Brewer v. City of Medford et al
Filing
55
ORDER: For the reasons stated above, the Defendants' first partial motion for summary judgment 26 is GRANTED. Defendants' second partial motion for summary judgment 39 is GRANTED as to Brewer's claim regarding his deceased dog and DENIED as to his marijuana-related claims. Signed on 07/01/2014 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
JOSHUA RYAN BREWER,
Case No. 13-cv-00541-CL
Plaintiff;
ORDER
v.
CITY OF MEDFORD, MEDFORD POLICE
DEPARTMENT, MAYOR GARY
WHEELER, OFFICER IAN MCDONALD,
SGT. BEN LYTLE, LT. BRETT JOHNSON,
CHIEF OF POLICE RANDY SCHOEN,
DEPUTY CHIEF TIM DONEY, and CHIEF
TIM GEORGE;
Defendants.
CLARKE, Magistrate Judge.
Plaintiff Joshua Brewer ("Brewer") brings this action against the City of Medford (the
"City), the Medford Police Department (the "Department"), Mayor Gary Wheeler ("Wheeler"),
Officer Ian McDonald ("McDonald"), Sergeant Ben Lytle ("Lytle"), Lieutenant Brett Johnson
("Johnson"), Chief Randy Schoen ("Schoen"), Deputy Chief Tim Doney ("Doney") and Chief
Tim George ("George) (collectively, the "Defendants"). Brewer alleges Defendants conspired to
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violate his civil rights; initiated a malicious prosecution against him; and conducted an unlawful
search, seizure, and arrest. Brewer raises claims of supervisor and government liability under 42
U.S.C. § 1983. He further alleges the following pendant state claims: malicious prosecution;
unlawful search, seizure, and arrest; and intentional infliction of emotional distress (liED).
Currently before the court are Defendants' two partial motions for summary judgment.
The parties executed written consent to entry of judgment by a United States Magistrate Judge
(#54). For the reasons stated below, Defendants' first motion (#26) is GRANTED and
Defendants' second motion (#39) is GRANTED in part and DENIED in part.
PRELIMINARY MATTER
The court addresses the following issue before reaching the merits of Defendants'
motions.
I.
Defendants' Motion to Strike
Brewer offers a report drafted by Carl Worden, identified as an "investigator," in
opposition to Defendants' second motion for summary judgment.
(Glass Decl. Ex. 3).
Defendants move to strike the report in its entirety, contending it is inadmissible hearsay.
It is well settled that a trial court can consider only admissible evidence when ruling on a
motion for summary judgment. Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181
(9th Cir. 1988). Authentication is a condition precedent to admissibility. Id. at 1182 (citing Fed.
R. Evid. 901(a)).
To properly authenticate a piece of evidence, its proponent must lay a
foundation to support a finding that the document is what the proponent claims it to be. Id.
Brewer has not laid an adequate foundation for the Worden report. The report purports to
be a "Timeline of Events and Identity of Most of the Individuals Responsible for the False
Arrest, False Imprisonment and Wrongful Conviction of Joshua Brewer." (Glass Decl. Ex. 3, at
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2). It consists of eight typed pages with the name "Carl F. Worden" typed at the bottom of the
final page. (Glass Decl. Ex. 3, at 9). Brewer introduces the report through the declaration of his
counsel, who calls it a "true copy of Investigator Carl Worden's report." (Glass Decl., at 2).
However, as the Ninth Circuit made clear in United States v. Dibble, 429 F.2d 598, 602 (9th Cir.
1970):
A writing is not authenticated simply by attaching it to an affidavit, even if
the writing appears on its face to have originated from some governmental
agency and the affiant is a government official. The foundation is laid for
receiving a document in evidence by the testimony of a witness with
personal knowledge of the facts who attests to the identity and due
execution of the document and, where appropriate, its delivery.
The report and declaration clearly do not meet this standard.
Even if the report had been properly authenticated, the court could not consider it. The
report is hearsay: an out-of-court statement offered for the truth of the matter asserted. Fed. R.
Evid. 801(c). "[H]earsay is inadmissible unless it is defined as non-hearsay under Federal Rule
of Evidence 801(d) or falls within a hearsay exception under Rules 803, 804 or 807." Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002). Brewer has not attempted to
establish that the report falls under any of these Rules' protection. For these reasons, the court
will not consider Worden's report when ruling on Defendants' motions.
BACKGROUND
No admissible evidence has been presented to dispute the following facts.
In the early morning of September 27, 2009, police responded to reports of gunfire near
Brewer's residence. (Glass Decl. Ex. 4, at 8). Two days prior, police had served a search
warrant on the home and arrested Brewer's cousin and roommate, Dustin Freeman ("Freeman").
(Glass Decl. Ex. 4, at 13-14, 17; Glass Decl. Ex. 2, at 6). Consequently, they knew Brewer
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resided there and that marijuana was grown therein. (Glass Decl. Ex. 4, at 12-14, 22). Brewer
consented to the officers' request to search the home. (Glass Decl. Ex. 4, at 23-24).
Brewer and Freeman were both registered medical marijuana users. (Glass Decl. Ex. 2,
at 6; Second Mitton Decl. Ex. 2). Freeman had a permit to grow marijuana at the residence for
both himself and Brewer. (Glass Decl. Ex. 2, at 6; Second Mitton Decl. Ex. 2). Together, the
two could legally possess up to 48 ounces of "usable marijuana" -
defined as dried leaves and
flowers; not seeds, stalks or roots. (Glass Decl. Ex. 2, at 5-6). Officers removed 41.9 ounces of
"useable marijuana" from the home -
6.1 ounces less than the permissible limit under the
Oregon Medical Marijuana Act ("OMMA") -and 42.65 ounces of marijuana which officers did
not classify as useable or non-useable. (Glass Decl. Ex. 2, at 6). Officers also seized a revolver.
(Glass Decl. Ex. 4, at 39).
Officers arrested Brewer. (Second Lytle Decl., at 1). There were four dogs present in the
home at the time of Brewer's arrest. (Second Lytle Decl., at 1). The officers transported the
dogs to Jackson County for safekeeping while Brewer was in custody. (Second Lytle Decl., at
2). While there, one of the dogs was euthanized. (Second Lytle Decl., at 2).
Brewer was charged with five crimes: three related to the gunfire and two related to the
marijuana. (Mitton Decl. Ex. 1, at 1). On May 3, 2010, Sgt. Lytle sent Brewer a letter to
document a phone conversation they had earlier that day. (Lytle Decl. Ex. 1). In it, Lytle forbid
Brewer from contacting any other City officials regarding his arrest and advised him that he
could be arrested and face additional criminal charges if he did not comply. (Lytle Decl. Ex. 1).
Around the same time, Lt. Johnson left a voice message for Brewer, instructing him to direct all
communications with the City through Lytle or himself. (Johnson Decl.
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~
2).
On June 2, 2010, the three gunfire charges were dismissed. (Mitton Decl. Ex. 1, at 1).
On October 4, 2010, Brewer was convicted of unlawful possession and manufacture of
marijuana. (Mitton Decl. Ex. 1 at 1). At the trial, Brewer's counsel offered three OMMA
registration cards associated with Brewer's address as exhibits. (Second Mitton Decl.
~
5;
Second Mitton Decl. Ex. 2). On March 28, 2012, the Oregon Court of Appeals overturned
Brewer's conviction for failure to prove Brewer had an illegal quantity of drugs under the
OMMA. (Glass Decl. Ex. 1).
STANDARD
Summary judgment is appropriate if "the movant shows there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56( a). Summary judgment is not proper if material factual issues exist for trial. Warren v. City
of Carlsbad, 58 F.3d 439,441 (9th Cir. 1995).
The moving party bears the initial burden of establishing the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263
F.3d 1070, 1076 (9th Cir. 2001). An issue of fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the moving party fulfills its burden, the burden shifts to the
non-moving party who must go beyond the pleadings to identify genuine issues of fact. Celotex
Corp., 477 U.S. at 324. Conclusory allegations, unsupported by factual material, are insufficient
to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Instead, the opposing party must, by affidavit or as otherwise provided by Fed. R. Civ. P. 56,
designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at
1076.
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The court must view the evidence in the light most favorable to the nonmoving party.
Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011). All reasonable doubt as to the
existence of a genuine dispute of material fact should be resolved against the moving party.
Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be
drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638
F.2d 136, 140 (9th Cir. 1981). However, facts must be "viewed in the light most favorable to the
nonmoving party only ifthere is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S.
372, 380 (2007). "Where the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no 'genuine issue for trial."' Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
I.
Defendants' First Motion for Partial Summary Judgment
A. Statute of Limitations
Brewer's § 1983 claims are governed by Oregon's two-year personal injury statute of
limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007); Or. Rev. Stat. § 12.110(1). His pendant
state law claims are similarly limited to a two year window.
Or. Rev. Stat. § 12.110(1);
Brackhahn v. Nordling, 269 Or. 667, 669 (1974) ("[t]he statute of limitations for both false arrest
and malicious prosecution is two years."); Evans v. Salem Hosp., 83 Or. App. 23, 27 (1986)
(discussing two year statute of limitations for emotional distress claims).
Defendants argue, and Brewer concedes, that all claims based on the firearms charges are
not timely. Regardless of whether the claims run from Brewer's arrest in 2009 or their dismissal
in 2010, the two year window had closed by the time Brewer filed this case in 2013. Similarly,
Brewer's claims related to his post-arrest communications with the City are time-barred. The
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events relevant to the claims- the May 2010 letter and associated voice message- occurred
more than two years before this suit was filed. In addjtion, as concede by Brewer, all allegedly
offensive actions giving rise to the liED claim occurred outside of the statute of limitations. The
most recent event -
Brewer's 201 0 conviction -
occurred more than two years prior to
Brewer's filing ofthis action. Accordingly, the court grants Defendants' motion from summary
judgment on the claims arising out of the firearms search, seizure, and arrest; Brewer's claims
related to restrictions on his communications; and Brewer's liED claim. Despite these claims'
dismissal, the parties may proceed with discovery of their factual bases to the extent they relate
to Brewer's remaining claims.
B. Claim for Return of Revolver
On May 25, 2006, Brewer was convicted of the fourth-degree assault ofNancy Brewer, a
Class A misdemeanor labeled with the suffix "DV" to indicate domestic violence. (Mitton Decl.
Ex. 2). On the basis of this conviction, Defendants move against Brewer's claim for the return of
his Taurus revolver or the value thereof. Defendants argue Brewer has no legal claim to the
revolver because federal law prohibits anyone convicted of a domestic violence misdemeanor
from possessing a firearm that "has been shipped or transported in interstate or foreign
commerce." 18 U.S.C. § 922(g)(9).
Brewer presents no evidence to dispute Defendants' assertion that it would be illegal for
him to possess the revolver. Accordingly, in the absence of any genuine factual issue, the court
grants Defendants' motion for summary judgment on Brewer's claim to the gun.
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II.
Defendants' Second Motion for Partial Summary Judgment
A. Marijuana Claims
On February 4, 2014, this court sanctioned (#31) Brewer for failing to comply with a
court order (#22, #23) to reply to Defendants' interrogatories. The sanction prohibited Brewer
from calling witnesses or providing testimony "relating to the interrogatories which he has failed
to answer." One such interrogatory asked Brewer to:
Name all people whose OMMA cards were used for purposes of growing
marijuana at the house in question at any time from January 1, 2009 to
September 27, 2009. Include the name, phone number, and current address
of each such individual, as well as the type of card (i.e., patient or
caregiver).
Defendants assert this sanction bars Brewer from presenting evidence that any of the
marijuana seized from his horne was legally grown in compliance with the OMMA.
Accordingly, Defendants argue Brewer cannot dispute whether they had probable cause to take
action against him and thus cannot move forward with his marijuana-related claims.
Brewer responds that this result is unduly harsh.
We agree.
Regardless of the
interrogatories, both parties have access to the three OMMA cards submitted as exhibits in
Brewer's criminal trial. At the summary judgment motion hearing (#53), Defendants conceded
they would not be prejudiced by the introduction of these cards. As such, we clarify that the
sanction (#31) does not preclude Brewer from presenting evidence related to the OMMA cards
previously introduced at his criminal trial.
Even with the three cards, Defendants argue Brewer cannot establish the legality of the
marijuana grow. Taken alone, Brewer's OMMA card is insufficient to justify the quantity of
marijuana found in the horne. Defendants assert Brewer cannot rely on the other two OMMA
cards associated with the residence because they were issued in Freeman's name and Freeman
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was already in police custody at the time of Brewer's arrest.
Because "Freeman was not a
resident" of the home on the night in question but rather a resident of the jail, Defendants argue
Brewer cannot invoke Freeman's cards. (Def.s' Reply in Supp. of Second Mot. for Summ. J., at
3).
Defendants offer no evidence to suggest Freeman's OMMA cards or the grow site's
registration were invalid on the date of Brewer's arrest. They do not cite any OMMA provisions
requiring a cardholder to be present or reside at a grow site. Nor do they present any legal
authority for the proposition that a detained person's residence is his jail cell rather than his
home. Contra Cohen v. U.S., 297 F.2d 760, 774 (9th Cir. 1962) ("One does not change his
residence to the prison by virtue of being incarcerated there.").
Accordingly, the fact that
Freeman was not present at the home on the night in question does not dispel the parties' dispute
as to whether Defendants had probable cause to arrest and prosecute Brewer for the marijuana
charges. Genuine issues of material fact remain.
B. Claim Related to Brewer's Deceased Dog
Defendants argue they are not the proper parties to Brewer's claim regarding his
deceased dog because they had no involvement in Jackson County's decision to euthanize the
animal. In support of this contention, Defendants provide a declaration signed by Sgt. Lytle
stating that he and the other officers transported the dogs to Jackson County for safekeeping
because they "could not leave the dogs unattended at the house," and that Jackson County acted
independently when it put one of the dogs down. (Second Lytle Decl.).
In response, Brewer argues there is a genuine issue of material fact as to whether
Defendants should have transported the dog to Jackson County in the first place and thus
whether Defendants were a but-for cause of the animal's death. Brewer speculates that Brewer's
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wife could have cared for the animals. However, Brewer fails to offer any factual support, as
required by Fed. R. Civ. P. 56, to show the wife was able to do so or to demonstrate the officers
were aware she would look after the dogs in Brewer's absence. Brewer cannot rest upon these
conclusory allegations to withstand Defendants' motion for summary judgment. See Devereaux,
263 F.3d at 1076. Defendants established the absence of a triable issue of fact- providing
evidence they acted to ensure the animals received care while Brewer was away and had no
involvement in the dog's subsequent death -
and Brewer has not produced any evidence in
opposition. Therefore, summary judgment is appropriate.
ORDER
For the reasons stated above, the Defendants' first partial motion for summary judgment
(#26) is GRANTED.
Defendants' second partial motion for summary judgment (#39) is
GRANTED as to Brewer's claim regarding his deceased dog and DENIED as to his marijuanarelated claims.
United States Magistrate Judge
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