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 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.
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).
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). 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.
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.
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.
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).
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.
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.
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.
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.
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.
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 ...