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Weldon v. Anaya

United States District Court, E.D. California

April 5, 2017

PAUL WELDON, Plaintiff,
RUDY ANAYA, Defendants.


         Plaintiff Paul Weldon is proceeding pro se with this civil rights action against defendant City of Fresno police officer Rudy Anaya. Plaintiff's first amended complaint[1], the operative pleading in this action, was filed on November 20, 2015, and alleges the following causes of action: (1) an unlawful seizure in violation 42 U.S.C. § 1983; and (2) false arrest and false imprisonment. (Doc. No. 5.) On December 19, 2016, during the pretrial conference in this matter, the court determined that it was appropriate to reopen law and motion to allow for a motion for summary judgment to be filed. (Doc. No. 31.) Subsequently, on January 9, 2017, defendant Anaya moved for summary judgment under Federal Rule of Civil Procedure (“Rule”) 56(a). (Doc. No. 33.) On February 6, 2017, plaintiff filed an opposition to the motion for summary judgment and, on February 13, 2017, defendant filed a reply. (Doc. Nos. 35, 36, 37.) Plaintiff filed a second opposition to the pending motion two days before the hearing on February 21, 2017. (Doc. No. 39.)[2]

         The matter came before the court for hearing on February 23, 2017. (Doc. No. 41.) Deputy City Attorney Erica Mercado Camarena appeared on behalf of defendant Anaya and plaintiff Weldon appeared telephonically in pro se on his own behalf. (Id.) For the reasons set forth below, defendant's motion for summary judgment will be granted.


         Defendant Anaya has filed a statement of undisputed facts in support of his motion for summary judgment. (Doc. No. 33-2.) In addition, in support of his motion defendant has filed declarations by his counsel Deputy City Attorney Erica Camarena, Rose Miranda, Anthony DeWall, Tom Rowe, and himself. (Doc. Nos. 33-3, 33-4, 33-5, 33-6, 33-7.) Finally, defendant has lodged with the court, plaintiff Weldon's original deposition transcript and a video recording of that deposition. (Doc. No. 33-8.) Plaintiff, however, failed to comply with Local Rule 260(b) by not reproducing defendant's itemized facts set forth in defendant's statement of undisputed facts and admitting the facts that are undisputed and denying those that are disputed. Indeed, the only evidence plaintiff timely submitted in opposition to the pending motion as defendant Anaya's self-authenticating, signed oath of office form attached as exhibit “A1” to plaintiff's opposition to the motion for summary judgment.[3] (Doc. No. 36 at 17.)

         Plaintiff also submitted an untimely declaration just two days before the hearing on the pending motion for summary judgment. (Doc. No. 40.) The declaration, however, does not comply with 28 U.S.C. § 1746, which requires that a declaration be subscribed as true under penalty of perjury, and be executed substantially in the statutory form, which requires a declarant to swear “under penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746. Although a lack of swearing to the declaration may not be a fatal defect, the declaration must be made under penalty of perjury and must be attested to be true. Cobell v. Norton, 310 F.Supp.2d 77, 84 (D.D.C. 2004) (statement of truth based on “knowledge, information, and belief” are insufficient); Kersting v. United States, 865 F.Supp. 669, 676-77 (D. Haw. 1994) (necessary elements are that the unsworn declaration contains the phrase “under penalty of perjury” and states that the document is true). Here, plaintiff's declaration states only “I hereby declare that the foregoing is correct and true to the best of my knowledge, information and belief.” (Doc. No. 40 at 3.) The declaration also fails to contain the phrase “under penalty of perjury” and therefore does not conform with 28 U.S.C. § 1746. Accordingly, the document submitted by plaintiff is not a sworn declaration in opposition to summary judgment under Rule 56. See also Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir. 1991) (rejecting an affidavit because it was “not based on personal knowledge, but on information and belief”), aff'd, 508 U.S. 49 (1993). In any event, even if plaintiff's declaration was admissible, it would not create a genuine dispute as to any material fact.[4]

         The evidence before the court on summary judgment establishes the following. On July 5, 2013, as part of the DUI enforcement campaign, the Fresno Police Department, Traffic Bureau established a DUI checkpoint at Wishon and Hedges Avenues in Fresno, California. (Doc. Nos. 33-2 at 4 and 33-6 at 2.) Sergeant Anthony DeWall was the supervisor tasked with overseeing the operation of the checkpoint. (Id.) The operation plan included numerous reflectorized stop signs, DUI checkpoint advisory signage, cones leading up to the checkpoint in order to control lanes, and numerous police patrol cars and motorcycles with lights activated. (Doc. Nos. 33-2 at 5 and 33-6 at 2.) Sergeant DeWall was also tasked with supervising defendant officer Anaya, who was assigned to monitor any vehicles that attempted to pull out of the DUI checkpoint line. (Id.)

         At or about 10:00 p.m. on July 5, 2013, defendant officer Anaya observed plaintiff's van travelling southbound on Wishon Avenue near Hedges (a one-way street) headed towards the DUI checkpoint. (Doc. Nos. 33-2 at 5 and 33-5 at 2.) As the vehicle approached the coned area of the DUI checkpoint, defendant Anaya saw the van stop, reverse and move backwards against traffic, and turn into an apartment complex parking lot. (Id.) Because the van travelled in reverse on a one-way street and because it pulled out of the coned area of the DUI checkpoint, defendant Anaya concluded that he had reasonable suspicion justifying the initiation of a traffic stop based upon violations of Vehicle Code §§ 21657 and 2814.2. (Id.) Plaintiff has alleged he was travelling down Wishon Avenue when he received a call on his cell phone and, in the interest of safety, he pulled over to the side of the road to take the call and backed up into an apartment complex parking lot. (Doc. Nos. 5 at 2; 33-2 at 2; 33-3 at 16, 35.)[5] It is undisputed that plaintiff did not live at that apartment complex nor did he know anyone who resided there. (Doc. Nos. 33-2 at 2 and 33-3 at 18.)

         Defendant officer Anaya initiated a traffic stop and parked his department-issued motorcycle in front of plaintiff's van, blocking its movement. Defendant Anaya, in uniform, approached plaintiff's van. (Doc. Nos. 33-2 at 2 and 33-3 at 21.) Defendant Anaya told plaintiff to place the van in park and asked him for his driver's license, and plaintiff complied. (Doc. Nos. 33-2 at 3 and 33-3 at 19, 23.) Defendant Anaya told plaintiff there was a DUI checkpoint just ahead on Wishon. (Doc. Nos. 33-2 at 3 and 33-3 at 25.) Defendant Anaya took plaintiff's driver's license and, according to plaintiff, officer Anaya then “did his thing, called in, made the check . . . on the radio.” (Doc. Nos. 33-2 at 3 and 33-3 at 24, 27.) At or about 10:03 p.m., defendant Anaya ran a search of plaintiff's driver's license through the Police Department's Record Management System and confirmed it was valid. (Doc. Nos. 33-2 at 5 and 33-5 at 3.)

         `After observing that plaintiff appeared sober, defendant Anaya handed back plaintiff's driver's license and allowed him to leave without further incident and without citing him for any traffic violations. (Id.; Doc. Nos. 33-2 at 33-3 at 27.) According to plaintiff defendant Anaya: (1) did nothing to evaluate his sobriety (Doc. Nos. 33-2 at 33-3 at 26); did not ask plaintiff to step out of his vehicle (Id.); did not handcuff plaintiff, read him his Miranda rights, or tell plaintiff he was under arrest (Doc. Nos. 33-2 at 33-3 at 28); never touched plaintiff and did not pull his gun or Taser out (Doc. Nos. 33-2 at 33-3 at 29-30). Defendant Anaya estimated that it takes approximately five minutes to run a driver's license check on a subject. (Doc Nos. 33-2 at 6 and 33-5 at 3.) He estimated that plaintiff's detention may have been a little longer because it was the Fourth of July holiday weekend, but it would be unusual for it to have taken longer than fifteen minutes to run the check on plaintiff's driver's license. (Id.)[6]

         At no time during the evening of July 5, 2013, was it ever brought to Sergeant DeWall's attention that plaintiff had made a complaint, expressed a concern, or leveled an allegation that he had been unlawfully arrested. (Doc. No. 33-2 at 5 and 33-6 at 3.) At no time that evening did Sergeant DeWall observe defendant Anaya do anything inappropriate or unbecoming of an officer. (Id.)

         Plaintiff presented a claim for damages with respect to this incident to the City of Fresno on July 18, 2013. (Doc. Nos. 33-2 at 8 and 33-4 at 4-5.) On August 27, 2013, the City of Fresno served plaintiff with a notice of rejection of claim at his address as identified on the claim for damages which he had submitted. (Doc. Nos. 33-2 at 8 and 33-4 at 7-8.) The notice informed plaintiff that, subject to certain exceptions, he had only six months from the date of the notice to file a court action with respect to his claim. (Id.) The present action was filed in this court on June 8, 2015. (Doc. No. 1.)


         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the ...

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