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Grooman v. Clackamas County

United States District Court, D. Oregon, Portland Division

November 13, 2014

CLACKAMAS COUNTY, a political subdivision of the State of Oregon; JOHN CHRISTENSEN, in his individual and official capacity; and JOSH HATTAN, in his individual and official capacity, Defendants.


ANCER L. HAGGERTY, District Judge.

Plaintiff Laurie Grooman brought this lawsuit against defendants Clackamas County, John Christensen, and Josh Hattan. Plaintiffs claims arise from plaintiff's alleged unlawful detention, arrest, and exclusion from Happy Valley Park by law enforcement on July 4, 2012. On May 29, 2014, defendants filed a Motion for Summary Judgment [37], arguing that plaintiff's claims fail as a matter of law. On October 2, 2014, this court heard oral argument on defendants' Motion. For the following reasons, defendants' Motion for Summary Judgment is granted in part and denied in part.


The claims in this case arise from the events of an Independence Day celebration in Happy Valley Park ("the park") in the City of Happy Valley, Oregon on July 4, 2012. Plaintiff was collecting signatures for a petition in the park before law enforcement excluded her from the park and arrested her for trespassing when she refused to leave. Law enforcement based plaintiff's exclusion on reports that plaintiff was unreasonably loud, disruptive, and harassing other patrons of the event. Plaintiffs and defendants' descriptions of the events that led to plaintiff's arrest differ significantly.

According to defendants, plaintiff's disruptive contact was first observed by Mike De La Rosa, owner of Metro Enforcement Special Services, which was hired to provide private security for the Fourth of July celebration. According to De La Rosa, he witnessed plaintiff harassing citizens in the park by yelling at them, intimidating them, causing a public disturbance, making an unreasonable amount of noise, impeding their movement as they attempted to avoid her, and making unwanted and offensive physical contact with them. De La Rosa Decl. ¶ 7. Specifically, De La Rosa observed plaintiff stand in the center of the sidewalk so that two families were forced to walk around her, and she grabbed the arm of one gentleman as he walked past. De La Rosa Dep. 56:2-23. De La Rosa was unable to hear what plaintiff said to the families as they passed her. De La Rosa Dep. 65:18-20. De La Rosa used his radio to alert law enforcement of what he had seen and provided a physical description of plaintiff. De La Rosa Decl, ¶ 13.

Michelle Amend, a Code Enforcement Officer for the City of Happy Valley, testified that she received several complaints that a woman, later identified as plaintiff, was harassing patrons by using profanity, "getting in their faces, " and acting aggressively. Amend Decl. ¶ 2. Amend used her radio to relay this information to the Clackamas County deputies in the park, Amend Decl. ¶ 3.

Markley Drake is the Council President for the City of Happy Valley. During the afternoon of the event, Drake was approached by Roseanne Cupp, a woman helping plaintiff collect signatures. Cupp began telling Drake about an interaction she had just had with Reserve Deputy Christine Burke, in which Burke threatened to arrest Cupp if she continued to collect signatures. As Cupp spoke with Drake, plaintiff aggressively approached Drake to discuss their right to petition in the park. Drake Dep. 20:1-12. During the conversation, plaintiff tapped Drake several times with her clipboard and used profanities. Drake Dep. 20:13-15; 23:10-13. Without knowing the facts underlying plaintiff's complaints, Drake walked to the command post to inform the staff that plaintiff wanted to speak with the police. Drake Dep. 20:23-25. The staff at the command post used the radio to relay the information to law enforcement. As Drake walked to the command post, he observed plaintiff confront a family. As they waived her away, she aggressively got in front of them again and again. Drake Dep. 21:7-17.

Sergeant John Christensen, Deputy Josh Rattan, and Reserve Deputy Christine Burke are employed by the Clackamas County Sheriffs Office, and they were in the park providing law enforcement services for the Independence Day event. Sergeant Christensen and Deputy Rattan each heard at least one radio broadcast concerning a woman that was making unreasonable noise, causing a disturbance, and harassing other patrons. Christensen Decl. ¶ 3; Rattan Decl. ¶ 3. The radio broadcasts included a physical description of the woman causing the disturbance. Deputy Rattan informed Reserve Deputy Burke of the reports and provided Burke with a description of plaintiff. Burke Dep. 25:15-20.

Burke was the first law enforcement officer to locate plaintiff, but, as a reserve deputy, Burke chose not to approach plaintiff without another officer present. Burke Dep. 27:20-28:3. As Burke observed plaintiff, she described plaintiff as "charging me like an angry rhino, walking fast, swinging her arms, screaming, Arrest me, arrest me.'" Burke Dep. 24:8-10. Burke immediately called for backup on her radio. Burke Dep. 28:21-22. Burke testified in her deposition that after initially stopping, plaintiff charged her a second time. Burke Dep. 29:11-13. Burke told her to stop and radioed for assistance a second time. Burke Dep. 30:1-24.

Sergeant Christensen and Deputy Hattan responded to the scene. Hattan began speaking to plaintiff, who was yelling and causing a disturbance that attracted a crowd of approximately thirty people. Hattan Decl. 38:12-22. Steve Campbell, the Director of Community Services for the City, tried to convince plaintiff to calm down or he would be forced to exclude her from the park. Campbell Dep. 17:3-6. Plaintiff continued to yell profanities. Campbell Dep. 18:25-19:4.

Christensen and Hattan then ordered plaintiff to leave the park. When plaintiff refused to leave, she was arrested for Criminal Trespass II, pursuant to Oregon Revised Statute (ORS) 164.245. Plaintiff was subjected to a search incident to arrest, including a pat-down and pocket search. Christensen Decl. ¶ 21. Plaintiff was jailed for more than two hours.

Plaintiffs summary of the facts differs significantly from those stated above. Plaintiff contends that she was not causing any disturbance whatsoever. According to plaintiff, she was efficiently collecting signatures before learning from Roseanne Cupp that Reserve Deputy Burke threatened to arrest Cupp if she continued to collect signatures. Grooman Dep. 39:16-19. Cupp and Grooman approached Councilman Drake and had a two-minute conversation about the manner in which Reserve Deputy Burke had treated Cupp. Plaintiff agrees that Drake responded to the conversation by walking to the command post to relay that plaintiff wished to speak with law enforcement. Plaintiff notes that Drake did not consider his report a complaint against plaintiff. Drake Dep. 28;25-29:3.

According to plaintiff, it was Reserve Deputy Burke that approached her much later in the afternoon. Grooman Dep. 90:8-12. Plaintiff responded to Burke by saying something benign and then turning away. Grooman Dep. 90:8-25. Then, Burke said, "If you do that again, I'm going to Tase you." Grooman. Dep. 90:23-24. Burke called for backup. When the other officers arrived, plaintiff was tapped on the shoulder by a male officer and advised that she was being detained for criminal trespassing. Grooman Dep. 99:8-13. When plaintiff declared that she had the right to free speech, the officer responded, "You have the right to shush up." Grooman Dep. 100:10-14. Plaintiff attempted to call her attorney, but she was prevented from doing so. Grooman Dep. 98:2-3. After plaintiff was placed in handcuffs, one of the officers threatened to "face plant" her because they dropped her pen and she requested that they pick it up. Grooman Dep. 91:15-25. Plaintiff denies that she was being loud, using profanity, or harassing people. Grooman Dep. 100:24-25; 101:1-2; 107:12-108:3.

After she was arrested, plaintiff was provided a written exclusion from the park. The City of Happy. Valley has an ordinance entitled Exclusionary Policy, which sets out criteria for exclusion from Happy Valley parks. Happy Valley Municipal Code § 9.04.010. The form that plaintiff received excluded her from Happy Valley Park from July 4, 2012 through July 5, 2013.[1] Christensen Decl. Ex. 103. The form explains the appeal process to challenge the validity of the exclusion. Christensen Decl. Ex 103. Plaintiff never appealed the exclusion. Grooman Dep. 130:20-25.

Based on these facts, on February 27, 2014, plaintiff filed a First Amended Complaint against Clackamas County, John Christensen, and Josh Hattan.[2] Count I of the First Amended Complaint alleges that defendants violated plaintiff's rights to freedom of speech and expression guaranteed by the First Amendment. Count II alleges that defendants denied plaintiff's right to equal protection of the laws in violation of the Fourteenth Amendment. Additionally, plaintiff alleges in Count IV and Count V that defendants violated her substantive due process rights and procedural due process rights, which are guaranteed by the Fourteenth Amendment.[3] For these violations, plaintiff requests economic and non-economic damages, as well as attorney fees. On May 29, 2014, defendants filed a Motion for Summary Judgement [37], arguing that plaintiff's claims must fail as a matter of Jaw.


A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bahn v. NME Hasps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). The moving party carries the initial burden of proof and meets this burden by identifying portions of the record on file that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the non-moving party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id.

The court must view the evidence in the light most favorable to the non-moving party. Fairbank Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (citations omitted). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. MetroPCS, Inc. v. City & County of S.F., 400 F.3d 715, 720 (9th Cir. 2005) (citation omitted), Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981) (citing Fed.R.Civ.P. 56(c)).

Deference to the non-moving party has limits. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The "mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (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 omitted).


In support of their Motion for Summary Judgment, defendants set forth several arguments concerning the merit of plaintiff's claims: (A) plaintiff failed to state a claim upon which relief can be granted as to defendant Clackamas County; (B) individual defendants are protected by qualified immunity; (C) plaintiff's First Amendment claim fails as a matter of law; (D) plaintiff's Fourteenth Amendment equal protection claim fails as a matter of law; (E) plaintiff's substantive due process claim fails as a matter of law; and (F) plaintiff's procedural due process claim fails as a matter of law.

A. Plaintiff's Claims Against Clackamas County

Defendants argue that all of plaintiff's claims fail to state a claim upon which relief can be granted as to Clackamas County. Specifically, defendants argue that plaintiff failed to state a claim because she did not identify a specific policy, practice, or custom attributable to the County that violated her rights.

Both parties agree that plaintiff's claims are brought pursuant to 42 U.S.C. § 1983. The parties also agree that while local governments may be sued under § 1983, they cannot be held vicariously liable for their employees' constitutional violations. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Rather, § 1983 subjects a municipality to liability only "if it is alleged to have caused a constitutional tort through a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). Therefore, in order to state a valid § 1983 claim against a municipality, the ...

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