United States District Court, W.D. Washington, Tacoma
B. Leighton United States District Judge.
MATTER is before the Court on its own motion following the
Ninth Circuit's dismissal of Plaintiff Verdier's
interlocutory appeal for lack of jurisdiction [Dkt. #40]. The
Court had previously stayed the case and denied as moot all
pending motions based on the appeal [Dkt. #38]. The
then-pending motions included defendants' Motion for
Summary Judgment [Dkt. #21], Verdier's attorney's
Motion to Withdraw [Dkt. #24], and Verdier's Motion for a
Stay or for a Continuance and Judgment on Tribunal [Dkt.
#28]. In light of the appeal's dismissal, the motions are
now ripe for resolution.
latter motion relates to Verdier's claim that his
attorney did not, as ordered, work with him on the response
to the pending summary judgment motion. Verdier seeks
sanctions and additional time to respond, due to the (then)
pending appeal. Any dispute between Verdier and his attorney
is not the subject of this lawsuit. Verdier's Motion for
a stay or a continuance, and for sanctions on his attorney
for failing to help Verdier respond to the summary judgment
motion [Dkt. #28], is DENIED.
Court had previously indicated that once a response to the
summary judgment motion was filed, the attorney's motion
to withdraw would be granted. Whether he worked with Verdier
on it or not, the response was in fact filed. [Dkt. #29].
Verdier also filed his own Response [Dkt. #30]. The Motion to
Withdraw [Dkt. #24] is GRANTED, and attorney Lou Rousso is no
longer representing Mr. Verdier. Verdier is pro se
for all purposes until and unless he obtains new counsel.
leaves the summary judgment motion. The underlying dispute
involves a three-party neighborhood quarrel the night of
August 17, 2012, involving the Bosts, Martin, and Verdier. At
some point, Verdier turned off the Bosts' water supply.
Between the three of them, the parties called 9-1-1 a total
of five times. In one of the calls, Verdier threatened to
“blow away” his neighbor (apparently, Martin) if
he came on Verdier's property. Defendant Deputy Walker
responded, cuffed Verdier, took his rifle, disabled it and
put it in his car. Walker convinced Verdier to turn the water
back on, but Verdier admitted the threat to kill his
neighbor. Walker arrested him and started to take him in, but
he called his Sergeant, who said there was not probable cause
and to take him home. Walker did so, and Verdier sued.
asserts §1983 claims for violations of his
constitutional rights: a Second Amendment claim for Walker
temporarily taking his gun, a Fourth Amendment claim for
wrongful seizure, and a Fifth Amendment claim for
Walker's “taking” his water right. He asserts
similar claims under the Washington Constitution.
and Clark County seek summary judgment on all of
Verdier's claims. The Court has reviewed the motion and
all associated filings and evidence, Verdier's
attorney's response and Verdier's own response, and
the Defendants' Reply.
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether an issue of fact
exists, the Court must view all evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Anderson Liberty
Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v.
Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine
issue of material fact exists where there is sufficient
evidence for a reasonable factfinder to find for the
nonmoving party. Anderson, 477 U.S. at 248. The
inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. At 251-52. The moving party bears
the initial burden of showing that there is no evidence which
supports an element essential to the nonmovant's claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
the movant has met this burden, the nonmoving party then must
show that there is a genuine issue for trial.
Anderson, 477 U.S. at 250. If the nonmoving party
fails to establish the existence of a genuine issue of
material fact, “the moving party is entitled to
judgment as a matter of law.” Celotex, 477
U.S. at 323-24.
immunity “shields an officer from suit when she makes a
decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she
confronted.” Brosseau v. Haugen, 543 U.S. 194,
198 (2004). The Supreme Court has endorsed a two-part test to
resolve claims of qualified immunity: a court must decide (1)
whether the facts that a plaintiff has alleged “make
out a violation of a constitutional right, ” and (2)
whether the “right at issue was ‘clearly
established' at the time of defendant's alleged
misconduct.” Pearson v. Callahan, 553 U.S.
223, 232 (2009). Qualified immunity protects officers not
just from liability, but from suit: “it is effectively
lost if a case is erroneously permitted to go to trial,
” and thus, the claim should be resolved “at the
earliest possible stage in litigation.” Anderson v.
Creighton, 483 U.S. 635, 640 n.2 (1987). The purpose of
qualified immunity is “to recognize that holding
officials liable for reasonable mistakes might unnecessarily
paralyze their ability to make difficult decisions in
challenging situations, thus disrupting the effective
performance of their public duties.” Mueller v.
Auker, 576 F.3d 979, 993 (9th Cir. 2009). Because
“it is ...