Borden v. Bare
| Decision Date | 28 September 2022 |
| Docket Number | 1:20-cv-01103-AWI-EPG |
| Parties | CHLOE PSALM JERI BORDEN, Plaintiff, v. DEPUTY ETHAN BARE; DEPUTY JEREMY MALICOAT, Defendants |
| Court | U.S. District Court — Eastern District of California |
CHLOE PSALM JERI BORDEN, Plaintiff,
v.
DEPUTY ETHAN BARE; DEPUTY JEREMY MALICOAT, Defendants
No. 1:20-cv-01103-AWI-EPG
United States District Court, E.D. California
September 28, 2022
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(DOC. NO. 23)
This case stems from an arrest of Plaintiff Chloe Psalm Jeri Borden by Defendants Fresno County Sheriff's Deputies Ethan Bare and Jeremy Malicoat. Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violations of her rights protected by the First and Fourth Amendments to the United States Constitution. Doc. No. 1. Pending before the Court is Defendants' Motion for Summary Judgment. Doc. No. 23. For the reasons discussed below, the Court will grant Defendants' Motion.
SUMMARY JUDGMENT FRAMEWORK
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Southern Cal. Darts Ass'n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). The moving party bears the burden of establishing the absence of a genuine issue of material fact, generally by “citing to particular parts of materials in the record” such as depositions, interrogatory answers, declarations, and documents. Fed.R.Civ.P. 56(c); see also Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
(1986)). A fact is “material” if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). If the moving party does not meet this burden, “[s]ummary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues.” Henry v. Gill Indus., 983 F.2d 943, 950 (9th Cir. 1993).
If the moving party meets this burden, the burden shifts to the opposing party to show a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000). “[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248; Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Summary judgment may not be granted “where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). If the nonmoving party does not produce enough evidence to create a genuine issue of material fact after the burden has shifted, the moving party is entitled to summary judgment. Fed.R.Civ.P. 56(c); Nissan Fire & Marine Ins., 210 F.3d at 1103; Celotex, 477 U.S. at 322.
FACTUAL BACKGROUND[1]
Fresno County Superior Court General Order, effective on June 7, 2018 (“General Order”), and Local Rule 1.1.17 regulate the use of cameras and recording devices in and around Fresno County Superior Courthouses. DUMF 5; PUMF 5. With a few exceptions, these regulations generally prohibit photographing, recording, and broadcasting the inside of Fresno County Superior Courthouses. DUMF 5, 8; PUMF 5.
On May 10, 2019, Plaintiff was in the breezeway near the north entrance to the Fresno County Superior Courthouse. DUMF 1. Standing in or around the courthouse's “designated media area,” Plaintiff began using her cell phone to video record the security screening and lobby area inside the courthouse as individuals entered and went through screening. DUMF 1-2; PUMF 1. Plaintiff was neither a member nor representative of the media. Doc. No. 37 at 2. Defendant Bare noticed Plaintiff from within the courthouse, opened the entrance door, and asked Plaintiff if she was taking pictures. DUMF 3-4. Defendant Bare thereafter returned into the courthouse. PUMF 4.
After noticing Plaintiff still in the breezeway appearing to video record the inside of the courthouse, Defendant Bare contacted Plaintiff a second time to investigate whether she was photographing or video recording the courthouse's entrance and interior in violation of the General Order and Local Rule 1.1.17. DUMF 6. Defendant Bare was unable to determine how Plaintiff was using her cell phone and again returned into the courthouse. DUMF 7.
Shortly thereafter, Defendants Bare and Malicoat went out to the breezeway, asked Plaintiff what she was doing, and informed her of the General Order and Local Rule 1.1.17. DUMF 8; PUMF 8. Plaintiff responded by asking Defendants for their names and badge numbers, which Defendants then provided. DUMF 9. Plaintiff also asked if she could record them, and Defendants did not refuse. PUMF 9, 10. As Defendant Bare attempted to explain the applicable
rules, Plaintiff repeatedly talked over and interrupted him. DUMF 10. Defendant Bare eventually asked Plaintiff for her identification, to which she refused and asked what crimes she was committing. DUMF 11; PUMF 11. Plaintiff requested to see the applicable rules, and Defendants attempted to explain them orally without showing them to her in writing. PUMF 12; DUMF 11.
Defendants allege Plaintiff's repeated interruptions and refusal to identify herself delayed and obstructed Defendant Bare's investigation into whether she was photographing or video recording the courthouse in violation of the General Order and Local Rule 1.1.17. DUMF 12. Defendant Bare reached for Plaintiff's arm to handcuff her, and she responded by pulling away from his grasp. DUMFs 13-14; PUMF 13. Defendant Bare's incident report does not state that he gave Plaintiff a warning before grabbing her arm to handcuff her. DUMF 18. Both Defendants thereafter overcame her resistance by grabbing Plaintiff's arms and pushing her against a wall to handcuff her. DUMF 14; PUMF 14. Defendants arrested Plaintiff on grounds that she violated California Penal Code section 148(a)(1) by willfully delaying and obstructing a peace officer engaged in the performance of his duties. DUMF 15.
On August 8, 2020, Plaintiff filed her Complaint against Defendants, asserting three causes of action: (1) retaliatory detention and arrest in violation of the First and Fourth Amendments, (2) malicious and retaliatory prosecution in violation of the First and Fourth Amendments, and (3) excessive and retaliatory force in violation of the First and Fourth Amendments. Doc. No. 1. On May 2, 2022, Defendants filed a Motion for Summary Judgment with respect to all of Plaintiff's claims. Doc. No. 23.
DISCUSSION
Defendants seeks summary judgment on all of Plaintiff's claims, including Plaintiff's (1) retaliatory detention and arrest claim in violation of the First and Fourth Amendments, (2) malicious and retaliatory prosecution claim in violation of the First and Fourth Amendments, and (3) excessive and retaliatory force claim in violation of the First and Fourth Amendments. The Court will review each claim below in turn.
1. Retaliatory Detention and Arrest
A. Fourth Amendment
Defendants' Arguments
Defendants argue that Plaintiff's Fourth Amendment claim for unconstitutional and retaliatory arrest is baseless because Defendants had probable cause to arrest her. Based on the facts known to Defendants at the time of the arrest, Defendants attempted to investigate whether Plaintiff was violating the General Order and Local Rule 1.1.17. However, Plaintiff delayed and obstructed Defendants' investigation in violation of California Penal Code § 148(a)(1). Because the totality of the circumstances indicated that there was a fair probability that Plaintiff violated California Penal Code § 148(a)(1), Defendants argue they had probable cause to arrest Plaintiff.
Furthermore, Defendants argue they are protected by qualified immunity because there was no clearly established law informing Defendants that their arrest of Plaintiff violated her constitutional rights. According to Defendants, it was reasonably arguable under Ninth Circuit case law that they had probable cause to arrest Plaintiff-that is, reasonable officers could disagree as to the legality of arresting Plaintiff.
Plaintiff's Arguments
Plaintiff argues that Defendants lacked probable cause to arrest her and cites the findings of expert Darrell York to support this argument. According to York, Defendants had no legal basis to require Plaintiff to stop and provide identification because she had not violated the General Order or Local Rule 1.1.17. Therefore, Defendants' alleged probable cause to arrest her for delaying and obstructing their investigation is baseless because there was no violation to investigate in the first place. Plaintiff further contends that Defendants are not immune...
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