Opinion
3:22-cv-00429-YY
12-05-2023
EDWARD BAILEY, Plaintiff, v. MULTNOMAH COUNTY SHERIFF, and MICHAEL REESE, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Edward Bailey, who is proceeding pro se, has brought this 42 U.S.C. § 1983 action against defendant Multnomah County Sheriff's Office (“MCSO”), Multnomah County Sheriff Michael Reese, officers Eric Smith, Kyle Tyson, Brian Beardsley, Lauren Baker, Barret Taylor, and other unnamed officers, alleging that after he was arrested in March of 2020 and processed for intake at the Multnomah County Detention Center (“MCDC”), officers used excessive force against him in attempting to place him in an isolation cell. First Am. Compl. ¶¶ 22-22.44, ECF 28. Currently pending is defendants' motion for summary judgment. ECF 61. As discussed below, defendants' use of force was not objectively unreasonable in light of plaintiff's active resistance and the need for security at the MCDC, and defendants are also entitled to qualified immunity. Therefore, defendants' motion for summary judgment should be granted.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate where the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must go beyond the pleadings and identify “specific facts showing that there is a genuine issue for trial.” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
II. Discussion
Defendants have moved for summary judgment on all of plaintiff's claims, arguing that (1) the force used against plaintiff was reasonable, (2) defendants are entitled to qualified immunity, (3) any Monell claim that could be broadly read from plaintiff's complaint fails as a matter of law, and (4) plaintiff's claims against as-yet-unidentified “John Doe” defendants are untimely. Mot. Summ. J. 1, ECF 61. Each argument is addressed in turn below.
A. Excessive Force During Pretrial Detention
Plaintiff asserts three claims: (1) “unnecessary and unreasonable use of physical force”; (2) “trespass on plaintiff . . . for excessive force”‘; and (3) “conspiracy to cover up unlawful and wrongful physical acts and evidence tampering.” First Am. Compl. 25-26, ECF 28 (capitalization omitted). Because plaintiff was a pretrial detainee at the time of incident, the first two claims for excessive force arise under the Due Process Clause of the Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”) (citation omitted). Although the third claim is captioned as a “conspiracy” claim, the allegations make clear that plaintiff is asserting another version of an excessive force claim. See First Am. Compl. 26, ECF 28. The court therefore analyzes all of plaintiff's claims under the standards applicable to the Fourteenth Amendment.
Plaintiff alleges that he
expected to proceed in his personal good health without injuries, secured in his capacities to perform his everyday life necessities without pain and suffering injuries for the rest of his life. By right, Plaintiff is entitled to a standard of care and to due process. Defendants have a legal duty to use due care and not cause any injury to Plaintiff or interfere with said rights in any way.First Am. Compl. 26, ECF 28 (as written).
To the extent plaintiff's claims could be broadly read to assert claims based on violations of the Oregon Constitution, those claims would necessarily fail because plaintiff has not alleged, much less produced, evidence that he complied with the Oregon Tort Claims Act, O.R.S. 30.260, by providing notice of a claim to the MCSO within 180 days of the alleged injury. See Garred v.Malheur Cnty., No. 2:14-cv-00517-SU, 2014 WL 4723121, at *4 (D. Or. Sept. 23, 2014) (explaining requirements for Oregon constitutional tort claims under O.R.S. 30.260).
“Use of force during pretrial detention is unconstitutionally excessive if it is ‘objectively unreasonable.' ” Hyde v. City of Willcox, 23 F.4th 863, 870 (9th Cir. 2022) (quoting Kingsley, 576 U.S. at 397). “Whether force is objectively reasonable depends on the facts and circumstances of each particular case.” Id. (simplified). Determining what is objectively reasonable requires the court to assume the “perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. (citation omitted). “[A] court must consider the legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security.” Id. (simplified).
“The following considerations may bear on the reasonableness (or unreasonableness) of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id. (simplified). “The most important factor is whether the suspect posed an immediate threat.” Id. (citing Mattos v.Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)). “This analysis is not static, and the reasonableness of force may change as the circumstances evolve.” Id. (citing Jones v. Las VegasMetro. Police Dep't, 873 F.3d 1123, 1130 (9th Cir. 2017).
The following description of the alleged excessive force incident is based largely on the court's review of the video evidence obtained from the MCDC surveillance system and submitted by the parties. The videos do not have any audio, but there are multiple camera angles that show the entire alleged excessive force incident and largely corroborate the MCSO staff members' written reports.
Both parties filed video evidence via physical flash drives through the court's electronic docketing system, CM-ECF. See ECF 32; ECF 49. Defendants properly served plaintiff with a copy of their physical flash drive; plaintiff did not serve defendants with a copy of his flash drive. See Mot. Summ. J. 2, ECF 61. The court has reviewed all the videos provided by the parties-both drives include identical videos from the MCDC surveillance videos from three different angles. See ECF 32, ECF 49 (containing videos named “MCL1500351 - 03-FH SEP 5-9.mp4”; “MCL1500351 - 06-FH Front.mp4”; and “MCL1500351 - 08-SEP 6-8.mp4”). Plaintiff's drive includes an additional video from a fourth “12-Holding” camera, which captured the initial moments of the encounter, from the time plaintiff was sitting on the floor apparently talking on the phone, to when officers ordered plaintiff to be taken to an isolation cell and he began walking with several officers surrounding him. See ECF 32 (containing video named “MCL1500351 - 12-Holding.mp4”). After the group turned the corner out of view of the “12-Holding” camera, they come into view of the other three cameras; plaintiff first went to the ground, and further events unfolded. See MCL1500351 - 12-Holding.mp4; MCL1500351 - 08-SEP 6-8.mp4. The analysis in this section is based on the three videos that were properly served and made part of the record at summary judgment. These three videos, as explained above, are identical to three of the videos plaintiff filed but did not serve on defendants. Consideration of the fourth “12-Holding” video is complicated by the conduct of both parties. First, it is unclear why defendants did not include the “12-Holding” video in its summary judgment submissions, as the video corroborates the officers' written reports and shows plaintiff taking the first action to escalate the interaction by forcefully swinging his arms in response to the officers' attempt to escort plaintiff to the isolation cell. Plaintiff, for his part, has repeatedly failed to follow the court's rules, procedures, and orders. Although pro se parties are not held to the same standards as attorneys, plaintiff's conduct has required the court to expend substantial resources in managing this case that should not have been necessary, this evidentiary issue and plaintiff's failure to serve his video evidence on defendants being the most recent example. Despite this, the court finds, in the interests of justice and deciding this case on its merits, that the fourth “12-Holding” video also will be considered-defendants have not moved to strike the “12-Holding” video, and the bates numbering and file name of the video (not to mention its contents) clearly show it to be an accurate surveillance video from the MCDC capturing the first moments of the interaction between plaintiff and the officers. Any prejudice to defendants in considering the “12-Holding” video is minimized by the fact that the video originated from defendants' own files and, as explained in more detail below, supports the conclusion that defendants' motion for summary judgment should be granted.
On March 17, 2020, plaintiff was arrested and taken to the MCDC. While being held in the dayroom, plaintiff was talking on the phone. Plaintiff stood up from floor where he had been sitting and started gesturing. Officer Baker, who was “working as the holding deputy,” observed plaintiff “getting loud” and told plaintiff to “sit down and be quiet.” Plaintiff and Baker had a back-and-forth verbal interaction, and though it is not entirely clear who said what to whom and in what order, plaintiff at one point stated that “I told y'all, I am going home,” and Baker repeatedly instructed plaintiff to sit down and be quiet. Officer Tyson also told plaintiff to sit down and be quiet. Baker then ordered plaintiff to be placed in an isolation cell.
First Am. Compl. ¶ 22, ECF 28 (verified complaint); see also Mot. Summ. J. 1, ECF 61.
First Am. Compl. ¶ 22, ECF 28.
MCL1500351 - 12-Holding.mp4 at 00:30, ECF 32.
Rodriguez Decl., Ex. 1 (“Event Report”) at 3, ECF 62.
Id.; see also First Am. Compl. ¶ 22, ECF 28.
Event Report 6, ECF 62.
Id. at 3.
Tyson and Baker approached plaintiff, who was not handcuffed or otherwise restrained at this point, to escort him to the isolation cell; Tyson placed his right hand on plaintiff's upper left arm and they began walking toward the isolation cell and past the control desk. Plaintiff was holding a paper bag in his left hand, and raised his left arm, then forcefully swung his arm forward twice. Baker and a third officer moved in to control plaintiff. Plaintiff crossed his arms in front of his chest and neck and placed each hand on the opposite shoulder. The officers held plaintiff's wrists and arms in place; Tyson had one of his hands on the back of plaintiff's neck and shoulder area, and a fourth officer came in to hold plaintiff's arms. Plaintiff alleges that Tyson was applying pressure to the back of his neck “sending electrical shocks down [his] spine.” Two other officers moved into the hallway near the group.
MCL1500351 - 12-Holding.mp4 at 00:57, ECF 32.
Id. at 00:58.
Id. at 01:00.
Id. at 01:01.
Id.
First Am. Compl. at 13, ECF 28.
MCL1500351 - 08-SEP 6-8.mp4 at 01:01, ECF 49.
Plaintiff suddenly pulled his arms out of the officers' hold, and went down toward the floor. He wrapped his arms around Officer Beardsley's leg and rolled backward while still holding onto Beardsley. Multiple officers moved in to subdue plaintiff by gaining control of his legs and arms. The officers rolled plaintiff onto his stomach to handcuff his wrists behind his back; the video shows plaintiff actively and forcefully resisting and the officers attempting to use various holds to gain control. Multiple officers gave numerous instructions to plaintiff to stop resisting.
Id. at 01:06; see also MCL1500351 - 06-FH Front.mp4 at 01:07, ECF 49.
MCL1500351 - 06-FH Front.mp4 at 01:08, ECF 49; Event Report 4, ECF 62.
MCL1500351 - 06-FH Front.mp4 at 01:10, ECF 49.
Id. at 01:11.
Id. at 01:17.
E.g., Event Report 3, 5, ECF 62.
Once plaintiff was handcuffed, three of the five officers who had been engaged in attempting to restrain plaintiff stepped back from plaintiff. Two officers then rolled plaintiff over, lifted him to his feet, and started to move him toward the isolation cell. Plaintiff went limp (or “deadweight” as one officer described it) and went to the floor, refusing to walk to the isolation cell. Two officers began to drag plaintiff toward the cell and plaintiff started kicking his legs. Plaintiff rolled himself away from the officers' hold and began writhing on the floor and kicking; the officers completely disengaged from plaintiff for a few seconds as plaintiff rolled on the floor and continued to kick his legs. During this time when the officers were disengaged, plaintiff appeared to strike his head on the floor or otherwise injure his mouth, and he began bleeding.
MCL1500351 - 06-FH Front.mp4 at 01:56, ECF 49.
Id. at 02:10.
Id. at 02:18; see also Event Report at 4, ECF 62.
MCL1500351 - 08-SEP 6-8.mp4 at 02:20, ECF 49.
Id. at 02:23.
Event Report 5, ECF 62.
An officer moved in to hold plaintiff's legs and other officers moved in to hold plaintiff on the ground. Plaintiff continued to resist, the officers increased their attempts to physically restrain plaintiff to secure his legs, and a lengthy struggle ensued. Sergeant Taylor ordered another officer to get the restraint chair because he “did not want [plaintiff] to injure himself any further due to his aggressive behavior . . . and the deputies needed to safely disengage from this event.” Plaintiff continued to resist as five officers attempted to restrain plaintiff legs. At some point, plaintiff vomited on the ground, and officers moved him away from that spot and into a “recovery position” to prevent him from choking.
MCL1500351 - 08-SEP 6-8.mp4 at 02:31, ECF 49.
Id. at 02:35.
Event Report 6, ECF 62; see also MCL1500351 - 08-SEP 6-8.mp4 at 04:54, ECF 49.
MCL1500351 - 08-SEP 6-8.mp4 at 04:57, ECF 49.
Id. at 05:00; Event Report 4, ECF 62.
The officers attempted to place plaintiff in the restraint chair and he continued to resist by arching his back, kicking his legs, and writhing, and another lengthy struggle ensued. Officers placed a spit sock over plaintiff's head to prevent him from spitting blood. The officers then worked to secure plaintiff in the restraint chair, and plaintiff continued to forcefully resist the officers' efforts. One officer bent plaintiff forward and held plaintiff's head between his legs to allow other officers to release his hands from the handcuffs and secure them to the chair. Once plaintiff was secured in the chair, medical staff examined plaintiff, and an officer subsequently wheeled plaintiff to the isolation cell.
MCL1500351 - 08-SEP 6-8.mp4 at 06:52, ECF 49.
Id. at 07:14; Event Report 5, ECF 62.
MCL1500351 - 08-SEP 6-8.mp4 at 08:45, ECF 49; Event Report 4 (“[Plaintiff] at this point. was exhibiting a strength that seemed almost unnatural. He was lifting me off the ground as I attempted to control his head and shoulders.”).
MCL1500351 - 08-SEP 6-8.mp4 at 09:34, ECF 49.
Id. at 10:43; id. at 17:54.
Under the totality of the circumstances, defendants' use of force was reasonable and did not violate plaintiff's constitutional rights. Officers first attempted to escort plaintiff to the isolation cell without restraints or force of any kind. It was only after plaintiff became physically combative that any of the defendants used force against him. The videos show plaintiff swung his arm forcefully in response to an officer touching his arm to escort him to the isolation cell. The videos show plaintiff resisted being walked to the isolation cell by the officers, and show plaintiff escaped the officers' holds on him and attempted to bring one of the officers down to the ground with him by grabbing his leg. The videos show plaintiff violently writhing and rolling on the ground while kicking his legs. The videos further show the officers' use of force rose and fell with the threat that plaintiff posed, including at one point, completely disengaging from plaintiff. During this time, plaintiff rolled around erratically on the floor and struck his head; officers decided to use the restraint chair in response to the perceived threat that plaintiff posed to himself. And when plaintiff actively and strenuously resisted the officers' efforts to place him in the restraint chairs, the officers' use of force increased. The need for security in the open holding area of the MCDC is obviously high. See Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992) (“A detention center, police station, or jail holding cell is a place ‘fraught with serious security dangers.' ”) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Plaintiff actively and forcefully resisted the officers' orders and initial use of minimal “force,” such as placing their hands on plaintiff's arm, and defendants justifiably used levels of force necessary to subdue and restrain plaintiff in light of his escalating physical resistance, and to quell the risk of danger plaintiff posed to officers, other individuals in the open holding area, and to himself.
Plaintiff's description of the incident differs from the officers in that it emphasizes the intensity of the officers' use of force, including alleging that the officers applied “pressure” to his limbs, neck, and windpipe, and that one of the officers used his “weight” to bend plaintiff over and hold him in an asphyxiated position to secure him to the restraint chair. Resp. 6-7, ECF 76. And plaintiff asserts this use of force was not proportional to the alleged crime he was arrested for, which plaintiff characterizes as a traffic stop. Id. at 7. But the videos plainly show that the officers were responding to plaintiff's violent and aggressive resistance once at the MCDC, and that the intensity of the physical force rose and fell with plaintiff's resistance. The officers' use of force was reasonable given the rapidly evolving and potentially dangerous situation that the officers faced. See Hyde, 23 F.4th at 870 (“As more officers joined the fray, they justifiably continued using intermediate force-the Taser and strikes on [plaintiff's] leg-because (i) [plaintiff] violently scuffled with the officers, (ii) the officers had not yet restrained [plaintiff], and (iii) the officers were forced to make split-second judgments-in circumstances that were tense, uncertain, and rapidly evolving.”) (simplified).
In Hyde, the Ninth Circuit found that while the officers' initial use of force was reasonable, the officers continued use of force after the plaintiff had been restrained with handcuffs and leg irons was unreasonable because the plaintiff “appeared exhausted” and no longer posed an immediate threat. Id. at 871 (“For two minutes, [officers] saw an exhausted [plaintiff] on his knees with both his hands and feet restrained. They should have recognized that [plaintiff] had effectively stopped resisting and posed no threat to the officers surrounding him.”). Here, however, the videos show that after plaintiff was similarly restrained by handcuffs and leg irons, he rolled away from the officers and began to act erratically by writhing around on the floor and striking his head in what officers interpreted as an attempt to cause self-harm. It was at this point that the officers decided to use the restraint chair to prevent plaintiff from harming himself. And the videos also show plaintiff strongly resisting the officers' attempt to secure him to the restraint chair. The situation, in other words, continued to evolve and present officers with critical decisions to make based on plaintiff's changing behavior.
As to the extent of plaintiff's injuries, plaintiff has not cited to or produced any medical records to support his claim that he was injured as a result of defendants' use of force. See Arpinv. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (affirming summary judgment in defendant's favor in part because plaintiff's “claim of injury [was] . . . unsupported as she [did] not provide any medical records to support her claim that she suffered injury as a result of being handcuffed.”). After the incident, medical staff at the MCDC assessed plaintiff for injuries to his neck and he was cleared. Rodriguez Decl., Ex. 1 at 6, ECF 62. The only other medical evidence in the record that the court could find is a letter from a medical provider dated January 17, 2023, which reflects generally “mild narrowing” and some arthritis in plaintiff's back, but nothing that suggests these conditions were caused by the incident at issue or the severity of the injuries that plaintiff alleges in the complaint.
Because the officers' use of force was reasonable under the circumstances, defendants are entitled to summary judgment on plaintiff's claims.
B. Qualified Immunity
Even if defendants were not entitled to summary judgment on the merits of plaintiff's claims, they would still be entitled to summary judgment under the doctrine of qualified immunity because defendants' conduct did not violate a clearly established constitutional right against the use of a restraint chair for a pretrial detainee exhibiting what officers perceived to be self-harming behavior, or the use of force in restraining a pre-trial detainee who is actively resisting being restrained in such a manner.
“The doctrine 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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal citation and quotation omitted). The doctrine is “an immunity from suit rather than a mere defense to liability.” Id. (internal citation and quotation omitted). “The purpose of qualified immunity is to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.' ” Mattos, 661 F.3d at 440 (quoting Pearson, 555 U.S. at 231). “Qualified immunity shields an officer from liability even if his or her action resulted from ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.' ” Id. (quoting Pearson, 555 U.S. at 231). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.' ” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 794 (9th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
A defendant is “entitled to qualified immunity if (1) the alleged conduct did not violate a constitutional right or (2) that right was not clearly established at the time of the alleged violation.” Melnik v. Dzurenda, 14 F.4th 981, 985 (9th Cir. 2021) (citing Wood v. Moss, 572 U.S. 744, 757 (2014)). Courts have discretion to address the questions in reverse order. Sampson v.Cnty. of Los Angeles by & through Los Angeles Cnty. Dep't of Child. & Fam. Servs., 974 F.3d 1012, 1018 (9th Cir. 2020).
The “ ‘clearly established' inquiry is a question of law that only a judge can decide.” Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017). “For a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate, such that every reasonable official, not just ‘a' reasonable official, would have understood that he was violating a clearly established right.” Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (simplified) (emphasis in original). “It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness of the defendants' actions was apparent in light of preexisting law.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002) (simplified).
The Supreme Court “has repeatedly told courts . . . not to define clearly established law at a high level of generality.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (quotation marks omitted). “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotation marks omitted).
Plaintiff has not cited to any case, and the court has not found any, where a court has previously held or suggested that either (1) the use of a restraint chair to subdue a pre-trial detainee observed in what officers believed at the time to be self-harming behavior is unconstitutional, or (2) the use of force to restrain an individual who is actively and forcefully resisting to such a chair is unconstitutional. See Brown v. Basznianyn, No. 4:21-cv-00050-DCB, 2023 WL 3098982, at *14 (D. Ariz. Mar. 29, 2023) (“Defendants' conduct of using the restraint chair, including bending Plaintiff forward to secure his legs and remove his handcuffs, even if it caused unconsciousness, did not violate a clearly established constitutional right of which a reasonable person would have known.”); Gracia v. Nanos, No. 4:20-cv-00451-LCK, 2023 WL 3726723, at *10 (D. Ariz. May 30, 2023) (“When there is evidence of a legitimate security need, and the absence of an intent to punish, the Ninth Circuit has held that the use of a restraint chair is not unconstitutional.”) (citing Dalluge v. Coates, 341 Fed.Appx. 310, 310-11 (9th Cir. 2009).
Plaintiff asserts that the officers “failed to follow the Restraint Chair Policy” and that a supervisory review concluded that the “use by staff [of the restraint chair] in this incident did not comply with the Multnomah County Sheriff's Office Use of The Restraint Chair.” Resp. 5, ECF 76. The supervisory reviews reflect that the primary criticism of the officers' actions was that they disengaged from plaintiff when he began to thrash violently on the floor, which led to the injury in plaintiff's mouth and the officers' use of the spit sock and the restraint chair. Event Report 2, ECF 62. The supervisors state that the officers should not have disengaged from plaintiff in the first instance; one supervisor noted that “the force could have ended earlier if different tactics and options were used,” specifically that the officers should have continued “sliding [plaintiff] into a cell” and left him in the cell with handcuffs. Id. That same supervisor's review, however, concluded that the officers “acted within MCSO policy and training.” Id. The supervisory reviews do not demonstrate that the incident rises to a constitutional violation. See Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”). The conclusion here that the officers are entitled to qualified immunity is based on plaintiff's active and continuing resistance, the rapidly evolving set of circumstances that the officers faced in light of plaintiff's conduct, and the threat plaintiff's conduct posed to security at the MCDC, and the safety of the officers, other individuals at MCDC, and to plaintiff himself. See Sheridan v. Trickey, No. 3:10-cv-06034-AC, 2010 WL 5812678, at *9 (D. Or. Dec. 16, 2010), report and recommendation adopted, No. 3:10-cv-06034-AC, 2011 WL 588769 (D. Or. Feb. 10, 2011) (finding that an officer's “error in judgment, made as a split-second response to an escalating situation, does not deprive [the officer] of qualified immunity because it was based on a reasonable belief that his actions were legal”).
In sum, even assuming the officers violated plaintiff's constitutional rights, the law was not “clearly established” in these circumstances to overcome the application of qualified immunity to the officers' conduct here.
C. Monell Claim
To the extent plaintiff's complaint could be broadly read as asserting a claim against Multnomah County under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), defendants are entitled to summary judgment on any such claim. See Mot. Summ. J. 14-15, ECF 61. Under Monell, Multnomah County may be liable for a constitutional violation under 42 U.S.C. § 1983 based on: “(1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). A plaintiff also “may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).
A “policy” is a “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). A “custom” is a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). “The custom must be so ‘persistent and widespread' that it constitutes a ‘permanent and well settled . . . policy.' ” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id.
A plaintiff also must establish deliberate indifference, for example, that “the policy amounted to deliberate indifference of a constitutional violation.” Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). “ Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997) (simplified). Unless there is a single violation with a “highly predictable consequence,” id. at 398, there must be a pattern of similar constitutional violations to demonstrate deliberate indifference. Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bryan Cnty., 520 U.S. at 409).
Plaintiff has not produced any evidence of any policy or custom, or that a municipal actor acted with deliberate indifference to a constitutional violation, to sustain a Monell claim. Defendants are therefore entitled to summary judgment on any such claim.
D. Doe Defendants
Finally, defendants are entitled to summary judgment on any claim plaintiff asserts against any as-yet-to-be-named “Doe” defendants. In the interests of justice, the court previously allowed plaintiff to file an amended complaint that named Lauren Baker, Brian Beardsley, Barrett Taylor, and Kyle Tyson as defendants long after the deadline to name parties had passed. See Order (April 7, 2023) 2-3, ECF 50. At that time, the court explained why no other amendment to the pleadings would be allowed to name further “Doe” defendants-primarily because plaintiff had failed to comply with numerous previous orders regarding amended pleadings and other matters. See id. Not only has the time to amend the pleadings and add parties long ago passed, any claims against other officers involved in the alleged excessive force incident would fail for the same reasons described above: the use of force was reasonable under the circumstances and the officers would be entitled to qualified immunity.
RECOMMENDATIONS
Defendants' Motion for Summary Judgment (ECF 61) should be granted.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, December 29, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.