United States District Court, D. Oregon
MICHAEL E. ROSE BETH CREIGHTON Creighton & Rose, P.C.
Attorneys for Plaintiff.
CHRISTOPHER A. GILMORE Senior Assistant County Counsel Office
of Washington County Counsel.
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.
matter comes before the Court on the Motion (#25) for Summary
Judgment and the Motion (#37) to Strike filed by Defendants
Brenden McKoy, Zach Majors, and Washington County. After
reviewing the record the Court concludes the record is
sufficiently developed, and, therefore, oral argument is
reasons that follow, the Court DENIES
Defendants' Motion to Strike, GRANTS
Defendants' Motion for Summary Judgment, and
DISMISSES this case with
following facts are taken from the Joint Statement of Agreed
Facts (#22) and the parties' summary-judgment materials
and are undisputed unless otherwise indicated.
October 14, 2015, at approximately 10:37 p.m., Washington
County Consolidated Communications Agency (WCCCA) received a
9-1-1 call from Kristen Cast who lives in Northwest Portland.
told the 9-1-1 dispatcher that a woman was walking around her
house and that it was the same woman who was photographed on
her mother's security camera walking around the property
of her mother, Phyllis Cast, in another part of Portland the
night before. Cast described the suspect as a “woman in
her 50s” [sic] and “wearing jeans”
and a “cardigan” over her shirt. Cast also
described the vehicle driven by the woman as a “silvery
gray” vehicle and gave the dispatcher a license plate
number of “ZCA 002.” This information was relayed
to officers in the field.
McKoy, a Washington County Sheriff's officer, responded
to Cast's call, arrived at her residence at approximately
10:47 p.m., and interviewed Cast about the incident. Cast
told Deputy McKoy that she recognized the person on her
property as the person who was recorded on a security camera
video the evening before at the home of her mother in
Southwest Portland. Kristin Cast also told Deputy McKoy that
the person on the video had backed into a vehicle owned by
Dustin Richard, her mother's boyfriend, on her
McKoy contacted Richard by telephone and interviewed him
about the incident. Richard confirmed there was security
camera video of someone on Phyllis Cast's property where
his vehicle had been parked the night before. He also
confirmed his vehicle had been damaged. Deputy McKoy also
spoke to Phyllis Cast, who said she found a female's shoe
that was left behind at the scene and described it as a
“brown wedge.” In the meantime Plaintiff's
vehicle with the license plate number reported by Kristin
Cast was stopped by another Washington County
officer at the corner of N.W. Quail Hollow Drive
and N.W. Hawk Place, a few blocks from Kristin Cast's
residence. The vehicle was a dark blue Volvo station wagon.
approximately 11:24 p.m., Deputy McKoy arrived at the
location where Plaintiff's vehicle had been stopped. He
asked Plaintiff to step out of her vehicle and questioned her
about the incident. He then allowed Plaintiff to call her
McKoy inspected Plaintiff's vehicle and took pictures of
the vehicle including the scratches on the back bumper. He
also viewed the security camera video sent by Richard on an
iPhone belonging to Deputy Majors. Deputy McKoy concluded
Plaintiff was the person in the security camera video based
on his personal observation of Plaintiff at the scene. Deputy
McKoy conferred with Deputy Majors and Corporal Adam Rorick,
and both agreed there was probable cause for Plaintiff's
arrest. At approximately 11:36 p.m. Deputy McKoy arrested
Plaintiff for failure to perform the duties of a driver when
she hit Richard's vehicle. Deputy McKoy informed Richard
that a suspect had been detained, and Richard stated he
wanted to “press charges.”
approximately 11:55 p.m. Deputy McKoy transported Plaintiff
to the Washington County jail in Hillsboro, Oregon, where she
was booked and held for approximately three and a half hours.
Because the alleged crime occurred in Multnomah County,
Deputy McKoy transported Plaintiff to the Multnomah County
Detention Center (MCDC) in Portland where she was held for
several hours before she was released.
October 16, 2015, Plaintiff was arraigned on the charge of
Failure to Perform the Duties of a Driver in an Accident, to
which she entered a plea of “not guilty.” The
court continued the matter to October 29, 2015.
October 29, 2015, Plaintiff returned to court and learned the
charges against her had been dismissed.
8, 2017, Plaintiff filed a civil action against Deputy McKoy,
Deputy Majors, and Washington County. In her Complaint
Plaintiff alleges a claim against Deputies McKoy and Majors
in their individual capacities pursuant to 42 U.S.C. §
1983 for violation of her Fourth and Fourteenth Amendment
rights to be free from arrest absent probable cause.
Plaintiff also alleges state-law claims against Washington
County for false arrest and negligence.
March 14, 2018, Defendants filed a Motion (#25) for Summary
Judgment. On April 23, 2018, Defendants also filed a Motion
(#37) to Strike certain evidence offered by Plaintiff as part
of her Response to Defendants' Motion.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Washington Mut. Ins.
v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011).
See also Fed. R. Civ. P. 56(a). The moving party
must show the absence of a dispute as to a material fact.
Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146
(9th Cir. 2005). In response to a properly supported motion
for summary judgment, the nonmoving party must go beyond the
pleadings and show there is a genuine dispute as to a
material fact for trial. Id. "This burden is
not a light one . . . . The non-moving party must do more
than show there is some 'metaphysical doubt' as to
the material facts at issue." In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation
dispute as to a material fact is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
2002)(quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). The court must draw all reasonable
inferences in favor of the nonmoving party. Sluimer v.
Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
"Summary judgment cannot be granted where contrary
inferences may be drawn from the evidence as to material
issues." Easter v. Am. W. Fin., 381 F.3d 948,
957 (9th Cir. 2004)(citation omitted). A “mere
disagreement or bald assertion” that a genuine dispute
as to a material fact exists “will not preclude the
grant of summary judgment.” Deering v. Lassen Cmty.
Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797,
at *2 (E.D. Cal., Jan. 20, 2011) (citing Harper v.
Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). When
the nonmoving party's claims are factually implausible,
that party must "come forward with more persuasive
evidence than otherwise would be necessary." LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.
substantive law governing a claim or a defense determines
whether a fact is material. Miller v. Glenn Miller Prod.,
Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the
resolution of a factual dispute would not affect the outcome
of the claim, the court may grant summary judgment.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
Oregon Tort Claims Act (OTCA), Oregon Revised Statutes