Hoverson v. Klickitat County of et al

Filing 44

ORDER by Judge Benjamin H. Settle granting 29 Motion for Summary Judgment.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NORVAL HOVERSON,

CASE NO. C16-5959 BHS

Plaintiff,
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v.

ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

KLICKITAT COUNTY, et al.,

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Defendants.

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This matter comes before the Court on Defendants Klickitat County Sheriff

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Department and Klickitat County’s (“County”) (collectively “Defendants”) motion for

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summary judgment (Dkt. 29). The Court has considered the pleadings filed in support of

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and in opposition to the motion and the remainder of the file and hereby grants the

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motion for the reasons stated herein.

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I.

PROCEDURAL HISTORY

On October 19, 2016, Plaintiff Norval Hoverson (“Hoverson”) filed a complaint

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against Defendants in Clark County Superior Court for the State of Washington. Dkt. 1-

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2. Hoverson asserted claims for personal injury, negligent supervision and training,

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negligent infliction of emotional distress, reckless infliction of cruel and unusual

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punishment, violation of due process, and a negligent failure to adopt proper standards

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and procedures. Id.

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On July 18, 2018, Defendants moved for summary judgment. Dkt. 29. On August

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6, 2018, Hoverson responded. Dkt. 36. On August 10, 2018, Defendants replied. Dkt.

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39.

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II. FACTUAL BACKGROUND
On September 18, 2013, Hoverson was a pre-trial detainee at the County Jail.

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While it is undisputed that Hoverson was making some noise by knocking or kicking the

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door to his isolation cell, the parties do dispute the extent of the commotion. Hoverson

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contends that he kicked the door “just enough to make noise.” County corrections officer

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Andrew Gonzalez (“Gonzalez”) declares that Hoverson was kicking and hitting the door

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such that he was interfering with the officers’ ability to book new inmates. Gonzalez was

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also concerned for Hoverson’s safety due to the extreme nature of Hoverson’s actions.

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Thus, Gozalez decided to subdue Hoverson by deploying oleoresin capsicum spray,

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commonly known as pepper spray.

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According to Hoverson, a correction officer ordered him to get on his knees and

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place his eyes in the cell’s food slot. Gonzalez then sprayed the pepper spray directly

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into Hoverson’s eyes. Hoverson asserts that he asked Gonzalez if he was done spraying

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to which Gonzalez answered “no” and sprayed Hoverson a second time until the can was

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empty. After the spraying, Hoverson asserts that the officers made him sit in the cell for

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approximately 20 minutes before they gave him supplies to clean his eyes and let him

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shower. While Defendants dispute this version of the events, Defendants concede that

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the Court must take the facts in the light most favorable to Hoverson.

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Regarding Hoverson’s claims, he does not asserts any claim against an individual

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defendant. Instead, he claims that the County is liable for failure to train and/or failure to

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implement proper policies.

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III. DISCUSSION
Defendants move for summary judgment on all of Hoverson’s claims. Dkt. 29. In

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response, Hoverson concedes his Eighth Amendment claim and his reckless infliction of

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cruel and unusual punishment claim. Dkt. 36 at 3 n.2.

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A.

Summary Judgment Standard
Summary judgment is proper only if the pleadings, the discovery and disclosure

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materials on file, and any affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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The moving party is entitled to judgment as a matter of law when the nonmoving party

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fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

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323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

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could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

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present specific, significant probative evidence, not simply “some metaphysical doubt”).

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See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

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if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

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jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The

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Court must consider the substantive evidentiary burden that the nonmoving party must

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meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

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issues of controversy in favor of the nonmoving party only when the facts specifically

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attested by that party contradict facts specifically attested by the moving party. The

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nonmoving party may not merely state that it will discredit the moving party’s evidence

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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

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nonspecific statements in affidavits are not sufficient, and missing facts will not be

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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

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B.

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Municipal Liability
In order to establish municipal liability, a plaintiff must show that a “policy or

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custom” led to the plaintiff’s injury. Monell v. Department of Social Services, 436 U.S.

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658, 694 (1978). “The Court has further required that the plaintiff demonstrate that the

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policy or custom of a municipality ‘reflects deliberate indifference to the constitutional

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rights of its inhabitants.’” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir.

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2016), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017)

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(quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)).

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Policies of omission regarding the supervision of employees, can be “policies” or

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“customs” that create municipal liability under Monell, but only if the omission “reflects

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a ‘deliberate’ or ‘conscious’ choice” to countenance the possibility of a constitutional

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violation. City of Canton, 489 U.S. at 389–390. The need to remedy the omission “is so

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obvious, and the inadequacy so likely to result in the violation of constitutional rights, . . .

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the policymakers of the city can reasonably be said to have been deliberately indifferent

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to the need.” Id. In other words, the plaintiff must show that the entity “was on actual or

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constructive notice that its omission would likely result in a constitutional violation.”

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Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1145 (9th Cir. 2012). On this issue, the

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Court has noted that “a pattern of similar constitutional violations by untrained

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employees is ‘ordinarily necessary’ to demonstrate deliberate indifference.” Connick v.

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Thompson, 563 U.S. 51, 62 (2009) (quoting Board of Comm’rs of Bryan Cty. v. Brown,

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520 U.S. 397, 409 (1997)).

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In this case, Hoverson has failed to submit any evidence that the County should

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have known that its failure to implement a pepper spray policy would lead to

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constitutional violations. The record contains no evidence to establish a pattern or

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practice of unlawful use of pepper spray, or anything other than this being a single,

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isolated incident. For example, in City of Canton, the Supreme Court stated that the city

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knew for certain that its police officers would encounter violent and fleeing suspects and

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that the city armed those officers with deadly weapons. 489 U.S. at 390. Under such

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circumstances, the need to train officers on the use of these weapons was so obvious that

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failure to do so was deliberately indifferent to individual rights. Id. n.10. When

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considering intermediate force such as pepper spray, the Ninth Circuit upheld denial of

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summary judgment when a plaintiff submitted evidence of multiple instances of

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excessive force by the same police force over a nine-month period of time. Davis v.

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Mason Cty., 927 F.2d 1473, 1481–83 (9th Cir. 1991).

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In light of these authorities, Hoverson has failed to establish that one instance of

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excessive force with pepper spray creates a question of fact regarding municipal liability

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based on a failure to train or an omission to implement a use of force policy. Therefore,

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the Court grants Defendants’ motion on Hoverson’s due process claim.

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C.

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Negligence
“The public duty doctrine recognizes that the duties of public officers normally are

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owed only to the general public.” Coffel v. Clallam Cty., 47 Wn. App. 397, 402 (1987).

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“Accordingly, under the public duty doctrine, a public entity has a duty of care when it

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owes a duty ‘to the injured plaintiff,’ but does not have a duty of care when it owes a duty

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‘to the public in general.’” Osborn v. Mason Cty., 157 Wn.2d 18, 27 (2006) (quoting

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Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 778 (2001)). “We often

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paraphrase this ‘basic principle of negligence law’ as ‘a duty to all is a duty to no one.’”

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Id. (quoting Babcock, 144 Wn.2d at 785).

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In this case, Defendants argue that Hoverson’s state law negligence claims are

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barred by the public duty doctrine. Dkt. 29 at 17–19. The Court agrees because any duty

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to implement jail policies or train officers is a general duty to all. Hoverson doesn’t

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really contest the law, he simply asserts that a reasonable jury could find that the County

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failed to supervise Gonzalez. Dkt. 36 at 12–13. This claim, however, is foreclosed.

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Shope v. City of Lynnwood, C10-0256RSL, 2011 WL 1154447, at *6 (W.D. Wash. Mar.

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28, 2011) (“The duty of the City to hire, train, retain, and supervise its officers is owed to

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the public at large, not to plaintiff individually.”). Therefore, the Court grants

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Defendants’ motion on Hoverson’s remaining state law claims as well.

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IV. ORDER

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Therefore, it is hereby ORDERED that Defendants’ motion for summary

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judgment (Dkt. 29) is GRANTED. The Clerk shall enter a JUDGMENT and close the

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case.

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Dated this 11th day of September, 2018.

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BENJAMIN H. SETTLE
United States District Judge

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