Opinion
Case No. 02-104-KI
June 3, 2004
Elden Rosenthal and Theodore F. Sumner, Rosenthal Greene, P.C., Portland, Oregon, for Plaintiffs
Lance Cole Kirk, Fairview, Oregon, for Pro Se Defendant
Robert E. Franz, Jr. and Jason M. Montgomery, Law Office of Robert Franz, Jr., Springfield, Oregon, for Defendants
OPINION
Plaintiff John Roe brings this action against the City of The Dalles, Jay Waterbury, the Chief of Police of the City of The Dalles, and Lance Kirk, a former police officer, arising out of alleged physical and sexual abuse by defendant Kirk. Plaintiff asserts a civil rights claim pursuant to 42 U.S.C. § 1983 and a negligence claim against all defendants. Before the court are defendants the City of The Dalles and Waterbury's motion to dismiss (#55) and motion for summary judgment (#71). For the following reasons, the motion to dismiss is granted and the motion for summary judgment is granted in part and denied in part.
FACTS
On May 25, 1999, plaintiff was ordered committed to a Youth Corrections Facility and placed in the legal custody of the Oregon Youth Authority. He was then released from the custody of the Oregon Youth Authority in mid or early November, 2000.
Within a matter of days following his release, plaintiff began talking with defendant Kirk, who was a police officer for the City of The Dalles at the time. Roe and Kirk met with each other and began playing video games and lifting weights together.
On several occasions, plaintiff drank alcohol at Kirk's house. On one of these occasions, Kirk placed Roe's feet on his lap and began rubbing them.
At some point between plaintiff's release and December 22 or 23, 2000, Roe and Kirk traveled to Portland together to pick up a motorcycle.
On another occasion, Roe, while at Kirk's residence, communicated with a woman via the internet. Roe exchanged photographs with the woman over the internet, including pictures of himself taken by Kirk. In one of the photos, Roe was unclothed.
Roe testified in his deposition that he was provided alcohol by Kirk and that he was sexually assaulted by Kirk at Kirk's residence within a day or two of Christmas Eve, 2000. Roe also testified that he had no further contact with Kirk after the incident.
On January 9, 2001, Chief Waterbury issued a written warning to defendant Kirk, based on reports that Kirk had served alcohol to Roe.
On April 16, 2001, Chief Waterbury spoke with plaintiff's mother regarding the allegations against Kirk. Plaintiff's mother informed Chief Waterbury that Kirk had supplied alcohol to plaintiff on several occasions and that Kirk had taken pictures of her son without his clothes on.
On April 18, 2001, Chief Waterbury interviewed Kirk regarding the allegations. Chief Waterbury suspended Kirk the same day. Afterwards, The Dalles Police Department commenced an internal investigation of Kirk based on the allegations against him.
On April 25, 2001, after learning from Chief Waterbury that he would be terminated, Kirk resigned from his position with The Dalles Police Department.
On July 17, 2002, Kirk pleaded guilty to the crimes of Harassment, Sex Abuse III, and Official Misconduct for his conduct toward Roe.
In addition to the events surrounding the alleged abuse of plaintiff Roe, The Dalles Police Department has had several other incidents involving officers giving alcohol to minors and incidents of sexual misconduct by its officers. Throughout the 1990s, officials within The Dalles Police Department were aware of the fact that several officers were spending significant amounts of time alone with minors and that the officers had allowed certain minors to become part of their personal lives. The Dalles Police Department received complaints from parents during this time period.
Several police officers, including defendant Kirk, were involved in the Explorer Scouts Program, which was run jointly by several entities including the City of The Dalles through The Dalles Police Department and the Boy Scouts of America. Through the Explorer Scouts Program, Scouts learned about law enforcement. Plaintiff Roe was not an Explorer Scout.
In 1992 or 1993, the Police Department learned of inappropriate sexual contact by police officer David Webb with a minor female Explorer Scout. Webb's employment was terminated on April 6, 1993. He later pleaded guilty and was convicted of Attempted Contributing to the Sexual Delinquency of a Minor.
In 1995, The Dalles Police Sergeant James Tannehill initiated a relationship with "T.R.," a minor male Explorer Scout. Sergeant Tannehill gave T.R. alcohol and ultimately had sexual relations with him. The relationship continued until some time in 1996 or early 1997. Tannehill pleaded guilty and was convicted of child sexual abuse charges.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied. 528 U.S. 375 (1999).DISCUSSION
I. Defendants' Motions to Strike
Defendants move to strike much of plaintiff's evidence submitted in the form of declarations and deposition excerpts in opposition to the motion for summary judgment. Defendants argue that many of the statements are hearsay or are irrelevant. Because I do not rely on many of the paragraphs of testimony that defendants object to, those particular objections are moot and I will not rule on them.
To the extent that I rely on any of the alleged hearsay statements at issue, I deny the motion to strike because the statements were offered to show knowledge rather than the truth of the matter asserted.
With respect to the "expert" testimony of John Stratford, I deny the motion to strike as moot because I do not rely on his testimony. However, defendants have leave to raise in their pretrial materials their remaining objections regarding the late disclosure of Stratford as an expert and the admissibility of his testimony.
I also decline to rule on the individual paragraphs of testimony which defendants contend are not relevant. If I included the facts in the discussion above, I consider the facts relevant to the issues before me or necessary as background information. With respect to relevance, however, I note that significant issues may need to be decided prior to trial. I suggest that should plaintiff seek to introduce all of the evidence at trial on which he relies in opposition to summary judgment-including evidence from separate but arguably related civil and criminal cases-the court will need to determine whether potential prejudice outweighs the probative value of certain evidence, as well as address other issues related to potential jury confusion. Since I do not rely on much of plaintiff's evidence, I need not yet make these rulings.
II. Section 1983 Claims
Plaintiff brings a claim pursuant to 42 U.S.C. § 1983 against all three defendants for violation of his constitutional rights. Plaintiff alleges he was deprived of his right to be free from offensive bodily contact and from offensive sexual contact, deprived of his right to privacy, and deprived of his right to bodily integrity. The parties agree that this claim is properly analyzed under the substantive due process guarantee of the Fourteenth Amendment. See Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (holding that a claim by a plaintiff, who was not a criminal suspect, alleging rape by a police officer was properly viewed as asserting a violation of the substantive due process right to bodily integrity under the Fourteenth Amendment).
A municipality cannot be liable under a respondeat superior theory for the acts of its employees under 42 U.S.C. § 1983. Gibson v. County of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002). It is only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Department of Social Svcs. of New York City, 436 U.S. 658, 694 (1978). A plaintiff may establish local governmental liability by showing that: (1) a governmental employee committed the alleged constitutional violation pursuant to a formal governmental policy or a "longstanding practice or custom which constitutes the `standard operating procedure' of the local governmental entity"; (2) the individual who committed the constitutional tort was an official with "`final policy-making authority' and that the challenged action itself thus constituted an act of official governmental policy"; or (3) "an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it."Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992), cert denied, 510 U.S. 932 (1993) (internal citations omitted).
A supervisor may be liable under section 1983 if a plaintiff can establish three elements:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) that there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Randal v. Prince George's County Md., 302 F.3d 188, 206 (4th Cir. 2002) (internal quotations omitted).
Plaintiff contends that the City had an informal custom or practice of disregarding complaints of its police officers engaging in inappropriate behavior with minors. I acknowledge the City's argument that Webb, Tannehill, and Kirk were all disciplined and ultimately lost their jobs because of their conduct. However, I find that significant questions of fact exist as to the timing of these incidents, and specifically, when and if policy level officials gained knowledge of alcohol and sex abuse that appeared prevalent in the police officers' interactions with minors. Evidence of the officials' knowledge of any specific threat to Roe is quite slim, but I cannot say that no reasonable jury would find based on all of the evidence, including evidence of reports of similar misconduct of other officers around the same time, that the City and Waterbury had knowledge or acted with the requisite deliberate indifference toward Roe. Plaintiff may establish liability by showing that through omissions the City is responsible for the alleged constitutional violations. Gibson, 290 F.3d at 1186. This will be a heavy burden for plaintiff because he must show that the City's deliberate indifference led to its omissions and that the omissions caused the employee to commit the constitutional violation. Id.: however, I am not prepared to rule on a motion for summary judgment that plaintiff will be unable to carry this burden. Defendants' motion for summary judgment against the section 1983 claim is denied.
III. Negligence Claim
Defendants the City of The Dalles and Waterbury move to dismiss plaintiff Roe's common law negligence claim, which is generally covered by the Oregon Tort Claims Act ("OTCA"). Defendants argue that plaintiff's claim should be dismissed for failure to comply with the OTCA's requirement that notice be given within 180 days of plaintiff's injury. In addition to providing notice, plaintiff was required to plead and prove such notice. Defendants argue that because notice was not given, pleaded or proven, the negligence claim should be dismissed.
Plaintiff concedes that he did not deliver or plead the 180-day notice under the OTCA and that the first notice given was the filing of this lawsuit. Plaintiff contends, however, that no notice was required. Plaintiff argues that the OTCA's damages cap may be unconstitutional as applied to him. Even though the OTCA's notice provision is separate from the damages cap, plaintiff contends that if the OTCA is unconstitutional as applied in any particular way, then it simply does not apply at all.
In Smothers v. Gresham Transfer. Inc., 332 Or. 83, 23 P.3d 333 (2001), the Oregon Supreme Court concluded that Article I, § 10 of the Oregon Constitution guarantees a remedy for any injury to an absolute common law right. The Court held that the legislature may only abolish a remedy if it simultaneously provides an "adequate substitute remedy." A year later, the Oregon Supreme Court applied Smothers to a case facially challenging the constitutionality of the OTCA. In Jensen v. Whitlow, 334 Or. 412, 421, 51 P.3d 599 (2002), the Court rejected the facial challenge to the OTCA but left open the question of the constitutionality of the OTCA as applied:
A statute is not facially unconstitutional unless the statute is incapable of constitutional application in any circumstance. The OTCA is capable of constitutional application. For example, if a damages award to an individual does not exceed the "cap," then the OTCA does not implicate Article I, section 10, in any way. Because the damages "cap" is not implicated in every case, and because a damages award has yet to be determined in this case, the damages "cap" does not render the remedy available to plaintiff "incapable of restoring the right that has been injured." Thus, ORS 30.265(1), on its face, does not deprive plaintiff of that which the remedy clause guarantees her.
Plaintiff contends that the Oregon Supreme Court in Jensen did not tell lower courts how to determine if the OTCA is unconstitutional as applied, and that the question is now squarely presented. Plaintiff's theory is that if the OTCA is unconstitutional as applied to this plaintiff, then he is entitled to a verdict in excess of $100,000 against either the individually sued government employee or the municipality. Plaintiff proposes that the court allow a trial and a verdict. If the verdict does not exceed $100,000, the OTCA is valid as applied to plaintiff and then defendants can move for judgment in their favor against plaintiff for failure to comply with the notice requirements. If, however, according to plaintiff, the verdict exceeds $100,000, the OTCA is unconstitutional as applied, and judgment should be entered in plaintiff's favor.
Defendants contend that the damages provision of the OTCA is severable from the notice requirement. Defendants argue that the notice provision of the OTCA serves the purpose of "giv[ing] the public body timely notice of the tort and allow[ing] its officers an opportunity to investigate the matters promptly and ascertain all necessary facts." Urban Renewal Agency v. Lackey, 275 Or. 35, 41, 549 P.2d 657 (1976). In contrast, the purpose of the liability limit is "to facilitate the process of insuring against potential tort liability by fixing the amounts for which a public body may be held liable." Griffin v. Tri-County Metropolitan Trans. Dist., 318 Or. 500, 509, 870 P.2d 808 (1994). Defendants argue that a decision that the damages cap is unconstitutional would not require a holding that the notice provision is unconstitutional.
Plaintiff contends that giving the City or its agents the benefit of the notice provision if the damages cap is unconstitutional as applied to plaintiff would be turning the OTCA on its head. Plaintiff notes that unlike the state, municipalities were not historically entitled to the protection of sovereign immunity. Plaintiff relies on a special concurrence by Justice Linde in Hale v. Port of Portland. 308 Or. 508, 530, 783 P.2d 506 (1989), which highlights this point:
[The OTCA dollar cap on liability] is easier to defend with respect to the Port of Portland than the City of Portland. The court notes that the Port is a state agency and partakes of the state's immunity from unconsented suits, a premise that cannot be avoided without overruling a long line of prior decisions. Therefore, the court can say that the Oregon Tort Claims Act provides a new, though limited, remedy against the Port rather than takes away an old one. The City is in a different position. Its nonliability for what past cases have termed "governmental" as distinct from "proprietary" functions is not derived from the "sovereign immunity" involved in Article IV, section 24. And the court has allowed legislative immunization of cities from tort liability only on condition that the individuals who are personally responsible for harm qualifying as a legal injury remain liable. Batdorff v. Oregon City. 53 Or. 402, 100 P. 937 (1909); Mattson v. Astoria, 39 Or. 577, 65 P. 1066 (1901). This is analogous to altering or limiting the scope of respondeat superior rather than wholly depriving a plaintiff of a remedy in due course of law for harm that no one has declared not to be a legal injury when caused by public rather than private negligence. Because this case presents no claim against individual public "officers or employees, or agents," ORS 30.265, I concur with the court.
Plaintiff argues that because neither a municipality nor an individual government employee was entitled to the protection of sovereign immunity at common law or when the Oregon constitution was adopted, the OTCA can only be understood as a statute which extends unprecedented immunity.
Overall, I believe plaintiff's theory is a bit strained. It leads to the conclusion that the OTCA notice provision is simply inapplicable any time a plaintiff might have a claim for damages greater than $100,000. Even if the damages cap were found to be unconstitutional as applied, the notice provision serves other valid purposes, as noted above. The Oregon Supreme Court has held that certain provisions of the OTCA are unconstitutional without ruling that the entire statute is unconstitutional. See, e.g., Neher v. Chartier, 319 Or. 417, 879 P.2d 156 (1994), overruled on other grounds by Storm v. McClung, 334 Or. 210, 47 P.3d 476 (2002). I conclude that the OTCA damages cap is severable from the notice requirement. Defendants' motion to dismiss the negligence claim and motion for summary judgment against the negligence claim are granted.