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Witt v. City of Pocatello

United States District Court, D. Idaho

April 3, 2014

CODY WITT, Plaintiff,


CANDY W. DALE, Chief Magistrate Judge.

This is a lawsuit filed under 42 U.S.C. Section 1983. Plaintiff Cody Witt claims that Defendants, the City of Pocatello, the Pocatello Police Department, Officer Matthew Shutes, Officer Richard Sampson, and former Chief of Police J.R. Miller, violated Idaho law and his Fourth Amendment right to be free from unlawful seizure during his arrest on February 20, 2011.

Witt claims Officers Sampson and Shutes used excessive force to effectuate the arrest by, among other conduct, using tasers on him after Witt surrendered. With respect to the City of Pocatello, the Pocatello Police Department, and former Chief Miller (the Municipal Defendants), Witt claims they should be held liable for condoning the Officers' unconstitutional conduct, failing to properly train the Officers on the lawful use of tasers, and otherwise maintaining policies that led to the violation of Witt's constitutional rights. Defendants deny Witt's allegations and move for summary judgment on all of his claims. In addition, Defendants object to portions of Witt's statement of disputed facts.

The Court heard arguments on Defendants' motion for summary judgment and motion to strike on March 11, 2014. After considering the parties' briefing, counsels' arguments, and the record submitted on the motion, and for reasons more fully discussed below, the Court will grant in part and deny in part the motion for summary judgment.


The following facts are undisputed or, when disputed, taken in the light most favorable to Witt, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 474 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).

On the night of February 20, 2011, Officers Sampson and Shutes were separately patrolling the streets of Pocatello. At approximately 10:15 p.m. Shutes observed a parked green Cadillac, which Pocatello Police narcotics investigators previously had identified as possibly being involved in marijuana distribution. (Dkt. 51-4, Shutes Aff. ¶ 5.) Shutes continued on his patrol and later noticed the same Cadillac driving down a street. ( Id. ) Shutes radioed Sampson and advised him of the Cadillac's location and direction of travel. ( Id. )

Sampson knew that the Cadillac's registered owner, Witt, was under investigation by the Pocatello Police Department Narcotics Division for possession and delivery of marijuana. (Dkt. 54-7, Sampson Aff. ¶ 5.) Based on Shutes's directions, Sampson observed the Cadillac driving on Alameda Road and began following it. ( Id. ¶¶ 5-6.) Sampson observed the Cadillac fail to maintain its lane on two occasions, at which point he activated his overhead lights and conducted a traffic stop.[1] ( Id. ¶ 6.) The vehicle turned onto a residential street. As the Cadillac came to a stop, it drove up on the curb before pulling off the curb and stopping on the street. ( Id. ) These observations led Sampson to suspect the driver possibly was intoxicated.[2] ( Id. )

Sampson exited his patrol car and approached the Cadillac, where Witt sat in the driver's seat. ( Id. at 58:20-23.) While approaching the driver's side window, Sampson detected the odor of marijuana and observed Witt in the driver's seat with a green leafy substance loose on his lap. (Dkt. 51-7, Sampson Aff. ¶ 7.) Based on his training, Sampson recognized the substance as marijuana.[3] ( Id. ) Sampson ordered Witt to exit the vehicle, and Witt complied. ( Id. at 61:14-18.) Meanwhile, Officer Shutes arrived on the scene and witnessed the unfolding scuffle between Sampson and Witt. (Dkt. 51-4, Shutes Aff. ¶ 7.)

The Cadillac began to roll forward as Witt exited the vehicle, at which point Sampson ordered Witt to put the vehicle in park and exit. (Dkt. 51-7, Sampson Aff. ¶ 8.) Dashboard camera video of the arrest confirms that the Cadillac moved forward slightly when Witt began to step out. ( Id. at Ex. D.) Officer Shutes also observed the Cadillac roll forward, then exited his patrol car, and began to walk around Officer Sampson's patrol car toward the other two men.

According to Witt, Sampson said nothing and immediately grabbed Witt's right arm as Witt exited the vehicle.[4] (Dkt. 58-3, Witt. Depo. 61:19-24.) Feeling threatened, Witt attempted to break free from Sampson's grasp. ( Id. ) Shutes watched as Witt and Sampson momentarily grappled in the street. (Dkt. 51-4, Shutes Aff. ¶ 7.) Shutes began to run toward the altercation just as Witt slipped out of his shirt, his jacket, and Sampson's grasp. ( Id. ) Shirtless, Witt ran away from the parked vehicles for approximately 20 yards.[5] (Dkt. 58-3, Witt. Depo. 58:20-59:5.) Both Sampson and Shutes pursued on foot, commanding Witt to stop or be tased. ( Id. ) During the pursuit, the officers observed Witt throw something into a yard. (Dkt. 51-7, Sampson Aff. ¶ 10.) Witt then stopped in a driveway, raised his hands in surrender, and turned around to face the pursuing officers.[6] ( Id. )

Standing on the driveway approximately 10 feet from Witt, Shutes activated his taser in dart mode, but it was ineffective. (Dkt. 51-4, Shutes Aff. ¶ 8.) Then, Sampson, also using dart mode, fired his taser at Witt from a distance of approximately 10 feet. (Dkt. 51-7, Sampson Aff. ¶¶ 10-11.) The taser darts struck Witt on the left forearm near the elbow and on the left thigh-a so-called "dual hemisphere hit." ( Id. ¶ 11.) Sampson delivered a four-second taser cycle to Witt, causing complete neuromuscular incapacitation. ( Id. ¶¶ 12-13.) Before either officer could reach him, Witt fell backward and struck his head on the concrete driveway. ( Id. ¶ 12.)

According to Witt, one or both of the officers delivered several additional blows to Witt's head after he fell.[7] (Dkt. 58-3, Witt. Depo. 64:19-23.) Witt rolled onto his chest, covered his face from the blows, and lost consciousness shortly thereafter. ( Id. 65:2-14.) Witt regained consciousness as he was being handcuffed. ( Id. 65:15.) Sampson advised Witt that he was under arrest, called for an ambulance, inspected Witt, and observed blood flowing from an area near Witt's left ear. (Dkt. 51-7, Sampson Aff. ¶ 13.) Police photos of the scene show Witt on his back with blood on the left side on his face and a pool of blood to the right of his head, suggesting that Witt was initially on his chest and later rolled onto his back. (Dkt. 58-6 at 7-8.) Officer Sampson's report also indicates that Witt was handcuffed while lying on his chest. (Dkt. 51-8 at 7-8.) The two officers and Witt were the only people to witness these events.

An ambulance arrived on the scene at 10:26 p.m., four minutes after Sampson pulled over Witt. (Dkt. 51-7, Sampson Aff. Ex. D.) Witt, lapsing in and out of consciousness, was placed on a stretcher and was taken by ambulance to the hospital. (Dkt. 58-3, Witt. Depo. 65:16-21.) According to Officer Sampson's report, emergency room staff determined Witt had internal bleeding between his skull and the membrane around his brain. (Dkt. 51-8 at 2.) Due to this condition Witt was transported from the Portneuf Medical Center emergency room in Pocatello to the Eastern Idaho Regional Medical Center in Idaho Falls. ( Id. ) Other than Sampson's report, the record contains no evidence of the nature of Witt's injuries or what medical treatment he received.

After Witt was transported to the hospital, the officers surveyed the scene. They recovered $330.00 in cash and a quantity of marijuana from the driver's side floor of Witt's car. (Dkt. 51-4, Shutes Aff. ¶ 10.) They also found 17 pills scattered between the traffic stop and the driveway, as well as a plastic bag containing white residue in the yard adjacent to the driveway.[8] (Dkt. 51-7, Sampson Aff. ¶ 16.) Sampson later determined the residue and pills were methadone. (Dkt. 51-8 at 9-10.) Following his arrest, Witt was charged with possession of marijuana, resisting or obstructing officers, possession of methadone, and destruction or concealment of evidence. (Dkt. 51-3.) He later pled guilty to possession of marijuana, and the remaining counts were dismissed by motion of the prosecutor. ( Id. )

The Pocatello Police Department has policies and procedures for the use of force by its officers. The use of force policy is attached to the affidavits of Officers Shutes and Sampson. (Dkt. 51-6; 51-11.) In addition, the Pocatello Police Department has adopted policies and procedures governing the use of tasers. The taser policy is attached to the affidavit of Officer Sampson. (Dkt. 51-10.) In general, both policies require officers to use reasonable force based on their assessment of the totality of the circumstances.

The taser policy requires that officers be properly trained and authorized before carrying or using a taser. The taser policy also recommends a verbal warning before using the taser. Further, the policy cautions against using a taser on "[i]ndividuals whose position or activity may result in collateral injury (e.g. falls from height, operating vehicles)" unless the totality of the circumstances leads the officer to reasonably believe the risk of using the taser is outweighed by other factors. ( Id. at § 309.4.3.)

On February 20, 2011, both Officers Sampson and Shutes were current on their training and certifications. (Dkt. 51-4, Shutes Aff. ¶ 2; Dkt. 51-7, Sampson Aff. ¶ 2.) At the time of the incident, Sampson had served on the Pocatello Police Department for 11 years and Shutes had served for 10 years. ( Id. ) Shutes was up to date on his taser training. (Dkt. 51-4, Shutes Aff. ¶ 3.) Sampson was also up to date on his taser training, and was certified to instruct others on taser use. (Dkt. 51-7, Sampson Aff. ¶ 3.) Both officers were specifically trained on the Pocatello Police Department's policies and procedures for taser use and the appropriate use of force. (Dkt. 51-4, Shutes Aff. ¶ 4; Dkt. 51-7, Sampson Aff. ¶ 4.)

Based on these facts, Witt brings suit under 42 U.S.C. § 1983, claiming Defendants acted under color of law in violation of his Fourth Amendment right to be free from unlawful seizure. (Dkt. 1 ¶ 39.) In addition, Witt brings a variety of pendent state law claims sounding in tort: assault, battery, false arrest, excessive force, negligent and intentional infliction of emotional distress, conspiracy, negligence, and gross negligence. ( Id. ¶¶ 41-43.) Defendants seek summary judgment on all of Witt's claims. In connection with the motion for summary judgment, the Court also received Witt's opposition to the motion for summary judgment (Dkt. 58), Defendants' motion to strike portions of Witt's statement of facts (Dkt. 59), and Defendants' reply in support of summary judgment (Dkt. 61). Witt has not responded to the motion to strike. Having heard oral argument on all pending motions on March 11, 2014, this matter is now ripe for the Court's review and decision.


In a bare-bones filing, Defendants object to paragraphs 12 and 13 from Witt's Statement of Disputed Facts, (Dkt. 58-1), filed in opposition to Defendants motion for summary for summary judgment. (Dkt. 59.)The disputed paragraphs read as follows:

12. The police officers failed to follow the departmental policies found in its Policy Manual including but not limited to its guidelines on verbal and visual warnings, factors to determine reasonableness of force and application of the taser restricting the use of the taser on individuals including Witt. (Morrissey Dec., Exh, "6").
13. Pocatello Police Department failed to properly train its officers in established Ninth Circuit Case Law and taught its officers to ignore established law concerning "quantum of force" and avoiding all reference to such law and instead strictly adhering to the more flexible "objective reasonableness" standard preferred by law enforcement. (Morrissey Dec., Exh, "7").

(Dkt. 58-1 at 3.) Defendants argue-without citing any authority-that these paragraphs contain impermissible legal arguments and offer exhibits without proper foundation. To date, Witt has not responded to the motion to strike.

With only Defendants' vacuous showing, the Court is left to search out the legal basis for Defendants' requested relief. Rule 56(c)(2) permits evidentiary objections to materials cited to support or dispute a fact at issue in a motion for summary judgment.[9] Defendants' objections to the exhibits appear grounded on Rule 402 of the Federal Rules of Evidence, which states that "[i]rrelevant evidence is not admissible." Defendants' objections to the paragraphs themselves appear grounded on the rule that conclusory opinions are not admissible if they merely tell the trier of fact what result to reach. See U.S. v. Crawford, 239 F.3d 1086, 1090 (9th Cir. 2001); see also Fed. R. Ev. 704, 1972 Advisory Committee Notes (Rules 701, 702, and 403 "afford ample assurances against the admission of opinions which would merely tell the jury what result to reach.")

Paragraphs 12 and 13 both state conclusions rather than disputed facts. Paragraph 12 asserts "[t]he police officers failed to follow the departmental polices...." (Dkt. 58-1 at 3.) And Paragraph 13 claims the "Pocatello Police Department failed to properly train its officers in established Ninth Circuit case law...." ( Id. ) Both statements tell the reader what legal conclusion to reach based on Witt's version of the facts-the officers failed to follow polices and the department failed to properly train the officers. Furthermore, Witt does not provide adequate foundation to establish the relevance of the memorandum referenced as Exhibit 7 in Paragraph 13.[10] Accordingly, the Court will sustain in part Defendants' objections and will not consider Paragraph 12, Paragraph 13, or the exhibit referenced in Paragraph 13.


Defendants seek summary judgment on all of Witt's claims. Rule 56 directs the court to "grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Critically, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A dispute about a material fact is genuine if the evidence is such that a reasonable jury ...

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