Case Information
UNITED STATES DISTRICT COURT DISTRICT OF IDAHO
RICHARD TOBIN MOTT, NO. CV-06-063-S-RHW Plaintiff, v. ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT CITY OF McCALL, IDAHO, et al. ,
Defendants.
Before the Court are the McCall Defendants’ Motion for Summary Judgment (Ct. Rec. 28); the Valley County Defendants’ Motion for Summary Judgment (Ct. Rec. 31); Defendant’s Motion to Exclude Plaintiff’s Expert Witness for Untimely Disclosure (Ct. Rec. 33); the McCall Defendants’ Motion for Sanctions for Failure to Comply with Discovery Order (Ct. Rec. 34); and Defendants’ Motion to Strike Memorandum in Opposition to Motion (Ct. Rec. 42).
Plaintiff is bringing a § 1983 action for an unreasonable traffic stop; unreasonable and excessive use of force; illegal detention and arrest; unlawful search; denial of right to place bond and to place a phone call; and denial of right to confer with his counsel. He is also asserting a state law claim of battery and claims based on the Idaho Constitution.
B ACKGROUND
Several important facts in the present case are disputed. In this case, however, there is a videotape of some of the events as they unfolded on the evening in question. Recently, the U.S. Supreme Court allowed courts to view the facts in the light depicted by the videotape. See Scott v. Harris , 2007 WL 1237851 *5 (Apr. 30, 2007). The videotape captured the events from the moment the officers contacted Plaintiff in his vehicle until he was arrested and placed in the patrol car. Thus, for purposes of Defendants’ summary judgment motion, the Court will view the facts in the light most favor to Plaintiff, except for those facts that are depicted by the videotape. In doing so, all reasonable inferences from the factual record have been drawn in favor of Plaintiff.
On February 12, 2004, Plaintiff was driving his vehicle at approximately midnight in the City of McCall, Idaho. It was winter conditions. As Plaintiff came to the intersection of Mill Road and Pine Avenue, he stopped at the stop sign, used turn signal to indicate a right turn, and traveled onto Pine Avenue from Mill Road. his
Defendant David Wright, a former police officer for the City of McCall, Idaho, saw Plaintiff traveling along and it is his contention that Plaintiff failed to use his turn signal and when he stopped, he was partially in the intersection. Based on his observations, he activated his overhead lights and stopped Plaintiff’s vehicle. Upon making contact with Plaintiff, who remained inside his vehicle, Defendant Wright smelled alcohol emanating from the vehicle. He noticed that Plaintiff’s eyes were glassy, bloodshot, and watery. Plaintiff was mumbling his words, and his movements were slow and deliberate. Upon inquiry, Plaintiff admitted to consuming one beer that evening. Defendant Wright returned to the patrol car and requested backup.
Defendant Wright returned to Plaintiff’s vehicle, and instructed Plaintiff to exit the vehicle. Plaintiff politely refused. Defendant Wright then asked again. Plaintiff again refused, but opened the door to his vehicle. At this point, Defendant Jerry Summer arrived at the scene. Defendant Summers then ordered Plaintiff to exit the vehicle and Plaintiff again refused. He asked if he was under arrest and Defendant Summers stated that he would be if he refused to exit the vehicle. At this point, Plaintiff placed his hands on the steering wheel. According to Plaintiff, he put his hands on the wheel to show the officers that he was not going anywhere. The officers interpreted this act as an act of defiance and they pulled Plaintiff out of the vehicle, threw him on the ground, and handcuffed him. After he was handcuffed, Plaintiff was searched. The search uncovered a baggy containing a leafy green substance that was later confirmed to be marijuana. Plaintiff asserts that Defendant Wright planted the marijuana in his pocket. Plaintiff was placed in the back of the patrol car and transported to the McCall police station. Plaintiff had some scratches, a cut lip, and complained that his shoulder was hurting, so he was transported to the hospital. After he was released from the hospital, he was transported to Valley County Jail. He arrived at the Valley County jail at approximately 2:00 a.m. Throughout the encounter with the McCall police officers, Plaintiff refused to take a breathalyzer test.
Once he arrived at the jail, Plaintiff asked to make a phone call. He was told that he would have to wait until after he was booked. He continued to ask to make a phone call throughout the morning. Plaintiff was not booked until 10:34 a.m. However, he was allowed to make a phone call around 9:00 a.m. The deputy at the jail testified that he waited to book Plaintiff because Plaintiff was sleeping and appeared intoxicated. Also, the officer that transported Plaintiff had noted in the log that Plaintiff had “obstructed.” The deputy was the only one on duty, and he did not want to deal with Plaintiff until other staff members could be present. Generally, suspects at the Valley County Jail are not allowed to make phone calls until after they are booked. Additionally, there were four persons who were booked the morning of February 12, 2004. These people were booked in the order that they were received at the jail and Plaintiff was the third person who arrived at the jail to be booked that morning.
Plaintiff was charged with Driving Under the Influence of Alcohol, Possession of Marijuana, and Resisting and Obstructing a Police Officer. The charges were eventually dismissed. [1]
Plaintiff filed this lawsuit on February 10, 2006. He is seeking $5,000,000 for deprivation of civil rights, attorneys fees, medical expenses, towing expense, damages for pain and suffering, removal and expungement of records in criminal databases regarding the arrest, and punitive damages.
D ISCUSSION
1. Standard of Review
Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party had the initial burden of showing the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). If the moving party meets it initial burden, the non- moving party must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial. Id. at 325; Anderson , 477 U.S. at 248.
In addition to showing that there are no questions of material fact, the moving party must also show that it is entitled to judgment as a matter of law. Smith v. University of Washington Law School Cir. 2000). The moving party is entitled to judgment as a matter of law when the non- moving party fails to make a sufficient showing on an essential element of a claim on which the nonmoving party has the burden of proof. Celotex , 477 U.S. at 323.
When considering a motion for summary judgment, a court may neither weigh the evidence nor assess credibility; instead, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson , 477 U.S. at 255.
In this case, Plaintiff failed to provide the Court a statement of facts which are in dispute, as required by LR 7.1(c)(2).
2. McCall Defendants’ Motion for Summary Judgment
In their summary judgment motions, the McCall Defendants assert that the officers who are being sued in their individual capacity are entitled to qualified immunity, and Plaintiff has failed to establish Monell liability against the City of McCall, and Defendant Ralph Appa, who is being sued in his official capacity.
A. Failure to Serve
Defendant Wright and Defendant Appa assert that they have not been served with the summons and complaint. Plaintiff has not responded to Defendants’ arguments, nor has he requested additional time with which to serve these Defendants.
Fed. R. Civ. P. 4(m) requires a district court to grant an extension of time when the plaintiff shows good cause for the delay. Efaw v. Williams , 473 F.3d 1038, 1040 (9 Cir. 2007). Additionally, the rule permits the district court to grant an extension even in the absence of good cause. Id. District courts have broad discretion to extend time for service under Rule 4(m). Id. Factors courts should consider in making extension decisions include whether there is a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service. Id.
Because Plaintiff has failed to respond, and turn, failed to request an extension of time, the Court grants the McCall Defendants’ motion to dismiss the claims asserted against Defendant Wright and Defendant Appa for failure to serve these Defendants.
/// B. Personal Participation
Plaintiff is suing Defendant Ralph Appa in both his individual and official capacity. Plaintiff has not alleged any personal participation on the part of Defendant Ralph Appa. Liability under section 1983 arises only upon a showing of personal participation by the defendant in the alleged constitutional deprivation. Taylor v. List , 880 F.2d 1040, 1045 (9 th Cir. 1989). Plaintiff has not refuted Defendant Appa’s assertion that he did not personally participate in any of the alleged constitutional violations. Summary judgment with regard to any claims for individual liability against Defendant Appa is appropriate.
C. Individual Liability
Section 1983 creates a cause of action against any person who, acting under color of state law, violates the constitutional rights of another person. 42 U.S.C. § 1983; Mabe v. San Bernardino County, Dep’t of Public Soc. Serv. , 237 F.3d 1101, 1106 (9 th Cir. 2001). To succeed on a section 1983 claim, Plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived him or her of a constitutional right . Long v. County of Los Angeles , 442 F.3d 1178, 1185 (9 th Cir. 2006). A public official may be immune from liability for acts performed in his official capacity under either the doctrine of absolute immunity or qualified immunity. Mabe , 237 F.3d at 1106.
In determining whether Defendant is entitled to qualified immunity, the Court must first determine whether Plaintiff has stated a prima facie claim that Defendants violated one of his constitutional rights. Saucier v. Katz , 533 U.S. 194, 198 (2001); Brittain v. Hansen Cir. 2006). Stated another way, courts are required to resolve the question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Scott , 2007 WL 1237851 *3. “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier , 533 U.S. at 201.
If the Court determines that Plaintiff presented a prima facie case, it must then ascertain “whether that right was ‘clearly established’ such that ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Brittain , 451 F.3d at 988 ( quoting Menotti v. City of Seattle , 409 F.3d 1113, 1152 (9 th Cir. 2005). “This inquiry is wholly objective and is undertaken in light of the specific factual circumstances of the case.” Id. ( quoting San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose , 402 F.3d 962, 971 (9 th Cir. 2005).
Here, Plaintiff has failed to meet his burden of showing that any of the remaining McCall Defendants violated his constitutional rights.
(1) Legality of the Initial Traffic Stop If Plaintiff was pulled over without Defendant Wright observing any traffic violations, Defendant Wright’s conduct violated Plaintiff’s Fourth Amendment rights and such conduct would support a section 1983 claim. Bingham v. City of Manhattan Beach , 341 F.3d 939, 946 (9 th Cir. 2003). In viewing the facts in the light most favorable to Plaintiff, that is, that he did not violate any traffic laws, he has alleged a constitutional violation that would survive summary judgment.
Because Plaintiff has failed to serve Defendant Wright, however, his claim fails, because Defendant Wright was the only Defendant that personally participated in the decision to initiate a traffic stop.
( 2) Legality of the Arrest To prevail on his claim for unlawful arrest under section 1983, Plaintiff must show that Defendants Wright and Summers made the arrest without probable cause. Dubner v. City & County of S.F. Cir. 2001). Probable cause exists when, taking together the totality of circumstances known to the arresting officer, a prudent person would conclude that there was a fair probability that the arrested person committed a crime. Gasho v. United States , 39 F.3d 1420, 1428 (9 th Cir.1994). If Defendant had probable cause, Plaintiff’s arrest was lawful regardless of the officer’s subjective motivation. Tatum v. City & County of S.F. Cir. 2006).
Here, Officer Wright stated that when he approached the vehicle, he could smell alcohol, Plaintiff’s eyes were glassy and bloodshot, he was slurring his words, and his movements were slow. Plaintiff does not dispute these facts. These facts support a finding that there was a fair probability that Plaintiff had been driving while intoxicated.
Moreover, under Idaho law, once the officers had reasonable suspicion that Plaintiff was driving while intoxicated, Idaho law permits officers to order him out of his vehicle. State v. Irwin , 137 P.3d 1024 (Id. App. 2006) (holding that once officers possessed reasonable suspicion to detain the driver for traffic violations, they were also entitled to order the driver to get out of her vehicle); State v. Nelson , 8 P.3d 670 (Id. App. 2000)(holding there was articulable suspicion where there was an odor of alcohol coming from the vehicle and the driver admitted he had three or four drinks; officer was justified in requiring the driver to exit his vehicle and perform field sobriety tests); State v. Ferreira , 988 P.2d 700 (Id. App. 1999) (articulable suspicion existed where an odor of alcohol was coming from vehicle plus driver’s admission that he had had two glasses of wine and a glass of cognac; administration of field sobriety test was constitutional).
Similarly, under federal law, officers may exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the occupants posed a threat to his safety. Pennsylvania v. Mimms , 434 U.S. 106, 108-111(1977) (per curiam). The Mimms Court balanced the driver’s personal liberty interest against the serious risk faced by police officers when they approach a person seated in an automobile, even in routine traffic stops, and determined that after a lawful traffic stop, the additional intrusion of ordering a driver out of a vehicle can only be described as de minimis . Id.
Because the officers were justified in asking Plaintiff to step out of the car, his refusal to follow their orders was a violation of Idaho Code § 18-705, which is the statute that makes resisting and obstructing a law enforcement officer a crime; thereby providing a second basis for probable cause to arrest Plaintiff.
Viewing the facts in the light most favorable to Plaintiff, no reasonable jury could find that Defendants Wright and Summers did not have probable cause to arrest Plaintiff for driving while intoxicated, and resisting and obstructing police officers. Because no constitutional violation occurred, it is not necessary to determine whether the law regarding warrantless arrests was clearly established.
(3) Reasonableness of the Search Under the search incident to arrest exception to the Fourth Amendment warrant requirement, officers may search an individual after a lawful custodial arrest. United States v. Robinson , 414 U.S. 218, 226 (1973); Menotti v. City of Seattle Cir. 2005). Because the Court found that the arrest of Plaintiff was lawful, the officers were entitled to search Plaintiff as a search incident to arrest, and no constitutional violation occurred.
(4) Reasonableness of the Use of Force “The use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness.” Saucier , 533 U.S. at 201-02. In determining the need for force, the court must pay “careful attention to the facts and circumstances of [the] 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 [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Conner, 490 U.S. 386, 396 (1989).
The reasonableness of Defendants Wright’s and Summers’s use of force is viewed from the facts as they are depicted on the videotape. The videotape shows the officers grabbing Plaintiff, pushing him down on an ice-covered street, and twisting his arms in order to place handcuffs on his wrist. The video also shows Plaintiff activity resisting having his arms put behind his back. Viewing the facts as depicted on the videotape, no reasonable jury could find that the Defendants’ use of force was unreasonable. Because no constitutional violation occurred, it is not necessary to determine whether the law regarding reasonableness of the use of force was clearly established.
(5) State law claims Because the officers had probable cause to arrest and search Plaintiff, and the use of force was reasonable, the officers actions were lawful, and Plaintiff’s state law claim for battery fails as a matter of law. White v. University of Idaho , 797 P.2d 108 (Id. 1990) (civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive).
The Court adopts the reasoning of Magistrate Mikel H. Williams and finds that there is no private cause of action for an Idaho constitutional law violation.
D. Municipal Liability
Plaintiff is alleging claims against the City of McCall and Defendant Ralph Appa, in his official capacity. [2]
A municipality may be held liable under § 1983 only for constitutional violations occurring pursuant to an official government policy or custom. Monell v. Dep’t of Soc. Services , 436 U.S. 658, 691 (1978). Existence of municipal policy or custom may be established, for purpose of imposing § 1983 liability on a city, by showing: (1) longstanding practice or custom which constitutes standard operating procedure; (2) that decision-making official was, as matter of state law, the final policymaking authority whose edicts or acts may fairly be said to represent official policy in area of decision; or (3) that official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Ulrich v. City and County of S.F. , 308 F.3d 968, 984-85 (9 th Cir. 2002) (internal quotation marks and citations omitted). A municipal policy “may be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded.” Nadell v. Las Vegas Metro. Police Dep’t th Cir. 2001) (internal quotation marks and citation omitted).
In support of their motion, Defendants submitted the policies of the McCall police department, which provide, in part, that probable cause is required to make an arrest. Plaintiff has not refuted this evidence. Plaintiff has failed to show that any alleged violation was the result of a government policy or custom and, therefore, has not met his burden under Celotex of making a sufficient showing on his Monell liability claim.
3. Valley County Defendants
Plaintiff asserts that the Valley County Defendants violated his right to counsel and his right to bail, and also asserts a claim for making false entries into the computer criminal database.
A. Right to Counsel
The right to counsel does not attach until “at or after the initiation of adversay judicial criminal proceedings–whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Strandberg v. City of Helena , 791 F.2d 744, 747(9 Cir. 1986) ( citing Kirby v. Illinois , 406 U.S. 682, 689 (1972)). Because the police were in the process of booking Plaintiff, no critical state of prosecution was implicated; therefore, Plaintiff did not have a Sixth Amendment right to place a phone call to his attorney prior to his booking. See id. As such, Plaintiff’s section 1983 claim for violation of his Sixth Amendment right to counsel fails as a matter of law.
B. Right to Establish Bail
A pretrial detainee has a Fourteenth Amendment right to have a state bail system administered without caprice or discrimination, but he has no absolute right to bail. Kelly v. Springett Cir. 1975). Plaintiff has not asserted that the bail system was administered arbitrarily, capriciously, or in a discriminatory manner. Accordingly, his section 1983 claim for violation of his right to establish bail fails as a matter of law.
C. False Information
Defendants presented evidence that Valley County officials do not enter information into any criminal databases; rather such information is input by employees of the State of Idaho. Plaintiff has not refuted this evidence and has not met his burden under Celetox .
4. Conclusion
Plaintiff has not made a sufficient factual showing that there are questions of material fact that must be resolved by the jury, and has not refuted Defendants’ showing that they are entitled to summary judgment as a matter of law.
Accordingly, IT IS HEREBY ORDERED:
1. McCall Defendants’ Motion for Summary Judgment (Ct. Rec. 28) is GRANTED .
2. Valley County Defendants’ Motion for Summary Judgment (Ct. Rec.
31) is GRANTED .
3. Defendant’s Motion to Exclude Plaintiff’s Expert Witness for Untimely Disclosure (Ct. Rec. 33) is DENIED , as moot.
4. Defendant’s Motion for Sanctions for Failure to Comply with Discovery Order (Ct. Rec. 34) is DENIED .
5. Defendant’s Motion to Strike Memorandum in Opposition to Motion (Ct. Rec. 42) is DENIED , as moot.
6. The District Court Executive is directed to enter judgment in favor of the McCall Defendants and the Valley County Defendants and against Plaintiff.
IT IS SO ORDERED. The District Court Executive is directed to enter this
Order, forward copies to counsel, and close the file.
DATED this 14 day of May, 2007.
s/ Robert H. Whaley
ROBERT H. WHALEY United States District Judge Q:\Idaho Cases\Mott v. City of McCall\sj.wod.wpd
[1] Defendant Wright left his employment with the City of McCall in March 2004, and moved to Carlsbad, New Mexico.
[2] A supervising officer can be held liable in his individual capacity “for his 21 own culpable action or inaction in the training, supervision, or control of his 22 subordinates; for his acquiescence in the constitutional deprivation; or for conduct 23 that showed a reckless or callous indifference to the rights of others.” Watkins v. 24 City of Oakland Cir. 1998) (internal quotation marks, 25 citations and alterations omitted). Plaintiff specifically stated that he was only 26 asserting claims against Defendant Appa in his official capacity, so it is not 27 necessary for the Court to determine whether Defendant Appa can be individually 28 liable as a supervising officer.