OPINION & ORDER - 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DENNIS T. SWANBERG,

No. 3:14-cv-00882-HZ

Plaintiff,

OPINION & ORDER

v.

JORGE TRO, an individual; BRET

SMITH, an individual,

Defendants.

Matthew C. Ellis

Law Office of Matthew C. Ellis

621 SW Morrison St., Ste. 1050

Portland, OR 97205

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OPINION & ORDER - 2

Stephen L. Brischetto

Attorney at Law

621 SW Morrison St., Ste. 1025

Portland, OR 97205

Attorneys for Plaintiff

Blake H. Fry

Karen M. Vickers

Mersereau & Shannon, LLP

One SW Columbia St., Ste. 1600

Portland, OR 97258

Attorneys for Defendants

HERNÁNDEZ, District Judge:

Plaintiff Dennis Swanberg worked as a police officer for the City of Canby, Oregon, for 

almost thirty years. In 2012, he resigned amidst an internal investigation during which his 

supervisors alleged he lied about his handling of a citizen encounter. Swanberg claimed the 

investigation was pretextual and driven by his supervisors’ resentment of his past involvement in 

legal actions alleging gender discrimination and criminal corruption within the Canby Police 

Department. Swanberg filed this suit alleging that the City of Canby and individual defendants 

Jorge Tro and Bret Smith (collectively “Defendants”) retaliated against him for exercising his 

constitutional right to free speech and right to petition the government. 

At summary judgment, the Court dismissed Swanberg’s claims against the City of Canby 

because he failed to produce evidence showing that a City policy or custom caused the 

investigation into his conduct or his subsequent resignation. Swanberg v. Canby, No. 3:14-CV00882-HZ, 2015 WL 5254373, at *11–14 (D. Or. Sept. 9, 2015) (citing, among others, Monell 

v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)). 

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Swanberg’s claims against Defendants Tro and Smith, however, largely survived, and the

Court held a jury trial in October of 2015. The jury found that Tro, the principal investigator into 

Swanberg’s conduct, acted with an illegal retaliatory motive and violated Swanberg’s 

constitutional rights. Not so, however, for Defendant Smith, who was Chief of Police at the 

relevant times; the jury found that he did not retaliate against Swanberg. The jury awarded 

Swanberg $109,233 in compensatory damages and $12,000 in punitive damages. Jury Verdict, 

ECF No. 103.

In his complaint, Swanberg requested economic and punitive damages, a declaration that 

“all Defendants violated [his] constitutional rights[,]” and an order “requiring Defendants to 

provide [him] with his photo identification card and wallet retirement badge from the Canby 

Police Department.” Complaint at 9. During trial, Swanberg testified about his desire to have the 

badge and ID card, and that Chief Smith had refused to issue them to him. Interestingly, the jury 

inquired several times during its deliberations about whether it could award Swanberg the ID 

card and retirement badge in lieu of awarding punitive damages. Of course, whether Swanberg is 

entitled to equitable relief such as a declaration of his rights or an injunction ordering the 

Defendants to take action is a question for the Court, not the jury, to decide. See, e.g., Lutz v. 

Glendale Union High School, 403 F.3d 1061, 1067 (9th Cir. 2005). 

And decide it must. Currently before the Court is Swanberg’s motion for declaratory and 

injunctive relief. He requests that the Court reinstate the City as a defendant and either declare

that Swanberg is entitled to a retirement badge and wallet identification card, or order the City or 

Chief Smith to issue Swanberg the disputed items. For the reasons that follow, that motion is 

denied.

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OPINION & ORDER - 4

STANDARDS

“The decision to grant or deny permanent injunctive relief is an act of equitable discretion

by the district court[.]” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Injunctive 

relief is appropriate when a party demonstrates “(1) that it has suffered an irreparable injury; (2) 

that remedies available at law, such as monetary damages, are inadequate to compensate for that 

injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a 

remedy in equity is warranted; and (4) that the public interest would not be disserved by a 

permanent injunction.” N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007).

DISCUSSION

The first issue is whether the Court should reinstate the City of Canby as a defendant. 

Swanberg argues that reinstatement would be justified because the Court’s dismissal of the City 

at summary judgment was “premature.” Pl. Motion at 2. Since Defendants did not specifically 

seek summary judgment on his claims for injunctive or declaratory relief, Swanberg asserts that 

the Court’s Opinion & Order “adjudicated fewer than all claims asserts against the City” and 

thus “could not be the basis for a judgment dismissing the City.” Pl. Mot. at 2. 

In its summary judgment Opinion & Order, the Court analyzed whether the City could be 

liable for Swanberg’s claims. Swanberg, 2015 WL 5254373, at *11–14; see also Defendants’ 

Motion for Summary Judgment, ECF No. 39, at 29 (“Finally . . . [Swanberg’s] claims as they 

pertain to the City of Canby[] should be dismissed” because Swanberg failed to produce 

evidence of a municipal custom or policy as required by Monell and its progeny). The Court 

rejected each argument Swanberg advanced in support of his theory of municipal liability and 

subsequently dismissed the City because Swanberg’s claims against it failed as a matter of law. 

Swanberg, 2015 WL 5254347 at *11–14; Order, ECF No. 96 (“The Court finds that the City of 

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Canby (an Oregon municipal corporation) was dismissed by the Court's Opinion & Order [50] as 

of 9/9/2015. The Clerk shall so amend the docket and the case caption shall be amended as 

follows: Dennis T. Swanberg, Plaintiff v. Bret Smith, an individual, and Jorge Tro, an individual, 

Defendants.”). 

The type of relief Swanberg sought against the City is not relevant because he was only 

entitled to relief, whether legal or equitable, if he had a valid underlying claim. See Guglielmi ex 

rel. Guglielmi v. Anheuser-Busch Cos., Inc., No. CV-04-594-ST, 2005 WL 300064, at *5 (D. 

Or. Feb. 8, 2005) (“It is axiomatic that to obtain relief, [a plaintiff] must first have an underlying 

claim.”). Swanberg has not shown a viable claim against the City, and the City is not reinstated 

as a defendant in this case. 

Swanberg asserts that “[a] plaintiff may establish municipal liability for an 

unconstitutional action when a municipal policy maker approves of a subordinate[’]s 

unconstitutional decision and the basis of the decision.” Pl. Mot. at 4 (citing Hyland v. Wonder, 

117 F.3d 405, 414 (9th Cir. 1997). He also cites Hyland for the proposition that “[a] decision to 

deny a governmental benefit post-termination is actionable unlawful retaliation.” Id. (citing 117 

F.3d at 416). While those may be reasonable rules to draw from the Hyland decision, Swanberg 

did not raise this theory for the Court to consider at summary judgment and the Court declines 

now to reconsider its decision on the City’s liability under Monell. Second, there is a disconnect 

in Swanberg’s theory. The jury examined the testimony and other evidence in this case, 

including the fact that Chief Smith had refused to give Swanberg the badge and ID card, and 

determined that Chief Smith did not illegally retaliate against Swanberg in violation of his 

constitutional rights. There is no evidence that Defendant Tro, the sole defendant the jury found 

to have retaliated against Swanberg, was involved at all in deciding whether Swanberg was to 

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receive his badge or ID card. Thus, it cannot be true that the City or Chief Smith “ratified” Tro’s 

decision to deny Swanberg these items. 

Swanberg argues that the Federal Rules of Civil Procedure authorize the Court to enter 

injunctive or declaratory relief against a nonparty, and pursuant to Rules 65 and 71, the Court 

should do so here. The Federal Rules “provide for enforcement of judgments against non-parties 

in limited circumstances.” Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir.1998). 

Under Rule 65(d), an injunction is “binding only upon the parties to the action, their officers, 

agents, servants, employees, and attorneys, and upon those persons in active concert or 

participation with them who receive actual notice of the order by personal service or otherwise.”

Am. Semiconductor, Inc. v. California Assignments LLC, No. 12-CV-06138-LHK, 2013 WL 

5937968, at *3 (N.D. Cal. Oct. 30, 2013) (quoting FED. R. CIV. P. 65(d)). 

But Rule 65(d) merely codifies a court’s common law authority to enforce an injunction 

against certain people who have notice of a court order. Red 1 Investments, Inc. v. Amphion Int'l 

Ltd., No. CV-06-279-LRS, 2007 WL 3348594, at *2 (E.D. Wash. Nov. 9, 2007) (citing Regal 

Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945) (“[Rule 65(d)] is derived from the common-law 

doctrine that a decree of injunction not only binds the parties defendant but also those identified 

with them in interest, in ‘privity’ with them, represented by them or subject to their control. In 

essence it is that defendants may not nullify a decree by carrying out prohibited acts through 

aiders and abettors, although they were not parties to the original proceeding.”)

Rule 65(d) does not empower the Court to enjoin a nonparty; rather, it authorizes the 

Court to hold certain nonparties in contempt for violating an existing order as a way to ensure 

that a party cannot carry out a prohibited act through, for example, a subordinate. American 

Semiconductor, 2013 WL 5937968 at * 3–4 (citing Class Plaintiffs v. City of Seattle, 955 F.2d 

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1268, 1280 (9th Cir. 1992); Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (9th Cir. 

1998); LifeScan Scotland, Ltd. v. Shasta Techs., LLC, No. 11-CV-04494-WHO, 2013 WL 

4604746, at *5 (N.D. Cal. Aug. 28, 2013) (“an injunction does not enjoin nonparties acting in 

their separate capacities; but a nonparty may be held in contempt of an injunction after an 

assessment of the nonparty’s behavior and relations to the enjoined party.”). Without a valid 

injunction, in other words, Rules 65 and 71 simply do not come into play. 

The City is no longer a party to this case, and thus the Court cannot enter an injunction

against it. See LifeScan, 2013 WL 4604746 at *4 (“It is firmly established that ‘a court may not 

enter an injunction against a person who has not been made a party to the case before it.’ ”) 

(quoting Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 

(Fed.Cir. 1996)). The Court cannot issue an injunction ordering Defendant Tro to give Swanberg 

his badge and ID card because Tro does not have the authority to issue those items. See

McDaniel v. Bd. of Educ. of City of Chicago, 956 F. Supp. 2d 887, 893 (N.D. Ill. 2013) (“if a 

defendant does not have the authority to carry out the injunction, a plaintiff's claims for 

injunctive relief must be dismissed because the Court cannot enjoin a defendant ‘to act in any 

way that is beyond [the defendant’s] authority in the first place.’ ”) (quoting Okpalobi v. Foster,

244 F.3d 405, 426–27 (5th Cir.2001).

As for Chief Smith, the jury has already determined that he did not violate Swanberg’s 

constitutional rights. The jury knew about Chief Smith’s refusal to give Swanberg a retirement 

badge or ID card, yet they concluded that Chief Smith did not illegally retaliate against 

Swanberg. An order from the Court requiring Chief Smith to take action is inconsistent with the 

jury’s finding that Chief Smith did not violate Swanberg’s constitutional rights. 

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Importantly, Swanberg seeks a mandatory injunction, that is, an order requiring a 

responsible party to take a particular action. Marlyn Nutraceuticals, Inc. v. Mucos Pharma 

GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (citing Meghrig v. KFC W., Inc., 516 U.S. 479, 

484 (1996)). A mandatory injunction “goes well beyond simply maintaining the status quo . . . 

and is particularly disfavored.” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th 

Cir. 1980). Generally, “mandatory injunctions are not granted unless extreme or very serious 

damage will result and are not issued in doubtful cases or where the injury complained of is 

capable of compensation in damages.” Id. (quoting Anderson, 612 F.2d at 1115). 

After the Court instructed the jury that it did not have the power to order any of the 

Defendants to give Swanberg his badge and ID card, the jury increased its damages awarded to 

Swanberg by $12,000. That indicates Swanberg’s alleged injury here was compensable. 

Secondly, given the heightened scrutiny of mandatory injunctions, the Court is unwilling to upset 

the jury’s finding that Chief Smith did not violate Swanberg’s constitutional rights and order 

Chief Smith to take action in Swanberg’s favor. 

Alternatively, Swanberg requests a declaration from the Court that he “has a right to his 

wallet ID and retirement badge.” Pl. Reply at 5. Under the Declaratory Judgment Act, the court 

“may declare the rights and other legal relations of any interested party seeking such declaration, 

whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a); see also Portland Cable 

Access v. Fitzpatrick, No. 95-596, 1995 WL 813158, at *1–2 (D. Or. Nov. 6, 1995) (explaining 

that the “Declaratory Judgment Act makes the granting of declaratory relief discretionary.”)

(citing Continental Casualty Co. v. Robsac Indus., 947 F.2d 1367, 1369 (9th Cir. 1991)). 

The Court declines to exercise its discretion as Swanberg requests. First, Swanberg’s 

complaint only sought a declaration that “all Defendants violated [Swanberg’s] constitutional 

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rights to equal protection, to petition the government for grievances and to free speech.” 

Complaint at 9. There is no need for a declaration to that effect; the jury has already found that 

Defendant Tro, and Tro alone, illegally retaliated against Swanberg and violated his 

constitutional rights. 

Second, Swanberg does not point to any evidence in the record demonstrating that he is 

entitled to receive his retirement badge and ID card. It is not clear to the Court what the 

qualifications are to receive a retirement badge, much less whether Swanberg actually meets 

those requirements. The fact that Defendant Tro retaliated against Swanberg during the internal 

investigation into Swanberg’s conduct does not necessarily lead to the conclusion that Swanberg 

has a right to his retirement badge. As stated throughout this Opinion & Order, the jury examined 

the evidence of Chief Smith’s conduct and determined that he did not illegally retaliate against 

Swanberg; the Court cannot draw from that result that Swanberg is entitled to his retirement 

badge as a matter of law. In other words, Swanberg has not proven that he is actually entitled to 

the requested relief. 

ORDER

For the reasons stated, Swanberg’s motion for declaratory and injunctive relief [109] is 

denied. The parties shall confer and submit a proposed judgment consistent with this order 

within 14 days of the date listed below. 

Dated this day of ___________________, 2016. 

MARCO A. HERNÁNDEZ

United States District Judge

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