Souliotes v. City of Modesto

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. 47)

          Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

         I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

         Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

         Civil trials set before Chief Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California.

         II. PROCEDURAL POSTURE

         Plaintiff George Souliotes was incarcerated in state prison for approximately sixteen years due to his alleged involvement with a fire that occurred at a residential property he owned and rented in Modesto, California. First Am. Compl. for Damages. ("FAC"), Doc. 42, ¶¶ 18, 44. Three people died in the fire. Id. ¶ 18. On April 12, 2013 his judgment and sentence were vacated pursuant to 28 U.S.C. § 2254 on the basis that his defense counsel was ineffective at his trial. Id. ¶¶ 42-42; Finding and Recommendation Regarding Pet. For Writ of Habeas Corpus ("F & R's"), Req. for Judicial Notice ("RJN"), Ex. E, Doc. 47-10, at 90-93; Order Adopting Finding and Recommendation with Edits Listed Below, RJN, Ex. F, Doc. 47-11.^[1] On July 2, 2013, Plaintiff entered a nolo contendre plea to three counts of involuntary manslaughter on the basis that he failed to ensure that the property had an operable smoke alarm. FAC ¶ 43. In exchange, the State dismissed pending arson and murder charges and agreed to Plaintiff's immediate release. Id.

         On April 10, 2015 Plaintiff, acting pro se, initiated this civil rights suit against the City of Modesto, the Modesto Police Department ("MPD"), the Modesto Fire Department ("MFD", ) and MPD (?) officers Mike Harden, Roger Lee, Dick Ridenour, John Buehler, Dodge Hendee, Joe Pimentel, Bob Evers and Tom Reuscher. Compl. Doc. 1. Defendants filed a motion to dismiss on November 13, 2015 (Doc. 34).^[2]

         On December 1, 2015, the parties stipulated to allow Plaintiff to file an amended complaint in lieu of a response to the motion to dismiss and to extend filing deadlines. Docs. 38 & 41. Plaintiff filed his FAC on December 14, 2015, in which he alleges that the individual defendants conspired to deprive him of his right to a fair trial and engaged in a malicious prosecution "undertaken pursuant to the policy and practice of the Modesto Police Department and the Modesto Fire Department." FAC ¶¶ 58, 65, 79. Plaintiff further alleges that Defendants Mike Harden and Reuscher are liable as supervisors and that the MPD and MFD are liable for "failing to adequately train, supervise, and control its officers, such that their failure to do so manifests deliberate indifference." Id. ¶ 89.

         After receiving an extension of time, Doc. 44, Defendants filed their motion to dismiss on February 26, 2016. Defs.' Notice of Mot. and Mot. to Dismiss ("MTD"), Doc. 47. Defendants argue that Plaintiff's claims fail pursuant to Rule 12(b)(6). Id. at 1. Plaintiff received two extensions of time, and filed his response on April 22, 2016. Pl.'s Resp. in Opp'n to Defs.' Mot. to Dismiss Pl.'s Am. Compl. ("Opposition"), Doc. 52. Defendants replied on May 9, 2016. Defs.' Reply in Supp. of Mot. to Dismiss ("Reply"), Doc. 57. The Court vacated the hearing set for the matter pursuant to Local Rule 230(g). Doc. 58.

         III. FACTUAL BACKGROUND^[3]

         In the early morning hours of January 15, 1997, a fire broke out at 1319 Ronald Ave, a residential property located in Modesto, California. FAC ¶ 18. Plaintiff owned and rented the property. Id. Three tenants, an adult woman and her two young children, died in the fire. Id. Plaintiff maintains that he was home asleep at the time the fire broke out. Id. ¶ 19.

         MFD Investigator Tom Reuscher and MPD Officer Joe Pimentel were two of the first responders to arrive at the scene. Id. ¶¶ 21, 23. Monica Sandoval (a witness) identified herself to Pimentel as a neighbor and told him that she had observed a recreational vehicle drive down the street several times before the fire began. Id. at ¶ 23. Ms. Sandoval reported that, at some point shortly before the fire began, the vehicle was parked across the street from 1319 Ronald Avenue, after which a driver emerged, carrying what appeared to be a pillowcase. Id. She observed the driver cross the street, enter the property, and return minutes later empty-handed. Id. Ms. Sandoval described the driver as being in his thirties or early forties, and as wearing glasses, blue denim jeans, a checkered shirt, and dark shoes. Id. Ms. Sandoval also stated that she did not get a "clear look" at the driver and would not be able to identify him. Id.

         Defendants Lee, Ridenour, Pimentel and Reuscher met with Ms. Sandoval to conduct follow-up interviews. Id. ¶ 25. Plaintiff alleges that at least one of these interviews was audio-recorded. Id. He also alleges that Ms. Sandoval made a sketch of the vehicle. Id. Plaintiff clams that neither the audio recordings nor the sketch was ever disclosed or produced. Id.

         At some point, some or all of the individual defendants drove Ms. Sandoval to Plaintiff's home for the purpose of evaluating whether Plaintiff's Winnebago was the same vehicle she observed the night of the fire. Id. ¶ 27. When she failed to positively identify the vehicle, some or all of the defendants relocated the Winnebago "and surrounded it with several marked police cars and law enforcement officers." Id. At this point, Ms. Sandoval identified the Winnebago as the vehicle in question. Id. Plaintiff alleges that some or all of the defendants subsequently falsified their police reports such that descriptions Ms. Sandoval had previously given about the vehicle more closely matched his Winnebago. Id. ¶ 28.

         Plaintiff alleges that Evers and other defendants "reached an agreement to falsely claim that the cause of the fire was arson and that the culprit was Plaintiff." Id. ¶ 29. Plaintiff alleges that some or all of the defendants also fabricated documents that showed his financial situation was precarious and that he had a "vendetta" against his tenants. Id. ¶ 30. Plaintiff states that at the time of the fire, his finances were "healthy and secure, " and although he had initiated eviction proceedings against the tenants, he had allowed them to stay in place "through the holidays, " and that he was "actively negotiating" the sale of the property. Id.

         Plaintiff's jury trial began on February 16, 1999. Id. ¶ 31. Plaintiff claims that the prosecution relied on "false ‘arson' conclusions" reached by Reuscher and Evers, Ms. Sandoval's "doctored" eyewitness testimony, and "falsified evidence suggesting that Plaintiff was in dire financial straits." Id. Plaintiff alleges that the individual defendants also "failed to inform the prosecutors that the arson ‘science' they utilized was outdated and debunked." Id. ¶ 32. Plaintiff claims that absent these activities, there would not have been probable cause for his prosecution. Id. In his defense, Plaintiff put forth evidence that challenged the conclusion that the fire had been intentionally set and that Plaintiff had a financial incentive to start the fire. Id. ¶ 32. Ultimately, the jury was not able to reach a unanimous verdict and the judge declared a mistrial. About a year later, Plaintiff was re-tried. Id. ¶ 35. The prosecution presented the same case as it did in the first trial. Id. ¶ 36. This time, Plaintiff was found guilty and sentenced to life imprisonment.^[4] As described above, Plaintiff successfully challenged his conviction pursuant to 28 U.S.C. § 2254.

         IV. STANDARD OF DECISION

         A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. A 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

         To survive a 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Thus, "bare assertions . . . amount[ing] to nothing more than a ‘formulaic recitation of the elements' . . . are not entitled to be assumed true." Iqbal, 556 U.S. at 681. In practice, "a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562. In other words, the Complaint must describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim. To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

         V. ANALYSIS

         A. Due Process Claims

         Plaintiff alleges four due process violations: (1) suppressing exculpatory evidence, (2) fabricating evidence, (3) using suggestive eyewitness identification methods, and (4) conducting a reckless investigation against all individual Defendants. FAC ¶ 59.

         1.Suppression/Destruction of Evidence Claims

         a. Legal Background

         In Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "[T]he materiality standard for Brady claims is met when ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Brady claims generally involve "the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103 (1976). Whether or not the suppression of evidence amounts to a due process violation "must be evaluated in the context of the entire record." Id. at 112-13.

         While "the good or bad faith of the State" is "irrelevant" under Brady, the Supreme Court has found that "the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Thus, for the destruction or loss of evidence to amount to a constitutional violation, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489 (1984)). Alternatively, "where lost or destroyed evidence is deemed to be only potentially exculpatory, as opposed to apparently exculpatory, the defendant must show that the evidence was destroyed in bad faith." United States v. Estrada, 453 F.3d 1208, 1212 (9th Cir. 2006) (citing Youngblood, 488 U.S. at 51). The bad faith requirement "both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Youngblood, 488 U.S. at 58.

         b. Exculpatory or Impeachment Value of the Missing Evidence

         To establish either a Brady or Youngblood claim, a plaintiff must show that the suppressed or withheld evidence was material to his case, either because it was exculpatory or because it was impeaching. Strickler, 527 U.S. at 281; Trombetta, 467 U.S. at 489. Defendants argue that Plaintiff's claims fail because he presents no basis for believing that the sketch or recording had exculpatory or impeachment value.

         The parties do not identify any cases that deal with the pleading standards necessary for a Brady or Youngblood claim to survive a motion to dismiss. However, their briefs (and the Court's own research) identify many cases in which the materiality of suppressed or lost evidence has been analyzed at later stages of litigation. These cases provide guidance as to what Plaintiff must demonstrate to succeed on his claim. For example, in United States v. Drake, police had access to, but ultimately lost, surveillance video of a robbery. 543 F.3d 1080, 1083 (9th Cir. 2008). The Ninth Circuit found that the materiality element was not met here because "[t]he digital recording of the robbery here was far from clearly exculpatory; indeed, it is possible that it would have further incriminated [the defendant]." Id. at 1090. Similarly, in Ford v. McDonald, a criminal defendant asserted that the loss of a recording of an interview with a witness amounted to a due process violation that was later summarized in a report. No. ED CV 09-0275, 2010 WL 3929454, at *9 (C.D. Cal. July 23, 2010), report and recommendation adopted, No. ED CV 09-0275, 2010 WL 3929453 (C.D. Cal. Oct. 2, 2010). The Court found that Petitioner's belief that the recording "might have revealed that [the witness] said ‘something completely different'" from his trial testimony rested on "unadulterated speculation" and that it was also possible "that the recording might have contained additional evidence that would inculpate, and not exculpate, Petitioner." Id. at 10. Critically, in these cases defendant-petitioners had no basis for claiming what was contained in the evidence. In contrast, in Tennison v. City & Cty. of San Francisco, the Ninth Circuit found a Brady violation may have occurred where police officers did not turn over to prosecutors statements a defense witness made to them indicating that they had arrested the wrong man and contradicting the account of another key witness. 570 F.3d 1078, 1091 (9th Cir. 2009).

         Construing the facts in a light most positive to Plaintiff, the Court must credit his allegations that Defendants withheld, and perhaps destroyed, a recording in which Ms. Sandoval, the sole eyewitness, originally described the suspect and vehicle she saw the night of the incident "in a manner that did not match either Plaintiff or his vehicle." FAC ¶ 25. The Court must also credit his allegation that Defendants withheld and perhaps destroyed a sketch she made depicting a vehicle that did no match his own. Id. These allegations are different from those in Drake and Ford because in those cases, defendants could not show that the suppressed materials said anything in particular. Here, Plaintiff has alleged that the evidence does show something-that statements and drawings of the perpetrator did not match him. While the statements are not of such obvious value as the ones suppressed in Tennison, they are enough to it is difficult to see how these things would not, at least potentially, have value showing that Plaintiff was not the man whom Ms. Sandoval saw on the night of the fire. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("Plaintiff's complaint may be dismissed only when defendant's plausible alternative explanation is so convincing that plaintiff's explanation is implausible."). Thus, Plaintiff has alleged facts that plausibly suggest these materials potentially had exculpatory or impeachment value.

         c. Prejudice/Comparable Evidence

         Materiality is a necessary, but not the sole, condition for establishing a claim under either Brady or Youngblood. Under Brady, a plaintiff must show that his case was prejudiced. Strickler, 527 U.S. at 281-82.^[5] Under Youngblood, a plaintiff must show that the evidence is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. 479, 489. Defendants argue that because Plaintiff did not establish that "the underlying information was exclusively in the government's possession" or that "he did not have reasonable access to the same information, " he fails to state a claim under either standard. MTD at 17-18.^[6]

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