United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Robert John
Preston's objections (Dkt. No. 44) to the report and
recommendation of the Honorable Mary Alice Theiler, United
States Magistrate Judge (Dkt. No. 42). Judge Theiler
recommended that Defendant Jeffrey Miller's motion for
judgment on the pleadings, (Dkt. No. 34), be granted. (Dkt.
No. 42.) For the reasons explained herein, the report and
recommendation (Dkt. No. 42) is ADOPTED, Plaintiff's
objections (Dkt. No. 44) are OVERRULED, and Defendant
Miller's motion for judgment on the pleadings (Dkt. No.
34) is GRANTED.
30, 2014, Plaintiff encountered and ran from Defendant
Snohomish County Deputy Ryan Boyer at an Everett Park-n-Ride.
(Dkt. No. 10 at 6.) Deputy Boyer gave chase, forcibly
subdued, and eventually rendered Plaintiff unconscious.
(Id.) Plaintiff claimed he had a seizure at some
point during this struggle. (Id.) Being unconscious,
Plaintiff was forced to rely solely on reports from other
officers at the scene to describe what happened next.
(Id. at 9-10.) Defendant Snohomish County Captain
Jeffrey Miller drove to the scene and saw Deputy Boyer
struggling to subdue Plaintiff, who was flailing around and
seemed to be ignoring Deputy Boyer's instructions.
(Id.) During the struggle, Captain Miller saw Deputy
Boyer kick Plaintiff's side twice before he secured
Plaintiff's arms. (Id.) Captain Miller then ran
over and pinned Plaintiff's legs down while Deputy Boyer
handcuffed him. (Id.) Plaintiff sustained serious
injuries during the confrontation, and was taken to the
hospital for further treatment. (Dkt. No. 44 at 5-7.)
brought a 42 U.S.C. § 1983 civil rights action against
Deputy Boyer and Captain Miller. (Dkt. No. 10.) At issue here
are Plaintiff's claims against Captain Miller
(hereinafter “Defendant”). Plaintiff alleges that
Defendant violated his Fourth, Fifth, Eighth, and Fourteenth
Amendment rights by (1) using excessive force to subdue him,
(2) failing to stop Deputy Boyer from doing the same, and (3)
falsifying his police report. (Dkt. No. 10 at 5.) Defendant
Miller brought a Rule 12(c) motion for judgment on the
pleadings for failure to state a claim. (Dkt. No. 34.) Judge
Theiler recommended that the motion be granted without leave
to amend. (Dkt. No. 42 at 12-13.) Plaintiff objected to Judge
Theiler's recommendations on the duty to intervene and
falsification of police report claims. (Dkt. No. 44 at 2-7.)
to a magistrate judge's report and recommendations are
reviewed de novo. 28 U.S.C. § 636(b)(1). A motion for
judgment on the pleadings may be brought “after the
pleadings are closed-but early enough not to delay
trial.” Fed.R.Civ.P. 12(c). “A Rule 12(c) motion
challenges the sufficiency of the opposing party's
pleadings and operates in much the same manner as a motion to
dismiss under 12(b)(6.)” Morgan v.
Yolo, 436 F.Supp.2d 1152, 1154-55 (E.D. Cal. 2006).
“Judgment on the pleadings is proper when the moving
party clearly establishes on the face of the pleadings that
no material issue of fact remains to be resolved and that it
is entitled to judgment as a matter of law.” Hal
Roach Studios, Inc. v. Richard Feiner &
Co., 896 F.2d 1542, 1550 (9th Cir. 1989). The court
construes all material allegations in the light most
favorable to the non-moving party. Deveraturda v.
Globe Aviation Sec. Servs., 454 F.3d 1043,
1046 (9th Cir. 2006). Thus, a “[m]otion for Judgment on
the Pleadings may consequently be granted if, after assessing
both the complaint, plus matters for which judicial notice is
proper, it appears ‘beyond doubt that the [non-moving
party] cannot prove any facts that would support his claim
for relief.'” Morgan, 436 F.Supp.2d at
1155 (quoting R.J. Corman Derailment Services, LLC v.
Int'l Union of Operating Engineers, Local 150,
AFL-CIO, 335 F.3d 643, 647 (7th Cir.2003).
Duty to Intervene
argues that Defendant had a duty to intervene and prevent
Deputy Boyer from committing further unconstitutional abuses.
(Dkt. No. 44 at 2-5.) For the purposes of ruling on the
instant motion, the Court assumes without deciding that
Deputy Boyer's use of force was unconstitutional.
officers have a duty to intercede when their fellow officers
violate the constitutional rights of a suspect or other
citizen.” Cunningham v. Gates, 229
F.3d 1271, 1289 (9th Cir. 2000). An officer who chooses
inaction violates a constitutional right that “is
analytically the same as the right violated by the person who
strikes the blows.” United States v.
Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994). To be
liable, an officer must have had “a realistic
opportunity” to intercede. Cunningham, 229
F.3d at 1289. Whether or not an opportunity is realistic is
often a matter of timing. For example, courts have found that
there can be no realistic opportunity to intervene if the
officer was not present when the violation took place, or
even if they are present, if the constitutional violation
happens too quickly for them to prevent. See,
e.g., id. at 1290; Knapps v.
City of Oakland, 647 F.Supp.2d 1129, 1159-60 (N.D.
argued that Defendant could have limited the actions Deputy
Boyer took in his presence. (Dkt. No. 38 at 7.) However, the
facts do not support this argument. Specifically, Plaintiff
alleges that Defendant arrived at the Park-n-Ride just in
time to see Deputy Boyer (1) stand over Plaintiff, (2) with
his Taser deployed, and (3) kick Plaintiff's side twice
after he failed to comply with his verbal commands. (Dkt. No.
10-1 at 12.) His objections to the report and recommendation
do little more than repeat these allegations. (Dkt. No. 44 at
2-5.) Based on the facts alleged, taken as true, the Court
finds that Defendant did not have a realistic opportunity to
intervene because he was either en route to the scene or in
his vehicle when the alleged constitutional violation
occurred. Accordingly, Plaintiff's objections to Judge
Theiler's recommendation to dismiss the failure to
intervene claims are overruled.
Falsification of Police Report
next argues that Defendant altered his police report. (Dkt.
No. 10 at 10; Dkt. No. 44 at 6-7.) In support, Plaintiff
alleges that both Defendant and Snohomish County Deputy L.M.
Zelaya claim to have arrived at approximately the same time,
but Deputy Zelaya's report does not mention
Defendant's involvement in Plaintiff's arrest. (Dkt.
No. 10 at 10.) In his response to Defendant's motion,
Plaintiff further claimed Defendant lied when he (1) wrote
that Plaintiff responded to his verbal commands during
handcuffing, and (2) omitted that Plaintiff was unconscious
and needed to be placed on ...