Evans v. Multnomah County et al

Filing 187

OPINION AND ORDER: The Court GRANTS Defendant Multnomah County's Second Motion 180 for Summary Judgment and DISMISSES this matter with prejudice. See 18-page opinion and order attached. Signed on 4/17/2013 by Judge Anna J. Brown. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL EVANS,
Plaintiff,
v.
MULTNOMAH COUNTY, DEPUTY
RICHARD HATHAWAY, DEPUTY
ROBERT GRIFFITH, OFFICER RYAN
ALBERTSON, and SERGEANT
CATHLINE GORTON,
Defendants.

BENJAMIN WRIGHT HAILE
Portland Law Collective, LLP
1130 S.W. Morrison Street, Suite 407
Portland, OR 97205
[phone]

Attorneys for Plaintiff

1 - OPINION AND ORDER

3:07-CV-01532-BR
OPINION AND ORDER

JENNY MORK

Multnomah County Attorney
CARLOS J. CALANDRIELLO
Assistant Multnomah County Attorney
501 S.E. Hawthorne, Suite 500
Portland, OR 97214
[phone]
Attorneys for Defendants Multnomah County, Deputy
Richard Hathaway, Deputy Robert Griffith, and Sergeant
Cathline Gorton
JAMES H. VAN DYKE

Portland City Attorney
DAVID A. LANDRUM
Deputy Portland City Attorney
1221 S.W. Fourth Avenue, Room 430
Portland, OR 97204
[phone]
Attorneys for Defendant Officer Ryan Albertson
BROWN, Judge.

This matter comes before the Court on Defendant Multnomah
County's Second Motion (#180)

for Summary Judgment.

For the

reasons that follow, the Court GRANTS Defendant's Second Motion.

BACKGROUND

The parties are familiar with the facts of this case from
the Court's prior Opinions and the trial in this matter.
Accordingly, the Court recites only a brief history of the case
and the facts related to the sole remaining claim in this matter.
On September 11, 2006, Plaintiff was booked into Multnornah
County Detention Center (MCDC) .

2 - OPINION AND ORDER

When Plaintiff arrived for

booking, he was contacted by Deputy Richard Hathaway and Deputy
Robert Griffith, who are Deputy Sheriffs for Multnomah County.
Deputies Hathaway and Griffith assisted in the booking process.
After a series of events, Plaintiff and the deputies began to
struggle.

Ultimately, Deputies Griffith and Hathaway grabbed

Plaintiff and pulled him to the ground.

Deputy Griffith hit

Plaintiff twice in the side as he was bringing Plaintiff to the
ground.

Deputy Hathaway gave Plaintiff several "focused blows"

in an effort to get him to comply with the deputies' orders to
lay on his stomach and put his hands behind him.

According to

Defendants, Plaintiff continued to struggle.
Eventually Sergeant Cathline Gorton, who was stationed at
her desk away from the booking area, noticed a commotion on the
television monitors at her desk and saw staff wrestling with a
combative inmate on the floor.

She went to the booking area and

saw Deputies Hathaway and Griffith and a Portland police officer
"wrestling with a guy on the floor and telling him to give them
their [sic] hands."

The only statements that Sgt. Gorton

recalled Plaintiff making during the struggle were "Fuck you," "I
own you," and "the F word

. frequently."

Sgt. Gordon

instructed Plaintiff to "stop resisting and give us his hands."
Sgt. Gorton directed another deputy to retrieve a taser from the
charging cradle because Plaintiff continued to be noncompliant.
Sgt. Gordon knew the taser did not have the cartridge in it, and,

3 - OPINION AND ORDER

therefore, it could not be used to shoot taser probes.
Nevertheless, Sgt. Gordon took the taser over to Plaintiff; bent
at the waist; and informed Plaintiff that she was going to use
the taser if Plaintiff did not stop resisting.

Sgt. Gorton

testified at trial that Plaintiff did not listen to her ''at all."
Plaintiff testified he blacked out before Sgt. Gorton informed
him that she was going to use the taser if he did not cooperate.
Plaintiff testified he ''came to with [Stg. Gorton] talking" or
"yelling something at [him]."

Sgt. Gorton testified she

activated the light on the taser, dropped to one knee, moved the
taser light across Plaintiff's face, and shined the taser light
in Plaintiff's eye stating "You see that?

That's a taser.

If

you fail to do anything that anybody asks you to do from this
point forward,

I will tase you"; i.e., her intent was to "get his

attention" and to lead him to believe she would use the taser "if
necessary" even though she knew the taser could not be fired.
Plaintiff testified Sgt. Gorton "moved the taser around quite a
bit," at times pointing the light at his nose, his eyes, and his
forehead after Plaintiff "came to."

Plaintiff then stopped

resisting, and he was escorted to a separation cell.
On September 12, 2007, Plaintiff filed a Complaint in
Multnomah County Circuit Court against Multnomah County, Sheriff
Bernie Guisto, Deputy Hathaway, Deputy Griffith, Portland Police
Officer Ryan Albertson, Sgt. Gorton, and John Does 1-3 in which

4 - OPINION AND ORDER

Plaintiff alleged claims for

(1) excessive force in violation of

his rights under the Fourth and Fourteenth Amendments pursuant to
42 U.S.C. § 1983,

(2) assault and battery under state law,

(3) malicious prosecution under § 1983, and (4) failure to train
and to supervise law-enforcement personnel.
On October 12, 2007, Defendants removed the matter to this
Court.
On October 1, 2008, Deputy Hathaway and Sgt. Gorton filed a
Motion for Partial Summary Judgment in which Sgt. Gorton moved
for summary judgment as to Plaintiff's First and Second Claims
for excessive force and assault and battery and Deputy Hathaway
moved for summary judgment as to Plaintiff's Third Claim for
malicious prosecution.

On that same day Plaintiff filed a Motion

for Partial Summary Judgment against Sgt. Gorton, Deputy
Griffith, and Deputy Hathaway as to Plaintiff's First Claim for
excessive force, against Multnomah County as to Plaintiff's
Second and Third Claims for assault and battery and malicious
prosecution under state law, and against Deputy Hathaway as to
Plaintiff's Third Claim for malicious prosecution under§ 1983.
On January 30, 2009, the Court held a hearing on the
parties' Motions.

At the hearing Plaintiff's counsel clarified

Plaintiff's Third Claim for malicious prosecution was brought
both under§ 1983 and state law and Plaintiff's Fourth Claim was

5 - OPINION AND ORDER

a Monell 1 claim against the public-body Defendants for liability
as to Plaintiff's

§

1983 excessive-force claims.

Finally,

Plaintiff's counsel confirmed all state-law claims were brought
only against the public-body Defendants and all

§

1983 claims

were brought against the individual Defendants in their
individual capacities.

Because the Court found there were

disputes of material fact concerning the physical contact that
Deputies Hathaway and Griffith had with Plaintiff during the
booking process, the Court (1) denied Plaintiff's Motion for
Partial Summary Judgment as to Plaintiff's First Claim against
Deputies Hathaway and Griffith for excessive force under

§

1983

and (2) denied Plaintiff's Motion for Partial Summary Judgment as
to Plaintiff's Second Claim for assault and battery against
Multnomah County arising from the actions of Deputies Hathaway
and Griffith.

The Court took the remaining issues under

advisement.
On April 15, 2009, the Court issued an Opinion and Order in
which it denied Plaintiff's Cross-Motion for Partial Summary
Judgment and granted in part and denied in part Defendants'
Motion as follows:
1.

The Court granted Defendants' Motion as to Plaintiff's
First Claim against Sgt. Gorton for excessive force, as
to that portion of Plaintiff's Second Claim for battery

1

Monell v. Dep't of Soc. Servs.,

6 - OPINION AND ORDER

436 U.S. 658

(1978).

related to the acts of Sgt. Gorton, and as to
Plaintiff's Third Claim against Multnomah County for
malicious prosecution under state law.
2.

The Court denied Defendants' Motion as to that portion
of Plaintiff's Second Claim for assault related to acts
of Sgt. Gorton and as to Plaintiff's Third Claim
against Deputy Hathaway for malicious prosecution under
§

1983.

With respect to Plaintiff's battery claim related to the acts of
Sgt. Gorton, the Court concluded:
As noted, Sgt. Gorton was aware the taser was not
equipped with a cartridge at the time she pointed
the taser light at Plaintiff and, therefore, she
knew she was unable to tase Plaintiff.
Thus, the
undisputed facts demonstrate Sgt. Gorton did not
intend any harmful or offensive contact resulting
from her threat to use the taser.
The Court,
therefore, concludes as a matter of law that Sgt.
Gorton's threat to use the taser was not a battery
under Oregon law.
On December 9, 2009, the parties went to trial on
Plaintiff's remaining claims.
On December 15, 2009, the jury returned a Verdict in which
it found
(1)

Plaintiff established:
(a)

Defendant Hathaway used excessive force against
him in violation of his Fourth Amendment rights;

(b)

Defendant Richard Hathaway and/or Defendant Robert
Griffith committed a battery against him in
violation of Oregon law for which Defendant
Multnomah County is liable and the battery was not

7 - OPINION AND ORDER

justified under Oregon law; and
(c)

(2)

Defendant Ryan Albertson committed a battery
against him in violation of Oregon law for which
Defendant City of Portland is liable, but
Alberston established that the battery was
justified under Oregon law.

Plaintiff did not establish:
(a)

Defendant Griffith violated his Fourth Amendment
rights;

(b)

Defendant Albertson used excessive force against
him in violation of his Fourth Amendment rights;

(c)

Defendant Catherine M. Gorton committed assault
against him in violation of Oregon law for which
Defendant Multnomah County is liable; or

(d)

Defendant Hathaway violated Plaintiff's due
process rights under the Fourteenth Amendment.

The jury declined to award punitive damages on any claim.
The jury awarded Plaintiff compensatory damages in the amount of
$250 against Defendant Hathaway on the Fourth Amendment claim and
$250 against Defendant Multnomah County as to the battery claim.
Plaintiff appealed on five grounds.
On September 14, 2012, the Ninth Circuit issued a Mandate
affirming this Court's decision as to all but a portion of
Plaintiff's battery claim and remanded this matter for the Court
to address the following limited question:
The district court ruled on the question whether
Gorton intended to tase Evans but we can find no
ruling addressing whether shining the laser in his
eye was a battery. We therefore reverse and
remand the order dismissing the battery claim
arising from Gorton's actions so the district
court can rule on this theory.
8 - OPINION AND ORDER

On December 14, 2013, Defendant Multnomah County filed a
Second Motion for Summary Judgment as to whether shining the
laser in Plaintiff's eye was a battery by Sgt. Gorton.

The Court

took Defendant's Motion under advisement on February 15, 2013.

STANDARDS

Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
States,

Washington Mut.

636 F.3d 1207, 1216 (9th Cir. 2011).

Civ. P. 56(a).

Ins. v. United

See also Fed. R.

The moving party must show the absence of a

genuine dispute as to a material fact.
673 F.3d 1218, 1223 (9th Cir. 2012).

Emeldi v. Univ. of Or.,

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and point to "specific facts demonstrating the existence of genuine issues for trial."
Oracle Corp. Sec. Litig., 627 F.3d 376, 387

"This burden is not a light one.

(9th

In re

Cir. 2010)

The non-moving party must

do more than show there is some 'metaphysical doubt' as to the
material facts at issue."

I

d.

( citation omitted) .

A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
9 - OPINION AND ORDER

Inc.,

477 U.S. 242, 248

(1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,

60 6 F. 3d 58 4,

58 7

(9th Cir. 2 010) .

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F.3d 948,

957

Ctr., Ltd. v.

Carpenters Local Union No.

Easter v. Am. W.

Fin.,

(9th Cir. 2004) (citing Sherman Oaks Med. Arts
1936, 680 F.2d 594, 598

( 9th C i r . 19 8 2 ) ) .

"A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary
judgment."

F.T.C.

v. Stefanchik,

2009) (citation omitted).

559 F.3d 924,

929

(9th Cir.

When the nonmoving party's claims are

factually implausible, that party must "come forward with more
persuasive evidence than otherwise would be necessary."
Holdings LLC v. Brekka, 581 F.3d 1127, 1137
(citing Blue Ridge Ins.

Co. v. Stanewich,

LVRC

(9th Cir. 2009)

142 F.3d 1145, 1149

( 9th C i r . 19 9 8 ) ) .
The substantive law governing a claim or a defense
determines whether a fact is material.
Prod., Inc.,

454 F. 3d 975,

987

Miller v. Glenn Miller

(9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

10 - OPINION AND ORDER

Id.

DISCUSSION

As noted, the Ninth Circuit remanded this matter for
resolution of the limited question whether shining the laser in
Plaintiff's eye was a battery.
I.

Standard

Oregon courts have defined "battery'' as an intentional tort
that "is a 'voluntary act that is intended to cause the resulting
harmful or offensive contact.'"
Or. App.

Ballard v. City of Albany, 221

630, 640-41 (2008) (quoting Walthers v. Gossett, 148 Or.

App. 54 8, 55 2,

( 19 9 7) ) .

The Oregon Court of Appeals has held

when the "physical violence exerted by the officers against [the]
plaintiff was no more than necessary to accomplish the legitimate
purpose of fulfilling their duty," the force was reasonable and
the officers did not commit assault or battery.

Gigler v. City

of Klamath Falls, 21 Or. App. 753, 763 (1975).
The Oregon Supreme Court has explained with respect to
battery that
an intentional act causing unpermitted physical
contact with the person of another does not
necessarily amount to .
. battery.
We must
distinguish between an intent to do an act which
may be wilful or wanton and which may result in
contact, on the one hand, and an act involving an
intent to cause harmful or offensive contact with
the person, on the other.
[B]attery
involves more than an intentional act.
There must
be the intent to injure.
However, the authorities
plainly indicate that the word "injure" refers to
legal injury, a violation of a protected right of
the one assaulted.
It does not necessarily mean
bodily and physical injury. An offensive
11 - OPINION AND ORDER

unpermitted touch may be a battery though no
physical damage results.
Cook v. Kinzua Pine Mills Co., 207 Or. 34, 4849 (1956).

The

court cautioned "courts have repeatedly fallen into error by
referring to intentional or wilful acts without distinguishing
between an intent to be reckless and an intent to hit the
plaintiff."

Id. at 49.

wrongful conduct:

The court identified four types of

( 1) simple negligence,

(2) gross negligence,

(3) negligence committed in a wanton manner, and (4) battery.
Id. at 58.

The court noted wanton conduct is defined as
doing
an intentional act of an unreasonable
character in disregard of a risk known to the
actor, or so obvious that he must be taken to have
been aware of it and so great as to make it highly
probable that harm would follow, usually
accompanied by a conscious indifference in
consequences.

Id. at 58-59.

Battery, on the other hand, requires "an actual

intent not only to do an act but to cause personal injury."

Id.

In addition, "Oregon law cautions that the court should only
infer .

subjective intent to cause harm or injury as a matter

of law when such subjective intent is the only reasonable
inference that may be drawn from the insured's conduct.''
Inc. v. Acceptance Cas.
3259905, at *2

Ins. Co., No. CV 09-6282-MO, 2010 WL

(D. Or. Aug. 16, 2010).

See also Redman v.

Morehead, No. 3:12-CV-11-AC, 2012 WL 1253108, at *3
Apr. 13, 2012) (same).

12 - OPINION AND ORDER

Gakk

(D. Or.

II.

Analysis

Plaintiff does not allege in his Complaint that Sgt. Gorton
acted with the intent to cause Plaintiff harm, and, the Court
agrees with Defendant that the evidence at trial failed to
establish that Sgt. Gorton was acting with the requisite intent
under Oregon law ''to cause personal injury."

Defendant contends

there is not any evidence that Sgt. Gorton used the light on the
taser for any purpose other than to get Plaintiff's attention in
an attempt to end the struggle between Plaintiff and various lawenforcement personnel.

Sgt. Gorton testified at trial that

Plaintiff did not listen to her "at all" and that she failed to
get any response from him.

At that point, Sgt. Gorton activated

the light on the taser, dropped to one knee, moved the taser
light across Plaintiff's face, and shined the taser light in
Plaintiff's eye stating "You see that?

That's a taser.

If you

fail to do anything that anybody asks you to do from this point
forward, I will tase you"; i.e., her intent was to "get his
attention" and to lead him to believe she would use the taser "if
necessary" even though she knew she could not discharge the taser
because the cartridge was missing.
Ex. 4 at 16.

Decl. of Carlos Calandriello,

The undisputed trial evidence is that Sgt. Gorton

did not have her finger on the trigger of the taser at any time
and, in fact,

she did not want to use the taser.

Decl., Ex. 4 at 17.

13 - OPINION AND ORDER

Calandriello

Thus, Defendant asserts the only permissible conclusion to
draw from the evidence at trial is that Sgt. Gorton did not have
the requisite intent to harm Plaintiff with the taser light and
that she was merely trying to get his attention.

Defendant also

contends the testimony at trial, the jury instructions, and the
jury's finding that Defendant failed to prove that Sgt. Gorton
assaulted Plaintiff preclude Plaintiff's claim for battery.
Specifically, Defendant notes the Court gave the following
instruction with respect to Plaintiff's claim for assault:
In order to prove Defendant Gorton committed an
assault against Plaintiff in violation of Oregon
law, for which Defendant Multnomah County would be
liable under Claim Two, Plaintiff must prove each
of the following elements by a preponderance of
the evidence:
1.

Defendant
intending
believe a
was about

Gorton committed an act
to cause the Plaintiff to
harmful or offensive contact
to occur; and

2.

The Plaintiff reasonably believed such a
contact was about to occur.

As noted, the jury returned a Verdict in favor of Multnomah
County as to Plaintiff's assault claim based on the actions of
Sgt. Gorton.

Although Defendant argues the Court should draw

conclusions as to what the jury must have found·to return the
defense Verdict on the assault claim and to apply those
conclusions to the remanded battery issue, the Court declines to
speculate as to the jury's Verdict on a separate claim that is
now concluded as a matter of law and, in any event, the Court
14 - OPINION AND ORDER

concludes Defendant is entitled to summary judgment on the
battery claim without reference to the assault Verdict.
Plaintiff, in turn, contends a reasonable jury could find
Sgt. Gorton intended the shining of the taser light in
Plaintiff's eyes to be offensive.

To support his position,

Plaintiff relies on Tu v. Kaiser Foundation Health Plan of
Northwest, No. 07-968-KI, 2008 WL 3871742

(D. Or. Aug. 19, 2008).

In Tu the plaintiff filed an action against the defendant for,
among other things, assault and battery.

At summary judgment the

plaintiff testified in her affidavit that a coworker, Denise
French, grabbed a "red-hot waxiron" spoon and waved it around the
plaintiff's chest and face.

The plaintiff was frightened because

French appeared upset and pinned the plaintiff against the work
bench and the plaintiff could not get away from her.

French was

much bigger than the plaintiff and said to the plaintiff, "Are
you scared? Are you scared?
I could burn you right now."

You should be.

You chicken shit.

2008 WL 3871742, at *6.

continued this behavior for five to ten minutes.
begged French to stop and to put the tool down.

French

The plaintiff
French then

pointed the hot waxiron toward her own stomach and continued the
taunting.

Tonya Swindell, a former supervisor in the department,

twice told French to put the tool down before French finally
stopped and walked away.

Id.

The court denied the defendant's

motion for summary judgment as to the plaintiff's battery claim

15 - OPINION AND ORDER

and noted "[t]his version of the events is easily adequate for a
jury to find that French intended to injure [the plaintiff] in
the sense of invading her personal space and bodily integrity, if
not to injure [the plaintiff] physically."
Based on Tu,

Id., at *21.

Plaintiff asserts it is unnecessary for a

defendant to intend to do actual physical harm, but instead a
defendant must only have the intent to offend.

The Court notes,

however, that the Oregon Supreme Court made plain in Cook v.
Kinzua Pine Mills that battery requires "intent to cause physical
injury" even if no actual physical injury occurs.
Nevertheless, Plaintiff contends Sgt. Gorton's warning could
not have been ineffective and "she could not have believed that
she did not already have [Plaintiff's] attention" because
Plaintiff was compliant and even told her that he was compliant.
In other words, Plaintiff finds significance in a factual
contention that Sgt. Gorton may have continued to flash the light
after Plaintiff allegedly complied with her commands.

As

Defendant points out, however, Plaintiff testified at trial that
he blacked out and ''came to with someone yelling something at me
at first.
left eye."

And then I saw a red light, a bright red light in my
Calandriello Decl., Ex.

9 at 2.

Defense counsel

asked Plaintiff whether Plaintiff said anything to Sgt. Gorton
before she shined the light in his eye, and Plaintiff responded:
"Before she shined - no, I was - like I said, I was out of it at

16 - OPINION AND ORDER

that point.

I came to with her talking and then shining the

laser in my face, right in my eye."
3.

Calandriello Decl., Ex. 9 at

According to Plaintiff's testimony, therefore, he did not

respond to or perceive Sgt. Gorton's initial warning about the
taser because he was blacked out at that point.

Thus,

Sgt. Gorton's trial testimony that she perceived her warning as
ineffective is not contradicted by Defendant's testimony or any
other evidence.
Plaintiff also asserts a disputed fact exists as to whether
Sgt. Gorton's intent was to get Plaintiff's attention rather than
to cause harmful or offensive contact by shining the light at
Plaintiff based on the fact that, according to Plaintiff,
Sgt. Gorton shined the light in Plaintiff's eye for 15 seconds.
As Defendant notes, however, Plaintiff testified at least three
times at trial that the light was not shined in his eye for 15
seconds, that Sgt. Gorton "moved the taser around quite a bit,"
and that at times the light was pointed at his nose and at other
times at his forehead.

Calandriello Decl., Ex. 9 at 7-8.

Plaintiff's testimony is consistent with Sgt. Gorton's testimony
that she "shined the laser light across Mr. Evans' face and in
his eye, to quickly get his attention so he would listen to her
commands."
In any event, the Court concludes none of Plaintiff's
arguments point to an evidentiary record from which rational

17 -OPINION AND ORDER

jurors could have found Sgt. Gorton intended to cause personal
injury to Plaintiff.

The Court is not aware of any Oregon case

that holds the shining of a taser light into a person's eye in
the manner described here is the type of tortious "personal
injury" for which a battery claim may lie under Oregon law.
On this record, therefore, the Court concludes Plaintiff has
not established a genuine dispute of material fact exists as to
Sgt. Gorton's intent to cause personal injury when she shined the
taser light in Plaintiff's eyes to get his attention.
Accordingly, the Court grants Defendant's Motion for Summary
Judgment as to Plaintiff's battery claim.

CONCLUSION

For these reasons, the Court GRANTS Defendant Multnomah
County's Second Motion (#180)

for Summary Judgment and DISMISSES

this matter with prejudice.
IT IS SO ORDERED.
DATED this 17th day of April, 2013.

ANNA J. BROWN
United States District Judge

18 - OPINION AND ORDER