Nelson v. US Federal Marshal's Service et al

Filing 118

ORDER ADOPTING AND MODIFYING 112 REPORT AND RECOMMENDATION re 113 Objections, signed by Judge Benjamin H. Settle. Defendants' 89 Motion for Summary Judgment is Granted. (GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PATRICK W. NELSON and COLETTE
RAPP,
Plaintiffs,
v.

CASE NO. C16-5680 BHS
ORDER ADOPTING AND
MODIFYING REPORT AND
RECOMMENDATION

NICHOLAS WEBER and MICHAEL
POSTON,
Defendants.

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This matter comes before the Court on the Report and Recommendation (“R&R”)
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of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 112, and
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Plaintiff Patrick Nelson (“Nelson”) and Collette Rapp’s (“Plaintiffs”) objections to the
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R&R, Dkt. 113.
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On Febraury 13, 2020, Judge Creatura issued the R&R recommending that the
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Court grant Defendants Nicholas Weber (“Weber”) and Michael Poston’s (“Poston”)
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(collectively “Defendants”) motion for summary judgment. Dkt. 112. On February 27,
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2020, Plaintiffs filed objections. Dkt. 113. On March 12, 2020, Defendants responded.
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Dkt. 114.
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The district judge must determine de novo any part of the magistrate judge’s
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disposition that has been properly objected to. The district judge may accept, reject, or
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ORDER - 1

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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In this case, Plaintiffs assert two claims for excessive force. First, Plaintiffs argue

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that Weber used excessive force by using his vehicle to ram Plaintiffs’ vehicle. Judge

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Creatura concludes that Defendants are entitled to qualified immunity because there was

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no clearly established law holding that Weber used his vehicle to ram Plaintiffs’ vehicle

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was a constitutional violation. Dkt. 112 at 11–14. The Court agrees because Plaintiffs

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have failed to cite any authority to establish that Weber’s use of his vehicle to stop

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Plaintiffs’ vehicle was an unlawful seizure. Plaintiffs’ objections are the same arguments

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that Judge Creatura rejected as relating to cases involving officers shooting at suspects

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fleeing in vehicles and address the issue at too high a level of generality. Dkt. 112 at 14.

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Therefore, the Court adopts the R&R on this issue.

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Second, Plaintiffs argue that Weber violated their rights by shooting Nelson after

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the collision. Judge Creatura concludes that Plaintiffs have failed to establish a violation

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of their constitutional rights because the undisputed facts establish that Nelson made a

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furtive movement immediately before Weber starting shooting. Dkt. 112 at 15–19.

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Although Nelson declares that he raised his hands to protect himself after Weber started

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shooting, Plaintiffs offer no evidence to dispute Weber’s testimony that he saw Nelson’s

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right shoulder move backward and left shoulder move forward as if Nelson was reaching

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for a weapon below Weber’s line of sight. The Court agrees with Judge Creatura that

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given the totality of the circumstances, Weber reasonably perceived an imminent threat

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of harm. Weber was pursuing Nelson as a suspect in the burglary of a gun store, some of

ORDER - 2

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the weapons from that burglary had not yet been recovered, and knew that Nelson had

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prior violent felonies as well as a felony for attempting to elude. Therefore, the Court

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adopts the R&R on this issue.

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Finally, the Court recognizes that some jurists could agree with Plaintiffs that

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either (1) questions of fact exist as to Weber’s credibility on events immediately after the

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car collision given his injuries and the deployed air bag or (2) Weber violated Nelson’s

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rights because the shoulder movement did not rise to the level of an imminent threat.

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Thus, the Court also grants Defendants’ motion as to qualified immunity on this claim

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because Plaintiffs have failed to show that the law was clearly established at the time of

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shooting such that Nelson’s shoulder movement did not rise to the level of an imminent

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threat in the totality of the circumstances.

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Therefore, the Court having considered the R&R, Plaintiff’s objections, and the
remaining record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED and MODIFIED;

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(2)

Defendants’ motion for summary judgment, Dkt. 89, is GRANTED as

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stated herein; and

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(3)

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Dated this 28th day of May, 2020.

The Clerk shall enter a JUDGMENT and close the case.

A

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BENJAMIN H. SETTLE
United States District Judge

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