Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Congdon v. Lenke

February 4, 2010

MICHAEL GERARD CONGDON, PLAINTIFF,
v.
OFFICER LENKE, OFFICER T. OLIVER, AND FAIRFIELD POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Robert J. Bryan United States District Judge

ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

This matter comes before the court on the Defendants' Motion to Dismiss (Dkt. 29) and on the Defendants' Motion for Summary Judgment (Fed.R.Civ.P. 56(c)) (Dkt. 35). The court has considered the relevant pleadings and the file herein.

PROCEDURAL HISTORY

On May 5, 2008, plaintiff filed a civil case, pro se, against Officer Lenke, Officer Oliver, and the City of Fairfield Police Department. Dkt. 1. In his complaint, the plaintiff alleges that he suffered injuries to his head and eye after Officer Lenke and Officer Oliver allegedly beat him while detaining and arresting him. Dkt. 1. On January 21, 2009, the case was assigned to the undersigned judge. Dkt. 10. On May 4, 2009, the defendants filed their answer, which asserted 24 defenses. Dkt. 19.

1. MOTION TO DISMISS

On January 4, 2010, the defendants moved for dismissal on the basis that the plaintiff has failed to respond to discovery. Dkt. 29. In the alternative, the defendants requested that the Court compel the plaintiff to respond to discovery. Dkt. 29. The Court's Scheduling Order required the parties to have completed discovery by October 15, 2009, and required any dispositive motions to be filed and served by January 5, 2010. Dkt. 20. The plaintiff did not respond to the defendants' discovery requests.

On October 28, 2009, the Court ordered the plaintiff to provide complete responses to Defendants' Request for Production of Document[s] to Plaintiff Michael Gerard Congdon (Set One) [Dkt. 22-2, at 1-7]; to Defendants' Request for Production of Document[s] to Plaintiff Michael Gerard Congdon (Set One) [Dkt. 22-2, at 9-21]; and to Defendants' Special Interrogatories to Plaintiff Michael Gerard Congdon (Set One) [Dkt. 22-2, at 23-27]. Dkt. 27. In that order, the Court further informed the plaintiff that if he failed to properly and completely respond to the discovery requests by November 30, 2009, the Court would consider a request by defendants to impose sanctions, which could include monetary sanctions or dismissal of the case, or both. Dkt. 27. The plaintiff has never responded to the defendants' discovery and has failed to comply with the Court's order. The Court should dismiss the plaintiff's claims on this basis alone.

The defendants requested that the Court dismiss the plaintiff's claims because of the plaintiff's refusal to participate in discovery, and the defendants have also requested monetary sanctions against the plaintiff in the amount of $600.00 for preparing and bringing the instant motion. Dkt. 29. Monetary sanctions against the plaintiff are inappropriate because he has proceeded in forma pauperis (Dkt. 11) and he appears to have decided not to prosecute his case. Therefore, the defendants' request for monetary sanctions should be denied; however, the Defendants' Motion to Dismiss should be granted. In the alternative, the plaintiff's case should be dismissed with prejudice on the Defendants' Motion for Summary Judgment (Dkt. 35), as discussed below.

2. MOTION FOR SUMMARY JUDGMENT

A. PROCEDURAL HISTORY

On January 5, 2010, the defendants filed a Motion for Summary Judgment (Dkt. 35), and contended that (1) the defendants are not liable for violation of the plaintiff's Eight Amendment rights against "cruel and unusual punishment"; (2) Officer Lenke and Officer Oliver committed no constitutional violation under the Fourth Amendment or are at least entitled to qualified immunity because their conduct was reasonable; (3) the City of Fairfield is not liable to the plaintiff under the Fourth Amendment because the plaintiff has not alleged a policy, custom, practice, or act of ratification that would give rise to respondeat superior liability; and (4) the plaintiff is barred from asserting any state law claims against the City of Fairfield or its police officers because he has not complied with the California Government Claims Act. Dkt. 35. On January 8, 2010, this Court notified the plaintiff of his responsibility in responding to the Defendants' Motion for Summary Judgment. Dkt. 42. The plaintiff has not responded; however, the plaintiff claims generally in his complaint (Dkt. 1) and his deposition (Dkt. 37, Exhibit A) that the defendants violated his constitutional rights and he seeks to recover damages pursuant to 42 U.S.C. § 1983.

B. FAILURE TO RESPOND TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

When a party the plaintiff is suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), plaintiff cannot simply rely on what his complaint says. Instead, plaintiff must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Fed. R. Civ. P. 56(e), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine issue of material fact for trial. If plaintiff does not submit his own evidence in opposition, summary judgment, if appropriate, may be entered against him. If summary judgment is granted, plaintiff's case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).

Here, the defendants filed several declarations, including the Declaration of Officer Troy Oliver (Dkt. 39), the Declaration of Officer Robert Lenke (Dkt. 38), and the Declaration of Matthew A. Lavrinets. The plaintiff has not responded and has not set out specific contrary facts in declarations, depositions, answers to interrogatories, or authenticated documents. Because the plaintiff has not followed the applicable procedure, his claims should be dismissed. Alternatively, his claims should also be dismissed on the merits, the reasoning for which is discussed below.

C. FACTS

Robert Lenke and Troy Oliver are police officers employed by the City of Fairfield and both were so employed on February 1, 2008. Dkt. 34, p. 2. On February 1, 2008, Officer Oliver initiated a probation search of a mobile home located at 1427 West Texas Street, Unit 2, in Fairfield, California. Dkt. 34, p. 2. Prior to the probation search, Officer Oliver had received reports from an adjacent U-Haul business and from the property manager at 1427 West Texas Street that there had been a large amount of foot traffic surrounding Unit 2 during both day and night. Dkt. 34, p. 2. The property manager at 1427 West Texas Street informed Officer Oliver that Unit 2 was leased to Lorry Berry, and Officer Oliver then learned and confirmed that Ms. Berry was on probation and therefore subject to search and seizure. Dkt. 34, p. 2.

When Officer Oliver and other Fairfield police officers arrived on the scene to search Ms. Berry's unit, Officer Oliver noticed a green Chevy Camaro parked in the driveway in front of Unit 2, California license plate number 2WAE720. Dkt. 34, p. 2; Dkt. 37, Exhibit A, p. 41-2. The Chevy Camaro belonged to Michael Congdon. Dkt. 34, p. 2. Upon arrival at Unit 2, the police officers knocked on the front door and Ms. Berry and another person answered the door. Dkt. 34, p. 2. The officers had them come outside and sit down. Dkt. 34, p. 2. The officers heard more people inside of the mobile home, and the officers then opened the front door, announced themselves and directed everyone still in the mobile home to come outside. Dkt. 34, p. 2. In response to the officers' direction, Mr. Congdon and another person exited from the rear of the mobile home, and the officers also seated them in front of the home. Dkt. 34, p. 2.

Officer Oliver then searched Ms. Berry's mobile home pursuant to her probation search clause. Dkt. 34, p. 2. Inside the home the officers found various items of drugs and drug paraphernalia, including methamphetamine, multiple syringes, a scale, and plastic bags. Dkt. 34, p. 2. During Officer Oliver's search, some of the people who had exited the home, including Mr. Congdon, filled out Field Identification cards and were released from the scene. Dkt. 34, p. 2; Dkt. 37, Exhibit A, p. 49. After Mr. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.