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 SETH McMULLEN'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 Seth McMullen, by and through his attorney of record, will move for summary judgment or, in the alternative, for summary adjudication of the below-enumerated issues. Special Agent McMullen will request that this Court issue an order granting summary judgment in favor of Special Agent McMullen and against plaintiffs with respect to all the claims brought 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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The motion will be made on the ground that there are no disputed issues of material fact and on the ground that Special Agent McMullen is entitled to qualified immunity and to judgment as a matter of law. In the alternative, Special Agent McMullen is entitled to an order granting partial summary judgment or adjudicating as many of the following issues as the Court deems proper: (1) that Special Agent McMullen 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) McMullen is entitled to rely on the probable cause determinations of Sonoma County Assistant District Attorney Jamar and Superior Court Judge Robert Boyd; (2) that no constitutional violation occurred when several officers entered the residence with drawn guns and loud commands because the evidence demonstrates such an entrance was reasonable under the circumstances; (3) that Special Agent McMullen is not liable to Plaintiffs pursuant to excessive force theory because (a) lying to Plaintiff's during questioning does not violate Plaintiff's constitutional rights, (b) there is insufficient evidence to support Plaintiffs' claims that McMullen physically mistreated Plaintiffs and (c) the undisputed evidence is that McMullen is not responsible for the procedures employed by the Sonoma County detention facility; and (4) that both Federal Defendants (Special Agent McMullen and Task Force Officer John Silva) are entitled to judgment on Plaintiffs' 1983 claims because each was performing their duties as federal officers and the facts offered by Plaintiffs as evidence of substantial state participation in the alleged constitutional violations is legally insufficient. 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
Motion For Summary Judgment Or, In The Alternative, For Summary Adjudication C 07-4894 SBA

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Case 4:07-cv-04894-SBA

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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 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 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ ABRAHAM A. SIMMONS Assistant United States Attorney

Motion For Summary Judgment Or, In The Alternative, For Summary Adjudication C 07-4894 SBA

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