United States District Court, W.D. Washington, Tacoma
CARLOS MENDOZA, individual, and as guardian of L.M., his minor child, Plaintiffs,
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
J. BRYAN, United States District Judge
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
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
RELEVANT FACTS AND PROCEDURAL HISTORY
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.
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.
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.
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
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
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.
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.
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.
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,
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.
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
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
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.
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.
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.)
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.
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.
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.
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.
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.
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 ...