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June 7, 2002


The opinion of the court was delivered by: Rudi M. Brewster, United States Senior District Judge



Before the Court are Defendants' Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues, Defendants' Objections to Plaintiff's Opposition, and Plaintiff's Motion to Continue Hearing. The Court determined it appropriate to decide these matters without oral argument as permitted by Civil Local Rule 7.1(d)(1). For the reasons below, the Court denies Defendants' Objections to this Court's consideration of plaintiffs late-filed opposition brief; denies Plaintiffs motion to continue hearing, grants Defendants' Motion for Summary Adjudication of Issues as to the federal claims, and dismisses without prejudice the remaining pendent state law claims.


Mark Martin is suing the City of Oceanside and police officers Shawn Kelly and entered Martin's house without a warrant and pointed loaded guns at him. Martin's complaint asserts two federal claims and four state common law claims: (1)a 42 U.S.C. § 1983 claim against the police officers for alleged violation of Martin's Fourth Amendment rights; (2)a 42 U.S.C. § 1983 claim against the City for unlawful policies, customs, or habits; negligence.

At about 4:30 p.m. on December 28, 1999, Officer Shawn Kelly was dispatched to Martin's residence to "check the welfare" of Martin's roommate, Traci Trotman. Ms. Trotman's father, Dr. Ronald Trotman had called the Oceanside Police Department from Portland, Oregon urging that the police check on Ms. Trotman because he had been unable to reach her by phone for several days and was "extremely concerned and felt she could be in trouble." Defs.' Mem. P. &. A. Supp. Summ. J. at 1; Dec. Dr. Ronald Trotman ¶ 2.

Officer Kelly went to Martin's home at 4904 Amador in Oceanside. He noticed Ms. Trotman's car parked outside (Trotman's father had given the police a description of her car). Officer Kelly knocked on the door and rang the doorbell at 4904 Amador, but no one answered.

In fact, both Martin and Trotman were inside the house. Although Martin saw a uniformed police officer at the door, he did not answer the door because he "assumed" his "ex-wife had called the police and made a false accusation." Dec. Martin ¶ 9. While Officer Kelly knocked at the door, Martin "called [his] lawyer in [his] divorce case and asked him if [he] had to respond to this intrusion." Id.

When no one answered the door, Officer Kelly had dispatch call Trotman's phone number; dispatch did so and the line was answered by Trotman's answering machine. Defs.' Mem. P. & A. Supp. Summ. J. at 1. Officer Kelly then walked around the house to a side door (according to plaintiff; he got there by opening a latched gate and walking through the side yard). Defs.' Mem. P. & A. Supp. Summ. J. at 1.; Pl.'s Mem. P. & A. Opp. at 2. The side door was unlocked (defendants' word is "unsecured") but closed. Pl.'s Mem. P. & A. Opp. at 2. Officer Kelly opened it and entered plaintiffs garage. Kelly asserts that he entered after "identifying himself with the Oceanside Police;" plaintiff disputes that Kelly announced his entry. Kelly Dec. ¶ 5. Pl.'s Mem. P. & A. Opp. at 2.

Inside the garage, Officer Kelly found and tried an unlocked door that led into the main house. "Fearing that a crime could be in progress," Officer Kelly exited the garage and requested an additional police unit. Kelly Dec. ¶ 5.

Officer Kelly then talked to the next door neighbor, who told Kelly that she had seen a female at the residence on Christmas day and a male at the residence the day before, that the occupants' cars were in the driveway, and that they should be home. Kelly Dec. ¶ 6. Officer Kelly "went back to the front door and started banging loudly on the door and pushing the door bell repeatedly. This went on for several minutes. There was no answer." Id., ¶ 7.

Officer Benjamin Ekeland arrived as the backup unit Officer Kelly had requested. Officer Kelly "explained the situation to him." Kelly Dec. ¶ 8. Both officers went back to the unlocked side door. The officers claim they "loudly identified [them]selves as Oceanside Police." Martin claims they did not identify themselves at all. However, Martin by then was watching from Ms. Trotman's upstairs bedroom window "and could see . . . that defendant Kelly was wearing a police uniform." Pl.'s Mem. P. & A. Opp. at 3.

The officers entered the main house through the unlocked door in the garage. They entered "with their guns drawn for their own safety and that of the occupants." Defs.' Mem. P. & A. Supp. Summ. J. at 2. Using flashlights so they could see (it was dark outside by this time), the officers checked the downstairs area for people but found no one. They then started up the staircase to the second floor.

Meanwhile, Martin and Trotman were still in Trotman's bedroom. Martin had started his camcorder to videotape the officers. At the direction of Martin, Trotman came out of the bedroom to see what the officers wanted. The officers told her not to move and to identify herself. Martin then came out of the bedroom and stood next to Trotman. The officers, who were standing about 15 to 20 feet away, pointed their guns at Martin and Trotman. Martin Dec. ¶ 17. Trotman identified herself; and the officers holstered their guns. Defs.' Mem. P. & A. Supp. Summ. J. at 3. About four minutes elapsed from the time the officers entered the house and the time they notified dispatch that they were okay. Id.


A. Motion for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together the moving party is entitled to judgment as a matter of law." In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

Summary judgment must be granted if the party responding to the motion fails "to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidence offered need not be in a form admissible at trial to avoid summary judgment. Id., at 324. When the moving party does not bear the burden of proof; summary judgment is warranted by demonstration of an absence of facts to support the non-moving party's case. Id. at 325. The Court must determine whether evidence has been presented that would enable a reasonable jury to find for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 249-252. If the Court finds that no reasonable fact-finder could, considering the evidence presented by the non-moving party and the inferences therefrom, find in favor of that party, summary judgment is warranted.

If the Court is — unable to render summary judgment upon an entire case and finds that a trial is necessary, it shall, if practicable, grant summary adjudication for any issues as to which, standing alone, summary judgment would be appropriate. See Fed.R. Civ. P. 56(d); See also California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998), cert. denied (Oct. 5, 1998).

B. § 1983 Claim Asserting Fourth Amendment Violations Due to Unlawful Search, Unlawful Seizure, or Excessive Force-Qualified Immunity

A private right of action exists against persons who, acting under color of state law, violate a citizen's federal constitutional or statutory rights. 42 U.S.C. § 1983. The defense of qualified immunity, however, protects certain § 1983 defendants from the burden of litigation. A court presented with the issue must determine whether police officers sued under § 1983 have a valid qualified immunity defense before proceeding to the merits of the § 1983 claim because "[q]ualified immunity is an entitlement not to stand trial ...

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