Roberts v. City of Beaverton Police Department
Filing
23
OPINION & ORDER: Defendant's motion for summary judgment [#10] is granted. Plaintiff's motion to amend [#21] is denied. See 19-page order attached. Signed on 4/18/2011 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JEFFERY SARGENT ROBERTS,
Plaintiff,
No. CV-10-1530-HZ
v.
OPINION & ORDER
CITY OF BEAVERTON POLICE
DEPARTMENT,
Defendant.
Jeffery Sargent Roberts
5005 Murray Blvd., #508
Beaverton, Oregon 97005
Plaintiff Pro Se
Gerald L. Warren
901 Capitol St., NE
Salem, Oregon 97301
Attorney for Defendant
1 - OPINION & ORDER
HERNANDEZ, District Judge:
Plaintiff Jeffery Roberts, appearing pro se, brings this action against the City of Beaverton
Police Department. In his one-paragraph Complaint, he contends he was wrongfully arrested and
incarcerated by officers of the Beaverton Police Department on February 7, 2010. Defendant
moves for summary judgment. I grant the motion. After briefing on the summary judgment
motion was complete, plaintiff moved to amend his Complaint. I deny the motion to amend.
BACKGROUND
In his Complaint, plaintiff contends that on February 7, 2010, at 1:15 p.m., he was
arrested on charges of driving while suspended and unlawful delivery of marijuana within 1,000
feet of a school, by Officers Matthew Henderson, Brad Sutton, and Ken Feist, who were
employees of the City of Beaverton Police Department. He further alleges he was wrongfully
incarcerated and then released, with no charges filed by the Washington County District
Attorney. He contends that as a result of the wrongful arrest, he has suffered financially and
emotionally. He seeks a judgment of $80,000, plus court costs.
In support of the motion, Henderson and Sutton submit declarations offering details of the
incident with plaintiff, along with various reports completed at the time. Those documents recite
the following chronology of events:
On February 7, 2010, at approximately 1:33 p.m., Henderson was on routine patrol near
SW 5th Street and SW Main Street, in Beaverton. Henderson Declr. at ¶ 2. He observed Roberts
get out of the driver's side of a 1993 Honda, lock the door, and walk into a residence at 5020 SW
Main Avenue. Id. Henderson made a routine check of the license plate on the car, which
showed that Roberts's Oregon driver's license had been suspended "at the misdemeanor level."
2 - OPINION & ORDER
Id.
Henderson parked his patrol car so as to observe the location. Id. at ¶ 3. During the next
ten to fifteen minutes, he watched approximately five different males come and go from the 5020
SW Main residence. Id. He thought one of those persons was Roberts. Id. Roberts appeared to
head west, to a house across the street. Id. Some of the male individuals returned to the 5020
SW Main residence, but Henderson was unsure if Roberts was one of them. Id.
Henderson then observed another male roughly matching Roberts's description, leave the
residence and get into the 1993 Honda. Id. at ¶ 4. The male individual drove the car northbound
on Main, turned left, and headed west on SW 5th. Id. Henderson drove up behind the Honda in
his marked patrol car and noted that the driver failed to completely stop at the intersection of SW
5th and SW Erickson Avenue. Id. Henderson then initiated a traffic stop and contacted the
driver who identified himself as Theodore Goodpaster. Id. Henderson noticed an overwhelming
odor of marijuana coming from the car. Id. He also noticed a marijuana pipe in the driver's door
pocket. Id.
Upon Henderson's request, Goodpaster stepped out of the car. Id. at ¶ 5. Henderson
asked if there was anything illegal in the car and Goodpaster responded that there was not. Id.
Goodpaster then indicated that there might be a marijuana pipe and he gave Henderson consent
to search the car. Id. Henderson found no marijuana in the car, but he noticed that the marijuana
odor seemed to be coming from Goodpaster rather than the car. Id. He received Goodpaster's
consent to search his person and found a small sack of marijuana in Goodpaster's waistband. Id.
Henderson advised Goodpaster of his Miranda rights and asked Goodpaster to explain
what was going on. Id. at ¶ 6. After initially stating he did not know, Goodpaster then told
3 - OPINION & ORDER
Henderson that Roberts asked Goodpaster to drive Roberts's car back to Roberts's house because
Goodpaster had a driver's license. Id.
Henderson did not think that Goodpaster was telling him the whole truth, so he asked
Goodpaster again to tell him the truth. Id. at ¶ 7. Goodpaster told Henderson that Roberts had
seen the patrol car, was worried about getting into trouble for driving while suspended, and had
left Goodpaster's house on foot. Id. Goodpaster was driving the car back to Roberts's house. Id.
Goodpaster denied knowledge of the marijuana pipe being in the car. Id.
Gooodpaster also told Henderson that Roberts had given Goodpaster the marijuana in
exchange for Goodpaster driving the car to Roberts's house. Id. at ¶ 8. Henderson asked
Goodpaster to repeat that statement, and he did. Id. Goodpaster explained that Roberts had
marijuana with him when he came into the house and he offered to give it to Goodpaster for
driving the car back to Roberts's house at a later time. Id. Goodpaster also stated that he left the
house shortly after Roberts had, and did not think that Henderson would be watching. Id.
During the time Goodpaster was talking with Henderson, Roberts walked up to the car
and indicated he was the car's owner. Sutton Declr. at ¶ 2. Department of Motor Vehicles
(DMV) records also identified Roberts as the car's owner. Id. Henderson placed Roberts in
handcuffs and advised him that he was being detained under suspicion of having driven the car
while having a criminally suspended driver's license. Id. at ¶ 3. Henderson had previously told
Sutton that Roberts had parked the car in the area of SW 5th Street and Main Avenue. Id.
Henderson read Roberts his Miranda rights and Roberts said he understood. Id. Roberts then
told both Henderson and Sutton that he had driven from his apartment on Murray Boulevard to
Goodpaster's home in the area of SW 5th and Main. Id.
4 - OPINION & ORDER
Roberts told Sutton that his driver's license had been "partially reinstated" and that he had
a letter from the DMV showing days and times he was allowed to drive. Id. at ¶ 4. He further
told Sutton that he had driven to Goodpaster's home to use his computer to look for a job because
Roberts did not have a computer. Id. Roberts stated that he had permission to drive for
purposes of using the Internet to look for a job. Id.
While Roberts and Sutton were talking, Sutton observed Roberts notice that Henderson
had placed a small baggie containing a marijuana-type substance on the hood of the patrol car.
Id. at ¶ 5. Roberts and Sutton were standing approximately twenty-five to thirty feet away from
the baggie and it was difficult to see exactly what it was from where they were standing. Id.
Roberts asked Sutton three or four times what was in the bag on the patrol car. Id. Roberts told
Sutton he wanted to know what it was because he thought it was found in his car. Id. Sutton told
him it had not been found in his car and Roberts stopped inquiring about it. Id.
Roberts, in response to a question by Sutton, denied that he used drugs, but he then stated
that he occasionally used marijuana, just not in the last few days. Id. at ¶ 6. Upon request,
Roberts voluntarily opened his mouth and allowed Sutton to look at it. Id. Sutton noticed signs,
including a white and yellowish tongue, raised taste buds, and a very dry appearance, consistent
with recent marijuana use. Id.
Sutton asked Roberts where he had come from when he walked up to the car during the
traffic stop. Id. at ¶ 7. Roberts told Sutton that Goodpaster had called him, asking him to bring
the insurance information to the traffic stop. Id.
Roberts was then arrested for the crimes of driving while suspended and distribution of a
controlled substance within 1,000 feet of a school. Id. at ¶ 8; Henderson Declr. at ¶ 13.
5 - OPINION & ORDER
Contemporaneously with these events, Goodpaster completed a "Beaverton Police
Department Statement Form" and a "Beaverton Police Department Signature Form." Exhs 2 & 3
to Henderson Declr. Both documents are dated February 7, 2011, and the Signature Form bears a
time of 1400. Id. The Statement is sworn and signed by Goodpaster. Exh. 2 to Henderson
Declr. Goodpaster recites that Roberts called to ask if he could come to Goodpaster's home to
use the computer. Id. When he arrived, Roberts asked Goodpaster if Goodpaster could drive
Roberts's car home for him because Roberts had seen a cop. Id. Roberts gave Goodpaster some
pot to drive the car home for him. Id. Goodpaster started driving the car, saw a cop who
followed him, and pulled him over. Id. The cop searched him and found the pot. Id.
Goodpaster then told the cop how he obtained the pot. Id. Goodpaster affirmatively states that
he was not forced "to do this" and "everything is true to my knowledge." Id.
In the Signature Form, Goodpaster checked a box indicating that he would testify as a
witness against Roberts when Roberts is charged with a crime. Exh. 3 to Henderson Declr. The
Signature Form contains information about initiating a false report and further states that
initiating a false report is a Class C misdemeanor. Id.
The narrative reports completed by Henderson and Sutton at the time of the incident are
consistent with the facts recited in their declarations. Exh. 1 to Henderson Declr; Exh. 1 to
Sutton Declr.
In opposition to the motion, plaintiff submits a document entitled "Affidavit of Theodore
Goodpasture [sic]." Attchmt to Pltf's "Answer" to Deft's Mtn for Sum. Judgmt. Not only is
Goodpaster's name misspelled, the document is not a sworn statement and thus, does not
constitute an affidavit. Mason v. Clark, 920 F.2d 493, 495 (8th Cir.1990) ("By definition an
6 - OPINION & ORDER
affidavit is a 'sworn statement in writing made . . . under an oath or on affirmation before . . . an
authorized officer'") (quoting Webster's Third New Int'l Dictionary 35 (1965)); Kelly v. U.S.
Bank, No. CV-08-1421-AC, 2010 WL 4135028, at *2 (D. Or. July 29, 2010) ("An affidavit is,
by definition, a statement taken under oath") (citing Black's Law Dictionary 66 (9th ed. 2009)).
Nor can the unsworn document be considered a declaration. As Judge Acosta explained
in a 2009 opinion:
While Rule 56 refers specifically to affidavits, a party may also offer unsworn
declarations in support of a motion for summary judgment provided the
declarations comply with the requirements of 28 U.S.C. § 1746. Section 1746
requires that an unsworn declaration executed within the United States include
language that “I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct,” as well as the date on which the declaration was
executed.
Kesey, LLC v. Francis, No. CV-06-540-AC, 2009 WL 909530, at *6 (D. Or. Apr. 3, 2009)
(citing 28 U.S.C. § 1746 (2007)). The document submitted by plaintiff does not contain the
language from section 1746.
The misspelling and the lack of oath or appropriate declaration raise issues regarding the
document's authenticity, Nonetheless, I consider the document because, as explained below, its
contents do not create an question of fact on the relevant issue of probable cause.
In the "affidavit," Goodpaster states that on February 7, 20111, Roberts came to his house
to use his computer to search for employment. Goodpaster "Affid." at p. 1. Goodpaster told
Roberts he wanted to watch the Super Bowl at a friend's house, but he did not have a car. Id.
Roberts offered Goodpaster the use of his own car, saying he could walk home because he did
1
Presumably, this is a typographical error and Goodpaster intended to refer to February
7, 2010.
7 - OPINION & ORDER
not live far. Id.
Goodpaster recites that Roberts left Goodpaster's residence and shortly thereafter,
Goodpaster left driving Roberts's car. Id. According to Goodpaster, he was almost immediately
stopped by Henderson for allegedly not coming to a complete stop at a stop sign at 5th and Main.
Id. Henderson asked for license, registration, and insurance information. Id. Because
Goodpaster could not find the insurance card in the car, he called Roberts to ask where it was.
Id. Roberts told Goodpaster it was in the car and after looking further, Goodpaster found it. Id.
At this point, Goodpaster states, Roberts had begun walking to where Goodpaster was pulled
over. Id.
When Roberts arrived at the scene, Goodpaster was being searched by Henderson and
Sutton who found a small amount of marijuana in Goodpaster's possession. Id. Goodpaster then
recites the following facts:
At this point, Officer Henderson asked me if I knew what kind of trouble I was
going to be in. I did not respond. Officer Henderson then said that he believed I
had been given the marijuana by Mr. Roberts. I told him that Mr. Roberts had not
given or sold me the marijuana. Officer Henderson then began insisting that I was
lying and that I had better tell him that Mr. Roberts had given me the marijuana or
I was going to be in a lot of trouble. I felt I had no choice but to tell Officer
Henderson what he insisted I say, and that was that Mr. Roberts had given me the
marijuana.
I knew what I was telling Officer Henderson was not the truth, but he
scared me into believing that I would be in a lot of trouble and would be arrested
if I did not tell him that I received the marijuana from Mr. Roberts.
I reluctantly told Officer Henderson that I had received the marijuana from
Mr. Roberts. Mr. Roberts was then arrested.
Id. at pp. 1-2.
Goodpaster then states that after receiving a subpoena to testify against Roberts before the
grand jury, he retained an attorney who advised him that he "was not in any trouble yet," but that
8 - OPINION & ORDER
he would be in trouble if he perjured himself before the grand jury. Id. at p. 2. The morning of
the grand jury, Goodpaster states he was approached in the hall by the Washington County
Deputy District Attorney who asked him if his testimony was going to be that Roberts had given
Goodpaster the marijuana. Id. Goodpaster told the Deputy District Attorney that he had not been
truthful with Officer Henderson and that he would testify before the grand jury that he had lied,
that the marijuana was his own, and that Roberts had not given or sold it to him. Id. Goodpaster
states that at that point, the Deputy District Attorney told Goodpaster that his testimony would
not be needed because he had no evidence to support the alleged crime. Id.
Based on the allegations in the Complaint, it appears that the charges against plaintiff
were not pursued by the District Attorney's office.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of "'the 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)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present "specific facts"
showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings
9 - OPINION & ORDER
and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court views inferences drawn from the facts
in the light most favorable to the nonmoving party and draws all reasonable inferences in that
party's favor. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007).
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. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
I. Motion for Summary Judgment
The Complaint refers to no particular cause of action, but given that plaintiff filed the
action in federal court, I presume, as does defendant, that he intended to assert a federal claim.
The relevant statute, 42 U.S.C. § 1983, provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law[.]
42 U.S.C. § 1983.
"To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right
secured by the federal Constitution or statutory law, and (2) allege that the deprivation was
committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063,
1067 (9th Cir. 2006).
10 - OPINION & ORDER
Plaintiff fails to identify the particular federal right at issue. Based on the facts alleged in
his Complaint, I assume he contends that his Fourth Amendment rights were violated by his
arrest, which he suggests was without probable cause.
The only defendant named by plaintiff is the Beaverton Police Department. While a city
or a county is considered a "person" under section 1983, a "police department" is not. Waggy v.
Spokane County, 594 F.3d 707, 713 (9th Cir. 2010) ("Municipalities are considered 'persons'
under 42 U.S.C. § 1983 and thus may be liable for causing a constitutional deprivation") (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)); United States v. Kama, 394 F.3d
1236, 1239-40 (9th Cir. 2005) (Ferguson, J., concurring) (municipal police departments generally
not considered "persons" within the meaning of section 1983). Thus, plaintiff has improperly
named the Beaverton Police Department as a defendant.
Even if plaintiff amended his Complaint to bring the action against the City of Beaverton
and/or the individual officers involved in the incident, defendant argues that summary judgment
is appropriate because the evidence, considered in a light most favorable to plaintiff, shows that
the officers had probable cause to arrest plaintiff. Additionally, defendant argues that plaintiff
fails to establish any City of Beaverton policy, custom, or practice of unlawful arrests which is
required to establish municipal liability.
"A warrantless arrest of an individual in a public place for a crime committed in an
officer's presence violates the Fourth Amendment if the arrest is not supported by probable
cause." Blankenhorn v. City of Orange, 485 F.3d 463, 470-71 (9th Cir. 2007); see also Cabrera
v. Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (explaining that a plaintiff must show
there was no probable cause to prevail on a section 1983 claim for false arrest).
11 - OPINION & ORDER
"The test for whether probable cause exists is whether at the moment of arrest the facts
and circumstances within the knowledge of the arresting officers and of which they had
reasonably trustworthy information were sufficient to warrant a prudent person in believing that
the petitioner had committed or was committing an offense." Blankenhorn, 485 F.3d at 471
(internal quotation and brackets omitted); see also Dubner v. City & County of San Francisco,
266 F.3d 959, 966 (9th Cir. 2001) ("Probable cause exists when, under the totality of the
circumstances known to the arresting officers (or within the knowledge of the other officers at
the scene), a prudent person would believe the suspect had committed a crime").
Law enforcement officers may rely on their experience and expertise in determining
probable cause. See United States v. Arvizu, 534 U.S. 266, 273 (2002) (holding that officers
may "draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that might well elude an untrained
person") (internal quotation omitted). The court examines events leading up to the arrest, and
then decides "whether these historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to probable cause." Maryland v. Pringle, 540 U.S. 366, 371
(2003) (internal quotation omitted).
Defendant notes that in addition to what Henderson and Sutton observed, the officers
relied on Goodpaster as a witness. Defendant argues that it was objectively reasonable for the
officers to arrest plaintiff in light of the information they possessed and the witness's statements.
I agree.
As to the drug charge, Henderson observed several male persons go in and out of
Goodpaster's residence in a short period of time. He believed one of those persons was Roberts,
12 - OPINION & ORDER
meaning that Roberts had stayed at Goodpaster's residence for a total of ten to fifteen minutes.
Goodpaster smelled of marijuana. There was a marijuana pipe in Roberts's car. The bag of
marijuana was found on Goodpaster.
At the time, Goodpaster's explanation to Henderson regarding Roberts delivering the
marijuana to Goodpaster's residence and Roberts having given it to Goodpaster in exchange for
driving the car back to Roberts's home, provided Henderson with probable cause to arrest
Roberts on the drug charge. The testimony by Goodpaster, made after he received Miranda
rights, after he had been asked to tell the truth, and then confirmed in a sworn statement at the
time of the arrest, was consistent with Henderson's previous observations and acquired
knowledge including watching Roberts enter Goodpaster's home after getting out of his car,
watching several persons come and go from the home in a short time, noting that Roberts stayed
only a short time, learning that Roberts had a suspended driver's license, and learning that Officer
Sutton disbelieved Roberts's statements that Roberts had been looking for work on the Internet
while at Goodpaster's home. Goodpaster's testimony, along with the other facts observed and
acquired by Henderson gave Henderson facts sufficient to warrant a prudent person to conclude
that Roberts violated O.R.S. 475.862 by delivering marijuana within 1,000 feet of a school.
Plaintiff suggests that Henderson should have known that Goodyear's statement was not
reasonably trustworthy because Henderson somehow badgered Goodyear into fingering Roberts
as the purveyor of the marijuana. However, Goodpaster makes no assertion that Henderson
physically abused Goodpaster in any way or otherwise acted with an intent of extracting false
information. While Henderson appears to have made Goodpaster feel uncomfortable and fearful
of his own fate, the pressure Henderson allegedly applied on Goodpaster to state that the
13 - OPINION & ORDER
marijuana belonged to Roberts does not, without more, create an issue of fabrication by
Goodpaster. Additionally, the statement provided by Goodpaster was, as noted in the previous
paragraph, consistent with the other facts Henderson independently acquired. Thus, Henderson
had probable cause to arrest Roberts on the drug charge.
As for the driving charge against plaintiff, Henderson observed plaintiff get out of the
driver's side door of a car, lock the door, and walk into the residence on SW Main. The license
plate check of the car showed that Roberts had a suspended driver's license at the misdemeanor
level. The only other information related to the driving charge that Henderson appears to have
possessed before talking to Roberts or Sutton at the traffic stop, are the statements Goodpaster
made indicating that Roberts asked Goodpaster to drive Roberts's car "back" to Roberts's house
because Goodpaster had a driver's license. Goodpaster, at this point, did not expressly tell
Henderson that Roberts had driven the car to Goodpaster's house and nothing in Henderson's
affidavit or police report affirmatively establishes that Henderson himself had witnessed Roberts
driving the car.
While Goodpaster was talking to Henderson, Roberts was talking to Sutton. Henderson
then placed Roberts in handcuffs, advised Roberts he was being detained on suspicion of driving
with a criminally suspended driver's license, and read him his Miranda rights. At this time,
Henderson had a reasonable suspicion that Roberts may have driven the car with a criminally
suspended license and thus, his investigatory detention pursuant to Terry v. Ohio, 392 U.S. 1
(1968), did not violate the Fourth Amendment. United States v. Johnson, 581 F.3d 994, 999 (9th
Cir. 2009) ("Police may detain or seize an individual for brief, investigatory purposes, provided
the officers making the stop have reasonable suspicion that criminal activity may be afoot")
14 - OPINION & ORDER
(internal quotation omitted). "Reasonable suspicion is formed by specific, articulable facts
which, together with objective and reasonable inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity." Id. (internal quotation omitted). "To
determine whether reasonable suspicion existed, the court must consider the totality of the
circumstances surrounding the stop.” Id. (internal quotation omitted). "This determination is
made with reference to the collective knowledge of the officers involved, and the inferences
reached by experienced, trained officers" Id. (internal quotation omitted).
After detaining Roberts, there were subsequent discussions between Goodpaster and
Henderson, Roberts and Sutton, and Henderson and Sutton. It was during these discussions that
Roberts told Henderson and Sutton that he had driven the car from his apartment to Goodpaster's
home. Roberts was then arrested on the driving and drug charges.
These facts raise the question of whether at the time Roberts told Sutton and Henderson
that he had driven the car to Goodpaster's home, he was actually under arrest, in which case his
statement about driving the car cannot be used to establish probable cause for that arrest, or
whether he was still subject to the investigative Terry stop, allowing Henderson to rely on the
statement to support a probable cause determination. While the question is close, I conclude that
under the totality of the circumstances, the Terry stop had not yet ripened into an arrest when
Roberts told Henderson and Sutton that he had driven the car.
Although the inquiry for determining whether an investigatory detention has ripened into
an arrest is often noted to be whether a reasonable person would conclude that he or she was not
free to leave, the standard is actually more nuanced than that. As the Ninth Circuit explained in a
2002 case,
15 - OPINION & ORDER
[t]he standard for determining whether a person is under arrest is not simply
whether a person believes that he is free to leave, . . . but rather whether a
reasonable person would believe that he is being subjected to more than [a]
temporary detention[.]" . . . Thus, whether an individual is in custody depends
upon the objective circumstances of the situation, . . . or whether a reasonable
innocent person in such circumstances would conclude that after brief questioning
he or she would not be free to leave.
United States v. Bravo, 295 F.3d 1002, 1009 (9th Cir. 2002) (internal quotations, citation, and
footnote omitted).
Here, while Roberts was handcuffed and had received Miranda warnings, he was also told
that he was only being detained, not arrested, on suspicion of the driving charge. Handcuffing
alone does not transform an investigatory stop into an arrest. Id. at 1010 (handcuffing is a
substantial factor in determining if an individual has been arrested, but it is not determinative).
Whether the suspect is transported to a different location is a relevant factor, as is the length of
time of the detention. E.g., United States v. Place, 462 U.S. 696, 709 (1983) ("the brevity of the
invasion of the individual's Fourth Amendment interests is an important factor in determining
whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion");
United States v. Doe, 219 F.3d 1009, 1014 (9th Cir. 2000) (detention rose to an arrest when the
defendant was moved to a locked detention cell).
The record discloses that the amount of time Roberts was detained as part of the
investigatory stop was several minutes at most. He was not moved into the patrol car during that
time or escorted to the police station. Given the evidence obtained by Henderson before
Roberts's arrest, particularly in regard to Roberts's possession and distribution of marijuana, it
was not unreasonable for Henderson to handcuff Roberts as a precautionary measure to prevent
destruction or wasting of any drugs or drug paraphernalia that Roberts may have had on his
16 - OPINION & ORDER
person, or to dissuade Roberts from fleeing. Under these facts, and the very short time that
expired between the initial detention and arrest, Roberts was still under an investigatory
detention that had not yet ripened into an arrest when he made his statement to Henderson and
Sutton that he had driven the car to Goodpaster's. Thus, that statement, along with the other facts
already known by Henderson and Sutton, may be relied upon to assess whether there was
probable cause to arrest plaintiff for the driving charge.
In his own "affidavit," Goodpaster offers no evidence creating a genuine dispute over
whether Roberts drove his car to Goodpaster's residence or whether Henderson observed Roberts
get out of the car there. Goodpaster states that Roberts was lending Goodpaster his car for the
day, that Roberts left Goodpaster's residence, and shortly thereafter, Goodpaster left driving
Roberts's car. Even considering Goodpaster's "affidavit," the record still establishes that at the
time of arrest, Henderson possessed facts and reasonably trustworthy information which would
lead a prudent person to believe that Roberts had committed the crime of criminal driving while
suspended under Oregon Revised Code § (O.R.S.) 811.182. Henderson had probable cause to
arrest Roberts for the driving charge.2
As to any claim brought against the municipality, plaintiff must show that a City custom
or policy caused a violation of his constitutional rights. Delia v. City of Rialto, 621 F.3d 1069,
1081 (9th Cir. 2010) (citing Monell, 436 U.S. at 690-91 (holding that a municipality is a "person"
subject to damages liability under section 1983 where it has caused a constitutional tort through
"a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that
2
Alternatively, because probable cause existed to arrest plaintiff on the drug charge, any
lack of probable cause to arrest on the driving charge is immaterial.
17 - OPINION & ORDER
body's officers")), petition for cert. filed, 79 U.S.L.W. 3480 (U.S. Feb. 3, 2011) (No. 10-1018).
In Monell, the Court specifically rejected the use of the doctrine of respondeat superior to
hold a municipality liable for the unconstitutional acts of its employees. Id. at 694. Rather,
municipalities may be held liable only when an injury is inflicted by a city's "lawmakers or by
those whose edicts or acts may fairly be said to represent official policy[.]" Id. Additionally,
while in some instances a single decision may subject a municipality to section 1983 liability,
such liability "attaches only where the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S.
469, 481 (1986).
Thus, to establish an official policy or custom sufficient for Monell liability, "a plaintiff
must show a constitutional right violation resulting from (1) an employee acting pursuant to an
expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or
custom; or (3) an employee acting as a final policymaker." Delia, 621 F.3d at 1081-82. Here,
even if plaintiff had established a violation of his Fourth Amendment rights, which he has not, he
presents no facts in support of a Monell claim against the City of Beaverton, under any of the
three recognized theories.
Finally, while it is most likely plaintiff intended to bring a section 1983 claim based on a
Fourth Amendment violation, he may also have intended to assert a supplemental state tort claim
for false arrest. However, the existence of probable cause is a complete defense to a false arrest
tort claim. Rean v. City of Portland, No. CV-08-1403-KI, 2009 WL 5066758, at *12 (D. Or.
Dec. 16, 2009) (citing Bacon v. City of Tigard, 81 Or. App. 147, 149-50, 724 P.2d 885, 886
(1986)). Defendant is entitled to summary judgment on any state law false arrest tort claim.
18 - OPINION & ORDER
II. Motion to Amend
After defendant filed its Reply Memorandum in support of its summary judgment motion,
plaintiff moved to amend his Complaint to add Henderson, Sutton, and Feist as individual
defendants. The motion fails to comply with Local Rule 7-1 requiring that every motion contain
a certificate of conferral with the opposing party, and importantly, the motion fails to comply
with Local Rule 15-1(d)(1) requiring a copy of the proposed amended pleading to be attached as
an exhibit to the motion to amend.
Nonetheless, even if the motion had complied with these rules, I would deny the motion.
As explained above, the summary judgment record establishes that the officers had probable
cause to arrest plaintiff, providing a complete defense to a section 1983 false arrest constitutional
claim and a supplemental state false arrest tort claim. Any amendment to name the individual
officers would be futile. The motion to amend is denied.
CONCLUSION
Defendant's motion for summary judgment [#10] is granted. Plaintiff's motion to amend
[#21] is denied.
IT IS SO ORDERED.
Dated this
18th
day of
April
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
19 - OPINION & ORDER
, 2011
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