United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS (DOC. 47)
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
PRELIMINARY STATEMENT TO PARTIES AND
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
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.
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. 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
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
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.
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.
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.
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.
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.
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.
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.
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. As described above, Plaintiff successfully
challenged his conviction pursuant to 28 U.S.C. § 2254.
STANDARD OF DECISION
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).
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).
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
Due Process Claims
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.
of Evidence Claims
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
"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.
Exculpatory or Impeachment Value of the Missing
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.
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).
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.
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. 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.