The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER RE:DEFENDANTS'MOTION FOR SUMMARY JUDGMENT (DKT.16)
Plaintiff Donald Lewis Law instituted this civil rights action under 42 U.S.C. § 1983 against the City of Post Falls, Post Falls Chief of Police Clifford Hayes, and Post Falls Police Officers Hope Tucker, Patrick Leonard, Mark Brantl, Josh Payton, and Mark Goodwin, claiming that the Officers' use of a taser during his arrest and overly tight handcuffs constituted excessive force under the Fourth Amendment. (Dkt. 1.) Plaintiff also claims that he was wrongfully arrested, maliciously prosecuted, and that the City of Post Falls and the Chief of Police should be held liable for instituting unconstitutional policies and for failing to adequately train the City's law enforcement officers. Defendants move for summary judgment, arguing that, based on the undisputed facts before the Court, they are entitled to judgment as a matter of law. (Dkt. 16.)
The Court heard arguments on Defendants' motion on December 15, 2010. Based upon the parties' briefing, counsels' arguments, and the materials submitted on the motion, for the reasons more fully discussed below and under recent Ninth Circuit precedent, the Court will grant summary judgment dismissal in favor of Defendants.
The following facts are undisputed or, when disputed, taken in the light most favorable to Donald Law, the Plaintiff and non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (recognizing the district court's obligation to construe the record in the light most favorable to the non-moving party on motion for summary judgment).
Plaintiff is 75 years of age and suffers from impaired hearing as a result of exposure to "jet engine whine" while employed with the armed forces.
On June 27, 2009, Post Falls police officers Hope Tucker, Patrick Leonard, Mark Brantl, and Josh Payton were dispatched to the home of Donald and Betty Law in reference to a domestic dispute. Plaintiff's wife, Betty Law, called the police in response to a verbal altercation between her husband and Julie Pelllini (Plaintiff's daughter). At the time of the incident, Julie Pellini ("Julie") and her husband Richard Pellini ("Richard") were residing at Plaintiff's house.
Concerning the incident, Plaintiff states in his affidavit that:
On June 27, 2009, my daughter Julie Pellini, came to me while I was sitting outside on my deck. Julie began screaming at me as soon as she came outside. She was very angry that I had given my truck to my grandson, Michael Quindt. She came right up to where I was sitting in the chair, and was screaming at me with her face about six inches from my face. She physically blocked me from getting up out of the chair. She screamed loudly at me for 20 minutes. I told her to "stop" several times and told her to "go away" at least three times. She was screaming so loud that the neighbors 75 yards away could hear her . . . . After this had gone on for at least 20 minutes, and after I had repeatedly requested that she stop, I finally slapped her once with an open hand to try to get her to move herself away.
Aff. of Donald Law, ¶ 5 (Dkt. 18-1.) Plaintiff further testifies in his affidavit that, when Julie's husband Richard saw Plaintiff slap Julie, Richard "came charging out onto the deck and was visibly angry and screaming." Id., at ¶ 7. Plaintiff states that he was afraid of his daughter's husband, who allegedly has a violent criminal history. Id., at ¶¶ 6-7. Plaintiff admits that in response to his son-in-law's aggression, Plaintiff "pulled out [his] 9 mm TZ75 pistol and pointed it at Richard Pellini." Id., at ¶ 7.
The Defendant Officers arrived at Plaintiff's residence and located Richard outside the home. Aff. of Hope Tucker, ¶ 7 (Dkt. 16-5.) Richard informed the Officers that his wife, Julie, and her father Donald Law had gotten into a verbal altercation and that Mr. Law had punched Julie in the face several times. Id., at ¶ 8. Plaintiff denies punching his daughter, but admits to slapping her in the face with an open hand. Richard also informed the Officers that Plaintiff had pointed a gun at both him and Julie. Id., at ¶ 9. Richard told the Officers that Plaintiff was seated out back on the porch and had a small pistol hidden underneath his blanket or chair. Id. Sergeant Leonard remained outside with Richard, while Officers Brantl, Payton and Tucker entered the home. Id., at ¶ 11.
The three officers located Plaintiff, who was sitting in a chair on the back porch. Officers Brantl and Payton remained outside with Plaintiff while Officer Tucker went inside to talk with Julie. Officer Tucker located Julie, who informed her that Plaintiff had punched her in the face and pointed a gun at her husband Richard. Id., at ¶¶ 14-18. Officer Tucker observed Julie's face to be red around the jaw area. Id., at ¶ 16. According to Officer Tucker, Julie told her that she was unsure whether her father remained in possession of the gun. Id., at ¶ 19. Officer Tucker contacted Officers Brantl and Payton via radio and notified them that Plaintiff may still be in possession of a gun and that it may be located near or underneath Plaintiff's blanket. Id., at ¶ 20.
Officer Brantl asked Plaintiff if he was still in possession of the gun, to which Plaintiff told the officers that he had taken the gun and put it in his bedroom. Aff. of Mark Brantl, ¶ 15 (Dkt. 16-10.) Officer Tucker returned to the porch area and informed Plaintiff that he was under arrest for aggravated assault and battery. Aff. of Hope Tucker, ¶ 24. As Officer Tucker approached the porch, she ordered Plaintiff to stand and place his hands behind his back. Id., at ¶ 25. Plaintiff did not respond, claiming later that, because of his disability, he was unable to hear the Officer's order. Compl., at 2-3.
Plaintiff's wife came onto the porch and told Plaintiff that the officers wanted him to stand up. Aff. of Betty Law, ¶ 7 (Dkt. 18-2.) Mrs. Law states in her affidavit that "[i]t was clear to me that he could not hear the female police officer." Id. During the arrest, Officers Brantl and Payton each grabbed hold of Plaintiff's arms and advised him to place his hands behind his back. Aff. of Josh Payton, ¶ 18 (Dkt. 16-8.)
Plaintiff states in his affidavit that the Officers shoved his head into the chair, put their knee into his back and tried to handcuff him with his hands at shoulder level. Plaintiff yelled out "you are hurting me." Aff. of Donald Law, ¶ 10. Plaintiff claims that, due to mobility restrictions, he cannot bring his hands closer than about a foot together behind his back and, when the Officers were unsuccessful in their first attempt to handcuff Plaintiff, Plaintiff heard one of the officers say "get a double cuff." Id. At that point Plaintiff felt a severe burning pain in his back, which he later learned was a taser applied in "drive-stun" mode. Plaintiff denies that he resisted arrest in any way.
Plaintiff alleges that after the Officer applied the taser, Plaintiff passed out and the next thing he remembers is standing up in handcuffs and being searched. Id. Plaintiff repeatedly told the police that the handcuffs were cutting into his wrists and pleaded with them to loosen the cuffs. Id., at ¶ 11. Plaintiff was placed in the patrol car with his handcuffs still on. While waiting in the patrol car, Plaintiff informed one of the officers of the pain in his wrists. Aff. of Donald Law, at ¶ 12. The officer loosened Plaintiff's safety belt and told him to adjust his hands to relieve the pressure, but told Plaintiff that he could not loosen the handcuffs. Id. During the ride to the police station, Officer Tucker asked Plaintiff whether he needed to go to the hospital to which Plaintiff responded "No, I just need you to loosen the cuffs." Id., at ¶ 13. Plaintiff's request was ignored, and Plaintiff was taken to the police station where he was booked and the handcuffs were taken off. Id. After arriving at the police station and being put in a cell, Plaintiff requested medical assistance because his wrist was hurting and his leg was bleeding.
Plaintiff alleges that he suffered the following injuries as a result of the arrest: two four-inch gashes on his leg when the Officers shoved him into the chair; permanent severe nerve damage due to the officers placing his hands behind his back; permanent and severe numbing of the hands as a result of the overly tight handcuffing; and permanent injury to his spinal column. Id., at ¶ 11. Plaintiff further claims that the application of the taser physically affected his nervous system, causing his blood pressure to skyrocket at the time of the arrest, and that he continues to have high blood pressure as a result of the Officers' use of the taser. Compl., at ¶ 5. Plaintiff has not submitted any medical records substantiating his medical conditions or that they were caused by the actions of the Officers.
Defendants have submitted excerpts from Plaintiff's deposition testimony. (Dkt. 16-3.) In his deposition, Plaintiff testified that he suffered from high blood pressure prior to the arrest and that he had been previously prescribed medication for that condition. Id., at 78. Plaintiff has not received a medical opinion that the Officers' use of the taser caused, or amplified, his cardiovascular condition. Id., at 93. Rather, he attributes the high blood pressure to the taser through information he gathered from the Internet. Id. Plaintiff also states in his deposition that he has suffered back pain since approximately 1979, when he was working as a miner, id., at 89-90, and that he had previously suffered an injury to his left wrist as a child in which he fell through a glass door and severed the tendons in his wrist, id., at 46. Plaintiff has not received a medical opinion that he suffered permanent injury to his wrist as a result of the handcuffing. Id., at 87.
Following his arrest, Plaintiff was charged with Aggravated Assault, Idaho Code § 18-905, and Battery, Idaho Code §§ 18-903. The state court judge determined that probable cause existed to believe that Plaintiff had committed both of the charged crimes. The charges, however, later were dismissed by motion of the prosecutor.
The Post Falls Police Department has adopted policies and procedures with regard to the use of tasers. The policies are attached to the affidavit of Clifford Hayes (Dkt. 16-4), and state the following: 309.1 PURPOSE AND SCOPE When properly applied in accordance with this Policy, the TASER device is considered a non-deadly control device which is intended to temporarily incapacitate a violent or potentially violent individual without causing serious injury. .... 309.2 POLICY Personnel who have completed training approved by this department may be issued a TASER for use during their current assignment . . . .
309.3 VERBAL AND VISUAL WARNINGS Unless it would otherwise endanger officer safety or is impractical due to circumstances, a verbal announcement of the intended use of the TASER shall precede the application of a TASER . . . . 309.4 USE OF THE TASER . . .
Authorized personnel may use the TASER when circumstances known to the individual officer at the time indicate that the application of the TASER is reasonable to subdue or control:
(a) A violent or physically resisting subject, or
(b) A potentially violent or physically resisting subject if:
1. The subject has verbally or physically demonstrated an intention to resist;
2. The officer has given the subject a verbal warning of the intended use of the TASER following by a reasonable opportuinity to voluntarily comply;
3. Other available options reasonably appear ineffective or would present a greater danger ...