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TENE v. CITY COUNTY OF SAN FRANCISCO

United States District Court, N.D. California
May 11, 2004
No. C 00-03868 WHA (N.D. Cal. May. 11, 2004)

Summary

In Tene, Judge Alsup found explicitly that "the issues raised in this civil action are separate and distinct from the alleged criminal activity that occurred some time ago and is the subject of the criminal proceeding."

Summary of this case from McCormick v. Rexroth

Opinion

No. C 00-03868 WHA.

May 11, 2004


ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT


INTRODUCTION

Plaintiff Teddy Tene brings this civil-rights action alleging that certain conditions of his home detention while on pretrial release in a state criminal action violated his constitutional rights. Defendants now move for summary judgment. This order GRANTS the motion.

STATEMENT

On November 5, 1997, a San Francisco grand jury returned a 96-count indictment charging plaintiff Teddy Tene and seven other individuals with crimes arising out of a conspiracy to abuse and defraud (and ultimately murder) various elderly and dependent men. Plaintiff's mother, two brothers and sister were indicted as co-conspirators (Tene Dep. 32-34). Two of the 96 counts focused on plaintiff's conduct. Plaintiff was charged with one count of conspiring to embezzle property from an elderly and dependant adult in violation of California Penal Code Section 182(a) and one count of embezzlement from an elderly and dependent adult in violation of Penal Code Section 368(c). A bench warrant was issued for plaintiff's arrest, which was effectuated on November 6, 1997. He was arraigned on November 10, 1997. Plaintiff was 27 years old at the time.

On November 12, 1997, plaintiff moved for a reduction in bail, which had been set at $1,000,000 (Bonta Decl. Exh. A). Plaintiff's motion was granted on December 23, 1997 ( id. at Exh. B). San Francisco Superior Court Judge Robert Dondero reduced bail to $25,000, provided that the following conditions apply ( ibid.):

1. Electronically monitored at his own expense and with court approval.
2. Not to travel outside San Francisco and must surrender passport.
3. To call monitoring company at 9:00 a.m. every day, including weekends.
4. Defendant is to have no responsibility or involvement in any financial or legal arrangements or dealing of other persons, including indicted and unindicted co-conspirators.
5. The defendant is to have no contact directly or indirectly with any witnesses of the prosecution in this case.
6. District Attorney to receive a copy of electronic monitoring arrangement.

7. No weapons.

There is no dispute that plaintiff consented to the above conditions, posted bail and was released from custody (Tene Dep. 26-27).

Pending the ongoing investigation into the alleged conspiracy, plaintiff participated in a home-detention program. It is unclear whether plaintiff volunteered for the program (as defendants phrase it) or whether he was assigned to such a program by the San Francisco Sheriff's Department (as alleged by plaintiff). The record provides no clear guidance either way. Nonetheless, while on home detention, plaintiff submits that additional conditions were imposed upon him unilaterally by the sheriff's department separate from the conditions of release set forth in Judge Dondero's order. Plaintiff specifically contends he was ordered not to speak with members of his family, who were also under indictment for the same alleged scheme. He also asserts he was prevented from working or attending school. As discussed more fully below, there is nothing in this record to support the contention that plaintiff was prevented from communicating with his family (at least beyond the conditions imposed by the judge). As to whether plaintiff was allowed to work or go to school, the record contains two items of evidence that suggest such a condition existed.

The first is a letter dated January 11, 1999, from Jon Johnson, assistant program director of Linda Connelly Associates, Inc., a criminal-justice, social-service agency utilized by the City and County of San Francisco to implement its home-detention program. The letter was addressed to Magdalene Lee, a social worker, and provided:

This letter is to verify that Mr. Ted Tene is on home detention per the San Francisco Sheriff's Department. Mr. Tene began the home detention program on 12/31/97. Mr. Tene's release date is unknown due to his pre-trial status. Per the San Francisco Sheriff's Department, Mr. Tene is not allowed to work or attend any type of schooling while on home detention.

(Balch Dep. Exh. 11). When asked in deposition whether he had seen the letter before, plaintiff said he had. As for when he had seen it, plaintiff responded "I guess, if this is the time he handed it over to me, where it's dated January 11, '99" (Tene Dep. 48-49). Mr. Johnson purportedly gave the letter to plaintiff so he could give it to Ms. Lee ( id. at 49). By the date indicated, plaintiff had been on home detention for over a year.

The second item to support plaintiff's claim is a slip of paper dated December 30, 1997, which stated "24 Hour Detention" in reference to plaintiff, a "client" of Linda Connelly Associates (Balch Dep. Exh. 14). The agency's person most knowledgeable testified that the document came from the "Sheriff's Office" ( id. at 41). This slip of paper was part of plaintiff's file with Linda Connelly Associates, which was not otherwise made a part of the record in this case. As a result, there is nothing in this record to indicate whether plaintiff complied with any of the conditions of his home detention, let alone the two alleged conditions with which plaintiff here takes issue.

On June 15, 1999, the two criminal charges against plaintiff were dismissed on statute-of-limitations grounds. A week later on June 24, 1999, plaintiff was released from home detention. The district attorney appealed the dismissal. On December 20, 2001, the state court of appeal reversed. The charges against plaintiff were reinstated and are currently pending (Tene Dep. 38). Trial in the criminal case is set for October 15, 2004.

Following the dismissal of the criminal charges and pending the district attorney's appeal, plaintiff filed the instant suit in San Francisco Superior Court on July 24, 2000. The action was removed to federal court on October 19, 2000, and an amended complaint was filed thereafter against the City and County of San Francisco, the San Francisco Police Department, the San Francisco Sheriff's Department, and Linda Connelly Associates. Plaintiff alleged therein that:

By forcibly removing plaintiff from society without any procedural protection whatsoever and by keeping plaintiff under home arrest for 21 months with the restrictions imposed upon him, defendants deprived plaintiff of his liberty without due process of law in violation of the First and Fourteenth Amendments to the United States Constitution and the equal protection of the law in violation of the Fourteenth Amendment.

(First Amend. Compl. ¶ 15). He specifically alleged that while "[u]nder home detention, plaintiff was not allowed to contact his mother, two brothers and one sister, nor was he allowed to do anything on their behalf" ( id. ¶ 13). He was "also prevented from seeking employment or from enrolling in school" ( ibid.). According to plaintiff, defendants' activities violated the due process clauses of the United States and California Constitutions and exposed them to liability under 42 U.S.C. § 1983. Plaintiff also sought declaratory relief.

Defendants moved for judgment on the pleadings. On August 29, 2001, the motion was granted on the ground that plaintiff's federal claim under Section 1983 was time-barred by California's one-year statute of limitations (Order Granting Defendants' Motion for Judicial Notice, Granting Plaintiff's Request for Leave to Amend, Granting Defendants' Motion for Judgment on the Pleadings, and Remanding to State Court, dated Aug. 29, 2001, at 5-6). The Ninth Circuit reversed and remanded, holding that this Court had not properly determined whether plaintiff was entitled to equitable tolling. Tene v. City and County of San Francisco, et al., 2003 WL 21436227, *2 (9th Cir. June 16, 2003). Timeliness is not an issue now on summary judgment.

Consistent with the opinion of the Ninth Circuit, what remains in this case is plaintiff's federal and related state claim that defendants violated his due process rights. Although plaintiff's first amended complaint made reference to the First Amendment and equal protection, he did not pursue the dismissal of those claims on appeal. Id. at *2 n. 1. The Ninth Circuit held that plaintiff had "abandoned any contention that the district court erred in dismissing his First Amendment and equal protection `claims.'" Ibid. To further narrow the focus of this case, plaintiff states he "is not pursuing further any . . . claim against the San Francisco Police Department" (Opp. 1-2). This concession warrants the dismissal of any and all claims against the police department.

As a final matter, plaintiff's criminal attorney has instructed plaintiff to invoke the Fifth Amendment in response to nearly all of defendants' discovery requests in this civil action. Plaintiff requests that this case be stayed (with our trial set for June 21, 2004) pending the resolution of the state criminal case.

ANALYSIS

1. LEGAL STANDARD ON SUMMARY JUDGMENT.

Summary judgment is appropriate where no genuine issue of material fact exists and a party is entitled to prevail in the case as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party requesting summary judgment has the initial burden of showing that there are no genuine issues of material fact. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 632 (9th Cir. 1987). The moving party does not necessarily need to put on evidence to negate the opponent's claim; it may simply point to portions of the pleadings, admissions, answers to interrogatories and depositions which, along with any affidavits, show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party satisfies this initial burden, the opposing party may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show a dispute exists. Fed.R.Civ.P. 56(e). In addition, the dispute must be genuine. The "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

2. THERE IS NO EVIDENCE THAT PLAINTIFF'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHILE ON HOME DETENTION.

The thrust of the instant litigation is that defendants violated plaintiff's due process rights by imposing certain conditions on his home detention. Plaintiff points to two particular conditions. First, he contends he was deprived of his right to communicate with his mother and siblings (who were indicted as co-conspirators). Second, he contends he was also deprived of his right to seek employment or go to school. According to plaintiff, these conditions were imposed unilaterally by the sheriff's department and constituted forms of "punishment" prohibited by the Fourteenth Amendment. Each condition is considered below.

A. The Right to Communicate with Family.

In his amended complaint, plaintiff alleged that while "[u]nder home detention, plaintiff was not allowed to contact his mother, two brothers and one sister, nor was he allowed to do anything on their behalf" (First Amend. Compl. ¶ 13). Plaintiff maintains that the sheriff's department imposed the condition without notice and an opportunity to be heard.

As a threshold matter, there is simply nothing on this record to support the contention that, as a condition of home detention, plaintiff was not allowed to contact or otherwise interact with his family. That is, plaintiff has not demonstrated that the condition he now challenges was actually imposed in this case. This alone is fatal to plaintiff's contention. Plaintiff maintains that his challenge is not to the pretrial release order of Judge Dondero, which provided for a reduction in bail and set forth various conditions of release. That order, however, did state that:

Defendant is to have no responsibility or involvement in any financial or legal arrangements or dealing of other persons, including indicted and unindicted co-conspirators.

(Bonta Decl. Exh. B). This is the only evidence in the current record that even mildly resembles a potential restriction on plaintiff's right to communicate with members of his family. An argument in this regard, however, would fail for a number of reasons. First, there is no dispute that plaintiff consented to the above condition as well as the others listed in Judge Dondero's pretrial order of release. With this consent, plaintiff posted bail and was released from custody (Tene Dep. 26-27). He cannot now transform his acquiescence into a basis for constitutional injury. Second, plaintiff cannot seek to impose liability upon defendants herein pursuant to the actions of a state-court judge. Indeed, Judge Dondero is entitled to absolute immunity from civil damages for acts, as in the present case, performed in his judicial capacity. Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). Third, and most significantly, plaintiff conveniently casts aside the procedure through which conditions of pretrial release are regularly imposed. When someone is under indictment, the first issue that arises is whether the individual should be detained pending trial or whether some form of pretrial release can be arranged in light of the individual's circumstances. A court balances the need to protect society from further injury and any risk of flight against the important rights of the individual defendant. Should this balancing weigh in favor of pretrial release, various conditions on that release are regularly in order. One standard condition is that the defendant avoid any contact, financial or otherwise, with a co-defendant. This is common in both the federal and state systems.

Here, plaintiff was under indictment for conspiring with others, including his mother, two brothers and sister, to abuse and defraud elderly men of their property. It was thus reasonable for Judge Dondero to restrict plaintiff from engaging in the financial and legal affairs of others, including his indicted family members. At any time thereafter, however, the condition could have been modified, depending on any number of changed circumstances. Judge Dondero was in a position to make such a determination. At the hearing on defendants' motion, defense counsel stated that the state-court judge had in fact at some point amended the condition of plaintiff's pretrial release restricting his ability to travel outside San Francisco. Although the amended order was not made a part of this record, Judge Dondero allegedly expanded the geographical scope of his order, allowing plaintiff to travel to other parts of the Bay Area. Plaintiff does not explain why he did not ask Judge Dondero to review the condition that supposedly went so far as to prevent plaintiff from "even say[ing] `hello' to his mother" (Opp. 6). Any challenge to that specific restriction (if it existed) could and should have been raised in that state-court proceeding. The matter cannot be relitigated now in federal court. See, e.g., Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).

Notwithstanding the foregoing, plaintiff maintains in opposition that he was denied the right to call his mother, who was named as a co-defendant in the underlying state prosecution. He was deprived of the right to "even say `hello' to his mother" (Opp. 6). The allegations are conclusory and do not give rise to a triable issue of fact. The Court has combed through the record (although it is not obligated to do so on summary judgment) for any evidence to support plaintiff's contention that he was not allowed to call his mother on the telephone or otherwise communicate with her or his siblings. There is no such evidence.

The parties here took the deposition of Bryan Balch of Linda Connelly Associates, which assists in the implementation of the city's home-detention program. Mr. Balch was designated as the agency's person most knowledgeable of the circumstances surrounding plaintiff's pretrial release. Mr. Balch was asked by plaintiff's counsel whether there was anything in plaintiff's file to indicate that he had been restricted from talking with his mother. He said "No, there's nothing" (Balch Dep. 44). There was nothing that "precluded [plaintiff] from picking up the phone and calling his mother" ( ibid.). This order finds that no reasonable jury could find in plaintiff's favor on this issue.

B. The Right to Seek Employment or Education.

Plaintiff also contends he was precluded from working or going to school while on home detention. All parties agree that Judge Dondero did not impose such a condition when he ordered plaintiff's pretrial release on December 23, 1997. Plaintiff's contention, however, is that this restriction was unilaterally imposed by the sheriff's department. The restriction was then purportedly implemented by Linda Connelly Associates. The following relevant facts give context to the claim.

Plaintiff points to a letter dated January 11, 1999, prepared by Jon Johnson, the assistant program director at Linda Connelly Associates. The letter was written to Magdelene Lee, plaintiff's social worker (Tene Dep. 37). The letter provided that:

This letter is to verify that Mr. Ted Tene is on home detention per the San Francisco Sheriff's Department. Mr. Tene began the home detention program on 12/31/97. Mr. Tene's release date is unknown due to his pre-trial status. Per the San Francisco Sheriff's Department, Mr. Tene is not allowed to work or attend any type of schooling while on home detention.

(Balch Dep. Exh. 11) (italics added). Based on his experience, Mr. Balch testified that the subject restriction was not normal but that the agency "had clients that haven't been allowed to go to school or go to work, for whatever reasons the Sheriff deems appropriate" ( id. at 30).

Plaintiff purports to have seen the letter at issue although it is by no means certain at what time. When asked this question at deposition, plaintiff responded "I guess, if this is the time he handed it over to me, where it's dated January 11, '99" (Tene Dep. 48-49). Mr. Johnson purportedly gave the letter to plaintiff so he could give it to Ms. Lee ( id. at 49). Assuming plaintiff saw the letter in January 1999, he had been on home detention for over a year. He was 28 years old at the time.

Plaintiff looks additionally to an item from his file with Linda Connelly Associates. A slip of paper dated December 30, 1997, stated "24 Hour Detention" and referenced plaintiff as a "client" of the agency (Balch Dep. Exh. 14). Mr. Balch testified that the document came from the "Sheriff's Office" ( id. at 41). This was the only evidence in plaintiff's file Mr. Balch was aware of that suggested that the "Sheriff said [plaintiff] could not work or attend any type of schooling" ( id. at 40). Since plaintiff was to remain at home 24 hours a day, he could not leave the house "unless there was some provision such as to go shopping on a certain day for a certain amount of period of time" ( id. at 41).

Against these facts, plaintiff argues "it is clear that the defendants also violated plaintiff's constitutional rights under the 14th Amendment to earn a living or obtain an education" (Opp. 7-8). This order disagrees. Just because the condition existed does not mean that it resulted in a violation of plaintiff's due process rights.

Defendants object to the letter of January 11, 1999, as hearsay. They contend that "The letter from Jon Johnson . . . contains an out of court statement made for the truth of the matter asserted, namely, that `Per the San Francisco Sheriff's Department, Mr. Tene is not allowed to work or attend any type of schooling while on home detention.'" The objection is OVERRULED. For the various reasons explained herein, plaintiff cannot recover in this case even if the condition existed.

The parties in this case engaged in discovery as to the circumstances surrounding this condition. At deposition, plaintiff testified that he had completed the fifth grade and then stopped going to school many years earlier (Tene Dep. 16). In 1996, when he was 26 years old, plaintiff attended San Francisco City College for about six or seven months ( id. at 16-18). He wanted to obtain his general equivalency degree but failed to do so ( id. at 18). Any evidence related to plaintiff's education (or pursuit thereof) stops here, however. The home detention commenced in December 1997 and lasted until June 1999. There is nothing in the record to suggest that plaintiff in fact did not go to school while on home detention. Plaintiff further did not submit any facts to give rise to an inference that he wanted to go to school during the relevant time but was actually prevented from doing so as a result of the subject condition. He was asked a series of questions on the subject at deposition. Defense counsel asked whether plaintiff had completed any applications to attend school during the time of detention ( id. at 39). Plaintiff was asked whether he had any offers of acceptance to attend school ( ibid.). He was asked whether he had any plans of attending school while in detention ( ibid.). Plaintiff asserted the Fifth Amendment privilege against self-incrimination to each and every question ( ibid.).

Plaintiff took the same approach when asked questions about his employment status. Plaintiff asserted the Fifth Amendment when he was asked by defense counsel whether he had applied for a job while on home detention ( id. at 40). He did the same in response to the question whether he had any job offer outstanding during the period of detention ( ibid.). For the reasons explained more fully below, this strategy does not entitle plaintiff to some form of leniency at this stage.

There is similarly nothing in the record to suggest plaintiff had a job prior to his detention and then lost it when the detention program began. Viewing the evidence in plaintiff's favor, he learned of the work restriction on January 11, 1999, when Mr. Johnson gave him the letter so providing. Plaintiff had been on home detention for about a year by that time. He does not submit facts to show that he had to give up work once the condition was imposed. There is additionally no indication that plaintiff did not work while he was detained. Presumably, there exists some record to show how plaintiff performed while on pretrial release. A record, for instance, to show whether plaintiff was indeed home 24 hours a day from late 1997 to mid-1999. It would have been most helpful to have seen such a file. But this area of evidence was wholly neglected. Without more, it is difficult to see how a reasonable jury could find for plaintiff, even viewing the evidence in his favor.

* * *

As to the manner in which the condition restricting plaintiff's ability to work or go to school was imposed, plaintiff still cannot prevail. The argument is that the sheriff's department imposed the condition unilaterally without notice and an opportunity to be heard. But plaintiff fails to explain why, if this allegation is true, he did not seek relief from Judge Dondero, who originally reduced plaintiff's bail and set various conditions of pretrial release. The judge had granted such relief on at least one occasion when he amended the travel restriction to allow plaintiff to travel outside of San Francisco but within the Bay Area.

Taking his story as true, plaintiff learned that he would not be allowed to attend school or go to work in January 1999. (The record does not support any notice prior to this time.) The criminal charges were dismissed in June 1999. In this six-month period, plaintiff did nothing to bring the matter to Judge Dondero's attention (or apparently the attention of anyone else). Plaintiff was represented in the state action by defense counsel, who presumably was well informed of the procedure available to contest the appropriateness of the terms and conditions of plaintiff's release. It was plaintiff's state defense counsel who had made the original motion to reduce plaintiff's bail to $25,000. For reasons unexplained, counsel did not challenge the instant condition. Plaintiff's silence can only be viewed as acquiescence. Only after the fact has plaintiff argued that he was entitled to some form of notice and hearing on the issue. That the sheriff's department may have ordered that plaintiff be prohibited from working or going to school does not alter the outcome. At all relevant times, Judge Dondero was available to address plaintiff's concerns. Plaintiff sought no relief. Defendants' motion for summary judgment on plaintiff's federal due process claim under Section 1983 is GRANTED. C. The Pendency of the State Criminal Action and Plaintiff's Assertion of the Fifth Amendment to Discovery Do Not Warrant a Stay.

As mentioned, plaintiff has invoked the Fifth Amendment in response to discovery propounded by defendants in this case. Plaintiff's counsel here alleges that plaintiff's criminal attorney has instructed plaintiff to assert the privilege in light of the pending state criminal proceeding (Morgan Decl. ¶ 12). Asserting that "[o]nce the criminal case is resolved, the 5th Amendment assertions are not as significant and may be waived wholly or in part," plaintiff urges that this civil proceeding be stayed until the completion of the criminal trial ( ibid.). The criminal trial is presently scheduled to commence on October 15, 2004. This order DENIES the motion to stay this case.

The privilege against self-incrimination, of course, may be raised in civil as well as in criminal proceedings and applies not only at trial but also during the discovery process. United States v. Balsys, 524 U.S. 666, 672 (1998). The privilege may be asserted by a witness who fears prosecution by either federal or state authorities. Ibid. A party to a civil proceeding, however, has no absolute right not to be forced to choose between testifying in the civil matter and asserting his Fifth Amendment privilege. Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995). Moreover, invoking the privilege in a civil case is not without consequence. For instance, adverse inferences may be drawn from a party's invocation of the Fifth Amendment in a civil proceeding (as opposed to a criminal case). SEC v. Colello, 139 F.3d 674, 677 (9th Cir. 1998). Defendants here do not suggest that plaintiff's invocation of the Fifth Amendment should amount to an admission of a total absence of proof.

Rather, the question is whether this civil case should be stayed pending the resolution of plaintiff's criminal trial. Whether to stay a civil proceeding lies within the discretion of the district court. Keating, 45 F.3d at 324. The decision should be made in light of the particular circumstances and competing interests involved in the case. Federal Sav. Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989). The district court should consider a number of factors, none of which is determinative, including: (1) the interest of the party not asserting the privilege in proceeding expeditiously with the litigation and the potential prejudice to that party of a delay; (2) the burden, if any, on the party asserting the privilege of going forward; (3) the convenience of the court in the management of its cases and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; (5) the interest of the public in the pending civil and criminal litigation; and (6) the extent to which the party's Fifth Amendment rights are implicated. See Keating, 45 F.3d at 324-25.

Applied here, the scales tip substantially in favor of denying the requested stay. Plaintiff is the one who commenced this civil litigation. By filing suit, plaintiff assumed the responsibility of proving through admissible evidence the serious allegations of his complaint. This is not a situation where plaintiff has been haled into this Court involuntarily as a defendant and presented with the dilemma of having to choose between asserting or waiving his Fifth Amendment rights. Plaintiff instead voluntarily invoked the procedures of this Court. To make him waive his Fifth Amendment rights in this civil case (or be exposed to certain consequences for not doing so) does not lead to such an intolerable or unjust result.

On the other hand, by asserting the Fifth Amendment plaintiff has prevented defendants from mounting an effective defense to the claims brought against them. As mentioned, plaintiff has refused to answer questions directed to issues central to his case — e.g., whether he consented to the conditions purportedly imposed by the sheriff's department and whether during the period of home detention plaintiff had plans to attend school or seek some form of employment. The prejudice to defendants here is great.

At the same time, plaintiff has done little to convince the Court that answering the questions posed at his deposition implicated his right against self-incrimination. During the period of detention, there presumably was a regular flow of communication between plaintiff and pretrial services. The agent or social worker assigned to plaintiff's case surely contacted plaintiff at various times to determine whether he was abiding by the terms of his release. Plaintiff presumably did not assert the Fifth Amendment then. To take an example, it is highly unlikely that plaintiff asserted the Fifth Amendment when his case worker called him to verify that he was at home at a certain time or had not traveled outside the Bay Area. There is simply no connection between plaintiff's response to such inquiries and the substance of the underlying criminal charges. Indeed, the issues raised in this civil action are separate and distinct from the alleged criminal activity that occurred some time ago and is the subject of the criminal proceeding. Moreover, at deposition, plaintiff did testify that he had received the letter written by Mr. Johnson to plaintiff's social worker indicating that he could not work or go to school. It is unclear why plaintiff was allowed to answer that question but then was instructed to invoke the privilege when asked whether he had any desire to work or attend school.

However, even if the Fifth Amendment applied, this order finds that there were alternative forms of evidence that could have been made a part of this record to give substance to plaintiff's allegations. That is, there were a number of sources, other than plaintiff's testimony, from which evidence could have been drawn. Plaintiff could have submitted the declaration of a prospective employer who could have testified (under oath) that he received a job application from plaintiff during the time of detention and wanted to hire him. Plaintiff could have produced his file with Linda Connelly Associates, who presumably monitored plaintiff while on detention, so the Court could have determined whether plaintiff actually abided by the conditions of his pretrial release. Mr. Johnson could have been deposed to investigate further how he came to learn that "[p]er the San Francisco Sheriff's Department, Mr. Tene is not allowed to work or attend any type of schooling while on home detention." This evidence would not have been privileged and could have assisted the Court in determining the merits of plaintiff's claims. At bottom, a wealth of information was available and could have been presented but was not.

Plaintiff's counsel suggests that his client should not be held to blame for his assertion of the Fifth Amendment. The argument is that the state prosecutor has been dilatory in bringing the criminal case to trial after the state court of appeals reversed the dismissal of the charges against plaintiff on December 20, 2001. Counsel, however, ignores that plaintiff has a right to speedy trial in the criminal system. In allowing the criminal case to lag as it has, plaintiff has obviously waived his right to such a speedy trial and consented to the delay. To the extent any delay in the state criminal case is the cause of plaintiff's predicament, plaintiff is thus just as much at fault as the prosecutor.

On this motion, defendants have pointed to an absence of facts in the record to support plaintiff's claims. It was plaintiff's burden in opposition to go beyond the pleadings and present disputed facts worthy of a jury trial. Plaintiff had an equal opportunity to conduct discovery and gather evidence to support his claims. He did not do so. There is no need to await the conclusion of the state criminal case. This civil case is nearly four years old. If plaintiff is convicted in state court, that will not bring an end to the criminal action and as plaintiff's counsel suggests automatically give new life to this civil action in light of the appellate proceedings that would surely ensue. Plaintiff's counsel has set forth no persuasive justification for any further delay.

3. THERE IS ADDITIONALLY NO BASIS FOR MUNICIPAL LIABILITY UNDER MONELL.

Plaintiff here seeks to hold the City and County of San Francisco liable based on the actions of the San Francisco Sheriff's Department and Linda Connelly Associates (at the direction of the sheriff's department) in setting and implementing the terms and conditions of plaintiff's home detention. A local municipality, such as a county, may be liable under Section 1983 if the plaintiff can prove that a constitutional violation occurred through "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell v. Dep't of Soc. Services, 436 U.S. 658, 694 (1978). Relevant here, a municipality may be liable for damages under Section 1983 "[i]f the sheriff's actions constitute county `policy.'" See McMillian v. Monroe County, 520 U.S. 781, 783 (1997) (citing Monell, 436 U.S. at 694).

This order has already found that plaintiff has failed to raise a triable issue on the constitutional-violation prong of analysis. This is enough to bring a conclusion to this case. However, even assuming plaintiff could establish that a constitutional violation occurred, he must lose on the policy-or-custom prong. No reasonable jury could find that the city maintained a custom or policy of "punishing" pretrial detainees through home detention without due process of law. Plaintiff does not argue to the contrary. Plaintiff concedes that he cannot establish municipal liability via the traditional showing of a policy or custom. Instead, plaintiff contends in opposition that no such showing of a pattern or practice is necessary and that municipal liability may be imposed for a single decision by a "policy maker" (Opp. 9-10) (italics added).

A single constitutional deprivation ordinarily is insufficient to establish a policy or custom. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (holding that liability for improper custom "may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy"). However, showing a "longstanding practice or custom which constitutes the `standard operating procedure' of the local government entity" is just one way to establish municipal liability. Hopper v. City of Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001). A single decision can indeed lead to municipal liability in two ways. First, the plaintiff may attempt to establish that the individual who committed the constitutional tort was, as a matter of state law, an official with final policy-making authority and that the challenged action itself thus constituted an act of official government policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). Second, the plaintiff may alternatively attempt to prove that an official with final policy-making authority either delegated that authority to, or ratified the decision of, a subordinate. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

Under plaintiff's theory, the "policy maker" in this case was the San Francisco Sheriff's Department. It allegedly imposed the condition that prevented plaintiff from working or attending school while on home detention. It was the same department that ordered that plaintiff be subject to 24-hour home detention. In this connection, plaintiff contends that there "should be no dispute that the home detention program to which plaintiff was assigned was part of the jail system, and in administering the same, the Sheriff was acting on behalf of the City and County of San Francisco, and as such, was a `policy maker'" (Opp. 8-9).

The problem once again, however, is one of proof. Plaintiff makes much of the letter from Mr. Johnson which stated that "[p]er the San Francisco Sheriff's Department, Mr. Tene is not allowed to work or attend any type of schooling while on home detention." Plaintiff, however, merely assumes that the sheriff's department, as an entity, is the sole final authority with respect to issues of home detention. That is not at all clear on this record. The record goes no further to specify who at the sheriff's department issued such a command (if one indeed was made). The sheriff (or any other individual from the sheriff's department) was not made a party to this lawsuit. The above conditions could have been ordered by a rogue deputy and not an individual with final policy-making authority. Plaintiff could have deposed Mr. Johnson to determine if he knew who issued the subject condition. Plaintiff could have deposed someone from the sheriff's department. He did not do so.

To the extent that plaintiff's complaint includes "Doe" allegations, he has not moved to amend to replace any "Doe" defendant with his or her true name. Moreover, the deadline for doing so under the second case management order expired over seven months ago on September 30, 2003.

The record simply fails to reveal who made the decision (beyond the conclusory allegations that it came from the sheriff's department). This distinction is important. It would be insufficient, for example, to merely show that the sheriff may have had discretion to make the decisions at issue. Indeed, just because a particular official — even a policy-making official — "has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion." Ulrich v. City and County of San Francisco, 308 F.3d 968, 985 (9th Cir. 2002) (quoting Pembaur, 475 U.S. at 482-83). The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Ibid. Plaintiff submits nothing one way or the other. In much the same way, plaintiff has failed to meet his burden and produce evidence that would allow a trier of fact to find that an official with final policy-making authority ratified any decision made by a subordinate with respect to plaintiff's home detention.

In light of this void in the evidence, plaintiff's reliance on the Supreme Court's decision in Pembaur is inapposite. The question presented there was whether, and in what circumstances, a decision by a municipal policymaker on a single occasion could result in municipal liability under Section 1983. The Court held that a single decision could give rise to municipal liability in those instances where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. Pembaur, 475 U.S. at 481. The final decisionmaker in Pembaur was the county prosecutor. He had issued a specific order to two deputy sheriffs to forcibly enter the plaintiff's place of business to serve capiases on various employees of the plaintiff, who was under indictment for fraudulently accepting payments from state welfare agents. In marked contrast, plaintiff, on this record, has failed to show that the sheriff's department acted pursuant to a policy or was the policy-making authority with the official and final say on the conditions of his pretrial release.

Similarly unavailing is plaintiff's discussion of Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir. 2001). The court in Streit found that a county sheriff's policy of detaining prisoners scheduled for release while a record search was conducted for outstanding warrants constituted a county administrative function. Under those circumstances, the county could be held liable for the acts of the sheriff and the sheriff's department could be held liable in its own right under Section 1983. Id. at 559, 566. Unlike here, however, there was clear evidence that the sheriff in Streit implemented a departmental policy that perpetuated the jail confinement of inmates who were no longer required to serve time, extending their incarceration beyond their release date, with no other judicial proceedings pending. To distinguish, there is nothing on this summary-judgment record to support a departmental policy.

4. PLAINTIFF CANNOT RECOVER DAMAGES UNDER THE DUE PROCESS CLAUSE OF THE CALIFORNIA CONSTITUTION.

Plaintiff's first amended complaint asserts a violation of the due process clause of the California Constitution. He is barred, however, from seeking monetary damages for an alleged violation of his state constitutional right to due process. Katzberg v. Regents of Univ. of California, 29 Cal.4th 300, 306-29 (2002). In opposition to summary judgment, plaintiff offers no resistance to this conclusion. Summary judgment is GRANTED in defendants' favor on plaintiff's California due process claim.

5. PLAINTIFF IS NOT ENTITLED TO DECLARATORY RELIEF.

Plaintiff also seeks a declaration that defendants' home-detention policy "violate[s] the due process clauses of the United States and California Constitutions, as well as Section 1983 and the equal protection of laws guaranteed by the Fourteenth Amendment" (First Amend. Compl. ¶ 27). This Court previously ruled that plaintiff lacked standing to bring a claim for declaratory relief (Order dated Aug. 29, 2001, at 5 n. 2). That holding was left undisturbed on appeal. It applies with equal force here on summary judgment.

To demonstrate that a case or controversy exists sufficient to satisfy the standing requirement under Article III when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). This case-or-controversy requirement is not satisfied by general assertions or inferences that in the course of their activities parties will be prosecuted for violating valid criminal laws. O'Shea v. Littleton, 414 U.S. 488, 497 (1974). Moreover, standing to seek damages in federal court does not by itself grant standing to pursue equitable relief. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040-41 (9th Cir. 1999).

In the instant case, plaintiff has failed to present any facts to give rise to an inference that there is a "substantial likelihood" he will suffer an injury in the future. Notwithstanding the reinstatement of the criminal charges against him, plaintiff does not assert that he is now on home detention. There is no allegation that he will return to home detention. The conditions of which he complains were imposed in the past. Defendants' motion for summary judgment is GRANTED as to plaintiff's claim for declaratory relief.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is GRANTED. Plaintiff's request that this case be stayed and the trial be continued is DENIED. The Clerk SHALL CLOSE THE FILE.

IT IS SO ORDERED.


Summaries of

TENE v. CITY COUNTY OF SAN FRANCISCO

United States District Court, N.D. California
May 11, 2004
No. C 00-03868 WHA (N.D. Cal. May. 11, 2004)

In Tene, Judge Alsup found explicitly that "the issues raised in this civil action are separate and distinct from the alleged criminal activity that occurred some time ago and is the subject of the criminal proceeding."

Summary of this case from McCormick v. Rexroth
Case details for

TENE v. CITY COUNTY OF SAN FRANCISCO

Case Details

Full title:TEDDY TENE, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, a…

Court:United States District Court, N.D. California

Date published: May 11, 2004

Citations

No. C 00-03868 WHA (N.D. Cal. May. 11, 2004)

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