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Smalley v. Kinsella

United States District Court, D. Oregon

October 17, 2017

JOSHUA SMALLEY, Plaintiff,
v.
JAMES KINSELLA, Police Officer, City of Bend Police, Defendant.

          OPINION AND ORDER

          Ann Aiken United States District Judge.

         Plaintiff, a former inmate at the Oregon State Penitentiary, brings this action pursuant to 42 U.S.C. § 1983 against James Kinsella, a City of Bend police officer. Plaintiff alleges that Officer Kinsella used excessive force by deploying a canine against plaintiff when effectuating his arrest. Plaintiff seeks costs and compensatory damages.

         Defendant moves to dismiss plaintiffs claim on grounds it is barred by the principles of Heck v. Humphrey, 512U.S. 477 (1994) and qualified immunity. Defendant's motion is granted and this case is dismissed.

         BACKGROUND

         On March 6, 2016, Officer Kinsella heard a call over dispatch about a disturbance at the Crest Butte Apartment Complex in Bend, Oregon. Kinsella Decl. at 2. Dispatch advised that the female caller reported that plaintiff had punched her neck and kicked her back in the presence of her toddler daughter. Officer Kinsella did not initially respond to the call. Id.

         Shortly afterward, a responding police officer called Officer Kinsella and informed him that officers could not locate plaintiff at the scene. The officer asked Officer Kinsella to bring his police canine, Haras, to the scene and attempt to locate plaintiff. Id.

         Officers Kinsella and Jake Chandler arrived at the Crest Butte Apartment Complex at approximately the same time. Id. at 3. They noticed an individual gesturing at them and pointing toward the south end of the apartment complex. Officer Kinsella saw a man he recognized as plaintiff crouched near the south end of building. Id.

         As Officers Kinsella and Chandler walked toward plaintiff, Officer Kinsella called out to plaintiff and asked him to stand up and turn around. Plaintiff responded, "Fuck you! I'm talking to my mom." Id. at 3. Plaintiff then rose from his crouched position and turned toward Officer Chandler, raising his fists. Plaintiff then began bouncing on his feet and charged toward Officer Chandler with raised fists. Chandler Decl. at 3. As Officer Chandler reached for his taser, Officer Kinsella deployed Haras, who bit plaintiff on the upper right arm and apprehended him. Id.; Kinsella Decl. at 3-4. Officer Kinsella and two other officers then surrounded plaintiff and handcuffed him, and Haras released plaintiff. Officers called paramedics to the scene pursuant to police department policy. Kinsella Decl. at 4. Officer Kinsella and Haras had no further contact with plaintiff.

         Plaintiff was indicted on charges of Attempted Assault of a Public Safety Officer, Resisting Arrest, and Assault in the Fourth Degree. Franz Decl. Ex. 103. On June 9, 2016, plaintiff pled guilty to Attempted Assault on a Public Safety Officer and stated, "on or about 3-6-16 in Deschutes County, OR, I did attempt to cause physical injury to Officer Chandler, a person I knew to be a peace officer, while Officer Chandler was acting in the course of official duty." Id. Exs. 101, 104 at 3.

         On March 28, 2016, plaintiff filed this action against Officer Kinsella (as the canine officer) and several other defendants. The court dismissed most of plaintiffs claims and ultimately allowed plaintiff to file an amended complaint naming Officer Kinsella as the sole defendant.

         On June 26, 2017, Officer Kinsella moved for summary judgment. Plaintiff has not responded after being provided with the required summary judgment notice. Further, legal mail sent to plaintiff at his last known address has been returned, and plaintiff has not updated his address with the court.

         DISCUSSION

         Officer Kinsella moves for summary judgment on grounds that plaintiffs claim implicates the validity of his conviction for Attempted Assault on a Public Safety Officer and runs afoul of the rule articulated in Heck v. Humphrey, 512 U.S. 477, 487 (1994). See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam) (Under Heck, "if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed"). Officer Kinsella also argues that the deployment of Haras was not excessive and he is entitled to qualified immunity, as he did not violate a clearly established Fourth Amendment right of which a reasonable officer would have known.

         Regardless of Heck's application, I agree that Officer Kinsella is entitled to qualified immunity. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan,555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To ascertain whether qualified immunity applies, the court determines whether a deprivation of a constitutional right occurred and whether that right was clearly established at the time of the deprivation. Id. at 231-32; Nelson v. City of Davis, ...


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