 9 I again ordered him to back away.” ECF No. 30-1 at 5-6 ¶¶ 3-4. 10 In his opposition, however, Plaintiff claims that he was attempting to distance 11 himself from Officer Hogan, and that it was Officer Hogan who “closed the distance” 12 between them. ECF No. 32 at 10 ¶ 13. Plaintiff further states that “[h]e rejects as untrue 13 Hogan’s statements ‘Parker then took an aggressive step toward me, leaned over me’ and 14 ‘Parker again stepped toward me in an aggressive manner.’ Parker did not do any of those 15 things. Parker was not aggressive, and Parker did not present as a threat. . . . Parker did not 16 lean over Hogan.” Id. ¶¶ 15, 17. Although the audio recording confirms that Officer Hogan 17 said “stop,” “back it up,” and “back up,” these commands do not necessarily confirm, as a 18 matter of law, that Plaintiff took aggressive steps toward Officer Hogan or leaned over her. 19 When viewed in the light most favorable to Plaintiff, Officer Hogan could have been 20 ordering Plaintiff not to leave. 21 Second, and relatedly, Defendants argue that Plaintiff “twice started to leave the 22 detention.” ECF No. 30 at 10. Plaintiff does not dispute that he initially attempted to leave, 23 but claims he “understood that he was free to leave” because Officer Hogan made a hand 24 motion towards the exit as he approached her. ECF No. 32 at 8 ¶ 3. Plaintiff also claims he 25 26
27 6 The parties do not dispute that Defendants were performing their duties or that Plaintiff 28 1 did not initially hear being told that he was detained. Id. at 9 ¶ 9. Again, the audio recording 2 does not necessarily contradict Plaintiff’s account so that no reasonable jury could believe 3 him. The audio recording also supports the fact that after being told a second time he was 4 being detained, Plaintiff did not attempt to leave. 5 Third, Defendants argue that Plaintiff “interrogated the [gym employee] who had 6 activated the panic alarm before the police could complete their interview of her[.]” ECF 7 No. 30 at 10. Defendants claim that “Officer Hogan had just started speaking with TL when 8 Parker pointed his cell phone at TL and ask if she personally witnessed the altercation. The 9 purpose clearly was to intimidate TL and preempt Officer Hogan’s interview.” Id. at 24. 10 However, the audio recording does not necessarily support Defendants’ suggestion that 11 Plaintiff initially approached the employee in order to intimidate her and preempt Officer 12 Hogan’s interview. Rather, the audio recording more closely supports Plaintiff’s account 13 that he initiated the interaction by stating “I finished my workout. I’m recording you. What 14 do you want to talk about?” Defendants do not dispute that it was Officer Hogan who then 15 replied, “I’m trying to figure out what’s going on. I was called here because there was a 16 fight.” See ECF No. 43 at 7:17-18. 17 Officer Hogan’s declaration also does not support Defendants’ argument that 18 Plaintiff pointed his cell phone at the employee for the purpose of intimidating her. In her 19 declaration, Officer Hogan states “I began to speak with TL. She told me it had been 20 reported that the two members had hit each other. Before I could speak further with TL, 21
22 23 7 Plaintiff supports these statements with an unsigned declaration. ECF No. 33. Plaintiff does, however, submit a verified Complaint which repeats most, if not all, of the material 24 factual arguments in Plaintiff’s opposition. See Compl. at 20. Plaintiff also previously 25 submitted signed declarations in support of other arguments. See ECF No. 34. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, 26 must be held to less stringent standards than formal pleadings drafted by lawyers.” 27 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). Accordingly, the Court will not rely on Plaintiff’s failure to sign this particular declaration 28 1 [Plaintiff] arrived with a cell phone in his hand, said he was recording me, and asked what 2 I wanted to talk about.”8 ECF No. 30-1 ¶ 3 (emphasis added). 3 Plaintiff does not dispute that while he was subsequently detained he asked the 4 employee “did you think there was a fight” to which she responded, “I was told by multiple 5 people there was.” Id. at 11-12 ¶ 24. Plaintiff admits to then asking the employee again if 6 there was a fight, to which she allegedly just shrugged. Id. However, the audio recording 7 suggests that at the time Plaintiff asked the employee these two questions, Officer Hogan 8 was attempting to interview Plaintiff, not the employee. It is also not clear why asking these 9 two questions interfered with the officers’ investigation.9 Plaintiff claims he was twelve 10 feet away from the employee and they were separated by a service counter. Id. ¶¶ 24-25. 11 Fourth, Defendants argue that Plaintiff delayed and obstructed their investigation 12 because he “refused to answer questions while at the same time peppering the officers with 13 questions about the investigation.” ECF No. 30 at 10. Defendants concede, however, that 14 Plaintiff was free to refuse to answer questions, and was not directed to refrain from asking 15 questions. 16 Finally, Defendants argue that “Parker was agitated throughout the encounter, and 17 was often aggressive and belligerent.” ECF No. 30 at 10. While Defendants argue that “a 18 detainee’s failure to identify him or herself may, if combined with belligerent conduct, 19 support a violation of § 148,” [ECF No. 30 at 23], Defendants cite no case supporting this 20 21 22 8 Noticeably, in their reply, Defendants apparently abandon their argument that Plaintiff 23 approached the employee while she was being interviewed in order to intimidate the witness and preempt Officer Hogan’s interview. Instead, Defendants argue that Plaintiff 24 merely “interrupted” Officer Hogan’s interview. ECF No. 43 at 4. In contrast, Plaintiff 25 claims that “Hogan was looking in Parker’s direction and not talking to anybody as Parker approached Hogan, and Parker did not even see [TL].” ECF No. 32 at 8. The audio 26 recording does not indicate what Officer Hogan was doing when Plaintiff approached her. 27 9 It is also not clear why the “nature” of a call about a possible fight at a gym supports 28 1 argument. Instead, Defendants cite People v. Lopez, 119 Cal. App. 4th 132 (2004), in 2 which the court found it was lawful to arrest the defendant for violating § 148 because, 3 while lawfully detained, he was “belligerent,” refused to give his name, refused to keep his 4 hands visible, did not comply with an order to sit down, refused to submit to a pat down, 5 and cursed at the arresting officer. Here, the audio recording confirms that Plaintiff 6 eventually provided his name, complied with the officers’ orders not to leave, and clearly 7 stated “I will not get physical with you.”11 8 Based on the above, Defendants have not shown the absence of a genuine dispute of 9 material fact supporting probable cause for Plaintiff’s arrest under § 148(a)(1). Moreover, 10 resolution of most of these material factual issues – including whether Plaintiff took an 11 “aggressive step,” tried to leave, or interfered with Officer Hogan’s witness interview – 12 clearly require credibility determinations. See Soremekun, 509 F.3d at 984. Accordingly, 13 Defendants are not entitled to summary judgment as to whether the arrest violated 14 Plaintiff’s constitutional rights. 15 3. Qualified Immunity 16 Defendants argue that regardless of any constitutional violation they are entitled to 17 qualified immunity on all of Plaintiff’s § 1983 claims because Plaintiff has not shown that 18 any right at issue was clearly established. ECF No. 30 at 28. As noted above, “[s]tate 19
20 21 10 Defendants also provide no support that their “many years of training and experience” and their “police practices expert” report are significant factors supporting the 22 reasonableness of the detention or arrest. ECF No. 30 at 20-21. 23 11 It may be that refusal to produce identification during a lawful investigative detention 24 gave the officers probable cause to arrest Plaintiff for violating § 148(a)(1). See, e.g., 25 Vanegas, 2021 WL 1917126, at *4. Certainly, by refusing to initially give his name and answer questions, Plaintiff “delayed” the investigation. Here, however, Defendants 26 specifically deny arresting Plaintiff based solely on the refusal to give his name, [see ECF 27 No. 30 at 23], and Defendants cite no case besides Lopez in which a refusal to identify oneself constitutes probable cause for arrest if combined with other factors. Moreover, as 28 1 officials have qualified immunity from civil liability under § 1983 ‘insofar as their conduct 2 does not violate clearly established statutory or constitutional rights of which a reasonable 3 person would have known.’” Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005) 4 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Where the defense of qualified 5 immunity is raised, the plaintiff must show that the right was clearly established at the time 6 of the challenged conduct. Ashcroft, 563 U.S. at 735. “If the plaintiff fails to carry his 7 burden at any step, qualified immunity should be granted to the defendant.” Clairmont v. 8 Sound Mental Health, 632 F.3d 1091, 1103 (9th Cir. 2011). 9 Plaintiff devotes his opposition to denying that it is his burden to show that the right 10 at issue was clearly established.12 ECF No. 32 at 41-43. Plaintiff states he “has no 11 obligation to identify any law beyond Martinelli [v. City of Beaumont, 820 F.2d 1491 (9th 12 Cir. 1987)], which makes clear that an arrest for failure to identify is an unlawful seizure 13 under the Fourth Amendment.” Id. at 43. However, in Martinelli the officers arrested the 14 plaintiff under § 148(a)(1) solely for failing to identify herself after a lawful Terry stop. 15 820 F.2d at 1492. As discussed above, the officers here specifically deny doing so. See 16 Tatum v. City and County of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006) 17 (distinguishing Martinelli because “the only possible basis for probable cause [for the 18 arrest in Martinelli] was the defendant’s refusal to produce identification”). While the other 19 reasons for arresting Plaintiff are not strong enough to show, as a matter of law, that the 20 officers had probable cause, they are not so weak that they show that Plaintiff’s initial 21 refusal to identify himself was the only possible basis for arresting him under § 148(a)(1). 22 23 24 25 12 Plaintiff argues “Defendants present no reason for arrest to which Parker may respond 26 with clearly established legal precedent. Defendants’ strategy here is improper. Defendants 27 are asking Parker ‘Tell us what law would have shown us not to arrest you,’ while Parker is waiting for an answer to ‘First, tell me why you arrested me.’” ECF No. 32 at 42. 28 1 Moreover, it is not clear that Martinelli actually held that police may never arrest 2 persons under § 148(a)(1) for refusing to identify themselves.13 See Hiibel v. Sixth Jud. 3 Dist. Ct. of Nev., 542 U.S. 177, 186-87 (2004) (“Although it is well established that an 4 officer may ask a suspect to identify himself in the course of a Terry stop, it has been an 5 open question whether the suspect can be arrested and prosecuted for refusal to answer.”); 6 United States v. Landeros, 913 F.3d 862, 869 (9th Cir. 2019) (“In some circumstances, a 7 suspect may be required to respond to an officer’s request to identify herself, and may be 8 arrested if she does not.”); Vanegas, 2021 WL 1917126, at *5 (finding the plaintiff’s 9 “refusal to produce his identification during a lawful investigative detention gave officers 10 probable cause to arrest him for violating Cal. Pen. Code § 148(a)(1)”).14 11 Accordingly, even if Plaintiff had shown he was arrested for refusing to initially 12 identify himself, Plaintiff has not met his burden of showing that right was clearly 13 established at the time of his arrest. Defendants are therefore entitled to qualified immunity 14 against Plaintiff’s unlawful arrest claim under § 1983. See Stacker v. Johnson, No. 2:16- 15 cv-2913-GHW, 2019 WL 4991740, at *5 (E.D. Cal. Oct. 8, 2019) (accepting qualified 16 immunity defense based on pro se plaintiffs’ “wholesale failure to carry their burden of 17 identifying clearly established law”); see also Ashcroft, 563 U.S. at 742 (“The general 18 proposition . . . . that an unreasonable search or seizure violates the Fourth Amendment is 19 of little help in determining whether the violative nature of particular conduct is clearly 20 established.”); Bias, 508 F.3d at1219 (“A district court lacks the power to act as a party’s 21 lawyer, even for pro se litigants.”). 22 23
24 25 13 Martinelli held that a criminal defendant arrested solely for refusing to identify herself after a lawful Terry stop was prejudiced by a jury instruction that “Section 148 was 26 constitutional as applied.” 820 F.2d at 1494. 27 14 The Vanegas case is currently pending appeal. See Vanegas v. City of Pasadena, No. 28 1 4. False Imprisonment 2 Plaintiff also brings a claim for false imprisonment under § 1983. Compl. at 12. 3 Plaintiff alleges “Defendants unlawfully detained Plaintiff for an unreasonable period of 4 time after they knew or should have known that he had committed no crimes.” Id. ¶ 60. 5 Defendants argue that Plaintiff cannot bring a false imprisonment claim under § 1983 under 6 Baker, in which the Court held “Section 1983 imposes liability for violations of rights 7 protected by the Constitution, not for violations of duties of care arising out of tort law.” 8 443 U.S. at 146. 9 In his opposition, Plaintiff does not dispute that his claim for false imprisonment 10 under § 1983 is dependent on his claims for unlawful arrest and detention.15 ECF No. 32 11 at 41. “A claim for wrongful detention (false imprisonment) absent a cognizable claim for 12 wrongful arrest will not ordinarily state an independent claim under Section 1983.” 13 Williams v. City of Oakland, No. 17-cv-05238-YGR, 2018 WL 3972323, at *3 n.8 (N.D. 14 Cal. Aug. 20, 2018) (citing Baker, 443 U.S. at 142-45). As discussed above, Plaintiff does 15 not bring a cognizable claim for unlawful detention or arrest, including whether he was 16 detained or arrested for an unnecessarily long period. Defendants have identified facts that 17 Plaintiff was detained no longer than necessary to determine his identity and gather basic 18 facts, and was not arrested any longer than necessary to cite him for violating § 148(a)(1). 19 Other than those facts upon which Plaintiff relies to support his unlawful detention and 20 arrest claims, Plaintiff has not identified any facts to the contrary. Accordingly, Defendants 21 are entitled to summary judgment on Plaintiff’s false imprisonment claim under § 1983. 22 C. Injunctive Relief 23 Plaintiff also brings a claim for injunctive relief with respect to SDSUPD’s alleged 24 “misapplication” of Cal. Penal Code § 626.6, which prohibits a person who has been 25 directed to leave a school campus from returning within seven days. Compl. ¶ 113; ECF 26
27 15 In Plaintiff’s Motion to Alter or Amend, he also does not dispute the dismissal of his 28 1 No. 32 at 45. The parties agree that after Plaintiff’s initial arrest he was arrested again, this 2 time under § 626.6. ECF No. 30 at 31-32. Plaintiff alleges he was arrested under § 626.6 3 “in retaliation for his victory against SDSUPD in this false arrest case and for the filing of 4 Internal Affairs complaints against officers.” Compl. ¶ 113. Plaintiff also apparently seeks 5 an injunction preventing “unlawful harassment against himself or other citizens.” Id. ¶ 114. 6 Defendants argue they are entitled to summary judgment as to Plaintiff’s claim for 7 injunctive relief because he cannot show a likelihood of success as to the merits of his 8 claim, and because of the Younger doctrine. ECF No. 43 at 10. 9 “An injunction properly issues only where the right to be protected is clear, injury is 10 impending and so immediately likely as only to be avoided by issuance of the injunction.” 11 E. Bay Mun. Util. Dist. v. Dept. of Forestry & Fire Prot., 43 Cal. App. 4th 1113, 1126 12 (1996). Furthermore, “[a] complaint for an injunction which alleges only general 13 conclusions, not warranted by any pleading of facts, does not state a cause of action to 14 enjoin the acts complained of.” E.H. Renzel Co. v. Warehousemen’s Union, 16 Cal. 2d 369, 15 373 (1940); see also Benn v. Allstate Ins. Co., No. 5:21cv1584 JFW SPX, 2021 WL 16 5049101, at *4 (C.D. Cal. Oct. 29, 2021) (dismissing claim for injunctive relief where 17 plaintiff failed to allege with specificity any ongoing conduct). 18 Here, the issue of Plaintiff’s arrest under § 626.6 is not properly before the Court. 19 Moreover, even when interpreted liberally, Plaintiff’s request does not provide specific 20 terms in reasonable detail, such as the duration, ongoing conduct, or the acts to be 21 restrained. See Fed. R. Civ. P. 65(d)(1). Requesting the court to enjoin “unlawful 22 harassment” or the “misapplication” of the law is insufficient. See Albers v. Paul Revere 23 Ins. Grp., No. 20-cv-08674 NC, 2021 WL 6622294, at *5 (N.D. Cal. Dec. 23, 2021) 24 (declining to enjoin “unfair, unlawful, or deceptive business practices”). Additionally, 25 granting Plaintiff’s request would appear to interfere with state court proceedings. See 26 Younger v. Harris, 401 U.S. 37, 46 (1971) (noting “fundamental policy against federal 27 interference with state criminal prosecutions”). Finally, Plaintiff has not shown, or 28 attempted to show, irreparable harm or the likelihood of success on the merits. See Fed. R. 1 Civ. P. 65; Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). Accordingly, to the 2 extent the claim is even before the Court, Defendants are entitled to summary judgment on 3 Plaintiff’s claim for injunctive relief. 4 5. State Law Claims 5 Plaintiff also brings state law claims for violation of the Bane Act, Cal. Civ. Code § 6 52.1, as well as for negligence. However, a district court may decline to exercise 7 supplemental jurisdiction if it has dismissed all claims over which it has original 8 jurisdiction. Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citing 28 9 U.S.C. § 1367(c)(3)). “[I]n the usual case in which all federal-law claims are eliminated 10 before trial, the balance of factors to be considered under the pendent jurisdiction doctrine 11 – judicial economy, convenience, fairness, and comity – will point toward declining to 12 exercise jurisdiction over the remaining state-law claims.” Id. (citation and internal 13 quotation marks omitted). Because Defendants are entitled to summary judgment on all of 14 Plaintiff’s federal claims, the Court, in its discretion, declines to address Plaintiff’s 15 remaining state law claims. 16 F. Plaintiff’s Request to Reopen Discovery 17 In his opposition, Plaintiff argues the Court should reopen discovery. ECF No. 32 at 18 46. “District courts have wide latitude in controlling discovery, and their rulings will not 19 be overturned in the absence of a clear abuse of discretion.” United States v. Kitsap 20 Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). Courts “may entertain a motion 21 to reopen discovery or may order discovery pursuant to Federal Rule of Civil Procedure 22 26(b).” Betz v. Trainer Wortham & Co., 610 F.3d 1169, 1171 (9th Cir. 2010); see also Fed. 23 R. Civ. P. 26(b)(2)(C)(ii) (vesting courts with the ability to “limit the frequency or extent 24 of discovery” if they find that “the party seeking discovery has had ample opportunity to 25 obtain the information by discovery in the action”). “[A] district court should continue a 26 summary judgment motion upon a good faith showing by affidavit that the continuance is 27 needed to obtain facts essential to preclude summary judgment.” Cal. ex rel. Cal. Dep’t of 28 Toxic Subs. Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The party seeking the 1 additional discovery “must show (1) that they have set forth in affidavit form the specific 2 facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) 3 that these sought-after facts are ‘essential’ to resist the summary judgment motion.” Id. 4 Here, the scheduling order required all discovery to be completed by March 5, 2021. 5 ECF No. 13 at 1, ¶ 2. In support of his request, Plaintiff states “there was a short path to 6 termination of this litigation: Hogan’s body worn camera (BWC), detailing her 7 conversation with [TL]. Parker should now be given access to that BWC video.” ECF No. 8 32 at 46. The only apparent explanation Plaintiff gives for suspecting this BWC footage 9 exists is Defendants’ alleged failure to turn over another officer’s BWC video that was 10 mentioned in Defendants’ expert report. Id. As pointed out by Defendants, however, 11 Plaintiff was provided access to the expert before the discovery deadline closed. Moreover, 12 during his deposition testimony, Plaintiff clearly indicated that he believed BWC video 13 existed, [see ECF No. 30-1 at 21:21-22:5], but he does not now explain why he did not 14 request it, or request it in its entirety. 15 Additionally, Plaintiff has not, and did not, file a noticed motion to modify the 16 scheduling order, and has not attempted to show his diligence in seeking potentially 17 relevant evidence, which in an unlawful arrest case would certainly include all BWC video. 18 See Campbell, 138 F.3d at 779 (“References in memoranda and declarations to a need for 19 discovery do not qualify as motions under Rule 56[d].”); see also Kitsap, 314 F.3d at 1000 20 (finding the district court did not err by failing to grant additional discovery in response to 21 defendants’ motion for summary judgment when he “never made a Rule 56(f) motion, 22 much less before the district court issued its summary judgment ruling”).16 23 24 25 16 Plaintiff also argues that while Officer Lamaku testified he was not inside the gym on 26 the night in question, Plaintiff “now sees and recalls that Lamaku was inside, and that 27 Lamaku had a great view of Becerra’s toe-to-toe challenge of Parker.” ECF No. 32 at 47. Again, however, Plaintiff does not explain why this justifies additional discovery at this 28 1 IV. CONCLUSION 2 For the above reasons, Defendants’ Motion for Summary Judgment [ECF No. 30] is 3 || GRANTED. Plaintiff’s claims are DISMISSED. Plaintiff’s Motion to Alter or Amend the 4 Court’s Rules [ECF No. 49] is GRANTED as consistent with this Amended Order. This 5 || Amended Order supersedes and replaces the Court’s previous order at ECF No. 47 granting 6 || Defendants’ Motion for Summary Judgment. The Clerk of Court shall close the case. 7 IT IS SO ORDERED. 8 ||Dated: June 10, 2022 NO 9 DE 10 Honorable Linda Lopez United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28