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Preston v. Boyer

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

July 12, 2018

ROBERT JOHN PRESTON, Plaintiff,
v.
RYAN BOYER, et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         In this 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 here.

         To 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. (Id.)

         This is 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 qualified immunity).

         Judge 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.)

         II. DISCUSSION

         A. Motion to Strike

         Under 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.

         Plaintiff 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[1] 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.)

         The 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.

         Accordingly, the Court ADOPTS Judge Theiler's R&R and DENIES in part Defendant's motion to strike. (Dkt. No. 77 at 5-7.)

         B. ...


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