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 A detailed recitation of the facts relevant to plaintiff’s claims against defendant Higa is set

forth in this Court’s original Report and Recommendation. (See Dkt. No. 75 at 2-5.)

REPORT AND RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CURTIS S. THOMPSON,

Plaintiff,

v.

SCOTT O’TOOLE, et al.,

Defendants.

CASE NO. C05-2064-JLR-MJB

SUPPLEMENTAL REPORT AND

RECOMMENDATION

This is a civil rights action brought under 42 U.S.C. § 1983. Among the allegations set forth

by plaintiff in his amended complaint was that Seattle Police Officer Randall Higa used an excessive

amount of force in arresting him.1

 (See Dkt. No. 10 at 3.) The amended complaint was ordered

served on defendant Higa and others and, on September 15, 2006, after plaintiff had had an

opportunity to conduct some discovery, defendant Higa filed a motion for summary judgment. (Dkt.

No. 43.) Defendant Higa argued in his motion for summary judgment motion that his conduct did

not violate any of plaintiff’s constitutional rights. (Id.) He further argued that even if the Court were

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REPORT AND RECOMMENDATION

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to determine that his conduct did violate plaintiff’s constitutional rights, he reasonably believed his

conduct was lawful and, thus, that he was entitled to qualified immunity. (Dkt. No. 43.) Defendant

Higa’s summary judgment motion was noted for consideration on October 20, 2006. (Id.)

On October 2, 2006, plaintiff filed a document entitled “Motion Against Judgment.” (Dkt.

No. 55.) This one page document was apparently intended as plaintiff’s response to defendant

Higa’s summary judgment motion. Plaintiff asserted therein that he had documents in his possession

which showed that defendant Higa and his fellow officer, Jonathan Huber, used excessive and deadly

force against plaintiff. (Dkt. No. 55.) Plaintiff did not submit with his response any of the

documents he claimed to have in his possession relevant to his allegations against defendant Higa and

Officer Huber. However, he did submit, in conjunction with his response, a motion to amend his

complaint to add Officer Huber to this action. (Dkt. No. 54.) 

On October 10, 2006, defendants filed a response in opposition to plaintiff’s motion to amend

his complaint to add Officer Huber. (Dkt. No. 60.) And, on October 20, 2006, defendant Higa filed

a reply brief in support of his motion for summary judgment. (Dkt. No. 66.) Defendant Higa

correctly noted in his reply brief that plaintiff’s one page response to the pending summary judgment

motion contained neither facts nor argument. (Id.) 

Over two weeks later, on November 6, 2006, plaintiff filed a document entitled “Evidence in

Support of Objection to Judgment.” (Dkt. No. 71.) Plaintiff asserted therein that a number of

documents provided to him during discovery, which he submitted as attachments to his brief, clearly

established the following:

(1) I was “away from any officers or victims” & had to be “pointed out before” the

officers seized me; (2) that I was “tackled from behind by officers & no threat” to

them; (3) that I never tried to “disarm them & this was added to cover up” Illegal

Seizure; (4) that there is “video & photo’s of Incident” (Including possible Police Car

Video).

(Dkt. No. 71 at 1.) Plaintiff argued that, based upon the foregoing, he had established a material fact

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for a jury, and that summary judgment should therefore be denied. (Dkt. No. 71 at 1.) 

On November 9, 2006, defendant Higa submitted a sur-reply in which he requested that

plaintiff’s supplemental evidence be stricken as untimely. (Dkt. No. 72.) Defendant also argued in

his sur-reply that the supplemental evidence submitted by plaintiff did not support plaintiff’s

contention that there were issues of fact which prevented summary judgment. (Id.)

On November 17, 2006, the undersigned issued a Report and Recommendation addressing

defendant Higa’s motion for summary judgment, plaintiff’s motion to amend his complaint to add

Officer Huber, and two motions to compel discovery filed by plaintiff. (Dkt. No. 75.) This Court

recommended therein that defendant Higa’s motion for summary judgment be granted, and that

plaintiff’s motions to amend his complaint and to compel discovery all be denied. (Id.) This Court

also expressly denied defendants’ request to strike plaintiff’s November 6, 2006, supplemental brief. 

(Id. at 9.) 

Plaintiff subsequently filed objections to this Court’s Report and Recommendation, (see Dkt.

No. 76), and defendant Higa filed a response thereto (Dkt. No. 79). On January 23, 2007, the

Honorable James L. Robart, United States District Judge, issued an Order adopting this Court’s

recommendations with respect to plaintiff’s motions to compel, but declining to adopt the

recommendations with respect to defendant Higa’s motion for summary judgment and plaintiff’s

motion to amend his complaint. (See Dkt. No. 83.) Judge Robart noted that plaintiff had raised new

factual allegations in his objections, including contentions that he was “‘away from any victim or

officer’ and had to be ‘pointed out’ and not ‘resisting or fleeing’ when I was ‘tackled from behind

and struck in the head.” (Id. at 1-2.) Judge Robart therefore returned the matter to this Court to

recommend a disposition in light of plaintiff’s new factual allegations. (Id.)

Following Judge Robart’s remand, this Court granted the parties an opportunity to submit

supplemental briefing addressing the issues raised by Judge Robart in his January 23, 2007, Order. 

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(Dkt. No. 84.) Defendant Higa filed a supplemental brief on February 8, 2007, in which he argues

that plaintiff raised no new factual allegations in his objections to this Court’s Report and

Recommendation, that each of plaintiff’s allegations has been addressed by the parties in their briefs

and has been considered by the Court, and that this Court should once again conclude that defendant

Higa’s actions were reasonable under the circumstances and therefore did not violated plaintiff’s

constitutional rights. (Dkt. No.85.) Defendant Higa also argues in his supplemental brief that no

amendment should be permitted. (Id.) 

Plaintiff filed a supplemental brief on February 13, 2007. (Dkt. No. 86.) He argues therein

that the evidence clearly shows he was away from any officers or victims and that he had to be

pointed out by witnesses. (Id. at 2.) He further asserts that the evidence clearly shows that he was

tackled by officers and that there was never any struggle nor any threat to flee or resist. (Id.) 

This Court has now reviewed all of the parties’ original motion papers again, its original

Report and Recommendation, and the supplemental briefs of the parties. This review reveals that the

factual allegations set forth by plaintiff in his objections to this Court’s original Report and

Recommendation, which are reiterated by plaintiff in his February 13, 2007, supplemental brief, are

essentially the same as the factual allegations which were presented by plaintiff in his November 6,

2006, supplemental brief. In each of these three documents, plaintiff alleges that he was away from

the victims and had to be pointed out by the witnesses before the officers seized him, that he was

tackled from behind by officers, and that he was not resisting or fleeing. The Court considered each

of these allegations in arriving at its conclusion that defendant Higa was entitled to summary

judgment. 

This Court referenced those allegations in the following passage in it’s original Report and

Recommendation:

Plaintiff, in his materials objecting to defendant Higa’s summary judgment

motion, appears to argue that he was not near the officers or victims and that he posed

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2

 As explained by the Court in it’s original Report and Recommendation, summary judgment is

appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there

exists “no genuine issue as to any material fact” such that “the moving party is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). A material fact is a fact relevant to the outcome of the

pending action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Genuine issues of

material fact are those for which the evidence is such that “a reasonable jury could return a verdict for

the nonmoving party.” Id. A mere scintilla of evidence is insufficient to create a factual dispute. See

id at 252. 

REPORT AND RECOMMENDATION

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no threat to them. He also offers witness statements, not provided by defendants,

which he appears to believe demonstrate that he did not resist. In fact, plaintiff’s

materials suggest, at most, that he posed no threat to officers before they attempted to

apprehend him after they pursued him. He offers no evidence to refute the officers’

statements that he resisted their attempts to take him into custody. 

(Dkt. No. 75 at 7-8.)

This Court now makes explicit what it intended to convey in the above passage; i.e., that none

of the factual allegations set forth by plaintiff in his motion papers creates a genuine issue of material

fact sufficient to preclude entry of judgment in favor of defendant Higa.2

 Plaintiff’s allegations that

he was not fleeing or resisting at the time he was seized by the police are not supported by any

objective evidence in the record. Plaintiff’s subjective impression of events is not sufficient to create

a genuine issue of material fact for trial. See Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299

(9th Cir.1981) (“[a] motion for summary judgement cannot be defeated by mere conclusory

allegations unsupported by factual data”). Plaintiff’s allegations that he was pointed out to the police

by witnesses before the officers seized him, and that police officers did pursue plaintiff and grab him

are, in fact, consistent with the objective evidence in the record. However, these factual allegations

may not be viewed in isolation. 

In rendering its decision on defendant Higa’s summary judgment motion, the Court was

required to consider plaintiff’s allegations in light of the record as a whole. See Fed. R. Civ. P. 56(c)

(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

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material fact and that the moving party is entitled to judgment as a matter of law.") As indicated by

this Court in its original Report and Recommendation, the objective evidence in the record, when

viewed in its entirety, demonstrates that defendant Higa’s actions were reasonable under the

circumstances and that his conduct therefore did not violate plaintiff’s constitutional rights. The

record also demonstrates that Officer Huber’s actions in effectuating plaintiff’s arrest were

reasonable under the circumstances. It would therefore serve no purpose to allow plaintiff to amend

his complaint to add Officer Huber as a defendant in this action.

For the foregoing reasons, this Court once again recommends that defendant Higa’s motion

for summary judgment be granted, and that plaintiff’s motion to amend his complaint to add Officer

Huber be denied. A proposed order accompanies this Report and Recommendation. 

DATED this 9th day of May, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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