Turner v. County of Washoe, CV-S-90-706-PMP (LRL).

• Decision Date: 20 February 1991
• Docket Number: No. CV-S-90-706-PMP (LRL).,CV-S-90-706-PMP (LRL).
• Parties: Mark O. TURNER, Plaintiff, v. COUNTY OF WASHOE, Jeffrey B. Pepper, Timothy John Ryan, Robert Preston Campbell, and Vincent G. Swinney, Defendants.
• Court: U.S. District Court — District of Nevada

759 F. Supp. 630

Mark O. TURNER, Plaintiff, v. COUNTY OF WASHOE, Jeffrey B. Pepper, Timothy John Ryan, Robert Preston Campbell, and Vincent G. Swinney, Defendants.

No. CV-S-90-706-PMP (LRL).

United States District Court, D. Nevada.

February 20, 1991.

COPYRIGHT MATERIAL OMITTED

Robert R. Hager, Mark Mausert, Hager & Mausert, Reno, Nev., for Turner.

Ken Bick, Reno, Nev., for Pepper, Ryan, Campbell and Swinney.

Thomas F. Riley, Deputy Dist. Atty., Reno, Nev., for Washoe County.

MEMORANDUM DECISION AND ORDER

PRO, District Judge.

Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in which he alleged that the County of Washoe, its sheriff and three of its deputy sheriffs were responsible for violating his civil rights. The complaint also contains numerous pendent state claims. The genesis of this action involves the arrest of Plaintiff, which he alleges was unlawful and during which the deputy officer used excessive force and then denied him adequate medical care. Pending at this time are motions for summary judgment filed by the individual Defendants (# 29) and the County of Washoe (# 30). All parties have retained counsel.

I. FACTS

On June 24, 1986, Washoe County Deputy Sheriff Pepper stopped a vehicle for speeding as it left an area in which a possible burglary had been reported.¹ After waiting for a period of time² in the hot sun in a convertible car, Plaintiff exited the stopped car and began to approach the patrol car. Deputy Pepper told Plaintiff to return to his car. After an additional delay, Plaintiff again began approaching the patrol car, at which time Deputy Pepper told Plaintiff to return to his car or he would be arrested. Plaintiff told him to go ahead and arrest him and continued approaching the patrol car. While Plaintiff was being handcuffed, he turned his head to advise Deputy Pepper that he had a bad shoulder and to be careful. At that moment, Plaintiff was thrust onto the hood of the patrol car, and the handcuffing was completed. He was then placed into the back of the patrol car. Because Plaintiff was complaining that his shoulder was feeling "strained" while in transit to the sheriff's headquarters, Deputy Pepper stopped and adjusted the handcuffs so that Plaintiff's hands were in front instead of behind him.

While being booked, Plaintiff complained his shoulder hurt and demanded medical attention. He was taken to the hospital. Because of the apparent hostility between Plaintiff and Deputy Pepper, Defendant Deputy Campbell was called to obtain certain information from Plaintiff needed to complete the police reports. At first, Plaintiff wanted the doctor who had previously operated on his shoulder to conduct the examination, but when told that said individual was not available, the staff proceeded to treat Plaintiff. X-rays did not disclose any internal damage. Plaintiff was provided with a shoulder sling to immobilize the arm and released with a prescription for medication to relieve any pain. Plaintiff's wife posted bail that afternoon and he was released. One month short of two years later,³ Plaintiff underwent surgery to correct ligament and muscular damage to the shoulder which had been injured many years before and "strained" during the arrest.

As a result of the arrest, Defendant Deputy Ryan caused Plaintiff's concealed firearm permit to be revoked, and the Reno Police Department was notified of the revocation.⁴ Defendant Deputy Ryan apparently also had some contact with some of the clients for whom Plaintiff provided security via his private security company.

II. MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper "if 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 a judgment as a matter of law." Rule 56, Fed.R. Civ.P. The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). Once the movant presents evidence which, if uncontroverted, would entitle the movant to a directed verdict a trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988). A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir.1982).

When faced with a motion for summary judgment, the material before the court "must be viewed in the light most favorable to the non-moving party," Adickes v. S.H. Kress and Co., 398 U.S. at 157, 90 S.Ct. at 1608, and it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proven under the allegations of the complaint. Halet v. Wend Investment Co., 672 F.2d 1305 (9th Cir.1982). Furthermore, allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). Finally, summary judgment is not a disfavored procedural shortcut, but an integral part of the federal rules as a whole. Celotex Corp. v. Catrett, supra.

III. PLAINTIFF'S CLAIMS

A. Unlawful Arrest

Plaintiff contends that Deputy Pepper violated his civil rights by subjecting him to an arrest without probable cause that Plaintiff had committed an arrestable offense. It has long been established law that a police officer who arrests with probable cause is immune from suit in a civil rights action.⁵See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and its progeny. Conversely, a police officer who arrests without probable cause has committed a civil rights violation. Whether a police officer had probable cause to arrest is ascertained by looking at the facts known to the officer at the time of the arrest⁶ and determining whether a reasonably prudent police officer could have believed that the suspect had committed or was committing an arrestable offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). The standard of review is an objective one and not a subjective one, for the actual intent of the arresting officer is not material to determining whether probable cause existed.⁷ "If subjective good faith alone were the test, the protection of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,' only in the discretion of the police." Beck v. Ohio, 379 U.S. at 97, 85 S.Ct. at 229. In this regard, Plaintiff's reliance on Bretz v. Kelman, 773 F.2d 1026 (9th Cir.1985), is misplaced.<sup>8</sup> Lastly, whether probable cause existed is a question of law; "when the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would `warrant a man of reasonable caution in the belief' that an offense has been committed." Beck v. Ohio, 379 U.S. at 96, 85 S.Ct. at 228, quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).

The material facts giving rise to the arrest are not in dispute. As Plaintiff approached the patrol car, Deputy Pepper ordered him to return to his car and wait there. Plaintiff went back and waited near the rear of his car. When Plaintiff approached the patrol car a second time, Deputy Pepper ordered Plaintiff to again return to his car or he would be arrested. Plaintiff told Deputy Pepper to go ahead and arrest him, which was done.⁹ "The crime of resisting a public officer is complete when one willfully resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his office." McKinnon v. State of Nevada, 96 Nev. 821, 618 P.2d 1222, 1222 (1980). See § 199.280, Nev.Rev.Stat. Thus, the offense was complete when Plaintiff disobeyed Deputy Pepper's order. See also, Patterson v. State, 191 Ga.App. 359, 381 S.E.2d 754 (1989) (defendant's refusal to return to his car during a traffic stop amounted to obstructing a policy officer in the performance of his duties), and State v. Manning, 146 N.J.Super. 589, 370 A.2d 499 (1977) (defendant guilty of interfering with police officer when he refused to return to his car during a traffic stop, even though there was no direct contact). Consequently, Deputy Pepper had probable cause to believe that Plaintiff was guilty of "resisting a public officer". The arrest was therefore not in violation of Plaintiff's civil rights. Plaintiff's claim is therefore meritless.

B. Excessive Force

The determination of whether a police officer has used excessive force during an arrest is analyzed under the Fourth Amendment's "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id., 109 S.Ct. at...