Ponce Alvarez v. King County et al

Filing 38

ORDER granting in part and denying in part defendants' 27 Motion for Summary Judgment; defendant King County is dismissed as a party to this action. If Alvarez wishes to move for leave to amend his complaint he must do so within 7 days signed by Judge Richard A Jones.(RS)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MOISES E. PONCE ALVAREZ,
Plaintiff,

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v.

Defendants.

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I.

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INTRODUCTION

This matter comes before the Court on Defendants King County, Cassandra
Bertaina, Adam R. Buchan, Jonathan Hennessy, James Price, and John Does 1-2’s
Motion for Summary Judgment. Dkt. # 27. For the reasons that follow, the Court
GRANTS in part and DENIES in part Defendants’ motion.

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ORDER

KING COUNTY, et al.,

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Case No. C16-721-RAJ

II. BACKGROUND
In this 42 U.S.C. § 1983 civil rights action, Plaintiff Moises E. Ponce Alvarez
alleges that Defendants subjected him to excessive force in violation of the Fourth
Amendment. Around midnight on May 21, 2014, Alvarez was driving his car in the

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White Center neighborhood of unincorporated King County when he experienced engine

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trouble and pulled into an alley between 18th and 19th Avenue Southwest. At the time,

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King County Sheriff’s Deputy Adam R. Buchan was in the alley responding to an

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unrelated 911 call. What happened next is disputed.

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According to Alvarez, he parked to get out and check the engine. Just after
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unlocking the car door, a large man, who Alvarez later learned was Officer Buchan,
yanked him out of the car, hit him, threw him to the ground, and told him to “shut up.”
Face down and unable to see his assailant, he heard more people arrive who yelled at him
and told him to “shut up.” He recognized one of the voices as belonging to a woman.
These people punched and kicked him and he lost consciousness multiple times. He did
not know they were officers until he felt himself be handcuffed. The officers transported
him to jail. On the way, Alvarez continued to lapse in and out of consciousness. He later
sought medical treatment. His doctor diagnosed him with post-traumatic headaches,
which she attributes to the incident in the alley. Dkt. # 34-1 (Mendez Decl. Ex. 5).
According to Buchan, he was in the alley using his flashlight to search for a
suspect whom a nearby 911 caller had reported as banging on her front door. He saw a
car enter the alley in his direction. The car accelerated toward him and he had to jump
out of the way. The car skidded to a stop. With his firearm drawn, he opened the
driver’s side door and ordered the driver, whom he later learned was Alvarez, to turn off
the engine. Alvarez complied, but did not exit the vehicle. Instead, he reached toward
the passenger floorboard. Buchan grabbed him and pulled him from the vehicle. Alvarez
resisted. As Buchan worked to restrain Alvarez, King County Sheriff’s Deputy
Cassandra Bertaina arrived to provide backup. Because Alvarez was still violently
resisting, Buchan instructed Bertaina not to handcuff Alvarez until they received further
assistance. King County Sheriff’s Deputies Jonathan Hennessy and James Price arrived.
Together, the four officers restrained Alvarez and transported him to jail.
King County charged Alvarez with reckless driving and obstructing law
enforcement. A jury found him not guilty. Dkt. # 34-1 at 134-36 (Mendez Decl. Ex. 21).
On May 20, 2016, Alvarez filed this action alleging (1) claims under 42 U.S.C.
§ 1983 against the officers for excessive force in violation of the Fourth and Fourteenth
Amendments; (2) Monell claims under 42 U.S.C. § 1983 against King County for
maintaining unconstitutional policies and practices, failure to train, and failure to
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supervise; (3) a Washington state claim for assault and battery; and (4) a Washington
state claim for negligent use of force. Now, Defendants move for summary judgment on
all claims except for the excessive force claim against Officer Buchan.
III. DISCUSSION

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A.

Monell Claims, Assault and Battery Claim, and Negligence Claim

In response to Defendants’ motion, Alvarez withdraws his claims for Monell
liability, assault and battery, and negligence. Dkt. # 33 at 21 (“Plaintiff withdraws his

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claims for Negligent Use of Force, Assault and Battery, and his Monell claim.”).
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Accordingly, the Court GRANTS in part Defendants’ motion and DISMISSES these
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claims. Having dismissed Alvarez’s Monell claims, the Court also DISMISSES
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Defendant King County as a party, as no claims remaining pending against it.
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B.
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Section 1983 Claims for Excessive Force Against Officers Bertaina,
Hennessy, and Price

Alvarez opposes Defendants’ motion as to his § 1983 claims for excessive force
against Officers Bertaina, Hennessy, and Price.

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i.

Officer Bertaina

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Although Defendants call their motion a Motion for Summary Judgment, they

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contend that the Court should dismiss Alvarez’s excessive force claim against Officer

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Bertaina because he does not allege facts in his complaint that state a claim against her.

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Alvarez contends that Defendants have been aware all along as to the scope of his

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allegations such that the deficit of facts in his complaint is immaterial.

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The Court will construe Defendants’ motion as a motion on the pleadings under

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Rule 12(c) with respect to its argument concerning Officer Bertaina. “The moving

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party’s label for its motion is not controlling. Rather, the court will construe it, however

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styled, to be the type proper for relief requested.” In re 1982 Sanger, 738 F.2d 1043,

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1046 (9th Cir. 1984). Because Defendants’ argument rests wholly on the contents of

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Alvarez’s complaint, the Court must conduct its analysis accordingly. See Chocolates by

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Bernard, LLC v. Chocolaterie Bernard Callebaut Ltd., No. 2:10-CV-1298 JWS, 2013

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ORDER – 3

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WL 3489805, at *1 (D. Ariz. July 11, 2013) (construing motion for summary judgment as
a motion for judgment on the pleadings where movant’s basis for relief relied exclusively
on allegations in complaint). To the extent that Alvarez claims Defendants’ argument is
an improper motion under Rule 12(b)(6), the Court disagrees. Although a motion under
Rule 12(b)(6) must be filed before filing a responsive pleading, courts construe
subsequent motions seeking dismissal for failure to state a claim as motions for judgment
on the pleadings. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980).
The same standard for dismissal applies to Rule 12(c) and Rule 12(b)(6). Cafasso,
U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011).
That standard derives from Rule 8, which requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid
dismissal for failure to state a claim, the plaintiff must point to factual allegations in the
complaint that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 568 (2007). The plaintiff avoids dismissal if there is “any set of
facts consistent with the allegations in the complaint” that would entitle the plaintiff to
relief. Id. at 563. The rule requires the court to assume the truth of the complaint’s
factual allegations and credit all reasonable inferences arising from those allegations.
Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
Alvarez has failed to state a claim against Officer Bertaina. A claim for excessive
force requires proof that the defendant used a degree of force that is objectively
unreasonable under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388
(1989). Alvarez, however, does not allege in his complaint that Officer Bertaina used
any force against him. He alleges that he “was punched, kicked, beaten, and slammed to
the gravel pavement by multiple individuals who he understands to be above named
defendants Buchan, Hennessy, and Price.” Dkt. # 1 ¶ 5.2 (Complaint). Beyond being
named as a defendant, Officer Bertaina is not among the officers whom Alvarez alleges
used force against him. By not alleging in his complaint that Officer Bertaina used force,
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Alvarez has failed to state a claim against her for excessive force. The Court GRANTS
in part Defendants’ motion and DISMISSES Alvarez’s claim against Officer Bertaina.
Alvarez indicates that he intends to move for leave to amend his complaint as it
pertains to Officer Bertaina. Dkt. # 33 at 21. The Court notes that this would require a
showing of good cause under Rule 16, as the deadline for amending pleadings expired on
February 1, 2017. In seeking to establish good cause, Alvarez should take into
consideration that the trial date in this matter, July 31, 2017, is fast approaching. Any
such motion must be filed within seven (7) days from the date of this Order.
ii.

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Officers Hennessy and Price

Defendants move for summary judgment on Alvarez’s claims for excessive force
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against Officers Hennessy and Price. They contend there is no evidence that Hennessy
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and Price used force against Alvarez and, even if there were, that Hennessy and Price
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would be entitled to qualified immunity. Alvarez opposes the motion on both grounds.
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Summary judgment is appropriate if there is no genuine dispute as to any material
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fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
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56(a). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On
an issue where the nonmoving party will bear the burden of proof at trial, the moving
party can prevail by pointing out to the district court that there is an absence of evidence
to support the non-moving party’s case. Id. at 325. If the moving party meets the initial
burden, the opposing party must set forth specific facts showing that there is a genuine
issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). The court must view the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in that party’s favor. Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).
As noted, a claim for excessive force requires a showing that the defendant used
an objectively unreasonable degree of force. Graham, 490 U.S. at 388. Assessing

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ORDER – 5

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whether a law enforcement officer’s use of force was reasonable “requires a careful
balancing of ‘the nature and quality of the intrusion on the individual’s Fourth
Amendment interests’’ against the countervailing governmental interests at stake.” Id. at
396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation marks
omitted)). “Relevant factors to this inquiry include, but are not limited to, ‘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.’” Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (quoting
Graham, 490 U.S. at 396). “[T]he reasonableness of force used is ordinarily a question
of fact for the jury.” Liston v. Cty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997).
Defendants contend that summary judgment is appropriate as to Officers Hennessy
and Price because Alvarez’s testimony shows that only two officers used force against
him. At his deposition, Alvarez testified that “four or three people” were assaulting him,
but when asked how he knew that he answered that it was because he could see “[f]our
feet, two pairs of feet.” Dkt. # 34-1 at 18 (Mendez Decl. Ex. 2). He testified that, when
he was able to look up for an instant, he saw the “the face of the woman who hit me and
the face of the person who pulled me out of the car.” Id. at 20. When asked whether he
saw anybody else hit him “besides the man that pulled [him] out of the car and the
woman who came after,” he answered, “No.” Dkt. # 28-1 at 2 (Anderson Decl. Ex. A).
He testified that he thought additional people were attacking him, but conceded that he
did not know. Id. He explained he was uncertain how many officers were present
because he was pinned face-down on the ground and that they “were always trying to
make it so that I could not identify them.” Id.
While Alvarez’s testimony suggests the presence of two assailants, the accounts of
Officers Hennessy and Price muddy the waters. At the probable cause hearing, Price
testified that, when he arrived, Buchan was the only officer present and that Hennessy
and Bertaina did not arrive until shortly thereafter. Dkt. # 34-1 at 113-15 (Mendez Decl.
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Ex. #16). But at his deposition and again in a declaration, Price testified that both
Buchan and Bertaina were at the scene when he arrived. Id. at 108-10 (Mendez Decl. Ex.
#16); Dkt. # 31 (Price Decl.). For his part, Officer Hennessy testified that when he
arrived, Buchan and Bertaina were present, suggesting that Officer Price was the last to
arrive. Dkt. # 34-1 at 129-30 (Ex. #19).
The sequence in which the officers arrived at the scene and what transpired during

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the course of Alvarez’s arrest is a genuine dispute of material fact that precludes
summary judgment. Defendants separately contend that, even if Officers Hennessy and
Price used excessive force, they are entitled to qualified immunity because the Supreme
Court has held that an officer who arrives to an ongoing police action may presume that
proper procedures have been followed thus far. Dkt. # 27 (citing White v. Pauly, 137 S.
Ct. 548, (2017)). Whether they are entitled to this defense, however, turns on the same
issues of material fact that preclude summary judgment as to their use of force—i.e.,
when they arrived and what occurred thereafter. Resolving these issues will require
credibility determinations, which are for the jury, not the Court. McLaughlin v. Liu, 849
F.2d 1205, 1207 (9th Cir. 1988). Accordingly, viewing the evidence in the light most
favorable to Alvarez and drawing all reasonable inferences in his favor, the Court
DENIES Defendants’ motion as it pertains to Officers Hennessy and Price.
IV. CONCLUSION

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For the reasons stated above, the Court GRANTS in part and DENIES in part

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Defendants’ Motion for Summary Judgment. Dkt. # 27. Because no claims remain
pending against Defendant King County, the Court DISMISSES King County as a party
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to this action. If Alvarez wishes to move for leave to amend his complaint as to his claim
against Officer Bertaina, he must do so within seven (7) days from the date of this Order.

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DATED this 23rd day of June, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 8