Opinion
No. C 99-3607 MMC
July 12, 2001
ORDER GRANTING DEFENDANT O'KEEFE'S MOTION FOR SUMMARY JUDGMENT
Before the Court is defendant Robert J. O'Keefe's motion for summary judgment, filed October 26, 2000. Plaintiff filed opposition, to which defendant has replied. The Court, having considered the papers filed in support of and in opposition to the motion, rules as follows.
BACKGROUND
A. Factual background
The following facts are either undisputed or read in the light most favorable to the plaintiff.
On April 21, 1998, two men using false identities purchased two jet skis and a trailer from Ultimate Watercraft in Hayward, California. (Declaration of Robert O'Keefe ("O'Keefe Decl.") ¶¶ 3, 6.) One was a white male using a driver's licence in the name Jim Lee Beckmann. (Id.) The other was a black male using a driver's license in the name of Rick Johnson. (Id.) Employees Brian Boell and Jeanne Boell handled the transaction. (Defendant O'Keefe's Motion for Summary Judgment ("Mot. for Summ. J.") Ex. P ¶ 2; Ex. Q ¶ 2.) The men were driving a black truck or "Blazer type" vehicle. (O'Keefe Decl. ¶ 3.)
On April 23, 1998, two men using the same false identities purchased and took possession of three jet skis, one trailer and one all terrain vehicle ("ATV") at Hayward Honda/Suzuki/Seadoo ("Hayward Suzuki") in Hayward, California. (Id. ¶ 5.) The two men were seen at Hayward Suzuki by employees Kim Wooster ("Wooster"), Teresa Connors ("Connors") and Joseph Bondad ("Bondad"). (See Mot. for Summ. J. Ex. J; Ex. R ¶ 3; Ex. S ¶ 3; Ex.T ¶ 4; O'Keefe Decl. ¶¶ 5, 8, 9.)
Defendant, a California Highway Patrol ("CHP") officer assigned to the Alameda County Regional Auto Theft Task Force, first discovered the crimes during his investigation of Cyrus Ashford ("Ashford"), a black male suspected of fraudulently obtaining vehicles from dealerships. (O'Keefe Decl. ¶¶ 1-3.) Defendant observed one of the stolen jet skis on a trailer attached to a vehicle registered to Ashford's girlfriend. (Id. ¶ 2.) He contacted Ultimate Watercraft, and Jeanne Boell informed him that the jet ski had been fraudulently purchased by two persons who arrived together in a black truck or Blazer-type vehicle and identified themselves as "Jim Beckman" and "Rick Johnson" (Id. ¶ 3-4.) Defendant then contacted the true Jim Beckmann, who told him that he had not purchased jet skis or other watercraft at either dealership and that he had previously lost his driver's license. (Id. ¶ 6; Mot. For Summ. J. Ex. L.)
On April 28, 1998, defendant showed a photographic lineup made up of six pictures, including one of Ashford, to employees Brian and Jeanne Boell at Ultimate Watercraft and Wooster and Bondad at Hayward Suzuki. (0'Keefe Decl. ¶¶ 7, 8.) Each identified Ashford as the black male who had fraudulently purchased the equipment using the name Rick Johnson. (Id.) Defendant also spoke to employees at Ultimate Watercraft and Hayward Suzuki regarding the description of the white male who had accompanied Ashford and identified himself as Jim Beckmann. Four of the employees reported that the man using the name Jim Beckmann had a gap in his front teeth. Brian Boell described the suspect as having a "prominent gap in his front teeth." (Mot. for Summ. J. Ex. Q ¶ 5.) Jeanne Boell described the man as white, with short blond hair combed forward, a noticeable gap in his front teeth, wearing at least one pierced earring in his right ear. (Id. Ex. P ¶ 5.) Con ners described the man as white, tall, with a lean build, although not skinny, with short hair and a receding hair line, "a prominent gap between his two front teeth," a narrow face with eyes close together, and a long neck. (Id. Ex. R ¶ 5.) Bondad reported that the white male adult had bad teeth which were crooked with large gaps between them, a sharp chin, a "buzz cut" type of hair style, and who was approximately 5'10" to 6'0" tall. (Id. Ex. T ¶ 7.) Wooster described the suspect as white, in his mid-twenties with short hair. (0'Keefe Decl. ¶ 9.)
In a signed statement dated May 18, 1998, Wooster described the suspect to the Hayward police as a white adult male in his mid to late twenties, 5'9" or 5'10", 140 to 150 pounds, with dirty blond, "real short" hair. (O'Keefe Decl. ¶ 22; Mot. for Summ. J. Ex. N-1.)
Plaintiff's teeth are straight and there is no gap between his front teeth. (Plaintiff's Opposition to Defendant O'Keefe's Motion for Summary Judgment ("Pl's Opp.") Ex. A at 102:14-16; Ex. C at 7:3-7.) He is 6'0" tall, weighs approximately 155 pounds, and was born on April 17, 1972. (Mot. for Summ. J. Ex. U at 25:24-26:14.)
On May 21, 1998, defendant recovered from a garage belonging to an associate of Ashford two of the jet skis that had been fraudulently purchased from Ultimate Watercraft. (O'Keefe Decl. ¶ 10.) On July 7, 1998, defendant was informed by radio that another CHP officer, Ron Rogers, had observed a white male driving a black Jeep Cherokee arrive and leave several times from the location of the Hayward beauty salon where Ashford's girlfriend worked and where the jet ski and trailer had been seen. (O'Keefe Decl. ¶ 11.) Defendant checked the license plate and determined that the black Jeep was registered to plaintiff. (Id. ¶ 12.) He then drove to plaintiff's address and, from a school parking lot across the street, observed plaintiff arrive home and get out of the jeep. (Pl's Opp. Ex. A at 65:21-67:16.) Defendant was unable to see plaintiff's teeth. (Id.) Although plaintiff was wearing a hat, it appeared to defendant that plaintiff's hair was short. (Id; O'Keefe Decl. ¶ 12.) Defendant subsequently returned to plaintiff's address on several occasions and observed him from the same vantage point. (Pl.'s Opp. Ex. A at 66:19-67:16.) He was never able to see plaintiff's teeth. (Id.)
Defendant created a photographic lineup, using photographs of plaintiff and five other males similiar in appearance to plaintiff supplied by the Department of Motor Vehicles. (Pl.'s Opp. Ex. A at 81:13-82:25; O'Keefe Decl. ¶ 14.) In the photograph of plaintiff used in the lineup, plaintiff is not smiling and his teeth are not visible. (Def. Mot. for Summ. J. Ex. F.) of the five other photographs in the lineup, two show the subject's teeth. (Id.) of those two, one individual clearly does not have a gap in his teeth; it is difficult to determine whether or not the other has a gap. (Id.; O'Keefe Decl. ¶ 14.)
On July 20, 1998, defendant showed the photographic lineup to Brian Boell and asked him whether he could identify anyone as the person who had used Beckmann's license to purchase jet skis. (O'Keefe Decl. ¶ 15.) Brian Boell selected plaintiff's photograph. (Id.; Mot. for Summ. J. Ex. G.) On July 22, 1998, defendant showed the
lineup to Jeanne Boell, who had been out of the office on the earlier date. (0'Keefe Decl. ¶ 18.) Jeanne Boell was unable to identify any of the men in the photographic lineup as the white male suspect. (Id.) Defendant also showed the photograhic lineup to Wooster, Conners, and Bondad on July 22, 1998. Bondad was unable to identify any of the photographs. (Mot. for Summ. J. Ex. T ¶ 9; O'Keefe Decl. ¶ 18.) Wooster selected plaintiff's photograph as the person who used the name Jim Beckmann to purchase watercraft. (O'Keefe Decl. ¶¶ 16, 17; Mot. For Summ. J. Ex. H.) Conners qualified her identification by telling defendant that if the person depicted in photograph number five (plaintiff's photograph) had a gap in his front teeth, then he was the man who had falsely used the name Jim Beckmann. (Mot. for Summ. J. Ex. R ¶ 14.)
Wooster states in her declaration that when she selected plaintiff's picture, she "was less than 50% sure" that her selection was correct. (See id Ex. S ¶ 10.) Wooster never states, however, that she informed defendant about her uncertainty, nor has plaintiff offered any evidence suggesting that defendant was so informed.
On July 27, 1998, defendant prepared and signed applications and affidavits for a search warrant for plaintiff's residence, vehicle and person, and for a warrant of arrest on charges of grand theft, false financial statements, false personation and conspiracy. (See Id. Ex. L.) The affidavit described the identification of Cyrus Ashford as the black male who had falsely identified himself as Rick Johnson, and stated the following with respect to plaintiff: (1) plaintiff was observed driving a black Jeep Cherokee and was further observed arriving and leaving a location "associated to Cyrus Ashford"; (2) he "matched the description of Jim Beckmann that [defendant] had obtained from Ultimate Watercraft and Hayward Honda/Suzuki/Seadoo"; and (3) Brian Boell, Wooster, and Conners had identified plaintiff from the photographic lineup as the person who had identified himself as Jim Beckmann. (Id.) Based on the affidavits submitted by defendant in support of the applications, both warrants were signed by the magistrate. (Id.)
The same affidavit was submitted in support of both warrants.
On July 28, 1998, defendant served the arrest and search warrants at plaintiff's residence. (Def. Mot. For Summ. J. Ex. N at 10 (unnumbered).) Defendant noticed at this time that plaintiff did not have gapped or crooked teeth. (Pl's Opp. Ex. A at 102:5-16.)
The officers found no evidence of the theft of the jet skis or identity theft in plaintiff's house. (Id. at 104:7-13.) Thereafter, on that same date, Brian Boell was brought to plaintiff's residence and identified plaintiff in person as the white male who had used the name Jim Beckmann. (O'Keefe Decl. ¶ 21.) At the time of the in-person identification, defendant did not ask plaintiff to show his teeth to Brian Boell, Brian Boell made no reference to anyone's teeth, and Boell did not see plaintiff's teeth. (Pl's Opp. Ex. A at 143:1-22.)
In his declaration, Briean Boell states he identified plaintiff "as the person whose photograph I selected. . . ." (Def. Mot. For Summ. J. Ex. Q ¶ 19.)
Plaintiff was taken to jail and booked on the arrest warrant. (Id. Ex N at 12 (unnumbered).) Although he was subsequently charged with multiple crimes arising from the fraudulent transactions, the charges were later dismissed, and on June 10, 1999, plaintiff was granted a finding of factual innocence. (See Pl's Opp. Ex. D.)
Subsequent to plaintiff's arrest, defendant was interviewed by reporter Jeff Chorney. (0'Keefe Decl. ¶ 23.) In an article that appeared in the Alameda Times-Star on September 14, 1998, Chorney wrote:
Investigators served four search warrants in Hayward and one in San Francisco. O'Keefe said investigators got lucky because every search yielded stolen property.
Arrested and charged with numerous felony counts of grand theft, false impersonation of another person and possession of stolen property are the following Hayward residents: Cyrus Ashford, also known as Adrian Sims, 28; Christopher Olenzak, also known as Christopher Glenzak, 26; and Eric Lamont Merritt, 37.
On May 21, 1999, the following clarification appeared in the Alameda Times-Star:
A story published by ANG Newspapers in September 1998 stated that Christopher Olenzak was arrested and charged in connection with a fraud and stolen property case. No stolen property was found in Olenzak's possession and he was never charged with possession of stolen property. All charges against Olenzak were dropped in January.
(Mot. for Summ. J. Ex. W.)
In fact, no stolen property was recovered from plaintiffs residence, vehicle or person. (O'Keefe Decl. ¶ 23; Def. Mot. for Summ. J. Ex. O.) The only "evidence" recovered from plaintiff's residence was plaintiff's driver's license and a piece of mail, as indicia that he lived at that address. (O'Keefe Decl. ¶ 23.)
B. Procedural Background
The original complaint in this action was filed on July 26, 1999, and named a total of twelve municipal and individual defendants. On October 12, 1999, the parties filed a stipulation to dismiss the complaint with prejudice as to defendant T. Banayet. On October 15, 1999, the Court dismissed the complaint with leave to amend as to defendant DO. Helmick. On November 9, 1999, the parties stipulated to dismiss the complaint with prejudice as to defendant County of Alameda (sued as Sheriff's Department of the County of Alameda, California).
On November 4, 1999, plaintiff filed his first amended complaint ("FAC"). By order filed January 10, 1999, the Court dismissed the FAC with prejudice as to defendants K. Dittimus, A. Cosgrove, Ronald Rogers, S. Blair, M. Beauregard and J. Volk, and without prejudice as to defendants O'Keefe, Helmick, Stephen Kowalewski, and Paul Vinson.
On February 9, 2000, plaintiff filed his second amended complaint ("SAC"). By order filed April 10, 2000, the SAC was dismissed with prejudice as to defendants Helmick, Kowalewski, and Vinson; plaintiff's false arrest/illegal imprisonment and defamation claims were dismissed with prejudice as to defendant O'Keefe. By order filed June 14, 2000, the Court denied plaintiff's motion for entry of final judgment as to defendant's Helmick, Kowalewski and Vinson.
On October 26, 2000, defendant O'Keefe filed the instant motion as to the one cause of action remaining against him, plaintiff's claim under 42 U.S.C. § 1983. On November 28, 2000, plaintiff filed a motion to extend to that date the time to file his opposition to defendant O'Keefe's motion. By order filed December 12, 2000, the Court granted plaintiff's motion and ordered defendant to file a reply, if any, by December 19, 2000. By separate order filed December 12, 2000, the Court granted defendant City of Hayward's unopposed motion for summary judgment, leaving defendant O'Keefe as the only remaining defendant.
LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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."
The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. The moving party need not produce admissible evidence showing the absence of a genuine issue of material fact when the nonmoving party has the burden of proof, but may discharge its burden simply by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Ceiotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial, "inferences to be drawn from the underlying facts.., must be viewed in the light most favorable to the party opposing the motion." Matsushita, 475 U.S. at 587 (citation omitted).
DISCUSSION
A. § 1983 Claim Predicated on Fourth Amendment Violation
Plaintiff contends defendant violated plaintiff's Fourth Amendment rights by omitting from his affidavit facts that would have eliminated plaintiff as a suspect in the thefts from Ultimate Watercraft and Hayward Suzuki. Plaintiff claims, in essence, that the omission of these facts misled the magistrate, who would not have issued the warrants had defendant included the omitted information in his affidavit.
Defendant argues that he did not violate plaintiff's Fourth Amendment rights and that he is entitled to qualified immunity. Because qualified immunity is "an immunity from suit rather than a mere defense to liability," the Court will first address the question of immunity. See Lombardi v. City of El Cajon, 117 F.3d 1117, 1121 (9th Cir. 1997) (holding court "obliged" to first consider whether officer entitled to qualified immunity before deciding whether officer violated plaintiff's Fourth Amendment rights).
Under the qualified immunity doctrine, law enforcement officials performing discretionary functions are shielded from liability for civil damages if a reasonable officer could have believed that his or her conduct did not violate clearly established statutory or constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). "In Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995), [the Ninth Circuit] clarified the mechanics of a judicial deception claim and carefully spelled out the burden a plaintiff must meet in order to survive a defendant officer's motion for summary judgment on the ground of qualified immunity." Liston v. County Riverside, 120 F.3d 965, 973 (9th Cir. 1997). Specifically, "the plaintiff must 1) make a "substantial showing' of deliberate or reckless disregard for the truth and 2) establish that, but for the dishonesty, the challenged action would not have occurred." Id. (internal quotation and citation omitted). In other words, the showing necessary to defeat a claim of qualified immunity in a § 1983 action "is the same as the showing necessary to get an evidentiary hearing under Franks." id.
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that a defendant in a criminal case can attack a facially sufficient affidavit upon a showing of a material misstatement of fact, either intentionally or recklessly made. See Id. at 155-56. The Eranks test also applies to omissions. See United States v. Meling, 47 F.3d 1546, 1554 (9th Cir.), cert. denied, 516 U.S. 843 (1995).
Where information is intentionally, as opposed to negligently, omitted from an affidavit, even if not for the purpose of misleading the magistrate, the first, or "subjective intent," requirement of Eranks and Efervey is satisfied. aee Lombardi, 117 F.3d at 1126. In the present case, a triable issue of fact exists as to defendant's intent. A sufficient showing as to the first of the two requirements, however, is not sufficient to warrant a Franks hearing. See Id. A plaintiff must show that the defendant left out material information. eZe Id. To meet this second requirement, a plaintiff must show that "the affidavit... supplemented by the omissions would not be sufficient to support a finding of probable cause." United States v.Stanert, 762 F.2d 775, 782. The question, therefore, is "whether the affidavit, once corrected and supplemented, would provide a magistrate with a substantial basis for concluding that probable cause existed." Id. The effect of the omissions on the existence of probable cause is considered cumulatively. Id.
"Probable cause determinations are to be made by viewing the "totality of the circumstances' set forth in the affidavit." Id. at 778 (quoting Illinois v. Gares, 462 U.S. 213 238 (1983)). This test requires a "practical, commonsense decision" whether, given all the circumstances set forth in the affidavit, there is probable cause to believe the suspect committed an offense or that evidence of a crime will be found in a particular place. $eZe Gates, 462 U.S.at 238.
Plaintiff contends that O'Keefe intentionally omitted from the affidavit the following information: (1) four of the five employees initially interviewed told O'Keefe the perpetrator had gapped or crooked teeth; (2) the photographic lineup did not show plaintiff's teeth nor those of three other individuals, nor did it show anyone with gapped or crooked teeth; and (3) Conners, one of the identifying witnesses, conditioned her identification of plaintiff on the appearance of his teeth.
In his SAC plaintiff alleges that O'Keefe additionally omitted the fact that one of the witnesses described the suspect as having a pierced right ear, several witnesses described the suspect as has having his hair cut short, and two witnesses were unable to identify plaintiff from the photographic lineup. (See SAC ¶ 11.) At this stage of the proceedings, however, plaintiff has not argued the materiality of those omissions. In any event, had such facts been included in the affidavit, they would not have significantly affected the showing of probable cause. See, e.g., Wilson v. Russo, 212 F.3d 781, 791-92 (3rd Cir. 2000) (holding, where one witness identified plaintiff from photographic lineup, omission of discrepancies between suspect's reported height and plaintiff's height, as well as failure of one witness to identify plaintiff, not sufficient to negate finding of probable cause).
Relying on Golino v. City of New Haven, 950 F.2d 864 (2nd Cir. 1991), plaintiff argues that this omitted information is sufficient to preclude summary judgment in defendant's favor. In Golino, a murder suspect brought a § 1983 action for malicious prosecution. In the affidavit submitted in support of the arrest warrant, the arresting officers had omitted the following information:
that most of the eyewitnesses described the killer as thin, whereas Golino at the time weighed 215 pounds; that most of them described the killer as being clean shaven, whereas Golino at the time had a mustache; that the one eyewitness who said the killer had a mustache immediately positively identified a person other than Golino as the killer, and the man identified turned out to be [Golino's former wife]'s boyfriend; that Golino's prime accuser, his former wife (whose extreme bias against Golino was confirmed at the 1984 state hearing), had made statements both inconsistent with those quoted in support of the warrant and recanting those quoted in support of the warrant; that the police had fingerprints which they strongly believed to have been left by the killer but which did not match the prints of Golino; and that the police knew the blood type of the killer but had declined to test Golino for blood type.
Golino, 950 F.2d at 871-72.
Golino is readily distinguishable from the present action, in both the number and significance of the facts omitted. First, the appearance of one's teeth, unlike fingerprints or blood type, may be altered, whether for cosmetic or criminal purposes. The offenses under investigation here included false personation. Second, in Golino, there were additional significant discrepancies between the suspect as described and Golino. Given the timing of the offense and arrest in that case, the suspect would have had no opportunity to gain a substantial amount of weight or grow a moustache. Finally, there was substantial evidence that the primary witness in Golino was biased and unreliable.
Indeed, O'Keefe testified that suspects have been known to wear false teeth to disguise their appearance and that, during the search of plaintiff's residence, he located a dental apparatus, which he initially considered seizing as evidence. (aee Salerno Deck Ex. X at 103: 4-18; 104:14-20.)
Plaintiff's citation to $Ianert is similarly unavailing. $tanert involved an affidavit used to obtain a search warrant for a residence that police suspected of housing a drug laboratory. The officer who provided the affidavit stated thererin that Stanert, the owner of the house, had been arrested serveral years prior in Panama for possession of a large quantity of cocaine. See Stanert, 762 F.2d at 777-78. The officer also stated than an explosion had occurred at the residence the previous year as a result of ignition of ether fumes during the operation of a clandestime drug laboratory. See id. The officer failed to mention, however, that Stanert had never been convicted as a result of the arrest and that he had purchased and moved onto the property after the explosion had occurred. Zee Id. 780-82.
Stanert is distinguishable from the present action because the very inference the reviewing court found necessary to a determination of probable cause, Stanert's prior possession of narcotics and his prior operation of a drug laboratory on the subject premises, could not be drawn from the facts as actually known to the affiant. See Id. at 781-82. Here, by contrast, although the omitted information was potentially relevant, it was not dispositive. See United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) ("Omitted information that is potentially relevant but not dispositive is not enough to warrant a Fraiiks hearing.")
As noted, to defeat defendant's claim of qualified immunity, plaintiff must show that the claimed omissions, either separately or taken together, were "necessary to the finding of probable cause." See Franks, 438 U.S. at 156. Put another way, the facts omitted must be "material." See Coakiey, 899 F.2d at 301. It is not enough, however, that the omission "may have affected the outcome"; to qualify as material under Franks, "an omission must do more than potentially affect the probable cause determination." See Id. "[I]t must be such that its inclusion in the affidavit would defeat probable cause for arrest." aee Id.
In the instant case, two eyewitnesses, both with ample opportunity to view the actual perpetrator, independently and positively identified plaintiff as that person, and did so without qualification or need to know the condition of either the actual or apparent condition of his teeth. The issue thus presented is whether inclusion in the affidavit of the exculpatory evidence as to the witnesses' description of the perpetrator's teeth, coupled with defendant's lack of knowledge about plaintiff's teeth, would "outweigh [those identifications] such that probable cause would no longer exist." See Wilson, 212 F.3d at 790.
Given the "totality of the circumstances," which include the positive identifications of plaintiff by credible eyewitnesses, defendant's observation of plaintiff driving to and from a place of business connected with the other suspect's girlfriend, and the fact that plaintiff's physical appearance matched that of the suspect in all other significant respects, the Court concludes the omitted exculpatory facts were not sufficient to fatally undermine probable cause. In other words, the Court "cannot say that a magistrate would not have issued the warrant" had the omitted facts been presented. See Lombardi, 117 F.3d at 1126. Accordingly, O'Keefe is entitled to qualified immunity on plaintiff's § 1983 claim. See Id. ("[W]hen it is not plain that a neutral magistrate would not have issued the warrant, the shield of qualified immunity should not be lost . . .
Additionally, the black Jeep Cherokee that defendant observed plaintiff driving was the same kind of car used by the suspects. This fact, however, was not included in the affidavit, and thus cannot be considered by the Court in determining the issue presented.
B. § 1983 Claim Predicated on Defamation
Plaintiff also seeks recovery under § 1983 for defamatory statements allegedly made by defendant to a newspaper reporter following plaintiff's arrest. Damage to reputation, standing alone, is not sufficient to invoke federal Constitutional protection. Zee Pa I v. Davis, 424 U.S. 693, 700-02 (1976). Rather, a federally recognized interest is implicated only when an individual's reputation is stigmatized in connection with the denial of some "more tangible" interest. See id. at 700-01. Such a connection can be shown by establishing either that the defamatory communication caused the loss of a constitutionally protected right or that the injury to reputation occurred "in conjunction" with the loss of a recognizable property or liberty interest. See Stevens v. Rifkin, 608 F. Supp. 710, 726-27 (N.D.Cal. 1984) (citations omitted); Gobel v. Maricopa, 867 F.2d 1201, 1205 (9th Cir. 1989) (holding plaintiff sufficiently pleaded "defamation plus" injury; reversing dismissal of § 1983 claims for false arrest and defamation where complaint alleged false statements were made in connection with illegal arrest); Marrero v. City of Hialeab, 625 F.2d 499, 516-19 (5th Cir. 1980) (holding plaintiffs stated § 1983 claim for slander where alleged defamatory statements were issued by media in connection with unconstitutional arrest and prosecution), cert. denied, 450 U.S. 913 (1981).
As noted, plaintiff's state law defamation claim was dismissed by the Court's order of April 10, 2000, on the ground that plaintiff failed to comply with the requirements of the California Torts Claims Act. (See Order Granting Motion to Dismiss at 8.)
Here, plaintiff's "defamation plus" claim assumedly is based on his claim that defendant deprived him of his Fourth Amendment rights by omitting exculpatory facts from the affidavit offered in support of the arrest and search warrants. Plaintiff, however, has failed to establish defendant's liability on that claim. Consequently, plaintiff's "defamation plus" claim must fail as well. See, e.g., Weiner v. San Diego County, 210 F.3d 1025, 1032 (9th Cir. 2000) (affirming summary judgment in favor of defendant on plaintiff's § 1983 claim predicated on defamation, where plaintiff failed to show right, privilege, or immunity protected by Constitution was violated in conjunction with alleged defamatory statement).
CONCLUSION
For the reasons expressed above, defendant's motion for summary judgment is hereby GRANTED.
The clerk shall close the file and terminate any pending motions.