Smith v. City of Dalles

Filing 101

Opinion and Order - The Court DENIES Defendants' Motion for Summary Judgment (ECF 85 ). The Court finds as a matter of law that Officer Nagamatsu did not have probable cause to arrest Plaintiff at the time Officer Nagamatsu first placed Plaint iff in handcuffs. The Court GRANTS Plaintiff's Motion for Leave to File Second Amended Complaint (ECF 95 ), although Plaintiff may change his Stoot references to Tekoh. Plaintiff may file his Second Amended Complaint within 14 days of this Opinion and Order. Signed on 3/17/2021 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RONNIE SMITH,
Plaintiff,

Case No. 6:16-cv-1771-SI
OPINION AND ORDER

v.
CITY OF DALLES, a Municipal
corporation, and KOJI NAGAMATSU, in his
individual and official capacity as City of the
Dalles Police Officer,
Defendants.
James E. Geringer, KLARQUIST SPARKMAN, LLP, 121 SW Salmon Street, Ste. 1600, Portland,
OR 97204. Of Attorneys for Plaintiff.
Gerald L. Warren, THE LAW OFFICE OF GERALD L. WARREN AND ASSOCIATES, 901 Capitol Street
NE, Salem, OR 97301. Of Attorneys for Defendants.
Michael H. Simon, District Judge.
Plaintiff Ronnie Smith filed this action pro se against the City of The Dalles (the City)
and Koji Nagamatsu, a police officer for the City. Plaintiff alleged that Officer Nagamatsu
falsely arrested and imprisoned Plaintiff, thereby violating Plaintiff’s Fourth and Fourteenth
Amendment rights in contravention of 42 U.S.C. § 1983. Plaintiff also alleged claims for false
arrest and imprisonment, negligence, and intentional infliction of emotional distress under state
law. The City and Officer Nagamatsu filed a motion for summary judgment. Defendants argued
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that Plaintiff’s state law claims were barred under Oregon’s Tort Claims Act (OTCA) and also
failed on the merits. Defendants further argued that the Court should grant summary judgment on
Plaintiff’s federal claims because Officer Nagamatsu had probable cause to arrest Plaintiff after
the officer had conducted an investigatory stop of Plaintiff, placed handcuffs on Plaintiff,
searched Plaintiff and found cash suspected to be from a recent theft, and Officer Nagamatsu’s
partner had obtained an eyewitness identification of Plaintiff.
The Court granted summary judgment on Plaintiff’s state law claims for negligence and
intentional infliction of emotional distress as time-barred under the OTCA. Smith v. City of
Dalles, 2020 WL 265204, at *4 (D. Or. Jan. 17, 2020). For Plaintiff’s federal claims, the Court
found that probable cause existed for the arrest after the eyewitness identification, when
Defendants originally argued the arrest occurred. Id. at *2. The Court also concluded, however,
that disputed issues of material fact remained about whether it was lawful under the Fourth
Amendment for Officer Nagamatsu to place Plaintiff in “handcuffs before probable cause was
established,” to conduct a frisk of Plaintiff without a reasonable suspicion that he was armed and
dangerous, and to reach into his pocket and remove money as part of that search. Id. at *2-3. The
Court, therefore, denied Defendants’ motion for summary judgment on Plaintiffs’ federal claims
against Officer Nagamatsu. The Court granted summary judgment on Plaintiff’s Monell claim
against the City. Id. at *4. The Court later appointed counsel to represent Plaintiff at trial on his
remaining claims.
Now before the Court is a second motion for summary judgment filed by Defendants. In
this motion, Defendants argue that along with having probable cause at the time of the original
arrest, as argued in the first motion for summary judgment, Officer Nagamatsu had probable
cause to arrest Plaintiff at the time Officer Nagamatsu first placed Plaintiff in handcuffs. Thus,

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argue Defendants, Plaintiff was not subject to an unconstitutional seizure when Officer
Nagamatsu placed Plaintiff in handcuffs, and Officer Nagamatsu’s search was incidental to arrest
and therefore lawful. Defendants argue that there is no issue of fact for the jury and this case
should not proceed to trial.
Plaintiff responds that Defendants should be estopped, at this late stage in the litigation,
from changing their argument about when Plaintiff’s arrest occurred, but if the Court permits
Defendants to change their position, then Plaintiff should be allowed to add a Fifth Amendment
claim because Plaintiff was questioned while under arrest and before he was given his Miranda
warning. Plaintiff argues that if, as Defendants now assert in their new argument, Plaintiff was
arrested when he was placed in handcuffs, then Officer Nagamatsu needed to give Plaintiff his
Miranda warning at that time and his failure to do so gives rise to a § 1983 claim.1 Thus,
Plaintiff moves for leave to amend his complaint to add a claim under the Fifth Amendment.
Plaintiff also argues that Defendants’ motion for summary judgment fails on the merits because
Officer Nagamatsu did not have probable cause to arrest Plaintiff when he placed Plaintiff in
handcuffs. For the reasons stated below, Defendants’ motion for summary judgment is denied,
and Plaintiff’s motion to amend is granted.
STANDARDS
A. Motion for Summary Judgment
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

1

Plaintiff cites Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009), but his proposed
claim would more readily fall under Tekoh v. County of Los Angeles, 985 F.3d 713 (9th
Cir. 2021).
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dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
B. Motion to Amend
Rule 15(a)(2) of the Federal Rule of Civil Procedure provides that the “court should
freely give leave [to amend a pleading] when justice so requires.” A district court should apply
Rule 15’s “policy of favoring amendments with extreme liberality.” Price v. Kramer, 200
F.3d 1237, 1250 (9th Cir. 2000) (simplified). The purpose of the rule “is ‘to facilitate decision on
the merits, rather than on the pleadings or technicalities.’” Novak v. United States, 795
F.3d 1012, 1020 (9th Cir. 2015) (quoting Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143, 1152 (9th
Cir. 2011)). A district court, however, may, within its discretion, deny a motion to amend “due to
‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [and] futility of the amendment.’” Zucco Partners, LLC v.
Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (alteration in original) (quoting Leadsinger,
Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008)). “Not all of the factors merit equal
weight. As this circuit and others have held, it is the consideration of prejudice to the opposing
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party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
1052 (9th Cir. 2003). Futility of amendment, however, “can, by itself, justify the denial of a
motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Generally,
however, “[a]bsent prejudice, or a strong showing of any of the remaining [four] factors, there
exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence
Capital, 316 F.3d at 1052 (alterations added, emphasis in original). When weighing the factors,
all inferences should be made in favor of granting the motion to amend. Griggs v. Pace Am.
Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).
Leave to amend may be denied if the proposed amendment is futile or would be subject
to immediate dismissal. Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th
Cir. 2011). An amendment is futile “only if no set of facts can be proved under the amendment to
the pleadings that would constitute a valid and sufficient claim or defense.’” Barahona v. Union
Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (quoting Sweaney v. Ada Cnty, 119
F.3d 1385, 1393 (9th Cir. 1997)). If the facts or circumstances possibly could “be a proper
subject of relief, [a plaintiff] ought to be afforded an opportunity to test his claim on the merits.”
Foman v. Davis, 371 U.S. 178, 182 (1962). The standard for assessing whether a proposed
amendment is futile therefore is the same as the standard imposed under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, see, e.g., Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th
Cir. 1988), although “viewed through the lens of the requirement that courts freely give leave to
amend when justice so requires.” Barber v. Select Rehab., LLC, 2019 WL 2028519, at *1 (D. Or.
May 8, 2019) (quotation marks omitted).
BACKGROUND
On May 28, 2015, the manager at Grinders Coffee in The Dalles called 911 to report that
a man had attempted to steal a tip jar with cash from the coffee shop. The manager described the
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suspect as wearing a white shirt with the letters “LA” and brown shorts, and said that he was
carrying a black backpack as he walked westbound on Third Street toward the Wells Fargo
Bank. The manager stated that she “believed” the man had money from the tip jar in his pocket
but stated, “I don’t know if he currently has any [money] on him.” ECF 86-1 at 2. Emergency
services (911) dispatched Officer Nagamatsu to investigate. The officer spotted Plaintiff walking
in front of the Wells Fargo Bank wearing a white shirt with the letters “LA” and carrying a black
duffle bag.
Officer Nagamatsu got out of his patrol car and asked Plaintiff to drop the bag and put his
hands behind his back. Plaintiff complied. Officer Nagamatsu put Plaintiff in handcuffs. As he
was doing so, he explained that he was detaining Plaintiff because he fit the description of the
suspect in the coffee shop tip jar theft. Officer Nagamatsu then performed a protective pat-down
of Plaintiff to ensure he was not carrying a weapon. During the pat-down, Officer Nagamatsu
discovered one $10 bill and six $1 bills “crumpled up” in Plaintiff’s pocket. While he was in
handcuffs, Plaintiff stated that he did not know what was going on and denied taking money
from the tip jar or having knowledge of the theft.
As Officer Nagamatsu detained Plaintiff, Officer Michael Waine interviewed witnesses at
the coffee shop, which was about a block from the Wells Fargo Bank. After Officer Nagamatsu
conducted the pat-down and discovered the money, Officer Waine radioed Officer Nagamatsu.
Officer Nagamatsu informed Officer Waine that he found one $10 bill and several $1 bills on
Plaintiff. Officer Waine reported that witnesses remembered a $10 bill being in the tip jar before
Plaintiff attempted to take the jar but not after. Officer Waine also confirmed from the coffee
shop that a witness positively identified Plaintiff as the suspect from that distance. Officer
Nagamatsu then read Plaintiff his Miranda rights and placed him in the back of Officer

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Nagamatsu’s patrol vehicle. Officer Nagamatsu reported that Plaintiff made additional
statements when he was in the back of the officer’s car. Officer Nagamatsu transported Plaintiff
to the Northern Oregon Regional Correctional Facility for booking. Plaintiff was arrested,
booked, and arraigned on Theft III, a misdemeanor offense. Two years later, in 2017, he was
prosecuted, and found guilty. Plaintiff appealed, which entitled him to a trial de novo, and the
City dismissed the charge.
During Plaintiff’s trial, Officer Nagamatsu testified about the statements made by
Plaintiff both before and after Officer Nagamatsu provided Plaintiff with the Miranda warning.
There is a dispute about when Officer Nagamatsu began recording Plaintiff’s statement. Officer
Nagamatsu asserts in his police report that he turned on his recording device after giving Plaintiff
his Miranda rights. In his Amended Complaint, Plaintiff alleges that Officer Nagamatsu turned
on the recording device before reading Plaintiff his Miranda rights. At Plaintiff’s trial, Officer
Nagamatsu testified that he uses a digital recorder that he carries with him to record testimony.
Defendants submit a transcript of the audio recording from Officer Nagamatsu and describe it as
from the officer’s “body cam.” In the transcript of the audio recording of the interrogation of
Plaintiff, there is no mention that Officer Nagamatsu had informed Plaintiff of his Miranda
rights.
DISCUSSION
A. Motion for Summary Judgment
Defendants move for summary judgment on Plaintiff’s federal claims because, regardless
of Officer Nagamatsu’s subjective intent, Defendants argue that Officer Nagamatsu placed
Plaintiff under arrest when he put Plaintiff in handcuffs. Defendants assert that
Officer Nagamatsu objectively had probable cause to arrest Plaintiff at that time, and the Fourth
Amendment requires only objective, and not subjective, probable cause. Plaintiffs argue that
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Defendants are estopped from raising this argument and, in any event, the argument fails on the
merits because Officer Nagamatsu did not have probable cause.
1. Judicial Estoppel
In Defendants’ first motion for summary judgment, they argued that Officer Nagamatsu
had probable cause to arrest Plaintiff based on eyewitness testimony, which occurred after
Officer Nagamatsu placed Plaintiff in handcuffs and conducted the patdown search. Plaintiff
responded that he was unlawfully arrested as soon as he was placed in handcuffs and that he was
unlawfully searched. Defendants replied to that argument by reiterating that Officer Nagamatsu
had probable cause at the time of the arrest, which occurred after the eyewitness identification,
and arguing:
The detention in handcuffs occurred prior to [Plaintiff’s] lawful
arrest because he had been identified as a suspect in a crime and
refused to identify himself to Officer Nagamatsu. Detaining a
criminal suspect in handcuffs before probable cause to arrest is
established is not unlawful.
ECF 61 at 2; see also id. at 3 (“The brief period of time plaintiff was detained enabled officers to
quickly interview the witnesses before making the arrest. After probable cause was clearly
established, Officer Nagamatsu read plaintiff his Miranda Rights and arrested him.”).
Defendants argued that Officer Nagamatsu’s detention and search of Plaintiff was lawfully
conducted under Terry v. Ohio, 392 U.S. 1 (1968).
The Court agreed with Defendants that probable cause existed for Plaintiff’s arrest after
the eyewitness identification. That issue did not appear to be disputed by Plaintiff (representing
himself at that time). The Court, however, rejected Defendants’ argument and found a genuine
issue in dispute whether the stop and frisk was lawful under Terry.
Plaintiff argues that Defendants should be estopped from asserting that probable cause
existed at the earlier time, when Officer Nagamatsu placed Plaintiff in handcuffs, because
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Defendants previously asserted that the detention in handcuffs was not an arrest, but only a Terry
stop. A district court has discretion whether to impose judicial estoppel. New Hampshire v.
Maine, 532 U.S. 742, 750 (2001). In considering whether to apply judicial estoppel, a district
court may consider several questions, including:
(1) Is the party’s later position “clearly inconsistent with its earlier
position?” (2) Did the party succeed in persuading a court to accept
its earlier position, creating a perception that the first or second
court was misled? and (3) Will the party seeking to assert an
inconsistent position “derive an unfair advantage or impose an
unfair detriment on the opposing party?”
Baughman v. Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012) (quoting New
Hampshire, 532 U.S. at 750-51).
Regarding the first New Hampshire factor, Defendants’ current position is somewhat
inconsistent with Defendants’ previous position, but not “clearly” inconsistent. That Defendants
previously argued that Plaintiff was lawfully arrested at a later time is not necessarily
inconsistent with Defendants now arguing that Officer Nagamatsu had probable cause to arrest
Plaintiff at an earlier time. Defendants’ previous assertions, however, also appeared to suggest
that probable cause was not established at that earlier time. Defendants did not clearly articulate
that position, however, and the Court’s Order reflects the Court’s uncertainty about Defendants’
position in this regard. See, e.g., Smith, 2020 WL 265204, at *2 (“Defendants do not appear to
contend that probable cause had been established at that point [the time Plaintiff was placed in
handcuffs].”).
Regarding the second factor, although the Court found that probable cause existed at the
later time, Plaintiff did not appear to dispute that fact. The dispute was about the earlier point in
time, which is the time now at issue. Plaintiff argued that there was no probable cause to arrest
him when he was first handcuffed. Defendants argued that no probable cause was needed at that
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time because it was a lawful Terry stop. The Court found that the initial Terry stop was lawful,
but the Court did not accept Defendants’ position that placing handcuffs on Plaintiff was
necessarily lawful under Terry and found an issue of fact on that portion of the Terry stop. Id.
at *2.
Regarding the third factor, Defendants will not derive an unfair advantage, particularly
given Plaintiff’s motion to amend his complaint to add his Fifth Amendment claim. If
Defendants now want to change their version of the factual chronology, then Plaintiff may raise a
new claim in response to Defendants’ new factual assertion. This issue is discussed below in
addressing Plaintiff’s motion to amend. The Court declines to apply judicial estoppel to
Defendants’ argument that probable cause applied earlier than previously asserted.
2. Merits Analysis
a. Legal Standards for Determining Probable Cause Under Federal Law
The Ninth Circuit has explained :
Probable cause to arrest exists when officers have knowledge or
reasonably trustworthy information sufficient to lead a person of
reasonable caution to believe an offense has been or is being
committed by the person being arrested. While conclusive
evidence of guilt is of course not necessary under this standard to
establish probable cause, mere suspicion, common rumor, or even
strong reason to suspect are not enough. Under the collective
knowledge doctrine, in determining whether probable cause exists
for arrest, courts look to the collective knowledge of all the officers
involved in the criminal investigation.
Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008) (quotation marks and
citations omitted). Probable cause does not require certainty, nor is it a “beyond a reasonable
doubt” standard. Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015).
“The determination of probable cause is based upon the totality of the circumstances known to
the officers at the time of the arrest.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th
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Cir. 2015) (simplified). Officers, however, “may not ignore exculpatory evidence that would
‘negate a finding of probable cause.’” Yousefian, 779 F.3d at 1014 (quoting Broam v. Bogan, 320
F.3d 1023, 1032 (9th Cir. 2003)).
When the facts are undisputed, probable cause is a question of law for the court. See Scott
v. Harris, 550 U.S. 372, 381 n.8 (2007) (holding that what is “objectively reasonable” for an
officer to do under the Fourth Amendment is “a pure question of law”); Peng v. Mei Chin
Penghu, 335 F.3d 970, 979-80 (9th Cir. 2003) (“[W]here the material, historical facts are not in
dispute, and the only disputes involve what inferences properly may be drawn from those
historical facts, it is appropriate for this court to decide whether probable cause existed . . . .”).
“Where the facts or circumstances surrounding an individual’s arrest are disputed, the existence
of probable cause is a question for the jury.” Harper, 533 F.3d at 1022.
b. Application to Plaintiff’s Arrest
Defendants assert that probable cause existed to arrest Plaintiff when Officer Nagamatsu
placed Plaintiff in handcuffs. Defendants argue that a witness called 911, identified herself, and
described the suspect to the robbery, including what he was wearing, what he was carrying, and
in which direction he was walking. When Officer Nagamatsu arrived on the scene, he saw
Plaintiff, who matched the description given by the 911 caller. Defendants argue that the nexus
between the 911 caller’s descriptions and the officer’s observations of Plaintiff are objectively
reasonable evidence supporting probable cause.
Although there are some disputed facts involving Officer Nagamatsu’s questioning of
Plaintiff and the order of events, they do not relate to the issue of probable cause raised by
Defendants or the facts known by Officer Nagamatsu when he placed Plaintiff in handcuffs.
There is a transcript of the 911 call. Thus, the Court decides probable cause as a matter of law.

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The Supreme Court and the Ninth Circuit have held that a contemporaneous, reasonably
specific, reasonably identifiable 911 description is sufficiently reliable to support a “reasonable
suspicion” required for a Terry stop. See, e.g., Navarette v. California, 572 U.S. 393 (2014);
United States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004). Defendants have not cited,
however, and the Court could not find, a case in which only a 911 physical description was
sufficient evidence on which to base probable cause to arrest someone. Indeed, in a similar case
involving a physical description sent over the police radio, the D.C. Circuit explained the
difference between a Terry stop and an arrest when officers are provided a physical description.
United States v. Short, 570 F.2d 1051 (D.C. Cir. 1978). The description of the perpetrator in that
case—which was more detailed than the description of Plaintiff that the manager provided
to 911—was a black male, 18-19 years old, 5’9 to 5’10 tall, 145 to 155 pounds, “with a short
Afro-bush haircut and dark complexion. He was described as wearing a camel-colored, waistlength leather jacket and blue trousers.” Id. at 1053. Nonetheless, the D.C. Circuit held that
finding a suspect 1.5 blocks from the scene of a crime who matched the description, and who
walked away from police, did not constitute probable cause for arrest for burglary. Id. at 105354. The court, however, explained:
The fact that there was no reasonable basis for an arrest does not
mean that the police officer could not take action on the basis of
the police radio run. When he saw the appellant [the officer] had a
reasonable, articulable suspicion that the appellant might be
connected with the crime, and this was sufficient to warrant an
investigative stop under Terry. Pursuant to such a stop the officer
was free to take the appellant to the nearby scene of the burglary
for possible identification, and such an identification would have
given the police officer probable cause for arrest. And a Terry stop
would have justified a patdown search for weapons.
Id. at 1054-55 (footnotes omitted).

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The scenario described by the D.C. Circuit is substantially similar to what Officer
Nagamatsu did. He saw Plaintiff, had a reasonable suspicion that Plaintiff might be connected
with the theft, and stopped Plaintiff under Terry.2 It was only after obtaining the eyewitness
identification that Officer Nagamatsu believed he had the probable cause he needed for the
arrest.
The facts known to Officer Nagamatsu when he placed Plaintiff in handcuffs were that
Plaintiff matched the description of someone the coffee shop manager reported tried to take the
tip jar and possibly might have taken some money out of the tip jar. These facts are not
sufficient, by themselves, to establish probable cause to arrest Plaintiff for Theft III. They may
have provided Officer Nagamatsu with a “strong reason to suspect” Plaintiff, but that is “not
enough.” Harper, 533 F.3d at 1022. First, merely matching a physical description reported
over 911, without more, has not been held to be sufficient probable cause for arrest absent other
corroborating evidence, and the Court declines to so hold under these facts. Second, at the time
Officer Nagamatsu placed the handcuffs on Plaintiff, the officer did not even know if the crime
of Theft III had been committed because he did not know whether any money had been taken out
of the tip jar. The witness reported to 911 that she did not know whether money had been taken
out of the tip jar or whether the thief “currently has any [money] on him.” Defendants do not
argue that Officer Nagamatsu arrested Plaintiff for attempted theft when he placed the handcuffs
on Plaintiff and then later arrested Plaintiff for Theft III. Defendants’ motion for summary
judgment against Plaintiffs’ federal claims are denied.

The Court previously held that Officer Nagamatsu’s initial stop of Plaintiff was lawful
under Terry. The Court’s denial of summary judgment rested on events occurring after the initial
stop.
2

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3. Plaintiff’s State Law Claim for False Arrest and Imprisonment
The Court previously summarized Plaintiff’s state law claims as including false arrest and
imprisonment, negligence, and intentional infliction of emotional distress. Smith, 2020
WL 265204, at *1. In their first motion for summary judgment, Defendants also characterized
Plaintiff’s state law allegations as including those three claims. The Court granted summary
judgment on Plaintiff’s state law claims for negligence and intentional infliction of emotional
distress, but was silent on Plaintiff’s state law claim for false arrest and imprisonment. Id. at *4.
The Court stated that Defendants’ first motion for summary judgment was denied as to all other
claims, thereby apparently leaving Plaintiffs’ state law false arrest and imprisonment claim for
trial, without specifically discussing that claim. Id. In Defendants’ current motion for summary
judgment, they argue that Plaintiffs’ Amended Complaint does not assert a claim for false arrest
and imprisonment under state law. The Court rejects this argument.
Because the Court’s previous summary judgment ruling under the OTCA was ambiguous
about Plaintiff’s state law false arrest and imprisonment claim, the Court now specifically
addresses that argument. The Court also addresses Defendants’ current motion for summary
judgment about probable cause when Plaintiff was handcuffed with respect to Plaintiff’s state
law claim.
a. OTCA
Defendants previously argued that Plaintiff “immediately believed” his confinement and
arrest was unlawful when it occurred and thus the claim was barred by the OTCA. The Court
first notes that Plaintiff gave notice under the OTCA within 180 days from when the charges
against him were dismissed. Plaintiff was confined, arrested, charged, arraigned, and released in
May 2015. He was not prosecuted until 2017, and was convicted of misdemeanor Theft III in a
jury trial on June 6, 2017. After Plaintiff appealed, which entitled him to a trial de novo in
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Circuit Court, the City moved to dismiss the charges on February 8, 2018, and the court entered
the dismissal on February 9, 2018. Plaintiff sent his tort claim notice on March 25, 2018.
Under Oregon law, “‘false arrest’ and ‘false imprisonment’ contain identical legal
elements.” Fossen v. Clackamas Cnty., 271 Or. App. 842, 848 (2015). These elements are:
“(1) defendant must confine plaintiff; (2) defendant must intend the act that causes the
confinement; (3) plaintiff must be aware of the confinement; and (4) the confinement must be
unlawful.” Denucci v. Henningsen, 248 Or. App. 59, 67 (2012) (quoting Hiber v. Creditors Coll.
Serv., 154 Or. App. 408, 413 (1998)). A plaintiff must know, or reasonably should know, the
facts giving rise to a claim to trigger the OTCA 180-day deadline. Id. at 68. “The question of
what a plaintiff should have known, and when, is ordinarily a question for the jury.” Id.
As for when Plaintiff knew he had a cognizable tort such that he should have sent his tort
claim notice, the Court is persuaded by the analysis of the Oregon Court of Appeals in Denucci.
On the day of her arrest, plaintiff plainly knew that she had been
arrested. However, that fact alone was not enough to commence
the 180-day period. The facts must alert a plaintiff or a reasonable
person that three elements exist: “an injury occurred, the injury
harmed one or more of the plaintiff’s legally protected interests,
and the defendant is the responsible party.” Benson, 196 Or. App.
at 215, (emphasis added). That is, plaintiff had to know, or have
had a duty to learn, facts that would make an objectively
reasonable person aware of a substantial possibility that her arrest
harmed a legally protected interest.
If Henningsen had had probable cause to arrest plaintiff, the arrest
would not have harmed any legally protected interest that she had.
See, e.g., Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998).
Therefore, the 180-day period did not start until plaintiff knew, or
in the exercise of reasonable care should have known, facts that
would alert a reasonable person to a substantial possibility that her
arrest was unlawful.
Defendant offers, and we perceive, no reason to conclude that a
reasonable person would have known that her arrest was unlawful
on the day when it took place. Under these circumstances, we
cannot say, as a matter of law, that plaintiff had a duty to
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investigate the legality of her arrest immediately after she was
arrested; nor can we say, if she had such a duty, when an
investigation would have yielded facts that would have alerted a
reasonable person to a substantial possibility that the arrest was
unlawful. Therefore, the question of when plaintiff knew or should
have known facts indicating that her arrest was unlawful must be
answered by a jury.
Id. at 69-70 (emphasis in original) (footnote omitted).
Plaintiff knew he was arrested on May 15, 2015, but although he may have believed his
arrest was without probable cause, a court does “not impute to an arrestee knowledge that she [or
he] was arrested without probable cause merely because she [or he] suffered the indignity of an
arrest.” Id. at 69 n.9. Plaintiff’s subjective belief that he did nothing wrong and
Officer Nagamatsu should not have placed Plaintiff in handcuffs is different from facts that
would alert a reasonable person to a substantial possibility that his arrest was unlawful,
particularly when Officer Nagamatsu states that he told Plaintiff that he matched the description
of the suspect of a theft. Thus, the Court does not find as a matter of law that Plaintiff’s claim is
time-barred under the OTCA. This issue is for the jury.
b. Probable Cause
In resolving Defendants’ first motion for summary judgment, the Court found that
Officer Nagamatsu had probable cause to arrest Plaintiff after the eyewitness identification. That
finding, however, does not resolve Plaintiff’s claim for the short time he was confined before the
eyewitness identification. The same concerns with the reasonableness of the investigatory stop
and search remain under Plaintiff’s state law claim as with Plaintiff’s federal law claim. See, e.g.,
State v. Rudder, 347 Or. 14, 24-25 (2009) (“[In an investigatory stop,] opening and inspecting
the contents of a suspect’s pocket—is a different matter. It is a form of search that is more
intrusive than a patdown and that normally only occurs incident to a lawful arrest, when police

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are authorized to search the arrestee’s person and effects for evidence of the crime for which the
arrest was made.”).
Regarding whether Officer Nagamatsu had probable cause to arrest Plaintiff when he
placed Plaintiff in handcuffs, under Oregon law both subjective and objective probable cause is
required. See, e.g., State v. Vasquez-Villagomez, 346 Or. 12, 24 (Or. 2009) (“Under Article I,
section 9, of the Oregon Constitution, two components comprise probable cause: an officer must
subjectively believe that a crime has been committed and thus that a person or thing is subject to
seizure, and this belief must be objectively reasonable in the circumstances.” (simplified)).
Defendants do not assert that Officer Nagamatsu had a subjective belief that he had probable
cause to arrest Plaintiff until after the eyewitness identification, when Officer Nagamatsu gave
Plaintiff his Miranda warning and placed him in Officer Nagamatsu’s vehicle. Indeed, in Officer
Nagamatsu’s earlier declarations, in describing the events, he described that he arrested Plaintiff
after obtaining eyewitness identification and he described that chronology as explaining his
probable cause determination. Thus, Defendants fail to meet their burden to show at summary
judgment that probable cause existed under Oregon law at the time Officer Nagamatsu placed
Plaintiff in handcuffs.
4. Qualified Immunity
Defendants briefly argue that Officer Nagamatsu is entitled to qualified immunity for
making the purported arrest when he placed Plaintiff in handcuffs, even though Officer
Nagamatsu did not subjectively believe that he had probable cause to arrest Plaintiff at that time
and actually arrested Plaintiff later after conducting an investigation. Defendants’ entire
argument is that “[q]ualified immunity is warranted here because plaintiff’s arrest (i.e. at the time
of his handcuffing) followed the development of reasonable grounds to support probable cause
for plaintiff’s arrest and did not violate any clearly established constitutional law.” ECF 85 at 9.
PAGE 17 – OPINION AND ORDER

The Court rejects this argument because the purported arrest at the time Officer Nagamatsu
placed handcuffs on Plaintiff did not follow the development of reasonable grounds to support
probable cause—the Court finds that Officer Nagamatsu did not have probable cause to arrest
Plaintiff at that time. Further, the purported arrest violated clearly established constitutional law.
The “relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). Thus, to withstand Defendants’
argument that Officer Nagamatsu has qualified immunity for Plaintiff’s federal claims stemming
from Plaintiff’s arrest, Plaintiff must show that a reasonable officer would not have arrested
Plaintiff for theft based on only the 911 call and the fact that Plaintiff matched the caller’s
physical description, without further corroborating evidence or conducting an investigation,
including investigating whether the suspect had taken money and a theft had even occurred.
As explained above, the information from the 911 call and Officer Nagamatsu’s
confirmation that Plaintiff matched the witness caller’s physical description is sufficient for an
investigatory (or Terry) stop. In 2015 it was clearly established, however, that such information
alone is not sufficient to make an arrest. As explained by the Ninth Circuit:
We decline to adopt Appellees’ argument that merely because
citizen witnesses are presumptively reliable, the officers in this
situation had no duty to examine further the basis of the witness’
knowledge or talk with any other witnesses. We agree with the
California Supreme Court that the general proposition that private
citizen witnesses or crime victims are presumed reliable does not
dispense with the requirement that the informant furnish
underlying facts sufficiently detailed to cause a reasonable person
to believe a crime had been committed and the named suspect was
the perpetrator.

PAGE 18 – OPINION AND ORDER

Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991) (simplified)3; see also id. (“[W]e
agree with the Fullers that the police officers had a duty to conduct an investigation into the basis
of the witness’ report . . . .”). Moreover, at the time of Plaintiff’s purported arrest, the Ninth
Circuit had discussed the need for officers to investigate after a citizen report identifying a
suspect. See Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988) (denying qualified
immunity when officers failed to investigate after a citizen identification of a suspect).
At the time Officer Nagamatsu placed the handcuffs on Plaintiff, neither Officer
Nagamatsu nor Officer Waine had examined the basis of any eyewitness’s knowledge, including
the 911 caller. That is why Officer Nagamatsu subjectively did not place Plaintiff under arrest
until after Officer Waine had interviewed the eyewitnesses, obtained more information about the
alleged crime, obtained eyewitness identification that Plaintiff was the alleged perpetrator, and
obtained confirmation that money had been taken from the tip jar. Before that investigation,
however, back when Plaintiff was first placed in handcuffs, there was no probable cause to arrest
Plaintiff and no reasonable officer could have concluded that there was. See, e.g., Merriman, 856
F.2d at 1335 (“A reasonable police officer would have made further inquiry before effecting a
warrantless arrest.”).
B. Motion to Amend
Plaintiff moves for leave to file a Second Amended Complaint, adding a claim alleging
that Officer Nagamatsu violated Plaintiff’s Fifth Amendment rights by interrogating him before
giving a Miranda warning and including statements from that interrogation in his police report,

The “situation” in Fuller was that officers had been told by one witness that the
Appellants “had handled the missing ring before leaving the store and that no one else in the
store had the ring” and by another witness that one Appellant “had run into the rest room and
asked everyone to exit, and that she appeared to be attempting to make herself throw up—
conduct consistent with an attempt to dispose of the ring.” 950 F.2d at 1443.
3

PAGE 19 – OPINION AND ORDER

which was introduced at Plaintiff’s trial, as well as testifying on the stand at Plaintiff’s trial about
statements made by Plaintiff. Defendants object, arguing that the proposed amendment is unduly
delayed and futile.
1. Futility
Defendants argue that the proposed amendment is futile because: (1) Plaintiff’s statement
was voluntary instead of coerced as required to state a Fifth Amendment claim; (2) Plaintiff
made his incriminating statement after Officer Nagamatsu gave the Miranda warning; and
(3) the claim is time-barred. The Ninth Circuit recently rejected Defendants’ first argument. In
Tekoh v. County of Los Angeles, the Ninth Circuit explained that a plaintiff “need only
demonstrate that he was in custody when he was questioned by [law enforcement] without
Miranda warnings” and that the district court erred by requiring the plaintiff “to prove that the
confession or statement was improperly coerced and not voluntary.” 985 F.3d 713, 725 (9th
Cir. 2021) (simplified). It is undisputed that Plaintiff was in custody and was questioned by
Officer Nagamatsu without Miranda warnings.
Defendants’ second argument is that Plaintiff made his incriminating statement that he
accidentally took the tip jar instead of his coffee after Officer Nagamatsu gave Plaintiff his
Miranda warning. There are two problems with this argument. The first is that the statement
about the tip jar is not the only statement used at Plaintiff’s trial, and other statements, although
not as incriminating, may have affected the jury’s verdict. There are at least some statements that
undisputedly were made before Plaintiff was Mirandized.
The second problem is that the sequence of events of Plaintiff’s questioning is not clear.
Officer Nagamatsu describes his pre-Miranda questioning in his police report, including that he
explained to Plaintiff that he met the description of the alleged thief, that Plaintiff denied taking
the money, that Plaintiff denied having knowledge of the crime, and that Plaintiff was
PAGE 20 – OPINION AND ORDER

“uncooperative.” Officer Nagamatsu states that he read Plaintiff his Miranda rights and then
Officer Nagamatsu turned on the digital recorder.
The transcript of the recorded conversation between Plaintiff and Officer Nagamatsu
does not reflect any statement that Plaintiff had been read his Miranda rights. The transcript of
the recording opens with Officer Nagamatsu asking Plaintiff his name, which a reasonable jury
could conclude would be a question that Officer Nagamatsu would have asked during his early
questioning of Plaintiff, and not several minutes later in the encounter after Officer Nagamatsu
had questioned Plaintiff, searched Plaintiff, confirmed the eyewitness identification, and given
the Miranda warning. Indeed, in Officer Nagamatsu’s police report, he states that Plaintiff would
not tell him his name “at first” and Officer Nagamatsu could not locate Plaintiff’s wallet or
identification (presumably during the search, which occurred before the arrest), which appears to
support that the officer asked Plaintiff’s name at the beginning of his questioning, not later when
they were in the car. Additionally, the transcript shows that this conversation includes Plaintiff’s
repeated denials, which Officer Nagamatsu describes in his police report as taking place before
he gave Plaintiff his Miranda warning. Plaintiff also alleges in his Amended Complaint and his
proposed Second Amended Complaint that the recorded interrogation took place before he was
Mirandized. Thus, it is not clear whether the recorded conversation took place before or after
Plaintiff was given his Miranda warning. Indeed, in summarizing the facts of the case in their
pending motion for summary judgment, Defendants described the conversation between Plaintiff
and Officer Nagamatsu on the recording as taking place before Plaintiff was given his Miranda
warning. Defendants “corrected” that factual chronology in responding to Plaintiff’s
Interrogatories.

PAGE 21 – OPINION AND ORDER

The timing of the recorded conversation is important because the alleged statement that
Plaintiff admitted to taking the tip jar purportedly took place right after Officer Nagamatsu
turned off his digital recorder. Defendants argue that because the recorded conversation took
place when the officer and Plaintiff were in the car and after Officer Nagamatsu Mirandized
Plaintiff, then this incriminating statement was made by Plaintiff after he was given his Miranda
warning. The record, however, is not clear about whether Plaintiff gave this statement before or
after he was Mirandized. The Court does not conclude that there are no set facts Plaintiff could
allege that would support that he made un-Mirandized incriminating statements that were used
against him at trial.
Defendants’ third argument is that the claim is time-barred. “It is well-established that
claims brought under § 1983 borrow the forum state’s statute of limitations for personal injury
claims.” Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026
(9th Cir. 2007). In Oregon, the personal injury limitations period is two years. Or. Rev. Stat.
§ 12.110. “Oregon’s discovery rule, however, also applies to claims asserted under § 1983.” Puff
Factory, LLC v. Port of Cascade Locks, 2020 WL 6547637, at *8 (D. Or. Nov. 6, 2020).
Defendants argue that Plaintiff had two years from the date Officer Nagamatsu used
Plaintiff’s incriminating statement at trial (June 2017) to allege Plaintiff’s Fifth Amendment
claim, and Plaintiff waited more than three years (January 2021) to move to amend. Plaintiff
responds that until Defendants changed their litigation argument and claimed that Plaintiff was
under arrest at the time Officer Nagamatsu placed Plaintiff in handcuffs, his pre-Miranda
interrogation was not a cognizable claim under Stoot. Plaintiff also argues that his pro se
pleading sufficiently put Defendants on notice of his Fifth Amendment claim because when
Plaintiff was proceeding pro se he attached to his Amended Complaint and incorporated by

PAGE 22 – OPINION AND ORDER

reference documents that described a Fifth Amendment violation and asserted that Officer
Nagamatsu unlawfully interrogated Plaintiff without giving him a Miranda warning.
Additionally, Plaintiff argues that counsel for Defendants informed counsel for Plaintiff that
Defendants did not have and could not obtain a transcript of Plaintiff’s underlying criminal trial,
and without a transcript Plaintiff could not pursue a Fifth Amendment claim. Only after
significant effort by counsel’s firm was counsel able to obtain a transcript in December 2020.
The Ninth Circuit did not decide Tekoh until January 15, 2021, the day Plaintiff moved to
amend to add his Fifth Amendment claim. Plaintiff relied on Stoot in his motion. Stoot held that
a plaintiff may assert a Fifth Amendment claim when unlawful police interrogation techniques
result in a statement that has been “used” in a criminal case “when it has been relied upon to file
formal charges against the declarant, to determine judicially that the prosecution may proceed,
and to determine pretrial custody status.” Stoot v. City of Everett, 582 F.3d 910, 925 (9th
Cir. 2009).
In Tekoh, the Ninth Circuit addressed, as an issue of first impression, “whether the use of
an un-Mirandized statement against a defendant in a criminal case is alone sufficient to support
a 42 U.S.C. § 1983 action based on the Fifth Amendment violation.” 985 F.3d at 714 (emphasis
added). The Ninth Circuit rejected the district court’s approach of requiring “that the
interrogation that procured the statement was unconstitutionally coercive under the totality of the
circumstances, with the Miranda violation only one factor to be considered.” Id. at 714-15. The
Ninth Circuit “conclude[d] that where the un-Mirandized statement has been used against the
defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has
been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim
against the state official who deprived him of that right under § 1983.” Id. at 715. The Ninth

PAGE 23 – OPINION AND ORDER

Circuit also concluded that when a police officer obtains the statement and includes it in a police
report, that officer “causes” the statement to be used against the defendant, even though the
officer is not the prosecutor. Id. at 724. Thus, even if the officer does not testify about
statements, but the prosecutor simply introduces the officer’s police report into evidence, the
officer may be held liable for the Fifth Amendment violation. Id. at 724-25; see also id. at 724
(“We do not hold that taking an un-Mirandized statement always gives rise to a § 1983 action.
We hold only that where government officials introduce an un-Mirandized statement to prove a
criminal charge at a criminal trial against a defendant, a § 1983 claim may lie against the officer
who took the statement.”).
It does not matter whether Plaintiff was arrested or was simply in custody when he was
questioned without being Mirandized. Both are potential violations. Thus, Defendants’ change in
theory of when Plaintiff was formally arrested did not create Plaintiff’s Fifth Amendment claim.
Defendants’ continuing changing factual assertions about when certain conversations between
Plaintiff and Officer Nagamatsu took place, however, are relevant considerations when
considering the discovery rule.
Considering all the unique circumstances here, there are several reasons this claim is not
futile as time-barred: (1) Plaintiff’s earlier pro se pleading that incorporated documents that
discussed the Fifth Amendment and Miranda violation, and therefore under the liberal pro se
pleading standard arguably allows this claim to relate-back, even though the Court interpreted
that pleading as not including a Fifth Amendment claim; (2) the requirement that the statement
must have been “used” at trial and Defendants’ contention that no trial transcript was available
until appointed counsel obtained a transcript in December 2020, thereby putting Plaintiff on
notice of the elements of his claim under the discovery rule at that time, particularly considering

PAGE 24 – OPINION AND ORDER

the difficulty a pro se, incarcerated plaintiff would have in obtaining that transcript earlier when
a municipality declared it was unable to obtain it; (3) Defendants’ changing and internally
inconsistent assertions about the chronology of facts in this case, which again raises the
discovery rule; and (4) Tekoh’s recent decision holding as a matter of first impression that the
use of a defendant’s un-Mirandized statement alone in the prosecutor’s case-in-chief may give
rise to a § 1983 claim against the officer who took the statement. The Court, therefore, finds that
there may be some set of facts that can be proved under the proposed amendment that would
constitute a timely and valid Fifth Amendment claim. Barahona, 881 F.3d at 1134.
2. Undue Delay
Defendants argue that Plaintiff should have brought this claim in his earlier complaints in
this case. For the reasons the Court found that this claim is not time-barred, it is not unreasonably
delayed.
3. Prejudice
Defendants do not argue prejudice as a reason the Court should deny Plaintiff’s motion to
amend. In the conclusion of their opposition to the motion, however, Defendants state in a
conclusory manner that granting Plaintiff’s motion would cause them prejudice. Defendants
contend that having to defend a formerly unknown claim would be prejudicial. That is not
sufficient prejudice to deny a motion to amend—otherwise all motions to amend would be
subject to this form of prejudice. The Court notes, however, that while this motion was being
briefed, discovery closed in this case. The Court previously had granted Defendants leave to
depose Plaintiff. Defendants elected not to do so. Counsel for Defendants apparently
communicated to Plaintiff’s counsel that Defendants’ counsel did not believe that additional
discovery would be required if the Court allowed Plaintiff to add this claim. Nevertheless, if

PAGE 25 – OPINION AND ORDER

Defendants believe that additional reasonable discovery, including taking Plaintiff’s deposition,
is required, Defendants may move to reopen discovery.
4. Dismissed Claims
The Court notes that the proposed Second Amended Complaint contains claims against
which the Court granted summary judgment. Plaintiff clarifies that he includes these claims only
for appellate purposes and acknowledges that he will pursue in this litigation only the claims the
Court has allowed to continue. Those claims are Plaintiff’s state law claim for false arrest and
imprisonment, federal claim under the Fourth and Fourteenth Amendments, and federal claim
under the Fifth Amendment.
CONCLUSION
The Court DENIES Defendants’ Motion for Summary Judgment (ECF 85). The Court
finds as a matter of law that Officer Nagamatsu did not have probable cause to arrest Plaintiff at
the time Officer Nagamatsu first placed Plaintiff in handcuffs. The Court GRANTS Plaintiff’s
Motion for Leave to File Second Amended Complaint (ECF 95), although Plaintiff may change
his Stoot references to Tekoh. Plaintiff may file his Second Amended Complaint within 14 days
of this Opinion and Order.
IT IS SO ORDERED.
DATED this 17th day of March, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 26 – OPINION AND ORDER