United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA United States Magistrate Judge.
plaintiff Precious Wagoner (“Wagoner”) brings
this civil rights action under 42 U.S.C. § 1983 and
Oregon law against Defendants City of Portland (“the
City”), Joel Ockunzzi (“Ockunzzi”), and
Christopher Gryphon (“Gryphon”) (collectively,
“Defendants”). Ockunzzi and Gryphon
(collectively, “the Officers”), officers of the
Portland Police Bureau (“PPB”), arrested Wagoner
in 2012 following a traffic stop. Wagoner asserts fifteen
causes of action against the City, Ockunzzi, and Gryphon,
challenging the stop, arrest, use of force during the arrest,
detention, and prosecution. At the core of her claims,
Wagoner alleges the stop and arrest were discriminatory and
not supported by probable cause. Defendants now move for
summary judgment on all of Wagoner's claims. (ECF No.
52.) For the reasons that follow, the court grants
Consideration of Unverified Filings.
responses to Defendants' motions, Wagoner did not attest
under the penalty of perjury that her factual assertions were
true and correct. (ECF Nos. 74, 76, 80.) The court therefore
cannot consider Wagoner's responses as evidence for
purposes of summary judgment. Fed.R.Civ.P. 56(c)(1);
Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004)
(attestation under penalty or perjury is prerequisite for
considering a pro se plaintiff's motions and pleadings on
summary judgment). Accordingly, the court will not consider
as evidence Wagoner's factual assertions in her responses
to Defendants' motions.
Motion to Strike.
filed an additional response to Defendants' motion after
Defendants filed a reply. (ECF No. 76.) Defendants moved to
strike Wagoner's second filing as improper under the
Federal and Local Rules of Civil Procedure. (ECF No. 77.) In
response, Wagoner filed a document replicating portions of
her complaint. (ECF No. 80.)
are correct that Local Rule 7(f)(3) bars briefing beyond one
response and one reply on a motion for summary judgment, with
an exception not applicable here. Wagoner's additional
response was procedurally improper. Nonetheless, the court
declines to strike Wagoner's additional response. Wagoner
is proceeding without the assistance of counsel. Her filings
in this case, including her response, the challenged second
response, and her response to the motion to strike, total
nine pages. Wagoner did not seek to introduce new evidence in
her additional briefing, or otherwise cause Defendants undue
prejudice. Accordingly, the court exercises its discretion
and declines to strike Wagoner's additional response.
following statement of facts primarily derives from the
evidence submitted by Defendants as part of the motion for
summary judgment. In addition to affidavits from Ockunzzi,
Gryphon, and other PPB officers, Defendants submitted the
transcripts from the bench trials of Wagoner and Beth Lamar
(“Lamar”) on traffic violation charges. Although
Wagoner's Second Amended Complaint (“SAC”)
(ECF No. 7) is not admissible evidence at this stage of the
proceedings, the court references some of its uncontested
factual allegations to provide context. See Moran v.
Selig, 447 F.3d 748, 759-60 (9th Cir. 2006) (a complaint
“cannot be considered as evidence at the summary
judgment stage because it is unverified”).
Initial Traffic Stop
and Beth Lamar (“Lamar”) attended an event at the
Q Center, an LGBTQorganization in north Portland, on November
18, 2012. (SAC ¶ 12.) Ockunzzi and Gryphon were on
patrol together, in a “partner car.” (Decl. of
Joel Ockunzzi (“Ockunzzi Decl.”) (ECF No. 54),
¶ 3.) Ockunzzi drove the police car. (Id.)
Wagoner and Lamar left the event in a Honda Civic driven by
Lamar (“the Honda”). (SAC ¶ 12.) Ockunzzi
and Gryphon encountered the Honda on Martin Luther King
Boulevard (“MLK”). (Ockunzzi Decl. ¶ 4.)
Prior to encountering the Honda on MLK, Ockunzzi and Gryphon
had not driven past the Q Center or along the same route as
Wagoner and Lamar. (Id. ¶ 5, Decl. of
Christopher Gryphon (“Gryphon Decl.”) (ECF No.
55), ¶ 6; Decl. of Garrett Dow (“Dow Decl.”)
(ECF No. 56), ¶ 5 & Ex. A.) Ockunzzi observed the
Honda make an illegal right turn onto MLK. (Ockunzzi Decl.
¶ 5.) Following behind the Honda, Ockunzzi observed two
additional traffic infractions - exceeding the posted speed
limit and changing lanes without signalling. (Id.
¶¶ 6-7.) Ockunzzi then initiated a traffic stop.
(Id. ¶ 8.) Lamar pulled over, into a gas
station parting lot. (Id.) Ockunzzi and Gryphon
stopped and approached the Honda on foot. (Id.
¶ 8; Gryphon Decl. ¶ 6)
first approached Lamar, and requested her driver's
license, vehicle registration, and proof of insurance.
(Ockunzzi Decl. ¶ 9.) Ockunzzi and Gryphon observed
Lamar and Wagoner sitting in the Honda without wearing
seatbelts. (Id. ¶ 9, Gryphon Decl. ¶ 6,
Mot. for Summ. J. (ECF No. 52), Ex. 1 (“Lamar
Tr.”), 4/2-4, Ex. 2 (“Wagoner Tr.”),
3/20-24.) Ockunzzi asked for Wagoner's name and date of
birth, to write her a citation for not wearing a seatbelt
while riding in a moving car. (Ockunzzi Decl. ¶¶
10-11.) Lamar stated “she's not driving so
that's illegal, but it's Precious Lamar.”
(Id. ¶ 10.) Ockunzzi asked Wagoner for her date
of birth. (Id.) Wagoner replied “I'm not
driving, you can't ask me.” (Id.)
returned to the police car. (Id. ¶ 12.) There,
he conducted a database search for the license plate of the
Honda and for Lamar's name. (Id.) The search
returned an oustanding arrest warrant associated with
Lamar's name. (Id.) The warrant was for Wendy
Duffey (“Duffey”). (Id.) The search
result gave a physical description of Duffey and indicated an
association with Lamar. (Id.) According to the
police database, Duffey had a similar physical build to
Wagoner. (Id.) Both Duffey and Wagoner have tattoos
on their hands. (Id.) Based on the similarities
between Duffey's description and Wagoner, Duffey and
Wagoner's shared association with Lamar, and
Wagoner's refusal to provide identifying information,
Ockunzzi believed Wagoner was not “Precious Lamar,
” but was Duffey. (Id. ¶¶ 12-14.)
Ockunzzi conducted the database search, Gryphon stayed with
the Honda. (Gryphon Decl. ¶ 7.) Gryphon approached
Lamar's window and began talking with her. (Id.)
Lamar repeatedly asked why the Officers had stopped the Honda
and why Ockunzzi wanted to know Wagoner's name.
(Id.) Lamar also asserted that the Officers could
not lawfully ask about anything other than Lamar's
driver's license, the Honda's registration, and
liability insurance. (Id.) Gryphon asked Wagoner for
her name. (Id.) Lamar reiterated her belief that
Gryphon could not lawfully ask Wagoner for her name. (Wagoner
Tr. 12/14-16.) Gryphon responded “I'm speaking to
the white male to your right.” (Id. 12/16-17.)
Lamar informed Gryphon that Wagoner was a black woman.
(Id. 12/22-23.) Ockunzzi returned to the Honda and
approached Wagoner's window. (Ockunzzi Decl. ¶ 13.)
Again, Ockunzzi asked Wagoner for her name and date of birth.
(Id.) Wagoner said “You can't fucking ask
me that.” (Id.)
and the Officers' accounts of her arrest differ.
According to Ockunzzi, he informed Wagoner that he needed her
name to confirm whether she had an arrest warrant, and also
needed the information to fill out a traffic citation.
(Id.) Wagoner began making exaggerated movements,
denied having any identification with her, and continued to
assert that Ockunzzi had no right to talk to her.
(Id. ¶ 14.) In Ockunzzi's experience,
Wagoner's conduct was consistent with that of persons
attempting to avoid outstanding warrants. (Id.).
Ockunzzi told Wagoner that he would arrest her if she did not
tell him her name and date of birth. (Id. ¶
15.) Wagoner stated she did not need to identify herself and
again refused to give her name. (Id.) Ockunzzi
repeated that he would arrest Wagoner if she did not identify
herself. (Id.) Wagoner and Lamar began to yell at
one another about whether Wagoner should identify herself.
then told Wagoner she was under arrest and told her to place
her hands on her head. (Id. ¶ 16.) Wagoner
shouted that she was not under arrest. (Id.)
Ockunzzi took hold of Wagoner's hand and began to pull
her from the Honda. (Id.) Wagoner used her other
hand to pull herself back into the car. (Id.)
Gryphon saw and heard that Wagoner was not cooperating, and
moved to the passenger side of the Honda to assist Ockunzzi.
(Gryphon Decl. ¶ 9.) The Officers tried together to pull
Wagoner from the car. (Id. ¶ 10, Ockunzzi Decl.
¶ 16.) Wagoner continued to pull herself into the car.
(Ockunzzi Decl. ¶ 16.) Lamar got out of the Honda and
began to yell at the Officers. (Id., Gryphon Decl.
¶¶ 10-11.) The confrontation escalated, and
Ockunzzi used his radio to call for additional officers.
(Ockunzzi Decl. ¶ 16.) Ockunzzi threatened to use pepper
spray or a Taser on Wagoner if she continued to resist, but
decided against using either. (Id. ¶ 17.)
Wagoner opposed being pulled from the car by kicking and
pulling herself into the car. (Id.) Wagoner locked
some of the car doors in an attempt to keep the Officers out
of the car. (Id. ¶ 18.)
Officers pulled Wagoner out of the car after an additional
physical struggle. (Id. ¶¶ 18-20.) PPB
Officer James Quackenbush (“Quackenbush”) arrived
in response to Ockunzzi's call for additional officers.
(Decl. of James P. Quackenbush (“Quackenbush
Decl.”) (ECF No. 57), ¶¶ 3-4.) Once out of
the Honda, Ockunzzi and Gryphon attempted to handcuff
Wagoner. (Ockunzzi Decl. ¶ 20, Gryphon Decl. ¶ 16;
Quackenbush Decl. ¶¶ 4, 6.) Wagoner twisted her
torso, kicked, and held her arms against her torso while the
Officers attempted to handcuff her. (Ockunzzi Decl. ¶
20, Gryphon Decl. ¶ 16; Quackenbush Decl. ¶¶
Wagoner's account, Ockunzzi did not inform her of the
warrant or his need to issue a traffic citation. (Wagoner Tr.
21/22-22/1.) Instead, Ockunzzi returned to the Honda and
asked Wagoner for her name and other information.
(Id. 21/5-11.) Wagoner told Ockunnzi she did not
have to talk to him because she was not driving.
(Id. 21/9-11.) Ockunzzi and Gryphon continued to
pressure Wagoner to identify herself. (Id.
21/12-13.) Lamar told the Officers Wagoner's full name,
which Wagoner confirmed. (Id. 21/13-15.) The
Officers then threatened to “mace” Wagoner and
began to pull her out of the car. (Id. 21/16-19.)
She briefly resisted the officers because she did not
understand what was happening or why she was being arrested.
(Id. 21/16-20.) The Officers told her she was under
arrest for giving false information. (Id. 21/22-23.)
remaining facts are not in dispute, based on the record
before the court. The Officers handcuffed Wagoner while she
was prone on the ground. (Ockunzzi Decl. ¶ 20, Gryphon
Decl. ¶ 18; Quackenbush Decl. ¶¶ 4, 6.)
Ockunzzi searched Wagoner's person, including by lifting
her shirt above her waist to check the waistline of her pants
for weapons or other contraband. (Ockunzzi Decl. ¶¶
21-22, Gryphon Decl. ¶ 19.) Wagoner objected loudly to
Ockunzzi's search of her person, asserting only a female
officer could search a female arrestee. (Ockunzzi Decl.
¶ 21, Gryphon Decl ¶ 19.) During or after the
search, Ockunzzi asked Wagoner why she fought the Officers.
(Ockunzzi Decl. ¶ 21.) Wagoner stated she did not think
the Officers could legally talk to her, and that she had
“freaked out” because she did not think she was
subject to arrest. (Id.) PPB Sergeant Jan Ellertson
(“Ellertson”), who arrived as the Officers
handcuffed Wagoner, took statements from the Officers and
witnesses to the incident. (Id. ¶ 23, Ellertson
Decl. ¶ 5 & Ex. A.) While still at the scene of the
arrest, Ockunzzi issued Wagoner a citation for violating ORS
§ 811.210 by failing to wear a seatbelt.
Booking and Charges.
Officers transported Wagoner to PPB North Precinct
(“North Precinct”). (Ockunzzi Decl. ¶ 25.)
At North Precinct, the Officers placed Wagoner in a holding
cell. (Id. ¶ 26.) The holding cell did not
contain hazardous materials such as used toilet paper or
blood. (Id., Ellertson Decl. ¶¶ 6-7.) In
the holding cell, Ockunzzi took three photographs of
Wagoner's head and upper torso - one head-on, and one
from each side. (Ockunzzi Decl. ¶ 26 & Ex. C.)
Ellertson spoke with Wagoner while Wagoner was in the holding
cell. (Ellertson Decl. ¶¶ 6, 8.) While talking to
Ellertson, Wagoner again stated she had “freaked
out” during the stop and her arrest. (Id.
¶ 8.) After spending approximately 45 minutes at North
Precinct, the Officers transported Wagoner to the Multnomah
County Detention Center (“MCDC”) for booking.
(Ockunzzi Decl. ¶ 27.) Ockunzzi charged Wagoner with
violating ORS § 807.620 by using a false name and ORS
§ 162.315 by resisting arrest. (Id. ¶ 27.)
criminal charges against Wagoner for resisting arrest and
using a false name were dismissed at arraignment for an
unknown reason. (Multnomah Cnty. Cir. Ct. Register of
Actions, MSJ Ex. 4.) At a bench trial, Multnomah County
Circuit Judge Stephen Bushong found Wagoner not guilty of the
seatbelt violation. (Wagoner Tr. 25:6-7.)
Rule of Civil Procedure (“Rule”) 56(c) authorizes
summary judgment if no genuine issue exists regarding any
material fact and the “moving party is entitled to
judgment as a matter of law.” The moving party must
show an absence of an issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving
party must demonstrate its entitlement to summary judgment
while “[t]he party opposing the motion is under no
obligation to offer affidavits of any other materials in
support of its opposition.” Henry v. Gill
Industries, Inc., 983 F.2d 943, 949 (9th Cir. 1993).
Nonetheless, 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. Celotex, 447 U.S. at 324. A
nonmoving party cannot defeat summary judgment by relying on
the allegations in the complaint, or with unsupported
conjecture or conclusory statements. Hernandez v.
Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir.
court's role is not to “weigh the evidence or
determine the truth of the matter, but only determine
whether there is a genuine issue for trial.” Balint
v. Carson City, 180 F.3d 1047 (9th Cir. 1999). The court
must view the inferences drawn from the facts in the light
most favorable to the nonmoving party. Bell v. Cameron
Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982).
The court has an obligation to review the sufficiency of a
motion for summary judgment and supporting evidence, even if
the non-moving party does not submit a response supported by
evidence. In re Rogstad, 126 F.3d 1224, 1227 (9th
claims challenge the entirety of Ockunzzi and Gryphon's
encounter with her and Lamar - from the initial traffic stop
to her post-arrest detention.
submitted six affidavits in support of their motion for
summary judgment, accompanied by documentary evidence.
Wagoner submitted images of two documents apparently
associated with her criminal charges and traffic violation
from the incident. The transcripts of Wagoner and Lamar's
bench trials are properly authenticated by the court
reporter, and thus appropriate to consider as evidence.
Fed.R.Civ.P. 80(c); Orr v. U.S. Bank, NT & SA,
285 F.3d 764, 777 (9th Cir. 2002) (applying Rule 80(c) to
trial transcripts from state court).
Tort Claims under Oregon law.
brings the following tort claims under Oregon law: wrongful
arrest, two separate assault claims, battery, negligence,
false imprisonment, malicious prosecution, and wrongful use
of civil proceedings. Under the Oregon Tort Claims Act,
actions against public employees for torts committed in the
course of employment must be brought against the public body.
Or. Rev. Stat. § 30.265(2). Wagoner's state-law
claims are therefore against the City, based on Ockunzzi and
Gryphon's conduct during the course of their employment.
The City seeks summary judgment on all of Wagoner's
state-law claims as either unsupported by the record or
negated by probable cause.
False Arrest ...