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Herrington-Rose v. Edmiston

United States District Court, D. Oregon

May 27, 2015



STACIE F. BECKERMAN, Magistrate Judge.

Richard Herrington-Rose ("Herrington-Rose") and Sandy Rose (husband and wife, collectively "Roses") filed a First Amended Complaint against Joshua Edmiston ("Edmiston"), Lewis Menges ("Menges"), and the Salem Police Department ("SPD"), alleging claims under both federal and state law arising from Herrington-Rose's arrest on December 25, 2012. Specifically, the Roses allege two claims against the named individuals pursuant to 42 U.S.C. § 1983 for violations of Herrington-Rose's Fourth Amendment right to be free from an unreasonable seizure, and his Fourteenth Amendment Right to due process. (First Am. Compl. ¶¶ 30-41.) Additionally, the Roses allege four state law claims against the SPD - two negligence counts, one claim fo:r malicious prosecution, and a claim for intentional infliction of emotional distress ("IIED"). The Roses seek monetary relief in the form of economic and non-economic damages, including an award of punitive damages, and reasonable attorney fees and costs under 42 U.S.C. § 1988.

The individual defendants and the SPD filed a Motion for Summary Judgment seeking an entry of judgment against all of the Roses' claims. For the reasons set forth below, defendants' Motion for Summary Judgment should be granted in its entirety and the First Amended Complaint should be dismissed, with prejudice.


On or about December 25, 2012, Herrington-Rose was arrested on charges of harassment, criminal mischief, and strangulation. (Joshua Edmiston Decl. Ex. 1 at 1, Feb. 6, 2015.) Prior to his arrest, Herrington-Rose was driving his truck in Salem, Oregon. Sandy Rose was in the front passenger seat and Bruce Honeycutt ("Honeycutt"), who is Sandy Rose's son and the alleged victim, was seated in the back seat along with Honeycutt's friends/roommates, Krista Gilchrist ("Gilchrist") and Nathan Slack ("Slack"). Honeycutt was seated behind the driver's seat. (Edmiston Decl. Ex. 1 at 3.)

While the parties agree there was an altercation between Herrington-Rose and Honeycutt that evening, there is much disagreement about the details surrounding the incident. Most fundamentally, the parties disagree about whether the aggressor/assailant was Herrington-Rose or Honeycutt. Below, the Court briefly recounts both versions of the events, as reported to Officers Edmiston and Menges. Regardless, the material facts are only those contemporaneously known to the officers at the time they arrested Herrington-Rose.

In his version of the events, Herrington-Rose told the officers that Honeycutt began harassing him, including threatening him with bodily injury. Herrington-Rose pulled off the road and into a parking lot to let Honeycutt out of the vehicle. The truck's back doors cannot be opened unless the front doors are open. (Gerald Warren Decl. Ex. 1 (Deposition ofRichard Herrington-Rose 30:24-25, Nov. 17, 2014 (hereinafter "Herrington-Rose Dep.")), Feb. 11, 2015.) At that point, Honeycutt allegedly struck Herrington-Rose repeatedly on the head from the back seat. Herrington-Rose struggled to open the door of the vehicle and, upon exiting the vehicle, Honeycutt continued hitting him. (R. Grant Cook Decl. Ex. 1 at 5, March 4, 2015.) Sandy Rose exited the front, passenger-side door of the vehicle and attempted to protect Herrington-Rose from Honeycutt. (Cook Decl. Ex. 1 at 5-6.) Sandy Rose positioned herself between Herrington-Rose and Honeycutt, but she also was struck on the arm by Honeycutt while trying to defend herself. Honeycutt then ran and jumped in front of a semi-truck, which swerved to avoid hitting him. (Cook Decl. Ex. 1 at 6.) During the altercation with Honeycutt, Herrington-Rose received a laceration to his head and his glasses were thrown to the ground by Honeycutt. (Edmiston Dep. 102:19-103: 12.) Gilchrist and Slack exited the vehicle and, with Honeycutt, left the scene by foot in a southbound direction on Wallace Rd. (Cook Decl. Ex. 5 (DepositionofJoshuaEdmiston 102:15-18, December 12, 2014 (hereinafter "Edmiston Dep.")).)

Honeycutt, on the other hand, reported to Officer Menges that Herrington-Rose was calling him derogatory names, based upon his sexual orientation, as they were returning from a Christmas party. (Menges Decl. ¶ 5.) Honeycutt responded with an insult toward Herrington-Rose and, consequently, Herrington-Rose ordered him out of the truck. (Menges Decl. ¶ 5.) Herrington-Rose got out of the vehicle, opened the back door, grabbed him by the shirt collar, and dragged him out of the back seat. (Lewis Menges Decl. ¶ 6, Feb. 6, 2015.) Herrington-Rose purportedly grabbed Honeycutt by his neck, so he could not breathe, and when his grip loosened, Herrington-Rose punched Honeycutt in the stomach and face. (Menges Decl. ¶ 6; Edmiston Decl. ¶ 5.) Herrington-Rose returned to the truck and left with Sandy Rose. At some point during the altercation, Slack and Gilchrist got out of the truck. (Menges Decl. ¶ 6.)

Immediately following the altercation with Herrington-Rose, Honeycutt called 9-1-1 to request emergency medical services and police. (Edmiston Decl. ¶ 4; Menges Decl. ¶ 3.) Officers Edmiston and Menges responded to the emergency room at Salem Hospital where Honeycutt had been taken by ambulance. (Edmiston Decl. ¶ 3; Menges Decl. ¶ 4.) Officer Menges interviewed Honeycutt, who reported his version of events as set forth above.

While at the hospital, Officer Menges also interviewed Gilchrist. (Menges Decl. ¶ 11.) Gilchrist stated Herrington-Rose was calling Honeycutt derogatory names in the truck, stopped the vehicle at the apartment complex, dragged Honeycutt from the truck, and punched him in the face. (Menges Decl. ¶ 11.) Officer Menges then interviewed Slack by telephone. (Menges Decl. ¶ 12.) Similarly, Slack stated Herrington-Rose called Honeycutt derogatory names and struck him in the face and the stomach. (Menges Decl. ¶¶ 11-12; Edmiston Decl. ¶ 7.)

At the hospital, Honeycutt complained of significant pain in his left jaw, right arm, and stomach. (Menges Decl. ¶ 7-8; Edmiston Decl. ¶ 5.) Honeycutt's shirt was tom, he had a red mark on his neck, and he also claimed that during the attack Herrington-Rose broke necklaces he was wearing. (Menges Decl. ¶ 8-10; Edmiston Decl. ¶ 6.) Officer Menges stated in his declaration that he "observed [Honeycutt's] tom shirt and broken necklaces." (Menges Decl. ¶ 10.)

Officer Menges photographed Honeycutt's alleged injuries (Cook Decl. Ex. 6 (Deposition ofLewis Menges 30:20-31:6 (hereinafter "Menges Dep.") Exs. 8-10 thereto, Dec. 12, 2014).) Officer Menges reported Honeycutt had no visible injuries except for a slight red mark on the left side of his neck. (Menges Dep. 33:4-5.) Officer Edmiston stated it appeared Honeycutt's injuries were more serious than those of Herrington-Rose's injuries. (Edmiston Dep. 106:10-12 (Cook Decl. Ex. 5).) Herrington-Rose testified he was bleeding from his head due to an injury he sustained in the altercation, and he was examined and treated for his injury. (Herrington-Rose Dep. 56:18-57:25 (Cook Decl. Ex. 3).)

Based upon the report of the alleged victim, the statements by the corroborating witnesses, and the observable evidence, the officers determined there was probable cause to conclude Herrington-Rose committed three crimes: Harassment (domestic), Strangulation (domestic), and Criminal Mischief II. (Menges Decl. ¶ 13; Edmiston Decl. ¶ 8.) Nevertheless, Officer Edmiston continued to investigate, and he telephoned the Roses. (Edmiston Decl. ¶ 9). The Roses agreed to come to the SPD station and be interviewed. (Edmiston Decl. ¶ 9.) During his interview, Herrington-Rose stated he told Honeycutt to get out of the truck because Honeycutt was being disrespectful. (Edmiston Decl. ¶ 11.) He claimed Honeycutt attacked him from behind as he was opening the back door to the truck and Honeycutt struck him repeatedly on the head. (Edmiston Decl. ¶ 12.) While reciting these events, Herrington-Rose mimed his actions, but his body movements did not match his description of the incident (Edmiston Decl. ¶ 12.) For example, Herrington-Rose reenacted the scene by pushing in front of him, despite stating Honeycutt attacked him from behind. (Edmiston Decl. ¶ 12.) Further, Herrington-Rose claimed he pulled over and told Honeycutt: "It's time for you to walk home." (Edmiston Decl. ¶ 11.) In contrast, Sandy Rose told Officer Edmiston that Honeycutt demanded to be let out of the truck. (Edmiston Decl. ¶ 17.) Officer Edmiston informed Herrington-Rose that his statement differed from Sandy Rose's statement, whereas Honeycutt's statements were corroborated by Slack and Gilchrist. (Edmiston Decl. ¶ 21.)

Herrington-Rose was arrested for harassment, criminal mischief, and strangulation, and the District Attorney instituted charges against Herrington-Rose. (Edmiston Decl. ¶ 22.) Months later, in April 2013, Honeycutt recanted his statement and claimed he lied to Officers Edmiston and Menges. The District Attorney dismissed the charges against Herrington-Rose. (Herrington-Rose Dep. 16:7-17:10.)


Summary judgment is appropriate "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All material facts are resolved in a light most favorable to the nonmoving party. Id. at 331. The court must accept all ...

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