Morse v. Regents of the Univ. of California

• Citation: 278 Ed. Law Rep. 147,821 F.Supp.2d 1112
• Decision Date: 18 May 2011
• Docket Number: No. C 10–05594 SI.,C 10–05594 SI.
• Court: U.S. District Court — Northern District of California
• Parties: David MORSE, Plaintiff, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, BERKELEY, et al., Defendants.

278 Ed. Law Rep. 147

821 F.Supp.2d 1112

David MORSE, Plaintiff,

v.REGENTS OF the UNIVERSITY OF CALIFORNIA, BERKELEY, et al., Defendants.

No. C 10–05594 SI.

United States District Court, N.D. California.

May 18, 2011.

Matt Gonzalez, Gilbert Whitney Leigh, Gonzalez & Leigh LLP, San Francisco, CA, David A. Greene, Geoffrey Winslow King, James Russell Wheaton, The First Amendment Project, Oakland, CA, for Plaintiff.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

SUSAN ILLSTON, District Judge.

Defendants' partial motion to dismiss is currently scheduled for hearing on May 20, 2011. Pursuant to Civil Local Rule 7–1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing. Having considered the papers submitted, and for good cause shown, the Court hereby GRANTS IN PART and DENIES IN PART defendants' motion. The Case Management Conference scheduled for May 20, 2011 at 2:30 p.m. is continued to July 1, 2011 at 2:30 p.m.

BACKGROUND

This case concerns an incident that occurred on December 11, 2009. Plaintiff David Morse alleges that he is a veteran journalist who was covering a demonstration on that date against budget cuts at the University of California, Berkeley. Compl. ¶ 1. He alleges that police officers targeted him in order to obtain photographs that one police officer described as “evidence of a crime.” Id. He claims that he was improperly detained, arrested, and subjected to excessive force; that his property was subject to searches and seizures without proper cause and without the proper warrants being issued; that charges were later increased against him do delay his ability to make bail; and that police officers made material misrepresentations on a search warrant application. He alleges that these acts were part of an illegal effort to seize photographs from his camera, interfere with his efforts to cover the protest, and chill him from reporting news in the future.

Named as defendants in plaintiff's complaint are the Regents of the University of California, Berkeley (“Regents”); the University of California at Berkeley Police Department (“UCPD” or “Department”); University of California of Berkeley Police Chief Mitchell J. Celaya III; UCPD Detective Nicole Miller; UCPD Detective Reich; UCPD Sergeant Harris; UCPD Officer Wyckoff; and UCPD Officer Manchester.¹ Plaintiff brings claims under 42 U.S.C. section 1983 for violation of the First Amendment, the Fourth Amendment, and the Excessive Bail Clause of the Eighth Amendment. He brings a claim for violation of the Privacy Protection Act, 42 U.S.C. section 2000aa et seq. And he requests declaratory and equitable relief under 28 U.S.C. sections 2201 and 2202.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 544, 555, 127 S.Ct. 1955.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.2008).

If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). Dismissal of a pro se complaint without leave to amend is proper only if it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980)).

ANALYSIS

Defendants move to dismiss all claims against the Regents and the Department; the Excessive Bail claim against all defendants; the Section 1983 claims against defendant Celaya in his individual capacity; and the Privacy Protection Act claim against defendant Celaya.

I. Defendant Regents of the University of California

Plaintiff does not contest defendants' motion to dismiss all claims against the Regents and the Department. Defendants' motion to dismiss these claims is GRANTED.

II. Eighth Amendment claim for Excessive Bail

Defendants move to dismiss plaintiff's Section 1983 claim for violation of the Excessive Bail Clause of the Eighth Amendment. First, they argue that an Excessive Bail Clause claim can only be maintained if a person's bail was excessive in light of the actual charges facing him. Second, they argue that defendants were not factually or proximately responsible for setting plaintiff's bail, since bail is set at the discretion of a judge.

The opening clause of the Eighth Amendment to the U.S. Constitution reads: “Excessive bail shall not be required.” U.S. Const. Amend. VIII. This “Excessive Bail Clause prevents the imposition of bail conditions that are excessive in light of the valid interests the state seeks to protect by offering bail.” Galen v. County of Los Angeles, 477 F.3d 652, 660 (9th Cir.2007). When faced with claims of excessive bail, courts “look to the valid state interests bail is intended to serve for a particular individual and judge whether bail conditions are excessive for the purpose of achieving those interests.” Id. “The state may not set bail to achieve invalid interests, nor in an amount that is excessive in relation to the valid interests it seeks to achieve.” Id. (citations omitted).²

California Penal Code section 1275 defines the state interests that judicial officers are to consider in setting bail:

(a) In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration.

In considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant.

The parties generally agree that a police officer may be liable for violation of the Excessive Bail Clause for deliberately or recklessly misleading the judicial officer setting bail, or otherwise preventing the judicial officer from exercising his independent judgment.³ See Wagenmann v. Adams, 829 F.2d 196, 212 (1st Cir.1987) (upholding plaintiff's jury verdict on excessive bail claim where “a jury could reasonably infer from th[e] evidence that the policeman did not merely arrest Wagenmann and then step aside, letting an independent judicial officer set bail”); cf. Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir.2004) (“[T]he presumption of prosecutorial independence does not bar a subsequent § 1983 claim [for malicious prosecution] against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings.”).

Plaintiff's theory on his excessive bail claim is that defendants added unsupported charges for the sole purpose of increasing his bail, so that they could keep him in custody longer, so that they could obtain an illegal search warrant for his camera and deter him from exercising his first amendment rights in the future. In support of this theory, plaintiff alleges the following facts.

When the police arrived at the location of the protest, defendant Wyckoff shouted at plaintiff “I saw you take a picture of us. We want your camera. We believe your camera contains evidence of a crime.” Compl. ¶ 38. Plaintiff responded that he was a journalist, that he could show them his press pass, and they should not take his camera. Id. ¶ 39. Rather than looking at plaintiff's press pass, defendants Manchester and Wyckoff detained plaintiff. Id. Later, defendants Wyckoff and Harris, and several other officers on the scene, did examine plaintiff's press pass, but they continued to detain him. Id. ¶ 44. Plaintiff made a number of statements to defendants Manchester, Wyckoff, and Harris about being a member of the press, explaining that he did not think that it was legal for them to detain him and seize his camera. Id. ¶ 49. Defendant Wyckoff told plaintiff that he was being arrested for “riot and vandalism.” Id. ¶ 50. Plaintiff was booked at the Santa Rita jail on those charges, made bail the next morning, and was taken to a small, unlocked waiting room at the jail. Id. ¶¶ 52, 57. Forty-five minutes...