George Tillett v. City of Bremerton

FILED
MAR 06 2012
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE A. TILLET, et al., etc. No. 11-35103
Plaintiffs-Appellants, D.C. No. 3:09-CV-05621-RJB
v. MEMORANDUM *
CITY OF BREMERTON, JEFF
Inklebarger, STEVEN M. POLONSKY,
HAROLD P. WHATLEY AND KEITH A.
SARGENT, et al.
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted February 10, 2012
Seattle, Washington
Before: SCHROEDER, ALARCÓN, GOULD, Circuit Judges.
George and Grace Tillett (“Appellants”) filed this action based on injuries
George Tillett received when he was forcibly detained during the execution of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
warrant to search his son’s residence and seize evidence of a violation of a
Washington state law prohibiting the distribution of a controlled substance. In
their complaint, Appellants alleged that they were entitled to damages for violation
of state and federal law by the named defendants.
Appellees filed a motion for summary judgment in which they alleged that
Appellants could not demonstrate that there was a genuine issue of fact in dispute
about whether the named defendants had violated state or federal law. We affirm
the order granting Appellees’ motion for summary judgment because the record
shows that in their opposition, Appellants failed to rebut Appellees’ evidence that
any injury suffered by George Tillett was caused by his resistance to being
restrained to protect officers engaged in executing a valid search warrant.
I
In support of their motion for summary judgment, the Defendants presented
the following facts. Police officers of the City of Bremerton, acting pursuant to a
search warrant, entered the residence owned by the Appellants’ son. They
announced their presence by shouting “Police Search Warrant.” Officer Harold P.
Whatley went to the bottom of a stairway where he observed a closed door.
George Tillett opened the door and entered the area where Officer Whatley was
standing. George Tillett was wearing a bulky coat capable of concealing a weapon.
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Officer Whatley yelled at him “Police, get on the ground.” George Tillett
responded, “No.” Instead, he attempted to return to the adjoining room. Officer
Whatley reached out to grab his overcoat to detain him. George Tillett resisted and
fell to a sitting position as he backed away. Officer Whatley grabbed George
Tillett’s coat and placed him on his stomach. George Tillett placed his left arm
under his body to prevent Officer Whatley and Officer Jeff Inklebarger from
placing hand restraints on him. The officers successfully placed hand restraints on
his wrists. The restraints were removed within five minutes.
Officer Inklebarger noticed that George Tillett had a small laceration on his
right wrist. Officer Inklebarger checked the restraints to ensure that they would not
contact the laceration. He also double locked the restraints so that they would not
tighten.
The officers asked George Tillett if he wanted to receive medical aid. He
refused. The officers asked members of the Bremerton Fire Department to
evaluate the laceration on George Tillett’s wrist. Bremerton Fire Department
personnel examined George Tillett’s wrist. They left when George Tillett did not
request any further medical examination or treatment.
In their response to the motion for summary judgment, Appellants did not
challenge Appellees’ evidence that George Tillett refused to obey
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Officer Whatley’s command to get on the floor and placed his arm under his body
to avoid having restraints placed on his wrists. Accordingly, we must decide
whether the record shows there are genuine issues of fact in dispute regarding the
liability of the named defendants for the injury suffered by George Tillett when the
officers placed restraints on his wrists.
II
We review de novo Appellants’ contention that the district court erred in
granting Appellees’ motion for summary judgment. Bravo v. City of Santa Maria,
665 F.3d 1076, 1083 (9th Cir. 2011).
A
The dispositive issue in this matter is whether Officer Whatley and
Officer Inklebarger are liable for using excessive force in restraining George Tillett
when he resisted their attempts to place hand restraints on him during the execution
of a valid search warrant.
Appellants appear to contend that the officers violated 42 U.S.C. § 1983 by
failing to enter the residence through the garage instead of the front door to restrain
George Tillett, if they believed he was a danger to their safety. There is no
evidence in the record of any conduct by George Tillett, while he stood in the
garage, that demonstrated that he would resist being restrained or that he might be
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armed. Instead, the undisputed evidence shows that he did not pose a danger until
after he entered the house from the garage wearing a coat which could have
concealed a weapon, while the officers conducted their search pursuant to a valid
warrant. He refused Officer Whatley’s command that he lie down on the floor and
attempted to enter another part of the residence.
Although set forth in Appellees’ answering brief, Appellants failed to cite or
attempt to distinguish the applicability of the Supreme Court’s decisions in
Michigan v. Summers, 452 U.S. 692 (1981) and Muehler v. Mena, 544 U.S. 93(2005). In Summers, the Court recognized that the execution of a warrant to search
for drugs “may give rise to sudden violence or frantic efforts to conceal or destroy
evidence,” id. at 702, and held that officers executing a search warrant for
contraband may use reasonable force to detain persons within a residence to
prevent flight and “minimiz[e] the risk of harm to the officers.” Id. In Muehler,
the Court held that placing the occupant of a residence in handcuffs at gun point,
and detaining her for three hours while executing a search warrant, was a
reasonable use of force and represented a marginal intrusion of her constitutional
rights. 544 U.S. at 98–99.
Here, George Tillett refused to follow the command of Officer Whatley, and
would not have been injured if he had not placed his arm under his body to avoid
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the officers’ efforts to place hand restraints on him. He was only restrained for five
minutes. George Tillett declined the offer of medical assistance made by officers
on the scene. At the officers’ request, the Bremerton Fire Department (“BFD”)
conducted a medical evaluation of George Tillett. The BFD cleared Tillett
medically.
Under the totality of their circumstances, none of the named defendants
acted unreasonably in detaining George Tillett or in placing hand restraints on him
after he resisted their efforts. See id. at 98–100. The district court did not err in
holding that the Officers were entitled to qualified immunity.
B
The district court also did not err in determining that the City of Bremerton
was not liable for any alleged constitutional violations under § 1983. To establish
municipal liability under § 1983, a plaintiff must establish that he was deprived of
a constitutional right and that “the constitutional violation was the product of a
policy, practice, or custom adopted and promulgated by the city’s officials.”
Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (citing Monell v.
Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690–91 (1978)). Appellants have
failed to demonstrate that George Tillett’s constitutional rights were violated or
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that the City had a policy or custom that resulted in the alleged violation of George
Tillett’s constitutional rights.
Appellants have presented no evidence supporting their claim that either the
City or the officers ignored the procedures for executing a search warrant, or
otherwise followed a practice that was so widespread as to have the force of law.
See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (holding that “an
act performed [by a municipal employee] pursuant to a ‘custom’ that has not been
formally approved by an appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the relevant practice is so widespread as
to have the force of law”). Absent competent evidence demonstrating that the City
had a policy, practice, or custom that caused a constitutional injury, the City is not
liable for monetary damages in a § 1983 suit. See Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993) (“a
municipality . . . cannot be held liable [under § 1983] unless a municipal policy or
custom caused the constitutional injury”).
C
The district court did not err in dismissing Appellants’ state law tort claim of
outrage. Washington’s tort of outrage requires proof of behavior “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
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decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Grimsby v. Samson, 530 P.2d 291, 295 (Wash. 1975) (citation
omitted). The record supports the district court’s finding that a reasonable person
could not view the conduct of the defendant police officers as extreme and
outrageous. Appellants presented no evidence demonstrating that any of the police
officers used force beyond what was reasonable under the circumstances.
D
The district court did not err in dismissing Grace Tillett’s loss of consortium
claim. To prove loss of consortium, Grace Tillett was required to demonstrate that
there is a genuine issue of material fact as to whether George Tillett was injured by
the officers. See Lundgren v. Whitney’s, Inc., 614 P.2d 1272, 1275 (Wash. 1980)
(holding that a wife may bring a cause of action for damages for the loss of her
husband’s consortium due to the negligence of a third party). Grace Tillett has
died since this litigation began. We need not decide whether the decedent’s
personal representative may press a claim for loss of consortium under
Washington’s survival statute, R.C.W. 4.20.046, because even if such a claim
survives Grace Tillett’s death, it fails on the merits. Grace Tillett did not present
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any evidence to support her claim that the officers acted negligently in placing
George Tillett in hand restraints to ensure their safety.
AFFIRMED.
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