Larios v. Lunardi

442 F.Supp.3d 1299

Timothy LARIOS, Plaintiff,

v.Scott LUNARDI, Kyle Foster, Robert J. Jones, Defendants.

No. 2:15-cv-02451-JAM-DMC

United States District Court, E.D. California.

Signed March 5, 2020

Anthony Martin Boskovich, Law Offices of Anthony Boskovich, Williamstown, MA, Michael G. Ackerman, The Law of Michael G. Ackerman, Santa Clara, CA, for Plaintiff.

Kristin Marie Daily, Attorney General Office for the State of California, Sacramento, CA, William H. Downer, Office of The Attorney General, Department of Justice, Sacramento, CA, for Defendants.

ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

In November 2015, Plaintiff filed a two-count complaint against Joseph Farrow, the Commissioner of the California Highway Patrol ("CHP") and five CHP officers: Scott Lunardi, Mel Hutsell, T. A. Garr, Kyle Foster, and R. J. Jones. Compl., ECF No. 1. He alleged Defendants violated his rights under Section 1983 and California Civil Code § 52.1 ("Bane Act"). The complaint set forth several theories of liability on each claim, alleging violations of the First, Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments. Compl. ¶¶ 34-40. Defendants' motions to dismiss narrowed the scope of litigation. See ECF Nos. 12, 15, 24. The Court dismissed all of Plaintiff's claims against Lunardi, Foster, and Jones except the Bane Act and Section 1983 claims premised upon their alleged Fourth Amendment violations. November 10, 2016 Memo. and Order, ECF No. 22. The Court also dismissed Farrow, Hutsell, and Garr from the suit. Id.; May 15, 2017 Memo. and Order, ECF No. 28.

Defendants now request summary judgment on Plaintiff's remaining claims.¹ Mot. for Summ. J. ("Mot."), ECF No. 42. Plaintiff filed an opposition to Defendants' motion, Opp'n, ECF No. 52, to which Defendants replied. Reply, ECF No. 53. For the reasons discussed below, the Court grants Defendants' motion for summary judgment on Plaintiff's Bane Act claim against Lunardi, Jones, and Foster, as well as his Section 1983 claim against Foster. The Court also grants Defendants' motion for summary judgment on Plaintiff's Section 1983 claim against Lunardi and Jones to the extent that it rests upon the theory that they conducted an unconstitutional search.

The Court, however, finds Defendants did not address the unlawful seizure theory of Plaintiff's Fourth Amendment claim until their reply brief. Reply at 6-8, ECF No. 53. The Court will allow Plaintiff to file a surreply addressing Defendants' argument that the Court should grant summary judgment on his claim that Defendants conducted an unlawful seizure by downloading the contents of his personal phone onto a CHP computer. Plaintiff must file his surreply within seven (7) days of this Order. It need not include an "introduction" or "factual background" section and shall not exceed ten (10) pages. Defendants may not file a response.

I. BACKGROUND

Plaintiff previously worked as a California Highway Patrol ("CHP") officer. Plf.'s Response to Defs.' Statement of Undisputed Facts ("RSUF") ¶ 1, ECF No. 52-1. In the final two years he worked for CHP, Plaintiff was an agent with the Shasta Interagency Narcotics Task Force ("SINTF"). RSUF ¶ 2. In this role, Plaintiff communicated with confidential informants. RSUF ¶ 3. Under SINTF policy, "[a]n informant is a person, not a member of law enforcement, who provides law enforcement information or assistance concerning suspected criminal activity." RSUF ¶ 55 (citing SINTF Informant Management Policy § 10.1). The policy prohibits agents from having relationships with informants that are not "completely ethical and professional in nature." RSUF ¶ 56. An agent may not contact an informant without other law enforcement present and may not be alone with an informant absent prior approval. Id.

Plaintiff began communicating with confidential informant, Tawnya Mellow, during SINTF's investigation of a suspected marijuana dealer named Nathan Santana. RSUF ¶ 9. Mellow provided information that allowed Plaintiff to obtain a search warrant for Santana's residence. RSUF ¶ 10. Plaintiff executed the warrant, uncovered contraband, and arrested Santana. Id. The Shasta County Deputy District Attorney charged Santana with three felony offenses. RSUF ¶ 10-11.

Plaintiff used his personal cell phone to communicate with Mellow. RSUF ¶ 8. SINTF issues its agents cell phones to use for "SINTF business" such as speaking with informants. RSUF ¶ 7. Although SINTF policy allows agents to use their personal phones for SINTF business, it prohibits them from storing state work on their personal phones. RSUF ¶ 4(citing CHP General Order 100.95). Rather, agents who produce CHP work product on their personal devices must then transfer that work to an electronic data storage device. Id. CHP policy states, "[w]ork stored on any type of electronic device is the property of the state and must be relinquished on demand." Id. Plaintiff received and reviewed this policy when he was a SINTF agent. RSUF ¶ 5.

Plaintiff continued to speak with Mellow after Santana's arrest. RSUF ¶ 85. He did not, however, continue to abide by SINTF's policy for agent-informant communication. RSUF ¶¶ 96-97. By January 2014, Mellow and Plaintiff were romantically involved. RSUF ¶ 103. Plaintiff engaged in a range of misconduct to pursue and protect his relationship with Mellow in the nine months that followed. See RSUF ¶¶ 14-16, 19. Specifically, Plaintiff made false reports to law enforcement dispatch; disclosed confidential automated records to without authorization; revealed confidential information about SINTF operations; lied to his SINTF commander about his relationship with Mellow; and coordinated with Mellow to cover up their affair. Id.

In September 2014, the CHP Internal Affairs Section began investigating Plaintiff's relationship with Mellow. RSUF ¶ 44. This investigation came on the heels of a domestic incident at Mellow's home involving Plaintiff. On August 31, 2014, Plaintiff left a greeting card on a car in Mellow's front yard. RSUF ¶ 48. The card revealed Plaintiff's romantic feelings for Mellow and included statements such as:

• "Since our first date (12/6/13), I have not been the same... And our walk across the bridge and kiss on the cheek shortly after your innocent text ‘Marry me’ has me wanting to ask you the same thing.";

• "Please know I want to spend forever with you as us !!!";

• "I want to make you happier than you've ever been before, just like you were in Tahoe...."; and

• "I love you for who you are Tawnya Rachelle and want nothing more than to unite as one!!"

RSUF ¶¶ 68, 70. Santana discovered the card and forced Mellow to tell him who sent it. RSUF ¶¶ 46-47, 59. After Santana left, Mellow's daughter called the police. RSUF ¶ 83. Mellow told the responding officers that Santana struck her in the face and threatened to kill her if she didn't tell him who left the card. RSUF ¶ 48. The officers then told Commander James about Plaintiff's involvement. RSUF ¶ 80.

Investigators Scott Lunardi and Mel Hutsell led the Internal Affairs investigation. RSUF ¶ 44. They interviewed Mellow, Santana, James, and several SINTF agents. RSUF ¶¶ 57, 62, 76, 96-97. They also reviewed Plaintiff's personnel file, Plaintiff's SINTF phone, the greeting card Plaintiff sent Mellow, Mellow's domestic violence report, closed incident reports and audio reports Plaintiff made about Mellow, and materials relating to both state and federal criminal investigations of Santana. RSUF ¶¶ 45, 47, 49, 51, 53, 68, 74, 95. Based on the information Lunardi and Hutsell gathered, they developed reasonable suspicion that Plaintiff and Mellow were in a romantic relationship prohibited by CHP policy. RSUF ¶ 103. The investigators also suspected, given the absence of texts with Mellow on Plaintiff's SINTF phone, that Plaintiff was using his personal device to contact her. RSUF ¶ 104.

The Internal Affairs Section Commander, R.J. Jones, ordered Plaintiff to produce his personal cell phone so investigators could search the device for work product. RSUF ¶¶ 105, 109-10. Plaintiff initially refused, but ultimately turned over his phone. RSUF ¶ 111, 113. Lunardi, along with CHP Officer Kevin Domby and Computer Crimes Investigator Curtis Duray, attempted to extract Plaintiff's texts with Mellow from Plaintiff's phone. RSUF ¶ 114. After two of the department's forensic extraction tools failed to connect with Plaintiff's phone, the officers tried to video record the string of messages in Plaintiff and Mellow's text thread. RSUF ¶¶ 115-16. The investigators found this approach proved too time intensive, so they created a backup of Plaintiff's entire phone on Duray's computer. RSUF ¶¶ 117, 119. The investigators then extracted Plaintiff's messages with Mellow from that backup. RSUF ¶ 123.

II. OPINION

A. Request for Judicial Notice

Federal Rule of Evidence 201 permits a court to "judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." FRE 201(b).

Plaintiff requests the Court take judicial notice of the following filings in this proceeding:

• Plaintiff's compliant, filed November 24, 2015;

• The Court's November 14, 2016 order and memorandum;

• Plaintiff's second amended complaint, filed November 23, 2016; and

• Defendants' answer to Plaintiff's second amended complaint, filed May 15, 2017.

Plf.'s Request for Judicial Notice ("Plf.'s RJN"), ECF No. 52-4. The Court need not take judicial notice of prior filings in its own case. See Hardesty v. Sac. Metropolitan Air Quality Management Dist., 935 F.Supp.2d 968, 979 (E.D. Cal. 2013). The Court therefore denies Plaintiff's request for judicial notice.

Defendants also filed a request for judicial notice. Defs.' RJN, ECF No. 42-4. Defendants request the Court take judicial notice of:

• Eastern District

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