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Wick v. Missoula Police Officers Campbell

United States District Court, D. Montana, Missoula Division

December 12, 2018

RANDY BRYANT WICK, Plaintiff,
v.
MISSOULA POLICE OFFICERS CAMPBELL, HOUPPERT and MARTINI, Defendants.

          FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch, Judge

         Before 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.

         I. Background

         Wick 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 Constitution.

         Wick's 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.

         Defendants 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.

         II. 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).

         As 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 law”).

         Finally, 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).

         III. Discussion

         On 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.)

         Campbell 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.)

         Houppert 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 ¶¶ 14-15.)

         Campbell 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.

         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 ...


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