United States District Court, D. Oregon
DENNIS R. HOOPER, Plaintiff,
NORTH BEND CITY/COOS-CURRY HOUSING AUTHORITIES; LISA LUCERO, in her Official Capacity and as an Individual; LARRY SCARBROUGH, in his Official Capacity and as an Individual; et al., Defendants.
OPINION AND ORDER
Michael J. McShane, United States District Judge
December of 2013, employees of the North Bend/ Coos-Curry
Housing Authority (Housing Authority) entered plaintiff's
dwelling without notice following a power shut off to his
unit. They were acting pursuant to a policy of the Housing
Authority that treats power shut offs as an
“emergency.” Plaintiff, in his complaint, alleges
that the entry into his unit violates his civil rights under
42 U.S.C. § 1983 (unreasonable search and First
Amendment). He also brings numerous tort claims (invasion of
privacy, trespass, infliction of emotional distress) and a
claim for breach of contract. Because the individual
defendants are entitled to qualified and discretionary
immunity, they are entitled to Summary Judgment as to the
civil rights claim and the tort claims. Plaintiff's
contract claim falls outside of the statute of limitations
and must be dismissed. Finally, plaintiff has failed to plead
facts in this case are undisputed. Plaintiff was under a
residential lease with Housing Authority. Matthews Decl. Ex.
1 pages 6 and 21, ECF No. 67. As part of the lease, plaintiff
was obligated to pay his own electricity bill. Id.,
page 7. The lease also allowed the Housing Authority, as
Landlord, to “enter the dwelling unit at any time
without advance notice when there is reasonable cause to
believe an emergency exists.” Id., pages 8 and
result of plaintiff's unpaid electricity bills, the
utility company turned off the electricity to plaintiff's
rental unit on December 18 or 19, 2013. Id., pages
8-10. After his electricity was turned off, plaintiff
remained at his rental unit for a few days, and then left
without informing anyone at the Housing Authority about the
shut off. He did not return until January 2, 2014.
Id., pages 11-14.
December 23, 2013, Larry Scarbrough, a Housing Authority
maintenance employee, noticed that the meter at
plaintiff's unit had been red tagged, indicating the
electricity had been turned off. Scarbrough Decl., ¶ 3,
ECF No. 21. Mr. Scarbrough knew that plaintiff was out of
town and reported the electricity shut off to Housing
Authority management that day. Id., ¶¶
learning what had happened, Lisa Lucero, the public housing
manager for Housing Authority, contacted the electric utility
to confirm that the electricity to the unit had been shut
off. Ms. Lucero then directed Mr. Scarbrough to enter and
inspect plaintiff's unit. Lucero Decl. ¶ 4; ECF No.
22. He did so on December 24, 2013. Scarbrough Decl.
¶¶ 5-6; ECF No. 21. Finding nothing that required
immediate attention, he closed the unit, posted a notice of
his entry on the front door, and left. Id.,
Authority has a standard policy and practice to inspect a
unit when it learns that electricity has been turned off for
non-payment. Lucero Decl. ¶ 7; ECF No. 22. The purpose
of the policy and practice is to address concerns that may
result from the disconnection of utilities, often associated
with a tenant's abandonment of the unit. Turner Decl.
¶ 6; ECF No. 20. These concerns range from frozen or
burst water pipes, rotting food stuffs, vermin infestations,
distressed pets, deterioration of living areas, and
vandalism. Turner Decl. ¶ 6; Lucero Decl. ¶ 7.
Housing Authority considers the need to immediately assess
and remedy these types of problems an emergency. Turner Decl.
Housing Authority's decision to treat all electric power
disconnections as an emergency was made by the Housing
Authority's executive director by delegation of authority
from the Housing Authority's Board of Directors. Newman
Decl. ¶ 3; ECF No. 69. The Housing Authority's
policy of treating a power disconnect as an emergency and
conducting an inspection does not allow staff to make any
exceptions. Id. ¶ 7.
alleges compensatory damages in the amount of $3, 327.00.
Second Amend. Compl. 6; ECF No. 50. Plaintiff's economic
damages claim consists of the twenty dollars that he paid to
a friend to cover gas for a ride to attend a veteran's
group meeting. Matthews Decl. II, Ex. 1; ECF No. 68.
Plaintiff's purpose in attending the meeting was to poll
group members to find out if any of them had experienced
privacy issues in public housing similar to what plaintiff
experienced. Id. The remaining $3, 307 in damages
claimed by plaintiff is for emotional distress, pain, and
suffering. Id. Plaintiff chose that dollar amount
simply because he wanted a number that was
“legitimate”-more than insignificant, but less
than overzealous. Id.
the same time period for which plaintiff alleges emotional
distress in this case, plaintiff also alleges mental and
emotional distress, duress, pain and suffering, stress and
anxiety, angst and mental anguish, resulting from no fewer
than six different tortious sources unrelated to this the
December 2013 entry into his dwelling. Id. For
example plaintiff has filed a complaint alleging mental and
emotional distress as the result of the activities of his
neighbors from April 2013 through February 2017.
Id.; Dennis Hooper v. United States Dep't.
of Hous. and Urban Dev., No. 6:17-cv-00031-MC, Opinion
& Order, Dkt No. 28 (D. Or. May 31, 2017).
court must grant summary judgment if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is
“genuine” if a reasonable jury could return a
verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.
2005) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A fact is “material” if it
could affect the outcome of the case. Id. The court
reviews evidence and draws inferences in the light most
favorable to the non-moving party. Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting
Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When
the moving party has met its burden, the ...