United States District Court, W.D. Washington, Tacoma
JAMES O. WRIGHT JR., Plaintiff,
E.M. HENDRICHSEN, et al, Defendants.
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge
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.
AND PROCEDURAL HISTORY
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
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.
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.
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
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.
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.
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.
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.
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.