Opinion

Stroud v. Gore

Court
District Court, S.D. California
Filed
Jun 16, 2022
Cited by
0 cases
Authority
More cited than 19.2%

The opinion

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 WILLARD RICHARD STROUD, JR., Case No.: 18-CV-515 JLS (MDD)

11 Plaintiff,

ORDER DENYING DEFENDANTS’

12 v. MOTION FOR RECONSIDERATION

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(ECF No. 108)

14 SHERIFF WILLIAM D. GORE, et al.,

15 Defendants.

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18 Presently before the Court is Defendants Sergeant Paul Michalke, Detective

19 Benjamin Shea, and Sergeant Jesus Lizarraga’s (collectively, the “Deputy Defendants”)

20 Motion for Reconsideration (“Mot.,” ECF No. 108). Plaintiff Willard Stroud, appearing

21 pro se, did not file an opposition to the instant Motion. The Court vacated the hearing and

22 took the Motion under submission without oral argument pursuant to Civil Local Rule

23 7.1(d)(1). See ECF No. 108. Having considered the Parties’ arguments and the law, the

24 Court DENIES the Deputy Defendants’ Motion.

25 BACKGROUND

26 The Parties and this Court are intimately familiar with the facts of this long-enduring

27 matter, and accordingly the Court incorporates by reference the factual background as

28 / / /

1 detailed in the Court’s March 21, 2022 Order, see ECF No. 105 at 2–11. Thus, the Court

2 will only set forth here the procedural history relevant to this Motion.

3 On May 19, 2021, the Deputy Defendants filed a Motion for Summary Judgment.

4 See ECF No. 86 (“MSJ”). Plaintiff failed to timely oppose, see ECF No. 93, but filed a

5 late Opposition, see ECF No. 101. The Deputy Defendants filed their Reply, see ECF No.

6 103, and the Court accepted the late-filed Opposition and the Reply and took the matter

7 under submission, see ECF No. 104. Thereafter, this Court granted in part and denied in

8 part the Deputy Defendants’ Motion for Summary Judgment. See ECF No. 105 (the

9 “Order”). Specifically, the Court granted the Deputy Defendants’ Motion as to Plaintiff’s

10 claim for excessive force as to Sergeant Michalke; Plaintiff’s fourth cause of action for

11 unreasonable seizure of his phone; and Plaintiff’s fifth cause of action for unreasonable

12 search of his person, belongings, and vehicle. See id. at 37. The Court denied the Deputy

13 Defendants’ Motion as to Plaintiff’s claim for excessive force as to Deputies Shea and

14 Lizarraga and Plaintiff’s claim for retaliation in its entirety. See id. The Deputy

15 Defendants subsequently filed the instant Motion. See ECF No. 108.

16 LEGAL STANDARD

17 In the Southern District of California, a party may apply for reconsideration

18 “[w]henever any motion or any application or petition for any order or other relief has been

19 made to any judge and has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i)(1).

20 The moving party must provide an affidavit setting forth, inter alia, “what new or different

21 facts and circumstances are claimed to exist which did not exist, or were not shown, upon

22 such prior application.” Id. “In resolving motions for reconsideration, courts often look to

23 the standard for relief from final judgment set forth in Federal Rules of Civil Procedure

24 59(e) and 60(b), which apply to motions for reconsideration of final appealable orders and

25 relief from judgment.” Evanston Ins. Co. v. Venture Point, LLC, No.

26 220CV01783KJDEJY, 2021 WL 5500486, at *1 (D. Nev. Nov. 23, 2021).

27 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly

28 discovered evidence, committed clear error, or if there is an intervening change in the

1 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation

2 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en

3 banc)) (emphasis in original). “Clear error or manifest injustice occurs when ‘the

4 reviewing court on the entire record is left with the definite and firm conviction that a

5 mistake has been committed.’” Young v. Wolfe, CV 07-03190 RSWL-AJWx, 2017 WL

6 2798497, at *5 (C.D. Cal. June 27, 2017) (quoting Smith v. Clark Cnty. Sch. Dist., 727 F.3d

7 950, 955 (9th Cir. 2013)). “As the Ninth Circuit has explained the clear error standard,

8 ‘[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably

9 wrong; it must, as one member of this court recently stated during oral argument, strike us

10 as wrong with the force of a five-week old, unrefrigerated dead fish.’” Stanislaus Food

11 Prod. Co. v. USS-POSCO Indus., No. 1:09-CV-00560-LJO, 2012 WL 6160468, at *3 n.2

12 (E.D. Cal. Dec. 11, 2012) (quoting Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001),

13 overruled on other grounds by Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2002)).

14 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of

15 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229

16 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for

17 reconsideration is in the “sound discretion” of the district court. Navajo Nation v. Norris,

18 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may

19 not raise new arguments or present new evidence if it could have reasonably raised them

20 earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d

21 656, 665 (9th Cir. 1999)).

22 ANALYSIS

23 The Deputy Defendants ask the Court to reconsider its March 21, 2022 Order to the

24 extent it denied the Deputy Defendants’ Motion for Summary Judgment as to Plaintiff’s

25 First Amendment retaliation claim. See generally Mot. The Deputy Defendants contend

26 that the Court committed clear error by (1) finding that the timing of the speech and alleged

27 retaliatory conduct could constitute circumstantial evidence of subjective intent and (2)

28 / / /

1 denying qualified immunity to the Deputy Defendants. Id. at 2. Plaintiff, appearing pro

2 se, did not file an opposition to the Deputy Defendants’ Motion.

3 In their Motion, however, the Deputy Defendants raise “the same arguments, facts[,]

4 and case law” that this Court already considered; accordingly, the Deputy Defendants raise

5 insufficient grounds to grant reconsideration. See Wargnier v. Nat’l City Mortg. Inc., No.

6 09cv2721-GPC-BGS, 2013 WL 3810592, at *2 (S.D. Cal. July 22, 2013) (denying motion

7 for reconsideration where the motion reflected the same arguments, facts, and case law that

8 were previously considered and ruled upon by the court). “A motion for reconsideration

9 is not an opportunity to renew arguments considered and rejected by the court, nor is it an

10 opportunity for a party to re-argue a motion because it is dissatisfied with the original

11 outcome.” See FTC v. Neovi, Inc., No. 06-CV-1952-JLS JMA, 2009 WL 56130, at *2

12 (S.D. Cal. Jan. 7, 2009) (quoting Devinsky v. Kingsford, No. 05 Civ.2064(PAC), 2008 WL

13 2704338, at *2 (S.D.N.Y. 2008)), aff’d, 604 F.3d 1150 (9th Cir. 2010). Consequently, the

14 Deputy Defendants have failed to establish that they are entitled to reconsideration of the

15 Court’s Order on the identified issues.

16 Furthermore, considering the relevant Ninth Circuit authority, the Court does not

17 find that denying summary judgment as to the retaliation claim gives rise to “the definite

18 and firm conviction that a mistake has been committed.” Young, 2017 WL 2798497, at *5

19 (citation and internal quotation marks omitted). First, the Deputy Defendants argue that

20 Plaintiff’s speculation that the Deputy Defendants acted out of retaliation is not sufficient

21 evidence to be cognizable on summary judgment. Mot. at 3–4 (citing Wood v. Yordy, 753

22 F.3d 899, 905 (9th Cir. 2014); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028 (9th

23 Cir. 2001)). The Deputy Defendants further argue that “Ninth Circuit jurisprudence is clear

24 that circumstantial evidence of timing alone is not enough to prove retaliatory intent.” Mot.

25 at 4 (citing Pratt v. Rowland, 65 F.3d 802, 804 (9th Cir. 1995)).

26 The Court respectfully disagrees with the Deputy Defendants. The Ninth Circuit has

27 stated that “a plaintiff create[s] a genuine issue of material fact where he produce[s]

28 additional evidence that the ‘proximity in time between the protected action and the

1 allegedly retaliatory [arrest]’ [is such that] a ‘jury logically could infer [that the plaintiff]

2 was [arrested] in retaliation for his speech.’” Keyser v. Sacramento City Unified Sch. Dist.,

3 265 F.3d 741, 744 (9th Cir. 2001) (quoting Schwartzman v. Valenzuela, 846 F.2d 1209,

4 1212 (9th Cir. 1988)). The Deputy Defendants contend that Plaintiff does not have the

5 “additional evidence” needed to establish a genuine issue of material fact, Mot. at 5; yet,

6 the “additional evidence” referred to in Schwartzman was simply evidence that the

7 defendants were aware of the plaintiff’s speech, 846 F.2d at 1212. Here, although the

8 specific facts are heavily disputed, it is uncontested that the Deputy Defendants were aware

9 of Plaintiff’s speech. See ECF 105 at 4–6.

10 Likewise, in its Order, this Court correctly noted that “timing can properly be

11 considered as circumstantial evidence of retaliatory intent.” Pratt, 65 F.3d at 808 (citing

12 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989)). In Pratt,

13 circumstantial evidence of timing was not enough to prove retaliatory intent because, “most

14 importantly, there [was] insufficient evidence to support . . . the finding that [the] officials

15 . . . were actually aware of the [speech].” Id. Here, the Deputy Defendants’ awareness of

16 Plaintiff’s speech could suffice as the “additional evidence” needed to create a genuine

17 issue of material fact regarding the timing of the speech and alleged retaliatory conduct.

18 See Keyser, 265 F.3d at 744. Accordingly, as the Court previously found, drawing all

19 reasonable inferences in Plaintiff’s favor and viewing the evidence in the light most

20 favorable to him, a jury could reasonably infer that the Deputy Defendants went “hands

21 on” and ultimately arrested, searched, and charged Plaintiff in retaliation for his refusal to

22 comply with their requests rather than to prevent the introduction of contraband into a

23 detention facility or for the alleged commission of the crimes of public intoxication and/or

24 resisting arrest. See Beck v. City of Upland, 527 F.3d 853, 868 (9th Cir. 2008). And while

25 the Deputy Defendants make much of their search operation and their alleged intent to

26 search Plaintiff before he engaged in protected speech, see Mot. at 7, an argument already

27 raised and rejected, see MSJ at 19; Order at 36, the fact remains that a jury could plausibly

28 conclude that Plaintiff’s exercise of his constitutional rights motivated the Deputy

1 Defendants to use force they otherwise would not have in effecting that search and

2 subsequently arresting Plaintiff. Accordingly, the Court finds that it was neither clearly

3 erroneous nor manifestly unjust to deny summary judgment as to the retaliation claim.

4 Second, the Deputy Defendants argue that even if Plaintiff did adduce sufficient

5 evidence to withstand summary judgment, the Deputy Defendants are entitled to qualified

6 immunity because no clearly established case law provided notice that their conduct in this

7 context was unlawful. Mot. at 10 (citing Shay v. City of Huntington Beach, 816 F. App’x

8 47, 50 (9th Cir. 2020)). The Deputy Defendants contend that the particular facts of the two

9 cases cited by the Court do not put the Deputy Defendants on notice of a First Amendment

10 violation. Id. at 9 (citing Gasho v. United States, 39 F.3d 1420, 1425–27 (9th Cir. 1994);

11 Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1374 (9th Cir. 1990)). The Deputy

12 Defendants argue that Gasho and Duran are not controlling because in both cases the

13 alleged retaliatory conduct occurred in public where the officers were required to have

14 probable cause to search; yet here, the alleged retaliatory conduct occurred on the private

15 grounds of a detention facility in which all visitors entering the grounds are made aware

16 that they are subject to administrative searches while on the property. Id. The Deputy

17 Defendants ultimately contend that, “to defeat qualified immunity, Plaintiff must set forth

18 a case where officers initially acting pursuant to the administrative search exception, and

19 conducting a pre-planned investigation, subjectively violated Plaintiff’s First Amendment

20 rights, when Plaintiff’s exercise of those rights consisted of a refusal to be searched.” Id.

21 at 9–10.

22 The Court disagrees with the Deputy Defendants. The argument that Gasho and

23 Duran fail to provide notice of a constitutional violation is unavailing. See Mot. at 9. The

24 issue here is not whether the Deputy Defendants are entitled to qualified immunity as to

25 the administrative search, but whether they are entitled to qualified immunity for going

26 “hands on” and ultimately arresting Plaintiff in response to his denial of consent to the

27 deputies’ search. See ECF No. 63 (“Pl.’s 3d Am. Compl.”) ¶¶ 80, 84, 87. Although no

28 case law existed at the time that instructed the deputies that Plaintiff should be allowed to

1 ||leave the facility prior to being searched, Cates v. Stroud, 976 F.3d 972, 984 (9th Cir.

2 2020), the Court has correctly noted that “[i]t is clearly established that a person’s Fourth

3 || Amendment rights are violated 1f the sole basis for his arrest is his challenge to the officer’s

4 || authority absent a warrant.” Gasho, 39 F.3d at 1439. The deputies should have been aware

5 || of the clearly established law that “probable cause is obviously lacking when the arrest is

6 ||motived purely by a desire to retaliate against a person who verbally challenges the

7 authority to effect a seizure or arrest.” /d. at 1438. Here, the Deputy Defendants forcibly

8 ||seized and arrested Plaintiff for public intoxication and resisting or obstructing a peace

9 || officer after Plaintiff refused to consent to the search. See Order at 8. That the Deputy

10 || Defendants did not conduct any sobriety tests of Plaintiff after Plaintiff contends that he

11 ||asked the deputies for a field sobriety test or a “toxicology examination” further supports

12 || an inference that the arrest may have been retaliatory and pretextual. /d. Thus, as noted in

13 || the Order, the Court finds that a reasonable jury could conclude that the Deputy Defendants

14 “hands on” and ultimately arrested Plaintiff in retaliation for his constitutionally

15 || protected refusal to comply with their commands. /d. at 36. Accordingly, the Court finds

16 || that its ruling that the Deputy Defendants are not entitled to qualified immunity as a matter

17 || of law on Plaintiffs retaliation claim was neither clearly erroneous nor manifestly unjust.

18 CONCLUSION

19 In light of the foregoing, the Court DENIES the Deputy Defendants’ Motion for

20 || Reconsideration (ECF No. 108). The Court will issue separate rulings on the Deputy

21 Defendants’ Supplemental Motion for Summary Judgment (ECF No. 109) and □□□□□□□□□□

22 ||Motion to Extend Time and Request Court Appointed Attorney (ECF No. 110) in due

23 || course.

24 IT IS SO ORDERED.

25 || Dated: June 16, 2022 jae L. Lo memeaite-

on. Janis L. Sammartino

37 United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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