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United States District Court, S.D. California

November 14, 2005.


The opinion of the court was delivered by: DANA SABRAW, District Judge

This matter comes before the Court on Defendants' motion for summary judgment or, in the alternative, summary adjudication. Plaintiff has filed an opposition to the motion, and Defendants have filed a reply. The Court found this motion suitable for decision without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set out below, the Court grants Defendants' motion.



  Plaintiff filed her original complaint in this case on September 18, 2003, and a First Amended Complaint on November 7, 2003. Defendants City of Chula Vista, Matthew Tsunoda, Juan Estrada and William Davidson filed their Answer to the First Amended Complaint on February 23, 2004. Plaintiff alleges Defendants violated her Fourth Amendment rights to be free from unreasonable search and excessive force. She also alleges Defendants violated her Fifth Amendment right to due process and her right against self-incrimination. In addition to these federal claims, Plaintiff alleges state law claims for battery and false imprisonment. Plaintiff seeks general and punitive damages, attorney's fees and costs.



  Plaintiff is the President of a non-profit organization, Save The Orphaned Pets ("STOP"). STOP was established as a pet rescue and adoption agency for discarded or orphaned pets. As a result of her participation in STOP, Plaintiff kept numerous animals in her Chula Vista home.

  Plaintiff's neighbors filed repeated complaints about the animals on Plaintiff's property. In response to those complaints, Defendant Juan Estrada, an Animal Control Officer employed by the City of Chula Vista, reported to Plaintiff's home on several occasions. On one of those occasions, Defendant Estrada cited Plaintiff for having unlicensed dogs on her property. On a subsequent occasion, Defendant Estrada cited Plaintiff for having too many cats on her property.

  On September 4, 2002, Defendant Matthew Tsunoda, an Animal Control Officer employed by the City of Chula Vista, was dispatched to Plaintiff's home in response to another complaint about the animals on Plaintiff's property. Defendant Tsunoda parked down the street from Plaintiff's house. Upon exiting his vehicle, he noticed the smell of feces and urine coming from Plaintiff's house. He also noticed that Plaintiff had a pedestrian door in her garage door.

  Plaintiff approached Defendant Tsunoda on the street. Tsunoda informed her that, with her permission, he was there to check on the status of cats on her property in response to a complaint from a neighbor. Plaintiff declined to give her consent, so Tsunoda left the premises. Thereafter, Tsunoda informed his lieutenant of this encounter with Plaintiff, and then began the process of obtaining a search warrant for Plaintiff's property.

  The following day, Bridget Neagles, one of Plaintiff's neighbors, filed another complaint with the City of Chula Vista about trash, junk and debris on Plaintiff's property, as well as the possibility of a converted garage. In response to that complaint, Charles Withers, a Code Enforcement Officer employed by the City of Chula Vista, reported to Plaintiff's home. Plaintiff allowed Mr. Withers to inspect her garage, whereupon he found approximately sixty cats being housed in cages piled on top of each other. Mr. Withers told Plaintiff she had an illegal number of cats on her property, and that he would be contacting the City's Animal Control Department.

  The following day, Mr. Withers contacted Defendant Tsunoda about his visit to Plaintiff's property. Mr. Withers informed Defendant Tsunoda about the number of cats Plaintiff was housing and the unsanitary condition of the cats.

  On October 11, 2002, Ms. Neagles filed another complaint with the City of Chula Vista concerning Plaintiff's property and the animals being housed there.

  On October 21, 2002, Defendant Tsunoda submitted a request for a search warrant for Plaintiff's property. San Diego Superior Court Judge Margie G. Woods issued the search warrant later that day.

  On October 23, 2002, eight officers from the City of Chula Vista arrived at Plaintiff's home to execute the search warrant. Among the officers executing the warrant were Defendants Estrada, Tsunoda and Davidson.*fn1 Upon arriving at Plaintiff's home, the officers heard dogs barking viciously from inside. Defendant Davidson stated he had a search warrant, and the officers entered Plaintiff's residence.

  Once inside the residence, Defendant Davidson handcuffed Plaintiff and informed her of her Miranda rights. While the officers were conducting their search, Plaintiff asked Defendants if she could go to the restroom. Defendants removed Plaintiff's handcuffs and allowed her to do so. Also during the course of the search, Defendants asked Plaintiff some questions. In response, Plaintiff informed Defendants of the existence and location of marijuana in the house.

  In the course of the search, some of the officers used capture poles to restrain, capture and remove three vicious dogs from Plaintiff's residence. In addition to these three dogs, the officers found sixty-four cats and two additional dogs on Plaintiff's property. The District Attorney filed charges against Plaintiff as a result of the search of her home. Plaintiff subsequently pled guilty to violating a Chula Vista Municipal Code regarding the number of animals allowed on one's property.



  Defendants move for summary judgment on each of Plaintiff's claims. They raise several arguments in support of their motion. First, they argue they are entitled to immunity from Plaintiff's claims. Second, they assert Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Third, they contend Plaintiff has not established liability against the City of Chula Vista pursuant to Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978).*fn2 Finally, Defendants argue Plaintiff is not entitled to an award of punitive damages.

  A. Standard of Review

  Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

  The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. See also Butler v. San Diego District Attorney's Office, 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence of his own). More than a "metaphysical doubt" is required to establish a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

  B. Qualified Immunity*fn3

  Qualified immunity shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Claims of qualified immunity require a two-step analysis. First, the court must consider whether the facts alleged, taken in the light most favorable to the party asserting the injury, show the defendant's conduct violated a constitutional right. Saucier, 533 U.S. at 201. If the allegations do not establish the violation of a constitutional right, "there is no necessity for further inquiries concerning qualified immunity." Id. If the allegations could make out a constitutional violation, however, the court must then ask whether the right was clearly established — that is, whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. If an officer makes a reasonable mistake as to what the law requires, the officer is entitled to immunity. Id. at 205.

  1. Excessive Force*fn4

  The Fourth Amendment prohibition against unreasonable seizures permits law enforcement officers to use only such force to effect an arrest as is "objectively reasonable" under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Because the Fourth Amendment test for reasonableness is inherently fact-specific, see Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (citing Reed v. Hoy, 909 F.2d 324, 330 (9th Cir. 1989)), it is a test that escapes "mechanical application" and "requires careful attention to the facts and circumstances of each particular case." Graham, 490 U.S. at 396; Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995).

  In determining whether a particular use of force was reasonable, courts must first assess "the quantum of force used" in executing the search warrant. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 2938 (2005). In addition, in assessing the reasonableness of force used, courts must consider: "(1) the severity of the crime at issue, (2) whether the suspect pose[d] an immediate threat to the safety of the officers or others, . . . (3) whether he [was] actively resisting arrest or attempting to evade arrest by flight," and any other "exigent circumstances [that] existed at the time of the arrest." Chew, 27 F.3d at 1440-41 & n. 5 (citing Graham, 490 U.S. at 396). In this case, Plaintiff's excessive force claim appears to arise from Defendant Davidson's handcuffing Plaintiff and "throwing" her on a couch, and Defendants' refusal to allow her to use the restroom or speak with her elderly mother, who was in her bedroom during the search. (Defs.' Notice of Lodgment of Exhibits, Ex. C at 289, 291, 296-98.)*fn5 Defendants argue their conduct was not unreasonable under the circumstances, and even if it was, it would not have been clear to a reasonable officer that his conduct was unlawful under the circumstances.

  Pursuant to Smith, the Court must first assess "the quantum of force used" in executing the search warrant to determine whether or not the force used was reasonable. 394 F.3d at 701. Although the use of handcuffs and the alleged "throwing" of Plaintiff onto her couch unquestionably constitute the use of force, that force is relatively moderate, especially in light of Plaintiff's alleged injuries. Plaintiff complains the handcuffs hurt her wrists, (see Defs.' Notice of Lodgment of Exhibits, Ex. C at p. 299), but she does not allege any lasting injury to her wrists as a result of the handcuffs. She also alleges Defendant Davidson hurt her shoulder when he turned her around to apply the handcuffs, (see id. at 292), but she fails to allege any residual injury to her shoulder as a result of that conduct. Plaintiff also admits she suffered no injury from allegedly being thrown onto her couch. (Id. at 292-93.) In light of these facts, the use of force in this case was relatively minor.

  The same may be said of the severity of the crime at issue in this case. The crime originally charged is set out in California Penal Code Section 597, which prohibits cruelty to animals (and may be charged as either a felony or misdemeanor), but Plaintiff ultimately pled guilty to a Chula Vista Municipal Code violation regarding the number of animals allowed on one's property. The crime, therefore, was relatively minor.

  The Court must also consider whether Plaintiff posed an immediate threat to the safety of the officers on the scene or anyone else, and whether Plaintiff was resisting arrest or attempting to flee. Chew, 27 F.3d at 1440-41. According to Plaintiff's version of the facts, which is contested by Defendants, she was not threatening the officers or anyone else, nor was she resisting arrest or attempting to flee her residence. Thus, neither of these factors supports the application of any force in this case.

  Finally, the Court must consider whether any other exigent circumstance existed at the time of Defendants' use of force. It is undisputed Plaintiff owned five dogs, all of which were on the property and "barking viciously" when Defendants approached the house. (See Pl.'s Separate Statement of Genuine Issues and Reference to Supporting Evidence in Opp'n to Mot. for Summ. J., No. 46.) Plaintiff also does not dispute that some of these dogs had bitten people in the past. (Id. at Nos. 70-71.) However, according to Plaintiff, these dogs were located in the bedroom and backyard when Defendants applied the force at issue.

  Considering the circumstances above in Plaintiff's favor, the reasonableness of force used in this case is a close call. Defendants were investigating a relatively minor crime, Plaintiff was not threatening the officers or anyone else, nor was she resisting arrest or attempting to evade the officers. Further, according to Plaintiff, her dogs were not threatening Defendants either before or at the time the force was applied. Defendants, however, were executing a warrant and entering a residence that indisputably contained numerous aggressive dogs (including pit bulls) that were known to be territorial and to have bitten persons in the recent past. Under these circumstances, limiting Plaintiff's access to the dogs, securing the residence, and otherwise maximizing officer safety, all would be legitimate and pressing concerns of Defendants immediately after entering the residence. Accordingly, the Court finds Plaintiff has not established a violation of her Fourth Amendment right to be free from excessive force, even under circumstances viewed most favorably to Plaintiff.

  In addition, if the Court were to find a violation of Plaintiff's Fourth Amendment right, she would be unable to satisfy the second prong of the qualified immunity analysis. Step two requires this Court to address whether it would have been clear to a reasonable officer that his use of force was unreasonable under the circumstances. Saucier, 533 U.S. at 202. None of the parties to this case have cited any case law that would have put Defendants on notice that their conduct in this case was unreasonable. See Blanford v. Sacramento County, 406 F.3d 1110, 1119 (9th Cir. 2005) (finding deputies entitled to qualified immunity because "neither Supreme Court nor circuit precedent in existence" at time of incident "would have put a reasonable officer in the deputies' position on notice that using deadly force in the particular circumstances would violate his Fourth Amendment rights.") Further, in light of the circumstances, the Court cannot say Defendants' conduct was "`so patently violative of the constitutional right that reasonable officials would know without guidance from the court that the action was unconstitutional[.]" Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)). This is particularly so where, as here, Defendants were executing a warrant and entering a residence that contained numerous aggressive dogs. Considering the exigencies and uncertainties presented by such an encounter, it would not have been clear to a reasonable officer that the force used by Defendants (as characterized by Plaintiff) was unreasonable. Defendants are therefore entitled to qualified immunity on Plaintiff's excessive force claim.

  2. Self-Incrimination

  In her second cause of action, Plaintiff alleges Defendant Davidson compelled her to incriminate herself. Specifically, Plaintiff alleges she was forced to disclose the existence and location of an amount of marijuana in her residence while the officers were executing the search warrant. Defendants argue these facts, even if true, do not establish a constitutional violation. The Fifth Amendment to the United States Constitution states no person "shall be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. Although this right may serve as the basis for a Section 1983 claim, four Justices of the Supreme Court recently clarified "a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case." Chavez v. Martinez, 538 U.S. 760, 767 (2003). In Chavez, the plaintiff was never prosecuted, and hence, never compelled to be a witness against himself in a criminal case. Id. at 766. Under those circumstances, the Court found the plaintiff had failed to allege a violation of his constitutional right against self-incrimination.

  Here, Plaintiff was charged with a crime, and she eventually entered a guilty plea to violating a municipal code. However, like the plaintiff in Chavez, Plaintiff was never forced to be a witness against herself in a criminal case. Absent such a showing, Plaintiff has not established a violation of her constitutional right against self-incrimination. Accordingly, Defendants are entitled to qualified immunity on this claim.

  3. Due Process

  Plaintiff's final constitutional claim is for a violation of her due process rights. Specifically, Plaintiff alleges she was deprived of her dogs without a post-seizure hearing. Defendants argue Plaintiff has failed to demonstrate a violation of her constitutional rights, therefore they are entitled to qualified immunity on this claim.

  California Penal Code Section 597.1 authorized Defendants to seize Plaintiff's animals if they had "reasonable grounds to believe that very prompt action [was] required to protect the health or safety of [the animals] or the health and safety of others[.]" Cal. Penal Code § 597.1(b). After seizing the animals, Defendants were required to provide Plaintiff "with the opportunity for a post-seizure hearing to determine the validity of the seizure or impoundment, or both." Cal. Penal Code § 597.1(f). Although Plaintiff contends Defendants violated her due process rights by seizing her dogs and then failing to provide her with a hearing, Plaintiff presents no evidence to support this claim. Plaintiff has therefore failed to establish a constitutional violation, and thus Defendants are entitled to qualified immunity from this claim. C. Heck Bar

  In addition to arguing they are entitled to qualified immunity, Defendants assert Plaintiff's claims are barred by the Supreme Court's decision in Heck. There, the Supreme Court held:

to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness could render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a writ of habeas corpus.
512 U.S. at 486-87. In other words, if a criminal conviction or other judgment "arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which the section 1983 damages are sought, the 1983 action must be dismissed." Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996).

  Here, Plaintiff alleges Defendants subjected her to an unreasonable search in violation of the Fourth Amendment. Specifically, Plaintiff contends the search warrant was defective in that it was not supported by probable cause. However, Plaintiff's guilty plea to violating the Chula Vista Municipal Code ordinance limiting the number of animals allowed on one's property is based on evidence seized during the search of Plaintiff's home. Under these circumstances, Plaintiff's claim is barred by Heck, and it must be dismissed. See Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) ("a § 1983 action alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned.")*fn6 IV.


  For these reasons, the Court GRANTS Defendants' motion for summary judgment. Specifically, the Court grants Defendants' motion as to Plaintiff's first and second causes of action, and dismisses Plaintiff's third and fourth causes of action for lack of subject matter jurisdiction. The Clerk of Court shall enter judgment accordingly.



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