United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
THOMAS J. WHELAN UNITED STATES DISTRICT JUDGE
before the Court is a motion to dismiss or for summary
judgment filed by Defendants Gerardo Hernandez, Jodan
Johnson, David Faatoalia, Joseph Bowen, and John Kulakowski.
[Doc. 52.] The Court decides the matters on the papers
submitted and without oral argument pursuant to Civil Local
Rule 7.1(d)(1). For the reasons that follow, the Court
decides Defendants' motion pursuant to Fed.R.Civ.P.
12(b)(6) only and GRANTS IN PART AND DENIES IN PART the
Second Amended Complaint (“SAC”) alleges the
August 9, 2017, Plaintiff Alton Jones entered the Border
Field State Park and went “for a short run” on
the paved road that is directly adjacent to the U.S.-Mexico
border fence. (SAC [Doc. 38] ¶¶ 1-26.) The
SAC affirmatively alleges that there were no signs of any
kind whatsoever to indicate to Mr. Jones that this road was
off-limits to pedestrians. (See Id. [Doc. 38] ¶
26 (“Neither the sand path nor the paved road had any
barriers, signs, or other visible indicators that the paved
road was restricted to pedestrians.”).)
ran up the paved road until he encountered a Border Patrol
vehicle driving towards him at a rapid rate of speed.
(SAC [Doc. 38] ¶ 27.) The SAC is silent as to
what happened during this initial encounter. (See
id.) At this point, Jones initiated a conversation with
his wife over the phone. (See Id. (“Mr. Jones
noticed a Border Patrol vehicle up ahead moving quickly
downhill toward him. He phoned his wife and told her,
referring to Defendant Hernandez, “I think that Border
Patrol agent is flying down the hill toward me for some
reason.”).) The SAC is silent as to any encounter with
this first Border Patrol vehicle.
point, the SAC alleges that a second Border Patrol vehicle
appeared, pulling up alongside Jones. (SAC [Doc. 38]
¶ 28.) Jones allegedly removed “one of his iPhone
earphones” to talk to the second Border Patrol agent,
Defendant Johnson. (See id.) By implication, up
until this point Jones had kept the earphones in both of his
ears in order to maintain the phone conversation. (See
id.) This time, though, Jones spoke to one of the
agents, telling him “that he intended only to run up
the hill and back down to the beach.” (Id.)
Nothing more appears in the SAC as to any interaction with
Johnson at this point.
next sentence of the SAC reads: “[s]ome time
thereafter, a Border Patrol agent in another vehicle (upon
information and belief, Defendant Gerardo Hernandez)
intercepted Mr. Jones, exited his patrol vehicle, and shouted
to Mr. Jones to ‘[t]urn the fuck around.' Offended,
Mr. Jones replied, ‘[w]hat's your fucking
problem?' ” (SAC [Doc. 38] ¶ 29.)
After this confrontation (during which time Jones was still
on the phone, presumably through the earbuds), Jones
“immediately” began to run in the other
direction, away from the agent. (Id. [Doc. 38]
¶¶ 30, 32.)
Jones noticed still more agents coming towards him-on quad
bikes, and in a third vehicle. (SAC [Doc. 38] ¶
31.) Yet, despite all of this, he decided to continue
running-and to remain on the phone. (Id. [Doc. 38]
¶ 32.) He allegedly did not stop to speak with the
agents. Nor did he deviate from the paved road, back onto the
trail. (See Id. [Doc. 38] ¶¶ 33-34.)
According to the SAC, Jones “fear[ed] that if he ran
down from the paved road onto the trail, the agents on the
quad bikes would collide with him or use their
weapons.” (Id. [Doc. 38] ¶ 33.) Instead,
Jones continued running back down the paved road, at which
point Defendants Hernandez, Johnson, Faatoalia, and Bowen
subdued him. (Id. [Doc. 38] ¶¶ 35-36.)
According to the SAC, “Jones was pummeled to the
ground. One or more of the Individual Defendants hit Mr.
Jones on his back and around his neck.” (Id.
[Doc. 38] ¶ 35.) “Jones tried to put his hands
behind his back and felt someone's knee on his
spine.” (Id.) “His arms were twisted up
hard behind him, causing him severe pain.”
United States has filed a cross-complaint alleging that Agent
Johnson was injured during this altercation.
(Cross-Complaint [Doc. 19] ¶¶
1-33.) The SAC alleges that “[a]t no point
did [Jones] resist the agents or react with force of his
own” and leaves it ambiguous as to whether any
government agents were injured during their encounter with
Jones. (SAC [Doc. 38] ¶¶ 36-49.) It does
make the allegations that “Mr. Jones did not assault
any Defendant or resist arrest” and that “[t]he
accusation that Mr. Jones was responsible for any agent's
broken ankle was false.” (SAC [Doc. 38]
¶¶ 38, 49.)
to the SAC, agents arrested Mr. Jones for assaulting a
federal agent and left him in a hot car with the heater on
for a period of fifteen or twenty minutes. (SAC
[Doc. 38] ¶¶ 37-47.) Agent Kulakowski then drove
Jones to the Imperial Beach Border Patrol Station via a dirt
path. The car's radio played “very loud rap
music” and the agent wore leather gloves, causing Jones
to feel “helpless and extremely frightened[, ]”
worrying that “he was being taken somewhere to be
beaten up.” (See Id. [Doc. 38] ¶¶
48-52.) The SAC does not allege that Jones was ever taken
anywhere to be beaten. Rather, it alleges that the route was
an “inexplicable and unnecessary driving detour.”
(See Id. [Doc. 38] ¶ 53.) Kulakowski then
searched Jones incident to arrest at the station.
(Id. [Doc. 38] ¶ 54.)
was kept until the next morning at the Imperial Beach Border
Patrol Station-a total of about seventeen hours.
(SAC [Doc. 38] ¶¶ 58-65.) He asked for an
attorney and for medical treatment, but was not provided with
either. (Id.) When he “banged on his cell door
at various intervals[, ]” agents allegedly
“threatened him with ‘the chair' ”-an
ostensible punishment method by which “a detainee is
strapped to a chair with a hood or spit bag placed over his
head.” (Id. [Doc. 38] ¶ 61.) It is not
clear how Jones came to know of this alleged method of
punishment, but the SAC does not allege that he was subjected
to it. Explanations for Jones' detention allegedly
changed during his overnight period of confinement.
(Id. [Doc. 38] ¶ 62.) According to the SAC,
“[t]he lack of clarity or explanation for his arrest
and detention caused Mr. Jones extreme anguish.”
(Id.) This “extreme anguish was compounded by
the acute anxiety Mr. Jones felt at being separated from his
wife and young child, and upon overhearing Border Patrol
agents . . . laughing at him while he sat in his cell.”
(Id. [Doc. 38] ¶ 63.) Jones was released the
next morning without charge.
states eleven causes of action-four against all five
individual Defendants: (1) violation of the Fourth Amendment
through unconstitutional detention and arrest pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971); (2) violation of the
Fourth Amendment through use of excessive force pursuant to
Bivens; (3) violation of the Fourth Amendment
through unconstitutional search pursuant to Bivens;
(4) retaliation in violation of the First Amendment pursuant
to Bivens. (SAC [Doc. 38] ¶¶
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
Court must dismiss a cause of action for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the
legal sufficiency of the complaint. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). A complaint may be dismissed as a matter of law either
for lack of a cognizable legal theory or for insufficient
facts under a cognizable theory. Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In
ruling on the motion, a court must “accept all material
allegations of fact as true and construe the complaint in a
light most favorable to the non-moving party.”
Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). The Supreme Court has
interpreted this rule to mean that “[f]actual
allegations must be enough to raise a right to relief above
the speculative level[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The allegations in
the complaint must “contain sufficient factual matter,
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).
allegations in the complaint are assumed true, but a court is
not required to accept legal conclusions couched as facts,
unwarranted deductions, or unreasonable inferences. See
Papasan v. Allain, 478 U.S. 265, 286 (1986);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001), opinion amended on denial of
reh'g, 275 F.3d 1187 (9th Cir. 2001).
Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56
judgment is appropriate under Rule 56 when the moving party
demonstrates the absence of a genuine issue of material fact
and entitlement to judgment as a matter of law. See
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A fact is material when, under the governing
substantive law, it could affect the outcome of the case.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute about a material fact is genuine if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
seeking summary judgment always bears the initial burden of
establishing the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The moving party can
satisfy this “burden of production” in two ways:
(1) by presenting evidence that negates an essential element
of the nonmoving party's case; or (2) by demonstrating
that the nonmoving party failed to make a showing sufficient
to establish an element essential to that party's case on
which that party will bear the burden of proof at trial.
See id. at 322-25; Nissan Fire & Marine Ins.
Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102-03
(9th Cir. 2000) (explaining relevant burden-shifting
terminology). “Disputes over irrelevant or unnecessary
facts will not preclude a grant of summary judgment.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
district court may limit its review to the documents
submitted for the purpose of summary judgment and those parts
of the record specifically referenced therein.”
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1030 (9th Cir. 2001). Therefore, the Court is not
obligated “to scour the record in search of a genuine
issue of triable fact . . . .” Keenan v.
Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing
Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th
moving party meets its initial burden of production on the
motion, the nonmoving party cannot defeat summary judgment
merely by demonstrating “that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp.
v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995)
(citing Anderson, 477 U.S. at 252) (“The mere
existence of a scintilla of evidence in support of the
non-moving party's position is not sufficient.”).
Rather, the nonmoving party must “go beyond the
pleadings and by her own affidavits, or by ‘the
depositions, answers to interrogatories, and admissions on
file, ' designate ‘specific facts showing that
there is a genuine issue for trial.' ”
Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56).
making this determination, the court must view all inferences
drawn from the underlying facts in the light most favorable
to the nonmoving party. See Matsushita, 475 U.S. at
587. “Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge” ruling
on a motion for summary judgment. Anderson, 477 U.S.
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.' ” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “Qualified immunity balances two
important interests-the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Id. “Public officials are immune from suit
under 42 U.S.C. § 1983 unless they have ‘violated
a statutory or constitutional right that was clearly
established at the time of the challenged conduct.'
” City & Cnty. of San Francisco, Calif. v.
Sheehan, 135 S.Ct. 1765, 1774 (2015). “In other
words, [qualified] immunity protects ‘all but the
plainly incompetent or those who knowingly violate the
law.' ” White v. Pauly, 137 S.Ct. 548, 551
(2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308
(2015)) (internal quotation omitted).
immunity is ‘an immunity from suit rather than a mere
defense to liability.' ” Pearson, 555 U.S.
at 237 (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). As such, “ ‘it is effectively lost
if a case is erroneously permitted to go to trial.'
” Id. at 231 (quoting Mitchell, 472
U.S. at 526). “Indeed, [the Supreme Court has] made
clear that the ‘driving force' behind creation of
the qualified immunity doctrine was a desire to ensure that
‘insubstantial claims against government officials be
resolved prior to discovery.' ” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 640
n.2 (1983)). “Accordingly, ‘[the Supreme Court
has] repeatedly stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.'
” Id. (quoting Hunter v. Bryant, 502
U.S. 224, 227 (1991)).
Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court mandated a two-step procedure for analyzing the
qualified immunity defense. First, the court was to decide
whether the facts that a plaintiff has alleged made out a
violation of a constitutional right, and second if so, the
court was to decide whether the right was clearly established
at the time. See Pearson, 555 U.S. at 232
(referencing Saucier, 533 U.S. at 201). The Supreme
Court later rejected rigid, mandatory adherence to this
approach in Pearson. 533 U.S. at 237-42. The
Pearson Court emphasized flexibility, especially
when qualified immunity is asserted early in
litigation-noting that “when qualified immunity is
asserted at the pleading stage, the precise factual basis for
the plaintiff's claim or claims may be hard to identify,
” 555 U.S. at 238-39, and that “[t]here are
circumstances in which the first step of the Saucier
procedure may create a risk of bad decisionmaking.”
Id. at 239. In short, sometimes it is better to
reach the issue of whether any right that does exist is
clearly established before reaching the question of whether
the right exists in the first place. See id. This is
consistent with “the general rule of constitutional
avoidance”-avoiding constitutional questions if there
is another way of deciding a case. See id. at 241.
Notably, the Court emphasized that “Saucier's
two-step protocol ‘disserve[s] the purpose of qualified
immunity' when it ‘forces the parties to endure
additional burdens of suit- such as the costs of litigating
constitutional questions and delays attributable to resolving
them-when the suit otherwise could be disposed of more
readily.' ” Id. at 237 (quoting Brief for
National Association of Criminal Defense Lawyers as Amicus
order to overcome qualified immunity at the pleading stage, a
plaintiff must plead facts to overcome both prongs of the
immunity: “ ‘(1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established' at the time of the challenged
conduct.' ” See Wood v. Moss, 134 S.Ct.
2056, 2066-67 (2014) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 735 (2011)). However, in the Ninth Circuit,
“[w]hen . . . defendants assert qualified immunity in a
motion to dismiss under Rule 12(b)(6), ‘dismissal is
not appropriate unless [the Court] can determine, based on
the complaint itself, that qualified immunity applies.'
” O'Brien v. Welty, 818 F.3d 920, 936 (9th
Cir. 2016) (quoting Groten v. California, 251 F.3d
844, 851 (9th Cir. 2001)).
Deciding a Motion for Summary Judgment at This Stage ...