THOMAS E. MONTGOMERY, County Counsel (State Bar...

09-cv-2093-WQH(BGS)

THOMAS E. MONTGOMERY, County Counsel (State Bar No. 109654) County of San Diego By MORRIS G. HILL, Senior Deputy (State Bar No. 97621) 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 Telephone: (619) 531-4877; Fax: (619) 531-6005 E-mail: [email protected] Attorneys for Defendants Bonnie Dumanis, Laura Gunn (apparently also sued as “District Attorney’s Office”), and Glenn N. Wagner (apparently also sued as “Medical Examiner’s Office”)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA CYNTHIA SOMMER, Plaintiff, v. UNITED STATES OF AMERICA; ROB TERWILLIGER; RICK RENDON; MARK RIDLEY; S.D. ADAMS; JOSE CENTENO; COUNTY OF SAN DIEGO MEDICAL EXAMINER’S OFFICE; GLENN N. WAGNER; COUNTY OF SAN DIEGO DISTRICT ATTORNEY’S OFFICE; BONNIE DUMANIS; LAURA GUNN; and DOES 1 through 100, inclusive, Defendants.

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No. 09-cv-2093-WQH(BGS) [Fed.R.Civ.P., 56] Date: January 17, 2012 Time: 11:00 a.m. Dept.: 4 - Courtroom of the Honorable William Q. Hayes Trial Date: None [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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Case 3:09-cv-02093-WQH -BGS Document 112-1 Filed 12/16/11 Page 1 of 31

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TOPICAL INDEX

Page TABLE OF AUTHORITIES ................................................................................ -iii- I INTRODUCTION .......................................................................................... 1 II PLAINTIFF’S ALLEGATIONS .................................................................... 1 III UNDISPUTED FACTS SUPPORTING SUMMARY JUDGMENT ........... 6 A. Events Occurring Before Arsenic Poisoning Was Suspected .................. 6 B. Initial Identification of Arsenic ................................................................. 7 C. Investigation Following Identification of Arsenic .................................... 7 D. Initial Involvement of Moving Defendants .............................................. 9 E. Preparing to File Criminal Case ................................................................ 9 F. Criminal Case and Arrest Warrant ............................................................ 9 G. Post-Trial Events ..................................................................................... 12 H. Information About Sgt. Sommer’s Final Illness ..................................... 14 I. Functions Of Moving Defendants ............................................................ 15 IV LEGAL STANDARDS ................................................................................ 15 A. Standard for Defense Summary Judgment Motion ................................ 15 B. Constitutional Rights .............................................................................. 16 1. Fourth Amendment Unlawful Imprisonment ..................................... 16 2. Fourteenth Amendment Due Process ................................................. 17


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TOPICAL INDEX (Cont’d.)

Page C. Constitutional Causation ......................................................................... 18 D. Qualified Immunity ................................................................................ 19 E. Quasi-Judicial (Prosecutorial) Immunity ................................................ 19 1. Absolute Immunity for Preparing to Initiate Judicial Proceedings .... 19 2. Absolute Immunity for Obtaining Arrest Warrant ............................. 19 3. Buckley v. Fitzsimmons Is Limited To Absolute Immunity .............. 20 V ARGUMENT ................................................................................................ 20 A. Plaintiff Cannot Show Individual Liability ............................................ 20 1. District Attorney Bonnie Dumanis ..................................................... 20 2. Deputy District Attorney Laura Gunn ................................................ 21 3. Chief Medical Examiner Glenn Wagner ............................................ 22 B. Absolute Immunity ................................................................................. 22 C. Qualified Immunity ................................................................................. 23 D. Official-Capacity Liability ...................................................................... 23 1. District Attorney Liability is Unavailable as a Matter of Law ........... 23 2. Plaintiff Cannot Show a Basis for Medical Examiner Liability ......... 23 E. Plaintiff’s Complaint Is Time-Barred ..................................................... 24 VI CONCLUSION ............................................................................................. 24


iii

TABLE OF AUTHORITIES

Page Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .......................................... 16 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ....................................................... 20 Burns v. Reed, 500 U.S. 478 (1991) ....................................................................... 22 Celotex Corp. v. Catrell, 477 U.S. 317 (1986) ....................................................... 16 City of Los Angeles v. Heller, 475 U.S. 796 (1986) .............................................. 18 Connick v. Thompson, 131 S.Ct. 1350 (2011) ....................................................... 23 County of Sacramento v. Lewis, 523 U.S. 833 (1998) ........................................... 18 Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) ....................................... 16, 18 Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) ................ 18, 22 Harrison v. County of Alameda, 720 F.Supp. 783 (N.D. Cal. 1989) ..................... 24 Illinois v. Gates, 462 U.S. 213 (1983) .................................................................... 17 Liston v. County of Riverside, 120 F.3d 965 (9th Cir. 1997) ................................. 17 Harlow v. Fitzgerald, 457 U.S. 800(1982) ............................................................. 19 Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) ..................................... 18 Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001) ................................................ 20 Pearson v. Callahan, 555 U.S. 223 (2009) .............................................................. 20 Pitts v. County of Kern, 17 Cal.4th 340 (1998) ...................................................... 23 United States v. Esparza, 546 F.2d 841 (9th Cir. 1976) ......................................... 17


iv

TABLE OF AUTHORITIES (Cont’d.)

Page United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended by 769 F.2d 1410 (9th Cir. 1985) .............................................................................. 17 United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810 (9th Cir. 1996) ....................................................................................................... 16 Van de Kamp v. Goldstein, 555 U.S. 335 (2009) ................................................... 19 Weiner v. San Diego County, 210 F.3d 1025 (9th Cir. 2000) .......................... 17, 23 WMX Technologies, Inc. v. Miller, 197 F.3d 367 (9th Cir. 1999) ........................ 17

STATUTES

California Code of Civil Procedure Section 335.1 ......................................................................................................... 24 Section 340 ............................................................................................................ 24 Federal Rules of Civil Procedure Rule 11 .................................................................................................................. 24 Rule 56(c) .............................................................................................................. 16 42 United States Code Section 1983 .......................................................................................... 1, 17, 18, 24


09-cv-2093-WQH(BGS)

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THOMAS E. MONTGOMERY, County Counsel (State Bar No. 109654) County of San Diego By MORRIS G. HILL, Senior Deputy (State Bar No. 97621) 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 Telephone: (619) 531-4877; Fax: (619) 531-6005 E-mail: [email protected] Attorneys for Defendants Bonnie Dumanis and Laura Gunn (apparently also sued as “District Attorney’s Office”) and Glenn N. Wagner (apparently also sued as “Medical Examiner’s Office”)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA CYNTHIA SOMMER, Plaintiff, v. UNITED STATES OF AMERICA; ROB TERWILLIGER; RICK RENDON; MARK RIDLEY; S.D. ADAMS; JOSE CENTENO; COUNTY OF SAN DIEGO MEDICAL EXAMINER’S OFFICE; GLENN N. WAGNER; COUNTY OF SAN DIEGO DISTRICT ATTORNEY’S OFFICE; BONNIE DUMANIS; LAURA GUNN; and DOES 1 through 100, inclusive, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 09-cv-2093-WQH(BGS) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [Fed.R.Civ.P., 56] Date: January 17, 2012 Time: 11:00 a.m. Dept.: 4 - Courtroom of the Honorable William Q. Hayes Trial Date: None [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]

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I

INTRODUCTION

Defendants Bonnie Dumanis (San Diego County District Attorney), Laura Gunn

and Dr. Glenn N. Wagner (San Diego County Medical Examiner), respectfully move for

summary judgment on plaintiff Cynthia Sommer’s complaint (Doc. 1), as narrowed by

order partly granting defendants' motion to dismiss (Doc. 36). All surviving claims

against moving defendants are alleged under 42 U.S.C. § 1983; there are no supplemental

California law causes of action. Apparently the moving defendants are being sued as the

"District Attorney's Office" and "Medical Examiner's Office" in official capacity, as well

as in their individual capacities. The County of San Diego is not a defendant in this

action. (See Doc. 58.) Plaintiff alleges unlawful arrest and imprisonment and

reputational injury. As will be shown, plaintiff’s imprisonment was lawful because it

was judicially authorized in advance, and loss of reputation is not actionable as a

constitutional deprivation. Beyond that, moving defendants are entitled to immunity, and

plaintiff’s claims are time-barred.

II

PLAINTIFF’S ALLEGATIONS

"Doc. # 1" refers to plaintiff's complaint. It alleges that in February of 2002,

plaintiff’s husband Todd Sommer, a 23-year old Sergeant in the United States Marine

Corps, "suffered a cardiac arrhythmia and died . . . it was determined he died of natural

causes. Over the next two and a half years . . . Defendants worked together to fabricate

false and corrupt evidence and cover up exculpatory evidence to arrest and later convict

Mrs. Sommer for the murder of her husband by arsenic poisoning . . . a crime that . . .

never occurred." (Doc. # 1 at ¶1.) Dr. Robinson performed a thorough autopsy and

concluded that Todd Sommer died of cardiac arrhythmia; he found no evidence of

"injuries associated with arsenic poisoning," which should have included "severe organ

damage," and concluded that the manner of death was "NATURAL." (Doc. #1 at ¶¶ 14-

18.) The autopsy report was forwarded to the San Diego Chief Medical Examiner at the


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time, Dr. Brian D. Blackbourne, who concurred that manner of death was natural, caused

by probable cardiac arrhythmia of undetermined etiology. (Doc. # 1 at ¶ 19.)

"Defendants refused to accept those results and embarked upon an investigation intended

to find criminal conduct" by Plaintiff. (Doc. #1 at ¶ 21.) NCIS special agent Ridley was

"confident" that plaintiff's "conduct and breast implants proved that she had murdered her

husband." (Doc. #1 at ¶ 22.) "Desperate for any evidence to justify their continued

investigation, Naval investigators sent liver, kidney, blood and urine samples taken by

Dr. Robinson . . . to the Environmental Division of the Armed Forces Institute of

Pathology . . . for rarely performed heavy metals testing." (Doc. #1 at ¶ 23.) "At some

point before or after AFIP Environmental took custody of the tissue samples, the samples

were negligently or intentionally contaminated, resulting in a false positive for the

presence of arsenic in some of the tissues. AFIP purportedly found extremely high levels

of arsenic in two of six tissue samples they tested . . . . Centeno believed that the two

tissues that tested positive for arsenic had likely been contaminated, possibly coming into

contact with arsenic at Naval Med, during transportation to AFIP, or while at the AFIP

lab." (Doc. #1 at ¶ 24.) All of the tissue samples, as well as blood and urine, "should

have shown high levels of arsenic" if the test results were accurate. (Doc. #1 at ¶24.)

Defendants "knew or had reason to know that AFIP Environmental did not have the

experience to properly perform heavy metal testing on human tissue samples . . . this was

the first time AFIP Environmental lab technicians had conducted these types of tests, or

tested biological tissues." Defendants "knew a competent testing facility would

conclusively prove that Todd Sommer did not die of arsenic poisoning." (Doc. 1 at ¶ 25.)

"AFIP Environmental had just purchased a new Inductively Coupled Plasma Mass

Spectrometer" and tested "their new machine for the first time on biological tissues."

"AFIP Environmental did not have a Standard Operating Procedure in place to assure that

proper methods and safeguards were being utilized to assure the integrity of the test

results, or the chain of custody." (Doc. #1 at ¶ 26.) The Defendants knew . . . [that] . . .

[t]here were over sixteen breaks in the chain of custody after AFIP Environmental


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received the tissue samples" and "[t]issues that are not properly maintained are

susceptible to contamination" that "produce false positives for arsenic." The AFIP

arsenic "results were so unusually high that such findings had never been seen in the

history of reported arsenic testing and exceeded any previously reported contamination

levels by approximately twelve-hundred fifty percent (1250%). It was scientifically

impossible to have such high levels of arsenic in only two of the tissue samples . . .

ninety-eight percent (98%) of the arsenic purportedly found in the two tissue samples had

been metabolized to dimethylate ("DMA") . . . [while] the average amount of DMA

typically present is four percent (4%). Never in the history of arsenic testing had there

been a finding that virtually all the arsenic found in tissue samples had metabolized into

DMA. This was simply impossible and clearly showed AFIP's test results were

inaccurate." (Doc. #1 at ¶ 27.) "Even at his worst, Todd did not exhibit symptoms of

arsenic poisoning." (Doc. #1 at ¶ 28.) "During their investigation prior to Mrs.

Sommer’s arrest, Defendants consulted with several qualified independent forensic

toxicologists. All of these experts refused to concur in the results of the testing

performed by AFIP due to the fact that the results were demonstrably false." (Doc. #1 at

¶ 29.) "Defendants contacted Alphonse Poklis, "a highly respected forensic pathologist

and the leading expert in arsenic poisoning at Virginia Commonwealth University," who

"told Defendants that there was no evidence that Todd Sommer died of arsenic poisoning

and that the AFIP test results were false." (Doc. #1 at ¶ 30.) Defendants Dumanis and

Gunn "knew or should have known during the investigation that preceded Mrs. Sommer's

arrest that there was no evidence on which to arrest . . . [and] the AFIP test results were

false . . . ." (Doc. #1 at ¶ 32.) "Naval investigators had spent years investigating Mrs.

Sommer and needed to justify their investigation for the sake of their careers . . .

Dumanis and Gunn had political ambitions and believed that a high-profile arrest and

conviction would serve their personal goals and make them and the D[istrict]

A[ttorney’s] O[ffice] famous." (Doc. #1 at ¶ 33.) "Dumanis, Gunn and Naval

investigators sought to change Todd Sommer’s death certificate to list his cause of death


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as homicide by arsenic so that they could make their pieces fit." (Doc. #1 at ¶ 34.)

"Coincidentally, Defendant Wagner had recently left AFIP to become the San Diego

County Chief Medical Examiner in 2003 . . . . Dumanis, Gunn and Naval investigators

convinced Wagner to adopt the corrupt, false and possibly fabricated AFIP test results . . .

to identify his cause of death as homicide by arsenic without objective cause or support."

(Doc. #1 at ¶ 35.) "In February of 2005 . . . Wagner sent an e-mail to Centeno . . . [who]

replied that he, too, was 'surprised by the high arsenic levels' and 'thought that the tissue

samples were contaminated during collection.' He went on to admit: 'I don't have a good

interpretation of these results.'" (Doc. #1 at ¶ 36.) "Defendants . . . knew there were

additional tissue samples . . . in the custody of Navy Med. Defendants failed to seek

testing of these preserved tissues . . . ." (Doc. #1 at ¶ 38.) "Wagner had his own motive

for covering up AFIP's fabricated test results. At the time the tests were conducted, he

was the director of AFIP . . . [and] was also motivated by his own prejudices and bias

against Mrs. Sommer . . . [and] cover[ed] up . . . fabricated test results, protecting his

professional image and AFIP's credentials." (Doc. #1 at ¶ 39.) Defendants "knew that

buried in a box in a closet at the Balboa Naval Hospital were additional tissue samples

that would . . . have exonerated Mrs. Sommer . . . . Defendants chose not to send the

preserved tissue samples out for testing." (Doc. #1 at ¶ 42.) "[O]n November 30, 2005,

Mrs. Sommer was arrested and charged with murdering her husband." (Doc. #1 at ¶ 47.)

"Her case was sensational and therefore newsworthy . . . . Defendants . . . maliciously

disclosed personal and private information about Mrs. Sommer further sensationalizing

the case." (Doc. #1 at ¶ 49.) "On January 30, 2007, Mrs. Sommer was wrongly

convicted of murdering her husband." (Doc. #1 at ¶ 50.) "Following the jury's verdict,

Mrs. Sommer's family hired a new attorney, Allen Bloom, who worked diligently to

reverse the conviction and filed a motion for a new trial with several discovery motions

in the spring and summer of 2007. On November 30, 2007, the court granted a new

trial." (Doc. #1 at ¶ 52.) "After a new trial was granted, Mrs. Sommer's attorney sought

information about the approximately thirty tissue samples which had been originally


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listed in the autopsy report. Defendant Gunn informed Mr. Bloom that the tissues no

longer existed. Upon making a second inquiry on Gunn regarding these samples, Mr.

Bloom was informed a second time they were no longer in existence. A formal written

discovery request for information about these tissue samples resulted in Gunn and/or her

investigators visiting the Navy Med autopsy site and retrieving the 'non-existent' tissue

samples they had left buried in the closet of the Balboa Naval Hospital." (Doc. #1 at ¶

53.) "Rather than contradict their prior representations of the tissues non-existence by

disclosing their existence to Mrs. Sommer's attorney, on March 20, 2008, Defendants,

without notifying Mrs. Sommer or her attorney, sent the tissue samples to be tested at a

highly respected private testing facility in Canada. The results were staggering. None of

the tissue samples showed the presence of any arsenic whatsoever. This conclusive

evidence proved that Todd Sommer had not been poisoned at all, and that Mrs. Sommer

had been convicted of a crime that had never occurred." (Doc. #1 at ¶ 54.) On August

31, 2007, a "Special Attention" memorandum had had been attached to the box at Balboa

Naval Hospital containing "the tissue samples" but Gunn did not disclose "the tissues

existence to anyone on behalf of Plaintiff." (Doc. #1 at ¶ 55.) On April 17, 2008,

plaintiff was released from custody. (Doc. #1 at ¶ 56.) "Defendants permanently stained

Mrs. Sommer's reputation with their lies and reckless disregard for her Constitutional

rights." (Doc. #1 at ¶ 57.) "Even in the face of conclusive evidence that Mrs. Sommer is

innocent, Defendants . . . refused to dismiss the charges with prejudice, preserving their

desperate and reckless hope to charge her with murder. Incredibly, their investigation of

Mrs. Sommer continued after April 17, 2008, without any evidence of homicide. They

are incredulous in their actions . . . ." (Doc. #1 at ¶ 58.) "Even though the AFIP test

results have been proven to be corrupt, false and possibly fabricated . . . Defendants have

denied Plaintiff's demand to change Todd Sommer’s death certificate from . . . homicide

by arsenic poisoning back to . . . natural causes as a result of probable cardiac arrhythmia

of undetermined etiology." (Doc. #1 at ¶ 60.)

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III

UNDISPUTED FACTS SUPPORTING SUMMARY JUDGMENT

A. Events Occurring Before Arsenic Poisoning Was Suspected.

Sgt. Sommer reported that he experienced gastrointestinal illness symptoms that

began at about 3:00 a.m. on February 9, 2002. (Separate Statement of Uncontroverted

Facts (“SSUF”) 1.)1

A military autopsy at the Naval Medical Center San Diego (NMCSD or Balboa

Naval Hospital) on February 19, 2002 failed to identify any definitive anatomical cause

of death. (SSUF 4.) Marine forensic pathologist Dr. Stephen Robinson deferred decision

on the cause and manner of death pending toxicology and microscopy; his initial opinion

was cardiac arrhythmia, based on information from plaintiff. (SSUF 5.) On February 21,

2002 plaintiff requested that Sgt. Sommer's body be cremated. (SSUF 6.)

Sgt. Sommer sought outpatient medical care twice, on February 10

and 12, 2002. (SSUF 2.) He died in the early morning hours of February 18, 2002.

(SSUF 3.)

On March 11, 2002, NCIS agents interviewed Sgt. Thomas Streckfuss, an

emergency responder who tried to resuscitate Sgt. Sommer before he was pronounced

dead. Sgt. Streckfuss told NCIS agents that plaintiff talked to him that night about

receiving Sgt. Sommer's $250,000.00 life insurance death benefit, but said she never

thought she would see it. (SSUF 7.)

On February 25, 2002, specimens from Sgt. Sommer’s autopsy were received by

the federal Armed Forces Institute of Pathology (AFIP) in Washington, D.C., and on

March 12, 2002, the AFIP reported finding no alcohol or drugs in Sgt. Sommer’s autopsy

specimens. (SSUF 8.) The alcohol/drug testing could not detect heavy metals, and Dr.

Robinson saw no reason to request heavy metals testing. (SSUF 9.) On June 4, 2002,

the Dr. Allen Burke of the AFIP examined Sgt. Sommer's heart and reported that it was

"morphologically normal." (SSUF 10.) At the end of 2002, a military death review panel

1 References to supporting documentation are included in the Separate Statement of

Uncontroverted Facts, and the supporting documentation is lodged in support of this motion.


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of the federal Naval Criminal Investigative Service (NCIS) recommended that Sgt.

Sommer's tissues and serological specimens be tested for heavy metals before closing its

inquiry into whether the death was natural. (SSUF 11.)

B. Initial Identification of Arsenic.

On March 7, 2003, Dr. Jose Centeno's lab at the AFIP identified high arsenic levels

in Sgt. Sommer's liver and kidney specimens, as well as arsenic in other tissues. (SSUF

12.) Dr. Centeno has published over 19 scientific papers on arsenic, and is an expert in

the measurement of arsenic species and arsenic metabolites in human fluids and tissues.

(SSUF 13.) Dr. Centeno's test results for liver and kidney specimens were the highest

arsenic levels he had ever found in such tissues, and he immediately considered the

possibility of contamination. (SSUF 14.) Dr. Centeno and Dr. Todor Todorov, also of

the AFIP, performed further arsenic testing on May 7, 2003, including serial dilution of

samples because the tested samples contained so much arsenic. (SSUF 15.)

C. Investigation Following Identification of Arsenic.

On June 11, 2003, NCIS agents learned from the Navy-Marine Corps Relief

Society (NMCRS) that in November 2000, plaintiff had sought funds and the NMCRS

had turned her down, citing plaintiff’s unwillingness to adapt her lifestyle to live within

her income. (SSUF 16.) At the time plaintiff requested funds, the Sommer household

operated on a monthly deficit of $867.00, due in part to excessive spending. (SSUF 17.)

On July 11, 2003, an NCIS agent investigated possible arsenic contamination of

Sgt. Sommer's water supply, reviewing arsenic testing of the water supply for workspaces

and residential areas at the Marine Corps Air Station Miramar where Sgt. Sommer was

assigned. No arsenic contamination was identified. (SSUF 18.) On August 5, 2003, an

NCIS agent investigated possible arsenic contamination at the Miramar hazardous

material supply management facility, and found no indication of arsenic or arsenic

derivatives in the facility supply, or in reclaimed materials. (SSUF 19.)

On August 15, 2003, NCIS agents obtained credit information from which they

calculated that plaintiff had unpaid indebtedness at the time of Sgt. Sommer's death of


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approximately $23,628.00. (SSUF 20.)

On October 17, 2003, four NCIS agents visited Alphonse Poklis, Ph.D., a

toxicologist at Virginia Commonwealth University.2

On August 15, 2003, NCIS agents obtained plaintiff's bank records and learned

that she had $127.05 in her account on February 6, 2002. On February 8, 2002 she

withdrew some money at an automated teller machine (ATM) at the Ximed medical

office building in La Jolla. (SSUF 31.) On that same date, February 8, 2002, she visited

La Jolla cosmetic surgeon Dr. Scott Miller at the Ximed medical building.

(SSUF 21.) Dr. Poklis has

contributed to six published articles about arsenic, the most recent of which appeared in

1990, but he does not diagnose or treat disease, nor conduct autopsies. (SSUF 22.) The

NCIS agents provided Dr. Poklis with records. (SSUF 23.) Dr. Poklis discussed Sgt.

Sommer’s elevated copper levels and suggested further investigation. (SSUF 24.) Dr.

Poklis did not tell NCIS agents that it was not a case of arsenic poisoning, or that the

AFIP arsenic test results were "false." (SSUF 25.) Dr. Poklis would not be surprised if

the same high arsenic levels are still present in the specimens tested by the AFIP. (SSUF

26.) Dr. Poklis did not write down the opinions he shared with NCIS agents in 2003.

(SSUF 27.) An NCIS-written report of his meeting with NCIS agents was provided to

him for review. (SSUF 28.) Dr. Poklis did not suggest any changes or additions to the

NCIS-written report. (SSUF 29.) Dr. Poklis did not communicate any arsenic-related

opinions to any defendant between his 2003 meeting with AFIP agents and his January,

2007 testimony at the murder trial. (SSUF 30.)

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2 The complaint (Doc. #1 at ¶ 30) inaccurately alleges that Dr. Poklis is a "forensic

pathologist.”

(SSUF 32.)

NCIS agents learned that Dr. Miller specialized in aesthetic cosmetic surgery that

included breast surgery. (SSUF 33.) A subsequent search warrant on Dr. Miller’s office

disclosed that the purpose of plaintiff’s February 8, 2002 visit was “breast augmentation,”

that she posed for “before” photographs of her breasts, that she later wrote Dr. Miller a

3 Sgt. Sommer reportedly first experienced gastrointestinal symptoms at about 3:00 a.m., on

February 9, 2002, hours after plaintiff saw Dr. Miller. (SSUF 1).


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check dated April 4, 2002, that he deposited the check on April 5, 2002, that the surgery

was performed on April 18, 2002, exactly two months after Sgt. Sommer’s death, and

that the paid-in-advance cost was $5,400.00. (SSUF 34.)

NCIS agents learned that on the morning of February 8, 2002, Sgt. Sommer had

traveled to El Centro with other Marines, returning to San Diego that afternoon. (SSUF

35.) NCIS agents subsequently confirmed that Sgt. Sommer was the only Marine who

went to El Centro that day who got sick afterwards. (SSUF 36.) NCIS Agents

Terwilliger believed that plaintiff had murdered Sgt. Sommer. (SSUF 37.)

D. Initial Involvement of Moving Defendants.

None of the moving defendants was consulted about Sgt. Sommer's death before

December, 2004. (SSUF 38.) NCIS agents initially presented their case to the District

Attorney’s Office in late December, 2004. (SSUF 39.) (As noted above, Sgt. Sommer

had been dead almost three years by then, and arsenic had been detected in his autopsy

specimens almost two years earlier.) NCIS agents subsequently consulted Chief Medical

Examiner Dr. Wagner, providing Sgt. Sommer's medical records and information about

their investigation. (SSUF 40.) On February 14, 2005, Dr. Wagner sent an e-mail to Dr.

Centeno, with a copy to Dr. Poklis, asking if it was a case of arsenic poisoning, and if the

arsenic distribution was unusual. Dr. Centeno replied, also by by e-mail. (SSUF 41.)

Dr. Poklis did not reply to Dr. Wagner’s e-mail. (SSUF 42.)

E. Preparing to File Criminal Case.

On August 30, 2005, consultant Bernard Eisenga M.D. issued a report stating his

opinion that acute arsenic poisoning was the "most likely cause" of Sgt. Sommer's death.

(SSUF 43.) On October 21, 2005, Dr. Wagner issued an amended death certificate

indicating that Sgt. Sommer’s death was a homicide caused by arsenic poisoning. (SSUF

44.)

F. Criminal Case and Arrest Warrant.

On November 30, 2005, the District Attorney’s Office filed a Superior Court

complaint alleging that plaintiff murdered Sgt. Sommer for financial gain by


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administration of poison. (SSUF 45.) The Honorable Robert F. O'Neill, Judge of the

Superior Court, issued a warrant for plaintiff’s arrest based on the declaration of NCIS

agent Rob Terwilliger. (SSUF 46.) Plaintiff was arrested pursuant to warrant in Florida

and extradited. On March 10, 2006, plaintiff was arraigned in San Diego Superior Court

and pleaded not guilty. (SSUF 47.)

On March 20, 2006, the District Attorney's Office provided written disclosures to

plaintiff’s defense counsel that included page number 1169 (Bates no. DA/ME - 001169).

Page 1169 itemized Sgt. Sommer’s autopsy specimens, some located at the AFIP, and the

others at Balboa Naval Hospital. (SSUF 49.)

On July 11, 2006, after a Preliminary Examination, the Superior Court ordered

plaintiff held for trial, finding reasonable suspicion and probable cause to believe that

plaintiff killed Sgt. Sommer for financial gain by poison. (SSUF 50.) On July 25, 2006,

the People filed a written motion for a protective order (gag order) to stop plaintiff's

defense counsel from further discussing the facts of the case in the media, citing

numerous published statements by plaintiff’s defense counsel revealing non-public

information about the case, and his distribution of physical evidence to the media such as

an audiotape of the 9-1-1 call the night Sgt. Sommer died, and a videotape of plaintiff

speaking at Sgt. Sommer’s funeral. (SSUF 51.)

On October 19, 2006, the autopsy specimens that had been tested at Dr. Centeno's

AFIP lab were shipped from the AFIP to NMS Labs, a private commercial lab designated

by plaintiff's criminal defense counsel. (SSUF 52.) NMS Labs tested those specimens

for arsenic. (SSUF 53.) NMS Labs found the same high liver and kidney arsenic levels

that Dr. Centeno’s AFIP lab had found over three years earlier. (SSUF 54.) NMS Labs

repeated its arsenic tests and confirmed those unusually-high arsenic levels. (SSUF 55.)

NMS Labs reported its arsenic findings by a different weighing method than the AFIP

reported, yielding lower numerical values, but when converted to the same weighing

method, NMS Labs found the same high arsenic levels as the AFIP for liver and kidney

samples. (SSUF 56.)


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On November 30, 2006, an NCIS agent, accompanied by a District Attorney

Investigator, visited areas in El Centro that Sgt. Sommer reportedly visited on February 8,

2002. They found no indication that any other Marine on the assignment got sick after

visiting El Centro that day, or that Sgt. Sommer had been exposed to arsenic in El Centro

that day. (SSUF 57.)

The murder trial began on January 2, 2007. (SSUF 58.) D.D.A. Gunn saw Dr.

Poklis’ name on a witness list and tried to contact him. (SSUF 59.) On January 11,

2007, Dr. Poklis replied by e-mail, telling D.D.A. Gunn that "[m]y opinions in the

Sommer case are available for your review in my NCIS interview back in October 2003."

(SSUF 60.) That was Dr. Poklis' only communication to anyone at the District Attorney's

Office before he testified as a trial witness. (SSUF 61.) Dr. Poklis felt he should not talk

to D.D.A. Gunn because he had been “retained by the defense,” and it was not his “job”

to be D.D.A. Gunn’s “conscience” and “it’s not my responsibility to be the conscience of

the San Diego prosecutors.” (SSUF 62.) In this lawsuit, plaintiff has asserted attorney-

client and attorney work product to refuse production of e-mail to Dr. Poklis listed on

plaintiff's privilege log but not produced; Magistrate Judge Skomal denied moving

defendants’ motion to compel disclosure, and moving defendants filed objections.

(SSUF 63.)

During the murder trial, D.D.A. Gunn orally requested a protective order to stop

plaintiff’s defense counsel from continuing to give media interviews during the trial.

Judge Deddeh denied the request, observing that jurors had been screened for media

exposure before trial and were admonished not to listen to or read news about the case.

(SSUF 64.) Judge Deddeh commented that a juror or alternate juror may have seen “Mr.

Udell’s news conference.” (SSUF 65.)

Jurors heard testimony from Dr. Poklis at the murder trial. The trial judge did not

allow him to testify to cause of death because he was not a pathologist and not qualified.

(SSUF 66.) Plaintiff testified on her own behalf. (SSUF 67.) Testimony was presented

on plaintiff’s behalf to the effect that she had no financial motive to murder Sgt. Sommer.


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(SSUF 68.) Plaintiff also presented witnesses who testified to the effect that she grieved

Sgt. Sommer’s death and had a happy marriage. (SSUF 69.) Plaintiff elicited trial

testimony attempting to show that the AFIP's evidentiary chain of custody had

unexplained breaks. D.D.A. Gunn had no advance warning that plaintiff planned to

challenge the AFIP arsenic test results or the AFIP chain of custody before plaintiff

presented expert witnesses in the defense portion of the criminal trial. (SSUF 70.) The

Superior Court jury that heard such evidence convicted plaintiff of first degree murder by

poisoning Sgt. Sommer for financial gain. (SSUF 71.)

G. Post-Trial Events.

Plaintiff’s retained defense counsel Allen Bloom first appeared after she was

convicted. (SSUF 72.) On May 30, 2007, D.D.A. Gunn sent Mr. Bloom e-mail message

confirming that the AFIP and Balboa Naval Hospital still had the autopsy specimens and

materials. (SSUF 73.) On July 17, 2007, Mr. Bloom sent Ms. Gunn an e-mail stating

that "[f]ixing solutions can contaminate tissues causing false positives for heavy metal,

including arsenic." (SSUF 74.) The samples at Balboa Naval Hospital had been

processed with fixing solution containing formaldehyde, a fixative. (SSUF 75.)

Between November 14 and 30, 2007, trial Judge Peter Deddeh heard plaintiff's

motion for new trial, and granted the motion on grounds of ineffective assistance of

plaintiff's trial counsel. (SSUF 76.) Judge Deddeh ruled that the “most devastating

issue” of ineffective assistance at trial was “opening the door” by putting on two trial

witnesses, Janet Lippert and Robi Peters, who testified to plaintiff’s grief following Sgt.

Sommer's death. Judge Deddeh ruled that it was “completely unnecessary” for plaintiff’s

defense counsel to put them on, and it “sprung open the door” to evidence of plaintiff’s

behavior after Sgt. Sommer’s death that Judge Deddeh otherwise would have excluded.

(SSUF 77.) Such testimony described plaintiff’s partying after Sgt. Sommer’s death,

including sexual relations with four Marines, plaintiff’s flashing of her bare breasts,

plaintiff’s participation in a wet t-shirt contest and her participation in a thong exhibition

within three months of Sgt. Sommer’s death. (SSUF 77.)


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Attorney Bloom did not request post-trial arsenic testing. (SSUF 78.) The post-

trial arsenic testing was performed at the request of the District Attorney’s Office, and

consisted of sending paraffin blocks containing Sgt. Sommer’s tissues to Dr. LeBlanc’s

lab in Quebec. (SSUF 79.) At the time, D.D.A. Gunn erroneously believed that the

paraffin-block specimens had never been processed with fixing solutions containing

formaldehyde, and were suitable for arsenic testing. (SSUF 80.) As noted above, Mr.

Bloom contended (at the time) that fixing solutions can contaminate tissues and cause

false arsenic results. (SSUF 74.) In April 2008, before the Quebec post-trial arsenic test

results requested by the District Attorney’s Office were known, Mr. Bloom objected to

such testing, and demanded that all testing be stopped. (SSUF 81.) By the time plaintiff

had been in custody almost a full year after Ms. Gunn e-mailed Mr. Bloom that the

autopsy specimens and materials still existed. (SSUF 73.) Dr. LeBlanc’s lab in Quebec

reported finding no arsenic. (SSUF 82.) On April 17, 2008, the District Attorney’s

Office moved to dismiss the criminal case. (SSUF 83.) Plaintiff was released from

custody the same day. (SSUF 84.)

Dr. Wagner was not consulted about the post-trial arsenic testing before the

criminal case was dismissed. (SSUF 85.) Dr. Wagner was familiar with the process for

preparing tissues in fixing solutions and preparing paraffin blocks, and was not surprised

that no arsenic was found. He would have expected such processing to remove arsenic

that may have been present. (SSUF 86.) Autopsy specimens destined to be embedded in

paraffin blocks are first processed to remove all water, and arsenic compounds of the type

found in Sgt. Sommer’s tissues are soluble in water. (SSUF 87.) Arsenic compounds of

the type detected in Sgt. Sommer’s tissues are also removed from chemically-processed

tissues by liquid formalin, even when the processed tissues have not been embedded in

paraffin blocks. (SSUF 88.)

///

///

///


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H. Information About Sgt. Sommer’s Final Illness.

Sgt. Sommer reportedly experienced nausea, vomiting, abdominal pain, diarrhea,

sinus tachycardia4, dizziness and orthostatic hypotension5, and a drop of over 25% in

blood platelet count6, followed by fatal cardiac arrhythmia.7

Almost all arsenic identified in Sgt. Sommer's liver and kidney specimens was in

the species (compound) known as DMA (dimethylarsenic acid, also called cacodylic

acid), which can either result from ingestion of DMA, or the body’s metabolism of other

arsenic species after ingestion. (SSUF 91.) A lethal dose of DMA can be about four

tablespoons; DMA is tasteless, smells like garlic, and dissolves in water like table sugar.

(SSUF 92.) A person who ingests arsenic and survives a week or ten days can begin to

have a disturbed heart rhythm. (SSUF 93.) Cardiac arrhythmia is a medically-

recognized risk when arsenic is ingested. (SSUF 94.) DMA alone may be present in

liver and kidney tissues after death when arsenic has been ingested. (SSUF 95.) There

are no published scientific case studies showing the time it takes for DMA to be cleared

from human tissues if the victim survives for a period of several days after ingestion.

(SSUF 96.) The human body does not process and distribute DMA in tissues the same

way as other arsenic species when the victim survives for a number of days. (SSUF 97.)

(SSUF 89.) The symptoms

documented for Sgt. Sommer in February 2002 are all medically recognized as symptoms

of arsenic ingestion. (SSUF 90.)

According to Ruth H. Goldman, M.D., a qualified medical expert who was not

retained on behalf of the moving defendants, Sgt. Sommer died of arsenic poisoning to a

reasonable medical certainty. Plaintiff’s arsenic expert Dr. Poklis did not have an

4 Sinus tachycardia is a rapid pulse of over 100 beats per minute; Sgt. Sommer’s pulse was 126

beats per minute; Sgt. Sommer’s pulse a few weeks before becoming ill had been unusually slow, a condition known as sinus bradycardia, indicating 60 beats or less.

5 Orthostatic hypotension is a sudden drop in blood pressure when standing, a condition

associated with dizziness, which Sgt. Sommer also reported. 6 Sgt. Sommer’s platelet count fell to 150,000 after being measured at 206,000 a few weeks

before his illness. 7 Disturbed heart rhythm associated with disturbed electrical impulses.


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alternative diagnosis that explained all of Sgt. Sommer’s symptoms and death.(SSUF 98.)

Moving defendants cannot determine why no request for post-trial arsenic testing

was made by Mr. Bloom, or why Mr. Bloom demanded that such testing be stopped

before he learned that no arsenic was found. Moving defendants requested production of

documents that may have explained why Mr. Bloom opposed rather than participated in

the actions that resulted in his client’s release from imprisonment, but have been denied

production of communications that were identified on plaintiff's privilege log and

withheld on attorney-client and work product grounds; Magistrate Judge Skomal denied

moving defendants’ motion to compel such disclosure, and moving defendants filed

objections. (SSUF 99.)

Dr. Robinson, the Marine pathologist who performed Sgt. Sommer’s autopsy on

February 19, 2002, and who originally opined that it was a natural death, would not have

opined that it was a natural death if he had been aware of the arsenic testing results.

(SSUF 100.)

I. Functions Of Moving Defendants.

AFIP agents presented their case to the District Attorney’s Office to initiate a

prosecution. (SSUF 101.) The District Attorney’s Office participated in additional

investigation led by NCIS agents until the end of trial. (SSUF 102.) District Attorney

Bonnie Dumanis was not involved in day-to-day activities in plaintiff’s matter, except

when the gag order was sought to prevent plaintiff’s defense counsel from continuing to

publicize non-public facts and evidence. (SSUF 103.) Dr. Wagner was not involved in

plaintiff’s matter before January or February 2005. (SSUF 104.) No one suggested to

Dr. Wagner that he was expected to find any particular cause of death. (SSUF 105.)

IV

LEGAL STANDARDS

A. Standard for Defense Summary Judgment Motion.

Summary judgment is justified "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that


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there is no genuine issue as to any material fact." Fed. R. Civ. Pro. 56(c). To defeat a

motion for summary judgment, the non-moving party must show (1) that a genuine

factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact

exists when the non-moving party produces evidence on which a reasonable trier of fact

could find in its favor viewing the record as a whole in light of the evidentiary burden the

law places on that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56

(1986). Facts are "material" if they "might affect the outcome of the suit under the

governing law." Anderson, 477 U.S. at 248). The nonmoving party cannot simply rest

on its allegations without any significant probative evidence tending to support the

complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). The more implausible the claim

or defense asserted by the nonmoving party, the more persuasive its evidence must be to

avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52

F.3d 810, 815 (9th Cir. 1996). Evidence is viewed in a light most favorable to the

nonmoving party. Anderson, 477 U.S. at 255.

B. Constitutional Rights.

1. Fourth Amendment Unlawful Imprisonment.

Plaintiff was arrested and imprisoned by the judicial authority of an arrest warrant,

followed by judicial arraignment, preliminary examination, trial and conviction. Every

day that plaintiff spent in custody was judicially authorized in advance. (SSUF 46.)

Fourth Amendment civil liability for unlawful imprisonment resulting from a judicially-

authorized arrest requires (1) a substantial showing of deliberate falsehood or reckless

disregard for the truth in obtaining an arrest warrant, and (2) a showing that but for the


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dishonesty, the arrestee would have not been arrested. Liston v. County of Riverside, 120

F.3d 965, 973 (9th Cir. 1997). A plaintiff who shows such deliberate or reckless judicial

deception also must establish that the false statements and omissions were material to the

judge's probable cause determination: "the affidavit, once corrected and supplemented,"

must no longer be sufficient to provide a judge with a substantial basis for finding

probable cause. United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended by 769

F.2d 1410 (9th Cir. 1985). "[O]nly the probability, and not a prima facie showing, of

criminal activity is the standard of probable cause." Illinois v. Gates, 462 U.S. 213, 235

(1983). Judges must determine probable cause by considering the "totality-of-the-

circumstances," Id. at 230. "A letter-perfect affidavit is not essential." United States v.

Esparza, 546 F.2d 841, 844 (9th Cir. 1976).

2. Fourteenth Amendment Due Process.

Plaintiff also alleges that "Defendants permanently stained [her] reputation." Doc.

#1 at ¶ 57. Reputation is not a constitutionally-protected liberty or property interest: The procedural due process rights of the Fourteenth Amendment apply only when there is a deprivation of a constitutionally protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). The essence of all of these claims is that the [plaintiff’s] reputation was damaged and that under various theories this constituted a deprivation of a protected property or liberty interest without due process of law. The Supreme Court made clear in Paul v. Davis, 424 U.S. 693 (1976) that reputation alone is not an interest protected by the Constitution. "The words 'liberty and property,' as used in the Fourteenth Amendment do not in terms single-out reputation as a candidate for special protection over and above other interests that may be protected by state law." Id. at 701, 96 S.Ct. 1155. The Court confirmed in Siegert v. Gilley, 500 U.S. 226, 233-34 (1991) that there is no constitutional protection for the interest in reputation.

WMX Technologies, Inc. v. Miller, 197 F.3d 367, 373 (9th Cir. 1999). In Weiner v. San

Diego County, 210 F.3d 1025, 1031 (9th Cir. 2000), § 1983 liability was rejected for the

San Diego District Attorney’s comments to a reporter about a criminal case, because no

constitutionally-protected interest was involved.

There is no other basis for due process liability in this case:

///


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In Paul v. Davis, 424 U.S. 693, 701 (1976), for example, we explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, 474 U.S., at 332, we reaffirmed the point that "[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.

County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).

C. Constitutional Causation.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002), the Court

held that "a coroner's reckless or intentional falsification of an autopsy report that plays a

material role in the false arrest and prosecution of an individual can support a claim under

42 U.S.C. § 1983 and the Fourth Amendment." Id. at 1126. Similarly, in Devereaux,

263 F.3d at 1075, the Ninth Circuit recognized "a clearly established constitutional due

process right not to be subjected to criminal charges on the basis of false evidence that is

deliberately fabricated by the government." In both cases, such actions could cause an

underlying constitutional deprivation. Causation should not be conflated with the

underlying deprivation.

Official-capacity liability is also best understood in terms of causation. An

official-capacity plaintiff must show that a constitutional deprivation was caused by

either (1) a longstanding practice or custom which constitutes a municipal entity’s

standard operating procedure; (2) a decision by an official who, by state law, had final

policy-making authority on the subject, or (3) a decision by a subordinate with officially-

delegated authority or whose decision was officially ratified. See Menotti v. City of

Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). If implementation of official regulations

did not cause a constitutional deprivation, it is “quite beside the point” that such

regulations may have authorized a constitutional deprivation. City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986). Constitutional liability can only result when causation


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is harnessed to a constitutional deprivation.

D. Qualified Immunity.

An individual defendant is entitled to summary judgment on grounds of qualified

immunity unless: (1) plaintiff has “ma[de] out a violation of a constitutional right,” and

(2) “the right at issue was ‘clearly established’ at the time of [the individual defendants']

alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). Either of the two

prongs may be considered first, and if not satisfied, will be dispositive without moving to

the other prong. Pearson, 555 U.S. at 236. Qualified immunity shields officers from

liability “insofar as their conduct d[id] 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).

E. Quasi-Judicial (Prosecutorial) Immunity.

1. Absolute Immunity for Preparing to Initiate Judicial Proceedings.

The protection of absolute immunity does not begin when a criminal case is filed

in court; it extends to preparation to initiate a criminal case, with certain exceptions: In the years since Imbler [v. Pachtman, 424 U.S. 409 (1976)], we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, Burns[v. Reed, 500 U.S. 478, 492 (1991)], or appears in court to present evidence in support of a search warrant application, Kalina[v. Fletcher, 522 U.S. 118,126 (1997)]. We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U.S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application, Kalina, supra, at 132 (Scalia, J., concurring).

Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009).

2. Absolute Immunity for Obtaining Arrest Warrant.

A prosecutor's application for an arrest warrant -- where the prosecutor is not the

affiant -- is protected by absolute immunity. [T]he usual function of a criminal complaint is not for the prosecutor to attest to facts based on personal knowledge. Instead, the prosecutor simply recounts the facts, produced by an investigation, that provide probable cause to arrest -- in this case, Gutierrez's statements. Kalina indicated that but for counsel personally swearing to the facts contained in her certification supporting the motion for an arrest warrant, she would have been protected


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by absolute immunity. Kalina, 522 U.S. at 129. Because Milstein does not allege that Appellees (or Doe 1) personally swore to the facts in the criminal complaint, absolute immunity is appropriate for this act.

Milstein v. Cooley, 257 F.3d 1004, 1012 (9th Cir. 2001).

3. Buckley v. Fitzsimmons Is Limited To Absolute Immunity.

The prosecutor in Buckley v. Fitzsimmons allegedly fabricated evidence during the

preliminary investigation of a crime, and made false statements at a press conference

announcing the return of an indictment. The Supreme Court evaluated those allegations

for absolute immunity, not for whether they amounted to constitutional deprivations: As the case comes to us, we have no occasion to consider whether some or all of respondents' conduct may be protected by qualified immunity. Moreover, we make two important assumptions about the case: first, that petitioner's allegations are entirely true; and, second, that they allege constitutional violations for which § 1983 provides a remedy. Our statement of facts is therefore derived entirely from petitioner's complaint and is limited to matters relevant to respondents' claim to absolute immunity.

Buckley v. Fitzsimmons, 509 U.S. 259, 261 (1993).

V

ARGUMENT

A. Plaintiff Cannot Show Individual Liability.

1. District Attorney Bonnie Dumanis.

The complaint accuses Dumanis of having "political ambitions" and having

"believed that a high-profile arrest and conviction would serve [her] personal goals" by

making herself and the District Attorney’s Office "famous." (Doc. #1 at ¶ 33.) The

complaint also accuses Dumanis of having "sought to change Todd Sommer’s death

certificate to list his cause of death as homicide by arsenic so that they [she and other

defendants] could make their pieces fit." (Doc. #1 at ¶ 34.)

The only person with a pre-existing motive was plaintiff’s defense counsel Allen

Bloom. As a deputy district attorney, Dumanis was involved in a case involving Karen

Wilkening, the so-called “Rolodex 500” case. Mr. Bloom was caught in a tape-recorded

undercover operation in which he “solicited a high-class prostitute from Ms. Wilkening.”

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Ms. Dumanis understands that Mr. Bloom has a “vendetta” against her, holding her

responsible for his wife leaving him. (SSUF 106.)

Dumanis was not actively involved day-to-day activities in plaintiff’s matter.

(SSUF 103.) It is not necessary to analyze for immunity as to Dumanis, because plaintiff

cannot show that Dumanis did anything for which she could be liable. Absent liability,

there is no need for immunity.

2. Deputy District Attorney Laura Gunn.

Ms. Gunn prosecuted plaintiff, then sought dismissal of the criminal case and

obtained her release from custody. She did not function as a police officer investigating

an unsolved crime. She functioned as a prosecutor. (SSUF 101.) The investigation

continued to be led by NCIS agents until the end of trial. (SSUF 102.)

During the hearing on plaintiff’s motion for a new trial, Judge Deddeh repeatedly

stated that Ms. Gunn acted properly and professionally throughout the case. (SSUF 107.)

The complaint falsely alleges that "several qualified independent forensic

toxicologists" and "highly respected forensic pathologist" Dr. Poklis (who is not a

pathologist at all) told defendants that the AFIP’s arsenic results were "false." (Doc. #1

at ¶¶ 29-30.) Those allegations are flagrant fabrications on plaintiff’s part. To try to get

at the truth, defendants sought documents concerning the experts consulted on plaintiff’s

behalf. It stands to reason that if plaintiff’s own retained expert Dr. Poklis told

defendants the arsenic evidence was “false,” there would be documentation of it in his

communications with plaintiff’s counsel. Plaintiff served a privilege log suggesting such

communications exist, but refused to allow discovery on attorney-client and work-

product grounds. Magistrate Judge Skomal denied defendants’ motion to compel such

discovery, and defendants filed objections to that ruling. (SSUF 63.) Plaintiff should not

be allowed to oppose summary judgment by trying to show that defendants were told by

experts that the arsenic evidence was false, because plaintiff has refused to allow

discovery of communications and documents related to such allegations.

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3. Chief Medical Examiner Glenn Wagner.

The medical examiner in Galbraith v. County of Santa Clara allegedly falsified his

autopsy findings. Galbraith, 307 F.3d at 1126. Dr. Wagner regularly performs

autopsies, but he did not perform the autopsy on Sgt. Sommer’s body or perform the

arsenic tests. Sgt. Sommer’s body had been cremated (at plaintiff’s request) three years

before Dr. Wagner was consulted.

The complaint falsely alleges that Sgt. Sommer’s arsenic levels "had never been

seen in the history of reported arsenic testing;" that it is "scientifically impossible to have

such high levels of arsenic in only two of the tissue samples;" that "never in the history of

arsenic testing had there been a finding that virtually all the arsenic found in tissue

samples had metabolized into DMA;" that "this was simply impossible," and that "Todd

did not exhibit symptoms of arsenic poisoning." (Doc. #1 at ¶¶ 27-28). Jurors heard

experts on both sides of the arsenic issue. There is no clearly established right for

criminal defendants to be free from testimony from experts whose opinions are consistent

with their guilt.

B. Absolute Immunity.

The complaint alleges that Sgt. Sommer died in February 2002, and defendants

spent the next two and one-half years fabricating false and corrupt evidence. No moving

defendant was involved in plaintiff’s matter until December 2004, more than two and

one-half years after Sgt. Sommer died. (SSUF 38.) NCIS agents consulted the moving

defendants in relation to prosecution, and continued to lead the investigation. (SSUF

101, 102.) Absolute immunity protects the prosecutorial function. Burns v. Reed, 500

U.S. 478, 492 (1991).

C. Qualified Immunity.

Everyone tried on criminal charges is constitutionally presumed to be innocent

until proven guilty, undermining any argument that there can be a clearly-established

federally protected right for a person not to be criminally charged and criminally tried,

even if innocent. As noted above, there is no clearly established right for criminal


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defendants to be free from testimony from experts whose opinions are consistent with

their guilt.

D. Official-Capacity Liability.

1. District Attorney Liability is Unavailable as a Matter of Law.

As a matter of law, California district attorneys cannot be liable in official capacity

when they prepare to prosecute or prosecute California criminal law violations. Pitts v.

County of Kern, 17 Cal.4th 340, 362 (1998). California prosecutors act for the State in

such matters and not as policymakers for municipal-type entities. "The County was not

the actor; the state was." Weiner, 210 F.3d at 1031. On this subject, federal liability is

controlled by state law, because federal liability depends on how state law grants official

decision-making authority. Official capacity liability for district attorneys is available in

some other states; see Connick v. Thompson, 131 S.Ct. 1350 (2011), involving a

Louisiana prosecutor.

2. Plaintiff Cannot Show a Basis for Medical Examiner Liability.

The Pitts opinion does not extend to medical examiners, but plaintiff cannot show

a basis for official-capacity medical examiner liability. Dr. Wagner’s arsenic opinions

were specific to Sgt. Sommer’s case. No authority supports official-capacity liability

based on a medical examiner’s single opinion. Ordinarily a pattern of similar violations

must be shown. See Connick, 131 S.Ct. at 1360 [history of four established incidents of

failing to disclose exculpatory evidence does not demonstrate pattern nor support single-

incident liability].

E. Plaintiff’s Complaint Is Time-Barred.

Plaintiff’s complaint was filed September 24, 2009. (Doc. #1.) Plaintiff’s criminal

case was dismissed April 17, 2008. Federal courts apply a one-year statute of limitations

to section 1983 actions based on libel, slander and false imprisonment. Harrison v.

County of Alameda, 720 F.Supp. 783 (N.D. Cal. 1989). That one-year period was not

changed when the California legislature extended the limitations period for wrongful

injury from one year to two years. Compare California Code of Civil Procedure section


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340 (one year for “libel, slander, false imprisonment”) to section 335.1 (two years for

assault, battery, negligent or wrongful injury or death). Plaintiff’s claim against the

moving defendants is for unlawful imprisonment and lost reputation due to defamation,

not negligent or wrongful personal injury, and is governed by section 340, not section

335.1. Plaintiff’s imprisonment ended on the day the criminal case was dismissed, April

17, 2008, and the limitations period was not tolled due to pendency of a criminal case,

because the criminal case was dismissed on the same day. Plaintiff’s complaint was filed

at least five months past the latest date on which the one-year statute could have expired,

and is barred by the one-year statute of limitations of section 340.

VI

CONCLUSION

If the complaint complied with Federal Rules of Civil Procedure, rule 11, this

motion would be unnecessary, because a dismissal motion would have disposed of it.

Plaintiff’s deceptive allegations cannot be excused by ignorance of the facts, because the

facts were thoroughly litigated in a month-long Superior Court murder trial. This motion

cites only a fraction of the evidence showing that plaintiff murdered Sgt. Sommer.

Additional facts include that Sgt. Sommer withdrew the last of his inherited trust fund

only weeks before he died, so plaintiff’s financial distress was about to become worse.

The death benefits financed a lifestyle that led to plaintiff’s felony child neglect

conviction and removal of her children from her custody the following year. That all

happened before plaintiff was arrested or charged with murder.

It was plaintiff’s extreme good fortune that the District Attorney’s Office moved to

dismiss the criminal case quickly, without taking time to consult Dr. Wagner or other

experts who knew how tissue specimens are processed after an autopsy, who could have

explained why the AFIP’s untreated fresh specimens contained arsenic while the

processed specimens at Balboa Naval Hospital would have lost arsenic during their initial

processing. Moving defendants profoundly disagree with Magistrate Judge Skomal’s

discovery ruling reflecting his view that this case is only about what the moving


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defendants knew, and not about what plaintiff’s defense counsel knew, because if moving

defendants knew or should have known before testing that the processed samples were

arsenic-free, then plaintiff’s defense counsel must have known as well. (SSUF 99.)

There must have been good reasons why Mr. Bloom did not request -- and in fact

opposed -- post trial arsenic testing.

Officials should not be threatened with personal liability for doing their part in the

criminal justice system. The moving defendants respectfully request that the Court grant

summary judgment for the reasons set forth in the notice of motion. If plaintiff’s

opposition to this motion relies on the same fabrications as plaintiff alleged in the

complaint, the Court should award sanctions to moving defendants pursuant to Rule 11. DATED: December 16, 2011 THOMAS E. MONTGOMERY, County Counsel By: s/ MORRIS G. HILL, Senior Deputy Attorneys for Defendants Bonnie Dumanis and Laura Gunn (apparently also sued as “District Attorney’s Office”) and Glenn N. Wagner (apparently also sued as “Medical Examiner’s Office”) E-mail: [email protected]


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THOMAS E. MONTGOMERY, County Counsel (State Bar...

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