Bonivert v. Clarkston, City of et al

Filing 111

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT. Asotin County Defendants Motion for Summary Judgment ECF No. 61 is GRANTED. Clarkston Defendants Motion & Memorandum of Authorities in Support of Motion for Summary Judgment ECF No. 71 is GRANTED. Defendants Daubert Motion to Exclude Portions of Expert Witness Winthrop Taylors Report and Testimony ECF Nos. 77 , 79 is DENIED as moot. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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RYAN J. BONIVERT,
NO: 2:14-CV-0056-TOR
Plaintiff,

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ORDER RE: MOTIONS FOR
SUMMARY JUDGMENT

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

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BEFORE THE COURT are the following motions: Asotin County

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Defendants’ Motion for Summary Judgment (ECF No. 61); Clarkston Defendants’

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Motion & Memorandum of Authorities in Support of Motion for Summary

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Judgment (ECF No. 71); and Defendants’ Daubert Motion to Exclude Portions of

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Expert Witness Winthrop Taylor’s Report and Testimony (ECF Nos. 77, 79).

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These matters were heard with oral argument on March 12, 2015. Samual T.

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Creason appeared on behalf of Plaintiff. Ann E. Trivett appeared on behalf of the

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Asotin County Defendants. Christopher J. Kerley appeared on behalf of the City

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 1

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of Clarkston Defendants. The Court has reviewed the briefing and the record and

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files herein, heard from counsel, and is fully informed.

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BACKGROUND

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Plaintiff filed his initial Complaint in this action on February 25, 2014, 1

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alleging that Defendants violated 42 U.S.C. § 1983 when they, inter alia, entered

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and searched Plaintiff’s home without a warrant, applied excessive force,

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unjustifiably arrested Plaintiff without a warrant, and subjected Plaintiff to

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degrading treatment while in custody. ECF No. 1. Plaintiff has sued several

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County of Asotin and City of Clarkston officials in their individual capacities, as

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well as their spouses. Id. Plaintiff has also sued the County of Asotin and the City

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of Clarkston. Id.

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In the instant motions, Defendants move for summary judgment on all

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claims. ECF Nos. 61, 71. Defendants also jointly move to exclude portions of the

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report and testimony of Plaintiff’s expert witness, Mr. Winthrop Taylor. ECF

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Nos. 77, 79.

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and his Second Amended Complaint on December 22, 2014. ECF Nos. 49, 53.

Plaintiff subsequently filed his First Amended Complaint on November 19, 2014,

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FACTS 2

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In the early hours of January 8, 2012, Sergeant Danny Combs and Officer

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Paul Purcell responded to a “physical domestic” dispatch to Plaintiff Ryan

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Bonivert’s home in Clarkston, Washington. ECF Nos. 72 ¶ 9; 94 ¶ 18; 107-1; 107-

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3. The dispatcher had been “advised the male was inside the house being restrained

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by other males,” that “[i]t was physical at one point,” and that the “female [was]

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“outside in a car with a child,” which information the dispatcher relayed to the

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officers. ECF Nos. 107-1; 107-3. Sergeant Combs and Officer Purcell were the

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only two officers patrolling for the City of Clarkston (“City”) at the time. ECF No.

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62 ¶ 6. Although the two officers were in separate patrol vehicles, it was the City’s

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policy for both patrol officers to respond to a domestic violence call. ECF No. 72

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¶ 6. Officer Purcell arrived at Plaintiff’s residence around 2:08 a.m., with Sergeant

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Combs arriving shortly thereafter. ECF Nos. 72 ¶ 10; 94 ¶¶ 19-20; 107-1; 107-3.

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When the officers arrived, they encountered five people standing in front of the

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house. ECF No. 53 ¶ 3.6.

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The officers interviewed those present outside the residence. Sergeant

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combs spoke with two males, Mr. Gray and Mr. Miller. ECF Nos. 72 ¶ 12; 94

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¶ 28. According to Sergeant Combs, the males told him that Jessie Ausman and

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Plaintiff were in a relationship, had a child together, and had gotten into an

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The following are the undisputed material facts unless otherwise noted.

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argument that evening. ECF Nos. 72 ¶ 13; 93-5 at 81-82; 94 ¶ 53. Ms. Ausman

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had told Plaintiff that she was leaving with the baby, which plan Plaintiff opposed.

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ECF Nos. 72 ¶¶ 13-14; 93-5 at 82. Plaintiff allegedly rushed at Plaintiff and was

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tackled by one of the males before he could make contact with Ms. Ausman. ECF

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Nos. 72 ¶ 14; 93-5 at 82. Plaintiff remained inside the house.

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Officer Purcell interviewed a group of three females: Ms. Ausman, her

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sister, and her mother. ECF Nos. 72 ¶ 11; 93-5 at 81-82; 94 ¶ 29. According to

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Officer Purcell, the females relayed a similar narrative with the only difference

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being that when Plaintiff rushed at Ms. Ausman, he actually made contact and

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threw her to the ground. ECF Nos. 72 ¶ 15; 93-5 at 82; 94 ¶ 32. Ms. Ausman

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allegedly complained of back pain from the incident, either to Officer Purcell,

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Sergeant Combs, or both. ECF Nos. 72 ¶ 17; 93-5 at 82; 94 ¶ 38. In her

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deposition testimony, Ms. Ausman testified that although she probably did not

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recount the night with the depth of detail provided at her deposition, she asserts

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that she told the officers “exactly what had happened that night.” ECF Nos. 93-11

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at 29; 95 ¶ 34. Plaintiff does not dispute that these witnesses made statements

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regarding the encounter between Plaintiff and Ms. Ausman; rather, he questions

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ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 4

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what information was provided, in what detail it was provided, and the reliability

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of these statements. 3 See ECF No. 96.
The two officers then exchanged narratives and decided to speak with

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Plaintiff. ECF Nos. 93-5 at 82; 94 ¶ 57. The officers then approached the front

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door of Plaintiff’s residence, knocked loudly, identified themselves as police, and

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instructed Plaintiff to come to the door. ECF Nos. 72 ¶ 20; 93-5 at 82; 94 ¶¶ 68,

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70. When there was no response, Sergeant Combs proceeded to knock on other

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doors and windows of the residence, as well as look through the windows with the

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assistance of his flashlight. ECF Nos. 72 ¶ 21; 93-5 at 82; 94 ¶¶ 71, 75. In his

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deposition, Sergeant Combs testified that he was not certain that Plaintiff would

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have been able to hear his initial knocking on the front door. ECF No. 93-5 at 64.

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Plaintiff testified that he heard loud banging on his front door but neither knew

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who was at the door, nor could understand what he was saying. ECF No. 62 ¶ 55.

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When Sergeant Combs approached the side door on the north side of the house, he

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heard it lock as he was approaching. ECF Nos. 62 ¶ 56; 72 ¶ 22; 93-5 at 82; 94 ¶¶

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76, 78 (noting that Sergeant Combs informed Officer Purcell of this action).

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ECF No. 72 ¶ 19. Ms. Ausman recalls telling the officers, in response to

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questioning whether alcohol had been a factor in the incident, that they had all

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been drinking that night. ECF No. 93-11 at 5.

Sergeant Combs had the impression that all the witnesses had been drinking.

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Sergeant Combs testified that, upon hearing the door lock, he formed the opinion

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that Plaintiff did not want to speak with him. ECF No. 94 ¶ 76. At this point,

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Plaintiff understood that there were police officers outside and that they were

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asking him to come outside. ECF No. 62 ¶ 57. Plaintiff did not communicate with

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the officers at this time.

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The officers returned to question the witnesses. In response to questioning

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whether Plaintiff was a danger to himself, Ms. Ausman recalls saying she did not

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believe so and informed Sergeant Combs that there were no weapons in the home,

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which he interpreted to mean there were no firearms. ECF Nos. 72 ¶ 25; 93-11 at

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18. The females told Sergeant Combs that Plaintiff was volatile and upset, and Ms.

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Ausman stated that Plaintiff was not acting like himself. ECF Nos. 72 ¶ 25; 93 ¶¶

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91-92; 93-11 at 32. In response to questioning about how Plaintiff would respond

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to having his home broken into, Ms. Ausman warned Sergeant Combs that Plaintiff

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has a problem with authority and recounted Plaintiff’s behavior towards officers

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during a recent DUI arrest. ECF Nos. 93-11 at 22; 94 ¶ 93. Ms. Ausman was

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visibly upset when speaking to the officers. ECF Nos. 93-5 at 57; 93-11 at 33.

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At this point, Sergeant Combs decided it was necessary to make contact with

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Plaintiff and assess his condition. ECF No. 72 ¶ 27; see ECF No. 93-5 at 93-94 (in

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response to questioning regarding why he decided to enter, Sergeant Combs stated

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the following: “His state of mind, the volatility of the domestic, and is he going to

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harm himself, is he harmed at that time, and safety risk to him, us, his . . . girlfriend

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. . ., and the child. In my judgment, yes I needed to talk to him, and I needed to talk

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to him right away.”). Ms. Ausman, who had been living in Plaintiff’s home for

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approximately two years, gave Sergeant Combs permission to enter the house.

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ECF Nos. 62 ¶ 15; 72 ¶ 23; 73 at 39. Ms. Ausman does not recall whether she

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gave permission to break a door or window to gain entry; however, Sergeant

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Combs’ police report indicated such permission was given. ECF Nos. 83-5 at 82;

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93-11 at 21-22.

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The City officers requested assistance from the Asotin County Sheriff’s

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Office (“County”). 4 ECF Nos. 107-1; 107-3. Asotin County Deputies Gary

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Snyder and Joseph Snyder received the radio request from the City to assist in the

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response efforts at Plaintiff’s home. ECF Nos. 62 ¶ 10; 94 at 108. Deputies Gary

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and Joseph Snyder were the only two officers working patrol for the County at the

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time. ECF No. 62 ¶ 5. They arrived on the scene at around 2:20 a.m. ECF Nos. 62

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¶ 11; 94 ¶ 111. The deputies spoke with Sergeant Combs, the highest ranking City

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officer at the scene. ECF Nos. 62 ¶¶ 17-18; 94 ¶ 115. Deputy Gary Snyder recalls

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Sergeant Combs telling them that Plaintiff was locked inside the residence and

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will respond to requests for assistance from the City when the incident is within the

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City of Clarkston. ECF No. 62 ¶¶ 1-2.

Because the City of Clarkston is located within Asotin County, County officers

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would not come out after a physical encounter with his wife. ECF No. 62 ¶ 19.

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Deputy Joseph Snyder recalls Sergeant Combs requesting their assistance to make

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entry. Id. ¶ 20. 5

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The officers developed a plan of entry. ECF Nos. 62 ¶ 21; 94 ¶ 117. Officer

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Purcell remained at the front door of the residence (the east side) while Sergeant

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Combs and the County deputies went around to the north side of the residence.

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ECF Nos. 72 ¶ 32; 94 ¶ 117. Sergeant Combs again knocked on the side and back

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doors, identified himself as the police, and advised Plaintiff to open the door. ECF

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Nos. 72 ¶ 32; 94 ¶ 135. Sergeant Combs and Deputy G. Snyder shined their

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flashlights through the windows and saw Plaintiff retreat into his bedroom. ECF

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Nos. 62 ¶ 58; 94 ¶ 140. Sergeant Combs approached the back door of the

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residence (the west side), with Deputy J. Snyder directly behind him and Deputy

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G. Snyder standing farther back to maintain visibility of the front door. ECF No.

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enter the home or arrest Plaintiff. ECF Nos. 62 ¶ 26; 94 ¶¶ 113-114. They did not

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obtain information regarding who owned the residence, who lived at the residence,

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whether there were outstanding arrests, or what basis the City officers had for

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entering the home; rather, the County deputies deferred to the City officers,

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specifically Sergeant Combs, the highest ranking City officer on the scene. ECF

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Nos. 62 ¶ 4, 24-25, 28; 95 ¶ 1.

The County deputies were aware that the City officers did not have a warrant to

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62 ¶ 44. The officers were each equipped with a firearm, Taser, and handcuffs. Id.

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¶¶ 45-47. Deputy G. Snyder also had pepper spray and a baton, Deputy J. Snyder

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also had a baton, and Sergeant Combs also had a folding knife. Id.

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Sergeant Combs broke a window pane in the back door with his flashlight

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and reached through the opening to unlock the door. ECF Nos. 62 ¶ 51; 72 ¶ 11;

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94 ¶ 168. At this point, Plaintiff opened the door. ECF Nos. 62 ¶¶ 51, 63-64; 72 ¶

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35; 94 ¶¶ 170-171 (Deputy G. Snyder was less clear about who opened the door).

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The officers observed Plaintiff screaming, yelling profanities, standing with fists

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clenched and chest puffed, “acting aggressive and out of the control,” in an

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“extreme rage,” yelling “extremely loud,” and acting “very confrontational.” ECF

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Nos. 62 ¶ 65; 63-2 at 11; 63-3 at 9-10. Plaintiff admits that he opened the door in a

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“displeased fashion” and spoke in an “elevated” voice. ECF Nos. 62 ¶ 64; 63-4; 94

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¶ 173.

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Sergeant Combs states that he ordered Plaintiff to stay back, calm down, and

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get on the ground. ECF No. 62 ¶ 68. Deputy J. Snyder similarly ordered Plaintiff

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to get on the ground and show his hands. Id. ¶ 69. Plaintiff disputes he was given

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these commands and maintains that there were flashlights pointed at him, which

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caused him to lower his hands to shield his eyes, and he was unable to understand

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what the officers were saying. ECF Nos. 62 ¶¶ 72-73; 94 ¶ 175. The officers

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observed Plaintiff advancing towards Sergeant Combs. ECF Nos. 62 ¶¶ 66, 71;

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63-3 at 9-10; 64 ¶ 16. Plaintiff adamantly denies any advancement. 6 ECF Nos. 62

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¶ 66; 63-4 at 8; 72 ¶ 36. Although the video footage from Sergeant Combs’ taser is

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not entirely clear, it shows Plaintiff beyond the threshold of the door towards the

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officers, which shows there was an advancement. See ECF No. 104.
Allegedly in response to the perceived threat posed by Plaintiff, Sergeant

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Combs deployed his taser in dart mode at Plaintiff. ECF Nos. 62 ¶ 76; 63-4 at 8;

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72 ¶ 36; 94 ¶ 188, 193. Deputy G. Snyder also shot his taser at Plaintiff, which

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firing was ineffective. ECF No. 62 ¶ 78. The officers did not warn Plaintiff that

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they were going to deploy their tasers, ECF No. 94 ¶ 195; however the officers

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contend they were shouting commands at Plaintiff, commands which Plaintiff

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failed to obey, ECF No. 62 ¶ 70. Plaintiff swore at the officers, brushed off several

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of the probes, and attempted to close the door. ECF Nos. 62 ¶ 76; 72 ¶ 36; 94 ¶¶

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192-196. Plaintiff admits that only one dart from Sergeant Combs’ taser

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Plaintiff’s “refus[al] to listen to anything [the officers] had to say,” and continual

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yelling. ECF No. 93-5 at 83. The report makes no mention of Plaintiff advancing

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toward Sergeant Combs, or Sergeant Combs fearing an imminent attack. Id.

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Deputy G. Snyder’s report, however, notes that Plaintiff “was screaming and

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cursing and began to come towards Sgt. Combs as if he wanted to fight him.” ECF

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No. 64-2 at 2.

Sergeant Combs’ police report suggests that he deployed his Taser in response to

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application hit him, and he does not recall feeling any electrical current or charge

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as a result. ECF Nos. 62 ¶ 80; 63-4 at 9; 72 ¶ 85. Before Plaintiff could

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completely close the door on the officers, Sergeant Combs shoved the door open

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with enough force to throw Plaintiff to the other side of the mudroom. 7 ECF Nos.

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62 ¶ 82; 94 ¶ 196.
Once inside the house, the County deputies observed Plaintiff swinging his

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fists and attacking Sergeant Combs. ECF Nos. 62 ¶ 91; 72 ¶ 38, 93; 94 ¶¶ 198-

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200. Plaintiff disputes that he “rushed” at Sergeant Combs and swung “both his

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arms;” however, he does not rebut the assertion that the County deputies observed

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him attacking Sergeant Combs. See ECF Nos. 94 at 198; 95; 96. Deputy J. Snyder

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tackled Plaintiff, and while Plaintiff was on the ground, Sergeant Combs drive

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stunned Plaintiff multiple times in his upper right shoulder. ECF Nos. 62 ¶ 84; 72

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¶¶ 38-39; 94 ¶ 202. Eventually all three officers were holding Plaintiff to the

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ground. ECF No. 62 ¶¶ 95-97. Plaintiff continued to resist, even after Deputy J.

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Snyder handcuffed him. ECF Nos. 62 ¶ 98-99; 72 ¶ 39; 94 ¶ 212-213. Plaintiff

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concedes that he continued to struggle throughout the altercation and can be heard

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in the taser video—in response to an officer’s repeated commands to “give [the

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officer his] hands” and “hold still”—asserting “no,” “why,” and “why are you in

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the back porch or mudroom.

The parties and witnesses variously label this small room inside the back door as

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my house?”. ECF Nos. 63-4 at 9; 105. Sergeant Combs deployed his taser in drive

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stun mode once more after Plaintiff was handcuffed and continued to resist. ECF

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No. 72 ¶ 39. Sergeant Comb’s taser report shows his taser was activated in drive

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stun mode four times within approximately one minute. 8 ECF No. 94 ¶ 211; see

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ECF No. 93-1 at 3-8. Plaintiff was then placed under arrest for assault on an

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officer, resisting arrest, and domestic violence assault in the fourth degree. ECF

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No. 72 ¶ 43.
After his arrest, Plaintiff was transported to the Asotin County Jail. The

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Asotin County Jail has a total of 52 beds, with the bunks in each cell either made

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of concrete or steel. ECF No. 62 ¶¶ 114-115. The floors of each cell are similarly

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made of concrete. Id. ¶ 116. According to County Deputy Shawn Rudy, the jail

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often runs at capacity and there is not always adequate bunk space for each

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detainee. Id. ¶ 117. Upon booking, each detainee receives several bedding items,

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including a sheet, blanket, and mattress, and personal hygiene items. Id. ¶ 118.

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emotional injuries: (1) a lasting freckle where the dart hit him from Sergeant

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Combs first Taser application; (2) week-long soreness in his shoulder and a “burn

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of sorts” following the incident; (3) long-lasting emotional harm, including distrust

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of law enforcement, nightmares, flashbacks, elevated stress, and unhappiness.

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ECF Nos. 62 ¶¶ 110-111; 63-4 at 12-13.

As a result of these Taser applications Plaintiff claims the following physical and

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 12

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Male detainees do not receive toilet paper upon booking, the rationalization being

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many detainees do not remain long enough to need any toilet paper and excess

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toilet paper can be fashioned into a weapon or used to clog the plumbing in cells.

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Id. ¶ 120. That being said, a detainee can request toilet paper from staff. Id. ¶ 122.

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Toilet paper is kept on the medical cart which circulates the facility at least four

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times a day. Id. ¶ 123. Staff can also access toilet paper at the end of each tier of

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cells upon request. Id. ¶ 124. Finally, detainees can request toilet paper by

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submitting a “kite” or electronic message to staff through the kiosk available in the

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common area. Id. ¶ 126.

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Plaintiff arrived at the Asotin County Jail at approximately 2:36 a.m. on the

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morning of January 8, 2012. Id. ¶ 129. Upon booking, Plaintiff received a cup,

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toothbrush, toothpaste, a sheet, a blanket, and a mattress with a built-in pillow.

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ECF Nos. 62 ¶ 131; 63-5 at 1. Plaintiff was then assigned to a cell which had a

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bunk bed and two other detainees already assigned to it. ECF No. 62 ¶ 136.

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Plaintiff was instructed to sleep on the floor. ECF Nos. 62 ¶ 140; 94 ¶ 226.

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During the time that Plaintiff was in custody, all of the other general population

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cells had, at some point in time, three detainees per cell. ECF No. 62 ¶ 144; see

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ECF No. 63-2.

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The following morning, Plaintiff had the urge to defecate. ECF Nos. 62 ¶
146, 148; 94 ¶ 227. Plaintiff requested toilet paper from a jail employee, who

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responded to the effect that Plaintiff would “get some at some point.” ECF Nos.

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62 ¶ 150; 63-5 at 5. Plaintiff went to indoor recreation at approximately 7:39 a.m.,

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but did not request toilet paper at this time, nor did Plaintiff request toilet paper

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during lunch. ECF Nos. 62 ¶ 152; 63-5 at 5. Plaintiff asserts that one of his cell

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mates requested toilet paper on three separate occasions after lunch to no avail.

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ECF Nos. 62 ¶ 155; 63-3 at 5. Plaintiff received a roll of toilet paper at

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approximately 6:43 p.m. ECF No. 62 ¶ 158. Plaintiff had only one bowel moment

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while in custody and this was after he received toilet paper. 9 Id. ¶ 160. Plaintiff

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was released from custody at approximately 4:11 p.m. on January 9. Id. ¶ 172.

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DISCUSSION

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I.

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Motions for Summary Judgment
Summary judgment may be granted to a moving party who demonstrates

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“that there is no genuine dispute as to any material fact and the movant is entitled

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to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the

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initial burden of demonstrating the absence of any genuine issues of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the

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non-moving party to identify specific facts showing there is a genuine issue of

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clenching, gut cramps, and discomfort; however, he never reported any discomfort

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to jail staff. ECF No. 62 ¶¶ 161, 163.

As a result of this delayed receipt, Plaintiff complains that he experienced

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material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

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“The mere existence of a scintilla of evidence in support of the plaintiff’s position

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will be insufficient; there must be evidence on which the [trier-of-fact] could

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reasonably find for the plaintiff.” Id. at 252.

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For purposes of summary judgment, a fact is “material” if it might affect the

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outcome of the suit under the governing law. Id. at 248. A dispute concerning any

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such fact is “genuine” only where the evidence is such that the trier-of-fact could

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find in favor of the non-moving party. Id. “[A] party opposing a properly

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supported motion for summary judgment may not rest upon the mere allegations or

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denials of his pleading, but must set forth specific facts showing that there is a

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genuine issue for trial.” Id.(internal quotation marks omitted); see also First Nat’l

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Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968) (holding that a party

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is only entitled to proceed to trial if it presents sufficient, probative evidence

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supporting the claimed factual dispute, rather than resting on mere allegations).

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Moreover, “[c]onclusory, speculative testimony in affidavits and moving papers is

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insufficient to raise genuine issues of fact and defeat summary judgment.

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In ruling

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upon a summary judgment motion, a court must construe the facts, as well as all

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rational inferences therefrom, in the light most favorable to the non-moving party,

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Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which would be

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admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285 F.3d 764,

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773 (9th Cir. 2002).

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A. Section 1983 Claims

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Plaintiff alleges several causes of action under 42 U.S.C. § 1983:

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unreasonable warrantless search and entry, excessive force, unlawful warrantless

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arrest, pretrial detention that amounts to punishment, and conspiracy. A cause of

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action pursuant to section 1983 may be maintained “against any person acting

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under color of law who deprives another ‘of any rights, privileges, or immunities

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secured by the Constitution and laws’ of the United States.” S. Cal. Gas Co. v.

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City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. § 1983).

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The rights guaranteed by section 1983 are “liberally and beneficently construed.”

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Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. N.Y. City Dep’t of

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Soc. Servs., 436 U.S. 658, 684 (1978)).

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Here, there is no dispute that the officers acted under the color of law; thus,
the only question is whether they violated Plaintiff’s constitutional rights.

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B. Unreasonable Search

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The Fourth Amendment protects “[t]he right of the people to be secure in

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their persons, houses, papers, and effects, against unreasonable searches and

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seizures.” U.S. Const. amend. IV. In light of this fundamental right, “searches and

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ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 16

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seizures inside a home without a warrant are presumptively unreasonable.” Payton

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v. New York, 445 U.S. 573, 586 (1980).

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1. Warrantless Entry to the Curtilage of Plaintiff’s Property

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Plaintiff first claims that his constitutional rights were violated when the

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officers entered the curtilage of his home without a warrant. “The presumptive

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protection accorded people at home extends to outdoor areas traditionally known

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as ‘curtilage’—areas that, like the inside of a house, ‘harbor the intimate activity

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associated with the sanctity of a person’s home and the privacies of life.’” United

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States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010) (quoting United States v.

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Dunn, 480 U.S. 294, 300 (1987)); see also Florida v. Jardines, 133 S.Ct. 1409,

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1414 (2013) (“We therefore regard the area immediately surrounding and

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associated with the home—what our cases call the curtilage—as part of the home

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itself for Fourth Amendment purposes.” (internal quotation marks and citation

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omitted)); Oliver v. United States, 466 U.S. 170, 180 (1984) (“[A]n individual

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reasonably may expect than an area immediately adjacent to a home will remain

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private.”).

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Nonetheless, the Ninth Circuit has repeatedly held that “law enforcement

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officers may encroach upon the curtilage of a home for the purpose of asking

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questions of the occupants.” United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th

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Cir. 2012) (quoting United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 17

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2001)). The so-called “knock and talk” doctrine permits officers to approach a

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home to contact the inhabitants even though such entry may impose upon the

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protected curtilage of one’s home. Id. “The constitutionality of such entries into

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the curtilage hinges on whether the officer’s actions are consistent with an attempt

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to initiate consensual contact with the occupants of the home.” Id. at 1188.

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An officer may approach any entry accessible to the public:

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The law does not require an officer to determine which door most
closely approximates the Platonic form of “main entrance” and then,
after successfully completing this metaphysical inquiry, approach only
that door. An officer initiating a “knock and talk” visit may approach
any part of the building where uninvited visitors could be expected.

10

Id. (internal quotation marks and citation omitted). Indeed, the Ninth Circuit,

11

relying upon extra-circuit case law, noted that an officer proceeding to an

12

alternative entry after receiving no response at the initial door is not “so

13

incompatible with the scope of [the officer’s] original purpose” in attempting

14

contact. Hammett, 236 F.3d at 1060, overruled on other grounds by Perea-Rey,

15

680 F.3d 1179. After all, “[t]he scope of a license—express or implied—is limited

16

not only to a particular area but also to a specific purpose.” Jardines, 133 S.Ct. at

17

1416. That being said, “once an attempt to initiate a consensual encounter with the

18

occupants of a home fails, the officers should end the knock and talk and change

19

their strategy by retreating cautiously, seeking a search warrant, or conducting

8

20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 18

1

further surveillance.” Perea-Rey, 680 F.3d at 1188 (internal quotation marks and

2

citation omitted).

3

Here, there is no genuine dispute that the City officers did not violate

4

Plaintiff’s Fourth Amendment rights when they, after first speaking with the

5

witnesses, encroached upon the curtilage of Plaintiff’s home in an effort to contact

6

Plaintiff. Although Plaintiff asserts that Sergeant Combs went beyond the scope of

7

the “knock and talk” exception when he proceeded to knock on several doors and

8

windows—as well as look through the windows with the assistance of a

9

flashlight—after Plaintiff made no response to the initial attempt at the front door,

10

Sergeant Combs’ purpose remained the same throughout: he was attempting to

11

contact Plaintiff. Thus, the scope of the officers’ license to encroach upon the

12

curtilage of Plaintiff’s home was limited to the specific purpose of making contact

13

with Plaintiff. See Jardines, 133 S.Ct. at 1416; Hammett, 236 F.3d at 1060.

14

Accordingly, because the undisputed facts show that the officers did not exceed

15

this scope, this Court finds summary judgment in favor of Defendants is

16

appropriate on this claim.

17
18

2. Warrantless Entry to Plaintiff’s Home
Plaintiff next contends that the officers violated his constitutional rights

19

when they encroached upon his curtilage a second time and ultimately entered his

20

home without a warrant. The “physical entry of the home is the chief evil against

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 19

1

which the wording of the Fourth Amendment is directed.” Payton v. New York,

2

445 U.S. 573, 584 (1980) (quoting United States v. U.S. Dist. Court for E. Dist. of

3

Mich., 407 U.S. 297, 313 (1972)). Although the Fourth Amendment presumes as

4

unreasonable the warrantless entry of a person’s home, “[t]his presumptive Fourth

5

Amendment protection ‘is not irrebuttable.’” Struckman, 603 F.3d at 738 (quoting

6

Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009)).

7

The officers’ actions are entitled to a qualified immunity analysis. Qualified

8

immunity shields government actors from civil damages unless their conduct

9

violates “clearly established statutory or constitutional rights of which a reasonable

10

person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).

11

“Qualified immunity balances two important interests––the need to hold public

12

officials accountable when they exercise power irresponsibly and the need to shield

13

officials from harassment, distraction, and liability when they perform their duties

14

reasonably.” Id.

15

In evaluating a state actor’s assertion of qualified immunity, a court must

16

determine (1) whether the facts, viewed in the light most favorable to the plaintiff,

17

show that the defendant’s conduct violated a constitutional right; and (2) whether

18

the right was clearly established at the time of the alleged violation such that a

19

reasonable person in the defendant’s position would have understood that his

20

actions violated that right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 20

1

part by Pearson, 555 U.S. 223. To determine whether a right is “clearly

2

established,” courts consider the following:

3
4
5

[The contours of the right] must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held
unlawful; but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.

6
7

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal citations omitted). A court

8

may, within its discretion, decide which of the two prongs should be addressed first

9

in light of the particular circumstances of the case. Pearson, 555 U.S. at 236. If

10

the answer to either inquiry is “no,” then the defendant is entitled to qualified

11

immunity and may not be held personally liable for his or her conduct. Glenn v.

12

Wash. Cnty., 673 F.3d 864, 870 (9th Cir. 2011).

13

When determining whether there are any genuine issues of material fact at

14

the summary judgment stage in the context of qualified immunity, “determinations

15

that turn on questions of law, such as whether the officers had probable cause or

16

reasonable suspicion to support their actions, are appropriately decided by the

17

court.” Hopkins, 573 F.3d at 763 (citing Act Up!/Portland v. Bagley, 988 F.2d

18

868, 873 (9th Cir. 1993)). “However, a trial court should not grant summary

19

judgment when there is a genuine dispute as to the ‘facts and circumstances within

20

an officer’s knowledge’ or ‘what the officer and claimant did or failed to do.’” Id.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 21

1
2

a. Consent
First, this Court considers whether the officers had valid consent to enter

3

Plaintiff’s home without a warrant, thus justifying their warrantless entry to

4

Plaintiff’s home. “To the Fourth Amendment rule ordinarily prohibiting the

5

warrantless entry of a person’s house as unreasonable per se, one jealously and

6

carefully drawn exception recognizes the validity of a search with the voluntary

7

consent of an individual possessing authority.” Georgia v. Randolph, 547 U.S.

8

103, 109 (2006) (internal quotation marks and citations omitted). The consenting

9

person may merely be a fellow occupant “whom the police reasonably, but

10

erroneously, believe to possess shared authority as an occupant.” Id. In Randolph,

11

the Court announced its limited holding that, in the context of warrantless searches,

12

“a physically present co-occupant’s stated refusal to permit entry prevails,

13

rendering the warrantless search unreasonable and invalid as to him.” Id. at 106;

14

see also id. at 120 (“We therefore hold that a warrantless search of a shared

15

dwelling for evidence over the express refusal of consent by a physically present

16

resident cannot be justified as unreasonable as to him on the basis of consent given

17

to the police by another resident.”). This holding represents a “narrow exception”

18

to the rule that “police officers may search jointly occupied premises if one of the

19

occupants consents.” Fernandez v. California, 134 S.Ct. 1126, 1129 (2014).

20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 22

1

The issue here is what constitutes “express” or “stated” refusal for purposes

2

of invalidating the consent of a co-occupant. In United States v. Moore, the Ninth

3

Circuit declined to extend Randolph’s ruling to “implicit refusals.” 770 F.3d 809,

4

813 (9th Cir. 2014). In Moore, the defendant, after consent to enter was provided

5

to officers by a co-tenant, merely barricaded himself in his residence: “he did not

6

respond to the police officers’ ‘knock and talk’ at 2:00 p.m.; he did not answer [his

7

fiancée’s] phone calls; and he did not open the door for his [fiancée] when she,

8

accompanied by police officers, knocked on the door at approximately 8:45 p.m.”

9

Id. Focusing on this conduct, the Ninth Circuit held that the defendant never

10

expressly refused the search but merely “acquiesced in letting his fiancée deal with

11

the police.” Id.

12

In so holding, the Ninth Circuit distinguished a similar Eighth Circuit case

13

finding the opposite. In United States v. Williams, after obtaining consent from a

14

co-occupant, officers went to a hotel room and knocked. 521 F.3d 902, 905 (8th

15

Cir. 2008). When there was no response, the officers proceeded to open the door

16

with the hotel manager’s key. Id. After a brief exchange between the occupant

17

and the officers, the door was immediately slammed shut and dead-bolted by the

18

occupant. Id. The Eighth Circuit found this conduct sufficient to invalidate the co-

19

occupant’s consent. Id. In distinguishing the facts in Williams from the facts in

20

Moore, the Ninth Circuit reasoned that unlike the defendant in Williams, the

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 23

1

defendant in Moore neither communicated with the police officers nor engaged in

2

any affirmative conduct to physically prevent the police officers from entering;

3

rather, he simply remained in the house. Moore, 770 F.3d at 814. Such

4

“[a]cquiescence is insufficient to overcome the narrow exception in Randolph.” Id.

5

This Court finds a genuine issue remains as to whether Plaintiff’s actions

6

were sufficient to invalidate Ms. Ausman’s consent to enter. On the one hand,

7

Plaintiff did not, in words, communicate his “express” or “stated” objection to the

8

officers’ entry once he was aware that there were officers outside and that they had

9

the intent to enter. Like the defendant in Moore, Plaintiff remained barricaded

10

within the house, thus acquiescing to the consent the officers obtained from Ms.

11

Ausman—consent that was given after Plaintiff had locked all the doors to the

12

house and remained non-responsive inside. Furthermore, Plaintiff testified that he

13

did not even know that it was the police knocking on his doors until after he locked

14

the side door. ECF No. 63-4 at 5 (“Q: After a bit, I got up and I could see someone

15

coming to the side door, and I realized that [it] was unlocked. So I locked it. And

16

that’s when I realized it was the police.”). On the other hand, Plaintiff, like the

17

defendant in Williams, locked the side door when Sergeant Combs approached,

18

which arguably conveyed the message that he objected to his entry, along with any

19

others outside, whether or not he knew at that moment they were law enforcement

20

officials. Sergeant Combs heard the door lock as he approached and understood

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 24

1

this conduct to mean that Plaintiff did not wish to speak with him. Although

2

Plaintiff’s conduct could be construed as a mere implicit refusal to the officers’

3

entry, thus falling short of the “express” or “stated” refusal necessarily required by

4

Randolph’s holding, such affirmative conduct could be viewed as sufficient to

5

invalidate Ms. Ausman’s subsequent consent.

6

Even if Plaintiff’s conduct was sufficient to invalidate Ms. Ausman’s

7

consent, the officers are entitled to qualified immunity. In regards to the consent

8

exception, at the time of the incident in 2012, the Supreme Court’s opinion in

9

Georgia v. Randolph had established the general proposition that a warrantless

10

entry or search of a shared dwelling “over the express refusal of consent by a

11

physically present resident” violates the Fourth Amendment . 547 U.S. at 120.

12

However, the contours of the right—namely, what conduct would and would not

13

constitute “express” or “stated” refusal—were not clearly established in Randolph.

14

See Saucier, 533 U.S. at 201-02. As evidenced by the arguable disjointedness

15

between the Eighth Circuit’s opinion in Williams and the Ninth Circuit’s opinion in

16

Moore which both post-dated Randolph, the meaning of “express” or “stated” was

17

not precisely defined. Furthermore, the Court in Randolph, in an effort to grapple

18

with the holding’s effect on the unique circumstance of officers responding to

19

domestic violence and being refused admittance by the objecting aggressor,

20

highlighted that its holding is limited to “merely evidentiary searches” and would

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 25

1

not “compromise [law enforcement’s] capacity to protect a fearful occupant” in a

2

domestic violence case:

3
4
5
6
7
8
9

[T]his case has no bearing on the capacity of the police to protect
domestic victims. The dissent’s argument rests on the failure to
distinguish two different issues: when the police may enter without
committing a trespass, and when the police may enter to search for
evidence. No question has been raised, or reasonably could be, about
the authority of the police to enter a dwelling to protect a resident
from domestic violence; so long as they have good reason to believe
such a threat exists, it would be silly to suggest that the police would
commit a tort by entering, say, to give a complaining tenant the
opportunity to collect belongings and get out safely, or to determine
whether violence (or threat of violence) has just occurred or is about
to (or soon will) occur, however much a spouse or other co-tenant
objected.

10

Randolph, 547 U.S. at 118. Although the Court’s reasoning, in dicta, applies to the

11

situation where there is a risk of harm to the co-occupant who remains unprotected

12

inside the house, its explanation is not a model of clarity and thus did little to help

13

establish the “contours of the right.”

14

Here, this Court finds Plaintiff’s right was not so clearly established that a

15

reasonable officer, in the shoes of the County and City officers, would have known

16

his conduct was unlawful. Rather, when the officers entered Plaintiff’s house, the

17

Supreme Court’s opinion in Randolph established only the general proposition that

18

law enforcement could search Plaintiff’s home with the consent of a co-occupant

19

unless Plaintiff, physically present, made an “express” or “stated” objection.

20

However, the contours of this right—specifically, what constitutes “express” or

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 26

1

“stated” refusal and whether Randolph’s limited holding regarding searches applies

2

in the specific context of this case where officers were attempting to contact

3

Plaintiff—were not. Plaintiff did not come to the door and windows to

4

communicate with the officers; rather, he secreted himself within the house. The

5

only conduct on Plaintiff’s part that may come anywhere close to satisfying

6

Randolph’s standard was locking the side door as Sergeant Combs approached.

7

However, after Ms. Ausman gave consent to enter, Plaintiff simply remained in the

8

house, unwilling to communicate. An officer reasonably could have assumed this

9

conduct did not constitute an express or stated refusal and was insufficient to

10

invalidate Ms. Ausman’s consent. Looking at the undisputed facts, a reasonable

11

officer, under these circumstances, would not have known he lacked consent to

12

enter Plaintiff’s home without a warrant. Accordingly, the officers are entitled to

13

qualified immunity and summary judgment on this claim is appropriate.

14

b. Emergency Doctrine

15

Second, this Court considers whether the emergency doctrine also provided

16

justification to the officers’ warrantless entry. This exception is “narrow” and its

17

boundaries “rigorously guarded” in order “to prevent any expansion that would

18

unduly interfere with the sanctity of the home.” Hopkins , 573 F.3d at 763. “The

19

‘emergency’ exception stems from the police officers’ ‘community caretaking

20

function’ and allows them ‘to respond to emergency situations’ that threaten life or

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 27

1

limb.” Id. To determine whether the emergency exception applies, courts look to

2

the totality of the circumstances to determine whether officers had “an objectively

3

reasonable basis for concluding that there [was] an immediate need to protect

4

others or themselves from harm.” Id. at 764 (quoting United States v. Snipe, 515

5

F.3d 947, 951 (9th Cir. 2008)). Specific to the situation where officers are

6

responding to a domestic violence call, the Ninth Circuit has repeatedly

7

highlighted “the unique context of a domestic abuse call, in which violence may be

8

lurking and explode with little warning.” Id. at 766 (internal quotation marks and

9

citation omitted). For instance, in United States v. Martinez, the Ninth Circuit

10

upheld the officers’ warrantless entry to speak to the screaming and potentially

11

injured male resident where the officers were responding to a domestic violence

12

call and found a woman crying on the front lawn in front of the house. 406 F.3d

13

1160, 1162-64 (9th Cir. 2005).

14

Relevant to the qualified immunity analysis, the Supreme Court’s opinion in

15

Brigham City v. Stuart clearly established that at the time of entry, a police officer

16

must have “objectively reasonable” grounds to believe there is an emergency at

17

hand obviating the need for a warrant. 547 U.S. 398, 403 (2006). “An action is

18

‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s

19

state of mind, ‘as long as the circumstances, viewed objectively, justify the

20

action.’” Id. at 404 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)); see

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 28

1

also Hopkins, 573 F.3d at 763-64 (“‘[L]aw enforcement must have an objectively

2

reasonable basis for concluding that there is an immediate need to protect others or

3

themselves from serious harm.’” (quoting Snipe, 515 F.3d at 951)). Thus, for

4

purposes of determining qualified immunity, the court then asks “whether [at the

5

time of the events in question] a ‘reasonable officer’ would have known that he

6

lacked ‘reasonable grounds to believe that there was an emergency at hand.’”

7

Hopkins, 573 F.3d at 771 (quoting Saucier v. Katz, 533 U.S. at 202); Stanton v.

8

Sims, 134 S.Ct. 3, 7 (2013) (officer “may have been mistaken in believing his

9

actions were justified, but he was not plainly incompetent”) (internal quotation and

10

citation omitted).

11

Whether or not the officers violated Plaintiff’s Fourth Amendment rights by

12

entering his home without a warrant in excess of the emergency exception, looking

13

at the undisputed facts, the officers are entitled to qualified immunity. Here, this

14

Court finds, in light of the undisputed facts, no reasonable officer in the shoes of

15

the County and City officers would have known his conduct was unlawful. First,

16

when the City officers arrived at Plaintiff’s residence, they knew they were

17

responding to a report of physical domestic violence, a potentially volatile

18

environment. When they arrived, they saw several people standing outside,

19

including Ms. Ausman, who was visibly upset and emotional. Second, although

20

the precise information relayed to the officers is in dispute, Plaintiff cannot

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 29

1

genuinely dispute that both the female and male narratives relayed that there had

2

been an argument between Ms. Ausman and Plaintiff in which Ms. Ausman had

3

threatened to leave with their child and Plaintiff had either attempted to throw Ms.

4

Ausman to the ground before being tackled or actually threw Ms. Ausman to the

5

ground. Third, although Ms. Ausman told the officers that Plaintiff did not have a

6

firearm and that she did not believe he posed a danger to himself, she also told the

7

officers that Plaintiff was highly volatile and acting unlike himself. Fourth, the

8

officers knew, either because of what Ms. Ausman told them or based on their own

9

observations, that the group had been drinking and that alcohol was a factor.

10

Finally, the officers, in their experience, understood that obtaining a warrant at 2

11

a.m. would take some time and, during any delay, the only officers on patrol for

12

both the City and County would be at Plaintiff’s home.

13

Based on the totality of the uncontroverted circumstances, no reasonable

14

officer would have known he lacked enough objectively reasonable grounds to

15

enter Plaintiff’s home without a warrant. Accordingly, the officers are entitled to

16

qualified immunity and summary judgment on this claim is appropriate.

17
18

3. Municipal Liability
Plaintiff also directs his warrantless entry claim against the City of Clarkston

19

and Asotin County. The Supreme Court has held that local governments are

20

“persons” who may be subject to suits under § 1983. Monell v. Dep’t of Soc.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 30

1

Servs., 436 U.S. 658, 690 (1978). However, a municipality may only be held liable

2

for constitutional violations resulting from actions undertaken pursuant to an

3

“official municipal policy.” Id. at 691. As the Supreme Court articulated in

4

Monell, the purpose of the “official municipal policy” requirement is to prevent

5

municipalities from being held vicariously liable for unconstitutional acts of their

6

employees under the doctrine of respondeat superior. Id.; see also Bd. of Cnty.

7

Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Pembaur v. City of Cincinnati, 475

8

U.S. 469, 478-79 (1986). Thus, the “official municipal policy” requirement

9

“distinguish[es] acts of the municipality from acts of employees of the

10

municipality, and thereby make[s] clear that municipal liability is limited to action

11

for which the municipality is actually responsible.” Pembaur, 475 U.S. 469, 479-

12

80 (1986) (emphasis in original) (footnote omitted).

13

The Ninth Circuit recognizes four categories of “official municipal policy”

14

sufficient to establish municipal liability under Monell: (1) action pursuant to an

15

express policy or longstanding practice or custom; (2) action by a final

16

policymaker acting in his or her official policymaking capacity; (3) ratification of

17

an employee’s action by a final policymaker; and (4) failure to adequately train

18

employees with deliberate indifference to the consequences. Christie v. Iopa, 176

19

F.3d 1231, 1235-40 (9th Cir. 1999). A plaintiff must also establish the requisite

20

causal link between this “policy” and the alleged constitutional deprivation. See

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 31

1

Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008). The Supreme Court

2

articulated the causation requirement as follows:

3
4
5
6

[I]t is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality was
the “moving force” behind the injury alleged. That is, a plaintiff must
show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct casual link between the
municipal action and the deprivation of federal rights.

7

Bd. of Cnty. Comm’rs, 520 U.S. at 404. “Where a plaintiff claims that the

8

municipality has not directly inflicted an injury, but nonetheless has caused an

9

employee to do so, rigorous standards of culpability and causation must be applied

10

to ensure that the municipality is not held liable solely for the actions of its

11

employees.” Id. at 405.

12
13

a. City of Clarkston
Even assuming the City officers violated Plaintiff’s Fourth Amendment

14

rights when they entered his home without a warrant, this Court finds that Plaintiff

15

has failed to present sufficient evidence to establish municipal liability and

16

overcome summary judgment as to his warrantless entry claim against the City of

17

Clarkston. Plaintiff’s briefing asserts municipal liability under the theory of

18

ratification only.

19
20

The City cannot be held liable under the theory of ratification. Joel
Hastings, the Chief of Police for the City of Clarkston, reviewed the officer

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 32

1

reports, per routine, and spoke with Sergeant Combs following the incident. ECF

2

No. 93-10 at 7-9. In response to questioning at his deposition, Chief Hastings

3

testified that he approved of the officers’ actions. Id. at 10. Beyond this statement,

4

Plaintiff asserts no allegations, nor provides any evidence, that Ms. Hastings

5

ratified the City officers’ actions following the incident—the evidence presented

6

merely shows that Chief Hastings had limited knowledge of the incident based on

7

Sergeant Combs’ report and statements made to him by Sergeant Combs. See

8

Christie, 176 F.3d at 1235-40 (knowledge of an unconstitutional act is not enough

9

to constitute ratification, rather “a plaintiff must prove that the policymaker

10

approved of the subordinate’s act”). Similarly, the mere fact that Sergeant Combs

11

was not disciplined for his warrantless entry is insufficient. Haugen v. Brosseau,

12

339 F.3d 857, 875 (9th Cir. 2003) (holding that a “single failure to discipline” does

13

not provide a basis to impose the ratification doctrine), rev’d on other grounds by

14

Brosseau v. Haugen, 543 U.S. 194 (2004).

15

Even if Plaintiff were able to demonstrate the conduct of the City officers

16

was pursuant to a policy of the City, he has failed to demonstrate that the City was

17

the “moving force” or otherwise provide evidence of a causal link between the

18

City’s action and the deprivation of his rights. Rather, Plaintiff alleges that it was

19

the individual actions of the officers who made a warrantless entry to his home.

20

See Bd. of Cnty. Comm’rs, 520 U.S. at 406-07 (“That a plaintiff has suffered a

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 33

1

deprivation of federal rights at the hands of a municipal employee will not alone

2

permit an inference of municipal culpability and causation; the plaintiff will simply

3

have shown that the employee acted culpably.”).

4

Accordingly, even if the officers had violated Plaintiff’s constitutional rights

5

when they entered his home without a warrant, the Court finds no reasonable jury

6

could find the alleged constitutional violation was undertaken pursuant to “official

7

municipal policy.” Therefore, Plaintiff’s warrantless entry claim, as applied to the

8

City of Clarkston, is dismissed.

9
10

b. Asotin County
Even assuming the County officers violated Plaintiff’s Fourth Amendment

11

rights when they entered his home without a warrant, this Court finds that Plaintiff

12

has failed to present sufficient evidence to establish municipal liability and

13

overcome summary judgment as to his warrantless entry claim against Asotin

14

County. Plaintiff’s briefing asserts municipal liability under the theory of

15

ratification and failure to adequately train.

16

First, the County cannot be held liable under the theory of ratification. Grove

17

Kenneth Bancroft served as Sheriff for Asotin County from January 2007 to

18

August 2014. In response to questioning at his deposition, Sheriff Bancroft

19

testified that, based on his limited knowledge of what transpired on January 8,

20

2012, he approved of the deputies’ decisions. ECF No. 93-9 at 4-5. Although

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 34

1

Sheriff Bancroft read Deputy Snyder’s report, he did not conduct an investigation

2

or direct anyone else to conduct an investigation of the incident, had no personal

3

knowledge of what happened, and did not discuss the incident with the deputies.

4

Just as this approval was insufficient to hold the City of Clarkston liable, these

5

statements approving of the deputies’ conduct—statements made in response to

6

questioning after this litigation commenced—do not amount to ratification.

7

Second, the County is not liable under a theory of failure to train. “A

8

municipality’s culpability for a deprivation of rights is at its most tenuous where a

9

claim turns on a failure to train.” Connick v. Thompson, 131 S.Ct. 1350, 1359

10

(2011). A court may find a failure to train when “the need for more or different

11

training is so obvious and the inadequacy so likely to result in the violation of

12

constitutional rights, that the policymakers of the city can reasonably be said to

13

have been deliberately indifferent to the need.” City of Canton, Ohio v. Harris,

14

489 U.S. 378, 390 (1989) (emphasis added). This deliberate indifference standard

15

requires the plaintiff show the municipality was “on actual or constructive notice

16

that its omission would likely result in a constitutional violation.” Tsao v. Desert

17

Palace, Inc., 698 F.3d 1128, 1145 (9th Cir. 2012) (quoting Gibson v. Cnty. of

18

Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002)). A “‘pattern of similar

19

constitutional violations by untrained employees is ‘ordinarily necessary’ to

20

demonstrate deliberate indifference.’” Id. (quoting Connick, 131 S.Ct. at 1360).

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 35

1

Plaintiff has neither shown that Asotin County had actual notice of any flaw

2

in its policy, nor has Plaintiff shown that any training deficiency was “so obvious”

3

that it amounted to deliberate indifference. Moreover, Plaintiff has failed to

4

present a pattern of similar constitutional violations by untrained employees.

5

In support of this theory, Plaintiff asserts Asotin County’s training is deficient in

6

two areas: constitutional rights of citizens against police misconduct and the use of

7

force against citizens. However, beyond faulting the County for not offering any

8

courses that review relevant case law on these topics or provide instruction on the

9

County’s written policy regarding use of force, ECF No. 91 at 23-24, Plaintiff has

10
11

presented no evidence of deficient training.
Even if Plaintiff were able to demonstrate the conduct of the County

12

deputies was pursuant to policy of the County, he has failed to demonstrate that the

13

County was the “moving force” or otherwise provide evidence of a causal link

14

between the County’s action and the alleged deprivation of his rights. Rather,

15

Plaintiff alleges that it was the individual actions of the deputies who made a

16

warrantless entry to his home. See Bd. of Cnty. Comm’rs, 520 U.S. at 406-07

17

(“That a plaintiff has suffered a deprivation of federal rights at the hands of a

18

municipal employee will not alone permit an inference of municipal culpability

19

and causation; the plaintiff will simply have shown that the employee acted

20

culpably.”).

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 36

1

Accordingly, even if the officers had violated Plaintiff’s constitutional rights

2

when they entered his home without a warrant, the Court finds no reasonable jury

3

could find the alleged constitutional violation was undertaken pursuant to “official

4

municipal policy.” Therefore, Plaintiff’s warrantless entry claim, as applied to

5

Asotin County, is dismissed.

6

C. Conspiracy under 42 U.S.C. 1983 10

7

Plaintiff contends that the officers conspired to deprive him of his

8

constitutional rights when they developed a plan to make a warrantless entry to his

9

house. To prove conspiracy under section 1983, a plaintiff must show “an

10

agreement or meeting of minds” to violate his constitutional rights. Woodrum v.

11

Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989). “To be liable, each

12

participant in the conspiracy need not know the exact details of the plan, but each

13

participant must at least share the common objective of the conspiracy.” United

14

Steelworkers of Amer. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.

15

1989) (en banc).
This Court finds no reasonable jury could conclude that Defendants

16
17

conspired to deprive Plaintiff of his constitutional rights. The sole basis for

18

Plaintiff’s conspiracy claim is that Defendants, when they developed a plan to

19

enter his home without a warrant, conspired to violate his rights. ECF No. 92 at

20

10

Plaintiff abandoned his 42 U.S.C. § 1985 claim. ECF No. 92 at 18-19.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 37

1

18. This Court found that even if Defendants violated Plaintiff’s Fourth

2

Amendment rights when they entered his home without a warrant, they

3

undoubtedly had qualified immunity under both the consent and emergency

4

exceptions. Accordingly, Plaintiff’s conspiracy claim fails.

5

D. Excessive Force

6

Plaintiff also contends that the officers used excessive force when they

7

arrested him. Claims of excessive force are analyzed under the Fourth

8

Amendment, which protects persons from unreasonable seizures. Graham v.

9

Connor, 490 U.S. 386, 394-95 (1989). In evaluating a Fourth Amendment claim

10

of excessive force under 42 U.S.C. § 1983, courts must determine “whether the

11

officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances

12

confronting them.” Id. at 397. This inquiry “requires a careful balancing of the

13

nature and quality of the intrusion on the individual’s Fourth Amendment interests

14

against the countervailing governmental interests at stake.” Id. at 396 (quotation

15

and citation omitted).

16
17
18
19

Because the test of reasonableness under the Fourth Amendment is
not capable of precise definition or mechanical application . . . its
proper application requires careful attention to the facts and
circumstances of each particular case, including 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.

20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 38

1

Id. (quotation and citation omitted); see Mattos v. Agarano, 661 F.3d 433, 441

2

(9th Cir. 2011) (“[T]he most important Graham factor is whether the suspect posed

3

an immediate threat to the safety of the officers or others.”) (internal quotations

4

and citations omitted). This calculus must account for the fact that police officers

5

are often “forced to make split-second judgments—in circumstances that are tense,

6

uncertain, and rapidly evolving—about the amount of force that is necessary in a

7

particular situation.” Graham, 490 U.S. at 396-97. Consequently, the objective

8

reasonableness of an officer’s use of force must be judged from the perspective of

9

a reasonable officer on the scene, “rather than with the 20/20 vision of hindsight.”

10

Id. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). At bottom, the question

11

is whether the officer’s actions were objectively reasonable in light of the facts and

12

circumstances confronting him or her. Id. at 397.

13

Determining whether an officer’s force was excessive or reasonable

14

“requires a careful balancing of ‘the nature and quality of the intrusion on the

15

individual’s Fourth Amendment interests’ against the countervailing governmental

16

interests at stake.” Id. at 396. Courts in the Ninth Circuit follow a three-step

17

analysis when considering the reasonableness of an officer’s use of force:

18
19
20

First, we must assess the severity of the intrusion on the individual’s
Fourth Amendment rights by evaluating the type and amount of force
inflicted. Next, we must evaluate the government’s interests by
assessing (1) the severity of the crime; (2) whether the suspect posed
an immediate threat to the officers’ or public’s safety; and (3) whether
the suspect was resisting arrest or attempting to escape. Third, we

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 39

1
2
3

balance the gravity of the intrusion on the individual against the
government’s need for that intrusion. Ultimately, we must balance the
force that was used by the officers against the need for such force to
determine whether the force used was “greater than is reasonable
under the circumstances.

4

Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 537 (9th Cir. 2010) (internal

5

quotation marks and citations omitted). The reasonableness analysis is not limited

6

to these factors; rather, “we examine the totality of the circumstances and consider

7

‘whatever specific factors may be appropriate in a particular case, whether or not

8

listed in Graham.’” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)

9

(citation omitted).

10

1. Use of Force Upon Entry

11

Sergeant Combs and Deputy Snyder first used force against Plaintiff when

12

they deployed their tasers in dart mode when Plaintiff came to the back door. As

13

Plaintiff acknowledges, only one dart from Sergeant Combs’ taser hit him. As a

14

result of this taser application, Plaintiff admits he did not suffer any electrical

15

current or charge, the expected resulted of an effective taser application.

16

First, the Court finds the severity of this intrusion to be minimal. “Rather

17

than relying on broad characterizations, we must evaluate the nature of the specific

18

force employed in a specific factual situation.” Id. at 825. Although the intended

19

response when a taser hits someone in dart-mode is that the “electrical impulse

20

instantly overrides the victim’s central nervous system, paralyzing the muscles

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 40

1

throughout the body, rendering the target limp and helpless,” Mattos, 661 F.3d at

2

449 (quoting Bryan, 630 F.3d at 824), Plaintiff concedes that this was not the

3

intrusion here. Plaintiff did not feel any electric charge or current pulsing through

4

his body; rather, he felt one dart, which did not override his central nervous

5

system, and only resulted in a freckle to his chest. See Fontana v. Haskin, 262

6

F.3d 871, 880 (9th Cir. 2001) (“[N]ot every . . . bodily intrusion during an arrest is

7

actionable as a violation of the Fourth Amendment. Some bodily intrusions may

8

be provably accidental or de minimis and thus constitutionally reasonable.”).

9

Second, looking at the undisputed facts, the governmental interests at stake

10

justified the minimal level of force used. Upon entry, the officers had probable

11

cause to arrest for domestic violence assault in the fourth degree: a misdemeanor.

12

Although it is disputed whether Plaintiff advanced towards the officers, it is

13

undisputed that Plaintiff came to the door screaming, intoxicated, emotionally

14

upset, and at the very least, “displeased” with the officers. Further, the taser video

15

provides some evidence that Plaintiff did move beyond the threshold of the door

16

towards the officers. Whether or not Plaintiff advanced towards the officers, they

17

reasonably viewed him as a threat. Finally, looking at “specific factors relevant to

18

the totality of the circumstances,” the officers were responding to a domestic

19

violence call and thus the reasonableness of their actions must be taken in light of

20

the danger the overall situation posed. See Mattos, 661 F.3d at 450 (“When

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 41

1

officers respond to a domestic abuse call, they understand that violence may be

2

lurking and explode with little warning. Indeed, more officers are killed or injured

3

on domestic violence calls than on any other type of call.”). Although Sergeant

4

Combs and Deputy Snyder did not explicitly warn Plaintiff that they were going to

5

deploy their tasers, such warning was not plausible given the rapid succession of

6

events. Id. at 451 (“We have previously concluded that an officer’s failure to

7

warn, when it is plausible to do so, weighs in favor of finding a constitutional

8

violation.”). Moreover, the officers’ commands, although not fully understood by

9

Plaintiff, reasonably put Plaintiff on notice that the officers would take action if he

10

continued to disobey their commands. Thus, given the totality of the

11

circumstances, this Court finds that no reasonable jury could find the initial, and

12

overall ineffective, use of force excessive. Accordingly, summary judgment in

13

favor of Defendants on this portion of Plaintiff’s excessive force claim is

14

appropriate.

15
16

2. Use of Force Upon Arrest
The second excessive force analysis concerns the tackling of Plaintiff by

17

Deputy J. Snyder and Sergeant Combs’ repeated use of his taser in the drive-stun

18

mode. First, considering the type and amount of force inflicted, the use of a taser

19

in drive-stun mode is the direct application of an electric shock to a person. Id. at

20

443. Although Plaintiff’s deposition and briefing sheds little light on the level of

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 42

1

pain he experienced from the drive-stun applications, 11 the Court’s inquiry focuses

2

more on the reasonableness of the officers’ actions in light of the governmental

3

interests at stake. At the time Deputy J. Snyder tackled Plaintiff and Sergeant

4

Combs tased Plaintiff in drive stun mode, the following are the undisputed facts

5

surrounding the altercation: (1) Deputies J. and G. Snyder observed Plaintiff

6

attacking Sergeant Combs, which conduct Plaintiff does not fully dispute; (2) the

7

officers had probable cause to arrest Plaintiff for domestic violence and fourth

8

degree assault; (3) Plaintiff was screaming at the officers and yelling profanities;

9

and (4) Plaintiff continued to struggle and failed to obey the officers’ commands.

10

Although Sergeant Combs again failed to warn Plaintiff before deploying his taser,

11

the act of pinning Plaintiff down and placing him in restraints all happened in a

12

matter of seconds and did not plausibly lend itself to a warning given over

13

Plaintiff’s screams and the officers’ commands. Thus, given the totality of the

14

circumstances, this Court finds that no reasonable jury could find the use of force

15

within the home excessive. Accordingly, summary judgment in favor of

16

Defendants on this portion of Plaintiff’s excessive force claim is also appropriate.

17

//

18

11

19

by drive-stun applications, ECF No. 95 ¶ 30, his deposition does not support this

20

assertion, see ECF No. 63-4 at 10.

Although Plaintiff asserts that he will testify to the fact that he was incapacitated

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 43

1

E. Warrantless Arrest

2

“It is well established that ‘an arrest without probable cause violates the

3

Fourth Amendment and gives rise to a claim for damages under § 1983.’”

4

Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (quoting

5

Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988)). “An officer has

6

probable cause to make a warrantless arrest when the facts and circumstances

7

within his knowledge are sufficient for a reasonably prudent person to believe that

8

the suspect has committed a crime.” Id. The probable cause analysis looks to the

9

facts known to the officer at the time of the arrest and the criminal statute to which

10
11

those facts apply. Id.
At the time of Plaintiff’s arrest, the officers had the following information:

12

(1) the officers knew they were responding to a domestic violence report; (2) when

13

they arrived at the scene, the officers were told by witnesses that Plaintiff either

14

rushed at Ms. Ausman, intending to throw her to the ground, but tackled en route

15

by one of the male witnesses, or that he actually made contact with Ms. Ausman

16

and threw her to the ground; (3) the police report notes that Ms. Ausman

17

complained of back pain from the fall; and (4) Ms. Ausman was visibly upset.

18

Applying these facts to the law, a person is guilty of fourth degree assault

19

when he assaults another; when committed between household members, this

20

conduct is an act of domestic violence. RCW 9A.36.041(1), 10.99.020(5).

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 44

1

Although not statutorily defined, Washington courts recognize three definitions of

2

assault: “(1) an attempt, with unlawful force, to inflict bodily injury upon another;

3

(2) an unlawful touching with criminal intent; and (3) putting another in

4

apprehension of harm whether or not the actor intends to inflict or is incapable of

5

inflicting that harm.” State v. Stevens, 158 Wash.2d 304, 311 (2006) (citing Clark

6

v. Baines, 150 Wash.2d 905, 909 n.3 (2004)). When an officer has probable cause

7

to believe that a domestic assault has occurred, Washington law directs the “police

8

officer shall arrest and take into custody” the suspect. RCW 10.31.100(2)(c)

9

(emphasis added).

10

This Court finds no issue of genuine dispute that the officers had probable

11

cause to arrest Plaintiff for fourth degree assault and domestic violence and thus

12

were required to do so under Washington law. Under either version of events told

13

to the officers by witnesses on the scene, the officers had probable cause to believe

14

Plaintiff assaulted Ms. Ausman. Plaintiff does not dispute that these witnesses

15

made statements to the officers; rather, he disputes the level of detail and the

16

trustworthiness of this information. Although the officers stated that they wished

17

to talk with Plaintiff and obtain his version of events before making any arrest,

18

proceeding with this level of caution does not diminish the probable cause that was

19

present to execute an arrest. Accordingly, based on the undisputed facts at issue,

20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 45

1

this Court finds summary judgment on this claim as against all Defendants is

2

appropriate.

3

E. Substantive Due Process

4

Plaintiff’s final contention is that he was subject to punitive jail conditions

5

while in custody at the Asotin County Jail. Plaintiff’s claim rests on two

6

conditions of confinement: he was (1) forced to sleep on a mattress on the concrete

7

floor, and (2) deprived of toilet paper throughout his first day in jail.

8

“Pretrial detainees have a substantive due process right against restrictions

9

that amount to punishment.” Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir.

10

2002) (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). If restrictions or

11

jail conditions are “imposed for the purpose of punishment,” a pretrial detainee’s

12

substantive due process right has been violated. Id. (quoting Bell v. Wolfish, 441

13

U.S. 520, 535 (1979)).

14
15
16
17
18

[T]he determination of whether a particular condition or restriction
imposes punishment in the constitutional sense will generally turn on
whether an alternate purpose is reasonably assignable: if a particular
condition or restriction of pre-trial detention is reasonably related to a
legitimate governmental objective, it does not without more, amount
to “punishment.” Conversely, if a restriction or condition is not
reasonably related to a legitimate goal—if it is arbitrary or
purposeless—a court permissibly may infer that the purpose of the
governmental action is punishment that may not constitutionally be
inflicted upon detainees qua detainees.

19
20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 46

1

Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (citing Bell, 441

2

U.S. at 539). “Legitimate nonpunitive governmental objectives include

3

“maintaining security and order” and “operating the detention facility in a

4

manageable fashion.” Id. (citing Bell, 441 U.S. at 540 n. 23). “[T]o constitute

5

punishment, the harm or disability caused by the government’s action must either

6

significantly exceed, or be independent of, the inherent discomforts of

7

confinement.” Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004) (citing Bell,

8

441 U.S. at 537).

9

This Court finds no genuine dispute that the jail conditions to which Plaintiff

10

was subject were merely part of the “inherent discomforts of confinement” and do

11

not evidence punitive conduct. First, regarding the instruction that Plaintiff sleep

12

on his mattress on the cement floor of his cell, Plaintiff has failed to demonstrate

13

how this amounts to punishment. According to the jail event log, all of the other

14

general population cells had, at some point in time, three detainees per cell. ECF

15

No. 66-2. Further, Deputy Rudy represented in his declaration that the jail often

16

operates at capacity, resulting in fewer bunks than detainees. ECF No. 66 ¶ 5.

17

Short of turning away arrestees, Asotin County Jail has little choice but to place

18

three detainees in two-bunk rooms when the jail is operating beyond capacity.

19

Moreover, as a practical matter, some of the cell bunks are made of concrete

20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 47

1

attached to the wall. Thus, whether a detainee is on a mattress on a concrete bunk

2

or on the same mattress on the concrete floor is a distinction without a difference. 12
Second, the toilet paper restriction similarly does not amount to a violation

3
4

of Plaintiff’s substantive due process rights. Defendants have put forth several

5

legitimate reasons why male detainees are not given toilet paper upon booking,

6

including the rationale that some inmates do not remain in custody long enough to

7

need it and excess toilet paper can be fashioned into a weapon or used to clog the

8

cell’s plumbing. Plaintiff has not put forth any evidence, beyond mere allegations,

9

that this restriction was imposed to punish Plaintiff. Plaintiff requested toilet paper

10

once, despite numerous other opportunities to do so, and was able to wait to

11

defecate until he received a supply in the afternoon. Although Plaintiff asserts that

12

he suffered discomfort due to this delay, he never expressed this discomfort to jail

13

staff. Accordingly, because no reasonable jury could find that these conditions

14

amounted to anything beyond the inherent discomforts of confinement, Asotin

15

County Defendants are entitled to summary judgment on this claim.

16

//

17

//

18

//

19

12

20

slept on the opposite side of the cell as the toilet. ECF No. 63-5 at 3, 6.

In his deposition, Plaintiff testified that the floor of his cell was clean and that he

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 48

1
2
3
4
5
6

IT IS HEREBY ORDERED:
1. Asotin County Defendants’ Motion for Summary Judgment (ECF No.
61) is GRANTED.
2. Clarkston Defendants’ Motion & Memorandum of Authorities in Support
of Motion for Summary Judgment (ECF No. 71) is GRANTED.
3. Defendants’ Daubert Motion to Exclude Portions of Expert Witness

7

Winthrop Taylor’s Report and Testimony (ECF No. 77, 79) is DENIED as moot.

8

The District Court Executive is hereby directed to enter this Order, provide

9
10

copies to counsel, enter JUDGMENT for Defendants, and CLOSE the file.
DATED March 18, 2015.

11
12

THOMAS O. RICE
United States District Judge

13
14
15
16
17
18
19
20

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT ~ 49