Opinion
3:21-cv-00984-HZ
10-26-2022
Tyler Cox, individually, Plaintiff, v. City of Portland, a municipal corporation, and Thomas Clark, in his individual capacity, Defendants.
Joseph E. Piucci, Stephone V. Piucci, Piucci Law, LLC Christopher Marin Hamilton CBMH Law, Inc. Attorneys for Plaintiff William W. Manlove, III City of Portland Attorneys for City of Portland. Andrew D. Campbell Heltzel Williams PC Attorneys for Defendant Thomas Clark.
Joseph E. Piucci, Stephone V. Piucci, Piucci Law, LLC Christopher Marin Hamilton CBMH Law, Inc. Attorneys for Plaintiff
William W. Manlove, III City of Portland Attorneys for City of Portland.
Andrew D. Campbell Heltzel Williams PC Attorneys for Defendant Thomas Clark.
OPINION & ORDER
MARCO A. HERNÁNDEZ, United States District Judge.
This matter comes before the Court on Defendant Thomas Clark's Partial Motion to Dismiss [8]. For the reasons that follow, the Court denies Clark's Motion.
BACKGROUND
The following facts are taken from Plaintiff's Complaint and the parties' filings related to Defendant Clark's Motion to Dismiss and are taken as true unless otherwise noted.
On August 31, 2020, individuals gathered in the Pearl District of Portland, Oregon for a Black Lives Matter protest. Plaintiff Tyler Cox was present at the protest and volunteering as a medic.
At 11:04 p.m. on August 31, 2020, Portland Police made the following announcement via a “sound truck” to the protestors:
This is the Portland Police Bureau. To those in the area of N.W. 10th Avenue and N.W. Glisan Street: this has been declared an unlawful assembly. Officers have observed people gathered participate in vandalism, fire starting and burglary. All persons must immediately leave the area by travelling to the West. Failure to adhere to this order may subject to you arrest, citation, or crowd control agents, including but not
limited to, tear gas and/or impact weapons. Leave the area by travelling to the West now.Decl. of Amy Bruner-Dehnert, Ex. 11 [ECF 10]. At 11:07 p.m., the police made the following announcement via the Sound Truck:
This is the Portland Police Bureau. To those in the area of N.W. 10th Avenue and N.W. Glisan Street: this has been declared a riot. Officers have observed people gathered participate in vandalism, fire starting and burglary. All persons must immediately leave the area by travelling to the West. Failure to adhere to this order may subject to you arrest, citation, or crowd control agents, including but not limited to, tear gas and/or impact weapons. Leave the area by travelling to the West now.Bruner-Dehnert Decl, Ex. 2. The police made a similar announcement at again at 11:09 p.m. At 11:11 p.m., police made an announcement directing individuals to allow fire personnel safe access. Police made three more announcements at 11:12 p.m., 11:14 p.m., and 11:24 p.m., declaring a riot and instructing all persons to move west. Id., Ex. 3.
At approximately 11:25 p.m. the crowd, including Plaintiff, was moving to the west on N.W. Glisan Street between N.W. 11th and 12th Avenues. As the crowd reached the intersection of N.W. Glisan Street and N.W. 12th Avenue a group of police officers forced the crowd to turn north on 12th Avenue. Plaintiff alleges that after the crowd turned north onto N.W. 12th Avenue and began walking towards N.W. Hoyt Street a group of police officers still on N.W. Glisan Street began a “bull rush” towards N.W. 12th Avenue.
Plaintiff alleges in his Complaint that a “bull rush” is “a police crowd dispersal tactic in which officers, in a line, sprint at a crowd and then push, strike, pepper spray, and otherwise utilize indiscriminate violence against those in their way.” Compl. ¶ 23.
When the “bull rush” reached the intersection of N.W. Glisan Street and N.W. 12th Avenue the police officers converged with other police officers who had approached from the south on N.W. 12th Avenue. The police officers began to form a new line facing north on N.W. 12th Avenue, towards the protesters who were dispersing north towards N.W. Hoyt Street approximately half a block away from the line of police officers.
Plaintiff alleges Defendant Portland Police Officer Thomas Clark did not join the officers in the line of officers, rather he “sprinted - by himself - towards the crowd of retreating protesters.” Compl. ¶ 25. According to Plaintiff, Clark “lunged at Plaintiff, grabbed him from the side with two hands, lifted Plaintiff's feet off the ground, and slammed his head into the pavement. As Plaintiff's head bounced off the curb, Clark brought his elbow down on Plaintiff's head and face, while simultaneously rolling Plaintiff over to put his knee on Plaintiff's chest.” Id. ¶¶ 27-28. Clark then “brought his weight down on Plaintiff's torso and covered Plaintiff's face with one hand while pressing the other against Plaintiff's neck.” Id. at ¶ 29. Plaintiff extended both of his arms with his palms out to protect his head and in doing so he brushed Clark's face shield, which caused Clark's helmet to come off because it was not strapped to his chin. Clark repeatedly punched Plaintiff in the face. Plaintiff shouted “I'm not fighting you,” but Clark grabbed Plaintiff's bike helmet and “ripped it off while it was still attached to [Plaintiff's] head.” Id. at ¶ 34. Clark then rolled Plaintiff onto his stomach and, with assistance from other police officers, tied Plaintiff's wrists behind his back and placed Plaintiff in a “mass-arrest van.” Id. at 35.
Plaintiff was charged with Assaulting a Public Safety Officer, Resisting Arrest, Interfering with a Peace Officer, and Disorderly Conduct in connection with the events of August 31, 2020. On November 4, 2020, the charges were dismissed.
On July 1, 2021, Plaintiff filed a Complaint in this Court against Clark and the City of Portland. Plaintiff brings claims against Clark pursuant to 42 U.S.C. § 1983 for excessive force and unlawful arrest in violation of Plaintiff's Fourth Amendment rights as well as state-law claims for battery, negligence, and false arrest. Plaintiff brings a claim against the City of Portland pursuant to 42 U.S.C. § 1983 for unconstitutional policy, custom, or practice in violation of Plaintiff's Fourth Amendment rights and a claim for negligence under state law.
On October 29, 2021, Clark filed a Partial Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court took the Motion under advisement on December 10, 2021.
STANDARDS
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) ("[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency[.]") (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier, 106 F.3d at 847 (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court).
DISCUSSION
Clark moves to dismiss Plaintiff's state law claims against him pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis that the Oregon Tort Claims Act (“OTCA”) did not waive sovereign immunity for Plaintiff's state-law claims under the circumstances of this case. Specifically, Oregon Revised Statute § 30.265(6)(e) provides:
Every public body and its officers, employees and agents acting within the scope of their employment or duties . . . are immune from liability for . . . [a]ny claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing.
Clark asserts the events at the time of his actions at issue in this matter occurred during a “riot, civil commotion, or mob action” or in connection with the prevention of a “riot, civil commotion, or mob action,” and, therefore, pursuant to § 30.265(6)(e), the OTCA did not waive sovereign immunity for Plaintiff's state law claims against Clark.
Plaintiff asserts the Court should deny Clark's Motion because it raises a facial rather than a factual challenge to the Court's jurisdiction and Plaintiff's allegations are sufficient on their face to establish jurisdiction. Clark, on the other hand, asserts he raises a factual challenge to jurisdiction and Plaintiff has not met his burden to establish jurisdiction under the factual challenge standard.
I. Facial or Factual Challenge
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)(citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial “attack accepts the truth of the plaintiff's allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014)(quoting Safe Air for Everyone, 373 F.3d at 1039)). See also Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020)(same). The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): “Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite, 749 F.3d at 1121 (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.2013)).
“A factual attack, by contrast, contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Leite, 749 F.3d at 1121 (citation omitted). See also Safe Air for Everyone, 373 F.3d at 1039(“[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.”). “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.2003)). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n.2.
The Ninth Circuit has made clear that a “[j]urisdictional finding of genuinely disputed facts is inappropriate when ‘the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits' of an action.” Safe Air, 373 F.3d at 1039 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th Cir. 1983)).
II. Analysis
Plaintiff asserts Clark raises a facial challenge to this Court's jurisdiction because Clark does not dispute any of the allegations in Plaintiff's Complaint and asserts his Motion is “based on the face of the Complaint.” Mot. to Dismiss 5-6. Plaintiff contends accepting all of his allegations as true and drawing all inferences in his favor the Court should conclude Plaintiff's allegations are sufficient to invoke the Court's jurisdiction.
Clark, on the other hand, asserts he raises a factual challenge to this Court's jurisdiction because he does not assert the Complaint lacks operative facts, rather he contends “the underlying contextual facts in this case (place and time) rob the Court of jurisdiction” and he relies on evidence beyond the Complaint to support his challenge. Def.'s Reply 2. Specifically Clark relies on ten videos taken by Vance Nebling, a criminalist with the Forensic Evidence Division of the Portland Police Bureau, on August 31, 2020; an affidavit of Amy Bruner-Dehnert, a Portland Police Officer on duty on August 31, 2020; Bruner-Dehnert's September 1, 2020 report; and a video of Plaintiff's arrest taken from a “publicly available Twitter page.” Campbell Decl., Ex. 12 [ECF 11].
The Court finds it need not determine whether Clark's challenge to this Court's jurisdiction is facial or factual because the Court concludes that under either standard Clark's challenge fails. Specifically, applying the facial challenge standard: taking Plaintiff's allegations as true and drawing all reasonable inferences in Plaintiff's favor, the Court concludes Plaintiff's allegations are sufficient to establish this Court has jurisdiction.
As to the factual challenge standard, Clark asserts “it is beyond any reasonable debate that [Clark's] conduct . . . arose out of a riot, moment of civil commotion or mob action.” The OTCA, however, does not define the terms riot, civil commotion, or mob action and neither party cites any case that defines those terms. In fact, “[t]here is little caselaw interpreting this provision, including what constitutes a ‘riot, civil commotion or mob action.'” McCrae v. City of Salem, No. 6:20-CV-01489-MC, 2022 WL 833213, at *7 (D. Or. Mar. 21, 2022).
Clark asserts two cases support his position that § 30.265(6)(e) applies and Plaintiff's state-law claims should be dismissed because sovereign immunity has not been waived: Albers v. Whitley, 546 F.Supp. 726 (9th Cir. 1986), reversed on other grounds 475 U.S. 312 (1986); and Hicks v. City of Portland, No. CV 04-825-AS, 2006 WL 3311552 (D. Or. Sept. 13, 2006), report and recommendation adopted, No. CV 04-825-AS, 2006 WL 3311552 (D. Or. Nov. 8, 2006). In Albers the court held the plaintiff's state-law claims for negligence and battery were barred by § 30.265(6)(e) (formerly numbered § 30.265(3)(e)). The court, however, reached that conclusion at the end of a jury trial and on a motion for directed verdict. Similarly, in Hicks the court held the City of Portland was “immune from liability” as to the plaintiff's battery claim because “Or. Rev. Stat. § 30.265(3)(e), .... insulates public officers and bodies from liability under State law for “[a]ny claim arising out of riot, civil commotion, or mob action or out of any act or omission in connection with the prevention of any of the foregoing.” 2006 WL 3311552, at *16. The court, however, reached that conclusion on a full record developed at summary judgment. These cases, therefore are distinguishable and of limited assistance in deciding Clark's Motion to Dismiss.
Initially, the Ninth Circuit reversed the district court's application of qualified immunity but affirmed its application of the OTCA. Albers v. Whitley, 743 F.2d 1372 (9th Cir. 1984). The Supreme Court reversed the Ninth Circuit as to qualified immunity but not as to application of the OTCA. 475 U.S. 312 (1986). On remand, the Ninth Circuit affirmed the district court as to both qualified immunity and application of the OTCA. 788 F.2d 650 (9th Cir. 1986).
In addition, the parties dispute the nature of the events that were occurring at the time of Clark's interaction with Plaintiff. The ten videos taken by Nebling on which Clark relies show police officers directing individuals to particular areas and reflect numerous individuals walking by police, conforming to orders, and taking videos. Bruner-Dehnert's report states she was assigned to the sound truck on August 31, 2020; “there were reports of criminal activity within the protest”; the sound truck made various announcements to the crowd; and when directed, “[t]he protesters complied and left the area and the fire truck was able to safely enter.” Bruner-Dehnert Decl., Ex. 11 at 2. Finally, the video of Plaintiff's arrest begins only eight seconds before Clark's contact with Plaintiff and reflects police moving towards a crowd of protestors and protestors moving away from the police at a fast walk or jog. Plaintiff relies on his Declaration in which he testifies he attended the protest as a medic; he “did not participate in any violence against any police officer or any other individual . . . [and] [t]o the best of [his] ability, . . . complied with all police directives and orders that [he] heard”; and in the “minutes preceding [Plaintiff's arrest], [he] did not see protesters damaging any property. [He] did see a large group of protesters complying with police orders to disperse.” Cox Decl. ¶¶ 6-7 [ECF 142]. The Court cannot conclude on the evidence before it that as a matter of law a riot, civil commotion, or mob action was occurring at the time of the events in question or that § 30.265(6)(e) applies and deprives this Court of jurisdiction.
This case is similar to McCrae in which the plaintiff was injured during a protest. The plaintiff brought an action against the City of Salem, among others, asserting claims for, among other things, assault and battery. Defendants asserted the City was entitled to summary judgment on the plaintiff's assault and battery claims because the City was immune from liability under § 30.265(6)(e). The court, however, declined “to grant summary judgment based on Or. Rev. Stat. § 30.265(6)(e) immunity.” 2022 WL 833213, at *7 n.4. The court noted “[t]here is little caselaw interpreting this provision, including what constitutes a ‘riot, civil commotion or mob action' [and] . . . issues of disputed fact regarding the overall nature of the crowd preclude[d] the Court from determining whether [§ 30.265(6)(e)] applies.” Id.
The plaintiff initially brought these claims against Salem Police Officer Johnston, but conceded the City of Salem was the appropriate defendant for these claims. Accordingly, the court dismissed Plaintiff's battery and assault claims against Johnston.
Here, as in McCrae, the record is not sufficiently developed for the Court to determine as a matter of law that Plaintiff's claims for battery and negligence arose out of a “riot, civil commotion or mob action” or “out of any act or omission in connection with the prevention of “ a riot, civil commotion, or mob action. The Court, therefore, denies Defendant Clark's Partial Motion to Dismiss on the basis of immunity under § 30.265(6)(e).
CONCLUSION
The Court denies Defendant Thomas Clark's Partial Motion to Dismiss [8] .
IT IS SO ORDERED.