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Wagda v. Town of Danville

United States District Court, N.D. California

May 26, 2017

DONALD CLOYCE WAGDA, Plaintiff,
v.
TOWN OF DANVILLE, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS RE: DKT. NO. 92

          MAXINE M. CHESNEY, UNITED STATES DISTRICT JUDGE

         Before the Court is the Motion for Judgment on the Pleadings, filed December 16, 2016, by defendants Town of Danville ("Town"), County of Contra Costa ("County"), Mike Jimenez ("Jimenez"), Emily Neabeack ("Neabeack"), Tom Rossberg ("Rossberg"), and Steven Stapleton ("Stapleton") (collectively, "defendants"), with respect to plaintiff Donald Cloyce Wagda's ("Wagda") First Amended Complaint ("FAC"), filed March 29, 2016. Plaintiff has filed opposition, to which defendants have replied; additionally, with leave of court, defendants have filed a supplemental brief and plaintiff has filed a brief in response thereto. The instant motion is brought pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

         Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.

         BACKGROUND

         By prior order, filed October 24, 2016 ("October 24 Order"), the Court granted in part and denied in part defendants' motion to dismiss the FAC. See October 24 Order.[1] By their motion for judgment on the pleadings, defendants seek an order dismissing as to each of them "the majority of Wagda's remaining claims." (See Defs.' Motion for Judgment on the Pleadings ("MJP") at 2:5-6.)

         The claims at issue in the instant motion are the following: (1) three federal claims under 42 U.S.C. § 1983 for violation of Wadga's Fourth Amendment rights in connection with his arrests in October 2014 and December 2014 (see FAC ¶¶ 134(a), 143(e), 143(g)) ("Third and Fifth Claims"); (2) a federal claim under 42 U.S.C. § 1983 for violation of the "Doctrine of Unconstitutional Conditions" ("Ninth Claim") (see id. ¶¶ 159-162); (3) a state claim for "false arrest" ("Eleventh Claim") (see id. ¶¶ 167-170); (4) a state claim for "false imprisonment" ("Twelfth Claim") (see id. ¶¶ 171-174); (5) a state claim for invasion of privacy ("Thirteenth Claim") (see id. ¶¶ 175-182); (6) a state claim for negligence ("Fourteenth Claim") (see id. ¶¶ 183-187); (7) a state claim for violation of civil rights under § 52.1(b) of the California Civil Code, in connection with the December arrest ("Fifteenth Claim") (see id. ¶¶ 188-193); and (8) a state claim for violation of civil rights under § 52.1(b) of the California Civil Code, based on "patterns and policies of conduct" ("Sixteenth Claim") (see id. ¶¶ 194-198).

         LEGAL STANDARD

         In contrast to Rule 12(b) of the Federal Rules of Civil Procedure, which provides for the filing of a motion to dismiss prior to the filing of an answer, Rule 12(c) provides that “[a]fter the pleadings are closed[, ] . . . a party may move for judgment on the pleadings.” See Fed.R.Civ.P. 12(c). "The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is the time of filing.” See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). As the motions are “functionally identical, ” federal courts, in considering motions under Rule 12(c) that are based on an asserted failure to state a claim, apply the same analysis as that applicable to motions under Rule 12(b)(6). See id.

         Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” See id. Nonetheless, “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.” See id. (internal quotation, citation, and alteration omitted).

         In analyzing a motion to dismiss, a district court must accept as true all material factual allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).[2] “To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted).

         DISCUSSION

         As discussed below, defendants challenge Wagda's Third and Fifth Claims, his Ninth Claim, and his Eleventh through Sixteenth Claims. The Court addresses each challenged claim in turn.

         A. Third and Fifth Claims: Fourth Amendment

         Defendants challenge Wagda's Fourth Amendment claims, which are set forth in Wagda's Third Claim (see FAC ¶ 134(a)) and his Fifth Claim (see id. ¶ 143(e), (g)), and arise, respectively, out of his October arrest and his December arrest.

         As noted in the October 24 Order, to state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         "An officer's liability under section 1983 is predicated on his integral participation in the alleged violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (internal quotation and citation omitted). "Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability." Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). Rather, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677.

         1. Booking Wagda into MDF in October 2014 (FAC ¶ 134(a))

         In his Third Claim, Wagda alleges Jimenez and Neabeack violated his Fourth Amendment rights in connection with his October arrest, by "[b]ooking [him] into MDF instead of citing and releasing him, motivated by retaliatory animus." (See FAC ¶ 134(a); see also id. ¶ 38.) Wagda "concedes this Fourth Amendment claim, " which he describes as "synonymous" with his "First Amendment retaliation claim" (see Pl.'s Opposition to MJP ("Opp'n") at 6:10-11), and, consequently, Wadga's Third Claim is DISMISSED.

         2. Booking Wagda into MDF in December 2014 (FAC ¶ 143(e))

         In his Fifth Claim, Wagda alleges Jimenez, Rossberg, Neabeack, and Stapleton violated his Fourth Amendment rights in connection with his December arrest, by "[b]ooking [him] into MDF instead of citing and releasing him, in retaliation for his exercise of his Fifth Amendment right to remain silent and his Fourth Amendment right to require a warrant for a blood draw." (See FAC ¶ 143(e); see also Opp'n at 6:13 (characterizing claim as "Fourth Amendment retaliation claim").)

         The Court has already dismissed defendants Jimenez, Neabeack, and Stapleton from the above-referenced claim, for the reason that the allegations are insufficient to plead their participation or involvement in the alleged misconduct. See October 24 Order at 18-19.

         Turning to Rossberg, the Court finds the claim is not cognizable as a Fourth Amendment violation, [3] other than under the doctrine of unconstitutional conditions, on which Wagda's Ninth Claim, alleging the same conduct, is based. See infra Part B. Neither of the cases on which Wagda relies recognizes a separate claim for retaliation under the Fourth Amendment, see Birchfield v. North Dakota, 136 S.Ct. 2160 (2016); Lebron v. Sec'y, Fla. Dep't of Children & Families, 710 F.3d 1202 (11th Cir. 2013), let alone where such a claim is duplicative of a claim brought under the doctrine of unconstitutional conditions.

         Accordingly, to the extent Wagda's Fifth Claim is based on the allegations in ¶ 143(e), the claim is DISMISSED without further leave to amend. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 2004) (holding leave to amend need not be granted where amendment of complaint would "constitute[] an exercise in futility") (internal quotation and citation omitted).

         3. Ordering blood draw (FAC ¶ 143(g))

         In his Fifth Claim, Wagda alleges Jimenez, Rossberg, Neabeack, and Stapleton violated his Fourth Amendment rights in connection with his December arrest, by "[o]rdering [a] . . . blood draw . . . in bad faith reliance upon a constitutionally defective, unlawfully issued search warrant procured by means of a false and misleading affidavit." (See FAC ¶ 143(g).) In particular, Wagda alleges, Rossberg submitted an affidavit "containing numerous material misrepresentations and omissions" (see id. ¶ 96) concerning his speed, pulse rate measurements, and ability to make decisions and answer questions (see id. ¶¶ 97-103).[4]

         "A search warrant, to be valid, must be supported by an affidavit establishing probable cause." See United States v. Stanert, 762 F.2d 775, 778 (9th Cir. 1985) (holding court, in determining validity of warrant, "is limited to the information and circumstances contained within the four corners of the . . . affidavit"). In assessing whether probable cause exists, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed." Id. at 238-39 (alteration in original) (internal quotation and citation omitted).

         A facial showing of probable cause may, however, be challenged. In particular, government investigators can be held "liable for violating the Fourth Amendment when they submit false and material information in a warrant affidavit." See Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). Where a claim is based on such "judicial deception, " the plaintiff is required to show: (1) the affidavit "contained misrepresentations or omissions material to the finding of probable cause"; and (2) "the misrepresentations or omissions were made intentionally or with reckless disregard for the truth." See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). To assess the materiality of a false statement or misleading omission, the district court must determine "whether the affidavit, once corrected and supplemented, would provide a magistrate with a substantial basis for concluding that probable cause existed." See Stanert, 762 F.2d at 782. "If probable cause remains after amendment, then no constitutional error has occurred." Bravo, 665 F.3d at 1084.

         The FAC alleges Rossberg arrested Wagda for driving under the influence of drugs ("DUI") in violation of § 23152(e) of the California Vehicle Code, and that Wagda was subsequently charged with said violation.[5] Pursuant to § 23152, "[i]t is unlawful for a person who is under the influence of any drug to drive a vehicle." Cal. Veh. Code § 23152(e). "To be under the influence within the meaning of [§ 23152], the . . . drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties." Espinoza v. Shiomoto, 10 Cal.App. 5th 85, 101-02 (2017) (internal quotation and citation omitted).

         The Court has already dismissed defendants Jimenez, Neabeack, and Stapleton from the above-referenced claim, for the reason that the allegations are insufficient to plead their participation or involvement in the alleged misconduct. See October 24 Order at 18-19. As to Rossberg, the Court finds the claim is, as discussed below, also subject to dismissal.

         Rossberg's affidavit states, inter alia, that: (1) prior to Wagda's arrest, Rossberg noticed Wagda had dilated eyes and a "sweaty look to his face, " appeared "nervous and jittery, " and was "hyper attentive" (see SW/Aff. at 2); (2) prior to Wagda's arrest, Wagda refused "to perform Field Sobriety Tests" ("FSTs") (see id.) (3) prior to Wagda's arrest, a records check showed Wagda had been arrested "recently" for being under the influence of a controlled substance, which arrest, Wagda told Rossberg, was for DUI and charges were pending (see id.); (4) at the police station, after Wagda's arrest, Rossberg saw Wagda's eyelids "twitching rapidly" (see id.); and (5) Rossberg has "participated in or conducted no less than 250 DUI investigations, " has "attended several drug influence classes, " and is a "Drug Recognition Expert" (see id.).

         The Court finds the affidavit contains statements sufficient to establish a "fair probability" that evidence of the offense for which Wagda was arrested would be found in Wagda's blood, [6] thus providing the magistrate with the requisite "substantial basis" for concluding there was probable cause for the blood draw. See Gates, 462 U.S. at 238- 39; see also Espinoza, 10 Cal.App. 5th at 102, 103 (holding, with respect to § 23152, "[e]vidence of actual impairment may include the driver's appearance" (internal quotation and citation omitted); further holding "refusal to submit to [FSTs] is properly treated as evidence of consciousness of guilt" (emphasis omitted)); People v. Jimenez, 242 Cal.App.4th 1337, 1346, 1355 (2015) (listing dilated pupils, alertness, and being nervous and jittery among symptoms relevant to driving under influence of drugs); People v. Bui, 86 Cal.App.4th 1187, 1191-92 (2001) (listing eyelid tremors among symptoms relevant to driving under influence of drugs); People v. Henderson, 2009 WL 2050241, *4, 7 (Cal.Ct.App. 2009) (listing sweating among symptoms relevant to driving under influence of drugs); People v. Aho, 166 Cal.App.3d 984, 992 (1985) (holding suspect's "narcotic arrest record" and officer's "training and experience as a narcotics investigator" relevant to magistrate's determination of probable cause for search warrant).

         Although Wadga argues that the truth of the affidavit "remains disputed" (see Pl.'s Opposition to County Defs.' Supplemental Brief in Support of MJP ("Opp'n to Supp. Br.") at 2:25, 3:16), the FAC, while challenging a number of other statements (see FAC ¶¶ 97- 103), contains no such challenge to any of the above-referenced statements. Indeed, the FAC contains no mention of Rossberg's statements regarding Wagda's appearance and, as to the FSTs, alleges that Rossberg "ordered" Wagda to perform FSTs (see id. ¶ 83), that Wagda responded, "I decline any sobriety tests right now" (see id.), and that Rossberg retaliated against him in part due to his "lawful decision[] not to consent to FSTs" (see id. ¶ 106).[7] In addition, as to the prior arrest, the FAC alleges Wagda told Rossberg he "had been arrested previously for DUI" (see id. ¶ 69), that such arrest was based on "an allegation" of drug use (see id. ¶ 72), that he had "an open court case" (see id. ¶ 71), and that he was "under prosecution right now" (see id. ¶ 73). Further, although Wagda criticizes the affidavit for not including more specific information about Rossberg's experience with drug-related DUIs, he does not contest Rossberg's description of his experience or his certification as a Drug Recognition Expert.[8]

         As set forth above, where, as here, a plaintiff brings a claim based on judicial deception, it is incumbent upon him to show the challenged affidavit "contained misrepresentations or omissions material to the finding of probable cause." See Bravo, 665 F.3d at 1083. Wagda argues that, even if the above-referenced statements establish probable cause, the warrant would still fail "because the [a]ffidavit contains only false statements to justify the initial traffic stop" for speeding (see Opp'n to Supp. Br. at 3). As set forth below, the Court is unpersuaded.

         First, the FAC lacks factual allegations sufficient to show an affirmative misrepresentation. Wagda's allegation that the "dashcam recordings show ongoing radar system sounds apparently inconsistent with the purported radar lock" (see FAC ¶ 97) is wholly conclusory in nature, and his allegation that the "data recording from Officer Rossberg's patrol vehicle . . . shows no radar readings . . . above '0 MPH'" (see id.) is made without any information as to how and when such "readings" were determined and, in any event, what such circumstances signify. Similarly, Wagda's contention, which is not pleaded in the FAC, that Rossberg misrepresented that his police car's radar "had been calibrated in Aug. 2014" (see Opp'n at 8:8-9 (quoting SW/Aff. at 2)) is no more than speculative, as it is based solely on his assertion that Rossberg did not include that statement in his police report (see id. at 8:9-10). Tellingly, Wagda does not dispute he was going 41 m.p.h. or otherwise speeding, whether based on the "posted speed limit" of 30 m.p.h. (see FAC ¶ 66) or the "85th percentile speed" of 34.58 m.p.h. (see id.).[9]

         Next, to the extent Wagda relies on alleged omissions from the affidavit, his challenge fares no better, as only one of those omissions is arguably material, the expiration of the speed survey, [10] and, as to that omission, the FAC contains no allegation to support an inference that it was "made intentionally or with reckless disregard for the truth." See Bravo, 665 F.3d at 1083. Indeed, the FAC alleges that Rossberg testified "he did not know when the last speed survey was conducted." (See FAC ¶ 66.) Moreover, Wagda has not pled facts to support his conclusion that the roadway constituted a speed trap, see Cal. Veh. Code § 40802 (defining "speed trap") or, more specifically, that a five-year expiration date applied to the survey, see id. § 40802(a)(2) (setting forth circumstances under which five-year period applies), id. § 40802(c)(2)(B)(i)(I), (II) (setting forth circumstances under which seven-year and ten-year periods apply). In any event, even if the roadway constituted a speed trap, such circumstance would not invalidate the stop in the instant case. See People v. Hardacre, 116 Cal.App.4th 1292, 1300-01 (2004) (holding reasonable suspicion supported stop where facts and circumstances known to officer at time indicated defendant was exceeding posted speed limit, notwithstanding later finding portion of road in question constituted speed trap); see also Cal. Veh. Code ยง 40804(a) (providing sole penalty for violation of speed trap law is preclusion of officer's testimony and is applicable only where prosecution is for offense "involving the ...


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