Opinion
3:21-cv-01503-JR
07-21-2023
MARIA MENDOZA, an individual, Plaintiff, v. CITY OF PORTLAND, by and through PORTLAND POLICE BUREAU, a municipal corporation; PORTLAND POLICE OFFICER JOHN DOE 1, in his individual and official capacity; PORTLAND POLICE OFFICER JOHN DOE 2, in his individual and official capacity; and PORTLAND POLICE OFFICER JANE DOE, in her individual and official capacity, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiff Maria Mendoza filed this action against defendants the City of Portland (“City”) and three unnamed Portland Police Bureau (“PPB”) officers alleging claims under 42 U.S.C. § 1983 and state law arising out of her June 1, 2020, arrest. Defendants move for summary judgement pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendants' motion should be granted as to plaintiff's federal claims and the remaining state law claims should be remanded to state court.
The Court generally cites to defendants' evidence using the assigned docket numbers except when referring to the non-duplicative information produced by plaintiff. To the extent plaintiff and defendants attack each other's recitation of facts, this Court is not bound by either party's characterization of the evidence and instead independently reviews the record to determine whether summary judgment is appropriate. Scott v. Harris, 550 U.S. 372, 380 (2007). This is especially true where, as here, the events in question are captured on videos that are not alleged to have been doctored or altered. Id. at 381. As such, only the facts borne out by the record are recounted herein.
“Beginning on May 29, 2020, Portlanders have been demonstrating in the streets demanding justice for George Floyd and demanding an end to police violence.” Millar-Griffin v. Portland, 2023 WL 2843386, *1 (D. Or. Mar. 22), adopted by 2023 WL 2839330 (D. Or. Apr. 7, 2023) (citation and internal quotations omitted).
On May 31, 2020, protestors had “attempt[ed] to burn down the [PPB Multnomah County] Justice Center” located at 1120 S.W. 3rd Avenue in Portland, Oregon. Browning Decl. ¶ 4 (doc. 24); Sahli Decl. ¶ 4 (doc. 27). The following day, “some PPB Officers were dispatched to set up yellow tape barriers” in order to create “a buffer zone . . while a fence was being put up in a perimeter around the Justice Center.” Browning Decl. ¶¶ 3, 5 (doc. 24); Sahli Decl. ¶¶ 3, 5 (doc. 27).
The Court notes that the area to which Browning and Sahli were dispatched is not directly adjacent to the Justice Center and there is no evidence indicating that fencing was ultimately erected there.
On June 1, 2020, PPB Officers Bradley Browning and Shaun Sahli “were the only patrol officers dispatched to SW Main St. to control the flow of traffic between SW 4th Ave. and SW 5th Ave.” Browning Decl. ¶ 6 (doc. 24); Sahli Decl. ¶ 6 (doc. 27). They were instructed not to allow “the general public . . . through.” Simon Decl. Ex. 2, at 4 (doc. 25-1). To that end, Browning was monitoring the south end of Main Street and Sahli was monitoring the north end. Simon Decl. Ex. 3, at 6 (doc. 25-2).
After a tape permitter had been established, a small group of protesters began congregating in the area after a larger group had been dispersed from Lownsdale and Chapman Squares. Browning Decl. ¶ 7 (doc. 24); Simon Decl. Ex. 3, at 5 (doc. 25-2); Sahli Decl. ¶ 7 (doc. 27). Plaintiff, who identifies as a female “Mexican American,” was part of that group and crossed underneath the police tape from around 5th Avenue. Browning Decl. ¶ 8 (doc. 24); Simon Decl. Ex. 4, at 14 (doc. 25-3); Simon Decl. Ex. 5 (doc. 25-4); Sahli Decl. ¶ 8 (doc. 27); Pletch Decl. Ex. 2, at 18 (doc. 32-1).
It is unclear whether plaintiff was actively protesting that day, as opposed to being present in the vicinity of a protest. Although the Complaint alleges that, on June 1, 2020, plaintiff was participating in a peaceful “Black Lives Matter” protest near the corner of S.W. 5th Avenue and S.W. Main Street when she was arrested, her deposition indicates that she went downtown that day to see “what the office building of [her] new job looked like.” Compare Compl. ¶¶ 7-17 (doc. 1-1), with Simon Decl. Ex. 4, at 3 (doc. 25-3). After parking her car at the SmartPark on S.W. 4th Avenue and Yamhill Street, plaintiff began walking towards the office building and “saw people [she] knew [and] stayed there with those people.” Simon Decl. Ex. 4, at 6, 8-9 (doc. 25-3); Pletch Decl. Ex. 2, at 24-25 (doc. 32-1). Plaintiff spent some time chatting with a friend, Danialle, and then began walking towards S.W. 5th Avenue and Main Street. Simon Decl. Ex. 4, at 7, 9-10 (doc. 25-3). In particular, plaintiff crossed the street away from Chapman and Lownsdale Squares (where she had been immediately prior) and ducked under the police tape because she: (1) wanted to “avoid any sort of interaction” with the police; (2) someone told her “they saw what looked like [her] mother”; and (3) it was the most direct route back to her car. Id. at 15, 17.
Browning then approached plaintiff and the following exchange occurred:
Plaintiff (yelling to friends): Man get your ass over here!
Browning (in PPB uniform, badge on display): Hey, get back, or you're going to go in handcuffs. Get on the other side of the street.
Plaintiff: I can't get my mom?
Browning: Get on the other side of the street or you're going to go in handcuffs. Are you going to get on the other side of the street?
Plaintiff: You want me to get?
(Officer Browning grabbing and/or detaining plaintiff.)
Plaintiff: Hold on!
Browning: Put your hands behind your back.
Plaintiff: I'm going!
Browning (more emphatic): Put your hands behind your back. Put your hands behind your back!Simon Decl. Ex. 5 (doc. 25-4). Plaintiff was arrested under Or. Rev. Stat. § 162.247. Browning Decl. ¶ 10 (doc. 24); Browning Decl. Ex. 1, at 2 (doc. 24-1). Less than fifteen seconds elapsed between the time plaintiff first ducked under the tape and her arrest. Simon Decl. Ex. 5 (doc. 25-4).
Defendants allude to potentially relevant events that occurred prior to the start of the video evidence. See Defs.' Mot. Summ. J. 6 (doc. 23) (“[s]ome of [the interaction between plaintiff and Browning] was captured on a video taken by Ms. Mendoza, beginning precisely at the moment Sergeant Browning went hands-on to arrest plaintiff. Ms. Mendoza has admitted that she took additional video of this incident prior to then, but that the video was somehow lost from her phone [so there is] no video of anything plaintiff was doing in the moments before her arrest”) (internal citations omitted). However, the video before the Court shows plaintiff walking down S.W. 5th Avenue while approaching Main Street, and the declarations of Browning and Sahli (as well as Browning's contemporaneous police report) do not evince any cognizance of plaintiff's actions prior to her crossing onto Main Street and ducking under the police tape.
At the time of the underlying events, this statute made it unlawful to “[r]efuse . . . to obey a lawful order by the peace officer” if “the person [knows] that another person is a peace officer.” State v. Kreis, 365 Or. 659, 664, 451 P.3d 954 (2019). “In 2021, the legislature amended ORS 162.247.” State v. Donato, 324 Or.App. 321, 324 n.1, 525 P.3d 493 (2023). Significantly, under the current version of Or. Rev. Stat. § 162.247 (on which plaintiff exclusively relies), “refusing to obey a lawful order no longer constitutes a crime . . . and shall not be the basis for an arrest.” Index Newspapers LLC v. Portland, 2023 WL 2666538, *3 (D. Or. Mar. 28, 2023) (citation and internal quotations and emphasis omitted). That is, the current version of Or. Rev. Stat. § 162.247 makes it unlawful to “intentionally or knowingly act in a manner that prevents, or attempts to prevent, the peace officer . . . from performing the lawful duties of the officer with regards to another person or a criminal investigation.” Although neither party addresses this issue, the 2021 amendment “is not relevant” to events that occurred prior thereto, such that the Court must rely on the “version of the statute [that] was current at the time of the incident.” Donato, 324 Or.App. at 324 n.1.
After she was taken into custody, plaintiff was Mirandized, transported to the Justice Center, and interviewed in a conference room by PPB Detectives David McCormick and Angela Hollan. McCormick Decl. ¶ 3 (doc. 26); Pletch Decl. Ex. 2, at 71-73 (doc. 32-1). She was not handcuffed at the time of the interview and was provided a fresh cup of water. McCormick Decl. ¶ 3 (doc. 26). Plaintiff told the detectives that “she wasn't involved in anything other than trying to get medication to her mother.” McCormick Decl. Ex. 7, at 1 (doc. 26-1). She also acknowledged hearing “Browning tell her to get behind the tape twice, but she felt like a deer in the headlights and didn't move fast enough before Officer Browning handcuffed her.” Id.; McCormick Decl. ¶ 5 (doc. 26). At one point plaintiff mentioned an attorney; after McCormick and Hollan “confirmed” that plaintiff did, indeed, want to speak with an attorney, the interview ended. McCormick Decl. ¶ 8 (doc. 26); Pletch Decl. Ex. 2, at 78 (doc. 32-1). Plaintiff was issued a citation and allowed to leave the Justice Center. McCormick Decl. ¶ 9 (doc. 26). She did not mention “being in pain or that she had been injured in any way.” Id. at ¶ 7.
On September 3, 2021, plaintiff initiated this lawsuit in Multnomah County Circuit Court alleging the following 42 U.S.C. § 1983 claims against the individual Doe defendants: (1) unlawful arrest in deprivation of her Fourth Amendment rights; (2) excessive force in deprivation of her Fourth Amendment rights; and (3) disparate treatment based on race or ethnic background in deprivation of her Fourteenth Amendment Equal Protection rights. Compl. ¶¶ 37-50 (doc. 1-1). Plaintiff additionally raised claims under Oregon common law for assault, battery, and false imprisonment. Id. at ¶¶ 21-36.
Plaintiff also alleged a municipal liability claim against the City, which was dismissed pursuant to defendants' Rule 12(b)(6) motion.
On April 28, 2023, defendants filed the present summary judgment motion. Briefing was completed in regard to that motion on June 27, 2023.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. 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. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
This dispute centers on whether defendants' arrest violated plaintiff's state and/or federal rights. In regard to 42 U.S.C. § 1983, defendants argue plaintiff's claims “fail because [she] has failed to amend her complaint to identify the individually named officers within the statute of limitations and serve the individually named officers.” Defs.' Mot. Summ. J. 19 (doc. 23). Alternatively, defendants assert that probable cause existed for plaintiff's arrest and, in any event, the rights at issue were not clearly established such that qualified immunity attaches. Similarly, defendants rely on probable cause to defeat plaintiff's state law claims, arguing “the force the officers used to effect plaintiff's arrest was expressly justified as a matter of law because it was the amount of force no more than necessary to accomplish the legitimate purpose of fulfilling the officers' duties.” Id. at 17.
Plaintiff opposes defendants' motion on the basis that probable cause was lacking, and, by extension, any seizure or use of force was unreasonable. In addition, plaintiff contends “[t]here is at minimum an issue of material fact regarding the matter of Equal Protection” because she has put forth evidence intimating that she was treated differently than other similarly situated individuals who crossed over into the taped-off area as “the sole woman of color.” Pl.'s Resp. to Mot. Summ. J. 7 (doc. 32).
I. Federal Claims
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct complained of deprived him or her of an existing federal constitutional or statutory right; and (2) the conduct was committed by a state actor or a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). It is undisputed that the Doe defendants are PPB officers who qualify as state actors for the purposes of 42 U.S.C. § 1983.
Qualified immunity shields government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To determine whether a government actor is entitled to qualified immunity, the court evaluates, in no particular order, whether: (1) the alleged misconduct violated a right; and (2) that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Whether Plaintiff's Request to Replace the Doe Defendants is Timely
It is undisputed that plaintiff's cause of action arose on June 1, 2020, and that her complaint was filed prior to June 1, 2022. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2004) (42 U.S.C. § 1983 claims are subject to a two year statute of limitations in Oregon under Or. Rev. Stat. § 12.110); see also Clavette v. Sweeney, 132 F.Supp.2d 864, 875 (D. Or. 2001) (claims accrue at the time of the injury, irrespective of the fact that the plaintiff may not know the arresting officer's “identity until a later point in time,” where the plaintiff “was aware of his alleged injuries when they occurred [and] knew Portland police officers allegedly inflicted the injuries”). Further, it is undisputed that the statutory limitations period has lapsed, such that the proposed amendments are timely only if they relate back to the original pleading. Where, as here, “the limitations period derives from state law, [the court must] consider both federal and state law and employ whichever affords the ‘more permissive' relation back standard.” Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1199-1201 (9th Cir. 2014) (citation omitted).
Before addressing the particulars of those standards, the Court notes that the entirety of plaintiff's opposition states:
Plaintiff concurs with and adopts the legal standards raised by Defendant on this matter.
In good faith efforts to resolve this claim, as they were initially presented to Defendant in Multnomah County Circuit Court where claims must be made against the entity rather than the individual police-tortfeasor - see ORS 30.275 et. seq. Furthermore, given Defendant did not make the police report known or file any prosecution in this matter, Plaintiff only became aware of the identity of her
arresting officers in October 2021, which is within the state Statute of Limitations applicable to this matter.
As such, Plaintiff respectfully requests an opportunity to amend the specific officers into her complaint.Pl.'s Resp. to Mot. Summ. J. 8 (doc. 32) (internal citation omitted).
Although plaintiff is correct that, “under the OTCA, the state is substituted as the only proper defendant” in a tort action against officers, employees, or agents of a public body acting within the scope of their employment, she does not contend that filing claims subject to the Oregon Tort Claims Act or initiating an action in state court excuses the relation back or Doe pleading requirements in regard to federal claims litigated in federal court. Ctr. for Legal Studs., Inc. v. Lindley, 64 F.Supp.2d 970, 974-75 (D. Or. 1999), aff'd, 1 Fed.Appx. 662 (9th Cir. 2001).
Plaintiff's response is deficient in three respects. First, plaintiff does not meaningfully respond to or otherwise oppose the salient aspects of defendants' motion. See Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted).
Second, plaintiff has not filed a separate motion seeking amendment or provided a copy of the proposed pleadings as required by the Local Rules. See LR 7-1(b) (“[e]very motion must . . . be stated in a separate section under the heading ‘Motion' [and] may not be combined with any response, reply, or other pleading”); LR 15-1 (any motion to amend “must describe the proposed changes” and include as an exhibit “[a] copy of the proposed amended [that shows] how the amended pleading differs from the operative or superseded pleading”); see also Wasco Prods., Inc., v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.), cert. denied, 549 U.S. 817 (2006) (“summary judgment is not a procedural second chance to flesh out inadequate pleadings”) (citation and internal quotations omitted).
Third, although the relevant deadlines in the Court's Scheduling Order have lapsed, plaintiff's brief is wholly silent as to this issue. Where amendment is sought after the deadline expired, the moving party “must first show good cause for amendment under Rule 16(b), then, if good cause be shown, the party must demonstrate that amendment was proper under Rule 15(a).” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) (citation and internal quotations omitted).
Pursuant to Rule 16, a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609 (citations and internal quotations omitted). A corresponding Local Rule further provides: “objections to any court-imposed deadline must be raised by motion and must: (1) Show good cause why the deadlines should be modified[;] (2) Show effective prior use of time; (3) Recommend a new date for the deadline in question[; and] (4) Show the impact of the proposed extension upon other existing deadlines, settings, or schedules.” LR 16-3(a). Under Rule 15(a), Error! Main Document Only.leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). In determining whether a motion to amend should be granted under Rule 15(a), the court generally considers four factors: undue delay, bad faith, futility, and prejudice to the opposing party. Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997) (citation omitted); see also Johnson, 975 F.2d at 609 (a “court's evaluation of good cause is not coextensive with an inquiry into the propriety of the amendment under . . . Rule 15”) (citation and internal quotations omitted).
Here, plaintiff concedes she has known the identities of the Doe defendants since October 2021 (i.e., within the limitations period but after her claims were removed to federal court). Yet she did not seek amendment until June 2023 - and then only in response to defendants' summary judgment motion. Plaintiff fails to provide any reason for this nearly two year delay. See Johnson, 975 F.2d at 609 (“[c]arelessness is not compatible with a finding of diligence” and observing that the Ninth Circuit has routinely denied motions to amend filed after the scheduling order cut-off date solely on the basis of untimeliness) (collecting cases).
i. Federal Relation Back
To relate back under federal law:
(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice [within the time period prescribed in Fed.R.Civ.P. 4(m) such] that it will not be prejudiced in maintaining its defense; [and] (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it.Schiavone v. Fortune, 477 U.S. 21, 29 (1986); Fed.R.Civ.P. 15(c)(1). Plaintiff meets the first requirement, as the underlying conduct is the same. At issue is whether the proposed defendants received notice within 90 days of the commencement of this lawsuit and whether naming John/Jane Does in the complaint was a mistake.
The Court answers both questions in the negative. Plaintiff's brief does not address notice or the specific requirements of Fed.R.Civ.P. 15(c)(1). Stated differently, plaintiff neglected to provide any argument or evidence regarding the second or third requirement. See Manns v. Lincoln Cnty., 2018 WL 7078672, *3 (D. Or. Dec. 12, 2018), adopted by 2019 WL 267708 (D. Or. Jan. 17, 2019) (“it is Plaintiff's burden to show relation back” and the second requirement is unmet where “no actual evidence of notice [is offered]”) (citation and internal quotations omitted).
Moreover, the record before the Court demonstrates that plaintiff did not possess an erroneous belief regarding the true identities or roles of the Doe defendants. Rather, plaintiff had adequate knowledge from the outset of this litigation of the proposed defendants' participation in the alleged deprivation of her rights, as their specific actions are clearly alleged in the complaint but chose not to name them because she initiated this action in Multnomah County Circuit Court. See, e.g., Compl. ¶¶ 12-13, 15-16 (doc. 1-1).
Accordingly, because plaintiff could have named and served the additional defendants in the original complaint (or, at a minimum, prior to the expiration of the limitations period), no mistake transpired within the meaning of Fed.R.Civ.P. 15(c)(1). See Finicum v. United States, 2021 WL 3502462, *8-9 (D. Or. Aug. 5, 2021) (surveying relevant case law to conclude “[r]eplacing a ‘John Doe' defendant with the actual name of a defendant is not a ‘mistake' that allows relation back under Rule 15(c)(1)”) (citation and internal quotations omitted).
ii. State Relation Back
The Oregon rule governing relation back provides that:
[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, such party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment.Or. R. Civ. P. 23.
The Oregon standard is “analogous to the federal standard” in this context. Finicum, 2021 WL 3502462 at *9 (citation and internal quotations omitted). The proposed amendments thus fail under Oregon law for the same reasons they fail under federal law. Notably, a “lack, of knowledge regarding a defendant's identity is not a ‘mistake' for purposes of Or. R. Civ. P. 23.” Clavette, 132 F.Supp.2d at 876. Regardless, as addressed in section II(A), the record establishes that plaintiff did, in fact, have sufficient knowledge of the identities and roles of the additional defendants within the limitations period but simply failed to seek amendment or provide service.
B. Whether the Rights at Issue were Clearly Established
Even assuming plaintiff's proposed amendments were timely and procedurally appropriate, the Court nonetheless finds that summary judgment is warranted regarding her 42 U.S.C. § 1983 claims on the basis of qualified immunity. A right is clearly established if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741. The dispositive inquiry is whether the officers had “fair warning” that the detention was unlawful given the “particularized facts of the case.” Id. at 740 (citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”) (citation and internal quotations omitted).
It is undisputed that PPB dispatched Browning and Sahli to put up tape between S.W. 4th and 5th Avenues. Browning Decl. ¶ 2 (doc. 24); Sahli Decl. ¶ 2 (doc. 27). It is also undisputed that Browning and Sahli were allowing people to cross the tape only to access City buildings or their vehicles. Browning Decl. ¶ 12 (doc. 24); Sahli Decl. ¶ 13 (doc. 27). Finally, it is undisputed that plaintiff entered the taped-off area - to find her mom and/or because it provided the most direct route to her car which was parked a couple of blocks away - and did not comply with Browning's repeated orders to get back prior to being arrested and transported into custody in a routine and orderly fashion. Browning Decl. ¶¶ 8-10, 13, 15-16 (doc. 24); Simon Decl. Ex. 5 (doc. 25-4); Browning Decl. Ex. 1, at 3 (doc. 24-1); Sahli Decl. ¶¶ 8-12 (doc. 27).
Although plaintiff concludes that other people were walking through the taped-off area without police interference, such that there is a disputed issue of material fact concerning whether she was targeted because of her race, the actual evidence of record belies this point. Namely, plaintiff alleges that she was the only person of color in the area, but her deposition reflects that two of her friends present at the time of her arrest are “black.” Pletch Decl. Ex. 2, at 64 (doc. 32-1). Two people who knew plaintiff prior to June 1, 2020, and were present that day testified there were people - “three or four” - approaching from the “the other side” of Main Street (where Sahli was stationed), but no one specifically recounted seeing pedestrians approaching from the area where Browning was stationed and where plaintiff was arrested. Pletch Decl. Ex. 3, at 8 (doc. 32-1); Pletch Decl. Ex. 4, at 7, 23-24 (doc. 32-1). And, in any event, there is no evidence in the record before the Court concerning these other pedestrians (including their race and/or whether they had permission to enter the taped-off area).
In particular, the video evidence shows no other pedestrians in the taped-off area. It also shows that plaintiff was responding to Browning, who was addressing her directly in a conversational tone, in uniform, and standing only a few feet away. Simon Decl. Ex. 5 (doc. 25-4). Plaintiff does not meaningfully address this evidence or attempt to contest it, and the entirety of her argument surrounding qualified immunity specifies: “As discussed in §§ (a)-(b) above, the law is quite clearly established in this jurisdiction that an arrest without probable cause, and/or force without probable cause, is illegal.” Pl.'s Resp. to Mot. Summ. J. 8 (doc. 32).
Plaintiff's incorporated arguments surrounding probable cause are as follows: (1) “[t]here is at minimum an issue of material fact of whether Plaintiff knew Defendant was a peace officer, or what his orders she allegedly prevented even were”; (2) “[t]here is no evidence that Plaintiff's conduct prevented or attempted to prevent Officer Browning ‘from performing the lawful duties of the office with regards to another person or a criminal investigation” and (3) “[t]here is no evidence Plaintiff acted whatsoever in any way that would not constitute passive resistance pursuant to ORS 162.147.” Pl.'s Resp. to Mot. Summ. J. 4-7 (doc. 32) (internal quotations omitted). Yet, as addressed herein, the video and other documentary evidence evinces no visibility issues on the day in question and Browning was clearly identified as a PPB officer, and plaintiff's remaining arguments are based on a version of Or. Rev. Stat. § 162.247 that was not in existence on June 1, 2020. It is also worth noting that, while plaintiff is generally correct that non-compliance does not constitute active resistance, her mental state and/or the existence of a valid defense are “simply not relevant when determining whether [the PPB officer] had probable cause to arrest” in the context of a civil case. Hicks v. Portland, 2006 WL 3311552, *7 (D. Or. Sept. 13), adopted by 2006 WL 3311552 (D. Or. Nov. 8, 2006); see also Garcia v. Does, 779 F.3d 84, 96 (2d Cir. 2015) (“[w]hether or not a suspect ultimately turns out to have a defense, or even whether a reasonable officer might have some idea that such a defense could exist, is not the question”).
As such, plaintiff once again fails to address the salient aspects of defendants' motion. That is, “[t]he doctrine of qualified immunity does not require that probable cause to arrest exist.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir. 1991). And the Supreme Court has repeatedly instructed lower courts not to define clearly established law at a high level of generality. See, e.g., Mullenix, 577 U.S. at 12; White v. Pauly, 580 U.S. 73, 79 (2017); see also Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (“it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force [under Graham], deny qualified immunity, and then remit the case for a trial on the question of reasonableness”).
Although gaps and/or unexplained discrepancies in the record raise questions concerning whether plaintiff's arrest was based on probable cause - namely, Browning and Sahli's declarations are at odds with the video evidence and the lawfulness of the underlying orders has not been adequately briefed by either party - given the undisputed evidence of record, defendants are nonetheless entitled to qualified immunity given the totality of the circumstances.
Critically, plaintiff has not cited to any authority even arguably indicating that defendants were on fair notice that their actions violated a clearly established law, and the weight of relevant, persuasive authority is to the contrary. See Allen v. Bamford, 2017 WL 2293349, *4 (D. Or. May 25, 2017) (granting summary judgment in favor of police officers in regard to an allegedly wrongful arrest made under the prior version of Or. Rev. Stat. § 162.247, noting that qualified immunity protects an officer's “discretionary decisions [even if those decisions are not] the best decision or even a fair one”); Dist. of Columbia v. Wesby, 138 S.Ct. 577, 588-91 (2018) (reversing the lower court, explaining it erred by not “considering the facts as a whole [and instead taking] them one by one” and “dismiss[ing] outright any circumstances that were susceptible of innocent explanation,” and granting qualified immunity to the arresting officers where the plaintiffs never identified a single precedent - much less a controlling case or robust consensus of cases - finding a Fourth Amendment violation “under similar circumstances”) (citations and internal quotations omitted); see also Hicks, 2006 WL 3311552 at *6-12 (granting summary judgment in favor of police officer in regard to wrongful arrest and excessive force claims, explaining that whether plaintiff “underst[oo]d the police announcements ordering the protesters to stay out of the street” or “entered the street twice-as [the PPB Officer] claims-or once-as Plaintiff maintains” was immaterial because probable cause and qualified immunity turn on “the totality of the circumstances known to the officer at the time of the arrest”) (emphasis in original)
In sum, the Court cannot find that it would have been clear to an officer confronting an analogous situation that their actions were “plainly incompetent or [a knowing violation of] the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Defendants' motion should be granted as to plaintiff's 42 U.S.C. § 1983 claims.
II. State Law Claims
In addition to her federal claims, plaintiff asserts three state law claims for assault, battery, and false imprisonment. “A district court may sua sponte decide whether to continue exercising supplemental jurisdiction over a Plaintiff's state law claims.” Feezor v. Patterson, 896 F.Supp.2d 895, 904 (E.D. Cal. Oct. 5, 2012), aff'd, 596 Fed.Appx. 558 (9th Cir. 2015) (citations and internal quotations and brackets omitted). Where, as here, a district court dismisses “all claims over which it has original jurisdiction,” it may, in its discretion, “decline to exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c)(3); Lacey v. Maricopa Cnty., 693 F.3d 896, 940 (9th Cir. 2012).
This discretion “enables district courts to deal with cases involving pendent claims in the manner that best serves the principles of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988). Significantly, the Supreme Court has stated, and the Ninth Circuit has “often repeated, that in the usual case in which all federal-law claims are eliminated before trial, the balance of [these factors] will point toward declining to exercise jurisdiction over the remaining state-law claims.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (citation and internal quotations omitted).
The only argument defendants raise in regard to plaintiff's state law claims is the presence of probable cause and no trial date has been set (nor have full consents been obtained). Therefore, the substance of plaintiff's state law claims remain unresolved in light of open questions in the record before the Court surrounding probable cause. Regardless, “[t]hese factors are only slight as there are no great hurdles to either party from litigating this case in state court, where the litigants can pick up where this Court leaves off.” Erwine v. Churchill Cnty., 2022 WL 705961, *10 (D. Nev. Mar. 9, 2022), aff'd, 2023 WL 2387584 (9th Cir. Mar. 7, 2023).
As far as fairness to the litigants, plaintiff initiated this lawsuit in state court before defendants removed the action based on federal question jurisdiction. In any event, “[f]airness does not favor either way as the parties can reach a fair verdict in state court.” Id.
Finally, comity greatly favors remand as the remaining claims are brought under state law and alleged against the PPB and its employees. Thus, at this stage in the proceedings, issues of Oregon common law will necessarily predominate over any trial. And, given the length and circumstances of plaintiff's arrest and detainment, coupled with the fact that plaintiff has put forth no argument or evidence indicating that she sustained physical injuries as a result of defendants' actions, the remaining claims appear to be best suited to resolution in state court. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law”).
The Court should therefore decline to exercise pendent jurisdiction and plaintiff's state law claims should be remanded. See Tuggle v. City of Tulare, 2023 WL 4273900, *19 (E.D. Cal. June 29, 2023) (declining supplemental jurisdiction over the plaintiffs' state law claims where the § 1983 claims were resolved at summary judgment); Foxfield Villa Assocs., LLC v. Robben, 967 F.3d 1082, 1102-03 (10th Cir. 2020) (district court did not abuse its discretion in declining to exercise supplemental jurisdiction, even though “nearly four years ha[d] passed since [the plaintiffs] filed their relevant complaint” and the parties had “engaged in a great deal of discovery and filed many motions,” because “copious state law issues warranted a Kansas state court's consideration in the absence of the sole federal claim”); see also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-41 (2009) (“[w]hen a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction” but rather “on its discretionary choice not to hear the claims”).
RECOMMENDATION
For the reasons stated herein, defendants' Motion for Summary Judgment (doc. 23) should be granted as to plaintiff's federal claims and the remaining state law claims should be remanded to state court. Plaintiff's request for oral argument is denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 21st day of July, 2023.