Worley v. Brewer et al

Filing 111

OPINION AND ORDER. Evans's Motion (ECF No. 79 ) for Summary Judgment is GRANTED and this action is DISMISSED with prejudice. IT IS SO ORDERED. Signed on 1/16/2019 by Magistrate Judge John V. Acosta. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

JAMES WORLEY,

Case No.: 3:16-cv-2412-AC
Plaintiff,

OPINION AND ORDER

V.

MICHELLE BREWER, ELIJAH
CHAMBERS, and-JENNIFER EVANS,
Defendants.
ACOSTA, Magistrate Judge:
Introduction

Plaintiff James Worley ("Worley") brought claims under 42 U.S.C. § 1983 against
Michelle Brewer and Elijah Chambers, Oregon State Police detectives, and Jennifer Evans, an
Oregon Department of Human Services ("DHS") caseworker (collectively "State Defendants"),
alleging State Defendants violated his rights under the Fourth and Fourteenth Amendment.
Worley also brought state-law claims for false arrest, malicious prosecution, and negligence. In a
previous Order (ECF No. 50), Judge Brown granted State Defendants' Motion to Dismiss as to
all claims except for Worley's claim under § 1983 alleging Defendant Evans ("Evans")
fabricated evidence in violation of Worley's Fourteenth Amendment substantive due process
rights. Currently before the court is Evans's Motion for Summary Judgment as to Worley's
remaining claim. For the reasons set forth below, the court grants Evans's motion. 1

1

The parties have consented to jurisdiction by magistrate m accordance with 28 U.S.C.
§ 636( C)(1 ).

OPINION AND ORDER - 1

Background

In 2000, Worley married Heather Laughlin. Laughlin had a minor daughter, HL, from a
prior marriage to Kenneth Cole. (Pl.'s Compl., ECF No. 1, at 5.) In January 2002, Worley and
Laughlin had a son, SW, while living in Deschutes County, Oregon. (Id.)
On September 19, 2006, the Lane County Circuit Court entered a Judgment of
Dissolution dissolving the marriage of Worley and Laughlin. (Id.) Following the divorce,
Laughlin, HL, and SW lived together in Lane County. Worley had regular visitation with SW
and HL. (Id.)
In March 2008, Worley married Joanne Davis. 2 Davis had a minor daughter, AD, from a
prior marriage. Worley and Davis have two children together: a son, JW, and a daughter, also JW
(the "children"). (Id.)
In February 2012, Worley, Davis, AD, and the children moved to Gresham, Oregon.
Around that time, SW told Worley he wanted to live with Worley and Davis. When HL learned
SW might possibly move, she became upset and stopped visiting Worley. (Id. at 6.) On July 12,
2012, HL told Laughlin and Cole that Worley had sexually abused her in the_ past. (Id. at 7.)
On July 19, 2012, Laughlin took HL, who was then 15 years old, to the Oregon State
Police in Lane County and spoke with Detective Chambers. (Id. at 8.) That same day, Evans, a
DHS caseworker in Gresham, Oregon, began an investigation into the safety of the three children
residing in Worley's household: AD and the children. (Pl.'s Resp. to Defs.' Mot. Summ. J., ECF
No. 100, at 2 ("Pl.'s Resp.").)
Upon assignment of the case, Evans performed a "social media check" on Worley. (Deel.
of Daniel Snyder, ECF No. 101-2 ("Snyder Deel."), Ex. H at 134:5-10 ("Evans Dep.").) Her

2

For purposes of clarity, the court will refer to Joanne Davis, now Joanne Worley, as "Davis."

OPINION AND ORDER - 2

search revealed two videos posted on a social media website; one video showed Worley
dropping his step-daughter, AD, and daughter, JW, off at school ("driving-to-school video"), and
the other showed Worley and AD sitting next to each other at home. (Id. at 37:9-18.) Evans
claimed the driving-to-school video depicted Worley "inappropriate[ly]" kissing AD on the lips
to say goodbye as she exited the vehicle. (Id. at 29:15-25, 39:15-22, 88:11-14.) Evans construed
Worley and AD's behavior in the second video as flirtatious and atypical because they were
"sitting very close to each other ... rubbing up against each other and giggling and moving and
acting silly." (Id. at 46:1-10, 44:21-25.) Evans found the interactions concerning because AD had
a prior history of sexual abuse by her adoptive father, which Worley was allegedly aware of. (Id.
at 46:17-19.) Shortly after viewing the videos, Evans forwarded a link of the driving-to-school
video to Detective Chambers, but she did not download the videos to her work computer because
DHS did not have the ability to do so and she expected Chambers would retain the video. (Id. at
47:24-48:12, 49:9-17, 66:7-9.) Evans believed the videos showed Worley engaging in sexual
"grooming-type behaviors" toward AD. (Id. at 88:11-14.)
In describing the driving-to-~chool video, Chambers noted that Worley was filming from
a hand-held device while nanating, the vehicle stopped, and "the teenage girl went to get out and
gave Mr. Worley and ... also the grade schooler both a kiss on the lips as if to signify goodbye." (Snyder Deel., Ex.Kat 31:10-18 ("Chambers Dep.").) Chambers did not find the kiss was
of a sexual nature, and he did not retain the video or later tum it over to Worley' s defense
counsel because he did not see anything of a criminal nature in the video. (Id. at 32:2-24.)
Rather, Chambers found the video depicted a normal family interaction. (Id. at 32:25-33: 1.)
On July 19, 2012, the same day Evans began her investigation, Evans put a "safety plan"
in place for the Worley family. (Snyder Deel., Ex. A at 2, 5.) The plan lasted fo! approximately

OPINION AND ORDER - 3

five months and required Davis to supervise Worley's contact with their children. (Id at 2.) On
July 20, 2012, Evans called Davis and told her that Worley had to move out because he was a
"monster," claiming Worley had put his hand on AD's thigh and kissed her on the mouth. (Deel.
of Joanne Worley, ECF No. 105, 4j! 3.) AD later stated that she never told Evans that Worley
touched her on her thigh, only that he would put his hands on her knee and she never felt it was
inappropriate. (Deel. of Amy Bertrand, ECF 80 ("Bertrand Deel."), Ex. 2 at 1-2, 14 ("AD
Interview").) AD also reported that kissing on the lips, nose, cheek, and head were normal ways
of showing affection in her family and she never felt uncomfortable around Worley. (Id. at 1415.)
On May 21, 2013, Evans testified in a Lane County family court hearing that she was
aware of a video on the internet that showed Worley driving his kids to school unsupervised, and
that she viewed the video before the safety plan was put into place. (Snyder Deel., Ex. A at.5.)
On December 17, 2014, Worley was indicted by a grand jury in Deschutes County on
numerous counts of felony rape and sex abuse against HL and SW. (Pl.'s Compl. 14-15.) On
December 30, 2014, Worley was arrested in his home in Gresham pursuant to an arrest wanant
issued in the Deschutes County case. (Id. at 15.) On January 23, 2015, Worley posted bond and
was released from jail under house arrest. (Id.)
On April 17, 2015, Worley was charged with additional sex-abuse charges in Tillamook
County. (Id at 16.) On April 20, 2015, Worley was again arrested at his home in Gresham.
Worley remained in custody on the Tillamook County charges for approximately ten months pretrial. (Id.)
On February 1, 2016, Worley's criminal trial began in Tillamook County. (Id at 17.) On
February 23, 2016, Evans testified concerning the videos. (Snyder Deel., Ex. B at 1.) In

OPINION AND ORDER - 4

describing the driving-to-school video, Evans stated Worley and AD were "riding very, very
closely in the car," and Worley "kiss[ed] her directly on the mouth when they were saying goodbye." (Id. at 9.) In describing the video of Worley and AD in their home, Evans stated "[t]hey
were sitting extremely close to each other," and their conduct was of a "very intimate nature that
you would see more with a paiiner versus a stepdaughter." (Id. at 9, 14.) Evans stated that she
passed the videos along to law enforcement because she was "concerned of grooming-type
behaviors between Mr. Worley and [AD.]" (Id. at 9.) Evans also testified that Worley was
cooperative with the safety plan that she put into place in 2012, but "given the information that's
available today, if [Worley] was to return to the home, a new assessment would be opened, and
there would be a new DHS assessment conducted." 3 ' (Id. at 4, 7.)
On March 7, 2016, the jury in the Tillamook County trial found Worley "not guilty" on
five counts and hung on the remaining 17 counts. (Deel. of Mae Lee Browning, ECF 102
("Browning Deel."), 17.) The same day, the Tillamook County Circuit Court released Worley to
the family home, where he was to remain on house arrest for the pending charges in Deschutes
County. (Id.) On March 14, 2016, the Tillamook Court entered a judgment ofdismissal upon the
remaining 17 counts in response to the State's motion to dismiss. (Id. at 118-9.)
On March 23, 2016, Evans placed an anonymous phone call to DHS's child abuse hotline
to initiate a new assessment of the children. (Evans Dep. 94:12-19, 97:21-98:5.) Evans was also
assigned to investigate the case. (Id. at 102:18-19.) On March 24, 2016, at approximately 3:00
p.m., Evans went to the Worley residence unannounced. (Id. at 101 :20.) The children were not at
the home at the time because they were staying with Krista Rasey, a family friend, while Worley

3

Evans was referring to sexual abuse allegations SW made in 2014, which occurred after Evans
completed her 2012 threat of harm assessment and were new to Evans and her colleagues at the
DHS Gresham office. (Deel. of Craig Johnson, ECF No. 83 ("Johnson Deel."), Ex. 3 at 8-10.)

OPINION AND ORDER - 5

and Davis went to Bend, Oregon earlier that day. (Deel. ofK.rista Rasey, ECF 104 ("Rasey
Deel."), ,i 5.) Worley and Davis elected not to speak with Evans and referred her to their attorney
Richard Cohen. (Evans Dep. 104:6-9.) Evans returned to the DHS office to meet with her
supervisors and telephone Cohen. (Id. at 105:24-106:4.)
Because Cohen was unavailable, Evans initially spoke with attorney Mae Lee Browning
at approximately 4:15 p.m. (Browning Deel. ,i 12.) Evans informed Browning that DHS would
remove the children from the home and file a juvenile petition if Worley and Davis did not agree
to a safety plan, and if Worley remained in the home that night. (Id. at ,i 12.) Evans's demand
that Worley leave that night was problematic because Worley was on house arrest and obtaining
permission for Worley to move out was unlikely on such short notice. (Id. at ,i 13.) Upon
returning to his law office and speaking with Browning, Cohen placed a call to DHS at
approximately 4:45 p.m., which Browning listened in on. (Declaration of Richard D. Cohen,
ECF 103 ("Cohen Deel."), ,i 4; Browning Deel. ,i 15.) Evans and her supervisors, Cheryll Ramos
and Amy Bertrand, were present on the call at DHS. (Evans Dep. 110:15-20.) Evans claims she
did not "speak directly to Mr. Cohen;" rather, "he was speaking to either Cheryll Ramos or Amy
Bertrand." (Id. at 110:13-17.)
During the brief call, Cohen informed the DHS employees that Worley and Davis would
cooperate with safety planning. (Id at 111: 16-23.) Cohen assured Evans and her supervisors that
the children were at Rasey's home, provided Rasey's address and telephone number, informed
them that Rasey had substantial experience with children as a former Court Appointed Special
Advocate, and assured DHS that they would have access to the children to verify they were safe.
(Cohen Deel. ,i,i 5-6; Browning Deel. ,i 15; Evans Dep. 111 :24-112:2.) An agreement was
reached whereby the children would stay with Rasey that evening and, due to the lateness in the

OPINION AND ORDER - 6

day, Cohen and DHS agreed that if fmiher safety planning was needed, they could discuss it the
following day, Friday, March 25, 2016. (Browning Deel.

,r 15; Cohen Deel. ,r 7.)

Shortly after the phone call from Cohen, Evans called Rasey and asked if the -children
were with her. (Rasey Deel.

,r

7.) Rasey confomed she was with the children, and Evans

informed her that she would send two DHS caseworkers over that evening to check on them.

(Id.; Evans Dep. 114:10-14.) Evans also gave Rasey the following instructions: the children were
to have no contact.with Worley; Davis could talk with and visit her children, but only in Rasey's
presence; and Davis could not take the children from Rasey's home. (Rasey Deel.

,r 7;

Evans

Dep. 139:10-12.) That evening two DHS caseworkers went to Rasey's home and confirmed the
children were there. (Rasey Deel.

,r 8; Evans Dep.

116:24-117:6.)

On March 25, 2016, Evans submitted a signed affidavit in support of a protective custody
order for the children in the Multnomah County Circuit Court. (Snyder Deel., Ex. C ("Evans
Aff.").) Evans wrote, in relevant part, that "DHS attempted to speak to Mr. and Ms. Worley to
create a safety plan, however both parents refused to spe~k to this worker. DHS placed a call to
Mr. Worley's attorney, Rich Cohen, in an effort to work with the family to create a safety plan.
At this time, DHS has not been able to gain cooperation from the family to ensure safety of the
children." (Id. at 1.) The Multnomah County Court issued a warrant for protective custody of the
Worley children based on Evans's affidavit, stating in the warrant that "DHS has attempted to
create a safety plan to address concerns without success/cooperation on the part of the parents."
(Snyder Deel., Ex. D at 2.) The court found protective custody was in the best interest of the
children because "[Worley] has pending charges related to sexual abuse, a previous [illegible] of
founded abuse allegations, [and Davis] is either unable or unwilling to protect the children[.]"

(Id. at 3.) After the warrant issued, Evans informed Rasey the children had been placed into DHS

OPINION AND ORDER - 7

custody. (Rasey Deel.

~

10.) Later that day, Evans met Rasey _-at her _home and fast-tracked ..

paperwork to qualify Rasey as an emergency foster parent. (Id. at~ 11; Evans Dep~ 120:8-10.)
On March 28, 2016, a shelter hearing was held before Referee Herzog at the Multnomah
County Juvenile Justice Center. (Johnson Deel., Ex. 3.) After learning of Cohen's cooperation
with DHS on behalf of his clients and their agreement to place the children with Rasey, Referee
Herzog stated Evans's affidavit "was unclear and almost misleading." (Id. at 39-41.)
Nonetheless, the Juvenile Court allowed the grant of temporary custody to DHS to continue
based on Worley's history of "founded" sex abuse allegations made by HL and SW, and Davis's
failure to recognize the risk to the children that Worley presented. (Johnson Deel., Ex. 6 at 2; see
also Johnson Deel., Ex. 3 at 49-50.) Specifically, Referee Herzog found it was in the best interest

of the children to be placed in a safe environment during the time DHS needed to conduct its
assessment, and that temporary custody would remove "the potential for the children to be
influenced by the parents during that time." (Johnson Deel., Ex. 3 at 50.) The referee left open
the possibility of returning the children to Davis's care if Worley was able to change his pre-trial
release terms to permit him to reside outside of his home. (Johnson Deel., Ex. 6 at 3.) Referee
Herzog also granted Worley supervised visits with his children. (Id.)
On May 4, 2016, a re-hearing of Referee Herzog's shelter hearing decision was held
before Judge Hehn. (Johnson Deel., Ex. 5.) Judge Hehn affirmed Referee Herzog's order based
on the "totality of the evidence." (Id. at 86.) Specifically, the judge found the nature of HL and
SW's allegations "extremely disturbing," and was concerned by some of Worley's behavior
towards the children, presumably Worley's admission that he disciplined HL and SW by
spanking them with a belt and pinching them, as well as his admission that on more than one
occasion he urinated on SW while taking a shower with him. (Id. at 86; Johnson Deel., Ex. 4 at

OPINION AND ORDER - 8

2-3.) The judge additionally found custody warranted because there was "a lot of concern by
court and official actors about the level of risk that [Worley] may pose to these children," noting
Worley's pending Deschutes County indictment clearing a grand jury, the fact that his criminal
charges "had to have gotten through some probable cause findings [made] by judges," and a
prior no contact order with SW that was issued by Lane County. (Johnson Deel., Ex. 5 at 87-88.)
Finally, Judge Hehn ordered the children returned to Davis on the following conditions: a safety
plan be entered into with DHS; Worley had to move out of the family home; Worley could
continue visiting his children in the presence of supervisors approved by DHS; and nobody,
other than a professional with DHS's approval, could talk to the children about the case or the
allegations made against Worley. (Id)
On March 14, 2018, Worley was found guilty by a Deschutes County jury of seven
felony charges and sentenced to 150 months in the custody of the Oregon Department of
Corrections. (Johnson Deel., Ex. 1.)
Legal Standard

Summary judgment is appropriate where the "movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a) (2018). Summary judgment is not proper if material factual issues exist for trial.
Warren v. City of Carlsbad, 58 F.3d 439,441 (9th Cir. 1995).

The moving party has the burden of establishing the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the
absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings
and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot
defeat summary judgment by relying on the allegations in the complaint, or with unsupported

OPINION AND ORDER - 9

conjecture or conclusory statements. Hernandez v. Space labs Medical,Inc., 343 F .3d 1107, 1112
(9th Cir. 2003). Thus, summary judgment should be entered against "a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The comi must view the evidence in the light most favorable to the nonmoving party.
Bell v. Cameron lvleadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt

as to the existence of a genuine issue of fact should be resolved against the moving party. Hector
v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn,

summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136,
140 (9th Cir. 1981).
However, deference to the nonmoving party has limits. A party asserting that a fact
cannot be true or is genuinely disputed must support the assertion with admissible evidence. Fed.
R. Civ. P. 56( c) (2018). The "mere existence of a scintilla of evidence in support of the [paiiy' s]

position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore,
where "the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial." .1\;Jatsushita Elec. Indus. Co., Ltd v. Zenith
Radio Corp., 475 U.S. 574,587 (1986) (internal quotations marks omitted).
Discussion

Worley's claim, brought under 42 U.S.C. § 1983, alleges Evans deliberately fabricated
evidence against him in violation of his substantive due process rights guaranteed under the
Fourteenth Amendment of the United States Constitution. Specifically, Worley alleges Evans's
investigatory statements and testimony at the Tillamook County trial concerning the internet
videos of Worley and AD were deliberately fabricated. (Pl.'s Compl. 27; Pl.'s Resp. 16.) Worley

OPINION AND ORDER - 10

further alleges that Evans deliberately fabricated sworn statements submitted in an affidavit in
supp01i of a protective custody order for the children;. The court addresses each in turn.

I.

Internet Videos
Worley claims Evans "concoct[ed] false· claims" in her investigation and trial testimony

that internet videos showed an inappropriate relationship between Worley and AD, because no
such videos exist. (Pl.'s Compl. 27.) Worley further alleges Evans lied to Davis about AD
reporting Worley touched her on the thigh. (Pl.' s Resp. 15.)
"To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the
defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the
plaintiffs deprivation of liberty." Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (citing

Costanich v. Dep 't of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010)).
"Fundamentally, the plaintiff must first point to evidence he contends the government
deliberately fabricated." Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015) (citations
omitted).
A plaintiff can establish that the fabrication was deliberate in one of two ways. First, the
plaintiff can introduce direct evidence that the defendant made "actual misrepresentations," such
as evidence that the defendant "deliberately falsified statements in her investigative rep01i and
declaration." Costanich, 627 F.3d at 1111, 1113. However, "not all inaccuracies ... give rise to a
constitutional claim. Mere carelessness is insufficient, as are mistakes of tone." Spencer, 857
F.3d at 798 (internal citations and quotation marks omitted.) Second, but not relevant here, there
are "two circumstantial methods" of proving the falsification was deliberate: (1) "the defendant
continued his investigation of the plaintiff even though he knew or should have known that the
plaintiff was innocent," or (2) "the defendant used 'investigative techniques that were so

OPINION AND ORDER - 11

coercive and abusive that he knew or should have known that.those techniques would .yield false .
information."' Bradford, 803 F.3d at 386 (quoting·-Devereaux v. Abbey, 263 F.3d1070, 1076
(9th Cir. 2001) (en bane)).
To establish the second element of causation, the plaintiff must show that "the act was the
cause in fact of the deprivation of liberty, meaning that the injury would not have occuned in the
absence of the conduct;" and "the act was the 'proximate cause' or 'legal cause' of the injury,
meaning that the injury is of a type that a reasonable person would see as a likely result of the
conduct in question." Spencer, 857 F.3d at 798 (quoting Whitlock v. Brueggemann, 682 F.3d
567, 582-83 (7th Cir. 2012)). Although, "[e]nors concerning trivial matters cannot establish
causation, a necessary element of any § 1983 claim. And fabricated evidence does not give rise
to a claim if the plaintiff cannot show the fabrication actually injured her in some way." Id.
(internal citation and quotation marks omitted).
Evans first argues the court should grant summary judgment in her favor because in order
to prevail on a Fourteenth Amendment substantive due process claim predicated on deliberately
fabricated evidence, the plaintiff must have been convicted. (Defs.' Mot. Summ. J., ECF No. 79,
at 7-8 ("Defs.' Mot.").) Evans contends that "nobody has deprived Plaintiff of his
constitutionally protected interest in life or liberty when acquittal resulted." (Id.) Worley argues
"the law of the Ninth Circuit is-.. precisely the opposite," asserting "all malicious prosecution
claims in Oregon, whether brought under state or federal law, require that the criminal
proceeding result in an acquittal." (Pl.'s Resp. 13-14 (citing J\tfiller v. Columbia Cnty., 282 Or.
App. 348, 360 (2016)).) Both arguments miss the mark.
To the extent Worley asserts his claim arises under a theory of malicious prosecution,
that avenue was foreclosed by Judge Brown's prior Order finding "probable cause existed for

OPINION AND ORDER - 12

·· {Worley]'s arrest and-prosecution." (Op. and Order, ECF 50, at24J As the court previously
- explained, "the existence of probable cause is an absolute defense f6 malicious prosecution." (Id.
at 22 (citing Lassiter v. City of Bremerton, 556 F.3d 1049, 154-55 (9th Cir. 2009)).) Thus,
Worley's reliance on the elements of a malicious prosecution claim is misplaced. 4 In the same
vein, Evans's reliance on two federal habeas criminal appeals-which unsurprisingly involve a
convicted criminal defendant-for the proposition that "inherent in all cases Defendant Evans
could find is the requirement that ... a criminal conviction must have resulted," is without merit.
(Defs.' Motion 7-8.) Beside the fact that those cases make no mention of civil liability under
§ 1983, Evans reads into those cases a criminal conviction requirement that is simply not there.
See Henry v. Ryan, 720 F.3d 1073, 1084-85 (9th Cir. 2013); Phillips v. Ornoski, 673 F.3d 1168,
-1181-82 (9th Cir. 2012).
Indeed, the Ninth Circuit recently addressed this issue, noting that "circuits have split
on . . . whether a deliberate fabrication of evidence claim necessarily fails if the plaintiff was
acquitted." Spencer, 857 F.3d at 802 n.4; see also Black v. Nfontgomery Cty., 835 F.3d 358, 371
& n.12 (3d Cir. 2016) (collecting cases), cert. denied sub nom. Pomponio v. Black, 137 S. Ct.

2093 (2017). Although the court declined to decide the issue in Spencer because the plaintiff was
not acquitted, id, the Ninth Circuit's previous discussion in Deveremcc all but answered the
question. There, the court held:
Under Pyle v. Kansas, 317 U.S. 213, 216, 63 S. Ct. 177, 87 L. Ed.
214 (1942), the knowing use by the prosecution of pe1jured
4

Worley' s argument is somewhat understandable given the court's reference to Worley' s
surviving claim against Evans as "a § 1983 claim for malicious prosecution." (Op. and Order
17.) However, as the Ninth Circuit previously explained, "the right at issue in a Devereaux claim
is the right to be free from criminal charges based on a claim of deliberately fabricated evidence.
In this regard, it is similar to the tort of malicious prosecution, which involves the right to be free
from the use of legal process that is motivated by malice and unsupported by probable cause."
Bradford, 803 F.3d at 388 (internal citation and quotation marks omitted).
OPINION AND ORDER- 13

testimony· in order to secure a criminal conviction violates the .
Constitution. While Pyle does not deal specifically with the
bringing of criminal charges, as opposed to the -securing of a
conviction, we find that the wrongfulness of charging someone on
the basis of deliberately fabricated evidence is sufficiently obvious,
and Pyle is sufficiently analogous, that the right to be free from
such charges is a constitutional right.
Devereaux, 263 F.3d at 1075.

The en bane court's emphasis on the "right not to be subjected to criminal charges on the
basis of false evidence," makes clear that the act of subjecting an individual to the criminal
process itself is a significant liberty deprivation and cognizable under the due process clause of
the Fourteenth Amendment. Id at 1074-75 (emphasis added). Further, the Ninth Circuit has
already implicitly signaled that an acquittal does not sound the death knell for a deliberate
fabrication of evidence claim. See Bradford, 803 F.3d 382, 388 (9th Cir. 2015) (setting the
accrual date for the plaintiffs Devereaux claim as the date of acquittal for purposes of the statute
of limitations). Therefore, to the extent the Ninth Circuit's holdings in Devereaux and Bradford
leave any ambiguity, this court follows the reasoning of the Second, Third, Fifth, and Eleventh
Circuit Courts of Appeals, and holds a criminal conviction is not a prerequisite for a plaintiff
bringing a § 1983 deliberate fabrication of evidence claim under the due process clause of the
Fourteenth Amendment. See, e.g., Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000); Black,
835 F.3d at 371; Cole v. Carson, 802 F.3d 752, 771 (5th Cir. 2015) (relying, in pmi, on
Devereaux to reject criminal conviction prerequisite), vacated on other grounds sub nom. Hunter
v. Cole, 137 S. Ct. 497 (2016); Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1328

(11th Cir. 2015).
Next, Evans argues that Worley's claim fails because the prosecutor must be the named
defendant. (Defs.' Mot. 8.) Evans again cites federal habeas and criminal appeals cases that do

OPINION AND ORDER - 14

not support the proposition she advances. See Sanders v. Cullen,- 873: F;3d 778,_ 794 (9th Cir.
2017); United States v. Renzi, 769 F.3d 731, 751-52 (9th Cir. 2014);-Soto v. Ryan,,760 F.3d 947,
958 (9th Cir. 2014). Those cases discuss the elements a criminaldefendant must establish to
ove1iurn a conviction obtained by way of false evidence, not civil liability under § 1983.
Contrary to Evans's assertion, the Ninth Circuit has made clear that in the context of a § 1983
claim, "social workers are not entitled to absolute immunity from claims that they fabricated
evidence during an investigation or made false statements in a dependency petition affidavit that
they signed under penalty of perjury[.]" Costanich, 627 F.3d at 1109 (quoting Beltran v. Santa

Clara Cty., 514 F.3d 906, 908 (9th Cir. 2008)) (quotation marks omitted); see also Awabdy v.
City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). However, as Evans further argues-and
Worley correctly concedes-Evans is entitled to absolute immunity for her witness testimony
given at trial. See Briscoe v. LaHue, 460 U.S. 325 (1983); Burns v. Cty. of King, 883 F.2d 819,
822 (9th Cir. 1989). Therefore, the court is limited to analyzing Worley's claim based on Evans's
pre-trial investigatory statements.
Accordingly, Evans next points to facts that undermine Worley's allegation that the
video evidence was fabricated. Specifically, Worley admitted that he and AD would "make
videos of [them]selves together doing silly father/daughter type things ... quite often." (Johnson
Deel., Ex. 2 at 60:12-21 ("Worley Dep.").) When asked during deposition whether Worley and
his children would "peck" each other on the lips, defined as "briefly leaning [their] heads
together, lips touching, making a kissing noise, and then separating," Worley answered that
"[y]es, it would occur from time to time," but "it was only as we were saying good-bye." (Id. at
61:11-22; see also Snyder Deel., Ex. G at 12:7-17 ("AD Dep.") (AD describing "a peck on the
lips" the same way).)

OPINION AND ORDER - 15

In an August 2012 interview with DHS, ADreportedthat Worley would take videos and
post them on the internet through a social media app. (AD Interview 6.) When asked if shelikecfbeing in the videos, AD responded "it's fun ... it's like, niess around in the car and we'll be
singing and stuff and just goofing around." (Id. at 7.) When asked about the driving-to-school
video specifically, AD asked "when we were singing in the car?" (Id. at 6.) AD later
acknowledged that Worley kissed her on the lips in the video and asked Be1irand, "[i]s that
unusual?" (Id. at 21.) She reported that kissing on the lips, cheek, and head were normal ways of
showing affection in her family. (Id. at 14.) When asked during deposition "if someone told you
that there was a video that existed ... at one point in time of you and Mr. Worley ... dropping
you off at school where you were singing and being silly and then as you were leaving you gave
him a peck good-bye, would that seem like ... that could have happened," AD responded in the
affirmative. (AD Dep. 12:18-13:6.) Furthermore, Bertrand and Chambers specifically recall
seeing the driving-to-school video shortly after Evans found it on the internet, and Bertrand
remembers seeing at least one other internet video of Worley, although she does not recall the
details of the video(s). (Bertrand Deel., ECF 80, at 2; Chambers Dep. 27:2-25, 31 :10-18.)
Worley does not address Evans's argument or the admissions made by himself and AD
regarding their conduct in the videos. Instead, Worley baldly asserts that "[ s]uch videos never
existed." (Pl.'s Resp. 16) 5 To the extent Worley is contesting Evans's characterization of his
conduct, his claim fails, because "questions of tone or characterization" do not equate to
fabricated evidence. Costanich, 627 F.3d at 1113.

5

At oral argument, however, Worley's counsel conceded the driving-to-school video existed.
Nonetheless, counsel reiterated Worley's disagreement with Evans's description of the kiss
good-bye as inappropriate and her opinion that the videos showed Worley engaging in sexual
grooming-type behaviors;
OPINION AND ORDER - 16

Furthermore, Worley's assertion that Evans fabricated the existence of the videos is
unavailing. Worley has failed to "go beyond the pleadings" and "designate 'specific facts
showing that there is a genuine issue for trial."' Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.
56(e)). Although the court must "view the facts and draw reasonable inferences in the light most
favorable to the party opposing the summary judgment motion," Scott v. Harris, 550 U.S. 372,
378 (2007) (citation omitted), Worley "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586.
Worley's conclusory denial of the existence of the videos, which objectively depicted conduct
that he and AD have admitted to under oath, does not create a genuine issue of material fact. See
F. TC. v. Stefanchik, 559 F .3d 924, 929 (9th Cir. 2009) ("In order to avoid summary judgment, a

non-movant must show a genuine issue of material fact by presenting affirmative evidence from
which a jury could find in his favor. A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary judgment.") (citations omitted)
(emphasis in original). And, given the evidence substantiating that the videos existed, the fact
that they were never produced at trial does not support the inference that Evans invented them.
Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
Finally, assuming for the sake of argument that the videos never existed and Evans
completely made-up the events she described, summary judgment would nevertheless be
warranted because Worley cannot establish that the deliberately fabricated evidence was the
cause in fact of the criminal charges brought against him. Spencer, 857 F.3d at 798. Worley's
unsupported assertion that Evans's fabricated statements were "clearly instrumental in the

OPINION AND ORDER - 17

initiation of criminal proceedings" strains credulity beyond the-breaking point. (PL's Resp. 16:) The charges filed against Worley inTillamook and Deschutes Counties were based entirely on HL and SW' s allegations that Worley sexually abused them, and the conduct in the videos
between AD and Worley was not included in any of the criminal charges brought against
Worley. (Pl.'s Compl. 14-16.)
Finally, there is no reasonable inference that Evans lying to Davis about AD reporting
Worley touched her on the thigh could have been the cause in fact of charges being brought
against Worley. No reasonable jury could find that, but for Evans's statements concerning the
videos, Worley would not have been subjected to criminal charges based solely on HL and SW's
allegations. See 1vfatsushita Elec. Indus. Co., Ltd., 475 U.S. at 587. Therefore, the court grants
Evans's motion for summary judgment as to Worley's claim of deliberate fabrication regarding
the internet videos.
II.

March 25, 2016 Affidavit
Worley claims Evans made false and misleading statements in her March 25, 2016

affidavit, stating that "DHS has not been able to gain cooperation from the family to ensure
safety of the children." (Evans Aff. 1.) Worley further alleges that Evans falsely claimed in her
affidavit "that she did not know where JW and JW were." (Pl.'s Compl. 20; accord Pl.'s Resp.
18.)
Plaintiffs have "a Fourteenth Amendment due process right to be free from deliberately
fabricated evidence in a civil child abuse proceeding." Costanich, 627 F3d at 1115. This is also
referred to as a claim for judicial deception. See Chism v. Wash. State, 661 F.3d 380, 386 (9th
Cir. 2011). For a judicial deception claim to survive summary judgment, a plaintiff "must make
(1) a 'substantial showing' of deliberate falsehood or reckless disregard for the truth, and (2)

OPINION AND ORDER - 18

establish that but for the dishonesty, the challenged action would not have occuned. If a plaintiff
- satisfies these requirements, 'the matter should go to trial."' Butler v. Elle, 281 F.3d 1014, 1024
(9th Cir. 2002) (citation omitted); see also Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir.
2009), vacated in part, 563 U.S. 692 (2011), and vacated in part, 661 F.3d 1201 (9th Cir. 2011).
"Materiality is for the court, state of mind is for the jury." Id. (citing Hervey v. Estes, 65 F.3d
784, 789 (9th Cir. 1995)).
As a preliminary matter, Evans never claimed "she did not know where the children
were"; no such statement appears in her affidavit. (See Evans Aff.) Thus, any claim based on that
enoneous allegation fails.
Evans first argues that her perception of Worley's cooperation "amounts to a subjective
characterization and not an 'actual misrepresentation."' (Defs.' Mot. 11 (quoting Costanich, 627
F.3d at 1113.) Given Cohen's cooperation with Evans on behalf of his client Worley, their
agreement that the children would stay with Rasey for the evening, and the fact that two DHS
workers later confirmed that the children were with Rasey, the court finds whether Evans made
deliberate misrepresentations in the affidavit is a disputed issue of material fact. Accordingly, the
comi declines to grant Evans summary judgment on that basis.
Evans next argues that her statements in the affidavit were immaterial as a matter of law.
To determine whether a false statement was material, "the comi purges those statements and
determines whether what is left justifies issuance of the warrant." Ewing v. City of Stockton, 588
F.3d 1218, 1224 (9th Cir. 2009). A review of the affidavit establishes that Evans's statements
were immaterial to the issuance of the wanant for protective custody for the same reasons that
Referee Herzog and Judge Hehn affirmed the original protective custody order. (See Johnson
Deel., Ex. 3 at 49-50, Ex. 5 at 86-88, Ex. 6 at 2; Deel. of Craig Johnson, ECF No. 107, Ex.10.)

OPINION AND ORDER - 19

Specifically, Worley 1 s then-pending criminal sex-abuse charges in Deschutes County, Worley's
previous history of "founded" allegations by DHS, Davis's failure to appreciate the risk Worley
posed to the children, SW's allegations made after Evans closed her 2012 assessment, and
DHS's need for adequate time to assess the safety of the children supported the juvenile comi's
finding of probable cause to issue the protective custody warrant. Evans included those reasons
in her original affidavit. (Evans Aff. 1-3.) Accordingly, the court grants Evans's motion for
summary judgment because her allegedly false statements in the affidavit were immaterial to the
issuance of the protective custody order. 6
Conclusion

Evans's Motion (ECF No. 79) for Summary Judgment is GRANTED and this action is
DISMISSED with prejudice.

IT IS SO ORDERED

.1/

DATED this-----'--------'--"'_day of January, 2019.

States Magistrate Judge

6

Because summary judgment in Evans's favor is warranted on the issue of materiality, the court
need not address her arguments based on issue preclusion. (See Defs.' Mot. 13-16.)
OPINION AND ORDER - 20