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Wimett v. Sothern

United States District Court, D. Oregon, Portland Division

August 14, 2014



MICHAEL W. MOSMAN, District Judge.

Plaintiff Richard Charles Wimett filed suit against Defendant City of Portland, as well as Defendants Sean Sothern, Mark Friedman, Katie Manus, Wade Greaves, and Grant Smith, each an officer of the Portland Police Bureau, asserting claims under 42 U.S.C. § 1983. (3d Am. Compl. [80] at 1.) He alleges that each officer deprived him of the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures, and claims that Officer Sothern in particular used excessive force during his arrest. Id. at 20-27, 28-29. He also accuses Officer Sothern of malicious prosecution. Id. at 27-28. Defendants move [96] for summary judgment. Because Mr. Wimett has raised a genuine dispute of material fact as to whether Officer Sothern used reasonable force, I deny summary judgment on the excessive force claim, as against both the officer and the City of Portland. I grant the motion in all other respects.


On August 7, 2010, Alex Talakoub[1] of Medallion Jewelers, located at 308 Southwest Alder Street in Portland, called 911. (Wimett Decl. [155-1] Ex. 4 at 19:2-5, ECF p.6; Ex. 17 at 2, ECF p.59.)[2] He reported that the culprit in a prior robbery at a different, unspecified location was currently in the store. (Wimett Decl. [155-1] Ex. 4 at 19:7-20:2, ECF p.6.) In response to the dispatcher's questions, Mr. Talakoub described the suspect as a tall, slim, white man in his forties, wearing pants and a pink jacket. Id. at 20:5-22.

The dispatcher broadcast the following description over police radio at 12:14 pm:


(Rice Decl. [98-2] Ex. 3 at 1.) A Portland police officer recalled that "a getaway car" was parked nearby the previous day, and that the suspect at the time was described as "a white male about 30 years, 5'8", about 230 pounds, " who "was wearing a suit, unshaven and he had a wig on." (Wimett Decl [155-1] Ex. 4 at 21:22-22:4, 23:22-24:1, ECF p.7.) The officer also clarified that the crime was a theft, not a robbery, but that the stolen goods were of "high value." Id. at 22:21-23. This information was broadcast to other police officers in the area, including Officer Sothern. (Rice Decl. [98-2] Ex. 3 at 1.)

I. Officer Sothern's Initial Encounter with Mr. Wimett

Officer Sothern responded to the scene. (Wimett Decl. [155-1] Ex. 2 at 1, ECF p.1.) As he parked his police vehicle, he saw inside Medallion Jewelers a man whose "physical description and clothing matched the description broadcast by" the dispatcher. Id. This was Mr. Wimett. Id. Officer Sothern lost sight of Mr. Wimett as he crossed Southwest Alder Street, but spotted him again outside the store soon afterward, "walking intently." Id. Officer Sothern "stepped into [Mr. Wimett's] path" and asked whether he was in the store earlier. Id.

According to Officer Sothern, Mr. Wimett looked from side to side and answered, "No." Id. Mr. Wimett denied having identification on his person. Id. When Officer Sothern asked where his identification was, Mr. Wimett turned and walked "around [a] concrete stairwell, " then grabbed a bicycle and sprinted away, attempting to mount it. Id.

II. Mr. Wimett's Arrest

Officer Sothern lunged for Mr. Wimett's torso, but instead grabbed a large backpack he was wearing. Id.; Sothern Decl. [99] ¶ 3. Both men fell to the ground. (Wimett Decl. [155-1] Ex. 2 at 1, ECF p.1.) Officer Sothern recalls that the prone Mr. Wimett "swung one of his arms" and attempted to regain his footing. Id. Officer Sothern "took control" of one of Mr. Wimett's arms, and commanded him to "put [his] other arm out." Id. Mr. Wimett chose instead to conceal his other arm under his body. Id. As Officer Sothern attempted to roll Mr. Wimett from his side onto his stomach, Mr. Wimett swung his head toward the officer, striking "the inside of [Officer Sothern's] right arm" with his teeth. Id. To avoid being bitten, Officer Sothern "struck [Mr.] Wimett on the right side of his head with [Officer Sothern's] forearm and elbow." Id. The officer commanded Mr. Wimett repeatedly to extend his other arm, but Mr. Wimett refused. Id. Eventually, Officer Sothern managed to roll Mr. Wimett onto his stomach. Id.

Mr. Wimett persisted in tucking his left arm underneath his body, frustrating Officer Sothern's attempts to secure it. Id. Officer Sothern took hold of his TASER and yelled, "Put your other arm out and stop fighting or I will tase you." Id. When Mr. Wimett again failed to comply, Officer Sothern fired the TASER's probes into Mr. Wimett's "middle back" from "about 12 inches away." Id. After cycling current through the probes for the first time, he again ordered Mr. Wimett to extend his arm, without results. Id. at 1-2, ECF pp.1-2. Officer Sothern cycled the TASER again, after which Mr. Wimett attempted to stand. Id. at 2, ECF p.2. After a third cycle, Mr. Wimett ceased "pulling away or trying to get up." Id. Either accidentally or deliberately, Officer Sothern cycled the TASER a fourth time, and handcuffed Mr. Wimett as the device delivered current. Id.; Ex. 14 at 2, ECF p.50.

Mr. Wimett testified at deposition that he lost consciousness during the altercation. (Rice Decl. [98-1] Ex. 1 at 94:1-2, 6-12.) He remained unconscious throughout, except for a moment when he awoke only to have Officer Sothern "beat[ him] unconscious" again. Id. at 94:9-10. Accordingly, he disclaims any memory of what happened during his arrest. Id. at 94:14

III. Search of Mr. Wimett's Person and Effects

Officer Sothern and Officer Smith, who had arrived at the scene by this time, conducted a pat-down search of Mr. Wimett's clothing. (Wimett Decl. [155-1] Ex. 2 at 2, ECF p.2.) When Mr. Wimett refused to tell Officer Sothern his name, Officer Sothern asked where he could find Mr. Wimett's identification. Id. Mr. Wimett again did not respond. Id. Officer Sothern asked him whether his backpack contained any identification, and Mr. Wimett nodded. Id. Officer Sothern then asked whether he "could get [Mr. Wimett's] ID, " and Mr. Wimett "nodded again." Id. The officer searched the backpack. Id. Rather than Mr. Wimett's identification, however, he found a card bearing the name of Mr. Wimett's parole officer. Id. Mr. Wimett acknowledged that the parole officer's card belonged to him, and told Sergeant Friedman his name and date of birth. Id. Officer Manus continued the search of the backpack. (Wimett Decl. [155-1] Ex. 17 at 1, ECF p.58.)

When additional officers arrived to assist, Officer Smith entered Medallion Jewelers and spoke with Mr. Talakoub. Id. at 2, ECF p.59. Mr. Talakoub told him that Mr. Wimett had left a backpack and a pair of shoes in the store when he left. Id. Officer Smith left the store with the backpack and shoes. Id. On hearing that Mr. Wimett still had not told Officer Sothern his name, Officer Smith searched the second backpack for identification. Id. Instead, he found nothing but clothing. Id.

Medical staff removed the TASER probes from Mr. Wimett's back and directed that he be transferred to OHSU to be treated for potential trauma. (Wimett Decl. [155-1] Ex. 2 at 2, ECF p.2.) Officer Smith followed Mr. Wimett to OHSU. Id. at 2-3, ECF pp.2-3. Officer Sothern later relieved him. Id. at 3, ECF p.3.

IV. Prosecution and § 1983 Action

The State of Oregon obtained an indictment against Mr. Wimett, alleging numerous crimes including resisting arrest, escape, and theft of various items found in one of his backpacks. (Rice Decl. [98-3] Ex. 5 at 1-2; Wimett Decl. [155-1] Ex. 2 at 2, ECF p.2.) As a result, a Multnomah County Hearings Officer ordered 120 days' incarceration as a parole sanction. (Gatto Decl. [159] ¶¶ 5-6.) Soon after his release, he was arrested and charged with robbery, burglary and other crimes in a second indictment. Id. ¶¶ 7-10; Rice Decl. [98-4] Ex. 6 at 1-3. The two indictments were consolidated, and the first indictment was dismissed in exchange for Mr. Wimett's agreement to plead guilty to two counts in the second. (Rice Decl. Ex. 7 [98-5] at 1; [98-6] Ex. 8 at 2.)

Mr. Wimett filed suit in this Court on August 3, 2012, alleging claims against five officers of the Portland Police Bureau, Mayor Adams, the Bureau itself, Multnomah County, Mr. Talakoub, and several others. (Compl. [2] at 1-2.) I dismissed the complaint without prejudice, permitting Mr. Wimett to proceed only against the Portland Police Bureau and Officers Sothern, Friedman, Manus, and Greaves. (Order [7] at 6.) I then struck Mr. Wimett's first amended complaint [24] for failing to set out all of his allegations against all defendants. (Order [26] at 1-2.) Later, I adopted Judge Hubel's recommendation that Mr. Wimett's second amended complaint be dismissed with leave to amend. (F&R [54] at 12; Op. & Order [57] at 2.) Mr. Wimett filed his Third Amended Complaint [80], the operative pleading at present, on December 6, 2013. Defendants filed a motion for summary judgment on February 18, 2014, on the ground of qualified immunity. (Mot. [96] at 1-2; Mem. in Supp. [97] at 16.) Mr. Wimett submitted a response [153], and Defendants replied [158]. Mr. Wimett followed up with a surreply [166].


Summary judgment is proper where "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). The Court must view the evidence in the light most favorable to the nonmoving party, drawing in his favor all reasonable inferences from the facts. T.W. Elec. Serv. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

The moving party bears the initial burden of informing the court of the basis of its motion and providing evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden is met, the nonmoving party must "present significant probative evidence tending to support its claim or defense." Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (internal quotation omitted). The nonmoving party fails to meet its burden if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).


Mr. Wimett asserts eight claims in total. The first four allege that Officers Sothern, Manus, Smith, and Friedman seized his person and searched his backpacks without probable cause or other justification. (3d Am. Compl. [80] at 20-24.) In his fifth claim, Mr. Wimett alleges "assault and battery" against Officer Sothern under the Fourth Amendment. Id. at 24-26. His sixth claim alleges "false arrest and false imprisonment" against Officer Sothern, apparently based on an assertion that the officer lied to the grand jury. Id. at 26-27. The seventh claim accuses Officer Sothern of malicious prosecution. Id. at 27-28. Finally, in the eighth claim, Mr. Wimett alleges that all five officers conspired to deprive him of his constitutional rights. Id. at 28-29. Mr. Wimett does not level any of these eight claims at the City of Portland expressly, but I understand his complaint to allege that the City is liable on all claims.

A § 1983 claim has two elements: (1) a violation of a federal constitutional or statutory right that was (2) committed under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). "[A] municipality cannot be held liable under § 1983 on a respondeat superior theory, " but may be held to account for deprivations resulting from local government policy or custom. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690-91 (1978). Even absent a policy or custom, a municipality may be liable under § 1983 if a municipal officer with "final policymaking authority" (1) caused the deprivation personally, (2) ratified the constitutional violation of a subordinate, or (3) harbored deliberate indifference to the unconstitutional consequences of a subordinate's conduct. Christie v. Iopa, 176 F.3d 1231, 1235, 1238-39, 1240 (9th Cir. 1999).

Government officials enjoy immunity from liability for damages in a § 1983 action unless "the official violated a statutory or constitutional right, " and "the right was clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A district court may address either of these two elements of the qualified immunity defense before the other. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). A right is clearly established if, at the time of the alleged wrongful conduct, the right's "contours'" are "sufficiently clear' that every reasonable official would have understood that what he is doing violates that right.'" Id. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Qualified immunity is available to municipal officials. See Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1092 (9th Cir. 2013).

I. Unreasonable Search and Seizure by Officer Sothern

Mr. Wimett alleges that Officer Sothern unlawfully seized him on August 7, 2010. (3d Am. Compl. [80] at 20.) The seizure resulted when Officer Sothern stepped into Mr. Wimett's path as he attempted to cross the street. Id. at 20-21. In the context of a different claim, Mr. Wimett also accuses Officer Sothern of "falsely arrest[ing]" him. Id. at 26. As an arrest is a paradigmatic Fourth Amendment seizure, I analyze the initial stop and subsequent arrest ...

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