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Thad Young and Sandra Young v. City of Visalia

August 31, 2012



This is a civil rights case that arises out of the execution of a search warrant by police officers from the City of Visalia and the City of Farmersville ("Farmersville"). Plaintiffs Thad and Sandra Young have alleged federal and state law claims against 23 defendants. Farmersville and Farmersville police officers Troy Everett ("Everett") and Sergeant Mike Marquez (collectively "Farmersville Defendants") now move for summary judgment.*fn1 For the reasons that follow, the motion will be granted in part and denied in part.


In December 2007, members of the Visalia Police Department executed a search warrant on Thad Young's property. DUMF 1. The search warrant authorized the search of three separate properties/addresses (one of which was owned by Plaintiffs and the other two by Javier Godinez) for narcotics and items commonly associated with narcotics. See DUMF's 2, 3, 11; Holland Ex. 9. The warrant also authorized the search of Javier Godinez's person. See Holland Ex. 9. When officers arrived at the Plaintiffs' property, several unknown officers found Thad Young ("Young") in his shop. See Young Dec. ¶ 7. Young was detained at gun point, handcuffed, and escorted to the living room of his home. See id.

Members of the Farmersville police department were present during the execution of the search warrant. See Holland Dec. Ex. 1 at 58:9-24. Chief Krstic and Marquez arrived at Plaintiffs' property. See Marquez Depo. 11:4-6; Krstic Depo. 18:17-25. Young saw Marquez at the back of one of the properties as Young was being escorted from his shop and into his livingroom. See Young Dec. ¶ 7. Further, Justin Thomas, Young's neighbor, saw police cars, including Farmersville police cars, arrive at and surround Young's property. See Thomas Dec. ¶

1. Marquez entered several rooms and buildings on Plaintiffs' property during the execution of the search warrant, and Marquez was present in a bedroom when Detectives Flaws and Gilbert interrogated Young, but Marquez did not actually participate in the search of any buildings that he entered. See Marquez Depo. 19:10-20:22; Young Dec. ¶ 8. Chief Krstic understood that the search was a Visalia Police Department narcotics unit operation. DUMF 5.

A Visalia police officer asked Marquez if a Farmersville police officer could come to Young's property to "stand by." See Marquez Depo. 10:6-24. Marquez contacted Everett and had Everett come to the Young's property. See Marquez Depo. 9:14-16; Everett Depo. 8:4-26. Later, a Visalia police officer requested that Everett stand by Young in Young's residence while the officers went to another location. See DUMF 9. Marquez then left Plaintiffs' property, and the other officers left Young's property to search the two other properties that belonged to Javier Godinez. See DUMF's 10, 11. At the time the officers left, no search was occurring and the search of Plaintiffs' property had essentially ended. See Everett Depo. 31:15-21.

Everett and a rookie police officer complied with the Visalia police officer's request and were left to stand by Young in the living room. See DUMF 12; Everett Depo. 25:19-26:14. The rookie officer left 15 to 30 minutes after the other officers left. DUMF 13. Everett remained in the residence with Young for 45 minutes to 1 hour after the officers left. DUMF 14. While Everett stood by Young, Everett was polite and professional, he did not threaten Young, and Young did not feel that his life was in danger while he sat with Everett and the rookie. See DUMF's 15, 17, 18. Young thought that Everett was just "killing time" with Young in order to make the situation easier. See DUMF 19, 20. Young really liked Everett. DUMF 16. On one occasion, Young asked Everett for permission to take a pain pill, take diabetes medication, and use the restroom. See Young Depo. 364:14-365:9; DUMF 26. Everett denied Young's request and replied that Young could not leave the room and could not have anything. See id. at 365:10-18. Everett said that once he received a call from the Visalia police, then Young would be able to go. See Young Dec. ¶ 4. Everett was later notified by telephone that Young no longer needed to be detained, and Young was immediately released. See DUMF 28. Everett uncuffed Young and then immediately left. See Young Depo. 199:22-24. When Everett left, Young was able to use the restroom and take his medication. See Young Depo. 369:25-370:10. From the time Everett denied Young's request to the time that Young was able to use the restroom and take his medication, about 45 minutes had elapsed. See id.

By the time Everett left, Young had been detained for approximately 6 hours without food, liquid, access to a restroom, or access to heart, diabetes, and pain medications. See Young Dec. ¶ 4. Everett was present when Young first asked the Visalia officers for permission to use the restroom, and the first time that Young asked to use the restroom was "several hours" prior to the 45 minutes to 1 hour that Young spent with Everett. See Young Depo. at 367:10-368:7; see also Young Dec. ¶ 4. Young believes that Everett was present to hear when Young clearly informed officers of his medical conditions, and need for food, liquid, use of the restroom, and medication, and Everett was also present when Young's son repeated the request. See Young Dec. ¶ 4. After three hours of the six hour detention had elapsed, Young was no longer able to control his bladder and wet himself. See Young Depo. 299:21-300:8. Visalia police officer Abbott told Young, "If you need to go to the bathroom, do it in your pants." Id. at 300:13-18. When the other officers had left and Everett was the only officer remaining, Young was sitting on a stool and was still wet. See id. at 300:2-8. Everett stood directly in front of Young and had an unobstructed view of Young's pants, which were darkened in the crotch area from when Young lost control of his bladder. See Supp. Young Dec. ¶¶ 1-2.

Everett did not see the search warrant, and did not know the scope of the search warrant. See DUMF's 21, 22. Marquez did not inform Everett as to the progress in serving the search warrant. DUMF 23. Everett did not understand Young to be under arrest. See Everett Depo. 25:19-22. Everett testified that the other officers did not convey why Young was being held in the living room, but did testify that the reason Young continued to be detained after the conclusion of the search was so that the other officers could go to the other search locations without Young informing the occupants at the other location. See Everett Depo. 22:23-26, 26:6-14, 31:22-26. Everett was not told that the suspect associated with the other properties to be searched (Javier Godinez) had been arrested. DUMF 25.


Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d at 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a "justifiable inference" need not be the most likely or the most persuasive inference, a "justifiable inference" must be rational or reasonable. See Narayan, 616 F.3d at 899. Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

Finally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to comb through the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009).


I. First & Second Causes of Action -- 42 U.S.C. § 1983 -- Unlawful Search & Destruction of Property

Defendants' Argument

Defendants argue that they did not search Young's residence, rather, the search was conducted by Visalia police officers. This was not a joint operation, Farmersville was not asked to provide officers, and Farmersville officers arrived after the search had begun.

Plaintiffs' Opposition

Plaintiffs argue that Thad Young saw Marquez early in the process of executing the search warrant. Young saw Marquez enter Young's property shortly before other police officers detained Young at gun point. Young was eventually taken to a bedroom in his residence and was questioned by Visalia police officers, including Detective Flaws. Marquez was present in the bedroom. Further, Flaws testified at a related criminal proceeding that "other officers" participated in searching the bedroom. Marquez must have been one of the officers who searched based on his presence in the bedroom and his prolonged presence at Young's property.

Legal Standard "A person subjects another to the deprivation of a constitutional right, within the meaning of [42 U.S.C. § 1983], if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As such, a plaintiff cannot hold an officer liable simply because of the officer's "membership in a group without a showing of individual participation in the unlawful conduct." Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002); see Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005); Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). That is, "holding an officer liable who was merely present at the [incident] is not permissible." Jones, 297 F.3d at 939; see Motley, 432 F.3d at 1082; Lolli v. County of Orange, 351 F.3d 410, 417 (9th Cir. 2003). A plaintiff must "establish the 'integral participation' of the officers in the alleged constitutional violation." Jones, 297 F.3d at 935; see Torres v. City of Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008). "Integral participation" requires "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th Cir. 2007); see Torres, 548 F.3d at 1206. Further, as long as there is sufficient evidence to permit a jury to infer that the individual defendants each participated in a constitutional deprivation, the plaintiff's inability to identify which defendants performed which specific acts is not fatal. See Jones, 297 F.3d at 935-36; Rutherford v. City of Berkeley, 780 F.2d 1444, 1448 (9th Cir. 1986).


1. Officer Marquez

a. First Cause of Action

The first cause of action alleges that Defendants illegally entered and searched the Old Grange Hall.*fn3 See Doc. No. 70 at ¶¶ 17-18. Marquez testified that he entered the Old Grange Hall, saw other officers searching the Old Grange Hall, knew that Young owned the Old Grange Hall, did not leave the Old Grange Hall with any property, and was in the Old Grange Hall for 5 to 10 minutes. See Marquez Depo. 17:1-20:10. Marquez also testified that he did not participate in the search of any of the buildings. See DUMF 8; Marquez Depo. 20:19-22.

If an individual has a reasonable expectation of privacy in a property or building, then the Fourth Amendment prohibits government officials from entering that property or building in the absence of a warrant, exigent circumstances, or permission. See Michigan v. Clifford, 464 U.S. 287, 292-93 (1984); Conner v. City of Santa Ana, 897 F.2d 1487, 1490-92 (9th Cir. 1990). Here, because Marquez admits that he entered and remained in the Old Grange Hall for 5 to 10 minutes, he is required to explain and show how his entry and presence in the Old Grange Hall was permissible under the Fourth Amendment. Marquez's motion centers around the assertion that he did not participate in any searches. See DUMF 8. The evidence shows that Marquez did not "actively search" the Old Grange Hall. Nevertheless, Marquez admitted to entering, remaining, and observing inside the Old Grange Hall. See Marquez Depo. 17:1-20:10. The Fourth Amendment protects against both unreasonable entry into property and unreasonable "active searches." See United States v. Washington, 387 F.3d 1060, 1071 (9th Cir. 2004) (discussing separate Fourth Amendment violations for entry and search of a hotel room); LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir. 2000) (noting Fourth Amendment's prohibition against warrantless entry); United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) ("A warranted search is unreasonable if it exceeds in scope or intensity the terms of the warrant."). That Marquez did not actively search while inside the Old Grange Hall fails to address the issue of Marquez's initial entry into the Old Grange Hall, which is alleged to be unconstitutional.

The Court views the first cause of actions as complaining about two Fourth Amendment violations: an unreasonable entry and an unreasonable search. Because there is no evidence that Marquez actively searched, summary judgment on this part of the cause of action is appropriate. However, because Marquez does not address the propriety of his entry into the Old Grange Hall, summary judgment on this part of the first cause of action will be denied.

b. Second Cause of Action

The second cause of action alleges that in the course of searching the Old Grange Hall and Young's residence, the Defendants destroyed various pieces of property. Again, Marquez testified in his deposition that he did not participate in any searches. See Marquez Depo. 20:19-22. Plaintiffs have shown that Marquez was present early in the process of executing the search warrant. See Young Dec. ¶ 7. Plaintiffs have also shown that Marquez was present in the Old Grange Hall for 5 or 10 minutes, see Marquez Depo. 17:1-20:10, and present in the bedroom when Young was taken to there and questioned by Visalia police officers. See id. Young Dec. at ¶ 8. However, Young did not testify that he saw Marquez searching, and he has not presented any form of evidence -- be it statements by other officers, statements by Marquez, statements by witnesses, or conduct by Marquez -- that reasonably show that Marquez actively searched or actually moved or damaged any property. Instead, Plaintiffs have only shown that Marquez was present on Young's property while other officers actively searched. "[H]olding an officer liable who was merely present at the [incident] is not permissible." Jones, 297 F.3d at 939; see Motley, 432 F.3d at 1082; Lolli, 351 F.3d at 417.

Because the evidence shows that Marquez did not actively search or damage any property, summary judgment on the second cause of action ...

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