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Devermont v. City of San Diego

United States District Court, S.D. California

May 8, 2014



ROGER T. BENITEZ, District Judge.

Before this Court is a Motion for Summary Judgment filed on behalf of Defendants City of San Diego, Chief William Lansdowne, and Officer John Perdue. (Docket No. 42). Plaintiff has not filed any opposition. For the reasons stated below, this Motion is GRANTED in part, and the Court DISMISSES WITHOUT PREJUDICE the remainder of this action.


I. Alleged Misconduct

This matter involves accusations of police misconduct at a DUI checkpoint in downtown San Diego, California. Shortly after midnight on July 2, 2011, Plaintiff Sennett Devermont arrived at a checkpoint intended to identify individuals who are driving under the influence (DUI). (Devermont Dep., Def. Ex. A, at 29:11-12).[1] At the checkpoint, Plaintiff was approached by Officer John Perdue. (Compl. ¶ 8; Perdue Decl., Def. Ex. B, ¶ 5). Perdue has been employed by the San Diego Police Department since October 2008. (Perdue Decl. ¶ 1). He received training in the signs and symptoms of persons under the influence of alcohol and drugs at the police academy, as well as at subsequent classes. ( Id. ¶ 2). He has been recognized for making at least 40 DUI arrests, and estimates that he had completed more than 100 evaluations as of the date of the incident. ( Id. ¶¶ 2, 7).

Perdue allegedly asked for, and received, Plaintiff's driver's license. (Compl. ¶ 8). Perdue asserts that he "smelled a faint odor of alcohol coming from [Plaintiff] or the vehicle area." (Perdue Decl. ¶ 5). Plaintiff refused to answer further questions. (Compl. ¶¶ 8, 9; Perdue Decl. ¶¶ 6, 8). Officer Perdue declares that he observed that Plaintiff's eyes were red and bloodshot. (Perdue Decl. ¶ 6). Perdue ordered Plaintiff to step out of his car, and Plaintiff complied. (Compl. ¶ 8; Perdue Decl. ¶ 9).

Perdue and other officers sought to conduct field sobriety tests (FSTs). (Compl. ¶¶ 8, 9; Perdue Decl. ¶ 10; Devermont Dep. at 60:18-61:12). Plaintiff refused to perform these tests. (Compl. ¶¶ 8, 9; Perdue Decl. ¶ 10; Devermont Dep. at 61:25-62:9).

At some point during the encounter, Plaintiff was placed in handcuffs for approximately twenty to thirty minutes. (Devermont Dep. at 70:22-23). Plaintiff alleges that he had to sit on the curb, in view of passing traffic, but no evidence of this has been presented to the Court. (Compl. ¶¶ 9, 10). Plaintiff did not complain of any discomfort from the handcuffs to the officers. (Devermont Dep. at 70:24-71:7). Plaintiff also alleges that during his detention, Officer Prokop entered Plaintiff's car without permission, searched the interior, and looked through Plaintiff's wallet. (Compl. ¶ 10). No evidence of this has been presented to the Court.

Perdue spoke to his sergeant, and Plaintiff was informed that because the officer believed he consumed alcohol, that he was required to undergo either a Breathalyzer test or a blood draw. (Perdue Decl. ¶ 13). Plaintiff cooperated with the Breathalyzer, which revealed that his blood alcohol content of 0.00%. (Compl. ¶ 11, Perdue Decl. ¶ 14). Plaintiff was then released. (Perdue Decl. ¶ 15).

Plaintiff alleges that an administrative investigation of Prokop and Perdue took place, but that they were exonerated from wrongdoing. (Compl. ¶ 13).

Plaintiff is the owner of two business intended to publicize police activity. One business publicizes the locations of DUI checkpoints, and the second publicizes "speed traps." (Devermont Dep. at 15:20-16:6; 79:9-16; 92:2-20). Plaintiff has also used signs to warn drivers of checkpoints. ( Id. at 106:19-25). On the date of this incident, Plaintiff recorded his encounter and later posted it on the website You Tube. ( See id. at 37:16-38:15, Compl. ¶ 12). Plaintiff positioned a cell phone in the passenger door because he knew where the DUI checkpoint was located. (Devermont Dep. at 37:16-38:18). If true, Plaintiff has not submitted the video recording as evidence.

II. Procedural History

On July 24, 2012, Plaintiff filed a complaint alleging violations of his civil rights pursuant to state and federal law. Plaintiff listed nine causes of action: (1) violation of 42 U.S.C. § 1983 by individual defendants, (2) violation of 42 U.S.C. § 1983 by the City of San Diego and Defendant "Emerson, " (3) assault and battery, (4) false arrest, (5) civil conspiracy, (6) intentional infliction of emotional distress, (7) negligence, (8) negligent employment/retention/supervision, and (9) violations of the California Civil Rights Act.

Defendants filed the instant Motion for Summary Judgment as to all causes of action on March 12, 2014. The matter was set for a hearing before this Court on May 12, 2014. Pursuant to the Civil Local Rules of the Southern District of California, Plaintiff was required to file a written statement of opposition or non-opposition no later than April 28, 2014. CIV. L.R. 7.1(e)(2). Despite receiving notice in excess of the 28-day minimum required by Local Rule 7.1(e)(1), Plaintiff did not file a statement of opposition or request an extension of time to respond. The Court notes that ...

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