Johns v. City of Eugene et al

Filing 81

OPINION AND ORDER: Defendants' Motion for Summary Judgment 55 is GRANTED IN PART and DENIED IN PART as follows: the motion is denied with respect to the Fourth Amendment claim against the individual officers, denied with respect to the vicarious-liability negligence claim against the City, and otherwise granted. Signed on 1/30/2018 by Judge Ann L. Aiken. (ck)

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

ALVIN JOHNS,

Case No. 6:16-cv-00907-AA
OPINION AND ORDER

Plaintiff,

v.
CITY OF EUGENE, OFFICER
YOLANDA CONNER, and OFFICER
BRYAN INMAN,
Defendants.

AIKEN, District Judge:
In this action, plaintiff Alvin Johns asserts various claims under 42 U.S.C. § 1983 for
violations of his Fomih and Fourteenth Amendment rights as well as state-law negligence and
intentional infliction of emotional distress claims. Defendants, the City of Eugene ("the City")
and Eugene Police Depmiment Officers Yolanda Anderson 1 and Bryan Inman, move for
summary judgment on all claims against them. For the reasons set fotih below, defendants'
motion is denied as to plaintiffs Fourth Amendment claim against the individual officers, denied
as to the vicarious-liability negligence claim against the City, and granted in all other respects.
1

The complaint used Officer Anderson's former surname, Conner.

Page 1 - OPINION AND ORDER

BACKGROUND
Special rules of construction apply when evaluating summary judgment motions: (1) all
reasonable doubts as to the existence of genuine issues of material fact should be resolved
against the moving paiiy and (2) all inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the non-moving paiiy. T. W: Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). As such, this section is stated in the light

most favorable to plaintiff, with all questions of material fact resolved in his favor.
On the evening of August 3, 2014, Betsy Jean Castleton appeared at plaintiffs home with
a strong odor of alcohol on her breath and insisted on seeing plaintiffs adult son, Alvin Johns II
("Mr. Johns II"), who was her friend and coworker. Given the time of night and Ms. Castleton's
intoxicated state, plaintiff refused to allow her inside his home. Despite plaintiffs repeated
requests, Ms. Castleton refused to leave. Plaintiff grabbed a metal baseball bat, pointed it at Ms.
Castleton's chest, and told her, once again, to leave the premises. At some point, Ms. Castleton
fell down backwards, landing on her own cell phone. Awoken by the commotion, Mr. Johns II
emerged from the house to see Ms. Castleton lying on the porch screaming "bloody murder" at
his father, who was standing over her with a baseball bat. Miller Deel. Ex. 2 at 4, Aug. 22, 2017.
Ms. Castleton and Mr. Johns II both began yelling at plaintiff, threatening to beat him up and
send him to the hospital. Plaintiff retreated into the house and locked his door.
Once inside, plaintiff phoned 911 for assistance. According to the transcript of that call
filed in suppmi of the City's motion for summary judgment, plaintiff reported that he was inside
the house and that Mr. Johns II and Ms. Castleton were outside, yelling at him and threatening
him. The 911 operator could hear people yelling in the background. When the 911 operator

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asked him ifthere were any weapons involved in the altercation, plaintiff immediately stated that
he had a baseball bat.
Four officers were dispatched to the scene: defendant Officers Anderson and Inman, and
non-defendant Officers Kyle Evans and Robert Rosales. 2 By the time the officers anived, Mr.
Johns II and Ms. Castleton had left the area. Plaintiff met the officers in front of his house and
identified himself as "the one who called." Id. As plaintiff began to explain what had happened,
Mr. Johns II returned to the vicinity. As Mr. Johns II approached, he became extremely agitated
and started yelling at plaintiff. The officers directed plaintiff to go back into his house in order
to separate the two men.
According to Officer Anderson's investigation report, Mr. Johns II stated that he was
angry because plaintiff had hit Ms. Castleton with a baseball bat. Officer Anderson then spoke
to Ms. Castleton. Ms. Castleton stated that she had gone to the house to check on Mr. Johns II
and that she was w01Tied because Mr. Johns II told her that his father beat him. She asserted that
she had gone to the door and asked to see Mr. Johns II, but that plaintiff had told her to come
back the next day. She fmiher stated that about thhiy seconds after the door closed, she decided
she wanted to leave a message for Mr. Johns II, and that when she knocked on the door a second
time, plaintiff appeared in the doorway with a baseball bat in his hand.

She reported that

plaintiff "put the bat to [her expletive] throat" and told her to get off the porch. Anderson Deel.
Ex. 1 at 3. She then alleged that plaintiff pushed the baseball bat against her throat with enough
force that she fell to the ground, dropping her cell phone beside her on the porch. Ms. Castleton
stated that she told plaintiff she was going to call the police, at which point plaintiff "went
2

Plaintiff initially included Officer Evans, Officer Rosales, and Ms. Castleton as
defendants in this lawsuit. The claims against Ms. Castleton were dismissed without prejudice in
February 2017. Doc. 44. The claims against Officers Evans and Rosales were dismissed with
prejudice in July 2017. Doc. 53.
Page 3 - OPINION AND ORDER

psycho the [expletive] on [her] phone" and began smashing it with the baseball bat. Id. She told
Officer Anderson that when she attempted to reach for the phone, plaintiff raised the bat over his
head and swung at her. Ms. Castleton stated that plaintiff missed four times because she scmTied
out of the way, but hit her "one good time" with the bat. Id at 4.
The report states that Officer Anderson "did not see any redness or swelling" on Ms.
Castleton's chest or throat (despite Ms. Castleton's statements that her chest and throat hmt the
most) but that she did observe "a bump, red marks and swelling on the right side of her back."
Id. Officer Anderson smelled a strong odor of alcohol on Ms. Castleton's breath. Photographs

taken by the officers show a cell phone with a shattered screen and a welt on Ms. Castleton's
back. The officers did not test the phone see if it was still operable. When Ms. Castleton told
the officers she needed her phone, they gave it back to her without asking why she needed a
demolished phone. Officer Anderson stated in her deposition that an examination of plaintiffs
bat revealed "sparkles, like little glass paiticles" on the end, but that fact is not documented in
either the investigation repo11 or the probable cause affidavit. Michaels Deel. Ex. 1 at 7. The bat
was not seized as evidence and no photos of it appear in the summary judgment record. The
officers did not examine the porch, which is constructed of soft fir wood, for evidence that it had
been hit with a bat.
Officers Anderson and Inman then went into the home to talk to plaintiff. Plaintiff
admitted to using the baseball bat to "direct" Ms. Castleton off the porch by pointing the bat at
her chest. Id. He denied making any physical contact with Ms. Castleton and denied smashing
her cell phone. When Officer Anderson asked how Ms. Castleton ended up on the ground,
plaintiff responded, "[s]he fell from being drunk I guess." Id In his deposition, plaintiff stated
that the officers asked him several times to explain what happened. It appears that plaintiff

Page 4 ~OPINION AND ORDER

became frnstrated with the officers' repeated questions and asked them "if I did [smash her
phone] what it if was on my property[?]" Anderson Deel. Ex. 1 at 4. When the officers asked if
that was an admission that he had in fact smashed the phone, plaintiff reiterated his denial and
said they were "twisting [his] words" and that he "didn't see a phone." Id. At some point,
Officer Inman suddenly "called [plaintiff! an [expletive] liar and bum rushe[d him] from
approximately 8 feet away and grab[bed plaintiff! like [he] was about to hit his coworkers."
Miller Deel. Ex. 2 at 5.
The officers believed Ms. Castleton, a white woman, rather than plaintiff, a black man,
and arrested plaintiff. Plaintiff was charged by inforniation with menacing and criminal mischief
in the second degree, both misdemeanors. Plaintiff remained in custody for three days and
because his release agreement forbade him from being within a mile of Ms. Castleton, the City
forced plaintiff out of his home. In order to comply with the tenns of his release, plaintiff rented
a room in a hotel for twenty-three days at a cost of approximately $1,350. The terms of the
release agreement also prevented plaintiff from visiting a doctor in San Francisco and taking a
long-planned trip to see a football game in Seattle.
Several months later, an Assistant District Attorney ("ADA") took the case to the grand
jury to consider the addition of a felony charge. Through Ms. Castleton's testimony, the ADA
leamed that Ms. Castleton had continued to use her phone after the attack. Ms. Castleton also
described the attack in a way that was not consistent with the evidence documenting her injuries.
The ADA pulled the case from the grand jury and dismissed all charges.
Plaintiff filed this civil rights action in May 2016. On February 15, 2017, I denied
defendants' motion to dismiss. Johns v. City of Eugene, 2017 WL 663092 (D. Or. Feb. 15,
2017). Defendants now move for summary judgment on all claims.

Page 5 - OPINION AND ORDER

ST AND ARD OF REVIEW
Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine

issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial.

Celotex, 477 U.S. at 324.

"Summary judgment is

inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could
return a verdict in the nonmoving patty's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d
1201, 1207 (9th Cir. 2008).

DISCUSSION
I.

Fourth Amendment

Defendants move for summary judgment on plaintiffs claim that the individual officers
violated his Foutth Amendment rights. Defendants argue that plaintiffs claim fails because, on
the undisputed facts, a reasonable officer could conclude that there was probable cause to arrest
plaintiff for several crimes including assault, harassment, criminal mischief, and menacing.
Defendants also assett that the officers are entitled to qualified immunity. Plaintiff responds that
the truth of the "undisputed" facts submitted by defendants is at issue, and that inconsistencies
between Ms. Castleton's story and the available physical evidence triggered defendants' duty to
investigate further before arresting him.
A.

1\!ferits

The Foutth Amendment protects "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against umeasonable searches and seizures[.]" U.S. Const. amend.

Page 6 - OPINION AND ORDER

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
info1mation sufficient to lead a person of reasonable caution to believe that an offense has been
or is being committed by the person being arrested." United States v. Lopez, 482 F.3d 1067,
1072 (9th Cir. 2007). "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). While probable cause does not require law enforcement officers to support their seizure
with "certainty or even a preponderance of the evidence," officers must be able to conclude that
there is a "fair probability" that the defendant committed a crime, United States v. Gourde, 440
F.3d 1065, 1069 (9th Cir. 2006), and "may not disregard facts tending to dissipate probable
cause," Sialoi, 823 F.3d at 1232.

Finally, while law enforcement officers do not need

"conclusive evidence of guilt" to support seizures with probable cause, "mere suspicion,
common rumor, or even strong reason to suspect" a plaintiff engaged in criminal conduct are 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); Harper v. City of L.A., 533 F.3d 1010, 1022
(9th Cir. 2008) (citation and quotation marks omitted).
Defendants assert probable cause suppo1ied plaintiffs arrest for several crimes.

As

evidence supporting probable cause, defendants focus on the fact that Ms. Castleton described
being threatened with a bat and that she was able to show a fresh welt on her body and a
shattered phone screen to the officers at the scene. Because arrests based on probable cause only

Page 7 - OPINION AND ORDER

require a "fair probability" that an offense has been committed by the arrestee under the totality
of the circumstances, defendants argue that there was probable cause to arrest plaintiff.
Plaintiff contends that his atTest was on mere suspicion, in violation of his Fourth
Amendment Rights. He argues that the probable cause affidavit omits multiple relevant facts. In
particular, plaintiff points to the facts that (1) he was not intoxicated at the time of the incident,
whereas Ms. Castleton was; (2) Officer Anderson could not see any redness or swelling on Ms.
Castleton's chest or tluoat area, undermining Ms. Castleton's rep01i that she was hit in the chest
so hard she fell down; (3) Ms. Castleton's cell phone was intact and operable after alleged
repeated blows by a metal bat; (4) the swelling on Ms. Castleton's back and damage to her phone
were more consistent with plaintiffs contention that she fell than with Ms. Castleton's allegation
that plaintiff struck her and the phone with a bat; (5) the officers should have suspected that Ms.
Castleton was not telling the truth about the bat hitting her phone because she asked to have the
phone back, suggesting that she knew it remained operable; and (6) plaintiff, not Ms. Castleton,
was the person who had called 911. Plaintiff argues that the officers ignored these facts, all of
which tended to dissipate probable cause, and failed in their basic duty to investigate evidence
before making an arrest.
Viewing all the evidence in the light most favorable to plaintiff, I conclude that there
remain issues of material fact as to plaintiffs Fourth Amendment claim.
To suppoti their probable cause argument, defendants largely rely on Ms. Castleton's
statements and physical evidence observed by the officers. The allegedly corroborating physical
evidence, however, is not sufficient to definitively establish probable cause.
addressing the allegation that plaintiff attacked Ms. Castleton with a bat.

I begin by

Considering Ms.

Castleton' s repoti that she was hit so hard in the chest that she fell down and it hu1i the most in

Page 8 - OPINION AND ORDER

the chest area, the absence of any redness or swelling on that part of her body could pe1mit a jury
to conclude that defendants should have questioned Ms. Castleton' s version of events.
Second, I consider the allegation that plaintiff smashed Ms. Castleton's phone. Here, the
fact that her phone was still operable and intact after violent blows could support the conclusion
that the officers should have known the screen was shattered in some other way-for example, as
plaintiff suggested, as a result of Ms. Castleton falling down due to intoxication. And even
though the officers would not know from visually inspecting the phone that it remained operable,
a jury could conclude either that they should have tested the phone right away, or that Ms.
Castleton' s statement that she needed the phone back unde1mined her st01y because it suggested
she knew the phone was still working. Moreover, although glass shards on the end of the bat
clearly would have c01rnborated Ms. Castleton's story, a jury could question Officer Anderson's
veracity regarding her examination of the bat because the officers did not take the bat into
evidence and there is no documentation of visible glass on the bat in the investigatory report or
probable cause affidavit.
A jury could conclude that these inconsistencies between Ms. Castleton's statement and
the physical evidence triggered the officers' duty to investigate further.

Had such an

investigation been conducted, the officers might have leamed from Mr. Johns II that Ms.
Castleton's phone "always had a broken screen." Michaels Deel. Ex. 7 at 2. They might have
examined the soft fir wood of the deck and found no evidence that plaintiff had hit the wood
when he missed Ms. Castleton.
Finally, these evidentiary inconsistencies must be considered together with the fact that
Ms. Castleton was intoxicated while plaintiff was sober, that plaintiff summoned the police to his
house, and that plaintiff readily admitted to using a baseball bat to get Ms. Castleton to leave

Page 9 - OPINION AND ORDER

(though not in the way she alleged). Collectively, the evidence gives rise to substantial disputes
of material fact that are determinative in establishing the existence of probable cause.
B.

Qualified Immunity

As an alternative basis for summary judgment, defendants argue that qualified immunity
bars plaintiffs Fomih Amendment claim against the individual officers because "any mistake
they made about the existence of probable cause in this case was reasonable." Defs.' Mot.
Summ.J. 12.
Qualified immunity gives "government officials breathing room to make reasonable but
mistaken judgments about open legal questions. When properly applied, it protects all but the
plainly incompetent or those who knowingly violate the law."

Ashcroft v. al-Kidd, 563 U.S.

731, 743 (2011) (quotation marks omitted). 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) (quotation marks omitted).

Courts use a two-pronged inquiry in resolving the question of qualified immunity at the
summary judgment stage. Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014). First, courts ask
whether there is a violation of a federal right. Id. Next, courts consider whether the right at issue
was "clearly established" at the time of defendant's alleged misconduct. Id. at 1866 (quoting
Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Courts have discretion to decide the order in which

to engage these two prongs.

Pearson, 555 U.S. at 236.

To determine whether qualified

immunity protects defendants, the "relevant, dispositive inquiry is whether it would be clear to a
reasonable officer that the conduct was unlawful in the situation he confronted." Saucier v. Katz,
533 U.S. 194, 194-95 (2001); see also Anderson v. Creighton, 483 U.S. 635, 640 ("The contours

Page 10 - OPINION AND ORDER

of the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right."). Courts cannot "define clearly established law at a high level of
generality" and must consider the "violative nature of particular conduct[.]" ivfullenix v. Luna,
136 S. Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742) (emphasis in Mullenix). Such
specificity is especially important in the Fourth Amendment context, as it is sometimes difficult
for an officer to determine how legal doctrine will apply to a given factual situation. iV!ullenix,
136 S. Ct. at 308 (quoting Saucier, 533 U.S. at 201). Nonetheless, a "case directly on point" is
not required for the law to be clearly established. Stanton v. Sims, 134 S. Ct. 3, 5 (2013). The
question is whether "existing precedent ... placed the statutory or constitutional question beyond
debate." Id.
Defendants argue that, even if the individual officers violated plaintiffs Fomih
Amendment rights, qualified immunity still protects them because the violation was based on a
reasonable mistake regarding the existence of probable cause. Defendants aver that this case "is
precisely the type of situation qualified immunity is designed to address," considering the
conflicting witness accounts and physical evidence. Defs.' Mot. Summ. J. 12. Plaintiff counters
by reiterating his argument that, given the conflicts between Ms. Castleton' s statements and the
physical evidence, the officers had a clearly established duty to investigate fmiher before
arresting him. Specifically, plaintiff cites a Tenth Circuit case stating that it is established law
that "the probable cause standard of the Fomih Amendment requires officers to reasonably ...
investigate basic evidence[.]" Cortez v. iV!cCauley, 478 F.3d 1108, 1117 (10th Cir. 2007) (en
bane). Plaintiff also cites two Ninth Circuit cases stating that the officers must independently
investigate the basis of citizen witnesses' or alleged victims' knowledge, despite the presumed

Page 11 - OPINION AND ORDER

reliability of witness statements. Arpin v. Santa Clara Valley Transp. Agency, 261F.3d912, 925
(9th Cir. 2000); Fuller v. M G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991).
For the reasons set out in Section I.A of this opinion, supra, a jury could conclude from
the summary judgment record that the individual officers lacked probable cause to arrest
plaintiff. For qualified immunity purposes, then, the question is whether the officers' conduct,
viewed in the light most favorable to plaintiff, violated clearly established law.
Even in the absence of directly on-point precedent, I conclude that the individual
defendants are not entitled to qualified immunity at the summary judgment stage.

At a

minimum, it was beyond debate at the time of plaintiffs arrest that if (1) all available physical
evidence conflicts with a purported victim's version of events and is consistent with a purpo1ied
perpetrator's version of events; (2) the alleged perpetrator is the one who called the police for
help; and (3) the supposed victim is intoxicated and the supposed perpetrator is sober, there is a
duty to investigate ftlliher before making an atTest. Here, the only physical evidence was the
bruising on Ms. Castleton's back (which a jury could find conflicted with Ms. Castleton's
allegation that she was hit hardest in the neck and chest and/or was more consistent with falling
down backwards than with being hit by a bat), the shattered cell phone screen (which a jury
could find conflicted with Ms. Castleton's statements that plaintiff destroyed her phone by
hitting it two or three times with a metal bat), and the shards of glass allegedly visible on the bat
(which the jury could doubt existed based on the failure to take the bat into evidence and the
absence of any mention of the glass shards in the investigation report and probable cause
affidavit). Moreover, it was plaintiff who called the police, and he was sober whereas Ms.
Castleton was intoxicated. In sum, if the jury views the evidence in the way plaintiff urges, the

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officers' decision to arrest plaintiff violated clearly established law. The individual officers are
not entitled to summary judgment on plaintiffs Fomih Amendment claim.
C.

lvfunicipal Liability

Defendants also move for summary judgment on plaintiffs Fourth Amendment claim
against the City. As to his Fourth Amendment claim, plaintiffs municipal liability arguments
rest entirely on his asse1iion that the City "ratified" the actions of the individual officers by
permitting him to sit in jail for several days when a review of the Probable Cause Affidavit
would have revealed the illegality of his arrest.3
In a civil rights action under § 1983, a municipality cannot be held liable on a simple
theory ofrespondeat superior. 1'1fonell v. Dep't of Soc. Servs. of City ofNY., 436 U.S. 658, 692
(1978). Instead, the "municipality can be found liable under§ 1983 only where the municipality
itself causes the constitutional violation at issue." City of Canton, Ohio v. Harris, 489 U.S. 378,

385 (1989) (emphasis in original). "[W]hen execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury[,] the government as an entity is responsible under § 1983."
l'vfonell, 436 U.S. at 694. Whether relying on formal or infonnal policy, the plaintiff must

ultimately show the municipality consciously disregarded the consequences of its action or
inaction.

Connick v. Thompson, 563 U.S. 51, 62 (2011).

Because courts apply "rigorous

standards of culpability and causation," the plaintiff must show that the violation of a
constitutional right is the "obvious consequence" of the city's alleged policy, Bd. of Cty.
Comm'rs of B1yan Cty., Okla. v. Brown, 520 U.S. 397, 405, 410 (1997), or that the policy

presents an "unjustifiably high risk ofhaim," Farmer v. Brennan, 511 U.S. 825, 836 (1994).
3

Plaintiff initially based his 1'vfonell claim on a failure-to-train theory, but makes no
argument in supp01i of that theory in the briefing on the motion for summa1y judgment.
Page 13 - OPINION AND ORDER

Plaintiff argues that the City "ratified" his arrest by letting him remain in jail for three
days after being notified of his arrest and the facts sutTOunding his atTest. Pl.'s Resp. Defs.' Mot.
Summ. J. 16-17. In their reply, defendants provide two counters. First, they argue that this new
theory, which was never made in plaintiffs pleadings or discovery, should not be allowed at this
juncture. Second, defendants aver that, even if the Court were to consider the new theory, it is
without merit.

Defendants point to legal authority showing that the only individuals with

policymaking authority for the City of Eugene are the City Council, City Manager, and Chief of
Police, and that there is no evidence that any of those policymakers ratified the allegedly
unconstitutional actions of individual defendants.
Defendants are correct that the evidence here is insufficient to pe1mit plaintiffs claim
against the City to go forward. To proceed on a ratification theory, a plaintiff must show that an
official with final policymaking authority "expressly approved" the decision of a subordinate and
that the decision was "cast in the form of a policy statement." City of St. Louis v. Praprotnik,
485 U.S. 112, 130 (1988). Neither "[s]imply going along with discretionary decisions made by
one's subordinates" nor "fail[ing] to investigate the basis of a subordinate's discretionary
decisions" amounts to ratification. Id Because there is insufficient evidence to show that a
policymaker for the City of Eugene ratified plaintiffs arrest, defendants are entitled to summary
judgment on plaintiffs Fourth Amendment claim against the City.

II.

Fourteenth Amendment
Defendants next move for summary judgment on plaintiffs claim that individual

defendants violated plaintiffs right to equal protection under the Fourteenth Amendment.
Defendants argue that the mere fact that plaintiff is black, Ms. Castleton is white, and the arrest
may have been unsuppo1ied by probable cause is insufficient to raise an inference of

Page 14- OPINION AND ORDER

discrimination, and that plaintiff failed to present fmiher evidence of discriminatory intent.
Plaintiff maintains that race and gender provide the most reasonable explanation for the officers
believing Ms. Castleton even though relevant evidence cotrnborated plaintiffs version of events.
The Equal Protection Clause provides that "[n]o State shall ... deny to any person within
its jurisdiction the equal protection of the laws," U.S. Const. amend. XIV, § 1, and prevents
"official conduct discriminating on the basis of race," Washington v. Davis, 426 U.S. 229, 239
(1976). "[W]henever the government treats any person unequally because of his or her race, that
person has suffered an injury that falls squarely within the language and spirit of the
Constitution's guarantee of equal protection." Adarand Constructors v. Pena, 515 U.S. 200,
229-30 (1995).
"To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of
the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or
purpose to discriminate against the plaintiff based upon membership in a protected class." Lee v.
City of L.A., 250 F.3d 668, 686 (9th Cir. 2001) (citation and quotation marks omitted). Because

plaintiff may ultimately prove discriminatory intent by direct or indirect evidence, "[p]roof of
discriminatory motive ... can in some situations be inferred from the mere fact of differences in
treatment." Sischo-Nownejadv. lv!erced Cmty. Coll. Dist., 934 F .2d 1104, 1112 (9th Cir. 1991),
superseded on other grounds as explained in Dominguez-Cuny v. Nev. Transp. Dep 't, 424 F.3d

1027, 1041 (9th Cir. 2005); see also id. at 1113 (explaining that courts look for evidence of
discriminatory intent in § 1983 claims in the same way comis search for discriminatory intent in
employment discrimination cases). As such, "in an equal protection claim based on selective
enforcement of the law, a plaintiff can show that a defendant's alleged rational basis for his acts

is a pretext for an impermissible motive." Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 591 (9th

Page 15 - OPINION AND ORDER

Cir. 2008) (citation and quotation marks omitted) (emphasis in original); see also Estate of
1vfacias v. Ihde, 219 F.3d 1018, 1028 (9th Cir. 2000) ("There is a constitutional right, however, to

have police services administered in a nondiscriminatory manner-a right that is violated when a
state actor denies such protection to disfavored persons.'').
Citing this Court's prior Opinion and Order rnling on defendants' motion to dismiss,
plaintiff argues that there is sufficient evidence to show that "race-based consideration
consciously or unconsciously motivated law enforcement officers' conduct."

Pl's Resp. to

Defs.' Mot. Summ. J. 16. While that argument was sufficient at the pleading stage, "[t]o defeat
summary judgment the nonmoving party must go beyond the pleadings and, by its own affidavits
or discovery, 'set foith specific facts showing that there is a genuine issue for trial."' Long v.
Cty. ofL.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).

In my prior Opinion and Order, I stated that plaintiffs allegations that the individual
officers were motivated by racial bias, combined with plaintiffs assertion that physical evidence
corroborates his story and not Ms. Castleton's, gave "rise to a plausible inference" that the
officers' conduct was motivated by race-based considerations. Johns, 2017 WL 663092 at *5. It
is important to distinguish a plausible inference at the motion to dismiss stage from a plausible
inference in the summary judgment context. At the pleadings stage, a claim is plausible on its
face "when the plaintiff pleads factual content that allows the comt to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Because a
motion to dismiss is filed prior to discovery, greater leaps in logic are permitted; if it is
reasonable to infer that discovery could lead to evidence of discriminatory intent, the case may
proceed. For a summary judgment motion, however, plausible inferences solely based on the

Page 16 - OPINION AND ORDER

complaint are not enough, as the parties have had an opportunity to obtain relevant evidence
through discovery.
A close reading of the prior Opinion and Order reveals that I denied defendants' motion
to dismiss plaintiffs Fourteenth Amendment claim because they "[asked] the Court to apply
heightened pleading requirements" when the Ninth Circuit has clearly rejected such proof
requirements "at the pleadings stage[.]" Johns, 2017 WL 663092 at *5. I further elaborated the
different standards applicable to motions to dismiss and motions for summary judgment by
stating that the case law on which defendants relied was "not illustrative of how the Ninth Circuit
approaches motions to dismiss, since it was a decision on a motion for summary judgment after
plaintiff had the oppo1tunity to make a record tlu·ough discovery." Id. Having clarified that
making out a plausible inference of discrimination at the motion to dismiss stage is not in and of
itself sufficient to satisfy the summary judgment standard, I now look to the evidence provided
by plaintiff.
Plaintiff points to two declarations filed in supp011 of its response to defendants' motion
to dismiss. After reviewing those declarations, I have no choice but to conclude that plaintiff
failed to identify specific facts demonstrating a genuine issue for trial. My reasoning for that
conclusion is twofold.
First, the declarations fall sh011 of showing that racial bias has so infected the Eugene
Police Depa1tment ("EPD") that a jury could find there is a municipal policy or custom of
permitting racially motivated a11'ests. "A plaintiff cannot prove the existence of a municipal
policy or custom based solely on the occurrence of a single incident or unconstitutional action by
a non-policymaking employee." Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir.
1989) (emphasis in original). Rather, the custom must be so "persistent and widespread" to

Page 17 - OPINION AND ORDER

constitute a "pennanent and well settled" city policy. ]o,;fonell, 436 U.S. at 691. Liability for
improper custom "must be founded upon practices of sufficient duration, frequency and
consistency that the conduct has become a traditional method of carrying out policy." Trevino v.
Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Bennett v. City of Slidell, 728 F.2d 762, 767

(5th Cir. 1984)); see also 1'.feehan v. L.A. Cty., 856 F.2d 102 (9th Cir.1988) (two incidents not
sufficient to establish custom); Davis, 869 F.2d at 1230 (manner of one mTest insufficient to
establish policy).
The first declaration is from Charles Dalton. Dalton came to Eugene in 1975 as a student
at the University of Oregon. Within less than an hour of his arrival, an EPD officer stopped him
for providing a cigarette to another young black man. Later, in his capacity as the spokesperson
for NAACP, Dalton learned that the EPD kept a photo book of all black men in Eugene who
stayed more than a week, and that his picture was also in that book. In the 1990s, Dalton was
instrumental in pursuing a lawsuit brought on behalf of two young African-American men
wrongly anested by the EPD. See Ross v. City of Eugene, 950 P.2d 372 (Or. Ct. App. 1997).
The second declaration is from Eric Richardson, the president of the Eugene-Springfield area
NAACP. Richardson's declaration quotes Dalton's declaration at length, adding only one new
relevant factual allegation: that after Richardson's sister called the police to help her mentally ill
son, they instead anested the son and forcibly detained Richardson's sister. See Elliott v. City of
Eugene, 2017 WL2174956 (D. Or. May 17, 2017). 4

In granting or denying a motion for summary judgment, I am constrained to ruling on the
evidence presented by the pmiies. I am fully aware of the racial bias prevalent in our society and
4

Elliott went to trial on claims of excessive force against two City of Eugene police
officers. Elliott v. City ofEugene, D. Or. Case No. 6:16-cv-00022-MC, doc. 87. The jury found
in favor of defendants on one claim and deadlocked on the other claim. Id. doc. 134.

Page 18- OPINION AND ORDER

I am deeply concerned about its implication in the policing context. But the evidence in this
summmy judgment record cannot sustain a Fomieenth Amendment claim due to its sporadic and
anecdotal nature. The declarations document several problematic policing practices, but most of
the cited incidents happened twenty, thhiy, or even f01iy years ago. The declarations discuss
only one contemporary incident of allegedly racially discriminatory policing.

In sum, the

evidence is too thin to suppo1i an inference that EPD has either a "persistent and widespread"
custom or a "permanent and well settled" policy to pe1mit racial biases to drive its aiTest
decisions. lvfonell, 436 U.S. at 691.
Second, there is no evidence to supp01i plaintiffs Fomieenth Amendment claim as to the
individual officers' actions.

Plaintiff did not, for example, provide any direct evidence of

discriminatory intent such as derogatory statements about a particular race. See Rashdan v.
Geissberger, 764 F.3d 1179, 1183 (9th Cir. 2014). Nor did he point to some evidence in the
record showing that he was treated differently from similarly situated individuals of other races.
See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). Neither declaration
addresses any facts relevant to the individual officers' actions as they relate to plaintiffs
Fou1ieenth Amendment claim. Plaintiffs sole evidence of discriminatory intent with respect to
his Fourteenth Amendment claim is that he is a black man, Ms. Castleton is a white woman, and
available evidence corroborated his story and conflicted with Ms. Castleton's story.

That

evidence is simply insufficient to pennit the equal protection claim to proceed to trial. Cf
Elliott, 2017 WL 2174956 at *6 (granting summary judgment to the defendant officer on the
equal protection claim because "the mere fact that a plaintiff is a different race than an officer" is
insufficient evidence to withstand a motion for summary judgment).

Page 19- OPINION AND ORDER

Defendants satisfied their initial burden to show that plaintiff "does not have enough
evidence" to proceed to trial on his Fourteenth Amendment claim. Nissan Fire & iVfarine Ins.

Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Because plaintiff failed to
identify specific facts demonstrating that there is a genuine issue for trial as to his equal
protection claim, defendants' motion for summary judgment on plaintiffs Fourteenth
Amendment claim is granted.
III.

Negligence
Defendants next ask for summary judgment on plaintiffs negligence claim. This claim is

asserted against the City only, and it rests on two theories. First, plaintiff contends that the City
is directly liable for "negligently hiring, training, supervising, and/or disciplining defendants."
First Am. Comp!.

~

39. As noted in Section I.C, supra, plaintiff appears to have abandoned any

failure-to-train theory by declining to introduce evidence or make any arguments to suppmi that
theory. The summary judgment record is similarly devoid of information about the City's hiring,
supervisory, or disciplinary decisions. Accordingly, plaintiffs direct-liability negligence claim
cannot proceed to trial.
Second, plaintiff argues that the City is vicariously liable for the individual officers'
failure to "exercise reasonable care in the performance of their official duties." Id.

~

38.

Defendants argue that this vicarious-liability negligence claim must be dismissed because it is
based on intentional conduct. Defendants aver that an intentional act, like an an·est, can support
a negligence claim only under very narrow circumstances not present here. See JV!urphy v. City

of Portland, 585 P.2d 732, 733 (Or. Ct. App. 1978) (allowing a claim for negligent false atTest
when officers atTested the wrong person). In suppo1i of this argument, defendants rely on

Page 20 - OPINION AND ORDER

Kasnick v. Cooke, 842 P.2d 440, 441 (Or. Ct. App. 1992), in which the Oregon Court of Appeals

held that "there is no such thing as a negligent fist fight."
I rejected this argument at the pleadings stage, but recognizing that a different standard
applies at the summary judgment stage, I will revisit it here. I remain convinced that Kasnick's
rule is inapposite here. Defendants cite a string of District of Oregon cases that have stated,
often in broad terms, that intentional conduct like an arrest cannot support a negligence claim. A
closer look at those cases reveals that they all involved plainly intentional conduct such as use of
excessive force in arrest or being rude and disrespectful during an investigation. See, e.g.,
Wagoner v. City of Portland, 2017 WL 2369399, *11 (D. Or. May 31, 2017); Rodrigues v.
Jackson Cty., 2015 WL 404577, *4 (D. Or. Jan. 29, 2015); Aranda v. City oflv!cMinnville, 942

F. Supp. 2d 1096, 1110 (D. Or. 2013); Coleman v. Hubbard, 2013 WL 3047306, *4 (D. Or. June
15, 2013). It is difficult to see how negligence principles could be applied to such scenarios,
which do not involve a failure to exercise due care to avoid a foreseeable risk of harm. But
plaintiffs negligence theory is best framed as one of negligent investigation, which is an entirely
different s01t of claim. See lvfendive v. State, By and Through Children's Serv. Div., 794 P .2d
807, 808 (Or. Ct. App. 1990) (recognizing the tort of negligent investigation). It is easy to see
how an officer's failure to appreciate obvious red flags in a purported victim's story might be
unintentional and yet still umeasonably create a risk of wrongful arrest.
Defendants next argue that plaintiffs negligence claim cannot survive summary
judgment because it rests on the same factual allegations that underlie his Fomth Amendment
claim. They cite a string of cases from this Court, all of which hold that, at the summary
judgment stage, a plaintiff cannot maintain a negligence claim if that claim is based on the same
facts that give rise to his constitutional claim under§ 1983. Defendants are correct that, for the

Page 21 - OPINION AND ORDER

past thitteen years, is has been the District of Oregon's consistent practice to bar negligence
claims from proceeding to trial under such circumstances. See Gregory v. City ofNewberg, 2015
WL 5577755, *8 (D. Or. Sept. 21, 2015); Rodrigues, 2015 WL 404577 at *4; Frankv. Cascadia
Healthcare Cinty., Inc., 2013 WL 867387, *5 n.5 (D. Or. Mar. 6, 2013); Woods v. Gutierrez,
2012 WL 6203170, *12 (D. Or. Dec. 12, 2012); Barringer v. Clackamas Cty., 2010 WL
5349206, *9 (D. Or. Nov. 22, 2010); Hadley v. City of Beaverton, 2010 WL 1257609, * 14 (D.
Or. Feb. 16, 2010); Whitfield v. Tri-Metropolitan Transp. Dist., 2009 WL 839484, *11 (D. Or.
Mar. 30, 2009); Saberi v. City of Portland, 2006 WL 2707995, *4 (D. Or. Sept. 18, 2006); Shilo
v. City of Portland, 2005 WL 3157563, *1-*2 (D. Or. Nov. 22, 2005); but see Rodriguez v. City
ofPortland, 2009 WL 3518004, *2 (D. Or. Oct. 21, 2009) (limiting this practice to the summary
judgment stage and permitting negligence and § 1983 claims predicated on the same facts to
proceed to discovery).
Some of the cases listed above have suggested that this principle is settled law. See
Whitfield, 2009 WL 839484 at *10 (stating that "a state law claim [based] on the same set of
facts as [a] civil rights claim" is "not permitted under the current law of this District"). That is a
mischaracterization of the effect district comt decisions have on future cases. "A decision of a
federal district cou1t judge is not binding precedent in either a different judicial district, the same
judicial district, or even upon the same judge in a different case." Camreta v. Greene, 563 U.S.
692, 709 n.7 (2011)); see also Starbuck v. City & Cty. ofS.F., 556 F.2d 450, 457 n.13 (9th Cir.
1977) ("The doctrine of stare decisis does not compel one district court judge to follow the
decision of another.") In other words, there is no law of this District apart from the law that has
been announced by the Supreme Comt and the Ninth Circuit.

Page 22 - OPINION AND ORDER

This makes good sense; even the federal courts of appeals issue precedential decisions in
only a fraction of the cases that come before them. See Hart v. lvlassanari, 266 F.3d 1155, 1161
(9th Cir. 2001) (noting the "almost four-fifths of the merits decisions of courts of appeals" are
issued in the form of unpublished memoranda, and so are not binding precedent). That is
because writing "a precedential opinion ... is an exacting and extremely time-consuming task."

Id. at 1177.
A judge drafting a precedential opinion must not only consider the facts of the
immediate case, but must also envision the countless pe1mutations of facts that
might arise in the universe of future cases. Modern opinions generally call for the
most precise drafting and re-drafting to ensure that the rule announced sweeps
neither too broadly nor too narrowly, and that it does not collide with other
binding precedent that bears on the issue.

Id. at 1176-77. Due to the volume of disputes we must adjudicate as district court judges, giving
each decision precedential effect would substantially unde1mine the circuit-wide goal of
"developing a coherent and internally consistent" body of case law to govern district courts in
the Ninth Circuit. Id. at 1176. Rather, district judges assist in the development of that consistent
body of law by carefully considering the principles to be applied in each case, checking one
another's work, and disagreeing with each other when a question is close. These practices
permit novel legal questions to percolate up to the appellate court, where they can be settled by a
panel of three judges.
I do not mean to suggest that we district judges must reinvent the wheel every time we
issue a decision. Uniformity in judicial decision making has value and prior decisions of the
same district court cany persuasive weight. When a district judge depmis from the decisions of
her colleagues (or from her own prior decisions), she should have good reasons for doing soand she should explain those reasons. Here, I have given due consideration to the decisions of
my colleagues.

I also note that I issued one of the preceding opinions.

Page 23 - OPINION AND ORDER

However, having

carefully reviewed the case law, I conclude that neither federal nor Oregon law prohibits
negligence claims and civil rights claims based on the same set of facts from proceeding to trial
together.
The rule that a negligence claim cannot proceed to trial when it arises from the same facts
underlying a§ 1983 claim was first announced in Shilo. Shilo is also the only case of those listed
above to provide a rationale for the rule; each of the other cases simply cites Shilo (or one of the
subsequent cases applying Shilo) without any reasoning as to why a negligence claim and a
§ 1983 claim cannot be based on the same facts. In order to explain my departure from this
longstanding consensus, therefore, I examine Shilo's reasoning in some detail.
In Shilo, the plaintiffs sued the City of Portland and certain named police officers,
asserting § 1983 claims for unreasonable search and seizure and excessive force as well as a
state-law claim for negligence. Shilo v. City ofPortland, 2005 WL 2083014, *1 (D. Or. July 25,
2005). The defendants filed a motion for summary judgment. This Comi denied the motion as
to the federal claims but granted summary judgment on the negligence claim.
Although mere negligence cannot sustain a § 1983 claim, qualified
immunity from§ 1983 may not preclude a separate claim based on common law
negligence. Thus, as 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. Then the question becomes how a court should evaluate these
claims under Oregon negligence law.

The court finds the test adopted by the Eleventh Circuit [in Lewis v. City of St.
Petersburg, 260 F.3d 1260 (11th Cir. 2001)] to be patiicularly instructive: "A
separate negligence claim based upon a district act of negligence may be brought
against a police officer in conjunction with a claim for excessive use of force.
Neveiiheless, the negligence component must pertain to something other than the
actual application of force during the course of the arrest." Lewis, 260 F.3d at
1263 (emphasis added) (citations omitted). This test is faithful to the principles
Page 24 - OPINION AND ORDER

previously articulated as it will not preclude plaintiffs from pursuing negligence
as a possible avenue of recovery, but at the same time, it does not subject police
officers to liability for negligent use of excessive force. It may be possible, for
example, to allege a § 1983 violation for the use of a flash-bang device, and
separate negligence claim if that flash-device, left unattended, starts a fire.

To support [their] negligence claim, plaintiffs reallege the very same facts that
were used to make out claims for umeasonable search and seizure. As alleged,
these facts do not give rise to a district act of negligence. Plaintiffs fail to make
any allegation separate from that which gives rise to a claim of excessive use of
force or improper knock and announce.
Shilo, 2005 WL 3157563 at *1-*2 (some citations and internal quotation marks omitted).
In Lewis, police officers in the St. Petersburg, Florida, fatally shot a man through his
windshield while he was stopped at an intersection.

260 F .3d at 1261.

The plaintiff, as

representative of the decedent's estate, sued the City of St. Petersburg, asse1iing a § 1983
excessive force claim and a state-law claim for negligent use of a firearm. The district cou1i
granted the City's motion to dismiss, and the plaintiff appealed only the dismissal of the
negligence claim.

Among other reasons, the district comi based its dismissal on its

determination that Florida law did not recognize a cause of action for negligent use of excessive
force. kl at 1263.
The Eleventh Circuit reversed and directed the district comi to allow the negligence
claim to proceed. In so doing, it held that "Florida law ... clearly recognizes a cause of action
for the negligent handling of a fireaim ... separate and distinct from the excessive force claim."
Id. The court thus began with the premise that, under Florida law, no negligence claim would lie

if the evidence permitted only the conclusion that the officers intentionally shot plaintiff. But at
the motion to dismiss stage, it was not possible to dete1mine whether the officers' conduct was
negligent or intentional. kl at 1264. Because the factual allegations in the complaint could

Page 25 - OPINION AND ORDER

suppmt an inference of either negligent or intentional conduct, the case could proceed to
discovery.
I conclude that Shilo misinterpreted Lewis in two critical respects. First, it took a rule
about ultimate liability and improperly applied it as a summary judgment screening tool. Lewis
stated that, under Florida law, if a defendant is found liable for use of excessive force under the
Fomih Amendment, that defendant could not for the same conduct be found liable for
negligence. Lewis also suggested that, in some cases, discovery might eliminate negligence as a
viable claim. See id. ("Although discovery may reveal that the shooting was an intentional act
and negligence played no part, at the motion to dismiss stage our review is limited to the
allegations in the complaint construed in the light most favorable to the plaintiff.") But nothing
in Lewis suggests that excessive force and negligence claims based on the same set of facts never
can proceed to trial together.
Lewis did say that, when a negligence claim is maintained in conjunction with a claim for

excessive force, "the negligence component must pertain to something other than the actual
application of force during the course of the arrest." Id. at 1263 (quoting City of 1Vfiami v.
Sanders, 672 So.2d 46, 48 (Fla. Dist. Ct. App. 1996)). But Lewis's holding makes plain that the

Eleventh Circuit did not take this to mean that any negligence claim predicated on the same
events as an excessive force claim had to be thrown out of comt. Rather, Lewis stands for the
opposite proposition: that when the facts underlying a negligence and excessive force claim
fairly could support an inference of liability on either claim, the negligence claim may proceed.
That rule should apply at both the motion to dismiss and summary judgment stages, and I
conclude that Shilo misinterpreted Lewis in holding otherwise.

Page 26 - OPINION AND ORDER

Second, Shilo' s reasoning is flawed because it extended Lewis's rule beyond excessive
force claims to all § 1983 claims. Lewis's reasoning is specific to the excessive force context,
because excessive force claims are constitutional analogs to intentional torts in that they require
an intentional application of force. I see no reason why that reasoning should be extended to all
Fourth Amendment claims, many of which do not require any showing of intent. See al-Kidd,
563 U.S. at 739 (stating that Fourth Amendment claims regarding "suspicionless searches" are
evaluating using an "objective reasonableness" standard).

Here, for example, plaintiffs

negligence claim centers on whether the individual officers breached their duty to perform a
thorough and competent investigation before making an arrest decision. There is no conflict
between a jury finding defendants liable on that negligence theory and simultaneously finding
that the officers' investigation fell sh011 of the Fomih Amendment's objective reasonableness
standard.
Shi/o's holding has been consistently applied in this District for many years. But, as
explained above, I am not persuaded by Shilo's reasoning. I therefore must consider whether
there is some other reason to grant defendants summary judgment on plaintiff's negligence
claim.
Nothing in the text of § 1983 suggests that Congress intended to preclude state-law
negligence claims based on the same facts underlying a civil rights claim. Perhaps for that
reason, at least two other district judges in the Ninth Circuit have declined to adopt Shilo's
reasoning when asked to do so. See Dougall v. City a/Tucson, 2017 WL 1210340, *7 n.16 (D.
Ariz. Mar. 31, 2017); Estate a/Lopez ex rel. Lopez v. City a/San Diego, 2014 WL 7330874, *12
(S.D. Cal. Dec. 18, 2014). Similarly, nothing in Oregon's case law suggests that § 1983 and
negligence claims are inherently incompatible. By analogy, Oregon cases suggest that a plaintiff

Page 27 - OPINION AND ORDER

could not ultimately prevail on claims for intentional infliction of emotional distress and
negligence based on the same underlying facts. But such claims may-and do-proceed to trial
together. See, e.g, Hamlin v. Wilderville Cemete1y Ass 'n, 313 P.3d 360, 367 n.3 (Or. Ct. App.
2013). That makes sense; proving intent is difficult, and the same evidence often could support
competing inferences of intentional conduct and negligence. And if two claims that rest on
competing inferences from the evidentiary record can proceed to trial, there certainly is no state-

law bar to claims based on the same (or at least complementary) inferences moving forward
together.
I conclude that Shilo and the cases that followed applied an inco!1'ect rule, and that
nothing in federal or state law requires pretrial dismissal of a negligence claim simply because it
rests on the same factual allegations as a civil rights claim under § 1983. 5 The only remaining
question is whether there is sufficient evidence in the summary judgment record to support a
finding that defendants were negligent. In order to make out a negligence claim under Oregon
law, a plaintiff must prove:
(1) that defendant's conduct caused a foreseeable risk ofha11n, (2) that the risk is
to an interest of a kind that the law protects against negligent invasion, (3) that
5

When an excessive force claim and a negligence claim based on the same underlying
factual allegations proceed to trial, there will be some risk that the jury will confuse issues and
improperly "subject police officers to liability for negligent use of excessive force." Shilo, 2005
WL 3157563 at *2. That risk-which is significant, pmiicularly in view of§ 1983's generous
attorney's fee rules for prevailing plaintiffs and the conflicting vicarious-liability rules for§ 1983
and negligence claims-could be mitigated by the use of carefully crafted jury instructions,
creation of special verdict forms, or phased presentation of mental-state questions to the jury. If
plaintiffs Fomieenth Amendment claim (which rests on allegations of intentional
discrimination) claim were proceeding to trial, those precautions would be necessary in this case.
But defendants are entitled to summary judgment on all claims which require proof of intent.
There is no inherent incompatibility between finding that the officers here perfo1med a deficient
investigation, leading to an a!1'est unsupp01ied by. probable cause, and that the officers were
negligent in perfo1ming that same investigation. In other words, on the pmiicular facts and
claims presented here, a jury could properly hold defendants liable for both negligence and
violating the Fourth Amendment.
Page 28 - OPINION AND ORDER

defendant's conduct was umeasonable in light of the risk, (4) that the conduct was
a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons
and plaintiffs iajury was within the general type of potential incidents and injuries
that made defendant's conduct negligent.

Son v. Ashland Cmty. Healthcare Servs., 244 P.3d 835, 841 (Or. Ct. App. 2010).
There is sufficient evidence in the summary judgment record to support plaintiffs
negligence claim. The fourth prong is met, as it is undisputed that defendants' conduct caused
plaintiffs harm. The second and fifth prongs are also met: plaintiff had a protected interest in
not being handcuffed, taken to jail, and forced from his home unless those actions were based on
a competent investigation which revealed probable cause he had committed a crime. Finally, the
first and third prongs, whether the defendant's conduct unreasonably caused a foreseeable risk of
hatm, track the Fomth Amendment, which requires the officers' actions to be objectively
reasonable. Defendants' motion for summary judgment on the negligence claim is therefore
denied.
IV.

Intentional Infliction of Emotional Distress
Finally, defendants seek summary judgment on plaintiffs intentional infliction of

emotional distress ("IIED") claim.

This claim is based only on the individual defendants'

conduct but is asserted against the City through vicarious liability. In order to prove a claim of
IIED, plaintiff must show that "(1) the defendant intended to inflict severe emotional distress on
the plaintiff, (2) the defendant's acts were the cause of the plaintiffs severe emotional distress,
and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially
tolerable conduct."

lvfcGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995) (citation and

quotation marks omitted). "Whether conduct constitutes an extraordinary transgression of the
bounds of socially tolerable conduct is a question oflaw." Harris v. Pameco Corp., 12 P.3d 524,
529 (Or. Ct. App. 2000).
Page 29 - OPINION AND ORDER

Plaintiffs IIED claim fails for two reasons. First, there is insufficient evidence from
which a jury could conclude that defendants intended to cause plaintiff emotional distress. As
explained in Part II, supra, the evidence in the summary judgment record cannot support an
inference of intentional discrimination. And with respect to the alleged flaws in the individual
officers' investigation, there is insufficient evidence that they intentionally overlooked
inconsistencies in Ms. Castleton' s story in order to inflict emotional distress on plaintiff.
Second, even drawing all factual inferences in plaintiffs favor, the conduct of the individual
officers was not so outrageous that it transgressed the outer bounds of socially tolerable
behavior. Defendants are entitled to summary judgment on plaintiffs IIED claim.
CONCLUSION

Defendants' motion for summary judgment (doc. 55) is GRANTED IN PART and
DENIED IN PART as follows: the motion is denied with respect to the Fourth Amendment
claim against the individual officers, denied with respect to the vicarious-liability negligence
claim against the City, and otherwise granted.
IT IS SO ORDERED.
Dated

thi~fJanuary2018.

C2~UL_~

AnuAiken
United States District Judge

Page 30 - OPINION AND ORDER