Hunt v. City of Portland et al

Filing 111

OPINON AND ORDER - Hunt's Motion 93 for Reconsideration is DENIED. Dated this 24th day of September, 2010, by US Magistrate Judge John V. Acosta. (peg)

Hunt v. City of Portland et al

Doc. 111

IN THE UNITED STATES DISTRICT COURT F O R T H E DISTRICT OF OREGON P O R T L A N D DIVISION

L I N D S A Y HUNT, Plaintiff,

Case N o . 0 8 - C V - 8 0 2 - A C OPINION A N D ORDER

v.
CITY OF PORTLAND, a n O r e g o n m u n i c i p a l corporation; HUBNER, an individual; JOSEPH SCHILLING, a n i n d i v i d u a l ; E R I C HENDRICKS, an individual; BRYAN PARMAN, an individual; JUDY BRUMFIELD, a n individual, Defendants.

A C O S T A , M a g i s t r a t e Judge:
Opinion a n d O r d e r

Plaintiff Lindsay Hunt ("Hunt") moves this court to reconsider and modifY its grant o f P a g e I - OPINION A N D O R D E R

{RDT}

Dockets.Justia.com

defendant City o f Portland's ("the City") motion for summary judgment on H u n t ' s FOUlih Claim for R e l i e f f o r deprivation o f her constitutional right to free speech. For the reasons set out below, H u n t ' s motion for reconsideration is denied.
Background

I n December 2008, H u n t filed this lawsuit against the POliland Police Bureau ("Police Bureau") as well as various police officers for, inter alia, deprivation o f her constitutional right to free speech. I n her lawsuit, Hunt alleged that the City has a policy or custom o f "discouraging whistleblower activities by female police officers and covering u p officer misconduct including C o n s t i t u t i o n a l a n d c r i m i n a l v i o l a t i o n s " a n d t h a t t h e City w a s a c t i n g i n a c c o r d a n c e w i t h t h i s c u s t o m or policy when it engaged i n retaliatory acts against her. The City subsequently argued that because Hunt, as a probationary officer, was required to repOli misconduct, she was not entitled to constitutional protection and moved the cOUli for summary j u d g m e n t o n this issue. This court began its consideration o f the C i t y ' s motion for summmy judgment b y analyzing two factors. First, it analyzed whether, as a public employee, H u n t ' s speech regarding misconduct within the Police Bureau qualified as communication by a private citizen o f information o f a concern to the general public and was, therefore, constitutionally protected. See Connickv. }.1yers, 461 U.S. 138, 146 (1983). Second, the cOUli analyzed whether, as a public employee, H u n t ' s speech was pursuant to h e r official duties and was, therefore, not constitutionally protected. See Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006). Ultimately, this cOUli concluded that it need not reach a

decision regarding the first factor because i t found that, as a matter o f law, Hunt reported Police Bureau misconduct pursuant to h e r official duties as a police officer. Because this court determined that the evidence was such that no reasonable j u r y could r e t u m a verdict for the non moving pmiy, {RDT}

Page 2 - OPINION AND ORDER

the City was entitled to s u m m m y j u d g m e n t o n H u n t ' s F o m i h Claim for R e l i e f for violations o f the F i r s t Amendment. H u n t ' s current motion asks this court to reconsider and modifY its grant o f the C i t y ' s m o t i o n f o r s u m m a r y j u d g m e n t o n h e r F o u r t h C l a i m for R e l i e f i n l i g h t o f H u n t ' s r e c e n t d i s c o v e l y o f t h e c a s e

P o s e y v. Lake P e n d Oreille Sch. Dist. No. 84., 546 F J d 1121, 1131 (9th Cir. 2008). This case was
not referenced by the parties in their briefs nor b y this court in its ruling. H u n t argues that, under

Posey, a g r a n t o f s u m m m y j u d g m e n t o n h e r F i r s t A m e n d m e n t c l a i m i s i n a p p r o p r i a t e b e c a u s e t h e
question o f o n e ' s "official j o b duties" is a factual detennination to be resolved b y a jUlY.

Legal Standard
A party m a y s e e k reconsideration o f a ruling o n a summary j u d g m e n t m o t i o n u n d e r either FED. R. ClV. P. 59(e) or FED. R. CIV. P. 60(b). A motion for reconsideration u n d e r FED. R. CIV. P. 59(e) m u s t be filed no later t h a n 28 days after the e n t l y o f a j u d g m e n t while motions u n d e r FED. R. CIV. P. 60(b) m u s t be filed within a reasonable time, w i t h a n outside limit o f one year after e n t l y o f j u d g m e n t for m o t i o n s b r o u g h t u n d e r s u b s e c t i o n s ( l ) t h r o u g h ( 3 ) o f R u l e 60(b). T h e district court generally applies the same analysis under both lUles, and its decision is reviewed for abuse o f discretion. See Fidelity Federal Bank, F.S.B. v. Durga M a CO/p., 387 F J d 1 0 2 1 , 1 0 2 3 (9th Cir. 2004) (discussing R u l e 60(b)); Fuller v. lV/G. J e w e b y , 950 F.2d 1437, 1441 (9th Cir. 1991) (discussing Rule 59(e)). Three major grounds justifY reconsideration: " t h e district court (1) is presented w i t h newly d i s c o v e r e d evidence, (2) committed clear error o r the initial d e c i s i o n w a s m a n i f e s t l y u n j u s t , o r ( 3 ) there i s a n i n t e r v e n i n g c h a n g e i n c o n t r o l l i n g l a w . " S c h o o l

Dist. No. 11, Multnomah County v. ACandS, Inc., 5 F J d 1255, 1263 (9th Cir. 1993) (citing A l l Hawaii Tours, CO/po v. Polynesian Cultural Center, 116 F.R.D. 645, 648 (D. Hawaii 1987), r e v ' d

Page 3 - OPINION A N D O R D E R

{RDT}

on other grounds, 855 F . 2 d 860 (9th Cir. 1988)). Reconsideration is the exception; as the N i n t h
C i r c u i t h a s o b s e r v e d , r e c o n s i d e r a t i o n i s w a r r a n t e d o n l y b y t h e s e a n d " [ 0] t h e r , h i g h l y u n u s u a l , circumstances." School Dist. No. l J , 5 F.3d at 1263. See also Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (noting that Rule 59(e) "offers an ' e x t r a o r d i n a t y remedy, t o be used sparingly i n the interests o f finality and conservation o f judicial resources,'" citing 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 59.30[4] (3d ed. 2000)). Rule 60(b)(1) specifically allows a COUlt to correct a final j u d g m e n t where the j u d g m e n t w a s b a s e d o n " m i s t a k e , i n a d v e l t e n c e , surprise, o r e x c u s a b l e n e g l e c t . " H o w e v e r , t h e p a t t i e s are l i m i t e d to the arguments previously made and addressed b y the COUlt. " A m o t i o n for reconsideration is a n improper vehicle to tender n e w legal theories n o t raised in opposition to s u m m a t y j u d g m e n t . " A l l

Hawaii Tours, 116 F.R.D. at 650. T h e decision to correct a j u d g m e n t for mistake o r inadvertence,
whether made by a p a t t y o r the COUlt, rests i n the discretion o f the trial court. Fidelity Fed. Bank,

F . S . B . , 3 8 7 F . 3 d a t 1024.
Rule 60(b) contains a catchall provision, found i n subsection six, w h i c h allows a COUlt to correct a j u d g m e n t " f o r any other reason that justifies relief." To qualitY for r e l i e f u n d e r t h i s provision, a p a t t y m u s t " e s t a b l i s h the existence o f extraordinaty circumstances w h i c h prevented o r rendered h i m unable to prosecute a n appeal." }yfartella v. Marine Cooks & Stewards Union,

Seafarers Int'! o f N . A m . , 448 F . 2 d 729, 730 (9th Cir. 1971). Discussion

I.

P l a i n t i f f s Request for Reconsideration
H u n t d o e s n o t s t a t e w h i c h g r o u n d for r e c o n s i d e r a t i o n g o v e r n s h e r m o t i o n , b u t , g i v e n h e r

r e l i a n c e o n t h e P o s e y case, s h e p r e s u m a b l y r e l i e s o n t h e t h i r d g r o u n d - t h a t t h e r e h a s b e e n a n {RDT}

Page 4 - OPINION AND O R D E R

intervening change in controlling law.! The Posey case, however, falls shOtt o f reflecting a n intervening change in controlling law for several reasons. First, Posey is not new case law that was decided after this COUlt originally granted summaty j u d g m e n t for the City. See Blockv. Multnomah County, No. 03-CV-6261-MO, 2004 WL 2075416, a t *2-3 (D. Or. Sept. 1 4 , 2 0 0 4 ) (explaining that although a case that was decided after the cOUlt had granted summary judgment was new case law, it was n o t strongly convincing and thus did n o t justifY reconsideration). Second, H u n t ' s failure to cite the decision earlier presents insufficient cause to grant reconsideration now. Regence Group v. TIG Speciality Ins. Co., No. 07-CV-1337-HA, 2010 WL 476646, a t *2 (D. Or. Feb. 4, 2010). Further, assuming that Posey did represent n e w case law, the holding i n that case does not c h a n g e t h e F i r s t A m e n d m e n t a n a l y s i s t h a t t h i s c o u r t e m p l o y e d i n its o r i g i n a l o p i n i o n . I n P o s e y , t h e court held that " w h e n there are genuine and material disputes as to the scope and content o f the p l a i n t i f f s j o b responsibilities, the court m u s t reserve judgment o n this . . . prong o f the protected status i n q u h y until after the fact-finding process." 546 F.3d a t 1131. In its initial consideration o f the C i t y ' s motion for summaty judgment, however, this court detelmined that there were no genuine and material disputes as to the scope and content o f the p l a i n t i f f s j o b responsibilities. Thus, s u m m a r y j u d g m e n t w a s appropriate.

II.

The City's Motion for Summary Judgment
Even i f this court assumes that reconsideration is allowed, it finds, once again, that its grant

o f the C i t y ' s motion for summaty judgment is appropriate. H u n t alleges that this COUlt erred i n

! H u n t ' s motion does not address the first major justification in that it presents no new evidence. In addition, as explained below, the second major justification does n o t apply because this court's grant o f the C i t y ' s motion for summaty judgment is neither clear en'or nor manifestly unjust. P a g e 5 - OPINION AND O R D E R {RDT}

granting the C i t y ' s motion for summmy judgment on H u n t ' s FOutih Claim for R e l i e f f o r violations o f the First Amendment. She argues that, under Posey, when there is a genuine issue o f material fact as to the scope or nature o f o n e ' s j o b duties in a First Amendment case, "the c o u t i m u s t reserve judgment . . . until after the fact-finding process." 546 F J d a t 1131. Hunt further argues that a genuine issue o f material fact regarding h e r j o b duties exists in this case for several reasons. First, when determining that her speech was pursuant to her official duties as a police officer, the court failed to appreciate that under Garcetti, o n e ' s " o f f i c i a l j o b duties" are o n e ' s real j o b duties and that r e l i a n c e o n w r i t t e n j o b d e s c r i p t i o n s is " n e i t h e r n e c e s s m y n o r s u f f i c i e n t " e v i d e n c e o f o n e ' s " o f f i c i a l j o b duties." Garcetti, 547 U.S. at 424-425. Second, Hunt offered significant evidence that her officiallrealjob duties included complying with a "code o f silence." Thus, under Posey, and viewing the facts i n favor o f the non-moving party, Hunt asserts that this couti should reconsider its grant o f the C i t y ' s motion for summmy judgment because there is an issue o f fact regarding whether r e p o r t i n g p o l i c e o f f i c e r m i s c o n d u c t w a s o r was n o t p a r t o f H u n t ' s " o f f i c i a l j o b d u t i e s . " However, in its initial consideration o f the C i t y ' s m o t i o n for summary judgment, this couti did precisely what Hunt argues it failed to do. In its analysis, the court specifically recognized t h a t " t h e i n q u i r y i n t o w h e t h e r a p u b l i c e m p l o y e e ' s s p e e c h i s p u r s u a n t to e m p l o y m e n t d u t i e s i s a p r a c t i c a l one and that w r i t t e n j o b descriptions are neither necessary nor sufficient to prove that a certain task falls within the scope o f a public employee's duty for First Amendment purposes." Hunt v. City o f

Portland, No. 08-CV -802-AC, 2010 W L 1609568 at *27 (relying o n Garcetti, 547 U.S. at 424-425).
Rather, "[t]he couti must consider all o f the relevant evidence to determine the extent o f a public employee's j o b obligations." Hunt, 2010 WL 1609568, at *27. With this in mind, the court then analyzed the scope o f H u n t ' s j o b duties.

P a g e 6 - OPINION AND O R D E R

{RDT}

Hunt appears to concede that, generally, a police officer is officially obligated to report unlawful conduct and misconduct to her superiors and that H u n t was initially held to these same obligations. Moreover, Hunt does not dispute that the C i t y ' s rules required her to report

inappropriate behavior and misconduct or that, as a police officer, she was responsible for the enforcement o f statutes and laws. Further, neither Officer Shilling nor Officer Pintarich had the authority to alter H u n t ' s official duties under state l a w or Police Bureau policy. Thus, neither Officer S c h i l l i n g ' s " I h a v e a j o b " s p e e c h n o r O f f i c e r P i n t a r i c h ' s s t a t e m e n t t h a t i t was n o t H u n t ' s j o b to " p o l i c e t h e p o l i c e " a l t e r e d h e r official obligations. Additionally, Officer H o ' s conduct could be viewed as a violation o f state law. Hunt complained, for instance, that Officer H o refused to weal' his seat belt, ran red lights while driving, and took items from a 7- Eleven store without paying. Also, Officer H o ' s asking for identification during conversation stops, use o f excessive force, and failure to properly handle evidence all have constitutional implications. Hunt acknowledges as much i n her allegations that the City discouraged h e r from reporting, and covered up, officer misconduct consisting o f Constitutional and criminal v i o l a t i o n s . F u r t h e r m o r e , H u n t ' s o t h e r c o m p l a i n t s to h e r s u p e r v i s o r s r e g a r d i n g O f f i c e r H o ' s l a c k o f knowledge about, and failure to follow, repOlirequirements are evidence o f Officer H o ' s misconduct within the Bureau and relate specifically to his qualifications as H u n t ' s training officer. Finally, H u n t argues that summary judgment is inappropriate because she refused to engage in wrongful conduct and such refusal is never part o f a n employee's official j o b duties. H u n t relies on Fierro v. City o f N y., 591 F. Supp. 2 d 431, 444 (S.D.N.Y. 2008), wherein the court held that a p u b l i c e m p l o y e e ' s " r e f u s a l to c o m m i t w r o n g f u l a c t s a s d i r e c t e d b y h i s s u p e r v i s o r w a ~ n o t m a d e i n the context o f a strictly employer-employee dispute, b u t was spoken as a citizen rejecting the c o n u p t

P a g e 7 - OPINION A N D O R D E R

{RDT}

direction o f a supervisor." T h e court therefore held that refusing to lodge false accusations against a f e l l o w t e a c h e r w a s p r o t e c t e d u n d e r the F i r s t A m e n d m e n t . l d H u n t a l l e g e s t h a t h e r r e f u s a l t o falsifY reports and destroy evidence is therefore conduct that i s entitled to protection. However, the e v i d e n c e e s t a b l i s h e s t h a t H u n t d i d n o t r e f u s e t o e n g a g e i n s u c h acts. R a t h e r , s h e a d m i t t e d t h a t s h e complied with Ho's directions by failing to properly preserve evidence and by filing a false police repOli. Because H u n t has acknowledged that she engaged in t h e wrongful acts rather than refusing to do so, the holding in Fierro does n o t apply to her s i t u a t i o n ? Once again, this court therefore finds as a matter o f l a w that all o f this communication w a s made by H u n t pursuant to h e r j o b duties and in her official capacity as a probationaty police officer. A c c o r d i n g l y , t h i s c o u r t a f f i r m s its p r i o r ruling.

Conclusion
H u n t ' s m o t i o n (#93) f o r r e c o n s i d e r a t i o n is DENIED.

refusal t o e n g a g e i n m i s c o n d u c t w a s n o t a p a r t o f H u n t ' s o f f i c i a l j o b d u t i e s , t h e cOUli reiterates that this finding is n o t inconsistent w i t h the cOUli's prior conclusion t h a t h e r patiicipation i n some instances o f the wrongful conduct that she repOlied does n o t bat· her from the protection o f OR. REv. S T A T . 695A.206(5). P a g e 8 - O P I N I O N AND O R D E R {RDT}

2 Although