United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE
BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No. 14). Response and Reply briefs have been filed. (ECF No. 27 & 33). The court heard oral argument on June 11, 2015. Richard Wall appeared for Plaintiff. Heather Yakely argued the Motion on behalf of Defendants. For the reasons stated herein, the court grants the summary judgment motion of the Defendants.
This action was filed in state court on June 9, 2014, and removed by the Defendants to this court on June 27, 2014. Plaintiff sought, and was granted leave to file an Amended Complaint, which was filed on November 20, 2014. (ECF No. 12). Plaintiff's claims arise out of an encounter with the Defendant Deputy Sheriffs on May 23, 2013. On that date, the officers responded to a report from Plaintiff's sister that he was potentially suicidal, dangerous to others, and in possession of a handgun. The officers used a Taser on Plaintiff and attempted to handcuff him. Plaintiff brings claims of excessive force and failure to train/supervise against the three Spokane County Deputy Sheriffs and their employer, Spokane County, pursuant to 42 U.S.C. § 1983. Plaintiff also asserts a state law claim of negligence.
Defendants argue that the use of the Taser and attempted handcuffing, under the exigent circumstances, did not constitute excessive force, and the individually named Defendants are entitled to qualified immunity. (ECF No. 14, p. 11). Defendants further argue that Plaintiff has produced no probative evidence, including expert testimony, to support the failure to train claim against Spokane County. Defendant Spokane County argues that the evidence shows the Deputies had training on interacting with suicidal individuals. (ECF No. 14, p. 10). Lastly, Defendants argue that the state law negligence claim must fail because Defendants contend they acted in compliance with their polices and procedures and their actions were reasonable under the existing circumstances.
Plaintiff argues the force used was objectively unreasonable. Plaintiff states "that any and all force used against him was objectively unreasonable and a clear violation of the Fourth Amendment." (ECF No. 27, p. 9). Plaintiff contends there are several factual disputes which preclude summary judgment, including: 1) were there black objects on Plaintiff's waistband; 2) did he reach for his waistband; and 3) did Plaintiff yell at the officers to shoot him. On his claim against Spokane County, Plaintiff argues that a question of fact exists as to the failure to train claim. Plaintiff points solely to the deposition testimony of Deputy Jones that he was not aware of a policy that required officers to consider a subject's known medical condition or disability when using force against a person. (ECF No. 27, p. 12).
II. Factual Background
In summary judgment proceedings, the facts are viewed in a light most favorable to the non-movant, in this case the Plaintiff. The following is a summary of the evidence presented in the summary judgment record.
Plaintiff Matthew Kinerson, a 45 year old, has Reflex Sympathetic Dystrophy Syndrome ("RDS") which causes him chronic pain and has hindered his ability to use and control his right arm. (Pltf's St. of Facts ¶ 1 at ECF No. 26). During the evening hours of May 23, 2013, Plaintiff, who resided at his parent's home in Spokane Valley, Washington, was in an argument and confrontation with his father. (Id. at para. 3). Plaintiff's sister, Andrea Montgomery, came to the house and Plaintiff also argued with her. (Id. at para. 4). Plaintiff decided to leave the residence in his car and packed some belongings into a backpack, including a pistol. (Id. at para 5-6).
Ms. Montgomery, Plaintiff's sister, a registered nurse, called 911 at approximately 11:20 p.m. on May 23, 2013, and asked for assistance. She reported that Plaintiff was "suicidal tentatively" and "potentially dangerous to others". (ECF No. 21-1, Transcript of 911 call). She reported to 911 that she believed Plaintiff had a handgun on him. She further told 911 that Plaintiff was "intense", "reactive", and that the situation had "escalated". She also made reference to Plaintiff "snapping and taking a lot of people down with him." She informed the 911 operator that Plaintiff made the statement that if confronted by the police, things would not go well. (ECF No. 20-1). The sister also advised 911 that her brother suffered from a nerve condition that was extremely painful.
Plaintiff drove to a church and parked in the parking lot. From his car he called and spoke with his sister-in-law. Plaintiff received a call from Spokane County Dispatch, which informed him that a family member had called 911. Deputy Sheriffs were dispatched to the location of the Plaintiff and his car. Deputy Thurman was the first to arrive at approximately 11:40 p.m. He parked his vehicle in a manner to block Kinerson's car and illuminated the car with his spotlight. (ECF No. 25-2). He testified at deposition that Plaintiff exited his vehicle without being told to do so and was yelling and screaming. (Id. at p. 14). According to Thurman, Plaintiff yelled, "Fucking shoot me, motherfuckers." Thurman was concerned Plaintiff was trying to engage in "suicide by cop". (Id. at p. 17, 20). Plaintiff denies making that statement.
Thurman testified he did not notice Plaintiff having any difficulty moving his arms. During contact with Dispatch, the Deputies were informed that the Plaintiff had a "medical problem, " and "nerve pain" but the Deputies were not informed of the specifics of the "problem." (See ECF No. 25-5, the CAD log). The CAD (computer-aided dispatch) log was relied upon by both parties at oral argument as evidence of the information relayed through dispatch. Counsel described that a "Txt" entry conveyed that the information was sent via text message to the officers' computers. The sending of the message does not guarantee that it was seen by the officers, if for example the officer was out of his vehicle or otherwise engaged. The Deputies ordered the Plaintiff to drop his gun. Plaintiff claims he told the officers he "did not have a gun". (ECF No. 22, ¶ 3). While outside the car the Plaintiff did not have actual possession of the firearm which was sitting on the front seat of the car. There is no evidence that in response to the officers' orders, Plaintiff informed the Deputies as to the actual location of the firearm.
Deputy Jones next arrived at the scene. He saw Thurman giving verbal commands to Plaintiff. (ECF No. 17, ¶¶ 6-8). Jones heard Plaintiff yell something to the effect of "go ahead and shoot me mother fucker." (Id. at ¶ 9). Again, Plaintiff denies making that statement. Jones noticed Plaintiff's right arm was shaking and observed him move his left arm towards his waist, and also behind his back. Jones observed "black gadgets" on Plaintiff's waistband. (Id. at ¶ 10-11). Jones drew his X26 Taser and shot Kinerson with the Taser in dart-mode. This allowed Jones and Corporal Elliott to approach and attempt to handcuff Kinerson. Jones states that Kinerson was yelling and actively resisting their efforts to handcuff him, and he deployed a second brief, 1-to-2 second, stun with the Taser. (Id. ¶ 13-14). Jones testified that between using the Taser the first and second time, he realized that Kinerson had some sort of medical condition. (ECF No. 25, p. 9 of 54). Jones further testified that he was not aware of any policy concerning the use of a Taser that required him to consider the physical disabilities or medical condition of an individual before using the Taser. (Id. at p. 19-20).
Corporal Elliott, who was also on the scene, described Kinerson similarly as non-compliant, yelling, arguing, and actively resisting. He observed Kinerson reach for his waist with his left arm and pull up his shirt. (ECF No. 18, ¶ 14). Elliott, based upon his prior experience and Kinerson's angry and erratic behavior, positioned himself in anticipation of having to use deadly force. (Id. at ¶ 16). As Elliott drew his firearm, Jones used the Taser. Elliott then assisted Thurman in attempting to handcuff Kinerson.
Kinerson does not dispute the basic course of events that occurred on May 23, 2013--that he got in an argument with family members; that family members called 911 expressing concern as to the mental state and safety of Kinerson, police officers, and the public in general; that he drove to a parking lot and had in his possession a firearm and a knife; that officers responded; that a Taser was used; and officers attempted to handcuff him. Plaintiff does dispute some of the details. Plaintiff contends he was not angry and belligerent when the officers arrived. He claims he never yelled at the officers to shoot him. (Plft's St of Facts, ECF No. 26). Plaintiff claims he put his hands up, and did not reach for his waist band. However, Plaintiff states that he did not have "use and control" of his right arm and that his right arm was "beginning to fall toward my waist". (ECF No. 22, ¶ 1 & 10). Plaintiff admits he "reached down" with his left hand and pulled up the front of his shirt. (ECF No. 22, ¶ 10), Plaintiff agrees that the Taser was used, the officers attempted to handcuff him, and used the Taser again. He further states that while attempting to handcuff him, "at least one of the officers started kicking me." (ECF No. 22, ¶ 11). Kinerson does not contend that this "starting" of kicking was unrelated to the attempt to control him, that he suffered any injury of any sort from the alleged kicking, or that he required any medical treatment for any related injury. Both Thurman and Elliot have averred in declarations that they did not strike or kick Kinerson. (ECF No. 18 & 19). Plaintiff has submitted his own Declaration (ECF No. 22) and the Declarations of two neighbors, Tom Donahue (ECF No. 24 and Julie Eddy (ECF No. 23). The latter two state they believe the officers used excessive force on the Plaintiff. However, those persons were not aware of the circumstances giving rise to the officers contact with the Plaintiff including the call of the Plaintiff's sister to 911 advising that Plaintiff was suicidal and a risk to others, including, police, if contacted by the police.
When the deputies recognized Plaintiff's medical condition, the officers ceased in their attempt to handcuff him, and removed the one handcuff from his left wrist. They then helped Kinerson to a bench and waited for medical personnel to arrive. (Deft St. of Fact #50 - not disputed). Plaintiff was examined at the hospital and released within a few hours. (ECF No. 25, ¶ 27).
III. Motion to Strike
Defendants have filed a Motion to Strike (ECF No. 34) the declarations of Julie Eddy and Tim Donahue (ECF No. 23 & 24) that were filed in support of Plaintiff's opposition to summary judgment. Defendant contends that these two alleged eye witnesses were not disclosed in initial disclosures, and that their names were not provided in discovery until February 2, 2015. This was after the January 3, 2015 deadline set in the Scheduling Order for Plaintiff to file his final list of trial witnesses. Plaintiff did not timely file his list of trial witnesses, but rather belatedly filed it on May 8, 2015.
Defendants contend that although Eddy and Donahue were disclosed by name in February 2015, Defendants were not provided contact information until March, and Eddy and Donahue were unable to be reached using that information. As the deadline for completing discovery was April 1, 2015, and the dispositive motion deadline was April 10, 2015, Defendants contend they were denied an opportunity to conduct discovery concerning these witnesses.
Plaintiff failed to respond to the Motion to Strike. Plaintiff's lack of response could be deemed consent to the entry of an adverse Order. Local Rule 7.1 (d)("The failure to comply with the requirements of LR 7.1(a) or (b) may be deemed consent to the entry of an Order adverse to the party who violates these rules."). The court's Scheduling Order provided a deadline of January 3, 2015, for disclosing witnesses and further provided that "only listed witnesses may testify." (ECF No. 8). Plaintiff has not attempted to explain why the witnesses were not timely disclosed, or dispute the dates on which they were disclosed. Pursuant to Fed.R.Civ.P. 37(c)(1): "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Plaintiff ...