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January 16, 1987

TERRY L. DAVIS, Administrator for the Estate of Ronald D. Davis, Deceased, and TERRY D. DAVIS and JACQUELINE D. DAVIS, Individuals, Plaintiffs
THE CITY OF ELLENSBURG, a municipal corporation, and JOSEPH K. NEWBRY; MICHAEL A. DeLOZIER; and WILLIAM J. HUTTON, Defendants

The opinion of the court was delivered by: QUACKENBUSH

 BEFORE THE COURT are five (5) motions in the above-captioned case, heard with oral argument December 22, 1986. They are: defendants' Motion to Dismiss or in the Alternative to Stay the Proceedings (Ct. Rec. 25); defendants' Motion for Summary Judgment (Ct. Rec. 29); plaintiffs' Motion to Stay Consideration of Summary Judgment and Affidavit Pursuant to Rule 56(f) (Ct. Rec. 64); plaintiffs' Motion to Require Production of Records for Inspection and Copying (Ct. Rec. 58); and plaintiffs' Motion for Medical Examination of Defendants Joseph K. Newbry and William J. Hutton (Ct. Rec. 40). Appearing for defendants was Mark A. Marsing. Representing plaintiffs were J. Adam Moore and Rick L. Hoffman.

 This case was brought under 42 U.S.C. § 1983 and various state survival and wrongful death statutes. It arose from the death of Ronald D. Davis after an arrest by the defendant police officers, employees of the City of Ellensburg. Plaintiffs allege that the officers used unreasonable and excessive force in making an illegal arrest and were deliberately indifferent to Mr. Davis' medical needs, including failure to detect a plastic "baggie" of marijuana that was lodged in his airway. Plaintiffs' claims against the city allege that the officers acted "pursuant to the customs and practices of the Ellensburg Police Department" and that

said custom and practice, effectuated through improper training, policy-making, supervision and discipline, caused the individual defendant and other officers at the scene to approach plaintiff without justification and/or use unreasonable, excessive and reckless force and inattention depriving RONALD L. [sic] DAVIS of his liberty and life in violation of the United States Constitution, Amendments IV and XIV.

 Complaint, Count II, paragraph 12.


 In making their Motion to Dismiss or in the Alternative to Stay the Proceedings, defendants contend that this court lacks subject matter jurisdiction because any alleged negligence on the police officers' part is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). Defendants also contend there are insufficient allegations in regard to any claimed misuse of the defendant policemen's power of arrest and the reasonableness of the force used to arrest Mr. Davis. In their motion for summary judgment, defendants argue an absence of genuine issues of material fact regarding these issues.

 Discussing the alleged liability of the city, defendants argue that there is an insufficient allegation and showing that the conduct at issue implements or executes the city's policy or custom, see Monell v. Dept. of Social Services, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 2433-2437, 85 L. Ed. 2d 791 (1985), and further that state tort remedies provide adequate post-deprivation redress under Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).

 Defendants next argue plaintiffs' lack of standing to bring their § 1983 claims with reference to the state's wrongful death statutes, and that although entitled to sue under Washington's survival statute, R.C.W. 4.20.046, plaintiffs are subject to the statutory preclusion of damages for "pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased. . . ." Moreover, defendants contest plaintiffs' claim of a constitutionally-protected interest in their relationship to their son.

 Finally, defendants claim that in the event the court declines to dismiss, it should defer to the prior state court action in Kittitas County. Defense counsel stated in oral argument that plaintiffs had submitted their case to the state court in 1984, and should not be able to effectively accomplish a "removal" to the federal court by subsequently filing a parallel federal action.

 Plaintiffs' counsel in oral argument stated that this action was not brought for the police officers' negligence but for their deliberate indifference and recklessness in making an unlawful seizure under the fourth amendment. Referring to the record on file and citing the affidavit of Dr. Ben Menke (Ct. Rec 55), plaintiffs contend that a "multitude of significant factual issues" are implicated in the questions of "probable cause, reasonable suspicion, subjective necessity for force, deliberate indifference to medical needs, reckless supervision and training" which are at the core of plaintiffs' case (Ct. Rec. 54, p.9). Plaintiffs argue that none of these questions "can be factually founded absent an assessment of credibility; and summary judgment may not be granted where credibility is, or may be crucial." (Id. at p.10).

Plaintiffs' theory as to the city's liability . . . is not grounded upon the inference of policy or custom from a single incident of force. Plaintiffs contend that a trier of fact could find that the City inadequately supervised its police officers or had a "persistent and widespread practice of misconduct which had gained the force of custom."

 Ct. Rec. 52, p.7, incorporating Plaintiffs' Supplemental Memorandum in Opposition to Motion for Summary Judgment, Ct. Rec. 54, p.23.

 Plaintiffs also request that consideration of the city's Monell liability be stayed pending the receipt of further discovery, arguing that defendants have exclusive knowledge of certain critical information. See, Plaintiffs' Motion to Stay Consideration of Summary Judgment and Affidavit Pursuant to Rule 56(f), Ct. Rec. 64.

 Plaintiffs urge this court to fashion a remedy under the state survival and wrongful death statutes as was done in Guyton v. Phillips, 532 F. Supp. 1154 (N.D. Cal. 1981) and Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), disregarding statutory limitations on plaintiffs' recovery or standing as inconsistent with the deterrence purpose of § 1983. Plaintiffs assert that defendants' reliance on Robertson v. Wegmann, 436 U.S. 584, 56 L. Ed. 2d 554, 98 S. Ct. 1991 (1978), in which an action for damages was abated under Louisiana's survival statute, is misplaced because in the present case -- as distinguished from Robertson -- the alleged deprivation of constitutional rights was the cause of the plaintiff decedent's death. See, 436 U.S. at 594.

 Finally, plaintiffs argue that the court should decline to abstain in light of the state court proceedings, citing the Ninth Circuit's reference to the "unflagging obligation" of the federal court to exercise its jurisdiction in the absence of exceptional circumstances, an obligation which is "particularly weighty when those seeking a hearing in federal court are asserting . . . their right to relief under 42 U.S.C. § 1983." Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980), citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 817-818, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).

 Considering the factors delineated by the Supreme Court in Colorado River and Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983), which have been applied to § 1983 actions by the Fifth Circuit in Signad, Inc. v. City of Sugar Land, 753 F.2d 1338, 1340 (5th Cir. 1985), and by the Sixth Circuit in Crawley v. Hamilton County Commissioners, 744 F.2d 28, 31 (6th Cir. 1984), plaintiffs argued that federal as well as state law will apply in this case; neither court has assumed jurisdiction over any res or property; the federal forum would avoid the effects of prejudicial publicity in Ellensburg; a federal forum would avoid piecemeal litigation; and although the state action was filed first, there has been far less progress in that case than in the federal suit.

 Defendants' Memorandum in Support of Motion to Dismiss (Ct. Rec. 27) states that plaintiffs' complaint "alleges insufficient facts to support a claim against any defendant under Section 1983," and that "the claim filed by plaintiffs fails to state a section 1983 action." However, dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiffs can prove no set of facts in support of their claims that would entitle them to relief. King v. State of California, 784 F.2d 910, 912 (9th Cir. 1986).

 Plaintiffs have properly stated a claim under § 1983 if they have alleged facts which, if proved, would establish a constitutional deprivation. Rutherford v. City of Berkeley, 780 F.2d 1444, 1446-48 (9th Cir. 1986). An arrest without probable cause gives rise to an action for damages under the fourth amendment, applicable to the states through the fourteenth. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). Moreover, even if a police officer has probable cause to effect an arrest, excessive force used in the seizure of a person may constitute a fourth amendment violation. Id. at p. 1011; Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). Under the circumstances at bar, the court is unable to find that "it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986), and thus defendants' Motion to Dismiss must be DENIED.

 Summary judgment is granted where, viewing the evidence and the inferences arising therefrom in favor of the non-movant, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Cardwell v. Kurtz, 765 F.2d 776, 778 (9th Cir. 1985). The initial burden of showing the absence of material fact rests with the movant; "once that burden is met, however, the opponent must counter with specific factual allegations revealing a genuine issue of fact. . . ." Int. Union of Bricklayers, etc. v. Jaska, 752 F.2d 1401, 1405 (9th Cir. 1985). Furthermore, as plaintiffs note, in regard to the existence of probable cause to arrest, "in a § 1983 action the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury; and summary judgment is appropriate only if no reasonable jury could find that the officers did or did not have probable cause to arrest." McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984).

 In the case at bar, it is clear that plaintiffs are not relying on the negligence standard, and thus Daniels, supra, is not implicated. Furthermore, numerous factual disputes preclude summary judgment under Rule 56(c). The issue of probable cause is central to the legality of the arrest made by the individual defendants herein and of the force used by the policemen. Defendants observe that under Washington law, an officer is authorized to use all necessary force to effect an arrest if the suspect flees or forcibly resists, provided that the suspect has notice of the intention of officers to arrest him. R.C.W. 10.31.050. However, it appears to the court that material issues regarding notice as well as the degree and timing of the decedent's alleged resistance present questions for the jury, which must assess credibility of the witnesses.

 Defendants urge application of Parratt, and would require that plaintiffs avail themselves of the post-deprivation remedies in state tort law. While Parratt involved a loss of property rather than an alleged deprivation of life or liberty, and its concurring opinions sought to limit its scope to property deprivations, 451 U.S. at 527, Parratt has not been so limited. See, State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir. 1983).

 However, Parratt does not apply to intentional deprivations of liberty rising to the level of substantive due process violations. McRorie v. Shimoda, 795 F.2d 780, 785 (9th Cir. 1986). As the McRorie court observed, while a procedural due process violation, such as a random and unauthorized deprivation of property, does not occur until the state deprives the individual of a procedure for redress, a substantive deprivation of a liberty interest results in a due process violation "at the moment the intentional injury to the interest occurs."

Property's susceptibility to being restored or replaced after a temporary deprivation supports a policy of allowing the state to try to remedy the loss before the deprivation becomes a constitutional violation. Liberty, however, is not restorable or replaceable; a liberty deprivation is permanent.

 Id. at 786.

 This analysis is particularly compelling where an alleged deprivation has resulted in loss of life. Parratt does not bar this action.

 Defendants also contend there has been an insufficient showing of the city's liability under Monell v. Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), to withstand summary judgment. Monell requires that plaintiff demonstrate that the conduct at issue implements or executes an official municipal policy, or represents a government custom which has not received formal approval from the government. Id. at 690-691. A subsequent case, City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985), stated that Monell's requirement "was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers." Id. at 2435. The Ninth Circuit, considering whether a municipal policy caused an alleged constitutional deprivation, analyzed Tuttle as "break[ing] the causation analysis under Monell into two distinct inquiries." Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir. 1986).

When the municipal policy is unconstitutional on its face because it precludes consideration of the relevant constitutional factor, . . . then the causal relationship between the municipal policy and the constitutional tort is evident even if only one constitutional tort is proved. When, however, the municipal policy simply admonishes municipal employees to act reasonably in considering a range of factors, the connection between municipal policy and the constitutional deprivation is not clear. When the latter type of municipal policy exists a section 1983 claimant must provide "considerably more proof than the single incident ...

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