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Zimmerman v. Ferns

United States District Court, D. Oregon

May 10, 2018

KEVIN WADE ZIMMERMAN, Plaintiff,
v.
SEAN FERNS; BILL WARNER; CHRIS ZUPAN; DERREK ELLENA; JACK DANIEL; LABEADS YAHWHEE; JOHN HANNS; CLIFF BARDEN, Defendants.

          OPINION AND ORDER

          Michael J. McShane United States District Judge

         Plaintiff filed this action under 42 US.C. § 1983, alleging excessive force arising from his arrest by Klamath Falls law enforcement officers.[1] Defendants now move for summary judgment under Federal Rule of Civil Procedure 56, and plaintiff has not responded to the motion.[2] For the reasons explained below, summary judgment is granted.

         BACKGROUND

         On 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.

         Det. 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.

         After 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 examination. Id.

         Plaintiff 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.

         Plaintiff 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.

         DISCUSSION

         Plaintiff 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).

         “The 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 used. Id.

         Plaintiff 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).

         With respect to Cpl. Zupan, plaintiff testified as follow during his deposition:

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 ...

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