The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 RICHARD J. GLAIR, ) NO. CV 13-8946-DDP (AGR)
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12 Plaintiff, )
) ORDER ACCEPTING FINDINGS AND
13 v. ) RECOMMENDATIONS OF UNITED
) STATES MAGISTRATE JUDGE AS TO
14 CITY OF LOS ANGELES, et al. ) (1) REPORT DATED DECEMBER 4,
) 2019; AND (2) REPORT DATED MAY
15 Defendants. ) 31, 2019
)
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17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on
18 file, the Report and Recommendation of the United States Magistrate Judge dated
19 December 4, 2019 (“Report”) and the Objections. Further, the Court has engaged in
20 de novo review of those portions of the Report to which Plaintiff has objected.
21 I. DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
22 (Dkt. Nos. 193-194)
23 The Court accepts the Report’s findings and recommendations.
24 Defendants moved for partial summary judgment only on Federal Claims 6, 9
25 and 10.
26 A. Claim 6 (Failure to Train)
27 Plaintiff contends that the City and Defendant Incontro failed to train officers (1)
28 regarding what constitutes a valid consent to a search and (2) that the pointing of
1 partial summary judgment be granted as to the consent portion and denied as to the
2 gun portion.
3 The Report addressed the issue of training (a) when the officers came up the
4 driveway to Plaintiff’s front door and (b) when the officers entered Plaintiff’s back yard
5 and house. With respect to (a), Defendants submitted into evidence the LAPD
6 training regarding the legal principles governing warrantless entry into a driveway and
7 front yard. The Report found that Plaintiff failed to identify any deficiency in the
8 training. (Report at 9.)
9 Plaintiff’s objections again do not identify any deficiency in the training
10 materials. Plaintiff merely argues that the failure to train is “obvious” under Florida v.
11 Jardines, 569 U.S. 1 (2013). (Obj. at 7.) The Supreme Court stated, in Jardines,
12 that “‘the knocker on the front door is treated as an invitation or license to attempt an
13 entry.’” Id. at 8 (citation omitted). “This implicit license typically permits the visitor to
14 approach the home by the front path, knock promptly, wait briefly to be received, and
15 then (absent invitation to linger longer) leave.” Id. “Thus, a police officer not armed
16 with a warrant may approach a home and knock, precisely because that is ‘no more
17 than any private citizen might do.’” Id. (citation omitted). Thus, contrary to Plaintiff’s
18 interpretation of Jardines (Obj. at 7), defense counsel’s contention at oral argument
19 that the officers had implied consent to walk to the front door and knock is completely
20 consistent with Jardines. The Court did not indicate that training on this point was
21 necessary. “Complying with the terms of that traditional invitation does not require
22 fine-grained legal knowledge; it is generally managed without incident by the Nation’s
23 Girl Scouts and trick-or-treaters.” Id. (footnote omitted).1
24 With respect to the officers’ subsequent entry into the backyard and home, the
25 Report noted a dispute of fact as to whether Plaintiff consented. Plaintiff stated that
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1 The Supreme Court held, in Jardines, that police use of a drug-sniffing dog on the
27 front porch to investigate the contents of the home (marijuana) constituted a search
under the Fourth Amendment. 569 U.S. at 11-12. That holding is not implicated in this
28 case.
1 officers never asked for consent and he did not give consent. (Report at 10 (citing
2 Third Am. Compl. ¶¶ 32, 36; Glair Decl. ¶ 17(1)).) Assuming Plaintiff’s version is
3 believed, the Report found that Plaintiff had not created a genuine issue of material
4 fact as to the requisite causal connection between a failure to train and the alleged
5 Fourth Amendment violation. No specific training about what constitutes consent
6 was necessary for the officers to know that Plaintiff had not consented if, as Plaintiff
7 contends, officers did not ask for consent and he did not give it.2 (Report at 10-11
8 (citing Flores v. Cnty. of Los Angeles, 758 F.3d at 1154, 1155, 1159-60 (9th Cir.
9 2014)).)
10 In his objections, Plaintiff cites United States v. Shaibu, 920 F.2d 1423 (9th Cir.
11 1990), but that case reinforces the Report’s observation that Plaintiff’s version of the
12 facts, if believed, would preclude consent. In Shaibu, there was “no contention that
13 the police expressly or impliedly asked consent to enter” or that Shaibu expressly
14 consented. Shaibu “opened the door not to let the police enter, but only for himself to
15 step out of the apartment to meet visitors outside rather than inside.” “To infer
16 consent in this case is only a conjecture and would exceed the scope of any
17 recognized exception to the Fourth Amendment’s bar to warrantless entry of the
18 home.” Id. at 1427. “That the police would so enter, without request, creates an
19 impression of authority to do so.” “[W]e interpret failure to object to the police
20 officer’s thrusting himself into Shaibu’s apartment as more likely suggesting
21 submission to authority than implied or voluntary consent.” The prosecution cannot
22 show consent merely from a criminal defendant’s failure to object to the entry. Id.
23 Nothing in Shaibu alters the Report’s conclusion that Plaintiff has not created a
24 genuine issue of material fact as to the requisite causal connection between a failure
25 to train and the Fourth Amendment violation he alleges.
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2 By contrast, Defendants claim they asked for his consent and Plaintiff gave his
28 consent. (Pultz Depo. at 24:3-11, 19-25, 25:1-2, 6-7, 14-20, 24-25, 26:1-5.)
1 B. Claim 9 (Supervisory Liability)
2 As the Report noted, Plaintiff alleges that Defendants Incontro (Commander of
3 the Metropolitan Division), McCarty (detective in Force Investigation Division), Doe 5
4 (Lt. Heard, SWAT Division supervisor) and Doe 6 (H. Miller, K9 Division supervisor)
5 were on the scene for three hours, knew that officers were going house to house in
6 pursuit of the suspect, and failed to obtain a warrant or notify officers that “exigent
7 circumstances no longer existed so, absent consent, [a] warrant had to be obtained.”
8 (Report at 13 (quoting Third Am. Compl. ¶ 103; see also Id. ¶ 17).)
9 The Report recommends summary judgment on Claim 9 because Plaintiff has
10 not created a genuine issue of fact as to the Defendants’ supervisory liability. The
11 parties agree in this case that exigent circumstances did not exist and that a warrant
12 was necessary absent Plaintiff’s consent. (Report at 13-14; Pultz Depo. at 85:15-17,
13 85:18-86:9)3 The genuine dispute of material fact is whether there was consent
14 under the circumstances of this case. Apparently based on his misreading of
15 Jardines, Plaintiff’s objections cite the testimony of Officer Pultz that he was trained,
16 in accordance with the law, that when an armed shooter is at large, there is a risk to
17 the public and a perimeter is established, an officer can go into the curtilage of a
18 home. (Obj. at 9; Pultz Depo. at 104:1-21.) Pultz’s testimony does not create a
19 genuine issue of supervisory liability. An officer without a search warrant may
20 “approach the home by the front path, knock promptly, wait briefly to be received, and
21 then (absent invitation to linger longer) leave.” Jardines, 569 U.S. at 8. Plaintiff
22 argues that the supervisors have effectively said “just do whatever you want, say
23 whatever you want, make up stuff if you want” but he does not cite evidence that
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3 Pultz testified that if Plaintiff had refused consent, they may have locked
26 down the residence and asked for search warrant, and maybe asked Plaintiff
more questions or contact the supervisor on scene. (Pultz Depo. at 85:15-17,
27 85:18-86:9.) The only circunstance under which they would have opened the door
anyway was “some sort of duress coming from inside, screaming, yelling, maybe a shot
28 fired inside.” (Id. at 98:21-25.)
1 would create a genuine issue of material fact. Plaintiff’s remaining objections are
2 without merit and do not change the outcome.
3 C. Claim 10 (Monell Claim)
4 Plaintiff’s objections complain that Defendants have not met their initial burden
5 as the moving party to show the absence of a genuine issue of material fact. The
6 Report found that Defendants satisfied their burden by submitting evidence showing
7 the City trains LAPD officers that they are required to obtain a warrant before
8 entering a home unless they obtain consent or unless there are exigent
9 circumstances. (Report at 15.) Defendants presented evidence, if it is believed, that
10 in this case an officer requested and Plaintiff gave his consent. The Report found no
11 evidence from which the court could infer a policy, custom or practice of entering
12 homes without a warrant or consent or exigent circumstances. (Id. at 16.) The
13 Report further found no evidence of the requisite causal link between any policy,
14 custom or practice and Plaintiff’s alleged constitutional violation. (Id.) In his
15 objections, Plaintiff contends that it is Defendants’ burden to prove that their custom
16 and practice conforms to their training, presumably beyond the facts of this case.
17 Plaintiff cites no authority for his contention. It is his burden to create a genuine issue
18 of fact, which he has not done.
19 D. Qualified Immunity
20 Although Plaintiff objects to the Report’s recommendation, the Report found it
21 unnecessary to address qualified immunity as to any claim dismissed on summary
22 judgment and recommended denial of qualified immunity without prejudice as to the
23 failure to train claim regarding pointing guns at a non-suspect.
24 E. Order
25 IT IS ORDERED that Defendants’ motion for partial summary judgment is
26 GRANTED IN PART AND DENIED IN PART as follows:
27 (1) Defendants’ motion for summary judgment is granted in favor of the City of
28 Los Angeles, Beck, Incontro, McCarty and Does 5 and 6 on Claims 9, 10, and the
1 portion of Claim 6 based on failure to train regarding consent; and
2 (2) Defendants’ motion for summary judgment is denied on the portion of Claim
3 6 based on failure to train regarding pointing guns at non-suspects.
4 II. PLAINTIFF’S MOTION FOR LEAVETO FILE A FOURTH AMENDED
5 COMPLAINT (Dkt. No. 173-176)
6 Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on
7 file, the Report and Recommendation of the United States Magistrate Judge dated
8 May 31, 2019 (“Report”) and the Objections. Further, the Court has engaged in a de
9 novo review of those portions of the Report to which Plaintiff has objected.
10 The Court accepts the Report’s findings and recommendations. The Report
11 recommends that the Court deny Plaintiff’s motion for leave to file the Fourth
12 Amended Complaint, with the proviso that denial of Plaintiff’s motion for leave to
13 substitute Lt. Heard for Doe 5 in Federal Claim 9 would be without prejudice to
14 Plaintiff’s ability to renew the motion if Federal Claim 9 survived Defendants’ motion
15 for partial summary judgment. Because the Court has determined that summary
16 judgment is appropriate for Federal Claim 9, Plaintiff’s motion for leave to file a
17 Fourth Amended Complaint is denied.
18 Plaintiff objects to the Report’s conclusion that the addition of J. Miller and N.
19 Huynh as defendants in Federal Claim 1, Federal Claim 2 and the state law claims
20 would be futile. The Report found that Plaintiff failed to allege any factual basis for
21 liability for J. Miller or N. Huynh, who were K-9 officers. “Officers may not be held
22 liable merely for being present at the scene of a constitutional violation or for being a
23 member of the same operational unit as a wrongdoer.” Felarca v. Birgeneau, 891
24 F.3d 809, 820 (9th Cir. 2018). In his objections, Plaintiff does not point to any factual
25 allegations that J. Miller and N. Huynh did anything, or failed to do anything, that
26 could form the basis of liability under Federal Claim 1, Federal Claim 2 or the state
27 law claims. J. Miller and N. Huynh are not alleged to have participated in the
28 allegedly unconstitutional search of his home and detention conducted by
1 Defendants Pultz and Sandell. J. Miller and N. Huynh are alleged to have been
2 present in the backyard or at the back door.4 (Obj. at 4.) Plaintiff argues any
3 deficiency can be cured by amendment but does not suggest any additional facts that
4 could form the basis for liability for J. Miller and N. Huynh. Plaintiff cites an
5 admission that a dog alerted on the suspect’s clothing found near the rear of his
6 residence. However, Plaintiff does not explain how that admission can be the basis
7 of liability for J. Miller and N. Huynh. Plaintiff has had ample time to discover any
8 such facts. This case has been pending since December 4, 2013, discovery closed
9 on April 29, 2019 and summary judgment proceedings have concluded.
10 Plaintiff also objects to the Report’s conclusion that the addition of H. Miller as
11 a defendant in Federal Claim 95 would be futile because Plaintiff does not allege any
12 factual basis for supervisory liability. Although Plaintiff alleges H. Miller was the
13 supervisor of the K-9 division, Plaintiff does not allege any facts indicating he was the
14 supervisor over a K-9 officer who was somehow liable in the illegal search and
15 detention. See Felarca, 891 F.3d at 821. Although Plaintiff again argues that any
16 deficiency can be cured, Plaintiff’s objections do not suggest any additional facts that
17 would satisfy the legal standards for supervisory liability previously explained to
18 Plaintiff in the Report and Recommendation on Defendants’ motion to dismiss the
19 Third Amended Complaint. (See Report, Dkt. No. 155 at 16.)
20 Plaintiff does not appear to dispute the Report’s observation that the proposed
21 Fourth Amended Complaint contains mistakes and would have to be amended before
22 it could be filed. The Report noted that the proposed Fourth Amended Complaint
23 appeared to add a federal cause of action that was inchoate and stopped in mid-
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4 Plaintiff does not object to the Report’s recommendation that the Court deny
26 Plaintiff’s attempt to add a sixth state law claim for civil trespass. (Obj. at 6.)
27 5 Plaintiff’s objections refer to Federal Claim 4 in his proposed Fourth Amended
Complaint, which correlates to Federal Claim 9 in the operative Third Amended
28 Complaint.
1 || sentence: Defendants McCarty, Incontro, Heard, H. Miller and the City of Los
2 || Angeles “failed to train their employees as to when to obtain search.” (Dkt. No. 173-1
3 |) at 12:28.) Plaintiff contends this deficiency can be cured by adding the word
4 || “warrants.” Even so, Plaintiff concedes that this claim “has been in every complaint
5 || and defendants have a summary judgment motion pending on it.” (Obj. at 6.) The
6 || proposed Fourth Amended Complaint would therefore be unnecessary for this claim.
7 The proposed Fourth Amended Complaint is also unnecessary to add Incontro
8 | as a defendant. The operative Third Amended Complaint names Incontro as a
9 || defendant in Federal Claim 9. The Report observed that the proposed Fourth
10 || Amended Complaint deleted Incontro as a defendant in Federal Claim 9, but Plaintiff
11 || later filed a notice of corrections that stated Incontro should be added as a defendant
12 || without specifying a cause of action. (Report at 7.)
13 Plaintiffs objections add to the confusion by stating that the notice of
14 || corrections to the proposed Fourth Amended Complaint should itself be corrected.
15 || Plaintiff argues that Lopez should now be added as a defendant. (Obj. at 7.) Lopez
16 || was previously dismissed from this case. (Order, Dkt. No. 158.) Plaintiff contends
17 || that Lopez and others should be defendants in a claim based on failure to train
18 || officers that pointing a weapon at a nonsuspect is per se use of excessive force.
19 || However, that failure to train claim is in the operative Third Amended Complaint and
20 || not in the proposed Fourth Amended Complaint.
21 IT IS ORDERED that Plaintiff's motion for leave to file the Fourth Amended
22 || Complaint is DENIED and Plaintiffs motion for leave to substitute Lt. Heard for Doe 5
23 || in Federal Claim 9 is DENIED.
24 po
25 || DATED: August 9, 2021
26 United States District Judge
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