United States District Court, D. Idaho
JIMMY C. MOORE, Plaintiff,
CITY OF BOISE; BOISE CITY POLICE DEPARTMENT; DAN MUGUIRA; TAD MILLER; and JESSICA BOVARD, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief U.S. District Court Judge
a prisoner in the custody of the Idaho Department of
Correction, is proceeding pro se and in forma pauperis in
this civil rights action. Now pending before the Court in
this civil rights matter is a Motion for Summary Judgment
filed by Defendants Muguira, Miller, and Bovard, the only
remaining Defendants. (Dkt. 40.)
fully reviewed the record, the Court finds that the facts and
legal arguments are adequately presented in the briefs and
record and that oral argument is unnecessary. See D.
Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the
following Order granting Defendants' Motion and
dismissing this case with prejudice.
August 2016, Plaintiff filed this action pursuant to 42
U.S.C. § 1983, alleging excessive force and medical
treatment claims against the City of Boise and the Boise
Police Department, as well as two police officers and a
community service officer, stemming from Plaintiff's
arrest for domestic violence. On initial review of
Plaintiff's Complaint pursuant to 28 U.S.C. §§
1915 and 1915A, the Court dismissed Plaintiff's medical
treatment claims, as well as his excessive force claims
against the City of Boise and the Boise Police Department,
but allowed Plaintiff to proceed on his excessive force
claims against Officer Dan Muguira, Officer Tad Miller, and
Community Service Officer Jessica Bovard. (Initial Review
Order, Dkt. 9.)
remaining Defendants filed a timely Motion for Summary
Judgment, which is now ripe for adjudication. (Dkt. 40.)
OBJECTION TO JANUARY 5, 2018 ORDER
January 5, 2018, this Court ordered Plaintiff to submit to
Defendants the documents identified as Exhibits 2 through 20
and 22 to Plaintiff's opposition to Defendants'
Motion for Summary Judgment. (Dkt. 68.) Plaintiff has now
done so, but he has also objected to the Order. (See
Dkt. 70.) The Court construes the objection as a request for
reconsideration of the Court's Order requiring Plaintiff
to submit the documents to Defendants and allowing Defendants
to review those documents. So construed, the request will be
federal court has the “inherent procedural power to
reconsider, rescind, or modify an interlocutory order for
cause seen by it to be sufficient.” City of Los
Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885
(9th Cir. 2001) (internal quotation marks and emphasis
omitted). Although courts have the authority to reconsider
prior orders, they “should be loath to do so in the
absence of extraordinary circumstances such as where the
initial decision was ‘clearly erroneous and would work
a manifest injustice.'” Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 817 (1988)
(quoting Arizona v. California, 460 U.S. 605, 618 n.
have distilled various grounds for reconsideration of prior
rulings into three major grounds for justifying
reconsideration: (1) an intervening change in controlling
law; (2) the availability of new evidence or an expanded
factual record; and (3) need to correct a clear error or to
prevent manifest injustice.” Gray v. Carlin,
No. 3:11-CV-00275-EJL, 2015 WL 75263, at *2 (D. Idaho Jan. 6,
2015) (internal quotation marks omitted). However, a motion
for reconsideration of an interlocutory order should not be
used “as a vehicle to identify facts or raise legal
arguments which could have been, but were not, raised or
adduced during the pendency of the motion of which
reconsideration was sought.” Jones v. Casey's
Gen. Stores, 551 F.Supp.2d 848, 854-55 (S.D. Iowa 2008)
(internal quotation marks omitted).
Court does not find sufficient cause to reconsider its
January 5, 2018 Order. Plaintiff was required to provide his
evidence to Defendants, and that is what the Order instructed
him to do. Given that Plaintiff had not provided a copy of
the exhibits to Defendants, Defendants naturally were allowed
to review them and, if they deemed it warranted, to object to
them. Therefore, the Court will deny Plaintiff's request
the Court has reviewed the portions of the transcripts from
Plaintiff's criminal trial, which he has submitted as
exhibits. (See Dkt. 70 at 7.) (Court staff had
previously been unable to locate these documents but has
since found them.) Plaintiff offers the transcripts to call
into question some of Defendants' allegations in their
Statement of Material Facts. Where Plaintiff's assertions
or the transcripts differ from Defendants' factual
allegations in this action so as to constitute a genuine
dispute of material fact, the Court will accept
Plaintiff's version of events for purposes of this
OBJECTIONS TO PLAINTIFF'S EXHIBITS IN OPPOSITION TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
object (Dkt. 71) to some of Plaintiff's exhibits on
various grounds. See Fed. R. Civ. P. 56(c). First,
Defendants correctly note that a document entitled
“Glen Dowdle - Upstairs Neighbor - Interview” is
not an affidavit or declaration, it is not sworn, and it is
not signed. (See Dkt. 70, document identified as
“Exhibit A.”) It does not indicate the author of
the document, nor does it contain any statement that it is
based on personal knowledge. Thus, this document is
inadmissible pursuant to Rule 56(c)(4) and will not be
considered by the Court.
next object to the Affidavit of Ryan Tone, of which the Court
has two handwritten copies in different handwriting; one of
the affidavits appears to be in Plaintiff's handwriting
and the Court presumes the other to be in Tone's
handwriting. (See Dkts. 47 & 70.) Because
Defendants were provided only with the copy presumably
written by Tone (Ex. to Dkt. 70), that is the copy to which
the Court refers throughout this decision.
are correct that the statements Mr. Tone says he overheard,
to the extent those statements are offered for the truth of
the matter asserted and were spoken by individuals other than
Defendants, are inadmissible hearsay. See Fed. R.
Evid. 801(c), (d)(2). Further, the events described by Tone
occurring before Defendants arrived at Plaintiff's
apartment are irrelevant. However, the Tone Affidavit does
contain some relevant information, and Mr. Tone's
personal observations are admissible. Thus, the Court will
consider the admissible portions of the Tone affidavit in
resolving Defendants' Motion.
Defendants object to medical records of the victim of the
crime for which Plaintiff was arrested and convicted. These
records are irrelevant to whether Defendants used excessive
force in arresting Plaintiff and, therefore, are
inadmissible. See Fed. R. Evid. 402.
MOTION FOR SUMMARY JUDGMENT
seek summary judgment on Plaintiff's excessive force
claims. For the reasons that follow, Defendants' Motion
will be granted.
Preclusive Effect of Plaintiff's Criminal
the Court sets forth the facts of this case, it must consider
whether and to what extent Plaintiff's criminal
convictions constrain the evidence the Court can review in
resolving Defendants' Motion for Partial Summary
estoppel, also known as issue preclusion, refers to the
preclusive effect of previous litigation. The doctrine of
collateral estoppel prohibits a party from relitigating an
issue that the party has previously litigated unsuccessfully
in another action.
law governs the application of collateral estoppel or issue
preclusion to a state court judgment in a federal civil
rights action.” Ayers v. City of Richmond, 895
F.2d 1267, 1270 (9th Cir. 1990). Thus, to determine the
preclusive effect of Plaintiff's criminal convictions,
the Court looks to Idaho law.
Idaho, “five factors must be evident in order for
collateral estoppel to bar the relitigation of an issue
determined in a prior proceeding”:
(1) the party against whom the earlier decision was asserted
had a full and fair opportunity to litigate the issue decided
in the earlier case; (2) the issue decided in the prior
litigation was identical to the issue presented in the
present action; (3) the issue sought to be precluded was
actually decided in the prior litigation; (4) there was a
final judgment on the merits in the prior litigation; and (5)
the party against whom the issue is asserted was a party or
in privity with a party to the litigation.
See Rodriguez v. Dep't of Correction, 29 P.3d
401, 404 (2001).
Plaintiff was convicted of domestic battery and resisting
arrest, two issues relevant to the instant civil rights
action were litigated during Plaintiff's state criminal
case: (1) whether Plaintiff committed a serious felony crime
(domestic battery); and (2) whether Plaintiff resisted
arrest. See Davis v. City of Las Vegas, 478 F.3d
1048, 1054 (9th Cir. 2007) (stating that factors in an
excessive force inquiry include the seriousness of the
offense for which the plaintiff was arrested and whether the
plaintiff resisted arrest). Both were serious charges-the
domestic battery charge especially-giving Plaintiff the
motivation to fully litigate the charges, and Plaintiff's
convictions have not been invalidated or otherwise called
into question. See Ayers, 895 F.2d at 1271 (stating
that, under California law, collateral estoppel requires that
“the prior conviction must have been for a serious
offense so that the defendant was motivated to fully litigate
the charges ... [and] there must have been a full and fair
trial to prevent convictions of doubtful validity from being
used”). Therefore, the first element of collateral
estoppel is satisfied with respect to both issues: Plaintiff
had a full and fair opportunity to litigate whether he
battered Patsey and whether he resisted arrest. See
Rodriguez, 29 P.3d at 404.
second and third elements of collateral estoppel are also met
in this case. The issues of Plaintiff's battery of Patsey
and his actions in resisting arrest both factor into the
Court's Fourth Amendment analysis, and the jury actually
had to decide both of these questions. With respect to the
resisting charge specifically, the jury's guilty verdict
establishes that Plaintiff “wilfully resist[ed],
delay[ed], or obstruct[ed]” the officers “in the
discharge ... of [the officers'] duty.” Idaho Code
§ 18-705. Finally, the fourth and fifth elements of
collateral estoppel have been satisfied because
Plaintiff's conviction is the result of a final state
court judgment and because Plaintiff was the same person
convicted in that judgment. See Rodriguez, 29 P.3d
to the extent any evidence submitted by any party tends to
suggest either that (1) Plaintiff did not commit domestic
battery against Patsey or (2) Plaintiff did not resist
arrest, such evidence will be disregarded. The fact that
Plaintiff battered Patsey and resisted arrest for that
offense will, therefore, be treated as undisputed.
Additional Undisputed Facts
section includes facts that are undisputed and material to
the resolution of the issues in this case. Where material
facts are genuinely in dispute, the Court has included
Plaintiff's version of facts, insofar as that version is
not contradicted by clear documentary evidence in the record,
such as the officers' audio recordings of the arrest.
See Scott v. Harris, 550 U.S. 372, 380 (2007)
(“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.”)
section also includes facts that are deemed undisputed
pursuant to Federal Rule of Civil Procedure 56(e)(2), which
states, “If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact as required by Rule 56(c), the
court may ... consider the fact undisputed for purposes of
the motion.” In response to Defendants' Statement
of Material Facts (Dkt. 40-1), Plaintiff specifically
disputes only a few of those facts, which the Court will note
in the following factual recitation. (See Dkt. 47 at
3-20.) With respect to the majority of Defendants'
Statement of Material Facts, however, Plaintiff states in
general that he “disagrees” with a particular
fact, that the information is “highly
inflammatory” and an “attack on Plaintiff's
character, ” and that the fact is not relevant. (Dkt.
47 at 4-13.) Additionally, Plaintiff states frequently, and
overly generally, that an assertion made by Defendants is
“an issue of material fact.” (Id.)
objections are not sufficient to properly address the facts
as set forth by Defendants or otherwise to constitute genuine
disputes of material fact. Therefore, as to any of the facts
set forth by Defendants to which Plaintiff objects on only
these generalized bases and does not submit his own factual
allegations to the contrary (see, e.g., Pl. Decl.,
Dkt. 47-1), the Court will consider such facts undisputed.
See Fed. R. Civ. P. 56(e)(2).
November 29, 2014, Officers Dan Muguira and Tad Miller of the
Boise Police Department were dispatched to Plaintiff's
and his wife's apartment after “Ada County Dispatch
advised that they had an open line from the 911 caller's
phone and could hear a man yelling in the background.”
(Def. Stmt. of Material Facts (“SOMF”), Dkt.
40-1, at ¶ 1.) The officers knocked on the door and
announced themselves; Plaintiff's wife, Patsey Powell,
opened the door. (Dkt. 47 at 4.) Though Patsey first told the
officers to “go away”-which can be heard in the
officers' audio recordings of the incident (see
Ex. E to Miller Decl., Dkt. 40-4, at 0:09; Ex. B to Muguira
Decl., Dkt. 40-5, at 0:11)-she also “gestured for
Officer Miller to enter the residence.” (SOMF at ¶
1.) The officers noticed that Patsey had “a heavily
bruised left eye” that was “severely
swollen.” (Miller Decl. at ¶ 2; Muguira Decl. at
¶ 3.) Patsey then stepped outside to speak with Officer
Muguira, while Miller entered the apartment to speak with
Muguira's outside interview with Patsey, he saw that
Patsey “had blood coming out of her nose and dried
blood on her mouth.” (SOMF ¶ 4.) She told Muguira
“that her injuries were the result of being punched in
the face” by Plaintiff. (Id.) Patsey stated
that Plaintiff had been drinking. (Ex. B to Muguira Decl. at
1:24-1:26.) Patsey reported that she did not remember
everything about the assault because she had blacked out
partway through it.
observed to Patsey that, from the pattern of her bruises, it
appeared Plaintiff “obviously ... punched you in the
eye, and he punched you in the mouth, and it looks he punched
you in the nose, so there's at least three that I'm
counting. Any more?”Patsey responded with an unintelligible
sound; Muguira then said, “Okay.” (Id.
at 1:58-2:09.) Ryan Tone contends in his affidavit that when
Muguira noted it looked like Plaintiff had hit Patsey three
times, Patsey corrected Muguira and said “that it was
only once.” (Tone Aff. at ¶ 5.) The Court does not
accept Tone's contention for purposes of summary judgment
because it is blatantly contradicted by the audio recording;
whatever Patsey said, it was certainly not anything to the
effect that she had been hit only once. See Scott,
550 U.S. at 380. As noted previously, Patsey passed out
during the incident and thus could not remember the entire
beating-which would include how many times she was punched.
Muguira spoke to Patsey outside, Officer Miller entered the
apartment to speak with Plaintiff, who was sitting in a
recliner. Miller observed that Plaintiff's eyes were
glassy and bloodshot, that Plaintiff was slurring his speech,
and that a strong odor of alcohol was present. (SOMF at
¶ 3.) Plaintiff told Miller several times to leave the
apartment, which Miller refused to do. Miller began
questioning Plaintiff about his wife's bruises, telling
Plaintiff that Miller was investigating a domestic
disturbance, that Patsey had invited the officers into the
apartment, and that the officers were not leaving until they
found out what happened to Patsey. (Miller Decl. at ¶
be heard in Miller's audio recording of this interview,
Plaintiff then told Miller, “Now, if I have to get up,
I'm sure you're gonna drop me, but-bye!” (Ex. E
to Miller Decl. at 1:47-1:53.) Muguira, who at the time was
speaking with Patsey, heard this statement and interpreted it
as a threat-that “if [Plaintiff] had to get up, he was
going to fight.” (Muguira Decl. at ¶ 4.) Though
Plaintiff maintains this was not his intention in making the
statement (Dkt. 47 at 7), it was not unreasonable for Muguira
to interpret Plaintiff's ambiguous statement in the
manner he did.
the early portion of Miller's interview, Plaintiff was
speaking loudly, which progressed fairly quickly to shouting:
Miller: Jimmy, she's got injuries all over her face, what
happened to her face? I just-if you could just tell me
what's going on here, did anything happen between you
Plaintiff: Nope. Bye.
Miller: Why would she call 911 then?
Plaintiff: She didn't.
Plaintiff: Not from my phone.
Miller: She called from some phone.
Plaintiff: Not from mine. Bye.
Miller: We had, we had an open line.
Plaintiff: Bye! Bye! Get outta my apartment! Now!
Miller: Hey, relax. Relax.
Plaintiff: Get outta my apartment!
(Ex. E to Miller Decl. at 1:59-2:23.) The Court notes that,
from the audio recordings, it sounds as if Plaintiff was
inebriated. Plaintiff again told Miller to leave the
apartment, at which point Officer Muguira came inside and
informed Plaintiff he was under arrest.(Ex. B to Muguira
Decl. at 2:38-2:40.)
had had surgery on his right shoulder approximately six or
seven weeks earlier and, while Muguira was placing him in
handcuffs, alluded to this shoulder injury:
Plaintiff: Ah, I just got that shoulder repaired.
Muguira: It's obviously strong enough to hit women.
Plaintiff: I don't hit nobody.
Muguira: Oh, boy.
(Ex. E to Miller Decl. at 2:46-2:58; Ex. B. to Muguira Decl.
Plaintiff states that Muguira “wrench[ed]”
Plaintiff's right arm behind his back while placing him
in handcuffs and that Plaintiff felt his surgical shoulder
repair “come undone” (Dkt. 47 at 2), Officers
Miller and Muguira both state that Muguira did not pull on
Plaintiff's arm and that Plaintiff did not indicate that
the handcuffing hurt his shoulder. (Miller Decl. at ¶ 4;
Muguira Decl. at ¶ 4). The officers' statements are
corroborated by the audio recordings, in which no sounds of
discomfort, pain or any other objection or disturbance can be
heard at this point, other than Plaintiff's single
reference to the fact that he had previously had his shoulder
repaired. (Ex. E to Miller Decl. at 2:37-2:53; Ex. B to
Muguira Decl. at 2:39-2:55.) Further, though Plaintiff claims
that he told Muguira, “Please be careful with [my]
shoulder” (Dkt. 47 at 2; Compl. at 11), that contention
is blatantly contradicted by the audio recording, which does
not include any such statement. See Scott, 550 U.S.
the Court accepts, for purposes of this decision, that
Muguira applied at least some quantity of pressure to
Plaintiff's arm or shoulder in order to place Plaintiff
in handcuffs, and that the pressure was painful and resulted
in further injury to Plaintiff's shoulder. Muguira states
that, in handcuffing Plaintiff, he used “only the
amount of force necessary to effectuate the arrest.”
(Muguira Decl. at ¶ 8.)
can be heard quasi-singing, “Here we go again, ”
after Muguira placed him in handcuffs and began to take him
out of the apartment; Muguira told Plaintiff to “stop
flexing, ” which Plaintiff denied he was doing, and
Plaintiff and Muguira disagreed about this several times.
(Ex. B to Muguira Decl. at 3:03-3:12 (“Yes, you are,
” “No, I'm not, ” etc.).) From the