Opinion
Civil No. 00-1640-FR
December 17, 2001
Mervin Arnold and Nellie Arnold, Scappoose, Oregon, Plaintiffs Pro Se.
Robert S. Wagner, David C. Lewis, Miller Wagner, LLP, Portland, Oregon, Attorneys for Defendants City of Scappoose, Donald Zimmerman, Douglas Carpenter, and Norman Miller.
Steven A. Kraemer, Hoffman, Hart Wagner, LLP, Portland, Oregon, Attorneys for Defendant Margo Dew.
Michael A. Lehner, Lehner, Mitchell, Rodrigues Sears, LLP, Portland, Oregon, Attorneys for Defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts, and Mark Reed.
Rodney K. Norton, Legal Counsel, Oregon Health Sciences University, Portland, Oregon, Attorney for Defendants Oregon Health Sciences University, Jeffrey Greenbaum, and Betty Walls.
OPINION
The matters before the court are:
1) the motion of defendants City of Scappoose, Donald Zimmerman, Douglas Carpenter and Norman Miller for summary judgment (#53);
2) the motion of defendant Margo Dew for summary judgment (#58); and
3) the motion of defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts and Mark Reed for summary judgment (#59).
In addition, the court has carefully reviewed the numerous motions to strike related to the motions of the defendants named above for summary judgment.
BACKGROUND
The plaintiffs, Mervin Arnold and Nellie Arnold, representing themselves, filed this action against the following defendants: City of Scappoose, Margo Dew, Donald Zimmerman, Douglas Carpenter, Norman Miller, Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts, Mark Reed, Oregon Health Sciences University, Jeffrey Greenbaum, and Betty Walls.
The plaintiffs assert federal claims for relief pursuant to 42 U.S.C. § 1983 to redress a violation of their rights protected by the Fourth and Fourteenth Amendments to the United States Constitution, as well as state law claims for relief for invasion of privacy and intentional infliction of emotional distress.
FACTS
On December 2, 1998, Mervin Arnold parked his van against a building adjacent to the Scappoose Laundromat. The van had a broken tie rod. Mervin Arnold entered the laundromat and thereafter collapsed on the floor in a semi-comatose state.
Slightly after noon, Officer Donald Zimmerman arrived at the laundromat on a report of a man being down. Officer Zimmerman observed Mervin Arnold on the floor. In his police report, Officer Zimmerman states that Arnold's eyes were watery and bloodshot, his facial muscles were lax, his speech was slow and slurred, and he smelled strongly of alcohol.
An ambulance from the Scappoose Rural Fire Protection District was dispatched. Mark Reed, a volunteer emergency medical technician (EMT), and Jerry Watts, an EMT employed by the Scappoose Rural Fire Protection District, were dispatched to the laundromat to examine Mervin Arnold. The EMTs noted in their report that Arnold's speech was slurred, and that Arnold was unable to sit, stand or walk without assistance. Arnold stated that he had consumed alcohol of an unknown amount on that day.
While the EMT's examined Mervin Arnold, Officer Zimmerman examined Arnold's vehicle. Officer Zimmerman found that the engine was warm, and he did not see any alcohol in the interior or around the exterior of the vehicle. Officer Zimmerman requested assistance. Scappoose Police Officers Douglas Carpenter and Norman Miller and Scappoose Police Chief Margo Dew arrived.
Mervin Arnold states, in part, in his affidavit that "Officer[s] Douglas Carpenter and Zimmerman kicked me in my side while I was lying on the laundromat floor." Affidavit of Mervin Arnold in Opposition to Motions for Summary Judgment, pp. 2-3.
Officer Zimmerman returned to the laundromat and asked Mervin Arnold some questions, including whether he had been drinking. Officer Zimmerman states in his report that Arnold indicated that he had been drinking hard liquor at home and had been driving only a couple of moments ago.
Mervin Arnold admits in his affidavit that he had been driving his van prior to arriving at the laundromat, but states that he did not have a vehicle accident when the tie rod broke on his van. Arnold states, in part, in his affidavit: "I did not drink any alcohol on December 2, 1998." Id. at 2.
EMTs Watts and Reed found no sign of illness or injury and concluded that Mervin Arnold was probably suffering from alcohol intoxication. Watts and Reed then left the laundromat.
Officer Carpenter told Mervin Arnold that he was under arrest and asked Arnold to get up and get into the patrol car. Officer Zimmerman began tape recording the incident after notifying everyone he was going to do so.
Mervin Arnold's family began arriving at the laundromat. His family members were very agitated and demanded that an ambulance return. Police Chief Dew recalled the ambulance at the request of Arnold's family.
EMT Reed and EMT Watts arrived at the laundromat again. After reporting to the family that there was nothing medically wrong with Mervin Arnold, EMTs Reed and Watts transported Mervin Arnold to the Veteran's Administration Hospital (VA Hospital) at the request of Nellie Arnold. After delivering Mervin Arnold to the VA Hospital, EMT Watts left copies of the chart recording his course of treatment, and EMTs Reed and Watts left the VA Hospital. Officers Zimmerman and Miller followed the ambulance transporting Mervin Arnold and Nellie Arnold to the VA Hospital in the Scappoose Police Department patrol car. At about 1:25 p.m., Mervin Arnold was examined at the VA Hospital emergency room by Dr. Bishop. Dr. Bishop examined Mervin Arnold, noting that he was "[r]eported to have tagged [the] laundromat front, staggered into [the] laundromat and fell down." Exhibit 4 to Affidavit of David C. Lewis in Support of City of Scappoose Defendants' Motion for Summary Judgment, p. 2. Dr. Bishop reported the smell of alcohol present and determined that Mervin Arnold was intoxicated due to alcohol.
While Dr. Bishop was examining Mervin Arnold, Officer Zimmerman telephoned Columbia County Circuit Court Judge Ted E. Grove in order to obtain a warrant to draw Mervin Arnold's blood. Officer Zimmerman relayed information to Judge Grove representing that Arnold had admitted to driving a couple of moments before he collapsed at the laundromat; that Arnold had admitted to drinking alcohol; and that a medical evaluation had determined that Arnold's condition was solely attributed to alcohol consumption. Judge Grove made a finding of probable cause to believe that there was evidence of the crime of driving under the influence of intoxicants and granted a search warrant to take blood samples from Mervin Arnold.
The VA Hospital refused to honor the warrant and therefore refused to draw blood. Mervin Arnold was placed in the custody of Officer Zimmerman. Officer Zimmerman, Officer Miller, and a VA Hospital security guard placed Mervin Arnold in handcuffs and escorted him to the patrol car. They transported Arnold to the Oregon Health Sciences University (OHSU) for the blood draw. Nellie Arnold saw Mervin Arnold being taken to the patrol car. She was told by the emergency room staff that Mervin Arnold was being taken to OHSU, and she followed them.
At OHSU, Mervin Arnold was examined by Dr. Jeffrey Greenbaum and Registered Nurse Betty Walls. Dr. Greenbaum noted that Arnold "did appear to be intoxicated but he stated vehemently he had not been drinking today." Exhibit 7 to Affidavit of David C. Lewis, p. 2. At 2:55 p.m., Dr. Greenbaum performed the blood draw pursuant to the search warrant and obtained two vials of blood which he handed to Officer Zimmerman. Mervin Arnold refused any medical treatment and refused the opportunity to return to the VA Hospital to have a medical workup. OHSU released Mervin Arnold to the custody of the Scappoose Police Department. Arnold was again placed in handcuffs and transported back to Scappoose. On the way back to Scappoose, Officer Zimmerman dropped off the blood vials at the Oregon State Police Crime Laboratory. Once they arrived at the Scappoose Police Department, Mervin Arnold was fingerprinted, photographed, issued a citation for driving while under the influence, and released. The Oregon State Police forensic laboratory technician determined that Mervin Arnold's blood alcohol level at the time the blood sample was taken was 0.14 percent. Exhibit 9 to Affidavit of David C. Lewis.
Nellie Arnold states, in part, in her affidavit: "The next day, December 3, 1998, we couldn't get a VA appointment and was advised to go to the VA Emergency Room. Examined by Dr. Kim Kisor, we were informed Mervin was diabetic and /2/8 had been for a long time, according to their tests." Affidavit of Nellie Arnold in Opposition to Defendants' Motions for Summary Judgment, p. 8.
Mervin Arnold states in his affidavit that his relationship with the Scappoose City Police became strained for several reasons, none of which were a result of any wrongful acts on his part. Arnold explains that he has an organization with a registered assumed business name of "Citizens in Action" wherein both of the plaintiffs provide free information, educational tools, and limited aid to anyone who requests their assistance. Arnold states that often individuals have come to the plaintiffs by way of Citizens in Action to complain about being mistreated by local police officers. Arnold states that he has been involved in assisting individuals with complaints about mistreatment by the police. Affidavit of Mervin Arnold, pp. 4 5.
APPLICABLE STANDARD
Summary judgment should be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Assuming there has been adequate time for discovery, summary judgment should then 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 of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
ANALYSIS
1. City of Scappoose Defendants' Motion for Summary Judgment
Defendants City of Scappoose, Donald Zimmerman, Douglas Carpenter, and Norman Miller move the court for judgment as a matter of law because the plaintiffs fail to state claims for violations of their constitutional rights, and there is no basis for equitable relief. The defendants contend that at all times during their encounter with Mervin Arnold, the defendants had probable cause to believe that Mervin Arnold had committed the crime of driving while intoxicated. The defendants contend that their actions were lawful, including the search of the plaintiffs' vehicle and wallet, as well as the blood draw pursuant to the warrant. The defendants contend that there is no evidence of excessive force, no evidence of any violation of equal protection, and no evidence of any conspiracy or any other constitutional violation against either Mervin Arnold or Nellie Arnold.
The plaintiffs contend that Officer Zimmerman obtained the search warrant for Arnold's blood sample by lying in his affidavit. The plaintiffs contend that Officer Zimmerman falsely stated to the judge that in response to Officer Zimmerman's question, "Have you consumed alcohol?" Officer Zimmerman falsely stated that Arnold answered, "Yes," when Arnold answered, "No." Arnold contends that the blood sample is unreliable because he had been injected intravenously with insulin and other drugs by OHSU personnel and because the blood sample was obtained through fraud committed by Officer Zimmerman.
In his complaint, Mervin Arnold alleges six claims for relief against defendants City of Scappoose, Donald Zimmerman, Douglas Carpenter, and Norman Miller as follows: the first, second, fourth and fifth claims for relief under 42 U.S.C. § 1983; the sixth claim for relief for invasion of privacy; and the seventh claim for relief for the intentional infliction of emotional distress.
A. First, Second, Fourth and Fifth Claims for Relief Under 42 U.S.C. § 1983
Section 1983 permits an individual whose federal statutory or constitutional rights have been violated by public officials acting under color of state law to sue the officials for damages. 42 U.S.C. § 1983 (2000). In the first, second, fourth and fifth claims for relief under 42 U.S.C. § 1983, Mervin Arnold claims violations of his First, Fourth, Fifth and Fourteenth Amendment rights under the United States Constitution arising out of his arrest by the defendants on December 2, 1998.
The Arrest
Probable cause is a practical, common-sense decision requiring a reasonable belief evaluated in light of the officers' experience and a practical consideration of every day life. Illinois v. Gates, 462 U.S. 213, 231 (1983). Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to lead a prudent person to believe the suspect has committed, is committing, or is about to commit a crime. Mackinney v. Nielsen, 69 F.3d 1002, 1005 (9th Cir. 1995).
Officer Zimmerman knew that Mervin Arnold had been driving his van moments before he was found collapsed on the floor of the Scappoose Laundromat; that Arnold was in a semi-comatose state wavering in and out of awareness; that there was an odor which smelled like alcohol; that the EMTs concluded that Arnold was possibly intoxicated; and that subsequent medical care determined that Arnold was intoxicated due to the consumption of alcohol. The court finds that these police officers had probable cause to arrest Mervin Arnold for driving while intoxicated.
The Searches
The search of Mervin Arnold's wallet to obtain his identification was a search incident to a valid arrest. See United States v. Passaro, 624 F.2d 938, 943-44 (9th Cir. 1980). The blood draw from Mervin Arnold was conducted pursuant to a lawful search warrant. Arnold denies telling Officer Zimmerman that he had been drinking that day as Officer Zimmerman represented to the Circuit Court Judge who authorized the warrant.
In order to avoid summary judgment on this issue, plaintiff Mervin Arnold must "both establish a substantial showing of a deliberate falsehood or reckless disregard and establish that, without the dishonesty included or omitted information, the magistrate would not have issued the warrant." Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995) (emphasis in original). Plaintiff Mervin Arnold has not established either in this case. The record in this case contains a reference by a number of persons that Arnold told them he had been drinking. EMT Watts noted in his report that Arnold told him at the laundromat that he had been drinking. Dr. Bishop at the VA Hospital noted in his report that Arnold told him that he had consumed liquor that morning.
Even without the statement made by Officer Zimmerman to the judge that Mervin Arnold had admitted to drinking alcohol, the remaining information was sufficient to authorize the issuance of the warrant. Arnold had parked his vehicle up against a building; had had fallen down around the corner in the laundromat; he smelled of the odor of alcohol; he had admitted drinking alcohol to the EMT; and the EMT had found his medical condition to be solely attributed to alcohol consumption. These facts are sufficient for a judge to issue a warrant of arrest.
Excessive Force
The only evidence in the record to support an excessive force claim under the Fourth Amendment is the following statement of Mervin Arnold in his affidavit: "Both Officer Douglas Carpenter and Zimmerman kicked me in my side while I was lying on the laundromat floor." Affidavit of Mervin Arnold, pp. 2-3. Arnold further admits that he was in a semi-comatose state at the time. The police officers deny kicking Arnold; no one else witnessed the event; and there is no mention in the subsequent medical treatment report about such an injury. The court finds that the plaintiffs have not come forward with evidence sufficient to create a genuine issue of material fact as to a Fourth Amendment violation of Arnold's constitutional rights for excessive force.
Other Claims
Finally, the court has reviewed the record and concludes that there are no facts to support a claim for the violation of Mervin Arnold's constitutional rights based upon compelled medical care or some type of conspiracy. Arnold's assertion in his affidavit that he has a strained relationship with the Scappoose City Police does not change the fact that there was probable cause for the police to arrest him on December 2, 1998. There are no facts to support a finding of misconduct on the part of the police officers effecting the arrest of Mervin Arnold.
Defendants City of Scappoose, Donald Zimmerman, Douglas Carpenter, and Norman Miller are entitled to summary judgment on the plaintiffs' first, second, fourth and fifth claims for relief under 42 U.S.C. § 1983.
B. Sixth Claim for Relief for Invasion of Privacy
Mervin Arnold asserts a state law claim for relief for the invasion of his privacy. He alleges:
Officer Zimmerman violated plaintiff Mervin's right to privacy guaranteed to Mervin under the Fourth Amendment to the Constitution when Zimmerman removed Mervin's Social Security card, which Zimmerman had obtained from Mervin's wallet in Zimmerman's possession in his City of Scappoose Police patrol car without Mervin's knowledge or consent, and published that Social Security number by supplying it to defendants Watts and Reed and through publication of Mervin's Social Security number to a large number of people by Zimmerman under color of law without Mervin's knowledge or consent.
Complaint, p. 25.
There are no facts to support a constitutional or tort claim in this case.
C. Seventh Claim for Relief for the Intentional Infliction of Emotional Distress
There is no evidence in this record to support a claim for the intentional infliction of emotional distress against defendants City of Scappoose, Donald Zimmerman, Douglas Carpenter, and Norman Miller.
D. Conclusion
City of Scappoose defendants' motion for summary judgment (#53) is granted.
The plaintiffs' motion for an order to deny City of Scappoose defendants' motion for summary judgment (#72) is denied.
The plaintiffs' motion to strike affidavit of David C. Lewis (#77) is denied.
The plaintiffs' motion to strike affidavit of Douglas Carpenter (#79) is denied.
City of Scappoose defendants' motions to strike inadmissible evidence from plaintiff Mervin Arnold's affidavit (#89) is denied.
City of Scappoose defendants' motions to strike inadmissible evidence from plaintiff Nellie Arnold's affidavit (#90) is denied.
2. Defendant Margo Dew's Motion for Summary Judgment
Defendant Margo Dew contends that she is entitled to judgment in her favor as a matter of law. Defendant Dew contends that the only claim alleged against her is that she summoned a fire rescue crew to the laundromat at the request of Nellie Arnold.
The plaintiffs move to strike defendant Dew's motion for summary judgment on the grounds that the motion incorporates the memorandum and exhibits filed by the City of Scappoose defendants.
There are no facts in this record which support any claim for relief based upon the conduct of defendant Margo Dew.
Defendant Margo Dew's motion for summary judgment (#58) is granted.
The plaintiffs' motions to strike defendant Margo Dew's motion for summary judgment (#75 and #83) are denied.
Defendant Margo Dew's motion to strike inadmissible evidence from the plaintiffs' affidavits (#88) is denied.
3. Motion for Summary Judgment of Defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts and Mark Reed
Defendants Scappoose Rural Fire Protection District, Michael Griesen, Jerome Watts, and Mark Reed move the court for summary judgment for the reason that the undisputed facts establish that these defendants have not violated any of the rights of the plaintiffs. Defendants Watts and Reed contend that there is no evidence to support any claim that the plaintiffs suffered any injury as a result of the medical services provided. Defendants Scappoose Rural Fire Protection District and Michael Griesen contend that there is no evidence to suggest that they should be held liable for any failure to train or supervise.
The plaintiffs contend that defendant Watts and Reed did not provide the flow chart of treatment provided to him with the VA Hospital personnel after transporting him to that facility. The plaintiffs contend that defendant Watts and Reed charted a high blood glucose level in Mervin Arnold's chart and did not give this information to the health care provider when they delivered him for further treatment.
The plaintiffs set forth the following two claims for relief against defendants Scappoose Rural Fire Protection District, Michael Griesen, Jerome Watts and Mark Reed: A) third claim for relief under 42 U.S.C. § 1983; and B) seventh claim for relief for the intentional infliction of emotional distress.
A. Third Claim for Relief Under 42 U.S.C. § 1983
In order to show some constitutional violation of the Fourteenth Amendment Due Process Clause against defendants Watts and Reed, the plaintiffs would be required to come forward with some evidence of a deliberate indifference to medical need and evidence of injury. Maddox v. City of Los Angeles, 792 F.2d 1408 (9th Cir. 1986).
There is no evidence in this case of deliberate indifference with regard to medical care. There is no evidence of negligence or a failure to render appropriate care. In addition, there is no evidence that the care provided by these defendants caused the plaintiffs any injury.
B. Seventh Claim for Relief for the Intentional Infliction of Emotional Distress
There is no evidence in this record to support a claim for the intentional infliction of emotional distress against defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts or Mark Reed.
Defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts and Mark Reed's motion for summary judgment (#59) is granted.
The plaintiffs' motion to strike affidavit of Mark Reed (#74) is denied.
The plaintiffs' motion to strike affidavit of Jerry Watts (#76) is denied.
The plaintiffs' motion to strike affidavit of Michael Greisen (#78) is denied.
The defendants' motion to strike inadmissible evidence from the plaintiffs' affidavits (#84) is denied.
CONCLUSION
City of Scappoose defendants' motion for summary judgment (#53) is granted.
The plaintiffs' motion for an order to deny City of Scappoose defendants' motion for summary judgment (#72) is denied.
The plaintiffs' motion to strike affidavit of David C. Lewis (#77) is denied.
The plaintiffs' motion to strike affidavit of Douglas Carpenter (#79) is denied.
City of Scappoose defendants' motions to strike inadmissible evidence from plaintiff Mervin Arnold's affidavit (#89) is denied.
City of Scappoose defendants' motions to strike inadmissible evidence from plaintiff Nellie Arnold's affidavit (#90) is denied.
Defendant Margo Dew's motion for summary judgment (#58) is granted.
The plaintiffs' motions to strike defendant Margo Dew's motion for summary judgment (#75 and #83) are denied.
Defendant Margo Dew's motion to strike inadmissible evidence from the plaintiffs' affidavits (#88) is denied.
Defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts and Mark Reed's motion for summary judgment (#59) is granted.
The plaintiffs' motion to strike affidavit of Mark Reed (#74) is denied.
The plaintiffs' motion to strike affidavit of Jerry Watts (#76) is denied.
The plaintiffs' motion to strike affidavit of Michael Greisen (#78) is denied.
The defendants' motion to strike inadmissible evidence from the plaintiffs' affidavits (#84) is denied.
Three defendants — OHSU, Jeffrey Greenbaum and Betty Walls — remain in this case. Discovery closed on September 28, 2001. The pretrial order was due on October 30, 2001. Any dispositive motions shall be filed by January 31, 2002.
ORDER
IT IS HEREBY ORDERED as follows:
City of Scappoose defendants' motion for summary judgment (#53) is GRANTED.
The plaintiffs' motion for an order to deny City of Scappoose defendants' motion for summary judgment (#72) is DENIED.
The plaintiffs' motion to strike affidavit of David C. Lewis (#77) is DENIED.
The plaintiffs' motion to strike affidavit of Douglas Carpenter (#79) is DENIED.
City of Scappoose defendants' motions to strike inadmissible evidence from plaintiff Mervin Arnold's affidavit (#89) is DENIED.
City of Scappoose defendants' motions to strike inadmissible evidence from plaintiff Nellie Arnold's affidavit (#90) is DENIED.
Defendant Margo Dew's motion for summary judgment (#58) is GRANTED.
The plaintiffs' motions to strike defendant Margo Dew's motion for summary judgment (#75 and #83) are DENIED.
Defendant Margo Dew's motion to strike inadmissible evidence from the plaintiffs' affidavits (#88) is DENIED.
Defendants Scappoose Rural Fire Protection District, Michael Greisen, Jerome Watts and Mark Reed's motion for summary judgment (#59) is GRANTED.
The plaintiffs' motion to strike affidavit of Mark Reed (#74) is DENIED.
The plaintiffs' motion to strike affidavit of Jerry Watts (#76) is DENIED.
The plaintiffs' motion to strike affidavit of Michael Greisen (#78) is DENIED.
The defendants' motion to strike inadmissible evidence from the plaintiffs' affidavits (#84) is DENIED.
Three defendants — OHSU, Jeffrey Greenbaum and Betty Walls — remain in this case. Discovery closed on September 28, 2001. The pretrial order was due on October 30, 2001. Any dispositive motions shall be filed by January 31, 2002.