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Fuller v. County of Kitsap

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

November 21, 2017

FRANK J. FULLER, Plaintiff,
COUNTY OF KITSAP, et al., Defendants.



         This 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 for sanctions.


         On May 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.

         On 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.

         On 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.

         On 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.

         Also on 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.


         At 4:00 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.

         After Trooper Prentice checked the vehicle's license plate and discovered that the tabs were expired, he activated his overhead lights. Id.

         An 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.

         Inside 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.

         The 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 Plaintiff ...

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