United States District Court, W.D. Washington, Tacoma
FRANK J. FULLER, Plaintiff,
COUNTY OF KITSAP, et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND RESERVING RULING ON PLAINTIFF'S MOTION FOR
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the motion for summary
judgment by Defendants Kitsap County, Deputy Matthew Hill
(“Deputy Hill”), and Jane Doe Hill. Dkt. 73. Also
before the Court is Plaintiff Frank J. Fuller's
(“Plaintiff”) motion for sanctions. Dkt. 75. The
Court has considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and,
for the reasons stated herein, hereby (1) denies the motion
for summary judgment and (2) reserves ruling on the motion
26, 2016, Plaintiff filed his complaint. Dkt. 1. Plaintiff
brings claims for excessive force, assault, and battery
arising from an arrest performed by Mr. Hill in his capacity
as a Kitsap County Deputy Sherriff. Dkt. 1 at 4-7.
September 28, 2016, the Court issued its Rule 16 scheduling
order. Dkt. 20. The order established a discovery cutoff of
July 17, 2017. Id. The order also established August
16, 2017, as a deadline for dispositive motions. Id.
October 30, 2017, the Court granted a motion by Defendants to
exclude the testimony of Plaintiff's disclosed expert
witness. Dkt. 70. On November 8, 2017, the parties appeared
for their pretrial conference. Dkt. 72. At the hearing,
Defendants requested leave to file a motion for summary
judgment, suggesting that the motion was now warranted due to
the Court's earlier decision to strike the testimony of
Plaintiff's expert witness. The Court granted the request
and stated that it would entertain such a motion.
November 9, 2017, Defendants moved for summary judgment,
arguing that (1) Deputy Hill used reasonable force while
arresting Plaintiff and (2) Deputy Hill is entitled to
qualified immunity on Plaintiff's § 1983 claim for
excessive force. Dkt. 73. On November 14, 2017, Plaintiff
responded. Dkt. 77.
November 9, 2017, Plaintiff moved for sanctions pursuant to
Rule 37(c) seeking the exclusion of any testimony from
Cristal McCune that Defendants may seek to admit. Dkt. 75. On
November 16, 2017, Defendants responded. Dkt. 80.
am on May 27, 2014, in Port Orchard, Washington, State
Trooper Chad Prentice observed a vehicle that he considered
to be suspiciously parked. Dkt. 74 at 6. As Trooper Prentice
turned his patrol car in behind the vehicle, the driver of
the suspect vehicle, Mark Pratt, immediately placed the
vehicle in gear and left the parking lot. Id.
Trooper Prentice checked the vehicle's license plate and
discovered that the tabs were expired, he activated his
overhead lights. Id.
approximately seven-minute pursuit ensued wherein Pratt ran a
red light (after coming to a momentary halt) and reached
speeds of approximately seventy miles per hour in a
forty-five miles-per-hour zone. Id. The pursuit
ended at a residence where the driver of the suspect vehicle
abandoned the vehicle in the driveway, with the engine
running and in gear, and ran into the house. Id. By
the end of the car chase, Pratt was also being pursued by
Deputy Hill. Id. Deputy Hill chased Pratt into the
house. Id. Trooper Prentice also followed Pratt and
Deputy Hill into the house. Id.
the house, Deputy Hill entered Plaintiff's bedroom,
through which Pratt had fled to exit the house. Dkt. 74 at
29. Entering the room with his flashlight and firearm drawn,
Deputy Hill encountered Plaintiff, just inside the doorway,
and observed a female standing on top of the bed.
Id. at 29, 31. Plaintiff was fully clothed, but he
was dressed entirely differently from Pratt and was not
wearing shoes. See Dkt. 78-5. Deputy Hill pointed
his firearm at Plaintiff and instructed Plaintiff to show him
his hands. Dkt. 74 at 32. See also Dkt. 78-5 (audio
confirmation of statement “show me your hands”).
Plaintiff complied with Deputy Hill's instruction and
raised his hands. Dkt. 74 at 23. Deputy Hill also instructed
Plaintiff to get on the ground. Id. at 23-24.
See also Dkt. 78-5.
parties dispute what occurred next. Deputy Hill has stated
that Plaintiff failed to comply with his orders to get on the
ground. Dkt. 74 at 34-35. In his deposition, Deputy Hill
explained that he then holstered his firearm and “put
his hands on [Plaintiff] to try and assist him to the
ground.” Id. at 34. Deputy Hill further stated
that he grabbed Plaintiff and that he did not strike