Chasse et al v. Humphreys et al

Filing 734

Opinion and Order. The Court grants Humphrey's and Nice's summary judgment motion 640 on plaintiffs' equal protection claim. Signed on 9/1/09 by Judge Garr M. King. (ljl)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tom Steenson STEENSON, SCHUMANN, TEWKSBURTY, CREIGHTON & ROSE, P.C. 500 Yamhill Plaza Building 815 S.W. Second Avenue Portland, Oregon 97204 Attorney for Plaintiffs James G. Rice DEPUTY CITY ATTORNEY David A. Landrum DEPUTY CITY ATTORNEY OFFICE OF CITY ATTORNEY 1221 S.W. Fourth Avenue, Room 430 Portland, Oregon 97204 Attorneys for City Defendants /// /// /// 1 - OPINION & ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JAMES P. CHASSE, JR., et al., ) ) Plaintiffs, ) ) v. ) ) CHRISTOPHER HUMPHREYS, et al.,) ) Defendants. ) )

No.

CV-07-189-HU

OPINION & ORDER

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Agnes Sowle COUNTY ATTORNEY Susan M. Dunaway ASSISTANT COUNTY ATTORNEY 501 S.E. Hawthorne Blvd., Suite 500 Portland, Oregon 97214-3587 Robert E. Barton COSGRAVE VERGEER KESTER, LLP 805 S.W. Broadway Portland, Oregon 97205 Attorneys for Bret Burton & Multnomah County James P. Martin Kari A. Furnanz HOFFMAN HART & WAGNER, LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Attorneys for Sokunthy Eath & Patricia Gayman James L. Dumas Sheri C. Browning LINDSAY, HART, NEIL, & WEIGLER LLP 1300 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97201 Attorneys for AMR Defendants KING, District Judge: In this civil rights action, plaintiffs bring several claims against various groups of defendants, including the City Defendants (Humphreys, Nice, City of Portland, Tri-Met, Potter & Sizer), the County Defendants (Burton & Multnomah County), the County Nurses (Eath & Gayman)1, and the AMR Defendants (AMR, Stucker, and

Hergert).

The claims arise from a September 17, 2006 incident in

which James P. Chasse, Jr. (Chasse), died in police custody. All of the parties have moved for summary judgment as to certain claims. As a result of previous orders, there are only

The County Defendants and the County Nurses were dismissed from the case on August 17, 2009. 2 - OPINION & ORDER

1

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certain parts of some motions presently requiring resolution. Those are: (1) the motion by Humphreys and Nice against

plaintiffs' Equal Protection claim; (2) the motion by plaintiffs against the AMR Defendants' affirmative defenses; and (3) the motion by Hergert and Stucker as to some of plaintiffs' claims. This Opinion & Order addresses only the motion by Humphreys and Nice as to the Equal Protection claim. The cross-motions between

plaintiffs and the AMR Defendants will be addressed separately, at a later date. STANDARDS Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the

initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "If the moving party meets its initial burden of showing 'the absence of a material and triable issue of fact,' 'the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and Celotex, 477 U.S. at

designate facts showing an issue for trial. 322-23. 3 - OPINION & ORDER

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The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors All reasonable doubts as

Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

to the existence of a genuine issue of fact must be resolved against the moving party. Radio, Matsushita Elec. Indus. Co. v. Zenith The court should view inferences

475 U.S. 574, 587 (1986).

drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.

If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural

Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). DISCUSSION In their Fifth Claim for Relief, plaintiffs allege that Humphreys and Nice violated Chasse's Fourteenth Amendment rights because they discriminated against him, or caused the

discrimination against him, on the basis that he was mentally ill or perceived to be mentally ill. Am. Compl. at ¶ 106.

The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend XIV, § 1. As the Supreme Court has

noted, this "is essentially a direction that all persons similarly situated should be treated alike." Cleburne Living Center, 473 U.S. City of Cleburne, Tex. v. 432, 439 (1985); see also

Merrifield v. Lockyer, 547 F.3d 978, 992 (9th Cir. 2008) (Equal 4 - OPINION & ORDER

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Protection Clause requires that similarly situated persons be treated equally). Because the Equal Protection Clause the protects in against equal

classification-based

discrimination,

issue

many

protection claims is whether a governmental policy or practice contains inappropriate classifications. See Clark v. Jeter, 486

U.S. 456, 461 (1988) (in equal protection clause analysis, courts look at different types of government classification and apply different levels of scrutiny in evaluating constitutionality of such classifications); see also Martin v. California Dep't of Veterans Affairs, 560 F.3d that 1042, 1049 (9th Cir. 2009) ("'A

governmental

policy

purposefully

treats

the

disabled

differently from the non-disabled need only be rationally related to legitimate legislative goals to pass constitutional muster.'") (quoting Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)). In the claim at issue in this motion, however, the allegation against Humphreys and Nice does not involve a government policy classification. Plaintiffs do not contend, as to these individual

defendants, that they acted pursuant to an unconstitutional policy or practice. Rather, the claim is that Humphreys and Nice engaged

in certain conduct directed at Chasse (for example, choosing to stop him, chasing him, tackling him, failing to send him to the hospital in an ambulance from NW Everett and NW 13th, failing to obtain prompt medical attention for him at the jail, and then driving Chasse to Portland Adventist instead of a closer hospital), because of his mental illness. While not labeled as such by the parties, I view this as a 5 - OPINION & ORDER

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selective enforcement claim. That is, Humphreys and Nice allegedly chose to question Chasse and then engage in the other conduct described above, because he was mentally ill and would not have done so but for his mental illness. This is no different from the

selective enforcement or prosecution claims which allege that the police stopped someone because of his or her race. To prevail City on this equal protection claim must against show the that

individual

police

officers,

plaintiffs

Humphreys's and Nice's conduct had a discriminatory effect and that they possessed a discriminatory motive. Rosenbaum v. City & County of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007); see also Wayte v. United States, 470 U.S. 598, 608 (1985) (standards for selective prosecution claims require a showing of both a

discriminatory effect and motivation by a discriminatory purpose); Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 534 (6th Cir. 2002) of (noting facially that "a claimant criminal alleging laws must

selective

enforcement

neutral

demonstrate that the challenged law enforcement practice 'had a discriminatory effect and that it was motivated by a discriminatory purpose[;]' further noting that this analytical framework has been applied in the of Sixth and other circuits in cases involving practices)

allegations

discriminatory

police

enforcement

(quoting Wayte, 470 U.S. at 608). To establish discriminatory effect, plaintiffs must show that similarly situated individuals were treated differently. States v. Armstrong, 517 U.S. 456, 465 (1996). United

In the context of

the instant claim, plaintiffs must show that similarly situated individuals who were not mentally ill, were not subject to the 6 - OPINION & ORDER

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offensive conduct.

As discussed below, plaintiffs here fail to

make that showing, or to create a genuine issue of fact precluding summary judgment, on the discriminatory effect prong of the

analysis. In the City Defendants' memorandum in support of the motion, the City Defendants raise several arguments, including that

"plaintiffs have failed to establish an essential element of a prima facie equal protection discrimination case: That Chasse was

treated differently than similarly situated citizens who were not living with mental illness." City Defts' Mem. at p. 11. The City

Defendants further argue that there is no evidence that Humphreys and Nice intended to treat Chasse differently than others similarly situated based on his mental illness because Humphreys and Nice had not seen Chasse before September 17, 2006, and did not know that he was mentally ill. In response, plaintiffs put forth evidence and argument on the knowledge and intent issue. They fail to address the

discriminatory effect element. Nonetheless, in liberally reading plaintiffs' opposition

memorandum, I have found three assertions that could possibly suggest an issue of fact about Humphreys's and Nice's, or the Portland Police Bureau's, treatment of others. The record,

however, is insufficient to preclude summary judgment. First, at page fifteen, footnote ten of their memorandum, plaintiffs assert that when Humphreys first spotted Chasse at Northwest 18th Avenue, "Nice was attending to a stumbling, falling down, apparently not mentally ill drunk, who he allowed to walk home rather than arrest for being drunk in public or taking him to 7 - OPINION & ORDER

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a detox center, as Nice could have."

Pltfs' Mem. at p. 15 n.10.

In support of this assertion, plaintiffs cite to their Concise Statement of Facts (CSF) at ¶¶ 6 and 10.2 Paragraph 6 asserts that

"At 5:09 p.m. . . ., Humphreys and Burton parked at NW 18th & Everett to assist Nice with an intoxicated person who had stumbled and fallen." Pltfs' CSF at ¶ 6 (dkt #709). In support of this Id. to the

statement, plaintiffs cite to "Id., pp. 3-4, PE 7, p 3." Because I interpret a cite to "Id." as a cite

immediately preceding cited material, I understand the "Id." at the end of paragraph 6 to refer to the previously cited exhibit. this instance, there are five exhibits cited at the end In of

plaintiffs' asserted fact in paragraph five. unnecessary burden on the Court.

This creates an

I have no idea which of these

five exhibits plaintiffs rely on for the asserted fact in paragraph six. Thus, I have looked at all five of the exhibits, which are

Plaintiffs' Exhibits 6, 9, 6 (under seal), 49 (under seal), and 50 (under seal). Notably, none of the them contain pages 3-4, and

none of them support the asserted fact. Plaintiffs also cite to Plaintiffs' Exhibit 7. There is no

Plaintiffs originally submitted two separate fact statements, one filed under seal (dkt #715), and the other filed for public access (dkt #709). The two filings created unnecessary confusion for the Court. As a result, I asked plaintiffs to merge or "blend" the two documents into one, and to submit a judge's copy to the Court, and provide one to opposing counsel. Unfortunately, the timing of this request and the delivery to opposing counsel was too late for opposing counsel to be assisted by it. Thus, I have relied on the fact statements as originally filed. In the future, I request that plaintiffs simply file one document and if it contains material which should be filed under seal, the entire document should be filed under seal. 8 - OPINION & ORDER

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Plaintiffs'

Exhibit

7

in

this

summary

judgment

record.

See

Steenson Declr. in Opp. to Motion for SJ (dkt #710) at page 2 (stating that Plaintiffs' Exhibit 7 is "Not Submitted."). The

citations for the asserted fact in plaintiffs' paragraph six do not support the assertion. Moreover, the asserted fact states only

that Nice was with an intoxicated person who had stumbled and fallen. This alone does not supply an adequate comparator. The

asserted fact does not indicate that the intoxicated person was not mentally ill. Thus, even if there were evidence in this summary

judgment record to support the asserted fact, the asserted fact is insufficient evidence of Humphreys's and Nice's different treatment of a similarly situated person. The other citation in plaintiffs' memorandum in support of their assertion that Nice treated the intoxicated person

differently, is to plaintiffs' paragraph ten.

There, plaintiffs

assert, in relevant part, that "[a]fter Nice let the intoxicated person walk home, . . . ." Pltfs' CSF at ¶ 10 (dkt #709). In

support of this assertion, plaintiffs cite to Plaintiffs' Exhibit 4, at pages 4 and 8. Id.

Plaintiffs' Exhibit 4 is an excerpt of a transcript of a statement Humphreys made a few days after the Chasse incident. is not paginated. It

On what I count as pages four and eight, there

is no testimony by Humphreys about Nice having let an intoxicated person walk home. On the transcript's internally labeled page

four, there is some testimony about the intoxicated person, but it is crossed out. It is still legible, however, and states that Nice

was contacting a visibly intoxicated subject, that the intoxicated subject Nice was contacting was seated on the stairs, and Nice was 9 - OPINION & ORDER

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talking to him.

Pltfs' Exh. 4.

There is nothing more about the

person on the page.

On the transcript's internally labeled page As with

eight, no statements about the intoxicated person appear.

the other citations in support of plaintiffs' assertion that the individual officers treated a similarly situated non-mentally ill person differently, the citation to Plaintiffs' Exhibit 4 does not support the assertion. Plaintiffs fail to create an issue of fact

on the "discriminatory effect" prong of the analysis with the assertion based on allegedly different treatment of an intoxicated, allegedly non-mentally ill subject. The next possible statement by plaintiffs that could suggest different treatment of similarly situated non-mentally ill persons, is plaintiffs' argument that Humphreys's use of a "spit sock" on Chasse could be viewed by the jury as evidence of discriminatory intent "given that there is no evidence of spit socks being used by the [Portland Police Bureau] PPB under any other circumstances." Pltfs' Mem. at p. 18. Although plaintiffs make this argument in support of the discriminatory motive prong of the selective enforcement analysis, I have considered it as to the discriminatory effect prong as well. However, plaintiffs cite to no evidence in the record supporting this statement and I have found no facts in either of plaintiffs' fact statements (dkt #s 709, 715) mentioning the PPB's use, or nonuse, of spit socks. Thus, this assertion is completely

unsupported. The third possible statement by plaintiffs that could support their burden on the discriminatory effect issue, is the assertion, again made by plaintiffs on the discriminatory intent part of the 10 - OPINION & ORDER

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analysis, that Nice instructed the attending paramedic at NW 13th and Everett, to get Humphreys to sign a "transport refusal form" provided by the paramedics, and that this "was the first and only know[n] occasion on which such a form has been signed by an officer." Pltfs' Mem. at p. 19. Id. In support, plaintiffs cite to

"Id.", and "Id., ¶ 38."

I assume the "Id." citation refers to

plaintiffs' fact statement, the previous non-Id. cite at the conclusion of the preceding paragraph. Plaintiffs' fact statement, at paragraph thirty-eight, asserts that "[n]o PPB officer has signed or been asked to sign an 'Info Form' like Humphreys did." Pltfs' CSF at ¶ 38 (dkt #709). In support, plaintiffs cite to

Plaintiffs' Exhibit 59, at pages 56-57. Plaintiffs' Exhibit 59 is an excerpt from the deposition testimony of Jose E. Gonzalez. Aside from the discrepancy between

the assertion in the memorandum of the form in question being a "transport refusal form," and the form noted in the fact statement as being an "Info Form," the testimony does not support the assertion. Steenson identifies the exhibit as being the excerpts of deposition testimony of PPB Sergeant Jose Gonzalez. Declr. at p. 5 (Dkt #710). Steenson

The deposition excerpt itself includes

no identifying information about Gonzalez and no information about his duties. The cited excerpt includes a statement by Gonzalez Gonzalez does

that he received a "Contact report" from Humphreys.

not refer to it as an "Info Form," or a "transport refusal form." He states that he received from Humphreys an emergency medical service information form in the name of John Doe that was signed with an unknown signature. 11 - OPINION & ORDER Pltfs' Exh. 59 at p. 56. Gonzalez gave

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the form to the detective.

Id.

He testified that he had never

seen a form like that before, that he had never signed a form like that before, and that he had not seen an officer sign a form like that before. Id. at pp. 56-57. He also testified that he had not

heard of emergency medical personnel asking or giving such a form to an officer to sign. Id. at p. 57.

While this testimony establishes that the alleged use of the form (whichever form it actually is) in this manner is unfamiliar to Gonzalez, this testimony does not support plaintiffs' assertion that no PPB officer has signed or been asked to sign an "Info Form" like Humphreys did. Plaintiffs' assertion simply goes too far.

In summary, on the discriminatory effect part of the selective enforcement equal protection analysis, plaintiffs fail to create a question of fact on the issue of whether Humphreys and Nice treated similarly situated, non-mentally ill, individuals differently. Plaintiffs' memorandum omits any argument on the issue and while I have attempted to glean some possible assertions in plaintiffs' memorandum that might be relevant to this issue, the factual record fails to support the assertions. Because of my conclusion on discriminatory effect, I need not address the discriminatory intent prong of the analysis. Even if

plaintiffs created an issue of fact regarding what Humphreys or Nice knew of or learned regarding Chasse's mental illness on September 17, 2006, and even if that knowledge and other evidence in the record created a question of fact on the issue of

Humphreys's or Nice's discriminatory intent or motive, Humphreys and Nice are entitled to summary judgment on the equal protection claim based on plaintiffs' failure to create an issue of fact 12 - OPINION & ORDER

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regarding discriminatory effect. CONCLUSION I grant Humphreys's and Nice's summary judgment motion (#640) on plaintiffs' equal protection claim. IT IS SO ORDERED. Dated this 1st day of September , 2009.

/s/ Garr M. King Garr M. King United States District Judge

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