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Ibarra v. Snohomish County

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

April 3, 2017

PETE IBARRA III, Plaintiff,
v.
SNOHOMISH COUNTY, et al., Defendants.

          ORDER DENYING SECOND MOTION FOR SUMMARY JUDGMENT

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is Marshal Kathy Marino and Marshal James Simoneschi's (collectively, “the Marshals” or “Defendants”) second motion for summary judgment. (2d MSJ (Dkt. # 43).) The court has considered the motion, Plaintiff Pete Ibarra III's opposition to the motion (Resp. (Dkt. # 45)), Defendants' reply in support of their motion (Reply (Dkt. # 48)), the relevant portions of the record, and the applicable law. Being fully advised, [1] the court DENIES Defendants' motion for summary judgment for the reasons set forth below.

         II. BACKGROUND

         This case arises from an encounter between Mr. Ibarra and Snohomish County (“the County”) law enforcement.[2] (See Compl. (Dkt. # 1) ¶¶ 11-19; 2d Ibarra Decl. (Dkt. # 47) ¶¶ 3-9.) On April 15, 2015, Mr. Ibarra was at the County courthouse complex in Everett “to obtain the court clerk's signature on some anti-harassment materials for a case.” (2d Ibarra Decl. ¶ 3; see also 2d Bides Decl. (Dkt. # 44) ¶ 3, Ex. A (“Marino Rep.”) at 3-4.) He contends that he was on his way out of the building when two uniformed marshals informed him that their supervisor, Marshal Marino, wanted to speak with him. (2d Ibarra Decl. ¶¶ 4-5; see also Marino Rep. at 3.) Marshal Marino arrived and explained to Mr. Ibarra that an attorney in trial at the courthouse complex, Cassandra Lopez de Arriaga, had reported that Mr. Ibarra was stalking her.[3] (See 2d Ibarra Decl. ¶ 6; Marino Rep. at 3-4.) Mr. Ibarra asserts that after briefly discussing why she stopped him, Marshal Marino ordered him to leave the courthouse and never return. (See 2d Ibarra Decl. ¶¶ 7-8; see also Marino Rep. at 4 (“ . . . I told him he needed to leave.”).)

         At this point, the parties' accounts of the incident diverge. Mr. Ibarra asserts that Marshal Marino said, “Do not come back to this courthouse little man, or you're going to go to jail.”[4] (2d Ibarra Decl. ¶ 8.) Mr. Ibarra responded, “I might be a little man, but at least I do not have to portray being a man.”[5] (Id.; Ibarra Dep. at 62:19-24.) According to Mr. Ibarra, his comment caused Marshal Marino to “snap, ” come down the stairs to where Mr. Ibarra was standing, grab his shirt and arm, force his left arm behind his back, and kick his shins. (2d Ibarra Decl. ¶ 9; Ibarra Dep. at 63:1-5, 7-9.) Mr. Ibarra also asserts that a male officer-who Defendants assume to be Marshal Simoneschi based on Mr. Ibarra's account-then came up behind Mr. Ibarra and grabbed his hair, which lifted Mr. Ibarra off his feet. (2d Ibarra Decl. ¶ 9; Ibarra Dep. at 63:11-13; 2d MSJ at 18 (“Assuming without conceding, . . . that Marshal Simoneschi was the person grabbing [Mr. Ibarra's] hair . . . .”).) The Marshals then escorted Mr. Ibarra to another area of the courthouse (Ibarra Dep. at 67:6-9) where Mr. Ibarra and the Marshals were “all standing there trying to catch [their] breath for a second” when “some other officer” approached (id. at 67:17-18, 20).

         According to Mr. Ibarra, that officer asked, “does [Mr. Ibarra] need to go down?” (Id. at 67:25; 2d Ibarra Decl. ¶ 10.) Mr. Ibarra does not state whether the Marshals responded, but contends that the unidentified officer quickly took Mr. Ibarra “down face first” and kicked his legs out from under him. (Ibarra Dep. at 68:4-6; 2d Ibarra Decl. ¶ 10.) Mr. Ibarra contends that the officer then grabbed Mr. Ibarra's wrist, “stuck his knee” in Mr. Ibarra's back, and grabbed Mr. Ibarra by the ear. (Ibarra Dep. at 68:7-11; 2d Ibarra Decl. ¶ 10.) The officer then struck Mr. Ibarra's head on the ground several times. (2d Ibarra Decl. ¶ 10; see also Ibarra Dep. at 68:10-11.) Mr. Ibarra contends that he defecated in his pants during this assault. (2d Ibarra Decl. ¶ 15; Ibarra Dep. at 68:19-21.)

         The Marshals describe a different set of facts beginning from the time Marshal Marino told Mr. Ibarra to leave the courthouse. After Marshal Marino told Mr. Ibarra to leave, the Marshals say that Mr. Ibarra began walking down the stairs but then stopped, turned around, squared up to Marshal Marino, and stared at her.[6] (Marino Decl. (Dkt. # 15) ¶¶ 7-8.; see also Simoneschi Decl. (Dkt. # 13) ¶ 4.) Marshal Marino interpreted this stance as a “pre-attack” posture and approached Mr. Ibarra to escort him out. (Id. ¶ 8.) She again ordered Mr. Ibarra to leave, but he “refused to leave and stood in the stairwell partially blocking the traffic.” (Id.) She and Marshal Simoneschi then took Mr. Ibarra by the arm, but he resisted. (Id.) He grabbed the handrail, screamed, and tensed his muscles to prevent the Marshals from moving him. (Id.) Marshal Marino stood below Mr. Ibarra on the stairs and was in danger of falling backwards down the stairs because of where she was standing and Mr. Ibarra's resistance. (Id.; Simoneschi Decl. ¶ 4; Scott Decl. (Dkt. # 14) ¶ 4.) With the assistance of a corrections officer, the Marshals brought Mr. Ibarra down to the ground floor where they put him face down on the carpet and handcuffed him. (Marino Decl. ¶ 9; Simoneschi Decl. ¶ 4; Scott Decl. ¶ 4.) Defendants deny that Marshal Marino called Mr. Ibarra a “little man” or that the Marshals pulled Mr. Ibarra's hair, kicked him, threw him to the ground, kneed him, or slammed his head into the ground. (See Marino Decl. ¶ 10; Simoneschi Decl. ¶ 5; Scott Decl. ¶ 5.) They also deny that Mr. Ibarra defecated in his pants. (See Marino Decl. ¶ 10; Simoneschi Decl. ¶ 5; Scott Decl. ¶ 5.)

         After handcuffing Mr. Ibarra, Marshal Marino transported him to the County jail and booked him for disorderly conduct. (Marino Decl. ¶ 9.) Nurse Autumn Kostelecky interviewed and assessed Mr. Ibarra when he arrived at the jail. (See Kostelecky Decl. (Dkt. # 11) ¶¶ 2-4.) Although Ms. Kostelecky avers that she “did not observe any contusions, erythema, edema, or abrasions to [Mr. Ibarra's] shin or head” (id. ¶ 5), Mr. Ibarra asserts that he told Ms. Kostelecky that the Marshals had injured him (2d Ibarra Decl. ¶ 14). Ms. Kostelecky states that she did not observe that Mr. Ibarra defecated in his pants and that he did not inform her he had done so. (Kostelecky Decl. ¶ 5.) Mr. Ibarra explains, “I did not tell the nurse that I pooped in my pants because I was too embarrassed.” (2d Ibarra Decl. ¶ 15.) After approximately five hours, Mr. Ibarra posted bond and was released from jail. (Id. ¶ 16.) The County did not file charges against him. (Id. ¶ 18.)

         Two weeks later, Mr. Ibarra visited a physician's assistant named David Bender. (1st Bides Decl. (Dkt. # 16) ¶ 4 (“Claim Form Attach. 3”) at 1.) Mr. Bender diagnosed Mr. Ibarra with the following injuries: (1) head contusion, (2) multiple leg contusions, and (3) lumbar strain. (Id. at 2.) Mr. Bender's notes do not indicate the extent to which he examined Mr. Ibarra (see Id. at 1-4), and neither side has submitted deposition testimony or a declaration from Mr. Bender or any other medical providers (see Dkt.). Since the incident, Mr. Ibarra contends that he lives with “continuous neck, head, and back pain” for which he has seen his regular physician and a neurologist, changed the “medication dosage” for his fibromyalgia, and “received injections.” (2d Ibarra Decl. ¶ 19.) He also contends that he has difficulty sleeping due to the incident. (Id. ¶ 20.)

         Mr. Ibarra filed this lawsuit on March 3, 2016. (Compl. at 1.) He asserted federal claims under 42 U.S.C. § 1983 for unlawful seizure and arrest without probable cause in violation of the Fourth Amendment; excessive force in violation of the Fourth Amendment; and retaliatory arrest in violation of the First, Fourth, and Fifth Amendments. (Id. at 5-8.) He sought to hold the County liable for these alleged violations under Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id. at 8-10.) In addition, he asserted state law claims for false arrest and imprisonment, assault and battery, and intentional infliction of emotional distress. (Id. at 10-11.) He sought to hold the County vicariously liable for the alleged state law violations. (Id. at 12.)

         On August 9, 2016, the court granted summary judgment on Mr. Ibarra's federal claims for unlawful seizure and arrest, retaliatory arrest, and local government liability and his state claims for false arrest and imprisonment and intentional infliction of emotional distress. (See 8/9/16 Order at 29.) The court denied summary judgment on Mr. Ibarra's federal excessive force and state law assault and battery claims. (See id.) The court later denied Mr. Ibarra's motion for reconsideration of the court's grant of summary judgment on Mr. Ibarra's state law false arrest and imprisonment and retaliatory arrest claims. (11/4/16 Order (Dkt. # 31).)

         On February 14, 2017, Defendants filed this second motion for summary judgment. (See generally 2d MSJ.) Defendants contend that since filing their first motion for summary judgment, “discovery has been completed, which has narrowed and clarified [Mr. Ibarra's] allegations” and “new case law regarding qualified immunity has been published by the United States Supreme Court and the Ninth Circuit.” (Id. at 1.) Defendants seek summary judgment on Mr. Ibarra's federal excessive force claim because, in their view, the doctrine of qualified immunity bars that claim. (Id.) Defendants also request that if the court grants summary judgment on the federal claim, the court decline to exercise supplemental jurisdiction over Mr. Ibarra's remaining state law assault and battery claim. (Id. at 21.) The court now considers Defendants' motion.

         III. ANALYSIS

         A. Legal Standard

         Summary judgment is appropriate if the evidence shows “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine' only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49).

         The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of a dispute of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party will bear the ultimate burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473. If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a fact finder could reasonably find in the nonmoving party's favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252.

         The court is “required to view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). The court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these are “jury functions, not those of a judge.” Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

         Furthermore, the court may consider only materials that are capable of being presented in an admissible form. See Fed. R. Civ. P. 56(c)(2); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). “Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid summary judgment.” Estrella v. Brandt, 682 F.2d 814, 819-20 (9th Cir. 1982); see also Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations unsupported by factual data cannot defeat summary judgment.”). Nor can the plaintiff “defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

         B. Motion for ...


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