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Weldon v. Conlee

United States District Court, E.D. California

April 21, 2015

PAUL WELDON, Plaintiff,


LAWRENCE J. O'NEILL, District Judge.

Before the Court in the above-styled and numbered cause of action are "Defendants Robert Kodman and Marty Kodman, Individually and DBA Econo Towing, Econo Towing and Beryle Dodson's Motion for Summary Judgment, " filed February 18, 2015 (Doc. 96), Defendant John Conlee's Motion for Summary Judgment, filed February 18, 2015 (Doc. 97), and Plaintiff Paul Weldon's Motion for Summary Judgment, filed on April 9, 2015 (Doc. 139). The Court concludes that the matters are appropriate for determination without oral argument. See Local Rule 230(g). The Court, having considered the record in this case, the parties' briefing, and the relevant law, will grant Defendants' motions for summary judgment, deny Plaintiff's motion for summary judgment, and will dismiss as moot Plaintiff's pending motions to stay and for reconsideration.


Plaintiff Paul Weldon's ("Plaintiff" or "Weldon") claims arise from an incident during a traffic stop on April 18, 2011. Weldon alleges that he was driving a van when he was pulled over by Defendant City of Fresno Police Officer John Conlee ("Conlee"), who, according to Weldon, was impersonating a police officer. During the traffic stop, Weldon alleges that Conlee was rude to him, ordered him out of the van, and assaulted him by twisting his arms behind his back to handcuff him. Weldon also alleges that, although the van was properly registered, Conlee ripped the registration tab off of the license plate and called Econo Towing Company and its employee tow-truck driver ("the Towing Defendants") to tow the car. The Court has construed Weldon's Fourth Amended Complaint as asserting claims under Section 1983 for unreasonable search and seizure in violation of the Fourth Amendment, the use of excessive force in violation of the Fourth Amendment, a due process claim in violation of the Fifth and Fourteenth Amendments, and state law claims for conversion and assault and battery.

A. Defendants' Facts

Officer Conlee's Account

On April 18, 2011, Officer Conlee was on duty, in uniform, and operating a marked police vehicle in the area of Parkway and Belmont avenues in Fresno, California. See City Defendants' Separate Statement of Undisputed Material Facts ("SSUMF, " Doc. 97-6), ¶ 7. Conlee observed Plaintiff's vehicle driving at what he estimated was a speed of 55 miles per hour in a 40 mile-per-hour speed zone. SSUMF ¶ 8. Conlee used a hand-held radar device which clocked Plaintiff's speed at 58 miles per hour. Id. ¶ 9. Conlee initiated a vehicle stop for the purpose of issuing a traffic citation for Plaintiff's speeding, a violation of California Vehicle Code section 22350 (speeding). Id. ¶ 10. Plaintiff pulled into the private property of an Econo Lodge parking lot at 445 N Parkway Drive. Id. ¶ 11. When approached by Officer Conlee, Plaintiff identified himself as "Doug Weldon" and stated he did not have identification on him. Id. ¶ 12. Conlee ran Plaintiff's name through the Record Management System and was unable to locate a driver's license or identification information for the name, "Doug Weldon." Conlee concluded that Plaintiff was driving without a license in violation of Vehicle Code section 12500(a), and for all of these reasons placed Plaintiff under arrest. Id. ¶ 13.

While conducting a search incident to arrest, Conlee located a wallet in Plaintiff's pocket which contained an expired driver's license issued to "Paul Douglas Weldon." Id. ¶ 14. Conlee ran the expired license through dispatch and discovered Plaintiff had a suspended license. Id. ¶ 15. Based on Conlee's training and experience, he concluded Plaintiff was operating his vehicle on a public roadway knowing his driver's license was suspended, an arrestable offense in violation of Vehicle Code section 14601.1(A). Id. ¶ 16. Because of Plaintiff's suspended license, combined with the fact that Econo Lodge was a private parking lot situated in a high-crime area, making it an easy target for vandalism or theft, Conlee requested the vehicle be impounded. A tow-truck driver from Econo Towing arrived minutes later and towed Plaintiff's vehicle off the premises. Id. ¶ 17.

The Towing Defendants' Account

Econo Towing received a request from Officer Conlee that they tow an impounded vehicle. See Econo Towing Defendants' Separate Statement of Undisputed Material Facts ("ET-SSUMF, " Doc. 96-1), ¶ 7. Econo Towing dispatched its employee, tow-truck driver Beryle Dodson. ET-SSUMF ¶ 8. Upon arrival, Officer Conlee, a uniformed police officer at the scene, gave Dodson a Fresno Police Department Vehicle Inventory Report. Id. ¶ 9. Dodson reviewed the report and executed it. Id. ¶ 9. After Dodson executed the Inventory Report, Officer Conlee gave him the keys to the Dodge Caravan in order to facilitate the tow. Id. ¶ 8 & 10. Dodson was familiar with the procedure because it was the same procedure that he knew from previous Fresno Police impound tows, and the circumstances and procedures appeared appropriate and consistent with those known towing procedures for the Fresno Police Department. Id. ¶ 8 & 10. Dodson had no contact with Weldon; he neither saw nor spoke with Weldon at any point during the towing activity. Id. ¶ 12. All of the towing activity at the scene took place in the presence and under the supervision of Officer Conlee. In order for Conlee to inform Weldon about the vehicle's storage location, Dodson gave Conlee his Econo Towing business card, which included the location of the impound yard. At all times, Dodson believed that he was following the lawful instruction of Officer Conlee and was authorized to tow the vehicle and. Id. ¶ 13. Weldon's vehicle did not incur any damage from the towing and storage activity. Id. ¶ 14.

Econo Towing is not allowed to release an impounded vehicle to its owner without an executed release form from the impounding law enforcement agency. Id. ¶ 15. On the same day as the incident, at approximately 12:58 p.m., Leah Holler ("Holler"), the office manager at Econo Towing, received from the City of Fresno Police Department, via facsimile, the Vehicle Administrative Release form for Weldon's vehicle. Id. ¶ 16. Within approximately one hour after receiving the release form from the police department, Weldon and Lowell Dean Weldon presented themselves at Econo Towing's impound yard to recover Weldon's vehicle. Id. ¶ 17. Each presented their identification cards, which Holler photocopied. Id. Weldon paid the towing and storage charges, totaling $175.00, and Lowell Dean Weldon drove the vehicle off the lot. Id. ¶ 18.

B. Plaintiff's Facts[1]

Plaintiff Weldon alleges that he was driving down Belmont Avenue in Fresno, California on April 18, 2011 in a properly registered vehicle, a van, when he was pulled over by an employee of the Fresno Police Department driving a motorcycle. FAC ¶ 11. The man approached Plaintiff's driver-side window and identified himself as John Conlee, a Fresno Police Officer. Id. ¶ 12. Plaintiff asserts that Conlee was unlawfully impersonating a police officer because he never took an oath of office that comports with the minimum requirements of the United States or California constitutions. Id. ¶ 13. During his interaction with Plaintiff, Conlee used a harsh and belligerent tone. Id. ¶ 14. Plaintiff did not know why he had been pulled over by Conlee. Id. ¶ 14. Conlee informed Plaintiff that he was speeding. Id. ¶ 14.

Plaintiff did not like Conlee's belligerent attitude. Id. ¶ 15. Plaintiff told Conlee that they should immediately go before a magistrate so that the matter might be resolved in a respectful manner, which seemed to infuriate Conlee. Id. Conlee then reached into Plaintiff's van, snatched the keys out of the ignition, and became more belligerent. Id. During the interaction, Plaintiff received a phone call on his cellular phone from his legal counsel. Id. ¶ 16. Plaintiff took the call and asked the caller to wait so he could "deal with" Conlee. Id. Plaintiff placed his phone on the dashboard. Id. Conlee seemed concerned that the incident was being recorded. Id. Conlee snatched the phone, closed the cover, and tossed it back into the vehicle. Id. This seemed to further infuriate Conlee. Id.

Conlee ordered Plaintiff to get out of the van in a threatening tone. Id. ¶ 17. Plaintiff complied. Id. Upon Plaintiff's exit from the van, Conlee grabbed Plaintiff by his wrists, twisted his arms in a violent fashion as to bring Plaintiff's arms behind his back. Id. ¶ 18. The movement was "brutish" and caused Plaintiff pain in the joints, rotator sockets, elbows, and wrists. Id. Upon "wresting" Plaintiff's arms behind him, Conlee clenched Plaintiff's fingers together with great force, enough to cause him pain which lasted several hours. Id. ¶ 19. Conlee hurried to handcuff Plaintiff, and clamped them on "as tightly as possible." Id. ¶ 20. As a result of the tight handcuffs, Plaintiff experienced "considerable pain and numbness which lasted for several hours." Id. Plaintiff does not allege that he complained to Conlee about the handcuffs. Once Plaintiff was in handcuffs, Conlee proceeded to remove the contents of Plaintiff's pockets, including a pager clipped onto his pocket. Id. ¶ 21. While doing so, Conlee dropped the pager on the asphalt and it broke, irreparably. Id. Conlee took Plaintiff to the rear of the van "so that Weldon might observe him ripping off the valid tab from the rear license plate of Weldon's van." Id. ¶ 22.

Conlee next called a towing company, Econo Towing, to take Plaintiff's van away from the private property where the incident took place. Id. ¶ 23. Plaintiff contends that this was unlawful because no Defendant had a warrant from a court of competent jurisdiction that authorized any of the Defendants to lawfully remove his vehicle from the private property. Id. ¶ 25. The tow truck operator who arrived was Beryle Dodson. Id. ¶ 24. Dodson acted "at the behest of the other defendants in this action, " when he removed Plaintiff's van from private property without the approval from Plaintiff or the private property owner. Id. ¶ 26. Also, Dodson trespassed on private property. Id.

After the tow truck left, Conlee removed Plaintiff's handcuffs and left him stranded. Id. ¶ 27. Plaintiff was emotionally distressed. Id. Plaintiff's cellular phone was undamaged, so Plaintiff called someone to pick him up and drive him home. Id. He waited approximately 40 minutes along the street. Id.

Plaintiff does not address the validity of his arrest, his suspended license, or the officer's account of his giving a false name to identify himself.

C. Procedural History

Plaintiff commenced this action, pro se, by filing his original complaint with this Court on April 15, 2013. (Doc. 1). Plaintiff names Econo Towing Company, Robert Kodman and Marty Kodman, individual owner operators of Econo Towing Company, and Beryle Dodson, an individual tow truck operator for Econo Towing Company, as defendants in this action ("the Towing Defendants"), as well as Jerry Dyer, Chief of the Fresno Police Department, and Officer John Conlee, a City of Fresno police officer ("the City Defendants") (collectively, "Defendants"). See FAC (Doc. 77). On April 19, 2013, the Magistrate Judge screened the complaint, and, finding that Plaintiff stated some cognizable claims, required Plaintiff to either inform the Court whether he wished to proceed only as to the cognizable claims, or file an amended complaint curing the deficiencies. (Doc. 4). On May 14, 2013, Plaintiff filed his First Amended Complaint ("the Amended Complaint, " Doc. 5). On May 21, 2013, the Magistrate Judge screened the Amended Complaint, finding that it failed to state any cognizable claims, therefore dismissing it with leave to amend. (Doc. 7.)

On June 19, 2013, Plaintiff filed his Second Amended Complaint ("SAC, " Doc. 10). The Magistrate Judge again screened the SAC, finding that it stated some cognizable claims, but recommended that claims against Defendant Jerry Dyer and Plaintiff's claims under 42 U.S.C. § 1986 be dismissed with prejudice and that the action proceed only as to the claims against Defendants John Conlee, Econo Towing and Doe Defendants Nos. 1-3. Acknowledging Plaintiff's statement of nonopposition (Doc. 13), this Court adopted in full the Magistrate Judge's Findings and Recommendations in its Order rendered July 9, 2013. (Doc. 14).

On January 27, 2014, Plaintiff filed multiple motions for entry of default against Defendants (Docs. 30-33), which the Magistrate Judge denied on February 4, 2014. (Doc. 34).

On March 17, 2014, Plaintiff filed a motion for leave to amend his complaint in order to substitute the Doe Defendants (Doc. 35), and lodged the Third Amended Complaint ("TAC, " Doc. 36). For that limited purpose, the Magistrate Judge granted leave to amend. (Doc. 37).

In May 2014, the Defendants filed consents to jurisdiction of a United States Magistrate Judge (Docs. 47 & 48), but Plaintiff declined (Doc. 51). This Court referred subsequent pretrial motions to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 304.

On April 24, 2014, the Towing Defendants filed a Motion to Dismiss Plaintiff's Complaint (Doc. 44), which this Court referred to the Magistrate Judge (Doc. 45). On May 19, 2014, Plaintiff filed his opposition to the motion to dismiss (Doc. 50), and a "Motion for Leave to File Brief in Opposition to Defendants [...] Motion to Dismiss Complaint, or Alternatively, Motion for More Definite Statement' Out of Time" (Doc. 49).

On June 4, 2014, Plaintiff failed to appear at the motion hearing on Defendants' motion to dismiss (Doc. 52). As a result, the Magistrate Judge took the motion under submission without oral argument, and issued an order to show cause why sanctions should not issue for Plaintiff's failure to appear. (Doc. 55). Because Plaintiff had been given explicit notice about the hearing, the Magistrate Judge did not accept Plaintiff's excuse that he was unaware that his attendance was required. (Doc. 72). The Court admonished Plaintiff to comply with the Local Rules but did not issue monetary sanctions because Defendant failed to provide evidence of the costs and fees associated with their appearance at the motion hearing. Id. The Magistrate Judge also denied Plaintiff's motion relative to "a more definite statement out of time." (Doc. 53). Also on June 4, 2014, the Magistrate rendered his Findings and Recommendations (Doc. 54), in which he recommended to this Court that Defendants' motion to dismiss be denied, which this Court adopted in full on July 9, 2014 (Doc. 73).

On June 12, 2014, the Court rendered an order consolidating the instant action with Case No. 1:14-CV-00549 (Doc. 56). In light of the consolidation, Plaintiff requested leave to amend the TAC (Doc. 68), which, on July 30, 2014, the Magistrate Judge granted (Doc. 76).

On September 2, 2014, Plaintiff filed the operative Fourth Amended Complaint ("FAC, " Doc. 77). On September 19, 2014, the City Defendants filed a motion to strike portions of Plaintiff's FAC (Doc. 79). On October 24, 2014, the Magistrate Judge recommended denying the City Defendants' motion (Doc. 86), and this Court, on December 4, 2014, adopted in full the Magistrate Judge's findings and recommendations (Doc. 87).

On October 9, 2014, Plaintiff filed a motion for a protective order regarding a videotaped deposition of Plaintiff noticed by Defendants (Doc. 83). On October 10, 2014, the Magistrate Judge denied the motion (Doc. 84), without oral argument or further briefing, reasoning that Plaintiff's motion was frivolous for at least two reasons: first, that the basis for Plaintiff's motion was his subjective opinion that he should not have to participate in his deposition because he found it to be inconvenient and harassing; and, because Plaintiff's argument that his deposition served no purpose was nonsensical in circumstances where Plaintiff is obviously a percipient witness of the events alleged in his own complaint. The Magistrate Judge explicitly warned Plaintiff that he "must abide by the same rules and procedures that Defendants must abide by according to the Federal Rules of Civil Procedure, including those rules and procedures governing depositions and other discovery requests." (Doc. 80, Order Denying Mot. for Protective Order 2:3-5.)

On January 20, 2015, the City Defendants filed a motion to conduct a mental examination of Plaintiff pursuant to Federal Rule of Civil Procedure 35. (Doc. 88). Initially scheduled to be heard on March 11, 2015, it was continued to March 25, 2015 (Doc. 104). On February 17, 2015, Plaintiff filed a motion for protective order regarding a mental examination (Doc. 95). Plaintiff filed several discovery responses on January 26, 2015 (Docs. 89-91), which the Magistrate rightly disregarded on January 28, 2015 (Doc. 92).

On February 2, 2015, the City Defendants filed a motion to compel Plaintiff to provide responses to certain questions he refused to answer during his deposition (Doc. 93). The Magistrate Judge observed that the deposition transcript illustrates that Plaintiff's conduct during the deposition was rude, uncooperative, disrespectful, and simply unacceptable. After arriving twenty minutes late to his own deposition, Plaintiff initially refused to submit to the deposition until the City Defendant's attorney, Ms. Camarena, satisfied Plaintiff's groundless demands that she prove that she was licensed to practice law and qualified to administer oaths. Not until counsel warned Plaintiff about a future motion to compel and further sanctions did Plaintiff allow Ms. Camarena to ask questions. However, Plaintiff refused to answer numerous obviously relevant questions, arguing that they were not relevant. Finally, Plaintiff accused Ms. Camarena of "rape, a molest, and a torture" because she asked him questions which displeased him. Plaintiff behaved in this uncooperative, offensive, and unacceptable manner despite the Magistrate Judge's October 10, 2014 Order, in which he expressly rejected Plaintiff's claims that a deposition was unduly inconvenient and harassing, and had explicitly ordered Plaintiff to comply with Federal Rules, including those about depositions and discovery.

Because the Court scheduled a hearing on the City Defendant's motion to compel for March 11, 2015, in accordance with Local Rule 251, the parties were required to file a Joint Statement regarding the discovery dispute by March 4, 2015. Instead, on March 4, 2015, the City Defendants filed a statement in which they informed the Court that Plaintiff failed to participate in drafting a joint statement (Doc. 102). On March 6, 2015, the Magistrate Judge rendered an order granting the City Defendant's motion to compel and ordered Plaintiff to show cause why sanctions should not issue for Plaintiff's refusal to participate in the preparation of a Joint Statement (Doc. 103). In the same Order, the Magistrate Judge ordered Plaintiff to pay $715.00 in monetary sanctions for ...

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