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Cederberg v. Washington County Consolidated Communications Agency

United States District Court, D. Oregon, Portland Division

July 8, 2019

NICHOLAS CEDERBERG and HAYLEY SHELTON, Plaintiffs,
v.
WASHINGTON COUNTY CONSOLIDATED COMMUNICATIONS AGENCY; KELLY DUTRA; DENNIS DOYLE; MARTY WINE; DON BOHN; MIKE DUYCK; MICHAEL KINKADE; PAULA PETERSON; WASHINGTON COUNTY; PAT GARRETT; ERIC STONEBERG; TIMOTHY DAVID ZIEGLER, M.D.; NORTHWEST ACUTE CARE SPECIALISTS, P.C.; LEGACY HEALTH; LEGACY MERIDIAN PARK HOSPITAL; MONIQUE ROBERTS; BRECK PARK-BURSON; KINSEY COYNE; STEPHANIE LEE; JESSICA MCKENZIE; KATHRYN FISCHER; ALLISON ORSBORN; JASON MARCEAU; MELISSA PROCACCINI; ELIZABETH SMITH; TONY A. COWGER; and JON NOLAN, Defendants.

          David D. Park Elliott & Park Nelson R. Hall Bennett, Hartman, Morris & Kaplan, LLP Attorneys for Plaintiffs

          David C. Lewis Steven A. Kraemer Kraemer & Lewis Attorneys for Defendants Washington County Consolidated Communications Agency, Kelly Dutra, Dennis Doyle, Marty Wine, Don Bohn, Mike Duyck, Michael Kinkade, Paula Peterson, Monique Roberts, Breck Park-Burson, Kinsey Coyne, Stephanie Lee, Jessica McKenzie, Kathryn Fisher, Allison Osborn, Jason Marceau, Melissa Procacinni, Elizabeth Smith, Tony A. Cowger, and Jon Nolan

          Kimberly Stuart Christopher A. Gilmore Office of the Washington County Attorneys for Defendants Washington County, Pat Garrett, and Eric Stoneberg

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         This matter comes before the Court on the following Motions: (1) the Motion to Dismiss Plaintiffs' Amended Complaint [ECF 27] filed by Defendants Washington County Consolidated Communications Agency (“WCCCA”), Kelly Dutra, Dennis Doyle, Marty Wine, Don Bohn, Mike Duyck, Michael Kinkade, Paula Peterson, Monique Roberts, Breck Park-Burson, Kinsey Coyne, Stephanie Lee, Jessica McKenzie, Kathryn Fisher, Allison Osborn, Jason Marceau, Melissa Procacinni, Elizabeth Smith, Tony A. Cowger, and Jon Nolan (collectively the “WCCCA Defendants”); and (2) the Motion to Dismiss and Motion to Strike [ECF 34] filed by Defendants Washington County, Pat Garrett, and Eric Stoneberg (collectively the “Washington County Defendants”).

         For the reasons that follow, the Court GRANTS the WCCCA Defendants' Motion to Dismiss [ECF 27] in part insofar as it DISMISSES Plaintiffs' Claim One and the portion of Claim Four that is derivative of Claim One without prejudice and with leave to amend. The Court DENIES the WCCCA Defendants' Motion in part to the extent that they seek dismissal of Plaintiffs' claims with prejudice and request the Court consider matters outside the Amended Complaint. In addition, the Court GRANTS the Washington County Defendants' Motion to Dismiss and Motion to Strike [ECF 34] and DISMISSES Plaintiffs' Claims Two, Three, and the portion of Claim Four that is derivative of Claims Two and Three with prejudice.

         BACKGROUND

         The following facts are taken from Plaintiffs' Amended Complaint [ECF 5] and are assumed to be true at this early stage of the proceedings:

         Plaintiff Nicholas Cederberg served as a trooper with the Oregon State Police. Plaintiff Hayley Shelton is married to Cederberg. While on duty on the night of December 25, 2016, Plaintiff Cederberg was shot 12 times by James Tylka, an individual whom law enforcement was pursuing on suspicion of shooting and killing his estranged wife, Katelyn Tylka, earlier that evening.[1]

         The Washington County Sheriff's Office, led by Defendant Pat Garrett, previously encountered Tylka on November 29, 2016, after Kaetlyn Tylka called 9-1-1 to report that Tylka had threatened to kill her. Defendant Eric Stoneberg, a Washington County Sheriff's Deputy, conducted an in-person interview with Kaetlyn Tylka. During the course of his investigation Stoneberg determined he had probable cause to arrest Tylka for menacing. Stoneberg located Tylka and interviewed him. During the course of that interview Tylka admitted making the threats to Kaetlyn Tylka. Stoneberg, however, did not arrest Tylka even though Oregon Revised Statute § 133.055(2) provides “when a peace officer responds to an incident of domestic disturbance and has probable cause . . . to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.”

         On November 30, 2016, Tylka attempted suicide by intentionally overdosing on insulin. When police and emergency medical technicians responded to Tylka's home that evening Tylka was “barely conscious” and Katelyn Tylka told police and EMTs that Tylka had been depressed, intentionally tried to overdose on insulin, had recently purchased knives with which he intended to kill Katelyn Tylka and their child, and that police had been called the previous day as a result of Tylka's threats to his wife and child. Am. Compl. ¶ 56. While Tylka was being transported to Defendant Legacy Meridian Park Hospital, a King City police officer seized Tylka's knives and faxed a “Peace Officer Hold” (“POH”) form to the hospital. Id. ¶ 57. Notwithstanding the POH, Defendant Timothy David Ziegler, M.D., discharged Tylka from the hospital after treating him for the insulin overdose and did not admit Tylka to receive mental-health treatment or seek to have Tylka admitted to another facility to receive emergency mental-health care.

         In his capacity with OSP, Cederberg was assigned to patrol in Washington County on December 25, 2016. WCCCA provides dispatch services for law enforcement in Washington County. WCCCA uses three channels for dispatch - South Cities (“SC”), Sheriff's Office One (“SO1”), and Sheriff's Office Two (“SO2”). OSP communications equipment was not capable of monitoring the WCCCA radio dispatch communications. Accordingly, WCCCA issued “pack sets” to OSP troopers assigned to Washington County. OSP troopers using those pack sets, however, could only monitor a single WCCCA channel at a time.

         At approximately 10:15 p.m. on December 25, 2016, Tylka shot and killed Kaetlyn Tylka. At approximately 10:35 p.m., Defendant Breck Park-Burson, the dispatcher assigned to SC, issued a county-wide request for all law enforcement to attempt to locate (“ATL”) a white Mitsubishi vehicle driven by Tylka. That ATL included an advisory that Tylka was armed with a handgun. Approximately three minutes later, Defendants Jessica McKenzie and Allison Orsborn broadcast the ATL on SO1 and SO2, respectively, but Plaintiffs allege neither dispatcher mentioned that Tylka was suspected of murder, that he was armed with a handgun, or that he may have been suicidal.

         At 10:38 p.m. Cederberg heard the ATL broadcast on SO1 and, approximately two minutes later, informed WCCCA on SO1 that he was active on the ATL. At approximately 10:40 p.m. WCCCA broadcast on S.C. that Tylka was a homicide suspect and that he was suicidal. Cederberg did not receive that information because he was only monitoring SO1.

         At approximately 10:41 p.m., an OSP dispatcher called WCCCA and spoke with Defendant Kathryn Fischer to advise WCCCA that Cederberg was active on the ATL. Fischer told OSP Dispatch that the ATL was for a homicide suspect but did not inform the OSP dispatcher that James Tylka was armed or suicidal.

         At approximately 10:49 p.m. Cederberg notified WCCCA that he had located Tylka's vehicle and was in pursuit. Plaintiff alleges that “[a]t and after 10:49” he made tactical decisions regarding his pursuit of Tylka, including that he would activate his lights and siren; follow Tylka without a cover officer; and pursue Tylka down a narrow, dark, and relatively isolated rural dead-end road. Plaintiffs allege WCCCA failed to inform Cedeberg that Tylka was armed and suicidal before he decided to take these actions. At approximately 10:52 p.m., Tylka rammed his vehicle into Cederberg's patrol car while simultaneously initiating a gun battle during which Tylka shot Cederberg 12 times. Cederberg survived the shooting, but was seriously injured.

         Plaintiffs bring four claims that are relevant to the WCCCA Defendants and the Washington County Defendants. In Claim One Cederberg brings a claim against the WCCCA Defendants under 42 U.S.C. § 1983 on the basis that the WCCCA Defendants violated substantive due process under the state-created danger doctrine when they sought assistance with locating and apprehending Tylka, but did not provide Cederberg sufficient information to do so safely.[2] In Claim Two Cederberg brings a procedural due-process claim under § 1983 against Defendant Stoneberg on the basis that Stoneberg deprived Plaintiff of a protected liberty interest without due process when Stoneberg failed to arrest Tylka on November 29, 2016, notwithstanding a duty to do so under § 133.055(2). In Claim Three Plaintiff Cederberg brings a procedural due-process claim against Defendants Pat Garrett and Washington County under a Monell theory on the basis that their failure to train Stoneberg on his duties under § 133.055(2) was the moving force behind Cederberg's injuries. Finally, in Claim Four Plaintiff Shelton brings a claim under § 1983 for deprivation of her right to family association that is derivative of Claims One, Two, and Three.[3]

         On January 18, 2019, the WCCCA Defendants filed their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) in which they seek dismissal of Cederberg's Claim One and the portion of Shelton's Claim Four that is derivative of Claim One. The Washington County Defendants filed their Motion to Dismiss on February 1, 2019, in which they seek dismissal of Cederberg's Claims Two and Three and that portion of Shelton's Claim Four that is derivative of Claims Two and Three pursuant to Rule 12(b)(6). In their Motion the Washington County Defendants alternatively move the Court to strike paragraphs 51 and 52 of Plaintiffs' Amended Complaint pursuant to Rule 12(f) on the basis that the allegations in those paragraphs are irrelevant to this case.

         STANDARDS

         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). However, the court need not accept unsupported conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations”) (internal quotation marks and alterations omitted). To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[, ]” meaning “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

         DISCUSSION

         As noted, the WCCCA Defendants and the Washington County Defendants moved to dismiss Plaintiffs' Amended Complaint for failure to state a claim under Rule 12(b)(6).

         I. WCCCA Defendants' Motion to Dismiss

         The WCCCA Defendants move to dismiss Cederberg's Claim One and that portion of Shelton's Claim Four that is derivative of Claim One on the basis that (1) the WCCCA dispatchers, in fact, informed Cederberg that Tylka was armed and that he was a homicide suspect notwithstanding the allegations in Plaintiffs' Amended Complaint to the contrary; (2) in any event, Cederberg has failed to adequately plead affirmative state action that created a danger to him; and (3) Cederberg's Monell theory against WCCCA and the Policy-Maker WCCCA Defendants fails because Plaintiffs do not allege a cognizable underlying constitutional violation or facts sufficient to establish any actionable policy, custom, or failure to train. Finally, the WCCCA Defendants contend the relevant portion of Shelton's Claim Four fails because it is derivative of Cederberg's Claim Two.

         A. Consideration of Materials Outside the Complaint

         As a threshold matter, the WCCCA Defendants assert the Court should consider two sets of documents outside the Amended Complaint when deciding their Motion: (1) transcripts of dispatch communications and (2) a transcript of an interview investigators conducted with Cederberg after the incident. The WCCCA Defendants contend the dispatch transcripts are integral to the Amended Complaint and, therefore, the Court should consider them as though they were part of the Amended Complaint when deciding the WCCCA Defendants' Motion. With respect to the interview transcript, the WCCCA Defendants assert the Court should take judicial notice of it as a public record.

         “Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). On a motion to dismiss the court may “consider materials incorporated into the complaint or matters of public record.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).

         1. Incorporation by Reference of the Dispatch Transcripts

         The incorporation-by-reference doctrine is intended to “prevent[] plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken-or doom-their claims.” Khoja, 899 F.3d at 1002. The court may consider a document incorporated by reference into the complaint when the complaint “‘refers extensively to the document or the document forms the basis of the plaintiff's claim.'” Id. (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)). The “mere mention of the existence of a document, ” however, is insufficient to justify incorporation by reference. Coto Settlement, 593 F.3d at 1038. Although a document is properly considered on a Rule 12(b)(6) motion in the “rare instances when assessing the sufficiency of a claim requires that the document at issue be reviewed, ” a document should not be considered if it “merely creates a defense to the well-pled allegations in the complaint.” Khoja, 899 F.3d at 1002. Thus, “[a]lthough the incorporation-by-reference doctrine is designed to prevent artful pleading by plaintiffs, the doctrine is not a tool for defendants to short-circuit the resolution of a well-pleaded claim.” Id. at 1003.

         Moreover, “what inferences a court may draw from an incorporated document should also be approached with caution.” Id. Although “a court ‘may assume [an incorporated document's] contents are true for purposes of a motion to dismiss under Rule 12(b)(6), '” the court may not “assume the truth of an incorporated document if such assumptions only serve to dispute facts stated in a well-pleaded complaint.” Id. (quoting Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).

         Plaintiffs do not contest the authenticity of the dispatch transcripts submitted by the WCCCA Defendants or object to the Court's consideration of those transcripts even though they are not part of the Amended Complaint. To the contrary, in their Response [ECF 38] Plaintiffs supplement the WCCCA Defendants' transcripts with additional dispatch transcripts. See Decl. of David Park [ECF 39].

         Nonetheless, the dispatch transcripts that the parties have provided to the Court are heavily excerpted and/or redacted, disorganized, and unclear as to which radio channel(s) from which they are drawn. See Decl. of Raechelle Ottosen [ECF 28] Exs. 2, 3; Park Decl. Ex. 4; Second Ottosen Decl. [ECF 41] Exs. A, B. For example, the Park and Second Ottosen Declarations attach transcript excerpts from a channel identified as “SC1.” See Park Decl. Ex. 4; Second Ottosen Decl. Ex. B. The parties, however, do not refer to an “SC1” channel in either the Amended Complaint or in their briefing and do not explain this discrepancy. Although at times the parties seem to indicate the “SC1” channel is the same as the “SC” channel, the Court observes that the “SC1” transcript excerpt attached to the Park Declaration contains statements from Cederberg, which could seemingly contradict Plaintiffs' allegations that Cederberg was only active on SO1. See Am Compl. ¶¶ 26(k), 32, 34 (indicating Cederberg could only monitor and transmit on one channel at a time and alleging Cederberg was using SO1); Pls.' Resp. [ECF 38], at 5 (“Because plaintiff was monitoring and transmitting on channel SO1, he is unaware that the vehicle is operated by a homicide suspect that is armed and suicidal.”).

         The distinctions between the channels are critical in this case because Plaintiffs' claims rely on the proposition that the WCCCA Defendants did not timely provide important officer-safety information to Cederberg before and during his pursuit of Tylka. Because the transcripts in the form submitted by the parties do not make clear (1) what information was conveyed on which channel and (2) when that information was conveyed, the Court would have to make impermissibly uncertain inferences from the transcripts to rely on the factual content therein. See Khoja, 899 F.3d at 1003 (“[W]hat inferences a court may draw from an incorporated document should also be approached with caution.”). Accordingly, the transcripts are insufficiently reliable to be considered at this stage of the proceedings.

         In addition, although the parties agree that the Court should consider the transcripts, the Court nonetheless doubts that the transcripts meet the legal requirements to be considered incorporated into the Amended Complaint. Of note, the transcripts are not quoted or mentioned in the Amended Complaint, and although Plaintiffs rely on the substance of the dispatch communications in their claims, the Amended Complaint does not include any verbatim excerpts of those communications. The transcripts are, at most, evidence that either supports (as Plaintiffs contend) or contradicts (as the WCCCA Defendants contend) the allegations in the Amended Complaint. Such documents are ordinarily inappropriate for consideration on a Rule 12(b)(6) motion. Khoja, 899 F.3d at 1002. Accordingly, even if the transcripts were presented to the Court in a clear and reliable manner, the Court would be reluctant to consider them at this early stage of the proceedings.

         On this record, therefore, the Court declines to consider the transcripts of the dispatch communications attached to the parties' briefs.

         2. Transcript of Post-Incident Interview

         The WCCCA Defendants also contend the Court should take judicial notice of the transcript of an interview between Cederberg and investigators after the incident. The WCCCA Defendants contend that transcript is subject to judicial notice because it is a public record. In particular, the WCCCA Defendants rely on the following statements by Cederberg from the transcript:

Okay, I responded to a murder suspect who had fled in a vehicle, um, I knew the vehicle description, um, and that there was a male involved. I came into contact with that vehicle, um, outside Sherwood Oregon. Immediately a pursuit ensued where the suspect shot multiple rounds at me in my patrol car. Um, that came to a dead end road where I had stopped and the suspect, uh, began driving directly towards me and felt that due to everything I knew at the time that my life was in danger, um, I decided ...

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