United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch, Judge
the Court is Defendant Police Officers Robert Campbell,
Mar'Kee Houppert and John Martini's Fed.R.Civ.P. 56
motion for summary judgment requesting the Court dismiss this
action. Plaintiff Randy Wick, appearing pro se, has not filed
a brief in response to Defendants' motion. For the
reasons discussed, the Court recommends the motion be granted
and this action be dismissed.
states that Defendant City of Missoula Police Officers
Campbell, Houppert, and Martini arrested him in Missoula,
Montana on January 24, 2015. He alleges the Officers first
discharged a taser on his stomach and left thigh, and he fell
face down on the sidewalk and against a wall. Then Defendant
Campbell allegedly discharged his taser a second time on
Wick's back and right calf. Wick further alleges
Defendants Houppert and Martini had their knees on his back,
and that they pulled his arms causing injury to both of his
shoulders and back. Wick alleges Defendants' conduct
violated his rights protected under the United States
claims are cognizable under 42 U.S.C. § 1983. Therefore,
his allegations invoke the Court's federal question
jurisdiction under 28 U.S.C. § 1331.
move for summary judgment dismissing Wick's claims of
excessive force. They argue, in part, that the doctrine of
qualified immunity protects them from liability under the
events and circumstances surrounding Wick's arrest. For
the reasons discussed, the Court agrees.
Applicable Law - Summary Judgment Standards
Federal Rule of Civil Procedure 56(a) entitles a party to
summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In deciding a
motion for summary judgment, the Court views the evidence in
the light most favorable to the non-moving party and draws
all justifiable inferences in the non-moving party's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Betz v. Trainer Wortham & Co.,
Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).
noted, Wick did not file a brief in opposition to
Defendants' motion for summary judgment, and the time for
doing so has passed. Nonetheless, the Ninth Circuit has made
clear that a district court may not grant “summary
judgment simply because a party fails to file an opposition
or violates a local rule, ” and the court must
“analyze the record to determine whether any disputed
material fact [is] present.” Ahanchian v. Xenon
Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.
2010). See also Martinez v. Stanford, 323 F.3d 1178,
1182 (9th Cir. 2003) (explaining that “a
nonmoving party's failure to comply with local rules does
not excuse the moving party's affirmative duty under Rule
56 to demonstrate its entitlement to judgment as a matter of
because Wick is proceeding pro se the Court must construe his
documents liberally and give them “the benefit of any
doubt” with respect to Defendants' summary judgment
motion. Frost v. Symington, 197 F.3d 348, 352
(9th Cir. 1999). See also Erickson v.
Pardus 551 U.S. 89, 94 (2007).
January 24, 2015, Officer Campbell was on duty while at the
Oxford Cafe in Missoula, Montana. He was called outside the
cafe where he observed Wick threatening two individuals with
a pocket knife, yelling profanities at the two men, and
demanding that they repay money to him. (Doc. 31-1 at ¶
5.) When Campbell identified himself as a police officer,
Wick put the pocket knife away and started walking away.
(Id. at ¶ 7.) Campbell directed Wick to stop,
and to keep his hands out, but Wick refused. Wick told
Campbell “he was not going to do shit”, and kept
walking away. (Id. at ¶ 8.)
pursued Wick and ordered him to stop. Campbell displayed his
taser to Wick, and showed a “warning arc.” (Doc.
31-1 at ¶ 9.) Wick stopped with his back against a wall.
Campbell told Wick he was under arrest, directed him to put
his hands behind his back, and warned Wick that if he failed
to comply Campbell would use his taser on Wick.
(Id.) Wick did not comply with Campbell's
instructions. Campbell states that because he knew Wick had a
knife, and because Wick refused to obey his commands, he
decided to deploy his taser probes to Wick's left torso.
He did so, and Wick fell to the ground. (Doc. 31-1 at ¶
10.) The taser deployed for a five-second duration.
(Id. at ¶ 12.)
and Martini were on the scene to assist Campbell. Martini
observed Wick screaming profanities, being uncooperative and
belligerent towards Campbell, and refusing to comply with
Campbell's commands. (Doc. 31-2 at ¶ 3.) After
Campbell deployed his taser, Houppert and Martini attempted
to arrest Wick and put him in handcuffs, but Wick continued
to struggle and resist their efforts. (Doc. 31-1 at ¶
13.) The officers commanded Wick to comply with their
instructions to submit to the handcuffs and his arrest, and
they warned him of consequences if he failed to comply and
continued to resist their efforts. (Doc. 31-1 at ¶¶
knew Wick was still in possession of the pocket knife, and he
states he was concerned the taser probes from the initial
discharge of the taser may have disconnected because the
probes were underneath Wick and against the sidewalk. (Doc.
31-1 at ¶¶ 14-15.) Therefore, Campbell discharged
his taser a second time on Wick's calf. (Doc. 31-1 at
¶ 15.) The second discharge of the taser was 19 seconds
after the first discharge, and it lasted 5 seconds. (Doc.
31-1 at ¶ 14.) After the second discharge the officers
were then able to get the handcuffs on Wick.
informed Martini that he had back problems with surgical
hardware in place. Therefore, Martini was careful helping get
Wick up off the ground. (Doc. 31-2 at ¶ 6.) Martini
asked Wick if he was in pain, and Wick told him he was not.
(Id.) Wick never complained to either Martini or
Houppert of any injury ...