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Bogle v. Clackamas County

United States District Court, D. Oregon

November 15, 2017

TRACEY E. BOGLE, Plaintiff,
v.
CLACKAMAS COUNTY, et al., Defendants.

          Tracey E. Bogle. Plaintiff, pro se.

          Stephen L. Madkour, County Counsel, Scott C. Ciecko, Assistant County Counsel, Office of Clackamas County, Public Services Of Attorneys for Defendants.

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Plaintiff Tracey E. Bogle (“Bogle”) brings this action against the County of Clackamas, Oregon (“Clackamas County”); Craig Roberts, Sheriff of Clackamas County (“Sheriff Roberts”), personally; and against Clackamas County Sheriff's Deputies Brad O'Neil (“O'Neil”), Hilary Robinson (“Robinson”), and Eric McGlothin (“McGlothin”), personally (collectively, “Defendants”). Bogle asserts claims under 42 U.S.C. § 1983 (“§ 1983”), alleging that Defendants subjected Bogle to excessive force in violation of the Fourth Amendment, made applicable to state and local governments by the Fourteenth Amendment. Before the Court is Defendants' motion for summary judgment. For the reasons stated below, Defendants' motion is granted.

         STANDARDS

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence.” Jakeman v. Berry, 2015 WL 2062344, at *3 (D. Or. Apr. 6, 2015). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         It is the responsibility of the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Keiffer v. Pernsteiner, 967 F.2d 527 (9th Cir. 1992). In order for a party to avoid summary judgment, such facts must be supported by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Fed R. Civ. P. 56(c)(1)(A). Where an affidavit or declaration is relied on to oppose a summary judgment motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed R. Civ. P. 56(c)(4). Where the party opposing summary judgment is proceeding pro se, the court “must consider as evidence . . . all of [that party's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the party] attested under penalty of perjury that the contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

         BACKGROUND

         On April 10, 2013, Bobby Ottis, a Marion County Probation Officer, called Clackamas County dispatch asking for assistance in executing a felony arrest warrant for Tracey E. Bogle for violating his probation. Mr. Ottis believed that Bogle was staying in Eagle Creek, Oregon, in Clackamas County.

         Mr. Ottis provided dispatch with the following additional information: Bogle was on probation for felony burglary and misdemeanor assault; he was an “armed career criminal [and a] sex offender”; he had been in possession of a gun before; and he had recently stated: “If I go to prison, I'll die.” ECF 131-1 at 1. Mr. Ottis also warned that Bogle was “a big boy, ” probably weighing about 285 pounds and standing about five feet, ten inches tall, with a 56-inch chest, and that he had lifted weights while in prison. ECF 131-1 at 1; 132-2 at 4. Dispatch in turn informed the responding deputies from the Clackamas County Sheriff's Office (“CCSO”) of these background facts. The deputies also received information about Bogle through the Law Enforcement Data System (“LEDS”), which revealed his extensive criminal history, including multiple violent offenses. See, e.g., ECF 129 at 2. After this point, some details of the encounter and arrest are disputed. Because this is a motion for summary judgment, the Court views the facts in the light most favorable to and draws all reasonable inferences in favor of Bogle.

         On the afternoon of April 10, 2013, Tracey Bogle was at the home of his girlfriend, Debbie Ridley. At the time, he did not know that there was a warrant out for his arrest. Bogle was working outside behind Ms. Ridley's property in a steep, densely wooded area above a creek. Ms. Ridley had just recently arrived home, and did not know whether Bogle was at the property. Bogle's car was in the driveway, but he occasionally left his car there when he was not on the property. Robinson, McGlothin, and Sergeant Steve Strickland (collectively, the “Responding Deputies”)[1] arrived on the scene. Ms. Ridley agreed to let them search the property for Bogle.

         The Responding Deputies searched the house and some of the surrounding area, but did not locate Bogle. One deputy talked to some neighbors, who indicated that they had seen Bogle outside only a few minutes earlier. The Responding Deputies then spotted a man's sweatshirt on the back deck, and suspected that Bogle had in fact been there. According to the Responding Deputies, after another search of the property, they jointly decided to deploy a police canine to search for Bogle. Robinson gave a warning, calling “Tracey” by name and stating that if he did not surrender, a canine would be released and would bite him. Robinson then spotted Bogle in the wooded area behind the house, moving away from the Responding Deputies.

         While Bogle was doing landscaping work in the ravine, he heard his dogs at the house barking in an “unusual” way and faintly heard a woman's voice call his name. He did not respond, and instead waited and listened. He then found himself being attacked by a police dog.

         He tried to protect himself by grabbing the dog's harness. The dog managed to bite him, tearing the back-right pocket on Bogle's jeans. This caused Bogle to fall about 30 feet down the steep hill into the creek area below, injuring his leg.

         At that point, Bogle saw McGlothin and a second police dog about twenty feet away from him. McGlothin shouted “freeze or I'll release another dog.” Bogle asked McGlothin whether this was for Bogle's probation violation, and stated that he was not a threat to the deputy. At that point, McGlothin gave a command to his dog, which then bit Bogle in the forearm. Bogle resisted, but the dog continued to bite him, eventually holding on to Bogle's upper arm. McGlothin ordered Bogle to get down, and Bogle got down on his knees but refused to go any further, explaining that because they were in a creek, if he got down all the way he would be under water. McGlothin then called his dog off of Bogle and placed Bogle in handcuffs. At some point during this encounter, Robinson hit Bogle with her knee in his back, pushing him down into the ground. Afterward, the deputies took the handcuffs off of Bogle so that he could make the steep climb back up toward Ms. Ridley's house. Emergency medical technicians examined Bogle, and the deputies ultimately transported him first to a hospital and later to the Clackamas County Jail.

         Bogle sustained several injuries in the course of his arrest. He injured his leg in the fall and still suffers from a “crippling limp.”[2] Additionally, he suffered several scratches and cuts from the fall and the canine bites on his arm and back, which resulted in swelling in his arm.[3] Bogle states that he still experiences numbness and dysfunction in his arm, in addition to having scars from the wounds.

         Bogle claims in his response to Defendants' motion for summary judgment that he was left to “bleed out his wounds for 24 hours with no bed.” He acknowledged in his deposition on November 17, 2015, however, that medical staff at the hospital bandaged his wounds and that he went to the hospital before being taken to county jail for the night.[4] The Court notes that Bogle has not asserted any Eighth Amendment violation and Bogle's recitation of facts relating to the treatment of his injuries at the hospital can only be considered if relevant to his § 1983 claim of excessive force.

         DISCUSSION

         A. Standards for a Claim of Excessive Force

         A “claim of excessive force in the course of making a seizure of the person is properly analyzed under the Fourth Amendment's objective reasonableness standard.” Scott v. Harris, 550 U.S. 372, 381 (2007) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)) (quotation marks and corrections omitted). To determine the reasonableness of a seizure, a court “must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372, 383 (2007) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).

         The Ninth Circuit has outlined a three-step process for analyzing a claim of excessive force under the Fourth Amendment. “The first step of the excessive force inquiry requires us to assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted.” Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (quotation marks omitted). The second step is “to evaluate the government's interest in the use of force.” Id. at 1257. The government's interest is measured by three main factors:

(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

Id. (quotation marks omitted); see also Graham v. Connor, 490 U.S. 386, 396 (1989). These factors are “not exclusive, ” however, and courts should “examine the totality of the circumstances, considering other factors when appropriate.” Lowry, 858 F.3d at 1257. Such other factors include, for example, “whether proper warnings were given and the availability of less intrusive alternatives to the force employed.” Id. at 1259 (quotation marks omitted). The third and final step, as articulated by the Ninth Circuit, requires courts to “balance the gravity of the intrusion on [the individual's] Fourth Amendment rights against the [government's] need for that intrusion.” Id. at 1260.

         The objective reasonableness test is necessarily fact-dependent. The relevant factors “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, ” because “police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. As the Supreme Court has recognized, “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, ” and thus “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.” Id. at 396 (citations and quotation marks omitted).

         The Ninth Circuit has “held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly, ” because “the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). If, however, there are “no genuine issues of material fact and ‘the relevant set of facts' has been determined, the reasonableness of the use of force is ‘a pure question of law.'” Lowry, 858 F.3d at 1256 (quoting Scott, 550 U.S. at 381 n.8).

         B. Alleged Force Used Against Bogle

         Bogle claims he was subjected to three different uses of force during his arrest: first, the bite on his backside which caused him to fall; second, the bites on his arm when McGlothin commanded his dog to bite Bogle; and third, Robinson's force against Bogle's back. The Court analyzes each separately, although the Court first discusses in greater detail the facts and law relating to the use of canines.

         1. Bogle's Encounters with Police Dogs

         There is factual dispute regarding how many police dogs Bogle came into contact with during his arrest, and who was responsible for those dogs. Defendants maintain that Bogle had only one encounter with a police dog, McGlothin's. O'Neil also deployed his canine (i.e., took his canine out of his vehicle and onto the property with him), [5] but states that he maintained control of the canine at all times and that neither he nor his canine came into contact with Bogle.[6]Bogle, on the other hand, claims that he had two encounters with police dogs, which he believes were two different dogs. One encounter was before Bogle fell and one was after he fell. The second police dog was standing near and commanded by McGlothin. While Bogle does not have personal knowledge of which canine belonged to which deputy, Bogle asserts that he saw a dog with McGlothin immediately after Bogle's fall, which was caused by a canine. Bogle notes that a dog could not have made it from where Bogle originally was located, before he fell, to where McGlothin and his dog were located after Bogle's fall in the time it took Bogle to fall to the second location.

         The Court assumes for purposes of the pending motion that Bogle had two contacts with one or more police canines. It is irrelevant whose canine was involved in the first contact, because Defendants O'Neil, McGlothin, and Robinson jointly decided to use police canines to search for Bogle. Thus, they are all jointly responsible for the first canine bite.[7]

         a. First Canine Bite

         With each application of force, the first step is to evaluate the type and amount of force inflicted on the plaintiff. Lowry, 858 F.3d at 1256-57. Bogle asserts that the use of a police canine to locate and hold a suspect constitutes “lethal force.” Ninth Circuit precedent, however “establishes that characterizing the quantum of force used with regard to the use of a police dog depends on the specific factual circumstances.” Id. Therefore, the Court must analyze each use of the canine, or bite, to characterize its level of force.

         The Ninth Circuit recently summarized some of its precedent on the use of police canines:

In Smith v. City of Hemet, 394 F.3d 689, 701-02 (9th Cir. 2005) (en banc), we held that the use of a police dog constituted excessive force where the officers sicced the dog on the plaintiff three times, including once after he had already been pinned down, and then pepper sprayed his open wounds. Similarly, in Chew [v. Gates], we concluded that “the force used to arrest [the plaintiff] was severe” because the dog bit the plaintiff three times, dragged him between four and ten feet, and “nearly severed” his arm. 27 F.3d at 1441. On the other hand, in Miller v. Clark County, we held that the use of force, although considerable and serious, was nonetheless reasonable and did not rise to the level of “deadly force, ” even though the dog apprehended a fleeing suspect with a bite that lasted between forty-five and sixty seconds, “shredded” the plaintiff's muscles, and reached the bone. 340 F.3d at 961-66.

Lowry, 858 F.3d at 1256-57 (first alteration added, second alteration in original). Considering both the “risk of harm posed by [the] particular use of force, and the actual harm caused, ” the Ninth Circuit in Lowry found that the district court had properly characterized the use of a canine as “moderate” where the officer followed closely behind the canine and called it off of the plaintiff “very quickly after the initial contact” upon finding that the plaintiff was not a threat (and in fact was asleep). Id. at 1257.

         Here, considering the risk of harm and the actual harm caused in having a police dog search the woods for Bogle upon the Responding Deputies' arrival and inability to locate Bogle, the Court finds the use of force to be moderate. The risk of harm to Bogle was that the dog would bite and hold Bogle until a deputy arrived. Clackamas County canines are trained to bite and hold persons until deputies arrive, and to inflict the least amount of physical injury possible to the person. The risk of harm did not foreseeably involve Bogle himself falling and injuring his leg, though this was the actual harm caused.[8] The force used in this encounter was less severe than the force deployed in Smith and Chew. The Court finds that, under the circumstances, the force used in this encounter with Bogle was moderate.

         The next step is to determine the government's interest in securing Bogle's arrest. Applying the three-factor test from Graham v. Connor, the first factor to be considered is the severity of the crime for which Bogle was sought. Bogle was wanted for violating his probation, based on his underlying crimes of felony burglary and misdemeanor assault. Bogle argues that his original parole violation in and of itself-drinking alcohol-was minor, and therefore that the officers' use of force to arrest him was unreasonable. Although Bogle is correct that drinking alcohol in violation of parole conditions is itself a minor transgression, Bogle was actually being sought because Mr. Ottis reported that he was “wanted, ” that there was a “felony warrant out for him, ” and that he was “not living where he was supposed to be living” while on probation. ECF 132-2 at 2-4. There is some support for Bogle's argument that this, while resulting in a “felony warrant, ” as the deputies point out, does not qualify as a serious offense. See Jones v. Pierce County, 2014 WL 4409608, at *3 (W.D. Wash. Sept. 8, 2014) (“Jones was wanted for failing to report to probation. He was allowed to serve his sentence for the underlying offense in the community presumably because he was not a threat to the public . . . a reasonable jury could conclude that the severity of the crime and situation does not support [the officer's] use of force.”); see also Tennessee v. Garner, 471 U.S. 1, 14 (1985) (“[W]hile in earlier times the gulf between felonies and the minor offences was broad and deep, today the distinction is minor and often arbitrary.” (citation and quotation marks omitted)). The perspective of the deputies on the scene, however, was based on what they learned from Mr. Ottis: that Bogle had “taken off” from Mr. Ottis, was “possibly hiding” at Ms. Ridley's house, was an armed career criminal, felt he would “die” if he went back to prison, had a history of violent offenses, and had at one time been in possession of a gun. Thus, although this factor does not weigh heavily in either direction, it tips slightly in favor of Defendants.

         The second factor, whether the suspect posed a threat to the safety of the officers, also weighs in favor of the Defendants in this case. Before deciding to release a canine, the Responding Deputies were aware, based on Mr. Ottis' warnings, that Bogle had been in possession of a gun in the past, that he was an “armed career criminal” and a sex offender, and that he had a history of violent criminal activities. Mr. Ottis also warned the deputies that Bogle was a large, strong, person, who was determined to avoid going back to prison.[9] No responding deputy had the opportunity to search Bogle for weapons. Bogle suggests that the Responding Deputies knew he was not armed or dangerous because his girlfriend, Ms. Ridley, told them as much. But from the perspective of an officer on the scene, it was reasonable to choose to rely on the statement of Mr. Ottis, a fellow law enforcement officer, and to approach the situation with caution. Additionally, the Responding Deputies reasonably believed that Bogle was familiar with the area because he had been staying there with his girlfriend, while they were not.[10] This led the Responding Deputies to believe that Bogle had a strategic advantage over them, and to fear that he could ambush them, set traps, or hide weapons in the densely wooded, uneven terrain. Thus, the second factor weighs in favor of Defendants.

         The final of the Graham factors, whether the suspect is attempting to resist or evade arrest, also weighs in favor of the Responding Deputies. Bogle asserts that he was not trying to hide from the deputies-that he was simply working outside behind Ms. Ridley's house, did not know that he was being sought, and did not hear any canine warning. But once again, the important question is not Bogle's subjective intent. Rather, the Court looks at the perspective of a reasonable officer on the scene. The Responding Deputies had been on the scene for some time, speaking with Ms. Ridley and examining the surrounding area. Bogle had not made himself known, even though Ms. Ridley's neighbors informed the Responding Deputies that they had just seen Bogle a few minutes before the Responding Deputies arrived. Bogle does not dispute that he did not communicate with the Responding Deputies and that he was located in an area where it would be difficult to find someone. Additionally, Mr. Ottis informed the Responding Deputies that Bogle had failed to report to Mr. Ottis as required, and that Bogle had said “If I go to prison, I'll die.” Furthermore, Robinson spotted Bogle in the woods, moving away from the Responding Deputies, although Bogle claims it would have been impossible for Robinson to see into the area where Bogle was. Regardless of whether Robinson could see Bogle moving away, there was sufficient information for the Responding Deputies reasonably to conclude that Bogle was at least hiding, if not actively evading arrest.

         Courts may also consider the availability of other means of effectuating an arrest, Smith, 394 F.3d at 703, and this element is particularly relevant in the case at hand. The Responding Deputies' decision to use a canine to search for Bogle was made largely because of the terrain in which they were operating. Bogle does not dispute the characterization of the area-both sides agree that it was rural and densely wooded, with thick underbrush and steep ravines, making it difficult to navigate. The Responding Deputies decided that the safest and most effective way to locate Bogle would be to use canines, which are better able to maneuver steep terrain with dense vegetation and have a sense of smell that allows them to locate someone who is not visible.

         Another relevant factor to the excessive force analysis is whether there was any warning given. According to the Responding Deputies, Robinson gave a warning to Bogle when she spotted him in the ravine below her. Bogle insists that neither Robinson, nor anyone else, gave a warning that Bogle might be bitten if he did not surrender, at least before the first canine bite he sustained. He also insists, however, that he was too far away to have heard such a warning- while also acknowledging that he faintly heard a woman's voice say his name, “Tracey.” Ms. Ridley stated generally in her declaration dated June 4, 2017, that she was near the Responding Deputies “most of the time” and she did not hear them give a warning to Bogle. ECF 198-3 at 36, ¶ 11. She also indicated that she believed she would have heard an announcement, had one been given. Id. ¶ 12. But Ms. Ridley specifically testified in detail at her deposition of December 9, 2015, that she was in her house for much of the time the Responding Deputies were outside searching for Bogle; that she closed her doors to keep her dogs inside; that her windows were also closed; that she did not “even know where [the Responding Deputies] went”; that she thinks they may have damaged a fence (which she did not discover until the next day); that she “could not hear what they were saying”; that she “didn't see them in the back of the property looking . . . didn't see any of that”; that they could have been talking outside; and that she spent approximately five minutes on the telephone talking to a friend, “hysterical” and “crying.” ECF 198-1 at 291-303 (Depo Tr. 34-46). Therefore, Bogle has not put forward evidence that genuinely disputes Defendants' evidence that Robinson gave a canine warning.

         Ninth Circuit case law supports the conclusion that the Clackamas County deputies used a reasonable amount of force to effectuate Bogle's arrest. In Smith v. City of Hemet, a woman called the police and said that her husband was hitting or otherwise becoming physical with her. She told police that he did not have a weapon. 394 F.3d at 693. When officers arrived on scene Smith did not obey officers' commands to take his hands out of his pockets. At some point, officers told him that a canine might be sent to subdue him. Then, officers sprayed Smith with pepper spray, and Smith attempted to go back inside his home. Officers then grabbed Smith and threw him down on the porch. At that point, an officer ordered a canine to attack him. Officers were still unable to secure both of his arms, and officers ordered the canine to bite Smith again. The officers then ordered the dog to release Smith, and proceeded to drag him off of his porch. At that point, Smith was shielding one of his arms from the dog, and the officers ordered ...


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