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Sommer v. United States

September 10, 2010


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


The matters before the Court are the motions to dismiss filed by the "Unnamed Putative Defendant County of San Diego" (Doc. # 32), by Rob Terwilliger (Doc. # 35), by Jose Centano*fn1 (Doc. # 37), by Rick Rendon and Mark Ridley (Doc. # 38), by S.D. Adams (Doc. # 41), and by Glenn N. Wagner in his federal capacity (Doc. # 54).


On September 24, 2009, Plaintiff initiated this action by filing her Complaint. (Doc. # 1). On May 6, 2010, the "Unnamed Putative Defendant County of San Diego" moved to dismiss the Complaint. (Doc. # 32). On May 10, 2010, Defendant Rob Terwilliger moved to dismiss the Complaint. (Doc. # 35).

On May 10, 2010, the Court denied Defendants Bonnie Dumanis and Laura Gunn's Motion to Dismiss as to Plaintiff's 42 U.S.C. § 1983 claim and granted their motion to dismiss Plaintiff's claim for an injunction barring Dumanis and Gunn from prosecuting Plaintiff. (Doc. # 36 at 19-20). The Court granted Defendant Glenn N. Wagner's motion to dismiss as to Plaintiff's § 1983 claim for Monell supervisory liability, Plaintiff's §§ 1985 and 1986 claims, and Plaintiff's claims for injunctive relief and otherwise denied the motion. Id. The Court granted Defendant the United States of America's motion to dismiss Plaintiff's §§ 1985 and 1986 claims.

On May 14, 2010, Defendant Jose Centano moved to dismiss the Complaint. (Doc. # 37). On May 25, 2010, Defendant S.D. Adams moved to dismiss the Complaint. (Doc. # 41). On June 18, 2010, Defendant Glenn N. Wagner moved to dismiss the Complaint's claims against him in his federal capacity. (Doc. # 54).


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 wrongfully 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 Defendant Terwilliger, an NCIS agent, "personally disapproved of Mrs. Sommer's behavior, later referring to her as a 'party girl.'" Id. 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 Defendant Ridley, also an NCIS agent "disregarded the medical opinions of two highly respected pathologists, the other medical professionals they had consulted with, and a body of medical literature in forming his own unsupported 'medical' opinion that 'twenty-three year old young men don't just die.'" Id. Plaintiff alleges that "Ridley thought the investigation just 'needed additional work' and that eventually [n]aval investigators would find something to implicate her." Id.

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. Defendant Centano was the lab director for AFIP's Environmental Division and oversaw all work performed at the lab. Id. Defendant 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 Centano "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, an Inductively Coupled Plasma Mass Spectrometer, 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 Centano, who conducted the test. Id. at ¶ 36. Plaintiff alleges Wagner emailed Centano 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 Centano replied that he was "surprised by the high arsenic levels." Id. Plaintiff alleges Centano further stated he "thought the tissue samples were contaminated during collection" and "I don't have a good interpretation of these results." Id. Plaintiff alleges that "[d]espite the concern expressed by independent toxicologists and his own doubts about the validity of the results, [] Centeno. . . agreed to approve and adopt the results and to opine, without proper basis, that Todd Sommer had died from massive arsenic poisoning." Id. at ¶ 37.

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 and S.D. Adams, 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 Defendants instead "sealed them back up in the box and left them buried in a closet until Mrs. Sommer had been arrested, convicted, and spent almost two and a half years in jail for a murder that never happened." Id. at ¶ 42.

Plaintiff alleges naval investigators interviewed Mrs. Sommer in Florida on November 29, 2005. Id. at ¶ 44. Plaintiff alleges she agreed to allow the interview to be tape recorded. Id. Plaintiff alleges that according to naval investigators, the tape recorder either malfunctioned, or one of them forgot to press the record button. Id. at ¶ 45. Plaintiff alleges the naval investigators therefore made their report of the interview based on their recollections of Mrs. Sommer's statements. Id. Plaintiff alleges the naval investigators' report "played a key role in Defendants investigation" and was used to establish probable cause to arrest her. Id. at ¶ 46.

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 August 31, 2007, Adams prepared a 'Special Attention' memorandum to 'All whom it may concern' and attached it to the box containing the tissue samples [from Todd Sommer's autopsy.] The subject line read in bold capital letters 'RETENTION OF AUTOPSY MATERIALS IN THE CASE OF SERGEANT TODD SOMMER, USMC, A02-13.' In the memorandum, Adams acknowledged both his and the District Attorney's prior knowledge of the tissues' importance and their obvious relevance to Plaintiff's pending criminal case. Notwithstanding this acknowledgment, neither Adams, Dumanis, nor Gunn disclosed the tissues['] existence to anyone [acting] on behalf of Plaintiff.

Id. at ¶ 55.

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. Plaintiff alleges on November 30, 2007, her conviction was overturned and she was granted a new trial. Id. at 52. 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. Plaintiff alleges "[t]he Defendants, and each of them, knew or had reason to know that Mrs. Sommer would be deprived of her constitutional rights . . . if they utilized inculpatory evidence that was corrupt, false, and fabricated to arrest and convict Mrs. Sommer for the death of her husband." Id. at ¶ 61. Plaintiff alleges "Defendants and each of them, acted recklessly and with gross negligence" and "colluded during their investigation to use evidence that they knew or should have known was false . . . ." Id.

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 her constitutional rights and of ยงยง 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 ...

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