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Voth v. Solice

Court of Appeals of Oregon

May 21, 2014

FRANK E. VOTH, Plaintiff-Appellant,
v.
OFFICER SOLICE, SUPERINTENDENT PERSSON, DR. MICHAEL PUERINI, JOHN KITZHABER, OREGON STATE POLICE, OREGON DEPARTMENT OF JUSTICE, Defendants-Respondents, and DWANE PERRY and JANE/JOHN DOE, Defendants

Submitted September 6, 2013.

Marion County Circuit Court. 12C17481. Albin W. Norblad, Judge.

Frank E. Voth filed the briefs, Pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Denise G. Fjordbeck, Attorney-in-Charge, filed the brief for respondents.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

OPINION

[263 Or.App. 185] PER CURIAM

Plaintiff brought this action for negligence, intentional infliction of emotional distress, and " unlawful imprisonment" against the Oregon Department of Justice, the Oregon State Police, the Governor, and officials at the Oregon State Correctional Institution. Plaintiff alleged that, while he was an inmate at that institution, he filed a sexual harassment complaint against a female correctional officer who had conducted patdowns of his genital area " in a sexual manner," and defendants failed to stop that harassment, failed to investigate his complaint, and retaliated against him for filing it. The trial court granted summary judgment to defendants, and plaintiff appeals.

We write to address plaintiff's argument that the trial court improperly granted

Page 633

summary judgment because " [p]ractices such as nonemergency bodily searches conducted by opposite-sex guards * * * have been held to be unconstitutional" under Article I, section 13, of the Oregon Constitution and Sterling v. Cupp, 290 Ore. 611, 625 P.2d 123 (1981).[1] Defendants respond that plaintiff's argument is not preserved because his complaint did not allege that defendants violated Article I, section 13, and he did not otherwise present that argument to the trial court.[2] We agree with defendants.

To preserve an argument for appellate review, a party must " provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error." State v. Wyatt, 331 Ore. 335, 343, 15 P.3d 22 (2000). In his complaint, plaintiff [263 Or.App. 186] did not allege that defendants violated Article I, section 13, in advancing his tort claims or an independent constitutional claim. And the summary judgment record shows that, in the trial court, plaintiff did not raise an Article I, section 13, argument as a reason to deny defendants' summary judgment motion. Instead, in their motion for summary judgment, defendants presented evidence challenging plaintiff's tort claims ( e.g., that the female officer named in the harassment complaint had never conducted a patdown of plaintiff and that prison officials had conducted a formal investigation and found no wrongdoing), and they argued that the complaint failed to state a claim under any of the three tort theories plaintiff relied upon. In response, plaintiff did not rely on Article I, section 13, or Sterling in an effort to rebut those arguments.

Because neither defendants nor the court had reason to address what effect, if any, plaintiff's Article I, section 13, argument had on whether summary judgment was proper, that argument is not preserved and we will not address it further. We reject without discussion plaintiff's remaining assignments of error and the arguments raised for the first time in his appellate reply brief. Accordingly, we affirm.

Affirmed.


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