Padron v. Lara
| Decision Date | 11 May 2018 |
| Docket Number | Case No. 1:16-cv-00549-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | ALFONSO PADRON, Plaintiff, v. ISRAEL LARA, Defendant. |
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT ON FEDERAL CLAIM AND CLOSE THIS ACTION
Plaintiff Alfonso Padron, proceeding pro se and in forma pauperis, filed this civil rights complaint pursuant to 28 U.S.C. § 1983 on April 19, 2016. (ECF No. 1.) Currently before the Court are the parties' cross motions for summary judgment. (ECF Nos. 36, 37-40.)
Plaintiff filed a tort claim regarding a January 6, 2016 incident with the City of Parlier on February 10, 2016. (Compl. 2, ECF No. 5.) Defendant Israel Lara placed Plaintiff's tort claim on the civil consent calendar on February 17, 2016, and again on April 20, 2016. (Id.) The City Council voted on Plaintiff's tort claim on the consent calendar rather than during closed session. (Id.)
/ / / Plaintiff filed the complaint in this action on April 19, 2016. (ECF No. 1.) On this same date, Plaintiff consented to the jurisdiction of the magistrate judge. (ECF No. 2.) On May 6, 2017, Plaintiff's complaint was screened and dismissed with leave to amend for failure to state a claim. (ECF No. 4.)
Plaintiff filed an amended complaint on May 27, 2016. (ECF No. 5.) On June 2, 2016, Plaintiff's amended complaint was screened and findings and recommendations issued recommending dismissing certain claims and defendants from the action. (ECF No. 6.) Plaintiff lodged a second amended complaint on June 6, 2016, which was stricken because Plaintiff had not been granted leave to amend. (ECF Nos. 7, 8.) On June 29, 2016, District Judge Lawrence J. O'Neill adopted the findings and recommendations. (ECF No. 9.) The City of Parlier was dismissed from this action and Plaintiff was to notify the court if he wished to file a second amended complaint or wanted to proceed on the claims found to be cognizable. (Id.) On August 4, 2016, Plaintiff filed a notice that he did not wish to file an amended complaint but wanted to proceed on the cognizable claim against Defendant Lara. (ECF No. 10.) This action is proceeding on the amended complaint against Defendant Lara for violation of Plaintiff's right to privacy under the First Amendment and state law claims of violation of the right to privacy and negligence. (ECF No. 9 at 1.)
On August 9, 2016, an order issued finding service of the complaint appropriate and forwarding Plaintiff service documents for completion and return. (ECF No. 11.) Plaintiff returned the documents, and on August 22, 2016 an order issued directing the United States Marshal to initiate service of process on Defendant Lara. (ECF No. 13.) On November 21, 2016, Defendant Lara filed an answer. (ECF No. 14.) Defendant Lara consented to the jurisdiction of the magistrate judge on November 29, 2016, and this action was reassigned to the undersigned for all purposes. (ECF Nos. 18, 20.)
The scheduling order in this action issued on February 9, 2017. (ECF No. 25.) Plaintiff filed a motion for disqualification of the magistrate judge which was denied on March 6, 2018. (ECF Nos. 27, 28.) On March 13, 2018, the parties submitted pretrial statements. (ECF Nos. 29, 30.) On March 14, 2018, the parties were required to submit supplemental briefing regardingwhether Plaintiff had a privacy right in his address and phone number under the United States and California Constitutions. (ECF No. 31.) The parties submitted supplemental briefing on March 20, 2018. (ECF No. 32, 33.)
The pretrial conference was held on March 22, 2018. (ECF No. 34.) Plaintiff appeared pro per and counsel Gregory Myers appeared for Defendant Lira. (Id.) Pursuant to the discussion at the pretrial conference an order issued on March 23, 2018, vacating the trial and a briefing schedule was set for the parties to file motions for summary judgment. (ECF No. 35.)
On April 9, 2018, Defendant Lira filed a motion for summary judgment. (ECF No. 36.) Plaintiff filed a motion for summary judgment on April 10, 2018. (ECF Nos. 37-40.) Defendant Lira filed an opposition to Plaintiff's motion for summary judgment on April 18, 2018. (ECF No. 41.) Plaintiff filed an opposition to Defendant's motion for summary judgment and a reply to Defendant's opposition on April 26, 2018. (ECF No. 42, 43.)
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 322.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Each party's position,whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
Plaintiff seeks summary judgment on his claim for violation of his right to privacy under the United States Constitution and violation of his right to privacy and negligence under California law. In support of his motion for summary judgment, Plaintiff presents his complaint for damages filed in Fresno County Superior Court on January 25, 2016 (ECF No. 39 at 18-31), and what appears to be the associated tort claim filed with the City of Parlier (id. at 18-42); Plaintiff's notice of violation of the Brown Act (id. at 44-48); Plaintiff's tort claims in this action (id. at 50-56, 69-72); and Parlier City Council Meeting Agendas from February 14, 2015 through February 21, 2018 (id. at 74-132); Plaintiff's first amended complaint filed in this action (id. at 58-65); and a November 1, 2017 deposition of Rogelio Fernandez, M.D. (id. at 134-184).
Defendant responds that the information Plaintiff contends was disclosed is not the type of information protected by the United States Constitution and he is entitled to qualifiedimmunity. Defendant further argues that Plaintiff waived any confidentiality under state law and objects to the deposition of Roger Fernandez on the grounds that it is hearsay and Plaintiff did not disclose Dr. Fernandez as an expert in this matter.
Plaintiff argues that by admitting that he had a right to informational privacy, Defendant also admits an expectation of privacy.1 (ECF No. 42 at 2.) Plaintiff cites to rules requiring that he provide the state court with his personal information to support the argument that he did not voluntarily disclose his information. (Id. at 2-5.)
Initially, Rule 56 of the Federal Rules of Civil Procedure provides that a party must support a fact that cannot be or is genuinely disputed by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). In support of his motion for summary judgment, Plaintiff filed a declaration on April 10, 2018. (ECF No. 38.) "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Whenever, a rule requires that a matter be supported by a declaration or affidavit, 28 U.S.C. § 1746 requires that the declarant must declare, certify, verify or state that it is made under penalty of perjury and that it is true and correct. Plaintiff's declaration does not contain such a certification. Therefore, it does not meet the requirements of a declaration or affidavit under Rule 56. Further, Plaintiff's declaration, although contending that Defendant Lira was City Manager...
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