Opinion
Civil No. 03-3026-CO
March 18, 2004
ORDER AND FINDINGS AND RECOMMENDATION
Plaintiff filed this action against defendant alleging a claim for violation of civil rights. Plaintiff seeks economic damages, non-economic damages, punitive damages, and costs. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the court is defendant's motion for summary judgment (#10) which plaintiff opposes, and his motion to strike (#22), to which plaintiff has not responded.
I. DISCUSSION
A. MOTION TO STRIKEDefendant moves to strike paragraphs 8-12 of the Statement of Raymond M. Bledsaw, Sr., on the grounds that the material offered contains information or evidence that is not admissible because it is improper opinion and hearsay testimony and is not relevant to any claim or defense. Plaintiff does not respond to defendant's motion.
Pursuant to Federal Rules of Civil Procedure 56(e), affidavits must be based upon personal knowledge and must set forth admissible evidence. Thornhill Publ'g Co. v. Gen. Tel. Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979); Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir. 1975) ("[G]eneralized, conclusionary, unsubstantiated, non-personal affidavits are insufficient to successfully oppose a motion for summary judgment."). Moreover, hearsay statements in affidavits are inadmissible in summary judgment challenges. Fong v. Am. Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980);Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990); see Hysten v. Jefferson County Bd. of County Comm'rs, 995 F. Supp. 1191, 1199 (D. Kan. 1998) (striking affidavit of investigator who stated that her investigation "revealed that county officials had acknowledged [discriminatory acts]" as lacking in personal knowledge and based on hearsay; stating investigator not competent to testify to such matters). However, under Federal Rules of Evidence 70l, opinion or inference testimony of a lay witness is allowed if it is rationally based on the perception of the witness and helpful in understanding a fact in issue. Hess v. Multnomah County, 211 F.R.D. 403, 405 (D. Or. 2001).
The court has reviewed the cited portions of Mr. Bledsaw's Statement and finds that paragraphs 8-12 should be stricken for the reasons advanced by defendant. Defendant's motion to strike is granted; paragraphs 8-12 of Mr. Bledsaw's Statement offered by plaintiff are stricken.
B. MOTION FOR SUMMARY JUDGMENT
Plaintiff alleges in his complaint that defendant used suggestive procedures intentionally to cause Bret Stribbing to identify plaintiff irrespective of whether plaintiff was in fact guilty or innocent, in violation of his Fourteenth Amendment due process rights. Defendant moves for summary judgment on the grounds that the undisputed facts establish that plaintiff's Fourteenth Amendment rights were not violated; and, even if plaintiff establishes a constitutional violation, defendant is immune from liability under the doctrine of qualified immunity. Plaintiff responds that there was a violation of his due process rights and defendant is not entitled to qualified immunity.
1. Facts
In making the following findings of fact, the court considers the evidence in the light most favorable to the non-moving party:
Defendant Jeffery D. Kamp is a police officer employed by the City of Lakeview and was conducting an investigation of marijuana drug sales in the Lakeview community when he learned that 17-year old Brett Stribbing had purchased marijuana from a person known as "Shaky Ray." (Kamp Aff. p. 2.) Stribbing told Defendant he had purchased marijuana from the individual on January 26, 2001, at 3:30 p.m. and gave directions to the location where the drug transaction occurred. Stribbing later contacted Defendant and provided him with the actual address — 1139 South "G" Street, Apt. #1. (Kamp Aff. p. 2.) The transaction location was a place where Plaintiff Raymond M. Bledsaw, Jr., had resided. (Kamp Aff. p. 2.) Plaintiff was not residing at the address of 1139 South "G" Street on the date of the alleged sale of marijuana. (Bledsaw Stmt. p. 2, ¶ 5.)
Plaintiff is also known as "Shaky Ray." (Kamp Aff. p. 3.)
Stribbing was an admitted dope user and supplier of dope to minors. (Kamp Aff. Ex. 3, p. 9.)
During the course of the investigation, Plaintiff's name developed from more than one source as a supplier of marijuana. (Kamp Aff. p. 2 Exs. 2, 3.)
Defendant compiled a photographic lineup after taking Plaintiff's photograph with a Polaroid camera. Defendant utilized other photographs from jail booking photos for the display and attempted to make the photographs consistent in size, shape, and background. (Kamp Aff. p. 2.) Defendant followed an example and information provided by the Oregon State Police on how to construct a photographic lineup and read a statement to Mr. Stribbing, before proceeding to show him photographs, advising that he should not conclude or guess that the photos shown to him contained a picture of the individual who may have committed a crime. (Kamp Aff. p. 3.)
Mr. Stribbing examined the photos and indicated that although he was not entirely sure, he believed it was number 5 in the photographic lineup or possibly one of the other men depicted. Number 5 in the lineup was Plaintiff. (Kamp Aff. p. 3.) Stribbing also pointed to another photograph as possibly being his drug supplier and when asked by Defendant which of the two most likely resembled the man, he pointed to Plaintiff's picture, number 5 in the photographic lineup. (Kamp Aff. p. 3.)
Plaintiff was subsequently indicted by a Grand Jury on or about April 5, 2001, following the testimony of Brett Stribbing and Defendant. (Pl. Compl. ¶ 8; Def. Answer ¶ 4.)
Plaintiff was arrested pursuant to a felony warrant signed by Circuit Court Judge Lane Simpson on April 6, 2001. (Kamp Aff. p. 4.)
After Plaintiff's arrest, his attorney filed a Motion to Suppress the photo lineup identification of Plaintiff on the grounds that it was unduly suggestive. (Bledsaw Stmt. Ex. 101.)
After a hearing, Judge Simpson made a finding that the photo lineup of Plaintiff was "in fact unduly suggestive," and found that the photo display "leads the Witness to identify the person on a basis other than that person's memory," in that "The photo of [Bledsaw] has a substantially different background and the photo is cut out from a prior photo, which is obvious." (Bledsaw Stmt., Ex. 102, p. 2.) Judge Simpson found that the State's evidence of an "independent source" for the subsequent identification of Bledsaw was "not a clear `independent source' for the subsequent identification of [Bledsaw]." (Bledsaw Stmt. Ex 102, p. 2.)
2. Legal Standard
A moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issues as to any material fact. . . ." Fed.R.Civ.P. 56(c); Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002).
The moving party must carry the initial burden of proof.Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The moving party meets this burden by identifying for the court portions of the record on file which demonstrate the absence of any genuine issue of material fact. Id.; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn in favor of the non-movant.Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002).
If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). If the moving party presents evidence which, taken by itself, would establish the right to a directed verdict at trial, the motion for summary judgment must be granted, in the absence of any significant probative evidence tending to support the opposing party's theory of the case.THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 991, 993-94 (9th Cir. 1980); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076.
3. Analysis
Qualified immunity shields government agents from suit for damages if a reasonable official could have believed that his or her conduct was lawful, in light of clearly established law and the information possessed by the official. Anderson v. Creighton, 483 U.S. 635, 637-39, 641 (1987); Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam). This standard shields all government officials except those who are either plainly incompetent or who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). To determine if a defendant is entitled to qualified immunity, the court employs the sequential analysis set forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001).
First, the court must ask whether the facts alleged by plaintiff, taken in the light most favorable to plaintiff, establish a constitutional violation. Id. at 201; Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002) (en banc). If no constitutional right would have been violated under the facts alleged, then the analysis ends. Saucier, 533 U.S. at 201.
If a violation could be established under the facts alleged, the court will then consider whether the right was clearly established. Id.; Robinson, 278 F.3d at 1013. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. The court must determine whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202. If the law does not put an officer on notice that his conduct was clearly unlawful, summary judgment based on qualified immunity is appropriate. Id.
Whether an official protected by qualified immunity may be held liable for allegedly unlawful actions depends on the objective legal reasonableness of the actions, assessed in the light of the clearly established law at the time. Anderson, 483 U.S. at 639;Floyd v. Laws, 929 F.2d 1390, 1393 (9th Cir. 1991). As long as defendant could reasonably have thought his action was consistent with the rights he was alleged to have violated, defendant is entitled to qualified immunity. Anderson, 483 U.S. at 638.
Plaintiff has the burden of showing that defendant violated clearly established constitutional rights. Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983). Since the immunity is immunity from suit, the determination is to be made at the earliest possible stage in litigation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson, 483 U.S. at 646 n. 6.
The court will undertake the threshold inquiryand determine whether, taking the facts alleged by plaintiff in the light most favorable to him, plaintiff has established a constitutional violation.
The Ninth Circuit has stated: "To constitute a due process violation, the photographic identification procedure must be so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Denham v. Deeds, 954 F.2d 1501, 1504 (9th Cir. 1992) (citing Simmons v. United States, 390 U.S. 377, 384 (1968)); United States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992). The identification procedure must be impermissibly or unduly suggestive under the totality of the circumstances. Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citing Neil v. Biggers, 409 U.S. 188, 196 (1972)). "[R]eliability is the linchpin in determining the admissibility of identification testimony. . . ." Manson v. Brathwaite, 432 U.S. 98, 114 (1977). There are five factors among the totality of circumstances to be considered by the court is assessing the reliability of the identification procedures:
1) the witness' opportunity to view the suspect at the time of the crime, 2) the witness' degree of attention to the perpetrator at the time of the crime, 3) the accuracy of any earlier description of the suspect, 4) the level of certainty demonstrated at the confrontation, and, 5) the lapse of time between the time of the crime and the confrontation.Denham, 954 F.2d at 1504 (citing Neil v. Biggers, 409 U.S. 188, 196 (1972)); United States v. Barrett, 703 F.2d 1076, 1085 (9th Cir. 1983) (same); Manson, 432 U.S. at 114 (same);see United States v. Duran-Orozco, 192 F.3d 1277, 1282 (9th Cir. 1999) (automatic exclusion of identification testimony is not required even if the procedure is impermissibly suggestive, if totality of circumstances show testimony is reliable under factors identified in Neil v. Biggers, 409 U.S. 188, 196 (1972)).
Plaintiff offers evidence that the state court granted his motion to suppress the photographic lineup identification of him, finding that the identification was "in fact unduly suggestive." Bledsaw Stmt. Ex. 102.) Judge Simpson's ruling indicates that the court considered the Biggers factors of reliability in finding the photo lineup identification inadmissible. Considering the evidence in the light most favorable to plaintiff, the court finds that the facts are sufficient to make out a constitutional violation.
Defendant acknowledges in his motion that "it is clearly established that a suggestive procedure intended to produce a false identification regardless of the suspect's innocence or guilt, is a violation of a constitutional right," citingDevereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc). (Def. Mot. at 5.) The Devereaux court found that, "there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government." Id.
Here, the undisputed evidence shows that defendant took a Polaroid photograph of plaintiff and utilized booking photographs for the display. Defendant attempted to make the photographs consistent in size, shape, and background, and followed an example and information provided by the Oregon State Police on how to construct a photographic lineup. Defendant also states that, in creating the photo lineup, he attempted to the best of his ability and "with the resources available" to him, to include five similar looking individuals with the photograph of plaintiff. (Kamp Aff. at 2.) Defendant also states in his affidavit that he presented the lineup to his chief of police, Dennis Ross, to make sure the lineup was done properly before he used the lineup in his investigation.
Plaintiff takes issue with defendant's statement that he attempted to the best of his ability and with the resources available to him to include similar individuals in the photo display. Plaintiff points to Judge Simpson's statement in his letter ruling in which he states, "However, another ten or fifteen minutes could have been taken to allow [Bledsaw] to be photographed in the same location as the other persons in the line-up, which is the Lake County Jail," (Bledsaw Stmt. Ex. 102 at 2), and claims that defendant's statement in his affidavit is an afterthought and a fabrication due to litigation. As defendant notes in his reply, the statement cited follows Judge Simpson's finding that, "The Court acknowledges that there was no bad faith on the part of the police officers. The genuine effort [sic] was made to make the photo line-up fair and not suggestive." (Bledsaw Stmt. Ex. 102 at 2.)
The court agrees with defendant that it probably would have caused additional problems for defendant had he taken a booking photograph of plaintiff at the county jail. While the option might be available, failing to take that option and choosing to undertake the procedure utilized by defendant is not an obvious violation of plaintiff's due process rights. Further, Judge Simpson specifically found that a "genuine effort was made to make the photo line-up fair and not suggestive," and that there was no bad faith by defendant. (Bledsaw Stmt. Ex. 102 at 2.)
Plaintiff's remaining contentions were taken into account in the court's finding that plaintiff presents evidence establishing a constitutional violation, or are unsupported by any evidence.
On this record, and in light of the clearly established law, an objectively reasonable officer could reasonably have thought the actions taken by defendant were lawful and did not violate plaintiff's clearly established rights, and defendant should be entitled to qualified immunity. Defendant's motion for summary judgment should be granted on the ground that he is entitled to qualified immunity, and this case should be dismissed, with prejudice.
II. ORDER
Defendant's motion to strike (#22) is granted, as set forth above.
III. RECOMMENDATION
Based upon the foregoing, it is recommended that defendant's motion for summary judgment (#10) be granted, and judgment be entered in favor of defendant on all claims and dismissing this case with prejudice. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals . Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have ten days within which to file a response to the objections . Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.