Little Butte Property Owners Water Association v Bradley, No. 2:2017cv00162 - Document 94 (E.D. Wash. 2018)
Court Description: ORDER granting 40 Motion for Summary Judgment; granting 57 Motion for Summary Judgment; finding as moot 89 Motion in Limine; finding as moot 91 Motion in Limine. Case CLOSED. Signed by Judge Rosanna Malouf Peterson. (JW, ECF Admin)
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Little Butte Property Owners Water Association v Bradley Doc. 94 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jul 30, 2018 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 9 10 11 LITTLE BUTTE PROPERTY OWNERS WATER ASSOCIATION, a Washington nonprofit corporation, Plaintiff/Counterclaim-Defendant, KEN B. BRADLEY, an individual; Defendant/Counterclaimant, 13 ______________________________ 14 KEN B. BRADLEY, Third-Party Plaintiff, 15 17 18 19 20 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS v. 12 16 NO: 2:17-CV-162-RMP v. CHELAN COUNTY; CHELAN COUNTY SHERIFFS OFFICE; OFFICER DOMINIC MUTCH; OFFICER CHRIS EAKLE; OFFICER MIKE LAMON; and JANE AND OR JOHN DOE OFFICERS 1-10, Third-Party Defendants. ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 1 Dockets.Justia.com 1 BEFORE THE COURT are motions for summary judgment from Plaintiff and 2 Counterclaim Defendant Little Butte Property Water Association (“Little Butte”), 3 ECF No. 40, and from Third Party Defendants Chelan County, Chelan County 4 Sheriff’s Office, and individually named Chelan County Sheriff’s Deputies Mike 5 Lamon, Chris Eakle, and Dominic Mutch (the “Chelan County Defendants”), ECF 6 No. 57. Little Butte seeks summary judgment in its favor for injunctive relief and 7 damages against Defendant and Counterclaimant Ken Bradley. ECF No. 40. The 8 Chelan County Defendants seek an order of dismissal with prejudice of Mr. 9 Bradley’s counterclaims against Little Butte. ECF No. 57. 10 Although Mr. Bradley requested oral argument for Little Butte’s summary 11 judgment motion, the Court finds that it would not be assisted by oral argument from 12 the parties on the matters raised by that motion and declines to schedule the matter 13 for argument.1 Consequently, having reviewed all submitted documents related to 14 the motions, and the relevant law, the Court grants both motions for summary 15 judgment, and enters judgment for the Chelan County Defendants and Little Butte. 16 / / / 17 / / / 18 19 1 20 Little Butte’s counsel “to develop a list of mutually agreeable hearing dates, times, 21 and places,” for oral argument as required by Local Rule 7.1(h)(3)(B)(i). In addition, Little Butte represents that Mr. Bradley’s counsel did not contact ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 2 1 BACKGROUND 2 Mr. Bradley’s Failure to File Controverting Statements of Facts 3 The Chelan County Defendants request that the Court accept as undisputed 4 their statement of facts in support of their motion for summary judgment because 5 Mr. Bradley did not file an opposing statement of material fact as required by Local 6 Rule 56.1, nor any exhibits to rebut the Chelan County Defendants’ statement of 7 material facts. Similarly, Little Butte argues that the two unsigned, undated, and 8 unsworn declarations that Mr. Bradley submitted with his response to Little Butte’s 9 summary judgment motion, one from Mr. Bradley and the other from his counsel, do 10 not comply with 28 U.S.C. § 1746, and do not provide any admissible evidence to 11 controvert Little Butte’s statement of material facts in support of its motion for 12 summary judgment. 13 A party must support an assertion that a fact is genuinely disputed by citation 14 to particular materials in the record, including pleadings, discovery, and affidavits. 15 Fed. R. Civ. P. 56(c). 16 Rule 56(e), Fed. R. Civ. P., provides: 17 If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials— including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order. 18 19 20 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 3 1 In addition, Local Rule (“LR”) 56.1(b) provides: 2 Any party opposing a motion for summary judgment must file with its responsive memorandum a statement in the form prescribed in (a), setting forth the specific facts which the opposing party asserts establishes a genuine issue of material fact precluding summary judgment. Each fact must explicitly identify any fact(s) asserted by the moving party which the opposing party disputes or clarifies. (E.g.: ‘Defendant’s fact #1: Contrary to plaintiff’s fact #1, . . . .’) Following the fact and record citation, the opposing party may briefly describe any evidentiary reason the moving party’s fact is disputed. (E.g.: “Defendant’s supplemental objection to plaintiff’s fact #1: hearsay.”) 3 4 5 6 7 LR 56.1(d) further provides: “In determining any motion for summary 8 judgment, the Court may assume that the facts as claimed by the moving party 9 are admitted to exist without controversy except as and to the extent that such 10 facts are controverted by the record set forth in (b).” 11 A court resolving a motion for summary judgment “may substitute an 12 unsworn declaration for a sworn affidavit if the declaration complies with 28 U.S.C. 13 § 1746.” United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003). Pursuant to 28 14 U.S.C. § 1746, the declaration must be signed under penalty of perjury. The 15 declarations submitted by Mr. Bradley in support of his response to Little Butte’s 16 summary judgment motion, ECF Nos. 66-1 and 66-2, are not signed or dated. In 17 addition, the declarations refer to exhibits that were not attached or otherwise filed, 18 and the declarations themselves do not provide the information necessary to 19 determine whether the declarations were made on Mr. Bradley’s and his counsel’s 20 personal knowledge. See Fed. R. Civ. 56(c)(4). 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 4 1 There has been no request from Mr. Bradley to supplement the record, and the 2 Court finds no justifiable reason to extend Mr. Bradley an opportunity to do so, 3 particularly given that the Court granted him an extended opportunity to respond to 4 the Chelan County Defendants’ motion for summary judgment. See ECF No. 68. 5 Therefore, the Court deems the facts as presented by the Chelan County Defendants 6 and Little Butte to be undisputed. 7 Outset of Dispute 8 Little Butte delivers potable water to 32 residential “user members” and “a 9 10 few nonmember residential users,” as well as two commercial establishments. ECF No. 46 at 2. 11 Mr. Bradley owns residential property outside of Chelan. The previous 12 owners of the property sought a judicial determination of the property’s relationship 13 with the Little Butte water system. See ECF No. 46 at 2, 7–10. The result of that 14 litigation was a judgment, issued in 1982, finding that Little Butte is obligated to 15 provide water to the residential property and, in return, the property owners are 16 required to pay the fees and assessments associated with water service from Little 17 Butte. Id. 18 Little Butte’s potable water delivery system was developed in approximately 19 1960 and involves pumping water from Lake Chelan through “a pipeline easement 20 that runs over 3000 linear feet . . . to the [Little Butte] pump station, water filtration 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 5 1 plant, and storage tanks.” ECF No. 46 at 2. Mr. Bradley’s property is subject to a 2 portion of that pipeline easement. 3 By summer 2013, the Little Butte water system had begun to deteriorate and 4 fail, including a leak around July 2013 that caused mud to run onto a local highway. 5 On or around September 21, 2013, Little Butte determined that it would need to 6 replace portions of the system. 7 The replacement work was scheduled to begin on October 4, 2013, with an 8 anticipated nineteen work days needed to complete the project. However, Mr. 9 Bradley inhibited Little Butte’s contractor’s access to his property on October 4. In 10 a letter that indicates on its face that it was emailed to Little Butte on October 4, Mr. 11 Bradley listed fifteen items that would be required for him to allow access to his 12 property for the work on the pipeline. ECF No. 46 at 12. On October 8, 2013, Mr. 13 Bradley conveyed to Little Butte, through a representative, that he would allow 14 access to his property once he received proof of insurance and a copy of the 15 easement from Little Butte. ECF No. 46 at 3. Little Butte asserts that it provided 16 that documentation to Mr. Bradley on October 10, 2013. ECF Nos. 46 at 3; 50 at 2. 17 However, Mr. Bradley did not allow access, and work on the pipeline replacement 18 stopped on October 8, 2013. ECF No. 46 at 4. Contractor Elite Excavation & 19 Services notified Little Butte that while standing by waiting to complete the work on 20 the pipeline, the company would bill the water association for the costs associated 21 with retaining the specialty equipment in the area. ECF No. 54 at 3. ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 6 1 On approximately October 22, 2013, Little Butte filed a lawsuit against Mr. 2 Bradley in Chelan County Superior Court, and, on October 24, 2013, the court 3 issued a temporary restraining order (“TRO”) authorizing immediate access for 4 Little Butte and its contractor to the pipeline and directing removal of “any 5 obstructions such as vehicles, locks or other objects that may interfere with the 6 replacement of that pipeline.” ECF No. 42-3 at 2. 7 The same day that the restraining order was entered, Elite Excavation “re- 8 mobilized” its crews to restart the pipeline. ECF No. 54 at 3. The contractor built 9 an access road along the route of the pipeline across Mr. Bradley’s property to 10 facilitate access to a location between Mr. Bradley’s property and the shoreline of 11 Lake Chelan, where Elite Excavation was constructing a booster pump. ECF No. 41 12 at 7–8. 2 13 14 15 16 17 18 19 20 21 2 Little Butte repeatedly cites and refers to the “November 21, 2013 Second Declaration of Paul McNally” and the “April 4, 2014 Third Declaration of Paul McNally,” see, e.g., ECF No. 40 at 2, but the Court does not find a copy of those declarations in the summary judgment record. See LR 56.1(a)(“The specific portions of the record relied upon shall be attached to the statement of material facts.”). The Court instead finds the October 22, 2013 declaration of Little Butte President Paul McNally filed three separate times at ECF Nos. 46, 47, and 48. However, as noted above, Mr. Bradley admitted the facts as claimed by both Little ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 7 1 On November 11, 2013, Elite Excavation invoiced Little Butte in the amount 2 of $23,868.00 for the costs incurred during the 18-day delay in the pipeline 3 construction “due to the . . . actions caused by Mr. Bradley.” ECF No. 54 at 4. 4 Little Butte paid the invoice on November 14, 2013. ECF No. 54 at 4. 5 Throughout fall 2013, Chelan County Sheriff’s Deputies responded to Mr. 6 Bradley’s property on five or six occasions in response to claims that Mr. Bradley 7 was interfering with work related to replacing the pipeline. ECF No. 59-1 at 12–15. 8 Mr. Bradley also called law enforcement when individuals from Little Butte came to 9 the property. ECF No. 59-1 at 16. 10 Before construction, a professional line locator had identified the location of 11 the original Little Butte pipeline across Mr. Bradley’s property. ECF No. 52 at 3. 12 Elite Excavation followed the line location while performing the pipeline 13 replacement work. See ECF Nos. 42-7 at 2; 43 at 9. Mr. Bradley and his 14 acquaintances insisted that the contractor’s employees were digging in the wrong 15 place. ECF Nos. 53 at 2; 55 at 2. 16 On approximately November 19, 2013, Mr. Bradley refused the contractor 17 access to continue work on the remaining feet of pipeline crossing Mr. Bradley’s 18 19 Butte and the Chelan County Defendants “without controversy.” LR 56.1(d). 20 Moreover, Little Butte provided the missing declaration to the Court, in the context 21 of pre-trial motions in limine. See ECF No. 88 (Exhibit 209). ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 8 1 property. ECF Nos. 41 at 8–9; 42-7 at 2. On November 20, 2013, Elite Excavation 2 called for a “line locate” to identify Mr. Bradley’s personal utilities in order to avoid 3 them while replacing the pipeline across his property. ECF No. 41 at 9. However, 4 Mr. Bradley refused the line locator access to his property. Id. 5 The next day, Little Butte returned to Chelan County Superior Court to move 6 for an order finding Mr. Bradley in contempt for violating the temporary injunction, 7 arguing that “time [was] of the essence” in completing the work because “the onset 8 of winter could stop construction.” ECF No. 42-7 at 3; see also ECF No. 42-6 at 1– 9 2. On November 25, 2013, the Chelan County Court Commissioner found Mr. 10 Bradley in contempt of the TRO; ordered the Chelan County Sheriff to incarcerate 11 Mr. Bradley, and any other individual blocking access to Mr. Bradley’s property, 12 until Mr. Bradley allowed access to his property; and sanctioned Mr. Bradley in the 13 amount of the reasonable attorney’s fees that Little Butte incurred in moving for 14 contempt, $2000. ECF No. 42-9. 15 On August 15, 2014, the Chelan County Superior Court entered judgment 16 against Mr. Bradley and in favor of Little Butte for $23,868 for the costs resulting 17 from a delay in construction, plus attorney fees and taxable costs in the amount of 18 $2,665. ECF No. 42-11. Shortly thereafter, the same court ordered supplemental 19 proceedings in the form of a judgment debtor exam to allow Little Butte to ascertain 20 what property Mr. Bradley may have had that could satisfy the judgment. ECF No. 21 42-12. ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 9 1 Execution of Civil Warrant 2 On approximately September 26, 2014, when Mr. Bradley did not appear at 3 the judgment debtor exam, upon motion by Little Butte, the superior court issued a 4 bench warrant for Mr. Bradley, setting bail at $27,000, and awarding Little Butte 5 $702.50 for additional attorney fees. ECF Nos. 42-14; 42-15. 6 The evidence supports that Chelan County law enforcement officers, 7 pursuant to their “experience and training,” contact an independent agency, 8 RiverCom, before serving a warrant to verify that the warrant still is valid. ECF 9 Nos. 60 at 2; 61 at 2; 62 at 2. RiverCom does not indicate to officers whether the 10 warrant is civil or criminal in nature. Id. After receiving confirmation that the 11 warrant was still valid, Chelan County Deputies Chris Eakle, Dominic Mutch, and 12 Mike Lamon executed the warrant on October 13, 2014. ECF Nos. 60 at 2; 61 at 2; 13 62 at 2. 14 Deputies Eakle, Mutch, and Lamon parked their patrol vehicles at the end of 15 Mr. Bradley’s long gravel driveway “for officer safety purposes[.]” ECF Nos. 60 at 16 2–3; 61 at 2–3; 62 at 2–3. The deputies walked around Mr. Bradley’s residence 17 before they knocked and announced their presence. Id. Deputy Mutch recalled, 18 “While in the process of determining whether there were any officer safety issues, I 19 saw Mr. Bradley at the east end of the residence in keeping with my experience and 20 training[.]” ECF No. 61 at 3. When Deputy Mutch shined his light into Mr. 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 10 1 Bradley’s residence, Mr. Bradley “didn’t say anything at that point and just stepped 2 away from the window.” Id. 3 Having observed Mr. Bradley inside the residence, the deputies knocked on 4 the door, announced their presence, and advised Mr. Bradley that they had a warrant. 5 ECF Nos. 60 at 3; 60-1 at 3. They continued to knock and attempt to communicate 6 with Mr. Bradley for approximately twenty (according to Deputy Mutch) to thirty 7 minutes (according to Deputy Eakle). ECF Nos. 60-1 at 3; 61-1 at 4; see also ECF 8 No. 60 at 3 (Deputy Eakle recalled, “Because we knew that Mr. Bradley was inside 9 we knocked on the residence for an extended period of time.”). 10 The three deputies entered Mr. Bradley’s residence, after receiving their 11 supervisor’s authorization. ECF Nos. 60 at 3; 60-1 at 3; 62 at 3. The door that 12 Deputy Eakle forced open to enter the house had been blocked by a couch. ECF 13 Nos. 61 at 3; 61-1 at 4, 9. Mr. Bradley was lying face-up in the hallway. ECF Nos. 14 60-1 at 3; 61 at 3; 62 at 3. Although the deputies believed Mr. Bradley to be 15 pretending to be unconscious, they examined Mr. Bradley to rule out the possibility 16 that he was having a medical emergency. ECF Nos. 60 at 4; 60-1 at 3; 61 at 3. Mr. 17 Bradley did not display any difficulty breathing. ECF Nos. 61 at 3; 62 at 3. Deputy 18 Lamon performed a sternum rub to see whether Mr. Bradley would react or wake up. 19 ECF No. 62 at 4. Deputy Lamon also performed a “drop test” in which he lifted Mr. 20 Bradley’s arm up over Mr. Bradley’s face and dropped the arm. Id. The rationale of 21 the test is that an unconscious person’s arm will drop on his face. Id. Mr. Bradley ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 11 1 moved his arm each time Deputy Lamon dropped it. Id.; see also ECF No. 60 at 3. 2 Deputy Eakle also observed Mr. Bradley flinch after Deputy Mutch made a loud 3 noise. ECF No. 60 at 4. 4 The sternum rub and the arm drops were the only physical contact the 5 deputies had with Mr. Bradley. ECF Nos. 60 at 3; 62 at 4. They did not display or 6 deploy their Tasers, or their guns, at any time during the interaction. ECF Nos. 60 at 7 3; 61 at 3. 8 Despite concluding that Mr. Bradley was faking his condition, the deputies 9 summoned medical assistance, who transported Mr. Bradley to the hospital. ECF 10 Nos. 60 at 4; 62 at 4. Deputy Eakle accompanied Mr. Bradley to the hospital, 11 where, according to Deputy Eakle, the attending physician told the deputy that “he 12 did not have time to deal with people faking it and Mr. Bradley was to be released.” 13 ECF No. 60 at 4. When the medical examination was completed without any 14 problems found, Deputy Eakle transported Mr. Bradley to the Chelan County Jail. 15 Id.; see also ECF No. 60-1 at 3. 16 Based on Mr. Bradley’s deposition, Mr. Bradley denies knowing that there 17 was law enforcement on his property until he was at the hospital. See ECF No. 59-1 18 at 19–22. Mr. Bradley asserted at deposition that he thought people had come onto 19 his property the night of October 13, 2014, to attack him. ECF No. 59-1 at 20. He 20 recalled peering through blinds on a sliding door to find a “bright light shined in his 21 face” and hearing someone yell “Bradley, we’re going to get you.” ECF No. 59-1 at ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 12 1 19–20. He described next hearing “pounding all around the house,” and then 2 regaining consciousness briefly on the floor of his house, unable to talk, while 3 people who had “gained access to his house . . . kept on inflicting pain on [him].” 4 ECF No. 59-1 at 20–21. Plaintiff recalled a “sharp jolt” of pain as if he were 5 “tasered or something.” ECF No. 59-1 at 21. Mr. Bradley recalled that he did not 6 speak to the law enforcement officers and denies that he was able to see throughout 7 the encounter. ECF No. 59-1 at 23–24, 27. 8 However, Mr. Bradley alleges that his only awareness of who was at his 9 house, or the number of people present, on October 13 is based on his review of the 10 police reports. ECF No. 59-1 at 25. From the time Mr. Bradley saw somebody 11 outside of his house, Mr. Bradley attests that his next recollection of any visual 12 memory was seeing the lit up instrument panel from “the back of a police vehicle[.]” 13 ECF No. 59-1 at 26. 14 Relevant Procedural History 15 On January 9, 2017, shortly before this matter was removed to this Court, Mr. 16 Bradley sought to vacate the August 15, 2014 final judgment for the costs resulting 17 from a delay in construction on the ground that service of process was defective. 18 The superior court granted the motion and vacated the judgment, specifying that 19 “[a]ll subsequent orders are void and unenforceable.” ECF No. 70-1 at 2. Little 20 Butte does not dispute that the service of process for the complaint that the water 21 association filed on October 22, 2013, was defective. ECF No. 69 at 6. However, ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 13 1 Little Butte maintains that Mr. Bradley received sufficient notice of the TRO and 2 that the TRO, entered nine months before the judgment that was vacated, remains in 3 effect. ECF No. 69 at 6. 4 On January 17, 2017, Little Butte amended its complaint in Chelan County 5 Superior Court, seeking a permanent injunction against Mr. Bradley, an award of 6 $23,868 in delay damages, and a judgment memorializing the $2000 in attorney fees 7 that the superior court had ordered when it found Mr. Bradley in contempt on 8 November 26, 2013. ECF No. 1-1 at 19–25. On February 10, 2017, Mr. Bradley 9 answered Little Butte’s complaint and filed counterclaims against Little Butte and 10 cross-claims against the Chelan County Defendants. In Mr. Bradley’s counter- and 11 cross-claim complaint, he alleged that the deputies’ pounding on the door “triggered 12 a flash back to his service in the military.” 3 ECF No. 7 at 12. Mr. Bradley also 13 alleges that he was bruised during his arrest. Id. 14 Mr. Bradley has not requested any training files or other training documents 15 from the Chelan County Defendants. See ECF No. 59 at 2. Mr. Bradley did retain 16 as an expert an individual named Susan Peters, 4 who opined that the reasonable 17 standard of training for Washington law enforcement officers would be to 18 3 19 20 21 Mr. Bradley was honorably discharged from service in the U.S. Army and receives no benefits related to his service. ECF No. 59-1 at 7. 4 Ms. Peters’ credentials and work experience are not in the record. ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 14 1 differentiate between civil and criminal warrants. ECF No. 59-1 at 36. Ms. Peters 2 further opined that the law enforcement officers involved in arresting Mr. Bradley 3 should have known that they could not forcibly enter a residence to serve a civil 4 warrant. Id. at 42. However, Ms. Peters acknowledged that she was not aware of 5 whether the Washington State Patrol Academy trains officers about whether they 6 can forcibly enter a residence to serve a civil warrant, and she did not know whether 7 any county in Washington other than King County trains its offers regarding the 8 legality of forcing entry to serve a civil warrant. Id. at 37–40. 9 With respect to Little Butte, Mr. Bradley denied that any documents submitted 10 by Little Butte in its lawsuit originating in state court showed the location of any 11 easement across Mr. Bradley’s property. ECF No. 7 at 2. Mr. Bradley also denied a 12 role in Little Butte incurring costs of $2500 per day during the construction delay. 13 Id. Mr. Bradley claims that Little Butte damaged his property “in some areas over 14 120 feet wide” while installing a new line “between 20 to 80 feet away from the 15 original line.” Id. at 8. Mr. Bradley asserts that Little Butte did not replace fencing 16 that its contractor tore down, and that the work on Mr. Bradley’s property resulted in 17 slope damage and weed problems that have not been repaired. Mr. Bradley alleges 18 that Little Butte was aware that it had defectively served the original complaint. Id. 19 at 10. In addition, Mr. Bradley asserts that Little Butte injured him by refusing to 20 provide water service to Mr. Bradley’s property. Id. at 11. 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 15 1 LEGAL STANDARD 2 Summary judgment is appropriate when “the movant shows that there is no 3 genuine dispute as to any material fact and the movant is entitled to judgment as a 4 matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 5 317, 322 (1986). A genuine dispute exists where “the evidence is such that a 6 reasonable jury could return a verdict for the nonmoving party.” Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect 8 the outcome of the suit under the governing law.” Id. “Factual disputes that are 9 irrelevant or unnecessary will not be counted.” Id. 10 Summary judgment is “not a disfavored procedural shortcut,” but is instead 11 the “principal tool[ ] by which factually insufficient claims or defenses [can] be 12 isolated and prevented from going to trial with the attendant unwarranted 13 consumption of public and private resources.” Celotex, 477 U.S. at 327. The 14 moving party bears the initial burden of demonstrating the absence of a genuine 15 issue of material fact. See Celotex, 477 U.S. at 323. If the moving party meets this 16 challenge, the burden shifts to the nonmoving party to “set out specific facts 17 showing a genuine issue for trial.” Id. at 324 (internal quotations omitted). “A non- 18 movant’s bald assertions or a mere scintilla of evidence in his favor are both 19 insufficient to withstand summary judgment.” F.T.C. v. Stefanchik, 559 F.3d 924, 20 929 (9th Cir. 2009). 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 16 1 In deciding a motion for summary judgment, the court must construe the 2 evidence and draw all reasonable inferences in favor of the nonmoving party. See 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court will not 4 presume missing facts, and non-specific facts in affidavits are not sufficient to 5 support or undermine a claim. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 6 (1990). 7 Mr. Bradley’s Claims against the Chelan County Defendants 8 As a preliminary matter, Mr. Bradley concedes that dismissal of his claim for 9 negligent infliction of emotional distress is proper. ECF No. 71 at 2. His remaining 10 claims against the Chelan County Defendants arise under 42 U.S.C. § 1983 for 11 violations of the Fourth and Fourteenth Amendments and under Washington state 12 law: (1) excessive force; (2) Monell liability for failure to train; (3) Monell liability 13 for a custom or policy that permits excessive force and/or deliberate indifference to 14 the rights of individuals with mental health issues; (4) negligence; and (5) intentional 15 infliction of emotional distress. ECF No. 7. 5 16 17 Parties can seek relief under 42 U.S.C. § 1983 against any “person” who, “under color of state law, deprives another of rights protected by the U.S. 18 19 5 20 Defendants and Little Butte based on the Washington State Constitution. ECF No. 21 65 at 22. The Court previously dismissed Mr. Bradley’s claims against the Chelan County ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 17 1 Constitution.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). Mr. 2 Bradley asserts that the Chelan County Defendants violated his constitutional rights, 3 and bases his state law claims on the same factual allegations that underlie his 4 section 1983 claims. 5 Section 1983: Excessive Force by the Deputies in their Individual Capacity 6 The Fourth Amendment of the U.S. Constitution proscribes “unreasonable” 7 searches and seizures, and that proscription applies to state officials through the 8 Fourteenth Amendment. U.S. Const. amends. IV and XIV; Lavan v. City of Los 9 Angeles, 693 F.3d 1022, 1027 (9th Cir. 2012). 10 The reasonableness of an arrest or other seizure is evaluated in terms of 11 whether the involved officers’ use of force was “objectively reasonable in light of 12 the facts and circumstances confronting [the officers], without regard to their 13 underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 398 (1989). 14 “The ‘reasonableness’ of a particular use of force must be judged from the 15 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 16 hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must 17 embody allowance for the fact that police officers are often forced to make split- 18 second judgments—in circumstances that are tense, uncertain, and rapidly 19 evolving—about the amount of force that is necessary in a particular situation.” Id. 20 at 396–97; Fisher v. City of San Jose, 558 F.3d 1069, 1081 (9th Cir. 2009) (en banc). 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 18 1 Mr. Bradley’s only allegation of force used against him in the course of his 2 arrest was that the officers’ knocking on the door triggered psychological symptoms 3 related to his prior military service. The undisputed facts, even with all reasonable 4 inferences drawn in favor of Mr. Bradley, indicate that the only time that any of the 5 deputies placed their hands or otherwise had contact with Mr. Bradley was when 6 they were trying to determine whether he actually was unconscious. In these facts, 7 the Court finds no material question barring a conclusion that the deputies’ actions 8 with respect to the use of force were objectively reasonable at the time. See 9 Graham, 490 U.S. at 397. Therefore, Mr. Bradley’s claim of excessive force against 10 11 12 the individual deputies fails. Section 1983: Excessive Force against Chelan County and the Chelan County Sheriff’s Office based on Monell Liability 13 To successfully advance a claim under section 1983 against Chelan County or 14 the Chelan County Sheriff’s Office, Mr. Bradley must show that an agency policy or 15 custom caused his complained-of constitutional injury. See Monell v. New York City 16 Dep’t of Social Services, 436 U.S. 658, 690–91 (1978) (determining that a local 17 government entity may be held liable for a civil rights violation caused by a law 18 enforcement officer upon a showing that the entity’s decision makers adopted a 19 policy, custom, or practice that caused the violation and/or acted with deliberate 20 indifference to known consequences, and the indifference was a moving force 21 behind the deprivation). A theory of respondeat superior or vicarious liability is not ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 19 1 available against municipal or other local government entities under section 1983. 2 Id. at 694; see also Canton v. Harris, 489 U.S. 378, 385 (1989) (allowing municipal 3 liability on the basis of a failure to train only if policymakers “were on actual or 4 constructive notice of the need to train”); Collins, 503 U.S. at 120–21. 5 The Chelan County Defendants argue that Mr. Bradley’s claims fail on two 6 bases. See ECF No. 72 at 8. First, Mr. Bradley does not refer to any training that 7 the deputies at issue received, much less show that any such training was deficient. 8 Id. Second, Mr. Bradley did not show that Chelan County was deliberately 9 indifferent to the need to train subordinates or that the lack of training caused a 10 11 constitutional harm or deprivation of rights. Id. Mr. Bradley responds that “[t]he specifics as to how Chelan county [sic] failed 12 to train its officers are not needed when they are so apparent from the facts.” ECF 13 No. 71 at 3. Mr. Bradley argues that the failure to train Chelan County officers to 14 differentiate between civil and criminal warrants or failure to implement a system 15 that automatically differentiates between the two types of warrants for law 16 enforcement officers rises to the level of deliberate indifference. ECF No. 71 at 3–4. 17 Section 10.31.040 of the Revised Code of Washington (“RCW”) allows law 18 enforcement officers, after announcing their “office and purpose,” to forcibly enter a 19 dwelling to execute a criminal arrest warrant. In 2004, the Washington State 20 Supreme Court interpreted RCW 10.31.040 to mean that officers may not forcibly 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 20 1 enter dwellings to execute civil warrants. State v. Thompson, 151 Wn.2d 793 2 (Wash. 2004). 3 However, Mr. Bradley does not offer any authority or factual support for 4 premise that any “failure” by the deputies to adhere to Thompson is based on the 5 County and Sheriff’s Office Defendants’ policies or failure to train. Most 6 importantly, Mr. Bradley presents no theory as to how failure to train officers to 7 abide by the Washington Supreme Court’s ruling in Thompson, even if there were 8 facts to support that proposition, caused a Fourth Amendment violation. Federal 9 precedent applying the Fourth Amendment does not prohibit forcible entry into a 10 house to execute a civil arrest warrant; the case law does not differentiate between 11 the civil versus criminal nature of a bench warrant. United States v. Gooch, 506 12 F.3d 1156, 1158–59 (9th Cir. 2007), cert. denied, 552 U.S. 1331 (2008) (finding that 13 an arrest warrant by itself gives the government authority to enter a residence if 14 “there is reason to believe the suspect is within”); see also Payton v. New York, 445 15 U.S. 573, 603 (1980) (an arrest warrant suffices for entry by the police into the home 16 of the person they wish to arrest). Washington law, too, recognizes that issuing civil 17 warrants for the arrest of defendants who do not appear in court comports with the 18 Fourth Amendment. See State v. Sleater, 194 Wn. App. 470, 476 (Wash. App. Div. 19 3, 2016). 20 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 21 1 Mr. Bradley has failed to make a prima facie case for his Monell claims. 2 Therefore, the Court grants Chelan County Defendants’ motion for summary 3 judgment on Mr. Bradley’s section 1983 claims, in their entirety. 4 Negligence 5 In defense of his negligence claim against the Chelan County Defendants, Mr. 6 7 8 Bradley writes, cryptically: Bradley does not have to recall events if all the events were based on a trespass to his property and the police documented the damage. While he may not have had substantial physical harm to himself, his house was damaged, and his privacy was unlawfully invaded. 9 ECF No. 71 at 9. 10 The elements of a negligence claim include duty, breach, causation, and 11 injury. Keller v. City of Spokane, 146 Wn.2d 237, 242 (Wash. 2002). Liberally 12 construing Mr. Bradley’s negligence claim, his theory of liability seems to mirror the 13 theory underlying his failure-to-train and deliberate indifference claims under 14 Monell, namely that the Chelan County Defendants were per se negligent in forcibly 15 entering Mr. Bradley’s house to execute a civil warrant. However, Mr. Bradley fails 16 to provide any authority to support that such actions are per se negligent or any 17 authority to define the duty that the deputies allegedly breached. Nor does Mr. 18 Bradley provide any factual support for his assertion that there was damage to his 19 property from the deputies’ actions. Accordingly, Mr. Bradley’s negligence claim is 20 dismissed. 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 22 1 Intentional Infliction of Emotional Distress 2 Mr. Bradley argues that the deputies “engaged in extreme and outrageous 3 conduct by unlawfully trespassing on Mr. Bradley’s home” and “[b]reaking down 4 the doors in his house and hauling him off to prison without any proper authority.” 5 ECF No. 71 at 9. He continues, “There is no objective reason for them to have 6 entered his house.” Id. 7 However, Washington’s tort of intentional infliction of emotional distress, or 8 outrage, requires proof of much more than Mr. Bradley’s conclusory 9 pronouncements offer. Three elements are essential: “(1) extreme and outrageous 10 conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual 11 result to plaintiff of severe emotional distress.” Kloepfel v. Bokor, 149 Wn.2d 192, 12 195–96 (Wash. 2003). Liability attaches only to conduct that is “so outrageous in 13 character and so extreme in degree, as to go beyond all possible bounds of decency, 14 and to be regarded as atrocious, and utterly intolerable in a civilized community.” 15 Grimsby v. Samson, 85 Wn.2d 52, 59 (Wash. 1975) (internal quotation omitted) 16 (emphasis in original). 17 Here, the deputies knocked on Mr. Bradley’s door and waited an extended 18 amount of time before entering, then summoned medical assistance, despite 19 suspecting Mr. Bradley of faking unconsciousness, before placing Mr. Bradley 20 under arrest pursuant to what the deputies had been informed and reasonably 21 believed was a valid warrant. Such actions are not outrageous in character nor ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 23 1 extreme in degree in the context of execution of arrest warrants. Moreover, Mr. 2 Bradley failed to substantiate any symptoms of severe emotional distress. 3 Therefore, Mr. Bradley’s claim of outrage is dismissed. 4 Little Butte’s Claims for Injunctive Relief and Damages 5 “A suit for an injunction is an equitable proceeding addressed to the sound 6 discretion of the trial court, to be exercised according to the circumstances of each 7 case.” Steury v. Johnson, 90 Wn. App. 401, 405 (Wash. App. Div. 3, 1998). To 8 secure a permanent injunction, a party must show that: (1) it has “a clear legal or 9 equitable right”; (2) it has “a well-grounded fear of immediate invasion of that 10 right”; and (3) “the acts complained of are either resulting in or will result in actual 11 and substantial injury to him.” SEIU Local 925 v. Univ. of Wash., 2018 Wash. App. 12 LEXIS 1332 at *18 (Wash. App. Div. 1, Jun. 11, 2018) (citing Fed. Way Family 13 Physicians, Inc. v. Tacoma Stands Up for Life, 106 Wn.2d 261, 265 (Wash. 1986)). 14 The evidence in the summary judgment record establishes that the easement 15 allows Little Butte’s right of access to Mr. Bradley’s property. Mr. Bradley’s 16 repeated interference with Little Butte’s access to the property in fall 2013, even 17 after the superior court issued a temporary restraining order, supports Little Butte’s 18 assertion that Mr. Bradley again may invade its right to access the property in the 19 future. Furthermore, the record shows that Mr. Bradley intentionally interfered with 20 Little Butte’s access to the easement, and that it was Mr. Bradley’s intentional 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 24 1 interference that resulted in $23,868 in damages incurred during the 18-day delay. 6 2 Therefore, an injunction is appropriate. 3 Mr. Bradley’s Claims against Little Butte 4 Section 1983: Fourth and Fourteenth Amendments 5 Mr. Bradley also named Little Butte as a defendant in his section 1983 claims, 6 alleging that Little Butte improperly obtained a bench warrant from Chelan County 7 Superior Court, “acted in conjunction with the local sheriff’s office to serve” Mr. 8 Bradley, and “facilitated obtaining a civil bench warrant for Mr. Bradley’s arrest 9 despite knowing or should have known [sic] the court did not have jurisdiction.” 10 ECF No. 1-1 at 43. Mr. Bradley’s allegations continued, “Under this warrant, [Little 11 Butte] condoned the actions of the officers who entered Mr. Bradley’s residence 12 despite not having authority under a civil bench warrant.” ECF No. 1-1 at 44. 13 For a private actor to be liable under section 1983, Little Butte must have 14 “engaged in state action under color of law and thereby deprived a plaintiff of some 15 right, privilege, or immunity protected by the Constitution or the laws of the United 16 States.” Brunette v. Human Soc’y, 293 F.3d 1205, 1209 (9th Cir. 2002) (citing 17 Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc)). “Whether a 18 19 6 20 claim for the $2000 in attorney fees raised by the January 17, 2017 amended 21 complaint. The Court notes that Little Butte abandons in its summary judgment motion its ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 25 1 private party engaged in state action is a highly factual question.” Id. (citing 2 Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983)). To test whether a private 3 party is engaged in “joint action” with a government entity or its agents, courts ask 4 whether the private party was a “willful participant” in any activity that deprived an 5 individual of his constitutional rights and whether the private party’s actions were 6 “inextricably intertwined” or demonstrated “substantial cooperation” with the 7 government entity or its agents. See id. at 1211 (internal quotations omitted). 8 Mr. Bradley neither sufficiently pleaded nor sufficiently defended at summary 9 judgment his claim that Little Butte acted under color of law to deprive him of a 10 constitutional right. There is a complete lack of evidence among the undisputed 11 facts that Little Butte was inextricably intertwined with the Chelan County 12 Defendants or willfully participated in any of their actions. Moreover, the Chelan 13 County Defendants’ actions themselves do not amount to constitutional violations, 14 as discussed above. Therefore, Mr. Bradley’s section 1983 claims against Little 15 Butte fail as a matter of law. 16 State Destruction of Property, Trespass, and Condemnation Claims 17 Washington’s trespass statute provides for liability for three types of conduct 18 by a person who goes onto the land of another: “(1) removing valuable property 19 from the land, (2) wrongfully causing waste or injury to the land, and (3) wrongfully 20 injuring personal property or real estate improvements on the land.” Ofuasia v. 21 Smurr, 198 Wn. App. 133, 147 (Wash. App. Div. 2, 2017) (quoting Clipse v. ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 26 1 Michels Pipeline Constr., Inc., 154 Wn. App. 573 (Wash. App. Div. 1, 2010) 2 (emphasis in original) (internal quotation marks removed)); see also Revised Code 3 of Washington (“RCW”) 4.24.630(1). Under the statute, “a person acts ‘wrongfully’ 4 if the person intentionally and unreasonably commits the act or acts while knowing, 5 or having reason to know, that he or she lacks authorization to so act.” RCW 6 4.24.630(1). 7 Mr. Bradley has not come forth with any evidence at summary judgment to 8 support that Little Butte or its agents came onto or damaged his property “knowing, 9 or having reason to know” that they lacked authorization to so act. Nor has he 10 provided any evidence substantiating his claimed damages. Consequently, summary 11 dismissal of Mr. Bradley’s claim under Washington’s trespass statute is appropriate. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. Little Butte’s Motion for Summary Judgment, ECF No. 40, is 14 15 16 17 GRANTED. 2. The Chelan County Defendants’ Motion for Summary Judgment, ECF No. 57, is GRANTED. 3. Judgment shall be entered for Little Butte, against Mr. Bradley, in the 18 amount of $23,868.00 in damages, in the amount paid by Little Butte to its 19 contractor for the 18-day construction delay caused by Mr. Bradley’s 20 actions, ECF No. 54 at 3–4, and undisputed by Mr. Bradley with any 21 evidence to raise a genuine issue of material fact. ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 27 1 4. The Court further grants Little Butte equitable relief in the form of a 2 permanent injunction barring Mr. Bradley from interfering with Little 3 Butte’s exercise of its easement in the future. 4 5. With respect to Mr. Bradley’s claims against Little Butte and the Chelan 5 County Defendants, judgment shall be entered for Little Butte and the 6 Chelan County Defendants, and against Mr. Bradley, without any costs to 7 any party. 8 9 10 11 12 13 14 6. All pending hearings, including the trial date, and accompanying deadlines in this matter are STRICKEN. Any remaining motions are DENIED AS MOOT. The District Court Clerk is directed to enter this Order, enter judgment as directed, provide copies to counsel, and close this case. DATED July 30, 2018. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 15 16 17 18 19 20 21 ORDER GRANTING SUMMARY JUDGMENT MOTIONS ~ 28
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