ORDER DENYING MOTION FOR SUMMARY JUDGMENT Docket No. 9-11, GRANTING
MOTION FOR SUMMARY ADJUDICATION [Docket No. 9-2], DENYING DEFENDANTS'
OBJECTIONS [Docket No. 21-1], DENYING AS MOOT PLAINTIFF'S MOTION TO
CONTINUE HEARING [Docket Nos. 24-1 and 24-2]
AND DISMISSING STATE LAW CLAIMS
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."
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
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.
III. STANDARD OF LAW
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 or face the
other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (2001),
quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Under the Supreme Court's recently established test, the determination
whether police officers are qualifiedly immune is based on two
questions. First, "[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer's conduct
violated a constitutional right?" Saucier, 533 U.S. at 201. If the answer
to the first question is "no," then the officers have qualified
Precisely what information a court should review when attempting to
answer this first question is an issue not directly addressed by the
Saucier Court, nor by the Ninth Circuit in interpreting Saucier. Indeed,
as far as this Court is aware, no court applying the Saucier test has
explicitly stated what the Supreme Court meant when it held that trial
courts must decide whether "the facts alleged" show violation of a
Though they have not addressed the point explicitly, courts
nevertheless seem to have come to different conclusions about what the
Supreme Court meant by "the facts alleged." In one case, for example, the
Ninth Circuit "[a]ssum[ed] [plaintiffs] version of the facts is correct"
without specifying whether it was reviewing the facts alleged in
plaintiffs complaint or the facts established by plaintiffs summary
judgment affidavits. See Jackson v. City of Bremerton, 268 F.3d 646, 652
(9th Cir. 2001). In another case, the Ninth Circuit first stated that it
reviews "the facts taken in the light most favorable to the plaintiff but
then stated it conclude[d] that the plaintiff has alleged a
[constitutional] violation." See Robinson v. Solano County, 278 F.3d 1007,
1013 (9th Cir. 2002) (emphasis added).
Other circuits' opinions are no more helpful in resolving the issue. In
one case, the Third Circuit appears to have reviewed only the plaintiffs'
summary judgment submissions in answering the first Saucier question. See
Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002). The Fourth Circuit
has considered the "uncontradicted evidence" submitted by both parties in
their summary judgment briefs to determine whether a constitutional
violation occurred. See Clem v. Corbeau, 284 F.3d 543, 550-51 (4th Cir.
2002). And the Eleventh Circuit has determined whether a constitutional
right would have been violated "under the plaintiffs version of the
facts." See Lee v. Ferrar, 284 F.3d 1188, 1194 (11th Cir. 2002) (emphasis
Because the circuits have come to different conclusions, this Court is
left to make its own determination of what the Supreme Court meant when
it said a court should review "the facts alleged" to determine whether
plaintiff has established a violation of a constitutional right. To this
Court, the phrase "the facts alleged" means the facts alleged in
plaintiff's complaint that form the basis of the plaintiff's § 1983
claims. See Black's Law Dictionary 68 (5th ed. 1979) (defining
"allegation" as "[t]he assertion, claim, declaration, or statement of a
party to an action, made in a pleading, setting out what he expects to
prove"). This conclusion adheres most closely to the precise legal meaning
of "the facts alleged." It also is the interpretation that allows the
first Saucier question, whether a constitutional right was violated
— to remain as distinguishable as possible from the merits of
plaintiffs § 1983 claim. That the analysis of defendants' qualified
immunity defense is not duplicative of the analysis of the merits of
plaintiffs § 1983 claim is a theme the Saucier Court emphasized more
than once. See e.g., Saucier, 533 U.S. at 203, 205 ("In Anderson, . . .
we rejected the argument that there is no distinction between the
reasonableness standard for warrantless searches and the qualified
immunity inquiry;" "[t]he qualified immunity inquiry . . . has a further
dimension [from the merits of plaintiffs constitutional claim]").
Finally, determining the answer to the first Saucier question by
reviewing the factual allegations in plaintiffs complaint presents the
least restrictive barrier to a plaintiff suing for deprivation of federal
rights. For all these reasons, this Court finds that in answering the
first qualified immunity inquiry under Saucier, a court should review the
facts alleged in plaintiff's complaint to determine whether plaintiff has
asserted a constitutional violation.
As stated above, if a court finds that plaintiff has failed to assert a
constitutional violation, the inquiry is over and the officer is entitled
to qualified immunity. Saucier, 533 U.S. at 201.*fn1 However, if the
answer to the first question
is yes, the court must ask a second
question: "whether the officer could nevertheless have reasonably but
mistakenly believed that his or her conduct did not violate a clearly
established constitutional right." Jackson, 268 F.3d at 651.
In answering this question, a court is not restricted to the allegations
of plaintiffs complaint. Instead, because it is looking at events from
the point of view of a reasonable police officer, a court addressing the
second qualified immunity inquiry must necessarily refer to the evidence
submitted by all parties. The court must review the evidence and
determine whether the constitutional right allegedly violated was clearly
established, and whether the officer could have reasonably but mistakenly
believed his conduct did not violate that right. See Robinson, 278 F.3d
at 1015-1016 ("If the law did not put the officer[s] on notice that
[their] conduct would be unlawful, summary judgment based on qualified
immunity is appropriate."), quoting Saucier, 533 U.S. at 202.
C. Unlawful Policies, Customs, or Habits Claim Against a City
Under § 1983
A municipality may be held liable under § 1983 "when execution of a
government's policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy,
inflicts the injury. . . ." Monell v. Dep't of Social Servs., 436 U.S. 658,
694 (1978). Furthermore, if police officers' conduct was
unconstitutional, and if it was based on a city's official policy, the
city can be held liable for violation of the plaintiffs constitutional
rights. Id. Additionally, if a police officer is given qualified immunity
on grounds that he acted unconstitutionally, but he reasonably believed
he was not violating a clearly established right, the City can still be
held liable for creating the policy that caused the officer's
However, if a court finds that the officer did not, in fact, violate
plaintiffs constitutional rights, the plaintiffs claim against the city
fails because "[n]either a municipality nor a supervisor . . . can be
held liable under § 1983 where no injury or constitutional violation
has occurred." Jackson, 268 F.3d at 653, citing City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986). Therefore, if a court finds that the
defendant police officers acted constitutionally, any § 1983 claims
against a city based on the officers' conduct also fail.
As a preliminary matter, defendants have objected to the Court's
consideration of plaintiff's opposition brief because it was untimely
filed in violation of a stipulated briefing schedule approved by the
Court. The Court has considered defendants' objection and exercises its
discretion to consider plaintiffs opposition brief;, although it was
untimely filed. Defendants' objection is therefore denied. The Court
additionally notes that plaintiff filed several other documents and a
video tape on the Friday before the hearing for this motion was scheduled
in violation of the time limits set forth in Civil Local Rule 7.1(e).
The Court has exercised its discretion to accept those documents and
video tape and has reviewed them as well. Plaintiffs Motion to Continue
Hearing is therefore denied as moot.
A. Claim for Violation of 42 U.S.C. § 1983
Against Police Officers Kelly and Ekeland
Plaintiff alleges that defendants violated his Fourth Amendment rights