Hartfield vs Besner, etc, et al
Filing
107
OPINION AND ORDER ON MONELL CLAIM: The City's Motion to Dismiss Plaintiff's Monell Claim, or in the Alternative, Motion for Summary Judgment on the Monell Claim 71 is GRANTED and Hartfield's fifth claim for relief is dismissed with prejudice. Signed on 10/15/2012 by Judge Garr M. King. (pc)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
SEAN L. HARTFIELD,
Plaintiff,
v.
LEO BESNER, individually, WILLIE
HALLIBURTON, SGT. PETER
MAHUNA, CITY OF PORTLAND, a
political subdivision of State of Oregon,
and John Doe Supervisors #1-5,
Defendants.
Sean L. Hartfield
Hartfield Law Offices PC
6019 NE MLK Jr. Boulevard
Portland, OR 97211
Pro Se Plaintiff
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Civil Case No. 3:11-CV-00100-KI
OPINION AND ORDER ON
MONELL CLAIM
J. Scott Moede
Senior Deputy City Attorney
Office of City Attorney
1221 SW Fourth Avenue, Rm. 430
Portland, OR 97204
Attorney for Defendants
Plaintiff Sean L. Hartfield brings an action under 42 U.S.C. § 1983 and state law alleging
defendants Leo Besner and the City of Portland (“City”) violated his civil rights and acted in a
tortious manner on August 22, 2010. Based on Hartfield’s concessions, I previously dismissed
Sergeant Halliburton and dismissed Hartfield’s excessive force and battery claims. I indicated
that, had Hartfield not conceded these claims, I would have ruled in favor of defendants on them.
I also granted summary judgment to defendants on Hartfield’s right to counsel and silence claim.
With respect to Hartfield’s Fourth Amendment claim, I found a question of fact existed as
to whether confinement in a police car, or being transported to the precinct, changed a
permissible Terry stop into an arrest and I denied defendants’ motion for summary judgment on
that issue. Similarly, I found a question of fact existed as to whether what Officer Besner knew
was sufficient to constitute probable cause to arrest Hartfield for assault in the second degree,
menacing or disorderly conduct in the second degree. Since Hartfield raised a material issue of
fact about Sergeant Mahuna’s personal participation in any Fourth Amendment violation, I
declined to dismiss him. Nevertheless, I found Sergeant Mahuna and Officer Besner entitled to
qualified immunity on Hartfield’s Fourth Amendment claim. Finally, because Hartfield raised a
question of fact about whether any arrest was lawful, his false imprisonment claim survived
summary judgment; the claim is alleged against the City but involves only Officer Besner’s
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conduct.
Pending before me is the City’s Motion to Dismiss Plaintiff’s Monell Claim, or in the
Alternative, Motion for Summary Judgment on the Monell Claim. That claim had previously
been bifurcated. For the following reasons, I grant the motion.
LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff fails to allege the
“grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotation omitted). This means that, although a plaintiff need not allege detailed facts,
the pleading must provide “enough facts to state a claim to relief that is plausible on its face.” Id.
at 570. A claim rises above the speculative level “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). “In sum, for a
complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable
inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to
relief.” Moss v. United States Secret Serv., 572 F.3d 962, 929 (9th Cir. 2009) (citing Iqbal, 129
S. Ct. at 1949)).
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to point out the absence of any genuine issue of material
fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate
through the production of probative evidence that there remains an issue of fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the
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court “must view the evidence on summary judgment in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party.” Nicholson v.
Hyannis Air Serv., Inc., 580 F.3d 1116, 1122 n.1 (9th Cir. 2009) (citation omitted).
DISCUSSION
Hartfield makes the following allegations in his Monell claim:
61.
The City of Portland had an unofficial custom, policy or practice of
endorsing and authorizing unconstitutional arrests, unlawful use of force by
officers including Besner.
Hartfield then proceeds to allege six separate incidents which Hartfield alleges the City
knew about “regarding Defendant Besner and his propensity for violence and excessive force and
unconstitutional behavior while acting in his capacity as a police office.” First Am. Compl. ¶ 62.
The six incidents alleged involve the following conduct: Officer Besner punched a man in the
head (1998); he “used excessive force against individuals protesting the war” (judgment in
2004); he “maliciously grabbed and twisted” a 15 year old’s arm (judgment in 2005); he
“wrongfully shot” a man in the back (judgment in 2005); he “wrongfully and maliciously tasered
and shocked” a woman at least three times then dragged her downstairs (judgment in 2008); and
he “wrongfully pointed [a] loaded weapon[] at plaintiffs at close range, then illegally detained
them” and pulled one plaintiff out of his car by the hair and punched him in the groin (jury
verdict in 2009). Id. at ¶ 62(a)-(f) (emphasis added).
Hartfield alleges the “unconstitutional force and arrest” was consistent with “prior
wrongful and unlawful conduct” of Officer Besner, and that the City knew about the prior
conduct, ratified it, and “failed to take effective action to prevent” Officer Besner “from
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continuing to engage in the use of excessive force, abuse of his authority, and similar wrongful
and unlawful misconduct.” Id. at ¶ 63 (emphasis added). Additionally, he alleges the City
“authorized, ratified and/or tolerated” Officer Besner’s “wrongful and unlawful conduct” as
follows:
a) By failing to properly discipline Defendant Besner for prior wrongful
and/or unlawful conduct, particularly where he was known to be hostile and
unduly violent in his interactions with people in the community.
b) By failing to take adequate precautions such as testing Defendant
Besner’s knowledge of the law and or [sic] his knowledge of the Portland Police
Bureau’s Manual of Policy and Procedures; and
c) [dismissed claim regarding handcuffs and access to a toilet].
Id. at ¶ 64 (emphasis added).
Finally,
65.
As a result of the unconstitutional policy, custom or practice which was
promoted, allowed or facilitated within the Portland Police Bureau[,] officers are
allowed to engage in coercive arrest, unlawful detentions and arrest, unlawful
force and actions similar to what was displayed by Besner and the other officers
involved in the arrest and investigation of Plaintiff.
66.
As a result of the unconstitutional policy, custom and practice alleged
herein Plaintiff was unconstitutionally arrest[ed], detained, handcuffed, forced to
jail and held without justification and unlawfully.
I.
Excessive Force
The City argues that because Hartfield’s Monell claim focuses on Officer Besner’s
alleged use of excessive force, and because Hartfield conceded his excessive force claim, the
claim should be dismissed. I agree, but I dismiss the Monell claim only to the extent it alleges a
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City-wide policy resulting in excessive force by officers. See City of L.A. v. Heller, 475 U.S.
796, 799 (1986) (City not liable under § 1983 where individual officer did not inflict
constitutional injury).
Reading the allegations in Hartfield’s complaint fairly, he also alleges an unconstitutional
policy or practice, or City omissions, resulting in his alleged unconstitutional arrest.
Accordingly, I deal with that portion of his Monell claim next.
II.
Arrest
The City argues Hartfield’s allegations are insufficient to state a Monell claim and,
alternatively, that it is entitled to judgment because Hartfield cannot establish liability against the
City.
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690
(1978), the Court held the word “person” in § 1983 includes municipalities and other local
governing bodies. A plaintiff may establish local governmental liability by demonstrating that:
(1) a governmental employee committed the alleged constitutional violation pursuant to a formal
governmental policy or a “longstanding practice or custom which constitutes the ‘standard
operating procedure’ of the local governmental entity;” (2) the individual who committed the
constitutional tort was an official with “‘final policy-making authority’ and that the challenged
action itself thus constituted an act of official governmental policy;” or (3) “an official with final
policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis
for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal citations omitted).
A municipality’s failure to protect constitutional rights may also result in liability, but only if the
following four conditions are met: “(1) that [the plaintiff] possessed a constitutional right of
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which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to
deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving
force behind the constitutional violation.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)
(internal quotation marks omitted).
The City argues Hartfield fails to state a claim. Specifically, Hartfield does not allege the
City violated his rights or directed its employees to do so. To the extent his theory is that the
City failed to act, the City asserts the allegations in the First Amended Complaint are insufficient.
The City argues Hartfield has failed to allege any specific custom, policy, or practice that would
authorize an unlawful arrest, has failed to allege any policy or practice that was the “moving
force” behind the alleged constitutional violation, and has failed to allege that the City acted with
deliberate indifference.
Assuming without deciding that Hartfield properly alleges a Monell claim, given how far
down the litigation path this case has traveled, I conclude Hartfield has failed to raise an issue of
material fact sufficient to overcome the City’s motion for summary judgment, as I discuss below.
A.
Failure to Train
Hartfield alleges the City “authorized, ratified and/or tolerated Defendant Besner’s
wrongful and unlawful conduct . . . [b]y failing to take adequate precautions such as testing
Defendant Besner’s knowledge of the law and/or his knowledge of the Portland Police Bureau’s
Manual of Policy and Procedures[.]” First Am. Compl. ¶ 64(b).
An inadequate training claim may serve as the basis of municipal liability only after a
three-part test has been met. Merritt v. Cnty. of L.A., 875 F.2d 765, 770 (9th Cir. 1989); City of
Canton v. Harris, 489 U.S. 378, 387-391 (1989). First, the existing training program must be
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inadequate. “A training program will be deemed adequate if it ‘enable[s] officers to respond
properly to the usual and recurring situations with which they must deal.’” Merritt, 875 F.2d at
770 (quoting Canton, 489 U.S. at 388). If the training program is inadequate it may constitute a
city policy, but only if the City’s failure to train its employees evidences a “deliberate
indifference” to the rights of individuals with whom the officers come in contact. Id. (citing
Canton, 489 U.S. at 387). To prove deliberate indifference, plaintiff must show that “the need
for more or different training [was] so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.” Id. (citing Canton, 489 U.S. at 391). Finally, the
inadequate training must be shown to have “actually caused” the constitutional deprivation. Id.
(citing Canton, 489 U.S. at 391).
The City has submitted evidence of Officer Besner’s training on the subjects of
reasonable suspicion, probable cause and arrests, and his training on community policing and
preliminary investigations, among other subjects. The City also provides annual updates on these
subjects at in-service trainings.
Hartfield falls back on Officer Besner’s actions, specifically the officer’s alleged failure
to properly investigate the incident. However, even assuming Officer Besner’s actions constitute
evidence of improper training, “evidence of the failure to train a single officer is insufficient to
establish a municipality’s deliberate policy.” Blankenhorn v. City of Orange, 485 F.3d 463, 484
(9th Cir. 2007).
When the City provides evidence of Officer Besner’s training on the relevant subjects,
and when Hartfield neither questions this training nor offers evidence of other police officers
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engaging in similar allegedly questionable conduct, I cannot find that there is a material issue of
fact as to whether the City “can reasonably be said to have been deliberately indifferent to the
need for more training.” Merritt, 875 F.2d at 770. Furthermore, even assuming Officer Besner
arrested Hartfield without probable cause, that incident alone is not proof of inadequate training.
Indeed, “adequately trained officers occasionally make mistakes; the fact that they do says little
about the training program or the legal basis for holding the city liable.” Canton, 489 U.S. at
391.
B.
Remaining Allegations
Hartfield asserts, however, that his Monell claim is not limited to a failure to train.
Hartfield argues Sergeant Mahuna’s failure to write a report should lead to City liability either
because the City had a policy of allowing the sergeant to avoid the obligation of writing a report
or because the City failed to enforce the policy; no allegations in his First Amended Complaint
even remotely touch on this subject. The only policy Hartfield points to reads: “Members taking
any official police action, on or off duty, will write an appropriate report to cover the incident
except in cases resolved with a coded disposition.” Ex. 9, at 2. The report is required to be
written either at the end of the shift or within four hours after the incident. In addition, Hartfield
includes a policy controlling the contents of officers’ duty notebooks. There is no evidence,
however, that Sergeant Mahuna’s failure to write a report (either because the City allowed him to
avoid the obligation or failed to enforce its policy) had anything to do with Hartfield being placed
in the back of a patrol car and being taken to the precinct, possibly without probable cause. In
short, there is no evidence any failure on the City’s part caused Hartfield’s injury.
Hartfield also argues that the City had a “policy of allowing one officer (Officer Besner)
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to rely on another’s statement (Sgt. Mahuna) about what yet another officer (Officer Pryce)
learned in the course of an interview with a witness (McKay), particularly given the likelihood of
[human] error, misinterpretation, mishearing, misunderstandings, moments of inattention or
distraction, and so on accumulating with each new exchange of information.” Resp. 11-12.
Hartfield argues that, absent such a policy, Officer Besner “would likely” have spoken directly
with McKay and another percipient witness “likely” would have been interviewed at the scene,
rather than much later. Id. at 12. Hartfield fails to point to a City policy, to any evidence that his
injury was caused by deliberate indifference of the City, or to any evidence suggesting that his
injury as a result of this alleged conduct was something more than an isolated incident. Rather,
his allegations suggest negligence in the way the officers conducted the investigation.
As to the allegations actually present in his First Amended Complaint, Hartfield offers no
evidence or argument supporting his allegation that the City had an “unofficial custom, policy or
practice of endorsing and authorizing unconstitutional arrests[.]” First Am. Compl. ¶ 61.
With respect to the City’s alleged failure to “take effective action to prevent Defendant
Besner from continuing to engage in . . . abuse of his authority, and similar wrongful and
unlawful misconduct,” he relies on the six incidents relayed in his First Amended Complaint. Id.
at ¶¶ 63, 62(a)-(f). He offers no evidence or details of the alleged incidents, and only one of the
six appears to have involved an illegal detainment. The illegal detainment occurred in October
2009, almost a year before the incident involving Hartfield. Hartfield provides no evidence about
whether anyone requested or required an internal investigation related to that incident, no
evidence that the Portland Police Bureau conducted an inadequate investigation, and no evidence
regarding any decision on discipline. Furthermore, the City’s promotion of Officer Besner to
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sergeant in December 2010, two months after Hartfield notified the City about his claims, is
insufficient to show the City ratified Officer Besner’s actions toward Hartfield without further
details surrounding the City’s decision. This same reasoning also goes to Hartfield’s allegations
that the City “authorized, ratified and/or tolerated Defendant Besner’s wrongful and unlawful
conduct” and that the City “fail[ed] to properly discipline [him] for prior wrongful and/or
unlawful conduct[.]” First Am. Compl. ¶ 64(a).
Finally, Hartfield’s allegation that the City had a “policy which allowed, encouraged or
required Defendant Besner to leave detainees handcuffed in cells without access to a toilet
regardless of any threat level to the detainees or officers” may not be the basis for a Monell claim
as Hartfield conceded his claim for improper handcuffing and use of a toilet. Id. at ¶ 64(c).
CONCLUSION
For the foregoing reasons, the City’s Motion to Dismiss Plaintiff’s Monell Claim, or in
the Alternative, Motion for Summary Judgment on the Monell Claim [71] is granted and
Hartfield’s fifth claim for relief is dismissed with prejudice.
IT IS SO ORDERED.
DATED this
15th
day of October, 2012.
/s/ Garr M. King
Garr M. King
United States District Judge
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