Preston v. Boyer et al

Filing 50

ORDER adopting the Report and Recommendation 42 in it's entirety, overrules the 44 Objections thereto, and grants Defendant Miller's 34 Motion for judgment on the pleadings. Plaintiff's Fourth, Fifth, Eighth, and Fourteenth Amendment claims against Defendant Miller are dismissed with prejudice and without leave to amend. Signed by U.S. District Judge John C Coughenour. **5 PAGE(S), PRINT ALL** (Robert Preston, Prisoner ID: 935915) (PM)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 ROBERT JOHN PRESTON, 10 Plaintiff, CASE NO. C16-1106-JCC-MAT ORDER v. 11 RYAN BOYER and JEFFERY MILLER, 12 13 Defendants. 14 15 This matter comes before the Court on Plaintiff Robert John Preston’s objections (Dkt. 16 17 18 19 20 21 22 23 24 25 26 No. 44) to the report and recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge (Dkt. No. 42). Judge Theiler recommended that Defendant Jeffrey Miller’s motion for judgment on the pleadings, (Dkt. No. 34), be granted. (Dkt. No. 42.) For the reasons explained herein, the report and recommendation (Dkt. No. 42) is ADOPTED, Plaintiff’s objections (Dkt. No. 44) are OVERRULED, and Defendant Miller’s motion for judgment on the pleadings (Dkt. No. 34) is GRANTED. I. BACKGROUND On June 30, 2014, Plaintiff encountered and ran from Defendant Snohomish County Deputy Ryan Boyer at an Everett Park-n-Ride. (Dkt. No. 10 at 6.) Deputy Boyer gave chase, forcibly subdued, and eventually rendered Plaintiff unconscious. (Id.) Plaintiff claimed he had a ORDER PAGE - 1 1 seizure at some point during this struggle. (Id.) Being unconscious, Plaintiff was forced to rely 2 solely on reports from other officers at the scene to describe what happened next. (Id. at 9–10.) 3 Defendant Snohomish County Captain Jeffrey Miller drove to the scene and saw Deputy Boyer 4 struggling to subdue Plaintiff, who was flailing around and seemed to be ignoring Deputy 5 Boyer’s instructions. (Id.) During the struggle, Captain Miller saw Deputy Boyer kick Plaintiff’s 6 side twice before he secured Plaintiff’s arms. (Id.) Captain Miller then ran over and pinned 7 Plaintiff’s legs down while Deputy Boyer handcuffed him. (Id.) Plaintiff sustained serious 8 injuries during the confrontation, and was taken to the hospital for further treatment. (Dkt. No. 9 44 at 5–7.) 10 Plaintiff brought a 42 U.S.C. § 1983 civil rights action against Deputy Boyer and Captain 11 Miller. (Dkt. No. 10.) At issue here are Plaintiff’s claims against Captain Miller (hereinafter 12 “Defendant”). Plaintiff alleges that Defendant violated his Fourth, Fifth, Eighth, and Fourteenth 13 Amendment rights by (1) using excessive force to subdue him, (2) failing to stop Deputy Boyer 14 from doing the same, and (3) falsifying his police report. (Dkt. No. 10 at 5.) Defendant Miller 15 brought a Rule 12(c) motion for judgment on the pleadings for failure to state a claim. (Dkt. No. 16 34.) Judge Theiler recommended that the motion be granted without leave to amend. (Dkt. No. 17 42 at 12–13.) Plaintiff objected to Judge Theiler’s recommendations on the duty to intervene and 18 falsification of police report claims. (Dkt. No. 44 at 2–7.) 19 II. DISCUSSION 20 A. 21 Objections to a magistrate judge’s report and recommendations are reviewed de novo. 28 22 U.S.C. § 636(b)(1). A motion for judgment on the pleadings may be brought “after the pleadings 23 are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). “A Rule 12(c) motion 24 challenges the sufficiency of the opposing party’s pleadings and operates in much the same 25 manner as a motion to dismiss under 12(b)(6.)” Morgan v. Yolo, 436 F. Supp. 2d 1152, 1154–55 26 (E.D. Cal. 2006). “Judgment on the pleadings is proper when the moving party clearly ORDER PAGE - 2 Legal Standard 1 establishes on the face of the pleadings that no material issue of fact remains to be resolved and 2 that it is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & 3 Co., 896 F.2d 1542, 1550 (9th Cir. 1989). The court construes all material allegations in the light 4 most favorable to the non-moving party. Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 5 1043, 1046 (9th Cir. 2006). Thus, a “[m]otion for Judgment on the Pleadings may consequently 6 be granted if, after assessing both the complaint, plus matters for which judicial notice is proper, 7 it appears ‘beyond doubt that the [non-moving party] cannot prove any facts that would support 8 his claim for relief.’” Morgan, 436 F. Supp. 2d at 1155 (quoting R.J. Corman Derailment 9 Services, LLC v. Int’l Union of Operating Engineers, Local 150, AFL–CIO, 335 F.3d 643, 647 10 (7th Cir.2003). 11 B. 12 Plaintiff argues that Defendant had a duty to intervene and prevent Deputy Boyer from 13 committing further unconstitutional abuses. (Dkt. No. 44 at 2–5.) For the purposes of ruling on 14 the instant motion, the Court assumes without deciding that Deputy Boyer’s use of force was 15 unconstitutional. Duty to Intervene 16 “[P]olice officers have a duty to intercede when their fellow officers violate the 17 constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289 18 (9th Cir. 2000). An officer who chooses inaction violates a constitutional right that “is 19 analytically the same as the right violated by the person who strikes the blows.” United States v. 20 Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994). To be liable, an officer must have had “a realistic 21 opportunity” to intercede. Cunningham, 229 F.3d at 1289. Whether or not an opportunity is 22 realistic is often a matter of timing. For example, courts have found that there can be no realistic 23 opportunity to intervene if the officer was not present when the violation took place, or even if 24 they are present, if the constitutional violation happens too quickly for them to prevent. See, e.g., 25 id. at 1290; Knapps v. City of Oakland, 647 F. Supp. 2d 1129, 1159–60 (N.D. Cal. 2009). 26 Plaintiff argued that Defendant could have limited the actions Deputy Boyer took in his ORDER PAGE - 3 1 presence. (Dkt. No. 38 at 7.) However, the facts do not support this argument. Specifically, 2 Plaintiff alleges that Defendant arrived at the Park-n-Ride just in time to see Deputy Boyer 3 (1) stand over Plaintiff, (2) with his Taser deployed, and (3) kick Plaintiff’s side twice after he 4 failed to comply with his verbal commands. (Dkt. No. 10-1 at 12.) His objections to the report 5 and recommendation do little more than repeat these allegations. (Dkt. No. 44 at 2–5.) Based on 6 the facts alleged, taken as true, the Court finds that Defendant did not have a realistic opportunity 7 to intervene because he was either en route to the scene or in his vehicle when the alleged 8 constitutional violation occurred. Accordingly, Plaintiff’s objections to Judge Theiler’s 9 recommendation to dismiss the failure to intervene claims are overruled. 10 C. 11 Plaintiff next argues that Defendant altered his police report. (Dkt. No. 10 at 10; Dkt. No. 12 44 at 6–7.) In support, Plaintiff alleges that both Defendant and Snohomish County Deputy L.M. 13 Zelaya claim to have arrived at approximately the same time, but Deputy Zelaya’s report does 14 not mention Defendant’s involvement in Plaintiff’s arrest. (Dkt. No. 10 at 10.) In his response to 15 Defendant’s motion, Plaintiff further claimed Defendant lied when he (1) wrote that Plaintiff 16 responded to his verbal commands during handcuffing, and (2) omitted that Plaintiff was 17 unconscious and needed to be placed on life support after the incident. (Dkt. No. 38 at 3–7.) 18 Plaintiff’s objections to the report and recommendation repeat the above allegations. (Dkt. No. 19 44 at 7.) 20 Falsification of Police Report “Falsified police reports are only actionable under § 1983 if those reports result in the 21 deprivation of life, liberty or property.” Comfort v. Town of Pittsfield, 924 F. Supp. 1219, 1230 22 (D. Me. 1996) (citing Landrigan v. City of Warwick, 628 F.2d 736, 744–45 (1st Cir. 1980)); see 23 also Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012) (collecting cases). “[T]he mere 24 filing of [a] false police report[], by [itself] and without more, d[oes] not create a right of action 25 in damages under 42 U.S.C. § 1983.” Landrigan, 628 F.2d at 745. 26 Defendant maintains that Plaintiff’s argument is speculative, and that there is no valid ORDER PAGE - 4 1 basis to believe Defendant altered his report. (Dkt. No. 39 at 3.) The Court agrees. Deputy 2 Zelaya reports arriving at the scene to find Deputy Boyer “holding [Plaintiff] against the 3 ground.” (Dkt. No. 42 at 12.) This description of what happened after Plaintiff was subdued is 4 not inconsistent with Defendant’s account of how he helped subdue Plaintiff. Plaintiff’s next 5 claim is contradicted by Deputy Zelaya’s report, which states “I saw [Plaintiff] was in and out of 6 consciousness.” (Dkt. No. 10-1 at 11.) Plaintiff’s final claim is also insufficient because omitting 7 the full extent of Plaintiff’s injuries, and the full breadth of medical treatment he received, is not 8 the same as falsifying a police report. Furthermore, even if the Court found there were 9 falsifications, Plaintiff did not allege in his amended complaint, (Dkt. No. 10), response to the 10 motion for judgment on the pleadings, (Dkt. No. 38), or objections to the report and 11 recommendation, (Dkt. No. 44), that the falsity of the police reports resulted in some deprivation 12 of life, liberty, or property. Accordingly, Plaintiff’s objections to Judge Theiler’s 13 recommendation as to the falsification of police report claim are overruled. 14 III. CONCLUSION 15 For the foregoing reasons, the Court ADOPTS the report and recommendation, (Dkt. No. 16 42), in its entirety, OVERRULES the objections thereto, (Dkt. No. 44), and GRANTS Defendant 17 Miller’s motion for judgment on the pleadings. (Dkt. No. 34.) Plaintiff’s Fourth, Fifth, Eighth, 18 and Fourteenth Amendment claims against Defendant Miller are DISMISSED WITH 19 PREJUDICE and without leave to amend. The Court DIRECTS the Clerk to send a copy of this 20 order to the parties and Judge Theiler. 21 22 DATED this 22nd day of March 2017. A 23 24 25 John C. Coughenour UNITED STATES DISTRICT JUDGE 26 ORDER PAGE - 5

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