# Nelson v. Thurston County > District Court, W.D. Washington · July 7, 2020 URL: https://www.frixlaw.com/law-library/cases/10701573 ## Case - **Court:** District Court, W.D. Washington - **Decided:** July 7, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10701573 ## Opinion text 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 JOSEPH A. NELSON, individually and CASE NO. 3:18-cv-05184-RBL 9 as Personal Representative of the ESTATE OF JOEL A. NELSON, and its ORDER ON DEFENDANT SNAZA’S 10 statutory beneficiaries, MOTION FOR RECONSIDERATION 11 Plaintiff, v. 12 THURSTON COUNTY, a Washington 13 municipality; RODNEY T. DITRICH, individually; JOHN D. SNAZA, 14 individually, and DOES 1 through 15, individually, 15 Defendant. 16 17 THIS MATTTER is before the Court on Defendant John D. Snaza’s Motion for 18 Reconsideration of the Court’s June 1, 2020 Order Denying Summary Judgment In Part. Dkt. 19 #157. That Order was in response to a mandate from the Ninth Circuit to “undertake the requisite 20 factual examination of the allegations against” Snaza for purposes of applying qualified 21 immunity. DKt. # 155. The Court dismissed Nelson’s Fourth Amendment § 1983 claim against 22 Snaza but held that disputes of fact precluded dismissing his due process claim. Dkt. # 157 at 23 5-6. Snaza now challenges that conclusion. 24 1 Under Local Rule 7(h)(1), motions for reconsideration are disfavored, and will ordinarily 2 be denied unless there is a showing of (a) manifest error in the ruling, or (b) facts or legal 3 authority which could not have been brought to the attention of the court earlier, through 4 reasonable diligence. The term “manifest error” is “an error that is plain and indisputable, and 5 that amounts to a complete disregard of the controlling law or the credible evidence in the 6 record.” Black’s Law Dictionary 622 (9th ed. 2009). 7 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 8 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 9 877, 890 (9th Cir. 2000). “[A] motion for reconsideration should not be granted, absent highly 10 unusual circumstances, unless the district court is presented with newly discovered evidence, 11 committed clear error, or if there is an intervening change in the controlling law.” Marlyn 12 Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). 13 Neither the Local Civil Rules nor the Federal Rule of Civil Procedure, which allow for a 14 motion for reconsideration, is intended to provide litigants with a second bite at the apple. A 15 motion for reconsideration should not be used to ask a court to rethink what the court had already 16 thought through—rightly or wrongly. Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 17 (D. Ariz. 1995). Mere disagreement with a previous order is an insufficient basis for 18 reconsideration, and reconsideration may not be based on evidence and legal arguments that 19 could have been presented at the time of the challenged decision. Haw. Stevedores, Inc. v. HT & 20 T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw. 2005). “Whether or not to grant reconsideration is 21 committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes & Bands 22 of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). 23 24 1 First, Snaza argues that the Court erred in concluding that disputes of fact preclude 2 summary judgment on Nelson’s due process claim because there is no evidence of Snaza 3 conspiring to cover up Ditrich’s shooting of Joel Nelson. Second, Snaza contends that Nelson 4 failed to show that his due process claim is based on a clearly established right, and, 5 consequently, the Court should have determined that Snaza has qualified immunity. 6 The Court will not reconsider its factual conclusion that the evidence does not support 7 summary judgment. Nelson’s theory of the case is that Ditrich fought with Joel Nelson at the front of 8 the patrol vehicle and shot Nelson while he was kneeling. Summary Judgment Order, Dkt. # 109, at 9 4-5. The Court doubts this version of events but denied Ditrich’s motion for summary judgment 10 based mostly on one ear-witness’s account. Id. at 5. The Court therefore assessed the due process claim against Snaza under the assumption that a jury would believe Nelson’s version of events. 11 Although he is unclear about timing, Snaza was present at the scene of the incident, which 12 occurred around 4:00 PM on January 5, 2016. Snaza Dep., Dkt. # 70, Ex. 6, at 121. According to the 13 Critical Incident Investigation Plan (CIIP), he was also the “Incident Commander for the duration of 14 the incident and activation” of the investigation team and his agency was responsible for preserving 15 the scene. CIIP, Dkt. # 53, Ex. 20, at 7, 8. 16 Despite his presence at the scene and duties under the CIIP, Snaza insists he had no 17 involvement in the investigation, which was performed by the Lewis County Sheriff’s Department 18 (Snaza’s brother happens to be the sheriff of Lewis County). Snaza Dec., Dkt. # 50, at 1-2. Detective 19 Kevin Engelbertson was in charge of the investigation. Engelbertson Dep., Dkt. # 49, Ex.1, at 33. His 20 report indicates that he photographed the scene, including the inside of Ditrich’s vehicle, but there is 21 no mention of photographing or preserving blood, gunshot residue, or similar evidence for testing. 22 Engelbertson Report, Dkt. # 53, Ex. 31, at 16. The photos of Ditrich’s vehicle that have been 23 24 1 produced to this Court amount to six blurry images that are almost indecipherable. Dkt. # 53, Exs. 4 2 & 6. 3 Detective Brad Johansson of Grays Harbor assisted Engelbertson in his investigation. 4 Johansson Report, Dkt. # 53, Ex. 7. His report notes evidence of a struggle on the hood of the 5 vehicle, including indentations that matched Ditrich’s flashlight. Id. at 6-7. He did not, however, locate any blood in the front of the vehicle or bullet holes. Id. at 7. The investigation was completed 6 that evening, Engelbertson Dep. at 124, and Ditrich’s vehicle was towed to Thurston County patrol. 7 Klene Report, Dkt. # 53-23, at 2. At some point, Lewis County presented the results of its 8 investigation to Snaza, among others. Snaza Dep., Dt. # 53, Ex. 1, at 44. 9 About a week after the incident, the Thurston County Sheriff’s Office had a company 10 perform an estimate on cleaning Ditrich’s vehicle, noting that it had “fine blood splatter on the 11 interior.” Newby Email, Dkt. # 53, Ex. 10. The vehicle had been cleaned by January 21, Dkt. # 53, 12 Ex. 11; repaired by March 22, Dkt. # 53, Ex. 12; and sold by September, Dkt. # 53, Ex. 15. With 13 respect to disposing of the vehicle, Snaza testified that he “made a choice to get rid of a piece of 14 equipment after evidence was obtained from the vehicle” because he did not want it going back into 15 his fleet. Snaza Dep., Dt. # 53, Ex. 1, at 73. 16 On summary judgment, the Court must view the evidence in the light most favorable to the 17 non-moving party and draw all reasonable inferences in their favor. See Matsushita Elec. Indus. Co. 18 v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Based on this evidence, and assuming Joel 19 Nelson was initially shot while kneeling in front of Ditrich’s vehicle, a jury could reasonably 20 infer that there was some deliberate effort to cover up the incident. Indeed, pure incompetence 21 would be an unlikely explanation for such a glaringly inadequate investigation of a heinous act 22 by the police. If a cover up took place, Snaza’s presence and responsibilities at the scene, 23 knowledge of the investigation’s findings, and decision to nonetheless promptly dispose of 24 1 Ditrich’s vehicle could support his deliberate involvement. In short, the factual relationship 2 between Nelson’s theory of the shooting and his due process claim precludes summary judgment 3 on the latter. 4 Snaza’s legal argument regarding qualified immunity has more merit but is a complete 5 departure from the arguments in his original motion for summary judgment. That motion 6 contained no legal analysis of Nelson’s due process claim, which Snaza incorrectly viewed as an 7 extension of Nelson’s Fourth Amendment excessive force claim: 8 Here Plaintiff asserts claims under § 1983 on two bases: the Fourth Amendment (unreasonable search and seizure) and the Fourteenth Amendment (deprivation of 9 property rights without due process of law). However, the Supreme Court has made clear that “all claims that law enforcement officers have used excessive 10 force – deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its 11 ‘reasonableness’ standard, rather than a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 12 (1989); (citing Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)); see also Armendariz v. Penman, 75 F.3d 1311, 1319-20 (9th Cir. 1996). 13 The Fourteenth Amendment due process clause is only implicated in situations where an unreasonable use of force by an officer “shocks the conscience” because 14 it was done “with the purpose to harm a civilian, unrelated to the legitimate law enforcement objects of arrest, self-defense, or the defense of others.” A.D. v. State 15 of Cal. Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013). . . . Plaintiff’s Fourteenth Amendment due process claim fails, because a rational jury could only 16 find that all use of force by Deputy Ditrich was related to a law enforcement purpose. 17 Snaza MSJ, Dkt. # 34, at 9. When Snaza addressed qualified immunity later in his motion, he 18 discussed only the Fourth Amendment claim and Snaza’s potential liability for Ditrich’s 19 violation. Id. at 16-18. He ignored Nelson’s due process claim, which arose from the alleged 20 effort to cover up evidence of the shooting. 21 After misconstruing and ignoring Nelson’s due process claim in his original motion, 22 Snaza cannot now obtain reconsideration based on a set of arguments that he could have made in 23 the first place but did not. Although Snaza points out that it is the plaintiff’s burden to prove that 24 1 a right is “clearly established” for qualified immunity purposes, the defendant must at least raise 2 the defense of qualified immunity for the claim in question. See LSO, Ltd. v. Stroh, 205 F.3d 3 1146, 1157 (9th Cir. 2000). Here, Snaza never properly identified Nelson’s due process claim in 4 his motion so Nelson’s burden never arose. See Order, Dkt. # 157, at 157 (“[N]either party 5 analyzes the legal viability of Nelson’s claim.”). The Court will not grant qualified immunity now 6 that Snaza has addressed Nelson’s due process claim properly for the first time on a motion for 7 reconsideration. 8 If Snaza wishes to attack the legal sufficiency of Nelson’s § 1983 due process claim he may 9 do so in a new motion. Nelson’s claim is vague, but he alleges a “conspiracy and efforts to deprive the Estate of Joel A. Nelson of its property rights without due process of law,” with the property 10 rights being the causes of action related to Joel Nelson’s death. Complaint, Dkt. # 1, at 9. This theory 11 and the fact supporting it align with the constitutional right to meaningful access to the courts, which 12 is protected by the First and Fourteenth Amendments. Delew v. Wagner, 143 F.3d 1219, 1222 (9th 13 Cir. 1998) (claim arising from police coverup of evidence regarding vehicular death); Harrell v. 14 Cook, 169 F.3d 428, 432 (7th Cir. 1999) (claim arising from police mishandling of evidence). 15 Snaza correctly points out that, under Ninth Circuit precedent, such claims do not accrue until 16 the plaintiff has actually lost in court on the underlying wrongful death claim. Delew, 143 F.3d at 17 1223; see also Roberts v. KVSP Investigation Servs. Unit, No. 119CV01055SABPC, 2019 WL 18 4054020, at *3 (E.D. Cal. Aug. 28, 2019), report and recommendation adopted, No. 19 119CV01055AWISABPC, 2019 WL 6307654 (E.D. Cal. Nov. 25, 2019) (“[C]ourts find that a cover- 20 up claim is premature when the plaintiff’s action seeking redress for the underlying violations 21 remains pending.”). This issue, as well as the issue of whether Nelson has otherwise alleged a 22 violation of a clearly established due process right, warrant full briefing by the parties and should not 23 be addressed for the first time in a motion for reconsideration. Snaza’s Motion is DENIED. 24 1 IT IS SO ORDERED. 2 3 Dated this 7th day of July, 2020. 4 A 5 Ronald B. Leighton 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10701573. Public record. Not legal advice.