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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICKEY A. BEAVER,

Plaintiff,

v.

CITY OF FEDERAL WAY, et al.,

Defendants.

CASE NO. C05-1938-MJP-JPD

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff is a state prisoner who is currently confined at the Western State Hospital at

Steilacoom, Washington. He brings this action under 42 U.S.C. § 1983 seeking monetary damages

for alleged violations of his constitutional rights during his arrest for residential burglary in Federal

Way, Washington. Plaintiff names two Federal Way Police officers and the City of Federal Way as

defendants in this action. Defendants have filed a motion for summary judgment (Dkt. #21), to

which plaintiff has filed a response. (Dkt. #26). Having considered the parties’ briefs, and the

balance of the record, the court concludes that defendants’ motion for summary judgment should be

granted in part and denied in part.

FACTUAL BACKGROUND

On August 27, 2004, Federal Way Police officers Doug Laird and Heather Castro were

dispatched to investigate a report of residential burglary. The residents of the house had seen a man

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 The Taser stun gun has been described as follows: “The taser . . . is a device which fires

two darts attached by wires. When the darts are stuck into a subject and a button is depressed on the

taser, the darts transmit a 50,000 volt charge of a low amperage. This charge immobilizes most of

the muscles of the subject usually causing her to collapse to the ground.” McKenzie v. City of

Milpitas, 1992 WL 19813 at *1 (9th Cir. 1992).

REPORT AND RECOMMENDATION

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– later identified as plaintiff – pushing a shopping cart on the sidewalk in front of the house. (Dkt.

#22, Ex. C). Later that day, when they saw the same shopping cart in their driveway, they suspected

something was wrong. (Id.) Looking around the outside of the house, they discovered plaintiff

emerging from a window. When they confronted plaintiff, he took off running, and the residents

called 911. (Id.) 

Officer Laird arrived on the scene and recognized plaintiff as someone he had encountered

before. (Dkt. #22, Ex. A). It appeared to Officer Laird that plaintiff was “under the influence”

because plaintiff was sweating and his veins were bulging. (Id.) Officer Laird described plaintiff as

being approximately six feet tall, weighing at least 300 pounds, and having a muscular build. (Id.) 

However, an exhibit provided by plaintiff lists his height as 5' 11" and his weight as 220 pounds, at

the time of his arrest. (Dkt. #26, Ex. B). 

Officer Laird ordered plaintiff to the ground but plaintiff ignored him and continued to run

away. (Dkt. #22, Ex. A at 1). Officer Laird fired his Taser stun gun to stop plaintiff.1

 (Id.) The

darts of the Taser struck plaintiff in his right shoulder and lower back, causing him to fall to the

ground. Officer Castro arrived on the scene approximately 30 seconds after plaintiff fell. (Doc. #23,

Ex. A at 1). 

Plaintiff attempted to get up. Officer Laird fired the Taser again. (Dkt. #22, Ex. A at 1).

Plaintiff fell onto his back. Officer Laird told plaintiff to roll over onto his belly. (Id.) Officer

Castro apparently issued a conflicting order to plaintiff, telling him to lay on his back. (Doc. #23,

Ex. A at 1). Plaintiff rolled over on his side and attempted to get up again, and Officer Laird fired

the Taser a third time. (Dkt. #22, Ex. A at 1). Plaintiff again fell to the ground but then would not

move his hands out to the side, so Officer Laird fired the Taser again. Again, plaintiff tried to rise

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REPORT AND RECOMMENDATION

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and Officer Laird fired the Taser a fifth time. Plaintiff remained on the ground but to get plaintiff to

place his hands in the proper position, Officer Laird had to fire the Taser again two or three times. 

(Id.) Finally, Officer Castro was able to handcuff plaintiff and Officer Laird did not use the Taser

again. Plaintiff sustained a cut to his mouth and swelling over his eye when he fell after the initial

firing of the Taser. (Id. at 2). 

Officer Castro checked plaintiff for weapons, apparently found none, and then transported

plaintiff to the hospital. He was found to have minor injuries with no broken bones. Plaintiff tested

positive for alcohol, marijuana and cocaine. (Dkt. #23, Ex. A at 2). Following his medical

examination, Officer Castro transported plaintiff to the King County Regional Justice Center where

he was booked on several charges. (Id.)

On January 31, 2006, plaintiff filed the instant civil rights action under 28 U.S.C. § 1983. 

(Dkt. #8). Defendants filed their answer on March 31, 2006 (Dkt. #16), followed by a motion for

summary judgment on July 10, 2006. (Dkt. #21). Plaintiff filed an opposition on July 21, 2006

(Dkt. #26) and defendants filed a reply on August 4, 2006 (Dkt. #27). The matter is now ready for

review. 

DISCUSSION

Plaintiff alleges in his civil rights complaint that Officer Laird used excessive force in

arresting him in violation of the Fourth Amendment. (Dkt. #8 at 3). Plaintiff also alleges that Officer

Castro failed to protect him against the excessive force used by Officer Laird. In addition, he contends

that both officers violated his Fourth Amendment rights by administering an involuntary drug test and

they violated his due process and equal protection rights by inflicting pain and suffering on him. 

Finally, plaintiff alleges that the City of Federal Way should be liable for failing to properly train its

police officers in the use of Taser guns. (Id. at 4). 

Defendants argue that plaintiff’s claims must be dismissed because there are no genuine issues

of material fact and they are entitled to judgment as a matter of law. In addition, even if the police

officers committed a constitutional violation, defendants argue that they are entitled to qualified

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REPORT AND RECOMMENDATION

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immunity.

Summary Judgment Standard

Summary judgment is proper only where "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(c). The moving party has the burden of demonstrating the absence of a

genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A

reviewing court is required to draw all inferences in a light most favorable to the non-moving party. 

Id. at 248. Genuine disputes are those for which the evidence is such that a "reasonable jury could

return a verdict for the nonmoving party." Id. Material facts are those which might affect the

outcome of the suit under governing law. Id.

Excessive Force

The Ninth Circuit Court of Appeals has articulated the following framework to analyze

claims of excessive force during an arrest:

We analyze excessive force claims in the arrest context under the Fourth

Amendment's reasonableness standard. We balance the nature and quality of the

intrusion on the individual's Fourth Amendment interests against the countervailing

governmental interests at stake and ask whether, under the circumstances, including

the severity of the crime at issue, the suspect poses an immediate threat to the safety

of the officers or others, or whether he is actively resisting arrest or attempting to

evade arrest by flight. The reasonableness inquiry is objective, without regard to the

officer's good or bad motivations or intentions. We judge reasonableness from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight and allow for the fact that police officers are often forced to make splitsecond judgments – in circumstances that are tense, uncertain, and rapidly evolving –

about the amount of force that is necessary in a particular situation. 

Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir. 2002) (footnotes and quotations omitted) (emphasis

added).

Defendants argue that Officer Laird used reasonable force when he fired the Taser seven or

eight times at plaintiff in order to restrain him. However, applying the standard set forth by the

Ninth Circuit in Billington, and viewing the facts in the light most favorable to the non-moving party,

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REPORT AND RECOMMENDATION

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i.e., plaintiff, the court finds that there is a genuine issue of fact as to whether the force was

excessive. Notably, Officer Laird did not see plaintiff carrying a weapon of any kind during the

incident, nor did he have any reason to suspect that plaintiff had a weapon. Thus, it does not seem

likely that plaintiff posed a threat to the safety of the officer, especially after plaintiff fell to the

ground. Nor does it seem likely that plaintiff was seriously attempting to flee when he was

attempting to get off the ground. It is even unclear whether plaintiff was actively resisting arrest or

whether he was merely confused and in pain from being repeatedly stunned by the Taser. 

Accordingly, the court concludes that defendants’ motion for summary judgment should be denied as

to plaintiff’s claim of excessive force..

Failure to Protect

Plaintiff alleges that Officer Castro failed to protect him against the excessive force used by

Officer Laird. Defendants argue that because Officer Laird’s use of force was not excessive, Officer

Castro cannot be liable for her failure to intervene. (Dkt. #21 at 15). Liability under § 1983 for an

officer’s failure to protect is based upon the officer’s “deliberate indifference” to a serious threat to a

person’s safety. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). Here, Officer Castro’s arrival

on the scene 30 seconds after Officer Laird first fired the Taser at plaintiff indicates that she

witnessed most of the incident. In addition, Officer Castro candidly admits in the report that she filed

the day of the arrest that she “told officer Laird to taser [plaintiff] again, which he did.” (Dkt. #23,

Ex. A at 1) (emphasis added). Thus, Officer Castro was not only aware that plaintiff was repeatedly

shot by Officer Laird’s Taser, but she actively encouraged it. Accordingly, there is a genuine issue

of fact as to whether she was deliberately indifferent to the serious threat to plaintiff’s safety posed

by excessive use of the Taser. Defendants are consequently not entitled to summary judgment on this

claim.

Involuntary Drug Test

Plaintiff contends that Officers Laird and Castro violated his Fourth Amendment rights when

they allegedly forced him at the hospital to undergo a test to screen for drugs. Defendants’ motion

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REPORT AND RECOMMENDATION

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for summary judgment on this ground should be granted. First, plaintiff has produced no evidence

showing that the officers required him to be tested for drugs. Second, even if they did require him to

take the test, they would have had justification for doing so, based on their observations of plaintiff’s

erratic behavior. See Thompson v. Souza, 111 F.3d 694, 703 (9th Cir. 1997). Accordingly,

defendants’ motion for summary judgment should be granted as to this claim. 

Due Process and Equal Protection

Plaintiff contends that Officers Laird and Castro violated his rights under the Fourteenth

Amendment to due process and equal protection by inflicting pain and suffering on him. In order to

show that governmental action violates due process, plaintiff must show that the conduct complained

of is “so brutal and offensive to human dignity as to shock the conscience.” Vaughan v. Ricketts, 859

F.2d 736, 742 (9th Cir. 1988) (internal quotations omitted). “[T]he Constitution does not guarantee

due care on the part of state officials; liability for negligently inflicted harm is categorically beneath

the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 849

(1998). To establish a violation of the Equal Protection Clause, plaintiff must present evidence of

discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-40 (1976). 

Here is it clear that any suffering inflicted by Officers Laird and Castro was not so brutal as to

shock the conscience. While, as the court previously concluded, there is an issue of fact regarding

whether the use of the Taser was excessive, plaintiff has produced no evidence that the officers’

conduct was so egregious as to rise to the level of a due process violation. In addition, plaintiff has

not produced any evidence that the officers acted with discriminatory intent. Therefore, defendants

are entitled to summary judgment as to this claim. 

City of Federal Way

Plaintiff contends that the City of Federal Way is liable under § 1983 for its failure to

properly train Officers Laird and Castro in the use of the Taser. See City of Canton, Ohio, v. Harris,

489 U.S. 378 , 387-88 (1989). However, plaintiff produces no evidence showing that the City of

Federal Way failed to properly train its police officers in the use of the Taser. Defendants have

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 The sole case relied upon by defendants is not only from outside the Ninth Circuit, but is

factually distinguishable. In Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992), the Sixth

REPORT AND RECOMMENDATION

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provided, in their motion for summary judgment, evidence that Officer Laird received training in use

of the Taser. This evidence is not challenged by plaintiff. Accordingly, defendants’ motion for

summary judgment should be granted as to this claim. 

Qualified Immunity

Defendants argue in their summary judgment motion that even if the court finds that Officers

Laird and Castro may have violated plaintiff’s constitutional rights, they are entitled to qualified

immunity. Qualified immunity protects § 1983 defendants performing discretionary functions from

liability for civil damages so long as their conduct does not violate a clearly established constitutional

or statutory right of which a reasonable person would have known. See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court clarified the test to be applied in

evaluating claims of qualified immunity. The threshold inquiry in a qualified immunity analysis is

whether the facts alleged, when taken in the light most favorable to the party asserting the injury,

show that the defendant’s conduct violated a constitutional right. Id. at 201. If the reviewing court

concludes that no constitutional right was violated by the defendant’s conduct, the court need not

inquire further. Id. However, if the reviewing court concludes that a constitutional right was

violated, the court must then determine whether the right was clearly established. Id. “The relevant,

dispositive inquiry in determining whether a right is clearly established is whether it would be clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. 

As to Officers Laird and Castro, this court has concluded that substantial questions exist as to

whether the conduct of those defendants violated plaintiff constitutional rights and, thus, the court

must address the second prong of the qualified immunity analysis. Although no reported decision

shares precisely the same facts as the case at bar, a review of the relevant case law shows that the law

regarding excessive force was clearly established at the time of plaintiff’s arrest.2

 The relevant

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Circuit granted police officers qualified immunity after they used a Taser on a subject whom the

officers knew to be a paranoid schizophrenic and who was armed with two knives. Id. at 1040. 

Here, Officers Laird and Castro did not know plaintiff to be dangerous nor was he carrying any

weapons.

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factors for determining the constitutionally permissible amount of force are whether “the suspect

poses an immediate threat to the safety of the officers or others, or whether he is actively resisting

arrest or attempting to evade arrest by flight.” See Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir.

2002). 

Applying these factors to plaintiff’s arrest, it seems clear that Officer Laird’s use of the Taser

seven or eight times against plaintiff, who was unarmed and on the ground, would not pass

constitutional muster. In addition, Officer Castro’s failure to protect plaintiff, and indeed, her

encouraging of Officer Laird to fire the Taser at plaintiff, if true, also appears to transgress clearly

established law. Therefore, it should have been clear to both officers that their conduct was

unlawful. Accordingly, defendants fail to satisfy the second prong of Saucier and they are not

entitled to qualified immunity in this action.

CONCLUSION

For the foregoing reasons, the court recommends that defendants’ motion for summary

judgment be granted with respect to all of plaintiff’s claims except his excessive force claim against

Officer Laird and his failure to protect claim against Officer Castro. A proposed order accompanies

this Report and Recommendation. 

DATED this 1st day of September, 2006.AJAMES P. DONOHUE

United States Magistrate Judge 

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