Withers et al v. Frates, et al

Filing 80

Opinion and Order. the Court GRANTS in part and DENIES in part Defendant's Motion (# 47 ) for Summary Judgment. The Court GRANTS Defendant's Motion as to the federal claims alleged in Claims One and Two and DISMISSES those claims with prej udice. The Court DENIES Defendant's Motion as to the Estate's state-lawclaims as alleged in Claims Three and Four. The Court DIRECTS the parties to file no later than February 16, 2018, simultaneous, supplemental briefs (not toexceed five pages) addressing whether (1) the Court should exercise its discretion to retain supplemental jurisdiction over the state-law claims or whether it should decline to do so and (2) whether the fact that only state-law claims remain will affect the par ties' recent statements as to the timing of their availability for trial or the place of trial. The Court also DENIES as moot Defendant's Motion (# 67 ) to Strike and Wilson's Motion (# 57 ) to Strike.IT IS SO ORDERED. Signed on 2/2/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KRISTEN WILSON,1 Personal
Representative of the Estate
of Jayson Matthew Withers, and
KRISTEN WILSON,

3:16-cv-01690-BR
OPINION AND ORDER

Plaintiffs,
v.
CHARLES FRATES,
Defendant.
MICHELLE R. BURROWS
Michelle R. Burrows, PC
420 S.W. Washington St.
Suite 300
Portland, OR 97140
[phone]
JENNIFER L. COUGHLIN
Brothers Hawn and Coughlin
974 N.W. Riverside Blvd
Bend, OR 97703
[phone]
Attorneys for Plaintiffs
ELLEN F. ROSENBLUM
Attorney General
ROBERT E. SULLIVAN
Senior Assistant Attorney General
ANDREW D. HALLMAN
Although Kristen “Withers” appeared in the original
Complaint as a plaintiff individually and as the Personal
Representative of the Estate of Jayson Matthew Withers, Kristen
Withers's name was changed to Kristen "Wilson" in the caption of
the First Amended Complaint. The Court, therefore, will refer to
Kristen Withers as "Wilson" throughout this Opinion and Order.
1

1 - OPINION AND ORDER

Assistant Attorney General
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301
[phone]
Attorneys for Defendant
BROWN, Judge.
This case come before the Court on the Motion (#47) for
Summary Judgment and Motion (#67) to Strike Portions of the
Declaration of Jeremy Bauer filed by Defendant Charles Frates and
the Motion (#57) Striking Testimony Offered in Support of
Defendant’s Motion for Summary Judgment filed by Plaintiff
Kristen Wilson as Personal Representative of the Estate of Jayson
Withers and in her individual capacity.

The Court heard oral

argument and took these motions under advisement on January 11,
2018.
For the reasons that follow, the Court GRANTS in part
Defendant’s Motion for Summary Judgment as to Plaintiffs’ federal
claims and DENIES the Motion as to Plaintiffs’ state-law claims.
The Court also DENIES as moot Defendant’s Motion to Strike and
DENIES as moot Plaintiffs’ Motion to Strike.

BACKGROUND
The following facts are taken from the Joint Statement of
Agreed Facts (#41) and the materials the parties submitted in
support of their Motions.

Accordingly, these facts are

undisputed unless otherwise noted.
Jayson Withers was an inmate at Eastern Oregon Correctional
2 - OPINION AND ORDER

Institution (EOCI) in Pendleton, Oregon, from 2010 until
August 29, 2014, when he died after Defendant Frates, a
corrections officer at EOCI, shot him.
EOCI houses approximately 1,600 male inmates.

The EOCI

facility is divided into East and West sides, and each side has a
recreation yard referred to as the “East Yard” and “West Yard”
respectively.
Whenever inmates are in either of the yards, there are
corrections officers on the ground among the inmates who do not
carry firearms but do carry pepper spray.

These officers also

carry radios that are set to a designated channel for their EOCI
area.
There is one guard tower for the West Yard where this
incident occurred.

A corrections officer is assigned to the

tower whenever inmates are in the West Yard.

The tower officer

supervises the yard from inside a small booth on the tower or
from an adjacent platform.

The tower officer carries a radio and

is armed with a Ruger Mini-14, which is a .223 caliber semiautomatic rifle with a four-power scope.

The tower officer also

has access to a footpedal-operated public-address system to
communicate with inmates in the yard.
Each yard is equipped with several video cameras, but those
cameras do not canvas the entire yard.

The cameras are remotely

controlled by the EOCI Control Center.

If an officer reports by

radio that an incident is occurring, the Control Center can then
pan, zoom, and record the incident at the appropriate location.
3 - OPINION AND ORDER

On the morning of August 29, 2014, Defendant was assigned
duty in the West Yard Tower, and, accordingly, he went to the
EOCI Armory, logged in, obtained the firearms required for his
assigned tower duties, and proceeded to the West Yard Tower.
Before inmates were released into the West Yard for
recreation that morning, Defendant was at his assigned station in
the West Yard Tower and Corrections Officers Steven Surber,
Chester Kropornicki, and Dennis Bliss were on the ground in the
West Yard.

After these four officers were in their assigned

places, inmates were allowed to enter the West Yard, which opened
at approximately 8:30 a.m.

Approximately 189 inmates entered the

yard, including Withers, Cameron Hayes, and Eric Sexton.
Shortly after entering the yard Withers and Hayes had their
photo taken with a few other inmates, and Defendant saw some of
that activity from his position in the tower.

After their photos

were taken, Withers and Hayes approached Sexton and requested
Sexton to take a walk with them around the West Yard track.
At some point Withers and Hayes engaged in an altercation
with Sexton near the backstop at the far end of the West Yard,
but Defendant did not observe Withers, Hayes, or Sexton after the
time Withers and Hayes had their photos taken until the
altercation was already underway.
When Defendant saw the altercation from inside the tower, he
stepped out of the tower with his rifle, used the rifle scope to
observe the altercation, lowered his rifle, and then chambered a
round.

Defendant also heard someone call out “stop fighting.”

4 - OPINION AND ORDER

In the meantime, Officers Surber, Bliss, and Kropornicki
also saw the altercation, and all three officers proceeded toward
the three inmates.

In particular, Officer Surber ran toward the

three inmates and yelled at them to stop.
After chambering a round, Defendant aimed the rifle at
Withers’s center of mass, fired a shot, and struck Withers.
Defendant did not fire a warning shot, blow a whistle, or
use the foot-pedal operated public-address system before shooting
Withers.

At the time Defendant fired the shot (approximately

8:45 a.m.) the altercation had being going on for less than a
minute.

Before Defendant fired the shot one of the yard cameras

was panned to the location of the altercation, but the placement
of the camera put it directly into the sun, and the video taken
immediately before the shot was unusable.
The shot Defendant fired entered through Withers’s neck at
the approximate level of bifurcation of the carotid; transected
his jugular vein on the left; struck his larynx, epiglottis,
vocal chords, and strap muscles; exited his neck and immediately
reentered his clavicle; and finally exited under his right arm.
Withers died on the way to the hospital due to excessive blood
loss.
Sexton was able to walk off the yard under his own power,
and at 9:50 a.m. Sexton was transported to St. Anthony’s Hospital
in Pendleton, Oregon.

He was diagnosed with a left orbital

fracture, facial swelling, and a headache.

Sexton did not show

any signs of intracranial or spinal trauma after further testing.
5 - OPINION AND ORDER

Sexton was discharged at 12:40 p.m. and did not require further
hospitalization for his injuries.

All follow-up treatment

occurred in Oregon Department of Corrections (ODOC) facilities.
Tower officers are authorized to use lethal force consistent
with ODOC’s rules and are required to comply with the following
provisions:
Oregon Administrative Rule (OAR) 291-013-0185(7)
(general provisions): “The use of force must be
objectively reasonable under all the circumstances
known to the employees at the time. The use of force
may range from verbal commands to the use of lethal
force. If the force other than lethal force reasonably
appears to be sufficient to achieve the correctional
objective, lethal force shall not be used.”
OAR 291-013-0215(2)(lethal force): “Lethal force may
be used [in a Medium Facility] when and to the extent
that an employee reasonably believes it necessary:
(a) To prevent imminent serious bodily injury or death
to one’s self or another person; . . . (c) To prevent
or stop a riot or other group disturbance by inmates
where there is reason to believe an inmate poses a
threat of escape or imminent serious bodily injury or
death to another person.”
OAR 291-013-0215(1)(lethal force): “Employees shall
consider every reasonable means of control before
resorting to the use of lethal force.”
OAR 291-013-0215(4)(lethal force): “Prior to resorting
to the use of lethal force against an inmate or other
person, if feasible, the employee shall give a verbal
warning from the imminent use of lethal force.”
OAR 291-013-0215(7)(lethal force): “Firearms will not
be used if innocent people are in the line of fire.”
Defendant was trained in and familiar with these rules, he
maintained his annual firearms proficiency in accordance with
ODOC rules, and he was qualified on the Ruger .223 rifle with and
without a scope.

After the incident, ODOC reviewed Defendant’s

conduct and determined the force used was in compliance with
6 - OPINION AND ORDER

ODOC’s use-of-force policy.

A state-court Grand Jury also

determined Defendant’s use of force was justified.
The parties agree Defendant was acting under color of law
and within the course and scope of his employment at all times
relevant to this incident.

STANDARDS
I.

Summary Judgment
Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
one . . . .

Id.

"This burden is not a light

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

7 - OPINION AND ORDER

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
II.

Id.

Section 1983
Section 1983 provides a remedy for the violation of

constitutional rights by any person acting under color of state
8 - OPINION AND ORDER

law.

42 U.S.C. § 1983.

Nevertheless, “[t]he doctrine of

qualified immunity protects government officials from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.”

Pearson v. Callahan, 555

U.S. 223, 231 (2009)(internal quotation marks omitted).
Qualified immunity is an immunity from being required to
defend a § 1983 action.

Morales v. Fry, 873 F.3d 817, 822 (9th

Cir. 2017)(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
The court follows a two-step test to evaluate whether qualified
immunity precludes such an action “under which summary judgment
is improper if, resolving all dispute of fact and credibility in
favor of the party asserting the injury, (1) the facts adduced
show that the officer’s conduct violated a constitutional right,
and (2) that right was ‘clearly established’ at the time of the
violation.”

Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788

(9th Cir. 2016)(en banc).

See also Demaree v. Pederson, No. 14-

16207, 2018 WL 505254, at *6 (9th Cir., Jan. 22, 2018).

DISCUSSION
Wilson, individually and as Personal Representative of the
Estate of Jayson Withers, her son, brings claims pursuant to 42
U.S.C. § 1983 for Defendant’s alleged violation of Jayson
Withers’s Eighth Amendment rights and Wilson’s own Fourteenth
Amendment rights.

In addition, the Estate alleges state-law

claims for battery and wrongful death.
9 - OPINION AND ORDER

I.

Defendant’s Motion for Summary Judgment
Defendant contends the Court should grant his summary-

judgment motion on the ground that he is entitled to qualified
immunity from the § 1983 claims.
Wilson contends Defendant is not entitled to qualified
immunity and that there are genuine disputes of material fact
that preclude summary judgment.
A.

Standard

Qualified immunity shields officials from civil liability
when their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
(2009).

Pearson v. Callahan, 555 U.S. 223, 231

Although the law “do[es] not require a case directly on

point” for a right to be clearly established, “existing precedent
must have placed the statutory or constitutional question beyond
debate.”

White v. Pauly, 137 S. Ct. 548, 551 (2017).

In other

words, qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.”

Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015).
To resolve questions of qualified immunity “courts engage in
a two-pronged inquiry.”
(2014).

Tolan v. Cotton, 134 S. Ct. 1861, 1865

“The first asks whether the facts, taken in the light

most favorable to the party asserting the injury, . . . show the
officer’s conduct violated a federal right.”

Id.

“The second

prong of the qualified immunity analysis asks whether the right
in question was clearly established at the time of the
10 - OPINION AND ORDER

violation.”

Id. at 1866.

Courts have the discretion to

determine the order in which to address these two prongs.
Pearson v. Callahan, 555 U.S. 233, 236 (2009).
Governmental actors are “shielded from liability for civil
damages if their actions did not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”

Tolan, 134 S. Ct. at 1866.

“[T]he salient

question . . . is whether the state of the law” at the time of an
incident provided “fair warning” to the defendants “that their
alleged [conduct] was unconstitutional.”

Id.

A noted, qualified immunity protects a defendant from a
lawsuit rather than providing a mere defense to liability.
Morales, 873 F.3d at 822.
B.

The Estate’s Eighth Amendment Claim

Defendant contends he is entitled to qualified immunity as
to the Estate’s Eighth Amendment excessive-force claim on the
ground that a requisite element of that claim is that Defendant
used force against Withers maliciously or sadistically for the
purpose of causing harm or that he harbored any malice toward
Withers, but there is not any evidence to support that element.
In any event, Defendant asserts any reasonable officer in his
position would have believed the force used was a good-faith
effort to restore discipline, and, therefore, he is entitled to
qualified immunity from Plaintiffs’ § 1983 claim.
Wilson, at the Personal Representative of the Estate,
however, contends there are numerous genuine disputes of material
11 - OPINION AND ORDER

fact to be resolved regarding Defendant’s use of force that
preclude the application of qualified immunity, including
discrepancies in Defendant’s testimony about the incident.
1.

The Law - Excessive Force Under the Eighth
Amendment

“When prison officials use excessive force against
prisoners, they violate the inmates’ Eighth Amendment right to be
free from cruel and unusual punishment.”
F.3d 898, 903 (9th Cir. 2002).

Clement v. Gomez, 298

The “unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual
punishment.”

Whitley v. Albers, 475 U.S. 312, 319 (1986).

To

establish a claim for excessive force based on a prison
official’s use of force during a prison disturbance, the
plaintiff must show the officer applied the force maliciously and
sadistically to cause harm rather than in a good-faith effort to
maintain or to restore discipline.
1, 6 (1992).

Hudson v. McMillian, 503 U.S.

See also Alexander v. Perez, 124 F. App’x 525, 526

(9th Cir. 2005)(it is not the degree of injury suffered, but
whether the degree of force was applied “maliciously and
sadistically for the purpose of causing harm.”).
has objective and subjective elements.

The standard

Objectively, the alleged

wrongdoing must be “harmful enough to establish a constitutional
violation.”

Hudson, 530 U.S. at 8.

Subjectively, prison

officials must act “with a sufficiently culpable state of mind.”
Id.
When force is used to keep order in the face of “a riot
or a lesser disruption, corrections officers must balance the
12 - OPINION AND ORDER

need to ‘maintain or restore discipline’ through force against
the risk of injury to the inmates.”

Id. at 6.

The use of force

that “could plausibly have been thought necessary” will not
subject a corrections officer to liability for an Eighth
Amendment violation.

Whitley, 475 U.S. at 321.

v. Gutierrez, 322 F.3d 689, 692 (9th Cir. 2003).

See also Marquez
When deciding

“whether a particular use of force was wanton, the courts
consider the objective need for force, the relationship between
any such need and the amount of force actually used, the threat
reasonably perceived by the correctional officer, whether the
officer took efforts to temper the severity of his response, and
the extent of the inmate’s injury.”

Marquez v. Gutierrez, 322

F.3d at 692 (citing Whitley, 475 U.S. at 321).
503 U.S. at 6.

See also Hudson,

Prison officials are allowed a “wide-ranging

deference in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.”

Id.

The standard set forth in Whitley and Hudson requires a
showing of “a much higher standard of fault than deliberate
indifference.”

County of Sacramento v. Lewis, 523 U.S. 833,

852 (1998).

See also Porter v. Osborn, 546 F.3d 1131, 1138 (9th

Cir. 2008).

“[L]iability should turn on ‘whether force was

applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing
harm.’”
320-21).

Lewis, 523 U.S. at 853 (quoting Whitley, 475 U.S. at
Nevertheless, unless the evidence, viewed in the light

13 - OPINION AND ORDER

most favorable to the plaintiff, will support a reliable
inference of wantonness in the infliction of pain, the case
should not go to the jury.
2.

Whitley, 475 U.S. at 322.

Analysis

The Ninth Circuit’s decision in Marquez v. Gutierrez,
322 F.3d 689 (9th Cir. 2003), provides a helpful foundation to
analyze the pending Motion.

In Marquez the plaintiff was a

bystander during an assault on another inmate when he was shot by
a corrections officer stationed in a guard tower located some 360
feet from the disturbance.

The plaintiff was seriously injured

and alleged the corrections officer violated the plaintiff’s
Eighth Amendment right to be protected from the use of excessive
force.

The plaintiff contended the defendant could not have

reasonably believed his decision to shoot the plaintiff was
lawful when there was a factual dispute as to the plaintiff’s
involvement in the incident.

The defendant, however, asserted he

relied on the prison’s use-of-force policy, which allowed use of
force if bodily injury was occurring.

Thus, the defendant

contended the disputed facts about who was actually kicking the
other inmate was immaterial.

The Ninth Circuit noted even if

there was a constitutional violation of the plaintiff’s rights,
the defendant would still be entitled to qualified immunity “if a
reasonable officer could have believed his conduct was lawful.”
322 F.3d at 692.

The court emphasized qualified immunity is a

separate inquiry from whether prison officials acted
unconstitutionally, and a claim of qualified immunity is not
14 - OPINION AND ORDER

defeated even if there is a triable issue of fact as to whether
the defendant’s decision to shoot the plaintiff was malicious.
Thus, the Ninth Circuit found the officer could be entitled to
qualified immunity even if he was mistaken in his perception of
what was happening.
A reasonable officer standing where [the
defendant] was standing . . . could perceive that
both [the plaintiff] and another inmate were
kicking [the victim] and threatening [the victim]
with serious injury or death, and that [the
victim] was not capable of protecting himself,
even if no kick was actually administered by [the
plaintiff]. The scenario may look different when
gauged against the “20/20 vision of hindsight,”
but we must look at the situation as a reasonable
officer in [the defendant’s] position could have
perceived it. [citations omitted.] In that light,
we believe that a reasonable officer could believe
that shooting one inmate in the leg to stop an
assault that could have seriously injured or
killed another inmate was a good faith effort to
restore order, and thus lawful.
322 F.3d at 693.
In Jeffers v. Gomez the Ninth Circuit also stated:
Where a prison security measure is undertaken
ostensibly for the protection of prison officials
and the inmate population, force is deemed
legitimate as long as it applied in a good faith
effort to maintain or restore discipline and not
maliciously and sadistically for the very purpose
of causing harm.
267 F.3d 895, 910 (9th Cir. 2001)(citing Whitley v. Albers , 475
U.S. at 321).
Accordingly, Defendant’s mental state is central to the
application of qualified immunity in the context of an Eighth
Amendment violation because it “is an element of the alleged
constitutional violation.”
15 - OPINION AND ORDER

Jeffers, 267 F.3d at 911.

Thus, to

overcome qualified immunity, Wilson “must put forward specific,
nonconclusory factual allegations that establish improper motive
in causing cognizable injury.”

Id.

Defendant, however, would

still be entitled to qualified immunity if a reasonable officer
in Defendant’s position would have thought the use of force was a
good-faith effort to restore discipline.

Id. at 692-93.

As noted, it is undisputed that Withers and Hayes
assaulted Sexton, and Wilson points to discrepancies in
Defendant’s statements regarding the incident.

It is undisputed,

however, the Defendant testified he observed from his seated
position in the tower what appeared to be two inmates kicking the
chain-link fence in the yard, and when he stood up he could see
the two inmates standing shoulder-to-shoulder and kicking another
inmate who was on the ground.

Defendant then stepped out of the

tower with his rifle and observed the altercation through his
scope.

With the aid of the scope he could see the victim against

the fence on the ground being repeatedly kicked or stomped by the
other two inmates.

The victim appeared to be unconscious and was

not defending himself.

Defendant described the attack as “the

most violent, vicious attack [he] had ever witnessed.”
It is also undisputed that other staff shouted “stop
fighting,” but Withers and Hays continued their assault on
Sexton.

Finally, it is undisputed that the altercation was

ongoing at the time Defendant shot Withers.
As noted, ODOC policy allows the use of lethal force to
prevent imminent serious bodily injury or death or to prevent or
16 - OPINION AND ORDER

to stop a riot or other group disturbance by inmates when there
is reason to believe an inmate poses a threat of imminent serious
bodily injury or death to another person.

It is undisputed that

Defendant was familiar with these regulations.

ODOC reviewed

Defendant’s conduct and determined the force used was in
compliance with ODOC’s use-of-force policy, and all three yard
officers who witnessed the fight testified the force used by
Defendant was justified.

A Grand Jury also determined

Defendant’s use of force was justified.
Of particular significance, it is undisputed that
Withers and another inmate were assaulting Sexton, he was on the
ground and was being kicked and/or stomped repeatedly, and he did
not appear to be defending himself.

Viewing all of the evidence

in the light most favorable to the Estate, the Court notes none
of the factual disputes on which the Estate relies create a jury
question as to whether Defendant acted “maliciously or
sadistically for the very purpose of causing harm” to Withers.
To the contrary, the Court concludes on this record that Wilson,
as Personal Representative of the Estate, has not shown that a
reasonable officer in Defendant’s position could believe that
shooting an inmate who appeared to be causing serious bodily
injury to another who was on the ground and appeared to be
unconscious was not a good-faith effort to maintain and/or to
restore discipline.
Accordingly, the Court concludes there is not a genuine
dispute of material fact as to this issue, and, therefore,
17 - OPINION AND ORDER

Defendant is entitled to qualified immunity as to the First Claim
asserted by Wilson as the Personal Representative of the Estate
of Jayson Withers for use of excessive force in violation of
Wither’s Eighth Amendment rights.
C.

Wilson’s Fourteenth Amendment Claim
Defendant also contends he is entitled to qualified

immunity on the Second Claim in which Wilson asserts individually
that Defendant violated Wilson’s substantive due-process rights
under the Fourteenth Amendment as Jayson Withers’s mother.

Here

Defendant argues it is not clearly established that the “purposeto-harm” standard on which Wilson relies applies to a substantive
due-process claim in a prison-shooting case.

Even if that

standard was clearly established, Defendant maintains there is
not any genuine dispute of material fact as to whether Defendant
acted with a purpose to harm.
According to Wilson, however, Defendant’s conduct in
killing Withers was also “malicious” and “shocks the conscience.”
As a result, Wilson argues Defendant may be sued for his conduct
that allegedly violated her Fourteenth Amendment rights as a
parent.
1.

The Law - Fourteenth Amendment

Parents may assert a Fourteenth Amendment substantive
due-process claim if they are deprived of their liberty interest
in the companionship and society of their child through official
misconduct.

Lemire v. California Dep’t of Corrections and

Rehabilitation, 726 F.3d 1062, 1075 (9th Cir. 2013).
18 - OPINION AND ORDER

See also

Zion v. Cty. of Orange, 874 F.3d 1072, 1076-77 (9th Cir. 2017).
“[O]nly official conduct that ‘shocks the conscience’ is
cognizable as a due process violation.”

Porter v. Osborn, 546

F.3d 1131, 1137 (9th Cir 2008)(quoting Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998)).
Official conduct shocks the conscience if it occurs
with “deliberate indifference” or with a “purpose to harm . . .
unrelated to legitimate law-enforcement objectives.”
F.3d at 1137.

Porter, 546

See also Zion, 874 F.3d at 1077 (citing Porter,

546 F.3d at 1133).

The standard of deliberate indifference is

applicable “only when actual deliberation is practical.”
874 F.3d at 1077.

Zion,

See also Wilkinson v. Torres, 610 F.3d 546,

554 (9th Cir. 2010); Cty. of Sacramento v. Lewis, 523 U.S. 883,
1719 (1998).

“[I]n circumstances where an officer cannot

practically deliberate, such as where ‘a law enforcement officer
makes a snap judgment because of an escalating situation, his
conduct may only be found to shock the conscience if he acts with
a purpose to harm unrelated to legitimate law enforcement
objectives.’”

A.D. v. California Highway Patrol, 712 F.3d 446,

453 (9th Cir. 2013)(citing Wilkinson v. Torres, 610 F.3d 546, 554
(9th Cir. 2010)).
The “purpose to harm” standard of culpability requires
proof of “the intent to inflict force beyond that which is
required by a legitimate law enforcement objective.”

Porter, 726

F.3d at 1140.
Thus, an officer is entitled to qualified immunity in
19 - OPINION AND ORDER

the context of a Fourteenth Amendment claim when either
(1) the plaintiff has not alleged or shown facts that would
constitute a constitutional violation or (2) the plaintiff has
shown such a violation was not clearly established at the time of
the defendant’s alleged misconduct.

Pearson v. Callahan, 555

U.S. 223, 232 (2009).
2.

Analysis

In Lewis the Court concluded a high-speed chase by
police that ended in the death of a motorcyclist did not meet the
shocks-the-conscience test because the police did not have the
intent to harm the motorcyclist.

The Court noted a higher

standard of fault is required for officer liability when the
officer must make a decision “in haste, under pressure, and
frequently without the luxury of a second chance” such as during
prison riots.

The Court stated:
In those circumstances, liability should turn on
“whether force was applied in a good faith effort
to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing
harm.” (quoting Whitley v. Albers, 475 U.S. at
320-21).

Lewis, 523 U.S. at 853.
It is clearly established that a police officer who
acts under circumstances in which “actual deliberation is [not]
practical” violates an individual’s Fourteenth Amendment dueprocess rights if the officer acts with a “purpose to cause harm
unrelated to the legitimate object” of law-enforcement objectives
even if he acts in the defense of others.

A.D., 712 F.3d at 454.

See also Moreland v. Las Vegas Metropolitan Police Dep't, 159
20 - OPINION AND ORDER

F.3d 365, 372 (9th Cir. 1998).
For the same reasons the Court concluded Wilson’s
Eighth Amendment claim cannot proceed, the Court concludes there
are not any plausible facts on this record that create a jury
questions as to whether Defendant acted with any purpose other
than to stop the assault on the victim or that the force applied
by Defendant was a good-faith effort to restore discipline.
Accordingly, the Court concludes as a matter of law that
Defendant is entitled to qualified immunity on Wilson’s
Fourteenth Amendment claim.
D.

The Estate's State-Law Claims
Finally, Wilson, on behalf of the Estate of Withers,

asserts claims under Oregon state law for battery and wrongful
death.

The Court acquired supplemental jurisdiction over these

claims based on the Court’s original jurisdiction over the § 1983
claims.

See 28 U.S.C. § 1367.
Defendant contends he is entitled to summary judgment

on the state-law claims because Defendant was authorized to use
lethal force to prevent the assault on the victim.

Defendant

contends it is undisputed that he shot Withers while Withers was
committing a violent assault on Sexton and that Defendant’s
action was taken to prevent that harm.

In addition, Defendant

asserts there is not any evidence that he had the intent to
violate Withers’s rights.

In the alternative, Defendant argues

if the Court dismisses the federal claims, the Court no longer
has supplemental jurisdiction as to the state-law claims, and,
21 - OPINION AND ORDER

therefore, the Court should dismiss those state-law claims for
lack of jurisdiction.
Wilson’s only response to Defendant’s arguments is that “all
of the facts are not evolved or developed enough at this stage to
make any determination whether [Defendant] acted negligently or
whether he is even entitled to any defenses.”

A.

Standard

Oregon courts have defined “battery” as an intentional tort
that “is a ‘voluntary act that is intended to cause the resulting
harmful or offensive contact.’”

Ballard v. City of Albany, 221

Or. App. 630, 640–41 (2008)(quoting Walthers v. Gossett, 148 Or.
App. 548, 552 (1997)).

The Oregon Court of Appeals has held when

the “physical violence exerted by the officers against [the]
plaintiff was no more than necessary to accomplish the legitimate
purpose of fulfilling their duty,” the force was reasonable and
the officers did not commit assault or battery.

Gigler v. City

of Klamath Falls, 21 Or. App. 753, 763 (1975).

See also Evans v.

Multnomah Cty., No. 07-CV-1532-BR, 2009 WL 1011580, at *8 (D. Or.
Apr. 15, 2009), aff'd in part, rev'd in part and remanded, 492 F.
App'x 756 (9th Cir. 2012).
B.

Analysis

As noted, it is undisputed that Withers was assaulting
Sexton, that Sexton was on the ground and appeared to be
unconscious, and, despite warnings from other officers to stop,
Withers continued to kick and/or to stomp Sexton.
22 - OPINION AND ORDER

Although ODOC regulations authorize the use of lethal force
to prevent injury to another, the Estate’s state-law claims only
require a showing that the physical force Defendant used in
shooting Withers was “more than necessary to accomplish the
legitimate purpose of fulfilling [his] duty.”
Applying this standard to the evidence viewed in the light
most favorable to the Estate, the Court concludes on this record
that there are genuine disputes of material fact as to whether
the physical force Defendant used was "more than necessary to
accomplish the legitimate purpose of fulfilling" his duty.
Accordingly, the Court denies Defendant’s Motion for Summary
Judgment as to the Estate's state-law claims.
II.

Motions to Strike
Wilson moves to strike the testimony of Eugene Atherton and

Rod Englert that Defendant submitted in support of Defendant’s
Motion for Summary Judgment.
Defendant, in turn, moves to strike portions of the
testimony by Jeremy Bauer that Wilson submitted in opposition to
Defendant’s Motion for Summary Judgment.

Each side contends the

evidence submitted by the other is inadmissable under the
standards set out in Daubert v. Merrell Down Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
The Court, however, did not find it necessary to consider
these Declarations in resolving Defendant’s Motion for Summary
Judgment, accordingly, the Court denies as moot each parties’
respective Motion to Strike these Declarations.
23 - OPINION AND ORDER

III. Supplemental Jurisdiction Over the Estate’s State-Law Claims
As noted, Defendant contends in the event the Court
dismisses the federal claims, the Court should decline to
continue to exercise supplemental jurisdiction over the state-law
claims for battery and wrongful death.

In her response Wilson

does not directly address this issue.
A.

Standard
The exercise of supplemental jurisdiction over the

remaining state-law claims is committed to the discretion of the
district court.

See Foster v. Wilson, 504 F.3d 1046, 1051–52

(9th Cir. 2007)(“The decision whether to continue to exercise
supplemental jurisdiction over state law claims after all federal
claims have been dismissed lies within the district court's
discretion.”)(citing 28 U.S.C. § 1367(c)(3); Fang v. United
States, 140 F.3d 1238, 1243–44 (9th Cir. 1998)).
The Ninth Circuit has held district courts generally
should decline to exercise supplemental jurisdiction over statelaw claims after the federal claims have been dismissed before
trial.

See, e.g., Schultz v. Sundberg, 759 F.2d 714, 718 (9th

Cir. 1985)(“Generally, dismissal of federal claims before trial
dictates that the pendent state claims should also be
dismissed.”); Souch v. Howard, 27 F. App’x 793, 795 (9th Cir.
2001)(“When all federal claims have been dismissed before trial,
the interests promoted by supplemental jurisdiction are no longer
present, and a court should decline to exercise jurisdiction over
state-law claims.”).
24 - OPINION AND ORDER

In Souch v. Howard the plaintiff-inmate brought a
§ 1983 action alleging the defendants violated his Eighth
Amendment rights by failing to treat his medical condition.

He

also brought a state-law claim against the defendants for
improperly charging him for his medical visits under a statute
enacted after he was incarcerated.

The district court granted

summary judgment in favor of the defendants on the federal claim.
The district court, however, held it still had jurisdiction over
the state-law claim in spite of its dismissal of the federal
claim, and then the district court found in favor of the
plaintiff on the state-law claim.

In deciding the appeal of the

judgment in the plaintiff’s favor on the state-law claim, the
Ninth Circuit concluded the district court abused its discretion
by exercising jurisdiction over the state-law claim after it had
dismissed the federal claim, noting the state-law claim was
unrelated to the federal claim.
Federal courts have supplemental jurisdiction to
consider state-law claims when they are “so related” to
the federal claims that they “form part of the same
case or controversy.” 28 U.S.C. § 1367(a). The
exercise of supplemental jurisdiction is designed to
promote “judicial economy, convenience, fairness, and
comity.” Carnegie–Mellon University v. Cohill, 484
U.S. 343, 350 n. 7 (1988). When all federal claims
have been dismissed before trial, the interests
promoted by supplemental jurisdiction are no longer
present, and a court should decline to exercise
jurisdiction over state-law claims. 28 U.S.C.
§ 1367(c); Carnegie–Mellon, 484 U.S. at 350 n.7.
Souch v. Howard, 27 F. App'x 793, 794–95 (9th Cir. 2001).
As noted, the Court has not had the benefit of Wilson’s
analysis of this jurisdictional question.
25 - OPINION AND ORDER

Accordingly, and in

light of Schultz and Souch, the Court DIRECTS the parties to file
simultaneous, supplemental briefs (not to exceed five pages) no
later than February 16, 2018, addressing (1) whether the Court
should exercise its discretion to retain supplemental
jurisdiction and to resolve the state-law claims or whether it
should decline to do so and (2) whether the fact that only statelaw claims remain will affect the parties’ recent statements as
to the timing of their availability for trial or the place of
trial.

CONCLUSION
For these reasons the Court GRANTS in part and DENIES in
part Defendant’s Motion (#47) for Summary Judgment.

The Court

GRANTS Defendant’s Motion as to the federal claims alleged in
Claims One and Two and DISMISSES those claims with prejudice.
The Court DENIES Defendant’s Motion as to the Estate's state-law
claims as alleged in Claims Three and Four.
The Court DIRECTS the parties to file no later than
February 16, 2018, simultaneous, supplemental briefs (not to
exceed five pages) addressing whether (1) the Court should
exercise its discretion to retain supplemental jurisdiction over
the state-law claims or whether it should decline to do so and
(2) whether the fact that only state-law claims remain will
affect the parties’ recent statements as to the timing of their
availability for trial or the place of trial.
The Court also DENIES as moot Defendant’s Motion (#67) to
26 - OPINION AND ORDER

Strike and Wilson’s Motion (#57) to Strike.
IT IS SO ORDERED.
DATED this 2nd day of February, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

27 - OPINION AND ORDER