Plymale v. Dyer

• Decision Date: 16 November 2011
• Docket Number: Case No. CV F 09–0802 LJO MJS.
• Citation: 837 F.Supp.2d 1077
• Court: U.S. District Court — Eastern District of California
• Parties: Sean PLYMALE, Plaintiff, v. Jerry DYER, et al., Defendants.

837 F.Supp.2d 1077

Sean PLYMALE, Plaintiff,

v.Jerry DYER, et al., Defendants.

Case No. CV F 09–0802 LJO MJS.

United States District Court, E.D. California.

Nov. 16, 2011.

Rayma Church, Emerson, Corey, Sorensen, Church & Libke, Fresno, CA, for Plaintiff.

James B. Betts, Joseph D. Rubin, Betts & Wright, Fresno, CA, for Defendants.

SUMMARY JUDGMENT DECISION (Doc. 41.)

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Defendants Jerry Dyer (“Chief Dyer”) and Mark Salazar (“Sgt. Salazar”) seek summary judgment in the absence of evidenceto support plaintiff Sean Plymale's (“Officer Plymale's”) ¹42 U.S.C. § 1981 (“ section 1981”) discrimination claims arising from an internal affairs (“IA”) investigation in connection with the arrest and charging of a suspect. Officer Plymale's opposition papers appear to claim that defendants treat Hispanic police officers more favorably than white officers in IA investigations. This Court considered Chief Dyer and Sgt. Salazar's (collectively “defendants' ”) summary judgment motion on the record ² and VACATES the November 28, 2011 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court GRANTS defendants summary judgment.

BACKGROUND

Summary

Sgt. Salazar conducted an IA investigation into the arrest and charges against Rolando Celdon (“Mr. Celdon”). After the investigation, disciplinary action resulted in a decision to terminate Officer Plymale, who is white. However, after administrative appeals, Officer Plymale was reinstated with a letter of reprimand. Officer Plymale proceeds on his First Amended Complaint for Damages (“FAC”) to allege that he was subjected to IA investigations and disciplinary action which were racially motivated or biased against him. Defendants seek summary judgment in that Officer Plymale is unable to raise factual issues that he was subjected to adverse employment action based on discrimination. Defendants further contend that immunities bar Officer Plymale's claims. Officer Plymale's opposition papers do not include points and authorities and chiefly respond to defendants' factual statement.

Initial Investigation Into Mr. Celdon's Arrest

On October 10, 2005, Officer Plymale and three other City police officers were involved in Mr. Celdon's arrest. Mr. Celdon claimed that during the arrest, he was punched, kicked, bitten by a police dog, tasered, and shot by a less lethal shotgun. Mr. Celdon was taken for medical care and booked in jail.³

In response to a complaint from an assisting City police officer, an IA investigation was commenced on October 10, 2005. As commander of the IA division, former City police Lieutenant Art Alvarado (“Lt. Alvarado”) ⁴ assigned the IA investigation to then Sgt. Salazar.⁵ In his declaration, Lt. Alvarado states that Sgt. Salazar's “responsibility was to investigate the matter to determine if he believed the evidence supported a violation of policy.” Sgt. Salazar made no recommendation as to discipline.

Sgt. Salazar devoted approximately 300 hours to the investigation which he characterizes as “complex.” Sgt. Salazar interviewed more than 20 individuals and reviewed “numerous” documents. Sgt. Salazar declares that he “prepared an approximately 70 page report ⁶ which summarized my investigation and findings in which, in part, I found that Plaintiff violated several rules and regulations in his conduct at the scene and/or afterwards” and including joking about the use of force at a briefing, material inaccuracies in his initial report, moving evidence at the scene, and denial that he witnessed use of force by other officers. Sgt. Salazar concluded that Officer Plymale did not use excessive force as to his canine application, taser use, and punching Mr. Celdon. Sgt. Salazar's initial investigation report was forwarded to Chief Dyer.

Additional Investigation Into Officer Plymale's Conduct

On February 21, 2006, Chief Dyer issued a Notice of Proposed Disciplinary Action to Plymale to review charges and investigation material, to allow Officer Plymale to offer evidence and mitigating circumstances, and to discuss issues at a Skelly meeting. At a March 27, 2006 Skelly hearing with Chief Dyer, Officer Plymale and his attorney raised issues regarding the incident and investigation. Based on issues raised by Officer Plymale and other officers, Chief Dyer directed the IA division to conduct additional work.

Because Sgt. Salazar had left the IA division, City police Sergeant Mindy Medina (“Sgt. Medina”) ⁷ conducted further investigation. Sgt. Medina analyzed Sgt. Salazar's initial investigation report and underlying witness interviews, interviewed or re-interviewed approximately ten witnesses, and reviewed additional documents. On July 10, 2006, Sgt. Medina provided Chief Dyer her 24–page memorandum which concluded:

A review of this investigation determined the original findings were correct and warranted no changes. Although the issue regarding Manfredi keeping Coleman's report open for over an hour was resolved, the integrity violation still stands based on the other circumstances outlined in the original investigation.

Termination Decision

On July 24, 2006, Chief Dyer issued an Amended Notice of Proposed Disciplinary Action and conducted another Skelly hearing with Officer Plymale and his attorney.⁸ Chief Dyer decided to terminate Officer Plymale and issued a September 6, 2006 termination order which stated in part:

You wrote a police report in regards to the incident 20 hours after it occurred. Your draft report said the suspect picked up a beer bottle while struggling with the K–9. The next night, you changed your report to read that the suspect reached for the beer bottle, but did not pick it up. Your report did not contain any information as to how the bottle was later recovered for evidence.⁹ ...

During the Internal Affairs investigation, you said you did not see any force used by the two assisting officers. You said you did not hear any comments by the same two officers about a “nut shot” while on the scene. You said you walked away and you never saw a struggle between the suspect and the officer that kicked him and didn't know until afterwards that the suspect had been struck with less lethal rounds. You said you didn't watch what was happening between the suspect and the officer dealing with him even though you knew the suspect was bigger than the officer, you believed the suspect was under the influence of a possible controlled substance, the suspect had a high pain tolerance, the dog bite had had no effect on the suspect and the taser had no effect on the suspect.

Officers who witnessed the incident said you were facing the suspect and were in a position to clearly see the force used against him. By your own estimate, you were only ten feet away from the suspect and the officer kicking him. By all accounts, the scene was well lit enough for you to see what was happening ten feet in front of you. Based on your statement and the statement of witnesses, it is unreasonable to believe you did not see any force used against the suspect by other officers that night.

You assumed that a beer bottle located about 75 yards away from the suspect was the same shiny object you saw while the suspect was struggling with the K–9. You tampered with the evidence by picking up the beer bottle and dropping it next to the suspect. Your report did not explain how the bottle was recovered and why you believed it was the one nearby the suspect, even though you found it about 75 yards away. The beer bottle was the basis for which you charged the suspect with the felony PC 417.8, assaulting a peace officer with a dangerous weapon.

Appeal Of Termination Decision

On Officer Plymale's appeal of the termination decision, the hearing officer's October 2, 2007 report recommended a written reprimand rather than termination. The hearing officer noted:

Beer Bottle: Changing of the report in this regard, while neglectful, does not rise to justify a heavy level of discipline relative to other events.

Changing the Report: Failure to remove the 417.8 charge against the suspect is not at fault. The District Attorney has a much, or more, authority in reviewing reports to determine whether or not “brandishing of a weapon” should continue. While neglectful on the part of Appellant, this could have been caught at various levels by various persons in the chain of command.

The Viewing of Force by Other Officers: The City did not carry its burden of proof that the Appellant did, or should have, observed and reported on inappropriate use of force. The Appellant's perception is reasonable that he concentrated on his own injury, and that potentially of Tymo, rather than concentrating on his fellow officers....

...

Falsification of Report: As indicated above, the Appellant did wrongfully move the bottle, but the City carried no convincing burden that his report was falsified, rather than merely changed for clarity.

...

The Department concluded that the Appellant's change in his Incident Report constituted false information. That, again, is “stretching” his actions to something negative and nefarious, rather than merely clarifying. This not to say that Mr. Plymale did not attempt to fault the suspect more than actually occurred....

...

... The City shall issue a notice of Written Reprimand for the record, relative to the undersigned's findings and conclusions that the Appellant did violate City rules relative to the movement of evidence and inappropriate verbal remarks at roll call.

The Civil Service Board's (“CSB's”) November 1, 2007 order adopted the hearing officer's recommendations, ordered Officer Plymale reinstated with a letter of reprimand, and found that Officer Plymale:

1. “[E]ngaged in misconduct at the scene of a K9 capture and arrest of a suspect on October 10, 2005, by moving a beer bottle that Appellant assumed was a shiny object that the suspect was holding next to the suspect. Appellant moved the beer bottle seventy-five...