Garcia-Herrera v. City of Salem et al

Filing 78

Opinion and Order: The Court GRANTS in part and DENIES in part Defendants' Motion for Partial Summary Judgment 52 . The Court directs counsel to confer and to file no later than March 22, 2013, a jointly proposed schedule for the follow ing final pretrial and trial proceedings and for proposed deadlines for related submissions as described in this Order. The Court will schedule a Rule 16 Conference to set a final case-management schedule after receiving the parties' March 22, 2013, submission. Signed on 03/11/2013 by Judge Anna J. Brown. See attached 6 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RUBEN ANTONIO GARCIA-HERRERA,

3:11-CV-00055-BR

Plaintiff,

OPINION AND ORDER

v.
CITY OF SALEM, et al.,
Defendants.

STEVEN M. McCARTHY
McCarthy Law Offices
1265 Highway 51
Independence, OR 97351
[phone]
Attorney for Plaintiff
KENNETH S. MONTOYA
City of Salem
555 Liberty Street SE
Room 205
Salem, OR 97301
[phone]
Attorney for Defendants

1 - OPINION AND ORDER

BROWN, Judge.
The Motion (#52) for Partial Summary Judgment of Defendants
City of Salem and Salem Police Department; Jerry Moore (Salem
Chief of Police); and Officers R. Ramirez, John E. Diaz, Angus
Scott Emmons, and Larrey Owens came on for hearing on May 7,
2013, at 1:30 p.m.

Defendants appeared through their counsel,

Kenneth S. Montoya, but Plaintiff’s counsel, Steven M. McCarthy,
did not appear.
The Court and counsel waited 35 minutes and made several
unsuccessful efforts to reach Plaintiff’s counsel.

The Court

noted on the record that this hearing had been set on January 10,
2013, in a telephone conference in which Plaintiff’s counsel
personally participated, and there had not been any motion or
other request from Plaintiff’s counsel to be excused or to reset
the hearing.1

Because this Motion has been pending for a very

long time (due, in part, to party-requested extensions of time
and difficulties between counsel concerning a joint filing of a
Statement of Agreed Facts) and because Plaintiff’s position on
the Motion was well-documented and there was actual notice of the
hearing to Plaintiff’s counsel more than eight weeks ago, the

1

On March 8, 2013, the Court received a letter from
Mr. McCarthy, Plaintiff’s counsel, reporting that he missed the
hearing because “it was not on my calendar,” apologizing for his
failure to appear, and expressing his hope that “the Court will
not vest any consequences upon my client” as a result of
counsel’s failure.
2 - OPINION AND ORDER

Court exercised its case-management discretion to proceed with
argument in counsel’s absence with a full stenographic record
made of the hearing.

If, after considering the Court’s

disposition of Defendant’s Motion as stated in this Order and
after reviewing the stenographic record of the argument,
Plaintiff’s counsel believes there is a substantial basis for the
Court to reconsider this Order, counsel has leave to move for
such reconsideration.
For the reasons stated on the record and summarized herein,
the Court GRANTS in part and DENIES in part Defendants’ Motion
for Partial Summary Judgment as follows:
1.

Defendants’ counsel withdrew Defendants’ Motion against

Plaintiff’s Second Claim for Relief (Due Process) and against
Plaintiff’s Eleventh Claim for Relief (State Law - Medical
Malpractice and Negligence), and, therefore, the Court DENIES as

moot Defendants’ Motion as to those two claims.
2.

With respect to the Motion on behalf of Defendant

Ramirez, the Court notes there has not been any evidence offered in
opposition to the Ramirez Declaration (Exhibit 1 in #66) that
Ramirez arrived on scene after the use of force by other individual
Defendants and then acted as an on-scene supervisor.

Because any

acts of excessive force were, therefore, already complete before
Ramirez’s arrival, there is not any factual basis for a Section
1983 claim to proceed against him for failure to prevent such uses
of force by others.

In addition, to the extent that Plaintiff

3 - OPINION AND ORDER

seeks to proceed against Defendant Ramirez as an official policymaker who allegedly ratified the unlawful conduct of other
Defendants, the Court agrees with Defendants that there is not any
factual basis from which a rational juror could conclude Ramirez is
such a policy-maker for purposes of Monell liability.

Finally, if

Plaintiff wishes to pursue a state-law claim for negligence or
another common-law tort based on the conduct of Defendant Ramirez,
the Oregon Tort Claims Act, Or. Rev. Stat. § 30.260, et seq.,
requires such a claim to be brought against a public body, which in
this case would be the City of Salem and, as noted, which already
is a defendant.
Accordingly, the Court GRANTS Defendant’s Motion as to
Defendant Ramirez and DISMISSES Plaintiff’s claims against him with
prejudice.

3.

With respect to Defendant City of Salem’s Motions

against the Monell claims, Defendant’s counsel conceded these
Motions were based on the fact that the use of tasers in this
case occurred before the Ninth Circuit’s decision in Bryan v.
MacPherson in which the court first articulated the standard by

which to evaluate whether taser use is unconstitutional.
F.3d 805 (9th Cir. 2010).

See 630

Although individual defendants may

assert qualified immunity as a defense from a lawsuit when the
applicable constitutional standard is not clearly established at
the relevant time, qualified immunity does not apply to a public4 - OPINION AND ORDER

body defendant.

Ass’n for Los Angeles Deputy Sheriffs v. County

of Los Angeles, 648 F.3d 986 (9th Cir. 2011).

Accordingly, the

Court DENIES this part of Defendants’ Motion.
4.

With respect to Defendants’ argument that Plaintiff’s

addition of Defendant Jerry Moore as an individual defendant is
barred by the statute of limitations, the Court agrees, GRANTS
Defendant’s Motion to this extent, and DISMISSES Plaintiff’s
claims against Defendant Moore in his individual capacity as
time-barred.

To the extent that Plaintiff intended to proceed

under Section 1983 against Moore in his official capacity, that
is the equivalent of bringing the claim(s) against the City of
Salem itself and Plaintiff is already pursuing the City for such
claim(s).
5.

To the extent that Plaintiff seeks to pursue a private-

right action against any Defendant under the Oregon Constitution,
the Court agrees with Defendants that there is not any Oregon
authority authorizing such a claim.
Accordingly, the Court GRANTS Defendants’ Motion as against
Plaintiff’s state constitutional claim.

FURTHER PROCEEDINGS
The Court directs counsel to confer and to file no later
than March 22, 2013, a jointly proposed schedule for the
following final pretrial and trial proceedings and for proposed
5 - OPINION AND ORDER

deadlines for related submissions as described:
1.

A jointly proposed deadline for the parties’ jointly

proposed pretrial order and verdict form;
2.

A deadline approximately four weeks later for all

pretrial documents (joint witness list, joint exhibit list, trial
memoranda, motions in limine, jointly proposed jury instructions
as to the elements of Plaintiff’s remaining claims, and a joint
list of voir dire topics);
3.

A deadline approximately three weeks later for the

final Pretrial Conference; and
4.

A date approximately one week after the final Pretrial

Conference for the Jury Trial to resolve all remaining claims and
defenses.
The Court will schedule a Rule 16 Conference to set a final
case-management schedule after receiving the parties’ March 22,
2013, submission.
IT IS SO ORDERED.
DATED this 11th day of March, 2013.

/s/ Anna J. Brown
_____________________________
ANNA J. BROWN
United States District Judge

6 - OPINION AND ORDER