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Said v. County of San Diego

United States District Court, S.D. California

April 9, 2015

MOHAMAD ALI SAID, Plaintiff,
v.
COUNTY OF SAN DIEGO, DEPUTY SHERIFF PATRICK LOPATOWKY, DEPUTY SHERIFF BRIAN BUTCHER, DEPUTY SHERIFF LEE SCOTT, and DOES 1-50, INCLUSIVE, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [Dkt. No. 52.]

GONZALO P. CURIEL, District Judge.

Before the Court is Defendants County of San Diego, Patrick Lopatosky and Brian Butcher's motion for partial summary judgment filed on February 23, 2015. (Dkt. Nos. 52, 55[1].) Plaintiff Mohamad Said filed an amended opposition on March 23, 2015. (Dkt. No. 55.) A reply was filed on April 1, 2015. (Dkt. No. 63.) After a review of the briefs, supporting documentation, and the applicable law, the Court GRANTS in part and DENIES in part Defendants' motion for partial summary judgment.

Procedural Background

On October 9, 2012, Plaintiff filed a 42 U.S.C. § 1983 civil rights complaint against County of San Diego ("County"), Deputy Sheriff Patrick Lopatowsky ("Lopatowsky"), Deputy Sheriff Brian Butcher ("Butcher"), and Deputy Sheriff Scott Lee (erroneously named as Lee Scott). (Dkt. No. 1.) On May 15, 2013, the Court granted Defendants' motion to dismiss the complaint with leave to amend. (Dkt. No. 16.) On June 12, 2013, Plaintiff filed a first amended complaint. (Dkt. No. 17.) On October 30, 2013, the Court granted Defendants' motion to dismiss the first amended complaint with one final opportunity to amend. (Dkt. No. 22.) On November 19, 2013, Plaintiff filed a second amended complaint ("SAC"). (Dkt. No. 23.) On January 21, 2014, the Court granted in part and denied in part Defendants' motion to dismiss. (Dkt. No. 31.) Specifically, the Court granted Defendants' motion to dismiss the cause of action for equal protection and all causes of action against Defendant Scott Lee, and the Court denied Defendants' motion to dismiss the causes of action for excessive force, false arrest, denial of medical attention, malicious prosecution, § 1983 cause of action against the County of San Diego and all state law causes of action.[2] (Id.)

Defendants now seek partial summary judgment on the causes of action against the County of San Diego for violation of 42 U.S.C. § 1983 and against Defendants Lopatowsky and Butcher for unlawful arrest, inadequate medical care, and malicious prosecution under § 1983 and state law claims for false arrest and violation of California Civil Code section 52.1.

Factual Background

On June 16, 2009, a domestic violence misdemeanor complaint for the use of force and violence and the infliction of injury on his spouse, Walla Said, aka Walaa Alqershi ("Alqershi") was filed against Plaintiff in the Superior Court of California, County of San Diego, East County Division. (Dkt. No. 57, Ds' NOL, Ex. 1.) The complaint alleged three counts consisting of: 1) corporal injury to spouse and/or roommate in violation of California Penal Code ("Penal Code") section 17(b)(4); 2) battery of a current or former significant other in violation of Penal Code section 243(e)(1); and 3) battery in violation of Penal Code section 242. (Id.) A criminal protective order against Plaintiff in favor of Alqershi as the protected person was issued on July 13, 2009. ( Id., Ex. 2.) On March 24, 2010, a jury found Plaintiff guilty of the crime of battery of a significant other in violation of Penal Code section 243(e)(1), and simple battery in violation of Penal Code section 242. ( Id., Ex. 4.) On May 24, 2010, Plaintiff was sentenced to, among other things, three years of summary probation, a condition of which was compliance with a criminal protective order that prohibited Plaintiff from having any personal, electronic, telephonic, or written contact with Alqershi or from coming within 100 yards of her. ( Id., Exs. 4, 5.) The protective order was to expire on May 23, 2013. ( Id., Ex. 5.)

Plaintiff was informed of the meaning of the protective order at his sentencing hearing. (Dkt. No. 52-4, Karnavas Decl., Ex. 7 (CD audio recording of Plaintiff's sentencing on 5/24/10.)) The sentencing judge explained to Plaintiff that under the protective order, even if Alqershi called him, he must hang up the phone and walk away. (Id.) At his deposition, Plaintiff admitted that he understood his sentence and that he was subject to a full protective order and was to stay away from Alqershi. (Dkt. No. 52-4, Karnavas Decl., Ex 4, Said Depo. at 144:12-17; 146:21-24; 170:8-10; 176:22-177:4; 177:24-178:24; 180:10-14; 185:2-7.) He was also aware that only the Court could rescind the protective order and that neither he nor Alqershi could do it on their own. (Id. at 185:2-7.) Plaintiff had an Arabic interpreter at his trial and sentencing. (Id. at 144:12-17.) Subsequently, Alqershi returned to Plaintiff and became pregnant with Plaintiff's second child, a daughter, to whom she gave birth in October 2011. (Id. at 222:2-24.)

On January 24, 2012, at approximately 5:51 p.m., the Sheriff's Department communications center received a 911 call from a woman identifying herself as Walaa Alqershi. (Dkt. No. 52-7, Harb Decl., Ex. A, 911 CD audio recording.) She stated that she was in the house with Plaintiff and lives with him. (Id.) She was fearful because he threatened to kill her if she called the cops, and then kill himself. (Id.) Alqershi explained that she had a restraining order against her husband, but was living with him and that he was driving her crazy, and she was afraid he was going to kill her. (Id.) She also said she just recently came back from a mental institution and it was her fault that she went back with him. (Id.) Alqershi requested law enforcement assistance and while on the phone, she indicated she was leaving her house located at 3755 El Canto Dr. and was walking to her neighbor's house located at 3725 El Canto Dr. (Id.)

On the evening of January 24, 2012, Butcher and Lopatosky received a radio call to respond to 3755 El Canto Dr., Spring Valley, California to contact an individual who may have been "5150", in other words, a person who, as a result of a mental health disorder, is a danger to others, or to himself or herself, or is gravely disabled. (Dkt. No. 52-5, Butcher Decl. ¶ 2; Dkt. No. 52-6, Lopatosky Decl. ¶ 2.) At some point, the contact address was changed to 3725 El Canto Dr. which is a house a couple of houses down from the original address. (Dkt. No. 52-5, Butcher Decl. ¶ 2; Dkt. No. 52-6, Lopatosky Decl. ¶ 2.) Psychiatric Emergency Response Team ("PERT") clinician, Cynthia Van Lom ("Van Lom"), was assigned to work with Butcher and was riding with him in his patrol vehicle. (Dkt. No. 52-5, Butcher Decl. ¶ 2.) Butcher and Van Lom arrived first at 3725 El Canto Dr. and made contact with Alqershi. (Id.) They determined that Alqershi was not "5150" but was upset with her husband. (Id.) Butcher was aware that Alqershi and her husband had a history of domestic violence because he had arrested Plaintiff for spousal abuse in violation of Penal Code section 273.5(a) back in April 2009. (Id.) Alqershi told Butcher and Van Lom that she and Plaintiff had been living together, and that on that evening, Plaintiff had threatened to kill her and any cops that showed up if she called the cops. (Id. ¶ 3.) Alqershi wanted Plaintiff arrested. (Id.) Lopatosky arrived at the scene shortly after Butcher and Van Lom. (Id. ¶ 4.) Butcher told him that he had spoken with Alqershi, and that he believed this was a violation of a restraining order call. (Dkt. No. 52-5, Butcher Decl. ¶ 4; Dkt. No. 52-6, Lopatosky Decl. ¶ 2.) Lopatosky took over as the primary deputy on the scene and also spoke directly to Alqershi. (Dkt. No. 52-5, Butcher Decl. ¶ 4; Dkt. No. 52-6, Lopatosky Decl. ¶ 2-3.) Alqershi told Lopatosky that she and Plaintiff had been married for about 5 years, that they currently live together, and have two children together, a four year old and a 3 month old. (Dkt. No. 52-6, Lopatosky Decl. ¶ 2-3.) Alqershi indicated that she had been the victim of domestic violence by her husband about a year and a half earlier, and that as a result of that incident, a restraining order was issued against him, that he had been served with the order, and that he was not to be within 100 yards of her. (Dkt. No. 52-6, Lopatosky Decl. ¶ 3.) Alqershi indicated that she had stayed at a shelter called Becky's House after the domestic violence incident but that after her stay at Becky's House, Plaintiff picked her up and they had been living together ever since, even though the restraining order was still in place. (Id.) Alqershi told Lopatosky that on that evening, her husband had threatened to kill her, kill any responding law enforcement, and then kill himself, but that he had not done anything to her physically. (Id.) Alqershi wanted Plaintiff arrested. (Id.) Lopatosky also confirmed that while Alqershi appeared upset by the circumstances with her husband, she did not appear to be suffering from any type of mental health disorder. (Id.)

Butcher conducted a records check through the Sheriff's inquiry channel, and the records check revealed there was an active domestic violence criminal protective order issued in case number C291668, listing Plaintiff as the restrained person, and Alqershi as the protected person. (Dkt. No. 52-5, Butcher Decl. ¶ 5.) The protective order was set to expire on May 23, 2013, and the terms of the order prohibited Plaintiff from having any contact with Alqershi. (Id.)

Lopatosky and Butcher went to contact Plaintiff at 3755 El Canto Dr. (Dkt. No. 52-5, Butcher Decl. ¶ 6; Dkt. No. 52-6, Lopatosky Decl. ¶ 5.) Plaintiff was handcuffed and thereafter complained of injury to his arm. (Dkt. No. 52-5, Butcher Decl. ¶ 6; Dkt. No. 52-6, Lopatosky Decl. ¶ 5.) Deputy Butcher immediately summoned the Fire Department for paramedic assistance. (Dkt. No. 52-5, Butcher Decl. ¶ 6; Dkt. No. 52-6, Lopatosky Decl. ¶ 5.) The paramedics arrived approximately five minutes later and Plaintiff was taken to the hospital for evaluation. (Dkt. No. 52-5, Butcher Decl. ¶ 6; Dkt. No. 52-6, Lopatosky Decl. ¶ 5.)

In his declaration, Plaintiff states that his ex-wife Alqershi was alcohol and drug dependent and she became uncontrollable and started running away from home. (Dkt. No. 60-3, Said Decl. ¶ 3.) He alleges she fabricated stories against him in order to show Plaintiff was a villain. (Id. ¶ 5.) Plaintiff also states that he was never served with a copy of the protective order and that he did not respond to the judge's question asking whether he understood the order. (Id. ¶ 6.) In fact, Plaintiff claims he asked for an explanation but the judge stated that someone else will explain; however, Plaintiff was never contacted. (Id.) He also states that Alqershi did not live at the house and she was there for a few minutes because he did not allow her to be near the children because child protective services did not want her near the children. (Id. ¶ 8.) Plaintiff states that he never threatened his ex-wife or the officers. (Id. ¶ 9.)

Discussion

A. Legal Standard on Motion for Summary Judgment

Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file' designate specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court must "view[] the evidence in the light most favorable to the nonmoving party." Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.

B. § 1983 Monell Claim as to County of San Diego

Defendant County of San Diego argues that Plaintiff makes numerous allegations of unlawful policies, customs and habits but has provided no evidentiary facts to support the elements of a Monell[3] claim. Plaintiff opposes.

Cities, counties and other local government entities are subject to claims under 42 U.S.C. § 1983. Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978). While municipalities, their agencies and their supervisory personnel cannot be held liable under § 1983 on any theory of respondeat superior or vicarious liability, they can, however, be held liable for deprivations of constitutional rights resulting from their formal policies or customs. Monell, 436 U.S. at 691-693. Plaintiffs must establish that "the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation [they] suffered." AE ex rel. Hernandez v. Count of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citing Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)).

The elements of a Monell claim are (1) plaintiff was deprived of a constitutional right; (2) the municipality has a policy; (3) the policy amounts to deliberate indifference to plaintiff's constitutional right; and (4) the policy is the moving force behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)).

A public entity and supervisory officials may be held liable when "implementation of... official policies or established customs inflicts the constitutional injury" or when a failure to act amounts to "deliberate indifference to a constitutional right" or when "an official with final policy-making authority...ratifies a subordinate's unconstitutional ...


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