(PS) Iliya v. County of Sacramento

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAUDA ILIYA, Case No. 2:22-cv-01305 DC CSK PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANTS’ MOTION FOR 14 COUNTY OF SACRAMENTO, et al., SUMMARY JUDGMENT; AND 15 Defendants. ORDER RE: PLAINTIFF’S MOTIONS TO STAY AND TO ADDRESS CLERICAL 16 ERRORS 17 (ECF Nos. 49, 55, 63) 18 19 Pending before the Court is a motion for summary judgment on all claims by 20 Defendants County of Sacramento; Anne Marie Schubert in her official capacity as the 21 prior District Attorney for Sacramento County; Scott R. Jones in his official capacity as 22 the prior Sheriff for Sacramento County Sheriff’s Department; and Matthew McCune in 23 his individual capacity and in his official capacity as a Deputy Sheriff of Sacramento 24 County.1 (ECF No. 49.) Plaintiff Dauda Iliya, who is proceeding without counsel, brings 25 claims for an alleged violation of his Fourth Amendment right to be free from unlawful 26 seizures (false arrest), malicious prosecution, intentional infliction of emotional distress, 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c). 1 and “supervisory liability.” First Amended Compl. (“FAC”) (ECF No. 11). The motion for 2 summary judgment is fully briefed. (ECF Nos. 49, 53, 62.) Plaintiff has also filed a motion 3 to stay the motion for summary judgment, and a motion to address clerical errors. (ECF 4 Nos. 55, 63.) For the reasons that follow, the Court DENIES Plaintiff’s motion to stay and 5 motion to address clerical errors and RECOMMENDS GRANTING Defendants’ motion 6 for summary judgment. 7 I. BACKGROUND 8 A. Factual Background2 9 On June 8, 2020, Defendant McCune was on patrol and received a notification or 10 “hit” from the Vigilant Solutions License Plate Reader (“LPR”) program indicating that a 11 stolen vehicle was traveling eastbound on 47th Avenue in Sacramento, California from 12 Martin Luther King Jr. Boulevard. Decl. of Matthew McCune ¶ 5 (ECF No. 49-3). The 13 vehicle was a Scion SB, with the California License plate number 5NMB022. Id. After 14 receiving the hit from the LPR system, Defendant McCune observed the Scion XB 15 traveling eastbound on 47th Avenue. Id. ¶ 12. Defendant McCune continued following 16 the vehicle and conducted a records check of the vehicle with dispatch to confirm that it 17 was reported stolen. Id. ¶ 14. Dispatch confirmed that the vehicle was reported stolen on 18 June 3, 2020. Id.; see Pl. Opp’n, Exhs. at 32-33 (ECF No. 55). Defendant McCune 19 broadcasted on his radio that he was traveling behind a stolen Scion and waited for 20 additional units to respond to his location. McCune Decl. ¶ 15. He followed the vehicle 21 eastbound on 47th Avenue toward Stockton Boulevard, when the driver turned 22 southbound and into a business complex and parked. Id. ¶ 17. 23 Defendant McCune activated his overhead emergency vehicle lights and initiated 24 a “high-risk” vehicle stop. Id. ¶ 18. A stop of a suspected vehicle is considered “high-risk” 25 26 2 In their reply, Defendants argue that their statement of undisputed facts should be adopted in its entirety because Plaintiff’s response to the statement of undisputed facts 27 did not comply with the Local Rules. (ECF No. 62 at 2.) Where Defendants’ facts are supported by the record, they will be considered undisputed. See Caldwell-Parker v. 28 Surprise Police Dep’t, 2022 WL 18110867, at *2 n.3 (D. Ariz. Dec. 2, 2022). 1 because of the risks to the officers and the public, because the suspect may attempt to 2 evade, could resist arrest by use of a firearm, or the suspect may use the vehicle as a 3 weapon to avoid arrest. Id. ¶ 16. He gave verbal commands to the driver to put his 4 hands up, open the door, and step out of the vehicle. Id. ¶ 18; McCune Decl., Exh. 2A, 5 McCune Video 0:50-0:58. Defendant McCune drew his weapon when he gave these 6 commands. McCune Decl. ¶ 18. Plaintiff was handcuffed without incident and placed in 7 the back of Defendant McCune’s patrol vehicle. Id.; McCune Video1:33-1:52. Defendant 8 McCune asked Plaintiff if he had ID on him. McCune Video 2:15-2:30. Plaintiff asked 9 Defendant McCune why he was being arrested. Id. Defendant McCune told Plaintiff he 10 was being detained because the vehicle he was driving was reported stolen. McCune 11 Decl. ¶ 20; McCune Video 2:15-2:30. Plaintiff responded “WOW,” and expressed shock 12 that the vehicle was stolen. McCune Video 2:17-2:30. Defendant McCune asked Plaintiff 13 whether he had proof of ownership paperwork for the vehicle inside the car. McCune 14 Decl. ¶ 21; McCune Video 3:35-3:40. Plaintiff said no. Id. Defendant McCune asked 15 Plaintiff where the paperwork was located and Plaintiff replied that it was “secure.” 16 McCune Decl. ¶ 21; McCune Video 3:40-3:45. Plaintiff then stated that he wanted to 17 speak to a lawyer. McCune Decl. ¶ 21; 3:45-3:50. Plaintiff was detained for about 40 18 minutes before Defendant McCune transported him to the Sacramento County Main Jail 19 for booking. McCune Decl. ¶ 22. Plaintiff was charged with receiving stolen property and 20 motor vehicle theft. Id. ¶ 23. Plaintiff was searched, and $1,309.53 was found on his 21 person. McCune Decl. ¶ 24; McCune Video 22:20-22:30; see FAC ¶ 16. 22 Plaintiff disputes that the vehicle was stolen. Plaintiff states that he purchased the 23 vehicle in June 2020 from a person identified as James Lahey. FAC ¶ 8. Plaintiff 24 received the key, vehicle, and title in exchange for cash at the time of purchase. Id. ¶ 9. 25 Plaintiff alleges that the criminal case against him was dismissed at the preliminary 26 hearing for lack of evidence. Id. ¶ 20. 27 B. Procedural Background 28 Plaintiff filed his FAC on November 22, 2022. See FAC. Defendants filed an 1 answer on December 13, 2022. (ECF No. 14.) 2 Defendants filed their motion for summary judgment on August 6, 2024. (ECF No. 3 49.) On August 22, 2024, Plaintiff filed an opposition. (ECF No. 53.) Because Plaintiff’s 4 opposition was over twenty pages long in violation of the undersigned’s standing orders, 5 the Court issued an order rejecting this opposition and instructing Plaintiff to file an 6 opposition that complied with the standing orders. 8/27/2024 Order (ECF No. 54). 7 Plaintiff was warned that if he did not file a revised opposition brief that complied with 8 these requirements, the Court would limit its review to the first twenty pages of Plaintiff’s 9 first opposition. Id. Plaintiff filed a new opposition on September 6, 2024 (ECF No. 58), 10 which unfortunately still did not comply with the Court’s standing orders. Defendants 11 timely filed their reply on September 16, 2024, correctly responding to the first twenty 12 pages of Plaintiff’s first opposition. (ECF No. 62.) 13 On August 15, 2025, Plaintiff filed a motion to change venue due to alleged 14 judicial bias (ECF No. 51), and on September 13, 2024, he filed a motion for recusal of 15 the undersigned (ECF No. 61). The Court denied both motions on February 13, 2025. 16 2/13/2025 Order (ECF No. 67). The Court found that there was no basis for recusal and 17 that the Eastern District of California is the proper venue for this case. Id. at 4, 5. 18 On August 28, 2024, Plaintiff filed a motion to stay summary judgment pending 19 the resolution of Plaintiff’s motion to change venue. (ECF Nos. 52, 55.) Plaintiff filed a 20 motion to address clerical errors on September 23, 2024. (ECF No. 63.) 21 II. LEGAL STANDARDS 22 A. Summary Judgment Standards 23 Summary judgment is appropriate when there is “no genuine dispute as to any 24 material fact and the mov[ing party] is entitled to a judgment as a matter of law.” Fed. R. 25 Civ. P. 56(c). The principal purpose of summary judgment is to dispose of factually 26 unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 27 Therefore, the “threshold inquiry” is whether there are any factual issues that could 28 reasonably be resolved in favor of either party, or conversely, whether the facts are so 1 one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 2 477 U.S. 242, 250-52 (1986). Summary judgment should be entered, after adequate 3 time for discovery and upon motion, against a party who fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on 5 which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. “[A] 6 complete failure of proof concerning an essential element of the nonmoving party’s case 7 necessarily renders all other facts immaterial.” Id. at 323. 8 In a summary judgment motion, the moving party must inform the court of the 9 basis for the motion and identify the portion of the record that it believes demonstrates 10 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving 11 party meets its initial burden, the burden then shifts to the opposing party to establish 12 that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio 13 Corp., 475 U.S. 574. 585 (1986). To establish the existence of genuine issue of material 14 fact, the opposing party may not rely upon the allegations or denials of its pleadings, but 15 must tender evidence of specific facts in the form of affidavits, and/or admissible 16 discovery material. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The 17 opposing party must demonstrate that the fact might affect the outcome of the suit and a 18 reasonable jury could return a verdict for the opposing party. See Anderson, 477 U.S. at 19 248; T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 20 1987). For the moving party to succeed, the court must conclude that no rational trier of 21 fact could find for the opposing party. Matsushita, 475 U.S. at 587. 22 All reasonable inferences that may be drawn from the facts placed before the 23 court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; 24 Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it 25 is the opposing party’s obligation to produce a factual predicate from which the inference 26 may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. 27 Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). In addition, while a verified 28 complaint may be considered as evidence at the summary judgment stage “if it is based 1 on personal knowledge and if it sets forth the requisite facts with specificity,” Lopez v. 2 Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000) (en banc), an unverified complaint 3 cannot be considered as evidence. Moran v. Selig, 447 F.3d 748, 759-60 (9th Cir. 2006) 4 (citing Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995); Lew v. 5 Kona Hospital, 754 F.2d 1420, 1423-24 (9th Cir. 1985)). 6 B. Video Evidence 7 The parties submitted video evidence. (ECF Nos. 49-4, 56.) Defendants 8 submitted video footage from Defendant McCune’s vehicle of Plaintiff’s arrest and 9 transport to jail that occurred on June 8, 2020. Plaintiff submitted multiple videos, 10 including videos of him having trouble accessing the Pacer website, videos of him using 11 a website to look at vehicles that are for sale, and a video of a drone flying over his 12 home. 13 The Supreme Court stated that when ruling on motions for summary judgment, 14 courts “should [ ] view[ ] the facts in the light depicted by the videotape.” Scott v. Harris, 15 550 U.S. 372, 380-81 (2007) (following review of videotape, holding deputy acted 16 reasonably in terminating car chase and did not violate respondent’s Fourth Amendment 17 right against unreasonable seizure). However, courts are still required to draw all 18 reasonable inferences in the nonmovant’s favor. Vos v. City of Newport Beach, 892 F.3d 19 1024, 1028 (9th Cir. 2018) (“The record is viewed in the light most favorable to the 20 nonmovants . . . so long as their version of the facts is not blatantly contradicted by the 21 video evidence.”); Williams v. Las Vegas Metro. Police Dep’t, 2016 WL 1169447, at *4 22 (D. Nev. Mar. 22, 2016) (“[t]he existence of the video does not change the usual rules of 23 summary judgment: in general, the court will draw all reasonable inferences from the 24 video in plaintiff’s favor”) (citing Blankenhorn v. City of Orange, 485 F.3d 463, 468 n.1 25 (9th Cir. 2007)). Thus, the Court considers the video footage, drawing all reasonable 26 inferences in Plaintiff’s favor. 27 / / / 28 / / / 1 III. DISCUSSION 2 Defendants move for summary judgment on all claims. The FAC raises the 3 following claims: (1) a Fourth Amendment false arrest claim under 42 U.S.C. § 1983 4 against “all public entity defendants,” which are presumed to be the County of 5 Sacramento, Sheriff Jones in his official capacity, and Defendant McCune; (2) malicious 6 prosecution under 42 U.S.C. § 1983 against all Defendants; (3) intentional infliction of 7 emotional distress against all Defendants; and (4) a “supervisory liability” claim for failure 8 to train against all “supervisory defendants,” which the Court construes to be Sheriff 9 Jones, the County, and District Attorney Schubert. FAC at 6-14. In the FAC, the phrase 10 “false imprisonment” and “wrongful imprisonment” are used, but no facts are alleged as 11 to imprisonment. Compare FAC ¶¶ 1, 2, 29, 62, 69, with FAC generally. Instead, the 12 FAC includes a bail allegation that suggests Plaintiff was not imprisoned. FAC ¶ 19. 13 Because the FAC does not allege any facts related to false or wrongful imprisonment, 14 and no argument is raised related to such a claim, the Court concludes that no false or 15 wrongful imprisonment claim has been alleged. 16 Plaintiff’s claims are raised against the following defendants: the County of 17 Sacramento; Anne Marie Schubert in her official capacity as District Attorney for the 18 County of Sacramento; Scott R. Jones in his official capacity as the Sheriff for the 19 County of Sacramento; and Matthew McCune, a Deputy Sheriff, in his individual and 20 official capacities. FAC at 2-3. In the “Parties” section of the FAC, the Sacramento 21 Sheriff’s Office is listed as a separate defendant. See FAC at 2. The FAC does not, 22 however, make separate allegations as to the Sheriff’s Office and does not identify the 23 Sheriff’s Office as a defendant in the caption. See FAC and FAC at 1. In addition, the 24 Sacramento County Sheriff’s Office was not served. See Docket. Therefore, because a 25 suit against the county police department is essentially a suit against the county, and the 26 FAC has already named Sacramento County as a separate defendant, the Court 27 construes the FAC’s one-time reference to the Sacramento Sheriff’s Office as a separate 28 defendant to be duplicative of Sacramento County, which is named as a separate 1 defendant. See Gunn v. Stanton Correctional Facility, 2021 WL 1402141, at *2 (E.D. 2 Cal. Apr. 4, 2021); Cantu v. Kings County, 2021 WL 411111, at * 1 (E.D. Cal. Feb. 5. 3 2021) (after recognizing split within district courts regarding whether naming a sheriff’s 4 department is redundant or duplicative of the municipal entity, concluding claims against 5 a municipality and its respective police departments are treated as claims against the 6 municipality and not subject to suit under 1983); see also Kamath v. United States Dep’t 7 of Homeland Security, 2024 WL 1077328, at *2 (N.D. Cal. Mar. 12, 2024) (agreeing to 8 substituting the city and county in place of the police department as a defendant where 9 plaintiff did not object). 10 A. Preliminary Issues 11 1. Plaintiff’s Opposition 12 On August 22, 2024, Plaintiff filed an opposition to Defendants’ summary 13 judgment motion. (ECF No. 53.) The Court issued an order rejecting Plaintiff’s opposition 14 because it exceeded the page limit allowed for oppositions in the undersigned’s standing 15 orders. 8/27/2024 Order. The Court gave Plaintiff the opportunity to file a revised 16 opposition limited to 20 pages. Id. at 2. The Court further instructed Plaintiff he could 17 attach his Statement of Disputed Facts following the requirements of Local Rule 260(b), 18 his response to Defendants’ Statement of Undisputed Facts following the requirements 19 of Local Rule 260(b), and exhibits to his revised opposition brief. Id. at 3. Plaintiff was 20 warned that if he failed to file a revised opposition brief limited to 20 pages or less, the 21 Court would only consider the first 20 pages of the document titled “Plaintiff’s Opposition 22 to Defendants’ Motion for Summary Judgment” filed at ECF No. 53 on August 22, 2024, 23 Plaintiff’s Statement of Disputed Facts, and Plaintiff’s exhibits. Id. 24 On September 6, 2024, Plaintiff filed a second opposition brief that again 25 significantly exceeded the 20 page-limit. Pl. Second Opp’n (ECF No. 58). Plaintiff’s 26 second opposition brief was 29 pages long, consisting of “Plaintiff’s Opposition to 27 / / / 28 / / / 1 Defendant’s Motion for Summary Judgment” that is six (6) pages long3 and “Plaintiff’s 2 Points & Authorities” that is 23 pages long. Id. at 1-30. Accordingly, as expressly 3 provided in the August 27, 2024 Order, the Court will consider only the first 20 pages of 4 Plaintiff’s first opposition, filed at ECF No. 53 on August 22, 2024, Plaintiff’s Statement of 5 Disputed Facts, and Plaintiff’s Exhibits. 8/27/2024 Order. The Court will not consider 6 Plaintiff’s second opposition filed on September 6, 2024, or the documents attached to 7 the second opposition. See id.; Pl. Second Opp’n (ECF Nos. 58, 58-1).4 8 2. New Claims Raised in Plaintiff’s Opposition and Plaintiff’s Request to Amend 9 Plaintiff also appears to attempt to raise new claims in his summary judgment 10 opposition for violation of the Bane Act, “fraud (machine $ miscount),” conversion, and 11 negligence. Pl. Opp’n at 3 (ECF No. 53). This is improper because these claims were not 12 pled in the FAC. Plaintiff may not raise new claims, factual allegations, or theories in an 13 opposition to a motion for summary judgment. See Pickern v. Pier 1 Imps. (U.S.), Inc., 14 457 F.3d 963, 969 (9th Cir. 2006); Coleman v. Quaker Oats, 232 F.3d 1271, 1294 (9th 15 Cir. 2000); see also Henderson v. Lizarraga, 2021 WL 843461, at *12 (E.D. Cal. Mar. 5, 16 2021). Therefore, the Court will not consider the new claims Plaintiff attempts to raise in 17 his opposition. 18 In Plaintiff’s statement of undisputed facts, Plaintiff requests amending his FAC, 19 which is not the proper way to raise this request. See Pl. Stmt. Undisputed Facts at 2 20 (ECF No. 53-2). Plaintiff has not filed a motion to amend his FAC, and has not provided 21 a copy of the proposed amended complaint for the Court to evaluate. The Court further 22 notes that Plaintiff already amended his Complaint once. The Court’s pretrial scheduling 23 order provided that no further amendment of the pleadings would be allowed without 24 25 26 3 Though Plaintiff numbered this portion of his document as seven (7) pages long, the Court does not count the first page, which consists only of the caption. (See ECF No. 58 27 at 1.) 4 The documents attached to Plaintiff’s second opposition brief were not included in 28 calculating the length of the opposition brief. (See ECF No. 58 at 31-50 & ECF No. 58-1.) 1 leave of Court, and a showing of good cause. (ECF No. 18 at 4.) At this stage in the 2 proceedings, good cause is not shown to amend the FAC. See Gonzales v. Koranda, 3 2024 WL 3861988, at *12 (E.D. Cal. Aug. 19, 2024). Therefore, Plaintiff’s request to 4 amend his FAC is denied. 5 3. Plaintiff’s Motion to Address Clerical Errors (ECF No. 63) 6 On September 23, 2024, Plaintiff filed a motion to address clerical errors that 7 raises three issues. (ECF No. 63.) Defendants have not filed a response or opposition to 8 this motion. See Docket. 9 First, Plaintiff states that his documents were improperly filed as a single, 50 page 10 document at ECF No. 59 rather than as separate filings. (ECF No. 63). ECF No. 59, 11 however, is Plaintiff’s notice of lodging of video/audio files in support of Plaintiff’s second 12 opposition. It appears that Plaintiff is referring to ECF No. 58, which is Plaintiff’s second 13 opposition. Regardless, as discussed above, the Court did not count Plaintiff’s exhibit 14 attachments in calculating the 20 page limit for opposition briefs. Even if Plaintiff’s 15 second opposition had been filed as separate documents rather than as a single 16 document, it still would not have complied with the undersigned’s page limits. 17 Second, Plaintiff also states that “Plaintiff’s Exhibits #3 in Support of Opposition to 18 Defendant’s Motion for Summary Judgment” was not filed on the docket. The document 19 titled “Plaintiff’s Exhibits #3 in Support of Opposition to Defendant’s Motion for Summary 20 Judgment” was filed on August 28, 2024 with Plaintiff’s motion to stay at ECF No. 55. 21 (ECF No. 55 at 5-152.) Because these exhibits were filed on August 28, 2024 before 22 Plaintiff received the Court’s August 27, 2024 order addressing Plaintiff’s first opposition, 23 and because Plaintiff’s first opposition was filed on August 22, 2024, the Court will 24 consider the document titled “Plaintiff’s Exhibits #3 in Support of Opposition to 25 Defendant’s Motion for Summary Judgment.” 26 The Court further directs the Clerk of Court to (1) separately file “Plaintiff’s 27 Exhibits #3 in Support of Opposition to Defendant’s Motion for Summary Judgment,” 28 which is currently filed as ECF No. 55 at 5-152, as a separate docket entry with a filing 1 date of August 28, 2024, which is the date stamped on ECF No. 55 at 1 and the date 2 identified by Plaintiff at ECF No. 55 at 151; and (2) remove what is currently filed at ECF 3 No. 55 at 5-152 from ECF No. 55. 4 This clerical error appears to have been an inadvertent error due to how Plaintiff 5 has submitted his various voluminous filings to the court. To prevent these types of 6 errors, Plaintiff should make clear when his filings are separate documents (e.g., 7 by mailing different filings separately, including a cover page with instructions on which 8 documents go together, etc.), rather than mailing voluminous documents together and 9 improperly putting the burden on the Clerk’s Office to try to decipher Plaintiff’s 10 voluminous documents. 11 Third, Plaintiff also states that he submitted video and audio files supporting his 12 opposition that were stamped as filed on September 6, 2024, but the electronic docket 13 indicates they were filed on September 9, 2024 (see ECF No. 59), which Plaintiff states 14 could impact the Court’s consideration of these materials. The filing date reflected on the 15 docket does not impact the Court’s consideration of these materials. Plaintiff is correct, 16 however, that the docket for ECF No. 59 reflects the incorrect filing date. The Court 17 therefore grants Plaintiff’s request to correct the docket entry for ECF No. 59 to reflect 18 September 6, 2024 as the filing date for Plaintiff’s notice of lodging video/audio files. 19 The Court will not consider Plaintiff’s video/audio files submitted at ECF No. 59 20 because these files were filed on September 6, 2024 in support of Plaintiff’s second 21 opposition. As described above, the Court is not considering Plaintiff’s second 22 opposition. The Court further notes that the video/audio files Plaintiff submitted with his 23 second opposition appear to be the same (with the exception of three files) as the files 24 he submitted with his first opposition. As described above, none of the video or audio 25 files submitted by Plaintiff are relevant to the Court’s determination of this motion 26 because they are not related to the underlying June 8, 2020 arrest. 27 Therefore, Plaintiff’s motion to address clerical errors is GRANTED IN PART as to 28 separately filing “Plaintiff’s Exhibits #3 in Support of Opposition to Defendant’s Motion for 1 Summary Judgment” and correcting the filing date in the docket for ECF No. 59, and the 2 remainder of Plaintiff’s motion is DENIED. 3 4. Plaintiff’s Request for Further Discovery 4 Plaintiff briefly states in his statement of undisputed facts that more discovery is 5 needed regarding certain facts. (ECF No. 53-2 at 2.) Plaintiff has repeatedly attempted to 6 extend the discovery deadline, which have been previously denied by the Court. (ECF 7 Nos. 29, 46.) Plaintiff has been warned that any additional filings related to reopening 8 discovery could result in dismissal of his case with prejudice. (ECF No. 51.) Plaintiff did 9 not meet the “good cause” standard for a modification of the scheduling order in his 10 previous requests, and nothing has changed. See Johnson v. Mammoth Recreations, 11 Inc., 975 F.2d 604, 609 (9th Cir. 1992). Therefore, Plaintiff’s request to reopen discovery 12 is denied. 13 5. Plaintiff’s Motion to Stay (ECF No. 55) 14 Finally, Plaintiff filed a motion to stay Defendants’ motion for summary judgment 15 pending resolution of Plaintiff’s motion to change venue. (ECF No. 55.) On February 13, 16 2025, the Court denied Plaintiff’s motion to change venue. 2/13/2025 Order. Therefore, 17 Plaintiff’s motion to stay is DENIED as moot. 18 B. 42 U.S.C. § 1983 Standards 19 42 U.S.C. § 1983 provides a cause of action for the deprivation of rights, 20 privileges, or immunities secured by the Constitution or laws of the United States by a 21 person acting “under color of any statute . . . .” Gomez v. Toledo, 446 U.S. 635, 638 22 (1980). Section 1983 claims must demonstrate the defendant (1) acted under color of 23 state law; and (2) caused a plaintiff to be deprived of a right secured by the Constitution 24 or laws of the United States. See Lindke v. Freed, 601 U.S. 187, 194 (2024). A 25 supervisor may not be held individually liable under § 1983 unless he is personally 26 involved in a constitutional deprivation or there exists a “sufficient causal connection” 27 between the supervisor’s wrongful conduct and the constitutional deprivation. Keates v. 28 Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018). 1 C. Claims Against Sacramento County Sheriff, Sacramento County, and Sacramento County District Attorney 2 3 1. Sacramento County Sheriff 4 Plaintiff brings claims against Sacramento County Sheriff Jones in his official 5 capacity. “[A] suit against a state official in his or her official capacity is not a suit against 6 the official but rather is a suit against the official’s office. As such, it is no different from a 7 suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) 8 (citation omitted); see Kentucky v. Graham, 473 U.S. 159, 166 (1985). If an individual is 9 sued in his official capacity as a municipal official and the municipal entity is also sued, 10 the claims against the individuals are duplicative and should be dismissed. Vance v. 11 County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996); see Johnson v. City of 12 Vallejo, 99 F.Supp.3d 1212, 1219 (E.D. Cal. 2015). 13 Defendants argue that all claims against the Sacramento County Sheriff should 14 be dismissed because the Sheriff is only sued in his official capacity and suits against 15 officials in their official capacity are essentially an action against the entity of which the 16 officer is an agent. Defs. MSJ at 4 (ECF No. 49-1). 17 Here, suing the Sacramento County Sheriff in his official capacity is effectively a 18 suit against the County of Sacramento. See Muller v. Sacramento County Sheriff Dept., 19 2006 WL 3437894, at *7-8 (E.D. Cal. Nov. 29, 2006). Because Plaintiff also brings 20 claims against the municipal entity (the County), Plaintiff’s claims against Sheriff Jones in 21 his official capacity should be dismissed as duplicative. See Will, 491 U.S. at 71; 22 Kentucky, 473 U.S. at 166. The Court also notes that the FAC does not raise any 23 specific allegations as to Sheriff Jones. See FAC. Defendants’ motion for summary 24 judgment as to the Sheriff should be GRANTED. 25 2. Sacramento County – Section 1983 Claims 26 Plaintiff also brings claims against Sacramento County. Under Monell v. 27 Department of Social Services of City of New York, 436 U.S. 658 (1978), “[a] 28 1 government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, 2 practice, or custom of the entity can be shown to be a moving force behind a violation of 3 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) 4 (citing Monell, 436 U.S. at 694). There is no respondeat superior liability under § 1983. 5 Monell, 436 U.S. at 691-94. A policy is a deliberate choice to follow a course of action 6 made by officials responsible for establishing final policy. Oviatt By and Through Waugh 7 v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992). A custom is a widespread practice that 8 is “so permanent and well-settled as to constitute a custom or usage with the force of 9 law.” Young v. City of Visalia, 687 F. Supp. 2d 1141, 1147 (E.D. Cal. 2009) (quoting City 10 of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Liability for an improper custom 11 may not be premised on isolated or sporadic incidents, but rather it must be founded on 12 practices of “sufficient duration, frequency and consistency that the conduct has become 13 a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 14 1996). After establishing one of the methods of liability, “a plaintiff must also show that 15 the circumstance was (1) the cause in fact and (2) the proximate cause of the 16 constitutional deprivation.” Id. 17 Defendants argue that all claims against the County must fail and should be 18 dismissed because Defendant McCune had probable cause to arrest Plaintiff so there 19 was no constitutional violation, and there is no evidence or facts demonstrating that a 20 policy or custom caused any alleged constitutional injury. Defs. MSJ at 4. Defendants 21 also argue that the County cannot be held liable for the acts of its employees. Id. at 12- 22 13. 23 Here, the County cannot be held liable under a respondeat superior theory on 24 Plaintiff’s § 1983 claims, see Monell, 436 U.S. at 691, and Plaintiff has offered no 25 evidence, arguments, or facts demonstrating that the County engaged in a pattern, 26 custom, or practice that deprived him of any rights. In addition, as described above, even 27 if the Sacramento County Sheriff’s Office had been adequately named as a separate 28 defendant in the FAC, the same analysis for the County would also apply to the Sheriff’s 1 Office. The Court separately analyzes the supervisory liability and intentional infliction of 2 emotional distress claims below. 3 3. Sacramento County District Attorney Schubert 4 Plaintiff brings claims against Sacramento County District Attorney Schubert in 5 her official capacity. Defendants argue that District Attorney Schubert in her official 6 capacity is immune from suit under the Eleventh Amendment and because she is 7 entitled to prosecutorial immunity. Defs. MSJ at 9, 11-12. Defendants state that the 8 District Attorney did not function as anything other than a state advocate and that the 9 FAC does not contain any facts that she did. Id. at 9. Further, Defendants also argue 10 that the District Attorney was not the prosecutor in Plaintiff’s criminal case. Id. 11 Prosecutors are afforded immunity from civil suits under the Eleventh Amendment 12 and based on prosecutorial immunity. The Eleventh Amendment provides immunity to 13 state agencies and state actors from suit in federal court for actions taken in their official 14 capacity. Robichequx v. Cnty. of Orange, 2024 WL 5001487, at *4 (C.D. Cal. Sept. 27, 15 2024) (citing Greenlaw v. County of Santa Clara, 125 F. App’x 809, 810 (9th Cir. 2005) 16 and Taylor v. Garcetti, 55 F. App’x 853, 854 (9th Cir. 2003)); see also Edelman v. 17 Jordan, 415 U.S. 651, 662-63 (1974). The Ninth Circuit has held that under California 18 law, a county district attorney acts as a state official when deciding whether to prosecute 19 an individual. Weiner v. San Diego Cnty., 210 F.3d 1025, 1030-31 (9th Cir. 2000). 20 Further, prosecutors are absolutely immune from civil suits for damages under 21 § 1983 which challenge activities related to the initiation and presentation of criminal 22 prosecutions. Imbler v. Pachtman, 424 U.S. 409, 424-28, 431 (1976). Determining 23 whether a prosecutor’s actions are immunized requires a functional analysis. The nature 24 of the challenged acts, not the motivation underlying them, determines whether absolute 25 immunity applies. Ashelman v. Pope, 793 F.2d 1072, 1076, 1078 (9th Cir. 1986) (en 26 banc). The prosecutor’s quasi-judicial functions, rather than administrative or 27 investigative functions, are absolutely immune. Thus, even charges of malicious 28 prosecution, falsification of evidence, coercion of perjured testimony and concealment of 1 exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See 2 Stevens v. Rifkin, 608 F. Supp. 710, 728 (N.D. Cal. 1984). 3 Here, the District Attorney in her official capacity is entitled to Eleventh 4 Amendment immunity from suit. As the District Attorney, Schubert was an official of the 5 state to the extent she decided whether to prosecute Plaintiff’s case, see Weiner, 210 6 F.3d at 1028, and thus entitled to Eleventh Amendment immunity. 7 Though the FAC does not make any specific allegations related to the District 8 Attorney and Plaintiff presents no evidence of the District Attorney’s involvement in 9 Plaintiff’s prosecution, even if such evidence had been presented, the District Attorney 10 would be entitled to prosecutorial immunity for her actions in bringing a criminal claim 11 against Plaintiff. The Court notes that the FAC also alleges that the judge in Plaintiff’s 12 criminal proceeding said that “Defendants lacked probable cause to bring the claims 13 pertaining to the criminal proceeding.” FAC at 9. Plaintiff’s allegations in his unverified 14 FAC cannot be considered as evidence at summary judgment, see Moran v, 447 F.3d at 15 759-60, and Plaintiff has provided no competent evidence that the state court made such 16 a finding. Regardless, even if Plaintiff presented evidence that the state court found the 17 prosecution lacked probable cause, the District Attorney would still be entitled to 18 prosecutorial immunity for her actions as a prosecutor to bring a criminal claim against 19 Plaintiff. 20 In conclusion, the District Attorney in her official capacity is entitled to both 21 Eleventh Amendment immunity and prosecutorial immunity. See Greenlaw, 125 F. App’x 22 at 810; Taylor, 55 F. App’x at 854. Defendants’ motion for summary judgment as to the 23 District Attorney should be GRANTED. 24 D. Fourth Amendment False Arrest Claim 25 The false arrest claim is brought against Deputy McCune, Sheriff Jones, and the 26 County. Because the Court has already found that the claims against Sheriff Jones 27 cannot proceed and the County is not liable under Monell, the Court focuses its analysis 28 of the false arrest claim as to Deputy McCune. 1 1. Legal Standards for Fourth Amendment Claims 2 Claims for wrongful arrest under Section 1983 are analyzed under the Fourth 3 Amendment’s prohibition against unreasonable seizures using the framework articulated 4 in Graham v. Connor, 490 U.S. 386 (1989). The constitutionality of a seizure turns on 5 whether “officers’ actions are ‘objectively reasonable’ in light of the facts and 6 circumstances confronting them.” Id. at 397. 7 Weighing heavily on the constitutionality of any arrest is “whether, at the moment 8 the arrest was made, the [officer] had probable cause to make it.” Beck v. Ohio, 379 U.S. 9 89, 91 (1964). Probable cause exists if the facts and circumstances within an officer’s 10 knowledge are “sufficient to warrant a prudent [person] in believing [an individual] had 11 committed or was committing an offense.” Id. Probable cause is a “fluid concept-turning 12 on the assessment of probabilities in particular factual contexts—not readily, or even 13 usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). 14 Courts should examine “the events leading up to the arrest, then decide whether these 15 historical facts, viewed from the standpoint of an objectively reasonable police officer, 16 amount to probable cause.” Maryland v Pringle, 540 U.S. 366, 371 (2003). The arresting 17 officer’s subjective intention is immaterial in judging whether his or her actions were 18 reasonable under the Fourth Amendment. Graham, 490 U.S. at 397. 19 In the Fourth Amendment context of a § 1983 action, the need to establish the 20 facts underlying the reasonableness of a seizure generally mean that probable cause is 21 a question for the jury. Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). “The 22 mere existence of video footage of the incident does not foreclose a genuine factual 23 dispute as to the reasonable inferences that can be drawn from that footage.” Vos v. City 24 of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018). Thus, the Ninth Circuit has long 25 held that, in the context of civil cases, summary judgment is appropriate only if “no 26 reasonable jury could find that the officers did or did not have probable cause to arrest.” 27 McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984). 28 / / / 1 2. Analysis 2 The Ninth Circuit has held that a police report indicating the vehicle was stolen 3 provides probable cause to believe the driver has stolen the vehicle or is knowingly 4 operating a stolen vehicle. Rohde v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir. 5 1998); Lipton v. United States, 348 F.2d 591, 594 (9th Cir. 1965) (holding a stolen 6 vehicle report is sufficient basis to arrest the driver); see also Herwick v. Budget Rent A 7 Car Sys. Inc., 2011 WL 13213607, at *6 (C.D. Cal. Mar. 8, 2011) (finding probable cause 8 to arrest plaintiff based on a police report). 9 Defendants argue that Plaintiff’s false arrest claim fails because Defendant 10 McCune had probable cause to arrest Plaintiff. Defs. MSJ at 5. In his opposition, Plaintiff 11 argues that no probable cause exists because his arrest was based on false information 12 that the vehicle was stolen, and a false report. Pl. Opp’n at 5. 13 Defendant McCune arrested Plaintiff after he received a “hit” from the LPR system 14 that the vehicle Plaintiff was driving was stolen. McCune Decl. ¶ 5. McCune confirmed 15 with dispatch that the vehicle was reported stolen, and that it was still stolen when he 16 pulled Plaintiff over. Id. ¶¶ 13-14. McCune has met his initial burden to demonstrate the 17 absence of a genuine issue of material fact. The burden shifts to Plaintiff to establish that 18 there is a genuine issue of material fact, and Plaintiff must tender evidence of specific 19 facts through affidavits or admissible discovery material, and may not rely on the 20 allegations in his pleadings. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. 21 Plaintiff has presented no evidence to dispute that McCune arrested Plaintiff 22 based on a report that the vehicle Plaintiff was driving was stolen. Plaintiff actually 23 concedes this fact and even includes the police report indicating that the vehicle was 24 stolen on June 3, 2020. See Pl. Opp’n at 5 & Exhs. at 32-33 (ECF No. 55). Though 25 Plaintiff argues that he did not steal the vehicle and the stolen vehicle report was a false 26 report, see Pl. Opp’n at 5, Plaintiff has presented no evidence that the report was false 27 or that McCune arrested Plaintiff despite knowing the report was false. Plaintiff also does 28 not dispute that McCune asked Plaintiff whether he had proof of vehicle ownership 1 paperwork inside the vehicle, and Plaintiff responded that he did not. McCune Decl. 2 ¶ 21. 3 It is therefore undisputed that the vehicle Plaintiff was driving at the time McCune 4 arrested Plaintiff was reported stolen and that McCune arrested Plaintiff based on this 5 report. Accordingly, no reasonable jury could find that McCune did not have probable 6 cause to arrest Plaintiff. See Rohde, 137 F.3d at 1144; Lipton, 348 F.2d at 594. 7 Therefore, Defendants’ motion for summary judgment on Plaintiff’s claim for false arrest 8 should be GRANTED. 9 E. Malicious Prosecution Claim 10 Plaintiff brings a malicious prosecution claim under § 1983 against all defendants. 11 Because the Court has already found that the claims against Sheriff Jones cannot 12 proceed, the County is not liable for § 1983 claims under Monell, and District Attorney 13 Schubert has prosecutorial and Eleventh Amendment immunity, the Court focuses its 14 analysis of the malicious prosecution claim as to Deputy McCune. 15 To claim malicious prosecution, a plaintiff must establish “the defendants 16 prosecuted h[im] with malice and without probable cause, and that they did so for the 17 purpose of denying h[im] equal protection or another specific constitutional right.” Lacey 18 v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012) (quoting Freeman v. City of Santa 19 Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)); see also Mills v. City of Covina, 921 F.3d 20 1161, 1169 (9th Cir. 2019) (noting federal courts rely on state common law for the 21 general elements of malicious prosecution). To state a claim for malicious prosecution 22 under California law, a plaintiff must show that the prior action “(1) was initiated by or at 23 the direction of the defendant and legally terminated in the plaintiff’s favor, (2) was 24 brought without probable cause, and (3) was initiated with malice.” Siebel v. Mittlesteadt, 25 41 Cal.4th 735, 740 (2007). 26 Defendants argue that Plaintiff’s claim for malicious prosecution against McCune 27 should fail because McCune had probable cause to arrest Plaintiff. Defs. MSJ at 10-11. 28 Usually the decision to file a criminal complaint will preclude liability for the police officer 1 who participated in the investigation or whose report initiated the proceeding, because 2 the decision is presumed to result from an independent decision of the prosecutor. 3 Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). If, however, a plaintiff 4 can show an officer applied improper pressure on the prosecutor, knowingly provided 5 misinformation, concealed exculpatory information, or otherwise engaged in wrongful 6 conduct that led to the legal proceeding, then the presumption of prosecutorial 7 independence may be rebutted. Id. at 1067-68. Only then can a malicious prosecution 8 claim proceed against the officer. See Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 9 2011) (stating that an officer may be liable for malicious prosecution if they wrongfully 10 caused the prosecution to occur). 11 As discussed above, Defendant McCune had probable cause to arrest Plaintiff. In 12 addition, Plaintiff has presented no evidence that McCune applied improper pressure to 13 the prosecutor, knowingly provided misinformation, concealed exculpatory information, 14 or otherwise engaged in wrongful conduct that led to the criminal proceedings. Also as 15 discussed above, Plaintiff may not rely on the allegations in his unverified FAC that the 16 judge at the criminal proceeding said that Defendants lacked probable cause to bring the 17 criminal case. See FAC at 9. Plaintiff must tender evidence of specific facts through 18 affidavits or admissible discovery material. See Fed. R. Civ. P. 56(c); Matsushita, 475 19 U.S. at 586 n.11. Therefore, Defendants’ motion for summary judgment on Plaintiff’s 20 malicious prosecution claim should be GRANTED. 21 F. Supervisory Liability Claim 22 Plaintiff’s supervisory liability claim for the failure to train was raised against the 23 “supervisory defendants,” which the Court construed to be Sheriff Jones, the County, 24 and District Attorney Schubert. Because the Court has already found that the claims 25 against Sheriff Jones cannot proceed and District Attorney Schubert has prosecutorial 26 and Eleventh Amendment immunity,5 the Court focuses its analysis of the supervisory 27 5 Even if the supervisory liability claim did proceed against Sheriff Jones and District 28 Attorney Schubert, summary judgment should be granted for Defendants Jones and 1 liability claim as to the County. 2 A municipality can be found liable for the actions of its agents where there is a 3 failure to train. Connick v. Thompson, 563 U.S. 51, 61 (2011); Hepner v. County of 4 Tulare, 2024 WL 922891, at *4 (E.D. Cal. Mar. 1, 2024). A municipality’s decision not to 5 train their employees about their legal duties to avoid violating citizens’ rights may rise to 6 the level of an official government policy. Connick, 563 U.S. at 61. “[T]he inadequacy of 7 police training may serve as the basis for § 1983 liability only where the failure to train 8 amounts to deliberate indifference to the rights of persons with whom the police come 9 into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). A plaintiff alleging a 10 policy of failure to train must show that (1) he was deprived of a constitutional right; 11 (2) the entity had a training policy that amounts to deliberate indifference to the 12 constitutional rights of the individuals its police officers are likely to come into contact 13 with, and (3) the constitutional injury would have been avoided had the county properly 14 trained its officers. Dillman v. Tuolumne, 2013 WL 1907379, at *14 (E.D. Cal. May 7, 15 2013) (citing Blankenhorn v. City of Orange, 485 F.3d 463, 485 (9th Cir. 2007)). In the 16 context of a failure to train claim, the Supreme Court has found that to show deliberate 17 indifference, the municipal actor must disregard a known or obvious consequence of his 18 action, which ordinarily requires that there be a pattern of similar constitutional violations 19 by untrained employees. Connick, 563 U.S. at 61-62. However, “in a narrow range of 20 circumstances, a pattern of similar violations might not be necessary to show deliberate 21 indifference.” Id. at 63 (citation and quotation marks omitted). 22 Summary judgment should be granted for the County on the supervisory liability 23 failure to train claim because there is a complete failure of proof. See Celotex Corp., 477 24 U.S. at 323. As described above, Deputy McCune had probable cause to arrest Plaintiff. 25 26 Schubert because Plaintiff does not present any evidence of their personal involvement in the underlying arrest, prosecution, or any failure to train. See Keates, 883 F.3d at 27 1242-43. Plaintiff does not present any evidence of any wrongful conduct by either supervisor, or any causal connection between the supervisor’s wrongful conduct and the 28 alleged constitutional deprivation. See id. 1 Plaintiff has not provided any evidence to create a genuine dispute of material fact as to 2 any element for a failure to train claim against the County. See Pl. Opp’n. In addition, 3 Plaintiff’s allegations in his unverified FAC cannot be considered as evidence at 4 summary judgment. See Moran v. Selig, 447 F.3d at 759-60. But even if Plaintiff’s FAC 5 had been verified and could be considered as evidence, the FAC’s allegations are 6 insufficient because Plaintiff has not sufficiently alleged any of the elements for a failure 7 to train claim. See FAC; Dillman, 2013 WL 1907379 at *14. No rational trier of fact could 8 find for Plaintiff on this claim against the County. 9 Thus, Defendants’ motion for summary judgment should be GRANTED on 10 Plaintiff’s supervisory liability claim. 11 G. Intentional Infliction of Emotional Distress Claim 12 Plaintiff brings an intentional infliction of emotional distress claim against all 13 defendants. Because the Court has already found that the claims against Sheriff Jones 14 cannot proceed and District Attorney Schubert has prosecutorial and Eleventh 15 Amendment immunity,6 the Court focuses its analysis of the intentional infliction of 16 emotional distress claim as to Deputy McCune and the County. 17 As an initial matter, Defendants argue that the Court should exercise 18 supplemental jurisdiction over Plaintiff’s California state law claim of intentional infliction 19 of emotional distress. Defs. MSJ at 13. The district court has discretion over whether to 20 exercise supplemental jurisdiction over state law claims even if all of the federal law 21 claims have been dismissed. Lacey, 693 F.3d at 940; see 28 U.S.C. § 1367(c)(3). The 22 decision to retain or decline jurisdiction must be made in light of “the objectives of 23 economy, convenience and fairness to the parties, and comity.” Trustees of Constr. 24 Indus. & Laborers Health & Welfare Trust v. Desert Valley Landscape & Maintenance, 25 6 Even if the intentional infliction of emotional distress claim did proceed against Sheriff 26 Jones and District Attorney Schubert, summary judgment should be granted for Defendants Jones and Schubert because Plaintiff does not present any evidence of any 27 conduct by these Defendants, let along evidence of outrageous or extreme conduct or their intent, which are required elements. See Argawal v. Johnson, 25 Cal.3d 932, 946 28 (1979). 1 Inc., 333 F.3d 923, 925 (9th Cir. 2003). Here, the Court exercises supplemental 2 jurisdiction over Plaintiff’s state law claim in the interest of judicial economy and the 3 convenience and fairness to the parties because Plaintiff’s intentional infliction of 4 emotional distress claim is based on the same nucleus of facts underlying the federal 5 law claims. See id. 6 To prevail on a claim of intentional infliction of emotional distress under California 7 law, a plaintiff must show: (1) outrageous conduct by the defendant; (2) intention to 8 cause or reckless disregard of the probability of causing emotional distress; (3) severe 9 emotional suffering; and (4) actual and proximate causation of the emotional distress. 10 Argawal, 25 Cal.3d at 946. Conduct is “outrageous” when it is “so extreme as to exceed 11 all bounds of that usually tolerated in a civilized community.” Davidson v. City of 12 Westminster, 32 Cal.3d 197, 209 (1983). The defendant’s conduct must be directed at, 13 or occur in the presence of, the plaintiff, and defendant must have been aware of the 14 plaintiff’s presence. Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001-02 15 (1993). 16 As discussed above, Deputy McCune had probable cause to arrest Plaintiff. The 17 burden then shifts to Plaintiff, who failed to provide any evidence that McCune’s actions 18 in arresting Plaintiff were “extreme” or “outrageous” conduct that exceeds all bounds 19 tolerated in a civilized community, or any evidence of McCune’s intent or reckless 20 disregard to cause emotional distress, which are required elements for an intentional 21 infliction of emotional distress claim. See Argawal, 25 Cal.3d at 946; Davidson, 32 22 Cal.3d at 209. There is no genuine dispute of material fact, and no rational trier of fact 23 could find for Plaintiff on this claim. Summary judgment should be granted to Deputy 24 McCune on this claim. 25 Turning to the claim against the County, Plaintiff is suing the County for the 26 actions of its employees. See Paternostro v. City of Lodi, 2021 WL 1985438, at *3 (E.D. 27 Cal. May 18, 2021). Under California Government Code § 815.2, a public entity may be 28 vicariously liable for the actions of its employee acting within the scope of his 1 employment if the action would give rise to a cause of action against the employee. Cal. 2 Gov. Code § 815.2(a); see Black v. City of Blythe, 562 F. Supp. 3d 820, 829 (C.D. Cal. 3 2022). Vicarious liability does not attach if the employee is immune. Cal. Gov. Code 4 § 815.2(b). Here, Plaintiff may raise his intentional infliction of emotional distress claim 5 against the County because Deputy McCune is not immune from potential liability for 6 intentional infliction of emotional distress. See Black, 562 F. Supp. 3d at 829; Hall v. City 7 of Fremont, 520 F. App’x 609, 612 (9th Cir. 2013) (unpublished) (holding the district 8 court erred when it found the city employee defendant immune from an intentional 9 infliction of emotional distress claim). 10 Because Plaintiff’s intentional infliction of emotional distress claim against the 11 County is based on Deputy McCune’s conduct, the County is also entitled to summary 12 judgment on this claim. There is no genuine dispute of material fact, and no rational trier 13 of fact could find for Plaintiff on this claim. 14 Therefore, Defendants’ motion for summary judgment should be GRANTED on 15 Plaintiff’s claim of intentional infliction of emotional distress. 16 H. Qualified Immunity 17 Qualified immunity protects government officials “from liability for civil damages 18 insofar as their conduct does not violate clearly established statutory or constitutional 19 rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 20 223, 231 (2009) (quotations omitted). This protection exists even if the officer’s actions 21 resulted from “‘a mistake of law, a mistake of fact, or a mistake based on mixed 22 questions of law and fact.’” Id. (quotations omitted). Determining whether officials are 23 owed qualified immunity involves two inquiries: (1) whether, taken in the light most 24 favorable to the party asserting the injury, the facts show the official’s conduct violated a 25 constitutional right; and (2) if so, whether the right was clearly established in light of the 26 specific context of the case. See id. at 236 (noting the two factors need not be 27 considered in sequence). The jury determines the factual question of whether a 28 constitutional right was violated, while the judge determines the legal question of 1 whether the right was clearly established. Tortu v. Las Vegas Metro. Police Dep’t, 556 2 F.3d 1075, 1085 (9th Cir. 2009); see also Torres v. City of Madera, 648 F.3d 1119, 1123 3 (9th Cir. 2011). 4 A right is “clearly established” when, “at the time of the challenged conduct, the 5 contours of a right are sufficiently clear that every reasonable official would have 6 understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 7 741 (2011) (quotations omitted). This is an objective standard, and “the defendant’s 8 subjective understanding of the constitutionality of his or her conduct is irrelevant.” 9 Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011). For a 10 constitutional right to be clearly established, “a court must define the right at issue with 11 specificity and not at a high level of generality,” Gordon v. Cnty. of Orange, 6 F.4th 961, 12 968 (9th Cir. 2021) (quotations omitted), and “existing precedent must have placed the 13 statutory or constitutional question beyond debate,” Foster v. City of Indio, 908 F.3d 14 1204, 1210 (9th Cir. 2018) (per curiam). However, the court need not identify an identical 15 prior action. Scott v. Cnty. of San Bernardino, 903 F.3d 943, 951 (9th Cir. 2018). 16 The plaintiff bears the burden of proving that the right allegedly violated was 17 clearly established at the time of the violation. Gordon, 6 F.4th at 969. However, the 18 court will “draw on [its] ‘full knowledge’ of relevant precedent rather than restricting [its] 19 review to cases identified by the plaintiff.” Id. 20 Defendants argue that Deputy McCune is entitled to qualified immunity. Defs. 21 MSJ at 7-9, 10. Because the Court found that there was no constitutional violation, the 22 Court will not address whether McCune is entitled to qualified immunity. 23 IV. CONCLUSION 24 In conclusion, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion to stay (ECF No. 55) is DENIED as moot; and 26 2. Plaintiff’s motion to correct clerical errors (ECF No. 63) is GRANTED IN 27 PART AND DENIED IN PART. The Clerk is directed to (a) correct the 28 docket entry to reflect September 6, 2024 as the filing date for ECF No. 59, 1 Plaintiffs Notice of Lodging video/audio files; (b) separately file “Plaintiff's 2 Exhibits #3 in Support of Opposition to Defendant’s Motion for Summary 3 Judgment,” which is currently filed as ECF No. 55 at pages 5-152, as a 4 separate docket entry with a filing date of August 28, 2024; and (c) remove 5 what is currently filed at ECF No. 55 at pages 5-152 from ECF No. 55. The 6 remainder of Plaintiff's motion to correct clerical errors is DENIED. 7 Further, based upon the findings above, it is RECOMMENDED that: 8 1. Defendants’ motion for summary judgment (ECF No. 49) be GRANTED; 9 2. Judgment be entered for Defendants; and 10 3. The Clerk of the Court be directed to CLOSE this case. 11 These findings and recommendations are submitted to the United States District 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 13 | 14 days after being served with these findings and recommendations, any party may file 14 | written objections with the Court and serve a copy on all parties. This document should 15 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 16 || reply to the objections shall be served on all parties and filed with the Court within 14 17 || days after service of the objections. Failure to file objections within the specified time 18 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 19 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 20 21 || Dated: February 18, 2025 Cc (i s 22 CHI SOO KIM 93 UNITED STATES MAGISTRATE JUDGE 24 || 5, iliy.1305.22 25 26 27 28 26