United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING
DEFENDANT DEOL LAKHWINDER'S MOTION FOR SUMMARY JUDGMENT
(ECF Nos. 16, 19, 22) OBJECTIONS DUE WITHIN FOURTEEN
Dean Johnson and Lori Johnson (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.)
reviewed the record, the Court finds this matter suitable for
decision without oral argument. See Local Rule
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.).
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.)
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.
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.
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.
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
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
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
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.
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,
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.
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.
JUDGMENT LEGAL STANDARD
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.
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).
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).