Armado v. Blackwell et al

Filing 20

ORDER granting dfts' 17 Motion for Summary Judgment by Judge Ricardo S Martinez.(RS) Modified on 7/14/2015/cc Armado (RS).

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 MARIO ARMADO, Case No. C15-0038RSM 9 Plaintiff, 10 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 11 PORT OF SEATTLE POLICE DEPARTMENT, et al., 12 13 Defendants. 14 15 16 I. INTRODUCTION 17 This matter comes before the Court on Defendants Port of Seattle Police Department’s 18 19 and Officer Ray Blackwell’s Motion for Summary Judgment.1 Dkt. #17. In his Complaint, 20 Plaintiff alleged that Defendants violated his constitutional rights and negligently damaged his 21 vehicle due to the fact that he is Indian and homeless. See Dkt. #1, Ex. 1. Defendants seek 22 summary dismissal of all claims made against the remaining Defendants. Dkt. #17. Plaintiff 23 has failed to oppose the motion. Having reviewed the record before it, and having determined 24 25 that oral argument is not necessary, the Court now GRANTS Defendants’ motion. 26 27 1 28 The Court has already dismissed Sergeant Jack Myers from this matter on a previous motion for summary judgment. Dkt. #15. ORDER PAGE - 1 II. 1 SUMMARY JUDGMENT STANDARD 2 Summary judgment is appropriate where “the movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 4 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling on 5 summary judgment, a court does not weigh evidence to determine the truth of the matter, but 6 7 “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 8 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Myers, 969 F.2d 9 744, 747 (9th Cir. 1992)). Material facts are those which might affect the outcome of the suit 10 under governing law. Anderson, 477 U.S. at 248. 11 The Court must draw all reasonable inferences in favor of the non-moving party. See 12 13 O’Melveny & Myers, 969 F.2d at 747, rev’d on other grounds, 512 U.S. 79 (1994). However, 14 the nonmoving party must make a “sufficient showing on an essential element of her case with 15 respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. 16 Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a scintilla of evidence in 17 18 19 support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251. III. 20 21 BACKGROUND Plaintiff’s primary allegations are directed at Port of Seattle Police Officer Ray 22 Blackwell. See Dkt. #1, Ex. 1 at 3. Plaintiff alleges that Officer Blackwell violated his 23 24 constitutional rights by pulling him over on two occasions without probable cause, and by 25 forcing him to take a breathalyzer test under the threat of being sent to jail. Id. Plaintiff further 26 alleges that Defendants are responsible for more than $2000 in damages to his vehicle that 27 28 ORDER PAGE - 2 1 2 occurred when his car was towed to an impound lot after his arrest. Id. He further alleges that Officer Blackwell fabricated the police reports related to the incidents. Id. According to Defendants, the following incidents occurred involving Plaintiff and 3 4 Officer Blackwell. On April 17, 2014, just after 2:00 am, Officer Blackwell witnessed a purple 5 1993 Lexus sedan commit several traffic violations. Dkt. #12, Exs. C-E. Officer Blackwell 6 7 initiated a traffic stop and was joined by Officer Kleiner. Id. The windows on the Lexus were 8 heavily tinted, and Officer Blackwell could not identify who was at the wheel.2 Id. There was 9 also movement in the car. Id. Plaintiff exited the passenger side, and rapidly approached 10 Officer Blackwell, claiming he was not the driver. Id. There was a second male in the car. Id. 11 Officer Blackwell determined that both males were intoxicated and neither could drive. Id. 12 13 Under the circumstances, Officer Blackwell could not develop probable cause for an 14 arrest or traffic citation. Id. However, Plaintiff voluntarily took a portable breath test, and 15 registered a .15 blood alcohol level. Id. As a result, Officer Blackwell ordered the vehicle 16 impounded and towed from the scene. Id. 17 In September of 2014, Plaintiff made three complaints against Officer Blackwell arising 18 19 from the April traffic stop. Id. Sgt. Myers was tasked with investigating the complaint. Id. In 20 October, Sgt. Myers interviewed Plaintiff about his allegations. Dkt. #12, Exs. A-E. 21 The first allegation, a possible police courtesy violation, was that Officer Blackwell 22 used profanity when ordering Plaintiff to leave. Dkt. #12, Ex. A. During the interview, 23 24 Plaintiff recanted the allegation and admitted he could not remember the exact words used by 25 Officer Blackwell. Dkt. #12, Ex. C. Plaintiff accused Officer Blackwell of drawing his firearm 26 and pointing it at him. Id. He claimed he spotted a “red dot” on the ground during the 27 28 encounter. Id. 2 Plaintiff was identified as the registered owner of the vehicle. Dkt. #12, Exs. C-E. ORDER PAGE - 3 1 A subsequent investigation found that neither officer had laser sights on their firearms. 2 Dkt. #12, Ex. C. The investigation found, and the reports confirmed, that Officer Kleiner 3 unholstered his TASER. Id. Officer Kleiner said he drew the TASER due to Plaintiff’s size 4 and aggressive behavior. Id. The TASER has a laser sight. Id. It was never fired. Id. 5 The second allegation was that Officer Blackwell did not fill out appropriate paperwork 6 7 8 9 10 during the impound. Id. The investigation found that Officer Blackwell did complete the appropriate paperwork and followed appropriate procedures for the impound. Id. The third allegation was that Officer Blackwell lied in his report about not being able to identify the driver due to the window tinting. Id. After the investigation, this allegation was 11 not sustained. Id. 12 13 On July 13, 2014, just after 2:00 am, Officer Blackwell observed a 1995 white 14 Chevrolet truck committing traffic violations. Id. The driver was identified as Plaintiff. Id. 15 He was unable to produce proof of insurance or a vehicle registration. Id. He did have a 16 driver’s license. Id. He was arrested and processed for DUI. Id. 17 18 Afterwards, Plaintiff alleged that Officer Blackwell lied in his report about asking for 19 insurance and registration. Dkt. #12, Exs. B and C. The investigation report noted that Officer 20 Blackwell routinely asked for proof of insurance and registration, and that Officer Blackwell 21 did not cite Plaintiff for failing to produce the documents in any event. Dkt. #12, Ex. C. 22 Plaintiff also alleged that Officer Blackwell lied in his report when he claimed that he 23 24 gave Plaintiff his Miranda Warnings. Dkt. #12, Exs. B and C. Sgt. Myers noted that on the 25 DUI arrest packet, the Miranda Warnings is in writing and was apparently signed by Plaintiff. 26 Id. Sgt. Myers also noted that Plaintiff admitted he wanted the DUI case dismissed, and made 27 28 ORDER PAGE - 4 1 2 3 4 the complaint against Officer Blackwell to get leverage on that charge. Dkt. #12, Ex. C. He filed the complaint at the suggestion of a friend or attorney. Id. Plaintiff initially filed this matter in the King County District Court West Division. Defendants then removed the action to this Court based on Plaintiff’s allegations of his federal 5 constitutional rights. Dkt. #1. 6 IV. 7 8 9 DISCUSSION Plaintiff appears to allege three claims in his Complaint: 1) malicious harassment; 2) negligence; and 3) federal constitutional rights violations, as follows: 10 I am suing officer Blackwell of the port of Seattle Police Department on the grounds of MALICIOUS HARASSMENT and for violating my CONSTITUTIONAL RIGHTS by the law (42 U.S.C.A. 14141). There are two separate incidents involving the same officer. The first incident happened on 4/17/2014, the officer had no probable cause to pull vehicle over as he stated in the police report that he stopped vehicle for broken tail light when there was no broken tail light nor proof of a broken tail light. The office took vehicle from me at gun point and threatened to take me to jail if I didn’t take the breathalyzer test despite the fact that I was not the driver of the vehicle the officer didn’t make a report that he took vehicle at gun point and that he threatened me because he didn’t want no one to find out about it. The officer fabricated the police report and the breathalyzer test to his advantaged [sic] and impounded the vehicle at his discretion. The officer is responsible for damages to the vehicle because he was negligence [sic] in his part . . . . The second incident it happened on 7/13/2014, and again the officer had no probable cause to pull vehicle over as he stated in the police report that I was driving vehicle at an excessive speed and tail gating but I was not driving at an excessive speed or tailgating or any traffic violation. The officer fabricated the police report case no# 14-029970/cps022543, and charged me with a (D.U.I.) violation when I was not drunk or drinking the officer tempered [sic]/altered the breathalyzer device at the scene and at the police station to his advantage. I was deprived of my freedom when the office placed me under arrest on a false charge of (D.U.I.). The officer has been harassing me and persecuting me because of my race without probable cause. The officer has been observing my whereabouts and follows me around without probable cause. I feel persecuted and discriminated by the officers [sic] actions. The officer threatened me to sign my name against my will giving up my constitutional rights and my Miranda rights when I cannot read or write English because I 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 5 never went to school.3 I come from the Apache Ancestry and I have no education. . . . Officer Blackwell has abused his authority under the Port of Seattle police Department for “MALICIOUS HARASSMENT” and for “VIOLATING THE CONSTITUTIONAL LAWS”. 1 2 3 4 Dkt. #1, Exhibit 1. A. Claims Against Officer Blackwell 5 6 1. Malicious Harassment 7 Under Washington criminal law, malicious harassment is a felony hate crime. RCW 8 9A.36.080. Washington also provides a sister civil remedy, which allows a hate-crime victim 9 10 to bring a lawsuit against the criminal harasser. RCW 9A.36.083. In such a civil action, a 11 person may be liable to the victim of malicious harassment for actual damages, punitive 12 damages of up to ten thousand dollars, and reasonable attorneys’ fees and costs incurred in 13 bringing the action. Id. To succeed on a claim for malicious harassment, a plaintiff must show 14 that the defendant injured him, damaged his property, or threatened him because of his or her 15 16 race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or 17 sensory handicap. Gustafson v. City of W. Richland, 2011 U.S. Dist. LEXIS 128797, * 14 18 (E.D. Wash. Nov. 7, 2011). There is no evidence supporting such a claim in this case. 19 There is no evidence in the record that Officer Blackwell injured or threatened to injure 20 21 Plaintiff in any manner. Indeed, the evidence shows that Plaintiff voluntarily took breathalyzer 22 tests on two separate occasions, and that his blood alcohol content was over the legal limit on 23 both occasions. While Plaintiff alleges he only took the tests because he was threatened at 24 gunpoint, his allegations have been discredited. Dkt. #12, Exs. A-E. Plaintiff has provided no 25 26 27 28 3 Interestingly, Plaintiff makes this assertion despite the fact that he has submitted pro se a coherent Complaint with a type-written account of events in English and a prior hand-written motion for extension of time in English, notes that he has read the owner’s manual for his Lexus vehicle, and asserts that he was able to file two citizen complaints with the Port of Seattle Police Department. See Dkts. #1, Ex. A and #7. ORDER PAGE - 6 1 evidence to the contrary in response to the instant motion. Likewise, there is no evidence in the 2 record that Officer Blackwell caused any damage to Plaintiff’s property, despite Plaintiff’s 3 allegation that his vehicle sustained damage to the “R&R MUFFLER, THE TAIL PIPE, AND 4 THE BODY.” Dkt. #1, Ex. A. Plaintiff states that the damage was caused because a flatbed 5 tow truck was not used when his car was impounded. Id. 6 7 Even assuming, arguendo, that Plaintiff had been threatened with harm or that his 8 property had been damaged by Officer Blackwell, there is no evidence in the record to sustain a 9 finding that such actions were “because of” his race (Apache Indian). Plaintiff, in conclusory 10 manner, alleges that Officer Blackwell targeted him because of his race, but has provided no 11 evidence to support that accusation. Rather, the evidence in the current record shows that 12 13 Plaintiff’s vehicle was impounded and that he was arrested because his blood alcohol content 14 exceeded the legal limit. Dkt. #12, Exs A-E. 15 As noted above, the nonmoving party must make a “sufficient showing on an essential 16 element of her case with respect to which she has the burden of proof” to survive summary 17 18 judgment. Celotex, 477 U.S. at 323. Further, “[t]he mere existence of a scintilla of evidence in 19 support of the plaintiff's position will be insufficient; there must be evidence on which the jury 20 could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251. Plaintiff’s bald speculation 21 does not sustain his burden in this case. Accordingly, his malicious harassment claim will be 22 dismissed. 23 24 2. Negligence 25 Plaintiff next alleges that Defendant was negligent in allowing his car to be towed 26 without the use of a Flatbed tow truck, and is therefore liable for alleged resulting damage. 27 There is no evidence in the record to support this claim. There is no document demonstrating 28 ORDER PAGE - 7 1 any actual damage to the vehicle that was not previously in existence, and there is no evidence 2 that Officer Blackwell proximately caused the alleged damage. Plaintiff’s bare allegations are 3 not enough to support the claim. Accordingly, Plaintiff’s claim will be dismissed. 4 3. Federal Constitutional Rights 5 Finally, Plaintiff alleges that his federal constitutional rights were violated because there 6 7 8 9 10 was no probable cause to pull over his vehicle on either occasion, and that he was arrested without probable cause on the second occasion. a. Traffic Stops Under the Fourth Amendment, an officer is permitted to make brief investigatory stops, 11 including traffic stops, when that officer has a reasonable suspicion that the driver is engaged in 12 13 criminal activity. U.S. v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000); Navarette v. 14 California, 134 S. Ct. 1683, 1687 (2014). In the Ninth Circuit, probable cause is not necessary 15 to conduct an investigatory traffic stop. Lopez-Soto, 205 F.3d at 1104-05 (9th Cir. 2000). An 16 officer has reasonable suspicion when “specific, articulable facts which, together with objective 17 18 and reasonable inferences, form the basis for suspecting that the particular person detained is 19 engaged in criminal activity.” Id. at 1105 (internal citations omitted). “An officer is entitled to 20 rely on his training and experience in drawing inferences from the facts he observes, but those 21 inferences must also be grounded in objective facts and be capable of rational explanation.” Id. 22 (internal citations omitted). 23 24 In this case, Officer Blackwell stopped the vehicle in which Plaintiff was riding on the 25 first occasion because he observed the vehicle straddling two lanes of traffic and also observed 26 the vehicle’s broken taillight. Dkt. #12, Exs. C-E. Plaintiff has not provided any evidence to 27 the contrary. Likewise, Officer Blackwell stopped Plaintiff’s vehicle on the second occasion 28 ORDER PAGE - 8 1 because he observed Plaintiff tailgating, driving at an excessive speed and crossing the yellow 2 lane barrier. Dkt. #12, Exs. B, C and E. Plaintiff has not provided any evidence to the 3 contrary. As a result, the Court finds that Officer Blackwell had reasonable suspicion to 4 investigate and stop the vehicles on both occasions. Accordingly, the Court dismisses any 5 claim that Plaintiff’s constitutional rights were violated when Officer Blackwell stopped his 6 7 vehicle on either occasion. 8 b. Warrantless Arrests 9 The Court next turns to Plaintiff’s arrest. Under the Fourth Amendment, a warrantless 10 arrest requires probable cause. Michigan v. Summers, 452 U.S. 692, 700 (1981). Probable 11 cause to arrest exists when officers have knowledge or reasonably trustworthy information 12 13 sufficient to lead a person of reasonable caution to believe that an offense has been or is being 14 committed by the person being arrested. U.S. v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). 15 Under RCW 46.61.502, “a person is guilty of driving while under the influence of 16 intoxicating liquor . . . if the person drives a vehicle within this state, . . . and the person has, 17 18 within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis 19 of the person’s breath.” At the time Plaintiff was arrested, Officer Blackwell was aware that 20 Plaintiff had tailgated and had driven at a high rate of speed; Plaintiff’s vehicle movements were 21 jerky; Plaintiff made a sudden U-turn without signaling; Plaintiff drove over a painted concrete 22 divider; Plaintiff drove over a sidewalk; Plaintiff responded slowly to emergency lights; Plaintiff 23 turned the wrong way onto one-way alley; Plaintiff slurred his speech; Officer Blackwell smelled 24 25 alcohol coming from the truck; Plaintiff’s eyes were watery and his face was flushed; Plaintiff 26 failed the horizontal nystagmus test; and Plaintiff blew a .139 on a preliminary breath test. Dkts. 27 #17 at 10 and #12, Exs. C-E. This is enough to establish probable cause, and Plaintiff has provided 28 ORDER PAGE - 9 1 2 3 4 no evidence to the contrary. Accordingly, any claim of a constitutional violation for arrest without probable cause is dismissed. B. Claims Against Port of Seattle PD Plaintiff has also named the Port of Seattle Police Department as a Defendant in this 5 action; however, he fails to allege any specific claim against it. See Dkt. #1, Ex. A. To the 6 7 8 9 10 extent Plaintiff alleges that the Department maliciously harassed him or negligently caused damage to his vehicle, those claims are dismissed for the reasons set forth above. Further, any constitutional claim against the Department is also dismissed. A municipality cannot be held liable under 42 U.S.C. § 1983 on a respondeat superior theory. 11 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); Hamilton v. Endell, 981 F.2d 1062, 12 13 1067 (9th Cir. 1992). Accordingly, to succeed on a section 1983 claim against the Port of 14 Seattle Police Department in this case, Plaintiff must prove facts establishing municipal 15 liability in one of the following ways: 16 17 18 19 20 1. “a [government] employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local government entity”; 2. “the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy”; or 21 22 3. “an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” 23 Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). In addition, Plaintiff must prove 24 25 that one of those listed circumstances was the cause in fact and the proximate cause of the 26 constitutional deprivation. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 27 28 ORDER PAGE - 10 1 In this case, the Court has already determined that Plaintiff’s constitutional rights were 2 not violated, either by Officer Blackwell or Sergeant Myers. 3 Accordingly, any Monell claim fails as a matter of law. 4 V. See, supra, and Dkt. #15. CONCLUSION 5 Having reviewed Defendants’ motion for summary judgment and the reply in support 6 7 8 9 thereof, along with all supporting declarations and exhibits and the remainder of the record, the Court hereby finds and ORDERS: 1. Defendants’ Motion for Summary Judgment (Dkt. #17) is GRANTED. All of 10 Plaintiff’s remaining claims against Officer Blackwell and the Port of Seattle Police 11 Department are DISMISSED with prejudice. 12 13 2. This matter is now CLOSED. 14 DATED this 13 day of July 2015. 15 A 16 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 11

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