Alvarez v. University of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JAMES-BRENT: ALVAREZ, Case No. 6:19-cv-01071-AA

OPINION AND ORDER

Plaintiff,

vs.

UNIVERSITY OF OREGON, et al.,

Defendants.

AIKEN, District Judge:

Plaintiff James-Brent: Alvarez, proceeding pro se, alleges that Defendants,

various University of Oregon employees and officials, violated his rights under

federal law. Plaintiff’s claims arise from a traffic stop by University of Oregon Police

Department (“UOPD”) officers, which culminated with UOPD officers tasing and

arresting Plaintiff. Before the Court is Defendants’ Motion for Summary Judgment,

ECF No. 85, along with the Parties’ responsive motions, and Plaintiff’s other motions,

which the Court construes as a Motion for Declaratory Judgment, ECF No. 106, and

Motions for Leave to Amend, ECF Nos. 109, 112, 113, 114, and 115. Having

considered the parties’ briefs, declarations, and exhibits, and for reasons next

explained, Defendants’ Motion for Summary Judgment, ECF No. 85, is GRANTED,

and Plaintiff’s motions, ECF Nos. 106, 109, 112, 113, 114, and 115 are DENIED.

SUMMARY JUDGMENT STANDARD

At the summary judgment stage, facts must be viewed in the light most

favorable to the nonmoving party only if there is a “genuine” dispute as to those facts.

Fed. Rule Civ. Proc. 56(c). Scott v. Harris, 550 U.S. 372, 380 (2007). When the moving

party has carried its burden under Rule 56(c), its opponent must do more than simply

show that there is some metaphysical doubt as to the material facts . . . Where the

record taken as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial. Matsushita Elec. Industrial Co. v. Zenith

Radio Corp., 475 U.S. 574, 586–587 (1986) (quotations and footnote omitted). “[T]he

mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Scott, 550 U.S. at 380 (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247–248 (1986) (emphasis in Scott).

BACKGROUND

The procedural history pertaining to Plaintiff’s “other motions” is discussed in

greater detail below.

I. Procedural History Relevant to Summary Judgment

In January 2020, the Court issued an Opinion and Order, ECF No. 37,

dismissing all Plaintiff’s claims against the University of Oregon and UOPD with

prejudice, and all claims against the individual defendants except for Plaintiff’s claim

under 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment. The

Court granted Plaintiff leave to amend claims asserted under § 1985 and § 1986.

Plaintiff filed a Second Amended Complaint (“SAC”), ECF No. 38, adding

UOPD Command Officer Don Morris as a defendant and providing supplemental

facts for his claims. Defendants filed a Motion to Dismiss, ECF No. 41. Plaintiff did

not respond to Defendants, but rather requested Leave to File a Third Amended

Complaint, ECF No. 45, to which Plaintiff attached his “proposed complaint.”

On August 25, 2020, the Court considered those motions together, concluding

that the “proposed complaint” added “new claims and theories of liability,” but did

not “correct any of the deficiencies” the Court had identified within Plaintiff’s

previously filed complaints. Op. Order (“Order”) at 32, Aug. 25, 2020, ECF No. 64.

The Court determined that Plaintiff’s “proposed amendments would be futile” given

that Plaintiff had been granted an opportunity to allege facts sufficient to show

entitlement to relief but had not done so. Order at 32. Accordingly, the Court granted

Defendants’ Motion to Dismiss, and denied Plaintiff’s Motion for Leave to File a Third

Amended Complaint. The Court ordered the case to proceed on one claim: Plaintiff’s

§ 1983 claim for excessive force against the named UOPD officers. Order at 32.

Following the Court’s Order, Plaintiff filed several motions, including what the

Court construed as a motion for reconsideration of its August 25, 2020 Order and

renewed request to file a third amended complaint. The Court denied Plaintiff’s

motions by Minute Order, ECF No. 81, restating that the case would proceed on a

single claim under § 1983 for excessive force under the Fourth Amendment against

UOPD Officers Sitts, Barrett, Geeting, Brooks, and Morris.

Defendants filed a Motion for Summary Judgment (“MSJ”), ECF No. 85.

Plaintiff filed another motion requesting leave to file a third amended complaint and

the Court denied Plaintiff’s request by Minute Order, ECF No 97. After Plaintiff filed

a responsive and supplemental motion in opposition to Defendant’s Motion for

Summary Judgment, Plaintiff filed six additional motions, each primarily aimed at

amending the underlying claims in this case.

II. Factual Background

The following facts are undisputed or readily apparent from UOPD’s bodycam

footage. See Scott, 550 U.S. at 380 (2007) (stating that, when parties tell two different

stories, one of which is contradicted by the video footage, the court should view the

facts in the light depicted by the videotape.).

In mid-January 2019, while on duty and in a full department-issued uniform

with a prominently displaced badge, Officer Sitts was driving a marked patrol vehicle

equipped with an in-car camera and mobile audio video system in the area near 13th

Avenue and Alder Street in Eugene, Oregon. Around noon, Officer Sitts observed a

black BMW M3—a "street legal" enhanced-performance race vehicle—traveling on

13th Avenue near Kincaid Street with no rear license plate. SAC ¶¶ 11, 20-21; Sitts

Decl. ¶2. Officer Sitts followed the vehicle, noting that it had extremely dark tint

obscuring the interior of the vehicle. Sitts Decl. ¶ 2. Officer Sitts pulled the vehicle

over. Plaintiff was the driver. As Officer Sitts approached the vehicle, he observed

that there was no temporary registration tag in the rear window. Officer Sitts was

not able to verify this before approaching the vehicle on foot because of the vehicle's

dark window tint. Wade Decl. ¶ 7 Ex. 6 at 0:01-1:05; Sitts Decl. ¶2. When Officer

Sitts arrived at the driver's side window, Plaintiff opened it about one to two inches

and did not lower it further at any point during the traffic stop. Wade Decl. ¶¶ 3, 7,

8C, Exs. 2, 6, 7C; Sitts Decl. ¶2.

Plaintiff asked Officer Sitts for his name, badge number, and reason for the

traffic stop. Sitts Decl. ¶ 2. After answering Plaintiff's questions, Officer Sitts

informed Plaintiff that he had pulled him over "for not having a rear plate on the

automobile." SAC ¶¶ 18-19, 21, 24; Wade Decl. ¶ 7, Ex. 6 at 0:01-1:05. Sitts then

asked Plaintiff for his driver's license, proof of registration, and proof of insurance.

Plaintiff invoked his Miranda rights and refused to answer questions or provide a

copy of the requested documents. Officer Sitts repeated his request, but Plaintiff

continued to remain silent, except to repeatedly ask Officer Sitts for his name, badge

number, and the reason for stopping him. SAC ¶¶ 23, 27-28; Wade Decl. ¶ 7, Ex. 6;

Sitts Decl. ¶ 2.

Plaintiff then began reading from a prepared list, stating that he was not

operating his vehicle in a "commercial manner" and thus was “not under the

jurisdiction of the State laws.” Pls. Resp Opp’n 3, ECF No. 100; Wade Decl. ¶ 7, Ex.

6; Sitts Decl. ¶ 2. Officer Sitts observed Plaintiff reaching across the front of his

vehicle, but Officer Sitts could not see what exactly plaintiff was doing or what was

in Plaintiff's hands due to the dark window tint and the two-inch window opening.

Sitts Decl. ¶ 2.

During Officer Sitts's interactions with Plaintiff, he observed Plaintiff making

furtive movements towards the center console, door pockets, and dash area of his

vehicle. Officer Sitts determined that Plaintiff was behaving in a concerning manner.

Wade Decl. ¶ 3, Ex. 2; Sitts Decl. ¶ 2. Officer Sitts requested back up from other

police. Officer Brooks arrived, and, from the passenger side of the vehicle, Officer

Brooks also observed Plaintiff repeatedly reaching under his driver's seat and in the

glovebox. Brooks Decl. ¶ 2. Officer Brooks was unable to see what exactly Plaintiff

was doing due to the dark window tint and “was greatly concerned for the safety of

the Officers on the stop the longer the stop continued.” Wade Decl. ¶¶ 3, 9A-9C.

Eventually, Plaintiff provided a multi-page document through the crack in the

car window, which led Officer Sitts to suppose that Plaintiff harbored “sovereign

citizen” beliefs. SAC ¶ 34; Wade Decl. ¶ 7, Ex. 6. One of the documents contained

Plaintiff’s name. Plaintiff also provided his birthdate and home address, which

confirmed his identity and that he had an identification card, but no driver's license.

Based on that information, dispatch relayed that Plaintiff had a Law Enforcement

Data System (“LEDS”) caution code as being an “expert martial artist.” Wade Decl.

¶ 3, Ex. 2; Barrett Decl. ¶ 2; Geeting Decl. ¶ 2; SAC ¶ 2.

Sergeant Geeting and Corporal Barrett arrived on the scene to assist Officers

Sitts and Brooks. SAC ¶ 31; Barrett Decl. ¶ 2; Geeting Decl. ¶ 2. As Corporal Barrett

approached the vehicle, he observed the vehicle's heavily tinted windows. Based on

his training and experience, Corporal Barrett determined that the windows were

tinted illegally. Barrett Decl. ¶ 2. Officer Sitts then repeated his request for the

standard driving documentation a third time, but Plaintiff refused. (SAC ¶ 32.

After some time, Plaintiff the officers with a document entitled “Affidavit of

Truth,” which Plaintiff alleges constitutes a contract, and a seventeen-page document

of “U.S.-Supreme-Court-Case-Law for the traveling without the license-plates.” SAC

¶ 34; Wade Decl. ¶ 3, Ex. 2. The so-called Affidavit of Truth alerted the UOPD

Officers of Plaintiff's willingness to defend himself:

“. . . I will, under protest, be compliant and not resist any command you

may issue unless I find it necessary to act in defense of my health and

safety or the health and safety of others present as is allowed by law. I

am competent to determine when acts of self-defense are, and are not

necessary and justified. Unless you unjustly and/or unlawfully assault

or commit battery upon me I pose no threat or danger to you or your

associates.”

SAC ¶ 36 (emphasis added).

After reviewing the document, Sergeant Geeting saw Plaintiff making furtive

movements in the vehicle, but the rear and floorboards of his vehicle were hard to see

due to the dark tint. Based on Plaintiff's shifty movements and odd behavior,

Sergeant Geeting became concerned that Plaintiff could be concealing a weapon.

Wade Decl. ¶ 3, Ex. 2; Geeting Decl. ¶ 2.

Corporal Barrett then asked Plaintiff if there were any weapons in the vehicle.

Plaintiff refused to answer him. After a few minutes, Corporal Barrett moved in front

of the vehicle and aimed a flashlight through the front window, so he could see

Plaintiff through the tinting. As he was watching Plaintiff through the front window,

Corporal Barrett observed that the vehicle's Vehicle Identification Number was

covered with a piece of paper. Wade Decl. ¶¶ 3, 6, Exs. 2, 5A; Barrett Decl. ¶ 2. After

Plaintiff's failure to comply with multiple requests to provide the necessary

documents, Officer Sitts determined that a vehicle operated with no driver’s license,

no proof of insurance, no registration, and parked in a “No Parking” fire lane in the

lane of travel was creating a traffic hazard.

Officer Sitts decided that it was best to remove Plaintiff from the vehicle,

conduct a "pat down" for any weapons that could be used against the UOPD Officers,

and facilitate the vehicle being towed for the above-referenced traffic violations.

Wade Decl. ¶ 3, Ex. 2; Sitts Decl. ¶ 2.

After consulting with Sergeant Geeting and the other officers, Officer Sitts

approached Plaintiff's vehicle with Sergeant Geeting. Corporal Barrett stood in front

of the vehicle, and Officer Brooks provided cover from the passenger side. Officer

Sitts informed plaintiff that his vehicle was being towed for several traffic infractions,

ordered plaintiff to step out of the vehicle, and told Plaintiff that he was not free to

go. Plaintiff stated for his recording that he did not consent and was being

“kidnapped,” and then said he would comply with the order to exit the vehicle.

Plaintiff rolled his window back up and reached around the interior of his vehicle.

SAC ¶ 44; Wade Decl., ¶¶ 3, 7, Exs. 2, 6A; Sitts Decl. ¶ 2.

When Plaintiff opened the driver's side door and stepped out, he reached his

right hand into the front pocket on his sweatshirt. Wade Decl. ¶ 7, Ex. 6A. Officer

Sitts grabbed Plaintiff’s right arm as Plaintiff reached into his front pocket. SAC ¶

50; Wade Decl. ¶¶ 6, 7, Exs. 5B, 6A. Plaintiff shouted, “Get your fucking hands off

me.” Wade Decl. ¶¶ 3, 7, Exs. 2, 6A. Sitts told Plaintiff to put his hands behind his

back and that he was being detained. SAC ¶¶ 48-50; Wade Decl. ¶¶ 3, 6, 7, Exs. 2,

5B, 6A. As Sergeant Geeting and Officer Sitts attempted to control Plaintiff's arms

to place him under arrest, Plaintiff lurched away from Officer Sitts towards Officer

Geeting, apparently to defend himself as he deemed “necessary and justified.” SAC

¶ 36(9); Wade Decl. ¶¶ 3, 6, 8, Exs. 2, 5B, 7D. Plaintiff “instinctively resisted” Officer

Sitts. Pls. Resp. Opp’n at 5. Plaintiff grabbed Sergeant Geeting by the arm, swinging

him around to “use officer Geeting as a shield.” Pls. Resp. Opp’n at 5; Wade Decl. ¶

9a, Ex. 8 33:00-10. Plaintiff then shoved his hand into Sergeant Geeting’s face,

plunging his fingers into Sergeant Geeting’s mouth, grabbing him by the cheek, and

cutting the gum on the lower left side of Sergeant Geeting's jaw. Wade Decl. ¶ 9a,

Ex. 8 33:00-10. Plaintiff pulled Sergeant Geeting towards a street with busy traffic.

Wade Decl. ¶¶ 8, 9, Ex. 7D, 8D.

At that point, Corporal Barrett drew his Taser and advised Plaintiff "stop or

you're going to be tased." Wade Decl. ¶¶ 3, 7, Exs. 2, 6A. Corporal Barrett then

deployed his Taser in probe mode. SAC ¶¶ 49-54; Wade Decl. ¶ 7, Ex. 6B. Plaintiff

fell to the ground. Wade Decl. ¶¶ 7, 9a, Exs. 6B, 8 33:00-15. About ten seconds passed

from when Plaintiff exited his car until the moment he was tased. The Pulse Log

Graph shows that the Taser was deployed for about 5 seconds. Wade Decl. ¶ 5, Ex.

4; Barrett Decl. ¶ 2.

Sergeant Geeting, Officer Sitts, and Officer Brooks placed Plaintiff in

handcuffs and took him into custody. Wade Decl. ¶¶ 3, 6, 9, Exs. 2, 5C, 8E. The

UOPD officers then told Plaintiff that he was under arrest and read him his Miranda

rights. SAC ¶¶ 56, 58; Wade Decl. ¶ 9a, Ex. 8 33:00-15. While lying on the grass,

Plaintiff stated to the officers “I do appreciate you doing your job.” Wade Decl. ¶ 9,

Exs. 8 34:58-35:09. The UOPD officers discovered that only one of the four Taser

darts was attached to Plaintiff, who laughed and agreed that it felt like one dart hit

his leg. Wade Decl. ¶ 9a, Ex. 8 35:30-36:30. With Plaintiff’s permission, Corporal

Barrett removed the dart from Plaintiff's left leg. Plaintiff denied having any other

injuries. Wade Decl. ¶¶ 3, 6, Exs. 2, 5D; Barrett Decl. ¶ 2. The time between Officer

Sitts pulling Plaintiff over and the UOPD Officers being taken into custody was

approximately 30 minutes. Wade Decl., ¶ 7, Ex. 6; Sitts Decl. ¶ 2.

Plaintiff was cited for failure to display registration plates in violation of ORS

803.540; failure to carry a license or to present a license to a police officer in violation

of ORS 807.570; and operating a vehicle without driving privileges in violation of ORS

807.010. Plaintiff was also charged with three criminal offenses—interference with

a peace officer, resisting arrest, and assault of police officers. SAC ¶¶ 65, 68; Wade

Decl. ¶ 3, Ex. 2.

DISCUSSION

Plaintiff contends that UOPD officers used excessive force when UOPD officers

committed a “battery” against him for “Plaintiff-resisting the assault.”1 Plaintiff also

contends that the officers used excessive force when they shot him using “deadly-

1 Plaintiff insists on using his own form of syntax for writing that is unusual.

The Court liberally construes Plaintiff’s chosen syntax style as best as it can,

reprinting it in quotes as needed.

weapons-tasers” and caused “puncturing of the flesh and the electrocution of the

Plaintiff, . . . a weapon-less-citizen[.]” SAC ¶ 51.

Defendants argue that no reasonable factfinder could conclude that the UOPD

Officers used excessive force in apprehending plaintiff. MSJ at 15. Defendants

maintain that UOPD Officers used “reasonable and appropriate force to gain

compliance from a combative expert mixed-martial artist.” Defendants also contend

that Plaintiff’s § 1983 claim is barred by the Eleventh Amendment, and,

alternatively, that UOPD Officers are entitled to qualified immunity from suit

because Plaintiff has neither demonstrated that (1) a genuine issue of material fact

exists regarding whether use of a taser under the circumstances here violated

Plaintiff’s Fourth Amendment rights nor that (2) the right was clearly established.

Plaintiff responded that Corporal Barrett deprived him of his right to be

informed about the nature of Officer Sitts’ request to turn around and face his vehicle.

Pls. Reply in Opp’n. at 5. He contends he “had a right to know what the armed officers

intended to do to him before he turned his back to them.” Id. Plaintiff maintains

that he “instinctively resisted” Corporal Barrett, Sitts, and Geeting when they

attempted to restrain him. Id. In Plaintiff’s view, Corporal Barrett escalated the

assault when he deployed his taser “after [Plaintiff] escaped the officer’s assault[.]”

Plaintiff also argues that “the State laws are not applicable to Plaintiff.” Id. at 7.

Plaintiff did not address Defendants’ arguments concerning the Eleventh

Amendment or qualified immunity.

Defendants reply that Plaintiff ultimately concedes that he believes the laws

do not apply to him; that he “resisted” arrest; that he actively defended himself by

using Officer Geeting as a “shield”; and that he attempted to “escape” the arresting

officers. In light of Plaintiff’s own arguments, Defendants restate that UOPD Officers

“[u]sed a reasonable amount of force to gain compliance” from Plaintiff, who “engaged

in an actual physical struggle and threatening behavior[.]” Reply to MSJ 7, ECF No.

105.

Plaintiff filed a Supplemental Response adding that “the traffic stop was

excessive because there was [sic] 5 armed police officers and against the plaintiff.”

Supp. Resp. 9, ECF No. 108. Otherwise, Plaintiff does not address the legal

arguments Defendants raise, but rather contends, among other things, that the state

laws do not apply to Plaintiff and that UOPD Officers “never read Plaintiff’s

document,” presumably the so-called Affidavit of Truth. Id. at 7-9.

I. Excessive Force under § 1983

Section 1983 "provides a federal cause of action against any person who, acting

under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526

U.S. 286, 290 (1999). To maintain a claim under Section 1983, "a plaintiff must both

(1) allege the deprivation of a right secured by the federal Constitution or statutory

law, and (2) allege that the deprivation was committed by a person acting under color

of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

Here, the parties do not dispute that the individual Defendants were acting

under color of state law. Accordingly, the Court proceeds to analyze Plaintiff’s claim

of excessive force under the Fourth Amendment.

In evaluating a Fourth Amendment claim of excessive force, we ask “whether

the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989) (citations omitted).

In assessing the objective reasonableness of a particular use of force, the Court

considers: (1) the severity of the intrusion on the individual's Fourth Amendment

rights by evaluating the type and amount of force inflicted, (2) the government's

interest in the use of force, and (3) the balance between the gravity of the intrusion

on the individual and the government's need for that intrusion. Id. at 396; Lowry v.

City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc).

The objective reasonableness test is necessarily fact-dependent. The relevant

factors “must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight,” because “police officers are often

forced to make split second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in a particular

situation.” Graham, 490 U.S. at 396-97. The Court notes that “the right to make an

arrest or investigatory stop necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it,” and thus “[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge's chambers, violates the

Fourth Amendment." Id. at 396 (internal quotation marks and citations omitted). If

there are “no genuine issues of material fact and ‘the relevant set of facts’ has been

determined, the reasonableness of the use of force is ‘a pure question of law.’” Lowry,

858 F.3d at 1256.

A. Type and Amount of Force Used

Applying the factors above, the Court first considers the nature and quality of

the force used against Plaintiff. Here, the undisputed evidence is that, in period

lasting about ten seconds, UOPD Officers unsuccessfully attempted to restrain

Plaintiff by taking hold of his arm, and when Plaintiff grabbed at Officer Geeting,

swung him around and, by Plaintiff’s own admission, resisted arrest, Officer Barret

deployed a taser resulting in a single dart making contact with Plaintiff’s leg for

approximately five seconds, ending when Plaintiff fell to the ground. Video footage

from multiple perspectives show when UOPD officers told Plaintiff that medical staff

would arrive to remove the dart, Plaintiff asked why UOPD Officers could not take it

out themselves. During the conversation about the dart, Plaintiff laughed. Plaintiff

also told the officers that he appreciated them doing their job. Medical staff arrived

and noted Plaintiff was clear of injuries.

Based on undisputed evidence, the Court determines the degree of intrusion

was necessary under the totality of the circumstances in this case, where police

dispatch warned about Plaintiff’s martial arts experience, UOPD officers’

acknowledged Plaintiff’s documentation concerning Plaintiff’s willingness to defend

himself as necessary, and observed that Plaintiff had been reaching around in his car

before he exited his vehicle and reached into his pocket when he stepped out. Use of

a taser is not an insignificant force, but the Court concludes on the evidence such use

was objectively reasonable’ in light of the facts and circumstances confronting UOPD

officers.

B. Government Interest in Use of Force

Next, this court considers the governmental interests at stake. Under this

factor, the Supreme Court has identified three additional elements for consideration.

Graham, 490 U.S. at 396. First, the Court considers the severity of Plaintiff’s crimes.

Id. Here, Plaintiff’ was operating a heavily tinted vehicle with no license plates, and

upon further inspection, he had concealed Vehicle Identification Number, and refused

to provide a driver’s license or proof of registration. The vehicle infractions may have

constituted the initial crime at issue, but the “severity of the crime” escalated when

Plaintiff stepped out of his vehicle and grabbed Officer Geeting by the arm and face.

Officer Barret did not tase Plaintiff based on his vehicle infractions, but because

Plaintiff assaulted Officer Geeting. Accordingly, the severity of Plaintiff’s crimes

factor favors the government.

Second, the Court considers whether Plaintiff posed an immediate threat to

the safety of the officers or others, which the Ninth Circuit recognizes as the most

important of the three Graham factors. Smith v. City of Hemet, 394 F.3d 689, 702

(9th Cir.2005) (en banc). Here, as discussed above, the circumstances at the time

involved OUPD officers viewing information identifying Plaintiff as a potential

hazard. Plaintiff does not dispute that fact, but rather, emphasizes his own expertise

in martial arts and self-defense and claims that his violent reaction was instinctive.

Further, UOPD officers expressed concern that Plaintiff was concealing weapons and

when Plaintiff reached his hand into his pocket, it was unknown whether he was

withdrawing a weapon. This evidence suggests that UOPD officers could reasonably

believe that officer safety was at risk.

Third, the Court considers whether Plaintiff was actively resisting arrest or

attempting to evade arrest by flight. Graham, 490 U.S. at 396. In this case, the

undisputed material facts indicate that Plaintiff lurched away when OUPD officers

attempted to restrain him, then grabbed Officer Geeting and swung him around as a

shield, eventually hooking Officer Geeting by the mouth and pulling him towards

traffic. Plaintiff admits that he actively resisted arrest and that he tried to escape

the officers’ attempt to restrain him. Accordingly, this factor tips heavily in favor of

Defendants.

After balancing the factors concerning the government’s interest in use of force,

the Court concludes that UOPD held a reasonable interest in deploying a taser for

five seconds until Plaintiff stopped grabbing and swinging at Officer Geeting.

C. Balance Between the Gravity of the Intrusion and Need for the

Intrusion

Finally, the Court must consider whether the force that was applied was

reasonably necessary under the circumstances after balancing the gravity and the

need for the intrusion on Plaintiff's Fourth Amendment rights. Graham, 490 U.S. at

397. Even when viewed in the light most favorable to Plaintiff, all of the factors

suggest the use of the taser was objectively reasonable: UOPD's taser deployment

was brief, appropriately commensurate with Plaintiff's conduct, and reasonably

proportionate and necessary to gain compliance from an uncooperative, self-

proclaimed expert mixed-martial artist engaged in actual physical struggle and

threatening behavior towards the UOPD Officers and unresponsive to clear,

reasonable commands before Corporal Barrett deployed his taser. Plaintiff's Fourth

Amendment rights were not violated by defendant Barrett, or any other UOPD

officer. Corporal Barrett's use of the taser was not constitutionally excessive.

II. Summary of Excessive Force Findings

The Court recognizes that the Ninth Circuit has “held on many occasions that

summary judgment or judgment as a matter of law in excessive force cases should be

granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). That

is because the excessive force inquiry “nearly always requires a jury to sift through

disputed factual contentions, and to draw inferences therefrom.” Id. Here, however,

the evidence, reviewed in the light most favorable to Plaintiff, cannot support a

finding of excessive force.

The evidence is that Corporal Barrett used nonlethal force in the context of an

incident involving Plaintiff who (1) had a caution flag based on his expert martial-

arts experience; (2) made movements to reach around in an obscured vehicle; (3) had

not been searched for weapons; (4) had been uncooperative with the UOPD Officers

for almost half an hour; (5) had expressed that he—in his sole discretion—would

decide when he would use force in self-defense; (6) refused to surrender or obey the

police officers' reasonable (and the Court observes, polite) instructions; and (7)

actively resisted arrest.

Those undisputed facts, even viewed in the light most favorable to Plaintiff,

show a routine traffic stop that escalated solely because of Plaintiff's resistance and

physical aggression. The Court has read every declaration and viewed all Plaintiff’s

and Defendants’ exhibit and takes particular note of the video evidence. The record

taken as a whole “could not lead a rational trier of fact to find for the nonmoving

party,” where Defendants have properly supported their argument that UOPD

officers’ actions were “objectively reasonable” in light of the facts and circumstances

confronting them. Matsushita Elec. Industrial Co., 475 U.S. at 586–587; Graham 490

U.S. at 397. Accordingly, Defendants are entitled to summary judgement.

Because the Court has determined that Plaintiff’s rights were not violated, it

is not necessary to reach the issue of whether Plaintiff’s claim is barred by the

Eleventh Amendment or the issue of qualified immunity.

PLAINTIFF’S OTHER MOTIONS.

I. Procedural History

The Court has given Plaintiff considerable leeway to file numerous amended

pleadings. After Plaintiff initiated suit and Defendants filed a Motion to Dismiss,

Plaintiff filed several Amended Complaints (or Motions to Amend the Complaint

which included his proposed amendments). ECF Nos. 19, 29, 36. As discussed

earlier, the Court considered each of those filings and issued an Opinion and Order

granting Plaintiff leave to amend his § 1983, § 1985, and § 1986 claims against the

individual defendants. Op. & Order, ECF No. 37 (Jan. 6, 2020).

Plaintiff then filed the titled “Second Amended Complaint.” ECF No. 38.

Defendants responded with a second Motion to Dismiss. ECF No. 41. Plaintiff did

not directly respond to Defendant’s Motion to Dismiss. Instead, he filed another

“Motion for Leave to File Amended Complaint.” ECF No. 45. By Minute Order, the

Court directed Plaintiff “to file a brief responding to the arguments made in

defendants’ motion to dismiss,” and ordered Defendants to respond to Plaintiff’s

request for Leave to File Amended Complaint. Order, ECF No. 46 (Apr. 1, 2020).

The parties filed responsive briefings.

Plaintiff then filed a Motion for Leave to Amend his response to Defendant’s

Motion to Dismiss. ECF No. 56. The Court granted it. Order, ECF No. 59 (May 19,

2020). Plaintiff also filed a motion raising a claim for “Performance of a Contract,”

ECF No. 58, to which Defendants responded and Plaintiff replied—all while the Court

had yet to rule on Defendant’s Motion to Dismiss. The Court denied Plaintiff’s Motion

for Performance of Contract, ultimately declining to consider it. Order, ECF No. 63

(Jun. 11, 2020).

The Court then issued an Opinion and Order granting in part Defendants’

Motion to Dismiss, ECF. No 41, and denying Plaintiff’s Motion(s) to File a Third

Amended Complaint. Op. & Order, ECF No. 64 (Aug. 25, 2021). In denying Plaintiff’s

Motion to File a Third Amended Complaint, the Court explained that it had provided

notice to Plaintiff about the deficiencies in his proposed complaints, and that, after

giving Plaintiff opportunity to amend, it was clear that no amendment could cure the

defects. Op. & Order at 32 (Aug. 25, 2021). The Court thoroughly discussed its

reasoning for each of Plaintiff’s claims and proposed amendments, concluding that

each were “futile.” Op. & Order at 5, 24, 25, 27, 29-32 (Aug. 25, 2021); see Bonin v.

Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (futility of amendment “can, by itself,

justify the denial of a motion for leave to amend.”); Moore v. Kayport Package Exp.,

Inc., 885 F.2d 531, 538 (9th Cir. 1989) (“Leave to amend need not be given if a

complaint, as amended, is subject to dismissal.”). As explained above, the Court

ordered the case to proceed on a single claim under § 1983 for excessive force.

Despite the court’s repeated denial of Plaintiff’s requests to file an amended

complaint, Plaintiff filed a Motion for Reconsideration which included a request “for

leave to file a Third Amended Complaint,” ECF No. 71. The Court granted the Motion

for Reconsideration to clarify a clerical detail but denied Plaintiff’s request for leave

to file a Third Amended Complaint, emphasizing that the case would proceed on a

single claim under § 1983 for excessive force. Order, ECF 81 (Dec. 11, 2020).

Nevertheless, after Defendants filed their MSJ, Plaintiff filed motions to “File

an Amended Complaint”, ECF No. 109; “Amend the Pleadings”, ECF No. 113; and

“Supplement the Complaint”, ECF No 114. Plaintiff also filed an “Original Action for

Declaratory Judgment”, ECF No. 106, and an “Amended Action for Declaratory

Judgment”, ECF No 112.

II. Discussion

A. Leave to Amend

The district court has particularly broad discretion in deciding whether to

grant leave to amend when a plaintiff has previously been permitted leave to amend.

Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002). In determining

whether to grant leave to amend, the district court considers the presence of any of

the following four factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing

party, and (4) futility. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708,

712 (9th Cir. 2001). As discussed, futility of amendment, however, “can, by itself,

justify the denial of a motion for leave to amend.” Bonin, 59 F.3d at 845

The Court has reviewed Plaintiff’s motions to “File an Amended Complaint”,

ECF No. 109; “Amend the Pleadings”, ECF No. 113; and “Supplement the Complaint”,

ECF No 114. Those motions are denied for the reasons stated in the Court’s August

25, 2021 Order, in addition to the finding that the motions are filed in bad faith and

will cause undue delay, where Plaintiff has disregarded the Court’s three orders

denying Plaintiff’s prior requests to amend his pleadings.

B. New Theories of Liability

The Court has also considered Plaintiff’s “Original Action for Declaratory

Judgment”, ECF No. 106, and his “Amended Action for Declaratory Judgment”, ECF

No. 112, both of which Plaintiff filed four months after Defendants filed their Motion

for Summary Judgment.

Among other things, Plaintiff challenges the constitutionality of ORS 807.010

and ORS 807.570—the statues under which he was cited for his traffic infractions.

That is a new theory of liability that Plaintiff did not raise in the operative complaint

according to which Defendants filed their MSJ.

The Ninth Circuit has explained that new theories may not be raised to defeat

summary judgment. “[A]dding a new theory of liability at the summary judgment

stage would prejudice the defendant who faces different burdens and defenses under

the second theory of liability.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th

Cir.2000). “The issues on summary judgment are framed by the complaint,” and “the

issues in the complaint guide the parties during discovery and put the defendant on

notice of what evidence is necessary to defend against the allegations.” Ortiz v. Lopez,

688 F. Supp.2d 1072, 1082 (E.D. Cal. 2010). “For these reasons, a plaintiff cannot

oppose summary judgment based on a new theory of liability because it would

essentially blind side the defendant with new legal issues after the bulk of discovery

has likely been completed.” Id.

Accordingly, the Court concludes that allowing Plaintiff to raise new theories

of liability at this late stage of litigation would prejudice Defendants and motions

attempting to do so are denied.

CONCLUSION

For the reasons stated, Plaintiff’s Motions, ECF Nos. 106, 109, 112, 113, 114,

and 115 are DENIED. Further, Defendants have carried their burden to show that,

as a matter of law, Plaintiff cannot prevail on his § 1983 claim of excessive force in

violation of the Fourth Amendment. Therefore, Defendants’ Motion for Summary

Judgment, ECF No. 85, is GRANTED and this case is DISMISSED. Final judgment

shall be entered accordingly.

IT IS SO ORDERED.

Dated this _2_9_t_h_ day of March 2022.

________/s_/_A_n__n_ A__ik__e_n_______

Ann Aiken

United States District Judge