Smithson v. Hammond

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UNITED STATES DISTRICT COURT

6 WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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DANIEL B. SMITHSON, Case No. 3:22-cv-05029-TMC

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Plaintiff, ORDER GRANTING IN PART AND

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DENYING IN PART DEFENDANTS’

v. MOTION FOR SUMMARY JUDGMENT

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DARYL JONATHAN HAMMOND, SARAH

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LEWIS, AMBER SMITH, RICHARD

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HENDRICKS, ALEX MCBAIN

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Defendants.

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ORDER

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Before the Court is Defendants’ motion for summary judgment. Dkt. 22. Plaintiff Daniel

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B. Smithson’s (“Smithson’s”) complaint asserts claims under 42 U.S.C. § 1983 for excessive

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force under the Fourth and Fourteenth Amendments; cruel and unusual punishment under the

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Eighth and Fourteenth Amendments; arrest and imprisonment without a hearing under the

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Fourth, Fifth, Eighth, and Fourteenth Amendments; and unconstitutional policy, practice, or

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custom under the Fourth, Fifth, Eighth, and Fourteenth Amendments. Dkt. 1. He also asserts one

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claim for failure to provide reasonable accommodations under the Americans with Disabilities

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Act. Id. Defendants’ motion for summary judgment (Dkt. 22) moves for dismissal of all of

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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

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assault and unlawful possession of a controlled substance.” Dkt. 23 ¶ 4. After his release from

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prison in July 2018, Smithson’s sentence required him to serve eighteen months of community

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custody with the Washington State Department of Corrections (“DOC”) and report to

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Community Corrections Officer (“CCO”) Jonathan Hammond, one of the defendants in this case.

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Dkt. 23-1 at 7. After his release from prison, Smithson agreed to certain conditions of

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community custody imposed by DOC, including that he would not “threaten or exhibit assaultive

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behavior toward any Department employee.” Dkt. 23-3 at 2.

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Smithson’s claims revolve around an altercation and arrest on January 22, 2019,

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involving Hammond and several other Community Corrections Officers that occurred while

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Smithson was in the bathroom of a DOC field office to provide a urinalysis sample for drug

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testing (“UA”). Dkt. 1 at 4; Dkt. 22 at 4. During the incident, Smithson broke bones in his right

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hand. Dkt. 26 at 4; Dkt. 22 at 5. The parties dispute the events that resulted in his injuries.

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In a sworn declaration, Smithson alleges that, after he reached towards Hammond to

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receive a UA cup, Hammond “suddenly seized both [his] shoulders, . . . [and] pushed [Smithson]

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against the wall next to the toilet.” Dkt. 27 ¶ 14. Then, according to Smithson, Hammond

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punched him in the face and ordered him to get on the ground and put his hands behind his back.

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Id. ¶ 15. Smithson asserts he complied with Hammond’s orders. Id. Once Smithson was on the

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ground, Hammond began trying to handcuff him, at which point Hammond “gripped two fingers

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on [Smithson’s] right hand with one of his hands and the other two fingers on [Smithson’s] right

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hand with his other hand, forcibly spreading them until a bone snapped.” Id. Smithson alleges he

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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.

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Id. Following Smithson’s arrest, he “was charged with violations of his community custody

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conditions” for his “assaultive behavior” during the incident. Dkt. 22 at 5 (citing Dkt. 23-6).

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DOC, which has authority to adjudicate violations of “condition[s] or requirement[s] of

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community custody,” RCW 9.94A.737(4), held an administrative hearing regarding the charge

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on January 31, 2019. Dkt. 23-7. The DOC hearing officer issued a written decision, submitted

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into evidence by Defendants, which found Smithson guilty of “assaultive behavior” and

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sanctioned him to thirty days in prison. Id. at 3. A section of the decision entitled “Summary of

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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 –

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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

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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

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nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v.

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Cotton, 572 U.S. 650, 651 (2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 255 (1986)). Defendant argues that the Court must give preclusive effect to the DOC

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hearing officer’s decision and treat certain facts he allegedly found to be true as established in

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this case. Specifically, in regard to Smithson’s excessive force claims, Defendants argue that

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Smithson is estopped from asserting facts inconsistent with the hearing officer’s determination

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that he “engaged in assaultive behavior towards CCO Hammond” (Dkt. 22 at 9) and that

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Smithson engaged in this behavior “during the incident in which his hand was broken,” Id. at 10.

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They also argue that Smithson is estopped from alleging there was no probable cause for his

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1 The hearing officer’s decision is handwritten, and some parts of his writing are difficult to

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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

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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

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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

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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.

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1 B. Summary Judgment

1. Summary Judgment Standard

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“The court shall grant summary judgment if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving

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party fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).

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A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

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1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

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The evidence relied upon by the nonmoving party must be able to be “presented in a form

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that would be admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). “An affidavit or declaration

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used to support or oppose a motion must be made on personal knowledge, set out facts that

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would be admissible in evidence, and show that the affiant or declarant is competent to testify on

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the matters stated.” Fed. R. Civ. P. 56(c)(4); see also Fed. R. Ev. 602 (“A witness may testify to

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a matter only if evidence is introduced sufficient to support a finding that the witness has

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personal knowledge of the matter. Evidence to prove personal knowledge may consist of the

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witness’s own testimony.”). Conclusory, nonspecific statements in affidavits are not sufficient,

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and “missing facts” will not be “presume[d].” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889

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(1990). However, as stated, “‘[t]he evidence of the nonmovant is to be believed, and all

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justifiable inferences are to be drawn in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651

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(2014) (per curiam) (quoting Anderson, 477 U.S. at 255). Consequently, “a District Court must

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resolve any factual issues of controversy in favor of the non-moving party only in the sense that,

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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

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