Stanford et al v. Washington County et al
Filing
127
OPINION AND ORDER: Defendants' motion for summary judgment (Dkt. # 71 ) is GRANTED in part and DENIED in part. Plaintiffs First and Third Claims for Relief are DISMISSED. See Opinion and Order for more details. Signed on 8/9/2018 by Magistrate Judge John Jelderks. (jtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DARIAN STANFORD, as Personal
Representative of the ESTATE OF AIMIE
ZDRANTAN, and A.B., by and through her
Guardian, Stelian Zdrantan,
Plaintiffs,
v.
WASHINGTON COUNTY, a municipal
corporation of the State of Oregon;
WASHINGTON COUNTY COMMUNITY
CORRECTIONS CENTER, a municipal
corporation of the State of Oregon; STEVE
BERGER, an individual; KARLEIGH
MOLLAHAN, an individual; PETER DAN,
an individual; and DOREEN DREYER,
an individual,
Defendants.
____________________________________
Shenoa L. Payne
Kirc T. Emerson
Richardson Wright LLP
805 SW Broadway, Suite 470
Portland, OR 97205
John M. Coletti , III
Paulson Coletti
1022 NW Marshall Street, Unit 450
Portland, OR 97209
Attorneys for Plaintiffs
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) Civil No.:3:16-cv-01718-JE
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) OPINION AND ORDER
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Christopher A. Gilmore
Kimberly Stuart
Office of Washington County Counsel
155 N. First Ave.
Suite 340, MS 24
Hillsboro, OR 97124
Gerald L. Warren
Law Office of Gerald L. Warren and Associates
901 Capitol Street NE
Salem, OR 97301
Attorneys for Defendants
JELDERKS, Magistrate Judge:
Plaintiff Darian Stanford, as Personal Representative of the Estate of Aimie Zdrantan;
and Plaintiff A.B., by and through her guardian ad litem, Stelian Zdrantan, bring this action
against Defendants Washington County (“the County”), Washington County Community
Corrections Center (“Center”), and County employees Steve Berger, Karleigh Mollahan, Danita
Gorman, Peter Dan and Doreen Dryer. Plaintiffs allege wrongful death and negligent infliction
of emotional distress claims against Defendants under state law and also assert a claim under 42
U.S.C. §1983 for alleged Fourteenth Amendment substantive due process rights violations.
Pending before the Court is Defendants’ motion for summary judgment.
For the reasons set forth below, Defendants’ motion is granted with respect to Plaintiff’s
Due Process Claim and state law claim for Negligent Infliction of Emotional Distress. The Court
retains jurisdiction of Plaintiff’s supplemental state law claim for wrongful death and denies
Defendants’ motion for summary judgment as to that claim.
Background
This case revolves around the death of Aimee Zdrantan, who was murdered in her
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apartment by her long-time boyfriend Eric Petersen. At the time of the murder, Petersen was a
resident at the Center, serving an alternative sanction sentence for a probation violation. Plaintiff
A.B. is the now five-year old child of Ms. Zdrantan and Petersen and was in the apartment at the
time of the murder.
I. The Washington County Community Corrections Center
Washington County maintains the Washington County Community Corrections Center
(Center) to provide eligible individuals who are serving criminal sentences transitional services
and opportunities through participation in a minimum security residential work-release center.
The Center thus serves as an alternative to full-time confinement. Residents of the Center are
allowed the opportunity to seek treatment, establish housing for after their release, and seek
employment and other community connections in order to facilitate a successful re-entry into the
community. Residents are allowed to temporarily leave the Center in order to pursue these
resources.
In 2014 the Center served 2,169 residents. (Berger Decl. p. 2). In that year, 84 percent of
residents successfully participated through the end of their sentences in the resources offered by
the Center. (Id.). New crimes of any kind by Center residents have historically been less than one
percent with the commission of new crimes of violence at a fraction of one percent. (Id.).
An individual’s eligibility to serve his sentence at the Center can only be considered if
the sentencing court first orders that the offender is eligible for alternative sanctions. ORS
137.752. Felony sentences of more than 12 months for a violent crime or sexual offense
disqualify the individual from candidacy for the Center. ORS 137.124, 137.752. Otherwise, the
sentencing judge has discretion to determine if alternative sanctions are appropriate under the
circumstances for the particular offender facing sentencing. A judge’s order authorizing
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alternative sanctions allows the offender to participate in Center programs unless he is otherwise
disqualified.
After a judgment is entered authorizing alternative sanctions, the inmate is then screened
for transfer from jail to the Center. The process and standards include the following: 1) an
inmate in the Washington County Jail must request a transfer to the Center and pay a fee; 2)
inmates “should be those that will benefit from the [Center] program opportunities and not
present a risk to the public;” 3) the inmate must display and have a history of good behavior and
have a low or medium classification level. (Frohnert Decl., Ex. 1, Jail Policy J-6-10).
In addition to Jail Policy, the Center has its own criteria for acceptance. Subjective
criteria include that the inmate agree to adhere to Center program policy, rules and regulations;
to cooperate with staff and clients; that the inmate have the mental and emotional capacity to
participate in the program; and that the inmate “be in touch with reality and in control of violent
behavior.” (Wright Decl., Ex. 1). Every inmate entering the Center must sign a Conditions and
Agreement form and comply with the eligibility criteria. Misconduct or misbehavior at the
Center can result in an automatic return to jail.
Once an inmate is accepted to the Center and intake is complete, he or she attends an
orientation and signs the Conditions and Agreement form. Following orientation, each resident is
assigned a residential counselor who, within 48 hours of intake, meets with the resident to assess
needs and develop a case plan if necessary. (Wright Decl. Exs. 4, 5). No formal case plan is
required if a resident will be in the Center for less than 30 days but residents still receive
directives regarding supervision requirements, treatment, and attendance in other activities
through the Center. (Wright Decl. Ex. 5). During this initial meeting, the counselor is required to
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identify any victims, no-contact orders, restraining orders or protective orders. (Wright Decl. Ex.
5, p. 9). The Center’s policy directs that:
Per protocol, the counselor is responsible to contact the victim . . . of record and
inform them that the resident is currently in custody and will have opportunities to
be out in the community. . . The counselor should document that this contact has
taken place.
(Wright Decl. Ex. 5, p. 9)
Residential counselors are trained to attempt to locate the correct victim contact
information in order to attempt to contact the victim but that “the reality is that doesn’t always
happen.” (Gilmore Decl. Ex. 8, Gorman Dep. p. 18). Counselors do not reach every victim they
attempt to contact but failure to contact a victim does not preclude a resident from participating
in Center programs, including temporary release into the community. (Id. pp. 21-22). A resident
who violates a no-contact order is immediately returned to jail. (Wright Decl. Ex. 5, p. 9).
After a seven day blackout period, residents in good standing may be given a pass by
Center counselors so that they may engage in community based programs. (Wright Decl. Ex. 6).
There are two categories of passes: social passes and mini-passes. Mini-passes are described in
the Residential Counselor’s Manual as
generally for use on short passes of four hours or less. Mini-passes are used for
the purpose of attending treatment, legal appointments, medical appointments, job
interviews, self-help support groups, and personal business at counselor’s
discretion if eligible based on custody status.
(Wright Decl. Ex. 5, p. 26). Prior to the issuance of a mini-pass for the purpose of seeking
employment, the resident must complete an additional list of requirements. (Gilmore Decl. Ex. 8,
Gorman Depo. Ex. 4, p. 29). It is the policy of the Center that all qualified unemployed residents
pursue gainful employment prior to their re-entry into the community and be afforded passes into
the community to do so. However, counselors have discretion to authorize passes based on the
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resident’s “program compliance and appropriate behavior while a resident of the Center.”
(Wright Decl. Exs. 5, 6).
If a resident is an hour late returning from an approved pass, Center policy directs that
staff attempt to locate the resident by making contact with family, significant others, employers
and/or the approved visit site. Staff are also directed to notify victims. (Wright Decl. Ex. 8, p. 3).
Once a resident is three hours late, the Unauthorized Departure (UAD) process is initiated and
staff are directed to notify the resident’s probation officer, jail booking, and non-emergency
dispatch. Staff are also required to complete a UAD procedure worksheet and an Escape/UAD
Incident Report. Supervisory staff are to review the completed worksheet at the time of the UAD
“to ensure all protocol is handled and appropriate phone calls are made if needed.” (Id.).
In the event Center staff become aware a resident has entered an unauthorized area either
inside or outside the Center, the infraction is treated as a Major Violation. (Payne Decl. Ex. 5, p.
41). A Major Violation is an internal Center disciplinary measure that can result in sanctions
ranging from lengths of time on restriction to return to jail. (Wright Decl. Ex. 5, p. 15).
II. Petersen’s Transfer to the Center
On August 6, 2014, while walking with Ms. Zdrantan and A.B. in Hillsboro, Petersen
was arrested on an outstanding warrant for non-compliance with his probation conditions.
Although there was a no-contact order in place, Petersen and Ms. Zdrantan were living together
at the time and Petersen was caring for A.B. while Ms. Zdrantan worked.
A probation violation hearing was held on August 18, 2014 in Washington County
Circuit Court. Ms. Zdrantan attended the hearing. At the conclusion of the hearing, Judge
Letourneau indicated in court that he would sentence Petersen to “60 days, credit for time served,
alternative sanctions. Hopefully you can work at the center and, you know, get a positive start
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before you hit the – hit pavement again.” (Gilmore Decl. Ex. 6, p. 9). A Judgment was
subsequently entered authorizing alternative sanctions.
Petersen was then returned to jail and applied for transfer to the Center. On August 20,
2018, Petersen was transferred to the Center. He met with Defendant Danita Gorman, his
assigned residential counselor, on the following day. According to Gorman, there was nothing in
Petersen’s demeanor, behavior or responses to her inquiries that gave her any concerns about his
ability to participate in Center programs. (Gorman Decl. p. 2). Gorman asked Petersen if he had
contact information for the victims listed in his file and he indicated that he did not. (Id.).
Gorman subsequently searched the AS400 “Chronos” log and found that the most recent phone
number for Ms. Zdrantan had been disconnected. Jail records also did not have a number. After
her meeting with Petersen, Gorman sent an email to his probation officer seeking valid contact
information. (Gorman Depo. pp. 24, 27-28). She did not receive a response before Petersen was
issued a mini-pass on August 28, 2018. (Id. at p. 25).
III. The Events of August 28, 2014
On August 28, 2014, after the seven-day blackout period, Petersen received authorization
to leave the Center to seek employment through Labor Ready. His first pass was at 5:37am
which was when Labor Ready wanted potential laborers to appear. When Petersen arrived at
Labor Ready early that morning, he was not able to provide sufficient forms of identification and
the staff were not able to locate him in the system due to confusion regarding the spelling of his
name. (Alex Depo. pp. 34-37). He was sent back to the Center and checked in at 8:25am. (Dan
Depo. p. 56). Labor Ready later contacted the Center and asked that Petersen return to Labor
Ready as they had located him in the system and needed him to provide updated information and
his identification. (Alex Depo. pp. 17, 22). Petersen was issued a mini-pass at 9:45am in order to
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go to Labor Ready. The mini-pass required him to return to the Center by 12pm.
After arriving at Labor Ready and waiting for staff to assist him, Petersen was told that
he did not have the proper forms of identification with him and that he was to return to the
Center. He was told that he had about 15 minutes to do so. (Id. at p. 23). Labor Ready is located
three or four blocks away from the Center. Petersen left Labor Ready at approximately 10:30am.
(Id. at pp. 25-26).
Instead of returning to the Center, Petersen headed in the direction of Ms. Zdrantan’s
apartment about two miles away. On the way he encountered Ms. Zdrantan and A.B. walking
along the side of the Tualatin Valley Highway. During their encounter, they had and argument.
Ms. Zdrantan called her mother, Alice Alinger, from her cell phone and part of the argument was
recorded on Ms. Alinger’s voicemail around 10:41 a.m. (Petersen Decl. ¶¶ 10-14; Petersen Depo.
p. 17; Gilmore Decl. Ex. 11, Nos. 24, 25). Ms. Zdrantan told Petersen to leave or she would call
his probation officer. Ms. Zdrantan and Petersen parted. Petersen first walked in the direction of
the Center and then doubled back to walk to the apartment he had shared with Ms. Zdrantan to
collect his belongings. (Petersen Decl. ¶¶ 12-13).
At the apartment, Petersen encountered Leticia Godinez, the apartment manager. He
asked if Ms. Zdrantan was home and when Godinez responded that she didn’t know he left to
check. (Godinez Depo. pp. 48-50). When he returned he asked Godinez if she would open the
apartment for him so he could retrieve his belongings. (Id. p. 50-51). Godinez refused. Petersen
continued to wait in the apartment complex office and used Godinez’s cell phone and office
phone multiple times in an attempt to contact Ms. Zdrantan. (Id. at pp. 53-56).
At approximately 11:53am, Petersen used Godinez’s office phone to call the Center. He
reported to Center employee Peter Dan that he was going to be late for his noon return deadline;
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that he was near the Clackamas Town Center and that he didn’t want to go back to jail. (Dan
Depo. pp. 74-77; 84). Dan told him that if he was under three hours late he would receive a
Major Violation but that he would not automatically be returned to jail. (Id. at p. 84). According
to his deposition testimony, Dan was “trying to minimize, in [Petersen’s] mind, how much
trouble he’s in, so to increase the chances that he would actually come back.” (Id. at pp. 76-77).
Dan’s general sense was that Petersen was not going to return to the Center. (Id.). Dan
documented the call and when, his co-worker, Doreen Dryer, returned from lunch at 12:30pm,
they initiated the Unauthorized Departure process. (Dan Depo. pp. 54, 87-88; Dryer Depo. pp.
41-43).
Petersen’s file was retrieved from Gorman and Dan informed Dryer that there were
victims to be contacted. Dan assumed Dryer’s front counter duties so that she could proceed with
the UAD process. (Id.). At some point after 1pm, Dryer attempted to call the numbers listed in
Petersen’s file for Ms. Zdrantan but was told by Gorman that she had already tried the number
and that it was not valid. (Dryer Depo. at pp. 46-47).
At, or shortly after, noon and after he had called the Center, Petersen saw Ms. Zdrantan
returning to the apartment with A.B. (Petersen Decl. Ex. 2; Godinez Depo. p. 69-70). Ms.
Zdrantan came to the apartment manager’s office where Petersen was waiting. (Petersen Decl.
¶17; Godinez Depo. pp. 77) They argued briefly and then went together up to the second floor
apartment. (Petersen Decl. ¶19; Godinez Depo. pp. 77-78). Approximately ten to fifteen minutes
after Petersen and Ms. Zdrantan left Godinez’s office, and no later than 1:10pm, Ms. Zdrantan’s
neighbor, Faith Molina, came down to Godinez’s office to report that she had heard banging,
fighting and screaming through the wall her apartment shared with Ms. Zdrantan’s apartment.
(Godinez Depo. p. 79).
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According to Petersen, when his argument with Ms. Zdrantan escalated to physical
violence, Ms. Zdrantan locked A.B. in her bedroom. (Petersen Decl. ¶ 20). Petersen testified that
Ms. Zdrantan was dead within ten to fifteen minutes after they had entered the apartment.
At approximately 12:50pm, Petersen’s neighbor and friend, Gabriel Guzman, ran into
Petersen at the apartments. According to Guzman, he did not remember Petersen having any
blood on him. Guzman testified that Petersen was smoking a cigarette and walked away from
Guzman, ignoring him. (Guzman Depo. pp. 21, 41).
Starting at approximately 1:07pm a series of text messages were exchanged between Ms.
Godinez and Ms. Zdrantan’s cell phone. (Godinez Depo. 80-83). According to Petersen, he was
using Ms. Zdrantan’s phone to send the text messages. (Petersen Decl. ¶¶1-2).
Between 2pm and 3pm, Petersen brought A.B. to Molina’s apartment. The following day
Ms. Zdrantan’s father, Stelian Zdrantan, discovered Ms. Zdrantan’s body when he went to the
apartment to pick up A.B. from Molina’s home. Petersen was arrested in Washington two days
later and was ultimately convicted of Aggravated Murder and sentenced in Washington County
Circuit Court to true life without the possibility of parole.
Claims
The First Claim for Relief, brought on behalf of the Estate, alleges a federal substantive
due process claim under 42 U.S.C. §1983. The claim is premised upon allegations of “statecreated danger;” the County’s alleged customs and practices regarding the acceptance, release
and monitoring of Center residents; and the County’s failure to train its employees so as to
prevent harm by Center residents. The claim is brought against the individual Washington
County employees and against Washington County and the Center on a Monell theory of
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liability.
The Second Claim for Relief, brought on behalf of the Estate, asserts a claim for
wrongful death under state law against all Defendants. Plaintiffs allege that Defendants failed to
exercise reasonable care by releasing Petersen and failing to notify Ms. Zdrantan or her family
that Petersen was on work release and became unaccounted for.
The Third Claim for Relief, brought on behalf of A.B., asserts a claim for Negligent
Infliction of Emotional Distress. Plaintiffs allege that Defendants’ negligent conduct resulted in
the murder of Ms. Zdrantan; that her minor child, A.B., witnessed and perceived the serious
physical injuries and death and that, as a result, A.B. suffered serious emotional distress.
Evidentiary Objections
Both parties submitted numerous evidentiary objections. I have carefully reviewed the
objections and concluded that many of the objections go to the weight and not the admissibility
of the evidence. In addition, several of the objections are not articulated with sufficient
specificity for me to determine the exact basis for the objection. I also conclude that, with few
exceptions, admitting or excluding the objected to evidence would not affect my ultimate
decision regarding summary judgment on Plaintiffs’ claims.
Therefore, for the purposes of the motion for summary judgment, Plaintiffs’ Objections
to the Declaration of Eric Petersen and to Paragraph 12 of the Declaration of Steve Berger are
overruled.
For the purposes of the motion for summary judgment, Defendants’ evidentiary
objections are overruled with the following exceptions: statements attributed to Bracken McKey
in Exhibit 24 to John Coletti’s Declaration; conclusions or opinions offered by Paige Light
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regarding what, if anything A.B. contemporaneously witnessed or perceived; the Proposed
Expert Declaration of Jeffrey Schwartz; and contents of the public record attached to the
Declaration of Detective LaMonica that do not constitute “factual findings” under FRE
803(8)(c). This evidence is excluded and will not be considered by the Court in deciding the
present motion.
Evaluating Motions for Summary Judgment
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue
exists regarding any material fact and the moving party is entitled to judgment as a matter of law.
The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325, 106 S.Ct. 2548 (1986). The moving party may discharge this burden by
showing that there is an absence of evidence to support the nonmoving party's case. Id. When the
moving party shows the absence of an issue of material fact, the nonmoving party must go
beyond the pleadings and show that there is a genuine issue for trial. Id.
The substantive law governing a claim or defense determines whether a fact is material.
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).
Reasonable doubts concerning the existence of a factual issue should be resolved against the
moving party. Id. at 630–31. The evidence of the nonmoving party is to be believed, and all
justifiable inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). No genuine issue for trial exists, however, where
the record as a whole could not lead the trier of fact to find for the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).
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Discussion
I. Plaintiff Estate’s Substantive Due Process Claim
Plaintiffs allege that Defendants acted with deliberate indifference and affirmatively
placed Ms. Zdrantan in a position of danger she would not otherwise have faced, “in an
unjustified intrusion on [her] personal safety in violation of her substantive due process rights
under the Fourteenth Amendment to the United States Constitution.” (Pl.’s Fourth Am.
Complaint at ¶ 46). Plaintiffs bring their claim pursuant to 42 U.S.C. §1983.
Plaintiffs allege that Defendants acted pursuant to an expressly adopted official policy or
longstanding practice or custom and that the acts of the individual defendants and the policies,
practices and customs of the County and the Center were the “moving force” that caused Ms.
Zdrantan’s death. (Id. ¶¶ 51-52, 55). Plaintiffs also allege that the training policies of the County
and Center were not adequate. The Fourth Amended Complaint asserts individual constitutional
claims against Defendants Dan, Gorman and Dryer; against the County and Center Defendants
under a Monell theory of liability and against individual Defendants Berger and Mollahan under
a supervisory theory of liability. The First Claim for Relief incorporates the factual paragraphs of
the Complaint and then alleges, without particularity, that the conduct of all Defendants violated
Ms. Zdrantan’s substantive due process rights.1
Defendants assert that summary judgment is appropriate on Plaintiffs’ constitutional
claim because the evidence is insufficient to support any constitutional violation under a statecreated danger theory; the evidence fails to demonstrate that any of the individual defendants
acted with deliberate indifference and; at a minimum, these defendants would be entitled to
qualified immunity.
1
Plaintiffs subsequently withdrew their §1983 claim against Ms. Dryer. (Pls.’ Response at p. 30, n. 8).
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A. State-Created Danger: Defendants Dan and Gorman
The Fourteenth Amendment's Due Process Clause states: “... nor shall any State deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV § 2.
This substantive due process right “forbids the government from depriving a person of life,
liberty, or property in such a way that ‘shocks the conscience’ or ‘interferes with the rights
implicit in the concept of ordered liberty.’” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th
Cir.1998) (quoting United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697
(1987) (internal citations omitted)).
42 U.S.C. § 1983 provides a cause of action against persons acting under color of state
law who have violated rights guaranteed by the U.S. Constitution or federal statutes. 42 U.S.C. §
1983; Wilder v. Virginia Hosp. Ass'n., 496 U.S. 498 (1990). To state a Section 1983 claim, a
plaintiff must allege facts “which show a deprivation of a right, privilege or immunity secured by
the Constitution or federal law by a person acting under color of state law.” Lopez v. Dep't of
Health Servs., 939 F.2d 881, 883 (9th Cir. 1991)(citations omitted). In DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998 (1995), the United States
Supreme Court held that, in general, the due process clause of the Fourteenth Amendment does
not create an affirmative duty on the part of the state to protect the life, liberty, or property of its
citizens against invasion by private actors. The Court concluded that “a State's failure to protect
an individual against private violence simply does not constitute a violation of the Due Process
Clause.” Id. at 197, 109 S. Ct. at 1004. Accordingly, the general rule is that officials cannot be
held liable under Section 1983 for an injury inflicted by a third party. L.W. v. Grubbs, 974 F.2d
119, 121 (9th Cir.1992)(“Grubbs I”).
One of the two recognized exceptions to this rule is when “[u]nder the state-created
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danger doctrine, a state actor can be held liable for failing to protect a person's interest in his
personal security or bodily integrity when the state actor affirmatively and with deliberate
indifference placed that person in danger.” Pauluk v. Savage, 836 F.3d 1117, 1122 (9th Cir.
2016). Plaintiffs acknowledge that their federal claim relies on this exception.
To benefit from the state-created danger exception, Plaintiffs must show: (1) “affirmative
conduct on the part of the state in placing the plaintiff in danger” and (2) “deliberate
indifference” by the state to a “known or obvious danger.” Patel v. Kent School District, 648
F.3d 965, 974 (2011) (internal quotation marks and citation omitted). Both requirements must be
satisfied for the exception to apply. Id.
As to the first requirement, a plaintiff must show that the affirmative conduct placed her
in a “worse position than that in which [s]he would have been had [the state] not acted at all.”
Johnson v. City of Seattle, 474 F.3d 634, 641 (9th Cir. 2007) (quoting DeShaney, 489 U.S. at
201, 109 S.Ct. 998). In addition, “the affirmative act must have exposed the plaintiff to ‘an
actual, particularized danger,’ and the resulting harm must have been foreseeable.” Pauluk, 836
F.3d at 1125 internal citations omitted).
As to the second element, the Ninth Circuit has held that deliberate indifference is a
stringent standard of fault that “requires a culpable mental state more than gross negligence. Id.
at 1124–25 (citing Patel, 648 F.3d at 974; L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 900 (9th
Cir.1996)). As explained in Grubbs II, the defendant must “recognize[ ] [an] unreasonable risk
and actually intend[ ] to expose the plaintiff to such risks without regard to the consequences to
the plaintiff.” Grubbs, 92 F.3d at 899 (internal quotation marks omitted). Put another way, the
defendant “knows that something is going to happen but ignores the risk and exposes [the
plaintiff] to it.” Id. at 900. Absent the requisite culpable mental state, there can be no
OPINION AND ORDER – 15
constitutional violation premised on state-created danger. Pauluk, 836 F.3d at 1132.
Plaintiffs assert that the affirmative acts taken by Defendant Gorman were accepting
Petersen into the Center; entering invalid contact information for Ms. Zdrantan and releasing
Petersen on a work pass. Plaintiffs assert that Defendant Dan’s affirmative act was that on the
morning of August 28, 2014, when Petersen called in to report he was in an unauthorized area,
Dan told him that if he was under three hours late he would receive a Major Violation but that he
would not automatically be returned to jail.
As an initial matter, I conclude that Plaintiffs have offered no evidence that Defendant
Gorman was involved in “accepting” Petersen into the Center. The evidence supports only the
conclusion that the screening that determines whether an inmate is eligible for transfer and is, in
fact, transferred to the Center occurred prior to Defendant Gorman’s contact with Petersen.
Defendant Gorman’s first contact with Mr. Petersen was the day after he transferred to the
Center.
I also conclude that the Court need not delve into a lengthy analysis of the remaining
alleged affirmative acts because Plaintiffs fail to establish a genuine issue of material fact as to
the element of deliberate indifference. As explained below, even viewing the facts in the light
most favorable to Plaintiffs, the record does not support their contention that Defendants acted
with deliberate indifference to any known or obvious dangers.
Plaintiffs argue that Defendant Gorman acted with deliberate indifference because she
was aware that unauthorized departures occurred frequently, that inmates were dangerous, that
Ms. Zdrantan had an active restraining order against Petersen and that Petersen had been
violating that restraining order by living with Ms. Zdrantan. The evidence demonstrates,
however, that Defendant Gorman knew that Petersen had been successful in the program before
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and nothing in his behavior, demeanor or responses during their meeting gave her any concern
about his ability to participate successfully in Center programs. (Gorman Decl. p. 2; Gorman
Depo. pp. 62-63). Petersen expressed his desires to find a job and reunite with his family. (Id.).
Plaintiffs argue that Defendant Gorman “remained willfully and intentionally ignorant of the
risks inmates posed to the community.” (Pls.’ Response at 38). Even viewing the evidence in a
light most favorable to Plaintiffs, the record does not support a conclusion that Defendant
Gorman recognized an “unreasonable risk” to Ms. Zdrantan and “actually intended to expose
[Ms. Zdrantan] to such risks without regard to the consequences.” Grubbs, 92 F.3d at 899.
Plaintiffs’ conclusory statements to the contrary cannot satisfy their burden to demonstrate a
genuine issue of material fact as whether Defendant Gorman acted with deliberate indifference.
Likewise, Defendant Dan’s conduct cannot be characterized as demonstrating the
requisite “culpable mental state.” Patel, 648 F.3d at 974. Plaintiffs allege that Defendant Dan
was aware that the Center released high-risk and dangerous offenders, that unauthorized
departures occurred frequently and that the Center had no way of knowing where residents were
while on a work pass. Plaintiffs also allege that Defendant Dan knew that it was important to
warn victims but that residents were routinely released without the Center having valid victim
contact information. (Pls’ Response at 38).
Plaintiffs contend that when Petersen called in to report he was in an unauthorized
location, Defendant Dan’s “conduct in telling Petersen he had a three-hour time line to commit
the murder then enhanced Ms. Zdrantan’s vulnerability and facilitated Petersen’s crime.” (Pls.’
Response at 33). Contrary to Plaintiffs’ assertions, the undisputed evidence reflects that
Defendant Dan’s conversation with Petersen was designed to encourage Petersen to return to the
Center, and that Defendant Dan initiated the UAD process before Center policy would have
OPINION AND ORDER – 17
required based on his belief that Petersen would, despite their conversation, not return to the
Center. Based on the record, no reasonable trier of fact could conclude that Defendant Dan’s
conduct was one of someone who “knows that something is going to happen but ignores the risk
and exposes [the plaintiff] to it.” Grubbs, 92 F.3d at 900. Plaintiffs raise no genuine issue of
material fact that Defendant Dan acted with deliberate indifference to the safety of Ms. Zdrantan.
Because Plaintiffs have failed to show that there is a genuine issue of material fact
regarding whether Defendants Gorman and Dan acted with deliberate indifference, they cannot
establish that the state-created danger exception applies. As a result, no reasonable fact finder
could conclude that Defendants’ conduct was responsible for a deprivation of Ms. Zdrantan’s
constitutional rights under the Fourteenth Amendment. Accordingly, Defendants motion for
summary judgment on Plaintiffs’ First Claim for Relief as to Defendants Gorman and Dan is
granted.
Having concluded that Plaintiffs have failed to produce evidence sufficient to establish
the existence of a constitutional violation, I need not reach the question of whether the individual
Defendants are entitled to qualified immunity. Mitchell v. Washington, 818 F.3d 436, 443 (9th
Cir. 2016)(In determining whether qualified immunity applies, courts “must determine whether:
(1) the facts adduced constitute the violation of a constitutional right; and (2) the constitutional
right was clearly established at the time of the alleged violation.”) . In any event, if the facts had
created a constitutional violation, the individual defendants would be shielded from liability by
qualified immunity.
B. Supervisory and Monell Liability
A plaintiff may state a claim under Section 1983 against a supervisor for constitutional
violations “if there exists either (1) his or her personal involvement in the constitutional
OPINION AND ORDER – 18
deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and
the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.2011) (internal
quotation marks and citation omitted).
Plaintiffs allege that Defendants Berger and Mollahan failed to train their employees and
ratified official policies that resulted in a violation of Ms. Zdrantan’s constitutional rights.
Neither the Complaint nor Plaintiffs’ Response to the Motion articulate with sufficient specificity
or evidentiary support what particular conduct by these Defendants supports a claim for
supervisory liability. In any event, my conclusion above that no reasonable trier of fact could
conclude that the actions of Gorman and Dan rose to the level of a constitutional violation is fatal
to Plaintiff’s supervisory liability claim. Id. (actions against supervisors under section 1983
require that a sufficient causal connection is present and the plaintiff was deprived under color of
law of a federally secured right (emphasis added)). Plaintiffs’ claim against Defendants Berger
and Mollahan thus fails as a matter of law.
In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978), the
Supreme Court held that a municipality may not be held liable for a Section 1983 violation under
a theory of respondeat superior for the actions of its subordinates. In order to establish municipal
liability, a plaintiff must show that a “policy or custom” led to the plaintiff's injury. Id. at 694, 98
S.Ct. 2018. A plaintiff must also demonstrate that the policy or custom of a municipality
“reflects deliberate indifference to the constitutional rights of its inhabitants.” City of Canton,
Ohio v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197 (1989).
Here, Plaintiffs allege that the County and Center Defendants’ official policies,
longstanding customs and practices, and failure to train its employees were the “moving force”
behind the violation of Ms. Zdrantan’s constitutional rights. However, Plaintiffs fail to provide
OPINION AND ORDER – 19
evidence that creates a genuine issue of material fact that the customs or policies they identify
were adhered to with deliberate indifference. Even under the objective standard for determining
whether a municipality is deliberately indifferent, a plaintiff must still establish that “the facts
available to [ ] policymakers put them on actual or constructive notice that the particular
omission is substantially certain to result in the violation of [ ] constitutional rights. . . .” City of
Canton, Ohio, 489 U.S. 378 at 396, 109 S.Ct. at 1208.
The evidence in the record before this Court reflects that the Center served over 2,000
individuals in 2014. (Berger Decl. p. 2). Plaintiffs cite to only five prior incidents in the last
twenty years of serious crimes committed by residents of the Center, four of which occurred
between 1994 and 2001. No incidents involving a Center resident using a release pass to commit
a crime in the community occurred in the decade prior to the incident at issue here. (See
generally, Plaintiffs’ Response at 10-11 and record citations therein). The evidence simply does
not support a conclusion that policymakers had actual or constructive notice that the policies at
issue were “substantially certain to result in the violation of [ ] constitutional rights.” Id. On the
record before this Court, no reasonable trier of fact could conclude that the policies that
facilitated the transfer of Petersen to the Center and his subsequent unsupervised release into the
community on a work pass were effectuated with deliberate indifference to Ms. Zdrantan’s
constitutional rights or were the moving force behind her injuries.
Furthermore, the absence of an underlying constitutional violation defeats Plaintiffs’
claims against the County and Center Defendants for failure to train. See Monell, 436 U.S. at
690, 98 S. Ct. 2036 (“touchstone of the § 1983 action against a government body is an allegation
that official policy [or custom] is responsible for a deprivation of rights protected by the
Constitution . . . .”) (emphasis added); City of Canton, Ohio, 489 U.S. at 387, 109 S. Ct. at 1204
OPINION AND ORDER – 20
(1989)(constitutional wrong must be caused by the failure to train). As discussed above, the
conduct of the individual employee Defendants did not cause a constitutional violation and thus
liability may not attach to the County and Center Defendants based on a failure to train those
employees.
Much like the circumstances faced by numerous courts around the country, Ms.
Zdrantan’s tragic death was preceded by a series of actions by government actors that have been
the subject of criticism. See, Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1003
(N.D. Cal. 2017), DeShaney 489 U.S. at 202–03, 109 S. Ct. at 1006–07; Pauluk, 836 F.3d at
1132. However, as in those cases, this Court recognizes that it cannot yield toward the impulse of
sympathy for the victims and must determine only whether the law allows Plaintiffs to proceed
with their claim based on the legal theories alleged. I conclude that no reasonable fact finder
could conclude that the Defendants’ conduct, policies or practices deprived Ms. Zdrantan of her
substantive due process rights in violation of the Fourteenth Amendment. Accordingly,
Defendants’ motion for summary judgment on Plaintiffs’ First Claim for Relief is granted.
II. Plaintiff Estate’s Wrongful Death Claim
This Court has supplemental jurisdiction over Plaintiffs’ state law claims and it is within
the Court’s discretion to retain jurisdiction over the state law claims even if the federal claims are
dismissed. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139
(1966). In determining whether to retain jurisdiction, the Court considers issues of judicial
economy, convenience, and fairness. Id. After considering these factors, the Court concludes that
it will retain jurisdiction over Plaintiffs’ state law claims.
Plaintiffs’ allegations that Defendants negligently caused Ms. Zdrantan’s death fall into
two main categories: permitting Petersen to leave the Center and failing to warn Ms. Zdrantan or
OPINION AND ORDER – 21
her family. Specifically, Plaintiffs allege that Defendants failed to exercise reasonable care to
protect Ms. Zdrantan from harm by: 1) permitting Petersen to leave the custody and control of
the Center unsupervised; 2) permitting Petersen to leave the Center without an electronic
monitoring device; 3) permitting him to leave the Center when “defendants knew or should have
known that he had a violent history and was a credible threat to Ms. Zdrantan and her family”
and there was an outstanding no-contact order against him; 4) permitting Petersen to leave the
Center without verifiable employment; 5) failing to contact Ms. Zdrantan to notify her that
Petersen was transferred to the Center, that he was in the community unsupervised on work
release, or that he had notified Defendants he was in an unauthorized area; 6) waiting three hours
before attempting to notify Ms. Zdrantan and her family that Petersen’s location was
unaccounted for; 7) failing to ensure they had updated contact information; and 8) failing to
attempt to contact Ms. Zdrantan’s family or make other efforts to reach her once their initial
efforts had failed.
Defendants assert that summary judgment is appropriate on this claim because Oregon’s
law on discretionary immunity protects from liability the policy decisions made by governmental
defendants and followed by their employees. Therefore, according to Defendants, negligence
based on permitting Mr. Petersen to leave the Center is barred by discretionary immunity.
Defendants further assert that negligence based upon a failure to warn theory fails because there
is no triable issue of fact as to causation.
A. Permitting Petersen to Leave the Center
Under Oregon law:
Every public body and its officers, employees and agents acting within the scope
of their employment or duties . . . are immune from liability for:
****
OPINION AND ORDER – 22
(c) Any claim based upon the performance of or the failure to exercise or perform
a discretionary function or duty, whether or not the discretion is abused.
ORS § 30.265(6)(c).
Discretionary immunity applies if a governmental person or entity made a policy choice
among alternatives, with the authority to make that choice. Garrison v. Deschutes County, 334
Or. 264, 273–75 (2002); Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 89–90, 92 (1992).
Discretionary immunity does not apply to “routine decisions made by employees in the course of
their day-to-day activities, even though the decision involves a choice among two or more
courses of action.” Lowrimore v. Dimmitt, 310 Or. 291, 296, 797 P.2d 1027 (1990). “Once a
discretionary choice has been made, the immunity follows the choice. It protects not only the
officials who made the decision, but also the employees or agents who effectuate or implement
that choice in particular cases. Only if an employee or agent makes an additional choice—one
that is not subject to discretionary or other immunity—can there be liability. In that
circumstance, liability attaches to the nonimmune choice and only to the nonimmune choice.”
Westfall v. State ex rel. Oregon Dep't of Corr., 355 Or. 144, 161, 324 P.3d 440, 449 (2014).
In order to demonstrate their entitlement to discretionary immunity, Defendants must
prove that the conduct was the product of a decision, that the decision is a policy decision, and
the decision must have been made by a governmental decision-maker with the authority to make
that type of decision. Robbins v. City of Medford, 284 Or. App. 592, 597 (2017). In reviewing the
record, I agree with Defendants that in light of the allegations in Plaintiffs’ Fourth Amended
Complaint, they were not required to produce additional evidence as to how the policies were
created. (See Plaintiffs’ Response at p. 55). Plaintiffs have admitted, and the evidence supports
the conclusion, that the individual Defendants acted pursuant to the official and/or longstanding
OPINION AND ORDER – 23
policies of the County and Center. Plaintiffs also admit, and the evidence demonstrates, that
these policies, set out in the Center’s Staff Policy and Procedures Manual and Residential
Counselor’s Manual, were promulgated and maintained by final policymakers. (4th Am. Compl.
¶¶ 27-28, 37, 53, 54; Mollahan Depo. pp. 7, 8, 125; Hartner Depo. pp 8-11, 15).
Nonetheless, after a thorough review of the record and viewing the undisputed evidence
in a light most favorable to the Plaintiffs, I conclude that a reasonable jury could find that the
conduct of Center employees with respect to Petersen was not entitled to discretionary immunity
either because those employees failed to follow policy or because they were left to make
additional choices not subject to discretionary immunity. Because there is a genuine issue of
material fact as to this aspect of the claim, summary judgment is not appropriate.
B. Failure to Warn
In order to sustain their wrongful death claim, Plaintiffs must prove that the Defendants’
acts or omissions caused Ms. Zdrantan’s death. Plaintiffs assert that Defendants’ failure to warn
Ms. Zdrantan was the cause of her death. Defendants argue that under Oregon law, a failure to
warn someone of knowledge they already have does not support liability.
In Fuhrer v. Gearhart-By-The-Sea, Inc., 306 Or. 434 (1988), the Oregon Supreme Court
explained that “[t]he risk in a failure-to-warn case is not the hazard itself, but the chance that
someone predictably will be exposed to danger, be it rape or dangerous surf, if no warning is
made.” Id. at 438. The Court concluded that
A defendant may be liable if the defendant can reasonably foresee that there is an
unreasonable risk of harm, a reasonable person in the defendant's position would
warn of the risk, the defendant has a reasonable chance to warn of the risk, the
defendant does not warn of the risk, and the plaintiff is injured as a result of the
failure to warn.
Id. at 438-439. However, the Court went on to explain that if the danger was apparent to the
OPINION AND ORDER – 24
plaintiff, a warning would not have made [the plaintiff ] more aware of the danger, and the
failure to warn [the plaintiff] did not expose him to any greater risk of harm than if he had been
warned.” Id. at 439. In Fuhrer, the Court found that because it was not known whether the
danger was apparent to the deceased plaintiff or whether he would have taken another course of
action if warned, a trier of fact could conclude that “a warning could have made a difference.” Id.
at 439-440.
Defendants rely on the Oregon Supreme Court’s later decision in Garrison, to argue that
“Oregon law is clear that failing to warn someone of knowledge they already have does ‘not
expose [them] to any greater risk of harm than if [they] had been warned,’ and therefore, cannot
support liability.” (Def. Motion at 26, quoting but not citing Garrison, 334 Or. at 271). However,
in Garrison, both the Court of Appeals and the Oregon Supreme Court had the benefit of the
plaintiffs’ own testimony that they were well aware of the risk. The Court of Appeals decision,
which was upheld by the Oregon Supreme Court, specifically held that, “On this record, it is
impossible to see how a warning sign would have altered plaintiffs' behavior in any way or how
the absence of a warning exposed plaintiffs to any greater risk of harm than if they had been
warned.” Garrison,162 Or. App. at 169 (emphasis added).
Based on the record before this Court and the guidance of the Oregon cases discussed
above, I conclude that there are genuine issues of material fact regarding whether the
Defendants’ failure to warn Ms. Zdrantan exposed her to a greater risk of harm than if she had
been warned. There is undisputed evidence that Ms. Zdrantan, through her attendance at the
probation violation hearing on August 18, 2014, had some knowledge that Petersen would be
transferred to the Center. It also undisputed that, through her encounters with Petersen along the
Tualatin Valley Highway and in the apartment manager’s office on August 28, 2014, she had
OPINION AND ORDER – 25
knowledge that Petersen was out in the community on the day of her murder. However, that
evidence, viewed in a light most favorable to Plaintiffs does not compel the conclusion that Ms.
Zdrantan was “fully aware” of the danger or that the Defendants’ failure to warn Ms. Zdrantan
did not expose her to any greater risk of harm than if she had been warned. A reasonable juror
could conclude that a warning or warnings from Defendants could have “made a difference” and
that the failure to warn was a cause-in-fact of Ms. Zdrantan’s injuries.
For these reasons, and for the reasons discussed above in II.A., Defendants’ motion for
summary judgment on Plaintiffs’ Second Claim for Relief is denied.
III. Plaintiff A.B.’s Negligent Infliction of Emotional Distress Claim
Plaintiffs allege a negligent infliction of emotional distress claim on behalf of A.B., the
minor child of Ms. Zdrantan and Petersen. Plaintiffs allege that the Defendants negligently
caused Ms. Zdrantan’s murder by a third person, Petersen, and that A.B. witnessed Ms.
Zdrantan’s serious injuries and death as they occurred.
Defendants assert that summary judgment is appropriate on this claim because it both
fails on the merits and is barred by timely lack of notice under the Oregon Tort Claims Act.
The NIED claim here finds its basis in an exception to the physical injury rule for
emotional distress damages that was carved out by the Oregon Supreme Court in Philbert v.
Kluser, 360 Or. 698, 712-713 (2016). In Philbert, the court considered recovery of emotional
distress damages in a bystander situation and allowed recovery where “a defendant negligently
causes foreseeable, serious emotional distress and also infringes some other legally protected
interest.” Id. at 702 (internal quotation marks and citations omitted). The legally protected
interest identified there was “the interest in avoiding being a witness to the negligently caused
traumatic injury or death of a close family member.” Id. at 707.
OPINION AND ORDER – 26
Under Oregon law, a bystander may recover if: (1) the bystander witnesses a sudden,
serious physical injury to a third person negligently caused by the defendant;” (2) the bystander
suffers serious emotional distress; (3) the bystander perceives the events that caused injury to the
third person as they occurred. (4) the bystander is a close family member of the person suffering
the bodily injury. Id. at 712-714 (emphases omitted).
Defendants argue that because A.B. was locked in the bedroom during the murder of Ms.
Zdrantan and observed, at most, the aftermath of the murder, the first element is not satisfied
because A.B. did not “witness” the serious physical injury. Plaintiffs assert that there are genuine
issues of material fact regarding what A.B. witnessed and, even under Defendants version of
events, A.B. “perceived” her mother’s death as it occurred because she could hear what was
happening through the bedroom door.
It is undisputed that A.B. was in the apartment during her mother’s murder. The evidence
also supports the conclusion that she would have had to pass through the apartment after the
murder when Petersen brought her to Ms. Molina’s apartment. The only admissible evidence
regarding whether A.B. witnessed the murder contemporaneously is the Declaration from
Petersen that A.B. was locked in the bedroom during his fight with Ms. Zdrantan. The evidence
presented through Mr. Zdrantan and A.B.’s therapist, Paige Light, upon which Plaintiffs rely, is
largely inadmissible and is, in any event, insufficient to create a genuine issue of material fact as
to whether A.B. witnessed the murder contemporaneously.
Plaintiffs’ assert that even A.B.’s perception of the murder through the closed door is
sufficient to support her NIED claim. I disagree. Citing cases from California, Plaintiffs argue
that “perception” is not limited to visual observance of the event. However, those cases applied
different factors in evaluating whether a defendant should reasonably foresee injury to a plaintiff
OPINION AND ORDER – 27
and are, in any event, not controlling case law. See, e.g. Ochoa v. Superior Court, 39 Cal. 3d
159, 166, 703 P.2d 1 (1985)(describing the factors set out in Dillon v. Legg (1968) 68 Cal.2d 728
[69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]).
Under Oregon law, a plaintiff may recover under the bystander rule if she “witnesses a
sudden, serious physical injury to a third person negligently caused by the defendant.” Philbert,
at 712 (emphasis added). To require that a plaintiff “witness” the event in the first element and
then remove that requirement in the third element by allowing “perception” to encompass
awareness garnered through some means other than a visual observation is not logical and I
decline to expand the Philbert rule in such a way. Accordingly, Defendants’ motion for summary
judgment as to Plaintiff’s Third Claim for Relief is granted.
Having concluded that Plaintiffs’ NIED claim fails on the merits, I need not and do not
reach the issue of whether the claim is barred by lack of timely notice under the Oregon Tort
Claims Act.
Conclusion
For the reasons set out above, Defendants’ motion for summary judgment (Dkt. #71) is
GRANTED in part and DENIED in part. Plaintiffs’ First and Third Claims for Relief are
DISMISSED.
DATED this 9th day of August, 2018.
/s/ John Jelderks
John Jelderks
U.S. Magistrate Judge
OPINION AND ORDER – 28
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