McFarland v. City of Clovis, CASE NO. 1:15-CV-1530 AWI SMS

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Docket Number: CASE NO. 1:15-CV-1530 AWI SMS
• Decision Date: 10 April 2017
• Parties: LYLE S. McFARLAND, Plaintiff v. CITY OF CLOVIS, et al., Defendants

LYLE S. McFARLAND, Plaintiff
v.
CITY OF CLOVIS, et al., Defendants

CASE NO. 1:15-CV-1530 AWI SMS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

April 10, 2017

ORDER ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT

(Doc. Nos. 37, 48)

This case arises from an encounter between Plaintiff Lyle McFarland ("McFarland") and Defendant Officers Jacob Rios ("Rios") and Richard Collins ("Collins") of the City of Clovis Police Department ("Clovis P.D."). Currently before the Court is McFarland's motion for summary judgment with respect to the first, second, fourth, sixth, and seventh causes of action on the ground that there was no probable cause to arrest him under California Penal Code § 422, and Defendants' motion for summary judgment on all claims. For the reasons that follow, McFarland's motion will be denied and Defendants' motion will be granted in part and denied in part.

SUMMARY JUDGMENT FRAMEWORK

Cross motions for summary judgment are evaluated separately under the same standards that apply to single summary judgment motions.¹ See Pintos v. Pacific Creditors Ass'n, 565 F.3d 1106, 1111 (9th Cir. 2009); ACLU v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any

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material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 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); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

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The opposing party's evidence is to be believed, and all justifiable 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; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. 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); see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir. 2003). 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 Fitzgerald v. El Dorado Cnty., 94 F.Supp.3d 1155, 1163 (E.D. Cal. 2015); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

FACTUAL BACKGROUND²

On January 25, 2015, at approximately 11:50 a.m., Keith McFarland ("Keith") went to the Clovis PD lobby to complain about the conduct of his older brother Lyle McFarland. JUMF 1.

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Keith reported that McFarland had threatened to kill him. DUMF 1. Keith spoke to dispatch at the lobby and then Keith and Rios went into an interview room. See JUMF 2. Keith informed Rios that he had an ongoing issue with his brother throughout their lifetime, specifically an incident in Carlsbad where there was a physical fight between the brothers. Id.

Keith reported that McFarland had left a voice message on Keith's answering machine/voice mail. See DUMF 2. Rios listened to the voice message and recalls that it was a low, gravelly voice, that sounded angry and the statement was something to the effect of "you will pay, the time is now." Rios Depo. 23:7-12. The message that McFarland left Keith was: "What's your excuse, Keith? You owe me. I need to collect. Let's see. I don't know how I am going to collect for my arm, but I'll figure something out. Yeah. You're going to pay now, it's time." JUMF 5. The message was left on January 23, 2015, but it was not received until January 24, 2015. See Drooyan Dec. Ex. 22 at p. 198; Doc. No. 50-2 at #8; Rios Depo. 22:15-23:1. Keith told Rios that "the voice message was a threat to harm him," although it did not say physically harm him, and Keith "was concerned due to the tone of the message." See JUMF 6. According to the "Narrative" section of the "Online Law Enforcement Warrantless Arrest Declaration" of Rios (Drooyan Opp. Dec. Ex. 4), the tone of the voice message that McFarland left on Keith's phone was threatening but not specific. See PUMF 10.³ Keith also told Rios that, at 8:53 a.m. that day, he had received an electronic message/text message from McFarland on January 25 that was a picture of shot gun shells spelling out "FUCK U" on a night stand, and there was also a hunting knife standing erect on the nightstand. See JUMF 7. Keith showed the picture to Rios.⁴ Id. McFarland had sent this text message to Keith at 3:00 a.m. on January 25. See JUMF 8. Keith informed Rios that McFarland had a shotgun. See JUMF 10.

Keith also reported to Rios that "there had been long-term kind of volatile history between [Keith] and his brother, and that according to [Keith], [McFarland], over time, had become more

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and more hostile and verbally aggressive to the point where at least a year prior, [Keith] decided to actually block [McFarland]'s phone number from allowing texts and phone numbers." JUMF 3. Some of McFarland's behavior that Keith told Rios included: (1) McFarland came by Keith's home at odd hours because on one occasion Keith found a gift that he had given McFarland smashed to pieces in Keith's driveway; (2) McFarland sent text messages or made phone calls in which he threatened to destroy Keith's business and called Keith an abuser; (3) McFarland sent a text for Keith to watch his back when he is hanging around downtown Clovis and that McFarland was going to drop Keith where he stands; and (4) a group that follows people around would grab Keith if Keith was driving haphazardly and under the influence, and that Keith was going down (or words to that effect). See DUMF's 9, 10; Keith Depo. 99:17-25.⁵ Keith told Rios that, "within the past few weeks, few days when the block expired, [Keith] immediately began receiving phone calls and texts from his brother again." JUMF 4. Keith was noticeably fearful. See DUMF 14. Rios reported that Keith said he (Keith) believed McFarland was threatening to kill him with a shotgun, that he was in fear of his life, and that he believed that the threat was imminent.⁶ See Drooyan Dec. Ex. 4. Keith wanted criminal charges pursued against McFarland. See JUMF 11.

Rios made the decision to arrest McFarland for violation of California Penal Code § 422 ("§ 422") based on his interview with Keith, the voice message that Keith played for Rios, the texted photo of the shotgun shells and hunting...