United States District Court, E.D. Washington
DUSTIN A. LOUIE, Plaintiff,
C/O FOO, SGT. BLIVEN, and C/O THOMAS W. FRANTZ, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY
O. RICE CHIEF UNITED STATES DISTRICT JUDGE.
THE COURT are Defendants' Motion for Summary Judgment
(ECF No. 33) and Plaintiff's Motion for Summary Judgment
(ECF No. 41). These matters were submitted for consideration
without oral argument. The Court has reviewed the record and
files herein, and is fully informed. For the reasons
discussed below, Defendants' Motion for Summary Judgment
(ECF No. 33) is GRANTED and Plaintiff's
Motion for Summary Judgment (ECF No. 41) is DENIED as
Dustin A. Louie, a prisoner currently housed at the
Washington State Penitentiary, is proceeding pro se
and in forma pauperis. ECF No. 16 at 1. On March 15,
2017, Plaintiff filed his unverified First Amended Complaint
alleging violations of his Eighth and Fourteenth Amendment
rights in violation of 42 U.S.C. § 1983. ECF No. 15.
Plaintiff seeks declaratory relief against Defendants Spokane
County Detention Services, Corrections Officer Foo, and
Sergeant Bliven. Id. at 1-3. The Court dismissed
Plaintiff's claims against Spokane County Detention
Services with prejudice, but his claims against Defendants
Foo and Bliven remain, for which they were served. ECF Nos.
16 at 3; 18 at 1.
December 27, 2017, Plaintiff filed an unverified Second
Amended Complaint to add Officer Thomas W. Frantz. ECF No.
Yet, Plaintiff failed to assert a short and plain statement
showing that he is entitled to relief and his Second Amended
Complaint (ECF No. 32) appears as a mere supplement to the
First Amended Complaint (ECF No. 15). The Court instructed
Plaintiff that he must file a second amended complaint that
would operate as a complete substitute for the prior
complaint. See ECF No. 31. Plaintiff failed to
correctly file the Second Amended Complaint as instructed. In
any event, since Plaintiff is proceeding pro se and
the Court has the obligation to screen prisoner complaints,
28 U.S.C. § 1915A, the Court will simultaneously review
the parties' motions for summary judgment and screen the
allegations against Officer Frantz even though he has not
been properly added or served at this time.
January 26, 2018, Defendants filed a Motion for Summary
Judgment, seeking a complete dismissal of Plaintiff's
claims with prejudice. ECF No. 33. On February 6, 2018, the
Court filed the required Rand v. Rowland, 154 F.3d
952 (9th Cir. 1998) notice instructing Plaintiff on the
summary judgment rule requirements. ECF No. 40. Plaintiff did
not timely respond to Defendants' Motion, but filed his
own Motion for Summary Judgment on March 8, 2018. ECF No. 41.
Defendants reply that Plaintiff's Memorandum in Support
of Plaintiff's Summary Judgment (ECF No. 41) does not
include any affidavits, provide a statement of disputed
facts, offer any facts that were not plead in the First
Amended Complaint, and was not timely. ECF No. 42 at 1-2.
following are the undisputed facts unless otherwise noted.
For purposes of summary judgment, “[i]f a party fails
to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may … consider the fact
undisputed.” Fed.R.Civ.P. 56(e)(2). Plaintiff did not
address Defendants' assertion of facts (ECF No. 34), as
he did not file a response. In Plaintiff's unverified
Motion for Summary Judgment, he asserted similar facts to
those found in his unverified First Amended Complaint.
See ECF Nos. 41 at 5-6; 15. The following facts are
undisputed or deemed so due to Plaintiff's failure to
properly address Defendants' facts and his complete
failure to support his assertions of fact with admissible
July 27, 2016 Incident
27, 2016, Officer Foo and Officer Frantz were working
transport to superior court video. ECF No. 34 at ¶ 1.
Plaintiff was escorted with eight other inmates into the
video courtroom and once seated, he began talking to another
inmate. Id. at ¶ 5. Officer Foo instructed
Plaintiff that he was to stop talking when the judge took the
bench, but Plaintiff continued to talk when the judge was on
the bench. Id. at ¶¶ 6, 8. Officer Foo
instructed Plaintiff to stop talking and the court clerk also
told him to stop talking. Id. at ¶¶ 9-10.
the third instruction, Plaintiff did not stop talking and
Officer Foo told him to stand up and leave the courtroom, but
Plaintiff refused to stand up. Id. at ¶¶
11-13. Officers Foo and Frantz walked over and stood in front
of Plaintiff, Officer Foo again instructed Plaintiff to stand
up and come with him. Id. at ¶ 16. Officer Foo
told Plaintiff that if he did not get out of the chair, he
would take him out of the chair, but Plaintiff again refused
to stand up. Id. at ¶¶ 17-18. Officer Foo
took Plaintiff's right arm and Officer Frantz took
Plaintiff's left arm. They pulled him out of the seat to
remove him from the courtroom. Id. at ¶ 20.
Plaintiff locked his hands together in front of him, and in
the door he began to pull and twist away from the officers.
Id. at ¶¶ 21-22. The officers were unable
to control him and Officer Foo took Plaintiff to the floor
using a hair hold technique. Id. at ¶¶
25-26. Plaintiff continued to resist on the ground and the
officers instructed him to stop resisting. Id. at
¶¶ 27-28. Officer Frantz delivered a fist strike to
the lower left back area of Plaintiff and instructed him to
give Officer Frantz his hands, but Plaintiff would not
release his hands from their locked position under his body.
Id. at ¶¶ 29-31. Officer Frantz delivered
a knee strike to the lower left back area and Plaintiff
released his grip. Id. at ¶ 32. Officer Frantz
was then able to get Plaintiff's left hand behind his
back. Id. Officer Foo was also able to gain control
of Plaintiff's right arm behind his back. Id. at
was then handcuffed and escorted from the courtroom, but
began resisting by twisting his body in the hallway.
Id. at ¶ 35. Sergeant Bliven heard a call from
transport stating they needed an elevator. He went to the
elevator and observed several staff escorting Plaintiff.
Id. at ¶¶ 36-37. Officers Frantz and Foo
escorted Plaintiff to housing where he was then searched and
the handcuffs were removed through the food slot.
Id. at ¶ 39. Sergeant Bliven requested medical
to see Plaintiff, but Plaintiff refused to come to the door
or talk to the RN. Id. at ¶ 42. Plaintiff was
seen approximately two weeks later for neck and side pain,
but stated that the pain was better. Id. at ¶ 43.
27, 2016, Plaintiff was charged with violation of Major 14 -
Refusing lawful order; Major 19 - Threat to staff; and Minor
12 - Inmates shall not interfere with staff members.
Id. at ¶ 70. Plaintiff waived his right to a
hearing and received placement in restrictive housing for
seven days. Id.
August 13, 2016 Incident
August 13, 2016, Officer Vanatta was assigned duties as the
break relief officer. Id. at ¶ 44. Plaintiff
was screaming/singing loudly out his door and Officer Vanatta
kicked his door and told him to knock it off. Id. at
¶¶ 47-48. Plaintiff claims a fellow inmate
requested a prayer song and Plaintiff was singing. ECF Nos.
15 at 6; 41 at 5. Defendants assert that Plaintiff was
yelling out his door to another inmate and Officer Vanatta
again told Plaintiff to stop yelling, but he continued to
yell. ECF No. 34 at ¶¶ 51-54. Officer Vanatta
notified Sergeant Bliven via radio and requested Plaintiff be
moved for not following directions and inciting. Id.
at ¶ 55. Sergeant Bliven learned that the inmate was
Plaintiff when he arrived. Id. at ¶ 56.
Plaintiff was ordered multiple times to “cuff up”
and after approximately three minutes he was
handcuffed. Id. at ¶¶ 58-59.
was defiant during the escort and tried to pull away so he
was walked doubled over. Id. at ¶ 60. Plaintiff
attempted to stand up against staff and he was placed on the
floor without force. Id. at ¶¶ 61-62.
Plaintiff was given directives not to resist and to
cooperate. Plaintiff acknowledged the directives and he was
stood to his feet. Id. at ¶¶ 63-64. Once
in the cell, Plaintiff was searched and the cuffs were
removed through the food slot. Id. at ¶ 66.
During med pass, Plaintiff allegedly apologized to Officer
Vanatta. Id. at ¶ 69.
August 13, 2016, Plaintiff was charged with violation of
Major 14 - Refusing lawful orders and Minor 1 - Whistling,
loud singing and shouting prohibited. Id. at ¶
71. Plaintiff waived his right to a hearing and moved to more
restrictive housing until August 16, 2016. Id.
Standard of Review
judgment is appropriate when “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). For
purposes of summary judgment, a fact is
“material” if it might affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A material fact is
“genuine” where the evidence is such that a
reasonable jury could find in favor of the non-moving party.
Id. The moving party bears the initial burden of
showing the absence of any genuine issues of material fact.
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