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
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 (
. 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
. 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
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
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
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
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
now declares a variety of unreported andinconsistent assaults and additional examples of racial language. While he now claims that he had a
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