Opinion
6:22-cv-01522-MK
11-20-2023
MUHSIN SHARIF, Plaintiff, v. CITY OF EUGENE, ALEC SWINDLING, and JOHN AND JANE DOES 1-3, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff Muhsin Sharif (“Plaintiff”) filed this action on October 10, 2022, alleging a violation of his Fourth Amendment rights against defendants City of Eugene, Officer Alec Swindling, and John and Jane Does 1-3 (collectively, “Defendants”). ECF No. 1. Defendants filed a Motion for Summary Judgment or Judgment on the Pleadings on August 29, 2023. ECF No. 12. Plaintiff also filed a Motion for Partial Summary Judgment on October 2, 2023. ECF No. 30. For the reasons below, Defendants' Motion (ECF No. 12) should be granted. Plaintiff's Motion (ECF No. 30) should be denied.
BACKGROUND
This case arises out of a November 30, 2020 encounter between Plaintiff and Eugene Police officers. After receiving a call indicating that Plaintiff had been involved in a domestic violence dispute and violated a restraining order, Eugene Police officers located and pursued Plaintiff for several blocks. After officers pursued Plaintiff into a parking lot, Plaintiff ceased fleeing, turned around, and attempted to use a small knife against Officer Trullinger. Plaintiff was subsequently shot by Officers Trullinger and Rankin. Soon after Plaintiff was shot, Officer Swindling arrived on the scene and ordered Plaintiff to drop the 4-inch knife that he held in his right hand so that he and other officers could render aid, bring in paramedics, and safely take Plaintiff into custody. Swindling Decl. ¶ 7, ECF No. 16. Plaintiff responded that he was unable to drop the knife because he could not move his right arm, and that the officers should take it from him. After Officer Swindling and the other officers failed to persuade Plaintiff to drop the knife, Officer Swindling fired his Taser at Plaintiff in dart mode once, causing Plaintiff to drop the knife. Id. at ¶ 4. Once Plaintiff was disarmed, the officers immediately began to render aid to Plaintiff and allowed paramedics to safely attend to his injuries.
Plaintiff sued Officers Rankin and Trullinger in the U.S. District Court of Oregon, alleging an excessive use of force. Sharif v. Rankin, 6:21-cv-00310-HZ (July 5, 2022). Judge Hernandez granted summary judgment for Officers Rankin and Trullinger on the grounds that the officers were entitled to qualified immunity because there was no excessive force and because the law would not have informed any officer that deadly force was unreasonable under those circumstances. Id.; Declaration of Ben Miller in Support of Defendants' Motion for Summary Judgement (“Miller Decl.”) Ex. 8 (“Opinion & Order”) at 7-14, ECF No. 13. Plaintiff did not appeal that judgment.
Plaintiff now brings this action alleging that Officer Swindling's use of a Taser violated his rights secured by the Fourth Amendment. Compl., ECF No. 1. Plaintiff's First Amended Complaint (“FAC”) alleges that Officer Swindling used unnecessary and excessive force against Plaintiff while he was incapacitated and grievously wounded, having been shot twice and pinned under a police patrol car. FAC at 1-2, ECF No. 5. Plaintiff also alleges that three other unknown officers violated Plaintiff's rights under the Fourth Amendment and requests damages in the amount of $100,000. FAC at 5.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
As an initial matter, Defendant City of Eugene argues it is entitled to judgment on the pleadings because Plaintiff alleges no claims against the City of Eugene. Plaintiff provides no response to this argument in his briefing. Based on the record, judgment on the pleadings should be granted for Defendant City of Eugene.
Individual Defendants argue that they are entitled to summary judgment on Plaintiff's Fourth Amendment claim because they are entitled to qualified immunity. Plaintiff argues that he is entitled to summary judgment on his Fourth Amendment claim because (1) Defendants violated clearly established law and are not entitled to qualified immunity; and (2) there is no issue of fact as to whether Defendants violated Plaintiff's Fourth Amendment rights. For the reasons discussed below, the Court finds that individual Defendants are entitled to qualified immunity on Plaintiff's Fourth Amendment claim.
To determine whether a defendant is entitled to qualified immunity, the Court considers two questions: (1) whether the defendant violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). As the Ninth Circuit recently explained in Isayeva v. Sacramento Sheriff's Department, 872 F.3d 938, 945 (9th Cir. 2017), an officer may be denied qualified immunity at summary judgment in a Section 1983 case “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.” Id. at 945 (internal quotations omitted).
The Ninth Circuit has held that using a Taser “in dart-mode constitute[s] an intermediate, significant level of force that must be justified by the governmental interest involved.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Here, Defendants have provided clear evidence of a governmental interest in addressing Plaintiff's urgent need for medical care. Defendant have also provided evidence that Plaintiff had attempted to use a knife on Officer Trullinger, and that Plaintiff communicated to Officer Swindling that he was unable to drop his knife. Swindling Decl. ¶ 4. Even after Plaintiff had been shot, Officer Swindling observed Plaintiff move his right arm while firmly gripping the knife. Id. Following repeated commands to drop the knife, and after Plaintiff stated that he could not drop the knife, Officer Swindling used his Taser in dart mode with the intent to disarm Plaintiff so that he and the other nearby officers could begin to render aid. Officer Swindling was not aware of the extent of Plaintiff's injuries and still considered him to be a threat. Swindling Decl. ¶¶ 4-5. On this record, Defendants have provided evidence that Officer Swindling's use of force was justified by the governmental interest involved and did not violate a clearly established right of which a reasonable officer would have known. Bryan v. MacPherson, 630 F.3d at 826.
While Plaintiff raises evidentiary issues and disputes Defendants' characterization of the relevant events, Plaintiff has failed to show an issue of fact as to whether any individual Defendant violated a right that was clearly established at the time of the incident. See Isayeva, 872 F.3d at 945. In his Response, Plaintiff first argues that Defendant Swindling's declaration “should be generally disregarded” by the Court because it refers to Officer Swindling's personal beliefs, contains hearsay, and is inconsistent with the factual findings made by this Court in Sharif v. Rankin, 6:21-cv-00310-HZ (July 5, 2022). Pursuant to Local Rule (LR) 56-1(b) and LR 7-1(a), Plaintiff was required to confer with Defendants regarding these objections and failed to do so.
In the Ninth Circuit, a court may consider evidence on a motion for summary judgment that, while not necessarily admissible in their submitted form, “could later be provided in an admissible form at trial.” J & J Realty Holdings v. Great Am. E & S Ins. Co., 839 Fed.Appx. 62, 65 (9th Cir. 2020) (citing JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016); see also Criminal Prods., Inc. v. Behaki, No. 17-00157-SI, 2018 WL 2875892, at *2 (D. Or. June 11, 2018) (“When evidence is not presented in an admissible form in the context of a motion for summary judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence”); Kimmons v. First Transit, Inc., No. 3:21-cv-00768-SB at *104 (D. Or. Sep. 8, 2023) (holding same).
Here, the Court is satisfied that the alleged hearsay evidence in Officer Swindling's declaration is not offered for the truth of the matter asserted but rather to show knowledge and effect on the listener. This evidence could therefore be provided in an admissible form at trial and can be considered on a motion for summary judgment. J & J Realty Holdings, 839 Fed.Appx. at 65. While Plaintiff argues that Officer Swindling's declaration contradicts Judge Hernandez's opinion in Sharif v. Rankin, the Court disagrees. There, the Court observed in a footnote that it was not clear from Officer Trullinger's in-car video recording whether Plaintiff was yelling “I'll kill you” to Officer Trullinger. 6:21-cv-00310-HZ at n.2. Here, Officer Swindling presents evidence regarding threats from Plaintiff that were broadcast over the police dispatch system before Officer Swindling arrived on the scene that were not at issue in Judge Hernandez's decision.
Plaintiff also argues that Defendants are not entitled to qualified immunity because at the time of the incident it was clearly established law in the Ninth Circuit that deploying even intermediate force against an incapacitated and unarmed individual is prohibited under the Fourth Amendment. ECF No. 29 at 14. Plaintiff cites the District of Oregon case Kaady v. City of Sandy, 2008 WL 5111101 (D. Or. Nov. 26, 2008), and a string of District Court cases signaling agreement with Kaady, to support this argument.
In Kaady, an officer was denied qualified immunity after he deployed a Taser on a claimant, Kaady, who had been found sitting naked on the side of the road with his hands in his lap after his truck collided with a series of other vehicles and caught on fire. The two law enforcement officers who first contacted the claimant testified that Kaady appeared to be unarmed. Kaady, 2008 WL 5111101 at *4. The officers also noticed that Kaady appeared to be seriously injured, with visible burns on his body, and showed his hands when ordered to do so. Id. at *8. The officers informed Kaady that he needed medical help and asked him to lie on his stomach on the pavement, and Kaady refused. Kaady was then asked to lie down on a patch of grass and said yes but remained seated. One officer then warned Kaady that he would be shot with a Taser. In all, Kaady was Tased three times before getting up. Id.
Plaintiff's attempt to analogize this case to Kaady misreads the evidence of record. Here, Plaintiff alleges that he was incapacitated, prone, and immobile at the time Officer Swindling deployed his Taser to force Plaintiff to drop his knife. ECF No. 31. The record is clear, however, that Officer Swindling was aware that Plaintiff had attempted to use a knife on Officer Trullinger, prompting other officers to use deadly force against Plaintiff just prior to Officer Swindling's encounter with Plaintiff. Swindling Decl. ¶ 4. Plaintiff communicated to Officer Swindling that he was unable to drop the knife, and Officer Swindling used his Taser with the intent to disarm Plaintiff so that he and the other nearby officers could begin to render aid and safely bring in paramedics. Id. at ¶ 7. Plaintiff was awake, alert, and armed with a knife, and had previously threatened that he was going to kill police officers. It was under these circumstances Officer Swindling deployed his Taser. Swindling Decl. ¶ 4. Based on these circumstances, this case is clearly distinguished from Kaady, which involved an unarmed individual who was Tased three times.
Taken in the light most favorable to Plaintiff, the evidence before the Court does not show that Officer Swindling's conduct violated a constitutional right that was clearly established at the time of the incident such that a reasonable officer would have understood his conduct to be unlawful in that situation. Isayeva, 872 F.3d at 945. Plaintiff has not pointed to any clearly established law that would have informed any officer that the use of a Taser to disarm Plaintiff, a wounded individual wielding a knife who had not been searched for other weapons, was unreasonable. Under established Ninth Circuit precedent, a reasonable officer would have understood Officer Swindling's conduct to be lawful at the time he deployed his Taser. Isayeva, 872 F.3d at 945. None of the cases cited by Plaintiff in addition to Kaady describe scenarios involving an armed claimant who had very recently threatened to use a weapon against a police officer. The individual Defendants' motion for summary judgment should be granted.
RECOMMENDATION
For the reasons above, Defendant City of Eugene's Motion for Judgment on the Pleadings (ECF No. 12) should be granted. The remaining individual Defendants' Motion for Summary Judgment (ECF No. 12) should be granted. Plaintiff's Motion for Summary Judgment (ECF No. 30) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).