Martin v. City of Nampa et al

Filing 49

MEMORANDUM DECISION AND ORDER. Defendant Burns' Motion for Summary Judgment (Dkt. 44 ) is GRANTED. Defendant's Motion to Seal (Dkt. 45 ) is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHANNON NOAH MARTIN,
Case No. 1:15-cv-00053-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CITY OF NAMPA, et. al.,
Defendants.

INTRODUCTION
The Court has before it Defendant Burns’ Motion for Summary Judgment (Dkt.
44). The Court has already dismissed all claims against the City of Nampa, and Martin’s
counsel withdrew because he had difficulty staying in contact with Martin. Defendant
Burns has now askes for summary judgment, and although the Court notified Martin of
his duty to respond to the motion, he has failed to do so. As explained below, the motion
will be granted.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Martin suffers from ankylosing spondylitis, a disease which has caused the
vertebrae in Martin’s back to fuse together. Consequently, Martin walks with a “slow
shamble” and has a hunched stature. Compl. at ¶ 8, Dkt. 1. On August 3, 2013, Martin
shopped at a retail store in Nampa, Idaho. Id. at ¶ 11. Officer Deny Burns was on routine
patrol when dispatch received an anonymous call that Martin was shopping at that store.
Pl.’s Resp. at 1-2, Dkt. 23. Martin had three outstanding misdemeanor warrants. After
the call, Burns and other officers were dispatched to the store in order to serve the
warrants on Martin. Id.
Burns approached Martin from behind as Martin entered the checkout area. Burns
initiated contact with Martin by grabbing Martin’s wrist. Id. at 3, Dkt. 23. Martin
responded by turning away from Burns. Id. Burns claims that Martin appeared to reach
into his pocket, although Martin claims that he did not attempt to flee or display a
weapon. Answer, ¶ 10, Dkt. 6; Compl., ¶ 14, Dkt. 1. Burns then grabbed Martin and
knocked him to the ground. The facts are disputed as to whether Burns purposefully
threw Martin to the ground or inadvertently lost his balance, causing both men to fall to
ground. Compl., ¶ 16 (Dkt. 3); Answer, ¶ 10 (Dkt. 6). Martin fell to the ground with
Burns landing on top of him. Officers then placed Martin’s arms behind his back. Pl.’s
Resp. at 4, Dkt. 23. Martin’s spinal condition made it difficult for the officers to move his
arms. Id.

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Martin sustained a wound on his nose and pain in his right shoulder. Compl., ¶ 18,
Dkt. 1. Subsequent X-rays confirmed that Martin suffered a fractured scapula. Id. at ¶ 21.
Martin then filed his 42 U.S.C. § 1983 claims against the City of Nampa and Officer
Deny Burns. After he filed the suit, the Police Department conducted an internal
investigation into this use of force on Martin. Pl.’s Resp. at 7. This investigation revealed
large discrepancies between the Police Department’s written policies regarding use of
force incidents and actual Police Department practice. Id.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.

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The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
ANALYSIS
1.

Qualified Immunity
The doctrine of qualified immunity “protects government officials from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Qualified immunity gives government officials
“breathing room to make reasonable but mistaken judgments about open legal questions.
When properly applied, it protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v. al–Kidd, 563 U.S. 731, 743 (2011). To determine
whether a government official is entitled to qualified immunity, the Court must determine
whether the facts alleged, taken in the light most favorable to the plaintiff, (1) violated a
statutory or constitutional right, (2) that was clearly established at the time of the
challenged conduct. Moonin v. Tice, 868 F.3d 853, 860 (9th Cir. 2017). Courts may use
their discretion deciding which of the two prongs to analyze first. Mueller v. Auker, 576
F.3d 979, 993 (9th Cir. 2009).
Martin asserts a Fourth Amendment claim of excessive force. “When evaluating a
Fourth Amendment claim of excessive force, courts ask whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them.” Hughs
v. Kisela, 862 F.3d 775, 779 (9th Cir. 2016) (Internal quotation and citation omitted). The
Court must balance the nature and quality of the intrusion on the plaintiff’s Fourth
Amendment interests against the government’s countervailing interests at stake. Id. “The
calculus of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments – in circumstances that are tense, uncertain,
and rapidly evolving – about the amount of force that is necessary in a particular

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situation.” Id. Thus, the Court must consider reasonableness from the perspective of a
reasonable officer on the scene, not from the perspective of 20/20 hindsight vision. Id.
“The strength of the government’s interest in the force used is evaluated by
examining three primary factors: (1) the severity of the crime at issue, (2) whether the
suspect poses an immediate threat to the safety of the officers or others, and (3) whether
[]he is actively resisting arrest or attempting to evade arrest by flight.” Id. These factors
are not exclusive, but the most important factor is whether the plaintiff posed and
immediate threat to the safety of the officers or others. Id. Still, the Court must consider
the totality of the circumstances and consider any factors specific to the situation at hand.
Id. Officers need not employ the least intrusive means available so long as they act within
a range of reasonable conduct.” Id.
Here, as suggested in Defendant’s brief, Martin’s excessive force claim is a bit of
a moving target because his Complaint alleges certain facts, but his deposition testimony
asserts some contradicting facts. The Complaint was sufficient to assert Martin’s claims,
but it is not evidence. On summary judgment, the Court must consider the actual
evidence in the record. As explained above, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000). The non-moving party then must
produce evidence sufficient to support a jury verdict in his favor. Deveraux, 263 F.3d at
1076. Notably, the non-moving party must go beyond the pleadings and show by way of

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affidavits, depositions, answers to interrogatories, or admissions on file that a genuine
dispute of material fact exists. Celotex, 477 U.S. at 324. This is the evidence the Court
must consider here, not the allegations in the Complaint.
The Court has combed through the record and considered all of the evidence
which could possibly support Martin’s claim. The following excerpts are everything from
Martin’s deposition that could possibly support his claim:
1. A: I believe – it felt like another officer hit me from behind. 41:16-17.
2. A: And then I’m still unclear about exactly what happened, whether I
was hit from another officer or he put me down. I don’t know what
happened. I just know I was on the ground suddenly and kind of coming
to, bleeding a lot. And then a lot of pain in my shoulder. 42:22 – 43:2.
3. Q: And then when somebody hit you from behind, where did they hit
you?
A: I don’t know. I just went down. But it didn’t seem like it was him
[Burns] at the time because I was looking at him. That’s why I felt like
it was someone else. 43:12-17.
4. My perspective was I was just on the ground. I didn’t know what
happened. 43:25 – 44:1.
5. I had a lot of them on me, the cops were on me at that point, more than
just Deny Burns. 44:6-8.
6. Q: How did your shoulder get broken?
A: Well, I’m assuming that when they hit me that’s when it got broke,
when it was broken.
Q: You believe somebody hit you and broke your shoulder?
A: Yes.
Q: With what?
A: I’m not sure.
Q: Did you have any sense that you were hit with an object?
A: I was hit really fast several times with something. I felt like.
Q: On your shoulder?

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A: In my back, I was facedown, yeah. I mean, I'm not sure what time,
did what to me. Once that happens there is just kind of like a pain in that
whole region of your body. I don't know what time.
Q: So are you alleging that you were hit when you were on the floor on
your shoulder?
A: Yes, absolutely.
Q: Whether that was a punch or an object, you just don't know.
A: Well, it was enough to break my scapula blade in multiple pieces.
Q: I get that, but -A: I have no idea.
Q: You just don't know.
A: I don't. I kind of seen stars for a minute.
Q: You don't know who hit you.
A: I do not. I know that Deny Burns had physical contact with me at
that point.
Q: Yes. I think we can all agree on that, that as you hit the floor he was
on top of you, was he not?
A: Yes. 49:2 – 50:11.
7. Q” As you sit here right now, tell me everything Deny Burns did, you've
got him named here, to violate your rights.
A: I'm unclear about that. What he did specifically? I just know he was
directly involved because he had contact on my person at that time. Like
I said, I didn't see the events happen as they happened. I was involved in
the event.
Q: You really don't know that Deny Burns actually did anything to your
shoulder, do you?
A: Well, yeah, I know he had ahold of my arm. I know we [sic] was
acting on behalf of the Nampa Police Department. I know it was either
him or his partner or another police officer working with him that struck
me, yes.
Q: Are you suggesting then that the shoulder break, the scapula break,
couldn't have happened by landing on the floor?
A: Absolutely.
Q: You are suggesting it could not have happened by landing on the
floor.
A: It did not happen by landing on the floor.
Q: And it didn't happen by the way your arm was being held as it went
to the floor.
A: I was struck repeatedly.
Q: When you say "repeatedly," can you tell me approximately –

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A: More than twice, more than four times. I was hit numerous times
with something hard, blunt.
Q: So at least four times you were hit.
A: I felt like six. I felt like six times.
Q: Approximately six times you were struck in the shoulder.
A: In the back and shoulder.
Q: But you don't by whom or with what.
A: No.
Q: Whatever that was, that incident itself, that striking -A: It occurred with Deny Burns holding on to my wrist, yes.
Q: -- you believe is what actually caused the shoulder break.
A: Being struck, yes. 74:7 – 75:24.
Martin Depo., Dkt. 44-3.
The Court has also reviewed the deposition testimony of the officers, including
Officer Burns. Officer Burns testified that he “put [Martin] to the ground.” Burns Depo.,
72:16, Dkt. 44-3. He gives a little more detail about how he “put Martin to the ground”
by indicating that he used a training technique to affect the arrest. Id. at 77:12-14. He
explains that his attempt was to stay on his feet, control Martin’s arm, and take him down
in a way that prevented Martin from landing with all of his body weight on the ground.
Id. at 78:21 – 79:1. But he slipped, and the technique did not work as planned. Instead, he
grabbed Martin’s right arm and shoulder, stepped in front of him, used his hip to take him
down, but also fell on top of him as he slipped. Id. at 77:20 – 78:19. Nothing in the record
disputes this testimony.
The Court has also reviewed the three videos recorded by the officers’ body
cameras. Kane Aff., Exs. C,D, & E, Dkt. 44-3. Most of the footage is irrelevant. The only
relevant portion is a few seconds of very blurry footage of the moment Martin is taken to

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the ground. At best, it shows Officer Burns taking Martin to the ground as explained in
Burns’ deposition.
Taking all of this evidence in the light most favorable to Martin, the Court finds as
a matter of law that Burns did not use excessive force. Martin makes clear that his injury
was not the result of landing on the ground. And it is clear that Burns was the officer who
put Martin on the ground. Instead, Martin states that his injuries resulted from being
struck. But he also makes clear that Burns was not the officer who struck him. None of
the other testimony or video evidence suggests otherwise.
No reasonable jury would find that Officer Burns’ actions were not objectively
reasonable in light of the facts and circumstances confronting him. Hughs, 862 F.3d at
779. Even assuming the severity of Martin’s crime was minor, that Martin posed no
substantial threat to the safety of the officers or others, and that Martin was not actively
resisting arrest or attempting to evade arrest by flight, Officer Burns’ actions were not
excessive. As noted above, officers need not employ the least intrusive means available
so long as they act within a range of reasonable conduct.” Id. Taking Martin to the
ground to handcuff him is in the range of reasonable conduct here, especially where there
is no evidence that Officer Burns injured Martin.
Under these circumstances, Officer Burns is entitled to qualified immunity
because he did not violate Martin’s constitutional rights under the Fourth Amendment.
Thus, the Court need not address whether any constitutional right was clearly established
at the time of the challenged conduct. Moonin v. Tice, 868 F.3d 853, 860 (9th Cir. 2017).

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Moreover, Martin’s claim simply fails because he has not asserted a constitutional
violation, notwithstanding the qualified immunity analysis. Accordingly, the Court will
grant the motion for summary judgment and dismiss this case in its entirety.
ORDER
IT IS HEREBY ORDERED:
1. Defendant Burns’ Motion for Summary Judgment (Dkt. 44) is GRANTED.
2. Defendant’s Motion to Seal (Dkt. 45) is GRANTED.
3. The Court will enter a separate judgment in accordance with Fed. R. Civ. P. 58.

DATED: November 13, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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