United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Defendants' motion for summary judgment [Dkt. #26]. In 2011, The Pierce County Sheriff's Department used a police dog to arrest Jones on a warrant. Deputy Brett Karhu, the canine handler, thought that Jones was about to flee into a dark wooded area, so he released the dog without giving a warning. The dog apprehended Jones by biting him on the arm, which caused Jones significant pain and injuries. Jones is suing Deputy Karhu and Pierce County for the incident. He alleges that Karhu unnecessarily deployed the dog and then allowed it to bite him longer than necessary. He has brought 42 U.S.C. § 1983 excessive force claims and a number of state-law tort claims against Karhu and the County. Karhu and the County now move for summary judgment.
Jones is a drug user and has a long criminal history. In 2009, he was convicted under Washington State law of possessing methamphetamine. He was sentenced to six months and one day of confinement to be followed by one year of community custody. Because he was convicted of a non-violent, non-sexual offense, he was allowed to serve his confinement period at a community custody treatment facility.
At some point during his sentence, Jones stopped reporting to his supervising corrections officer, so a warrant was issued for his arrest for Escaping Community Custody (a felony). On February 5, 2011, the Sheriff's Department received a tip that Jones was staying at a house in Puyallup, Washington. Deputies James Maas and Jason Bray responded to the tip. They knew Jones from previous encounters and had arrested him multiple times for other offenses. The deputies claim that Jones has a reputation and history of running from officers, but they admit that they have never witnessed or heard reports of him being violent. Jones disputes that he has run from officers. In any event, the deputies requested backup from a K-9 unit because they thought that Jones might try to flee. Deputy Karhu and his dog, Oni, responded to their request.
When the three deputies met at the house, Maas and Bray told Karhu that Jones had run in the past, and they showed him a picture of Jones. The house's back yard opens up to a wooded area. The deputies thought that if Jones attempted to run, he would likely try to escape out the back door and flee into the woods. So, Karhu went to the back yard and knelt down next to Oni in an area concealed by a dark shadow 10 or 15 feet from the house's small back patio where he could not be seen.
As Karhu took his position in the back yard, Maas and Bray walked to the front door and knocked. As Karhu waited in the shadows with Oni, he saw Jones walk out the back door, just as he had thought he might. According to Karhu, Jones came out onto the lit patio, looked around, and then started walking towards the grass. Karhu could see both of Jones's hands and that he was not holding any weapons. Nevertheless, he decided to send Oni without giving a warning. Karhu used his flashlight to illuminate Jones as Oni approached, which caused Jones to pause and look in Karhu's direction right before Oni bit him on the arm and took him to the ground.
The parties dispute how long Oni continued to bite Jones. Karhu claims that he quickly followed Oni and gave the command to release his bite. According to Jones, Karhu allowed Oni to continue biting him well after he was secured. He claims that Karhu approached him and grabbed Oni's harness. When Karhu grabbed the harness, Oni eased his bite momentarily, but then bit down with renewed vigor. Only then did Karhu finally release Oni's bite. After Oni released him, Jones was arrested and taken to the hospital for medical care.
Jones is suing Karhu and the County for the incident. He has asserted § 1983 excessive force claims against Karhu for unnecessarily deploying Oni without first giving a warning and for allowing Oni to continue biting him well after he had been apprehended. He has also asserted state-law claims against Karhu for the tort of Outrage, assault, negligence, and negligent infliction of emotional distress. Against the County, Jones has asserted § 1983 Monell claims and a state-law claim under RCW 16.08.040, the Washington strict liability dog bite statute.
Deputy Karhu and the County move for summary judgment on all of Jones's claims. Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable [fact finder] could return a [decision] in its favor." Triton Energy, 68 F.3d at 1220.
A. Claims Against Karhu
1. § 1983 Excessive Force
Karhu argues that his use of force was lawful because Jones was being arrested for a felony, he did not know if Jones was armed, it appeared to him that Jones was trying to flee, the situation would have been more dangerous if Jones had entered into the woods, and because the situation was rapidly evolving. Jones contends that the use of such significant ...