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Jones v. Hernandez

United States District Court, S.D. California

November 9, 2017

ALTON JONES, Plaintiff,



         Pending 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 motion.

         I. Background

         The Second Amended Complaint (“SAC”) alleges the following facts.

         On 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.”).)

         Jones 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.

         At this 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.

         The 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.)

         By now, 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.” (Id.)

         The United States has filed a cross-complaint alleging that Agent Johnson was injured during this altercation. (Cross-Complaint [Doc. 19] ¶¶ 1-33.)[1] 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.)

         According 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.)

         Jones 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.

         The SAC 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] ¶¶ 85-91.)

         II. Legal Standards

         A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

         The 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. 2007).

         A 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).

         Well-pled 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).

         B. Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56

         Summary 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.

         A party 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).

         “[T]he 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 Cir. 1995)).

         If the 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).

         When 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. at 255.

         C. Qualified Immunity

         “The 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).

         “Qualified 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)).

         In 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 Curiae 30).

         In 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)).

         III. Discussion

         A. Deciding a Motion for Summary Judgment at This Stage ...

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