Opinion
3:21-cv-01838-JR
04-18-2024
BRENTON ALYN GEORGE, Plaintiff, v. CITY OF PORTLAND, a municipal corporation; and PORTLAND POLICE OFFICER DOES 1-10, Defendants.
FINDINGS AND RECOMMENDATION
RUSSO, MAGISTRATE JUDGE:
Plaintiff Brenton George filed this action against defendants the City of Portland (“City”) and unnamed Portland Police Bureau (“PPB”) officers alleging claims under 42 U.S.C. § 1983 and state law arising out of the search of his property and subsequent arrest. Defendants move for summary judgement pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendants' motion should be granted as to plaintiff's federal claims and the remaining state law claims should be remanded to state court.
BACKGROUND
On December 17, 2019, PPB officers served a search warrant on plaintiff's property, which consisted of nearly an acre of land and multiple residences located at 8405 S.E. Harney Street in Portland, Oregon. The primary target of the search was Matthew Spillers, a resident.
PPB's Special Emergency Response Team (“SERT”) first cleared the property. For nearly an hour, SERT loudly hailed the residences and received no response, except from one of the thirteen occupants who attempted to flee but returned upon encountering the police. Concerned by the general lack of response and attempt to evade, and mindful of the security cameras, which could be used to monitor their movements, SERT used a 40mm launcher to disable exterior security cameras. They then approached the main residence, outbuildings, and recreational vehicles (“RV”) on the compound. In the process SERT broke windows on RVs in order to unlock the doors and enter. The people in the compound eventually complied with SERT's audible instructions and were secured by police, making additional forced entries into the residences unnecessary.
However, the property included a locked bomb shelter and “fire doors” that, after unsuccessful attempts to open with the keys provided by plaintiff, were breached by force. After sweeping the house, RVs, and outlying buildings, SERT withdrew. PPB then conducted a search consistent with the warrant. The investigation uncovered numerous safes. The officers consulted with the on-scene Deputy District Attorney who advised that a second warrant should be obtained.
After a second warrant was secured, a search of the safes commenced. Officers first attempted entry using keys and combinations provided by plaintiff. When those efforts failed, SERT was recalled to gain entry. Force was used on several safes but, when the contents yielded no evidence of the crimes contemplated by the warrant, PPB discontinued its efforts.
PBB arrested twelve people in association with these events, one of which was plaintiff.The decision to charge plaintiff was based on the prior investigation and evidence found during the search. Plaintiff was taken to the Multnomah County Detention Center where he was booked for Frequenting, a misdemeanor under Or. Rev. Stat. § 167.222, and subsequently released. PPB left the residence in the care of plaintiff's friend, Allyssa Sudre. Plaintiff's booking photo was later published. The Multnomah County District Attorney's Office ultimately determined it could not meet the requisite burden of proof and dismissed the charges against plaintiff.
Mr. Spillers was also arrested based on evidence collected by PPB during the search, including drugs found in several locations throughout the compound. Porter Decl. Ex. 2, at 6, 22, 36-42 (doc. 18). He was subsequently convicted in association with these events. Porter Decl. Ex. 1, at 35 (doc. 18); Mota Decl. ¶¶ 25-28 (doc. 25).
On December 17, 2021, plaintiff initiated this lawsuit alleging the following claims under 42 U.S.C. § 1983: (1) unlawful search; (2) unlawful seizure of person and property; (3) unlawful arrest; and (4) municipal liability. Compl. ¶¶ 19-43 (doc. 1). Plaintiff additionally raises claims under Oregon common law for conversion, defamation, and negligence. Id. at ¶¶ 44-53.
Defendants initially moved for summary judgment on September 28, 2023, arguing: (1) “the time to amend has expired [in regard to the] claims against Does 1-10”; (2) plaintiff's “claims based on the Fourteenth Amendment [are] redundant as a matter of law”; (3) “[c]laims regarding the legality of the Plaintiff's residence search and arrest lack corroborating evidence”; (4) “SERT's actions, which resulted in property damage, were a lawful execution of the authority granted by the warrant and were proportional to their responsibility to maintain officer safety and operational efficiency” (5) qualified immunity attached; (6) “respondeat superior liability is not appropriate” and plaintiff “presents no evidence of a pattern, practice, or custom by the City that resulted in [his] alleged harm”; and (7) plaintiff's state law claims are defective. Defs.' Mot. Summ. J. 4-6 (doc. 17).
On October 23, 2023, the parties notified the Court they had settled in principal. The Court thus instructed the parties to “submit Final Papers on or before 11/6/2023.” Order (Oct. 23, 2023) (doc. 29).
On December 22, 2023, having heard nothing further from the parties, the Court instructed the parties “to file a formal Joint Status Report by 12/28/2023 to advise as to the status of this case and to propose a revised deadline for the filing of Final Papers, if it is still appropriate.” Order (Dec. 22, 2023) (doc. 30). The Joint Status Report indicated the parties had finalized a settlement agreement but they could not submit a proposed judgment as plaintiff's approval and signature remained outstanding. The parties additionally specified they “have diligently worked towards a resolution” but, “[d]espite Plaintiff's counsel's best efforts to meet with Plaintiff, the Plaintiff has been unavailable in the period following the notification of settlement.” Joint Status Rep. 2 (doc. 31). The Court extended the deadline for submitting Final Papers to January 31, 2024.
On February 9, 2024, defendants sought to reinstate their summary judgment motion due to plaintiff's unresponsiveness. On February 26, 2024, the Court granted defendants' motion after plaintiff neglected to file a timely opposition. Accordingly, a briefing schedule was set, pursuant to which plaintiffs “[r]esponse to [defendants'] motion for summary judgment [was] due by 3/15/2024.” Order (Feb. 26, 2024) (doc. 36). As of the date of this Findings and Recommendation, plaintiff has not filed a response or otherwise opposed defendants' summary judgment motion.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
This dispute centers on whether defendants' search and seizure of plaintiff's property, and his subsequent arrest, violated plaintiff's state and/or federal rights. As an initial matter, the Court notes that plaintiff's failure to prosecute his claims is, alone, sufficient to grant summary judgment. See Anderson, 477 U.S. at 252 (in order to defeat a motion for summary judgment “there must be evidence on which the jury could reasonably find for the [non-moving party]”); see also Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted).
I. Federal Claims Against Individual Officers
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct complained of deprived him or her of an existing federal constitutional or statutory right; and (2) the conduct was committed by a state actor or a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). It is undisputed that defendants qualify as state actors for the purposes of 42 U.S.C. § 1983.
Qualified immunity shields government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To determine whether a government actor is entitled to qualified immunity, the court evaluates, in no particular order, whether: (1) the alleged misconduct violated a right; and (2) that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Fourteenth Amendment Claims
In addition to the Fourth Amendment, plaintiff asserts two 42 U.S.C. § 1983 claims under the Fourteenth Amendment's Due Process Clause related to the alleged unlawful seizure of his property. Compl. ¶¶ 23-26, 35-38 (doc. 1). However, it is well-established that, if a constitutional claim “is covered by a specific constitutional provision,” it should not be analyzed under due process. United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); see also Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (“the validity of an arrest must be analyzed under Fourth Amendment standards, not due process standards”). Defendants' motion is granted in this regard.
B. Doe Defendants
It is undisputed plaintiff's cause of action arose on December 17, 2019, and that his complaint was filed exactly two years later. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2004) (42 U.S.C. § 1983 claims are subject to a two year statute of limitations in Oregon under Or. Rev. Stat. § 12.110); see also Clavette v. Sweeney, 132 F.Supp.2d 864, 875 (D. Or. 2001) (claims accrue at the time of the injury, irrespective of the fact that the plaintiff may not know the arresting officer's “identity until a later point in time,” where the plaintiff “was aware of his alleged injuries when they occurred [and] knew Portland police officers allegedly inflicted the injuries”). Further, the statutory limitations period has lapsed, such that an amendment would be timely only if it relates back to the original pleading.
Plaintiff's Doe allegations are fatally flawed in two respects. First, plaintiff has not made any attempt at amendment, such as filing a separate motion seeking amendment or providing a copy of the proposed pleadings as required by the Local Rules. See LR 7-1(b) (“[e]very motion must . . . be stated in a separate section under the heading ‘Motion' [and] may not be combined with any response, reply, or other pleading”); LR 15-1 (any motion to amend “must describe the proposed changes” and include as an exhibit “[a] copy of the proposed amended [that shows] how the amended pleading differs from the operative or superseded pleading”); see also Wasco Prods.,Inc., v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.), cert. denied, 549 U.S. 817 (2006) (“summary judgment is not a procedural second chance to flesh out inadequate pleadings”) (citation and internal quotations omitted).
Second, and relatedly, the relevant deadlines in the Court's Scheduling Order have lapsed. Where amendment is sought after the deadline expired, the moving party “must first show good cause for amendment under Rule 16(b), then, if good cause be shown, the party must demonstrate that amendment was proper under Rule 15(a).” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) (citation and internal quotations omitted). “Carelessness is not compatible with a finding of diligence” and the Ninth Circuit has routinely denied motions to amend filed after the scheduling order cut-off date solely on the basis of untimeliness. Id. at 609 (collecting cases).
Thus, irrespective of whether the federal or state relation back rules apply, the Doe defendants must be dismissed, as plaintiff neglected to provide any argument or evidence regarding the salient requirements of Fed.R.Civ.P. 15(c)(1) or Or. R. Civ. P. 23. See Manns v. Lincoln Cnty., 2018 WL 7078672, *3 (D. Or. Dec. 12, 2018), adopted by 2019 WL 267708 (D. Or. Jan. 17, 2019) (“it is Plaintiff's burden to show relation back” and the second requirement of Fed.R.Civ.P. 15(c)(1) is unmet where “no actual evidence of notice [is offered]”) (citation and internal quotations omitted); see also Finicum v. United States, 2021 WL 3502462, *8-9 (D. Or. Aug. 5, 2021) (surveying relevant case law to conclude “[r]eplacing a ‘John Doe' defendant with the actual name of a defendant is not a ‘mistake' that allows relation back under Rule 15(c)(1)”) (citation and internal quotations omitted).
C. Qualified Immunity
Even assuming plaintiff retained claims against individually named PPB officers, the Court nonetheless finds that summary judgment is warranted on the basis of qualified immunity. A right is clearly established if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741. The dispositive inquiry is whether the officers had “fair warning” that the detention was unlawful given the “particularized facts of the case.” Id. at 740 (citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”) (citation and internal quotations omitted).
It is undisputed that PPB had a warrant to search the Harney Street property based on an investigation into drug activity that had begun several months earlier. Congdon Decl. ¶¶ 3-13 (doc. 27). It is also undisputed that a second warrant was obtained in consultation with a Multnomah County Deputy District Attorney to search plaintiff's safes. Id. at ¶¶ 23-24, 27, 29; Mota Decl. ¶¶ 5, 15-16 (doc. 25). Defendants have additionally put forth uncontradicted evidence that: (1) when the warrant was served by SERT, the residents failed to comply for nearly an hour; (2) plaintiff was uncooperative in providing keys and safe combinations; (3) none of plaintiff's coins were seized; (4) the property damaged - i.e., broken doors, safes, security cameras, and vehicle windows - occurred during the search phase because alternative methods were unavailable; (6) probable cause existed “to believe 12 individuals located on the property had committed the crime of frequenting”; and (7) the search of Harney Street property resulted in the conviction of Mr. Spillers. Livingston Decl. ¶¶ 4, 6-8, 10-11, 13-15 (doc. 19); Hertzler Decl. ¶¶ 3-5, 9-12 (doc. 20); Baldwin Decl. ¶¶ 11-13 (doc. 21); Darby Decl. ¶¶ 5-12, 14-19 (doc. 23); Mota Decl. ¶¶ 5-18, 20, 25-28 (doc. 25); Staples Decl. ¶¶ 3-5, 7-15, 17-21 (doc. 26); Congdon Decl. ¶¶ 17, 22, 21-30 (doc. 27).
Plaintiff does not address this evidence or attempt to contest it. Moreover, the complaint's allegations surrounding a lack of probable cause are insufficient to salvage his § 1983 claims for two reasons. First, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden on proof at trial.” Celotex, 477 U.S. at 322; see also Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1116 (9th Cir. 2003) (“conclusory allegations, unsupported by facts, are insufficient to survive a motion for summary judgment”).
Second, “[t]he doctrine of qualified immunity does not require that probable cause to arrest exist.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir. 1991). And the Supreme Court has repeatedly instructed lower courts not to define clearly established law at a high level of generality. See, e.g., Mullenix, 577 U.S. at 12; White v. Pauly, 580 U.S. 73, 79 (2017); cf. Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (“it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force [under Graham], deny qualified immunity, and then remit the case for a trial on the question of reasonableness”).
Plaintiff has not cited to any authority even arguably indicating that defendants were on fair notice that their actions violated a clearly established law, and the weight of relevant, persuasive authority is to the contrary. See Allen v. Bamford, 2017 WL 2293349, *4 (D. Or. May 25, 2017) (granting summary judgment in favor of police officers in regard to an allegedly wrongful arrest, noting that qualified immunity protects an officer's “discretionary decisions [even if those decisions are not] the best decision or even a fair one”); Dist. of Columbia v. Wesby, 138 S.Ct. 577, 588-91 (2018) (reversing the lower court, explaining it erred by not “considering the facts as a whole [and instead taking] them one by one” and “dismiss[ing] outright any circumstances that were susceptible of innocent explanation,” and granting qualified immunity to the arresting officers where the plaintiffs never identified a single precedent - much less a controlling case or robust consensus of cases - finding a Fourth Amendment violation “under similar circumstances”) (citations and internal quotations omitted); see also United States v. Banks, 540 U.S. 31, 43 (2003) (“where the officers knocked and announced their presence, and forcibly entered [using a battering ram to break down the door] after a reasonable suspicion of exigency had ripened, their entry satisfied . . . the Fourth Amendment, even without refusal of admittance”).
Finally, it is undisputed that defendants' detention decision was premised, at least in part, on the legal advice obtained from a Multnomah County Deputy District Attorney. Mota Decl. ¶¶ 1, 3, 5, 20 (doc. 25); see also Ewing v. City of Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009) (“[a]lthough following an attorney's advice does not automatically cloak officers with qualified immunity, it can show the reasonableness of the action taken”) (citations and internal quotations and brackets omitted). In sum, the Court cannot find that it would have been clear to an officer confronting an analogous situation that their actions were “plainly incompetent or [a knowing violation of] the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). As such, the individual officers are entitled to qualified immunity.
II. Municipal Liability Claim
A government entity may not be held vicariously liable for the unconstitutional acts of its employees under 42 U.S.C. § 1983. Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 692-94 (1978). To establish municipal liability, the plaintiff must demonstrate: (1) he was deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiff's constitutional rights; and (4) the policy, custom, or practice was the “moving force” behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted).
A plaintiff may establish that the policy, custom, or practice was the cause of injury in three ways: (1) “a city employee committed the alleged constitutional violation pursuant to [either] a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity”; (2) “the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy”; or (3) “an official with final policymaking authority ratified a subordinate's unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citations and internal quotations omitted).
Plaintiff alleges the City had a “policy and/or custom allowing its police officers to use [unlawful search and seizure tactics] in the course of police investigations.” Compl. ¶ 41 (doc. 1). Yet defendants have presented un-contravened evidence that both probable cause and valid warrants existed to search the Harney Street property, including the safes, which in turn resulted in some property damage incidental to the search and the seizure of evidence and individuals. Plaintiff has not put forth any argument or evidence relating to any other searches or seizures, constitutional or otherwise. Cf. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy”). Defendants' motion is granted as to plaintiff's § 1983 claims.
III. State Law Claims
In addition to his federal claims, plaintiff asserts three state law claims for conversion, defamation, and negligence. “A district court may sua sponte decide whether to continue exercising supplemental jurisdiction over a Plaintiff's state law claims.” Feezor v. Patterson, 896 F.Supp.2d 895, 904 (E.D. Cal. 2012), aff'd, 596 Fed.Appx. 558 (9th Cir. 2015) (citations and internal quotations and brackets omitted). Where, as here, a district court dismisses “all claims over which it has original jurisdiction,” it may, in its discretion, “decline to exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c)(3); Lacey v. Maricopa Cnty., 693 F.3d 896, 940 (9th Cir. 2012).
This discretion “enables district courts to deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988). Significantly, the Supreme Court has stated, and the Ninth Circuit has “often repeated, that in the usual case in which all federal-law claims are eliminated before trial, the balance of [these factors] will point toward declining to exercise jurisdiction over the remaining state-law claims.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (citation and internal quotations omitted).
The primary argument defendants raise in regard to plaintiff's state law claims is the lack of evidentiary support. And, as addressed herein, plaintiff failed to respond to defendants' motion. Nevertheless, the Court notes that this case had previously been reported as settled (indicating that some monetary relief may be warranted). And, in any event, the weight afforded to economy and convenience factors is generally “only slight as there are no great hurdles to either party from litigating this case in state court, where the litigants can pick up where this Court leaves off.” Erwine v. Churchill Cnty., 2022 WL 705961, *10 (D. Nev. Mar. 9, 2022), aff'd, 2023 WL 2387584 (9th Cir. Mar. 7, 2023).
Regarding fairness to the litigants, this factor “does not favor either way as the parties can reach a fair verdict in state court.” Id. Finally, comity greatly favors remand as the remaining claims are brought under state law and alleged against the City and its employees. Thus, at this stage in the proceedings, issues of Oregon common law will necessarily predominate in any trial. And, given the length and circumstances of plaintiff's arrest and detainment, coupled with the fact that plaintiff has put forth scant evidence indicating that he sustained damages as a result of defendants' actions, the remaining claims appear to be best suited to resolution in state court. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law”).
The Court therefore declines to exercise pendent jurisdiction and plaintiff's state law claims are remanded. See Tuggle v. City of Tulare, 2023 WL 4273900, *19 (E.D. Cal. June 29, 2023) (declining supplemental jurisdiction where the plaintiff's § 1983 claims were resolved at summary judgment); Foxfield Villa Assocs., LLC v. Robben, 967 F.3d 1082, 1102-03 (10th Cir. 2020) (district court did not abuse its discretion in declining to exercise supplemental jurisdiction, even though “nearly four years ha[d] passed since [the plaintiffs] filed their relevant complaint” and the parties had “engaged in a great deal of discovery and filed many motions,” because “copious state law issues warranted a Kansas state court's consideration in the absence of the sole federal claim”); see also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-41 (2009) (“[w]hen a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction” but rather “on its discretionary choice not to hear the claims”).
RECOMMENDATION
For the reasons stated herein, defendants' Motion for Summary Judgment (doc. 17) should be granted as to plaintiff's federal claims and the remaining state law claims should be remanded to state court. Defendants' request for oral argument is denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.