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James Lewis, et al., 1 v. City of Fresno

July 13, 2011

JAMES LEWIS, ET AL., 1 PLAINTIFF,
v.
CITY OF FRESNO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AGAINST GERALD MILLER (Doc. 73)

I. INTRODUCTION.

Gerald Miller ("Plaintiff") proceeds with this action pursuant to 42 U.S.C. 1983 and California Government Code §12900.

Defendants filed a motion for summary judgment on May 6, 2011. (Doc. 73). Plaintiff filed opposition on June 6, 2011. (Doc. 82). Defendants filed a reply on June 13, 2011. (Doc. 91).

II. FACTUAL BACKGROUND.

Plaintiff is an African American police officer employed by the Fresno Police Department ("Department").

On September 10, 2007, Plaintiff was driving his personal vehicle on Fowler Avenue near the intersection of Tulare in Fresno County while off-duty. A vehicle passed Plaintiff, and a few moments later, Officer Anthony Bustos ("Bustos") activated his lights, drove past Plaintiff's vehicle, and initiated a traffic stop of the vehicle that had passed Plaintiff. The vehicle pulled into a Seven-Eleven Parking lot, followed by Bustos. Plaintiff also drove into the Seven-Eleven parking lot and parked in front of the entrance to the store.

As Plaintiff exited his vehicle, Bustos pointed his finger at Plaintiff and yelled "you're lucky you're not getting a ticket too." Miller responded "for what?" and Bustos replied "speeding." Plaintiff started to turn toward the store and said in an angry voice "you need to get on with that." Bustos then asked Plaintiff for identification.

Plaintiff walked to the passenger side of his vehicle, opened the door, got his driver's license and police ID out of his wallet, and handed both items to Bustos. Plaintiff started to walk alongside the driver's side of his vehicle towards the store and Bustos ordered him to stop. Plaintiff started back in the store saying, "you have my IDs right there." Bustos told Plaintiff that if he went in the store he would be arrested. Bustos requested assistance and other officers arrived on scene, including Sergeant John Chandler. Plaintiff made known his objections to his detention.

On October 24, 2007, Plaintiff appeared in court with legal counsel, Franz Criego, for the traffic citation issued by Bustos. During the course of questioning Officer Bustos, Criego made a comment using the term "DWB" to which Bustos responded "your Honor, I'm now being accused of racist remarks and I probably think we ought to have the City Attorney here now." Although Plaintiff's hearing was the last hearing scheduled that day, three officers from the Department remained in the courtroom during his hearing, including Officer Stuart Riba.

On September 11, 2007, Plaintiff lodged a formal citizen's complaint regarding to Bustos' conduct during the September 10, 2007 traffic stop. An Internal Affairs investigation was conducted by Bustos' supervisor, John Chandler, who had responded to the scene. On November 7, 2007, Chandler prepared a Memorandum directed to Department Chief Jerry Dyer through Captain Greg Garner and officer Patrick Farmer identified as Personnel Complaint IA 2007-0120. Plaintiff's name was handwritten on the face of the November 2007 memorandum as an accused. The November 2007 Memorandum states a finding that Plaintiff violated professionalism standards. Plaintiff was never informed of the investigation as required by Department policy.

On October 25, 2007, the day after Plaintiff's traffic court hearing, an Internal Affairs investigation was initiated against Plaintiff contending he had engaged in misconduct at the hearing by

(a) identifying himself as an officer; (b) contending the citation was racially motivated; (c) accessing records improperly or for an improper purpose; and (d) using profanity at the hearing. The October 2007 Internal Affairs instigation was conducted by Sgt. Mindy Medina-Casto.

On September 8, 2008, Plaintiff filed a complaint with California's Department of Fair Employment and Housing ("DFEH") alleging that the City had failed to prevent race discrimination and/or retaliation with reference to the subject traffic incident and the court appearance.

In 2009, Plaintiff was involved in a collision on duty when another car ran a red light. The matter went through an Internal Affairs investigation and Plaintiff received a documented oral reprimand.

In 2010, Plaintiff was written up for insubordination by Sgt. Alvarez. Plaintiff protested that he felt Alvarez's conduct was racially motivated. No investigation of the ...


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