Smith v. City of Dalles

Filing 70

ORDER - Defendants' motion for summary judgment (ECF 52 ) is GRANTED in part as to the state tort claims of intentional infliction of emotional distress and negligence and DENIED as to all other claims. Defendants' motion to strike Plaintiff's sur-reply (ECF 66 ) is DENIED as moot. Signed on 1/17/2020 by Judge Michael H. Simon. (Mailed to Pro Se party on 1/17/2020.) (mja) Modified on 1/17/2020 (mja).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RONNIE SMITH,
Plaintiff,

Case No. 6:16-cv-01771-SI
ORDER

v.
CITY OF THE DALLES, a Municipal
corporation; and KOJI NAGAMATSU, in his
individual and official capacity as City of The
Dalles Police Officer,
Defendants.
Ronnie Smith, pro se Plaintiff.
Gerald L. Warren, GERALD WARREN LAW, 901 Capitol St. NE, Salem, OR 97301. Of Attorneys
for Defendants.
Michael H. Simon, District Judge.
Plaintiff filed this action pro se against the City of The Dalles (“the City”) and Koji
Nagamatsu, a police officer for the city. Plaintiff alleges that Officer Nagamatsu falsely arrested
and imprisoned him, thereby violating his Fourth and Fourteenth Amendment rights in
contravention of 42 U.S.C. § 1983. Plaintiff also brings state law claims for false arrest and
imprisonment, intentional infliction of emotional distress, and negligence. Additionally, he
brings a claim for “lost wages,” which the Court interprets as a request for damages rather than
an independent claim. Defendants move for summary judgment on the basis that there was
probable cause for Plaintiff’s arrest, that Plaintiff failed to comply with the notice requirement of
the Oregon Tort Claims Act, that Plaintiff’s intentional infliction of emotional distress claims are

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not directed at Defendants, and that Defendants had no duty to investigate beyond finding
probable cause. For the reasons stated below, the Court grants in part Defendants’ motion for
summary judgment and denies it in part.
STANDARDS
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
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).
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “Unless it is
absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice
of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”
Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original)
(quoting Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under
Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” This standard “does
not require ‘detailed factual allegations,’” but does demand “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555).
BACKGROUND
On May 28, 2015, an employee at Grinders Coffee in The Dalles called 911 to report that
a man had stolen a tip jar with cash from the coffee shop. The employee described the suspect as
wearing a white shirt with the letters “LA,” and said that he was carrying a black backpack as he
walked westbound on Third Street toward the Wells Fargo Bank. Emergency services (911)
dispatched Officer Nagamatsu to investigate. The officer spotted Mr. Smith 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 Mr. Smith to drop the bag and put
his hands behind his back. Mr. Smith complied. Officer Nagamatsu explained that he was
detaining Mr. Smith because he fit the description of the suspect in the coffee shop theft. Officer
Nagamatsu put Mr. Smith in handcuffs and performed a protective pat-down of Mr. Smith to
ensure he was not carrying a weapon. During the pat-down, Officer Nagamatsu discovered a
“wad” of dollar bills. As Officer Nagamatsu detained Mr. Smith, 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 from the coffee shop and said the witnesses positively identified Mr.
Smith as the suspect from that distance. Officer Nagamatsu then read Mr. Smith his Miranda
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rights and arrested him for Theft III, a misdemeanor offense. Officer Nagamatsu then took Mr.
Smith to the Northern Oregon Regional Correctional Facility for booking.
DISCUSSION
A. Constitutionality of the Arrest
There is no reasonable dispute that probable cause existed when Defendants assert the
arrest took place. At that point, police had stopped Mr. Smith just blocks from the scene shortly
after the theft occurred, he matched the description of the suspect, and an eyewitness had
positively identified him, although from a block away. Mr. Smith, however, contends that the
arrest occurred when Officer Nagamatsu put Mr. Smith in handcuffs. At that point, there had not
yet been an eyewitness identification, and Defendants do not appear to contend that probable
cause had been established at that point.
“Under ordinary circumstances, drawing weapons and using handcuffs are not part of a
Terry stop.” United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001). “Nevertheless, we
allow intrusive and aggressive police conduct without deeming it an arrest… when it is a
reasonable response to legitimate safety concerns on the part of the investigating officers.” Id.
Such intrusive means to effect a stop have been justified when police have information that the
suspect is currently armed or the stop closely follows a violent crime. See Washington v.
Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996); Miles, 247 F.3d at 1012. Officer Nagamatsu’s
declarations provide no explanation for why he placed Mr. Smith in handcuffs. There is a
genuine dispute as to whether there existed such legitimate safety concerns to justify Officer
Nagamatsu’s use of handcuffs before probable cause was established.
B. Constitutionality of the Frisk and Search
The Court reads Mr. Smith’s complaint also to allege that Officer Nagamatsu violated
Mr. Smith’s Fourth Amendment rights by performing a pat-down prior to the (undisputed) arrest
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and reaching into his pocket in the course of that pat-down. The complaint alleges: “[t]he stop
was illegal when the defendant Koji Nagamatsu seized and searched…which violated plaintiff’s
rights under the fourth and fourteenth amendment of the US constitution. The Defendant knew
what he did was illegal by putting his hand in plaintiff’s pocket without consent prior to
arrest…” ECF 47 at ¶ 5.
There is a genuine issue of material fact as to whether Officer Nagamatsu violated the
Fourth Amendment when he performed a protective pat-down on Mr. Smith and when he
reached into Mr. Smith’s pocket to pull out several crumpled dollar bills. An officer may conduct
a “Terry stop” when he has a reasonable, articulable suspicion that a person has committed a
crime. Terry v. Ohio, 392 U.S. 1. Insofar as Mr. Smith alleges that Officer Nagamatsu violated
the Fourth Amendment in conducting the stop, his claim fails. There is no genuine dispute that
Officer Nagamatsu reasonably suspected Mr. Smith of having stolen the tip jar, as police spotted
him within a block of the coffee shop matching the 911 description.
But “[a] lawful frisk does not always flow from a justified stop”.1 Thomas v. Dillard, 818
F.3d 864, 876 (9th Cir. 2016) (quoting United States v. Thomas, 863 F.2d 622, 628 (9th Cir.
1988). Rather, there is a “narrowly drawn authority to permit a reasonable search for weapons
for the protection of the police officer, where he has reason to believe that he is dealing with an
armed and dangerous individual.” Terry, 392 U.S. at 27 (emphasis added). To justify a frisk,
“the police officer must be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion.” Dillard, 818 F.3d at
1

This contrasts with a search incident to arrest, which a lawful arrest automatically
authorizes for purposes beyond the officer’s protection, including the discovery and preservation
of evidence. United States v. Robinson, 414 U.S. 218, 234 (1973). Defendants do not assert that
Mr. Smith was under arrest at the time of the pat-down or that they had probable cause to arrest
him until the eyewitness identified Mr. Smith as the person who had stolen the tip jar.
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876 (quoting Terry). A “mere inchoate and unparticularized suspicion or hunch that a person is
armed and dangerous does not establish reasonable suspicion.” Id. (citing Maryland v. Buie, 494
U.S. 325, 332 (1990)). Reasonable suspicion is an objective standard and the suspicion must be
individualized. Dillard, 818 F.3d at 876-77. Officer Nagamatsu’s incident report notes that Mr.
Smith was “very standoffish,” but neither the report nor Officer Nagamatsu’s declaration asserts
a belief by the officer that Mr. Smith was armed and dangerous. Without such a reasonable
belief, the protective pat-down would not have been justified under Terry. Mr. Smith was
suspected of stealing a small amount of money from a coffeeshop tip jar, a Class C misdemeanor
in Oregon punishable by a maximum of 30 days imprisonment. O.R.S. § 164.043, §161.615.
There is no undisputed evidence that Mr. Smith had committed a violent offence or was
behaving in a violent or threatening manner. Whether the circumstances of the stop created an
objectively reasonable suspicion that Mr. Smith was armed and dangerous is a fact question for
the jury.
Even if Officer Nagamatsu was justified in conducting the protective pat-down, there is
an additional dispute about whether reaching into Mr. Smith’s pocket violated the Fourth
Amendment. A protective pat-down is justified only to protect the safety of the officer and others
nearby, not to uncover and preserve evidence, and “must therefore be confined in scope to an
intrusion reasonably designed to discovery guns, knives, clubs, or other hidden instruments for
the assault of the police officer.” Terry, 392 U.S. at 29. To frisk a suspect, an officer “conduct[s]
a carefully limited search of the outer clothing of [the suspect] … to discover weapons which
might be used to assault him.” Id. at 30; see also Minnesota v. Dickerson, 508 U.S. 366, 373
(1993). An officer may reach into a suspect’s pocket during a protective pat-down if he feels an
object and it is “immediately apparent” that the object is a weapon or contraband. Dickerson, 508

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U.S. at 375. If an officer feels an object that is not clearly a weapon but could be one, he is
permitted to manipulate the object to ascertain that it poses no threat, but may go no further. See
United States v. Mattarolo, 209 F.3d 1153, 1158 (9th Cir. 2000).
Officer Nagamatsu states in his declaration that he “could not determine from my pat
down if the contents of his pocket included a weapon, so I reached into the pocket and removed
what turned out to be a wad of crumpled bills.” ECF 62. The incident report sheds no additional
light on what prompted Officer Nagamatsu to reach into Mr. Smith’s pocket. A wad of bills
stolen from a tip jar and hurriedly stuffed into a pocket would presumably be compressible and
would change shape when Officer Nagamatsu applied the force of a pat-down to it. Officer
Nagamatsu’s declaration does not explain why he thought the wad of cash was possibly a
weapon, or what kind of weapon he believed it could be. A reasonable jury could conclude that it
was unreasonable for Officer Nagamatsu to believe that a “wad of crumpled bills” could be a
weapon. A jury also could determine that Officer Nagamatsu could have employed a less
invasive strategy to eliminate the risk that Mr. Smith’s pocket held a weapon. For example, he
might have continued to manipulate the pocket until it became clear that the bills could not
possibly be a weapon.
1. Qualified Immunity
Officer Nagamatsu is not entitled to qualified immunity. All of the cases discussed above
– Miles, Terry, Dickerson, and Mattarolo, chiefly – clearly establish the law that police officers
must follow during a Terry stop and protective frisk.
C. Monell Claim
Mr. Smith has put forward no admissible evidence to support his contention that the City
of The Dalles trains its officers to handcuff and search suspects’ pockets without search
warrants. There is thus no genuine issue of material fact for a jury to decide on this claim.
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D. Intentional Infliction of Emotional Distress and Negligence
As a preliminary matter, Defendants argue that each of Mr. Smith’s state tort claims fail
because he did not comply with the notice requirement of the Oregon Tort Claims Act (OTCA),
which states that “a plaintiff cannot maintain a tort action against a public body, its officers, its
employees, or its agents unless sufficient ‘notice of claim’ is given ‘within 180 days after the
alleged loss or injury.’” Or. Rev. Stat. § 30.275(2)(b). Mr. Smith filed his first tort claim notice
on March 24, 2018, nearly three years after the arrest and search took place. Mr. Smith’s state
tort claims of intentional infliction of emotional distress and negligence are untimely and fail.
CONCLUSION
Defendants’ motion for summary judgment (ECF 52) is GRANTED in part as to the state
tort claims of intentional infliction of emotional distress and negligence and DENIED as to all
other claims. Defendants’ motion to strike Plaintiff’s sur-reply (ECF 66) is DENIED as moot.
IT IS SO ORDERED.
DATED this 17th day of January, 2020.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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