Grainger v. Ensley et al

Filing 105

ORDER: The Court declines to adopt Judge Clarke's Findings and Recommendation 96 . The County Defendants' Motion for Summary Judgment 70 , is granted and all claims against the County Defendants are dismissed. The State Defendants' Motion for Summary Judgment 63 , is granted and all claims against the State Defendants are dismissed. Final judgment shall be entered accordingly. Signed on 11/12/2020 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

JONELL GRAINGER, as
personal representative for
the ESTATE OF JOSHUA
TODD FISCHER,
Plaintiff,
v.

No. 1:18-cv-01093-CL
ORDER

JOHN ENSLEY; ROBIN KATTER;
DYLAN ROBERTS; CURRY COUNTY;
JOHN WARD,
Defendants.
_______________________________________
McSHANE, District Judge.
Magistrate Judge Mark D. Clarke has filed a Findings and Recommendation (“F&R”), ECF
No. 96, concerning Motions for Summary Judgment filed by Defendants Robin Katter and Dylan
Roberts (collectively, the “State Defendants”), ECF No. 63, and by Defendants John Ensley, John
Ward, and Curry County (collectively, the “County Defendants.”), ECF No. 70. Judge Clarke
recommends that the State Defendants’ Motion for Summary Judgment be denied and that the
County Defendants’ Motion for Summary Judgment be granted in part and denied in part.
Under the Federal Magistrates Act, the Court may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
If a party objects to a magistrate judge’s findings and recommendations, “the court shall make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).

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For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”). Although
no review is required in the absence of objections, the Magistrates Act “does not preclude further
review by the district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154.
The Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely
objection is filed,” the court should review the recommendation for “clear error on the face of the
record.”
In this case, Defendants have filed Objections to the F&R, ECF Nos. 98, 101, and Plaintiff
has filed a Response to Defendants’ Objections, ECF No. 102. The Court has reviewed the record
de novo and, for the reasons set forth below, declines to adopt the F&R with respect to Defendants’
Motions for Summary Judgment.
DISCUSSION
As a preliminary matter, Plaintiff has withdrawn the allegations of negligent supervision
and training against Curry County. Pl. Resp. at 3 n.3. ECF No. 77. Judge Clarke recommends
that summary judgment be granted in favor of Defendant Curry County. F&R at 12. Plaintiff has
not objected to that recommendation. The Court ADOPTS Judge Clarke’s recommendation and
the claims against Curry County are DISMISSED.
With respect to the individual Defendants, two claims remain in this case: a claim for
wrongful death based on statutory liability and a claim for wrongful death based on negligence.
Second Am. Compl. ¶¶ 38-47.

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I.

Statutory Liability
To prove a claim for statutory liability, a plaintiff must establish that: (1) a statute imposed

a duty on the defendant; (2) the legislature expressly or impliedly intended to create a private right
of action for violation of the duty; (3) the defendant violated the duty; (4) the plaintiff is a member
of the group that the legislature intended to protect by imposing the duty; and (5) the plaintiff
suffered an injury that the legislature intended to prevent by creating the duty. Deckard v. Bunch,
358 Or. 754, 759-60 (2016). For this case, the statute in question provides:
Any person who is intoxicated or under the influence of controlled substances in a
public place may be sent home or taken to a sobering facility or to a treatment
facility by a police officer. If the person is incapacitated, the personal shall be taken
by the police officer to an appropriate treatment facility or sobering facility. If the
health of the person appears to be in immediate danger, or the police officer has
reasonable cause to believe the person is dangerous to self or to another person, the
person shall be taken by the police officer to an appropriate treatment facility or
sobering facility. A person shall be deemed incapacitated when in the opinion of
the police officer the person is unable to make a rational decision as to the
acceptance of assistance.
ORS 430.399(1).
Plaintiff alleges that the individual Defendants should have taken Mr. Fischer into custody
under ORS 430.399(1) as a danger to himself. As the F&R notes, the only two factors at issue are
(1) whether Defendants violated their duty by sending Mr. Fischer home, rather than transporting
him to a treatment or sobering facility; and (2) whether Mr. Fisher’s suicide was an injury the
legislature intended to prevent. F&R, at 8-9.
In this case, the individual officers testified in their depositions that they performed a
welfare check on Mr. Fischer. Ms. Katter testified that she observed Mr. Fischer’s behavior,
mannerisms, and physical condition before determining that it was safe for Mr. Fischer to walk
home by himself. While Decl. Ex. 4, at 33. ECF No. 64. Mr. Roberts testified that when he
performs a welfare check he considers whether the person is a danger to themselves or others.

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White Decl. Ex. 5, at 12. Mr. Roberts testified that, at the conclusion of the encounter, he had no
qualms about allowing Mr. Fischer to go home. Id. at 22. Mr. Roberts also testified that Mr.
Fischer’s subsequent suicide was “extremely unexpected” and that there had been no indication
during the encounter that Mr. Fischer would commit suicide. Id. at 23-24.
The Court has carefully reviewed the video evidence in this case. While Decl. Ex. 1.
Although Mr. Fischer appeared to be intoxicated at the time of his encounter, he denied using
alcohol or drugs. Mr. Fischer’s speech was clear and intelligible. He was able to answer questions
from the officers about his name, his date of birth, his occupation, and his living situation. Mr.
Fischer told the officers that he loved his job and became distressed when he believed that the
officers might take him into custody and prevent him from returning to work. He told the officers
that he needed report to work in the morning and only calmed down when the officers assured him
that they did not intend to arrest him. When the officers told Mr. Fischer that he was free to go,
Mr. Fischer stood and walked away without apparent difficulty or stumbling.
Nothing Mr. Fischer said or did during the encounter would have given a reasonable officer
cause to believe that Mr. Fischer was danger to himself or others. He did not indicate that he was
suicidal or that he intended to harm himself. On the contrary, Mr. Fischer was emphatic that he
needed to work in the morning, which would lead a reasonable officer to conclude that Mr. Fischer
did not intend to commit suicide. Although Mr. Fischer did not actually have to report to work in
the morning, that fact was not known or apparent to the officers at the time.
On this record, the Court concludes that no reasonable jury could find that the officers
violated their duty under ORS 430.399(1) by sending Mr. Fischer home. It is not, therefore,
necessary for the Court to reach the question of whether suicide is an injury ORS 430.399(1) was

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intended to prevent. Defendant’s Motions for Summary Judgment are GRANTED as to Plaintiff’s
claim for wrongful death based on statutory liability.
II.

Negligence
Plaintiff contends that Defendants conducted a negligent investigation during their

encounter with Mr. Fischer and that, had they conducted a more thorough welfare check, they
would have taken Mr. Fischer into protective custody thereby preventing his later suicide. To
establish negligence, a plaintiff must prove that the defendants’ conduct “created a foreseeable and
unreasonable risk of legally cognizable harm to the plaintiff and that the conduct in fact caused
that kind of harm to the plaintiff.” Sloan v. Providence Health Sys., 364 Or. 635, 643 (2019)
(citing Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17 (1987)). Courts must consider “the
factual setting of the case,” when deciding whether “the harm suffered by the plaintiff is of the
same general kind to be anticipated from the defendant’s allegedly negligent conduct.” Piazza v.
Kellim, 360 Or. 58, 89 (2016) (en banc). Oregon courts rarely decide issues of negligence on
summary judgment, but “a court can decide that the risk to the plaintiff caused by the defendant
was unforeseeable as a matter of law.” Miller v. Tabor West Invest. Co., LLC, 223 Or. App. 700,
711 (2008).
Oregon courts have held that “a harm may be legally unforeseeable if the defendant’s
conduct constituted ‘mere facilitation’ of [a] third person’s intervening criminal act.” Miller, 223
Or. App. at 711 (quoting Buchler v. Oregon Corrections Div., 316 Or. 499, 511-12 (1993) (en
banc)). In Estate of Manstrom-Greening v. Lane County, this Court observed that “the general
rule is that suicide constitutes an intervening force which breaks the line of causation from the
wrongful act to the death,” except in certain circumstances. Estate of Manstrom-Greening v. Lane
Cnty., 393 F. Supp.3d 1035, 1041 (D. Or. 2019) (internal quotation marks and citation omitted)

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(“Manstrom-Greening I”); see also Dunlap v. City of Sandy, Case No. 3:17-cv-01749-YY, 2018
WL 4782263, at *10 (D. Or. June 4, 2018) (“Many courts in fact have held that suicide is a
superseding intervening cause.”). This Court subsequently granted summary judgment in favor of
the defendants in Manstrom-Greening, holding that “mere facilitation” of the decedent’s
intervening suicide was insufficient to sustain a claim for negligence because the harm was
unforeseeable. Estate of Manstrom-Greening v. Lane Cnty., 430 F. Supp.3d 726, 734-35, at (D.
Or. 2019) ((“Manstrom-Greening II”). “When a plaintiff is clearly responsible for the acts that
resulted in their injury, summary judgment may be granted.” Id. at 735 (citing Vanderveen v.
Lewis, 48 Or. App. 105, 108 (1980)).
As discussed in the previous section, the officers’ encounter with Mr. Fischer did not
include any indication that Mr. Fischer was suicidal and, to the contrary, Mr. Fischer insisted that
he needed to report to work in the morning. It was not foreseeable to the officers that Mr. Fischer
would kill himself after arriving at home and, at most, the officers’ decision to let Mr. Fischer
leave amounted to “mere facilitation” of his later suicide. Defendants are therefore entitled to
summary judgment on this claim.

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CONCLUSIUON
The County Defendants’ Motion for Summary Judgment, ECF No. 70, is GRANTED and
all claims against the County Defendants are DISMISSED.1 The State Defendants’ Motion for
Summary Judgment, ECF No. 63, is GRANTED and all claims against the State Defendants are
DISMISSED. Final judgment shall be entered accordingly.
It is so ORDERED and DATED this 12th day of November 2020.
s/Michael J. McShane

MICHAEL McSHANE
United States District Judge

In August 2019, this Court adopted Judge Clarke’s previous Findings and Recommendation and dismissed
Plaintiff’s federal claims under 42 U.S.C. § 1983 and retained supplemental jurisdiction over Plaintiff’s remaining
state law claims. ECF Nos. 60, 68. The claims against Defendant John Ward concerned the dismissed federal
claims under 42 U.S.C. § 1983 and, as Plaintiff noted, Ward is not a party to the remaining state law claims. Pl.
Resp. at 2 n.2. ECF No. 77.
1

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