Uribe v. Tillamook Police Department et al

Filing 63

Opinion and Order. Defendant's Motion for Summary Judgment 48 granted; case dismissed. Any appeal of this decision or the Judgment dismissing this action would be frivolous and not taken in good faith. Plaintiffs IFP status revoked. Signed on 10/25/19 by Judge Michael J. McShane.(Mailed to Pro Se party on 10/25/19.) (kf)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

JUSTIN PATRICK URIBE,
Plaintiff,

Case No. 3:18-cv-01136-MC
OPINION AND ORDER

v.
GREINER, City of Tillamook Police Officer;
BOMAR, Sergeant, City of Tillamook Police
Officer; WRIGHT, Chief, City of Tillamook
Police Officer,
Defendants.
_____________________________________
MCSHANE, District Judge:
Plaintiff filed this action under 42 US.C. § 1983, alleging that defendants used excessive
force in violation of the Fourth Amendment when effectuating his arrest in December of 2017.
Defendants now move for summary judgment under Federal Rule of Civil Procedure 56, arguing
that plaintiff’s claims are barred, and that defendants’ actions did not violate his constitutional
rights. Because plaintiff fails to show that defendants’ use of force was excessive under the
totality of the circumstances, defendants’ motion for summary judgment is granted.
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BACKGROUND
On December 6, 2017, City of Tillamook Police Officer Dennis Greiner was dispatched
to the Fred Meyer store in Tillamook, Oregon, based on a reported disturbance between plaintiff
and his girlfriend. Greiner Decl. ¶ 4 (ECF No. 51).
Prior to Officer Greiner’s arrival, Fred Meyer employees observed plaintiff physically
assaulting his girlfriend as he either led or dragged her through the store. Renault Decl. ¶¶ 3-5
(ECF No. 52).1 A Fred Meyer Loss Prevention Officer, Nick Renault, was notified, and Renault
confronted plaintiff and told him to release his girlfriend. Plaintiff complied and Renault ordered
plaintiff to leave the store. Id. ¶ 6.
Plaintiff began walking backwards towards the exit; he then stopped and began walking
towards Renault, who warned plaintiff to leave the store. Id. ¶ 7. As plaintiff walked backwards
towards the exit, he reached behind his back and Renault ordered him to keep his hands out of
his pockets. After plaintiff initially complied, he again reached behind his back. Id. Renault
yelled, “This is your last warning, don’t do it! Leave now!” Id. Plaintiff walked out of the store,
and Renault called 9-1-1. Renault Decl. ¶ 7.
As he was talking with the 9-1-1 dispatcher, Renault went outside to locate plaintiff, who
was getting into his vehicle. Id. ¶ 8. After a few seconds, plaintiff got out of his car and Renault
told him that if he did not leave immediately, it would be a criminal trespass and the police
“would be involved.” Id. After hearing that the police would be arriving, plaintiff got back into
his car and drove around the parking lot to the store entrance. Id. Officer Greiner arrived on the
scene in his police vehicle and pulled in behind plaintiff. Id.
Plaintiff allegedly used an “arm bar” to control his girlfriend as they walked through the
store. Renault Decl. ¶ 3. “An arm bar is a joint lock technique that hyperextends the elbow joint
and is used as pain compliance technique.” Id. Plaintiff also struck his girlfriend several times
and slammed her into a self-checkout station. ¶¶ 4-5.
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When Officer Greiner arrived, he observed plaintiff near the store entrance, shouting at
Renault. Greiner Decl. ¶ 5. Officer Greiner exited his vehicle and instructed plaintiff to show his
hands and remove the keys from the ignition; plaintiff complied. Id. ¶ 6. Officer Greiner also
asked plaintiff to exit the vehicle and place his hands on the roof, and plaintiff again complied.
Id. City of Tillamook Police Sergeant Erica Bomar arrived at the scene around this time. Bomar
Decl. ¶ 6 (ECF No. 50).
As plaintiff placed his hands on the vehicle, Officer Greiner moved forward to place
plaintiff into handcuffs. Greiner Decl. ¶ 7. Plaintiff pulled away and struck the left side of
Officer Greiner’s face with his left elbow. Id. Officer Greiner and plaintiff struggled briefly, and
Officer Greiner kicked plaintiff’s legs from beneath him – sometimes called a “leg sweep” – and
both plaintiff and Officer Greiner fell to the ground. Id. As Officer Greiner attempted to place
plaintiff into handcuffs, plaintiff struggled with Officer Greiner and attempted to stand up and
get into his car. Bomar Decl. ¶ 7.
Sgt. Bomar and Renault tried to assist Officer Greiner in handcuffing plaintiff, but
plaintiff pulled his arms underneath his body to avoid the handcuffs. Greiner Decl. ¶ 9; Bomar
Decl. ¶ 8. Eventually, Sgt. Bomar was able to handcuff plaintiff’s right wrist, but she could not
handcuff his left wrist, as plaintiff continued to resist. Id. After nearly two minutes of struggling,
Renault and Officer Greiner placed their bodyweight on plaintiff in an attempt to gain control of
him, but plaintiff still resisted. Greiner Decl. ¶ 10. Officer Greiner repeatedly told plaintiff to
stop resisting or he would be “tased,” and plaintiff ignored these commands and continued to
struggle. Id. ¶ 8.
As the struggle continued, plaintiff “overpowered” the officers and sat up while Officer
Greiner was on top of plaintiff’s back. Bomar Decl. ¶ 10; Greiner Decl. ¶ 10. Plaintiff then went
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to his hands and knees and shifted his weight, and Officer Greiner fell off of plaintiff’s back. Id.
Officer Greiner lost his grip, and plaintiff stood up to get into his car. Id.
Sgt. Bomar yelled to Officer Greiner, “Where’s your Taser?” just as plaintiff stood up.
Bomar Decl. ¶ 10. Officer Greiner drew his taser, shouted “taser” three times, and shot taser
probes into plaintiff’s back for a five-second cycle. Id.; Greiner Decl. ¶ 12. Plaintiff fell to the
ground, and Sgt. Bomar and Renault placed plaintiff in handcuffs. Id.; Bomar Decl. ¶ 11.
Chief Wright arrived on the scene as plaintiff was lying on his stomach in handcuffs with
Taser probes visible on his back. Wright Decl. ¶ 5 (ECF No. 49). Chief Wright contacted
dispatch and requested an ambulance be sent for medical assistance, and plaintiff was transported
to the Tillamook Regional Medical Center Emergency Room for evaluation. Id.; Greiner Decl. ¶
13. Plaintiff was ultimately charged with assault of a police officer, assault, resisting arrest, and
disorderly conduct. Greiner Decl. ¶ 14.
On December 14, 2017, plaintiff was indicted on charges of Assaulting a Public Safety
Officer, Resisting Arrest, Disorderly Conduct in the Second Degree, Assault in the Fourth
Degree Constituting Domestic Violence, Attempted Assault in the Fourth Degree Constituting
Domestic Violence, and Harassment. Warren Decl. Ex. 1 (ECF No. 53).
On May 2, 2018, after trial by jury, plaintiff was convicted on all charges except for
attempted assault, which was merged with the assault charge, and he was sentenced to a term of
imprisonment. Warren Decl. ¶¶ 3-4 & Ex. 2.
On June 27, 2018, plaintiff filed this action and alleged numerous claims against various
law enforcement officers, the Tillamook District Attorney’s Office, the public defenders’
consortium, the local Fred Meyer store, and a local newspaper. This Court dismissed plaintiff’s

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claims and allowed plaintiff to amend his complaint. Ultimately, plaintiff was allowed to proceed
on his excessive force claims against Chief Wright, Officer Greiner, and Sgt. Bomar.
DISCUSSION
Plaintiff alleges that defendants violated his Fourth Amendment rights by using physical
force and a taser when effectuating his arrest. Defendants move for summary judgment on
grounds that plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and in the
alternative, that the force used was reasonable and necessary under the circumstances. To prevail
on their motion, defendants must show that there is no genuine dispute as to any material fact
and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The court must construe the evidence and draw all reasonable
inferences in the light most favorable to plaintiff. Torres v. City of Madera, 648 F.3d 1119, 1123
(9th Cir. 2011). I find that plaintiff cannot sustain his Fourth Amendment claims and do not
address defendant’s arguments under Heck.
As an initial matter, Chief Wright did not personally participate in the use of force, and
he cannot be held liable for the actions of his subordinates. See Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989) (holding that liability under § 1983 arises upon a showing of personal
participation in the alleged constitutional violations). Plaintiff does not dispute that Chief Wright
arrived on the scene only after plaintiff was handcuffed and was not involved in his arrest.
Accordingly, Chief Wright is entitled to summary judgment.
With respect to Officer Wright and Sgt. Bomar, I find that their use of force against
plaintiff was reasonable under the circumstances, based on the undisputed evidence reflecting
that plaintiff was resisting arrest and attempting to evade officers.

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Allegations of excessive force are analyzed under the Fourth Amendment’s prohibition
on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford,
272 F.3d 1272, 1279 (9th Cir. 2001). “The Fourth Amendment requires police officers making
an arrest to use only an amount of force that is objectively reasonable in light of the
circumstances facing them.” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007).
To determine the reasonableness of the force used, the court must balance “‘the nature and
quality of the intrusion on the individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985)). Notably, the Ninth Circuit has held that tasers “when used in dartmode constitute an intermediate, significant level of force that must be justified by the
governmental interest involved.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010).
To evaluate the government’s interest, a court must consider “the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.
at 396. A court may also consider whether the officer issued a warning before the force was
used. Bryan, 630 F.3d 831. Ultimately, the issue is whether the totality of the circumstances
justified the amount of force used. County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546
(2017). In this case, it did.
When Officer Greiner arrived at the scene, he knew plaintiff was involved in a physical
disturbance and had observed plaintiff shouting at Renault. Greiner Decl. ¶¶ 4-5. When Officer
Greiner attempted to effectuate his arrest, plaintiff assaulted Officer Greiner, struggled with two
law enforcement officers and a private security officer, and attempted to escape. Further, Officer
Greiner warned plaintiff that he would be tased if he did not comply. Plaintiff does not dispute
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the evidence presented by defendants, other than to assert that they are “lying,” and that he
possesses additional, but unsubmitted, evidence of the altercation. Pl.’s Response at 2, 8 (ECF
No. 58). Plaintiff’s conclusory assertions do raise a genuine issue of fact to defeat summary
judgment, and I accept defendants’ evidence as undisputed. See Hernandez v. Spacelabs Medical
Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (stating that a nonmoving party “cannot defeat
summary judgment with allegations in the complaint, or with unsupported conjecture or
conclusory statements”). Based on these undisputed facts, defendants’ use of force was
reasonable. See Jones v. Las Vegas Metropolitan Police Dep’t, 873 F.3d 1123, 1127, 1130 (9th
Cir. 2017) (“This decision was consistent with our case law, as we’ve held that use of tasers can
be intermediate force. Using a taser to stop Jones and place him under arrest was reasonable
under the circumstances.”) (citation omitted).
At minimum, Officer Greiner and Sgt. Bomar are entitled to 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 constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To be clearly established, a legal
principle…must be settled law, which means it is dictated by controlling authority or a robust
consensus of cases of persuasive authority…Otherwise, the rule is not one that every reasonable
official would know.” District of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018) (citations
and internal quotation marked omitted).
At the time of plaintiff’s arrest, the Ninth Circuit had held that qualified immunity
applied to an officer’s use of “an arm grab, and then a leg sweep maneuver, when a
misdemeanant refuses to comply with the officer’s orders and resists, obstructs, or delays the
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officer in his lawful performance of duties such that the officer has probable cause to arrest him.”
Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). Notably, the plaintiff in
Shafer was accused of only throwing water balloons and had not assaulted an officer. Id. at 111314. Further, the Ninth Circuit had found that using a taser once was reasonable to “subdue” and
arrest a person who allegedly disobeyed an officer’s orders and fled from a traffic stop, despite
the fact that the person had not threatened the officer or committed a serious offense. Jones, 873
F.3d at 1127, 1130.
Given the Ninth Circuit’s 2017 decisions in Shafer and Jones, no “settled” caselaw would
have put Officer Greiner or Sgt. Bomar on notice that they would have violated plaintiff’s clearly
established rights by using physical force and a single taser cycle after plaintiff assaulted his
girlfriend and a police officer, actively resisted arrest, and tried to escape.
CONCLUSION
Defendants’ Motion for Summary Judgment (ECF No. 48) is GRANTED. This case is
DISMISSED. Any appeal of this decision or the Judgment dismissing this action would be
frivolous and not taken in good faith. Accordingly, plaintiff’s IFP status is REVOKED.
IT IS SO ORDERED.
DATED this 25th day of October, 2019.

s/ Michael J. McShane
Michael J. McShane
United States District Judge

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