Bogle v. Roberts et al
Opinion and Order - Defendants' motion for summary judgment is GRANTED. Signed on 11/15/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TRACEY E. BOGLE,
Case No. 3:15-cv-0013-SI
OPINION AND ORDER
CLACKAMAS COUNTY, et al.,
Tracey E. Bogle. 8652169, Santiam Correctional Institution, 4005 Aumsville Highway SE,
Salem, OR 97317. Plaintiff, pro se.
Stephen L. Madkour, County Counsel, Scott C. Ciecko, Assistant County Counsel, Office of
Clackamas County, Public Services Building, 2015 Kaen Road, Oregon City, OR 97045 Of
Attorneys for Defendants.
Michael H. Simon, District Judge.
Plaintiff Tracey E. Bogle (“Bogle”) brings this action against the County of Clackamas,
Oregon (“Clackamas County”); Craig Roberts, Sheriff of Clackamas County (“Sheriff Roberts”),
personally; and against Clackamas County Sheriff’s Deputies Brad O’Neil (“O’Neil”), Hilary
Robinson (“Robinson”), and Eric McGlothin (“McGlothin”), personally (collectively,
“Defendants”). Bogle asserts claims under 42 U.S.C. § 1983 (“§ 1983”), alleging that Defendants
subjected Bogle to excessive force in violation of the Fourth Amendment, made applicable to
PAGE 1 – OPINION AND ORDER
state and local governments by the Fourteenth Amendment. Before the Court is Defendants’
motion for summary judgment. For the reasons stated below, Defendants’ motion is granted.
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252, 255 (1986). “A party asserting that a fact cannot be true or is genuinely disputed
must support the assertion with admissible evidence.” Jakeman v. Berry, 2015 WL 2062344,
at *3 (D. Or. Apr. 6, 2015). “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
It is the responsibility of the non-moving party to “set forth specific facts showing that
there is a genuine issue for trial.” Keiffer v. Pernsteiner, 967 F.2d 527 (9th Cir. 1992). In order
for a party to avoid summary judgment, such facts must be supported by “citing to particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or
other materials.” Fed R. Civ. P. 56(c)(1)(A). Where an affidavit or declaration is relied on to
PAGE 2 – OPINION AND ORDER
oppose a summary judgment motion, it “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed R. Civ. P. 56(c)(4). Where the party opposing summary judgment is
proceeding pro se, the court “must consider as evidence . . . all of [that party’s] contentions
offered in motions and pleadings, where such contentions are based on personal knowledge and
set forth facts that would be admissible in evidence, and where [the party] attested under penalty
of perjury that the contents of the motions or pleadings are true and correct.” Jones v.
Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
On April 10, 2013, Bobby Ottis, a Marion County Probation Officer, called Clackamas
County dispatch asking for assistance in executing a felony arrest warrant for Tracey E. Bogle
for violating his probation. Mr. Ottis believed that Bogle was staying in Eagle Creek, Oregon, in
Mr. Ottis provided dispatch with the following additional information: Bogle was on
probation for felony burglary and misdemeanor assault; he was an “armed career criminal [and a]
sex offender”; he had been in possession of a gun before; and he had recently stated: “If I go to
prison, I’ll die.” ECF 131-1 at 1. Mr. Ottis also warned that Bogle was “a big boy,” probably
weighing about 285 pounds and standing about five feet, ten inches tall, with a 56-inch chest,
and that he had lifted weights while in prison. ECF 131-1 at 1; 132-2 at 4. Dispatch in turn
informed the responding deputies from the Clackamas County Sheriff’s Office (“CCSO”) of
these background facts. The deputies also received information about Bogle through the Law
Enforcement Data System (“LEDS”), which revealed his extensive criminal history, including
multiple violent offenses. See, e.g., ECF 129 at 2. After this point, some details of the encounter
PAGE 3 – OPINION AND ORDER
and arrest are disputed. Because this is a motion for summary judgment, the Court views the
facts in the light most favorable to and draws all reasonable inferences in favor of Bogle.
On the afternoon of April 10, 2013, Tracey Bogle was at the home of his girlfriend,
Debbie Ridley. At the time, he did not know that there was a warrant out for his arrest. Bogle
was working outside behind Ms. Ridley’s property in a steep, densely wooded area above a
creek. Ms. Ridley had just recently arrived home, and did not know whether Bogle was at the
property. Bogle’s car was in the driveway, but he occasionally left his car there when he was not
on the property. Robinson, McGlothin, and Sergeant Steve Strickland (collectively, the
“Responding Deputies”)1 arrived on the scene. Ms. Ridley agreed to let them search the property
The Responding Deputies searched the house and some of the surrounding area, but did
not locate Bogle. One deputy talked to some neighbors, who indicated that they had seen Bogle
outside only a few minutes earlier. The Responding Deputies then spotted a man’s sweatshirt on
the back deck, and suspected that Bogle had in fact been there. According to the Responding
Deputies, after another search of the property, they jointly decided to deploy a police canine to
search for Bogle. Robinson gave a warning, calling “Tracey” by name and stating that if he did
not surrender, a canine would be released and would bite him. Robinson then spotted Bogle in
the wooded area behind the house, moving away from the Responding Deputies.
While Bogle was doing landscaping work in the ravine, he heard his dogs at the house
barking in an “unusual” way and faintly heard a woman’s voice call his name. He did not
respond, and instead waited and listened. He then found himself being attacked by a police dog.
O’Neil and his canine arrived on the scene later, after the initial Responding Deputies
could not locate Bogle. The parties are not specific as to precisely when O’Neil arrived. Because
the exact details of which deputies were present for each specific fact are not material, O’Neil is
also included in the Court’s general references to the “Responding Deputies.”
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He tried to protect himself by grabbing the dog’s harness. The dog managed to bite him, tearing
the back-right pocket on Bogle’s jeans. This caused Bogle to fall about 30 feet down the steep
hill into the creek area below, injuring his leg.
At that point, Bogle saw McGlothin and a second police dog about twenty feet away from
him. McGlothin shouted “freeze or I’ll release another dog.” Bogle asked McGlothin whether
this was for Bogle’s probation violation, and stated that he was not a threat to the deputy. At that
point, McGlothin gave a command to his dog, which then bit Bogle in the forearm. Bogle
resisted, but the dog continued to bite him, eventually holding on to Bogle’s upper arm.
McGlothin ordered Bogle to get down, and Bogle got down on his knees but refused to go any
further, explaining that because they were in a creek, if he got down all the way he would be
under water. McGlothin then called his dog off of Bogle and placed Bogle in handcuffs. At some
point during this encounter, Robinson hit Bogle with her knee in his back, pushing him down
into the ground. Afterward, the deputies took the handcuffs off of Bogle so that he could make
the steep climb back up toward Ms. Ridley’s house. Emergency medical technicians examined
Bogle, and the deputies ultimately transported him first to a hospital and later to the Clackamas
Bogle sustained several injuries in the course of his arrest. He injured his leg in the fall
and still suffers from a “crippling limp.”2 Additionally, he suffered several scratches and cuts
from the fall and the canine bites on his arm and back, which resulted in swelling in his arm.3
Bogle states that he fractured or broke his “upper fibula” or “cranial fibula.” He
provides no medical evidence, however, to support this claim, and he, as a lay person, is not
qualified to diagnose this type of injury. The Court assumes for purposes of this motion that
Bogle suffered a leg injury, and that it caused him significant pain and discomfort.
Bogle claims that these cuts resulted in an infection, but cites no evidence to support
that claim. His medical record from the hospital visit reads: “Numerous scratches throughout on
his right upper extremity, he has several abrasions. No actual punctures. He does have some
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Bogle states that he still experiences numbness and dysfunction in his arm, in addition to having
scars from the wounds.
Bogle claims in his response to Defendants’ motion for summary judgment that he was
left to “bleed out his wounds for 24 hours with no bed.” He acknowledged in his deposition on
November 17, 2015, however, that medical staff at the hospital bandaged his wounds and that he
went to the hospital before being taken to county jail for the night.4 The Court notes that Bogle
has not asserted any Eighth Amendment violation and Bogle’s recitation of facts relating to the
treatment of his injuries at the hospital can only be considered if relevant to his § 1983 claim of
contusions where the dog appeared to have bitten him. It is more indentations and superficial
breaks in the skin. There is no actual discrete puncture or laceration. Likewise on the upper arm
he has several superficial abrasions that are linear and appear consistent with dog bites. There
was only 1 area that is actually a laceration. It is approximately 1 cm in length. It is at the end of
one of the abrasions.”
Bogle also suggests in his deposition testimony that deputies attempted to cover up his
injuries by preventing him from receiving stiches. Bogle has provided no admissible, competent,
evidence to support this claim. The record from Providence Willamette Falls Medical Center, to
which Bogle cites, indicates that stitches were “not warranted.” The Court has reviewed photos
of Bogle’s injuries, and they are not of the sort that would make it obvious to a lay person that
stitches were required—even if, as Bogle argues, nurses cleaned his wounds before the
photographs were taken. Therefore, Bogle is not competent to testify that his wounds needed
stitches that were not provided.
The record of Bogle’s hospital visit further indicates that he “was given Augmentin
coverage, Percocet for pain, prescribed 5 more days of Augmentin for antibiotic prophylaxis,
advised to return for new, worsening, or concerning symptoms and/or follow up with the primary
as doctor as needed.” Bogle states that this is a lie—that he was not provided with a prescription
for antibiotics or “other medical remedies” and that he “never received any such medical care
from them.” Bogle also stated in his sworn deposition, however, that a nurse “snuck” a painkiller
to him, which he took.
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A. Standards for a Claim of Excessive Force
A “claim of excessive force in the course of making a seizure of the person is properly
analyzed under the Fourth Amendment’s objective reasonableness standard.” Scott v. Harris, 550
U.S. 372, 381 (2007) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)) (quotation marks and
corrections omitted). To determine the reasonableness of a seizure, a court “must balance the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550
U.S. 372, 383 (2007) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).
The Ninth Circuit has outlined a three-step process for analyzing a claim of excessive
force under the Fourth Amendment. “The first step of the excessive force inquiry requires us to
assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating
the type and amount of force inflicted.” Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th
Cir. 2017) (quotation marks omitted). The second step is “to evaluate the government’s interest
in the use of force.” Id. at 1257. The government’s interest is measured by three main factors:
(1) the severity of the crime at issue, (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 by flight.
Id. (quotation marks omitted); see also Graham v. Connor, 490 U.S. 386, 396 (1989). These
factors are “not exclusive,” however, and courts should “examine the totality of the
circumstances, considering other factors when appropriate.” Lowry, 858 F.3d at 1257. Such other
factors include, for example, “whether proper warnings were given and the availability of less
intrusive alternatives to the force employed.” Id. at 1259 (quotation marks omitted). The third
and final step, as articulated by the Ninth Circuit, requires courts to “balance the gravity of the
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intrusion on [the individual’s] Fourth Amendment rights against the [government’s] need for that
intrusion.” Id. at 1260.
The objective reasonableness test is necessarily fact-dependent. The relevant factors
“must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight,” because “police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. As the Supreme
Court has recognized, “the right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it,” and thus “[n]ot
every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,
violates the Fourth Amendment.” Id. at 396 (citations and quotation marks omitted).
The Ninth Circuit has “held on many occasions that summary judgment or judgment as a
matter of law in excessive force cases should be granted sparingly,” because “the excessive force
inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw
inferences therefrom.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). If, however,
there are “no genuine issues of material fact and ‘the relevant set of facts’ has been determined,
the reasonableness of the use of force is ‘a pure question of law.’” Lowry, 858 F.3d at 1256
(quoting Scott, 550 U.S. at 381 n.8).
B. Alleged Force Used Against Bogle
Bogle claims he was subjected to three different uses of force during his arrest: first, the
bite on his backside which caused him to fall; second, the bites on his arm when McGlothin
commanded his dog to bite Bogle; and third, Robinson’s force against Bogle’s back. The Court
analyzes each separately, although the Court first discusses in greater detail the facts and law
relating to the use of canines.
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1. Bogle’s Encounters with Police Dogs
There is factual dispute regarding how many police dogs Bogle came into contact with
during his arrest, and who was responsible for those dogs. Defendants maintain that Bogle had
only one encounter with a police dog, McGlothin’s. O’Neil also deployed his canine (i.e., took
his canine out of his vehicle and onto the property with him),5 but states that he maintained
control of the canine at all times and that neither he nor his canine came into contact with Bogle.6
Bogle, on the other hand, claims that he had two encounters with police dogs, which he believes
were two different dogs. One encounter was before Bogle fell and one was after he fell. The
second police dog was standing near and commanded by McGlothin. While Bogle does not have
personal knowledge of which canine belonged to which deputy, Bogle asserts that he saw a dog
with McGlothin immediately after Bogle’s fall, which was caused by a canine. Bogle notes that a
dog could not have made it from where Bogle originally was located, before he fell, to where
McGlothin and his dog were located after Bogle’s fall in the time it took Bogle to fall to the
The Court assumes for purposes of the pending motion that Bogle had two contacts with
one or more police canines. It is irrelevant whose canine was involved in the first contact,
because Defendants O’Neil, McGlothin, and Robinson jointly decided to use police canines to
search for Bogle. Thus, they are all jointly responsible for the first canine bite.7
See ECF 198-1 at 80 (“Deploying and releasing on a person are separate. Whenever our
dogs get out of the car to go and do work, whether it be a search for a person or just be on
standby in case they’re needed, that’s a deployment.”)
Although Robinson is also a canine deputy, she did not bring her canine out of the
vehicle—a fact that Bogle does not dispute.
In his response to Defendants’ motion for summary judgment, Bogle appears to be
arguing a claim against O’Neil for supervisory liability for the canine bites sustained by Bogle.
No such claim, however, is alleged in Bogle’s complaint. Bogle’s complaint alleges supervisory
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a. First Canine Bite
With each application of force, the first step is to evaluate the type and amount of force
inflicted on the plaintiff. Lowry, 858 F.3d at 1256-57. Bogle asserts that the use of a police
canine to locate and hold a suspect constitutes “lethal force.” Ninth Circuit precedent, however
“establishes that characterizing the quantum of force used with regard to the use of a police dog
depends on the specific factual circumstances.” Id. Therefore, the Court must analyze each use of
the canine, or bite, to characterize its level of force.
The Ninth Circuit recently summarized some of its precedent on the use of police
In Smith v. City of Hemet, 394 F.3d 689, 701-02 (9th Cir. 2005) (en
banc), we held that the use of a police dog constituted excessive
force where the officers sicced the dog on the plaintiff three times,
including once after he had already been pinned down, and then
pepper sprayed his open wounds. Similarly, in Chew [v. Gates], we
concluded that “the force used to arrest [the plaintiff] was severe”
because the dog bit the plaintiff three times, dragged him between
four and ten feet, and “nearly severed” his arm. 27 F.3d at 1441.
On the other hand, in Miller v. Clark County, we held that the use
of force, although considerable and serious, was nonetheless
reasonable and did not rise to the level of “deadly force,” even
though the dog apprehended a fleeing suspect with a bite that
lasted between forty-five and sixty seconds, “shredded” the
plaintiff’s muscles, and reached the bone. 340 F.3d at 961-66.
liability for the canine unit against Sergeant Paul Coleman, but that claim was dismissed. See
ECF 115. Bogle may not add a new claim in response to Defendants’ summary judgment
motion. See Wasco Prods. Inc. v. Southwall Tech., Inc., 435 F.3d 989, 992 (9th Cir. 2006)
(“‘[S]ummary judgment is not a procedural second chance to flesh out inadequate pleadings.’”)
(quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)). Even if he could add
such a claim, Bogle merely asserts, in a conclusory manner, in various portions of his response
that O’Neil had supervisory authority over the canine deputies. Bogle has no basis for personal
knowledge of this fact, however, and provides no evidence to support it. He cites O’Neil’s
deposition from August 29, 2017. In that deposition, O’Neil was asked whether he had any
supervisory duties at the time of Bogle’s arrest, and O’Neil responded that he did not (at the time
of his deposition, however, O’Neil was a supervisor). According to O’Neil, at the time of
Bogle’s arrest, Sergeant Coleman was the supervisor. As noted, Seargeant Coleman is no longer
a defendant in this case.
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Lowry, 858 F.3d at 1256-57 (first alteration added, second alteration in original). Considering
both the “risk of harm posed by [the] particular use of force, and the actual harm caused,” the
Ninth Circuit in Lowry found that the district court had properly characterized the use of a canine
as “moderate” where the officer followed closely behind the canine and called it off of the
plaintiff “very quickly after the initial contact” upon finding that the plaintiff was not a threat
(and in fact was asleep). Id. at 1257.
Here, considering the risk of harm and the actual harm caused in having a police dog
search the woods for Bogle upon the Responding Deputies’ arrival and inability to locate Bogle,
the Court finds the use of force to be moderate. The risk of harm to Bogle was that the dog
would bite and hold Bogle until a deputy arrived. Clackamas County canines are trained to bite
and hold persons until deputies arrive, and to inflict the least amount of physical injury possible
to the person. The risk of harm did not foreseeably involve Bogle himself falling and injuring his
leg, though this was the actual harm caused.8 The force used in this encounter was less severe
than the force deployed in Smith and Chew. The Court finds that, under the circumstances, the
force used in this encounter with Bogle was moderate.
The next step is to determine the government’s interest in securing Bogle’s arrest.
Applying the three-factor test from Graham v. Connor, the first factor to be considered is the
severity of the crime for which Bogle was sought. Bogle was wanted for violating his probation,
based on his underlying crimes of felony burglary and misdemeanor assault. Bogle argues that
Bogle argues that the deputies acted contrary to Clackamas County’s canine use of force
policy, which states that “[c]anines shall always be on lead when on an elevated area from which
a fall could be hazardous . . . .” ECF 198-2 at 175. He suggests that his fall was the sort of hazard
sought to be prevented by this policy. Multiple deputies stated in their depositions, however, that
this aspect of the policy was intended to protect the canines, not humans, from falls. The
Responding Deputies determined that the terrain did not pose a hazardous fall condition to the
dogs. Moreover, the Responding Deputies determined that keeping the dogs on leash under the
circumstances was not feasible.
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his original parole violation in and of itself—drinking alcohol—was minor, and therefore that the
officers’ use of force to arrest him was unreasonable. Although Bogle is correct that drinking
alcohol in violation of parole conditions is itself a minor transgression, Bogle was actually being
sought because Mr. Ottis reported that he was “wanted,” that there was a “felony warrant out for
him,” and that he was “not living where he was supposed to be living” while on probation.
ECF 132-2 at 2-4. There is some support for Bogle’s argument that this, while resulting in a
“felony warrant,” as the deputies point out, does not qualify as a serious offense. See Jones v.
Pierce County, 2014 WL 4409608, at *3 (W.D. Wash. Sept. 8, 2014) (“Jones was wanted for
failing to report to probation. He was allowed to serve his sentence for the underlying offense in
the community presumably because he was not a threat to the public . . . a reasonable jury could
conclude that the severity of the crime and situation does not support [the officer’s] use of
force.”); see also Tennessee v. Garner, 471 U.S. 1, 14 (1985) (“[W]hile in earlier times the gulf
between felonies and the minor offences was broad and deep, today the distinction is minor and
often arbitrary.” (citation and quotation marks omitted)). The perspective of the deputies on the
scene, however, was based on what they learned from Mr. Ottis: that Bogle had “taken off” from
Mr. Ottis, was “possibly hiding” at Ms. Ridley’s house, was an armed career criminal, felt he
would “die” if he went back to prison, had a history of violent offenses, and had at one time been
in possession of a gun. Thus, although this factor does not weigh heavily in either direction, it
tips slightly in favor of Defendants.
The second factor, whether the suspect posed a threat to the safety of the officers, also
weighs in favor of the Defendants in this case. Before deciding to release a canine, the
Responding Deputies were aware, based on Mr. Ottis’ warnings, that Bogle had been in
possession of a gun in the past, that he was an “armed career criminal” and a sex offender, and
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that he had a history of violent criminal activities. Mr. Ottis also warned the deputies that Bogle
was a large, strong, person, who was determined to avoid going back to prison.9 No responding
deputy had the opportunity to search Bogle for weapons. Bogle suggests that the Responding
Deputies knew he was not armed or dangerous because his girlfriend, Ms. Ridley, told them as
much. But from the perspective of an officer on the scene, it was reasonable to choose to rely on
the statement of Mr. Ottis, a fellow law enforcement officer, and to approach the situation with
caution. Additionally, the Responding Deputies reasonably believed that Bogle was familiar with
the area because he had been staying there with his girlfriend, while they were not.10 This led the
Responding Deputies to believe that Bogle had a strategic advantage over them, and to fear that
he could ambush them, set traps, or hide weapons in the densely wooded, uneven terrain. Thus,
the second factor weighs in favor of Defendants.
The final of the Graham factors, whether the suspect is attempting to resist or evade
arrest, also weighs in favor of the Responding Deputies. Bogle asserts that he was not trying to
hide from the deputies—that he was simply working outside behind Ms. Ridley’s house, did not
know that he was being sought, and did not hear any canine warning. But once again, the
Bogle devotes significant time to arguing that Mr. Ottis’ representations—upon which
the Responding Deputies relied in deciding how to approach the scene—were false or
exaggerated. For purposes of evaluating the Responding Deputies’ decisions, however, the
important question is not whether those statements were correct, but rather what information the
deputies reasonably believed at the time, and whether the actions they took in reliance on those
statements were themselves reasonable.
Bogle argues that because the Responding Deputies worked in the county
encompassing Ms. Ridley’s property, which was surrounded by other rural properties, they were
in fact familiar with the area. This conclusory allegation alone, however, does not create a
genuine dispute of fact as to whether the Responding Deputies were personally familiar with the
terrain behind Ms. Ridley’s house. Bogle also argues that it was not reasonable for the
Responding Deputies to think that Bogle was familiar with the area, because he did not live
there. Mr. Ottis, however, had stated that Bogle was “staying” there, which is enough to imply a
familiarity. Bogle himself states numerous times that he worked in the area behind Ms. Ridley’s
home “every day.”
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important question is not Bogle’s subjective intent. Rather, the Court looks at the perspective of
a reasonable officer on the scene. The Responding Deputies had been on the scene for some
time, speaking with Ms. Ridley and examining the surrounding area. Bogle had not made himself
known, even though Ms. Ridley’s neighbors informed the Responding Deputies that they had
just seen Bogle a few minutes before the Responding Deputies arrived. Bogle does not dispute
that he did not communicate with the Responding Deputies and that he was located in an area
where it would be difficult to find someone. Additionally, Mr. Ottis informed the Responding
Deputies that Bogle had failed to report to Mr. Ottis as required, and that Bogle had said “If I go
to prison, I’ll die.” Furthermore, Robinson spotted Bogle in the woods, moving away from the
Responding Deputies, although Bogle claims it would have been impossible for Robinson to see
into the area where Bogle was. Regardless of whether Robinson could see Bogle moving away,
there was sufficient information for the Responding Deputies reasonably to conclude that Bogle
was at least hiding, if not actively evading arrest.
Courts may also consider the availability of other means of effectuating an arrest,
Smith, 394 F.3d at 703, and this element is particularly relevant in the case at hand. The
Responding Deputies’ decision to use a canine to search for Bogle was made largely because of
the terrain in which they were operating. Bogle does not dispute the characterization of the
area—both sides agree that it was rural and densely wooded, with thick underbrush and steep
ravines, making it difficult to navigate. The Responding Deputies decided that the safest and
most effective way to locate Bogle would be to use canines, which are better able to maneuver
steep terrain with dense vegetation and have a sense of smell that allows them to locate someone
who is not visible.
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Another relevant factor to the excessive force analysis is whether there was any warning
given. According to the Responding Deputies, Robinson gave a warning to Bogle when she
spotted him in the ravine below her. Bogle insists that neither Robinson, nor anyone else, gave a
warning that Bogle might be bitten if he did not surrender, at least before the first canine bite he
sustained. He also insists, however, that he was too far away to have heard such a warning—
while also acknowledging that he faintly heard a woman’s voice say his name, “Tracey.” Ms.
Ridley stated generally in her declaration dated June 4, 2017, that she was near the Responding
Deputies “most of the time” and she did not hear them give a warning to Bogle. ECF 198-3
at 36, ¶ 11. She also indicated that she believed she would have heard an announcement, had one
been given. Id. ¶ 12. But Ms. Ridley specifically testified in detail at her deposition of
December 9, 2015, that she was in her house for much of the time the Responding Deputies were
outside searching for Bogle; that she closed her doors to keep her dogs inside; that her windows
were also closed; that she did not “even know where [the Responding Deputies] went”; that she
thinks they may have damaged a fence (which she did not discover until the next day); that she
“could not hear what they were saying”; that she “didn’t see them in the back of the property
looking . . . didn’t see any of that”; that they could have been talking outside; and that she spent
approximately five minutes on the telephone talking to a friend, “hysterical” and “crying.”
ECF 198-1 at 291-303 (Depo Tr. 34-46). Therefore, Bogle has not put forward evidence that
genuinely disputes Defendants’ evidence that Robinson gave a canine warning.
Ninth Circuit case law supports the conclusion that the Clackamas County deputies used
a reasonable amount of force to effectuate Bogle’s arrest. In Smith v. City of Hemet, a woman
called the police and said that her husband was hitting or otherwise becoming physical with her.
She told police that he did not have a weapon. 394 F.3d at 693. When officers arrived on scene
PAGE 15 – OPINION AND ORDER
Smith did not obey officers’ commands to take his hands out of his pockets. At some point,
officers told him that a canine might be sent to subdue him. Then, officers sprayed Smith with
pepper spray, and Smith attempted to go back inside his home. Officers then grabbed Smith and
threw him down on the porch. At that point, an officer ordered a canine to attack him. Officers
were still unable to secure both of his arms, and officers ordered the canine to bite Smith again.
The officers then ordered the dog to release Smith, and proceeded to drag him off of his porch.
At that point, Smith was shielding one of his arms from the dog, and the officers ordered the dog
to bite Smith a third time. During this encounter, the officers also used pepper spray on Smith as
many as four times; two of these instances were after the canine had held onto him, and one was
after officers had already pinned him to the ground. Id.at 693-94.
The Ninth Circuit found that Smith’s claim for excessive force should survive summary
judgment. The court explained that the record revealed no “basis for believing that Smith was
armed or that he posed an immediate threat to anyone’s safety”; that Smith “was in plain view of
the officers”; and that “[a]lthough he initially refused to comply with [the officer’s] instruction to
remove his hands from his pajama pockets, he ultimately did so before the officers used any
physical force to restrain him.” Id at 702. Additionally, the defendants had “concede[d] in their
depositions that Smith did not pose a significant threat of death or serious injury.” Id. When
officers arrived, Smith was standing on his porch, separated from his wife, with no weapons in
his possession. Although Smith ignored officers’ requests to reveal his hands, he “did not attempt
to run from the officers,” and “did not attack the officers or their dog.” Id. Finally, Smith had
offered in evidence an expert opinion concluding that officers could and should have used an
alternate means of restraining Smith.
PAGE 16 – OPINION AND ORDER
The Ninth Circuit found to the contrary in Miller v. Clark County. 340 F.3d 959 (9th
Cir. 2003). Miller refused to stop his car when a deputy attempted to pull him over, and the
deputy called for backup while pursuing a passenger who had fled from the car. Miller then
parked at his parents’ home. Deputies learned that Miller was wanted for a felony charge of
“attempting to flee from police by driving a car with a wanton or willful disregard for the lives of
others.” Id. at 960. Deputies were told that the residents in the home were not “law enforcement
friendly,” and that a mentally ill person lived there. Id. One deputy reporting to the scene learned
that Miller had run away from the house a few minutes earlier, and saw a knife on the seat of the
car that Miller had left behind. Miller was on a large, rural property, and deputies pursuing him
ultimately ended up at a location with “dense, dark, wooded terrain.” Id. at 961. After giving a
canine warning, the deputies released the dog off-leash, and the dog located and bit Miller. Upon
hearing Miller’s scream, the deputies tracked him down, called the dog off of him, and arrested
him. Miller suffered severe injuries from the bite and had to undergo surgery and spend several
days in the hospital recovering. The court noted that the canine bite lasted for an “unusually long
time period,” as it took some time for deputies to make their way to Miller in the woods. Id.
at 964. Miller filed a § 1983 action alleging excessive force.
In reviewing the case, the Ninth Circuit first found that the use of the canine did not
constitute deadly force because the use of the police canine in this case was not “reasonably
likely to kill.” Id. at 962. The court then affirmed the district court’s finding, after a bench trial,
that the use of the canine did not constitute excessive force. In affirming this decision, the court
first noted that Miller was wanted for a felony crime. Second, the court explained, the deputy on
scene had reason to fear for her safety, because Miller had defied orders to stop, he was wanted
for a crime of fleeing from police in a dangerous manner, and he had possessed a knife only
PAGE 17 – OPINION AND ORDER
moments before, a fact which the court noted “suggests . . . a propensity to carry a weapon.” Id.
at 965. More importantly, the court added, the deputy knew that Miller had a “strategic
advantage over the deputies,” because he was hiding in the woods on treacherous terrain with
which he—but not the deputy—was familiar. Finally, the court noted, Miller was “still evading
arrest by flight,” even though he had paused to hide in the woods. Id. at 966.
Based on all of these factors, the Ninth Circuit concluded that the deputy’s decision to
command the dog to bite and hold Miller “was reasonably necessary under the circumstances.”
Id. As the court explained, “a trained police dog could be trusted to neutralize the many strategic
advantages that Miller had obtained by crouching in the darkness in a remote and unbounded
landscape familiar only to Miller and treacherous to others who might enter.” Id. at 967. The
deputy “knew of the keen nose, acute vision, stealthy speed, natural courage, and lupine
strength” of the canine. Id. And, the deputy knew that the canine “was trained to find, seize, and
hold Miller, careful not to hurt Miller more than necessary.” Id.
The facts of this case are similar to Miller and distinguishable from Smith. Accordingly,
based on the totality of the circumstances, it was reasonable for the Responding Deputies to
deploy a canine to locate Bogle in the steep, wooded area where Bogle was located. Thus, the
first bite that Bogle sustained did not constitute an unreasonable use of force in effecting an
b. Second Canine Bite
The second canine bite presents a different question. Again, the Court views the facts of
this encounter in the light most favorable to Bogle. As Bogle describes the encounter, after
falling down into the low creek area, he found himself standing about twenty feet away from
McGlothin. McGlothin pulled his weapon and yelled something to the effect of: “freeze or I’ll
release another dog.” Bogle asked McGlothin whether the deputy was after Bogle because of his
PAGE 18 – OPINION AND ORDER
parole violation. McGlothin immediately gave a command to his canine, which bit Bogle in the
arm. Bogle tried to resist the canine, while telling McGlothin that Bogle was not a threat to the
deputy. McGlothin told Bogle to get down, and Bogle got down onto his knees. As the dog
continued to hold onto Bogle’s arm, McGlothin continued to order Bogle to get down further,
but Bogle said that he could not because if he got down he would be under water in the creek.
McGlothin then called the canine off of Bogle, and placed Bogle in handcuffs.
It is not entirely clear how long this second canine attack lasted. Bogle characterizes it as
a matter of a few minutes. The canine first bit Bogle’s forearm, and then, as Bogle resisted,
moved its way further up his body, biting his back and eventually holding onto his upper arm.
Bogle had several lacerations in his arm and back as a result of the bite. None was treated with
stitches. In determining the reasonableness of this second canine attack, the Court again
considers the totality of the circumstances, starting with the three factors from Graham v.
Connor. As discussed above, the first factor, the crime for which Bogle was sought, tilts slightly
in favor of the Defendants.
The second factor, the danger posed to the officer, still weighs in favor of McGlothin, but
only slightly. Bogle does not dispute that before the canine bit him, he had not put his arms up
and he had not gotten down on the ground. Even after the dog bit him, he did not fully comply
with McGlothin’s orders to get all the way down, although Bogle did explain his reasoning to the
deputy. At the point that McGlothin commanded the dog, Bogle still had not been searched for
weapons, McGlothin’s fellow deputies had not yet caught up with the two of them, and Bogle
still had the advantage of familiarity with the area and the possibility of using hidden weapons.
But, Bogle was communicating with McGlothin at this point, and asking McGlothin what he was
there for—which is not threatening behavior. The risk to McGlothin in this situation was less
PAGE 19 – OPINION AND ORDER
than that to the officers before locating Bogle, as they previously had no idea what they might
The third factor, whether the suspect is resisting or evading arrest, weighs against
McGlothin with respect to this canine attack. Bogle claims that, after he and McGlothin saw each
other, Bogle did not run or hide from McGlothin, but rather asked why he was there. Although
the Responding Deputies had been searching for quite a while, at the point that McGlothin
commanded his canine to bite Bogle, Bogle was not evading the deputy.
The additional factors of alternate means and warnings are again relevant. With respect to
this second bite, Bogle does not dispute that there was a clear warning given—McGlothin
shouted something to the effect of “freeze or I’ll release another dog.” The alternative means
analysis as to the second bite differs from that of the first bite. From the Responding Deputies’
location behind Ms. Ridley’s property, they faced an unknown terrain, a steep drop-off, and
uncertainty with respect to Bogle’s whereabouts. The Responding Deputies knew that canines
would be better able to maneuver and would be able to find Bogle even if he was concealed.
They determined that lesser force, such as pepper spray, a taser, or hand-to-hand combat, would
be ineffective if Bogle took cover. Additionally, the canines were trained to bite and hold a
suspect just long enough for an officer to find and locate the suspect. But here, McGlothin had
already located Bogle. Other officers were not too far behind him, as they arrived around the
time that Bogle was being put into handcuffs. Bogle was not actively running away from
McGlothin, and McGlothin could potentially have tried other available means to secure Bogle’s
Based on this analysis, the Court concludes that a reasonable jury could find that
McGlothin used excessive force when he commanded his canine to bite Bogle, when Bogle and
PAGE 20 – OPINION AND ORDER
McGlothin were standing about twenty feet away from each other, were communicating, and
when Bogle was not explicitly threatening the deputy or running away from him. Although
Defendants dispute the facts of this encounter as recited by Bogle, this merely creates an issue of
fact for a jury to determine.
2. Bogle’s Encounter with Robinson
Bogle claims that Robinson used unreasonable force by kicking or pushing him in the
back during his arrest. It is undisputed that Robinson did exert some force on Bogle’s back, but
the timing and severity of that force is both disputed by the parties and presented in a
contradictory manner by Bogle himself.11
There are two contradictions in Bogle’s representations of his encounter with Robinson
that are relevant to the Court’s analysis of this claim. First, Bogle’s sworn deposition testimony
was that Robinson did nothing more than kick Bogle in the back. Bogle’s response pleading
asserts that Robinson also tried to force Bogle’s head under water.12 Second, his deposition
testimony is that this encounter with Robinson took place before Bogle was handcuffed, while
his response pleading asserts that she kicked him only after he was handcuffed. The Court must
determine which version of Bogle’s story to treat as true for purposes of this motion.
In his complaint, Bogle alleges that Robinson “used force on his back and neck to push
him down with her knee on his lower back.” Bogle testified in his November 17, 2015,
deposition that Robinson “pushed [him] down under the water with her knee.” When asked at
Robinson and the other Responding Deputies on the scene maintain that it was
Robinson who placed Bogle in handcuffs, and that she used her knee on his back in order to
restrain him while placing him in handcuffs. Bogle, on the other hand, asserts that McGlothin
placed Bogle into handcuffs, although Bogle agrees that it was Robinson who exerted force upon
Because Bogle submits his response pleading under oath, the Court interprets it as a
declaration and accepts the representations within it, if otherwise admissible, as evidence.
PAGE 21 – OPINION AND ORDER
deposition whether, at any point, any of the Responding Deputies pushed his head under the
water, Bogle responded that they had not, though Bogle said that he “was keeping [his] head up.”
In his December 8, 2015, deposition, Bogle was asked specifically about his interaction with
Robinson. After stating that Robinson kicked him in the back, Bogle was asked whether
Robinson used any other physical force against Bogle, and he stated that Robinson did not.
Additionally, in his November 17, 2015, deposition, Bogle was asked “what happened after the
dog released,” and he responded “I got kicked in the back.” He was then asked: “After they
pushed you down into the creek, what happened?” Bogle responded: “They put cuffs on me.”
In his response to the Defendants’ motion for summary judgment, however, Bogle tells a
different story. At one point he explains that, after the dog was called off of him, McGlothin
placed cuffs on him, and “at this time Deputy Hillary [sic] Robinson slammed her knee into the
plaintiff’s back and proceeded to kick and assault him with her knee into the creek.” Later in his
response, Bogle states that only after he was “already faced down and cuffed on his knees” and
submitting to the officers’ requests did “Robinson attempt to push the plaintiffs [sic] head
under the water, but the plaintiff kept his head up.”
In this circuit, the “general rule . . . is that a party cannot create an issue of fact by an
affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080
(9th Cir. 2012) (quoting Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009)).
This rule “should be applied with caution, because it is in tension with the principle that the court
is not to make credibility determinations when granting or denying summary judgment.” Id
(quotation marks omitted). In order for this rule to apply, a “district court must make a factual
determination that the contradiction is a sham, and the inconsistency between a party’s
PAGE 22 – OPINION AND ORDER
deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking
the affidavit.” Id (quotation marks omitted); see also Van Asdale, 577 F.3d 989 at 998-99.
While being deposed, Bogle was asked quite specifically about his interaction with
Robinson. Bogle clearly stated that Robinson used her knee to push Bogle down before he was
handcuffed. Bogle also admitted that, while he was on his knees, McGlothin continued to tell
Bogle to get down further, and Bogle refused to do so. Bogle indicated that this was because he
would be under water if he got down any further. He ultimately did get all the way down,
however, and stated in his deposition that his head was not under the water.
Bogle’s sworn statement submitted with his summary judgment response is that
Robinson pushed him down after he was already handcuffed, and that she also attempted to force
his head down into the water. This statement clearly and unambiguously contradicts Bogle’s
prior sworn testimony. The Court finds this statement to be a sham and disregards it for purposes
of considering the pending motion. The Court proceeds by assuming that Robinson kicked or
kneed Bogle in the back before he was placed in handcuffs, and that Robinson did not then push
Bogle’s head down into the water after Bogle was handcuffed.
Based on those facts, the force that Robinson exerted upon Bogle was not excessive.
Robinson used her knee or leg in Bogle’s back in order to restrain him while he was admittedly
refusing to obey McGlothin’s orders. Based on all of the factors described above, it was
reasonable for the Responding Deputies to fear for their safety and to fear that Bogle would
continue to evade arrest. As the Supreme Court has stated, “[n]ot every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.” Graham, 490 U.S. at 396 (citation and quotation marks omitted). It was
PAGE 23 – OPINION AND ORDER
reasonable under these circumstances for Robinson to use this level of force against Bogle in
order to secure his arrest.
Bogle presents a genuine issue of fact only with regard to whether the force used against
him during the second dog bite was excessive. Accordingly, Defendants’ motion for summary
judgment is granted with respect to Plaintiff’s claims against O’Neil and Robinson.
C. Personal Liability of Sheriff Craig Roberts
Plaintiff seeks to hold Craig Roberts, the sheriff of Clackamas County, personally liable
under § 1983. Sheriff Roberts’ liability depends upon Bogle’s constitutional rights having been
violated by one of the Responding Deputies. See Watkins v. City of Oakland, 145 F.3d 1087,
1093 (9th Cir. 1998) (“As Officer Chew’s superior, Chief Samuels can be held liable in his
individual capacity if he participated in the deprivation of Watkins’ constitutional rights. Chief
Samuels’ liability depends upon a jury finding Officer Chew used excessive force against
Watkins.” (citation omitted)). Because the Court has only found a material dispute of fact
relating to Bogle’s second dog bite, Sheriff Roberts can only be personally liable with respect to
McGlothin’s actions. If McGlothin used excessive force, then Sheriff Roberts’ “liability hinges
on whether he set in motion a series of acts by others, or knowingly refused to terminate a series
of acts by others, which he knew or reasonably should have known, would cause others to inflict
the constitutional injury.” Id. (quotation marks omitted). He “can be held liable in his individual
capacity for his own culpable action or inaction in the training, supervision, or control of his
subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a
reckless or callous indifference to the rights of others.” Blankenhorn v. City of Orange, 485 F.3d
463, 485 (9th Cir. 2007) (quotation marks and correction omitted).
PAGE 24 – OPINION AND ORDER
In Watkins, the plaintiff sued under § 1983 for damages he sustained from a police canine
during his arrest, and sought to hold the supervising police chief liable in addition to the officer
on the scene. Watkins presented evidence that the chief signed off on an internal affairs report
dismissing Watkins’ complaint “despite evidence of [the officer’s] use of excessive force . . . and
. . . involvement in other police dog bite incidents, and apparently without ascertaining whether
the circumstances of those cases required some ameliorative action to avoid or reduce serious
injuries to individuals from dogs biting them.” Watkins, 145 F.3d at 1093. The Ninth Circuit
noted that the chief could be held liable for ratifying the officer’s use of force and affirmed the
district court’s denial of summary judgment.
Similarly, in Blankenhorn, there was evidence that the chief of police “approve[d the
officer’s] personnel evaluations despite repeated and serious complaints against him for use of
excessive force,” as well as testimony “regarding the ineffectiveness of [the officer’s] discipline
for those complaints.” 485 F.3d at 486. In that case, the Ninth Circuit found that the evidence
“could lead a rational factfinder to conclude that [the chief] knowingly condoned and ratified
actions by [the officer] that he reasonably should have known would cause constitutional
injuries” like those alleged by the plaintiff. Id.
Although McGlothin was involved in several of the use of force incidents that Bogle has
presented as exhibits, Bogle cites to no evidence in the record showing that Sheriff Roberts
signed off on any reports dismissing use of force complaints against McGlothin, personnel
evaluations supporting McGlothin despite numerous force complaints, or other similar evidence
suggesting a history of unconstitutional excessive force by McGlothin that Sheriff Roberts
ignored or ratified. Bogle suggests several times, in a conclusory manner, that Sheriff Roberts
approved or ratified the use of force against Bogle. He has no personal knowledge of this fact,
PAGE 25 – OPINION AND ORDER
however, and points to no evidence that corroborates this claim. In fact, Sheriff Roberts stated in
his declaration that he became aware of the use of force against Bogle only after Bogle initiated
this lawsuit. ECF 130 at 1.
Bogle also generally asserts that Sheriff Roberts is responsible for instructing officers to
use an unconstitutional policy or practice regarding canine use of force. As discussed below, the
Court finds insufficient evidence to support Bogle’s argument that the CCSO policy is
unconstitutional on its face or by custom, and therefore this theory of liability against Sheriff
Roberts also fails. Accordingly, Defendants’ motion for summary judgment is granted with
respect to Plaintiff’s claims against Sheriff Roberts.
D. Qualified Immunity
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). “Whether qualified immunity can be invoked turns on the
‘objective legal reasonableness’ of the official’s acts. And reasonableness of official action, in
turn, must be ‘assessed in light of the legal rules that were clearly established at the time [the
action] was taken.’” Ziglar v. Abbasi, 137 S.Ct. 1843, 1866 (2017) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982); then quoting Anderson v. Creighton, 483 U.S. 635, 639
(1987) (alteration in original) (citation omitted)). “The privilege is an immunity from suit rather
than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to
trial.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (emphasis in original) (quotation marks
omitted). For this reason, the Supreme Court has “stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991)
PAGE 26 – OPINION AND ORDER
In Saucier, the Supreme Court outlined a two-step process for determining the
applicability of the qualified immunity doctrine. 533 U.S. at 200. The first step is to determine
“whether a constitutional right would have been violated on the facts alleged.” Id. The second
step is to determine “whether the right was clearly established.” Id. The constitutional issue,
however, need not be addressed first in every case. Pearson, 555 U.S. at 227. When considering
whether qualified immunity applies, the court must resolve all factual disputes in favor of the
party asserting the injury. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013).
1. Constitutional Right
As previously discussed, Bogle has demonstrated that a genuine issue of material fact
exists regarding whether the second dog bite constituted excessive force. Thus, a reasonable jury
could conclude that McGlothin violated Bogle’s Fourth Amendment rights.
2. Clearly Established
To determine whether a government official’s conduct violates clearly established law, “a
court must ask whether it would have been clear to a reasonable officer that the alleged conduct
‘was unlawful in the situation he confronted.’” Ziglar, 137 S. Ct. at 1867 (quoting Saucier, 533
U.S. at 202). To be clearly established, “[i]t is not necessary . . . that the very action in question
has previously been held unlawful. That is, an officer might lose qualified immunity even if there
is no reported case directly on point. But in the light of pre-existing law, the unlawfulness of the
officer’s conduct must be apparent.” Id. at 1866-67 (citations and quotation marks omitted).
Courts should not “define clearly established law at a high level of generality.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015). Rather, a court must look at “whether the violative nature of
particular conduct is clearly established”—an analysis that is “undertaken in light of the specific
context of the case.” Id. (emphasis in original) (citations omitted). This high level of specificity
is in fact “especially important in the Fourth Amendment context, where . . . it is sometimes
PAGE 27 – OPINION AND ORDER
difficult for an officer to determine how the relevant legal doctrine, here excessive force, will
apply to the factual situation the officer confronts.” Id (citation, quotation marks, and correction
Finally, even if a right was violated, and that right was clearly established at the time,
where an officer’s mistake as to the law’s requirements was reasonable, “the officer is entitled to
the immunity defense.” Blankenhorn, 485 F.3d at 471; see also Saucier, 533 U.S. at 202. In
effect, “qualified immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Ziglar, 137 S. Ct. at 1867 (quoting Malley v. Briggs, 475 U.S. 335, 341
As the Ninth Circuit recently reaffirmed, “[w]e begin our inquiry into whether this
constitutional violation was clearly established by defining the law at issue in a concrete,
particularized manner.” Shafer v. County of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017).
“Defined at an appropriate level of specificity,” see id., the question in this case is whether a
deputy violates clearly established law when he commands a police canine to bite and hold a
suspect until that suspect begins to obey his commands or otherwise indicates he intends to
surrender when that suspect has a felony warrant out for his arrest, has not been searched for
weapons, has evaded a police search for more than one hour, and is not surrendering or obeying
the officer’s instructions. The answer is that the deputy does not violate clearly established law
under these circumstances.
In order to find a violation of clearly established law, the Court must “identify a case
where an officer acting under similar circumstances . . . was held to have violated the Fourth
Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017). Bogle “bears the burden of showing
that the rights allegedly violated were clearly established.” Shafer, 868 F.3d at 1118. In Shafer,
PAGE 28 – OPINION AND ORDER
the Ninth Circuit, faced with a qualified immunity claim in an unreasonable force case, noted
that Shafer had cited “four cases with comparable degrees of force used by officers, but none of
which involved a challenging environment or an act of physical resistance or obstruction by the
arrestee.” Id. at 1117. Similarly, Bogle cites to several cases, but none is sufficiently factually
similar to find clearly established law on the situation that McGlothin faced.
Additionally, even if McGlothin was mistaken about the reasonableness of his actions, it
would have been a reasonable mistake. This is not the sort of “plainly incompetent” or
“knowing” violation of the law that is unprotected by the qualified immunity doctrine. The
existing case law regarding use of police dogs does not provide enough clarity to conclude that
“every reasonable official would have understood . . . beyond debate” that their actions violated
the law. Shafer, 868 F.3d at 1118 (emphasis and alterations in original) (quotation marks
omitted). Because McGlothin “objectively could have believed that his conduct was lawful,” he
is entitled to qualified immunity. See Watkins, 145 F.3d at 1092. Accordingly, summary
judgment is granted on Plaintiff’s claims against McGlothin.
E. Monell Claim against Clackamas County
Bogle also alleges a Monell violation against Clackamas County.13 Local governments
may be held liable under § 1983 “if the governmental body itself subjects a person to a
deprivation of rights or causes a person to be subjected to such deprivation.” Connick v.
Thompson, 563 U.S. 51, 60 (2011) (quotation marks omitted). But this is not a doctrine of
vicarious liability—local governments “are responsible only for ‘their own illegal acts.’” Id.
(quoting Pembaur v. Cincinnatti, 475 U.S. 469, 479 (1986). Therefore, one who seeks to hold a
Monell claims arise from Monell v. Dep’t. of Soc. Servs. of City of New York, 436 U.S.
PAGE 29 – OPINION AND ORDER
local government liable under § 1983 must show that “action pursuant to official municipal
policy caused their injury.” Id. (quotation marks omitted).
Because the Court finds no underlying constitutional violation with respect to the
decision to use canines to search for Bogle, Bogle’s first canine bite, or Robinson’s use of force
against Bogle, the Court need not address the county’s liability for those actions. Because there
is a triable issue of fact with respect to Bogle’s second canine bite, however, the Court examines
whether Bogle has established a genuine dispute of material fact relating to Clackamas County’s
liability for Bogle’s second canine bite.14
As the Ninth Circuit recently explained, “[t]he ‘first inquiry in any case alleging
municipal liability under § 1983 is the question whether there is a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation.’” Castro v. Cty. of Los
Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016), cert. denied sub nom. Los Angeles Cty., Cal. v.
Castro, 137 S. Ct. 831 (2017) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 385
(1989)). A municipal policy may be established by showing one of three things: (1) a
“longstanding practice or custom which constitutes the standard operating procedure of the local
government entity”; (2) that “the decision-making official was, as a matter of state law, a final
policymaking authority whose edicts or acts may fairly be said to represent official policy in the
area of decision”; or (3) “an official with final policymaking authority either delegated that
authority to, or ratified the decision of, a subordinate.” Ulrich v. City & Cty. of San Francisco,
308 F.3d 968, 984-85 (9th Cir. 2002) (citations and quotation marks omitted).
Unlike individuals, “municipalities do not enjoy immunity from suit—either absolute
or qualified—under § 1983.” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 166 (1993).
PAGE 30 – OPINION AND ORDER
“A custom or practice can be inferred from evidence of repeated constitutional violations
for which the errant municipal officers were not discharged or reprimanded.” Velazquez v. City
of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015) (alterations omitted) (quoting Hunter v.
Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011)). For example, “[e]vidence of identical
incidents to that alleged by the plaintiff may establish that a municipality was put on notice of its
agents’ unconstitutional actions.” Id. at 1027 (quotation marks and alteration omitted). Similarly,
“general evidence of departmental treatment of complaints and of the use of force can support
the plaintiff’s theory that disciplinary and complaint processes contributed to the police excesses
complained of because the procedures made clear to the officer that he could get away with
anything.” Id. (alterations and quotation marks omitted). “The custom or policy must be a
‘deliberate choice to follow a course of action . . . made from among various alternatives by the
official or officials responsible for establishing final policy with respect to the subject matter in
question.’” Castro, 833 F.3d at 1075 (alteration in original) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion)).
When an allegation is based not on a formal policy but on a custom, in order to support a
Monell claim such “custom must be so ‘persistent and widespread’ that it constitutes a
‘permanent and well settled city policy.’” Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1233
(9th Cir. 2011) (quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)). “[L]iability for
improper custom may not be predicated on isolated or sporadic incidents.” Id. at 1233 (quoting
Trevino, 99 F.3d at 918).
In addition to “identify[ing] a custom or policy, attributable to the municipality, that
caused his injury,” Bogle must “demonstrate that the custom or policy was adhered to with
‘deliberate indifference to the constitutional rights of’” those with whom the deputies interact. Id.
PAGE 31 – OPINION AND ORDER
(quoting City of Canton, 489 U.S. at 385). The deliberate indifference standard is an objective
one. Castro, 833 F.3d at 1076 (noting that “an objective standard applies” to deliberate
indifference, and overruling other cases to the extent they suggest otherwise). Deliberate
indifference occurs when the need for “different action ‘is so obvious, and the inadequacy [of the
current procedure] so likely to result in the violation of constitutional rights, that the
policymakers can reasonably be said to have been deliberately indifferent to the need.’” Oviatt v.
Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992) (quoting City of Canton, 489 U.S. at 390).
Finally, the custom or practice must be the “‘moving force’ behind the constitutional violation.”
Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (quoting Monell, 436 U.S. at 694).
In his complaint, Bogle asserts two alternate theories of Monell liability. First, he alleges
that Sheriff Roberts ratified the use of excessive force on Bogle. He alternatively alleges that
CCSO has a custom or practice of using canines in a manner that amounts to excessive force. In
his response to Defendants’ motion for summary judgment, Bogle also argues that the
Clackamas County canine use of force policy is unconstitutional on its face and that Sheriff
Roberts is liable for failure to train, failure to discipline, and for instructing deputies using an
unconstitutional policy.15 Although Bogle’s complaint does not specifically allege a facially
unlawful canine policy,16 because a court must liberally construe the filings of a pro se plaintiff
and afford the plaintiff the benefit of any reasonable doubt, Hebbe v. Pliler, 627 F.3d 338, 342
Defendants claim that Bogle does not, in his sur-response to their motion, argue that
the canine policy is facially unconstitutional. But Bogle does make this argument at numerous
points in his initial response. ECF 198 at 131, 134, 140, 146, 148.
In his sur-response, requested by the Court, Bogle attempts to “clarify” his asserted
claims against Clackamas County through a declaration. But summary judgment is not the time
to supplement a complaint.
PAGE 32 – OPINION AND ORDER
(9th Cir. 2010), the Court addresses Bogle’s argument that Clackamas County maintains a
facially invalid canine policy.
1. Sheriff Roberts’ Ratification
As to Bogle’s first theory, as discussed above, Bogle has presented no evidence to create
a genuine dispute of fact as to Sheriff Roberts’ ratification or approval of the incident involving
Bogle. The Ninth Circuit articulated the standard for a Monell claim based on ratification in
Lytle v. Carl:
To show ratification, a plaintiff must show that the authorized
policymakers approve a subordinate’s decision and the basis for it.
The policymaker must have knowledge of the constitutional
violation and actually approve of it. A mere failure to overrule a
subordinate’s actions, without more, is insufficient to support a
§ 1983 claim.
382 F.3d 978, 987 (9th Cir. 2004) (citations and quotation marks omitted).
Bogle simply asserts, in a conclusory fashion, that because no disciplinary action was
taken against the officers involved in his arrest, Sheriff Roberts personally ratified their actions.
Sheriff Roberts stated in a sworn declaration that he only became aware of the incident involving
Bogle after Bogle filed this lawsuit. Bogle has presented no evidence to the contrary. Therefore,
there is no genuine dispute of material fact as to whether Sheriff Roberts ratified the use of force
2. Unlawful Custom or Practice
Bogle argues generally that Clackamas County has a custom of using unconstitutional
force on individuals who are not presenting any immediate threat and are not wanted for serious
crimes. ECF 198 at 157. Bogle’s Complaint purports to base his allegation of an unlawful
custom or practice on “prior tort claims and actions against” the County. Bogle’s Complaint cites
only one such prior case, Millican v. Clackamas County. See ECF 132-4. The claim in that case,
PAGE 33 – OPINION AND ORDER
however, was for negligence, rather than excessive force, and involved a bystander injured by a
canine during a search for a suspect. ECF 132-4. In Bogle’s response to Defendants’ motion for
summary judgment, he also discusses Kaady v. City of Sandy, a case alleging excessive force
after a man was shot and killed by officers of the City of Sandy and Clackamas County. 2008
WL 5111101 (D. Or. Nov. 26, 2008). Bogle argues that these two prior actions against
Clackamas County indicate ratification of an unlawful policy. But neither of these cases relates
to what Bogle here alleges—a custom of using canines in an unconstitutional manner.
In his response in opposition to Defendants’ motion for summary judgment, Bogle also
attaches as exhibits copies of CCSO use of force reports, totaling over 700 pages.17 See generally
ECF 198-4, 198-5, 198-6. Bogle relies on these documents to argue that CCSO has a practice of
using “extreme” canine force on suspects who are not presenting a threat to deputies, who are not
wanted for serious offenses, and who are “hiding passively,” rather than actively resisting arrest.
Bogle argues that this custom or practice runs contrary to the constitutional requirements in
Graham and other cases. Bogle directs the Court’s attention to several specific incidents in his
response to the motion for summary judgment. The Court has reviewed the reports of these
incidents and discusses those incidents below. The Court has also generally reviewed the other
use of force reports attached as Bogle’s exhibits.
Contrary to Bogle’s general assertion that the use of force reports indicates a pervasive
practice of using force against individuals who are only “hiding passively,” several of the
incidents that Bogle points the Court to involved suspects who were actively evading or running
Interspersed among these exhibits is commentary by Bogle on individual use of force
incidents. The Court considers these not as factual descriptions of what occurred in each
incident, but as argument by Bogle.
PAGE 34 – OPINION AND ORDER
from police.18 In some cases, suspects were posing a clear threat to deputies.19 In at least two of
the incidents that Bogle cites, the suspects attacked or began to attack deputies. In one, the
suspect lunged toward deputies. ECF 198-4 at 4-23.20 In another, the suspect had fired shots at a
police car shortly before a canine was deployed to find him. ECF 198-6 at 209.21
Bogle cites incident No. 14-23886, though he seems to do so only to note that deputies
have “PA” systems available to them. Regardless, this incident involved a suspect who had a
history of being armed, was in a stolen vehicle, and was actively running from police. ECF 198-5
Bogle also draws the Court’s attention to incident No. GO 10 2015-31645. In that
incident the suspect, who had a “caution” felony warrant out, was bitten by a police canine after
having run from police, jumped from a window, continued to run, and begun to climb a fence.
ECF 198-6 at 227-249.
Similarly, Bogle references incident No. 10 2015-33116. In this case, the suspect had a
warrant out for his arrest and ran from deputies while deputies were attempting to place him in
handcuffs. ECF 198-5 at 22-37.
Bogle cites incident No. GO 10 2016-18123 as an example where canines bit a man
who was already compliant. ECF 198 at 47. But shortly before deputies used canines to take the
man into custody, the man was making homicidal and suicidal statements and had threatened to
shoot the first deputy that he saw. He brandished a firearm. Although he eventually lowered his
firearm to the ground, at the time a canine was released on him, he was not complying with the
deputies’ orders to put his hands in the air. The deputy who released the canine did so when the
man was hunched over, and the man hands were out of the deputy’s view. ECF 198-4 at 173104.
In incident No. GO 10 2016-32897, deputies responded to a domestic disturbance
involving a man who was speaking unintelligibly, had a history of resisting arrest and interfering
with or eluding police, and was refusing to comply with deputies. The man lunged toward a
deputy, and at that moment one deputy deployed a taser while another deployed a canine, which
was called off once the man was subdued. ECF 198-4 at 2-23.
Bogle seems to cite incident No. 14-2085 simply for the proposition that deputies have
at their disposal means of force that are less severe than canines. ECF 198 at 182. To the extent
that Bogle relies on it to establish a custom of using canines in a manner that constitutes
unreasonable force, this incident does not support his argument. In that incident, the individual
was actively fleeing from police and had fired shots at a police car shortly before a canine was
sent in to find him. ECF 198-6 at 209.
PAGE 35 – OPINION AND ORDER
Bogle cites Incident No. 15-6824, but provides only disjointed portions of the use of
force report, which include little background information on that incident. The information
available indicates that the suspect had evaded a police car and was refusing to cooperate with
police, and that deputies first attempted to use pepper spray to take the individual into custody, to
no avail. ECF 198-4 at 130-75. Bogle also cites incident No. GO 10 2015-12288, in which the
suspect had a history of attempting to elude police, resisting arrest, and unlawful possession of a
firearm and possession of knives. There was a felony parole violation warrant out for his arrest.
The suspect was hidden from deputies, who were worried that he was lying in wait; the deputies
determined that a canine was the safest method to use to secure this individual’s compliance.
ECF 198-4 at 176-89. Finally, Bogle relies on Incident No. GO 10 2016-4112 to suggest that
Clackamas County has a practice of using intimidation to receive permission to search
properties. ECF 198 at 44. This argument is unrelated to Bogle’s allegation of an unlawful
practice of deploying canines.
Each of the incidents that Bogle cites to—and every use of police force—presents a
unique set of facts, and the reasonableness of any given use of force depends upon all
surrounding circumstances. The use of force reports that Bogle has submitted are insufficient to
create a genuine dispute of material fact as to whether Clackamas County has a custom or
practice of using police canines in an unconstitutional manner.
Bogle argues that his exhibits show that “in most case where the canines are deployed off
leash that the majority of suspects are bitten.” But Bogle has provided no evidence that he has
submitted reports of all cases where canines were deployed off leash, so there is no evidence to
support this conclusory assertion. Defendants have provided some evidence as to the number of
canine deployments, uses of force, and bites. Between January 1, 2014, and December 31, 2016,
PAGE 36 – OPINION AND ORDER
there were 2,117 canine deployments by CCSO. Defendants provided an estimate that there were
about 468 “use of force incidents” out of these 2,117 deployments. The Court understands canine
“deployments” to refer to canines being taken out of a vehicle and onto a scene. ECF 198-1
at 80. Defendants have not defined “use of force incidents” for the Court, so these figures are
only marginally instructive. Defendants, however, do provide evidence that of those 2,117
deployments, there were 32 incidents in which a suspect was bitten by a canine. Bogle has
provided no evidence to support the assertion that this number of bites, or uses of force—and
specifically the number among those that constitute an unreasonable use of force in violation of
the Fourth Amendment—rises to the level of a custom that is “so persistent and widespread that
it constitutes a permanent and well settled city policy.” Hunter, 652 F.3d at 1233 (quotation
marks omitted). The attached use of force reports alone do not create a genuine dispute of fact on
Further, Bogle has not provided evidence that the alleged “custom” of using
unconstitutional canine force “was adhered to with deliberate indifference to the constitutional
rights” of suspects, as required. Castro, 833 F.3d at 1076 (quotation marks omitted). As
discussed above, the use of force reports do not present a situation in which the need for
“different action is so obvious” that the failure to change practice can be characterized as
deliberate indifference. Oviatt, 954 F.2d at 1477-78 (quotation marks omitted). Nor has Bogle
provided any evidence that officers involved in any of the use of force incidents Bogle attaches
were not, in fact, disciplined or instructed to change their practices.
Because there is no genuine dispute of material fact as to whether Clackamas County
Sheriff’s Department’s use of canines amounts to a custom or practice of using force in violation
of the Fourth Amendment, this theory of Monell liability also fails.
PAGE 37 – OPINION AND ORDER
3. Facially Unlawful Policy
Bogle argues that CCSO’s canine policy is invalid on its face because it does not
explicitly include the Graham factors for reasonableness. Bogle argues that the policy allows
deputies to deploy multiple canines on hidden suspects who are unarmed, non-threatening, and
not wanted for serious crimes, and that this constitutes a facially invalid policy. See ECF 198
at 131. Bogle argues that because the policy allows for the deployment of canines off leash to
track down individuals suspected of a misdemeanor offense, it runs afoul of the requirements in
Graham. Bogle also asserts that the policy is unconstitutional because, as he claims, it does not
instruct handlers to look out for bystanders, and because canines are trained to bite any
individual they encounter, rather than a particular individual. See ECF 198 at 143-44.
In order to pass constitutional muster, a policy need not expressly set out the three-part
test from Graham, as Bogle argues. Bogle argues that the policy runs afoul of Graham because,
in some cases, it allows for the deployment of canines to search for individuals suspected of a
misdemeanor. This argument also misses the mark. Graham is a multi-factor test, so each factor
need not be met in each case in order for an action to be constitutional. As the Court has
explained, the constitutionality of the use of force depends on all the surrounding circumstances.
As articulated by the Supreme Court in Salerno, in the context of a challenge to the
validity of a policy on its face, the party asserting invalidity must “show that ‘no set of
circumstances exists under which the policy would be valid.’” Lanier v. City of Woodburn, 518
F.3d 1147, 1150 (9th Cir. 2008) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987))
(alteration omitted). The Ninth Circuit has explicitly declined to adopt a different standard. S.D.
Myers, Inc. v. City & Cty. of San Francisco, 253 F.3d 461, 467 (9th Cir. 2001). The Salerno
standard means that “a policy of general applicability is facially valid unless it can never be
applied in a constitutional manner.” Lanier, 518 F.3d at 1150 (emphasis in original).
PAGE 38 – OPINION AND ORDER
Bogle has not alleged sufficient facts to create a genuine dispute of material fact
regarding whether the Clackamas County canine use of force policy is unconstitutional on its
face. The Court has concluded that the canine use of force policy was applied in a constitutional
manner with respect to Bogle’s first encounter with a police canine, and the Court need not look
further than this. Because it is not the case that the policy “can never be applied on a
constitutional manner,” Bogle’s facial invalidity argument fails.
F. Additional Claims
Bogle raises several new claims in his response to Defendants’ motion for summary
judgment. He may not allege new claims in response to summary judgment. See Wasco Prods.,
Inc. v. Southwall Tech., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“‘[S]ummary judgment is not a
procedural second chance to flesh out inadequate pleadings.’”) (quoting Fleming v. LindWaldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)). Therefore, the Court does not consider any of
the new claims, briefly discussed below, raised by Bogle in his summary judgment response.
Bogle claims that O’Neil and McGlothin breached a duty to Bogle “to control their
[c]anines and keep them on leash while on elevated terrain,” and that the failure to do so
constituted gross negligence. He also claims that the deputies were negligent for deploying a
canine with a “known brain disease that cause[s] aggression in canines.” Bogle’s complaint did
not allege any negligence claims, however, and did not put the Defendants on notice of any such
Bogle claims that the deputies destroyed part of Ms. Ridley’s fence on her property
during their search. He does not assert this claim in his complaint, however, and it is unrelated to
the use of force in his arrest. Bogle also argues that he alleged a battery claim in his complaint
and attempts to further argue the merits of that claim. No battery claim is alleged in the
PAGE 39 – OPINION AND ORDER
Bogle also seems to assert several related claims suggesting an unreasonable search. He
states that the deputies did not have a warrant to search Ms. Ridley’s property and that the
deputies lacked probable cause to “search and stop” Bogle. These claims are irrelevant, because
the deputies had a warrant for Mr. Bogle’s arrest, and Ms. Ridley admittedly granted the officers
permission to search her property. Nor were such claims alleged in Bogle’s complaint. Similarly,
Bogle argues, and the Defendants do not dispute, that Bogle was not read his Miranda rights.
The proper remedy for a Miranda violation, however, is the exclusionary rule, which is not
relevant at this stage in the proceedings. Nor was such a claim alleged in his complaint.
Defendants’ motion for summary judgment is GRANTED.
IT IS SO ORDERED.
DATED this 15th day of November, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 40 – OPINION AND ORDER
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