Wagoner v. City of Portland et al

Filing 81

OPINION and ORDER - The Court DENIES Defendants' Motion to Strike 77 . The Court GRANTS Defendants' Motion for Summary Judgment 52 as to all of Wagoner's claims. Wagoner's lawsuit is dismissed with prejudice. IT IS SO ORDERED. DATED this 31st day of May, 2017, by United States Magistrate Judge John V. Acosta. (copy mailed to plaintiff) (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

PRECIOUS WAGONER,
Plaintiff,

Case No. 3:14-cv-2063-AC
OPINION AND ORDER

v.
CITY OF PORTLAND, JOEL OCKUNZZI,
and CHRISTOPHER GRYPHON,
Defendants.
___________________________________
ACOSTA, Magistrate Judge:
Pro se plaintiff Precious Wagoner (“Wagoner”) brings this civil rights action under 42 U.S.C.
§ 1983 and Oregon law against Defendants City of Portland (“the City”), Joel Ockunzzi
(“Ockunzzi”), and Christopher Gryphon (“Gryphon”) (collectively, “Defendants”). Ockunzzi and
Gryphon (collectively, “the Officers”), officers of the Portland Police Bureau (“PPB”), arrested
Wagoner in 2012 following a traffic stop. Wagoner asserts fifteen causes of action against the City,
Ockunzzi, and Gryphon, challenging the stop, arrest, use of force during the arrest, detention, and
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prosecution. At the core of her claims, Wagoner alleges the stop and arrest were discriminatory and
not supported by probable cause. Defendants now move for summary judgment on all of Wagoner’s
claims. (ECF No. 52.) For the reasons that follow, the court grants Defendants’ motion.
Preliminary Procedural Matters
I. Consideration of Unverified Filings.
In her responses to Defendants’ motions, Wagoner did not attest under the penalty of perjury
that her factual assertions were true and correct.1 (ECF Nos. 74, 76, 80.) The court therefore cannot
consider Wagoner’s responses as evidence for purposes of summary judgment. FED. R. CIV. P.
56(c)(1); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (attestation under penalty or perjury is
prerequisite for considering a pro se plaintiff’s motions and pleadings on summary judgment).
Accordingly, the court will not consider as evidence Wagoner’s factual assertions in her responses
to Defendants’ motions.
II. Motion to Strike.
Wagoner filed an additional response to Defendants’ motion after Defendants filed a reply.
(ECF No. 76.) Defendants moved to strike Wagoner’s second filing as improper under the Federal
and Local Rules of Civil Procedure. (ECF No. 77.) In response, Wagoner filed a document
replicating portions of her complaint. (ECF No. 80.)
Defendants are correct that Local Rule 7(f)(3) bars briefing beyond one response and one
reply on a motion for summary judgment, with an exception not applicable here. Wagoner’s

1

The court sent Wagoner a summary-judgment advice notice on August 12, 2016, laying out
the evidentiary requirements for opposing a summary-judgment motion. (ECF Nos. 61, 62.) It is
unclear whether Wagoner received this notice, due to her failure to notify the court of her changed
address, as required by the Local Rules of Civil Procedure. (ECF Nos. 64, 67.)
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additional response was procedurally improper. Nonetheless, the court declines to strike Wagoner’s
additional response. Wagoner is proceeding without the assistance of counsel. Her filings in this
case, including her response, the challenged second response, and her response to the motion to
strike, total nine pages. Wagoner did not seek to introduce new evidence in her additional briefing,
or otherwise cause Defendants undue prejudice. Accordingly, the court exercises its discretion and
declines to strike Wagoner’s additional response.
Factual Background
The following statement of facts primarily derives from the evidence submitted by
Defendants as part of the motion for summary judgment. In addition to affidavits from Ockunzzi,
Gryphon, and other PPB officers, Defendants submitted the transcripts from the bench trials of
Wagoner and Beth Lamar (“Lamar”) on traffic violation charges. Although Wagoner’s Second
Amended Complaint (“SAC”) (ECF No. 7) is not admissible evidence at this stage of the
proceedings, the court references some of its uncontested factual allegations to provide context. See
Moran v. Selig, 447 F.3d 748, 759–60 (9th Cir. 2006) (a complaint “cannot be considered as
evidence at the summary judgment stage because it is unverified”).
A. Initial Traffic Stop
Wagoner and Beth Lamar (“Lamar”) attended an event at the Q Center, an LGBTQ2
organization in north Portland, on November 18, 2012. (SAC ¶ 12.) Ockunzzi and Gryphon were
on patrol together, in a “partner car.” (Decl. of Joel Ockunzzi (“Ockunzzi Decl.”) (ECF No. 54),
¶ 3.) Ockunzzi drove the police car. (Id.) Wagoner and Lamar left the event in a Honda Civic
driven by Lamar (“the Honda”). (SAC ¶ 12.) Ockunzzi and Gryphon encountered the Honda on
2

LGBTQ is an acronym for Lesbian, Gay, Bisexual, Transgender, and Queer.

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Martin Luther King Boulevard (“MLK”). (Ockunzzi Decl. ¶ 4.) Prior to encountering the Honda
on MLK, Ockunzzi and Gryphon had not driven past the Q Center or along the same route as
Wagoner and Lamar. (Id. ¶ 5, Decl. of Christopher Gryphon (“Gryphon Decl.”) (ECF No. 55), ¶ 6;
Decl. of Garrett Dow (“Dow Decl.”) (ECF No. 56), ¶ 5 & Ex. A.) Ockunzzi observed the Honda
make an illegal right turn onto MLK. (Ockunzzi Decl. ¶ 5.) Following behind the Honda, Ockunzzi
observed two additional traffic infractions — exceeding the posted speed limit and changing lanes
without signalling. (Id. ¶¶ 6–7.) Ockunzzi then initiated a traffic stop. (Id. ¶ 8.) Lamar pulled over,
into a gas station parting lot. (Id.) Ockunzzi and Gryphon stopped and approached the Honda on
foot. (Id. ¶ 8; Gryphon Decl. ¶ 6)
Ockunzzi first approached Lamar, and requested her driver’s license, vehicle registration, and
proof of insurance. (Ockunzzi Decl. ¶ 9.) Ockunzzi and Gryphon observed Lamar and Wagoner
sitting in the Honda without wearing seatbelts. (Id. ¶ 9, Gryphon Decl. ¶ 6, Mot. for Summ. J. (ECF
No. 52), Ex. 1 (“Lamar Tr.”), 4/2–4, Ex. 2 (“Wagoner Tr.”), 3/20–24.) Ockunzzi asked for
Wagoner’s name and date of birth, to write her a citation for not wearing a seatbelt while riding in
a moving car. (Ockunzzi Decl. ¶¶ 10–11.) Lamar stated “she’s not driving so that’s illegal, but it’s
Precious Lamar.” (Id. ¶ 10.) Ockunzzi asked Wagoner for her date of birth. (Id.) Wagoner replied
“I’m not driving, you can’t ask me.” (Id.)
Ockunzzi returned to the police car. (Id. ¶ 12.) There, he conducted a database search for
the license plate of the Honda and for Lamar’s name. (Id.) The search returned an oustanding arrest
warrant associated with Lamar’s name. (Id.) The warrant was for Wendy Duffey (“Duffey”). (Id.)
The search result gave a physical description of Duffey and indicated an association with Lamar.
(Id.) According to the police database, Duffey had a similar physical build to Wagoner. (Id.) Both
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Duffey and Wagoner have tattoos on their hands. (Id.) Based on the similarities between Duffey’s
description and Wagoner, Duffey and Wagoner’s shared association with Lamar, and Wagoner’s
refusal to provide identifying information, Ockunzzi believed Wagoner was not “Precious Lamar,”
but was Duffey. (Id. ¶¶ 12–14.)
While Ockunzzi conducted the database search, Gryphon stayed with the Honda. (Gryphon
Decl. ¶ 7.) Gryphon approached Lamar’s window and began talking with her. (Id.) Lamar
repeatedly asked why the Officers had stopped the Honda and why Ockunzzi wanted to know
Wagoner’s name. (Id.) Lamar also asserted that the Officers could not lawfully ask about anything
other than Lamar’s driver’s license, the Honda’s registration, and liability insurance. (Id.) Gryphon
asked Wagoner for her name. (Id.) Lamar reiterated her belief that Gryphon could not lawfully ask
Wagoner for her name. (Wagoner Tr. 12/14–16.) Gryphon responded “I’m speaking to the white
male to your right.” (Id. 12/16–17.) Lamar informed Gryphon that Wagoner was a black woman.
(Id. 12/22–23.) Ockunzzi returned to the Honda and approached Wagoner’s window. (Ockunzzi
Decl. ¶ 13.) Again, Ockunzzi asked Wagoner for her name and date of birth. (Id.) Wagoner said
“You can’t fucking ask me that.” (Id.)
B. Wagoner’s Arrest.
Wagoner and the Officers’ accounts of her arrest differ. According to Ockunzzi, he informed
Wagoner that he needed her name to confirm whether she had an arrest warrant, and also needed the
information to fill out a traffic citation. (Id.) Wagoner began making exaggerated movements,
denied having any identification with her, and continued to assert that Ockunzzi had no right to talk
to her. (Id. ¶ 14.) In Ockunzzi’s experience, Wagoner’s conduct was consistent with that of persons
attempting to avoid outstanding warrants. (Id.). Ockunzzi told Wagoner that he would arrest her
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if she did not tell him her name and date of birth. (Id. ¶ 15.) Wagoner stated she did not need to
identify herself and again refused to give her name. (Id.) Ockunzzi repeated that he would arrest
Wagoner if she did not identify herself. (Id.) Wagoner and Lamar began to yell at one another about
whether Wagoner should identify herself. (Id.)
Ockunzzi then told Wagoner she was under arrest and told her to place her hands on her
head. (Id. ¶ 16.) Wagoner shouted that she was not under arrest. (Id.) Ockunzzi took hold of
Wagoner’s hand and began to pull her from the Honda. (Id.) Wagoner used her other hand to pull
herself back into the car. (Id.) Gryphon saw and heard that Wagoner was not cooperating, and
moved to the passenger side of the Honda to assist Ockunzzi. (Gryphon Decl. ¶ 9.) The Officers
tried together to pull Wagoner from the car. (Id. ¶ 10, Ockunzzi Decl. ¶ 16.) Wagoner continued
to pull herself into the car. (Ockunzzi Decl. ¶ 16.) Lamar got out of the Honda and began to yell
at the Officers. (Id., Gryphon Decl. ¶¶ 10–11.) The confrontation escalated, and Ockunzzi used his
radio to call for additional officers. (Ockunzzi Decl. ¶ 16.) Ockunzzi threatened to use pepper spray
or a Taser on Wagoner if she continued to resist, but decided against using either. (Id. ¶ 17.)
Wagoner opposed being pulled from the car by kicking and pulling herself into the car. (Id.)
Wagoner locked some of the car doors in an attempt to keep the Officers out of the car. (Id. ¶ 18.)
The Officers pulled Wagoner out of the car after an additional physical struggle. (Id.
¶¶ 18–20.) PPB Officer James Quackenbush (“Quackenbush”) arrived in response to Ockunzzi’s
call for additional officers. (Decl. of James P. Quackenbush (“Quackenbush Decl.”) (ECF No. 57),
¶¶ 3–4.) Once out of the Honda, Ockunzzi and Gryphon attempted to handcuff Wagoner. (Ockunzzi
Decl. ¶ 20, Gryphon Decl. ¶ 16; Quackenbush Decl. ¶¶ 4, 6.) Wagoner twisted her torso, kicked, and
held her arms against her torso while the Officers attempted to handcuff her. (Ockunzzi Decl. ¶ 20,
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Gryphon Decl. ¶ 16; Quackenbush Decl. ¶¶ 4, 6.)
In Wagoner’s account, Ockunzzi did not inform her of the warrant or his need to issue a
traffic citation. (Wagoner Tr. 21/22–22/1.) Instead, Ockunzzi returned to the Honda and asked
Wagoner for her name and other information. (Id. 21/5–11.) Wagoner told Ockunnzi she did not
have to talk to him because she was not driving. (Id. 21/9–11.) Ockunzzi and Gryphon continued
to pressure Wagoner to identify herself. (Id. 21/12–13.) Lamar told the Officers Wagoner’s full
name, which Wagoner confirmed. (Id. 21/13–15.) The Officers then threatened to “mace” Wagoner
and began to pull her out of the car. (Id. 21/16–19.) She briefly resisted the officers because she did
not understand what was happening or why she was being arrested. (Id. 21/16–20.) The Officers
told her she was under arrest for giving false information. (Id. 21/22–23.)
The remaining facts are not in dispute, based on the record before the court. The Officers
handcuffed Wagoner while she was prone on the ground. (Ockunzzi Decl. ¶ 20, Gryphon Decl. ¶ 18;
Quackenbush Decl. ¶¶ 4, 6.) Ockunzzi searched Wagoner’s person, including by lifting her shirt
above her waist to check the waistline of her pants for weapons or other contraband. (Ockunzzi
Decl. ¶¶ 21–22, Gryphon Decl. ¶ 19.) Wagoner objected loudly to Ockunzzi’s search of her person,
asserting only a female officer could search a female arrestee. (Ockunzzi Decl. ¶ 21, Gryphon Decl
¶ 19.) During or after the search, Ockunzzi asked Wagoner why she fought the Officers. (Ockunzzi
Decl. ¶ 21.) Wagoner stated she did not think the Officers could legally talk to her, and that she had
“freaked out” because she did not think she was subject to arrest. (Id.) PPB Sergeant Jan Ellertson
(“Ellertson”), who arrived as the Officers handcuffed Wagoner, took statements from the Officers
and witnesses to the incident. (Id. ¶ 23, Ellertson Decl. ¶ 5 & Ex. A.) While still at the scene of the
arrest, Ockunzzi issued Wagoner a citation for violating ORS § 811.210 by failing to wear a seatbelt.
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C. Booking and Charges.
The Officers transported Wagoner to PPB North Precinct (“North Precinct”). (Ockunzzi
Decl. ¶ 25.) At North Precinct, the Officers placed Wagoner in a holding cell. (Id. ¶ 26.) The
holding cell did not contain hazardous materials such as used toilet paper or blood. (Id., Ellertson
Decl. ¶¶ 6–7.) In the holding cell, Ockunzzi took three photographs of Wagoner’s head and upper
torso — one head-on, and one from each side. (Ockunzzi Decl. ¶ 26 & Ex. C.) Ellertson spoke with
Wagoner while Wagoner was in the holding cell. (Ellertson Decl. ¶¶ 6, 8.) While talking to
Ellertson, Wagoner again stated she had “freaked out” during the stop and her arrest. (Id. ¶ 8.) After
spending approximately 45 minutes at North Precinct, the Officers transported Wagoner to the
Multnomah County Detention Center (“MCDC”) for booking. (Ockunzzi Decl. ¶ 27.) Ockunzzi
charged Wagoner with violating ORS § 807.620 by using a false name and ORS § 162.315 by
resisting arrest. (Id. ¶ 27.)
The criminal charges against Wagoner for resisting arrest and using a false name were
dismissed at arraignment for an unknown reason. (Multnomah Cnty. Cir. Ct. Register of Actions,
MSJ Ex. 4.) At a bench trial, Multnomah County Circuit Judge Stephen Bushong found Wagoner
not guilty of the seatbelt violation. (Wagoner Tr. 25:6–7.)
Legal Standard
Federal Rule of Civil Procedure (“Rule”) 56(c) authorizes summary judgment if no genuine
issue exists regarding any material fact and the “moving party is entitled to judgment as a matter of
law.” The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party must demonstrate its entitlement to summary judgment
while “[t]he party opposing the motion is under no obligation to offer affidavits of any other
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materials in support of its opposition.” Henry v. Gill Industries, Inc., 983 F.2d 943, 949 (9th Cir.
1993). Nonetheless, if the moving party shows the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for
trial. Celotex, 447 U.S. at 324. A nonmoving party cannot defeat summary judgment by relying on
the allegations in the complaint, or with unsupported conjecture or conclusory statements.
Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
The court’s role is not to “weigh the evidence or determine the truth of the matter, but only
determine[] whether there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d 1047 (9th
Cir. 1999). The court must view the inferences drawn from the facts in the light most favorable to
the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982).
The court has an obligation to review the sufficiency of a motion for summary judgment and
supporting evidence, even if the non-moving party does not submit a response supported by
evidence. In re Rogstad, 126 F.3d 1224, 1227 (9th Cir. 1997).
Analysis
Wagoner’s claims challenge the entirety of Ockunzzi and Gryphon’s encounter with her and
Lamar — from the initial traffic stop to her post-arrest detention.
Defendants submitted six affidavits in support of their motion for summary judgment,
accompanied by documentary evidence. Wagoner submitted images of two documents apparently
associated with her criminal charges and traffic violation from the incident. The transcripts of
Wagoner and Lamar’s bench trials are properly authenticated by the court reporter, and thus
appropriate to consider as evidence. FED. R. CIV. P. 80(c); Orr v. U.S. Bank, NT & SA, 285 F.3d 764,
777 (9th Cir. 2002) (applying Rule 80(c) to trial transcripts from state court).
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I. Tort Claims under Oregon law.
Wagoner brings the following tort claims under Oregon law: wrongful arrest, two separate
assault claims, battery, negligence, false imprisonment, malicious prosecution, and wrongful use of
civil proceedings. Under the Oregon Tort Claims Act, actions against public employees for torts
committed in the course of employment must be brought against the public body. OR. REV. STAT.
§ 30.265(2). Wagoner’s state-law claims are therefore against the City, based on Ockunzzi and
Gryphon’s conduct during the course of their employment. The City seeks summary judgment on
all of Wagoner’s state-law claims as either unsupported by the record or negated by probable cause.
A. False Arrest and Imprisonment.
Wagoner asserts claims for wrongful arrest and imprisonment, arguing she was handcuffed,
arrested, and taken into police custody without a warrant or probable cause. Wrongful arrest and
wrongful imprisonment have the same elements under Oregon law. Hiber v. Creditors Collection
Serv., 154 Or. App. 408, 413 (1998) (citing Lucas v. J.C. Penny Co., 233 Or. 345, 353 (1963)).
Claims for wrongful arrest and wrongful imprisonment may challenge different aspects of an
individual’s arrest and detention. Fossen v. Clackamas County, 271 Or. App. 842, 847–48 (2015)
(false arrest claim challenged initial arrest; wrongful imprisonment challenged detention after initial
arrest). Under Oregon law, the elements of false arrest are: “(1) the tortfeasor must confine the
plaintiff; (2) the tortfeasor must intend the act that causes the confinement; (3) the plaintiff must be
aware of the confinement; and (4) the confinement must be unlawful.” Singh v. McLaughlin, 255
Or. App. 340, 348 (2013) (citing Hiber, 154 Or. App. at 413). “The gravamen of the claim is ‘the
unlawful imposition of restraint on another's freedom of movement.” Id. (citing Hiber, 154 Or. App.
at 413). Initially lawful confinement may become unlawful if the confinement continues after
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“officers exhaust[] their authority to detain” a person. Walker v. City of Portland, 71 Or. App. 693,
699 (1985).
Here, Wagoner asserts a false arrest claim based on her initial arrest at the Chevron. (SAC
¶¶ 41–42.) Her false imprisonment claim arises from her transportation from the scene and fourhour detention. (Id. ¶¶ 43–44.) The City contests only the fourth element of both claims: whether
Wagoner’s confinement was unlawful. (MSJ at 12–18.) Accordingly, the court must determine
whether the Officers lawfully arrested and detained Wagoner.
The asserted legal basis for the Officers’ restraint on Wagoner’s freedom of movement
shifted during Wagoner’s encounter with the Officers. Wagoner was initially detained under the
Officers’ authority to investigate her alleged traffic violation of not wearing a seatbelt, and to identify
her to issue a citation for the violation. Before the Officers completed the investigative stop,
Ockunzzi told Wagoner she was under arrest. Wagoner then physically resisted Ockunzzi’s attempts
to arrest her, leading the Officers to take Wagoner into custody for resisting arrest. The court must
determine whether the Officers had legal authority for each of the three impositions of restraint on
Wagoner’s freedom of movement.
Wagoner argues she is innocent of all charges previously filed against her, including the seat
belt violation, using a false name, and resisting arrest. As an initial matter, the court notes guilt and
probable cause are materially different standards. The City need not prove that Wagoner is guilty
of the offenses with which she was charged. Instead, in this civil lawsuit, the City need only
establish a legal justification for its actions — reasonable suspicion or probable cause, depending
on the context. The standard for justifying an arrest is a lower evidentiary burden than establishing
guilt beyond a reasonable doubt. State v. Gibson, 268 Or. App. 428, 431–52 (2015) (“Probable cause
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is not certainty; ‘there is a vast difference between proof of probable cause and proof of guilt.’”)
(quoting State v. Tacker, 241 Or. 597, 601 (1965)).
1. Traffic Stop and Investigative Detention.
The City first argues the Officers lawfully detained Wagoner to issue a citation for failing to
wear a seatbelt. The court agrees. Oregon law allows police officers to “stop and detain a person
for a traffic violation for the purposes of investigation reasonably related to the traffic violation,
identification and issuance of citation.” OR. REV. STAT. § 810.410(3)(b). An officer must have
probable cause to stop and detain a person for a suspected traffic violation. Under Oregon law,
probable cause has objective and subjective components. State v. Stookey, 255 Or. App. 489, 491
(2013). “First, at the time of the stop, the officer must subjectively believe that a violation has
occurred, and second, that belief must be objectively reasonable under the circumstances.” Id.
(citing State v. Miller, 345 Or. 176, 186 (2008)).
The Officers had probable cause to stop the Honda and detain Wagoner to issue a citation.
First, The Officers’ unrebutted testimony establishes that they observed Lamar commit multiple
traffic violations. (Lamar Tr. 3/5–17; Ockunzzi Decl. ¶¶ 6–7; Gryphon Decl. ¶ 4.) Because they
believed Lamar committed multiple traffic violations, the Officers had probable cause to stop the
Honda. OR. REV. STAT. § 810.410(2)(a); Stookey, 255 Or. App. at 491. The Officers’ unrebutted
testimony also shows that they saw Wagoner not wearing a seatbelt in the Honda, immediately after
the Honda left the public street. (Lamar Tr. 4/3–4; Wagoner Tr. 17/9–25; Ockunzzi Decl. ¶ 9;
Gryphon Decl. ¶ 6.) It was objectively reasonable to believe that Wagoner had not been wearing a
seatbelt while the car was moving, violating ORS § 811.210. (See Wagoner Tr. 24/18–25/1 (Judge
Bushong reaching same conclusion)). Accordingly, the Officers had lawful authority to detain
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Wagoner to identify her and issue a citation.
2. Initial Arrest.
The Officers’ restraint on Wagoner’s liberty escalated when Ockunzzi told Wagoner she was
“under arrest” and directed her to place her hands on her head. (Ockunzzi Decl. ¶ 16.) Here, the
City argues Ockunzzi lawfully detained Wagoner to cite her for failing to wear a seatbelt and to
determine whether she was subject to the Duffey warrant. (MSJ at 17.) The City then argues
Wagoner’s subsequent physical resistance gave Ockunzzi probable cause to arrest her for resisting
arrest. (Id. at 16–17.)
The city’s argument is inconsistent with the elements of resisting arrest and the factual
record. Under ORS § 162.315(2)(a), “arrest” is defined by reference to ORS § 133.005(1), which
expressly states investigative stops are not arrests. If Wagoner was detained only as part of an
investigative stop prior to her acts of physical resistance, her subsequent arrest for resisting arrest
lacked legal justification. The City’s “detention” argument is also inconsistent with Ockunzzi’s
account of the incident. (Ockunzzi Decl. ¶ 16 (stating Ockunzzi told Wagoner “she was under
arrest”).) Even if Wagoner was lawfully arrested for resisting arrest, the City still must establish
lawful authority for Wagoner’s initial arrest to achieve summary judgment on the entirety of
Wagoner’s wrongful arrest claim. Accordingly, the court must determine whether Oregon law
allowed Ockunzzi to arrest Wagoner before she began to resist.
First, the City’s proffered reasons for Wagoner’s initial “detention” do not justify her arrest.
The City argues Ockunzzi had lawful authority to detain Wagoner to determine whether she was
subject to the Duffey warrant and to identify her to issue a traffic citation for failing to wear a
seatbelt. But the Duffey warrant did not allow Ockunzzi to arrest Wagoner. An arrest warrant only
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authorizes the arrest of the subject of the warrant. State v. Johnson, 120 Or. App. 151, 156 (1993).
Arresting a person under a warrant for another person is unlawful, even if done in good faith. Id. at
157 (citing Pierson v. Multnomah County, 310 Or. 48, 55 (1986)).
Oregon law also does not allow a police officer to arrest a passenger for identification
purposes during a traffic stop. Under ORS § 810.410(3)(a–b), an officer has authority to detain a
person to identify the person and issue a traffic citation, but lacks authority to arrest a person for a
traffic violation. The City nonetheless argues the arrest was justified by Wagoner’s refusal to
identify herself for the purposes of the citation, relying on the following quotation: “[W]hen an
officer subjects a person to a traffic stop, the officer has gained the authority to impose negative
consequences — further detention or arrest — if the person refuses to respond to a request for
identification.” State v. Suppah, 264 Or. App. 510, 527 (2014) (en banc), rev’d on other grounds,
358 Or. 565 (2016). The context of the quotation from Suppah requires a different conclusion. The
sentence preceding the quotation discusses a driver’s obligations during a traffic stop. Id. at 526 (“If,
for example, a driver does not provide identification to an officer . . . .”). Suppah involved a driver
who was stopped by police and gave a false name. Id. at 513. Failing to present a driver’s license
during a traffic stop is a misdemeanor. OR. REV. STAT. § 807.570(1)(b)(A), (5). An officer therefore
could arrest without a warrant a driver who refuses to identify themselves. See OR. REV. STAT.
§ 133.310(1)(b) (authorizing warrantless arrests for misdemeanors). No such statute applies to
passengers. Suppah therefore does not provide a basis for arresting a passenger who refuses to
identify herself during a traffic stop.
Accordingly, neither the Duffey warrant nor Wagoner’s refusal to identify herself provide
a legal basis for arresting Wagoner. Ockunzzi’s arrest of Wagoner was lawful only if he had
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probable cause to arrest her for an offense other than a traffic violation. OR. CONST. art. I, § 9; OR.
REV. STAT. § 133.310(1).

Under Oregon law, probable cause has statutory and constitutional

dimensions. Probable cause requires “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.” OR. REV. STAT.
§ 31.005(11).

Constitutionally, probable cause has both subjective and objective components.

“[T]he subjective component of the probable cause inquiry is satisfied if the officer believes that he
or she has lawful authority to restrain the individual's liberty.” Miller, 345 Or. at 185. The objective
component requires that the officer be aware of facts supporting an objectively reasonable conclusion
that probable cause exists. Id. at 188. Probable cause may exist even if the officer had a different,
incorrect subjective belief that she could arrest the person, so long as the officer was aware of facts
objectively sufficient to establish probable cause. Id. at 185.
The court concludes Wagoner’s initial arrest was lawful because Ockunzzi had probable
cause to arrest Wagoner for using a false name. Ockunzzi’s declaration states he subjectively
believed he had the authority to arrest Wagoner based on the Duffey warrant and her refusal to
provide her name. (Ockunzzi Decl. ¶¶ 14, 16.) So long as Ockunzzi was aware of facts providing
an objectively reasonable basis for probable cause to arrest Wagoner, the arrest was lawful. Miller,
345 Or. at 185, 188. The undisputed facts in the record show Ockunzzi was aware of facts allowing
an objectively reasonable conclusion that Wagoner committed a misdemeanor by using the false
name Lamar provided for Wagoner, in violation of ORS § 807.620.
The statute provides: “A person commits the offense of giving false information to a police
officer if the person knowingly uses or gives a false or fictitious name, address or date of birth to any
police officer who is enforcing motor vehicle laws.” OR. REV. STAT. § 807.620(1). Ockunzzi was
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aware of facts allowing a reasonable conclusion that, more likely than not, Wagoner had violated
ORS § 807.620(1). First, Ockunzzi could reasonably conclude Wagoner knew he was a police
officer enforcing motor vehicle laws. Ockunzzi was wearing a police uniform, displaying his badge,
and driving a marked patrol car. (Lamar Tr. 2/25–3/1.) He previously told Lamar and Wagoner that
they were both being stopped for, among other things, failure to wear seatbelts. (Ockunzzi Decl. ¶
9.)
Second, Ockunzzi could reasonably conclude Wagoner’s name was not “Precious Lamar.”
Upon searching his police database, Ockunzzi discovered an arrest warrant for Duffey, a person
associated with Lamar who roughly matched Wagoner’s description.3 (Id. ¶ 12.) Wagoner’s
responses to Ockunzzi’s renewed requests for her name and date of birth were, in Ockunzzi’s
experience, consistent with the behavior of a person trying to conceal their identity to avoid an arrest
warrant. (Id. ¶ 14.) In totality, the facts as Ockunzzi perceived them allowed a reasonable
conclusion that Wagoner was Duffey. It is irrelevant to the probable cause analysis that Wagoner
is, obviously, not Duffey. See State v. Isley, 182 Or. App. 186, 190 (2002) (probable cause may be
based on an incorrect conclusion, so long as the conclusion is objectively reasonable).
Third, Ockunzzi could reasonably conclude Wagoner had “used” the incorrect name Lamar
provided. “Use” has no statutory definition and has not been construed by Oregon courts. But see
State v. Suppah, 358 Or. 565, 567 (2016) (giving a false name); State v. Bishop, 157 Or. App. 33,
3

The City also argues Ockunnzi also searched for the name “Precious Lamar” and found no
corresponding record. Viewing the record in the light most favorable to Wagoner, the court cannot
accept this characterization of the evidence. The City’s citation to the Lamar Hearing Transcript
refers to Ockunzzi’s testimony that he “was unable to get a date of birth” for the incorrect name.
(Lamar Tr. 4/10–12.) This statement could refer to a database search or to Wagoner’s refusal to
provide her date of birth. (See Ockunzzi Decl. ¶ 10.) Ockunzzi’s declaration states he searched for
the license plate and “Lamar’s (the driver’s) name.” (Id. ¶ 11.)
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35 (1998) (same); State v. Robinson, 107 Or. App. 410, 412 (1991) (same). Two Oregon rules of
statutory interpretation are instructive, however. First, interpreting an Oregon statute begins with
the text and context of the statute. State v. Gaines, 346 Or. 160, 171 (2009). When a statutory term
is not defined in the statute, Oregon courts apply a word’s “ordinary meaning,” using a dictionary
definition. Potter v. Schlesser Co., 335 Or. 209, 213 (2003). Second, Oregon courts must give effect
to all terms and provisions of a statute. Vsetecka v. Safeway Stores, Inc., 337 Or. 502, at 510 (2004)
(citing ORS § 174.010); Godfrey v. Fred Meyer Stores, 202 Or. App. 673, 682 (2005).
Within this analytical framework, the court concludes “us[ing] a false or fictitious name”
includes failing to correct a false name given by another. First, the dictionary definition of “use”
generally connotes employing or relying on something to achieve a goal. WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (unabridged ed. 1993) (definitions include “to put into action or
service,” “have recourse to or employment of,” “to make instrumental to an end or process,” and
“carry out a purpose or action by means of.”) . Second, “use” appears in parallel with “give.” OR.
REV. STAT. § 810.620(1). To give effect to all words in the statute, “use” must mean something
different than “give.” See Godfrey, 202 Or. App. at 682 (“Ordinarily, we are constrained to construe
statutes to avoid such potential redundencies.”).

Giving a false name generally involves

affirmatively providing a false name to a police officer. See, e.g., Suppah, 358 Or. at 567 (stating
a false name); Robinson, 107 Or. App. at 412 (stating a false name and providing a document
containing a false name). To give effect to all terms in the statute, “use” must mean something
different from “give.” Godfrey, 202 Or. App. at 682. Accordingly, a person “uses” a false name
in violation of ORS § 810.620 when the person employs or relies on a false name other than by
affirmatively providing the false name.
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The facts, as Ockunzzi perceived them, allowed a reasonable conclusion that Wagoner had
used a false name by relying on the false name Lamar provided. In response to Ockunzzi’s inquiry,
Lamar identified Wagoner as “Precious Lamar.” (Ockunzzi Decl. ¶ 10.) Wagoner proceeded with
the interaction without correcting the false name. (Id.) The totality of the circumstances also
allowed a reasonable conclusion that, more likely than not, Wagoner did so knowingly. Wagoner
argues she did not intend to give a false name, but probable cause does not require proof of mental
state. See Gibson, 268 Or. App. at 431–52. The facts as Ockunzzi perceived them — especially
Ockunzzi’s perception that Wagoner was attempting to avoid a warrant — were enough to allow a
reasonable conclusion that Wagoner acted with the required mental state.
Ockunzzi therefore had probable cause to arrest Wagoner for using a false name, under ORS
§ 807.620. Because using a false name is a misdemeanor, Ockunzzi had lawful authority to arrest
Wagoner without a warrant. OR. REV. STAT. § 133.310. Accordingly, Ockunzzi lawfully arrested
Wagoner before he attempted to pull her from the car. See Miller, 345 Or. at 186 (arrest remains
valid where objective basis for probable cause existed, even if subjective basis for arrest was
improper).
Wagoner’s arguments regarding providing false information do not change the court’s
analysis. Wagoner argues the appearance of her correct name on the citation and other documents
shows she provided her name to the Officers later. (Resp. (ECF No. 74) at 1 & Exs. 1, 3.) She also
testified during her bench trial that Lamar correctly identified Wagoner after Ockunzzi returned to
the Honda, and was “pressuring” her to identify herself. (Wagoner Tr. 21/12–16.) But neither of
these contentions disturb the court’s conclusion that probable cause was present. The conduct
creating probable cause for Wagoner’s arrest occurred before the Officers filled out the documents
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Wagoner offers, and before Ockunzzi returned to the Honda after searching the police database.
Wagoner’s subsequent correct identification of herself does not nullify her prior conduct.
3. Resisting Arrest.
Wagoner was also arrested for resisting arrest, a misdemeanor under ORS § 162.315. Section
315 provides: “A person commits the crime of resisting arrest if the person intentionally resists a
person known by the person to be a peace officer or parole and probation officer in making an
arrest.” “Resists” is defined as “the use or threatened use of violence, physical force or any other
means that creates a substantial risk of physical injury to any person and includes, but is not limited
to, behavior clearly intended to prevent being taken into custody by overcoming the actions of the
arresting officer.” OR. REV. STAT. § 162.315(2)(a, c). “Resist” excludes passive resistance. Id.
§ 162.325(2)(c).
The court concludes the Officers had probable cause to arrest Wagoner for resisting arrest.
The City provides declarations from Ockunzzi, Gryphon, and Quackenbush which describe
Wagoner’s conduct during her arrest. Wagoner’s actions included kicking, twisting her torso, and
pulling her arms against her torso to avoid being handcuffed. (Ockunzzi Decl. ¶¶ 17–18, 20;
Gryphon Decl. ¶ 16; Quacknbush Decl. ¶ 4.) While Wagoner disputes that she resisted arrest, she
does not offer admissible evidence controverting the City’s evidence. (See Resp. at 1.) Even if the
court considered Wagoner’s unsworn response as a declaration, her statement contests her mental
state, not her actions. (Id. (“Oregon law states you have to be aware and comprehend what is going
on to be considered [r]esisting arres[t].”)) But the City does not need to prove Wagoner’s mental
state to establish probable cause. Gibson, 268 Or. App. at 431–52. The facts as the Officers
perceived them allowed an objectively reasonable conclusion that Wagoner knew she was being
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arrested, and knew that the Officers were police officers. Moreover, Wagoner testified under oath
at her bench trial that she “did resist for a second.” (Wagoner Tr. 21/19.) The record does not allow
a reasonable dispute of fact regarding Wagoner’s initial physical resistance to being arrested.
Accordingly, the Officers also had probable cause to arrest Wagoner for resisting arrest.
In sum, the City establishes that all restraints placed on Wagoner’s liberty, from the initial
traffic stop to her transportation to North Precinct and MCDC, were lawful. The Officers had
probable cause to initially detain Wagoner to issue a citation, and later had probable cause to arrest
her for using a false name and resisting arrest. Accordingly, Wagoner cannot establish an essential
element of her wrongful arrest claim. The City is entitled to summary judgment on Wagoner’s first
and second claims.
B. Assault and Battery.
Wagoner’s third and fourth claims are state-law claims for assault and battery, brought
against the City. “[A]n assault is an intentional attempt by force to do violence to the person of
another, and a ‘battery is the actual application to such person of the attempted force and violence.’”
Cook v. Kinzua Pine Mills Co., 207 Or. 34, 47 (1956) (quoting Stark v. Epler, 59 Or. 262, 267
(1911)). Wagoner asserts assault and battery claims for the force the Officers used in arresting her,
and assault for being placed in a contaminated holding cell. The City seeks summary judgment on
the assault and battery claims. First, the City argues the Officers were privileged in using force on
Wagoner to effectuate her arrest. Second, the City contends the record shows Wagoner was not
placed in a contaminated holding cell.
A police officer has a complete defense to civil liability for assault or battery if the officer
used force as authorized by statute. Gigler v. City of Klamath Falls, 21 Or. App. 753, 763 (1975).
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An officer may use force “when and to the extent that the peace officer reasonably believes it
necessary [t]o make an arrest . . . unless the peace officer knows that the arrest is unlawful.” OR.
REV. STAT. § 161.235(1). The record shows the Officers pulled Wagoner out of the car and forced
her to a prone position on the ground. Ockunzzi was justified in pulling Wagoner out of the car
because she refused to submit to arrest, and physically resisted the Officers’ attempts to remove her
from the car. The record does not disclose any evidence that the Officers used force beyond the force
necessary to remove Wagoner from the car and place her in handcuffs. The City is therefore entitled
to summary judgment on Wagoner’s first assault claim and battery claim because the Officers used
force as authorized by ORS § 161.235(1).
The City seeks summary judgment on Wagoner’s second assault claim as a factual matter.
In her second assault claim, Wagoner alleges the Officers placed her in a holding cell with blood on
the walls and used toilet paper strewn around the cell. Wagoner argues the Officers or other PPB
officers attempted by cause harmful or offensive physical contact with Wagoner by placing her in
a cell with hazardous materials. The City submits declarations showing the holding cell did not
contain blood or used toilet paper. (Ockunzzi Decl. ¶ 26; Ellertson Decl. ¶¶ 6–7.) Wagoner
submitted nothing in response. Accordingly, the City is entitled to summary judgment on Wagoner’s
second assault claim because Wagoner failed to establish the presence of hazardous materials in the
holding cell. See Celotex, 477 U.S. at 322–23.
C. Malicious Prosecution
Wagoner asserts a claim for malicious prosecution, based on the criminal charges against
Wagoner under ORS § 807.620 for giving false information to a police officer. The elements of
malicious prosecution are:
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[TJP]

“(1) the institution or continuation of the original criminal proceedings; (2) by or at
the insistence of the defendant; (3) termination of such proceedings in the plaintiff’s
favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the
proceeding; and (6) injury or damage because of the prosecution.”
Blandino v. Fischel, 179 Or. App. 185, 190 (quoting Rose v. Whitbeck, 277 Or. 791, 795 modified
on other grounds, 278 Or. 463 (1977). As discussed above, the Officers had probable cause to arrest
Wagoner under ORS § 807.620 because the Officers reasonably believed Wagoner “used” a false
name by acquiescing to the incorrect name Lamar provided. The existence of probable cause negates
an element of Wagoner’s claim. Blandino, 179 Or. App. at 190. Accordingly, the City is entitled to
summary judgment on Wagoner’s malicious prosecution claim.
D. Wrongful Initiation of Civil Proceedings
Wagoner also asserts a claim for wrongful initiation of civil proceedings. Her wrongful
initiation claim is based on her citation for not wearing a seatbelt in violation of ORS § 811.210. The
elements of wrongful initiation of civil proceedings are similar to those of malicious prosecution:
(1) The commencement and prosecution by the defendant of a judicial proceeding
against the plaintiff; (2) The termination of the proceeding in the plaintiff’s favor; (3)
The absence of probable cause to prosecute the action; (4) The existence of malice,
or as is sometimes stated, the existence of a primary purpose other than that of
securing an adjudication of the claim; and (5) Damages.
Alvarez v. Retail Credit Ass’n of Portland, Or., Inc., 234 Or. 255, 259–60 (1963). The City moves
for summary judgment on this claim, arguing the Officers had probable cause to cite Wagoner for
failing to wear a seatbelt because they observed Wagoner without a seatbelt after the car was
stopped. Wagoner contends her acquittal at a bench trial on the citation eliminates probable cause.
The court disagrees. Circuit Court Judge Bushong concluded on the record at Wagoner’s bench trial
that the Officers had probable cause to issue the citation, based on the Officers’ observations once

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the car stopped. (Wagoner Tr. 24/18–25/1.) As this court previously concluded, the Officers had
probable cause to cite Wagoner for violation of ORS § 811.210. The existence of probable cause
is dispositive of Wagoner’s wrongful initiation of civil proceedings claim. Alvarez, 235 Or. at
259–50. The City is therefore entitled to summary judgment on Wagoner’s wrongful initiation of
civil proceedings claim.
E. Negligence
Wagoner also alleges a negligence claim based on the Officers’ conduct in arresting her. She
alleges the Officers “negligently caused her to chip her tooth and caused bruising and swelling to her
wrists” when handcuffing her. The City advances multiple arguments against Wagoner’s negligence
claim, but one argument is dispositive of the negligence claim. Courts in this District consistently
reject negligence claims at the summary judgment stage when the negligence claim is based on the
same facts as claims under 42 U.S.C. § 1983 or an intentional tort. E.g. Woods v. Gutierrez, No.
3:11-cv-1082-BR, 2012 WL 6203170, at *4 (D. Or. Dec. 12, 2012) (facts supporting § 1983 claim
cannot also support negligence claim); Whitfield v. Tri-Metropolitan Transp. Dist., No. 06-1644-HA,
2009 WL 839484, at *11 (D. Or. Mar. 30, 2009) (same). Similarly, intentional conduct, such as
arresting and handcuffing a person, cannot support a claim for negligence. Woods, 2012 WL
6203170, at *12 (arresting and handcuffing person was intentional conduct that could not support
a negligence claim); Kasnick v. Cooke, 116 Or. App. 580, 583 (1992) (evidence of intentional
conduct cannot give rise to a negligence claim). Accordingly, the City is entitled to summary
judgment on Wagoner’s negligence claim.
F. Intentional Infliction of Emotional Distress
Wagoner’s final state-law cause of action is for intentional infliction of emotional distress.
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Her complaint alleges two separate instances as grounds for the tort: being placed in a holding cell
with hazardous materials, and Ockunzzi taking photographs of Wagoner in the holding cell with their
cell phones while she was crying. Intentional infliction of emotional distress (“IIED”) requires proof
of the following elements: “(1) the defendant intended to inflict severe emotional distress on the
plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3)
the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable
conduct.” Sheets v. Knight, 308 Or. 220, 236 (1989). The relationship between a plaintiff and
defendant bears on the third element of IIED. McGanty v. Staudenraus, 321 Or. 352, 543–51
(1995)(overruling prior cases considering the relationship under the first element). The City seeks
summary judgment on Wagoner’s first IIED claim because Wagoner has not shown a genuine issue
of material fact regarding the presence of hazardous materials in the holding cell. For the reasons
previously stated regarding the assault claim, the court agrees there is no genuine issue of material
fact about the presence of used toilet paper and smeared blood in the holding cell. The City is
entitled to summary judgment on Wagoner’s first IIED claim.
The City next argues Ockunzzi did not intend to cause Wagoner severe emotional distress
when he took her picture in the holding cell. By focusing on intent, the City misplaces its argument.
McCanty held that intent includes knowledge that severe emotional distress “is certain, or
substantially certain, to result from [a defendant’s] conduct.” 321 Or. at 550. Wagoner needs to
show only that Ockunzzi was substantially certain that photographing her while crying, handcuffed,
and in a holding cell would cause severe emotional distress.
Nonetheless, Ockunzzi’s purpose in taking the picture and the context of their interaction is
relevant to the third element: whether the act was an “extraordinary transgression of the bounds of
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socially tolerable behavior.” Sheets, 308 Or. At 236. “Whether conduct constitutes an extraordinary
transgression of the bounds of socially tolerable conduct is a question of law.” Harris v. Pameco
Corp., 170 Or.App. 164, 171 (2000). The court considers “the purpose of the conduct and the means
used to achieve the result.” Shay v. Paulson, 131 Or. App. 270, 273 (1994). Behavior is considered
within its context, meaning ordinarily unpleasant and unacceptable conduct may be typical under
unusual circumstances. Hetfield v. Bostwick, 136 Or. App. 305, 310–11 (1995) (a former spouse’s
attempts to estrange her former husband from their children was not an “extraordinary transgression”
of social norms, in the context of family discord).
The record on summary judgment shows Ockunzzi used his PPB-issued cellular phone to
take three photographs of Wagoner, showing her face and upper body head-on and from each side.
(Ockunzzi Decl. ¶ 26 & Ex. C.) Ockunzzi represents that his intent in taking Wagoner’s picture in
the holding cell was to “document [the] physical condition of Wagoner since [the Officers] used
force.” (Id. ¶ 26.) A PPB “After Action Report” references the photographs, and suggests taking
photographs of a person after a police use-of-force was part of PPB policy. (Ellertson Decl., Ex. A
at 3.) Wagoner does not introduce any evidence contradicting Ockunzzi’s stated purpose or showing
Ockunzzi or Gryphon made improper comments or otherwise behaved inappropriately while taking
photographs of her.
The evidence in the record does not disclose “an extraordinary transgression” of social
norms. Being photographed while crying might be extreme behavior under ordinary circumstances.
But when in police custody after a physical altercation with officers, being photographed is not
“outrageous in the extreme.” See Hetfield, 136 Or. App. at 310–11 (holding that, when unusual and
unpleasant conduct is common under specific circumstances, such conduct is not outrageous in the
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extreme). Photographing a person following their arrest is sufficiently common that documenting
her physical condition was not an “extraordinary transgression of the bounds of socially tolerable
conduct” under the specific circumstances of this case. Id.
II. Federal Constitutional Claims under Section 1983.
Wagoner brings multiple claims under 42 U.S.C. § 1983, alleging constitutional violations
in her arrest and detention. The § 1983 claims are against Ockunzzi and Gryphon as individuals.
The Officers seek summary judgment on all of Wagoner’s claims.
A. Fourth Amendment Violation in Wagoner’s Arrest.
Wagoner first alleges a violation of the Fourth Amendment to the U.S. Constitution based
on her initial handcuffing and arrest. She claims the Officers arrested her without probable cause.
The Officers seek summary judgment on this claim because the Officers had probable cause to arrest
Wagoner. An arrest is constitutional if supported by probable cause, even if state law does not
authorize arrest for that offense. Virginia v. Moore, 553 U.S. 164, 176 (2008).

Probable cause

under the Fourth Amendment exists if “under the totality of circumstances known to the arresting
officers, a prudent person would have concluded that there was a fair probability that [the defendant]
had committed a crime.” United States v. Lopez, 482 F.3d 1067, 1071 (9th Cir. 2007) (alteration in
original) (quoting United States v. Smith, 790 F.2d 789, 792 (9th Cir.1986)). Probable cause is an
objective standard. Id.
Ockunzzi and Gryphon are entitled to summary judgment on Wagoner’s Fourth Amendment
claim arising from her arrest. Even before the Officers had probable cause to arrest Wagoner for
using a false name and resisting arrest, the Officers had probable cause to believe Wagoner
committed a violation under ORS § 811.210, for the reasons previously stated. Probable cause to
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believe Wagoner committed a violation defeats her Fourth Amendment claim based on her arrest.
A court in this district analyzed an arrest under analogous circumstances in Miller v. City of
Portland, No. 3:11-cv-1509-JE, 2014 WL 320555 (D. Or. Jan. 29, 2014). In Miller, the court
considered a Fourth Amendment claim arising from a man’s arrest for jaywalking. Id. at *2–3.
Jaywalking and failing to wear a seatbelt are both violations under Oregon law.

OR. REV. STAT.

§§ 811.210 (failure to wear a seatbelt); 814.020 (failure to obey pedestrian traffic control device).
The plaintiff in Miller alleged an unconstitutional arrest under the Fourth Amendment, because
Oregon law prohibits arrest for traffic violations. Miller, 2014 WL 320555, at *5 (citing OR. REV.
STAT. § 810.410). The court concluded the plaintiff’s arrest was constitutional because the officer
observed the plaintiff committing a traffic violation, even though the officer gave a different
subjective reason for the arrest. Id. at *9–10 (citing Moore).
As in Miller, Wagoner’s arrest was constitutional based on the seatbelt violation alone. The
officers reasonably believed there was a “fair probability” that Wagoner had violated ORS § 811.210
by failing to wear a seatbelt while the Honda was moving, as discussed supra in addressing
Wagoner’s wrongful initiation claim. Lopez, 482 F.3d at 1071. Although the Officers had a
different subjective reason for initiating Wagoner’s arrest, they were aware of facts creating probable
cause that Wagoner violated ORS § 811.210. Miller, 2014 WL 320555, at *10 (citing Devenpeck
v. Alford, 543 U.S. 146, 152–54 (2004). Accordingly, Wagoner’s arrest did not violate the Fourth
Amendment.
B. Fourth Amendment Violation through Excessive Force.
Wagoner also alleges the Officers used unconstitutionally excessive force in arresting her
when they took her to the ground, causing her face to contact the pavement and chipping a tooth.
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Claims for excessive force during an arrest or investigatory stop arise under the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 395 (1989). Under Graham, the court balances “the nature and
quality” of the force with the government’s interest in “(1) how serious the crime is, (2) whether the
suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect
was actively resisting arrest or attempting to evade arrest.” Mattos v. Agarano, 661 F.3d 433, 441
(2011). The court analyzes the reasonableness of the use of force “from the perspective of a
reasonable officers on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S.
at 396.
Construed in the light most favorable to Wagoner, these are the facts relating to the Officer’s
use of force: Wagoner had been uncooperative with the Officers throughout the stop. (Ockunzzi
Decl. ¶¶ 10, 13–16; Gryphon Decl. ¶ 9.) Ockunzzi suspected Wagoner was Duffey, the subject of
an outstanding arrest warrant. (Ockunzzi Decl. ¶¶ 12, 14.) Wagoner did not place her hands on her
head as ordered, so Ockunzzi attempted to pull her from the car. (Ockunzzi Decl. ¶ 16; Gryphon
Decl. ¶¶ 9–10.) Wagoner did not realize Ockunzzi was arresting her, and briefly resisted the
Officers’ efforts to pull her from the car. (Wagoner Tr. 21/16–20.) The Officers removed Wagoner
from the car after she stopped resisting. (Ockunzzi Decl. ¶ 20; Gryphon Decl. ¶ 15.) After pulling
Wagoner out of the car, the Officers forced her to the ground. (Ockunzzi Decl. ¶ 20; Gryphon Decl.
¶ 18.) Wagoner experienced wrist and back pain after the incident. (MSJ, Exs. 5, 6.)
The court first considers the “nature and quality of the force” and the resulting intrusion on
Wagoner’s Fourth Amendment rights. Mattos, 661 F.3d at 441. The Officers pulled on Wagoner’s
limbs to remover her from the car, and forced her to the ground once outside of the car. The Officers
did not use pepper spray, a Taser, batons, or other weapons. There is no evidence that the Officers
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[TJP]

punched, kicked, or otherwise struck Wagoner. There is also no evidence in the record supporting
Wagoner’s allegation that she chipped a tooth during the encounter. In sum, the Officers used a
minimal amount of force, resulting in a lesser intrusion on Wagoner’s Fourth Amendment rights.
Next, the court considers the severity of the crime at issue. Graham, 490 U.S. at 396. Here,
the crime at issue was giving false information. The Officers also had reason to believe Wagoner
was subject to the Duffey warrant, but the record does not state what offense or offenses gave rise
to the Duffey warrant. Accordingly, the only crime at issue, based on the record before the court,
was of minimal severity.
The court also considers whether Wagoner “posed an immediate threat to the safety of the
officers or others.” Graham, 490 U.S. at 396. Here, Wagoner’s physical resistance to being arrested
— however brief — posed some risk of injury to the Officers. Wagoner’s initial resistance included
kicking at Ockunzzi. (Ockunzzi Decl. ¶ 17.) Accordingly, Wagoner posed at least a risk of minor
injury to the Officers.
The final Graham factor is whether Wagoner was “actively resisting arrest or attempting to
evade arrest by flight.” Graham, 490 U.S. at 396. Wagoner’s physical resistance to her arrest is
undisputed, although the parties disagree about the duration of her resistance. (See Wagoner Tr.
21/19; Ockunzzi Decl. ¶¶ 16–20; Gryphon Decl. ¶¶ 10–18.) The Officers’ use of force during the
undisputed period of resistance — pulling on Wagoner’s limbs to remove her from the car — was
objectively reasonable under the circumstances. The Officers used the least intrusive means of force
to overcome Wagoner’s unlawful resistance to her arrest. For summary judgment purposes, the
court must credit Wagoner’s statement that her resistance was brief , meaning she stopped resisting
prior to being taken to the ground. But even then, the Officers’ use of force was reasonable, based
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on the circumstances as the Officers perceived them.
Ockunzzi reasonably believed Wagoner was subject to and trying to avoid the Duffey
warrant. Wagoner had been uncooperative during the entire stop. Under these circumstances, taking
Wagoner to the ground to handcuff her was an objectively reasonable way to complete her arrest
without further struggle. The record on summary judgment does not support Wagoner’s claim that
the Officers “bashed” her head into the ground, or otherwise used more force than was necessary to
put Wagoner in a prone position. The amount of force supported by the record before the court was
objectively reasonable, in light of the minimal amount of force used and Wagoner’s active resistance
to arrest. See Graham, 490 U.S. at 396. Accordingly, Ockunzzi and Gryphon are entitled to
summary judgment on Wagoner’s excessive-force claim.
C. Unreasonable Search.
Wagoner asserts a claim for an unreasonable search in violation of the Fourth Amendment.
This claim derives allegations that Ockunzzi searched Wagoner despite Wagoner requesting to be
searched by a female officer and that Ockunzzi searched Wagoner by “pulling her shirt up and her
pants down.” (Compl. ¶¶ 27, 65.) Wagoner also argues the search was unconstitutional because
Ockunzzi lacked probable cause to search her. (Id. ¶ 65.)
Ockunzzi seeks summary judgment on Wagoner’s claim because the record before the court
does not establish an unconstitutional search. The court agrees. Some of Wagoner’s allegations are
unsupported by the record. Ockunzzi states he did not pull Wagoner’s pants down. (Ockunzzi Decl.
¶ 22.) He also states he pulled Wagoner’s shirt “above her waist in order to observe her belt line for
potential weapons, but did not lift it further.” Id. Under the circumstances, the search-incident-toarrest doctrine justified Ockunzzi’s search of Wagoner.
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First, for the reasons stated previously, Ockunzzi had probable cause to arrest Wagoner.
Next, Ockunzzi’s lawful arrest of Wagoner allowed him to conduct a search incident to her arrest.
An officer’s authority to conduct a warrantless search “of the person of the arrestee” after a lawful
arrest is clearly established. United States v. Robinson, 414 U.S. 218, 224 (1973). A search incident
to arrest is justified by the officer’s need to ensure an arrestee does not possess weapons or articles
of escape. United States v. Hudson, 100F.3d 1409, 1419 (1996). Here, the record shows Ockunzzi
conducted a search of Wagoner’s person to determine whether she possessed weapons. (Ockunzzi
Decl. ¶ 22.) This search was well within the established exception to the warrant requirement of the
Fourth Amendment for searches of an arrestee’s person incident to a lawful arrest.
Wagoner also asserted a Fourth Amendment claim based on the cross-gender nature of
Ockunzzi’s search of Wagoner. The Ninth Circuit has yet to consider the issue of an arrestee’s right
to a same-gender pat-down search. The weight of authority suggests that an arrestee has no
constitutional right to have a pat-down search incident to arrest performed by an officer of the same
gender. See, e.g., Himes v. Enid Police Dep't, No. CIV-15-1084-R, 2016 WL 2354478, at *2 (W.D.
Okla. Mar. 30, 2016) (collecting cases), report and recommendation adopted in part, rejected in
part, 2016 WL 1737137 (May 2, 2016). A non-emergency strip searches of prisoners by oppositegender officers are unconstitutional. Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1142–47
(9th Cir. 2011). Pat-down searches of clothed male prisoners by female officers, however, are
constitutional. Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985).
In light of the weight of authority holding an arrestee has no per se right against cross-gender
pat-down searches and the holding in Grummett, the court concludes Ockunzzi’s pat-down search
of Wagoner did not violate the Fourth Amendment simply because of its cross-gender character. The
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record does not show any other objectionable or offensive contact occurred during the search.
Accordingly, the court grants Ockunzzi’s motion for summary judgment on Wagoner’s unreasonable
search claim.
D. Denial of Equal Protection.
Wagoner alleges the Officers violated the Equal Protection Clause of the Fourteenth
Amendment by targeting her for her race and sexual orientation. The Officers seek summary
judgment on this claim because the record does not support a finding of discriminatory intent. See
Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1037 (D. Ariz. 2009) (“[A] law enforcement
officer’s discriminatory motivations can give rise to a constitutional violation even where the
unequal treatment occurred during an otherwise lawful criminal detention.”). The court agrees.
Wagoner’s equal protection claim relies on factual assertions that the record does not support: the
Officers following the Honda from the Q Center, comments evidencing hostility towards lesbians,
and a lack of probable cause for the seatbelt violations. The only statement in the record evidencing
potential discriminatory motivation is Gryphon’s reference to Wagoner as a white male, when she
is instead a black woman. (Wagoner Tr. 11/4–12/25.) It is unnecessary to determine whether
Gryphon’s statement alone evidences discriminatory intent sufficient to survive summary judgment,
however. Gryphon did not initiate Wagoner’s arrest — Ockunzzi did. The record does not support
any discriminatory intent on Ockunzzi’s part. Accordingly, the court grants summary judgment for
the Officers on Wagoner’s equal-protection claim.
E. Punishment Without Due Process.
Wagoner’s punishment-without-due-process claim depends on the same factual allegation
as her assault claim — presence of blood and used toilet paper in the holding cell at North Precinct.
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As with Wagoner’s assault claim, the record does not support her factual allegation. The court grants
summary judgment to Ockunzzi and Gryphon on Wagoner’s punishment without due process claim.
F. Violation of First Amendment.
Wagoner’s First Amendment claim relies on allegations that the Officers’ followed her and
Lamar from the Q Center, and that the subsequent encounter had a potential chilling effect on her
First Amendment rights to peacefully assemble and associate at the Q Center. The record establishes
that the Officers did not follow Wagoner and Lamar from the Q Center. (Ockunzzi Decl. ¶ 5,
Gryphon Decl. ¶ 6; Dow Decl. ¶ 5 & Ex. A.) Accordingly, there is no connection between
Wagoner’s encounter with the Officers and Wagoner’s constitutionally protected activities at the Q
Center. The City is entitled to summary judgment on Wagoner’s First Amendment Claim.
Conclusion
The court DENIES Defendants’ motion to strike. (ECF No.77.) The court GRANTS
Defendants’ motion for summary judgment (ECF No. 52) as to all of Wagoner’s claims. Wagoner’s
lawsuit is dismissed with prejudice.
IT IS SO ORDERED.
DATED this 31st day of May, 2017.

/s John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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