Siwiec v. Thompson

Full title: DAVID SIWIEC, Plaintiff, v. DAVID THOMPSON; DAVID CARL ANDERSON; ROB…

Court: United States District Court, D. Oregon

Date published: Nov 3, 2004

CV-02-454-ST, CV 02-460-ST (D. Or. Nov. 3, 2004)

Opinion

CV-02-454-ST, CV 02-460-ST.

November 3, 2004

OPINION AND ORDER

JANICE STEWART, Magistrate JudgePage 2

INTRODUCTION

Plaintiffs, David Siwiec ("Siwiec"), and his mother, Trish George ("George"), filed two separate actions in this court against Washington County, and various individuals working as or with Washington County as police officers. Both actions involve various claims arising out of a series of events which transpired following a car wreck during the early morning hours of April 9, 2000.

Siwiec contends that he was unlawfully arrested and falsely imprisoned; subjected to excessive force; subjected to unlawful searches and seizures; subjected to an illegal interrogation; denied medical treatment; and maliciously prosecuted. He brings six claims for relief under 42 USC § 1983 ¹ and three supplemental state law claims.²

1 42 USC § 1983 provides in relevant part that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

2 The most recent pleading in Siwiec's case, Civil No. 02-454, is the First Amended Complaint for Damages, filed July 1, 2002. References to that document will be to the "Siwiec Amended Complaint."

George contends that she was denied the right to petition the government for redress; denied due process; subjected to retaliation and gender discrimination; denied her liberty interest in the companionship, care, custody, and management of her son; and intentionally subjected to emotional distress. She brings four claims for relief under 42 USC § 1983 and one supplemental state law claim.³

3 The most recent pleading in George's case, Civil No. 02-460, is the First Amended Complaint for Damages, also filed July 1, 2002. References to that document will be to the "George Amended Complaint."

This court has original jurisdiction over the federal statutory claims under 28 USC § 1331 and supplemental jurisdiction over the state law claims under 28 USC § 1367(a). All parties in both cases have consented to allow a Magistrate Judge to enter final orders and judgment in accordance with FRCP 73 and 28 USC § 636(c). These matters are now before the court on defendants' motions for summary judgment. For the following reasons, defendants' motion against Siwiec's claims is granted in part and denied in part and defendants' motion against George's claims is granted against all claims except the Fifth Claim against defendant David Carl Anderson.

LEGAL STANDARDS

FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 323 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. The court does "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F3d 1047, 1054 (9^th Cir 1999). A "` scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9^th Cir), cert denied, 493 US 809 (1989) (emphasis in original) (citation omitted).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F2d 626, 631-32 (9^th Cir 1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id at 631 (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually " implausible, that party must come forward with more persuasive evidence than would otherwise be [required]. . . ." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F2d 1466, 1468 (9^th Cir 1987), cert denied, 484 US 1006 (1988) (emphasis in original) (citation omitted). The Ninth Circuit has found, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.

FACTS

Because all material facts must be viewed in the light most favorable to the non-moving party, this court will view the evidence in the light most favorable to plaintiffs.⁴ A review of the affidavits and other materials submitted by the parties reveals the following facts.⁵ I. Accident and Arrival of Washington County Sheriff's Officers

Close to midnight on the evening of April 8, 2000, Siwiec was driving a small pickup truck at or near the intersection of Murray and Jenkins Roads in Washington County, Oregon. Siwiec's friend, Eli Kraft ("Kraft"), was traveling with him. Siwiec's vehicle was broadsided by another vehicle, flipped over in the intersection, hit two other cars, and then came to rest on its roof. Both Siwiec and Kraft were rendered unconscious as a result of the impact.

Several Washington County Sheriff's Office deputies responded to the accident scene, including defendants David Thompson ("Thompson") and then-reserve deputy Toby Harris ("Harris") who were traveling together in the same vehicle, David Anderson ("Anderson"), Robert Obenauf ("Obenauf"), and James Cuthbertson ("Cuthbertson"). In addition, deputies Tim Miller ("Miller"), Shawn Dunn ("Dunn"), and Michael Womer ("Womer"), as well as Anderson's brother, Steve Anderson, who are not named as defendants in these cases, were present. Steve Anderson was riding in the same vehicle with Anderson to observe the operations on Anderson's shift, and Anderson was the acting shift commander. Anderson Aff, ¶¶ 2-3.⁶

6 All references to "Anderson" are to defendant David Anderson; all references to his brother are to "Steve Anderson."

When Anderson arrived at the scene, he learned that a possibly intoxicated driver had attempted to flee the scene and had been apprehended by an off-duty Portland police officer who had witnessed the accident. Id, ¶ 4. Anderson assigned Miller to take the lead in that part of the investigation, and assigned Dunn to photograph the scene and then accompany Miller to the hospital to obtain a blood sample from that driver. He assigned Womer to take measurements, diagram the scene, and write an accident report.

When Kraft regained consciousness, Siwiec was laying on the pavement with blood all around him. Kraft Aff, ¶ 4. Siwiec had a chunk of skin hanging from his right temple, and blood gushing from his head. Id, ¶ 7. A passerby took off his tee shirt and wrapped it around Siwiec's head to curb the bleeding. Id, ¶ 5. He periodically would lift the tee shirt away from Siwiec's head and blood would gush from the wound. Id, ¶ 6. Miller was standing next to Siwiec while this was happening. Id.

Two female paramedics attempted to get Kraft to go to the hospital, but he refused. Id, ¶ 8. Some time thereafter, a paramedic or firefighter approached Anderson and asked for help in convincing Kraft to go to the hospital. Anderson Aff, ¶ 5. Anderson assigned Thompson to deal with Siwiec.

II. Field Sobriety Testing and Arrest of Siwiec

Siwiec could not stand up without assistance, had to lean on his truck with his head down, repeatedly stated that his head hurt and that he was dizzy, and had to sit on the pavement because he was so dizzy. Kraft Aff, ¶¶ 11-13. Kraft saw a female paramedic come up to Siwiec sitting on the pavement; after about 30 seconds, the other female paramedic yelled for her to leave Siwiec and come help her, which she did. Id, ¶¶ 14-15. Both of those paramedics left in an ambulance with an unconscious handcuffed Hispanic male. Id, ¶ 15. Kraft recalls that Miller asked him questions, asked Siwiec for his license, told Siwiec that he had been unconscious, but said nothing else to Siwiec. Id, ¶¶ 16-17. Kraft did not hear Siwiec say anything to Miller. Id, ¶ 17.

Thompson asked Kraft to perform field sobriety tests, and Kraft complied. Id, ¶ 19. Thompson told Kraft that he and Siwiec had been unconscious. He twice told Kraft that he needed to go to the hospital, but Kraft responded that he did not want to go because he did not want to incur hospital bills. Id, ¶¶ 20-23. He also told Thompson that Siwiec had been driving the truck. Kraft did not hear anyone offer Siwiec medical care and did not hear Siwiec tell anyone that he did not want to go to the hospital. Id, ¶ 9.

Thompson approached Siwiec and observed that he had bloodshot eyes and a moderate odor of what appeared to be an alcoholic beverage on his breath. Thompson Aff, ¶ 7. Siwiec told Thompson he had consumed two 16-ounce beers over the preceding two or three hours and was speaking slowly and deliberately, slightly slurring his words. Id, ¶ 8.

Thompson asked Siwiec to perform standard field sobriety tests, including a walk and turn test and a horizontal gaze nystagmus ("HGN") test. Id, ¶ 9. While taking the HGN test, Siwiec became dizzy. Id. Thompson then asked Siwiec to walk heel-to-toe for nine steps, turn and return, counting each step and keeping his eyes on his feet. Id. Siwiec could not complete that test without a loss of balance. He nearly fell on the ground twice, was still bleeding from the head, and could not stand up straight. Kraft Aff, ¶¶ 28-29. Thompson waited while Siwiec leaned on the truck and put his head down, then resumed testing. Id, ¶ 28. Thompson again administered the HGN test, noting a lack of smooth pursuit, distinct nystagmus at 45 degrees, and nystagmus at maximum deviation. Based on his previous observations of Siwiec and on those test results, Thompson decided to arrest Siwiec for Driving Under the Influence of Intoxicants ("DUII"). Thompson Aff, ¶ 9.

When a firefighter went up to Siwiec and placed a triage tag on his upper left arm, Thompson yelled at him to "go away, you are interfering with a DUII investigation." Kraft Aff, ¶¶ 32-34. Neither Thompson nor anyone else offered Siwiec medical attention at the accident scene.⁷ Siwiec Supp Aff, ¶ 3.

7 Although in his deposition and initial affidavit, Siwiec stated that he had no recollection of being offered or refusing medical attention, his supplement affidavit clarifies that he "was never offered medical treatment" and that "[a]t no time . . . did I deny an offer of medical attention." Siwiec Supp Aff, ¶¶ 3-5. This testimony directly contradicts the testimony of Lisa Knapp, a paramedic who was at the scene, Knapp Aff, ¶¶ 4-5, as well Thompson's testimony that Siwiec repeatedly refused medical attention, Thompson Aff, ¶ 6. However, this court must construe the record in Siwiec's favor.

Anderson told Kraft they were taking him to the hospital because he had been unconscious. Kraft Aff, ¶ 37. Anderson and his brother Steve then transported Kraft to St. Vincent's Hospital and told him they were going to drop him off and then take a break to eat. Id, ¶ 41.

Thompson placed handcuffs on Siwiec and conducted a "pat down" search, during which he discovered a roll of currency totaling $680 in $20 bills in Siwiec's front pants pocket and a much smaller sum in various denominations in Siwiec's wallet in his back pants pocket. Thompson Aff, ¶¶ 10, 14. Thompson and Harris transported Siwiec to the East Precinct police station in Beaverton. III. Contact With and Removal of George From East Precinct by Anderson

Normally, persons cited with DUII are cited and then released to a third party. Thompson asked Siwiec for the name and telephone number of someone who could come and pick him up. Siwiec gave George's name and telephone number to Thompson.

After arriving at the East Precinct, Thompson called George and told her that her son, Siwiec, was in an accident caused by a drunk driver, was injured, and needed medical treatment. George Aff, ¶ 4. Thompson also told George that he had sent Siwiec into the bathroom to wash up because he did not want Siwiec "bleeding out all over the station." Id. He also told her Siwiec would be cited and released after taking a breathalyzer test. Thompson Aff, ¶ 16.

At some point after arriving at East Precinct, Thompson received a radio call from Obenauf, who told him that he had found and seized a substantial quantity of marijuana and a handgun, both of which apparently came from Siwiec's truck. Id, ¶ 12.

After receiving Thompson's telephone call, George began driving toward the East Precinct, and came across the accident scene enroute. George stopped at the accident scene, where Obenauf "grabbed [her] by the arms, shook [her] and ordered [her] to proceed to East Precinct." George Aff, ¶ 6.

Upon arriving at the East Precinct at approximately 1:30 a.m. (Siwiec Amended Complaint, ¶ 25), George asked to see her son and Thompson allowed her into the briefing room where he was being questioned. Thompson Aff, ¶ 18. George observed that Siwiec was bleeding from the head, nose and mouth. George Aff, ¶ 7. She also observed that he had severe lacerations and that his pupils were of unequal size. Id. She spoke briefly with Siwiec, telling him he needed to go to the hospital.⁸ She also attempted to take Siwiec for emergency medical treatment, but Thompson stopped her, telling her that Siwiec was "not going anywhere yet."⁹ Siwiec Amended Complaint, ¶ 26.

8 Thompson states that, consistent with his refusals of medical treatment at the scene and at the station, Siwiec also refused to seek medical care when George suggested he do so. Thompson Aff, ¶ 19. George does not state whether she advised Siwiec to go to the hospital when she saw him at the East Precinct, and if she did, what was his response to that suggestion. Instead, she contends that "Anderson refused to order medical attention for [Siwiec] and told her `women are babies.'" George Aff, ¶ 9.

9 Thompson implies that Obenauf arrived at the East Precinct prior to George, by contending that he made the decision to charge Siwiec with the drug and firearm offenses prior to George arriving at the East Precinct, so advising George when she arrived at East Precinct. Thompson Aff, ¶¶ 12-18. Siwiec contends that Thompson simply told George that Siwiec was "not going anywhere yet" in response to George's request to immediately take Siwiec for emergency medical treatment, and that Obenauf and Cuthbertson did not arrive at the East Precinct until George had already been ordered out by Anderson. Siwiec Amended Complaint, ¶¶ 26, 31. For purposes of these motions, this court accepts the version offered in Siwiec's Amended Complaint, despite the lack of supporting affidavit testimony.

At approximately 1:37 a.m. (Siwiec Amended Complaint, ¶ 27), Anderson arrived at the East Precinct, and discovered George in the briefing room, which he considered to be a non-public area. Anderson Aff, ¶ 9. Anderson found George distraught and assertive, told her she was overreacting, "refused to order medical attention for [her] son and told [her] `women are babies'" and ordered her out of the East Precinct.¹⁰ George Aff, ¶ 9.

10 In her pleadings, George alleges that Anderson also called her an "evil woman," stated that she had "evil woman looks," "was nuts," had "imagined" overhearing her son screaming and being coerced, was overreacting like "women do," and made additional "woman" comments. George Amended Complaint, ¶¶ 26, 36, 39. However, George does not discuss these alleged events in her affidavit.

IV. Arrival of Obenauf and Cuthbertson at East Precinct — Additional Criminal Charges

At approximately 2:00 a.m. (Siwiec Amended Complaint, ¶ 31), Obenauf and Cuthbertson arrived at the East Precinct with the items found at the accident scene, including a handgun and a plastic container holding marijuana. Thompson weighed the marijuana and determined there were 34 grams of marijuana in the plastic container. Thompson Aff, ¶ 13. Based on the quantity of marijuana, which Thompson believed was significantly greater than would be expected for personal use, as well as the large sum of money located in Siwiec's pocket, Thompson concluded that it was likely that Siwiec was dealing in marijuana. Id, ¶ 15. Thompson also considered the handgun as corroborating evidence based on his observation that individuals who deal in drugs often carry weapons for protection in light of the nature of their business and clientele. Id. Thompson decided to charge Siwiec with drug and handgun crimes.

V. Failed Attempt to Jail Siwiec and Abandonment in the Hospital Parking Lot

At approximately 2:31 a.m., Thompson and Harris left the East Precinct with Siwiec in their custody, arriving at the Washington County Jail in Hillsboro at approximately 2:40 a.m. Siwiec Amended Complaint, ¶¶ 32-33. Upon arrival at the jail, Siwiec was assessed by a nurse. Thompson Aff, ¶ 21. Based on that assessment, the sergeant on duty at Intake refused to receive Siwiec into the jail because of his injuries. Id.

Thompson and Harris drove Siwiec to the parking lot at the Tuality Hospital in Hillsboro, a few blocks from the jail. Thompson contacted Anderson, who told him to abandon Siwiec in the parking lot so that the "County wouldn't have to buy the bill" for Siwiec's medical care. Siwiec Aff, ¶ 19; Siwiec Amended Complaint, ¶ 35. Thompson also contacted a Deputy District Attorney, stating that he knew Siwiec was physically "fine" and a "good kid" whose family "knew everyone in the Sheriff's Office." Based on that conversation, the Deputy District Attorney authorized Thompson to cite Siwiec for the DUII and release him for the felony charges. Thompson Aff, ¶ 22. Thompson left Siwiec in the parking lot of the hospital.¹¹ Siwiec Aff, ¶ 19.

11 Again, this version of events differs significantly from the version offered by Thompson, who states that Siwiec continued to refuse to seek medical treatment, and that Thompson left Siwiec by the emergency room door. Thompson Aff, ¶ 23.

VI. Siwiec Calls Friends and is Transported Back Home

After being dropped off in the hospital parking lot, Siwiec walked approximately a mile to a pay phone at a convenience store. Siwiec Depo, pp. 86-87. He called a friend to come and give him a ride home. Siwiec's friends state that when they picked Siwiec up, he had serious and obvious injuries. Pierce Aff, ¶ 15. Siwiec could not walk without stumbling, could not stand erect, and appeared to be in shock and shaking. Id, ¶¶ 5-6. Siwiec looked bloody and mangled with his hair matted down from blood and the skin on his head was split open in several areas and actively bleeding. Id, ¶ 8. His knuckles and hands were split open in several areas, covered in blood, and actively bleeding. Id. His hands were badly swollen and the fingers of his left hand appeared to be broken. Id. The rims of his nostrils and lips were caked with dried blood. Id, ¶ 9. He was incoherent, confused, complained of a bad headache and dizziness, complained of pain, and could not sit or lie down with comfort. Id, ¶¶ 12-14, 16-18. Once home, Siwiec refused his mother's advice to seek medical attention right away and instead took a nap. Siwiec Depo, pp. 87-88. VII. Post-Accident Medical Care

On April 9, 2000, between 8 and 16 hours after the accident,¹² Siwiec was examined by Dr. Rebekah Trochmann at the Tanasbourne Medical Plaza Urgent Care Clinic. Siwiec reported being "pretty sure he has [a] broken finger, [but that] otherwise [he] just feels bruised, cut up a little." Dickerson Supp Aff, Ex 7, p. 1. He had "multiple lac[eration]s [and] abraisions" to his scalp, all less than 1 centimeter long, and did not complain of head or neck pain. Id.

12 Siwiec testified that he went to the Urgent Care Clinic shortly after it opened at 8:00 a.m. Siwiec Depo, pp. 87-88. However, the chart notes from his visit indicate that he was not examined until 3:15 p.m. (15:15) that afternoon. Dickerson Supp Aff, Exhibit 7, p. 1.

Dr. Trochmann diagnosed: (1) a finger fracture; (2) multiple abrasions and lacerations; (3) head contusion (bruise) and closed head injury or concussion;¹³ and (4) microscopic hematuria (blood in urine), indicating a possibly bruised kidney. Id, pp. 1-2. She prescribed a finger splint, wound care, CHI (closed head injury) precautions, and continued watch for hematuria due to a possible renal contusion (kidney bruise). Id. Dr. Trachmann instructed Siwiec to make a follow up appointment with her in three days. However, no evidence indicates that Siwiec was examined again until June 23, 2000. Id, p. 4. Dr. Trachmann's chart notes from that day state:

13 A concussion is not listed as one of the diagnoses in the chart note of April 9, 2000. Dickerson Supp Aff, Ex 7, p. 1. However, Dr. Trachmann completed a form for Siwiec's insurance company on April 12, 2000, which listed a concussion as a diagnosis and also referenced a concussion in chart notes dated June 23, 2000. Id, Ex 7, pp. 3-4.

Patient is here, accompanied by his mother, to discuss his accident-related injuries. He has residual slight malrotation of the left fifth finger but strength-wise it is healing well. I could not say at this time whether this will be a permanent malformation or whether it will remodel with time.

He has some residual scars on dorsal aspect of his hands and scalp from the shattered glass impact. There has not been any mental compromise since he recovered from the concussion.

Dickerson Supp Aff, Ex 4, p. 4.

Dr. Trachmann also opined that Siwiec had sustained an "acute head trauma" in the accident, and that she did not believe that "any of this [referring to the the on-scene sobriety testing of Siwiec] was reliable in the setting of an acute head trauma." Id. Instead, according to Dr. Trochmann, Siwiec "should have been transported from the scene immediately for a medical evaluation, given the severity of injuries and destruction to the vehicle that he was in." Id.

Other than the June 23, 2000 follow-up appointment with Dr. Trochmann, the record contains no further evidence of post-accident medical care. However, Siwiec opines that "[his] injuries have lingered for several years" and that he "has been subjected to numerous medical procedures, permanent scarring and physical therapy sessions." Siwiec Aff, ¶ 23.¹⁴ VIII. Complaints to the Sheriff and the Resulting Internal Affairs Investigation

14 Siwiec also testified that "[a]ccording to [his] doctor [these procedures, scarring, and physical therapy sessions] could have been avoided if [he] had received immediate medical attention." Id. However, Siwiec's testimony as to his doctor's opinion is hearsay and not admissible evidence.

In the aftermath of the above events, George filed complaints against Anderson, Obenauf, and Thompson with the Washington County Sheriff's Office.¹⁵ Then-Sheriff Jim Spinden assigned Stephen Wilhelm ("Wilhelm") to lead an internal affairs investigation and determine whether any discipline was justified. Wilhelm Aff, ¶ 2. Wilhelm and his investigation team reviewed: (1) George's complaints and the administrative review conducted in immediate response to those complaints; (2) photographs taken at the accident scene and by George; (3) accident, incident, and supplemental reports; (4) tape-recorded interviews of the tow-truck driver who removed Siwiec's vehicle, two of the paramedics who evaluated Siwiec at the scene, an eyewitness to the accident, and Kraft (the passenger in Siwiec's vehicle); and (5) personal interviews of Anderson, Cuthbertson, Thompson, Obenauf, and Steven Anderson. Id, ¶ 11.

15 George first made verbal complaints to the Washington County Sheriff, who opened a "Supervisor's Investigation." George Amended Complaint, ¶ 45. In June 2000, a representative from the Washington County Sheriff's Office apparently contacted George in order to take a written complaint, and shortly thereafter, opened an Internal Affairs Investigation. Id, ¶ 46. According to George, the Washington County Sheriff's Office continued throughout this time frame to "ignore and refuse her criminal complaint." Id. In addition, Wilhelm told George he was "refusing to initiate a criminal action." George Aff, ¶ 14. As discussed in more detail below, it is the district attorney who initiates criminal actions, not Sheriff's office employees.

After his investigation, Wilhelm concluded that there was no basis to sustain any of the complaints made by George and found no other basis for discipline. He recommended a finding of "unfounded" or "not sustained" with respect to all of the complaints brought by George. Id, ¶ 14. Sheriff Spinden concurred in those recommendations and the file was closed. Id. IX. Dismissal of the Charges And Setting Aside of Most of Arrest Record

Some time after the accident and his arrest, Siwiec was charged with DUII and Unlawful Possession of a Schedule II Controlled Substance — Marijuana. Dickerson Supp Aff, Ex 2, p. 2. Approximately a year later, on June 5, 2001, those two charges were dismissed "in the interest of justice." Id, Ex 1.

On April 5, 2002, Siwiec filed his case against Anderson, Cuthbertson, Harris, Obenauf, Thompson, and Washington County. On April 8, 2002, George filed her case against Anderson, Obenauf, Thompson, Washington County, and Wilhelm.¹⁶

16 In her original complaint, George also named Anderson's brother, Steve Anderson, as a defendant. However, he was dropped as a defendant in the First Amended Complaint filed on July 1, 2002.

Seven months later, on November 9, 2002, Judge Gayle A. Nachtigal ordered that the record of Siwiec's arrest on the three charges of Unlawful Possession of a Firearm, Delivery of a Controlled Substance — Marijuana, and Possession of a Controlled Substance — Marijuana, be set aside pursuant to ORS 137.225. Dickerson Supp Aff, Ex 2. Judge Nachtigal's order did not set aside the record of the arrest for DUII. Id. ¹⁷

17 The statutory provision permitting the court to set aside certain convictions or records of arrests does not apply to convictions or arrests for state or municipal traffic offenses. ORS 137.225(6)(a).

DISCUSSION

I. Motions Against Siwiec's Claims A. Claims Against Harris

One preliminary issue is the status of Harris at time of the event. In April 2000, Harris was a "reserve" officer who was not employed by the Washington County Sheriff. Instead he was commissioned by the Sheriff, volunteered his time, and operated with limited authority under the direction of a sworn deputy sheriff. Nevertheless, as defendants conceded at oral argument, he operated as a state actor at all relevant times and therefore faces the same liability under § 1983 as the other officers: "Under the `joint action' test, a private party is acting under color of state . . . law if `he is a willful participant in joint action with the [government] or its agents.'" Schowengerdt v. General Dynamics Corp., 823 F2d 1328, 1338-39 n 17 (9^th Cir 1987), cert denied, 503 US 951 (1992), quoting Dennis v. Sparks, 449 US 24, 27 (1980).

B. Qualified Immunity Defense to § 1983 Claims

In response to the First through Fifth Claims brought under § 1983, the individual defendants raise a qualified immunity defense.¹⁸ The "Supreme Court has clearly, and repeatedly, admonished that official immunity is immunity from suit rather than merely immunity from liability." Butler v. San Diego District Attorney's Office, 370 F3d 956, 964 (9^th Cir 2004) (citations omitted). Thus, a qualified immunity defense may be raised in a motion to dismiss and, if successful, will result in dismissal prior to the commencement of discovery. Id at 963. If, however, a plaintiff's claims survive a motion to dismiss, then the plaintiff is entitled to enough discovery to permit the court to rule on a subsequent motion for summary judgment. Id. In this case, defendants opted not to file motions to dismiss, and instead filed an Answer to the Amended Complaint on August 15, 2002. Discovery proceeded and closed on May 28, 2004, after which the present motion was filed. Thus, in these cases, Siwiec and George may not rely simply on the allegations of the pleadings to respond to defendants' summary judgment motion.¹⁹ Id.

18 Defendants only allege qualified immunity as a defense as to the First through Fifth Claims for Relief (Defendants' Answer to First Amended Complaint, ¶ 10), although the Ninth Claim also alleges a claim for a constitutional violation under § 1983.

19 Due to the paucity of the affidavits on some points, this court is forced to rely on the pleadings to fill in some missing information. This court has construed every inference from the factual submissions and allegations in the pleadings in plaintiffs' favor, except where those allegations are challenged and no evidence refutes those challenges.

The doctrine of qualified immunity insulates government agents from liability for actions taken in good faith while exercising discretionary authority in their official capacity. Deorle v. Rutherford, 272 F3d 1272, 1285 (9^th Cir 2001), cert denied, 536 US 958 (2002). In a suit against police officers under § 1983, the court's initial inquiry must be: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 US 194, 201 (2001); Boyd v. Benton County, 374 F3d 773, 778 (9^th Cir 2004) (citing Saucier) If such a deprivation is shown, the court must then determine whether the right violated was so clearly established that the officials are not entitled to qualified immunity. Id.

A right is "clearly established" when "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 US 635, 640 (1987). The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 US at 202, citing Wilson v. Layne, 526 US 603, 615 (1999). The issues are evaluated for objective reasonableness based upon the information officers had when the conduct occurred, not upon the subjective intentions of the officers. Id, 533 US at 207. "Officials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 US 730, 731 (2002), citing United States v. Lanier, 520 US 259, 271 (1997).

1. Denial of Medical Treatment (First Claim)

The First Claim alleges that defendants Anderson, Thompson and Harris unlawfully and deliberately denied Siwiec necessary medical treatment in violation of his rights guaranteed by the Fourteenth Amendment.

a. Violation of a Constitutional Right

The first issue is whether factual support exists to support Siwiec's constitutional claim for denial of medical treatment. In essence, Siwiec contends that he was rendered unconscious and so visibly injured that defendants Anderson, Thompson, and Harris violated the Fourteenth Amendment by failing to provide him with prompt medical treatment either at the scene or while in defendants' custody. He states that he did not deny any offer of medical attention and that although confused and disoriented, he was merely dropped off in the parking lot of the hospital so that Washington County would not get charged for his medical care. He contends that defendants should have kept him in custody and taken him to the hospital for treatment.

Siwiec was entitled to medical care once he was arrested and taken into custody. However, to the extent Siwiec's claim is premised on the time period prior to his arrest, this court perceives no possible constitutional violation. It "is essential to realize that the state's duty to provide medical services stems from the limitation which the state has placed on the individual's ability to act on his own behalf, and not from the state's knowledge of the individual's predicament or from its expressions of intent to help him." Griffith v. Johnston, 899 F2d 1427, 1439 (5^th Cir 1990), cert denied, 498 US 1040 (1991) (citation omitted).²⁰

20 Although Siwiec's only claim is for denial of medical treatment post-arrest, all information defendants had concerning Siwiec's condition pre-arrest is relevant to the issue of whether they violated the Fourteenth Amendment by failing to provide him with medical treatment post-arrest.

"Because [Siwiec] had not been convicted of a crime, but had only been arrested, his rights derive from the due process clause rather than the Eighth Amendment's protection against cruel and unusual punishment." Gibson v. County of Washoe, Nev., 290 F3d 1175, 1187 (9^th Cir 2002), cert denied, 537 US 1106 (2003) (citations omitted). Although the denial of medical care to unsentenced prisoners is a violation of the Fourteenth Amendment, it is governed by the same "deliberate indifference" standard applied to sentenced prisoners under the Eighth Amendment. Frost v. Agnos, 152 F3d 1124, 1128 (9^th Cir 1998). The deliberate indifference standard has both an objective and subjective component. The objective component is the existence of a "sufficiently serious" risk to an inmates' health or safety; the subjective component is that awareness of facts from which the risk could be inferred and actually drawing that inference. Farmer v. Brennen, 511 US 825, 826-27 (1994) (citation omitted).

Defendants have submitted their own affidavits, as well as affidavits from two paramedics, that they repeatedly offered medical treatment to Siwiec which he refused, and that he displayed no apparent signs of brain injury, had equal and reactive pupils, and was lucid and coherent in his thoughts and discourse. Thompson asserts that Siwiec continued to refuse medical care even when transported to the hospital and that he left Siwiec by the emergency room doors. Siwiec voluntarily left the hospital and walked to a pay phone at a convenience store where he called a friend to pick him up and take him home. At home he refused his mother's insistence that he seek immediate medical attention, and instead took a nap. In other words, Siwiec appeared to be an injured adult who was in possession of his faculties, able to make decisions for himself, including a refusal to seek medical treatment when offered. A person has a liberty interest under the Fourteenth Amendment to refuse treatment grounded on "well established, traditional rights to bodily integrity and freedom from unwanted touching." Vacco v. Quill, 521 US 793, 806 (1997) (citations omitted). In sum, defendants assert that they were bound to accept Siwiec's decision to exercise his right to refuse medical treatment.

However, Siwiec and other witnesses have submitted contrary evidence indicating that Siwiec had been unconscious after the accident and was dizzy prior to being transported to the East Precinct. Kraft Aff, ¶¶ 12-13, 20, 26, 38; Dickerson Supp Aff, Exs. 5-6. While at the East Precinct, Siwiec was still bleeding, and reported to a police officer that he had a headache and his hands hurt. Richarte Aff, ¶ 19. Jail officials refused to receive Siwiec into the jail due to his injuries. Thompson Aff, ¶ 21. Approximately three and a half hours after the accident, Siwiec was staggering, stumbling, and swaying as he attempted to walk home. Pierce Aff, ¶ 5. He was also visibly shaking, his arms and legs were jerking and twitching, and he appeared to his friend to be incoherent, confused, badly injured, and unable to recount what had happened to him in a rational manner. Id, ¶¶ 8, 12.

Thompson does not deny that Siwiec needed medical attention. To the contrary, Thompson states that he believed that Siwiec should obtain medical attention, and transported Siwiec to the Tuality Hospital in Hillsboro after the jail refused to admit him. However, Thompson contends that, from the time of his first contact with him, Siwiec appeared oriented to time and place and circumstances, never displayed signs of nausea, was able to relay George's name and phone number. Thompson asserts that he repeatedly asked Siwiec whether he wanted medical attention and Siwiec repeatedly told him that his injuries were not serious and he did not need medical aid.

A review of this evidence reveals a material factual dispute over Siwiec's condition spanning the time period between the accident and Siwiec's release from custody. Thus, the record presents a genuine issue of material fact as to the nature and extent of Siwiec's injuries which this court cannot resolve on summary judgment. For purposes of defendants' motion, this court must view the evidence in Siwiec's favor. Based on that view of the evidence, Siwiec was seriously injured, was not offered and did not refuse medical treatment, and even if he had refused, may not have been sufficiently coherent to realize that he needed medical attention. Yet defendants did not provide him with medical attention prior to releasing him from custody. In short, there is evidence from which a "reasonable jury could conclude that . . . the individual officers knew of and were deliberately indifferent to this substantial risk of serious harm [Siwiec] faced if not properly treated." Lolli v. County of Orange, 351 F3d 410, 420 (9^th Cir 2003). This conduct would constitute a violation of Siwiec's Fourteenth Amendment right.

b. Clearly Established Right

The second part of the qualified immunity analysis requires the court to determine if the constitutional right was clearly established. There is no dispute that a person held in custody has the right to prompt medical treatment when he faces a substantial risk of serious harm if not properly treated. Therefore, if Siwiec was seriously injured, and if he was not offered and never refused medical treatment, then defendants Anderson, Thompson, and Harris have no qualified immunity defense to the First Claim.

2. Excessive Force, Unlawful Arrest Searches (Second, Third Fourth Claims) a. Fourth Amendment Controls

Siwiec's next three claims allege that: (1) Anderson, Thompson and Harris used excessive force in arresting him (Second Claim); (2) Anderson Thompson and Harris arrested him and continued to detain him without probable cause (Third Claim); and (3) Thompson, Cuthbertson, and Obenauf illegally searched his person and his property (Fourth Claim). These claims invoke the Fourth, Eighth, and Fourteenth Amendments.²¹

21 Only the Second Claim alleges a violation of the Eighth Amendment.

It is the Fourth Amendment that is implicated when an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen and the Eighth Amendment that is implicated when an excessive force claim arises in the context of a post-conviction prison encounter. Graham v. Conner, 490 US 386, 393-95 n 10 (1989). Because Siwiec's Second Claim does not involve post-conviction excessive force, the Fourth Amendment guides the analysis of that claim. Similarly, claims involving arrest without probable cause or a warrant are examined under Fourth Amendment standards. See Albright v. Oliver, 510 US 266, 274-75 (1994). Additionally, where a particular Amendment "provides an explicit textual source of constitutional protection against [particular] governmental conduct, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analy[sis]. . . ." Graham, 490 US at 395. Here, Siwiec challenges his arrest and continued detention, the use of force during his arrest, and searches of his person and property. These claims are clearly governed by the Fourth Amendment, not the Eighth or Fourteenth Amendments. Therefore, defendants are entitled to summary judgment against Siwiec's Second, Third, and Fourth Claims insofar as they rely on violations of the Eighth or Fourteenth Amendments.

b. Excessive Force (Second Claim)

The Second Claim alleges that defendants Anderson, Thompson and Harris violated Siwiec's right to be free from excessive force and harassment, and unnecessary and wonton infliction of pain. This claim arises solely from the fact that Thompson placed handcuffs on Siwiec when placing him under arrest and left them there during his continued detention.

In order to hold any of the defendants liable under § 1983, Siwiec must show that they individually participated in the alleged violation. Taylor v. List, 880 F2d 1040, 1045 (9^th Cir 1989). Similarly, a "supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983." Id (citations omitted).

Nothing in the record indicates that any defendant other than Thompson placed Siwiec into handcuffs or participated in the decision to keep him in handcuffs while he was detained. Because there has been no showing that they participated in the decisions or actions underlying this claim, Anderson and Harris are entitled to summary judgment, leaving only Thompson as a defendant with respect to the Second Claim.

Handcuffing per se is not unreasonable or excessive force. Alexander v. County of Los Angeles, 64 F3d 1315, 1320 (9^th Cir 1995). However, the refusal to loosen tight handcuffs can constitute excessive force. Id at 1322-23; Palmer v. Sanderson, 9 F3d 1433, 1434-35 (9^th Cir 1993). An officer's use of force in any "seizure" of a person is analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham, 490 US at 388. The reasonableness of the force used to effect a particular seizure is determined by "careful[ly] balancing . . . `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id at 396, quoting Tennessee v. Garner, 471 US 1, 8 (1985). As the Ninth Circuit has held, "the force which [is] applied must be balanced against the need for that force." Liston v. County of Riverside, 120 F3d 965, 976 (9^th Cir 1997).

Viewing the facts and inferences in the light most favorable to Siwiec, he was subjected to handcuffs that were overly tight and Thompson did not loosen the handcuffs despite Siwiec's complaints of pain. Before being transported to the police station, Siwiec recalls that Thompson "handcuffed me in front because he didn't — I couldn't get my arms behind my back because it hurt too bad and I remember he handcuffed me in front." Siwiec Depo, p. 47. Siwiec also testified that "he, you know, was just checking to make sure he wasn't putting them on, you know, super tight or whatever because my hands were so bloody." Id at 48. Nevertheless, Siwiec complains that he was handcuffed, remained in handcuffs for the majority of the evening, and that the handcuffs aggravated his injuries and inflicted severe pain on him. Siwiec Aff, ¶ 12. Because he was cooperative and non-combative, Siwiec contends that there was no need to restrain him in handcuffs while in custody.²² One witness who was at the East Precinct at the same time as Siwiec heard him tell a police officer that he had a headache and his hands hurt.²³ Richarte Aff, ¶ 19.

22 The record does not reveal any Washington County policy concerning handcuffing.

23 This witness does not say whether Siwiec specifically complained of pain due to the handcuffs, or whether his complaints were due to pain caused because of injuries sustained in the accident. Once again, this court construes the record in Siwiec's favor and attributes these complaints to pain caused by the handcuffing.

The record in this case is not as detailed, and does not appear to present the more aggravated facts of Alexander (suspect handcuffed for 45 minutes despite complaining of pain and telling officers he was a dialysis patient, resulting in hands swelling and turning blue, and symptoms of numbness and inability to make a fist nine months post-handcuffing) or Palmer (refusal to loosen handcuffs on 67 year old recent stroke victim with impaired mobility). Nevertheless, Siwiec has presented evidence that Thompson disregarded Siwiec's complaints of hand pain and inflicted severe pain on him by leaving him in handcuffs most of the time he was in custody. Because the record reveals this disputed issue of fact regarding a Fourth Amendment violation, and the right in question was clearly established at the time of Siwiec's arrest, Thompson enjoys no qualified immunity defense to the Second Claim. c. False Imprisonment (Third Claim)

The Third Claim alleges that defendants Anderson, Thompson, and Harris unlawfully detained Siwiec. This claim is premised upon the contention that Siwiec was arrested without probable cause.

A careful review of the entire record reveals that it was Thompson, not Anderson or Harris, who arrested Siwiec. Siwiec Amended Complaint, ¶ 18. Harris, who was a reserve deputy at the time, was not permitted to act independently and there is no evidence in the record that Harris initiated Siwiec's arrest or who made any other decision regarding Siwiec's continued detention. Gordon Aff, ¶ 6. Similarly, Anderson played no part in initiating Siwiec's arrest, and had no direct contact with him while he was at the East Precinct. Anderson Aff, ¶¶ 7-8, 11. Thus, the record does not support a claim for a violation of the Fourth Amendment based on Siwiec's allegedly illegal arrest against Harris or Anderson, and those defendants are granted summary judgment against the Third Claim.

The unlawful arrest claim against Thompson fails on its merits. Siwiec's basic argument is that Thompson should have recognized that his symptoms at the scene of the accident were consistent with head trauma and, therefore, should not have arrested him. The problem with that argument is that those same symptoms are consistent with intoxication, and Thompson had ample probable cause to suspect that Siwiec had violated Oregon law concerning DUII.

ORS 133.310 authorizes police officers to make a warrantless arrest when they have probable cause to believe that the person has committed a misdemeanor. According to ORS 813.010(1), a person commits the offense of DUII:

if the person drives a vehicle while the person:

a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140, or 813.150; or

b) Is under the influence of intoxicating liquor, a controlled substance or inhalant; or

c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.

This offense is a class A misdemeanor. ORS 813.010(4).

Oregon Administrative Rule 257-025-0010 provides that:

The following acts, signs or symptoms are, typically, present in circumstances of intoxicant impairment. They are not field sobriety tests. A police officer may testify to their presence at any proceeding, criminal or civil, resulting from a DUII (driving under the influence of intoxicants) arrest. These acts, signs and symptoms include, but are not limited to:

(1) Difficulty in walking or unusual walking.

(2) Difficulty standing.

(3) Difficulty following directions.

(4) Odor of alcoholic beverages on the breath.

(5) Flushed or pale appearance.

(6) Speech difficulties or unusual speech patterns.

(7) Disorderly or unusual conduct or demeanor.

(8) Lack of muscular coordination or muscular tremors.

(9) Evidence of mental disturbance.

(10) Visual disorders or difficulties.

(11) Sleepiness or drowsiness.

(12) Dizziness.

(13) Nausea or vomiting.

(14) Mood swings.

(15) Difficulty with divided attention.

(16) Bloodshot and/or watery and/or glassy eyes.

Whether a warrantless arrest is constitutionally valid depends upon whether, at the moment of arrest, the officer had probable cause to make the arrest. United States v. Martin, 509 F2d 1211, 1213 (9^th Cir 1975), cert denied, 421 US 967 (1975) (citation omitted). The existence of probable cause negates a § 1983 claim based on an alleged false arrest and the legality of the arrest is not affected by the subsequent dismissal or acquittal of the charges. Pierson v. Ray, 386 US 547, 555 (1967); Benson v. Hightower, 633 F2d 869, 871 (9^th Cir 1980), cert denied, 454 US 820 (1981) (citing Pierson). Where the facts are not in dispute, the question of whether there was probable cause to arrest in one of law for the court. See Linn v. Garcia, 531 F2d 855, 861 (8^th Cir 1976). The officer is not required to conduct a trial before determining to make the arrest. Id at 861. The Fourth Amendment requires a standard of reasonableness, not certainty, and a sufficient probability is the touchstone of reasonableness. Hill v. California, 401 US 797, 804 (1971). Arresting officers have probable cause if, at the time of arrest, the facts and circumstances within their knowledge and of which they have reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. Martin, 509 F2d at 1213. The court will consider all the facts known to the officers and consider all the inferences that could be drawn by them before arrest. Id (citation omitted). A seizure of a person must be supported by probable cause particularized with respect to that person. United States v. Prieto-Villa, 910 F2d 601, 604 (9^th Cir 1990).

Defendants have presented undisputed evidence that Siwiec's eyes were bloodshot and that Thompson detected a moderate odor of alcohol on Siwiec's breath. Siwiec also told Thompson that he had consumed two 16-ounce beers in the hours preceding the accident and Thompson observed signs of intoxication — i.e., slow, deliberate and slightly slurred speech, and some problems with balance and coordination. Thompson administered two field sobriety tests which supported his final conclusion that Siwiec was under the influence of intoxicants.²⁴ Based on his experience and training, Thompson reasonably believed plaintiff had committed the crime of DUII when he arrested Siwiec.

24 After the arrest, Siwiec took a breathalyzer test which revealed blood alcohol content over the legal limit. In addition, a paramedic who assessed Siwiec prior to his contact with Thompson smelled alcohol on Siwiec's breath. Knapp Aff, ¶ 4. However, those pieces of information were not available to Thompson at the time he made the decision to arrest Siwiec, and the breathalyzer test is challenged by Siwiec, who asserts that the results were skewed due to bleeding in his mouth. Thus, that factual information is not considered for purposes of determining whether Thompson had probable cause to arrest Siwiec for DUII at the scene.

Despite the results of the field sobriety tests, Siwiec claims that he was wrongfully arrested for DUII. He admits that he did drink some beer, but not enough to raise his percentage of alcohol in his blood over the legal limit. Siwiec points out that Washington County's training manuals advise police officers to be aware of the symptoms of a head injury and argues that Thompson should have recognized that many of the symptoms of intoxication are similar or identical to the symptoms of a head injury. While that argument may well advance Siwiec's claim that Thompson was deliberately indifferent to his medical needs, it does not further his claim that Thompson lacked probable cause to arrest him. As explained above, Thompson had sufficient indicators of alcohol intoxication to arrest Siwiec for DUII.

Based on the totality of the circumstances and the facts known to Thompson at the time of the arrest, Thompson had probable cause to arrest Siwiec for DUII and Thompson's actions were reasonable under the circumstances. Because Thompson did not violate Siwiec's rights under the Fourth Amendment by arresting him for DUII, he is entitled to summary judgment on his qualified immunity defense against Siwiec's Third Claim. d. Illegal Search and Seizure (Fourth Claim)

The Fourth Claim alleges that defendants Thompson, Cuthbertson, and Obenauf unlawfully searched Siwiec and his property, which revealed the marijuana and handgun, in violation of his rights guaranteed by the Fourth and Fourteenth Amendments. The allegations in the pleadings identify three allegedly unlawful searches, namely: (1) Thompson's search of Siwiec's person (Siwiec Amended Complaint, ¶ 14); (2) field sobriety and breathalyzer testing performed on Siwiec by Thompson ( id, ¶¶ 15, 23);²⁵ and (3) Obenauf's search of the toolbox torn from Siwiec's truck during the accident ( id, ¶ 22). In addition, although not expressly stated in the pleadings, the briefing by the parties also challenges the search of a backpack found in the toolbox and a small plastic container found at the scene.

25 The pleadings do not indicate which defendant performed the breathalyzer test, but the only evidence in the record indicates that Thompson did so. Thompson Aff, ¶ 11.

Again, personal participation is required to hold a particular defendant liable for any particular constitutional violation. Taylor, 880 F2d at 1045. The record reveals that Thompson, not Obenauf or Cuthbertson, performed the pat-down search, field sobriety testing, and breathalyzer testing on Siwiec. Thus, Obenauf and Cuthbertson are entitled to summary judgment against the Fourth Claim with respect to those searches. Similarly, nothing in the record supports the conclusion that Thompson conducted a search of the tool box, the plastic container containing the marijuana, or the backback. Thus, Thompson is entitled to summary judgment against the Fourth Claim with respect to those searches. i. Search of Siwiec's Person by Thompson

Siwiec first contends that the search of his person was unlawful. However, that argument turns on the contention that his arrest for DUII was unlawful.²⁶ As discussed above, Thompson had ample probable cause to arrest Siwiec for DUII. "`A police officer may, incident to a lawful arrest, conduct a contemporaneous warrantless search of the arrestee's person and of the area into which the arrestee might reach to retreive a weapon or destroy evidence.'" United States v. Tarazon, 989 F2d 1045, 1051 (9^th Cir), cert denied, 510 US 853 (1993), quoting United States v. Andersson, 813 F2d 1450, 1455 (9^th Cir 1987). The search of Siwiec's pockets clearly was within the bounds of that standard. Accordingly, Thompson is entitled to summary judgment against the Fourth Claim to the extent it rests on his allegedly unlawful search of Siwiec's person.²⁷ ii. Field Sobriety and Breathalyzer Testing by Thompson

26 Siwiec insists that his arrest record was set aside and that his arrest cannot be considered. However, the court set aside only the record of Siwiec's arrest for the three charges other than DUII. Moreover, setting aside the record of an arrest does not negate that an arrest in fact took place and cannot be used offensively in a § 1983 action to create a type of strict liability for later actions, the legality of which turn at least in part on the legality of the arrest.

27 In their briefing on the present motions, the parties also dispute whether the seizure of money from Siwiec was lawful. While there is a reference to that seizure in the pleadings (Siwiec Amended Complaint, ¶ 35) and in Thompson's testimony (Thompson Aff, ¶ 18, referencing seizure of marijuana, a handgun, and $680 in currency), the Fourth Claim alleges only an unlawful search, not an unlawful seizure (Siwiec Amended Complaint, ¶ 56) and the record is silent as to what became of the $680 after the criminal charges were dismissed. The seizure of the money was based on Thompson's belief that it was illgotten gains from dealing in marijuana, based on the marijuana found in the plastic container at the scene of the accident. Thompson Aff, ¶ 15. "Circumstantial evidence of drug transactions is sufficient to support the establishment of probable cause in a forfeiture proceeding." United States v. $93,685.61 in U.S. Currency, 730 F2d 571, 572 (9^th Cir), cert denied, 469 US 831 (1984). Although Siwiec argues that there was no basis for the seizure of the money because he had been arrested on DUII, not drug charges, the later discovery of the marijuana provided a basis for the subsequent seizure of the money. Thus, the Fourth Claim either does not include a claim for an unlawful seizure, or any such claim is meritless.

Siwiec also argues that the field sobriety testing and breathalyzer testing performed by Thompson were unlawful. Under Oregon's implied consent laws, a person who operates a vehicle upon premises open to the public is deemed to have consented to field sobriety tests if the requesting police officer reasonably suspects that the person has committed the offense of DUII. ORS 813.135. At the time Thompson requested Siwiec to perform the field sobriety tests, he had responded to a four-car collision, observed Siwiec's bloodshot eyes and an odor of alcohol on his breath, had been informed that Siwiec was the driver of the overturned pickup truck, and had been told by Siwiec that he had consumed two beers in the hours before the accident. Thompson had more than ample information from which to form reasonable suspicion that Siwiec had committed the offense of DUII. Siwiec's arguments that Thompson should have attributed some of Siwiec's other symptoms (dizziness, slurred speech, etc.) to a head injury rather than to intoxication fails to undermine the fact that Thompson had sufficient indicators of intoxication to justify his request that Siwiec perform field sobriety testing. Thus, to the extent Siwiec's Fourth Claim rests on Siwiec's assertion that the field sobriety testing violated his Fourth Amendment rights, Thompson is entitled to summary judgment.

A similar analysis defeats Siwiec's claim for a constitutional violation based on the breathalyzer testing Siwiec underwent at the East Precinct. Oregon's implied consent laws also provide that a person who is arrested for DUII is deemed to consent to a chemical test of his or her breath or blood to determine its alcoholic content. ORS 813.100. Refusal to submit to the testing results in immediate suspension of driving privileges and a fine of at least $500. ORS 813.130(2)(d) (f). In this case, Siwiec submitted to the breathalyzer test,²⁸ which returned a blood alcohol content reading of 0.09%, above the legal blood alcohol content limit for non-commercial driving in Oregon. ORS 813.130(2)(b).

28 Although Siwiec states that he was "compelled" to take the breathalyzer test, Siwiec Supp Aff, ¶ 6, nothing else in the record hints that this compulsion was anything other than the fact he had been arrested for DUII and was therefore subject to the implied consent law.

Siwiec challenges the results of the breathalyzer test, arguing that they were skewed because he was still bleeding from lacerations in and around his mouth at the time the test was taken. However, this argument does not render the fact that Siwiec was tested, in and of itself, unconstitutional. It is undisputed that Siwiec had been placed under arrest for DUII, and he has not challenged Thompson's statement that he asked Siwiec to take the test in accordance with the prescribed procedure. Thompson Aff, ¶ 11. As described in more detail above, Thompson had ample probable cause to arrest Siwiec for DUII. The breathalyzer test that resulted is statutorily prescribed and nothing in the record supports a constitutional claim based on Thompson's act of following that procedure and subjecting Siwiec to a breathalyzer test. Conducting a test in an improper manner does not create a constitutional problem; the constitutional issue is whether there was a basis for conducting the test in the first instance. Thus, defendant Thompson is entitled to summary judgment on his qualified immunity defense against the Fourth Claim to the degree that it rests on allegations of an unlawful search by breathalyzer testing.

iii. Search of Personal Property by Cuthbertson Obenauf

Finally, Siwiec contends that Cuthbertson and Obenauf conducted illegal searches of his toolbox, which had become dislodged from his truck during the accident, a backpack located in the toolbox, and a plastic container holding marijuana found at the scene. For the reasons that follow, defendants are entitled to summary judgment with regard to both of those searches.

(a). The Plastic Container

Although the parties' materials are somewhat elusive on this topic, it appears that there may be some contention that a plastic container found at the scene of the accident was improperly searched, and that a quantity of marijuana in that container was improperly seized. Both of these contentions are without merit.

There is some dispute about whether the plastic container came into police custody before or after Siwiec's vehicle was righted by the tow truck driver and whether Womer or Obenauf picked it up off of the ground. The tow truck driver avers that he saw Womer pick it up off of the pavement some time between 12:40 and 12:47 a.m., prior to the time that he righted Siwiec's truck. Torkelson Aff, ¶¶ 2, 13-14. A photograph taken at the scene at 12:25 a.m. clearly shows the plastic container on the ground underneath the overturned truck and seems to corroborate the testimony that the container was already on the pavement before the truck was righted. Dunn Aff, ¶ 2 and Ex 3. Another witness saw Womer hand a plastic container to Obenauf prior to the time Siwiec's truck was righted. Richarte Aff, ¶¶ 1, 3, 10, 16. Kraft implies that the marijuana found at the scene was his (Kraft Aff, ¶ 45), but does not indicate where the plastic container in which it was stored was located just prior to the accident. Meanwhile, Cuthbertson and Obenauf contend that the plastic container was still on the ground, that they noticed it after the truck was righted, and that Obenauf picked it up. Cuthbertson Aff, ¶ 5; Obenauf Aff, ¶ 5. Obenauf then handed it to Cuthbertson and in that process, the lid was squeezed and the odor of marijuana escaped. Cuthbertson Aff, ¶ 6; Obenauf Aff, ¶ 6.

However, this slight discrepancy in facts is immaterial to the question of whether the search and seizure of the plastic container and the marijuana meets constitutional muster. The only available evidence indicates that the plastic container was on the roadway in plain sight when it was retrieved by a police officer. Moreover, through the side and bottom of the opaque container, defendants could see a "green vegetable material consistent with what in [their] training and experience [wa]s marijuana in a form ready for consumption by smoking." Thompson Aff, ¶ 13; see also Cuthbertson Aff, ¶ 5 and Obenauf Aff, ¶ 5. Because the plastic container was in plain view to the officers where they were lawfully present, and because the criminal nature of the contents of the container were immediately apparent, the officers were justified in seizing the container and its contents under the "plain view" doctrine. Coolidge v. New Hampshire, 403 US 443, 466 (1971) ("the `plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nontheless inadvertently comes across an incriminating object."); see also, United States v. Bulacan, 156 F3d 963, 968 (9^th Cir 1998). Furthermore, the odor of marijuana inadvertently released when Obenauf handed the container to Cuthbertson provided probable cause for a search of the container. See Johnson v. United States, 333 US 10, 13 (1948); United States v. DeLeon, 979 F2d 761, 764-65 (9^th Cir 1992).²⁹

29 Although an argument could be made that passing the container to another person is unlikely to result in the lid being "squeezed" and the odor of marijuana escaping, Siwiec has not made that argument or in any way disputed that testimony. Nor has Siwiec asserted that Cuthbertson and Obenauf are not qualified to know the odor or that the odor of the marijuana in the container was not sufficiently distinctive. DeLeon, 979 F2d at 765 (noting that warrant based on evidence of odor alone requires showing that the affiant is "qualified to know the odor" and that the odor is "sufficiently distinctive to identify a forbidden substance") (citations omitted). Thus, this court is left with undisputed evidence that defendants recognized both the appearance and the odor of the "vegetable material" in the container as marijuana, which wholly undermines any claim premised upon an allegedly unlawful search of the plastic container.

Accordingly, defendants are entitled to summary judgment against the Fourth Claim to the extent it is premised upon any search or seizure of the plastic container or its contents.

(b). Toolbox and Backpack

Siwiec also contends that Obenauf illegally searched a large chrome toolbox that had come dislodged from his truck during the accident and of a backpack that was located in that toolbox. This toolbox was located in the bed of Siwiec's truck just prior to the accident but apparently came dislodged as a result of the accident. Siwiec Supp Aff, ¶ 7.³⁰

30 Obenauf contends that the backpack fell out of the truck when it was righted. Obenauf Aff, ¶ 7. However, the tow truck driver asserts that nothing but CDs fell out of the truck when it was righted, that no Washington County deputies were near the truck when it was righted, and that he saw a backpack in the toolbox that Obenauf searched. Torkelson Aff, ¶¶ 6-7, 21-23, 29-30. Thus, for purposes of these motions, this court must assume that the backpack was in the toolbox that had come dislodged from the truck during the accident.

At about 12:40 a.m., a tow truck driver saw a dark cloth backpack in the chrome toolbox lying near the truck on the pavement. Torkelson Aff, ¶¶ 6-8. He and another passerby saw Obenauf bent over the toolbox, digging through it with his flashlight. Id, ¶¶ 22-23; Rutland Aff, ¶¶ 5-8. He was putting things from the toolbox on top of it and on the road. Id, ¶ 9. When Obenauf picked up the backpack, he perceived the weight and form of a handgun inside. Obenauf Aff, ¶ 7. He opened the backpack and discovered a semi-automatic handgun. Id. One witness heard Obenauf say something about a backpack during a radio call. Rutland Aff, ¶ 14. He also heard Obenauf tell Cuthbertson that he wanted to show him something he had found "in the guy's toolbox." Id, ¶ 21.

Defendants' briefing does not address the propriety of the search of Siwiec's toolbox or backpack, but they appear to justify those searches as inventory searches of an impounded vehicle. It is "undisputed that once a vehicle has been impounded, the police may conduct an inventory search." United States v. Wanless, 882 F2d 1459, 1463 (9^th Cir 1989), citing South Dakota v. Opperman, 428 US 364, 369 (1975). "A warrantless inventory search of a vehicle is proper if the automobile is impounded pursuant to standard police procedures and is made without investigatory intent." United States v. Vasey, 834 F2d 782, 790 n 4 (9^th Cir 1987), citing Opperman, 428 US at 375-76.

In his Special Report dated April 9, 2000, Thompson indicates that he "told Dep[uty] Womer who was investigating the accident to do an inventory search of the Truck before it was towed for DUII." Dickerson Supp Aff, Ex 9, p. 4. Siwiec was arrested at 12:40 a.m. and transported to the East Precinct by 12:47 a.m. Siwiec Amended Complaint, ¶¶ 18-20. Obenauf arrived at the scene and searched the toolbox after Siwiec had already been transported away from the accident scene. Obenauf Aff, ¶ 3; Rutland Aff, ¶¶ 1, 5-6; Torkelson Aff, ¶¶ 2, 6-29. This testimony is entirely consistent with an inventory search of an impounded vehicle, as is Obenauf's testimony that he "looked through the backpack to see if there were any valuables requiring inventory and accounting for the owner." Obenauf Aff, ¶ 7. The truck was transported to a tow lot at 1:43 a.m. Torkelson Aff, ¶ 35.

Siwiec has presented nothing indicating that defendants exceeded the scope of a permissible inventory search. Accordingly, to the extent the Fourth Claim rests on allegations regarding the search of the toolbox or the backpack, defendants are entitled to summary judgment.

3. Illegal Interrogation (Fifth Claim)

Siwiec alleges in his Fifth Claim that defendants Anderson, Thompson, and Harris unlawfully interrogated him in violation of his rights guaranteed by the Fifth, Sixth and Fourteenth Amendments.³¹ In particular, he contends that his continued interrogation, following his request to contact his attorney, violated the Constitution, citing Miranda v. Arizona, 384 US 436 (1966).

31 Although this claim is alleged against all defendants, Siwiec conceded at oral argument that this claim is directed only against defendants Anderson, Thompson, and Harris.

The Fifth Amendment requires that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The Fifth Amendment is regularly invoked to prevent the use of coerced statements against a defendant in criminal proceedings. In this case, Siwiec's Fifth Amendment claim suffers from two fatal flaws.

First, nothing in the record indicates that Siwiec made any statement to defendants while in custody that defendants could or did use in any further criminal proceeding against Siwiec. The touchstone of a Fifth Amendment claim is that the later use of an incriminating statement by the defendant while in custody. When Thompson first contacted Siwiec at the scene, he asked Siwiec whether he had consumed any alcoholic beverage prior to the accident and Siwiec responded that he had two 16-ounce beers over a two or three hour period prior to the accident. That statement, combined with Thompson's other observations, led to Thompson initiating a field sobriety test on Siwiec. However, nothing in the record indicates that Siwiec made any statement while in custody. To the contrary, the pleadings allege that defendants stated Siwiec "was not talking to them" (George Amended Complaint, ¶ 31) and "had not offered a confession of any kind." Siwiec Amended Complaint, ¶ 26.

Second, even if Siwiec identified a statement which was arguably incriminating and made while in custody without Miranda warnings, the record is abundantly clear that Siwiec was never tried on either of the two resulting charges. Within the past year, a court in this circuit exhaustively reviewed the case law addressing the issue, and concluded that for Fifth Amendment purposes "`criminal case' means `criminal trial,' i.e., a proceeding at which a defendant's guilt is determined. Therefore the Fifth Amendment privilege is not violated by the use of a defendant's compelled statements unless and until the statements are used against the defendant at trial." Crowe v. County of SanDiego, 303 F Supp 2d 1050, 1086-91 (SD Cal 2004). For the same reasons articulated in Crowe, this court concludes that the Fifth Amendment portion of Siwiec's Fifth Claim fails because he was never subjected to a trial.

Siwiec also premises his Fifth Claim on a violation of the Sixth Amendment, which guarantees a criminal defendant "the right . . . to have the Assistance of Counsel for his defense." That right attaches "only at or after the initiation of adversary judicial proceedings against the defendant." United States v. Goeveia, 467 US 180, 187 (1984); see also Kirby v. Illinois, 406 US 682, 689 (1979) (plurality opinion) (Sixth Amendment right attaches "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."). Siwiec's Fifth Claim hinges on defendants' alleged acts of ignoring Siwiec's requests for counsel while at the East Precinct. It is undisputed that Thompson never cited Siwiec with any offense until just prior to releasing him from custody in the hospital parking lot, when he cited him for DUII, a class A misdemeanor. Thompson Aff, ¶ 22; ORS 813.010(4). Based on this record, that is the earliest point in time that Siwiec's Sixth Amendment right to counsel could have attached, and there is no allegation or evidence by Siwiec that he requested and was denied counsel between the time he was cited and the time he was released from custody. Thus, his Sixth Amendment right to counsel had not yet attached and cannot form the basis for a constitutional violation.

It is undisputed that nothing that Siwiec said or did not say was used against him, and with or without counsel. Thus, the harm which the Fifth and Sixth Amendments, and the advice of rights under those amendments, seek to prevent never occurred. Therefore, Siewiec's Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel were not infringed.

Finally, Siwiec alleges a violation of the Fourteenth Amendment. A claim to constitutional injury predicated on violation of substantive due process may only be found where other constitutional provisions do not cover the conduct alleged. Because, as just discussed, neither the Fifth nor the Sixth Amendments provide Siwiec any refuge, his Fifth Claim must stand or fall based on a violation of the Fourteenth Amendment. In this context, such a claim requires proof of police conduct that either "shocks the conscience" or "interferes with rights `implicit in the concept of ordered liberty.'" Chavez v. Martinez, 538 US 760, 787 (2003). However, nothing in the record supports the conclusion that defendants' conduct rose to that level.

Both Siwiec's and George's pleadings contain some allegations about police conduct between 12:41 a.m. (when Siwiec was transported from the accident scene to the East Precinct) and 2:47 a.m. (when Siwiec was "abandoned" in a hospital parking lot). Siwiec Amended Complaint, ¶¶ 23, 26, 28, 31; George Amended Complaint, ¶¶ 15, 31-33. In particular, George alleges that between 1:30 a.m. (her arrival at East Precinct), and 1:37 a.m. (when she used a telephone at East Precinct), Thompson "began screaming at [Siwiec], ordering him to stand-up and repeat to plaintiff each statement Thompson ordered him to say. [Siwiec] attempted to cooperate to the best of his ability, but was unable to stand, and collapsed into the chair." Id, ¶¶ 15, 18; see also Siwiec Amended Complaint, ¶ 26. George's pleadings also imply that one or more of the defendants inflicted bodily harm on Siwiec shortly after Obenauf and Cuthbertson arrived at the East Precinct. George Amended Complaint, ¶ 32.

The difficulty with these unsworn allegations³² is that they are supported only by a single conclusory statement in Siwiec's affidavit that he was "repeatedly berated, mocked, coerced, and verbally abused." Siwiec Aff, ¶ 22. He gives no further details, leaving the court to speculate as to which officers were involved in what specific activity, and as to the specific nature of the alleged mockery, coercion, and verbal abuse that transpired during the two hours he was in police custody. George's affidavit is silent on anything which transpired at the East Precinct, other than what she observed about Siwiec's physical condition when she saw him there. George Aff, ¶ 7.

32 Neither Siwiec nor George signed their pleadings.

In contrast, Anderson states that he had "no direct contact with Mr. Siwiec at East Precinct, although [he] did observe [Siwiec] there in conversation with other deputies." Anderson Aff, ¶ 11. Although both Thompson and Harris admit direct contact with Siwiec during the time he was in custody, neither their affidavits nor any other evidence in the record indicates that they did anything untoward to Siwiec during that time.

Even if this court assumes the truth of the allegations in the pleadings regarding the illegal interrogation of Siwiec, this court is left with nothing to specify any actionable conduct by Anderson or Harris. At worst, according to the pleadings, Thompson screamed at Siwiec to stand up and repeat unspecified statements made by Thompson. That allegation, even when supported by the single perfunctory sentence in Siwiec's affidavit, is insufficient to establish a prima facie case of police conduct that "shocks the conscious" or "interferes with rights implicit in the concept of ordered liberty." As a result, the Fifth Claim based on a violation of the Fourteenth Amendment fails based on a qualified immunity defense due to insufficient evidence to support a constitutional violation.

C. Merits of Remaining § 1983 Claims Against Individual Defendants

As explained above, defendants are entitled to summary judgment against the Third, Fourth, and Fifth Claims. Therefore, the only surviving claims among the first five claims under § 1983 are the First and Second Claims. The same fact issues that preclude a qualified immunity defense as to the violation of a constitutional right also preclude summary judgment on the merits of these surviving claims. Therefore, defendants' summary judgment motion against these claims must be denied on the merits.

D. § 1983 Claims against Washington County

In addition to the individual defendants, Siwiec also sues Washington County on the first five claims under § 1983. A municipality cannot be held liable for the acts of its officers in an action under § 1983 based solely on the doctrine of respondeat superior. Monell v. Dep't of Social Serv, 436 US 658, 691 (1978). However, a municipality can be held liable where "the execution of a government's policy or custom" caused the constitutional injury. Id at 694. To clear the hurdle imposed by Monell of a policy or custom, a plaintiff may take one of three routes:

First, the plaintiff may prove that a [governmental] employee committed the alleged constitutional violation pursuant to a formal government policy or a "longstanding practice or custom which constitutes the `standard operating procedure' of the local government entity." Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with "final policy-making authority" and that the challenged action itself thus constituted an act of official government policy. Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.

Hopper v. City of Pasco, 241 F3d 1067, 1083 (9^th Cir), cert denied 534 US 951 (2001) (internal citations omitted).

In Siwiec's case, none of the individual defendants were officials with final policy-making authority. Instead, the patrol deputies reported to patrol sergeants, who in turn reported to lieutenants, who "formed the lower tier of command authority." Gordon Aff, ¶ 7. Lieutenants reported to the Operations Division Commander, who in turn reported to one of two Chief Deputies, who in turn reported to the Deputy Sheriff. Id. The Sheriff is in command of the department as a whole and sets policy for the operation of the department. Id. Thus, Siwiec must prove liability against Washington County, if at all, by showing either a "longstanding practice or custom which constitutes the `standard operating procedure' of the [County]" or ratification of an unconstitutional decision or action by an official with final policy-making authority.

1. Pattern and Practice

Plaintiffs have submitted a series of documents in an effort to show a pattern and practice. Those documents, at best, show that: (1) on July 26, 1993, Anderson was accused of contributing to the sexual delinquency of a minor or sex abuse of an "explorer" during a ride-along on March 20, 1993 (Davidson Aff, Ex 2, p. 6); (2) on August 10, 1998, a citizen reported that Anderson had misrepresented the age of a suspect to him ( id, Ex 2, p. 4); (3) Thompson was accused of throwing a lit cigarette out of his patrol car window on August 21, 2000 ( id, Ex 2, p. 5); (4) in February 2002, Obenauf was exonerated of a charge of using force during an encounter on February 23, 2001 ( id, Ex 2, p. 2); (5) on July 27, 2001, Anderson disrupted the amusement rides at the Washington County Fair, ordering the rides closed and bullying the ride operators and fair patrons ( id, Ex 2, pp. 7-10); (6) on June 1, 2002, unknown Washington County officers were accused of using force and planting evidence during an encounter with the complainant on January 16, 2002 ( id, Ex 2, pp. 11-15); (7) on June 6, 2002, another complainant questioned police conduct during a fatal encounter with the complainant's husband on November 27, 2001 ( id, Ex 2, p. 16); (8) in September 2002, Cuthbertson was exonerated of a charge of unprofessional conduct (details of complaint unknown) ( id, Ex 2, p. 1); and (9) in October 2002, Obenauf was orally reprimanded for speeding and disobeying a traffic control device during a June 29, 2002 incident ( id, Ex 2, p. 3).

As discussed above, the five claims Siwiec alleges against Washington County involve allegations of a denial of medical treatment, the use of excessive force, false imprisonment, illegal searches and seizures, and illegal interrogation. Of those, all but the First Claim (denial of medical care) and Second Claim (excessive force by use of handcuffs) fail on their merits for lack of a constitutional violation. Siwiec does not explain how the evidence he proffers tends to show a longstanding practice or custom that constitutes Washington County's "standard operating procedure" sufficient to form the basis for liability on the surviving claims.

Liability against Washington County turns on a showing that the execution of the policy or custom caused Siwiec's alleged constitutional injury. The "first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton, Ohio v. Harris, 489 US 378, 385 (1989). All but two of the documents proffered by Siwiec relate to conduct by Washington County officers which took place after the April 9, 2000 incident involving Siwiec. Proof of incidents which post-date the incident with Siwiec logically cannot prove a policy or custom which caused the constitutional injury alleged by Siwiec. This leaves two alleged incidents in 1993 and 1998 involving Anderson, neither of which involve conduct remotely similar to that underlying any of Siwiec's claims. Siwiec has wholly failed to explain how any of the documents he proffers (or any combination thereof) establishes a longstanding practice or custom which constituted Washington County's "standard operating procedure" and which caused the injuries he alleges. Thus, Siwiec has failed to establish any pattern or practice sufficient to support his claims of municipal liability against Washington County.

2. Post-Event Ratification

This leaves Siwiec's argument that Washington County may be held liable because it ratified the actions of its officers. Isolated instances of police misconduct are not sufficient to show that municipal policymakers had knowledge of and acquiesced in such misconduct. Oklahoma City v. Tuttle, 471 US 808, 823-24 (1985). There must be proof that the police misconduct was caused by an existing policy attributable to municipal policy decision makers. Id. The preexisting disposition of policymakers may be inferred from their response to police misconduct. Henry v. County of Shasta, 132 F3d 512, 520 (9^th Cir 1997), amended on denial of rehearing, 137 F3d 1372, cert denied, 525 US 819 (1998), citing Grandstaff v. City of Borger, 767 F2d 161, 171 (5^th Cir 1985), cert denied, 480 US 916 (1987). If police misconduct is clear, such as in instances of gross abuse of the use of deadly weapons, the policymakers' preexisting policy of indifference to such abuse or recklessness can be inferred from the policymakers' failure to discipline, reprimand or take other remedial action after the event. Id, 132 F3d at 520; Grandstaff, 767 F2d at 171.

Siwiec seeks to show the existence of a municipal policy of indifference by proving that the officers' treatment of him was ratified afterward by police policymakers. As proof, Siwiec points to the failure of defendants' superiors to reprimand or discipline them or to conduct a meaningful investigation into their conduct.

Cases recognizing post-event ratification have generally presented very clear instances of abuse and gross recklessness. In Grandstaff, for example, police officers shot and killed an innocent, unarmed bystander whom they mistook for a suspect they had been chasing. They did not attempt to identify the person or determine if he represented a threat; they simply opened fire with deadly weapons as he approached. Subsequently, city policymakers failed to take any disciplinary or remedial action. The court found this to be evidence of a policy to require immediate compliance with police demands, without regard for the rights of and risks to innocent third parties. The court found that the policymakers knew or should have known that such a policy approved the practice of shooting to kill without justification and permitted police officers to subject the public to deprivation of their constitutional rights. Grandstaff, 767 F2d at 170-71.

In Henry, the court found the municipal defendant's failure to correct "a blatantly unconstitutional course of treatment — stripping persons who have committed minor traffic infractions, throwing them naked into a "rubber room" and holding them there for ten hours or more for failing to sign a traffic ticket or asserting their legal right to be brought before a magistrate" — raised questions of fact whether the defendant had a policy which encouraged such misconduct. Henry, 132 F3d at 520.

On the facts presented here, even viewed in the light most favorable to Siwiec, this court cannot find the egregious circumstances required to follow Grandstaff and Henry. After receiving complaints by George, Spinden opened a Supervisor's Investigation, which then became an Internal Affairs Investigation. A team headed by Wilhelm reviewed a host of documents and tape-recorded witness interviews, and took personal interviews of Anderson, Cuthbertson, Thompson, Obenauf, and Steven Anderson. Other than determining that Obenauf's report contained a technical inaccuracy regarding the plastic container, Wilhelm's team found no evidence to support the charges made by George. Spinden concurred and the file was closed. Wilhelm Aff, ¶¶ 13-15.

This case does not involve gross abuse of the use of deadly weapons or a person subjected to humiliating personal circumstances (being stripped of clothing) and prolonged isolation on a minor traffic infraction. Unlike those scenarios, the situation here involves claims of a denial of medical treatment by Anderson and Thompson, unprofessional conduct by Anderson, and an unlawful search of Siwiec's belongings. All allegations were hotly disputed and every indication is that the charges were thoroughly and meticulously investigated.

Siwiec does not identify what "policy" Spinden was endorsing when he concurred that George's complaints should not be found "unfounded" or "not sustained." As discussed above, there is no evidence in the record sufficient to establish a pattern and practice of denying medical treatment to arrestees or committing the other constitutional violations Siwiec alleges. Similarly, there is no evidence here that Spinden was doing anything other than finalizing a single Internal Affairs Investigation when he concurred with Wilhelm's conclusions. Standing alone, this type of managerial action is insufficient to state a claim against a governmental body based on a ratification theory:

In Pembaur, the Supreme Court held that a single decision by a municipal policymaker might be sufficient to trigger section 1983 liability under Monell, even though the decision is not intended to govern future situations. There must, however, be evidence of a conscious, affirmative choice. Municipal liability attaches under section 1983 only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.

* * *

In Praprotnik, the Court considered whether a policymaker's deferential review of a subordinate's discretionary decision constituted a delegation of policy-making authority. The plurality concluded that there was no delegation and thus no basis for section 1983 liability, but observed that it would be a different case if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker or if a series of decisions by a subordinate official manifested a custom or usage of which the supervisor must have been aware.

* * *

Pembaur requires that an official policymaker make a deliberate choice from among various alternatives to follow a particular course of action. Likewise, Praprotnik requires that a policymaker approve a subordinate's decision and the basis for it before the policymaker will be deemed to have ratified the subordinate's discretionary decision.

Gillette v. Delmore, 979 F2d 1342, 1347-48 (9^th Cir 1992), cert denied, 510 US 932 (1993) (internal citations, quote marks, and emphasis omitted) (finding no ratification to support municipal liability in single decision by City Manager to not overrule a discretionary decision by the Fire Chief to discipline a fire fighter).

As in Gillette, the record here contains no evidence that Spinden "cast his decision [to find George's charges unfounded] in the form of a policy statement." Id at 1348. Instead, at most, Siwiec has shown that Spinden concurred in the decision of an Internal Affairs Investigation team regarding a series of complaints regarding a single police/citizen encounter. That is insufficient to proceed against Washington County on a ratification theory.

Accordingly, summary judgment is granted in favor of Washington County on the First through Fifth Claims.

E. Negligence Per Se (Sixth Claim)

The Sixth Claim alleges that defendants Anderson, Thompson and Harris were negligent per se by failing to provide or allow medical treatment of Siwiec in violation of ORS 430.399(1). That statute provides as follows:

Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent home or to a treatment facility by the police. However, if the person is incapacitated, the health of the person appears to be in immediate danger, or the police have reasonable cause to believe the person is dangerous to self or to any other person, the person shall be taken by the police to an appropriate treatment facility. A person shall be deemed incapacitated when in the opinion of the police officer or director of the treatment facility the person is unable to make a rational decision as to acceptance of assistance.

Had Siwiec been "incapacitated" or had his health "appear[ed] to be in immediate danger," then this statute required the police to take him to an "appropriate treatment facility." Siwiec claims that such an appropriate treatment facility was the hospital.

However, when read in context, this statute does not apply to the facts of this case. It is part of a statutory scheme designed to allow the treatment of a person found "in a public place" who is "intoxicated" or "under the influence of [drugs]." The term "treatment facility" in this statute has the same meaning given "other treatment facility" in ORS 430.306. ORS 430.399(6). "Other treatment facility" is defined by ORS 430.306(9) as including:

outpatient facilities, inpatient facilities and such other facilities as the [Department of Human Services] determines suitable, any of which may provide diagnosis and evaluation, medical care, detoxification, social services, or rehabilitation for alcoholics or drug-dependent persons and which operate in the form of a general hospital, a state hospital, a foster home, a hostel, a clinic or other suitable form approved by the department.

These facilities are designed to provide various services to alcoholics or drug-dependent persons. Siwiec does not claim to have needed such services. Instead he claims that he needed emergency medical care for his head and hand injuries.

Because the facts relied on by Siwiec do not support a violation of ORS 430.399, defendants are entitled to summary judgment on the Sixth Claim.

F. Intentional Infliction of Emotional Distress Claim (Seventh Claim)

The Seventh Claim alleges that all defendants intentionally inflicted emotional distress on Siwiec and/or negligently infringed on his legally protected interest. This claim arises from the treatment allegedly received by Siwiec while in defendants' custody.

1. Legal Stanard

A claim for intentional infliction of emotional distress ("IIED") requires a plaintiff to prove that: "(1) defendants intended to inflict severe emotional distress on plaintiffs; (2) defendant's acts were the cause of plaintiff's severe emotional distress; and (3) defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct." Robinson v. U.S. Bancorp, 2000 WL 435468, *5 (D Or April 20, 2000), citing McGanty v. Staudenraus, 321 Or 532, 543, 901 P2d 841, 849 (1995). It is the role of the court to determine as a matter of law whether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct. Harris v. Pameco Corp., 170 Or App 164, 171, 12 P3d 524, 529 (2000). "Conduct that is merely `rude, boorish, tyrannical, churlish and mean' does not satisfy that standard." Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or App 234, 239, 828 P2d 479, 481, review denied, 314 Or 176, 836 P2d 1345 (1992), quoting Patton v. J.C. Penney Co. Inc., 301 Or 117, 124, 719 P2d 854, 858 (1986), abrogated on other grounds by McGanty, 321 Or at 544, 901 P2d at 849. Similarly, "[l]ack of foresight, indifference to possible distress, even gross negligence is not enough to support this theory of recovery." Hall v. The May Dep't Stores Co., 292 Or 131, 135, 637 P2d 126, 129 (1981), abrogated on other grounds by McGanty, 321 Or at 544, 901 P2d at 849. Instead, [t]he tort requires some extraordinary transgression of the bounds of socially tolerable conduct." Id.

Oregon "cases suggest that conduct that is negligent, mistaken, or otherwise remiss rather than deliberate, intentional, or engaged in by design will not support a claim for IIED." Delaney v. Clifton, 180 Or App 119, 136, 41 P3d 1099, 1110, review denied, 334, Or 631, 54 P3d 1041 (2002) (citations omitted).

2. Analysis

George's affidavit provides no information about Siwiec's treatment while in custody. However, Siwiec states that he was "repeatedly berated, mocked, coerced and verbally abused" during the two hours he was in defendants' custody. Siwiec Aff, ¶ 22. As with his Fifth Claim alleging an illegal interrogation, most of the details concerning this claim is found in the allegations of the pleadings. For the reasons explained above, this court will assume the truth of those allegations, except insofar as they are challenged by sworn deposition testimony. An exhaustive review of those allegations reveals that defendants Anderson and Cuthbertson are entitled to summary judgment against Siwiec's IIED claim, but that the claims against Thompson, Harris, and Obenauf remain due to the lack of any challenge to Siwiec's allegations and affidavit.

The pleadings allege that Thompson and Harris "forecfully interrogate[d] and coerce[d] [Siwiec]" (Siwiec Amended Complaint, ¶ 23), and that Obenauf and Cuthbertson "earnestly and vigorously screamed and continued the coercion and threats perpetrated upon plaintiff by defendants Thompson, Harris, and Anderson," id, ¶ 31. Other than this single sentence, neither the pleadings nor any evidence submitted by Siwiec specify any other actions taken by Anderson. Refuting these allegations, both Anderson and Cuthbertson submitted affidavits stating that they had no direct contact with Siwiec at the East Precinct, but merely saw him interacting with other deputies. Anderson Aff, ¶ 11; Cuthbertson Aff, ¶ 8. Siwiec has submitted no affidavit testimony challenging these assertions. As a result, Anderson and Cuthbertson are entitled to summary judgment against Siwiec's IIED claim.

Unlike Anderson and Cuthbertson, the affidavits of the remaining defendants are silent as to their treatment of Siwiec while he was in custody. Siwiec alleges that he was seriously injured and alone in police custody and that Thompson sent away emergency workers at the scene (Siwiec Amended Complaint, ¶ 17), lied to a family friend of Siwiec ( id, ¶ 21), along with Harris, "forcefully interrogate[d] and coerce[d]" Siwiec ( id, ¶ 23), yelled at Siwiec and instructed him to say exactly what Thompson told him to say ( id, ¶ 26; George Amended Complaint, ¶ 15); that Obenauf and Cuthbertson "vigorously screamed and continued the coercion and threats" (George Amended Complaint, ¶ 31);³³ that Harris ripped a medical triage tag from Siwiec's arm ( id, ¶ 33); and that unidentified defendants yelled and screamed at Siwiec that he was not going anywhere until he admitted he was a criminal (George Amended Complaint, ¶ 33).

33 As just explained, this allegation against Cuthbertson fails due to the lack of evidence to counter Cuthbertson's assertion that he had no discussions with Siwiec.

Although Siwiec's affidavit is admittedly terse and conclusory, the allegations of the pleadings spell out behavior by Thompson, Harris, and Obenauf which a factfinder could conclude well exceeds the bounds of socially tolerable conduct by a police officer against an injured detainee. Given Siwiec's affidavit, as explained more fully in his pleadings, defendants Thompson, Harris, and Obenauf were required to do more than stand mute in order to be entitled to summary judgment. Accordingly, this court grants summary judgment only in favor of defendants Anderson and Cuthbertson on the IIED claims, and leaves for trial the IIED claim against Thompson, Harris, and Obenauf.

G. Negligence by Washington County (Eighth Claim)

Siwiec's Eighth Claim is brought under state law and alleges that Washington County was negligent in properly training or supervising its employees and in investigating the case and disciplining its employees.

In support of this claim, Siwiec asserts that there are "questions" regarding the extent and content of the training and regarding the hiring practices of Washington County and that multiple police officers lied in their official reports. However, other than the documents discussed above that Siwiec submitted in support of his contention that Washington County has a pattern and practice of disregarding the misdeeds of its officers, Siwiec has presented no evidence to support these assertions, nor has he presented any argument as to how those alleged failures resulted harm to him. For the same reasons that those documents are insufficient to show a pattern and practice to support a § 1983 claim against Washington County, they are likewise insufficient to proceed to trial on a claim of negligent training or supervision.

Siwiec's assertions regarding a negligent investigation fail for similar reasons. Again neither the pleadings nor the briefing on the present motions specify which "case" Washington County failed to properly investigate, but presumably it involves the complaints lodged in May of 2000 by George which eventually resulted in the Internal Affairs investigation headed by Wilhelm. Siwiec Complaint, ¶ 39; George Complaint, ¶ 45-48. The thrust of the negligence claim regarding the investigation is that Siwiec disagrees with the conclusions reached during an Internal Affairs investigation. Siwiec wholly fails to explain how this result harmed him.

Thus, Washington County is entitled to summary judgment against Siwiec's Eighth Claim.

H. Malicious Prosecution (Ninth Claim)

The Ninth Claim alleges that defendants Anderson, Thompson, and Harris participated in the malicious prosecution of Siwiec, resulting in deprivation of constitutionally protected liberty interest and/or due process in violation of his rights guaranteed by the Fourth and Fourteenth Amendments.³⁴

34 Although this claim is alleged against all defendants, Siwiec conceded at oral argument that this claim is directed only against defendants Anderson, Thompson, and Harris.

This claim arises from allegedly false statements made by these defendants in their police reports which led to Siwiec's prosecution for Unlawful Possession of a Schedule II Controlled Substance — Marijuana and for DUII. Those charges were dismissed at the District Attorney's request approximately a year after they were initiated. Later, by Order dated November 2, 2002, the court set aside the record of Siwiec's arrest for Unlawful Possession of a Firearm, Delivery of a Controlled Substance — Marijuana and Possession of a Controlled Substance — Marijuana pursuant to ORS 137.225. Dickerson Supp Aff, Exhibit 2.

In order to succeed on this claim, Siwiec must plead and prove that the defendant(s) prosecuted him "with malice and without probable cause, and that they did so for the purpose of denying h[im] equal protection or another specific constitutional right. Freeman v. City of Santa Ana, 68 F3d 1180, 1189 (9^th Cir 1995) (citation omitted). It is not clear what specific constitutional right Siwiec asserts that defendants intended to infringe by prosecuting him. Even if he satisfied that element of this claim, he must also prove: (1) that the prosecution was initiated without probable cause; and (2) that he was not guilty of the offense charged. Brown v. Selfridge, 224 US 189, 192 (1912) (in an action for malicious prosecution, "the burden of proving malice and the want of probable cause is upon the plaintiff"); Shoemaker v. Selnes, 220 Or 573, 578, 349 P2d 473, 476 (1960). However, the record is devoid of evidence that the charges initiated against him (DUII and Possession of a Controlled Substance — Marijuana) were not supported by probable cause and that he was innocent of those charges.

As discussed above, Thompson had ample probable cause to arrest him for DUII, based on Siwiec's statement that he had consumed alcohol prior to the accident and based on Thompson's observations of Siwiec at the scene. The prosecution for DUII was further supported by the subsequent breathalyzer test results and the corroborating testimony of the paramedic. Siwiec challenges the accuracy of the breathalyzer test results, arguing that they were undertaken while he was still bleeding in the mouth. However, even without those results, the record reflects ample evidence of probable cause to support the DUII charge.

Similarly, there was ample evidence to establish probable cause to support prosecution of the drug charge. Siwiec argues that the discovery of the marijuana was the result of an unlawful search. While that argument may have provided a basis for excluding the marijuana as evidence in the criminal prosecution, it does not establish a lack of probable cause for the prosecution of that charge. The fact that Siwiec's arrest record on this charge was later set aside also does not affect the existence of probable cause at the time the criminal charges were initiated. Moreover, Siwiec admitted that he had the marijuana in his vehicle, testifying that he and Kraft had previously obtained it for use on a fishing trip. Siwiec Depo, pp. 65-67. Thus, Siwiec cannot meet his burden of establishing that he was innocent of the offense charged.

Accordingly, defendants are entitled to summary judgment against the Ninth Claim for malicious prosecution.

II. Motions Against George's Claims

For the reasons discussed below, this court concludes that only George's Fifth Claim against Anderson survives summary judgment.

A. Qualified Immunity Defense to § 1983 Claims

As in response to Siwiec's § 1983 claims, the individual defendants also rely on the qualified immunity defense to George's § 1983 claims. Therefore, this court must first determine if defendants violated any constitutional right and, if so, whether that right was clearly established. As explained below, defendants did not violate any of George's constitutional rights. 1. First Amendment (First Claim)

The First Claim alleges that defendants Anderson, Obenauf, Thompson, and Wilhelm denied George's First Amendment right to petition for redress of grievances and her right to prosecute criminal complaints without unreasonable interference from agents of the government.

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition the government for redress of grievances. . . . The government is prohibited from infringing upon these guarantees either by a general prohibition against certain forms of advocacy, or by imposing sanctions for the expression of particular views it opposes.

Smith v. Arkansas State Highway Emp., Local 1315, 441 US 463, 464 (1979) (internal citations omitted).

However, "the First Amendment does not guarantee that citizens' speech will be heard," DeGrassi v. City of Glendora, 207 F3d 636, 647 (9^th Cir 2000); see also Smith, 441 US at 465 (the First Amendment imposes no affirmative obligation on the government to listen or respond to the petitions raised by individual citizens).

In her affidavit, George explains that she "attempted to initiate a criminal investigation," but that Wilhelm refused to review the evidence she presented and "continually attempted to discredit" her. George Aff, ¶¶ 8, 14; George Amended Complaint, ¶¶ 46, 50. Although not supported by any affidavit, George's pleadings allege that the Supervisor's Investigation revealed that "several deputies had lied and created false reports" (George Amended Complaint, ¶ 45), that Wilhelm only contacted her "reluctantly and antagonistically" ( id, ¶ 48), that the Supervisor's Investigation revealed that deputies had lied in order to make a case against her son ( id, ¶ 47), but that Wilhelm disagreed with the Supervisor's Investigation despite any reasonable explanation to account for the conflicting findings between the Supervisor's Investigation and the Internal Affairs Investigation ( id, ¶ 54), and that Spinden never removed Wilhelm from the Internal Affairs Investigation despite her complaints that he was not willing to fairly conduct that investigation ( id, ¶ 57).

The difficulty with George's argument is that she fails to identify any action taken by any of the defendants that interfered with her right to petition the government. The gist of this claim is that her urging that a criminal complaint should be initiated against the individual defendants went unheeded. However, none of the present defendants is responsible for initiating such an action. In Oregon, district attorneys in each county have the authority to prosecute a person for committing crimes under Oregon law. ORS 8.665 ("Upon the issuance of a citation by any person authorized to issue citations for violations, a district attorney shall prosecute the case if it appears that a violation has occurred"); ORS 135.165 (district attorney entitled to appear on behalf of the state at preliminary hearings and control and direct the prosecution); ORS 180.070(4) (referencing duties of district attorneys to "prosecute criminal violations of law and advise the officers of the counties composing their districts"); see also Dunwoody v. Handskill Corp., 185 Or App 605, 616-17, 60 P3d 1135, 1142 (2003) (describing authority of district attorneys to compel citizens to appear at grand jury proceedings and trials). If George wished to pursue a criminal prosecution against any of the individual defendants for filing false reports, she could have contacted the local district attorney.

The record is undisputed that Wilhelm's role with respect to George's complaints was to lead the Internal Affairs Investigation, which as its name connotes, is "internal" and designed to ferret out misconduct by — and as necessary recommend discipline of — police officers. This role, as a first-responder to a complaint by a member of the public, does not transmogrify Wilhelm's role into that of a district attorney. George remained free to contact the local district attorney. In short, the mere fact that Wilhelm or any of the other defendants "refused" to initiate a criminal complaint raises no First Amendment concerns.

The only other allegation made by George with respect to the First Claim is that Obenauf intentionally gave false and inaccurate information to the Internal Affairs Investigation team, and that a reasonable juror could conclude that those falsities were designed to interfere with her right to seek redress. The only "false" information identified to support this claim is the technical inaccuracy in his report regarding the plastic container found at the scene of the accident. Wilhelm Aff, ¶ 13-15. Even assuming this was a deliberate falsity, George has failed to identify how such a falsity impeded her ability to seek to prosecute a criminal complaint had she chosen to do so.

Because George has failed to identify any interference with her First Amendment right to petition the government, defendants Anderson, Obenauf, Thompson, and Wilhelm are entitled to summary judgment against the First Claim.

2. Due Process (Second and Fourth Claims)

The Second Claim alleges that defendants Anderson, Obenauf, Thompson, and Wilhelm violated George's Fourteenth Amendment right to due process. Although defendants approach the Second Claim as alleging a procedural due process violation based on Washington County's method of conducting the Internal Affairs Investigation, George responds that the Second Claim is aimed at defendants' interference with her liberty interest in the companionship and society of her son, Siwiec. The Fourth Claim is premised upon the identical assertion, and alleges that defendants violated George's Fourteenth Amendment right and liberty interest in her child by failing to release Siwiec to George's custody in order to provide him with medical assistance. Nothing in the record identifies any difference between the Second Claim and the Fourth Claim, and both appear to be aimed at the same alleged constitutional issue. Accordingly, this court considers them together.

A parent has a fundamental liberty interest in the companionship and society of his or her child and the state's interference with that liberty interest without due process of law is remediable under § 1983. Lee v. City of Los Angeles, 250 F3d 668, 685 (9^th Cir 2001). In Lee, the plaintiff alleged that her mentally incapacitated son was arrested on the fugitive warrant of another individual and that the police officers who arrested him knew or should have known that her son was not the fugitive based on his obvious mental incapacity and lack of a match between his fingerprints and other identifying characteristics. After his arrest, her son was extradited to New York and kept incarcerated for two years. In response to her repeated inquiries about her son, the police department stated it had no information about and no record of her son. The Ninth Circuit found these allegations sufficient to survive a motion to dismiss. Id.

In contrast to Lee, this case involves George's son, a competent adult, arrested on probable cause and released from custody within three hours. Defendants did not attempt to or succeed in keeping George in the dark about the fact of Siwiec's arrest. To the contrary, according to the pleadings, Thompson contacted George within seven minutes of Siwiec's arrest and told her Siwiec would be released after being cited with DUII. See Siwiec Amended Complaint, ¶¶ 18, 20; George Amended Complaint, ¶ 11. Siwiec's arrest was supported by probable cause and Siwiec was back home by "daybreak." George Amended Complaint, ¶ 44. George has failed to allege or prove any other unusual circumstances akin to those in Lee or other cases³⁵ which might support a claim for a violation of George's protected liberty interests. In short, nothing in the record supports the conclusion that defendants' temporary and lawful interference with George's liberty interest in the companionship and society of her son violated a constitutional guarantee. Accordingly, defendants Anderson, Obenauf, Thompson, and Wilhelm are entitled to summary judgment against George's Second and Fourth Claims.

35 Claims alleging interference with liberty interests in companionship and society by children may arise in situations involving the death of a child or the termination of parental rights in a child. See, e.g., Woodrum v. Woodward County, 866 F2d 1121, 1125-26 (9^th Cir 1989) (termination of parental rights); Kelson v. Springfield, 767 F2d 651, 654-55 (9^th Cir 1984) (suicide by minor child while at school); Smoot v. Placentia, 950 F Supp 282, 283-84 (CD Cal 1997) (adult child fatally shot during drug arrest).

3. Retaliation and Gender Discrimination (Third Claim)

The Third Claim alleges that defendants Anderson, Obenauf, Thompson, and Wilhelm retaliated against George for complaining about matters of public concern in violation of her First Amendment rights and discriminated against her on the basis of her gender in violation of her Fourteenth Amendment rights. Although alleged against all defendants, this claim appears to be directed at Anderson's alleged treatment of George after her statements to him that Siwiec needed medical attention. Specifically, George alleges that Anderson physically seized her, made derogatory gender-based remarks (women are "evil" and "overreact"), interfered with her attempts to contact other supervisory Sheriff's office personnel, and then summarily removed her from the East Precinct.

This claim presents a novel theory which attempts to draw on a line of cases dealing with retaliation against public employees for their exercise of protected speech on matters of "public concern." See Connick v. Myers, 461 US 138 (1983). In that context, a First Amendment retaliation claim under § 1983 requires a showing that the plaintiff: (1) engaged in expressive conduct that addressed a matter of public concern; (2) the government officials took an adverse action against him or her; and (3) the expressive conduct was a substantial or motivating factor for the adverse action. Alpha Energy Savers, Inc. v. Hansen, 381 F3d 917, 923 (9^th Cir 2004) (citations omitted).

Putting aside for a moment that this line of cases deals with the free speech rights of public employees, George has failed to identify any speech that involved a matter of "public concern." "The inquiry into the protected status of speech is one of law, not fact." Connick, 461 US at 148 n 7. "Whether . . . speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id at 147-48. In this case, the statements for which George was allegedly retaliated against did not involve a matter of public concern. The gist of the statements were that George believed that Siwiec needed medical treatment and that defendants were remiss in failing to provide it. While her speech was directed at public employees, it involved a purely personal issue, namely the need to provide medical treatment to Siwiec. By failing to satisfy the first requirement of this type of claim, George has failed to establish that defendants violated the First Amendment. Moreover, as George readily concedes, no case has clearly established that such conduct violates the First Amendment. Thus, defendants are entitled to summary judgment based on qualified immunity against George's Third Claim for violation of the First Amendment.

George's claim for discrimination on the basis of her gender in violation of her Fourteenth Amendment rights also suffers from fatal flaws. Although defendants made gender-based remarks, George has presented no evidence that defendants treated her any differently than men in similar circumstances by removing her from the East Precinct. And even if this court concluded that derogatory gender-based remarks alone constitute sufficient evidence of gender discrimination, George has pointed to no case clearly establishing that such remarks by police constitute a violation of the Fourteenth Amendment. Accordingly, defendants are entitled to summary judgment based on qualified immunity against George's Third Claim for violation of the Fourteenth Amendment.

B. § 1983 Claims Against Washington County

George also sues Washington County on her first four claims under § 1983. George Amended Complaint, ¶¶ 61-62. Because none of those claims results in liability for the acts of any individual defendant, Washington County is entitled to summary judgment against the First, Second, Third, and Fourth Claims as well. C. IIED (Fifth Claim)

George alleges a Fifth Claim against defendants Anderson, Obenauf, Thompson, Wilhelm, and Washington County for intentional infliction of emotional distress.³⁶ 1. Supplemental Jurisdiction

36 The pleadings also make a veiled reference to a possible claim for negligent infliction of emotional distress based on either the infringement of a legally protected interest or a physical harm to George. George Amended Complaint, ¶ 80 (alleging that defendants "negligently infringed on a legally protected interest of the plaintiff causing both emotional and physical harm to plaintiff."); see Simons v. Beard, 188 Or App 370, 375-76, 72 P3d 96, 99-100 (2003) (discussing physical impact rule) and Lockett v. Hill, 182 Or App 377, 380, 51 P3d 5, 7 (2002) (discussing liability based on infringement of a legally protected interest). However, both the portions of the pleadings and of Plaintiff's Memorandum in Support of Plaintiff's Response to Defendants' Motion for Summary Judgment which discuss the Fifth Claim are entitled "Intentional Infliction of Emotional Distress," and nothing else in George's response indicates that the Fifth Claim encompasses anything other than a claim for intentional infliction of emotional distress. Thus, this court construes the Fifth Claim as being limited to a claim for intentional, rather than negligent, infliction of emotional distress.

When "the district court has dismissed all claims over which it has original jurisdiction," it has discretion to "decline to exercise" supplemental jurisdiction. 28 USC § 1367(c)(3); Brady v. Brown, 51 F3d 810, 815-16 (9^th Cir 1995). This court exercises its discretion to accept supplemental jurisdiction over the IIED claim.

George's claims arose on or about April 9, 2000, and this case has been pending in this court since April 8, 2002. George urges this court to decline to exercise jurisdiction over her IIED claim so that she may refile her IIED claim in state court. However, considerable judicial resources have already been expended in resolving George's claims in this court, which was the forum she initially chose. This court clearly has jurisdiction over the IIED claim as that claim is sufficiently related to the claims over which this court has original jurisdiction as to form part of the same case or controversy. Discovery closed on May 28, 2004, after several extensions of that deadline by both sides. The IIED claim, while exclusively a state law claim, raises no novel or complex state law issues, and George has not identified any unusual or compelling circumstances which would merit this court declining to exercise jurisdiction.

2. Merits

As with Siwiec's IIED claim, George's IIED claim is premised upon allegations that are largely unsupported by any affidavit or deposition testimony. Thus, where the allegations of the complaint supplement affidavit testimony, this court again will consider those allegations except where they are challenged by sworn affidavit testimony. So considered, a review of the record reveals sufficient evidence to support George's IIED claim only against Anderson.

George avers that when she arrived at the scene of the accident, Obenauf "grabbed her by the arms, shook [her] and ordered [her] to proceed to East Precinct." George Aff, ¶ 6. Her pleadings imply that Obenauf may have been involved in "screaming and yelling" at Siwiec (George Amended Complaint, ¶ 32-33), but there is no evidence that Obenauf was aware of George's presence, much less that he intended to inflict severe emotional distress on her. Obenauf has no recollection of seeing George at the accident scene or at the East Precinct or of touching her at all. Obenauf Aff, ¶¶ 11-12. Because George has failed to submit evidence of Obenauf's intent to cause her the alleged distress and conduct which is sufficiently outside the bounds of socially tolerable conduct, her IIED claim against him fails.

George's claim against Thompson fails for similar reasons. The only information in George's affidavit regarding Thompson is that he telephoned her and told her Siwiec was injured, needed medical attention, and had been sent to wash up because he did not want him "bleeding out all over the station." George Aff, ¶ 4. Her pleadings allege that only after detaining her in the hallway, and interrogating and coercing her would Thompson let her see Siwiec. George Amended Complaint, ¶ 15.³⁷ Thompson then screamed at Siwiec, ordering Siwiec to "stand up and repeat to [George] each statement Thompson ordered him to say." Id. Thompson refused her requests to immediately release Siwiec and refused to explain his actions to her. Id, ¶ 17. In response to her request to use a telephone, he directed her to a telephone down the hallway, and their contact apparently ended when Anderson showed up and ordered George out of the East Precinct.

37 Nothing in the record reveals the nature of this alleged interrogation or coercion.

Thompson and George clearly disagreed over whether Siwiec should be released to her in order to seek medical attention. The merits of that dispute will be resolved in the context of Siwiec's claim for failure to provide constitutionally adequate medical care. However, such a dispute, even one that results in the type of heated exchange George alleges, simply is not sufficiently outside the bounds of socially tolerable conduct to support a claim for IIED. Thus, Thompson is entitled to summary judgment against George's claim for IIED.

As noted above, George alleges that Wilhelm ignored her repeated requests to initiate a criminal investigation, contacted her only reluctantly and antagonistically, and disagreed with George about her allegations. He also allegedly twice raised his voice at George and falsely stated in one of his reports that George had "refused to cooperate with him, based on advice of counsel." George Amended Complaint, ¶¶ 50, 56. Wilhelm has countered these allegations with his own affidavit explaining the actions he took to review George's complaints. While George's allegations, if believed by a factfinder, would cast a dim light on Wilhelm's handling of the investigation into her complaints, they do not describe conduct sufficiently outside the bounds of socially tolerable conduct to support an IIED claim. Thus, Wilhelm is entitled to summary judgment against George's IIED claim.

This leaves only Anderson. George alleges that while at the East Precinct, Anderson "grabbed [her] by the collar and physically pushed [her] by doing so" then made "degrading comments" and told her she was overreacting" about Siwiec's need for medical attention while "laughing out loud in obvious perverse enjoyment of the power and authority he delighted in using." George Aff, ¶¶ 9-10. George alleges that Anderson entered the East Precinct and immediately ordered her to stop using the telephone, "physically cornered" her, falsely told her that Steve Anderson was an "undercover" law enforcement officer who could not say his name for safety reasons, "verbally and physically" intimidated her, then, ordered her out of the East Precinct calling her an "evil woman" with "evil woman looks" who was overreacting to Siwiec's condition the "way women do." George Amended Complaint, ¶¶ 19-26. Anderson allegedly directed sexist comments at George, joked about her son's medical condition, and otherwise humiliated, intimidated, and assaulted George. Id, ¶¶ 27, 36-40. Anderson's affidavit does not expressly deny any of these allegations.

This court concludes that Anderson's conduct, as alleged by George and not refuted by Anderson, is sufficient to establish an extraordinary transgression of the bounds of socially tolerable conduct. Accordingly, all defendants except Anderson are entitled to summary judgment against George's Fifth Claim.

ORDER

Based on the foregoing, IT IS ORDERED that:

1. Defendants' Motion for Summary Judgment (docket #32, Case No. 02-454) is DENIED against plaintiff David Siwiec's:

a. First Claim (Denial of Medical Treatment) against defendants Thompson, Anderson, and Harris;

b. Second Claim (Excessive Force) against defendant Thompson under the Fourth Amendment; and

c. Seventh Claim (Intentional Infliction of Emotional Distress) against defendants Thompson, Harris, and Obenauf,

and is otherwise GRANTED.

2. Defendants' Motion for Summary Judgment (docket #31, Case No. 02-460) is DENIED against plaintiff Trish George's Fifth Claim (Intentional Infliction of Emotional Distress) against defendant Anderson, and is otherwise GRANTED.

As a result:

1. Plaintiff David Siwiec's case will be set for a jury trial on the First Claim against defendants Thompson, Anderson, and Harris; the Second Claim against defendant Thompson under the Fourth Amendment; and the Seventh Claim against defendants Thompson, Harris, and Obenauf only; and

2. Plaintiff Trish George's case will be set for a jury trial on the Fifth Claim against defendant Anderson.

Accordingly, defendant James Cuthbertson is dismissed as a party to plaintiff David Siwiec's case; defendants Thompson, Obenauf, and Wilhelm are dismissed as parties to plaintiff Trish George's case; and defendant Washington County is dismissed as a party to both cases.