Opinion
3:19-cv-01404-JR
11-16-2021
EDWARD HERNANDEZ, Plaintiff, v. JEFFERSON COUNTY SHERIFF'S OFFICE; RON LARSON, JIM ADKINS, and STEVE KEEVER, as agents and individuals; JEFFERSON COUNTY PUBLIC WORKS DEPT.; CITY OF METOLIUS, an Oregon limited liability corporation; MADRAS CITY POLICE DEPT.; JOHN DOE 1, as an agent and individual; OREGON STATE POLICE DEPT.; JOHN DOE II, as an agent and individual; BAGGETT, INC., an Oregon corporation; LEE BAGGETT and JUAN JOSE-CRUZ RODRIGUEZ, as agents and as individuals; BARRY DAVIDSON, an individual; and ROBERT MARRAZZO, as an individual, Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Now pending before the Court are defendants' Jefferson County Sheriff's Office (“JCSO”), Ron Larson, Jim Adkins, Steve Keever, Jefferson County Public Works Department (“JCPW”), City of Metolius (“Metolius”), and Madras City Police Department's (“MPD”) (collectively “Government defendants”) motion for summary judgment (ECF 100) and defendants Juan Jose-Cruz Rodriguez, Baggett, Inc., and Lee Baggett (collectively “Baggett defendants”) motion for summary judgment (ECF 106). For the following reasons, defendants' motions should be GRANTED.
BACKGROUND
I. History of The Disputed Property
This case revolves around a fence, its removal, and the disputes between the Baggett and Government defendants and plaintiff that ensued. Shari Marrazzo (“Ms. Marrazzo”) owned the property at issue-3435 SW Columbia Drive, Metolius, Jefferson County, Oregon (“the Property”). See ECF 101-1, Robert Marrazzo Decl. There are two other plots close to the Property. Id. To the north is a 4.38-acre parcel of land previously owned by Ms. Marrazzo but sold to the Ryun family on July 3, 2017 (“Ryun Property”). Id. There was a fence located on the northern border of the Ryun Property that extended across 6th Street. Id. This fence does not border the Property, nor has the Property previously held any ownership interest over the Ryun Property's fence. Id. To the northeast is a parcel of land owned by Metolius Land Properties, which had a barn that Ms. Marrazzo used with permission of the owner. Id. Defendants provided this map of the properties, which plaintiff does not dispute:
(Image Omitted)
There is also no disputed issue of material fact concerning whether Sixth Street-where plaintiff was arrested-was public land. The Metolius defendants submitted a Declaration with their Motion for Summary Judgment showing that Sixth Street was “dedicate[d] to the use of the public” by the Inland Empire Company on April 22, 1911. Hanenkrat Decl. ¶ 5. Nothing in plaintiff's declaration disputes the validity of this document or calls into question the City's ownership. Plaintiff instead argues the land was adversely possessed, even though an individual cannot acquire title to real property owned by a City. ORS 221.705 (“The right of cities and towns, whether incorporated or not, to land dedicated to or otherwise for the public use for streets, highways, parks or public places, shall not be extinguished by any adverse possession…”).
Ms. Marrazzo passed away in September 2016, and her son, Robert A. Marrazzo (“Marrazzo”), was named executor of her estate under her will. Id. At the time of Ms. Marrazzo's death, the property was encumbered with loans that were owned by CIT Bank, N.A. Id. Ms. Marrazzo's death constituted a default under the terms of the loan, so CIT Bank gave Marrazzo the option to buy, sell, deed in lieu of, or allow foreclosure of the Property. Id. After requesting several extensions of time from CIT Bank to prepare the property for sale, Marrazzo listed the Property for sale in its then-present condition. Id.
On January 27, 2017, Marrazzo's real estate agent, Corey Graves, listed the property for sale. Id. The listing for the Property provided the following: “Buyer to do due diligence, seller does not know exact location of property boundaries” and, “Barns & Corrals were used by seller but are not included in sale, they are not on the seller's property.” Id.
On April 12, 2017, plaintiff and his significant other, Rosanna Lopez, submitted an offer to purchase the Property. Id. Plaintiff and Lopez exchanged several counteroffers with Marrazzo before agreeing to terms on April 13, 2017. Id. The final terms included the following: 1) The lease to Baggett to be terminated (at minimum seven days before closing) for Buyer inspection; 2) Personal property outside will be left as-is; 3) Seller does not know exact location of property boundaries and makes no representations to existing property boundaries; and 4) Irrigation equipment is owned by others and will be removed before closing. Id.
On May 15, 2017, Marrazzo agreed to allow plaintiff and Lopez to park their trailer on the Property prior to the sale closing, in order to clean up the property. Id. Without Marrazzo's consent, plaintiff and Ms. Lopez moved onto the property on May 15, 2017, and instead of occupying their trailer, moved into the home. Id.
Over several months, the parties to the sale agreed to multiple extensions to the closing date due to plaintiff's failure to secure financing. Id. On August 17, 2017, after plaintiff and Lopez again failed to secure financing by the closing date, Marrazzo issued plaintiff and Lopez a transaction termination letter and 10-day notice to vacate the Property. Id. Plaintiff and Lopez failed to vacate, and, after additional negotiations, the parties agreed to another addendum extending the closing date to September 30, 2017. Id.
By the end of October 2017, plaintiff still had not closed on the property. Id. On October 25, 2017, CIT Bank filed an action seeking judicial foreclosure of the Property. CIT Bank, N.A. v. Estate of Marrazzo, No. 17-cv-1948-YY. ECF 1-1.
While CIT Bank's case was pending, on February 15, 2018, Metolius Public Works Supervisor Patrick Hanenkrat sent a letter to Marrazzo, as the Personal Representative of the Estate of Shari Marrazzo, regarding the fence and gate constructed on 6th Street. ECF 105, Hanenkrat Decl. ¶ 3. Hanenkrat explained that “the fence and gate for that 6th street access extends 25 feet into the 6th street right of way.” Id. Hanenkrat advised that, “While this portion of 6th street is within Jefferson County, the street is used by city residents for access to their properties.” Id. He further explained that there are “modifications to the gate location that can be made on your property line, so you can maintain security, but that portion of the fence that is located within 6th street does need to be removed.” Id. Hanenkrat included a photograph of the gate that was placed in the middle of 6th Street. Id. Upon receipt of Mr. Hanenkrat's letter, Marrazzo notified the Ryun Property's owner of the fence issue as the fence was located solely on the Ryun Property and provided them with a copy of the letter. See ECF 101-1 Marrazzo Decl.
As a result of the City's border shifting, parts of Sixth Street now lie within the City of Metolius, and parts lie outside of City limits and are part of Jefferson County. ECF 105, Hanenkrat Decl. ¶ 6. Due to this shift, street maintenance personnel from Metolius and Jefferson County each believed that the other agency was responsible for maintaining Sixth Street such that neither agency maintained the street. Id. However, Metolius residents used Sixth Street to access their properties. Id.
On March 18, 2018, plaintiff called the JCSO dispatch to report that someone had taken down the gate referred to in Mr. Hanenkrat's letter. ECF 103, Larson Decl. ¶ 4. In addition to the gate removal, plaintiff reported that tires were dumped on his property. Id. Deputy Larson contacted plaintiff and plaintiff told him that someone had taken down a gate on the east end of 6th Street in Metolius, Oregon. Id. Plaintiff showed Deputy Larson the gate, which plaintiff had put back up, and some old tractor tires which were dumped by a barn. Id. As Deputy Larson was leaving the property, plaintiff mentioned something about “Adverse Possession.” Id. As a result of his conversation with plaintiff, Deputy Larson believed he needed to review Jefferson County records to determine the legal owner of the property plaintiff claimed as his. Id. ¶ 5. Deputy Larson's research revealed that plaintiff was not the legal owner of the property. Id. Deputy Larson also found that plaintiff was involved in litigation regarding the Property. Id.
On March 25, 2018, defendant Jefferson County Sheriff Jim Adkins received a voicemail message from plaintiff. ECF 102, Adkins Decl. ¶ 7. In his message, plaintiff reported that he had an incident on his property approximately ten days prior. Id. Plaintiff stated that he called the Sheriff's Office and one of Sheriff Adkins' Deputies responded and then took about a week to get back to him, only to report that he could not do anything for plaintiff. Id. Plaintiff asked to meet with Sheriff Adkins that day because he could not be left unprotected, or for the Sheriff to call him back. Id. Sheriff Adkins had received messages from plaintiff before, but not for about two years. Id. Sheriff Adkins did not speak with any of his Deputies regarding plaintiff's March 25, 2018, voicemail message because he believed the plaintiff's allegation regarding his ownership of the Property was being determined by the Court and did not raise any criminal law enforcement issues. Id. ¶ 8.
II. The April 4, 2018 Confrontation Between Plaintiff and Baggett Defendants
On April 4, 2018, Deputy Larson went to 6th Street in Metolius to investigate the report of gun threats. ECF 103, Larson Decl. ¶ 6. Deputy Larson arrived at the gate on 6th Street at approximately 11:02 a.m. and met with plaintiff. Id. Plaintiff reported that two men were trying to take down his fence and that he had told them to stop. Id. As soon as Deputy Larson contacted plaintiff, he read him his rights under Miranda. Id. Deputy Larson asked plaintiff if he had threatened the men and plaintiff told him that he had not and said that he “asked the guy to stop and he didn't want to, so I asked this guy to stop, and he didn't want to” in reference to Baggett and his employee Juan Jose Cruz Rodriguez. Id. Plaintiff told Deputy Larson that he told Baggett and Rodriguez that he was “going to his house and get his right arm.” Id.
Jefferson County Deputy Steve Keever was also dispatched on the call and went to the nearby Metolius Market and met with Baggett at approximately 10:54 a.m. ECF 104, Keever Decl. ¶ 5. Deputy Keever saw that Baggett was upset and appeared in fear for himself and his employee, Rodriguez. Id. Deputy Keever was familiar with Baggett based upon multiple reports that Baggett had made to the Sheriff's Office. Id. In these prior contacts, Deputy Keever found Bagged to be a truthful and valid reporting party. Id. Baggett told Deputy Keever that plaintiff confronted him as he was taking down a fence that he was contracted to remove. Id. ¶ 6. Baggett related that plaintiff said he was going to the house to get a gun and if Baggett was still there when he returned, he would shoot him. Id. Baggett said that plaintiff then went to his worker and said basically the same thing. Id. Baggett reported that he did not observe a gun but was not waiting to find out if plaintiff returned from the home with a gun. Id.
After speaking with Baggett and Rodriguez, Deputy Keever drove to 6th Street and saw Deputy Larson speaking with plaintiff. Id. ¶ 7. After Deputy Larson finished speaking with plaintiff, Deputy Keever told Deputy Larson about his interview of Baggett. Id. Baggett and Rodriguez arrived at 6th Street shortly after Deputy Keever. Id. Deputy Larson then spoke with Baggett who told him that he was hired to take down the fence which was on the 6th Street right of way in Metolius. Id. Baggett said that he asked a Metolius worker to show him where to take the fence down and, while he and Rodriguez were working on the fence, plaintiff arrived and told them to stop working. Id.
Baggett told Deputy Larson that he told plaintiff that he was hired to take the fence down and that the City worker had showed him which fence to take down. Id. Baggett said that plaintiff told him that he was going to his house to get a gun and that if they were still there when he got back, he would shoot him. ECF 101, Montoya Decl. ¶ 5; Baggett Decl. ¶¶ 11, 12. Deputy Larson then interviewed Rodriguez who reported that plaintiff said that he would either shoot or kill him and Baggett if they did not stop working on the fence. Id. After interviewing Baggett and Rodriguez, Deputy Larson arrested plaintiff. ECF 103, Larson Decl. ¶ 7.
On April 13, 2018, the Jefferson County District Attorney's Office filed an Information with the Court, accusing plaintiff of two counts of Menacing in violation of ORS 163.190. ECF 101 Montoya Decl. ¶ 6. On April 30, 2018, plaintiff filed a Motion to Dismiss the criminal case against him. Id. ¶ 7. In his Motion to Dismiss, plaintiff cited ORS 161.225(2)(b) and argued that “a person may use deadly force when the person reasonably believes it is necessary to prevent the commission of a felony by force or violence by the trespasser.” Id. at 16. Plaintiff argued that as Baggett was a “trespasser, ” the menacing charges against him should be dismissed. Id. The Court denied plaintiff's Motion to Dismiss on May 23, 2018. Id. ¶ 9. On September 4, 2018, the Court dismissed the criminal case against plaintiff pursuant to the state's motion. Id. ¶ 10.
On September 3, 2019, plaintiff brought this action alleging a laundry list of grievances against defendants. ECF 1. On November 19, 2019, a summons was issued as to “Jim Adkins, Lee Baggett, Baggett, Inc., Metolius, Barry Davidson, Jefferson County Public Works Dept., JCSO, Steve Keever, Ron Larson, Madras City Police Dept., Robert Marrazzo, Oregon State Police Dept., Juan Jose-Cruz Rodriguez.” ECF 11. On January 27, 2020, plaintiff filed his “Certificate of Service.” ECF 17. In this document, plaintiff “certify[ies] that on the 19th day December 2019, a copy of COMPLAINT, SUMMONS, and COURT SCHEDULING ORDER was sent via first-class U.S. mail, postage prepaid, upon the following parties….” Id. (emphasis in original). Plaintiff then provides a list of these defendants and their respective addresses as well as individual Proof of Service documents. Id.
On July 3, 2020, plaintiff filed his First Amended Complaint adding Officer Michael Rochelle. ECF 56. On August 4, 2020, Summons was issued as to defendant Michael Rochelle. ECF 65. The record does not reflect that plaintiff filed a Certificate of Service for defendant Rochelle.
LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
I. Plaintiff's Complaint Should be Dismissed for Improper Service
Though typically raised in a pre-answer motion, the Court recognizes that because defendants asserted the defense of insufficient service of process in their Answer, that defense was not waived. Fed.R.Civ.P. 12(h)(1) (recognizing that a party waives the defense of insufficient service of process if it does not assert that defense in its answer or by pre-answer motion).
1. Plaintiff Did Not Properly Serve the Government Defendants
Plaintiff's claims against defendants Sheriff Adkins, Deputy Larson, Deputy Keever and Officer Rochelle should be dismissed for failure to serve them within the required time period. “If a defendant is not served within 90 days after the complaint is filed, the court, on motion or on its own… must dismiss the action….” Fed.R.Civ.P. 4(m). To date, plaintiff has not properly served any of these defendants. Absent valid service, this court has no jurisdiction over these individual defendants.
The Federal Rules of Civil Procedure require that proper service upon individual defendants must be made by delivering a summons along with a copy of the Complaint to the individual personally, at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2). Additionally, the Federal Rules recognize as valid any service effectuated according to the laws of the state in which service is performed. Fed.R.Civ.P. 4(e)(1).
Pursuant to ORCP 7D, service upon an individual must comply with the following requirements:
Upon an individual defendant, by personal delivery of true copies of the summons and the complaint to the defendant or other person authorized by appointment or law to receive service of summons on behalf of the defendant, by substituted service, or by office service.ORCP 7D(3)(a)(i). Plaintiff attempted to serve Sheriff Adkins, Deputy Larson, and Deputy Keever by mailing a copy of the Summons and Complaint via first class mail through the U.S. Postal Service. ECF 17. Service by mail under Oregon law is only permitted by order of the Court after reasonable efforts have been made to serve the defendant by the other methods listed above. ORCP 7D (6)(a); ORCP 7D(6)(d). And, even if the Court had permitted service by mail, Plaintiff still failed to comply with the rules regarding service on an individual by mail. ORCP 7(2)(d)(i) provides that service on an individual by mail may be accomplished by:
“mailing a true copy of the summons and the complaint to the defendant by first class mail and by any of the following: certified or registered or- express mail with return receipt requested.”(emphasis added). Judge Simon reinforced to plaintiff that “[s]ervice under Oregon law requires more than only service by first class mail. It requires service by first class and registered or certified mail.” ECF 55 at 8.
Plaintiff's Certificate of Service is evidence that his only service attempt was by first class mail, without first obtaining leave of the Court or complying with the rule requiring that his mailing be certified, registered or express mail with return receipt requested. And, as to Officer Rochelle, plaintiff submitted a return receipt with his response to defendants' motions for summary judgment but failed to substantiate that the return receipt was related to a service attempt on Officer Rochelle. In other words, plaintiff has failed to meet his evidentiary burden to demonstrate that Officer Rochelle received adequate service as he submits nothing but a return receipt without any evidence of what was actually mailed and signed for in the mailing. This Court therefore lacks jurisdiction over the individual defendants and should grant summary judgment in favor of defendants Adkins, Larson, Keever, and Rochelle.
Plaintiff likewise failed to properly serve the institutional government defendants: JCSO, Metolius, MPD, and the JCPW. As explained above, the Federal Rules recognize as valid any service effectuated according to the laws of the state in which service is performed. Fed R Civ P 4(e)(1). ORCP 7 D(3)(h) provides that: “A county, incorporated city, school district, or other public corporation, commission, board, or agency may be served by personal service or office service on an officer, director, managing agent, or attorney thereof.” Here, plaintiff's first-class mailing is not one of the methods permitted for service on public body defendants, and there is no evidence that plaintiff's office service of these defendants was appropriate under Oregon Rule of Civil Procedure 7, as these entities are either not “public bodies” in the case of JCSO, JCPW, and MPD, and plaintiff has not presented admissible evidence that service was effected on “an officer, director, managing agent, or attorney” of these defendants. Since plaintiff has failed to properly serve these defendants, this Court lacks jurisdiction over them, and should likewise grant summary judgment in favor of defendants.
The Court could alternatively dismiss the case against JCSO, MPD and the JCPW because they are no separate legal entities subject to suit. See Keller v. City of Portland, 1998 WL 1060222 at *3-4 (D. Or. 1998) (“A city police department is not a separate entity from the city itself and thus is not amenable to suit. It is merely the vehicle through which the city fulfills its policing functions. Suit must be brought against the city itself.”). Because these defendants are departments within Jefferson County and the City of Madras that are tasked with carrying out law enforcement, not separate legal entities or separately created public bodies, or “persons” subject to Section 1983 liability, they are also entitled to judgment as a matter of law on that basis.
2. Plaintiff Did Not Properly Serve the Baggett Defendants
In the January 28, 2020 Certificate of Service, plaintiff certified that copies of the Complaint, Summons and Court Scheduling Order were sent to each of the Baggett defendants “via first-class U.S. mail, postage prepaid” at the same address: 1007 NE Lancaster Drive, Madras, Oregon 97741 (“1007 Lancaster Drive”). ECF 17 at 2. As set forth above, attempted service by sending the Summons and Complaint by regular mail alone is insufficient. Based on Hernandez's Certificate of Service, defendants Baggett and Rodriguez were not served by registered or certified mail, nor was an appropriate agent of Baggett, Inc. Plaintiff's service on the Baggett Defendants was therefore insufficient under Oregon law.
There is also no evidence plaintiff served the Baggett defendants under the alternative methods set forth in Rule 4(e)(2) and 4(h)(1)(B). See, Gordon v. United Rentals, Inc., No. CV-09-1344-HU, 2010 WL 1039609, at *3 n. 1 (D. Or. March 12, 2010). As to defendant Rodriguez, even the Summons and Complaint that was mailed did not go to a person or entity authorized to receive service for him under either Oregon or federal requirements- it was sent to his former employer. Baggett Decl. ¶ 4 In short, summary judgment should be granted in favor of the Baggett defendants because plaintiff's attempts to serve them were insufficient.
II. Plaintiff's First Amendment Claim is Deficient as a Matter of Law
Plaintiff brings his first claim against “[t]he JCSO and its agencies, ” blaming Sheriff Adkins, as the head of the Sheriff's Office, “for not taking action, for not listening to my grievance, for not responding to my phone calls, for not responding to my emails, and then for allowing his agent to continue his unlawful action.” Montoya Decl. ¶ 6. Plaintiff believes that the Sheriff's Office is liable because, “[w]hen a crime is reported, you're supposed to go and conduct a thorough investigation and look at all the evidence and not just one party's side-one side and that's it.” Id. In essence, plaintiff alleges his First Amendment rights were violated because JCSO did not adequately investigate his grievance.
To demonstrate a First Amendment violation, plaintiff must provide evidence showing that the defendants' actions deterred or chilled his protected First Amendment activity. Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994). While the plaintiff need not show that his speech was actually deterred or chilled, he must show that defendants' actions “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 464 (9th Cir. 1994). Plaintiff has not adequately pled this claim and has not produced any evidence of the essential elements: constitutionally protected activity that defendants' adverse actions have caused a chill from future similar activity. And plaintiff's response brief does not point the Court to any such evidence. See ECF 111. At the summary judgment stage this is fatal. Celotex, 477 U.S. at 323. Therefore, the Court should grant defendants' motion for summary judgment on plaintiff's First Amendment claim for failure to make a showing sufficient to establish the existence of an element essential on which plaintiff will bear the burden of proof at trial.
III. Plaintiff's Fourth Amendment Claim is Deficient as a Matter of Law
According to the complaint and as clarified at plaintiff's deposition, he brings his Fourth Amendment claim against the JCSO, the JCPW, Metolius and the MPD. Montoya Decl. ¶ 6. According to plaintiff, these defendants are liable for arresting him in violation of his Fourth Amendment rights. Id. Plaintiff also alleges that Deputy Larson “came onto private property and subjected the Plaintiff to an unreasonable search.” Am. Compl. ¶ 107. As detailed above, the JCSO, JCPW and the MPD are not separate legal entities subject to suit. Even if they were, plaintiff has not pled or advanced sufficient proof to show any allegedly deficient policy, practice or custom that was the cause or driving force for a constitutional violation. This alone is fatal to plaintiff's Fourth Amendment claim against these defendants.
Plaintiff's second claim also alleges Deputy Larson subjected him to an unlawful entry and search. Upon review of the map of the fence, properties and barn at issue, the alleged entry onto private property by Deputy Larson occurred on the north end of the Ryun property where the fence is located. As such, plaintiff's claim of unreasonable search fails for several reasons. First, despite plaintiff's “adverse possession” claims, Sixth Street remains a public throughfare and cannot be adversely possessed regardless of how long the fence was in place. ORS 275.027 and ORS 221.750. The property bordering the fence was owned by either the Ryun family or Metolius Land Properties. When Deputy Larson breached the fence, he was standing on a public roadway with private property either due south or due east of the fence, neither of which plaintiff had any lawful claim to. As such, any entry by Deputy Larson in breaching the fence was permitted as a matter of law, and plaintiff has not produced any proof to rebut these assertions or establish any of the essential elements to his Fourth Amendment claim against Deputy Larson. As such, the Court should grant defendants' motion to dismiss the Fourth Amendment claim.
IV. Plaintiff's Fourteenth Amendment Claim is Deficient as a Matter of Law
Plaintiff asserts that defendant Deputy Larson “resisted and suppressed all evidence to support plaintiff's right to possess land; evidence regarding the doctrine of adverse possession; and Oregon statutory law which permits conduct of the kind plaintiff was alleged to have committed on the day of arrest. In essence, plaintiff contends Deputy Larson “deprived [plaintiff] of his rightful liberty without due process of law, ” (Am. Compl. ¶ 120) by refusing to review the evidence. “
As a threshold matter, to establish a substantive due process claim a plaintiff must show a government deprivation of life, liberty, or property.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir.2006). After that, a plaintiff must show that the behavior of the government is the sort that “shocks the conscience, ” in a constitutional sense. Id. As before, plaintiff has not produced any evidence to support the elements he would need to prove at trial; nor does his complaint allege a substantive due process violation against Deputy Larson. There is no allegation that defendant Larson deprived plaintiff of protected liberty interest, and certainly no allegation that his behavior “shocked the conscience.” The Court should therefore dismiss the Fourteenth Amendment claim against this defendant.
Plaintiff also brings equal protection claims against defendants Larson, Adkins, Keever, JCSO, COM, JCPW, and Rochelle. To establish a violation of equal protection in a class-of-one case, plaintiff must establish that defendants: “(1) intentionally (2) treated [plaintiff] differently than other[s] similarly situated, (3) without a rational basis.” Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). To succeed on a § 1983 equal protection claim based on a suspect classification, a plaintiff must show that the defendant acted with an invidious discriminatory purpose. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997).
Here, plaintiff's claims against Deputy Larson, Deputy Keever, Officer Rochelle and Sheriff Adkins fail as he was arrested on a public street and pursuant to probable cause as opposed to any invidious discriminatory purpose. Also, Sheriff Adkins was never at the scene of plaintiff's arrest. Montoya Decl. ¶ 6. Further, plaintiff cannot show that he was treated any differently than any other similarly situated individual. He has presented no evidence to support any element of his equal protection claim. Finally, even if the Court were to find a factual question regarding plaintiff's arrest, these individual defendants are still entitled to qualified immunity as there is no case that has placed the “constitutional question beyond debate” as to their actions. White v. Pauly, 137 S.Ct. 548, 551 (2017).
Plaintiff's claims against the Sheriff's Office and the JCPW also fail as they are not separate legal entities subject to suit. Even if they were, plaintiff has failed to plead and cannot prove that any equal protection violation occurred as a result of any deficient policy, practice or custom that was the cause or driving force for the constitutional violation. Further, as Deputy Larson and Deputy Keever did not commit any constitutional violation, there can be no municipal liability. City of Los Angeles v. Heller, 475 U.S. 796 (1986). For these reasons, the Court should dismiss the Fourteenth Amendment claim against defendants Larson, Adkins, Keever, JCSO, COM, JCPW, and Rochelle as well.
V. Plaintiff's Failure to Intervene Claim is Deficient as a Matter of Law
Plaintiff also brings a “failure to intervene” claim against defendants Keever, Rochelle, Adkins, and JCSO, arguing that these defendants should have stepped in to prevent the violation of his Fourth Amendment rights. In general, “police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994), rev'd in part on other grounds by 518 U.S. 81, (1996). As discussed in more detail above, however, plaintiff has failed to provide evidence that his Fourth Amendment rights were violated at all, so his “failure to intervene” claim fails just like his substantive Fourth Amendment claim..
As detailed above, the individual officers would likely be protected by qualified immunity on this claim regardless because at the time of the official's conduct, the law was not sufficiently clear that every reasonable official would understand that what he or she was doing was unconstitutional. White v. Pauly, 137 S.Ct. 548, 551 (2017).
VI. Plaintiff's Malicious Prosecution Claim is Deficient as a Matter of Law
Plaintiff also asserts that he was subject to malicious prosecution. Under Oregon law, a claim for malicious prosecution requires the plaintiff to show the following:
(1) the institution or continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the prosecution.Waldner v. Dow, 128 Or.App. 197, 200 (1994).
Here, plaintiff has not presented evidence to support several of the requisite elements, and the Court should therefore grant defendants' motion. For example, plaintiff has failed to present evidence of malice, which Oregon defines as “any primary purpose other than to bring a person to justice.” Ledford v. Gutoski, 319 Or 397, 402 (1994). Plaintiff has not provided any evidence to suggest defendants had a purpose other than to enforce the law. Moreover, under state law, probable cause is a complete defense to malicious prosecution, Gigler v. Klamath Falls, 21 Or.App. 753, 759-63 (1975), and probable cause is a question of law when the facts are not in dispute. Lampos v. Bazar, Inc., 270 Or 256, 269 (1974). Additionally, in an action for malicious prosecution, the plaintiff must allege and prove affirmatively the non-existence of justification. Christ v. McDonald, 152 Or 494, 502 (1935). As described above, plaintiff's arrest was based on probable cause and he has failed to present evidence sufficient for a jury to find defendants liable on this claim. As such, the Court should grant defendants' motion for summary judgment on plaintiff's malicious prosecution claim.
VII. Plaintiff's Abuse of Process Claim is Deficient as a Matter of Law
Plaintiff also brings an “abuse of process” claim against defendants Davidson, Marrazzo, Baggett, Rodriguez, Baggett. Inc., JCPW, COM, Larson, Adkins, and JCSO. “Abuse of process” is the perversion of a process that is regular on its face to a purpose for which the process is not intended. Larsen v. Credit Bureau, Inc. of Georgia, 279 Or 405, 408 (1977). To bring a claim for abuse of process, a plaintiff must allege (and ultimately prove) some ulterior purpose, unrelated to the process, and a willful act in the use of the process that is not proper in the regular conduct of the proceeding. Larsen, 279 Or at 408.
The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. If there is no form of extortion, the action for abuse of process will not lie. Restatement (Second) Torts, § 682, comment b. Here, there is no pleading or evidence as to how the arrest was intended to compel performance or forbearance of some act for Deputy Larson's improper or selfish purpose.
Rather, plaintiff contends that Deputy Larson, Metolius, JCSO and JCPW, acted improperly by their assertion “the private driveway was in fact a county road.” Am. Comp. ¶ 144. As shown above, the location plaintiff claims as a “private driveway” was a Metolius street as of 1911. In the intervening 110 years, the borders of the Metolius have shifted such that Sixth Street became part of Jefferson County. Hanenkrat Decl. ¶ 6. However, at no time has either Metolius or Jefferson County vacated Sixth Street such that it could become a “private driveway.” Id. And, while plaintiff argues that “adverse possession” plays some part in his claims, public property cannot be adversely possessed. ORS 275.027 and ORS 221.750. Nor has he provided evidence to established he adversely possessed the property at issue. Thus, plaintiff's claim of somehow being compelled by his arrest to relinquish his claim to the private driveway fails for the simple reason that he had no legitimate claim of ownership over a public roadway. And even if there were, plaintiff has not produced any evidence of an ulterior purpose required for an abuse of process claim. The Court should therefore grant defendants' motion for summary judgment on the abuse of process claim.
VIII. Plaintiff's Civil Rights Violation Claim is Deficient as a Matter of Law
Plaintiff further alleges that Deputy Larson, Sheriff Adkins and JCSO discriminated against him by accepting “testimony of a trespasser, a Caucasian, who was in clear violation of state law over the word of the land occupier in lawful possession of the land.” Am. Compl. ¶ 153. As shown above, plaintiff was arrested in the middle of a public road, Sixth Street. And Deputy Larson's response to a 9-1-1 call from Baggett, who reported plaintiff's gun threats, was reasonable. As such, Deputy Larson breaching a gate placed on a public roadway is not based on discriminatory animus but supported by probable cause in a location where the Deputy was permitted to be. And, without retreading the ground of Celotex and 42 U.S.C. § 1983 described in more detail above, the Court should also grant the motion because plaintiff has not presented any evidence that would support the essential elements of a civil rights claim on this basis as well. Defendants' motion for summary judgment on this claim should be granted.
IX. Plaintiff's False Imprisonment Claim is Deficient as a Matter of Law
Plaintiff alleges that Deputy Larson, Deputy Keever, Sheriff Adkins, the JCSO, the MPD and Officer Rochelle, subjected him to “wrongful arrest.” Am. Compl. ¶ 156 - 157. False imprisonment, also known as false arrest, Hylton v. Phillips, 270 Or 766, 767 (1974), is the imposition of unlawful restraint on another's freedom of movement. Hiber v. Creditors Collection Service of Lincoln County, Inc., 154 Or.App. 408, 413 (1998). Proof of lawful detention (i.e., an arrest supported by probable cause) is a complete defense to a false imprisonment claim. Ross v. City of Eugene, 151 Or.App. 656, 663 (1997). Here, despite plaintiff's “adverse possession” allegations, Sixth Street remains a public throughfare and, as such, plaintiff held no ownership interest of it. Plaintiff was arrested based upon the eyewitness accounts of Baggett and Rodriguez that plaintiff threatened to either shoot or kill them. It is beyond argument that threats meeting the elements of menacing were reported to Deputy Larson and that the Deputy lawfully arrested plaintiff in a public roadway based upon probable cause. The Court should therefore grant the motion for summary judgment on this claim.
X. Plaintiff's Defamation Claim is Deficient as a Matter of Law
Plaintiff also brings a defamation claim against defendants Larson and JCSO. Under Oregon law, a claim for defamation has three elements: “(1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.” National Union Fire Ins. Co. v. Starplex Corp., 220 Or.App. 560, 584, rev. den., 345 Or. 317 (2008). A claim for defamation must be filed within one year of the date the defamatory statement is made. ORS 12.120(2). The statute of limitations begins to run from the date of the publication of the false and defamatory statement. Bock v. Collier, 175 Or. 175, 148 (1944). Here, plaintiff's last allegation regarding any action by Deputy Larson or JCSO occurred on April 9, 2018. Am. Comp. ¶ 75. Plaintiff filed his original Complaint on September 3, 2019. ECF 1. As such, plaintiff's defamation action is untimely as a matter of law.
And even if timely, this claim fails. In order to be actionable for defamation, a communication must be both false and defamatory. Harley-Davidson Motorsports, Inc. v. Markley, 279 Or 361, 364 (1977). Defamation occurs if a person's: “Reputation is tarnished ‘among a substantial and respectable minority' of the community or of the defamed's associates.” Farnsworth v. Hyde, 266 Or 236, 238, 512 P.2d 1003 (1973). Whether a statement is capable of having a defamatory meaning is a question of law for the court. Fender v. City of Oregon City, 811 F.Supp. 554, 558 (D. Or. 1993). And truth is a complete defense to a defamation action in Oregon. Bahr v. Ettinger, 88 Or.App. 419 (1987).
Here, as detailed above, in the foreclosure action filed by CIT Bank, filings in the action provided that plaintiff was unable to secure financing for the subject property and, failed to pay rent he had agreed to pay while waiting for the property sale to close. (Montoya Decl. ¶ 15). As such, plaintiff can hardly claim that Deputy Larson tarnished his reputation by discussing his claims of adverse possession and his pending lawsuit when plaintiff wrongly asserted adverse possession of a public road; essentially a claim of right to the public road in his then pending lawsuit. As each of the allegations of defamation are true, Deputy Larson cannot defame plaintiff as a matter of law. The Court should therefore grant defendants' motion on this claim as well.
XI. Plaintiff's “Defamation Libel and Slander Per Se” Claim is Deficient as a Matter of Law
Plaintiff further alleges that Deputy Larson “published a false statement by fabricating evidence in the form of an untruthful affidavit to support criminal prosecution of Plaintiff for crime of menacing.” Am. Compl. ¶ 169. As noted above, the statute of limitations for a defamation claim is one year and, plaintiff's action was filed too late as a matter of law. Were it timely, defendants would still be entitled to summary judgment on this claim. As with all defamation claims, truth is a complete defense. In his Amended Complaint, plaintiff asserts that he did not threaten to shoot or kill Baggett or Rodriguez, however, plaintiff has conceded that Baggett and Rodriguez told Deputy Larson that plaintiff made those threats. Plaintiff's contention that Deputy Larson “fabricat[ed] evidence” fails as Deputy Larson reported what he was told by an eyewitness, as conceded by plaintiff. Therefore, in light of this unrebutted defense of truth, and the untimeliness of this claim, the Court should grant defendants' motion for summary judgment on this claim as well.
XII. Plaintiff's Assault Claim is Deficient as a Matter of Law
Plaintiff also claims that he suffered “a reasonable apprehension that an imminent or offensive contact was certain in that officers had torn down a gate to come onto Plaintiff's property without consent and absent of warrant.” Am. Compl. ¶ 173. Plaintiff's assault claim is meritless, and the Court should grant defendants' motion on this claim as well.
“Assault” is an intentional attempt to do violence to the person of another, coupled with the present ability to carry intention into effect. Olsen v. Deschutes County, 204 Or.App. 7, 24 (2006). ORS 133.235(4) and ORS 161.235 allow the use of physical force by an officer making an arrest and afford a privilege as a matter of law for a claim of battery against officers using force necessary in carrying out their duties. Gigler v. City of Klamath Falls, 21 Or.App. 753, 762 (1975). In an arrest situation, a police officer is presumed to act in good faith in determining the amount of force to be used. Rich v. Cooper, 234 Or 300, 311 (1963). Here, Deputies responded to threats plaintiff allegedly made to shoot or kill Baggett and Rodriguez. Deputy Larson and Deputy Keever each met with Baggett and Rodriguez who told the Deputies that plaintiff threatened to get a gun and either shoot or kill them. Plaintiff concedes that Baggett and Rodriguez told the Deputies that plaintiff threatened to get a gun and shoot or kill them. As such, there is no factual dispute as to whether probable cause existed. As Deputy Larson had probable cause, he was entitled to use reasonable force to arrest plaintiff and there is no evidence that he went beyond this license. As such, plaintiff's claim of assault fails as a matter of law and the Court should grant defendants' motion for judgment as a matter of law on this claim.
XIII. Plaintiff's Battery Claim is Deficient as a Matter of Law
Plaintiff further claims that Deputy Larson “committed an offensive harmful contact when Larson performed a pat-down frisk and committed battery by placing Plaintiff in handcuffs.” Am. Compl. ¶ 179. “Battery” is unlawful touching or striking of another done with the intention of bringing about a harmful or offensive contact not consented to or privileged or justified. Cook, 207 at 48- 49. As described above, Oregon law permits a law enforcement offer to use physical force when arresting an individual and affords a privilege as a matter of law for a claim of battery against Deputies for using force necessary in carrying out their duties. Here, plaintiff does not allege that Deputy Larson used unreasonable force, rather, he merely claims that the Deputy should be held liable to him for placing plaintiff in handcuffs. As such, Deputy Larson's actions were privileged as a matter of law, not unreasonable, and plaintiff has failed to present any evidence the force was otherwise excessive. The Court should therefore grant defendants' motion for summary judgment on this claim.
XIV. Plaintiff's Invasion of Privacy Claim is Deficient as a Matter of Law
Plaintiff also asserts that Deputy Larson, Deputy Keever, MPD, Officer Rochelle, JCPW and COM unreasonably intruded onto his property. Am. Comp. ¶ 183. But, as described above, the gate and fence were on a public road. As such, plaintiff cannot state a claim, nor has he presented any evidence to suggest he had a lawful interest over the area. In addition, the same one-year statute of limitations that applies to defamation cases, applies to this claim as well. Magenis v. Fisher Broadcasting, Inc. 103 Or.App. 555 (1990). The Court should therefore grant defendants' motion for summary judgment on this claim.
XV. Plaintiff's Private Nuisance Claim is Deficient as a Matter of Law
As plaintiff correctly notes, a “private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 360 (1999). The person whose land is invaded has the right of action. See Smejkal v. Empire Lite-Rock, Inc., 274 Or. 571, 574 (1976). Here plaintiff complains that Deputy Larson removed the gate, which led to “the loss of use of an egress to the property.” Am. Comp. ¶ 189. In other words, the basis for plaintiff's non-trespassory interference is a trespassory interference. Plaintiff therefore fails to state a claim, and even if plaintiff managed to assert a non-trespassory harm, his action still fails because he cannot show he held any ownership interest in the property.
In addition to Deputy Larson, plaintiff asserts this claim against COM, JCPW and JCSO. As detailed above, plaintiff cannot bring an action against JCSO and JCPW as they are not separate legal entities subject to suit and he fails to allege any actions on the part of these defendants that give rise to this claim. The Court should therefore grant defendants' motion for summary judgment on this claim.
XVI. Plaintiff's False Light Claim is Deficient as a Matter of Law
Plaintiff also asserts that Deputy Larson “filed a false affidavit to support a charge of menacing by asserting the Plaintiff had threated to kill Baggett and Rodriguez.” Am. Compl. ¶ 193. As noted above, the statute of limitations for this type of claim is one year and, plaintiff's action was filed too late as a matter of law. And even if timely, plaintiff's claim still fails. It is uncontroverted that Baggett and Rodriguez told Deputy Larson that plaintiff threatened to shoot or kill them. As such, there is no material issue of fact in dispute over whether Deputy Larson had probable cause, based on the eyewitness testimony, to arrest plaintiff. Further, any alleged falsity in Deputy Larson's affidavit was not his but the statements made by eyewitnesses. The Court should therefore grant defendants' motion for judgment as a matter of law on this claim.
XVII. Plaintiff's Intentional/Negligent Infliction of Emotional Distress Claim is Deficient as a Matter of Law
1. Plaintiff's Intentional Infliction of Emotional Distress Claim is Deficient as a Matter of Law
Plaintiff also brings a claim for intentional or negligent infliction of severe emotional distress against Deputy Larson and JCSO. To state a claim for IIED a plaintiff must prove three elements:
i. Defendant intended to inflict severe emotional distress on plaintiff; ii. Defendant's acts were the cause of plaintiff's severe emotional distress; iii. Defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.Babick v. Oregon Arena Corp., 333 Or 401, 411 (2002). The challenged conduct is an “extraordinary transgression” if it is “so offensive as to be outrageous.” Hall v. May Dept. Stores Co., 292 Or 131, 137 (1981), and “outrageous in the extreme.” Patton v. J.C. Penney Co. Inc., 301 Or 117, 124 (1986). In considering whether a defendant's acts were an “extraordinary transgression” the conduct must be deliberate and the means of inflicting the harm must be extraordinary. Shay v. Paulson, 131 Or.App. 270, 273 (1994). On the element of “intent, ” lack of foresight, indifference to possible distress and even gross negligence are not enough to support this theory of recovery. Hall at 135.
In considering whether the defendants' acts were an extraordinary transgression, the Court examines the purpose of the conduct and the means used to achieve the result. Not only must the conduct be deliberate, the means of inflicting the harm must be extraordinary. Shay, 131 Or.App. at 273. Determining whether the conduct was an extraordinary transgression of the bounds of socially tolerable conduct is initially a question of law. Delaney, 180 Or.App. at 129. Here, plaintiff presents no triable issue of fact to support an IIED claim as Deputy Larson's actions were nothing more than a lawful arrest based upon probable cause. The Court should therefore grant defendants' motion for summary judgment on this claim.
2. Plaintiff's Negligent Infliction of Emotional Distress Claim is Deficient as a Matter of Law
Plaintiff further asserts that Sheriff Adkins, Deputy Keever and JCSO negligently caused him emotional distress because they should have provided plaintiff “protection from discriminatory practices and the enforcement of substantive rights afforded under the Constitution as well as the individual's right to privacy….” Am. Compl. ¶ 204. In Nearing v. Weaver, 295 Or 702 (1983), the Oregon Supreme Court cited the general rule that there is no cause of action for negligent infliction of emotional injury alone unsupported by a violation of some more specific duty to the plaintiff. Id. at 708. In Nearing, the court examined the mandatory arrest provision of the Oregon Abuse Prevention Act which provides that a peace officer “shall” arrest and take into custody a person when the officer has probable cause to believe that a restraining order has been served and the person to be arrested has violated the terms of the order. The court noted that the duty the defendants were alleged to have neglected was therefore not an ordinary common law duty of due care to avoid predictable harm to another, but a “specific duty imposed by statute for the benefit of individuals previously identified by a judicial order.” Id. at 706. The court made it clear there is no liability for general law enforcement activity. Id. at 712. Here, plaintiff points to no specific duty imposed by state statute for the benefit of the plaintiff. The only action taken against plaintiff was his arrest based upon probable cause and the carrying out of law enforcement activity. Because plaintiff cannot point to any specific duty defendants owed him, and therefore fails to provide evidence to support an element of his claim, this claim fails. The Court should therefore grant defendants' motion for summary judgment.
XVIII. Plaintiff's Trespass Claim is Deficient as a Matter of Law
Finally, plaintiff brings a trespass claim against defendants Baggett, Rodriguez, Baggett Inc., Larson, Keever, JCSO, MPD, Rochelle, JCPW, and COM. He alleges that he had a “possessory interest in that Plaintiff was under contract, a contract which was in dispute at time [sic] in an Oregon Circuit Court while Plaintiff was in possession of subject property.” Am. Compl. ¶ 206. Plaintiff claims that these defendants “intentionally entered upon Plaintiff's land without consent or authority as described herein.” Id. Trespass to real property is an intentional entry upon the land of another by one not privileged to enter. Amphitheaters, Inc. v. Portland Meadows, 184 Or 336, 343 (1948). Here, plaintiff's trespass claim fails as there was no entry to any private property that belonged to plaintiff under any theory. When Deputy Larson breached the gate and took plaintiff into custody, he was standing in a public roadway that was blocked by the gate. As plaintiff is unable to demonstrate that he had any property interest whatsoever in Sixth Street, the Ryun Family property or the Metolius Land Properties, his trespass claim fails for lack of proof of a required element. See Celotex, 477 U.S. at 323. The Court should therefore grant defendant's motion for summary judgment on the trespass claim as well.
CONCLUSION
For the foregoing reasons, defendants' motions for summary judgment (ECF 100, 106) should be granted, the request for oral argument is denied as unnecessary, and this case should be dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.