Gregory v. Newberg et al

Filing 32

Opinion and Order. The Court GRANTS Defendants Amended Motion 29 to Dismiss and DISMISSES this matter with prejudice. Defendants Motion 27 to Dismiss is moot. Signed on 03/17/2016 by Judge Anna J. Brown. See attached 12 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

AUSTIN GREGORY,
Plaintiff,
v.
CITY OF NEWBERG; HUNTLEY
MILLER, Personally; and BRIAN
CASEY, Personally,
Defendants.

LEONARD RANDOLPH BERMAN
4711 S.W. Huber Street
Suite E-3
Portland, OR 97219
[phone]
Attorney for Plaintiff
STEVEN A. KRAEMER
BRYCE W. HANKS
Hart Wagner, LLP
1000 S.W. Broadway
Suite 2000
Portland, OR 97205
[phone]
Attorneys for Defendants

1 - OPINION AND ORDER

3:15-CV-00473-BR
OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendants’ Amended
Motion (#29) to Dismiss.

For the reasons that follow, the Court

GRANTS Defendants’ Motion.

BACKGROUND
On March 23, 2015, Plaintiff Austin Gregory filed a
Complaint in this Court against the City of Newberg, Officer
Miller, and Chief of Newberg Police Brian Casey asserting (1) a
claim pursuant to 42 U.S.C. § 1983 for wrongful arrest in
violation of the Fourth Amendment to the United States
Constitution; (2) a claim pursuant to 42 U.S.C. § 1983 for
excessive force in violation of the Fourth Amendment; and (3) a
claim under Monell v. Department of Social Services, 436 U.S. 658
(1978).

Plaintiff also asserts state-law claims for negligence,

false arrest, battery, and malicious prosecution.

Plaintiff

alleges the following facts in support of his claims:
On March 31, 2013 at 10:13 a.m., Mr. Gregory, then
a minor of 16 years, was lawfully in his home at
819 Zoe Court in Newberg, when Huntley Miller
visited and spoke with his mother Patricia
Gregory. Austin Gregory came near the door and
spoke to Miller. While speaking with Ms. Gregory,
Miller instructed Miller [sic] to go “into” his
house or face arrest, while Austin was already
standing inside the home.
When Austin verbally challenged Millers'
authority, saying he was rightfully and lawfully
in his own home and there was no basis to arrest
2 - OPINION AND ORDER

him, Miller lunged in to the home and grabbed
Austin out of his home, slammed him on to the
ground and, battered him and arrested him. He
suffered a concussion and closed head injuries.
His juvenile conviction[s] for interfering and
resisting arrest [are] pending appeal in State
court.1
Plaintiff timely filed a notice of tort claim
September 23, 2013.
Compl. at ¶¶ 8-11.
On June 1, 2015, Defendants filed a Motion for Judgment on
the Pleadings as to all of Plaintiff’s claims.
On September 21, 2015, the Court entered an Opinion and
Order in which it granted Defendants’ Motion for Judgment on the
Pleadings.

The Court declined to permit Plaintiff to replead his

claims under 42 U.S.C. § 1983 for wrongful arrest and excessive
force in violation of the Fourth Amendment as well as his statelaw claims for false arrest, battery, and malicious prosecution
because the Court concluded those claims were barred by Heck v.
Humphrey, 512 U.S. 477 (1994).

The Court, however, granted

Plaintiff leave to file an Amended Complaint to cure the
deficiencies in his Monell claim and his claim for negligence.
Specifically, the Court noted as to Plaintiff’s Monell claim that
Plaintiff’s allegations . . . do not satisfy the
current pleading standard because they do not
include sufficient allegations of underlying facts

1

In his Amended Complaint Plaintiff notes his juvenile
conviction for interfering and resisting arrest “has now been
Affirmed Without Opinion.” Am. Compl. at ¶ 10.
3 - OPINION AND ORDER

to give fair notice to Defendants or to enable
Defendants to defend themselves effectively. In
addition, Plaintiff’s factual allegations
underlying his Monell claim, even when viewed as
true, do not plausibly suggest an entitlement to
relief.
Opin. and Order at 22 (issued Sept. 21, 2015)(quotation omitted).
The Court also noted “Plaintiff’s negligence claim is based
on the same set of facts that give rise to his § 1983 claim for
excessive force and his § 1983 Monell claim.”

Id. at 18.

In

this district courts have held “a state common-law claim of
negligence may be maintained separately from a § 1983 claim only
when the negligence claim is based on facts that are different
from the facts on which the § 1983 claims are based.”

Whitfield

v. Tri-Metropolitan Transp. Dist., No. 06–1655–HA, 2009 WL
839484, at *11 (D. Or. Mar. 30, 2009)(citing Shilo v. City of
Portland, Civ. No. 04–130–AS, 2005 WL 3157563, *1 (D. Or.
Nov. 22, 2005)).

The Court, therefore, granted Plaintiff leave

to amend his negligence claim to the extent that he could allege
a set of facts separate from those that form the basis for his
§ 1983 claims.
On November 13, 2015, Plaintiff filed an Amended Complaint
against Defendants realleging his Monell claim and his claim for
negligence.
On December 18, 2015, Defendants filed an Amended Motion to
Dismiss.

The Court took Defendants’ Motion under advisement on

January 13, 2016.
4 - OPINION AND ORDER

STANDARDS
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as
true, to “state a claim to relief that is
plausible on its face.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A
claim has facial plausibility when the plaintiff
pleads factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 556.
. . . The plausibility standard is not akin to a
“probability requirement,” but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of
‘entitlement to relief.’” Id. at 557, 127 S. Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Atlantic, 550 U.S. at 555-56.

See also Bell

The court must accept as true the

allegations in the complaint and construe them in favor of the
plaintiff.

Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).

The pleading standard under Federal Rule of Civil Procedure
8 “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”
U.S. at 555).

Iqbal, 556 U.S. at 678 (quoting Twombly, 550
See also Fed. R. Civ. P. 8(a)(2).

“A pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’”
Twombly, 550 U.S. at 555).

Id. (citing

A complaint also does not suffice if

it tenders “naked assertion[s]” devoid of “further factual
enhancement.”

Id. at 557.

5 - OPINION AND ORDER

"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."

Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

2012)(citation omitted).

A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."

Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007)(citation omitted).

DISCUSSION
As noted, Defendants move to dismiss both of Plaintiff’s
claims.
I.

Plaintiff does not sufficiently state a negligence claim.
In his initial Complaint Plaintiff alleged Defendant City of

Newberg was negligent because it (1) failed “to administer
training and to timely and appropriately hire, train and
supervise employees regarding dealing with citizens safely”;
(2) failed “to hire, train and supervise employees regarding safe
restraint of civilians”; and (3) failed “to train for legal bases
to arrest.”

Plaintiff also asserted the individual officers

“were negligent in their dealings with plaintiff in causing
injury without provocation or justification.”

In his Amended

Complaint Plaintiff makes the same factual allegations in
6 - OPINION AND ORDER

his negligence claim as he made in his initial Complaint and
adds only that Defendants failed to “discipline or terminate
employees regarding safe restraint of civilians.”
¶ 24(b)(emphasis added).

Am. Compl. at

Plaintiff does not add any allegations

in the Facts section of his Amended Complaint that support his
claim for negligence or that establish his claim for negligence
is based on facts different from those that underlie his Monell
claim or his § 1983 claims (claims that the Court has already
concluded are barred by Heck).

The Court, therefore, concludes

Plaintiff has failed to plead sufficiently a claim for negligence
in his Amended Complaint.
Accordingly, the Court grants Defendants’ Motion to Dismiss
Plaintiff’s negligence claim.

Because the Court already has

given Plaintiff a chance to amend his Complaint to state a
negligence claim adequately, the Court declines to grant
Plaintiff a third opportunity to replead this claim.
II.

Plaintiff does not sufficiently state a claim under Monell.
In Monell the Supreme Court held municipalities are

“persons” subject to damages liability under § 1983 when “action
pursuant to official municipal policy of some nature cause[s] a
constitutional tort.”

436 U.S. at 691.

The Supreme Court made

clear that the municipality itself must cause the constitutional
deprivation and that a city may not be held vicariously liable
for the unconstitutional acts of its employees under the theory

7 - OPINION AND ORDER

of respondeat superior.

Id.

See also City of Canton v. Harris,

489 U.S. 378, 385 (1989)(requiring “a direct causal link between
a municipal policy or custom and the alleged constitutional
deprivation”).
The Ninth Circuit has held a plaintiff may establish
municipal liability under Monell in one of three ways:

(1) the

officer “committed the alleged constitutional violation pursuant
to a formal governmental policy or a longstanding practice or
custom which constitutes the standard operating procedure of the
local governmental entity,” (2) “the individual who committed the
constitutional tort was an official with final policy-making
authority,” or (3) “an official with final policy-making
authority ratified a subordinate's unconstitutional decision or
action and the basis for it.”

Gillette v. Delmore, 979 F.2d

1342, 1346–47 (9th Cir. 1992).

See also Heath v. City of Desert

Hot Springs, No. 13–55946, 2015 WL 3942839, at *3 (9th Cir.
June 29, 2015)(same).
In his Monell claim Plaintiff initially alleged:
Huntley Miller, acting under color of law,
deprived plaintiff of his Fourth Amendment rights.
Brian Casey, acting as Chief of Police was the
final policymaker for City of Newberg as to
officer conduct and he knowingly ratified and
approved of deputies excessive force without
reasonable suspicion or probable cause that a
crime had been committed or a danger existed.
In the alternative, there exists a custom,
unwritten policy or practice to use excessive
8 - OPINION AND ORDER

force on citizens based on prior tort claims and
actions against Miller and other Newberg officers.
Compl. at ¶¶ 23-25.

In his Amended Complaint Plaintiff alleges

the following:
In the alternative, there exists a custom,
unwritten policy or practice to use excessive
force on citizens based on prior tort claims and
actions against Miller and other Newberg officers,
that has been ratified by Chief Casey by nonaction in the face of official misconduct.
Am. Compl. at ¶ 22 (the only additions to Plaintiff's initial
Complaint are italicized).

In the Facts section of his Amended

Complaint Plaintiff also set out a number of actions filed in
this Court and in state court against Newberg Police Officers to
support his Monell claim.

Defendants, however, assert Plaintiff

still has not sufficiently stated a claim against the City of
Newberg for Monell liability.
In AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631,
636-37 (9th Cir. 2012), the Ninth Circuit addressed the level of
pleading sufficient to state a claim under Monell in light of the
Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The
court noted:
In the past, our cases have not required parties
to provide much detail at the pleading stage
regarding such a policy or custom. “In this
circuit, a claim of municipal liability under
§ 1983 is sufficient to withstand a motion to
dismiss even if the claim is based on nothing more
than a bare allegation that the individual
officers' conduct conformed to official policy,
9 - OPINION AND ORDER

custom, or practice.” [Whitaker v. Garcetti, 486
F.3d 572, 581 (9th Cir. 2007)](citation and
internal quotation marks omitted).
* * *
[After Twombly and Iqbal, however,] . . . “to be
entitled to the presumption of truth, allegations
in a complaint . . . may not simply recite the
elements of a cause of action, but must contain
sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to
defend itself effectively. Second, the factual
allegations that are taken as true must plausibly
suggest an entitlement to relief, such that it is
not unfair to require the opposing party to be
subjected to the expense of discovery and
continued litigation.”
Hernandez, 666 F.3d at 637 (quoting Starr v. Baca, 652 F.3d 1202
(9th Cir. 2011)).
Here Plaintiff did not include additional factual
allegations in his Amended Complaint to support his Monell claim
beyond those the Court has already found to be insufficient.
Plaintiff’s allegations in his Amended Complaint regarding his
Monell claim may have satisfied the pre-Twombly/Iqbal standard.
See Hernandez, 666 F.3d at 638 n.6 (“[A]t the time [the district
court] denied [the plaintiff] leave to amend, our precedent
required no more than the allegation that the government
officials acted pursuant to an established policy or custom.”).
Plaintiff’s Amended Complaint, however, does not include
sufficient allegations of underlying facts to give fair notice to
Defendants or to enable Defendants to defend themselves
effectively, both of which are required under the current
10 - OPINION AND ORDER

standard.

In addition, Plaintiff’s factual allegations

underlying his Monell claim, even when viewed as true, do not
“plausibly suggest an entitlement to relief.”

Moreover, the

record reflects none of the actions Plaintiff lists in his Facts
section in support of his Monell claim have resulted in verdicts
favoring plaintiffs.

For example, in Warrens v. City of Newberg,

3:04-CV-01692-MO, Judge Michael Mosman granted the defendants’
motion for summary judgment and dismissed the matter with
prejudice.

In Kim v. Ronning, et al., 3:05-CV- 01167-HA, the

parties settled the matter, and Judge Ancer Haggerty entered an
order of dismissal before any ruling was made on the defendants’
pending motion for summary judgment.

In Miller v. Yamhill

County, 3:08-CV-00503-BR, this Court dismissed the matter for
failure to prosecute.

Two other matters cited by Plaintiff are

still pending and do not contain any motions decided in the
plaintiffs’ favor as of the date of this Opinion and Order.

The

final matter cited by Plaintiff has not yet been filed in any
court.

These cases, therefore, do not establish or create a

reasonable inference of a Monell violation by the City of
Newberg.
In any event, because Plaintiff has not established any
underlying constitutional violation, he cannot maintain a claim
under Monell.

See, e.g. Simmons v. Navajo County Ariz., 609 F.3d

1011, 1021 (9th Cir. 2010)(“Because we hold that there was no

11 - OPINION AND ORDER

underlying constitutional violation, the [plaintiffs] cannot
maintain a claim for municipal liability.”); Patel v. Maricopa
County, 585 F. App’x 452, 452 (9th Cir. 2014)(The plaintiff’s
“Monell and supervisory liability claims fail as there was no
underlying constitutional violation.”).
Accordingly, the Court grants Defendants’ Motion to Dismiss
Plaintiff’s Monell claim.

Because the Court already has given

Plaintiff a chance to amend his Complaint to state a Monell claim
sufficiently, the Court declines to grant Plaintiff a third
opportunity to replead that claim.

CONCLUSION
For these reasons, the Court GRANTS Defendants’ Amended
Motion (#29) to Dismiss and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 17th day of March, 2016.

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

12 - OPINION AND ORDER