Ponce Alvarez v. King County et al

Filing 93

ORDER denying Plaintiff's 88 Motion for New Trial signed by Judge Richard A Jones. (TH)

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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ORDER

v.
KING COUNTY, et al.,
Defendants.

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Case No. C16-721-RAJ

I. INTRODUCTION

This matter comes before the Court on Plaintiff’s Motion for New Trial.

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Dkt. # 88. Defendants oppose the Motion. Dkt. # 89. For the reasons stated below, the

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Court DENIES Plaintiff’s Motion.

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II. BACKGROUND

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Plaintiff Moises E. Ponce Alvarez filed a complaint against Defendants King

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County, Deputy Cassandra Bertaina, Deputy Adam R. Buchan, Deputy Jonathan

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Hennessy, Deputy James Price, and John Does 1-2, alleging claims under 42 U.S.C. §

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1983 against the officers for excessive force in violation of the Fourth and Fourteenth

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Amendments, Monell claims under 42 U.S.C. § 1983 against King County for

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maintaining unconstitutional policies and practices, failure to train, and failure to

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supervise, a Washington state claim for assault and battery, and a Washington state claim

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for negligent use of force. On June 23, 2017, the Court granted in part and denied in part

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Defendants’ motion for summary judgment. Plaintiff’s Monell claims, his state law

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ORDER – 1

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claims, and his §1983 claims against Bertaina were dismissed. Dkt. # 38. On August 10,

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2017, at the conclusion of trial, the jury did not find, by a preponderance of the evidence,

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that Defendants Buchan, Price, and Henessy, violated Plaintiff’s right under the Fourth

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Amendment to be free from excessive use of force. Dkt. # 82. On September 11, 2017,

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Plaintiff filed this Motion for a New Trial. Dkt. # 88.
III. LEGAL STANDARD

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Federal Rule of Civil Procedure 59(a) provides that a “court may, on motion, grant

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a new trial on all or some of the issues . . . after a jury trial, for any reason for which a

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new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P.

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59(a).
Because “Rule 59 does not specify the grounds on which a motion for a new trial

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may be granted,” courts are “bound by those grounds that have been historically

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recognized.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003).

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Included among these historically recognized grounds are claims “that the verdict is

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against the weight of the evidence, that the damages are excessive, or that, for other

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reasons, the trial was not fair to the party moving.” Molski v. M.J. Cable, Inc., 481 F.3d

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724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co v. Duncan, 311 U.S. 243, 251

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(1940)). Ordinarily, a “trial court may grant a new trial only if the verdict is contrary to

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the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent

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a miscarriage of justice.” Id. (quoting Passantino v. Johnson & Johnson Consumer

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Prods., 212 F.3d 493, 510 n.15 (9th Cir. 2000)).
IV. ANALYSIS

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A claim for excessive force requires a showing that the defendant used an

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objectively unreasonable degree of force. Graham v. Connor, 490 U.S. 386, 388 (1989).

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Assessing whether a law enforcement officer’s use of force was reasonable “requires a

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careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth

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Amendment interests’’ against the countervailing governmental interests at stake.” Id. at

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ORDER – 2

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396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation marks

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omitted)). The following are factors that may be considered when determining the

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reasonableness of the force used: “the relationship between the need for the use of force

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and the amount of force used; the extent of the plaintiff's injury; any effort made by the

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officer to temper or to limit the amount of force; the severity of the security problem at

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issue; the threat reasonably perceived by the officer; and whether the plaintiff was

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actively resisting.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473, 192 L. Ed. 2d 416

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(2015); Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007); Graham, 490

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U.S. at 396. Plaintiff argues that the jury’s finding that he did not show by a

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preponderance of the evidence that Defendants used an excessive amount of force is

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contrary to the weight of evidence presented at trial.

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On May 21, 2014, Buchan was dispatched to a 911 call in the White Center

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neighborhood of Seattle. While searching the alley behind the caller’s house, Buchan

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encountered Plaintiff in his vehicle. The parties dispute what initially occurred in the

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alley, but eventually Buchan grabbed Plaintiff and pulled him out of the car. Plaintiff

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began struggling with Buchan. Shortly thereafter, Bertaina arrived and both deputies

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forced Plaintiff to the ground, using their body weights as leverage. As Plaintiff

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continued to struggle, Buchan and Bertaina remained on top of him until Price and

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Henessy arrived. Plaintiff was then handcuffed, but continued to kick and flail at the

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deputies. The decision was then made to double restrain Plaintiff, or “hog-tie” him. The

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double restraint was used to secure Plaintiff’s feet to each other, and then bind his feet to

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his handcuffs. A person that is “hog-tied” cannot stand up, walk, or kick. The parties

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dispute how long Plaintiff remained hog-tied. Plaintiff contends that he was in the

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double restraint for 40 minutes. Defendants testified that they did not know how long the

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double restraint was used, but that Plaintiff continued to writhe on the ground after the

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double restraint was applied. Dkt. # 88 Exs. 1, 2; Dkt. # 90 Exs. A, B.

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Plaintiff argues that hog-tying someone for 40 minutes “crosses the line into
ORDER – 3

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unreasonable force.” In support of this argument, Plaintiff cites to the factors in

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Kingsley, arguing that the circumstances surrounding Plaintiff’s arrest were such that

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Plaintiff did not present a threat to Defendants, therefore allowing Plaintiff to remain

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restrained for that long constituted an unreasonable degree of force. Dkt. # 88.

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The relevant Computer Aided Dispatch (“CAD”) report notes that “[w]e have

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[Plaintiff] double restrained” at 12:43:31, or 12:43 a.m. Dkt. 88 Ex. 4. The notation at

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1:22:49, or 1:22 a.m., states “[s]ubject was released from double restraints.” Id. Plaintiff

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argues that this evidence establishes that he was in double restraints from 12:43 a.m. until

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1:22 a.m., or for about 40 minutes. Susan Gordon, the administrator of the CAD system

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in the King County 911 Communications Center, testified that these entries were made by

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a dispatcher and that they do not necessarily reflect the actual time that the events

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occurred. Dkt. # 90 Ex. C. Gordon also testified that CAD entries are not always

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contemporaneous to the events described for several reasons: 1) a dispatcher may be

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handling more than one call at a time and may “jump back and forth” between events to

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make entries, (2) there may be a lag in time because communications are not added to the

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CAD report until the dispatcher actually updates it, and (3) occasionally a dispatcher is

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not told about an event at the time it occurs and the event is added later with a time

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override. Id. Entries to a CAD report can also be made by a deputy from the computer in

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his or her police vehicle. The relevant entries here are not marked as entries made by a

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deputy or entries made with a time override. Dkt. # 91 at 4.

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Plaintiff also points to the reported activities of Buchan and the other deputies

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while he was hog-tied as evidence of the length of time he was restrained. Buchan

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testified that after Plaintiff was placed in double restraints, the deputies ran Plaintiff’s

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name and license plate through their computers. Dkt. # 88 Ex. 1. Buchan then went to

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speak to the person who called 911 and had a discussion with the other deputies about

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what to do next. Id. At some point Buchan wrote the necessary forms for the arrest and

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gave these forms to Bertaina so she could transport Plaintiff to jail. Id. It is unclear from

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ORDER – 4

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the evidence presented at trial at what point after Buchan spoke to the other deputies

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Plaintiff was released from the double restraints. Additionally, both Buchan and Price

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testified at trial that they did not remember how long Plaintiff was in double restraints,

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but that Plaintiff was not double restrained for 40 minutes. Dkt. # 90 Exs. A, B. Plaintiff

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testified that he did not know how long he was double restrained because he lost

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consciousness shortly after being handcuffed. Therefore, a determination of the length of

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time Plaintiff was restrained required consideration of the accuracy of the CAD report

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notations, consideration of the other evidence presented regarding the events surrounding

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Plaintiff’s arrest, and a determination of the credibility of the witnesses.

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Even if it was determined that Plaintiff was double restrained for 40 minutes, that

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determination alone is not sufficient to conclude whether the amount of force used was

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unreasonable. Plaintiff argues that the amount of time qualifies as an excessive amount

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of force because the evidence does not prove that Plaintiff continued to resist arrest after

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Defendants placed him in double restraints. At trial, police practices expert, Christopher

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Myers, testified that the use of double restraints is appropriate “as long as the person

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presents an ongoing threat or is resisting and has a need to be restrained,” and that the

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person should be restrained until they are “calm”. Dkt. # 88 Ex. 3. It is undisputed that

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the evidence at trial showed that Plaintiff was initially actively resisting arrest. Dkt. # 88

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at 8, Dkt. # 89. However it was unclear whether or how long Plaintiff continued to resist

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after the application of the double restraints. Price testified that after Plaintiff was hog-

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tied, he “continued to twitch, but [Plaintiff] was no longer able to try and gain leverage.”

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Dkt. # 90 Ex. B.

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Plaintiff also argues that the length of time he was restrained was not reasonable

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given the fact that he did not pose a threat to the deputies or bystanders. Buchan testified

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that after their initial encounter and struggle, Plaintiff continued to struggle after Buchan

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and Bertaina began to use their body weights to hold him, and after they placed handcuffs

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on him. Dkt. # 88 Ex. 1. Buchan is six feet and four inches tall, weighed between 250

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and 260 pounds at the time of the arrest, and is physically bigger than Plaintiff. Id.

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Plaintiff also notes that there were eventually four deputies at the scene and while

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Plaintiff was hog-tied, he was unable to stand or walk, therefore Plaintiff was no longer a

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threat while he was restrained and outnumbered. Plaintiff also contends that he suffers

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from post-traumatic headaches as a result of the length of time that he was restrained, and

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that if he had been in the double restraints for several minutes as opposed to the alleged

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40 minutes, this “would have likely eliminated the headache condition that [Plaintiff]

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continues to suffer from today.” Dkt. # 88.

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As with the length of time Plaintiff was restrained and how long Plaintiff was

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resisting arrest, the evidence at trial was unclear regarding the severity of the possible

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security problem at issue, the threat perceived by the deputies, and whether Plaintiff’s

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headaches are related to this incident. Determination of these factors required an

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assessment of the credibility of the witnesses and an assessment of the circumstances

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surrounding the arrest. The Court may assess the credibility of the witnesses when

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considering whether to grant a new trial. Experience Hendrix L.L.C. v.

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Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014). However, the Court must

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consider whether the jury’s verdict was “against the great weight of the evidence or . . .

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seriously erroneous,” not “substitute its own inferences and credibility determinations for

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those of the jury” because the verdict may be contrary to the Court’s own assessment of

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the evidence. Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1230 (9th

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Cir. 2001). As noted by Defendants, all of these arguments were made by Plaintiff at

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trial and before the jury. Therefore, in determining that Defendants did not subject

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Plaintiff to an objectively unreasonable degree of force, the jury considered all of the

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above evidence and found Defendants’ witnesses and assessment of the events in

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question more credible than Plaintiff’s.

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When considering a Rule 59 motion, it is the district court’s duty “to weigh the

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evidence as [the court] saw it, and to set aside the verdict of the jury, even though

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supported by substantial evidence, where, in [the court's] conscientious opinion, the

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verdict is contrary to the clear weight of the evidence.” Molski v. M.J. Cable, Inc., 481

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F.3d 724, 729 (9th Cir. 2007). However, “a stringent standard applies when the motion is

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based on insufficiency of the evidence. A motion for a new trial may be granted on this

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ground only if the verdict is against the great weight of the evidence or it is quite clear

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that the jury has reached a seriously erroneous result.” Johnson v. Paradise Valley

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Unified Sch. Dist., 251 F.3d 1222, 1229 (9th Cir. 2001) (quoting Venegas v. Wagner,

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831 F.2d 1514, 1519 (9th Cir.1987)). Here, the evidence does not definitively support

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Plaintiff’s assessment of the events in question and a jury could have reasonably found

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that he did not meet his burden by a preponderance of the evidence. Therefore, Plaintiff

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has not shown that the jury’s verdict was contrary to the clear weight of the evidence.
V. CONCLUSION

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For the reasons stated above, the Court DENIES Plaintiff’s Motion for New Trial.
Dkt. # 88.
DATED this 5th day of April, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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