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Wagoner v. City of Portland

United States District Court, D. Oregon, Portland Division

May 31, 2017



          JOHN V. ACOSTA United States Magistrate Judge.

         Pro se 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 Defendants' motion.

         Preliminary Procedural Matters

         I. Consideration of Unverified Filings.

         In her responses to Defendants' motions, Wagoner did not attest under the penalty of perjury that her factual assertions were true and correct.[1] (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.

         II. Motion to Strike.

         Wagoner 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.)

         Defendants 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.

         Factual Background

         The 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”).

         A. Initial Traffic Stop

         Wagoner and Beth Lamar (“Lamar”) attended an event at the Q Center, an LGBTQ[2]organization 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)

         Ockunzzi 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.)

         Ockunzzi 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.)

         While 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.)

         B. Wagoner's Arrest.

         Wagoner 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. (Id.)

         Ockunzzi 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.)

         The 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. ¶¶ 4, 6.)

         In 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.)

         The 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.

         C. Booking and Charges.

         The 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.)

         The 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.)

         Legal Standard

         Federal 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. 2003).

         The 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 Cir. 1997).


         Wagoner's claims challenge the entirety of Ockunzzi and Gryphon's encounter with her and Lamar - from the initial traffic stop to her post-arrest detention.

         Defendants 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).

         I. Tort Claims under Oregon law.

         Wagoner 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.

         A. False Arrest ...

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