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Fowler v. San Juan County

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

September 20, 2019

SAN JUAN COUNTY et al., Defendants.



         This matter comes before the Court on Defendants’ motion for summary judgment (Dkt. No. 17). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         Plaintiff Daniel Fowler’s relationship with Holly Dennis, his girlfriend, was turbulent at times and resulted in several contacts with San Juan County law enforcement officers. (See Dkt. No. 22 at 1.) On November 25, 2014, after Dennis broke up with Plaintiff, Defendant Deputy Sheriff Raymond Harvey responded to a pair of 911 calls in which Dennis first requested a welfare check of Plaintiff and then reported that Plaintiff refused to release Dennis’s vehicle from his automotive shop. (Dkt. No. 19 at 2, 29.) On August 14, 2015, after Dennis asked Plaintiff to move out of her home, she called 911 to report Plaintiff was behaving in an enraged manner towards her; she later reported he had vandalized her property. (Id. at 3.) Defendant Harvey investigated Dennis’s reports and arrested Plaintiff for domestic violence malicious mischief. (Id. at 3–4.) Plaintiff was charged, and the San Juan County District Court entered a domestic violence protection order, which prohibited Plaintiff from having contact with Dennis. (Id. at 4.) On August 27, 2015, Dennis secured a second protection order from the Superior Court of Washington for San Juan. (Dkt. No. 22 at 1, 8.)

         On December 21, 2015, Dennis obtained a modification to the superior court’s protection order that terminated the no-contact provision. (Id. at 1, 15.) On February 24, 2016, the district court terminated its protection order. (Id. at 21.) The Sheriff’s Office is routinely provided with copies of protection orders from the San Juan County District and Washington Superior Courts. (Dkt. No. 19 at 4.)

         On March 1, 2016, Defendant Harvey saw Plaintiff and Dennis sitting together in Dennis’s parked vehicle. (Id.) Defendant Harvey was aware that the district court had entered a protection order; he called the San Juan County Sheriff’s Office dispatch and was erroneously told the protection order was still in place. (Id.). He ordered Plaintiff and Dennis to separate. (Id.) Plaintiff was adamant that the district court’s protection order had been quashed and showed Defendant Harvey a copy of the order terminating the district court’s protection order, but Plaintiff nevertheless complied. (Id. at 4–5.) On March 4, the next day that Defendant Harvey reported to work, he called dispatch again to clarify the status of the district court’s protection order. (Id.) This time, dispatch told him that the district court’s protection order had indeed been terminated but the superior court’s protection order was still in place and prohibited Plaintiff from contact with Dennis. (Id. at 5.) Defendant Harvey called Plaintiff and left a voice message to this effect. (Dkt. No. 22 at 3.) The next day, Plaintiff left a voice message for Defendant Harvey stating that the superior court’s protection order had also been quashed. (Id.)

         On March 7, Defendant Harvey responded to Dawn Atkinson’s report of the presence of Plaintiff as an unwanted person on a third party’s property. (Dkt. No. 19 at 5.) When Defendant Harvey arrived at the address, Atkinson told him that Plaintiff had been there with Dennis but had left and likely returned to his house. (Id. at 5–6.) Defendant Harvey called dispatch and was once again told that the superior court’s protection order was in place. (Id. at 6). Defendant Harvey, along with Deputy Sheriff David Holland, went to Plaintiff’s residence, knocked on the door, and spoke to Plaintiff. (Id. at 58.) The parties disagree over where the conversation took place. While Plaintiff maintains that he stood calmly just inside the threshold of his house with the door open, Defendant Harvey states that Plaintiff came out on the porch and was in an agitated state. (See Dkt. Nos. 19 at 6, 58; 22 at 4.) Defendant Harvey questioned Plaintiff about Atkinson’s report. (Dkt. No. 19 at 58.) Next, Defendant Harvey questioned Plaintiff about his contact with Dennis and informed him that the superior court’s protection order still prohibited him from contact with Dennis. (Id.) Plaintiff insisted that the order was no longer in effect. (Id.)

         What happened next is also in dispute. Defendant Harvey maintains he attempted to place Plaintiff under arrest for violation of the superior court’s protection order and advised Plaintiff to turn around and place his hands behind his back. (Id.) Defendant Harvey states that Plaintiff walked from the porch back into the house and continued resisting after Defendant Harvey and the other officer grabbed him and began applying handcuffs. (Id.) Defendants note that Defendant Harvey was aware of at least three previous incidents in which Plaintiff had been charged or convicted of assault, including one in which Defendant Harvey was the responding officer. (Id. at 2 and 11.) Defendant Harvey also maintains he did not know whether Dennis was present and was concerned that she could be in danger of harm from Plaintiff. (Id. at 6.)

         Plaintiff maintains that when Defendant Harvey advised him that he had violated the superior court’s protection order, Plaintiff remained calm, stated that he would retrieve the court order showing the modification, and turned to go to his bedroom. (Dkt. No. 22 at 4.) Plaintiff states that as he turned to look for the paperwork, Defendant Harvey unexpectedly slammed into him from behind, shoved him into a wall, brought him to the floor, pulled his left arm, and shoved it up towards his shoulder blade. (Id. at 4.) Plaintiff says he felt a pop and felt something break in his shoulder. (Id. at 4–5, 26.) Plaintiff maintains that he was never given a warning or informed he was under arrest. (Id. at 4.) Plaintiff’s daughter was present and corroborates his account. (See Dkt. No. 23.)

         Defendants do not dispute that when Defendant Harvey and the other officer restrained Plaintiff, they grabbed Plaintiff by the arms, pushed him into a corner, damaging his glasses, forced him face down onto the floor, and twisted his left arm behind his back. (See Dkt. No. 21 at 8; 22 at 4; 25.) Plaintiff states that after cuffing him, Defendant Harvey pulled up on the cuffs again and caused Plaintiff more pain. (Dkt. No. 22 at 5.)

         Defendant Harvey took Plaintiff to the sub-station to process him for booking (Dkt. No. 19 at 59.) Defendant Harvey asked dispatch to fax the superior court’s protection order (Id.) Dispatch informed him that when they pulled the order from the filing drawer, they found an amendment stapled to the back that eliminated the no-contact provision. (Id.) The amendment to the protection order had not been logged in the dispatch computer system. (Id.) Defendant Harvey contacted Defendant Sheriff Ronald Krebs, who agreed that Plaintiff should be released. (Id.) Defendant Harvey apologized for the miscommunication and released Plaintiff. (Id.)

         Plaintiff has had persistent pain following his arrest. (Dkt. No. 22 at 5.) Plaintiff states that his shoulder was seriously injured and required extensive surgery. (Id. at 5–6.) Plaintiff’s shoulder condition has caused him financial hardship because it has impaired his ability to work as a mechanic, drive heavy equipment, or work with firewood. (Id. at 6.) Defendants dispute the extent of Plaintiff’s shoulder injury and point to evidence showing that he had a preexisting degenerative joint condition that may have required surgery even without an injury. (Dkt. No. 26 at 4, 6.) Defendants also point to Defendant Harvey’s arrest report, which states that Plaintiff said his left shoulder hurt because of a preexisting condition. (Dkt. No. 19 at 59.)

         Plaintiff brings the following causes of action against Defendants: (1) arrest without probable cause in violation of 42 U.S.C. § 1983; (2) excessive use of force in violation of 42 U.S.C. § 1983; (3) municipal liability for violations of Plaintiff’s Fourth Amendment rights in violation of 42 U.S.C. § 1983; (4) negligence; (5) outrage; and (6) trespass.[1] (Dkt. No. 7 at 15– 19.) Defendants move for summary judgment dismissing all of Plaintiff’s claims. (Dkt. No. 17.)


         A. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248–49. Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). ...

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