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Theimer v. Orduno


February 25, 2009


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motions filed on January 20 and January 30, 2009]


On February 23, 2009, several motions filed by defendants Rosemary Machorro ("Machorro"), Michael Jenks ("Jenks"), and the City of Victorville came before the Court for a hearing. After reviewing and considering all papers filed in support of, and in opposition to, the Motions, as well as the arguments advanced by counsel at the hearings, the Court GRANTS IN PART and DENIES IN PART the Motion to Strike; DENIES Summary Judgment as to Machorro; GRANTS Summary Judgment in favor of Defendant Jenks; GRANTS Summary Judgment in favor of Defendant City of Victorville; and DENIES the Motion for Adjudication of Facts as Moot.


A. Procedural History

1. First Amended Complaint

The Court granted Machorro, Jenks, and the City of Victorville's (collectively "Moving Defendants") motion to dismiss plaintiff David Theimer, Sr.'s ("Plaintiff"*fn1

First Amended Complaint ("FAC") in an Order dated December 17, 2008 ("December 2008 Order"). The Court granted Plaintiff leave to amend on some claims.

2. Second Amended Complaint

Plaintiff timely filed a Second Amended Complaint ("SAC") naming "E." Orduno, Gary Penrod, the County of San Bernardino, Machorro, Jenks, and the City of Victorville as Defendants.

Plaintiff asserts all defendants, including those who do not move for summary judgment, acted together to conduct the March 2, 2007 warrantless search of kennels near Plaintiff's house and seizure of his 44 dogs. He also claims all defendants acted together to arrest and incarcerate him and to disclose the giardia infection of his dogs to a newspaper reporter. According to Plaintiff, these acts violated his rights under the Fourth Amendment and the "penumbral right to privacy" of the U.S. Constitution. (SAC ¶¶ 11-17.) Plaintiff includes no other constitutional claims in his SAC.

3. Motion to Strike, Motions for Summary Judgment, Motion for Adjudication of Facts

The Moving Defendants, separately or together, bring the four motions now before the Court:

! Motion for Summary Judgment as to Defendants Machorro and Jenks ("Machorro & Jenks Mot.");

! Motion for Summary Judgment as to the City of Victorville ("Victorville Mot.");

! Motion for an Order Specifying Facts Not Genuinely at Issue ("Mot. for Facts" or "Motion for Adjudication of Facts"), brought by Machorro, Jenks, and the City of Victorville; and

! Motion to Strike Portions of the SAC ("Mot. to Strike"), brought by Machorro, Jenks, and the City of Victorville.

The Moving Defendants filed the Motion to Strike on January 20, 2009 and the other Motions on January 30, 2009, all noticed for hearing on February 23, 2009. Plaintiff filed Opposition to all Motions on February 9, 2009. On February 13, 2009 Moving Defendants timely filed Replies in support of all Motions. On February 14, 2009, Plaintiffs filed three untimely Statements of Genuine Issues in opposition to the two Motions for Summary Judgment and the Motion for Adjudication of Facts. On February 17, 2009, Moving Defendants filed objections to Plaintiff's untimely documents. Pursuant to Local Rules 56-1 through 56-4 and 7-10, the Court disregards Plaintiff's untimely filings.


A. Facts

Moving Defendants offer nearly identical materials in support of, and Plaintiff offers very similar argument in opposition to, the Motion for Summary Judgment as to Machorro and Jenks and the Motion for Summary Judgment as to the City of Victorville.*fn2

Moving Defendants, pursuant to Local Rule 56-1, support each of their Motions for Summary Judgment with Statements of Undisputed Fact ("DSUF"). Plaintiff, in contravention of Local Rule 56-2, failed timely to "serve and file with the opposing papers a separate document containing a concise 'Statement of Genuine Issues' setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated."

The consequence of Plaintiff's failure is that the Court, in accordance with Local Rule 56-3, "will assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy . . . ." In other words, the Court will grant summary judgment if Moving Defendants proffer evidence demonstrating they are entitled to judgment as a matter of law. Following the Local Rules does not amount, as Plaintiff contends, to granting summary judgment by default. See In re Rogstad, 126 F.3d 1224, 1227 (9th Cir. 1997).

1. Parties

a. Plaintiff

On March 2, 2007, Plaintiff conducted an unlicensed dog breeding enterprise at 15119 El Cariso Road, a residential address, in the City of Victorville, California. (Machorro & Jenks DSUF ¶ 1; Victorville Mot. DSUF ¶ 1.)

b. Moving Defendants

I. Machorro

On March 2, 2007 Machorro was an Animal Care and Control officer for the City of Victorville. (Declaration of Rosemary Machorro ¶ 3 in support of both Machorro & Jenks Mot. and Victorville Mot. ("Machorro Decl.").)

ii. Jenks

On March 2, 2007, Jenks was the Interim Assistant Director of the Department of Public Works. (Jenks Decl. ¶ 3.) He was not employed in Animal Care and Control and did not supervise employees in that division.

iii. City of Victorville

The City of Victorville employed Machorro and Jenks. (Machorro Decl. ¶ 3; Jenks Decl. ¶ 3.) According to Michael Cathcart ("Cathcart"), the supervisor of Animal Care and Control Division of the City of Victorville, the policy of City of Victorville is to follow the U.S. constitution.*fn3 (Declaration of Michael Cathcart ¶ 3 in support of Victorville Mot. ("Cathcart Decl. to Victorville Mot.")*fn4.)

2. Events

a. Machorro Speaks with Plaintiff

According to Machorro, on March 2, 2007, she went to Plaintiff's residence in response to a call from her dispatcher, who told her a member of the public had complained to an unnamed person that Plaintiff sold him a puppy infected with giardia. (Machorro Decl. ¶ 4.) The dispatcher also told Machorro there were no dog licenses on file listing Plaintiff's residence. (Machorro Decl. ¶ 4.)

Machorro went to the door of Plaintiff's house and spoke with Plaintiff, who denied he had sold an infected dog and refused Machorro entry to where he kept his dogs. Plaintiff admitted he had at least two dogs. (Machorro Decl. ¶¶ 5, 7.) Plaintiff showed Machorro an adult dog and a puppy; Machorro also heard or saw two more dogs. (Machorro Decl. ¶ 7.) A fence blocked her view of Plaintiff's property. (Deposition of Rosemary Machorro ("Machorro Dep.") 22 at Ex. 234 to Reply to Victorville Mot.) Accordingly, Machorro knew Plaintiff had, at the most, four dogs after speaking with Plaintiff. When she left Plaintiff's residence she had "no reason to suspect that there was an extensive kennel or dozens of dogs on the premises." (Machorro Decl. ¶ 7.)

b. Machorro Requests Assistance

Machorro then contacted the San Bernardino County Sheriff's Office for assistance and a deputy responded, entered Plaintiff's property, spoke with him, arrested him, handcuffed him, and took him off of his property. (Machorro Decl. ¶ 4; Machorro Dep. 29-30.) The record before the Court does not disclose exactly what Machorro said to the deputy, nor what information, if any, the deputy relayed back to Machorro after arresting Plaintiff.

Once the deputies had entered Plaintiff's property, Machorro went into the backyard and discovered dogs without food or water, some suffering from mange, in an area with a strong smell of feces and urine. (Machorro Decl. ¶ 10; Machorro Dep. 30.) Machorro knew giardia is found in animal feces, that it can be passed to humans, and believed the conditions on Plaintiff's property represented "a significant health risk[] to both animals and humans." (Machorro Decl. ¶¶ 6, 11.)

Machorro called a dispatcher named "Laurie." (Machorro Dep. 33.) Forty-four dogs were then photographed, catalogued, and impounded. (See Machorro Decl. ¶ 12.)

c. Jenks Arrives and Helps Catalog Dogs

Jenks was employed by the City of Victorville; he received a call from Lori McRoberts, ("McRoberts") whose position is not revealed in the moving papers but who appears to have been the dispatcher Machorro contacted. (Jenks Decl. ¶ 4.) McRoberts asked Jenks to go to Plaintiff's residence and help "rescue" animals. (Jenks Decl. ¶ 4.) When Jenks arrived, he found the sheriff's deputies were in charge. (Jenks Decl. ¶ 7.) Jenks made no decision about entering, searching, or seizing the dogs. (Jenks Decl. ¶ 7.) Jenks only helped photograph and record data about approximately ten dogs. (Jenks Decl. ¶ 5-6.)

d. Post-Seizure Interactions between Moving Defendants and Plaintiff

On an unspecified date on or after March 2, 2007, Machorro served Deborah Theimer, Plaintiff's wife, a notice of a dog owner's right to request a post-seizure hearing pursuant to California Penal Code § 597.1(f). (Machorro Decl. ¶ 13.)

A few days later, Machorro returned to Plaintiff's residence with Cathcart, supervisor of the Victorville Animal Care and Control Division, to discuss the disposition of the seized dogs. (Machorro Decl. ¶ 16.) According to Machorro, Plaintiff wanted the dogs killed; according to Cathcart, Plaintiff wanted them killed if Plaintiff could not have them back. (Machorro Decl. ¶ 16; Cathcart Decl. to Machorro & Jenks Mot. ¶ 4.) The City of Victorville arranged for the adoption of all but a few dogs. The unadopted dogs were killed. (Cathcart Decl. to Machorro & Jenks Mot. ¶¶ 4-7.)

e. Statements to Reporters

Machorro and Jenks both deny they told a newspaper reporter Plaintiff "was a carrier of a loathsome disease." (Machorro Decl. ¶ 17; Jenks Decl. ¶ 12.)

f. Policies of the City of Victorville

According to Cathcart, supervisor of the Victorville Animal Care and Control Division, "[t]here does not exist within the Animal Care and Control division, or within the City of Victorville, any informal custom, habit, or practice of unreasonably searching or seizing the property of anyone." (Cathcart Decl. ¶ 7 to Victorville Mot.)

B. Legal Standard

A motion for summary judgment shall be granted when 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the non-moving party has the burden at trial; however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325.

Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.

The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144.

A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

C. Discussion

Defendants Machorro and Jenks move for summary judgment asserting (1) their acts did not violate Plaintiff's rights or, in the alternative, (2) they are entitled to qualified immunity. (Machorro & Jenks Mot. 3, 7.) The Court examines their liability separately.

1. Summary Judgment as to Machorro

a. Liability for Violation of the Fourth Amendment

Machorro claims she is entitled to summary judgment because her warrantless search was permissible under the Fourth Amendment, as she was responding to exigent circumstances, i.e., 44 dogs kept at an unlicensed facility in the conditions described. (Machorro & Jenks Mot. 8-9.) Machorro is mistaken. In determining whether Machorro acted under exigent circumstances, the Court only examines those facts she knew before she followed law enforcement officers into Plaintiff's property. According to Machorro's deposition testimony, she could not see into Plaintiff's backyard because of a fence. (Machorro Dep. 22.) At the time she called the sheriff's deputy, she "had no reason to suspect that there was an extensive kennel or dozens of dogs on the premises." (See Machorro Decl. ¶¶ 5-7.) "[O]nly once she was able to see into the backyard did she realize" the number of dogs Plaintiff possessed and the "unhealthful, unsanitary conditions in which the dogs were kept." (Reply to Machorro & Jenks Mot. 8.)

Machorro relies in vain on Broden v. Marin Human Society, 70 Cal. App. 4th 1212 (1999). There, the California Court of Appeal described the kind of information an animal care and control officer would need to determine that "immediate seizure" of an animal was appropriate without a warrant pursuant to California Penal Code section 597.1. These circumstances are "the equivalent of the exigent circumstances exception familiar to search and seizure law . . . every case must be explained in light of what was known to the officer at the time of entry." Broden, 70 Cal. App. 4th at 1220.

Machorro has not testified or claimed that, at the time she entered Plaintiff's property, she had observed any evidence of animal distress, much less the sort of evidence observed by the government agent in Broden. In Broden, responding to a complaint from the public, the agent went to a shop selling reptiles, smelled a terrible odor, saw flies inside, observed flies trying to enter the shop, and found that the owner of the business did not respond to repeated attempts to contact him. (Opp'n to Machorro & Jenks 10 citing Broden, 70 Cal. App. 4th at 1222.) The Broden court found that, short of a "show of visible slaughter or blood oozing under the door, a more compelling case for immediate entry cannot be imagined." Here, in contrast, Machorro proffers evidence only that she knew there was a complaint about a sick puppy and that Plaintiff possessed up to four dogs; she had "no reason to suspect that there [were] . . . dozens of dogs on the premises." (Machorro Decl. ¶ 7.)

Based on the evidence adduced by Machorro, she has not met her initial burden on summary judgment of showing there is no dispute of material fact whether she complied with the Fourth Amendment.

b. Qualified Immunity

Government officials are entitled to qualified immunity from civil damage claims unless their conduct violates "clearly established constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

I. Clearly Established Right

At the time of the search, controlling authority recognized: (1) a clearly established right to be free of unreasonable seizures in one's home and its surrounding structures; (2) a clearly-established right not to have dogs unnecessarily destroyed in the execution of a search warrant. U.S. v. Jacobsen, 466 U.S. 109, 113 (1984) (discussing basic Fourth Amendment principles); Ortega v. O'Connor, 146 F. 3d 1149, 1157 (9th Cir. 1998) (discussing extension of Fourth Amendment principles to areas outside the home, such as an office); San Jose Charter of Hells Angels v. San Jose, 402 F.3d 962, 977 (9th Cir. 2005) ("the Fourth Amendment prohibits the killing of a person's dog, or the destruction of a person's property, when that destruction is unnecessary -- i.e., when less intrusive, less destructive alternatives exist" for conducting a search). Accordingly, the Court finds Plaintiff had a clearly-established right to be free of unreasonable searches of his property, including his fenced back yard.

Plaintiff claims Machorro violated that right; the Court finds, above, that Machorro has not borne the burden of adducing evidence she complied with the Fourth Amendment. Accordingly, for the purposes of determining whether Machorro is entitled to qualified immunity, the Court assumes, without deciding, that Machorro violated the Fourth Amendment.

ii. Reasonable Officer

The Court must now determine whether a reasonable officer "could have believed that, in those exigent circumstances, immediate action was necessary to rescue the dogs and to provide them with the attention and veterinary care they required." (Machorro & Jenks Mot. 10.) The Court cannot find a reasonable officer would believe she confronted exigent circumstances. Machorro proffers proof only that she knew, before she called the sheriff, that Plaintiff had four dogs, none of them visibly ill, and that one person had complained Plaintiff sold him a sick puppy. A reasonable officer would not conclude in those circumstances "immediate action was necessary to rescue" the four dogs. See Pearson v. Callahan, ___ U.S.___, 129 S.Ct. 808, 814 (2009). (Of course, a reasonable officer with knowledge 44 dogs were on the property without food or water, surrounded by their own feces and urine, might have come to a different conclusion, but that is not the question the Court is called upon to resolve here.)

In her Reply, Machorro argues she had probable cause to search Plaintiff's backyard without a warrant because she had probable cause to arrest Plaintiff for the misdemeanor of having more than three dogs at his residence.*fn5 Had Machorro arrested Plaintiff, she argues, she could have performed a search pursuant to arrest.

Machorro's argument is unconvincing. She testified at her deposition that when she initially spoke with Plaintiff, a fence blocked her view from the location where he kept the dogs. (Machorro Dep. 21.) She does not adduce evidence the dogs were within the scope of the search she could have conducted pursuant to a lawful arrest.

The Court DENIES the Motion as to Machorro.

2. Summary Judgment as to Jenks

Jenks claims his role in the acts Plaintiff complains of was so minor that he did not violate Plaintiff's rights. (Machorro & Jenks Mot. 7.) Jenks was not an employee of the Animal Care and Control division, only assisted other City of Victorville employees catalog dogs, and proffered evidence he did not tell a newspaper reporter Plaintiff had a "loathsome disease." (Machorro & Jenks Mot. DSUF ¶¶ 7-8, 10.)

Plaintiff concedes "JENKS played little or no role in the violation of the plaintiffs' civil rights." (Opp'n to Machorro & Jenks Mot. 5:1-3.)

Jenks fails to address whether entering Plaintiff's property, after the police conducted a search not found to have complied with the Fourth Amendment, and after animal control officers sent for help, was a violation of the Fourth Amendment. Nevertheless, an officer is entitled to qualified immunity where he makes a reasonable mistake of fact or law. Pearson, ___ U.S. at ___, 129 S.Ct. at 814 (qualified immunity provides protection where officers make reasonable mistake of law, mistake of fact, or a mixture of the two). In light of Jenks' evidence he merely assisted other employees document of seized dogs and Plaintiff's admission Jenks played "little or no role in the violation of

[P]laintiff[']s[] civil rights" the Court finds Jenks is entitled to qualified immunity. (Opp'n to Machorro & Jenks Mot. 5:1-2.) Even if he violated Plaintiff's civil rights, he did so based on a reasonable mistake. Pearson, ___ U.S. at ___, 129 S.Ct. at 814. The Court GRANTS the Motion for Summary Judgment as to Jenks.

3. Motion for Summary Judgment as to City of Victorville

The City of Victorville claims (1) its officers did not violate Plaintiff's rights (Victorville Mot. 8); and (2) it has no policy that violates Plaintiff's rights. As the Court denies Machorro summary judgment, the City of Victorville cannot escape liability through the first theory. As to the second theory, however, the City of Victorville has borne its burden by proffering evidence from Cathcart that it has no policy violating the U.S. Constitution. (Cathcart Decl. to Victorville Mot. ¶ 7.) Plaintiff, through his failure to file timely a Statement of Genuine Issues, forfeited his opportunity to contest this material fact. The Court GRANTS the Motion for Summary Judgment as to the City of Victorville.


The Moving Defendants ask the Court, pursuant to Rule 56(d)(1) of the Federal Rules of Civil Procedure, for an order specifying the following facts are not genuinely at issue: (1) Plaintiff relinquished his interest in the seized dogs, which he claims are worth over $150,000; (2) Plaintiff cannot claim lost profits.*fn6

Plaintiff's claim for the lost value of the dogs, and for any business proceeds resulting therefrom, does not result properly from a violation of the Fourth Amendment because the alleged losses resulted not from the search but from the post-seizure proceedings, which occurred some days later. See Hells Angels, 402 F.3d at 977-78 (law enforcement officers violated Fourth Amendment when they unnecessarily shot and killed dogs during raid).*fn7

The Court does not determine whether the relinquishment of the dogs was valid, or whether Plaintiff acted under duress, because these facts are immaterial to Plaintiff's Fourth Amendment claim.

In other words, the Motion for Adjudication of Facts is moot because Plaintiff did not properly plead any claim which would entitle him to recover the value of the seized dogs or his lost profits. Plaintiff included no Fifth or Fourteenth Amendment claims in his SAC although he was forewarned of the distinction between these claims and those arising under the Fourth Amendment. Plaintiff's FAC sought relief under the Fourth, Fifth, and Fourteenth Amendments. In its December 2008 Order, the Court discussed these claims under separate headings, explained the conditions predicate to bringing a Fifth Amendment claim, and dismissed these claims with leave to amend. (December 2008 Order at 5-6.) The only constitutional claims in Plaintiff's SAC are those arising under the Fourth Amendment and the constitutional right to privacy, the latter of which is a Fourteenth Amendment claim, but not one germane to allegations of due process violations.

The Court DENIES the Motion for Adjudication of Facts as moot; Plaintiff is not entitled to recover lost profits or the value of his dogs because he did not bring an appropriate claim under the Fifth or the Fourteenth Amendments.


All Moving Defendants ask the Court to strike several portions of the SAC. After considering the arguments offered by counsel at the hearing, the Court concludes counsel complied with Local Rule 7-3. Accordingly, the Court GRANTS IN PART and DENIES IN PART the Motion to Strike.

A. Loathsome Disease Allegations

Plaintiff's SAC, at page 5, lines 15 to 18, and page 6, lines 12 to 14, states that Machorro and Jenks told a newspaper reporter "Plaintiffs were carriers of a loathsome, contagious disease." Among the Court's factual findings regarding the Motion for Summary Judgment brought by Machorro and Jenks, above, is that neither Machorro nor Jenks made such statements. Accordingly, the Court strikes those allegations from the SAC. The Motion to Strike is GRANTED IN PART.

B. "Acting in Concert" Allegations

Plaintiff alleges at page 6 of his SAC, at lines 9 to 12, that Machorro and Jenks acted in concert with a sheriff's deputy to conduct an unauthorized search and seizure. Moving Defendants ask the Court to strike these allegations as baseless as Plaintiff has not conducted new discovery since December 15, 2008, when his counsel stated in open court that Plaintiff had no factual basis for asserting Moving Defendants acted in concert with a sheriff's deputy. (Mot. to Strike 4-5.) Consequently, they assert, Plaintiff can have no basis for these allegations.

According to Plaintiff's counsel, however, he "acquired information" since December 15, 2008 that Machorro called the sheriff's deputy. (Declaration of Michael DesJardins ("DesJardins Decl.") ¶ 2 attached to Opp'n to Mot. to Strike.) Accordingly, the Court cannot conclude these allegations lack foundation and DENIES the Motion to Strike these allegationd.

C. Allegations Regarding Practices and Procedures of the City of Victorville

The Court GRANTS IN PART the Motion to Strike as to the language at page 6, lines 16 to 20, of the SAC in which Plaintiff claims the City of Victorville injured him pursuant to official practice and procedures. As the Court finds, above, that the City of Victorville is entitled to summary judgment, Plaintiff is not entitled to relief on this claim. The Court strikes it from the SAC.

D. Punitive Damages

The Court DENIES the Motion to Strike as to Plaintiff's allegations he is entitled to punitive damages against Machorro and Jenks. (SAC 7:11-12.) Although Jenks has shown he is entitled to summary judgment, as discussed above, the evidence adduced by Machorro does not foreclose, as a matter of law, the possibility of punitive damages.


For the reasons above, the Court DENIES the Motion for Summary Judgment as to Machorro; GRANTS the Motion for Summary Judgment as to Jenks; GRANTS the Motion for Summary Judgment as the City of Victorville; DENIES the Motion for Adjudication of Facts; and GRANTS IN PART and DENIES IN PART the Motion to Strike.

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