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Lull v. County of Sacramento

United States District Court, E.D. California

December 19, 2019

CHRISTOPHER LULL, Plaintiff,
v.
COUNTY OF SACRAMENTO, CORY STEWART, MICHAEL DOANE, and DOES 1 to 100, Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         This 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.

         Defendants 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[1] 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 force.”).

         Defendant 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).[2] ECF No. 42.

         II. Legal Standards

         Federal 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).

         III. Discussion

         Stewart 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 dismissed.

         In 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.

         Here, 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.

         As previously summarized by the court, plaintiff alleges that:

he was loading a Kayak onto a car parked in a restricted area when he was ...

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