Farris v. Culp

1

2

FILED IN THE

3 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON

4 Dec 09, 2022

5 SEAN F. MCAVOY, CLERK

6

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF WASHINGTON

9

10 WENDY FARRIS,

11 Plaintiff, No. 2:20-CV-00290-SAB

12 v.

13 LOREN CULP, REPUBLIC POLICE ORDER GRANTING

14 DEPARTMENT, CHRISTINE CLARK, DEFENDANTS’ MOTIONS FOR

15 FERRY COUNTY SHERIFF, SUMMARY JUDGMENT

16 Defendant.

17

18 Before the Court are Defendant Ferry County and Christine Clark’s Motion

19 for Summary Judgment, ECF No. 28, and Defendants Loren Culp and Republic

20 Police Department’s Motion for Summary Judgment, ECF No. 35. The motions

21 were considered without oral argument. Plaintiff is appearing pro se and did not

22 respond to the motions. Michael McFarland represents Ferry County and Christine

23 Clark. Defendants Loren Culp and Republic Police Department (“the City”) are

24 represented by Jerry J. Moberg and Mary Rathbone. Having reviewed the record

25 and applicable caselaw, the Court grants Defendants’ motions.

26 Facts

27 This action stems from an incident on August 18, 2018, in which Plaintiff

28 claims she was wrongly arrested and prosecuted for being in control of a vehicle

1 while under the influence, resulting in her incarceration for two days, suspension

2 of driving privileges, and other damages. ECF No. 15.

3 The following facts are drawn from Defendants’ statements of facts, ECF

4 Nos. 29, 36.12

5 On Saturday, August 18, 2018, former Ferry County Sheriff’s Office Deputy

6 Christine Clark received a call from dispatch at approximately 9:27 a.m. advising

7 her there had been a report of a female driver slumped over in a small, red car at

8 the junction of Highway 20 and Highway 21 in the city of Republic, Washington.

9 At that time, Deputy Clark had served as a law enforcement for one and a half

10 years and her training included Basic Law Enforcement Academy. ECF No. 30-6

11 at 3. Deputy Clark arrived at the scene and observed a vehicle parked on an incline

12 at an angle off of Highway 20. Deputy Clark activated her vehicle’s emergency

13 lights and walked up to the vehicle. Deputy Clark observed a female in the driver’s

14 seat breathing slowly while slumped over to the right side of the vehicle with no

15 support for the upper part of her body. Deputy Clark asked dispatch to send

16 emergency response services (EMS). The occupant of the car was later identified

17 as Plaintiff, Wendy Farris.

18

19 1 The City’s Statement of Facts, ECF No. 36, violate Eastern District of

20 Washington Local Civil Rule 56(c)(1), which requires that each fact “cite to the

21 specific page or paragraph of the record where the fact is found (e.g., affidavit p. 3,

22 deposition p. 3, line 6, etc.).” LCivR 56(c)(1). However, the City relies entirely on

23 a single three-page declaration for support. See ECF No. 37. As the source of each

24 alleged fact is easily identifiable, the Court accepts the noncompliant filing.

25 2 Plaintiff did not oppose Defendants’ motions or separately address Defendants’

26 assertions of fact as required by LCivR 56(c). As such, the Court may consider

27 defendants’ facts undisputed for purposes of these motions. See LCivR 56(e); Fed.

28 R. Civ. P. 56(e)(2).

1 Deputy Clark knocked on the driver’s side window in an attempt to wake

2 Ms. Farris. Ms. Farris did not wake. Deputy Clark knocked a second time and Ms.

3 Farris woke up. Deputy Clark asked Ms. Farris to open the window. Ms. Farris

4 began looking around inside her vehicle. Deputy Clark then asked Ms. Farris to

5 open the door. Ms. Farris had trouble opening the door, so Deputy Clark assisted.

6 Ms. Farris asked where she was. Deputy Clark told her that she was in

7 Republic, Washington, and asked Ms. Farris where she was going. Ms. Farris

8 initially responded that she did not know, then said she was going to Oregon.

9 Deputy Clark observed that Ms. Farris’ speech was slow, and her responses took

10 several seconds each time. Deputy Clark also observed that Ms. Farris had pinpoint

11 pupils. Deputy Clark asked Ms. Farris if she had consumed any drugs or alcohol

12 and Ms. Farris said that she had not.

13 Deputy Clark asked Ms. Farris if she would step out of her vehicle so that

14 EMS could evaluate her when they arrived. Ms. Farris picked up a cell phone

15 charger with her right hand, looked at it for a few seconds, and then put it down.

16 She then started to look in a paper bag located in the passenger seat. Deputy Clark

17 repeated her request for Ms. Farris to step out of the vehicle. Ms. Farris stepped out

18 and Deputy Clark patted her down. Ms. Farris asked Deputy Clark if everyone got

19 patted down with others watching. Deputy Clark walked Ms. Farris to the other

20 side of her vehicle and completed the pat down.

21 Deputy Clark asked Ms. Farris why she was in town. Ms. Farris stated that

22 she was dropping off a friend and then asked Deputy Clark why she had called

23 EMS. Deputy Clark responded that she was worried about Ms. Farris because she

24 seemed confused. Deputy Clark asked Ms. Farris if she had a history of drug or

25 alcohol use. Ms. Farris stated that she did not.

26 Ferry County EMTs Brian Dreyer and Luis Trimm arrived on scene along

27 with Ferry County Task Director Phillip Starr. EMS obtained and charted Ms.

28 Farris’ vitals. ECF No. 30-3 at 4. Ms. Farris asked EMS if it was their job to harass

1 people and told them that it seemed to be a waste of taxpayer money. Ms. Farris

2 refused medical treatment and transport. ECF No. 30-2 at 2. Ms. Farris asked EMS

3 to “standby as witnesses” until Deputy Clark was done. EMS officers stayed at the

4 scene per Ms. Farris’ request. ECF No. 30-3 at 4.

5 The EMS incident report described Ms. Farris’ mental status as “confused,

6 event oriented, person oriented, place oriented, time oriented.” ECF No. 30-3 at 3.

7 It reported both pupils as “non-reactive.” Id. It also noted that Ms. Farris had a

8 “sluggish reaction to light” and “exhibited difficulty balancing.” ECF No. 30-3 at

9 3-4. In the report, the primary impression was “altered mental status” and the

10 secondary impression was “[s]ubstance abuse.” ECF No. 30-3 at 3. It noted that

11 Ms. Farris asked if EMS could conduct a blood alcohol test for her at the scene and

12 EMS informed her that it was not within the scope of practice. ECF No. 30-3 at 4.

13 Deputy Clark asked Ms. Farris if she would perform voluntary Field

14 Sobriety Testing and she agreed. Deputy Clark gave Ms. Farris the instruction to

15 hold her head still and follow the tip of her pen. Ms. Farris opened one eye and

16 then the other. Deputy Clark responded by asking Ms. Farris multiple times to keep

17 both of her eyes open. Deputy Clark had to remind Ms. Farris several times to hold

18 her head still and not to tilt her head in any direction.

19 Deputy Clark observed that Ms. Farris’ pupils were equal in size, her eyes

20 bloodshot, and her eyelids droopy. Ms. Farris also had no resting nystagmus and

21 equal tracking. Deputy Clark observed that Ms. Farris had a lack of smooth pursuit

22 in both eyes and distinct and sustained nystagmus at maximum deviation and prior

23 to forty-five degrees. Ms. Farris showed six out of six scoring clues for the

24 horizontal gaze nystagmus part of the test.

25 During the walk and turn portion of the test, Ms. Farris swayed back and

26 forth while lifting her hands to balance. Ms. Farris counted the number of steps

27 correctly but pivoted the wrong direction while yelling: “Pivoting!” On every step,

28 Ms. Farris stepped off-line and did not touch her heel to her toe. Ms. Farris scored

1 five out of eight scoring clues on the walk and turn. On the one leg stand test, Ms.

2 Farris scored two out of four scoring clues. She swayed and was unable to keep her

3 balance. She did not keep her lifted foot in front of her.

4 Deputy Clark concluded that Ms. Farris failed all of the voluntary field

5 sobriety tests and that the behaviors shown were consistent with that of someone

6 under the influence of drugs or alcohol. Deputy Clark placed Ms. Farris under

7 arrest for physical control while under the influence (in violation of RCW §

8 46.61.504) and placed Plaintiff in Deputy Clark’s vehicle.

9 Mr. Starr observed that Ms. Farris had difficulty maintaining her balance and

10 appeared confused and slightly agitated. Mr. Starr also observed that Ms. Farris

11 had a peculiar odor on her breath, but not the normal smell of alcohol.

12 Mr. Trimm observed that as Mr. Dreyer was taking Ms. Farris’ vitals, Ms.

13 Farris was struggling with her balance and needed to use the nearby car to balance

14 herself. Mr. Trimm observed that during the field sobriety tests, Ms. Farris

15 continually failed to follow directions, could not keep her balance, and was

16 swaying from side to side.

17 Deputy Clark requested the assistance of Defendant Loren Culp, Chief of

18 Police for the City of Republic, Washington. Chief Culp was the handler of a drug

19 detection dog named Karma. They went through canine drug detection training

20 together. Karma was assigned to Chief Culp only. Karma and Chief Culp were

21 certified as reliable by the state of Washington as a dual-purpose canine team

22 (narcotics and patrol). Karma was trained and certified in the detection of

23 marijuana, heroin, methamphetamine, cocaine, and

24 methylenedioxymethamphetamine (MDMA). Karma could detect miniscule

25 amounts of these substances.

26 Upon arrival at the scene with Karma, Deputy Clark informed Chief Culp

27 that Ms. Farris was impaired without the odor of intoxicants. Chief Culp deployed

28 Karma on Ms. Farris’ vehicle. Karma “alerted” and gave a “sit response” on the

1 driver’s side of Ms. Farris’ vehicle. Ms. Farris’ vehicle was towed to an impound

2 yard in Republic, Washington. Chief Culp followed the tow truck and secured the

3 car in the impound area. Chief Culp did not search the interior of the vehicle. The

4 Republic Police Department did not have a policy or custom to cross-contaminate

5 vehicles with the odor of a controlled substance.

6 Deputy Clark transported Ms. Farris to the Ferry County Jail and

7 administered Miranda rights. Ms. Farris requested a lawyer. Deputy Clark then

8 walked Ms. Farris into the booking section of the jail to Corrections Officer David

9 Ruiz. Officer Ruiz booked Ms. Farris into the Ferry County Jail.

10 Deputy Clark spoke with Ms. Farris’ lawyer on the phone. Deputy Clark

11 asked Officer Ruiz to place Ms. Farris in the BAC room at the jail. While in the

12 BAC room, Ms. Farris refused to answer questions until her lawyer arrived.

13 Deputy Clark obtained a blood search warrant for Ms. Farris. See ECF No.

14 30-7. Deputy Clark transported Ms. Farris to the Ferry County Memorial Hospital,

15 where her blood was taken. While Deputy Clark waited for paperwork, Ms. Farris

16 stated that she did not want a lawyer anymore and that what she had wanted all

17 along was to prove that she had not been drinking. Deputy Clark transported Ms.

18 Farris back to the Ferry County Jail. Ms. Farris was found to have $4,956.00 on her

19 person. ECF No. 30-5 at 2.

20 On August 19, 2018, Judge Thomas Brown made a preliminary finding of

21 probable cause that the crime of physical control of a vehicle while under the

22 influence was committed. See ECF No. 30-9.

23 On August 20, 2018, the State chose not to seek probable cause, indicating it

24 was waiting on the blood screening toxicology results from the crime lab. ECF No.

25 30-10. Plaintiff was released from custody. Id.

26 In a criminal complaint dated September 5, 2018, Ms. Farris was charged

27 with Driving Under the Influence – Refusal pursuant to RCW § 46.61.502. The

28 charge was later amended to Physical Control-Refusal pursuant to RCW §

1 46.61.504. ECF Nos. 30-13, 30-14. On November 6, 2018, the charge was

2 dismissed without prejudice for the stated reason of “waiting on blood.” ECF No.

3 30-15.

4 The toxicology report for Ms. Farris’ blood analysis was dated March 27,

5 2019 and for alcohol and drugs disclosed results of “none detected.” ECF No. 30-

6 16. No further charges were made against Ms. Farris.

7 Procedural History

8 Plaintiff, through counsel, filed the Complaint in the present action on

9 August 18, 2020. ECF No. 1. Plaintiff alleged violations of her Fourth Amendment

10 rights, malicious prosecution, and Monell liability under 42 U.S.C. § 1983.

11 Plaintiff later filed the Amended Complaint adding state law claims for: false

12 arrest/false imprisonment against Deputy Clark and Ferry County, malicious

13 prosecution against Deputy Clark and Ferry County, and negligence against all

14 defendants. ECF No. 15. The Amended Complaint alleges Plaintiff had only slept a

15 few hours in days when she pulled off the road to sleep. Plaintiff admits she woke

16 from a “dead sleep in a state of confusion,” and it took her “a few minutes to fully

17 wake up” and “find[] her cognition.” ECF No. 15 at 7. Plaintiff claims she became

18 “very agitated,” during her encounter with Deputy Clark because she “knew she

19 was stone-cold sober,” and just “wanted these people to leave her alone.” ECF No.

20 15 at 9. She alleges that the search and seizure of her person, the search of her

21 vehicle, and her prosecution were unlawful under federal and state law. It is

22 alleged that during the canine search of the vehicle, Chief Culp caused Karma to

23 give a false alert after cross contaminating the vehicle by touching his hand to the

24 vehicle after having handled a dog scent toy. ECF No. 15 at 19. Plaintiff alleges

25 the City is liable for creating a “practice . . . where officers intentionally cross-

26 contaminate vehicles to influence a K-9’s search.” ECF No. 15 at 22. Plaintiff

27 claims Ferry County is liable for failing to train Deputy Clark “regarding the

28

1 indicia needed to establish reasonable suspicion to commence a DUI investigation

2 and the proper administration of field sobriety tests.” ECF NO. 15 at 23.

3 Defendants now move, unopposed, for summary judgment on all of

4 Plaintiff’s claims.

5 Legal Standard

6 Summary judgment is appropriate “if the movant shows that there is no

7 genuine dispute as to any material fact and the movant is entitled to judgment as a

8 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless

9 there is sufficient evidence favoring the non-moving party for a jury to return a

10 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,

11 (1986). The moving party has the initial burden of showing the absence of a

12 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

13 If the moving party meets its initial burden, the non-moving party must go beyond

14 the pleadings and “set forth specific facts showing that there is a genuine issue for

15 trial.” Anderson, 477 U.S. at 248.

16 In addition to showing there are no questions of material fact, the moving

17 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of

18 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled

19 to judgment as a matter of law when the non-moving party fails to make a

20 sufficient showing on an essential element of a claim on which the non-moving

21 party has the burden of proof. Celotex, 477 U.S. at 323. When considering a

22 motion for summary judgment, a court may neither weigh the evidence nor assess

23 credibility; instead, “the evidence of the non-movant is to be believed, and all

24 justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

25 A court cannot grant a defendant’s motion for summary judgment solely

26 because the plaintiff failed to respond. Heinemann v. Satterberg, 731 F.3d 914,

27 917-18 (9th Cir. 2013).

28

1 Discussion

2 1. 42 U.S.C. § 1983 Claims against Individual Defendants and Qualified

3 Immunity

4 Plaintiff alleges Deputy Clark and Chief Culp violated her Fourth

5 Amendment rights giving rise to liability under 42 U.S.C. § 1983. To state a claim

6 under 42 U.S.C. § 1983, a plaintiff must show: (1) a violation of a right secured by

7 the Constitution, and laws of the United States and (2) the alleged deprivation was

8 committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42,

9 48 (1988).

10 Individual defendants named in a § 1983 action may raise the defense of

11 qualified immunity. Qualified immunity shields officials from civil liability so long

12 as their conduct “does not violate clearly established statutory or constitutional

13 rights of which a reasonable person would have known.” Mullenix v. Luna, 577

14 U.S. 7, 11 (2015) (quotation omitted). A clearly established right is one that is

15 “sufficiently clear that every reasonable official would have understood that what

16 he is doing violates that right.” Id. (quoting Reichle v. Howards, 566 U.S. 658, 663

17 (2012)). This means that existing precedent must have placed the statutory or

18 constitutional question beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731, 741

19 (2011). This inquiry “must be undertaken in light of the specific context of the

20 case, not as a broad general proposition.” Mullenix, 577 U.S. at 12 (quotation

21 omitted).

22 Thus, the qualified immunity analysis involves two steps. Pearson v.

23 Callahan, 555 U.S. 223, 232 (2009). A district court must determine whether the

24 facts that a plaintiff has alleged or shown make out a violation of a constitutional

25 rights and must decide whether the right at issue was “clearly established” at the

26 time of the defendant’s alleged misconduct. Id. Courts may grant qualified

27 immunity on the ground that a purported right was not “clearly established” by

28 prior case law without resolving the often more difficult question of whether the

1 purported right exists as all. Id. at 236.

2 Plaintiff has the burden to overcome a defendant official’s qualified

3 immunity by showing that those rights were clearly established at the time of the

4 conduct at issue. Davis v. Scherer, 468 U.S. 183, 196 (1984).

5 a) Extension of the Investigative Stop

6 Plaintiff alleges Deputy Clark violated her Fourth Amendment right when

7 she extended the scope of the investigatory stop from “mak[ing] sure Farris was

8 okay” to performing a DUI investigation including field sobriety tests. ECF No. 15

9 at 17.

10 The Fourth Amendment is not a guarantee against all searches and seizures,

11 but only against unreasonable searches and seizures. United States v. Sharpe, 470

12 U.S. 675, 681 (1985) (emphasis in original). The reasonable duration of a traffic

13 stop depends on the stop’s “mission.” Rodriguez v. United States, 575 U.S. 348,

14 354 (2015). Officers need no additional reasonable suspicion to conduct tasks

15 consistent with the stop’s mission and address any related safety issues. Id. at 354–

16 55; United States v. Evans, 786 F.3d 779, 786 (9th Cir. 2015). Police may extend a

17 traffic stop if reasonable suspicion supports the extension. Rodriguez, 575 U.S. at

18 358; Evans, 786 F.3d at 786. “The reasonable-suspicion standard is not a

19 particularly high threshold to reach.” United States v. Valdes-Vega, 738 F.3d 1074,

20 1078 (9th Cir. 2013) (en banc). It “falls considerably short of satisfying a

21 preponderance of the evidence standard,” United States v. Arvizu, 534 U.S. 266,

22 274 (2002), and is “ ‘obviously less’ ” than probable cause, Navarette v.

23 California, 572 U.S. 393, 397 (2014) (citation omitted).

24 The initial investigative stop is not questioned by Plaintiff. While it is not

25 unlawful to sleep in a car, it is unusual to sleep in the driver’s seat slumped over

26 the center console in a parked car on the side of a highway. Deputy Clark was

27 aware that Ms. Farris had been in that condition long enough for a third party to

28 contact authorities and report a female driver slumped over. Ms. Farris did not

1 respond to Deputy Clark’s initial knock on the window to wake her up. After

2 waking and seeing Deputy Clark, Ms. Farris did not attempt to open her window or

3 door. When asked to roll down her window, Ms. Farris did not comply, and she

4 needed assistance opening the car door. Upon initial questioning, Deputy Clark

5 observed that Ms. Farris did not know where she was and did not initially know

6 where she was going. Her pupils were pinpoint, her speech was slow, and she was

7 slow to respond to questions. Even though Deputy Clark did not observe Ms. Farris

8 operate the vehicle or detect an odor of intoxicants (as noted in the Amended

9 Complaint, ECF No. 15 at 17), the totality of the circumstances gave Deputy Clark

10 reasonable suspicion of her physical control of a vehicle while impaired. Plaintiff

11 claims these facts are explained as “symptoms expected from a person abruptly

12 awakened,” ECF No. 15 at 17; however, the question is not whether there may

13 have been an innocent explanation for these facts, but rather whether taken

14 together, they give rise to reasonable suspicion that Ms. Farris was in control of a

15 vehicle while impaired. The Court finds reasonable suspicion supported the

16 extension of the stop. Moreover, a reasonable officer in Deputy Clark’s position

17 could have believed there was reasonable suspicion to extend the stop.

18 Accordingly, Deputy Clark has qualified immunity as to Plaintiff’s claim for

19 unlawful seizure based on the extension of the stop.

20 b) The Arrest

21 The Amended Complaint alleges Deputy Clark violated the Fourth

22 Amendment when she lacked probable cause to arrest. ECF No. 15 at 18.

23 It is well established that “an arrest without probable cause violates the

24 Fourth Amendment and gives rise to a claim for damages under § 1983.” Borunda

25 v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988). An officer who makes an arrest

26 without probable cause, however, may still be entitled to qualified immunity if he

27 reasonably believed there to have been probable cause. See Ramirez v. City of

28 Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009).

1 “Probable cause to arrest exists when officers have knowledge or reasonably

2 trustworthy information sufficient to lead a person of reasonable caution to believe

3 that an offense has been or is being committed by the person being arrested.”

4 United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (citing Beck v. Ohio,

5 379 U.S. 89, 91 (1964)). “The probable-cause standard is incapable of precise

6 definition or quantification into percentages because it deals with probabilities and

7 depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366,

8 371 (2003). Indeed, “probable cause is a fluid concept-turning on the assessment of

9 probabilities in particular factual contexts-not readily, or even usefully, reduced to

10 a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983).

11 In Washington it is a crime to be in physical control of a motor vehicle while

12 under the influence of intoxicating liquor or drugs. Wash. Rev. Code § 46.61.504.

13 Plaintiff cannot demonstrate that Deputy Clark lacked probable cause to arrest her

14 where the unrebutted evidence shows that Deputy Clark’s basis for arrest included:

15 (1) the failure to follow directions/instructions; (2) a lack of awareness and

16 confusion (3) slowed speech and responses; (4) bloodshot and droopy eyelids; (5)

17 unstable balance; and (6) failed horizontal gaze nystagmus, “walk and turn” and

18 “one leg stand” field sobriety tests. The ultimate dismissal of the charge against

19 Plaintiff does not indicate that the arrest was made without probable cause. See,

20 Heath v. Cast, 813 F.2d 254, 260 (9th Cir. 1987). Plaintiff has not come forward

21 with any evidence consistent with the allegations in the Amended Complaint. Even

22 if the Court were to conclude that Deputy Clark did not have probable cause,

23 Deputy Clark would be protected by qualified immunity because a reasonable

24 officer could have believed the arrest was lawful.

25 c) Alleged Search of the Vehicle

26 The Amended Complaint claims Chief Culp and Deputy Clark

27 unconstitutionally searched Plaintiff’s vehicle following her arrest. ECF No. 15 at

28 19-20. The claim appears based on Plaintiff’s claim that the arrest by Deputy Clark

1 was unlawful. Id. As the Court has already determined that the arrest was

2 supported by probable cause, this claim is meritless. Moreover, there is no

3 evidence of record that the vehicle was ever searched either by Chief Culp or

4 Deputy Clark. A canine sniff of the exterior of vehicle parked in a public location

5 after an arrest is not a “search” protected under the Fourth Amendment. See Illinois

6 v. Caballes, 543 U.S. 405, 410 (2005) (“A dog sniff conducted during a

7 concededly lawful traffic stop that reveals no information other than the location of

8 a substance that no individual has any right to possess does not violate the Fourth

9 Amendment.”); United States v. Lingenfelter, 997 F.2d 632 (9th Cir. 1993) (dog

10 sniff of commercial warehouse from public alley did not implicate Fourth

11 Amendment).

12 d) Malicious Prosecution

13 Plaintiff alleges that Deputy Clark provided “false information” to the Ferry

14 County Prosecutor’s Office leading to her prosecution. ECF No. 15 at 21.

15 To prevail on a § 1983 claim of malicious prosecution, a plaintiff “must

16 show that the defendants prosecuted [him] with malice and without probable cause,

17 and that they did so for the purpose of denying [him] equal protection or another

18 specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189

19 (9th Cir. 1995). Malicious prosecution actions are not limited to suits against

20 prosecutors but may be brought against other persons who have wrongfully caused

21 the charges to be filed. Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126–27

22 (9th Cir. 2002). Plaintiff’s § 1983 malicious prosecution claim against Deputy

23 Clark fails because Deputy Clark’s actions were supported by probable cause.

24 2. Monell Claims

25 Plaintiff’s third claim for relief alleges the municipal defendants violated her

26 constitutional rights by (1) the County’s failure to train Deputy Clark; (2) the

27 City’s creation of a practice where officers intentionally and negligently “cross-

28 contaminate vehicles to influence a K-9’s search”; and (3) the City’s creation of a

1 “practice where officers . . . are encouraged to violate citizen’s rights, and destroy

2 their property, in the interest of personal gain and potential forfeiture

3 opportunities.” ECF No. 15 at 22-24.

4 The United States Supreme Court observed that “Congress did not intend

5 municipalities to be held liable unless action pursuant to official municipal policy

6 of some nature caused a constitutional tort.” Monell v. New York City Dep’t. of

7 Soc. Services, 436 U.S. 658, 691 (1978). Thus, a local government unit may not be

8 held responsible for the acts of its employees under a respondeat superior theory of

9 liability. Id. at 691 (“a municipality cannot be held liable solely because it employs

10 a tortfeasor”). Rather, a local government entity may only be held liable if it

11 inflicts the injury of which a plaintiff complains through a governmental policy or

12 custom. Id. at 694; Gibson v. County of Washoe, 290 F.3d 1175, 1185 (9th Cir.

13 2002).

14 To establish municipal liability against the City and County, Plaintiff must

15 allege she: (1) was deprived of a constitutional right; (2) the City and County each

16 had a policy; (3) the policy amounted to deliberate indifference of her

17 constitutional right; and (4) the policy was “the moving force behind the

18 constitutional violation.” See Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.

19 1992) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)); see also

20 Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110–11 (9th Cir. 2001).

21 Absent a formal governmental policy, a plaintiff must show a “longstanding

22 practice or custom which constitutes the standard operating procedure of the local

23 governmental entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting

24 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). Importantly,

25 municipal liability for an “improper custom may not be predicated on isolated or

26 sporadic incidents; it must be founded upon practices of sufficient duration,

27 frequency and consistency that the conduct has become a traditional method of

28 carrying out policy.” Id.; see also Meehan v. Cnty. of Los Angeles, 856 F.2d 102,

1 107 (9th Cir. 1988) (finding two incidents insufficient to establish custom).

2 A policy amounts to deliberate indifference where “the need for more or

3 different action is so obvious, and the inadequacy of the current procedure so likely

4 to result in the violation of constitutional rights, that the policymakers can

5 reasonably be said to have been deliberately indifferent to the need.” Mortimer v.

6 Baca, 594 F.3d 714, 722 (9th Cir. 2010) (citing Oviatt, 954 F.2d at 1477-78). To

7 establish deliberate indifference by a government, “the plaintiff must show that the

8 municipality was on actual or constructive notice that its omission would likely

9 result in a constitutional violation.” Gibson, 290 F.3d at 1186.

10 a) Failure to train

11 Plaintiff contends that the traffic stop in this case evidences that the County

12 failed to sufficiently train Deputy Clark and its deputies “regarding the indicia

13 needed to establish reasonable suspicion to commence a DUI investigation and the

14 proper administration of field sobriety tests.” ECF No. 15 at 23.

15 “A municipality’s culpability for a deprivation of rights is at its most

16 tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S.

17 51, 61 (2011). “[T]here are limited circumstances in which an allegation of a

18 ‘failure to train’ can be the basis for liability under § 1983.” City of Canton, Ohio

19 v. Harris, 489 U.S. 378, 387 (1989). “Only where a municipality’s failure to train

20 its employees in a relevant respect evidences a ‘deliberate indifference’ to the

21 rights of its inhabitants can such a shortcoming be properly thought of as a

22 [municipal] ‘policy or custom’ that is actionable under § 1983.” Id. at 389. In

23 addition, the inadequate training must have “actually caused” the deprivation of

24 rights. Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1159-60 (9th Cir. 2012);

25 Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989). Ordinarily, a

26 “pattern of similar constitutional violations by untrained employees” is necessary

27 to demonstrate deliberate indifference for purposes of failure to train. Connick, 563

28 U.S. at 62. In rare instances, however, deliberate indifference can be inferred from

1 a single incident when “unconstitutional consequences of failing to train” are

2 “patently obvious.” Id. at 64. While deliberate indifference can be inferred from a

3 single incident, “an inadequate training policy itself cannot be inferred from a

4 single incident.” Hyde v. City of Willcox, 23 F.4th 863, 874–75 (9th Cir. 2022).

5 “Otherwise, a plaintiff could effectively shoehorn any single incident with no other

6 facts into a failure-to-train claim against the supervisors and the municipality.” Id.

7 at 875; see Merritt, 875 F.2d at 770 (“Mere proof of a single incident of errant

8 behavior is a clearly insufficient basis for imposing liability on the County.”).

9 Here, the County cannot be held liable where Plaintiff has failed to

10 demonstrate she was deprived of a constitutional right. Bd. of Cnty. Comm’rs of

11 Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997) (holding that a plaintiff

12 show direct causal link between municipal action and deprivation of federal rights

13 in order to hold municipality liable under § 1983). Moreover, even if Plaintiff had

14 established a genuine dispute of material fact so as to preclude summary judgment

15 on her claims against Deputy Clark, Plaintiff has made no attempt to adduce any

16 evidence that would support a claim for Monell liability. Plaintiff’s sole

17 submission, the Amended Complaint, alleges in only the most conclusory fashion

18 that the “County failed to implement a training program sufficient to address the

19 identified deficiencies.” ECF No. 15 at 23. Plaintiff may not overcome summary

20 judgment by relying upon allegations in her own pleading. Plaintiff has not alleged

21 any pattern of Fourth Amendment violations or identified any specific deficiency

22 in the County’s training program. Plaintiff has no proof that any deficiency is the

23 result of deliberate indifference. Accordingly, summary judgment is granted in the

24 County’s favor on Plaintiff’s Monell claim against the County.

25 b) Practice of cross-contamination and violation of rights

26 Plaintiff asserts that Chief Culp, as a City policymaker, (1) “created a

27 practice for Republic’s Police Department where officers intentionally cross-

28 contaminate vehicles to influence a K-9’s search”; (2) “created a practice where

1 Republic’s Police Department negligently cross-contaminate to influence a K-9’s

2 search”; and (3) “created a practice where officers of the department are

3 encouraged to violate a citizen’s rights, and destroy their property, in the interest of

4 personal gain and potential forfeiture opportunities.” ECF No. 15 at 22. Here, there

5 can be no liability under Monell as there is no evidence that the City has a policy or

6 custom that allowed for the existence of unconstitutional conduct by its officers or

7 that that the City has a policy or custom that actually caused the alleged

8 constitutional deprivation. Assuming for the sake of argument that cross-

9 contamination occurred during the deployment of the canine, there is no evidence

10 this was a practice of sufficient duration, frequency and consistency to suggest it

11 was a policy. The City is entitled to summary judgment on Plaintiff’s Monell

12 claims.

13 3. State Law Claims

14 Although the federal claims have been dismissed, the Court retains authority

15 to exercise supplemental jurisdiction over the state law claims where, as here, they

16 derive from “derive from a common nucleus of operative fact” and are “such that a

17 plaintiff would ordinarily be expected to try them all in one judicial proceeding.”

18 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988) (quotation omitted).

19 The outcome of Plaintiff’s state law claims is plain.

20 a) False Arrest/False Imprisonment/Malicious Prosecution

21 First, Plaintiff seeks to hold Deputy Clark and the County vicariously liable

22 for false arrest, false imprisonment, and malicious prosecution. ECF No. 15 at 24-

23 26. Though these are distinct claims, the existence of probable cause is a complete

24 defense to all of them. Hanson v. City of Snohomish, 121 Wash.2d 552, 563–64

25 (1993); Fondren v. Klickitat County, 79 Wash. App. 850, 856 (1995). Because the

26 Court has already found that Deputy Clark arrested Plaintiff and provided

27 information to the prosecutor on the basis of probable cause, Plaintiff fails to state

28 a claim for false arrest, false imprisonment, or malicious prosecution matter of law.

1 b) Negligence

2 Plaintiff also alleges negligence claims against all defendants. ECF No. 15 at

3 27. To prevail on a negligence claim, a plaintiff “must show (1) the existence of a

4 duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the

5 breach as the proximate cause of the injury.” Mancini v. City of Tacoma, 196

6 Wash. 2d 864, 879 (2021). “At common law, every individual owes a duty of

7 reasonable care to refrain from causing foreseeable harm in interactions with

8 others.” Beltran-Serrano v. City of Tacoma, 193 Wash. 2d 537, 550 (2019). “This

9 duty applies in the context of law enforcement and encompasses the duty to refrain

10 from directly causing harm to another through affirmative acts of misfeasance.” Id.

11 Plaintiff alleges three distinct negligence claims. First, as to Deputy Clark,

12 Plaintiff alleges she was negligent in conducting field sobriety tests, failing to

13 provide documentation regarding Plaintiff’s drivers’ license, and documenting that

14 Plaintiff had refused to take a BAC test. To the extent Plaintiff bases her

15 negligence claim on her arrest, the claim cannot survive summary judgment

16 because the arrest was based on probable cause. Scotti v. City of Phoenix, 609 F.

17 App’x 386, 389 (9th Cir. 2015) (independent probable cause negates state law

18 negligence claims). To the extent Plaintiff attempts to state a claim for negligence

19 based on Deputy Clark’s investigation, the claim fails as a matter of law because

20 Washington law immunizes officers for actions taken reasonably within the scope

21 and course of their employment, including investigatory actions that resulted in

22 criminal charges. Staats v. Brown, 139 Wash. 2d 757, 778 (2000). Plaintiff has not

23 alleged that Deputy Clark’s conduct falls outside the course of her employment,

24 nor demonstrated that she acted unreasonably. Plaintiff does not have a viable

25 claim for negligence based on an allegedly faulty investigation.

26 Second, Plaintiff alleges Chief Culp was negligent in handling his canine

27 while performing the vehicle search causing a false alert. ECF No. 15 at 29.

28 Plaintiff has failed to articulate what duty Chief Culp owed to her, how it was

1|| breached, or what injury resulted as a result of the alleged breach. Because Plaintifi

cannot demonstrate that Chief Culp acted negligently, any assertion of vicarious

liability against the City necessarily fails too.

Finally, Plaintiff contends Ferry County negligently failed to train its

5|| deputies. ECF No. 15 at 30. This claim fails because a claim of negligent training

is only actionable if the employee is acting outside the scope of employment.

Anderson v. Soap Lake School Dist., 191 Wash. 2d 343, 361 (2018). Plaintiff

makes no such claims.

9 Defendants are entitled to summary judgment on all state law claims.

10 Accordingly, IT IS HEREBY ORDERED:

11 1. Defendant Loren Culp and Defendant Republic Police Department’s

Motion for Summary Judgment, ECF No. 35, is GRANTED.

13 2. Defendant Christine Clark and Ferry County Sheriff’s Motion for

14| Summary Judgment, ECF No. 28, is GRANTED.

15 The Clerk of the Court is directed to enter this Order, ENTER

16| JUDGMENT in favor Defendants and against Plaintiff, provide copies to counsel

17|| and the pro se Plaintiff, and CLOSE THE FILE.

18 DATED this 9th day of December, 2022.

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20

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Sfoueleyld Ecc voar

bya Sec

24 Stanley A. Bastian

5 Chief United States District Judge

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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY