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Stephen Tillotson v. Bonnie Dumanis

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 28, 2012

STEPHEN TILLOTSON,
PLAINTIFF,
v.
BONNIE DUMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE COUNTY OF SAN DIEGO; COUNTY OF SAN DIEGO, A MUNICIPAL CORPORATION, DEFENDANTS.

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

ORDER

The matters before the Court are the Motion for Summary Judgment filed by Defendants Bonnie Dumanis and the County of San Diego (ECF No. 31) and the Motion for Summary Judgment filed by Plaintiff Stephen Tillotson (ECF No. 32).

I. Background

On June 25, 2010, Plaintiff Stephen Tillotson filed a Complaint (ECF No. 1) and on August 9, 2010, Plaintiff filed a First Amended Complaint pursuant to 42 U.S.C § 1983. (ECF No. 10). The First Amended Complaint alleges that Defendants violated Plaintiff's Constitutional right to procedural and substantive due process*fn1 by placing Plaintiff on the San Diego County Brady*fn2 Index and seeks injunctive relief and damages.

On August 23, 2010, Defendants filed a Motion to Dismiss. (ECF No. 13). On November 8, 2010, this Court granted in part the Motion to Dismiss and dismissed Plaintiff's substantive due process claim and request for damages. (ECF No. 16). On December 15, 2010, Defendants filed an Answer. (ECF No. 17).

On October 27, 2011, Defendants filed a Motion for Summary Judgment. (ECF No. 31). Plaintiff filed an Opposition. (ECF No. 36). Defendants filed a Reply. (ECF No. 38). On November 14, 2011, Plaintiff filed a Motion for Summary Judgment. (ECF No. 32).

Defendants filed an Opposition. (ECF No. 37). Plaintiff filed a Reply. (ECF No. 39).

II. Undisputed Material Facts

In 1998, Plaintiff was employed as a law enforcement officer by the San Diego County Sheriff's Department. (Tillotson Decl., ECF No. 32-2 at 108). Plaintiff's supervisor required Plaintiff to participate in periodic firearm qualification shooting exercises. (Tillotson Depo., ECF No. 31-5 at 21). In June 1998, Plaintiff told his supervisor that he attended a qualification shoot that he did not actually attend. Id. at 20. Plaintiff gave his supervisor a certification card from a prior shooting exercise as documentation that he had attended the most recent qualification shoot. Id. at 22. Within the next 24 to 48 hours, Plaintiff told his supervisor that he had "made a big mistake" and had "lied to him about [attending the qualification shoot] and [that Plaintiff] felt bad about it." Id. In December 1998, Plaintiff was fired for the incident of dishonesty to his supervisor and presenting the prior shooting certification card as documentation that he had attended the most recent qualification shoot. Id. at 25.

In June 2000, Plaintiff was hired by the Sycuan Tribal Police Department after fully disclosing the prior incident of dishonesty. (Tillotson Decl., ECF No. 32-2 at 108).

In the fall of 2008, Plaintiff applied to work as a Volunteer Reserve Police Officer for the Coronado Police Department. Id. at 109. Plaintiff disclosed the prior incident of dishonesty. Id. The City of Coronado Police Department contacted the San Diego District Attorney's Office to review Plaintiff's prior incident of dishonesty and determine whether it required that Plaintiff be included on the Brady Index. Id.

Deputy District Attorney David Williams is the Brady Index coordinator for the San Diego District Attorney's Office. (ECF No. 31-3 at 1). Williams states that the San Diego District Attorney's Office maintains a Brady Index "so that [the San Diego County District Attorney's Office] can notify prosecutors when there is information about an officer that should be reviewed for potential discovery when the officer is a witness on a prosecution case." (Williams Depo., ECF No. 32-1 at 39-40). In Brady, the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court held that the prosecution has the duty to turn over material evidence favorable to the accused, even when the accused has not asked for such evidence. Agurs, 427 U.S. at 106. In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court held that a prosecutor also has a duty to disclose information that a criminal defendant may use to impeach a government witness. Bagley, 473 U.S. at 676. In Giglio v. United States, 405 U.S. 150 (1971), the Supreme Court held that, whether nondisclosure of Brady information is a result of negligence or is intentional, it is the responsibility of the prosecutor to ensure that there is communication of all relevant information on each case. Giglio, 405 U.S. at 154-55.

The San Diego County District Attorney's Office maintains three documents regarding its Brady policy including: the Brady File Review Protocol, the San Diego County District Attorney Brady Index FAQs, and the Legal Policies Guide. (Ex. to Williams Depo., ECF No. 31-5 at 78-83; ECF No. 32-1 at 155-157; Ex. to Gaspard Decl., ECF No. 32-2 at 2-4). In an answer to an interrogatory which asked whether the San Diego County Brady documents articulate a standard for when law enforcement officers should be placed on the San Diego Count Brady Index, Defendant Dumanis responded, "No. The factors to be considered for inclusion in the San Diego District Attorney's Brady Index are articulated in Brady v. Maryland and its progeny." (Dumanis Interrogatories, ECF No. 32-1 at 30-31).

The San Diego District Attorney has delegated the authority to make decisions regarding whether someone should be placed on the Brady Index to a committee of senior deputy district attorneys. (Williams Depo., ECF No. 31-5 at 62). A member of the Brady committee acts as a "gatekeeper" which is a "specific term of art [used by Defendant] for a member of the Brady committee who acts as the gatekeeper of information from all other sources." (Williams Depo. ECF No. 32-1 at 139).

Plaintiff spoke with the Brady gatekeeper assigned to his case who asked Plaintiff to submit a statement. (Tillotson Depo., ECF No. 31-5 at 30). On September 9, 2008, Plaintiff submitted a voluntary statement to the Brady committee regarding why he should not be placed on the Brady Index. Id. at 30, 86-99.

On October 29, 2008, Tillotson was placed on the Brady Index maintained by the San Diego District Attorney's Office. (ECF No. 31-5 at 134). On that same day, the San Diego District Attorney's Office sent Tillotson a letter explaining that he was being placed on the Brady Index based on the prior incident of dishonesty stating: "Stephen Tillotson was fired from the San Diego Sheriff's Department on 12/18/98 for Dishonesty." (ECF No. 134). The letter stated that "[a]additional information concerning this material is welcomed from the officer or agency." Id. The "Brady Index Frequently Asked Questions" also states that "further information and input from the officer or agency is welcomed. Additional material or information received from the officer or agency will be reviewed by the Committee to determine if the screened material should be removed from the Brady Index, or that the additional submitted material should be included in the Brady Index for review by DDAs in the future along with the other Brady Index material." (ECF No. 31-5 at 139). The document also states that "[i]n the event additional information from the officer or other sources reviewed by the Brady Committee results in the determination by the Brady Committee that the original basis of Index inclusion no longer applies, the officer may be removed from the Index." Id. at 141-42.

In November 2008, after being notified of his inclusion on the San Diego County's Brady Index, the Sycuan Tribal Police Department terminated Plaintiff's employment.

(Tillotson Decl., ECF No. 32-2 at 109). The Sycuan Tribal Police Department told Plaintiff that his placement on the Brady Index was the reason for his termination. Id.

After being notified of his inclusion on the Brady Index, the Coronado Police Department denied Plaintiff's application to work as a Volunteer Reserve Police Officer. Id. The Police Chief for the Coronado Police Department told Plaintiff that he was no longer being considered for the position because of his placement on the Brady Index. Id.

After Plaintiff was placed on the San Diego District Attorney's Brady Index, Plaintiff applied for employment as a police office the City of Oceanside Police Department, the City of San Diego Police Department and the Riverside County Sheriff's Department. (Tillitson Depo., ECF No. 31-5 at 5-6). Plaintiff did not receive an offer of employment. Id. Plaintiff was not told why he did not receive an offer of employment from the Riverside County Sheriff's Department. Id. at 14. Plaintiff was told by an employee at the San Diego Police Department that Plaintiff's inclusion on the Brady Index "was a factor" for his denial of employment. Id. at 13. Plaintiff was told that his inclusion on the Brady Index was the reason he was not offered employment by the City of Oceanside Police Department. Id. at 7-8.

The San Diego County District Attorney's Brady Index contains the names of 6 to 10 individuals who are still employed as police officers. (Williams Depo., ECF No. 31-5 at 74).

III. Contentions of the Parties

Plaintiff contends that Defendant violated his liberty interest in pursuing his chosen profession because his placement on the Brady Index prevents him from pursuing a career as a police officer. Plaintiff contends that no law enforcement agency will hire him. Plaintiff contends that he was denied procedural due process protections on the grounds that there is no single comprehensive Brady policy for San Diego. Plaintiff contends that the informal Brady procedures "arbitrarily reject the materiality standard of Brady." (ECF No. 32-2 at 11). Plaintiff also contends that he could not have pursued his claim in state court because he is not appealing the decision of an administrative agency.

Defendants contend that there is no liberty interest at stake in this case because Plaintiff has not been permanently barred from public employment. (ECF No. 31 at 7). Defendants contend that placement on San Diego County's Brady Index does not result in a complete prohibition of Plaintiff's right to pursue his chosen profession of becoming a police officer in other counties within California or in other states. Defendants contend that even if the Court finds that Plaintiff had a liberty interest at stake in this case, Plaintiff was provided adequate procedural protections on the grounds that: (1) Plaintiff received notice that the committee was considering whether he should be placed on the Brady Index; (2) Plaintiff knew what conduct made him a potential candidate for the Brady Index; (3) Plaintiff submitted written materials to the Brady committee; (4) there was no need for an oral hearing because there were no disputed issues of fact; (5) Plaintiff was provided a written explanation for the committee's decision to place him on the Brady Index; and (6) Plaintiff was informed that he could submit additional information to the committee which would be reviewed to determine if he should be removed from the Brady Index. Defendants contend that there are adequate state remedies available to Plaintiff because Plaintiff could have filed a complaint in state court alleging a violation of the due process clause of the California Constitution. (ECF No. 31 at 6; 38 at 3).

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c).

The moving party has the initial burden of demonstrating that summary judgment is proper. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). The burden then shifts to the opposing party to provide admissible evidence beyond the pleadings to show that summary judgment is not appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

To avoid summary judgment, the non-movant must designate which specific facts show that there is a genuine issue for trial. See Anderson, 477 U.S. at 256; Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is thus determined by the substantive law governing the claim or defense. See Anderson, 477 U.S. at 252; Celotex, 477 U.S. at 322; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

IV. Discussion

"A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest*fn3 , and (2) a denial of adequate procedural protections." Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 982 (9th Cir. 1998).

A. Liberty Interest

"[T]he right to ... follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment ...." Greene v. McElroy, 360 U.S. 474, 492 (1959). The liberty component of the Fourteenth Amendment's Due Process Clause may be violated by "a complete prohibition of the right to engage in a [professional] calling." Conn v. Gabbert, 526 U.S. 286, 291-92 (1999); see also Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003).

The Brady Index maintained by the San Diego County District Attorney's Office enables prosecutors to be notified of "information about an officer that should be reviewed for potential discovery when the officer is a witness on a prosecution case." (Williams Depo., ECF No. 32-1 at 39-40). "The factors to be considered for [an officer's] inclusion in the San Diego District Attorney's Brady Index are articulated in Brady v. Maryland and its progeny." (Dumanis Interrogatories, ECF No. 32-1 at 30-31).

Plaintiff has submitted evidence that he was not hired bylaw enforcement agencies and that he was told that he was not hired based on his inclusion on the Brady Index. However, Plaintiff has failed to submit any evidence that law enforcement organizations are completely prohibited from hiring an individual who is listed on the Brady Index. The evidence shows that inclusion on the San Diego County District Attorney's Brady Index is not an absolute bar to employment as a police officer in San Diego County. The evidence shows that the Brady Index contains the names of 6 to 10 individuals who are still employed as police officers despite their placement on the Brady Index. (Williams Depo., ECF No. 31-5 at 74). Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has shown that inclusion on the San Diego District Attorney's Brady Index may be considered a negative factor for law enforcement employment. Plaintiff has failed to show that inclusion on a District Attorney's Brady Index is "a complete prohibition of the right to engage in a [professional] calling." Conn, 526 U.S. at 291-92.

The Court concludes that Plaintiff has failed to demonstrate the existence of an issue of material fact with respect to his claim of deprivation of a constitutionally protected liberty interest. See Celotex, 477 U.S. at 325. Accordingly, Defendants are entitled to summary judgment on Plaintiff's claim for violation of procedural due process.

B. Adequate Procedural Protections

"A threshold requirement to ... procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution." Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996) (quoting Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994)). "[T]he requirements of due process are 'flexible and cal[l] for such procedural protections as the particular situation demands[]'" Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see also Mathews v. Eldridge, 424 U.S. 319, 335 (1976).*fn4 Courts generally consider the following factors to determine procedural due process:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Although Plaintiff has failed to meet the threshold requirement of showing of a liberty interest protected by the Constitution, the Court will consider whether he was afforded adequate procedural protections. In this case, the private interest that will be affected by the official action is Plaintiff's placement on the Brady Index and its affect on his potential employment with a law enforcement agency. The principles of Brady v. Maryland and its progeny guides the District Attorney's Office's decision regarding whether any particular individual should be listed on the Brady Index. The evidence shows that prior to the Brady committee's review of Plaintiff's case, Plaintiff was permitted an opportunity to submit a voluntary statement regarding why he should not be placed on the Brady Index. (Tillotson Depo., ECF No. 31-5 at 30, 86-99). The evidence shows that the Brady committee sent Plaintiff a written explanation of their decision. The evidence shows that Plaintiff remains able to submit additional material or information regarding his placement on the Brady Index which would "be reviewed by the Committee to determine if the screened material should be removed from the Brady Index." (ECF No. 31-5 at 139). The risk of an erroneous deprivation of a private interest through the procedures used is low. The Government's interest in maintaining the Brady Index is strong because disclosure of Brady information is the responsibility of the prosecutor who must ensure that there is communication of all relevant information on each case. See Giglio, 405 U.S. at 154-55.

Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff was afforded adequate procedural protections on the grounds that (1) the principles of Brady v. Maryland and its progeny guides the District Attorney's Office's decision regarding whether any particular individual should be listed on the Brady Index; (2) an individual is permitted an opportunity to submit a voluntary statement regarding why he should not be placed on the Brady Index; (3) an individual is provided a written explanation of the Brady committee's decision; and an individual is permitted to submit additional material or information regarding his placement on the Brady Index which is reviewed to determine if the individual should be removed from the Brady Index. See Wilkinson, 545 U.S. at 229 (balancing the factors to determine whether the requirements of procedural due process were met and finding as a matter of law that they were).

The Court concludes that Plaintiff has failed to demonstrate the existence of an issue of material fact with respect to his claim of denial of adequate procedural protections. See Celotex, 477 U.S. at 325. Accordingly, Defendants are entitled to summary judgment on Plaintiff's claim for violation of procedural due process.

V. Conclusion

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendants Bonnie Dumanis and the County of San Diego (ECF No. 31) is GRANTED and the Motion for Summary Judgment filed by Plaintiff Stephen Tillotson (ECF No. 32) is DENIED.

United States District Judge WILLIAM Q. HAYES


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