Stroud v. Thalacker et al

Filing 55

ORDER: Defendants Thalacker and Three Sisters Irrigation District's Motion for Summary Judgment 7 is granted, defendants Edwards and Blanton's Motion for Summary Judgment 17 is granted, and plaintiff's Motion for Partial Summary Judgment 25 is denied. Signed on 5/12/2011 by U.S. District Judge Michael R. Hogan. (jw)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

TIMOTHY ALAN STROUD,

Civil No. 10-6171-HO

Plaintiff,

ORDER

v.

MARC THALACKER, individually and as
Manager of Three Sisters Irrigation
District; THREE SISTERS IRRIGATION
DISTRICT, a municipal corporation;
GLENN COOPER, individually and as a
Member of Three Sisters Irrigation
District; STEVE SIMPSON,
individually and as a Member of
Three Sisters Irrigation Di~trict;
LARRY BLANTON, Sheriff of Deschutes
County, Oregon; CAPTAIN TIM EDWARDS,
individually and as a deputy sheriff
of Deschutes County, Oregon,
Defendants.
Plaintiff,

Timothy

Stroud,

brings

this

action

asserting

violation of his Fourth and Fourteenth Amendment rights under 42

In addition,

u.S.C.§ 1983.

pla~ntiff

asserts claims for false

arrest and assault and battery.
Jan Daggett owns property in the McKenzie Carryon of Deschutes
County,

Oregon.

Squaw

Creek

Irrigation

Company

constructed

ditches, canals, and flumes for general irrigation purposes in the
In 1918,

area on and around where Daggett's property lies.

the

water users served by Squaw Creek formed a municipal corporation
which acquired all of the irrigation works and rights of Squaw
Creek.

In

defendant

2004,

Three

this

Sisters

municipal

corporation

Irrigation

became

District.

known

Defendant

as

Marc

Thalacker is the manager of the District.
The facilities of Squaw Creek included the Black Butte Canal,
part of which crosses what is now Daggett's property.

The District

diverts water from Whychus Creek at a point approximately 1.8 miles
southwest of Daggett's property into a

reservoir and then into

Black Butte Canal.

The flow through this channel eventually flows

through

property

Daggett's

direction

until

and

it

is

diverted

Spring

of

2010,

continues
for

farm

in
land

a

northeasterly

use

wi thin

the

District.
In

the

Three

Rivers

Irrigation

district

engaged in the process of piping an irrigation channel in the Black
Butte Canal.

The project included piping through the channel on

Daggett's property.

Daggett opposed the piping and enlisted the

help of several others, including plaintiff, to protest the project

2 - ORDER

t asserts that the District does not

through ner property.
have an easement
Prior

to

1

deputy sheriff

way across her property.

a
4,

2010,

Des

Blanton met wi

s County,

if

a

and defendant Sheriff Larry

scuss her protesting activities and

t to

warned her

Defendant Captain Tim Edwards,

confrontational, arrests would be

le

made.
On April 5, 2010,
installation of t

Sisters Irrigation District engaged in
across

D

placed himself
stood beh

Daggett's land.

Plaintiff

es in a position to block the work.

an

or, touched it while it was moving,

van and other

cles into the area being worked on,

action to

removal of the vehicles.

ended to

In short,

He
a

and
plaintiff

re with the project and his actions had t

e

potential to create conflict.
Thalacker
di

ched

a

Sheriff's

Office

and

r responded yes, Edwards dire
charging

plaintiff

took

3

ORDER

him

into

y to fill out

a

with

cr

Sheriff's deput

custody.

No

Office

tizen's arrest.

s

conduct, criminal mischief, and criminal trespass.
and signed it.

t

including defendant

Thalacker if he wanted to make a

lac

c

the

s to the scene,

Edwards as
When

contacted

one

from

of
Tha

ly
r read

s arrested plaintiff
sisters

Irrigation District used any physical efforts to remove or confine
plaintiff.
Defendants Thalacker and Three Sisters

Irrigation District

move for summary judgment as to the section 1983 and false arrest
. c laims

against

them.

Defendants

Blanton and Edwards

summary judgment as to all claims against them.

move

for

Plaintiff seeks

partial summary judgment as to the section 1983 claim and false
arrest

claim

against

defendants

Thalacker

and

Three

sisters

Irrigation District on the issue of liability.

A.

Defendants Thalacker and Three Sisters Irrigation District's

Motion for Summary Judgment (#7)
1.

Section 1983 Claim
a.

42 U.S.C.

State Actors
§

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
subj ected, any ci ti zen of the United States or other
person wi thin the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Consti tution and laws, shall be liable to the party
inj ured in an action at law, suit in equity, or other
proper proceeding for redress.
To prevail under section 1983,
that

(1)

the

defendants

acting

plaintiff

under

color

must demonstrate
of

state

law

(2)

deprived plaintiff of rights secured by the Fourth and Fourteenth

4 - ORDER

Amendments.

781 F.2d 1334 1 1338

Cir. 1986).
PIa

iff

Three Sisters Irrigation Dist

s

ion and Thalacker's status as its

c

status as a
manager make his

its actions under color of law.

plaintiff fails to cit
permits the Dist

However 1

what grant of authority under state law

or its members to arrest citizens.

municipal

ions

liability under

ct' s

are

section

not

1983.

subj ect
Monell

to
v.

Moreover,

respondeat
Department

superior
of

Social

Services, 436 U.S. 658, 665 (1978).
The deprivation of a constitutional right must be under color
of law for liabi

r section 1983.

y to attach

A person acts
r
co
state law,
if he
"exercise[s] power possess
state law and
made possible
y
cause t
r is clothed with
the'authority of state
] public employee
acts under color of state law while acting in his
official
capacity
or
sing
his
responsibilities pursuant to state law.
Dang Vang v. Vang Xiong Toyed,
(quoting West v. Atkins,
(1988)).

944

487 U.S.

.2d 476,
42,

49,

Because Thalacker's position

a

ral

right

108 S.Ct.

2250,

s area are

Thus, the conduct caus

must

be

fairly

5

ORDER

a

two-part

approach:

attributable

First,

the

of a
ion of

to

the

Determining whether the conduct is fairly attributable to
s

2255

not

authority to make arrests, his actions in
private individual.

479 (9th Cir. 1991)

state.
state

deprivation must

be

caused by the exercise of some right or privilege created by the
Second, the

state or by a rule of conduct imposed by the state.

party charged with the deprivation must be a person who may fairly
be said to be a state actor.
922, 937

(1982).

Lugar v. Edmonson Oil Co,

457 U.S.

The party charged, although a private party, may

be a state actor because he has acted together with or has obtained
significant aid

fro~

state

or because his conduct is

offic~als,

otherwise chargeable to the· state.

Id.

This

is

a

fact-bound

inquiry and only by sifting facts and weighing circumstances can·
the involvement of the
true significance.

state in private conduct be attributed its

Id. at 939.

While the evidence does show that Thalacker wanted to make a
citizen's arrest, the Sheriff's deputies actually effectuated the
arrest.

Nonetheless,

the

ability

to

effectuate

the

citizen's

arrest is made possible with authority granted by state law:
(1) A private person may arrest another person for any
crime committed in '.the presence of the private person if
the private person has probable cause to
believe the
arrested person committed the crime. A private person
making such an arrest shall, without unnecessary delay,
take the arrested person before a magistrate or deliver
the arrested person to a peace officer.
(2) In lorder
to make the arrest a private person may use physical
force as is justifiable under ORS 161.255.
ORS

§

133.225.

has

concluded that

The Ninth Circuit has noted that no federal court
a

citizen's

under color of state law.

arrest

constitutes

state action

The deprivation must be caused by the

exercise of some right or privilege created by the state.

6 - ORDER

Where

private parties wrongfully invoke a citizen's arrest statute, there
cannot

be

Womancare,

an
878

exercise
F.2d

of

a

1145,

state

created

1152-53· (9th

Collins

right.

Cir.

1989).

v.

Because

plaintiff in fact argues that the arrest was improper, plaintiff
cannot at the same time argue that Thalacker was acting under color
of state law in making a citizen's arrest.

In addition,

merely

complaining to the police, or executing a complaint in an attempt
to persuade the police to make an arrest is not state action on the
part of a private party.

Collins,

878 F. 2d at 1150.

thus asserts that the arrest resulted from
Three

Sisters

Irrigation

~

District/Thalacker

Plaintiff

conspiracy between
and

the

Sheriff's

Office.
One can establish joint action by demonstrating the existence
of a conspiracy, but "[j]oint action also exists where a private
party is 'a willful participant in joint action with the
its agents. '"

Collins,

878 F.2d at 1154.

state or

The core question is

"whether the state has so far insinuated itself into a position of
interdependence with the private entity that it must be recognized
as a

j oint participant in the challenged acti vi ty. "

resul t, j oint action requires "a
action."
conspiracy

Id.

is

In short,
alleged,

substantial degree of cooperative

j oint action exists,

but

As a

also

where

"a

not only where a

private

party

is

'a

willful participant in j oint action with the State or its agents. ' "
Collins, 878 F.2d at

7 - ORDER

1154~

Nonetheless, a private person is only

Ie

1

under

llenged

a

are

government."
503

j oint

action

inextri

1996)

y

"if

actions

particu
with

inte

Pacific Gas & Electric

Mathis v.

(9th Cir.

theory

those

of
498,

Co., 75 F.

aintiff

(findina:::1o state action because

led to present evidence of direct or indirect support of
offi

t

s

in actual

cision to terminate

PG & E

the

implicat

p

dence

despite

that led to informat

stigat

intiff

e

transactions,

in close cooperat

with County drug task force).
could conclude that

In this case, no reasonable trier·of
Sheriff's de put
arresti
Of

ce

plaintiff.
that

Jan

iff's Of

While Tha acker did

Daggett

the

the

se the

protesting

from 1

the

Sheriff's

project,

1 counsel,

the

Sue Brewster,

the project and advised the

red that t

District was acting lawfully in

See

canal.

878

summary judgment where
i

be

s rega

ff that it
ing

d not exercise indepe:::1dent judgment in

ce sought

who eva
She

s

\

re was no

on the

j

F.2d at

1155 56

(grant

dence to suggest lack of

of

the

lice

in a

en's

arrest) .
iff's

contention

ies were act
more than a
officer

8

ORDER

that

in conce

lacker

an

independent

t

Sheriff's

each other amounts to nothing

scription of a citLzen ma

making

and

judgment

a compla
that

an

and the
arrest

was

Edwards conduct
st, as

an investi

Thalacker if he wanted to make a c

and-determined what charges were
acker

to

si

the

c

icable.
ion.

of

s

ion on

izen's arrest,

Edwards merely asked
ies

riff's

then

effectuated the arrest.
When Captain

arri ved at .the protest, Thalacker pointed

aintiff

a women who were in the work area,

of

out

truck

a

work

attempti

Thalacker stated
the

excavator

and

climbed

on

interfe

Edwards

a

picture

i

I lying down on the

In addition,

by

work.2

pIa

king

iff

ct

information

personnel
provi

criminal mis

lThere is
the ground,
~front of work
on

in

f,

a
but

who
to

ORDSR

obsta

way

t

a

hazardous

also
and

s
another

work area.

tracks of
vehic

s

ked in the

t

iff had

s were provided with in

ion that

were
rds

trying
caused

criminal trespass,

s placed on the vehicl s
to

remove
to

them.

conc

The
that

disorderly .conduct

to whether plaintiff actually laid dow~
does not d~
tha~
he did stand in
~o act as an obstacle.

2Plaint ff· also
es that
concede
that
he
touched
the
equipment
in
an
effort
to
interfere
with
also concedes that he created a safety issue.
9

in

iff had taken action to unhook
Dist

creating

project and were informed
Deput

an

Thalacker

s independently obs

them there.
a

ing

as

front in front of

equipment

with

and

work area

act

people I

situation

p

to

standing in

the truck,
leaned
proj~ct.

does
the
Plaintiff

b~t

taken place.
associated

As noted above,

with

Three

the action on the part of anyone

Sisters

Irrigation

District

amounts

to

nothing more than a private citizen executing a complaint in an
attempt

to

persuade

the

Sheriff's

office

to

make

an

arrest.

Indeed,

the Sheriff's Office's official policy is that deputies

must independently review the circumstances surrounding a citizen's
arrest to ensure it is valid.

Sheriff's Policy 6.05.

Accordingly,

summary judgment in favor of Thalacker and Three Sisters Irrigation
District is appropriate as

b.

~o

the section 1983 claim.

Qualified Immunity

These defendants also assert qualified immunity, assuming they
are

state

actors

for

purposes

plaintiff cannot establish

~

of

the

arrest,

contending

that

policy or custom on the part of the

District to violate constitutional rights and that the decision to
make a citizen's arrest has only occurred on this one occasion.
Plaintiff merely offers the conclusory allegation that Thalacker
has

a

policy

protestors.

of

calling

the

police

for

assistance

against

Even if plai0tiff had any evidence to support such a

policy on Thalacker's part,

he presents no evidence to suggest

Thalacker had authority as

policy maker for the District.

~

Congress did not intend local governments to be held liable
under section 1983 unless action pursuant to official government
policy of some nature caused a constitutional tort." Monell v. New

10 - ORDER

York City Dept. of Social Services,
local

government

may

be

436 u.S.

responsible

for

a

658,

691

single

(1978).

A

decision

by

government policymakers under appropriate circumstances.

Where a

decision to adopt a particular course of action is properly made by
that government's authorized decisionmakers, it represents
of

official

understood.
(1986) .

government
Pembaur v.

Where

action

"policy"

as

that

City.of Cincinnati,
is

directed

by

term

is

475

u.S.

those

who

~n

act

commonly
469,

481

establish

governmental policy,

the local government is equally responsible

whether

is

that

repeatedly.
officers

action
See, id.

be

taken

only

once

or

to

be

taken

However, not every decision by governmental

automatically

liability.

to

Government

decisionmaker possesses

subj ects

the

liability
final

government
attaches

to

section

1983

only

where

the

authority to establish government

policy with respect to the action ordered.

The fact that a

particular official, even a policymaking official, has discretion
in the' exercise of particular functions does not,

without more,

gi ve rise to government liability based on an exercise of that
discretion.
establishing

The official, Thalacker, must also be resporisible for
final

government

policy

before the District can be held liable.

respecting

such

ac~ivity

See id. at 482-83.

"As with other questions of state law relevant to the
application of federal law, the identification of those
officials whose decisions represent the official policy
of the local governmental unit is itself a legal question
to be resolved by the trial judge before the case is
submi t ted to the jury.
Reviewing the relevant legal
11 - ORDER

mater Is, including st
and local
siLive law, as
well as " 'custom or usage' having the force of law,"
at 124, n. I, 1
S.Ct., at 924, n. 1,
j
must identi
thoseoffi ais or.
governmental bodies who
k with final
cymaking
authority
the local
rnmental actor concerning t
action
al eged
to
caused
the
particular
const
ional or statutory viol at
at issue. Once
those officials who have the power to make of
al
icy on a parti
ar issue
been identif
it ~s
the jury to determine
r their decisions have
caused t
ivation of rights at issue by policies
which aff
ively command that
occur, see
436 U.S., at 661, n. 2, 98 S.Ct., at 2020, n.
or by
a
scence in a
standing
ice or custom which
consti tutes the "standard operating. procedure" of the
local governmental entity.
See Pembaur,
supra,
at
485-487, 106 S. Ct., at 1301 1302 (WHITE,
concurring) ."
491 U.S. 701, 737 (1989).

The term "policy"
icy in the

nary sense of a

0

many situations.
a part
later

includes

Italso

its definition not only
or

r~le

Pembaur,

has authority"

to control decisions

475

whether ar. individual has f
whether

e

udes "a course of action tailored to

ar situation and not
situations."

ice appli

U. S.

at

1 policyma

481.

When

dete

authority, courts ask

a particular area, or on a particular

issue." McMillian v. Monroe County, 520 U.S. 781, 785 (1997).
acker to

a final policymaker, he must

authority such that a
att

ed to the
To det

in a posit

of

nal decision by him may appropriately be
strict.

whether the decisionmaker is .a final poli

the court looks first to state law.

, 491 U.S. at 737.

case,

District are

the Board of

12 - ORDER

For

rectors

of

r,

In this

charged

establishing

ORS §

ions of the District.

es

545.221.

Depending on the circumstances, however, courts may also look
to the way a
491 U.S.

1 government ent

at 737

(tr

based on "state

1 j

must

having the force of law").

ify official policymaker.s
law, as well as custom or usage

posit

1

y operates in practice. Jett,

While "[a]uthority to make [District]

policy may be

directly by a legislative enactment," it may

also be "

an offic

Pembaur 475 U.S.
making author
Nor has

at

No evidence of delegation of pol

483.

y

Board to Thalacker has been pre
dence of ratification of Thalac

a

decision.

1 who possesses such authority."

For

s

,s

tional reason summary judgment with re

to the section 1983 claim against the District is appropriate.

PIa

iff all

s.

s a false arrest claim against all de

acker is immune from liability under ORS § ORS 30.265(1)
official

ity.
r,

re

If

plaintiff

st

he would have no claim aga

strict under a

superior theory, but the District
the

claim

against

to the Oregon Tort

3

wishes· to

ORDER

Thalacker
~laims

Act.

his

in

his

De substituted
0

capacity

PIa

ditch and climbing on the equipment--which he

for lying
denies.

However,

as will be discussed
based

make an arrest is j
police

rega

ess of the

undisputed t

t

~n

the,col

poten~ial

re

as will be discussed

low.

Thalacker and t

st

ct,

f that

iff was charged,

the motion for

motion by

summary judgment is

s did not arrest plaint if

Plaintiff offers t
conspiracy between Tha

concluscry allegation t

was a

cker and the Sheriff's department to arrest

Plaintiff offers insuffic
iff speculates that

evidence of such

t

Thalacker's signing of the

racy.

re "was an agreement and a meet

minds between" de

tation.

action or conspiracy in th

plaintiff;

of

only supp6rted evidence is
As noted above, there

wa~

no

case with respect to the arrest.

To prevail on a false arrest c a

a~t

is

to create conflict and were

However, for purposes of t

granted because these

confined

It

the project

s for which pIa

the c

14 - ORDER

arrest.

r

to conduct the project, probable cause

certainly exis

aware of

rmation of the

that there was a reasonable bel

the District had the ri

the

probable cause to

ive i

iff intended to inter

a

a safety risk.

i

low,

reason stated

and that his actions had the

j

that he was arrested

iff makes much of the content

plaintiff must show:

(1)

must

to

(2 )

that causes conf

confinement; and (4) the

;

intend

(3) plaintiff must be
must be unlawful.

Ross v.

City of Eugene,

151 Or.

App.

656,

663

(1997).

In this

case, neither Thalacker nor any member of three Sisters Irrigation
District confined plaintiff.3

Accordingly, the motion for summary

judgment is granted with respect to the false arrest claim.

B.

Plaintiff's Motion for Summary Judgment
Plaintiff

defendants

seeks

Thalacker

summary
and

judgment

Three

as

Sisters

(#25)
to

the

liability

Irrigation

of

District.

however, because these defendant are entitled to summary,judgment
for the reasons stated above, the motion is denied.

C.

Defendants Blanton and Edward's Motion for Summary Judgment

(#17)
1.

'Section 1983 Claim

As noted above, plaintiff alleges claims for violation of his
Fourth and Fourteenth Amendment rights asserting a lack of probable
cause

for

his

arrest.

Plaintiff clings

to

the

assertion

that

Thalacker arrested plaintiff and lacked probable cause to do so.
However,

because

Sheriff's

deputies

actually

effectuated

the

arrest, probable cause must be judge from their knowledge.

3A
private person may ~rrest another for a
crime committed in
their
presence
and
in
making
the
arrest
shall
take
the
arrested
person
before
a
magistrate
or
deliver
the
arrested
person
to
a
peace
office.
ORS
133.225(1).
No
member
of
Three
Sisters
Irrigation
District
took
plaintiff
to
a
magistrate
or
a
peace
officer.
The
sheriff's' deputies
were
at
the
scene
and
plaintiff
was
taken
into
their
custody
without
the
aid
of
Thalacker.
Thalacker merely made a complaint.

15 - ORDER

iff's assertions rest primari
ree Sisters Irrigation
property.

Plaintiff

st'rict

. on the argument

no right of way on

supports

s

with

a

's

counsel's

statement that
I have personally
ewed the files and recordS of t
Prineville_I]
and the Portland,
offices of
the [D]epartment of. the [ nterior, Bureau of Land
Management and I was unable to find
.document or map
disclos
the Secretary of the Interior ever
approved
easement for a ri
of way to TSID' s
predecessor across the property of Ja~Daggett.
(#36) at p. 2.4

Declaration of Claud I
not

end to make
anyone

demonstrate a
like

in

elf a witness in this case, but no aff

charge. of

lack

0

competent

long

·entirely

However, it

riff'~

4Jan
quest
fact.

s
SIt
a

Sisters
property.

16

of way.

story ass

present

Counsel's

statement

is

associat

Black Butte Canal

with

with it, at best, the record
right of way exists. 5

ear as to whether

Of

of way

information he communicated to

ce also provided a reasonable

Daggett
also
offers
her
own
a natural stream, but this does

appears
that
Jan Daggett·
declaration that the
I
strict

ORDER

has

s appear that Thalacker reasonably believed that the

District had a ri
the

right

re

subject area.

and the right of
not

a

such

t

to demonstrate the lack of a right of

with respect to
Given

Presumably counsel did

of

way
the

on
not

lief that the

that
the
create an

area
issue

in
of

dismissed her
did not exist and Three
ect
through
Daggett's

right of way exists.

Thalacker provided the following in support

of the right of way:
3. Submitted herewith as Appendix pages 45 - 52,
inclusive, is a portion of the filing by George W. Brown
under the Desert Land Act for the NWl,.,J of the NEl,.,J of
Section 27 lying immediately north of Ms. Daggett's land
and the land Ms. Daggett sold to Doris Kozlovic in 2001.
I personally obtained the Brown records from the National
Archives in Washington, D.C. The Black Butte Canal exits
[on] Ms. Daggett's property flowing in a northeasterly
direction, crosses the Northwest ~orner of the Kozlovic
property, enters the land homesteaded by Mr~ Brown, and
continues in a northeasterly direction.
Any water
originating in or about Ms.
Daggett's land would
naturally flow downhill ohto Mr. Brown's property. If, in
fact, there was a natural stream in McKenzie Canyon, it
would flow downhill onto the property homesteaded by Mr.
Brown. The 45 pages of records pertaining to Mr. Brown's
homestead include his Declaration, four Affidavits in
support of his Declaration, two interim reports submitted
by Mr. Brown,
and his Final Proof Testimony. The
Declaration of Applicant Form required Mr. Brownr to list
streams or bodies of water that border on the lands. He
states "none." It then asks for watercourses, springs, or
other bodies of water that pass through or on said land.
He lists only the. "Squaw Creek Irrigating Ditch." App.
46. On the Testimony Of Claimant, question number 4, Mr.
Brown was required to describe the soils, the proximity
of the land to the water, natural streams, springs, and
bodies of. water upon or passing through it, and whether
those springs or streams provide natural irrigation. In
answering the question, he states, "the Squaw Creek
Irrigation Cos. canal passes through the land; no natural
streams or springs on the land." App. 48. Essentially the
same question appears on the Testimony of Witness Final
Proof as Question 3~ The four witnesses each provided the
same answer "Squaw Creek Irrigation Cos. Main Canal
passes through it; there are no natural streams, springs
or other bodies of water upon or pass through it;." App.
50. Many of the parcels of land in the District were
patented under the same Federal Acts as Mr. Brown's land.
4. Based on the historical research I conducted, the
original records relating to the homesteading of the land
now included in the Three Sisters Irrigation District and
the lands relevant to this case are located at the
National Archives in Washington, D.C. and in the Oregon
17 - ORDER

Water Resources
Oregon. The
rts by Inspector
my original
ion (App 1
inclus
were obtained
by me from the Nat
s in Was
, D.C.
5.
as Appendix
s 53 - 58,
, are a port
of the record
ained from
Oregon Department of Water Resources
i ves in
Salem, Oregon, of the action by the State of Oregon at
the re
st of the Squaw Creek Irrigation
to
reserve the lands now
District for
steading
under the Desert Land Act. The land reserved by the State
of
uded the entire NE~ of Section 27,
14
, Range 11 E., W.M.,
location of
Daggett
property. The records include: (a) the request to the
State from Squaw Creek I
Company includi
map of
irrigation
the survey 0
canals, various aff
s, correspondence and
s; and (b) the documents submitted to the
United
States
General
Office
verifyi
information provided by the
and requesting that
the 1
be
for homest
under the Act.
6. Attached hereto
pages 59
64,
inclus
, are a portion of
survey of the Black Butte
Canal re rred to therein as the Squaw Creek Irri
Company's Canal for that
of the canal where
enters Towns
14 South, Range 11 E., W.M. from Towns
15, crosses Township 14
Range 11 E., W.M.,
incl
Daggett property,
exits Range 11
S. and enters
12. This s
was submitted by t
Company to
State for review and then by the State to
the General Land Office. The Canal is shown on the map
t
Company that was then reviewed
. submitted
submi tted
al Agent Burt
accepted by the
United States
39) as showing
correct location of
the Company's Canals. The map shows
Black Butte Canal
which flowed across Ms. Daggett's land, now the location
of the Dist ct's
line. The
s were obtained
personally by me from the Department of Water Resources
Archive in Sa
Declaration of Marc Thalacker (#45) at pp. 2-5.
The existence of
stigated and confirmed
that the·Secret

8

ORDER

canal and its use
reports by Burt
of the Interior

igation were
1915 and 1924
right of

way.

As noted

Kern River Co. v. United States, 257 U.S. 147,

151-52 (1921):
The Act of 1891, §§ 18-21, provided for rights of
through the
ic lands and reservations of the
t
States for
ches, canals
reservoirs for the purpose
6f i
ion but not for any other
e. These
ghts
of way were to be
ained by rna
application at the
1 land office and ultimately securing
approval by
the Secretary of the Interior of a map of the ditch,
canal or rese
r. There was no provision for a patent.
The grant was to become
the approval was
given; that is to s
way was then to vest
in the applicant for
purpose
cated in
act ....
The right of way
ended by
act was neit r a mere
easement nor a
simple absolute, but a 1
ted fee on
an implied
ion of reverter in the event the
ceased to use or retain the
r the purpose
indicated in the act.
t
duri

agrees'that the District has used

irrigation season to

Accordingly, there is at
of way

"stream bed"
s

rt water into irrigation
st areas

sts and it is likely

.6

Ie belief that the right
ively est

As noted above, the Sheriff's Office s

lished.
legal counsel to

the documents demonstrating the right of way and received
confirmation from counsel
pipi

the canal.

ain Edwa

the District was acting lawfully
received such confirmation

r

to any arrests.
Plaintiff asserts section 1983 cIa
in his individual

official

against

a

Edwards

ity and against Sheriff Blanton

6Daggett's
objection
the
project
is
based
on
her
opiEion
that
the
construction
created
substantial
added
burdens
to
her
property and adversely "affected her property by
an
and
"
environment
for
noxious
weeds
and
erosion
among
other

9

ORDER

s official capacity.
1983

is

yzed

validity of

under

the

Fourth Amendment,

standards.

u.s.

510

section

arrest

le cause for the arrest existed,

not
281

266,

due

process

(1994).

If

arrest did not violate

the Fourth Amendment.

918 F.2d 821, 825

(9th Cir. 1990).
Probable
merely

cause

is

a

fl

le,

common-sense

res that the facts avai

to the officer would Ie
lieve_ that

a man of reasonable caution to

(1983).

y true than

~~~~~~~,

A determination of probable cause

of the circumstances.
In this case,

independently
interview

crime has taken

III inois v Gates,

4

f

correct

460 U.S. 730, 742
on the tota i

U.S. 213, 238 (1983).

the Sheriff's deputies may not solely rely on

claim of a citizen

:...:.:;;:I.':::'=.::::....1-{

Ise.

a

such· a bel

ce; it does not demand any showing t
or more li

It

st

tness that a crime has occurred,

stigate

sis of

tness'

but must
edge or

r witnesses.

261 F.3d 912,925

r.

(9th

2001) (cit

Fu11 e r v.

M. G .

950 F.2d 1437, 1444 (9th Cir. 1991)). A sufficient basis
of

knowl

suffici

c

is

established

if

the

victim

des

\\·'facts

ly detailed to cause a reasonable person to bel
had

been

committed

the

perpetrator.' 'I Fuller, 950 F.2d at 1444
545 P.2d 1333,

20 - ORDER

1336

(1976)).

suspect

was

a

the

(quoting People v. Ramey,

hermore,

the collect

knowledge

doct

courts

ied with

of

the

invo

whet

det

an

arrest

Fourth Amendment by looking to the collective

knowledge of all the off
all

must

in

ion

rs
known

is not communi cat

even if

stigat
to

the

law

to the of

arrest.

enforcement

cer whQ

794

act~ally

F.2d 1415,

officers
rna

s the
eir.

1426

1986) .
As noted
criminal

, plaintiff was arrested for disorderly
truction

s

administration,

governmental

or

j

cial

with access to or use of public

interfe

water works.
A person commits
judicial

crime of obstruct

administration

if

impairs or hinders the
or judic

1

j
§

not

apply to

or obstacle.
the

162.235(2).
t

s

constitute

function, the officers
violated

s st

ute.

governmental

law or
dation, force,

ORS

ical or

162.235(1).

This cr:'me

§

obstruction of unlawful
rence wi

though

it

is

rnmental or

the making of an arrest.
unclear

rnmental

or

if

the

merely

probable cause to bel
For pla

or

intentionally obstructs,

stration

cial action or inter

act

person

ion by means of

economic inter
does

the

governmental

a

ORS

construction
proprietary

. that

aintiff
rnmental

iff to obstruct a

I

funct

by means of a "physical inter

some conduct or act on

21 - ORDER

intiff's

rence or
that re

cle"

res

ts in a bodily or

material obstruct

to a governmental

Sheriff's deputies

ss.

ty or

ac~

Here,

iff had placed himself in

that

the way of the excavator (it does not matter if he was 1
or not)

and had

laced vehic

reasonably believed
exercis

s

Three

in the

on

crime of
sorderly
second
degree
if, . wi th
intent
to
inconvenience, annoyance or alarm, or rec
a
sk thereof, the perso~:
fighting
ening

(b) Makes unreasonable
©
Wl

Disturbs any
lawful

was
ion

rcumstances.

A person commits

(a)
Engages
in
tumultuous or t

District

the irr

a governmental function in mainta

system under a totality of

ies also

The

SistersT

down

or

in the
cause
public
ssly creat

in
;

vio

e;

awful assembly
ty;

of

persons

(d) Obstructs vehicular or pedestrian traffic
on a public way;
(e) Congregates
other persons in a public
place and refuses to comply
th a 1
r of the
ice to disperse;
(f) Initiates orci
es a report, knowing
it to
false, concerning an alleged or
impending fire,
osion,
, catas
or other emergency; or
(g)
Creates
offens
person is
ORS

§

a
haza
or
tion
any act
licensed or privi

ically
which the
to do.

166.025(1).

Because the deputies had a reasonable bel
constituted a.right
22

ORDER

way and

re is no

f that the

spute that

1

aintiff

obstructed the District's
arrest plaintiff for diso
acknowledges

that

his

c

The

a

safety

issue

and

the

ies had probable cause to believe
to do so. 7

iff did not have the pr

pI

In addition, plaintiff

rly conduct.

actions

potential for conflict.

re was probable cause to

cles,

A person commits the crime of

I mischief in the thi

if, with intent to cause

ial inconvenience to the

owner or to another person,

no

reasonable ground to believe

rson

rson tampers or interferes with the p
in, whether pi

164.345.

not create an issue of fact.
an attempt

to

ntiff cl
p

inter

to do

r

such right,

the

ORS

of another.

§

on the equipment does

iff concedes he blocked the
re

The

excavator.

es
ri

so nor

probable cause to believe that the

of

and that plaintiff no ri

strict had the

to stop the tegitimate

work.
Whenever

appropriator of water has the lawful r

for the storage,
or

a

of the wor
The

iff
charge,
but he
Moreover,
constituted a
23 - ORDER

rsion, or carriage of water, no person sha I
obstruction that shall interfere
convenient access thereto.

ies

of way

cause

to

believe

the use

ORS § 540.730.

plaintiff

was

First
Amendment
rights
with
respect
to
this
not al
any such violation in his
fails
to
make
a
showing
that
the
canal
forum.

violation of this statute given their reasonable belief that the
District had the right of way in the channel.
In light of the above, summary judgment is appropriate on the
section 19&3 claim against the Sheriff's Office defendants.

In

addition,

even

if

of

the

probable

Edwards
cause

conclusion

is

did

"t7hat

entitled

not

probable

exist

to

qualified

given

cause

the

did

exist.

immunity

reasonableness
Qualified

immunity

shields the deputy from damages if a reasonable officer could have
believed plaintiff's

arrest

to be

lawful,

in

light

of

clearly

established law and the information the deputy possessed. Anderson
v.

Creighton,

483

U.S.

635,

641

(1987).

Even

law

enforcement

6fficials who "reasonably but mistakenly conclude that probable
cause is present" are entitled to immunity. Id.

Thus, even if the

right of way did not exist, the arrest was constitutional.
Finally,

plaintiff fails

to demonstrate a Sheriff's Office

policy that resulted in any alleged violation of his rights and
thus, Blanton is entitled to summary judgment in any event.

2.

False Arrest

Under the Oregon Tort Claims Act, summary judgment as to the
False Arrest claim against Edwards and Blanton in their official
capacities must be granted and the public body itself substituted.
ORS 30.265(1).

Moreover, summary judgment is appropriate because

probable cause to make the arrest existed making the confinement

24 - ORDER

See ORS §

lawful.
without

a

warrant

133.310 (1)

(An officer may arrest

if probable

cause

to believe

the

a

person

person has

committed misdemeanor or other offense with a penalty greater than
a

class

In

C misdemeanor).

addition,

despite

Edwards

citing

plaintiff's actions of lying 90wn and climbing on equipment as part
of the basis for arrest,
an officer's expressed reason for making an arrest does
not control a court's determination of that arrest's
legality-so long as the officer acted on the belief that
there was a legal justification for that action (the
subjective component)
and the officer's belief was
obj ecti vely reasonable (the obj ecti ve component) . For the
purposes of the subj ecti ve component of the probable
cause inquiry, it is sufficient if the trial court finds
(and there is evidence to support its_findings) that the
officer reasonably believed that he had lawful authority
to act, even if the officer's subjective basis for acting
turns out to be incorrect.
State v. Miller, 345 Or. 176, 186 (2008).
Accordingly,

summary

judgment

is

granted as

to

the

claims

against defendants Edwards and Blanton.
CONCLUSION
For the reasons stated above, defendants Thalacker and Three
Sisters Irrigation District's motion for summary judgment (#7)
granted,

defendants

judgment

(#17)

is

Edwards
granted,

summary judgment (#25)
DATED this

25 - ORDER

and
and

Blanton's

motion

for

summary

plaintiff's

motion

for

partial

is denied.

1Z.~day

is

of May, 2011.