United States District Court, D. Oregon
C. Hoyt, Tobias N. Tingleaf SHERMAN SHERMAN JOHNNIE &
HOYT, LLP Attorneys for Plaintiff
Geraghty Jorgensen, John Fetters MILLS MEYERS SWARTLING P.S.
Attorneys for Defendant Alaska Airlines, Inc.
R. Mersereau Beth F. Plass MERSEREAU SHANNON LLP Attorneys
for Defendants Port of Portland & Erin Flinn
OPINION & ORDER
A Hernandez, United States District Judge.
Kurt Freitag brings this 42 U.S.C. § 1983 action against
Defendants Alaska Airlines ("Alaska"), the Port of
Portland, ("the Port"), Port Police Officer Erin
Flinn, and Does 1 and 2 who are identified only as Port
police employees. Plaintiff brings a Fourth Amendment
unlawful arrest claim and a First Amendment retaliation claim
against the Port and Flinn. He brings a state law false
arrest claim against all Defendants. He also brings a breach
of contract claim against Alaska. The claims are based on
Plaintiff's arrest at the Portland Airport on May 20,
2015, which occurred when he did not leave the secure area of
the airport terminal after losing his seat on an Alaska
flight. Alaska moves for summary judgment. The Port and Flinn
also move for summary judgment. In response to Alaska's
motion, Plaintiff concedes the breach of contract claim. Pl.
Resp. 39, ECF 28. I grant Alaska's motion as to the
breach of contract claim, I grant Alaska's motion as to
the false arrest claim, and I grant the Port Defendants'
motion as to all claims.
12, 2015, Plaintiff, or someone on his behalf, purchased a
round-trip Phoenix to Portland to Phoenix ticket on Alaska.
He flew to Portland on May 19, 2015 and had a return flight
for May 20, 2015. According to Ray Prentice, Alaska's
Director of Customer Advocacy, Plaintiff purchased a
coach-seat, upgrade-qualifying fare. Prentice Decl. ¶ 2,
ECF 26; see also id., Ex. A (copy of Plaintiff's
"Passenger Name Record" or "PNR" which
Prentice states shows the type of fare purchased by
Plaintiff). Prentice further states that as an elite MVP 75k
Gold customer, Plaintiff received an automatic first-class
upgrade for both flights. Prentice Decl. ¶ 2. Plaintiff
denies knowing that he had a first-class seat. Tingleaf
Decl., Ex. 1 ("Pl. Dep.") 85:19-86:12, ECF 29-1
(Plaintiff stating that he "can learn it if I'm
paying any attention. Sometimes I'm not.").
Alaska's Contract of Carriage, passengers must check in
at the ticket counter at least forty minutes before departure
and be at the departure gate at least thirty minutes before
departure. Beyer Decl., Ex. A at 27 (Rule 135AS), ECF 22-1 at
28. The Contract of Carriage allows Alaska to cancel a ticket
if a passenger fails to occupy a reserved space or fails to
comply with any term or condition of sale. Id. at
May 20, 2015 flight from Portland to Phoenix had a scheduled
departure time of 8:30 p.m. Fetters Decl., Ex. A ("Olson
Dep.") 61:2-22, 70:6-9, ECF 21-1; Prentice Decl.
¶ 3. Plaintiff's bag was checked at the Portland
airport ticket counter at 7:55 p.m., five minutes after the
forty-minute cutoff. Id.; see also id., Ex.
A at 5. Plaintiff asserts that he arrived at the Portland
airport one hour before the scheduled departure but he does
not dispute that he checked his bag only thirty-five minutes
before that time. Pl. Resp. 3-4.
asserts that because Plaintiff missed the forty-minute
cutoff, his complimentary first-class upgrade was released
and reissued to another elite customer on Alaska's
upgrade waitlist. Prentice Decl. ¶ 3. At the check-in
counter, Plaintiff was issued a "gate-service
document," allowing him to pass through Transportation
Security Administration (TSA) security, but unlike a boarding
pass, it did not contain a seat assignment. Id. If
Plaintiff arrived at the departure gate on time, he would
have been issued an available coach seat assignment at the
gate. Id. Plaintiff testified in deposition that
during the check-in process, nothing was said to him about
being late. Pl. Dep. 98:25-99:3. The ticketing agent at the
check-in counter gave Plaintiff a baggage claim tag with a
"V/S" on it. Prentice Decl., Ex. B. A
"V/S" tag indicates that a passenger may be
separated from his or her checked luggage if either fails to
make it to the aircraft in time. Prentice Decl. ¶ 4.
Plaintiff testified he knew nothing about the "V/S"
tag and the agent said nothing about possibly being separated
from his bag due to timing. Pl. Dep. 104:19-25. The ticketing
agent called the gate agents to tell them that Plaintiff was
being sent to the gate late. Olson Dep. 44:14-20.
testified in deposition that after clearing TSA security and
approaching the flight gate, he observed eight to ten people
in the boarding line. Fetters Decl., Ex. B ("Freitag
Dep.") 105:19-22, 106:25-107:2, ECF 21-1. Because he
prefers to be the last person to board, Plaintiff went to a
vendor to purchase newspapers and soft drinks. Id.
at 107:4-5, 107:19-20. He returned to the gate and there were
still a couple of people in line. Id. at
107:24-108:2. Plaintiff then "hung back a little bit and
let them complete the thing" before pulling his
"ticket" out of his pocket and making his way to
the boarding scanner. Id. at 108:3-6. According to
Alaska, Plaintiff scanned his gate-service document seventeen
minutes before departure, or at 8:13 p.m. Tingleaf Decl., Ex.
2 ("Olson Dep. - Pl.") 108:19-22, ECF 29-2.
Plaintiff had only the gate-service document without a seat
assignment, the scanner would not let him board. Olson Dep.
150:12-151:5; Pl. Dep. 114:23-115:2. According to Alaska,
Plaintiff was told that he lacked a seat assignment because
his first-class upgrade had been reassigned to another
passenger due to his late check-in. Tingleaf Decl., Ex. 3.
Plaintiff allegedly became "quite upset."
Id. Plaintiff testified that the gate agent did not
mention the "lost" first class ticket and did not
offer Plaintiff a coach seat. Pl. Dep. 120:25-121:6.
According to Plaintiff, the gate agent, and another gate
agent who joined the first agent, kept mentioning
"miles." Id. at 117:12-13, 118:12-14,
122:3. Plaintiff assumed that the flight was overbooked and
that the agents were going to offer him miles to be used for
a future flight. Id.
to the unidentified declarant gate agent's account of the
events, Plaintiff went to the counter to talk to the
declarant afer the scanner rejected Plaintiff's boarding
document. Tingleaf Decl., Ex. 3. Contrary to Plaintiff's
testimony, the gate counter agent states that he or she told
Plaintiff that his first class seat had been given to another
passenger. Id. Plaintiff was upset, stating that he
had reserved a seat two months prior, and stated that he had
checked in on time. Id. The gate agent offered
Plaintiff miles or money toward a future flight. Id.
Plaintiff was not interested. Id. He became
"quite upset" and began to "berate" the
gate counter agent. Id. (stating that Plaintiff said
something like "how can you treat someone like
this"). In his Response Memorandum Plaintiff asserts
that he did not yell at, threaten, or berate the gate counter
agent. Pl. Resp. 6 (citing Pl. Dep. 190, 195). In the cited
deposition testimony, Plaintiff states that in his exchange
with the gate individuals, he was not angry and did not raise
his voice. Pl. Dep. 190:4-14. He characterized his behavior
as "frustrated and confused, perplexed by the
situation." Id. at 190:14-19. He also denied
using swear words or vulgar or profane language. Id.
gate agent called a supervisor, Michelle Olson, to assist
with the situation. Olson Dep. 45:2-4 (stating that boarding
agent Laura Coleman called Olson up from the jetway). Olson
was at the bottom of the jetway for the flight and received
the agent's call twelve minutes before departure.
Id. at 33:25-34:1. Olson walked to the gate to speak
a customer service agent for Alaska. Tingleaf Decl., Ex. 5
("Cary Dep.") 14:13-18, ECF 29-5. She does not
recall much about the incident with Plaintiff on May 20,
2015. Id. at 15:14-23 (testifying that she
doesn't "necessarily recall the incident" but
she "was shown a few printouts that had my name on it
that maybe jogged a few memories, but I do not recall the
event."). What she does recall is Olson, Cary's
direct supervisor, coming to the gate because of an
escalating incident. Id. at 28:21-29:5.
testified at deposition that she had been told of an irate
passenger who wanted to speak with a supervisor. Olson Dep.
49:1-3. When Olson approached, there was no indication of
irate behavior and Plaintiff was standing and waiting quietly
for her. Id. at 48:14-22. Olson recognized Plaintiff
as someone who flies Alaska frequently and she used
Plaintiff's name and approached with a smile to
"diffuse anything that was happening." Id.
at 49:5-10; 45:16-23, 46:6-10. Olson explained to Plaintiff
that his first-class upgrade was released to another
passenger because of his late check-in at the ticket counter
and he could either accept a coach seat or a refund.
Id. at 38:6-39:6, 115:6-18, 120:4-21. According to
Olson, Plaintiff denied he was late and continued to demand a
first-class seat. Id. at 50:1-3, 53:25-54:1,
55:25-56:2, 87:14-15. At this point, Olson states, Plaintiff
was not shouting or throwing things but he nonetheless he was
not calm and was insisting that "this is my first class
seat," "I'm not getting on without my first
class seat." Id. at 55:3-9 (further stating
that Plaintiff was "not really in the mode to listen to
options"). Plaintiff did not want a coach seat.
Id. at 39:23-24. Olson testified that because the
plane was so close to its departure time, she had only a few
minutes to get Plaintiff onboard. Id. at 100:17-20.
She tried to appease him but was also trying to get the
flight out on time. Id. at 110:19-20. She offered
him any coach seat on the plane. Id. at 100:20-21.
Plaintiff did not take one but he eventually agreed to a
refund. Id. at 103:10-13.
to Olson, within three or four minutes of interacting with
Plaintiff, and while she was processing his refund request,
Plaintiff began to make inappropriate comments to her,
including that she should kill herself. Id. at
40:4-9 (testifying that Plaintiff repeatedly said he was not
sure how Olson could live her herself, how she could go home
at night and sleep, and that she should just go home and kill
herself); 124:7-15. Olson began to feel that the situation
was unsafe. Id. at 40:7-9. She knew that after she
completed processing his refund, Plaintiff would no longer be
a ticketed passenger and could not remain in the secure area
of the airport. Id. at 40:12-14,
103:14-104:5. Because she did not feel safe escorting
Plaintiff out of the secured area, she called the Port
police. Id. at 103:14-104:5, 138:17-24. She called
the non-emergency line and asked the Port police to escort
Plaintiff from the gate area. Id. at 129:5-11
(testifying that she called the non-emergency line when
everything was done with the refund and he needed an escort).
According to Olson, Plaintiff continued to "run on"
with dialogue as to Olson's "worthlessness and
need to kill herself" while waiting for the Port
police to arrive. Id. at 40:16-20. Plaintiff denies
that he called Olson names or threatened her in any way. Pl.
police officer Flinn received a call from dispatch at 8:22
p.m., reporting a disturbance at an Alaska boarding gate.
Fetters Decl, Ex. C ("Flinn Dep.") 17:17-18:7, ECF
21-2; see also Id. at 20:21-21:7 (Flinn received a
call at 8:22 of an incident with an irate male at Alaska
boarding gate number B1). She went to the area with Officers
Klein and Brown. Id. at 22:7-8. Flinn was the lead
officer. Id. at 23:13-18. When the officers arrived
on scene, they saw Plaintiff and Alaska personnel, all of
whom were "standing around." Id. at
24:8-13, 25:2-4. According to Flinn, Plaintiff "appeared
to be agitated with the situation[.]" Id. at
27:1-2. Flinn needed to investigate further to determine if
it was "more a customer service-type situation or
not." Id. at 27:3-5.
initially spoke with Olson. Id. at 24:21-23,
27:18-20. Flinn recalls Olson telling her that Plaintiff was
not going to be flying on the Phoenix flight and he was not
ticketed. Id. at 29:15-19. Olson told Flinn that
Plaintiff had previously been excluded from flying on Alaska
some years ago. Id. at 30:4-7; see also
Flinn Decl. ¶ 6, ECF 24 (stating that during her initial
conversation with Olson, Olson told her that she had dealt
with Plaintiff on previous occasions during which he had
become aggressive with Alaska employees and that he had been
previously excluded from flying on Alaska); Tingleaf Decl.,
Ex. 9, ECF 29-9 (Flinn's police report stating that Olson
told her that Plaintiff had previously been placed on a
"no fly" list for Alaska due to erratic behavior).
During deposition, Olson admitted that she was aware that
Plaintiff had previously been temporarily banned from flying
with Alaska but she did not actually know what caused the
ban. Olson Dep. - Pl. 129:12-132:12 (further explaining that
she made an assumption based on his being on the no-fly list
and stating that "we don't put somebody on that list
describing the immediate issue, Olson told Flinn that
Plaintiff arrived late for the flight, Alaska had offered him
a seat in coach, Plaintiff was not happy and had demanded his
first class seat, and that he had had erratic behavior. Flinn
Dep. 30:12-16; see also Id. at 31:6-12 (Olson told
Flinn that Plaintiff had arrived at the airport thirty-five
minutes before the flight departure time and had arrived to
the gate area eleven minutes before that time); Flinn Decl.
¶ 6 (Olson told Flinn that Plaintiff had checked in late
at the Alaska ticket counter, had arrived to gate B1 roughly
eleven minutes before the flight, was advised that his first
class seat had been given away because of late arrivals, that
accommodations had been offered to Plaintiff but he had
refused them and began calling Olson names, including telling
her she was worthless, and that as a result, Plaintiff had
become a non-ticketed passenger and was not boarding the
knew from Alaska that Plaintiff did not have a boarding pass.
Id. at 33:14:21. She testified in deposition that
when the airlines choose not to fly a passenger and remove
the boarding pass or the passenger's access to the
airlines's business, that means the person is no longer a
ticketed passenger. Id. at 34:11-15.
talking to Olson, Flinn spoke with Plaintiff. Id. at
43:8-9. According to Plaintiff, he was asked to place his
luggage down. Pl. Dep. 134:18-22. Flinn states that in her
initial contact with Plaintiff, he was agitated. Id.
at 43:12-14; see also Flinn Decl. ¶ 7 (when she
approached Plaintiff, Flinn explained why she had been
dispatched to the gate and he immediately became
argumentative). He was demanding to see all of the Alaska
employees' identifications. Id. at 13-15. Flinn
described Plaintiff as interrupting any kind of conversation
she was trying to have to tell him why she was there.
Id. at 43:21-25 (also explaining that he kept
referring back to Alaska and turning and speaking with them
in a louder and agitated tone). She stated: "He seemed
to be unreasonable at that point whereas he wasn't taking
any direction from anyone." Id. at 43:25-44:2.
Flinn testified that in her dealings with Plaintiff, he
"seemed very unreasonable and unwilling to listen to
anybody else's point of view," that he
"demanded things, and there was no real reasoning with
him." Id. at 31:2-5.
to Flinn, Plaintiff was not taking an aggressive stance or
screaming at the top of his lungs, but he was raising his
voice. Id. at 44:3:9. Plaintiff "wanted his
first class seat." Id. at 44:20. He made
statements such as they are "refusing to fly me. They
are worthless. I want all their information. I'm filing a
complaint." Id. at 45:10-15. Flinn tried to
walk Plaintiff through some of the steps for filing a
complaint but Plaintiff was "unwilling to hear anybody
else at that point." Id. at 45:16-19. Plaintiff
denies stating that he was going to file a complaint. Pl.
Dep. 197:9-12. He states that he was unable to tell his side
of the story to Flinn. Id. at 139:15-140:7
(Plaintiff deposition testimony to the effect of what, in his
opinion, is good policing which "didn't happen"
and stating that "[w]e never got to anybody's story.
. . . and it went "very, very, very rapidly . . . to my
asked Plaintiff for his identification. Flinn Dep. at
43:15-16. Plaintiff initially refused. Id. at
43:16-17; see also Pl. Dep. 134:23-24, 135:8-10
(stating that he found the request to show his identification
"a little aggravating" and thought the request was
"inappropriate"). Plaintiff asked Flinn for her
identification. Id. at 46:16-21. Flinn's
security badge is pinned to her uniform and she responded to
Plaintiff by pointing to her chest and her badge and stating
"[i]t's right here." Id. at
46:24-47:2. The badge shows Flinn's full name.
Id. at 47:7-8. Plaintiff remained argumentative
about the issue. Id. at 47:8-9. Plaintiff then took
out his identification and put it up to his chest instead of
handing it to Flinn so she could write down his information.
Id. at 47:10-13. She normally does not get close
enough to a person who is agitated to have been able to read
the information on Plaintiff's identification but she had
cover officers there and felt okay with obtaining
Plaintiff's information from the identification Plaintiff
was holding to his chest. Id. at 47:15-22. Thus, in
response to Plaintiff's action, Flinn said
"[t]hat's fine." Id. at 47:15-16.
Plaintiff testified that he ...