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Customs & Border Protection Undercover Border Patrol Thugs Terrorize California Neighborhood Killing Valeria Monique Alvarado

Discussion in 'Incidents of Police Abuse, Misconduct, Negligence' started by M, Sep 30, 2012.

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    M Muckraker

    (continued)
    Pursuant to California Labor Code Section 1102.5:

    (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation[, and]

    (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

    Cal. Labor Code § 1102.5 (West 2006). Similar to disparate treatment claims, the burden shifting analysis provided by McDonnell Douglas, asoutlined above, also governs retaliation claims under Section 1102.5. See Patten v. Grant Joint Union High School, 134 Cal. App. 4th 1378, 1384 (2005). In order to establish a prima facie case of retaliation under Section 1102.5, "a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two." Id.

    A. Protected Activity

    Plaintiff alleges that he engaged in several instances of protected activity. First, Plaintiff states that he "reported his concerns of interference with law enforcement activities to his superiors" and that if Plaintiff "had acted as his superiors instructed and disregarded criminal activity or falsified his reports," he would have violated laws pursuant to Section 96.5(a)*fn9 and 137(c)*fn10 of the California Penal Code, as well as Government Code Section 53894.*fn11 (See id. at 6-7.) Further, Plaintiff alleges that he reported his concerns regarding disparate treatment in violation of Government Code § 12940*fn12 and instructions given to other deputies not to provide backup to Plaintiff. (See id. at 7.) Defendants assert that Plaintiff has "no evidence to establish that he ever disclosed a violation of law to Defendants, or that he refused to participate in any activity constituting a violation of law." (See Defs.' Mem. Supp. Mot. Summ. J. at 16.)

    Section 1102.5 "is a whistle blower statute, pure and simple, and is designed to protect an employee from being persecuted from his employer for reporting to government officials what the employee reasonably believes to be some form of illegal conduct." Stiesberg v. State of Cal., 80 F.3d 353, 358 (9th Cir. 1996).*fn13 "To survive summary judgment, [a] plaintiff [is] not required to prove an actual violation as long he reported his 'reasonably based suspicions' of the illegal activity." Love v. Motion Industries, Inc., 309 F.Supp.2d 1128, 1135 (N.D. Cal. 2004) (citing Green v. Ralee Engineering, Co., 19 Cal. 4th 66, 87 (1998)). Additionally, complaints that encompass only "internal personnel matters . . . rather than the disclosure of a legal violation" do not qualify as a protected activity. Patten v. Grant Joint Union High School, 134 Cal. App. 4th at 1385.

    Plaintiff's claim of retaliation for expressing his concerns regarding FEHA violations is discussed above. In his Opposition, Plaintiff alleges that "he protested the lapses in policy and Defendants' failure to honor the foremost directive of a law enforcement officer, which is to uphold the law and protect the public interest." (See Pl.'s Opp'n at 26 (citing Tackett UMF ¶¶ 87, 89, 92, 116-17, 122-24).) Plaintiff alleges that he "complained to Sgt. Tabarez . . . regarding Sgt. King's inappropriate conduct and conflict of interest related to prohibiting Plaintiff from including [a] battery charge in [the] citation against Lackey." (See Tackett UMF ¶ 87.) Plaintiff also states that he "informed Deputy District Attorney Collings about Mr. Lackey's battery upon an officer." (See Tackett UMF ¶ 89.) However, Plaintiff has not stated that he informed the D.A. of any violation committed by Defendants. Plaintiff also states that he "complained that the District Attorney [and] Sheriff conspired not to file charges against Lackey." (See Tackett UMF ¶ 92.) However, Plaintiff again fails to provide any evidence as to the nature of his complaint or of what violations he specifically complained.

    Additionally, Plaintiff states that "he protested that the marijuana investigation was intentionally impeded" by D.A. Otero and through having warned Mr. Mohammed beforehand.

    Tackett UMF ¶ 117 (citing Tackett Dep. 522:6-22; 580:22-581:17.) As Defendants correctly point out, the cited deposition testimony does not state that Plaintiff complained to anyone about the alleged interference. Plaintiff also states that he "protested the change in the Bertussi case handling form and the false accusations brought against Plaintiff," and that "Gary Tackett also sent a letter to Sheriff Carter over these events." (See Tackett UMF ¶ 124 (citing Tackett Decl. ¶¶ 14, 18.; Gary Tackett Dep. 57:12-23, 74:50-75:11, 75:13-77:24; Ex. W.) However, the cited evidence does not reference any specific complaints or to whom such complaints were made.*fn14

    In addition, Plaintiff asserts that he protested the unequal property damage discipline, the unequal back-seat memo, the false probation write-up, the denial of backup, and the code of silence. (See Pl.'s Opp'n at 16 (citing Tackett UMF ¶¶ 28-30, 32, 42, 52-56, 63-69, 138).) However, Plaintiff's evidence almost uniformly fails to indicate that Plaintiff in fact made the alleged complaints or to whom the complaints were made.*fn15 Also, Plaintiff has failed to show that the alleged complaints were based on a violation of law or Plaintiff's unwillingness to engage in any illegal action. Only Exhibit E (Plaintiff's grievance against Sgt. Avila) provides evidentiary support for Plaintiff having actually filed a complaint with County based on an alleged legal violation. (See Ex. E.) However, as described above, Plaintiff has failed to set forth any genuine issue of material fact that he was retaliated against in response to that grievance.

    In response to an interrogatory asking Plaintiff to "state all facts upon which Plaintiff bases the contention that Plaintiff 'reported his concerns' . . . .," Plaintiff stated that he "reported actions by Sergeant Avila to Chief Housouer, Assistant Sheriff Schneewind, Sheriff Carter, and County by filing grievances along with verbally complaining." (See Resp. Interrog. 6; Ex. 5 at 6.) Plaintiff also stated that he "reported illegal or hostile actions by Sergeant Avila and Chief Housouer to Sergeant Tabarez Sr. And Sergeant David Obeso." (See id.) In response to an interrogatory requesting that Plaintiff "state all facts upon which Plaintiff bases the contention that Plaintiff 'expressed his concern that he would be complicit in these crimes if he complied with his superiors orders' . . . .," Plaintiff stated that he "advised Chief Housouer of the perceived problems noted in the federal lawsuit after Plaintiff received memos of actions only targeting him." (See Resp. Interrog. 7; Ex. 5 at 7.) However, Plaintiff has failed to set forth any specific facts indicating what concerns he was reporting or when such reports were made. Additionally, in response to questions regarding Sgt. Avila's alleged order to not conduct probation or parole searches, Plaintiff testified that he was not sure of what the substance of the state or federal law was that he felt was being violated. (See Tackett Dep. 323:14-20.) Plaintiff also testified that he could not recall whether his report to Chief Housouer "put it in [the] context" of a violation of state or federal law." (See Tackett Dep. 323:14-20.)

    Although Plaintiff's Complaint and Opposition to Summary Judgment are far from models of clarity, the Court does not find that Plaintiff has failed entirely to put forth any genuine issue of material fact that he was engaged in protected activity. For example, Plaintiff has shown that he filed a grievance with Chief Housouer based on the alleged discrimination and retaliation by Sgt. Avila. (See Ex. E.) However, Plaintiff's evidence almost uniformly fails to demonstrate that Plaintiff in fact made the alleged complaints, to whom the complaints were made, or the specific concerns about which Plaintiff was allegedly complaining.

    B. Adverse Employment Action and Causal Link

    Plaintiff alleges that he suffered adverse employment actions including: property damage write-ups, "back seat restriction," work hour violation, probation write-up, the denial of backup, investigations, and the Defendants' alleged encouragement of other officers to bear false witness against Plaintiff. (See Pl.'s Opp'n at 16 (citing Tackett UMF ¶¶ 27, 33-41, 47-51, 62-73, 90-91, 95-96, 101, 127-28, 131, 150).) In California, an employee seeking recovery on a claim of retaliation must show she suffered an adverse employment action that "materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity." Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1051 (2005); see also Patten,134 Cal. App. 4th at 1388 (applying the "materiality" test to claims under Section 1102.5).

    As described above, Plaintiff has failed to show any adverse action based on Sgt. Avila's memo regarding Plaintiff's use of the back seat in stops. In fact, Plaintiff mischaracterizes Sgt. Avila's memo as prohibiting Plaintiff from placing suspects in the back seat of the patrol car under any situation. Additionally, Plaintiff has failed to show that the alleged "work-hour" violation constitutes an adverse employment action that materially affects the terms or conditions of his employment.*fn16 With respect to Plaintiff's allegation that Defendants issued an order not to provide him with backup, Plaintiff fails to put forth any evidence that such an order was given or that he was placed in a situation where backup failed to show due to Defendants' alleged order. Plaintiff states that "Deputies such as J.L. Lopez were specifically told to stay away from Plaintiff." (See Tackett UMF ¶ 64.) Even assuming Plaintiff's evidence does not constitute inadmissible hearsay, Plaintiff also fails to state who allegedly told Lopez to "stay away" from Plaintiff. Additionally, Plaintiff's cited deposition testimony indicates that there was one incident "where [he] felt response was slow" and that he just had a "personal feeling" that the slow response was due to an order by the Department. (See Tackett Dep. 469:5-24.) In sum, Plaintiff has failed to show that he was in fact ever threatened with no backup or an incident where backup failed to show. Plaintiff also failed to provide support for his contention that his peers were encouraged to "bear false witness against him," that his peers ever falsely testified against him, that they were threatened for supporting him, or how this adversely affected Plaintiff's employment.

    While the Court finds that the discipline for property damage, and the probation and suspension of Plaintiff do constitute adverse employment actions, Plaintiff has failed to put forth any evidence that such actions were causally linked to Plaintiff's engagement in protected activity. First, Plaintiff has failed to put forth any facts showing a temporal connection between the actions. Plaintiff simply states that the "retaliatory write-ups of Plaintiff closely followed his engagement in protected activity." (See Pl.'s Opp'n at 16.) However, Plaintiff does not put forth any facts showing a close time-frame, such as dates or length of time between his alleged protected activity and the adverse actions. Additionally, Plaintiff has failed to show that Sheriff Carter, who was the final decision maker with respect to the disciplinary actions taken against Plaintiff, ever knew that Plaintiff engaged in any protected activity under Section 1102.5. See Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000) (See Exs. 7, 13, 21, 27; see Carter Decl. ¶ 12.) In addition, Plaintiff testified that he did not feel he was the victim of retaliation relating to "the drug bust" (see Tackett Dep. 420:9-12) and that he did not feel that the notice of termination stemming from the "Bertussi incident" was given because he complained about any violation of state or federal law (see Tackett Dep. 436: 21-437:5). Plaintiff has therefore failed to show a causal connection between the alleged protected activity and the adverse employment actions.

    Plaintiff has, thus, failed to set forth a prima facie case of retaliation pursuant to Section 1102.5. However, even assuming that Plaintiff was able to meet this initial burden, Defendants have, nevertheless, provided legitimate and nondiscriminatory reasons for the disciplinary actions.

    C. Legitimate, Nondiscriminatory Reasons and Pretext

    Even assuming that Plaintiff has established a prima facie case, which he has not, Defendants have articulated legitimate, nondiscriminatory reasons explaining why Plaintiff was subjected to departmental discipline. Defendants have provided evidence through disciplinary documentation and investigation reports detailing legitimate reasons for Defendants' disciplinary action against Plaintiff. (See Exs. 7, 8, 10, 12, 13, 17, 21, 24, 27, 29, 33.) Defendants' articulated legitimate reasons for Plaintiff's discipline include: several instances involving damage to his patrol vehicle, and instances where Defendants found that Plaintiff had failed to follow orders and proper protocol, such as in the "Lackey," "Bertussi," and "Macias" incidents, as provided in detail above. Once a defendant has provided a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the plaintiff to show that the proffered reason is actually a pretext for retaliation. See Patten, 134 Cal. App. 4th at 1384. However, "[a]n employee in this situation can not 'simply show the employer's decision was wrong, mistaken, or unwise," but "[r]ather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence.' " Morgan, 88 Cal. App. 4th at 75 (citations omitted). Additionally, "[c]ircumstantial evidence of 'pretense' must be 'specific' and 'substantial' in order to create a triable issue with respect to whether the employer intended to discriminate on an improper basis." Id. at 69 (citing Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)).
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    Here, Plaintiff has failed to produce any specific, substantial evidence of pretext to uphold his claim of unlawful retaliation. Plaintiff again states that he "was the only deputy forbidden from placing suspects in the back seat of his patrol vehicle" and that other peers suffered no or little discipline for damaging their vehicles. (See Pl.'s Opp'n at 16.) However, as stated above, Plaintiff has failed to put forth any evidence that he was singled out or that his peers suffered little or no discipline for incidents occurring under similar circumstances. With respect to the "Lackey incident," Plaintiff alleges that he "received reprimand even though his actions in this event were in conformity with County policy." (See id. at 17.) In support of this contention, Plaintiff states that in Sgt. Tabarez' opinion it is never permissible for a suspect to strike an officer. (See id.) However, Plaintiff only cites to his attorney's declaration in support and fails to provide a citation to Sgt. Tabarez' purported testimony. (See Tackett UMF ¶ 83-84.) Additionally, even if Sgt. Tabarez had testified as such, Plaintiff still fails to show how he proceeded in conformity with proper procedures or how he was issued greater discipline.

    Plaintiff also asserts that the "Mohammed incident" is another example of pretext and that Plaintiff's actions "solidified his reputation as a whistle blower and those close to him advised him to "leave it alone." (See Pl.'s Opp'n at 17.) However, Plaintiff fails to show any connection between his actions in this incident and any resulting adverse employment action indicative of pretext. Plaintiff also relies on his description of the "Betrussi incident" to show that Defendants' actions were pretextual. (See id.) Plaintiff states that "[t]he manner in which the case handling form was mysteriously changed . . . is yet another example of how the County treated individuals differently . . . ." (See id.) Plaintiff also states that it was "disturbing" how Under Sheriff Jerigan pursued the internal affairs investigation while the criminal matter was still pending and a fellow deputy was asked to give an untrue statement and to "just give us Tackett." (See id.) However, Plaintiff only cites to uncorroborated and inadmissible hearsay*fn17 Tackett UMF ¶ 127) or to his attorney's declaration rather than the location of the purported testimony (see Tackett UMF ¶ 132). Plaintiff also fails to provide support, besides rehashing conclusory allegations and citation to unauthenticated documents, for the fact that the investigation was in violation of departmental policy. (See Tackett UMF ¶¶ 96, 124 .)

    Plaintiff also states that "County's self-initiated investigation of the Macias matter" was in violation of policy since there was no complaint on file. (See Pl.'s Opp'n at 17.) However, Plaintiff only relied on a statement allegedly made by Sheriff Carter in an unidentified newspaper article on an unknown date. (See Tackett UMF ¶ 95.) Nevertheless, Plaintiff fails to show how having no complaint on file constitutes circumstantial evidence of pretext or how this casts doubt on the investigation and its findings. Plaintiff also fails to provide any factual foundation of personal knowledge of his contention that Deputy Lindberg was "proposed for termination after he affirmed that Plaintiff properly obtained consent from Macias" and was then "miraculously rehired." (See Pl.'s Opp'n at 17.) Plaintiff also fails to provide support for his contention that "it was well known within the force that Plaintiff was being targeted and anyone who supported him was deemed to be against the County and thereby targeted for retaliation as well." (See Pl.'s Opp'n at 18 (citing Tackett UMF ¶¶ 70-73, 127, 128, 150).) Plaintiff again relies on hearsay (see Tackett UMF ¶¶ 127, 150) and fails to provide a citation to the purported testimony by Sgt. Tabarez (see Tackett UMF ¶¶ 72-73). Nevertheless, Plaintiff does not provide any evidence to cast doubt on the specific disciplinary actions and investigations conducted by the department against Plaintiff. Plaintiff also states that there is "evidence of corruption," but fails to show how such alleged corruption provides evidence of pretense as to Plaintiff's discipline. (See Pl.'s Opp'n at 18.)

    Plaintiff also points to his reputation and work history as a good officer. (See id.) Plaintiff states that Sgt. Avila, Sgt. King, Sgt. Tabarez, Chief Housouer, and Sheriff Carter "all agreed that Plaintiff Tackett was an energetic and dedicated officer, who had a high arrest rate, was above average as compared to his peers, [and] performed 50% more traffic stops than his peers." (See id. (citing UMF ¶¶ 6-10).) Even assuming that Plaintiff's proffered evidence is admissible, Plaintiff has still failed to show how this casts doubt on the lengthy disciplinary findings and investigations brought against Plaintiff. While Plaintiff continually points to his "high arrest rate," he does not show how this high arrest rate would make his being legitimately disciplined implausible or inconsistent. Plaintiff also alleges that "Sheriff Carter stated that the discipline against him 'had nothing to do with anything he did.' " (See id. (citing UMF ¶ 157).) However, Plaintiff cites to the deposition of Mary Tackett who stated that Sheriff Carter had made the statement to her, could not remember when such statement was made to her, and failed to provide a factual foundation for what "discipline" Sheriff Carter was referring. (See Mary Tackett Dep. 48:2-49:15.) Lastly, Plaintiff questions how he could have been faulted with policy infractions if there was no policy manual in effect. (See Pl.'s Opp'n at 18.) However, Plaintiff does not show or allege that without such a manual he was unable to determine whether the actions for which he was suspended were against policy. In fact, Plaintiff cites to an unauthenticated deposition testimony by Sgt. Avila, where Sgt. Avila states that he relied on Academy training and experience and that officers were sent for further training during their career. (See Avila Dep. 25:12-23.)

    Therefore, the Court FINDS that Plaintiff has failed to show that Defendants' legitimate and nondiscriminatory reasons were pretextual.

    D. Constructive Discharge

    Plaintiff also alleges that he was constructively discharged by Defendants through their refusal to provide him with backup and their "relentless mission to silence his protest of governmental misconduct." (See Pl.'s Opp'n at 18-19.) "[T]he standard by which a constructive discharge is determined is an objective one-the question is 'whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.' " Colores v. Bd. of Trs., 105 Cal. App. 4th 1293, 1305 (2003) (quoting Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1248 (1994)). Furthermore, "n order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." Id. (quoting Turner, 7 Cal. 4th at 1248). And, "[f]or purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees." Id.

    In support of his claim for constructive discharge, Plaintiff again alleges that he was refused backup, that other deputies were retaliated against for supporting Plaintiff, that he was treated disparately, and was issued writeups and investigations conducted in retaliation for his complaints and refusal to participate in illegal conduct. (See Pl.'s Opp'n at 18-19.) As described above, Plaintiff has failed to provide any evidence that he was threatened or actually denied backup or that he was treated disparately. Plaintiff has failed to show that others were threatened or retaliated against for supporting Plaintiff. Additionally, Plaintiff has not shown that any of the investigations or disciplinary actions were retaliatory.

    Plaintiff has thus failed to put forth any genuine issue of material fact that he was "faced with the allegedly intolerable employer actions or conditions of employment" or that Defendants intentionally permitted such alleged actions. Therefore, the Court FINDS that Plaintiff has failed to establish a claim for constructive discharge.

    Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claim of wrongful termination and retaliation in violation of California Labor Code Section 1102.5 and public policy.*fn18

    42 U.S.C. 1983 Claim

    Defendants also move for summary judgment on Plaintiff's Section 1983 claim as inadequate as a matter of law. (See Defs.' Mem. Supp. Mot. Summ. J. at 19.) Plaintiff's Complaint alleges that "County, under color of authority of statute, ordinance, regulation, custom, usage and/or of the State, caused [Plaintiff] to be deprived of his rights, privileges and immunities secured by the Constitution and other laws." (FAC at 10.) As Defendants correctly point out, Plaintiff fails to specify in the Complaint which constitutional rights have been violated. (See Defs.' Mem. Supp. Mot. Summ. J. at 19th; see generally FAC at 10-11.) However, in his Opposition, Plaintiff states that "he waives his claim that County violated his rights under 6th, 7th, 8th, and 13th [sic] amendments" and he now focuses on "County's violation of his [sic] amendment rights to engage in free speech."*fn19 (See Pl.'s Opp'n at 22.) For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's Section 1983 claim for a First Amendment violation.

    Generally, to state a claim under Section 1983 , "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law." West v. Atkins, 487 U.S. 42, 47 (1988). A municipality can be sued under Section 1983 for monetary, declaratory, and injunctive relief if an official policy statement, ordinance, regulation, decision officially adopted, or custom is responsible for the deprivation of a constitutional right. Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 690 (1978). Municipalities are only liable for acts it "officially sanctioned or ordered." City of St. Louis v. Praprotnik, 485 U.S. 112, 123-24 (1988). Moreover, a city cannot be held liable for constitutional torts committed by an employee under the theory of respondeat superior. Monell, 436 U.S. at 691.

    The Supreme Court has concluded that decisions by subordinate employees do not necessarily reflect official policy. Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992) (citing St. Louis v. Praprotnik, 485 U.S. 112 (1988)). Moreover, evidence of one incident of unconstitutional activity is not sufficient to impose Section 1983 liability, unless there is proof that the incident was caused by an unconstitutional municipal policy attributable to a municipal policy maker. City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) (emphasis added). The existence of an unconstitutional policy and its origin must be separately established and proven.

    Additionally, the policy must be the "moving force" behind the constitutional violation. Monell, 436 U.S. at 694; Polk County v. Dodson, 454 U.S. 312, 326 (1981). In other words, to establish liability under Section 1983 against the County, Plaintiff must show that (1) he was deprived of a constitutional right; (2) the County had a policy; (3) the policy "amounts to deliberate indifference" to Plaintiff's constitutional rights; and (4) the policy was the "moving force" behind the deprivation of Plaintiff's constitutional rights. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). Furthermore, in order "to establish a First Amendment Claim against a public employer [the employee must show that]: (1) The employee engaged in constitutionally protected speech, (2) the employer took adverse employment action against the employee, and (3) the employee's speech was a 'substantial or motivating' factor in the adverse action." Freitag v. Ayers, -- F.3d --, 2006 WL 3110975 at 11 (9th Cir. 2006) (citing Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)).

    A. First Amendment Violation

    In his Opposition, Plaintiff alleges that he engaged in a protected activity under the First Amendment by making "internal complaints on matters of public concern." (See Pl.'s Opp'n at 22.) Plaintiff further alleges that he "sounded the alert to police misconduct in covering up the crimes of friends and family." (See id.)

    "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Garcetti v. Ceballos, 126 S.Ct. 1951, 1958 (2006) (citing Waters v. Churchill, 511 U.S. 661, 671 (1994)). However, the Supreme Court has recognized that "a citizen who works for the government is nonetheless a citizen" and the "First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.

    . (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)). The underlying premise of public employee-speech jurisprudence has been that "while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance." Id. at 1959 (citing Connick v. Meyers, 461 U.S. 138, 154 (1983)).

    In Garcetti, the Supreme Court recently held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960. The Supreme Court found that a deputy district attorney "did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. Id. Accordingly, in the present case, the controlling factor is whether Plaintiff made his statements pursuant to his duties as a deputy sheriff. See id. at 1659-60; see also Freitag v. Ayers, -- F.3d --, 2006 WL 3110975 at 13 (9th Cir. 2006) (remanding to district court to determine whether making a complaint regarding prison conditions "all the way up to the Director of [the California Department of Corrections] at the state capitol" is within the official duties of a correctional officer). However, whether an employee expressed her views inside the office rather than publicly or whether the employees expression concerned the subject matter of her employment is not dispositive. See Garcetti, 126 S.Ct. at 1959.

    Here, Plaintiff alleges that he made the following "internal complaints": 1) complaining to Sgt. Tabarez regarding Sgt. King's inappropriate conduct and conflict of interest related to prohibiting Plaintiff from charging Mr. Lackey; 2) informing the deputy district attorney about Mr. Lackey's charges; 3) protesting how the investigation was handled by the district attorney in Mr. Mohammed's case*fn20; 4) protesting the handling of Mr. Bertussi's case and the false accusations brought against Plaintiff*fn21; and 5) complaining to Chief Deputy Sharon Housouer regarding an alleged "code of silence" and a grievance against Sgt. Avila. (See Pl.'s Opp'n at 22 (citing Tackett UMF ¶¶ 87, 89, 92, 116-17, 122-24, 138).) Plaintiff argues that "[f]iling a grievance and calling to attention his supervisors' illegal actions are not part of Plaintiff's normal every day job duties." (See id.) Defendants counter that "[t]hese 'complaints' concern matters that Plaintiff was required to perform such as charging suspects, submitted cases to the District Attorney and investigating drug cases." (See Defs.' Reply at 7.)

    As in Garcetti, Plaintiff's internal grievances concerning the mishandling and interference with cases do not constitute protected activity since he was not speaking as a citizen. Plaintiff has additionally not set forth any evidence that such actions were not part of his job description. Furthermore, it is clear to the Court that a police officer is required to protest improperly made investigations and inform district attorneys of charges against suspects.

    However, Defendants have not shown that deputies are required to air complaints about the alleged "code of silence." Additionally, the Court does find, as described above, that Plaintiff's grievance against Sgt. Avila constitutes protected speech. (See Ex. E.)

    However, even assuming that Plaintiff's conduct was protected, Plaintiff has failed to put forth evidence establishing a genuine issue of material fact as to whether "the employee's speech was a 'substantial or motivating' factor in the adverse action." See Freitag,-- F.3d --, 2006 WL 3110975 at 11 (9th Cir. 2006) . As described above, Plaintiff has not set forth evidence showing that Sgt. Avila or Sheriff Carter knew that Plaintiff had engaged in protected activity or specific facts indicating a temporal connection. Additionally, as described above, Defendants have provided evidence that there were legitimate and nondiscriminatory reasons for imposing the disciplinary action on Plaintiff.

    Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's Section 1983 claim for a First Amendment violation.

    Intentional Infliction of Emotional Distress

    Defendants also move for summary judgment on Plaintiff's claim that he was subject to IIED. (See Defs.' Mem. Supp. Mot. Summ. J. at 24-25.) In order to establish a prima facie case of IIED, a plaintiff must prove: "(1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by plaintiff; and (3) plaintiff's emotional distress is actually and proximately the result of defendant's outrageous conduct." Conley v. Roman Catholic Archbishop of San Francisco, 85 Cal. App. 4th 1126, 1133 (2000). Additionally, "[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id.

    Here, Plaintiff has failed to put forth any genuine issue of material fact that Defendants acted with extreme or outrageous conduct with the intent to cause (or even reckless disregard for the probability of causing) emotional distress. In his Opposition, Plaintiff again alleges that he was treated disparately as compared to his Latino peers and those willing to overlook illegalities; that he "endured months of harassment, contrived discipline, and [second] guessing; that Defendants threatened not to and failed to provide backup; and that other deputies were asked to "give Tackett up." (See Pl.'s Opp'n at 24-25.) However, as described above, Plaintiff has failed to provide any evidence to establish a genuine issue of material fact as to the allegations of discrimination, failure to provide backup, or retaliation. Therefore, Plaintiff has failed to set forth a prima facie case of IIED.

    Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claim of IIED.

    Conclusion

    For the reasons set forth above, the Court GRANTS Defendants' Motion for Summary Judgment as to all of Plaintiff's claims.

    IT IS SO ORDERED.
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    Last edited: Dec 25, 2013
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    Just noticed this in one of the stories from late Friday -- the very existence of a warrant is now in question.

    NBC Los Angeles: Alvarado Family Demands Name of Shooter, Police Deny Request

    “It’s come to our attention that now there’s contradictory information and that there was no warrant in hand. That’s contradictory information. I don’t know which is true,” [attorney Eugene] Iredale said.

    An NBC 7 request for the affidavit used to obtain the search warrant was unanswered by Border Patrol Friday evening. The agency also did not respond to a request for information about the courthouse, department and judge who signed the search warrant.

  5. nachtnebel

    nachtnebel Original Member

    murder. murder and a coverup. by a known, repeat offender against 4th Amendment civil liberties.

    This fellow needs to go down before he kills someone else.
    Elizabeth Conley likes this.
  6. jtodd

    jtodd Original Member

    +1
  7. Frank

    Frank Original Member

    That's why the name is not being released. _______________________
  8. M

    M Muckraker

    You mean Justin Tackett? The Fed Cops blog has had record hits the last 4 days. Surprisingly it's the threads containing that name that are getting most of the attention. :)

    Anyone who reads either this article or this article could figure it out by spending five minutes (or less) of quality time with Google.

    This article even included his photo with the face blurred.

    Both TV stations have had crews knocking on his door.

    The pressure's on. :D
  9. M

    M Muckraker

    So what do I do with this bozo's address?

    Anyone spending a weekend in the San Diego area who can spend 20 minutes doing some research? :D
  10. nachtnebel

    nachtnebel Original Member

    hmm. I was referring to the legal system. this behavior has to be punished by the legal system to be a real deterrent. extra legal means would just be a one-offed, although it might be poetic justice. The fellow shot the woman in cold blood, according to witnesses.
  11. M

    M Muckraker

    More likely anyone who tries will end up as his next victim. Remember you're dealing with a well-trained (at least in the killing department, probably lacking in intellectual/cognitive skills) gunman who's already bagged a mother of five, and who knows what other victims he's already abused or killed as a Border Patrol agent. The Border Patrol manages to keep the name of most of its killers secret.

    If you read the summary dismissal in Tackett v. County of Imperial, you'll get a pretty clear picture of a sociopath with no empathy for his victims and little appreciation for the legal and constitutional requirements of his job.
    Elizabeth Conley likes this.
  12. M

    M Muckraker

  13. M

    M Muckraker

    A regional paper has picked up the Union-Tribune story & added some material ...

    With his background in Imperial County, he's probably toast in any civil proceeding. The lawsuit he filed (and lost) against Imperial County will also be a gold mine for the victim's attorney -- there's a file of 1400 pages available. That will save them a lot of discovery effort in probing into his background.

    Imperial Valley Press Online: Claim filed by woman killed by Border Patrol agent; agent is former Imperial Valley deputy

    Tackett was a Sheriff’s Department court bailiff and patrol deputy from January 2000 through December 2003. The next year, he filed suit against the county and the department, alleging wrongful termination, racial discrimination, retaliation for being a whistle-blower and intentional infliction of emotional distress.

    He alleged his supervisors retaliated when he tried to pursue crime cases against friends, relatives or campaign contributors of sheriff’s officials and the county Board of Supervisors.

    He further alleged he was denied promotions and transfers because he is white. He also said other deputies were told to not back him up if he radioed for help.

    Tackett’s suit said he was forced to resign “or else risk dying on the job” and because of the department’s “relentless mission to silence his protest of governmental misconduct.”

    The county countered that Tackett showed unprofessional conduct, dishonesty, insubordination and incompetence on the job.

    Court records show the Sheriff’s Department suspended Tackett two of the five times he crashed a patrol car on duty and once after an altercation with a Brawley resident. In 2002, the department said he was suspended for 30 days for lying to supervisors over an incident involving a probation search.

    In 2003, a county prosecutor rejected one of Tackett’s drug arrests, saying the number of times the deputy violated the suspect’s rights were “almost too numerous to list.” The deputy was issued a termination notice after that incident, but he quit before being fired.

    Tackett lost his wrongful termination case two years later without going to trial. A federal judge in San Diego entered a judgment in favor of Imperial County and the Sheriff’s Department, saying the deputy’s lawsuit had failed to provide evidence of his claims.
  14. M

    M Muckraker

    Just an observation, but if you look at Tackett's past behavior in Imperial County and then transpose Tackett the deputy to the Chula Vista incident ...

    They had no warrant for her (possibly no warrant at all, apparently they've yet to produce one), yet Tackett & Co. were hassling her in the parking lot & obstructing her departure. Has this bozo learn anything since his misbehavior as an Imperial County deputy?
  15. RB

    RB Founding Member

    Mike I know and do not challenge your policy on posting addresses and such but doesn't a guy like this sure make a strong case for exceptions to policy?
  16. M

    M Muckraker

    Not here.

    Plus I haven't been able to confirm the address -- it's an apartment, no county tax records available for verification.

    The local media in southern California are gradually picking up this latest revelation. Let's see where they go with it.
  17. nachtnebel

    nachtnebel Original Member

    This is exactly the case where the policy should not be relaxed, because the case is so incendiary. Someone could conceivably use it to do this person harm. I think this bozo is in dead serious trouble and quite likely to be headed for jail for a very long time. Let him stew in his own juice.
  18. M

    M Muckraker

    The address is out there on the internet for anyone to find but it still took me a while to stumble on it -- no five-minute Google searches for it.

    I'm more concerned that someone would show up at his door to protest & end up receiving his next nine rounds.

    He'll get creamed in the civil suit, but I'm not optimistic that he'll ever end up in jail.
  19. RB

    RB Founding Member

    I tried to be clear I wasn't suggesting a change of policy. There are lots of times that I don't do things that I would dearly love to do, I understand the concept.

    I do hope the media stays on the story. I don't want to see this getting swept under the rug and this guy showing up at some other persons house. If he is innocent I'm sure the facts will support his version of events.
  20. M

    M Muckraker

    Now named in an AP feed that's been picked up nationally by both Fox & ABC ... ^

    The family of a 32-year-old mother of five shot and killed by a Border Patrol agent as he rode on her car's hood in suburban San Diego has filed a wrongful death claim against the agency, saying the agent had a long history of misconduct in a previous law enforcement job and should not have been on the street.

    Attorney Eugene Iredale filed the claim Friday with the Border Patrol on behalf of Valeria "Munique" Tachiquin Alvarado and provided a copy to The Associated Press.

    The documents, a required precursor for a lawsuit, say the agent, 34-year-old Justin Tackett, was suspended four times for misconduct including crashing a patrol car and violating suspects' rights in the nearly four years that he worked as an Imperial County sheriff's deputy. Tackett had been given a notice that he'd be fired just before he quit the job in 2003, the documents say.

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