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Wright v. Hendrichsen

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

June 8, 2018

JAMES O. WRIGHT JR., Plaintiff,
v.
E.M. HENDRICHSEN, et al, Defendants.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke United States Magistrate Judge

         This matter has been referred to the undersigned Magistrate Judge pursuant to Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976), 28 U.S.C. § 636(b)(1)(B), and Local Rule MJR 4(a)(4), and is before the Court on a motion to dismiss by defendants E.M. Hendrickson, Sgt. Dan Smith, D. Duncan, J. Hazen, R. Donald, J. Watkins, Jason E. Barney, and Chief of Police for the City of Olympia Ronnie Roberts (the “Olympia defendants”). Dkt. 12. For the reasons set forth below, the undersigned recommends the Court deny the motion in part and grant it in part.

         FACTUAL AND PROCEDURAL HISTORY

         Plaintiff is currently an inmate at the Coyote Ridge Corrections Center. Dkt. 4, p. 3. In his complaint, plaintiff states that on the night of May 18, 2014, he was sitting in a restaurant in the City of Olympia, having just finished a milkshake. Id. at p. 7 He paid for the milkshake with a $50 bill. Dkt. 4, p. 7. After waiting a few minutes, plaintiff asked the waitress to whom he gave the $50 bill about his change. Id. In response, she told plaintiff she mistakenly gave the money to another person who had left the restaurant. Id.

         Plaintiff states the waitress informed him that if he wanted his change, he would have to chase after that person to get the money. Id. Plaintiff declined to do so, deciding instead to remain at the restaurant. Id. Plaintiff states the waitress became frustrated and told him that if he did not leave she would call the police. Id. After plaintiff indicated he would not leave until he got his change, the waitress called the police. Id.

         Defendants Hendricksen and Hazen, both City of Olympia police officers, were the first to arrive at the restaurant. Id. at pp. 7, 10. Plaintiff states he explained to the officers what had happened, but they told plaintiff he would have to leave the restaurant or they would physically remove him from the restaurant and arrest him. Id. at pp. 10-13. This is then what they proceeded to do, injuring plaintiff's leg as they dragged him out of the restaurant. Id. at p. 13.

         Once outside, defendant Hendricksen and defendant Hazen were joined by defendants Sgt. Dan Smith, R. Donald, J. Watkins, and D. Duncan, all of whom are also City of Olympia police officers. Id. at pp. 13-14. Plaintiff states all six defendant police officers then used extreme excessive force to subdue him, causing additional physical injury to his face and head. Id. at pp. 14-15. At one point, plaintiff feared for his life as a result of the defendant police officers placing all of their weight on his head and back, preventing him from being able to breathe. Id. at pp. 15-16.

         Plaintiff states that at no time during this whole encounter was he resistant or combative. Id. at p. 16. Plaintiff was placed in handcuffs that he found to be “excruciatingly tight, ” which the defendant police officers refused to loosen despite plaintiff repeatedly asking them to do so. Dkt. 4, p. 16. At one point during this encounter, one of the defendant police officers poked plaintiff's left foot with a sharp or pointed instrument, which caused plaintiff's leg to reflexively make contact with defendant Smith. Id. at p. 17.

         Plaintiff states the defendant police officers used this contact as a pretext as part of a common scheme to arrest him. Dkt. 4, pp. 18-19. They then “hogtied” plaintiff and threw him across the floor of a police patrol car, which caused additional injuries to his shoulders, wrists, face, and head. Id.

         Plaintiff went to trial on a charge of third degree assault in the Thurston County Superior Court, and was found not guilty by a jury on June 2, 2015. Id. at pp. 22, 35. Due to defendants' actions, plaintiff states he suffered extreme trauma and mental distress, resulting in the eventual loss of his home and business and in him becoming homeless. Id. at pp. 21-22.

         Plaintiff asserts claims of excessive use of force, false arrest and unlawful imprisonment. Id. at pp. 25-29. He also asserts the Olympia defendants colluded with defendant J. Andrew Toynbee, a Thurston County deputy prosecutor in bringing false assault charges against him, and thus plaintiff asserts a claim of malicious prosecution against the Olympia defendants as well. Id. at pp. 29-30. As a result, plaintiff alleges his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated. Id. at p. 24. He seeks both injunctive relief and compensatory and punitive damages. Id. at 31.

         The Olympia defendants seek dismissal of plaintiff's claims against defendants Roberts and Barney on the basis of lack of personal participation. The Olympia defendants further assert all of plaintiff's claims against them are barred based on statute of limitations grounds. The undersigned agrees that plaintiff's excessive force, false arrest, and unlawful imprisonment claims are barred by the statute of limitations, and that his claims against defendants Roberts and Barney should be dismissed for lack of personal participation. The malicious prosecution claim against the remaining Olympia defendants should not be dismissed, however, as it is not barred by the statute of limitation.

         DISCUSSION

         I. Stand ...


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