United States District Court, W.D. Washington, Seattle
ORDER DENYING SECOND MOTION FOR SUMMARY
L. ROBART United States District Judge
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,
court DENIES Defendants' motion for summary judgment for
the reasons set forth below.
case arises from an encounter between Mr. Ibarra and
Snohomish County (“the County”) law
enforcement. (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. (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.”).)
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.” (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.” (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
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.)
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. (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.)
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. ¶
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.)
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.)
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).)
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
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).
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.
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)).
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).
Motion for ...