Woods v. Gutierrez
| Decision Date | 12 December 2012 |
| Docket Number | 3:11-CV-01082-BR |
| Parties | KEVIN KENNA WOODS, Plaintiff, v. PATROL OFFICER VICTOR GUTIERREZ, an individual; and CITY OF HERMISTON, a municipal corporation, Defendants. |
| Court | U.S. District Court — District of Oregon |
THOMAS FREEDMAN, JR.
Pearl Law LLC
Attorneys for Plaintiff
Hart Wagner, LLP
Attorneys for Defendants
This matter comes before the Court on Defendants' Motion (#34) for Summary Judgment. For the reasons that follow, the Court GRANTS Defendants' Motion.
The following facts are undisputed unless otherwise noted:
On August 31, 2010, Umatilla County Circuit Court Judge Jeffrey McCall entered a Stalking Protective Order against Plaintiff Kevin Kenna Woods that prohibited Plaintiff from "intentionally, knowingly or recklessly having contact . . . with: Mary Sue Edes, Erline Owen, and Rina Henderson." The Stalking Protective Order prohibited Plaintiff from, among other things, "[c]oming into the immediate visual or physical presence of [Edes, Owen, or Henderson] within 250 feet" and from being closer than 50 feet from Edes, Owen, or Henderson except when Plaintiff visited his parents' residence. The Stalking Protective Order allowed Plaintiff to have contact with Henderson "for the purposes of parenting time and custody as ordered by the Court." Plaintiff, however, was not visiting his parents' residence nor taking part in parenting time or custody at the time of the events at issue.
On November 26, 2010, Judge McCall entered an Amended Stalking Protective Order, which continued to prohibit Plaintifffrom "intentionally, knowingly or recklessly having contact . . . with: Mary Sue Edes, Erline Owen, and Rina Henderson." The Amended Stalking Protective Order also continued to prohibit Plaintiff from, among other things, "[c]oming into the immediate visual or physical presence of [Edes, Owen, or Henderson] within 250 feet except that when visiting his parents [sic] residence . . . he may be no closer than 50 feet." The Amended Stalking Protective Order was effective "until further order of the court." The Amended Stalking Protective Order was effective at all times relevant to the events at issue.
On February 11, 2011, at 2:18 p.m., Erline Owen called 911 and (1) advised the operator that she was protected by a Stalking Protective Order that prohibited Plaintiff from being within 250 feet of her; (2) stated she was at 1210 Eleventh Street, Space No. 32 in Hermiston, and had been babysitting her grandchild since 7:45 that morning; (3) advised the operator that Plaintiff was across the street in Space No. 10,1 which was closer than 250 feet from her; and (4) stated she believed Plaintiff knew she was across the street because she thought Plaintiff had seen her while she was on the front porch and Plaintiff also knew what her vehicle looked like.
Defendant Officer Victor Gutierrez was dispatched to respondto Owen's call. Officer Gutierrez arrived at 1210 Eleventh Street at 2:30 p.m. in response to the call. Officer Gutierrez contacted Plaintiff on arriving. The parties' accounts differ as to the initial meeting. Plaintiff testified at deposition that he was in his car driving out of the trailer park and was stopped at a stop sign when Officer Gutierrez turned into the park and asked Plaintiff to turn around and come back to speak with him. Plaintiff agreed and drove back to the trailer park to talk with Officer Gutierrez. Officer Gutierrez testified at deposition that Plaintiff was sitting in his vehicle "trying to exit the vehicle and go inside his house [at the trailer park] when I pulled up." Decl. of Leslie Edenhofer, Ex. 2 at 3.
Officer Gutierrez advised Plaintiff that Officer Gutierrez was at the park to investigate a stalking complaint. Officer Gutierrez testified at deposition that Plaintiff told Officer Gutierrez that he knew Owen's vehicle had been at Space 32 all day on February 11, 2011. Plaintiff, however, testified at deposition that although he knew it was Owen's van, "they all drive it." Plaintiff was surprised at the accusation that he was violating the Stalking Protective Order because he had been at his "home and residence, which was private property," and he advised Officer Gutierrez that he did not believe he had "done anything wrong or violated the Stalking Order." Decl. of Kevin Woods at ¶ 8. Plaintiff, however, testified at deposition thathe knew the Stalking Protective Orders did not contain any exception for Plaintiff being at his residence. Woods Dep. at 103-04. Officer Gutierrez noted in his arrest report and testified at deposition that after Plaintiff advised Officer Gutierrez that he did not believe he had done anything wrong, Plaintiff "decided to walk away." Gutierrez Dep. at 19. Officer Gutierrez told Plaintiff to wait in his squad car. Woods Decl. at ¶ 9. Plaintiff complied with Officer Gutierrez's directive.
Officer Gutierrez then contacted Owen at Space 32. Owen answered the door and talked with Officer Gutierrez on the porch. Owen and Officer Gutierrez testify in their Declarations that Owen showed Officer Gutierrez a copy of the Amended Stalking Protective Order, Owen told Officer Gutierrez that she was afraid of Plaintiff, and Owen began to shake while she talked with Officer Gutierrez about Plaintiff. Owen told Officer Gutierrez that Plaintiff had been parked in front of Space 32 and had made eye contact with Owen, at which point she had decided to call 911.
After speaking with Owen, Officer Gutierrez called dispatch and confirmed the Amended Stalking Protective Order was valid. Officer Gutierrez then returned to the squad car and advised Plaintiff that he was under arrest for violating the Amended Stalking Protective Order. Plaintiff testified Officer Gutierrez told him that he had violated the Amended Stalking ProtectiveOrder by coming into visual contact with Owen, at which point Plaintiff told Officer Gutierrez that he had not seen Owen; he was unaware she was at the trailer park; and even though Plaintiff had seen Owen's van earlier, he knew numerous people drove that vehicle. Woods Decl. at ¶¶ 11-12.
Plaintiff testified at deposition that Officer Gutierrez told Plaintiff to place his hands behind his back to be handcuffed. Plaintiff asked Officer Gutierrez if he could use two sets of handcuffs "'cause I got short arms and I'm pretty big." Woods Dep. at 124. Officer Gutierrez agreed and used two sets of handcuffs on Plaintiff during the ten-minute drive to the Hermiston Police Department.2 Woods Dep. at 124.
Plaintiff testified at deposition that Plaintiff did not "at any time state that [he] had any injuries to [his wrists" before Officer Gutierrez placed the two sets of handcuffs on Plaintiff. Woods Dep. at 127. Plaintiff also testified at deposition that Plaintiff thinks he said "ow" one time when Officer Gutierrez initially put the handcuffs on because one of the handcuffs "pinched real tight for a second or two." After Plaintiff said "ow," Officer Gutierrez "got it loose real quick." Woods Dep. at 130-31. Woods testified he did not have any complaints about hishandcuffs and did not make any complaints that his wrists were bothering him during the ten-minute ride to the Hermiston Police Department. Woods Dep. at 130. It is general Hermiston Police Department policy and procedure to handcuff individuals with their hands behind them during transport.
Officer Gutierrez removed Plaintiff's handcuffs and placed him in a holding cell at the Hermiston Police Department. Plaintiff was in the holding cell for approximately 30 minutes while Officer Gutierrez prepared a probable-cause affidavit. Plaintiff testified at deposition that he could not recall if he complained to Officer Gutierrez about his wrists hurting during any of their conversations while Plaintiff was in the holding cell. Woods Dep. at 134.
Officer Gutierrez advised Plaintiff after 30 minutes that he was going to take Plaintiff to Umatilla County Jail. Plaintiff testified at deposition that he showed Officer Gutierrez a scar from "an old injury" and asked if Officer Gutierrez could put the cuffs on in front because they "were pinching my wrist." Woods Dep. at 135. Plaintiff testified he only showed Officer Gutierrez the scar and did not advise Officer Gutierrez that he had undergone carpal-tunnel surgery. According to Plaintiff, Officer Gutierrez refused to handcuff Plaintiff in front because it was "standard procedure" to put handcuffs on an individual with his hands behind him. Woods Dep. at 136. OfficerGutierrez, however, testified at deposition that Plaintiff did not ask to be handcuffed in front at any time. Gutierrez Dep. at 45.
Officer Gutierrez placed handcuffs on Plaintiff again for the 30-minute drive to the Umatilla County Jail. Plaintiff testified at deposition that he did not know whether Officer Gutierrez used two sets of handcuffs, but he thought Officer Gutierrez might only have used one set because the handcuffs felt tighter than they had on the ride to the Hermiston Police Department. Woods Dep. at 138. Officer Gutierrez, however, testified he used two sets of handcuffs because Plaintiff Gutierrez Dep. at 52-53.
Plaintiff and Officer Gutierrez both testified at deposition that Plaintiff did not complain about pain when Officer Gutierrez placed the handcuffs on him for the ride to Umatilla County Jail or at any other time during the ride to the jail. Plaintiff testified at deposition that when they arrived at the Umatilla County Jail and were exiting the police vehicle, his wrists were "really hurting" and he could not feel his thumb. Plaintiff also testified he advised Officer Gutierrez at that point that his wrists hurt, and Officer Gutierrez advised him that he would be able to see a doctor or nurse at the jail. Officer Gutierrez, however, testified at deposition that when he turned Plaintiffover to...
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