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Joseph P. Cuviello, Et v. Cal Expo

September 17, 2012



This case was on calendar on February 10, 2012 for argument on the individual defendants' motion to dismiss. Plaintiff Joseph Cuviello appeared pro se; Gilbert Leigh appeared for plaintiffs Deniz Bolbol and Shannon Campbell; David Beauvais appeared telephonically for plaintiff Mark Ennis; George Acero and David King appeared for defendants Cal Expo, Norbert Bartosik, Brian May, Robert Craft, Craig Walton, Robert Whittington, Larry Menard, Everest Robillard and John Tatarakis; and Matthew Liedle appeared for Rocky Mayes and orally joined the motion to dismiss. After considering the parties' argument, the court GRANTS in part and DENIES in part defendants' motion.

I. Standards For A Motion To Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001).

A court's consideration of documents attached to a complaint or incorporated by reference or as a matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion). In this case, defendants have provided a copy of Cal Expo's Free Speech Activities Guidelines in conjunction with their motion to dismiss. ECF No. 10-3 at 5-12. As plaintiffs challenge those guidelines both facially and as applied, their complaint depends on the contents of these guidelines and the court's consideration of them does not convert this into a motion for summary judgment. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

II. Background

Plaintiffs Joseph Cuviello, Deniz Bolbol, Shannon Campbell and Mark Ennis are members of a group that seeks to educate the public about the abuse and mistreatment of circus animals. Complaint, ECF No. 2 ¶ 20.*fn1 As part of their educational activities, they hold signs and banners, offer informational leaflets and show video footage of the mistreatment of circus animals. ¶ 21.

The Carson and Barnes Circus leased Parking Lot A on the grounds of Cal Expo for performances from May 20-22, 2011. ¶ 30.

On May 20, Cuviello and Bolbol faxed a letter to defendant Norbert Bartosik, Cal Expo's general manager, and defendant Robert Craft, Cal Expo's police chief, informing them of their intention to protest Carson and Barnes' use of animals. ¶ 34. While Cuviello, Campbell and Bolbol were en route to Sacramento, Bolbol received a call from defendant Brian May, the Deputy General Manager of Cal Expo, who said that they would not be allowed onto Cal Expo property to demonstrate because they had not applied for a permit seventy-two hours in advance, as required by Cal Expo's Free Speech Guidelines. ¶¶ 35-36. These guidelines provide, in relevant part, that activities are deemed to be "on-site" if they occur within Cal Expo's grounds and parking lots; that a "public forum" is an event wherein the facilities are available to members of the public for debate of social issues; that with the exception of the State Fair, no public forum events occur on Cal Expo's ground, but it is Cal Expo's policy to allow free speech activity when it is not inconsistent with Cal Expo's normal operations; that the parking areas become congested with vehicle traffic during events; that free expression zones are therefore necessary to balance the needs of those involved in free speech activities with the safety and needs of the patrons, who use narrow walkways to and from the parking areas; that groups wishing to engage in free speech activities should register with Cal Expo seventy-two hours before the event so as to allow Cal Expo to assign space for the free speech activities; that Cal Expo will not discriminate on the basis of ideas or beliefs in evaluating permit requests; that violations of any of the conditions shall be grounds for expulsion from Cal Expo's grounds, preceded, where possible, by an initial warning, though in the alternative, officers may issue a permit. ECF No. 10-3 at 7-10.

Plaintiff Ennis joined Cuviello, Bolbol and Campbell and the group proceeded to Cal Expo. ECF No. 2 ¶¶ 37. Defendant Mayes, a Cal Expo police officer, asked the plaintiffs if they were going to protest and asked for their permit. ¶ 39. When he learned they did not have one, Mayes told plaintiffs they could protest on the sidewalk but not come onto the grounds. ¶39. Cuviello, Bolbol and Campbell entered Cal Expo property and headed toward the circus tent in Parking Lot A while Ennis remained to talk to Mayes. Id. Mayes told Ennis that the group would be asked to leave and then cited for trespassing.

Defendant Tatarakis, another Cal Expo police officer, told plaintiffs they were not allowed on Cal Expo property without a permit but they could demonstrate on the sidewalk. ¶ 41. He said he was not threatening plaintiffs with arrest, but they "had been warned." Id. Plaintiffs remained in Parking Lot A near the entrance to the circus without incident for about an hour and a half and Campbell and Ennis videotaped the animals. ¶ 42.

Around 7:40 p.m., plaintiffs gathered their materials and began to leave Parking Lot A when six police cars arrived. ¶¶ 45-46. Defendant Craft and defendant Walton, a Cal Expo police chief, asked Cuviello and Bolbol for identification. ¶ 47. Craft said the protestors had refused to leave earlier when asked to do so and so they were being detained for trespassing. ¶¶ 47-48. Defendant Mayes told Cuviello to put his camera down because he was being arrested for trespassing. ¶ 48. Walton knocked Ennis's camera to the ground, handcuffed him, and said he was arresting Ennis for "602." ¶ 51. Officers took Campbell's camera and arrested him. ¶ 52. Two other officers grabbed Bolbol's arms, twisted them behind her back and pushed her to the ground. ¶ 49. Defendant Craft pointed to the plaintiffs and said "602." ¶ 53. Cuviello asked that they be cited and released.¶ 57. Mayes refused because he believed plaintiffs would continue in their activities. Cuviello countered that they were leaving because the circus had concluded for the evening. Id. Later Whittington, Mayes, Robillard and Menard questioned plaintiffs and filled out citations. ¶ 58. Mayes told Cuviello any personal property that would fit into an eight by eight inch bag would be booked into Sacramento County Jail with them and that they could pick up the rest during business hours. ¶ 59. Plaintiffs' demonstration materials, leaflets, and cameras were seized; Mayes told plaintiffs the materials would be booked into evidence. Id.

Plaintiffs were booked into Sacramento County Jail and when they were released early the next morning, they were given Notices To Appear, listing the charges as violations of California Penal Code §§ 602(o), 602.1(a) and 602.6. ¶¶ 64-65.

Plaintiffs returned to Cal Expo later on May 21 to resume protests, but did not have the signs, banners and leaflets seized by the Cal Expo officers. ¶¶ 66-67. Although plaintiffs remained on the sidewalk for their protest, defendant Craft told them they would be arrested for trespassing if they crossed onto Cal Expo property; he refused to show plaintiffs the property line. ¶¶ 69-71.

Plaintiffs protested on May 22, 2011 but were not approached by Cal Expo police officers. ¶ 74. Because their materials specific to the Carson and Barnes Circus had not been returned, their ability to disseminate their message was hampered. ¶ 75. Because they were relegated to the sidewalk, they were unable to reach a wide audience. Id.

Although plaintiffs arrived at the Cal Expo business office around 3:45 p.m. on May 23, 2011, they were unable to retrieve their confiscated materials. ¶ 78. The next morning plaintiff Cuviello called, as he had been instructed to do, but no one from Cal Expo returned his telephone call that day or the next. ¶¶ 80-83. On May 26, 2011, Walton told Cuviello and Bolbol they could retrieve their confiscated banners and a plastic bag of signs the next morning or on the morning of May 28; he said he did not know anything about additional materials. ¶ 85. The Cal Expo police department did not return plaintiffs' materials until the charges against plaintiffs were dropped, on June 15, 2011. ¶ 88.

Plaintiffs allege that all defendants "planned, authorized, directed, ratified, and/or personally participated in" retaliation against plaintiffs for the exercise of their First Amendment rights; arrested plaintiffs for engaging in constitutionally protected activities; refused to allow plaintiffs access to public areas of the Cal Expo complex in order to exercise their First Amendment rights; singled out plaintiffs because of their viewpoints; refused to return plaintiffs' property; and used threats and intimidation against plaintiffs. ¶ 89.

The complaint contains eight claims. The first, by all plaintiffs against all defendants, is based on violations of the First Amendment right to free exercise of speech, Fourth Amendment right against unlawful seizure, false arrest, excessive force, and malicious prosecution; the Fourteenth Amendment right to due process and equal protection of laws, all alleged as part of a claim brought under Title 42 U.S.C. § 1983; it includes Bolbol's claim of excessive force against defendants Craft and Menard. The second, by all plaintiffs against all defendants, alleges a conspiracy to violate plaintiffs' First, Fourth and Fourteenth Amendment rights and is brought under 42 U.S.C. §§ 1983 and 1985. The third, brought by all plaintiffs against all defendants, alleges a violation of Article I, section 2(a) of the California Constitution. The fourth, brought by all plaintiffs against the State of California, is a facial and as applied challenge to California Penal Code § 853.6(i)(7), which gives officers the discretion to book, rather than cite and release, if the officer believes the offense would continue or resume if the arrestee is released.*fn2 The fifth, brought by all plaintiffs against Cal Expo, is a facial and as applied challenge to Cal Expo's "Free Speech Activities Guidelines." The sixth, by all plaintiffs against defendants Cal Expo Police Officers, is for intentional infliction of emotional distress. The seventh, by all plaintiffs against all defendants, is for false arrest and false imprisonment. The eighth, by all plaintiffs against all defendants, is for a violation of California Civil Code section 52.1 (Bane Act). They name as defendants Cal Expo; Norbert Bartosik, General Manager of Cal Expo; Brian May, Deputy General Manager; Police Chief Robert Craft; Sergeant Craig Walton; and Officers Robert Whittington, Larry Menard, Everest Robillard and John Tatarakis.

The individual defendants mount a multi-pronged attack on the complaint. Each claim will be addressed separately below.

III. The § 1983 Claim (First Claim)

The individual defendants argue they are entitled to qualified immunity from plaintiffs' claim under the Civil Rights Act because they were enforcing Cal Expo's presumptively valid free speech guidelines. They also argue that the complaint does not state a claim against defendants Bartosik and May, as there are no allegations showing their connection to the arrest and detention of plaintiffs or against defendants Menard and Robillard, whose involvement began only after plaintiffs were detained.

Plaintiffs argue that the individual defendants who did not directly participate in the arrests are nonetheless liable as part of a conspiracy to deny plaintiffs their First and Fourteenth Amendment rights and defendants are not entitled to qualified immunity because they were not enforcing a law, but rather guidelines without the force of law. Defendants counter that the officers' reasonable basis for their actions - a belief that plaintiffs were trespassing because they had not obtained a permit for their activities - entitles them to qualified immunity.

A claim under 42 U.S.C. § 1983 has two elements: (1) A violation of a federal constitutional right, (2) committed by a person acting under state law. Long v. County of Los Angeles, 442 F.3d, 1178, 1185 (9th Cir. 2006). Defendants do not dispute that the complaint adequately pleads these elements, but rather argue they were not involved or are entitled to qualified immunity.

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant raises qualified immunity, "a ruling on that issue should be made early in the proceedings. . . ." Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). "[A] district court should decide the issue of qualified immunity as a matter of law when 'the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts.'" Conner v. Heiman, 672 F.3d 1126, 1131 (9th Cir. 2012) (quoting Peng v. Mei Chin Penghu, 335 F.3d 970, 979-80 (9th Cir. 2003)).

In determining whether a governmental officer is immune from suit based on the doctrine of qualified immunity, the court generally considers two questions. The district court may decide the order of addressing these questions and answer only the second, in accordance with fairness and efficiency and in light of the circumstances of a particular case. Pearson, 555 U.S. at 236. The first is, taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). A negative answer ends the analysis, with qualified immunity protecting defendant from liability. Id. If a constitutional violation occurred, a court must further inquire "whether the right was clearly established." Id. "If the law did not put the [defendant] on notice that [his] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202. A right is clearly established when all reasonable officers would understand that their actions violate that right; precedent at the time of the alleged violation "must have placed the statutory or constitutional question ...

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