United States District Court, D. Nevada
January 4, 2017
PAUL WEDDLE, Plaintiff,
ALAN NUTZMAN et al., Defendants.
C. JONES United States District Judge.
case arises out of allegedly excessive force during an
arrest. Pending before the Court is Defendants' Motion
for Summary Judgment (ECF No. 34).
FACTS AND PROCEDURAL HISTORY
about March 2, 2014, Plaintiff Paul Weddle was arrested after
his unauthorized use of an aircraft at the Boulder City
Airport. (See Am. Compl. ¶ 9, ECF No. 30).
Plaintiff alleges he was “assaulted and battered”
despite not resisting or assaulting the arresting officers.
(See id.). He has sued Officers Alan Nutzman, Chad
Richner, David Olson, and Todd Cazet, as well as the City of
Boulder City (“the City”) in this Court for: (1)
violation of the Fourth Amendment under 42 U.S.C. §
1983; (2) intentional infliction of emotional distress
(“IIED”); (3) battery; (4) negligence; and (5)
civil rights conspiracy under § 1985. Defendants have
moved for summary judgment.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
state a claim under § 1983, a plaintiff must allege: (1)
that a right secured by the Constitution or laws of the
United States was violated; and (2) that the alleged
violation was committed by a person acting under color of
state law. See West v. Atkins, 487 U.S. 42, 48
(1988). There is no respondeat superior liability under
§ 1983. See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691 (1978). In order to hold a municipality
liable for the actions of its officers, the allegedly
unconstitutional actions must have been pursuant to an
official municipal policy, ordinance, regulation, or
officially adopted decision. Monell v. N.Y. City
Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978).
The Court of Appeals has explained:
In a Monell claim, there are three ways to show a
policy or custom of a municipality: (1) by showing a
longstanding practice or custom which constitutes the
standard operating procedure of the local government entity;
(2) by showing that the decision-making official was, as a
matter of state law, a final policymaking authority whose
edicts or acts may fairly be said to represent official
policy in the area of decision; or (3) by showing that an
official with final policymaking authority either delegated
that authority to, or ratified the decision of, a
Villegas v. Gilroy Garlic Festival Ass'n, 541
F.3d 950, 964 (9th Cir. 2008) (citations and internal
quotation marks omitted).
persons sued in their individual capacities may enjoy
qualified immunity against claims of constitutional
violations. Kentucky v. Graham, 473 U.S. 159, 166-67
(1985). An official is not entitled to qualified immunity if:
(1) there has been a constitutional violation; and (2) the
state of the law was clear enough at the time of the
violation that a reasonable person in the defendants'
position would have known his actions violated the
plaintiff's rights. Saucier v. Katz, 533 U.S.
194, 201 (2001). Courts have discretion to address the second
prong of the Saucier test first in order to avoid
unnecessary constitutional rulings. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). A “clearly
established” right for the purpose of qualified
immunity is one that has been announced by the Supreme Court
or the relevant Court of Appeals, i.e., binding authority.
See Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th
constitutional reasonableness of a seizure is examined under
Determining whether the force used to effect a particular
seizure is “reasonable” under the Fourth
Amendment requires a careful balancing of “‘the
nature and quality of the intrusion on the individual's
Fourth Amendment interests'” against the
countervailing governmental interests at stake. Our Fourth
Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with
it the right to use some degree of physical coercion or
threat thereof to effect it. Because “[t]he test of
reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application, ”
however, its proper application requires careful attention to
the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.
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.
. . . With respect to a claim of excessive force, the same
standard of reasonableness at the moment applies: “Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, ” violates the
Fourth Amendment. The calculus of reasonableness must embody
allowance for the fact that police officers are often forced
to make split-second judgments-in circumstances that are
tense, uncertain, and rapidly evolving-about the amount of
force that is necessary in a particular situation.
Graham v. Connor, 490 U.S. 386, 396-97 (1989)
Court finds that the individual Defendants are entitled to
summary judgment against the excessive force claim under
§ 1983 based on qualified immunity. There is no clear
precedent indicating that the officers' actions in this
case violated the Fourth Amendment. Defendants responded to a
call that Plaintiff had stolen an aircraft, and they watched
while Plaintiff conducted “touch-and-gos” before
parking the aircraft. In the three “dash cam”
videos adduced by both sides, several officers can be seen
approaching the aircraft with weapons drawn, yelling at
Plaintiff to exit the aircraft. Plaintiff is seen lowering a
rope ladder, climbing down it, and standing with his hands up
at chest to shoulder level to face the two officers nearest
him. One officer, who appears barely as tall as
Plaintiff's shoulders, then pulls Plaintiff forward to
the ground by his left arm. Plaintiff strikes his face
against the ground, but it appears to occur slowly enough
that Plaintiff has time to partially break his fall with his
right hand. Plaintiff struck his face not because his head or
neck was grabbed, but because he bent at the waist as he was
pulled forward by the left arm, in an apparent attempt to
resist going to the ground (Plaintiff crouches slightly
before the officer grabs him, as if to defend his stance and
resist being moved), and then lost his balance. The officer
then stands above Plaintiff and shackles his hands behind his
back. Two other officers then appear to inspect the plane
from the ground with flashlights while asking Plaintiff if is
there is anyone else inside. After approximately one minute,
officers help Plaintiff to a sitting position, telling him to
keep his legs straight. When he does not respond, one officer
yells again for him to keep his legs out and kicks his feet
forward. Plaintiff remains in that seated position for
approximately twenty more minutes, at which point he is
slowly helped to his feet and led away.
the takedown nor the foot-kick constituted force that would
be recognized by an officer as clearly excessive. Plaintiff
was known to have stolen an aircraft and flown it without
clearance. It was unknown whether he was armed, and the quick
takedown was reasonably necessary to ensure the safety of the
arresting officer facing a very large, unrestrained man who
had just exited a stolen vehicle. A quick motion by a large
unrestrained man could have permitted him to run free,
injured the arresting officer, or even wrestled away the
arresting officer's pistol. The only other act of force
used was the kick to Plaintiff's foot to force his leg
straight when he ignored a command to straighten it himself.
cites a case where an officer shot a mentally-ill suspect who
had not committed any serious offense in the face with a
12-gauge shotgun loaded with a lead-filled
“beanbag” from a lethal distance of 30-feet,
knocking the suspect off of his feet, destroying one of his
eyes, and leaving lead shot in his skull. See Deorle v.
Rutherford, 272 F.3d 1272, 1275, 1279-80 (9th Cir.
2001). The force used here was of such a lesser magnitude,
and the offense of which Plaintiff was suspected was of such
a greater magnitude, that the Court cannot say the
Deorle case put Defendants on clear notice that the
force used here would be excessive (even assuming a
reasonable jury could find it to have been).
is there evidence adduced implicating the City in any policy
or custom of unconstitutional conduct as to excessive force,
so the Monell claim fails. And § 1985(3) only
applies to equal protection-type claims, i.e., where the
motivation of the conspirators is based on race or some other
protected class. Gerritsen v. de la Madrid Hurtado,
819 F.2d 1511, 1518 (9th Cir. 1987) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)). Plaintiff makes
no such allegations. Plaintiff has agreed to abandon the
Monell and § 1985 claims. Finally, the Court
declines jurisdiction over the state law claims. See
28 U.S.C. § 1367(c)(3).
HEREBY ORDERED that the Motion for Summary Judgment (ECF No.
34) is GRANTED IN PART and DENIED IN PART.
FURTHER ORDERED that the Clerk shall enter judgment as to the
federal claims and close the case.