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Hupp v. San Diego County

United States District Court, S.D. California

January 30, 2014

PAUL HUPP, Plaintiff,


GONZALO P. CURIEL, District Judge.

Pending before the Court is Defendant County of San Diego and Defendant Peter Myers' (collectively, "Defendants") Motion for Summary Judgment ("MSJ"). (Dkt. No. 161.) Plaintiff has filed an opposition to Defendants' MSJ, (Dkt. No. 171), and Defendant has filed a reply and related request for judicial notice, (Dkt. No. 201). In addition, Plaintiff has filed a Motion to Strike Defendants' Reply and Request for Judicial Notice. (Dkt. No. 202). The Court finds the motions suitable for disposition without oral argument. See Civ.L.R 7.1.d.1. Having considered the parties' submissions and the applicable law, and for the reasons that follow, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's allegations against Defendant Peter Myers ("Defendant Myers") and the County of San Diego, and DENIES Plaintiff's Motion to Strike.


I. Factual Background

This action stems from a lengthy history of state civil and criminal court proceedings against Plaintiff as well as Plaintiff's subsequent detention in San Diego County jail. The present motion concerns the liability of San Diego Sheriff's Department Deputy Peter Myers and the County of San Diego for alleged violations of Plaintiff's civil and constitutional rights.

Plaintiff alleges the San Diego County Office of Assigned Counsel ("OAC") assigned attorney William Kiernan ("Kiernan") to represent Plaintiff in contempt of court proceedings in July, 2011. (Dkt. No. 64, "TAC" ¶¶ 27-28.) Plaintiff alleges Kiernan ineffectively represented Plaintiff during the proceedings. Specifically, Plaintiff alleges the following representational deficiencies: (1) failure to perform independent fact investigation; (2) failure to file informal or formal written discovery requests; (3) failure to request a witness list; (4) failure to communicate with Plaintiff regarding trial strategy; (5) failure to address material issues; (6) failure to utilize Plaintiff's cross examination questions; (7) failure to investigate potential defenses; (8) failure to respond to Plaintiff's communications; and (9) ineffective and prejudicial advocacy in closing arguments. (TAC ¶¶ 28-29.) Plaintiff seeks to hold the County of San Diego liable for Kiernan's ineffective assistance due to the County OAC's hiring and assignment of Kiernan to represent Plaintiff.[1] (Dkt. No. 171, "Pl. Opp." at 16.)

On November 16, 2011, San Diego Superior Court Judge John Meyer found Plaintiff guilty beyond a reasonable doubt of five acts of contempt of court and sentenced him to 25 days in custody and a $5, 000 fine. (TAC at ¶ 32.) Plaintiff served his sentence during the month of January, 2012. (TAC at ¶ 41.) Plaintiff alleges that while he was in San Diego County Sheriff's Department ("SDSD") custody, SDSD interfered with his access to the courts. (TAC ¶ 42-43.) In particular, Plaintiff alleges Deputy Peter Myers destroyed and tossed in the garbage a legal document prepared by Plaintiff on January 5, 2012, while stating "this is what I [MYERS] think of your legal papers'." (TAC ¶ 42.) In addition, Plaintiff alleges his numerous requests to access the law library while in custody were denied until his last week of detention. (TAC ¶ 43.) Plaintiff alleges the law library he eventually obtained access to had the following deficiencies: (1) lacked books; (2) lacked electronic documents pertaining to state criminal matters; (3) lacked access to California court websites; (4) lacked printers; (5) lacked employees or supervisors to assist inmates. (TAC ¶ 43.)

II. Procedural History

Plaintiff, proceeding pro se, commenced this action on February 28, 2012 against various public entities and private individuals. (Dkt. No. 1 at 1.) Plaintiff alleges violations of his constitutional and civil rights under 42 U.S.C. § 1983 related to the aforementioned civil contempt proceeding and subsequent detention. (TAC at ¶¶ 47-141.) On July 9, 2012, Plaintiff filed a Second Amended Complaint and subsequently, on July 26, 2012, Plaintiff filed a motion for leave to file a third amended complaint. (Dkt. No. 55.) The Court granted Plaintiff's motion and on August 28, 2012, Plaintiff filed a third amended complaint ("TAC"). (Dkt. No. 64.) The TAC names Defendants San Diego County[2], City of San Diego[3], James Patrick Romo, Raymond Wetzel, William J. Kiernan, Peter Myers, Joseph Cargel, and Roes1-10. (TAC at ¶¶ 2-15.)

On September 5, 2012, Plaintiff filed a motion for leave to file a Fourth Amended Complaint. (Dkt. No. 66.) On September 26, 2012, the Court denied the motion without prejudice and directed Plaintiff to serve upon counsel for Defendants a proposed amended complaint and to obtain a hearing date on a motion for leave to amend. (Dkt. No. 84.) On October 22, 2012, this case was transferred to the undersigned judge. (Dkt. No. 94.) Plaintiff filed two motions for an extension of time to file a fourth amended complaint. (Dkt. Nos. 93, 98.) On November 19, 2012, the Court granted Plaintiff's motion for extension of time to file a fourth amended complaint and denied as moot Defendants' motions to dismiss. (Dkt. No. 101.) Following Plaintiff's third motion for extension of time to file a fourth amended complaint, the Court denied the motion and ordered Plaintiff to file a fourth amended complaint within five days of the order being electronically docketed. (Dkt. No. 111.) Plaintiff failed to file a fourth amended complaint. The TAC is now the operative pleading in this matter.

In the TAC, Plaintiff alleges the following causes of action: (1) withholding of "Brady" evidence; (2) conspiracy to withhold "Brady" evidence; (3) interference with legal mail; (4) unlawful detention; (5) intentional infliction of emotional distress; (6) gross negligence in the hiring of deputy district attorneys and peace officers; (7) gross negligence in the training of deputy district attorneys and peace officers; (8) gross negligence in the supervision of deputy district attorneys and peace officers; (9) gross negligence in the retention of deputy district attorneys and peace officers; (10) declaratory and injunctive relief as to the Defendant Kiernan's ineffective assistance as counsel; (11) declaratory and injunctive relief against San Diego Sheriff's Department; (12) interference with free speech, right to petition government and legal proceedings due to wrongful search and seizure. (TAC at ¶¶ 47-141.)

On September 27, 2013, Defendants County of San Diego ("Defendant County") and Peter Myers filed the present motion for summary judgment. (Dkt. No. 161.) Defendants concurrently filed three declarations and corresponding exhibits in support of the motion, by Claims Representative Louise Edler, (Dkt. No. 161-2), Sergeant Esther Quiñonez, (Dkt. No. 161-3), and County Counsel Christopher Welsh, (Dkt. No. 161-4). Plaintiff responded on October 9, 2013, submitting a memorandum of points and authorities, a brief declaration, and five exhibits opposing Defendants' motion. (Dkt. No. 171.) Defendants filed a reply and request for judicial notice on November 18, 2013. (Dkt. No. 201.)

On December 2, 2013, Plaintiff filed a motion to strike Defendants' reply brief and request for judicial notice. (Dkt. No. 202.) The motion was fully briefed. (Dkt. Nos. 216, 219.)


I. Defendants' Request for Judicial Notice and Plaintiff's Motion to Strike

Defendants seek judicial notice of three documents: (1) the United States District Court, District of Arizona opinion in Villescaz v. City of Eloy, No. CV-06-2686-PHX-FJM, 2008 U.S. Dist. LEXIS 38684 (May 1, 2008); (2) Document 16 in Case Number 11cv02909 filed with the United States District Court, Southern District of California on January 26, 2012; (3) the Civil Docket in the same case, 11cv02909. (Dkt. No. 201-1, "Request for Judicial Notice" at 2.)

Under Federal Rule of Evidence 201(b), a district court may take notice of facts not subject to reasonable dispute that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); see also Lee v. City of Los Angeles , 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed matters of public record), overruled on other grounds by Galbraith v. County of Santa Clara , 307 F.3d 1119, 1125-26 (9th Cir. 2002). As the documents Defendants seek judicial notice of are a federal district court opinion, a document filed with this court, and a civil docket of this court, the Court finds the exhibits properly subject to judicial notice.

Plaintiff objects to Defendants' request for judicial notice and moves to strike Defendants' reply brief in its entirety on the ground that reply briefs should be limited to the arguments made in the non-moving party's opposition. (Dkt. No. 202-1, "Motion to Strike" at 2.) Plaintiff's motion to strike further argues the merits of his claims, responding substantively to Defendants' reply brief.[4] (Dkt. No. 202-1 at 3-7.) Plaintiff concludes the motion to strike reiterating previously raised arguments that he lacks evidence to support his opposition to Defendants' MSJ because Defendants have not produced sufficient discovery. (Dkt. No. 202-1 at 7-8); (see also Dkt. Nos. 148, 220) (denying Plaintiff's requests for extensions of time to respond due to lack of discovery). The Court addresses Plaintiff's arguments regarding the proper scope of reply briefs and opportunity for discovery in turn.

A. Scope of Reply Briefs

Defendants' reply brief filed in support of summary judgment raises new legal arguments, (Dkt. No. 201 at 3-5) (arguing Plaintiff lacks standing to bring Cause of Action III against Defendants), and seeks to introduce new evidence via a request for judicial notice, (Dkt. No. 201-1). Plaintiff objects that reply briefs should "address only the issues or facts raised in the non-moving party's opposition papers and restate why the Court should grant their motion." (Dkt. No. 202-1 at 2.); see also (Dkt. No. 219 at 2-3) (citing Rutter's Practice Guide, Federal Civil Procedure Before Trial (National Edition), § 12.107 (2009), and Lujan v. National Wildlife Federation , 497 U.S. 871 (1990)). Plaintiff further states that Defendants err by citing Glenn K. Jackson, Inc. v. Roe , 273 F.3d 1192, 1202 (9th Cir. 2001), for the proposition that new arguments may ...

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