Fleming et al v. Bjornstad et al

Filing 94

ORDER denying 86 Motion to Stay by Judge Benjamin H Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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8 ASHLEY FLEMING, et al.,
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Plaintiffs,

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CASE NO. C12-5247 BHS
ORDER DENYING PLAINTIFF’S
MOTION TO STAY

v.

11 TOR BJORNSTAD, et al.,
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Defendants.

13 PAUL FRENCH,
Plaintiff,

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v.

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16 TOR BJORNSTAD, et al.,
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Defendants.

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This matter comes before the Court on Plaintiff Paul French’s (“French”) motion
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to stay case pending appeal (Dkt. 86). The Court has considered the pleadings filed in
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support of the motion and the remainder of the file and hereby denies the motion for the
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reasons stated herein.
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ORDER - 1

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I. PROCEDURAL HISTORY
On May 7, 2012, French filed a civil rights complaint against numerous

3 defendants alleging violations of constitutional rights, false arrest, false imprisonment,
4 malicious prosecution, intentional infliction of emotional distress, and negligence. Cause
5 No. 12-5247BHS, Dkt. 1.
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On August 30, 2012, the Court consolidated French’s case with this case. Dkt. 34.

7 On September 16, 2013, the Court granted the parties’ stipulated dismissal of seven
8 defendants. Dkt. 41.
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On October 16, 2013, Defendants Rich Allen, Tor Bjornstad, Jeff Herbig, Chris

10 Johnstone, Sean Lindros, City of Olympia, and Jim Partin (“Defendants”) filed a motion
11 for partial summary judgment. Dkt. 46. On December 11, 2013, the Court granted the
12 motion. Dkt. 83. On December 19, 2013, French filed a notice of appeal and motion to
13 stay the case pending resolution of the appeal. Dkt. 86.
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II. FACTUAL BACKGROUND
On April 8, 2013, a group of demonstrators participated in an anti-police brutality

16 march. The march started on the west side of Olympia and eventually ended up in
17 downtown Olympia. French participated in the march. During the march, the police
18 received numerous calls that the protesters were interfering with traffic. Dkt. 75, Second
19 Declaration of Lieutenant Holmes, Exh. 1. The dispatch report also shows that the march
20 obstructed a paramedic unit of the Olympia Fire Department. Id., ¶ 2.
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Based on the obstructions of traffic and information of other incidents contributed

22 to the demonstrators, Lieutenant Holmes decided that the march must be stopped. Dkt.

ORDER - 2

1 51, Declaration of Lieutenant Ray Holmes, ¶¶ 8–13. Lieutenant Holmes ordered all
2 available officers to surround the marchers and move them to a nearby vacant lot. Id. ¶
3 15. All of the protestors were arrested one by one for pedestrian interference. Id.
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During the march, a photographer for a local newspaper, Tony Overman, reported

5 an assault by a protestor. Id. ¶ 9. After the group was assembled in the vacant lot, the
6 assaulter was identified as Jamie Williams. Officers Watkins and Nutter moved in to
7 remove Ms. Williams from the group of people. However, the people around Ms.
8 Williams grabbed onto her generating a pulling match with the officers. Officer Lindros
9 states that he moved in with his baton and immediately struck the arms of the people
10 holding Ms. Williams. Dkt. 49, Declaration of Sean Lindros, ¶ 2. Officer Lindros claims
11 that someone’s fist hit him in the face and identified French as the attacker. Id.
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III. DISCUSSION
In his motion, French provides no authority for the proposition that he may appeal

14 as a matter of right. Thus, the Court assumes that French is requesting certification for an
15 interlocutory appeal. Under 28 U.S.C. § 1292(b), an order may be certified for
16 interlocutory appeal where: (1) the order involves a “controlling question of law”; (2) as
17 to which there is “substantial grounds for difference of opinion”; and (3) “an immediate
18 appeal may materially advance the ultimate termination of the litigation.” In re Cement
19 Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). Certification is proper where
20 “allowing an interlocutory appeal would avoid protracted and expensive litigation.” Id. at
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ORDER - 3

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French appears to assert two grounds for appeal. First, French claims that the

2 Court should not have dismissed his negligent supervision claim against the City of
3 Olympia. Dkt. 86 at 2. The Court granted the City’s motion because “unsubstantiated
4 complaints do not show a pattern of inappropriate conduct.” Dkt. 83 at 8. This is not a
5 controlling question of law because it is a lack of evidence by French. Moreover, there is
6 not a substantial ground for difference of opinion because the City’s investigation of the
7 complaints and subsequent conclusions would not cause reasonable jurists to disagree on
8 the issue of whether the City acted with deliberate indifference to French’s constitutional
9 rights. For example, the case French cites in support of his argument involved systemic
10 allegations of police brutality and investigations that concluded without contacting the
11 victims. See Fiacco v. City of Rensselaer, N.Y. 783 F.2d 319, 329–332 (2nd Cir. 1986).
12 French has failed to submit evidence creating a material question of fact whether the
13 City’s handling of the complaints against Lindros rise to, or even approach, the evidence
14 of deliberate indifference set forth in Fiacco. Therefore, the Court declines to certify this
15 issue for appeal or stay the case while French appeals this issue.
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Second, French appears to argue that his initial detainment was unlawful. The

17 Court finds that there would not be substantial disagreement on the issue of whether
18 participating in a demonstration without a permit or being part of a demonstration that
19 obstructs traffic establishes, at a minimum, reasonable suspicion to briefly detain
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ORDER - 4

1 French. 1 Therefore, the Court declines to certify this issue for appeal or stay the case
2 while French appeals this issue.
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IV. ORDER
Therefore, it is hereby ORDERED French’s motion to stay case pending appeal

5 (Dkt. 86) is DENIED.
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Dated this 24th day of December, 2013.

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BENJAMIN H. SETTLE
United States District Judge

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Although French argues that the Court granted summary judgment to defendants who
did not move for summary judgment (Dkt. 86), all remaining defendants moved for summary
22 judgment (see Dkt. 46 at 2–3).

ORDER - 5