John v. Berry

Citation469 F.Supp.2d 922
Decision Date08 December 2006
Docket NumberNo. CO5-5694RJB-KLS.,CO5-5694RJB-KLS.
CourtU.S. District Court — Western District of Washington
PartiesLewis JOHN, Plaintiff, v. Deputy Mark C. BERRY, Deputy Kristain Nordstrom, Deputy Hardesty, Defendants.

Lewis John, Aberdeen, WA, Pro se.

Daniel R. Hamilton, Pierce County Prosecuting Attorney's Office, Tacoma, WA, for Defendants.


BRYAN, District Judge.

The Court, having reviewed defendants' converted motion for summary judgment (Dkt. 24 and 31), the Report and Recommendation of United States Magistrate Judge Karen L. Strombom, objections to the Report and Recommendation (Did. 46), and the remaining record, does hereby find and ORDER:

(1) The Court adopts the comprehensive and well-reasoned Report and Recommendation.

(2) In his motion to dismiss the summary judgment motion (Did. 38) and in his objections to the Report and Recommendation (Did. 46), plaintiff contends that he should be afforded the opportunity to conduct discovery before the motion for summary judgment is considered by the court. Fed.R.Civ.P. 56(f) provides as follows:

When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

In order to continue a summary judgment motion under Fed.R.Civ.P. 56(f), a party so requesting must show that he or she diligently pursued previous discovery opportunities, and must also show how allowing additional discovery would preclude summary judgment. Qualls v. Blue Cross of. California, Inc., 22 F.3d 839, 844 (9th Cir.1994). Plaintiff has made no showing that or how allowing discovery would preclude summary judgment; he merely states that he has a legal right to conduct discovery before summary judgment is granted. Significantly, plaintiff provided no affidavits or declarations executed by himself to contradict the evidence submitted by defendants regarding being hit on the head with the flashlight and being required to walk to the patrol car with an injured knee; he has not shown how discovery would have been necessary to allow him to obtain such evidence. Further, as noted by defendants in their response to plaintiff's objections, plaintiff had nine months from filing this complaint to conduct discovery; the documents plaintiff apparently requests would not assist him in meeting his burden under Fed. R.Civ.P. 56 because those documents at most would reflect on credibility of certain defendants. See Dkt. 47. Accordingly, the court should not refuse the application for judgment or order a continuance.

(3) Defendants' motion for summary judgment (Dkt. 24 and 31) is GRANTED.

(4) Plaintiff's complaint and all remaining motions currently pending before the Court hereby are DISMISSED.

(5) The Clerk is directed to send copies of this Order to plaintiff, defendants' counsel and Magistrate Judge Karen L. Strombom.


STROMBOM, United States Magistrate Judge.

This matter has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. This matter comes before the undersigned on defendants' converted motion for summary judgment. (Dkt. # 24 and # 31). Having reviewed defendants' motion, plaintiffs responses and defendants' replies thereto, and the remaining record, the undersigned submits the following report and recommendation for the Honorable Robert J. Bryan's review.


This case involves a civil rights complaint brought by plaintiff against defendants — all of whom were deputies with the Pierce County Sheriffs Office during the relevant time period — pursuant to 42 U.S.C. § 1983. Specifically, in his amended complaint, plaintiff alleges that his constitutional rights were violated when:

(1) defendants Mark C. Berry and Kristain Nordstrom unlawfully conducted a traffic stop of his vehicle on the basis of an expired registration;

(2) defendants Berry and Nordstrom unlawfully engaged in a vehicle pursuit through a City of Tacoma residential neighborhood while he attempted to elude them;

(3) defendants Berry and Nordstrom used unnecessary force when they performed a precision intervention technique ("PIT") maneuver on his vehicle, and then hit his vehicle twice while it was stopped in a private driveway;

(4) defendant Berry used excessive force by hitting him on the back of his head with a flashlight; and

(5) defendants Berry, Nordstrom and Hardesty intentionally inflicted a substantial amount of pain on him by forcing him to walk on a fractured right knee instead of granting his request for a stretcher to transfer him to a patrol car after he was subdued.

Amended Complaint (Dkt.# 15).

On August 4, plaintiff was charged with the crimes of attempting to elude a pursuing police vehicle and of assault in the third degree for intentionally assaulting defendant Berry. Defendants' Appendix "A" (Dkt.# 24 3), pp. 1-2, Information. On October 4, 2004, a jury found plaintiff guilty of both crimes. Id., Verdict Form A (Count I) and Verdict. Form A (Count II), pp. 17-18. To find plaintiff guilty of the crime of attempting to elude a pursuing police vehicle, the jury was required to find the following elements were proved beyond a reasonable doubt:

(1) That on or about the 3rd day of August, 2004, the defendant drove a motor vehicle;

(2) That the defendant was signaled to stop by a uniformed police officer by hand, voice, emergency light or siren;

(3) That the defendant willfully failed or refused to immediately bring the vehicle to a stop after being signaled to stop;

(4) That while attempting to elude a pursuing police vehicle, the defendant drove his vehicle in a reckless manner[1];

(5) That the pursuing police vehicle was equipped with lights and siren; and

(6) That the acts occurred in the State of Washington.

Id., p. 7, Instruction No. 7.

To find plaintiff guilty of the crime of assault in the third degree, the jury was required to find the following elements beyond a reasonable doubt:

(1) That on or about the 3rd of August, 2004, the defendant assaulted Deputy Mark Berry;

(2) That at the time of the assault Mark Berry was a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties; and

(3) That the acts occurred in the State of Washington.

Id., p. 11, Instruction No. 11. The jury also was required to find that plaintiff was not entitled to the defense that the force used by him on defendant Berry was lawful. Id., p. 13, Instruction No. 15. Lawful force was defined as follows:

A person may use force to resist an arrest by someone known by the person to be a police officer only if the person being arrested is in actual and imminent danger of serious injury. The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar circumstances.


The Court has been provided with portions of the official transcript from plaintiffs criminal trial. While those portions do not provide a complete picture of everything that happened during the incident in question, they do shed substantial further light on the events at issue here. On or about August 3, 2004, at approximately 2:30 in the morning, defendant Berry saw a car drive at a rate of speed that looked to him to be faster than the speed limit. He ran a computer check on the car's license plate, which indicated that the car's tabs were expired. State of Washington v. John Lewis, No. 04-1-03796-6, Verbatim Report of Proceedings ("Verbatim Report of Proceedings"), p. 44, Ins. 9-15, 18, attached to Affidavit of Daniel R. Hamilton (Dkt.# 28). At the time, the car was being driven by plaintiff, who attempted to elude the police after they tried to stop him.

According to plaintiff, he was driving probably between 20 and 25 miles per hour at the time, which he claims was below the speed limit. At some point, he came to a stop in a driveway, although the car was still running at the time. The car then was binged by one of the defendant's patrol cars while performing a PIT maneuver, which caused it to spin around. At that point, plaintiffs car again was binged by one of the patrol cars causing it to go back to a slope. Defendants' Appendix "B" (Dkt.# 24-4), Verbatim Report of Proceedings p. 166, lns. 4-7, p. 173, Ins. 17-24, p. 230, 1n. 5-p. 231, Ins. 4, 15-16.

As a result of the PIT maneuver the front of plaintiffs car ended up being face-to-face with one of the patrol cars involved in the maneuver. According to plaintiff, defendants then jumped out with their guns drawn, screaming that they were going to shoot. At that point, in fear for his safety and believing it to be a life and death situation, plaintiff ran from his car. Id., p. 174, Ins. 4-14, p. 231, lns. 9-14,20-24. According to defendant Berry, after plaintiff got out of his car and began to run, he yelled and then continued to yell at plaintiff to stop and also identified who he was and what he wanted him to do. Appendix "C", Verbatim Report of Proceedings, p. 71, Ins. 2-6, attached to Defendants' Reply to Plaintiffs Opposition to Summary Judgment Dismissal.

Also according to defendant Berry, while he was pursuing plaintiff who was continuing to run from him, he had his flashlight in his right hand. His left hand remained free. As he and plaintiff were almost to some chicken wire fence present in the vicinity plaintiff turned right, but he did not stop or slow down in response to the defendant Berry's screaming...

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4 cases
  • Yarnall v. Mendez
    • United States
    • U.S. District Court — District of Delaware
    • September 10, 2007
    ...(no excessive force in use of plastic flashlight to hit arrestee several times on the back to control arrestee); John v. Berry, 469 F.Supp.2d 922, 937 (W.D.Wash.2006) (no excessive force in striking arrestee with flashlight in the head when arrestee actively resisted and attempted to evade ......
  • Mann v. Cnty. of Stanislaus
    • United States
    • U.S. District Court — Eastern District of California
    • January 30, 2023
    ...intended to stop a fleeing car safely and quickly. See Harris v. Coweta Cty., 433 F.3d 807, 816-17 (8th Cir. 2005);[3] John v. Berry, 469 F.Supp.2d 922, 935-36 (W.D. Wash. 2006). Here, the Court is not satisfied that the FAC adequately alleges that the authorization of the PIT maneuver was ......
  • Germain v. City of Seattle
    • United States
    • U.S. District Court — Western District of Washington
    • May 25, 2016
    ...¶¶ 13-15. Accordingly, Officer Boggs was justified under this provision in using force to effectuate an arrest. See John v. Berry, 469 F. Supp. 2d 922, 935 (W.D. Wash. 2006); see also Coe v. Snohomish Cty., No. C10-1713RAJ, 2011 WL 6055497, at *5 (W.D. Wash. Dec. 6, 2011) (finding that offi......
  • Whitehead v. Lamour
    • United States
    • U.S. District Court — Middle District of Florida
    • November 12, 2014
    ...but did not, while no cause for commendation, cannot under our cases be condemned as [a constitutional violation]."); John v. Berry, 469 F.Supp.2d 922 (W.D. Wash. 2006) (no deliberate indifference when policeman made Plaintiff walk to his patrol car instead of providing him with a stretcher......

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