Liu v. Portland State University et al
Filing
194
ORDER: The Court GRANTS City Defendants Motion 165 for Summary Judgment and DISMISSES with prejudice Plaintiffs claims against City Defendants. Signed on 05/17/2016 by Judge Anna J. Brown. See attached 26 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
HENRY D. LIU,
Plaintiff,
3:14-CV-00908-BR
OPINION AND ORDER
v.
PORTLAND STATE UNIVERSITY, et
al.,
Defendants.
MICAH D. FARGEY
Fargey Law PC
5 Centerpointe Drive, 4th Floor
Lake Oswego, OR 97035
(503) 946-9426
Attorneys for Plaintiff
P.K. RUNKLES-PEARSON
SHARAE M. WHEELER
Miller Nash LLP
111 S.W. Fifth Avenue
Suite 3400
Portland, OR 97204
(503) 205-2314
Attorneys for Defendants Portland State University,
Jacqueline Balzer, Domanic Thomas, and Joseph Schilling
1 - OPINION AND ORDER
TRACY REEVE
Portland City Attorney
J. SCOTT MOEDE
WADE H. TUCKER
Deputy City Attorneys
1221 S.W. Fourth Avenue, Suite 430
Portland, OR 97204
(503) 823-4047
Attorneys for Defendants City of Portland and James
Crooker
KAREN O'KASEY
JASON R. POSS
Hart Wagner LLP
1000 S.W. Broadway, Twentieth Floor
Portland, Oregon 97205
(503) 222-4499
Attorneys for Defendant Oregon Health & Sciences
University
DUNCAN K. FOBES
Patterson Buchanan Fobes & Leitch
2112 Third Avenue, Suite 500
Seattle, WA 98121
(206) 462-6700
Attorneys for Defendant Cascadia Behavioral Healthcare
BROWN, Judge.
This matter comes before the Court on the Renewed Motion
(#165) for Summary Judgment of Defendants City of Portland and
Portland Police Sergeant James Crooker (City Defendants).
For
the reasons that follow, the Court GRANTS City Defendants’ Motion
and DISMISSES with prejudice Plaintiff’s claims against City
Defendants.
2 - OPINION AND ORDER
BACKGROUND
The following facts are taken from the Agreed Facts in the
parties’ Pretrial Order and the parties’ materials related to
City Defendants’ Motion for Summary Judgment and are undisputed
unless otherwise noted.
Plaintiff Henry D. Liu was enrolled as a graduate student in
the Conflict Resolution Program at Portland State University
(PSU) from the beginning of the fall term in 2011 through
June 21, 2012.
On April 20, 2012, another graduate student in the Conflict
Resolution Program told PSU Professor Rachel Cunliffe that
Plaintiff had made statements about the faculty that the student
found threatening.
At some point the student also reported her
conversation with Plaintiff to PSU Campus Public Safety (CPS)
Officer Sergeant Joseph Schilling.
The student specifically
advised Sergeant Schilling that she was a classmate of Plaintiff
and that Plaintiff told the student during a break from class on
April 12, 2012, that (1) Plaintiff “had issues” with the Conflict
Resolution Program and its Director, Professor Robert Gould,
because of an unsatisfactory grade that he had received after he
caused another student to cry in class; (2) he “had issues”
because a fellow student had allegedly used the word "chink"
while speaking with him; and (3) he made statements that made the
student believe he was angry because he felt faculty members were
3 - OPINION AND ORDER
treating him differently due to his ethnicity.
The student also
advised Sergeant Schilling that Plaintiff told her after class on
April 12, 2012, that he had a back or spinal injury and was
taking a large amount of pain medication that often interfered
with his thinking and daily activity.
The student suggested
alternatives such as yoga and meditation to relieve stress, but
Plaintiff stated:
"[T]his situation is really pushing me over
the edge and we know what happens when students are pushed over
the edge."
The student emailed Plaintiff shortly after April 12,
2012, and Plaintiff responded he was very stressed, upset, and
unable to sleep and was “becoming aware of repressed emotions of
anger.”
The student told Sergeant Schilling that the student
talked to Plaintiff after class on April 19, 2012, about
Professor Gould, and Plaintiff became agitated, raised his voice,
used profanity, and stated:
his ass.”
“I’m about ready to stick a .45 in
Plaintiff then lowered his voice and apologized, but
he continued to express frustration and stated he was unable to
sleep.
He also repeated he was taking a lot of pain medication,
but it was not helping his pain level.
Plaintiff added:
“Professor Stan Sitnick giving him a [bad] grade did not help
. . ., ‘he could get shot.’”
Plaintiff told the student that he
was noticing he had “a lot of hatred.”
The student became
alarmed, changed the subject, and asked Plaintiff if he had
weekend plans.
Plaintiff responded he planned to go to “target
4 - OPINION AND ORDER
practice on Sunday.”
Sergeant Schilling believed the student’s
statements were credible and felt concerned.
Sergeant Schilling ascertained Plaintiff was living off of
the PSU campus.
Accordingly, Sergeant Schilling contacted the
Portland Police Bureau and shared with Defendant Portland Police
Officer James Crooker the student’s statements about Plaintiff.
Officer Crooker contacted the Project Respond team from
Defendant Cascadia Behavorial Health Care and asked them to
assist in a visit to Plaintiff’s residence for a mental-health
evaluation and possible Director’s Hold pursuant to former Oregon
Revised Statute § 426.233.
On April 20, 2012, Officer Crooker, Portland Police Officer
Jason Walters, Sergeant Schilling, CPS Officer David Baker, and
Cascadia Project Respond personnel Rachel Phariss and Sarah
Schellhorn went to Plaintiff’s residence to address what they
considered to be Plaintiff’s possible threat to the community.
Phariss and Schellhorn waited around the corner from Plaintiff’s
apartment while Officers knocked on Plaintiff’s door.
Officer Crooker testifies in his Declaration that Plaintiff
“appeared dazed and confused and was unable to communicate
clearly” when he answered the door.
¶ 8.
Decl. of James Crooker at
Plaintiff permitted the officers to enter his apartment.
Officer Crooker asked Plaintiff if there were any firearms in his
apartment, and Plaintiff stated he did not have any firearms.
5 - OPINION AND ORDER
When the officers entered Plaintiff’s apartment, however, they
observed pamphlets for firearms on a table as well as an empty
rifle box.
At that point Officer Crooker asked Plaintiff again
if there were any firearms in his apartment.
Officer Crooker
testifies in his Declaration that Plaintiff “began to back away
from [Officer Crooker] and the other officers.
In response
[Officer Crooker] took [Plaintiff’s] wrist and handcuffed
Plaintiff ‘for his own safety’ and read Plaintiff his Miranda
rights.
Crooker Decl. at ¶ 9.
After some discussion Plaintiff
told the officers that he had firearms and agreed to tell the
officers where to find them in Plaintiff’s apartment.
Officers
eventually found unloaded .22 and .45 caliber handguns, an
unloaded M4 carbine assault rifle, an unloaded 9mm handgun, and
‘thousands of rounds of ammunition.’”
Crooker Decl. at ¶ 10.
Officers also found “various knifes, survival tools (including an
axe), a canteen, water bottles, dressings for wounds, rope, extra
magazine clips, and flashlights.”
Id.
Officer Crooker testified
in his Declaration that in his experience “[t]he manner in which
all these items were laid out was consistent with that of a
moment's-notice preparedness for immediate accessibility to grab
pre-packed grab bags in the event that combat were to occur
suddenly.”
Id.
Officers also found prescriptions for Percocet
and Tramadol in Plaintiff’s name, two bottles of Oxycodone
prescribed to Plaintiff’s father, and several empty bottles of
6 - OPINION AND ORDER
alcohol.
Officer Crooker spoke with Plaintiff, and, “after a
lengthy conversation,” Plaintiff admitted he had made “boneheaded” comments “including something about using a .45 caliber
handgun to kill a professor.”
Crooker Decl. at ¶ 11.
During his
conversation with Plaintiff, Officer Crooker
began to piece together information such as the
time frame when the dispute over [Plaintiff’s]
grades began and the time frame when the . . .
assault rifle was purchased and shipped to his
home. Sergeant Schilling confirmed that the time
frame was consistent with one another, indicating
that [Plaintiff] did purchase the assault rifle
shortly after the dispute over his grades started.
Aff. of Scott Moede, Ex. 12 at 29.
Officer Crooker decided to
have Phariss and Schellhorn come in and speak to Plaintiff
directly when Officer Crooker
started to put that together with the fact that
[Plaintiff] had specifically purchased weapons,
specifically made and communicated a plan to kill
a professor, his proximity to the school, the -the fact that he wasn't answering questions, the
fact that he had alcohol around the apartment,
along with medications, the fact that he was able
to recall some events, but when I asked him
specifically to recall the events that occurred
with the professor, that he wasn't recalling those
events. These are all -- these are all items of
concern that point to our need as law enforcement
officers to do something to safeguard the
community from this person.
Moede Aff., Ex. 12 at 29-30.
Phariss and Schellhorn entered Plaintiff’s apartment after
Officer Crooker handcuffed Plaintiff.
Phariss and Schellhorn
interviewed Plaintiff for 30 or 40 minutes.
7 - OPINION AND ORDER
Phariss testifies in
her Declaration that Plaintiff agreed the police could remove the
firearms from his apartment.
Plaintiff, however, “appeared to be
confused and . . . kept sending the police to the wrong places to
locate the weapons he had throughout his apartment.”
Rachel Phariss at ¶ 6.
Decl. of
Phariss states
[Plaintiff] said he could not remember making the
threatening comments he made to [the student], but
he admitted that he may have made such comments.
[Plaintiff's] conversation was vague and he kept
going off on tangents. His thought process was
circular. He denied hearing voices or having
hallucinations. I could not tell if he was
disoriented, but he did appear to be confused. He
denied any mental health history, and he denied
having any intent to harm himself. He seemed to
marginalize the allegation that he had made
threats about shooting one of his professors. He
also denied having any intention to shoot anyone
at PSU.
I observed the following things while I was in
[Plaintiff's] apartment: (1) the receipt from his
recently purchased AR 15 indicated that he had
bought it after his problems with PSU began;
(2) [Plaintiff] had ammunition and tactical gear,
including duffle bags with dehydrated food,
knives, and "quick stop", which will stop bleeding
if a person is shot by a bullet; (3) there were
empty beer, liquor, and wine bottles strewn about
the apartment; and (4) there were Percocet and
Tramadol pills on his coffee table as well as two
bottles of Oxycodone with [Plaintiff’s] father's
name on them.
Phariss Decl. at ¶¶ 7-8.
Phariss testifies “[d]iagnosing
[Plaintiff] was difficult because it was unclear whether his
behavior was due to alcohol, drugs, or mental illness.”
Decl. at ¶ 9.
Phariss
Phariss, therefore, deferred diagnosis, but she
decided Plaintiff “would benefit from a full psychological
8 - OPINION AND ORDER
evaluation.”
Phariss and Schellhorn consulted with Meg Kaveny,
Cascadia Project Respond Supervisor, and Kaveny consulted with
Jay Auslander, Cascadia’s Director of Emergency Services.
Ultimately Phariss, Kaveny, and Auslander concluded a Director’s
Hold on Plaintiff was justified because there was probable cause
to believe Plaintiff was
dangerous to others and [in] need of immediate
psychological evaluation based on
(1) [Plaintiff’s] speech latency, which did not
appear to be a language issue; (2) [Plaintiff’s]
apparent confusion; (3) [Plaintiff’s] vague
explanations of his behavior; (4) [Plaintiff]
minimizing the allegations against him and not
appreciating the seriousness of making threats;
(5) the information regarding his statements
threatening to shoot one of his professors; and
(6) the large amount of weapons, ammunition, and
tactical gear found in his apartment.
Phariss Decl. at ¶ 9.
Phariss completed a Report of Peace
Officer Custody of an Allegedly Mentally Ill Person as Directed
by a Community Mental Health Director and issued a Director’s
Hold on Plaintiff for the following reasons:
Concerns about targeted specific threats, large
number of firearms, ammo & tactical gear, speech
latencies, confusion & vague explanation of
behavior & previous statements that minimize
concerns. Extreme risk of potential harm to
others as evidenced by the above risk factors.
Phariss Decl., Ex. 1 at 1.
The Report directed Officer Crooker
to take Plaintiff into custody pursuant to Oregon Revised Statute
§ 426.228(2) and to transport Plaintiff to Oregon Health and
Science University (OHSU) for evaluation.
9 - OPINION AND ORDER
Officer Crooker
transported Plaintiff to OHSU in his patrol car.
Plaintiff remained at OHSU from April 20, 2012, through
April 25, 2012, during which time he was evaluated by numerous
medical professionals including Drs. Anne Gross, Bridgid Crowley,
Joshua Russell, and Robert Henrickson.
In June 2012 Plaintiff was expelled from PSU.
On May 2, 2014, Plaintiff filed pro se a first amended
complaint in Clatsop County Circuit Court against 40 Defendants
alleging seventeen claims for relief related to Plaintiff’s
interactions with Portland police officers, the seizure of
Plaintiff’s guns, Plaintiff’s commitment to the OHSU psychiatric
ward, Plaintiff’s expulsion from PSU, and articles about
Plaintiff’s expulsion published by the PSU newspaper, The
Vanguard, all occurring between April 2012 and June 2012.
On June 5, 2014, Defendants removed the matter to this Court
on the basis of federal-question jurisdiction.
At some point before June 30, 2014, Plaintiff obtained
counsel.
On August 15, 2014, Plaintiff filed a Second Amended
Complaint against 29 Defendants alleging nine claims for relief
related to Plaintiff’s interaction with various Portland police
officers, the seizure of Plaintiff’s guns, Plaintiff’s commitment
to the OHSU psychiatric ward, and Plaintiff’s expulsion from PSU,
all occurring between April 2012 and June 2012.
10 - OPINION AND ORDER
On August 28, 2015, PSU Defendants filed a Motion for
Summary Judgment as to all of Plaintiff’s claims against them.
On November 23, 2015, Plaintiff filed a Motion for Extension
of Summary Judgment-Related Court-Imposed Deadlines, which PSU
Defendants opposed.
On December 4, 2015, the Court held a status conference.
Based on the parties’ representations at that conference, the
Court ordered the parties to meet in person and to confer
regarding the dismissal of certain parties and claims from this
proceeding.
The Court struck all pending Motions and directed
the parties to file a preliminary Pretrial Order setting out the
parties, claims, and defenses that remained in this matter after
the parties’ conferral.
On December 18, 2015, the parties filed a Joint Proposed
Pretrial Order in which they dismissed numerous claims and
parties and advised the Court that this matter would proceed only
as to Plaintiff’s claims (1) against the City of Portland and
Officer Crooker pursuant to 42 U.S.C. § 1983 for unlawful seizure
in violation of Plaintiff’s rights under the Fourth Amendment to
the United States Constitution; (2) against OHSU pursuant to 42
U.S.C. § 1983 for unlawful confinement in violation of the Fourth
Amendment to the United States Constitution; (3) against PSU,
Defendant Jacqueline Balzer, and Defendant Domanic Thomas
pursuant to 42 U.S.C. § 1983 for violation of Plaintiff’s right
11 - OPINION AND ORDER
to due process under the Fourteenth Amendment to the United
States Constitution; (4) against the City of Portland and Officer
Crooker for false arrest and/or confinement in violation of state
law; (5) against Cascadia Behavioral Healthcare for unlawful
confinement in violation of state law; (6) against PSU,
Schilling, and Cascadia for negligence “based on their respective
roles in the arrest of Plaintiff”; and (7) against PSU, Balzer,
and Thomas for negligence in “failing to exercise due care in
connection with the process and proceedings that led to
Plaintiff’s expulsion from PSU.”
On December 23, 2015, PSU Defendants filed a Renewed Motion
for Summary Judgment.
On January 15, 2016, Cascadia filed a Renewed Motion for
Summary Judgment.
On January 15, 2016, OHSU filed a Renewed Motion for Summary
Judgment.
On March 28, 2016, the Court issued an Opinion and Order in
which it granted PSU Defendants’ Renewed Motion for Summary
Judgment and dismissed with prejudice Plaintiff’s claims against
PSU Defendants.
On May 12, 2016, the Court granted Cascadia’s Renewed Motion
for Summary Judgment and dismissed with prejudice Plaintiff’s
claims against Cascadia.
On May 16, 2016, the Court granted OHSU’s Motion for Summary
12 - OPINION AND ORDER
Judgment and dismissed with prejudice Plaintiff’s claims against
OHSU.
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.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .
Id.
"This burden is not a light one
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(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,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
13 - OPINION AND ORDER
Sluimer
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
A “mere
disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
DISCUSSION
As noted, Plaintiff’s remaining claims against City
Defendants are for unlawful seizure in violation of the Fourth
Amendment to the United States Constitution brought pursuant to
§ 1983 and for false arrest and/or confinement in violation of
14 - OPINION AND ORDER
state law.
City Defendants move for summary judgment on
Plaintiff’s claims against them on the grounds that Officer
Crooker is immune from Plaintiff’s claims pursuant to Oregon
Revised Statutes §§ 426.233, 426.228, and 426.355(6); Plaintiff
fails to allege a claim under Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 691 (1978); and/or to
the extent that Plaintiff has alleged a claim under Monell,
Plaintiff’s claim is without merit.
I.
Officer Crooker is immune from Plaintiff’s claims against
him.
Oregon Revised Statute § 426.233 provides in pertinent part:
(1)(a) A community mental health program director
. . . or a designee of the director may take one
of the actions listed in paragraph (b) of this
subsection when the community mental health
program director or designee has probable cause to
believe a person:
(A) Is dangerous to self or to any other
person and is in need of immediate care,
custody or treatment for mental illness.
* * *
(b) The community mental health program director
or designee under the circumstances set out in
paragraph (a) of this subsection may:
(A) Notify a peace officer to take the person
into custody and direct the officer to remove
the person to a hospital or nonhospital
facility approved by the Oregon Health
Authority.
It is undisputed that on April 20, 2012, Phariss was a designee
of a community mental-health program director and authorized to
15 - OPINION AND ORDER
notify a peace officer to take a person into custody and to
remove the person to a facility approved by the Oregon Health
Authority.
It is also undisputed that Phariss issued a
Director’s Hold pursuant to § 426.233(1)(b)(A).
Oregon Revised Statute § 426.228(2) provides in pertinent
part:
A peace officer shall take a person into custody
when the community mental health program director,
pursuant to ORS 426.233, notifies the peace
officer that the director has probable cause to
believe that the person is imminently dangerous to
self or to any other person. As directed by the
community mental health program director, the
peace officer shall remove the person to a
hospital or nonhospital facility approved by the
authority.
Emphasis added.
Phariss notified Officer Crooker that she had
probable cause to believe Plaintiff was dangerous to himself or
to others and issued a Director’s Hold on Plaintiff pursuant to
Oregon Revised Statute § 426.233 on April 20, 2012.
In addition,
this Court concluded in its May 12, 2016, Opinion and Order that
Phariss had probable cause to issue the Director’s Hold on
Plaintiff.
Thus, Officer Crooker was required by § 426.228(2) to
take Plaintiff into custody and to remove Plaintiff to OHSU.
Oregon Revised Statute § 426.335(6) provides:
A peace officer. . . may not
criminally or civilly liable
to ORS 426.228 to 426.235 if
facility acts in good faith,
without malice.
in any way be held
for actions pursuant
the individual or
on probable cause and
City Defendants assert § 426.335(6) provides Officer Crooker with
16 - OPINION AND ORDER
immunity as to Plaintiff’s claims because Officer Crooker acted
in good faith, without malice, and with probable cause when he
took Plaintiff into custody and transported him to OHSU pursuant
to the Director’s Hold.
Plaintiff, however, asserts Officer Crooker did not have
probable cause1 to involuntarily commit Plaintiff because the
threats that Plaintiff made were “merely hyperbolic,” Plaintiff
did not do anything illegal, Plaintiff lawfully owned the
firearms found at his apartment, Plaintiff was legally prescribed
Percocet and Tramadol, Plaintiff’s father left the Oxycodone when
he visited Plaintiff’s apartment, and Plaintiff advised the
officers that he did not intend to commit any act of violence.
City Defendants point out that § 426.228(2) makes it
mandatory for a peace officer to take a person into custody and
to remove the person to a facility approved by the Oregon Health
Authority.
According to City Defendants, therefore, § 426.228(2)
required Officer Crooker to take Plaintiff into custody and to
remove him to OHSU even if Officer Crooker himself did not have
probable cause.
The Court agrees.
City Defendants also assert even if Officer Crooker was
required to have independent probable cause to enforce the
Director’s Hold issued by Phariss, Officer Crooker, in fact,
1
Plaintiff appears to concede Officer Crooker acted in good
faith and without malice, and Plaintiff does not offer any
evidence to the contrary.
17 - OPINION AND ORDER
independently had probable cause to take Plaintiff into custody
and to remove him to OHSU.
Probable cause is not defined in Chapter 426.
Oregon
courts, however, have analogized probable cause in Chapter 426 to
the definition set out in Oregon Revised Statute § 131.0052 and
held it is defined as “a substantial objective basis for
believing that more likely than not a person is mentally ill.”
Pyles v. Winters, No. 1:12–cv–00346–CL, 2013 WL 3475331, at *4
(D. Or. July 9, 2013)(citing State v. Smith, 71 Or. App. 205, 211
(1984)).
When “determining whether objective probable cause
exists, [the court must] consider the totality of the
circumstances presented to the officer and reasonable inferences
that may be drawn from those circumstances; no single factor is
dispositive.”
State v. Kelly, 274 Or. App. 363, 372 (2015)
(quotation omitted).
“‘The determination of probable cause is a legal, not a
factual, conclusion.
certainty.’”
Probable cause does not require
Pyles, 2013 WL 3475331, at *4 (quoting State v.
Herbert, 302 Or. 237, 241 (1986)).
“[I]f there is probable
cause, it is irrelevant if the person turns out to be
noncommittable.”
Id. (citing Chathas v. Smith, 884 F.2d 980, 987
2
Oregon Revised Statute § 131.005(11) defines probable
cause as “a substantial objective basis for believing that more
likely than not an offense has been committed and a person to be
arrested has committed it.”
18 - OPINION AND ORDER
(7th Cir. 1989)).
The issue, therefore, is not whether Plaintiff
is mentally ill, but whether under the totality of the
circumstances Officer Crooker had information sufficient to form
a substantial objective belief that it was more likely than not
that Plaintiff was a danger to himself or to others.
As noted, when Plaintiff opened the door to his apartment,
Officer Crooker observed Plaintiff “appeared dazed and confused
and was unable to communicate clearly” with officers.
Decl. at ¶ 10.
Crooker
When officers entered Plaintiff’s apartment, they
observed pamphlets for firearms on a table as well as an empty
rifle box.
The officers eventually found unloaded .22 and .45
caliber handguns, an unloaded M4 carbine assault rifle, an
unloaded 9mm handgun, and “thousands of rounds of ammunition” in
Plaintiff’s apartment.
Crooker Decl. at ¶ 10.
Officers also
found “various knifes, survival tools (including an axe), a
canteen, water bottles, dressings for wounds, rope, extra
magazine clips, and flashlights.”
Id.
Officer Crooker believed,
based on his experience, that “[t]he manner in which all these
items were laid out was consistent with that of a moment's-notice
preparedness for immediate accessibility to grab pre-packed grab
bags in the event that combat were to occur suddenly.”
Id.
Officers also found prescriptions for Percocet and Tramadol in
Plaintiff’s name, two bottles of Oxycodone prescribed to
Plaintiff’s father, and several empty bottles of alcohol.
19 - OPINION AND ORDER
In
addition, Officer Crooker “pieced together” that Plaintiff
purchased the assault rifle found in his apartment shortly after
the dispute over his grades began.
In summary, Officer Crooker
noted the following totality of the circumstances:
[Plaintiff] had specifically purchased weapons,
specifically made and communicated a plan to kill
a professor, his proximity to the school, the -the fact that he wasn't answering questions, the
fact that he had alcohol around the apartment,
along with medications, the fact that he was able
to recall some events, but when I asked him
specifically to recall the events that occurred
with the professor, that he wasn't recalling those
events. These are all -- these are all items of
concern that point to our need as law enforcement
officers to do something to safeguard the
community from this person.
Moede Aff., Ex. 12 at 29-30.
Similarly, Phariss testifies in her
Declaration that Plaintiff admitted to Officer Crooker and
Phariss that he made threatening comments about PSU professors
and staff to another student.
Officer Crooker was in the room
while Phariss spoke with Plaintiff.
Phariss described
Plaintiff's “conversation [as] vague and he kept going off on
tangents.
His thought process was circular.”
Plaintiff testifies in his Declaration that he had “camping
equipment, like backpacks, food, water, a first-aid kit,
including QuikClot and emergency supplies, rope, and an ax” in
his apartment on April 20, 2012, because his “fiancée was [going
to] visit[] from Shanghai, and [he] planned to take her camping.”
Decl. of Henry Liu at ¶ 15.
20 - OPINION AND ORDER
Plaintiff also testifies he
attempted to explain the presence of these items to officers, but
“no one seemed to care.”
Id.
Phariss, however, states in her
contemporaneous Report that Plaintiff “never explained his large
amount of ammo or tactical gear to [her] or the police.”
In
addition, the initial assessment notes about Plaintiff when he
arrived at OHSU on April 20, 2012, reflect Plaintiff stated he
“lives alone [and] does not have a girlfriend/partner.”
Declaration of Micah D. Fargey, Ex. 2 at 9.
Similarly, during
Plaintiff’s initial psychiatric evaluation by Paul Leung, M.D.,
on April 21, 2012, Plaintiff noted his current relationships were
“family.”
Fargey Decl., Ex. 3 at 3.
girlfriend or partner.
Plaintiff did not mention a
In Plaintiff’s Discharge Summary
completed by Bridgid Crowley, M.D., on April 25, 2012, however,
Plaintiff reportedly stated the “packs found in his apartment
were to be used for camping and spending time outdoors with his
fiance.”
Fargey Decl., Ex. 2 at 19.
Similarly, Plaintiff testifies in his Declaration that he
was not dazed or confused when officers arrived at his apartment
and that he was polite, kind, respectful, patient, honest, and
transparent.
Liu Decl. at ¶ 12.
The Declarations of Officer
Crooker and Phariss, however, indicate Plaintiff was confused.
Phariss’s contemporaneous Report also indicated Plaintiff was
confused and disoriented.
In addition, the OHSU intake notes
from April 20, 2012, reflect Plaintiff’s thought processes were
21 - OPINION AND ORDER
“disorganized, pt had trouble remembering questions, answering
questions sequentially, etc.”
Fargey Decl., Ex. 2 at 9.
Plaintiff’s memory was described as “unreliable, pt was not
forthcoming with either officers of SW, reports gaps in his
memory.”
Id.
On this record the Court concludes Plaintiff has not
established there is any genuine dispute of material fact as to
whether Officer Crooker had information sufficient to form a
substantial objective belief based on the totality of the
circumstances that it was more likely than not that Plaintiff was
a danger to himself or to others.
Thus, to the extent that it
was required, Officer Crooker also had independent probable cause
to take Plaintiff into custody and to remove him to OHSU.
As noted, § 426.335(6) provides:
A peace officer. . . may not
criminally or civilly liable
to ORS 426.228 to 426.235 if
facility acts in good faith,
without malice.
in any way be held
for actions pursuant
the individual or
on probable cause and
Officer Crooker, therefore, cannot be held liable for Plaintiff’s
claims against him.
Accordingly, the Court grants City Defendant’s Motion for
Summary Judgment as to Plaintiff’s claims against Officer
Crooker.
II.
Plaintiff has not established a state-law claim for false
arrest as to the City of Portland.
As noted, Plaintiff also brings a state-law claim for false
22 - OPINION AND ORDER
arrest and/or confinement against the City of Portland.
To the
extent that the City does not have immunity from such a claim
pursuant to § 426.336, the City asserts Plaintiff has not
established a claim for false arrest or confinement because
Officer Crooker had probable cause to detain Plaintiff and to
remove him to OHSU.
Under Oregon law "the tort [of false arrest] has four
elements:
(1) defendant must confine plaintiff; (2) defendant
must intend the act that causes the confinement; (3) plaintiff
must be aware of the confinement; and (4) the confinement must be
unlawful."
Hiber Creditors Collection Serv., Inc., 154 Or. App.
408, 413 (1998)(citing Lukas v. J.C. Penney Co., 233 Or. 345, 353
(1963), and Walker v. City of Portland, 71 Or. App. 693, 697
(1985)).
Probable cause is a complete defense to a state-law claim
for false arrest.
See, e.g., Smith v. Almada, 640 F.3d 931, 944
(9th Cir. 2011)("like false arrest claims, probable cause is an
absolute defense to malicious prosecution.”).
Under Oregon law an officer has probable cause if “there is
a substantial objective basis for believing that more likely than
not an offense has been committed and a person to be arrested has
committed it.”
State v. Makuch, 340 Or. 658 (2006)(citing Or.
Rev. Stat. § 131.005(11)).
The Court already has concluded Officer Crooker had probable
23 - OPINION AND ORDER
cause to detain and to remove Plaintiff because of the mandatory
language of § 426.228(2), and, in addition, he had an independent
basis for finding probable cause.
The City, therefore, cannot be
held liable for Plaintiff’s state-law claim for false
arrest/confinement.
Accordingly, the Court grants City Defendant’s Motion for
Summary Judgment as to Plaintiff’s state-law claim against the
City for false arrest.
III. Plaintiff has not established a Monell claim against the
City of Portland.
City Defendants assert they are entitled to summary judgment
as to Plaintiff’s § 1983 claim for unlawful seizure in violation
of the Fourth Amendment because Plaintiff has not established
there is any policy, practice, or custom of the City that caused
a violation of Plaintiff’s constitutional rights.
The Supreme Court has held liability of a government body
will lie only when "action pursuant to official municipal policy
of some nature caused a constitutional” violation and not on the
basis of respondeat superior.
Monell, 436 U.S. at 691.
Such
liability may attach only when an employee acted pursuant to an
expressly adopted official policy or pursuant to a longstanding
practice or custom.
See, e.g., Lytle v. Carl, 382 F.3d 978, 981
(9th Cir. 2004); Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.
2003).
"The 'official policy' requirement was intended to
distinguish acts of the municipality from acts of employees of
24 - OPINION AND ORDER
the municipality, and thereby make clear that municipal liability
is limited to action for which the municipality is actually
responsible."
Pembaur v. City of Cincinnati, 475 U.S. 469, 479
(1986)(emphasis in original).
Municipal "[l]iability may attach
. . . only where the municipality itself causes the
constitutional violation through 'execution of a government's
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy.'"
Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 984 (9th
Cir. 2002)(quoting Monell, 436 U.S. at 694).
The Supreme Court and Ninth Circuit have made clear that
municipalities cannot be held liable when the individual officer
has not inflicted any constitutional injury under Monell.
See,
e.g., City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986)(“neither Monell . . . nor any other of our cases
authorizes the award of damages against a municipal corporation
based on the actions of one of its officers when in fact the jury
has concluded that the officer inflicted no constitutional
harm.”); Yousefian v. City of Glendale, 779 F.3d 1010, 1016 (9th
Cir. 2015)(“[M]unicipalities cannot be held liable when the
individual police officer has inflicted no constitutional injury.
Because Yousefian's § 1983 claims against [Officer] Lizarraga and
[Detective] Kmbikyan fail, his municipal liability claim also
necessarily fails.”).
25 - OPINION AND ORDER
The Court already has concluded Officer Crooker had both
independent probable cause to detain Plaintiff and to remove him
to OHSU as well as a duty to do so pursuant to § 426.228(2).
The
Court also has concluded Officer Crooker did not violate
Plaintiff’s rights under the Fourth Amendment.
The Court,
therefore, also concludes the City cannot be held liable because
Plaintiff has not established his constitutional rights were
violated.
Accordingly, the Court grants City Defendants’ Motion for
Summary Judgment as to Plaintiff’s Monell claim against the City.
CONCLUSION
For these reasons, the Court GRANTS City Defendants’ Motion
(#165) for Summary Judgment and DISMISSES with prejudice
Plaintiff’s claims against City Defendants.
IT IS SO ORDERED.
DATED this 17th day of May, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
26 - OPINION AND ORDER
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