United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Ryan Boyer's
(“Defendant”) motion for summary judgment (Dkt.
No. 70) and motion to strike (Dkt. No. 77 at 5-6), United
States Magistrate Judge Mary Alice Theiler's Report and
Recommendation (“R&R”) (Dkt. No. 88), and
Plaintiff and Defendant's objections to the R&R (Dkt.
Nos. 94, 96). Having thoroughly considered the parties'
briefing, the R&R, and the relevant record, the Court
GRANTS in part and DENIES in part the motions (Dkt. Nos. 70,
77) and ADOPTS the R&R for the reasons explained herein.
action under 42 U.S.C. section 1983, Plaintiff alleges that
Defendant violated Plaintiff's clearly established Fourth
Amendment rights when Defendant, a Snohomish County Sheriff,
used excessive force in apprehending Plaintiff. (See
generally Dkt. No. 10.) The factual background of the
case is discussed in depth in the R&R (Dkt. No. 88 at
2-11, 21-23). The Court will not repeat those detailed facts
summarize, Defendant arrested Plaintiff for possession of
stolen property and possession of another's
identification. (Id. at 21.) Defendant searched
Plaintiff and found no weapons. (Id.) Shortly
thereafter, while being transported by Defendant, Plaintiff
indicated he wished to make a statement regarding how he came
to possess the allegedly stolen property. (Id.)
Defendant stopped his vehicle at a park-and-ride, allowed
Plaintiff to exit the vehicle, and removed Plaintiff's
handcuffs. (Id.) While Plaintiff was in the process
of preparing the statement, Defendant determined that
Plaintiff had outstanding felony warrants. (Id.)
Defendant notified Plaintiff of his discovery and again
attempted to take Plaintiff into custody. (Id.)
Plaintiff resisted and Defendant Tased him (Id. at
22.) Plaintiff pulled the darts out and ran. (Id.)
Defendant again attempted to Tase Plaintiff, who went to his
knees, and then fell to the ground after Defendant kicked him
in the back. (Id.) Plaintiff alleges that he
remained on the ground from this point forward.
also when Plaintiff alleges the unlawful force began.
(Id.) Defendant jumped on Plaintiff's back and
applied at least two blows to the back of Plaintiff's
head with his Taser gun. (Id.) Defendant then stood
up and allegedly kicked Plaintiff's head and torso.
(Id.) Finally, Defendant allegedly pointed his duty
weapon at Plaintiff. (Id.) Defendant moved for
summary judgment solely on the issue of whether qualified
immunity applies to the actions described above. (See
generally Dkt. No. 70); (see also Dkt. Nos. 66,
69) (scheduling orders regarding limited discovery and the
filing of a summary judgment motion solely on the issue of
Theiler recommends that the Court grant in part and deny in
part Defendant's motion. (Dkt. No. 88 at 45.)
Specifically, Judge Theiler recommends that the Court find
qualified immunity applies to Defendant's blows to the
back of Plaintiff's head and pointing his duty weapon
towards Plaintiff. (Id.) Judge Theiler recommends
against a finding that qualified immunity applies to
Defendant's kicks to Plaintiff's head and torso.
(Id.) Defendant also moved to strike portions of
Plaintiff's declaration in support of his opposition to
summary judgment, citing the sham affidavit rule. (Dkt. No.
77 at 5-6.) Judge Theiler recommends that the Court srike
only a small portion of the declaration be struck.
(Id. at 45-46.)
Motion to Strike
the “sham affidavit rule, ” a party cannot create
an issue of fact with an affidavit contradicting prior
statements that the party made under oath. Yeager v.
Bowlin, 693 F.3d 1076, 1079-80 (9th Cir. 2012); see
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 980
(9th Cir. 2006). The rule applies to “clear and
unambiguous” contradictions that cannot be resolved
with “a reasonable explanation.” Yeager,
693 F.3d at 1080-81 (citing Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 806-07 (1999)). However, the
rule “should be applied with caution because it is in
tension with the principle that the court is not to make
credibility determinations when granting or denying summary
judgment.” Id. at 1080.
prepared a document before filing suit describing the events
at issue. (Dkt. No. 95-1 at 3-4.) He indicated in the
document that, after going to his knees from the second
tasing, Defendant “kicked me in my back causing me to
gash my forehead open about 3 [inches] over my right
eye.” (Dkt. No. 95-1 at 3.) Defendant argues this
statement is inconsistent with Plaintiff's Amended
Complaint and Plaintiff's declaration in support
of his opposition to summary judgment. (Dkt. No. 77 at 5). In
those documents, Plaintiff alleges that the gash resulted
from Defendant's later kick to his face. (Dkt. Nos. 10 at
5, 7; 74 at 6.) Judge Theiler noted that the earlier
document, which Plaintiff labeled a “Declaration,
” was not made under oath and therefore “cannot
form a basis for invoking the sham affidavit rule.”
(Dkt. No. 88 at 14.) Defendant now presents the Court with a
Snohomish County damages claim form Plaintiff signed under
penalties of perjury that Defendant alleges incorporates the
“Declaration” presented to Judge Theiler.
(See Dkt. No. 95-1 at 1, 2, 7.)
issue before the Court is whether the claim form establishes
a) that the “Declaration” was signed under oath
and b) that the “Declaration, ” through
incorporation with the claim form, is a clear and unambiguous
contradiction of Plaintiff's Amended Complaint and his
declaration opposing summary judgment. The Court finds that
it does neither. First, the oath on the claim form pre-dates
the “Declaration” by more than two weeks.
(See Dkt. No. 95-1 at 4, 7) (the oath is dated
September 22, 2015, whereas the “Declaration” is
dated October 9, 2015). Second, the account contained on the
face of the claim form does not agree with the account
contained in the “Declaration.” (See Id.
at 2) (Plaintiff's account on the face of the claim form
is that Defendant “kicked my head . . . causing . . .
[a] 3” tear on forehead over right eye.”). This
is far from the “clear and unambiguous”
contradiction necessary to support an application of the sham
affidavit rule. Yeager, 693 F.3d at 1080-81.
the Court ADOPTS Judge Theiler's R&R and DENIES in
part Defendant's motion to strike. (Dkt. No. 77 at 5-7.)