Tift v. Snohomish County

• Decision Date: 24 January 2011
• Docket Number: No. C10–804 RSL.,C10–804 RSL.
• Citation: 764 F.Supp.2d 1247
• Court: U.S. District Court — Western District of Washington
• Parties: Gregory S. TIFT, Plaintiff,v.SNOHOMISH COUNTY, et al., Defendants.

764 F.Supp.2d 1247

Gregory S. TIFT, Plaintiff,

v.SNOHOMISH COUNTY, et al., Defendants.

No. C10–804 RSL.

United States District Court, W.D. Washington,at Seattle.

Jan. 24, 2011.

Gregory S. Tift, Bellevue, WA, pro se.

Hillary J. Evans, Everett, WA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERT S. LASNIK, District Judge.I. INTRODUCTION

This matter comes before the Court on defendants' Motion for Summary Judgment (dkt. # 38) and plaintiff's Motion for Partial Summary Judgment (dkt. # 79). In defendants' motion, they seek dismissal of every cause of action. Pro se plaintiff Gregory Tift argues that summary judgment is inappropriate because he has demonstrated genuine issues of material fact. Plaintiff requests summary judgment as to his trespass claim against defendants Sant, Giralmo and Jones. Dkt. # 79. Having reviewed the parties' memoranda, all supporting evidence submitted to the Court, and oral argument, the Court GRANTS in part and DENIES in part defendants' motion for summary judgment, and DENIES plaintiff's motion for partial summary judgment for the reasons stated below.

II. FACTUAL BACKGROUND

On January 6, 2009, at approximately 7:15 a.m., Snohomish County Deputies (defendants Nicholas Giralmo, Dane Sant and Darrell Jones), Snohomish County Sheriff's Special Services Unit Supervisor Mindy Richardson, and Matthew Green and Elizabeth Hebener of the law firm Williams, Kastner, Gibbs PLLC arrived at plaintiff's home to serve a Writ of Execution (the “Writ”).¹ When the deputies rang the doorbell, plaintiff's minor stepchild opened the door, responded to the deputies that her parents were home, closed the door with the sheriffs outside, and went to wake up her parents.² Dkt. # 69 [J.J. Decl.] ¶ 2. Plaintiff went to the balcony and saw the three deputies, an unidentified man and unidentified woman in civilian clothes in his home. Dkt. # 62 [Tift Decl.] ¶ 1. Once plaintiff identified himself, one of the deputies charged up the stairs and escorted him downstairs. Id. ¶¶ 1–2. When Deputy Giralmo served the Writ on plaintiff, plaintiff stated that he could not see without his glasses, but that he was familiar with a writ of attachment and wanted to see a copy of the bond, if any. Id. ¶¶ 2–4. Plaintiff learned that one of the civilians was Matthew Green, who was the attorney for the judgment creditor and against whom plaintiff had obtained an ex parte default judgment in another matter. Id. ¶ 4. Plaintiff had the Writ in both hands, trying to find the paragraphs about choosing exemptions, and when he began asking about exemptions, he realized he “was surrounded by all officers. [He] tried to step out because they had [him] pinned to the wall; as [he] passed between the two officers they grabbed and faced slammed [sic] [him] into the front door, [he] did not resist them [he] really could not move.” Id. ¶ 5. Plaintiff was then handcuffed, placed inside a patrol car, and taken to jail. Id.

The deputies then removed various personal property from the home and provided Rebecca Johnson, plaintiff's wife, with an inventory list of the items taken. Dkt. # 64 [Johnson Decl.] ¶¶ 7–8. Plaintiff alleges that several items went missing that were not listed on the inventory, including Ms. Johnson's Escrow refund check ( id. ¶ 8), cash from plaintiff's wallet, plaintiff's keys, and legal papers (dkt. # 62 [Tift Decl.] ¶¶ 10–11).

In his First Amended Complaint against Deputies Giralmo, Jones and Sant, and Snohomish County, plaintiff alleges claims for Excessive Use of Force, Violation of State Law and Negligence, Personal Injury Property, Violation of Due Process, Deprivation of Rights, Unlawful Entry and Deprivation of Liberty, Denial of Equal Protection, Imprisonment for Debt, Extra Compensation by Public Officer, Property Theft, and Outrage. Dkt. # 31.

III. ANALYSISA. Legal Standard on Summary Judgment

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets the initial burden, the opposing party must set forth specific facts showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

B. Fourth Amendment Unlawful Seizure, Arrest or Imprisonment Claim

Whether the individual defendants are entitled to qualified immunity on this claim depends on (1) whether the facts that the plaintiff has alleged or shown make out a constitutional violation and, (2) if so, whether the constitutional right at issue was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). ³

1. Unlawful Arrest

Probable cause to arrest an individual exists when the facts and circumstances are sufficient to warrant a reasonably prudent person in believing that the individual has committed or is committing a crime. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

It is not disputed that Deputies Giralmo and Jones were the arresting officers. Dkt. # 39 [Giralmo Decl.] ¶ 8 & # 41 [Jones Decl.] ¶ 7. Since Deputy Sant did not arrest plaintiff, he cannot be liable for unlawfully arresting him. The Court grants summary judgment to Deputy Sant on plaintiff's claim for unlawful arrest.

Plaintiff was arrested for obstruction and resisting arrest under RCW 9A.76.020 and 9A.76.040. Dkt. # 38 at 15 n. 7, # 39 [Giralmo Decl.] ¶ 8, # 41 [Jones Decl.] ¶¶ 6–7. According to Plaintiff, he had the Writ in both hands, was attempting to find the paragraphs about exemptions, and began asking about exemptions when “all sheriffs started talking at once” and surrounded him. Id. ¶ 5.⁴ Although plaintiff does not dispute that he made contact with one of the deputies, he describes that he was merely attempting to step out of an uncomfortable situation where he was “surrounded” by the officers and “pinned to the wall.” Id. ¶ 5. Additionally, Ms. Johnson declares that she “heard no shouting” and did not hear her husband raise his voice or yell at the Sheriff. Dkt. # 64 [Johnson Decl.] ¶¶ 2, 12.⁵ Viewing the facts in the light most favorable to plaintiff, a reasonable juror could find that he was not verbally and physically belligerent and did not refuse to comply with defendants' commands. Dkt. # 62 [Tift Decl.] ¶¶ 1–6. ⁶ The Court finds that, taking plaintiff's version of the events as true, the deputies did not have probable cause to arrest him for obstruction. With respect to resisting arrest, while plaintiff concludes that he “did not resist” the deputies, he provides no facts that refute Deputy Giralmo's report that he “tried to straighten his arms and break [Deputy Giralmo's] hold” (dkt. # 39 [Giralmo Decl.]¶ 8). See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.2001) (conclusory allegations unsupported by factual data are insufficient to defeat summary judgment). Nevertheless, if there was no probable cause to arrest plaintiff for obstruction in the first place, it makes no difference for present purposes if he resisted arrest. See Blankenhorn v. City of Orange, 485 F.3d 463, 472 (9th Cir.2007).

Having determined that violations of plaintiff's Fourth Amendment rights could be established on a favorable view of plaintiff's evidence, the Court must determine whether the right was clearly established. It has long been established that a warrantless arrest is justified only where there is probable cause to believe that a criminal offense has been committed. See Gerstein, 420 U.S. at 113, 95 S.Ct. 854. The Court finds that there is a triable issue of whether a reasonable officer faced with these facts would have concluded that there was a fair probability that plaintiff was obstructing the deputies. John v. City of El Monte, 515 F.3d 936, 940 (9th Cir.2008) (A court must consider “the totality of the circumstances known to the arresting officers, to determine if a prudent person would have concluded there was a fair probability that the defendant had committed a crime.”) (internal edits omitted). The Court finds that the factual disputes prevent the Court from ruling as a matter of law that the officers are entitled to qualified immunity.

Accordingly, the Court denies defendants' summary judgment motion for plaintiff's unlawful arrest claim against Deputies Giralmo and Jones.

2. Unlawful Search and Seizure

Plaintiff argues that the execution of the Writ was an unlawful search and seizure because the initial entry was made at an unreasonable time and the manner of execution was improper. Dkt. # 61 [Opp.] at 12–13.

Plaintiff claims that the execution of the Writ was unreasonable as to time because it was still dark at 7:15 a.m., citing to Fed.R.Crim.P. 41(e)(2)(A)(ii), which requires law enforcement to execute warrants during the daytime. Dkt. # 61 [Opp.] at 12, # 76 [Surreply] at 4. Plaintiff acknowledges that Rule 41 controls...