Am. Reply, ECF 82 at 13. Defendants point this Court to a string of cases from the District of Oregon holding as such. Id. (first citing Whitfield v. Tri-Metro. Transp. Dist., Civil No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009); then citing Rodrigues v. Jackson County, No. 1:13-CV-01589-CL, 2015 WL 404577, at *4 (D. Or. Jan. 29, 2015); then citing Woods v. Gutierrez, No. 3:11-CV-01082-BR, 2012 WL 6203170, at *12 (D. Or. Dec. 12, 2012); then citing Shilo v. City of Portland, No. CV 04-130AS, 2005 WL 3157563, at *2 (D. Or. Nov. 22, 2005); then citing Aranda v. City of McMinnville, 942 F.Supp.2d 1096, 1110 (D. Or. 2013); and then citing Saberi v. City of Portland, No. CV 04-1396-MO, 2006 WL 2707995, at *4 (D. Or. Sept. 18, 2006)).
Courts in this district have held that state common-law claim of negligence “may be maintained separately from a § 1983 claim only when the negligence claim is based on facts that are different from the facts on which . the § 1983 claims are based.” Whitfield v. Tri-Metro. Transp. Dist., CIV 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009).
. In its reply, the County urges the Court to apply the reasoning of Whitfield v. Tri-Metro. Transp. Dist., No. CIV 06-1655-HA, 2009 WL 839484, at *10 (D. Or. Mar. 30, 2009) to reject Bratcher's negligence claim. (Cnty. Reply at 11.)
Numerous judges in this district, including this Court, have held a negligence claim cannot be based on the same set of facts as a constitutional claim. See, e.g., Daley v. McKoy, No. 3:17-cv-00718-BR, 2018 WL 2470984, at *6-7 (D. Or. May 31, 2018); Gregory v. City of Newberg, No. 3:15-CV-00473-BR, 2015 WL 5577755, at *7-8 (D. Or. Sept. 21, 2015); Rodrigues v. Jackson Cty., No. 1:13-CV-01589-CL, 2015 WL 404577, at *3-*4 (D. Or. Jan. 29, 2015); Frank v. Cascade Healthcare Cmty., Inc., No. 6:11-cv-06402-AA, 2013 WL 867387, at *5 n.5 (D. Or. Mar. 6, 2013); Woods v. Gutierrez, No. 3:11-CV-01082-BR, 2012 WL 6203170, at *12 (D. Or. Dec. 12, 2012); Barringer v. Clackamas Cty., No. CV 09-068-AC, 2010 WL 5349206, at *9 (D. Or. Nov. 22, 2010); Hadley v. City of Beaverton, No. CV-09-022-ST, 2010 WL 1257609, at *14 (D. Or. Feb. 16, 2010); Whitfield v. Tri-Metro. Transp. Dist., No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009). As Magistrate Judge Paul Papak explained, however, in a Findings and Recommendation adopted by this Court that even though the “broad language from those cases seems to support [the] argument that [a] negligence claim cannot be based on the same set of facts as [any constitutional] claim[], . . . that argument falls apart upon closer examination” of the case law.
The City is entitled to summary judgment on Dickerson's negligence claim. Courts in this district have consistently held that negligence claims are barred from proceeding to trial when the negligence claim is based on the same operative facts as the Section 1983 claim. SeeDaley v. McKoy, No. 3:17-cv-00718-BR, 2018 WL 2470984, at *6-7 (D. Or. May 31, 2018); Rodrigues v. Jackson Cty., No. 1:13-CV-01589-CL, 2015 WL 404577, at *3-4 (D. Or. Jan. 29, 2015); Frank v. Cascade Healthcare Cmty., Inc., No. 6:11-cv-06402-AA, 2013 WL 867387, at *5 n.5 (D. Or. Mar. 6, 2013); Woods v. Gutierrez, No. 3:11-CV-01082-BR, 2012 WL 6203170, at *12 (D. Or. Dec. 12, 2012); Barringer v. Clackamas Cty., No. CV 09-068-AC, 2010 WL 5349206, at *9 (D. Or. Nov. 22, 2010); Hadley v. City of Beaverton, No. CV-09-022-ST, 2010 WL 1257609, at *14 (D. Or. Feb. 16, 2010); Whitfield v. Tri-Metro. Transp. Dist., No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009); Saberi v. City of Portland, No. CV 04-1396-MO, 2006 WL 2707995, at *4 (D. Or. Sept. 18, 2006). Although at least one decision in this district has challenged this long-standing rule, seeJohns v. City of Eugene, No. 6:16-cv-00907-AA, 2018 WL 634519 (D. Or. Jan. 30, 2018), rev'd on other grounds, 771 F. App'x 739 (9th Cir. 2019), the Court concludes that the facts of the present case align more closely with the principles outlined in Shilo and its progeny than Johns.
Defendants are correct that, for the past thirteen years, is has been the District of Oregon's consistent practice to bar negligence claims from proceeding to trial under such circumstances. See Gregory v. City of Newberg, 2015 WL 5577755, *8 (D. Or. Sept. 21, 2015); Rodrigues, 2015 WL 404577 at *4; Frank v. Cascadia Healthcare Cmty., Inc., 2013 WL 867387, *5 n.5 (D. Or. Mar. 6, 2013); Woods v. Gutierrez, 2012 WL 6203170, *12 (D. Or. Dec. 12, 2012); Barringer v. Clackamas Cty., 2010 WL 5349206, *9 (D. Or. Nov. 22, 2010); Hadley v. City of Beaverton, 2010 WL 1257609, *14 (D. Or. Feb. 16, 2010); Whitfield v. Tri-Metropolitan Transp. Dist., 2009 WL 839484, *11 (D. Or. Mar. 30, 2009); Saberi v. City of Portland, 2006 WL 2707995, *4 (D. Or. Sept. 18, 2006); Shilo v. City of Portland, 2005 WL 3157563, *1-*2 (D. Or. Nov. 22, 2005); but see Rodriguez v. City of Portland, 2009 WL 3518004, *2 (D. Or. Oct. 21, 2009) (limiting this practice to the summary judgment stage and permitting negligence and § 1983 claims predicated on the same facts to proceed to discovery). Some of the cases listed above have suggested that this principle is settled law.
In this district courts have held "a state common-law claim of negligence may be maintained separately from a § 1983 claim only when the negligence claim is based on facts that are different from the facts on which the § 1983 claims are based." Whitfield v. Tri-Metropolitan Transp. Dist., No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009)(citing Shilo v. City of Portland, Civ. No. 04-130-AS, 2005 WL 3157563, *1 (D. Or. Nov. 22, 2005)). The Court, therefore, granted Plaintiff leave to amend his negligence claim to the extent that he could allege a set of facts separate from those that form the basis for his § 1983 claims.
Although a plaintiff may plead alternative theories of liability under state common law and § 1983, courts in this district do not allow a plaintiff to proceed with a cause of action for negligence based solely on the same facts underlying his or her § 1983 claim. Whitfield v. Tri-Metro. Transp. Dist., 2009 WL 839484, at *10-11 (D. Or. Mar. 30, 2009). Here, Mr. Gainer bases his negligence claim on the same facts as his § 1983 claims.
Defendants assert Plaintiff's negligence claim fails because in this district "a state common-law claim of negligence may be maintained separately from a § 1983 claim only when the negligence claim is based on facts that are different from the facts on which the § 1983 claims are based." Whitfield v. Tri-Metropolitan Transp. Dist., No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009)(citing Shilo v. City of Portland, Civ. No. 04-130-AS, 2005 WL 3157563, *1 (D. Or. Nov. 22, 2005)). As the court explained in Shilo:
In addition, courts in this District have held that at later stages of litigation "a state common-law claim of negligence may be maintained separately from a § 1983 claim only when the negligence claim is based on facts that are different from the facts on which the § 1983 claims are based." Whitfield v. Tri-Metropolitan Transp. Dist., No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30, 2009). In Whitfield the court granted the defendant's motion for summary judgment as to the plaintiff's negligence claim that was based on the same operative facts as his claims under § 1983.