The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on December 21, 2009]
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant the United States of America's Motion for Partial Summary Judgment came before the Court for a hearing on January 25, 2010. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court GRANTS in part and DENIES in part the Motion, as set forth below.
On April 23, 2007, Plaintiffs Julia and Bobby Joe ("BJ") Davis filed this action against Defendants the United States of America ("the United States" or "the Government") and United States Immigration and Customs Enforcement ("ICE") Agents Jeffrey Deal*fn1 ("Deal") and Herbert Kaufer*fn2 ("Kaufer"). The action alleges a variety of wrongful acts by government agents following a 2004 complaint of sexual harassment lodged by Julia Davis, a United States Customs and Border Protection ("CBP")*fn3 employee, including searches of Plaintiffs' office and residence in 2004 and 2005, the 2005 arrest and prosecution of Plaintiffs on federal immigration fraud charges, and the 2006 arrest and prosecution of Plaintiffs on state firearms charges.
The operative complaint is the Second Amended Complaint ("SAC"), filed on July 17, 2008. It contains eight claims, two of them brought against only Defendants Deal and Kaufer pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), asserting violations of Plaintiffs' rights under the First and Fourth Amendments to the United States Constitution. (SAC ¶¶ 83, 117.) The other six claims, brought only against the Government pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80, are for false imprisonment, malicious prosecution, abuse of process, trespass, conversion, and intentional infliction of emotional distress. The claims for conversion and false imprisonment have been dismissed in their entirety, as has a portion of the trespass claim. (Doc. Nos. 127, 242.)
On December 21, 2009, the Government filed a motion for partial summary judgment solely on Plaintiffs' malicious prosecution and abuse of process claims. On December 28, 2009, Plaintiffs attempted to file an opposition to the Motion, but the Court ordered that filing stricken on January 5, 2010, due to various violations of Local Rules and the Court's Standing Order. (Doc. No. 258.)
On January 7, 2010, Plaintiffs filed an amended memorandum in opposition to the Motion, an "Amended Separate Statement of Genuine Issues" ("PSGI"), a Declaration of Julia Davis, and 80 supporting exhibits.*fn4
On January 14, 2010, the Government filed a Reply and Plaintiffs filed a "Supplemental Brief in Opposition." The Government filed a Response to this Brief on January 20, 2010. The propriety and merits of these filings are discussed separately below.
Before resolving the merits of the Motion, the Court first must address serious problems presented by the evidence submitted and relied upon by both the Government and Plaintiffs.
A. The Government's Evidence
As required by the Local Rules of this Court, the Government filed a Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion for Partial Summary Judgment. (Doc. No. 246-1 ("DSUF").) In the DSUF, the Government stated:
The United States incorporates the Uncontroverted Facts submitted by Co-Defendants Herbert Kaufer and Jeffery [sic] Deal [Doc. Nos. 244-3 and 239-3] and exhibits, by reference to its Statement of Uncontroverted Facts and Conclusions of Law. (DSUF ¶ 1 (alterations in original).) In the DSUF, the Government cites to deposition testimony lodged with the Court only in connection with Defendant Kaufer's Motion for Summary Judgment. (DSUF ¶ 3.) Plaintiffs object to this "incorporation." (PSGI ¶ 1.)
The Ninth Circuit has held that, when deciding a summary judgment motion, a court need not "perform a search, unassisted by counsel, through the entire record, to look for evidence" that creates a genuine issue of material fact. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). See also Orr v. Bank of Am., 285 F.3d 764, 774-75 (9th Cir. 2002) (failure to cite to page and line number of deposition testimony in Statement of Undisputed Facts warrants exclusion of evidence). But "Rule 56 may be adequately satisfied by a lawyer designating where (outside the opposition papers) the critical evidence can be found and what it says, though ordinarily the better practice would be to photocopy and attach the evidence to the opposition papers." Carmen, 237 F.3d at 1030.
The rule set out in Carmen applies equally to evidence submitted in support of a motion for summary judgment, and the Court need not scour the record to find support for uncontroverted facts. "Judges are not like pigs, hunting for truffles buried in briefs." Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003), quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). The Government thus cannot generally "incorporate" the Statements of Facts and exhibits filed by Deal and Kaufer en toto. The Court may only consider the evidence that the Government has specifically identified, i.e., only the deposition testimony of Julia Davis lodged in connection with Kaufer's motion.
Even if it was not attached to the Government's motion, this testimony can be considered so long as it is a part of the record -- but it is not here. Agent Kaufer's Motion for Summary Judgment was withdrawn on December 21, 2009.*fn5 "The effect of withdrawal of a motion is to leave the record as it stood prior to the filing as though the motion had never been made." 56 Am. Jur. 2d Motions, Rules, and Orders § 32. See also Caldwell-Baker Co. v. S. Ill. Railcar Co., 225 F. Supp. 2d 1243, 1259 (D. Kan. 2002); Remley v. Lockheed Martin Corp., No. C00-2495CRB, 2001 WL 681257, at *2- *3 (N.D. Cal. 2001). Hence, neither Agent Kaufer's motion nor any of the documents and exhibits filed in support of it remain a part of the record in this case. The Court thus SUSTAINS Plaintiffs' objection to the admission of the deposition transcript, as well as all references to filings and evidence submitted in connection with the now-withdrawn motions.*fn6
1. Plaintiffs' Amended Separate Statement of Genuine Issues
In its January 5, 2010 Order, the Court noted that Plaintiffs' Separate Statement of Genuine Issues violated Local Rule 56-2, in that it was not 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." (Doc. No. 258 at p. 2.) In connection with their Amended Opposition, Plaintiffs filed an Amended Separate Statement of Genuine Issues. In this filing, Plaintiffs include extensive legal arguments about their theory of the case in the guise of "responses" to the Government's undisputed facts. See, e.g., PSGI ¶ 2 (2.5 page response discussing search of Davises' residence as response to undisputed fact regarding mailing of correspondence to San Bernardino County District Attorney). In doing so, Plaintiffs fail to accomplish the purpose of an SGI: to identify clearly what facts are in dispute.
2. Julia Davis's Declaration
Plaintiffs have produced a 37-page declaration from Plaintiff Julia Davis. Much of the declaration is inadmissible, as it includes statements as to the feelings, intent and knowledge of other individuals and entities,*fn7 which lack foundation, as they have no basis in either Mrs. Davis's personal knowledge or the attached exhibits, and statements of legal argument and legal conclusion,*fn8 which are inappropriate in a Rule 56(e) declaration. See Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (rejecting affidavit submitted in connection with summary judgment that failed to "affirmatively show personal knowledge of specific facts"); Silver v. Executive Car Leasing Long-Term Disability Plan, 466 F.3d 727, 732 n. 2 (9th Cir. 2006) (affirming exclusion of declaration which contained legal argument under Rule 56, noting such argument is "not appropriate for a declaration"). The Court does not consider any such statements.
Plaintiffs also seek to introduce 80 exhibits through Julia Davis's declaration. The proper foundation for these exhibits "need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902." Sec. & Exch. Comm'n v. Phan, 500 F.3d 895, 913 (9th Cir. 2007), quoting Orr, 285 F.3d at 774. Several of these exhibits are not sufficiently authenticated, lack foundation, or are otherwise inadmissible, though, and thus the Court cannot consider them.*fn9
Exhibit 45 is a document labeled "Confidential," with no other indication as to what it is. In Davis's Declaration, she merely states that the document is a "true and correct copy of a document produced by the government in the Case No. CR 05-757-AHM and Bates Numbered 624 to 625." (Davis Decl. ¶ 130.) This statement fails to identify what the document is, and thus the exhibit lacks foundation and is inadmissible. See, e.g., Bellah v. Am. Airlines, Inc., 656 F. Supp. 2d 1207, 1210 n. 4 (E.D. Cal. 2009); Calloway v. Contra Costa County Jail Corr. Officers, No. C 01-2689 SBA, 2007 WL 134581, at *12 (N.D. Cal. Jan. 16, 2007).
Exhibit 17 is an "excerpt of an OPR interview with Officer Carolina Cisneros." (Davis Decl. ¶ 102.) "A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent." Orr, 285 F.3d at 774, citing Fed. R. Evid. 901(b); Fed. R. Civ. P. 56(e) & 30(f)(1). The excerpt provided includes none of these features, and Davis cannot authenticate this exhibit by stating merely that it is a "true and correct copy" of the transcript. See Orr, 285 F.3d at 776. Two other exhibits are similarly unauthenticated transcript excerpts. (Davis Decl., Exs. 35, 37.) All three exhibits are inadmissible, and not considered by the Court.
Exhibit 48, the Declaration of Attorney Peter Szabadi, which is cited for the legal conclusions as to who could give consent for a search of corporate property under Nevada law and whether Mr. Davis had an "expectation of privacy" under federal constitutional law, Davis Decl. ¶¶ 55-56, is inadmissible for these purposes. See Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058-59 (9th Cir. 2008).
3. Plaintiffs' Supplemental Brief
On January 14, 2010, Plaintiffs filed a "Supplemental Brief in Opposition to the United States Motion for Partial Summary Judgment," along with several accompanying exhibits.*fn10 The Brief concerns a July 20, 2007 report prepared by the DHS Office of Inspector General ("OIG") ("the OIG Report") at the conclusion of an investigation into many of the events at issue in this action.
Plaintiffs contend that they did not learn of the existence of the OIG Report until a deposition conducted on November 12, 2009, and they subsequently discovered that one of the Government's experts had reviewed the report in preparing his expert testimony. (Shayesteh Decl. ¶¶ 2-3.) The Government produced a copy of the OIG Report on December 22, 2009. (Id. ¶ 5.) This copy did not include most of the exhibits attached to the original, however, and a section of the Report was redacted. (Id.) On January 11, 2010, the Government produced an unredacted version of the OIG Report, which included statements made by Assistant United States Attorney John Lee to OIG investigators. (Id. at ¶ 8.)
In the Supplemental Brief, Plaintiffs ask the Court to (1) consider the unredacted version of the OIG Report in ruling on this motion and (2) compel the production of the exhibits attached to the original report.
The Court has reviewed the unredacted material and finds it has no impact on the pending motion, as it only speaks to why the federal immigration fraud charges were dismissed and whether they should have been filed in the first instance. As the Court explains below, Plaintiffs' claims regarding these issues are barred as a matter of law. Moreover, the unredacted OIG Report is subject to a protective order in this case, and Plaintiffs failed to comply with the terms of that order, which requires such documents to be filed under seal. (Doc. No. 78; Pls.' Supp. Br., Ex. 4.) The Government has thus requested the Court order this and all other exhibits to Plaintiffs' Supplemental Brief be not only stricken, but deleted from the Court's electronic filing system. That request is granted in a separate minute order.
As to the exhibits that Plaintiffs would have the Court summarily order the Government to produce, Plaintiffs cite no authority or justification for such extraordinary relief, long after any and all discovery deadlines have passed. Moreover, in its response to Plaintiffs' Supplemental Brief, the Government has indicated that it has now produced the exhibits to Plaintiffs' counsel. (Lantka Decl. ¶ 11.)
Accordingly, the Court orders Plaintiffs' Supplemental Brief and all accompanying exhibits STRICKEN.
III. UNCONTROVERTED FACTS
The following facts are supported adequately by admissible evidence and are uncontroverted by admissible evidence on the record. They are "admitted to exist without controversy" for the purposes of this Motion. See Local Rule 56-3.
A. Julia Davis's Employment with CBP
1. The Sexual Harassment Complaint and Investigation
In 2002, Julia Davis began employment as a Customs and Border Protection ("CBP") Agent, stationed at the Port of Entry in San Ysidro, California ("the Port"). (Davis Decl. ¶¶ 5-6.) Soon after beginning her employment, her supervisor, Kevin Crusilla, began to sexually harass her. (Davis Decl. ¶¶ 6-7, Ex. 1 (June 17, 2005 Order and Opinion of Equal Employment Opportunity Commission ("EEOC") Administrative Law Judge ("ALJ") ("EEOC Op.") at p. 5.)*fn11 She reported the harassment to numerous supervisors, to no avail, before escalating her complaint to the Deputy Port Director. (Davis Decl. ¶¶ 7-8, EEOC Op. at p. 7.) The Deputy Port Director told Davis a full investigation would be launched by the DHS OIG. (Davis Decl. ¶ 8, EEOC Op. at p. 7.) The harassment nonetheless continued. (Id.)
Julia Davis then obtained a Temporary Restraining Order and Preliminary Injunction from the California Superior Court ordering Crusilla not to harass her. (Davis Decl. ¶ 9; EEOC Op. at 8.)
At some point, Julia Davis lodged a sexual harassment complaint with the DHS Office of Professional Responsibility, the office in which Agents Deal and Kaufer worked. (Davis Decl. ¶ 11.) She also filed a grievance against DHS with the EEOC. (Davis Decl. ¶ 12.) Crusilla refused to cooperate with either the OIG or EEOC, and was allowed to retire without penalty in October 2003. (Davis Decl. ¶ 13, Ex. 12, EEOC Op. at p. 9.) A November 2003 ICE Office of Internal Audit investigation substantiated Davis's sexual harassment allegations, but no action was taken due to Crusilla's retirement. (Davis Decl., Ex. 12.)
On June 25, 2005, the EEOC ALJ issued a preliminary decision finding Davis had been subjected to unlawful sexual harassment, awarded her $145,500 in compensatory damages, and ordered the development of sexual harassment policies and procedures and mandated sexual harassment training at the Port. (EEOC Op. at pp. 18, 21-25.)*fn12
2. Julia Davis's Reports of "Security Breaches" and Investigations
In the summer of 2004, Julia Davis sent several letters to various supervisors and DHS officials about what she saw as threats to security at the Port.
In June 2004, Davis sent a letter to the Port Director expressing concern over the reduction of security staff and removal of metal detectors and X-ray equipment from the Port. (Davis Decl. ¶ 24, Ex. 13.) Also in June 2004, Davis sent a letter to the DHS OIG, describing an incident where she observed an Assistant Port Director instruct a CBP Agent to falsify a person's nationality on several documents. (Davis Decl. ¶ 25, Ex. 14). On August ...