Daley v. McKoy et al
Filing
40
Opinion and Order. The Court GRANTS Defendants' Motion (# 25 ) for Summary Judgment, DENIES as moot Defendants' Motion (# 37 ) to Strike, and DISMISSES this matter with prejudice. IT IS SO ORDERED. Signed on 5/31/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
WENDY DALEY,
Plaintiff,
v.
3:17-cv-00718-BR
OPINION AND ORDER
BRENDEN MCKOY, individually,
ZACH MAJORS, individually, and
WASHINGTON COUNTY,
Defendants.
MICHAEL E. ROSE
BETH CREIGHTON
Creighton & Rose, P.C.
300 Powers Building
65 S.W. Yamhill St.
Portland, OR 97204
(503) 221-1792
Attorneys for Plaintiff
CHRISTOPHER A. GILMORE
Senior Assistant County Counsel
Office of Washington County Counsel
161 N.W. Adams Ave., Suite 305
Hillsboro, OR 97124
(503) 846-8747
Attorney for Defendants
BROWN, Senior Judge.
This matter comes before the Court on the Motion (#25) for
Summary Judgment and the Motion (#37) to Strike filed by
1 - OPINION AND ORDER
Defendants Brenden McKoy, Zach Majors, and Washington County.
After reviewing the record the Court concludes the record is
sufficiently developed, and, therefore, oral argument is
unnecessary.
For the reasons that follow, the Court DENIES Defendants’
Motion to Strike, GRANTS Defendants’ Motion for Summary Judgment,
and DISMISSES this case with prejudice.
BACKGROUND
The following facts are taken from the Joint Statement of
Agreed Facts (#22) and the parties’ summary-judgment materials
and are undisputed unless otherwise indicated.
On October 14, 2015, at approximately 10:37 p.m., Washington
County Consolidated Communications Agency (WCCCA) received a
9-1-1 call from Kristen Cast1 who lives in Northwest Portland.
Cast told the 9-1-1 dispatcher that a woman was walking
around her house and that it was the same woman who was
photographed on her mother’s security camera walking around the
property of her mother, Phyllis Cast, in another part of Portland
the night before.
Cast described the suspect as a “woman in her
50s” [sic] and “wearing jeans” and a “cardigan” over her shirt.
Cast also described the vehicle driven by the woman as a “silvery
gray” vehicle and gave the dispatcher a license plate number of
“ZCA 002.”
This information was relayed to officers in the
field.
1
Kristen Cast is not a party to this lawsuit.
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Deputy McKoy, a Washington County Sheriff’s officer,
responded to Cast’s call, arrived at her residence at
approximately 10:47 p.m., and interviewed Cast about the
incident.
Cast told Deputy McKoy that she recognized the person
on her property as the person who was recorded on a security
camera video the evening before at the home of her mother in
Southwest Portland.
Kristin Cast also told Deputy McKoy that the
person on the video had backed into a vehicle owned by Dustin
Richard, her mother’s boyfriend, on her mother’s property.
Deputy McKoy contacted Richard by telephone and interviewed
him about the incident.
Richard confirmed there was security
camera video of someone on Phyllis Cast's property where his
vehicle had been parked the night before.
vehicle had been damaged.
He also confirmed his
Deputy McKoy also spoke to Phyllis
Cast, who said she found a female’s shoe that was left behind at
the scene and described it as a “brown wedge.”
In the meantime Plaintiff’s vehicle with the license plate
number reported by Kristin Cast was stopped by another Washington
County officer2 at the corner of N.W. Quail Hollow Drive and N.W.
Hawk Place, a few blocks from Kristin Cast’s residence.
The
vehicle was a dark blue Volvo station wagon.
At approximately 11:24 p.m., Deputy McKoy arrived at the
location where Plaintiff’s vehicle had been stopped.
2
He asked
In her Response to Defendants’ Motion Plaintiff identifies
Deputy Majors as the officer who pulled over her vehicle. Deputy
McKoy in his incident report and the parties’ in their Joint Statement
of Agreed Facts, however, identify Deputy Orozco as the officer who
stopped Plaintiff’s vehicle.
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Plaintiff to step out of her vehicle and questioned her about the
incident.
He then allowed Plaintiff to call her attorney.
Deputy McKoy inspected Plaintiff’s vehicle and took pictures
of the vehicle including the scratches on the back bumper.
He
also viewed the security camera video sent by Richard on an
iPhone belonging to Deputy Majors.
Deputy McKoy concluded
Plaintiff was the person in the security camera video based on
his personal observation of Plaintiff at the scene.
Deputy McKoy
conferred with Deputy Majors and Corporal Adam Rorick, and both
agreed there was probable cause for Plaintiff’s arrest.
At
approximately 11:36 p.m. Deputy McKoy arrested Plaintiff for
failure to perform the duties of a driver when she hit Richard’s
vehicle.
Deputy McKoy informed Richard that a suspect had been
detained, and Richard stated he wanted to “press charges.”
At approximately 11:55 p.m. Deputy McKoy transported
Plaintiff to the Washington County jail in Hillsboro, Oregon,
where she was booked and held for approximately three and a half
hours.
Because the alleged crime occurred in Multnomah County,
Deputy McKoy transported Plaintiff to the Multnomah County
Detention Center (MCDC) in Portland where she was held for
several hours before she was released.
On October 16, 2015, Plaintiff was arraigned on the charge
of Failure to Perform the Duties of a Driver in an Accident, to
which she entered a plea of “not guilty.”
The court continued
the matter to October 29, 2015.
On October 29, 2015, Plaintiff returned to court and learned
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the charges against her had been dismissed.
On May 8, 2017, Plaintiff filed a civil action against
Deputy McKoy, Deputy Majors, and Washington County.
In her
Complaint Plaintiff alleges a claim against Deputies McKoy and
Majors in their individual capacities pursuant to 42 U.S.C.
§ 1983 for violation of her Fourth and Fourteenth Amendment
rights to be free from arrest absent probable cause.
Plaintiff
also alleges state-law claims against Washington County for false
arrest and negligence.
On March 14, 2018, Defendants filed a Motion (#25) for
Summary Judgment.
On April 23, 2018, Defendants also filed a
Motion (#37) to Strike certain evidence offered by Plaintiff as
part of her Response to Defendants’ Motion.
STANDARDS
I.
Summary Judgment
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
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a material fact for trial.
. . . .
Id.
"This burden is not a light one
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
A “mere
disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
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The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
II.
Id.
Section 1983
Section 1983 provides:
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.
III. Oregon Tort Claims Act (OTCA), Oregon Revised Statutes
§§ 30.260, et seq.
Under the OTCA a public body is subject to civil action for
its own torts and those of its officers, employees, and agents
acting within the scope of their employment or duties.
DEFENDANTS’ MOTION (#25) FOR SUMMARY JUDGMENT
Deputies McKoy and Majors contend they are entitled to
summary judgment on Plaintiff’s § 1983 claim on the grounds that
they had probable cause to arrest Plaintiff for Failure to
Perform the Duties of Driver in an Accident, and, in any event,
Defendants are entitled to qualified immunity even if the Court
7 - OPINION AND ORDER
finds Defendants did not have probable cause.
Defendant
Washington County contends it is entitled to summary judgment on
Plaintiff’s state-law claims on the grounds that the deputies had
probable cause to arrest Plaintiff and Plaintiff’s negligence
claim against Washington County under the OTCA cannot be based on
the same conduct as Plaintiff’s Fourth Amendment claim.
Plaintiff, in turn, contends Defendants are not entitled to
summary judgment because (1) there is a genuine dispute of
material fact from which a reasonable juror could find the
Deputies lacked probable cause to arrest Plaintiff and
(2) qualified immunity does not bar Plaintiff’s claim as she was
arrested based on information that was insufficient to establish
probable cause.
Plaintiff also contends Washington County was
negligent based on the Deputies’ failure to exercise reasonable
care in their investigation and their erroneous identification of
Plaintiff as the perpetrator of the offense that resulted in her
arrest.
According to Plaintiff, therefore, Washington County is
liable for Plaintiff’s false arrest based on the disputed conduct
of the Deputies.
I.
Plaintiff’s § 1983 Claim Against Deputies McKoy and Majors
A.
Probable Cause
1.
Standards
A warrantless arrest requires probable cause under
the Fourth Amendment.
United States v. Lopez, 482 F.3d 1067,
1072 (9th Cir. 2007)(citing Michigan v. Summers, 452 U.S. 692,
700 (1981).
“Probable cause to arrest exists when officers have
8 - OPINION AND ORDER
knowledge or reasonably trustworthy information sufficient to
lead a person of reasonable caution to believe that an offense
has been or is being committed by the person being arrested.”
Id.
Alternatively, this court has defined probable
cause as follows: when “under the totality of
circumstances known to the arresting officers, a
prudent person would have concluded that there was
a fair probability that [the defendant] had
committed a crime.” United States v. Smith, 790
F.2d 789, 792 (9th Cir. 1986).
Lopez, 482 F.2d at 1072.
Law-enforcement officers are not
required “to believe to an absolute certainty, or by clear and
convincing evidence, or even by a preponderance of the available
evidence” that a suspect has committed a crime.
Id. at 1078.
See also Garcia v. Cty. of Merced, 539 F.3d 1206, 1209 (9th Cir.
2011).
The officer, however, must be able to conclude that there
is a “fair probability” that the suspect committed the crime.
United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006).
2.
Analysis
Plaintiff contends the evidence, viewed in the
light most favorable to her, presents a jury question as to
whether Deputies McKoy and Majors had probable cause to arrest
her.
Plaintiff argues the security camera video is unclear and
the images in the video do not resemble Plaintiff or her vehicle.
Plaintiff also argues the witness statements are unreliable
because none of the witnesses saw the vehicle collision.
Kristin Cast, however, identified the person on
9 - OPINION AND ORDER
her property as the person in her mother’s security camera video.
Kristin Cast also gave the dispatcher the license plate number of
the vehicle driven by the person who was on her property.
After
Plaintiff was stopped, Deputy McKoy saw evidence of damage to
Plaintiff’s vehicle on the rear bumper that supported a
reasonable inference that she had been in a collision of some
kind.
Deputy McKoy also interviewed Richard, who said the woman
in the video “backed up into his pickup” as she left the
property.
When Deputy McKoy viewed the security camera video on
Deputy Majors’s iPhone, he concluded Plaintiff was the person in
the video.
Deputy Majors and Corporal Rorik also viewed the
video and concluded Plaintiff was the person in the video.
Although the quality of the video is not crystal
clear, there are sufficient similarities between Plaintiff the
the person in the video to lead a reasonable officer to believe
that Plaintiff was the person in the video.
The Court notes it may be reasonable for an
officer to rely on the statements of persons with knowledge of an
incident even though they did not witness it first-hand.
See
Fuller v. M.G. Jewelry, 951 F.2d 1437, 1443-44 (9th Cir. 1991).
Thus, in light of the statements of Kristin Cast and Richard, the
confirming opinions of Deputy Majors and Corporal Rorik, and the
video, the officers had reasonably trustworthy information
sufficient to lead them to believe that Plaintiff was the person
in the video and had committed the offense.
Accordingly, on this record the Court concludes
10 - OPINION AND ORDER
Deputies McKoy and Majors did not violate Plaintiff’s Fourth
Amendment rights because they had probable cause to arrest
Plaintiff, and, therefore, Defendants are entitled to summary
judgment on Plaintiff’s § 1983 claim.
B.
Qualified Immunity
As noted, Deputies McKoy and Majors contend even if
they did not have probable cause to arrest Plaintiff, they are
entitled to qualified immunity.
1.
Standards
“The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009)(internal
quotation marks omitted).
Qualified immunity is an immunity from
being required to defend a § 1983 action.
Morales v. Fry, 873
F.3d 817, 822 (9th Cir. 2017)(citing Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)).
A public official is entitled to qualified
immunity unless:
(1) “the facts alleged, taken in the light most
favorable to the party asserting the injury, show that the
official’s conduct violated a constitutional right” and (2) the
right at issue “was clearly established ‘in light of the specific
context of the case’” at the time of the alleged misconduct.
Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100 (9th Cir.
2011)(citation omitted).
11 - OPINION AND ORDER
In the context of an unlawful arrest,
“the two prongs of the qualified immunity analysis can be
summarized as:
(1) whether there was probable cause for the
arrest; and (2) whether it is reasonably arguable that there was
probable cause for arrest — that is, whether reasonable officers
could disagree as to the legality of the arrest such that the
arresting officer is entitled to qualified immunity.”
Rosenbaum
v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011)(emphasis in
original).
A clearly established right is one that is
“sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”
Reichle
v. Howards, 566 U.S. 658, 664 (2012)(internal marks omitted).
The court need not identify “a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.”
U.S. 731, 741 (2011).
Ashcroft v. al-Kidd, 563
In other words, “[a]n officer ‘cannot be
said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable
official in the defendant’s shoes would have understood that he
was violating it.’”
Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018)(quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2023
(2014)).
“The dispositive question is whether the violative
nature of particular conduct is clearly established.”
v. Luna, 136 S. Ct. 305, 308 (2015).
In the context of a
warrantless arrest, the Court must resolve “whether the
12 - OPINION AND ORDER
Mullenix
circumstances with which [the particular officer] was confronted
. . . constitute[d] probable cause.”
Id. at 309.
Qualified immunity is meant to protect “all but
the plainly incompetent or those who knowingly violate the law.”
City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765,
1774 (2015).
2.
Analysis
Plaintiff contends, viewing the evidence in the
light most favorable to her, that the record establishes the
Deputies did not have probable cause to arrest her, and,
therefore, the Deputies did not have the right to arrest her and
violated her rights under the Fourth Amendment.
The Court, however, has concluded there was
probable cause to arrest Plaintiff.
Plaintiff, therefore, cannot
establish Defendants violated Plaintiff’s “clearly established”
Fourth Amendment rights under the United States Constitution.
Accordingly, the Court concludes on this record that Deputies
McKoy and Majors are entitled to qualified immunity as to
Plaintiff’s § 1983 claim.
In summary, the Court grants Defendants’ Motion for Summary
Judgment as to Plaintiff’s § 1983 claim against Deputies McKoy
and Majors.
II.
Plaintiff’s State-Law Claims
Plaintiff asserts state-law claims for false arrest and
negligence against Defendant Washington County pursuant to the
OTCA.
Although Plaintiff has not specifically alleged that her
13 - OPINION AND ORDER
claims against Washington County arise under the OTCA, Plaintiff
states in her Complaint that she gave Washington County timely
written notice of her claims and satisfied the requirements of
the OTCA.
A.
Defendants do not contest this issue.
False-Arrest Claim
1.
Standards
To state a false-arrest claim under Oregon law the
plaintiff must prove the following 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).
Under Oregon law a claim for false arrest is
defeated when an officer has probable cause to make an arrest.
Miller v. Columbia County, 282 Or. App. 348, 357-58 (2016).
officer has probable cause to make an arrest if:
An
(1) the officer
subjectively believes a crime has been committed and
(2) the officer's subjective belief is objectively reasonable
under the circumstances.
(2008).
State v. Miller, 345 Or. 176, 184
For an officer's subjective belief to be objectively
reasonable, the facts known to the officer must provide a
substantial objective basis for believing it was more likely than
not that a person has committed a crime.
2.
Id. at 188-89.
Analysis
The analysis of probable cause under Oregon law is
the same as the analysis under federal law.
14 - OPINION AND ORDER
As noted, the Court
has concluded Deputies McKoy and Majors had probable cause to
arrest Plaintiff.
Accordingly, the Court concludes Washington
County is entitled to summary judgment on Plaintiff’s falsearrest claim under Oregon law.
B.
Negligence Claim
Washington County contends Plaintiff’s negligence claim
under the OTCA fails because it is based on the same conduct
underlying Plaintiff’s Fourth Amendment claim.
Plaintiff, however, contends her negligence claim is
based on the fact that the deputies did not exercise reasonable
care when they “confirmed” Plaintiff was the perpetrator of the
offense that resulted in her arrest.
1.
Standards
Under Oregon law to establish a common-law
negligence claim a plaintiff must allege and prove the following:
“(1) that defendant’s conduct caused a foreseeable risk of harm,
(2) that the risk is to an interest of a kind that the law
protects against negligent invasion, (3) that defendant’s conduct
was unreasonable in light of the risk, (4) that the conduct was a
cause of plaintiff’s harm, and (5) that plaintiff was within the
class of persons and plaintiff’s injury was within the general
type of potential incidents and injuries that made defendant’s
conduct negligent.”
Son v. Ashland Comty. Healthcare Serv., 239
Or. App. 409, 506 (2010)(quoting Solberg v. Johnson, 306 Or. 484,
490-91 (1988)(citing Fazzolari v. Portland Pub. Sch. Dist. No.
1J, 303 Or. 1 (1987)).
15 - OPINION AND ORDER
2.
Analysis
Plaintiff alleges in her Complaint that “employees
of Defendant Washington County were negligent in identifying
Daley as the perpetrator” of the hit-and-run, “Defendants had a
duty not to arrest an individual without a warrant or probable
cause,” “Defendants had a duty not to make false statements or
omissions that were material to the finding of probable cause,”
“[Plaintiff’s] arrest, detention[,] and prosecution were a
foreseeable result of [D]efendant’s failure to fulfill those
duties,” and “[Plaintiff’s] arrest, detention[,] and prosecution
were caused by [D]efendant’s failure to fulfill those duties.”
Compl. at ¶ 33-37.
Plaintiff’s negligence claim is based on the
same conduct and facts that underlie her § 1983 claim; i.e.,
whether the deputies exercised reasonable care in determining
that they had probable cause to arrest her.
“[A]s a matter of principle, the court recognizes
that a plaintiff may allege negligence as a basis for recovery
separate from § 1983 for acts arising in the Fourth Amendment
search and seizure context.
The negligence claim, however,
should not be founded on the same facts that give rise to the
§ 1983 claim.”
Gregory v. City of Newberg, No. 3:15-CV-00473-BR,
2015 WL 5577755, at *7–8 (D. Or. Sept. 21, 2015)(citing Shilo v.
City of Portland, Civil No. 04–130–AS, 2005 WL 3157563, *1 (D.
Or. Nov. 22, 2005)).
Although a recent decision in this district
has challenged this long-standing rule (see Johns v. City of
Eugene, No. 6:16-cv-00907, 2018 WL 634519 (D. Or. Jan. 30,
16 - OPINION AND ORDER
2018)), this Court concludes the principle set out in Gregory is
applicable and controlling in this case.
In Johns the plaintiff
asserted claims pursuant to § 1983 for violation of his Fourth
and Fourteenth Amendment rights and state-law claims for
negligence and intentional infliction of emotional distress as a
result of his arrest by city police officers.
The court denied
the defendants’ motion for summary judgment as to the plaintiff’s
Fourth Amendment claim under § 1983 on the ground that there were
“substantial disputes of material fact that [were] determinative
in establishing the existence of probable cause.”
Id., at *5.
Although the court concluded the plaintiff’s § 1983 claim did not
preclude the state-law negligence claim even though it was based
on the same facts, the court denied the city’s motion for summary
judgment on the negligence claim on the ground that there was a
genuine dispute of material fact as to “whether the defendant’s
conduct unreasonably caused a foreseeable risk of harm, [similar
to] the Fourth Amendment [claim], which requires the officer’s
actions to be objectively reasonable.”
Id., at *14.
Plaintiff’s § 1983 and negligence claims in this
case both turn on the same facts that underlie the issue as to
whether it was “reasonable” for the officers to believe that a
crime had been committed by Plaintiff and, therefore, whether it
was reasonable to conclude they had probable cause to arrest her.
As noted, the Court has concluded the officers had probable cause
to arrest Plaintiff.
Accordingly, the Court concludes Washington County
17 - OPINION AND ORDER
is entitled to summary judgment on Plaintiff’s negligence claim
as a matter of law.
DEFENDANTS’ MOTION (#37) TO STRIKE
Pursuant to Federal Rule of Civil Procedure 12(f),
Defendants move to strike a video offered by Plaintiff as part of
her Response to Defendants’ Motion for Summary Judgment.
The
video is the security camera video of the activity at Phyllis
Cast’s home, but it is formatted on a CD and shows a larger and
clearer image.
Defendants object to this presentation on the grounds that
the officers viewed the video at the time of the events on an
iPhone and Plaintiff’s CD version was not available to the
officers at the time of the arrest.
Defendants, therefore,
contend Plaintiff’s CD version is not admissible and should not
be relied on by the Court to resolve Defendants’ Motion for
Summary Judgment.
Plaintiff, in turn, contends the video viewed by the
officers on the iPhone was not clear enough for the officers to
conclude that Plaintiff was the person in the video, and,
therefore, the officers were negligent when they relied on the
video to support probable cause.
Plaintiff asserts the officers
should have investigated further before effecting a warrantless
arrest.
A.
Standards
“A party may object that the material cited to support
18 - OPINION AND ORDER
or dispute a fact cannot be presented in a form that would be
admissible in evidence.”
Fed. R. Civ. P. 56(c)(2).
On a motion for summary judgment a district court may
consider inadmissible evidence as long as the evidence may be
presented in an admissible form at trial.
Jeffries v. Las Vegas
Metro. Police Dep't, 713 F. App'x 549 (9th Cir. 2017)(citing
Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003)).
B.
Analysis
Plaintiff included as part of her allegations in her
Complaint an image from the security camera video.
¶ 11.
Compl. at
Exhibit 8 to Deputy McKoy’s Declaration in support of
Defendants’ Motion for Summary Judgment appears to include the
same security camera video image referred to in Plaintiff’s
Complaint.
Deputy McKoy testified these images were screen shots
from the video viewed on Deputy Majors’s iPhone at the time of
the incident and that he relied on these images when making his
determination of probable cause.
The Court has concluded the reasonably trustworthy
information available to Deputies McKoy and Majors at the scene,
including the iPhone video they viewed, was sufficient to lead a
person of reasonable caution to believe that an offense had been
committed by Plaintiff, and, therefore, the officers had probable
cause to arrest Plaintiff.
Thus, the Court need not consider
Plaintiff’s CD version of the video to resolve the probable-cause
issue.
Accordingly, the Court DENIES as moot Defendants’
19 - OPINION AND ORDER
Motion to Strike.
CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion (#25)
for Summary Judgment, DENIES as moot Defendants’ Motion (#37) to
Strike, and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 31st day of May, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
20 - OPINION AND ORDER
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