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Johnson v. City of Atwater

United States District Court, E.D. California

September 3, 2019

RICHARD DEAN JOHNSON, et al., Plaintiffs,
CITY OF ATWATER, et al., Defendants. CITY OF ATWATER, Counterclaimant,
RICHARD DEAN JOHNSON, et al, Counter-Defendants.


         Richard Dean Johnson and Lori Johnson[1] (collectively “Plaintiffs”) filed this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Lakhwinder Deol's motion for summary judgment which has been referred to the undersigned. (ECF Nos. 16, 21.)

         Having reviewed the record, the Court finds this matter suitable for decision without oral argument. See Local Rule 230(g).



         Plaintiffs have been engaged in a longstanding and ongoing dispute with the City of Atwater (“the City”) regarding water service and have filed several actions against the City and various city officials. See Johnson v. City of Atwater, no. 1:16-cv-01636-AWI-SAB (E.D. Cal.); Johnson v. City of Atwater, no. 1:19-cv-00237-DAD-SAB (E.D. Cal.).

         On July 8, 2018, Plaintiffs filed the complaint in this matter against the City of Atwater, Samuel Joseph, Jim Price, and Lakhwinder Deol (collectively “Defendants”) alleging violations of the First, Fourth, and Fourteenth Amendments and state law claims. (ECF Nos. 1.) On September 4, 2018, Defendants City, Joseph and Price filed an answer; and Defendants City and Lakhwinder Deol filed an answer and Defendant City filed a counterclaim against Plaintiffs alleging breach of contract and violation of California Civil Code section 1882.1 et seq. (ECF Nos. 8, 9.) On October 2, 2018, the scheduling order setting all deadlines in this action issued. (ECF No. 16.)

         On July 22, 2019, Defendant Deol Lakhwinder filed a motion for summary judgment. (ECF No. 16.) Plaintiffs filed an opposition on August 20, 2019. (ECF No. 19.) On August 27, 2019, the matter was referred to the undersigned for the preparation of findings and recommendations. (ECF No. 21.) Defendant Deol filed a reply on August 28, 2019. (ECF No. 22.)



         Plaintiffs have had difficulty making their water payments, concerns regarding how their bill was calculated, and dispute some of the charges on their billing. They attempted to pay their water bill but the City refused to accept payment. Plaintiffs have been without access to water since March of 2017.

         The United Nations General Assembly has resolved that the right to water and sanitation is an integral component of the realization of all human rights. California has recognized that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking and sanitation purposes. Governor Brown enacted the Low Water Rate Assistance Program to develop a plan to fund and implement a program to ensure that all California residents have access to water.

         Twenty-six percent of the City's residents fall below the poverty line. There is assistance provided to low income residents for electric and gas utilities, but not for water, sewer, or garbage. The lack of an affordable water program has caused Plaintiffs' difficulty in making some of their utility payments.

         Plaintiffs have resided at 1675 Drakeley Avenue in Atwater since 2005. In 2013, Plaintiffs began to dispute some charges on their water bill and fell behind in their payments. On July 27, 2016, Plaintiffs entered into a payment extension agreement with the City. Defendant Price assured Plaintiffs that the City would work with them in their attempts to comply with the agreement. Plaintiffs again fell behind on their water payments and their water service was terminated in March 2017.

         Plaintiffs attempted to resolve the issue with Defendant Price shortly after their water service was disconnected, but Defendant Price refused to meet with them. On September 6 and 7, Plaintiffs went to City Hall to pay the outstanding charges and have the water service at their home reconnected. City staff, under the direction of Defendant Doel, refused to accept any money from Richard and their water service has not been restored.

         On October 9, 2017, Richard attended a city council meeting. While he was speaking, Defendant Price violated his First Amendment rights by interrupting Richard and refusing to allow him to continue speaking. Other members of the public were allowed five minutes each to address the council during the public comment period. Richard had only been speaking for one minute when he was stopped. Richard verbally protested as he turned to walk out of the council chambers.

         Defendant Price followed Richard and arrested him for a misdemeanor. During the arrest, Defendant Joseph twisted Richard's arm, causing damage to his shoulder and bruises. Richard was held for approximately thirteen hours and was released the next day at approximately 6:00 a.m. Richard was charged with a violation of section 403 of the California Penal Code and the c harges were dismissed by the prosecutor on March 6, 2018.

         Defendant City is a general law city organized under the California Government Code. The City has many departments, including the Atwater Police Department and Finance Department. The City Council is a legislative body of the City under the leadership of the mayor, Jim Price. Samuel Joseph is the former Police Chief for the City. Lakhwinder Deol is the finance director and, under her direction, staff refused to accept any payments from Plaintiffs and refused to restore running water to their home.

         Plaintiffs bring three causes of action in the complaint: 1) right to be secure from unreasonable false arrest and excessive force in violation of the Fourth Amendment; 2) interference by threat, intimidation, or coercion in violation of the Bane Act, California Civil Code section 52.1; and 3) denial of freedom of speech and the right to address grievances in violation of the First and Fourteenth Amendments. Plaintiffs are seeking monetary damages and injunctive relief.



         Any party may move for summary judgment, and the court shall grant summary judgment if the movant 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) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case. . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322.

         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. Matsushita Elec. I ndus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).


         UNDISPUTED ...

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