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Bonivert v. City of Clarkston

United States District Court, E.D. Washington

March 18, 2015

RYAN J. BONIVERT, Plaintiff,
CITY OF CLARKSTON, et al., Defendants.


THOMAS O. RICE, District Judge.

BEFORE THE COURT are the following motions: Asotin County Defendants' Motion for Summary Judgment (ECF No. 61); Clarkston Defendants' Motion & Memorandum of Authorities in Support of Motion for Summary Judgment (ECF No. 71); and Defendants' Daubert Motion to Exclude Portions of Expert Witness Winthrop Taylor's Report and Testimony (ECF Nos. 77, 79). These matters were heard with oral argument on March 12, 2015. Samual T. Creason appeared on behalf of Plaintiff. Ann E. Trivett appeared on behalf of the Asotin County Defendants. Christopher J. Kerley appeared on behalf of the City of Clarkston Defendants. The Court has reviewed the briefing and the record and files herein, heard from counsel, and is fully informed.


Plaintiff filed his initial Complaint in this action on February 25, 2014, [1] alleging that Defendants violated 42 U.S.C. § 1983 when they, inter alia, entered and searched Plaintiff's home without a warrant, applied excessive force, unjustifiably arrested Plaintiff without a warrant, and subjected Plaintiff to degrading treatment while in custody. ECF No. 1. Plaintiff has sued several County of Asotin and City of Clarkston officials in their individual capacities, as well as their spouses. Id. Plaintiff has also sued the County of Asotin and the City of Clarkston. Id.

In the instant motions, Defendants move for summary judgment on all claims. ECF Nos. 61, 71. Defendants also jointly move to exclude portions of the report and testimony of Plaintiff's expert witness, Mr. Winthrop Taylor. ECF Nos. 77, 79.


In the early hours of January 8, 2012, Sergeant Danny Combs and Officer Paul Purcell responded to a "physical domestic" dispatch to Plaintiff Ryan Bonivert's home in Clarkston, Washington. ECF Nos. 72 ¶ 9; 94 ¶ 18; 107-1; 107-3. The dispatcher had been "advised the male was inside the house being restrained by other males, " that "[i]t was physical at one point, " and that the "female [was] "outside in a car with a child, " which information the dispatcher relayed to the officers. ECF Nos. 107-1; 107-3. Sergeant Combs and Officer Purcell were the only two officers patrolling for the City of Clarkston ("City") at the time. ECF No. 62 ¶ 6. Although the two officers were in separate patrol vehicles, it was the City's policy for both patrol officers to respond to a domestic violence call. ECF No. 72 ¶ 6. Officer Purcell arrived at Plaintiff's residence around 2:08 a.m., with Sergeant Combs arriving shortly thereafter. ECF Nos. 72 ¶ 10; 94 ¶¶ 19-20; 107-1; 107-3. When the officers arrived, they encountered five people standing in front of the house. ECF No. 53 ¶ 3.6.

The officers interviewed those present outside the residence. Sergeant combs spoke with two males, Mr. Gray and Mr. Miller. ECF Nos. 72 ¶ 12; 94 ¶ 28. According to Sergeant Combs, the males told him that Jessie Ausman and Plaintiff were in a relationship, had a child together, and had gotten into an argument that evening. ECF Nos. 72 ¶ 13; 93-5 at 81-82; 94 ¶ 53. Ms. Ausman had told Plaintiff that she was leaving with the baby, which plan Plaintiff opposed. ECF Nos. 72 ¶¶ 13-14; 93-5 at 82. Plaintiff allegedly rushed at Plaintiff and was tackled by one of the males before he could make contact with Ms. Ausman. ECF Nos. 72 ¶ 14; 93-5 at 82. Plaintiff remained inside the house.

Officer Purcell interviewed a group of three females: Ms. Ausman, her sister, and her mother. ECF Nos. 72 ¶ 11; 93-5 at 81-82; 94 ¶ 29. According to Officer Purcell, the females relayed a similar narrative with the only difference being that when Plaintiff rushed at Ms. Ausman, he actually made contact and threw her to the ground. ECF Nos. 72 ¶ 15; 93-5 at 82; 94 ¶ 32. Ms. Ausman allegedly complained of back pain from the incident, either to Officer Purcell, Sergeant Combs, or both. ECF Nos. 72 ¶ 17; 93-5 at 82; 94 ¶ 38. In her deposition testimony, Ms. Ausman testified that although she probably did not recount the night with the depth of detail provided at her deposition, she asserts that she told the officers "exactly what had happened that night." ECF Nos. 93-11 at 29; 95 ¶ 34. Plaintiff does not dispute that these witnesses made statements regarding the encounter between Plaintiff and Ms. Ausman; rather, he questions what information was provided, in what detail it was provided, and the reliability of these statements.[3] See ECF No. 96.

The two officers then exchanged narratives and decided to speak with Plaintiff. ECF Nos. 93-5 at 82; 94 ¶ 57. The officers then approached the front door of Plaintiff's residence, knocked loudly, identified themselves as police, and instructed Plaintiff to come to the door. ECF Nos. 72 ¶ 20; 93-5 at 82; 94 ¶¶ 68, 70. When there was no response, Sergeant Combs proceeded to knock on other doors and windows of the residence, as well as look through the windows with the assistance of his flashlight. ECF Nos. 72 ¶ 21; 93-5 at 82; 94 ¶¶ 71, 75. In his deposition, Sergeant Combs testified that he was not certain that Plaintiff would have been able to hear his initial knocking on the front door. ECF No. 93-5 at 64. Plaintiff testified that he heard loud banging on his front door but neither knew who was at the door, nor could understand what he was saying. ECF No. 62 ¶ 55. When Sergeant Combs approached the side door on the north side of the house, he heard it lock as he was approaching. ECF Nos. 62 ¶ 56; 72 ¶ 22; 93-5 at 82; 94 ¶¶ 76, 78 (noting that Sergeant Combs informed Officer Purcell of this action). Sergeant Combs testified that, upon hearing the door lock, he formed the opinion that Plaintiff did not want to speak with him. ECF No. 94 ¶ 76. At this point, Plaintiff understood that there were police officers outside and that they were asking him to come outside. ECF No. 62 ¶ 57. Plaintiff did not communicate with the officers at this time.

The officers returned to question the witnesses. In response to questioning whether Plaintiff was a danger to himself, Ms. Ausman recalls saying she did not believe so and informed Sergeant Combs that there were no weapons in the home, which he interpreted to mean there were no firearms. ECF Nos. 72 ¶ 25; 93-11 at 18. The females told Sergeant Combs that Plaintiff was volatile and upset, and Ms. Ausman stated that Plaintiff was not acting like himself. ECF Nos. 72 ¶ 25; 93 ¶¶ 91-92; 93-11 at 32. In response to questioning about how Plaintiff would respond to having his home broken into, Ms. Ausman warned Sergeant Combs that Plaintiff has a problem with authority and recounted Plaintiff's behavior towards officers during a recent DUI arrest. ECF Nos. 93-11 at 22; 94 ¶ 93. Ms. Ausman was visibly upset when speaking to the officers. ECF Nos. 93-5 at 57; 93-11 at 33.

At this point, Sergeant Combs decided it was necessary to make contact with Plaintiff and assess his condition. ECF No. 72 ¶ 27; see ECF No. 93-5 at 93-94 (in response to questioning regarding why he decided to enter, Sergeant Combs stated the following: "His state of mind, the volatility of the domestic, and is he going to harm himself, is he harmed at that time, and safety risk to him, us, his... girlfriend..., and the child. In my judgment, yes I needed to talk to him, and I needed to talk to him right away."). Ms. Ausman, who had been living in Plaintiff's home for approximately two years, gave Sergeant Combs permission to enter the house. ECF Nos. 62 ¶ 15; 72 ¶ 23; 73 at 39. Ms. Ausman does not recall whether she gave permission to break a door or window to gain entry; however, Sergeant Combs' police report indicated such permission was given. ECF Nos. 83-5 at 82; 93-11 at 21-22.

The City officers requested assistance from the Asotin County Sheriff's Office ("County").[4] ECF Nos. 107-1; 107-3. Asotin County Deputies Gary Snyder and Joseph Snyder received the radio request from the City to assist in the response efforts at Plaintiff's home. ECF Nos. 62 ¶ 10; 94 at 108. Deputies Gary and Joseph Snyder were the only two officers working patrol for the County at the time. ECF No. 62 ¶ 5. They arrived on the scene at around 2:20 a.m. ECF Nos. 62 ¶ 11; 94 ¶ 111. The deputies spoke with Sergeant Combs, the highest ranking City officer at the scene. ECF Nos. 62 ¶¶ 17-18; 94 ¶ 115. Deputy Gary Snyder recalls Sergeant Combs telling them that Plaintiff was locked inside the residence and would not come out after a physical encounter with his wife. ECF No. 62 ¶ 19. Deputy Joseph Snyder recalls Sergeant Combs requesting their assistance to make entry. Id. ¶ 20.[5]

The officers developed a plan of entry. ECF Nos. 62 ¶ 21; 94 ¶ 117. Officer Purcell remained at the front door of the residence (the east side) while Sergeant Combs and the County deputies went around to the north side of the residence. ECF Nos. 72 ¶ 32; 94 ¶ 117. Sergeant Combs again knocked on the side and back doors, identified himself as the police, and advised Plaintiff to open the door. ECF Nos. 72 ¶ 32; 94 ¶ 135. Sergeant Combs and Deputy G. Snyder shined their flashlights through the windows and saw Plaintiff retreat into his bedroom. ECF Nos. 62 ¶ 58; 94 ¶ 140. Sergeant Combs approached the back door of the residence (the west side), with Deputy J. Snyder directly behind him and Deputy G. Snyder standing farther back to maintain visibility of the front door. ECF No. 62 ¶ 44. The officers were each equipped with a firearm, Taser, and handcuffs. Id. ¶¶ 45-47. Deputy G. Snyder also had pepper spray and a baton, Deputy J. Snyder also had a baton, and Sergeant Combs also had a folding knife. Id.

Sergeant Combs broke a window pane in the back door with his flashlight and reached through the opening to unlock the door. ECF Nos. 62 ¶ 51; 72 ¶ 11; 94 ¶ 168. At this point, Plaintiff opened the door. ECF Nos. 62 ¶¶ 51, 63-64; 72 ¶ 35; 94 ¶¶ 170-171 (Deputy G. Snyder was less clear about who opened the door). The officers observed Plaintiff screaming, yelling profanities, standing with fists clenched and chest puffed, "acting aggressive and out of the control, " in an "extreme rage, " yelling "extremely loud, " and acting "very confrontational." ECF Nos. 62 ¶ 65; 63-2 at 11; 63-3 at 9-10. Plaintiff admits that he opened the door in a "displeased fashion" and spoke in an "elevated" voice. ECF Nos. 62 ¶ 64; 63-4; 94 ¶ 173.

Sergeant Combs states that he ordered Plaintiff to stay back, calm down, and get on the ground. ECF No. 62 ¶ 68. Deputy J. Snyder similarly ordered Plaintiff to get on the ground and show his hands. Id. ¶ 69. Plaintiff disputes he was given these commands and maintains that there were flashlights pointed at him, which caused him to lower his hands to shield his eyes, and he was unable to understand what the officers were saying. ECF Nos. 62 ¶¶ 72-73; 94 ¶ 175. The officers observed Plaintiff advancing towards Sergeant Combs. ECF Nos. 62 ¶¶ 66, 71; 63-3 at 9-10; 64 ¶ 16. Plaintiff adamantly denies any advancement.[6] ECF Nos. 62 ¶ 66; 63-4 at 8; 72 ¶ 36. Although the video footage from Sergeant Combs' taser is not entirely clear, it shows Plaintiff beyond the threshold of the door towards the officers, which shows there was an advancement. See ECF No. 104.

Allegedly in response to the perceived threat posed by Plaintiff, Sergeant Combs deployed his taser in dart mode at Plaintiff. ECF Nos. 62 ¶ 76; 63-4 at 8; 72 ¶ 36; 94 ¶ 188, 193. Deputy G. Snyder also shot his taser at Plaintiff, which firing was ineffective. ECF No. 62 ¶ 78. The officers did not warn Plaintiff that they were going to deploy their tasers, ECF No. 94 ¶ 195; however the officers contend they were shouting commands at Plaintiff, commands which Plaintiff failed to obey, ECF No. 62 ¶ 70. Plaintiff swore at the officers, brushed off several of the probes, and attempted to close the door. ECF Nos. 62 ¶ 76; 72 ¶ 36; 94 ¶¶ 192-196. Plaintiff admits that only one dart from Sergeant Combs' taser application hit him, and he does not recall feeling any electrical current or charge as a result. ECF Nos. 62 ¶ 80; 63-4 at 9; 72 ¶ 85. Before Plaintiff could completely close the door on the officers, Sergeant Combs shoved the door open with enough force to throw Plaintiff to the other side of the mudroom.[7] ECF Nos. 62 ¶ 82; 94 ¶ 196.

Once inside the house, the County deputies observed Plaintiff swinging his fists and attacking Sergeant Combs. ECF Nos. 62 ¶ 91; 72 ¶ 38, 93; 94 ¶¶ 198-200. Plaintiff disputes that he "rushed" at Sergeant Combs and swung "both his arms;" however, he does not rebut the assertion that the County deputies observed him attacking Sergeant Combs. See ECF Nos. 94 at 198; 95; 96. Deputy J. Snyder tackled Plaintiff, and while Plaintiff was on the ground, Sergeant Combs drive stunned Plaintiff multiple times in his upper right shoulder. ECF Nos. 62 ¶ 84; 72 ¶¶ 38-39; 94 ¶ 202. Eventually all three officers were holding Plaintiff to the ground. ECF No. 62 ¶¶ 95-97. Plaintiff continued to resist, even after Deputy J. Snyder handcuffed him. ECF Nos. 62 ¶ 98-99; 72 ¶ 39; 94 ¶ 212-213. Plaintiff concedes that he continued to struggle throughout the altercation and can be heard in the taser video-in response to an officer's repeated commands to "give [the officer his] hands" and "hold still"-asserting "no, " "why, " and "why are you in my house?". ECF Nos. 63-4 at 9; 105. Sergeant Combs deployed his taser in drive stun mode once more after Plaintiff was handcuffed and continued to resist. ECF No. 72 ¶ 39. Sergeant Comb's taser report shows his taser was activated in drive stun mode four times within approximately one minute.[8] ECF No. 94 ¶ 211; see ECF No. 93-1 at 3-8. Plaintiff was then placed under arrest for assault on an officer, resisting arrest, and domestic violence assault in the fourth degree. ECF No. 72 ¶ 43.

After his arrest, Plaintiff was transported to the Asotin County Jail. The Asotin County Jail has a total of 52 beds, with the bunks in each cell either made of concrete or steel. ECF No. 62 ¶¶ 114-115. The floors of each cell are similarly made of concrete. Id. ¶ 116. According to County Deputy Shawn Rudy, the jail often runs at capacity and there is not always adequate bunk space for each detainee. Id. ¶ 117. Upon booking, each detainee receives several bedding items, including a sheet, blanket, and mattress, and personal hygiene items. Id. ¶ 118. Male detainees do not receive toilet paper upon booking, the rationalization being many detainees do not remain long enough to need any toilet paper and excess toilet paper can be fashioned into a weapon or used to clog the plumbing in cells. Id. ¶ 120. That being said, a detainee can request toilet paper from staff. Id. ¶ 122. Toilet paper is kept on the medical cart which circulates the facility at least four times a day. Id. ¶ 123. Staff can also access toilet paper at the end of each tier of cells upon request. Id. ¶ 124. Finally, detainees can request toilet paper by submitting a "kite" or electronic message to staff through the kiosk available in the common area. Id. ¶ 126.

Plaintiff arrived at the Asotin County Jail at approximately 2:36 a.m. on the morning of January 8, 2012. Id. ¶ 129. Upon booking, Plaintiff received a cup, toothbrush, toothpaste, a sheet, a blanket, and a mattress with a built-in pillow. ECF Nos. 62 ¶ 131; 63-5 at 1. Plaintiff was then assigned to a cell which had a bunk bed and two other detainees already assigned to it. ECF No. 62 ¶ 136. Plaintiff was instructed to sleep on the floor. ECF Nos. 62 ¶ 140; 94 ¶ 226. During the time that Plaintiff was in custody, all of the other general population cells had, at some point in time, three detainees per cell. ECF No. 62 ¶ 144; see ECF No. 63-2.

The following morning, Plaintiff had the urge to defecate. ECF Nos. 62 ¶ 146, 148; 94 ¶ 227. Plaintiff requested toilet paper from a jail employee, who responded to the effect that Plaintiff would "get some at some point." ECF Nos. 62 ¶ 150; 63-5 at 5. Plaintiff went to indoor recreation at approximately 7:39 a.m., but did not request toilet paper at this time, nor did Plaintiff request toilet paper during lunch. ECF Nos. 62 ¶ 152; 63-5 at 5. Plaintiff asserts that one of his cell mates requested toilet paper on three separate occasions after lunch to no avail. ECF Nos. 62 ¶ 155; 63-3 at 5. Plaintiff received a roll of toilet paper at approximately 6:43 p.m. ECF No. 62 ¶ 158. Plaintiff had only one bowel moment while in custody and this was after he received toilet paper.[9] Id. ¶ 160. Plaintiff was released from custody at approximately 4:11 p.m. on January 9. Id. ¶ 172.


I. Motions for Summary Judgment

Summary judgment may be granted to a moving party who demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [trier-of-fact] could reasonably find for the plaintiff." Id. at 252.

For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute concerning any such fact is "genuine" only where the evidence is such that the trier-of-fact could find in favor of the non-moving party. Id. "[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks omitted); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968) (holding that a party is only entitled to proceed to trial if it presents sufficient, probative evidence supporting the claimed factual dispute, rather than resting on mere allegations). Moreover, "[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party, Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which would be admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

A. Section 1983 Claims

Plaintiff alleges several causes of action under 42 U.S.C. § 1983: unreasonable warrantless search and entry, excessive force, unlawful warrantless arrest, pretrial detention that amounts to punishment, and conspiracy. A cause of action pursuant to section 1983 may be maintained "against any person acting under color of law who deprives another of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983). The rights guaranteed by section 1983 are "liberally and beneficently construed." Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 684 (1978)).

Here, there is no dispute that the officers acted under the color of law; thus, the only question is whether they violated Plaintiff's constitutional rights.

B. Unreasonable Search

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. In light of this fundamental right, "searches and seizures inside a home without a warrant are ...

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