Nemeth v Ellena, et al

Filing 94

Opinion and Order. Defendants' motions for summary judgment 71 and 73 are GRANTED and this case is DISMISSED. Please access entire text by document number hyperlink. Ordered and Signed on 05/18/2015 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANTHONY ROBERT NEMETH,

Case No. 1: 13-cv-0 I 089-CL
OPINION AND ORDER

PlaintifT,
V.

WILLIAM ELLENA, Oregon State
Trouper; CHRISP. BROWN, Oregon
State Police Superintendent; TIM
EVINGER, Klamath County Sheriff;
BRIAN BRYSON, Klamath County
Deputy; and KLAMATH COUNTY,
a political subdivision of the State of
Oregon,
Defendants.
M. Christian Bottoms
Law Office ofM. Christian Bottoms
P.O. Box 86188
Portland, Oregon 97286
Attorney for plaintiff
Ellen F. Rosenblum
Andrew D. Campbell
Kenneth C. Crowley
Oregon Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301
Attorneys for defendants William Ellena and Chris Brown
Thomas F. Armosino
Adam Zedikiah Daheim
Frohnmayer Deatherage, et al.
2592 E. Barnett Road
Medford, Oregon 97501
Attorneys for defendants Brian Bryson, Tim Evinger, and Klamath County

Page I -OPINION AND ORDER

CLARKE, Magistrate Judge:
Anthony Nemeth ("plaintiff'') filed this action against William Ellena, Chris P. Brown,
Brian Bryson, Tim Evinger, and Klamath County (collectively "defendants"), alleging numerous
claims under 42 U.S.C. § 1983 and state law. Ellena and Brown move for summary judgement
pursuant to Fed. R. Civ. P. 56(a). Bryson, Evinger, and Klamath County filed a separate motion
for summary judgment. All parties have consented to allow a Magistrate Judge enter final orders
and judgment in this case in accordance with Fed. R. <:;::iv. P. 73 and 28 U.S.C. § 636(c). For the
reasons set forth below, defendants' motions are granted and this case is dismissed.

BACKGROUND
On July I, 20 II, plaintiff was driving on Highway 140 in Klamath County, Oregon. First
Am. Compl. ("FAC") ,!15. PlaintiiTwas travelling east with three companions, each on his own
motorcycle, when Oregon State Police ("OSP") Trooper Ellena noticed them. Campbell Decl.
Attach. I, at 2. Ellena was on-duty and travelling west, in a designated safety corridor and
marked OSP vehicle. !d. The posted speed limit in this safety corridor is 55 miles per hour
("mph"). Campbell Decl. Ex. A, at 5; Chambers Decl. ,! 4. Ellena used his radar device to
measure the speed of the four motorcycles, which registered at 72 and 71 mph. Campbell Decl.
Ex. A, at 5. Senior OSP Trooper David Chambers was also on-duty, independently travelling
westbound on Highway 140, and observed the four eastbound motorcycles. Chambers Decl. ,! 4.
As Ellena reversed direction to pursue plaintiff, Chambers stated over the radio that "he checked
the motorcycle's speeds [sic] at 71 mph." !d.; Campbell Decl. Ex. A, at 6.
Ellena initiated a traffic stop at approximately 7:00p.m. for speeding in a safety corridor.
Campbell Decl. Ex. A, at 5; Daheim Decl. Attach. 3, at 2.

1

1

"Because there were multiple

Because counsel for Klamath County did not numeralize the attachments to his declaration, the
Court refers to the page numbers assigned in the docket.
Page 2- OPINION AND ORDER

individuals and vehicles," Chambers "pulled over to assist in the traffic stop." Chambers Dec!.

,1

5. At or around the same time, Klamath County Deputy Bryson arrived on-scene to provide
cover. FAC ,1,115, 17; Daheim Dec!. Attach. I, at 2, 4, I 0.
The four motorcyclists pulled over and halted roughly in a line, and Ellena parked behind
them. Campbell Dec!. Ex. A, at 6; Campbell Dec!. Ex. B, at 6:59-7:0 I. Ellena first approached
the rear-most motorcyclist, Gerald Verboomen, and asked if he had any weapons on him;
Verboomen responded "no." !d. When asked for his driver's license, Verboomen indicated it was
in an unlocked cargo box on his motorcycle, along with two loaded firearms. !d. Ellena safely
removed the firearms and retrieved Verboomen's driver's license. !d. While Verboomen had a
California concealed weapon permit, he did not possess a license to carry a concealed firearm in
the State of Oregon in violation of Or. Rev. Stat. § 166.250. !d.
Ellena then moved on to Thomas Mattern, asking if he had any weapons; "Mattern
replied, 'No sir ... pocket knife."' Campbell Dec!. Ex. A, at 6; Campbell Dec!. Ex. B, at 7:02.
Ellena obtained Mattern's divers' license, made some cursory inquiries about objects in plain
view on the motorcycle, and approached the next rider - plaintiff -who was wearing a Gypsy
Joker Motorcycle Club vest, including a "I %er" patch. F AC

,1

15; Campbell Dec!. Ex. B, at

7:02; Campbell Dec!. Attach. 3, at 4. Ellena had specific training regarding the Gypsy Joker
Motorcycle Club that he was cognizant of during this stop. Campbell Dec!. Ex. A, at 6; Campbell
Dec!. Attach. I, at 3-4.
After reiterating that the reason for the traffic stop \Vas speeding, Ellena asked plaintiff if
he had any weapons. Campbell Dec!. Ex. A, at 6; Campbell Dec!. Ex. B, at 7:03-04. Plaintiff
responded that he was carrying "a Beretta handgun in his left vest pocket and a Smith and
Wesson revolver in his left side saddle bag." !d. Ellena informed plaintiff that, "for my safety,"

Page 3- OPINION AND ORDER

he was going to remove the loaded firearms. /d. Plaintiff did not object and was cooperative at
all relevant times. /d. Once Ellena safely removed the firearm from plaintiffs person and
obtained his drivers' license, plaintiff, at Ellena's request, voluntarily stepped away from the
saddlebag containing the remaining firearm. Campbell Decl. Ex. B, at 7:06. This permitted
Ellena to turn his attention to the lead rider, Greg Reid, who was also wearing a Gypsy Joker
Motorcycle Club vest. /d.; Campbell Decl. Ex. A, at 7. Although Reid was confi·ontational,
Ellena obtained his drivers' license and safely remove multiple knives. Campbell Decl. Ex. A, at
4, 7; Campbell Dec I. Ex. B, at 7:04-10.
Ellena went back and removed the remaining firearm from the saddlebag of plaintiffs
motorcycle, at which point he noticed that it bore a "Department of Corrections" emblem.
Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B, at 7:09. At 7:15 p.m., Ellena requested that
OSP dispatch "perform a stolen check"; he told the dispatcher, via radio, the serial number of the
firearm and its make/caliber. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B, at 7:15.
Approximately two minutes later the OSP dispatcher informed Ellena that the firearm was
registered as stolen. Campbell Decl. Ex. B, at 7:17. The status of the stolen firearm was later
confirmed by the OSP and Josephine County. Campbell Decl. Exs. C-D. After "advis[ing] [him]
that the revolver he possessed was reported stolen," Ellena Mirandized plaintiff and placed him
under arrest Possession of a Stolen Firearm pursuant to Or. Rev. Stat. § 164.055(d). Campbell
Decl. Ex. A, at I, 7; Campbell Decl. Ex. B, at 7:18. After indicating that he understood his rights,
plaintiff explained that "he bought the revolver [in question] from a guy ... approximately 8
months ago" for $150, despite the fact that he believed it to be worth $500, and did not know it
was stolen. Campbell Decl. Ex. A, at 7. Around 7:25 p.m., after being placed in behind-the-back

Page 4- OPINION AND ORDER

handcuffs and searched, plaintiff was moved into the backseat of Ellena's patrol car. !d.;
Campbell Dec!. Ex. B, at 7:25; Chambers Dec!. ,18.
Ellena re-contacted Mattern. !d.; Campbell Dec!. Ex. A, at 7. He discovered that Mattern,
like Verboomen, had lied about not possessing any firearms. Campbell Dec!. Ex. A, at 7;
Campbell Dec!. Ex. B, at 7:30. In fact, during the entire length of the stop, Mattern had a loaded
firearm concealed in his left boot. !d. Mattern did not have a valid Oregon concealed weapon
permit, such that Ellena seized this additional firearm and arrested Mattern for Unlawful
Possession of a Firearm pursuant to Or. Rev. Stat. § 166.250. Campbell Dec!. Ex. A, at 2, 7;
Campbell Dec!. Ex. B, at 7:33-35.
At 7:50p.m., Chambers allowed plaintiff to step out of the back seat of the patrol vehicle
for approximately two minutes because he was "voicing discomfort." Chambers Dec!. ,1 7;
Campbell Dec!. Ex. B, at 7:50, Track 2. In addition, Chambers moved plaintiffs handcuffs so
that they were in front of his body "for the sole purpose of increasing his comfort." Chambers
Dec!. ,1,1 8-9. He also "inquired if [plaintiff] needed an ambulance [but plaintiff declined, stating
only that] his back hurt." !d. at ,1 7; Campbell Dec!. Ex. 8, at 7:50, Track 2. However, plaintiff
later requested his narcotic pain medication, which was located on his motorcycle. Daheim Dec!.
Attach. 2, at 2. One or more OSP Troopers denied this request. /d. at 2-4.
Around 8: I 0 p.m., plaintiff was allowed out of the backseat of the patrol vehicle for a
second time to stand and stretch. Campbell Dec!. Ex. B, at 8: II, Track 2. Between approximately
8:15p.m. and 8:20p.m., Reid was "issued a verbal warning" for speeding, Verboomen was cited
for Unlawful Possession of a Firearm, and both were "released from the scene." Campbell Dec!.
Ex. A, at 3-4, 7-8; Campbell Dec!. Ex. 8, at 7:04-10, 8:09-18. At 8:25 p.m., Mattern was placed
in the backseat of the patrol car with plaintiff. Campbell Dec!. Ex. B, at 8:25-26. At

Page 5- OPINION AND ORDER

approximately 8:30 p.m., plaintiff was again allowed to step out of the patrol car to stand and
stretch for five minutes. Campbell Dec!. Ex. B, at 8:29-34, Track I & 2. At or around the same
time, Bryson left the scene; he did not speak to plaintiff, perform any investigation, make any
arrests, or take custody of any property. Daheim Dec!. Attach. I, at 2-8. At approximately 8:45
p.m., the towing company arrived to remove plaintiff's and Mattern's motorcycles. Campbell
Dec!. Ex. B, at 8:46.
Almost immediately thereafter, Ellena began transporting plaintiff and Mattern to the
Klamath County .Jail; they arrived at approximately 9:35 p.m. !d. at 8:48-9:33; Campbell Dec!.
Ex. A, at 8. At some unspecified time after his arrival, plaintiff again requested his narcotic
medication or, alternatively, to be taken to a doctor. Daheim Dec!. Attach. I, at 3. This request
was denied and plaintiff did not receive any medical attention while being detained; he was
released on bail at approximately 12:30 a.m. on July 2, 20 II. Daheim Dec!. Ex. I. On August 24,
2011, the Klamath County District Attorney's Office dismissed the charges brought against

plaintiff. FAC ,)25. Plaintiff subsequently "tried to get his firearms back [but] was returned two
holsters and one firearm"; he was informed that the second gun "had been returned to its 'rightful
owner."' !d. at ,)26.
On .June 27, 2013, plaintiff filed a complaint against Ellena, OSP Superintendent Brown,
Bryson, Klamath County Sheriff Evinger, and Klamath County, asserting 42 U.S.C. § 1983
claims for: (I) deprivation of his Fourth and Fourteenth Amendment rights for illegal search and
seizure; (2) deprivation of his Fourth and Fourteenth Amendment rights for false arrest/malicious
prosecution; (3) deprivation of his First Amendment rights in relation to his speech and
association with the Gypsy Joker Motorcycle Club; (4) deprivation of his Fourteen Amendment
rights for failure to provide adequate medical care while in custody; (5) supervisory

Page 6- OPINION AND ORDER

liability/defective policy maker; and (6) municipal liability. Plaintiff also alleges coextensive
state law claims for false arrest, false imprisonment, and malicious prosecution, as well as an
Oregon common law conversion claim. Defendants waived service of process in September
2013. Waiver of Service of Summons (Sept. 16, 20 13); Acceptance/ Acknowledgment of Service
of Complaint (Sept. 30, 20 13).
In November 2014, defendants moved for summary judgment. On February 17, 2015,
plaintiff responded to defendants' motions. 2 Oral argument was held on March II, 2015,
however, plaintiff's counsel neglected to appear. Accordingly, the Court notified the parties that
defendants' motions "would be ruled on by the briefs that have been filed." Minute Order (Mar.
II, 2015).

STANDARD
Summary judgment

IS

appropriate

if the

pleadings,

depositions,

ansvvers

to

interrogatories, admissions on file, and affidavits, if any, "show that there is no genuine dispute
as to any material fact and that the [moving party] is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56( a). Substantive law on an issue determines the materiality of a fact. T W E!ec.
Serv.. Inc. v. Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the

evidence is such that a reasonable jury could return a verdict for the nonmoving party determines
the authenticity of a dispute. Anderson v. Liberty Lobby. Inc., 477 U.S. 242,248 (1986).
The moving party has the burden of establishing the absence of a genuine 1ssue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). lfthe moving party shows the
absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings
and identify facts which show a genuine issue for trial. /d. at 324. Special rules of construction
2

Plaintiff filed separate, but identical, oppositions to defendants' motions. See generally Pl.'s
Resp. to OSP Defs.' Mot. Summ. J.; Pl.'s Resp. to Klamath County Defs.' Mot. Summ. J.

Page 7- OPINION AND ORDER

apply when evaluating a summary judgment motion: (I) all reasonable doubts as to the existence
of a genuine issue of material fact should be resolved against the moving party; and (2) all
inferences to be drawn from the underlying facts must be viewed in the light most favorable to
the nonmoving party. T. W. Elec., 809 F.2d at 630.

DISCUSSION
This dispute centers on whether defendants' conduct violated plaintiff's constitutional
rights. Defendants argue that summary judgment is warranted because the search and seizure
were supported by probable cause, there is no evidence of a further significant injury or the
unnecessary infliction of pain, and plaintiff did not engage in any protected expression. In
addition, all individually named defendants assert that they are entitled to qualified immunity in
relation to plaintiff's federal claims because their conduct was reasonable. Defendants also
contend that plaintiffs' state law claims are time-barred by the Oregon Torts Claims Act's
("OTCA") notice requirement and statute of limitations.
I.

Preliminary Matter
The Court must clarify two issues prior to reaching the substantive merits of defendants'

motions. First, as alleged in the complaint, plaintiff's Fourth Amendment claims are premised
exclusively on defendants' allegedly unlawful search and seizure. See generally FAC. Yet, with
the exception of one sentence related to insufficient medical care, 3 the entirety of plaintiff's
responsive briefs, which contain approximately two pages of legal argument, are devoted to

3

Plaintiff's sole assertion concerning medical treatment- i.e. that "[a]ll law enforcement at the
scene or at the jail had a duty to provide [him with] medical attention"- is overly broad. Pl.'s
Resp. to OSP Defs.' Mot. Summ. J. 6; see also OSP Defs.' Reply to Mot. Summ . .1. 4 ("law
enforcement has no obligation to provide medical care for any and all physical ailments [that] an
arrestee may complain about [such as] headaches, exhaustion, [or] a bump on a knee [and the
case cited to by plaintiff in support of this proposition is inapposite as it addressed] whether the
constitution required [a] municipality [to] pay a hospital for treating someone that the municipal
police injured") (citation omitted).
Page 8- OPINION AND ORDER

defendants' allegedly excessive use of force. See, e.g., Pl.'s Resp. to OSP Del's.' Mot. Summ. J.
5-7. Because he has not moved for leave to file a second amended complaint, and there is
currently no excessive force claim alleged in the FAC, plaintiff's oppositions are immaterial to
the issues presently before the Court. See Wasco Prods .. !nc .. v. Southwal/ Techs., !nc., 435 F.3d
989, 992 (9th Cir.), cert. denied, 549 U.S. 817 (2006) ("summary judgment is not a procedural
second chance to llesh out inadequate pleadings") (citation and internal quotations omitted); see

also Navajo Nation v. U.S. Forest Serv., 535 F.3cl 1058, 1080 (9th Cir. 2008), cert. denied, 556
U.S. 1281 (2009) ("our precedents make clear that where, as here, the complaint does not include
the necessary factual allegations to state a claim, raising such claim in a summary judgment
motion is insufficient to present the claim to the district court"). As a result, plaintiff failed to
adequately address defendants' arguments regarding dismissal. See /3(~jorquez v. Wells Fargo

Bank. NA, 2013 WL 6055258, *5 (D.Or. Nov. 7, 2013) ("[i]fa party fails to counter an argument
that the opposing party makes in a motion, the court may treat that argument as conceded")
(citation and internal quotations and brackets omitted).
Second, beyond plaintiff's conclusory assertions, the record does not contain any
evidence of the most extreme instances of alleged police misconduct.

4

In fact, plaintiff's

oppositions do not refer to any evidence of record, except in a single instance; they cite to
"Nemeth Deposition p. 111-38" is support of the contention that, "[u]pon arrival at the jail,

4

Plaintiff's lawsuit is based on the following facts: (I) defendants "executed a planned stop of
members of the Gypsy Joker Motorcycle Club"; (2) one of the officers at the scene "pulled out
his gun and pointed it at the motorcyclists"; (3) "[cl]efenclants refused to leave [his] motorcycle
with Mrs. Nemeth, even though she was the lawful owner of the motorcycle" and on scene; (4)
he "fell out ofthe car when they got to the jail" and was "kicked [by Ellena and ordered to] 'Get
up!"'; (5) he "endured several clays of intense discomfort [and] emotional damage as a result of
his interaction with Defendants"; and (6) he "had not committed any crime and was being
detained for a traffic manner." Pl.'s Resp. to OSP Defs.' Mot. Summ. J. 3-6 (citing FAC ,!,!1528).

Page 9- OPINION AND ORDER

[plaintiff was] thrown to the ground." Pl.'s Resp. to OSP Del's.' Mot. Summ. J. 6. However, as
OSP defendants correctly observe, plaintiff did "not filed this portion of the deposition transcript
as an exhibit [and] has failed to properly provide any authentication." 5 OSP Dels.' Reply to Mot.
Summ. J. 2.
In other words, plaintiff did not submit any evidence, admissible or otherwise, in
conjunction with his opposition. Moreover, defendants' evidence blatantly contradicts plaintiff's
bare allegations. See. e.g., Campbell Dec!. Exs. A-D; Chambers Dec!.

,1,1 4-9.

For instance, the

video and audio recording of the event demonstrates that defendants did not point a gun at
plaintiff or engage in any other improper use of force. See generally Campbell Dec!. Ex. B.
Thus, plaintiff's allegations of wrongdoing are without support and therefore insufficient to
create a genuine issue of material fact. See Celotex, 477 U.S. at 322 (summary judgment should
be entered against "a party who

l~1ils

to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden on proof at
trial"); see also Hernandez v. S/Jacelabs Med. Inc., 343 F.3d II 07, i 116 (9th Cir. 2003)
("conclusory allegations, unsupported by facts, are insufficient to survive a motion for summary
judgment") (citation omitted). On this basis alone, defendants are entitled to summary judgment.
II.

Federal Claims
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (I) the

conduct complained of deprived him or her of an existing federal constitutional or statutory right;
5

For these reasons, OSP defendants "object to this portion of Pia inti IT's 'evidence."' OSP Del's.'
Reply to Mot. Summ. J. 2. Despite being permitted to do so, plaintiiT did not respond to this
evidentiary objection or otherwise produce the cited to deposition portions. See LR 56-I (b) ("[i]f
an evidentiary objection is raised by the moving party in its reply memorandum, the non-moving
party may file a surreply memorandum"). In any event, OSP defendants' objection is denied as
moot because the Court did not rely on this evidence in resolving whether summary judgment
was appropriate. Perez-Denison v. Kaiser Found Health Plan a/theN. W., 868 F.Supp.2d I 065,
I 088-89 (D.Or. 20 12).
Page 10- OPINION AND ORDER

and (2) the conduct was committed by a state actor or a person acting under color of state law .
. L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). A

federally recognized liberty interest to be free from unreasonable searches and seizures exists
under the Fourth Amendment. Florida v. .lime no, 500 U.S. 248, 250 ( 1991 ). Likewise, the First
Amendment protects expressive conduct and expressive association. Spence v. Washington, 418
U.S. 405,409-11 (1974) (per curiam); Roberts v. U.S. Jaycees, 468 U.S. 609,617-18 (1984). A
person detained in police custody also "has a constitutionally protected right to receive needed
medical care protected by the substantive due process clause of the Fourteenth Amendment." 6
Hudson v. City of Salem, 2009 WL 1227770, *I 0 (D.Or. May I, 2009) (citing City of' Revere v.
Mass. Gen. f-!osp., 463 U.S. 239,244-45 (1983); Camel/ v. Grimm, 74 F.3d 977,979 (1996)).

It is undisputed that defendants qualify as state actors for the purposes of 42 U.S.C. §
1983. Therefore, this case initially hinges on whether Ellena or Bryson, the two on-scene law
enforcement officers, violated plaintiffs' constitutional rights or are otherwise entitled to
qualified immunity. Qualified immunity shields government officials from civil liability "insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(citations omitted). To ascertain if a government actor is entitled to qualified immunity, the court
evaluates whether: (I) the alleged misconduct violated a right; and (2) that right was clearly
established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236
6

Where "a particular constitutional amendment provides an explicit textual source of
constitutional protection that amendment, not the more generalized notion of substantive due
process must be the guide for analyzing these claims." Pelster v. Walker, 185 F.Supp.2d 1185,
1189 (D.Or. 2001) (citation and internal quotations and ellipses omitted). As such, plaintiff's
claims are not cognizable under the Fourteenth Amendment to the extent they are premised on
rights already secured by the Fourth Amendment. See. e.g, FAC ,],]41, 46, 56 (alleging that his
Fourteenth Amendment rights were violated because defendants performed a search and arrest
without probable cause).
Page II- OPINION AND ORDER

(2009). Thus, if the government actor reasonably believed that his or her conduct complied with
the law, summary judgment based on qualified immunity is appropriate. !d. at 244.
A.

OSP Defendant Ellena

Plaintiff alleges four federal claims against Ellena: illegal search and se1zure, false
arrest/malicious prosecution, violation ofrights to free speech and free association, and failure to
provide medical care.
1.

Illegal Search and Seizure

A traffic stop "constitutes a seizure under the Fourth Amendment and, as a result, an
officer must have reasonable suspicion before detaining a motorist." DeMartino v. City of
Stayton, 2013 WL 596141, *3 (D.Or. Feb. 14, 2013) (citations omitted). Reasonable suspicion

exists "when the detaining officer is aware of specific articulable facts, together with rational
inferences from those facts, that reasonably warrant suspicion that the law is being broken."
United States v. Collom, 614 F.2d 624, 628 (9th Cir. 1979), cert. denied, 446 U.S. 923 ( 1980)

(citation and internal quotations omitted). Once a legal stop is effectuated, an officer may ask
questions unrelated to the stop or pat down the driver "for weapons if the oflicer reasonably
concludes that the driver might be armed and presently dangerous." Arizona v. Johnson, 555
U.S. 323, 331 (2009).
It is undisputed that the proffered reason for the stop was because Ellena and Chambers,

independent of one another, observed plaintiff to be travelling at approximately 71 mph in a
designated safety corridor, in violation of Oregon Revised Statutes Chapter 811. Campbell Dec!.
Ex. A, at 5-6; Chambers Dec!.

,l 4;

see also Or. Rev. Stat. §§ 811.100, 811.105, 811.111,

811.180, 811.483 (making it unlawful to drive more than 55 mph in a designated safety
corridor). Indeed, there is no evidence in the record indicating that plaintiff \Vas not speeding at

Page 12- OPINION AND ORDER

the time of the stop. See Chambers Dec!. 1!4 (Chambers' "radar unit measured [plaintiffs] speed
1

at 71 [mph]"); Campbell Dec!. Ex. A, at 5 (Ellena "calibrated [his] front moving radar and
observed a display speed of 72 and 71 mph"); Campbell Dec!. Ex. 8, at 8:16 (Reid remarking
that they had been going 62 mph but inadvertently accelerated while travelling along the
downgrade). Given this unrefuted evidence, plaintiff's deposition testimony - i.e. that the stop
was pretextual because he "was not impending the normal traffic [and did not think he was]
going any faster than 60"- does not create a genuine issue of material fact, especially because he
admitted to not "look[ing] at his speedometer while ... driving dovvn the road." Campbell Dec!.
Attach. 3, at 2-3; s·ee also Or. Rev. Stat. § 811.109 (a penalty for a speed violation may be
imposed if the driver is travelling as little as "[o]ne [mph] in excess of the speed limit").
Accordingly, Ellena had reasonable suspicion to initiate a stop due to speeding.
As a result, Ellena was permitted to make an inquiry about any subject, provided that
inquiry did not measurably extend the traffic stop.

7

Arizona, 555 U.S. at 333; see also Or. Rev.

Stat.§ 810.410(3)(d) (authorizing police officers to "make an inquiry to ensure the safety of the
officer, the person stopped or other persons present, including an inquiry regarding the presence
of weapons"). His questioning of Verboomen, and each subsequent motorcyclist, about firearms
was therefore lawful.
The Court also finds that Ellena's search of plaintifT was lawful. As OSP defendants note,
"Ellena had four motorists that had to be contacted, identified, and addressed, just to resolve the
traffic violation . . . Verboom[e]n's denial [regarding his possession of firearms] almost
7

Although not explicitly challenged by plaintiff, the Court finds that the stop did not last an
unreasonable amount of time. See Campbell Dec!. Ex. 8, at 6:59-7:18 (less than twenty minutes
elapsed between Ellena's initiation of the stop and plaintiff's arrest); see also DeMartino, 2013
\VL 596141 at *5 ("even if the stop lasted for twenty minutes, the Court cannot cone! ude that it
was unreasonable, especially given that the stop was initially extended due to plaintiff's f~1ilure
to cooperate").
Page 13- OPINION AND ORDER

immediately proved to be false; meaning Ellena was quickly confronted [by] a driver [with]
hide[n] weapons." OSP Del's.' Mot. Summ . .J. 7. These circumstances, in conjunction Ellena's
training (i.e. that the Gypsy Joker Motorcycle Club was an "outlaw motorcycle club" whose
members were often armed) and experiential knowledge (i.e. that local Gypsy Joker Motorcycle
Club members had recently engaged in violent criminal conduct), it was reasonable for Ellena to
conclude that others in Verboomen's party might be armed and presently dangerous. Campbell
Dec!. Attach. I, at 3-4; see also Johnson, 555 U.S. at 331 ("[t]he government's legitimate and
weighty interest in officer safety ... outweighs the de 1ninimis additional intrusion of requiring a
driver, already lawfully stopped, to [answer questions,] exit the vehicle[,] [or] be patted down for
weapons") (citations and internal quotations omitted); State v. Redmond, 114 Or.App. 197,201,
834 P.2d 516 (1992) (search was lawful where the officer possessed a "generalized
understanding of the practices of motorcycle club members" and "he saw that defendant was
armed with a knife"). 8
Finally, once plaintiff informed Ellena that he was carrying loaded firearms, Ellena was
entitled to seize those firearms "in order to avoid any possibility that [plaintiff] would use [them]
against [him]." United Stales v. Willis, 431 F.3d 709, 717 (9th Cir. 2005); see also Campbell

8

Further, as discussed in section Il(A)(ii), plaintiffs arrest was lawful, such that another valid
basis existed for Ellena's search. See lvlason v. Johnston, 200 I WL 34042618, *7 (D.Or. May 11,
2001) ("[a] search incident to a lawful arrest is a well-established exception to the warrant
requirement which may entail both a search of the arrestee and a search of the area within the
control of the arrestee") (citing United Stales v. Robinson, 414 U.S. 218,224 (1973)); see also
United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004), cerl. denied, 544 U.S. 956 (2005)
("when an arrest follows quickly on the heels of the search, it is not particularly important that
the search preceded the arrest rather than vice versa") (citation and internal quotations omitted).

Page 14- OPINION AND ORDER

Dec!. Ex. A, at 6 (Ellena explaining to plaintiff that he was selZlng the firearms "for my
sa tety- .9
o

'')

In sum, based on the totality of the circumstances, Ellena's actions did not violate
plaintiff's Fourth and Fourteenth Amendment rights. Regardless, even if plaintiff could establish
a violation of such rights, Ellena would be entitled to qualified immunity under the undisputed
f~1cts,

as the Court cannot conclude that Ellena's conduct was unreasonable under the

circumstances. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects "all
but the plainly incompetent or those who knowingly violate the law"). OSP defendants' motion
is granted as plaintiff's 42 U.S.C. § 1983 illegal search and seizure claim.
11.

False Arrest/Malicious Prosecution

"A person is seized by the police and thus entitled to challenge the government's action
under the Fourth Amendment when the officer, by means of physical force or show of authority,
terminates or restrains his freedom of movement, through means intentionally applied." /3rendfin
v. California, 551 U.S. 249,254 (2007) (emphasis and internal citations and quotations omitted).

Nevertheless, a warrantless arrest "does not violate the Fourth Amendment if the officers had
probable cause." Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (citation omitted).
Probable cause exists "if the available facts suggest a fair probability that the suspect has
committed a crime." United States v. Hartz, 458 F.3d I 0 II, I 018 (9th Cir. 2006) (citation and
internal quotations omitted). "In order to prevail on a § 1983 claim of malicious prosecution, a
plaintiff must show that the defendants prosecuted [him] with malice and without probable
cause, and that they did so for the purpose of denying [him] equal protection or another specific

9

Plaintiff does not raise the "taking [of his] motorcycle" in relation to his federal claims; he
challenges only the seizure of his firearms. Compare FAC ~l,l 40-44, with id. at ,),)96-1 00.
Page 15- OPINION AND ORDER

constitutional right." Awadby v. City olAdelonto, 368 F.3d 1062, 1067 (9th Cir. 2004) (citation
and internal quotations omitted).
In this case, Ellena's lawful search, and subsequent investigation, revealed that one of
plaintiff's firearms \Vas reported stolen from the Josephine County Department of Corrections.
Campbell Dec!. Ex. A, at 7; Campbell Dec!. Ex. B, at 7:09-17; see also Campbell Dec!. Exs. C-D
(OSP report confirming that the gun in plaintiff's possession was stolen). Although plaintiff
remarked that he did not know the firearm was stolen, a reasonable oflicer under the
circumstances could nonetheless have concluded that plaintiff committed a crime pursuant to Or.
Rev. Stat. § 164.055(d). Indeed, the OSP confirmation report, combined with the fact that both
Verboomen and Mattern made misrepresentations regarding the lirearms in their possession,
created a fair probability that plaintiffs claimed ignorance of the gun's status as stolen was
insincere. See Campbell Dec!. Attach. 3, at 6 (plaintiff testifying that it was reasonable for Ellena
to conclude that the gun was stolen based on the OSP confirmation report); see also State v.
Cor/maker, 60 Or.App. 723, 742-43, 655 P.2d 575 (1982), afj'd, 295 Or. 505, 668 P.2d

354 (1983), cert. denied, 465 U.S. 1066 (1984) (when a person possesses a firearm that he or she
knows was taken unlawfully !l·om another, the person is guilty under Or. Rev. Stat. §
164.055(d)).
Accordingly, Ellena's decision to arrest plainti ft' and refer him for prosecution was
supported by probable cause. Furthermore, there is no evidence of any malice. In fact, the video
and audio recording of the stop, arrest, and ride to Klamath County Jail demonstrate Ellena
treating plaintiff with professionalism and respect. See genem!!y Campbell Dec!. Ex. 13. At no
time does Ellena make any disparaging remarks about plaintiff or the Gypsy Joker Motorcycle
Club. /d. Ellena also does not physically handle plaintiff in rough or aggressive manner. /d. OSP

Page 16- OPlNIONAND ORDER

defendants' motion is granted as to plaintiff's 42 U.S.C. § 1983 claim for false arrest/malicious
prosecution.
111.

Violation of Rights to Free Speech and Free Association

Conduct is expressive, and therefore worthy of First Amendment protection, if "[a]n
intent to convey a particularized message was present, and in the surrounding circumstances the
likelihood was great that the message would be understood by those who viewed it." Spence, 418
U.S. at 409-11. Similarly, in order to prevail on a claim for interfering with an individual's First
Amendment right to associate, the group at issue must "engage in expressive activity." Boy

Scouts a/Am. v. Dale, 530 U.S. 640, 654 (2000); see also IDK. Inc. v. Clark Cnty., 836 F.2d
1185, 1192 (9th Cir. 1988) ("[t]he First Amendment's freedom of association protects groups
whose activities are explicitly stated in the amendment: speaking, worshiping, and petitioning the
government") (citation omitted). Context is crucial when determining whether conduct rises to
the level of expression for purposes of the First Amendment. Spence, 418 U.S. at 410.
The Court finds that plaintiff's act of wearing a Gypsy Joker Motorcycle Club vest while
driving down a rural highway does not qualify as protected speech. Critically, plaintiff did not
furnish any evidence evincing that Gypsy Joker Motorcycle Club members advocate a specific
political view, stand for a particular public position, are a spiritual or religious group, petition the
government about anything, or otherwise imbue any particular meaning to the insignia on their
vests. See Campbell Dec\. Attach. 3, at 4-5 (plaintiff testifying that he did not know the
significance of the Gypsy Joker Motorcycle Club or "[what the 13 or] 1%'r patch means ...
[they are] open to interpretation"). Thus, as OSP defendants denote, "[t]hey are simply patches
that adorn a garment- not unlike a bowling league, or T-ball team, or even a brand name on a

Page 17- OPINION AND ORDER

shirt." OSP Defs.' Mot. Summ. J. II; see also Campbell Dec!. Attach. 3, at 4-5 (plaintiff
remarking that Gypsy Joker Motorcycle Club patches are "[p]art of the costume").
Moreover, there is little likelihood that any message would be understood by those
viewing plaintiff's vest and, further, the context in which plaintiff's alleged expression took
place does not add any additional meaning. At all relevant times, plaintiff was riding a
motorcycle down a rural highway; nothing about this act tends to give any further significance to
plaintiff's vest and insignia. Therefore, plaintiff's Gypsy Joker Motorcycle Club vest or
members1.1ip is not the type of expression the First Amendment was designed to protect. See

Roberts. 468 U.S. at 655 (an organization must "engage in expressive activity that could be
impaired in order to be entitled to protection"); 13/aisdell v. Frappiea, 729 F.3d 1237, 1247 (9th
Cir. 2013) (the "act of wearing ... vests adorned with a common insignia simply does not
amount to the sort of expressive conduct protected by the First Amendment") (citations and
internal quotations omitted). OSP defendants' motion is granted as to plaintiff's 42 U.S.C. §
1983 First Amendment claim.
tv.

Failure to Provide Medical Care

"[P]ersons in custody [have] the established right to not have officials remain deliberately
indifferent to their serious medical needs." Carnell, 74 F.3d at 979. "A serious medical need is
present whenever the failure to treat a prisoner's condition could result in further significant
injury or the unnecessary and wanton infliction of pain." Lolli v. Cnty. ol Orange, 35 I F.3d 410,
419 (9th Cir. 2003) (citation and internal quotations omitted). Deliberate indifference is
established when a detainee shows that "the official knew of and disregarded a substantial risk of
serious harm to his health or safety." Johnson v. Meltzer, 134 F.3d 1393, 1398 (9th Cir.), cert.
denied, 525 U.S. 840 (1998) (citation omitted).

Page 18- OPINION AND ORDER

The record before the Court does not contain any evidence of a further significant injury.
See, e.g., Pl.'s Resp. to OSP Defs.' Mot. Summ. J. 4 (plaintiff's alleged injury consisted or

"several days of intense discomfort"). Plaintiff was detained for less than six hours total and the
majority of that time was spent in Klamath County Jail, wherein he could presumably change
positions at will to accommodate his preexisting back condition. Daheim Dec!. Ex. I. During the
approximately two hour period he was in the backseat of the patrol car, plaintiff was allowed to
go outside three times to stand up and stretch. Campbell Dec!. Ex. 13, at 7:25-9:37. Further,
within 30 minutes of being detained, Chambers moved plaintiff's handcuffs to the front of his
body to increase his comfort. !d. at 7:50, Track 2; Chambers Dec!. ,[,[ 6-9. Thus, although
plaintiff voiced discomfort, the Court cannot conclude that merely sitting in the back of the
patrol car for a discrete period of time, albeit in handcuffs and on plastic seats, resulted in further
significant injury, especially where, as here, emergency medical aiel was offered but declined.

10

Chambers Dec!. ,[ 7; Daheim Dec!. Attach. 2, at 2-3; see also Frost v. Agnos, 152 F.3d 1124,
1130 (9th Cir. 1998) ("[m]ere negligence in the provision of medical care ... does not constitute
a constitutional violation") (citation omitted).
Similarly, there is no evidence of an unnecessary and wanton infliction of pain. Even
accepting plaintiff's allegation that defendants' refusal to administer his narcotic pain medication
in the back of the patrol car resulted in significant pain, the fact remains that such detainment
was required, as "there was simply nowhere else t6 secure him" due to the fact that he was
lawfully arrested on a rural highway. OSP Defs.' Mot. Summ. J. 15; FAC ,[ 21. Additionally, the
amount of time plaintiff was held in the patrol car was not unreasonable. It took approximately
50 minutes for Ellena to transport plaintiff and Mattern to Klamath County Jail; during the
10

The Court also notes that, although not dispositive, plaintiff was navigating a heavy
motorcycle over a curvy, rural highway at the time of his arrest.
Page 19- OPINION AND ORDER

remainder of plaintiffs confinement in the back of the patrol car, the officers on scene were
questioning and processing the other motorcyclists, providing cover, or waiting for the towing
company to arrive. Campbell Decl. Ex. B, at 7:25-9:37.
Lastly, there is no evidence of deliberate indifference. As denoted above, the video and
audio footage of the event reveals that Ellena and Chambers treated plaintiff with respect and
were generally attendant to his needs. See, e.g, id. at 7:50-52 (Chambers asking plaintifTwhether
there \vas anything else he could do to help plaintiff after moving his handcuffs and offering to
call an ambulance; plaintiff declined, stating 'Tm okay"); id. at 7:28 (Ellena asking plaintiff if
the radio was too loud or if he was too warm, and making adjustments accordingly). Because
plaintiff's substantive due process rights were not violated, OSP defendants' motion is granted as
to this issue.
B.

Klamath County Defendant Brvson

The sole federal claim asserted against Bryson is for failure to provide medical care. As
addressed section II(A)(iv), there is no evidence in the record of a further significant injury or the
unnecessary and wanton infliction of pain. There is also no evidence that defendants acted with
deliberate indifference to a serious medical need.
Furthermore, Bryson did not interact with

plaintiff~

such that he had no knowledge of

plaintiffs underlying back impairment or need for medication. See generally Campbell Decl. Ex.
13; see also Daheim Decl. Attach. 1, at 2-6 (Byson testifying that he did not speak with or
otherwise interact with plaintiff); Daheim Decl. Attach. 2, at 3-4 (plaintiff could not identify why
he had named 13ryson as a defendant, as he "dl_id]n't remember him personally" fi·om the stop).
Bryson likewise did not conduct any investigation during the stop or make any decisions
regarding plaintiff's arrest and detention. !d. Even assuming plaintiffs substantive due process

Page 20- OPINION AND ORDER

rights were violated, Bryson lacked the requisite personal participation. See Barren v.
Harrington, 152 F.3cl 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999) (for

liability to attach under 42 U.S.C. § 1983, the plaintiff must establish that the defendant "was
personally involved in the deprivation of his civil rights"); see also Hopkins v. /Jonvicino, 573
F.3cl 752, 770 (9th Cir. 2009), cert. denied, 559 U.S. 1048 (2010) (officer who "participated in
neither the planning nor the execution of the unlawful search" was not an "integral participant"
and therefore was not liable). Klamath County defendants' motion is granted in this regard.
C.

Klamath Countv Defendant EvinQer

Plaintiff alleges federal claims against Evinger for

f~1ilure

to provide medical care and

supervisory liability/defective policy maker.
1.

Failure to Provide Medical Care

As discussed herein, defendants did not violate plaintiff's substantive clue process rights.
Moreover, as with Bryson, there is no evidence demonstrating that Evinger spoke to or otherwise
interacted with plaintiff, or was personally involved in making decisions related to his arrest,
detention, or prosecution. See Ashcrofi v. Iqbal, 556 U.S. 662, 676 (2009) (supervisory officials
"may not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior") (citations omitted). Klamath County defendants' motion is granted as to

plaintiff's 42 U.S.C. § 1983 claim for failure to provide medical care.
11.

Supervisorv Liabilitv/Defective Policy Maker

Pursuant to 42 U.S.C. § 1983, oflicials may be held incliviclually liable for their own
culpable action or inaction in the training, supervision, or control of subordinates. Larez v. City
of L.A., 946 F.2cl 630, 646 (9th Cir. 1991) (citations omitted). Liability depends upon whether the

supervisor "set in motion a series of acts by others, or knowingly refused to terminate a series of

Page 21 -OPINION AND ORDER

acts by others, which he knew or reasonably should have known, would cause others to inflict
the constitutional injury." Blankenhorn v. City

ol Orange, 485 F.3d 463, 485 (9th Cir. 2007).

Plaintiff must show a causal connection between the official's failure to train or supervise and
the alleged constitutional violation. /d.
A supervisor's subsequent "ratification" or a subordinate's conduct can also form the
basis for liability under 42 U.S.C. § 1983; however, the supervisor must actually approve of the
subordinate's decision and the basis for it, and be the product of a "conscious, affirmative"
choice to ratify the conduct in question. Gillelle v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.
1992), cert. denied, 510 U.S. 932 (1993); see also Lytle v. Carl, 382 F.3d 978, 987 (9th Cir.
2004) ("mere failure to overrule a subordinate's actions, without more, is insufficient to support
a§ 1983 [ratification] claim").
As summarized in the foregoing sections, plaintiff's First, Fourth, and Fourteenth
Amendment rights were not violated. Moreover, the employee whom Evinger was purportedly
supervising- i.e. Bryson- was not personally involved in the decision to stop, search, or seize
plaintiff and his property, and he like\vise was not an integral participant in any of those actions.
As a result, Evinger cannot be liable in his supervisory capacity. See City ofLA. v. f-!ef!er, 475
U.S. 796, 799 (1986) (in order for liability to attach in this context, the plaintiff must, as a
threshold matter, have "suffered [a] constitutional injury at the hands of the individual police
officer"); see also Jackson v. City

ol Bremerton, 268 F.3d 646, 653-54 (9th Cir. 200 I) ("[n]either

a municipality nor a supervisor, however, can be held liable under § 1983 where no injury or
constitutional violation has occurred") (citations omitted). In any event, there is no evidence
before the Court that Evinger neglected to supervise or train officers about providing cover to
other law enforcement agencies that have conducted a traffic stop, or knew Bryson was engaging

Page 22- OPINION AND ORDER

in unconstitutional activity and approved of it nonetheless. 11 Klamath County defendants' motion
is granted as to this issue.
D.

OSP Defendant Brown

As with Evinger, plaintiff asserts a supervisory liability/defective policy maker claim
against Brown. Accordingly, for the reasons discussed in section II(C), OSP defendants' are
entitled to summary judgment, as there is no indication that Brown failed to provide proper
training or supervision regarding traffic stops, or ratified Ellena's allegedly unconstitutional acts.
Similarly, there is no evidence that Brown had anything to do with the stop, detention, search, or
arrest ofplaintifT.
In

f~1ct,

Brown's deposition reveals that he has never had any meaningful oversight of

OSP patrol functions. See Campbell Dec!. Attach. 2, at 2-3 (Brown explaining that was hired into
OSP as a Major, from his then-job of Douglas County Sheriff, such that he had never worked, or
been trained, as an OSP trooper; as an OSP Major, his responsibilities were: forensics, the
medical examiner's office, the fire marshal's office, communications, data systems, lottery
enforcement, tribal gaming enforcement, and mixed martial arts/boxing regulation). In other
words, Brown initially oversmv "outreach kind of functions [and] no operations internally, as far
as like patrol or criminal." !d. at 3. Once he was promoted to OSP Superintendent, Brown spent
his time dealing with "agency structure, agency budget, threats of layoffs and planning,"
implementing "electronic records management[,] adjust[ing] agency enterprise services," and
"interacting with the governor's office [and] with the legislators and responding to issues." !d. at
4; see olso id. at 5 (plaintiff testifying that that he did not know specifically what involvement
11

It appears as though Evinger is being sued solely in his oflicial capacity, such that the claim
against him is duplicative of that asserted against Klamath County. See Ctr. for Bio-Ethicol
Reform. Inc. v. L.A. Cnty. Sheriff Dep 't, 533 F.3d 780, 799 (9th Cir. 2008) ("[w]hen both a
municipal officer and a local government entity are named, and the officer is named only in an
official capacity, the court may dismiss the officer as a redundant defendant").
Page 23- OPINION AND ORDER

Brown had in creating an alleged policy of selective enforcement against motorcycle clubs, but
generally reasoning that "when you're the captain of a ship, you're responsible for the lowest
member of the crew"). For this additional reason, OSP defendants' motion is granted as to
plaintiff's 42 U.S.C. § 1983 supervisory liability/defective policy maker claim.
F

Defendant Klamath County

Lastly, plaintiff alleges a "Monell claim" against Klamath County based on its "policy,
custom or practice which promoted, allowed and/or

l~1cilitated

the unconstitutional treatment [of

plaintiff on] the assumption that members of the Gypsy Joker Motorcycle Club were criminals ..
. when no crime had been committed." FAC ,j1 j 35-36. A political subdivision "may he held
1

liable under section 1983 if its deliberate policy caused the violation alleged." Blankenhorn, 485
F.3d at 483 (citing Monell v. Dep ., oj"Soc. Servs. oj"N. Y., 436 U.S. 658, 694 (1978)).
As such, plaintiff's Monell claim is fatally flawed for the same reason as his supervisory
liability/defective policy maker claim: plaintiffs constitutional rights have not been violated.
Jackson, 268 F.3d at 653-54. Further, plaintiffs Monell claim is premised on the

f~1ct

that the

stop was both pretextual and unlawful. However, as discussed in section II(A), plaintiff was
pulled over because he was speeding and the subsequent search of his person and motorcycle,
and seizure of his firearms, was reasonable. In addition, at the time of his arrest, probable cause
existed to believe that he had committed a crime pursuant to Or. Rev. Stat. § 164.055(d).
Therefore, even accepting that Klamath County has policy to discriminate against motorcycle
clubs, that policy was not "the moving force behind" defendants' actions. Frank v. Cascade
J-Jealthcare Only., Inc., 2013 WL 867387,

* 17 (D.Or.

Mar. 6, 2013) (citing Mabe v. San

Bernardino Cnty., Dep'l o{Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001)). Klamath

County defendants' motion is granted at to plaintiffs 42 U.S.C. § 1983 Monell claim.

Page 24- OPINION AND ORDER

III.

State Claims

In addition to his federal claims, plaintiff asserts four state law claims against defendants.
Dismissal of plaintiff's federal claims does not automatically deprive this Court of subjectmatter. Carlsbad Tech., Inc. v. HIF Bio. Inc., 556 U.S. 635, 639 (2009). Rather, where a district
court dismisses "all claims over which it has original jurisdiction," it may, in its discretion,
"decline to exercise supplemental jurisdiction" over pendent state law claims. 28 U.S.C. §
1367(c)(3); Lacey v. Maricopa Cnty., 693 F.3d 896,940 (9th Cir. 2012).
Plaintiff's lawsuit has been pending for nearly two years and he has undergone the
withdrawal of several attorneys. Additionally, given that his counsel did not appear at oral
argument or file a surreply brief, it appears as though plaintiff may be proceeding pro se at this
point. Therefore, the Court retains jurisdiction of plaintiff's pendent state law claims in order to
resolve this lawsuit in its entirety. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351
(1988) (retaining jurisdiction over pendent state law claims is appropriate where it serves the
interests of efficiency and judicial economy).
A.

OTCA Notice

The OTCA provides that a plaintiff asserting state law tort claims against a public body
or its employees must give notice of such claims "within 180 days after the alleged loss or
injury." Or. Rev. Stat. § 30.275(2)(b). Notice can be either formal or actual. Or. Rev. Stat. §
30.275(3). Formal notice is a written communication from the plaintiff containing a "statement
that a claim for damages is or will be asserted against the public body [and a] description of the
time, place and circumstances giving rise to the claim." Or. Rev. Stat. § 30.275(4). Actual notice
"is a communication that (I) allows the recipient to acquire actual knowledge of the time, place
and circumstances that give rise to the specific claim or claims that the plaintiff ultimately

Page 25- OPINION AND ORDER

asserts; and (2) would lead a reasonable person to conclude that the plaintiff has a general intent
to assert a claim." Flug v. Univ. o/Or .. 335 Or. 540, 554, 73 P.3d 917 (2003); Or. Rev. Stat.§
30.275(6). Timely notice is a condition precedent to recovery against a public body or its
employees. Tyree v. Tyree, 116 Or.App. 317, 320, 840 P.2d 1378 (1992), rev. denied, 315 Or.
644, 849 P.2cl 525 (1993); Or. Rev. Stat. § 30.275(1 ).
On July 7, 2011, plaintiff submitted a tort claim notice to Klamath County, 12 the
substantive portions of which state that "a claim for damages with be asserted [because] the
County illegally withheld medications and other vital medical services when it housed and
lodged [plaintiflj on July 1-2, 20 II." Daheim Dec!. Ex. 2. This notice did not mention any claim
for false imprisonment, malicious prosecution, or conversion, and presented no facts that would
permit Klamath County defendants to investigate or settle such claims. See Leonard v. State, 52
Or.App. 923, 928, rev. denied, 291 Or. 662, 639 P.2d 1280 (1981) (the purpose of the o·rcA is
to save needless expense and litigation by providing an opportunity for the amicable resolution
of disputes, and to allow the public body to promptly and fully investigate claims and defenses).
Klamath County did not receive notice of any other state law claims "until plaintiff filed
his complaint on June 27, 2013," more than 180 clays after plaintiff's alleged injury. Klamath
County DeLs.' Mot. Summ. J. 21; see also Or. Rev. Stat. § 30.275(3) (the "[c]ommencement of
an action" is sufficient to provide OTCA notice only if it is filed within 180 dates of the alleged
loss or injury). As such, plaintiff failed to furnish timely notice of his for false imprisonment,
malicious prosecution, and conversion claims against Bryson and/or Klamath County. Shepard v.
City of Portland, 829 F.Supp.2cl 940, 959 (D.Or. 2011 ). Klamath County defendants' motion is

granted in this regard.
12

OSP defendants do not raise any issues concerning the OTCA notice requirement. See
generally OSP Defs.' Mot. Summ. J.; OSP Defs.' Reply to Mot. Summ. J.
Page 26- OPINION AND ORDER

B.

Statute of Limitations

Lawsuits asserting state law claims against a public body or official acting within the
scope of his or her employment "shall be commenced within two years after the alleged loss or
injury." Or. Rev. Stat. § 30.275(9); see also Walker v. Armco Steel Corp., 446 U.S. 740, 751
(1980) ("state law determines when an action is commenced for statute of limitations purposes").
An action is not commenced under Oregon law for statute of limitation purposes until "the
complaint is lilecl, and the summons served on the defendant." Or. Rev. Stat. § 12.020(1). If
service is completed within 60 clays of the filing of the complaint, the action is "deemed to have
been commenced upon the elate on which the complaint in the action \vas filed." Or. Rev. Stat. §
12.020(2).
Plaintiff had actual knowledge of his alleged injury at the time it transpired, such that his
claims accrued no later than July 2, 2011. FAC ,] 15; Daheim Dec!. Ex. 2; see also Phelps

v.

Wyeth. Inc., 2014 WL 4839808, *4 (D.Or. Sept. 26, 20 14) ("a claim accrues when a plaintiff

knows or should know of the potential serious injury and the defendant who caused such injury")
(citing T R. v. Boy Scouts o/Am., 344 Or. 282, 294-96, 181 P.3d 758 (2008)). Accordingly, the
statute of limitations expired on July 2, 2013. Although plaintiff liled his complaint on June 27,
2013, service was not completed until nearly three months later, in September 2013. See
Klamath County Del's.' Mot. Summ. J. 22 (Klamath County defendants "waived service [on]
September 16, 2013"); OSP Defs.' Mot. Summ. J. 16 (OSP defendants "waived service on
September 30, 20 13"). While the Court granted plaintiff extensions of time to complete service
under Fed. R. Civ. P. 4(m), such extensions did not toll the deadline under Or. Rev. Stat. §
12.020. Foster v. Cnty. ol Lake, 2007 WL 2138610, *2 (D.Or. July 24, 2007); see also Torre v.
Brickey, 278 F.3d 917, 919 (9th Cir. 2002) (per curium) ("Rule 4(m) merely sets a procedural

Page 27- OPINION AND ORDER

maximum time frame for serving a complaint, whereas Or. Rev. Stat.§ 12.020 is a statement of a
substantive decision by that State that actual service on, and accordingly actual notice to, the
defendant is an integral part of the several policies served by the statute of limitations") (citations
and internal quotations and brackets omitted).
Because summonses were served on defendants more than 60 clays after the complaint
was tiled, plaintiffs action is deemed to have commenced the elate on which service was
effectuated. Burroughs v. Shinn, 2006 WL 305910, *4 (D.Or. Feb. 7, 2006). As a result,
plaintiff's claims are time-barred by the statute of limitations. See Foster, 2007 WL 2138610 at
*2-3 (dismissing state lcl\V claims under virtually identical circumstances). Defendants' motions
are granted as to plaintiffs state claims.
C.

Merits of Plaintiffs State Claims

Even assuming that they were not precluded by the OTCA, plaintiffs state claims
a matter of law. Plaintiff cannot prevail on his claims for

!~lise

t~1il

as

arrest, malicious prosecution, and

Calse imprisonment for the reasons articulated in section II. Regarding plaintiff's remaining
conversion claim, there is no evidence in the record that defendants exercised "dominion and
control over a chattel which so seriously interferes with the right of another to control it that the
actor may justly be required to pay the other the full value of the chattel." Morrow v. First
Interstate Bank, N.A., 118 Or.App. 164, 171, 847 P.2cl 411 (1993). Specifically, plaintiff

acknowledges that a report emanated from OSP confirming that the second firearm he had in his
possession was stolen from the Josephine County Department of Corrections. Campbell Decl.
Attach. 3, at 6. The Court cannot conclude that plainti tT had a right control chattel that was stolen
ti·om a law enforcement agency, even accepting that he had no knowledge of its status at the time
of procurement. See FAC ,126 ("[p]laintiff was returned two holsters and one firearm"; vvhen he

Page 28- OPINION AND ORDER

"asked where the other gun was [he] was told that it had been returned to its 'rightful owner"');

see also Outdoor Media Dimensions Inc. v. Oregon, 150 Or.App. 106, 112, 945 P.2d 614, 618
(1997) (when property is lawfully taken, there is no conversion); Mustola v. Toddy, 253 Or. 658,
668, 456 P .2d 1004 (1969) (confining the scope of a conversion claim "to its narrowest possible
limits when a police officer in an emergency situation exercises control over the arrestee's
property").
Lastly, the removal of plaintiffs motorcycle from the scene of his arrest did not
constitute conversion. Such action was necessary to protect plaintiffs property interest, as his
motorcycle could neither be stored at Klamath County Jail nor left on the side of the highway.
Moreover, as Ellena repeatedly explained to plaintiff, his motorcycle was not being impounded;
it was being towed by a private company to be safely stored until plaintiff could reclaim it at a
later date. Campbell Decl. Ex A, at 1; Campbell Decl. Ex. B, at 8:16-17, 8:32. For these
additional reasons, defendants' motions are granted.
CONCLUSION

Defendants' motions for summary judgment (docs. 71, 73) are GRANTED and this case
is DISMISSED.
IT IS SO ORDERED.
DATED this/j

day of May, 2015.

United States Magistrate Judge

Page 29- OPINION AND ORDER