Smithson v. Hammond

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 DANIEL B. SMITHSON, Case No. 3:22-cv-05029-TMC 8 Plaintiff, ORDER GRANTING IN PART AND 9 DENYING IN PART DEFENDANTS’ v. MOTION FOR SUMMARY JUDGMENT 10 DARYL JONATHAN HAMMOND, SARAH 11 LEWIS, AMBER SMITH, RICHARD 12 HENDRICKS, ALEX MCBAIN 13 Defendants. 14 15 ORDER 16 Before the Court is Defendants’ motion for summary judgment. Dkt. 22. Plaintiff Daniel 17 B. Smithson’s (“Smithson’s”) complaint asserts claims under 42 U.S.C. § 1983 for excessive 18 force under the Fourth and Fourteenth Amendments; cruel and unusual punishment under the 19 Eighth and Fourteenth Amendments; arrest and imprisonment without a hearing under the 20 Fourth, Fifth, Eighth, and Fourteenth Amendments; and unconstitutional policy, practice, or 21 custom under the Fourth, Fifth, Eighth, and Fourteenth Amendments. Dkt. 1. He also asserts one 22 claim for failure to provide reasonable accommodations under the Americans with Disabilities 23 Act. Id. Defendants’ motion for summary judgment (Dkt. 22) moves for dismissal of all of 24 1 Smithson’s claims with prejudice. Dkt. 22 at 2. For the following reasons, the motion is granted 2 in part and denied in part. 3 I. BACKGROUND In 2017, Smithson was convicted in Pierce County Superior Court of “second-degree 4 assault and unlawful possession of a controlled substance.” Dkt. 23 ¶ 4. After his release from 5 prison in July 2018, Smithson’s sentence required him to serve eighteen months of community 6 custody with the Washington State Department of Corrections (“DOC”) and report to 7 Community Corrections Officer (“CCO”) Jonathan Hammond, one of the defendants in this case. 8 Dkt. 23-1 at 7. After his release from prison, Smithson agreed to certain conditions of 9 community custody imposed by DOC, including that he would not “threaten or exhibit assaultive 10 behavior toward any Department employee.” Dkt. 23-3 at 2. 11 Smithson’s claims revolve around an altercation and arrest on January 22, 2019, 12 involving Hammond and several other Community Corrections Officers that occurred while 13 Smithson was in the bathroom of a DOC field office to provide a urinalysis sample for drug 14 testing (“UA”). Dkt. 1 at 4; Dkt. 22 at 4. During the incident, Smithson broke bones in his right 15 hand. Dkt. 26 at 4; Dkt. 22 at 5. The parties dispute the events that resulted in his injuries. 16 In a sworn declaration, Smithson alleges that, after he reached towards Hammond to 17 receive a UA cup, Hammond “suddenly seized both [his] shoulders, . . . [and] pushed [Smithson] 18 against the wall next to the toilet.” Dkt. 27 ¶ 14. Then, according to Smithson, Hammond 19 punched him in the face and ordered him to get on the ground and put his hands behind his back. 20 Id. ¶ 15. Smithson asserts he complied with Hammond’s orders. Id. Once Smithson was on the 21 ground, Hammond began trying to handcuff him, at which point Hammond “gripped two fingers 22 on [Smithson’s] right hand with one of his hands and the other two fingers on [Smithson’s] right 23 hand with his other hand, forcibly spreading them until a bone snapped.” Id. Smithson alleges he 24 1 did not “attempt to retaliate nor do anything to provoke” Hammond. Id. Smithson argues in 2 opposing summary judgment that, based on his account, he “posed no threat” during the incident. 3 Dkt. 26 at 10 (citing Dkt. 27 ¶ 12). 4 Defendants’ account differs significantly. Defendant Hammond alleges that, after 5 walking into the bathroom, Smithson “forcibly bumped into [him] with his elbow to [his] 6 midsection and then turned toward [him] in an aggressive manor [sic] as if [Smithson] was 7 getting ready to attack [him].” Dkt. 23-6 at 3. Hammond extended his left arm to move Smithson 8 back and told him to get against the wall. Id. Smithson then “lunged at [Hammond] with his 9 hands grabbing the front of [Hammond’s] vest.” In his “Report of Alleged Violation” regarding 10 the incident, Hammond continues: 11 I pushed Smithson back against the wall in an effort to restrain him and also give directives to get on the ground. As I was trying to restrain Smithson, he was 12 swinging his arms trying to hit me in the face and head. I started to block Smithson’s swings with my forearms. Smithson was in the corner of the bathroom refusing 13 directives to get on the ground. At this point, CCO Mowatt and CCO Lewis (who were standing by) heard the commotion and came into the bathroom. Smithson was 14 standing in the corner as CCO Mowatt grabbed him by his left arm and at the same time giving verbal directives to get on the ground. I grabbed him by his right arm 15 and assisted CCO Mowatt in placing Mr. Smithson on the ground. Smithson continued to resist by tensing his arms while CCO Mowatt and I applied wrist 16 restraints. CCO Lewis applied restraints to his right wrist as CCO Mowatt and I had to maintain control of his arms due to his continued resistance. 17 Id. Following Smithson’s arrest, he “was charged with violations of his community custody 18 conditions” for his “assaultive behavior” during the incident. Dkt. 22 at 5 (citing Dkt. 23-6). 19 DOC, which has authority to adjudicate violations of “condition[s] or requirement[s] of 20 community custody,” RCW 9.94A.737(4), held an administrative hearing regarding the charge 21 on January 31, 2019. Dkt. 23-7. The DOC hearing officer issued a written decision, submitted 22 into evidence by Defendants, which found Smithson guilty of “assaultive behavior” and 23 sanctioned him to thirty days in prison. Id. at 3. A section of the decision entitled “Summary of 24 1 Facts Presented/Reasons for Findings” appears to describe part of the incident that was the 2 subject of the sanction: “1-24-19 – escort UA bathroom. Bumped in to [sic] him restroom – 3 grabbed CCO. Needed assistance, CCO Hammond . . . .” Id.1 The decision form indicates the 4 hearing officer relied on the following evidence in making his decision: Smithson’s state court 5 judgment and sentence, his “Notice of Allegation, Hearing, Rights and Waiver form,”2 6 Defendant Hammond’s written report of the incident, and a form setting out the conditions of 7 Smithson’s community custody sentence. Id. at 2. 8 II. DISCUSSION 9 A. Collateral Estoppel Generally, “in ruling on a motion for summary judgment, ‘[t]he evidence of the 10 nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v. 11 Cotton, 572 U.S. 650, 651 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 12 U.S. 242, 255 (1986)). Defendant argues that the Court must give preclusive effect to the DOC 13 hearing officer’s decision and treat certain facts he allegedly found to be true as established in 14 this case. Specifically, in regard to Smithson’s excessive force claims, Defendants argue that 15 Smithson is estopped from asserting facts inconsistent with the hearing officer’s determination 16 that he “engaged in assaultive behavior towards CCO Hammond” (Dkt. 22 at 9) and that 17 Smithson engaged in this behavior “during the incident in which his hand was broken,” Id. at 10. 18 They also argue that Smithson is estopped from alleging there was no probable cause for his 19 20 1 The hearing officer’s decision is handwritten, and some parts of his writing are difficult to 21 understand. 22 2 The DOC must notify community custody “offenders” of an “alleged violation and the evidence supporting it” prior to a hearing on community custody violations. 23 RCW 9.94A.737(6)(a). The notice must also include “a statement of the rights specified in this subsection, and the offender’s right to file a personal restraint petition under court rules after the 24 final decision.” Id. See RCW 9.94A.737(6)(a). 1 arrest during the UA incident because his “conviction” for assaultive behavior establishes that 2 Defendants had “reasonable suspicion” to arrest him under Washington law. Id. at 19. Smithson 3 responds that Defendants have not met the standard for showing that collateral estoppel should 4 apply. Dkt. 26 at 8. 5 1. Collateral Estoppel Standard 6 “Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually 7 litigated and resolved in a valid court determination essential to the prior judgment,’ even if the 8 issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) 9 (quoting New Hampshire v. Maine, 532 U.S. 742, 748–49 (2001)). “The doctrine of collateral 10 estoppel, or issue preclusion, is grounded on the premise that once an issue has been resolved in 11 a prior proceeding, there is no further fact-finding function to be performed.” Wabakken v. Cal. 12 Dep’t of Corr. & Rehab., 801 F.3d 1143, 1148 (9th Cir. 2015) (internal quotations omitted). 13 Federal courts give preclusive effect to state agency fact finding when the agency acted in 14 a “judicial capacity” and the parties had an “adequate opportunity to litigate” the issues decided. 15 Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (internal quotations omitted). Moreover, 16 “federal courts must give the agency’s factfinding the same preclusive effect to which it would 17 be entitled in the State’s courts.” Id. Accordingly, the Court will apply Washington law in 18 analyzing the collateral estoppel issues in this case. See Davis v. Clark Cnty., Wash., 966 19 F.Supp.2d 1106, 1124 (W.D. Wash. 2013). 20 “The burden of proof as to the propriety of applying the doctrine of collateral estoppel is 21 on the party seeking its application,” and Washington courts “view all facts and inferences in the 22 light most favorable to the opposing party” in making this determination. Reninger v. Dep’t of 23 Corr., 901 P.2d 325, 332 (Wash. Ct. App. 1995), aff’d on other grounds, 951 P.2d 782 (Wash. 24 1998). “[C]ollateral estoppel extends only to ‘ultimate facts’, i.e., those facts directly at issue in 1 the first controversy upon which the claim rests, and not to ‘evidentiary facts’ which are merely 2 collateral to the original claim.” McDaniels v. Carlson, 738 P.2d 254, 258 (Wash. 1987). 3 Washington courts consider seven factors in determining whether to give preclusive 4 effect to agency fact finding, four of which apply to every case and three of which only apply 5 when the movant seeks collateral estoppel effect for agency findings. Christensen v. Grant Cnty. 6 Hosp. Dist. No. 1, 96 P.3d 957, 961–62 (Wash. 2004) (en banc). Under the traditional four-factor 7 test, the party seeking application of the doctrine must show that: 8 (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, 9 (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel 10 does not work an injustice on the party against whom it is applied. 11 Id. at 961. The party seeking the application of issue preclusion must prove each factor of the 12 traditional test; “therefore, if any one element fails the doctrine does not apply.” George v. 13 Farmers Ins. Co. of Wash., 23 P.3d 552, 559 (Wash. Ct. App. 2001) (citing Southcenter Joint 14 Venture v. Nat’l Dem. Party Comm., 780 P.2d 1282, 1284–85 (Wash. 1989) (en banc)). For 15 agency findings, Washington courts also consider: “(1) whether the agency acted within its 16 competence, (2) the differences between procedures in the administrative proceeding and court 17 procedures, and (3) public policy considerations.” Christensen, 96 P.3d at 961–62 (citations 18 omitted). 19 At least one Washington court has treated DOC disciplinary hearings as “administrative” 20 proceedings and applied the agency-specific factors in ruling on issue preclusion. See Matter of 21 Wilson, 484 P.3d 1, 8–9 (Wash. Ct. App. 2021); see also Mock v. State, 403 P.3d 102, 104 22 (Wash. Ct. App. 2017) (“Under applicable statutes, sanctions for community custody violations 23 are imposed by the department in an administrative process, not by the court.” (emphasis 24 added)); RCW 9.94A.737(4), (6) (statute setting out rules regarding DOC hearings for 1 community custody violations). Wilson’s holding on collateral estoppel, however, is not 2 applicable to this case. There, the Washington Court of Appeals considered the collateral 3 estoppel effect of a DOC disciplinary hearing in a subsequent DOC hearing of the same kind. 4 See 484 P.3d at 8. Relevant here, the court held that the injustice prong of the collateral estoppel 5 test was met because “[i]njustice is a nonissue when the first and second forum, and the relief 6 available, were the same.” Id. The Court has not discovered any Washington case giving 7 preclusive effect to a DOC administrative hearing in a later civil action. 8 Defendants argue that all seven factors of the collateral estoppel test are met. Dkt. 22 at 9 9–11. Plaintiff disputes that the first, second, and fourth factors of the traditional test are met but 10 does not address the third traditional factor or the three agency-specific factors. See Dkt. 26 at 8– 11 9. Because the Court finds that the “identical issues” and “injustice” factors are dispositive of 12 this case, it will limit its analysis to those issues. 13 a. Identical Issues 14 Under Washington law, the first factor is not met if “there is ambiguity or indefiniteness 15 in a verdict or judgment” for which the moving party seeks collateral estoppel effect. Mead v. 16 Park Place Props., 681 P.2d 256, 259 (Wash. Ct. App. 1984), review denied, 102 Wash.2d 1010 17 (1984). “If there is uncertainty whether a matter was previously litigated, collateral estoppel is 18 inappropriate.” Id.; see also Crowley Marine Servs., Inc. v. Hunt, No. C 93–1334C, 1995 WL 19 694094, at *4 (W.D. Wash. July 21, 1995) (applying Washington law and declining to grant 20 collateral estoppel effect to a state court judgment where the court’s written decision was a “form 21 order” signed by the judge that was “devoid of factual findings, analysis, and conclusions of 22 law”). 23 As to Smithson’s excessive force claims, Defendants seek collateral estoppel for the 24 DOC hearing officer’s findings that Plaintiff “engaged in assaultive behavior towards CCO 1 Hammond,” Dkt. 22 at 9, and that Plaintiff engaged in this behavior “during the incident in 2 which his hand was broken.” Id. at 10. The DOC hearing officer’s decision is too vague to show 3 that the issues he decided are identical to the issues relevant here. First, while the hearing officer 4 found Smithson guilty of “assaultive behavior,” there is no definition of that term in the decision, 5 the statute concerning community custody violations, or anywhere in the record. See Dkt. 23-7; 6 RCW 9.94A.737. Defendants’ counsel conceded at oral argument that the term “assaultive 7 behavior” appears to have no clear legal definition; rather, the term is taken from the community 8 custody conditions form stipulated to by Smithson when he began supervision, which prohibited 9 him from “threaten[ing] or exhibit[ing] assaultive behavior toward any Department employee.” 10 Dkt. 23-3 at 2 (emphasis added). 11 Furthermore, it is unclear whether the hearing officer’s handwritten notes in the section 12 of his decision titled “Summary of Facts Presented/Reasons for Findings” are factual findings. 13 Dkt. 23-7 at 3. The section’s title and contents suggest it may simply be a memorialization of the 14 facts presented by the parties, as opposed to facts the hearing officer found to be true. Moreover, 15 even if they were findings of fact, they do not clearly identify what role each party played in the 16 altercation. See id. (“Bumped in to [sic] him restroom – grabbed CCO. Needed assistance, CCO 17 Hammond . . . .”).3 This ambiguity makes it impossible to determine what actual facts Smithson 18 would be estopped from litigating now. Accordingly, the Court finds that the DOC hearing 19 officer’s decision has no collateral estoppel effect on Smithson’s excessive force claim because it 20 3 Plaintiff argues that collateral estoppel is also inappropriate because the hearing officer 21 decision states that the date of the UA incident was January 24, 2019, as opposed to January 22, 2019, the date on which the parties agree the incident took place. Dkt. 26 at 8–9; see Dkt. 22 at 7; 22 Dkt. 26 at 3. Defendants respond that this was a clerical error, which itself was based on an error that Hammond made in his report of the incident. Dkt. 33 at 2 (citing Dkt. 23 ¶ 14). Plaintiff also 23 contends that the notice he received for the hearing only informed him that it was for “a failure to complete a UA.” See Dkt. 26 at 6. While the Court acknowledges both arguments, it need not 24 reach these issues in ruling on collateral estoppel. 1 is at best uncertain that the issues decided in the DOC hearing are identical to any element of the 2 excessive force claim. 3 There does, however, appear to be identity of issues as to Smithson’s wrongful arrest 4 claim, because a conviction “is conclusive evidence of probable cause” under Washington law 5 and the hearing officer found Plaintiff guilty of “assaultive behavior.” Hanson v. City of 6 Snohomish, 852 P.2d 295, 299 (Wash. 1993) (en banc). But the Court also finds that the 7 differences in procedures between the DOC hearing and the instant lawsuit are too great for the 8 decision to be given preclusive effect as a general matter. 9 The “injustice” factor of the traditional collateral estoppel test “is generally concerned 10 with procedural, not substantive irregularity.” Christensen, 96 P.3d at 962. “This is consistent 11 with the requirement that the party against whom the doctrine is asserted must have had a full 12 and fair opportunity to litigate the issue in the first forum.” Id. The Washington Supreme Court 13 has recognized several considerations relevant to this inquiry. Relevant here, it has held the 14 injustice factor is met if the party against whom estoppel is asserted had “sufficient motivation 15 for a full and vigorous litigation of the issue in a prior proceeding,” Weaver v. City of Everett, 16 450 P.3d 177, 182 (Wash. 2019), and where the procedures in the prior proceeding are adequate 17 compared to those in the later case. See Reninger v. State Dep’t of Corr., 951 P.2d 782, 789 18 (Wash. 1998) (granting preclusive effect to administrative decision, in part, because “[v]ery little 19 of significance distinguished the administrative proceedings in this case from a formal jury trial 20 in superior court”); cf. Christensen, 96 P.3d at 962 (“[A]pplying collateral estoppel may be 21 improper where the issue is first determined after an informal, expedited hearing with relaxed 22 evidentiary standards.” (citing Vasquez, 59 P.3d at 653)). For the following reasons, the Court 23 finds that collateral estoppel is not warranted because Smithson did not have an adequate 24 1 incentive to litigate his community custody charge and his DOC hearing was too swift and 2 informal. 3 First, Defendants argue that “Plaintiff had every incentive to litigate the issue in his favor 4 in the earlier proceeding, because the adverse outcome resulted in his having to serve 30 days in 5 jail rather than in the community.” Dkt. 22 at 10. They compare Smithson’s DOC hearing to a 6 criminal trial and his sanction to a criminal conviction. See id. The Court disagrees with both 7 arguments. DOC charged Smithson with a “high level violation” of his community custody 8 conditions (Dkt. 23-6 at 2) which carries a maximum sentence of thirty days “confinement.” 9 RCW 9.94A.737(4). In comparison, the lowest statutory maximum for assault on a law 10 enforcement officer in Washington—Assault in the Third Degree, RCW 9A.36.031, a class C 11 felony—is five years. RCW 9A.20.021(1)(c). Given this discrepancy, the Court disagrees that 12 Smithson’s incentive to litigate was the same as in a comparable criminal case. Rather, the Court 13 concludes that the low maximum penalty for the community custody charge was insufficient to 14 give Smithson an adequate incentive to fully litigate it. This consideration weighs against 15 granting Defendants’ request for collateral estoppel. 16 Second, the Court concludes that the DOC hearing was the type of “informal, expedited 17 hearing with relaxed evidentiary standards” that is not entitled to collateral estoppel effect under 18 Washington law. Christensen, 96 P.3d at 962 (citing Vasquez, 59 P.3d at 653). The Vasquez 19 court’s reasoning on this issue is instructive: 20 We do not have a complete record of the administrative hearing, the only evidence of the hearing being the order of dismissal. However, it is apparent that the hearing 21 was conducted with little formality. The order states that the hearing was conducted telephonically between Vasquez, his attorney, and the hearing officer. The State 22 submitted two exhibits: (1) a copy of the report of breath/blood test for alcohol; and (2) the officer's report and accompanying documents. No witnesses, not even 23 Sergeant Jones, appeared to testify. The hearing officer made his decision based solely on the two exhibits that were submitted by the State. . . . [T]here was neither 24 testimony nor opportunity for direct cross-examination in the administrative 1 hearing. The hearing officer adjudicated the issue of probable cause on limited evidence. In Vasquez’s criminal prosecution, the issue of probable cause was 2 litigated exhaustively. 3 Vasquez, 59 P.3d at 654 (citations omitted). Vasquez also noted that the administrative 4 proceeding at issue was distinguishable from another where the court had granted preclusive 5 effect when the earlier proceeding was governed by the Administrative Procedure Act (“APA”) 6 and defendant was represented by counsel, called witnesses, and obtained discovery prior to the 7 hearing. Id. at 652 n.9 (citing Reninger v. Dep’t of Corr., 951 P.2d 782 (1998)). Here, much like 8 in Vasquez, the DOC hearing was not governed by the APA, see RCW 9.94A.737(1), the hearing 9 officer relied only on four documents, Dkt. 23-7 at 2, and his decision indicates there was no 10 testimony from witnesses. See id. (boxes for “CCO testimony” and “Offender testimony” under 11 “Evidence Relied Upon” are not checked off). Moreover, unlike a criminal case, Smithson did 12 not have the right to an attorney, WAC 137-104-060, or a jury, and the hearing officer was 13 allowed to consider hearsay, WAC 137-104-050(g). Notice of a pending hearing for a 14 community custody violation may be delivered to the “offender” no less than 24 hours before the 15 hearing takes place and the hearing itself occurs between one and fifteen days after receipt of the 16 notice. RCW 9.94A.737(6)(b). Thus, Smithson’s DOC proceeding was the type of “informal, 17 expedited hearing with relaxed evidentiary standards” that should not be given preclusive effect 18 in subsequent litigation. Christensen, 96 P.3d at 962 (citing Vasquez, 59 P.3d at 653). 19 Accordingly, the Court declines to grant collateral estoppel effect to the DOC hearing 20 officer’s decision. Because a movant’s failure to prove each factor of the traditional collateral 21 estoppel test is dispositive, the Court will not address the three agency-specific factors. George, 22 23 P.3d at 559. 23 24 1 B. Summary Judgment 1. Summary Judgment Standard 2 “The court shall grant summary judgment if the movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving 5 party fails to make a sufficient showing on an essential element of a claim in the case on which 6 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). 7 A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could 8 return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 9 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 10 The evidence relied upon by the nonmoving party must be able to be “presented in a form 11 that would be admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). “An affidavit or declaration 12 used to support or oppose a motion must be made on personal knowledge, set out facts that 13 would be admissible in evidence, and show that the affiant or declarant is competent to testify on 14 the matters stated.” Fed. R. Civ. P. 56(c)(4); see also Fed. R. Ev. 602 (“A witness may testify to 15 a matter only if evidence is introduced sufficient to support a finding that the witness has 16 personal knowledge of the matter. Evidence to prove personal knowledge may consist of the 17 witness’s own testimony.”). Conclusory, nonspecific statements in affidavits are not sufficient, 18 and “missing facts” will not be “presume[d].” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 19 (1990). However, as stated, “‘[t]he evidence of the nonmovant is to be believed, and all 20 justifiable inferences are to be drawn in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 21 (2014) (per curiam) (quoting Anderson, 477 U.S. at 255). Consequently, “a District Court must 22 resolve any factual issues of controversy in favor of the non-moving party only in the sense that, 23 24 1 where the facts specifically averred by that party contradict facts specifically averred by the 2 movant, the motion must be denied.” Lujan, 497 U.S. at 888 (internal quotations omitted). 3 2. Excessive Force Claims 4 Smithson’s complaint alleges two claims for excessive force under Section 1983. The 5 first alleges excessive force in violation of the Fourth Amendment against Defendant Hammond 6 in his individual capacity for allegedly causing Smithson’s injury during the UA incident. Dkt. 1 7 at 10–12. The second alleges excessive force in violation of the Eighth and Fourteenth 8 Amendments against Defendants Hammond and Amber Smith in their individual capacities for 9 their conduct during the UA incident. Id. at 12–14. The Court considers each claim in turn. 10 a. Constitutional Framework 11 “In addressing an excessive force claim brought under § 1983, analysis begins by 12 identifying the specific constitutional right allegedly infringed by the challenged application of 13 force. . . . The validity of the claim must then be judged by reference to the specific 14 constitutional standard which governs that right . . . .” Graham v. Connor, 490 U.S. 386, 394 15 (1989). Determination of the correct constitutional standard depends on the plaintiff’s custodial 16 status when the alleged excessive force occurred: 17 The Fourth Amendment’s objective reasonableness standard governs a free citizen’s claim that law enforcement officials used excessive force, in any search 18 or seizure, while the Fourteenth Amendment’s objective reasonableness standard protects pretrial detainees. After conviction, the Eighth Amendment, which is 19 specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted 20 prisoners. 21 Hughes v. Rodriguez, 31 F.4th 1211, 1220 (9th Cir. 2022) (internal citations and quotation marks 22 omitted). 23 Washington regulations define community custody as “that portion of an offender’s 24 sentence of confinement in lieu of earned release time or imposed as part of a sentence under this 1 chapter and served in the community subject to controls placed on the offender’s movement and 2 activities by [DOC].” RCW 9.94A.030. An individual on community custody “is the functional 3 equivalent of a parolee.” Nash v. Robinson, 2010 WL 4852199, at *8 (W.D. Wash. Nov. 1, 4 2010), report and recommendation adopted, 2010 WL 4918957 (Nov. 26, 2010), aff’d, 471 F. 5 App’x 643 (9th Cir. 2012). This case raises the question of which constitutional standard applies 6 to a person in community custody alleging excessive force during an arrest for a violation of 7 their conditions of supervision. While neither the Ninth Circuit nor the U.S. Supreme Court has 8 addressed this question directly, the weight of authority favors application of the Fourth 9 Amendment. 10 In Ellis v. City of San Diego, the Ninth Circuit applied the Fourth Amendment to an 11 excessive force claim where the plaintiff was on parole at the time of the alleged excessive force. 12 176 F.3d 1183, 1191–92 (9th Cir. 1999),as amended on denial of reh’g (June 23, 1999). The 13 court rejected a defendant’s argument that the plaintiff’s status as a parolee at the time of the 14 incident meant that his claim should be governed by the Eighth Amendment: “Ellis’s suit 15 challenges not the conditions of confinement but the conditions of arrest. Van Hoesen cites no 16 authority for her contention that parolees complaining of excessive force or warrantless arrests 17 are actually complaining of the conditions of their ‘confinement’ on parole, and, understandably, 18 there is none.” Id. at 1189 n.4. Thus, while the plaintiff in Ellis was not arrested for a parole 19 violation, the decision does clarify that an individual out on parole is generally not in 20 “confinement” for Eighth Amendment purposes and that the Fourth Amendment generally 21 applies to excessive force claims involving arrests of parolees. This distinction is consistent with 22 the Washington Supreme Court’s characterization of individuals serving the community custody 23 portions of their sentence. In re Blackburn, 232 P.3d 1091, 1093 (Wash. 2010) (“A person in 24 community custody ‘can be gainfully employed and is free to be with family and friends and to 1 form the other enduring attachments of normal life.’” (quoting Morrissey v. Brewer, 408 U.S. 2 471, 482 (1972)). 3 Consistent with Ellis, other Ninth Circuit decisions have applied the Eighth Amendment 4 when the plaintiff was a prisoner at the time of the alleged excessive force. See Hughes, 31 F.4th 5 at 1220 (“After conviction, ‘the Eighth Amendment, which is specifically concerned with the 6 unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of 7 substantive protection to convicted prisoners.’” (emphasis added) (quoting Whitley v. Albers, 8 475 U.S. 312, 327 (1986)). Defendants point to a seemingly broader statement in Hughes that 9 “the Eighth Amendment applies equally to convicted prisoners inside or outside the walls of the 10 penal institution.” 31 F.4th at 1221. However, Hughes only considered what constitutional 11 standard applies to an escaped prisoner. See id. at 1220 (“But these questions, in turn, put first 12 the question of which constitutional right, protects escaped prisoners from excessive force.”). 13 Unlike Ellis, Hughes did not address the standard that should apply when the plaintiff is a 14 parolee. Accordingly, the guidance in Ellis regarding the distinction between parolees and 15 prisoners is more applicable here. 16 Moreover, other district courts have determined that the Fourth Amendment, and not the 17 Eighth, applies to a parolee’s claim that they were subjected to excessive force during an arrest 18 for a parole violation. The U.S. District Court for the Southern District of New York in Cox v. 19 Fischer reasoned: 20 [W]hen officers use force against a parolee they suspect of violating the conditions of his parole, they are effecting a “seizure” of the parolee for committing a new 21 offense, not a “punishment” for committing the crime for which he was convicted. Indeed, the Division of Parole records submitted in this case state that Cox was 22 attempting “to avoid his lawful arrest” for parole violations at the time of the incident. And when the parolee is seized, his right to be free from excessive force 23 derives from the same source as that of other members of the public—the Fourth Amendment. 24 1 248 F. Supp. 3d 471, 479 (2017) (citations omitted) (quoting U.S. Const. amends IV, VIII). 2 For these reasons, the District Court decisions cited by Defendants in support of their 3 contention that the Eighth Amendment applies generally to parolees are inapposite. All deal with 4 alleged excessive force that occurred while the plaintiffs were already in confinement after being 5 arrested for other parole violations, whereas the excessive force alleged by Smithson happened 6 outside of prison while he was being arrested. See Weitzel v. Cnty. of L.A., No. CV 15-9328 PSG, 7 2018 WL 5907442, at *1, *4 (C.D. Ca. Mar. 14, 2018) (applying the Eighth Amendment to a 8 plaintiff who was detained for a parole violation when the alleged excessive force occurred); 9 Leialoha v. MacDonald, No. 07–00218 ACK–KSC, 2008 WL 2736020, at *2 (D. Haw. July 11, 10 2008) (alleged excessive force occurred while plaintiff was being transported to prison after 11 being arrested for and arraigned on parole violations); Hamilton v. Lyons, 74 F.3d 99, 106 n.8 12 (5th Cir. 1996) (holding that detained parolees may bring constitutional challenges to their 13 conditions of confinement under the Eighth Amendment). 14 Accordingly, because Smithson was out on community custody when he was arrested for 15 violations of his community custody sentence (Dkt. 23-6 at 3; Dkt. 23-3 at 2), his excessive force 16 claims are governed by the Fourth Amendment. 17 b. Fourth Amendment Claim 18 Hammond argues that he is entitled to qualified immunity for Plaintiff’s Fourth 19 Amendment excessive force claim. The defense of qualified immunity protects “government 20 officials . . . from liability for civil damages insofar as their conduct does not violate clearly 21 established statutory or constitutional rights of which a reasonable person would have known.” 22 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts follow a “two-step sequence” to analyze 23 qualified immunity defenses: 24 1 First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied 2 this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. 3 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citations omitted). Which step to 4 analyze first is an exercise of discretion “in light of the circumstances in the particular case at 5 hand.” Id. at 236. 6 Here, the Court first addresses whether Smithson’s facts make out a violation of the 7 Fourth Amendment. Excessive force claims alleging violations of the Fourth Amendment are 8 analyzed under the “objective reasonableness” standard. Graham, 490 U.S. at 388. In making 9 this inquiry, courts first consider the “nature and quality of the alleged intrusion.” Mattos v. 10 Agarano, 661 F.3d 433, 441 (9th Cir. 2011). Next, courts apply the Graham factors “by looking 11 at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the 12 safety of the officers or others, and (3) whether the suspect was actively resisting arrest or 13 attempting to evade arrest by flight.” Id. The second factor is the most important of the three. Id. 14 (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). As described 15 previously, Smithson states in his declaration that he did not commit any crime prior to the 16 arrest, complied with Hammond’s instructions, did not “provoke” him, and did not “retaliate” 17 against the officers. Dkt. 27 ¶¶ 14–15. Defendants do not make any argument that Smithson fails 18 to make out a violation of a constitutional right under his version of events. 19 First, punching is as an “intermediate level[] of force that significantly intrude[s] on 20 Fourth Amendment rights.” Steinmeier v. Cnty. of San Diego, No. 18cv1603 JM, 2020 WL 21 377052, at *6 (S.D. Cal. Jan. 23, 2020) (citing Young v. Cnty. of L.A., 655 F.3d 1156, 1161–62 22 (9th Cir. 2011)). Given the absence of any reason for the arrest, Smithson’s lack of retaliation, 23 and his compliance with instructions, a reasonable juror could find that Smithson has established 24 1 each of the Graham factors. Accordingly, a reasonable juror could find that Hammond violated 2 Smithson’s Fourth Amendment rights under Smithson’s version of events. 3 Next, the Court turns to whether Smithson’s right to be free from excessive force was 4 clearly established. While “[t]he right to be free from excessive force [under the Fourth 5 Amendment] is a clearly established right,” Saucier v. Katz, 533 U.S. 194, 202 (2001), the 6 inquiry is case-specific, requiring the Court to determine “whether it would be clear to a 7 reasonable officer that his conduct was unlawful in the situation he confronted.” Id. The inquiry 8 is also time-specific, requiring the Court to ask whether the right was clearly established when 9 the incident occurred. See Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). It is the 10 plaintiff’s burden to show that the right was clearly established. Id. at 969. 11 The Court begins by looking to binding precedent. Boyd v. Benton County, 374 F.3d 773, 12 781 (9th Cir. 2004). While courts do “not require a case directly on point, . . . existing precedent 13 must have placed the statutory or constitutional question beyond debate.” Mattos, 661 F.3d at 14 442 (quotations omitted). Generally, the Court “must ‘identify a case where an officer acting 15 under similar circumstances as [the defendant] was held to have violated the Fourth 16 Amendment.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) (quoting 17 White v. Pauly, 580 U.S. 73, 79 (2017)). 18 Smithson cites Palmer v. Sanderson, 9 F.3d 1433, 1434–36 (9th Cir. 1993) and Hansen v. 19 Black, 885 F.2d 642, 645 (9th Cir.1989) as cases that established the unreasonableness of 20 Hammond’s conduct during the UA incident. Dkt. 26 at 10 n.1. In Palmer, the Ninth Circuit 21 concluded that the defendant police officers were not entitled to qualified immunity for fastening 22 “handcuffs so tightly around [the plaintiff’s] wrist that they caused Palmer pain and left bruises 23 that lasted for several weeks.” 9 F.3d at 1436. The officer who placed the handcuffs on the 24 plaintiff “presented no evidence that would justify handcuffing Palmer so tightly that he suffered 1 pain and bruises, or to justify his refusal to loosen the handcuffs after Palmer complained of the 2 pain.” Id. In Hansen, the Ninth Circuit overturned the district court’s decision granting summary 3 judgment on an excessive force claim under the Fourth Amendment where the evidence showed 4 that the defendant police officer was “rough and abusive to [the plaintiff’s] person” while 5 handcuffing her and that the plaintiff sustained bruising to her wrist and upper arm because of 6 the arrest. 885 F.2d at 645. Moreover, in Blankenhorn v. City of Orange, the Ninth Circuit found 7 that summary judgment was not appropriate on a Fourth Amendment excessive force claim 8 where the plaintiff’s evidence suggested that officers needlessly punched him during the arrest. 9 485 F.3d 463, 480 (9th Cir. 2007). 10 Here, Smithson alleges that Hammond violated his Fourth Amendment rights by 11 punching him in the face and breaking bones in his hand and wrist while handcuffing him. Dkt. 1 12 ¶ 24. In his declaration, Smithson asserts that, after reaching towards Hammond for a UA cup, 13 Hammond “seized” his shoulders, turned him around, and pushed him up against the wall. 14 Dkt. 27 ¶ 14. Then, Smithson alleges that Hammond punched him in the face before ordering 15 him to get on the ground and put his hands behind his back. Id. ¶ 15. Smithson alleges that he 16 complied without “retaliating” or “provoking” Hammond. Id. Then, while Hammond was 17 handcuffing Smithson, “he gripped two fingers on [Smithson’s] right hand with one of his hands 18 and the other two fingers on [Smithson’s] right hand with his other hand, forcibly spreading them 19 until a bone snapped.” Id. 20 Defendants argue that the constitutional framework to be applied to the excessive force 21 claim in the first instance is not clearly established. Dkt. 22 at 12–15. However, the Court has 22 already concluded that the Fourth Amendment applies to this claim under binding and persuasive 23 24 1 precedent.4 Defendants do argue in the alternative that the unconstitutionality of Hammond’s 2 conduct was not clearly established under the Fourth Amendment, but only assuming the Court 3 would grant collateral estoppel effect to the DOC hearing officer’s purported determination that 4 Smithson attacked Hammond and resisted his arrest. Dkt. 22 at 16. Defendants do not make any 5 argument in the alternative as to the “clearly established” issue based on Smithson’s contrary 6 version of the facts, which the Court must assume to be true since it is not granting collateral 7 estoppel effect to the DOC hearing officer decision. See Tolan, 572 U.S. at 651; Blankenhorn, 8 485 F.3d at 477 (“Where [factual] disputes exist, summary judgment is appropriate only if 9 Defendants are entitled to qualified immunity on the facts as alleged by the non-moving party.”) 10 The Court finds that Palmer, Hansen, and Blankenhorn are sufficiently similar to the 11 facts of this case to clearly establish Smithson’s right to be free from Hammond’s excessive 12 force. Under Smithson’s version of events, Hammond punched him in the face and used 13 unreasonable force to injure his hand while handcuffing him, all with no apparent justification. 14 The above-cited cases show that the law was “clearly established” at the time of the UA incident 15 and gave Hammond “sufficiently fair notice that his conduct could have been unconstitutional.” 16 Id. at 481. Accordingly, Smithson has met each prong of the qualified immunity inquiry, and the 17 Court will not grant summary judgment for his Fourth Amendment excessive force claim. 18 c. Fourteenth and Eighth Amendment Claim 19 Smithson also brings an excessive force claim against Defendants Hammond and Smith 20 that alleges violations of the Eighth and Fourteenth Amendments. Dkt. 1 at 12. However, 21 summary judgment must be granted for excessive force claims alleging violations of the wrong 22 4 While the Court has doubts as to whether the determination of which constitutional standard 23 applies to the excessive force claim is subject to the “clearly established” inquiry, it need not decide this issue since the Fourth Amendment’s application to Plaintiff’s claim is clearly 24 established. 1 constitutional standards. See Glair v. City of Santa Monica, 649 F. App’x 411, 412 (9th Cir. 2 2016) (upholding district court’s grant of summary judgment for excessive force claim brought 3 under the wrong constitutional framework). Accordingly, the Court will grant summary 4 judgment to Defendants for Smithson’s second excessive force claim. 5 3. Wrongful Arrest 6 Defendants also move for summary judgment on Smithson’s claim for wrongful arrest 7 under the Fourth, Fifth, Eighth, and Fourteenth Amendments. Dkt. 1 at 14. As a preliminary 8 matter, the Court notes that the claim is only cognizable under the Fourth Amendment’s 9 “reasonableness” standard. Brew v. City of Emeryville, 138 F. Supp. 2d 1217, 1223 (N.D. Cal. 10 2001) (citing Larson v. Neimi, 9 F.3d 1397, 1400 (9th Cir.1993)). 11 Each side makes concessions in their briefing that dispose of this claim. First, Defendants 12 do not make any argument that summary judgment is appropriate as to Defendant Hammond if 13 the Court does not grant collateral estoppel effect to the DOC hearing officer’s decision. See Dkt. 14 22 at 19–20. Accordingly, the Court will not grant summary judgment on this claim as to 15 Hammond. 16 In addition, Smithson does not meaningfully respond to Defendants’ argument that 17 summary judgment is appropriate as to Defendants Lewis, Smith, or Hendricks on this claim. See 18 Dkt. 26 at 20–21. According to Smithson’s version of events, Defendant Lewis entered the room 19 where he was arrested after Hammond had already handcuffed him. Dkt. 27 ¶ 16.5 There is no 20 5 Smithson also states that “a woman with black hair . . . finished handcuffing” him but does not 21 specifically identify her. Dkt. 27 ¶ 15. Hammond’s incident report, which he incorporates into his declaration, see Dkt. 23 ¶ 14, states that Lewis applied wrist restraints to Plaintiff’s right 22 wrist. Dkt. 23-6 at 3. However, Smithson’s declaration suggests that Lewis was not the person who helped handcuff him. Dkt. 27 ¶ 16 (“I started screaming, so loud that a bunch of people 23 rushed in, including a woman with black hair who finished handcuffing me. There were about 4- 6 officers that came in after I screamed. Eventually, I saw Sarah Lewis again and she told me 24 they were taking me to the emergency room at St. Joseph’s hospital.”). 1 evidence in the record that Defendants Smith or Hendricks had any involvement in the arrest. 2 Defendants argue that Lewis and Smith only would have known about the arrest from 3 Hammond, and that they were allowed to reasonably rely on his representations regarding 4 probable cause under Harper v. City of L.A., 533 F.3d 1010, 1022 (9th Cir. 2008). Dkt. 22 at 19. 5 Smithson’s only argument as to Lewis, Smith, and Hendricks’ involvement is his general 6 statement, without citation to the record, that they participated in the wrongful arrest. Dkt. 26 at 7 20. “Where a nonmoving party fails to specifically identify and cite evidence raising a genuine 8 issue of triable fact in its response to the motion, the Court may properly enter summary 9 judgment against it.” Spirit Master Funding VIII, LLC v. Kelly Rest. Grp., LLC, No. CV-18- 10 01012-PHX-JJT, 2020 WL 805964, at *9 (D. Ariz. Feb. 18, 2020) (citing Carmen v. S.F. Unified 11 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001)). Plaintiff has not pointed to any facts in the 12 record establishing Defendants’ Lewis, Smith, or Hendricks’ liability for wrongful arrest. 13 Accordingly, the Court will grant summary judgment for Defendants Lewis, Smith, and 14 Hendricks on this claim. 15 4. Unconstitutional Policy, Practice, or Custom 16 Defendants argue that summary judgment is proper for Smithson’s claim of 17 unconstitutional policy, practice, or custom, which was originally alleged against Defendant 18 Alex McBain and John Does 1–5 in Plaintiff’s complaint. Dkt. 1 at 16. 19 The Court begins by acknowledging that this claim appears to be a Monell claim, which 20 is a lawsuit “for constitutional torts committed by” municipal or other local government 21 “officials according to an official policy, practice, or custom.” Emery v. Pierce County, 2010 22 U.S. Dist. LEXIS 33212, at *17 (W.D. Wash. Apr. 15, 2010) (citing Monell v. N.Y. City Dep’t of 23 Soc. Servs., 436 U.S. 658, 690–91 (1978)). However, Monell claims are only cognizable against 24 1 municipalities or local governments, not state entities or officials. See id. Summary judgment is 2 appropriate for this reason. 3 Moreover, Smithson’s response alleges, for the first time, that he is bringing this claim 4 against Defendants Hendricks and Smith. Dkt. 26 at 22. His complaint names only McBain and 5 “John Does 1–5 Washington State Department of Corrections Supervisory Policy Makers” as 6 Defendants to this claim. Dkt. 1 at 16. A plaintiff “cannot raise new allegations in a response to a 7 motion for summary judgment.” Davis v. Wash. State Dep’t of Corr., 2017 U.S. Dist. LEXIS 8 180456, at *7 n.5 (W.D. Wash. July 25, 2017) (citing Pickern v. Pier 1 Imps. (U.S.), Inc., 457 9 F.3d 963, 965 (9th Cir. 2006)). Accordingly, summary judgment is appropriate for Defendants 10 Hendricks and Smith. 11 Furthermore, Smithson brings this claim against McBain in his official and individual 12 capacities. However, “state officials acting in their official capacities cannot be sued for damages 13 under Section 1983.” Goldstein v. City of Long Beach, 715 F.3d 750, 753 (9th Cir. 2013). 14 Plaintiff only specifically requests damages for this claim. Dkt. 1 at 18. Summary judgment is 15 appropriate for the official capacity claim against McBain. 16 Finally, “[l]iability under section 1983 arises only upon a showing of personal 17 participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). McBain was 18 the Director of Executive Policy for DOC at the time the UA incident occurred. Dkt. 24-3 ¶ 2. 19 He states in a declaration that his responsibilities “were focused on public policy as it related to 20 legislation that affected the agency” and that he “did not have the authority or responsibility to 21 implement internal DOC policies or procedures, such as those governing the employment of 22 corrections officers or establishing how officers should conduct themselves when interacting 23 with individuals on community custody.” Id. ¶ 5. Smithson’s response does not point to any 24 evidence to support his allegations of McBain’s conduct in the complaint or to dispute McBain’s 1 contention that he did not have the responsibilities alleged. See Dkt. 26 at 22–24. Accordingly, 2 Smithson has not shown a genuine dispute of material fact and summary judgment will be 3 granted as to McBain in his individual capacity. 4 5. Americans with Disabilities Act Claim 5 Defendants also argue that summary judgment is warranted for Smithson’s Americans 6 with Disabilities Act (“ADA”) claim, which he asserts against Defendants Lewis, Smith, 7 Hendricks, McBain, and John Does 1–5. 8 First, Smithson does not state in his complaint whether he is bringing this claim against 9 the named Defendants in their individual or official capacities. “[A] plaintiff cannot bring an 10 action under 42 U.S.C. § 1983 against a State official in her individual capacity” under Title II of 11 the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Accordingly, to the extent that 12 Smithson asserts claims against Defendants in their individual capacities, those claims must be 13 dismissed. 14 To state a claim under Title II of the ADA, a plaintiff generally must show: (1) she is an individual with a disability; (2) she is otherwise qualified to participate in or 15 receive the benefit of a public entity’s services, programs or activities; (3) she was either excluded from participation in or denied the benefits of the public entity’s 16 services, programs or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination was by 17 reason of her disability. 18 Sheehan v. City and Cnty. of S.F., 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part, cert. 19 dismissed in part sub nom. City & Cnty. of S.F., Cal. v. Sheehan, 575 U.S. 600 (2015)). 20 The Ninth Circuit has recognized two types of Title II claims relating to arrests: 21 (1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) 22 reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to 23 reasonably accommodate the person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than 24 other arrestees. 1 Id. “A public entity may be liable for damages under Title II of the ADA . . . if it intentionally or 2 with deliberate indifference fails to provide meaningful access or reasonable accommodation to 3 disabled persons.” Updike v. Multnomah Cnty., 870 F.3d 939, 951 (9th Cir. 2017) (internal 4 quotation marks and citation omitted). 5 Smithson asserts a reasonable accommodation claim for damages. See Dkt. 1 at 19–20. 6 Defendants argue that Smithson has not produced any evidence of deliberate indifference, let 7 alone intentional discrimination. In response, Smithson does not address the issue and points to 8 no evidence in the record establishing deliberate indifference. Accordingly, summary judgment 9 is appropriate for this claim. See Spirit Master Funding, 2020 WL 805964, at *9. 10 6. Wage Loss/Loss of Earning Capacity 11 Smithson’s complaint states that “[t]he Defendants’ acts and failure to act impaired 12 Plaintiff Smithson’s ability to earn wages. As a direct result Plaintiff Smithson anticipates future 13 lost wages caused by the Defendants.” Dkt. 1 at 9. Defendants seek summary judgment on this 14 element of damages on the basis that Smithson has produced no evidence of wage loss and testified 15 that he has not been able to work since long before the UA incident. Smithson does not address 16 this claim or point to any evidence to support it in his response. The Court will therefore grant 17 summary judgment as to any wage loss or loss of earning capacity claim. See Spirit Master 18 Funding, 2020 WL 805964, at *9. 19 III. CONCLUSION 20 Therefore, it is hereby ORDERED that: 21 • Defendants’ Motion for Summary Judgment is DENIED as to Plaintiff’s Fourth 22 Amendment Excessive Force Claim against Defendant Hammond and his Fourth 23 Amendment Wrongful Arrest Claim against Defendant Hammond. 24 1 • Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiff’s Eighth 2 and Fourteenth Amendment Excessive Force Claim; his Wrongful Arrest Claim 3 against Defendants Lewis, Smith, and Hendricks; his Unconstitutional Policy, 4 Practice, or Custom Claim; his Americans with Disabilities Act Claim; and his 5 Wage Loss/Loss of Earning Capacity Claim. 6 • Defendants Sarah Lewis, Amber Smith, Richard Hendricks, Alex McBain, and all 7 John/Jane Doe Defendants are DISMISSED from this case with prejudice. 8 9 Dated this 27th day of October, 2023. 10 A 11 Tiffany M. Cartwright 12 United States District Court Judge 13 14 15 16 17 18 19 20 21 22 23 24