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