1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Feb 19, 2026 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 JOHN MICHAEL HAYS, NO. 2:23-CV-0141-TOR 8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION FOR SUMMARY JUDGMENT 10 DEPUTY JOSEPH ADAMS, et al.,
11 Defendants. 12 BEFORE THE COURT is Defendant’s Motion for Summary Judgment 13 (ECF No. 33). This matter was submitted for consideration without oral argument. 14 The Court has reviewed the record and files herein and is fully informed. For the 15 reasons discussed below, Defendant’s Motion for Summary Judgement (ECF No. 16 33) is GRANTED. 17 BACKGROUND 18 The undisputed facts are as follows. On the evening of April 24, 2021, 19 Plaintiff and his girlfriend Victoria Collier (“Collier”) were at a pool tournament. 20 ECF No. 34 at ¶ 6. The couple proceeded to get into an argument, and Plaintiff 1 returned to the couples’ shared residence alone where Plaintiff consumed alcohol 2 and took an Ambien to help him sleep. ECF Nos. 34 at ¶ 7, 37-1 at ¶¶ 6,7. Collier
3 returned to the house several hours later with a friend, Jenny Slater (“Slater), and 4 Collier’s daughter, Summer Castro (“Castro”). ECF No. 37-1 at ¶¶ 9,10. Once 5 Collier entered the house, she was confronted by Plaintiff who told her to “get the
6 fuck out” of the house. ECF No. 34 at ¶¶ 8,9. The couple began fighting, and 7 Plaintiff pushed Collier and threw a cell phone striking Collier in the head causing 8 her to bleed. Id. at ¶ 10; ECF No. 1-1 at ¶ 4.3. Slater, who remained outside the 9 house during this time, called 911 to report the domestic dispute and her
10 observation that Plaintiff had threatened to kill Collier and that Collier was 11 bleeding from the head after she left the house. Id. at ¶¶ 12,13. Slater also 12 reported that Plaintiff might be armed. ECF No. 1-1 at ¶ 4.4.
13 Deputy Joseph Adams was dispatched to the residence and after 14 interviewing Slater, Collier, and Castro, determined probable cause existed to 15 arrest Plaintiff on charges of assault and domestic violence. ECF No. 34 at ¶ 15. 16 Defendant Deputy Amber Tyler and her police dog, Jäger, arrived on scene shortly
17 after along with several other deputies. ECF No. 1-1 at ¶¶ 4.10-4.16. At that time, 18 Plaintiff was still in the residence. Deputies spent the next hour and a half outside 19 the house attempting to get Plaintiff to surrender peacefully including knocking on
20 the walls of the house, calling Plaintiff’s cell phone fifty-six times, and making 1 several public address (“PA”) announcements. ECF Nos. 34 at 16, 1-1 at ¶ 4.15. 2 Plaintiff did not respond or comply with the deputies’ orders to surrender. ECF
3 No. 1-1 at ¶ 4.17. 4 Deputy Adams eventually obtained a search warrant and the deputies were 5 able to unlock the front door using a key from Collier. Id. at ¶ 4.17. Once the door
6 was open, Deputy Adams announced, “Sheriff’s Office, search warrant, come to 7 the door” three times. Id. Defendant also gave four announcements that if 8 Plaintiff did not come to the door, a police dog would be sent in to search the 9 house and would bite Plaintiff if found. Id.; ECF No. 34 at ¶ 19. After Plaintiff
10 did not respond or surrender, deputies entered the house while still uncertain if 11 Plaintiff had a weapon. ECF No. 1-1 at ¶ 4.19. 12 Deputies eventually located Plaintiff in an open attic access hatch in the
13 ceiling of a small closet. ECF No. 34 at ¶ 21. Only Plaintiff’s legs were visible to 14 the deputies. ECF No. 1-1 at ¶ 4.20. Plaintiff was ordered five separate times to 15 show his hands and Defendant again warned that he would be bit by the police dog 16 if Plaintiff did not comply. Id. at ¶¶ 4.20, 4.21. After not responding or
17 complying, Deputy Adams and another deputy, Deputy Blaakman, each grabbed a 18 hold of Plaintiff’s legs and attempted to pull him from the attic. Id. at ¶ 4.22. 19 Believing that Plaintiff continued to resist arrest, Deputy Adams administered two
20 pain compliance strikes to Plaintiff’s ribs. ECF Nos. 1-1 at ¶ 4.22, 34 at ¶¶ 26,27. 1 After the compliance strikes proved ineffective, Defendant then deployed Jäger to 2 execute a targeted bite and hold on Plaintiff’s calf which was effective. ECF Nos.
3 1-1 at ¶ 4.25, 34 at ¶ 28. Deputies were able to then pull Plaintiff down from the 4 attic. Once on the ground, one deputy thrust a knee into the back of Plaintiff’s 5 neck while another deputy kneed him in the chest and wrestled his arm under
6 control. ECF No. 37-1 at ¶¶ 29,34. Defendant ordered Jäger to release the bite 7 once deputies had a hold of Plaintiff’s hands. ECF Nos. 1-1 at ¶¶ 4.25, 4.26, 34 at 8 ¶ 29. In total, Jäger bit Plaintiff for around thirty seconds. ECF No. 37-1 at ¶ 38. 9 After Plaintiff was arrested, he was transported to the emergency room to receive
10 treatment for the bite. ECF No. 1-1 at ¶ 4.31. Plaintiff did not have a weapon at 11 the time of his arrest. Id. at ¶ 4.33 12 Plaintiff originally filed his complaint with the Spokane County Superior
13 Court on April 24, 2023, alleging seven different causes of action against twelve 14 individual defendants. ECF No. 1-1 at 6. Defendants subsequently removed the 15 case to this Court on May 9, 2023. ECF No. 1. On November 24, 2025, the 16 parties filed a Stipulation of Dismissal of Certain Claims and Cross-Claims (ECF
17 No. 32) dismissing all of Plaintiff’s claims against all Defendants other than (1) 18 Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment excessive force claim brought 19 against Amber Tyler in her individual capacity; and (2) Plaintiff’s common law
20 negligence and common law intentional tort claims brought against Amber Tyler 1 personally. ECF No. 32. In return, Defendants stipulated to a dismissal of their 2 cross-claim under RCW 4.24.350 for malicious prosecution in its entirety. Id.
3 Defendant Amber Tyler now moves for summary judgment as to the three 4 remaining claims. ECF No. 33. 5 DISCUSSION
6 As an initial matter, pursuant to the parties Stipulation of Dismissal (ECF 7 No. 32), all of Plaintiff’s claims against all Defendants are DISMISSED with 8 prejudice other than (1) Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment excessive 9 force claim brought against Defendant Amber Tyler in her individual capacity; and
10 (2) Plaintiff’s common law negligence and common law intentional tort claims 11 brought against Defendant Amber Tyler personally. ECF No. 32. Additionally, 12 Defendants’ cross-claim under RCW 4.24.350 for malicious prosecution is
13 DISMISSED with prejudice in its entirety. Id. 14 SUMMARY JUDGMENT STANDARD 15 The Court may grant summary judgment in favor of a moving party who 16 demonstrates “that there is no genuine dispute as to any material fact and that the
17 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling 18 on a motion for summary judgment, the Court must only consider admissible 19 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
20 The party moving for summary judgment bears the initial burden of showing the 1 absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 2 317, 323 (1986). The burden then shifts to the non-moving party to identify
3 specific facts showing there is a genuine issue of material fact. See Anderson v. 4 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla 5 of evidence in support of the plaintiff’s position will be insufficient; there must be
6 evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. 7 For purposes of summary judgment, a fact is “material” if it might affect the 8 outcome of the suit under the governing law. Anderson, 477 U.S. at 248. Further, 9 a material fact is “genuine” only where the evidence is such that a reasonable jury
10 could find in favor of the non-moving party. Id. Summary judgment will thus be 11 granted “against a party who fails to make a showing sufficient to establish the 12 existence of an element essential to that party’s case, and on which that party will
13 bear the burden of proof at trial.” Celotex, 477 U.S. at 322. In ruling on a 14 summary judgment motion, a court must construe the facts, as well as all rational 15 inferences therefrom, in the light most favorable to the non-moving party. Scott v. 16 Harris, 550 U.S. 372, 378 (2007).
17 A. Judicial Admissions 18 Defendant argues that certain facts Plaintiff puts forth in his response brief 19 are contradicted by the facts in his verified complaint. ECF No. 38 at 4-5. For
20 example, Plaintiff asserts in his response that Jäger was permitted to bite him even 1 after he had been handcuffed (ECF No. 37 at 9) whereas in his complaint Plaintiff 2 states that the bite was released “after the arresting officers had grabbed hold of his
3 arms.” ECF No. 1-1 at ¶ 4.26. Defendant also points to Plaintiff’s argument in his 4 response brief that once “officers entered the home, there is no objective evidence 5 supporting the belief that Hays had a gun or was armed” (ECF No. 37 at 11) as
6 contradicting the facts of complaint stating that a friend of Collier’s reported to 7 officers in the 911 call that Plaintiff might have been armed (ECF No. 1-1 at ¶ 4.4). 8 ECF No. 38 at 4-5. Defendant argues that as judicial admissions, Plaintiff is bound 9 by the facts put forth in his verified complaint. Id. The Court agrees.
10 “Factual assertions in pleadings and pretrial orders, unless amended, are 11 considered judicial admissions conclusively binding on the party who made them.” 12 American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
13 Statements contained in a complaint are judicial admissions. Id. Plaintiff never 14 moved to amend his complaint or even address these factual discrepancies despite 15 Defendant’s notice in the summary judgment motion that she intended to rely on 16 the facts of Plaintiff’s complaint. ECF No. 33 at 5 n.1. Therefore, the facts of
17 Plaintiff’s complaint (ECF No. 1-1) are binding judicial admissions. 18 B. Qualified Immunity 19 Defendant Amber Tyler (hereinafter “Defendant”) asserts that Plaintiff’s
20 Fourth Amendment excessive force claim fails under the doctrine of qualified 1 immunity. ECF No. 33 at 8-16. 2 Qualified immunity shields government actors from civil damages unless
3 their conduct violates “clearly established statutory or constitutional rights of 4 which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 5 223, 231 (2009). In evaluating a state actor’s assertion of qualified immunity, a
6 court must determine: (1) whether the facts, viewed in the light most favorable to 7 the plaintiff, show that the defendant's conduct violated a constitutional right; and 8 (2) whether the right was clearly established at the time of the alleged violation 9 such that a reasonable person in the defendant’s position would have understood
10 that his actions violated that right. See Saucier v. Katz, 533 U.S. 194, 201-02 11 (2001) (receded from in Pearson, 555 U.S. 223 (holding that while Saucier’s two 12 step sequence for resolving government official’s qualified immunity claims is
13 often appropriate, courts may exercise their sound discretion in deciding which of 14 the two prongs should be addressed first)). If the answer to either inquiry is “no,” 15 then the defendant is entitled to qualified immunity and may not be held personally 16 liable for his or her conduct. Glenn v. Washington Cnty., 673 F.3d 864, 870 (9th
17 Cir. 2011). 18 The second prong of the Saucier analysis must be “undertaken in light of the 19 specific context of the case, not as a broad general proposition.” Mullenix v. Luna,
20 136 S. Ct. 305, 308 (2015). “Only when an officer’s conduct violates a clearly 1 established constitutional right – when the officer should have known he was 2 violating the Constitution – does he forfeit qualified immunity.” Lacey v.
3 Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012). 4 a. Fourth Amendment Excessive Force 5 Pursuant to the Stipulation of Dismissal (ECF No. 32), the only excessive
6 force claim that remains is Plaintiff’s assertion that Defendant’s execution of the 7 canine bite and hold was excessive force under the Fourth Amendment. ECF No. 8 1-1 at ¶ 6.39. 9 When “evaluating a Fourth Amendment claim of excessive force, courts ask
10 whether the officers’ actions are objectively reasonable in light of the facts and 11 circumstances confronting them.” Glenn, 673 F.3d at 871 (quotation marks 12 omitted). Reasonableness is “judged from the perspective of a reasonable officer
13 on the scene, ‘rather than with the 20/20 vision of hindsight.’” Id. (quoting 14 Graham v. Connor, 490 U.S. 386, 396 (1989)). Such an analysis involves three 15 steps. First a court “must assess the severity of the intrusion on the individual’s 16 Fourth Amendment rights by evaluating ‘the type and amount of force inflicted.’”
17 Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) 18 (quoting Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). Second, a court 19 “must evaluate the government’s interest in the use of force.” Glenn, 673 F.3d at
20 871. And third, a court must “balance the gravity of the intrusion on the individual 1 against the government’s need for that intrusion.” Espinosa, 598 F.3d at 537 2 (quoting Miller, 340 F.3d at 964). This three-step inquiry “requires careful
3 attention to the facts and circumstances of each particular case.” Kisela v. Hughes, 4 584 U.S. 100, 103-04 (2018). 5 i. Type and Amount of Force Inflicted
6 The Ninth Circuit has “classified deployment of a police dog as both a 7 severe use of force and a moderate use of force depending on the suspect's 8 condition when the dog was ordered to attack, how long the attack lasted, and 9 whether the dog was within its handler's control.” Seidner v. de Vries, 39 F.4th
10 591, 597 (9th Cir. 2022) 11 In Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994), the Ninth Circuit 12 found the force used to arrest the plaintiff was severe where the police dog “had to
13 bite the suspect three times to achieve an effective hold” and “dragged him 14 between four and ten feet” nearly severing his arm. Similarly, in Smith v. City of 15 Hemet, 394 F.3d 689, 701-02 (9th Cir. 2005) (en banc), the use of force was 16 considered severe where officers pepper sprayed the plaintiff repeatedly even after
17 pinning him to the ground, and either permitted or ordered the police canine to 18 attack him on three separate occasions with “at least on such attack occurring while 19 the officers had him pinned to the ground.” In Miller v. Clark County, 340 F.3d at
20 961, a police dog found the plaintiff in the woods and bit his arm for forty-five to 1 sixty seconds before the handling officer could arrive at the location and order the 2 release. The plaintiff’s injury was serious and required surgery and a several day
3 stay in the hospital. Miller, 240 F.3d at 961. The Ninth Circuit agreed with the 4 district court’s assessment that the bite was “considerable” and was “exacerbated 5 by the duration of the bite.” Id. at 964 (“[T]he intrusion on Miller’s Fourth
6 Amendment interests was a serious one”). And in Watkins v. City of Oakland, 7 Cal., 145 F.3d 1087 (9th Cir. 1998), a question of excessive force was raised where 8 a police dog located the plaintiff hiding in a car, bit him, and continued to bite him 9 even after officers surrounded him and ordered him to show his hands. Recoiling
10 from the dog bite, the plaintiff was unable to comply. The officers then dragged 11 the plaintiff from the car all while permitting the dog to continue biting him. The 12 plaintiff required extensive surgery as a result and complained of mobility
13 problems and pain even years later. Watkins, 145 F.3d at 1090. 14 In contrast, the use of force and actual harm caused was moderate in Lowry 15 v. City of San Diego, 858 F.3d 1248, 1257 (9th Cir. 2017) where the police dog 16 was followed closely by the handling officer and called off within seconds of
17 making contact with the plaintiff. Lowry, 858 F.3d at 1257. Indeed, the encounter 18 “was so brief that [the officer] did not even know if contact had occurred.” Id. 19 The resulting bite to the plaintiff’s lip required three stitches. Id. at 1254.
20 Defendant contends the use of force in this case aligns more closely with the 1 force used in Lowry. ECF No. 33 at 10. The Court disagrees. While Defendant 2 did have control over Jäger by having hands on his collar and harness when the
3 bite and hold was executed, this was not a situation where the contact was brief 4 and the resulting damage relatively minor. It is undisputed that the canine 5 executed a targeted bite and hold on Plaintiff’s calf for around thirty seconds. ECF
6 No. 36 at ¶ 25. The bite began while Plaintiff’s legs were hanging out of the attic, 7 around three feet off the ground, and by all accounts as soon as the bite was 8 applied, Plaintiff released his grip and/or fell from the attic. ECF Nos. 35-1 at 9 60:16-24, 35-2 at 22:17-19, 37-3 at 4. Thus, the majority of that thirty seconds of
10 the bite was while Plaintiff was pulled from the attic to the hallway floor and 11 wrestled under control by at least two deputies. ECF Nos. 35-2 at 22:17-19, 37-1 12 at 11, 39 at 11. During that time, and while still being bitten by Jäger, one deputy
13 thrust a knee into the back of Plaintiff’s neck while another deputy kneed him in 14 the chest and ripped his arm back with such force it tore muscle in his arm and 15 chest. ECF No. 37-1 at ¶¶ 29,34. After Defendant finally released the bite once 16 deputies had a hold of Plaintiff’s arms, Plaintiff had to be rushed to the emergency
17 room for emergency surgery to repair his calf. Id. at ¶ 39. Plaintiff states the 18 injury still affects him to this day. Id. at ¶ 40. 19 Viewing all the facts together, the Court finds they fit more closely with
20 those of Chew, Smith, Miller, and Watkins. The canine bite on Plaintiff was a 1 severe use of force. 2 ii. The Deputy’s Interest in Use of Force
3 A court “must evaluate the government’s interests by assessing (1) the 4 severity of the crime; (2) whether the suspect posed an immediate threat to the 5 officers’ or public’s safety; and (3) whether the suspect was resisting arrest or
6 attempting to escape.” Espinosa, 598 F.3d at 537. 7 Defendant argues that Plaintiff’s episode of domestic violence, specifically 8 him pushing Collier at least twice and throwing a phone at her head, and threats to 9 kill Collier were a severe crime. ECF No. 33 at 11. Plaintiff counters that the
10 crime he was suspected of committing was a gross misdemeanor and that a 11 question of fact exists as to whether Plaintiff intended to hit Collier with the phone 12 and whether those allegations justified the use of a canine bite. ECF No. 37 at 14.
13 Defendant contends that both the Washington Legislature and the Ninth 14 Circuit have recognized domestic violence as serious crimes. Indeed, RCW 15 10.31.100(2)(d) requires an officer to make an arrest when they have probable 16 cause that a person “within the preceding four hours has assaulted a family or
17 household member or intimate partner” and the officer believes “an assault has 18 occurred which has resulted in bodily injury to the victim.” RCW 10.31.100(2)(d); 19 see also United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (“When
20 officers respond to a domestic abuse call, they understand that violence may be 1 lurking and explode with little warning. Indeed, more officers are killed or injured 2 on domestic violence calls than on any other type of call.”).
3 In this case, Collier’s friend, Jenny Slater called 911 and reported that she 4 could hear Plaintiff and Collier yelling at each other in the house, Plaintiff had 5 threatened to kill Collier, Collier had been hit in the head and was bleeding, and
6 that Plaintiff might be armed. ECF Nos. 1-1 at ¶ 4.4, 34 at ¶ 13. Deputy Adams 7 arrived on scene, and after speaking with Collier and Castro, and observing 8 Collier’s head injury, he determined probable cause existed to arrest Plaintiff on 9 gross misdemeanor charges of assault/domestic violence. ECF Nos. 1-1 at ¶ 4.6,
10 34 at ¶ 15. Deputies were therefore statutorily mandated to make an arrest within 11 four hours of the assault. RCW 10.31.100(2)(d). Based on these facts, the first 12 factor weighs in favor of Defendant.
13 The second factor also weighs in favor of Defendant. Defendant argues that 14 she and the other deputies did not know if Plaintiff was armed when they entered 15 the house but believed he could have been based on Slater’s 911 call. ECF No. 33 16 at 12. Plaintiff responds that by the time deputies entered the house, there was no
17 objective evidence supporting the belief that Plaintiff was armed. ECF No. 37 at 18 11. However, as Defendant points out, that statement is contrary to Plaintiff’s 19 admission in his complaint that Slater had reported to police that Plaintiff may
20 have been armed. ECF No. 1-1 at ¶ 4.4. Indeed, the 911 call log Plaintiff provides 1 as an exhibit shows Slater indicating that Plaintiff may have had a weapon. 2 Call receiver: Does he have a weapon?
3 Slater: Um, I’m pretty sure. He had a gun last time I knew. 4 Call receiver: Ok. Did you see a gun? 5 Slater: I did not.
6 . . . 7 Call receiver: So he’s known to carry a firearm but you haven’t seen one today? 8 Slater: Correct. 9 10 ECF No. 37-2 at 75. 11 Moreover, other evidence Plaintiff relies on does not support his contention 12 but further demonstrates that deputies did not know whether Plaintiff had a weapon 13 when they entered the house. First, Plaintiff states that while still on the phone 14 with the 911 operator, Slater asked Collier if Plaintiff had a gun and Collier 15 “indicated she was hit with a phone and did not believe Hays had a gun because he 16 had sold whatever guns he had.” ECF No. 37-1 at ¶ 12. Plaintiff also states in his
17 response brief that after Collier got in the car with Slater, and Slater was still on the 18 phone with 911, “Collier dispelled the notion that Hays had a gun.” ECF No. 37 at 19 11. But Plaintiff’s cited exhibit, the 911 call log, again does not support these
20 statements. Collier never explicitly stated that Plaintiff did not have a gun, but 1 rather that she was not sure if he was armed even though she did not see a weapon. 2 Call receiver: Can you ask her if John was armed?
3 Slater: Victoria, was John armed? 4 Collier: I don’t know (indiscernible) 5 Call receiver: Did she see any weapons?
6 Slater: She didn’t see any weapons. She said all of her clothes are shredded in the kitchen. 7 Call receiver: Did he shred them with something? 8 Slater: Huh? 9 Call receiver: Did she – did she see him – did she see him shred them with something? 10 Slater: No. We literally just got home from a tournament and he 11 told us he was going to kill her. 12 ECF No. 37-2 at 76 (emphasis added). 13 Plaintiff further asserts that “Deputy Watts understood at the time he entered the 14 home that whatever guns Hays may have had were sold.” ECF No. 37-1 at ¶ 13. 15 But during Deputy Watts’s deposition, he indicated that they did not know if 16 Plaintiff had a weapon at that time. 17 Q. Okay. At this time prior to you guys gaining entry to the home, is there any known concerns that Mr. Hays has weapons? 18 A[Deputy Watts]. I think I reference it in the report. . . . Deputy Adams 19 had taken a statement from Victoria and her daughter. I asked if John had any weapons in the home. Usually that’s Adams. Victoria said that 20 she is not sure but that he has had weapons but may have sold them. . . . So usually when we hear things like that, our concern is we do not 1 know, we don’t know if weapons are present or not. 2 ECF No. 37-2 at 83-84 (emphasis added).
3 None of the provided evidence supports Plaintiff’s assertion that the officers 4 and Defendant had no reason to believe that Plaintiff was armed by the time they 5 entered the house. The Court cannot conclude there is a genuine issue of fact as to
6 Defendant’s uncertainty of whether Plaintiff had a weapon. Thus, from 7 Defendant’s perspective, Defendant entered the house with the deputies after hours 8 of Plaintiff refusing to surrender despite repeated orders and phone calls to do so, 9 entered the house knowing that it was possible Plaintiff had a weapon, located
10 Plaintiff seemingly hiding in the attic that could only be accessed through the 11 ceiling in a small closet, and could not see Plaintiff’s upper body or the rest of the 12 attic as they attempted to pull him down after he again refused to surrender or
13 show his hands to the deputies after five orders to do so. A reasonable officer 14 could conclude Plaintiff posed a safety threat to the officer and other deputies in 15 the vicinity. 16 The third factor, whether the suspect was resisting arrest or attempting to
17 escape, also weighs in favor of Defendant. Deputies spent an hour and a half 18 outside of Plaintiff’s house attempting to get Plaintiff to exit the house peacefully, 19 and Plaintiff failed to comply. Deputy Jones made several PA announcements
20 from his vehicle for Plaintiff to exit the house and knocked on the front windows 1 and wall near the front door. ECF No. 1-1 at ¶ 4.13. Deputy Jones also called 2 Plaintiff’s cell phone fifty-six times and left two voicemails requesting Plaintiff
3 call him back. Id. at ¶ 4.18. Once deputies obtained a search warrant and opened 4 the front door of the house, Deputy Adams announced into the house three separate 5 times that Plaintiff needed to surrender, and Defendant warned an additional four
6 times that a police dog would be released to search the house and would bite 7 Plaintiff if he found him. ECF No. 1-1 at ¶ 4.17. Plaintiff did not comply. Upon 8 locating Plaintiff in the attic, deputies ordered Plaintiff to show his hands five more 9 times and warned again that Plaintiff would be bit by the police dog if he did not
10 comply. Id. at ¶¶ 4.20,4.21. Even after deputies began pulling on Plaintiff’s legs, 11 it still appeared that Plaintiff was holding onto something in the attic in an attempt 12 to resist arrest. Id. at ¶ 4.22. Jäger was finally deployed after Deputy Adams
13 administered the two pain compliance strikes to no avail. Id. at ¶¶ 4.22,4.23. 14 Defendant also asserts that Plaintiff was actively kicking his legs to resist being 15 pulled from the attic prior to the canine bite. ECF No. 33 at 13. 16 Plaintiff asserts that a question of fact exists as to whether Plaintiff was
17 conscious or not in the attic and therefore actively resisting arrest. ECF No. 37 at 18 15. Plaintiff asserts that the combination of alcohol and the Ambien rendered him 19 confused, potentially causing him to confuse the attic with his bedroom. ECF No.
20 37-1 at ¶ 20. Once in the attic, Plaintiff became unconscious and did not hear any 1 of the announcements to surrender or warnings that Jäger would be deployed and 2 bite him if he was found. Id. at ¶ 19. Plaintiff contends that he only woke up once
3 Jäger started biting him, and he only kicked is legs in response to the bite, not in an 4 attempt to resist arrest. Id. at ¶ 28. Defendant counters that if Plaintiff was not 5 consciously aware of what was happening up until the dog bite as he claims, he
6 cannot contest Deputy Adams’s testimony that Plaintiff was kicking his legs prior 7 to the bite. ECF No. 39 at 3-4. 8 Regardless of whether Plaintiff was conscious or not in the attic, “[t]he 9 qualified immunity analysis . . . is limited to ‘the facts that were knowable to the
10 defendant officers' at the time they engaged in the conduct in question.’” 11 Hernandez v. Mesa, 582 U.S. 548, 554 (2017) (quoting White v. Pauly, 580 U.S. 12 73, 77 (2017) (per curiam)). None of the facts suggest the deputies had any reason
13 to suspect that Plaintiff was unconscious in the attic and, as a result, did not hear 14 any of the numerous orders to surrender and warnings of a canine bite otherwise. 15 Plaintiff even concedes in his complaint that once Deputy Adams and Deputy 16 Blaakman had hold of Plaintiff’s legs, Deputy Adams “felt Hay’s leg muscles tense
17 and his torso rotate, and believed he was hanging on to something to resist arrest.” 18 ECF No. 1-1 at ¶ 4.22. From a reasonable officer’s perspective, Plaintiff was 19 evading and resisting arrest up to the point Defendant executed the bite and hold
20 on Plaintiff’s leg. 1 Plaintiff also asserts that once he was pulled from the attic, Jäger was 2 permitted to keep biting Plaintiff even after the deputies ripped his arms back,
3 handcuffed him, and then stood up and walked away. ECF No. 37-1 at 7. 4 However, Plaintiff stated in his complaint that the bite was released once deputies 5 grabbed hold of his arms. ECF No. 1-1 at ¶ 4.26. And Defendant also asserts that
6 the bite was released once Plaintiff’s hands were under control. ECF No. 39 at ¶ 7 29. 8 The Ninth Circuit has made it clear “that an officer cannot direct a police 9 dog to continue biting a suspect who has fully surrendered and is under the
10 officer’s control.” Hernandez v. Town of gilbert, 989 F.3d 739, 745 (9th Cir. 11 2021). Plaintiff does not allege that he fully surrendered prior to his hands being 12 grabbed or that he indicated to the deputies that he had surrendered. On the
13 contrary, Plaintiff testified that he did not follow the deputies’ commands to stop 14 resisting and continued kicking his legs while on the floor for around fifteen 15 seconds until deputies were able to get his arms behind his back. ECF No. 37-2 at 16 30. Plaintiff testified that the kicking was in response to the dog bite and not in
17 attempt to resist arrest. Id. However, deputies still had to wrestle with Plaintiff to 18 get him face down and put his arms behind his back, and Plaintiff did not make any 19 communication that he was willing to surrender. Plaintiff’s failure to surrender at
20 any point up until the dog bite and his apparent continued resistance while on the 1 floor would not lead a reasonable officer to conclude that Plaintiff had fully 2 surrendered prior to his hands being grabbed by deputies.
3 Plaintiff finally argues that Defendant could have used less intrusive tactics 4 to apprehend him other than the canine bite. The Court does not find this argument 5 persuasive as it is undisputed that deputies did attempt to use less intrusive
6 methods prior to the bite including calling Plaintiff’s phone fifty-six times, 7 repeatedly announcing orders to surrender both outside the house and inside the 8 house with warnings that Jäger would be deployed and might bite him, pulling on 9 Plaintiff’s legs, and even administering pain compliance strikes to Plaintiff’s ribs
10 in an attempt to pull him from the attic. Moreover, Deputy Adams testified that a 11 taser was not appropriate in this situation because of Plaintiff’s elevated position. 12 ECF No. 60 at 59-60. Plaintiff does not offer what other less intrusive tactics
13 should have been used prior to the bite. 14 iii. Gravity of Intrusion versus the Government’s Need for Intrusion 15 Defendant argues the degree of force was commensurate with the 16 Defendant’s interest in use of that force because of Plaintiff’s repeated failure to
17 comply to demands to surrender both pre-entry, post-entry, and after warnings that 18 Jäger would be deployed, and after lower levels of force proved unsuccessful. 19 ECF No. 33 at 14-15. Plaintiff again argues that he did not hear the numerous
20 announcements to surrender because he was unconscious and that a reasonable 1 juror could conclude that he did not hear such announcements and was therefore 2 not actively resisting arrest. ECF No. 37 at 17-18.
3 As the Court has explained, the inquiry into the objective reasonableness of 4 a particular use of force “must be viewed from the perspective of a reasonable 5 officer on the scene, rather than with the 20/20 vision of hindsight.” Lowry, 858
6 F.3d at 1256 (quoting Graham, 490 U.S. at 396). There is no evidence to suggest 7 the deputies may have believed or could have known that Plaintiff was 8 unconscious in the attic. 9 The Court concludes that the severity of force used in this case was
10 warranted by the deputies’ need for such force. Deputies arrived on scene with 11 reports that Plaintiff had assaulted Collier, threatened to kill her, and was possibly 12 armed. And while Collier was separated from Plaintiff by the time deputies
13 arrived at the house, Plaintiff had locked himself inside their shared residence and 14 possibly had a weapon. Deputies repeatedly ordered Plaintiff to surrender 15 peacefully both before entering the house and after, and warned that a police dog 16 would be deployed and may bite him. Plaintiff did not comply. Upon locating
17 Plaintiff in the attic, deputies ordered him to show his hands five times and again 18 warned that he would be bitten if he failed to comply. Plaintiff did not respond or 19 comply. Deputies attempted to use a lesser intrusive means to make an arrest by
20 first pulling on each of Plaintiff’s legs and then administering two pain compliance 1 strikes to Plaintiff’s ribs, all while not having a visual on Plaintiff’s hands or inside 2 the attic. Only after those failed and deputies believed Plaintiff was holding onto
3 something in the attic to resist arrest was Jäger used to execute a bite and hold. 4 The bite was released once Plaintiff was pulled from the attic to the floor and 5 deputies had his hands under control.
6 These facts are dissimilar from those of Watkins v. City of Oakland where 7 there was no evidence that the plaintiff was armed, and the canine was permitted to 8 keep biting the plaintiff even though he was clearly helpless and surrounded by 9 police officers with their guns drawn. Watkins, 145 F.3d at 1090. This case is also
10 distinguishable from Ellis v. Pierce County, where the plaintiff there left the house 11 on foot with a bottle of alcohol, the police canine sent by a deputy in search of the 12 plaintiff bit the plaintiff without an order to do so, and the deputy permitted the
13 canine to continue biting and pulling on the plaintiff even after she appeared to not 14 be an immediate threat of harm to anyone. Ellis v. Pierce Cnty. by & through 15 Pierce Cnty. Sheriff's Off., 716 F. Supp. 3d 1096, 1104 (W.D. Wash. 2024), aff'd 16 sub nom. Ellis v. Pierce Cnty., No. 24-1361, 2025 WL 853727 (9th Cir. Mar. 19,
17 2025). 18 Viewing the totality of the circumstances here, Plaintiff has not presented 19 sufficient evidence to raise an issue of fact as to whether a Fourth Amendment
20 violation occurred, and Defendant is entitled to qualified immunity as to Plaintiff’s 1 Fourth Amendment excessive force claim. 2 C. Negligence
3 Defendant moves for summary judgment on Plaintiff’s state law negligence 4 claim. ECF No. 33 at 16-17. Washington common law recognizes negligence 5 claims against police officers. Mancini v. City of Tacoma, 196 Wash. 2d 864, 879
6 (2021). To prevail on a negligence claim, a plaintiff “must show (1) the existence 7 of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the 8 breach as the proximate cause of the injury.” Crowe v. Gaston, 134 Wash. 2d 509, 9 514 (1998). Defendant argues Plaintiff’s negligence claim fails because
10 Defendant’s actions did not fall below the expected standard of care, and 11 Defendant is entitled to statutory immunity per RCW 10.99.070. ECF No. 33 at 12 16-17.
13 Under Washington law, 14 A peace officer shall not be held liable in any civil action for an arrest based on probable cause, enforcement in good faith of a court order, or 15 any other action or omission in good faith under this chapter arising from an alleged incident of domestic violence brought by any party to 16 the incident. 17 RCW 10.99.070. 18 “Law enforcement officers are thus immunized from civil liability for conduct ‘in 19 the course of an arrest or other on-the-scene action such as entering the home to 20 break up a fight.’” Feis v. King Cnty. Sheriff’s Dep’t, 165 Wash. App. 525, 551 1 (2011) (quoting Roy v. City of Everett, 118 Wash. 2d 352, 357-58 (1992)). 2 Plaintiff argues that the state statute mandating an arrest of a domestic
3 abuser does not authorize an officer to arrest by any means necessary, and 4 Defendant still had a duty to not violate Plaintiff’s Fourth Amendment rights. ECF 5 No. 37 at 19. Plaintiff contends that a question of fact exists as to whether
6 Defendant breached a duty owed to Plaintiff and was therefore negligent. Id. 7 However, Plaintiff’s negligence claim is a state law claim, and Plaintiff does not 8 address RCW 10.99.070 nor cite to any authority that creates an exception to such 9 an immunity for Fourth Amendment violations. Moreover, the Court has found no
10 Fourth Amendment violation by Defendant. The Court grants summary judgment 11 in Defendant’s favor and dismisses Plaintiff’s state law negligence claim. 12 D. Outrage
13 Defendant moves for summary judgment on Plaintiff’s outrage claim. ECF 14 No. 33 at 17-18. “The elements of the tort of outrage are ‘(1) extreme and 15 outrageous conduct; (2) intentional or reckless infliction of emotional distress, and 16 (3) actual result to the plaintiff of severe emotional distress.’” Fondren v. Klickitat
17 Cty., 79 Wash. App. 850, 861 (1995) (citation omitted). “To be held liable for the 18 tort of outrage, the defendants’ conduct must have been ‘so outrageous in 19 character, and so extreme in degree, as to go beyond all possible bounds of
20 decency, and to be regarded as atrocious, and utterly intolerable in a civilized 1 community.’” Spurrell v. Bloch, 40 Wash. App. 854, 862 (1985) (quoting Grimsby 2 v. Samson, 85 Wash. 2d 52, 59 (1975)). “The question whether certain conduct is
3 sufficiently outrageous is ordinarily a question for the trier of fact,” but the court 4 “must determine in the first instance that reasonable minds could differ on whether 5 the conduct has been sufficiently extreme and outrageous to result in liability.”
6 Spurrell, 40 Wash. App. at 862. 7 Defendant contends that Plaintiff cannot establish that the canine bite went 8 beyond all bounds of decency because Plaintiff was actively resisting arrest when 9 it was executed. ECF No. 33 at 18. Plaintiff responds that a question of fact exists
10 as to whether using the canine as a weapon to cause Plaintiff to fall from the attic 11 was outrageous conduct that recklessly caused Plaintiff severe emotional distress. 12 ECF No. 37 at 20. The Court again disagrees with Plaintiff.
13 Defendant’s execution of the bite and hold on Plaintiff’s calf was reasonable 14 under the specific set of circumstances and was not so outrageous as to “go beyond 15 all bounds of decency.” Plaintiff’s outrage claim is dismissed. 16 ACCORDINGLY, IT IS HEREBY ORDERED:
17 1. Defendant’s Motion for Summary Judgment (ECF No. 33) is 18 GRANTED. 19 2. Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment excessive force claim
20 brought against Defendant Amber Tyler in her individual capacity; and 1 (2) Plaintiff's common law negligence and common law intentional tort 2 claims brought against Defendant Amber Tyler personally are 3 DISMISSED with prejudice. 4 3. Pursuant to the parties Stipulation of Dismissal (ECF No. 32), all of 5 Plaintiff's remaining claims against all other Defendants are 6 DISMISSED with prejudice. Defendants’ cross-claim under RCW 7 4.24.350 for malicious prosecution is DISMISSED with prejudice in its 8 entirety. 9 The District Court Executive is directed to enter this Order, enter judgment in favor of Defendant Amber Tyler, furnish copies to counsel, and close the file. Each party to bear its own costs and expenses. 12 DATED February 19, 2026.
<> United States District Judge 15 16 17 18 19 20
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY