United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
case was before the court on July 17, 2019, for hearing on
defendant Cory Stewart's motion for reconsideration of
the court's order granting in part and denying in part
defendants' motion to dismiss plaintiff's second
amended complaint. ECF No. 42. Attorney Wendy Motooka
appeared on behalf of defendant Stewart, and plaintiff
appeared pro se. For the following reasons, it is recommended
that defendant's motion be denied.
action proceeds on plaintiff's second amended complaint.
ECF No. 22. Plaintiff alleges that on July 17, 2016, he
visited the River Bend Park beach area in Rancho Cordova,
California. Id. at 3. While loading a kayak onto a
vehicle parked in a restricted area, plaintiff was confronted
by defendant Cory Stewart (hereinafter
“Stewart”). Id. Stewart made several
requests for plaintiff to produce identification. These
requests were met with criticism and condescending remarks,
as well as a refusal to produce identification. Id.
at 4, 8. Ultimately, plaintiff was arrested and charged with
a violation of California Penal Code § 148(a)(1)
(resisting, delaying, or obstructing a peace officer).
Id. at 5; ECF No. 24-2 at 43. Plaintiff's second
amended complaint alleged claims for violation of
plaintiff's rights under the First, Fourth, and
Fourteenth Amendments, and violation of California's Bane
Act. ECF No. 22 at 5-9.
moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing, among other things, that
plaintiff's First Amendment retaliatory arrest claim
failed because Stewart had probable cause to arrest
plaintiff. ECF No. 24. Defendants' motion was denied as
to plaintiff's First Amendment retaliation claim and
related Bane Act claim and granted as to his Fourth and
Fourteenth Amendment claims. ECF No. 37 at 2. Of significance
here, the court rejected Stewart's argument that
plaintiff's “no contest” plea to violating
California Penal Code 148(a)(1)-which establishes probable
cause for plaintiff's arrest- foreclosed his retaliatory
arrest claim. Relying on Ford v. City of Yakima, 706
F.3d 1188 (9th Cir. 2013) and Dietich v. John
Ascuaga's Nugget, 548 F.3d 892 (9th Cir. 2008), the
court held that plaintiff could state a First Amendment
retaliation claim even if his arrest was supported by
probable cause. ECF No. 34 at 9; see Ford, 706 F.3d
at 1196 (“police action motivated by retaliatory animus
[is] unlawful, even if probable cause existed for [the]
action.”); Dietich, 548 F.3d at 901 (the fact
that a defendant officer “had probable cause is not
dispositive. But it undoubtedly has high probative
moves for reconsideration of that holding, arguing that the
Ninth Circuit's holding in Ford is no longer
controlling in light of the Supreme Court's recent
decision in Nieves v. Bartlett, 139 S.Ct. 1715
(2019). ECF No. 42.
Rule of Civil Procedure 60 provides that a court may relieve
a party of a final judgment or order for mistake,
inadvertence, surprise, or excusable neglect. Fed.R.Civ.P.
60(b) (1). “Reconsideration is appropriate if the
district court (1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision
was manifestly unjust, or (3) if there is an intervening
change in controlling law.” School Dist. No. 1J v.
AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Further, Local Rule 230(j) requires that a motion for
reconsideration state, “what new or different facts or
circumstances are claimed to exist which did not exist or
were not shown upon such prior motion, or what other grounds
exist for the motion, ” and “why the facts or
circumstances were not shown at the time of the prior
motion.” E.D. Cal. L.R. 230(j)(3)-(4).
argues that under the Supreme Court's decision in
Nieves, plaintiff is required to allege the absence
of probable cause to state a First Amendment retaliatory
arrest claim. He contends that because plaintiff pled no
contest to violating section California Penal Code §
148(a), probable cause for his arrest is established.
Accordingly, Stewart argues that plaintiff's First
Amendment retaliatory arrest and Bane Act claims must be
Nieves, the Supreme Court held that a plaintiff
bringing a First Amendment retaliatory arrest claim must
generally “plead and prove the absence of probable
cause.” 139 S.Ct. at 1723. The court, however, carved
out a narrow exception to the “no-probable-cause
requirement.” Under the exception, a plaintiff is not
required to establish the absence of probable cause if he
“presents objective evidence that he was arrested when
otherwise similarly situated individuals not engaged in the
same sort of protected speech had not been.”
Id. at 1727.
it is doubtful that otherwise similarly situated individuals
who did not engage in protect speech have been arrested. The
facts as alleged by plaintiff are that he refused to present
identification but otherwise did nothing to physically impede
or obstruct the officer. Yet, plaintiff entered a plea of
“no contest” to resisting, delaying, or
obstructing a peace officer. Assuming that the no contest
plea establishes probable cause for his arrest, see
Dobson Med. Group, Inc. v. Midland Risk Ins. Co., 18
Fed.Appx. 578, 580 (9th Cir. 2001) (unpublished) (finding
that a conviction arising from a no contest plea established
guilt and superseded the question of whether there was
probable cause to arrest), the question remains whether other
individuals under the same circumstances pled in the
complaint but without making statements critical of the
officer have been arrested. Accepting plaintiff's
allegations as true, which the court must at this juncture,
there appears a reasonable possibility that the exception in
Nieves to the “no-probable-cause
requirement” will apply in this case.
previously summarized by the court, plaintiff alleges that:
he was loading a Kayak onto a car parked in a restricted area
when he was ...