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Moore v. City of Boise

United States District Court, D. Idaho

March 26, 2018

JIMMY C. MOORE, Plaintiff,


          B. Lynn Winmill, Chief U.S. District Court Judge

         Plaintiff, 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.)

         Having 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.


         In 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.[1] 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.)

         These remaining Defendants filed a timely Motion for Summary Judgment, which is now ripe for adjudication.[2] (Dkt. 40.)


         On 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 denied.

         A 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. 8 (1983)).

         “[C]ourts 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).

         The 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 for reconsideration.

         However, 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 decision.


         Defendants 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.

         Defendants 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.

         Defendants 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.

         Finally, 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.[3]


         Defendants seek summary judgment on Plaintiff's excessive force claims. For the reasons that follow, Defendants' Motion will be granted.

         1. Factual Background

         i. Preclusive Effect of Plaintiff's Criminal Convictions

         Before 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 Dismissal.

         Collateral 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.

         “State 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.

         In 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).

         Because 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.

         The 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 at 404.

         Therefore, 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.

         ii. Additional Undisputed Facts

         This 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.”)

         This 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.)

         These 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).

         On 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[4]; 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 Plaintiff.

         During 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.

         Muguira 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?”[5]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.

         While 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 ¶ 3.)

         As can 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.

         Throughout 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 guys?
Plaintiff: Nope. Bye.
Miller: Why would she call 911 then?
Plaintiff: She didn't.
Miller: Yes.
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.[6](Ex. B to Muguira Decl. at 2:38-2:40.)

         Plaintiff 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: Really?
Plaintiff: Yeah.
Muguira: Oh, boy.

(Ex. E to Miller Decl. at 2:46-2:58; Ex. B. to Muguira Decl. at 2:48-3:00.)

         Although 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. at 380.

         Nonetheless, 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.)

         Plaintiff 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 ...

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