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Because oral argument will not be of material assistance, 1

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h). 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

BRIAN LOPEZ,

2:04-CV-2009-MCE-PAN

Plaintiff,

v. MEMORANDUM AND ORDER

CITY OF SACRAMENTO, CHIEF

ALBERT NAJERA, DETECTIVE

BEEZLEY, DETECTIVE KOHLES,

DETECTIVE HITCHCOCK, and DOES

T THROUGH X, INCLUSIVE,

Defendants.

----oo0oo----

Through the present action, Plaintiff Brian Lopez

(“Plaintiff”) alleges that the City of Sacramento (“City”), Chief

Albert Najera (“Najera”), Detective Beezley, Detective Kohles,

Detective Hitchcock, and Does T through X (collectively

“Defendants”) violated his civil rights.1

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2

Specifically, Plaintiff alleges the following claims: (1) 42

U.S.C. § 1983 (14th Amendment), (2) 42 U.S.C. § 1983 (1st

Amendment), (3) 42 U.S.C. § 1983 (4th and 14th Amendments), (4)

42 U.S.C. § 1983 (Monell Claim), (5) 42 U.S.C. § 1985(2) (4th and

14th Amendments), (6) 42 U.S.C. § 1985(3) (4th and 14th

Amendments), (7) 18 U.S.C. § 1961, et seq. (RICO), (8) California

Civil Code § 52.1(b), (9) California Civil Code § 51, 51.5, 51.7,

(10) Intentional Infliction of Emotional Distress, (11) False

Arrest, (12) Negligence, (13) Negligent Retention, Hiring, and

Training, and (14) Negligent Infliction of Emotional Distress.

On March 17, 2005, the Court dismissed all the foregoing

claims except the third claim for unlawful seizure in violation

of the Fourth and Fourteenth Amendments (“Unlawful Seizure”) as

well as the fourth claim for deliberate indifference to

Plaintiff’s right to be free from unreasonable seizure

(“Deliberate Indifference”). See Mem. & Order, March 17, 2005. 

With respect to those two claims, Defendants are now seeking

summary judgment. For the reasons set forth below, Defendants’

Motion for Summary Judgment is granted. 

BACKGROUND

A detailed factual background for this action has already

been set forth in this Court’s Order dated March 17, 2005, which

is incorporated by reference and need not be reproduced herein.

See Mem. & Order, March 17, 2005, 2:9-3:16.

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3

STANDARD

The Federal Rules of Civil Procedure provide for summary

judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Rule 56 also allows a court to grant summary adjudication on

part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

seeking to recover upon a claim ... may ... move ... for a

summary judgment in the party’s favor upon all or any part

thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

The standard that applies to a motion for summary

adjudication is the same as that which applies to a motion for

summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)).

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4

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

253, 288-89 (1968).

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way,

“before the evidence is left to the jury, there is a preliminary

question for the judge, not whether there is literally no

evidence, but whether there is any upon which a jury could

properly proceed to find a verdict for the party producing it,

upon whom the onus of proof is imposed.” Anderson, 477 U.S. at

251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20

L.Ed. 867 (1872)).

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5

As the Supreme Court explained, “[w]hen the moving party has

carried its burden under Rule 56(c), its opponent must do more

that simply show that there is some metaphysical doubt as to the

material facts .... Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party,

there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at

586-87.

In resolving a summary judgment motion, the evidence of the

opposing party is to be believed, and all reasonable inferences

that may be drawn from the facts placed before the court must be

drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party’s obligation to produce a factual predicate

from which the inference may be drawn. Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

aff’d, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS

1. Unlawful Seizure

Plaintiff alleges that Defendants violated his right to be

free from an unreasonable search and seizure. Further, Plaintiff

claims that Defendants unjustifiably deprived him of his liberty

by unlawfully arresting him without probable cause.

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6

In particular, Plaintiff is seeking to defeat summary judgment by

arguing that one of the elements of the underlying offense of

lewd and dissolute conduct was not met rendering Plaintiff’s

arrest unconstitutional. Specifically, California Penal Code

section 647(a) has been construed to prohibit only the

solicitation or commission of conduct in a public place or one

open to the public or exposed to public view, which involves the

touching of the genitals, buttocks, or female breast, for

purposes of sexual arousal, gratification annoyance, or offense,

by a person who knows or should know of the presence of persons

who may be offended by the conduct. See Pryor v. Mun. Ct. for

L.A. Jud. Dist., 25 Cal. 3d 238, 244 (Cal. 1979). 

Plaintiff argues that because the decoy officer exhibited

qualities of a male homosexual looking to engage in sexual

conduct with another male, this last element of the offense has

not been met rendering his arrest unconstitutional. Plaintiff

further explains that his belief the decoy would not be offended

by the conduct was reasonable in light of the decoy officer’s

outward expressions of sexual interest.

In order for a plaintiff to allege a claim for unlawful

arrest under the Fourth and Fourteenth Amendments, Plaintiff must

allege (1) that there was a seizure of his person by an agent of

the State and (2) that the seizure was unreasonable. U.S. v.

Bachner, 706 F.2d 1121, 1125 (11th Cir. 1983) (citing Katz v.

U.S., 389 U.S. 347 (1967); Elkins v. U.S., 364 U.S. 206 (1960)).

A full-scale arrest is generally unreasonable if not supported by

probable cause. Allen v. City of Portland, 73 F.3d 232, 235 (9th

Cir. 1995).

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7

a) Beezley, Hitchcock and Najera

Defendants argue that no liability may attach pursuant to

section 1983 absent a showing of personal participation in the

alleged constitutional deprivation. Monell v. Dept. of Soc.

Servs., 436 U.S. 658, 691 (1978). Accordingly, they contend,

neither Hitchcock, Breezley nor Najera may be held liable in

their individual capacities as none participated in Plaintiff’s

arrest.

In fact, Defendants are correct that liability under section

1983 arises only upon a showing of personal participation by each

defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

(citing Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)).

Here, Plaintiff does not allege nor does the record support

a finding that Hitchcock, Breezley or Najera personally

participated in Plaintiff’s arrest. See Undisp. Fact #2. 

Accordingly, summary adjudication of this claim as to them is

proper and, hereby, granted.

b) Chief Najara and City of Sacramento

With respect to Najera, in his supervisory capacity, and the

City, Defendants argue there is no city policy, custom or

practice that caused Plaintiff’s alleged constitutional injury

warranting summary adjudication as to these Defendants.

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8

While supervisory officials are not liable for the actions of

subordinates on a theory of vicarious liability under section

1983, they may be liable under section 1983 if (1) the supervisor

is personally involved in the constitutional deprivation, or (2)

there is a sufficient causal connection between the supervisor’s

alleged wrongful conduct and the constitutional violation. See

Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001); see also

Mackinny v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995) (noting

that liability exists even without overt personal participation

in the offensive act if supervisory officials implement a policy

so deficient that the policy “itself is a repudiation of

constitutional rights” and is “the moving force of the

constitutional violation”).

Again, Plaintiff does not allege nor does the record support

a finding that Najera or the City implemented a policy so

deficient that the policy itself is a repudiation of Plaintiff’s

constitutional rights. Even construing Plaintiff’s claims in a

light most favorable to him, his only conceivable argument of an

unconstitutional policy is that the decoy officer’s display of

interest necessarily negated the last element of the offense

eliminating the probable cause underlying his arrest. The Court

is unpersuaded by Plaintiff’s position.

The last element of the offense requires only actual or

constructive knowledge of the presence of persons who may be

offended by the conduct. Plaintiff’s argument that the decoy

officer could not have been offended by his conduct negating this

element of the offense is too narrow. The element encompasses

the presence of “persons” who may be offended.

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9

It is undisputed that Plaintiff and the decoy officer were in a

public nature area. See Undisp. Fact #6. Plaintiff further

concedes that other people frequented the nature area. Id.

These concessions alone are fatal to Plaintiff’s argument. In

light of his knowledge that the nature area is for public use and

his knowledge that other people were present on the day of his

arrest, probable cause for his arrest certainly existed. 

Consequently, summary adjudication of this claim as to these

Defendants is granted.

c) Officer Kohles

With respect to Officer Kohles, Defendants argue the claims

against him should be summarily adjudicated because no

constitutional violation occurred during Plaintiff’s arrest. As

support for this argument, Defendants assert that Officer Kohles

is protected by the doctrine of qualified immunity. The Court

agrees.

The defense of qualified immunity shields an officer from

trial when the officer “reasonably misapprehends the law

governing the circumstances she confronted,” even if the

officer’s conduct was constitutionally deficient. Brosseau v.

Haugen, 543 U.S. 194 (2004)(per curiam)(citing Saucier v. Katz,

533 U.S. 194, 206 (2001).

Where, as here, some or all of the Defendants seek qualified

immunity, a ruling on that issue should be made early in the

proceedings so that the costs and expenses of trial are avoided

where the defense is dispositive. Id. at 200.

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10

In Saucier, the Supreme Court laid out the framework for

determining an officer’s entitlement to qualified immunity.

The threshold inquiry requires a court to ask, “taken in the

light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a

constitutional right?” Id. at 201. The inquiry ends at this

stage if no constitutional right is found to have been violated;

the plaintiff cannot prevail. Id. If, on the other hand, the

plaintiff’s allegations do make out a constitutional injury, then

the court must determine whether that constitutional right was

clearly established at the time of the violation. Id. If the

right was not clearly established, the qualified immunity

doctrine shields the officer from further litigation. Id. 

Finally, even if the violated right was clearly established, the

Saucier court recognized that it may be difficult for a police

officer fully to appreciate how the legal constraints apply to

the specific situation he or she faces. Under such a

circumstance, “if the officer’s mistake as to what the law

requires is reasonable, ... the officer is entitled to the

immunity defense.” Id. at 205. As noted above, the threshold

inquiry requires this Court to ask, taken in the light most

favorable to Plaintiff, do the facts alleged show the Defendants’

conduct violated a constitutional right?

A warrantless arrest by a law enforcement officer is

reasonable under the Fourth Amendment where there is probable

cause to believe that a criminal offense has been or is being

committed. Devenpeck v. Alford, 543 U.S. 146, 152 (2004)(citing

U.S. v. Watson, 423 U.S. 411, 417-424 (1976).

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Further, whether probable cause exists depends upon the

reasonable conclusion to be drawn from the facts known to the

arresting officer at the time of the arrest. Devenpeck, 543 U.S.

at 153. Consequently, if Plaintiff engaged in any activity that

appeared to violate California’s Penal Code, probable cause

existed whether or not the officer’s reasonable conclusion did

not result in a conviction. 

Here, the uncontroverted facts establish that Plaintiff

touched the genitals of Officer Kohles in a public nature area. 

Engaging in lewd or dissolute conduct in any public place or in

any place open to the public or exposed to public view is a

violation of Penal Code Section 647(a) and provided Officer

Kohles with probable cause to arrest Plaintiff. Accordingly,

Officer Kohles’ Motion for Summary Adjudication as to Plaintiff’s

claim of unlawful search and seizure in violation of the Fourth

Amendment of the United States Constitution is granted.

 

2) Monell Claim

Plaintiff contends in his fourth cause of action that one or

more of the Defendants established, maintained, encouraged, and

ratified a custom, practice or policy that led to a violation of

his constitutional rights. Plaintiff’s claim is known as a

Monell claim. See Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S.

658, 690 (1978). A municipality will only be found liable under

section 1983 for a policy of inadequate training or supervision

in limited circumstances. See City of Canton v. Harris, 489 U.S.

378, 387 (1989).

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Inadequacy of training “may serve as the basis for section 1983

liability only where the [municipal entity’s] failure to train

amounts to deliberate indifference to the rights of persons with

whom the police come into contact.” Id. Moreover, a plaintiff

alleging municipal liability under section 1983 must show there

is a direct causal link between a municipal policy or custom and

the alleged constitutional deprivation. Id. at 385.

Again, the record is devoid of evidence that the officers in

this instance were not properly trained. In fact, Plaintiff

concedes that Officer Kohles was specifically trained with

respect to the particular sting operation in which he ultimately

arrested Plaintiff. See Undisp. Fact #10. The Court has found

no constitutional violation with respect to Plaintiff’s arrest

under the present set of facts. Accordingly, Plaintiff cannot

show any causal link whatsoever between the municipal policy and

any constitutional deprivation. Summary adjudication of

Plaintiff’s claim of deliberate indifference in favor of

Defendants is warranted and, therefore, granted.

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CONCLUSION

For the reasons set forth above, Defendants Motion for

Summary Adjudication of Plaintiff’s third and fourth claims is

GRANTED.

IT IS SO ORDERED.

DATED: June 14, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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