1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BYRON WILLIS, Case No. 1:21-cv-01077-CDB
12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 v. (Doc. 54) 14 CITY OF BAKERSFIELD, et al., ORDER GRANTING PLAINTIFF’S 15 Defendants. MOTION FOR LEAVE NUNC PRO TUNC TO FILE UNTIMELY OPPOSITION 16 BRIEF
17 (Doc. 63)
18 ORDER GRANTING IN PART PLAINTIFF’S REQUEST TO SEAL 19 DOCUMENTS
20 (Doc. 62)
21 22 This is a civil rights lawsuit by Plaintiff Byron Willis (“Plaintiff” or “Willis”) against 23 Defendants the City of Bakersfield (“the City”) and Detective Santos Luevano (“Luevano”) that 24 arises from Plaintiff’s arrest by law enforcement officers. Defendants removed this case from 25 Kern County Superior Court on July 12, 2021. (Doc. 1). Following the Court’s order on 26 Defendants’ motion to dismiss (Doc. 10), Plaintiff filed the operative Second Amended 27 Complaint (“SAC”) on July 18, 2022. (Doc. 37). Thereafter, on August 9, 2023, Defendants filed a joint motion for summary judgment now before the Court. (Doc. 54). Plaintiff filed an 1 untimely opposition on September 6, 2023, (Doc. 61) and Defendants filed a reply on September 2 20, 2023. (Doc. 67). The parties have consented to the jurisdiction of a United States Magistrate 3 Judge for all proceedings, including trial and entry of judgment, pursuant to 28 U.S.C. § 4 636(c)(1). (Doc. 47). For the reasons set forth below, Defendants’ motion for summary 5 judgment will be granted. 6 I. Background 7 On December 3, 2019, at around 11:10 a.m. to 11:19 a.m., an unidentified male physically 8 attacked a woman (“M.M.”) in an apartment complex located at 5413 Ming Avenue, Bakersfield. 9 (Doc. 61-5, Plaintiff’s Statement of Disputed and Undisputed Facts (“PSDUF”) ⁋1). M.M. told a 10 police officer that her attacker had a distinct foul odor and bloodshot eyes. Id. ⁋2. She described 11 her attacker as a black male between the ages of 25 and 30 with a dark complexion. Id. ⁋3. 12 According to M.M., the attacker’s height was around 5’4’’ to 5’6’’, his weight around 150 to 160 13 pounds, and he had a slim build. Id. The attacker wore a black hooded zippered sweatshirt, dark 14 gray socks, shorts, and was a possible transient. Id. 15 M.M. was transported to the Bakersfield Police Department (“BPD”). Detective Luevano 16 directed Lisa Wedeking-White1 to assist M.M. with the completion of a composite sketch of her 17 attacker. Id. ⁋4. M.M. confirmed with the police that the composite sketch looked like the man 18 that attacked her. (Doc. 56 ⁋4).2 She attested after the fact that her confirmation was made 19 without any influence or suggestion by anyone. Id. Once M.M. approved the composite sketch, 20 it was released to the media for the purpose of seeking assistance in identifying the suspect 21 22 1 Defendant Wedeking-White was dismissed from this action and was not named as a defendant 23 afterwards in Plaintiff’s operative complaint. See (Doc. 19).
24 2 Plaintiff disputes this fact on the grounds that M.M.’s confirmation was not memorialized 25 contemporaneously in a police record (Doc. 61-5 ⁋4) although it is indisputable that Detective Luevano’s probable cause affidavit of December 4, 2019, documented that M.M. “assisted in a 26 composite sketch of the suspect which was released to the media.” (Doc 61-3 p. 58 [Ex. 6]). Plaintiff raises similar objections to Defendants’ identification of other undisputed facts based on 27 a lack of contemporaneous documentation. E.g., (Doc. 61-5 ⁋5). Unless specifically referenced herein, the Court finds the lack of contemporaneous documentation standing alone does not create 1 responsible for the attempted rape. (Doc. 54-5 p. 10; Doc 61-3 p. 53 [Ex. 1] & p. 58 [Ex. 6]).3 2 On December 4, 2019, at approximately 6:00 a.m., Detective Luevano received 3 information from Melanie Formhals (“Formhals”). Formhals told Detective Luevano that she had 4 seen the press release and that she believed the subject depicted in that sketch to be Byron Willis. 5 (Doc. 54-5 p. 12). Formhals explained that she is the apartment complex manager of the Mirage 6 Apartments and that Willis, who used to reside there, along with his father, would sexually harass 7 other female tenants in the complex before Willis was removed from the complex in or about 8 2018. Id. at 12, 55-56. Formhals told Detective Luevano that when she saw the composite sketch 9 on the news, she immediately believed that the composite sketch resembled Willis. Id.4 10 At around noon on the same day, Detective Luevano received a call from Kristen Rinehart 11 (“Rinehart”). Id. at 61-62. Rinehart told Luevano that she thought the composite sketch she saw 12 on the news strongly resembled Willis, who frequented the Mirage Apartments in 2018. Id. 13 According to Rinehart, about one year prior, her 14-year-old daughter came home crying because 14 a man asked her for sex. The man reportedly told Rinehart’s daughter that he would be gentle 15 with her because she was a virgin. Id. Rinehart and her daughter walked outside, and Rinehart’s 16 daughter pointed at Willis as the person who sexually harassed her. According to Rinehart, Willis 17 admitted to sexually harassing her daughter, but he thought that she was nineteen years old. Id. at 18 62. Rinehart warned Willis that if he ever sexually harassed her daughter again, she would “cut 19 off his balls.” Id. 20 On December 4, 2019, M.M. met with Bakersfield police officers again and was shown a 21 six-pack photographic lineup which included a photograph of Willis that Willis estimates had 22 been taken anywhere between three months and three years earlier. (Doc. 54-5 p. 13-14; Doc. 56 23 ⁋5; Doc. 61-2 ⁋8). M.M. pointed to Plaintiff’s picture among the six-pack and stated that she was 24 25 3 The Court uses herein pagination assigned in a filing’s CM/ECF banner. 26 4 The Court notes that Formhals’ report to the police that she believed the subject depicted in the 27 sketch to be Willis was made the day after the incident; her attestation that she “immediately” believed the subject was Willis is offered in a declaration dated February 23, 2023, filed in 1 “not sure” but selected the picture “because of the eyes.” (Doc. 56 ⁋5).5 After signing the form, 2 M.M. was asked to circle her selection and place her initials next to the circle. Detective Luevano 3 believed that he had probable cause to arrest Willis after his interview of Formhals and after 4 M.M. identified Willis from the photo array as her attacker. (Doc. 61-3 pp. 21-22). 5 After M.M. selected Willis’ photo from the array, Detective Luevano authorized issuance 6 of an updated press release identifying the suspect as Byron Willis and requesting information 7 concerning Willis’ whereabouts. (Doc. 61-3 p. 40; Exhibit A, attached hereto). The updated 8 press release listed Willis’ height as 5 feet 9 inches, and his weight as 203 pounds, which was 9 information Detective Luevano obtained from Willis’ arrest record. (Doc. 61-3 p. 57; Exhibit A, 10 attached hereto). The updated press release included the original press release from the day prior, 11 which listed the suspect’s height as between 5 feet 4 inches and 5 feet 6 inches, and his weight as 12 between 150 and 160 pounds. Id. 13 On December 4, 2019, at around 7:15 p.m., BPD officers located Willis at 1901 S. Real 14 Road where he was arrested for attempted rape with force and false imprisonment. (Doc. 61-3 p. 15 27). Willis was escorted to the special victims unit interview room at around 8:30 p.m. Id. 16 According to Detective Luevano, Willis exhibited an extremely foul body odor, and the whites of 17 his eyes were extremely bloodshot, which was consistent with M.M.’s description of her 18 assailant. (Doc. 54-5 p. 18). 19 Willis denied attacking M.M. or attempting to sexually assault her. (“Declaration of 20 Byron Deon Willis” Doc. 61-2 ⁋14). Willis also insisted that BPD check his cell phone’s Google 21 tracking information, which he said would show where he was on the day of the attempted rape. 22 Id. ⁋19. Willis told Detective Luevano that on the day of the attempted rape he was in Delano 23 and that his Google account tracking information would corroborate his statement. Id. ⁋⁋18-19. 24 Willis agreed to have BPD download the contents of his Google account tracking information to 25 show his whereabouts at the time of the attempted rape. Id. ⁋19. Willis also consented to giving a 26 DNA sample. Id. ⁋17. Detective Luevano asked Willis if he would consent to a lie detector test,
27 5 Based on an audio recording of law enforcement officers’ meeting with M.M., M.M. spent approximately 30 seconds reviewing the photo array before identifying photograph #2 (Willis). 1 and Willis emphatically agreed. Willis was confident that there would be no fingerprints or traces 2 of his DNA inside the residence where the victim reportedly was attacked. Id. ⁋17-19. 3 During the interview, Willis told Detective Luevano that although he did not remember 4 specific details, his cell phone tracking data would show where he was because he carried his 5 phone with him at all times. Id. Willis stated that on the day of the attempted rape, he left from 6 701 Planz Road with his girlfriend Moenisha Hill (“Hill”) between 8:30 a.m. and 9:30 a.m. in 7 Hill’s white Kia. Willis first drove to the residence of an acquaintance named “Angel,” and about 8 five minutes afterwards, to a gas station at 415 Roberts Lane to meet with another friend for about 9 five minutes. (Exhibit B, attached hereto). Afterwards, Willis drove. Willis then drove to Delano 10 sometime between 10:30 a.m. and 11:00 a.m. to meet with Hill’s family. Id. After visiting Hill’s 11 family, Willis and Hill went to eat at “Mi Nayarit Restaurant” in Delano, where they remained 12 until 1:30 p.m. Willis returned to Kendrick Elementary School in Bakersfield at around 2:40 p.m. 13 to pick up Hill’s daughter. Id. 14 During the interview, Detective Keith Schlecht, who has training and experience in 15 cellphone forensics, examined Willis’ Google account tracking history and noticed that Willis’ 16 tracking history had a gap of missing time coinciding with the time of the attempted rape, which 17 in turn suggested that Willis’ Google account tracking history may have been manipulated to 18 create an alibi. Id. 19 Detective Luevano submitted an affidavit of probable cause on December 4, 2019, at 20 11:50 p.m. (Doc. 54-5 p. 71; Doc. 61-3 p. 58 [Ex. 6]). The affidavit states that the offense date 21 was December 3, 2019, at 11:19 a.m. and the arrest date/time was December 4, 2019, at 7:25 p.m. 22 The narrative portion of the probable cause affidavit sets forth as follows: 23 On 12/03/19 at about 1116 hours, the victim entered a vacant apartment when WILLIS grabbed the victim from behind and groped 24 her breast over her clothing. The victim attempted to escape out the apartment; however, WILLIS grabbed her, preventing her escape. 25 WILLIS placed both hands around the victim’s neck choking her then again attempted to remove her pants as the victim stated “Stop! 26 Stop!” The victim kicked WILLIS in the groin which allowed her to escape his grasp then she ran towards the front door. WILLIS then 27 ran out the front door and fled the area on foot. The victim assisted in a composite sketch of the suspect which was released to the media. 1 that WILLIS matched the description of the composite sketch of the suspect. The victim identified WILLIS as the suspect in a photo line- 2 up as the suspect who attempted to rape her and who held her against her will, preventing her from escaping. Probable cause to arrest 3 WILLIS was authorized and he was arrested and booked into the Kern County Jail for the listed charges. 4 5 Id. Plaintiff was charged with attempted rape and false imprisonment. Id. at 72. The probable 6 cause affidavit was approved by a judge on December 5, 2019, at 6:01 a.m. Id. at 71. 7 Detective Schlecht authored two reports that detailed BPD’s efforts to investigate 8 Plaintiff’s alibi. (Exhibit C, filed under seal). According to the reports, Willis had a “missing 9 activity” period from his cell phone from 10:56 a.m. to 12:08 p.m. on December 3, 2019, which 10 corresponded with the time that M.M. was attacked. Id. Detective Schlecht knew that Willis’ 11 alibi was that he was driving with Hill in a white 2015 Kia Optima around Bakersfield and 12 Delano during the time of the attack. Detective Schlecht visited various areas listed in the location 13 activity to see if they corroborated with the alibi. 14 On December 6, 2019, Schlecht visited “Culichi: Suchi & Mariscos” at 3017 Wilson Road 15 in Bakersfield and was provided with access to that establishment’s video surveillance system by 16 an employee. The cameras indicated that around 2:15 p.m. a white Kia Optima travelled into the 17 parking lot and came to a stop. Id. A female approached and entered the vehicle. Detective 18 Schlecht determined that the path traveled by the vehicle was identical to the path indicated by 19 the location history of Willis’ cell phone. Id. Detective Schlecht also documented two other 20 instances where a white Kia Optima arrived at certain locations in a manner consistent with 21 Willis’ phone information at around 10:55 a.m. and 11:37 a.m. Id. Detective Schlecht identified 22 one of these instances on December 6 and the other one on December 9, 2019. Id. 23 Detective Schlecht also received other data from Byron Willis’ cellphone download. Id. 24 In April 2020, he reviewed one year of location data from Willis’ Gmail account which showed 25 that Willis never visited the scene of the crime. The report stated that there was some initial 26 concern that Willis may have altered his Google location data search, but both his cellphone 27 downloads and Google files showed no evidence of internet searching regarding how to alter the 1 Id. Detective Schlecht also located numerous calls, chats, and SMS messages which indicated 2 that Willis was in possession of his phone and active on the phone at the time of the offense. Id. 3 The phone data corroborated Willis’ alibi that he set up a meeting with Angel via Facebook 4 messages and calls. 5 On January 22, 2020, BPD conducted a DNA test of a black hooded jacket that Willis was 6 suspected of wearing at the time of the attempted rape. The analysis used DNA samples from 7 M.M. and Willis. (Exhibit D, filed under seal). The DNA analysis excluded both M.M. and Willis 8 as potential contributors to the DNA profile obtained from the jacket. Id. On January 30, 2020, 9 Willis was released from custody. (Doc. 37 ⁋36; Doc. 61-4 p. 25). On July 29, 2020, the Kern 10 County District Attorney’s Office dismissed the charges filed against Willis. (Doc. 61-4 p. 25). 11 Willis was in custody during the Christmas and New Years holidays. (Doc. 37 ⁋36). 12 While Willis was in custody, his father died, and he was unable to say his final goodbyes or 13 mourn his father’s loss with his family. (Doc. 61 p. 12). 14 In the operative Second Amended Complaint (“SAC”), Willis brings the following causes 15 of action: (1) False Arrest under 42 U.S.C. §1983 against both Defendants; (2) Malicious 16 Prosecution under 42 U.S.C. §1983 against both Defendants; and (3) False Arrest/False 17 Imprisonment under state law against both Defendants. (Doc. 37). 18 II. Applicable Law 19 Summary judgment is appropriate where there is “no genuine dispute as to any material 20 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 21 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 22 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 23 while a fact is material if it “might affect the outcome of the suit under the governing law.” 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 25 F.2d 1422, 1436 (9th Cir. 1987). 26 Each party’s position must be supported by: (1) citing to particular portions of materials in 27 the record, including but not limited to depositions, documents, declarations, or discovery; or 1 or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R. 2 Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, 3 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 4 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has 5 discretion in appropriate circumstances to consider other materials, [but] it need not do so”). 6 Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a 7 form that would be admissible at trial.” Nevada Dep’t of Corr v. Greene, 648 F.3d 1014, 1019 8 (9th Cir. 2011) (citations and internal quotations omitted). The focus is on the admissibility of 9 the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 10 F.3d 840, 846 (9th Cir. 2004). 11 “The moving party initially bears the burden of proving the absence of a genuine issue of 12 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 13 Corp. v. Catrett, 477 U.S. at 317, 323 (1986)). To meet its burden, “the moving party must either 14 produce evidence negating an essential element of the nonmoving party’s claim or defense or 15 show that the nonmoving party does not have enough evidence of an essential element to carry its 16 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 17 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden 18 then shifts to the non-moving party “to designate specific facts demonstrating the existence of 19 genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 20 477 U.S. at 323). The non-moving party must “show more than the mere existence of a scintilla 21 of evidence.” Id. (citing Anderson, 477 U.S. at 252). However, the non-moving party is not 22 required to establish a material issue of fact conclusively in its favor; it is sufficient that “the 23 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 24 versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 25 F.2d 626, 630 (9th Cir. 1987). 26 The court must apply standards consistent with Rule 56 to determine whether the moving 27 party has demonstrated the absence of any genuine issue of material fact and that judgment is 1 “[A] court ruling on a motion for summary judgment may not engage in credibility 2 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 3 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 4 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 5 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 6 198 F.3d 1130, 1134 (9th Cir. 2000). 7 III. Discussion 8 1. Preliminary Matters 9 A. Plaintiff’s Motion to Permit Belated Filing of Opposition (Doc. 63) 10 Because Defendants’ motion for summary judgment was filed on August 9, 2023, Plaintiff 11 was required to file his opposition or statement of non-opposition no later than August 23, 2023. 12 See Local Rule 230(c). On August 29, 2023, after Plaintiff had failed to timely file any 13 opposition, Defendants filed a document titled, “Notice of Plaintiff’s Failure to Oppose 14 Defendant’s Motion for Summary Judgment or in the Alternative, Partial Summary Judgment.” 15 (Doc. 59). Although the purpose of Defendants’ filing is unclear, the notice quoted the 14-day 16 opposition filing requirement under Local Rule 230(c) and advised the Court of its prerogative to 17 construe Plaintiff’s failure to oppose the motion as a non-opposition. 18 One week later, on September 5, 2023, in light of Plaintiff’s failure to oppose the motion, 19 the Court entered a minute order vacating the motion hearing and deeming Defendants’ motion 20 for summary judgment submitted. (Doc. 60). The following day, Plaintiff filed an untimely 21 opposition brief (Doc. 60) and a request to seal certain documents submitted in connection with 22 the opposition (Doc. 61). Two days thereafter (September 8, 2023), Plaintiff filed a belated 23 motion seeking leave nunc pro tunc to file his untimely opposition brief. (Doc. 63). On 24 September 11, 2023, Defendants filed an opposition to Plaintiff’s request, and that same day, 25 Plaintiff filed a reply. (Docs. 64, 65). 26 Briefly, counsel for Plaintiff attests that he mistakenly calendared the deadline to file his 27 opposition to Defendants’ motion to be 14 days prior to the date of the noticed motion hearing 1 an opposition was August 23, counsel for Plaintiff thought it was September 6. Counsel explains 2 that, when this action was commenced, the operative local rule then in effect permitted a party to 3 file an opposition no later than 14 days before the motion hearing – as compared to the current 4 version of Local Rule 230(c), made effective in March 2022, that sets the deadline to be 14 days 5 following filing of the motion. Counsel further attests that he began working on Plaintiff’s 6 opposition brief on August 29 and discovered his misapprehension regarding the filing deadline. 7 He attests he sought from Defendants a stipulated extension of time to file, and shortly after 8 Defendants refused, they made their filing giving notice of Plaintiff’s delinquency. Counsel 9 appears to blame his neglect in part on his assertion he has no record of receiving notice of the 10 amendment to Local Rule 230. (Doc. 63-2, Declaration of Ashton Watkins, ¶ 11). 11 Plaintiff cites an opinion from a district judge of this Court finding a party’s neglect was 12 excusable in filing a brief eight days late based on a similar misapprehension of the filing 13 deadline under Local Rule 230(c). (Doc. 63-1 p. 6) (citing Rodriguez v. USF Reddaway Inc., No. 14 2:22-cv-00210-TLN-DB, 2022 WL 18012519, at *1 n.1 (E.D. Cal. Dec. 30, 2022)). However, as 15 Defendants note (Doc. 64 pp. 3-4), the circumstances here are distinct in two respects. First, the 16 Rodriguez court found excusable neglect largely because the delinquent party’s belated filing was 17 just weeks after the amendment to Local Rule 230(c) – whereas here, Plaintiff’s late filing was 18 made approximately 18 months after the current version of Local Rule 230(c) came into effect. 19 Second, notwithstanding his discovery on August 29 that he had mis-calendared the filing 20 deadline, counsel for Plaintiff did not seek relief from Court until approximately ten days later, 21 and not until days after the Court took the motion under submission and after Plaintiff already 22 filed his belated opposition. 23 Plaintiff’s suggestion that his neglect in timely filing an opposition is excusable at least in 24 part because he did not have notice of any change of the Local Rules is not well taken. The 25 scheduling order in this case – which entered approximately six months after Local Rule 230 was 26 amended – provides in relevant part:
27 All counsel are expected to familiarize themselves with … the Local Rules of Practice of the Eastern District of California, and to keep abreast of any 1 is to efficiently handle its increasing case load, and sanctions will be imposed for failure to follow both the Federal Rules of Civil Procedure and the Local Rules of 2 P ractice for the Eastern District of California. 3 (Doc. 41 at 6) (emphasis added). The mere fact that counsel for Plaintiff does not recollect 4 whether he received notice of the rule changes does not absolve him of his Court-imposed duty to 5 become familiar with and stay abreast of changes to the Local Rules. 6 Nonetheless, the undersigned finds it lamentable that Defendants opposed Plaintiff’s 7 request and were unwilling to extend a professional courtesy to opposing counsel, and instead, 8 after receiving counsel’s request for relief, chose to file the curious “Notice of Plaintiff’s Failure 9 to Oppose” and advisal to the Court that it could construe Plaintiff’s failure to oppose as a non- 10 opposition to their motion for summary judgment. This is particularly so given Defendants’ 11 acknowledgement that, in weighing Plaintiff’s request, the Court is to consider the existence of 12 good faith and/or prejudice to the nonmovant, as well as the length and reason for the delay, yet 13 they have identified no real reason not to grant the relief requested except to argue that counsel 14 for Plaintiff should have been less careless and more attentive to the Local Rules. Defendants 15 have not identified any prejudice they would suffer were the brief extension granted and they 16 have not identified any basis to conclude that counsel for Plaintiff’s error was anything more than 17 a good faith mistake. 18 The Court acknowledges that it is “permitted, where appropriate,” to accept filings when a 19 party missed a deadline due to carelessness. Pioneer Inv. Srvcs. Co. v. Brunswick Assoc. Ltd. 20 P’ship, 507 U.S. 380, 388 (1993). Having considered the factors under Pioneer, the Court 21 exercises its discretion to accept Plaintiff’s untimely opposition. 22 B. Plaintiff’s Motion to File Documents Under Seal (Doc. 62) 23 In support of his opposition, Plaintiff asks the Court to file under seal a 170-page 24 document he describes as “the Bakersfield Police Department case file in the underlying sexual 25 assault investigation (Case Number 19-254948) (Case File).” (Doc. 62, “Request to Seal”). The 26 document was emailed by counsel for Plaintiff to chambers of the undersigned consistent with 27 Local Rule 141 and is referenced in counsel’s declaration (see Doc. 61-1 ¶ 2 & Ex. 1). The bases advanced by Plaintiff in support of the request to seal is that sealing will (1) protect the privacy 1 interests of witnesses who are named throughout the documents sought to be sealed, and (2) 2 protect victim M.M. – whose name also appears in the documents sought to be sealed – from 3 intimidation and possible physical and mental harm. Id. at 2. 4 As previously conveyed to the parties in its order denying without prejudice Defendants’ 5 earlier request to seal documents in connection with their motion for summary judgment (see 6 Doc. 55), the Court agrees that the interests Plaintiff seeks to protect through the requested 7 sealing of documents are important. However, under the First Amendment, the press and the 8 public have a presumed right of access to court proceedings and documents. See generally Press- 9 Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1985); Center for Auto Safety v. Chrysler 10 Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016); cf. Olympic Ref. Co. v. Carter, 332 F.2d 260, 11 264 (9th Cir. 1964) (“In the federal judicial system trial and pretrial proceedings are ordinarily to 12 be conducted in public.”). As a general rule, the public is permitted ‘access to litigation 13 documents and information produced during discovery.’” In re Roman Catholic Archbishop of 14 Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (quoting Phillips v. Gen. Motors Corp., 15 307 F. 3d 1206, 1210 (9th Cir. 2002) and citing San Jose Mercury News, Inc. v. U.S. Dist. Court, 16 187 F.3d 1096, 1103 (9th Cir. 1999)). This presumed right can be overcome if (1) closure serves 17 a compelling interest; (2) there is a substantial probability that, in the absence of closure, this 18 compelling interest would be harmed; and (3) there are no alternatives to closure that would 19 adequately protect the compelling interest. Oregonian Publishing Co. v. U.S. District Court for 20 the District of Oregon, 920 F.2d 1462, 1466 (9th Cir. 1990) (citing Press Enterprise, 464 U.S. at 21 510). 22 Importantly, many if not most of the pages of the exhibit Plaintiff seeks to file under seal 23 do not identify witnesses. Thus, for instance, one of the documents Plaintiff seeks to file under 24 seal is a BPD press release – the Court cannot fathom what possible privacy interest is served by 25 filing under seal a document that previously was widely released to the public. Separately, 26 Plaintiff has not articulated in his request to seal whether, under Oregonian Publishing Co., any 27 alternatives to complete closure would sufficiently protect the asserted compelling interests – 1 Rivas Gomez, No. 1:18-cr-0002-JLT-SKO, 2022 WL 1556659, at *2 (E.D. Cal. May 17, 2022) 2 (“[counsel] must look through the exhibits he proposes to be sealed and point out to the Court 3 why the entire document must be sealed with citations to specific legal authority supporting that 4 claim, or he must explain why redaction cannot occur such to obviate the need to seal the entire 5 document.”); Doe v. Univ. Accounting Srv., LLC, No. 09-CV-01563-BAS-JLB, 2022 WL 6 623913, at *3 (S.D. Cal. Mar. 3, 2022) (“despite the possible threats of violence against his 7 person from his involvement in a crime as an eyewitness, Plaintiff has not adequately tailored his 8 request to seal the entire record with his need to avoid threats to his safety.”). Finally, the Court 9 notes that Plaintiff does not in his opposition to the motion for summary judgment rely upon 10 many of the documents sought to be sealed in the case file, and, thus, it is unclear to the Court 11 why such documents should be filed in the first place. 12 Notwithstanding its aversion to scouring the entire 170-page exhibit sought to be sealed to 13 determine whether any records therein warrant sealing, the Court has identified two relevant 14 reports within the exhibit that implicate privacy interests along the lines of those identified in 15 Plaintiff’s request to seal. Accordingly, the Court will grant in part Plaintiff’s request to seal and 16 order the following two records be filed under seal: (1) a law enforcement report by Detective 17 Schlecht in which he memorializes his investigation of Plaintiff’s alibi (Exhibit C, COB 0092- 18 0094); and (2) a report of DNA analysis (Exhibit D, COB 104-08). The Court otherwise will 19 deny Plaintiff’s request to seal any other documents within the exhibit and will file unsealed 20 concurrent with this order two documents contained in the 170-page case file and which are 21 material to the Court’s ruling herein but for which Plaintiff has failed to demonstrate a basis for 22 sealing. See Exhibits A & B, attached hereto. 23 2. Claims under 42 U.S.C. § 1983 24 To prevail under 42 U.S.C. § 1983, a plaintiff must prove (1) that he or she was “deprived 25 of a right secured by the Constitution or laws of the United States,” and (2) “that the alleged 26 deprivation was committed under color of state law.” Marsh v. Cnty. of San Diego, 680 F.3d 27 1148, 1152 (9th Cir. 2012) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 1 Here, Plaintiff asserts § 1983 causes of action for false arrest and malicious prosecution 2 against both Detective Luevano and the City. (Doc. 37 pp. 12-18). Plaintiff acknowledges in his 3 opposition brief that the City may be liable under § 1983 “only if the city has adopted an illegal or 4 unconstitutional policy or custom.” (Doc. 61 pp. 34-35) (citing inter alia Monell v. Dep’t of Soc. 5 Servs., 436 U.S. 658 (1978)). It is undisputed that the conduct at issues arises under color of state 6 law. Thus, the key issue is whether Defendants deprived Plaintiff of constitutional rights. 7 “The Fourth Amendment protects “[t]he right of the people to be secure in their persons, 8 houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. Amend. 9 IV. An arrest pursuant to a valid warrant is ordinarily consistent with the Fourth Amendment. 10 Baker v. McCollan, 443 U.S. 137, 143 (1979). Among other things, law enforcement officers 11 who execute an arrest warrant are generally not required under the Constitution to investigate 12 independently every assertion of innocence based on a claim of mistaken identity, nor are officers 13 who maintain custody of an accused constitutionally required to perform error-free investigations 14 of claims of mistaken identity. Id. at 145-46. 15 Conversely, an arrest without probable cause violates the Fourth Amendment and gives 16 rise to a claim for damages under § 1983. Harper v. City of Los Angeles, 533 F.3d 1010, 1022 17 (9th Cir. 2008); see Yousefian v. City of Glendale, 779 F.3d 1010, 1014 n.1. (9th Cir. 2015) 18 (absence of probable cause is an essential element of § 1983 false arrest and malicious 19 prosecution claims). Probable cause is measured by an objective standard based on the 20 information known to the arresting officer. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 21 2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). See Hill v. Scott, 349 F.3d 1068, 1072 (8th 22 Cir. 2003) (“[S]ufficent probability, not certainty, is the touchstone of reasonableness under the 23 Fourth Amendment…”). To determine whether an officer had probable cause for an arrest, courts 24 “examine the events leading up to the arrest, and then decide whether these historical facts, 25 viewed from the standpoint of an objectively reasonable police officer, amount to probable 26 cause.” O’Doan v. Sanford, 991 F.3d 1027, 1039 (9th Cir. 2021) (quoting D.C. v. Wesby, 583 27 U.S. 48, 56-57 (2018) (internal citations and quotation omitted)). 1 was no probable cause to arrest him.” Norse v. City of Santa Clara, 629 F.3d 966, 978 (9th Cir. 2 2010) (quoting Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998)). 3 Typically, “[w]here the facts or circumstances surrounding an individual’s arrest are disputed, the 4 existence of probable cause is a question for the jury.” Harper, 533 F.3d at 1022. 5 Here, Plaintiff argues that Detective Luevano, who signed an affidavit in support of the 6 warrant for his arrest, deliberately omitted or misrepresented important information to mislead the 7 approving magistrate judge (Doc. 61 pp. 25-26, 31) – a “judicial deception” theory of liability. 8 See Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011). To prevail on such a claim, Plaintiff 9 “must show that the defendant deliberately or recklessly made false statements or omissions that 10 were material to the finding of probable cause.” Ewing v. City of Stockton, 588 F.3d 1218, 1223- 11 24 (9th Cir. 2009) (quoting KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir.2004)). 12 While the affiant officer “need not include all the information” known to him in the 13 supporting affidavit, the omission of facts that “cast doubt on the existence of probable cause” 14 makes those omissions material. United States v. Johns, 948 F.2d 599, 606-07 (9th Cir. 1991) 15 (emphasis in original). But cf. United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (“An 16 officer presenting a search warrant application has a duty to provide, in good faith, all relevant 17 information to the magistrate.”). If the plaintiff bringing a claim under a judicial deception theory 18 can make a “substantial showing” of “deliberate falsehood or reckless disregard for the truth,” 19 and “but for” the misstatement or omission, probable cause would have been lacking, then “the 20 matter should go to trial.” Liston v. Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (quoting 21 Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)). 22 A false statement or omission is material if “the affidavit, once corrected and 23 supplemented, would not have provided a magistrate judge with a substantial basis for finding 24 probable cause.” Chism v. Washington State, 661 F.3d 380, 389 (9th Cir. 2011) (internal 25 quotation and citation omitted). 26 Plaintiff argues the judicial finding of probable cause to issue a warrant for his arrest is 27 undermined here because Detective Luevano engaged in deception by omitting information in his 1 Plaintiff and the victim’s description of the suspect; (2) the fact that police detained another 2 person near the crime scene shortly after the attempted rape who matched the description of the 3 actual perpetrator; (3) the fact that the two citizens who identified Plaintiff as a person who 4 resembled the composite sketch of the suspect disliked Plaintiff, spoke with each other before 5 reporting to law enforcement, and made false allegations about Plaintiff; (4) the fact that 6 Plaintiff’s DMV photo was not used in the lineup; and (5) the fact that Detective Luevano failed 7 to analyze Plaintiff’s Google GPS information, which revealed information corroborative of his 8 alibi. (Doc. 61 pp. 26-27). 9 The Court examines below each of these categories of information and concludes that, 10 although much of the information is relevant and its inclusion in the warrant affidavit would have 11 given the issuing magistrate judge important context in assessing the existence of probable cause, 12 the omission of this information collectively does not vitiate the existence of probable cause to 13 issue the arrest warrant. 14 (I) Height and Weight 15 In the context of arrest warrants, the Ninth Circuit has recognized that height and weight 16 discrepancies can affect probable cause to arrest. See Garcia v. Cnty. of Riverside, 817 F.3d 635, 17 640-42 (9th Cir. 2016) (citing cases). Generally, courts consider height differences of five inches 18 or less to be insufficient to undermine probable cause. Willis v. City of Bakersfield, No. 1:21-cv- 19 01077-AWI-JLT, 2022 WL 2306907, at *6 (E.D. Cal. Jun. 7, 2022); see Rodriguez v. Farrell, 20 280 F.3d 1341, 1348 (11th Cir. 200) (“[A] mistaken estimate of no more than five inches does not 21 equal a constitutional violation.”); White v. Olig, 56 F.3d 817, 818-20 (7th Cir. 1995) (holding 22 that a height difference of five inches and race confusion did not invalidate the arrest); cf. Garcia, 23 817 F.3d at 641 (explaining that further investigation was warranted because the arrestee was 24 “nine inches taller and forty pounds heavier than the warrant subject”); Gant v. Cnty. of Los 25 Angeles, 772 F.3d 608, 618 (9th Cir. 2014) (further investigation warranted because there was a 26 seven-inch height difference between the arrestee and the subject of the warrant); Cameron v. 27 Brown, 721 Fed. Appx. 612, 613 (9th Cir. 2017) (where plaintiff did not match the physical 1 difference of six inches and 15 pounds, holding that a reasonable jury could find that a height 2 difference of six inches for a woman is, at a minimum, a “red flag” that “should have led officers 3 to question whether the person described” in the incident report was plaintiff). 4 Here, there was only a five-inch difference between M.M.’s lowest estimate of her 5 assailant’s height and Plaintiff’s reported height (and only a three-inch difference based on 6 M.M.’s high estimate of the suspect’s height). Because a height difference of no more than five 7 inches is slight, Detective Luevano’s omission from his affidavit of this information does not 8 create a disputed issue of fact capable of vitiating probable cause. 9 The approximate 40-pound difference between the high-end estimate M.M. assigned to 10 the weight of her assailant and Plaintiff’s weight presents a closer question. Detective Luevano 11 testified that although he knew that Plaintiff was around 200 pounds based on his prior arrest 12 record and appeared to be of that weight when he made contact with Plaintiff during the 13 investigation, in Detective Luevano’s experience, people might have different versions of height 14 and weight, which places physical characteristics as just one “part of the puzzle.” (Doc. 61-3 pp. 15 37-39). Detective Luevano testified that victims may get certain things wrong after a crime since 16 they are too focused on the attack itself and cannot pay attention to the suspect’s physical 17 characteristics. Id. at 39. 18 Moreover, the perpetrator was wearing a black hooded zippered sweatshirt at the time of 19 the attempted rape. Id. at 53. It stands to reason that the use of certain clothing like sweatshirts 20 may render it difficult properly for a victim to ascertain someone’s precise height and weight. In 21 a “mistaken identity” case, the Ninth Circuit has found that a height difference of nine inches and 22 weight difference of 40 pounds between an improperly arrested plaintiff and a suspect constitutes 23 a “red flag” warranting further investigation. Garcia, 817 F.3d 642. But as the formerly assigned 24 district judge in this case previously observed in ruling on Defendants’ earlier motion to dismiss, 25 weight is a less reliable identification factor than height because a person’s weight can vary 26 dramatically over time. Willis, 2022 WL 2306907, at *6. Cf. Garcia, 817 F.3d at 642 (the 27 “extreme difference in height of nine inches between the warrant subject and Garcia, which could 1 degree, the forty pound weight differential”) (emphasis added). 2 Accordingly, the Court finds that the five-inch (at most, and three-inch at least) and 40- 3 pound difference at issue in this case is a far cry from the nine inch and 40-pound discrepancy 4 that prompted the Garcia court to hold that further investigation was warranted. Given the 5 totality of circumstances as set forth above, the Court therefore concludes this height/weight 6 discrepancy was not material given that a supplemented version of the affidavit noting the 7 discrepancy between M.M.’s observations and Plaintiff’s actual height and weight still would 8 have provided the magistrate judge with a substantial basis for finding probable cause to issue the 9 arrest warrant. Chism, 661 F.3d at 389. 10 (II) Animus 11 Plaintiff argues that Detective Luevano knew that Rinehart and Formhals (the witnesses 12 who identified Plaintiff as the suspect depicted in the composite sketch in the BPD press release) 13 spoke to each other before they reported to law enforcement and that his omission of this fact 14 from the probable cause affidavit constitutes judicial deception. (Doc. 61 p. 18). In addition, 15 Plaintiff argues that Detective Luevano knew that both witnesses held grudges against Plaintiff. 16 Moreover, Plaintiff argues that Detective Luevano knew or should have known that Formhals 17 made a false police report against him, and that Rinehart previously threatened to “cut off 18 [Plaintiff’s] balls.” 19 The Court acknowledges that disclosure of the fact that the two witnesses spoke to each 20 other about Plaintiff after seeing the composite sketch and reporting to law enforcement would be 21 important to the determination of probable cause because it would tend to undermine the 22 existence of two independent sources of information. However, assuming the magistrate judge 23 knew that Formhals and Rinehart spoke to each other and that both disliked Plaintiff, they 24 nevertheless were able to positively identify Plaintiff as the person depicted in the composite 25 sketch, which was corroborated by M.M.’s own identification even though M.M. did not speak to 26 either witness, and there is no indication that one witness’s confidence in her identification 27 overbore the other witness’s uncertainty. Cf. Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 1 from his warrant affidavit of information that reporting witnesses were angry at and disliked 2 suspect; reasoning, “we cannot say that a magistrate would not have issued the warrant if he had 3 been told all that [the affiant] knew about the informants.”). Further, the witnesses offered 4 Detective Luevano a reasonable basis in fact for their identification of Plaintiff given that they 5 lived for some period of time at the same apartment building. 6 (III) Plaintiff’s DMV Photo 7 Plaintiff argues that Detective Luevano knew he used undue influence during his photo 8 lineup with M.M. (Doc. 61 p. 25). For instance, Plaintiff argues that Detective Luevano 9 intentionally presented Plaintiff’s booking photo to M.M., even though that photo was older and 10 looks like a wanted poster photo, instead of a more accurate photo issued by the Department of 11 Motor Vehicles (“DMV”), which was taken closer in time to the incident in question. 12 Plaintiff cites no authority for the proposition that the use of a booking photo somehow 13 taints a photo lineup or that an affiant’s failure to inform a magistrate judge considering a 14 probable cause warrant application that an underlying photo lineup included booking photos 15 amounts to judicial deception. Here, the photo lineup displays the photographs of six men against 16 a grey background and the photos depict only the men’s head and neck regions. (Doc. 61-1 p. 27). 17 Plaintiff’s photo in the lineup was not unduly suggestive relative to the other photos near him. 18 Second, Plaintiff’s DMV photo shows his head and neck area at a similar angle but against a blue 19 background. (Doc. 61-2 p. 9). Had Plaintiff’s DMV photo been used in the lineup, Defendants 20 may have been subject to an allegation of undue suggestiveness since his picture would have been 21 the only one with a different background. Finally, the difference between Plaintiff’s DMV photo 22 and the photo used in the array is immaterial given that both photos bear a resemblance to 23 Plaintiff at the time he was arrested. Cf. (Doc. 61-1 p. 27; 61-2 p. 9) with (Doc. 61-2 pp. 11-24). 24 A lineup is unduly suggestive when “circumstances lead [] the witness to identify a particular 25 person as the perpetrator of a crime.” Collins v. County of Alameda, No. 22-16871, 2024 WL 26 1192265, at *3 (9th Cir. 2024) (unpublished) (quoting Perry v. New Hampshire, 565 U.S. 228, 27 232 (2012)). In this case, there are no attributes of the photo lineup that implied Plaintiff was the 1 (finding that cropping backgrounds of all photos did not make any photo stand out and instead 2 achieved the opposite effect). 3 (IV) The Detention of Another Person Near the Crime Scene 4 Plaintiff asserts that the police detained another person near the scene of the crime shortly 5 after the attempted rape who matched the description of the actual perpetrator. (Doc. 61 p. 16, 6 26). However, Plaintiff identifies no evidence that Detective Luevano knew of this person of 7 interest or otherwise considered him in his investigation; in fact, Detective Luevano’s deposition 8 testimony strongly suggests he did not know of this person when he authored his warrant 9 affidavit. (Doc. 61-3 p. 10-12). Detective Luevano’s omission of this detail, thus, cannot 10 constitute a reckless misrepresentation or omission sufficient to vitiate probable cause. 11 (V) Plaintiff’s Geolocation Information 12 Plaintiff argues that Detective Luevano failed to include in his warrant affidavit other 13 exculpatory evidence Plaintiff proffered shortly after his arrest. Namely, Plaintiff argues that on 14 the day of his arrest, Plaintiff signed a consent form and allowed Defendants to search his phone, 15 which included his Google account information. (Doc. 61 pp. 6-7). Plaintiff argues that his 16 phone geolocation services showed that he was not near the scene of the crime on December 3, 17 2019, but that Detective Luevano nevertheless declined to include this information in his probable 18 cause affidavit. Id. at 22-23. 19 Once probable cause is established, officers are under “no duty to investigate further or to 20 look for additional evidence which may exculpate the accused.” Cameron v. Craig, 713 F.3d 21 1012, 1019 (9th Cir. 2013). Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003). However, 22 officers cannot disregard facts that tend to dissipate probable cause. Nicholson v. City of Los 23 Angeles, 935 F.3d 685, 691 (9th Cir. 2019); Lopez, 482 F.3d at 1073. “If probable cause is 24 established at any early stage of the investigation, it may be dissipated if the investigating officer 25 later learns additional information that decreases the likelihood that the defendant has engaged, or 26 is engaging, in criminal activity.” United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 27 2005). “A person may not be arrested, or must be released from arrest, if previously established 1 Hernandez, 427 F.3d at 574. However, once a prosecutor has filed charges, the arresting officers 2 will generally be found immune for the continued detention. See Ewing, 588 F.3d at 1232. 3 During his interview with Detective Luevano, Willis provided a timeline of his movement 4 during the day of the sexual assault. (Doc. 61-4 p. 12). In addition, Willis gave Detective Luevano 5 permission in writing to search his phone as his GPS location services would have corroborated 6 his claim that he was in Delano at the time of the crime. Id. Detective Schlecht, who was 7 assisting Detective Luevano with his investigation and has experience as a computer forensic 8 examiner, examined Plaintiff’s phone. (Doc. 61-4 pp. 5-6). According to Detective Schlecht’s 9 deposition, while he was searching Plaintiff’s phone and taking screenshots, he noticed that there 10 was a period of “missing activity” in Plaintiff’s location history. Id. at 14. This missing activity 11 was for the date of December 3, 2019, from 10:56 a.m. to 12:08 p.m. See (Doc. 61-2 p. 26). 12 Detective Schlecht’s report states that the period of missing activity coincided with the period that 13 the offense occurred. Detective Schlecht knows from his experience with Google location history 14 that a user can edit the location data. (Exhibit C, filed under seal). According to Detective 15 Luevano, Detective Schlecht shared his suspicions with him, and he deferred to Detective 16 Schlecht’s opinion. 17 It was not until December 9, 2019 – i.e., four days after Detective Luevano authored his 18 warrant affidavit – when Detective Schlecht had been able to corroborate some aspect of 19 Plaintiff’s alibi. See id. In addition, Detective Luevano testified he believed that he had probable 20 cause to arrest plaintiff after speaking to the victim and the witnesses. (Doc. 61-3 p. 24). 21 “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the 22 facts known to the arresting officer at the time of the arrest.” Nieves Martinez v. United States, 23 997 F.3d 867, 879 (9th Cir. 2021) (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). Here, 24 in light of all the circumstances, Detective Luevano reasonably concluded that he maintained 25 probable cause at the time of the arrest since two witnesses identified Plaintiff as the person 26 depicted in the press release and M.M. (the victim) identified Plaintiff from a photo array as her 27 assailant. (Doc. 61-3). Had Detective Luevano added Plaintiff’s alibi to the probable cause 1 knew at that time – which is that there was a period of missing activity roughly at the same time 2 the assault occurred. The affidavit also would have stated that based on Detective Schlecht’s 3 experience, people can change their Google location data. 4 Assuming Detective Luevano deliberately omitted this information, Plaintiff still would 5 not have been able to establish that “but for” the dishonesty, his arrest would not have occurred. 6 Chism, 661 F.3d at 386. The magistrate judge still would have known that M.M. positively 7 identified Plaintiff and her identification was corroborated by two witnesses. The Google 8 information data, as it was understood at the time, did not dissipate probable cause because it was 9 undermined by the “missing activity” right at the time that the assault occurred. Nieves Martinez, 10 997 F.3d at 880. 11 * * * * * 12 As detailed above, although inclusion in the warrant affidavit of much of the information 13 Plaintiff argues was deceptively omitted would have given the issuing magistrate judge important 14 context in assessing the existence of probable cause, the Court concludes the omission of this 15 information collectively is not material. Specifically, the Court finds that inclusion of this 16 information in the warrant affidavit nevertheless would have permitted a judicial finding that 17 probable cause for Plaintiff’s arrest existed. E.g., Ewing, 588 F.3d at 122-25 (false information in 18 warrant affidavit deemed not material where an independent, reliable source’s description of the 19 crime and identification of the plaintiff were sufficient to establish probable cause). 20 Given this conclusion, the Court must grant Defendants summary judgment on Plaintiff’s 21 false arrest and malicious prosecution causes of action brought under § 1983. See Yousefian, 779 22 F.3d at 1014 (“The absence of probable cause is a necessary element of § 1983 false arrest and 23 malicious prosecution claims”); Smith, 640 F.3d at 938 (“even after correcting for the allegedly 24 false and omitted information in Sergeant Almada’s warrant application, probable cause 25 supported Smith’s arrest for arson. For the same reason, probable cause supported Smith’s 26 prosecution.”); Carvajal v. Clark Cnty., 539 F. Supp.3d 1104, 1116 (D. Nev. 2021) (same).6
27 6 As Plaintiff acknowledges (see Doc. 61 pp. 34-35), the City additionally may not be liable under § 1983 unless, in addition to establishing its involvement in the deprivation of a constitutional 1 2. State False Arrest and False Imprisonment Claims 2 Turning to Plaintiff’s state law claims, under California law, false arrest and false 3 imprisonment are not separate torts; instead, a false arrest is considered a way to commit a false 4 imprisonment. Watts v. Cnty. of Sacramento, 256 F.3d 886, 891 (9th Cir. 2001). To state a claim 5 of false arrest or false imprisonment, a plaintiff must show: “(1) the nonconsensual, intentional 6 confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, 7 however brief.” Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011) (quoting 8 Easton v. Sutter Coast Hosp., 80 Cal. App.4th. 485, 496 (2000)). Similar to a claim under § 9 1983, “California state law prohibits civil liability for false arrest where an arresting officer had 10 reasonable cause to believe the arrest was lawful.” Garcia v. Cnty. of Merced, 639 F.3d 1206, 11 1213 (9th Cir. 2011) (reversing denial of summary judgment on state law false arrest claim where 12 officer defendants had probable cause to arrest plaintiff); see Jaramillo v. City of San Mateo, 76 13 F.Supp.3d 905, 927 (N.D. Cal. 2014) (“Courts analyze state false arrest and false imprisonment 14 claims under the same rubric as § 1983 claims based on false arrest under the Fourth 15 Amendment.”) (citations omitted). 16 Since the Court finds Plaintiff fails to identify any disputed issue of material fact as to the 17 existence of probable cause for Plaintiff’s arrest under § 1983, the Court must grant summary 18 judgment to Defendants on Plaintiff’s state law claims for false imprisonment and false arrest. 19 20 Remainder of This Page Intentionally Left Blank
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25 force behind Plaintiff’s alleged injury. See Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001) (citation and quotation marks omitted). Because 26 Plaintiff is unable to raise a triable issue of material fact as to the existence of probable cause and, hence, existence of a constitutional injury, the Court declines to separately address Defendants’ 27 arguments concerning the remaining elements of a Monell claim. See Aguilera v. Baca, 510 F.3d 1161, 1174 (9th Cir. 2007) (declining to reach Monell claim against city since no violation of any 1 | IV. Conclusion 2 For the reasons set forth above, IT IS HEREBY ORDERED: 3 1. Defendants’ motion for summary judgment (Doc. 62) is GRANTED. 4 2. The Clerk of the Court is directed to CLOSE this case. 5 | IT IS SO ORDERED. ° Dated: _ April 15, 2024 | hr 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IA