1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

GORDON L. PEDERSON, pro se

Plaintiff,

v.

STEPHEN PFUHL - VANCOUVER

POLICE OFFICER, PAUL FISK -

VANCOUVER POLICE OFFICER, et al.,

Defendants.

No. C05-5717 RBL

ORDER GRANTING

MOTION FOR

SUMMARY JUDGMENT 

 

This matter comes before the Court on Defendants Clark Regional Emergency Services Agency

(hereinafter “CRESA”) and Debra Butchard’s motion for summary judgment. [Dkt. #50] The Court,

having considered the records and file herein, now finds and rules as follows: 

BACKGROUND

This dispute arises from a series of events occurring on September 4, 2003. [Dkt. #1-2 at p. 2] 

That afternoon, plaintiff became involved in an altercation with two officers from the Vancouver Police

Department, defendants Stephen Pfuhl and Paul Fisk, who had come to plaintiff’s son’s mother’s home to

investigate allegations that plaintiff’s son and his girlfriend had been assaulted on their way home from

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 1 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

school. [Dkt. #1-2 at p. 2-6] Plaintiff was arrested and charged with resisting arrest and obstructing a

police officer. [Dkt. #4 at p. 2] During the course of plaintiff’s criminal proceedings, he attempted, both

through discovery and with direct contact with defendants CRESA and Butchard, to obtain copies of audio

recordings of 911 calls that were, he alleges, made during the course of his altercation with the two

officers. [Dkt. #4, at p. 3-9] 

On October 28, 2003 and October 29, 2003, plaintiff filed requests with CRESA for audio copies

of the 911 calls made on September 4. He was told the tapes would be ready within five days. On

November 18, 2003, plaintiff’s request was denied. He received notification of this on November 25,

2003. 

A few days earlier, on November 10, plaintiff had returned to CRESA, because he had not yet

received the tapes, and was told that there was a backlog, but that the tapes would be ready in another five

days. A week later, plaintiff returned to CRESA, and was again told he’d have the information soon. 

Finally, on November 25, plaintiff was put in contact with Debra Butchard, a data analyst for CRESA. She

informed him that the Vancouver City Attorney’s office had denied his access to the calls. Ms. Butchard

also apparently had difficulty discerning precisely which calls plaintiff was requesting, as different calls,

even regarding the same incident, are categorized differently. Summary Judgment Reply Declaration of

Debra Butchard at 2.

At plaintiff’s criminal trial, defendant Butchard testified that the tape used at trial was an accurate

and complete copy. However, plaintiff asserts that a neighbor, Jennifer Scandale, made additional 911

calls, which were not included in the tape used at trial. Further, multiple witnesses, plaintiff asserts, knew

of Ms. Scandale’s 911 calls.

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 2 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

On August 2, 2005, presumably after the close of plaintiff’s criminal proceedings, plaintiff again

contacted CRESA for copies of the 911 audio recordings or 911 history entries. Ten days later, plaintiff

spoke by phone with Ms. Butchard, who informed him that she could provide copies, but they had been

deleted. Plaintiff was able to acquire two separate histories of 911 calls made regarding the incident. 

Plaintiff has filed a claim under 42 U.S.C. § 1983 against Officers Pfuhl and Fisk, as well as

CRESA and Ms. Butchard for violations of his civil rights. Defendants CRESA and Butchard are now

moving for summary judgment on multiple grounds. 

DISCUSSION

Plaintiff Pederson has appeared pro se. Courts in this Circuit have long held that, particularly

where a pro se petitioner is facing dismissal, the court will construe his or her pleadings liberally. See

Balistreri v. Pacifica Police Dept. 901 F.2d 696, 699 (9th Cir. 1990); Bretz v. Kelman, 773 F.2d 1026,

1027 n.1 (9th Cir. 1985) (“[W]e have an obligation where the petitioner is pro se. . . to construe the

pleadings liberally and to afford the petitioner the benefit of any doubt.”) The court is aware of and has

applied this rule of liberality.

Summary judgment is appropriate when, viewing the facts in the light most favorable to the

nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a

matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the

non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on

file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The mere existence of a scintilla of evidence in support of

the nonmoving party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216,

1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of the suit are

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 3 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, “summary judgment should be

granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a

verdict in its favor.” Triton Energy, 68 F.3d at 122. 

I. Plaintiff Has Not Alleged Federally Protected Rights Were Violated by Defendants CRESA and

Butchard

Plaintiff has alleged that defendants CRESA and Butchard have violated his civil rights by refusing

to provide him with copies of the 911 calls made during his altercation with police. 42 U.S.C. § 1983 “is

not itself a source of substantive rights, but merely provides a method for vindicating federal rights

elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). 

“To make out a cause of action under § 1983, plaintiffs must plead that . . . [defendants] deprived [the

plaintiff] of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d

1334, 1338 (9th Cir. 1986). Specifically, the plaintiff must show that (1) a person (2) acting under color of

state law (3) proximately caused (4) a violation of his rights protected by the Constitution or created by

federal statute. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Further, the plaintiff must show

the violation of a federal right, not a federal statute. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct.

1353, 137 L.Ed.2d 569 (1997), citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110

S.Ct. 444, 107 L.Ed.2d 420 (1989). 

In his complaint, the plaintiff must articulate the facts pertaining to each defendant’s action that led

to the violation of the right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Those facts must

demonstrate that the defendant’s action or inaction was the “actual and proximate cause of any

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 4 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

constitutional violation.” Id. Even if the right has been articulated, “sweeping conclusory allegations will

not suffice to prevent summary judgment.” Id. 

Here, plaintiff has neither identified the right that defendants CRESA and Butchard violated, nor

articulated how their actions amounted to the cause of a violation of constitutional or federally created

rights. And while the Court must construe a pro se plaintiff’s complaint liberally, “[a] liberal interpretation

of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” 

Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents,

673 F.2d 266, 268 (9th Cir. 1982) (internal quotations omitted); see also Pena v. Gardner, 976 F.2d 469,

471 (9th Cir. 1992). Although here plaintiff has very clearly articulated the events that may or may not

have led to a violation of his constitutional rights by defendants Pfuhl and Fisk, he has not alleged any

action on the part of defendants CRESA or Butchard that led to a violation. Plaintiff does list a series of

rights in his response to defendants’ motion, but a mere list of rights is, quite simply, insufficient. Further,

even if the Court were to accept plaintiff’s list of rights as acceptable identification for purposes of a §

1983 action, he has not included, in either his response to defendants’ motion or in his complaint or

supplemented complaint, the facts or events that led to the violation of those rights. 

Since the plaintiff’s complaint, supplemented complaint and response to defendants’ motion for

summary judgment contain neither rights that have been identified, nor an allegation of how defendants

CRESA and Butchard violated those rights, their motion for summary judgment must be GRANTED.

II. CRESA Is Not Vicariously Liable for Defendant Butchard’s Actions 

Plaintiff also alleges that defendant CRESA is vicariously liable for the actions of defendant

Butchard. It is well settled that “a municipality cannot be held liable under § 1983 on a respondeat

superior theory.” Monell v. New York City Dep’t. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018,

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 5 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

The Court assumes that, as neither party has alleged otherwise, defendants CRESA and Butchard are

state actors. 

6

56 L.Ed.2d 611 (1978). Municipalities can be held liable if their custom leads to the violation of the

constitutional right. Id. at 690-91. However, the plaintiff “must allege that the action inflicting injury

flowed from either an explicitly adopted or a tacitly authorized city policy.” Gibson v. United States, 781

F.2d 1334, 1337 (9th Cir. 1986). Plaintiff must also show that “through [the municipality’s] deliberate

conduct, [it] was the moving force behind the injury alleged.” Bd. of the County Comm’rs of Bryan

County, Okla. v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis in original).

Here, not only has plaintiff not shown in either his complaint, amended complaint, or response to

the summary judgment motion that the CRESA had a policy or custom that led to his injury, he has also

failed to demonstrate that CRESA was the moving force behind his alleged injury. Plaintiff has neither

alleged that CRESA had a policy that violated his constitutional rights, nor has he alleged that CRESA was

the moving force behind his injury. Further, he has not even responded to defendant CRESA’s arguments. 

Since plaintiff has entirely failed to identify any federal right that has been explicitly violated by CRESA, or

to identify how CRESA’s policy or actions led to a violation of his constitutional rights, defendant

CRESA’s motion must be GRANTED. 

III. Defendant Butchard is Qualifiedly Immune from Suit

Defendant Butchard has argued that she is immune from suit under the principle of qualified

immunity. Government officials are “entitled to some form of immunity from suits for damages.” Harlow

v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). State actors other than those at

the highest level, such as judges, legislators and the President of the United States, are covered under the

principle of qualified immunity.1

 See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 6 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

523 (1987). “[P]ublic officers require this protection to shield them from undue interference with their

duties and from potentially disabling threats of liability.” Harlow, 457 U.S. at 806.

Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” 

Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth,

472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (internal quotations omitted)). The principle is

an affirmative defense, and must be plead by the defendant official. Harlow, 457 U.S. at 806. “Unless the

plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified

immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526. 

In determining whether a defendant official is qualifiedly immune, the Court examines two distinct

questions. First, “the Court must determine, as a threshold question, whether the plaintiff has shown the

deprivation of a constitutional right.” Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001). The initial

inquiry is whether, in the light most favorable to the party asserting the injury, the facts alleged show that

the officer’s conduct violated a constitutional right. Saucier, 533 U.S. at 201. Only if the plaintiff has

shown that he has been deprived of a constitutional right may the Court continue to the second element,

“whether the right violated was clearly established in a particularized sense: the relevant, dispositive inquiry

is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Deorle, 272 F.3d at 1278-79. If the allegations were established and there were still no

violation of the constitutional right, however, the analysis ends there, and “there is no necessity for further

inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.

Here, plaintiff has not established in any way which constitutional or federal right may have been

violated. In fact, the Court is hard pressed to discern what right, if any, plaintiff may have had that would

have required CRESA and Butchard to provide him with copies of the 911 audio recordings. Defendant

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 7 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Butchard did provide plaintiff with copies of the 911 call histories, Summary Judgment Reply Declaration

of Debra Butchard at 2; however, plaintiff’s inability to articulate the category of recordings he wanted Ms.

Butchard to provide does not lead to a violation of any constitutional right guaranteed to him. 

Additionally, the recordings were preserved, according to defendant Butchard, for at least as long as

statutorily required, and sometimes longer. Summary Judgment Reply Declaration of Debra Butchard at 2-

3. 

Further, plaintiff merely lists a number of rights that he alleges Ms. Butchard violated, without

providing any assertions as to how those rights were violated. Simply listing a number of rights which

every person in this country enjoys, without asserting how and in what manner the rights were violated is

insufficient to withstand a motion for summary judgment and the defendant’s assertion of qualified

immunity. Therefore, defendant Butchard’s motion for summary judgment on the grounds of qualified

immunity must be GRANTED.

IV. Conspiracy Allegation under 42 U.S.C. § 1985(3) 

Finally, plaintiff tangentially alleges that some sort of conspiracy existed between the Vancouver

Police Department and defendants CRESA and Butchard. In order to establish a claim under 42 U.S.C. §

1985(3), which allows for recovery of damages against people who conspire to deprive a person of his

constitutional or federally granted rights, the plaintiff must allege and prove each of the following: “(1) a

conspiracy; (2) for the purpose of depriving . . . any person . . . of the equal protection of the laws . . . and

(3) an act in furtherance of this conspiracy; (4) whereby a person is . . . deprived of any right or privilege of

a citizen of the United States.” Sever v. Alaska Pulp Corporation, 978 F.2d 1529, 1536 (9th Cir. 1992). 

Again, plaintiff has not alleged, either in his complaint, supplemented complaint or response to defendants’

motion to dismiss, that he was deprived of any Constitutional or federally granted right, or the specific acts

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 8 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

of defendants CRESA or Butchard that were causally connected to the deprivation of any right. 

Therefore, defendants’ motion must be GRANTED.

CONCLUSION

For the foregoing reasons, defendants CRESA and Butchard’s motion for summary judgment [Dkt. #50] is

GRANTED, and plaintiff’s complaint is DISMISSED WITH PREJUDICE.

 DATED this 5th day of September, 2006.

A

RONALD B. LEIGHTON

UNITED STATES DISTRICT JUDGE

Case 3:05-cv-05717-RBL Document 60 Filed 09/05/06 Page 9 of 9