Kocar v. Vader et al, No. 3:2009cv05697 - Document 66 (W.D. Wash. 2012)
Court Description: ORDER granting 36 Defendants' Motion for Summary Judgment; Plaintiff's claims are DISMISSED with prejudice. Signed by Judge Ronald B. Leighton.(DN)
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Kocar v. Vader et al Doc. 66 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 CHRISTOPHER KOCAR, CASE NO. 3:09-cv-05697 RBL 9 Plaintiff, 10 v. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11 12 13 CITY OF VADER, CITY OF TOLEDO, CITY OF WINLOCK, [Dkt. # 36] Defendants. 14 15 THIS MATTER is before the Court on the Defendants’ Motion for Summary Judgment 16 [Dkt. #36]. Police responded to a drunken bar fight and chased after and Tased Plaintiff Kocar 17 when he fled the scene refusing to comply with police commands to stop. Kocar has a fractured 18 skull, but does not remember the night’s events. He sued the three cities who sent police to the 19 fight (but not the officer who Tased him). The cities argue that there is no evidence supporting 20 Kocar’s vicarious liability claims against them and seek summary judgment. Because the cities 21 are correct, the Motion is GRANTED. 22 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 I. FACTUAL BACKGROUND. According to Tina Riley, on September 8, 2007, Travis Growden punched Darwin Flitton 3 in the face outside Harry’s Bar in Toledo. Riley (Flitton’s girlfriend) witnessed the fight and 4 called 911. When officers arrived, Growden fled up the street and Riley followed. As an officer 5 also chased after Growden, Riley pointed to Growden as the person who had hit her boyfriend. 6 According to Vader Police Officer Justin Stennick, the Lewis County Communications 7 Dispatcher advised that six to eight people were involved in a physical disturbance in Toledo. 8 Stennick was the first to respond. When he arrived, Stennick saw men fleeing the scene where a 9 crowd had gathered. Others at the scene pointed in the direction of the fleeing men, indicating 10 that they were involved in the altercation. 11 Stennick identified one of the suspects, who was wearing shorts and had tattoos on his 12 arms and back. Stennick chased the men on foot, yelling “Stop, police,” multiple times. The 13 suspects did not stop and eventually split up. Stennick continued pursuing the suspect in the 14 shorts, later identified as Plaintiff Christopher Kocar. Stennick eventually cornered Kocar, 15 yelled “Stop, police,” and repeatedly instructed Kocar to get on the ground. Stennick drew his 16 Taser and instructed Kocar, “Get on the ground or you will be Tased.” Kocar seemed agitated, 17 clenching his hands into fists, yelling erratically, cursing, and moving erratically side to side. 18 These behaviors indicated to Stennick that Kocar was preparing to attack, and Stennick was 19 concerned for his safety. 20 After repeated instructions, Kocar kneeled to the ground and then moved into a “push up” 21 position, but he would not lay completely prone. Winlock Police Officer Stephen Miller 22 approached Stennick and Kocar in his patrol car. When Kocar heard the car on the gravel, he 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 2 1 jumped up and ran away. Stennick ran after Kocar, yelling “Stop or I will Tase you.” Kocar did 2 not comply, and Stennick Tased him. Miller arrived to see Kocar lying on the ground. 3 As Miller and Stennick began to arrest Kocar, he started vomiting. Stennick placed him 4 on his side to prevent choking and smelled alcohol on Kocar’s breath. Miller called for aid and 5 Kocar was transported to the emergency room, where he was treated by Dr. Paul Sunderland. 6 Dr. Sunderland noted that Kocar was extremely intoxicated and combative. Kocar alleges that 7 he suffered two skull fractures and a subdural hematoma. Dr. Sunderland agrees that Kocar had 8 the fractures, but he was unable to determine their cause. Kocar does not remember the fight, the 9 pursuit, or the Tasing incident. 10 Kocar sued the cities of Toledo, Vader, and Winlock, claiming they are vicariously liable 11 for Stennick’s assault, battery, and negligence. He also claims that Stennick used excessive 12 force in violation of his Fourth Amendment rights. He did not, however, sue Stennick 13 personally. Instead, he asserts a Monell claim against the cities, arguing that their policy(ies) 14 regarding the use of a Taser, and the absence of a mutual aid agreement between the cities, 15 caused violations of his constitutional rights. Defendants seek Summary Judgment on all claims, 16 arguing that Kocar has no evidence to support any of them. 17 In response, Kocar requested a Rule 56(d) continuance in order to obtain and file 18 admissible declarations, depositions, or other evidence in opposition to the Motion, and the Court 19 granted that request. Kocar filed a Second Supplemental Response including witness interview 20 transcripts obtained by Kocar’s investigator. The transcripts suggest that Kocar was not the 21 22 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 3 1 fight’s instigator, but they do not rebut1 Stennick’s testimony about what happened after he 2 arrived, and they shed no light on the cause of Kocar’s injuries. 3 Kocar also submitted an expert report by Dr. Steven Mitchell. Dr. Mitchell opines that 4 Kocar’s injuries were caused by blunt force trauma to the head. But Dr. Mitchell admits he 5 cannot opine about the cause of the injuries to a reasonable degree of medical certainty. 6 II. 7 DISCUSSION. Summary judgment is appropriate when, viewing the facts in the light most favorable to 8 the nonmoving party, there is no genuine issue of material fact which would preclude summary 9 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 10 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 11 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for 12 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 13 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. 14 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 15 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 16 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, 17 “summary judgment should be granted where the nonmoving party fails to offer evidence from 18 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 19 1221. 20 21 1 In addition to being unhelpful, Kocar’s supplemental affidavits are inadmissible. The witnesses have not sworn that the transcripts of their interviews are accurate. It is not enough to 23 have Kocar’s attorney’s secretary swear that the transcripts are true and accurate. 22 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 4 1 The cities argue that Stennick’s use of the Taser was reasonable as a matter of law and 2 that there is no evidence supporting Kocar’s claim that Stennick fractured his skull. The cities 3 emphasize that they cannot be vicariously liable in the absence of underlying assault or battery, 4 and that there is no vicarious liability under § 1983. The cities also argue that Kocar’s Monell 5 claim fails as a matter of law. 6 Kocar argues that no mutual aid agreement, explicit or implied, existed between the three 7 cities, and that the absence of such an agreement renders Stennick’s actions unlawful because he 8 should not have even responded to the 911 call. Kocar also argues that because Dr. Mitchell 9 opines that the skull fractures were consistent with blunt force trauma, Stennick must have 10 kicked or hit him in the head while he was on the ground, and that doing so was excessive and a 11 violation of his Fourth Amendment rights. Finally, Kocar argues that the cities are vicariously 12 liable for Stennick’s negligence in using excessive force to arrest him, and that the cities were 13 generally negligent in hiring and training their officers. 14 A. Assault and Battery. 15 Kocar alleges that Stennick intentionally used excessive and unlawful force by Tasing 16 him for no reason (he claims he was not involved in the bar fight, but does not deny fleeing the 17 scene). Kocar further alleges that his fractured skull and subdural hematoma must have resulted 18 from Stennick hitting him, not from falling after being Tased. Kocar claims that the three cities 19 are liable for Stennick’s actions because Stennick acted within the city of Toledo, Vader hired 20 Stennick, and Winlock officers had also responded to the 911 call. Defendants argue that the 21 Tasing did not amount to assault and battery as a matter of law. 22 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 5 1 Washington law clearly provides that if a defendant flees or forcibly resists arrest, an 2 officer may use all necessary force to effect the arrest, including Tasing the defendant. See RCW 3 10.31.050. 4 Kocar’s claims for assault and battery based on the Tasing itself fail as a matter of law 5 because Kocar has not submitted evidence that the Taser deployment, or any other action by any 6 officer, was unreasonable. Kocar does not (and cannot) dispute that he fled the scene and 7 refused to comply with Stennick’s commands. 8 Kocar’s claims for assault and battery based on his claim that Stennick “must have” done 9 something to fracture his skull fail as a matter of law because there is literally no evidence to 10 support them. He does not claim that Stennick hit or kicked him; his medical expert does not 11 (and cannot) claim that the injuries were caused by Stennick; and even the inadmissible witness 12 interviews do not claim that Stennick did anything to Kocar except chase him and Tase him. 13 Because Stennick’s actions did not amount to assault and battery as a matter of law, the 14 cities cannot be vicariously liable for such torts as a matter of law. Defendants’ Motion for 15 Summary Judgment on Kocar’s assault and battery claims is GRANTED and those claims are 16 DISMISSED WITH PREJUDICE. 17 B. Negligence. 18 The cities argue that Kocar cannot establish that the officer or the cities acted negligently. 19 They also argue that there is no evidence supporting Kocar’s claim that the hiring or training of 20 any officer or supervisor proximately caused Kocar’s injuries. 21 Kocar argues that Stennick violated his duty to Kocar to “detain him lawfully and only 22 with reasonable force.” Resp. Mot. for Summ. J. at 16 [Dkt. # 42]. Kocar also alleges that the 23 cities breached their duty to Kocar by “employing officers who used excessive force and were, 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 6 1 apparently, not trained to use only a proper amount of force and avoid injuring the Plaintiff.” 2 Compl. at 3 [Dkt. # 1]. 3 To maintain an action for negligence under Washington law, “a plaintiff must show (1) 4 that the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, (3) 5 the plaintiff was injured, and (4) the defendant’s breach was the proximate cause of the injury.” 6 Doty-Fielding v. Town of South Prairie, 143 Wn. App. 559, 563 (2008). 7 Stennick was not negligent in Tasing Kocar because he had a duty to stop Kocar from 8 running away. See RCW 10.31.050. Put another way, Kocar has not established that Stennick 9 had a duty not to chase or Tase him. Kocar admittedly ran away from Stennick, while Stennick 10 was trying to arrest him as a suspect in a bar brawl. Because Stennick was not negligent in 11 deploying his Taser as a matter of law, the cities cannot be vicariously liable for negligence, as a 12 matter of law. 13 Kocar’s claim that the cities were themselves negligent in employing and/or deploying 14 Stennick and his Taser are wholly without factual or legal support. Defendants’ Motion for 15 Summary Judgment on Kocar’s negligence claims against the cities is GRANTED and those 16 claims are DISMISSED WITH PREJUDICE. 17 C. Monell Claim. 18 Kocar brings a Monell claim under 42 U.S.C. § 1983, arguing that the cities violated his 19 constitutional rights. Defendants argue that there is no evidence supporting a Monell claim, 20 because the cities cannot be vicariously liable for assault, battery, and negligence, and no 21 evidence exists to show that any of the cities or Stennick caused a violation of Kocar’s 22 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 7 1 constitutional rights. Kocar alleges that the mutual aid agreement,2 explicit or implied, caused a 2 violation of his constitutional rights, as well as the use of force policy. 3 It is well settled that a “municipality cannot be held liable under § 1983 on a respondeat 4 superior theory.” Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, any 5 claim that the cities are liable for Stennick’s alleged use of excessive force is not viable as a 6 matter of law. 7 Municipalities can be held liable, however, if either a policy or custom leads to the 8 violation of the constitutional right. Id. at 690–91. Kocar must “allege that the action inflicting 9 injury flowed from either an explicitly adopted or a tacitly authorized city policy.” Gibson v. 10 United States, 781 F.2d 1334, 1337 (9th Cir. 1986). Additionally, Kocar must show that 11 “through [the municipality’s] deliberate conduct, [it] was the ‘moving force’ behind the injury 12 alleged.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original). 13 Further, when a plaintiff tries to use a single incident to demonstrate municipal liability, that 14 liability attaches “only when the decisionmaker possesses ‘final authority’ to establish municipal 15 policy with respect to the action ordered.” Collins v. City of San Diego, 841 F.2d 337, 341 (9th 16 Cir. 1988) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). The court in Monell 17 and Pembaur envisioned that acts to which liability would attach would be those taken by 18 officials whose “edicts may fairly be said to represent official policy.” Collins, 841 F.2d at 341 19 (quoting Pembaur, 475 U.S. at 480)). 20 Kocar has not established that the use of the Taser was excessive. His Monell claim is 21 instead based on the convoluted argument that because the cities did not have a “mutual aid 22 2 A mutual aid agreement authorizes shared police duties where officers from other jurisdictions can assist other jurisdictions’ officers. based on a request to respond for aid. Washington 24 enacted a statute that authorizes these agency assists as well. See RCW 10.93 et seq. 23 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 8 1 agreement” (governing the circumstances in which officers from one of these small jurisdictions 2 would respond to calls in another), Stennick should not have even responded to the call in the 3 first place. Thus, he argues, he should not have been in a position to chase and Tase the fleeing 4 suspect, Kocar. 5 But Kocar has not provided any evidence even suggesting that the mutual aid agreement 6 (or lack of one) caused a violation of his constitutional rights. Kocar’s Complaint alleged that an 7 inter-local aid agreement resulted in a violation of his constitutional rights. However, in his 8 Response, he argues that no such agreement existed, and that Stennick should not have 9 responded to the 911 call at all. In truth, the existence or absence of a mutual aid agreement does 10 not matter, because Washington specifically allows agencies to assist one another in these 11 circumstances. See RCW 10.93.070(2) (“In addition to any other powers vested by law, [an 12 officer] may enforce the traffic or criminal laws . . . throughout [this state], under the following 13 enumerated circumstances: . . . (2) in response to an emergency involving an immediate threat to 14 human life or property.”) 15 Kocar has not demonstrated that Stennick or the cities failed to comply with that statute, 16 or that anything about the statute or the cities’ conduct amounted to a constitutional violation. 17 Kocar certainly has not established that a Toledo officer responding in his own city would have 18 responded any differently. 19 Even viewed in the light most favorable to Kocar, Stennick’s Taser use was reasonable 20 under the circumstances. Indeed, it was authorized by Washington statute. See RCW 21 9A.16.020(1) (“The use, attempt, or offer to use force upon or toward the person of another is 22 not unlawful in the following cases: (1) Whenever necessarily used by a public officer in the 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 9 1 performance of a legal duty, or a person assisting the officer and acting under the officer's 2 direction.”). 3 Kocar has not met his burden of demonstrating that a constitutional violation occurred, at 4 all, much less that it was caused by any city’s policy or custom. 5 The Ninth Circuit has long held that mere negligence in training or supervision does not 6 give rise to a Monell claim. Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989). 7 See Monell, 436 U.S. 658. Kocar has not even established negligence, and to establish a 8 constitutional violation he must demonstrate something more. There are no issues of fact about 9 the cause of Kocar’s injuries. Defendants’ Motion as to Kocar’s Monell claim is GRANTED and 10 that claim is DISMISSED WITH PREJUDICE. 11 12 *** Defendants’ Motion for Summary Judgment is GRANTED and Kocar’s claims are 13 DISMISSED WITH PREJUDICE. 14 IT IS SO ORDERED. 15 Dated this 23rd day of July, 2012. 17 A 18 Ronald B. Leighton United States District Judge 16 19 20 21 22 23 24 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 10
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