Opinion
Case No. 3:17-cv-01295-YY
03-20-2020
JUSTIN STAUFFER, Plaintiff, v. CITY OF NEWBERG, NATHAN JAMES, personally, BRIAN CASEY, personally, ERIC STONE, personally, PAUL RAPET, personally, CARL BUSSE, personally, and CHRIS RASMUSSEN, personally, Defendants.
FINDINGS AND RECOMMENDATIONS :
Plaintiff Justin Stauffer brings this action against defendants City of Newberg ("City"), Newberg Police Chief Brian Casey, Sergeant Carl Busse, Corporal Chris Rasmussen, Officer Paul Rapet, former Officer Eric Stone (collectively "City defendants"), and Officer Nathan James. Stauffer alleges two causes of action—one for federal law claims and one for state law claims. In his first cause of action, Stauffer asserts, pursuant to 42 U.S.C. § 1983, a Fourth Amendment claim of excessive force (First Claim) against Busse, Rasmussen, Rapet, James, and Stone, and a Monell claim against Chief Casey and the City (Second Claim). First Am. Compl. ("FAC") 4-5, ECF #35. In his second cause of action, Stauffer asserts a state law claim of negligence against all defendants (First Claim), as well as a state law battery claim against Busse, Rasmussen, Rapet, James, and Stone (Third Claim). Id. at 5-6. This court has federal question jurisdiction over the federal law claims under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).
The Civil Rights Act, 42 U.S.C. § 1983, "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal citation and quotation marks omitted). Section 1983 liability "arises only upon a showing of personal participation by the defendant," acting under color of state law, that deprived the plaintiff of a constitutional or federal statutory right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The amended compliant omits a second claim for relief in the second cause of action.
City defendants have filed a motion for summary judgment on all claims related to them. ECF #62. James has filed a motion for summary judgment as to Stauffer's Fourth Amendment excessive force claim. ECF #67. Stauffer has filed a motion for partial summary judgment on the excessive force claim and the common law negligence and battery claims. ECF #88. For the reasons discussed below, City defendants' motion should be GRANTED IN PART and DENIED IN PART, and James and Stauffer's motions should be DENIED.
BACKGROUND FACTS
On September 6, 2015, Stauffer "learned that a good friend had died," and the "sad news prompted" him to drink that evening. Stauffer Decl. ¶¶ 2, 4, ECF #89. After having dinner, Stauffer and a friend went to a bar, Voodoo Martini, where Stauffer believes he consumed two beers. Warren Decl., Ex. 1, at 78:5-6, 12-13, 21-24, ECF #72-1. Stauffer and his friend then went to the First Street Pub, where Stauffer believes he had one or "maybe two" beers. Id. at 79:3-4, 10-11. Stauffer also had taken "medications that are not meant to be combined with alcohol," which "greatly intensified their effects" and caused him to become "very intoxicated." Stauffer Decl. ¶¶ 5-6, ECF #89.
While at the First Street Pub, Stauffer "approached at least two different female patrons," who "separately informed" the bartender, Jon Tvetan, that "Stauffer had made unwanted sexual advances towards them and that they felt uncomfortable in his presence." Tvetan Decl. ¶ 5, ECF #68. Tvetan told "Stauffer that he was no longer permitted to stay at the First Street Pub," but "Stauffer refused to leave." Id. at ¶ 6; see also Stauffer Decl. ¶ 6, ECF #89. Stauffer continued to refuse Tvetan's "requests for him to leave" the establishment "for more than an hour." Tvetan Decl. ¶ 6, ECF #68. Tvetan warned Stauffer that he would call the police if Stauffer did not leave the pub, and Stauffer responded, "go ahead." Warren Decl., Ex. 1, at 83:1-3, ECF #72-1. Tvetan "called 911, and asked for police to assist in removing . . . Stauffer from the First Street Pub." Tvetan Decl. ¶ 7, ECF #68.
At approximately 1:21 a.m., Officers Stone, Rapet, Busse, and James "responded to a call from dispatch reporting that there was a disturbance at the First Street Pub in Newberg and there was a male who refused to leave the bar after being cut off and told to leave." Busse Decl. ¶ 4, ECF #64; see also Rapet Decl. ¶ 4, ECF #66; Stone Decl. ¶ 5, ECF #70; James Decl. ¶ 4, ECF #69. Dispatch reported that "the individual was making extreme sexual advances towards women and men in the bar" and described him as "wearing a white button-up shirt and khaki shorts." Busse Decl ¶ 4, ECF #64.
The officers "arrived at the First Street Pub at approximately 1:24 a.m." Id. at ¶ 5. Stone "went to the north side of the business to watch the back door," while Rapet, Busse, and James went through the front door of the pub. Stone Decl. ¶ 6, ECF #70; Busse Decl. ¶ 5, ECF #64.
As Stone was watching the back door, he "saw an adult male wearing a white button-up shirt and khaki shorts exit the back door." Stone Decl. ¶ 7, ECF #70. Stone "approached the individual, later identified as [Stauffer], and told him, 'I need to talk with you about what happened inside the bar.'" Id. at ¶ 8; Stauffer Decl. ¶ 8, ECF #89. Stone asked Stauffer if he had any identification, to which Stauffer responded, "no I don't, I'm going home," and walked away. Stone Decl. ¶ 8, ECF #70; Stauffer Decl. ¶ 9, ECF #89. Stone warned Stauffer that he was not free to leave, but Stauffer continued to walk away. Stone Decl. ¶ 9, ECF #70; see also Stauffer Decl. ¶ 9, ECF #89 (conceding that Stone "may have said I was not free to leave and that he needed to speak to me"). Stone "radioed to dispatch that [Stauffer] was walking away from him and would not stop." Stone Decl. ¶ 9, ECF #70. Busse, Rapet, and James heard Stone's radio communication and headed to the back door of the pub to assist. James Decl. ¶ 5, ECF #69; Busse Decl. ¶ 6, ECF #64; Rapet Decl. ¶ 6, ECF #66.
Stone claims that, after giving Stauffer multiple directions to stop, he "approached and grabbed [Stauffer]'s right wrist and elbow" and "directed" Stauffer to a nearby wall. Stone Decl. ¶ 11, ECF #70. Stone contends that Stauffer thereafter spun toward him and tried to pull away. Id. Stone believed that, "based on [Stauffer]'s actions in turning towards [him], Stauffer presented a threat to [his] safety." Id. at ¶ 12. Therefore, Stone "locked [his] arms around [Stauffer]'s waist and tripped him." Id. Stone explained that, based on "training and experience, it is safer and easier to control a resisting subject if they are taken to the ground." Id.
Stauffer claims that Stone grabbed his arm and "slammed [him] into the wall." Stauffer Decl. ¶ 11, ECF #89. Thereafter, Stone tripped him and took him to the ground, where he "ended face up with [Stone] on top of [him]." Stauffer Decl. ¶ 11, ECF #70.
Rapet, James, and Busse exited the back door of the pub around the time Stone was taking Stauffer to the ground. James Decl. ¶ 6, ECF #69; Rapet Decl. ¶ 7, ECF #66; Busse Decl. ¶ 7, ECF #64. Stauffer was lying on his back with Stone on top of his torso. James Decl. ¶ 7, ECF #69; Stauffer Decl. ¶ 11, ECF #89. The officers "ran to aid Officer Stone in taking [Stauffer] into custody." Busse Decl. ¶ 7, ECF #64; Rapet Decl. ¶ 7, ECF #66. Rapet grabbed Stauffer's right wrist, James "went towards[] Stauffer's head," and Busse "attempted to restrain [Stauffer]'s legs." Rapet Decl. ¶ 7, ECF #66; James Decl. ¶ 7, ECF #69; Busse Decl. ¶ 8, ECF #64.
The parties disagree on whether Stauffer complied with the officers' commands and whether he was physically resisting the officers' efforts to handcuff him. Rapet alleges that Stauffer ignored his commands to roll onto his stomach, repeatedly shouted "I'm not resisting," and thwarted Rapet's efforts to roll him onto his stomach by "pulling [his arm] back while keeping his body tense and rigid." Rapet Decl ¶ 8, ECF #66. James contends that Stauffer "refuse[d] to follow police commands," used "both static and active resistance to stay on his back," and applied "his physical strength to overcome" Rapet and Stone's "efforts to handcuff him." James Decl. ¶ 7, ECF #69. Busse claims that when he commanded Stauffer to get onto his stomach, Stauffer "responded that he was not resisting but refused to follow commands . . . and did not make any effort to comply with [the officers'] directions." Busse Decl. ¶ 10, ECF #64. Stone asserts that "[d]espite multiple officers trying to assist [him with the arrest], [Stauffer] continued to struggle with [the officers] and would not turn over onto his stomach as he was told to do so by Officers Rapet and James." Stone Decl. ¶ 13, ECF #70. Stauffer agrees that "[s]omeone told [him] to cooperate and not resist[,]" but he responded that "was cooperating and not resisting." Stauffer Decl. ¶ 14, ECF #89. Stauffer asserts that he "was not resisting and was overpowered." Id.
While the officers were trying to handcuff Stauffer, James used his "lightweight plastic police department issued flashlight to deliver two focused blows to Mr. Stauffer's head." James Decl. ¶ 8, ECF #69. James "was aware that using too much force . . . could cause injury," so he "reduced the amount of force of the strikes" to what he "approximated was 60 percent of [his] maximum strength" to "limit the chance of injury" to Stauffer's head. Id. at ¶¶ 8-9. James "used the lightweight plastic flashlight . . . because it was already in [his] hand, and because [he] needed to act quickly in order to handcuff" Stauffer and prevent Stauffer or the officers from being injured in the struggle. Id. at ¶ 8. James "delivered the focused blows to [the side of] Stauffer's head because it was the region most accessible to [him]self," and "because [he] could not safely attempt focused blows to another part of[] Stauffer's body without risking striking another officer." Id. at ¶ 9.
After delivering the first two strikes, James paused "to determine if the focused blows had achieved their desired outcome in gaining[] Stauffer's compliance." Id. at ¶ 10. Realizing "the strikes had no effect whatsoever," James struck Stauffer with the flashlight "a few more times in the same manner and location," at what he "approximated was 80 percent of [his] maximum strength." Id. According to James, Stauffer "said and did nothing to suggest he even felt the [second round of] strikes." Id. at ¶ 11. James contends he was "finally able to grasp and control Mr. Stauffer's left arm," which allowed "Stone [to] successfully handcuff[] Stauffer." Id. "[S]oon thereafter Officers Stone and Rapet completed . . . handcuffing . . . Stauffer." Id.
After the officers handcuffed Stauffer, Rapet "rolled him onto his side, placed him into a sitting position and then assisted him to his feet." Rapet Decl. ¶ 9, ECF #66. James tried to speak with Stauffer, but Stauffer "gave circuitous answers and stated that [James] was trying to argue with a 'drunk' person." James Decl. ¶ 12, ECF #69.
James requested that "EMS personnel check on Mr. Stauffer's well-being." Id. Rasmussen arrived on the scene after Stauffer "was already in custody, handcuffed and leaning against a wall." Rasmussen Decl. ¶ 4, ECF #65. Rasmussen "did not play any role in the decision to take [Stauffer] into custody," "did not use any force on [Stauffer,] and did not observe any force being used on [Stauffer]." Id.
EMS personnel arrived at 1:46 a.m. Freud Decl., Ex. 2, at 1, ECF #71-2. At that time, Stauffer was in handcuffs sitting against a wall. Id. at 2. EMS personnel observed that Stauffer was "not injured" and "in no distress." Id. Stauffer "denied neck and back pain" but complained that "his elbow hurt." Id. Stauffer further stated that he did "not need to go to the hospital" and "just wanted to go home." Id. EMS personnel examined Stauffer and observed that he had a "small abrasion [on his] left cheek," but he was "able to open [his] mouth [with] no pain." Id. EMS further noted that Stauffer had a "small abrasion .5cm on [his right] elbow and [right and left] knee[s]," but the remainder of the exam was "unremarkable." Id. EMS placed a bandage on Stauffer's right elbow. Id. After Stauffer "was medically evaluated and treated by [the] medics, he was transported to the Newberg Police Department." Busse Decl. ¶ 14, ECF #64.
Approximately 30 minutes after his arrest, Stauffer provided a breath sample at the police station showing his blood alcohol content was .184. Id. at ¶ 15; Berman Decl., Ex. 4, at 22, ECF #90-4. After processing, Stauffer repeatedly asked the officers why they did not just cite him and let him go home. Warren Decl., Ex. 2, at 115:21-24, ECF #72-1. Stauffer was "very angry" and banged the cinderblock wall of his holding cell with his hand and with the back of his head "trying to get [the officers] to answer [his] questions." Id. at 116:1-13. James, Stone, and Rapet entered Stauffer's cell, and James handcuffed Stauffer's arms in front of his body. James Decl., ¶ 13, ECF #69. Stauffer tried to pull his hands apart from each other, so James attached Stauffer's handcuffs to the bench he was sitting on with another set of handcuffs. Id. Soon thereafter, Stauffer resumed banging his head against the wall. Id. However, "[a]t no time while he was in the jail did . . . Stauffer complain of a head injury." Id. Stauffer was subsequently transported to the Yamhill County Jail. Busse Decl. ¶ 16, ECF #64. He was released on his own recognizance later in the day under a pretrial release agreement. Freud Decl., Ex. 4, ECF #71-4.
On the day Stauffer was arrested, James prepared an affidavit explaining why there was probable cause to arrest Stauffer for the crimes of resisting arrest, criminal trespass in the second degree, and interfering with a peace officer. James Decl. ¶ 14, ECF #69; Freud Decl., Ex. 3, ECF #71-3. On September 18, 2015, the date of Stauffer's arraignment, Yamhill County Circuit Court Judge Cynthia Easterday, found "probable cause exists to believe the arrestee committed the crime(s)." Freud Decl., Ex. 3, at 2, ECF #71-3.
Stauffer was ultimately charged with criminal trespass in the second degree (O.R.S. 164.245) and interfering with a peace officer (O.R.S. 162.247). Freud Decl., Ex. 5, ECF #71-5. As part of a plea bargain and deferred sentencing agreement, Stauffer pleaded guilty to criminal trespass in the second degree on February 9, 2016. Freud Decl., Ex. 6, ECF #71-6; Freud Decl., Ex. 7, ECF #71-7. Stauffer filed this action on August 21, 2017. Compl., ECF #1.
STANDARDS
Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if 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 "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citing F.R.C.P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A "scintilla of evidence" or "evidence that is merely colorable or not significantly probative" is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 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, 198 F.3d at 1134 (citation omitted).
FINDINGS
I. Preliminary Issues
A. Police Reports
James objects to Stauffer's introduction of the underlying police reports because they contain hearsay. James Reply 2, ECF #91; James Resp. 2, ECF #96. "It is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not." United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983) (citations omitted). This court "is capable of independently resolving conflicts in the record and questions of admissibility, and therefore declines to strike the evidence at issue." Cascadia Wildlands v. Bureau of Land Mgmt., No. 6:12-cv-00095-AA, 2012 WL 6738275, at *3 n.6 (D. Or. Dec. 21, 2012); see also Barren v. Robinson, 668 F. App'x 726, 727 (9th Cir. 2016) (finding district court did not abuse its discretion in admitting an arrest report because it was admissible under the "regularly conducted activity" exception to the hearsay rule) (cited pursuant to Ninth Circuit Rule 36-3).
B. Stone's Resignation and Plea Bargain
City defendants seek to strike the portion of Stone's deposition where he answers questions regarding his resignation from the police department as the result of a plea bargain involving the harassment of a family member. See Berman Decl., Ex. 7, at 3, ECF #90-7. Stauffer offers this evidence without any explanation for how it is relevant.
The evidence is not relevant to establish plaintiff's excessive force claim, which turns on whether the officer's actions were "'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989); see infra, Section II; see also Robinson v. City of St. Charles, Mo., 972 F.2d 974, 976 (8th Cir. 1992) (finding that officers' personnel files were not admissible for excessive force claim); Chavez v. Albuquerque, 402 F.3d 1039 (10th Cir. 2005) (holding prior bad acts are not relevant or admissible against an officer with respect to excessive force claims).
Moreover, to the extent Stauffer offers this evidence to prove his battery claim, he has not even begun to satisfy the requirements of Federal Rule of Evidence 404(b). Evidence of other bad acts is not admissible except to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). For other bad act evidence to be admissible under Rule 404(b), (1) there must be sufficient proof for the jury to find that the defendant committed the other act; (2) the other act must not be too remote in time; (3) the other act must be introduced to prove a material issue in the case; and (4) the other act must, in some cases, be similar to the offense charged. Duran v. City of Maywood, 221 F.3d 1127, 1132-33 (9th Cir. 2000). "Even if all four conditions are met, the evidence may still be excluded if under Rule 403, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." Id. at 1133 (footnote omitted). Here, Stauffer offers no details regarding the harassment, other than that the offense involved a family member. Berman Decl., Ex. 7, at 3, ECF #90-7. Because Stauffer has failed to satisfy the factors for admissibility, the evidence is stricken.
C. Monell Claim
Stauffer concedes that his Monell claim fails. Pl. Resp. City Newberg Mot. Summ. J. 2, ECF #87 ("Pl. Resp. City"). Accordingly, the second claim in the first cause of action should be dismissed.
D. Stauffer's Newly Raised Claims
In his Response (ECF #87), as well as his Motion for Partial Summary Judgment (ECF #88), Stauffer asserts for the very first time that Busse, Stone, and Rapet are liable for failing to intervene when James was striking his head with a flashlight. Stauffer also newly alleges that James is liable under a theory of negligence per se because Commander Bolek found James' flashlight strikes out of compliance with the Newberg Police Department's use of force policy. Pl. Mot. Partial Summ. J. 5-6, ECF #88; Berman Decl., Ex. 8, ECF #90-8.
Because "summary judgment is not a procedural second chance to flesh out inadequate pleadings," Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006), courts will not grant or deny summary judgment based on unpled theories or claims unless doing so would cause no prejudice to the opposing party. See Pickern v. Pier I Imports (U.S.), Inc. 457 F.3d 963, 969 (9th Cir. 2006). Further, a complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quotation omitted).
Stauffer's pleadings fail to allege any facts that gave defendants notice he was asserting claims premised on theories of negligence per se and failure to intervene. See Compl., ECF #1; FAC, ECF #35. Stauffer "might have proceeded by filing a timely motion to amend the [amended] complaint. However, [Stauffer] did not amend the complaint to include more specific allegations." Pickern, 457 F.3d at 969. The deadline for amending pleadings passed on July 2, 2018. Scheduling Order, ECF #32. Stauffer has not shown good cause for modifying the scheduling order. F.R.C.P. 16(b)(4). Moreover, Stauffer did not raise these new claims until almost five months after the close of discovery, and defendants would be prejudiced if they had to defend against the claims without the benefit of conducting discovery. Accordingly, Stauffer's untimely claims, to the extent he has even properly raised them in his motion for summary judgment, should be denied. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009) ("[O]ur precedents make clear that where, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court.") (citations omitted).
E. James—Personal Capacity
James contends he is entitled to summary judgment because Stauffer has sued him only in his official capacity. James Mot. Summ. J. 9, ECF #67. James argues that although the caption of the Amended Complaint states "Nathan James, Personally," Stauffer "has not alleged a single fact in his Amended Complaint that . . . James was acting in his individual capacity." Id. (citing FAC ¶¶ 1-14, ECF #35). James contends that "[a] government employee acting in his official capacity is not a 'person' under § 1983." Id. (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983").
Section 1983 applies to "[e]very person" acting under the color of state law. 42 U.S.C. § 1983. "The term 'person[]' encompasses state and local officials sued in their individual capacities, private individuals and entities which acted under color of state law, and local governmental entities." Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 995-96 (N.D.Cal. 1996) (citing 1 Martin Schwartz and John Kirklin, Section 1983 Litigation: Claims Defenses and Fees, § 5.2 (2d ed. 1991)).
"[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Hafer v. Melo, 502 U.S. 21, 25 (1991) (citations and quotations marks omitted). "For this reason, when both an officer and the local government entity are named in a lawsuit and the officer is named in official capacity only, the officer is a redundant defendant and may be dismissed." Luke v. Abbott, 954 F. Supp. 202, 203 (C.D. Cal. 1997).
"Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, on the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Hafer, 502 U.S. at 25 (citations and quotations marks omitted). "For an individual capacity suit under § 1983, [a plaintiff] must allege personal participation in the alleged constitutional violation on the part of the individual to subject that person to individual liability." Raymond v. Cty. of Kauai, No. CV 15-00212 ACK-RLP, 2017 WL 2815059, at *7 (D. Haw. June 26, 2017) (citing Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) ("In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation.")).
Here, Stauffer named James in his personal capacity in the caption of the Amended Complaint. "[W]here the plaintiff fails to specify in the body of the complaint the capacity in which suit is brought against the defendants, . . . what is, and is not, expressly stated in the caption controls." Shoshone-Bannock Tribes v. Fish & Game Comm'n, Idaho, 42 F.3d 1278, 1285 (9th Cir. 1994); see also Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) ("We also have presumed that officials necessarily are sued in their personal capacities where those officials are named in a complaint, even if the complaint does not explicitly mention the capacity in which they are sued."). Moreover, in the body of the Amended Complaint, Stauffer alleges that James "made multiple focused blows to the head and neck while [he] was on the ground and on his back." FAC ¶ 9, ECF #35. Thus, Stauffer has sufficiently alleged that James personally participated in the alleged constitutional violation. Because it is clear that Stauffer brings this action against James in his personal capacity, James' motion to dismiss on this basis should be denied.
II. Excessive Force
The parties have filed cross-motions for summary judgment on Stauffer's Fourth Amendment claim of excessive force. Pl. Mot. Partial Summ. J. 6-12, ECF #88; City Def. Mot. Summ. J. 12-22, ECF #62; James Mot. Summ. J. 9-18, ECF #67. As discussed below, genuine issues of material fact preclude granting summary judgment on this claim.
A. Relevant Law
Under the Fourth Amendment, "the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397 (quoting Scott v. United States, 436 U.S. 128, 137-139 (1978)). "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). "Stated another way, [the court] must 'balance the amount of force applied against the need for that force.'" Bryan v. MacPherson, 630 F.3d 805, 823-24 (9th Cir. 2010) (quoting Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)).
The court's analysis involves three steps. Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011). First, the court "must assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted." Id. (citations and quotation marks omitted). "[E]ven where some force is justified, the amount actually used may be excessive." Id. (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). Second, the court evaluates the government's interest in the use of force. Id. (citing Graham, 490 U.S. at 396). Finally, the court balances "the gravity of the intrusion on the individual against the government's need for that intrusion." Id. (quoting Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)).
"The strength of the government's interest in the force used is evaluated by examining three primary factors: (1) whether the suspect poses an immediate threat to the safety of the officers or others, (2) the severity of the crime at issue, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight." Glenn, 673 F.3d at 872 (quoting Graham, 490 U.S. at 396) (quotation marks omitted). These factors are not exclusive. Id. (citing Bryan, 630 F.3d at 826). The court "examine[s] the totality of the circumstances and consider[s] 'whatever specific factors may be appropriate in a particular case[.]'" Id. (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994)). "Other relevant factors include the availability of less intrusive alternatives to the force employed, whether proper warnings were given and whether it should have been apparent to officers that the person they used force against was emotionally disturbed." Id. (citing Bryan, 630 F.3d at 831; Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001). However, officers "need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct [the court] identif[ies] as reasonable." Id. at 876 (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). The "most important" factor is whether the individual posed an "immediate threat to the safety of the officers or others." Id. at 872 (citing Bryan, 630 F.3d at 826 (internal quotation marks omitted)).
"The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Courts must allow "for the fact that police officers are often forced to make split- second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 397. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Id. at 396 (citation and quotation marks omitted).
"Because the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (internal quotations and citations omitted); see also Santos, 287 F.3d at 853 ("police misconduct cases almost always turn on a jury's credibility determinations"). "But, even though reasonableness traditionally is a question of fact for the jury . . . defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances." Henrich, 39 F.3d at 915 (citations omitted).
Finally, "[t]he 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) (citation omitted). "In determining whether an officer is entitled to qualified immunity, [the court] employs a two-step test: first, [the court] decides whether the officer violated a plaintiff's constitutional right; if the answer to that inquiry is 'yes,' [the court] proceeds to determine whether the constitutional right was 'clearly established in light of the specific context of the case' at the time of the events in question." Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (citing Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). A court, however, may "exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236.
B. Analysis
1. The Takedown
Stone argues that summary judgment should be granted in his favor because his use of force was not excessive as a matter of law. Stone further contends that even if his use of force was excessive, he is entitled to summary judgment on the basis of qualified immunity.
As a preliminary matter, City defendants move to strike Stauffer's declaration (ECF #89) under the sham declaration rule. City Def. Resp. 4, ECF #97. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). In fact, courts "have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (collecting cases). The "sham affidavit rule," however, "should be applied with caution" because it "is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). "[N]ewly-remembered facts, or new facts, accompanied by a reasonable explanation, should not ordinarily lead to the striking of a declaration as a sham." Yeager v. Bowlin, 693 F.3d 1076, 1081 (9th Cir. 2012) (citing Cleveland, 526 U.S. at 806-07 (stating the general rule that parties may explain or attempt to resolve contradictions with an explanation that is sufficiently reasonable)).
At his deposition, Stauffer testified that he had left the bar and was walking toward his car to lock it, when he saw Rapet "going toward the bar." Warren Decl., Ex. 1, at 87:3-6, 12-13, ECF #98-1. Stauffer admitted that the bartender had asked him to leave, and he knew the bartender had called the police. Warren Decl., Ex. 1, at 82-83, ECF #72-2. However, Stauffer claimed he did not know Rapet was "there for [him]." Warren Decl., Ex. 1, at 87:4, ECF #98-1. Stauffer further claimed that he did not hear Rapet say anything to him and did not know Rapet was talking to him. Id. at 87:4-6. Stauffer admitted it was possible the officer told him to stop but he kept walking away. Id. at 89:3-6; see also id. at 89:8-9 (admitting he may have been disobeying the officer's instructions as he was walking away, but he did not remember either way).
Stauffer testified that, as he was walking away, Rapet grabbed his arm. Id. at 87:6, 88:9-1. Stauffer described he was "kind of perched up against the wall, trying to keep [him]self from falling," and the officer "could have been helping [him] from falling over." Id. at 88:12-16. Stauffer testified he did not "think the officer was being aggressive by grabbing [him] by the arm," id. at 88:14-15, and he "wasn't feeling threatened by" the officer. Id. at 88:18. When pressed about how the officer grabbed his arm, Stauffer explained that he was up against the wall in a "defensive posture," which usually meant his hands were up, although it was "possible" he "might have had an arm down":
Well, the reason why I know how I was up against the wall is because it's a defensive posture. It's how I was taught. So you put distance between yourself. So I would have put my hands up like that. Now, if he would have grabbed my arm, it's possible I might have had an arm down, but this is the first thing I would have done.Id. at 89:17-23.
However, Stauffer testified that he has "told people [he has] amnesia over th[e] event." Id. at 88:25-89:2. When asked whether he had "amnesia about the part where [the officer] grab[ed] [him]," Stauffer replied:
I do. I don't remember what arm he grabbed me by. I don't remember how he grabbed me, and I don't remember going down to the ground. I don't remember where the other officers came from.Id. at 90:1-4.
Now, in his declaration in support of summary judgment, Stauffer asserts that it was not Rapet but Stone who asked to speak with him and grabbed his arm. Stauffer Decl. ¶¶ 8-9, ECF #89. Stauffer provides no explanation for this discrepancy. In fact, in his declaration, Stauffer even states that he knew Rapet from working security at George Fox University eight years before, which suggests he would have been able to tell the difference between Rapet and Stone at the time of the incident. Id. at ¶ 17.
Nevertheless, in his declaration, Stauffer states that he "was not interested" in talking with Stone, kept "walking away," and said "something to the effect of, 'I am going home.'" Id. at ¶ 9. He claims Stone then "grabbed my arm, slammed me into the wall, tripped me and took me to the ground where I ended face up with him on top of me." Id. at ¶ 11.
Stauffer provides no explanation for why he now remembers that Stone "slammed" him into the wall and tripped him to the ground, whereas before, due to his amnesia, he could not remember how he was grabbed or how he went to the ground. Stone himself admits that he "tripped [Stauffer] in order to take him to the ground." Stone Decl. ¶ 12, ECF #70. However, Stauffer's new allegation that Stone "slammed" him into the wall is a "sham" and should be stricken under the sham affidavit doctrine.
The court next examines Stone's use of force, in light of the remaining evidence in the record. Stauffer and Stone agree that Stauffer was walking away when Stone grabbed Stauffer's arm. Stone contends that he "directed" Stauffer to the wall, and Stauffer and Stone agree that Stone thereafter "tripped" Stauffer and took him to the ground, where he ended up on his back with Stone on top of him. Stauffer Decl. ¶ 11, ECF #89; Stone Decl. ¶ 11, ECF #70.
They disagree regarding whether, after Stone "directed" Stauffer to the wall, Stauffer "responded by spinning towards [Stone] and attempted to pull away," which Stone perceived was a threat to his safety. Stone Decl. ¶¶ 11, 12, ECF #70. While Stauffer has testified that he cannot remember which arm Stone grabbed, how Stone grabbed him, or how he went to the ground, Warren Decl., Ex. 1, at 90:1-4, ECF #98-1, he does not concede that he spun toward Stone or attempted to pull away, but instead asserts that he merely assumed a "defensive posture" against the wall and may have had his arms up. Id. at 89:17-20. "While [Stauffer's] testimony is not crystal clear . . . , the court must at this stage in the proceedings resolve all doubts" and "read[] any ambiguity" in Stauffer's favor. Marriner v. Nation-Wide Horse Transp., Inc., No. 03-cv-808-MO, 2004 WL 2203297, at *3 (D. Or. Sept. 29, 2004). Even the fact that Stauffer suffers from "amnesia" regarding some of the events does not result in summary judgment for Stone, where Stauffer has offered evidence, such as photographs of his injuries, to support his allegations. See Ting v. United States, 927 F.2d 1504, 1508 (9th Cir. 1991) (finding material questions of fact existed where the plaintiff, who suffered from amnesia and was unable to recall the events, produced evidence from which a jury could reasonably conclude that officers used excessive force); Stauffer Decl. ¶ 16, ECF #89 (declaring that, as a result of the officers' use of excessive force, he "suffered contusions and abrasions to [his] head, elbows, legs, knees, etc."); Berman Decl. Exs. 1-3, ECF ##90-1-90-3 (photographs).
Thus, there are disputed questions of fact regarding whether Stauffer posed an immediate threat to Stone and was actively resisting at the time. Glenn, 673 F.3d at 872; see, e.g., Neal v. Ficcadenti, 895 F.3d 576, 582 (8th Cir. 2018) (upholding denial of summary judgment where plaintiff provided evidence that he had his hands up and neither posed a threat to anyone's safety nor resisted arrest at the time the officer executed an arm-bar takedown). Moreover, the crime at issue—a misdemeanor trespass—was minor. "The law is clear that use of force where no force is necessary amounts to a violation of one's Fourth Amendment right to be free from excessive force. This right is clearly established." Kassim Abdulkhalik v. City of San Diego, No. 08CV1515-MMA (NLS), 2009 WL 4282004, at *7 (S.D. Cal. Nov. 25, 2009) (citing P.B. v. Koch, 96 F.3d 1298, 1304 (9th Cir. 1996)); see also Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (noting cases dating back to 2001 have established that "[a] failure to fully or immediately comply with an officer's orders neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force"); Myers v. Brewer, 773 F. App'x 1032, 1038 (10th Cir. 2019), cert. denied, 2020 WL 129643 (U.S. Jan. 13, 2020) ("[I]t is clearly established that an officer uses excessive force when he executes a forceful takedown of a subject who at most was a misdemeanant, but otherwise posed no threat and did not resist arrest or flee.") (cited pursuant to Fed. R. App. P. 32.1). Therefore, Stone is not entitled to summary judgment on the takedown aspect of Stauffer's excessive force claim, including qualified immunity. For the same reason, Stauffer is not entitled to summary judgment either; there remain issues of fact regarding whether Stauffer posed a threat to Stone and his use of force was reasonable under the circumstances.
Stauffer contends that Stone's failure to warn him before taking him to the ground militates in favor of finding the amount of force employed by Stone was excessive. Pl. Mot. Partial Summ. J. 10-11, ECF #88. Stauffer concedes that although officers are not required to give warnings before non-lethal force is used, "they factor into the analysis regarding unreasonable force when the prospect of serious injury, such as head-first contact with concrete exist." Id. at 10.
While warnings are indeed relevant in some circumstances, Stauffer's reliance on Deorle in this case is unpersuasive. In Deorle, police officers were dispatched to assist with a domestic incident involving "an unarmed, emotionally distraught individual who [wa]s creating a disturbance." 272 F.3d at 1275-77, 1282. The plaintiff was "carrying an unloaded plastic crossbow in one hand and what may have been a can or bottle of lighter fluid in the other." Id. at 1277. The plaintiff discarded the crossbow after the defendant officer commanded him to do so, but continued to walk steadily towards the officer. Id. When the plaintiff reached an "unannounced, pre-determined spot," about 30 feet from the officer's position behind a tree, the officer shot the plaintiff in the head with a lead-filled beanbag round. Id. at 1284, 1277 n.11 (noting lead-filled beanbag rounds "have lethal capabilities at thirty feet" and "are potentially lethal at up to fifty feet"). The officer "did not warn [the plaintiff] that he was going to shoot him[,] did not ask him to drop the bottle or can," and never "order[ed] him to halt." Id. at 1278. The plaintiff "suffered multiple fractures to his cranium, loss of his left eye, and lead shot embedded in his skull." Id. The Ninth Circuit found that the officer's use of force was excessive, and held that "warnings should be given, when feasible, if the use of force may result in serious injury, and that the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test." Id. at 1284.
See Hayes v. County of San Diego, 736 F.3d 1223, 1234-35 (9th Cir. 2013) (finding excessive force where officers failed to give a warning before shooting a knife-wielding suspect, who stood six to eight feet away); Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997) ("whenever practicable, a warning must be given before deadly force is employed").
Deorle is readily distinguishable from the facts at hand. Stone's act of grabbing Stauffer, directing him toward a wall, and use of a takedown maneuver are considerably less severe uses of force than firing a lead-filled beanbag round at an individual's face from a potentially lethal distance. In other words, the amount of force Stone used was far less likely to cause the type of "serious injury" contemplated in Deorle. Unlike the officer in Deorle, Stone gave Stauffer repeated commands to halt before resorting to physical force. In addition, Stone was alone and faced with a rapidly developing situation, whereas in Deorle, the officer "and a host of other officers were at the scene for over half an hour," and the officer had "a considerable period of time" to observe the plaintiff and "consult with his superiors concerning the tactics to be employed." Id. at 1283. Thus, Stone's failure to continue warning Stauffer after it became apparent that his warnings were going unheeded does not weigh in favor of finding his use of force was excessive.
Stauffer next argues that "Newberg-Dundee Policies dictate that the least force be used given the circumstances." Pl. Mot. Partial Summ. J 7, ECF #88. The policy language quoted by Stauffer, however, details that "Officers shall use only that amount of force that appears . . . reasonably necessary given the facts and circumstances perceived by the officer[.]" Id. (emphasis added). Although the availability of less intrusive uses of force is a relevant factor, Glenn, 673 F.3d at 872, the Ninth Circuit has rejected Stauffer's contention that an officer's use of force is excessive unless the officer uses the least amount of force available to him:
Besides citing portions of what appears to be the Newberg Police's "Force Response" policy, Stauffer cites no case law, nor does he even attempt to engage with the policy's factors, to support his contention that he "could have been allowed to walk home with or without a citation in lieu of arrest, if not a ride home for his safety." Pl. Mot. Partial Summ. J. 7-8, ECF #88. While Stauffer believes that a citation in lieu of arrest or a ride home would have been a more desirable outcome—and an example of model policing—Stauffer fails to explain how Stone could have done so when he ignored Stone's repeated commands to halt and continued walking away.
Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.Henrich, 39 F.3d at 915. Thus, neither Ninth Circuit precedent nor the use-of-force policy cited by Stauffer require officers to use the least amount of force necessary. "Instead, the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1116 (9th Cir. 2017) (quotations omitted). As discussed above, with respect to the takedown maneuver, that is a question for the jury.
Officers thus need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct [the courts] identify as reasonable.
2. The Handcuffing
In his declaration in support of his motion for summary judgment, Stauffer asserts that shortly after Stone took him to the ground, "Busse, Rapet, and James were all on top of [him] as well," and that Rapet and Rasmussen grabbed his arms, Busse grabbed his legs, and Stone grabbed his arms and upper torso. Stauffer Decl. ¶¶ 12-13, ECF #89. Busse, Rapet, and James have submitted declarations in which they all admit that they ran to assist Stone in taking Stauffer into custody. See Busse Decl. ¶ 7, ECF #64 ("Officer James, Officer Rapet and I all ran to aid Officer Stone in taking plaintiff into custody."); Rapet Decl. ¶ 7, ECF #66 ("I ran to help Officer Stone. . . ."); James Decl. ¶ 6, ECF #69 ("Both Officer Rapet and I ran the short distance to help Officer Stone arrest Mr. Stauffer."). If, as discussed above, Stone used excessive force in taking Stauffer into custody, it follows that the other defendants used excessive force if they aided Stone in doing so. Moreover, Stauffer contends that he was not resisting and was "overpowered." Stauffer Decl. ¶ 14, ECF #89. Thus, genuine issues of material fact exist regarding whether Stauffer was resisting arrest, as the officer contend.
In his Amended Complaint, Stauffer alleged that defendants exercised excessive force by "wrenching his arms behind his back[,] injuring him." FAC ¶ 16, ECF #35. Stauffer does not assert this in his sworn declaration. "[T]he complaint in this case cannot be considered as evidence at the summary judgment stage because it is unverified." Moran v. Selig, 447 F.3d 748, 759 (9th Cir. 2006).
However, the claim against Rasmussen should be dismissed. Rasmussen has offered a declaration in which he states that he "arrived on the scene of plaintiff's arrest after plaintiff was already in custody," "did not play any role in the decision to take plaintiff into custody," and "did not use any force on plaintiff[.]" Rasmussen Decl. ¶ 4, ECF #65. The court asked plaintiff for clarification regarding whether he was pursuing a claim against Rasmussen, and in a March 10, 2020 email to the court and opposing counsel, plaintiff's counsel conceded, "My client says no Rasmussen involvement."
The court asked plaintiff to file a formal stipulation to this effect, but to date that has not occurred.
3. The Flashlight Strikes
As discussed, the parties dispute whether Stauffer was resisting arrest after Stone took him to the ground. James contends that Stauffer loses this claim because he could have "contested the factual accuracy" of James' probable cause affidavit and the Yamhill County Circuit Court's probable cause finding at any time throughout the life of the criminal case, but he failed to do so. James Mot. Summ. J. 16-17, ECF #67 (citing O.R.S. 135.245, 135.285). Thus, James argues, Stauffer "should be judicially estopped from relitigating the facts of his arrest and claiming excessive force was used, [because] a Circuit Court already has found there was probable cause [Stauffer] committed the crimes of Resisting Arrest and Interference with a Peace Officer." Id. at 17.
Stauffer has never contradicted this assertion; therefore, to the extent his declaration makes this assertion, it is not a "sham."
Although James refers to the judicial estoppel doctrine, the cases he cites, Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004), and Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir. 1994), as amended (Apr. 15, 1994), discuss the applicability of the issue preclusion doctrine. Because James relies on cases applying the issue preclusion doctrine, the court analyzes James' arguments under that doctrine rather that judicial estoppel. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (observing that judicial estoppel is a "discrete doctrine").
In Haupt, the plaintiff brought suit under 42 U.S.C. § 1983 claiming the defendant officers violated the Fourth Amendment when they unlawfully arrested him. 17 F.3d at 288. The plaintiff claimed the arrest warrant was invalid because the supporting affidavit contained false statements and omitted exculpatory facts. Id. Applying the issue preclusion doctrine, the Ninth Circuit barred the plaintiff from relitigating the probable cause finding because "he had a full and fair opportunity to litigate the issue in the prior proceeding," but failed in doing so. Id. (citing Allen v. McCurry, 449 U.S. 90, 95 (1980)); see also Awabdy, 368 F.3d at 1068 (citing Haupt for the proposition that issue preclusion can apply to a probable cause determination but declining to apply the doctrine to the plaintiff's malicious prosecution claim). Whether there was, in fact, probable cause to arrest the plaintiff in Haupt, or to prosecute the plaintiff in Awabdy, was relevant to whether the defendants were immune from suit. See Haupt, 17 F.3d at 288 (noting that if the defendants "in fact had probable cause to arrest Haupt, then they are immune from suit") (citing Forster v. Cty. of Santa Barbara, 896 F.2d 1146, 1148 (9th Cir. 1990)); Awabdy, 368 F.3d at 1066 (noting that "to prevail on a § 1983 claim of malicious prosecution, a plaintiff 'must show that the defendants prosecuted him with malice and without probable cause'") (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)) (emphasis added).
Here, at most, the probable cause finding establishes that there was probable cause to arrest and charge Stauffer with the crimes of resisting arrest and interfering with a peace officer. However, the probable cause finding does not establish that Stauffer was guilty of resisting arrest or interfering with a peace officer. A probable cause hearing "is not a criminal prosecution, a mini-trial on the facts, or a trial to determine guilt or innocence." 21 Am. Jur. 2d Criminal Law § 518 (2019). While Stauffer pleaded guilty to criminal trespass, he did not plead guilty to, nor was he convicted of, resisting or interfering. Thus, the issue of Stauffer's resistance was never "actually litigated," nor was it "essential to a final decision on the merits in the prior proceeding." Nelson v. Emerald People's Util. Dist., 318 Or. 99, 104 (1993).
Because the disagreement over Stauffer's resistance, or lack thereof, is not disposed of by issue preclusion, this disputed fact precludes summary judgment. In analyzing James' motion for summary judgment, the court accepts as true Stauffer's contention that he was cooperating and not resisting. Under Stauffer's version of the facts, James' use of a flashlight to repeatedly strike a non-resisting arrestee in the head, even at less than full strength, was unreasonable. Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) ("Gratuitous and completely unnecessary acts of violence by the police during a seizure violate the Fourth Amendment.") (citation omitted); Marley v. Crawford Cnty., Ark., 383 F. Supp. 2d 1129, 1133 (W.D. Ark. 2005) ("There is no doubt that striking a detainee in the head with a baton or flashlight when he is not resisting constitutes excessive force."); Hodsdon v. Town of Greenville, 52 F. Supp. 2d 117, 124 (D. Me. 1999) ("[A] gratuitous blow to the head with a blunt instrument would clearly constitute excessive force."). Further, James' contention that he is entitled to qualified immunity also should be denied. "No reasonable officer could have thought that a gratuitous blow [to an arrestee's head] was proper." Myers v. City of Hermosa Beach, 299 F. App'x 744, 746 (9th Cir. 2008).
As to Stauffer's motion for summary judgment, the court accepts as true James' assertion that Stauffer refused to follow the officers' commands to roll onto his stomach and used "his physical strength to overcome the[ officer's] efforts to put his hands behind his back." James Decl. ¶ 7, ECF #69. However, on this record, the court cannot conclude that striking Stauffer in the head with a plastic flashlight at less than full strength in an effort to gain Stauffer's compliance was excessive as a matter of law. See, e.g., Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) ("Neither tackling nor punching a suspect to make an arrest necessarily constitutes excessive force."); Zimmerman v. Ferns, No. 1:17-CV-00102-MC, 2018 WL 2164866, at *3 (D. Or. May 10, 2018) (finding the defendant officer's punches to the back of the plaintiff's head who was resisting multiple officers' attempts to handcuff him not excessive). The amount of force employed by James is a disputed issue of material fact that cannot be resolved on summary judgment. For example, the quantum of force that James used, the weight of the flashlight, and the extent of the injuries caused by the flashlight strikes are questions of fact that must be resolved by the jury. See Santos, 287 F.3d at 853 ("[P]olice misconduct cases almost always turn on a jury's credibility determinations."); see also Avina, 681 F.3d 1127, 1130 (9th Cir. 2012) ("In cases involving the reasonableness of force by law enforcement officers, 'the reasonableness of force used is ordinarily a question of fact for the jury.'") (quoting Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n. 10 (9th Cir. 1997)); Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018) ("While injuries are not a precondition to section 1983 liability, their absence can suggest a lesser degree of force when that force is of the type likely to cause injuries.") (citations omitted).
III. Negligence
City defendants and Stauffer have filed cross-motions for summary judgment on the common law negligence claims. Pl. Mot. Partial Summ. J. 5-6, ECF #88; City Def. Mot. Summ. J. 25-29, ECF #62. Because Stauffer's negligence claims fail as a matter of law, City defendants' motion for summary judgment on this claim should be granted.
A. The City
In the Amended Complaint, Stauffer alleges the City was negligent in: "Failing to administer training and to timely and appropriately hire, train and supervise employees regarding dealing with citizens safely"; "[f]ailing to hire, train and supervise employees regarding safe restraint of civilians"; and failing "to provide video evidence viewed and obtained by the City of Newberg." FAC ¶ 24, ECF #35.
"Claims of negligent hiring and negligent supervision turn on the same element: foreseeability. In order to establish a negligent supervision claim under Oregon law, [the plaintiff] must demonstrate that [the employer] had reason to know of [the employee's] alleged unlawful propensities." Millbrooke v. City of Canby, No. 3:12-cv-00168-AC, 2013 WL 6504680, at *7 (D. Or. Dec. 11, 2013), findings and recommendations adopted, 2014 WL 287859 (D. Or. Jan. 24, 2014) (citing Whelan v. Albertson's, Inc., 129 Or. App. 501, 507 (1994); Washa v. Oregon Dept. of Corr., 159 Or. App. 207, 225 (1999), aff'd, 335 Or. 403 (2003); Shoemaker v. Management Recruiters Int'l, Inc., 125 Or. App. 568, 575 (1993); Chesterman v. Barmon, 82 Or. App. 1, 4 (1986)).
Foreseeability is usually a question of fact, and thus "not a likely candidate for summary judgment." Millbrooke, 2013 WL 6504680, at *8 (quoting Cunningham v. Happy Palace, Inc., 157 Or. App. 334, 337 (1998)). "However, the Oregon Supreme Court has recognized an exception to this general rule when a claimant fails to present any probative evidence of foreseeability." Id. (citing Buchler v. State By and Through Oregon Corr. Div., 316 Or. 499, 511 (1993)).
Further, "[i]n order to prevail on a negligent training claim, [the plaintiff] must show that the City's alleged failure to train employees . . . was a substantial contributing factor to [his] injuries." Millbrooke, 2013 WL 6504680, at *8 (citing Woodbury v. CH2M Hill, Inc., 335 Or. 154, 163 (2003)). In Millbrooke, the court held that the defendants were entitled to summary judgment because they submitted evidence that the officer in question received extensive training and the plaintiff failed to provide any evidence that the training was insufficient or that it contributed to his injuries. Id. (noting the officer's 780 hours of training).
Here, the City has submitted evidence that before hiring the officers, it subjected them to thorough background investigations and psychological examinations, which did not reveal any dangerous propensities. Casey Decl. ¶¶ 9-10, ECF #63. After the City hired the officers, they were sent to the Oregon Department of Public Safety Standards and Training ("DPSST") for training and certification as police officers. Id. at ¶ 11. After graduating from DPSST, the officers underwent field training, which would have weeded them out if they were unsuitable to be police officers. Id. Each of the officers successfully completed their field training and did not exhibit any dangerous propensities. Id. The officers also received ongoing training throughout their employment. Id. at ¶ 12. In total, each officer has received over 1,600 hours of law enforcement training. Id. Additionally, Chief Casey is unaware of "any substantiated [citizen] complaints made against any of the[] officers that indicate that they have dangerous propensities[.]" Id. at ¶ 14. Finally, each of the officers has "worked under the direction of numerous supervisors," and "the officers' work performance has been evaluated and reviewed pursuant to City policy." Id. at ¶ 15.
Stauffer has not provided any evidence that the training the officers received was insufficient or that it contributed to his injuries. Millbrooke, 2013 WL 6504680, at *8. To the extent Stauffer argues the City was negligent in training James because Commander Bolek found James' flashlight strikes violated department policy, that alone is insufficient to show that the City provided negligent training. Berman Decl., Ex. 8, ECF #90-8. If anything, the fact that Commander Bolek evaluated James' use of force to determine whether it was within City policy supports the conclusion that the City was in fact actively supervising its officers. Thus, summary judgment should be granted in favor of the City on the negligent hiring and negligent supervision claims.
As to Stauffer's claim that the City was negligent in failing to provide him with video evidence, Stauffer has presented no evidence that the City in fact obtained any videos. Even assuming that video evidence exists somewhere, Stauffer fails to allege that the City had a duty to obtain the video for him or how the City's failure to provide him with the videos caused him to suffer a legally cognizable harm. See Chapman v. Mayfield, 358 Or. 196, 205 (2015) (discussing elements of common-law negligence claim). "At common law, there exists no claim for conducting a negligent law enforcement investigation . . . Generally speaking, the duty of police officers to investigate crimes is a duty owed to the public at large and is therefore not a proper basis for an individual's negligence claim." New Tech. Advantage v. Petruzelli, No. C07-5240 RBL, 2007 WL 1848029, at *3 (W.D. Wash. June 25, 2007) (citations omitted). Moreover, if Stauffer believes the City withheld relevant evidence, he should have raised that concern through motion practice during discovery. His failure to timely pursue discovery does not state a claim of negligence against the City. Accordingly, the City is entitled to summary judgment on Stauffer's negligence claim.
B. The Officers
Stauffer alleges that the "[i]ndividual officers were negligent in [their] dealings with [him] in causing injury without provocation or justification." FAC ¶ 24(c), ECF #35. He further asserts that "Stone was negligent in not allowing a non-violent trespasser from going home without using force, by slamming in the wall, tripping him and taking him to the ground." Pl. Mot. Partial Summ. J. 5, ECF #88.
"Courts in this District consistently reject negligence claims at the summary judgment stage when the negligence claim is based on the same facts as claims under 42 U.S.C. § 1983 or an intentional tort." Wagoner v. City of Portland, No. 3:14-CV-2063-AC, 2017 WL 2369399, at *11 (D. Or. May 31, 2017) (citing Woods v. Gutierrez, No. 3:11-cv-1082-BR, 2012 WL 6203170, at *4 (D. Or. Dec. 12, 2012) (holding that facts supporting § 1983 claim cannot also support negligence claim); Whitfield v. Tri-Metropolitan Transp. Dist., No. 06-cv-1644-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009) (same)). "Similarly, intentional conduct, such as arresting and handcuffing a person, cannot support a claim for negligence." Id. (citing Woods, 2012 WL 6203170, at *12 (holding that arresting and handcuffing person was intentional conduct that could not support a negligence claim); Kasnick v. Cooke, 116 Or. App. 580, 583 (1992) ("[P]laintiff may not allege facts that necessarily would constitute an intentional tort but then assert that he can prevail by proving only negligence."). Because Stauffer only alleges that the officers committed intentional acts, the individual defendants' summary judgment motions against the negligent claim should be granted.
Although James has not moved for summary judgment on Stauffer's negligence claim, summary judgment must be granted as to James for the same reason that the other officers are entitled to summary judgment: Stauffer cannot maintain a claim of negligence against James for his intentional acts. See Kasnick, 116 Or. App. at 583 ("As a matter of law and fact, there is no such thing as a negligent fist fight."); see also Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993) (recognizing court's authority to grant summary judgment sua sponte).
IV. Battery
Stauffer and City defendants have filed cross-motions for summary judgment on the common law battery claims. Pl. Mot. Partial Summ. J. 12-13, ECF #88; City Def. Mot. Summ. J. 30-32, ECF #62. Stauffer contends that his claim for battery succeeds as a matter of law because "the unprovoked takedown . . . by Stone and the flashlight to the head beating by James clearly meet the battery standard." Pl. Mot. Partial Summ. J. 12-13, ECF #88 (citing Ballard v. City of Albany, 221 Or. App. 630 (2008)). City defendants argue that the officers are entitled to summary judgment because their use of force was reasonable and justified. City Def. Mot. Summ J. 32, ECF #62.
"[O]nly excessive force by a police officer carrying out an arrest can give rise to civil liability for battery." Gregory v. City of Newberg, No. 3:15-CV-00473-BR, 2015 WL 5577755, at *7 (D. Or. Sep. 21, 2015) (discussing Ballard). Moreover, under Oregon law, "[a] police officer has a complete defense to civil liability for assault or battery if the officer used force as authorized by statute." Wagoner, 2017 WL 2369399, at *10 (citing Gigler v. City of Klamath Falls, 21 Or. App. 753, 763 (1975). Under O.R.S. 161.235(1), an officer may use force "when and to the extent that the peace officer reasonably believes it necessary [t]o make an arrest . . . unless the peace officer knows that the arrest is unlawful." See also O.R.S. 131.615(5) ("A peace officer making a stop may use the degree of force reasonably necessary to make the stop and ensure the safety of the peace officer, the person stopped or other persons who are present.").
As discussed above, whether Stone's takedown and James' flashlight strikes amount to excessive force, and therefore also constitute battery, are disputed issues that cannot be resolved on summary judgment. Thus, Stauffer's motion for summary judgment on his battery claim should be denied.
V. Punitive Damages
In the Amended Complaint, Stauffer claims that he is entitled to punitive damages because "[t]he actions of the Individual Defendant [sic] detailed herein are outrageous, in that they violate plaintiff's civil rights even though they know for a fact that their actions are unconstitutional." FAC ¶ 29, ECF #35. City defendants move for summary judgment on Stauffer's claim for punitive damages because he has not established "that the conduct of any of the officers was motivated by evil motive or intent or reckless or callous indifference to plaintiff's federally protected rights." City Def. Mot. Summ. J. 33, ECF #62 (citing Smith v. Wade, 461 U.S. 30, 47-48 (1983)). Stauffer's sole response to City defendants' argument is that he "conceded that punitive damages do not attach to the city but individuals." Pl. Resp. City 3, ECF #87.
"An official's individual liability for compensatory damages for an excessive use of force claim 'largely overlaps the standard for punitive damages to the extent that both look to the official's reckless or callous disregard or indifference to the plaintiff's constitutional rights.'" Mihailovici v. Snyder, No. 3:15-CV-01675-MO, 2017 WL 1508180, at *8 (D. Or. Apr. 25, 2017) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 649 (9th Cir. 1991). Due to this overlap, and because there are disputed facts from which a reasonable jury could find that the officers acted with the requisite culpability to warrant punitive damages, City defendants' motion for summary judgment should be denied.
RECOMMENDATIONS
City defendants' Motion for Summary Judgment [62] should be:
1) First Cause of Action, First Claim—Excessive Force:
GRANTED against Rasmussen, DENIED against Busse, Rapet, and Stone.
2) First Cause of Action, Second Claim—Monell:
GRANTED.
3) Second Cause of Action, First Claim—Negligence:
GRANTED.
4) Second Cause of Action, Third Claim—Battery:
GRANTED against Rasmussen, DENIED against Busse, Rapet, and Stone.
5) Punitive Damages:
DENIED as to Busse, Rapet, and Stone and otherwise GRANTED.
James' Motion for Summary Judgment [67] should be:
1) First Cause of Action, First Claim—Excessive Force:
DENIED.
Additionally, any negligence claim against James should be dismissed for the same reasons such a claim must be dismissed against the other defendants.
Plaintiff's Motion for Partial Summary Judgment [88] on his claims of excessive force, negligence, and battery should be DENIED in its entirety.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, April 03, 2020. 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.
DATED March 20, 2020.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge