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Verdier v. Clark County

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

May 18, 2017

TODD VERDIER, Plaintiff,
CLARK COUNTY, et al., Defendants.


          Ronald B. Leighton United States District Judge.

         THIS 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.

         The 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.

         The 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.

         This 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.

         He 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.

         Walker 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.

         A. Legal Standards

         1. Summary Judgment.

         Summary 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).

         Once 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.

         2. Qualified Immunity.

         Qualified 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).[1] 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 ...

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