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Sommer v. United States

May 10, 2010


The opinion of the court was delivered by: Hayes, Judge


The matters before the Court are the Motion to Dismiss filed by Defendants Bonnie Dumanis and Laura Gunn, the District Attorney and Deputy District Attorney for the County of San Diego (Doc. # 4), the Motion to Dismiss filed by Defendant Glenn N. Wagner, the Medical Examiner for the County of San Diego (Doc. # 5), and the Motion to Dismiss filed by Defendant the United States of America (Doc. # 15).


Plaintiff Cynthia Sommer initiated this action by filing a Complaint on September 24, 2009. (Doc. # 1). Plaintiff alleges claims for: (1) violation of 42 U.S.C. § 1983; (2) violation of 42 U.S.C. §§ 1985 and 1986; (3) violation of the Federal Tort Claims Act ("FTCA"); and (4) a permanent injunction. On October 23, 2009, Defendants Bonnie Dumanis ("Dumanis"), San Diego's District Attorney, and Laura Gunn ("Gunn"), San Diego's Deputy District Attorney, filed their Motion to Dismiss. (Doc. # 4). On October 27, 2009, Defendant Glenn N. Wagner ("Wagner"), the Medical Examiner for the County of San Diego, filed his Motion to Dismiss. (Doc. # 5). On December 21, 2009, Defendant the United States of America filed its Motion to Dismiss. (Doc. # 15). On January 26, 2010, Plaintiff filed a Non-Opposition to the United States of America's Motion to Dismiss. (Doc. # 18).


Plaintiff alleges that in February of 2002, Plaintiff's husband, Todd Sommer, a 23-year-old Sergeant in the United States Marine Corps, died of a cardiac arrhythmia. (Doc. # 1 at ¶ 1). Plaintiff alleges she was tried and convicted for murdering her husband. Id. at ¶¶ 1-2. Plaintiff alleges Todd Sommer collapsed in the early morning of February 18, 2002.

Id. at ¶ 12. Plaintiff alleges she called 911 and attempted CPR. Id. Plaintiff alleges Todd Sommer was pronounced dead at the hospital approximately half an hour later. Id. at ¶ 13. Plaintiff alleges Dr. Stephen L. Robinson performed an autopsy and concluded that Todd Sommer had died of cardiac arrhythmia. Id. at ¶¶ 14-18. Plaintiff alleges Dr. Robinson did not find any signs of poisoning. Id. at ¶ 17. Plaintiff alleges Dr. Robinson preserved tissue samples during the autopsy. Id. Plaintiff alleges Dr. Robinson forwarded the report to Dr. Brian D. Blackbourne, then the Chief Medical Examiner for the County of San Diego. Id. at ¶ 19. Plaintiff alleges Dr. Blackbourne agreed with Dr. Robinson that Todd Sommer had died of natural causes. Id. Plaintiff alleges Dr. Blackbourne issued a death certificate which identified the manner of death as natural and the probable cause of death as cardiac arrhythmia of undetermined etiology. Id.

Plaintiff alleges that despite the results of the autopsy and the Medical Examiner's opinion, "Defendants refused to accept those results and embarked upon an investigation intended to find criminal conduct" by Plaintiff. Id. at ¶ 21. Plaintiff alleges that instead of relying on scientific evidence, Defendants focused on her "conduct and breast implants" which they believed "proved that she had murdered her husband." Id. at ¶ 22. Plaintiff alleges that Defendants were "[d]esperate for any evidence to justify their continued investigation" and sent tissue samples to the Environmental Division of the Armed Forces Institute of Pathology ("AFIP"). Id. at ¶ 23. Wagner, now the Chief Medical Examiner for the County of San Diego, was at that time the director of AFIP "and was responsible for final oversight of all work performed at the lab." Id.

Plaintiff alleges AFIP "purportedly found extremely high levels of arsenic in two of six tissue samples," which shows "the samples were negligently or intentionally contaminated" because "arsenic is ubiquitous." Id. at ¶ 24. Plaintiff alleges all of the tissue samples, as well as Todd Sommer's blood and urine, "should have shown high levels of arsenic" if the test results were accurate. Id. Plaintiff alleges Defendant Jose Centeno, the lab director, "believed that the two tissue[ samples] that tested positive for arsenic had likely been contaminated, possibly coming into contact with arsenic . . . ." Id. Plaintiff alleges Defendants knew or should have known that AFIP was not a competent testing facility and that Defendants chose the lab because they knew "a competent testing facility would conclusively prove that Todd Sommer did not die of arsenic poisoning." Id. at ¶ 25. Plaintiff alleges the Environmental Division of AFIP did not normally perform this type of testing and performed the tests on a newly purchased piece of equipment which the lab technicians were using for the first time. Id. at ¶ 26. Plaintiff alleges Defendants were also aware that there had been "over sixteen breaks in the chain of custody" after AFIP had received the samples and that "[t]issues that are not properly maintained are susceptible to contamination," which can "produce false positives for arsenic." Id. at ¶ 27. Plaintiff alleges the level of arsenic found by the tests "clearly showed AFIP's test results were inaccurate" because "[t]he results were so unusually high that such findings had never been seen in the history of reported arsenic testing and exceeded any previously reported contamination levels by approximately . . . 1250%." Id. Plaintiff alleges the test results were "contradicted by the autopsy results . . . [which] showed no indication of . . . damage to the internal organs or blood vessels." Id. at ¶ 28. Plaintiff alleges Todd Sommer did not exhibit symptoms of arsenic poisoning before his death. Id.

Plaintiff alleges "[d]uring their investigation prior to Mrs. Sommer's arrest, Defendants consulted with several qualified independent forensic toxicologists . . . . [who] refused to concur in the results of the testing performed by AFIP [because] the results were demonstrably false." Id. at ¶ 29. Plaintiff alleges one such expert, Alphonse Poklis, "a highly respected forensic pathologist and [] leading expert in arsenic poisoning," told Defendants there was "no evidence that Todd Sommer died of arsenic poisoning" and that the test results were "false." Id. at ¶ 30. Plaintiff alleges Defendants Dumanis and Gunn "knew or should have known during the investigation . . . that there was no evidence" that Plaintiff killed Todd Sommer. Id. at ¶ 32. Plaintiff alleges Dumanis and Gunn "believed that a high-profile arrest and conviction would serve their personal goals and make the D[istrict] A[attorney's] O[ffice] famous." Id. at ¶ 33. Plaintiff alleges Dumanis and Gunn sought to change Todd Sommer's death certificate to homicide by arsenic poisoning "so that they could make their pieces fit" and go forward with a prosecution. Id. at ¶ 34. Plaintiff alleges Dumanis and Gunn convinced Wagner, who had left his position as head of AFIP to become the Chief Medical Examiner for the County of San Diego during the Sommer investigation, to change the death certificate. Id. at ¶ 35.

Plaintiff alleges Wagner "knew or should have known that the AFIP test results were corrupt, false, and possibly fabricated," especially in light of an email exchange between Wagner and Centeno, the scientist who conducted the test. Id. at ¶ 36. Plaintiff alleges Wagner emailed Centeno to ask for an explanation of the high level of arsenic found in two samples while the other four samples and Todd Sommer's blood and urine were negative. Id. Plaintiff alleges Centeno replied that he did not have a good explanation and that he suspected the tissue samples had become contaminated. Id. Plaintiff alleges Wagner knew or should have known that the test results were fabricated, but nonetheless changed Todd Sommer's cause of death to cover up the problems at AFIP and avoid "public embarrassment" and protect his "professional image." Id. at ¶ 39. Plaintiff alleges Defendants, including Wagner, were aware of another set of samples "buried in a box in a closet at the Balboa Naval Hospital," but "chose not to send the preserved tissue samples out for testing." Id. at ¶¶ 38, 42.

Plaintiff alleges that she was arrested and charged with murdering Todd Sommer on November 30, 2005. Id. at ¶ 47. Plaintiff alleges Defendants used the publicity surrounding her arrest and trial to "maliciously disclose[] personal and private information about [her] further sensationalizing the case." Id. at ¶ 49. Plaintiff alleges she was convicted of her husband's murder on January 30, 2007. Id. at ¶ 50. Plaintiff alleges on November 30, 2007, her conviction was overturned and she was granted a new trial. Id. at 52. Plaintiff alleges her criminal defense attorney sought access to the additional tissue samples, and Defendant Gunn twice told Plaintiff's attorney that the samples "no longer existed." Id. at ¶ 53. Plaintiff alleges that "without notifying Mrs. Sommer or her attorney" that the samples had been located, Defendants had these additional samples "tested at a highly respected private testing facility in Canada." Id. at ¶ 54. Plaintiff alleges that "[n]one of the tissue samples showed the presence of any arsenic whatsoever . . . . prov[ing] . . . Mrs. Sommer had been convicted of a crime that had never occurred." Id. On April 17, 2008, Plaintiff was released from custody. Id. at ¶ 56. Plaintiff alleges she had lost custody of her children and incurred $500,000 in legal fees. Id. Plaintiff alleges her reputation was ruined and that many people still believe she murdered her husband. Id. at ¶ 57.

Plaintiff alleges Defendants Dumanis and Gunn refused to dismiss the criminal charges against her with prejudice and continued to investigate her even after she had been released. Id. at ¶ 58. Plaintiff alleges Defendants have also refused to change Todd Sommer's official cause of death from homicide to natural causes. Id. at ¶ 60.

In support of Plaintiff's first claim for violation of § 1983, Plaintiff alleges the "State Defendants," including Dumanis, Gunn, and Wagner, "knew or had reason to know that the results of the testing conducted by AFIP Environmental were corrupt, false, fabricated, and completely lacking in credibility." Id. at ¶ 64. Plaintiff alleges the State Defendants "knew or should have known that the deliberate fabrication of false evidence . . . would result in [Plaintiff's] wrongful arrest, incarceration, and subsequent conviction . . . ." Id. at ¶ 65. Plaintiff alleges the state defendants acted with "malice and with the intent to vex, annoy, and harass Plaintiff" and to "inflict severe emotional distress" on Plaintiff. Id. at ¶ 67. Plaintiff alleges the District Attorney's Office and the Medical Examiner's Office "had a policy and custom of using, authorizing, ratifying, and/or covering up the use of corrupt, false, and fabricated evidence during their investigations." Id. at ¶ 68. Plaintiff alleges that she was deprived of her clearly established rights under the Fourth, Fifth, and Fourteenth Amendments. Id. at ¶ 69.

In support of her second claim for violation of §§ 1985 and 1986, Plaintiff alleges that the Federal Defendants, including the United States, violated her Fourth, Fifth, and Fourteenth Amendment rights by colluding to use "evidence they knew or should have known was corrupt, false, and fabricated" to build a case against Plaintiff and that in doing so, they acted under color of law. Id. at ¶ 72.

In support of her third claim for violation of the Federal Tort Claims Act, Plaintiff alleges agents and employees of the United States "negligently or intentionally used fabricated or contaminated evidence they knew or should have known was corrupt, false, and completely lacking in credibility" against Plaintiff. Id. at ¶ 79. Plaintiff alleges this constitutes "fraud, negligence, false imprisonment, assault, battery, defamation, intentional and negligent infliction of emotional distress, and invasion of privacy." Id. at ¶ 81.

In support of her fourth claim for a permanent injunction, Plaintiff alleges that the Defendants' wrongful conduct should be enjoined. Id. at ¶ 84. Plaintiff seeks the dismissal of the criminal charges against her with prejudice and seeks an order requiring the Medical Examiner's Office to change Todd Sommer's death certificate to state that he died of natural causes. Id. at ¶¶ 87- 88. Plaintiff also seeks an order requiring the District Attorney's Office, the Medical Examiner's Office, and the United States to require their employees to be trained to "comply with their legal duties with respect to the proper handling and use of evidence during criminal investigations." Id. at ¶ 89.


Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim for relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a ...

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