United States District Court, W.D. Washington, Tacoma
ANDRE THOMPSON, a single man; and BRYSON CHAPLIN, a single man, Plaintiffs,
CITY OF OLYMPIA, a municipal corporation and local government entity, and RYAN DONALD and “JANE DOE” DONALD, individually and the marital community comprised thereof, Defendants.
ORDER DENYING DEFENDANTS' SECOND MOTION FOR
SUMMARY JUDGMENT DKT. # 41
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' second Motion
for Summary Judgment or, in the Alternative, for Partial
Summary Judgment and to Exclude Expert DeFoe. Dkt. # 41. This
case arose out of Olympia Police Officer Ryan Donald's
shooting of the two teenage Plaintiffs in the early morning
on May 21, 2015. As the Court explained in the Order denying
Defendants' first Motion for Summary Judgment [Dkt. #
30], the parties offer starkly different stories about what
happened. After Officer Donald pulled his car over,
Plaintiffs stated in declarations that they fled into the
woods and were shot by Officer Donald. Dkt. ## 22-7,
22-21. Officer Donald has testified that he shot Plaintiffs
only after they tried to assault him with a skateboard near
his car and then again after he pursued Plaintiffs into the
woods. Dkt. # 19-1. This factual dispute caused the Court to
deny Defendants' first Motion for Summary Judgment. Dkt.
their second Motion, Defendants do not claim to have
discredited Plaintiffs' version of events. Instead, they
argue that Plaintiffs' claims should be dismissed because
the report by Plaintiffs' expert, Scott DeFoe, analyzes
the facts as recounted by Officer Donald. By commissioning
such a report, Defendants contend that Plaintiffs have
tacitly abandoned Thompson and Chaplin's story that they
did not attack Officer Donald. Alternatively, Defendants ask
the Court to dismiss Plaintiffs' “claims based on
Expert Defoe's testimony” and exclude DeFoe himself
as an expert witness. Dkt. # 41 at 20. In addition,
Defendants argue that Plaintiffs' negligence claim should
be dismissed independently because they were shot while
commissioning a felony.
following reasons, the Court DENIES Defendants' Motion.
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether an issue of fact
exists, the Court must view all evidence in the light
most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. Anderson
Liberty Lobby, Inc., 477 U.S. 242, 248-50
(1986) (emphasis added); Bagdadi v. Nazar, 84 F.3d
1194, 1197 (9th Cir. 1996). A genuine issue of material fact
exists where there is sufficient evidence for a reasonable
factfinder to find for the nonmoving party.
Anderson, 477 U.S. at 248. The inquiry is
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52. The moving party bears
the initial burden of showing that there is no evidence which
supports an element essential to the nonmovant's claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant has met this burden, the nonmoving party then
must show that there is a genuine issue for trial.
Anderson, 477 U.S. at 250. If the nonmoving party
fails to establish the existence of a genuine issue of
material fact, “the moving party is entitled to
judgment as a matter of law.” Celotex, 477
U.S. at 323-24.
is no requirement that the moving party negate elements of
the non-movant's case. Lujan v. National Wildlife
Federation, 497 U.S. 871 (1990). Once the moving party
has met its burden, the non-movant must then produce concrete
evidence, without merely relying on allegations in the
pleadings, that there remain genuine factual issues.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Dismissal of All Claims
argue that, because DeFoe's expert report
“assum[es] that the event unfolded as detailed [by]
Officer Donald, ” Plaintiffs have contradicted their
own version of events and made it impossible for a reasonable
jury to find in their favor. Dkt. # 42-5 at 15; Dkt. # 41 at
14. Defendants also argue that the doctrine of judicial
estoppel prevents Plaintiffs from taking incompatible factual
positions for their own advantage. Finally, Defendants
contend that Plaintiffs' criminal convictions for assault
are “fundamentally inconsistent” with the §
1983 relief they now seek. Dkt. # 41 at 16. None of these
arguments are convincing.
Whether a Reasonable Jury Could Find for Plaintiffs
summary judgment, the non-moving party succeeds if there is
“evidence on which the jury could reasonably find for
the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). This of course requires
that there be some credible evidence supporting the
non-movant's version of events. In Moore v.
Chesapeake & O. Ry. Co., for example, the Supreme
Court upheld a trial court's judgment notwithstanding the
verdict after the jury found the defendant liable for
negligence. 340 U.S. 573, 576 (1951). The Court emphasized
that, although there may have been some minor reasons to
doubt the key witness's version of events, the plaintiff
had provided no evidence directly supporting her account.
Id. at 576-77.
effort to compare this case to Moore is totally off
base. Unlike Moore, where the plaintiff had
no evidence supporting her position, Plaintiffs both
state in declarations that they never attacked Officer
Donald. Dkt. ## 22-7, 22-21. The fact that Plaintiffs'
expert has provided a report analyzing the facts as recounted
by Officer Donald does not preclude the possibility of a jury
believing Thompson and Chaplin's stories over Officer
Donald's. DeFoe was not a ...