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Ward v. Bolek

United States District Court, D. Oregon

February 27, 2014

ROBERT WARD, Plaintiff,
v.
CINDY BOLEK, et. al., Defendants.

Michelle R. Burrows, Portland, Oregon, Attorney for Plaintiff.

Karen O'Kasey and Mark Sherman, Hart Wagner LLP, Portland, OR, Attorneys for Defendants Bolek, Ehrich, Potter, Schrader, Ashenbrenner, Skinner, Zaugg, Rademacher, Goerling, Does #1-10 Hillsboro Police Department employees, and City of Hillsboro.

Christopher A. Gilmore, Senior Assistant County Counsel, Office of Washington County Counsel, OR, Attorneys for Defendants Washington County and Sergeant Spang.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Plaintiff Robert Ward ("Plaintiff" or "Ward") filed this lawsuit against numerous state actor defendants alleging several violations of 42 U.S.C. § 1983 and several violations of state law. Defendants move for summary judgment against all of Plaintiff's claims. Dkts. 74 & 80. In response, Plaintiff moves to dismiss: (1) all claims against the Washington County defendants; (2) all claims against Individual Defendants Ashenbrenner, Skinner, and Zaugg; and (3) his Fourth, Fifth, Sixth, Seventh, and Ninth Claims for relief. Dkt. 92. Plaintiff's motion is granted and those claims and defendants are hereby dismissed.

After Plaintiff's voluntarily dismissals, the remaining defendants are: Sergeant Ted Schrader ("Schrader"), Cindy Bolek ("Bolek"), Lieutenant Doug Ehrich ("Ehrich"), Sergeant Neal Potter ("Potter"), Lieutenant Mitch Rademacher ("Rademacher"), Lieutenant Richard Goerling ("Goerling") (collectively, the "Individual Defendants"), and the City of Hillsboro ("City"). Plaintiff's remaining claims are: (1) First Claim for Relief under 42 U.S.C. § 1983, asserting that the Individual Defendants violated Plaintiff's procedural due process rights; (2) Second Claim for Relief under 42 U.S.C. § 1983, asserting that the Individual Defendants violated Plaintiff's reputational rights protected by the Fourteenth Amendment; (3) Third Claim for Relief under 42 U.S.C. § 1983, asserting that the Individual Defendants violated Plaintiff's privacy rights protected by the First and Fourteenth Amendments; and (4) Eighth Claim for Relief under 42 U.S.C. § 1983, asserting that the City violated Plaintiff's procedural due process rights. For the reasons discussed below, summary judgment is granted against all of Plaintiff's remaining claims.

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).

BACKGROUND

Ward was an officer with the Hillsboro Police Department ("HPD") from approximately January 1990 through August 31, 2012. Deposition of Robert Ward ("Ward Depo.")[1] 10:10-15, 90:17-20, 140:3-5. On April 7, 2010, Ward responded to an incident at a pawn shop. On April 9, 2010, the pawn shop owner called the HPD and complained about Ward's conduct. Deposition of Lieutenant Rademacher ("Rademacher Depo.")[2] 18:20-19:22.

On April 18, 2010, Ward assisted Washington County Sheriff's Office ("WCSO") Sergeant Spang and Deputy Wheaton during a traffic stop and suspected driving while intoxicated violation. Ward's assistance was requested to provide translation services. Ward Depo. 154:2-16. During that traffic stop, Ward became uncomfortable with how the WCSO officers were handling the traffic stop, believing it to be unsafe and that the WCSO officers were speaking too quickly for proper translation. Id. 158:4-12, 159:12-60. Deputy Wheaton was a relatively new officer and Ward offered Wheaton advice on handling the field sobriety testing. Id. 161:11-18. As the stop continued, the officers had difficulty identifying the driver and the passenger, and the vehicle's occupants were nonresponsive when asked about drinking alcohol. Id. 172:11-178:11. After Ward witnessed the driver appear to slide something under the driver's seat before getting out of the vehicle, Ward searched the vehicle and found a number of empty and partially empty beer cans and two full beer cans. Id. 179:9-20. Ward "flicked" two of the empty or partially empty cans toward the passenger and asked if he had drunk them. Id. 179:21-180:16. The cans hit the vehicle, bounced, and one struck Sergeant Spang when he reached out his hand. Id.; Deposition of Sergeant Spang ("Spang Depo.") 111:13-23.[3]

Later that day, Sergeant Spang verbally reported the incident to Schrader at the HPD, complaining about Ward's conduct. Spang Depo. 33:15-25. Schrader reported the incident to Rademacher. Rademacher Depo. 15:24-16:12. Based on Rademacher's personal knowledge of two complaints against Ward close in time to one another, on April 18, 2010, Rademacher notified Ward that he was under investigation, was the subject of an internal affairs ("IA") investigation, and had been placed on paid administrative leave pending the outcome of the investigations of the two incidents. Rademacher Depo. 21:20-25, 23:8-17; Burrows Decl. Ex. 4. Dkt. 93-4.

In addition to HPD's investigation, the WCSO commenced a criminal investigation into Ward's conduct, and referred that investigation to the Washington County District Attorney's office. Burrows Decl. Ex. 9 at 2. The IA investigation by the HPD was then put on hold pending the criminal investigation. Id. In early June 2010, the Washington County District Attorney's office referred the investigation of Ward to the Oregon Department of Justice ("Oregon DOJ"). Id. Rachel Bridges, Assistant Attorney General at the Oregon DOJ, was assigned the case. Deposition of Rachel Bridges ("Bridges Depo.") 41:3-15.[4] Ms. Bridges believed there was enough probable cause to charge Ward, although she did not think it was a "winnable" case. Id. 21:4-18, 58:6-19.

On August 20, 2010, the HPD issued a more formal and detailed memorandum to Ward confirming that a formal IA investigation has been commenced and explaining the potential violations of rules, policies, and laws that were being investigated and the underlying facts and conduct being investigated relating to both the pawn shop and the traffic stop incidents. Burrows Decl. Ex. 6. As of this date, both HPD's IA investigation and the Oregon DOJ's criminal investigation were ongoing at the same time. Witness interviews were jointly conducted, but the Oregon DOJ did not have access to the IA-specific portions of the interviews. Bridges Depo. 46:20-47:6, 48:22-49:5.

On September 2, 2010, HPD was informed by the Oregon DOJ that its criminal investigation was complete, although a charging decision had not yet been made. Burrows Decl. Ex. 9 at 3. On September 8, 2010, Ward was notified that HPD wanted to interview him. Id. On September 13, 2010, Ward was interviewed by Ehrich and Potter. Id. With Ward during the interview was Hillsboro Police Officers' Association ("HPOA" or "Union") attorney Mark Makler and HPOA representative Stephen Beaver. Id.

In September 2010, Ms. Bridges issued Ward a citation for Assault in the Fourth Degree, Harassment, Attempted Harassment, and three counts of Official Misconduct. First Am. Compl. ¶ 51; Bridges Depo. 66:22-67:19. On October 5, 2010, Ward was arraigned on those charges in Washington County Circuit Court. Burrows Decl. Ex. 9 at 3. As part of the terms of his release, Ward was prohibited from possessing a firearm, except for hunting. First Am. Compl. ¶ 54. On October 11, 2010, HPD notified Ward that because the terms of his release prohibited him from possessing a firearm, Ward's status was changed from paid administrative leave to unpaid administrative leave, effective as of the date of his arraignment. Ward Depo. 9:16-23; Sherman Decl. Ex. C (Dkt. 103-3). The HPD then began using Ward's accrued leave to continue compensating him during his unpaid leave. Sherman Decl. Ex. C.

The Collective Bargaining Agreement ("CBA") between the City and the HPOA establishes an escalating four-step grievance procedure, with the first three steps involving City personnel of escalating authority and the fourth step being arbitration. CBA Art. 17. O'Kasey Decl. Ex. 3. Dkt. 83-3. The CBA allows the HPOA or the employee to submit written grievances. Id.

On October 20, 2010, the HPOA filed a grievance on behalf of Ward challenging Ward's placement on unpaid leave and forced use of his personal leave as violative of the CBA between the Union and the City and of longstanding policies, practice, and procedures. Id. The City responded to the grievance on October 28, 2010, finding that Ward's placement on unpaid leave did not violate the CBA or any policy, practice, or procedure. Id. Ex. D. Dkt. 103-4. On November 16, 2010, a meeting was held between the HPOA and HPD as required in Step Two of the grievance process, and on November 24, 2010, the City upheld the placement of Ward on unpaid leave in response to second-level review of the grievance. Id. Ex. E. Dkt. 103-5.

On November 4, 2010, the City sent Ward a letter with the subject line "Notice of intent to terminate your employment." Letter to Plaintiff dated November 4, 2010 (Burrows Decl. Ex. 1). Dkt. 93-1. This letter notified Ward that the City was "inclined" to terminate Ward's employment, but would hold a hearing at which Ward could provide input as to why his employment should not be terminated. A pre-disciplinary hearing (a " Loudermill[5] hearing") was held on December 13, 2010. Sherman Decl. Ex. A. Dkt. 103-1. Ward was represented at the Loudermill hearing by HPOA attorney Mr. Makler and HPOA representatives Mr. Beaver and Pat Hess. Id. ...


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