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Tony L. Burns v. Ofcr Kevin Barreto; Ofcr Mark Simonson of the Benicia Police Dept

June 14, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is defendants' motion for summary judgment or, in the alternative, partial summary judgment (Dkt. No. 47).*fn1 Plaintiff filed a written opposition to defendants' motion (Dkt. No. 58), which predominantly consists of a motion for relief from a final judgment, order, or proceeding filed pursuant to Federal Rule of Civil Procedure 60(b).

The court heard this matter on its May 31, 2012 law and motion calendar. Plaintiff, who is proceeding without an attorney, appeared at the hearing and represented himself. Attorney Danielle K. Lewis appeared on behalf of defendants.

The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record. For the reasons that follow, the undersigned denies plaintiff's Rule 60(b) motion as prematurely filed and recommends that defendants' motion for summary judgment be granted. Accordingly, the undersigned recommends that judgment be entered in defendants' favor and this case be closed.


The operative complaint is plaintiff's Second Amended Complaint (Dkt. No. 37), which contains very few factual allegations. However, attached to that pleading are exhibits that somewhat flesh out plaintiff's allegations that two officers of the Benicia Police Department violated plaintiff's rights under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures.*fn2

Plaintiff's Second Amended Complaint alleges claims pursuant to 42 U.S.C. § 1983 against Benicia Police Department officers Kevin Barreto and Mark Simonson. In essence, plaintiff alleges that on June 28, 2008, officer Barr eto unlawfully searched plaintiff during a traffic stop and officer Simonson unlawfully used a Taser on plaintiff, all of which violated plaintiff's constitutional rights. (See Second Am. Compl. ¶¶ 2(1)-(2).) Plaintiff appears to allege constitutional violations based on two unlawful searches of his person by Barreto, and one constitutional violation based on the use of excessive force by Simonson.


Before addressing defendants' motion for summary judgment, the undersigned addresses plaintiff's motion for relief from a final judgment, order, or proceeding, which makes up the bulk of plaintiff's written opposition to the motion for summary judgment. (See Pl.'s Opp'n at 1-6.) Pursuant to Federal Rule of Civil Procedure 60(b), plaintiff seeks relief from a final judgment, order, or proceeding, on the grounds that defendants committed fraud, made misrepresentations, or committed misconduct in moving for summary judgment. (See id. at 2.) Specifically, plaintiff "believes that defendants have misrepresented themselves in their statement of genuine material facts by adding in words, events, or actions that (1) did not happen (2) and are not present on any of the previous statements given by defendants." (Id.)

Federal Rule of Civil Procedure 60(b)(3) authorizes a party to file a motion for relief from "a final judgment, order, or proceeding" on the grounds of "fraud . . . , misrepresentation, or misconduct by an opposing party." By rule, "[a] motion under Rule 60(b) must be made within a reasonable time, and a motion made pursuant to Rule 60(b)(3) must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1).

Setting aside the merits of plaintiff's allegations of fraud, misrepresentations, and misconduct, the court denies plaintiff's Rule 60(b)(3) motion as prematurely filed. Relief granted pursuant to Rule 60(b) is relief from a "final judgment, order, or proceeding." Fed. R. Civ. P. 60(b) (emphasis added). The term "final" modifies not only the term "judgment," but also the terms "order" and "proceeding." See Fed. R. Civ. P. 60(b) advisory committee's notes to 1946 amend. ("The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief . . . ."); Kapco Mfg. Co. v. C & O Enters., Inc., 773 F.2d 151, 154 (7th Cir. 1985) (stating that "'final' in Rule 60(b) must modify 'order, or proceeding' as well as 'judgment,'" and that Rule 60(b) "is a method of reopening a closed case"). Here, plaintiff does not seek relief from a final judgment, final order, or final proceeding. Indeed, plaintiff could not have sought such relief in opposing a motion for summary judgment because the court has not entered a final judgment or final order, and no final proceeding had taken place at the time of plaintiff's filing. Accordingly, plaintiff's prematurely filed Rule 60(b)(3) motion is denied.


Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn3 A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").

If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually exists. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."*fn4 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).

In resolving a motion for summary judgment, the evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. SeeMatsushita, 475 U.S. at 587; Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). However, to demonstrate a genuine factual dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).


In accordance with Local Rule 260(a), defendants filed a Statement of Undisputed Material Facts ("SUF") in support of their motion for summary judgment. (Defs.' SUF, Dkt. No. 47, Doc. No. 47-2.) Plaintiff failed to directly respond to defendants' Statement of Undisputed Material Facts or file a statement of disputed facts, which violates Local Rule 260(b) and the court's order requiring plaintiff to file an opposition and supporting materials that comply with Federal Rule of Civil Procedure 56 and Local Rule 260.*fn5 (Order, Apr. 16, 2012, at 2, Dkt. No. 57.) Unless otherwise noted, the following facts have not been disputed by plaintiff.

On June 28, 2008, at approximately 8:40 p.m., uniformed officer Barreto of the Benicia Police Department was traveling east in his department vehicle on Military East in Benicia, California. (Defs.' SUF ¶ 1; see also Barreto Decl. ¶ 3.) Barreto was following a blue Chevy van, which had an inoperable taillight in violation of California Vehicle Code § 24603(b). (Defs.' SUF ¶ 2.)*fn6 Barreto activated his vehicle's overhead lights and initiated a traffic stop, and the van pulled into a parking stall located at 774 Military East in Benicia.*fn7 (Id. ¶¶ 3-4.)

When Barreto stopped and exited his vehicle, a man later identified as plaintiff quickly exited the blue van and began to walk away from Barreto. (Defs.' SUF ¶ 5.) Barreto ordered plaintiff to stop and sit back down in plaintiff's vehicle. (Id. ¶ 6; Barreto Decl. ¶ 5.) Instead of immediately complying with Barreto's command, plaintiff questioned Barreto regarding why plaintiff needed to return to the vehicle. (Defs.' SUF ¶ 7.) Barreto then ordered plaintiff to sit on the ground, but plaintiff again refused to comply and questioned the command. (Id. ¶¶ 8-9.) Plaintiff ultimately sat on the ground. (Pl.'s Depo. at 41:3-5; Barreto Decl ¶ 5.)

Barreto informed plaintiff that he had pulled plaintiff over because of the van's inoperable taillight, and asked for plaintiff's identification. (Defs.' SUF ¶¶ 10-11.) Plaintiff told Barreto that he had no identification on his person, but that his identification was in the van. (Id. ¶ 11.) Plaintiff was speaking quickly and appeared nervous to Barreto. (Id. ¶ 12.) Barreto requested a "cover unit," and another uniformed Benicia Police Department officer, Simonson, arrived a short time later. (Id. ¶¶ 13-14.)

Barreto declares that because of plaintiff's "argumentative demeanor, his lack of identification and his reluctance to follow [Barreto's] instructions, [Barreto] believed [plaintiff] may be armed with a dangerous weapon." (Barreto Decl. ¶ 7; see also Defs.' SUF ¶ 15.) Barreto declares that as a result of his suspicion, he "decided to conduct a pat frisk" and informed plaintiff that he was going to search plaintiff ...

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