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McAulay v. County of Washington

United States District Court, D. Oregon

August 15, 2014



PAUL PAPAK, Magistarte Judge.

The question before the court is whether it is a violation of the Fourth or Fourteenth Amendment for two sheriff's deputies, in a non-emergency situation, to ignore a "no trespassing" sign and gain entry onto private property by walking around a locked gate for the purpose of serving a civil summons.

Plaintiffs Stephen McAulay ("Mr. McAulay") and Jane McAulay ("Ms. McAulay ") filed this action against defendants the County of Washington, Washington County Sheriff Pat Garrett ("Garrett"), and sheriff's deputies Mike Vargas ("Vargas") and Jordan Weston ("Weston") on July 30, 2013, in the Washington County Circuit Court of the State of Oregon. On September 12, 2013, defendants removed this action to this court. Plaintiffs amended their complaint on April 1, 2014. On May 30, 2014, defendants moved for summary judgment.

On May 23, 2012, deputies Vargas and Weston went to plaintiffs' property and served a civil summons on Mr. McAulay. By and through their amended complaint, plaintiffs allege the following based upon the manner in which Mr. McAulay was served with this summons: (i) defendants are liable under 42 U.S.C. § 1983 for violating plaintiffs' Fourth Amendment rights to be free from unreasonable searches and seizures and plaintiffs' Fourteenth Amendment substantive due process rights by acting pursuant to "[t]he policy, practice and/or customs of Washington County[, whereby] deputy sheriffs surreptitiously go onto the private property of its citizens without prior notice, permission or lawful bases to serve people with documents, " First Amended Complaint, #16, ¶ 45; (ii) defendants Vargas and Weston are liable under Oregon Revised Statute ("ORS") 164.245 for trespassing onto plaintiffs' property for the purpose of serving a civil summons on Mr. McAulay; (iii) defendants Vargas and Weston are liable under a theory of negligence per se for their unspecified negligent acts resulting from their intentional trespass onto plaintiffs' property and defendant Washington County is liable for the deputies' negligent actions under a theory of respondeat superior; (iv) defendants Vargas and Weston are liable for intentional infliction of emotional distress for viewing Ms. McAulay through the kitchen window while she was naked and defendants Washington County and Garrett are liable for "ratif[ying]" Vargas and Weston's actions by "fail[ing] to take any remedial or termination action against them" thereby "intend[ing] to cause Mrs. McAulay severe mental or emotional distress, " id., ¶ 33; and (v) defendants Washington County, Vargas, and Weston are liable for breaching "a special duty to the citizens of Oregon and more specifically Washington County residents... to uphold, protect and enforce the laws of Oregon, " id., ¶ 36, by trespassing onto plaintiffs' property and viewing Ms. McAulay through the kitchen window while she was naked with "intentional or reckless disregard for Plaintiff[']s feelings while in this responsible relationship, " id., ¶ 40. This court has original jurisdiction over plaintiffs' federal claims pursuant to 28 U.S.C. §§ 1331 and 1343 and has discretion to exercise supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.

Now before the court is defendants' motion (#18) for summary judgment, in which defendants argue that they are entitled to judgment on each of plaintiffs' claims as a matter of law. I have considered the motion and all of the pleadings and papers on file. For the reasons set forth below, I grant defendants' motion for summary judgment with regard to plaintiffs' constitutional claims. I decline to exercise supplemental jurisdiction over plaintiffs' remaining state law claims and sua sponte remand those claims to state court pursuant to 28 U.S.C. § 1367(c).


Summary judgment is appropriate "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). A party taking the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed.R.Civ.P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555 (1990); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).


Plaintiffs own a ten-acre parcel located in Gaston, Oregon, a rural area of Washington County, where they live with their young daughter. Defendant County of Washington is a political subdivision of the State of Oregon. The County operates and maintains a sheriff's department that serves the city of Gaston. Defendant Garrett was, at all material times, the Washington County Sheriff. His responsibilities included overseeing sheriff's office policy with regard to the use of deputy sheriffs as process servers. Defendants Vargas and Weston were, at all material times, Washington County sheriff's deputies and acting in that capacity to serve process on Mr. McAulay at his home in Gaston.

On May 23, 2012, Vargas was dispatched to the McAulays' home for the purpose of serving a summons on Mr. McAulay.[2] Because the McAulays' home was located in a rural area and Vargas had been advised that Mr. McAulay was not "cop friendly, " Vargas requested backup. Weston responded to Vargas's request and accompanied Vargas to the McAulays' home.

When the deputies arrived at the McAulays' property, they found the front gate locked, blocking road access to the property, and a no trespassing sign posted on the gate. The deputies could not see the McAulays' residence from the gate. Vargas radioed dispatch, requesting that dispatch phone the McAulays to inform them that the deputies were at the entrance to their property and ask Mr. McAulay to meet them there. Dispatch placed the phone call, but no one answered, so dispatch left a message. Vargas and Weston then elected to walk around the locked gate and down the driveway to the McAulays' home.[3]

The McAulays' home is located approximately 548 feet from the front gate, following the driveway. The driveway proceeds in a more or less straight line for approximately the first 243 feet, where it becomes a semi-circle leading first to a detached garage and immediately thereafter to the house. The garage and the house are separated by a small garden bed. From the driveway, there are two footpaths to the front door of the house. From the perspective of approaching the house from the driveway, the first path goes left, following the length and back of the garden bed, and reaches a porch directly in front of the front door. This path does not pass the kitchen window. The second path goes to the right, following the front of the garden bed and reaching the porch at the front corner of the house. Following the porch to the right leads quickly to the kitchen window. Following the porch to the left leads to the front door.

Vargas and Weston approached the house via the second path. When they made it to the porch at the front corner of the house, one of the deputies, though neither Mr. McAulay nor Ms. McAulay could identify who, walked to the right and peered into the kitchen window. Ms. McAulay, who had just come out of the shower, was standing naked in the kitchen while drying her hair. The deputy saw Ms. McAulay then walked back to the corner of the porch and proceeded toward the front door. Before the deputies reached the door, Mr. McAulay opened it and exited the house. Mr. McAulay confronted the deputies, telling them, "[i]f you're going to wear the uniform, you should get a book on the law." Mr. McAulay's interaction with ...

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