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Gregory Pellerin v. Nevada County

March 27, 2013

GREGORY PELLERIN, PLAINTIFFS,
v.
NEVADA COUNTY, ET AL.,
DEFENDANTS.



ORDER

This case was on calendar on June 22, 2012 for argument on a motion to dismiss filed by defendants Nevada County, Jesse King, Gregory Weston and Katherine Francis. Patrick H. Dwyer appeared for plaintiff; Marcos A. Kropf appeared for defendants. After considering the parties' briefs, supplemental briefs and argument, the court GRANTS defendants' motion to dismiss in part and declines to exercise supplemental jurisdiction over the state claims.

I. BACKGROUND

On March 16, 2012, plaintiff filed a civil rights complaint against defendants

Nevada County; Deputy District Attorneys Gregory Weston and Katherine Francis; and Deputy Sheriff Jesse King, containing the following causes of action: (1) violation of Fourth and Fourteenth Amendment rights against Nevada County, stemming from the Sheriff's Department's failure to have a policy for handling and maintaining digital evidence; (2) violation of Fourth and Fourteenth Amendment rights against Nevada County, stemming from the District Attorney's Office's failure to have a policy for handling and maintaining digital evidence; (3) violation of Fourth and Fourteenth Amendment rights against King, stemming from his handling of digital evidence; (4) violation of Fourth and Fourteenth Amendment rights against Francis, stemming from his failure to review and produce exculpatory evidence; (5) violation of Fourth and Fourteenth Amendment rights against Weston, stemming from her failure to review and produce exculpatory evidence; (6) malicious prosecution against Nevada County; (7) a violation of California Civil Code § 52.1(b) against Nevada County and King; (8) intentional infliction of emotional distress against Nevada County and King; and (9) negligence against Nevada County and King.

According to the complaint, on April 20, 2010, process server Thomas Benzing came on to plaintiff's property in violation of a "stay away" order, assaulted plaintiff and placed plaintiff under citizen's arrest. Complaint, ECF No. 1, ¶ 8. As Benzing continued to assault plaintiff despite the citizen's arrest, plaintiff put Benzing in an armlock and asked his wife to call the sheriff. Id. ¶ 9. Plaintiff's wife, Susan Pellerin, filmed "almost the entire incident" on a Flip video camera, which she gave to defendant King, the responding officer. Id. ¶ 10. Even though Mrs. Pellerin had shown King the video of Benzing attacking plaintiff, King took plaintiff into custody. Id. ¶¶ 10-11.

King plugged the Flip video camera into a USB port on a Sheriff's Department computer and produced an edited version of the video. Id. ¶ 22. At that time neither the Sheriff's Office nor the District Attorney's Office had policies concerning the handling, viewing, processing, enhancing or examining of digital evidence and had not trained their employees to make forensic copies of such evidence. Id. ¶¶ 15-21. As a result, King did not make a forensic copy of the digital evidence, but rather produced a clip of the video designed to show plaintiff in a bad light and in the course of making it, erased portions of the video from the Flip camera. Id.

¶ 24.

Plaintiff's counsel sent informal discovery requests to Francis, asking for the entire contents of the Flip video camera; Francis finally produced a copy of the edited clip on June 24, 2010. Id. ¶ 25. Plaintiff secured permission to inspect the video camera and discovered that there was not a single ten-to-fifteen minute recording as Mrs. Pellerin had reported to him, but multiple files, none of which matched the clip Francis had turned over. Id.

¶¶ 27-28. Plaintiff then secured permission for an expert to undertake a forensic examination of the camera and of any Sheriff's Department computers involved in making the short clip. Id.

¶ 29. Plaintiff's expert determined it was possible that Mrs. Pellerin's ten-to-fifteen minute video had been altered, as it had been broken into three separate files with unexplained time gaps between them. Id. ¶ 33.

Neither Francis nor Weston, who took over the case, explored whether the Sheriff's Department had made a forensic copy of the video or had turned over the entire video to the District Attorney's Office. Id. ¶ 31. Weston repeatedly refused to review the exculpatory portions of the video. Id. ¶ 35.

The Nevada County Superior Court held an evidentiary hearing concerning the handling of the evidence on the Flip video camera. Id. ¶ 36.

Plaintiff's counsel also filed a motion to dismiss the charges, alleging that the handling of the digital evidence violated his right to the release of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and a motion to recuse the District Attorney's Office, based on the District Attorney's conflict of interest. Id. ¶¶ 38-39. After a hearing, the Superior Court denied both motions. Id. ¶ 40. Counsel filed a petition for a writ of mandate in the Court of Appeal, which issued an alternative writ granting the request for recusal of the District Attorney's office. Id. ¶ 41.

The Attorney General's Office substituted in as the prosecutor and thereafter met with plaintiff's counsel to watch the entire video of the incident with Benzing. Id. ¶¶ 43, 44. On January 26, 2012, the Attorney General's Office dismissed the case. Id. ¶ 45.

II. 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, 678 (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. (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 679. 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 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, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 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).

III. ANALYSIS

Defendants argue that to the extent the District Attorney's Office and the individual deputy district attorneys are sued in their official capacities, they are entitled to Eleventh Amendment immunity because they are deemed to be state officials; to the extent they are sued in their individual capacities, they are entitled to absolute prosecutorial immunity. They also argue that none of the claims against the county, the prosecutors and the Sheriff's Department and deputies are cognizable because they were decided against plaintiff in the criminal proceedings in Nevada County. They argue that plaintiff cannot raise a Brady claim based on his contention that King mishandled the evidence and that the prosecutors ignored the evidence because defendant was not convicted, the evidence was eventually disclosed, and plaintiff was aware of it, but to the extent that the evidence was mishandled, this does not implicate the Fourth Amendment. They also ...


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