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Mendoza v. City of Vancouver

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

August 29, 2017

CARLOS MENDOZA, individual, and as guardian of L.M., his minor child, Plaintiffs,
v.
CITY OF VANCOUVER, a Municipality; VANCOUVER POLICE DEPARTMENT, an agent of the City of Vancouver; MONICA HERNANDEZ and “JOHN DOE” HERNANDEZ, husband and wife, individually and the marital community thereof; BARBARA KIPP and “JOHN DOE” KIPP, husband and wife and the martial community thereof, Defendants.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND OTHER MOTIONS AND ORDER TO SHOW CAUSE

          ROBERT J. BRYAN, United States District Judge

         This matter comes before the Court on the Defendants' Motion for Summary Judgment (Dkt. 58) and Plaintiffs' Motion for Partial Summary Judgment (Dkt. 68), Plaintiffs' two Motion to Strike (Dkts. 68 (refiled at 86 and 87); and 97) and Defendants' Renewed Motion to Exclude Gregory Gilbertson (Dkt. 73). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

         Plaintiffs filed this case asserting that their constitutional rights were violated when Plaintiff Carlos Mendoza was arrested and his son, Plaintiff L.M., was taken into protective custody. Dkt. 4-4. Plaintiffs seek damages as well as attorneys' fees and costs. Id. Defendants move for summary dismissal of all claims (Dkt. 58) and Plaintiffs move for summary judgment on the issues of whether Defendant Vancouver Police Department Detective Monica Hernandez had legal authority to arrest Plaintiff Mendoza, whether Defendant Vancouver Police Department Detective Sergeant Barbara Kipp had legal authority to take L.M. into custody, and whether Defendant Kipp had cause to believe L.M. had been neglected (Dkt. 68). For the reasons provided, the Defendants' motion (Dkt. 58) should be granted, in part, and stricken, in part; Plaintiffs' motion for partial summary judgment (Dkt. 68) should be denied as it relates to the federal claims, and stricken as it relates to the state law claims; Plaintiffs' motions to strike (Dkts. 68 (refiled at 86 and 87) and 97) should be denied; and Defendants' Renewed Motion to Exclude Gregory Gilbertson (Dkt. 73) should be stricken. Further, the parties should be ordered to show cause, if any they have, why this Court should not decline to exercise supplemental jurisdiction over the state law claims and remand the case to Clark County, Washington Superior Court.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY

         This case involves an unusual number of people. Attached to the order is a list of parties, witnesses and others, with a brief explanation of their roles.

         A. RELEVANT FACTS

         On April 23, 2014, the Washington State Department of Social and Health Services (“DSHS”) filed a dependency petition in Clark County, Washington Juvenile Court alleging that Plaintiff Mendoza's son, L.M., was dependent because of abuse allegations against the child's mother, Tara Mendoza. In re Dependency of L.M., Clark County Superior Court case number 14-7-00508-5, in the record at Dkt. 59-12, at 2-8. L.M., who at the time was a year old, had a total of eight broken bones in his arms and legs. Id. Tara Mendoza was arrested by Defendant Hernandez around April 30, 2017, on charges of first degree assault of a child. Washington v. Tara Mendoza, Clark County, Washington Superior Court case number 14-5521, in the record at Dkt. 60-1, at 10. On May 1, 2014, a no-contact order was entered in the criminal case preventing Tara Mendoza from having contact with L.M. Washington v. Tara Mendoza, Clark County, Washington Superior Court case number 14-5521, in the record at Dkt. 76-1, at 20.

         Plaintiff Mendoza, an E2 in the United States Marines, was stationed at Meridian Naval Air Station in Meridian, Mississippi for a ten day training program (which occurred right after he graduated from boot camp). Dkt. 84, at 3, refiled as redacted at Dkt. 90. He was notified of the allegations regarding Tara Mendoza and L.M. around April 23, 2014. Dkt. 60-1, at 15. On April 29, 2014, he received orders and flew to his first permanent duty station in North Carolina. Dkt. 84, at 3, refiled as redacted at Dkt. 90.

         After receiving permission from his North Carolina command for two days of emergency humanitarian leave, on Thursday night, May 1, 2014, Plaintiff arrived in Vancouver, Washington. Dkt. 84, at 3, refiled as redacted at Dkt. 90. Plaintiff Mendoza was ordered to check in with Swan Island Oregon Reserves Station in Portland, Oregon (“Swan Island”), to attempt to get a temporary transfer to a Marine unit there in order to address his family issues. Id. (Vancouver, Washington and Portland, Oregon are separated only by the Columbia River). He states that “as a new Marine” he did not fully “understand how things worked, ” and arrived without the leave order paperwork in his possession. Id. His temporary leave expired at midnight on May 2, 2014, and he had to return to North Carolina if he did not get the temporary transfer to Swan Island. Id.

         The next morning, May 2, 2014, he attended a juvenile court hearing at 9:00 a.m. across from the main Clark County, Washington courthouse and jail. Dkt. 84, at 3, refiled as redacted at Dkt. 90. According to Plaintiff Mendoza, around 10:30 or 11:00 a.m., he walked over to the jail to speak to his then wife, Tara Mendoza, about the situation. Id. (The jail has a rule that new arrests can't have visitors for 72 hours, but Plaintiff Mendoza states he was not informed of this rule). Id. He talked to the person on the front desk, explained that he only had two days leave, that he left his paperwork in North Carolina, and was going to try to get attached to the Marines at Swan Island, but had not talked to them yet. Id., at 3-4. Plaintiff Mendoza claims that he said that he was not sure if he could get attached to Swan Island, and that if not, he would have to return to North Carolina. Id., at 4. Plaintiff Mendoza stated that he was told he would have to see a supervisor. Id. Plaintiff Mendoza explained his situation again, and stated that the supervisor told him to return around 5:00 p.m. and that they could “make it happen.” Id.

         Scott Pilakowski, the corrections sergeant and supervisor on duty at the jail for the Clark County Sheriff's Office that day, filed a declaration in this case that states that Plaintiff Mendoza told him that he had to return to North Carolina and that he was attempting to get an extension to the United States Marine Corps office in Portland, “but that his request was not granted.” Dkt. 21, at 2. Sergeant Pilakowski further states that based on Plaintiff Mendoza's statements, he allowed Plaintiff Mendoza to visit Tara Mendoza. Id.

         Plaintiff Mendoza states that he then drove to the Swan Island base, arriving around 1:00 p.m. Dkt. 84, at 4, refiled as redacted at Dkt. 90. He spoke to a female Marine, who he asserts told him that they would have to verify his information with North Carolina because he arrived without his leave paperwork. Id. Plaintiff asserts that around 3:00 or 4:00 p.m., he received a call from “Sgt. Wick who told [him] they had verified the information with [his] North Carolina command and they would officially attach [him] the following day.” Id., at 5.

         Plaintiff Mendoza states that he returned to the jail at 5:00 p.m. and visited Tara Mendoza for about an hour. Id. He did not tell the jail personnel that his transfer to Swan Island had been approved.

         Defendant Hernandez states that she recognized Plaintiff Mendoza as he entered the jail and made contact with him after he visited with Tara Mendoza. Dkt. 60, at 3. (Earlier that day Defendant Hernandez called the jail and asked if Tara Mendoza's property had been released; she asserts that they told her it had been released to Karen Ruggiero, a friend of Tara Mendoza and a witness in the child abuse case. Dkt. 60-1, at 18. She maintains that she then called Karen Ruggiero who told her that she gave Tara Mendoza's wallet and cell phone to Plaintiff Mendoza around 8:00 a.m. that day. Dkt. 60-1, at 18.) Defendant Hernandez states that she asked Plaintiff Mendoza if he had Tara Mendoza's cell phone or iPad. Dkt. 60-5, at 4. Plaintiff Mendoza told her he had the iPad in his vehicle, but did not know where Tara Mendoza's cell phone was. Dkt. 60-1, at 19. Around 9:00 p.m., Plaintiff Mendoza signed a consent form and agreed to allow Defendant Hernandez to search his vehicle. Dkt. 60-4, at 2. She found the iPad. Dkt. 60, at 3. Defendant Hernandez told Plaintiff Mendoza not to contact anyone involved in the case for the next three hours while she served search warrants related to the criminal case against Tara Mendoza, and he agreed. Dkt. 60-5, at 4.

         According to Defendant Hernandez, while serving the last warrant, Katherine Ruggiero showed up on the scene looking for Taryn Park's (another witness to the child abuse case) cell phone. Dkt. 60-5, at 4. Defendant Hernandez stated in her police report that Ruggiero told her that she didn't know that a warrant was being served for Taryn Park's phone, but that about 30 minutes prior, Plaintiff Mendoza told her to get to Park's house and get Park's phone. Id. (In a written statement Ruggiero stated that Plaintiff Mendoza asked about pictures of [L.M.] the night he was taken into CPS custody, and she told him “on Tye's phone” and “he asked could [she] obtain them, ” and she agreed. Dkt. 60-8, at 4. When Ruggiero asked him what was going on, [Plaintiff Mendoza] told her he couldn't tell her then, but to call him at 2:30 a.m. Id.) Ruggiero also purportedly stated to Defendant Hernandez that she thought Tara Mendoza's phone was at Sandra Schatz's residence because Plaintiff Mendoza and she discussed Schatz keeping the phone because Schatz was not involved in the case. Dkts. 60-5, at 4 and 60-8, at 2.

         In a supplemental police report, Defendant Hernandez states that she called the Clark County jail and spoke with Custody Officer Paddy on May 5, 2014. Dkt. 60-9, at 2. According to her, Custody Officer Paddy was working at the visitor's desk around 5:00 p.m. on May 2, 2014 when Plaintiff Mendoza was trying to get into the jail to see Tara Mendoza. Id. Custody Officer Paddy asserted that Plaintiff Mendoza told him “he may be shipped overseas and that he had to leave the next day.” Id. Custody Officer Paddy stated that Plaintiff Mendoza then met with the supervisor to discuss his situation. Id. In a separate supplemental police report, Defendant Hernandez states that Custody Officer Paddy and Sergeant Pilakowski were contacted again on May 6, 2014 about 6:00 a.m. regarding Plaintiff Mendoza and his visit with Tara Mendoza in the jail on May 2, 2014. Dkt. 60-1, at 20. Detective Hernandez relates:

Custody Officer Paddy said [Plaintiff Mendoza] was in his dress uniform when he told him he was going overseas but would like to meet with his wife before he left. Custody Officer Paddy notified Custody Sergeant Pilakowski and Sergeant Pilakowski spoke with [Plaintiff Mendoza] alone. [Plaintiff Mendoza] told Sergeant Pilakowski he was trying to get permission from the Portland office to stay in the area but it was not granted. He also said [Plaintiff Mendoza] told him that the military doctor had reviewed the medical records pertaining to L. and that there was only one fracture and that it was the doctor's opinion that it was not child abuse. Sergeant Pilakowski said that he then obtained permission from the commander to allow [Plaintiff Mendoza] a visit.

Dkt. 60-1, at 20. Defendant Kipp states in a police report that she spoke to Sergeant Pilakowski at Defendant Hernandez's request. Dkt. 61-1, at 3. Defendant Kipp asked Sergeant Pilakowski if Plaintiff Mendoza “wanted the rules changed to accommodate him and [Sergeant Pilakowski] said that [Plaintiff Mendoza] did not specifically ask that.” Dkt. 61-2, at 3.

         According to Defendant Hernandez, before 9:00 a.m. on May 6, 2014, she contacted U.S. Marine Corp Major Chad Hailey at Swan Inland. Dkt. 60, at 3-4. Major Hailey stated that on May 2, 2014 around 2:00 p.m. he told Plaintiff Mendoza that he would be allowed to stay in Washington through the duration of the [dependency] case involving L.M. Dkt. 60, at 3-4.

         On May 6, 2014, Plaintiff Mendoza attended a 9:00 a.m. shelter care hearing for his son in his dress military uniform. Dkt. 76-1, at 9. He was granted supervised visitation with L.M. three times a week for two hours a visit. Dkt. 59-13, at 2.

         Right after the hearing, Defendant Hernandez arrested Plaintiff at the courthouse for the misdemeanor of making a false statement to a public servant when requesting to visit Tara Mendoza on May 2 at the jail. Dkt. 60, at 4. Defendant Hernandez did not place Plaintiff Mendoza in her car, which was in the courthouse parking lot, but, instead, walked him, handcuffed, two blocks away to the police station. Dkt. 60, at 4-6.

         Plaintiff Mendoza was detained until that evening at which time he posted bail and was released. Dkt. 76-1, at 15. He was charged with the misdemeanor of making a false or misleading material statement to a public servant contrary to RCW 9A.76.175. City of Vancouver v. Mendoza, Clark County, Washington District Court case number 136892.

         The next day, on May 7, 2014, Defendant Hernandez served a warrant for Tara Mendoza's phone at Sandra Schatz's residence. Dkt. 60-5, at 4. Although the police did not find the phone during the search, Schatz told them Plaintiff Mendoza had discussed her keeping the phone and he had access to her property. Dkt. 60-5, at 4 and 60-8, at 3. Schatz later called the police, reported she found Tara Mendoza's phone, and turned it over to them. Dkt. 60-5, at 4.

         Plaintiff Mendoza was charged with tampering with evidence in connection with his handling of Tara Mendoza's cell phone and criminal conspiracy with Sandra Schatz to conceal the cell phone from police. City of Vancouver v. Mendoza, Clark County, Washington District Court case number 136893. Plaintiff Mendoza was further charged with obstructing a law enforcement officer related to sending Ruggiero over to Park's house the night he was told not to discuss the case with anyone while Defendant Hernandez was serving warrants. City of Vancouver v. Mendoza, Clark County, Washington District Court case number 136894.

         Although Plaintiff Mendoza and Tara Mendoza attempted to reconcile their marriage for a few months, after Tara Mendoza hit Plaintiff Mendoza with her car in July of 2014, a no contact order was entered protecting Plaintiff Mendoza from contact with Tara Mendoza. Washington v. Tara Mendoza, Clark County, Washington Superior Court case number 14-1-01578. A separate no contact order was entered on August 5, 2014, protecting Plaintiff Mendoza and L.M. from having contact with Tara Mendoza. Mendoza v. Mendoza, Clark County, Washington Superior Court no contact order number 14-2-07709-6; in the record here at Dkt. 76-1, at 22-25. Tara Mendoza pled guilty to assault in the third degree - domestic violence on October 23, 2014, and was sentenced to jail time. Washington v. Tara Mendoza, Clark County, Washington Superior Court case number 14-1-01578, Judgement and Sentence in the record at Dkt. 76-1, at 26-38.

         Plaintiff Mendoza filed a Petition for Declaration Concerning Validity of Marriage (asserting the Mendozas' marriage was invalid because the divorce from her first marriage was not final when they married) and requested that the court enter a parenting plan regarding L.M. on August 28, 2014. In re the Marriage of Carlos and Tara Mendoza, Clark County, Washington Superior Court case number 14-3-01748-8. The marriage was found not to be valid. Dkt. 76-1, at 8. On September 17, 2014, a parenting plan was entered, prohibiting contact between Tara Mendoza and L.M. In re the Marriage of Carlos and Tara Mendoza, Clark County, Washington Superior Court case number 14-3-01748-8, in the record at Dkt. 76-1, at 39-45.

         On November 25, 2014, Plaintiff Mendoza moved to have the first dependency case dismissed. In Re the Interest of: [L.M.], Clark County, Washington Juvenile Court case number 14-7-00508-5, in the record at Dkt. 76-1, at 17. In his Declaration in support of the motion, Plaintiff Mendoza informed the Court that Tara Mendoza's criminal trial on the child abuse charges was scheduled to go to trial in January of 2015. Id., at 18. He notified the Court that there was “a no-contact order in the criminal case (14-1-00877-5) preventing [Tara Mendoza] from having contact with [L. M.], ” a “no-contact order in a protection order matter that [Plaintiff Mendoza] filed (14-2-07709-6), preventing [Tara Mendoza] from contacting [Plaintiffs], a “non-contact order preventing [Tara Mendoza] from having contact with me in the domestic violence assault case against [Tara Mendoza] (14-1-01578-0), and a “no visitation clause in the temporary parenting plan [Plaintiff Mendoza] obtained on September 17, 2014 (14-3-01748-8).” Id. Plaintiff Mendoza further stated that he was in the military, being stationed out of state, and had housing and daycare arranged for L.M. Id. He asserted that he understood DSHS is “not opposed to a dismissal under these circumstances, as [L.M.] is and shall remain protected under [his] care.” Id., at 19.

         Tara Mendoza was released from custody on bail around November 24, 2014. Dkt. 61-2, at 2. A few days later, DSHS received a report that Tara Mendoza made contact with L.M. via Skype in violation of the no contact orders. Id.

         On December 4, 2014, the dependency case was dismissed; the court was not informed that Tara Mendoza had allegedly made contact with L.M. Dkt. 76-1, at 46-47.

         On December 8, 2014, Plaintiff Mendoza filed a motion in the criminal case Washington v. Tara Mendoza, Clark County, Washington Superior Court case number 14-1-01578-0, (charges related to Tara Mendoza hitting Plaintiff Mendoza with her car), to have the no contact order between Plaintiff Mendoza and Tara Mendoza dismissed. Dkt. 98, at 29. Plaintiff Mendoza stated:

CPS dismissed their action against my wife and I as relates to our son L. Based upon all information I have received to date I intend to facilitate reunification of the relationships damaged by what appear to be untrue allegations. As to this incident I acknowledge it occurred but have no fear of her and I want her in our son's life.

Id.

         On December 9, 2014, Plaintiff Mendoza moved to have the August 5, 2014 no contact order (which was entered after Tara Mendoza hit Plaintiff Mendoza with her car) between Tara Mendoza and both Plaintiffs lifted before they left for North Carolina. Mendoza v. Mendoza, Clark County, Washington Superior Court case number 14-2-07709-6; in the record here at Dkt. 76-1, at 48. In his motion, Plaintiff Mendoza states, “[DSHS] dismissed their action against vs. (petitioner and respondent) as it related to our son [L.M.] Based on all information I have received to date I intend to facilitate reunification of the relationships damaged by what appear to be untrue allegations.” Dkt. 76-1, at 48.

         On December 10, 2014 at 9:53 a.m., Colin Hayes, the Clark County deputy prosecutor who was handling Tara Mendoza's criminal prosecution, emailed Defendants Kipp and Hernandez (she was not working), and several other social workers, DSHS employees, and the assistant attorney general, Sarra Yamin, who was assigned to the first dependency case. Dkt. 61-3, at 2. He sent them a copy of Plaintiff Mendoza's December 8, 2014 motion to have the protective order between he and Tara Mendoza dismissed. Id. Mr. Hayes notes that “apparently [Plaintiff Mendoza] wants Tara [Mendoza] to see L.[M.] again.” Id.

         At 1:29 p.m., Mr. Hayes again emailed Defendant Kipp and the others, and informed them that “Cheri Hoffman [a volunteer victim's advocate] just spoke with [Plaintiff Mendoza] in an effort to have him sign a HIPPA release . . . [Plaintiff Mendoza] told Cheri that he is in North Carolina.” Dkt. 61-4, at 2. (That Plaintiffs were in North Carolina was not anticipated by the Defendants; they were under the impression he was in California based on what Plaintiff Mendoza told the assistant attorney general Yamin and others at DSHS in order to get the first dependency dismissed. Dkts. 61-4, at 2 and 28, at 4. Plaintiff Mendoza states that it wasn't until December that he decided to go to North Carolina. Dkt. 69-1, at 45.) Defendant Kipp relates in her police report that she talked with Ms. Hoffman. Dkts. 28, at 4 and 69-1, at 18-19. According to Defendant Kipp, Ms. Hoffman told her that she talked with [Plaintiff Mendoza] and he very clearly stated that he was in North Carolina, and gave her an address to mail documents. Id. (Plaintiff Mendoza disputes this and asserts he told her he was on his way to North Carolina, not that he was already there. Dkt. 84, at 9, refiled as redacted at Dkt. 90).

         In any event, at 1:55 p.m. Beth Kutzera with DSHS emailed Defendant Kipp and asked if she had Tara Mendoza's release address and Defendant Kipp responded at 2:02 p.m. that she would try to find it. Dkt. 61-5, at 2. (Although at 2:25 p.m. Mr. Hayes sent Defendant Kipp and others an email that giving an address he “believed” was Tara Mendoza's and included a possible phone number, Defendant Kipp states that she doesn't remember seeing this email. Dkts. 61-6, at 2 and 61, at 3.)

         Defendant Kipp states that at this point she became “very concerned” that Plaintiff Mendoza “was planning to expose L.M. to Tara Mendoza.” Dkt. 61, at 3.

         By 3:00 p.m., Tara Mendoza's whereabouts had still not been confirmed, Defendant Kipp states that she “believed that L.M. was in imminent danger.” Dkt. 61, at 3. She requested that the Vancouver Police Department “ping” Plaintiff Mendoza's cell phone, and discovered that he was in Vancouver, not North Carolina. Dkts. 61, at 3 and 64, at 2-3.

         Vancouver police officers went to the last known location of Plaintiff Mendoza's cell phone and found Plaintiff Mendoza's car. Dkt. 64, at 3. Clark County Deputy Sheriff Brendan McCarthy began drafting an affidavit for a warrant to take L.M. back into protective custody. Dkt. 62, at 2-4. While he was drafting the warrant, the officers at the scene saw Plaintiff Mendoza get into his car and drive off. Dkt. 64, at 3. They followed, but were rear-ended by a truck and had to stop. Id. Deputy McCarthy quit drafting the proposed warrant to take L.M. back into protective custody and attempted to join the others following Plaintiffs, but did not find them. Dkt. 62, at 2-4. Defendant Kipp, who was on the scene, followed Plaintiffs. Dkt. 28, at 5.

         It turns out that Plaintiff Mendoza's soon to be new wife, Yesenia, who was in Newburg, Oregon (just over the Washington/Oregon border) contacted Plaintiff Mendoza and asked him to take her to the hospital. Dkt. 69-1, at 52-53. (He and Yesenia started dating in September of 2014. Id.) He put L.M. in the car seat, and drove over the Washington state border into Oregon. Id.

         Defendant Kipp followed Plaintiffs from their home over the Oregon border. Dkts. 28, at 5 and 69-1, at 19. She believed she had the authority to follow Plaintiffs pursuant to the Master Interlocal Mutual Law Enforcement Assistance Agreement (“Interlocal Agreement”) between the State of Washington and State of Oregon. Dkt. 77, at 20. It was around 6:00 p.m. and traffic was heavy. Dkts. 28, at 5 and 69-1, at 19. Defendant Kipp inadvertently pulled up along Plaintiffs' car and saw Plaintiff Mendoza driving and L.M. in the backseat in a child car seat. Id. She slowed down and got three cars behind them. Id. As they drove, she notified the Portland Police Bureau and kept “calling out” their location to Portland police as they approached the Tigard, Highway 99 Exit. Id. Eventually, the Portland police caught up to them, and pulled Plaintiff over at Defendant Kipp's request. Id.; and Dkt. 69-1, at 32.

         Defendant Kipp approached and questioned Plaintiff Mendoza about his motion to have the no contact order lifted. Dkts. 28, at 5 and 69-1, at 19. She states that Plaintiff Mendoza initially denied having filed the motion, and then admitted it. Id. Defendant Kipp asked if Plaintiff Mendoza if he know where Tara Mendoza was and whether he was attempting to take L.M. to see Tara Mendoza. Id. He said “no” to both questions. Id. He told her that he decided not to go forward with the motion to dismiss the no contact order. Id. Defendant Kipp asked him why he told DSHS that he would be in California and then told Ms. Hoffman ...


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