UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

RYAN K. SMYTHERS, 

Plaintiff, 

v. 

MEDFORD OREGON POLICE DEPARTMENT, 

JOSHUA SPANO, OFFICER SPANA'S 

SUPERVISORS, AND MEDFORD OREGON 

POLICE CHIEF; 

Defendant. 

AIKEN, Chief Judge: 

Case No. 1:14-cv-01755-AA 

OPINION and ORDER 

Plaintiff, pro se, filed a complaint pursuant to 42 U.S.C. § 

1983 alleging claims of excessive force stemming from an arrest 

in a Fred Meyer store. Defendants have moved for summary judgment 

arguing that the arresting officer's use of force was not 

excessive as a matter of law or, in the alternative,. that he is 

entitled to qualified immunity. While the motion for summary 

judgment was pending, defendants filed a motion to dismiss 

plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 41(b) 

for failure to comply with a court order. 

Background 

On June 29, 2014, Defendant Officer Spano responded to a 

call reporting a theft. The call described the indi victual and 

stated that person headed towards Fred Meyer. Once inside Fred 

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Case 1:14-cv-01755-AA Document 39 Filed 11/27/15 Page 1 of 8
Meyer, Officer Spano located Plaintiff in the store and noted the 

odor of alcohol. After speaking with Plaintiff, Officer Spano 

attempted to arrest Plaintiff, who escaped an arm hold and fled. 

An altercation occurred during which Officer Spano's ride-a-long 

tripped Plaintiff, and Officer Spano attempted to re-arrest 

Plaintiff while he was on the ground. During this time, Officer 

Spano kneed Plaintiff twice and punched him in the face three 

times in order to obtain control of Plaintiff. 

Plaintiff went to the hospital and was treated with five 

sutures to close a cut on his eyebrow. No other injuries, apart 

from bruising to his face and a right ankle sprain, occurred. 

Medical records confirm he was intoxicated with alcohol, and that 

he tested positive for cannabinoids and benzodiazepines. 

Plaintiff was charged with Burglary, Identity Theft, Theft, and 

Resisting Arrest. After resolving his Oregon charges, Plaintiff 

was extradited to Missouri, where he is incarcerated for 

unrelated convictions of Burglary, Theft, Theft of Credit Cards, 

Forgery, and Receiving Stolen Property. 

Discussion 

I. Defendant's Motion for Summary Judgment (#30): 

Defendants argue that Officer Spano's use of force was not 

excessive as a matter of law or, in the alternative, that he is 

entitled to qualified immunity. Plaintiff was notified of the 

federal summary judgment standard and has not filed a response to 

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Case 1:14-cv-01755-AA Document 39 Filed 11/27/15 Page 2 of 8
defendants' motion 

Summary judgment is appropriate if there is no genuine issue 

of material fact and the moving party is entitled to judgment as 

a matter of law. Fed. R. Civ. P. 56(a). An issue is "genuine" if 

a reasonable jury· could return a verdict in favor of the nonmoving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 

(9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986)). Normally, a court draws inferences in the light 

most favorable to the non-moving party but, "when opposing 

parties tell two different stories, [and] one of which is 

blatantly contradicted by the record, so that no reasonable jury 

could believe it, a court should not adopt that version of the 

facts for purposes of ruling on a motion for summary judgment." 

Scott v. Harris, 550 U.S. 372, 380 (2007). When a videotape 

captures the events in question, a court should view the facts in 

the light depicted in the videotape, thereby resolving any 

relevant issue of fact. See id. at 378-81. 

Whether a claim of qualified immunity is valid is a two-step 

inquiry. First, plaintiffs must allege facts establishing a 

violation of a constitutional right. See Pearson v. Callahan, 555 

U.S. 223, 232 (2009). Second, the right must be "clearly 

established" at the time of the alleged misconduct. Id. The 

material facts do not establish a violation of Plaintiff's 

constitutional rights. 

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Case 1:14-cv-01755-AA Document 39 Filed 11/27/15 Page 3 of 8
The reasonableness of the use of force is a case-by-case 

inquiry, judged by the perspective of a reasonable officer on the 

scene rather than with 20/20 hindsight. Graham v. Conner, 490 

U.S. 386, 396 (1989). As police officers make split-second 

decisions in uncertain and rapidly evolving circumstances, 

reasonableness must "embody allowance[s]" for this fact and 

"[n]ot every push or shove, even if it may later seem unnecessary 

in the peace of a judge's chambers, violates the Fourth 

Amendment." Id. at 396-97. While case specific, facts such as the 

severity of the crime at issue, whether the suspect poses a 

threat to the safety to the officer or others, and whether the 

suspect actively is resisting arrest, or attempting to flee, are 

relevant. See id. at 396. 

The following facts are supported by the record and are 

undisputed. A videotape of the incident clearly shows that 

Officer Spano, who correctly noted signs of intoxication, 

confronted plaintiff. Upon Officer Spano's attempted arrest, 

Plaintiff fled but tried to reach for an object on the aisle. 

Officer Spano believed him to be reaching for an improvised 

weapon and Spano attempted to taser Plaintiff into submission, 

who was unaffected. Shortly thereafter, Plaintiff tripped and 

fell to the ground. Once there, Officer Spano attempted arresting 

Plaintiff again, who further resisted. Officer Spano then punched 

and kneed Plaintiff until successfully handcuffing Plaintiff. 

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Case 1:14-cv-01755-AA Document 39 Filed 11/27/15 Page 4 of 8
After Plaintiff was secured, no further force was used. 

Under these facts, Officer Spano's use of force was 

objectively reasonable. The arrest was for a felony. Further, 

Plaintiff was intoxicated, actively resisting arrest, and 

attempted to flee. Additionally, lessor uses of force were 

unsuccessful, as a taser did not affect Plaintiff and he kept 

fleeing. Even when on the ground, Plaintiff resisted Officer 

Spano's attempts to complete the arrest, until the use of 

physical force. While the non-violent nature of the crime weighs 

against the use of force, while fleeing, Plaintiff looks to have 

attempted to grab an item from the aisle, which Officer Spano 

believed could have been an improvised weapon. Finally, Officer 

Spano stopped using force against Plaintiff once compliance 

occurred, which weighs against a finding of excessive force. 

These undisputed facts establish that the amount of force 

used to subdue and arrest plaintiff was reasonable and necessary 

and not excessive or unconstitutional. However, even if some 

slight impingement of plaintiff's rights may have occurred during 

the arrest, I find that Officer Spano is entitled to qualified 

immunity from liability. 

Qualified immunity shields government officials from 

liability for damages when they make decisions that, even if 

constitutionally deficient, reasonably misapprehend the law 

governing the circumstances they confronted. Brosseau v. Haugen, 

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Case 1:14-cv-01755-AA Document 39 Filed 11/27/15 Page 5 of 8
543 U.S. 194, 202 (2004); Harlow v. Fitzgerald, 457 u.s. 800 

(1982). 

An official should be denied qualified immunity only when 

"[t]he contours of the right are sufficiently clear that a 

reasonable official would understand that what he is doing 

violates that right. Anderson v. Creighton, 483 U.S. 635, 640 

(1987). Qualified immunity is immunity from suit, not merely a 

defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526 

(1985). Like absolute immunity, qualified immunity is 

effectively lost if a case is erroneously permitted to go to 

trial. Id. Consequently, the Court has repeatedly stressed the 

importance of resolving immunity questions at the earliest 

possible stage in litigation. See, Hunter v. Byrant, 502 U.S. 

224, 227 (1991) (per curiam); Saucier v. Katz, 533 U.S. 194, 201 

(2001); see also, James v. Rowlands, 606 F.3d 646 (9th Cir. 

2010). 

The undisputed facts of this case establish that defendant 

Spano did not violate plaintiff's constitutional rights. 

However, if some minimal encroachment did arguably occur, 

defendant Spano is qualifiedly immune from liability for damages 

because he acted reasonably under the circumstances. Brosseau, 

543 U.S. 194, 202; Harlow, 457 U.S. 800. 

Because I find that there was no constitutional violation, 

there is no basis for liability of the other defendants and it is 

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Case 1:14-cv-01755-AA Document 39 Filed 11/27/15 Page 6 of 8
not necessary to address defendants' Monell arguments. 

Defendant's Motion for Summary Judgment (#30) is allowed. 

II. Motion to Dismiss (#36): 

Defendants move the court for an order dismissing 

plaintiff's action pursuant to Fed. R. Civ. P. 41(b) for failure 

to comply with the court's order to comply with the court's June 

1, 2015 order to respond to defendants' discovery request. 

Because I have found that defendants are entitled to judgment as 

a matter of law on the merits of plaintiff's claim, it is not 

necessary to address defendant's motion to dismiss in detail. 

However, I note for the record that it is undisputed that the 

court ordered plaintiff to respond to defendants requests for 

discovery and that plaintiff has apparently made no effort to 

comply with the court's order. 

In dismissing for failure to comply with court order under 

Rule 41 (b) , a court must weigh the following factors: 1) the 

public's interest in quick resolution of litigation; 2) a court's 

need to manage its docket; 3) the risk of prejudice to the 

parties; 4) availability of less drastic alternatives; and 5) 

public policy favoring disposition of cases on their merits. See 

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 

As set forth in defendants' memorandum, these relevant 

factors heavily weigh in favor of dismissal. Defendants' Motion 

to Dismiss (#36) is allowed. 

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Conclusion 

Defendants' Motion for Summary Judgment ( #30) and 

alternative Motion to Dismiss (#36) are allowed. The Clerk of the 

Court is directed to enter a judgment dismissing this action with 

prejudice. 

Dated this day of November, 2015. 

U.S. District Judge 

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