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Uribe v. Greiner

United States District Court, D. Oregon

October 25, 2019

JUSTIN PATRICK URIBE, Plaintiff,
v.
GREINER, City of Tillamook Police Officer; BOMAR, Sergeant, City of Tillamook Police Officer; WRIGHT, Chief, City of Tillamook Police Officer, Defendants.

          OPINION AND ORDER

          Michael J. McShane United States District Judge

         Plaintiff filed this action under 42 US.C. § 1983, alleging that defendants used excessive force in violation of the Fourth Amendment when effectuating his arrest in December of 2017. Defendants now move for summary judgment under Federal Rule of Civil Procedure 56, arguing that plaintiff's claims are barred, and that defendants' actions did not violate his constitutional rights. Because plaintiff fails to show that defendants' use of force was excessive under the totality of the circumstances, defendants' motion for summary judgment is granted.

         BACKGROUND

         On December 6, 2017, City of Tillamook Police Officer Dennis Greiner was dispatched to the Fred Meyer store in Tillamook, Oregon, based on a reported disturbance between plaintiff and his girlfriend. Greiner Decl. ¶ 4 (ECF No. 51).

         Prior to Officer Greiner's arrival, Fred Meyer employees observed plaintiff physically assaulting his girlfriend as he either led or dragged her through the store. Renault Decl. ¶¶ 3-5 (ECF No. 52).[1] A Fred Meyer Loss Prevention Officer, Nick Renault, was notified, and Renault confronted plaintiff and told him to release his girlfriend. Plaintiff complied and Renault ordered plaintiff to leave the store. Id. ¶ 6.

         Plaintiff began walking backwards towards the exit; he then stopped and began walking towards Renault, who warned plaintiff to leave the store. Id. ¶ 7. As plaintiff walked backwards towards the exit, he reached behind his back and Renault ordered him to keep his hands out of his pockets. After plaintiff initially complied, he again reached behind his back. Id. Renault yelled, “This is your last warning, don't do it! Leave now!” Id. Plaintiff walked out of the store, and Renault called 9-1-1. Renault Decl. ¶ 7.

         As he was talking with the 9-1-1 dispatcher, Renault went outside to locate plaintiff, who was getting into his vehicle. Id. ¶ 8. After a few seconds, plaintiff got out of his car and Renault told him that if he did not leave immediately, it would be a criminal trespass and the police “would be involved.” Id. After hearing that the police would be arriving, plaintiff got back into his car and drove around the parking lot to the store entrance. Id. Officer Greiner arrived on the scene in his police vehicle and pulled in behind plaintiff. Id.

         When Officer Greiner arrived, he observed plaintiff near the store entrance, shouting at Renault. Greiner Decl. ¶ 5. Officer Greiner exited his vehicle and instructed plaintiff to show his hands and remove the keys from the ignition; plaintiff complied. Id. ¶ 6. Officer Greiner also asked plaintiff to exit the vehicle and place his hands on the roof, and plaintiff again complied. Id. City of Tillamook Police Sergeant Erica Bomar arrived at the scene around this time. Bomar Decl. ¶ 6 (ECF No. 50).

         As plaintiff placed his hands on the vehicle, Officer Greiner moved forward to place plaintiff into handcuffs. Greiner Decl. ¶ 7. Plaintiff pulled away and struck the left side of Officer Greiner's face with his left elbow. Id. Officer Greiner and plaintiff struggled briefly, and Officer Greiner kicked plaintiff's legs from beneath him - sometimes called a “leg sweep” - and both plaintiff and Officer Greiner fell to the ground. Id. As Officer Greiner attempted to place plaintiff into handcuffs, plaintiff struggled with Officer Greiner and attempted to stand up and get into his car. Bomar Decl. ¶ 7.

         Sgt. Bomar and Renault tried to assist Officer Greiner in handcuffing plaintiff, but plaintiff pulled his arms underneath his body to avoid the handcuffs. Greiner Decl. ¶ 9; Bomar Decl. ¶ 8. Eventually, Sgt. Bomar was able to handcuff plaintiff's right wrist, but she could not handcuff his left wrist, as plaintiff continued to resist. Id. After nearly two minutes of struggling, Renault and Officer Greiner placed their bodyweight on plaintiff in an attempt to gain control of him, but plaintiff still resisted. Greiner Decl. ¶ 10. Officer Greiner repeatedly told plaintiff to stop resisting or he would be “tased, ” and plaintiff ignored these commands and continued to struggle. Id. ¶ 8.

         As the struggle continued, plaintiff “overpowered” the officers and sat up while Officer Greiner was on top of plaintiff's back. Bomar Decl. ¶ 10; Greiner Decl. ¶ 10. Plaintiff then went to his hands and knees and shifted his weight, and Officer Greiner fell off of plaintiff's back. Id. Officer Greiner lost his grip, and plaintiff stood up to get into his car. Id.

         Sgt. Bomar yelled to Officer Greiner, “Where's your Taser?” just as plaintiff stood up. Bomar Decl. ¶ 10. Officer Greiner drew his taser, shouted “taser” three times, and shot taser probes into plaintiff's back for a five-second cycle. Id.; Greiner Decl. ¶ 12. Plaintiff fell to the ground, and Sgt. Bomar and Renault placed plaintiff in handcuffs. Id.; Bomar Decl. ¶ 11.

         Chief Wright arrived on the scene as plaintiff was lying on his stomach in handcuffs with Taser probes visible on his back. Wright Decl. ¶ 5 (ECF No. 49). Chief Wright contacted dispatch and requested an ambulance be sent for medical assistance, and plaintiff was transported to the Tillamook Regional Medical Center Emergency Room for evaluation. Id.; Greiner Decl. ¶ 13. Plaintiff was ultimately charged with assault of a police officer, assault, resisting arrest, and disorderly conduct. Greiner Decl. ¶ 14.

         On December 14, 2017, plaintiff was indicted on charges of Assaulting a Public Safety Officer, Resisting Arrest, Disorderly Conduct in the Second Degree, Assault in the Fourth Degree Constituting Domestic Violence, Attempted Assault in the Fourth Degree ...


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