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Tristen Pilato and William Thomas v. Joshua Rhodes

February 11, 2013

TRISTEN PILATO AND WILLIAM THOMAS, PLAINTIFFS,
v.
JOSHUA RHODES, MICHAEL HAMILTON, VANCE STOLTE, AND DOES 1-25, DEFENDANTS.



The opinion of the court was delivered by: Jesus G. Bernal United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Motion filed on December 6, 2012]

The Court has received and considered all Defendants' papers filed in support of their Motion for Summary Judgment. A hearing on this matter took place on February 11, 2013, and all arguments presented have been considered by the Court. For the reasons discussed below, Defendants' unopposed motion for summary judgment will be granted and judgment will be entered against Plaintiffs.

I. BACKGROUND

A. Plaintiffs' Allegations

Plaintiffs Tristen Pilato ("Pilato" )and William Thomas ("Thomas") filed a complaint on January 18, 2012. (Compl., Doc. No. 1.) The complaint alleges three claims under 42 U.S.C. § 1983 against Defendants Joshua Rhodes ("Rhodes"), Michael Hamilton ("Hamilton"), Vance Stolte ("Stolte"), and Does 1-25. Rhodes and Hamilton are Deputies with the Riverside County Sheriff's Department and are supervised by Stolte, a Sergeant. (Compl., ¶¶ 4-5.) They are sued in their individual and official capacities. (Compl., ¶ 4.)

The complaint alleges that Defendants investigated Plaintiffs for narcotics trafficking between January 20 and February 3, 2011. (Compl., ¶ 9.) Plaintiffs allege that Defendants used a cooperating informant named "Kelly

C." to develop probable cause to secure a search warrant for Plaintiffs' residence. (Id.) According to the complaint, Rhodes contacted Kelly C. on January 19, 2011 and asked her to go to Plaintiffs' home in response to a Craigslist ad. (Compl., ¶ 12b.) Plaintiffs allege Rhodes told Kelly C., "[A]ll I need you to do is tell me you saw drugs," and "I can get a warrant to enter the premises." (Id.) On January 20, 2011, Pilato invited Kelly C. to Plaintiffs' home that evening. (Comp., ¶ 12c.) Kelly C. met Plaintiffs at their home, and the complaint alleges that at no time did Plaintiffs display, intimate they possessed or had access to any controlled substances. (Comp., ¶ 12d.)

The complaint alleges that Kelly C. reported to Defendants that she had learned no information that would support a finding of probable cause to search Plaintiffs' home. (Compl., ¶ 13.) Plaintiffs assert that Defendants tried to convince Kelly C. to report she had seen controlled substances, but she declined to falsify evidence. (Id.)

Plaintiffs allege that on February 3, 2011 Rhodes, with the knowledge and consent of Hamilton and Stolte, submitted an affidavit to a Riverside County Superior Court Judge seeking a search warrant for Plaintiffs' home. (Compl., ¶ 10.) The affidavit, according to the complaint, stated that Kelly C. "observed controlled substances while in Plaintiffs' home and/or that Plaintiffs had admitted to her that they were engaged in the distribution of narcotics." (Id.) The complaint maintains that these assertions were false and Defendants knew them to be false. (Compl., ¶ 11.)

On February 3, 2011, a Riverside County Superior Court Judge issued the search warrant for Plaintiffs' residence authorizing a search for, among other things, methamphetamine and associated paraphernalia and chemicals. (Compl., ¶ 14.) At 3:30pm the same day, Defendants and at least five other law enforcement officers executed the warrant. (Compl., ¶ 15.) Plaintiffs allege that "none of the evidence the Defendants were looking for was located." (Compl., ¶

16.)

Pilato was arrested and booked on charges of possession and use of a controlled substance, violating Cal. Health & Safety Code §§ 11377(a), 11350(a), and 11550(a). (Compl., ¶ 16.) Thomas was arrested and booked on charges of being a felon in possession of a firearm in violation of Cal. Penal Code § 12021(a)(1). (Id.) Plaintiffs assert they spent 20 hours in custody. (Id.)

Plaintiffs allege that as of the date of the complaint, the Riverside County District Attorney's Office had not filed charges against them. (Compl., ¶ 17.)

B. Procedural Background

In their complaint filed on January 18, 2012, Plaintiffs allege the following claims under 42 U.S.C. § 1983: (1) fabrication of false evidence in violation of the Fifth and Fourteenth Amendments ("First Claim"); (2) unreasonable search in violation of the Fourth Amendment ("Second Claim"); and (3) unreasonable seizure in violation of the Fourth Amendment ("Third Claim"). (Compl., ¶¶ 18-38.) In addition to general and statutory damages, Plaintiffs request exemplary and punitive damages because Defendants acted maliciously and with reckless and callous disregard for Plaintiffs' rights. (Compl., ¶¶ 25, 32, 38.)

On February 23, 2012, Defendants answered the complaint and asserted several affirmative defenses. (Doc. No. 6.) On December 6, 2012, Defendants filed a Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment. ("MSJ," Doc. No. 43.) Along with their MSJ, Defendants filed a Statement of Undisputed Material Facts ("SUF," Doc. No. 43-2), a declaration of Michael Hamilton (Doc. No. 43-3), and a declaration of Stephanie J. Tanada, attaching Exhibits AG. (Doc. No. 43-4.) Plaintiffs have not filed any opposition papers with the Court. Defendants replied on December 25, 2012. ("Reply," Doc. No. 50.)

On December 25, 2012, Defendants filed a Reply to "Plaintiff's Statement of Genuine Dispute of Defendants' Notice of Motion for Summary Judgment, Or Partial Summary Judgment." ("Second Reply," Doc. No. 51.) Counsel for Defendants state that on December 22, 2012 they received a copy of an email from Plaintiff Tristen Pilato sent to the courtroom deputy of Magistrate Judge Parada. (Reply at 1-2.) The email contained an attachment with a document entitled "Plaintiff's Statement of Genuine Dispute," ("SGD") which Defendants attached to their Second Reply as Exhibit 1. (Reply at 2.)

Plaintiffs' SGD was not e-filed or hand filed with the Court in violation of Fed. R. Civ. P. 5(d). The SGD does not appear on the docket, nor was a paper copy delivered to chambers as required by Local Rule 5-4.5. Plaintiffs did not serve the SGD on Defendants as required by Fed. R. Civ. P. 5(a). (Reply at 2.) Under L.R. 5-4.1, all documents must be filed electronically using the Court's CM-ECF system. "Sending a document by e-mail does not constitute an electronic filing." L.R. 5-4.1. Since the SGD was not properly filed with the Court, the Court will consider the MSJ unopposed. See L.R. 7-12 ("The Court may decline to consider any memorandum or other document not filed within the deadline set by order or local rule.").

Even if the Court were to consider Plaintiffs' Statement of Genuine Dispute, it would not change the outcome of this motion. First, Plaintiffs claim many of Defendants' facts are "questionable" or "possibly disputed." These are not proper terms to dispute the facts in question, and therefore these facts are deemed undisputed. Second, for those facts where a dispute is properly noted, few citations to evidence are provided and no supporting evidence is attached to the document. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) ("[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment."). In the few places where Plaintiffs include citations to Defendants' depositions, Plaintiffs fail to append the cited pages to their document, making it impossible for the Court to review the alleged supporting evidence. Therefore, Plaintiffs' Statement of Genuine Dispute fails to put forth any affirmative evidence sufficient to place any of Defendants' material facts in dispute.

Finally, Plaintiffs are reminded that they are represented by counsel, and therefore should not contact the Court pro se. L.R. 83-2.9.

II. LEGAL STANDARD

A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes ...


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