Halliday v. Spjute ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MICHAEL IOANE, et al, CASE NO. 1:07-CV-0620 AWI EPG 9 Plaintiffs ORDER RE: MOTION FOR PARTIAL SUMMARY JUDGMENT OR, IN THE 10 v. ALTERNATIVE, FOR AN ORDER TREATING SPECIFIED FACTS AS 11 KENT SPJUTE, et al, ESTABLISHED 12 Defendants (Doc. 506) 13 14 I. History 15 The current Plaintiffs are Michael Ioane Sr. and Shelly Ioane who lived at 1521 Fruitland 16 Ave., Atwater, CA. They are a married couple involved in tax disputes with the United States. 17 Kent Spjute, Jean Noll, Jeff Hodge, Brian Applegate, and Michelle Casarez are Internal Revenue 18 Service agents (“Federal Agents”). Based on the affidavit of Kent Spjute, the United States was 19 able to obtain a search warrant for Plaintiffs’ residence to collect records related to Steven and 20 Louise Booth, clients of Michael Ioane Sr. The search was carried out by Federal Agents 21 (including the previously named individuals) on June 8, 2006. This search forms the basis for the 22 claims in this suit. 23 Michael Ioane Sr. and Shelly Ioane, together with former plaintiffs Glen Halliday, Ashley 24 Ioane, and Michael Ioane Jr., filed suit against the named Federal Agents and the United States on 25 April 20, 2007 and a First Amended Complaint shortly thereafter. Docs. 1 and 39. The case was 26 stayed pending resolution of a criminal case against Michael Ioane Sr. for tax fraud conspiracy, 27 based in part on the evidence seized during the search. Crim. Case. No. 09-0142 LJO. Michael 28 Ioane Sr. was convicted on October 3, 2011 after a jury trial. He appealed the conviction, but it 1 was affirmed. Michael Ioane Sr. has filed a habeas corpus petition under 28 U.S.C. § 2255. In the 2 meantime, the stay was lifted in this case. Doc. 107. 3 Plaintiffs Michael Ioane Sr. and Shelly Ioane originally pursued several causes of action 4 against the United States and the Federal Agents. Through several rounds of motions, the only 5 claims left are Fourth Amendment excessive force claims against Defendants Hodge and 6 Applegate and Fourth Amendment violation of bodily privacy claims against Defendant Noll. 7 Specifically, Plaintiffs allege that Defendants Hodge and Applegate pointed guns at the heads of 8 Plaintiffs and that Defendant Noll insisted upon entering the restroom with Plaintiff Shelly Ioane 9 to witness her relieve herself. 10 In the last summary judgment motion, Defendant Noll sought qualified immunity for her 11 actions in monitoring Plaintiff Shelly Ioane. Doc. 369. Qualified immunity was denied. Doc. 384. 12 In response, Defendant Noll filed a notice of appeal to the Ninth Circuit. Doc. 394. Meanwhile, 13 Defendants filed a motion to bifurcate the claims against Defendant Noll from the claims against 14 Defendants Hodge and Applegate, or in the alternative, to sever the claims. Doc. 398. Plaintiffs 15 opposed the motion. Doc. 401. The request for bifurcation was granted. Doc. 405. The Ninth 16 Circuit affirmed the denial of qualified immunity. Doc. 497. 17 Plaintiff Shelly Ioane filed a motion for partial summary judgment against Defendant Noll. 18 Doc. 506. Defendant Noll opposes the motion. Doc. 508. 19 20 II. Legal Standard 21 Summary judgment is appropriate when it is demonstrated that there exists no genuine 22 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 23 Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. 24 American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary 25 judgment bears the initial burden of informing the court of the basis for its motion and of 26 identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an 27 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); 28 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is “material” if it 1 might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 2 Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat’l Trust & Savings 3 Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is “genuine” as to a material fact if there is 4 sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. 5 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178, 6 1185 (9th Cir. 2006). 7 Where the moving party will have the burden of proof on an issue at trial, the movant must 8 affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. 9 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving 10 party will have the burden of proof on an issue at trial, the movant may prevail by presenting 11 evidence that negates an essential element of the non-moving party’s claim or by merely pointing 12 out that there is an absence of evidence to support an essential element of the non-moving party’s 13 claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving 14 party fails to carry its burden of production, then “the non-moving party has no obligation to 15 produce anything, even if the non-moving party would have the ultimate burden of persuasion.” 16 Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the 17 moving party meets its initial burden, the burden then shifts to the opposing party to establish that 18 a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith 19 Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot “‘rest upon the mere 20 allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific 21 facts showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records, 515 22 F.3d 1019, 1030 (9th Cir. 2008). 23 The evidence of the opposing party is to be believed, and all reasonable inferences that 24 may be drawn from the facts placed before the court must be drawn in favor of the opposing party. 25 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350 26 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the 27 opposing party’s obligation to produce a factual predicate from which the inference may be drawn. 28 See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, 1 Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). “A genuine issue of material fact does 2 not spring into being simply because a litigant claims that one exists or promises to produce 3 admissible evidence at trial.” Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); 4 see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist 5 Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a “motion for summary 6 judgment may not be defeated ...by evidence that is ‘merely colorable’ or ‘is not significantly 7 probative.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS 8 Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in 9 appropriate circumstances to consider materials that are not properly brought to its attention, but 10 the court is not required to examine the entire file for evidence establishing a genuine issue of 11 material fact where the evidence is not set forth in the opposing papers with adequate references. 12 See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non- 13 moving party fails to produce evidence sufficient to create a genuine issue of material fact, the 14 moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz 15 Companies, 210 F.3d 1099, 1103 (9th Cir. 2000). 16 17 III. Analysis 18 Shelly Ioane seeks partial summary judgment to “establish the fact of the bathroom 19 incident: That on June 8, 2006, Agent Noll insisted on accompanying Mrs. Ioane into the 20 bathroom, ordered her to lift up her dress and pull down her underwear, thereby exposing her 21 naked body, and then watched as Mrs. Ioane relieved herself. Furthermore, based on the 22 undisputed facts, this Court should hold that Agent Noll violated Mrs. Ioane’s right to bodily 23 privacy.” Doc. 506-1, 11:16-20. In opposition to the motion, Noll has provided a declaration in 24 which she denies escorting Shelly Ioane to the restroom altogether. Doc. 511, 5:15-24. Noll’s 25 declaration on its own would constitute a genuine material dispute which would preclude grant of 26 summary judgment. Shelly Ioane asks that this declaration be disregarded as a “sham affidavit” 27 for contradicting Noll’s prior sworn statements. Doc. 506-1, 8:21-11:2. Noll opposes the request 28 arguing that her statements have not been contradictory. Doc. 514, 11:11-12:21. Whether or not 1 Noll’s recent declaration may be considered is dispositive to the motion. 2 “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an 3 affidavit contradicting his prior deposition testimony. If a party who has been examined at length 4 on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own 5 prior testimony, this would greatly diminish the utility of summary judgment as a procedure for 6 screening out sham issues of fact.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 7 1991), citations and quotations omitted. A declaration or affidavit will not be disregarded unless 8 two conditions are met. First, “We conclude that the Foster-Radobenko rule does not 9 automatically dispose of every case in which a contradictory affidavit is introduced to explain 10 portions of earlier deposition testimony. Rather, the Radobenko court was concerned with ‘sham’ 11 testimony that flatly contradicts earlier testimony in an attempt to ‘create’ an issue of fact and 12 avoid summary judgment. Therefore, before applying the Radobenko sanction, the district court 13 must make a factual determination that the contradiction was actually a ‘sham.’” Kennedy v. 14 Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). “Second, our cases have emphasized 15 that the inconsistency between a party’s deposition testimony and subsequent affidavit must be 16 clear and unambiguous to justify striking the affidavit.” Van Asdale v. Int’l Game Tech., 577 F.3d 17 989, 998-99 (9th Cir. 2009). 18 In the present case, there is a discrepancy between Noll’s past statements and her current 19 statement but the discrepancy is ambiguous. Noll now states: 20 I stayed outside for the duration of the morning. I have no recollection whatsoever of escorting Mrs. Ioane to the restroom, and I do not recall being alone with Mrs. 21 Ioane at any time during the search. Had I accompanied Mrs. Ioane into the bathroom, I would remember it. I did not do so. As I have previously stated in 22 earlier declarations, it is standard procedure to escort an individual to the restroom during the execution of a search warrant. It is also standard procedure for an agent 23 to monitor an individual while they are in the restroom. In some instances a female agent may be inside the restroom in order to monitor a female using the restroom. 24 In many instances the agent will maintain the individual in their field of vision in order to monitor her activity. But to be clear, if an agent did escort Mrs. Ioane to 25 the restroom and go inside of the restroom, that agent was someone other than me. 26 Doc. 511, 5:15-24. In this statement, Noll unequivocally says that she was not the person who 27 accompanied Shelly Ioane to the bathroom. In the past, she had not directly affirmed or denied 28 that fact and left it ambiguous. 1 Noll’s first declaration from December 2007 only addressed the facts surrounding the 2 excessive force claim and did not include any detail about escorting Shelley Ioane to the 3 bathroom. Doc. 35-7. Noll’s second declaration in November 2012 stated: 4 It is standard procedure to escort an individual to the restroom during the execution of a search warrant. It is also standard procedure for an agent to monitor an 5 individual while they are in the restroom. With males, for instance, the door to the restroom is almost always left open. While females often are afforded more 6 privacy, in some instances a female agent may be inside the restroom in order to monitor a female using the restroom. In many instances the agent will maintain the 7 individual in their peripheral vision in order to monitor her activity. This is not only for the safety of the agents, but also to ensure that an individual does not harm 8 themselves with medication or other substances that may be found in the bathroom. 9 Doc. 131-10, 2:25-3:6. Noll’s third declaration in February 2016 stated: 10 9. I do not recall escorting Ms. Ioane to the restroom and do not recall being alone with her at any time. 11 …. 12 11. It is standard procedure to escort an individual to the restroom during the 13 execution of a search warrant. It is also standard procedure for an agent to monitor an individual while they are in the restroom. In some instances a female agent may 14 be inside the restroom in order to monitor a female using the restroom. In many instances the agent will maintain the individual in their field of vision in order to 15 monitor her activity. 16 Doc. 369-3, 3:7-16. In a February 2013 response to request for admissions, Noll stated 17 Request No. 8: Admit or Deny that Shelly Ioane was escorted to the restroom by I.R.S. Agent(s) whom required her to disrobe and urinate while she/they watched. 18 Response: The Federal Defendant objects to this request for admission because it is 19 a compound request. Subject to and without waiving her general and specific objections, the Federal Defendant denies the admission for lack of personal 20 knowledge. 21 Request No. 9: Admit or Deny that while the violation of Shelly Ioane’s bodily privacy took place the agent(s) watching her urinate were armed with gun(s). 22 Response: The Federal Defendant objects to this request for admission because it is 23 a compound request and calls for a legal conclusion. Subject to and without waiving her general and specific objections, the Federal Defendant denies this 24 request for admission for lack of knowledge. 25 Doc. 506-5, 5:5-16. Similarly, in her February 2014 response to interrogatories, Noll stated: 26 Interrogatory No. 6: Explain why Shelly Ioane was escorted to the restroom, forced to undress in the presence of the agent escorting her and then forced to use the toilet 27 in her escort’s presence. 28 Response: The Federal Defendant objects to this Interrogatory as it is compound 1 without waiving the general and specific objections, the Federal Defendant has no personal knowledge of whether Shelly Ioane was escorted to the restroom or not, 2 nor what may have occurred at such time. 3 Doc. 506-4, 5:5-10. 4 The case law applying this doctrine appears to require explicit, direct contradiction of a 5 form that leaves the firm conclusion that one of the statements is false. See, e.g. Pavel v. Univ. of 6 Or., 2017 U.S. Dist. LEXIS 69102, *18 (D. Or. Apr. 3, 2017) (“the two statements do not clearly 7 and unambiguously conflict because plaintiff’s deposition testimony speaks to defendants’ offer of 8 some time to respond and plaintiffs affidavit speaks to assertion that he did not have sufficient time 9 to meaningfully respond”); Naff v. State Farm Gen. Ins. Co., 2016 U.S. Dist. LEXIS 86854, at 10 *13-14 (E.D. Cal. July 3, 2016) (“Defendant asserts the classification of items as ‘gifts’ to her 11 children, including CDs, DVDs, and game consoles indicates the declaration is a sham. Defendant 12 contends that Mrs. Naff ‘Declared under Penalty of Perjury to the United States Bankruptcy Court 13 for the Eastern District of California that she made no such gifts.’ Notably, in the declaration Mrs. 14 Naff does not indicate who the gifts were from, whether from her, her husband or Mrs. Naff’s 15 father—who gave her ‘several hundred dollars, if not more’ each month for several years—or 16 when the gifts were received by her children. Thus, the evidence is ambiguous such that there is 17 not a clear conflict between the declaration and the representation made to the Bankruptcy 18 Court”); Bakersfield Pipe & Supply, Inc. v. Cornerstone Valve, LLC, 2016 U.S. Dist. LEXIS 19 83908, *29 (E.D. Cal. June 28, 2016) (“at his deposition, Smith testified that it was ‘not [his] 20 custom and practice in…35 years of experience requiring a down payment.’ Defendants argue 21 Smith’s later statement in the declaration that he ‘saw no reason to object to the deposit’ is 22 ‘inconsistent’ with the prior testimony. However, there is no conflict between the two statements. 23 The fact that he chose to accept a down payment that was offered by the defendants does not 24 contradict his practice of not requiring a down payment”); Taylor v. Shippers Transp. Express, 25 Inc., 2014 U.S. Dist. LEXIS 180061, *12-13 (C.D. Cal. Sep. 30, 2014) (“Plaintiffs object to Mr. 26 Alvarez’s statement that STE’s ‘[safety] meetings are not mandatory, are infrequent, and drivers 27 suffer no repercussions if they do not attend.’ Mr. Alvarez stated in his deposition that the Drivers 28 attended a safety meeting that occurred on January 8, 2011. Mr. Alvarez’s later testimony in his 1 declaration does not contradict that assertion. In his declaration, Mr. Alvarez is clearly referring to 2 safety meetings in general, over the course of several years, whereas his deposition testimony is 3 limited to one meeting in January 2011”). In determining what constitutes direct contradiction, all 4 reasonable inferences must be made in favor of the non-moving party. See Bautista v. 5 Transoceanic Cable Ship Co. LLC, 2019 U.S. Dist. LEXIS 187587, *10 (D. Haw. Oct. 29, 2019) 6 (“Viewing this in the light most favorable to Plaintiff, as the court must at this stage, such 7 testimony is not entirely contradicted nor inconsistent with his Declaration stating…”). 8 Making inferences in favor of Noll, the non-moving party, her earlier statements assert that 9 she did not recall escorting Shelly Ioane to the bathroom or know if that was done on June 8, 2006 10 but that standard police procedure would have been to observe her while she used the facilities. 11 Noll’s recent statement directly states that she did not recall escorting Shelly Ioane and that she is 12 confident she would remember if she had done so. Taken strictly on their face, these statements 13 do not directly contradict each other. A key fact is that Noll has not been deposed as part of this 14 case; she has not had to answer direct questions about whether she escorted Shelly Ioane to the 15 bathroom. Significantly, “a district court may find a declaration to be a sham when it contains 16 facts that the affiant previously testified he could not remember.” Yeager v. Bowlin, 693 F.3d 17 1076, 1080 (9th Cir. 2012). But, we do not have a prior statement in which Noll asserted that she 18 could not remember what happened. Her prior statement is that “I do not recall escorting Ms. 19 Ioane to the restroom.” Doc. 369-3, 3:7-8. Shelly Ioane seems to assume that the statement means 20 that Noll does not recall if she escorted Shelly Ioane to the restroom. However, the statement 21 could also mean that Noll does not recall doing so. The latter interpretation is supported by Noll’s 22 statement that “the Federal Defendant has no personal knowledge of whether Shelly Ioane was 23 escorted to the restroom or not, nor what may have occurred at such time.” Doc. 506-4, 5:9-10. 24 Noll’s recent statement can be seen as an elaboration on her prior statements. When a subject is 25 not explored during deposition, a later declaration that provides additional detail on that subject 26 does not constitute a contradiction. See McMahon v. Valenzuela, 2015 U.S. Dist. LEXIS 129457, 27 *25 (C.D. Cal. Sep. 24, 2015) (“The fact that McMahon ‘at no point in time [during her 28 deposition] indicated that any threats were made to her by Officer Valenzuela’ does not render wOAOe 460 FOUN OUI OMIM ON ee AY VI 1 | more recent statements in her declaration regarding such alleged threats ‘contradictory’ or a ‘sham’”). 3 Shelly Ioane’s motion for partial summary judgment to establish “That on June 8, 2006, 4 | Agent Noll insisted on accompanying Mrs. Ioane into the bathroom, ordered her to lift up her 5 | dress and pull down her underwear, thereby exposing her naked body, and then watched as Mrs. 6 | Ioane relieved herself” is completely dependent on establishing that Noll’s recent declaration is a 7 | sham affidavit. As the declaration does not merit that designation, Shelly Ioane’s motion must be 8 | denied. 9 10 IV. Order 11 Shelly Ioane’s motion for partial summary judgment is DENIED. 12 13 IT IS SO ORDERED. 14 | Dated: _July 24, 2020 7 Sz 7 Cb Lec -_-SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OQ