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Nemeth v. Ellena

United States District Court, D. Oregon

May 18, 2015

ANTHONY ROBERT NEMETH, Plaintiff,
v.
WILLIAM ELLENA, Oregon State Trouper; CHRIS P. BROWN, Oregon State Police Superintendent; TIM EVINGER, Klamath County Sheriff; BRIAN BRYSON, Klamath County Deputy; and KLAMATH COUNTY, a political subdivision of the State of Oregon, Defendants.

M. Christian Bottoms, Law Office of M. Christian Bottoms, Portland, Oregon, Attorney for plaintiff.

Ellen F. Rosenblum, Andrew D. Campbell, Kenneth C. Crowley, Oregon Department of Justice, Salem, Oregon, Attorneys for defendants William Ellena and Chris Brown.

Thomas F. Armosino, Adam Zedikiah Daheim, Frohnmayer Deatherage, et al., Medford, Oregon, Attorneys for defendants Brian Bryson, Tim Evinger, and Klamath County.

OPINION AND ORDER

MARK D. CLARKE, Magistrate Judge.

Anthony Nemeth ("plaintiff") filed this action against William Ellena, Chris P. Brown, Brian Bryson, Tim Evinger, and Klamath County (collectively "defendants"), alleging numerous claims under 42 U.S.C. § 1983 and state law. Ellena and Brown move for summary judgement pursuant to Fed.R.Civ.P. 56(a). Bryson, Evinger, and Klamath County filed a separate motion for summary judgment. All parties have consented to allow a Magistrate Jude enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motions are granted and this case is dismissed.

BACKGROUND

On July 1, 2011, plaintiff was driving on Highway 140 in Klamath County, Oregon. First Am. Compl. ("FAC") ¶ 15. Plaintiff was travelling east with three companions, each on his own motorcycle, when Oregon State Police ("OSP") Trooper Ellena noticed them. Campbell Decl. Attach. 1, at 2. Ellena was on-duty and travelling west, in a designated safety corridor and marked OSP vehicle. Id. The posted speed limit in this safety corridor is 55 miles per hour ("mph"). Campbell Decl. Ex. A, at 5; Chambers Decl. ¶ 4. Ellena used his radar device to measure the speed of the four motorcycles, which registered at 72 and 71 mph. Campbell Decl. Ex. A, at 5. Senior OSP Trooper David Chambers was also on-duty, independently travelling westbound on Highway 140, and observed the four eastbound motorcycles. Chambers Decl. ¶ 4. As Ellena reversed direction to pursue plaintiff, Chambers stated over the radio that "he checked the motorcycle's speeds [sic] at 71 mph." Id.; Campbell Decl. Ex. A, at 6.

Ellena initiated a traffic stop at approximately 7:00 p.m. for speeding in a safety corridor. Campbell Decl. Ex. A, at 5; Daheim Decl. Attach. 3, at 2.[1] "Because there were multiple individuals and vehicles, " Chambers "pulled over to assist in the traffic stop." Chambers Decl. ¶ 5. At or around the same time, Klamath County Deputy Bryson arrived on-scene to provide cover. FAC ¶¶ 15, 17; Daheim Decl. Attach. 1, at 2, 4, 10.

The four motorcyclists pulled over and halted roughly in a line, and Ellena parked behind them. Campbell Decl. Ex. A, at 6; Campbell Decl. Ex. B, at 6:59-7:01. Ellena first approached the rear-most motorcyclist, Gerald Verboomen, and asked if he had any weapons on him; Verboomen responded "no." Id. When asked for his driver's license, Verboomen indicated it was in an unlocked cargo box on his motorcycle, along with two loaded firearms. Id. Ellena safely removed the firearms and retrieved Verboomen's driver's license. Id. While Verboomen had a California concealed weapon permit, he did not possess a license to carry a concealed firearm in the State of Oregon in violation of Or. Rev. Stat. § 166.250. Id.

Ellena then moved on to Thomas Mattern, asking if he had any weapons; "Mattern replied, No sir... pocket knife.'" Campbell Decl. Ex. A, at 6; Campbell Decl. Ex. B, at 7:02. Ellena obtained Mattern's divers' license, made some cursory inquiries about objects in plain view on the motorcycle, and approached the next rider - plaintiff -who was wearing a Gypsy Joker Motorcycle Club vest, including a "1 %er" patch. FAC ¶ 15; Campbell Decl. Ex. B, at 7:02; Campbell Decl. Attach. 3, at 4. Ellena had specific training regarding the Gypsy Joker Motorcycle Club that he was cognizant of during this stop. Campbell Decl. Ex. A, at 6; Campbell Decl. Attach. 1, at 3-4.

After reiterating that the reason for the traffic stop was speeding, Ellena asked plaintiff if he had any weapons. Campbell Decl. Ex. A, at 6; Campbell Decl. Ex. B, at 7:03-04. Plaintiff responded that he was carrying "a Beretta handgun in his left vest pocket and a Smith and Wesson revolver in his left side saddle bag." Id Ellena informed plaintiff that, "for my safety, " he was going to remove the loaded firearms. Id. Plaintiff did not object and was cooperative at all relevant times. Id. Once Ellena safely removed the firearm from plaintiff's person and obtained his drivers' license, plaintiff, at Ellena's request, voluntarily stepped away from the saddlebag containing the remaining firearm. Campbell Decl. Ex. B, at 7:06. This permitted Ellena to turn his attention to the lead rider, Greg Reid, who was also wearing a Gypsy Joker Motorcycle Club vest. Id; Campbell Decl. Ex. A, at 7. Although Reid was confrontational, Ellena obtained his drivers' license and safely remove multiple knives. Campbell Decl. Ex. A, at 4, 7; Campbell Decl. Ex. 13, at 7:04-10.

Ellena went back and removed the remaining firearm from the saddlebag of plaintiffs motorcycle, at which point he noticed that it bore a "Department of Corrections" emblem. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B. at 7:09. At 7:15 p.m. Ellena requested that OSP dispatch "perform a stolen check"; he told the dispatcher, via radio, the serial number of the firearm and its make/caliber. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B. at 7:15. Approximately two minutes later the OSP dispatcher informed Ellena that the firearm was registered as stolen. Campbell Decl. Ex. 13, at 7:17. The status of the stolen firearm was later confirmed by the OSP and Josephine County. Campbell Decl. Exs. C-D. After "advis[ing] [him] that the revolver he possessed was reported stolen, " Ellena Mirandized plaintiff and placed him under arrest Possession of a Stolen Firearm pursuant to Or. Rev. Stat. § 164.055(d). Campbell Decl. Ex. A, at 1, 7; Campbell Decl. Ex. B, at 7:18. After indicating that he understood his rights, plaintiff explained that "he bought the revolver [in questions from a guy... approximately 8 months ago" for 5150, despite the fact that he believed it to be worth 5500, and did not know it was stolen. Campbell Decl. Ex. A, at 7. Around 7:25 p.m., after being placed in behind-the-back handcuffs and searched, plaintiff was moved into the backseat of Ellena's patrol car. Id.; Campbell Decl. Ex. B, at 7:25; Chambers Decl. ¶ 8.

Ellena re-contacted Mattern. Id.; Campbell Decl. Ex. A, at 7. He discovered that Mattern, like Verboomen, had lied about not possessing any firearms. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B, at 7:30. In fact, during the entire length of the stop, Mattern had a loaded firearm concealed in his left boot. Id. Mattern did not have a valid Oregon concealed weapon permit, such that Ellena seized this additional firearm and arrested Mattern for Unlawful Possession of a Firearm pursuant to Or. Rev. Stat. § 166.250. Campbell Decl. Ex. A, at 2, 7; Campbell Decl. Ex. B. at 7:33-35.

At 7:50 p.m., Chambers allowed plaintiff to step out of the back seat of the patrol vehicle for approximately two minutes because he was "voicing discomfort." Chambers Decl. ¶ 7; Campbell Decl. Ex. B, at 7:50, Track 2. In addition, Chambers moved plaintiffs handcuffs so that they were in front of his body "for the sole purpose of increasing his comfort." Chambers Decl. ¶¶ 8-9. He also "inquired if [plaintiff] needed an ambulance [but plaintiff declined, stating only that] his back hurt." Id. at 7; Campbell Decl. Ex. B, at 7:50, Track 2. However, plaintiff later requested his narcotic pain medication, which was located on his motorcycle. Daheim Decl. Attach. 2, at 2. One or more OSP Troopers denied this request. Id. at 2-4.

Around 8:10 p.m., plaintiff was allowed out of the backseat of the patrol vehicle for a second time to stand and stretch. Campbell Decl. Ex. B, at 8:11, Track 2. Between approximately 8:15 p.m. and 8:20 p.m. Reid was "issued a verbal warning" for speeding, Verboomen was cited for Unlawful Possession of a Firearm, and both were "released from the scene." Campbell Decl. Ex. A, at 3-4, 7-8; Campbell Decl. Ex. B, at 7:04-10, 8:09-18. At 8:25 p.m., Mattern was placed in the backseat of the patrol car with plaintiff. Campbell Decl. Ex. B, at 8:25-26. At approximately 8:30 p.m., plaintiff was again allowed to step out of the patrol car to stand and stretch for five minutes. Campbell Dec-1. Ex. B, at 8:29-34. Track I & 2. At or around the same time, Bryson left the scene; he did not speak to plaintiff, perform any investigation, make any arrests, or take custody of any property. Daheim Decl. Attach. 1, at 2-8. At approximately 8:45 p.m., the towing company arrived to remove plaintiffs and Mattern's motorcycles. Campbell Decl. Ex. B, at 8:46.

Almost immediately thereafter. Ellena began transporting plaintiff and Matters to the Klamath County Jail; they arrived at approximately 9:35 p.m. Id. at 8:48-9:33; Campbell Decl. Ex. A, at 8. At some unspecified time after his arrival, plaintiff again requested his narcotic medication or, alternatively, to be taken to a doctor. Daheim Decl. Attach. 1, at 3. This request was denied and plaintiff did not receive any medical attention while being detained; he was released on bail at approximately 12:30 a.m. on July 2, 2011. Daheim Decl. Ex. 1. On August 24, 2011, the Klamath County District Attorney's Office dismissed the charges brought against plaintiff. FAC ¶ 25. Plaintiff subsequently "tried to get his firearms back [butt was returned two holsters and one firearm"; he was informed that the second gun "had been returned to its rightful owner.'" Id. at ¶ 26.

On June 27. 2013, plaintiff filed a complaint against Ellena, OSP Superintendent Brown, Bryson, Klamath County Sheriff Bringer, and Klamath County, asserting 42 U.S.C. § 1983 claims for: (1) deprivation of his Fourth and Fourteenth Amendment rights for illegal search and seizure; (2) deprivation of his Fourth and Fourteenth Amendment rights for false arrest/malicious prosecution; (3) deprivation of his First Amendment rights in relation to his speech and association with the Gypsy Joker Motorcycle Club; (4) deprivation of his Fourteen Amendment rights for failure to provide adequate medical care while in custody; (5) supervisory liability/defective policy maker; and (6) municipal liability. Plaintiff also alleges coextensive state law claims for false arrest, false imprisonment, and malicious prosecution, as well as an Oregon common law conversion claim. Defendants waived service of process in September 2013. Waiver of Service of Summons (Sept. 16, 2013); Acceptance/Acknowledgment of Service of Complaint (Sept. 30, 2013).

In November 2014, defendants moved for summary judgment. On February 17, 2015, plaintiff responded to defendants' motions.[2] Oral argument was held on March 11, 2015, however, plaintiff's counsel neglected to appear. Accordingly, the Court notified the parties that defendants' motions would be ruled on by the briefs that have been filed." Minute Order (Mar. 11, 2015).

STANDARD

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on tile, and affidavits, if any, "show that there is no genuine dispute as to any material fact and that the [moving party] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of a genuine issue of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T. W. Elec., 809 F.2d at 630.

DISCUSSION

This dispute centers on whether defendants' conduct violated plaintiffs constitutional rights. Defendants argue that summary judgment is warranted because the search and seizure were supported by probable cause, there is no evidence of a further significant injury or the unnecessary infliction of pain, and plaintiff did not engage in any protected expression. In addition, all individually named defendants assert that they are entitled to qualified immunity in relation to plaintiffs federal claims because their conduct was reasonable. Defendants also contend that plaintiffs' state law claims are time-barred by the Oregon Torts Claims Act's ("OTCA") notice requirement and statute of limitations.

I. Preliminary Matter

The Court must clarify two issues prior to reaching the substantive merits of defendants' motions. First, as alleged in the complaint, plaintiffs Fourth Amendment claims are premised exclusively on defendants' allegedly unlawful search and seizure. See generally FAC. Yet, with the exception of one sentence related to insufficient medical care, [3] the entirety of plaintiffs responsive briefs, which contain approximately two pages of legal argument, are devoted to defendants' allegedly excessive use of force. See, e.g., Pl.'s Resp. to OSP Defs.' Mot. Summ. J. 5-7. Because he has not moved for leave to file a second amended complaint, and there is currently no excessive force claim alleged in the FAC, plaintiff's oppositions are immaterial to the issues presently before the Court. See Wasco Prods. Inc., v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.), cert. denied, 549 U.S. 817 (2006) ("summary judgment is not a procedural second chance to flesh out inadequate pleadings") (citation and internal quotations omitted); see also Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008), cert. denied, 556 U.S. 1281 (2009) ("our precedents make clear that where, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court"). As a result, ...


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