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Marcario Belen Dagdagan v. City of Vallejo; Vallejo Officer John Boyd (Id#589); Vallejo

November 18, 2011


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Plaintiff seeks partial summary judgment on his Fourth Amendment unlawful search claim ("Fourth Amendment claim") alleged against Defendant Melville, which is based on allegations that Melville prepared affidavits for an unlawful search warrant and conducted an unlawful search. Melville cross-moves for summary judgment on this claim.

Further, Defendants seek partial summary judgment on Plaintiff's Fourteenth Amendment substantive due process claim ("substantive due process claim") alleged against Defendants Wentz and Boyd, arguing "there is no evidence of deliberate indifference to [Plaintiff's] medical needs." (Defs.' Mot. 2:21.) Plaintiff failed to respond to this portion of Defendants' motion in his opposition brief, and stated at the October 24, 2011 hearing on the motions that he abandons this claim. Therefore, Plaintiff's substantive due process claim against Wentz and Boyd is dismissed.

Defendants also seek summary judgment on Plaintiff's Monell claims against the City of Vallejo (the "City"), arguing "there is no evidence of unconstitutional policies, nor that [the City] engaged in a custom or practice of condoning or ratifying police use of unlawful entries/arrests/excessive force against citizens to the degree of deliberate indifference required to impute liability for constitutional violations." Id. 2:22-26. Plaintiff opposes the City's motion on his Monell claims, arguing he can show that "policymakers . . . ratified the illegal conduct . . . [and] plaintiff's injuries were due to [a] municipal custom and practice of inadequate training and supervision." (Pl.'s Opp'n 2:7-10.) Alternatively, Plaintiff requests a continuance in order to obtain an expert report, which he argues "will provide further evidence of the City's deliberate indifference to the illegal conduct of its employees." Id. 16:25-28.


Plaintiff's continuance request is governed by Federal Rule of Civil Procedure ("Rule") 56(d), which prescribes: "If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Therefore, to obtain a continuance under Rule 56(d), Plaintiff "must show (1) that [he has] set forth in affidavit form the specific facts that [he] hope[s] to elicit from further discovery,

(2) that the facts sought exist, and (3) that these sought-after facts are 'essential' to resist the summary judgment motion." State of Cal., on Behalf of Cal. Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Moreover, Plaintiff "must make clear what information is sought and how it would preclude summary judgment." Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Here, Plaintiff has neither identified the specific facts that he hopes to elicit from the referenced expert report, nor made clear how such information would preclude summary judgment. Therefore, Plaintiff's continuance motion under Rule 56(d) is denied.


A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

When deciding cross-motions for summary judgment, each motion is evaluated on its own merits, "taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 592 (6th Cir. 2001); Bryan v. McPherson, 608 F.3d 614, 619 (9th Cir. 2010) (stating all reasonable inferences that can be drawn from the evidence "must be drawn in favor of the non-moving party").

When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims, [the defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted). If the moving party satisfies its initial burden, "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). The "non-moving plaintiff cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks omitted).

Further, Local Rule 260(b) requires: Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006).

Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.

Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks omitted).


On June 2, 2007, "Vallejo Police Officers Wentz and Boyd were dispatched to respond to [a] call for service" placed by Gina Kearney, who had reported that Plaintiff assaulted her. (Defs.' Statement of Undisputed Material Facts ("SUMF") ¶¶ 2-3.) Subsequently, Wentz and Boyd entered Plaintiff's residence, where they found Plaintiff "in the bedroom lying on a bed." (Pl.'s SUMF ¶ 1.) Wentz and Boyd engaged in a verbal exchange with Plaintiff, during which Plaintiff was placed under arrest and tased twice. Id. ¶¶ 2-7. "After handcuffing [P]laintiff, Officers Wentz and Boyd brought [P]laintiff to the living room of the apartment." Id. ¶ 8. When ...

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