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Thompson v. City of Olympia

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

July 22, 2019

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.




         THIS 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.[1] 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. # 30.

         In 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.

         For the following reasons, the Court DENIES Defendants' Motion.


         1. Legal Standard

         Summary 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.

         There 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 (1986).

         2. Dismissal of All Claims

         Defendants 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.

         a. Whether a Reasonable Jury Could Find for Plaintiffs

         On 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.

         Defendants' 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 ...

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