Opinion
3:20-cv-02056-SB
09-01-2022
KEVIN BRATCHER, Plaintiff, v. POLK COUNTY, CITY OF SALEM, DEPUTY MICHAEL H. SMITH, in his individual capacity, and DOES 1-2, in their individual capacity, Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin Bratcher (“Bratcher”) filed this case against Polk County (the “County”), the City of Salem (the “City”), Polk County Deputy Sheriff Michael H. Smith (“Deputy Smith”), and Salem Police Officers Does 1-2. Bratcher asserts constitutional claims under 42 U.S.C. § 1983 and state law claims for assault, battery, negligence, and intentional infliction of emotional distress. (ECF No. 19.) Now before the Court are the City's and County's motions for summary judgment. (ECF Nos. 30, 34.)
The Court has jurisdiction over Bratcher's claims pursuant to 28 U.S.C. §§ 1331 and 1367, but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons discussed below, the Court recommends that the district judge grant the City's motion for summary judgment and deny the County's motion for summary judgment.
Unless otherwise noted, the following facts are either undisputed or viewed in the light most favorable to Bratcher.
On September 6, 2019, Deputy Smith arrived at Bratcher's home to serve Bratcher's wife with a small claims court summons. (First. Am. Compl. (“FAC”) ¶¶ 10-11.) Bratcher informed Deputy Smith that his wife was not home, and Deputy Smith left. (Id. ¶ 11.) Shortly thereafter, Deputy Smith returned and attempted to serve Bratcher on his wife's behalf. (Id.) Bratcher refused to accept service, so Deputy Smith threw the service documents into Bratcher's house. (Id. ¶ 12.) Bratcher picked up the documents from inside his house and threw them onto the porch. (Id. ¶ 13.) Bratcher then went outside, picked up the documents and again threw them into the air. (Id.) According to Bratcher, the documents remained on his private property. (Decl. of Amanda Reilly in Supp. of Pl.'s Resp. to Cnty. Defs.' Mot. for Summ. J. (“Reilly Decl.”) at 2, Ex. 1, Depo. of Kevin Bratcher (“Bratcher Depo.”) at 48:18-21, ECF No. 50-1.) Bratcher then walked back toward his house. (Id.)
The record contains excerpts from Bratcher's deposition attached as exhibits to several declarations. For ease of reference, the Court includes ECF citations to Bratcher's relevant deposition testimony.
Deputy Smith claims that Bratcher “threw the service papers from his driveway toward the road” and-believing he had just witnessed Bratcher commit the crime of offensive littering-he ordered Bratcher to stop. (Decl. of Michael Smith in Supp. of Cnty. Defs.' Mot. for Summ. J. (“Smith Decl.”) ¶¶ 5-6, ECF No. 36.) According to Bratcher, Deputy Smith pursued him, kicked in his front door, “grab[bed him], and threw [him] against the wall.” (Bratcher Depo. at 41:25-42:2, ECF No. 50-1.) Deputy Smith “threatened to [t]ase [Bratcher] five or six times[.]” (Id. at 42:4-6.) When Deputy Smith grabbed Bratcher, a remote operated electronic stimulator implanted in Bratcher's back “shocked [him] the wrong way,” causing pain. (Id. at 42:2-16.)
Deputy Smith then made a “Code 3 cover” call for “emergency backup.” (Decl. of Jason Donner in Supp. of City Defs.' Mot. for Summ. J. (“Donner Decl.”) ¶¶ 2-5; Smith Decl. ¶ 6.) Before “Does 1-2” arrived in response to Deputy Smith's call, Deputy Smith arrested Bratcher for offensive littering and interference with a police officer. (FAC ¶ 13.)
A “Code 3 cover” call means the requesting officer wants the responding officers to arrive with lights and sirens on because the requesting officer is in a high-risk situation. (Decl. of Jason Donner in Supp. of City Defs.' Mot. for Summ. J. (“Donner Decl.”) ¶¶ 4-5, ECF No. 31.)
After Deputy Smith “calmed down,” he “let [Bratcher] sit down on the stairs” and “placed the cuffs on [Bratcher] in the front.” (Bratcher Depo. at 42:7-10, ECF No. 50-1.) Bratcher then asked Deputy Smith if Bratcher “could go get the remote for my stimulator to turn it off, and [his] cell phone so [Bratcher] could contact [his] wife.” (Id. at 42:11-16.) Deputy Smith allowed Bratcher to retrieve those items, and Bratcher held those items in his hands. (Id. at 42:13-25.)
Approximately four minutes after Deputy Smith called for cover, City of Salem Police Officer Chad Galusha (“Officer Galusha”) and City of Salem Police Sergeant Jason Donner (“Sergeant Donner”) (together, the “City Officers”) arrived at what they described as a “chaotic” scene. (Donner Decl. ¶¶ 7-8.) The City Officers observed Bratcher's front door off its hinges and things strewn about in the house. (Decl. of Chad Galusha in Supp. of City Defs.' Mot. for Summ. J. (“Galusha Decl.”) ¶ 8.) The City Officers observed that Deputy Smith had his Taser out of its holster and Bratcher was yelling at Deputy Smith. (Donner Decl. ¶ 8; Galusha Decl. ¶ 8.) The City Officers noticed that Bratcher's handcuffs were in front, rather than behind his back, which was “inconsistent with proper handcuff placement in typical arrest situations” and caused the City Officers to feel apprehensive about Bratcher's ability to cause injury to themselves or Deputy Smith. (Galusha Decl. ¶ 9; Donner Decl. ¶ 9.)
Bratcher does not identify Officer Galusha or Sergeant Donner by name in the FAC, nor does he differentiate his allegations against Doe 1 and Doe 2. For clarity, the Court refers to Officer Galusha and Sergeant Donner by name as reflected in the summary judgment record.
There is conflicting evidence in the record regarding whether Deputy Smith kept his Taser in its holster. (See, e.g., Galusha Decl. ¶ 8, “Deputy Smith had his [T]aser out of its holster”; Decl. of Kenneth Montoya in Supp. of Cnty. Defs.' Mot. for Summ. J. (“Montoya Decl.”) ¶ 2, Ex. 1, Bratcher Decl. at 56:23-24, ECF No. 35-1, when asked whether Deputy Smith ever pulled his Taser out of the holster, Bratcher testified, “[n]o, he did not”).
Bratcher claims that “Does 1-2” then took Bratcher's cell phone and the electronic stimulator away and tossed them onto the floor. (Decl. of Jennifer Gaddis in Supp. of City Defs.' Mot. for Summ. J. (“Gaddis Decl.”) ¶ 2, Ex. 1, Bratcher Depo. at 129:1-15, ECF No. 33-1.)
Bratcher initially alleged that “Does 1-2 . . . grabbed [the items] from [his] hand and threw them across the room without any provocation[.]” (FAC ¶ 15.) On the present record, it is unclear whether he is alleging that it was Officer Galusha or Sergeant Donner who “grabbed” the items. (See Bratcher Depo. at 42:19-25, ECF No. 50-1, testifying that “two Salem Police Department officers arrived . . . one of the [] officers grabbed my cell phone and my charger and threw them across the room”; Reilly Decl. ¶ 9, Ex. 2, Depo. of Michael Smith (“Smith Depo.”) at 40:19-22, ECF No. 48-2, answering “[n]ot that I recall” when asked whether “[a]t any point, did you ever see either Salem Police officers grab anything out of Mr. Bratcher's hands?”; Suppl. Decl. of Jason Donner in Supp. of City Defs.' Reply (“Suppl. Donner Decl.”) ¶ 2, ECF No. 57, stating “I do not recall either myself or Officer Galusha tossing or throwing [Bratcher's] cell phone or stimulator control device during the course of our contact with him”; Suppl. Decl. of Chad Galusha in Supp. of City Defs.' Reply (“Suppl. Galusha Decl.”) ¶ 2, ECF No. 56, stating “I do not recall either myself or Sergeant Donner tossing or throwing [Bratcher's] cell phone or stimulator control device”).
Deputy Smith then requested that the City Officers assist in escorting Bratcher to Deputy Smith's patrol car. (Galusha Decl. ¶ 10; Donner Decl. ¶ 10.) When escorting Bratcher to the patrol car, Sergeant Donner and Deputy Smith were on either side of Bratcher, and Sergeant Donner held firmly onto Bratcher's left bicep because he was concerned about Bratcher's front handcuff placement and because Deputy Smith had advised the City Officers that Bratcher had resisted arrest. (Donner Decl. ¶¶ 9-11.) Once Bratcher was secured in the patrol car, the City Officers cleared the scene. (Id. ¶ 13.) Moments later, Deputy Smith's superior, Sergeant Jason Ball (“Sergeant Ball”), arrived, and either Deputy Smith or Sergeant Ball-the record is unclear-removed Bratcher's handcuffs and released Bratcher after Deputy Smith issued Bratcher a citation. (Bratcher Depo. at 43:7-18, ECF No. 35-1.)
In his FAC, Bratcher alleges that the City and the County are liable for assault and battery, that the County was negligent and intentionally inflicted emotional distress, and that Deputy Smith and “Does 1-2” violated his constitutional rights under the Fourth Amendment. (FAC ¶¶ 22-44.)
STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. See Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (simplified).
DISCUSSION
I. THE CITY'S MOTION
The City moves for summary judgment on several grounds, including that (1) Bratcher failed to amend his complaint to name Sergeant Donner and Officer Galusha as defendants; (2) no reasonable juror could conclude that the seizure of Bratcher's phone and stimulator device, walking Bratcher to the patrol car, or the officer's firm grip on Bratcher's arm during the escort violated Bratcher's constitutional rights; and (3) Bratcher has not established intent to commit assault or battery as required under Oregon law. (See generally City Defs.' Mot. for Summ. J. (“City Mot.”).) For the reasons discussed below, the Court agrees and recommends that the district judge grant the City's motion for summary judgment.
A. Failure to Name Doe Defendants
As relevant to the City's motion, Bratcher alleges in his Section 1983 claim that “Does 1-2, acting under the color of law, deprived [Bratcher] of his right to be free from unreasonable search and/or seizure when . . . Does 1-2 confiscated [Bratcher's] property, threw it across the room, left visible injuries on [Bratcher's] person without provocation, and forced [Bratcher] to walk a great distance on an injury that further exacerbated his pain.” (FAC ¶ 43.) The City argues that Bratcher's Section 1983 claim against Does 1-2 and his assault and battery claims against the City must be dismissed because Bratcher never amended his complaint to substitute Officer Galusha and Sergeant Donner for the “Doe” defendants. (City Mot. at 5-6.)
Bratcher responds that dismissal is not appropriate because he did not have “ample opportunity prior to the time [the City] moved for summary judgment to conduct reasonable discovery, identify [Does 1-2], and seek leave to amend the complaint to name them properly.” (Pl.'s Resp. to the City's Mot. for Summ. J. (“Pl.'s City Resp.”) at 5, citing Garcia ex rel. Estate of Acosta-Garcia, 428 Fed.Appx. 706, 708-09 (9th Cir. 2011)).
1. Procedural Background
Bratcher filed his original complaint on November 25, 2020. (Compl., ECF No. 1.) At that time, he named “Defendants Does 1-4,” whom he identified as “individuals acting in the course and scope of their employment with Defendant City of Salem[.]” (Id. ¶ 4.)
On February 1, 2021, the City filed a motion to dismiss Bratcher's claims against the City and Does 1-4. (City Defs.' Mot. to Dismiss, ECF No. 11.) On March 3, 2021, while the City's motion was pending, Bratcher submitted the parties' proposed case management schedule to the Court. (ECF No. 15.) At that time, the parties proposed that amended pleadings were to be filed no later than June 1, 2021, discovery would close on July 30, 2021, and dispositive motions would be due on August 31, 2021. (Id.) The Court adopted the requested schedule. (ECF No. 16.)
On April 12, 2021, the Court issued its findings and recommendation on the City's motion to dismiss, recommending that the district judge dismiss Bratcher's claims against the City and Does 1-4, with leave to amend his complaint. (ECF No. 17.) The district judge adopted the Court's findings and recommendation on June 2, 2021. (ECF No. 22.) On May 12, 2021, Bratcher filed his FAC, this time naming Salem police officers “Does 1-2.” (FAC ¶ 5.)
On July 29, 2021, the parties jointly requested an extension of the discovery and dispositive motion deadlines, which the Court granted. (ECF Nos. 24, 25.) On October 28, 2021, the Court granted the parties' second motion for extension of the discovery and dispositive motions deadlines, setting the close of discovery on December 27, 2021, and the dispositive motion deadline on January 28, 2022. (ECF Nos. 27, 28.) The City timely filed its motion for summary judgment on January 28, 2022. (ECF No. 30.)
No party ever requested an extension of time to file amended pleadings, and the deadline for doing so expired on June 1, 2021.
2. Legal Standards
a. Rule 16
A case management “schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “A party demonstrates good cause for the modification of a scheduling order by showing that, even with the exercise of due diligence, he or she was unable to meet the deadlines set forth in the order.” Steinhauer v. Liberty Mut. Ins. Co., No. 3:18-cv-1416-JR, 2020 WL 6333962, at *7 (D. Or. Aug. 12, 2020) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88 (9th Cir. 2002)), findings and recommendation adopted, 2020 WL 5743936 (D. Or. Sept. 25, 2020), aff'd, 2021 WL 5632475 (9th Cir. Dec. 1, 2021); see also Estep v. Forever 21 Retail, Inc., No. 3:16-cv-02214-SB, 2019 WL 430884, at *1 (D. Or. Feb. 4, 2019) (“The good cause standard focuses on the reasonable diligence of the moving party.” (citing Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007)); Enzymotec Ltd. v. NBTY, Inc., 754 F.Supp.2d 527, 536 (E.D.N.Y. 2010) (“[T]he good cause standard is not satisfied when the proposed amendment rests on information that the party knew, or should have known, in advance of the deadline.”).
“The district court ‘is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a [scheduling] order . . . will not be disturbed unless they evidence a clear abuse of discretion.'” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992), Noyes, 488 F.3d at 1174 n.6, and Zivkovic, 302 F.3d at 1087).
b. Rule 15
After a brief period in which a party may amend as of right, “a party may amend its pleadings . . . [with] the court's leave[,]” and the “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a). Five factors guide the exercise of a district court's discretion to allow leave to amend: (1) undue delay; (2) bad faith; (3) repeated failure to cure deficiencies; (4) undue prejudice; and (5) futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Prejudice to the opposing party “carries the greatest weight and is the touchstone of the inquiry under Rule 15.” Cervantes v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2019 WL 1129154, at *13 (S.D. Cal. Mar. 12, 2019) (citations omitted). “The party opposing amendment bears the burden of showing prejudice.” Robillard v. Opal Labs, Inc., 337 F.Supp.3d 962, 967 (D. Or. 2018) (citation omitted).
c. Doe Defendants
“As a general rule, the use of ‘John Doe' to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (citation omitted). “However, situations arise . . . where the identity of alleged defendants will not be known prior to the filing of a complaint.” Id. “In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants[.]” Id. (citation omitted).
District courts in the Ninth Circuit consistently hold that the opportunity to name Doe defendants ends with the close of discovery. See, e.g., Entsminger v. Aranas, No. 316CV00555MMDWGC, 2021 WL 4394773, at *3 (D. Nev. Sept. 24, 2021) (“Because discovery has now closed and [the plaintiff] cannot provide the Doe Defendants' names, the Court finds that they should be dismissed without prejudice.”); see also Leonard v. Denny, No. 212CV0915TLNACP, 2016 WL 43550, at *13 (E.D. Cal. Jan. 5, 2016) (“If plaintiff does not identify defendant Doe by the time discovery ends, the court will recommend defendant Doe be dismissed.”), report and recommendation adopted, 2016 WL 1267753 (E.D. Cal. Mar. 31, 2016); Ouma v. Clackamas Cnty., No. 3:12-cv-01465-HZ, 2014 WL 1874051, at *2 (D. Or. May 7, 2014) (dismissing claims against the Doe defendants where the plaintiff had “over a year since the filing of the case” to identify the Does but had not done so and finding that the “use of John Doe is disfavored, but allowed through the end of discovery”).
3. Analysis
The Court finds that Bratcher has not demonstrated that leave to amend his complaint to name the Doe defendants is appropriate under either Rule 16 or Rule 15.
a. Rule 16
Rule 16 governs Bratcher's motion because he is seeking to amend the complaint after the expiration of the pleading amendment deadline. (See ECF Nos. 16, 25, 28.)
The City asserts that on January 4, 2021, it produced police reports to Bratcher which “identified [that] the only two Salem Police officers that responded to the incident” were Officer Galusha and Sergeant Donner. (City Defs.' Reply to Pl.'s Resp. to City Defs.' Mot. for Summ. J. (“City Reply”) at 1-2.) Bratcher does not disagree, and thus the undisputed record reflects that he was aware of the identities of Does 1 and 2 in January 2021, several months before the pleading amendment deadline.
Nevertheless, Bratcher alleges that he “did not confirm” the identities of Does 1 and 2 until November 19, 2021, the date his counsel deposed Officer Galusha and Sergeant Donner. (Pl.'s Resp. to City Defs.' Mot. for Summ J. (“Pl.'s City Resp.”) at 5.) Even if the Court accepts Bratcher's argument that it was necessary to confirm the identities of these officers despite receiving the relevant police reports several months prior, Bratcher delayed further by failing to seek leave to amend his complaint following the depositions. After Bratcher confirmed the identities of Officer Galusha and Sergeant Donner at their November 17, 2021, depositions, he had six weeks until the close of discovery and he never sought to substitute the Doe defendants. See Becker v. Oregon, 170 F.Supp.2d 1061, 1069 (D. Or. 2001) (dismissing claims against Doe defendants where the “plaintiff ha[d] been given ample opportunity through discovery to identify the unknown defendants” but had failed to “file against them specifically”). In fact, Bratcher never filed a motion for leave to amend his complaint, but rather argued in his response to the City's motion for summary judgment that the Court should provide him leave to amend. (See Pl.'s City Resp. at 6, requesting, for the first time, that the Court “should grant plaintiff leave to amend his complaint”).
In light of this timeline, the Court finds that Bratcher was not reasonably diligent in timely substituting the Doe defendants and he has not demonstrated good cause to modify the Court's pretrial scheduling order to allow amendment of the pleadings after the deadline has long passed. See Steinhauer, 2020 WL 6333962, at *7 (granting summary judgment in favor of Doe defendants and finding that counsel's failure to name the defendant demonstrated a lack of diligence in failing to meet the deadline) (simplified); see also Int'l Media Films, Inc. v. Lucas Ent., Inc., No. 07 Civ. 1178, 2008 WL 781823, at *5 (S.D.N.Y. Mar. 20, 2008) (finding lack of diligence and lack of good cause where the plaintiff moved to amend the complaint to add a defendant seven months after deadline had passed and several months after learning the identity of the defendant during discovery).
b. Rule 15
Bratcher relies on the liberal policy favoring amendments under Rule 15 to argue that the Court should grant his request to amend his complaint even after the City filed its motion for summary judgment. (Pl.'s City Resp. at 6) (relying on Fed.R.Civ.P. 15(a)(2)). A plaintiff typically “retains the opportunity to move for leave to substitute a specifically named individual in place of the Doe defendant” until the date specified in the court's case management and scheduling order. Lute v. Sniff, No. 517CV01722DSFSP, 2021 WL 5969516, at *1 (C.D. Cal. Oct. 7, 2021). However, “[o]nce the district court had filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 . . . that rule's standards control the subsequent course of the action unless modified by the court.” Johnson, 975 F.2d at 607-08 (citing Fed.R.Civ.P. 16(e)). As discussed above, Bratcher did not seek leave to amend prior to the June 2021 pleadings amendment deadline, and therefore Rule 16 governs and precludes Bratcher's untimely request.
In any event, the Court finds that amendment is also improper under the more liberal Rule 15. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (holding that under the “extreme liberality” of Rule 15, a court must assess the propriety of amendment by considering five factors: “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint”); see also Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999) (“A district court determines the propriety of a motion to amend by ascertaining the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.”). The Court finds that Bratcher's request to amend is the result of undue delay, and allowing substitution at this late date would prejudice the City.
First, as discussed above, Bratcher unduly delayed his request to amend the complaint. Bratcher argues that he did not timely seek leave to amend because he did not have “ample time” to do so, “especially when that time overlaps with three winter holidays.” (Pl.'s City Resp. at 6.) In support, Bratcher's counsel presented evidence that his law firm was closed on various dates in late 2021 and early 2022 to observe the Thanksgiving, Christmas, and New Year holidays, and noted that several attorneys representing Bratcher were “out of the office” during that time. (Decl. of Amanda Reilly, ¶¶ 2-7, ECF No. 48.) However, as previously discussed, the parties agreed that amended pleadings were due no later than June 1, 2021, discovery would close on December 27, 2021, and dispositive motions were due on January 28, 2022. A busy holiday season does not excuse Bratcher's failure to amend his complaint in the prior months, and he could have sought an extension of the end-of-year deadlines if necessary.
Second, allowing the proposed amendment at this stage of the proceedings would prejudice the City, in part because Bratcher is not simply requesting a substitution of parties. The FAC refers only to “Does 1-2” collectively and does not distinguish between the alleged actions of Officer Galusha and Sergeant Donner, and therefore substitution would require the pleading of additional facts to attribute specific actions to each defendant. See Keavney v. Cnty. of San Diego, No. 3:19cv194-AJB(BGS), 2020 WL 4192286, at *4 (S.D. Cal. July 21, 2020) (“A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts showing how each particular [D]oe defendant violated his rights.” (quoting Cuda v. Emps./Contractors/Agents at or OCCC, No. CV 19-00084 DKW-KJM, 2019 WL 2062945, at *4 (D. Haw. May 9, 2019))). “Where a plaintiff fails to link the alleged wrong or explain how any of the unidentified parties he sued personally caused a violation of his rights, the court must dismiss those individuals[.]” Novalk, LLC v. Sedgwick, No. 3:21-CV-973-BEN-LL, 2021 WL 2184830, at *3 (S.D. Cal. May 28, 2021) (finding allegations against “John Does 1-25” without specific allegations as to each Doe defendant individually was “insufficient to state a claim”).
At oral argument, Bratcher's counsel acknowledged that he was not certain whether Bratcher has viable claims against both Officer Galusha and Sergeant Donner.
To allow substitution now, after the close of discovery, would prejudice the City's ability to defend against any new allegations linked specifically to Officer Galusha or Sergeant Donner, and reopening discovery would further delay resolution of this case. See Polk v. Carpenter, 316CV00652MMDCLB, 2020 WL 2733941, at *2 (D. Nev. May 22, 2020), aff'd sub nom. Polk v. Waldo, 2021 WL 5399886 (9th Cir. Nov. 18, 2021) (denying the plaintiff's motion to amend because “allowing Plaintiff to amend his Complaint after the close of discovery and after dispositive motions have already been filed would prejudice Defendant”).
4. Conclusion
The Court finds that Bratcher has not demonstrated good cause to amend his complaint to substitute Officer Galusha and Sergeant Donner for Does 1-2 after the close of discovery and after the defendants filed dispositive motions, and allowing him to do so after undue delay would prejudice the City. See Afshar v. City of Sacramento, No. CVS041088LKKJFM, 2005 WL 8176583, at *2 (E.D. Cal. Dec. 19, 2005) (denying the plaintiff's motion to amend where five months had passed since learning the Doe defendant's identity, and holding that “amending the complaint to substitute the real names must be done within a reasonable time”). Therefore, the Court recommends that the district judge deny Bratcher's request to amend his complaint to substitute the Doe defendants at this late stage of the litigation, and dismiss the City and Does 1-2 from the litigation. See, e.g., Oster v. Cnty. of Solano, No. 2:12-CV-1264-JAM-AC, 2015 WL 4545295, at *2 (E.D. Cal. July 27, 2015) (“Plaintiff has had ample opportunity to properly substitute the individuals responsible for the alleged conduct for the Doe Defendants but has failed to do so. He is, therefore, pursuing a [Section 1983] claim against no one and the claim against the Doe Defendants must be dismissed.”).
B. Merits
Even if the district judge were to allow Bratcher to amend his complaint to substitute Officer Galusha and Sergeant Donner for Does 1-2, the district judge should grant the City's motion for summary judgment because no reasonable juror could find on this record that Officer Galusha or Sergeant Donner violated Bratcher's constitutional rights or committed assault or battery. See Matsushita Elec. Indus. Co., 475 U.S. at 587 (“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”).
1. Section 1983 Claims
Bratcher alleges in his FAC that Does 1-2 violated his Fourth Amendment rights in three ways: (1) by “confiscating [Bratcher's] property [and] throw[ing] it across the room[;]” (2) by “leaving visible injuries on [Bratcher's] person without provocation[;]” and (3) by “forc[ing Bratcher] to walk a great distance on an injury[.]” (FAC ¶ 43.)
a. Applicable Law
It is a “fundamental premise that the use of force to effect an arrest is subject to the Fourth Amendment's prohibition on unreasonable seizures.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “There is . . . no mechanical test for determining whether a particular application of force was unreasonable; the reasonableness of a seizure must instead be assessed by carefully considering the objective facts and circumstances that confronted the arresting officer or officers.” Id. (citing Graham, 490 U.S. at 396).
“In determining reasonableness, ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' must be balanced against the ‘countervailing government interests at stake.'” Id. (quoting Graham, 490 U.S. at 396). “In weighing the governmental interests involved the following should be taken into account: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attemptin g to evade arrest by flight.” Id. (citing Graham, 490 U.S. at 396). Importantly, “not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.” Graham, 490 U.S. at 396 (simplified).
b. Analysis
1) Property Claims
With respect to Bratcher's claims that Does 1-2 took his phone and stimulator away from him, Bratcher never alleges whether it was Sergeant Donner or Officer Galusha who seized the property. See supra note 6. At oral argument, Bratcher's counsel could not identify which officer took the items from Bratcher. Therefore, no reasonable juror could determine which defendant could be liable for seizing Bratcher's property.
Even if a juror could identify which defendant seized Bratcher's property, the record demonstrates that contrary to his allegations in the FAC, Bratcher testified in his deposition that the alleged “throwing” of his cell phone and stimulator device “was kind of like a toss to the floor” at a distance of about “three feet” and that no damage was done to either the cell phone or stimulator device. (Bratcher Depo. at 113:7, 113:15-17, 129:11-14, ECF No. 40-1.)
The Court finds that even viewing these facts in the light most favorable to Bratcher, no reasonable trier of fact could conclude that the City Officers violated Bratcher's constitutional rights when they took items from Bratcher's handcuffed hands and tossed the items a few feet to the floor without causing any damage. See, e.g., United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012) (recognizing that “[a] ‘seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property” and holding that the “temporary seizure of [the plaintiff's] computers . . . did not meaningfully interfere with his possessory interests” (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984))).
2) Excessive Force Claims
Bratcher also alleges that Does 1-2 used excessive force when they “left visible injuries on [Bratcher's] person without provocation and forced [him] to walk a great distance on an injury[.]” (Pl.'s City Resp. at 8.)
While the parties do not expressly acknowledge that Sergeant Donner was the officer who assisted Deputy Smith in escorting Bratcher to the patrol car, the record before the Court appears to establish that fact. (See Donner Decl. ¶¶ 11-12.) Accordingly, Officer Galusha is entitled to summary judgment on Bratcher's claims related to his escort to the patrol car because the record demonstrates that Officer Galusha did not participate in the escort. See Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009) (“[A] police officer's being a mere bystander to his colleagues' conduct is insufficient to support § 1983 liability.”) (simplified).
Bratcher's allegation in the FAC that Sergeant Donner forced him to walk a great distance despite a foot injury is contradicted by his deposition testimony that he did not communicate his foot injury to Sergeant Donner because Bratcher “didn't feel it at the time.” (Bratcher Depo. at 121:16-21, ECF No. 33-1; Bratcher Depo. at 81:3-8, ECF No. 48-1, testifying that he did not inform anyone about his foot injury until “approximately two hours” after the incident.) Because there is no evidence in the record demonstrating that Sergeant Donner was aware of Bratcher's injury before escorting Bratcher to the patrol car and in light of the evidence that Bratcher's foot was not bothering him during the escort, summary judgment should enter on Bratcher's excessive force claim against Sergeant Donner. See, e.g., Brookins v. Rafferety, 59 Fed.Appx. 983, 983 (9th Cir. 2003) (holding that summary judgment was proper on excessive force claim where, inter alia, the plaintiff “did not complain about [his alleged injury] for 45 to 50 minutes, and suffered only de minim[i]s injury”).
With respect to Bratcher's claim that Sergeant Donner gripped his arm too firmly during the walk to the patrol car, the record reflects that Sergeant Donner responded to Deputy Smith's call for emergency backup to assist with a “suspect [that] was actively resisting” and that the requesting officer was in “a high risk situation.” (Donner Decl. ¶¶ 2-5.) Sergeant Donner arrived to a “chaotic scene[,]” observed a kicked-in door, Deputy Smith with his Taser out of its holster, and yelling. (Id. ¶ 8; Donner Decl. ¶ 8.) Officer Galusha and Sergeant Donner both stated that they were concerned with Bratcher's handcuff placement because “cuffing a suspect in the front of their body allows them to have movement and control of their arms [and t]his can create an opportunity for a violent suspect to harm law enforcement officers or others.” (See id. ¶ 9; see also Donner Decl. ¶ 9.) Sergeant Donner stated that when he assisted Deputy Smith in escorting Bratcher to the patrol vehicle, “it was important that I hold onto [Bratcher's] bicep as he walked to the car to maintain some control over him” because of “the location of Deputy Smith's handcuffs on [Bratcher] and [Sergeant Donner 's] understanding that [Bratcher] had just actively resisted arrest.” (Donner Decl. ¶ 11.) Even viewing these facts in the light most favorable to Bratcher, no reasonable juror could conclude that firmly holding Bratcher's arm during the escort was objectively unreasonable in light of the facts and circumstances confronting Sergeant Donner. See Graham, 490 U.S. at 397 (analyzing whether force is excessive under the Fourth Amendment by looking at “whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them”).
Furthermore, Bratcher alleged that Sergeant Donner's firm grip left “visible injures” on his left bicep, but Bratcher acknowledged at his deposition that the scratches on his arm “could be” and “maybe” have been caused when he and the officers “were trying to fit through a door that was not very wide.” (Bratcher Depo. at 133:17-22, ECF No. 33-1.) The record also demonstrates that after Bratcher was escorted to the patrol car, he informed Deputy Smith's superior that the injury to Bratcher's arm was pre-existing. (See Suppl. Gaddis Decl. ¶ 2, Ex. 2, p. 11-12, ECF No. 55-1.)
Even assuming, arguendo, that Sergeant Donner caused the scratches on Bratcher's arm during his escort of Bratcher to the patrol car, such a de minimis use of force is insufficient to support an excessive force claim under the circumstances present here. See, e.g., Bishop v. San Quentin State Prison Work Place, No. C 01-3411 SI (PR), 2002 WL 1767416, at *4 (N.D. Cal. July 29, 2002) (“[T]he constitution does not protect against de minimis uses of force, and a de minimis injury often reflects a de minimis use of force to effectuate the arrest.”). Indeed, Bratcher presents no evidence that the scratches on his arm required any medical attention. See, e.g., Felarca v. Birgeneau, 891 F.3d 809, 807 (9th Cir. 2018) (concluding that force applied by police batons consisted only of “physical pressure administered on the demonstrators' limbs in increasing degrees, resulting in pain” and was therefore minimal because, inter alia, “none of the plaintiffs suffered injuries from defendants' blows that required medical treatment”); Houston-Hines v. Houston Indep. Sch. Dist., No. CIV.A. H-04-3539, 2006 WL 870459, at *5 (S.D. Tex. Apr. 5, 2006) (finding that the plaintiff had not raised a genuine issue of material fact to support excessive force claim where alleged injury suffered during an arrest was “scratches and bruises[,]” explaining that “it is undisputed that [the plaintiff never] sought any treatment for such injuries” and that the plaintiff received only “de minimis injuries during the incident”).
The Court finds that on the present record, no reasonable trier of fact could conclude that Sergeant Donner used excessive force when he gripped Bratcher's arm and walked him to the patrol car, and therefore summary judgment should enter in favor of Sergeant Donner and Officer Galusha on Bratcher's Section 1983 claims.
Having found that Sergeant Donner and Officer Galusha are entitled to summary judgment, the Court does not reach the issue of qualified immunity.
2. Assault and Battery Claims
Bratcher claims that the City, “by and through its employees Does 1-2, acted in such a manner to cause harmful or offensive contact when confiscating [Bratcher's] property, throwing it across the room, and leaving injuries on Bratcher during transport” and that “the actions of Does 1-2 [placed Bratcher in imminent apprehension of an offensive contact] in their transport of Plaintiff and the taking and throwing of his property.” (FAC ¶¶ 23-24, alleging assault claim.) Bratcher also claims that the City “by and through their employees, acted in such a manner that . . . Does 1-2 caused injury to Plaintiff's bicep” and that “Defendant Does 1-2 . . . gripped Plaintiff's bicep with such force as to leave a mark.” (Id. ¶¶ 27-28, alleging battery claim.)
a. Applicable Law
“In Oregon, ‘assault' is defined as the intentional attempt to engage in harmful or offensive contact [and ‘b]attery' is the intent to cause harmful or offensive contact with the person of another.” Trustus LLC v. Catlin Ins. Servs., Inc., No. 1:20-CV-00082-CL, 2020 WL 6994247, at *3 (D. Or. Nov. 3, 2020) (citing Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48 (1956)), findings and recommendation adopted, 2021 WL 932015 (D. Or. Mar. 10, 2021). “Both assault and battery require the intent not only to do an act, but the intent to do violence and personal injury to the person assaulted.” Id. (simplified).
b. Analysis
The City argues that “it is undisputed that the City law enforcement officer did not intend to inflict any sort of injury on [Bratcher], either in taking control of [Bratcher's property . . . or allegedly leaving fingernail scratches on his arm.” (City Mot. at 12.) Bratcher responds that the “City defendants failed to present any evidence that negates [Bratcher's] claims that they intended to cause harmful or offensive contact, or imminent apprehension of such conduct,” and that the City “failed to demonstrate . . . that [he] did not establish the intent element.” (Pl.'s Resp. to City at 13.)
In light of the lack of evidence that Officer Galusha or Sergeant Donner threw or damaged Bratcher's property, no reasonable juror could find that Officer Galusha or Sergeant Donner intended to cause imminent apprehension of harmful or offensive contact when they took Bratcher's property from him and “tossed” it a few feet away from him.
Further, Bratcher has presented no facts to support a conclusion that Sergeant Donner intended to injure Bratcher when he gripped Bratcher's arm during transport to the patrol car (nor did Bratcher plead in his FAC that Sergeant Donner intended to injure him). On the contrary, Bratcher testified at his deposition that he does not remember any particular moment when Sergeant Donner purposefully injured his arm:
Q: But certainly you don't remember a particular moment where the Salem officer
A: No.
Q: - purposely caused those marks to you.
A: No.(See Bratcher Depo. at 133:17-22, ECF No. 33-1; see also Donner Decl. ¶ 12, testifying that he “did not hold onto plaintiff's bicep in a rough manner, nor did [he] intentionally cause [Bratcher] an injury”; Suppl. Donner Decl. ¶ 3, testifying that “at no point during [his] contact with [Bratcher], did I intend to place him in imminent apprehension of harmful or offensive contact”; Suppl. Galusha Decl. ¶ 3, testifying that “at no point during my contact with [Bratcher] did I intend to place him in imminent apprehension of harmful or offensive conduct”). In light of Bratcher's testimony that he is unsure about the cause of the scratches on his arm and the fact that his injuries were de minimis, no reasonable juror could conclude that Sergeant Donner intended to cause Bratcher harmful or offensive contact, nor imminent apprehension of such contact, by gripping his arm during transport.
For these reasons, the Court recommends that the district judge grant the City's motion for summary judgment.
II. THE COUNTY'S MOTION
A. Section 1983 Claim against Deputy Smith
Bratcher alleged in the FAC that Deputy Smith violated his Fourth Amendment rights when he “kicked open [Bratcher's] door, tackled him, and threatened to tase him repeatedly[.]” (FAC ¶ 43.) It is undisputed that Deputy Smith entered Bratcher's home without a warrant. The County argues that Deputy Smith's “warrantless entry was justified under the hot pursuit doctrine, Deputy Smith did not tackle [Bratcher], and the minimal force used was reasonable under the circumstances.” (Cnty. Mot. at 8-9.)
1. Warrantless Entry
“It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972)). “And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.” Id. (citation omitted). “Searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. (simplified). “[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Id. at 750. “When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut[.]” Id.
“Exceptions to the warrant requirement are few in number and carefully delineated.” Id. (simplified). The Ninth Circuit has “defined those situations as (1) the need to prevent physical harm to the officers or other persons[;] (2) the need to prevent the imminent destruction of relevant evidence[;] (3) the hot pursuit of a fleeing suspect; and (4) the need to prevent the escape of a suspect.” United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010).
The County argues that summary judgment should enter for Deputy Smith on Bratcher's claim because he “was chasing [Bratcher] to arrest him for a crime the deputy witnessed[,]” and “[t]his is a textbook example of a suspect fleeing arrest from a law enforcement official chasing him.” (Id. at 8-9.) The Court disagrees, for the following reasons.
First, there is a genuine issue of material fact as to whether Deputy Smith had probable cause to arrest Bratcher for the crime of offensive littering. Under Oregon law, “[a] person commits the crime of offensive littering if the person . . . intentionally . . . [d]iscard[s] any rubbish, trash, garbage, or debris . . . upon any public way[.]” Or. Rev. Stat. § 164.805. There is no evidence in the record demonstrating that Bratcher intended to toss the service documents on the public street. Further, the parties dispute whether the service documents that Bratcher tossed in the air remained on his private property or landed in the public street. (Compare Smith Decl. ¶ 5 with Bratcher Depo. at 48:20-21, ECF No. 50-1.) Viewing the evidence in the light most favorable to Bratcher, the Court concludes that a reasonable juror could find that Bratcher did not intentionally discard the paperwork upon a public way and therefore Deputy Smith lacked probable cause to arrest Bratcher for offensive littering.
Second, even if Deputy Smith had probable cause to arrest Bratcher for offensive littering, there are also disputed material facts regarding whether the hot pursuit doctrine applies here. Application of the hot pursuit doctrine requires a chase. See Struckman, 603 F.3d at 744 (“Hot pursuit means some sort of a chase.”) (simplified); see also United States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001) (“The hot pursuit exception to the warrant requirement only applies when officers are in ‘immediate' and ‘continuous' pursuit of a suspect from the scene of the crime.”) (citation omitted). Deputy Smith testified that after Bratcher “threw the service papers from his driveway toward the road [Bratcher] walked back toward his house.” (Smith Decl. ¶ 5.) Deputy Smith alleges that Bratcher “ignored my commands to stop and fled to his front door.” (Id. ¶ 6.) Bratcher, on the other hand, testified that he “threw [the service papers] up in the air and started walking back to my house, tripped over a crack in the stoop, and went in the house, shut the door [a]nd moments later [Deputy Smith] kicked my door open[.]” (Bratcher Depo. 41:21-25, ECF No. 50-1.) Viewing the evidence in the light most favorable to Bratcher, a reasonable juror could find that Deputy Smith was not chasing Bratcher and could therefore conclude that the “hot pursuit” doctrine does not apply here.
Third, a subsequent County investigation and report into Deputy Smith's use of force found that Deputy Smith initially advised a sergeant that “he wasn't sure why he kicked open [] Bratcher's door, but later clarified that he was in hot pursuit[.]” (Reilly Decl. ¶ 7, Ex. 6, Polk County Sheriff's Office Memorandum from Sgt. Jenkins to Lt. Newman (“Sheriff's Memo.”) at 4.) The investigating officer concluded, “I expect a clear answer of hot pursuit” but “the totality of the circumstances . . . leads an outside observer to believe that Deputy Smith responded emotionally to the criminal act, rather than implementing cognitive thinking.” (Id.) The report concluded that “Deputy Smith contributed to this event due to his poor interpersonal skills . . . [and he] errored in his judgment by not slowing things down once the offensive littering crime was committed.” (Id. at 5.) As such, the County's own report calls into question whether Deputy Smith was in hot pursuit of Bratcher, or whether hot pursuit was a post-hoc rationale.
Finally, even if a reasonable juror could conclude that Bratcher had committed a crime and was fleeing from Deputy Smith, the alleged offense of arrest was a non-violent Class C misdemeanor. See Or. Rev. Stat. § 164.805(3). “[A]n important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” Welsh, 466 U.S. at 750. The Ninth Circuit has recognized that although the Supreme Court “did not draw a bright line between felonies and misdemeanors, it cited favorably a number of cases that refused to permit warrantless entries of the home for ‘nonfelonious crimes.'” Johnson, 256 F.3d at 908 (citing Welsh, 466 U.S. at 753). “Based on these cases, the Court found that ‘application of the exigent circumstance exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed.'” Id. (citing Welsh, 466 U.S. at 753); see also Lange v. California, 141 S.Ct. 2011, 2024 (2021) (“The flight of a suspected misdemeanant does not always justify a warrantless entry into a home.”).
The video evidence presented to the Court is not entirely consistent with either Deputy Smith's or Bratcher's versions of events (see Montoya Decl. ¶ 3, Ex. 2), but a reasonable juror could interpret the video evidence to conclude that Bratcher was fleeing from Deputy Smith.
While Deputy Smith's belief that Bratcher committed only a misdemeanor “does not definitely preclude a finding of exigent circumstances, it weighs heavily against it.” See id. As the Ninth Circuit explained in Johnson, “the question is whose interest should yield-a person's right to be free from warrantless intrusions or law enforcement's interest in apprehending a fleeing suspect.” Id. at 908 n.6. “[I]n situations where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment in all but the ‘rarest' cases.” Id. (citing Welsh, 466 U.S. at 753); see also Struckman, 603 F.3d at 746 (“If we were to permit a warrantless arrest and entry under these circumstances, which were not urgent or life threatening, the effect would certainly undercut making the presumption of unreasonableness difficult to rebut.”) (simplified); Hadley v. City of Beaverton, No. CV-09-022-ST, 2010 WL 1257609, at *11 (D. Or. Feb. 16, 2010) (finding that “[t]he only crimes allegedly committed by [the plaintiff] were misdemeanors based on [the plaintiff's] refusal to produce a valid fare receipt and to obey repeated orders . . . offenses [which] are not especially egregious and rate low on the severity scale”), findings and recommendation adopted, 2010 WL 1257610 (D. Or. Mar. 25, 2010).
Based on the evidence before the Court, a reasonable juror could conclude that this is not one of the “rare” cases where warrantless entry into a home was justified. Accordingly, Deputy Smith is not entitled to summary judgment on Bratcher's claim that Deputy Smith's warrantless entry into his home violated his constitutional rights.
2. Excessive Force
The County argues that summary judgment should enter for Deputy Smith on Bratcher's excessive force claims because under the objective reasonableness standard, articulated in Graham and discussed above, Deputy Smith “used minimal and objectively reasonable force to restrain and arrest [Bratcher] and at no time ‘tackled [Bratcher] to the ground.” (Cnty. Mot. at 10, citing FAC ¶¶ 13-14, 23-24, 28, 32, 36-37, 43 and relying on Graham, 490 U.S. at 386). The County also contends that Deputy Smith “warn[ing Bratcher] several times that if he did not comply, he would be Tased” “does not constitute any level of force, and Deputy Smith's physical use of force was minimal at most.” (Id.)
Bratcher argues that “it is the need for force which is at the heart of the Graham factors.” (Pl.'s Cnty. Resp. at 19, citing Graham, 490 U.S. at 396.) Bratcher claims that “under the totality of the circumstances,” including “the quantum of force used[,] . . . the availability of other methods of capturing or detaining” Bratcher, and “Bratcher's mental and emotional state,” Deputy Smith's use of force was excessive. (Id., citing Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010)). The County responds that the amount of force used by Deputy Smith was “de minimis” and that “the entirety of force employed by Deputy Smith was pushing [Bratcher] to a wall.” (Cnty. Reply at 5.)
There are disputed material facts in the summary judgment record regarding the amount of force Deputy Smith used here. Deputy Smith testified that Bratcher refused his commands to stop and then “fled to his front door . . . and quickly shut the door before [Deputy Smith] could reach [Bratcher].” (Smith Decl. ¶ 6.) Rather than approaching Bratcher's door and knocking, Deputy Smith “kicked the door [and] entered [Bratcher's] home.” (Id.) Deputy Smith “attempted to put [Bratcher's] arm behind his back to handcuff him[,]” but Deputy Smith claims Bratcher resisted. (Id.) Deputy Smith then called for emergency backup and “warned [Bratcher] several times that [he] would use [his] Taser on [Bratcher] but, realized that although [Bratcher] was resisting my attempts to put him in handcuffs, he was not trying to assault me or attempt[ing] to flee.” (Id.) The County emphasizes the fact that Deputy Smith only “pushed [Bratcher] to the wall” but “did not take [Bratcher] to the ground,” and that Deputy Smith only threatened to use his Taser. (Cnty. Mot. at 10.)
The County's claim that Deputy Smith never removed his Taser from its holster, although consistent with Bratcher's deposition testimony, is contradicted by Officer Galusha and Sergeant Donner, who both claim to have seen Deputy Smith with his Taser drawn when they arrived on the scene. (Cnty. Mot at 10, citing Bratcher Depo. at 56:23-24, ECF No. 35-1; see also Donner Decl. ¶ 8; Galusha Decl. ¶ 8.) Sergeant Donner and Officer Galusha also claim that Deputy Smith and Bratcher were yelling at each other, and the scene was “chaotic” and in “disarray.” (Donner Decl. ¶ 8; Galusha Decl. ¶ 8.)
Accepting Bratcher's version of events that Deputy Smith pushed him up against a wall, the Court must “evaluate the government's interest in the use of force by examining three core factors, “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Deputy Smith testified “it's possible” he could have apprehended Bratcher at a later date, that there was no immediate threat to either Deputy Smith himself or the public if Bratcher was not immediately apprehended, and that he could have “finished [his] report and requested a warrant for [Bratcher's] arrest.” (Smith Depo. at 28:17-20, 28:23-29:1, 29:21-30:3.) When asked whether there was “no other option but to use force . . . to enter [Bratcher's] home[,]” Deputy Smith responded that “I wouldn't say I had no other option.” (Id. at 32:2-5.)
Viewing these facts in the light most favorable to Bratcher, a reasonable juror could conclude that Deputy Smith's use of force, even if minimal, was excessive. See, e.g., Andrews v. Cnty. of Henderson, 35 F.4th 710, 718 (9th Cir. 2022) (finding that the defendant detectives were not entitled to summary judgment where the detectives' use of force was “undermined by their knowledge that [the plaintiff] was unarmed; his lack of any aggressive, threatening, or evasive behavior; and the detectives' failure to provide any prior warning or consider less intrusive alternatives before forcibly tackling him to the ground”). Accordingly, the district judge should deny the County's motion for summary judgment on Bratcher's excessive force claims against Deputy Smith.
3. Qualified Immunity
The County argues that “even if the Court were to find an issue of fact as to Deputy Smith's actions . . . [he] is still entitled to qualified immunity.” (Cnty. Mot. at 11.)
a. Applicable Law
“Qualified immunity shields government officials from civil damages unless an official ‘violate[s] a clearly established constitutional right.'” Andrews, 35 F.4th at 714-15 (citing Monzon v. City of Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020)). “Thus, in determining whether a police officer is entitled to qualified immunity, courts ask two questions: (1) whether ‘the officer's conduct violated a constitutional right[,]' and (2) ‘whether the right was clearly established in light of the specific context of the case.'” Id. at 715 (citing Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021) and quoting Tuuamalemalo v. Greene, 946 F.3d 471, 476 (9th Cir. 2019)); see also Andrews, 35 F.4th at 718 (“Even if a government official violates a constitutional right, the official is entitled to qualified immunity unless the violated right was clearly established at the time of the incident.” (citing Rice, 989 F.3d at 1120)). “A constitutional right is clearly established if it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Id. (citing Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 7 (2021) and quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
“The Supreme Court has increasingly reiterated that to meet this standard a right must be defined with specificity rather than at a high level of generality.” Id. (simplified). “Such specificity is especially important in the Fourth Amendment context, where it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Id. (simplified). “Thus, although this Court's case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (simplified).
b. Analysis
Bratcher argues that “there are a number of factual disputes concerning Deputy Smith's and [Bratcher's] conduct and motives that prevent the case from being resolved at the summary judgment stage on qualified immunity grounds.” (Pl.'s Cnty. Resp. at 21.) For the reasons discussed below, the Court agrees.
1) Warrantless Entry
The County argues that “[a]t the time of [Bratcher's] arrest in September 2019, it was not clearly established that the hot pursuit of a suspect for a non-violent misdemeanor does not justify warrantless entry into a home.” (Cnty. Reply at 6.) The County claims that “lower courts were sharply divided on how to apply the hot pursuit doctrine to misdemeanor suspects” before the Supreme Court held in 2021 that “pursuit of a fleeing misdemeanor suspect does not always-that is, categorically-justify a warrantless entry into a home.” (Id. at 7, citing Lange, 141 S.Ct. at 2013).
The County cites to the syllabus of the Lange opinion, which is not part of the opinion. Nevertheless, the County's assertion is supported by the opinion.
Contrary to the County's argument, the Ninth Circuit recognized prior to Lange that “application of the exigent circumstance exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed.” Johnson, 256 F.3d at 908 (quoting Welsh, 466 U.S. at 753); Hopkins, 573 F.3d at 772 (“It was [] clearly established by 2003 that ‘an exigency related to a misdemeanor will seldom, if ever, justify a warrantless entry into the home.'” (citing LaLonde v. Cnty. of Riverside, 204 F.3d 947, 956 (9th Cir. 2000))); see also id. (“Moreover, [the Ninth Circuit] made clear [in 2004], in United States v. Johnson, that ‘where the underlying offense is only a misdemeanor,' . . . ‘law enforcement must yield to the Fourth Amendment.'” (citing Johnson, 256 F.3d at 909 n.6)).
In Lange, the Supreme Court rejected the lower court's holding that pursuit of a suspected misdemeanant was always permissible under the exigent circumstances exception to the warrant requirement. Lange, 141 S.Ct. at 2016. In rejecting that “categorical” approach, the Supreme Court reiterated that its “precedents [] point toward assessing case by case the exigencies arising from misdemeanants' flight.” Id. at 2021. Thus, the Supreme Court's holding in Lange was consistent with the pre-Lange Ninth Circuit authority discussed above.
Here, after Deputy Smith witnessed Bratcher toss a piece of paper into the air, he pursued Bratcher, kicked in the door to his home, threatened him multiple times with a Taser, pushed him up against a wall, and handcuffed him. Deputy Smith did not testify that he was in danger, that Bratcher posed a threat, or that Deputy Smith could not have finished his report, obtained a warrant, and returned at another time. See Johnson, 256 F.3d at 909 n.6. In light of these facts, any reasonable officer would have known that in the absence of exigent circumstances, warrantless entry into a home was unconstitutional. See Lange, 141 S.Ct. at 1221 (recognizing that under existing precedent, exigencies arising out of a misdemeanant's flight allowed warrantless entry into a home only “w[]hen the totality of circumstances shows an emergency- such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home”).
Even were the Court to accept the County's argument that it was not clearly established that warrantless entry into a home under these circumstances was unconstitutional, qualified immunity would only apply if Deputy Smith had probable cause to pursue Bratcher into his home to arrest him under the hot pursuit doctrine. As previously discussed, there remains a question of fact regarding whether Deputy Smith had probable cause to arrest Bratcher and whether the hot pursuit doctrine applies. Therefore, the district judge should deny the County's motion for summary judgment on qualified immunity grounds. See Warick v. City of Eugene, No. 05-6010-HO, 2006 WL 1514384, at *2 (D. Or. May 25, 2006) (holding that the defendant officer was not entitled to qualified immunity because “the record could support a finding that [the defendant] entered [the plaintiff's] house without a warrant and arrested [him] in the absence of exigent circumstances [and t]he law was clearly established at the time of [the plaintiff's] arrest that such conduct violates the Fourth Amendment”); Sullivan v. Clackamas Cnty., No. 04-1665-JE, 2006 WL 2090096, at *6 (D. Or. July 25, 2006), judgment entered, 2006 WL 2381904 (D. Or. Aug. 15, 2006) (denying summary judgment on qualified immunity grounds because “there [were] disputed issues of material fact regarding whether [the defendant] had probable cause to arrest plaintiff . . . the right to be free from arrest without probable cause was clearly established at the time” and “a factfinder could conclude that the information known to [the defendant] when he arrested plaintiff was not sufficient for probable cause”), aff'd sub nom. Sullivan v. Cnty. of Clackamas, 2009 WL 728386 (9th Cir. Mar. 20, 2009).
2) Excessive Force
The County also argues that Deputy Smith is entitled to qualified immunity on Bratcher's excessive force claim because “Deputy Smith had probable cause to arrest [Bratcher] and used minimal force to effect the arrest.” (Cnty. Mot. at 14.) As previously discussed, there remains a question of fact as to whether probable cause existed to arrest Bratcher for offensive littering, which precludes a finding of qualified immunity here.
The County also argues that “[q]ualified immunity cannot be circumvented with general allegations” of a clearly established constitutional right. (Id., relying on City of Escondido, Cal. v. Emmons, 139 S.Ct. 500, 502-504 (2019)). The County's reliance on City of Escondido is misplaced. In that case, the Supreme Court rejected the Ninth Circuit's finding that officers conducting an arrest were entitled to qualified immunity based on a finding that “[t]he right to be free of excessive force was clearly established at the time of the events in question.” Id. at 502. The Supreme Court found that standard was “far too general” and held that “[t]he Court of Appeals should have asked whether clearly established law prohibits the officers from stopping and taking down a man” under the circumstances present in that case. Id. In City of Escondido, “there [was] no claim . . . that the officers lacked probable cause to arrest” the plaintiff and video evidence showed that the officer “did not hit the [plaintiff] or display any weapon.” Id.
Here, Bratcher argues that it was clearly established at the time of the incident that “force is only justified when there is a need for force.” (Pl.'s Cnty. Resp. at 21, quoting Cooley v. McNabb, 374 Fed.Appx. 750, 751 (9th Cir. 2010)). In Cooley, the Ninth Circuit reversed the district court's entry of summary judgment for the defendant police officer on qualified immunity grounds, holding that the officer “is not entitled to qualified immunity because it was clearly established at the time that ‘force is only justified when there is a need for force.'” Cooley, 374 Fed.Appx. at 751 (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007)). Thus, it was clearly established at least as early as 2010 that a police officer's use of force is only justified if there is a need for force.
In any event, as with the warrantless entry claim, because there are genuine issues of material fact with respect to Bratcher's excessive force claim, this “court also cannot decide as a matter of law whether [Deputy Smith is] entitled to qualified immunity for the use of that force.” Clavette v. Sweeney, 132 F.Supp.2d 864, 872 (D. Or. 2001) (holding that the defendant was not entitled to summary judgment on qualified immunity grounds on excessive force claim because a question of fact remained as to whether the force used was excessive).
Even if the court were to accept that Deputy Smith “did not punch, hit, strike, or kick” Bratcher, “the Ninth Circuit has held . . . ‘force can be unreasonable even without physical blows or injures.'” Senn v. Multnomah Cnty., 527 F.Supp.3d 1255, 1265 (D. Or. 2021) (citing Nelson v. City of Davis, 685 F.3d 867, 878 (9th Cir. 2012), aff'd sub nom. Senn v. Smith, 2022 WL 822198 (9th Cir. Mar. 18, 2022).
B. Claims Against the County
Bratcher also asserts several tort claims against the County: assault, battery, negligence, and intentional infliction of emotional distress. (See generally FAC.) “Under the Oregon Tort Claims Act, actions against public employees for torts committed in the course of employment must be brought against the public body.” Wagoner v. City of Portland, No. 3:14-cv-2063-AC, 2017 WL 2369399, at *4 (D. Or. May 31, 2017) (citing Or. Rev. Stat. § 30.265(2)). The County seeks summary judgment on all of Bratcher's state law claims.
1. Assault and Battery
Bratcher asserts assault and battery claims based on Deputy Smith's pursuit and use of force to enter Bratcher's home, the alleged tackling and handcuffing, threats to tase him, and placing him in the back of the patrol car. (FAC ¶¶ 23-24, 28.)
The County argues that Deputy Smith “has a complete defense to civil liability for assault and or battery if the officer used force as authorized by statute.” (Cnty. Mot. at 15, citing Wagoner, 2017 WL 2369399, at *10). Under Oregon law, “[a] peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed . . . a misdemeanor.” Or. Rev. Stat. § 133.310(1)(b). However, as previously discussed, there remain disputed questions of fact as to whether Deputy Smith had probable cause to arrest Bratcher, and regarding the amount of force Deputy Smith used.
The County also argues that “there is no evidence that Deputy Smith intended to cause injury [or harm] to [Bratcher].” (Cnty. Defs.' Mot. at 15-16.) The County relies, inter alia, on the fact that “Deputy Smith stopped warning [Bratcher] that he would Tase him after [Deputy Smith] realiz[ed] [Bratcher] has PTSD and a disability.” (Id. at 15, citing Bratcher Depo at 144:5-7.) Notably, the County relies on events which occurred after Deputy Smith allegedly pursued Bratcher, kicked in his door, held him against the wall, threatened to tase him, and handcuffed him. (See id.) The County does not cite any evidence which contradicts Bratcher's claims that Deputy Smith intended to engage in harmful or offensive contact prior to learning that Bratcher was disabled. Viewing the evidence in the light most favorable to Bratcher, a reasonable juror could conclude that Deputy Smith does not have “a complete defense” to Bratcher's assault and battery claims, and therefore the district judge should deny the County's motion for summary judgment on Bratcher's assault and battery claims.
2. Negligence
Bratcher also alleges that Deputy Smith “failed to use the degree of care and judgment that would have been used by reasonably careful officers when he did not follow the proper policies and procedures for effectuating an arrest[.]” (FAC ¶ 31.) The County argues that Bratcher's “negligence claim . . . should not be founded on the same facts that give rise to the § 1983 claims.” (Cnty. Mot. at 17.)
a. Applicable Law
Under Oregon law, a plaintiff asserting a negligence claim must prove: “(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.” Son v. Ashland Cmty. Healthcare Servs., 244 P.3d 835, 841 (Or. Ct. App. 2010).
b. Analysis
Historically, courts in this district have “reject[ed] negligence claims at the summary judgment stage when the negligence claim is based on the same facts as claims under 42 U.S.C. § 1983 or an intentional tort.” Wagoner, 2017 WL 2369399, at *11 (collecting cases). However, a judge in this district recently analyzed the propriety of bringing a negligence claim alongside a Section 1983 claim in Johns v. City of Eugene, No. 6:16-cv-00907-AA, 2018 WL 634519, at *11 (D. Or. Jan. 30, 2018), rev'd on other grounds and remanded, 771 Fed.Appx. 739 (9th Cir. 2019).
In Johns, the court recognized that “for the past thirteen years, i[t] has been the District of Oregon's consistent practice to bar negligence claims from proceeding to trial” “if that claim is based on the same facts that give rise to his constitutional claim under § 1983.” Id. (collecting cases). However, “suggest[ing] that this principle is settled law . . . is a mischaracterization of the effect district court decisions have on future cases.” Id. (citations omitted). After giving “due consideration to the decisions of my colleagues[,]” the court concluded that “neither federal nor Oregon law prohibits negligence claims and civil rights claims based on the same set of facts from proceeding to trial together.” Id. As the court explained, “nothing in the text of § 1983 suggests that Congress intended to preclude state-law negligence claims based on the same facts underlying a civil rights claim.” Id. at *13. “Similarly, nothing in Oregon's case law suggests that § 1983 and negligence claims are inherently incompatible.” Id. Stated differently, there is no rule that requires this Court to reject a negligence claim “simply because it rests on the same factual allegations as a civil rights claim under § 1983.” Id. at *14.
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.) The Court declines to do so because Whitfield is based on the same reasoning as Wagoner. See 2017 WL 2369399, at *11.
The Court adopts the persuasive reasoning in Johns, and recommends that the district judge deny the County's motion for summary judgment on the ground that Bratcher's negligence claim cannot proceed to trial along with his Section 1983 claims. See, e.g., id. (denying the defendant's motion for summary judgment on the plaintiff's negligence claim that mirrored the plaintiff's Fourth Amendment excessive force claim).
This Court addressed a similar issue in Dickerson v. City of Portland, No. 3:19-cv-01126-SB, 2020 WL 7391267 (D. Or. Dec. 16, 2020), aff'd, 2022 WL 824588 (9th Cir. Mar. 18, 2022). In Dickerson, this Court held that the plaintiff could not maintain a separate negligence claim based on the same facts that gave rise to the plaintiff's Section 1983 claim related to the defendant officers' conduct during an arrest. Id. at *9 (“Here, Dickerson's negligence claim is based on the same facts as his related Section 1983 claim and both claims turn on whether it was reasonable for the officers to arrest him. Because the Court has determined that the officers had probable cause to arrest Dickerson, Dickerson may not maintain a separate negligence claim.”). In Dickerson, unlike here, the Court found the defendant officers had probable cause to arrest the plaintiff. Id. Because there remains a question of fact as to whether Deputy Smith had probable cause to arrest Bratcher, Bratcher is not precluded from bringing a separate negligence claim based on the same facts. See id; see also Johns, 2018 WL 634519, at *14.
3. Intentional Infliction of Emotional Distress
Finally, Bratcher asserts an intentional infliction of emotional distress (“IIED”) claim against the County based on Deputy Smith's conduct, including “kicking in [Bratcher's] door, tackling him to the ground, and continually threatening to tase him” in response to Bratcher's “seemingly disobeying and not acquiescing to [Deputy Smith's] service attempt.” (See FAC ¶ 36.)
To prove his claim, Bratcher must demonstrate that “(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” Id. (citing McGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995)). “Whether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law.” Id. (quoting Harris v. Pameco Corp., 12 P.3d 524, 529 (Or. Ct. App. 2000)). “The third IIED element . . . is often dispositive [because] the court plays a gatekeeper role by determining in the first instance whether actions stated in a claim might rise to the level of outrageousness demanded for an IIED claim.” Upchurch v. Multnomah Univ., No. 3:19-cv-00850-AC, 2021 WL 6066283, at *4 (D. Or. Dec. 7, 2021), findings and recommendation adopted, WL 6064027 (D. Or. Dec. 22, 2021).
As to the first element, the County disputes whether Deputy Smith intended to inflict severe emotional distress on Bratcher, arguing that “as soon as Deputy Smith realized [Bratcher] was disabled and no longer attempting to flee or assault him, Deputy Smith allowed [Bratcher] to sit on the stairway, be handcuffed in front, and retrieve his cell phone and medical devi[c]e.”(Cnty. Defs.' Mot. at 19.) As to the second element, the County does not dispute or address whether Deputy Smith's actions were the cause of Bratcher's severe emotional distress, or whether Bratcher did, in fact, experience severe emotional distress. As to the final element of an IIED claim, the County argues that Deputy Smith's actions “simply do[] not constitute a transgression sufficiently extraordinary to meet the requirements for [Bratcher's] IIED claim.” (Id. at 18.)
The County does not address whether Deputy Smith's actions leading up to Bratcher's arrest were intended to cause Bratcher severe emotional distress.
The record reflects that earlier in the day, prior to the interaction forming the basis of this lawsuit, Deputy Smith had visited Bratcher's property to serve a small claims notice on Bratcher's wife. (Smith Decl. ¶ 2.) When Bratcher refused to accept service, Deputy Smith told Bratcher he would “attempt service at 3:00 a.m.” (Id. ¶ 3.) Bratcher then called Polk County and spoke to Deputy Smith's superior, Sergeant Ball, to report that Deputy Smith had been “rude” and “disrespectful.” (Ball Decl. ¶ 2.) Sergeant Ball then “called Deputy Smith . . . [and] suggested that Deputy Smith return to [Bratcher's] home and smooth it over[.]” (Id. ¶ 4.) A later investigation into Deputy Smith's conduct found that his “initial contact with Mr. Bratcher and his comment about coming back at 3 a.m. seemed spiteful, more than informative [and that t]his comment by Deputy Smith was more likely than not the catalyst that set this incident in motion[.]” (Sheriff's Memo. at 3.) The investigation also concluded that “Deputy Smith's return visit to Mr. Bratcher was problematic” and that Deputy Smith escalated the situation and may have acted out of frustration, resulting in the present lawsuit. (See Sheriff's Memo. at 3-5.)
While Bratcher does not allege that this earlier interaction with Deputy Smith contributed to his emotional distress, the Court must nevertheless “consider the specific circumstances surrounding the alleged misconduct[.]” See Upchurch, 2021 WL 6066283, at *5.
Viewing the facts in the light most favorable to Bratcher, Deputy Smith kicked down the door of Bratcher's home, repeatedly threatened to tase him, held him against a wall, and handcuffed him, in response to alleged littering. “Intentionally causing another person severe emotional distress by exposing that person to a threat of imminent physical harm is, or may be, outside the bounds of socially tolerable behavior.” Babick v. Oregon Arena Corp., 333 Or. 401, 413 (2002). Furthermore, the County's own investigation called into question whether Deputy Smith's was “spiteful” and whether he was acting “emotionally” or out of “frustration.” (Sheriff's Memo. at 4.) “Conduct intentionally or deliberately engaged in-for example, with an ulterior motive, or for retribution, or for some other offensive purpose . . . is far more likely to meet the standard for outrageousness than conduct that is merely negligent.” Delaney v. Clifton, 180 Or.App. 119, 136 (2002).
On the present record and under the totality of the circumstances, the Court finds that a reasonable juror could conclude that Deputy Smith's conduct towards Bratcher was sufficiently outrageous to support an IIED claim, and therefore the Court recommends that the district judge deny Defendants' motion for summary judgment on Bratcher's IIED claim.
CONCLUSION
For the reasons discussed above, the Court recommends that the district judge GRANT the City's motion for summary judgment (ECF No. 30) and DENY the County's motion for summary judgment (ECF No. 34).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.