Zawacky v. Cnty. of Clark
| Decision Date | 16 May 2023 |
| Docket Number | 3:22-cv-05101-DGE |
| Parties | SUSAN ZAWACKY, individually, and as Personal Representative of the Estate of JENOAH DONALD, deceased; ALEXZANDRA GASAWAY, individually, and as guardian of minor child I.D.; TIFFANY WALLWAY, individually, and as guardian of minor child S.W.; KARLIE KOACH, individually, and as guardian of minor child C.K., Plaintiffs, v. COUNTY OF CLARK, a political subdivision of the State of Washington; Sheriff's Deputy SEAN BOYLE; and Sheriff's Deputy HOLLY DEZUBIRIA, Defendants. |
| Court | U.S. District Court — Western District of Washington |
ORDER ORDER GRANTING IN PART AND DENYING IN PART PARTIAL MOTION FOR SUMMARY JUDGMENT (DKT. NO. 74)
This matter comes before the Court on Defendant Holly DeZubiria's (“Deputy DeZubiria”) motion for summary judgment (Dkt. No. 74). For the reasons discussed herein, the Court GRANTS in part and DENIES in part Deputy DeZubiria's motion.
The matter before the Court involves the killing of Jenoah Donald (“Mr. Donald”) by Defendant Deputy Sean Boyle (“Deputy Boyle”) on February 4 2021.[1]
Mr Donald was 30 years old at the time of his death and had suffered from autism. (Dkt. No. 68 at 1.) He was “prone to withdrawal, especially when under stress,” but enjoyed “mechanical tinkering and liked to work with engines.” (Id. at 2.)
Deputy Boyle pulled over Mr. Donald in Vancouver, Washington on the night of February 4th for driving with a defective taillight and to investigate whether Mr. Donald's vehicle had a modified muffler. (Dkt. No. 77 at 2.) Deputy Boyle had “self-dispatched” to the area where he pulled over Mr. Donald in response to dispatch reports about suspicious circumstances. (Dkt. No. 32-1 at 11-12.) After arriving to the area, he witnessed a Mercedes drive past with an “extremely loud” muffler and decided to “initiate a traffic stop.” (Id. at 12.) Mr. Donald initially cooperated with Deputy Boyle's requests and did not take any actions that made Deputy Boyle feel threatened. (Dkt. No. 70-1 at 37.) Mr Donald purportedly told Deputy Boyle he was driving with a suspended driver's license. (Dkt. No. 77 at 2.)
While Deputy Boyle was investigating Mr. Donald, Deputy DeZubiria arrived at the scene. (Dkt. No. 32-1 at 13-14.) Deputy DeZubiria approached the vehicle from the passenger side. (Dkt. No. 70-2 at 8.) As she approached the vehicle, she saw clutter and Mr. Donald “curl[ing] his hands in.” (Id. at 11.) Deputy DeZubiria twice asked Mr. Donald to show her his hands. (Id.) She asked Mr. Donald for a third time to show her his hands and he responded by reaching behind his back to present a pair of pliers and a phone, which he then discarded. (Id.) Deputy DeZubiria then allegedly instructed Mr. Donald to calm down, to which he responded that she needed to “chill out.” (Id.)
In the meantime, Deputy Boyle had returned to his patrol vehicle to run information on the vehicle and Mr. Donald. (Dkt. No. 32-1 at 14.) Another deputy, Greg Agar (“Agar”), arrived on the scene. (Id.) According to Deputy Boyle, while he was back at his squad car he heard Deputy DeZubiria direct Mr. Donald to show her his hands and to chill out, and this prompted him to take action. (Dkt. No. 70-1 at 36.) He returned to Mr. Donald's vehicle from his patrol car intending to “[t]o de-escalate the situation by getting [Mr. Donald] out of the car and placing him into handcuffs.” (Id.) Deputy Boyle opened the driver-side car door and attempted to remove Mr. Donald from the vehicle. (Id. at 37.) The facts, as presented by the parties, are muddled but it appears Deputy Boyle ordered Mr. Donald to exit the vehicle after he opened the car door. (Dkt. No. 96-1 at 23.) Deputy Boyle did not ask Mr. Donald to remove the keys from the ignition nor to step out of the vehicle prior to opening the car door. (Dkt. Nos. 701 at 37; 70-2 at 16.)
Mr. Donald allegedly told Deputy Boyle “No” in response to his order to exit the vehicle. (Dkt. No. 96-1 at 23.) In response, Deputy Boyle grabbed Mr. Donald by the arm, but Mr. Donald still refused to exit the vehicle. (Dkt. No. 70-2 at 13-14.) Deputy Boyle, in response, proceeded to punch Mr. Donald in the face. (Dkt. No. 70-1 at 38.) Deputy Boyle was a K-9 handler and had access to his service dog, Jango, throughout his encounter with Mr. Donald. (Id. at 39.) He allegedly threatened to use Jango in order to force Mr. Donald into compliance. (Dkt. No. 70-5 at 5.) Mr. Donald did not threaten Deputy Boyle or Deputy DeZubiria at any point during the interaction. (Dkt. No. 70-2 at 14.) Mr. Donald may have kicked out at Deputy Boyle after being punched in the face, but it is unclear whether he made contact with Deputy Boyle. (Dkt. Nos. 70-1 at 40; 70-4 at 21.) After Deputy Boyle punched Mr. Donald, Deputy DeZubiria unsuccessfully attempted to pull Mr. Donald from the vehicle. (Dkt. No. 70-3 at 6.) She then grabbed Mr. Donald by the mandible in an attempt to use pain compliance to force him from the vehicle. (Id.)
The deputies failed to remove Mr. Donald from the car and at some point the vehicle started to slowly roll forward. (Dkt. No. 70-4 at 25.) Deputy Boyle fired his gun twice and one of the shots fatally wounded Mr. Donald. (Dkt. No 96-1 at 12.) The parties dispute whether Deputy Boyle was being dragged by Mr. Donald alongside the vehicle when he shot and killed him. (See Dkt. Nos. 77 at 2; 96-1 at 12, 16, 20; 96-2 at 8-9.)
Plaintiffs[2] filed suit on February 17, 2022, against Clark County, Deputy Boyle, Deputy DeZubiria, and Clark County Sheriff Chuck Atkins. (Dkt. No. 1.) Plaintiffs allege claims of negligence, assault and battery, excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983, unreasonable seizure in violation of the Fourteenth Amendment, and deprivation of familial relationship also in violation of the Fourteenth Amendment. (Id. at 1114.)
On March 29, 2023, Deputy DeZubiria filed a motion for summary judgment as to all of Plaintiffs' claims against her. (Dkt. No. 74 at 1.) Deputy Boyle and Clark County also filed motions for summary judgment. (Dkt. Nos. 73, 76.) Defendants subsequently filed a separate motion for summary judgment seeking to dismiss Plaintiffs' Fourteenth Amendment claims. (Dkt. No. 82.) The Court struck this filing for failure to comply with Local Civil Rule 7(e). Plaintiffs filed their response to Defendants' summary judgment motions on April 17, 2023. (Dkt. No. 93.) On April 7, 2023, Defendants filed a motion for leave of court to file an additional summary judgment motion pursuant to Local Civil Rule 7(e). (Dkt. No. 88.) The Court held a hearing on April 20, 2023, and struck this additional motion, as well as Deputy Boyle and Clark County's pending motions for summary judgment, given Plaintiffs' need to conduct additional discovery. (Dkt. No. 100.) On April 21, 2023, Deputy DeZubiria filed her reply to Plaintiffs' opposition brief. (Dkt. No. 101.)
“Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Est. of Heath v. Pierce Cnty., No. 3:19-CV-06119-RJB, 2021 WL 2682513, at *3 (W.D. Wash. June 30, 2021). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court does not weigh the evidence or make credibility determinations at summary judgment. Zetwick v. Cnty. Of Yolo, 850 F.3d 436, 441 (9th Cir. 2017). “The proper question for the district court is whether, viewing the facts in the non-moving party's favor, summary judgment for the moving party is appropriate.” Id. In a deadly force case, “the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story-the person shot dead-is unable to testify” by accepting a “self-serving account.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
Deputy DeZubiria argues she is entitled to qualified immunity for her alleged excessive use of force on Mr. Donald. (Dkt. No. 74 at 6.)[3]
To determine whether an officer is entitled to qualified immunity, the Court must first “ask whether the facts taken in the light most favorable to the plaintiff show that the officer's conduct violated a constitutional right” and then assess “whether the right in question was clearly established at the time of the officer's actions, such that any reasonably well-trained officer would have known that his conduct was unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020).[4]
Claims of excessive force used to effectuate to an arrest or a seizure “are properly analyzed under the Fourth Amendment's ‘objective reasonableness' standard, rather than under a substantive due process standard.” Graham v. Connor, 490 U.S. 386 388, (1989). Courts must balance the extent of the use of force and intrusion on individuals' Fourth Amendment rights “against the countervailing governmental interests at stake.” Id. at 396. There is no set test to determine whether use of force may be reasonable-“in the end we must still slosh our way through the factbound morass of ‘reasonableness.'” Scott v. Harris, 550 U.S. 372, 383 (2007). The Ninth Circuit has advised “summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly,” given that these cases often require weighing disputed facts and making credibility...
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