affirming a cursory district court order summarily adopting, without 4 addressing any objections, a magistrate judge’s report and recommendation
How later courts described this case
- affirming a cursory district court order summarily adopting, without 4 addressing any objections, a magistrate judge’s report and recommendation
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
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Case No. 2:21-cv-04200-SSS-PD
11 CHRISTOPHER T. BARONE,
12 Plaintiff,
13 ORDER ACCEPTING REPORT
v. AND ADOPTING FINDINGS,
14 CONCLUSIONS, AND
RECOMMENDATIONS OF
15 LOS ANGELES COUNTY
UNITED STATES MAGISTRATE
SHERIFF’S DEPARTMENT, et al.
16 JUDGE
17 Defendants.
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19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second
20 Amended Complaint (“SAC”), the summary judgment motion filed by
21 Defendants Los Angeles County Sheriff’s Department, Deputy Alexandria
22 Metcalf, and Deputy Heather Parks (“Motion”), the records on file, the Report
23 and Recommendation of United States Magistrate Judge recommending
24 granting the Motion (“Report”), Plaintiff’s Objections to the Report, and
25 Defendants’ Response to Plaintiff’s Objections. [Dkt. 39, 62–64, 70, 71, 73].
26 The Court has conducted a de novo review of the portions of the Report to
27 which Objections were directed. Although not required, the Court briefly
1 (9th Cir. 2023) (“the district court ha[s] no obligation to provide individualized
2 analysis of each objection”); Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir.
3 2005) (affirming a cursory district court order summarily adopting, without
4 addressing any objections, a magistrate judge’s report and recommendation).
5 Plaintiff did not file an opposition to the Motion. Plaintiff asserts five
6 objections to the Report: (1) there are disputes of material fact regarding
7 whether there was probable cause to arrest Plaintiff; (2) there are disputes of
8 material fact with respect to the reasonableness of Deputy Metcalf’s search of
9 Plaintiff; (3) the Monell claim raises triable issues of fact; (4) Defendants failed
10 to meet their burden with respect to non-compliance with the Government
11 Claims Act; and (5) sufficient evidence exists to support an intentional infliction
12 of emotional distress claim. [Dkt. 71].
13 Objection One
14 Plaintiff objects to the Report’s finding that there was probable cause for
15 his arrest based on his claims that the temporary restraining order (“TRO”) had
16 expired, he was never served with the TRO, his arrest lacked probable cause
17 because the TRO required him to stay away from Michael Allan, who was not
18 present at the time of his arrest, he should be excused because some unspecified
19 deputies at unspecified times purportedly did not arrest others for their
20 violations of unspecified restraining orders, and Deputies Parks and Metcalf’s
21 decision to call the reporting party, Ms. Wagner, to the scene to assist in their
22 investigation somehow undermined probable cause for Plaintiff’s arrest. [Dkt.
23 71 at 2–5, 8]. This objection is without merit for the reasons set forth in the
24 Report, which addresses each of these allegations in detail.
25 In particular, Plaintiff’s objection that he was unaware that the TRO had
26 been extended is contradicted by court records showing that he appeared at the
27 hearing where it was extended. [Dkt. 64 at 51, 54].
1 Objection Two
2 Plaintiff objects to the Report’s discussion of the post-arrest search. [Dkt.
3 71 at 8, 11–15]. Plaintiff submits that triable issues of fact exist as to whether
4 Deputy Metcalf’s search violated the Fourth Amendment, that no evidence
5 suggested that Deputy Metcalf had reason to believe that Plaintiff was
6 concealing contraband, and that his allegations alone create a triable issue of
7 fact. [Id.]. Plaintiff’s objections are without merit for the reasons set forth in
8 the Report.
9 In the Objections, Plaintiff states that Deputy Metcalf “forcibly fondled
10 [his] genitals for several minutes.” [Dkt. 71 at 11]. However, at his deposition,
11 Plaintiff testified that Deputy Metcalf performed the pat-down search of his
12 body, and that the entire search lasted about a minute. [Dkt. 63-1 at 67]. As
13 discussed in the Report, the undisputed evidence demonstrates that the search
14 conducted by Deputy Metcalf constituted de minimis touching for purposes of
15 Fourth Amendment analysis and that the Deputies are entitled to summary
16 judgment on Plaintiff’s unreasonable search and seizure claim. Further,
17 Plaintiff’s reliance on Minnesota v. Dickerson, 508 U.S. 366 (1993) and Safford
18 Unified School District #1 v. Redding, 557 U.S. 364 (2009), [Dkt. 71 at 12–13],
19 is misplaced, because those cases relate to expanding the scope of a pat-down
20 search, such as through reaching into pockets (Minnesota) and searching
21 underwear (Safford), which did not occur here. Deputy Metcalf searched
22 Plaintiff through his outer clothing and did not exceed the scope of a reasonable
23 pat-down search.
24 Plaintiff also argues that his allegation that Deputies Parks and Metcalf
25 inappropriately groped his genitals alone raises a “triable issue on the federal
26 § 1983 claim, regardless of probable cause for the initial arrest.” [Id. at 8].
27 Plaintiff is mistaken. On summary judgment the non-moving party “may not
1 256. Rather, the nonmoving party “must present affirmative evidence ... from
2 which a jury might return a verdict in his favor.” Id. A party cannot create a
3 genuine issue of material fact simply by making assertions in its legal papers.
4 S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d
5 1235, 1238 (9th Cir. 1982). Here, there are no triable issues of fact as to
6 Plaintiff’s claim that Deputy Metcalf’s search was unreasonable and violated the
7 Fourth Amendment.
8 Plaintiff further objects to the Report’s conclusion that Deputies Metcalf
9 and Parks are entitled to qualified immunity. [Dkt. 71 at 9, 13–14]. He argues
10 that his allegations regarding the violation of the Equal Protection Clause “could
11 demonstrate that he was improperly singled out” and therefore, qualified
12 immunity would not shield Defendants. [Id. at 9]. However, Plaintiff did not
13 raise an Equal Protection claim in the SAC, and he does not allege that he
14 belonged to a protected class or suffered any discrimination and fails to provide
15 any evidence supporting his claim. In the Objections, Plaintiff also asserts that
16 under Mendez v. County of Los Angeles, 897 F.3d 1067 (9th Cir. 2018), a
17 “reasonable officer would know that fondling a restrained subject’s genitals
18 without justification violates the suspect’s clearly established rights.” [Id. at
19 13–14]. However, Mendez has nothing to do with post-arrest or pat-down
20 searches. Further, as explained in the Report, there is no evidence of
21 misconduct during the brief pat-down search.
22 Objection Three
23 Plaintiff objects to the Report’s discussion of the Monell claim. [Dkt. 71
24 at 14–16, 19–22.] Plaintiff asserts that the allegations in his SAC of prior
25 incidents involving LASD deputies engaging in the same types of misconduct at
26 issue here demonstrate a pattern of unlawful conduct (citing the SAC at ¶¶ 54–
27 62), and that his allegations “must be accepted as true at this stage” and are
1 his allegations regarding the LASD’s failure to discipline deputies involved in
2 prior incidents of misconduct (citing the SAC at ¶¶ 63-65), bolster his Monell
3 claim by supporting an inference of deliberate indifference by LASD
4 policymakers. [Id. at 20-21]. Plaintiff further asserts that the allegations and
5 reasonable inferences in the SAC, are sufficient to raise genuine disputes of
6 material fact as to the existence of a county custom or practice of
7 unconstitutional conduct. [Id. at 21–22].
8 These objections are without merit. Plaintiff’s reference to the unverified
9 SAC do not support a Monell claim, as paragraphs 54-62 do not demonstrate a
10 pattern of misconduct and paragraphs 63-65 do not support an inference of
11 deliberate indifference. Further, as noted above, the non-moving party on
12 summary judgment “may not rest upon mere allegation or denials of his
13 pleadings.” Anderson, 477 U.S. at 256. As explained in the Report, an
14 improper custom cannot be based “on isolated or sporadic incidents; it must be
15 founded upon practices of sufficient duration, frequency and consistency that
16 the conduct has become a traditional method of carrying out policy.” Trevino v.
17 Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citation omitted). Here, there is no
18 evidence linking a county policy or custom to the conduct of any individual
19 Defendants with respect to Plaintiff’s claims. In sum, Plaintiff has raised no
20 triable issue of fact as to his Monell claim.
21 Objection Four
22 Plaintiff objects to the Report’s finding that he failed to produce evidence
23 showing compliance with the Government Claims Act. [Dkt. 71 at 16–22].
24 Plaintiff asserts that Defendants did not meet their burden of demonstrating the
25 absence of a triable issue of fact as to this issue, the declaration of Katherine
26 Medina lacks foundation and personal knowledge, is unauthenticated and
27 hearsay, and is contradicted by Plaintiff’s testimony, the SAC alleges
1 granting summary judgment would be a miscarriage of justice given evidence of
2 Plaintiff’s compliance and, to the extent this is alleged, the purpose of the
3 Government Claims Act is to provide notice to public entities, not serve as a
4 technical trap for plaintiffs. [Dkt. 71 at 16–22].
5 These objections are without merit. As explained in the Report,
6 Defendants produced a declaration under penalty of perjury from Ms. Medina,
7 Deputy Clerk of the Board of Supervisors for the County of Los Angeles,
8 attesting that the County had never received a claim from Plaintiff—and
9 Plaintiff failed to produce any competent contrary evidence or oppose it on
10 summary judgment. [Dkt. 63-3 at 2–3]. Further, Plaintiff’s reference to the
11 unverified SAC does not demonstrate compliance, as paragraphs 66 and 67 do
12 not allege compliance or make reference to the Government Claims Act.
13 Further, as explained above, allegations made in pleadings are not evidence.
14 See Anderson, 477 U.S. at 256.
15 The Report states that the Court ordered Plaintiff to produce to
16 Defendants by November 30, 2022, the document showing he had complied
17 with the Government Claims Act, and that he never produced this document.
18 [Dkt. 70 at 20 n.6]. In his Objections, Plaintiff asserts that he complied with the
19 Government Claims Act and filed his tort claim on July 5, 2020. [Dkt. 71 at
20 18.] Attached to the Objections is a document entitled “Claims for Damages to
21 Person or Property” that bears the date July 6, 2020. [Id. at 46]. This document
22 is not authenticated. Construing the allegation liberally because Plaintiff is
23 proceeding pro se, this document could constitute evidence that Plaintiff filed a
24 tort claim on July 6, 2020, and thus preclude summary judgment based on
25 Defendants’ argument that Plaintiff failed to comply with the Government
26 Claims Act. A Court has discretion, but is not required to, consider arguments
27 or evidence presented for the first time in objections to a report and
1 States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000), cert. denied, 534 U.S.
2 831 (2001). The Court exercises its discretion to consider this document and,
3 therefore, does not adopt the recommendation in the Report that the Motion be
4 granted on the ground that Plaintiff failed to comply with the Government
5 Claims Act. However, even if this document had been timely produced and
6 authenticated, Defendants have met their burden of establishing the absence of a
7 genuine issue of material fact as to the state law claims in the SAC. Plaintiff did
8 not object to the Report’s recommendation granting summary judgment to
9 Defendants on Plaintiff’s state law claims for false arrest/false imprisonment,
10 the Bane Act, and negligence. The Court therefore adopts the recommendation
11 in the Report that the Motion be granted on the state law claims in the SAC.
12 Objection Five
13 Plaintiff objects to the Report’s finding that there was insufficient
14 evidence to sustain his intentional infliction of emotional distress claim. [Dkt.
15 71 at 22–26]. Plaintiff asserts that he has offered ample evidence to create a
16 triable issue of fact—with respect to “Deputy Metcalf’s invasive and abusive
17 search” and the “baseless arrest on an invalid warrant”—to find extreme and
18 outrageous conduct. [Id. at 22]. These objections are without merit. As
19 explained in the Report, the search did not violate the Fourth Amendment and
20 there was probable cause to arrest him. Plaintiff did not produce admissible
21 evidence that Defendants engaged in any “extreme or outrageous” conduct.
22 The Court accepts the findings and recommendations of the Magistrate
23 Judge and adopts them as its own findings and conclusions with the exception
24 as set forth above.
25 //
26 //
27 //
1 IT THEREFORE IS ORDERED that Defendants’ Motion for Summary
|| Judgment is GRANTED, and that judgment be entered dismissing the SAC and
3 || this action WITH PREJUDICE.
4 IT IS SO ORDERED.
6 || DATED: June 12, 2024
7 SUNSHINE S. SY Ke
United States District Judge
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