UNITED STATES DISTRICT COURT AT TACOMA DAVID A. JOHNSON, CASE NO. C23-5046 BHS Plaintiff, ORDER v. CLARK COUNTY SHERIFF, et al., Defendants.
This matter is before the Court on the motion for summary judgment filed by Defendants Clark County Sheriff, Sheriff’s Deputy Shane Joachim, the Woodland Police Department, Chief of Police James Kelly, Officer Brent Murray, Cowlitz County, Clark County, and the City of Woodland. Dkt. 46. Because pro se Plaintiff David Johnson fails to raise a genuine issue of material fact in support of any of his claims, the motion is granted and the case is dismissed. In June 2021, Woodland Police Officer Brent Murray observed a vehicle being driven with a defective headlight and no license plate in Woodland, which is in Cowlitz County, Washington. Dkt. 47-1 at 37. Murray drove a marked patrol vehicle and “signaled” for the driver to stop. Id. The driver continued to drive and subsequently stopped at a red traffic light. Id. Murray noticed that the vehicle’s taillight on the right
side did not work. Id. He also observed the driver look back at him through the rear-view mirror. Id. The traffic light turned green and the driver continued on. Id. The driver stopped at the next red traffic light, and Murray activated his vehicle’s emergency lights. Dkt. 47-1 at 37. The driver again looked back at Murray through the rear-view mirror and, when the traffic light turned green, continued to drive. Id. Murray then activated the siren. Id. The driver briefly pulled to the side of the road, but, without
stopping, quickly pulled back onto the road and continued to drive. Id. The driver continued to drive under the speed limit while ignoring Murray’s emergency lights and siren. Id. Murray followed the driver for more than 10 miles and into Clark County. Id. A Clark County sheriff’s deputy advised Murray via his radio that, approximately two years prior, “they had a similar incident with a similar vehicle and the driver claimed
to be a sovereign citizen.”1 Dkt. 47-1 at 37. The sheriff’s deputy “cautioned [Murray] that when they arrested him, the suspect resisted arrest and they had to fight him.” Id. The sheriff’s deputy identified that person as David Johnson and a resident of Yacolt, a city in Clark County. Id. Clark County sheriff’s deputies informed Murray that they would respond to the
area to assist. Dkt. 47-1 at 37. Murray turned off the emergency lights and siren and follow the driver to Yacolt. Dkt. 47-1 at 37. Upon entering Yacolt, Murray noticed Clark
1 Johnson denies that he identifies as a sovereign citizen. Dkt. 47-1 at 6; Dkt. 49 at 4. County Sheriff’s Deputy Shane Joachim “waiting for [him].” Id. Murray again activated the emergency lights, but the driver did not stop and continued to drive under the speed
limit for about three blocks. Id. The driver pulled into the driveway of a residence and parked. Dkt. 47-1 at 37. Murray and Joachim parked their patrol vehicles and approached the driver’s vehicle. Id. The driver exited his vehicle, and Murray observed that the driver “was very large and muscular.” Id. Murray and Joachim informed the driver that he was under arrest. Id. Murray grabbed the driver’s right arm and Joachim grabbed his left arm. Id.; Dkt. 48 at 5.
The driver responded, “No I am not!” and “twisted out of [their] grasp and told [them] to get off his property.” Dkt. 47-1 at 37. Murray and Joachim again informed the driver that he was under arrest. Dkt. 47-1 at 37. They attempted to grab the driver, but he “quickly pulled away from” them. Id. Based on the driver’s stature, Murray believed that “if [they] fought with him, someone
was going to get hurt.” Id. Murray then announced “taser,” pointed his taser at the driver, and ordered the driver “to the ground.” Id. The driver refused to comply with this command and, instead, “said he was leaving and turned around.” Id. Murray activated his taser, and two probes struck the driver in the back before he fell “softly” facedown onto the ground. Dkt. 47-1 at 38. The driver stated “OK, OK.” Id.
Murray ordered the driver to place his arms behind his back while Joachim attempted to place handcuffs on the driver. Id. The driver pulled his right arm away from Joachim and refused to comply with Murray’s commands. Id. The driver attempted to “turtle” his hands underneath his chest, so Murray tasered him again. Id. Joachim successfully placed handcuffs on the driver. Id.; Dkt. 48 at 5. A report of Murray’s taser states that he activated it three times: twice back-to-back for a period of 10 seconds in total and, eight
seconds later, again for a period of five seconds. Dkt. 47-1 at 102. Murray requested emergency medical services. Dkt. 47-1 at 38. The driver stated that “he was fine” and that he did not want or need an ambulance. Id. Murray informed the driver that medical personnel would check his condition, but that the driver did not have to go to the hospital if he did not want to. Id. Emergency medical personal arrived, removed the taser probes from the driver’s back, and offered to place a bandage over the
location where the probes had been. Id. The driver declined the bandage. Id. The driver refused to tell Murray his name. Dkt. 47-1 at 38. Murray perceived the driver as “exaggeratively pretend[ing] to not know who we were or why [we] were on his property,” repeatedly “asking why [Murray] tried to kill him.” Id. The driver told Murray that the driver “was not under arrest” and that Murray “was under arrest and he was
arresting [Murray].” Id. Murray read the driver “his rights” and the driver “refused to answer if he understood his rights or not.” Id. A Clark County sheriff’s deputy then confirmed that the driver was David Johnson. Id. Murray arrested Johnson for failing to obey an officer in violation of RCW 46.61.022, a misdemeanor. Dkt. 47-1 at 39. Murray transported Johnson to the Cowlitz
County jail and issued Johnson notices of infraction for operating a vehicle with a defective headlight, with a defective stop lamp, without a valid operator’s license, without current license plates, and with an expired vehicle license. Id. at 39. At the jail, Murray saw that Johnson “had a small spot of road-rash on his forehead.” Id. at 38. Johnson asserts that his injury took approximately one to two weeks to heal. Dkt. 47-1 at 6.
Johnson was charged in Clark County District Court with one count of resisting arrest in violation of RCW 9A.76.040. Dkt. 47-1 at 69. He ultimately pleaded guilty to one count of disorderly conduct in violation of RCW 9A.84.030, a misdemeanor. Id. at 71. The court sentenced Johnson to one day of partial confinement on work program and time served for two days of total confinement. Id. Johnson sued in this Court, asserting 42 U.S.C. § 1983 claims for false arrest,
excessive force, and violations of his Fifth Amendment and Ninth Amendment rights. Dkt. 27 at 30–31, 36. He also asserts state tort claims of “Gross Negligence and Recklessness,” intentional infliction of emotional distress, assault, battery, negligence per se, false imprisonment, and “Willful and Wanton Negligent Hiring, Retention and Lack of Supervision.” Id. at 4, 34–44.
During his deposition, Johnson testified that he recalled being followed by a Woodland Police Department vehicle the day he was arrested. Dkt. 47-1 at 7. He testified that, at some point, he recalled seeing the vehicle’s emergency lights and hearing the vehicle’s siren. Id. at 7, 9. Johnson stated that only after Murray issued the notices of citations did he realize that his vehicle had a defective headlight and taillight. Id. at 7.
Johnson knew, however, that his vehicle did not have a license plate. Id. at 8. Johnson refused to pull over because he “[d]idn’t feel there was any reason that [he] had to.” Id. Johnson stated that he briefly pulled to the side of the road before returning to the road “[t]o let [the police vehicle] go around [him].” Id. Johnson continued to drive for approximately 30 minutes with Murray following him. Id. at 10.
Johnson recalled driving home, parking, and stepping out of his vehicle. Dkt. 47-1 at 10. Johnson testified that he then “ha[s] no memory for moments of time because that’s the point where Murray shot me in the back with his Taser gun.” Id. Johnson recalled: I just remember opening my car door and the next thing I know, I’m laying -- I was standing in my driveway next to my car door. I just opened it and stepped out facing my garage. And then I have no memory. I just remember waking up, laying on my front porch in front of my door, handcuffed, face on the . . . concrete.
Id. Johnson remembered being treated by medical personnel and Murray driving him to the Cowlitz County jail. Dkt. 47-1 at 11–12. Johnson believes that he was unlawfully seized in violation of the Fourth Amendment because “[n]o crime had been committed” and “[n]o warrant issued.” Id. at 14. He believes that Murray used excessive force when he tasered Johnson and that Joachim used excessive force when he placed handcuffs on Johnson. Id. He also claims that Murray’s conduct violated the Fourteenth Amendment because he “had no authority to be in Clark County or on [his] property” and “no legal reason or right to arrest [him] and shoot [him] in the back with a Taser gun.” Id. at 16. Defendants move for summary judgment on each of Johnson’s claims. Dkt. 46. II. DISCUSSION A. Johnson’s Fourth Amendment false arrest claim fails as a matter of law. Johnson claims that “Defendants falsely imprisoned Plaintiff in that Defendants restrained Plaintiff, the restraint was intentional and the restrain was unlawful” because it violated “[t]he 4th Amendment’s guarantee against unreasonable seizure.” Dkt. 27 at 36. Defendants assert that this claim fails because Murray and Joachim had probable cause to
arrest Johnson for both failing to obey an officer in violation of RCW 46.61.022 (a misdemeanor) and resisting arrest in violation of RCW 9A.76.040 (a misdemeanor). Dkt. 46 at 11–12. They also contend that this claim is barred by the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), because “a decision in Plaintiff’s favor would necessarily contradict his disorderly conduct conviction.” Id. at 24–25. Johnson responds that a fact issue exists concerning his false arrest claim because “[n]o crime had been
committed by the Plaintiff” and “Murray stated in his report . . . that I obeyed all traffic laws.” Dkt. 49 at 5. Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the
nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one- sided that one party must prevail as a matter of law.” Id. at 251–52. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant’s claim. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323–24. There is no requirement that the moving party negate elements of the non-movant’s case. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990). Once the moving party has met
its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson, 477 U.S. at 248. “To prevail on [a] § 1983 claim for false arrest and imprisonment, [the plaintiff] would have to demonstrate that there was no probable cause to arrest him.” Cabrera v.
City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). However, when “a judgment for [a plaintiff] on [a] § 1983 claim ‘would necessarily imply the invalidity of his conviction,’ Heck would bar [the plaintiff] from bringing his cause of action until his conviction was overturned.” Cabrera, 159 F.3d at 380 (internal citation omitted) (quoting Heck, 512 U.S. at 487).
Johnson was convicted of one count of disorderly conduct in relation to the facts underlying his false arrest claim. Dkt. 47-1 at 71. Johnson presents no evidence that this conviction was overturned. Although Johnson was convicted of disorderly conduct, it is of no consequence that Murray and Joachim arrested him for a different offense: failing to obey an officer.2 See District of Columbia v. Wesby, 583 U.S. 48, 54 n.2 (2018) (“[A]n arrest is lawful if the officer had probable cause to arrest for any offense, not just the
offense cited at the time of arrest or booking.”). On these facts, a finding that there was no probable cause to support Johnson’s arrest would “necessarily imply” that his conviction was invalid. See Cabrera, 159 F.3d at 380. Under Heck, Johnson fails to state a plausible false arrest claim. Defendants’ motion on Johnson’s false arrest claim is GRANTED, and that claim is DISMISSED with prejudice.
B. Johnson’s Fourth Amendment and Fourteenth Amendment excessive force claims fail as a matter of law. Johnson claims that Murray and Joachim used “excessive force on Plaintiff proximately causing a violation of Plaintiff’s Fourth and Fourteenth Amendment rights protecting against such unlawful seizure and excessive force” Dkt. 27 at 31. He alleges that “[t]he very moment Murray shot me in my back with his Taser gun he . . . unlawfully seized my body.” Id. at 35. He also alleges that “[t]he very second Joachim placed handcuffs on me he violated my Right to be free from unnecessary use of force and he seized my body.” Id. Murray responds that his use of a taser was objectively reasonable because (1) Johnson was resisting arrest and ignoring the officers’ commands, (2) Murray knew that, on a previous occasion, Johnson had also resisted arrest and refused to comply with officers’ commands, and (3) given Johnson’s insubordination and stature, Murray
2 Dkt. 47-1 at 34–35 reasonably believed that the use of a taser was necessary to avoid risk of physical injury to himself or Joachim. Dkt. 46 at 14. Joachim asserts that his act of handcuffing Johnson
was objectively reasonable and did not result in any injury to Johnson. Id. at 16. Murray and Joachim also contend that they are qualifiedly immune from Johnson’s excessive force claims because Johnson fails to establish that they violated a clearly established right. Id. at 27. Johnson responds that a fact issue exists on his excessive force claims because “Murray claims he unknowingly tased [sic] me a third time by unintentional discharge.”
Dkt. 49 at 7. He asserts that “[n]o threatening actions from me were ever displayed by me towards the public or police officers” and that “[t]he Defendants must show that I resisted arrest or committed any violent or threatening behaviors.” Id. at 8. He also asserts that Murray’s “training certification” had expired before he used the taser, and that Murray violated numerous department policies. Id. at 8–9. He finally asserts that Murray’s use of
a taser amounted to unconstitutionally deadly force. Id. at 7–9, 11–12 The Supreme Court has made clear that “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”
Graham v. Connor, 490 U.S. 386, 395 (1989). The Court accordingly analyzes Johnson’s excessive force claim under the Fourth Amendment, and his Fourteenth Amendment claim is DISMISSED with prejudice. “Excessive force claims are founded on the Fourth Amendment right to be free from unreasonable seizures of the person.” Shafer v. Cnty. of Santa Barbara, 868 F.3d
1110, 1115 (9th Cir. 2017) (citing U.S. CONST. amend. IV; Graham v. Connor, 490 U.S. 386, 394–95 (1989)). “The Fourth Amendment is implicated where an officer exceeds the bounds of reasonable force in effecting an ‘an arrest, investigatory stop, or other seizure.’” Shafer, 868 F.3d at 1115–16 (quoting Graham, 490 U.S. at 395–96). Where, as here, a government official raises the defense of qualified immunity, the plaintiff must demonstrate that (1) “the facts a plaintiff has . . . shown . . . make out a
violation of a constitutional right,” and (2) “the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). The qualified immunity doctrine “protect[s] officers from the sometimes ‘hazy border’ between excessive and acceptable force.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (parenthetically quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)).
Under the first step, courts “analyze excessive force claims according to the constitutional touchstone of objective reasonableness, so [they] do not consider an officer’s subjective ‘intent or motivation.’” Shafer, 868 F.3d at 1116 (quoting Graham, 490 U.S. at 397). Courts also “judge reasonableness of the force ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Shafer,
868 F.3d at 1116 (quoting Graham, 490 U.S. at 396). This is “because ‘officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’” Shafer, 868 F.3d at 1116 (quoting Graham, 490 U.S. at 397). “This determination requires [courts] to balance the ‘nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.’” Shafer, 868 F.3d at 1116 (Graham, 490 U.S. at 396). Courts consider “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 397. “[T]he most important single element of the three specified factors” is “whether the suspect poses an immediate threat to the safety of the officers or
others.” Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). The crimes at issue here not just the traffic infractions committed by Johnson, but also Johnson’s failure to obey an officer in violation of RCW 46.61.022 and resisting arrest in violation of RCW 9A.76.040. Having observed these misdemeanors, Murray and Joachim were statutorily authorized to arrest Johnson. See RCW 10.31.100 (“A police
officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of an officer.”). Murray and Joachim also reasonably believed that Johnson was resisting arrest. Murray had observed Johnson refuse to pull over despite following Johnson for approximately 30 minutes with his patrol vehicle’s emergency lights and sirens activated.
See Dkt. 47-1 at 10. Johnson has no memory of what occurred after he parked and exited his vehicle in his driveway and before “waking up” handcuffed. Dkt. 47-1 at 10, 18. Murray recalls that he and Joachim grabbed Johnson’s arms and informed him that he was under arrest. Id. at 37. Johnson responded, “No I am not!” and “twisted out of [their] grasp,” telling them to “get off his property.” Id. When Murray warned Johnson that he would use his taser unless Johnson got on the ground, Johnson refused to comply and
“turned around,” saying that he “was leaving.” Id. Based on this unchallenged evidence, a reasonable officer at the scene would believe that Johnson attempted to evade arrest. Murray also reasonably believed that Johnson posed a threat of harm. When Murray followed Johnson’s vehicle, he learned from a Clark County sheriff’s deputy that, during a prior “similar incident,” Johnson had “resisted arrest and [the deputies] had to fight him.” Id. The record is not clear as to whether—at this time—Murray knew any
other details of this prior incident or what, exactly, the deputy meant by stating that they had to “fight” Johnson. See S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019) (“Only information known to the officer at the time the conduct occurred is relevant” to an excessive force claim under the Fourth Amendment). Nevertheless, based on this information, it was objectively reasonable for Murray
to believe that, on the prior occasion, Johnson physically resisted the deputies’ efforts to arrest him. Furthermore, when Murray first saw Johnson exit his vehicle, Murray perceived Johnson and being “very large and muscular.” Id. Considering Johnson’s stature, noncompliance, and history of “fighting” other deputies during a similar incident, Murray reasonably believed that “if [they] fought with him, someone was going to get
hurt.” Dkt. 47-1 at 10. Viewed in the light most favorable to Johnson, Murray’s taser report indicates that Murray initially activated his taser two times back-to-back, for a period of 10 seconds in total. Id. at 102. Johnson then refused to comply with Murray’s command to place his arms behind his back and, instead, attempted to hide his hands underneath his chest. Dkt. 47-1 at 38. Murray accordingly activated his taser again for a period of five seconds, and
Joachim placed handcuffs on Johnson. Id. at 38, 102. The only injury suffered by Johnson was “a small spot of road-rash on his forehead,” id. at 38, which healed in one to two weeks. Id. at 6. Although officers “‘need not avail themselves of the least intrusive means of responding to an exigent situation’” and “‘need only act within that range of conduct we identify as reasonable,’” Johnson does not attempt to explain what lesser form of force
Murray should have used. Hughes v. Kisela, 841 F.3d 1081, 1087 (9th Cir. 2016), rev’d on other grounds, Kisela v. Hughes, 584 U.S. 100 (2018) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). Murray reasonably believed that attempting to restrain Johnson without the use of a taser posed a greater risk of harm to Murray, Joachim, and Johnson. Murray considered his options, and availed himself to what he reasonably
believed was the least-intrusive option. Under the Fourth Amendment, “police are required to consider [w]hat other tactics if any were available, and whether there are clear, reasonable and less intrusive alternatives to the force being contemplated.” Hughes, 841 F.3d at 1087, rev’d on other grounds, Kisela, 584 U.S. 100 (internal quotation marks omitted) (quoting Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010)). Murray did
just that. Under these circumstances, Murray’s use of a taser was reasonable as a matter of law. Johnson also fails to establish that Joachim’s act of placing handcuffs on Johnson was objectively unreasonable. Murray and Joachim had probable cause to arrest Johnson, and Johnson attempted to evade arrest. Under these circumstances, Joachim’s use of handcuffs was objectively reasonable.
Johnson argues that Murray’s statement that “he and Joachim each grabbed my arms and told me I was under arrest” is “factually wrong” and that “Murray never gave me any warning or verbal commands about anything.” Dkt. 49 at 4–5. Johnson asserts that he “never even had the opportunity to close [his] car door” and, “[a]t that time is when Murray shot [him] in [his] back with [the] taser gun.” Id. at 5. Defendants reply that, because none of these assertions are supported by evidence, the Court should
disregard them. Dkt. 50 at 2 (citing Fed. R. Civ. P. 56(c)(1)(A), (3), (4)). Defendants further assert that these statements should be disregarded because they contradict Johnson’s sworn deposition testimony. Id. at 3. They assert that Johnson’s statements in his briefing, if considered by the Court, violate the sham affidavit rule. Id. (citing Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012).
The Court agrees that Johnson’s assertions in his briefing are improper. They are not supported by evidence and, in turn, violate Federal Rule of Civil Procedure 56(c)(1)(A): “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to parts of materials in the record.” Even if the Court were to consider these assertions as having been made in an
affidavit or declaration, Johnson fails to demonstrate that he has personal knowledge of the facts asserted. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge” and “set out facts that would be admissible in evidence”); Fed. R. Civ. P. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Johnson testified under oath numerous times that he
does not recall anything after he exited his vehicle and before he “w[oke] up” handcuffed. Dkt. 47-1 at 10. He testified, “I have no memory of the incident” and “whatever went on between that moment, I have no memory of it.” Id. at 18. Johnson testified that he did not remember Joachim arriving, being tasered, or being handcuffed. Id. Johnson does not explain how he personally knows that that Murray and Joachim never grabbed his arms and informed him that he was under arrest, or that Murray never
announced a warning before tasering him. He does not, for example, claim that he is now able to recall memories that he was previously unable to recall during his deposition. Without such an explanation, Johnson’s statements contradict his deposition testimony and, in turn, would violate the sham affidavit rule. See Yeager, 693 F.3d at 1080 (“[A] party cannot create an issue of fact by an affidavit contracting his prior deposition
testimony.”).3 Murray’s and Joachim’s versions of the facts are unrebutted by Johnson and there is no evidence in the record to reject these officers’ recollections of the circumstances surrounding his arrest. Viewing the evidence in the light most favorable to Johnson, he physically resisted arrest, ignored Murray’s warning that he would be tasered unless he
3 Defendants also move to strike the “Statement of Facts” section of Johnson’s response brief. To the extent that Johnson’s statements in his briefing contradict his sworn deposition testimony and are not otherwise supported by evidence, the Court disregards them. However, the motion to strike is DENIED. got on the ground, and refused to comply with Murray’s command to place his hands behind his back. Under these circumstances, Murray and Joachim acted reasonably.
Johnson also argues that Murray “was not in compliance with” numerous departmental policies when he used his taser, and that Murray’s “training certification had expired one month prior to the date he shot [Johnson] with his taser gun.” Dkt. 49 at 8–9. Johnson does not describe the content of these policies or provide copies of them. He also does not provide any evidence that Murray’s “training certification” had expired. In any event, the mere violation of a police department’s policies does not demonstrate
unconstitutional use of force. See Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 930 (9th Cir. 2001) (“Whether the deputies violated a state law or an internal departmental policy is not the focus of our inquiry.”); Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985) (dismissing plaintiffs’ § 1983 claim because they “failed to show a violation of any constitutional right,” despite violation of internal policy
(Emphasis added)). Johnson finally asserts that Murray’s use of a taser amounted to “deadly force.” Dkt. 49 at 7–9, 11–12. He fails to cite any authority to support this assertion. In fact, the Ninth Circuit has explained that “tasers used in dart-mode ‘constitute an intermediate, significant level of force.’” Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011)
(quoting Bryan, 630 F.3d at 826). The record is unclear as to whether Murray used his taser in dart mode. In any event, the Court “need not decide this issue in order to assess the reasonableness of the tasing.” Mattos, 661 F.3d at 443. The Court need only consider the reasonableness of Murray’s conduct under the Graham factors. See id. Johnson fails to establish a genuine issue of material fact under those factors.
For these reasons, Johnson fails to establish a fact issue in support of his excessive force claim. Because he fails to “make out a violation of a constitutional right,” Defendants are entitled to judgment as a matter of law. Pearson v. Callahan, 555 U.S. at 232. Their motion for summary judgment on Johnson’s Fourth Amendment excessive force claim is accordingly GRANTED and that claim is DISMISSED with prejudice. C. Johnson’s Fifth Amendment and Ninth Amendment claims fail as a matter of law. Johnson’s complaint asserts that “[t]he defendants also violated Plaintiff’s 5th and 9th Amendment Rights under the U.S. constitution.” Dkt. 27 at 15. Defendants assert that “there are no allegations regarding any Miranda[4] rights, nor was there a custodial interrogation,” that “[t]hese Defendants were not involved in any criminal proceedings related to this incident,” and that “[a]ny Fifth Amendment claim should therefore be dismissed.” Dkt. 46 at 18. They also assert that, because the Ninth Amendment “does not enunciate a particular right but protects other fundamental rights not in the Constitution,” Johnson “has not established a Ninth Amendment claim.” Id. Johnson’s response does not address the Ninth Amendment claim, but Johnson asserts that “Officer Murray never read me my rights.” Dkt. 49 at 5. Because Johnson fails to provide any factual or legal support for either of these claims, they fail. In any event, a Miranda violation does not provide a basis for a § 1983
4 Miranda v. Arizona, 384 U.S. 436 (1966). claim because Miranda’s “prophylactic purpose is served by the suppression at trial of statements obtained in violation of Miranda and by the application of that decision in
other recognized contexts.” Vega v. Tekoh, 597 U.S. 134, 151 (2022). Additionally, a § 1983 claim cannot be based on an alleged violation of the Ninth Amendment because “the ninth amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim” and “[t]he Supreme Court has repeatedly voiced concern that a section 1983 claim be based on a specific constitutional guarantee.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir.
1986). Defendants’ summary judgment motion on Johnson’s Fifth Amendment and Ninth Amendment claims is GRANTED and those claims are DISMISSED with prejudice. D. Johnson’s state tort claims against Murray and Joachim fail. Johnson asserts against Murray and Joachim state tort claims of gross negligence
and recklessness, false imprisonment, intentional infliction of emotional distress, assault, battery, and negligence per se. Dkt. 27 at 33–41. Murray and Joachim contend that they are entitled to state immunity against these claims. Dkt. 46 at 27–28. They also argue that these claims fail on the merits. Id. at 18–23. Johnson responds that Murray and Joachim are not entitled to state immunity, but he fails to cite any state authority in support of this
assertion. Dkt. 49 at 13. He also argues that a genuine issue of material fact exists concerning each of these claims. Id. at 10–12. In Washington, “[a]n officer is entitled to state law qualified immunity where the officer (1) carries out a statutory duty, (2) according to procedures dictated to him by statute and superiors, and (3) acts reasonably.” Gallegos v. Freeman, 172 Wash. App. 616, 641, 291 P.3d 265, 277 (2013) (internal quotation marks omitted) (quoting
McKinney v. City of Tukwila, 103 Wn. App. 391, 407 (2000)). When Murray and Joachim arrested Johnson, they acted pursuant to a statute providing that “[a] police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of an officer.” RCW 10.31.100. They also acted in accordance with a statute stating that “a peace officer may use physical force against a person to the extent necessary to”
“effect an arrest.” RCW 10.120.020(1)(b). Finally, already explained, Murray’s and Joachim’s use of force in effecting the arrest was reasonable. They are therefore qualifiedly immune from Johnson’s state law claims. Those claims are DISMISSED with prejudice. E. Johnson’s negligent hiring, retention, and supervision claims fail.
Johnson asserts claims of negligent hiring, retention, and supervision against the Clark County Sheriff’s Department and the Woodland Police Department. Dkt. 27 at 41– 44. These defendants move for summary judgment because “there is no allegation or admission that” Murray or Joachim “were acting outside the course and scope of their employment.” Dkt. 46 at 23. To the contrary, they assert, Johnson “specifically alleges,
‘The defendants were at all times acting under color of state law and in the course and scope of their duties as an agent for the [C]ity of Woodland and Clark County.’” Id. (quoting Dkt. 27 at 1–2). Johnson advances no argument that the Woodland Police Department or the Clark County Sheriff’s Office negligently hired or retained Murray or Joachim, respectively.
“An employer negligently hires an employee when it knew or should have known that the employee was unfit for the position.” Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 343, 356 (2018). Likewise, “[n]egligent retention consists of . . . retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before . . . retaining him.” Id. at 358. Because Johnson presents no evidence or argument that Murray or Joachim were unfit for their positions, either when they were hired or during
the course of their employment, Defendants’ motion for summary judgment on Johnson’s negligent hiring and retention claims is GRANTED and those claims are DISMISSED with prejudice. Johnson’s negligent supervision claim also fails. “[A]n action based on negligent training and supervision ‘is applicable only when the [employee] is acting outside the
scope of his employment.’” Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 343, 361 (2018) (quoting Restatement (Second) of Torts § 317 cmt. a)). Whether an employee “was acting within the scope of employment depends on whether he . . . ‘was fulfilling his . . . job functions at the time he . . . engaged in the injurious conduct.’” Anderson, 191 Wn.2d at 361 (quoting Robel v. Roundup Corp., 148 Wn.2d 35, 53 (2002)). “An
employee is not fulfilling his job functions when his conduct ‘is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.’” Anderson, 191 Wn.2d at 361–62 (internal quotation marks omitted) (quoting Robel, 148 Wn.2d at 53). Johnson contends that Murray acted outside the scope of his employment “when he entered Clark County” and that both Murray and Joachim acted outside the scopes of
their employment when they were “unlawfully on my private property.” Dkt. 49 at 12 (RCW 10.93.070). The cited statute enumerates the circumstances under which a peace officer “may enforce the traffic or criminal laws of this state throughout the territorial bounds of this state.” RCW 10.93.070. One such circumstance is “[w]hen the officer is in fresh pursuant, as defined in RCW 10.93.120.” Id. That statute provides that “[a]ny peace officer who has authority under Washington law to make an arrest may proceed in fresh
pursuit of a person . . . who is reasonably believed to have committed a violation of traffic or criminal laws.” RCW 10.93.120(1). When Murray pursued Johnson into Clark County, Murray had already observed Johnson driving a vehicle with a defective headlight and taillight and without a license plate. He also observed Johnson refuse to pull over despite having signaled for Johnson
to do so. Murray accordingly acted within the scope of his employment when he continued to pursue Johnson into Clark County. Furthermore, both Murray and Joachim acted within the scopes of their employment when they arrested Johnson on his private property. Johnson’s clam for negligent supervision is therefore DISMISSED with prejudice.5
5 Defendants also assert that Johnson’s Monell claim fails to the extent that he asserts one. Dkt. 46 at 28–30. Johnson’s complaint does not clearly state a Monell claim, and his response brief does not reference one. See generally Dkts. 27, 49. The Court accordingly assumes that Johnson does not advance such a claim. Therefore, it is hereby ORDERED that Defendants’ motion for summary
judgment, Dkt. 46, is GRANTED. All of Johnson’s claims are DISMISSED with prejudice. The Clerk shall enter a JUDGMENT and close the case. Dated this 30th day of April, 2024. A BENJAMIN H. SETTLE United States District Judge