Cherry v. Modesto Police Sergeant James "derrick" Tyler

• Decision Date: 06 March 2019
• Docket Number: 1:18-cv-01268-LJO-EPG
• Parties: ADORTHUS CHERRY, Plaintiff, v. Modesto Police Sergeant JAMES "DERRICK" TYLER, Lieutenant TERRY SEESE, the CITY OF MODESTO, and JOHN/JANE DOEs #s 1 through 10, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

ADORTHUS CHERRY, Plaintiff, v. Modesto Police Sergeant JAMES "DERRICK" TYLER,Lieutenant TERRY SEESE, the CITY OF MODESTO,and JOHN/JANE DOEs #s 1 through 10, inclusive, Defendants.

1:18-cv-01268-LJO-EPG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 6, 2019

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS (ECF No. 8)

I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Harris to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

Civil trials set before Chief Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the Nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.

II. INTRODUCTION

Plaintiff Adorthus Cherry brings this action against Defendants Sergeant James "Derrick" Tyler, Lieutenant Terry Seese, the City of Modesto, and Does 1-10. This action arises out of Plaintiff's arrest for allegedly threatening Sgt. Tyler at a high school football game. Plaintiff alleges causes of action for violation of his constitutional rights pursuant to 18 U.S.C. §§ 1983 and 1985, federal common law, and state law. Defendants move to dismiss all of Plaintiff's claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.

III. BACKGROUND

A. Factual Allegations

1. Plaintiff's Initial Contacts with Modesto Police

Plaintiff Adorthus Cherry is a former resident of Modesto and former professional body builder. ECF No. 1 ¶ 13. Defendant Sergeant Derrick Taylor is a veteran of the Modesto Police Force. Id. ¶ 14. He was also, at the time of these events, the freshman running back coach for Modesto Central Catholic High School football team. Id. Sgt. Tyler and Plaintiff were acquainted, including because Sgt. Tyler once attempted to recruit Plaintiff's eldest son, who was a star at Oakdale High School, to play for Central Catholic. Id.

Plaintiff alleges that on or about June 9, 2016, several Modesto police officers confronted and detained Plaintiff on the street in front of a Modesto Police Department-owned building. Id. ¶ 15. Plaintiff pleads he filmed his encounter with police, within his rights, upon which police unlawfully detained him, falsely accusing him of causing a disturbance. Id. While the questioning officers began toleave the scene, Sgt. Tyler allegedly emerged from the building and questioned Plaintiff. Id. ¶ 16.

Plaintiff pleads the officers who had departed returned and informed Plaintiff that since he was on informal probation at the time for misdemeanor marijuana possession, he must submit to an immediate search. Id. ¶ 17. While the officers detained Plaintiff outside the police building, they ordered a probation search of his home. Id. During the probation search, police discovered a small indoor marijuana grow. Id. Modesto Police then arrested Plaintiff and charged him with cultivation and possession for sale of marijuana. Id. However, these charges were dismissed after Plaintiff allegedly presented evidence that he and his wife were authorized as medical marijuana patients to possess and cultivate all the marijuana that was seized from their home. Id.

Also on or about June 9, 2016, the Modesto Police Department allegedly posted and/or distributed the first of at least three "Criminal Information Bulletins" regarding Plaintiff. Id. ¶ 19. The bulletins stated, in pertinent part:

Cherry often videos officers with his telephone and /or from cameras outside his home. During his contacts with officers he attempts to bait officers with his demeanor into unwarranted uses of force or inappropriate arrests. He often posts videos or photographs of interactions with officers on the internet. Mr. Cherry is the subject of several restraining orders and appears to enjoy controversy and conflict with others including his family. His statements generally have not met the elements of terrorists threats, though his demeanor can be threatening. The Cherry's have several civil cases in litigation as well.

Id.

Approximately one month later, Plaintiff posted the following criticism of Sgt. Tyler on Plaintiff's Facebook page: "CC [Central Catholic High school] employees a racist BLACK POLICE OFICER as a coach! Horrible!!!! See you in 10 wks!" Id. ¶ 20. Sgt. Taylor later testified that he interpreted "10 wks" to refer to the approaching rival varsity football game in Oakdale between Oakdale High School and Modesto Central Catholic High School. Id. ¶ 21. Sgt. Tyler testified later that he considered it threatening. Id. According to Tyler, he allegedly documented the post to his patrol captain, but there is no evidence he took any other action. Id.

2. The Confrontation Between Sgt. Tyler and Plaintiff at a Football Game

On November 4, 2016, Plaintiff and Sgt. Tyler both attended the rival football game referenced in Plaintiff's Facebook post—Plaintiff to watch his son play and Sgt. Tyler as the coach for the freshman running backs. Id. ¶ 22. (Sgt. Tyler was not coaching this varsity game but only attending as a guest.) Sgt. Tyler allegedly was off duty and in civilian clothes. Id. The game took place at Oakdale High School. Id. ¶ 4.

Around the end of halftime, as Sgt. Tyler was returning from the restroom and walking back toward the football field, he saw Plaintiff walking in the opposite direction along with three or four other people. Id. ¶ 23. Plaintiff alleges that Sgt. Tyler initiated a conversation, saying "What's up" to Plaintiff. Id. Plaintiff pleads that the men then had a verbal exchange in which Plaintiff accused Sgt. Tyler of setting him up in the June 9, 2016 bust, which Sgt. Tyler denied. Id. A coach passing by asked if there was a problem, to which Sgt. Tyler answered no, and stated that he had arrested Plaintiff once before and could do so anytime he wanted. Id. Plaintiff alleges that at no point did he verbally or physically threaten Sgt. Tyler. Id. ¶ 24. Nevertheless, Sgt. Tyler later testified that he did not take anything Plaintiff said as a threat until Plaintiff said, "I'm going to get you," to which Sgt. Tyler responded, "Are you threatening me?" Id. ¶ 25. Plaintiff pleads that, according to Sgt. Tyler, Plaintiff "cussed" and/or said something unintelligible in response. Id. Sgt. Tyler allegedly then continued onto the field, finally walking away. Id. Plaintiff pleads Sgt. Tyler testified that he "didn't pay attention to [Cherry] after that." Id. Throughout their exchange, the men stood at least several yards apart and were separated by a fence. Id. ¶ 24. Sgt. Tyler eventually returned to the field and Plaintiff did not follow Sgt. Tyler onto the field. Id.

Plaintiff alleges Sgt. Tyler did not summon the police officers who were working security at the game after the encounter. Id. ¶ 26. Plaintiff pleads Sgt. Tyler did make a comment to Plaintiff's son's coaches about "Getting Cherry." Id.

3. Arrest After the Game

The same evening as the football game, Sgt. Tyler allegedly exchanged text messages with Modesto Police Lieutenant Terry Seese. Id. ¶ 27. Plaintiff's Complaint excerpts the exchange as follows:

Sgt. Tyler: Nothing like Cherries [sic] dad threatening me at a football game.

Lt. Seese: Arrest him

Sgt. Tyler: That's the plan.

Lt. Seese: I was joking.

Sgt. Tyler: He knows what I do. And he is complaining about his last arrest. He thinks I set him up. I won't do it myself.

Lt. Seese: He's an idiot / Welcome to the corral.

Sgt. Tyler: . . . Yes he is an idiot . . .

Id. Plaintiff alleges that on or about the next day, November 5, 2016, Lt. Seese contacted his colleagues in the Oakdale Police Department and arranged for them to contact Sgt. Tyler.¹ Id. ¶ 30. Plaintiff alleges Sgt. Tyler gave a false account of events to the Oakdale police, that Plaintiff had threatened Sgt. Tyler the day before and that Sgt. Tyler had actually felt threatened. Id. Plaintiff claims that, according to the Oakdale Police Officer who took the statement, "Tyler stated that he wanted Cherry arrested for the threats." Id. Plaintiff pleads that the Modesto Police Department then arrested Plaintiff at his home the same day. Id. ¶¶ 31, 57. Police officers' lapel cameras were allegedly turned off during a concurrent search of Plaintiff's home. Id. ¶ 31.

The Stanislaus District Attorney's office charged Plaintiff with violating California Penal Code §§ 69 (threatening an officer with intent to interfere), 1361.1 (threatening a witness with intent to dissuade), and 140(a) (threat of force or violence because of prior assistance in prosecution). Id. ¶ 32. At the preliminary hearing on October 23, 2017, the Court dismissed the Penal Code § 69 charge (because Tyler was off duty) and the § 136.1 charge (because Tyler was not a witness to any separatealleged crime), but...