Kastis v. Alvarado

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DIMITRIOS KASTIS, No. 1:18-cv-01325-DAD-BAM

12 Plaintiff,

13 v. ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS IN PART

14 JOE ALVARADO, et al.,

(Doc. No. 27)

15 Defendants.

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17 This matter is before the court on a motion to dismiss plaintiff Dimitrios Kastis’ second

18 amended complaint (“SAC”) brought on behalf of defendants Joe Alvarado, Matt Basgall, and the

19 City of Clovis (“the City”) (collectively, “defendants”). (Doc. No. 27.) A hearing on the motion

20 was held on December 17, 2019. Attorney Suzanne Skolnick appeared telephonically on behalf

21 of plaintiff, and attorney Diana Lee Field appeared telephonically on behalf of defendants. The

22 court has considered the parties’ briefs and oral arguments, and for the reasons set forth below,

23 will grant defendants’ motion to dismiss in part.

24 BACKGROUND

25 In his SAC plaintiff alleges as follows. The Clovis Police Department (“CPD”) is an

26 agency of the City. (Doc. No. 19 (“SAC”) at ¶ 7.) Defendant Alvarado was at all relevant times

27 a CPD officer who “participated in the arrest, investigation[,] and imprisonment of Plaintiff.” (Id.

28 at ¶ 8.) Defendant Basgall was at all relevant times the Chief of Police for the City. (Id. at ¶ 9.)

1 On June 9, 2007, after receiving an anonymous report from a woman claiming that a

2 neighbor had kissed a nine-year old girl, CPD initiated a child molestation investigation targeting

3 plaintiff. (Id. at ¶ 16.) On July 5, 2007, a search warrant was sought and obtained from a judge

4 of the Fresno County Superior Court (“the superior court”) based on an affidavit prepared by

5 defendant officer Alvarado. (Id. at ¶ 17.) That search warrant affidavit set forth the following

6 facts: (1) CPD received a report that plaintiff had invited three minor females into his apartment

7 for candy and Gatorade and then blocked one of them (identified in the SAC as “CV1”) in the

8 doorway and quickly kissed her five times; (2) CV1 had previously seen plaintiff purposely grab

9 another girl’s (identified in the SAC as “CV2”) buttocks while they were playing soccer; (3) CV2

10 reported that plaintiff had previously invited her to get candy from a bowl in his apartment and

11 allegedly placed his hands over her shoulders and onto her chest; and (4) plaintiff had previously

12 taken a photograph of CV2 while she was wearing her bathing suit and allegedly used that

13 photograph as a screensaver for his computer. (Id. at ¶ 17.) “[T]he warrant that issued authorized

14 the search of Plaintiff’s apartment for various items including: Computer systems located in the

15 residence; a candy bowl; . . . and a digital camera.” (Id. at ¶ 18.) Defendant Alvarado’s affidavit

16 also contained his opinions based on his training and experience as to individuals who produce,

17 trade, distribute, and/or possess child pornography. (Id.) Based on those opinions, the warrant

18 “broadly listed the following additional property to be searched for and seized,” including “[a]ll

19 electronic processing and storage devices, computers[,] and computer systems” and “photos and

20 other records which depict possession/sales of stolen property.” (Id.)

21 On July 5, 2007, CPD executed the search warrant and plaintiff was arrested and charged

22 in the Fresno County Superior Court with annoying or molesting a child in violation of the

23 California Penal Code. (Id. at ¶¶ 15, 20.) On August 4, 2008, while plaintiff was in local

24 custody, a federal criminal complaint was filed against him in this U.S. District Court, charging

25 him with possession and distribution of child pornography in violation of 18 U.S.C.

26 § 2252(a)(2), (4). (Id. at ¶ 21.) The federal criminal complaint was based on items seized

27 pursuant to the July 5, 2007 state court issued search warrant. (Id.) On August 14, 2008, plaintiff

28 was indicted by a federal grand jury on the same charges alleged in the federal complaint. (Id.)

1 On April 6, 2016, almost nine years after his arrest, all of the state charges brought against

2 plaintiff were dismissed. (Id. at ¶ 22.) On April 7, 2016, plaintiff appeared in his federal criminal

3 case. (Id.) Thereafter, plaintiff moved to suppress the evidence gathered pursuant to the state

4 court issued July 5, 2007 warrant in his federal case. (Id. at ¶ 23.) On August 30, 2018, the

5 undersigned granted plaintiff’s motion to suppress, finding that the search warrant was issued

6 based on false and misleading statements and omissions made by defendant Alvarado in his

7 affidavit in support of his request for the search warrant, in violation of Franks v. Delaware, 438

8 U.S. 154 (1978). (Id. at ¶ 29.) Following the suppression of all evidence seized pursuant to the

9 search warrant tainted by the Franks violation, the federal charges against plaintiff were also

10 dismissed on September 7, 2018. (Id.)

11 In his SAC plaintiff asserts the following causes of action:1 (1) unreasonable search and

12 seizure, judicial deception, and false evidence claims in violation of plaintiff’s Fourth, Fifth, and

13 Fourteenth Amendment rights against defendant Alvarado; (2) Brady violation claims against

14 defendant Alvarado; (3) a municipal liability claim against the City; and (4) a supervisory liability

15 claim against defendant Basgall. (Id. at ¶¶ 41–66.) On November 18, 2019, defendants filed the

16 pending motion to dismiss. (Doc. No. 27.) On December 3, 2019, plaintiff filed his opposition to

17 that motion, and on December 10, 2019, defendants filed their reply thereto. (Doc. Nos. 28, 29.)

18 LEGAL STANDARD

19 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

20 is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d

21 578, 581 (9th Cir. 1983). A dismissal may be warranted where there is “the lack of a cognizable

22 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri

23 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts

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1 The manner in which plaintiff has elected to assert his claims in the SAC is confusing. For

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example, the first cause of action, labeled “Deprivation of Civil Rights – 42 U.S.C. § 1983,”

26 appears to include separate claims for “Unreasonable Search & Seizure/Judicial Deception/False

Evidence” under the “Fourth, Fifth, and Fourteenth Amendments – Individual Liability” against

27 defendant Alvarado. To the extent that any of plaintiff’s causes of action combine several

individual claims, he is directed to separately assert each of his claims in any third amended

28 complaint he may elect to file.

1 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

2 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows

3 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

5 In evaluating whether a complaint states a claim on which relief may be granted, the court

6 accepts as true the allegations in the complaint and construes the allegations in the light most

7 favorable to the plaintiff.2 Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United

8 States, 915 F.2d 1242, 1245 (9th Cir. 1989), abrogated on other grounds by DaVinci Aircraft,

9 Inc. v. United States, 926 F.3d 1117 (9th Cir. 2019). However, the court will not assume the truth

10 of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v.

11 Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Federal Rule of Civil Procedure 8(a) does

12 not require detailed factual allegations, “[t]hreadbare recitals of the elements of a cause of action,

13 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 676. A complaint

14 must do more than allege mere “labels and conclusions” or “a formulaic recitation of the elements

15 of a cause of action.” Twombly, 550 U.S. at 555.

16 ANALYSIS

17 Defendants advance multiple arguments in support of their motion to dismiss. Each is

18 addressed in turn below.

19 A. The SAC Plausibly Alleges a Judicial Deception Claim Against Defendant Alvarado

20 Plaintiff alleges that defendant Alvarado’s affidavit in support of the July 5, 2007 state

21 court issued search warrant contained false and misleading statements and omitted material

22 information in violation of his Fourth Amendment rights. Defendant Alvarado argues that

23 plaintiff’s allegations fail to state a cognizable judicial deception claim. (Doc. No. 27-1 at 15.)

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2 In moving to dismiss, defendants rely on asserted facts not alleged by plaintiff in his SAC. (See

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Doc. No. 27-1 at 7–13.) The court will not consider these facts asserted by defendants in ruling

26 upon the pending motion to dismiss because at this stage of the litigation “[t]he court

generally may not consider materials other than facts alleged in the complaint and documents that

27 are made a part of the complaint.” Tosh Berman v. McLaren Auto., Inc. et al, No. 2:19-cv-05808-

AB-JPR, 2019 WL 8219485, at *1 (C.D. Cal. Nov. 26, 2019) (citing Anderson v. Angelone, 86

28 F.3d 932, 934 (9th Cir. 1996)).

1 To state a § 1983 claim asserting a Franks violation, a plaintiff must “allege facts

2 supporting an allegation of fraud or misrepresentation by the affiant officer in obtaining the

3 warrant from the magistrate.” Freeman v. City of Fresno, No. 1:05-cv-00328-OWW-SMS, 2005

4 WL 1378946, at *9 (E.D. Cal. June 7, 2005). “Some courts refer to a Franks violation as a

5 ‘judicial deception’ claim.” Dunnigan v. Santa Monica Police Chief, No. 2:18-cv-01024 GW-

6 AS, 2018 WL 5936850, at *5 n.5 (C.D. Cal. Aug. 14, 2018) (citing Whitaker v. Garcetti, 486

7 F.3d 572, 581 (9th Cir. 2007) (“A seizure conducted pursuant to a warrant obtained by judicial

8 deception violates the Fourth Amendment.”)). When asserting a claim for judicial deception in

9 violation of one’s Fourth Amendment rights, “a § 1983 plaintiff must show that the investigator

10 made deliberately false statements or recklessly disregarded the truth in the affidavit and that the

11 falsifications were material to the finding of probable cause.” Galbraith v. Cty. of Santa Clara,

12 307 F.3d 1119, 1126 (9th Cir. 2002) (internal quotation marks and citation omitted). “To

13 determine the materiality of omitted facts, [courts] consider whether the affidavit, once corrected

14 and supplemented, establishes probable cause.” Bravo v. City of Santa Maria, 665 F.3d 1076,

15 1084 (9th Cir. 2011) (internal quotation marks and citation omitted). A plaintiff must allege, and

16 ultimately establish, that “without the dishonestly included or omitted information, the magistrate

17 would not have issued the warrant. Put another way, the plaintiff must establish that the

18 remaining information in the affidavit is insufficient to establish probable cause.” Hervey v.

19 Estes, 65 F.3d 784, 789 (9th Cir. 1995), as amended on denial of reh’g (Dec. 5, 1995).

20 Here, defendant Alvarado argues that the SAC does not plausibly allege a judicial

21 deception claim against him because plaintiff “failed to provide sufficient factual information

22 regarding the circumstances of [the] alleged falsehoods.” (Doc. No. 27-1 at 16.) Defendant

23 Alvarado therefore contends that the SAC does not plausibly allege that he acted deliberately or

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1 with reckless disregard for the truth in swearing to the truth of his supporting affidavit. 3 (Id.)

2 The court is not persuaded by defendant Alvarado’s argument in this regard. The SAC alleges

3 that defendant Alvarado included the following false or misleading statements in his search

4 warrant affidavit: (1) that CV1 walked into plaintiff’s apartment when, in fact, CV1 reported to

5 law enforcement that she had “tripped into the apartment”; (2) that CV1’s mother advised law

6 enforcement that CV1 had told her that plaintiff had cornered her in his apartment’s doorway and

7 kissed her on the mouth five times when, in fact, this statement was relayed to law enforcement

8 by CV1 herself; (3) that CV2 stated that plaintiff had taken several photos of her in a bathing suit

9 using his camera when, in fact, during her interview with law enforcement, CV2 had only

10 reported a single photo taken of her in a bathing suit by plaintiff; and (4) that CV2 stated that

11 plaintiff “always touches her butt when they go swimming in the apartment complex pool” when,

12 in fact, CV2 only reported that plaintiff had touched her buttocks on one occasion while

13 swimming. (Id.) With respect to material omissions, plaintiff alleges that defendant Alvarado did

14 not include in his affidavit: (1) that a law enforcement officer felt that CV1 was being deceptive

15 about how she entered plaintiff’s apartment; (2) that CV2 stated that, on one occasion, she had

16 jumped on plaintiff’s back; (3) that neither CV1 nor her parents made a complaint to the police;

17 (4) the “inconsistencies . . . regarding the date of the alleged kissing incident,” which ranged from

18 months to a year; and (5) that CV1 had told law enforcement that “CV2 and her sister had thrown

19 dirt and strawberries at Plaintiff’s door.” (SAC at ¶¶ 25, 26.) Plaintiff also alleges that “Alvarado

20 knew he had developed no evidence indicating [that] Plaintiff possessed lewd or lascivious

21 photographs of children or child pornography,” but nevertheless “cut and pasted several

22 paragraphs from a prior child pornography search warrant.” (Id. at ¶ 27.)

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3 Defendants also contend that plaintiff is relying on the finding of a Franks violation and the

24 granting of his motion to suppress evidence by the undersigned in his federal criminal prosecution

to establish his claims in this civil action. (Doc. No. 29 at 6.) Defendants argue that the finding

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of a Franks violation and the granting of that motion to suppress evidence “provides neither

26 collateral estoppel nor res judicata of the issue of probable cause” in this civil action. (Id.)

However, even a perfunctory review of the SAC reveals that plaintiff is not relying on the

27 undersigned’s pretrial ruling in his federal criminal case in this civil action. Indeed, besides

referring to it once in the SAC as part of the factual background (see SAC at ¶ 29), plaintiff does

28 not refer to or in any way rely on that ruling at all.

1 According to plaintiff, had these deficiencies in the supporting affidavit been corrected,

2 the reviewing state court judge would not have been able to find probable cause to issue the

3 search warrant for plaintiff’s apartment. (Id. at ¶¶ 24, 31.) Finally, plaintiff alleges that

4 “Alvarado [acted] [] intentionally and/or with reckless disregard for the truth because [he] was

5 aware of what the witnesses actually said,” given that “at the time he drafted his search warrant

6 affidavit, Alvarado had [CPD’s] reports [of the witnesses’ statements],” “he was present for the []

7 interviews of both CV1 and CV2 and took his own notes of what was said during those

8 interviews,” and he “also had recordings of those interviews.” (Id. at ¶ 25.)

9 The court finds that these allegations are sufficient to survive the pending motion to

10 dismiss. Plaintiff has alleged facts—not merely conclusions—to show that defendant Alvarado

11 made deliberately false statements or recklessly disregarded the truth in his search warrant

12 affidavit and that those misrepresentations and omissions were material to the reviewing state

13 court judge’s probable cause determination. Plaintiff’s allegations specify which of the

14 statements in defendant Alvarado’s affidavit were false and why plaintiff believes those

15 statements to be false. Plaintiff also specifies the information that defendant Alvarado omitted

16 from his affidavit and why those omissions were material to the probable cause determination.

17 Assuming the truth of these factual allegations, plaintiff has plausibly alleged that defendant

18 Alvarado either acted deliberately or in reckless disregard for the truth in presenting his affidavit

19 to the issuing state court judge. Plaintiff has therefore alleged sufficient facts upon which to

20 plausibly assert a § 1983 judicial deception claim. See, e.g. Wheeler v. Broggi, No. C19-1410-

21 JCC, 2020 WL 2111249, at *4 (W.D. Wash. May 4, 2020) (allegations of specific misstatements

22 and omissions from a search warrant affidavit that were material to the probable cause

23 determination were sufficient to survive a motion to dismiss); Sigal v. County of Los Angeles, No.

24 2:17-CV-04851-RGK-AGR, 2017 WL 10560532, at * 8 (C.D. Cal. Aug. 28, 2017) (based upon

25 allegations of “specific omissions and misrepresentations” and deliberate misrepresentation of

26 those facts, the plaintiff was found to have stated a cognizable judicial deception claim); Shavers

27 v. Murphy, No. 16-cv-05421-DMR, 2017 WL 2335541, at *2–3 (N.D. Cal. May 30, 2017)

28 (finding the plaintiff stated a cognizable claim judicial deception claim where she alleged that her

1 “right to be free from unlawful searches and seizures was violated by Murphy when he signed an

2 arrest warrant, knowing the DA’s office declined to press charges against Plaintiff, which resulted

3 in Plaintiff’s false arrest”); cf. Keates v. Koile, 883 F.3d 1228, 1241 (9th Cir. 2018) (finding that a

4 complaint did not plausibly allege a judicial deception claim because “a single factual allegation

5 supporting this claim” because it did not “provide a basis for concluding that . . . inclusion of

6 th[at] statement . . . was a deliberate falsehood”); Riveira v. Dresch, No. 2:18-cv-01211-JCC,

7 2019 WL 3238569, at *5 (W.D. Wash. July 18, 2019) (“Even if Defendant’s affidavit contained

8 inaccuracies . . . Plaintiffs have not raised factual allegations that plausibly establish that

9 Defendant knowingly or recklessly made false statements[.]”) (internal citation omitted).

10 Accordingly, the court will deny defendant Alvarado’s motion to dismiss plaintiff’s

11 judicial deception claim.

12 B. The SAC Does Not Plausibly Allege a Brady Claim Against Defendant Alvarado

13 Next, defendant Alvarado contends in very general fashion that the SAC fails to allege a

14 cognizable Brady claim against him. (Doc. No. 27-1 at 18-20.) In his opposition, plaintiff argues

15 that although all charges brought against him in both the state and federal courts were ultimately

16 dismissed, he nonetheless suffered substantial harm as a result of the alleged Brady violation,

17 based upon defendant Alvarado’s alleged failure to timely disclose what the witnesses actually

18 said in their interviews (as opposed to what he falsely reported they said in his search warrant

19 affidavit) by being incarcerated as a pretrial detainee for over a decade before the true facts were

20 revealed. (Doc. No. 28 at 14-16.) At the hearing on the pending motion, the court raised with

21 the parties the question of whether, as a matter of law, one who ultimately was not convicted of a

22 crime could present a cognizable claim under § 1983 based upon a Brady violation that allegedly

23 took place during the course of the prosecution and permitted the parties to file supplemental

24 briefing addressing that issue. In his supplemental brief, plaintiff argues that the decision in

25 Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014), stands for the proposition that no underlying

26 criminal conviction is required “to bring a § 1983 Brady-type claim.” (Doc. No. 31 at 5.) In their

27 supplemental brief defendants argue that no Brady claim was at issue in Tatum and that the Ninth

28 Circuit in an unpublished opinion has joined the other circuit courts to address the issue and

1 concluded that no § 1983 claim for violation of Brady can be stated absent a related criminal

2 conviction. (Doc. No. 33 at 2-3.)

3 In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of

4 evidence favorable to an accused upon request violates due process where the evidence is

5 material either to guilt or to punishment, irrespective of the good faith or bad faith of the

6 prosecution.” 373 U.S. 83, 87 (1963). “There are three components of a true Brady violation:

7 The evidence at issue must be favorable to the accused, either because it is exculpatory, or

8 because it is impeaching; that evidence must have been suppressed by the State, either willfully or

9 inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82

10 (1999); see also Comstock v. Humphries, 786 F.3d 701, 708 (9th Cir. 2015). “Evidence is

11 material if there is a reasonable probability that, had the evidence been disclosed to the defense,

12 the result of the proceeding would have been different.” Strickler, 527 U.S. at 280 (internal

13 quotation marks and citation omitted). “[A] § 1983 plaintiff must show that police officers acted

14 with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in

15 withholding evidence from prosecutors.” Tennison v. City & Cty. of San Francisco, 570 F.3d

16 1078, 1088 (9th Cir. 2009); see also Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018).

17 Every circuit court to have addressed this issue has concluded that a criminal conviction

18 stemming from a Brady violation is a prerequisite for the stating of a cognizable § 1983 claim

19 based upon that violation. Becker v. Kroll, 494 F.3d 904, 924 (10th Cir. 2007) (“Becker never

20 proceeded to trial, and she cannot therefore rest her § 1983 claims on a Brady violation.”); Jean v.

21 Collins, 221 F.3d 656, 663 (4th Cir. 2000) (“A Brady violation that resulted in the overturning of

22 the § 1983 plaintiff’s conviction is a necessary . . . condition for § 1983 liability on the part of the

23 police. It is a necessary condition because the Brady violation establishes the requisite threshold

24 of constitutional injury (a conviction resulting in loss of liberty) below which no § 1983 action

25 can lie.”); Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (rejecting § 1983 claim based

26 on alleged Brady violation because “[r]egardless of any misconduct by government agents before

27 or during trial, a defendant who is acquitted cannot be said to have been deprived of the right to a

28 fair trial”); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) (“Plaintiff . . . was never

1 convicted and, therefore, did not suffer the effects of an unfair trial. As such, the facts of this case

2 do not implicate the protections of Brady.”); McKune v. City of Grand Rapids, 842 F.2d 903, 907

3 (6th Cir. 1988) (rejecting § 1983 Brady claim “[b]ecause the underlying criminal proceeding

4 terminated in appellant’s favor, [so] he has not been injured by the act of wrongful suppression of

5 exculpatory evidence”).

6 The Ninth Circuit has not addressed in a published opinion4 the issue of whether a

7 plaintiff can maintain a § 1983 claim based on alleged Brady violations where there is no

8 underlying conviction.5 Nonetheless, several district courts within the Ninth Circuit have found

9 that such a claim is not cognizable absent a criminal conviction. See, e.g., Deeter-Larsen v.

10 Whatcom Humane Soc’y, No. 2:18-cv-00300-RAJ, 2019 WL 2524939, at *6 (W.D. Wash. June

11 19, 2019) (“[T]here were no convictions, and a Brady violation cannot occur where there is no

12 conviction.”); McLaine v. Clark Cty., Nevada, No. 2:14-cv-00288-JAD-GWF, 2017 WL

13 3974995, at *3 (D. Nev. Sept. 8, 2017) (acknowledging that the Ninth Circuit has not addressed

14 the issue, and dismissing the plaintiff’s § 1983 Brady claim because in order to maintain such a

15 claim “there has to be a conviction”);Wagner v. Finneran, No. 5:07-cv-01557-AG-RNB, 2008

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4 As defendants point out, the Ninth Circuit has held in an unpublished opinion that a § 1983

17 claim does not lie absent a criminal conviction connected thereto. See Puccetti v. Spencer, 476

Fed. Appx. 658 (9th Cir. 2011); But see Smith v. Almada, 640 F.3d 931, 946 and n.1 (9th Cir.

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2011) (Nelson, J. dissenting) (noting that the majority found it unnecessary to rule on the issue in

19 that case leaving the issue unresolved in the Ninth Circuit).

20 5 Plaintiff’s reliance on the court’s decision in Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014) is

misplaced. In that case, the Ninth Circuit held that “[w]here . . . investigating officers, acting

21 with deliberate indifference or reckless disregard for a suspect’s right to freedom from unjustified

loss of liberty, fail to disclose potentially dispositive exculpatory evidence to the prosecutors,

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leading to the lengthy detention of an innocent man, they violate the due process guarantees of the

23 Fourteenth Amendment.” 768 F.3d at 816. No Brady claim brought under § 1983 was before the

court in Tatum. Rather, there the court only acknowledged “a due process claim for unjustified

24 loss of liberty due to the investigative officers’ failure to disclose potentially dispositive

exculpatory evidence to the prosecutors during a suspect’s pretrial detention.” Merritt v. Arizona,

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No. CV-17-04540-PHX-DGC, 2019 WL 6050237, at *21 (D. Ariz. Nov. 15, 2019). “Tatum did

26 not decide whether Brady extends to a situation where the suspect never goes to trial.” Id.

Accordingly, while Tatum does not provide an avenue for plaintiff to assert a Brady claim, it does

27 recognize a due process claim brought under the Fourteenth Amendment based on loss of liberty

due to investigative officers’ failure to disclose exculpatory evidence. Plaintiff will therefore be

28 granted leave to amend assert such a claim, as opposed to a Brady claim, if he so desires.

1 WL 2156723, at *4 (C.D. Cal. May 22, 2008) (Recognizing that the Ninth Circuit has not

2 addressed the issue but concluding that “[w]ith respect to § 1983 liability on the part of law

3 enforcement officers for alleged Brady violations, it is well established that, in order to state a

4 claim, a wrongful conviction must have followed the alleged Brady violation.”).

5 The undersigned finds the rationale employed by these circuit and district courts to be

6 persuasive, particularly because it is in line with the Supreme Court’s reasoning that “there is

7 never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable

8 probability that the suppressed evidence would have produced a different verdict.” Strickler, 527

9 U.S. at 281. Accordingly, because plaintiff was never convicted of the crimes with which he was

10 charged in either state or federal court, the undersigned concludes that he cannot maintain a

11 § 1983 claim based on an alleged Brady violation. Therefore, defendant Alvarado’s motion to

12 dismiss plaintiff’s Brady violation claim will be dismissed without leave to amend as to that

13 specific claim. See Wagner, 2008 WL 2156723, at *4 (holding that the plaintiff, who was never

14 convicted of a crime, could not maintain a § 1983 Brady claim, “[n]or c[ould] this deficiency be

15 cured by amendment”).

16 C. The SAC Does Not Plausibly Allege a Municipal Liability Claim Against the City

17 The City argues that plaintiff’s municipal liability claims brought against it on a theory of

18 Monell liability, should be dismissed because plaintiff has not adequately alleged facts in his

19 complaint establishing an actionable policy, custom, or practice. (Doc. No. 27-1 at 20–27); see

20 also Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

21 It is well-established that “a municipality cannot be held liable solely because it employs a

22 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat

23 superior theory.” Crowe v. County of San Diego, 608 F.3d 406, 445 (9th Cir. 2010) (quoting

24 Monell, 436 U.S. at 692); see also Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). To

25 state a Monell claim against the County, plaintiff “must demonstrate that an ‘official policy,

26 custom, or pattern’ on the part of [the County] was ‘the actionable cause of the claimed injury.’”

27 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City of Los

28 Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)); see also Mendiola-Martinez v. Arpaio, 836 F.3d

1 1239, 1247 (9th Cir. 2016) (to establish municipal liability under § 1983 a plaintiff must show a

2 direct causal link between the municipal policy or custom and the alleged constitutional

3 violation). A Monell claim can be established in one of three ways. See Thomas v. County of

4 Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). First, a local government may be held liable

5 when it acts “pursuant to an expressly adopted policy.” Id. (citing Monell, 436 U.S. at 694); Lytle

6 v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Second, a public entity may be held liable for a

7 “longstanding practice or custom.” Thomas, 763 F.3d at 1170. Such circumstances may arise

8 when, for instance, the public entity “fail[s] to implement procedural safeguards to prevent

9 constitutional violations” or when it fails to adequately train its employees. Tsao, 698 F.3d at

10 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)); see also Connick v.

11 Thompson, 563 U.S. 51, 61 (2011) (“A municipality’s culpability for a deprivation of rights is at

12 its most tenuous where a claim turns on a failure to train.”); Flores v. County of Los Angeles, 758

13 F.3d 1154, 1159 (9th Cir. 2014) (requiring a plaintiff asserting a claim based on a failure to train

14 to allege facts showing that defendants “disregarded the known or obvious consequence that a

15 particular omission in their training program would cause municipal employees to violate

16 citizens’ constitutional rights”) (internal brackets omitted) (quoting Connick, 563 U.S. at 61).

17 “Third, a local government may be held liable under § 1983 when ‘the individual who committed

18 the constitutional tort was an official with final policy-making authority’ or such an official

19 ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” Clouthier v.

20 County of Santa Clara, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore, 979

21 F.2d 1342, 1346–47 (9th Cir. 1992)), overruled on other grounds by Castro v. County of Los

22 Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc).

23 Here, in his SAC, plaintiff asserts claims for municipal liability based on the City:

24 (1) instituting policies that “allowed constitutional violations”; (2) failing to adequately train its

25 officers on what information to include in a search warrant application; and (3) ratifying the

26 misconduct of defendant Alvarado. (SAC at ¶ 55.) Plaintiff alleges that the City’s policies

27 include the “deliberately indifferent training and supervision of its law enforcement officers in

28 preparing search warrant affidavits and carrying out the same . . .[,] includ[ing] the express and/or

1 tacit encouragement of preparing and executing search warrants that lack probable cause, the

2 ratification of police misconduct[,] and the failure to conduct adequate investigations of police

3 misconduct.” (SAC at ¶ 35.) Plaintiff alleges that the “City fails to adequately train and

4 supervise police officers in the investigation of crimes and the appropriate laws and procedures

5 related to preparing search warrants,” and that the City trained its officers to include boilerplate

6 language “that w[as] simply cut and pasted into the search warrant affidavits regardless of

7 whether the officer has developed any evidence warranting such language in the affidavit.” (Id. at

8 ¶ 36.) The SAC also alleges that the City and defendant Basgall “ratified, condoned, and tacitly

9 approved of Alvarado[’s] . . . conduct in that Alvarado was not reprimanded or punished for his

10 misconduct . . . [and was instead] rewarded with a promotion.” (Id. at ¶ 37.) Plaintiff contends

11 that his case “does not represent an isolated occurrence” and points the court to the search warrant

12 at issue in a different case involving CPD and the City, Garber v. City of Clovis, 1:09-cv-00242-

13 AWI-DLB (E.D. Cal.) According to plaintiff, in Garber, CPD executed a search warrant in

14 February of 2007—a few months before the search warrant at issue in this case was executed—

15 that also authorized the seizure of computers from the suspect’s property on the basis that child

16 pornography would be found there, without the officer-affiant ever having stated that any of the

17 images she viewed during the course of her investigation were of minors engaged in sexually

18 explicit conduct. (SAC at ¶ 38.) Based on the allegations made by the plaintiffs in Garber,

19 plaintiff argues that the City “was on actual or constructive notice” that CPD’s training program

20 was deficient with respect to the policies and procedures for applying for search warrants. (Id. at

21 ¶ 39.)

22 The court finds that the allegations of the SAC, however, do not sufficiently allege a claim

23 for municipal liability against the City. First, as the City correctly point out, plaintiff’s reliance

24 on Garber is misplaced because the complaint in that action was not filed until February 6,

25 2009—well after the events giving rise to this action. (Doc. No. 27-1 at 23; see also Doc. No. 27-

26 /////

27 /////

28 /////

1 26 at Ex. 1).) Second, even if the complaint in Garber was relevant to this case, “[a] single

2 constitutional deprivation ordinarily is insufficient to establish a longstanding practice or

3 custom.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). “Liability for improper custom

4 may not be predicated on isolated or sporadic incidents; it must be founded upon practices of

5 sufficient duration, frequency and consistency that the conduct has become a traditional method

6 of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), modified on other

7 grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). Third, with plaintiff’s reliance on

8 Garber misplaced, the remaining allegations of the SAC in support of the Monell claim are

9 conclusory and without any detailed factual support. For instance, plaintiff’s claim that the “City

10 fails to adequately train and supervise police officers in the investigation of crimes and the

11 appropriate laws and procedures related to preparing search warrants” is not supported by any

12 factual allegations. The rest of plaintiff’s allegations are similarly deficient. The Ninth Circuit

13 has made clear that Monell claims “may not simply recite the elements of a cause of action, but

14 must contain sufficient allegations of underlying facts to give fair notice and to enable the

15 opposing party to defend itself effectively.” AE ex rel. Hernandez v. County of Tulare, 666 F.3d

16 631, 637 (9th Cir. 2012). Here, the SAC fails to plausibly allege a municipal liability claim

17 against the City as it contains no factual allegations to plausibly suggest a policy, custom, or

18 practice. As one district court has observed, a complaint alleging a Monell claim must “pair

19

6 Defendants request that the court take judicial notice of the docket in the Garber case, the

20 stipulated dismissal and order from that action, and plaintiff’s detention order from his federal

criminal case before this court. (See Doc. No. 27-2 at Exs. 1–3.) Ordinarily, the court considers

21 only the complaint and attached documents in deciding a motion to dismiss; however, the court

may also take judicial notice of matters of public record without converting the motion into a

22

motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

23 Pursuant to the Federal Rule of Evidence 201(b), a court may “judicially notice a fact that is not

subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial

24 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b). Public records are properly the subject of

25

judicial notice because the contents of such documents contain facts that are not subject to

26 reasonable dispute, and the facts therein “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Id.; see also Intri-Plex Techs. v. Crest Grp.,

27 Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). Defendants request that judicial notice be taken of

exhibits, all of which are of public record. Defendants’ request for judicial notice is therefore

28 granted.

1 general averments of a policy or custom with particular examples.” Ulloa v. Prince George’s

2 County, No. 8:15-cv-00257-DKC, 2015 WL 7878956, at *6 (D. Md. Dec. 4, 2015).

3 Accordingly, the court will grant the City’s motion to dismiss plaintiff’s municipal

4 liability claims but will also grant plaintiff leave to amend.7

5 D. The SAC Does Not Plausibly Allege a Supervisory Liability Claim Against

6 Defendant Basgall

7 Defendant Basgall moves to dismiss plaintiff’s fourth cause of action, seeking to hold him

8 liable for defendant Alvarado’s alleged misconduct on a theory of supervisory liability based on

9 his position as Chief of Police. (Doc. No. 27-1 at 7–8.)

10 “An official may be liable as a supervisor only if either (1) he or she was personally

11 involved in the constitutional deprivation, or (2) a sufficient causal connection exists between the

12 supervisor’s wrongful conduct and the constitutional violation.” Felarca v. Birgeneau, 891 F.3d

13 809, 819–20 (9th Cir. 2018) (internal quotation marks omitted); see also Larez v. City of Los

14 Angeles, 946 F.2d 630, 645 (9th Cir. 1991) (noting that whether a supervisor in his individual

15 capacity is liable for a failure to supervise “hinges upon his participation in the deprivation of

16 constitutional rights”). “A supervisor can be liable in his individual capacity for his own culpable

17 action or inaction in the training, supervision, or control of his subordinates; for his acquiescence

18 in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to

19 the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (internal quotation

20 marks omitted). If a subordinate has committed a constitutional violation, the liability of a

21 supervisor “depends upon whether he set in motion a series of acts by others, or knowingly

22 refused to terminate a series of acts by others, which he knew or reasonably should have known,

23

7 In opposition to the pending motion, plaintiff argued that at the 2017 Franks evidentiary

24 hearing in his federal criminal case, defendant Alvarado testified that he was trained to prepare

search warrants in the manner that he did in this case. (Doc. No. 28 at 20.) Had it been included

25

in the SAC, this allegation would lend support for a claim against the City. This allegation,

26 however, was advanced by plaintiff for the first time in his opposition to the pending motion, and

“[a] court may not . . . look beyond the complaint and consider new facts alleged in a plaintiff's

27 opposition to a defendant’s motion to dismiss.” Monzon v. S. Wine & Spirits of California, 834 F.

Supp. 2d 934, 941 (N.D. Cal. 2011); see also Broam v. Bogan, 320 F.3d 1023, 1026 (9th

28 Cir.2003) (citing Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.1998)).

1 would cause others to inflict the constitutional injury.” Blankenhorn v. City of Orange, 485 F.3d

2 463, 485 (9th Cir. 2007) (internal quotation marks omitted).

3 Here, plaintiff’s SAC sets forth no factual allegations that, if proven, would demonstrate

4 that defendant Basgall took any action with respect to the alleged deprivations of plaintiff’s

5 constitutional rights. The allegations supporting this claim are not based on defendant Basgall’s

6 conduct but are instead premised solely on his role as a supervisor. Specifically, plaintiff alleges

7 that, in April or May of 2014, he informed Basgall of the falsities in defendant Alvarado’s search

8 warrant affidavit. (SAC at ¶ 30.) On May 27, 2014, defendant Basgall acknowledged receipt of

9 plaintiff’s communication “and informed him that the matter was assigned to a supervisor for

10 investigation and that Plaintiff would be notified of the results of the investigation when

11 completed.” (Id.) Plaintiff contends that defendant Basgall therefore “knew or should have

12 known of Alvarado’s misconduct, [such as] including false statement in his search warrant

13 affidavit and omitting exculpatory information from the affidavit based on [p]laintiff’s letter to

14 Basgall in 2014.” (SAC at ¶ 23.)

15 However, allegations that a supervisor “knew or should have known” of misconduct are

16 conclusory, and therefore not entitled to the presumption of truth. See Sullivan v. Biter, No. 1:15-

17 cv-00243-DAD-SAB, 2017 WL 1540256, at *1 (E.D. Cal. Apr. 28, 2017); see also Lacey v.

18 Maricopa Cty., 693 F.3d 896, 916 (9th Cir. 2012) (“For an official to be liable for another actor’s

19 depriving a third party of his constitutional rights, that official must have at least the same level of

20 intent as would be required if [he] were directly to deprive the third party of his constitutional

21 rights.”) Left unsaid in the SAC is what defendant Basgall actually did (or failed to do) that

22 resulted in harm to plaintiff. Plaintiff alleges that “Basgall had a duty to investigate Plaintiff’s

23 allegations regarding Alvarado’s conduct” because plaintiff sent Basgall a letter in 2014 detailing

24 Alvarado’s conduct in connection with plaintiff’s his criminal cases. (SAC at ¶ 62.) Plaintiff

25 alleges that, despite Basgall acknowledging receipt of his correspondence and informing plaintiff

26 that an investigation would be carried out, “no [investigation] results have ever been

27 communicated to Plaintiff.” (Id.) These allegations, however, do not plausibly allege that

28 Basgall was personally involved in depriving plaintiff of his constitutional rights, nor do they

1 establish a sufficient causal connection between Basgall’s conduct and the alleged violations of

2 plaintiff’s rights. Moreover, plaintiff alleges that his rights were violated in 2007, when

3 defendant Alvarado allegedly deceived the state court judge who reviewed the supporting

4 affidavit and thereby obtained a search warrant unsupported by probable cause. Plaintiff’s letter

5 to defendant Basgall, however, was not sent until 2014, years after the issuance and execution of

6 the search warrant for plaintiff’s apartment. Thus, the SAC does not plausibly allege a cognizable

7 supervisory liability claim against defendant Basgall based on his receipt of plaintiff’s 2014

8 communication.

9 Accordingly, plaintiff’s claim against defendant Basgall based on a theory of supervisory

10 liability will also be dismissed with leave to amend.

11 E. Qualified Immunity Does Not Apply8

12 “The doctrine of qualified immunity shields officials from civil liability so long as their

13 conduct does not violate clearly established statutory or constitutional rights of which a

14 reasonable person would have known.” Mullenix v. Luna, ___ U.S. ___, 136 S. Ct. 305, 308

15 (2015) (internal quotation marks omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 231

16 (2009) and Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a

17 qualified immunity defense, it must determine whether: (1) the facts alleged, taken in the light

18 most favorable to the plaintiff, demonstrate that the defendant’s conduct violated a statutory or

19 constitutional right; and (2) the right at issue was “clearly established.” Saucier v. Katz, 533 U.S.

20 194, 201 (2001); accord Pearson v. Callahan, 555 U.S. 223, 236–42 (2009) (holding that courts

21 need not analyze the two prongs of the analysis announced in Saucier in any particular order).

22 “A Government official’s conduct violates clearly established law when, at the time of the

23 challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable

24

8 Defendants’ motion to dismiss contains a single paragraph under the heading “QUALIFIED

25

IMMUNITY.” (See Doc. No. 27-1 at 20.) That paragraph, however, merely provides a brief

26 description of qualified immunity, but did not explain how that doctrine applies here or supported

dismissal of this action. Plaintiff pointed out this deficiency in his opposition. Thereafter,

27 defendants argued in their reply that defendant Alvarado was entitled to qualified immunity and.

presumably, dismissal of the FAC on that ground. (See Doc. No. 29 at 10–11.) The court will

28 consider this argument even though it was not properly advanced in the motion to dismiss.

1 official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd,

2 563 U.S. 731, 741 (2011) (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635,

3 640 (1987)). This inquiry must be undertaken in light of the specific context of the particular

4 case, rather than as a broad general proposition. Mullenix, 136 S. Ct. at 308.

5 The Franks standard, although developed in the criminal context,

“also defines the scope of qualified immunity in civil rights actions.”

6 Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991); see also

Forster v. County of Santa Barbara, 896 F.2d 1146, 1148 n. 3 (9th

7 Cir. 1990). Thus, “[i]f an officer submitted an affidavit that

contained statements he knew to be false or would have known were

8 false had he not recklessly disregarded the truth and no accurate

information sufficient to constitute probable cause attended the false

9 statements, . . . he cannot be said to have acted in an objectively

reasonable manner,” and the shield of qualified immunity is lost.

10 Olson v. Tyler, 771 F.2d 277, 281 (7th Cir.1985) . . ..

11 Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991), overruled on other grounds by Galbraith

12 v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Liston v. County of Riverside, 120 F.3d

13 965, 972 (9th Cir. 1997) (“Franks standard, although developed in a criminal context, also

14 defines the scope of qualified immunity in civil rights actions.”); Hervey v. Estes, 65 F.3d 784,

15 788 (9th Cir. 1995); Al-Kidd v. Gonzales, No. 1:05-cv-00093-EJL-MHW, 2012 WL 4470776, at

16 *6 (D. Idaho Sept. 27, 2012) (“[O]nce it is determined that a Franks violation occurred, qualified

17 immunity does not apply.”). Indeed, defendants agree that “the[] qualified immunity principles

18 mirror the principles that govern a Fourth Amendment Franks . . . claim.” (Doc. No. 29 at 11.)

19 Here, the court has already found that the SAC plausibly alleges a § 1983 claim for

20 judicial deception. Accordingly, defendants’ motion to dismiss plaintiff’s judicial deception

21 claim based on the application of qualified immunity will be denied.

22 F. Defendants’ Remaining Arguments

23 Defendants raise a few additional arguments in the pending motion. First, they argue that

24 plaintiff cannot allege a malicious prosecution claim (Doc. No. 27-1 at 16), but as plaintiff points

25 out in his opposition, he is not asserting a claim for malicious prosecution (Doc. No. 28 at 12–13).

26 Accordingly, defendant’s motion to dismiss plaintiff’s malicious prosecution claim is denied as

27 moot. Next, defendants contend that plaintiff cannot assert a cause of action under the Fifth

28 Amendment of the U.S. Constitution because he has not asserted a claim against any federal

1 actor. (Doc. No. 27-1 at 17–18.) Plaintiff agrees and confirms that he is not asserting any claims

2 against a federal actor under the Fifth Amendment. (Doc. No. 28 at 13.) Accordingly,

3 defendants’ motion to dismiss plaintiff’s Fifth Amendment claims is granted without leave to

4 amend.9

5 CONCLUSION

6 For the reasons set forth above,

7 1. Defendants’ motion to dismiss (Doc. No. 27) is granted in part and denied in part

8 as follows:

9 a. Plaintiff’s Brady violation claim against defendant Alvarado is dismissed

10 without leave to amend;

11 i. Plaintiff, however, is granted leave to amend to assert a Fourteenth

12 Amendment due process claim pursuant to the Ninth Circuit’s

13 decision in Tatum, as discussed in footnote 5 above;

14 b. Plaintiff’s municipal liability claim against the City is dismissed with leave

15 to amend;

16 c. Plaintiff’s supervisorial liability claims against defendant Basgall are

17 dismissed with leave to amend;

18 d. Plaintiff’s Fifth Amendment due process claims are dismissed without

19 leave to amend.

20 e. Defendants’ motion to dismiss is denied in all other respects; and

21 /////

22 /////

23 /////

24 /////

25 9 While plaintiff agrees that he cannot assert a Fifth Amendment due process claim against any of

26 the defendants in this action, he “does not . . . waive his right to assert 5th Amendment due

process violations should federal actors later become Defendants.” (Doc. No. 28 at 13.) The

27 court makes no determination as to plaintiff’s reservation of rights but notes that, at this juncture,

dismissal of plaintiff’s Fifth Amendment claim without leave to amend is warranted given the

28 lack of any federal defendants being named in this action.

£000 VE VEVEM MALE MAINE RMVVUEIOCTIL OO FOO VA tre OY OU VI CY

1 2. Any amended complaint plaintiff may elect to file shall be filed within twenty-one

2 (21) days from service of this order.

3

4 IT IS SO ORDERED. ~ ie

5 Dated: _ May 13, 2020 wee Tm oe

‘ UNITED STATES DISTRICT JUDGE

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