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Bailey v. Duesler

November 28, 2006

RUSSO BAILEY, PLAINTIFF,
v.
E. DUESLER (4235), CPT. PEREZ, SGT. YODER (1451), WILLIAM KOLENDER, AND 25 UNKNOWN POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AND GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants have filed a motion for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and a motion for partial summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons discussed below, Defendants' motions for partial judgment on the pleadings and Defendants' motion for partial summary judgment are GRANTED.

I. PERTINENT FACTS

This case arises out of the November 29, 2004 arrest of Plaintiff. On that day, Deputy Duesler and Deputy Perez, both with the Sheriff's Department, came into contact with Plaintiff while investigating a report of a van illegally camped on Graves Avenue and surrounding streets. (Duesler Decl., ¶ 2.) Plaintiff admitted that he was living in the van, and Deputy Duesler arrested Plaintiff for violating California Penal Code § 647(j). Duesler then placed Plaintiff inside a vehicle. (Plaintiff's Response to Motion, ¶ 8.)

Subsequently, Duesler, either alone or with Perez, searched the inside of Plaintiff's van. (Duesler Decl., ¶ 2; Plaintiff's Response, ¶ 9.) The search revealed a loaded Mossberg 12 gauge shotgun and a loaded Dawoo 40 caliber semi-automatic handgun and extra ammunition for each. (Duesler Decl., ¶ 3.) According to Duesler, a records check revealed that Plaintiff was not the registered owner of the guns. Accordingly, Plaintiff was also charged with violating California Penal Code § 12031(a)(2)(F) (carrying a loaded firearm in a vehicle when not the DOJ registered owner). (Duesler Decl., ¶ 4.)

Duesler had Plaintiff's van towed to Fletcher Hills Towing/RoadOne San Diego. Plaintiff was transported to the Santee Sheriff's Station where Duesler and Perez logged the weapons and ammunition seized from the van. (Duesler Decl., ¶ 6.) Plaintiff was subsequently transported to the San Diego Central Jail where he was booked. (Id.)

On December 1, 2004, Plaintiff, who was represented by the Public Defender's Office, entered a plea of guilty to violating California Penal Code § 12031. (Def.'s Exh. B.) Superior Court Judge Richard S. Whitney imposed a sentence and also ordered that the seized weapons be destroyed. (Def's Exh. C.)

In his Complaint, Plaintiff alleges that he was falsely arrested. Plaintiff claims that the arrest was the result of a false report by officers who are defendants in another civil rights litigation filed by Plaintiff, Bailey v. Gaylon Sells, et al. (Complaint, ¶ 11.) Plaintiff also claims that he was the victim of "sexual assault" and "battery" during the course of the arrest. (Complaint, ¶ 6.) Further, Plaintiff claims that he was improperly deprived of his vehicle, his firearms, and ammunition. (Id.) Plaintiff alleges that Deputies Duesler and Perez also destroyed the video recorder inside his vehicle, vandalized the inside of the vehicle, destroyed the vehicle battery, and damaged the vehicle transmission from improper towing. (Id.)

II. STANDARD

"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Judgment on the pleadings is proper "when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co, Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). All allegations of fact by the party opposing the motion are accepted as true, and construed in the light most favorable to that party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989).

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The nonmoving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. DISCUSSION

In his Complaint, Plaintiff asserts the following causes of action: (1) Monell liability under 42 U.S.C. § 1983; (2) false arrest and assault under 42 U.S.C. § 1983; (3) conspiracy under 42 U.S.C. § 1985; (4) conspiracy in violation of 42 U.S.C. § 1986(c); (5) excessive force against property under 42 U.S.C. § 1983; (6) violation of the California Constitution (Cal. Civ. Code § 52.1); (7) intentional infliction of emotional distress; and ...


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