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Berry Lynn Adams v. Daniel L. Kraft

October 25, 2011

BERRY LYNN ADAMS,
PLAINTIFF,
v.
DANIEL L. KRAFT, PHILLIP HAUCK, KIRK LINGENFELTER, K. P. BEST, J. I. STONE,
CHIP BOCKMAN, R. CALLISON, SCOTT SIPES,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Berry Lynn Adams ("Adams") brings this action under 42 U.S.C. §§ 1983 and 1988 against Defendants Daniel L. Kraft ("Kraft"), Phillip Hauck ("Hauck"), Kirk Lingenfelter ("Lingenfelter"), and K.P. Best ("Best"), (collectively "Defendants"), all of whom are California 21 State Park Rangers ("Park Rangers"), alleging unlawful search and arrest, excessive force, and 22 retaliation, in violation of his rights under the First and Fourth Amendments of the U.S. Constitution and Article I, §§ 2 and 3 of the California Constitution.*fn1 Before the Court is Defendants' Motion for Summary Judgment. The Court held a hearing on October 20, 2011.

Having considered the parties' submission and arguments, the Court GRANTS in part and 2 DENIES in part Defendants' motion for summary judgment. 3

Defendants' Motion to Dismiss. See ECF No. 126. 8 9 his constitutional rights while acting in their individual capacities and under the color of state law.

when the Rangers replaced the Santa Cruz Sheriff's Office in patrolling Seacliff State Park Beach and Pier ("Seacliff"). Id. at ¶ 8; Adams Decl. ¶¶ 4-5. Plaintiff, a self-proclaimed "expert" surf 13 fisher with over 25 years of experience fishing at Seacliff, claims that he never had any problems 14 with the Sheriff's Office. SAC ¶ 7; Adams Decl. ¶¶3-4. 15

Plaintiff's first claimed interaction with the Defendants occurred on February 15, 2008. SAC ¶ 10; 18

I.BACKGROUND

A.Facts

The following relevant facts are adopted, in large part, from the Court's July 29, 2011 Order Denying Plaintiff's Motion for Leave to Amend, and Granting in Part and Denying in Part 7 Plaintiff alleges that Defendants, all of whom are California State Park Rangers, violated SAC ¶ 5. Plaintiff alleges that his problems with the California State Park Rangers began in 1985,

Initial Interactions with Park Rangers

Plaintiff's claims are based on a series of alleged encounters with various Park Rangers.

Adams Decl. ¶ 6. Defendant Best issued a ticket to Plaintiff for unlawful possession of alcohol 19 while he was parked in a public parking lot. SAC ¶ 10; Adams Decl. ¶ 6; Evans Decl. ¶¶ 2-4; 20

Dickie Decl. ¶¶ 2-4; Dunlop Decl. ¶ 2. Plaintiff was in fact only drinking root beer and asked Best 21 to read the label on the bottle or to sniff the contents of the bottle, both of which Best refused to do. 22

Adams Decl. ¶ 6. The following day, Plaintiff again encountered Best and told him that he 23 intended to contest the citation and had several witnesses who could corroborate his version of 24 events. Id. ¶ 8. Best agreed to rescind the citation from the previous day, but as he did so, he told

Plaintiff that never before in his career had he rescinded a citation, that he was not happy about 26 having to do so, and that he "would never forgive or forget [Adams]." Id.; SAC ¶ 12. Plaintiff 27 believes that Best felt humiliated by having to rescind his February 15, 2008 citation, and that this event triggered a series of retaliatory acts by Best and several of his subordinates designed to 2 punish Plaintiff for "humiliating" Best. SAC ¶ 12; Adams Decl. ¶ 8. 3 4 revenge on behalf of Best. First, on June 15, 2008, Kraft and Callison "walked into Monterey 5 Decl. ¶ 10; see also Valdez Decl. ¶ 2; Nelson Decl. ¶ 2. During the search, Kraft allegedly told 7 Plaintiff describes several incidents that he believes resulted from Defendants' plan to exact Bay" in their uniforms and "demanded to search ADAM's [sic] backpack." SAC ¶ 13; Adams 6

Plaintiff, "My boss [Best] has not forgotten you." SAC ¶ 13.Second, Plaintiff states that "on 8 numerous occasions KRAFT approached ADAMS and required ADAMS to produce his water 9 bottle to KRAFT so that KRAFT could sniff the liquid contents (water) to confirm that it was not 10 alcohol." SAC ¶ 14; Adams Decl. ¶ 9.

Third, on July 8, 2008, Stone issued Plaintiff a parking citation for parking at Seacliff after

it had closed. SAC ¶ 15; Adams Decl. ¶ 11.Plaintiff does not contest the validity of the citation, 13 but instead alleges that Stone issued the citation without the usual custom of announcing that the 14 park had closed and without issuing a warning. SAC ¶ 15; Adams Decl. ¶ 11.Plaintiff further 15 alleges that Stone did not give citations to other parked vehicles and told Plaintiff that he was "one 16 of the locals who were the worst offenders and needed to be taught a lesson." SAC ¶ 15; Adams 17

Plaintiff claims that he later contacted the Rangers' supervisor, Defendant Lingenfelter, to complain about this "harassment." SAC ¶ 17; Adams Decl. ¶ 12. Plaintiff alleges that Lingenfelter 20 told him to put his complaints in writing, which Adams did. Adams Decl. ¶ 12; see Adams Decl. Ex. 1. Rather than respond to Plaintiff's complaints of harassment, however, Lingenfelter sought 22 to have the District Attorney obtain a court order prohibiting Plaintiff from being present on 23 several beaches, including Seacliff. SAC ¶ 17; Adams Decl. ¶¶ 12-14. Lingenfelter allegedly 24 wrote a July 23, 2009 letter to the District Attorney, which claimed Plaintiff was lodging baseless 25 complaints about State Park Peace Officers and consuming the officers' time, and that Plaintiff was 26 causing disturbances, which Lingenfelter believed would continue to occur. SAC ¶ 17; Adams

Decl. ¶ 11. 18

Decl. ¶ 14.Plaintiff alleges the disturbances were almost always in response to being erroneously accused, with subsequent public outcry at how the Rangers were treating him. SAC ¶ 17. The 2 District Attorney allegedly sought a stay away order, but the Superior Court refused to issue one. 3 Plaintiff believes that the Park Rangers' resolve to harass him heightened after he gave a 5 televised interview to a news channel during a June 22, 2009 rally at Seacliff opposing proposed 6 budget cuts to the State Parks System. SAC ¶ 19; see Adams Decl. ¶ 15. The rally, attended by 7 SAC ¶ 17; Adams Decl. ¶ 14. 4

1,200 people, was covered by major news media, including joint coverage by KCBA-TV, a local 8 affiliate of the Fox and CBS networks and a main source of local news in the Monterey Bay area 9 widely viewed by the public. SAC ¶ 19; Adams Decl. ¶ 15. Plaintiff told the interviewer that the State of California could save a lot of money by returning beach patrolling responsibility to the Sheriff's Office. SAC ¶ 19; Adams Decl. ¶ 15. Plaintiff believes that his interview was either viewed or reported to all the Park Rangers because one of their colleagues, Ranger Allyn Kaye, 13 was also interviewed during the same broadcast. SAC ¶ 19; Adams Decl. ¶ 15.

Also on June 22, 2009, Plaintiff crossed paths with Greg Inloes ("Inloes"), another Seacliff 15 frequenter. SAC ¶ 20; Adams Decl. ¶ 16. In his initial complaint, Plaintiff alleged he was upset 16 with Inloes because Inloes had shared information about Plaintiff's new fishing lure with the 17

Western Outdoor News, without Plaintiff's permission. Compl. ¶¶ 8-10; Adams Decl. ¶ 16. The 18 two argued, and Plaintiff threatened to sue Inloes if he did not refrain from certain conduct in 19 relation to fishing journalism. SAC¶ 20; Adams Decl. ¶ 16; Nelson Decl. ¶ 4; Rodriguez Decl. ¶ 20

Adams Decl. ¶ 16; Nelson Decl. ¶ 4; Rodriguez Decl. ¶ 2. 22

2. Plaintiff alleges that at no point did he threaten Inloes with any physical violence. SAC ¶ 20; 21 June 24, 2009 Arrest and Criminal Prosecution Inloes subsequently complained to the Park Rangers about his interaction with Adams.

SAC ¶ 21; Adams Decl. ¶ 17. According to Ranger Hauck, Inloes came into the Seacliff Ranger 25 office at about 12:30 p.m. on June 24, 2009 and reported that Adams threatened him two days 26 earlier, on June 22, 2009. Hauck Decl. ¶ 6; Kraft Decl. ¶ 14. Inloes allegedly reported that Adams 27 said the following things to Inloes in warning him not to continue writing news articles: "I will have to come fuck your crippled ass up"; "When you're in the ICU you will understand"; "I will 2 fuck you up and put you in the ICU." Hauck Decl. ¶ 6. Hauck states that he promptly looked up 3 the elements of California Penal Code § 422 and began asking Inloes follow-up questions to 4 determine whether probable cause to arrest Adams existed. Inloes indicated to Hauck that he 5 thought Adams would follow through on his threats, that Adams was not capable of controlling his 6 physical rage, and that he had seen Adams attack other people on the pier after first making violent 7 threats. Id. ¶ 7. Inloes "also noted a past instance of a knife fight on the pier when things got out 8 of hand with people on the pier," without specifying that this knife fight involved Adams. Id. ¶ 8. 9

Hauck alleges that after speaking with Inloes, he conferred with Kraft, his field-training 10 officer, about whether there was sufficient probable cause under § 422, during which Kraft noted that his own past involvement with Inloes led him to believe Inloes was a credible witness. Id. ¶ 9;

Kraft Decl. ¶ 14. Kraft then called the Santa Cruz County District Attorney's Office to obtain a 13 second opinion, and the District Attorney's Office confirmed that, based on the facts as reported by 14 Lingenfelter Decl. ¶ 11. 16 17 they had any past experience with Adams threatening or verbally harassing people on the pier. 18

Hauck Decl. ¶¶ 10-11. Stone reported an incident on May 12, 2009, in which there was a 911 call 19 reporting a suspect, whose description matched Adams, on the pier yelling obscenities and 20 threatening people. Adams, when questioned by Stone, was "uncooperative, confrontational, and 21 yelled at Stone." Hauck Decl. ¶ 10. Sipes reported that on June 1, 2009, a park patron reported 22 that a suspect on the pier whose description matched Adams was yelling obscenities at him. Again, 23 when approached by Ranger Sipes, Adams was uncooperative, confrontational, and yelled at Sipes. 24

Hauck then called Inloes at 2:04 p.m. Id. ¶ 13. According to Hauck, Inloes provided 26 further substantial details about the June 22, 2009 altercation that were consistent with his earlier 27 account of events and led Hauck to believe Inloes was credible. Id. Both Hauck and Kraft 28 Inloes, there was probable cause to arrest under § 422. Hauck Decl. ¶ 9; Kraft Dec. ¶¶ 16-17; 15 Hauck alleges that he thereafter spoke with both Rangers Stone and Sipes about whether Id.¶ 11. 25

determined that there was probable cause to arrest Adams for criminal threats under California 2 Penal Code § 422. Hauck Decl. ¶ 14; Kraft Decl. ¶ 19. 3 4 demanded by Sea Cliff State park Rangers to write a letter of the events of 6-22-09," which he did. 5

Adams Decl. ¶ 17; SAC ¶ 21. That letter was a 9-page handwritten statement "that was at times 6 rambling and at times incoherent and contained several exculpatory statements about [Adams]." 7

Best, and Lingenfelter. SAC ¶ 21. 9

In a letter later written to Plaintiff's former attorney, Inloes explained that he "was Adams Decl. ¶ 17; SAC § 21. Plaintiff believes that the officers who made this request were Kraft, 8 According to Plaintiff, on June 24, 2009, Defendants Kraft, Hauck, Stone, Sipes and Bockman arrived at the pier where Plaintiff was sitting and fishing. SAC ¶ 22; Adams Decl. ¶ 18. 11

12 to whether he was under arrest, and if so, for what. Adams Decl. ¶ 18. Hauck finally announced 13 that Plaintiff was under arrest, but still refused to tell Plaintiff why. Plaintiff stood in response to 14 Huerta, first handing the items to Ranger Sipes. Id. Plaintiff then attempted to put down a bag of 16 potato chips, but as he did so, Kraft kicked Plaintiff's right hand and wrist. Id.; SAC ¶ 23; Evans 17 Decl. ¶ 7. Plaintiff then turned around with his back to Hauck and Kraft and offered his arms to be 18 handcuffed. Adams Decl. ¶ 18. At this point, Kraft allegedly grabbed Plaintiff by the left arm and 19 forced him into a pain compliance hold, which was very painful for Plaintiff due to his severe 20 osteo-arthritis. SAC ¶ 24; Adams Decl.¶ 19; see Arias Decl. ¶¶ 2-3. As Kraft held Plaintiff in a 21 pain compliance hold, Hauck applied the handcuff to his right hand and yanked his right arm, 22 causing more pain. Adams Decl. ¶ 19. Kraft finally lifted the pain compliance hold, and the 23 officers applied the handcuffs to both wrists. SAC ¶ 24; Adams Decl. 20. According to Plaintiff, 24 none of the other Rangers intervened during the course of these events. SAC ¶ 24. 25

26 were numb. Adams Decl. ¶ 21. He believed that the numbness would subside. When it did, only 27 then did he realize that his right wrist was injured where Kraft had kicked him, and he sought 28

Hauck ordered Plain to answer Plaintiff's queries as tiff to stand up and follow him. Hauck refused

Hauck's command, gathering his cell phone, wallet, and keys to give to a fellow fisherman, Angel 15 When Plaintiff arrived at the jail, and his handcuffed were removed, his hands and wrists treatment from "Doctors on Duty." Adams Decl. ¶ 21. He continues to experience pain and 2 numbness in his right wrist from time to time. Id.

Lingenfelter and Kraft filed reports with the District Attorney, seeking prosecution of Adams for misdemeanor charges of violating California Penal Code § 422 (communicating a 5 threat) and § 148 (resisting arrest). Adams Decl. ¶ 22. The District Attorney brought those charges 6 against Adams in Santa Cruz Superior Court. See Wells Decl. Ex. 1; Adams Decl. ¶ 23. Neither 7 Lingenfelter nor Kraft nor any other Park Ranger forwarded or disclosed the existence of Inloes' 9-8 page written account of the June 22, 2009 events to the District Attorney. Id.; SAC ¶ 25. The 9 existence of Inloes's complaint was only revealed inadvertently during Plaintiff's September 2009 10 criminal trial. SAC ¶ 25; Adams Decl. ¶ 24. Judge Almquist, presiding over the proceeding,

dismissed all charges, finding that "if you read Inloes' letter, he wasn't afraid that anything was going to happen immediately or imminently. He waited 48 hours to even make a complaint about 13 this to law enforcement." SAC ¶¶ 21, 25-26. Judge Almquist found it "extremely disturbing that 14 this letter wasn't turned over, specifically since it was given to the officer who was essentially in 15 charge of Officer Hauck and made the decision to treat this as a felony arrest rather than treat it the 16 way it should have been treated." Wells Decl. Ex. 1, 216:19-23. Finally, Judge Almquist 17 concluded that probable cause for the § 422 and § 148 arrest was lacking and that the use of force 18 was excessive. Id. at 216-19, 224-25. Plaintiff was acquitted on "both charges pursuant to a 19 California Penal Code § 1118.1 motion that the prosecution's evidence failed to establish a prima 20 facie case of guilt." SAC ¶ 26; Adams Decl. ¶ 25.

The last alleged incident occurred on July 31, 2009, while Plaintiff was fishing at Seacliff.

SAC ¶ 28. Plaintiff yelled at another fisherman who was violating "the protocol and law of 23 fishing" by crossing his line with the lines of Plaintiff and others on the pier. SAC ¶ 28; Adams Best, and Callison ejected Plaintiff from Seacliff for disturbing the peace. SAC ¶ 28; Adams Decl. 26 ¶ 26.No other fisherman was ejected, and several witnesses, apparently friends of Plaintiff, told Decl. ¶ 26. Plaintiff alleges that after expressing his complaint to a Lifeguard, Defendants Kraft, the Rangers of Plaintiff's innocence. SAC ¶ 28; Adams Decl. ¶ 26; Evans Decl. ¶ 6; Dickie Decl. ¶ 2 5; Dunlop Decl. ¶ 5. 3

First Amended Complaint, see ECF No. 77, which Plaintiff filed on December 6, 2010, see ECF 10 Plaintiff alleges he filed a California Government Code § 945.4 claim with the state on December 16, 2009 against all Defendants. The claim was denied on February 18, 2010. SAC ¶ 5

B.Procedural History

This action commenced on February 10, 2010, and was reassigned to the undersigned on August 2, 2010. On November 30, 2010, the Court granted Plaintiff's motion for leave to file a 9 No. 80. Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint, which the Court granted in part and denied in part on March 8, 2011. See ECF No. 96. In the March 8, 2011

Order, the Court again gave Plaintiff leave to amend certain claims, leading to Plaintiff's filing of 13 the operative Second Amended Complaint on April 7, 2011. Defendants again moved to dismiss, 14 and on July 29, 2011, the Court issued an Order Granting in Part and Denying in Part Defendants' 15 Leave to Amend. See ECF No. 126. In light of that order, only the following claims remain: 17 Defendants Kraft and Hauck;*fn2 Motion to Dismiss Plaintiff's Second Amended Complaint, and Denying Plaintiff's Motion for 16

* Plaintiff's false arrest claim under the Fourth Amendment to the U.S. Constitution, as to 18

* Plaintiff's excessive force claim under the Fourth Amendment to the U.S. Constitution, as to Defendants Kraft and Hauck; and

* Plaintiff's claim under the First Amendment to the U.S. Constitution and Article I, §§ 2 and

of the California Constitution, as to Defendants Kraft, Hauck, Best, and Lingenfelter.

See id. at 34-35; SAC ¶¶ 30-54. 2

4 inferences in the light most favorable to the nonmoving party, there are no genuine issues of 5 material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 6

"does not assess credibility or weigh the evidence, but simply determines whether there is a 8 genuine factual issue for trial." House v. Bell, 547 U.S. 518, 559-60 (2006). A fact is "material" if 9 it "might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc.,

II.LEGAL STANDARD

Summary judgment is appropriate if, viewing the evidence and drawing all reasonable Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). At the summary judgment stage, the Court 7 477 U.S. 242, 248 (1986), and a dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party, id. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 13

The moving party bears the initial burden of identifying those portions of the pleadings, 15 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex 16 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue at trial, 17 it must affirmatively demonstrate that no reasonable trier of fact could find other than for the 18 moving party, but on an issue for which the opposing party will have the burden of proof at trial, 19 the party moving for summary judgment need only point out "that there is an absence of evidence 20 to support the nonmoving party's case." Id. at 325; accord Soremekun v. Thrifty Payless, Inc., 509 21 F.3d 978, 984 (9th Cir. 2007). Once the moving party meets its initial burden, the nonmoving 22 party must set forth, by affidavit or as otherwise provided in Rule 56, "specific facts showing that 23 there is a genuine issue for trial." Anderson, 477 U.S. at 250. 24 25 Id. 14

III. EVIDENTIARY MATTERS

In ruling on a motion for summary judgment, the Court may consider only admissible 26 evidence. See Fed. R. Civ. P. 56(c); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). A 27 28 party "may object that the material cited to support or dispute a fact cannot be presented in a form 2 that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2).

Rule 7-3(c), which requires all evidentiary and procedural objections to the opposition to be 7 contained within the reply brief or memorandum, the Court will not consider Defendants' separate 8 evidentiary objections. See Civil L.R. 7-3(c); id. 7-4(b) (limiting a reply brief or memorandum to

A.Defendants' Evidentiary Objections

Defendants filed a separate Objections to Evidence Offered in Opposition to Motion for Summary Judgment. See ECF No. 144. However, because Defendants did not comply with Local 6 15 pages of text). To the extent necessary, the Court addresses Defendants' properly raised 10 objections in the analysis sections below as they relate to summary judgment on each claim.

B.Deemed Admissions

Defendants also assert that Plaintiff's failure to respond to Requests for Admissions by

Kraft, Hauck, Lingenfelter, and Best rendered such matters admitted on March 7, 2011, by 14 operation of law pursuant to Federal Rule of Civil Procedure 36(a)(3). Br. at 7; Reply at 5-7. 15

Specifically, Defendants argue that summary judgment should be granted based on Plaintiff's 16 admissions that (1) Hauck and Kraft did not violate his First or Fourth Amendment rights, or 17 falsely arrest him or use excessive force during his June 24, 2009 arrest; (2) there was probable 18 cause for his arrest, and he was combative and resisted arrest on June 24, 2009; and (3) 19

Lingenfelter and Best did not violate his First or Fourth Amendment rights and were not involved 20 in the decision to arrest Adams or in Adams' actual arrest. Br. at 7; Reply at 5-7. Rule 36(a)(3) 21 provides that 22 the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court. Fed. R. Civ. P. 36(a)(3). Plaintiff explains that his failure to timely respond to Defendants' Requests for Admissions was because they were directed to a First Amended Complaint that was dismissed with leave to file [a] matter is admitted unless, within 30 days after being served, the party to whom a Second Amended Complaint on March 8, 2011. See ECF No. 96 (Order Granting in Part and 2 Denying in Part First Amended Complaint); see also Alweiss Decl. Exs. A-D (Kraft's, Hauck's, 3 On March 21, 2011, Defendants filed a motion to compel responses and production of documents, 5 see ECF No. 98, and a motion for sanctions, see ECF No. 100. On April 21, 2011, Magistrate 6 Judge Lloyd issued an order (1) granting in part and denying in part Defendants' motion to compel, 7 and (2) denying Defendants' motion for sanctions, on grounds that Defendants were not seriously 8 prejudiced by Plaintiff's delay in serving his discovery responses. ECF No. 114. Magistrate Judge 9 Lingenfelter's, and Best's Requests for Admissions, all directed to the First Amended Complaint). 4

Lloyd's order granted Plaintiff ten days from the date of the order to answer Defendants' 10 interrogatories and produce all responsive documents. Id. at 3.

12 response to Lingenfelter's Request for Admissions on April 25, 2011, and a response to Best's 13 Request for Admissions on May 2, 2011, denying the matters Defendants assert should be deemed 14 admitted by operation of law. See Wells Decl. Exs. 2-5. In addition, Plaintiff served a response to 15 In light of Plaintiff's eventual responses to Defendants' Requests for Admissions,

Plaintiff's legitimate reason for withholding responses given dismissal of the First Amended 18 In compliance with Magistrate Judge Lloyd's ...


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