1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 ANDREW LEE JOHNSON, Case No. 5:18-cv-06264-EJD

9 Plaintiff, ORDER GRANTING IN PART AND

DENYING IN PART MOTIONS FOR

10 v. SUMMARY JUDGMENT

11 COUNTY OF SANTA CLARA, et al., Re: Dkt. Nos. 132, 136, 164, 211 Defendants. 12

13 In this action, Plaintiff Andrew Lee Johnson asserts that the several Defendants violated 14 his constitutional rights during his arrest in 2014, his subsequent three years’ pre-trial detention, 15 and the trial where he was eventually acquitted of the charges for attempted murder. 16 Three groups of defendants have moved for summary judgment on all claims against them. 17 Defendants City of San Jose (“City”) and Officers Marco Monzon, Jamie Lee Nicholas Hall, and 18 Trent Tessler (“Officers,” collectively with City, “City Defendants”) move for summary judgment 19 on five claims arising from the investigation leading to Plaintiff’s arrest, the alleged destruction of 20 evidence, and his subsequent detention. Mot. Summ. J. (“City Mot.”) 11–12, ECF No. 132. 21 Defendant County of Santa Clara (“County”) moves for summary judgment on the Monell 22 municipal liability claim relating to Plaintiff’s detention at the County’s facility. Mot. Partial 23 Summ. J. (“County Mot.”) 1, ECF No. 136. Finally, Defendant Jereh Lubrin—a deputy at the 24 Santa Clara County Main Jail—seeks summary judgment on the one claim against him for cruel 25 and unusual condition of confinement. Mem. Points Authorities (“Lubrin Mot.”) 3, ECF No. 164. 26 On January 21, 2022, the Court took all three motions under submission without oral 27 argument. ECF No. 187. Having reviewed the briefs, the statements of undisputed facts, and 1 statements of recent decisions, the Court GRANTS IN PART and DENIES IN PART the Motions. 2 I. BACKGROUND 3 A. Plaintiff’s Shooting Incident 4 Near midnight on October 27, 2014, Plaintiff was returning home from the Bonfare Market 5 near his apartment when he was approached on the sidewalk by two brothers, Alvaro and Bicente 6 Castro. City Mot. 3; Wesley Klimczak Decl. (“Klimczak Decl.”), Ex. I (“Johnson Dep.”) 185:7– 7 16. Plaintiff put up his hands “in a surrendering motion” with his back to traffic. Johnson Dep. 8 185:22–186:5. When the two brothers continued to harass him, Plaintiff attempted to deescalate 9 by taking out the pistol he was carrying and firing two warning shots into the sidewalk. Id. 186:8– 10 11. After he fired, one of the Castros attempted to attack Plaintiff with a knife, and Plaintiff 11 responded by shooting one in the hip and the other in the leg. Id. 187:3–6. After he disabled both 12 men, Plaintiff returned home to his apartment nearby. Id. 187:7–9. 13 B. City Defendants’ Investigation and Preliminary Hearing 14 1. Defendant Officer Monzon 15 On October 27, 2014, Officer Monzon arrived at the scene of the shooting and followed 16 the ambulance that transported Alvaro Castro to the hospital. Klimczak Decl., Ex. A (“Trial Tr.”) 17 854:19–856:7; see also Defs.’ Reply re Separate Statement of Undisputed Material Facts (“City 18 UMF”), Fact 3, ECF No. 180. At the hospital, Officer Monzon obtained a recorded statement 19 from Alvaro Castro, took photographs, and handwrote notes. Trial Tr. 856:4–7; 884:25–28. Once 20 he had returned to the San Jose Police Department (“SJPD”), Officer Monzon attempted to upload 21 the photographs and audio recording of Alvaro’s interview onto the SJPD’s Digital Crime Scene 22 (“DCS”) system, though the audio recording was unable to be located later. Trial Tr. 883:9–15; 23 City UMF, Fact 4. He also used his handwritten notes to write a report. Id. 269:14–24. Officer 24 Monzon then deleted the recording from his recording device and discarded the notes he took from 25 the interview. Id. 884:5–17. 26 2. Defendant Officer Hall 27 Like Officer Monzon, Officer Hall had also arrived at the scene of the crime and followed 1 the ambulance that took Bicente Castro to the hospital. City UMF, Fact 10. At the hospital, 2 Officer Hall first attempted to interview Bicente in the emergency room but was unable because 3 Bicente was “hysterical” with several doctors working on him. Trial Tr. 693:20–694:24. Officer 4 Hall was only able to interview Bicente after the doctors moved him to a different room for a full 5 body CAT scan. Trial Tr. 695:2–5. Officer Hall recorded the interview with an audio recorder, 6 took notes, and took photographs of Bicente’s injuries. Id. 701:18–24. 7 After he returned to the SJPD station, Officer Hall uploaded the audio recordings and 8 photographs to the DCS. Id. 703:21–704:1. He also shredded his handwritten notes after writing 9 his report, as he had been trained to do. Id. 705:21–706:2. However, when Officer Hall searched 10 the DCS for the recordings prior to Plaintiff’s criminal trial, the audio file of Bicente’s interview 11 was gone, though the photographs and the audio recording of Bicente’s doctor were still present. 12 Id. 704:9–21. 13 3. Defendant Officer Tessler 14 Officer Tessler—then a detective—was tasked with obtaining additional information and 15 conducting follow-up interviews relating to the Castro shooting. City UMF, Fact 15. After 16 reviewing Alvaro Castro’s initial statement to Officer Monzon, Officer Tessler interviewed Alvaro 17 Castro three more times because he wanted additional information to explain a gap in time in 18 Alvaro’s initial statement. Id.; see also Trial Tr. 1247:13–15. 19 Additionally, Officer Tessler interviewed the property manager of the apartment complex 20 where Plaintiff resided and learned that residents access the complex using a key fob. City UMF, 21 Fact 21. The property manager provided a thumb drive to Officer Tessler with Excel spreadsheets 22 containing information associated with Plaintiff’s key fob. City UMF, Fact 22. Officer Tessler 23 testified that this raw data was later “shrunk down” but that the data was not changed. Tessler 24 Dep. 92:10–14. He also testified that he “condensed” the spreadsheet data down to the relevant 25 gates’ data. Id. 93:15–21. Plaintiff, however, testified that the spreadsheet prepared by Officer 26 Tessler did not reflect his personal recollections of his comings and goings on the relevant dates. 27 Johnson Dep. 204:22–25. 4. Plaintiff’s Arrest and Preliminary Hearing 1 On November 12, 2014, Plaintiff was arrested and interrogated by Officers Tessler and 2 Ericksen. City UMF, Fact 26. 3 Plaintiff’s preliminary hearing was held on February 16, 2015. Klimczak Decl., Ex. B. 4 Initially, the criminal trial court found sufficient evidence of assault with a deadly weapon but no 5 evidence of express malice for attempted murder. See Klimczak Decl., Ex. B, at 352:13–354:27. 6 However, the appellate court reversed the decision, and the trial court reinstated the attempted 7 murder charges. City UMF, Fact 21; City Mot. 6. 8 Plaintiff does not dispute that the criminal court found probable cause to hold him over for 9 trial on two counts of attempted murder and two counts of aggravated assault. City UMF, Fact 27. 10 C. County Defendant’s Customs and Policies 11 Following his arrest, Plaintiff was in the County’s custody for over three years, from 12 November 12, 2014 to February 7, 2018. FAC ¶¶ 87, 252. Because the County only moves for 13 summary judgment on Plaintiff’s Monell claim for municipal liability, the Court only recites the 14 facts relevant to this claim, specifically the County’s policies, customs, or practices during 15 Plaintiff’s detention. 16 1. Excessive Force Policies 17 The County maintains a Use of Force and Restraints Policy that permits officers to only 18 use the amount of force necessary to bring an incident under control, requires officers to attempt 19 voluntary compliance before using force, and prohibits the use of force or restraints for discipline. 20 Decl. David Sepulveda (“Sepulveda Decl.”) ¶ 3, Ex. 1 (“Force Policy”); see also County’s Reply 21 Separate Statement (“County UMF”), Fact 1. 22 The County’s Sheriff Correctional Deputies are required to attend the Santa Clara County 23 Correctional Academy, consisting of over 400 hours of training, twenty-four (24) weeks of the Jail 24 Training Program, and an annual twenty-four (24) hours’ in-service and continuing education. 25 County UMF, Fact 2; see also County Mot. 2–3. This training involves the use of force, defensive 26 tactics, restraint techniques, and drafting reports. Id. The County’s training has historically 27 1 involved more hours than the California minimum requirement. Decl. Adam Oberdorfer 2 (“Oberdorfer Decl.”) ¶ 5. 3 The County also maintains an Internal Affairs Unit (“IAU”) to “receive, record, and 4 investigate all complaints alleging misconduct on the part of Department [of Correction] 5 personnel.” Sepulveda Decl., Ex. 2 (“IA Policy”), at 1.19-1; County UMF, Fact 4. The IA Policy 6 provides for a formal investigation involving preliminary inquiries, records review, witness and 7 employee interviews, resulting in a final investigative report with findings. IA Policy 1.19-4– 8 1.19-9. The investigation must be completed within one year of the misconduct’s discovery, with 9 major violations resulting in disciplinary actions that may include termination. Id. 1.19-9–1.19- 10 20. Plaintiff only disputes that certain IAU officers required a higher standard of proof for certain 11 findings and did not inquire into officers’ prior allegations of misconduct. County UMF, Fact 4. 12 In 2015, the County’s Board of Supervisors established a “Blue Ribbon Commission” to 13 reform the Custody Bureau’s use of force, which resulted in a report presented to the Santa Clara 14 Board of Supervisors in April 2016. Decl. Robert Powell (“Powell Decl.”), Ex. T (“County 15 Audit”), at 31; Johnson County Decl. ¶ 20. The Blue Ribbon Commission resulted in 629 jail 16 reform recommendations, and the Custody Bureau implemented a new use of force policy in 17 August 2017. Id. 18 2. Use of Force Against Plaintiff 19 On March 29, 2016, the IAU lodged an investigation into Plaintiff’s allegations of force 20 and abuse against Deputies Ruban, Reeves, and Dominguez for beating him after he insulted one 21 of the deputies. County UMF, Fact 5; FAC ¶¶ 133–146. 22 The IAU concluded that the allegations were unfounded and notified the County’s Major 23 Crimes Unit for further investigation. The Major Crimes Unit then submitted its investigation 24 report to the District Attorney’s Office, which declined to file any charges against the deputies. 25 Sepulveda Decl. ¶ 5; County UMF, Facts 5–6. 26 3. Instances of Excessive Force 27 David Grandara: On July 20, 2015, Grandara filed an Inmate Grievance Form that 1 deputies used excessive force. The County investigated the allegations and determined that the 2 use of force was justified, and Grandara did not file a lawsuit against the County. County UMF, 3 Fact 14. 4 Michael Tyree: In August 2015, three deputies murdered Michael Tyree, a mentally ill 5 inmate at the County jail, just below Plaintiff’s cell. FAC ¶ 156. In October 2015, the County 6 retained an outside law firm to investigate Tyree’s murder and whether Deputies Matthew Farris, 7 Rafael Rodriguez, and Defendant Lubrin violated County policies. The investigation concluded 8 that all three officers violated County policies, the County terminated all three deputies, and the 9 District Attorney criminally prosecuted all three officers, resulting in convictions for second- 10 degree murder. Sepulveda Decl. ¶ 6; County UMF, Fact 8. 11 Adrian Villalon: On November 2, 2015, Villalon submitted a grievance alleging excessive 12 force. The County’s shift lieutenant, facility commander, and supervising sergeant investigated 13 the incident and concluded that the force used was necessary and appropriate. Villalon did not file 14 a lawsuit against the County. Sepulveda Decl. ¶ 12. 15 Rikki Martinez: Martinez lodged a use of force complaint against Deputy Jacquez. On 16 April 15, 2017, IAU issued findings that either exonerated or declined to sustain the policy 17 violations against Deputy Jacquez. The County subsequent settled the resultant excessive force 18 lawsuit brought by Martinez. Sepulveda Decl. ¶ 7; County UMF, Facts 9–10. 19 Aaron Steward: On July 13, 2017, Steward’s father informed IAU that Deputy West had 20 kicked Steward multiple times, causing injuries. On April 4, 2019, IAU issued findings declining 21 to sustain any of the eight potential policy violations. The Major Crimes Unit also investigated 22 Deputy West’s conduct and forwarded the report to the District Attorney, who found that Deputy 23 West was entitled to use the force he did and declined to file any charges. Sepulveda Decl. ¶¶ 8– 24 9; County UMF, Facts 11–13. Plaintiff claims that the investigator who referred the case to the 25 District Attorney had omitted material information and mischaracterized witness statements. 26 County UMF, Facts 11–12. 27 Jesse Grant: On September 13, 2017, Grant filed a claim alleging excessive force. The 1 County rejected his claim on October 19, 2017, and Grant did not proceed with an excessive force 2 lawsuit against the County. Sepulveda Decl. ¶ 13; County UMF, Fact 18. 3 Other Complainants: Ruben Garcia, Leopoldo Manzo, Walter Roches, Daniel Reyes, and 4 Julian Vasquez-Bernabe had brought separate lawsuits against the County. All suits were settled 5 without any admissions from the County. None of the individual County Deputy Defendants were 6 named in any of these cases. Sepulveda Decl. ¶ 11; County UMF, Fact 15. 7 4. Housing Conditions 8 The parties dispute whether Plaintiff received the minimum out-of-cell time pursuant to the 9 standards for local detention facilities. See County UMF, Facts 22–36 (indicating disputes on all 10 facts). Plaintiff states that he was locked in his cell for 47 out of 48 hours regularly, spent 16 11 months in solitary confinement, and received only 15 minutes of out-of-cell time each day. 12 Johnson Decl. ¶¶ 27–36. 13 Plaintiff does not identify any other instances where inmates received unconstitutional 14 housing treatment. Instead, he cites the County’s classification process and his own classification 15 records as evidence of a “custom of housing people in solitary confinement due to their charges 16 only.” Opp. County 22. 17 D. Officer Lubrin’s Conduct 18 For a period of six months, Deputy Jereh Lubrin was assigned to Plaintiff’s floor during 19 his detention at the Santa Clara County Main Jail. Plaintiff’s Separate Statement of Facts (“Lubrin 20 UMF”), Fact 9. Plaintiff was Lubrin’s trustee for those six months. Lubrin UMF, Fact 21. 21 During this period, there was one exchange where Lubrin searched Plaintiff’s cell for 22 contraband, verbally harassed him, and threatened to “do butthole checks on all the blacks.” 23 Lubrin UMF, Facts 23–24; see also Johnson Dep. 111:15–114:8, ECF No. 163-1. Lubrin also 24 intentionally caused a disturbance in Plaintiff’s housing unit, which resulted in the entire pod 25 being locked down for four days. Lubrin UMF, Fact 27. Plaintiff does not allege that Lubrin 26 subjected him to any excessive force. Lubrin UMF, Facts 31, 34. 27 E. Trial Proceedings and Acquittal 1 Before Plaintiff’s criminal trial began, his counsel filed a Trombetta motion seeking 2 dismissal or sanctions, based on allegations that the SJPD had intentionally destroyed and 3 fabricated evidence. City UMF, Fact 30. The purported destruction at issue were the losses of 4 Officers Monzon’s and Hall’s recorded interviews with the two Castro brothers on the night of the 5 shooting. Klimczak Decl., Ex. D, ECF No. 60-2. Additionally, the Trombetta motion claimed 6 that Officer Monzon failed to properly execute a search warrant and that Officer Hall intentionally 7 failed to preserve surveillance footage. Id. The criminal court denied Plaintiff’s motion. City 8 UMF, Fact 31. It found that, although the loss of both interview recordings was “evidence of 9 human error, inattentiveness to detail, possibly even sloppy work, and more than likely an 10 inadequate system,” there was insufficient evidence of the bad faith required to grant the 11 Trombetta motion. ECF No. 60-2, at 138. 12 At trial, the prosecution called Officers Monzon, Hall, and Tessler to testify, and Plaintiff’s 13 defense counsel cross-examined all three officers. City UMF, Fact 32. At the close of the 14 prosecution’s case, Plaintiff moved to dismiss the attempted murder charges based on insufficient 15 evidence. City UMF, Fact 33. In doing so, Plaintiff’s defense counsel conceded that “if [the 16 jurors] choose to ignore [Plaintiff’s] testimony, they could find him guilty of the [aggravated 17 assault] charges.” Trial Tr. 1420:15–24. The trial judge ultimately denied Plaintiff’s motion, 18 finding that there was sufficient evidence for the jury to consider whether Plaintiff had an intent to 19 kill for the attempted murder charges. City UMF, Fact 35; Trial Tr. 1453:10–18. 20 Plaintiff was ultimately acquitted of the attempted murder and aggravated assault charges 21 but was convicted of drug possession. City Mot. 9. 22 F. Procedural History 23 Plaintiff filed the present suit on October 12, 2018, asserting eight claims against the 24 County of Santa Clara, the City of San Jose, and their relevant employees. ECF No. 1. These 25 claims changed over the course of two rounds of motions to dismiss brought by both City and 26 County Defendants, as well as a voluntary dismissal. 27 1 Presently, Plaintiff asserts five claims against the City Defendants, as follows: (1) the 2 Fourth Claim against Defendant Officers for Deliberate Fabrication of Evidence; (2) the Fifth 3 Claim against Defendant Officers for Failure to Disclose Exculpatory or Impeachment Evidence; 4 (3) the Sixth Claim against Defendant Officers for Conspiracy to deprive constitutional rights; (4) 5 the Seventh Claim against Defendant Officers for Unlawful Detention and Malicious Prosecution; 6 and (5) the Eighth Claim against the City for municipal liability based on continued unlawful 7 detention and malicious prosecution. See generally FAC. The City Defendants seek summary 8 judgment in their favor as to all five claims against them. ECF No. 132. 9 Against the County and County officials, Plaintiff maintains two claims: (1) the First 10 Claim against County officials Timur Ruban, Matthew Reeves, Pedro Dominguez, and Jereh 11 Lubrin; and (2) the Second Claim against the County for municipal liability based on cruel and 12 unusual conditions of confinement. See generally FAC. The Third and Ninth Claims for 13 intentional infliction of emotional distress were voluntarily dismissed by Plaintiff and by the 14 Court, respectively. ECF Nos. 62, 93. The County only seeks summary judgment on the 15 municipal liability claim. ECF No. 136. 16 Finally, Defendant Lubrin seeks summary judgment in his favor as to the one claim against 17 him: the First Claim for Cruel and Unusual Conditions of Confinement. ECF No. 164. 18 On January 21, 2022, the Court took all motions under submission without oral argument. 19 ECF No. 187. After the motions were submitted, the parties each filed statements of recent 20 decision, and Plaintiff has sought leave to supplement the record. ECF No. 211. 21 II. LEGAL STANDARD 22 Summary judgment is proper where the pleadings, discovery, and affidavits show that 23 there is “no genuine issue as to any material fact and that the moving party is entitled to judgment 24 as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it would affect the outcome of 25 the suit under the governing law, and a disputed issue is “genuine” if the “evidence is such that a 26 reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 27 477 U.S. 242, 248-49 (1986). 1 The party moving for summary judgment bears the initial burden of identifying those 2 portions of the record which demonstrate the absence of a genuine issue of material fact. See 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden 4 of proof at trial, “the burden on the moving party may be discharged by ‘showing’—that is, 5 pointing out to the district court—that there is an absence of evidence to support the nonmoving 6 party's case.” Id. at 325. If the moving party can meet this initial burden, the burden then shifts to 7 the non-moving party to produce admissible evidence and set forth specific facts showing that a 8 genuine issue of material fact does indeed exist for trial. See Nissan Fire & Marine Ins. Co. v. 9 Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). If the non-moving party produces 10 enough evidence to show a genuine issue of material fact exists, then it defeats the motion; 11 otherwise, the moving party is entitled to summary judgment. Id. 12 In considering a motion for summary judgment, the Court must view the evidence in the 13 light most favorable to the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 655 (2014). 14 The Court may not weigh conflicting evidence as to a disputed fact nor may it make credibility 15 determinations; any disputed factual issues must be resolved in favor of the non-moving party. 16 See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). 17 However, the Court need not credit the non-moving party’s version of events where it is blatantly 18 contradicted by the record. See Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020). 19 III. CITY AND OFFICER DEFENDANTS 20 City Defendants move for summary judgment on all claims asserted against them. “To 21 succeed on a § 1983 claim, a plaintiff must show that (1) the conduct complained of was 22 committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of 23 a federal constitutional or statutory right.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 24 2011). None of the Defendants dispute the color of state law element, so the sole issue for the § 25 1983 claims is whether Defendants deprived Plaintiff of a federally protected right. 26 A. Fourth Claim: Fabrication of Evidence 27 Plaintiff’s Fourth Claim alleges that City Defendants violated his right to a fair preliminary 1 hearing and trial because they had deliberately fabricated evidence, including key fob data, 2 witness statements, victim testimony, and shell casing evidence. FAC ¶¶ 271–75. 3 The Ninth Circuit recognizes a “clearly established constitutional due process right not to 4 be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by 5 the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001). A plaintiff can 6 prove “deliberate fabrication” either with direct evidence or with circumstantial motive evidence. 7 See Richards v. Cnty. of San Bernardino, 39 F.4th 562, 569 (9th Cir. 2022). Circumstantial 8 evidence may be established by (a) continuing an investigation into the plaintiff despite 9 knowledge that he was innocent or (b) the use of investigative techniques so coercive and abusive 10 that defendants knew or should have known that those techniques would yield false information. 11 Id. (citing Devereaux, 263 F.3d at 1076). 12 As an initial point, City Defendants argue that the issue of fabrication has been collaterally 13 estopped by the criminal court’s finding of probable cause to detain Plaintiff at the preliminary 14 hearing. City Mot. 16–17. However, probable cause is not a required finding or relevant issue 15 under the Devereaux deliberate fabrication framework summarized above. Accordingly, even if 16 the finding of probable cause receives preclusive effect, it has no bearing on a Devereaux claim. 17 Onto the merits, City Defendants argue that Plaintiff has no evidence to support his FAC 18 allegations that City Defendants (1) purposefully manipulated key fob data; (2) misrepresented 19 witness statements; or (3) used suggestive interview techniques. City Mot. 12–13; FAC ¶¶ 271– 20 75. In his opposition brief, Plaintiff refers the Court without citation to “glaring credibility 21 problems with Alvaro and Bicente Castro’s accounts of the incident and the events in the hours 22 preceding it” and Officer Tessler’s admission that the victims’ “three hours prior to the shooting 23 were unaccounted for.” Opp. City 7. Plaintiff otherwise makes no effort to argue or defend any of 24 the following allegations in the FAC: the alleged manipulation of key fob data (FAC ¶ 271), 25 allegedly manipulative interview techniques using receipts to “feed information” for the victims’ 26 statements (FAC ¶ 274), or alleged misrepresentations regarding bullet shell casings at the scene 27 of the crime (FAC ¶ 275). 1 Plaintiff has failed to present a genuine dispute as to why City Defendants are not entitled 2 to summary judgment on the deliberate fabrication claim. The opposition’s cursory and uncited 3 references to facts presumably somewhere in the record fall short of Plaintiff’s obligations to 4 produce at least some admissible evidence and set forth specific facts showing a genuine dispute. 5 Opp. City 7. Furthermore, even if Plaintiff did provide specific evidence of “glaring” credibility 6 problems, “not all inaccuracies in an investigative report give rise to a constitutional claim. Mere 7 carelessness is insufficient, as are mistakes of tone.” Spencer v. Peters, 857 F.3d 789, 798 (9th 8 Cir. 2017) (internal citation, brackets, and quotation marks omitted). And here, Plaintiff has not 9 provided any evidence to suggest that the alleged “glaring credibility problems” with the victims’ 10 accounts can be chalked up to anything more than “inaccuracies in an investigative report” or 11 “mere carelessness.” Opp. City 7–8. Indeed, Plaintiff’s opposition brief is bereft of any actual 12 quotations or excerpts from these witness statements that evidence “glaring credibility problems.” 13 Nor would a three-hour gap in the shooting victims’ recollections support an inference that the 14 City Officers were fabricating evidence instead of being merely careless. Finally, to the extent 15 Plaintiff relies solely on his own recollections of his ingresses and egresses from his apartment as 16 circumstantial evidence of Officer Tessler’s deliberate fabrication (City UMF, Fact 24), this 17 evidence does not fall under either of the two methods by which deliberate fabrication can be 18 established circumstantially. Devereaux, 263 F.3d at 1076. 19 The Court finds that City Defendants has pointed out an absence of evidence supporting 20 Plaintiff’s fabrication of evidence claim, and Plaintiff has failed to present a genuine dispute of 21 material fact for trial. Accordingly, the Motion is GRANTED as to the Fourth Claim against the 22 Officer Defendants. 23 B. Fifth Claim: Failure to Disclose Exculpatory Evidence 24 Plaintiff’s Fifth Claim alleges that City Defendants suppressed and destroyed exculpatory 25 evidence, depriving him of his rights to a fair preliminary hearing and to be free from unjustified 26 pretrial detention. Specifically, the FAC alleges that the Officer Defendants misrepresented 27 witness statements, failed to memorialize evidence that one of the victims had a knife, and 1 destroyed copies of initial witness statements taken by the Officers. FAC ¶¶ 282–83. 2 To meet their initial burden as the moving party, City Defendants have both presented 3 affirmative rebuttal evidence and highlighted the absence of evidence to support Plaintiff’s other 4 allegations. City Mot. 13–16. They also argue that certain findings made by the criminal court 5 collaterally estops Plaintiff from meeting the requirements for this Claim. Id. at 16–20. 6 Plaintiff argues that the City Defendants’ failure to disclose exculpatory evidence deprived 7 him of two different constitutional rights: the right to be free from unjustified pretrial detention 8 (the Tatum violation) and the right to a fair hearing (the Brady violation). Each theory has its own 9 separate required elements. 10 1. Collateral Estoppel 11 As with Plaintiff’s Devereaux claim, City Defendants attempt again to assert the collateral 12 estoppel defense based on the criminal court’s finding of probable cause at the preliminary 13 hearing. City Mot. 16–17. And, as with the Devereaux claim, probable cause is not a required 14 element of either a Tatum or Brady claim. See infra Sections III(B)(2)–(3). Accordingly, even if 15 Plaintiff was collaterally estopped from re-litigating “probable cause,” it would not preclude his 16 ability to establish the requisite elements for a Tatum or Brady violation. 17 2. Tatum Violation 18 In addition to their collateral estoppel defense, City Defendants submit that Plaintiff is 19 unable to establish the necessary elements for a Tatum violation. The Court agrees. 20 To establish a constitutional violation under Tatum v. Moody, 768 F.3d 806 (9th Cir. 21 2014), Plaintiff must show that (1) he was subjected to a detention of “unusual length”; (2) the 22 detention was caused by investigating officers’ failure to disclose highly significant exculpatory 23 evidence to prosecutors; and (3) the officers had understood the risks to Plaintiff’s rights from 24 withholding the information or were completely indifferent to those risks. Id. at 819–20. Plaintiff 25 fails to present evidence of a genuine dispute on the second and third Tatum requirements. 26 To meet the “highly significant exculpatory evidence” requirement, Plaintiff only mentions 27 (without citing) to “Monzon[‘s] and Tessler’s fabricated and manufactured witness statements,” 1 which the Court presumes is a reference to the Castro brothers’ two victim statements “that had 2 been crafted with Tessler’s assistance.” Opp. City 7–8. However, Plaintiff fails to explain how 3 the potential bias and credibility issues with these witness statements are “not merely material but 4 strongly indicative of [his] innocence.” Tatum, 768 F.3d at 820 (emphasis in original). The 5 witness statements and their potential biases do not “strongly indicat[e]” innocence when Plaintiff 6 had indisputably shot the Castro brothers and fled the scene. City UMF, Fact 1; cf. Hernandez v. 7 Kennedy, 595 F. App’x 673, 675 (9th Cir. 2014) (finding that evidence that plaintiff had been 8 coaxed to “violate the restraining order do not prove his innocence of violating it”). Unlike Tatum 9 and its progeny, there was no risk of mistaken identity when the City Officers detained Plaintiff. 10 With respect to the third Tatum requirement regarding the City Defendants’ intent, Plaintiff 11 has proffered no admissible evidence and has only cited to the FAC. Opp. City 8 (“[H]ere, 12 Plaintiff alleges Defendants disregarded the risk of his deprivation of liberty.”). This is plainly 13 insufficient to defeat a motion for summary judgment. See Celotex, 477 U.S. at 324 (“Rule 56(e) 14 therefore requires the nonmoving party to go beyond the pleadings and . . . designate ‘specific 15 facts showing that there is a genuine issue for trial.’”) (emphasis added). 16 Accordingly, there is no genuine dispute that Plaintiff cannot establish a Tatum claim. 17 3. Brady Violation 18 Plaintiff also argues that the City Defendants’ failure to disclose exculpatory evidence 19 constituted a Brady violation. Opp. City 8–9. The three elements of a Brady violation are: (1) the 20 evidence is favorable to the accused, (2) the prosecution suppressed the evidence, and (3) the 21 evidence is material. Hooper v. Shinn, 985 F.3d 594, 616 (9th Cir. Jan. 8, 2021). 22 Evidence may be deemed “suppressed” even where the failure to disclose favorable 23 evidence was unintentional or where the prosecutor was unaware that others, acting on the 24 government’s behalf, had such evidence. Ochoa v. Davis, 16 F.4th 1314, 1327 (9th Cir. 2021), 25 cert. denied, 214 L. Ed. 2d 35 (Oct. 3, 2022). When a Brady violation is alleged against law 26 enforcement officers—as Plaintiff does here—under § 1983, the plaintiff must show that the 27 “officers acted with deliberate indifference to or reckless disregard for an accused’s rights or for 1 the truth in withholding evidence from prosecutors.” Tennison v. City & Cnty. of San Francisco, 2 570 F.3d 1078, 1088–89 (9th Cir. 2009). Evidence is “material” only if “there is a reasonable 3 probability that, had the evidence been disclosed to the defense, the result of the proceeding would 4 have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). There is a “reasonable 5 probability” of prejudice when the suppression “undermines confidence in the outcome of the 6 trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). 7 City Defendants assert that Plaintiff cannot produce evidence that Officers Monzon and 8 Hall intentionally destroyed audio recordings of their initial interviews with the shooting victims. 9 City Mot. 13. In support, City Defendants introduce deposition testimony from Mr. Meador, a 10 third-party engineer who manages the DCS and who testified that the Officers did not have the 11 capability to delete files within DCS. Id.; see also Klimczak Decl., Ex. H (“Meador Dep.”), 12 24:25–26:7. Plaintiff responds with the undisputed facts that the two victims’ audio interviews— 13 by some means—were rendered inaccessible in a criminal case where the defendant was asserting 14 self-defense, facts that Plaintiff only learned in the middle of trial. Johnson Decl. ¶¶ 5–6; see also 15 City UMF, Facts 4, 11. 16 The Court finds that there is a genuine dispute as to whether Officers Monzon and Hall 17 acted with deliberate indifference or reckless disregard for the truth when they failed to upload the 18 two victims’ interview recordings to the City’s DCS database. There are two competing narratives 19 here. If a reasonable jury were to believe the City Officers’ and Mr. Meador’s statements, then it 20 could conclude that the failures to properly upload the audio files did not rise to the level of 21 culpability required for deliberate indifference or reckless disregard. Plaintiff, however, proffers 22 deposition testimony that the Officers Monzon and Hall failed to confirm if their recordings were 23 actually uploaded and failed to report the missing evidence once they discovered it was missing. 24 See City UMF, Issue 2, ECF No. 180, at 17. An equally reasonable jury could infer from these 25 facts that the Officer Defendants conveniently turned a blind eye to the technical flaws in the 26 City’s DCS when the files at issue could be used to impeach their written reports. Mr. Meador’s 27 testimony that the Defendant Officers did not have authority to delete files would not preclude the 1 inference that the Officers acted with deliberate indifference in failing to upload files in the first 2 instance. See City UMF, Facts 4, 11 (acknowledging that Officers Monzon and Hall “attempted to 3 upload the audio recording to the [DCS] database, but the file did not get uploaded”). This 4 inference is also supported by the fact that Officer Hall’s recorded interview with Bicente’s doctor 5 at the hospital was successfully uploaded and accessible. Trial Tr. 704:9–21. The dispute 6 between these dueling inferences, whose resolution would be material to a finding of suppression 7 under Brady, is not up to this Court to resolve on a motion for summary judgment.1 8 As to the Fifth Claim against Officer Tessler, however, the Court does not find that a 9 similar dispute exists. First, Plaintiff’s proffered evidence regarding the missing audio recordings 10 do not extend to Officer Tessler. City UMF, Issue 2, ECF No. 180, at 17. Second, the only 11 potential Brady allegations against Officer Tessler relate to his alleged modifications of Plaintiff’s 12 key fob data and an email where Officer Tessler requested an uploaded statement to be deleted 13 from Plaintiff’s case file. See Marinho Decl., Ex. D, ECF No. 168-4. Plaintiff has not introduced 14 any evidence that could give rise to an inference that Officer Tessler manipulated the key fob data; 15 he has only pointed to the fact that Officer Tessler did not specify the format he provided the data 16 to the District Attorney’s Office. City UMF, Fact 24. As to Officer Tessler’s request to delete a 17 file from Plaintiff’s case file, the email in question indicates on its face that Officer Tessler had 18 “uploaded a statement to the wrong case number.” Marinho Decl., Ex. D. Plaintiff does not 19 proffer any evidence suggesting that the purportedly deleted file was not, in fact, related to an 20 entirely different case, much less that Officer Tessler had requested it removed with “deliberate 21 indifference” or “reckless disregard” for Plaintiff’s rights. With respect to both of these instances, 22 Plaintiff fails to raise a genuine dispute that Officer Tessler had violated his Brady rights. 23

24 1 City Defendants primarily focus on the “deliberate indifference” and suppression requirements, 25 but to the extent they dispute other Brady elements, the Court also finds that there is at least a genuine and triable issue as to whether the victim interview recordings taken closest in time after 26 the Plaintiff’s shooting would have “tend[ed] to call the government’s case into doubt” (i.e., were favorable) and whether “there is a reasonable probability that, had the evidence been disclosed to 27 the defense, the result of the proceeding would have been different” (i.e., were material). Ochoa, 16 F.4th at 1326–27. 1 * * * 2 In summary, the Court finds that Plaintiff has failed to demonstrate that there exists a 3 genuine dispute relating to his claim for a Tatum violation or with respect to Officer Tessler’s 4 conduct. However, Plaintiff has adduced sufficient evidence to raise a genuine dispute as to 5 whether Officers Monzon and Hall acted with “deliberate indifference or reckless disregard” when 6 they failed to upload the victims’ audio recordings to the DCS database. Accordingly, the Court 7 GRANTS City Defendants’ Motion as to Officer Tessler and DENIES the Motion with respect to 8 Officers Monzon and Hall. 9 C. Sixth Claim: Conspiracy 10 To establish a conspiracy claim under §1983, plaintiffs must show “(1) the existence of an 11 express or implied agreement among the defendant officers to deprive him of his constitutional 12 rights, and (2) an actual deprivation of those rights resulting from that agreement.” Avalos v. 13 Baca, 596 F.3d 583, 592 (9th Cir. 2010). Because “[c]onspiracy is not itself a constitutional tort 14 under § 1983 . . . there must always be an underlying constitutional violation.” Lacey v. Maricopa 15 Cnty., 693 F.3d 896, 935 (9th Cir. 2012). Plaintiff may “rely on indirect or circumstantial 16 evidence to buttress his conspiracy claim. He must, however, provide specific facts showing that a 17 conspiracy exists in order to survive summary judgment.” Stiglich v. Contra Costa Cnty. Bd. of 18 Sup'rs, 106 F.3d 409 (9th Cir. 1997). 19 City Defendants move for summary judgment on Plaintiff’s conspiracy claim based on his 20 inability to establish a constitutional violation under any of his other claims. City Mot. 21. In 21 their reply, they also argue that Plaintiff cannot show there was an agreement or meeting of minds 22 to violate Plaintiff’s rights. City Reply 10–11. Plaintiff relies on the facts that Officers Monzon 23 and Hall “claimed to have uploaded the audio recordings to DCS when the neutral third-party 24 vendor Dave Meador says they did not” and “the fact that Tessler asked someone else within the 25 department to delete a statement from Plaintiff’s case in DCS.” Opp. City 13. 26 First, with respect to Officer Tessler, the Court found that Plaintiff has failed to provide 27 evidence to support a genuine dispute as to constitutional violations relating to Officer Tessler’s 1 manipulation of key fob data or his request to delete a statement erroneously uploaded to 2 Plaintiff’s case file. See supra Sections III(A), (B)(3). Accordingly, there is no genuine dispute 3 that the civil conspiracy claim cannot be maintained against Officer Tessler because there is no 4 surviving underlying constitutional violation against him. 5 Second, regarding Officers Monzon and Hall, the Court found that there are genuine 6 disputes of material fact as to whether these officers suppressed exculpatory evidence by 7 independently failing to upload the audio recordings for the victims’ initial interview onto DCS. 8 See supra Section III(B)(3). As a result, there remains at least two potential constitutional 9 violations against these Defendant Officers, which defeats the only basis raised in the City 10 Defendants’ opening Motion. 11 City Defendants, however, argue for the first time in their reply that Plaintiff is also unable 12 to show that there exists an express or implied agreement to deprive him of his constitutional 13 rights. Compare City Mot. 21 with City Reply 10–11. As an initial matter, “[r]aising new 14 arguments in a reply brief is classic sandbagging,” California Sportfishing Prot. All. v. Pac. States 15 Indus., Inc., 2015 WL 5569073, at *2 (N.D. Cal. Sept. 22, 2015), and City Defendants provide no 16 explanation as to why it did not assert this argument in their opening motion. Even if this 17 argument was properly raised in City Defendants’ opening motion, the Court finds that the 18 undisputed facts raise a genuine dispute as to whether Officers Monzon and Hall had conspired in 19 failing to upload the victim interviews’ audio recordings. The undisputed circumstantial evidence 20 here indicate that Officer Monzon failed to upload the audio recording for Alvaro Castro’s 21 interview into the DCS database and, on a purportedly separate occasion, Officer Hall similarly 22 failed to upload the audio recording for Bicente Castro’s interview. City UMF, Facts 4, 11. Both 23 failed uploads occurred with respect to victims whose testimony would be central to Plaintiff’s 24 self-defense claim, whereas Officer Hall had no issues uploading the audio recording of his 25 interview with Bicente’s doctor. Trial Tr. 704:9–21. Moreover, neither Officer reported the 26 missing evidence or the fact that there may be an error with DCS when they learned the recordings 27 could not be located. See City UMF, at 17–18. A reasonable jury could infer from the fact that 1 two officers independently failed to upload similar potentially exculpatory audio files that there 2 existed an implied agreement or meeting of minds to do so. 3 In summary, the Court DENIES City Defendants’ Motion as to Plaintiff’s Sixth Claim for 4 Conspiracy as to Officers Monzon and Hall but GRANTS the Motion as to Officer Tessler. 5 D. Seventh Claim: Malicious Prosecution and Unlawful Detention 6 To prevail on a claim for malicious prosecution, a plaintiff “must show that the defendants 7 prosecuted her with malice and without probable cause, and that they did so for the purpose of 8 denying her equal protection or another specific constitutional right.” Freeman v. City of Santa 9 Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). City Defendants argue that Plaintiff cannot establish the 10 requisite “probable cause” element because that issue has been collaterally estopped by the 11 criminal court’s finding of probable cause at the preliminary hearing. City Mot. 16–17. Plaintiff 12 responds that the prior probable cause finding is not entitled to preclusive effect because he has 13 alleged the Defendant Officers fabricated evidence in the preliminary hearing. Opp. City 12. 14 Unlike the City Defendants’ assertions of collateral estoppel to preclude Plaintiff’s 15 Devereaux, Tatum, and Brady claims, probable cause is an element to a malicious prosecution 16 claim. Accordingly, the Court considers whether the criminal court’s probable cause findings 17 would preclude Plaintiff’s ability to establish his Seventh Claim. 18 This Court applies California law on preclusion issues, which here sets forth five 19 requirements: “(1) the issue sought to be relitigated must be identical to the issue decided in the 20 earlier action; (2) the issue must have been actually litigated and (3) necessarily decided in the 21 earlier action; (4) the earlier decision must be final and made on the merits; and (5) the party 22 against whom issue preclusion is asserted must have been a party to the earlier action or in privity 23 with such a party.” Wige v. City of Los Angeles, 713 F.3d 1183, 1185–87 (9th Cir. 2013) (citing 24 Lucido v. Superior Ct., 51 Cal. 3d 335, 341 (1990)). “[A] ruling on sufficiency of the evidence at 25 a preliminary hearing would, in most cases, meet” the first three preclusion requirements, i.e., 26 identical issues, actual litigation, and necessary decisions. McCutchen v. City of Montclair, 73 27 Cal. App. 4th 1138, 1146–47 (1999). However, “[o]ne notable exception to this rule would be in a 1 situation where the plaintiff alleges that the arresting officer lied or fabricated evidence presented 2 at the preliminary hearing.” Id. at 1147. 3 For the same reasons noted in its discussion of Plaintiff’s Devereaux claim, the Court finds 4 no genuine dispute that Plaintiff cannot prove that the City Defendants deliberately fabricated 5 evidence. See supra Section III(A). Plaintiff’s reliance on the Court’s rejection of the collateral 6 estoppel defense at the motion to dismiss stage is misplaced. ECF No. 93, at 6–8. Whereas mere 7 allegations of deliberate fabrication may be sufficient to survive a motion to dismiss, a motion for 8 summary judgment “requires the nonmoving party to go beyond the pleadings and . . . designate 9 ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (emphasis 10 added). Plaintiff’s citation to Harris v. Roderick is inapposite for the same reasons. Opp. City 12. 11 Arising out of the infamous Ruby Ridge incident, Harris was a Ninth Circuit decision on a motion 12 to dismiss, where the plaintiff’s allegations of fabricated evidence were accepted as true. Harris v. 13 Roderick, 126 F.3d 1189 (9th Cir. 1997). Its holding does not affect or satisfy Plaintiff’s 14 obligation here to provide specific facts and evidence beyond the pleadings when challenged by a 15 motion for summary judgment. 16 Plaintiff also make a passing reference to Patterson v. City of Yuba City, invoking the 17 exception to collateral estoppel where the “issue of probable cause was not litigated at the 18 preliminary hearing for tactical reasons.” 748 F. App’x 120, 122 (9th Cir. 2018) (emphasis 19 added). Plaintiff has provided a declaration that he “did not testify at his [sic] preliminary hearing 20 based on advice of counsel, for strategic reasons.” Johnson Decl. ¶ 4. This argument 21 misapprehends the exception; Plaintiff’s decision not to testify at his preliminary hearing does not 22 mean that the issue of probable cause was not fully litigated by his counsel. Indeed, the 23 preliminary hearing transcript plainly evidences a vigorous defense from Plaintiff’s criminal 24 counsel. See generally Klimczak Decl., Ex. B. 25 Because Plaintiff has failed to present a genuine dispute as to whether the City Defendants 26 had engaged in deliberate fabrication of evidence, no exception applies to block the preclusive 27 effect of the criminal court’s probable cause finding. See McCutchen, 73 Cal. App. 4th at 1147 1 (1999) (“[A] prior judicial determination at a preliminary hearing that there was sufficient 2 evidence to hold the plaintiff over for trial may, in some situations, preclude the plaintiff from 3 relitigating the issue of probable cause to arrest in a subsequent civil suit.”). The Court also finds 4 that (1) the issue of probable cause for malicious prosecution and unlawful detention is identical to 5 the issue of probable cause considered by the criminal court; (2) Plaintiff’s criminal counsel 6 actually and fully litigated the issue, even if Plaintiff himself did not testify; (3) the criminal court 7 was required to make a determination on probable cause to hold Plaintiff over for trial; (4) the 8 probable cause finding was final and indeed even appealed; and (5) Plaintiff is obviously the same 9 party in the earlier action. See Wige, 713 F.3d at 1185–87 (9th Cir. 2013). 10 Accordingly, the criminal court’s finding of probable cause collaterally estops Plaintiff’s 11 ability to show a lack of probable cause, as required by his malicious prosecution and unlawful 12 detention claim. The City Defendants, therefore, are entitled to summary judgment in their favor. 13 The Court GRANTS City Defendants’ Motion as to Plaintiff’s Seventh Claim for Unlawful 14 Detention and Malicious Prosecution. 15 E. Eighth Claim: Municipal Liability (Monell) 16 Finally, the City moves for summary judgment on Plaintiff’s Monell municipal liability 17 claim for continued unlawful detention and malicious prosecution. Plaintiff’s Monell claim is 18 premised on two theories: (1) the SJPD had a policy or practice of failing to preserve potentially 19 exculpatory evidence, and (2) the SJPD had a policy or practice of failing to train or discipline 20 their employees regarding their constitutional evidentiary obligations. See Opp. City 17–19. 21 “A government entity cannot be held liable under 42 U.S.C. § 1983, unless a policy, 22 practice, or custom of the entity can be shown to be a moving force behind a violation of 23 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 24 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). To establish a governmental entity's 25 liability, a plaintiff must show: “(1) that [the plaintiff] possessed a constitutional right of which he 26 was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 27 indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving force 1 behind the constitutional violation.” Id. at 900 (brackets omitted). Absent a formal policy, 2 plaintiffs must show a “longstanding practice or custom which constitutes the standard operating 3 procedure of the local government entity” that is so “persistent and widespread” that it constitutes 4 a “permanent and well settled city policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 5 More specifically, “a municipal defendant can be held liable because of a failure to 6 properly train its employees [if] the government’s omission [] amount[ed] to a ‘policy’ of 7 deliberate indifference to constitutional rights.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 8 793 (9th Cir. 2016). Although it is “ordinarily necessary” for a plaintiff to demonstrate a “pattern 9 of similar constitutional violations by untrained employees,” a pattern is not necessary where “the 10 unconstitutional consequences of failing to train [are] ‘patently obvious’ and the violation of a 11 protected right [is] a ‘highly predictable consequence’ of the decision not to train.” Id. 12 The Court first addresses Plaintiff’s theory that the SJPD had a policy or practice of failing 13 to preserve potentially exculpatory evidence, such as the victims’ interview audio recordings. As 14 to this theory, Plaintiff has not presented any evidence that Officer Monzon’s and Hall’s failures to 15 upload the victims’ interview recordings were pursuant to a SJPD-wide policy or practice, as 16 opposed to “isolated or sporadic incidents.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 17 (9th Cir. 2011) (quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)). It would be strange 18 indeed for the SJPD, with the one hand, to provide audio recording devices to its officers and set 19 up the DCS database to store files with safeguards against unauthorized deletions and, with the 20 other, to implement a practice thwarting the operation of that system. Accordingly, the Court 21 finds that there is no genuine dispute as to whether there existed a policy or practice of failing to 22 preserve potentially exculpatory evidence. 23 Plaintiff’s second theory claims that there was a SJPD practice or policy for failure to 24 properly train its employees in preserving evidence or a failure to investigate incidents of missing 25 evidence. Opp. City 16, 18–19. In support of this theory, Plaintiff has not provided evidence of a 26 pattern or other incidents where evidence was missing, but he does provide deposition testimony 27 from Officers Hall and Monzon, indicating there were: • No policies requiring officers to confirm files were successfully uploaded to DCS 1 database (Hall Dep. 26:19–27:10); 2 • No policies requiring officers to report missing evidence (Hall Dep. 35:12–24; Monzon Dep. 16:19–17:2); 3 • No policies requiring officers to report software or DCS issues (Hall Dep. 38:16– 4 39:17; 41:11–15); and 5 • No policies for investigating, disciplining, or providing additional training to officers who were involved in incidents of missing evidence (Hall Dep. 42:4–44:13; Monzon 6 Dep. 40:14–41:4). 7 Additionally, Officer Hall testified that he did not believe the missing audio file “was a big deal” 8 and admitted that, at the time, he did not have “the training nor the experience to really understand 9 [that there was a problem]”. Hall Dep. 35:19–24; 39:7–17. He also testified that, when he learned 10 Officer Monzon’s audio recording was also missing, he thought the missing evidence “was most 11 likely a systems error or something.” Hall Dep. 40:23–41:4. That said, Officer Hall also testified 12 that he had received some hands-on training on DCS. Hall Dep. 10:16–11:3. 13 Notwithstanding the absence of a pattern of unconstitutional activity, Plaintiff’s evidence 14 here presents a genuine and triable dispute as to whether the SJPD was deliberately indifferent to 15 the need for further training or investigation to avoid potential Brady violations by its employees. 16 Specifically, the Court finds that a reasonable jury could infer that the loss of potentially 17 exculpatory evidence was an “obvious” or “highly predictable consequence” of the SJPD’s 18 decision not to have policies requiring officers to confirm successful DCS uploads, to report 19 missing evidence or DCS issues, or to receive further DCS training if they were involved in an 20 incident of lost evidence. As the Ninth Circuit held in Kirkpatrick,2 “[t]he lack of a formal policy 21 is not necessarily unconstitutional if” there had been no incident of constitutional import. 843 22 F.3d at 796. “Nor does a single unconstitutional incident [such as Officers Hall’s and Monzon’s 23 failure to upload the interview recordings], without more, establish that a municipality failed to 24 provide proper training.” Id. However, the combination of both of these elements—i.e., (1) SJPD 25 officers’ failure to upload exculpatory evidence on two separate occasions and (2) testimony that 26

27 2 City Defendants do not address or mention Kirkpatrick at all in their reply brief. 1 there was no policy in place to prevent, report, or remediate incidents of missing DCS evidence— 2 “raises more than a spectre of deliberate indifference” that exculpatory evidence may be lost to the 3 detriment of defendants’ constitutional rights. Id. 4 Because the Court finds that there is a genuine dispute as to whether the failure to maintain 5 policies to prevent, report, or remediate incidents of missing DCS evidence would demonstrate 6 deliberate indifference towards the risk of Brady violations, summary judgment on Plaintiff’s 7 Monell claim is inappropriate. Accordingly, the Court DENIES City Defendants’ Motion as to the 8 Eighth Claim for Monell liability against Defendant City of San Jose. 9 * * * 10 In summary, the Court GRANTS IN PART and DENIES IN PART City Defendants’ 11 Motion for Summary Judgment, as follows: 12 • GRANTED as to the FAC’s Fourth Claim against all Officer Defendants; 13 • GRANTED as to the Fifth Claim against Officer Tessler and DENIED as to Officers Monzon and Hall; 14 • GRANTED as to the Sixth Claim against Officer Tessler and DENIED as to Officers 15 Monzon and Hall; 16 • GRANTED as to the Seventh Claim against all Officer Defendants; and 17 • DENIED as to the Eighth Claim against the City of San Jose. 18 IV. COUNTY DEFENDANT 19 The County of Santa Clara moves for summary judgment as to Plaintiff’s Second Claim 20 for Cruel and Unusual Conditions of Confinement, asserted against the County under Monell. 21 County Mot., ECF No. 136. 22 The Monell claim as alleged in the FAC is premised on the County’s policy and practice of 23 deliberate indifference to the excessive force and cruel and unusual punishment violations by its 24 employees, including “isolating people in inhumane conditions.” FAC ¶¶ 253, 255–56. Plaintiff 25 also asserts that the County has failed to train its correction deputies and failed to investigate 26 incidents of constitutional violations. Id. ¶¶ 257, 259. 27 The Court first addresses the parties’ evidentiary objections before turning to Monell. A. Evidentiary Objections 1 Plaintiff moves to strike the Duran Declaration introduced by the County. Opp. County 8– 2 12. The Court DENIES Plaintiff’s motion with respect to Captain Duran’s references to the 3 “Classification Policy, Goals, and Objectives, Policy 13.01, effective as of December 2, 2022,” 4 because the County has attested that the policy was produced in discovery on May 7, 2021. Botha 5 Reply Decl. ¶ 3, ECF No. 158. The Court also DENIES AS MOOT Plaintiff’s motion to strike 6 portions of the Duran Declaration summarizing portions of Plaintiff’s Department of Corrections 7 classification and housing records, because the Court does not rely on Plaintiff’s specific records 8 for its decision. See infra Section IV(B)(2). 9 The County has objected to several exhibits in Plaintiff’s opposition. County Reply 3–6. 10 Most relevantly, the County objected to Plaintiff’s Exhibit T, the “Management Audit of the 11 County of Santa Clara Sheriff’s Custody Operations” (“County Audit”) as hearsay. Federal Rule 12 of Evidence 801(d)(2) provides that a statement is not hearsay if, inter alia, it “was made by a 13 person whom the party authorized to make a statement on the subject,” Fed. R. Evid. 14 801(d)(2)(C), or if it was made “by the party’s agent or employee on a matter within the scope of 15 that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). The County Audit report was 16 exhibited by Plaintiff’s counsel who testified that it was prepared by the Board of Supervisors 17 Management Audit Division and was signed by Cheryl Solov, the Management Audit Manager. 18 Powell Decl. ¶ 11. Ms. Solov’s cover letter also states that the audit “was added to the 19 Management Audit Division’s work plan by the Board of Supervisors of the County of Santa 20 Clara, pursuant to the Board’s power of inquiry specified in Article III, Section 302(c) of the Santa 21 Clara County Charter.” County Audit, Bates stamped PLTF_Rule26_000537. Accordingly, the 22 Court finds that the County Audit may be considered as a non-hearsay statement and DENIES the 23 motion to strike the County Audit. With respect to the remaining objections as to Plaintiff’s 24 untimely disclosed documents and lack of pin citations to exhibits,3 the Court finds such practices 25 26

27 3 Plaintiff purportedly only produced 8 documents out of 37 exhibits in his opposition. See County Reply 5. 1 to be concerning and unbefitting of competent counsel. However, in the interests of engaging with 2 the merits of the case, the Court will decline at this time to strike Plaintiff’s submitted evidence to 3 the extent any portion did not comply with disclosure and citation requirements. 4 Finally, the Court finds good cause and GRANTS Plaintiff’s Motion for Leave to 5 Supplement the Record with the Final Report on the Andrew Hogan incident, prepared by the 6 County’s Office of Correction and Law Enforcement Monitoring (“OCLEM”). ECF No. 211. 7 B. Second Claim: Municipal Liability (Monell) 8 Following Plaintiff’s opposition, the only Monell theories that Plaintiff continues to pursue 9 are: (1) the County’s failure to investigate and deliberate indifference towards deputies’ use of 10 excessive force, Opp. County 15–21; and (2) the County’s custom of housing pretrial detainees in 11 solitary confinement without minimum out-of-cell time, id. at 21–24.4 12 As summarized above in Section III(E), “[a] government entity cannot be held liable under 13 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving 14 force behind a violation of constitutional rights.” Dougherty, 654 F.3d at 900. To establish a 15 governmental entity’s liability, a plaintiff must show: “(1) that [the plaintiff] possessed a 16 constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that 17 this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the 18 policy is the moving force behind the constitutional violation.” Id. Absent a formal governmental 19 policy, plaintiffs must show a “longstanding practice or custom which constitutes the standard 20 operating procedure of the local government entity” that is so “persistent and widespread” that it 21 constitutes a “permanent and well settled city policy.” Trevino, 99 F.3d at 918. 22 1. Deliberate Indifference to Excessive Force 23 Plaintiff maintains that the County is liable under Monell for its deliberate indifference in 24 failing to investigate and discipline incidents of excessive force. Opp. County 15–19. In support, 25

26 4 Plaintiff concedes that the County “does not have a policy, practice, or custom of providing intentionally indifferent medical care for serious medical needs of inmates.” County UMF, Facts 27 44–52. He also concedes that he “was not housed in inhumane condition[s],” though he disputes that he received the minimum out-of-cell time. County UMF, Facts 37–42. 1 he primarily relies on (1) deposition testimony taken in other § 1983 cases involving the County 2 that have since settled; and (2) the County Audit’s finding that the Santa Clara Custody Bureau 3 had failed to provide full access to its “use of force” data. Id. at 16–18, 20–21; see also supra 4 Section II(C)(3). As discussed below, the Court finds that neither set of evidence—individually or 5 in the aggregate—suffice to establish a genuine dispute of material fact as to a practice or custom 6 of excessive force. 7 With respect to the deposition testimony taken in other cases, the Court finds that Plaintiff 8 has not provided evidence that his alleged deprivation of constitutional rights is substantially 9 similar to those other § 1983 cases, such that a jury could infer “that the policy is the moving force 10 behind the constitutional violation.” Dougherty, 654 F.3d at 900. For instance, Plaintiff provides 11 evidence that, in the Rikki Martinez v. County of Santa Clara litigation (Case No. 16-cv-0626- 12 LHK), an IAU investigator had admitted to requiring “clear and convincing” evidence to 13 determine deputies’ culpability instead of “preponderance of the evidence” as required by the IAU 14 Policy. Opp. County 6–7; County UMF, Fact 4. However, Plaintiff does not provide any 15 evidence that this custom or practice occurred in the County’s investigation into his grievance, i.e., 16 that the IAU had reviewed Plaintiff’s grievance using a “clear and convincing” standard. See 17 County UMF, Facts 5–6 (undisputed). Plaintiff also relies on testimony elicited in another case, 18 Aaron Steward v. County of Santa Clara (18-cv-04119-SI), where an IAU investigator had 19 omitted certain facts when forwarding the case to the District Attorney. Opp. County 16–17. 20 Once again, however, Plaintiff neglects to establish the nexus between the practice evidenced in 21 Steward with the facts of Plaintiff’s case.5 County UMF, Fact 5 (undisputed fact that the District 22 Attorney declined to file charges against individual County Defendants). Indeed, this practice of 23

24 5 The same reasoning applies to Plaintiff’s Record Supplement, which involved an IAU 25 investigation that was prematurely closed without explanation or a finding. ECF No. 211-3, at 43–46. Plaintiff does not provide any evidence that—even if this single incident could be 26 considered a custom or practice—it was the custom or practice that deprived Plaintiff of his constitutional rights. Indeed, the OCLEM’s subsequent investigation into the incident and the 27 Board of Supervisors’ order to publicly release the memorandum would suggest that the County is not deliberately indifferent to risks of deficient investigations evidenced in the OCLEM report. 1 relying on other cases litigated by Plaintiff’s counsel is remarkably similar to the strategy 2 expressly rejected in Alegrett v. City & Cnty. of San Francisco, 2014 WL 1911405, at *6 n.5 3 (N.D. Cal. May 13, 2014) (finding that “mere reference” to “four factually dissimilar civil rights 4 actions [the same plaintiff’s counsel] filed against the City over a three-year period . . . do[es] not 5 demonstrate that the City has a policy of condoning excessive force”). 6 And while Plaintiff has exhibited nine depositions from four other cases, he has not 7 exhibited a single deposition taken in this case. See generally Powell Decl. Nor do the opposition 8 brief or Plaintiff’s declaration provide any specific facts regarding the deficiencies of the 9 investigation into his own alleged incident of excessive force. See generally Opp. County 1–8; 10 Johnson County Decl. As a result, the lack of factual development and evidence in Plaintiff’s own 11 case prevent him from being able to raise a genuine issue that his constitutional violation was 12 caused by the policies exhibited in other § 1983 cases against the County. In other words, even if 13 these other cases support a custom or practice, Plaintiff has not established that it was the same— 14 or a substantially similar—custom or practice that deprived him of his constitutional rights. 15 Plaintiff’s reliance on the County Audit’s reported findings regarding the Custody Bureau 16 is also misplaced. Opp. County 20–21. Although the County Audit indicated that the Custody 17 Bureau was not very forthcoming with their “use of force” data (County Audit 32, 38), this alone 18 does not evidence a practice or custom condoning excessive force, similar to the one Plaintiff 19 allegedly experienced. See Lozano v. Cnty. of Santa Clara, 2019 WL 6841215, at *18 (N.D. Cal. 20 Dec. 16, 2019) (dismissing § 1983 complaint where “[a]side from making cursory reference to . . . 21 a “Blue Ribbon Commission” report . . . Plaintiff ha[d] not alleged that any other person was 22 subjected to similar treatment”), aff;d, 2021 WL 4077000 (9th Cir. Sept. 8, 2021). To the 23 contrary, the fact that the County’s Board of Supervisors “promptly established a Blue Ribbon 24 Commission” to “address concerns around inmate treatment and operations within the County 25 Jail” (County Audit 31) would suggest that the County was not deliberately indifferent. As the 26 Supreme Court indicated in Connick v. Thompson, “when city policymakers are on actual or 27 constructive notice that a particular omission in their training program causes city employees to 1 violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the 2 policymakers choose to retain that program.” 563 U.S. 51, 61 (2011) (emphasis added). It 3 follows, therefore, that where policymakers take affirmative action to investigate, identify over 4 600 potential reforms, and implement a new force policy, see supra Section II(C)(1), they cannot 5 be said to be “deliberately indifferent” to constitutional violations arising from prior practices. 6 Finally, to the extent Plaintiff cites one other instance of alleged excessive force that he 7 himself had witnessed (Johnson County Decl. ¶¶ 74–79), a total of two incidents fails to establish 8 a “longstanding practice or custom which constitutes the standard operating procedure of the local 9 government entity” that is so “persistent and widespread” that it constitutes a “permanent and well 10 settled city policy.” Trevino, 99 F.3d at 918. 11 For the reasons outlined above, the Court finds that Plaintiff’s proffered evidence does not 12 raise a genuine and triable issue as to whether the County had a policy, practice, or custom that 13 was deliberately indifferent to his constitutional right to be free from excessive force. 14 2. Custom of Unconstitutional Solitary Confinement 15 Apart from his Monell theory premised on a custom of excessive force, Plaintiff also 16 argues that the County violated his right to receive “constitutionally adequate exercise.” Opp. 17 County 21. This theory is evidenced entirely by “classification records [which] are sufficient to 18 show a custom of housing people in solitary confinement due to their charges only.” Id. at 22. 19 The purported “custom” appears to be the County policy that prevented Plaintiff from being 20 eligible to be “down classed” to a lower security housing on account of his attempted homicide 21 charges. Id. Plaintiff, however, does not argue or explain in his opposition why this housing 22 assignment policy is unconstitutional. Id. at 21–24. In fact, much of Plaintiff’s opposition on this 23 point appear to argue facts not present or relevant in this case. See id. at 23 (alleging that the 24 challenged custom was “using force on mentally ill subjects without accommodating their 25 disability”); 24 (citing to the City of San Jose’s custom “during arrests of mentally ill subjects”). 26 The Court finds that Plaintiff has failed to raise a genuine issue as to whether a policy of 27 classifying pretrial detainees and inmates for housing based on their charges is unconstitutional. 1 Plaintiff also seeks to maintain his Monell claim based on assertions that he was placed in 2 solitary confinement and denied the minimum out-of-cell time. Opp. County 21; Johnson County 3 Decl. ¶¶ 16–36, ECF No. 148. Although the Court would be inclined to find that there may be a 4 genuine dispute as to whether Plaintiff received the mandatory minimum out-of-cell time,6 he has 5 failed to adduce any facts that this failure was a widespread County policy, practice, or custom, as 6 opposed to an isolated or sporadic incident. See, e.g., Hunter, 652 F.3d at 1233. Plaintiff relies on 7 a consent decree against the County entered in a prior case (Case No. 15-cv-05277-RMI), that 8 purportedly brought claims relating to the County’s failure to provide out-of-cell time. Powell 9 Decl., Ex. S. However, the consent decree does not contain any County admissions. To the 10 contrary, it contains a provision expressly barring the use of the decree “in any other case, claim, 11 or administrative proceedings, except that Defendant and its employees and agents may use this 12 Consent Decree and any statement contained herein to assert issue preclusion or res judicata.” Id. 13 Nor would the County Audit provide the basis for finding a policy of out-of-cell time 14 violations. The County Audit expressly “did not find evidence to suggest lack of compliance with 15 the law” and indicated that the County denied any use of solitary confinement against inmates, 16 though the report did note that the County’s out-of-cell time was a “distinct risk area.” County 17 Audit 39. At the summary judgment stage, however, the mere possibility that similar violations 18 may exist fails to satisfy Plaintiff’s obligation to set forth specific facts showing that a genuine 19 issue does indeed exist for trial, much less that such violations amounted to a practice or custom. 20 Accordingly, the Court finds that there is no genuine dispute with regards to Plaintiff’s 21 inability to establish a “longstanding practice or custom” depriving inmates of their mandatory 22 out-of-cell time. Trevino, 99 F.3d at 918. 23 * * * 24 In opposing the County’s Motion for Summary Judgment, Plaintiff relied almost entirely 25 on deposition testimony provided in other § 1983 actions against the County. Such evidence—no 26

27 6 Johnson claims he was locked in his cell for 47 out of every 48 hours. Johnson County Decl. ¶¶ 23, 30, 34; see also supra Section II(C)(4). 1 matter how strongly indicative of a practice or customs in their respective cases—cannot make up 2 for a lack of factual development in Plaintiff’s own case, specifically his failure to establish a 3 common nexus to those other practices or customs. Nor does his citation to the County Audit 4 satisfy Plaintiff’s obligation to set forth specific facts evidencing a genuine issue; if anything, the 5 Audit would undermine Plaintiff’s ability to demonstrate the County’s deliberate indifference, as 6 required by Monell. 7 For these reasons, the Court finds that Plaintiff has failed to present a genuine issue of 8 material fact with respect to the Second Claim of municipal liability against the County. The 9 County’s Motion for Partial Summary Judgment is GRANTED. 10 V. DEFENDANT LUBRIN 11 Finally, Defendant Lubrin moves for summary judgment as to the one claim against him: a 12 § 1983 claim for violation of Plaintiff’s Fourteenth Amendment right to be free from cruel and 13 unusual conditions of confinement. ECF No. 164. Lubrin argues that (1) there is no evidence that 14 he violated any of Plaintiff’s Fourteenth Amendment rights and (2), even if he did, he is entitled to 15 qualified immunity because there was no clearly established legal authority that his conduct was 16 unconstitutional. Id. 17 A. Fifth Amendment Waiver 18 Plaintiff argues that Lubrin’s Motion should be denied outright because he had previously 19 invoked his Fifth Amendment rights to decline answering significantly portions of the FAC. Opp. 20 Lubrin 3–5. However, Lubrin’s Motion does not rely on any new affirmative testimony he has 21 provided but rather is premised on Plaintiff’s own affirmative admissions and allegations. See 22 Stock Decl. ¶¶ 2–3 (attaching only Plaintiff’s deposition and the County’s separate statement of 23 facts as exhibits), ECF No. 163. The Court, accordingly, declines Plaintiff’s invitation to deny the 24 Lubrin Motion on the basis of alleged Fifth Amendment waiver. 25 B. Constitutional Violation 26 The FAC asserts that Lubrin violated Plaintiff’s rights to be “free from cruel and unusual 27 conditions of confinement” and “free from the use of excessive force by correctional deputies and 1 other government actors.” FAC ¶ 248. Plaintiff, however, concedes that “Lubrin did not subject 2 Plaintiff to excessive force.” Lubrin UMF, Facts 31, 34 (undisputed). In his opposition, Plaintiff 3 only argues that Lubrin engaged in “aggressively punitive and assaultive behavior” by “enter[ing] 4 the Plaintiff’s cell while repeatedly saying to Plaintiff that he would perform cavity searches on all 5 the black prisoners – such as himself.” Opp. Lubrin 6–7. This assault “contribut[ed] to a string of 6 unacceptable conditions of confinement which in their totality added up to a Fourteenth 7 Amendment violation.” Id. at 8. 8 Plaintiff’s theory is unfounded. The consistent law in this circuit has been that mere 9 threats of bodily harm fail to state a cause of action under § 1983—indeed, the Ninth Circuit had 10 previously characterized Plaintiff’s suggestion as “trivializ[ing] the eighth amendment.” Gaut v. 11 Sunn, 810 F.2d 923, 925 (9th Cir. 1987); see also Vaughn v. Smith, 127 F.3d 1108 (9th Cir. 1997) 12 (holding that racist remarks and threats to an inmate’s life did not rise to the level of an Eighth 13 Amendment violation). At the very least, Lubrin would also be “entitled to qualified immunity as 14 Gaut was [and is] the law of the Ninth Circuit at the time of the alleged threats and harassment.” 15 Hayes v. Cambra, 203 F.3d 831 (9th Cir. 1999). 16 Plaintiff cites no authority that suggests mere threats—without the infliction of any actual 17 force—would constitute cruel and unusual conditions of confinement or, indeed, any 18 constitutional violation. The only case he cites involved a plaintiff that had expressly pled an 19 assault claim under California law. Opp. Lubrin 7 (citing Austin v. Terhune, 367 F.3d 1167 (9th 20 Cir. 2004)). Here, the FAC contains no allegation to support an assault claim against Lubrin. The 21 persistent inquiry has been whether Lubrin violated Plaintiff’s constitutional rights, not whether 22 his actions constituted assault. Plaintiff’s attempts to move the goal posts are not well taken. 23 Accordingly, the Court GRANTS Lubrin’s Motion for Summary Judgment. 24 VI. CONCLUSION 25 Based on the foregoing, Defendants’ Motions for Summary Judgment are GRANTED IN 26 PART and DENIED IN PART. 27 Specifically, the City Defendants Motion is GRANTED as to the FAC’s Fourth Claim 1 against all Officer Defendants; GRANTED as to the Fifth Claim against Officer Tessler and 2 DENIED as to Officers Monzon and Hall; GRANTED as to the Sixth Claim against Officer 3 Tessler and DENIED as to Officers Monzon and Hall; GRANTED as to the Seventh Claim against 4 all Officer Defendants; and DENIED as to the Eighth Claim against the City of San Jose. 5 The County’s Motion for Partial Summary Judgment on the FAC’s Second Claim is 6 GRANTED. 7 Defendant Lubrin’s Motion for Summary Judgment on the FAC’s First Claim is 8 GRANTED. 9 IT IS SO ORDERED. 10 Dated: March 21, 2023 11 a (12

EDWARD J. DAVILA

13 United States District Judge

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ORDER GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT