Johnson v. Clark County Sheriff

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA DAVID A. JOHNSON, CASE NO. C23-5046 BHS Plaintiff, ORDER 9 v. CLARK COUNTY SHERIFF, 11 Defendant.

13 THIS MATTER is before the Court on pro se plaintiff David Johnson’s motion for denial of qualified immunity, Dkt. 42. Johnson’s second amended complaint asserts that Defendants1 violated his constitutional rights when they arrested him after a pursuit in June 2021. Dkt. 27. The Defendants answered Johnson’s operative complaint, Dkts. 33 and 35, and the individual defendants assert that they are entitled to qualified immunity from Johnson’s claims.

21 1 The defendants are Cowlitz County, Clark County, the Clark County Sherriff, Clark County Deputy Sheriff Shane Joachim, the City of Woodland, the Woodland Police Department, Woodland Police Chief James Kelly, and Woodland Police Officer Brent Murray. Dkt. 27.

1 Johnson’s motion asks the Court to determine as a matter of law that Deputy Joachim and Officer Murray are not entitled to qualified immunity. Dkt. 42 at 1. He does not articulate whether he seeks dismissal of the qualified immunity defense under Rule 12 or summary judgment on the defense under Rule 56.

5 Joachim correctly points out that because the defendants have answered, a Rule 12(b)(6) motion is not proper, and that if it is construed as a Rule 12(c) motion for judgment on the pleadings, it must be denied because they have asserted qualified immunity as an affirmative defense and are entitled to all factual inferences as the non- moving party. He similarly points out that there is no evidence supporting Johnson’s motion if it is treated as one for partial summary judgment. Dkt. 43 at 2.

11 Murray construes the motion as one for partial summary judgment. He asserts that Johnson has not and cannot meet his summary judgment burden of demonstrating that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Dkt. 44. Johnson has not filed a Reply to either defendant’s response.

15 Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 18 P. 56(a). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one- sided that one party must prevail as a matter of law.” Id. at 251–52. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

6 Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323–24. There is no requirement that the moving party negate elements of the non-movant’s case. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990). Once the moving party has met its burden, the non- movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson, 477 U.S. at 248.

14 Johnson has not addressed or met this standard. He has not submitted evidence supporting the factual statements in his complaint or in his motion. Even if he had, all the evidence must be viewed in the light most favorable to the non-moving party (Joachim and Murray), not the moving plaintiff. Johnson’s conclusory characterizations are not sufficient, and that conclusion is not altered by the fact his is proceeding pro se.

19 Although the Court must construe Johnson’s pleadings liberally, “[p]ro se litigants must follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 21 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896, 925–28 (9th Cir. 2012); accord Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986) (“[P]ro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record.”).

5 Johnson’s Motion to Deny Qualified Immunity, Dkt 42, is DENIED without prejudice to properly seek summary judgment on Joachim and Murray’s affirmative defenses.

8 IT IS SO ORDERED.

9 Dated this 14th day of September, 2023.

A BENJAMIN H. SETTLE United States District Judge