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Osborne v. Vancouver Police

United States District Court, W.D. Washington, Tacoma

March 13, 2017



          Karen L. Strombom United States Magistrate Judge.

         Defendants Clark County Deputy Alan Earhart and Clark County Sheriff Deputy James Eastman assert that they are entitled to qualified immunity and seek dismissal of Plaintiff Lucas Obsborne's claims against them on that basis. The Clark County Sheriff's Office[1] moves for dismissal on the grounds that it is not a legal entity capable of being sued in a 42 U.S.C. § 1983 action. Dkt. 68. The Clark County Defendants' motion for summary judgment was filed on December 20, 2016. Id. On the same day, the Clark County Defendants provided notice to plaintiff pursuant to Woods v. Carey, 684 F.3d 934, 935, 940-41 (9th Cir. 2012). Dkt. 52. Mr. Osborne failed to timely file a response to the motion - his response would have been due January 16, 2017. Other filings submitted by Mr. Osborne, which the Court has not considered as appropriate and timely responses to the motion, are discussed in more detail below.

         Having reviewed the motion for summary judgment, declarations, the Amended Complaint (Dkt. 23), and balance of the record, and for the reasons set forth herein, the undersigned recommends that the Clark County Defendants' motion for summary judgment be granted.


         On January 9, 2017, the Court received letters from Mary Eibl and Liana Graf with their description of Mr. Osborne's arrest. Dkts. 75 and 76. Although they purport to be affidavits, they are not signed under oath and they are not attached to a motion or response. Hearsay cannot be considered in the context of summary judgment. Orr v. Bank of Am., 285 F.3d 764, 778-79 (9th Cir. 2002). Both letters are unsworn, out-of-court statements that are being offered to prove the truth of the matters asserted therein. Accordingly, the letters have not been considered.

         On January 27, 2017, Mr. Osborne filed a “Motion to Summary Judgment With Disputed Facts” and noted the filing as a motion for consideration on February 10, 2017. Dkt. 80. It is not entirely clear if Mr. Osborne intended his filing to be a separate motion for summary judgment or a response to one of the then pending motions for summary judgment (Dkts. 52, 57, 68), although his filing was not timely as to any of the motions. The Court declined to consider the filing as a response to the first two motions for summary judgment (Dkts. 52 and 57), which are the subject of separate and pending reports and recommendation. The Court also notes that Mr. Osborne's filing focuses almost primarily on whether police had lawful authority to enter the residence - a fact that is not at issue in Mr. Osborne's amended complaint (and for which he has no standing to assert as he was at the home in question in violation of a No Contact Order). The only reference to one of the Clark County defendants is the conclusory statement that Sgt. Eastman engaged in excessive force.[2]

         Mr. Osborne also appears to request additional time to assert “a negligence claim that can take place and [sic] supplemental claim.” Dkt. 80, p. 4. (Dkt. 80 at 4.) Mr. Osborne never asserted anything in his pleadings that would have put defendants on notice that he intended to pursue a state law claim of negligence. Moreover, a plaintiff cannot raise a new claim for the first time in opposition to summary judgment. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“where … 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”); Pickern v. Pier 1 Imports, Inc., 457 F.3d 963, 968-69 (2006) (same).

         Finally, Mr. Osborne appears to request additional time to obtain the sworn testimony of Ms. Moreno, Liana Graf (his mother), and Mary Eibl (his mother's caregiver). Dkt. 80, pp. 4-5. To obtain relief under Rule 56(d), a party “must show that (1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are ‘essential' to resist the summary judgment motion.” State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment. Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129-30 (9th Cir. 2004). Mr. Osborne merely states that these persons were “all [there] that day, ” but fails to specify in affidavit form what each would say and how this would successfully defeat summary judgment. Moreover, a district court can properly deny a request for a continuance if the party seeking additional time “has failed diligently to pursue discovery in the past.” Id. (citations and internal quotation marks omitted). Other than what appears to be five days in segregation, Mr. Osborne has not articulated any reason why he has been unable to conduct discovery or obtain sworn statements from his own witnesses within the discovery time allowed by the Court (which expired in November 2016) or within the additional time Mr. Osborne requested and was granted to respond to the prior motions for summary judgment.

         Despite having ample time to engage in discovery, respond to the summary judgment motions, and provide competent summary judgment evidence, Mr. Osborne has failed to do so. There is no basis for a Rule 56(d) continuance.


         Mr. Osborne's only claim is that all the named defendants used excessive force when they arrested him on October 2, 2015. In his amended verified complaint, Mr. Osborne alleges that Vancouver Police and Clark County officers came to the residence of his girlfriend, Desiree Moreno, searching for him and although they were told repeatedly that Mr. Osborne was not there and Ms. Moreno made multiple calls to 911 asking for the officers to leave the property, they arrested Ms. Moreno and located Mr. Osborne in the master bedroom. Mr. Osborne claims that he did not resist arrest or pose any threat but states that he put his hands in the air and did as he was directed. He alleges that even though he was not resisting, the officer threw him against the television, threw him on the bed, and while on the bed, double-lock handcuffed him, kneed him in the stomach, and threw him to the ground. “While still handcuffed and on the ground with my face slamed [sic] into the ground, Detective Ahn jumped on his back injuring him again and then slammed his metal baton in his neck.” Mr. Osborne further alleges that after the officers took him outside, they refused him access to shoes and slammed him up against the house and then against the SUV in the driveway. Dkt. 23 (Amended Complaint), at 3. Mr. Osborne seeks damages for back and knee pain. Id., at 4.[3]

         Mr. Osborne's amended complaint contains no specific factual allegations against Alan Earhart or James Eastman and no factual allegations at all against the Clark County Sheriff's Office.


         Mr. Osborne has been arrested in Clark County eleven times since 2002 for numerous domestic violence (DV) assaults and other charges. Dkt. 72, Declaration of Jane E. Vetto, Exhibit 1. On July 30, 2015, Mr. Osborne was arrested for domestic violence assault and Clark County District Court placed a No Contact Order on him, which prohibited any sort of contact between Mr. Osborne and girlfriend, Desiree Moreno, until July 30, 2020. Id., Exhibit 2. On October 2, 2015, Sgt. James Eastman and Deputy Alan Earhart were called to assist the Vancouver Police Department (VPD) in the arrest of Mr. Osborne at the residence of Desiree Moreno located at 15311 NE 87th Street in Vancouver, Washington. Dkt. 70, Declaration of James Eastman, ¶ 3; Dkt. 69, Declaration of Alan Earhart, ¶ 3. Both officers were informed of the fact that Mr. Osborne was at Ms. Moreno's resicence in violation of a valid no contact order. Id.

         When Sgt. Eastman arrived, Deputy Earhart was stationed in the front yard in a position where he could see the front and one side of the house. Dkt. 70, Eastman Decl., ¶ 4. VPD Detective Charlie Ahn was at the front door and Department of Corrections Community Corrections Officer Joshua Gonzales was on the other side of the house. Id. Sgt. Eastman spoke with Deputy Earhart, who told him that Ms. Moreno was refusing entry and the VPD was preparing a search warrant. Dkt. 70, Eastman Dec., ¶ 4. Sgt. Eastman went to the front door where VPD Detective Charlie Ahn was standing and holding the door open with his foot on the jam. Ms. Moreno was just inside the door. He then confirmed that the containment of the residence was secure and joined Deputy Earhart at his position in the front yard. Id. As this was a VPD arrest, Deputy Earhart and Sgt. Eastman were there to provide back up. Id.

         Sgt. Andy Hamlin, with the VPD Domestic Violence Unit, arrived at the scene and then joined Detective Ahn at the front door. Dkt. 70, Eastman Dec., ¶ 6. A few minutes later, Detective Ahn escorted Ms. Moreno out to Deputy Earhart's patrol car in handcuffs. He placed her in the car and then motioned for Sgt. Eastman to join him at the front of the car for a confidential conversation. ld. Sgt. Eastman was informed that Detective Ahn and Sgt. Hamlin had negotiated a scenario with Ms. Moreno “whereby they would appear to arrest her and go into the house after, when, in fact, the arrest was a ruse and Ms. Moreno had given them permission to enter the house to arrest Lucas Osborne.” Dkt. 70, Eastman Decl., ¶ 6. VPD asked Sgt. Eastman and Deputy Earhart to release Ms. Moreno once VPD had Mr. Osborne in custody and had left the residence. Sgt. Eastman remained outside watching Ms. Moreno in the patrol car. At no time did Sgt. Eastman ever speak with, interact with, or in any way touch or come in contact with Mr. Osborne. Id., ¶ 8. Sgt. Eastman was present when the officers brought Mr. Osborne out and placed him in a VPD car. He testified that Mr. Osborne's eyes were bloodshot and watery, that he had an odor of intoxicants on his person, his speech was slurred, and he appeared intoxicated. Id., ¶ 7.

         Deputy Earhart testified that Ms. Moreno wanted law enforcement to fake arrest her and he verbally verified this with her when she was brought to his patrol car. She allowed law enforcement to enter her residence, told them the last known location of Mr. Osborne (the bedroom), and knew that the officers intended to arrest him. Dkt. 69, Earhart Decl., ¶ 4.

         Sgt. Hamlin, Detective Ahn and Deputy Earhart then entered the house, loudly announced their presence, and began a slow clear. Dkt. 69, Earhart Decl., ¶ 4. As Deputy Earhart cleared the kitchen and living room area, Deputy Earhart heard Sgt. Hamlin and Detective Ahn yell commands to an unknown person. Id. Deputy Earhart went to their location at a back bedroom and saw Mr. Osborne at the open doorway to a closet where he'd been hiding. Deputy Earhart heard Sgt. Hamlin and Detective Ahn order Mr. Osborne to lie on the floor as he was under arrest. Mr. Osborne refused to comply and yelled obscenities at them. It appeared to Deputy Earhart that Mr. Osborne intended to have a physical altercation with them. One of the VPD officers grabbed Mr. Osborne and attempted to force him to the ground all the while giving him verbal commands. Mr. Osborne refused to comply and attempted to remain in a standing position. Both VPD Officers then used body weight and strength to force Mr. Osborne to the floor. Id. Deputy Earhart states that this all occurred very quickly between three men in a small space. Mr. Osborne ended-up in a prone position near the bedroom door where Deputy Earhart had been standing in the hallway. He saw Mr. Osborne resist all attempts to control his movements and handcuffing. Id.

         In addition to his service pistol, Deputy Earhart also carries less lethal weapons of pepper spray and an extendable baton. Dkt. 69. Earhart Dec., ¶ 5. After Mr. Osborne was on the floor in a prone position, Deputy Earhart assisted by holding him in place with his baton. Id. The VPD Officers were then able to place handcuffs on Mr. Osborne. At no time did Deputy Earhart strike Mr. Osborne with baton or hands. The baton was used only as a tool to control and limit Mr. Osborne's movement so he could be placed in handcuffs. Once Mr. Osborne was handcuffed, Deputy Earhart stopped his efforts to control him. Id.

         After they cuffed him, the VPD officers took Mr. Osborne to be booked in the jail. Dkt. 69, Earhart Decl., ¶ 12. After Mr. Osborne was gone, Sgt. Eastman and Deputy Earhart released Ms. Moreno from her “fake” arrest. Dkt. 69, Earhart Decl., ¶ 6. As VPD arrested Mr. Osborne, neither Sgt. Eastman nor Deputy Earhart completed an arrest report. Dkt. 69, Earhart Decl., ¶ 7; Dkt. 70, Eastman Decl., ¶ 9. All reports and statements were completed by VPD Domestic Violence detectives. Id.; see also, Dkt. 71, Vetto Decl., Exhibit 3.

         On June 8, 2016, Mr. Osborne pled guilty to several charges. Dkt. 71, Vetto Decl, Exhibit 4. In his statement filed with the Court with his plea, Mr. Osborne stated:

On or about October 2, 2015, in Clark County, Washington, with knowledge that the Clark County District Court had previously issued a no contact order pursuant to RCW 1099 in case 5 is the 017-7812, I knowingly violated the order by having contact with Desiree Merino, and at the time I had 2 previous no contact order violation convictions. Also, at the same time and place, I entered Desiree Merino's dwelling located at 15311 NE. 87th St., Vancouver, WA, and that was unlawful as I was prohibited so by the no contact order, and I had the intention of having contact with Desiree in violation of the order when I entered the dwelling. Also, between November 11, 2015 and November 24, 2015, I attempted to induce Desiree to either testify falsely or to withhold testimony or absent herself from the legal proceedings that were ongoing. Desiree is someone I have been in a dating relationship with.

         Dkt. 71, Vetto Decl., Exhibit 4, p. 14. In making this admission, Mr. Osborne pled guilty to violating a domestic violence No Contact Order, residential burglary-domestic violence, and tampering with a witness-domestic violence. ld.

         When asked why he was suing Deputy Earhart, Mr. Osborne testified in his deposition:

Q: Okay. I'm asking you about Earhart. You said you don't know what he looked like. Is it fair to say you ...

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