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Paul Bashkin v. San Diego County; Howard Kluge

January 27, 2011

PAUL BASHKIN,
PLAINTIFF,
v.
SAN DIEGO COUNTY; HOWARD KLUGE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BRET GARRETT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



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

ORDER

The matter before the Court is the Motion to Dismiss filed by Defendants San Diego County, Howard Kluge and Bret Garrett. (ECF No.76).

I. Background

On August 8, 2008, Plaintiff Paul Bashkin, proceeding pro se, filed a Complaint alleging claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. (ECF No. 1).

On May 20, 2010, the Court issued an Order granting in part and denying in part Defendants' Motion for Summary Judgment. (ECF No.53).

On October 22, 2010, Plaintiff filed a First Amended Complaint. (ECF No. 75).

A. Allegations of the First Amended Complaint

On August 8, 2006, an employee of Barona Casino & Resort ("Barona") placed a call to the San Diego County Sheriff's Department, requesting an investigation of Plaintiff pursuant to section 5150 of the California Welfare and Institutions Code.*fn1 Defendants Kluge and Garrett, deputies with the San Diego County Sheriff's Department, responded to the call. "After questioning Plaintiff, Deputy Kluge decided not to have Plaintiff involuntarily committed on a § 5150 hold. Plaintiff was not arrested and was informed he was free to go." (ECF No. 75 ¶ 8). "Plaintiff then informed Barona that although he did not intend to gamble there anymore, he decided not to 'self-ban' from the casino in order to preserve the substantial player's club benefits he had already earned (e.g., free daily buffets, bonus cash, etc.)." Id.¶

9. "During subsequent negotiations between Plaintiff and Barona, Deputy Kluge interfered with Plaintiff's attempts to protect and preserve his contractual player's club rights. Without provocation, Deputy Kluge began verbally harassing Plaintiff and shouting at him, informing Plaintiff, among others, that he had 'no rights' and that Barona could do whatever it wanted to him." Id. "Deputy Kluge then forced Plaintiff from the Barona interrogation room to an adjacent parking lot where the deputy's car was parked by pinning Plaintiff's wrists behind his back, which was excruciatingly painful and left bruises." Id. ¶ 10. Kluge then handcuffed Plaintiff, searched Plaintiff's pockets, and "ordered Plaintiff to walk around to the casino entrance where the buses departed...." Id. ¶ 12. "Deputy Kluge then removed the handcuffs while threatening to charge Plaintiff with criminal trespassing if Plaintiff did not leave on the next bus. Scared to death, Plaintiff did exactly as he was told." Id. ¶ 13. "Deputy Garrett was present during this ordeal, yet did not attempt to stop Deputy Kluge from committing the acts complained about herein...." Id. ¶ 14.

The First Amended Complaint alleges two causes of action: (1) deprivation of rights pursuant to 42 U.S.C. § 1983 against all Defendants, and (2) conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985 against Defendants Kluge and Garrett.

The second cause of action, brought pursuant to § 1985, alleges: Barona did not want to uphold its part of the contract it had entered into with Plaintiff--which required it to provide Plaintiff with those player's club benefits he had already earned--if Plaintiff was not going to continue gambling there. Certain Barona employees ... informed Deputies Kluge and Garrett that they were going to involuntarily ban Plaintiff ... under the pretext of Plaintiff's alleged 'misconduct,' in order to cheat Plaintiff out of the benefits he had already bargained for and earned. Those Barona employees then entered into an agreement or understanding with Deputy Kluge to have him terrorize Plaintiff and forcibly remove Plaintiff from the premises in order to coerce Plaintiff to give up his player's club rights and to make it appear as if he had engaged in such unidentified misconduct in order to warrant his removal from the casino.... Barona made audio and videotapes of this incident which corroborated all of Plaintiff's allegations.... Because of the incriminating and incendiary nature of the audio and videotapes, defendants Kluge and Garrett, through their agreement(s) with Barona, conspired to obstruct justice and have those tapes destroyed shortly after the incident....

The conspiracy was racially motivated. Its purpose was to prevent Bashkin and other non-native American patrons of Barona Casino, through force, violence and intimidation, from seeking and enforcing their right to the equal protection of the laws, and to injure them and their property for attempting to enforce their right to equal protection of the laws. The conspirators thought they were immune from liability due to their status as a sovereign nation.

Id. ¶¶ 28-31.

B. Motion to ...


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