Pitts v. Baumgartner ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 GERALD PITTS, No. 2:20-cv-01243 WBS JDP 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS PLAINTIFF’S 15 CALIFORNIA HIGHWAY PATROL FIRST AMENDED COMPLAINT OFFICERS D. BAUMGARTNER, 16 HARDMAN, SKINNER, LANGFORD, DOES 1-25, 17 Defendants. 18 19 ----oo0oo---- 20 Defendants move to dismiss plaintiff’s deliberate 21 fabrication of evidence and retaliation claims for failure to 22 state a claim pursuant to Federal Rule of Civil Procedure 23 12(b)(6). (Docket No. 22.) 24 I. Factual and Procedural Background 25 The factual background of this case is described in 26 detail in the court’s June 14, 2022 Order (Docket No. 20), which 27 granted defendants’ motion to dismiss plaintiff’s claims for 28 1 deliberate fabrication of evidence and malicious prosecution. 2 (Docket No. 9.) In short, plaintiff was stopped by defendants, 3 California Highway Patrol officers, while driving home from a 4 bar. (First Am. Compl. (“FAC”) ¶¶ 9-12 (Docket No. 21).) 5 Plaintiff alleges that upon informing defendant Baumgartner that 6 he would not answer his questions and that defendants could 7 contact plaintiff’s lawyer, defendants told plaintiff he was 8 under arrest and used excessive force on him. (Id. ¶¶ 16-20.) 9 Subsequently, plaintiff was charged with driving under 10 the influence, attempting to take an officer’s firearm in 11 violation of California Penal Code section 148(d), and resisting 12 or preventing an officer from performing his duties in violation 13 of California Penal Code section 69. (Id. ¶ 21.) Plaintiff 14 alleges that defendant Langford submitted a false police report 15 in which it was stated that plaintiff grabbed the handle of 16 Langford’s firearm and attempted to take it from him. (Id. ¶ 17 22.) After two years, the charges for California Penal Code 18 sections 148(d) and 69 were dismissed. (Id. ¶ 24.) 19 Plaintiff’s first amended complaint alleges the 20 following claims: (1) excessive force in violation of the Fourth 21 Amendment against all defendants; (2) deliberate fabrication of 22 evidence in violation of the Fourteenth Amendment against 23 Langford; and (3) retaliation in violation of the First and Fifth 24 Amendments against all defendants. 25 II. Discussion 26 A. Deliberate Fabrication of Evidence 27 To state a plausible claim for deliberate fabrication 28 of evidence, plaintiff must “(1) identify the evidence alleged to 1 have been fabricated; and (2) state facts to show that the 2 fabrication was deliberate.” Trulove v. City and Cnty. of San 3 Francisco, No. 16-050, 2016 WL 5930634, at *5 (N.D. Cal. Oct. 12, 4 2016) (citing Bradford v. Scherschligt, 803 F.3d 382, 386 (9th 5 Cir. 2015)). Plaintiff can prove deliberate fabrication 6 “directly, such as by proving that the defendant reported 7 information known to be false.” Id. Deliberate fabrication can 8 also be shown by circumstantial evidence that defendant (1) 9 “continued his investigation of the plaintiff even though he knew 10 or should have know that the plaintiff was innocent;” or (2) 11 “used investigative techniques that were so coercive and abusive 12 that he knew or should have known that those techniques would 13 yield false information.” Bradford, 803 F.3d at 386. 14 Here, plaintiff alleges that Langford “submitted a 15 false police report in which it was stated that the Plaintiff 16 grabbed the handle of his firearm and attempted to take it from 17 him, which Langford knew was false.” (FAC ¶ 38.) Plaintiff also 18 alleges that the charges against him based on this statement in 19 the police report were later dismissed. (Id. ¶ 24.) These 20 allegations plausibly state a claim for deliberate fabrication of 21 evidence. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] 22 complaint must contain sufficient factual matter, accepted as 23 true, to state a claim for relief that is plausible on its 24 face.”) (quotations omitted). If the statement that plaintiff 25 grabbed the handle of Langford’s firearm and attempted to take it 26 from him is false, all plaintiff can be expected to allege is 27 that it did not happen. That is plausible on its face.i 28 1 2 Accordingly, the court will deny defendants’ motion to 3 dismiss plaintiff’s deliberate fabrication of evidence claim. 4 B. Retaliation 5 Plaintiff alleges that defendants retaliated against 6 him for exercising his “First and Fifth Amendment rights to 7 remain silent” “when they deliberately and intentionally threw 8 [him] to the ground and repeatedly slammed his head onto 9 pavement, causing him to suffer a concussion.” (FAC ¶ 43.) 10 Defendants argue that to the extent plaintiff’s claim 11 is based upon the Fifth Amendment it fails because his silence 12 was never used against him in a criminal case. (Mot. to Dismiss 13 at 8.) Plaintiff does not disagree with this argument. (See 14 Pl.’s Opp’n at 7-9 (Docket No. 24).) “[A] violation of the 15 constitutional right against self-incrimination occurs only if 16 one has been compelled to be a witness against himself in a 17 criminal case.” Chavez v. Martinez, 538 U.S. 760, 770 (2003). 18 The FAC contains no factual allegations demonstrating that 19 plaintiff’s silence was used against him in a criminal case. 20 Accordingly, to the extent that plaintiff’s retaliation claim is 21 based upon the Fifth Amendment it will be dismissed. 22 To bring a First Amendment retaliation claim under § 23 1983, a plaintiff must allege that (1) he engaged in a 24 constitutionally protected activity; (2) the defendants’ actions 25 would chill a person of ordinary firmness from continuing to 26 engage in the protected activity; and (3) the protected activity 27 was a substantial motivating factor in the defendant’s conduct -- 28 i.e., that there was a nexus between the defendant’s actions and 1 an intent to chill speech. See Ariz. Students’ Ass’n v. Ariz. 2 Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (internal 3 citations omitted). To prevail on such a claim, a plaintiff need 4 only show that the defendant intended to interfere with the 5 plaintiff’s First Amendment rights and that he suffered some 6 injury as a result; the plaintiff is not required to demonstrate 7 that his speech was actually suppressed or inhibited. See id. 8 Plaintiff has adequately pled a claim of First 9 Amendment retaliation. Plaintiff alleges that he exercised his 10 right to remain silent and then defendants threw him to the 11 ground and slammed his head onto the pavement. (FAC ¶ 43.) 12 Plaintiff also establishes the “substantial motivating factor” 13 prong through “evidence of temporal proximity between the 14 protected activity and alleged retaliatory conduct to demonstrate 15 that the defendant[s’] purported reasons for [their] conduct are 16 pretextual or false.” See Ariz. Students’ Ass’n, 824 F.3d at 17 870 (internal citations omitted). Here, the FAC’s factual 18 allegations demonstrate the close temporal proximity between 19 plaintiff informing defendants that he would not answer their 20 questions and that they could contact his lawyer, to when 21 defendants allegedly took plaintiff out of the car and threw him 22 onto the ground. (FAC ¶¶ 16-20.) 23 Accordingly, the court will dismiss plaintiff’s 24 retaliation claim only to the extent it is based upon the Fifth 25 Amendment. 26 IT IS THEREFORE ORDERED that defendants’ motion to 27 dismiss (Docket No. 22) be, and the same hereby is GRANTED with 28 respect to plaintiff’s claim for retaliation to the extent it is eee nee IE RI RO RED EO 1 | based upon the Fifth Amendment and DENIED in all other respects. 2 Plaintiff has twenty days from the date this Order is 3 signed to file an amended complaint if he can do so consistent 4 with this Order. 5 | Dated: September 7, 2022 bette 2d. □□ 6 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 7 8 9 i Plaintiff’s original complaint (Docket No. 1), contained the 10 following allegation: “After the Plaintiff was already lying on his stomach and handcuffed, it is alleged and believed that 11 Defendant Langford started yelling, ‘he’s going for my gun, he’s going for my gun.’” (Compl. FI 21.) Defendants argue that by 12 omitting this statement in the FAC, plaintiff “conveniently deleted allegations . . . that defeats the claim that Defendant 13 | Langford knowingly made an untrue statement on the police report,” and therefore, due to these “inconsistent” or 14 “contradictory” allegations the claim should be stricken. (Mot. 15 to Dismiss at 5.) The court does not see the omission of that allegation as creating an inconsistency between the original 16 complaint and the FAC. Moreover, regardless of whether the omitted allegation would defeat the claim, “[t]he district court 17 has no free-standing authority to strike pleadings simply because it believes that a party has taken inconsistent positions in the 18 litigation.” PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 19 859 (9th Cir. 2007). Absent a showing of bad faith, “there is nothing in the Federal Rules of Civil Procedure to prevent a 290 | party from filing successive pleadings that make inconsistent or even contradictory allegations.” Id. at 860. Here, there is no 21 showing of bad faith. 22 23 24 25 26 27 28