Opinion
Civil No. 03-933-AS.
March 9, 2004
FINDINGS AND RECOMMENDATION
Plaintiff, who is presently incarcerated at Snake River Correctional Institution, brought a civil rights action, asserting that excessive force was used during his arrest. Specifically, plaintiff alleges two claims: (1) a civil rights violation of the "14[th] Amendment to the United States Constitution the Right to be free [from] unjustified and excessive use of unlawful force"; and (2) a civil rights violation of "Article 1, Section 13 16 Oregon Constitution."
Plaintiff originally named K-9 police dog Ivon as a defendant, but those claims were dismissed by order of July 17, 2003. The remaining defendant, Police Officer Daryl Woods, has moved for an order dismissing the action against him with prejudice, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1915(e)(2), on the ground that the Complaint fails to state a claim against him for which relief can be granted (docket No. 12). By order of November 25, 2003, the court gave notice to the parties that it would treat defendant's motion to dismiss as one for summary judgment and provided the parties time to submit additional materials. This motion is currently before the court.
OREGON CONSTITUTIONAL CLAIM
In "Claim II," plaintiff alleges that his civil rights under the Oregon Constitution were violated. Specifically, he alleges a violation of his rights under Article 1, Sections 13 and 16. Complaint, p. 4. These sections of the Oregon Constitution's Bill of Rights provide:
"Section 13. Treatment of arrested or confined person. No person arrested, or confined in jail, shall be treated with unnecessary rigor."
"Section 16. Excessive bail and fines; cruel and unusual punishments; power of jury in criminal case. Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportionate to the offense. — In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases."
As a preliminary matter, no materials outside the pleadings were offered, or need be considered, to rule on defendant's motion to dismiss this claim. That is because the Oregon Supreme Court has concluded that "[v]iolation of a state constitutional right does not per se result in a civil or criminal sanction."Hunter v. City of Eugene, 787 P.2d 881, 883 (Or. 1990). The court explained, "Oregon's Bill of Rights provides no textual or historical basis for implying a right to damages for constitutional violations. . . . Neither can we impute from the Tort Claims Act any intent on the part of the legislature to create or recognize such a cause of action against the city or its servants." Id. Thus, the court held that
"persons whose rights under Article I, section 8, of the Oregon Constitution are violated by a municipality or its employees may not bring an action for damages against the municipality or its employees directly under the constitution, but will be limited to existing common-law, equitable, and statutory remedies."Id. at 884. Citing Hunter, another court in this district has dismissed claims brought under Article I, sections 9, 10 and 12, of the Oregon Constitution. Juran v. Independence Oregon Central School Dist., 898 F. Supp. 728, 730 (D. Or. 1995). The court explained that "the appropriate remedy for constitutional violations by public bodies, officers, employees and agents is the Oregon Tort Claims Act, ORS 30.260 — 30.300." Id. (citing Nelson v. Lane County, 743 P.2d 692, 697-98 (Or. 1987)).
Thus, "Claim II," which alleges violations of plaintiff's rights under Article I, Sections 13 and 16, of the Oregon Constitution, must be dismissed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief may be granted.
In contrast to plaintiff's claim under the Oregon Constitution, defendant offers materials outside the pleadings in support of its motion to dismiss plaintiff's claim under the federal constitution. As such, the motion was converted to one for summary judgment.
SUMMARY JUDGMENT STANDARD
When considering a motion for summary judgment, the district court's role is not to weigh the evidence, but merely to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, the court determines that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(e); Vander v. United States Dept. of Justice, 268 F.3d 661, 663 (9th Cir. 2001).
A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must persuade the court through "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Only after the moving party has made such a showing does the burden shift to the opposing party to show that a genuine issue of fact remains. See Fed.R.Civ.P. 56(e).
DISCUSSION
Defendant requested the court to consider evidence beyond the pleadings in support of its motion to dismiss. Consequently, the court gave notice to the parties by order of November 25, 2003, that it would treat defendant's motion to dismiss as one for summary judgment and allowed the parties until December 29, 2003, to submit additional materials (Doc. No. 18). See Anderson v. Angelone, 86 F.3d 932, 934-35 (9th Cir. 1996) (when motion to dismiss for failure to state a claim is converted to one for summary judgment, the parties must be notified and given a reasonable opportunity to present evidence). Neither party submitted additional materials, the defendant choosing to rely on evidence submitted with the original motion, of which it was requested the court take judicial notice.
A verified complaint, such as plaintiff's, may be treated as an affidavit to oppose summary judgment to the extent it is based on personal knowledge and sets forth specific facts admissible in evidence. Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996). Plaintiff alleges, in relevant part:
"On 7-27-01 in Salem OR I eluded several police officer[s] including Officer [Darrell] Woods and his K-9 partner Ivon. After I turned down a dead end street, I stopped the truck I was driving and after being ordered to do so I stepped out of the truck. Without any kind of warning Officer [Darrell] Woods released by keyless remote the door for his K-9 partner Ivon. The said K-9 attacked me causing me several lacerations on my wrist and upper thigh, requiring at least 20 staples to close. Officer Woods released his K-9 partner for no justifiable reason!"
Complaint, p. 3. Plaintiff also attacks the credibility of the police report filed by Officer Woods. Id.
Defendant relies on several unidentified and unauthenticated "exhibits," attached to the memorandum in support of the motion. These include what appear to be: (1) photographs of plaintiff's injuries; (2) Officer Woods' police report and underlying documents, including handwritten notes; and (3) a printout, which may be from the in-car Mobile Data Terminal access to LEDS [Law Enforcement Data System], which defendant asserts indicates that plaintiff had outstanding misdemeanor and felony warrants when he was arrested. See Memorandum of Law In Support of Defendants' Motions to Dismiss Complaint, p. 8. Defendant asks the court to take judicial notice of these documents, relying on Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001).
While Lee does recognize that, pursuant to Federal Rule of Evidence 201, a court may take judicial notice of matters of public record in ruling on a motion to dismiss or a motion for summary judgment, Lee also recognizes that a court may not take judicial notice of the truth of disputed factual matters. Id. at 688-89. Thus, while the court arguably may take judicial notice of the fact that there is a police report, it may not take judicial notice of any disputed facts contained in the report. See id. at 689-90 (court may take notice of the fact that a waiver of extradition form exists, but may not take judicial notice of its validity). Where, as here, plaintiff challenges the validity of statements contained in the police report, the court may not take judicial notice of the challenged facts in ruling on a motion for summary judgment. See Pina v. Henderson, 752 F.2d 47, 50 (2d Cir. 1985) (police report not properly the subject of judicial notice), noted in U.S. v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003).
The documents attached to defendant's brief are not otherwise admissible because they are not properly authenticated:
"It is well settled that unauthenticated documents cannot be considered on a motion for summary judgment. In order to be considered by the court, documents must be authenticated by and attached to an affidavit that meets the requirements of [ Fed.R.Civ.P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. This court has consistently held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment."Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) (internal quotation marks and citations omitted); see also Orr v. Bank of America, NT SA, 285 F.3d 764, 773 (9th Cir. 2002). Thus, the unauthenticated exhibits attached to defendant's memorandum may not properly be made part of the summary judgment record, and consequently, summary judgment may not be granted in defendant's favor at this time.
Though summary judgment is not warranted at this time, defendant's motion to dismiss this claim has merit on another basis. Defendant argues that plaintiff has failed to state a claim for relief, because plaintiff alleged that excessive force used during his arrest violated the Fourteenth, rather than the Fourth, Amendment. It is established that use of excessive force in the course of an arrest violates the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). Thus, plaintiff's claim, as alleged under the Fourteenth Amendment, should be dismissed without prejudice on the ground that it fails to state a claim for which relief may be granted.
CONCLUSION
For the foregoing reasons, defendant's motion (docket No. 12) should be granted. In light of the inadmissibility of defendant's evidence, as submitted, plaintiff's excessive force claim should be dismissed for failure to state a claim, rather than on summary judgment. Because it is not absolutely clear that no amendment can cure the defects in plaintiff's complaint, plaintiff should be given leave to amend. In sum, plaintiff's claims should be dismissed without prejudice on the ground that each fails to state a claim for which relief may be granted.SCHEDULING ORDER
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due March 24, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due April 7, 2004, and the review of the Findings and Recommendation will go under advisement on that date.