Vicki Chang v. Vanderwielen
| Decision Date | 12 October 2022 |
| Docket Number | C22-0013-SKV |
| Parties | VICKI CHANG, Plaintiff, v. ANDREW VANDERWIELEN, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
ORDER GRANTING JANE GUREVICH'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Vicki Chang, proceeding pro se, raises claims under 42 U.S.C § 1983 and state law relating to events occurring at the University of Washington Harborview Medical Center (Harborview) in early January 2019. Dkts. 1 & 1-1. She named as Defendants Washington State Patrol Troopers Andrew Vanderwielen and Edward Collins, Seattle Police Officer Brian Hunt, the City of Seattle, and University of Washington employees Jane Gurevich, a Harborview Security Officer, and Dr. Riddhi Kothari, D.O., a former Harborview physician. See id. The Court dismissed Plaintiff's claims against Dr. Kothari and Collins, as well as her claims against Vanderwielen for damage to and seizure of her personal property. Dkts. 80 & 104. The Court denied dismissal of the excessive force claim against Vanderwielen without prejudice to his filing of a summary judgment motion in relation to that claim. Dkt. 104.
Defendant Jane Gurevich now moves for summary judgment and dismissal of Plaintiff's claims. Dkt. 107. Plaintiff opposes that motion, Dkt. 120, and Gurevich moves to strike portions of the opposition, Dkt. 122 at 1-2.[1] The Court, having considered the relevant briefing and evidence, along with the remainder of the record, herein finds and concludes as stated below.
Plaintiff's claims against Gurevich relate to events occurring on January 6, 2019. See Dkt. 1. Gurevich is a Security Officer at Harborview. Dkt. 108, ¶2. Harborview is operated by the University of Washington, which is an agency of the State of Washington. See id.
In her Complaint, Plaintiff alleges that, on the day of the incident, she was experiencing significant physical and mental distress, with potential problems including “hypothermia, a panic attack, nervous breakdown, and being really disoriented.” Dkt. 1-1 at 2-3. She arrived at Harborview by ambulance, checked in, but was not permitted to see a doctor. Id. at 3. Vanderwielen and Gurevich claimed Plaintiff was “‘flopping around' on the waiting room floor,” and “needed to be forcibly discharged without being seen by a doctor[.]” Id. Vanderwielen demanded Plaintiff get into a wheelchair and “wheeled her erratically into a metal detector, parking garage ticket machine, and the wall, frightening [her].” Id. While Vanderwielen claimed he tried to stand Plaintiff up and she “‘flopped to the ground,'” Plaintiff “recalls that he then body slammed her to the ground.” Id. at 3-4. Also, while lying on the ground and “not resisting arrest or assaulting anyone in anyway, . . . Gurevich leaned on and squished [P]laintiff's knees a lot” and Vanderwielen cut through a handle on her handbag with a knife, “causing property damage[.]” Id. at 4. Gurevich falsely claimed Plaintiff “assaulted [Gurevich] while lying prone on the ground . . . by kicking her on the side several times[,]” resulting in Plaintiff's arrest and false imprisonment. Id.
Gurevich offers a different depiction of events, as described below and supported by a Harborview surveillance video, still photos taken from the video, and Gurevich's January 13, 2019 incident report. Dkt. 107 at 2-4 & Dkt. 108, ¶¶3-4 & Exs. A-B. Gurevich reported that, after a registered nurse requested that Plaintiff be evicted from Harborview, she arrived to find Plaintiff screaming at Vanderwielen and another security officer and asking to be taken to jail. Dkt. 108, Ex. B. Plaintiff refused to leave the facility. Id.
The video begins with Plaintiff engaged in conversation with Vanderwielen, Gurevich, and the other security officer. Id., Ex. A. When Gurevich and the others attempt to bring Plaintiff to a standing position, Plaintiff resists and twice drops her own body to the floor. Dkt. 107 at 2 & Dkt. 108, Exs. A-B. Gurevich retrieves a wheelchair and, along with Vanderwielen and the other security officer, places Plaintiff in the wheelchair and begins to move toward the exit. Id.
As the wheelchair moves, Plaintiff continues to resist by attempting to get out of the wheelchair and by using her feet to stop the chair from moving and to push off from surrounding objects. Dkt. 107 at 3 & Dkt. 108, Exs. A-B. After the wheelchair is turned in the opposite direction, Plaintiff again stands up, tries to pull away from Vanderwielen and Gurevich, and, despite their efforts to stop her, goes back to the ground. Id. Plaintiff actively resists both before and after she reaches the ground, struggling with her upper and lower body and kicking her legs. Dkt. 107 at 4 & Dkt. 108, Exs. A-B.
With Plaintiff on the ground, Gurevich and the others act to gain control. Vanderwielen and the other security officer secure her arms and upper body, Gurevich and a third security officer secure her lower body and legs, and Vanderwielen applies handcuffs to her wrists. Id. Gurevich reports that Plaintiff was at that point repeatedly asked to let go of her purse, which needed to be checked for weapons, but refused. Dkt. 108, Ex. B. Vanderwielen then cut a purse strap to enable removal of the purse. Id. Plaintiff is subsequently allowed to move into a seated position on the floor and, later, in a nearby chair. Id., Exs. A & B. Gurevich puts the purse through a metal detector and places it on a chair near Plaintiff. Id. Seattle Police Department Officers who have arrived on the scene take statements from Gurevich and others, place Plaintiff under arrest for assault for kicking Gurevich, and escort Plaintiff out of Harborview. Id.
In her opposition, Plaintiff denies she moved volitionally to the floor and contends she was “pushed, prodded, dragged and shoved to the ground[.]” Dkt. 120 at 10-11. She contends Gurevich harassed, intimidated, and humiliated her in an effort to prevent her from accessing medical care, tried to steal her purse, and asked her to leave despite her serious medical and psychiatric issues. Id. at 8. She contends both Vanderwielen and Gurevich body slammed her to the ground and that Gurevich “forcibly sickl[ed]” and pointed her ankle in an effort to sprain or injure it, “squish[ed] her knees a lot,” and “bounc[ed]” on her knees and ankles, despite the fact Plaintiff was “prone and obviously not resisting arrest[.]” Id. at 6, 9, 16, 19. Plaintiff denies she kicked Gurevich or that the video or photos clearly show any such contact, and contends she was falsely imprisoned through a false assault charge. Id. at 6 & 11-12. She also contends that, as a result of this incident, she “grew a new bone spur on the top of my right ankle/instep” and experienced “significant knee and other joint pain”, stress, and new and/or aggravated psychiatric issues. Id. at 9.
On January 6, 2022, Plaintiff filed her Complaint in this Court. Dkt. 1-1. She alleges Gurevich is liable for torts of assault, personal injury, property damage, false arrest, and false imprisonment. Id., ¶¶4.2-4.3. She also brings claims against Gurevich for excessive force and damage to and seizure of her personal property in violation of her Fourth and Fourteenth Amendment rights. Id., ¶4.7. Plaintiff did not file a tort claim against either Gurevich or her employer prior to filing her Complaint. See Dkt. 16, ¶3 & Dkt. 80 at 2.
Gurevich filed her Answer and Affirmative Defenses on February 25, 2022. Dkt. 13. On February 27, 2022, Plaintiff filed a tort claim with the Office of Risk Management, Department of Enterprise Services (DES). Dkt. 68-1, ¶5. Gurevich now seeks dismissal on summary judgment. Dkt. 107.
In seeking summary judgment, Gurevich argues Plaintiff's federal claims should be dismissed on the merits and because she is entitled to qualified immunity. She argues Plaintiff's state law claims should be dismissed due to Plaintiff's failure to comply with the pre-suit notice requirements of RCW 4.92, the statute of limitations bar, and their lack of merit. The Court below addresses the summary judgment motion, opposition, and Gurevich's motion to strike.
Gurevich moves to strike portions of Plaintiff's opposition brief. First, Gurevich points to Plaintiff's statement that she developed a bone spur as a result of Gurevich's use of force. See Dkt. 120 at 9 & Dkt. 120-1 at 3 (). She argues this statement should be stricken as an unsupported medical causation opinion. See, e.g., Schudel v. Gen. Elec. Co., No. 99-36089, 2002 WL 972156, at *2 (9th Cir. 2002) () Second, Gurevich points to various statements offered by Plaintiff in relation to the events depicted on the surveillance video, including: (1) a doctor's statement that the video showed Plaintiff being “‘brought to the ground.'”; (2) a Seattle Police Officer's statement that “any kicking that occurred would be in self-defense . . . and not assaultive behavior.”; and (3) a therapist's statement that he was “‘disgusted by the lack of empathy that [he was] seeing displayed.” Dkt. 120 at 9, 11-12, 14. Gurevich argues these statements should be stricken as hearsay. See Fed.R.Evid. 801-802. She also deems the statements unhelpful in that the video does not benefit from commentary by those who were not a part of the encounter.
The Court “can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA...
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