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Donahue v. Wihongi

United States District Court, D. Utah

December 20, 2018

KEVIN LEO DONAHUE, Plaintiff,
v.
OFFICER SHAUN WIHONGI, SALT LAKE CITY POLICE DEPARTMENT, and SALT LAKE CITY CORPORATION, Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendants Officer Shaun Wihongi, Salt Lake City Police Department, and Salt Lake City Corporation's (collectively “Defendants”) Motion for Summary Judgment. On November 14, 2018, the court held a hearing on the motion. At the hearing, the Plaintiff was represented by Karra Porter and John Lauritzen. Defendants were represented by John Delaney. The court took the motion under advisement. Based on the briefing filed by the parties and the law and facts relevant to the pending motion, the court issues the following Memorandum Decision and Order GRANTING the Defendants' Motion for Summary Judgment in its entirety. (Dkt. No. 26).

         FACTUAL BACKGROUND

         Plaintiff Kevin Leo Donahue M.D. filed this case arguing that Officer Shaun Wihongi used excessive force against him in violation of his 4th amendment rights. On April 21, 2015, at approximately 10:45 p.m., Donahue witnessed what he believed to be criminal behavior two houses west of his house. Donahue was returning home after working all day helping his neighbor Cate on a home remodel. Prior to returning home he ate at a restaurant with Cate. Donahue had one glass of wine with Cate before leaving to his home.[1]

         On his way home, he noticed an individual he did not recognize on his neighbor Ruth's front entry landing. Ruth is single and elderly. Donahue questioned the individual and she told him that she was there because she was looking for a place to rent. She told Donahue that her boyfriend lived there. Donahue knew she was lying by her response and told her to leave immediately. She resisted leaving and Donahue called her “a piece of shit” because he believed she was trespassing.

         Donahue asserts that she responded by swinging her right arm and hit his left jaw. Donahue told her that he was calling the police. She responded that the police were just a few houses down and that she was hiding from them because there had been a disturbance at that house. Donahue walked down the street to speak with the police because he believed that she may be a threat.

         Donahue walked up to Officer Bennett, who was on the sidewalk, and told him that he wanted to report an assault. Donahue whispered to Bennett “I don't want to get involved in this mess. My name is Kevin Donahue. I live at 1864. I, I don't want to get involved in this mess.”[2]Bennett Body Cam Transcript; Dkt. No. 33, Ex. 8. Bennett repeatedly informed Officer Bennett that he did not want to get involved, but that he only wanted to inform him that he saw a woman trespassing down the street at his single elderly neighbor's house and the woman assaulted him. Officer Bennett informed Donahue that he was in training and that the other officers would be finished soon.

         Officer Wihongi exited the house and interviewed the women who hit Donahue. The women falsely identified herself as Amy. After speaking with the women for five to ten minutes, the police allowed her to leave. During this encounter Donahue was sitting down in front of a nearby house.

         Donahue recounted his recollection of his alleged assault to Officer Wihongi. Donahue told Officer Wihongi that he was a long-time resident of the community and has extensive knowledge of the neighborhood and neighbors. Officer Wihongi requested Donahue's name, to which Donahue refused to give because he stated that he did nothing wrong, committed no crimes, and only wanted to report the assault, but not file a police report.

         Officer Wihongi stated that Amy said that Donahue was intoxicated. Specifically, Amy said that Donahue was drunker than “Cooter Brown.” Donahue told Officer Wihongi that he only had one glass of wine, and that he could verify that by speaking with his neighbor Cate who lived five houses west.

         Officer Wihongi ordered Donahue multiple times to provide his name. Donahue replied that he only wanted to report the assault and did not want to file a police report or get involved. Officer Wihongi told Donahue to stand up because he was being detained. Donahue responded that he will give the officer his name and asked the officer multiple times to please not hurt him. Donahue asserts that while restraining him by holding his right arm behind his back and flexing his wrist, Officer Wihongi abruptly hyper flexed his wrist. Then both he and Officer Bennett allegedly performed a search and pat-down on Donahue.

         While in handcuffs, Donahue told the officers that he had served the Veteran's at the VAMC for four years, worked for the Native Americans for four years as a physician, worked as a physician at Weber State University for four years, and was an active community member for the last 25 years. At this time Donahue requested that Officer Wihongi bring in a supervisor. By this time Officer Wihongi allegedly discovered that the women who identified herself as “Amy” was long gone and had provided a fake name. Sergeant Wallace allegedly arrived ten minutes later and removed the handcuffs after listening to Donahue's recollection of the proceeding events.

         Donahue told the officers that “This will not go.” The next day Salt Lake City Police Department allegedly refused to photograph the bruises on Donahue's arm while at LDS hospital. Donahue photographed the bruises himself with an attorney as a witness. Donahue filed this suit claiming that Officer Wihongi violated his rights by unlawfully detaining him, using excessive force, and detaining him for an excessive amount of time.

         LEGAL ...


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