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Escobar v. Storer

United States District Court, D. Idaho

January 27, 2015

BRANDON STORER; and DOES 1 through 10, Inclusive, Defendants.


CANDY W. DALE, Magistrate Judge.

In this civil rights action filed under 42 U.S.C. § 1983, Plaintiff Antonio Escobar alleges that Defendant Brandon Storer, a police officer with the Idaho Falls Police Department, violated Escobar's rights under the Fourth Amendment. In particular, Escobar claims he was compliant with all of Officer Storer's orders but nevertheless was arrested and maliciously prosecuted for resisting and obstructing an officer. Escobar alleges also that Officer Storer used excessive force by tasing Escobar three times during the course of the arrest.

Before the Court is Officer Storer's motion for summary judgment, (Dkt. 17), in which he seeks summary judgment on all of Escobar's claims and claims qualified immunity. For reasons explained below, the Court will grant Officer Storer's motion for summary judgment in part and deny it in part.


Escobar filed this suit on August 5, 2013, alleging three causes of action against Officer Storer under 42 U.S.C. § 1983: (1) false arrest; (2) excessive force; and (3) malicious prosecution. On June 27, 2014, Officer Storer moved for summary judgment on all of Escobar's claims. (Dkt. 17.) Escobar did not file a response to Officer Storer's motion for summary judgment within 21 days, as required by the federal rules of civil procedure and, more specifically, District of Idaho Local Civil Rule 7.1(c).

After Escobar's response deadline lapsed, the Court initiated a telephonic status conference on September 23, 2014. During that conference, Escobar's counsel explained that he was waiting to receive a notice of hearing before filing his response to the motion. The next day, the Court entered an order requiring Escobar to file a response, [1] (Dkt. 19) and, that same afternoon, Escobar complied by filing his response brief and affidavit in opposition to summary judgment. (Dkt. 20.) Officer Storer filed a reply brief on October 8, 2014. (Dkt. 21.) In addition to addressing Escobar's substantive arguments, Officer Storer's reply requests the Court to strike Escobar's response for untimeliness.

On November 3, 2014, the Court heard oral arguments on Officer Storer's motion for summary judgment. At that time, the Court took the matter under advisement and now issues this disposition.


On the evening of August 6, 2011, at approximately 9:45 p.m., Officer Storer, along with several other officers, responded to a report of a fight in progress at a Buffalo Wild Wings restaurant and bar in Idaho Falls, Idaho. (Storer Aff. ¶ 3, Dkt. 17-7 at 2.) The record does not contain any details about the fight-for instance, who instigated the fight, how many people were involved, if weapons were involved, if injuries were sustained, or if any criminal charges resulted from the fight. The record does indicate that, although Escobar was not involved in the fight, he was present at Buffalo Wild Wings at approximately the same time the fight occurred. (Escobar Depo. 86:16-25, Dkt. 17-3 at 10.) Escobar left the restaurant and headed toward his vehicle on the north side of the building.[3] When he heard police arrive, he began running because he "did not want to be around when others were being arrested." (Escobar Aff. ¶¶ 3-4, Dkt. 20-1 at 1-2.)

When the officers arrived at the southwest side of the restaurant, they immediately noticed several people in the parking lot and around the restaurant. (Storer Aff. ¶ 3, Dkt. 17-7 at 2.) The officers began speaking with various individuals to determine what had occurred inside the restaurant. ( Id. ) While the officers were speaking with potential witnesses, Officer Storer heard the restaurant's manager shout that a Hispanic male wearing a white shirt had been involved in the fight, and was running from the scene on the north side of the building.[4] ( Id. ¶ 4.)

Officer Storer proceeded to the north side of the building to look for the man in the white shirt identified by the manager. There, he observed Escobar wearing a white shirt and running to his vehicle. Once Officer Storer observed Escobar running, he shouted at Escobar to stop running. The parties agree that Escobar turned and faced Officer Storer when the officer first shouted "stop, " but they dispute what happened next.

According to Officer Storer, Escobar continued to run toward a grassy knoll after Officer Storer ordered him to stop. (Storer Aff. ¶¶ 4-5, Dkt. 17-7 at 2.) Officer Storer then "cut [Escobar] off, " drew his taser, and again ordered Escobar to stop. ( Id. ¶ 5.) At this point, Escobar stopped running. Officer Storer ordered Escobar to "get on the ground" four times and advised Escobar that he would be tased if he did not comply. ( Id. ) Escobar allegedly did not comply with these orders, so Officer Storer took control of Escobar's right arm, which was in the air, and forced Escobar to the ground. ( Id. ¶ 6.) Officer Storer then attempted to handcuff Escobar but could not get control of Escobar's left arm despite Officer Storer's orders to Escobar to surrender it. ( Id. ¶ 7.)

Officers Dax Siddoway, Dustin Cook, and Spencer Steel arrived to assist Officer Storer in physically restraining Escobar.[5] ( Id. ) Escobar continued to resist surrendering his left arm, so Officer Storer removed the probe cartridge from his taser, and applied the taser in drive-stun mode to Escobar's lower back area. ( Id. ¶ 8.) Escobar then surrendered his left arm, allowing Officer Storer to place him in handcuffs. Officer Storer reported that Escobar sustained an "abrasion to his left eye" during the struggle, but Officer Storer characterized the injury as "superficial" and one not requiring medical attention. ( Id. )

According to Escobar's account, Escobar immediately complied with Officer Storer's first order to stop, faced Officer Storer, and raised his arms in surrender. (Escobar Aff. ¶ 5, Dkt. 20-1 at 2.) Although Escobar was standing still with his arms raised, Officer Storer fired his taser in dart mode, [6] striking Escobar in the stomach.[7] ( Id. ¶ 6.) Escobar was knocked to the ground and physically subdued by the four officers, including Storer. ( Id. ¶ 7.) The officers drove Escobar's face into the asphalt, and Officer Storer, using his taser in drive-stun mode, tased Escobar twice more in the lower back.[8] ( Id. ¶ 7-8.) Escobar claims the incident resulted in injuries to his stomach, the left side of his face, and his back, [9] all of which healed within approximately one month after the incident. (Escobar Depo. 88:15-20, Dkt. 17-3 at 10.)

Escobar was arrested for resisting or obstructing an officer, a misdemeanor under Idaho Code § 18-705. He paid a $300 surety bond to be released from jail that day and later paid an attorney $500 to defend the charge against him. According to Bonneville County District Court records, the trial in Escobar's criminal case was continued several times during the fall of 2011 and the winter of 2012. (Dkt. 17-3 at 5-6.) On May 2, 2012, nearly ten months after Escobar's arrest, a state magistrate judge exonerated Escobar's surety bond and dismissed the case for reasons that do not appear in the record.


Rule 56 of the Federal Rules of Civil Procedure directs the court to "grant summary judgment if the movant shows that 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 could return a verdict for the nonmoving party.'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248).

"The moving party initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir.2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Id. "Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial." Id. "If a party... fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for the purposes of the motion." Fed.R.Civ.P. 56(e)(2).

Factual disputes that would not affect the outcome of the suit are irrelevant to the resolution of a motion for summary judgment. Anderson, 477 U.S. at 248. As to the specific facts offered by the non-moving party, the Court does not weigh conflicting evidence but draws all inferences in the light most favorable to the non-moving party. T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Likewise, direct testimony of the non-moving party, however implausible, must be believed because the Court cannot resolve credibility questions at the summary judgment stage. See Leslie v. Groupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). But, when confronted with a purely legal question, the Court does not defer to the nonmoving party.


1. Officer Storer's Request to Strike Escobar's Response as Untimely

As a preliminary matter, the Court will address Officer Storer's request to strike Escobar's response as untimely under the Court's local rules. Local Rule 7.1(c)(1) requires a responding party to serve and file a response brief within 21 days after service of a motion. Escobar did not file a response within this time period, and this issue was addressed at a status conference initiated by the Court on September 23, 2014. The Court ordered Escobar to file a response on or before October 14, 2014, after his counsel explained that he missed the response deadline because he believed the deadline was ...

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