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Michael Dillman, An Individual, and v. Tuolumne County

May 7, 2013


The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge



Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Diane Feinstein and Barbara Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

Civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California.


This case concerns the September 18, 2011 arrest of Plaintiffs Michael and Stephen Dillman for alleged "joyriding" and related offenses in connection with their use of a thirteen-foot aluminum fishing boat on Lake Donnell, in Tuolumne County. The Complaint's first cause of action, brought under 42 U.S.C. § 1983, alleges that Defendants Tuolumne County (the "County") and Tuolumne County Sheriff's Deputy David Vasquez violated Plaintiffs' federal constitutional rights by, among other things:

(1) subjecting both Plaintiffs to unreasonable force in connection with their arrest; (2) subjecting Michael Dillman to a strip search and other "outrageous humiliation" during the booking process; (3) and singling Michael Dillman out for such a "degrading and humiliating" strip search in part because he "was an ordained pastor accused of a crime." Doc. 1, First Amended Compl. ("FAC"), at ¶ 35-41. The Complaint also contains the following related state law claims:

* Violation of California's Bane Civil Rights Act, Cal. Civ. Code § 52.1, against all Defendants (Second Cause of Action);

* Battery against Defendant Vasquez (Third Cause of Action);

* Intentional Infliction of Emotional Distress against Defendant Vasquez and "certain yet to be named individual defendants" (Fourth Cause of Action);

* Negligence against Defendant Vasquez and "certain yet to be named individual defendants" (Fifth Cause of Action); and

* Violation of California Penal Code § 4030 against the County and "certain yet to be named individual defendants" (Sixth Cause of Action).

FAC at 14-19.

The Complaint was originally filed in the Superior Court for the County of Tuolumne on February 13, 2013, but was removed by Defendants on March 18, 2013 pursuant to 28 U.S.C. §§ 1441(a) and 1446(a). Doc. 1. Defendants Vasquez and the County now move to dismiss. Doc. 9. Plaintiff opposes dismissal, Doc. 11, and requests judicial notice of several documents, Doc. 10. Defendants replied. Doc. 12. The hearing was vacated and the matter taken under submission on the papers pursuant to Local Rule 230(g). Doc. 13.


On September 18, 2011, after conducting Sunday morning service at his church in Manteca, Pastor Michael Dillman, and his son, Stephen Dillman, drove to Lake Donnell in Tuolumne County, California, to go fishing. FAC ¶ 10. As was their custom and practice over the years, Plaintiffs placed their own motor on a thirteen-foot Valco aluminum boat at Lake Donnell. FAC ¶ 11. There was no registration, insignia, or identification on the boat. Id. According to Plaintiffs, for the last thirty years they and other fisherman have left aluminum boats moored at Lake Donnell, and it has been common practice to pack in one's own motor, place it on one of the moored boat, take the boat fishing, and then return the boat to the dock. Id. In fact, in or around 2010 Michael Dillman purchased an aluminum boat identical to the boat Plaintiffs used on September 18, 2011, and left that boat at Lake Donnell for his own use and for use by other fishermen. Id. Two aluminum boats purchased by Plaintiffs are moored currently at Lake Donnell. Id.

While Plaintiffs were out on Lake Donnell on September 18, 2011, an employee of Tri-Dam Project, the entity that operates the facility at Lake Donnell, called the Tuolumne County Sheriff's Department to report seeing two unidentified men place a motor on an aluminum boat that allegedly belonged to Tri-Dam Project. FAC ¶ 12. The men then took the boat out fishing. Id. The Tri-Dam Project employee viewed these events on surveillance cameras at Lake Donnell. Id.

After returning from fishing, Plaintiffs were met by Defendant Tuolumne County Sheriff's Deputy David Vasquez, who ordered them up a ladder at the dam facility and informed them they were under arrest for joyriding in a boat, trespass, and vandalism. FAC ¶ 13. Defendant Vasquez then handcuffed Plaintiffs with their hands behind their backs, in a "high, tight and painful manner." Id Michael Dillman explained to Deputy Vasquez that he was a pastor, a community leader, and that he was unarmed and posed no threat to him. Id. Michael Dillman also explained to Deputy Vasquez that he was a Vietnam War veteran and suffered from Post-Traumatic Stress Disorder ("PTSD") and extreme claustrophobia. Id. At the time of the incident, Michael Dillman was 63 and suffered from arthritic shoulder pain, which was exacerbated by the high and tight handcuff placement behind his back. Id. Upon being cuffed, he began to feel pain immediately, which escalated to "an excruciating level." Id.

Michael Dillman pled with Deputy Vasquez to cite and release him and his son and to refrain from placing them into the back of the police vehicle with their arms cuffed behind their backs. FAC ¶

14. Michael Dillman told Deputy Vasquez that he feared if he were placed in such a position in the back of a vehicle with the windows rolled up, he would suffer a PTSD episode. Id. He pled with Deputy Vasquez to loosen the cuffs to reduce the pain or to cuff him in front and to crack the window in the back of the vehicle so he could get air. Id. Deputy Vasquez finally agreed to "double cuff" Michael Dillman; however, his hands remained behind his back and the cuffs were extremely tight on his wrists. Id.

Plaintiffs were "shoved" into the back of Deputy Vasquez's vehicle and immediately transported to the Tuolumne County Jail in Sonora, California, over an hour drive from Lake Donnell. FAC ¶ 15. A portion of the drive was on a bumpy road and both men were cuffed behind their backs in an extremely painful manner. Id. Plaintiff Michael Dillman continued to plead with Deputy Vasquez to crack the window and loosen his handcuffs. Id. Instead of doing so, Deputy Vasquez cursed Plaintiff Michael Dillman and threatened to "hog tie his ass!" Id. Plaintiff Michael Dillman then suffered a "PTSD episode" during the transport to the Tuolumne County Jail. Id.

According to Plaintiffs, when they arrived at the Tuolumne County Jail they were cursed and humiliated by Tuolumne County Sheriff's Department personnel. FAC ¶ 16. Plaintiffs claim that Michael Dillman was called a "psycho preacher" and was forced to completely undress in the presence of two female deputies, who openly commented on his nakedness. Id. Stephen Dillman was not strip-searched. Id. Michael Dillman was then separated from his son and placed naked in a small padded cell on cold concrete and given no way to cover himself from his nakedness or protect himself from the cold. Id. After approximately two hours in that padded cell, Michael Dillman was returned to the holding cell with his son. Id.

Plaintiffs were released from custody at approximately 1:00 a.m. on September 19, 2011. FAC ¶ 17. According to Plaintiffs, Jail personnel refused to return money that had been confiscated from them during the booking process. Id. Instead, Plaintiffs were given a voucher card, which required them to wait until the banks opened in the morning before they could access any money. Id.

Tuolumne County chose to prosecute Plaintiffs, and a criminal jury trial commenced on February 6, 2012. FAC ¶ 18. Plaintiffs were acquitted of all charges. Id.


A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

To survive a 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Thus, "bare assertions ... amount[ing] to nothing more than a 'formulaic recitation of the elements'... are not entitled to be assumed true." Iqbal, 556 U.S. at 681. In practice, "a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562. To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).


A.Section 1983 Claim.

The First Cause of Action alleges that all Defendants violated Title 42, United States Code, section 1983 ("Section 1983"). Section 1983 creates a cause of action "against any person acting under color of law who deprives another of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003). The Complaint alleges Defendant Vasquez and the County violated Plaintiffs' First, Fourth, and Fourteenth Amendments rights.

1.Section 1983 Claims Against Defendant Vasquez.

a.Probable Cause for Arrest.

The Fourth Amendment requires that a warrantless arrest be supported by probable cause. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). "Probable cause for a warrantless arrest arises when the facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe that the suspect has committed ... an offense." Crowe v. Cnty. of San Diego, 608 F.3d 406, 432 (9th Cir. 2010) (internal quotation and citation omitted). In determining whether there was probable cause to arrest, a court must look to "the totality of circumstances known to the arresting officers, [to determine if] a prudent person would have concluded there was a fair probability that [the defendant] had committed a crime." Id.

In most cases, in establishing probable cause, "officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness' knowledge or interview other witnesses." Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). For example, the complaint in Arpin survived a motion to dismiss where the arrestee alleged that the arresting officer "refused to identify himself, would not inform [the arrestee] of the reason she was being arrested, and did not allow [her] to explain her side of the story prior to arresting her." Id. Likewise, in Hopkins v. Bonvicino, 573 F.3d 752, 767 (9th Cir. 2009), an eye-witness testified that Hopkins caused a minor automobile collision, his breath smelled of alcohol, he appeared intoxicated, and he ran into a nearby house. On that basis, the police entered Hopkins' house to arrest him. Id. Noting that the police failed to interview anyone else and did nothing to corroborate the witness' account, the Ninth Circuit concluded that the witness' "cursory and conclusory," statements "without further investigation by the police," were "insufficient to support probable cause." Id. However, corroborating evidence is not absolutely required in every instance. Probable cause may be based upon a victim's statement alone "if the victim provides facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and the named suspect was the perpetrator." Peng v. Mei Chin Penghu, 335 F.3d 970, 978 (9th Cir. 2003) (internal quotation omitted).

"As a corollary ... of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause." United States v. Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007) (internal quotation omitted); see also Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988) (holding that even though an initial report that a suspect had committed a kidnapping might have established probable cause, because the officer received exculpatory information before arresting the suspect, a reasonable officer would have investigated further before making the arrest); Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) ("An officer need not conduct a 'mini-trial' before making an arrest, but probable cause does not exist when 'minimal further investigation' would have exonerated the suspect.") (internal citations omitted); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) ("A police officer may not close her or his eyes to facts that would help clarify the circumstances of the arrest. Reasonable avenues of investigation must be pursued especially when ... it is unclear whether a crime had even taken place."). Yet, once probable cause is established, a law enforcement officer is not "required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." See Baker v. McCollan, 443 U.S. 137, 145-46 (1979) (discussing obligations of officers executing a valid arrest warrant).

Because Plaintiffs bear the ultimate burden of proving the absence of probable cause, Beck v. City of Upland, 527 F.3d 853, 864 (9th Cir. 2008), they must allege factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, see Iqbal, 556 U.S. at 678. While the FAC does allege that Plaintiffs were subjected to excessive force and that Michael Dillman was the victim of an unreasonable strip search, the FAC does not directly allege that Deputy Vasquez lacked probable cause to arrest Plaintiffs, nor does it directly assert that Deputy Vasquez performed an insufficient investigation. Rather, Plaintiffs argue in their opposition that a reasonable inference can be drawn from the alleged facts that Deputy Vasquez immediately arrested both Plaintiffs with no further investigation of the true ownership of the boat or of common practice among fishermen at Lake Donnell. Doc. 11-1 at 7.

Plaintiffs concede in the FAC that an employee of Tri-Dam called the Tuolumne County Sheriff's Department to report seeking two unidentified men placing a motor on an aluminum boat the employee claimed belonged to Tri-Dam and then taking that boat out onto the lake. FAC ¶ 12. The employee viewed this conduct on surveillance cameras at Lake Donnell. Id. After returning from fishing, Plaintiffs were met by Deputy Vasquez, who informed them they were under arrest for joyriding, trespass, and vandalism. FAC at ¶ 13. The conduct reported to Deputy Vasquez by the Tri-Dam employee conforms to the statutory definition of joyriding set forth in California Penal Code § 499b:

Any person who shall, without the permission of the owner thereof, take any vessel for the purpose of temporarily using or operating the same, is guilty of a misdemeanor.... Plaintiffs allege that it has been the longstanding practice of fishermen at Lake Donnell to leave aluminum boats moored at the lake for communal use:

For the last thirty (30) years Plaintiffs and other fisherman have left aluminum boats moored at Lake Donnell and the local practice has always been to pack in one's own motor and place it on an anticipated moored boat, and then commandeer the boat, fish, and then return the boat to the dock after fishing. In fact, in or around 2010 Plaintiff MICHAEL DILLMAN had purchased a 13' Valco aluminum boat identical to the boat that Plaintiffs used on September 18, 2011, and had left such boat at Lake Donnell for his own use and for use by other fishermen. Plaintiffs currently have two (2) aluminum boats moored at Lake Donnell.

FAC at ¶ 11. However, the Complaint fails to indicate that Plaintiffs informed Deputy Vasquez of this longstanding practice. Unless Deputy Vasquez was aware of this information, he cannot be faulted for failing to investigate the matter further.

The FAC also alleges that the boat Plaintiffs utilized bore no registration, insignia, or identification. Id. Viewing the facts in the FAC in a light most favorable to Plaintiffs, given the lack of registration or markings, it was not possible for Deputy Vasquez to confirm that someone other than Plaintiffs owned the boat, an element of joyriding.*fn2 A finder of fact might conclude that it was unreasonable for Deputy Vasquez to arrest Plaintiffs without first confirming Tri-Dam's ownership of the boat. See Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 671 (8th Cir. 2007) (finding probable cause where officer performed at least cursory investigation into ownership of allegedly stolen boat). Defendants' motion to dismiss any claim based upon arrest without probable cause is DENIED.

b.Failure to Cite and Release.

The FAC also alleges that Plaintiffs requested that Deputy Vasquez cite and release, rather than arrest, them. FAC ¶ 14. There is no authority to support a Section 1983 claim based upon this conduct. In California, it is within a law enforcement officer's discretion to determine whether to arrest an individual on a misdemeanor offense. See Peterson v. Union Pac. R. Co., 480 F. App'x 874, 875 (9th Cir. 2012) (explaining that California Penal Code § 853.6 allows an officer to "book the arrested person at the scene or at the arresting agency prior to release" on a misdemeanor charge); Washburn v. Fagan, 331 F. App'x 490, 492 n. 1 (9th Cir. 2009) (rejecting section 1983 challenge to reasonableness of arrest where officers declined to cite misdemeanor arrestee in the field and instead brought him to the station for booking, finding this conduct in conformity with California law).

Defendants' motion to dismiss any section 1983 claim based upon Deputy Vasquez's refusal to cite and release Plaintiffs is GRANTED WITHOUT LEAVE TO AMEND, as amendment would be futile.

c.Excessive/ Unreasonable Use of Force (Handcuffing).

Plaintiffs allege that Deputy Vasquez's "conduct in the handcuffing and transporting of Plaintiffs to the Tuolumne County Jail violated Plaintiffs' Constitutional rights under the Fourth Amendment to be free from excessive force." FAC ¶ 36. Claims of excessive force in the course of an arrest are analyzed under the Fourth Amendment and its "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness of the use of force "must be judged from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight." Id. at 396. When determining whether the totality of the circumstances justifies the degree of force, the court must consider "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. The inquiry is "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (citations omitted). Determining whether force is reasonable requires a "careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interest against the countervailing governmental interests." Id. at 396 (citation omitted).

(1)Stephen Dillman.

The FAC alleges that Deputy Vasquez applied handcuffs to Stephen Dillman before transporting him and his father to Tuolumne County Jail. FAC ¶ 13. The mere application of handcuffs during the course of an arrest does not, in and of itself, give rise to a section 1983 claim for excessive force. The right to make an arrest carries with it the right to use "some degree of physical coercion." Graham, 490 U.S. at 396. In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held that a motorist's Fourth Amendment rights were not violated when she was arrested, handcuffed, and transported to jail for failing to fasten her children in seat belts. While her arrest and subsequent booking were "inconvenient and embarrassing," they were not so extraordinary as to violate the Fourth Amendment. Id. at 355.*fn3

The FAC also alleges that Deputy Vasquez applied handcuffs to Stephen Dillman in a "tight and painful manner" before transporting him to Tuolumne County Jail. FAC ¶ 13. The FAC further indicates that Stephen Dillman "in no way consented to [his] arrest and subsequent painful handcuffing," FAC ¶ 39, and that Stephen Dillman "was harmed by Defendant Vasquez's conduct but did not seek medical attention," FAC ¶ 48. However, unlike his father, Stephen Dillman did not complain to Deputy Vasquez that his handcuffs were too tight.

The Ninth Circuit has held that excessively tight handcuffing can constitute a Fourth Amendment violation, but only where a plaintiff claims to have been demonstrably injured by the handcuffs or where complaints about the handcuffs being too tight were ignored. Compare Wall v. County of Orange, 364 F.3d 1107, 1109-12 (9th Cir. 2004) (arrestee suffered nerve damage as a result of continued restraint in tight handcuffs); LaLonde v. County of Riverside, 204 F.3d 947, 952, 960 (9th Cir. 2000) (arrestee complained to officer who refused to loosen handcuffs); Palmer v. Sanderson, 9 F.3d 1433, 1434-36 (9th Cir. 1993) (arrestee's wrists were discolored and officer ignored his complaint), with Hupp v. City of Walnut Creek, 389 F. Supp. 2d 1229, 1233 (N.D. Cal. 2005)(denying summary judgment in the absence of "evidence of a physical manifestation of injury or of a complaint about tight handcuffs that was ignored"); Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) (refusing to find a constitutional violation where officers immediately acted after arrestee complained that handcuffs were too tight).

Although at the pleading stage a plaintiff need only allege facts that would give rise to a reasonable inference that he is entitled to relief, the FAC alleges no specific facts concerning the nature of any injuries suffered by Stephen Dillman, nor does the FAC allege he complained about tight handcuffs and was ignored.

The FAC references Section 354.2 of the Tuolumne County Sheriff's Policy Manual, which sets forth a policy regarding handcuffing:

20. Plaintiffs are further informed, believe and thereon allege that at all times mentioned herein the Tuolumne County Sheriff's Department had in place ยงยง 354.2 and 354.2.1 of the Tuolumne County Sheriff's Policy Manual which outlines the ...

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