DENISE ABBEY, individually, and as special administrator of the ESTATE OF MICAH ABBEY, Plaintiff,
CITY OF RENO; et al., Defendants.
LARRY R. HICKS, UNITED STATES DISTRICT JUDGE
Before the court is defendants the City of Reno, Reno Police Department (“RPD”), Officer Keith Pleich (“Officer Pleich”), Officer Daniel Bond (“Officer Bond”), and Officer Scott Rasmussen’s (“Officer Rasmussen”) (collectively “defendants”) motion for summary judgment based on qualified immunity. Doc. #71. Plaintiff Denise Abbey (“Abbey”), as the special administrator of the Estate of Micah Abbey, filed an opposition to the motion (Doc. #75) to which defendants replied (Doc. #82).
Also before the court is plaintiff Abbey’s cross-motion for summary judgment. Doc. #72. Defendants filed an opposition to the motion (Doc. #77) to which Abbey replied (Doc. #80).
I. Facts and Procedural History
This action involves the death of Micah Abbey (“Micah”) at a Project Uplift group homeduring an altercation with RPD officers.
Micah became a resident of the group home on October 12, 2011. Prior to entering the home, Micah had a history of mental illness and had been diagnosed with depression, anxiety, and post traumatic stress disorder. Micah also had a history of drug abuse and was recovering from both a methamphetamine and a marijuana addiction. Despite his recovery, Micah was still occasionally using a form of synthetic marijuana known as “Spice.” Micah entered Project Uplift in order to address his mental health and substance abuse issues.
During Micah’s short stay at the group home, he was involved in a number of increasingly violent incidents prior to his death. On December 6, 2011, RPD responded to an incident at the group home because Micah was punching holes in the walls and breaking windows in the house. The two officers on scene observed Micah claiming to hear voices, speaking to people that were not in the room, and making statements that the Chinese were invading. Because of his erratic and destructive behavior, Micah was placed in restraints and taken to the hospital. Following the December 6th incident, Micah admitted that he had been smoking “Spice.”
Two weeks later on December 17, 2011, the on-duty night shift caretaker observed Micah acting unusual and spending an inordinate amount of time in the bathroom. Two days later, on December 19, 2011, Micah destroyed a clock radio and toppled another resident’s dresser, kicking a large hole in the back of it. Then, the very next day, Micah rushed a staff member and began yelling in the staff member’s face about a missing fanny pack.
The incident underlying this action began at approximately 1:30 p.m. on December 25, 2011. At that time, Micah was engaged in a telephone call with his brother about his brother’s recent arrest. During the call, Micah was overhead saying that he would be “going gangsta” on the people responsible for putting his brother in jail. After the call, Micah was visibly agitated and spent the rest of the day pacing and grunting.
At 7:00 p.m. Michael Ross (“Ross”), the on-duty night caretaker, arrived for his shift and gave Micah his nightly medication. Sometime between 7:00 p.m. and 7:45 p.m., Micah started yelling at other residents of the group home because he thought his backpack was missing. Ross intervened and tried to calm Micah by telling him that yelling and getting upset wouldn’t help solve the problem. Micah then shoved Ross, held his body against a wall, and began threatening Ross while holding a fork in his outstretched hand.
At 7:45 p.m. Ross called 911 and told the dispatcher that he had been threatened and that he feared for his safety, and the safety of the other residents. While dispatch was on the call with Ross, Micah was overheard yelling in the background “[t]hey’re all trying to get me and I’m gonna F’em all up and I’ll take care of all of ‘em.” Micah then punched a hole in the wall, bloodying his hand, and began making loud grunting noises.
At approximately 7:56 p.m. Officer Pleich, a member of RPD’s Crisis Intervention Team, arrived at the group home. Officer Pleich spoke briefly with Ross and then went into Micah’s bedroom to speak with Micah. For the next ten minutes Officer Pleich spoke with Micah about voluntarily agreeing to go to a hospital to get some help, but he also discussed the possibility of placing Micah on a Legal 2000 hold if Micah was a danger to himself or others. During the conversation, Micah appeared aggravated and made grunting noises.
At 8:06 p.m. Officer Bond arrived and went to assist Officer Pleich. Both officers heard Micah exclaim that he was hearing voices telling him to do things. Micah then punched another hole in his wall. Officer Bond spoke with Ross who wanted to sign a criminal complaint against Micah so that Micah would learn that his behavior had consequences. Micah overheard Ross’ statement and became increasingly agitated, stating that he would not go willingly and that he would fight the officers if they tried to arrest him. At this point both Officer Pleich and Officer Bond determined that they had reasonable cause to arrest Micah for assault and that it was not safe for Micah or the other residents for Micah to remain at the group home.
At approximately 8:11 p.m., while the officers were discussing how they were going to proceed, Micah jumped from his bed towards the officers, told them that he had PTSD, and yelled that they couldn’t do “shit” to him. Micah then quickly turned around, climbed his bed, tore the shades from his bedroom window, and attempted to escape by throwing himself through his window. The window cracked, but held, and Micah fell back onto the bed where Officer Pleich and Officer Bond tried to arrest him. Micah ignored the officers’ verbal commands to place his hands behind his back and became physically combative, resisting the officers’ efforts to place him in handcuffs. The officers were able to get Micah on the ground and place him on his stomach, though Micah kept both arms clenched tightly beneath him. Micah continued to resist arrest and struggle with the officers, preventing them from getting either of his hands behind his back.
At 8:14 p.m., Officer Bond attempted to deploy his Taser into Micah’s shoulder area. However, with Micah’s continued struggling, the probes missed and embedded themselves in the mattress. Officer Bond then twice attempted to drive stun the Taser into Micah’s legs, but the Taser failed to make any sound and Micah made no reaction to the stun attempts. Thinking that his Taser was malfunctioning, Officer Bond threw the Taser across the room and moved to assist Officer Pleich with hands-on techniques. Officer Bond was eventually able to pry Micah’s right hand far enough behind his back to handcuff it, but Micah pulled his right hand - including the handcuff -back beneath his body. Officer Pleich then continued to try and hold Micah down, Officer Bond used his baton to strike Micah in the shoulder and attempted to pry Micah’s right hand from ...