McMillian v. Gem County, Idaho, et al

Filing 41

MEMORANDUM DECISION AND ORDER Granting 29 MOTION for Summary Judgment filed by Craig Hoodman, Gem County, State of Idaho, Gem County Sheriff's Department, Clint Short; Denying 38 MOTION to Strike 36 Supplemental Memorandum, Denying 39 MOTION to Strike 33 [Affidavit of D. P. Van Blaricom. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO CHESTER R. MCMILLIAN, ) ) Plaintiff, ) ) vs. ) ) GEM COUNTY, IDAHO; GEM COUNTY ) SHERIFF'S DEPARTMENT; CLINT ) SHORT, Gem County Sheriff; CRAIG ) HOODMAN, Deputy Gem County Sheriff; ) and JOHN DOES 1-10, ) ) Defendants. ) ____________________________________ ) Case No. CIV 07-078-S-EJL MEMORANDUM DECISION AND ORDER

Pending before the Court in the above-entitled matter are the Defendants' Motion fo r Summary Judgment (Docket No. 29) and motions to strike (Docket Nos. 38 and 39). H av ing fully reviewed the record, the Court finds that the facts and legal arguments are a d e q u ate ly presented in the briefs and record. Accordingly, in the interest of avoiding f u r th e r delay, and because the Court conclusively finds that the decisional process would n o t be significantly aided by oral argument, this matter shall be decided on the record b e f o re this Court without oral argument.

Factual Background O n February 17, 2005, Deputy Craig Hoodman ("Deputy Hoodman") was d is p a tc h e d to a hit-and-run accident site at Plaza Road and Fuller Road in Gem County.
MEMORANDUM DECISION AND ORDER ­ 1

D e p u ty investigated the scene of where a vehicle had crashed though a fence and had left th e area. The landowner's horses had escaped from the pasture where the fence was dow n. A hubcap with a GMC logo was found as well as a side mirror, pieces of

re f le c to rs and lights and red paint on a railroad tie. Deputy Hoodman proceeded with the gathered evidence to Dan's Auto Body R e p a i r Shop in Emmett. The owner of the shop identified the vehicle parts and said they c a m e from a 1988 Chevrolet pickup owned by Chester McMillian ("McMillian"). The o w n e r said McMillian brought his truck in around noon that day for an estimate and that M c M illia n had told him he drove off an embankment. The body shop owner thought the tru c k looked like it had gone through a barbed-wire fence with extensive damage on the rig h t side of the truck. The body shop owner gave Deputy Hoodman the VIN for the t r u c k . Deputy Hoodman had dispatch run the VIN and indicated it was a red, 1988 C h e v ro le t pickup registered to McMillian at 3438 Frozen Dog Road, Emmett, Idaho. D e p u t y Hoodman proceeded to the residence of McMillian. a p p ro x im a te ly six and one-half hours after the accident. This was

The damaged vehicle was

p a rk e d in the driveway. McMillian came out of the house to talk with Deputy Hoodman. A video camera was running while Deputy Hoodman inquired of McMillian. The video c a m e r a does not move so it did not capture all actions, however the audio portion was rec o rdin g the entire interaction between Deputy Hoodman and McMillian. The Court o b s e rv e d the video and summarizes the interaction as follows:
MEMORANDUM DECISION AND ORDER ­ 2

D e p u ty Hoodman asked McMillian why he did not report the accident and M c M illia n answered that he had no reason, but that he had suffered a brain trauma in the p a st from paint fumes. Plaintiff was cooperative and retrieved his drivers' license from h is house, got his registration and insurance papers out of the pickup. Plaintiff indicated h e was on medication but was okay to drive and that the medications had not bothered h im before. McMillian was coherent, compliant and his answers were appropriate to the q u e stio n s being asked by Deputy Hoodman. Plaintiff went again into his house to get his m e d ic a tio n s to show the Deputy. Plaintiff indicated he had placed calls into his doctor re g a rd in g the medication. M c M illia n stated he did not remember what happened when he crashed or that he h a d broke a water line. McMillian said after the accident he went to his cousin's and then w e n t to buy a coat. McMillian thinks the medication began to build up in his system and th a t is when he had problems. McMillian was sitting on the back bumper of his pickup at th is time. Deputy Hoodman indicated it was a violation of the law not to report the accident. P lain tiff stated it never crossed his mind to report the accident to law enforcement. D e p u ty Hoodman reported the extent of the damage to the third party's property and the f a ct that McMillian had failed to inform the deputy that he had also gone to the body shop to get an estimate for repairs which made it look like he was trying to cover up the a c c id e n t. Deputy Hoodman informed McMillian that he is going to be placed under arrest

MEMORANDUM DECISION AND ORDER ­ 3

f o r leaving the scene of an accident. McMillian becomes defiant and says "No." He s ta rt s walking off and says he can't go down to the jail as he "has too many medications a n d everything." Deputy Hoodman again informed McMillian he was going to be placed under a rre st and McMillian stated he could not be handcuffed because he had so many su rg e rie s. McMillian told the officer he was not going and began walking towards his h o u s e . The deputy stopped McMillian and told him to place his arms behind his back. M c M illia n said he was not going to place his arms behind his back because "You guys" a re going to hurt me." The officer again asked McMillian to stop resisting and pushed the P la in tif f back towards the pickup. McMillian was non-compliant with the officer and sta ted he was not going to jail as he has not done anything to go to jail for. Deputy H o o d m a n told Plaintiff to take a seat by the truck. Deputy Hoodman requested backup. P lain tiff started walking towards his house. Deputy Hoodman grabbed his taser from his v e h ic le and warned McMillian that he was going to taser him if he did not get on the g ro u n d . It is disputed whether Plaintiff stopped walking towards the house, but it is The

u n d is p u te d that Plaintiff did not get on the ground as ordered by the Deputy.

P la in tif f is out of the video picture when the taser is fired. Deputy Hoodman claims P la in tif f did not stop walking towards the house. Plaintiff claims in his affidavit that he w a s shot with the taser after he stopped. It is also undisputed that Plaintiff stated he had tw o heart attacks right before the officer deployed the taser. Plaintiff then fell to the
MEMORANDUM DECISION AND ORDER ­ 4

g ro u n d and asked to be taken to the hospital as his heart was hurting. Deputy Hoodman c a lle d for emergency medical services and McMillian was taken to the hospital and re le a s e d later that day. D e p u ty Hoodman claims he used the taser because McMillian was not complying w ith his orders and for officer safety as he was concerned McMillian may have a weapon in the house and if he entered the house, he would not come out again. Deputy Hoodman o n ly shot the taser once and it cycled for approximately 5 seconds. Deputy Hoodman is c e r ti f i e d in how to properly use a taser and is also a certified taser instructor. The Gem C o u n t y Sheriff's Department had written policies regarding the use of force and the use o f a taser at the time of this incident. M c M illian was charged with two misdemeanor citations for four separate v io la tio n s : resisting and obstructing arrest in violation of Idaho Code § 18-705; leaving th e scene of an accident in violation of Idaho Code § 49-1301; failure to notify law e n f o rc e m e n t of an accident in violation of Idaho Code § 49-1305; and inattentive and c a re le s s driving in violation of Idaho Code § 49-1401(3). It is undisputed that Deputy Hoodman had the statutory authority to arrest M cM illian for leaving the scene of an accident. Idaho Code § 49-1405(e). A s a result of a plea agreement, McMillian pled guilty to an amended charge of f a ilu re to stop or give information following an accident that results in damage to p ro p e rty in violation of Idaho Code § 49-1405.

MEMORANDUM DECISION AND ORDER ­ 5

P lain tiff filed his Complaint alleging negligence on the part of Deputy Hoodman's a tte m p t to arrest Plaintiff based on a lack of training and use of excessive force; c o n stitu tio n a l violations of excessive force in violation of Plaintiff's Fourth and F o u r te e n th Amendment rights; and Section 1983 claims of deprivation of equal protection p u rs u a n t to the Fourteenth Amendment and deprivation of Plaintiff's substantive due p ro c e ss rights guaranteed by the Fourteenth Amendment. Plaintiff alleges that as aresult o f the taser shock, he has suffered chest pain, seizures and four broken sternal sutures. P la in tif f will continue to suffer from a dehiscued sterum that cannot be repaired. P lain tif f has named Gem County as a defendant as well as Gem County Sheriff's D e p a rtm e n t, Clint Short in his official capacity as Sheriff and Craig Hoodman in his o f f ic ia l capacity as a Deputy Gem County Sheriff. The Defendants deny Plaintiffs claims a n d move for summary judgment.

Standard of Review M o tio n s for summary judgment are governed by Rule 56 of the Federal Rules of C iv il Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered f o rth w ith if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material f a ct and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P . 56(c).
MEMORANDUM DECISION AND ORDER ­ 6

T h e Supreme Court has made it clear that under Rule 56 summary judgment is m a n d a te d if the non-moving party fails to make a showing sufficient to establish the e x is te n c e of an element which is essential to the non-moving party's case and upon which th e non-moving party will bear the burden of proof at trial. See, Celotex Corp v. Catrett, 4 7 7 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any e ss e n tia l element, "there can be no `genuine issue of material fact,' since a complete f a ilu re of proof concerning an essential element of the nonmoving party's case necessarily re n d e rs all other facts immaterial." Id. at 323.1 M o re o v e r, under Rule 56, it is clear that an issue, in order to preclude entry of s u m m a r y judgment, must be both "material" and "genuine." An issue is "material" if it a f f e c ts the outcome of the litigation. An issue, before it may be considered "genuine," m u st be established by "sufficient evidence supporting the claimed factual dispute . . . to re q u ire a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v . Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. I n c ., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British

1

See also, Rule 56(e) which provides, in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

MEMORANDUM DECISION AND ORDER ­ 7

M o to r Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th C ir. 1989). A cc o rd in g to the Ninth Circuit, in order to withstand a motion for summary ju d g m e n t, a party (1 ) must make a showing sufficient to establish a genuine issue of fact with re sp e c t to any element for which it bears the burden of proof; (2) must show th a t there is an issue that may reasonably be resolved in favor of either p a rty; and (3) must come forward with more persuasive evidence than w o u ld otherwise be necessary when the factual context makes the nonm o v in g party's claim implausible. Id. at 374 (citation omitted). O f course, when applying the above standard, the court must view all of the e v id e n c e in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1 9 9 2 ). A n a l ys i s G e m County Sheriff's Department " G e m County Sheriff's Department" is not a legal entity. Maxwell v. Henry, 815 F . Supp. 213, 215 (S.D. Tex. 1993. Nor is the Gem County Sheriff's Department a " p e rs o n " for purposes of § 1983 litigation. Vance v. County of Santa Clara, 928 F. Supp. 9 9 3 (N.D. Cal. 1996). Plaintiff has also sued "Gem County" which is the proper legal

MEMORANDUM DECISION AND ORDER ­ 8

e n t ity to be sued in this type of case. Therefore, as a matter of law, the claims against D e f en d a n t Gem County Sheriff's Department must be dismissed.

C o n s titu tio n a l Claims and Section 1983 Claims T h e Constitutional violations and the 1983 claims are intertwined. Basically,

P la i n t i f f is claiming Deputy Hoodman unlawfully seized him and used excessive force by u s i n g the taser. The purpose of 42 U.S.C. § 1983 is to deter state actors from using the b a d g e of their authority to deprive individuals of their federally guaranteed rights and to p ro v id e relief to harmed parties. See Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a c laim under § 1983, a plaintiff must allege facts which show a deprivation of a right, p riv ile g e or immunity secured by the Constitution or federal law by a person acting under co lor of state law. Id. Acting under color of state law is "a jurisdictional requisite for a § 1983 action." West v. Atkins, 487 U.S. 42, 46 (1988). In this case, it is not disputed t h a t Deputy Hoodman was acting under color of state law when he responded to the d is p a tc h call. Therefore, the question becomes, did Deputy Hoodman's actions deprive P la in tif f McMillian of a right, privilege or immunity secured by the Constitution or f e d e ra l law.

MEMORANDUM DECISION AND ORDER ­ 9

Q u a lifie d Immunity D e f en d a n t Deputy Hoodman has raised the defense of qualified immunity. Police o f f ice rs are entitled to "qualified immunity" for their actions within the scope of their e m p lo ym e n t "insofar as their conduct does not violate clearly established statutory or c o n stitu tio n a l rights of which a reasonable person would have known." Harlow v.

F itzg e ra ld , 457 U.S. 800, 815 (1982). The purpose of qualified immunity is to "avoid e x c es s i v e disruption of government and permit the resolution of many insubstantial c la im s on summary judgment." Saucier v. Katz, 533 U.S. 194, 200, 202 (2001). On the o t h e r hand, this privilege allows redress where clear wrongs are caused by state actors. Id . "The privilege is an immunity from suit rather than a mere defense to liability, and lik e an absolute immunity, it is effectively lost if a case is erroneously permitted to go to tria l." Id. at 200-01. "As a result, [courts] have repeatedly stressed the importance of re so lv in g immunity questions at the earliest possible stage in litigation," long before trial. Id . at 201, see also Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (citing H u n te r v. Bryant, 502 U.S. 224 (1991)). The initial question in determining whether an officer is entitled to qualified im m u n i ty is whether, taken in the light most favorable to the party asserting injury, the f a cts alleged show that the defendant's conduct violated a constitutional right. Saucier v. K atz, 533 U.S. 194, 201, (2001); Billington v. Smith, 292 F.3d 1177, 1183 (9th Cir. 2 0 0 2 ). If not, "there is no necessity for further inquiries concerning qualified immunity."
MEMORANDUM DECISION AND ORDER ­ 10

S a u c i e r, 533 U.S. at 201. If, however, a violation could be established under the facts p re se n te d , the next step is to determine whether the right was "clearly established." Id. " T h e relevant, dispositive inquiry in determining whether a right is clearly established is w h e th e r it would be clear to a reasonable officer that his conduct was unlawful in the situ a tio n he confronted." Id. at 202. "The question is what the officer reasonably u n d e rs to o d his powers and responsibilities to be, when he acted, under clearly established stan d ard s." Id. at 208. Plaintiff bears the burden of establishing the rights violated were " c le a rly established." Houghton v. South, 965, F.2d 1532, 1534 (9 th Cir. 1992). " [ S ]e c tio n 1983 `is not itself a source of substantive rights,' but merely provides `a m e th o d for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 3 8 6 , 393-94 (1989). Therefore, the Court will analyze the specific constitutional rights P la in tif f alleges were violated by Deputy Hoodman.

A. Unreasonable Seizures Based on Excessive Force In Graham v. Connor, 490 U.S. 386, 395 (1989), the Supreme Court held that a c la im for unreasonable seizure of a person due to excessive force should be analyzed u n d e r the Fourth Amendment's "reasonableness" standard, rather than as a substantive d u e process claim. "Determining whether the force used to effect a particular seizure is " re a s o n a b le " under the Fourth Amendment requires a careful balancing of `the nature and q u a lity of the intrusion on the individual's Fourth Amendment interests' against

MEMORANDUM DECISION AND ORDER ­ 11

c o u n te rv e ilin g governmental interests at stake." Id. at 396. The Ninth Circuit has said a c o u rt must ask "whether under the circumstances, `including the severity of the crime at i s s u e , the suspect poses an immediate threat to the safety of the officers or others, or w h e th e r he is actively resisting arrest or attempting to evade arrest by flight.'" Billington v . Smith, 292 F.3d 1177, 1184 (9th Cir. 2002) (citations omitted). "The `reasonableness' o f a particular situation must be judged from the perspective of a reasonable officer on the s c e n e , rather than with the 20/20 vision of hindsight." Graham at 396 (citations omitted). This standard is based in part on the reality "that police officers are often forced to make s p lit second judgments -- in circumstances that are tense, uncertain, and rapidly evolving ­ about the amount of force that is necessary in a particular situation." Id. at 397. "The re a so n a b le n e ss inquiry is objective, without regard to the officer's good or bad m o tiv a tio n s or intentions." Billington at 1184. Plaintiff argues that under a reasonableness analysis, Deputy Hoodman did not act re a so n a b ly when he deployed the taser with knowledge of Plaintiff's precarious physical c o n d itio n . Defendants maintains the use of the non-lethal taser was reasonable under the c irc u m s ta n c e s . The Court agrees with the Defendants. Taking the facts in the light most favorable to the Plaintiff, the facts alleged do not s h o w that the deputy's conduct violated a constitutional right. In applying the factors set f o rth in Billington, the Court finds Deputy Hoodman's actions were reasonable. First, as to the severity of the crime at issue, the Idaho statutes have defined the crime of leaving
MEMORANDUM DECISION AND ORDER ­ 12

th e scene of an accident a serious crime for which arrest is appropriate. Idaho Code § 491 4 0 5 (e ). Therefore, there can be no claim of a violation of Fourth Amendment rights for a n unreasonable seizure based upon an unlawful arrest. Second, the suspect did pose a

p o te n tia l immediate threat to the safety of the officer or others. McMillian was adamant h e was not going to be arrested or go to jail. While his earlier conversations with the d e p u ty had been cooperative, the attitude and behavior of McMillian changed after he w a s told he was under arrest and the deputy was correct in wanting to prevent the Plaintiff f ro m returning to his house. This incident occurred in a rural environment and the law e n f o rc e m e n t officer did not personally know the Plaintiff. The deputy did not know w h e th e r Plaintiff had a firearm or other possible weapons in his residence that might p l a c e the deputy's safety in danger. Moreover, in this case the Defendant claimed his m e d ic a tio n was affecting him and led to the accident. The Defendant continued driving th a t day even after the accident and the officer could easily justify arresting the Plaintiff to keep him from driving again that day while he may still be impacted by the medication. T h ird , in evaluating whether the suspect he was actively resisting arrest or a tte m p tin g to evade arrest by flight the answer is clearly yes based on the video/audio tape o f the events. Plaintiff was resisting arrest and was non-compliant with the officer's in s tru c tio n s . If Plaintiff had stayed sitting at the back of the truck, the analysis would be d i f f e re n t . Instead, Plaintiff verbally informed the officer he was not going to jail because

MEMORANDUM DECISION AND ORDER ­ 13

h e had done nothing wrong, began walking to his house and he did not obey the deputy's in s tru c tio n s to stay at the truck or on the ground. P la in tif f wants the Court to focus on the precarious physical condition of the P la in t if f . The condition of the Plaintiff actually known to the deputy does not impact the a b o v e analysis. While it is true Deputy Hoodman knew Plaintiff had been on some m e d ic a tio n and had suffered a brain trauma some time in the past, the deputy did not k n o w Plaintiff personally, the Plaintiff answered the deputy's questions coherently, the P la in tif f did not show physical signs of weakness and Plaintiff's explanations of not w a n tin g to be arrested because the officer would hurt him was not adequately explained to the officer. Plaintiff never asked if he could put his hands in front as putting my hands b e h in d his back would possibly damage McMillian's sternum. Instead, Plaintiff just said n o to the deputy's instructions without explanation and refused to be placed under arrest. T h e n a split second before the officer deployed the taser, the Plaintiff informed the deputy h e had suffered two heart attacks. The timing of this medical information and the

P la in tif f 's failure to comply with the officer's orders to get on the ground, did not provide a reasonable amount of time for the deputy to change his course of conduct. While P l a in t i f f 's briefing states the Plaintiff is a disabled veteran, these facts and the reasons w h y he was disabled were not disclosed to the officer so cannot be considered in d e te rm in in g whether the deputy acted reasonably and/or violated Plaintiff's Constitutional ri g h ts .
MEMORANDUM DECISION AND ORDER ­ 14

W h i le Plaintiff maintains the use of the taser was excessive force, the Court d i s a g re e s . The use of the taser was an appropriate level of force for Plaintiff's nonc o m p lian c e . The effects of a taser are generally temporary and a taser is considered to in f lic t less pain than other forms of force. Beaver v. City of Federal Way, 507 F. Supp. 2 d 1137 (W.D. Wash. 2007). Under the circumstances of a non-compliant person who h a s been told he is under arrest, the actions of the Plaintiff moving towards his house w o u ld be perceived by a reasonable officer as a substantial risk to the officer's safety. W h ile it may have been possible for the Deputy to have used less force, that is not the r e le v a n t inquiry. The officer need not use the least intrusive force available, but must use re a so n a b le force based on the circumstances presented. Billington, 292 F.3d 1177, 11888 9 (9th Cir. 2002). Therefore, based on the actual circumstances presented in the video and audio ta p e , the Court finds the actions of Deputy Hoodman were reasonable as evaluated under th e factors set forth in Billington.2 The situation became tense, uncertain and repidly e v o lv in g and the deputy had to make a split second decision to use a non-lethal means to a rre st the Plaintiff. Having found the firing of the non-lethal taser was reasonable, the

Plaintiff submitted the affidavit of D.P. Van Baricom to claim that there is a genuine issue of material fact regarding whether or not the deputy's actions were reasonable and to argue that the issue should be decided by a jury. Under the relevant case law, it is the job of the Court to view the undisputed facts from the tape and apply the factors set forth in Billington to determine if there are genuine issue of fact regarding whether the deputy acted reasonably. The Court finds the expert's opinion is insufficient to create a genuine issue of material fact as to objective reasonableness in this particular case where the investigation and arrest were recorded.
MEMORANDUM DECISION AND ORDER ­ 15

2

C o u rt finds there was not a constitutional violation of unlawful seizure and excessive fo rce and the qualified immunity analysis ends. Defendants' motion for summary

ju d g m e n t on Plaintiff's §1983 claims and constitutional claims for unreasonable search a n d seizure and excessive force should be granted. Moreover, had the Court found it necessary to determine the immunity question, it w o u ld have concluded that Deputy Hoodman's use of force did not violate Plaintiff's c lea rly established rights. See Johnson v. County of Los Angeles, 340 F.3d 787, 794 (9th C ir. 2003) (explaining "the concern of the immunity inquiry is to acknowledge that re a s o n a b le mistakes can be made as to the legal constraints on particular police conduct . . . and [the Defendant officer] reasonably could have believed that his conduct was lawful u n d e r the circumstances"); Beaver, 507 F. Supp. 2d 1137 (W.D. Wash. 2007) (use of tas e r first three times did not violate constitutional rights and use of taser fourth and fifth tim e was a violation, but law was not clearly established).

C . Equal Protection Pursuant to the Fourteenth Amendment In reviewing the facts of this case in alight most favorable to Plaintiff, the Court f in d s there are no facts to support a violation of the Equal Protection Clause of the F o u rte e n th Amendment. Moreover, Plaintiff appears to no longer claim relief under this C o n s titu tio n a l claim and is instead focusing on the unlawful seizure and excessive force c la im . Accordingly, this claim must be dismissed.
MEMORANDUM DECISION AND ORDER ­ 16

D . Substantive Due Process Pursuant to the Fourteenth Amendment T h e United States Supreme Court has eliminated substantive due process claims in the context of Fourth Amendment cases. Graham v. Connor, 490 U.S. 386 (1989).

A c c o rd in g ly, the Defendants are entitled to summary judgment on the alleged substantive d u e process claims.

D ef en d an ts Gem County and Sheriff Short In addition to naming the investigating deputy, Plaintiff has also named as D e f e n d a n ts Gem County and Sheriff Short. Since Plaintiff has sued Defendant Short in h is official capacity, this is actually a claim against the municipality and will be analyzed th e same way as the claim against Gem County. To make a claim against a municipality f o r a § 1983 violation, four criteria must be satisfied: ( 1 ) That [the Plaintiff] possessed a constitutional right of which he was d e p riv e d ; (2) that the municipality had a policy; (3) that the policy "amounts to deliberate indifference" to the Plaintiff's constitutional right; and (4) that th e policy is the "moving force behind the constitutional violation.."

O v i a tt v. Pearce, 954 F.2d 1470, 1474 (9 th Cir. 1992) (quoting City of Canton v. Harris, 4 8 9 U.S. 378, 389-91 (1989)). A municipality may not be held liable under § 1983 solely because it employed a co n stitutio n al wrongdoer. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

MEMORANDUM DECISION AND ORDER ­ 17

F u r th e rm o re , a municipality cannot be held liable under § 1983 where no constitutional v io la tio n has occurred. Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir. 1997). Having determined that Deputy Hoodman did not violate Plaintiff's Constitutional rig h ts , the Court need not analyze the claims against Defendants Gem County or Sheriff S h o r t because neither a municipality nor a supervisor can be held liable under § 1983 w h e re no constitutional violation has occurred. Therefore, Defendants Gem County and S h e rif f Short are also entitled to entry of summary judgment in their favor. See Sweaney; J a c k so n v. City of Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001): City of Los Angeles v . Heller, 475 U.S. 796, 799 (1986);

Negligence Claim In Plaintiff's Complaint, McMillian avers that the Defendants breached a duty of c a r e to exercise reasonable care and to follow reasonable proper police procedures. S p e c i f ic a lly, Plaintiff submits Deputy Hoodman was negligent by: 1) attempting to arrest P la in tif f without training or ability necessary to avoid use of deadly force; 2) using e x c es s iv e force grabbing, shoving, twisting Plaintiff's arms and then shooting Plaintiff w ith a taser gun; 3) attempting to arrest Plaintiff without following department policy and p ro c e d u re ; 4) negligently resorting to a weapon that could cause deadly force or bodily in ju ry when such force was not required; 5) failure to recognize Plaintiff's dazed and d is o rie n te d state; 6) failing to timely notify dispatch of he need for backup; and 6) failing
MEMORANDUM DECISION AND ORDER ­ 18

to recognize Plaintiff's medical condition and ignoring Plaintiff's pleas to defer to that c o n d itio n . Defendants argue the negligence claim should be dismissed as Plaintiff is seeking to circumvent the statutory immunity for an assault and battery claim under Idaho Code § 6-904(3) which requires a showing of malice or criminal intent on the part of the g o v e r n m e n ta l employee. Here, Defendant argues, there are no facts to support a finding o f malice or criminal intent on the part of Deputy Hoodman. The Plaintiff does not rebut th is argument. Defendant also argues Plaintiff cannot avoid immunity by pleading the c laim for assualt and battery as a negligence claim. The Court agrees and relies on White v . University of Idaho, 797 P.2s 108 (1990). In Plaintiff's supplemental briefing, he argues that the claim for negligence is d if f e re n t from a claim of assault and battery in that negligence requires a breach of duty. K e ss le r v. Barowsky, 931 P.2d 641, 648 (1997). Plaintiff states the alleged breach of d u ty in this case is the duty of a police officer not to subject the person being arrested to a n y more force or restraint than is necessary. This Court does not adopt such a broad d u ty. Rather, the duty is more properly stated as a police officer must not use excessive f o rc e in arresting a person and the officer's conduct must be reasonable in light of the c irc u m s ta n c es presented. A police officer's conduct need not be the "least intrusive

m e a n s ," but only need to be "within that range of conduct ... identif[ied] as reasonable." B illin g to n v. Smith, 292 F.3d 1177, 1188-89 (9th Cir. 2002). This Court has found

MEMORANDUM DECISION AND ORDER ­ 19

D e p u ty Hoodman's actions were reasonable and did not rise to the level of excessive f o rc e under the Constitution. Therefore, there has been no breach of duty as a matter of la w and the negligence claims must be dismissed.

M o tio n s to Strike T h e Court finds the Plaintiff's supplemental briefing and affidavit to be relevant a n d will consider the same. The motions to strike are denied. O rd e r B e in g fully advised in the premises, the Court hereby orders that: 1 ) Defendants' Motion for Summary Judgment (Docket No. 29) is GRANTED. 2) Defendants' Motion to Strike Supplemental Memorandum (Docket No. 28) is D E N IE D . 3 ) Defendants' Motion to Strike Affidavit of Van Blaricom (Docket No. 39) is D E N IE D . DATED: November 25, 2008

Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM DECISION AND ORDER ­ 20