United States District Court, D. Oregon, Medford Division
D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Michael Anthony Malara, appearing as a self-represented
party, brings this cause of action against the County of
Josephine, Oregon, ("The County") and Josephine
County Sheriffs Deputy Kenneth Lehman ("Deputy
Lehman"), (collectively, "defendants"). Full
consent to magistrate jurisdiction was entered on December
17, 2017. The case comes before the Court on a motion for
summary judgment (#40) submitted by both defendants. The
Court sent Plaintiff a Pro Se Summary Judgment Advice Letter
on July 11, 2018, and on December 18, 2018 the Court held an
Oral Argument Hearing on the motion. For the reasons below,
the defendants' motion (#40) is GRANTED and this case is
judgment shall be granted when the record shows that there is
no genuine dispute as to any material of fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). The moving party has the initial
burden of showing that no genuine issue of material fact
exists. Celotex Corp, v. Catrett, 477 U.S. 317, 323
(1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th
Cir. 2001) (en banc). The court cannot weigh the evidence or
determine the truth but may only determine whether there is a
genuine issue of fact. Playboy Enters., Inc. v.
Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue of
fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248.
properly supported motion for summary judgment is made, the
burden shifts to the opposing party to set forth specific
facts showing that there is a genuine issue for trial.
Id. at 250. Conclusory allegations, unsupported by
factual material, are insufficient to defeat a motion for
summary judgment. Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989). Instead, the opposing party must, by
affidavit or as otherwise provided by Rule 56, designate
specific facts which show there is a genuine issue for trial.
Devereaux, 263 F.3d at 1076. In assessing whether a
party has met its burden, the court views the evidence in the
light most favorable to the non-moving party. Allen v.
City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995).
30, 2015, Jon Dempsey contacted the Josephine County Sheriffs
Department and reported that Plaintiff Malara stole his
vehicle. Mr. Dempsey completed an affidavit Stolen Vehicle
Report Form on July 1, 2015 for a white 2000 Ford Explorer,
The vehicle was entered into the Josephine County computer
system on that date.
13, 2015, Deputy Lehman conducted a traffic stop when he
observed a white Ford Explorer hauling a trailer that was
dropping debris onto the road. Due to the trailer behind the
vehicle, the license plate was obstructed, and Deputy Lehman
could not call the vehicle in to dispatch correctly. Once the
Explorer came to a stop, Deputy Lehman got out of his vehicle
to read the correct license plate. He received a report that
it was a stolen vehicle.
point, Deputy Lehman ordered all occupants out of the
Explorer. He handcuffed the driver, Plaintiff Malara, and
read him his Miranda rights. Plaintiff remained handcuffed
while Deputy Lehman interviewed Plaintiff and his two
passengers. Regarding the Explorer and his possession of it,
Plaintiff told Deputy Lehman that he purchased the Explorer
from someone he knew as J.D. Plaintiff provided a bill of
sale for the vehicle, but the bill was not in his name.
Instead, the bill of sale named Jon Dempsey as the purchaser
of the vehicle. Plaintiff did not provide an explanation for
Lehman noted some inconsistencies between Plaintiffs
explanation of his purchase of the vehicle and the version as
told by his passenger, Nicholas Blair, including the fact
that Mr. Blair was present during transaction. According to
Deputy Lehman's deposition, the contradictions in their
stories undermined the credibility of both statements.
First Amended Complaint (#17), Plaintiff asserts ten claims
for relief, including multiple violations of the
4th Amendment, brought under section 1983: three
claims for unreasonable search and seizure and one excessive
force claim against Deputy Lehmen, and two Monell
claims against Josephine County. Plaintiff also asserts four
state law claims against both defendants - false arrest,
assault and battery, negligence, and conversion. On the face
of his complaint, Plaintiff alleges a number of facts to
support his claims, including that he was subjected to field
sobriety tests and ridiculed for being unable to perform
them, that he was placed in handcuffs that were too tight and
caused significant pain, that he was strip-searched and
subjected to a breathalyzer test at the jail intake center,
and that the Sheriffs Department refused to release his
vehicle and property after his case was dismissed. However,
in response to defendants' motion for summary judgment,
Plaintiff has not offered any substantive evidence in support
of the facts alleged, other than a signed statement
questioning some of the evidence submitted by defendants, and
uncertified copies of his driver's license and
registration for the vehicle at issue, filed with the Oregon
reviewing all of the evidence in the record, and construing
any inferences in favor of the Plaintiff, the Court can find
no dispute of material fact that would ...