Wagda v. Town of Danville - Another CCSO Intimidation of a Witness and Litigant
Wagda v. Town of Danville
United States District Court, N.D. California
October 24, 2016
DONALD CLOYCE WAGDA, Plaintiff,
v.
TOWN OF DANVILLE, et al., Defendants.
v.
TOWN OF DANVILLE, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART COUNTY DEFENDANTS' MOTION TO DISMISS; GRANTING STATE DEFENDANTS' MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION TO CONVERT Re: Dkt. Nos. 51, 53, 67
MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE
Before the Court are two motions to dismiss plaintiff Donald Cloyce Wagda's ("Wagda") First Amended Complaint, the first said motion, filed April 12, 2016, by defendants Town of Danville ("Town"), County of Contra Costa ("County"), David O. Livingston ("Livingston"), Steve Simpkins ("Simpkins"), Mike Jimenez ("Jimenez"), Emily Neabeack ("Neabeack"), Tom Rossberg ("Rossberg"), and Steven Stapleton ("Stapleton") (collectively, "County defendants"), [1]and the second, filed May 9, 2016, by defendants Edmund G. Brown, Jr., and Kamala D. Harris (collectively, "State defendants"). Both motions are brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.Having read and considered the papers filed in support of and in opposition to the motions, the Court rules as follows.
BACKGROUND [2]
A. The Parties
Wagda is an attorney who, at all relevant times, has been a resident of Town, which, in turn, is located in County.
Livingston is the County Sheriff and is sued solely in his official capacity. Simpkins is the Town Chief of Police and is sued solely in his official capacity. Jimenez is a police sergeant employed by Town and County and is sued in his individual capacity. Neabeack, Rossberg, and Stapleton are police officers employed by Town and County and are sued in their individual capacities.[3]
Edmund G. Brown, Jr., is the Governor of the State of California ("Governor Brown"), and Kamala D. Harris is the Attorney General of the State of California ("Attorney General Harris"). Both said defendants are sued solely in their official capacities.
B. The Events
On August 16, 2014, in anticipation of the passage of Proposition 47 "("Prop 47"), Wagda formed a corporation to provide legal services to individuals expected to become eligible to reduce certain felony convictions to misdemeanors. (See id. ¶ 21.)
On October 15, 2014, at the Town police station, [4] Wagda was arrested for driving under the influence ("DUI"), pursuant to § 23152(f) of the California Vehicle Code ("Vehicle Code"), [5] and for being under the influence of a controlled substance, pursuant to § 11550 of the California Health & Safety Code ("Health & Safety Code") (the "October arrest"). (See id. ¶ 23.) According to Wagda, Jimenez and Neabeack, prior to his arrest, interrogated him "extensive[ly], " notwithstanding repeated invocations of his right to remain silent and an invocation of his right to counsel. (See id. ¶¶ 24, 26-28.) Additionally, Wagda alleges, Jimenez "expressed extreme moral disapproval with [his] professional and other First Amendment activity in connection with Prop 47" (see id. ¶ 31; see also id. ¶¶ 33-36), "revealing a deep personal animus toward [him]" (see id. ¶ 34). Wagda further alleges that Jimenez and Neabeack, motivated by such animus, disclosed to the State Bar of California ("State Bar") police reports relating to his October arrest (see id. ¶ 37) and, rather than exercising their discretion to cite and release him at the police station, instead booked him into jail at the Martinez Detention Facility ("MDF") (see id. ¶ 38), where he was subjected to misconduct including threats of extended confinement (see id. ¶¶ 55-56), placement in solitary confinement (see id. ¶ 57), coercion in answering booking questions (see id. ¶ 60), denial of lunch (see id. ¶ 61), forced signing of a statement regarding jailhouse rules (see id. ¶ 62), and delayed release (see id. ¶ 63).
Subsequently, on December 4, 2004, the Contra Costa County District Attorney's Office ("D.A.'s Office") charged Wagda with a drug-related DUI, pursuant to § 23152(e) of the Vehicle Code, and with being under the influence of a controlled substance, pursuant to § 11550(a) of the Health & Safety Code. (See id. ¶ 64.) On or before December 8, 2014, the D.A.'s Office provided Wagda with laboratory results showing his blood tested "negative for alcohol and positive for certain CNS [central nervous system] stimulants." (See id. ¶ 65.)
Approximately two weeks later, on December 22, 2014, while driving in Danville, Wagda was again arrested, on this occasion for driving under the influence of drugs, pursuant to § 23152(e) (the "December arrest"). (See id. ¶ 83.) According to Wagda, Rossberg initially pulled him over for speeding (see id. ¶ 68) on a section of roadway that, under state law, constituted a speed trap (see id. ¶ 66) and, after learning of his prior DUI arrest, questioned him about such arrest, notwithstanding his renewed invocation of his right to remain silent and explanation that he had "an open court case" (see id. ¶¶ 69, 71; see also id. ¶¶ 72-73). Wagda further alleges that, after Stapleton arrived on the scene, Rossberg took Wagda's pulse without his consent while Stapleton questioned him about the October arrest "with the intent to drive up [his] heart rate" (see id. ¶ 80-81), and that Rossberg arrested him after he declined to perform field sobriety tests ("FSTs") (see Id. ¶ 83). Thereafter, Stapleton transported Wagda to the police station. (See id. ¶ 87.)
Subsequently, Wagda alleges, Rossberg, rather than citing and releasing him at the police station, booked him into MDF because of his refusal to answer questions and consent to a blood draw (see id. ¶¶ 90, 92, 94), and, in support of a search warrant for his blood, executed a "false and misleading" affidavit (see id. 30:24) containing "material misrepresentations and omissions" (see id. ¶ 96) with respect to his speed, pulse rate measurements, and ability to make decisions and answer questions (see id. ¶¶ 97-103) (the "affidavit"). In addition, Wagda alleges, Rossberg used his statements about the October arrest, his refusal to answer questions about such arrest, and his refusal to consent to the blood draw and FSTs both in the affidavit (see id. ¶¶ 74, 106) and in a police report the D.A.'s Office "relied upon . . . in its decision to file charges in connection with the December [a]rrest" (see id. ¶¶ 75, 106). Wagda further alleges that Rossberg and Jimenez, both motivated by retaliation, made disclosures to the State Bar regarding both the October and December arrests (see id. ¶ 107) and that Rossberg also "initiated" two Department of Motor Vehicles ("DMV") proceedings against him (see id. ¶ 108), namely, an "APS proceeding" (see id. ¶ 109) and a "Priority Re-Examination" (see Id. ¶¶ 110-112).
On March 12, 2015, the D.A.'s Office charged Wagda with a drug-related DUI, pursuant to § 23152(e), and being under the influence of a controlled substance, pursuant to § 11550(a). (See id. ¶ 119.) That same day, the D.A.'s Office also provided Wagda with laboratory results showing his blood tested "negative for alcohol and positive for CNS stimulant." (See id.)
On October 8, 2015, pursuant to a "global plea agreement, " Wagda, in connection with the October arrest, pleaded "no contest" to one count of reckless driving involving alcohol, pursuant to § 23103 of the Vehicle Code, [6] at which time all pending charges stemming from both arrests were dismissed. (See id. ¶ 120.)
Subsequently, on October 25, 2015, while Wagda was driving to a supermarket, "an SUV marked Contra Costa County Sheriff" followed him; waited in the parking lot while he went inside; and, when he returned to his car, "pulled around and confronted [him], " at which time the "officer" inside "stared [him] down." (See id. ¶ 122.)
C. Wagda's Claims
Based on the above allegations, Wagda asserts in the FAC seventeen claims: (1) a federal claim under 42 U.S.C. § 1983 for violation of his First Amendment rights in connection with the October arrest ("First Claim") (id. ¶¶ 124-127); (2) a federal claim under § 1983 for violation of his Fourteenth Amendment rights in connection with the October arrest ("Second Claim") (id. ¶¶ 128-132); (3) a federal claim under § 1983 for violation of his Fourth Amendment rights in connection with the October arrest ("Third Claim") (id. ¶¶ 133-137); (4) a federal claim under § 1983 for violation of his First Amendment rights in connection with the December arrest ("Fourth Claim") (id. ¶¶ 138- 141); (5) a federal claim under § 1983 for violation of his Fourth Amendment rights in connection with the December arrest ("Fifth Claim") (id. ¶¶ 142-146); (6) a federal claim under § 1983 for violation of his Fifth Amendment rights in connection with both the October and December arrests/prosecutions ("Sixth Claim") (id. ¶¶ 147-150); (7) a federal claim under § 1983 for violation of his Sixth Amendment rights in connection with the October arrest/prosecution ("Seventh Claim") (id. ¶¶ 151-154); (8) a federal claim under § 1983 for violation of his Fourteenth Amendment rights in connection with the December arrest ("Eighth Claim") (id. ¶¶ 155-158); (9) a federal claim under § 1983 for violation of the Doctrine of Unconstitutional Conditions ("Ninth Claim") (id. ¶¶ 159-162); (10) a federal claim under § 1983 for violation of "civil rights" based on municipal policies, customs, and/or practices ("Tenth Claim") (id. ¶¶ 163-166); (11) a state claim for false arrest ("Eleventh Claim") (id. ¶¶ 167-170); (12) a state claim for false imprisonment ("Twelfth Claim") (id. ¶¶ 171-174); (13) a state claim for invasion of privacy ("Thirteenth Claim") (id. ¶¶ 175-182); (14) a state claim for negligence ("Fourteenth Claim") (id. ¶¶ 183-187); (15) a state claim for violation of civil rights under California Civil Code §52.1(b) based on searches and seizures in connection with the October and December arrests ("Fifteenth Claim") (id. ¶¶ 188-193); (16) a state claim for violation of civil rights under California Civil Code §52.1(b) based on a municipal pattern, practice, or policy ("Sixteenth Claim") (id. ¶¶ 194-198); and (17) a federal claim under 28 U.S.C. § 2201 for declaratory and injunctive relief based on enforcement of § 11550 of the Health & Safety Code and a "continuing pattern" of depriving "citizens of Town and County" of their constitutional rights (see FAC ¶ 200) ("Seventeenth Claim") (id. ¶¶ 199-203). By their motion to dismiss, County defendants seek an order dismissing as to each of them "the majority of claims asserted." (SeeCounty Reply at 1.) By their motion to dismiss, State defendants seek an order dismissing all claims asserted against them.
LEGAL STANDARD
Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” See id. Nonetheless, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” See id. (internal quotation, citation, and alteration omitted).
In analyzing a motion to dismiss, a district court must accept as true all material factual allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).[7] “To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted).
DISCUSSION
As discussed below, County defendants challenge Wagda's First through Eighth, Tenth, Thirteenth, and Seventeenth Claims.[8] State defendants challenge Wagda's Seventeenth Claim, the sole claim Wagda brings against them. The Court addresses each challenged claim in turn.[9]
A. § 1983 Claims Arising Out of Wagda's October Arrest
As noted, Wagda's First through Third Claims arise out of the October arrest. County defendants contend the various acts alleged in support thereof do not establish a § 1983 claim against either Jimenez or Neabeack.
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
"An officer's liability under section 1983 is predicated on his integral participation in the alleged violation."Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (internal quotation and citation omitted). "Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability." Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). Rather, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677.
1. First Claim: "Violation of First Amendment Rights-October Arrest- 42 U.S.C. § 1983"
In his First Claim, Wagda alleges Jimenez and Neabeack violated his First Amendment rights by depriving him of his "right to freedom of speech including, without limitation, freedom of thought, freedom from compelled speech, freedom from compelled listening, freedom from a chilling effect on speech, the right to petition the government for a redress of grievances and the right to be free of police action motivated by retaliatory animus." (FAC ¶ 125.) Based on said allegation, Wagda brings eleven separate subclaims.
a. Interrogating Wagda (FAC ¶ 125(a))
In his FAC, Wagda alleges Jimenez and Neabeack unlawfully interrogated him, "including systematically interrupting and interfering with his speech asserting Fifth Amendment rights" (FAC ¶ 125(a)), which, Wagda alleges, has "a chilling effect upon [his] future speech asserting his Fifth Amendment rights during police detentions" (id. ¶ 29). In his opposition, however, Wagda states only that the above-referenced interrogation violated his "Fifth, Sixth, and Fourteenth Amendment Rights." (See Pl.'s Opp'n to County MTD at 6.) Wagda does not argue, let only cite any authority to support a finding, and the Court is aware of none, that the above-referenced conduct would constitute a violation of the First Amendment. Under the circumstances, it appears that Wagda is no longer relying on such conduct to support his First Amendment claim.
Wagda alleges defendants "[b]erat[ed] and sham[ed]" him regarding his "professional and other First Amendment activity in connection with Prop 47 and other matters of public concern" and "prescribed] what shall be orthodox regarding such matters." (FAC ¶ 125(b).) In particular, Wagda asserts, Jimenez "expressed extreme moral disapproval" with such activities and "sharply condemned the content and viewpoints of [ ] Wagda's political speech." (See id ¶ 31; see also id ¶¶ 33-36.)
Such "[b]erating" and "shaming" (see id ¶ 125(b)) is not, however, cognizable as a First Amendment violation. See, e.g., Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998) (holding "harsh words" not sufficient to support First Amendment claim; explaining "[i]t would be the height of irony . . . if mere speech, in response to speech, could constitute a First Amendment violation"). Further, as to Neabeack, Wagda's claim fails for the additional reason that he does not allege any facts showing Neabeack's participation or involvement in such alleged misconduct. See Blankenhorn, 485 F.3d at 481 n.12.
c. Booking Wagda into MDF (FAC ¶ 125(c))
Wagda alleges Jimenez and Neabeack, in retaliation for his First Amendment activity, "book[ed] [him] into MDF instead of citing and releasing him at the police station." (FAC ¶ 125(c); see also id ¶ 38.) In their reply, County defendants, for purposes of the instant motion, concede such booking "can be a basis" for a § 1983 First Amendment claim. (See County Reply at 4:2-3.)
d. Disclosing October arrest to State Bar (FAC ¶ 125(d))
Wagda alleges Jimenez and Neabeack, in retaliation for his First Amendment activity, disclosed to the State Bar information regarding his October arrest. (See FAC ¶¶ 37, 125(d).) County defendants contend, inter alia, such reporting does not constitute a retaliatory action and that Wagda has not alleged any harm or chilling effect resulting from such disclosure.
"To bring a First Amendment retaliation claim, the plaintiff must allege that (1) [he] engaged in constitutionally protected activity; (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant's conduct." Arizona Students' Ass'n v. Arizona Board of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (internal quotation and citation omitted). The "chill" test is "generic and objective"; "[w]hether [plaintiff] himself was, or would have been, chilled is not the test." O'Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016).
Although, under certain circumstances, reporting a professional to an organization responsible for discipline may well be cognizable as a retaliatory action, the facts alleged here are insufficient to show the disclosure at issue would have the requisite chilling effect, given the lack of any allegations as to what consequences, if any, ordinarily would be expected to occur from such a report.[10]
e. Events occurring at MDF (FAC ¶ 125(e)-(k))
The FAC contains no allegations indicating Jimenez or Neabeack had any involvement in the above-referenced events, all of which occurred at MDF. Rather, the FAC identifies various "Doe" defendants in connection with such events. (See FAC ¶¶ 51-63, 125(e)-(k).) Consequently, the FAC fails to state a claim against Jimenez and Neabeack with respect to such events. See Blankenhorn, 485 F.3d at 481 n.12.
f. Conclusion
With respect to Wagda's First Claim, for the reasons stated above, subparts (a), (b), and (d) are DISMISSED in their entirety, subparts (e)-(k) are DISMISSED with respect to defendants Jimenez and Neabeack, and, with the exception of subpart (b), Wagda is granted leave to amend.[11] See Fed.R.Civ.P. 15(a)(2) (permitting amendment of complaint with leave of court; providing leave should be afforded "when justice so requires"); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 2004) (noting Federal Rule of Civil Procedure 15(a)'s "direction that it is to be applied liberally in favor of amendments"). As to subpart (b), leave to amend is denied for the reason that, as a matter of law, berating and shaming are not cognizable as First Amendment violations and, thus, amendment of said subpart would be futile. See Janicki Logging Co., 42 F.3d at 566 (holding leave to amend need not be granted where amendment of complaint would "constitute[] an exercise in futility") (internal quotation and citation omitted).
2. Second Claim: "Violation of Fourteenth Amendment Rights-October Arrest-42 U.S.C. § 1983"
In his Second Claim, Wagda alleges Jimenez and Neabeack violated his Fourteenth Amendment rights by depriving him of the "right not to be deprived of personal liberty or property without due process of law, the right not to be punished without an adjudication of guilt, the right to be free of arbitrary, capricious, conscience-shocking and/or improperly motivated action of the government, and the right to equal protection under the laws." (FAC ¶ 129.) Based on said allegation, Wagda brings twelve separate subclaims.
a. Interrogating Wagda (FAC ¶ 129(a))
Wagda alleges Jimenez and Neabeack interrogated him in violation of his Fifth Amendment rights against self-incrimination (see id ¶ 129(a)) and that their interrogation techniques "shock the conscience and are arbitrary, capricious, and offensive to a civilized system of justice" (id ¶¶ 25, 28). In particular, he alleges that: (1) prior to his arrest, despite repeatedly invoking his right to remain silent, Jimenez and Neabeack "systematically interrupted, " "ignored, " and/or "further aggressively] questioned]" him (see id ¶ 24); and (2) after his arrest, despite reasserting his right to remain silent and invoking his right to counsel, Jimenez continued to question him (see id ¶¶ 26-28), "at least partially" in Neabeack's presence (see id ¶ 28), and Jimenez "misleadingly assured" him that they were "talking off the record" (see id).
While claims for coercive interrogation can be brought under the Fourteenth Amendment as substantive due process claims, the standard for showing a substantive due process violation is "quite demanding." See Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009) (noting Supreme Court has "referred] to police torture or other abuse as actionable under the Fourteenth Amendment") (internal quotation and citation omitted). In particular, a substantive due process claim is "cognizable only if the alleged abuse of power shocks the conscience and violates the decencies of civilized conduct." Id (internal quotation and citation omitted). For "abusive executive action, " which includes police conduct, "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." County of Sacramento v. Lewis, 523 U.S. 833, 846-47, 849 (1998) (defining "arbitrary" as "conscience shocking" and explaining that "conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level") (internal quotation and citation omitted).
Wagda's allegations of persistent questioning, punctuated, when he invoked his rights, by unspecified "verbal interruption[s], " "audible gasp[s], " and an "audible sigh" (see FAC ¶ 24), and one assurance of being off the record do not meet the demanding standard for a substantive due process claim. Compare Stoot, 582 F.3d at 928 (holding improper promises of leniency and threats of heightened punishment did not rise to level of Fourteenth Amendment violation), with Martinez v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003) (holding allegations that officer "brutally and incessantly questioned" suspect with multiple gunshot wounds, interfered with medical treatment while suspect was screaming in pain, and continued questioning after suspect pleaded with him to stop sufficient to support due process claim), and Cooper v. Dupnik, 963 F.3d 1220, 1248-50 (9th Cir. 1992) (holding conduct shocked conscience where police coerced statements from suspect by "hours of mistreatment and . . . sophisticated psychological torture, " in plan to keep suspect from testifying in own defense at trial and to curtail his right to present insanity defense), overruled on other grounds by Chavez v. Martinez, 538 U.S. 760, 773 (2003).
b. Berating and shaming Wagda (FAC ¶ 129(b))
Wadga alleges his claim that defendants "berat[ed] and sham[ed]" him and "prescribed] what shall be orthodox" states a Fourteenth Amendment violation. (See FAC ¶ 129(b).) As with his First Amendment claim based thereon, see supra part A.1 .b., Wagda's Fourteenth Amendment claim fails because he has not shown such conduct constitutes a cognizable wrong under § 1983. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (noting "[v]erbal harassment or abuse . . . is not sufficient to state a constitutional deprivation" under § 1983) (internal quotation and citation omitted); see also Stoot, 582 F.3d at 928 (requiring, for substantive due process violation, conduct that "shocks the conscience") (internal quotation and citation omitted). Lastly, as discussed earlier, Wagda's claim fails as to Neabeack for the additional reason that he does not allege her participation or involvement in such conduct.
c. Booking Wagda into MDF (FAC ¶ 129(c))
In support of his Fourteenth Amendment claim, Wagda again relies on his allegations that Jimenez and Neabeack chose to book him into jail rather than cite and release him. (See FAC ¶¶ 38, 129(c); see also supra part A.1.c.) Such allegations, however, do not meet the standard for a substantive due process violation, particularly given Wagda's allegation that said defendants had the "statutory discretion" to book him. (See FAC ¶ 38; see also Stoot, 582 F.3d at 928.)
d. Disclosing October arrest to State Bar (FAC ¶ 129(d))
In support of his Fourteenth Amendment claim, Wagda also relies on his above-referenced allegations regarding the disclosure of his arrest to the State Bar. (See FAC ¶¶ 37, 129(d); see also supra part A.1 .d.) Such allegations do not meet the standard for a substantive due process violation. See Stoot, 582 F.3d at 928.
e. Targeting enforcement of drug laws (FAC ¶ 129(e))
Wagda alleges defendants "[selectively and pretextually targeted] enforcement of the drug laws" against him due to their "perception of him as an addict." (FAC ¶ 129(e).) In particular, he alleges Jimenez manifested such a perception by saying "[y]ou've got a drug problem" (see id ¶ 40) and made "comments suggesting that Town, County, and he engage in a custom, pattern and practice of targeting enforcement of facially neutral drug laws at people perceived to [be] addicted to controlled substances, as a pretext for punishing such people for property crimes they are assumed to be committing, but for which the police do not have probable cause or reasonable suspicion" (see id ¶ 41) (emphasis omitted). Wagda alleges such conduct deprived him of equal protection. (See id ¶ 42.)[12]
To state an equal-protection claim under § 1983, a plaintiff must show the defendant "acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (internal quotation and citation omitted). Selective prosecution claims are judged "according to ordinary equal protection standards, " under which the plaintiff has the burden of showing the government's selective enforcement: (1) had a discriminatory effect; and (2) was motivated by a discriminatory purpose. Wayte v. United States, 470 U.S. 598, 608 (1985). The decision whether to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." Id. (internal quotation and citation omitted).
Here, the FAC does not allege membership in a protected class. Although the FAC asserts perceived drug addicts "may . . . represent a suspect class entitled to heightened scrutiny" (FAC ¶ 42), [13] the authority is to the contrary. See, e.g., Ball v. Massanari, 254 F.3d 817, 824 (9th Cir. 2001) (holding alcoholics are "not . . . a suspect, or a quasi-suspect class for purposes of equal protection analysis").
In any event, Wagda has failed to show the requisite discriminatory motive. Nothing in the FAC supports Wagda's allegation that Jimenez, or any other defendant, targeted him for enforcement of drug laws because he was perceived as a drug addict, rather than for his Prop 47 activities. (See, e.g., FAC ¶¶ 37-38.) Indeed, Wagda is not even the type of drug user he alleges defendants are targeting, i.e., people who need to commit property crimes to support their addiction. (See id. ¶ 33 (alleging Jimenez's knowledge of Wagda's profession); ¶ 41 (quoting comments by Jimenez about going after "junkies on the street, " as opposed to "good people" or "high end" people, because "[i]t's the junkies on the street that are causing most of the problems") (emphasis omitted).)
f. Events occurring at MDF (FAC ¶ 129(f)-(1))
Wagda's allegations as to events occurring at MDF are similar to those set forth in his First Claim. (See FAC ¶ 129(f)-(1); see also ¶ 125(e)-(k).) As discussed above, the FAC fails to state a claim against Jimenez and Neabeack with respect to such events, because it does not allege any facts showing their participation or involvement therein. See Blankenhorn, 485 F.3d at 481 n.12.
g. Conclusion
With respect to Wagda's Second Claim, for the reasons stated above, subparts (a)-(e) are DISMISSED in their entirety, subparts (f)-(1) are DISMISSED with respect to defendants Jimenez and Neabeack, and, with the exception of subpart (b), Wagda is granted leave to amend.[14] As to subpart (b), leave to amend is denied for the reason that, as a matter of law, berating and shaming are not cognizable wrongs under § 1983 and, thus, amendment of said subpart would be futile. See Janicki Logging Co., 42 F.3d at 566.
3. Third Claim: "Violation of Fourth Amendment Rights-October Arrest-42 U.S.C. § 1983"
In his Third Claim, Wagda alleges Jimenez and Neabeack violated his Fourth Amendment rights by depriving him of his "right to be free of unreasonable searches and seizures, unlawful imprisonment and unreasonable force." (FAC ¶ 134.) Based on said allegation, Wagda brings four separate subclaims.
a. Booking Wagda into MDF (FAC ¶ 134(a))
In support of his Fourth Amendment claim, Wagda again relies on his retaliatory-booking allegations against Jimenez and Neabeack. (See id. ¶¶ 38, 134(a).) As noted above, County defendants, for purposes of the instant motion, have conceded said allegations state a claim under the First Amendment. As County defendants have not addressed the sufficiency of said allegations to support a claim under the Fourth Amendment, the Court does not further address such additional claim herein.
b. Events occurring at MDF (FAC ¶ 134(b)-(d))
In support of his Fourth Amendment claim, Wagda relies on allegations as to essentially the same events at MDF (see id. ¶ 134(b)-(d)) as those alleged in support of his First Claim (see id. ¶ 125(g)-(h)) and Second Claim (see id. ¶ 129 (h)-(i), (1)). As discussed above, the FAC fails to state any claim against Jimenez and Neabeack based on such events, in that there is no allegation supporting their participation or involvement therein. See Blankenhorn, 485 F.3d at 481 n.12.
c. Conclusion
With respect to Wagda's Third Claim, for the reasons stated above, defendants Jimenez and Neabeack are DISMISSED as to subparts (b)-(d), and Wagda is granted leave to amend said subparts.
B. § 1983 Claims Arising Out of Wagda's December Arrest
As noted, Wadga's Fourth through Eighth Claims arise out of the December arrest. County defendants contend all such claims should be dismissed, with the exception of the Fifth Claim, which "should be limited." (See County MTD at 11.)
The Court first addresses County defendants' challenges to the inclusion of certain defendants in the above-referenced claims.
1. Defendants Jimenez, Neabeack, and Stapleton
At the outset, County defendants contend Wagda has failed to allege any facts showing Jimenez and Neabeack "participat[ed] . . . in any constitutional violations relating to the December . . . arrest" and thus should be dismissed from the "December arrest Section 1983 claims" in their entirety. (See County MTD at 11.) Similarly, County defendants contend Stapleton should be dismissed from the Fourth, Sixth, Seventh, and Eighth Claims.
a. Jimenez
As to the Fourth through Eighth Claims, with the exception of the subparts based on alleged retaliatory disclosure (see FAC ¶¶ 139(b), 143(f)), the FAC alleges only that Jimenez was the "immediate supervisor in connection with all events occurring in the geographical area of Town" (see id. ¶ 11) and that, "[i]n the course of [Wagda's] detention and arrest, " Rossberg "communicated with" him by radio (see id. ¶ 87). Such general allegations are insufficient to plead Jimenez's participation or involvement in any alleged wrongdoing. See Blankenhorn, 485 F.3d at 481 n.12; Hansen, 885 F.3d at 646 (holding supervisor may be held liable under § 1983 based on personal involvement in constitutional deprivation or "a sufficient causal connection" between supervisor's wrongful conduct and constitutional deprivation; further holding "vague allegation" that police chief was involved in "conspiracy to deprive [plaintiff] of her rights" was inadequate for supervisory liability).
With the exception of a single subpart based on Neabeack's alleged failure to communicate Wagda's October assertion of his right to counsel (see FAC ¶ 148(d); see also id. ¶ 27), the FAC alleges only that Rossberg "communicated with" Neabeack by radio and that said defendant was "present at the scene of the arrest at or about the time thereof." (See id. ¶ 87.) Such general allegations do not suffice to plead Neabeack's participation or involvement in any alleged wrongdoing other than the above-referenced failure to communicate. See Blankenhorn, 485 F.3d at 481 n.12.
c. Stapleton
With the exception of the subpart based on Stapleton's involvement in taking Wagda's pulse (see FAC ¶ 143(c)), the FAC's allegations as to Stapleton, namely, that Rossberg "communicated with" him by radio and that he was present at the scene of the arrest (see id. ¶ 87) are, as discussed above, too general to plead Stapleton's "integral participation" in any alleged violation. See Blankenhorn, 485 F.3d at 481 n.12 (internal quotation and citation omitted).
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Pete BennettFebruary 08, 2017Arson, CIA, City of Walnut Creek, Department of Justice, Domestic Terrorism, Driscoll, DU Rounds, Iraqi Freedom, Kinder Morgan, Mark Peterson, Murder, NCIS, sniper, The Sniper Files, The Terrorism Files
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By BRUCE GERSTMAN | Bay Area News Group
PUBLISHED: | UPDATED:
North of Baghdad, in a warehouse converted into a detention center, George Driscoll stood in front of a man he considered a terrorist.
“What are you thinking right now?” Driscoll, a U.S. Navy reserve commander, asked the man through an interpreter.
“I’m wondering how I can get that pen out of your hand and drive it into your eye,” the man replied. As he recalled one of the more chilling interrogations he had supervised in Iraq, Driscoll sat in a quiet law library in Martinez.
He quietly returned to his Walnut Creek home in April after serving as chief of interrogations operations for the U.S. military in Iraq.
The Multi National Force called him to duty in May 2006 to supervise more than 300 U.S. military and civilian interrogators in American detention centers in Iraq.
He received the Bronze Star for his work drafting and implementing a new American detention and interrogation policy for Gen. David Petraeus, the U.S. commander in Iraq, and worked with local Iraqi police and military officers whose background often included torture as a standard law enforcement procedure.
Today he offers a view from an unapologetically pro-American perspective into an interrogation program that has borne past criticism of detainee treatment. After nearly two decades working in intelligence and military law enforcement, this was only one stint among dozens of intelligence-gathering and anti-terrorist missions he has led.
He doesn’t talk much about them, only smiling and saying, “That’s classified.”
He will say that military interrogators under his command in Iraq acquired information to stop a plane hijacking that targeted America and foiled several assassination plots.
“I can’t give you the specifics or the names,” he said.
Driscoll joined the Navy reserves as an officer in 1988 and entered the Naval Criminal Investigative Service. As a member of NCIS, he has traveled to every continent except Antarctica on anti-terrorist and intelligence-gathering missions.
Stories shared by Driscoll and detailed in military documents tell how he traveled to each of the 21 American-led detention centers in Iraq, sometimes by helicopter, other times on land. His convoy was attacked twice.
Driscoll is a true believer in the U.S. presence in Iraq. He sticks to his message: Americans treat detainees well and the local government is building a justice system with great potential.
“We want to establish a system where someone is treated humanely, which was foreign to these folks under Saddam,” he said.
Driscoll insists on using the term “detainee” rather than prisoner. He says the United States is not fighting a war in Iraq, but building a nation. He says the media has given “interrogation” a bad name that it does not deserve.
“The reports in the press have talked about interrogation techniques being inhumane,” he said. “So it seems to me that’s what the pubic hears about.”
Driscoll said that detainees are treated so well that some feel duped by insurgent leaders who have painted a different picture of U.S. troops.
“The success of interrogations is that they’re shocked that we’re so nice,” Driscoll said. “They think, ‘I’ve been misled. Americans are not the devil.'”
Eliminating abuse
During his visits last year to U.S. military detention centers, Driscoll said he witnessed no interrogations like those detailed in reports from 2003 and 2004 Amnesty International, the American Civil Liberties Union and Human Rights Watch.
Those organizations obtained military documents and spoke with former detainees who said that interrogators beat them, used electrical charges and poured hydrogen peroxide into open wounds, among more than a dozen other forms of abuse.
An ACLU analysis of 44 detainee deaths in 2003 and 2004 in Iraq found that 39 were homicides.
ACLU staff attorney Jameel Jaffer said the current state of detainee treatment is unclear because it takes two to three years to obtain reports and information.
Human Rights Watch senior counterterrorism counsel Jennifer Deskal said recent statements by Petraeus that the military will not tolerate abuse shows that changes are coming from the top.
She said her organization believes that abuse by Americans still occurs in temporary holding centers on military bases where detainees stay immediately after their capture.
“We’re still hearing in some areas that there is abuse continuing,” she said.
Driscoll doesn’t believe anything like that occurs.
“My entire time there, not only did I not witness any, I never heard of anything even close to torture,” he said.
Under current U.S. military rules, when troops detain an individual in the city or in the middle of the desert, they must register the detainee in a computer within 24 hours and present the case to a military lawyer and a commander within 72 hours. Detainees temporarily stay at a military base.
If the commander concludes that the detainee poses a threat to the stability of the country, that person can be transferred to a U.S. detention facility. Those who commit crimes, such as robbery or assault, violating Iraqi law go into the Iraqi court system.
Those believed to pose a continuing threat to the country stay in custody. A commander reviews the case of each person held in a detention center every three to six months. The military will keep detainees considered a threat until the Iraqi government is stable enough to take the cases, said Navy Lt. Cmdr. Daryl Borgquist, a pubic affairs officer stationed in Baghdad.
“Eventually these folks will all be turned over to the Iraqis,” he said.
Within 14 days, the military gives detainees’ names and basic information to the International Committee for the Red Cross and allows the organization to visit them and contact family members.
A Red Cross spokesman said the military turns over names, but it would not say whether the 14-day deadline is met or whether the Red Cross believes some detainees remain unaccounted for.
“We register people to make sure they don’t drop off the earth,” said Simon Schorno. “It’s reasonable to have that amount of time … it still enables us to do that work.”
When Driscoll arrived in Iraq last year, the military had begun revising its interrogation rules after the reports emerged about abuse at the Abu Ghraib prison — which he refers to as Abu-G.
U.S. military policy already specifically forbade using dogs, sleep deprivation, sensory blocking or other inhumane methods because of the conditions brought to light by the Abu Ghraib scandal.
“Post Abu-G, we have become hypercritical to ensure that that aberration would never happen again,” he said.
Driscoll said he saw positive, informal changes in interrogation techniques, which he transformed into official policy.
In the early years of the U.S. presence in Iraq, Iraqi interrogators might be from a different sect than a detainee, which could lead to mistreatment. Iraqi military and law enforcement have traditionally used torture.
“That’s why their justice system has not matured,” he said. “They’ve always had a confession.”
So now, under rules Driscoll put into effect, when an Iraqi officer interrogates a detainee in a U.S. detention center, at least one American must be present in the room, he said.
Under Driscoll’s new policy, a detainee gets a mental and physical check-up before and after each interrogation. The military then captures each interrogation on video.
“You have instant evidence of abuse,” he said.
Officers and interpreters now watch live interrogation on TV monitors. He said the interrogators have caught insurgents who slipped in with the American military by posing as interpreters so they can watch the televised interrogations and give false translations.
“There were bad guys,” Driscoll said. “They wanted to get in and see what was happening.”
Life at home
In the office of the district attorney, among lawyers dressed formally, the 48-year-old Driscoll lets his tie hang loose with his top shirt button unbuttoned, like an inspector in a film noir movie.
Unlike the office’s 15 other inspectors, he does not carry a gun around the office.
“I’m supposed to,” he said, shrugging his shoulders. “But I’ve been in law enforcement for a long time.”
Driscoll was a police officer in Alameda from 1979 to 1984 and then joined the narcotics division of the state Department of Justice. He led the Bay Area division of the justice department’s anti-terrorism task force from 2001 until he joined the district attorney’s office in 2004.
As a member of the Navy reserves, he has left his local job to travel around the world. Looking at a map of Africa, he lists at machine-gun speed the nations where he’s been: “Tanzania, Ghana, Togo, Senegal, Cameroon.”
Although keeping his precise activities vague, Driscoll said his missions tend to involve protecting the U.S. military.
He led a team in 1998 in Tanzania after the bombing of the American embassies in that country and Kenya, conducting what he calls “anti-terrorism work.”
He led a team in 2003 into a remote region of Morocco to find out which individuals or groups might threaten U.S. Army personnel coming to provide relief efforts, such as building homes and hospitals.
“My job was to find out who wanted to kill our humanitarian folks,” he said. “We figure out who’s there, who are the bad guys and make sure that the U.S. is going to be protected.”
While awaiting his next mission, he is investigating crimes with local prosecutors focusing on narcotics and juvenile offenses.
He has no plans to return to Iraq. But he’ll go if the president orders him.
Reach Bruce Gerstman at 925-952-2670 or bgerstman@cctimes.com.