Leonard R. Berman, Portland, OR, Attorney for Plaintiff.
Gerald L. Warren, Salem, OR, Attorney for Defendants.
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Plaintiff John Deconnick brings this 42 U.S.C. § 1983 action against Defendants City of Seaside and City of Seaside Police Officer Joshua Zundel. Plaintiff raises Fourth Amendment claims of excessive force and unreasonable seizure against Zundel and state law claims of battery and negligent hiring, training, and supervision against the City.
Defendants and Plaintiff move for summary judgment on all claims. Defendants argue that (1) the Fourth Amendment excessive force and unreasonable seizure claims fail as a matter of law and, alternatively, Defendant Zundel has qualified immunity; (2) the battery claim fails because Defendant Zundel's actions were justified; and (3) the negligent hiring, training, and supervision claims fail as a matter of law. Because I agree with Defendants that Zundel is entitled to qualified immunity on the excessive force claim and that the unreasonable seizure claim as well as the state law negligence claims fail as a matter of law, I grant Defendants' motion as to those claims. However, because I find issues of fact going to the reasonableness of the force used, I deny Defendants' motion as to the battery claim. I deny Plaintiff's motion.
Late on Saturday, August 21, 2010, and into the morning hours of Sunday, August 22, 2010, Plaintiff John Deconnick was working as a bouncer at Pudgy's Bar in Seaside, Oregon. Jeffrey Oja Decl. ("Oja Decl.") ¶¶ 2-3; see also Ex. 1 to Gerald L. Warren Decl. ("Warren Decl.") at 4 (Pl.'s Dep.). While on duty at Pudgy's, Plaintiff wore a black hooded sweatshirt, known as a "hoody, " that read "Security" in small yellow print on the left front breast of the sweatshirt and in large yellow print on its center back. John Deconnick Decl. ("Deconnick Decl.") ¶ 2; Ex. 1 to Warren Decl. at 19, 52-53.
Defendant Joshua Zundel was at that time and remains currently employed as an officer for the City of Seaside Police Department. Joshua Zundel Decl. ("Zundel Decl.") ¶ 1. At around 1:20 a.m. on August 22, 2010, Zundel and Officer Jeffrey Oja entered Pudgy's during a routine bar check. Oja Decl. ¶¶ 2-3. Because of these routine bar checks, Zundel and Plaintiff were professional acquaintances. Deconnick Decl. ¶ 3; Ex. 1 to Warren Decl. at 9-10.
Earlier that night, Pudgy's patrons Scott Lucia and Wade Horning were acting unruly and were asked to leave the bar. Ex. 1 to Warren Decl. at 20; Ex. 2 to Warren Decl. at 18 (William Nielsen Dep.). While some of the details of Lucia and Horning's removal from Pudgy's are unclear, the essence is undisputed. Horning, accompanied by Officers Oja and Zundel, exited the bar through the front door while Lucia, accompanied by Plaintiff, remained inside to pay. Ex. 1 to Warren Decl. at 24-25; see also Zundel Decl. ¶ 4. Officers Oja and Zundel stood outside the bar's front door speaking with Horning. Oja Decl. ¶ 4; Zundel Decl. ¶¶ 4-5.
After Lucia paid, Plaintiff began to escort Lucia out of the bar by walking behind him toward the front exit. Ex. 1 to Warren Decl. at 25. When Lucia passed William Nielsen, Pudgy's off-duty general manager, Lucia made a motion to push Nielsen. Id . at 25-26; Ex. 2 to Warren Decl. at 5. Plaintiff tried to stop Lucia by wrapping his arms around Lucia in a bear hug. Ex. 1 to Warren Decl. at 25-26. Plaintiff and Lucia both fell to the ground. Id . at 26, 29. Both stood up and faced each other, with Plaintiff facing the front door, trying to push Lucia down the hall toward it. Id . at 30. Lucia tried to punch Plaintiff, and they again fell to the ground, knocking over a potted plant. Id . at 39. Lucia grabbed at Plaintiff's clothes. Id . at 40. The fight was "out of control." Id . at 39. Other Pudgy's patrons surrounded Plaintiff and Lucia, yelling and screaming. Id . at 40. Plaintiff tried to subdue Lucia by wrapping his arm around Lucia's neck, and clung to Lucia's back, feet off the ground, both facing away from the front door. Id . at 41, 43, 48. Plaintiff's "Security" sweatshirt was bunched halfway up his torso. Id . at 41, 47; Deconnick Decl. ¶ 6.
While the officers were outside talking to Horning, Zundel heard a commotion coming from inside the bar. Zundel Decl. ¶ 5. Through the window, Zundel could see two men, both facing away from him, fighting in the hallway near the front door. Id . Zundel did not recognize either man. Id . Zundel entered the bar and approached the fight. Id . ¶ 6. Although Zundel yelled "Police" and ordered the men to separate, Plaintiff did not hear him. Id . ¶ 6; Ex. 1 to Warren Decl. at 41. Plaintiff and Lucia continued fighting. Zundel Decl. ¶ 6; see also Deconnick Decl. ¶ 4. Because of the crowd, Zundel determined that going "hands on" to separate the fighting men would put his safety in danger. Zundel Decl. ¶ 6. He also decided against pepper spray because it would disperse into the crowd and affect more than just the men fighting. Id.
Zundel took out and activated his Taser X26. Id . ¶ 7. He yelled "Taser, Taser, Taser, " but Plaintiff did not hear him, and the men did not stop fighting. Id .; Deconnick Decl. ¶ 5; Ex. 1 to Warren Decl. at 44. Pudgy's waitress Jessica Biros approached the scene and yelled at Zundel not to taser Plaintiff because Plaintiff was a Pudgy's employee. Jessica Biros Decl. ¶¶ 2, 5. Patron Amanda Jenkins also approached Zundel and said "don't tase him! That's the bouncer, he works here." Amanda Jenkins Decl. ¶¶ 2, 5. Zundel did not hear anyone identify Plaintiff as a bouncer, an employee, or John Deconnick, nor did he hear anyone yell not to use his Taser. Joshua Zundel Supp'l Decl. ¶ 2. Zundel fired the Taser at the man whose back was visible to him. Zundel Decl. ¶ 7. The Taser's prongs struck Plaintiff's bare back, and the Taser activated for a five-second cycle. Id . The Taser incapacitated Plaintiff, and the fight broke up as a result. Ex. 2 to Warren Decl. at 28; Zundel Decl. ¶ 7. Officer Oja, who had entered behind Zundel, secured Lucia, while Plaintiff stood up on his own. Ex. 1 to Warren Decl. at 50-51; Oja Decl.¶ 4; Zundel Decl. ¶¶ 7-8. Zundel personally knows both Lucia and Horning, who were arrested. Zundel Decl. ¶¶ 4, 7, 9. Plaintiff was not arrested. Id . ¶ 9. Zundel called paramedics, who removed the Taser probes from Plaintiff's back. Id . ¶ 8; Ex. 2 to Warren Decl. at 30.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present specific facts showing a genuine issue for trial. Fed. Trade Comm'n v. Stefanchik , 559 F.3d 924, 927-28 (9th Cir. 2009). The nonmoving party must go beyond the pleadings and designate facts showing an issue for ...