Worley v. Brewer et al

Filing 50

OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendants' Motion 30 . Signed on 7/5/2017 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMES WORLEY,
Plaintiff,
v.

3:16-cv-02412-BR
OPINION AND ORDER

MICHELLE BREWER; ELIJAH
CHAMBERS; JENNIFER EVANS; and
TILLAMOOK COUNTY, a political
subdivision of the State of
Oregon,
Defendants.
DANIEL SNYDER
CARL POST
JOHN DAVID BURGESS
Law Offices of Daniel Snyder
1000 S.W. Broadway, Suite 2400
Portland, OR 97205
[phone]
Attorneys for Plaintiff
ELLEN F. ROSENBLUM
Attorney General
STEVEN M. LIPPOLD
Chief Trial Counsel
SHARIA MAYFIELD
CRAIG M. JOHNSON
Assistant Attorneys General
Department of Justice
1162 Court Street N.E.
Salem, OR 97301
[phone]
Attorneys for Defendants Brewer, Chambers, and Evans
BROWN, Judge.
This matter comes before the Court on the Motion (#30) to
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Dismiss filed by Defendants Michelle Brewer, Elijah Chambers, and
Jennifer Evans.1
For the reasons below, the Court GRANTS in part and DENIES
in part Defendants’ Motion.

BACKGROUND
I.

Factual Background
The following summary of facts is taken from Plaintiff James

Worley’s Complaint and construed in the light most favorable to
Plaintiff for purposes of this Motion.
In 2000 Plaintiff married Heather Laughlin.

Laughlin had a

minor daughter, HL, from a prior marriage to Kenneth Cole.

In

January 2002 Plaintiff and Laughlin had a son, SW, who lived with
Plaintiff and Laughlin in Deschutes County, Oregon.
In 2003 Laughlin filed a separation action against Plaintiff
in Deschutes County.

In September 2006 Laughlin filed a

divorce action against Plaintiff in Lane County, Oregon.

On

September 19, 2006, the Lane County Circuit Court entered a
Judgment of Dissolution dissolving the marriage of Plaintiff and
Laughlin.

Following the divorce, Plaintiff’s minor son, SW,

lived in Lane County with Laughlin and her daughter HL.
Plaintiff had regular visitation with SW and HL.
In March 2008 Plaintiff married Joanne Davis.
minor daughter, AD, from a prior marriage.

1

Davis had a

Plaintiff and Davis

On April 24, 2017, Plaintiff dismissed Defendant Tillamook
County.
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have two children together:

a son, JW, and a daughter, JW.

Shortly after Plaintiff’s marriage to Davis, HL told Davis that
Plaintiff was having an affair with another woman.
In 2009 HL began seeing a psychotherapist and was treated
for about three years.

During that time HL did not make any

claims that Plaintiff had sexually abused her.
In February 2012 Plaintiff and his family moved to Gresham,
Oregon.

At that time SW, Plaintiff’s son by Laughlin who was

living with Laughlin and HL in Lane County, told Plaintiff he
wanted to live with Plaintiff and Davis.

When HL learned SW

would possibly move, HL became upset and stopped visiting
Plaintiff.

HL did not have any further contact with Plaintiff

after February 12, 2012.
On July 12, 2012, HL told Laughlin, her mother, and Cole,
her biological father, that Plaintiff had sexually abused her.
On July 19, 2012, Laughlin took HL to the Oregon State
Police (OSP) in Lane County and spoke with Defendant Elijah
Chambers, a detective.

Detective Chambers interviewed HL and

Laughlin and directed them to go to “Kids FIRST,” a child-abuse
assessment center, for evaluation.

Detective Chambers also

requested a medical examination of HL.
During the interview at Kids FIRST HL stated Plaintiff had
intimately kissed her and touched her breast and vaginal area
through her clothing.

That same day Defendant Jennifer Evans, a

caseworker with Oregon Department of Human Service (DHS) in
Gresham, Oregon, began an investigation regarding the safety of
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Plaintiff’s three children (SW, JW, and JW) who were then living
with Plaintiff and Davis in Gresham.

Evans, accompanied by

Gresham police officers, went to Plaintiff’s home in Gresham,
informed Plaintiff of HL’s allegations, and required Plaintiff to
move out of the house.

Evans prohibited Plaintiff from having

unsupervised contact with his children.
On July 20, 2012, Evans called Davis and told her that Evans
had seen a video on the internet of Plaintiff kissing Davis’s
daughter, AD, on the lips and putting his hand on her thigh.
Evans also stated Davis’s daughter had told Evans that Plaintiff
put his hand on her thigh.

Later AD denied making that statement

to Evans.
On July 24, 2012, HL had a medical examination and again
stated Plaintiff had touched her on the outside of her clothing.
There was not any physical evidence of sexual abuse, and HL’s
hymeneal tissue was intact.
On September 21, 2012, Plaintiff was interviewed by Chambers
and Evans.
On November 21, 2012, Plaintiff was allowed to return home.
On May 1, 2013, almost a year after HL’s first abuse
assessment, HL disclosed during another interview at Kids FIRST
that Plaintiff “had intercourse with her over a hundred times.”
Detective Chambers participated in this interview.
On May 21, 2013, Evans testified in a family court hearing
in Lane County that she had seen a YouTube video of Plaintiff
driving his children to school unsupervised before a protective
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plan was in place.
On August 20, 2013, in another family court hearing
regarding Plaintiff’s visitation with SW, the Lane County court
concluded there was not any evidence of abuse and that Plaintiff
could have contact with SW.

HL was apparently upset about the

court’s decision.
On August 25, 2013, Plaintiff went to pick up SW for a
planned family vacation, and SW refused to go with Plaintiff.
On December 11, 2013, Plaintiff received a letter from DHS
restricting him from visiting SW at Laughlin’s home in Eugene,
Oregon, and advising Plaintiff that he could only have limited
contact with SW.
On June 27, 2014, Laughlin took HL and SW to Kids FIRST for
interviews.

This was SW’s first interview at Kids FIRST.

Although Detective Chambers was present, he did not participate
in the interviews.

HL and SW disclosed they had seen Plaintiff

having sex with an adult female in their presence.

Neither

Detective Chambers nor Defendant Michelle Brewer, another
detective with OSP, investigated this claim.
On October 27, 2014, HL and SW had another interview with
Kids FIRST.

Detective Chambers again attended this interview.

HL merely disclosed, based on dreams and flashbacks of memories,
that everywhere they had lived Plaintiff had abused her, which
allegedly included assault and painful sexual penetration.
On December 17, 2014, Plaintiff was indicted by a grand jury
in Deschutes County on numerous counts of felony rape and sex
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abuse based on the statements of HL and SW.

On December 30,

2014, Plaintiff was arrested at his home in Gresham pursuant to
an arrest warrant issued in the Deschutes County case.
On January 23, 2015, Plaintiff was released from jail after
posting bond, but he was monitored while on release.
On April 17, 2015, Plaintiff was charged with additional
sex-abuse charges in Tillamook County.

On April 20, 2015, he was

again arrested at his home in Gresham.

Plaintiff remained in

custody on these charges until trial.
On February 1, 2016, Plaintiff’s criminal trial began in
Tillamook County.

Both HL and SW testified.

During the trial

Evans testified about the video that she had seen on the internet
in July 2012 depicting Plaintiff kissing AD, Davis’s daughter,
and putting his hand on her thigh.

Plaintiff contends this

testimony and Evan’s prior statements about the video were false.
On March 7, 2016, the jury found Plaintiff was not guilty of
five of the charges.

Plaintiff was released from custody, but he

remained on house arrest until the Tillamook County District
Attorney dismissed the remaining charges.
On March 24, 2016, Evans told Plaintiff that she received a
call on their “hotline” that Plaintiff was back home and that his
children were in danger.

Plaintiff alleges Evans knew the

children were temporarily staying at another location and spoke
to Plaintiff’s attorney about the safety of the children.

On

March 25, 2016, Evans submitted an affidavit to the Multnomah
County Juvenile Court in support of her request for a warrant to
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remove Plaintiff’s minor children from the home.

Evans stated in

her affidavit that she did not know where the children were and
that Plaintiff was not being cooperative.

Plaintiff contends

Evan’s representations in the affidavit were knowingly false and
resulted in the permanent relocation of Plaintiff’s children.
On May 27, 2016, the Deschutes County District Attorney
obtained a warrant for Plaintiff’s arrest for allegedly violating
the terms of his release agreement.

Plaintiff surrendered and

was held in custody until June 9, 2016.

After his release

Plaintiff remained on house arrest until April 2017.2
II.

Procedural Background
On December 30, 2016, Plaintiff filed his Complaint (#1) in

this Court in which he brings the following claims under
42 U.S.C. § 1983 against Defendants:

(1) violation of

Plaintiff’s Fourteenth Amendment rights to procedural and
substantive due process, (2) violation of Plaintiff’s Fourth
Amendment right to be free from unreasonable search and seizure,
(3) and “broad-based conspiracy” to violate Plaintiff’s civil
rights.

Plaintiff also brings state-law claims against

Defendants for false arrest, malicious prosecution, and
negligence.
Defendants move to dismiss each of Plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) on the
grounds that Plaintiff fails to plead facts sufficient to support

2

Plaintiff does not allege any resolution of the Deschutes
County case.
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his claims, and, in any event, Defendants are entitled to
qualified immunity.
In his Response to Defendants’ Motion Plaintiff concedes his
First Claim states only a substantive due-process, maliciousprosecution claim and does not include a procedural due-process
claim.

In his Response Plaintiff also dismisses his Third Claim

for conspiracy and Sixth Claim for negligence.

Plaintiff

otherwise opposes Defendants’ Motion to Dismiss.3

STANDARDS
To survive a motion to dismiss a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
for relief that is plausible on its face.”
Twombly, 550 U.S. 544, 545 (2007).

Bell Atlantic v.

A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.

Id. at 556.

“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)(quoting Twombly, 550 U.S. at 546).

When a

complaint is based on facts that are “merely consistent with” a
2

Plaintiff also contends Defendants failed to meaningfully
confer before filing their Motion. The Court has reviewed the
submissions of the parties in this regard and concludes
Defendants made a sufficient effort to comply with the
requirements of LR 7-1 in good faith.
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defendant's liability, it “stops short of the line between
possibility and plausibility of entitlement to relief.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
Atlantic, 550 U.S. at 555-56.

See also Bell

The court must accept as true the

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

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

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

Iqbal, 556 U.S. at 678 (quoting Twombly, 550
See also Federal Rule of Civil Procedure 8(a)(2).

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

A complaint also does not

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

Id. at 557.

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

Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th

Cir. 2007)(citing Jacobson v. Schwarzenegger, 357 F. Supp. 2d
1198, 1204 (C.D. Cal. 2004)).

A court, however, "may consider a

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

Id. (quoting Parrino v. FHP,

Inc., 146 F.3d 699,706 (9th Cir. 1998), superseded by statute on
other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676
(9th Cir. 2006)).

DISCUSSION
As noted, Defendants move to dismiss each of Plaintiff’s
claims for failure to state a claim pursuant to Rule 12(b)(6).

I.

Section 1983
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
To establish a claim under § 1983, a plaintiff must allege

and prove (1) the conduct complained of was committed by a person
acting “under color of state law” and (2) the conduct deprived
the plaintiff of a constitutional right.

Long v. Cnty. of L.A.,

442 F.3d 1178, 1185 (9th Cir. 2006)(citing West v. Atkins, 487
U.S. 42, 48 (1988)).

In order to be individually liable under

§ 1983, an individual must personally participate in an alleged
rights deprivation.
2010).

Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.

In addition, the plaintiff “must also demonstrate that

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the defendant’s conduct was the actionable cause of the claimed
injury.”

Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir.

2008).
II.

Plaintiff’s Claim under § 1983 for Violation of Substantive
Due Process
In his First Claim under § 1983 Plaintiff alleges Defendants

violated his Fourteenth Amendment substantive due-process rights
by actions that led to multiple criminal and civil actions
against Plaintiff.
Defendants, however, contend Plaintiff fails to allege facts
sufficient to support the substantive due-process violation in
his First Claim, and, in any event, such a claim against
Defendants is barred by qualified immunity.
In response Plaintiff contends he has sufficiently stated a
substantive due process claim for malicious prosecution and
Defendants are not entitled to qualified immunity.
A.

Substantive Due Process Violation:
Prosecution

Malicious

The Ninth Circuit has held that “malicious prosecution
with the intent to deprive a person of equal protection of the
law or otherwise to subject a person to denial of constitutional
rights is cognizable under § 1983.”

Awabdy v. City of Adelanto,

368 F.3d 1062, 1069 (9th Cir. 2004).
Claims alleging violations of substantive due process
generally challenge allegedly "arbitrary, wrongful government
actions 'regardless of the fairness of the procedures used to

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implement them.'"

Hess v. Bd. of Parole and Post-Prison

Supervision, 514 F.3d 909, 913 (9th Cir. 2008)(quoting Zinermon
v. Burch, 494 U.S. 113, 125 (1990)).

See also Arguijo v. Dennis,

No. 07-CV-1908-BR, 2009 WL 393957, at *3 (D. Or. Feb. 2,
2009)(same).
In Freeman v. City of Santa Ana the Ninth Circuit
explained malicious prosecution pursuant to § 1983 as follows:
Malicious prosecution, by itself, does not
constitute a due process violation; to prevail
[the plaintiff] must show that the defendants
prosecuted [him] with malice and without probable
cause, and that they did so for the purpose of
denying [him] equal protection or another specific
constitutional right. Bretz v. Kelman, 773 F.2d
1026, 1031 (9th Cir. 1985)(en banc); Cline v.
Brusett, 661 F.2d 108, 112 (9th Cir. 1981).
68 F.3d 1180, 1189 (9th Cir. 1995).

A claim of malicious

prosecution under § 1983 consists of two sub-parts:

a state-law

malicious prosecution claim and the intent by the defendants to
deprive the plaintiff of a constitutional right.

Mata-Gonzalez

v. Monico, No. 3:11-cv-00260, 2013 WL 5476952, at *8 (D. Or.,
Sep. 27, 2013).
In Oregon the elements of a malicious-prosecution claim
are:

(1) the institution or continuation of criminal

proceedings, (2) by or at the insistence of the defendant,
(3) termination of such proceedings in the plaintiff’s favor,
(4) malice, (5) lack of probable cause for the proceedings, and
(6) injury or damages as a result.

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Miller v. Columbia County,

282 Or. App. 348, 360 (2016).
The decision to pursue a criminal action is generally
made based on an independent determination by a prosecutor, and
thus precludes liability for those who participated in the
investigation.

Blankenhorn v. City of Orange, 485 F.3d 463, 482

(9th Cir. 2007)(citing Smiddy v. Varney, 665 F.2d 261 (9th Cir.
1981).

The presumption of prosecutorial independence, however,

does not bar a subsequent § 1983 claim against those who
knowingly provided misinformation, concealed exculpatory
evidence, or otherwise engaged in wrongful or bad faith conduct
that was actively instrumental in causing the initiation of legal
proceedings.

Awabdy, 368 F.3d at 1067.

Defendants contend Plaintiff’s factual allegations that
Defendants refused to address medical evidence, failed to
investigate inconsistencies and exculpatory evidence, failed to
disclose exculpatory evidence, failed to provide requested
information, arbitrarily incarcerated Plaintiff, and lied
regarding the existence of evidence are insufficient on their
face to support a § 1983 claim for violation of substantive due
process.
Plaintiff, in turn, contends his factual allegations
establish the absences of probable cause to support Defendants’
action because the information Defendants relied on was
contradicted by prior testimony, fabricated by the alleged
victims or state police, or physically impossible and, therefore,
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the information was unreliable and Defendants’s reliance thereon,
in turn, constitutes malice.

Specifically, Plaintiff alleges in

his Complaint that the wrongful and improper actions of
Defendants during their investigations led to the filing of
criminal proceedings against Plaintiff in Deschutes County in
December 2014 and in Tillamook County in April 2015.

Plaintiff

alleges Defendants failed to act properly during their
investigations, and Plaintiff alleges Evans lied in her testimony
during the Tillamook County criminal trial.

To further support

his position, Plaintiff points out that he was found not guilty
following a jury trial in the Tillamook County case in March
2016.4

Thus, Plaintiff argues there was not probable cause for

the criminal charges or any of the proceedings against him, and,
as a result, he suffered injury and damages from Defendants’
violation of his substantive due-process rights.
In Deveraux v. Abbey the Ninth Circuit found “there is
a clearly established constitutional due process right not to be
subjected to criminal charges on the basis of false evidence that
was deliberately fabricated by the government.”
1074-75 (9th Cir. 2001).

263 F.3d 1070,

The court noted:

We are also persuaded, however, that there is no
constitutional due process right to have child
witnesses in a child sexual abuse investigation
interviewed in a particular manner, or to have the

2

Plaintiff does not allege any resolution of the Deschutes
County case.
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investigation carried out in a particular way.
. . . Consequently, mere allegations that
Defendants used interviewing techniques that were
in some sense improper, or that violated state
regulations, without more, cannot serve as the
basis for a claim under § 1983.
263 F.3d at 1075.
With the exception of Plaintiff’s allegation that Evans
lied during the course of his criminal trial in Tillamook County,
Plaintiff does not allege Defendants fabricated any evidence that
led to the criminal charges against him.

Instead, Plaintiff’s

allegations primarily relate to the way in which Defendants
conducted their investigation, including the interviews of
alleged victims.

For example, Plaintiff asserts Detectives

Brewer and Chambers failed to use a narrative approach when
interviewing HL and SW, failed to pose questions that explored
alternative theories as required by published guidelines for
abuse investigations, failed to consider “self-evident legitimacy
of theories” regarding the influence of Laughlin on the minor
victims, did not ask certain questions or explore alternative
theories regarding the alleged victims’ claims, and engaged in a
host of other failures and shortcoming during the investigation.
On this record the Court concludes Plaintiff has stated
a substantive due-process claim as to Evans based on Plaintiff’s
allegations of Evans’s false testimony, but Plaintiff has
otherwise failed to state a claim against Detectives Brewer and
Chambers that is plausible on its face.
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Accordingly, the Court

grants Defendants’ Motion to Dismiss Plaintiff’s First Claim only
as to Detectives Brewer and Chambers and denies Defendants’
Motion as to Evans based on her allegedly false testimony.
B.

Qualified Immunity
Qualified immunity shields defendants from liability

under § 1983 “for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”

Deveraux, 263 F.3d

at 1074 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme
Court set out a two-step analysis for determining whether a
defendant is protected by qualified immunity.

First, the court

must determine whether, ‘[t]aken in the light most favorable to
the party asserting injury, . . . the facts alleged show the
officer’s conduct violated a constitutional right.”

Id. at 201.

Second, the court must determine “whether [that] right is clearly
established” to the degree that “it would be clear to a
reasonable officer that his conduct was unlawful.”

Id. at 202.

In Pearson v. Callahan the Supreme Court held the sequence of
steps in Saucier “should not be regarded as mandatory.”
555 U. S. 223, 236 (2009).
Here Plaintiff alleges Evans lied during the course of
Plaintiff’s criminal trial in Tillamook County regarding the
existence of certain evidence.

In Devereaux the court concluded

a person has a “clearly established constitutional due process
right not to be subjected to criminal charges on the basis of
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false evidence that was deliberately fabricated by the
government.”

263 F.3d at 1074-75.

Thus, on the basis of Devereaux, Saucier, and Pearson,
Plaintiff has established a prima facie case that Evans violated
Plaintiff’s constitutional right to due process and that Evans
should have known her conduct was unlawful.
Accordingly, for purposes of this Motion to Dismiss,
the Court concludes qualified immunity does not preclude
Plaintiff from bringing a § 1983 claim for malicious prosecution
against Evans based on her allegedly false testimony.
III. Plaintiff’s Claim for Unreasonable Search and Seizure under
the Fourth Amendment
In his Second Claim pursuant to § 1983 Plaintiff alleges
Defendants violated Plaintiff’s Fourth Amendment right to be free
from unreasonable searches and seizures.

Plaintiff contends his

multiple arrests and imprisonments were based on information that
Defendants knew or should have known was false.
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]”

U.S. Const. Amend. IV.

“[A]n arrest is lawful . . . only if it is accompanied by
probable cause to believe that the arrestee has committed, or is
committing, an offense.”

Conner v. Heiman, 672 F.3d 1126, 1132

(9th Cir. 2012)(citation and quotation marks omitted).

“Probable

cause to arrest exists when officers have knowledge or reasonably
trustworthy information sufficient to lead a person of reasonable
caution to believe that an offense has been or is being committed
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by the person being arrested.”
1067, 1072 (9th Cir. 2007).

United States v. Lopez, 482 F.3d

“Whether probable cause exists

depends ‘on the totality of facts [.]’”

Sialoi v. City of San

Diego, 823 F.3d 1223, 1232 (9th Cir. 2016)(quoting Lopez, 482
F.3d at 1073).

Although probable cause does not mean law-

enforcement officers must support the seizure of an individual
with “certainty or even a preponderance of the evidence,”
officers must be able to conclude there is a “fair probability”
that the individual committed a

crime (United States v. Gourde,

440 F.3d 1065, 1069 (9th Cir. 2006)) and those officers “may not
disregard facts tending to dissipate probable cause” (Sialoi, 823
F.3d at 1232).

Finally, although law-enforcement officers do not

need “conclusive evidence of guilt” to have probable cause to
seize an individual, “mere suspicion, common rumor, or even
strong reason to suspect” that a plaintiff engaged in criminal
conduct is not enough to establish probable cause.

Ramirez v.

City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009)(citation
and quotation marks omitted).

See also Harper v. City of Los

Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)(citation and
quotation marks omitted).
Defendants move to dismiss Plaintiff’s Second Claim on the
grounds that they were not directly responsible for Plaintiff’s
arrests because they did not arrest Plaintiff.

In any event,

Defendants assert they acted with probable cause.

Defendants,

therefore, contend the Court must make the threshold
determination whether there was probable cause to arrest
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Plaintiff as a matter of law.

Plaintiff did not respond to this

part of Defendants’ Motion.
Defendants rely on Miller v. Columbia County, 282 Or. App.
348 (2016) to support their position.

In Miller the plaintiff

was arrested by a sheriff’s deputy for menacing and pointing a
gun at another person following a 9-1-1 call from a neighbor who
reported the plaintiff had threatened him.

The plaintiff brought

a civil action for malicious prosecution and false arrest after
the state decided not to pursue the criminal charges.

At the

civil trial the plaintiff’s theory was that the deputy had a duty
to investigate whether she acted in self-defense before arresting
her.

According to the plaintiff, if the deputy had properly

investigated the incident, he would have determined the plaintiff
had not committed any crime and, therefore, her arrest was not
lawful.

The Oregon Court of Appeals noted it was the trial

court’s duty to determine as a matter of law whether the deputy
had probable cause to arrest the plaintiff and whether the deputy
had a duty to investigate further to rule out all defenses.
at 355-56.

Id.

The court concluded:
An officer is not required – through further
investigation or otherwise – to eliminate all possible
lawful explanations for conduct that reasonably appears
to violate the law.

Id. at 358 (citations omitted).
Here Plaintiff makes a similar argument.

Plaintiff contends

he was arrested based on information provided by the alleged
victims that Defendants “knew or should have known was false
based on reasonable investigation and further consideration.”
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As

noted by the Miller court, however, Defendants are not required
to eliminate all possible lawful explanations for Plaintiff’s
alleged conduct with regard to the child victims.

Based on the

information that Defendants had received as alleged in the
Complaint, the Court concludes it was reasonable for Defendants
to conclude that Plaintiff had violated the law.
On this record the Court concludes there was probable cause
to arrest Plaintiff and to conduct any related search and seizure
of Plaintiff.

Consequently, the Court also concludes Plaintiff

has failed to state a claim that is plausible on its face.
Accordingly, the Court grants Defendants’ Motion to Dismiss
Plaintiff’s Second Claim for unreasonable search and seizure
under the Fourth Amendment.
IV.

Plaintiff’s Claim for False Arrest
In his Fourth Claim Plaintiff alleges Detectives Brewer and

Chambers falsely arrested him.
A false-arrest claim requires proof of the following four
elements:

(1) the defendant confined the plaintiff, (2) the

confinement was intentional, (3) the plaintiff was aware of the
confinement, and (4) the confinement was unlawful.

Hiber v.

Cred. Collection Svcs., 154 Or. App. 408, 413, rev. denied, 327
Or. 621 (1998).

Principles of joint liability apply to the

issuance of an arrest warrant only if the party seeking the
warrant acts in bad faith, intentionally misrepresents facts to a
judge, or otherwise acts with malice.

Id. at 410.

Detectives Brewer and Chambers again contend they did not
20 - ORDER

arrest or confine Plaintiff and, in any event, there was probable
cause to arrest Plaintiff.
Plaintiff, however, contends probable cause did not exist
for Plaintiff’s arrest, Detectives Brewer and Chambers are liable
for the false arrest, and Plaintiff should have the opportunity
to conduct discovery on the probable-cause issue.
Plaintiff alleges in his Complaint that Gresham police
officers arrested him on December 30, 2014, pursuant to a
Deschutes County arrest warrant; Gresham police officers also
arrested him on April 20, 2015, pursuant to a Tillamook County
arrest warrant; and Plaintiff voluntarily surrendered on May 27,
2016, on an arrest warrant issued from Deschutes County for
allegedly violating his release agreement.

Although Plaintiff

alleges Detectives Brewer and Chambers caused him to be arrested
and jailed, Plaintiff does not allege any facts that show
Detectives Brewer or Chambers were personally involved in the
initiation or execution of these warrants, that they
intentionally confined him, nor that they intentionally acted in
bad faith or with malice.
As noted, the Court has concluded Plaintiff’s allegations
that Detectives Brewer and Chambers failed to conduct their
investigation properly are insufficient to constitute an
allegation of deliberate fabrication of evidence; there is
evidence to support a finding of probable cause that Plaintiff
had violated the law; and, therefore, the arrests were lawful in
any event.
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On this record the Court concludes Plaintiff has failed to
state a claim plausible on its face that Detectives Brewer and
Chambers falsely arrested him.

Accordingly, the Court grants

Defendants’ Motion to Dismiss Plaintiff’s Fourth Claim for false
arrest.
V.

Plaintiff’s Claim for Malicious Prosecution under State Law
In his Fifth Claim Plaintiff alleges Detectives Brewer and

Chambers initiated and pursued a criminal prosecution against
Plaintiff with malice and without probable cause.
As noted, in Oregon the elements of a malicious prosecution
claim are:

(1) the institution or continuation of criminal

proceedings, (2) by or at the insistence of the defendant,
(3) termination of such proceedings in the plaintiff’s favor,
(4) malice, (5) lack of probable cause for the proceedings, and
(6) injury or damages as a result.

Miller at 360.

The existence

of probable cause is an absolute defense to malicious
prosecution.

Lassiter v. City of Bremerton, 556 F.3d 1049, 154-

55 (9th Cir. 2009).
As noted, the decision to pursue a criminal action is
generally made based on an independent determination by a
prosecutor, and thus precludes liability for those who
participated in the investigation.

Blankenhorn v. City of

Orange, 485 F.3d 463, 482 (9th Cir. 2007)(citing Smiddy v.
Varney, 665 F.2d 261 (9th Cir. 1981).

The presumption of

prosecutorial independence, however, does not bar a subsequent

22 - ORDER

§ 1983 claim against those who knowingly provided misinformation,
concealed exculpatory evidence, or otherwise engaged in wrongful
or bad faith conduct that was actively instrumental in causing
the initiation of legal proceedings.

Awabdy, 368 F.3d at 1067.

Here Plaintiff alleges the wrongful and improper actions of
Defendants during their investigation led to the filing of
criminal proceedings against him in Deschutes County in December
2014 and Tillamook County in April 2015.

Plaintiff points out in

March 2016 that he was found not guilty of some charges following
a jury trial in the Tillamook County case.

Plaintiff also

alleges Defendants acted with malice by failing to act properly
during their investigations; they did not have probable cause to
support the criminal charges or any of the proceedings against
him; and, as a result, Plaintiff suffered injury and damages.
The Court, however, has previously concluded Defendants had
probable cause to arrest Plaintiff.

Thus, on this record the

Court concludes Plaintiff has failed to state a claim for
malicious prosecution under state law that is plausible on its
face.

Accordingly, the Court grants Defendants’ Motion to

Dismiss Plaintiff’s Fifth Claim for malicious prosecution.
In summary, Plaintiff concedes his First Claim states only a
substantive due-process claim and does not include a procedural
due-process claim.

Plaintiff also voluntarily dismisses his

Third Claim for conspiracy and Sixth Claim for negligence.

As to

Plaintiff’s remaining claims, the Court concludes as follows:
23 - ORDER

Plaintiff’s First Claim pursuant to § 1983 for violation of his
substantive due process rights under the Fourteenth Amendment
adequately states a claim as to Defendant Evans only based on her
allegedly false testimony and is not barred by qualified immunity
and Plaintiff’s Second, Fourth, and Fifth Claims fail to state
claims that are plausible on their face based on the
determination that probable cause existed for Plaintiff’s arrest
and prosecution.

CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part Defendants’ Motion (#30) to Dismiss as follows:
1.

The Court GRANTS Defendants’ Motion to Dismiss as to

Plaintiff’s First Claim under § 1983 to the extent that Plaintiff
alleges a violation of his Fourteenth Amendment substantive dueprocess rights as to Defendants Brewer and Chambers only and
DISMISSES with prejudice that part of Plaintiff’s First Claim;
2.

The Court DENIES Defendants’ Motion to Dismiss as to

Plaintiff’s First Claim under § 1983 to the extent that Plaintiff
alleges a violation of his Fourteenth Amendment substantive dueprocess rights as to Defendant Evans based on her allegedly false
testimony;
3.

The Court GRANTS Defendants’ Motion to Dismiss as to

Plaintiff’s Second Claim under § 1983 for unreasonable search and
seizure in violation of his Fourth Amendment rights and DISMISSES

24 - ORDER

Plaintiff’s Second Claim with prejudice as to all Defendants;
4.

The Court GRANTS Defendants’ Motion to Dismiss as to

Plaintiff’s Third Claim for conspiracy and DISMISSES Plaintiff’s
Third Claim with prejudice as to all Defendants;
5.

The Court GRANTS Defendants’ Motion to Dismiss as to

Plaintiff’s Fourth Claim for false arrest and DISMISSES
Plaintiff’s Fourth Claim with prejudice as to all Defendants;
6.

The Court GRANTS Defendants’ Motion to Dismiss as to

Plaintiff’s Fifth Claim for malicious prosecution and DISMISSES
Plaintiff’s Fifth Claim with prejudice as to all Defendants; and
7.

The Court GRANTS Defendants’ Motion to Dismiss as to

Plaintiff’s Sixth Claim for negligence and DISMISSES Plaintiff’s
Sixth Claim with prejudice as to all Defendants.

All case-management deadlines previously set remain in
effect.
IT IS SO ORDERED.
DATED this 5th day of July, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

25- OPINION AND ORDER