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Fruitts v. Union County

United States District Court, D. Oregon, Portland Division

January 21, 2015


For JR Fruitts, Marianne Zinzer, Plaintiffs: Michelle R. Burrows, LEAD ATTORNEY, Michelle R. Burrows, PC, Sherwood, OR.

For Union County, a political subdivision of the State of Oregon, Rocky Burgess, Joe Voleck, Steve Wilson, Rich Comstock, Doug Wright, Defendants: Mark C. Sherman, LEAD ATTORNEY, Steven A. Kraemer, Hart Wagner, LLP, Portland, OR.


Patricia Sullivan, United States Magistrate Judge.

Pending Motions

JR Fruitts (" Fruitts") and Marianne Zinzer (" Zinzer") (collectively " Fruitts") filed a Complaint against Union County and five[1] named employees of Union County Public Works Department (collectively " County"), Captain Hooks Towing (" Captain Hooks"), and Paul McKaig (" McKaig"), owner and operator of Captain Hooks, alleging claims under federal and state law. Fruitts's Complaint arises from a motor vehicle accident in which Fruitts hit and killed John Rysdam with a Ford Bronco owned by Zinzer while Rysdam was working as part of a County road crew. Specifically, Fruitts alleges a claim under 42 U.S.C. § 1983 against all five individual County employees for a violation of his substantive due process right under the Fourteenth Amendment. Fruitts also alleges three § 1983 claims against the County for failure to train, informal policy custom and practice, and acts of policymaker all in violation of the Fourteenth Amendment.[2] In addition, Fruitts and Zinzer allege a state law claim for negligence against the County; and Zinzer alleges a state law claim for conversion and a state statutory claim for violation of lien foreclosure against Captain Hooks, McKaig and the County. Fruitts and Zinzer seek monetary relief, including attorney fees and costs, and declaratory relief.

The County filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure seeking an entry of judgment against all claims alleged in Fruitts and Zinzer's Complaint. [3] Oral argument was heard on the motion and, for the reasons that follow, the County's Motion to Dismiss should be granted.


On February 28, 2012, Fruitts was driving a Ford Bronco, owned by Zinzer, to a mechanic for body repairs. (Compl. ¶ 14.) Fruitts was driving on Palmer Junction Road when he came upon a County road crew patching pot holes. (Compl. ¶ 14.) According to the Complaint, there was no posted speed limit and Fruitts was driving approximately 35-40 miles per hour. (Compl. ¶ 15.) Additionally, Fruitts alleges " the basic rule in Oregon permitted driving as fast as 55 miles per hour." (Compl. ¶ 15.)

Fruitts contends the road crew, comprised of four individuals including Burgess, had parked their County vehicle in the middle of the south bound lane. (Compl. ¶ 16.) Fruitts alleges the road crew: " failed to place signage prior to the stopped vehicle warning of a road crew, there was no traffic control device warning drivers, no allowance made to direct traffic around the road crew, no advanced warning whatsoever." (Compl. ¶ 16.) The County vehicle was pulled to a portion of the road that was blocked from view around a corner. (Compl. ¶ 16.) According to Fruitts, the vehicle was parked " in such a manner as to only afford oncoming traffic less than national standards recommend." (Compl. ¶ 16.)

Fruitts alleges he did not see any warning of a road crew nor were there any signs to indicate such work was underway. (Compl. ¶ 17.) Fruitts does concede he took his eyes off to glance at the radio and when he looked up he was coming quickly upon the rear end of the County truck. (Compl. ¶ 17.) Several members of the road crew were standing directly behind the truck and Fruitts braked hard. He tried to control the Bronco and was able mostly to miss the parked truck by sharply turning left, although the right rear panel of the Bronco scraped the County vehicle. (Compl. ¶ 17.) Fruitts asserts that, at the last minute, one of the road crew, Rysdam, " panicked and ran into the front of the Bronco." (Compl. ¶ 17.) Fruitts alleges he was traveling less than 35 miles per hour when he struck Rysdam, throwing Rysdam " several feet away." (Compl. ¶ 17.)

Fruitts immediately began to administer CPR to Rysdam and called 9-1-1. By the time the ambulance arrived Rysdam had died. (Compl. ¶ 18.) Fruitts cooperated with the Oregon State Police investigation but was eventually charged with manslaughter by the Union County District Attorney (" DA"), Tim Thompson. (Compl. ¶ 18.)

During the course of the criminal prosecution, the Oregon State Police seized the Bronco as evidence in the homicide prosecution. (Compl. ¶ 19.) The Bronco was towed by Captain Hooks and held in storage while the case proceeded. As a community service, Captain Hooks, by and through McKaig, does not charge law enforcement or the County for tows related to criminal investigations. (Compl. ¶ 19.)

At all times, the Bronco was the property of Zinzer, the registered owner. The Bronco was held in Captain Hook's secured lot until April 2012, when McKaig called the DA's office to obtain further instructions on the disposition of the Bronco. (Compl. ¶ 20.) At that point, McKaig sought payment for storage fees. DA Thompson advised McKaig the Bronco should be released to Zinzer and he advised Zinzer she could retrieve her Bronco. (Compl. ¶ 20.)

Under oath, McKaig's wife testified she telephoned Zinzer twice and told her the Bronco could be released to her custody if the tow bill was paid. (Compl. ¶ 21.) Fruitts insists there should be no tow bill as Captain Hooks did not charge the County for the towing. He further charges there are no records to confirmation McKaig called Zinzer, and Zinzer denies receiving such a call. (Compl. ¶ 21.)

McKaig's wife called a salvage company and learned they would pay her $500 to salvage the Bronco for scrap. (Compl. ¶ 22.) She admitted under oath she failed to send written notice to Zinzer and did not follow the requirements of Or. Rev. Stat. § § 819.210 et seq., and Or. Rev. Stat. § 87.192. (Compl. ¶ 22.) Fruitts alleges McKaig's wife, on behalf of Paul Mckaig and Captain Hooks, knew the Bronco was not abandoned, there was no tow bill, she had not called the registered owner, she had not sent written notice to the registered owner, and had no legal authority to scrap and destroy the Bronco. (Compl. ¶ 22.)

At some point, and before Fruitts' criminal defense could examine the Bronco, it was destroyed while in the custody of the State. (Compl. ¶ 23.) As a consequence, Fruitts was unable to conduct forensic examination of the Bronco to test the brakes and the vehicle's ability to stop and handle. (Compl. ¶ 23.) This was critical to assess the speed at which the Bronco was traveling at the time of the accident and impact. (Compl. ¶ 23.) Fruitts charges that the decision to destroy the Bronco was made without notice to Fruitts and Zinzer, and with the knowledge its destruction would be prejudicial to Fruitts' criminal defense. (Compl. ¶ 23.) Fruitts alleges the McKaigs were working in concert with the State in the destruction of the Bronco. (Compl. ¶ 23.)

The Bronco would have been tested by the Fruitts' defense and, purportedly, would have shown Burgess " was inaccurate or untruthful when he testified that from the crest of the hill, Fruitts 'stomped' on the gas." (Compl. ¶ 24.) According to Fruitts, access to the Bronco would have enabled him to establish the actual coefficient of friction to establish the speed at impact. (Compl. ¶ 24.) The Bronco, or photos of Zinzer's Bronco, could have been used to show to the jury at Fruitts' criminal trial the location of the stereo and its complicated operating system, which ran the speakers through the engine causing the engine noise to be exaggerated inside the cab of the Bronco and, apparently, to Burgess. (Compl. ¶ 24.)[4]

Fruitts alleges the County is bound by various state law, federal Occupational Safety and Health Administration (" OSHA") regulations, and its own local ordinances and regulations on accessing, repairing and working on operating roadways. (Compl. ¶ 29.) According to County road standards, Palmer Junction Road is a low volume road. (Compl. ¶ 29.) The volume of traffic is approximately 409 Average Daily Traffic (" ADT") vehicles. (Compl. ¶ 29.) The County standards for Temporary Traffic Control during pot hole patching operations do not require advance warning signs on low volume roadways. (Compl. ¶ 30.) According to the County's appeal of a civil fine issued to it by OSHA, the entire pothole patching process takes no more than ten minutes to fill the hole with asphalt and then the crew moves to the next section. (Compl. ¶ 30.) The crew size typically assigned to a pothole patching operation for the type of activity on February 28, 2012, is three to four employees. (Compl. ¶ 30.) Policy permits one person on the crew to watch for traffic while others perform the work. (Compl. ¶ 30.)

On the day of the incident, Burgess was the most senior member of the road crew and, in accordance with County standards, was responsible for defining the scope of work for the crew, and devising and incorporating safety standards, including the traffic warning for that day. (Compl. ¶ 31.) The road crew was patching approximately three to four miles of Lower Palmer Junction Road. Prior to the fatal accident, the crew had patched the northbound side of the road as far as the intersection with Middle Road and were in the process of patching the southbound lane as they traveled back to Elgin, Oregon. (Compl. ¶ 32.)

While some sections of Palmer Junction Road are straight and relatively level, the site distance for the portion of the road involved in the accident was considerably reduced due to road terrain. (Compl. ¶ 33.) The County road crew's flatbed truck had a vehicle-mounted strobe light that was in use at the time of the accident. (Compl. ¶ 33.) In addition, one crew member had access to a 'SLOW" and " STOP" paddleboard used previously in the day, but the paddleboard was not in use at the time of the accident. (Compl. ¶ 33.) There were no other traffic control measures in place at the time. (Compl. ¶ 33.)

The County was cited by Oregon OSHA for violation of OAR 437-002-2224(12), a " serious" violation because traffic controls did not conform to the Millennium Edition of the Federal Highway Administration (" FHWA") Manual for Uniform Traffic Control Devices (" MUTCD"). (Compl. ¶ 34.) The road crew did not have any advance warning device as required for work done in the travel way of a two lane, two-way road. (Compl. ¶ 34.)

According to Fruitts, the primary federal guidelines for road crew work is the MUTCD, which represents the national standard for all fifty states. (Compl. ¶ 44.) By the Oregon Temporary Traffic Control Handbook (" OTTCH"), Oregon adopted additional guidelines to supplement the MUTCD; the OTTCH applies to all short term work done by public entities. (Compl. ¶ 44.)

All of the members of the road crew were interviewed as part of the Oregon OSHA investigation and all admitted they did not typically use signs in conjunction with flaggers or other similar traffic control measures when doing cold-patching work. (Compl. ¶ 35.) They also admitted they use signs together with flaggers in conjunction with " larger" jobs. (Compl. ¶ 35.)

Steve Wilson, the Traffic Specialist for the County, normally decides traffic control measures to be used onsite. Wilson had never evaluated cold-patching work to determine what traffic control measures were required by Oregon's OSHA rules or other references. (Compl. ¶ 36.) Wilson admitted he had never accessed the OTTCH to determine what traffic control would be needed for cold-patching work even though he acknowledged that the OTTCH was the standard relied upon by the County. (Compl. ¶ 36.)

According to OSHA, the manner in which the County conducted cold patching at the time of the incident exposed multiple employees in multiple locations, and the hazardous exposures to vehicular traffic operating under the Basic Rule speed limit could reasonably be expected to cause death. (Compl. ¶ 37.)

There is no general process or procedure for assigning cold-patch repairs within the County. (Compl. ¶ 38.) It appears individuals are assigned work areas and get to the cold patching when they have time. (Compl. ¶ 38.) No overall work plan is required to be prepared or submitted for review by a supervisor, no training is conducted for developing safety procedures for road work requiring a moving work station, no standardized safety measures are imposed, and it appears no supervisors review the performance of road crews for safety or work improvement. (Compl. ¶ 38.) All decisions regarding the equipment needed, the safety measures imposed and the method of the work done by the road crew rests with the senior crew member, Burgess in this instance. (Compl. ¶ 38.) Fruitts alleges that on the day of the incident Burgess " failed to devise any plan for setting up traffic control or warnings and no plan to adjust for the siting of the vehicle." (Compl. ¶ 38.)

Valek is a road supervisor with the County. (Compl. ¶ 39.) During the OSHA investigation, Valek admitted the road crew was a " moving work site" and no warning or safety signage was required by the County. (Compl. ¶ 39.) He was unsure whether workers were wearing safety vests, or whether it was appropriate for the County vehicle to be parked in the middle of the road. (Compl. ¶ 39.) Valek was unfamiliar with the MUTCD. (Compl. ¶ 39.) He was unsure how this road crew and work assignment was made or managed, or how the " work zone" was determined. (Compl. ¶ 39.) Valek admitted that on a road crew such as the one at issue, no signage or additional warning to drivers was required. (Compl. ¶ 39.)

Wilson was also interviewed by the OSHA investigator. (Compl. ¶ 40.) He admitted there were signs at the shop posted for this particular cold-patch work, but it was not specifically assigned. (Compl. ¶ 40.) Wilson did not know what the Oregon Department of Transportation (" ODOT") or OSHA standards for safety and signage were for the moving job site used by the road crew in this incident. (Compl. ¶ 40.) He did not know what work was assigned to this crew or how they were to perform their duties. (Compl. ¶ 40.) Wilson admitted there was no assigned traffic control requirements for the moving cold-patch repair work. (Compl. ¶ 40.)

According to ODOT safety standards, which adopt the federal standards, on a moving work site such as cold patching the crew is required to get the work truck out of the lane of traffic in order to maintain a ten-foot lane so both lanes can pass at the same time. (Compl. ¶ 41.) If this is not possible the crew must close one of the lanes with flaggers. ((Compl. ¶ 41(citing OTTCH Section 5.2 and 5.3).)

The County does not require the road crews to pull off the road or close a lane if that is not possible. (Compl. ¶ 42.) Further, the County allows individuals to work alone on cold-patch work (Compl. ¶ 42.) According to Section 5.2 of the OTTCH, however, the work vehicle should be parked as far off the travel lane as practical. (Compl. ¶ 43.) If a ten-foot minimum travel lane can not be maintained or when opposing direction of traffic cannot safety pass use the appropriate lane closure diagrams which are attached to Section 5.2. (Compl. ¶ 43.) Further, all initial warning signs should be used if the sight distance is less than 750 feet and traffic volumes are over 400 ADT. (Compl. ¶ 43.) The site distance on this particular crash site was less than 750 feet. (Compl. ¶ 43.) The OTTCH also provides that a spotter may be used to warn of approaching traffic. (Compl. ¶ 43.) This is noted as being especially appropriate when sight distances are limited or speeds are high. (Compl. ¶ 43.)

The County workers were trained to be both partially on and partially off the road. (Compl. ¶ 45.) In that situation, i.e., the truck parked partially on and partially off the road, the OTTCH mandates a 500-foot warning sign and a 250-warning buffer marked with cones when the speed limit is 55 miles per hour. (Compl. ¶ 45.) In situations where the County vehicle must take up an entire lane, the OTTCH mandates two signs at 500 feet per sign spacing. (Compl. ¶ 45.) There is also an additional 250 foot buffer required. (Compl. ¶ 45.)

The accident reconstruction done by the Oregon State Police demonstrated Fruitts had 633 feet from the top of a hill to the County vehicle and, because of the low visibility, had no warning to slow down and approximately eight seconds to react to the road crew. (Compl. ¶ 45.) According to Fruitts, the mandatory distance warning for the site on the date of this incident was 1750 feet. (Compl. ¶ 45.) Fruitts alleges that if the County had followed the minimum legally required set up, the first sign would be 1000 feet from the buffer zone, the second sign would be 500 feet from the buffer zone, and then the buffer zone would be set up with cones of 250 feet apart. (Compl. ¶ 45.)

In testimony at a Department of Motor Vehicle hearing, [5] Comstock testified the County crews are required, by internal policy, to pull a working vehicle completely off the road. (Compl. ¶ 46.) Road crews are further required to get out of the roadway when a car approaches the work site. (Compl. ¶ 45.) In this accident, the truck was in the middle of the road and had limited site distance. (Compl. ¶ 46.) The crew members claim there was no room to get out of the road, but immediately following the accident the County truck was pulled completely off the road. (Compl. ¶ 46.) None of the crew members got out of the road and Burgess failed to warn anyone of the approaching Bronco even though he heard it several hundred feet away and waited to see who was driving. (Compl. ¶ 46.)

Fruitts alleges that " [a]s a result of the knowing and wilful violations of existing legal standards" he did not have warning of the location of a hazardous and dangerous work site. (Compl. ¶ 47.) In addition, Fruitts claims he " did not have the time to respond to the danger and . . . with braking and pulling sharply to the left he put himself in danger to avoid the crash." (Compl. ¶ 47.) Fruitts concludes that " [a]s a result of the actions and inactions by . . . defendants one man was killed and [he] crashed his vehicle into the ditch." (Compl. ¶ 47.) As a result, according to Fruitts, his substantive due process rights under the Fourteenth Amendment were violated.

Legal Standard

A well-pleaded complaint requires only " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A federal claimant is not required to detail all factual allegations; however, the complaint must provide " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell A. Corp. v. Twombly, 550 U.S. 544, 555 (2007). " Factual allegations must be enough to raise a right to relief above a speculative level." Id. While the court must assume all facts alleged in a complaint are true and view them in a light most favorable to the nonmoving party, it need not accept as true any legal conclusion set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, a plaintiff must set forth a plausible claim for relief, a possible claim for relief will not do. " In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).


I. Request for Judicial Notice

As a preliminary matter, the County requests the court take Judicial Notice, pursuant to Fed.R.Civ.P. 201, of the Amended Judgment dated February 6, 2014, in State of Oregon v. Harold A. Fruitts, Union County Circuit Court Case No. F19304. (Defs.' Mot. Dismiss Ex. 1.) Rule 201(b) provides: " The court may judicially notice a fact that is not subject to reasonable dispute. . . ." Fed.R.Evid. 201(b). In ruling on a motion to dismiss, a district court may consider " matters properly subject to judicial notice" in accordance with the Federal Rules of Evidence. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); Fed.R.Evid. 201(b).[6]

It is well established the district court may take judicial notice of judicial proceedings in other courts. Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). The Amended Judgment is a proper subject of judicial notice because the document contents are a matter of public record, it is publicly available, and its accuracy is not reasonably subject to debate. Fed.R.Evid. 201(b). Specifically, the document offered by the County is a judicial record, Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002), it relates to proceedings that involve the same parties reflected in those documents, Egan v. Teets, 251 F.2d 571, 577-79 (9th Cir. 1957), and that judicial development " affects [the court's] consideration of the various issues presented, " Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir. 1971).

Justice requires the court to consider the full events relating to Fruitts's conviction. In deciding Rule 12(b)(6) motions, courts are instructed " to read the allegations of a complaint in the context of the full documents the allegations purport to summarize and, where appropriate, to accept the documents, rather than a characterization of the documents, as the true account." Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014). Thus, the court grants the County's request for Judicial Notice of the Amended Judgment for the limited purpose of establishing that Fruitts was convicted of Criminally Negligent Homicide, a Class B felony.

II. Fruitts's 42 U.S.C. § 1983 Claims

Fruitts alleges four claims, pursuant to 42 U.S.C. § 1983, grounded in the actions taken, and not taken by the County, during the cold-patch work performed by the County road crew on February 28, 2012. The County moves for dismissal of each of these claims because they are barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). There is no dispute Fruitts was " charged with [m]anslaughter" and " convicted of a felony." (Compl. ¶ ¶ 18, 52.) In fact, Fruitts was convicted of Criminally Negligent Homicide, a Class B felony. (Defs.' Mot. Dismiss Ex. 1.) As such, the County contends Fruitts's criminal conviction arises from the same facts forming the basis of his section 1983 claims. According to the County, Fruitts's claims here are " fundamentally inconsistent with the alleged unlawful behavior for which section 1983 damages are sought" and thus must be dismissed. (Defs." Mot. Dismiss 4.)

Alternatively, the County argues Fruitts's federal claims fail as a matter of law because no clearly established constitutional right is implicated by the allegations of negligence, which forms the basis of the § 1983 claims. Quoting the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998), the County states the Fourteenth Amendment is not a " font of tort law to be superimposed upon whatever systems may already be administered by the States." (Defs.' Mot. Dismiss 4.) Below, the court considers both grounds -- the Heck doctrine and failure to state a claim -- for dismissal.

A. Heck Doctrine

In Heck, the United States Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus . . . . A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed . . . .

512 U.S. at 486-87. Simply put, under Heck " if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed." Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996). As the Supreme Court explained, the relevant question is whether success in a subsequent § 1983 suit would " necessarily imply" or " demonstrate" the invalidity of the earlier conviction or sentence. Heck, 512 U.S. at 487; see also Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2003) (as amended) (Heck bars suits " based on theories that 'necessarily imply the invalidity of [plaintiff's] convictions or sentences.'" ( quoting Heck, 512 U.S. at 487)).

Pursuant to Or. Rev. Stat. § 163.145, Fruitts was convicted of Criminally Negligent Homicide. Under Oregon law, a person commits the crime of criminally negligent homicide when, with criminal negligence, the person causes the death of another person. Or. Rev. Stat. § 163.145(1). Criminal negligence " means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists." Or. Rev. Stat. § 161.085(10). " The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Id.

To convict someone of criminally negligent homicide arising from a motor vehicle death in Oregon, the court instructs a jury that defendant had a duty to exercise reasonable control over his vehicle, to maintain a reasonable lookout and to drive at a reasonable speed, including a general explanation of what the duties of reasonable control, lookout and speed entail. State v. Stringer, 49 Or.App. 51, 55 (1980). In addition, however, the trial court must instruct the jury that, in order to find defendant guilty of criminally negligent homicide, it must find that his conduct constituted a gross deviation from the standard of reasonable care described. Id; see also Or. Rev. Stat. § 161.085(10). This portion of the instruction informs " the jury as to the degree of the breach of duty" requisite to a finding of criminal liability under § 163.145. Id. Based upon the judicially noticed Amended Judgment, the court concludes the prosecution in Fruitts's criminal case proved that his conduct constituted a " gross deviation from the standard of reasonable care" owed by motor vehicle operators while on public highways.

A criminally negligent homicide charge requires evidence that defendant should have been aware of a problem with his driving prior to the accident. State v. Brinager, 96 Or.App. 160, 162-63 (1989). In other words, there is a mental state requirement to the charge of criminally negligent homicide. See State v. Lewis, 352 Or. 626, 641-47 (2012) (evidence supported the finding that defendant acted with a mental state of criminal negligence). The Oregon Supreme Court has stated that a conviction for criminally negligent homicide involves " more than mere inattention." Id. at 643. By his own admission, Fruitts was " distracted by a malfunctioning radio" when he " turned a blind curve" on a rural road. (Pl.'s Resp. 9.)

Before reaching the merits of Fruitts's § 1983 claims, the court must decide whether success by Fruitts on his § 1983 claims would " necessarily imply" or " demonstrate" the invalidity of his conviction for criminally negligent homicide. If so, those claims are barred from the outset by the Heck doctrine. Practically speaking, the court must decide whether Fruitts's conviction for criminally negligent homicide is mutually exclusive of a finding that the County also bears some responsibility for Rysdam's death.

In deciding whether claims are barred by the Heck doctrine, an important criterion is whether a § 1983 plaintiff could prevail only by negating " an element of the offense of which he has been convicted." Id at 487 n.6; accord Cunningham, 312 F.3d at 1153-53. Here, to the extent Fruitts's claims depend upon the theory that he is not responsible for Rysdam's death, they are barred by the Heck doctrine. The jury's conviction for criminally negligent homicide required the jury to find he " cause[d] the death of another person." Or. Rev. Stat. § 163.145(1). Consequently, any civil claim that Fruitts was not the cause of Rysdam's death fails as a result of the jury's verdict.

The Complaint, however, asserts a broader theory; namely, the actions and failures to act by the County created a dangerous condition. In turn, the hazardous condition created by the County prevented Fruitts from receiving a proper warning of the road work, which would have allowed him time to respond safely to the hazardous condition. The difficulty with this theory is that it requires the court to set aside an element of the crime for which Fruitts was convicted; namely the jury's finding that Fruitts's actions on that day were a gross deviation from a reasonable standard of care. Fruitts does not argue here that the information regarding the alleged violations by the County of existing legal standards for the road work, the placement of warning signs, or the location of the parked County vehicle was unavailable to him at trial. Instead, he argues these factors were the cause of the crash, not his own " gross deviation" from the reasonable standard of care required in Oregon by a motorist on a public highway. All of Fruitts's arguments in this court regarding the County's alleged wrongful conduct were available to him at his criminal trial. Indeed, Fruitts states in his Response: " The factfinder below had access to the information about the road crew and did not use it nor consider it in his findings against Fruitts." (Pl.'s Resp. 9.) By virtue of his conviction, the jury must have determined the factors relied upon by Fruitts regarding the county's conduct were not the cause of the crash and Rysdam's death. Moreover, the jury must have determined the alleged dangerous condition created by the County did not nullify or mitigate Fruitts's actions on that day.

The jury decided Fruitts's gross deviation from a reasonable standard of conduct caused Rysdam's death, hence his conviction for criminally negligent homicide. Fruitts seeks a decision by the court here that the County's actions caused Rysdam's death, which is in direct conflict with the jury's verdict. (Compl. ¶ 47 (" As a result of the actions and inactions by the defendants one man was killed and Plaintiff crashed his vehicle into the ditch."); ¶ 61 (" The failure to act in an appropriate supervisory role of each defendant which caused this crash and the subsequent constitutional violations includes, without limitations, the following . . . ."); ¶ 87 (" Judgment against Union County for their negligence which caused the crash and resulting damages[.]") Even a lesser finding that the County played a role in Rysdam's death would necessarily imply Fruitts's conviction was in error as it would be mitigation for Fruitts's conduct and nullify the jury's finding of gross deviation.

Nor does Fruitts's reliance on the Supreme Court's decision in Skinner v. Switzer, 131 S.Ct. 1289 (2011), alter the court's findings in this case. Fruitts maintains the decision in Skinner " is the greatest defeat to Defendants' motions" to dismiss. (Pl.'s Resp. 6.) According to Fruitts the controlling law now " makes possible broader attacks on state post-conviction discovery and hearing procedure that defendants frequently argue are inadequate to vindicate their claims in state court." (Pl's. Resp. 6.) Without citation to any legal authority, Fruitts also insists " Skinner provides an indirect means of assailing a state court conviction that circumvents the labyrinth of rules that restrict federal habeas corpus petitions." (Pl.'s Resp. 6.)

In Skinner, a state prisoner convicted of capital murder and sentenced to death filed a § 1983 action for injunctive relief, seeking access to untested biological evidence for purposes of forensic DNA testing. 131 S.Ct. at 1293-95. Skinner named the district attorney as defendant and alleged defendant had custody of untested biological evidence. Id. The Supreme Court held Skinner's Complaint stated a cognizable claim for relief and he could proceed in a § 1983 action against defendant where he challenged the constitutionality of a state statute on its face or as applied in his case. Id. at 1298. The Court emphasized " a state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action." Id. The Supreme Court found Skinner properly invoked § 1983 because " [s]uccess in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction." Id. at 1298 (noting, " [w]hile [DNA] test results might prove exculpatory, that outcome is hardly inevitable"; further noting such " results might prove inconclusive or they might further incriminate Skinner").

Unlike plaintiff in Skinner, Fruitts is not seeking access to additional evidence through his § 1983 claims. Rather, he asks the court to review the conduct of the County and determine its role in the death of Rysdam. There is simply no authority under Skinner for such a review. Moreover, as the Supreme Court noted in Skinner, DNA testing " may yield exculpatory, incriminating, or inconclusive results." 131 S.Ct. At 1300. Fruitts does not seek access to evidence for which he is barred by state statute from acquiring. See id. at 1298 (" Skinner does not challenge adverse [state court] decisions themselves; instead he targets as unconstitutional the Texas statute they authoritatively construed . . . . [A] state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action.")

Fruitts attempts to avoid the prohibition of Heck by suggesting he too was a victim of the events on February 28, 2012. Despite his assertions that " [n]othing in this lawsuit will work to 'unconvict' Fruitts or to implicate his innocence[], " (Pl.'s Resp. 9.) the relief sought here by Fruitts clearly seeks to undermine his conviction. Indeed, Fruitts seeks a " [j]udgment against Union County for their negligence in causing the crash." (Compl. ¶ 87.) Moreover, Fruitts's Complaint is replete with both express, i.e., " caused" or " was the motivating and driving force behind that crash, " and implied, i.e., " would not have occurred" or " resulting in" or " as a result of, " allegations that the County's actions are to blame.

Even assuming Fruitts could avoid the Heck doctrine by pleading both he and the County were responsible for the accident and Rysdam's death and in so doing the County violated his constitutional rights, the Complaint is not pleaded as such. A careful examination of Fruitts's Complaint reveals an effort by Fruitts to shift responsibility for the mortal harm to Rysdam from himself to the County. Whether, ultimately, the County bears some responsibility for the fatal event on February 28, 2012, cannot be resolved via a § 1983 claim by Fruitts, whose jury conviction for the criminally negligent homicide of Rysdam still stands. Fruitts's § 1983 claims are barred by the Heck doctrine because they would necessarily imply the invalidity of his state conviction for criminally negligent homicide. Consequently, the County's request for dismissal of these four claims should be granted.

B. Merits of Fruitts's Section 1983 Claims

1. Individual Liability - Substantive Due Process

Alternatively, the court will consider the merits of Fruitts's § 1983 claims. Section 1983 provides a private right of action for " the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) a federal constitutional or statutory right was violated; and (2) the alleged violation was committed by a person acting under the color of state law. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001).

Fruitts alleges the individual County employees violated his substantive due process rights, protected by the Fourteenth Amendment, by their acts and omissions related to the road work under their control on February 28, 2010. According to Fruitts, the road work operation violated " numerous federal and state safety rules and mandates designed specifically to prevent the type of accident and injuries at issue." (Pl.'s Resp. 8.) As a result of these violations " Fruitts was injured and watched a man die which triggered significant post traumatic reaction in the war veteran." (Pl.'s Resp. 8.) In addition, Fruitts asserts " his truck was seized and damaged all because the road crew chose for several hours not to comply with the law." (Pl.'s Resp. 8.)

Before proceeding with the analysis of Fruitts's claims, it is important to identify the specific Fourteenth Amendment right(s) Fruitts claims were violated. This inquiry is relevant because, by its express terms, § 1983 provides redress only when state employees infringe those rights " secured by the Constitution and laws" of the United States. See, e.g., Paul v. Davis, 424 U.S. 693, 700-01 (1976). Thus, it is incumbent upon a plaintiff to satisfy this threshold requirement before the court considers whether the challenged conduct gives rise to § 1983 liability.

Although the specific right violated is not clearly enunciated in Fruitts's Complaint, he states in his Response Brief: " the right at issue and protected under the 14th Amendment substantive due process clause is the right to be free from unconstitutional taking of property and the unconstitutional conduct which creates a serious and intentional risk of death and loss of liberty." (Pl.'s Resp. 10.) Indeed, Fruitts suffered neither a loss of property, nor a loss of liberty, nor a loss of life as a result of the acts or omissions by the individual County employees. The truck was owned by Zinzer, [7] and it was Rysdam's life that was lost. Nor is there any authority for Fruitts's assertion he had a constitutional right to be free from an " intentional risk of death." There is simply no legal precedent for this court to find a constitutional right grounded in a risk, i.e., potential for harm. Finally, Fruitts cannot sustain a claim for loss of liberty as his imprisonment was a result of his conviction and, as explained above, such a challenge is barred by the Heck doctrine. Fruitts does not articulate any other liberty interest, such as personal security or a stigmatizing loss of reputation, that was violated. Rather, Fruitts simply claims he held a constitutional right " to be safe on the road and to be free from the illegal and unconscionable acts by the road crew in its intentional and lengthy misconduct that day." (Pl.'s Resp. 13.) Fruitts does not cite to any legal authority in support of his claim that he has a constitutional right to be " safe on the road" or " to be free of unconscionable acts by the road crew." Without a fundamental interest protected by the constitution, Fruitts's claim for substantive due process must fail as a matter of law. Nevertheless, for the purposes of the present motion only, [8] the court will construe Fruitts's claim as a liberty interest in personal security. Youngblood v. Romeo, 457 U.S. 307, 315 (1982) (" [T]he right to personal security constitutes a " historic liberty interest" protected substantively by the Due Process Clause.").

" Substantive due process protects individuals from arbitrary deprivation of their liberty by government." Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) ( citing Lewis, 523 U.S. at 845-49). To constitute a violation of substantive due process, the alleged deprivation must " shock the conscience and offend the community's sense of fair play and decency." Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (citation and internal quotation marks omitted). Where, as here, circumstances afford reasonable time for deliberation before acting, the court considers conduct to be " conscience-shocking" if it was taken with deliberate indifference toward a plaintiff's constitutional rights. Lewis, 523 U.S. 833 at 846.

Fruitts argues that the deliberate indifference standard applies to the facts of this case. As such, Fruitts must demonstrate the individuals " 'consciously disregard[ed]' a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 839 (1994) (citation omitted); accord Hammel v. Tri-County Metropolitan Transportation District of Oregon, 955 F.Supp.2d 1205, 1213 (D. Or. 2013). The individual road workers cannot be liable unless they were " aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [they] must also draw the inference." Farmer, 511 U.S. at 837; accord Hammel, 955 F.Supp.2d at 1213.

Fruitts charges the five supervisor defendants[9] " each bore individual responsibility for certain aspects of the safety and work of the work crew on the date in question." (Compl. ¶ 54.) In his Complaint, Fruitts details various failures and inactions by the individuals. (Compl. ¶ 61.) Fruitts alleges actions lacking due care on the part of the County workers. Indeed, the court notes the same allegations are restated in Fruitts's claim for state law negligence. (Compl. ¶ 75.) In addition, Fruitts alleges the lack of due care caused the accident that killed Rysdam and purportedly traumatized Fruitts. There are, however, no allegations in Fruitts's Complaint to show the actions by the road crew were something more than arbitrary, capricious, or in violation of state law. In fact, the sole citation arising from the accident is a violation of OAR 437-002-2224(12):

Traffic Control. You must require employees to set up appropriate traffic controls when they stop on or adjacent to a highway, street, or road in a way that creates a hazard and when traffic cannot adjust safely on its own. The controls must conform to the Millennium Edition of the (FHWA) Manual of Uniform Traffic Control Devices (MUTCD), December 2000.

Challenges to executive action on substantive due process grounds " raise a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law." Id. at 847 n. 8. " [T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Id. at 849 (citations omitted). Rather, " conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. at 849 (emphasis added).

The allegations in Fruitts's Complaint cannot satisfy this standard. Even assuming the allegations are true, at most Fruitts's action is one under state negligence law.[10] The alleged wrongdoing by Fruitts is as follows: there was a site distance less than 750 feet, traffic volume was over 400 ADT, the County vehicle was blocking the lane of traffic, there were no flaggers, and there were no spotters to warn of approaching traffic. Fruitts acknowledges, however, that County standards did not required advance warning signs on low volume roads such as the Palmer Junction Road, which was estimated at 409 ADT. (Compl. ¶ ¶ 29-30, 39.) Fruitts also explains that pertinent regulations, i.e., OTTCH 5.2 and 5.3, state: " The work vehicle should be parked as far off the travel lane as practical." (Compl. ¶ 43.) Otherwise, if a ten-foot travel lane cannot be maintained, appropriate land closure diagrams should be used. In addition, Fruitts points out that OTTCH requires only that a spotter may be used to warn of approaching traffic. (Compl. ¶ 43.) Finally, Fruitts alleges:

There is no general process or procedure for assigning cold patch repairs within Union county. It appears individuals are assigned work areas and get to the cold patching when they have time. No overall work plan is required to be prepared or submitted for review by a supervisor, no training is conducted for developing safety procedures for road work requiring a moving work station, no standardized safety measures are imposed and it appears no supervisors reviews the performance of work crews for safety or work improvement. All decisions regarding the equipment needed, the safety measures imposed and the method of the work done by the work crew rests with the senior crew member or Mr. Burgess. On the day of the incident Mr. Burgess failed to devise any plan for setting up traffic control or warnings and no plan to adjust for the siting of the vehicle.

(Compl. ¶ 38.) Fruitts charges the named individuals " admitted" certain procedures were not mandated by County standards. ( See, e.g., Compl. ¶ 39 (Valek " admitted that on a work crew such as the one at issue no signage or additional warning to drivers was required."); Compl. ¶ 40 (Wilson " admitted there was no assigned traffic control requirements for the moving cold patch repair work.").) It is unclear how such allegations support Fruitts's charge that the individual defendants were deliberately indifferent toward his substantive due process rights. Rather, this is an effort by Fruitts to elevate allegations of negligence to constitutional proportion.

Moreover, there are no allegations in the Complaint that the individual defendants were aware of a substantial risk of serious harm and consciously disregarded that risk. In fact, Fruitts repeatedly alleges the individual defendants were " unaware" or " failed to be aware" of relevant standards. ( See, e.g., Compl. ¶ 61G (" Defendant Valek was unaware of the safety steps taken by the work crew including whether they were wearing vests and suggested that safety vests were not required except on larger work projects.").) These alleged acts and omissions by the individual defendants are not of the nature and quality that give rise to a showing of deliberate indifference such that it shocks the conscience.

Nor is there any mention of a substantial risk created by these alleged failures. Compare Hammel, 955 F.Supp.2d at 1213 (plaintiffs allege risk was substantial based upon four enunciated factors). Next, Fruitts does not allege any of the individual defendants consciously disregarded a substantial risk. Compare id. at 1213-14 (plaintiffs allege defendant was aware of heavy foot traffic in the area, was aware a left-had turn was dangerous under the circumstances, and defendant made the turn anyway). Finally, there are no allegations the individual County employees were aware of the purported violations and actually drew the inference that the violations could cause harm. See Farmer, 511 U.S. at 837 (for a deliberate indifference claim, " the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference").

In sum, Fruitts challenges the conduct of the road crew on February 28, 2012, including, presumably, the actions of Rysdam who was assigned to the cold-patch work, as violating his constitutional rights. However, it is Fruitts's actions that killed Rysdam, as determined by the jury. Fruitts, while uninjured in the crash, seeks a constitutional recovery for, among other things, watching Rysdam die. Under the circumstances of this case, no constitutional claim accrued in favor of Fruitts. At best, Fruitts has put forth allegations of negligence. Even if the court accepts Fruitts's unsupported assertion that he has a constitutional " right to be free of conduct which creates a serious and intentional risk of death, " the allegations in Fruitts's Complaint fail to show deliberate indifference on the part of the individual County employees and, in turn, Fruitts cannot establish a arbitrary deprivation that shocks the conscience. Fruitts is unable to state a substantive due process claim against the individual County employees for the alleged safety lapses in County procedures and that claim should be dismissed.[11]

3. Municipal Liability - Substantive Due Process

Lastly, Fruitts alleges three § 1983 claims against the County for failure to train, informal policy custom and practice, and acts of policymaker all in violation of the Fourteenth Amendment. Fruitts asserts these claims pursuant to the Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658 (1978). In Monell, the Court held a municipality may be liable under § 1983 where " the action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690. Nevertheless, a " municipality cannot be held liable under § 1983 on a respondeat superior theory. Id. at 691. In this case, Fruitts alleges all of the individual County employees, except Burgess, are " policy makers for purposes of municipal liability under § 1983." (Compl. ¶ 70.)

As a general rule, there can be no basis for Monell liability in the absence of a showing the individual acted pursuant to a policy and violated plaintiff's constitutional rights. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (" If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point." (Emphasis in original)); accord Scott v. Heinrich, 39 F.3d 912, 916 (9th Cir. 1994) (" Here, the municipal defendants cannot be held liable because no constitutional violation occurred."). Based upon both Supreme Court and Ninth Circuit authority, there are four elements that must be established to impose liability on a local government entity under Monell . A plaintiff must prove: (1) he was deprived of a constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy was the moving force behind the constitutional violation. Mabe v. San Bernardino Cnty Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001); Hammel, 955 F.Supp.2d at 1216.

In addition, both the Supreme Court and the Ninth Circuit have determined municipal liability may attach in the absence of an underlying constitutional violation by an individual state actor in stances where the failure to train amounts to deliberate indifference to the rights of the person with whom the state actor comes into contact. Cit of Canton v. Harris, 489 U.S. 378, 388 (1989), abrogated in part on other grounds by Farmer, 511 U.S. 825; see also Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (The city could be liable " for improper training or improper procedure even if the individual officer charged with violating the plaintiff's constitutional rights was exonerated."). The unifying policy driving each of these decisions is to provide plaintiffs who suffer a constitutional violation an avenue for relief in instances were the individual actor is exonerated.

As explained above, Fruitts is unable to allege a deprivation of a constitutional right. Even assuming the facts, as alleged, are true, Fruitts cannot establish a constitutional violation based upon either a failure to train or policy, procedures and customs. Indeed, any wrongful conduct by the state actors was far exceeded by Fruitts's own actions. The jury made a conclusive determination Fruitts was criminally responsible for the accident; " but for" Fruitts's actions, the accident would not have occurred. In addition, Fruitts can show neither deliberate indifference nor that any policies were a moving force for the alleged constitutional violations. According to the Complaint, the County received a single citation for failure to set up the appropriate traffic control. Such a violation could hardly sustain a claim the County's policies were " deliberately indifferent" to Fruitts's constitutional rights or the County policies were a " moving force" behind the deprivation. Similarly, Fruitts has not adequately alleged the County's purported failure to train the individual employees deprived him of a constitutional right, was deliberately indifferent to that right or was a moving force behind the deprivation. Fruitts's claims under Monell fail here as a matter of law and, as such, those claims should be dismissed.

III. State Law Claims

A district court may decline to exercise supplemental jurisdiction over state-law claims if it " has dismissed all claims over which it has original jurisdiction." 28 U.S.C. 1367(c)(3). Moreover, when a district court dismisses all federal-law claims before trial, " the balance of the factors to be considered under the pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -- will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) ( en banc ); see, e.g., Crane v. Allen, No. 3:09-cv-1303-HZ, 2012 WL 602432, at *10 (D. Or. Feb. 22, 2012) (" Having resolved all claims over which it had original jurisdiction, this court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims.").

In addition, a district court may exercise supplemental jurisdiction only when it has original jurisdiction. See Herman Family Rev. Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001) (supplemental jurisdiction may only be invoked after a court has established original jurisdiction); Hunter v. United Van Lines, 746 F.2d 635, 649 (9th Cir. 1984) (" [I]t makes no sense to speak of [supplemental] jurisdiction until after a court has independently acquired jurisdiction over a federal cause of action."); see also Orozco v. Borenstein, No. CV-11-2305-PHX-FJM, 2012 WL 3762408, at * (D. Ariz. Aug. 29, 2012) (" Because we have dismissed the federal claim as moot, we have no original jurisdiction upon which supplemental jurisdiction could attach. Accordingly, the state law claims are also dismissed."). Without expressly addressing the issue of whether the court had original jurisdiction in this case, the court notes the Heck doctrine resembles a jurisdictional barrier; if the claim has not accrued, the court has no subject matter jurisdiction over the claim. See Heck, 512 U.S. at 489 (" We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action.")

The factors of judicial economy, convenience and fairness weigh in favor of this court declining to exercise supplemental jurisdiction. As defendants' motion is brought under Rule 12(b)(6), neither the court nor the parties have invested significant time and resources in federal court sufficient to justify retaining jurisdiction. The proceedings are young and, in fact, McKaig and Captain Hook have yet to file an appearance. The federal law claim was examined rather early in the proceedings, state court is a convenient forum for the parties, and declining to exercise supplemental jurisdiction respects the values of federalism and comity There is no purpose to be served by this court exercising supplemental jurisdiction over the state law claims. The court declines to exercise supplemental jurisdiction over Fruitts's and Zinzer's remaining state law claims. Accordingly, Fruitts's and Zinzer's state-law claims should be dismissed, without prejudice, and with leave to refile those claims in state court.


For the reasons set forth above, the County's Motion to Dismiss(doc. #12) should be GRANTED.

Scheduling Order

The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due February 9, 2015. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date.

If objections are filed, a response to the objections is due fourteen days after the date the objections are filed and the review of the Findings and Recommendation will go under advisement on that date.

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