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Lowry v. City of San Diego

United States District Court, Ninth Circuit

May 31, 2013

SARA LOWRY, Plaintiff,


MICHAEL M. ANELLO, District Judge.

Plaintiff Sara Lowry ("Plaintiff") brings this civil rights action against Defendant City of San Diego (the "City"), seeking to hold the municipality liable for promulgating a "bite and hold" dog apprehension policy that violated her Fourth Amendment rights. The City moves for summary judgment in its favor as to Lowry's single claim under Monell v. New York Dep't of Soc. Services, 436 U.S. 658 (1978). See Doc. No. 50. With leave of court, Plaintiff filed an untimely opposition to the motion, to which the City replied. See Doc. Nos. 57, 62. For the reasons set forth below, the Court GRANTS the City's motion.


This action arises out of events occurring on a Thursday night in the Pacific Beach neighborhood of San Diego.[1] Plaintiff Sara Lowry worked for Tenzing Corporation ("Tenzing"), located at 4603 Mission Boulevard, Suite 201. On the evening in question, Plaintiff visited two local bars after work with friends. [Lowry Dep. 3:20-5:10, Doc. No. 50-3.] Plaintiff consumed five vodka drinks between 6:00 p.m. and 9:30 p.m. [ Id. ] Plaintiff then returned to the Tenzing office to retrieve her leftovers from lunch; however, upon arrival, she decided to stay and sleep on the office couch. [ Id. at 6:11-23; 7:8-11; 8:10-19.] Plaintiff awoke needing to use the bathroom. [ Id. at 9:3-9.] During business hours, Plaintiff used an interior bathroom in the adjoining office, Suite 200, occupied by Drew George & Partners (DGP). [ Id. at 10:22-25; 11:8; 12:3-7.] Plaintiff unlocked the adjoining interior door to DGP, setting off DGP's alarm system.[2] [ Id. at 9:6-9; Kreber Decl. ¶ 2, Doc. No. 50-27.] Realizing "it wouldn't be right for [her] to use [the interior bathroom] at night, " she immediately closed the door and used an exterior public bathroom instead. [Lowry Dep. 10:23-24; 12:8-16.] Plaintiff then went back inside Tenzing and fell asleep. [ Id. at 9:8-9.] Both suites and the public bathroom are on the second floor; a balcony is used to move from one door to the next. [ Id. at 24:12-16; Nulton Decl. ¶ 5, Doc. No. 50-19.]

Shortly before 11:00 p.m., the San Diego Police Department (SDPD) received notification from ADP Security Services that a burglar alarm had activated at 4603 Mission Boulevard, Suite 200. [Kreber Decl. ¶¶ 1-2.] SDPD Officers Bill Nulton ("Sergeant Nulton"), Mike Fish and David Zelenka, along with a police canine, arrived to the scene within minutes. [Fish Decl. ¶¶ 2-3, Doc. No. 50-23; Nulton Decl. ¶¶ 2-3; Zelenka Decl. ¶¶ 2-3, Doc. No. 50-15.] The officers did not see anyone leaving the site as they approached. [Nulton Decl. ¶ 8.] The officers checked the north, south, and west sides of the building and did not see any broken windows or other points of entry into the building. [Nulton Decl. ¶ 3; Zelenka Decl. ¶ 3.] On the east side of the building, however, the officers noticed that the door to Tenzing (Suite 201) was open, [3] providing the only entry point into the building. [Fish Decl. ¶ 4; Nulton Decl. ¶¶ 5-6; Zelenka Decl. ¶ 4.] To reach the second story, Officer Fish scaled a locked exterior gate, which he then opened to allow Nulton, Zelenka, and the canine to enter. [Fish Decl. ¶ 4; Zelenka Decl. ¶ 4.]

The officers could not see into the interior of Tenzing because it was completely dark but for the ambient light shining through from the parking lot.[4] [Fish Decl. ¶ 6; Nulton Decl. ¶ 6; Zelenka Decl. ¶ 6.] The officers could not see any movement inside Tenzing. [Fish Decl. ¶ 4; Nulton Decl. ¶ 4; Zelenka Decl. ¶ 4.] Because the lights were out and the door propped open, the officers suspected that whoever tripped the alarm was inside the building lying in wait or unsure of what to do next.[5] [Fish Decl. ¶ 8; Nulton Decl. ¶ 8; Zelenka Decl. ¶ 8.] The door to DGP (Suite 200) was closed and locked and the office was dark. [Nulton Decl. ¶ 5.] Sergeant Nulton saw a sign posted on Tenzing's door instructing that all deliveries were to be made to Suite 200.[6] [Nulton Decl. ¶ 6.] This led Sergeant Nulton to believe that Suites 200 and 201 were connected or part of the same business. [ Id. ]

The officers believed that whoever triggered the burglar alarm was still inside the building because the officers arrived on scene so quickly and they did not see anyone leaving the site as they arrived. [ Id. ¶ 8.] The officers did not know whether whoever was inside the building was armed. [Fish Decl. ¶ 9; Nulton Decl. ¶ 9; Zelenka Decl. ¶ 9.] At Tenzing's front door, Sergeant Nulton, the canine handler, loudly yelled: "This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!"[7] [Fish Decl. ¶ 7; Nulton Decl. ¶ 7; Zelenka Decl. ¶ 7.] Sergeant Nulton repeated the warning two or three times, waiting between warnings to give any occupants an opportunity to come out. [ Id. ] He received no response. [ Id. ] Because no one responded, the officers believed that whoever triggered the alarm ran away, was hiding, or was under duress. [Fish Decl. ¶ 9; Nulton Decl. ¶ 9; Zelenka Decl. ¶ 9.]

Thereafter, Sergeant Nulton released the police canine to clear the suite. [Fish Decl. ¶ 11; Nulton Decl. ¶ 11; Zelenka Decl. ¶ 11.] As he followed closely behind the dog, Sergeant Nulton used his flashlight to sweep the area. [Nulton Decl. ¶ 12.] He spotted a purse with the contents strewn across an office floor. [ Id. ] He then shined his flashlight against one of the office walls where he saw a lump on a sofa. [ Id. ] He could not tell what gender the person was or whether he or she was armed. [ Id. ] The instant he saw the lump, he saw the canine jump into the flashlight beam and onto the lump. [ Id. ] He immediately called the dog off. [ Id. ] In the process, the dog scratched or bit Plaintiff's upper lip. [Lowry Dep. 43:24-44:24.] The entire encounter was "very quick." [ Id. at 37:21.] Officer Fish confirmed that Plaintiff worked at Tenzing, and then transported her to the hospital where doctors gave her three stitches. [Fish Decl. ¶ 13; Lowry Dep. 22:20.]


Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hubbard v. 7-Eleven, 433 F.Supp.2d 1134, 1139 (S.D. Cal. 2006), citing former Fed.R.Civ.P. 56(c)(2). "The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party meets its initial burden, ... the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks and citations omitted).

A mere scintilla of evidence is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some significant probative evidence tending to support the complaint.'" Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997), quoting Anderson, 477 U.S. at 249, 252. Thus, in opposing a summary judgment motion, it is not enough to simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). However, when assessing the record to determine whether there is a "genuine issue for trial, " the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in his favor." Horphag, 475 F.3d at 1035 (citation omitted). On summary judgment, the Court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed by the Supreme Court, the ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.


Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983.

A local governmental entity "may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. New York Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In order to establish liability for governmental entities under Monell, a plaintiff must prove: (1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is the moving force behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). A single occurrence of unconstitutional action by a non-policymaking employee is insufficient to establish the existence of an actionable municipal policy or custom. See Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989). "Only if a plaintiff shows that his injury resulted from a permanent and well settled practice may liability attach for injury resulting from a local government custom." Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989) (quotations ...

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