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Niesen v. Garcia

United States District Court, E.D. California

July 5, 2016

THERESA MARIE NIESEN, Plaintiff,
v.
L. GARCIA, YOLO COUNTY SHERIFF’S DEPUTY; J. CEJA, YOLO COUNTY SHERIFF’S DEPUTY; J. LAZARO, YOLO COUNTY SHERIFF’S DEPUTY; M. NEVIS, YOLO COUNTY SHERIFF’S DEPUTY; OFFICER BIGELOW, ANIMAL CONTROL OFFICER FOR YOLO COUNTY; YOLO COUNTY SHERIFF’S DEPARTMENT; YOLO COUNTY PROBATION DEPARTMENT, and Does 1 through 50, et al., Defendants.

          MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

          WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE

         Plaintiff Theresa Niesen brought this civil rights action under 42 U.S.C. § 1983 alleging that defendants violated her Fourth Amendment rights by unlawfully seizing her dogs and arresting her following a probation search of her home. The matter is now before the court, pursuant to Federal Rule of Civil Procedure 56, on (1) defendants Yolo County Sheriff’s Deputies Lech Garcia, Juan Ceja, and Jerry Lazaro’s (“Deputies”) motion for summary judgment on all of plaintiff’s claims, (Docket No. 20), and (2) defendants Yolo County Animal Control Officers Michael Nevis and Vanus Bigelow’s (“Officers”) motion for summary judgment on all of plaintiff’s claims, (Docket No. 21).

         I. Factual and Procedural Background

         On June 26, 2012, Shane Edington was sentenced in the Superior Court of California, County of Yolo, to three years’ summary probation for various misdemeanor convictions. (Req. for Judicial Notice (“RJN”) Ex. A (Docket No. 20-3).)[1] The terms of Edgington’s probation required him to submit to any search of his person, vehicle, or residence for stolen property “at any time of day or night[, ] with or without [a] warrant, upon the request of any peace officer.” (Id.)

         In December 2012, Yolo County Sheriff’s Deputy Lazaro planned to conduct a probation search of Edgington. (Dehoff Decl. Ex. H (“Lazaro Dep.”) at 6:25-22:6 (Docket No. 20-4).) To obtain Edgington’s most recent address, Deputy Lazaro spoke with a confidential informant that he had used on five previous occasions and believed to be reliable. (Id.) The informant told Deputy Lazaro that Edgington resided with plaintiff, his girlfriend, at 138 Antelope Street in Woodland, California (the “House”). (Id.) Deputy Lazaro then followed up with Yolo County Superior Court’s Criminal Division to inquire about Edgington’s most recent listed address. (Id.) The court informed Deputy Lazaro that its master court file listed Edgington’s current address as 138 Antelope Street in Woodland, California. (Id.; see Dehoff Decl. Ex. G.)

         Based on this information and believing that Edgington resided in the House, Deputies Lazaro, Ceja, and Garcia arrived at the House on December 17, 2012 at 9:00 a.m. to conduct the probation search. (Lazaro Dep. at 22:16-24:10.) Plaintiff, who resided in the House, was not home at the time of the probation search. (Dehoff Decl. Ex. L (“Van Asperen Dep.”) at 9:14-15:19; Dehoff Decl. Ex. N (“Niesen Dep.”) at 12:9-13:11.) The Deputies knocked on the front door and announced themselves as sheriffs. (Lazaro Dep. at 23:1-23.) After receiving no response, the Deputies entered the House through the front door. (Id.; Dehoff Decl. Ex. J (“Garcia Dep.”) at 12:16-15:19.) The Deputies encountered one male, Vincent Van Asperen, and one female, Carol Vitalie, on the sofa in the living room. (Lazaro Dep. at 23:24-24:10.) Van Asperen and Vitalie consented to a search of their persons, which revealed a methamphetamine glass pipe in each of their possessions. (Id. at 61:1-21; Garcia Dep. at 15:20-18:18.)

         Deputy Lazaro performed a protective sweep of the House and found a bedroom with a closed door in the back of the House. (Lazaro Dep. at 27:16-30:10.) Upon partially opening the bedroom door, Deputy Lazaro observed three pit bull terriers barking and growling, video monitoring equipment that showed the front of the House, and an open sliding glass door on the other side of the room leading out to the backyard. (Id.) Suspecting that Edgington was in the bedroom and had taken off, Deputy Lazaro called Animal Control to secure the three pit bulls so the Deputies could search the bedroom.[2] (Id. at 58:21-59:2; Dehoff Decl. Ex. I (“Ceja Dep.”) at 52:11-53:14.)

         Animal Control Officer Nevis arrived a short time later with a snare pole used for catching, holding, and releasing animals. (Lazaro Dep. at 30:11-32:14; Dehoff Decl. Ex. K (“Nevis Dep.”) at 12:5-13:25.) Officer Nevis and Deputy Lazaro, who had his Taser out, partially opened the bedroom door and observed the three pit bulls barking and growling inside. (Lazaro Dep. at 30:11-32:14.) Officer Nevis snared the first pit bull and began to lead it out of the bedroom. (Id.) As Nevis was leading the snared dog out of the door, the second pit bull jumped over the snared dog and advanced toward Officer Nevis. (Id.) Deputy Lazaro tased the second pit bull and momentarily subdued it. (Id.) The third pit bull then ran out of the bedroom and, in doing so, dislodged the Taser wires attached to the second dog, which stopped the shocking process and freed it. (Id.) The two free pit bulls then ran down the hallway toward the living room, and Deputy Lazaro yelled a warning to the other Deputies. (Id.; Nevis Dep. at 12:5-13:25.)

         One pit bull ran toward Deputy Ceja, who initially shot it three times and then four additional times when it “continued to come at [him].” (Ceja Dep. at 19:15-23:12, 28:2-23, 54:7-55:3.) The other pit bull ran toward the sofa where Van Asperen, Vitalie, and Deputy Garcia were. Deputy Garcia shot the pit bull twice from six to eight feet away as it ran toward them. (Garcia Dep. at 24:24-26:1; Van Asperen Dep. at 40:24-41:9.) Animal Control Officer Bigelow subsequently arrived at the House and took possession of the snared dog from the bedroom, as Officer Nevis and Deputy Ceja placed the two wounded pit bulls in Nevis’ vehicle and Nevis drove them to an animal clinic at the University of California at Davis, School of Veterinary Medicine. (Ceja Dep. at 27:12-17, 29:4-12; Dehoff Decl. Ex. O-1 (“Bigelow Dep.”) at 15:17-17:12 (Docket No. 21-3).) By the time Officer Nevis reached the clinic, however, the dogs had died from their wounds. (Nevis Dep. at 14:7-9, 20:16-21:24.)

         The Deputies then searched the remainder of the House. In the bedroom they found (1) .35 grams of methamphetamine; (2) a glass smoking pipe; (3) a letter from Yolo County Superior Court addressed to Edgington at the House’s address; and (4) Edgington’s name written on boxes containing clothes and other belongings. (Lazaro Dep. at 37:1-52:7, Ex. 5.) The Deputies and Officers also found three more pit bulls in a kennel in the backyard and another pit bull in the garage of the House. (Id.; Ceja Dep. at 31:13-35:25; Niesen Decl. ¶¶ 8-9 (Docket No. 26-1).)

         Officer Nevis returned to the House and, together with Officer Bigelow, snared and removed the remaining dogs and transported them to the Yolo County Animal Services shelter pending reclamation by their owner. (Ceja Dep. at 31:13-16; Nevis Dep. at 22:7-254:7; Bigelow Dep. at 17:18-18:23; Niesen Decl. ¶ 12.) Van Asperen and Vitalie were placed under arrest for possession of drug paraphernalia and transported to Yolo County Jail. (Lazaro Dep. at 61:1-63:13; Garcia Dep. at 30:2-17; Van Asperen Dep. at 31:7-33:15.) At approximately 11:40 a.m., the Deputies declared the House secure and left the premises. (Ceja Dep. at 36:16-17.)

         Upon returning from the search, Deputy Lazaro filled out and signed a declaration for probable cause to arrest plaintiff for possession of a controlled substance and drug paraphernalia based on the .35 grams of methamphetamine and glass smoking pipe found in her bedroom. (Lazaro Dep. at 45:19-46:14.) On December 19, 2012, pursuant to the probable cause declaration, Deputy Ceja returned to the House with three other deputies and arrested plaintiff. (Ceja Dep. at 37:19-40:23, 59:20-65:3.) Plaintiff spent two days in Yolo County Jail because she was unable to post bail. (Niesen Decl. ¶¶ 18-20.) On December 21, 2012, she was released and informed that the District Attorney declined to prosecute her for the drugs and paraphernalia found during the December 17, 2012 search. (Id. ¶ 20; Niesen Dep. at 175:19-176:21.)[3] Following the incident, plaintiff could afford to retrieve only three of her five dogs from Animal Services. (Niesen Decl. ¶¶ 14-16.)

         Plaintiff filed a Complaint for damages on September 12, 2016, alleging claims under 42 U.S.C. § 1983 against Deputies Lazaro, Ceja, and Garcia and Officers Bigelow and Nevis. (Compl. ¶¶ 1-14 (Docket No. 1).)[4] Plaintiff alleges that (1) the killing of her two dogs and seizure of her five other dogs on December 17, 2012 constituted an unreasonable search and seizure in violation of her Fourth Amendment rights, and (2) plaintiff’s arrest on December 19, 2012 and ensuing detention violated her Fourth Amendment rights because “there was no evidence that Plaintiff had committed any crime.” (Id. ¶¶ 17-25.)[5]

         Plaintiff seeks emotional distress and punitive damages and compensatory damages for the loss of the value of her two dogs that were killed, the amount she paid to retrieve three of her other dogs from Animal Services, and the loss of the value of the two remaining dogs she could not afford to retrieve. (Id. ¶¶ 5, 20.) The Deputies and Officers now move for summary judgment on plaintiff’s Fourth Amendment claims. (Docket Nos. 20-21.)

         II. Legal Standard

         A party may move for summary judgment on a “claim or defense.” Fed.R.Civ.P. 56(a). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). A material fact is one that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists if the evidence produced would allow a reasonable trier of fact to reach a verdict in favor of the non-moving party. Id.

         The moving party bears the initial burden of establishing that no genuine issue of material fact exists as to the particular claim or defense. Id. at 256. Where the moving party seeks summary judgment on a claim or defense for which it bears the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find for the non-moving party on that claim or defense. Soremekun v. Thrifty Payless Inc., 509 F.3d 978, 994 (9th Cir. 2007). If summary judgment is sought on a claim or defense for which the non-moving party bears the burden of proof at trial, the moving party must either (1) produce evidence negating an essential element of the non-moving party’s claim or defense, or (2) show that the non-moving party cannot produce evidence to support an essential element of its claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         Once the moving party has met its initial burden, the burden shifts to the non-moving party to produce concrete, specific evidence establishing a genuine issue of material fact. Id. at 324; Anderson, 477 U.S. at 256. To carry this burden, the non-moving may not rely “solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, it must produce sufficient evidence beyond the pleadings that would allow a reasonable trier of fact to find in its favor. Anderson, 477 U.S. at 256. If it does so, then “there is a genuine issue of fact that requires a trial.” Id. at 257.

         In ruling on a motion for summary judgment, the court may not weigh the evidence, make credibility determinations, or determine the truth of the matters asserted, and it must view all inferences drawn from the factual record in the light most favorable to the non-moving party. Id. at 249, 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party” unless that evidence is “uncontradicted and unimpeached” and “comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation omitted).

         III. Discussion

         Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. “Section 1983 does not create substantive rights; it merely serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979)).

         To establish § 1983 liability, a plaintiff must show both (1) the deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was caused by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011). Section 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” Daniels v. Williams, 474 U.S. 327, 329-30 (1986). There is no dispute here that the various defendants acted under color of state law.

         A. Shooting of the Two Dogs

         The Fourth Amendment guarantees citizens the right “to be secure in their . . . effects[ ] against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. “The killing of a dog is a destruction recognized as a seizure under the Fourth Amendment and can constitute a cognizable claim under § 1983.” San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005) (“Hells Angels”) (quotation marks and alterations omitted). Plaintiff’s first § 1983 claim alleges that the Deputies’ shooting of her two dogs constituted unlawful seizures in violation of the Fourth Amendment.[6]

         1. Deputies’ Liability for Shooting the Dogs

         The Deputies argue that summary judgment is warranted because (1) they acted in self-defense in shooting plaintiff’s two dogs and thus did not violate plaintiff’s Fourth Amendment right; and (2) even if the court finds a Fourth Amendment violation, the Deputies are entitled to qualified immunity because a reasonable deputy under the same circumstances would have believed that the probation search could not occur without removing the dogs from the bedroom, Animal Control was the best way ...


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