Free Notice (Other) - District Court of California - California

Case 4:07-cv-04894-SBA

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Filed 06/18/2008

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JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division ABRAHAM A. SIMMONS (SBN 146400) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: (415) 436-7264 Facsimile: (415) 436-6748 Email: [email protected] Attorneys for Federal Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 12 13 Plaintiffs, 14 v. 15 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 1 SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4894 SBA DEFENDANT JOHN SILVA'S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES Fed.R.Civ.P. 56 Date: Time: Place: Before: July 29, 2008 1:00 p.m. Courtroom 3, 3rd Floor Hon. Saundra B. Armstrong

NOTICE OF MOTION PLEASE TAKE NOTICE THAT on July 29, 2008 at 9:00 a.m., before Hon. Saundra B. Armstrong, 1301 Clay Street, Oakland, California, Federal Defendant John Silva, by and through his attorney of record, will move for summary judgment or, in the alternative, for summary adjudication. Task Force Officer Silva will request that this Court issue an order granting summary judgment in his favor and against plaintiffs with respect to all the claims brought him in plaintiffs' First Amended Complaint For Violations Of Civil Rights Under 42 U.S.C. § 1983 and Bivens Claim Under Fourth and Fifth Amendments Of The U.S. Constitution.

Case 4:07-cv-04894-SBA

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This motion is made on the ground that there are no disputed issues of material fact and on the additional basis that his is entitled to qualified immunity and to judgment as a matter of law. In the alternative, Task Force Officer Silva will request an order granting partial summary judgment or adjudicating as many of the following issues as the Court deems proper: (1) that John Silva has no liability for Plaintiffs' investigation-related claims because he made no decisions regarding when and how to pursue the warrants; (2) that John Silva has no liability for Plaintiffs' investigation-related claims because (a) the undisputed evidence is that McMullen did not violate Plaintiffs' constitutional rights by submitting the affidavit in support of the arrest and search warrants; and (b) he is entitled to rely on the probable cause determinations of Sonoma County Assistant District Attorney Jamar and Superior Court Judge Robert Boyd; and (3) that Task Force Officer John Silva is not liable for Plaintiffs' excessive force violations because he did not participate in the alleged wrongdoing; (4) (5) that no constitutional violation occurred when he questioned Plaintiffs; and that Task Force Officer Silva is entitled to judgment on Plaintiffs' 1983 claims because obtaining warrants in state court rather than federal court and notifying local authorities of a federal operation so that they can observe does not constitute substantial state participation in the alleged constitutional violations. The motion will be based on this Notice; a memorandum of points and authorities filed in support of the motion; the pleadings, motions and papers on file in this matter; the declarations of Seth McMullen (including the declaration filed January 14, 2008 and a supplemental declaration); the declarations of John Silva (including the declaration March 14, 2008 and a supplemental declaration); the declarations of John Murphy, Robert W. Scott, II, Bridget Coughlin, Robert Armstrong and Abraham A. Simmons, and on such oral argument and additional evidence as the Court may permit. This notice is filed for the convenience of the Court and the parties. The parties continue

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to negotiate the possibility of filing a joint statement of undisputed facts in accordance with this Court's standing order. The supporting documents will be filed with a minimum of 35 days notice in accordance with the local rules and this Court's standing orders.

Respectfully submitted, JOSEPH R. RUSSONIELLO United States Attorney

Dated: June 18, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ ABRAHAM A. SIMMONS Assistant United States Attorney

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