Opinion
No. CV 98-6643-ER (EE)
November 3, 2000
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This report and recommendation is submitted to the Honorable Edward Rafeedie, United States District Judge, pursuant to 28 U.S C § 636. For the reasons discussed below, the magistrate judge recommends that summary judgment be granted in favor of defendants as to the malicious prosecution and Fourth Amendment claims and that the remaining claims be dismissed without leave to amend.
1. Introduction.
On May 26, 1999, plaintiffs Thambah Sundaram ("Dr. Sundaram") and Nalini Sundaram ("N Sundaram") filed a first amended complaint for damages ("FAC") pursuant to 42 U.S.C. § 1983, 1985(3), and 1986. At the time of the alleged events, Dr. Sundaram was the administrator of Shanthi. Health Foundation, Inc., which oversaw the Guadalupe Dental Clinic, Shanthi Foundation Clinic ("clinic"). (FAC at 2 ¶ 3.) The clinic is described as "a non-profit, low-cost provider of dental and medical care, and health education in the Santa Maria area." (Id.) Defendants are Dennis J. Balsamo, a Criminal Investigator II for the Santa Barbara County District Attorney's Office Bureau of Investigation, and Chuck Villanti, an employee of the State of California Board of Dental Examiners. (FAC at 2-3 ¶¶ 4-5.) Each defendant is sued in his individual capacity only. (Id.)
In their first claim for relief, styled "cause of action," plaintiffs allege a malicious prosecution/abuse of process claim against defendant Balsamo and assert violations of their First, Fourth, and Fourteenth Amendments rights under 42 U.S.C. § 1933. (FAC at 13-15 ¶¶ 12-19.)
In their second "cause of action," plaintiffs allege a false arrest/imprisonment and verbal abuse/harassment claim against both defendants and assert violations of their First, Fourth, and Fourteenth Amendments under 42 U.S.C. § 1983. (Id. at 15-17 ¶¶ 20-26 ) Specifically, plaintiffs allege that Dr. Sundaram was falsely arrested in retaliation for plaintiffs' protected political activity and speech and with an intent to discriminate against plaintiffs because of their ethnicity, race, and religion. (Id. at 15-16 ¶ 21.)
In their third "cause of action," plaintiffs allege that defendants conspired together in violation of plaintiffs' right to equal protection of the laws under 42 U.S.C. § 1985(3). (Id. at 18-19 ¶¶ 27-33.) In their fourth "cause of action," plaintiffs allege that defendants neglected to prevent the wrongs which they conspired to commit in violation of plaintiffs' First, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1986. (Id. at 19-20 ¶¶ 34-40.)
2. Procedural background.
On June 10, 1999, defendant Villanti filed a motion for summary judgment and, in the alternative, for summary adjudication of issues. The-motion was not supported by any evidence, and the magistrate judge accepted the plaintiffs' allegations as uncontroverted. The motion was timely opposed. After reviewing the parties' papers, the magistrate judge concluded that defendant Villanta. failed to meet his burden to show that he was immune from suit on the 42 U.S.C. § 1985(3) conspiracy claims under the intracorporate conspiracy doctrine and that plaintiff N. Sundaram lacks standing to assert a claim for false arrest, etc., based on the incident that took place on August 13, 1997. (Order Granting, in Part, Defendant Villanti's Motion, etc., at 5-13, filed July 19, 1999.)
On July 23, 1999, defendant Balsamo filed a motion for partial summary judgment ("Balsamo's Motion"). The motion was timely opposed. After reviewing the parties' papers, the magistrate judge concluded that defendant Balsamo is entitled to qualified immunity on the malicious prosecution and related conspiracy claims, that plaintiff N. Sundaram lacks standing to assert a claim of false arrest, and that plaintiffs cannot state a claim for verbal harassment under 42 U.S.C. § 1983. (Order Re: Defendant Balsamo's Notion for Partial Summary Judgment at 19, filed September 27, 1999.)
On June 20, 2000, defendant Villanti filed a second motion for summary judgment and/or summary adjudication of issues. A memorandum of points and authorities ("Villanti's MPA") was also filed in support of the motion On June 23, 2000, defendant Balsamo filed a notice joining in sections IV through VI of Villanti's MPA. Plaintiffs timely opposed the motion, and defendant Villanti timely filed a reply. The motion was subsequently taken under submission without oral argument pursuant to Local Rule 7.11.
In addition to addressing defendant Villanti's present motion, this report and recommendation incorporates the magistrate judge's prior findings and conclusions on defendants' previous summary judgment motions.
3. The uncontroverted and disputed issues of fact.
In May 1997, plaintiffs were in the process of moving the clinic from Guadalupe to Santa Maria when Guadalupe Police Chief Nartatez received a phone . . . call from Richard Hollis. who believed that plaintiffs were removing or stealing fixtures from the commercial space in Guadalupe where they were tenants (Balsamo's Motion for Partial Summary Judgment, filed July 23, 1999 ("Balsamos Motion") at 34, Declaration of Chris Nartatez ("Nartatez Decl.") ¶ 2.) Chief Nartatez went to the location and spoke with Dr. Sundaram about Hollis' phone call. (Id., Nartatez Decl. ¶ 3.) Outside the location was "a large flatbed truck loaded with various fixtures, and more fixtures scattered about near the entrance of the building" (Id., Nartatez Decl. ¶ 3.) Dr. Sundaram told Chief Nartatez that Dr. Sundaram "owned everything in the building including the sinks, toilets and cabinets, and that he intended to take all the property that he could `dismantle."' (Id., Nartatez Decl. ¶ 4.) Chief Nartatez did not attempt to stop plaintiffs, since lie did not know who owned the fixtures (Id.)
Copies of the declarations of Chief Nartatez and Assistant Deputy District Attorney Christie Schultz are also attached to Villanti's MPA.
The fixtures included "interior doors, wall cabinets, copper tubing for water, and what appeared to be the front lobby countertop." (Balsamo's Motion at 34, Nartatez Decl. ¶ 3.)
A month later, the building owner requested that the police department investigate the matter to see if any crime had been committed by plaintiffs when they removed the fixtures. (Id. at 35, Nartatez Decl. ¶ 7.) Chief Nartatez "referred the matter to the Santa Barbara County District Attorney's Office to avoid the appearance of a conflict of interest as [plaintiffs) had previously submitted a complaint against the Guadalupe Police Department." (Id.) He provided the district attorney's office with copies of plaintiffs' lease agreement and a list of the fixtures purportedly taken by plaintiffs and of the damages to the property as the result of the fixtures being removed. (Id.)
On July 17, 1997, Assistant District Attorney Christie Schultz asked Balsamo to follow-up on the information provided to the district attorney's office by Chief Nartatez concerning the alleged theft by plaintiffs. (Balsamo's Motion at 22, July 13, 1999 Declaration of Dennis J. Balsamo ("Balsamo Decl. I") ¶¶ 1-2.; see also Id. at 28, Declaration of Christie Schultz ("Schultz Decl.") ¶ 2; Villanti's MPA, June 20, 2000 Declaration of Dennis J. Balsamo ("Balsamo Deck II") at 1 ¶ 2.) Balsamo interviewed Chief Nartatez about his observations on May 12. (Id. at 23, Balsamo Decl. I ¶ 5; see also Id. at 35, Nartatez Decl. ¶ 8; Villanti's MPA, Balsamo Decl. II at 1-2 ¶ 5.) Following their conversation, Chief Nartatez provided Balsamo with a copy of an incident report documenting what had occurred on May 12 and copies of photographs taken that day. (Id. at 35, Nartatez Decl. ¶ 9; see also Id., Ex. H at 86-88, Villanti's MRA, Ex. H at 72-74.)
Chief Nartatez declares that a summary of his conversation with Balsamo is accurately set forth in Balsamo's investigative report (Motion at 35, Nartatez Decl. ¶ 8 Ex. A at 43; see also Villanti's MPA, Ex. A at 29 Balsamo Decl. II at 2 ¶ 5.) However, Nartatez's incident report referred to in his declaration was not attached to the copy of Balsamo investigative report filed with the Court.
Balsamo also interviewed Hollis, a senior vice president for Maddox, Inc., the building owner. (Id. at 23, Balsamo Decl. I ¶ 6; Villanti's MPA, Balsamo Decl. II at 2 ¶ 6.) Hollis indicated that, under the terms of plaintiffs' lease, Maddox owned all of the fixtures removed except for those fixtures characterized as removable trade fixtures. (Id.; Villanti's MPA, Balsamo Decl. II at 2 ¶ 6.) In addition, Hollis told Balsamo that plaintiffs had been reimbursed "$30,000 for tenant improvements to the premises, including fixtures." (Id.; Villanti's MPA, Balsamo Decl . . . II at 2 ¶ 6.) Hollis later provided receipts and invoices for the reimbursements to plaintiffs. (Id., Villanti's MPA, Balsamo Decl. II at 2 ¶ 6.)
During the course of these and other interviews, Balsamo's supervisor told Balsamo that Villanta., a senior investigator for the California Board of Dental Examiners, might be investigating whether Dr. Sundaram had been practicing dentistry without a license. (Id. at 24, Balsamo Decl. I ¶ 11; Villanti's MPA, Balsamo Decl. II at 3 ¶ 11.)
Villariti's investigation arose out of a cease-and-desist order issued on May 30, 1997, by the Department of Health Services ("DHS"). (Villanti's MPA, Declaration of Chuck Villanti ("Villanti Decl.") at 1-2 ¶¶ 4-7.) While in Guadalupe, the clinic was lawfully operated by Dr. Sundaram — who is not licensed as a medical or dental practitioner in the State of California — under an exemption for rural dental clinics. (Id., Villanti Decl. at 1 ¶ 2.) This exemption no longer applied once the clinic moved to Santa Maria. (Id., Villanti Decl. at 1-2 ¶¶ 4, 6.) Dr. Sundaram had notified Villanti's supervisor that the clinic was operating under the license of Dr. Stevens pending receipt of a proper license from DHS. (Id., Villanta's Decl. at 1-2 ¶ 5; Supp. Decl., Ex. C at 27, Dr. Sundaram's Deposition at 65.11-23.) Because the sign outside the clinic did not reflect Dr. Stevens' name and Dr. .Stevens had not filed for a fictitious business name permit,. Villanti was investigating Dr. Sundaram for the possible unlicenced practice of dentistry. (Id., Villanti. Decl. at 2 ¶¶ 7-8.)
Balsamo contacted Villanti on August 6, 1997; Villanti explained the purpose of his investigation, and they agreed to meet in Santa Maria on August 13, 1997, when Villanti was planning his next trip to Santa Maria (Id. at 24-25, Balsamo Decl. I ¶ 11; Villanti's MPA, Balsamo Decl. II at 3 ¶ 11 Villanti Decl. at 2 ¶ 9.) When they met, Balsamo agreed to provide back-up assistance to Villanti, who was still recovering from recent surgery and intended to meet with Dr. Sundaram. (Id. at 25, Balsamo Decl. I ¶ 11; Villanti's MPA, Balsamo Decl. II at 4 ¶ 12 Villanti Decl. at 2 ¶¶ 8-9; Plaintiff's Supplemental Declaration in Support of Plaintiff's Opposition to Villanti's Mption ("Supp. Decl."), filed July 6, 2000, Ex B at 17, Villanti's Deposition at 313:13-25.) Villanti typically seeks local law enforcement assistance to provide backup, and Balsamo explains that it is a typical practice to provide such assistance. (Villanti MPA, Villanti Decl. at 2 ¶ 9 Balsamo Decl. II at 4 ¶ 12; see also Balsamo's Motion at 25, Balsamo Decl. ¶ 11.)
When Villanta arrived in Santa Maria on August 13, 1997, he first stopped at the clinic and went inside after he found that the door was unlocked. (Supp. Decl., Ex. B at 18, Villanti's Deposition at 318:21-25, 319:1-5.) Villanti asked a young woman seated at a desk if he could use the restroom, and, rather than reveal his identity, he told the woman that he was a building inspector. (Id., Ex. B at 18, Villanti's Deposition at 319:5-10.) Villanti used the opportunity to look around the clinic and he "saw approximately three rooms, maybe four." (Id., Ex. B at 18, Villanti's Deposition at 319:14-15.)
Villanti then met with Balsamo at his office. (Id., Ex. B at 17, Villanti's Deposition at 314:9-15.) Balsamo explained why he was investigating Dr. Sundaram and showed Villanti the photographs of the allegedly stolen furniture and fixtures. (Id., Ex. B at 18, Villanti Deposition at 3187-8 Villanti's MPA, Villanti. Decl. at 2 ¶ 10 Balsamo Decl. II at 4 ¶ 15.) Villanti told Balsamo "that I had just viewed many of those items just mentioned at the Clinic on Miller Street." (Villanti's MPA, Villanti Decl. at 2-3 ¶ 10; Supp. Decl., Ex. A at 18, Villanti's Deposition at 318:14-17.) Villanti also told Balsamo that Dr. Sundaram's wife maintained an office or laboratory in Santa Maria and suggested that some of the alleged stolen furniture might be there. (Id., Villanti Died, at 3 ¶ 10.)
Villanti and Balsamo went to both of plaintiffs' business locations (Balsamo's Motion at 25, Balsamo Decl. I ¶ 12; Villanti's MPA, Balsamo's Decl. II at 4 ¶ 13 Villanti. Decl. at 3 ¶ 11.) Balsamo peeked through the mail slot of the business operated by plaintiff N. Sundaram and observed cabinets and counter tops similar to those photographed by Chief Nartatez on May 12. (Id.; Villanti's MPA, Balsamo Decl. II at 4 ¶ 13 Villanti Decl. at 3 ¶ 11.) Villanti and Balsamo then appeared unannounced at plaintiffs' residence, and, after a brief discussion about the purpose of Villanti's investigation, they arranged to meet Dr. Sundaram at the clinic within 45 minutes. (Plaintiff's Opposition to Defendant Balsamo's Motion ("Opp. I") at 26, Declaration of Thambiah Sundaram ("Dr. Sundaram Decl.") ¶ 4; Supp. Decl., Ex. A at 21, Villanti's Deposition at 409:19-25-412:1-7; Balsamo's Motion at 25, Balsamo Decl. I ¶ 13; Villanti' s MPA, Villanti's Decl. at 2-3 ¶¶ 13-17 "Balsamo's Decl. II at 4 ¶ 14.)
The parties differ on whether Villanti introduced Balsamo merely by name or simply as another official from the State. (Supp. Decl Ex. C at 29, Dr. Sundaram's Deposition at 97:9-11; c.f. Villanti's MPA, Villanti Decl. at 3 ¶ 12.) Regardless, it is undisputed that Dr. Sundaram was not informed that Balsamo was an investigator for the district attorney's office. It is also undisputed that the reason they went to the clinic was because Villanti wanted to contact Dr. Stevens, and Dr. Sundaram kept Dr. Stevens' phone number at the clinic. (Supp. Decl., Ex. A at 21, Villanti's Deposition at 411:8-18 Ex. C at 29-30, Dr. Sundaram's Deposition at 97.24-25-98:1-11.) A complaint against Dr Narine was also discussed, and Dr. Sundaram said that information was also at the clinic. (Id., Ex. A at 21, Villanti's Deposition at 411*9-25-412.12.1-7 Ex. C at 30, Dr. Sundaram's Deposition at 99:2-25-100:1-3.
The declaration attached to plaintiffs' opposition to Villanti's present summary judgment motion is an unsigned duplicate of the declaration filed with plaintiff's opposition to Balsamo's motion.
What happened next at the clinic is sharply disputed by the parties. According to Dr. Sundaram, upon Villanti's and Balsamo's arrival at the clinic, Dr. Sundaram asked defendants to wait in the front room while he retrieved some information for Villanti. (Opp. I at 26, Dr. Sundaram Decl. ¶ 4.) Instead of waiting, Villanti locked the front door of the clinic and demanded that Dr. Sundaram "sit down, cooperate and answer their questions or he would be arrested." (Id. at 26-27, Dr. Sundaram Decl. ¶ 4.)
Villanti, in Balsamo's presence, "demanded" to see Dr. Sundaram's driver's license and questioned him about his religion, source of income, social security status, and family. (Id.) During the interrogation, both defendants allegedly "made numerous insulting remarks and gestures" towards Dr. Sundaram regarding his ethnic background and Hindu religion. (Id. at 27, Dr. Sundaram Decl. ¶ 7.) When Dr. Sundaram refused to give defendants — the keys to the laboratory facility, defendants indicated they wouldn't the keys from N. Sundaram, since "Indian women were like slaves to men." (Id.) Balsamo searched the clinic while Dr. Sundaram was made to sit in the reception area with defendant Villanti. (Id.) Defendants were at the clinic for two hours. (Id.)
Villanti's view of what happened at the clinic is quite different. According to Villanti, he and Balsamo entered the reception room; Dr. Sundaram reiterated the problems he was having getting the clinic up and running; and he invited Villanti and Balsamo to take a look at the clinic. (Villanti's MPA, Villanti Decl. at 4 ¶ 19.) Dr. Sundaram gave them a guided tour. (Id., Villanti Decl. at 4 ¶¶ 20-21.) Villanti asked about Dr. Sundaram's last name after noticing a degree on the wall. (Id., Villanti. Decl. at 4 ¶ 22.) "[Dr. Sundaram] gave us a little history regarding the custom in India of taking his father's name and his family name, and he even pulled out his driver's license to show his name was SUNDARAM. It was in this context that SUNDARAM's wife's name came up. No derogatory comments were made about her." (Id.)
Once they were back in the front office, Dr. Sundaram continued to look for the information he wanted to give Villanti pertaining to Dr Narine. (Id., Villanti Decl. at 4-5 ¶ 23.) Villanti left the front Office to use the restroom, and, when he returned, Balsamo and Dr Sundaram were discussing the furniture in the clinic. (Id., Villanti Decl. at 5 ¶¶ 24-25.) Villanti indicated that he was finished and asked Dr. Sundaram to forward the information on Dr. Narine if he eventually found it. (Id., Villanti Decl. at 5 ¶¶ 26-27 ) Villanti and Balsamo then left the clinic. (Id., Villanti Decl. at 5 ¶ 27.)
While in the Clinic, Balsamo had "noticed a cabinet and sink combination, a bookcase, and a portion of a countertop matching the fixtures [he] had seen in the Nartatez photographs. . . ." (Balsamo's Motion at 25, Balsamo Decl. I ¶ 13; Villanti's MPA, Balsamo Decl. II at 4 ¶ 14.)
It is undisputed that Balsamo's investigation resulted in a criminal, complaint being filed against plaintiffs on one count of grand theft, conversion of real property to personal property by severance, in violation of Cal.Pen. Code § 487(b). (Opp. I at 27-31, Dr. Sundaram Decl. ¶ 5; Balsamo's Motion, Ex. B at 52-54; Villanti's MPA, Ex. B at 38-40.) It is also undisputed that the case terminated in plaintiffs' favor on November 3, 1997, following a preliminary hearing. (Balsamo's Motion, Ex. F at 61, 65; Villanti's MPA, Ex. F at 51.)
4. Discussion.
a. The pending claims.
The claims in the first amended complaint are pending, or are subject to recommended disposition, as follows:
Plaintiffs' first claim for relief alleges that they were maliciously prosecuted by defendant Balsamo in violation of their First, Fourth, and Fourteenth Amendments rights under 42 U.S.C. § 1983. (FAC at 13-15 ¶¶ 12-19.)
Plaintiffs' second claim for relief alleges that Dr. Sundaram was falsely arrest and verbally harassed by both defendants in violation of his First, Fourth, and Fourteenth Amendments under 42 U.S.C. § 1983. (Id. at 15-17 ¶¶ 20-26.) Specifically, plaintiffs allege that Dr. Sundaram was falsely arrested in retaliation for plaintiffs' protected political activity and speech and with an intent to discriminate against plaintiffs because of their ethnicity, race, and religion. (Id. at 15-16 ¶ 21.)
The magistrate judge previously concluded that because N. Sundaram was not present during, or otherwise subjected to, the alleged false arrest and mistreatment of Dr. Sundaram, she lacks standing to assert a claim under 42 U.S.C. § 1983 against defendants for false arrest, etc (See July 19, 1999 Order Granting, in Part, Defendant Villanti's Motion, etc. at 12-13.) Plaintiffs' current position is that only Dr. Sundaram is asserting a claim for false arrest, etc. (See Opp. II at 2)
Plaintiffs third claim for relief alleges that defendants conspired together in violation of plaintiffs' right to equal protection of the laws under 42 U.S.C. § 1985(3). (Id. at 18-19 ¶¶ 27-33.) Plaintiffs' fourth claim for relief alleges that defendants neglected to prevent the wrongs which they conspired to commit in violation of plaintiffs' First, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1986. (Id. at 19-20 ¶¶ 34-40.)
b. Defendants are entitled to summary judgment on the malicious prosecution and Fourth Amendment claims.
1) Summary judgment standard of review.
Summary judgment shall be rendered if the record shows that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." F.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 91 L.Ed.2d 202, 211 (1986). The moving party has the responsibility of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L.Ed.2d 265, 274 (1986). Material facts are those that affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 4711 U.S. at 248, 91 L.Ed.2d at 211.
The burden falls on the party opposing the motion to set forth specific facts which establish a material issue of fact. F.R.Civ P. 56(e); Celotex Corp. v. Catrett, 477 U.S. at 324, 91 L.Ed.2d at 274; Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. 91 L.Ed.2d at 217. The "mere pleadings themselves" are not sufficient to oppose a summary judgment motion. Id.; Celotex Corp. v. Catrett, 477 U.S. at 323, 91 L.Ed.2d at 275. Nonetheless, a verified complaint may serve as an opposing affidavit. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (citation omitted). "To function as an opposing affidavit, however, the verified complaint must be based on personal knowledge and set forth specific facts admissible in evidence." Id. (citing F.R.Civ.P. 56(e))
To defeat summary judgment, the evidence must be such that the jury could reasonably reach a verdict an favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 91 L.Ed.2d at 217. "When judging the evidence at the summary judgment stage, the district court is not to make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party." Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). Federal courts cannot grant summary judgment unless the moving party bears its burden of proving it is entitled to judgment. Cristobal V. Siegel, 26 F.3d 1488, 1491 (9th Cir. 1994)
2) Defendants are entitled to qualified immunity on the malicious prosecution claim.
Balsamo contends that he is entitled to qualified, immunity from plaintiffs' malicious prosecution and related conspiracy claims because, even if the investigative report contained false statements or omissions, such statements and omissions did not result in additional charges being filed against plaintiffs and, therefore, were not material. (Balsamo's Motion at 9-14.) Villanti contends that he entitled to qualified immunity for the same reasons. (Villanti's MPA at 13-14.)
Qualified immunity shields a defendant from suit for damages if a reasonable officer in the defendant's position could, have believed that his or her conduct was lawful in light of clearly established law and the information the officer possessed at the time the conduct occurred. Hunter v. Bryant, 502 U.S. 224, 227, 116 L.Ed.2d 589, 595 (1991) (per curiam); Anderson v. Creighton, 483 U.S. 635, 641, 97 L.Ed 2d 523, 532 (1987). In considering the assertion of a qualified immunity defense, the Court applies a two-part analysis: (1) a determination whether the right allegedly violated was so clearly established as to alert a reasonable official to its constitutional parameters; and (2) a determination whether, under the facts alleged, a reasonable official could have believed his or her conduct was lawful. Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997), cert. denied, 522 U.S. 1045, 139 L.Ed.2d 633 (1998); Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996)
It is well settled that it is unconstitutional to conduct a malicious prosecution "with the intent to deprive a person of equal protection of the laws" or otherwise with the intent "to subject a person to a denial of constitutional rights." Bretz V. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985); see also Usher v. Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987). Thus, in 1997, "[n]o reasonable official could claim that he could not know that it violates the established law maliciously and selectively to use without probable cause a criminal prosecution for the purpose of infringing upon a person's constitutional rights." Poppell v. City off San Diego, 149 F.3d 951, 961 (9th Cir. 1998)
Once it has been shown that the right was clearly established, the burden shifts to the defendant to show that there was no violation, or that the conduct was reasonable even though it might have violated constitutional standards. Collins v. Jordan, 110 F.3d at 1369. Officers who act reasonably but mistakenly are entitled to immunity. Hunter v. Bryant, 502 U.S. at 227, 116 L.Ed.2d at 595. An official is entitled to qualified immunity on summary judgment only if the Court concludes, after resolving all genuinely disputed issues of material fact in favor of the plaintiff, that the official's actions were objectively reasonable under the circumstances. See Alexander v. County off Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995)
Plaintiffs argue that Balsamo is not entitled to qualified immunity because he harbored retaliatory intent against them. (Opp. I at 22-23 ) "[A] defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense." Crawford-El v. Britton, 523 U.S. 574, ___, 140 L.Ed.2d 759, 773 (1998). Thus, although evidence of Balsamo's malicious motives would be relevant to prove plaintiffs' malicious prosecution claim, such evidence may not be considered in deciding whether Balsamo is entitled to qualified immunity.
Under California law, "the elements of malicious prosecution are (l the initiation of criminal prosecution, (2) malicious motivation, and (3) lack of probable cause." Usher v. Los Angeles, 828 F.2d at 560 (citing Singleton v. Perry, 45 Cal.2d 489, 494 (1955)).
Balsamo's claim of qualified immunity is analogous to that of an officer sued for obtaining an arrest or search warrant later found to be lacking in probable cause because of. false statements or is omissions made by the officer. "[A] plaintiff can only survive summary judgment on a defense claim of qualified immunity if the plaintiff can both establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant. Put another way, the plaintiff must establish that the remaining information in the affidavit is insufficient to establish probable cause." Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995), as amended on denial off reh'g.
Thus, plaintiffs' burden is two-fold; they must make a substantial showing of the deliberate falsity or reckless disregard of the truth of the statements in Balsamo's report, and they must establish "the materiality of those statements to the ultimate determination of probable cause." Id.; see also LQmbLardi v. City off El Cajon, 117 F.3d 1117, 1127 (9th Cir. 1997) ("It is not objectively unreasonable to omit facts that aren't material.")
Plaintiffs were not formally arrested by Balsamo, and, unlike the usual case, no arrest warrant was issued. Rather, after the felony complaint was filed, plaintiffs were notified by letter that their failure to appear in municipal court on a particular date would result in a warrant being issued for their arrest. (Balsamo's Motion, Ex. C at 55-56; Villanti's MPA, Ex. C at 41-42.) Plaintiffs appeared as instructed and were released on their own recognizance following their arraignment and with instructions to report to the sheriff's department for fingerprinting. (Id., Ex. E at 59-60; Villanti's MPA, Ex.D at 45-46.). Thus, the critical question is whether there still would have been probable cause to support charges for grand theft against plaintiffs in the absence of the alleged false statements and with the inclusion of the alleged omissions in Balsamo's report.
Despite Balsamo's conclusion that other crimes had been committed and that plaintiffs should be prosecuted for such other crimes, Balsamo only succeeded in convincing the prosecutor to file a single criminal charge against each plaintiff for grand theft. (Balsamo's Motion at 30-31, Declaration of Steven B. Plumer ("Plumer Decl. I") ¶ 4 Ex. B at 52-54; Villanti's MPA, Declaration of Steven B. Plumer ("Plumer Decl. II") at 2 ¶ 4 Ex B at 38-40.) Thus, in the absence of evidence showing that Balsamo made false statements or omissioms relevant to the decision to prosecute plaintiffs for grand theft, plaintiffs cannot defeat Balsamo's claim of qualified immunity. In other words, any other statements purported to be false, or omissions, no matter how egregious or maliciously motivated, are not material and, consequently, are not actionable.
There was never any dispute about whether plaintiffs removed the fixtures. The dispute was over whether plaintiffs stole them. of the several false statements and omissions plaintiffs assert in connection with Balsamo's report, only two are plainly material: (1) that Balsamo omitted his "knowledge that plaintiff presented receipts for the alleged stolen fixtures, but the alleged victim of the crime could not," and (2) that Balsamo-reported that the receipts provided by Maddox were not for the stolen fixtures, but failed to include information about "what he knew or should have known, i.e., that [Dr. Sundaram] was in possession of said receipts" (Opp. I at 29-30, ¶¶ 5vi 5viii.) Plaintiffs' assertion that Balsamo omitted information from the report that Dr. Sundaram told Chief Nartatez that he "was removing trade fixtures on the advice of legal counsel Michael C. Scott . . [and] provided to Chief Nartatez, Scott's business card" is, arguably, also material. (Id. at 28-29, Dr. Sundaram's Decl. ¶ 5iii.)
Balsamo's report reflects that he met with Hollis on August 11, 1997, and that Hollis presented Balsamo with "Maddox's original copies of receipts and invoices reflecting exactly $30,000.00 that Maddox reimbursed [plaintiffs' business] for the tenant improvement of the Main St. property.". (Motion, Ex. A at 42.) Balsamo explained the type of items included within the receipts and invoices and noted that there were no receipts for "the cabinets, and counters, toilets, or interior doors." (Id., Ex. A at 43.) Balsamo stated that Hollis explained that "the $30,000.00 did cover those things also, but they did not require detailed receipts to cover every little thing." (Id.) Balsamo further stated that Hollis was willing to testify in court "that the $30,000.00 did cover all the fixtures [plaintiffs] severed and carried away." (Id.)
Neither party presented any evidence to show specifically why the charges against plaintiffs were dismissed after the preliminary hearing. Thus, it is not known whether plaintiffs presented conclusive evidence showing that they were the true owners of the removed fixtures or other evidence showing that they lacked the intent to steal the fixtures because they believed that they owned the fixtures. This Court is not permitted to speculate as to the actual cause for the-dismissal. However, construing the evidence in the light most favorable to plaintiffs, it is undisputed that additional receipts for the fixtures were in plaintiffs' possession and that Dr. Sundaram told Chief Nartatez that plaintiffs were removing the fixtures on the advice of legal counsel.
However, Chief Nartatez does not recall any discussion with Dr. Sundaram "about his lawyer or his giving me a business card (Balsamo's Motion at 35, Nartatez Decl. ¶ 8.) Chief Nartatez further declares that he did not pass such information on to Balsamo. (Id.) There is no evidence that plaintiffs personally communicated this fact to Balsamo. Thus, in the light most favorable to plaintiffs, they have shown that Dr. Sundaram provided this information to Chief Nartatez, but they failed to show that Balsamo knew that plaintiffs were justified in believing that they were entitled to remove and keep the fixtures.
Similarly, plaintiffs fail to show that Balsamo knew that plaintiffs possessed receipts showing that they paid for the fixtures which had been removed. While there is a dispute as to whether plaintiffs were available and willing to meet with Balsamo, Dr. Sundaram's declaration is devoid of any evidence that he or his wife ever told anyone, much less Balsamo, that plaintiffs were in possession of receipts for the removed fixtures. (See Opp. I at 31, Dr. Sundaram Decl. ¶ 5xvi; Balsamo's Motion, Ex. A at 49-50.)
In any event, it is also undisputed that such receipts would not have made any difference. Senior Deputy District Attorney Plumer, who was assigned the job of determining what, if any, charges should be filed against plaintiffs, reviewed Balsamo's report and the receipts and invoices provided therewith before deciding to charge plaintiffs with grand theft. (Balsamo's Motion at 30, 32, Plumer Decl. I ¶¶ 1-2, 9; Villanti's MPA, Plumer Decl. II at 3 ¶ 9.) Plumer explains that "[t]hese receipts did not influence my decision to file charges because the issue was whether plaintiffs owned the fixtures when they took them, not whether they initially paid for them." (Id. at 32, Plumer Decl. Ipara 9; Villanti's MPA, Plumer Decl. II at 3 ¶ 9.) At most, the additional receipts in plaintiffs' possession would only have shown that plaintiffs purchased the fixtures in question, not whether they still "owned" them.
Plaintiffs' suspicions or beliefs as to what Balsamo knew is not evidence. Rule 56(e), F.R.Civ.P., provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein" Plaintiffs failed to meet their burden, by use of admissible evidence, to show that Balsamo knowingly or recklessly omitted material information — information that would have altered the decision _to charge plaintiffs with grand theft — from the investigative report.
Plaintiffs have also alleged that Villanti conspired with Balsamo to maliciously prosecute plaintiffs. The undisputed evidence shows, at most, that Villanti was aware of Balsamo's investigation of plaintiffs for grand theft and, in a roundabout way, facilitated Balsamo's personal observation of the alleged stolen items at plaintiffs' businesses.
Villanti specifically disavows having any role in preparing or assisting Balsamo in preparing his investigative report or in recommending that plaintiffs be prosecuted for grand theft. (Villanti MPA, Villanti-Decl. at 5-6 ¶¶ 30-31.) plaintiffs offer no evidence to the contrary. Thus, Villanti's limited involvement in Balsamo's investigation of plaintiffs for grand theft did not influence the prosecutor's decision to charge plaintiffs with grand theft. (See Villanti MPA, Plumer Decl. U at 2 ¶¶ 4A.)
Accordingly, the magistrate judge concludes that defendants are entitled to summary judgment on the malicious prosecution claim on the basis of qualified immunity.
3) Defendants had probable cause to arrest Dr. Sundaram on August 13, 1997.
Because the material facts about what took place at the clinic on August 13, 1997, are disputed, the magistrate judge construes the facts in the light most favorable to Dr. Sundaram. Dr. Sundaram's version of the events of August 13 demonstrate that he voluntarily met defendants at the clinic to address Villanti's investigation into the possible unlicensed practice of dentistry, and Dr. Sundaram was detained and questioned for two hours while the clinic was searched.
The Fourth Amendment's protection against unreasonable seizures "extends to `seizures that involve only a brief detention short of traditional arrest.'" I.N.S. v. Delgado. 466 U.S. 210, 215, 80 L.Ed.2d 247, 254 (1984) (quoting United States v. Brigrzoni-Ponce, 422 U.S. 873, 878, 45 L.Ed.2d 607 (1975)). "[Am initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment `if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."' Id., 80 L.Ed.2d at 255 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L.Ed.2d 497 (1980)).
Dr. Sundaram's evidence shows that he was told to sit down and remain in the front office, the front door was locked by one of the defendants, and he was questioned by defendants for two hours. These facts are sufficient to transform Dr. Sundaram's detention into an arrest implicating the Fourth Amendment.
Villanti contends that, even if these facts are accepted as true, no Fourth Amendment violation occurred because probable cause existed to arrest Dr. Sundaram for grand theft. (Villanti's MPA at 14-18.) Villanti contends that probable cause existed based on the following: (1) Balsamo's investigation prior to August 13, (2) Villanti's viewing of the alleged stolen items at the clinic before his meeting with Balsamo on August 13, and (3) Balsamo's viewing of some of the alleged stolen items through the mail slot of plaintiffs' other business before defendants met with Dr. Sundaram. (Id. at 17.)
"Probable cause must be determined at the time the arrest is made. Facts learned or evidence obtained as a result of a stop or arrest cannot be used to support probable cause unless they were made known to the officer at the time the arrest was made" Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1995), as amended (citations omitted). "`Probable cause exists when, at the time of arrest, the agents know reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense.'" Id. at 237 (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir. 1988)).
Prior to August 13, Balsamo knew that both Maddox, Inc. (through Hollis) and Dr. Sundaram claimed to be the true owners of the property removed from the leased office in Guadalupe. When Balsamo was assigned to investigate the alleged theft, he was given a copy of the lease agreement (which prohibited the removal of any additions, alterations, and improvements to the property, except for removal trade fixtures, and contained an agreement by the property owner to pay $30,000 for tenant improvements), a list of the items that had been removed, an estimate of the value of those items, and photographs. (Villanti's MPA, Ex. A at 25-26, 33-34, Ex. H at 72-74, Ex. I at 75-76 Balsamo Decl. II at 1, 3 ¶¶ 3, 8; see also Balsamo's Motion at 23, 25, Balsamo Decl. I ¶¶ 3, 8, Ex. A at 39-40, 47-48, Ex. H at 86-88, Ex. I at 89-90.) Balsamo interviewed several people associated with both parties who confirmed that plaintiffs had been reimbursed for their improvements to the property and who had observed the items being removed from the leased property. (Id., Ex. A at 27-28, 30-32 Balsamo Decl. II at 2-3 ¶¶ 5-9; see also Balsamo's Motion at 24-25, Balsamo Decl. I ¶¶ 5-9, Ex. A at 40-41, 42-44.) Before meeting with Dr. Sundaram on August 13, Balsamo learned from Villanti that items similar to those in the photographs taken by Chief Nartatez were located in the clinic. Balsamo personally observed similar items through the mail slot of plaintiffs' other business.
Based on the information available to defendants before they entered the clinic with Dr. Sundaram on August 13, probable cause existed to arrest him for grand theft. Although it appears that plaintiffs later provided receipts indicating that they had a rightful claim of ownership to the alleged stolen items and the building owner had no such receipts plaintiffs failed to offer any evidence to show that Balsamo was aware that such receipts existed on or before August 13. TO the contrary, the information supplied to Balsamo by the alleged victim's agents and others provided probable cause to arrest Dr. Sundaram for grand theft. See Peterson v. City off Plymouth, 60 F.3d 469, 474-475 (8th Cir. 1995) ("officers are generally entitled to rely on the veracity of information supplied by the victim of a crime").
Moreover, although the defendants may not have given their true motives either to obtain Dr. Sundaram's consent to enter the clinic or to detain him there for questioning, their methods did not run afoul of the Fourth Amendment. An ulterior motive on the part of law enforcement in obtaining consent to conduct a search or seizure of an individual does not strip the agents of legal justification. See Whren v. United States, 517 U.S. 806, 812, 135 L.Ed.2d 89, 97 (1996) "Subjective intentions play no role in ordinary probable cause Fourth Amendment analysis." Id. at 813, 135 L.Ed.2d at 98. Thus, even assuming that defendants used the ruse of an administrative investigation to detain Dr. Sundaram when they actually suspected him of criminal activity, his detention was no less objectively reasonable under the Fourth Amendment. See United States v. Nechy, 827 F.2d 1161. 1167-1168 (7th Cir. 1987)
Accordingly, the magistrate judge concludes that defendants are entitled to summary judgment on Dr. Sundaram's Fourth Amendment claim for false arrest.
c. The remaining claims should be dismissed without leave to amend.
1) Equal protection claim.
Previously, the magistrate judge tentatively concluded that three triable issues remained for disposition. (See Order Re Further Proceedings, filed August 17, 2000.) Each of the remaining issues involved the allegations that defendants' actions on August 13, 1997, were motivated by an intent to discriminate against Dr. Sundaram based on his national origin, in violation of his right to equal protection under the Fourteenth Amendment. (Id.)
The magistrate judge previously concluded that the verbal harassment claim should be dismissed, because claims alleging only verbal harassment or abuse are not sufficient to state a claim under 42 U.S.C. § 1983. (See Order Re: Detendant Balsamo's Motion for Partial Summary Judgementat 18-19 (citing Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (threat of bodily harm not a constitutional violation)).)
The magistrate judge further concludes that Dr. Sundaram's First Amendment claim should be dismissed. Plaintiffs failed to set forth specific allegations showing that defendants acted in retaliation for Dr Sundaram's protected political activity and speech in violation of his First Amendment rights. Dr. Sundaram does not explain the nature of his political activity and speech or how defendants' actions impinged on his First Amendment activities. Vague and conclusory allegations are insufficient to state a claim under 42 U.S.C § 1983. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992), Karim-Panaha. v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988) Nor does it appear from the record that plaintiffs can proffer even a scintilla of evidence from which a rational trier of fact could find a First Amendment violation.
Upon further examination, however, the magistrate judge now concludes that plaintiff's allegations are not sufficient to support his equal protection claim, and it is apparent that further amendment would not cure this deficiency. See Omar v. Sea-Land Service, Inc., 813 F.2d 986, 9-91 (9th Cir. 1987) (sua sponte dismissal is appropriate where it is clear that the claimant cannot possibly win relief).
According to Dr. Sundaram's factual account of what transpired at the clinic on August 13 defendants made remarks about Dr. Sundaram's ethnic background and Hindu religion. Thus, a rational trier of' fact could conceivably find that defendants' treatment of Dr. Sundaram was intentionally discriminatory because of his ethnicity and religion. See Tanner v.. Heise, 879 F.2d 572, 580 n. 5 (9th Cir. 1989); Alexis v. McDonald's Restaurants of Massachusetts, Inc., 67 F.3d 341, 353-354 (1st Cir. 1995). However, that it not enough to show that defendants violated Dr. Sundaram's equal protection rights.
The Equal Protection Clause of the Fourteenth Amendment provides that "[no State shall . . . deny to any person within its jurisdiction the equal protection of the laws." To be entitled to relief on his equal protection claim, Dr. Sundaram must show proof of both a discriminatory motive and a discriminatory effect. Benigni v. City of Hemet, 879 F.2d 473, 477 (9th Cir. 1988). Thus, it is not enough to show that defendants may have harbored a discriminatory motive, plaintiff must also show that other similarly situated persons were not treated the way that plaintiff was treated. See Freeman v. City off Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995), as amended on denial off reh'g and reh'g en banc; United States v. Lee, 786 F.2d 951, 957 (9th Cir. 1986). In other words, plaintiff must show that "others generally are not prosecuted [or arrested] for the same conduct." Church off Scientology v. Commissioner of Internal Revenue, 823 F.2d 1310, 1320-1321 (9th Cir. 1987), cert. denied, 486 U.S. 1015, 100 L.Ed.2d 214 (1988)
Dr. Sundaram's equal protection claim is essentially a claim of selective enforcement or prosecution. Such claims "are judged according to ordinary Equal Protection standards, which require a petitioner to show both a discriminatory purpose and a discriminatory effect." Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000), reh'g and suggestion for reh'g en banc denied (citing Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir.), cert. denied, 519 U.S. 928, 136 L.Ed.2d 215 (1996)).
Plaintiff has not set forth any allegations showing that-other persons investigated for grand theft in the same community were treated differently than plaintiff was treated. Nor is there anything in the record before the Court suggesting that plaintiff is able to proffer any evidence that would enable a trier of fact to reach such a conclusion. "Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances." Attorney General v. Irish People, Inc., 684 F.2d 928, 946 (D.C. Cir. 1982), cert. denied, 459 U.S. 1172, 74 L.Ed.2d 1015 (1983). Accordingly, Dr. Sundaram's equal protection claim arising out of the events of August 13, 1997, should be dismissed.
2) 42 U.S.C. § 1985(3), 1986 claims.
To prevail on a claim for relief under 42 U.S.C. § 1985(3), plaintiffs must establish the following:
(1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and
(4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States.
Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-103, 29 L.Ed.2d 338, 348 (1971))
Under the fourth component listed above, "infringement of some federally protected right independent of § 1985(3) is required for a violation of the conspiracy statute to be demonstrated." Holmes v. Finney, 631 F.2d 150, 154 (10th Cir. 1980). Consequently, where a § 1985 conspiracy claim is based upon the same factual allegations underlying the plaintiff's § 1983 claims and the court has determined that no § 1983 deprivation occurred, the plaintiff's § 1985 claim fails as well. Caldeira v. County off Kauai, 866 F.2d 1175, 1182 (9th Cir.), cert. denied, 493 U.S. 817, 107 L.Ed.2d 36 (1989) Cassettari v. County of Nevada, Cal., 824 F.2d 735, 739 (9th Cir. 1987); see also Jag v. City of Warren, 944 F. Supp. 606, 611 (E.D.Mich. 1996) (where plaintiff failed to show officers were unreasonable in belief that probable cause existed, defendants were entitled to summary judgment on § 1983 and § 1986 claims and state claims of malicious prosecution, false arrest and false imprisonment).
Having previously concluded that plaintiffs failed to show any constitutional deprivation under their § 1983 claims, it is plainly evident that they cannot. establish a violation of § 1985(3). Similarly, plaintiffs cannot prevail on their § 1986 claim in the absence of a viable § 1985 claim. See McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990), cert. denied, 504 U.S. 957, 119 L.Ed.2d 227 (1992)
Villanti reasserts his contention that defendants are immune from suit under 42 U.S.C. § 1985(3) pursuant to the intracorporate conspiracy doctrine. (Villanti's MPA at 22-23; see also Villanti's Motion for Summary Judgment, etc., at 5-8, filed on June 10, 1999.) The magistrate judge previously concluded that Villanti failed to meet his burden to show that he was immune from suit on the 42 U.S.C. § 1985(3) conspiracy claims under the intracorporate conspiracy doctrine, but left the door open to Villanti's renewing the issue if evidence was developed to support it. (Order Granting, in Part Defendant Villanti's Motion, etc., at 11, filed July 19, 1999.) Since plaintiffs' conspiracy claim under 42 U.S C. § 1985(3) should be dismissed for other reasons, it is unnecessary to decide whether the intracorporate conspiracy doctrine is applicable.
5. Recommendation.
Based on the foregoing, IT IS RECOMMENDED that the Court accept and adopt the findings and recommendations herein by granting summary judgment in favor of defendants as to the malicious prosecution and Fourth Amendment claims and by dismissing the remaining claims without leave to amend.