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Daley v. McKoy

United States District Court, D. Oregon

May 31, 2018

WENDY DALEY, Plaintiff,
BRENDEN MCKOY, individually, ZACH MAJORS, individually, and WASHINGTON COUNTY, Defendants.

          MICHAEL E. ROSE BETH CREIGHTON Creighton & Rose, P.C. Attorneys for Plaintiff.

          CHRISTOPHER A. GILMORE Senior Assistant County Counsel Office of Washington County Counsel.



         This 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 unnecessary.

         For the reasons that follow, the Court DENIES Defendants' Motion to Strike, GRANTS Defendants' Motion for Summary Judgment, and DISMISSES this case with prejudice.


         The following facts are taken from the Joint Statement of Agreed Facts (#22) and the parties' summary-judgment materials and are undisputed unless otherwise indicated.

         On October 14, 2015, at approximately 10:37 p.m., Washington County Consolidated Communications Agency (WCCCA) received a 9-1-1 call from Kristen Cast[1] who lives in Northwest Portland.

         Cast 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.

         Deputy 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 mother's property.

         Deputy 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[2] 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.

         At 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 attorney.

         Deputy 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.”

         At 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.

         On 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.

         On October 29, 2015, Plaintiff returned to court and learned the charges against her had been dismissed.

         On May 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.

         On 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.


         I. Summary Judgment

         Summary 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 omitted).

         A 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. 2009)(citation omitted).

         The 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. Id.

         II. Section 1983

         Section 1983 provides:

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 redress.

         III. Oregon Tort Claims Act (OTCA), Oregon Revised Statutes ...

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