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Roger J. Wise v. Kootenai County

April 26, 2013


The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge



Before the Court is Defendants' Motion for Summary Judgment. (Dkt. 35.) Plaintiff Roger Wise instituted this civil rights action under 42 U.S.C. § 1983 against Kootenai County, Sheriff Rocky Watson, Deputy Jack McAvoy, and Deputy David Dunkin, alleging that the defendants violated his constitutional rights during an arrest following an attempted traffic stop on October 19, 2009. Plaintiff alleges violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, but the gravamen of his complaint is that the Deputies' use of a taser in both "dart mode" and "drive-stun mode" during the arrest constituted excessive force under the Fourth Amendment.

In their motion for summary judgment, Defendants argue that no genuine dispute exists concerning whether the Deputies used excessive force during the arrest. Alternatively, Defendants argue that, even if the Court were to find a constitutional violation, the Deputies are entitled to qualified immunity and that all of Plaintiff's claims should therefore be dismissed. The parties presented oral arguments on the motion on April 16, 2013. For the reasons set forth below, the Court finds that the Deputies are entitled to qualified immunity and that Plaintiff's additional claims should be dismissed. Defendants' motion for summary judgment will be granted.


The following facts are undisputed unless otherwise indicated. It is also worth noting at the outset that Deputy McAvoy's patrol car camera was activated during the incident and Defendants submitted the video in support of their motion.

On the afternoon of October 19, 2009, Deputy McAvoy was working as an on-duty patrol deputy for the Kootenai County Sheriff's Department when he observed Plaintiff driving 35 to 40 miles per hour in a 25 mile-an-hour zone on 19th Street in Coeur d'Alene, Idaho. Deputy McAvoy pulled his vehicle behind Plaintiff's vehicle and activated his overhead emergency lights. When Plaintiff failed to yield, Deputy McAvoy activated his siren. Plaintiff again failed to yield and continued to his residence located on 17th Street.

When Plaintiff reached his driveway, he and Deputy McAvoy both got out of their vehicles and Deputy McAvoy asked Plaintiff why he did not immediately pull over. Plaintiff indicated that he was not far from his residence when Deputy McAvoy attempted to initiate the stop. Deputy McAvoy informed Plaintiff that he was being pulled over for speeding. Plaintiff disputed the allegation and became visibly agitated and confrontational. Deputy McAvoy asked Plaintiff for his licence and other information, and ordered Plaintiff to return to and remain seated in his car. Plaintiff retrieved his information but refused to stay seated in his vehicle.

Deputy McAvoy again ordered Plaintiff to sit in his car, telling Plaintiff: "I'm requesting that you sit in your car so I can do my job and do it safely, because right now you're angry enough that I don't feel safe to go in my car and do my job." (Aff. of McAvoy Ex. B, 17:07:00.) Plaintiff refused to return to his car, indicating that he did not have to because he was on his own property. Deputy McAvoy then called dispatch and requested back-up. While Deputy McAvoy waited for back-up, Plaintiff remained outside of his car, pacing around the vehicle and the driveway in an agitated manner and continued to argue with Deputy McAvoy.

After several minutes of standing in his driveway, Plaintiff indicated that he was going to enter his house and walked toward his open garage. Deputy McAvoy warned Plaintiff not to enter the garage. When Plaintiff proceeded into his garage, Deputy McAvoy took hold of Plaintiff by his jacket and placed him against the hood of Plaintiff's car, telling Plaintiff to put his hands behind his back and that he was under arrest and going to jail. Plaintiff protested and began to struggle. Deputy McAvoy then contacted dispatch for immediate assistance. Shortly thereafter, Deputy Dunkin arrived on the scene and attempted to assist Deputy McAvoy with handcuffing Plaintiff.

The above facts are largely visible on the video or can be confirmed through the audio on the DVD.*fn1

While the Deputies attempted to place Plaintiff in handcuffs, Plaintiff broke free of the Deputies' hold and ran into his garage toward the door to his residence. Deputy Dunkin removed his TASER X26 from his belt and deployed his taser in dart mode, striking Plaintiff in his lower back. Deputy Dunkin's use of his taser and the affect it had on Plaintiff cannot be seen on the video. The Deputies have both submitted affidavits claiming that the taser did not work as intended and Plaintiff continued toward the door of his residence. Plaintiff disputes this, submitting an affidavit of his own, indicating that "when the taser dart hit me, I was knocked to the ground and I was laying on my back in severe pain and incapacitat[ed] while the taser was cycled at least twice." (Dkt. 40-1.) Plaintiff's pleas to the Deputies to stop cycling the taser can be heard on the video. It is undisputed that while Plaintiff was on the ground--after being hit by the taser in dart mode--Deputy Dunkin used his taser in drive-stun mode on Plaintiff at least twice.

Plaintiff was handcuffed, brought back to the patrol car--which can be seen on the video--and the Deputies took photographs of where the taser prong struck Plaintiff. Plaintiff was arrested for Resisting and Obstructing an Officer under Idaho Code § 18-705.

Plaintiff filed a pro se complaint on October 6, 2011. (Dkt. 1.) Plaintiff thereafter retained counsel, (Notice of Appearance by Larry Purviance, Dkt. 20), and moved the Court for leave to file an amended complaint, (Dkt. 21), which was granted on April 6, 2012. (Dkt. 23.) On January 25, 2013, Defendants moved the Court for summary judgment on all of Plaintiff's claims. (Dkt. 35.) The Court heard oral arguments on the motion on April 16, 2013, and the motion is ripe for adjudication.


Defendants contend that they are entitled to summary judgment on all of Plaintiff's claims as a matter of substantive law. They also, however, raise a procedural argument concerning the timing of Plaintiff's response to the motion for summary judgment. Defendants filed their motion for summary judgment on January 25, 2013. (Dkt. 33.) Plaintiff's response to the motion was due on or before February 19, 2013, but Plaintiff did not file a response until March 12, 2013--twenty-one days after the deadline. The extra time taken to file the brief apparently was not used to work on the brief itself: the materials filed consist of a three-page brief and a short affidavit submitted by Mr. Wise. Not only is the brief exceedingly short, it fails to address all of Defendants' arguments. Moreover, the argument it does address (qualified immunity) is incomplete, which will be discussed further below.*fn2

Plaintiff did not seek an extension of time or a stipulation with opposing counsel, and Plaintiff offered no explanation for the late filing in the response brief itself.*fn3 Based on the tardiness of Plaintiff's response, Defendants request that the Court disregard the response and accompanying affidavit based upon the Court's broad discretion in supervising litigation and Fed. R. Civ. P. 16. Because the Court finds that the Deputies are entitled to qualified immunity and Plaintiff's other claims should be dismissed, the Court need not rule on this issue.

1. Summary Judgment Standard

Under Fed. R. Civ. P. 56, "[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought [and] [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the ...

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