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City Dismissal Request in Monetti Suit

City Dismissal Request in Monetti Suit

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Published by: Matt Driscoll on Jun 14, 2012
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DEFENDANTS‟
REPLY IN SUPPORT OF SUMMARY JUDGMENT (11-CV-01041-RSM)THE HONORABLE JUDGE RICARDO S. MARTINEZUNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLEMARTIN MONETTI, JR.,Plaintiff,vs.CITY OF SEATTLE, a municipal corporation;SHANDY COBANE, an individual; MARY L.WOOLLUM, an individual,Defendants.)))))))))))))No. 2:11-CV-01041-RSM
DEFENDANTS‟
REPLY IN SUPPORT OFSUMMARY JUDGMENTNOTED FOR JUNE 8, 2012ORAL ARGUMENT
 – 
JUNE 13, 2012 AT1:00 P.M.
Case 2:11-cv-01041-RSM Document 55 Filed 06/08/12 Page 1 of 14
 
 
DEFENDANTS‟
REPLY IN SUPPORT OF SUMMARY JUDGMENT (11-CV-01041-RSM) - 1
PETER S. HOLMES
 
Seattle City Attorney600 Fourth Avenue, 4th FloorP.O. Box 94769Seattle, WA 98124-4769(206) 684-8200
 
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I.
 
CLARIFICATION OF CLAIMS AT ISSUE
To be clear, there are two discrete constitutional claims at issue: excessive force and equalprotection. Plaintiff complicates this case by changing his factual allegations. In his amendedcomplaint (
 Dkt 
. 17, ¶4.6), plaintiff alleges:
While Monetti was prone and being compliant, defendant Cobane used his foot to kick 
and stomp on Monetti‟s head and hand several times. Defendant Woollum stomped onMonetti‟s lower back with her foot. Defendant Cobane made a number of racist and
demeaning comments to Monetti and Garcia
during this incident, including “You gotme? I am going to kick the fucking Mexican piss out of you homey. You feel me?”
Plaintiff now offers a declaration setting forth alleged facts that conflict not only with hispleadings but with his prior trial testimony and prior statements to the Office of Professional
Accountability (“OPA”)
. Because plaintiff is barred from offering conflicting facts as a means of 
avoiding summary judgment, plaintiff‟s newest account of what happened should be disreg
arded.
See Kennedy v. Allied Mutual Insurance Co.
, 952 F.2d 262, 266 (9th Cir. 1991);
 Nelson v. City of  Davis
, 571 F.3d 924 (9
th
Cir. 2009) (a plaintiff is barred from creating a factual dispute with himself for the purpose of defeating summary judgment);
Corales v. Flagstar Bank, FSB
, 822 F.Supp.2d1102 (2011) (
citing Container Recovery, Inc. v. Shasta Nw., Inc.
, No. 05
 – 
1749
 – 
PK, 2007 WL
1724937, at *6 (2007)(“sham affidavit” rule barring inconsistent statements from establishing
question of fact applies to affidavits that contradict a party's prior admission).P
laintiff‟s rampant
contradictions here, not based on new evidence, constitute far more thanminor inconsistencies, clarifications, or explanations of his prior testimony.
See Scamihorn v. Gen.Truck Drivers
, 282 F.3d 1078, 1086 n. 7 (9th Cir. 2002) (
quoting Messick v. Horizon Indus. Inc.
, 62F.3d 1227, 1231 (9th Cir. 1995)). Mr. Monetti
1
now declares a variety of unreported andinconsistent assaults and additional examples of racial language. While he now claims that he had a
1
Intending no disrespect, defendants will refer to Mr. Monetti as Monetti hereinafter.
Case 2:11-cv-01041-RSM Document 55 Filed 06/08/12 Page 2 of 14
 
 
DEFENDANTS‟
REPLY IN SUPPORT OF SUMMARY JUDGMENT (11-CV-01041-RSM) - 2
PETER S. HOLMES
 
Seattle City Attorney600 Fourth Avenue, 4th FloorP.O. Box 94769Seattle, WA 98124-4769(206) 684-8200
 
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“new and large scratch”
(which scarred) near his right wrist
that he “believes” was
caused byCobane,
 Monetti Decl.
, ¶4, he unequivocally denied any injury to his hand when speaking to theOPA.
Fitzgerald Decl., Ex. A
,
 Monetti OPA Interview
at 16 (Q:
“And what about injuries to your 
hand-
any injuries to your hand?”;
A:
“No.”).
This newly offered assertion of injury to his handcontradicts his prior allegations and even now he cannot attribute this injury
to Cobane‟s actions
.
 Monetti Decl.
, ¶4. This allegation of injury to his hand should be stricken.Also, Monetti now claims that Woollum stomped on his
leg.
 
 Monetti Decl.
, ¶9. But prior tothis recent claim, Monetti repeatedly clarified that
no
officer
ever 
stepped on his leg.
Fitzgerald  Decl.,
 
 Ex. A
at 6-
7 (“Was it on your back or on your legs?”; “My back.”).
He denied any injuries tohis leg.
 Id.
 
at 17 (“What about any actual
physical injuries to your leg,
other than pain?”; “My back.”; “Okay, but nothing on your legs?”; “No.”) Now faced with his own expert‟s declaration
 (Dkt. 40, Jurado Decl., opining that Woollum stepped on his leg), Monetti concedes that there wasno stomp on his back, but claims (upon review of the video alone) pain in his leg that he heretoforehas consistently denied.
 Monetti Decl
. ¶9. Plaintiff also now claims a head injury was caused byincidental contact with
Woollum‟s hand prior 
to the events captured on video, claiming to now
recall “feeling someone put pressure on my head and pushing my head down” c
ausing pain andinjury. Importantly, he does not know which officer did so.
 Monetti Decl
., ¶6. Plaintiff attributesthis to Woollum, but this claim was not pled in the complaint and is not properly before this Court.Plaintiff now further complains that he was hit several times by an unknown person, thatsomeone stepped on his hand at least twice (
 Monetti Decl.
, ¶3), and that an unknown person(perhaps, he speculates, non-party Officer DePina,
see
Opp. at 4) put a knee in his back causing aback injury. These claims cannot be at issue here; a defendant cannot be held liable based on hismembership in a group without a showing that his individual participation was unlawful.
Chuman v.
Case 2:11-cv-01041-RSM Document 55 Filed 06/08/12 Page 3 of 14

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