                                                                           FILED
                          CORRECTED March 12, 2012 +                        MAR 06 2012

                                                                        MOLLY C. DWYER, CLERK
                            NOT FOR PUBLICATION                          U .S. C O U R T OF APPE ALS




                     UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



GEORGE A. TILLETT,+ et al., etc.                 No. 11-35103

              Plaintiffs-Appellants,             D.C. No. 3:09-CV-05621-RJB

  v.                                             MEMORANDUM *

CITY OF BREMERTON, JEFF
Inklebarger, STEVEN M. POLONSKY,
HAROLD P. WHATLEY AND KEITH A.
SARGENT, et al.

              Defendants-Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                      Argued and Submitted February 10, 2012
                               Seattle, Washington

Before: SCHROEDER, ALARCÓN, GOULD, Circuit Judges.

       George and Grace Tillett (“Appellants”) filed this action based on injuries

George Tillett received when he was forcibly detained during the execution of a


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
warrant to search his son’s residence and seize evidence of a violation of a

Washington state law prohibiting the distribution of a controlled substance. In

their complaint, Appellants alleged that they were entitled to damages for violation

of state and federal law by the named defendants.

      Appellees filed a motion for summary judgment in which they alleged that

Appellants could not demonstrate that there was a genuine issue of fact in dispute

about whether the named defendants had violated state or federal law. We affirm

the order granting Appellees’ motion for summary judgment because the record

shows that in their opposition, Appellants failed to rebut Appellees’ evidence that

any injury suffered by George Tillett was caused by his resistance to being

restrained to protect officers engaged in executing a valid search warrant.

                                          I

      In support of their motion for summary judgment, the Defendants presented

the following facts. Police officers of the City of Bremerton, acting pursuant to a

search warrant, entered the residence owned by the Appellants’ son. They

announced their presence by shouting “Police Search Warrant.” Officer Harold P.

Whatley went to the bottom of a stairway where he observed a closed door.

George Tillett opened the door and entered the area where Officer Whatley was

standing. George Tillett was wearing a bulky coat capable of concealing a weapon.


                                          2
Officer Whatley yelled at him “Police, get on the ground.” George Tillett

responded, “No.” Instead, he attempted to return to the adjoining room. Officer

Whatley reached out to grab his overcoat to detain him. George Tillett resisted and

fell to a sitting position as he backed away. Officer Whatley grabbed George

Tillett’s coat and placed him on his stomach. George Tillett placed his left arm

under his body to prevent Officer Whatley and Officer Jeff Inklebarger from

placing hand restraints on him. The officers successfully placed hand restraints on

his wrists. The restraints were removed within five minutes.

      Officer Inklebarger noticed that George Tillett had a small laceration on his

right wrist. Officer Inklebarger checked the restraints to ensure that they would not

contact the laceration. He also double locked the restraints so that they would not

tighten.

      The officers asked George Tillett if he wanted to receive medical aid. He

refused. The officers asked members of the Bremerton Fire Department to

evaluate the laceration on George Tillett’s wrist. Bremerton Fire Department

personnel examined George Tillett’s wrist. They left when George Tillett did not

request any further medical examination or treatment.

      In their response to the motion for summary judgment, Appellants did not

challenge Appellees’ evidence that George Tillett refused to obey


                                          3
Officer Whatley’s command to get on the floor and placed his arm under his body

to avoid having restraints placed on his wrists. Accordingly, we must decide

whether the record shows there are genuine issues of fact in dispute regarding the

liability of the named defendants for the injury suffered by George Tillett when the

officers placed restraints on his wrists.

                                            II

      We review de novo Appellants’ contention that the district court erred in

granting Appellees’ motion for summary judgment. Bravo v. City of Santa Maria,

665 F.3d 1076, 1083 (9th Cir. 2011).

                                            A

      The dispositive issue in this matter is whether Officer Whatley and

Officer Inklebarger are liable for using excessive force in restraining George Tillett

when he resisted their attempts to place hand restraints on him during the execution

of a valid search warrant.

      Appellants appear to contend that the officers violated 42 U.S.C. § 1983 by

failing to enter the residence through the garage instead of the front door to restrain

George Tillett, if they believed he was a danger to their safety. There is no

evidence in the record of any conduct by George Tillett, while he stood in the

garage, that demonstrated that he would resist being restrained or that he might be


                                            4
armed. Instead, the undisputed evidence shows that he did not pose a danger until

after he entered the house from the garage wearing a coat which could have

concealed a weapon, while the officers conducted their search pursuant to a valid

warrant. He refused Officer Whatley’s command that he lie down on the floor and

attempted to enter another part of the residence.

      Although set forth in Appellees’ answering brief, Appellants failed to cite or

attempt to distinguish the applicability of the Supreme Court’s decisions in

Michigan v. Summers, 452 U.S. 692 (1981) and Muehler v. Mena, 544 U.S. 93

(2005). In Summers, the Court recognized that the execution of a warrant to search

for drugs “may give rise to sudden violence or frantic efforts to conceal or destroy

evidence,” id. at 702, and held that officers executing a search warrant for

contraband may use reasonable force to detain persons within a residence to

prevent flight and “minimiz[e] the risk of harm to the officers.” Id. In Muehler,

the Court held that placing the occupant of a residence in handcuffs at gun point,

and detaining her for three hours while executing a search warrant, was a

reasonable use of force and represented a marginal intrusion of her constitutional

rights. 544 U.S. at 98–99.

      Here, George Tillett refused to follow the command of Officer Whatley, and

would not have been injured if he had not placed his arm under his body to avoid


                                          5
the officers’ efforts to place hand restraints on him. He was only restrained for five

minutes. George Tillett declined the offer of medical assistance made by officers

on the scene. At the officers’ request, the Bremerton Fire Department (“BFD”)

conducted a medical evaluation of George Tillett. The BFD cleared Tillett

medically.

      Under the totality of their circumstances, none of the named defendants

acted unreasonably in detaining George Tillett or in placing hand restraints on him

after he resisted their efforts. See id. at 98–100. The district court did not err in

holding that the Officers were entitled to qualified immunity.

                                           B

      The district court also did not err in determining that the City of Bremerton

was not liable for any alleged constitutional violations under § 1983. To establish

municipal liability under § 1983, a plaintiff must establish that he was deprived of

a constitutional right and that “the constitutional violation was the product of a

policy, practice, or custom adopted and promulgated by the city’s officials.”

Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (citing Monell v.

Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690–91 (1978)). Appellants have

failed to demonstrate that George Tillett’s constitutional rights were violated or




                                            6
that the City had a policy or custom that resulted in the alleged violation of George

Tillett’s constitutional rights.

       Appellants have presented no evidence supporting their claim that either the

City or the officers ignored the procedures for executing a search warrant, or

otherwise followed a practice that was so widespread as to have the force of law.

See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (holding that “an

act performed [by a municipal employee] pursuant to a ‘custom’ that has not been

formally approved by an appropriate decisionmaker may fairly subject a

municipality to liability on the theory that the relevant practice is so widespread as

to have the force of law”). Absent competent evidence demonstrating that the City

had a policy, practice, or custom that caused a constitutional injury, the City is not

liable for monetary damages in a § 1983 suit. See Leatherman v. Tarrant Cnty.

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993) (“a

municipality . . . cannot be held liable [under § 1983] unless a municipal policy or

custom caused the constitutional injury”).

                                          C

       The district court did not err in dismissing Appellants’ state law tort claim of

outrage. Washington’s tort of outrage requires proof of behavior “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of


                                           7
decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Grimsby v. Samson, 530 P.2d 291, 295 (Wash. 1975) (citation

omitted). The record supports the district court’s finding that a reasonable person

could not view the conduct of the defendant police officers as extreme and

outrageous. Appellants presented no evidence demonstrating that any of the police

officers used force beyond what was reasonable under the circumstances.

                                           D

      The district court did not err in dismissing Grace Tillett’s loss of consortium

claim. To prove loss of consortium, Grace Tillett was required to demonstrate that

there is a genuine issue of material fact as to whether George Tillett was injured by

the officers. See Lundgren v. Whitney’s, Inc., 614 P.2d 1272, 1275 (Wash. 1980)

(holding that a wife may bring a cause of action for damages for the loss of her

husband’s consortium due to the negligence of a third party). Grace Tillett has

died since this litigation began. We need not decide whether the decedent’s

personal representative may press a claim for loss of consortium under

Washington’s survival statute, R.C.W. 4.20.046, because even if such a claim

survives Grace Tillett’s death, it fails on the merits. Grace Tillett did not present




                                           8
any evidence to support her claim that the officers acted negligently in placing

George Tillett in hand restraints to ensure their safety.

      AFFIRMED.




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