United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
Judge Jolie A. Russo filed a Findings and Recommendation (ECF
No. 77), and the matter is now before this court.
See 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72.
Plaintiff and Defendants filed objections to the Findings and
Recommendation, and I have reviewed the file of this case
de novo. See 28 U.S.C. § 636(b)(1)(c);
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Upon review, Magistrate Judge Russo's Findings and
Recommendation (ECF No. 77) is adopted in part; with the
notable exception that defendant Davis' motion for
summary judgment is denied.
a tenant in an eviction dispute, alleges violations of his
Fourth and Fourteenth Amendment rights, as well as a state
law claim for unlawful ouster. He moves for partial summary
judgment against defendant Davis, the Chief of Police for the
City of Powers, on the federal claims. He moves for summary
judgment against defendants Denyce Shorb, Michael Maffei, and
Harvey Maffei on his unlawful ouster claim.
along with defendant Michael Maffei, moves for summary
judgment as to all claims against them.
Denyce Shorb and Harvey Maffei, who proceed pro se
in this litigation, did not file any opposition to
plaintiff's motion for summary judgment, but did file
objections to the Findings and Recommendation.
alleges that defendant Davis and Michael Maffei violated his
Fourth Amendment right to be free from unlawful searches and
seizures. He alleges that on July 11, 2016, without notice or
court order, Davis, acting in his capacity as the City of
Powers Chief of Police, ordered Clark trespassed and forced
him out of his rental home under threat of arrest. Plaintiff
lived in a dwelling pursuant to a written lease agreement
with defendant Shorb. Decl. Niese Ex. 7, ECF No. 51-7.
the 4th amendment, a person is protected from unreasonable
government intrusion if they have a subjective expectation of
privacy, and society accepts that expectation of privacy as
reasonable. See United States v. Shryok, 342 F.3d
948, 978 (9th Cir. 2003). To state a 4th amendment claim
under § 1983, plaintiff must show that an officer
entered his residence without a warrant, probable cause,
exigent circumstances, or consent. Williams v. Cty. of
Alameda, 26 F.Supp.3d 925, 937 (N.D. Cal. 2014).
argue that there could be no reasonable expectation of
privacy, because the dwelling itself was not habitable under
Oregon law and because the dwelling lacked a
certificate of occupancy.
Residential Landlord and Tenant Act (ORLTA) was enacted to
provide tenants with rights and protections, and to place
certain responsibilities on the landlord to ensure that a
dwelling unit is habitable. When a dwelling is “unsafe
or unfit to occupy, ” the law does not diminish a
tenant's expectation of privacy. The law simply provides
the tenant with a variety of remedies, including protections
related to tenant's right to continue occupancy. For
example, a landlord is prohibited from retaliating by
terminating a tenancy after the tenant has complained about a
violation of a “building, health or housing code
materially affecting health or safety.” Or. Rev. Stat.
regards to actions by a government actor, the ORLTA
implicitly provides for a tenant's continued right to
occupy the dwelling. Where a dwelling is uninhabitable, a
“government agency [can post the] dwelling unit as
unsafe and unlawful to occupy due to existence of conditions
that violate state or local law and materially affect health
or safety. . .” Or. Rev. Stat. 90.380(2)(a).
‘“[P]osted” means that a governmental
agency has attached a copy of the agency's written
determination in a secure manner to the main entrance of the
dwelling unit or to the premises or building of which the
dwelling unit is a part.' Or. Rev. Stat. 90.380(1). Even
after a government agency has posted, the ORLTA does not
exempt a landlord or government agency from complying with
Or. Rev. Stat. 105.105 which states that “No person
shall enter upon any land, tenement or other real property
unless the right of entry is given by law. . .”
natural conclusion is that the habitability or
un-inhabitability of a dwelling under state and local law
does not diminish a tenant's reasonable expectation of
privacy from government intrusion, nor does it exempt the
government from its limitations under the 4th Amendment.
similar reasons, Plaintiff's 14th Amendment claim also
survives summary judgment. Even where a dwelling is
uninhabitable, state law provides for due process that must
be followed before a tenant can be evicted or ousted. Because
the habitability or un-inhabitability of a dwelling unit does
not diminish a tenant's legitimate protectable property
interest, Plaintiff has sufficiently pled a legitimate
protectable property interest in his right to ...