Willis v. Mullins, CIV-F-04-6542 AWI WMW.

• Decision Date: 25 September 2007
• Docket Number: No. CIV-F-04-6542 AWI WMW.,CIV-F-04-6542 AWI WMW.
• Citation: 517 F.Supp.2d 1206
• Parties: Gary WILLIS, Plaintiff, v. Joseph MULLINS, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

Page 1206

517 F.Supp.2d 1206

Gary WILLIS, Plaintiff, v. Joseph MULLINS, et al., Defendants.

No. CIV-F-04-6542 AWI WMW.

United States District Court, E.D. California.

September 25, 2007.

Stephen Yagman, Yagman, Yagman & Reichmann, Venice, CA, for Plaintiff.

Jacob J. Rivas, Michael G: Marderosian, Michael G. Marderosian, Marderosian, Runyon, Cercone, Lehman & Armo, Fresno, CA, Virginia Gennaro, City Attorney's Office, Mark Lloyd Nations, Bakersfield, CA, James Edmund Flynn, Attorney General of the State of California, Sacramento, CA, for Defendants.

ORDER RE: SUMMARY JUDGMENT

ANTHONY W. ISHII, District Judge.

The Defendants in this case have made motions for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes the motions.

I. History

Gary Willis ("Plaintiff') was a registered occupant of the E-Z 8 Motel in Bakersfield, CA on March 27, 1996. Police received reports of heavy traffic from that room and were informed it was registered under Plaintiff's name. A Kern County Narcotics. Enforcement Team consisting of four members (Bakersfield Police Officer Joseph Mullins; Bakersfield Police Officer Silvius; Kern County Deputy Sheriff Hood; and California State Parole Officer Diane Mora) were sent to investigate.¹ Defendant Mullins consulted a list of parolees generated by the California Department of Corrections and distributed to local police departments on a roughly monthly basis ("Parole Roster"). He presented the Parole Roster to Defendant Mora; she confirmed the Parole Roster indicated that Plaintiff was on parole and subject to search. After announcing their presence and entering the motel room, the officers found two individuals, Plaintiff and Kathleen Moye, inside. Also visible were a knife, a syringe, and a briefcase. The officers announced the commencement of a parole search. Plaintiff informed Defendant Mullins he was no longer on parole and provided his parole discharge papers. Defendant Mora left to seek telephone confirmation of Plaintiff's parole status. In fact, Plaintiff had been discharged from parole nine months prior. While the call was taking place, Defendant Mullins detained Plaintiff outside the room while Defendants Silvius and Hood talked with Ms. Moye inside the room. Ms. Moye admitted to recently using methamphetamine, stated that she put a speed pipe in the briefcase, and consented to search of the briefcase. Defendant Mullins brought Plaintiff back into the room. Defendants Mullins, Silvius, and Hood opened the briefcase. Based on evidence found within, Plaintiff was convicted of possession of methamphetamine for sale (Cal. Health & Safety Code § 11378) and possession of narcotics paraphernalia (Cal. Health & Safety Code § 11364). He ultimately served six years in state prison.

Plaintiff had made a motion to suppress evidence, which the California trial court denied. On appeal, the Fifth District Court of Appeal found the entry constitutionally invalid and the good faith exception to the exclusionary rule inapplicable, but nonetheless affirmed the denial of suppression based on the finding that the officers had sufficient probable cause to search the briefcase based on Ms. Moye's statements to Defendant Silvius. The Fifth District's rationale was that the "freeze" in search was a reasonable response to the uncertainty concerning Plaintiff's parole status. People v. Willis, 71 Cal.App.4th 530, 541, 83 Cal.Rptr.2d 895 (Cal.Ct.App.1999). On appeal, the attorney general conceded the Fifth District's rationale for denying the motion to suppress was erroneous. People v. Willis, 28 Cal.4th 22, 25, 120 Cal.Rptr.2d 105, 46 P.3d 898 (Cal.2002). The California Supreme Court overturned Plaintiffs conviction on June 3, 2002, finding that evidence from the search must be suppressed as the good faith exception did not apply. People v. Willis, 28 Cal.4th 22, 38, 120 Cal.Rptr.2d 105, 46 P.3d 898 (Cal.2002). Plaintiff was released on August 31, 2002. Plaintiff first filed this suit in the Central District of California on May 3, 2004. He filed his amended complaint (the operative complaint) on September 16, 2004. Transferred File, Doc. 14. The case was then transferred to the Eastern District of California due to improper venue.

The amended complaint contained nine causes of action: (1) monetary relief under 42 U.S.C. § 1983 for violation of Fourth and Fourteenth Amendment rights; (2) monetary relief under 42 U.S.C. § 1983 for conspiracy to commit count one; (3) monetary relief under 42 U.S.C. § 1983 for a policy, practice, procedure, and custom of committing Fourth and Fourteenth Amendment violations; (4) monetary relief under 42 U.S.C. § 1983 for the City's policy of indemnifying police officers in, civil rights cases; (5) declaratory relief under 28 U.S.C. § 2201 finding that there is a custom, pattern and practice of Fourth and Fourteenth Amendment violations by police in California; (6) injunctive relief under 28 § 1651 preventing all Defendants from engaging in violations of the Fourth and Fourteenth Amendment; (7) monetary relief under RICO for loss of actual employment and employment opportunities; (8) monetary relief for conspiracy to commit count seven; and (9) monetary relief under Cal. Civ.Code § 52.1 for violation of Fourth and Fourteenth Amendment rights. See Transferred File, Doc. 14. As the result of previous motions, claims three and nine were dismissed and the claims against the officers are limited to their individual capacities. Docs. 33 and 136. Defendant Hood has taken no part in these various motions as he was not initially served with the complaint in this case.

At present, Defendant Mora and the Bakersfield Defendants have made separate motions for summary judgment, or in the alternative, summary adjudication. Docs. 141 and 142. Plaintiff filed a single opposition to both. Doc, 148. Simultaneously, Plaintiff asks for additional discovery under Fed. R. Civ. Proc. 56(f) and Chuman certification. Docs. 146 and 147.

II. Legal Standards

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Potter v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).

Under summary judgment practice, the moving party "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. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), quoting Fed. R. Civ. Proc. 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Indeed, summary judgment should be entered, 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 that party's case, and on which that party will bear the burden of proof at trial. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-9, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979).

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Strong v. France, 474 F.2d 747, 749 (9th Cir.1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a...