Opinion
No. C-01-3102 EDL
June 18, 2002
JUDGMENT
This action came before the Court for hearing, Magistrate Judge Elizabeth D. Laporte presiding, and the issues have been considered and a decision having been fully rendered.
IT IS ORDERED AND ADJUDGED that in accordance with the Court's order of June 19, 2002, Defendants' Motion for Summary Judgment (docket # 19) is GRANTED on Plaintiff's federal claims. The remaining state law claims are REMANDED to the Superior Court for the County of Alameda.
In this civil rights action, plaintiff C. Keith Hembree ("Hembree") sues the San Francisco Bay Area Rapid Transit District ("BART") and Officer Miller ID No. S-23 ("Miller"). Defendants now move for summary judgment. For the reasons set forth below, defendants' motion is granted with respect to the federal claims. The Court declines to exercise supplemental jurisdiction over the remaining state law claims, and remands them to the Superior Court for the County of Alameda.
I. Background
This case arises out of a traffic stop of Hembree by BART police officers on May 2, 2000. The only evidence submitted by either party consists of a declaration by BART Police Department Sergeant Barry Williams and excerpts from Hembree's deposition.
Although defendants argue that it is inadmissible hearsay for Hembree to rely on excerpts from his own deposition, Rules 56(c) and (e) of the Federal Rules of Civil Procedure expressly provide for the use of depositions to support or oppose a motion for summary judgment. Evidence need not be submitted "in a form that would be admissible at trial in order to avoid summary judgment." Celotex Corp. v. Catrett, 477 U.S. 317; 324 (1986). Moreover, all of those deposition excerpts were in fact submitted by the defendants and thus may be considered by the Court as admissions of a party opponent. Fed.R. Ev. 801(d)(2).
On May 2, 2000, at approximately 10:00 in the morning, Hembree was driving on Interstate 580 on his way to work in Oakland from his home in Hayward. (Ruth Decl., Ex. A, Hembree Dep. 19:5-17.) Hembree was driving a black 1999 Toyota Land Cruiser SUV. (Id. 21:1-6.)
At approximately the same time, BART Police Department Sergeants Donald Miller and Barry Williams were driving in a marked BART police car on westbound Interstate 580 in Alameda County, California. (Williams Decl. ¶ 3.) Miller was in uniform, and Williams was in plainclothes. (Williams Decl. ¶ 3.)
Hembree came up behind a marked BART police bar in the No. 1 lane, which is the left or "fast" lane. (Hembree Dep. 21:13-15.) He was driving approximately 70 miles per hour. (Id. at 25:20-26:1.) The speed limit was 65 miles per hour. (Id. 20:14-15.) The BART police car flashed its back lights at Hembree. (Id. 26:20-21.) Hembree flashed his headlights at the BART police car, because he believed that it was blocking the No. 1 lane. (Id. 26:22-26.) Hembree wanted the police car to move over so that he could pass it. (Id. 27:3-4.) Instead, the police car slowed down to between 60 and 65 miles per hour. (Id. 27:5-9.)
Hembree followed behind the car for a mile or so, then passed it. (Id. 27:10-11.) Two other cars passed the police car before Hembree did. (Id. 27:16-23.) The BART police car followed Hembree with its flashing red lights on for the next eight miles or so. (Id. at 28:20-29:3, 30:23-31:5.) The BART police car did not flash its headlights or activate its siren. (Id. 30:19-22.) Hembree continued to drive 65-70 miles per hour. (Id. 31:8-13.)
Hembree understood that the BART police officers were signalling him to pull over, but he did not pull over because he believed the BART police had no jurisdiction. (Id. 29:4-5, 30:10-18.) Hembree had seen BART police before and believed that they had law enforcement jurisdiction on BART property. (Id. 21:19-22:22.) Hembree believed that he had no duty to comply with a police officer's instructions or orders if the police officer was not within his jurisdiction. (Id. 25:1-13.) He would have pulled over if the officers had been in a California Highway Patrol car. (Id. 29:10-14.)
Hembree exited the freeway at the MacArthur Blvd. exit. (Id. 32:2-3.) Miller and Williams followed Hembree when he exited at MacArthur Blvd. and continued to follow him until he stopped at a stop light. (Williams Decl. ¶ 4.) When the vehicle stopped, Williams approached the vehicle from the passenger side and identified himself to the driver as a police officer. (Williams Decl. ¶ 5.) Williams asked the driver to step out of the vehicle. (Williams Decl. ¶ 5.) Hembree concedes that the plain clothes officer walked up to the passenger side, exposed his gun, pulled his badge out and told Hembree to pull over. (Hembree Dep. 32:10-16.) Hembree had no doubt that Williams was a BART police officer. (Id. 33:3-6.)
Hembree pulled over and got out of his truck. (Id. 33:24-34:2; Williams Decl. ¶ 6.) Hembree demanded to know what authority Williams had to ask for his driver's license and registration and to conduct the stop. (Hembree Dep. 35:2-4; Williams Decl. ¶ 6.) Williams told Hembree that he was a police officer, and that Hembree had violated the speed limit and failed to yield to a police officer. (Williams Decl. ¶ 6.) Williams asked Hembree for his license and registration. (Hembree Dep. 35:6-8; Williams Decl. ¶ 6.) Hembree pointed out to Williams that his police car said "BART" on the door, and that limited his jurisdiction. (Hembree Dep. 35:10-11.)
Williams attests that when Hembree did not comply, Williams placed him in handcuffs and escorted him to the BART police car. (Williams Decl. ¶ 6.) A few minutes later, Williams escorted Hembree to a caged vehicle, while he and Miller conducted an investigation into Hembree's license and registration. (Williams Del. ¶ 6.) As soon as Hembree was in the car, Williams and Miller ran license and warrant checks on Hembree. (Williams Decl. ¶ 7.) When they were completed, Miller asked Hembree to sign two tickets for California Vehicle Code violations. (Williams Decl. ¶ 7.) The specific code sections for which Hembree was cited are not in evidence.
Hembree's version is more detailed, but essentially consistent with Williams' version. To the minor extent that the two versions vary, the Court accepts Hembree's version for purposes of this motion, as it must Hembree testified at deposition that Williams told him that he only had to ask him once for his identification and registration, and put him under arrest (Hembree Dep. 35:14-17.) Hembree was searched, his wallet was removed and gone through, and then he was handcuffed and put in the back of a car. (Id. 35:18-24.) Hembree believes that Miller searched him and put him in the car, but acknowledged that "it's kind of hard to tell when your back is to them." (Id. 35:22-36:20.)
Hembree admits that he was not injured by the search, or by being placed into handcuffs, although he did suffer some discomfort. (Id. 36:15-37:6.) He was not verbally or physically abused in any fashion. (Id. 38:8-11.)
Before Hembree was handcuffed, two to four other BART police cars arrived. (Id. 37:18-20.) As he was being handcuffed, Hembree told the BART police officers that they were making a big mistake. (Id. 39:1-2.) After about 20 minutes, Hembree was transferred to the back seat of another BART police car. (Id. 39:23-40:4.) He was not physically or verbally abused during the transfer to the second car. (Id. 40:25-41:7.)
Miller told Hembree "You can sign these two tickets and we'll let you go. Otherwise, you go to the station." (Id. 41:18-22.) Hembree agreed to sign the tickets. (Id. 42:2-3.) After he signed the tickets, he was taken out of the car, the handcuffs were removed, his wallet was returned to him, and he got in his truck and drove away. (Id. 42:6-7.)
Williams attests that they first observed Hembree violating the speed limit at 10:12 a.m. (Williams Decl. ¶ 9.) They released him at 10:33. (Williams Decl. ¶ 9.) Thus, according to Williams, the total time of the incident was 21 minutes. (Williams Decl. ¶ 9.) Hembree contends that he sat in the first car for about 20 minutes, and was also in the second car for about 20 minutes. (Hembree Dep. ¶ 38:16-17; 41:8-10.)
Hembree asserts causes of action against BART and Miller for false imprisonment; unlawful restriction of liberty in violation of the 4th and 5th amendments to the United States Constitution and Article 1, Section 1 of the California Constitution (brought under 42 U.S.C. § 1983 and Cal. Civ. Code § 52.1(b)); violation of the right of privacy; battery; intentional infliction of emotional distress; and negligent infliction of emotional distress.
II. Discussion
A. Authority of BART police
As the core facts are undisputed, the key legal issue is the scope of authority of the BART police. California Penal Code § 830.33 provides, in relevant part:
The following persons are peace officers whose authority extends to any place in the state for the purpose of performing their primary duty or when making an arrest pursuant to Section 836 as to any public offense with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of that offense . . . .
(a) A member of the San Francisco Bay Area Rapid Transit District Police Department appointed pursuant to Section 28767.5 of the Public Utilities Code, if the primary duty of the peace officer is the enforcement of the law in or about properties owned, operated, or administered by the district or when performing necessary duties with respect to patrons, employees, and properties of the district.
Cal. Pen. Code § 830.33. There is no published authority construing this code section, but the plain meaning of the statute could be paraphrased as follows:
Any BART police officer:
(1) whose primary duty is enforcement of the law in or about BART properties, or
(2) who is performing necessary duties with respect to BART patrons, employees, and properties, is a peace officer whose authority extends to any place in the state:
(1) for the purpose of performing their primary duty or
(2) when making an arrest pursuant to section 836 as to any public offense with respect to which there is immediate danger to person or property, or the escape of the perpetrator of that offense.
It is undisputed that Miller and Williams are BART police officers. The Court will assume for purposes of this motion that their primary duties are enforcing the law in or about BART properties, since both plaintiff and defendants make such an assumption, although there is no evidence before the Court of their primary duties. There is no contention that Hembree's arrest had any connection with any BART property; thus, there can be no contention that Miller and Williams were engaging in their primary duties when they arrested Hembree.
Under § 830.33, Miller and Williams had authority to act as peace officers outside of BART properties only when performing their primary duties or when making an arrest pursuant to § 836 as to any public offense with respect to which there is immediate danger to person or property, or the escape of the perpetrator of that offense. As Miller and Williams were not performing their primary duties, the question then is whether § 836 authorizes arrests for speeding, and whether speeding is a public offense with respect to which there, is immediate danger to person or property. California law on this point is unclear.
Section 836 authorizes a peace officer to make an arrest without a warrant when the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence. Cal. Pen. § 836. "Public offense" includes misdemeanors and traffic infractions. People v. Tuck, 75 Cal.App.3d 639, 644, 142 Cal.Rptr. 362, 365 (1977) (citing People v. Tennessee, 4 Cal.App.3d 788, 791, 84 Cal.Rptr. 697 (1970)). Thus, § 836 authorizes arrests for speeding violations. Id.
Section 830.33 authorizes BART police make arrests outside BART property, however, only for public offenses that are pose an immediate danger to persons or property. Cal. Pen. Code § 830.33. It is not at all clear that speeding at the same speed as the flow of traffic constitutes an immediate danger to persons or property. On the one hand, one court found "an immediate danger to persons or property" where police observed a vehicle "weaving in sweeping curves from the center lane to the curb," People v. Tennessee, 4 Cal.App.3d 788, 791-92, 84 Cal.Rptr. 697, 699 (1970), and another court has found immediate danger to person or property where police observed a vehicle driving erratically, making several lane changes which caused drivers of other vehicles to make sudden stops to avoid collision. Lofthouse v. Brown, 124 Cal.App.3d 730, 733, 735, 177 Cal.Rptr. 601, 603, 604 (1981). On the other hand, a court found no immediate danger to persons or property when police observed a vehicle making a wide right turn where all four wheels of the vehicle went over the double yellow lines into the oncoming lane. People v. Hamilton 191 Cal.App.3d Supp. 13, 16, 19, 236 Cal.Rptr. 894, 896, 898 (1986).
Here, there is no evidence that Hembree was driving erratically. Rather, the evidence is that Hembree was driving approximately 5 to 10 miles per hour above the speed limit in flowing traffic that was moving at approximately the same speed. Reasonable persons could argue that this conduct does not create an immediate danger to persons or property. On the other hand, reasonable persons could also argue that driving above the speed limit is always dangerous. It is not clear whether the law authorized BART police to arrest Hembree under these circumstances. For the reasons set forth below, however, the Court need not decide this issue of California law. In order to grant defendant's motion for summary judgment on the federal claims, it is enough that the law was unclear.
The Court is not persuaded by the reasoning in People v. Hamilton that nearly identical language in another statute authorized limited-authority officers to arrest an escaping perpetrator, even if the crime committed did not create an immediate danger to persons or property. Hamilton, 191 Cal.App.3d Supp. at 19, 236 Cal.Rptr. at 898. BART police officers are peace officers "when making an arrest pursuant to Section 836 as to any public offense with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of that offense . . ." Cal. Pen. Code § 830.33 (emphasis added). The use of the term "that offense," as opposed, for example, to "an" or "any" offense, refers back to the immediately prior limitation of "offense" to a public offense with respect to which there is immediate danger to person or property.
B. Citizen's arrest
Defendants contend that even if they were acting outside the scope of their authority as BART police officers, they properly effected a citizen's arrest of Hembree. Even if a peace officer is acting outside the geographic scope of his authority, he still is entitled to conduct a citizen's arrest. See, e.g. People v. Monson, 28 Cal.App.3d 935, 939-40, 105 Cal.Rptr. 92, 95 (1972) (citing People v. Aldapa, 17 Cal.App.3d 184, 188, 94 Cal.Rptr. 579 (1971)) (holding that peace officers' "power to arrest when acting beyond the limits of the geographic area of their authority is the same as that conferred upon a private citizen."); People v. Bush, 37 Cal.App.3d 952, 955, 112 Cal.Rptr. 770, 772 (1974).
California Penal Code § 837 authorizes any private person to arrest another for a public offense committed or attempted in his presence. As already discussed above, "public offense" includes traffic infractions. People v. Tuck. 75 Cal.App.3d 639, 644, 142 Cal.Rptr. 362, 365 (1977) (citing People v. Tennessee. 4 Cal.App.3d 788, 791, 84 Cal.Rptr. 697 (1970)). Thus, it appears that § 837 authorizes citizen's arrests for speeding violations committed in the citizen's presence, although no published case so holds.
Hembree argues that the authority of a private citizen to arrest another person is more limited than the authority of police officers. It is true that a peace officer may effect an arrest for a non-felony public offense when he or she has probable cause to believe that the offense was committed, while a private citizen may arrest another for a non-felony public offense only when it is committed or attempted in the private citizen's presence. Cervantes v. J.C. Penney Co., Inc., 24 Cal.3d 579, 587 (1979). It is undisputed, however, that Hembree was speeding in the presence of Miller and Williams. (Hembree Dep. 20:14-15, 31:8-13.) Thus, § 837 authorized Miller and Williams to effect a citizen's arrest of Hembree.
Defendants contend that if the initial arrest was lawful, Hembree can have no claim against them. California Penal Code § 847, however, requires that "[a] private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer." Miller and Williams did not attempt to deliver Hembree into the custody of a peace officer who had jurisdiction. It is undisputed that the only other peace officers present during Hembree's detention were also BART police. (Hembree Dep. 37:18-20.) Thus, although Miller and Williams' initial stop of Hembree may have been within the scope of a lawful citizen's arrest, they did not complete the citizen's arrest because they made no attempt to deliver Hembree into the, custody of a peace officer with jurisdiction over the alleged speeding infraction. Thus, it does not appear that defendants made a lawful citizen's arrest. As neither side has briefed the issues beyond this point, however (defendants having assumed the lawfulness of the arrest and subsequent detention), and as it is not necessary to do so in order to resolve the federal claims, the Court will not do so in the first instance.
C. Qualified Immunity
Miller argues that he has qualified immunity against Hembree's § 1983 claims, and thus is entitled to summary judgment on those claims. The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The test for qualified immunity is a two-part inquiry. First, taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries about qualified immunity. Id. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next step is to ask whether the right was clearly established. Id. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation that he confronted. Id.
Although the § 1983 claim alleged in the complaint mentions both the Fourth and Fifth Amendments to the United States Constitution, Hembree's opposition brief discusses only the Fourth Amendment. Indeed, Hembree states that the ultimate issue for the trier of fact is the reasonableness of the stop and detention in light of the law surrounding Fourth Amendment rights. As it appears that Hembree has abandoned any claim he may have under the Fifth Amendment, the Court will assume that his § 1983 claim is based only on the Fourth Amendment.
The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16 (1968). The central inquiry under the Fourth Amendment is "the reasonableness in all the circumstances of the particular govermnental invasion of a citizen's personal security." Id. at 19; see also Ohio v. Robinette, 519 U.S. 33, 39 (1996) (holding that reasonableness is measured in objective terms by examining the totality of the circumstances). In determining whether a particular search and seizure is reasonable, the Court must determine whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified it in the first place. Terry, 392 U.S. at 19-20.
Miller and Williams did not violate the Fourth Amendment by pulling Hembree over for speeding. It goes without saying that it is objectively reasonable for a peace officer to arrest someone who is violating the law in his presence. Even a private citizen is authorized under the law to arrest another citizen for a traffic infraction. Thus, to the extent Hembree is claiming that defendants violated the Fourth Amendment simply by stopping him for speeding, summary judgment is granted for Miller, the only individual defendant, on that claim.
Whether Miller and Williams violated the Fourth Amendment after stopping him for speeding is another matter. Viewing the facts in the light most favorable to Hembree, they stopped him in a location where they may have had no authority as peace officers, failed to turn him over to the proper authorities as they are required to do under law when effecting a citizen's arrest, handcuffed him, searched his wallet, detained him for a total of forty minutes in two different police cars, ran license and warrants checks, and then ticketed him. At least one court has found a Fourth Amendment violation when a peace officer with the proper authority detained a motorist for 40 minutes for a minor traffic infraction (a burned out lightbulb in one taillight) in order to run a records check. Willett v. Superior Court, San Diego County, 2 Cal.App.3d 555, 569, 83 Cal.Rptr. 22, 24-25 (1969). The court found it to be "an impermissible intrusion on his security to have detained him for 40 minutes to make a records check, absent any suspicious circumstances other than his equipment failure alone." Id. at 569, 83 Cal.Rptr. at 24. Based on Willett, a jury could reasonably find the conduct of Miller and Williams to be a violation of the Fourth Amendment here, as well.
Willett, however, is almost certainly no longer good law after Atwater v. City of Lago Vista, 532 U.S. 318 (2001). In Atwater, the Supreme Court found that police did not violate the Fourth Amendment when they arrested, handcuffed, and jailed a woman for one hour for such relatively minor transgressions as failing to use a seatbelt for herself or her children, and failing to carry her driver's license and insurance documentation with her while driving. Id. at 323-24, 354-55. Although the offenses were misdemeanors punishable only by a fine, the Supreme Court found, after an extensive review of the history of the Fourth Amendment and English common law, that jailing the offender did not violate the Fourth Amendment. Id. The Court rejected the plaintiffs argument that the Fourth Amendment forbid "custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no need for immediate detention," even while acknowledging that, on the facts presented, "the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment." Id. at 346-47. The Court concluded that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Id. at 354. If the "gratuitous humiliation" of being temporarily jailed for a traffic misdemeanor that is punishable only by a fine does not violate the Fourth Amendment, surely being detained in a police car for 40 minutes for speeding does not violate the Fourth Amendment, either.
Even if Willett retains some validity in the face of Atwater, the next question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. at 201. The Court finds that it would not necessarily be clear to a reasonable BART police officer that it was unlawful for him to arrest a motorist, away from BART property, for speeding. As the court has discussed above, the law is not clearly established as to whether garden-variety speeding constitutes a public offense that presents an immediate danger to persons or property. Compare People v. Tennessee, 4 Cal.App.3d 788, 791-92, 84 Cal.Rptr. 697, 699 (1970) and Lofthouse v. Brown, 124 Cal.App.3d 730, 733, 735, 177 Cal.Rptr. 601, 603, 604 (1981) with People v. Hamilton, 191 Cal.App.3d Supp. 13, 16, 19, 236 Cal.Rptr. 894, 896, 898 (1986). In the absence of any authority to the contrary, a BART police officer could reasonably consider speeding to be a dangerous activity, and thus reasonably believe that it was within his authority to arrest a motorist for speeding on I-580.
By the same token, although the Willett case found a 40-minute detention for a minor traffic infraction to be a violation of the Fourth Amendment, the Court cannot say that a reasonable BART police officer would necessarily be aware of that single case. Even before Atwater, the California Supreme Court had found constitutional brief detentions during traffic stops to conduct warrant checks. People v. McGaughran, 25 Cal.3d 577, 584, 159 Cal.Rptr. 191 (1979).
Moreover, it is undisputed that at the time Hembree was stopped, he was in the process of fleeing from the BART police officers, had refused to pull over even though he knew by seeing the flashing lights on the officers' car that they were trying to stop him, and was challenging the officers' authority. A reasonable officer could find this behavior suspicious and worthy of a more detailed investigation than would normally accompany a citation for speeding, particularly since that behavior may have been separately chargeable as a misdemeanor under § 2800(a) of the California Vehicle Code. Hembree complains about the fact and length of his detention, but does not complain that the officers abused him in any way. As a reasonable BART police officer could have believed the arrest and detention was lawful, the law is not clearly established that a 40-minute detention for speeding violates the Constitution, and there is no evidence that the BART police officers abused Hembree in any way during his detention, the Court finds that Officer Miller, the only individual defendant in this case, is entitled to qualified immunity on Hembree's § 1983 claim.
D. Monell
BART argues that it is entitled to summary judgment on Hembree's § 1983 claims because Hembree has no evidence that BART had a policy or custom that caused injury to him. BART relies on Monell v. Department of Social Services, 436 U.S. 658 (1977). In Monell, the Supreme Court held that local government entities:
may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. at 694.
Hembree presents no evidence that any BART policy or custom caused him any injury, and conceded at oral argument that he had no such evidence. Accordingly, summary judgment is granted for BART on Hembree's § 1983 claim against BART.
E. Remand
As the Court has granted summary judgment on Hembree's two federal causes of action, only state law claims remain. Hembree's federal claims provided the only basis for federal court jurisdiction. Where the district's court jurisdiction is based on a federal question, the district court may decline to exercise supplemental jurisdiction over state law claims if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon University v. Cohill. 484 U.S. 343, 350 n. 7 (1988).
The Court has the discretion to dismiss or remand the claims over which it declines to assume supplemental jurisdiction. Carnegie-Mellon. 484 U.S. at 352. "Any time a district court dismisses, rather than remands, a removed case involving pendent claims, the parties will have to refile their papers in state court, at some expense of time and money." Id. at 353. Accordingly, the Court should generally remand rather than dismiss claims over which the Court declines to assume supplemental jurisdiction.
Here, there is no reason to retain supplemental jurisdiction over Hembree's remaining state law claims. The Court declines to retain supplemental jurisdiction over those claims and remands the remainder of the action back to the Superior Court for the County of Alameda.
F. Rule 11
In defendants' reply brief, they ask the Court to issue an order to show cause why Hembree should not be sanctioned under Rule 11(c)(1)(B) of the Federal Rules of Civil Procedure. Defendants contend that Hembree made several factual assertions that are unsupported by the evidence.
Rule 11(c)(1)(B) provides: "On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto." Rule 11(b)(3) provides that by presenting a motion to the court, an attorney is certifying that to the best of the person's knowledge, formed after a reasonable inquiry, "the allegations and other factual contentions have evidentiary support . . . ."
Defendants complain about statements in Hembree's opposition brief about (1) Hembree's initial encounter with one of the BART police officers; (2) whether the BART police officers were off duty at the time they stopped Hembree; and (3) why the BART police officers did not appear at Hembree's hearing. With respect to the first issue, defendants never identify the statement in Hembree's brief that they believe is erroneous. As for the second and third issues, they present no evidence to contradict Hembree's statements. Accordingly, defendants have not demonstrated any reason why the Court should issue an order to show cause.
III. CONCLUSION
For the reasons set forth above,
1. Miller's motion for summary judgment on Hembree's claim under 42 U.S.C. § 1983 is GRANTED, on the grounds of qualified immunity.
2. BART's motion for summary judgment on Hembree's claim under 42 U.S.C. § 1983 is GRANTED, as Hembree has presented no evidence that he suffered any injury as a result of a BART policy or custom.
3. The Court declines to retain supplemental jurisdiction over the remainder of Hembree's state law claims, and remands the remainder of the action to the Superior Court for the County of Alameda. The clerk of the court shall remand the action forthwith.
4. Defendants' request for an order to show cause re: Rule 11 sanctions is DENIED.