Tachiquin v. Stowell

• Decision Date: 04 May 1992
• Docket Number: No. CV-F-91-340 OWW.,CV-F-91-340 OWW.
• Court: U.S. District Court — Eastern District of California
• Parties: Javier TACHIQUIN, Plaintiff, v. Charles A. STOWELL, J.M. Donnelly, Charles Hamm, Defendants.

789 F. Supp. 1512

Javier TACHIQUIN, Plaintiff, v. Charles A. STOWELL, J.M. Donnelly, Charles Hamm, Defendants.

No. CV-F-91-340 OWW.

United States District Court, E.D. California, Fresno Division.

May 4, 1992.

COPYRIGHT MATERIAL OMITTED

Carolyn D. Phillips, Milrod & Phillips, Fresno, Cal., for plaintiff.

Daniel Bensing, Asst. U.S. Atty., Fresno, Cal., for defendants.

MEMORANDUM OPINION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

WANGER, District Judge.

Defendants move for summary judgment in this Bivens action arising out of the warrantless arrest of plaintiff during the execution of a search warrant.

I

BACKGROUND

In late May or June of 1990, Thomas C. Allen, a police officer with the Modesto Police Department and assigned to the Stanislaus County Drug Enforcement Unit, provided information to the Drug Enforcement Administration ("DEA") about an ongoing investigation of marijuana cultivation at several farms located in Stanislaus County owned by a Mr. Naraghi. The source of Officer Allen's information about marijuana cultivation is a confidential informant who had provided accurate and reliable information in the past. (Allen Dec. p. 2; Rhea Dec. p. 2; Seal Dec. ¶ 6; Stowell Dec. ¶ 13 & 14)

In late May of 1990 the confidential informant observed approximately 300 marijuana plants growing along a creek on the property located at 17428 Keyes Road in Stanislaus County. The confidential informant picked several leaves from these plants and brought them to Modesto Police Officer Allen who tested them and determined the leaves to be marijuana. (Stowell Aff. ¶ 15.)

The confidential informant informed law enforcement officers that an individual named "Chaparo" and a senior foreman on the 17428 Keyes Road property named "Javier" were involved in growing marijuana. The confidential informant stated that he had met with both the plaintiff and Chaparo in a trailer house on the property and drank beer. In one of these meetings, the confidential informant was shown the growing marijuana by plaintiff and Chaparo. (Jacques Dec. ¶ 3, Donnelly Aff. July 2, 1990, ¶¶ 4-5) ("... Both Chaparo and Javier aside from their duties on the ranch, were cultivating a large amount of marijuana in ditch and creek beds ..."); Stowell Dec. ¶ 5; Amended Complaint, ¶ 8 ("the confidential informant named two individuals "Chaparo" and "Javier" as being responsible for the cultivation.").

The confidential informant told officer Allen that "Chaparo" was a large scale dealer in marijuana and "has seen `Chaparo' deal pounds of marijuana at the single wide mobile home located on the property at 17428 Keyes Road, Denair, California" (Stowell Aff. ¶ 16) and that the individual later identified as plaintiff, Javier Tachiquin, was a manager or caretaker of the property, who was involved in marijuana cultivation. Officer Allen provided that information to Special Agent Stowell before the arrest of plaintiff. (Supp.Allen Dec. ¶ 2(c).)

Javier Tachiquin worked as a foreman on the property known as Naraghi Farms, 17428 Keyes Road, Denair, Stanislaus County, California, at the time of the search on July 2, 1990. (Amended Complaint ¶ 9.) Plaintiff has no evidence that any other individual, who worked at the 17428 Keyes Road property at the time of the search, had a first name of "Javier."

The confidential informant told law enforcement officers that the foreman known as "Javier" was Chaparo's "boss" in marijuana cultivation at 17428 Keyes Road. (Donnelly Aff. ¶ 5; ("... A foreman on the property named `Javier' was also involved in the cultivation of marijuana and was in fact, `Chaparo's' boss ..."); Stowell Dec. ¶ 5 ("... Tachiquin had delegated responsibility to `Chaparo' to sell marijuana and that `Chaparo' would get a portion of the profits in the sale of marijuana for his work.") Plaintiff, in his affidavit filed in opposition to defendant's motion for summary judgment did not disclaim involvement in or knowledge of the marijuana cultivation.

Agent Stowell conducted a "fly-over" of the property at 17428 Keyes Road and observed numerous marijuana plants growing on the property. (Stowell Dec. ¶ 6; Donnelly Aff. ¶ 6; Stowell Aff. ¶ 24: "... On June 26, 1990, at approximately 1:00 p.m. your affiant ... flew in a DEA aircraft over the property located at 17428 Keyes Road ... and observed approximately 50-100 Cannabis plants growing in the creek....")

Based upon the affidavit of Special Agent Charles Stowell, federal law enforcement officers obtained a search warrant to search the property at 17428 Keyes Road. (Stowell Aff.; Stowell Dec. ¶ 7.) On July 2, 1990, federal and state law enforcement officers conducted a search of the premises at 17428 Keyes Road, Denair, Stanislaus County, California, where they discovered numerous marijuana plants growing in the creek bed; both plaintiff and "Chaparo," later identified as Ysidro Gonzalez-Rodriguez, were then arrested. (Stowell Dec. ¶ 9; Donnelly Aff. ¶¶ 7-9.)

On July 2, 1990, a criminal complaint charging plaintiff and Gonzalez-Rodriguez with conspiracy to cultivate marijuana was presented to U.S. District Judge Edward Dean Price, supported by the affidavit of DEA Agent Donnelly. Judge Price determined there was probable cause for the arrest by signing the criminal complaint against plaintiff and Gonzalez-Rodriguez. Exhibit B-2. The complaint against Javier Tachiquin and Ysidro Gonzalez-Rodriguez was dismissed by the United States Attorneys Office after it was informed the confidential informant would not testify. (Dec. Patrick Hanly.)

STANDARDS ON MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Anderson v. Liberty Lobby, 477 U.S. 242, 252-56, 106 S.Ct. 2505, 2512-14. (1986). The Court in Celotex elaborated:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.

477 U.S. at 322-323, 106 S.Ct. at 2552. This standard applies in the Ninth Circuit. Shaw v. Lindheim, 908 F.2d 531, 536-537 (9th Cir.1990); U.S. v. Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 490 (9th Cir. 1990).

The Court is not obligated to consider matters not specifically brought to its attention. Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988). The non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, supra, 477 U.S. at 249, 106 S.Ct. at 2510. Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under rules governing admission of evidence generally. Hal Roach Studios, Inc. v. Feiner & Co., Inc., 883 F.2d 1429, 1437 (9th Cir.1989).

The more implausible the claim or defense asserted by the opposing party, the more persuasive its evidence must be to avoid summary judgment. Matsushita v. Zenith Radio, 475 U.S. 587, 106 S.Ct. at 1356. Nevertheless, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor." Anderson v. Liberty Lobby, supra, 477 U.S. at 255, 106 S.Ct. at 2513. The Court's role on summary judgment, however, is not to weigh the evidence (issue resolution), but rather it is issue finding. Id.

The Heightened Pleading Standard.

A heightened pleading standard applies to claims asserted against federal officials in their individual capacities. This standard requires plaintiffs to state facts with particularity that demonstrate "who did what to whom and why." Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982), cert. den., 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1301 (1983).

This heightened pleading standard was expressly adopted by the Ninth Circuit in Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir.1991):

We therefore adopt a heightened pleading standard in cases in which subjective intent is an element of a constitutional tort action. We hold that in order to survive a motion to dismiss, plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent. "The allegations of facts must be specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity." (emphasis added)

Id. at 1386, quoting Whitacre v. Davey, 890 F.2d 1168 (D.C.Cir.1989), cert. den., ___ U.S. ___, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990).

The Branch Court relied heavily on the D.C. Circuit's numerous decisions discussing the scope and application of the heightened pleading standard. See, e.g., Siegert v. Gilley, 895 F.2d 797, 802 (D.C.Cir.1990), aff'd ___ U.S. ___, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ("discriminatory intent must be pleaded with specific, discernible facts or offers of proof ..."); Whitacre v. Davey, supra, at 1171 n. 4; Martin v. Malhoyt, 830 F.2d 237, 254 (D.C.Cir.1987) (plaintiffs must "at the very least specify the `clearly established' rights they allege to have been violated with ... precision"), reh'g denied, 833 F.2d 1049 (D.C.Cir.1987); Smith v. Nixon, 807 F.2d 197, 200 (D.C.Cir. 1986) ("bare allegations of improper purpose, like the bare allegations of malice rejected in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), do not suffice to drag officials...