Harrell v. Belyea

JOSHUA NEIL HARRELL, Plaintiff, v. MICHELLE BELYEA, Defendant.

No. 2:15-cv-00576-JAM-AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 13, 2019

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding in this action pro se and in forma pauperis. The action is referred to the undersigned for pretrial proceedings by E.D. Cal. R. ("Local Rule") 302(c)(21).¹ Three matters are before the court: defendant Michelle Belyea's motion for summary judgment (ECF No. 101); plaintiff's motion to strike the summary judgment motion (ECF No. 111); and plaintiff's motion to strike the Declaration of Michelle Belyea (ECF No. 112). For the reasons set forth below, plaintiff's motions are DENIED and it is recommended that defendant's motion for summary judgment be GRANTED.

I. Relevant Procedural Background

The case arises out of plaintiff's arrest and prosecution for commercial burglary (Penal Code § 459) and probation violation (Penal Code § 1203.2), following an alleged shopliftingincident at Walmart on April 17, 2014. ECF No. 15 at 10-24. The criminal case was ultimately dismissed. Id. at 11.

Plaintiff filed this civil action on March 13, 2015 against defendants Rashad Figaro, Walmart, Fairfield Police Department, Solano County District Attorney's Office, Natasha Jontulovich, and District Attorney Donald A. Du Bain. ECF No. 1 at 3. The original complaint alleged that plaintiff's rights had been violated by unlawful arrest, false imprisonment, and malicious prosecution. On screening pursuant to 28 U.S.C.§ 1915(e)(2), the undersigned found that the only viable claim was unlawful arrest against Fairfield Police Officer Michelle Belyea. ECF No. 8 at 6. Plaintiff was granted leave to amend his claims against the other defendants. Id. at 4, 6.

Plaintiff subsequently filed a first amended complaint ("FAC"), containing claims against Belyea, Rashad Figaro, Garrison, and Judge Bowers. ECF No. 15. On screening, the court determined that the complaint stated two viable claims, both against defendant Belyea only: (1) unlawful arrest in violation of the Fourth Amendment, and (2) malicious prosecution in violation of the Fourteenth Amendment, based exclusively upon the allegation that Belyea falsified a police report. Defendants Rashid Figaro, Garrison, and Judge Bowers were dismissed with prejudice. ECF No. 20 (Findings and Recommendations) at 4-7; ECF No. 24 (order adopting Findings and Recommendations).

Defendant Belyea answered the complaint on April 18, 2017. ECF No. 40. She filed a motion for summary judgment on July 9, 2018, which was the deadline for dispositive motions. See ECF Nos. 76 (motion), 52 (scheduling order). The undersigned subsequently vacated the motion without prejudice to re-filing, for procedural noncompliance. ECF No. 100. Defendant re-filed her motion for summary judgment the next day. ECF No. 101. Plaintiff moves to strike defendant's motion as untimely (ECF No. 111) and moves to strike defendant Michelle Beylea's declaration (ECF No. 112) for lack of personal knowledge.

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II. Motions to Strike

Plaintiff's motion to strike defendant's motion for summary judgment, ECF No. 111, will be denied. Plaintiff contends that defendant's motion is untimely because filed after the dispositive motion deadline, but the court expressly granted defendant permission to re-file. ECF No. 100. Plaintiff has had abundant notice of the motion and ample time to prepare a response. The motion to strike is accordingly without merit.

Plaintiff also moves to strike the Declaration of Michelle Belyea filed in support of her motion for summary judgement.² ECF No. 112. Plaintiff argues first that the declaration contains multiple hearsay statements regarding what Belyea was told by "dispatch" and statements from other third parties such as plaintiff and Figaro. ECF No. 112 at 2. He argues second, in a variation of his hearsay objection, that Belyea's declaration was made without personal knowledge. Id. at 3-4.

Plaintiff's objections are not well-taken. The declaration itself is not hearsay, and statements regarding what others told the declarant are not hearsay unless and until they are used in an attempt to prove the truth of the matter asserted in a motion or at trial. See, e.g., Calmat Co. v. U.S. Dep't of Labor, 364 F.3d 1117, 1124 (9th Cir. 2004). Belyea's declaration includes her testimony about what she heard, saw, and did; all topics appropriate for a personal declaration. The court will consider Belyea's account of other peoples' statements only for non-hearsay purposes, and not as evidence of the truth of the matters asserted in the statements. Accordingly, Plaintiff's motion to strike, ECF No. 112, will be DENIED.

III. Motion for Summary Judgment - Judicial Notice

The parties have separately requested that the court take judicial notice of various documents. ECF Nos. 101-4, 77 (defendant's request) and ECF No. 116 (plaintiff's request). This court must, upon request, take judicial notice of any "fact" that is "not subject to reasonable dispute." Fed. R. Evid. 201(b). Facts are indisputable, and thus subject to judicial notice, only if they are either "generally known," or "can be accurately and readily determined from sourceswhose accuracy cannot be reasonably questioned." Fed. R. Civ. P. 201(1), (2); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).

Plaintiff's request for judicial notice is denied. Plaintiff asks the court to take judicial notice of Walmart's hours of operation, policies, and what time the public dressing rooms are closed and locked at the Walmart at issue in this case. ECF No. 85-1 at 2. These are not facts properly subject to judicial notice. Although plaintiff is correct that the court may take judicial notice of a corporation's articles of incorporation and bylaws, he does not attach the articles of incorporation or bylaws and provides no indication that a local store's hours or dressing room policies would be included in these documents. Coal. for a Sustainable Delta v. F.E.M.A., 711 F. Supp. 2d 1152, 1170 (E.D. Cal. 2010). Plaintiff also asks the court to take judicial notice of defendant Michelle Belyea's testimony at the preliminary hearing on May 2, 2014 in Solano County Court Case No. FCR306936, but does not attach any transcripts. ECF No. 116 at 1-2. Because plaintiff's request for judicial notice encompasses only information not properly subject to judicial notice, his request is denied.

Defendant's request for judicial notice is granted. Defendant asks the court to take judicial notice of a certified copy of the incident-related criminal prosecution of plaintiff Joshua Harrell, Solano County Court Case No. FCR306936, which she attached as an exhibit. ECF No. 77 at 1. The court make take judicial notice of "proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007). Defendant's request is therefore granted.

IV. Motion for Summary Judgment - Undisputed Facts

Unless otherwise specified, the following facts are either expressly undisputed by the parties or have been determined by the court, upon a full review of the record, to be undisputed by competent evidence. The defendant's statement of undisputed facts is located at ECF No. 101-3. Plaintiff's responses are located at ECF No. 114.

At approximately 1:26 a.m. on April 17, 2014, Fairfield Police Officer Michelle Belyea was dispatched to the local Walmart for a reported shoplifting. Declaration of Michelle Belyea at ¶ 4. While en route, Belyea heard from dispatch that the suspect was on Alameda Countyprobation for Penal Code § 484 (theft) through November 6, 2014. Id. Dressed in a standard police uniform, Belyea arrived at the Walmart and went to the security office. Belyea Decl. at ¶ 5. There, Belyea encountered Walmart employee Rashad Figaro and plaintiff Joshua Neil Harrell. Id. Figaro described the incident to Belyea, telling her that he saw the plaintiff enter the store around 7:00 p.m. on April 16, 2017. Id. Figaro told Belyea that he recognized Harrell from prior theft cases. Id. Figaro told Belyea that Harrell eventually left the store, but returned about five hours later. Id. Figaro told Belyea that when Harrell returned, Figaro noticed Harrell walk over to the men's clothing section, take a belt off the shelf, put it around his waist, and then pick up a pair of pants and walk into a dressing room with them. Id. Figaro told Belyea that when Harrell left the dressing room, Figaro saw him wearing the belt and pants he picked up from the shelf. Id. Figaro told Belyea that Harrell proceeded to walk around the store for a few minutes before leaving from the front entrance. Id. Figaro told Belyea that, at that time, he contacted Harrell outside the front of the store and detained him for suspected shoplifting. Id. Figaro told Belyea that Harrell walked past the checkout stands without making any attempt to pay for the pants or belt. Id.

Figaro told Belyea that he valued the items in question at $32 ($20 for the pants, and $12 for the belt). Belyea Decl. at ¶ 6. Figaro told Belyea that the pants Harrell originally wore into the store were recovered in the men's dressing room. Id. Upon finishing her conversation with Figaro, Officer Belyea advised Harrell he was under arrest and advised him of his Miranda rights, reading from her department-issued Miranda card. Belyea Decl. at ¶ 8. Upon booking Harrell into jail, Belyea returned the pants and belt to Figaro. Id. at ¶ 9.

Plaintiff was arrested for two crimes: Penal Code § 459 (burglary) (felony) and Penal Code § 1203.2 (probation violation) (felony). Belyea Decl. at ¶ 10. Plaintiff was subsequently prosecuted by the Solano County District Attorney's Office for the alleged § 459 violation, but the prosecution was later reduced to a § 459.5(a). ECF No. 77 at 11-13 (Amended Information). The District Attorney...