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Bini v. City of Vancouver

United States District Court, W.D. Washington, Tacoma

May 22, 2017

GUIDO BINI, Plaintiff,
v.
CITY OF VANCOUVER, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on the joint motion for summary judgment (Dkt. 28) of City of Vancouver (“City”) and Officer Sandra Aldridge (“Aldridge”) (collectively “Defendants”). Also before the Court is Plaintiff Guido Bini's (“Plaintiff”) motion to continue. Dkt. 44. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants the motion for summary judgment in part, denies it in part, and declines to exercise supplemental jurisdiction over Plaintiff's surviving state law claims.[1]

         I. PROCEDURAL HISTORY

         On June 9, 2016, Plaintiff filed his complaint against Defendants claiming violations of constitutional rights actionable under 42 U.S.C. § 1983, a violation of the Washington State Criminal Records Privacy Act (“CRPA”), abuse of process, false arrest, false imprisonment, and negligence. Dkt. 1.

         On September 1, 2016, the City moved to dismiss. Dkt. 9. On October 28, 2016, the Court granted the motion in part and denied it in part, dismissing Plaintiff's claims against the City but granting Plaintiff leave to amend. Dkt. 16. On December 15, 2016, Plaintiff filed an amended complaint. Dkt. 22.

         On March 2, 2017, Defendants jointly moved for summary judgment. Dkt. 28. On March 20, 2017, Plaintiff responded. Dkt. 41. On March 24, 2017, Defendants replied. Dkt. 49.

         On March 23, 2017, Plaintiff moved to continue the Court's consideration on the motion for summary judgment. Dkt. 44. On April 3, 2017, Defendants responded. Dkt. 52. On April 7, 2017, Plaintiff replied. Dkt. 56. On April 11, 2017, Defendants filed a surreply. Dkt. 59.

         II. FACTUAL BACKGROUND

         In 2014, Aldridge was monitoring jail communications between Plaintiff and Garrett Smith while Garrett Smith was awaiting a trial which would ultimately result in his conviction for second degree assault and the attempted murder of his wife, Sheryl Smith (“Smith”). Dkt. 22 at 3; Dkt. 29 at 2-4; Dkt. 31-2; Dkt. 9-1.

         At that time, and as a result of Plaintiff's communications with Garrett Smith, Plaintiff's girlfriend began publishing and maintaining a webpage called “Garrett's Voice” (the “blog”). Dkt. 22 at 3; Dkt. 30-1 at 62, 74-78. The website made many disparaging statements about Sheryl Smith's character, claiming that she was a “fraud, ” “an excessive drinker, ” and that the horrendous injuries inflicted by Garrett Smith were actually the result of her “own alcohol-induced rage.” Dkt. 29-2; Dkt. 30-1 at 58-59; Dkt. 31 at 3; Dkt. 31-1 at 4-5. See also Dkt. 32 at 9 (documenting Smith's injuries). The website was also highly critical of Aldridge, the Vancouver Police Department, the judiciary in Clark County and their work on Garrett Smith's case. Dkt. 22 at 3; Dkt. 31-2. At the request of Garrett Smith, Plaintiff also began contacting common business associates and family members of Sheryl and Garrett Smith. Dkt. 30-1 at 76-77, 79-82. Plaintiff's contact with these persons included sending them emails with links to and copies of the information posted on the blog. Dkt. 25 at 3. See also Dkt. 30-1 at 76-77, 79-82. Based on the content of the blog, Plaintiff's jail communications with Garrett Smith, and complaints by Smith, Aldridge started investigating Plaintiff for cyberstalking in violation of RCW 9.61.260. Dkt. 24 at 3-4; Dkt. 29 at 3.

         On April 29, 2014, Smith obtained a temporary anti-harassment order against Plaintiff. Dkt. 30-2 at 2-3. Later that day, Aldridge went to Plaintiff's home, served Plaintiff with the protective order, and issued a warning regarding the blog. Dkt. 24 at 3- 4; Dkt. 29 at 4. The blog was temporarily removed, but was subsequently republished. Id. On May 7, 2014, Aldridge arrested Plaintiff, improperly concluding that he had committed felony cyberstalking in violation of RCW 9.61.260(3). Dkt. 24 at 4. Felony cyberstalking under RCW 9.61.260(3) requires a previous conviction of a crime of harassment as defined under RCW 9A.46.060 as a mandatory element, while cyberstalking as a gross misdemeanor under RCW 9.61.260(1) does not. See RCW 9.61.260. Plaintiff has not been convicted of a crime of harassment as defined under RCW 9A.46.060. Dkt. 22 at 4. Although Aldridge was wrong in her assessment that Plaintiff had committed felony cyberstalking, this assessment and her decision to arrest were based on her belief that Plaintiff had violated a temporary anti-harassment order. Dkt. 24 at 4. On May 12, 2014, a county deputy prosecutor declined to file an information against Plaintiff. Dkt. 34-1.

         On May 28, 2014, Smith obtained an anti-harassment order against Plaintiff. Dkt. 31 at 5; Dkt. 30-4. At the hearing on the order, Plaintiff appeared and testified. See Dkt. 30-1. In his testimony, Plaintiff made statements indicating that (1) he had consulted with his girlfriend regarding information to post on the blog about Smith, (2) he contacted at least 12 friends and family members of Smith in order to disseminate the blog at the direction of Garrett Smith, and (3) he understood how the information he disseminated would be embarrassing and harassing in nature. Id. at 76-77, 79-82. Notably, on appeal of the anti-harassment order, the Clark County Superior Court concluded that it was lawful for the County District Court to enter a protective order against Plaintiff, stating:

Mr. Bini admitted that he contacted these individuals for the purpose of “mak[ing] them aware of the blog”; “mentioning” the underlying criminal proceeding against Mr. Smith; and informing them that Ms. Smith was a fraud, a drunk and subject to habitual drinking rages. Furthermore, Mr. Bini admitted he had no knowledge whether or not these allegations were true, and admitted that these statements were embarrassing and harassing in nature.
With respect to the publication of the blog, Mr. Bini further admitted that he provided the details to his so called girlfriend to post certain information about Ms. Smith, and had discussions with her to post said derogatory comments.
The evidence presented at the district court level showed that Ms. Smith felt intimidated, harassed, and humiliated. The conduct engaged by Mr. Bini served no lawful purpose.

Dkt. 30-5 at 9.

         Based on the statements made at the May 28, 2014, hearing, combined with the information she already had, Aldridge continued to pursue the prosecution of Plaintiff for cyberstalking. On May 30, 2014, after receiving a copy of the hearing transcript, Aldridge prepared a supplemental probable cause statement and issued a “Be on the Look Out” (“BOLO”) advising officers who came into contact with Plaintiff that there was probable cause for his arrest. Dkts. 25, 26.

         On June 10, 2014, Plaintiff filed a complaint with the city police department, complaining that Aldridge had arrested him on May 7, 2014, without probable cause. Dkt. 42-4. On July 1, 2014, the complaint was forwarded to Aldridge by her supervisor. Id. at 2. While there is no further admissible evidence on the matter, Plaintiff's amended complaint alleges that the reviewing law enforcement authority ultimately dismissed the complaint on October 22, 2014, concluding that the complaint was “unfounded” and that there was “no merit to the complaint by GUY BINI.” Dkt. 22 at 8.

         On July 3, 2014, Aldridge met with the Vancouver City Attorney to discuss whether the prosecutor would pursue charges against Plaintiff for misdemeanor cyberstalking. Dkt. 27 at 5; Dkt. 29 at 6; Dkt. 46 at 2-4. The City Attorney declined on the basis that, although he believed there was probable cause to arrest Plaintiff, he would require additional witnesses that were willing to testify before he could prove every element of cyberstalking beyond a reasonable doubt. Dkt. 33; Dkt. 46 at 3. Accordingly, the City Attorney requested that Aldridge find additional witnesses who were willing to testify to receiving multiple emails from Plaintiff before he would file an information and pursue charges. Dkt. 29 at 6; Dkt. 46 at 2-4.

         After the City Attorney declined to prosecute without additional witnesses, Aldridge was unable to locate any additional witnesses who were willing to testify that they had received multiple emails from Plaintiff. Dkt. 29 at 6. Nonetheless, Aldridge did not remove from the computer system the BOLO notifying her fellow officers that there was probable cause to arrest Plaintiff. Id. On October 24, 2014, city police officers arrested Plaintiff pursuant to the outstanding BOLO. Id. On the way to the jail, the arresting officers contacted Aldridge to inform her that they had arrested Plaintiff under the outstanding BOLO, whereupon Aldridge informed them that Plaintiff should be released. Id.; Dkt. 42 at 2.[2] The officers then immediately released Plaintiff and returned him to his home. Dkt. 22 at 9; Dkt. 29 at 6.

         On November 10, 2014, the City Attorney reached a final decision not to file charges against Plaintiff for cyberstalking. Dkt. 42-3. In a letter informing Smith that the City would not prosecute Plaintiff, a city attorney stated:

Prosecution is declined. There is insufficient evidence to charge [Guy Bini] with a crime. This does not imply that the City of Vancouver does not believe that the events occurred as relayed to the police; we simply cannot pursue criminal charges based on the evidence given. The decision does not affect any form of civil litigation you may wish to pursue for these allegations.

Id. at 2.

         On March 25, 2015, Aldridge provided Sheryl Smith's attorney with a declaration and two non-redacted police incident reports she had authored in relation to her investigation and arrest of Plaintiff. Dkt. 29-7 at 5. Although the copies of the incident reports actually attached to that declaration have not been submitted to the Court, Plaintiff argues that the reports included non-redacted personal identifiers, including Plaintiff's date of birth, physical description, driver's license number, address, and phone number. Dkt. 22 at 9-11. See also Dkts. 24, 27.[3] Aldridge provided the incident reports to Smith for the purpose of helping Smith obtain a protective court order in the divorce proceedings between her and her husband. Dkt. 31 at 5. Smith sought the protective order to prevent her husband and Plaintiff from using discovery requests to obtain documents they might post on the blog and further disseminate to her associates and family. Dkt. 31-5. In her motion for the protective order, Smith stated:

On or about June 3, 2013, I was brutally beaten and left for dead by [my husband, Mr. Smith]. Around March, 2014 during Mr. Smith's incarceration and awaiting trial, he contacted a gentlemen by the name Guido A. Bini. Mr. Bini began acting as Mr. Smith's proxy from that point on.
Mr. Bini began by contacting my past employer, Keller Williams and the Department of Licensing, alleging that I was a criminal and should not be allowed a real estate license. He went as far as filing an actual complaint with the Department of Licensing. In Mr. Bini's complaint he claimed I was selling homes without a license, falsely representing myself, and not using my real name or going by many different aliases . . . .
Mr. Bini continued his harassment by contacting my real estate partners, associates and a client by telephone and then mailing them material he created, stating that I have lied about my injuries I sustained from the Petitioner, my criminal history, I am a dangerous and deceitful person, and that I should not be trusted or believed. He also created a blog putting all his lies on it about me.
I was granted an Anti-Harassment Order; however, Mr. Bini has appealed the decision, which that matter is still pending. Since the time the Order was entered, Mr. Bini has had his girlfriend by the name of Traci D. Eccles maintaining a blog. The blog is called “Garrett's Voice… The Sequel”. This blog shows clips from the Petitioner's criminal trial, passages from my deposition, numerous attacks on my character as well as attacks on the prosecutor and judge.
I am terrified to reveal anything that has to do with me, my life, my career or any connections to anyone for fear of retribution to these business friends, associates, and business firms. It has already been shown that any information I provide will be placed on the blog, misconstrued, or used in furtherance for the attack on my character and my life. I truly feel unsafe! Garrett and his ‘team' I feel are out to get me and destroy my credibility in the community.

Dkt. 31-5 at 3-4. The Clark County Superior Court granted her request and issued the protective order. Dkt. 30-6 at 6; Dkt. 30-7.

         III. DISCUSSION

         A. Summary Judgment Standard

         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine dispute of material fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The determination of the existence of a material factual dispute is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial-e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).

         B. 42 U.S.C. § 1983 Claims Against Officer Aldridge

         42 U.S.C. § 1983 is a procedural device for enforcing constitutional provisions; the section does not create or afford substantive rights. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). In order to state a claim under § 1983, a plaintiff must demonstrate that (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or by the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).

         Additionally, “[a] police officer is entitled to qualified immunity in a § 1983 action unless (1) the facts, when taken in the light most favorable to the plaintiff, show that the officer's conduct violated a constitutional right; and (2) the right was clearly established at the time of the alleged misconduct.” Sinclair v. City of Grandview, 973 F.Supp.2d 1234, 1246 (E.D. Wash. 2013) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009)). “Courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.'” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (quoting Pearson, 555 U.S. at 236).

         The inquiry of whether an officer is entitled to qualified immunity “turns on the ‘objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.'” Pearson, 555 U.S. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). This “qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011) (quoting Rodis v. City of San Francisco, 558 F.3d 964, 970-71 (9th Cir. 2009), cert. denied, 558 U.S. 1110 (2010)).

         1. Fourth Amendment Claims

         “To prevail on [a] § 1983 claim for false arrest . . . [a plaintiff must] demonstrate that there was no probable cause to arrest him.” Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). Also, “an official with no official authority over another actor can also be liable for that actor's conduct if he induces that actor to violate a third party's constitutional rights, provided that the official possesses the requisite intent, such as retaliatory animus.” Lacey v. Maricopa Cty., 693 F.3d 896, 916 (9th Cir. 2012) “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “[A]n arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.” Id. at 153. The officer's “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id.

         In his legal argument, Plaintiff has failed to define the parameters of his claimed Fourth Amendment deprivations, instead stating only generally that Aldridge lacked probable cause to arrest him. See Dkt. 41 at 16. However, Plaintiff's statement of facts indicate that he is bringing Fourth ...


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