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Jayne v. Sprint P.C.S.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 14, 2010

MICHAEL AARON JAYNE, PLAINTIFF,
v.
SPRINT P.C.S., ET AL., DEFENDANTS,

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff, a state parolee presently housed in the Shasta County Jail, proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Sole remaining defendants*fn1 City of Anderson, Collier and Blunk (hereafter "defendants") filed a motion for summary judgment. Plaintiff filed an opposition, and defendants filed a reply.

On June 17, 2010, plaintiff filed an objection to defendants' reply, and a supplemental declaration. Plaintiff is advised that the Local Rules do not provide for a surreply. Local Rule 230(l) contemplates the filing of only a motion, opposition and reply. The court did not request the filing of a surreply; thus, plaintiff's objection will be disregarded. However, because plaintiff is proceeding without counsel, the court will consider his supplemental declaration signed June 13, 2010. (Dkt. No. 133 at 15-16.)

II. Allegations*fn2

This case is proceeding on the original complaint (Compl.), filed November 26, 2007. (Dkt No. 1.) Plaintiff alleges that after alleged victim Shandra Kessler went to the Anderson Police Department to seek a restraining order against plaintiff,

The Anderson Police then maliciously contacted Parole Agent Randy Abney knowingly bypassing [plaintiff's] assigned Parole Agent so Randy Abney could go after the plaintiff. Anderson Police officers Blunk, Collier and Dispatch coerced [complaining witness] Miss Kessler into saying the plaintiff held her against her will for 6 hours. Then these officers illegally sent [an] exigent circumstance request/demand to the plaintiff's cell phone provider saying he was wanted for kidnapping and to provide his cell records and G.P.S. location without a warrant or real cause.

(Id. at 7.) Plaintiff alleges Sprint then provided the cell phone records to the Anderson City Police Department. (Id.) Plaintiff contends these actions violated his Fourth Amendment rights.

III. Motion for Summary Judgment

Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotations omitted). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), impliedly overruled in part on other grounds by Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1577-78 (9th Cir. 1990).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).

In this case, on April 15, 2008, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. 14); see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

IV. Undisputed Facts*fn3

1. Defendants did not obtain a warrant before seeking plaintiff's cell phone records from Sprint Nextel.

2. At the time the cell phone records were sought, plaintiff was on parole.

3. On March 17, 2007, Ms. Shanda Kessler contacted the Anderson Police Department and advised that plaintiff was calling her and making threats and she was fearful of him. Ms. Kessler's call was initially entered in dispatch records as an "Advice" call and then later logged in as a "Kidnapping Report."*fn4 (Dkt. 99 at 2.)

4. On March 18, 2007, Ms. Shanda Kessler met with Sgt. Steve Blunk of the Anderson Police Department and reported that beginning on March 9, 2007, and up to the date of that meeting with defendant Blunk, she had been stalked, threatened and falsely imprisoned by plaintiff.*fn5 (Dkt. 99 at 2.)

5. On March 18, 2007, during her meeting with defendant Blunk, Kessler reported that on March 12, 2007, plaintiff physically restrained her, kept her in her residence against her will for 6 hours, ripped out her phone cord, and threatened her to not contact the police.*fn6 (Dkt. 99 at 3.)

6. On March 18 and 19, 2007, defendant Blunk confirmed Kessler's story by doing the following: (a) overhearing a cell phone conversation between Kessler and Kevin Jayne, attorney brother of plaintiff, in which Kevin Jayne confirms his brother's wrongful conduct and advises Kessler to stay away from his brother; (b) recording 13 cell phone messages and 9 home phone messages left by plaintiff; (c) receiving a copy of 52 threatening text messages sent to Kessler by plaintiff; (d) verifying the absence of text messages and phone messages during the 6 hours Kessler was allegedly falsely imprisoned by plaintiff; (e) corroborating Kessler's claims by interviewing witness Cory Jennings; (f) corroborating Kessler's claims by interviewing victim Ralph Nasworthy; and (g) requiring Kessler to write out a 3 page handwritten statement setting forth why she feared for her safety and why she needed a restraining order.*fn7 (Dkt. No. 99 at 3-4.)

7. On March 18, 2007, defendant Blunk confirmed plaintiff was a parolee, with a release date of June 5, 2004, and a prior conviction for resisting an officer with a firearm.*fn8 (Dkt. No. 99 at 4.)

8. On March 19, 2007, defendant Blunk completed his initial investigative report and forwarded copies to the Shasta County District Attorney and Parole Agents Ben Anonuevo and Randy Abney. (Dkt. 99 at 4; Dkt. 124 at 3.)

9. On March 20, 2007, Parole Officer Randy Abney interviewed Kessler and Kitrell Wyrick, at Kessler's residence. Parole Officer Abney was familiar with plaintiff and had received information about his current activities from defendant Blunk.*fn9 (Dkt. No. 99 at 5.)

10. On March 20, 2007, Parole Officer Abney was advised by Shanda Kessler that plaintiff had been in possession of an assault style rifle and a semi-automatic handgun within the last 2 weeks. Kessler then confirmed this claim to Officer Abney by showing him a video clip of what she claimed to be plaintiff firing an SKS or AK-47 assault rifle.*fn10 (Dkt. No. 99 at 5.)

11. On March 20, 2007, Parole Officer Abney was interviewing Kitrell Wyrick in the presence of Kessler when plaintiff allegedly called Wyrick on his cell phone. Wyrick was staying with Kessler allegedly to protect Kessler from plaintiff. Parole Officer Abney is familiar with plaintiff's voice and he heard plaintiff tell Wyrick that he was going to put a "bullet in [his] fucking head," after which he would then "kill [his] family."*fn11 (Dkt. No. 99 at 5-6.)

12. On March 20, 2007, Parole Officer Abney was at Kessler's residence for approximately 30 minutes and personally heard plaintiff call Kessler's cell phone, Wyrick's cell phone, and Kessler's residence phone, no less than 10 times threatening to shoot them.*fn12 (Dkt. No. 99 at 6.)

13. On March 20, 2007, Parole Officer Abney had a good faith belief that plaintiff was a clear and present danger to Kessler, other citizens and law enforcement officers based on plaintiff's prior criminal record, his recent criminal activity involving Kessler, his confirmed threats to inflict serious bodily harm on Kessler and others, his capacity to act to fulfill his threats, and the fact that his whereabouts were unknown to all concerned. Officer Abney then made efforts to locate plaintiff, which efforts were unsuccessful.*fn13 (Dkt. No. 99 at 6-7.)

14. In the late afternoon of March 20, 2007, Kessler notified Parole Officer Abney that plaintiff allegedly called her and identified himself as Officer Brian Marker. While pretending to be Officer Marker, plaintiff asked Kessler a number of questions about what she relayed to the Anderson Police Department and where she thought plaintiff might be found.*fn14 (Dkt. No. 99 at 7.)

15. On March 21, 2007, Parole Officer Abney received a call from Kessler in which she advised that plaintiff had repeatedly called her house during the night and threatened to "put a bullet in her fucking head," "also put a bullet in Kitrell's (Wyrick's) head," and kill Wyrick's younger sister.*fn15 (Dkt. No. 99 at 7.)

16. On March 21, 2007, Parole Officer Abney spoke with Ms. Amanda Maason who is friends with both Kessler and plaintiff. Maason advised Officer Abney that plaintiff had called her and said he knew he was going back to prison and he had nothing to lose by killing Kitrell Wyrick. Maason stated she told plaintiff to turn himself in and plaintiff responded that he was not going back to prison and "this event was going to end in a shootout with the police."*fn16 (Dkt. No. 99 at 7-8.)

17. On March 21, 2007, defendant Collier of the Anderson Police Department met with Ms. Shanda Kessler and Mr. Kitrell Wyrick at Ms. Kessler's residence to conduct a follow-up interview. Ms. Kessler then met with defendant Collier at the Anderson Police Department and provided both a verbal statement and a 6 page written statement. (Dkt. 99 at 8; Dkt. 124 at 6.)

18. On March 21, 2007, defendant Collier was advised by Kessler about many of the incidents, phone calls, and acts allegedly committed by plaintiff, and was advised that at 0300 hours that morning plaintiff had called her and said, "he was going to put a bullet in her head," "he was going to kill all of her family one by one," and he would "kill her before he goes down."*fn17 (Dkt. No. 99 at 8-9.)

19. On March 21, 2007, defendant Collier received a four page fax regarding interviews Parole Officer Abney had conducted in the matter and a 4 page fax from Mr. Ralph Nasworthy regarding the damage plaintiff allegedly did to his vehicle.*fn18 (Dkt. No. 99 at 9.)

20. On March 22, 2007, Parole Officer Abney completed his report and forwarded a copy to the Anderson Police Department to be attached to APD Case No. 07-4409. Officer Abney also referred the matter to the Shasta County District Attorney requesting charges including PC 422, PC 136.1(c)(1), PC 146(a), and PC 12021. (Dkt. 99 at 9; Dkt. 124 at 7.)

21. In the early morning hours of March 22, 2007, Public Safety Dispatcher Sarah Bennett ("Dispatcher Bennett"), not a named defendant herein, was on duty at the Anderson Police Department and working under the supervision of Anderson Police Sgt. Bryan Van Dyke (not a defendant). As a result of reviewing departmental records and attending end of shift briefing sessions, Dispatcher Bennett and Sgt. Van Dyke were aware of the ongoing criminal activities of plaintiff, aware of plaintiff's prior record for committing violent offenses, aware that plaintiff was a parolee, and aware of the danger to various citizens and law enforcement personnel that existed as long as plaintiff's whereabouts were unknown.*fn19 (Dkt. No. 99 at 10.)

22. Because Dispatcher Bennett was aware plaintiff was continuing to use his cell phone to threaten Kessler and a number of other citizens, she discussed with her supervisor, Sgt. Van Dyke, the possibility of attempting to locate plaintiff by determining the location of his cell phone.*fn20 (Dkt. No. 99 at 11.)

23. Sgt. Van Dyke authorized Dispatcher Bennett to proceed with the necessary steps to obtain plaintiff's cell phone location and cell phone records based on a good faith belief there were exigent circumstances which warranted use of every means possible to locate plaintiff and take him into custody.*fn21 (Dkt. No. 99 at 11.)

24. Dispatcher Bennett received and completed the Sprint Nextel exigent circumstances request form for the purpose of obtaining cell phone information pertaining to plaintiff. It was Dispatcher Bennett's understanding the form had to be completed to the satisfaction of Sprint Nextel Legal Compliance before Sprint Nextel would release any cell phone information and she further understood cell phone information pertaining to plaintiff would not be released unless there were exigent circumstances justifying the immediate release of information. (Dkt. 99 at 11; Dkt. 124 at 9.)

25. At the time Dispatcher Bennett completed the exigent circumstances form on behalf of the Anderson Police Department, she was informed and believed that exigent circumstances existed in the form of plaintiff's recent commission of violent felonies, his recent persistent threats to multiple citizens, including Kessler, that he would shoot them or kill them, his documented possession of firearms which would give him a present capacity to complete his threats to shoot or kill multiple citizens, his prior history of committing violent felonies, his multiple promises that he would resort to deadly force in an effort to not return to prison, and the fact his whereabouts were unknown despite efforts by law enforcement to locate and arrest him.*fn22 (Dkt. No. 99 at 12-14.)

26. At the time Dispatcher Bennett completed the exigent circumstances form on behalf of the Anderson Police Department, she was informed and believed that plaintiff had been consistently using his cell phone to communicate with victims and potential victims, to issue threats, and to procure information that would enable him to continue to evade law enforcement's efforts to arrest him.*fn23 (Dkt. No. 99 at 13.)

27. At the time Dispatcher Bennett completed the exigent circumstances form on behalf of the Anderson Police Department, she and Sgt. Van Dyke were informed and believed, based on the original CAD entry, that plaintiff was "a wanted parolee and wanted for kidnapping." At the time Dispatcher Bennett completed the exigent circumstances form she had not been advised that the original log entry stating a charge of "kidnapping" had been changed to a charge of "false imprisonment."*fn24 (Dkt. No. 99 at 13-14.)

28. Dispatcher Bennett reviewed all of the information she placed on the Sprint Nextel Exigent Circumstances form with her supervisor, Sgt. Bryan Van Dyke, prior to submitting the form to Sprint Nextel. Sgt. Van Dyke authorized Dispatcher Sarah Bennett to sign the form on his behalf because he had previously reviewed and authorized the request for information and then became unavailable to sign the form as a result of involvement in another criminal investigation. (Dkt. No. 99 at 14; Dkt. 124 at 12.)

29. Dispatcher Bennett sent the Mandatory Information For Exigent Circumstances Request form to Sprint Nextel Legal Compliance via facsimile transmission in the early morning hours of March 22, 2007. (Dkt. No. 99 at 14-15; Dkt. No. 124 at 13.)

30. A few hours after the exigent circumstances form was forwarded to Sprint Nextel Legal Compliance it was reviewed by another member of the Anderson Police Department, defendant Collier.

31. Defendant Collier observed that the exigent circumstances form listed the wanted offense for plaintiff as "kidnapping." She believed the offense under investigation at the Anderson Police Department was "false imprisonment" so she consulted with her superior, Captain Kirvin. (Dkt. No. 99 at 15; Dkt. No. 124 at 13.)

32. Approximately mid-morning on March 22, 2007, defendant Collier advised Sprint Nextel Legal Compliance that the Anderson Police Department wanted to withdraw its request for plaintiff's phone subscriber information and location. (Dkt. 99 at 15-16; Dkt. 124 at 13.)

33. At all times during the Anderson Police Department's consideration, review and request for plaintiff's cell phone location and his cell phone records, the individual officers and employees involved in the request were under a good faith and reasonable belief that exigent circumstances existed and warranted the request for plaintiff's cell phone information and no officer or employee sought to mislead Sprint Nextel regarding the grounds for determining the existence of exigent circumstances.*fn25 (Dkt. No. 99 at 16.)

34. No location information was received by the Anderson Police Department during the period of time the Department had an open request to Sprint Nextel for plaintiff's cell phone location and call records.*fn26 (Dkt. No. 99 at 16-17.)

35. Sprint Nextel advised the Anderson Police Department that during the period of time the Anderson Police Department had an open request for plaintiff's cell phone location and call records no location information or "ping" was detected. (Dkt. No. 99 at 17; Dkt. No. 124 at 15.)

36. After the Anderson Police Department's March 22, 2007 withdrawal of its request for cell phone location and call record information pertaining to plaintiff, it received records pertaining to plaintiff from Sprint Nextel.*fn27 (Dkt. No. 99 at 17.)

37. The records that were forwarded to the Anderson Police Department by Sprint Nextel were received by defendant Collier, were determined to pertain to plaintiff, and were then disregarded and destroyed.*fn28 (Dkt. No. 99 at 17.)

38. During the course of its investigation of plaintiff, the Anderson Police Department did not use or rely on any information or records received from Sprint Nextel.*fn29 (Dkt. No. 99 at 17-18.)

39. On March 23, 2007, defendant Collier completed her portion of APD Incident Report No. 07-4409, and asked that the report be forwarded to the District Attorney for review. (Dkt. No. 99 at 18; Dkt. No. 124 at 16.)

40. On August 28, 2007, defendant Collier was advised that plaintiff was in custody, had been arraigned and had been assigned legal counsel. Because plaintiff was represented, defendant Collier made no effort to contact him. No one at the Anderson Police Department had any personal contact with plaintiff at any time prior to his arrest. (Dkt. No. 99 at 18; Dkt. No. 124 at 16.)

41. Between March 23, 2007, and August 23, 2007, the only effort made by the Anderson Police Department to locate plaintiff was a traffic stop on a vehicle in which plaintiff was believed to be the driver. The subsequent traffic stop revealed the occupant to be plaintiff's brother-in-law. The Anderson Police Department made no other effort to locate or arrest plaintiff.*fn30 (Dkt. No. 99 at 18-19.)

42. On September 27, 2007, defendant Collier received a copy of a letter that had been written by plaintiff and received by Ms. Shanda Kessler and that letter was booked into evidence and a copy forwarded to the District Attorney. (Dkt. No. 99 at 19; Dkt. No. 124 at 17.)

43. The Anderson Police Department has had no further involvement with the investigation or prosecution of plaintiff since receipt of the evidence presented by Ms. Kessler on September 27, 2007. (Dkt. No. 99 at 19; Dkt. No. 124 at 18.)

V. Disputed Facts

1. Defendants contend plaintiff was on searchable parole;*fn31 whereas plaintiff contends he did not waive his right to be free from warrantless searches of his cell phone records. (Pl.'s June 17, 2010 Decl.)

2. Defendants contend the charge of kidnapping was mistakenly placed on the request directed to Sprint to obtain plaintiff's cell phone records. Plaintiff contends defendants knowingly misrepresented the basis for the exigent circumstances necessary to obtain his cell phone records, but that even a mistaken entry on the request form violates his Fourth Amendment rights.*fn32

3. Defendants contend exigent circumstances also justified the warrantless search. Plaintiff argues the circumstances of alleged false imprisonment did not justify the warrantless search.

VI. Analysis

Plaintiff claims defendants violated his Fourth Amendment rights. Defendants argue that summary adjudication should be granted in this case because they did not violate plaintiff's constitutional rights, or, in the alternative, they are entitled to qualified immunity.

Plaintiff alleges the Anderson Police maliciously contacted Parole Agent Randy Abney knowingly bypassing his assigned Parole Agent so Abney could go after the plaintiff. (Compl. at 7.) Defendant Anderson Police Department answered the complaint on behalf of Anderson Police "Dispatch." Plaintiff alleges defendants Blunk, Collier and "Dispatch" coerced Miss Kessler into saying plaintiff was held against her will for 6 hours. Then "these officers" illegally sent an exigent circumstance request to plaintiff's cell phone provider stating plaintiff was wanted for kidnapping. (Compl. at 7.) Finally, plaintiff contends defendants Collier and Blunk, and Dispatcher Bennett (not a defendant) provided the Redding Office of the FBI, specifically Special Agent Mike Skenn, with plaintiff's cell phone records. (Dkt. No. 133 at 16.) The court will address these claims seriatim.*fn33

A. Contacting Abney

Plaintiff claims the Anderson Police maliciously contacted Parole Agent Randy Abney knowingly bypassing plaintiff's assigned parole officer. However, it is undisputed that on March 19, 2007, defendant Blunk completed his initial investigative report and forwarded copies to the Shasta County District Attorney and Parole Agents Ben Anonuevo and Randy Abney. (Dkt. 99 at 4; Dkt. 124 at 3.) Plaintiff has provided no competent evidence to support his view that the contact was malicious or for the purpose of bypassing his assigned parole officer. Although plaintiff claims that he has had an "alarming history, in which Randy Abney has continued to harass [him], charge [him], follow [him] over the last 5 years," (Dkt. No. 121 at 2), plaintiff has provided no evidence to demonstrate that defendant Blunk was aware of that alleged history. Moreover, plaintiff has provided no evidence to demonstrate that defendant Blunk was required to contact plaintiff's assigned parole officer rather than Parole Officer Abney. Moreover, the undisputed fact demonstrates defendant Blunk notified both Anonuevo and Abney.

Plaintiff has failed to demonstrate a disputed issue of fact remains with regard to this allegation; thus, defendants are entitled to summary judgment on this claim.

B. Alleged Coercion

Plaintiff claims defendants coerced Kessler into saying plaintiff held her against her will for 6 hours. (Compl. at 7.)

Plaintiff has provided a declaration in which he declares the complaining victim, Shanda Kessler, was lying about the allegations against him, that Parole Officer Abney was out to get plaintiff, that Kessler was affiliated with the Vagos Motorcycle Club and was the girlfriend of Vagos President Kitrell Wyrick. (Dkt. 121 at 3-4.) Plaintiff also declares Abney and Kessler conspired to frame plaintiff on fabricated charges. (Id. at 5.)

Most significantly, plaintiff has provided no evidence to support the view that defendant Collier, defendant Blunk, or "Dispatch" were aware of these allegations at the time they took Kessler's report. In his opposition to the motion, plaintiff speculates that these officers should have known Kessler and Wyrick were not credible based on Kessler's alleged criminal record and Wyrick's alleged connections to the Vagos, because Anderson is a small town. Plaintiff also speculates that Dispatcher Sarah Bennett should have known that "kidnapping" was not the proper charge because the dispatch office is small and if there had been a kidnapping, she would have heard about it. Plaintiff's mere speculation, however, is insufficient to establish that a genuine issue of material fact exists.

Plaintiff's declaration is insufficient to raise an inference that defendants knew Kessler was allegedly lying.*fn34 A prior criminal record or association with a motorcycle gang does not preclude the possibility that someone was threatening Kessler at that time. Moreover, plaintiff admits he is awaiting trial on the charges pressed by Kessler (dkt. no 125 at 2); thus, her credibility has not yet been determined.

It is undisputed that no one at the Anderson Police Department had any personal contact with plaintiff at any time prior to his arrest. (Dkt. No. 99 at 18; Dkt. No. 124 at 16.) Because plaintiff was not present at the time of Kessler's report, he cannot provide a personal declaration as to what happened at that time. Plaintiff has provided no evidence to support his claim of coercion. He has not provided a declaration by Kessler stating she was coerced. He has provided no declaration from any witness to the alleged coercion. His belief that her testimony was coerced appears to be based solely on his own speculation regarding what happened. Moreover, he appears to contradict himself by his declaration that Abney and Kessler conspired to fabricate these charges against him, thus refuting any inference of coercion. (May 24, 2010 Decl. at 5-6.) Plaintiff has failed to demonstrate a material dispute of fact exists with regard to plaintiff's claim that defendants coerced Kessler. Thus, defendants are entitled to summary judgment on this claim.

C. The Warrantless Search

The court turns now to the warrantless search. It is undisputed that defendants did not obtain a warrant prior to seeking plaintiff's cell phone location and cell phone records. Defendants contend that no warrant was required because plaintiff consented to the search by executing a CDC form 1515 prior to his parole in 2004. Defendants argue that pursuant to California Penal Code § 3067,*fn35 plaintiff could not be released from prison without plaintiff's signature on this form. In pertinent part, the form states "You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." (Dkt. No. 103 at 9.) Defendants also contend exigent circumstances justified the warrantless search. In the alternative, defendants seek qualified immunity for their actions.

Defendants could not provide the CDC form 1515 signed by plaintiff, and believe it was purged from plaintiff's file. However, defendants have provided a declaration by Parole Officer Randy Abney, who states that on or before March 20, 2007, he had personal knowledge that, inter alia, when plaintiff was released on parole he signed and agreed to all of the standard terms and conditions of parole as set forth on CDC Form 1515 (Rev 05/01); that as a result of plaintiff's acceptance of parole, he was subject to the provisions of California Penal Code § 3067; and that as a result of that agreement, plaintiff agreed to be subject to search and seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and without cause. (Dkt. No. 103 at 2.)

Plaintiff counters that he did not agree to waive his right to be free from warrantless searches of his phone records, call logs or his Sprint Nextel cell phone. (June 17, 2010 Decl. at 2.) Plaintiff argues that even if Dispatcher Bennett's use of the term "kidnapping" was a mistake, it violates his Fourth Amendment rights, and that the "ECPA and SCA under 18 U.S.C. § 2701"*fn36 does not give immunity for such mistakes by police agencies. (Dkt. No. 125 at 14.)

Legal Standard

To prove a claim under § 1983, a plaintiff must: (1) "establish a violation of his constitutional rights" and (2) "show that the defendant's actions were taken under color of state law." Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (citation omitted). "Acting under color of state law is 'a jurisdictional requisite for a § 1983 action.'" Id. (quoting West v. Atkins, 487 U.S. 42, 46 (1988)).

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV.

The touchstone of the Fourth Amendment is reasonableness, which is determined by the degree to which it intrudes upon a person's privacy balanced against the degree to which it promotes legitimate governmental interests. Wyoming v. Houghton, 526 U.S. 295, 300 (1999). The Supreme Court has rejected the idea that parolees have no Fourth Amendment rights. Samson v. California, 547 U.S. 843, 850 n.2 (2006).*fn37 An examination of the "totality of the circumstances" is needed to determine whether a search is reasonable within the meaning of the Fourth Amendment. Id. at 848 (quoting United States v. Knights, 534 U.S. 112, 118 (2001)*fn38 ).

Searches of parolees must be based on knowledge that the target is on parole. See Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005).

Moreover, if a parolee has signed a parole condition allowing searches without a warrant by a law enforcement officers, an officer may conduct a warrantless, suspicionless search of a parolee's person or residence. Samson, 547 U.S. at 849-56; United States v. Lopez, 474 F.3d 1208, 1213-14 (9th Cir. 2007); Fitzgerald v. City of Los Angeles, 485 F.Supp.2d 1137, 1143 (C.D. Cal. 2007). However, for such a suspicionless search to be valid, the officer conducting the search must have prior knowledge of the person's parole status. Samson, 547 U.S. at 856 n.5.; Fitzgerald, 485 F.Supp.2d at 1143; In re Jaime P., 40 Cal.4th 128, 137, 51 Cal.Rptr.3d 430 (2006).

In addition, when faced with special law enforcement needs, the Supreme Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005), citing Illinois v. McArthur, 531 U.S. 326, 330 (2001).*fn39 For example, a warrantless search may be justified by exigent circumstances. Exigent circumstances are "those circumstances that would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." United States v. Brooks, 367 F.3d 1128, 1135 (9th Cir. 2004) (internal quotation marks and citations omitted). Exigent circumstances may exist even in the absence of hot pursuit, and "the gravity of the crime and likelihood that the suspect is armed may be considered when weighing the risk of danger." Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1171-72 (9th Cir. 2003).

A warrantless search of a seized cell phone, which results in the retrieval of a record of incoming calls to that phone, may be justified by exigent circumstances. See United States v. Parada, 289 F.Supp.2d 1291, 1303-04 (D.Kan.2003) ("Because a cell phone has a limited memory to store numbers, the agent recorded the numbers in the event that subsequent incoming calls effected the deletion or overwriting of the earlier stored numbers. This can occur whether the phone is turned on or off, so it is irrelevant whether the defendant or the officers turned on the phone . . . under these circumstances, the agent had the authority to immediately search or retrieve, as a matter of exigency, the cell phone's memory of stored numbers of incoming phone calls, in order to prevent the destruction of this evidence")*fn40 ; but see United States v. Morales-Ortiz, 376 F.Supp 2d 1131, 1141-1142 (exigent circumstances did not justify retrieval of a cell phone's memory where authorities, unlike those in Parada, appeared to have retrieved phone numbers and names, suggesting that authorities did more than merely record the incoming call list, and actually accessed the phone book's memory; contents of cell phone, despite the unlawful search, still held admissible based on the doctrine of inevitable discovery).

United States v. Santillan, 571 F.Supp.2d 1093, 1103 (D. Ariz. 2008) (motion to suppress evidence from cell phone denied). No party has provided, nor has this court found, a case addressing the warrantless search of cell phone records to locate the cell phone or access the cell phone records of a parolee accused of ongoing criminal activity.

However, the Supreme Court has made clear that warrantless searches of parolees may be sustained because parolees are subject to "intense supervision" and pose a problem of "re-integration" into society. Samson, 547 U.S. at 854. The person and residence of a parolee may be searched even if the police suspect no wrongdoing. Samson, 547 U.S. at 856; Lopez, 474 F.3d at 1213-1214. But "before conducting a warrantless search . . . law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched." Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc).

Analysis

Analyzing plaintiff's claim by the undisputed facts, drawing all reasonable inferences in favor of plaintiff, and examining the totality of the circumstances, the court finds no reasonable jury could find that defendant violated plaintiff's Fourth Amendment rights. The court finds that the legitimate governmental interests in locating plaintiff under exigent circumstances outweighed the intrusion into plaintiff's privacy.

People have an expectation of privacy in their whereabouts. Because the GPS in a cell phone or the "ping" to a cell site tower can reveal one's location, the intrusion on plaintiff's privacy was a serious one. Here, plaintiff's cell phone location and records were sought and obtained without a warrant. Usually pen registers and trap and traces require a warrant supported by probable cause. Indeed, here, defendants failed to address if any of the officers even discussed whether or not a warrant should be obtained.

However, it is undisputed that plaintiff was on parole at the time. Whether or not plaintiff signed Form 1515, as a parolee, plaintiff has significantly diminished privacy interests. Indeed, most parolees must keep their parole officers informed of their whereabouts, particularly their home and work addresses.

In addition, plaintiff has not demonstrated that defendants used the information either to locate plaintiff or review his records. The Anderson Police Department received no location information during the period of time the request to Sprint was pending. (UDF 34.)*fn41 It is undisputed that Sprint Nextel advised the Anderson Police Department that during the period of time the Anderson Police Department had an open request for plaintiff's cell phone location and call records no location information or "ping" was detected. (UDF 35.) The only documented effort to arrest plaintiff by an officer of the Anderson Police Department was the traffic stop on a vehicle the officer believed plaintiff was driving (his brother-in-law was the driver). (UDF 41.) It is undisputed that no one at the Anderson Police Department, including defendants, had any personal contact with plaintiff at any time prior to his arrest. (UDF 40.)

Although plaintiff claims the F.B.I. received the cell phone records from a "case agent" (dkt. No. 121 at 6), he has not provided any competent evidence that defendants provided those records, or that the records he viewed at the F.B.I. office were the same records obtained via the warrantless search at issue here. On the other hand, defendant Collier has provided a declaration stating the records were disregarded and destroyed. (UDF at 37.) Moreover, it is undisputed that defendant Collier was advised on August 28, 2007 that plaintiff was in custody.

(UDF 40.) It appears defendants did not arrest plaintiff.

The court turns now to analyzing the degree to which the warrantless search promoted legitimate governmental interests. Kessler contacted the Anderson Police Department with multiple complaints against plaintiff. In her March 17, 2007 contact, she claimed plaintiff was calling her, making threats against her, and that she was afraid of him. (UDF 3.) On March 18, 2007, Kessler met with defendant Blunk and stated that from March 9, 2007 through March 18, 2007, plaintiff stalked, threatened, and falsely imprisoned Kessler. (UDF 4.) During that meeting, Kessler claimed that on March 18, 2007, plaintiff physically restrained her, kept her in her residence against her will for 6 hours, ripped out her phone cord, and threatened her not to contact the police. (UDF 5.) Defendant Blunk then took steps to corroborate her allegations, and confirmed plaintiff was on parole. (UDF 6 & 7.)

On March 21, 2007, defendant Collier met with both Kessler and Wyrick and conducted a follow-up interview. (UDF 17.) Kessler related many of the incidents, phone calls, and acts allegedly committed by plaintiff, and was advised that at 0300 hours that morning, plaintiff had called her and said, "he was going to put a bullet in her head," "he was going to kill all of her family one by one," and he would "kill her before he goes down." (UDF 18.) On March 21, 2007, defendant Collier received Parole Officer Abney's four page fax regarding his interviews, and a four page fax from Mr. Ralph Nasworthy regarding damage he claimed plaintiff did to his vehicle. (UDF 19.)

The dire nature of Kessler's allegations, corroborated by defendant Blunk's actions (UDF 6), demonstrate that plaintiff posed an immediate threat to Kessler and warranted law enforcement efforts to locate and arrest plaintiff. Such efforts promoted legitimate governmental interests, not only because he posed a threat to Kessler, but because of his criminal history, he also posed a threat to law enforcement and the public. Moreover, the actions of Dispatcher Bennett and Sgt. Van Dyke were reasonable under the circumstances. Kessler's initial contact with the police on March 17, 2007, was logged into the CAD as a "Kidnapping Report." (UDF 3.) When Dispatcher Bennett completed the exigent circumstances form, she and Sgt. Van Dyke were informed and believed, based on the original CAD entry, that plaintiff was "a wanted parolee and wanted for kidnapping." At the time Dispatcher Bennett completed the exigent circumstances form she had not been advised that the original log entry stating a charge of "kidnapping" had been changed to a charge of "false imprisonment." (UDF 27.) Dispatcher Bennett, Sgt. Van Dyke, defendant Blunk and defendant Collier have all provided declarations affirming they had a good faith belief it was imperative to immediately arrest plaintiff and take him into custody as soon as possible for the safety of Kessler, for the safety of other citizens he had threatened, and to prevent him from committing further crimes.

A few hours later, when defendant Collier noticed that the form incorrectly stated kidnapping, she consulted with Captain Kirvin, her superior (UDF 30-31), and by mid-morning defendant Collier contacted Sprint Nextel Legal Compliance, advising the Anderson Police Department wanted to withdraw its request for plaintiff's cell phone location and records. (UDF 32.) Defendant Collier's decision to withdraw the request rather than simply change the term concerns this court. It raises an inference that she may have realized, or her supervisor may have informed her, that a warrantless search of cell phone records was inappropriate. She declares that "to her knowledge" the Anderson Police Department did not "utilize or rely on any information or records received from Sprint Nextel during the course of its investigation of plaintiff." (Dkt. No. 102 at 4.) These facts take away from defendants' claim that exigent circumstances existed. In addition, the fact that no further action was taken to locate plaintiff by defendant Blunk between March 23, 2007 and August 23, 2007, also detracts from a finding of exigent circumstances. If plaintiff were such a threat to Kessler and the community, a reasonable person would expect Anderson Police to continue their efforts to locate him.

The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Samson, 547 U.S. at 846, 856. Where "an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable." Knights, 534 U.S. at 121 (based upon suspicion that Knights had been involved in arson and vandalism and pursuant to the search condition of his probation, a warrantless search of his apartment did not violate the Fourth Amendment).

Here, plaintiff, a parolee, had significantly diminished privacy interests. The undisputed facts demonstrate there was a likelihood of further criminal activity. Given the then-perceived dire threat plaintiff posed to Kessler, based on her allegations and the corroboration by defendants Blunk and Collier, and plaintiff's criminal history, the efforts to establish plaintiff's whereabouts via the warrantless search of plaintiff's cell phone location and records promoted legitimate governmental interests, based on exigent circumstances. The facts that officers later withdrew the request and took no further investigatory action should not eviscerate the existence of exigent circumstances at the time the warrantless search was initiated.

Balancing the intrusion of plaintiff's Fourth Amendment interest against the countervailing interest of the government, the court finds that the legitimate governmental interests far outweighed the intrusion into plaintiff's privacy, particularly since he has a diminished privacy expectation as a parolee, no information as to his location was obtained,*fn42 and defendants did not use the cell phone records once received. The actions of named defendants, and Dispatcher Bennett and Sgt. Van Dyke (not named defendants), were reasonable under the totality of circumstances present here.*fn43

Plaintiff has failed to demonstrate there exists a material dispute of fact with regard to plaintiff's claim that the warrantless search violated his Fourth Amendment rights. Defendants are entitled to summary judgment on this claim.

D. Defendant Anderson Police Department

Defendant Anderson Police Department answered the complaint on behalf of Anderson Police "Dispatch." Plaintiff alleges defendants Blunk, Collier and "Dispatch" coerced Miss Kessler into saying plaintiff held her against her will for 6 hours. Then "these officers" illegally sent an exigent circumstance request to plaintiff's cell phone provider stating plaintiff was wanted for kidnapping. (Compl. at 7.)

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Supervisory personnel may not be held liable under § 1983 for the actions of their employees under a theory of respondeat superior. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). A supervisory official may be held liable if he or she was personally involved in a deprivation of the plaintiff's rights or if there is a sufficient causal connection between the supervisor's wrongful conduct and the alleged violation of rights. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). A causal connection may be established by showing that a supervisor set in motion a series of acts by others which the supervisor knew or reasonably should have known would cause others to inflict a constitutional violation. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984); Johnson, 588 F.2d at 743-44.

In the instant complaint, plaintiff fails to allege the Anderson Police Department set in motion any acts which the Department knew or should have known would cause its employees to inflict a constitutional violation. Plaintiff has adduced no evidence to show that the actions of named defendants were the result of any unlawful practices, policies or procedures of the Anderson Police Department. Nor did plaintiff's complaint raise any such allegation. Although a city police department can be held liable for its official policies or customs, it will not be held liable for an employee's actions outside of the scope of these policies or customs. Plaintiff has not shown that the Anderson Police Department has a policy that warrantless searches of cell phone records are authorized. Plaintiff has failed to demonstrate that a genuine issue of material fact remains as to this defendant. Defendants' motion for summary judgment as to defendant Anderson Police Department should be granted.

VII. Qualified Immunity

Because the court finds no Fourth Amendment violation under the totality of circumstances present here, it need not reach the issue of qualified immunity.

VIII. Conclusion

For all of the above reasons, IT IS HEREBY RECOMMENDED that the motion for summary judgment, Dkt. No. 97, be granted as to all defendants and this case be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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