United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
L. Strombom United States Magistrate Judge.
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 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.
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.
BY PLAINTIFF AFTER 12/20/16
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.
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.
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).
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
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.
CLAIMS AND ASSERTED FACTS
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.
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
STATEMENT OF FACTS
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.
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.
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.
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.,
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.
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.
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.
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
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.
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