United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
filed this action under 42 US.C. § 1983, alleging
excessive force arising from his arrest by Klamath Falls law
enforcement officers. Defendants now move for summary judgment
under Federal Rule of Civil Procedure 56, and plaintiff has
not responded to the motion. For the reasons explained below,
summary judgment is granted.
November 2, 2016, Cpl. Zupan, Ofc. Yahwhee, Ofc. Warner, and
Oregon State Police Sgt. Barden approached plaintiff near
Eagle Ridge High School. Zupan Decl. & Ex. 1 at 2;
Yahwhee Decl. Ex. 1 at 1. The officers had been advised that
plaintiff was wanted on an outstanding felony warrant and was
likely in possession of methamphetamine and a handgun.
Yahwhee Decl. Ex. 1 at 1; Warner Decl. at 2; Zupan Decl. Ex.
1 at 2. Plaintiff was wearing a sweatshirt and had his hands
in the front pockets; Cpl. Zupan and Ofc. Warner drew their
firearms and told plaintiff he was under arrest. Warren Decl.
Ex. 4 at 24-25; Warner Decl. at 2; Zupan Decl. Ex. 1 at 3.
Plaintiff looked in both directions and ran away, and
officers chased after him. Warren Decl. Ex. 1 at 4, Ex. 4 at
26; Zupan Decl. at 2; Yahwhee Decl. Ex. 1 at 2.
Ferns was in his police vehicle and saw plaintiff running
from the officers. Det. Ferns drove his car around the block
and into the parking lot of a gas station, where plaintiff
was running. Ferns Decl. at 2; Dentinger Decl. Ex. 1. Near
the gas pumps, Det. Ferns stopped his vehicle, jumped out,
and shouted to plaintiff that he was under arrest. Ferns
Decl. at 2. Det. Ferns attempted to tackle plaintiff, and he
and plaintiff fell to the ground. Id.; Dentinger
Decl. Ex. 1 at 15:07:17; Warren Decl. Ex. 4 at 15, 22.
Plaintiff was lying on his stomach with his arms underneath
him, and Det. Ferns, Ofc. Yahwhee, and Sgt. Barden attempted
to secure plaintiff's arms to handcuff him as he
struggled. Ferns Decl. Ex. 1 at 3; Yahwhee Decl. Ex. 1 at 2.
Ofc. Warner arrived at the scene and eventually secured
plaintiff's right arm. Warner Decl. at 3 & Ex. 1 at
2. Eventually, Det. Ferns was able to secure plaintiff's
left arm and handcuff him. Ferns Decl. at 2 & Ex. 1 at 3.
Ofc. Yahwhee reported that she heard a “popping
noise” just before handcuffs were secured around
plaintiff's left wrist. Yahwhee Decl. Ex. 1 at 2.
plaintiff was handcuffed, Lt. Daniel searched him for weapons
and contraband and found none. Daniel Decl. at 2 & Ex. 1
at 1. Plaintiff said that his left arm hurt, and Lt. Daniel
transported him to the Sky Lakes Medical Center for
was diagnosed with an ulnar fracture in his left arm and
received treatment before he was transported to the Klamath
County jail. Id. at 3 & Ex. 2; Warren Decl. Ex.
1 at 4, Ex. 4 at 6; Plaintiff's arm was in a soft cast
splint for two weeks. Warren Decl. Ex. 4 at 5, 7-8.
was indicted on several offenses, including the possession
and delivery of methamphetamine, escape, and resisting
arrest. Id. Ex. 2. As part of a plea agreement,
plaintiff pled guilty to delivery of methamphetamine and the
remaining counts were dismissed. Id. Ex. 3.
Plaintiff was remanded to the Oregon Department of
Corrections and needed no further treatment for his arm.
Id. Ex. 4 at 4, 6.
alleges that officers used excessive force when they yanked
on his left arm to place him in handcuffs, causing a fracture
in his left arm. Defendants maintain that the force used was
reasonable and necessary under the circumstances. To prevail
on their motion for summary judgment, defendants must show
that there is no genuine dispute as to any material fact and
they are entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The court must construe the evidence
and draw all reasonable inferences in the light most
favorable to plaintiff. Torres v. City of Madera,
648 F.3d 1119, 1123 (9th Cir. 2011).
Fourth Amendment requires police officers making an arrest to
use only an amount of force that is objectively reasonable in
light of the circumstances facing them.”
Blankenhorn v. City of Orange, 485 F.3d 463, 477
(9th Cir. 2007). “Determining whether the force used to
affect 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.”
Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting
Tennessee v. Garner, 471 U.S. 1, 8 (1985)). When
evaluating the government's interest in using force, the
Court must consider “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.” Id. at 396. Ultimately, the issue is
whether the totality of the circumstances justified the force
does not allege excessive force against all named defendants.
Instead, he claims that only Cpl. Zupan used unnecessary
force against him. Plaintiff explains that he is suing the
other officers involved in his arrest because they allowed
Cpl. Zupan to use excessive force against him. Warren Decl.
Ex. 1 at 5-6. However, liability under § 1983
“arises only upon a showing of personal participation
by” each defendant, and plaintiff cannot sustain claims
against officers who did not participate in the allegedly
unlawful force. Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989).
respect to Cpl. Zupan, plaintiff testified as follow during
And then I was laying there, and Chris Zupan, I seen, noticed
later, yells, “stop resisting, stop resisting.”
And he punched me twice in the back of the head and slammed
his knee in the back of my head and tries to slam my face in
the ground. And then he jumped on the side of me, behind the
other officer and put his foot in my side and ...