Delia v. City Of Rialto

Decision Date08 November 2010
Docket NumberNo. 09-55514.,09-55514.
Citation621 F.3d 1069
PartiesNicholas B. DELIA, Plaintiff-Appellant, v. CITY OF RIALTO, a Public Entity; City of Rialto Fire Department, a Public Agency; Stephen C. Wells, Individually and as the Fire Chief for the City of Rialto; Mike Peel, Individually and as Battalion Chief for the City of Rialto; Frank Bekker, Individually and as Battalion Chief for the City of Rialto; Steve A. Filarsky, Individually and as an Internal Affairs Investigator for the City of Rialto, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Michael A. McGill and Carolina V. Diaz of Lackie, Dammeier & McGill, Upland, CA, for appellant Nicholas B. Delia.

Howard B. Golds and Cynthia M. Germano of Best Best & Kreiger, L.L.P., Riverside, CA, for appellees City of Rialto, City of Rialto Fire Department, Stephen C. Wells, Mike Peel and Frank Bekker.

Jon H. Tisdale and Jennifer Calderon of Gilbert, Kelly, Crowley & Jennett, Los Angeles, CA, for appellee Steve A. Filarsky.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:08-cv-03359-R-PLA.

Before ALFRED T. GOODWIN, JOHNNIE B. RAWLINSON, Circuit Judges, and MARK W. BENNETT, District Judge. *


The opinion filed September 9, 2010 , is amended as follows:

Slip Opinion page 13785, first full paragraph, lines 7-8 replace “knew they could not directly do without clearly violating the Fourth Amendment with “declined to do directly.”

With that amendment, Judge Rawlinson voted, and Judges Goodwin and Bennett recommended, to deny the Petition for Rehearing En Banc.

The full court has been advised of the Petition for Rehearing En Banc, and no judge of the court has requested a vote.

Appellee Steve A. Filarsky's Petition for Rehearing En Banc filed on October 8, 2010, is DENIED.

Future petitions for rehearing and rehearing en banc will not be entertained.


BENNETT, District Judge:

Appellant Nicholas B. Delia (Delia), a firefighter, brought this 42 U.S.C. § 1983 action against the City of Rialto, the Rialto Fire Department, Rialto Fire Chief Stephen C. Wells, two Rialto Fire Department Battalion Chiefs, Mike Peel and Frank Bekker, and a private attorney, Steve Filarsky. Delia alleges violations of his constitutional rights arising during a departmental internal affairs investigation. While being represented by counsel and interrogated at headquarters, he was ordered to go directly to his home while being followed by Battalion Chiefs Peel and Bekker in a City vehicle. He was ordered that when he arrived at his home he was to enter his home while in full view of the Battalion Chiefs, retrieve several rolls of recently purchased insulation, and bring them out of the house and place them in his front yard for inspection by the Battalion Chiefs. Delia was told earlier in the interview that if he failed to do this he could be found to be “insubordinate” and subject to disciplinary action including termination. This order was given a few minutes after Delia and his counsel refused to consent to a warrantless search of his home by Battalion Chief Peel. 1

The district court granted summary judgment in favor of all defendants. In a written order, the district court held that all of the individual defendants were entitled to qualified immunity. The district court also found that the City of Rialto (“the City”) could not be held liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This was because Delia failed to show that a municipal policy caused his injury. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

For the reasons discussed below, we conclude that Delia's constitutional right under the Fourth Amendment of the United States Constitution to be protected from a warrantless unreasonable compelled search of his home was violated. However, because we also conclude that this right, under these or similar facts, was not clearly established at the time of this constitutional violation, we affirm the district court's order granting qualified immunity to Stephen Wells (Chief Wells), Mike Peel (Peel), and Frank Bekker (Bekker). We also affirm the district court's grant of summary judgment to the City on Delia's Monell claim, but reverse the district court's grant of qualified immunity to Steve Filarsky (Filarsky) and remand for further proceedings.

A. Work Incident And Its Aftermath

In July 2000, Delia was hired by the City's Fire Department as a firefighter. He was later promoted to the rank of engineer. As a result of a disciplinary decision against him, he was demoted back to firefighter in June 2006. On August 10, 2006, Delia began to feel ill while working to control a toxic spill. He was then transported to a hospital emergency room for evaluation. There, a doctor gave him an off-duty work order for three work shifts. The doctor, however, did not place any activity restrictions on Delia.

On August 15, 2006, Delia returned to the hospital. The doctor again issued him an off-duty work order. This time it was for eight shifts. The doctor also scheduled a medical test for him. Again, the doctor did not place any activity restrictions on Delia. On August 22, 2006, Delia returned to the hospital and the doctor gave him an off-duty work order for eight shifts. Once again, no activity restrictions were placed on Delia. Shortly after this examination, Delia underwent a colonoscopy and endoscopy. He was diagnosed with esophagitis, an ulceration of the esophagus. On August 29, 2006, Delia's doctor issued an off-duty work order for the period of August 29, 2006, through September 3, 2006. The doctor cleared him to return to work after September 3, 2006.

The City was suspicious of Delia's off-work status due to his disciplinary history. The record reveals that Delia was previously disciplined for sending improper e-mails. Why this would make the City suspicious of Delia's off-work activities is not readily apparent. In any event, the City hired a private investigation firm to conduct surveillance on Delia. During this surveillance, Delia was filmed buying building supplies, including several rolls of fiberglass building insulation, at a home improvement store. Based on these observations, the City began a formal internal affairs investigation of Delia to determine whether he was off-work on false pretenses. The City began its internal affairs investigation of Delia despite the fact that Delia had no activity restrictions placed on him by his treating physician and the City possessed no contrary evidence.

As part of the internal affairs investigation, Delia was ordered to appear, on September 18, 2006, for an administrative investigation interview. The interview was conducted by Filarsky, a private attorney retained by the City. Filarsky had previously represented the City in conducting interviews during internal affairs investigations.

B. The Internal Affairs Interview

Filarsky's interview of Delia was conducted on September 18, 2006. In addition to Filarsky and Delia, Delia's attorney, Stuart Adams, Peel and Bekker were also present at the interview. At the onset of the interview, Filarsky warned Delia that he was obligated to fully cooperate. Delia was further cautioned that [i]f at any time it is deemed you are not cooperating then you can be held to be insubordinate and subject to disciplinary action, up to and including termination.”

After some preliminary questions, Filarsky asked Delia about any home construction projects he was currently undertaking in his home. Delia answered that he had some duct work done in his home and had purchased some rolls of insulation. He told Filarsky that the rolls were currently sitting in his house. Filarsky showed Delia a videotape of him purchasing home construction materials, including the rolls of insulation, at a store. Filarsky asked Delia whether this insulation had been installed. Delia told Filarsky that it was still bagged at his house. Shortly after this line of questioning, Filarsky requested Delia and Adams step out of the interview room so he could confer with “the Chiefs.” During this break, Filarsky consulted with Chief Wells concerning his desire to order Delia to produce the rolls of insulation for inspection. Chief Wells, who was never present during the interview with Delia, agreed to permit Filarsky to order Delia to produce the rolls of insulation.

Following the break, Filarsky asked Delia to allow Peel to follow him to his house and, once there, permit Peel to enter his home to conduct a warrantless search of the insulation there. On the advice of counsel, Delia refused Filarsky's request. Unable to get Delia to consent to a warrantless search of his house by Peel, Filarsky then asked if Delia would volunteer to have Peel follow him to his house, where Delia would bring out the rolls of insulation to show Peel that they had not been installed. Again, on the advice of his counsel, Delia refused Filarsky's request.

Unable to get Delia to volunteer, Filarsky orally ordered Delia to produce the rolls of insulation from his house. Adams, Delia's attorney, questioned Filarsky's legal authority for issuing such an order and requested that the order be in writing. Following a lengthy break, Delia was presented with a written order to produce the insulation for inspection signed by Chief Wells. The interview then concluded.

C. The Search And Resulting Lawsuit

Immediately after the interview, Peel and Bekker followed Delia, in a city vehicle, to Delia's house. Once there, Peel and Bekker parked alongside the curb in front of Delia's house, and waited a few minutes for Adams to arrive. Peel and Bekker never left their vehicle. After Adams arrived, he, Delia, and a union representative went into Delia's house and...

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