IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DAVID PICRAY, 

Plaintiff, 

v. 

JEFFREY PARRISH, GABRIEL 

SAPP, and the CITY OF 

CORVALLIS, a political 

subdivision of the State 

of Oregon, 

Defendants. 

David C. Force 

96 E. Broadway, Suite 2 

P.O. Box 10972 

Eugene, Oregon 97440 

Attorney for plaintiff 

Robert E. Franz, Jr. 

Law Office of Robert E. Franz, Jr. 

P.O. Box 62 

Springfield, Oregon 97477 

Attorney for defendants 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-00918-AA 

OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 1 of 22
AIKEN, Chief Judge: 

Defendants the City of Corvallis ("City"), Jeremy Parrish, 1 

and Gabriel Sapp move for summary judgment against plaintiff David 

Picray pursuant to Fed. R. Civ. P. 56. For the reasons set forth 

below, defendants' motion is granted and this case is dismissed. 

BACKGROUND 

On May 11, 2 007, Sapp, a City police officer, observed 

plaintiff's truck weaving within its lane of traffic for several 

blocks. Sapp then witnessed plaintiff park his truck, stumble upon 

exiting, and walk towards a closed grocery store. Sapp pulled over 

and initiated conversation with plaintiff, during which he noticed 

the smell of alcohol and that plaintiff's words were slurred. 

Plaintiff consented to taking field sobriety tests; he failed two 

out of three tests. However, after plaintiff blew a 0.00 on the 

portable breathalyzer machine, Sapp decided he was not driving 

under the influence and released him from the scene. 

Plaintiff filed a formal complaint with the City Police 

Department as a result of his May 11, 2007, encounter with Sapp. 

After an investigation, the City determined that Sapp acted within 

Oregon law and department policy. Plaintiff lodged a grievance with 

the Community Police Review Board, which met on November 7, 2007, 

and found that the City's investigation and disposition of 

plaintiff's prior complaint were proper. Sapp was not disciplined. 

On May 11, 2010, Gary Rodgers called 911 reporting that 

plaintiff had entered the Northwest Realty Consultants' office, 

1 Sued erroneously as "Jeffrey." Parrish Decl. at 1~ 

Page 2 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 2 of 22
where Rodgers worked, to angrily complain about real estate "For 

Sale" signs located in public right-of-ways. Sapp was dispatched to 

the scene to investigate, wherein Rodgers stated that plaintiff 

threatened to destroy Northwest Realty Consultants' signs before 

leaving the premises. 

Shortly thereafter, Sapp was called to the front reception 

area of the police station to speak with plaintiff regarding 

Rodgers' alleged unlawful use of 911. Plaintiff also wanted to know 

whether any charges were being filed· against him; Sapp assured 

plaintiff that he was not being charged with any crime. Plaintiff 

and Sapp then discussed the removal of signs. Specifically, Sapp 

informed plaintiff that he did not have a legal basis to remove any 

real estate signs from public property. Plaintiff disagreed and 

read part of the City Municipal Code ("CMC") to Sapp, ~hich he was 

carrying with him on a piece of paper. 2 Sapp warned plaintiff that 

2 In pertinent part, the provisions of the CMC that 

plaintiff relies on specified in May 2010 that "[n]o person 

shall post, stick, stamp, paint, or otherwise affix or cause to 

be done by another any handbill or advertisement upon any 

building, wall, or part thereof, or upon any sidewalk, crosswalk, 

curb or curbstone, lamppost, hydrant, traffic control or 

directional sign, shade tree, or tree box or other public place 

. except as permitted in Section 107 of the Land Development 

Code"; "anyone" may remove or destroy "[a]ny handbill or 

advertisement prohibited by this Section." CMC 5.03.020.020, 

5.03.020.060. The Land Development Code ("LDC"), ·in turn, exempts 

signs - i.e. those "constructed of weather-resistant paper, 

cloth, wood, plastic, metal, or other material with sufficient 

structural integrity to withstand wind and moisture, so as to 

maintain appearance and service for the term of use" - from CMC 

5.03.020.020 and CMC 5.03.020.060. See LDC 1.6.30, 4.7.50(f), 

4.7.70(j), 4.7.120.03, 107.02, 107.07(d), 107.09(I), 107.17 

(2010); Force Decl. Ex. 1, at 2. In sum, real estate signs - such 

as those advertising a "For Sale" property - are allowed on 

public property with a permit (or without a permit if temporary) 

and may only be removed by the Director with prior notice. Id. 

Page 3 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 3 of 22
he should contact an attorney before removing any more signs. 

Plaintiff replied that he had sat in the City Manager's office and 

was promised that the sign issue would be addressed. Additionally, 

he remarked that he had been thrown out of the City Planning 

Department because they disputed whether temporary signs were 

subject to the CMC, as opposed to the LDC, when he tried to inform 

them of their enforcement duties. 

Later on May 11, 2010, Kristie Williams called 911 reporting 

that plaintiff had taken one of the "For Sale" signs, owned by her 

realtor Keller Williams, out of the median in front of her house 

and thrown it in her yard. Along with Sapp, Parrish and his 

training officer, Ryan Eaton, were dispatched in response. Parrish 

and Eaton located plaintiff and initiated a stop not far from 

Williams' residence. As Parrish approached the truck, plaintiff 

stated that he was recording their conversation. Although plaintiff 

was uncooperative and profane, he admitted to taking the "For Sale" 

sign from the median in front of Williams' horne. Parrish noticed, 

in plain view, two Bula Realty signs in the back of plaintiffs' 

truck; plaintiff conceded to taking those signs as well because 

they were placed on public property. 

While Parrish and Eaton with plaintiff, Sapp drove over to 

Williams' residence, wherein Williams she recounted the following 

events: 

she was standing outside her horne with her real estate 

agent, Richard Moss, who had previously placed two "For 

Sale" signs~ one in her front yard and the other in the 

median in front of her .residence. Plaintiff drove by in 

a green truck afid honked his horrt, yelled, and flipped 

them off by waving his middle finger. Williams went 

Page 4 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 4 of 22
indoors, after which Moss called to inform her that 

plaintiff was down the street; she observed him out of 

her window removing the real estate sign from the median 

and throwing it onto her front yard. Williams went 

outside and asked plaintiff what he was doing. He yelled 

at her about real estate signs and the CMC while waving 

a piece of paper in his hand. Williami told plaintiff 

that she was going to call the police. Plaintiff left as 

she dialed 911. While she was on the telephone, plaintiff 

parked his truck, got out of the vehicle, and started 

walking towards Williams, yelling again about the CMC. 

She went inside to avoid any further conflict because she 

was concerned about her safety. Similar ~For Sale" signs 

had disappeared from the median in front of her home on 

two prior occasions; during one of thesB instances, she 

witnessed plaintiff taking the sign and placing it in his 

truck. 

Sapp then responded to the scene of Parrish and Eaton's traffic 

stop, where he relayed the information he had heard from Williams 

and learned that plaintiff had two Bula Realty signs in the back of 

his truck. 

Sapp reiterated to plaintiff that, according to the City 

Police Department and the City Attorney's Office, he was not 

authorized to eliminate real estate signs from public property. 

After Sapp, Parrish, and Eaton conferred, Parrish issued two 

citations to plaintiff under CMC 5.03.090.050 (Petty Theft) and CMC 

5.03.090.030.02 (Tampering with Property) . 3 David Coulombe, the 

Deputy City Attorney, reviewed the citations, police reports; and 

relevant CMC provisions, and concluded there was probable cause to 

3 At all relevant times, CMC 5.63.090.030.02 stated ~[n]o 

person shall, with intent to cause substantial inconvenience to 

the owner or another person, and having no right to do so nor 

reasonable ground to believe that the person has such a right, 

tamper or interfere with property of another." Similarly, CMC 

5.03.090.050 makes it unlawful to ~take, appropriate, obtain, or 

withhold property from an owner thereof, where the value of the 

property in a single or aggregate transaction is under $50." 

Page 5 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 5 of 22
prosecute plaintiff. 

On May 21, 2 010, plaintiff appeared pro se at the City 

Municipal Court and filed a demurrer and motion to enjoin related 

to his May 11, 2010 citations. On May 28, 2010, Coulombe moved to 

appear on behalf of the City in a violation matter. On June 9, 

2010, the Municipal Court granted Coulombe's motion, allowing the 

City Attorney's Office to appear only for written argument, while 

requiring Parrish to make any oral argument on behalf of the City 

per standard procedure. On July 2, 2010, Coulombe filed an 

opposition to plaintiff's pro se motion. On August 6, 2010, the 

Municipal Court sent out a brief status report indicating that it 

would rule on plaintiff's pro se motion by August 20, 2010. The 

Municipal Court took no subsequent action such that, on June 13, 

2012, plaintiff's citations were dismissed for lack of speedy 

trial. 

On June 6, 2014, plaintiff filed a complaint in this Court, 

alleging the following claims premised on his 2007 complaints and 

2010 citations: (1) deprivation of his First Amendment rights in 

violation of 42 U.S.C. § 1983; (2) deprivation of liberty without 

due process of law in violation of 42 U.S.C. § 1983; and (3) common 

law malicious prosecution. On May 4, 2015, defendants filed the 

present motion for summary judgment. 

STANDARD 

Summary judgment is appropriate if the pleadings, depositions, 

answers to interrogatories, affidavits, and admissions on file, if 

any, show ~that there is no genuine dispute as to any material fact 

Page 6 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 6 of 22
and the [moving party] is entitled to judgment as a matter of law." 

Fed. R. Civ. P. 56(a). Substantive law on an issue determines the 

materiality of a fact. T. W. Elec. Servs., Inc. v. Pac. Elec. 

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the 

evidence is such that a reasonable jury could return a verdict for 

the nonmoving party determines the authenticity of the dispute. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

The moving party has the burden of establishing the absence of 

a genuine issue of material fact. Celotex Corp. v. Catrett, 4 77 

U.S. 317, 323 (1986). If the moving party shows the absence of a 

genuine issue of material fact, the nonmoving party must go beyond 

the pleadings and identify facts which show a genuine issue for 

trial. Id. at 324. 

Special rules of construction apply when evaluating a summary 

judgment motion: (1) all reasonable doubts as to the existence of 

genuine issues of rna terial fact should be resolved against the 

moving party; and (2) all inferences to be drawn from the 

underlying facts must be viewed in the light most favorable to the 

nonmoving party. T.W. Elec., 809 F.2d at 630. 

DISCUSSION 

The central issue to be decided in this case is whether any of 

plaintiff's federal or state rights have been violated by 

defendants' actions. 

I. Evidentiary Objection 

Plaintiff objects to portions of the sworn statements of 

Williams and Rodgers as hearsay, irrelevant, or improper legal 

Page 7 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 7 of 22
conclusion. Plaintiff also challenges Williams and Rodgers' account 

of his behavior on May 11, 2010 i.e. he asserts that their 

declarations are "entirely false" because they describe him as 

angry, loud, and threatening, whereas he was actually calm, polite, 

and composed at all times. Pl's Resp. to Mot. Summ. J. 7-8. 4 

The Court "is capable of independently resolving conflicts in 

the record and questions of admissibility," and therefore declines 

to strike the evidence at issue. Cascadia Wildlands v. Bureau of 

Land Mgmt., 2012 WL 6738275, *3 n. 6 (D.Or. Dec 21, 2012) (citation 

omitted); see also Perez-Denison v. Kaiser Found. Health Plan of 

the N.W., 868 F.Supp.2d 1065, 1088-89 (D.Or. 2012) (denying an 

evidentiary objection as moot where "the evidence moved against 

does not change the recommendation that [the defendant's summary 

judgment motion be] granted") . JVloreover, plaintiff's mere 

disagreement with Williams and Rodgers' version of events is not a 

sufficient basis to have that evidence stricken, especially because 

plaintiff does not dispute Parrish and Sapp's attestations 

regarding the contents of Williams and Rodgers' reports or that 

this evidence was introduced to establish probable cause. See Hart 

v . Parks , 4 5 0 F . 3d 1 0 5 9 , 1 0 6 6- 6 7 ( 9th C i r . 2 0 0 6 ) ( " [ p ] o 1 ice rna y 

rely on hearsay and other evidence that would not be admissible in 

a court to determine probable cause") ( citations omitted) . Were 

these disputed facts material, which they are not, plaintiff's 

declaration would simply preclude summary judgment, as the Court 

4 Plaintiff did not numeralize his response brief such that 

the Court refers to the page numbers assigned in the docket. 

Page 8 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 8 of 22
cannot make "[c]redibility determinations or weigh the evidence" at 

this stage in the proceedings. Reeves v. Sanderson Plumbing Prods. 

Inc., 530 U.S. 133, 150 (2000). Plaintiff's evidentiary objection 

is denied. 

II. Federal Claims 

To prevail on a claim under 42 U.S.C. § 1983, 5 a plaintiff 

must demonstrate that: (1) the conduct complained of deprived him 

or her of an existing federal constitutional or statutory right; 

and (2) the conduct was committed by a state actor or a person 

acting under color of state law. L.W. v. Grubbs, 974 F.2d 119, 120 

(9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). 

It is undisputed that the individually named defendants 

qualify as state actors for the purposes of 42 U.S. C. § 198 3. 

Accordingly, this case initially hinges on whether Parrish or Sapp 

violated plaintiffs' constitutional rights, or are otherwise 

entitled to qualified immunity. Qualified immunity shields 

government officials from civil liability "insofar as their conduct 

does not violate clearly established statutory or constitutional 

5 In Oregon, claims under 42 U.S.C. § 1983 are subject to a 

two-year statute of limitations. Sain v. City of Bend, 309 F.3d 

1134, 1139 (9th Cir. 2004) (citing Or. Rev. Stat. § 12.110). A 

claim is accrues under federal law "when the plaintiff knows or 

has reason to know of the injury which is the basis of the 

action." TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 

1999). In this case, defendants expressly raised the statute of 

limitations as a basis for summary judgment, but plaintiff wholly 

neglected to address this issue. See generally Pl.'s Resp. to 

Mot. Summ. J.; see also Bojorquez v. Wells Fargo Bank, NA, 2013 

WL 6 0 5 52 5 8 , * 5 ( D . 0 r . Nov . 7 , 2 0 13 ) ( " [ i ] f a party fa i 1 s to 

counter an argument that the opposing party makes in a motion, 

the court may treat that argument as conceded") (citation and 

internal quotations and brackets omitted). Regardless, 

plaintiff's claims fails on their ~erits. 

Page 9 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 9 of 22
rights of which a reasonable person would have known." Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). If the 

government actor reasonably believed that his or her conduct 

complied with the law, summary judgment based on qualified immunity 

is appropriate. Pearson v. Callahan, 555 U.S. 223, 236-44 (2009); 

see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified 

immunity protects "all but the plainly incompetent or those who 

knowingly violate the law"). 

A. First Amendment Claim 

Plaintiff alleges that he was cited and prosecuted in 

retaliation for his complaints against Sapp, for his "expressive 

conduct" in removing "illegal advertisement [s] from the public 

right of way," and for reporting defendants' conduct to the 

Corvallis Gazette-Times newspaper. Compl. ~ 8. 

To demonstrate retaliation in violation of the First 

Amendment, the plaintiff must first prove the defendant "took 

action that would chill or silence a person of ordinary firmness 

from future First Amendment activities." Skoog v. Cnty. of 

Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006) (citations 

omitted) . The plaintiff must also prove that the defendant's 

"desire to cause the chilling effect was a but-for cause of [his] 

action." Id. To establish causation, "a plaintiff must show 'a 

retaliatory motive on the part of an official urging prosecution 

combined with an absence of probable cause supporting the 

prosecutor's decision to go forward.'" Id. at 1234 (quoting Hartman 

Page 10 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 10 of 22
v. Moore, 547 U.S. 250, 265-66 (2006)) . 6 

Probable cause exists "if the available facts suggest a fair 

probability that the suspect has committed a crime." United States 

v. Hartz, 458 F.3d 1011, 1018 (9th Cir. 2006) (citation and 

internal quotations omitted). The court weighs the circumstances 

from the viewpoint of a reasonable officer at the scene, not using 

20/20 hindsight. Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 

1197 (9th Cir. 2002) (citation omitted). A police officer generally 

has the right to rely on information supplied by a citizen in 

determining probable cause, especially where that information is 

corroborated by a subsequent investigation. United States v. 

Greany, 929 F.2d 523, 525 (9th Cir. 1991) (citation omitted); see 

also McKinney v. George, 726 F. 2d 1183, 1187 (7th Cir. 1984) (" [i] f 

policemen arrest a person on the basis of a private citizen's 

complaint that if true would justify the arrest, and they 

reasonably believe it is true, they cannot be held liable for a 

violation of the Constitution merely because it later turns out 

that the complaint was unfounded") ( citations omitted) . Further, 

"[w]here one officer knows facts constituting reasonable suspicion 

or probable cause [and] he communicates an appropriate order or 

6 Plaintiff cites to Dietrich v. John Ascuaga's Nugget, 548 

F.3d 892 (9th Cir. 2008), in support of the proposition that 

"probable cause is not dispositive." Pl.'s Resp. to Mot. Summ. J. 

11-12. Dietrich clarified that a plaintiff who exclusively 

alleges retaliatory arrest is not required to plead and prove the 

absence of probable cause; under those circumstances, the 

existence of probable cause merely "has high probative force." 

Dietrich, 548 F.3d at 901 (citations and internal quotations 

omitted). However, Dietrich reaffirmed that where, as here, the 

theory of liability is retaliatory prosecution, a showing a 

probable cause is required. Id.; Compl. '.li 8. 

Page 11 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 11 of 22
request, another officer may conduct [an] arrest" without violating 

the Constitution. United States v. Ramirez, 473 F.3d 1026, 1037 

(9th Cir.), cert. denied, 552 U.S. 866 (2007). 

Plaintiff's First Amendment claim fails for two reasons. 

First, there is no meaningful evidence that defendants' citation or 

prosecution of plaintiff was motivated by his speech or/and 

expressive conduct. 7 Parrish Decl. at 6; Sapp Decl. at 8. Three 

years elapsed between plaintiff's initial complaints against Sapp 

and any allegedly retaliatory behavior, during which plaintiff and 

Sapp had no contact. Further, at the time he cited plaintiff, 

Parrish did not have any knowledge of the events that transpired in 

2007. Id.; Second Reynolds Decl. Ex. 113, at 5; see also Keyser v. 

Sacramento City Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir. 

2001) (two-year period between the exercise of First Amendment 

rights and the allegedly discriminatory conduct was insufficient to 

establish retaliation) . 

Sapp and Parrish only became involved with plaintiff on May 

11, 2010 in response to a 911 call from Williams. Sapp Decl. at 2-

5; Parrish Decl. at 2. As Parrish and Sapp repeatedly communicated 

to plaintiff during the traffic stop, he was not under arrest; 

instead, they were investigating a citizen complaint, during which 

they observed evidence of stolen property in plain view. Parrish 

Decl. Ex. 111, at 2-25; see also United States v. Struckman, 603 

F.3d 731, 741 (9th Cir. 2010) ("the fact that the police officers 

7 The Court assumes, for the sake of analysis, that taking 

real estate signs from public property falls within the purview 

of the First Amendment. 

Page 12 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 12 of 22
went to the house in response to [the neighbor's] 911 report to 

look around the area and, perhaps, ask questions was consistent 

with what citizens expect from law enforcement") . Moreover, the 

citation and prosecution of plaintiff were initiated prior to his 

conversation with the Corvallis Gazette-Times. Compl. i 8; Coulombe 

Decl. at 2. Based on these undisputed facts, the Court cannot 

conclude that defendants' desire to chill plaintiff's 

constitutionally-protected speech was the but-for cause of their 

allegedly wrongful actions. 

Second, plaintiff cannot establish a lack of probable cause. 

Sapp intercepted two complaints on May 11, 2010, regarding 

plaintiff. Both Rodgers and Williams similarly relayed that 

plaintiff had removed a real estate sign from public property and 

engaged in an angry confrontation. Rodgers Decl. at 2; Williams 

Decl. at 2-3; Sapp Decl. at 3-4. In between Rodgers' and Williams' 

911 calls, Sapp spoke with plaintiff and explained that he was not 

authorized to take temporary signs from public right-of-ways. Sapp 

Decl. at 3-4. Sapp's discussion with plaintiff was informed by two 

prior instances: 

in May 1007, I was involved in a case where a person was 

charged with Criminal Mischief in the First Degree for 

tampering with and destroying signs that were placed on 

public property during a briefing after that 

incident in 2007[,] the conclusion was that the City Code 

did not allow a person to remove or destroy temporary 

signs, such as real estate for sale signs, located on 

public property. Second, I spoke with my shift sergeant 

on May 11, 2010. He was familiar with the specific City 

Ordinances [plaintiff] was citing [and] advised me that 

he had spoken to the City Attorney about the City 

Ordinance in his opinion, and in the City 

Attorney's opinion, the signs were not handbills or 

advertisements. 

Page 13 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 13 of 22
Id. at 6-7; Coulombe Decl. at 2. 

Sapp reiterated to plaintiff while he was stopped that, 

according to the City Attorney, the CMC did not insulate plaintiff 

from liability for taking real estate signs from public spaces, as 

those signs have value and belong to the companies that installed 

them. Parrish Decl. Ex. 111, at 18-31. Although plaintiff quarreled 

with Sapp over the scope of CMC 5.03.020.020 and CMC 5.03.020.060, 

he admitted to taking the Bula Realty signs that were in the back 

of his truck, and to removing the Keller Williams sign and placing 

it in Williams' front yard. Id. at 4-31, 38-39. These facts, 

combined with plaintiff's prior statements at the police 

department, led Sapp to conclude that plaintiff "should have known 

that he did not have reasonable grounds to believe that he had a 

right to interfere or tamper with the sign in the median in front 

of [Williams'] home." Sapp. Decl. at 7. 

In determining that probable cause existed to cite plaintiff 

for Tampering with Property and Petty Theft, Sapp "relied on the 

City Attorney's opinion," as well has Williams' statements and his 

own observations and investigation. Id. at 4-7. Sapp expressed to 

Parrish that he "had established probable cause" and Parrish relied 

on Sapp's representation in issuing plaintiff citations. Id. at 5; 

Parrish Decl. at 3-4. Plaintiff has not set forth any argument or 

evidence to rebut Sapp or Parrish's sworn statements, beyond 

concluding that the CMC "expressly and unambiguously authorized him 

to remove the illegal signs." Pl.'s Resp. to MoL Summ. J. 11-15 

(citing Am. Picray Decl. at 6-12). Even accepting that plaintiff 

~ 

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Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 14 of 22
had such a right does not resolve whether he tampered or interfered 

with Keller Williams' real estate sign, with the intent to cause 

substantial inconvenience to Keller Williams or Williams, or took 

Bula Realty property totaling less that $50. 8 CMC 5.03.090.030.02, 

5.03.090.050. 

Thus, given the totality of circumstances, Sapp and Parrish 

possessed probable cause to cite plaintiff for Tampering with 

Property and Petty Theft. Nevertheless, even assuming that such 

probable cause was lacking, all of the facts in Parrish and Sapp's 

possession at the time plaintiff was cited indicated that plaintiff 

was not authorized to the remove the Bula Realty signs in the back 

of his truck or from the median in front of Williams' residence. 

See United States v. Black, 482 F. 3d 1035, 1038 (9th Cir. 2006), 

cert. denied, 552 U.S. 1023 (2007) ("[w]hether the actions of the 

police are objectively reasonable is to be judged by the 

circumstances known to them"). In other words, the record before 

the Court clearly demonstrates that Sapp and Parrish reasonably 

believed that their conduct complied with the law, such that 

qualified immunity attaches. Defendants' motion is granted as to 

plaintiff's First Amendment claim. 

B. Fourteenth Amendment Claim 

"The Fourteenth Amendment's Due Process Clause protects 

persons against deprivations of life, liberty, or property; and 

8 Plaintiff contends, for the first time in his opposition, 

that he would have returned Bula Realty's signs but for 

defendants' interference. As such, it is undisputed defendants 

did not become aware of this fact until well after the 

dispositive time frame. 

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Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 15 of 22
those who seek to invoke its procedural protection must establish 

that one of these interests is at stake." Wilkinson v. Austin, 545 

U.S. 209, 221 (2005) (citation omitted). 

Plaintiff's Fourteenth Amendment claim is difficult to 

decipher, in large part because he asserts divergent theories of 

liability in each of his filings. In his complaint, plaintiff 

alleges that his due process rights were violated because 

defendants "continued to prosecute" him until June 2012, despite 

the fact that he "was unrepresented," the City "retained the 

services of an attorney," and the CMC was amended in September 2011 

to "exemp[t] 

other than 

real estate and other commercial advertising signs 

'handbills' from the provisions of Ordinance 

5.03.020.030 and Ordinance 5.03.020.060." Compl. 'li'li 10-11. 

Plaintiff does not address this claim in his opposition, other than 

to argue generally that the City "authorized [his] prosecution 

[through] Parrish and later through City Attorney Coulombe, and 

resisted its dismissal for over two years." Pl.'s Resp. to Mot. 

Summ. J. 12-13. Plaintiff's declaration is likewise silent 

concerning the Fourteenth Amendment; he nonetheless concludes that, 

"by their extended detention and issuing of citations, [defendants] 

violated the Fourth Amendment to the U.S. Constitution; Articles 1 

Section 20 of the Oregon Constitution; as well as ORS 161.190; ORS 

161.195; ORS 161.105; ORS 161.115; and ORS 164.035." Am. Picray 

Decl. at 7. 

Regardless of the theory of liability, plaintiff's second 42 

U.S.C. § 1983 claim fails as a matter of law. Presuming that 

Page 16 - OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 16 of 22
plaintiff could amend his complaint via his response brief or 

declaration, he misstates the underlying facts. See Navajo Nation 

v. u.s. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008), cert. 

denied, 55 6 U.S. 12 81 ( 2 00 9) ("where, as here, the complaint does 

not include the necessary factual allegations to state a claimr 

raising such claim in a summary judgment motion is insufficient to 

present the claim to the district court"). The Municipal Court, 

against which no allegations of wrongdoing are made, authorized 

Coulombe to appear on behalf of the City, pursuant to Or. Rev. 

Stat.§ 153.076(6), because "[t]he issues raised by [plaintiff] are 

not issues in the normal course of violation matters, and police 

officers are not prepared to respond to Motions for injunctive 

relief." Coulombe Decl. Exs. 105-06. Defendants did not prolong 

plaintiff prosecution until June 2012: on August 6, 2010, the 

Municipal Court sent a letter notifying the parties that it would 

issue a ruling on plaintiff's prose motion by no later than August 

20, 2010; that the Municipal Court never issued such a ruling, and 

instead forgot about the case until plaintiff's counsel moved to 

dismiss in April 2012, does not implicate any misconduct on behalf 

of defendants. Coulombe Decl. Exs. 108-09 & 114. 

As discussed above, the citation and prosecution of plaintiff 

were either based on probable cause or shielded by qualified 

immunity. See Picray v. Sealock, 138 F.3d 767, 769-,71 (9th Cir. 

1998) (due process claims are "not cognizable under § 1983" if the 

plaintiff's "arrest and imprisonment conformed [with the 

Constitution]") (citations omitted); see also DeAnda v. City o£ 

Page 17 -OPINION AND ORDER 

Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 17 of 22
Long Beach, 7 F.3d 1418, 1422 (9th Cir. 1993) (the dismissal of a 

plaintiff's criminal the existence of 

probable cause more 

charges 

or less 

"does not make 

likely") . To the extent plaintiff 

contends the traffic stop constituted an illegal restraint on his 

liberty, his argument is unavailing. See United States v. Collom, 

614 F.2d 624, 628 (9th Cir. 1979.), cert. denied, 446 U.S. 923 

(1980) (reasonable suspicion exists fbr a traffic stop "when the 

detaining officer is aware of specific articulable facts, together 

with rational inferences from those facts, that reasonably warrant 

suspicion that the law is being broken") ( citation and internal 

quotations omitted). 

Finally, the September 2011 amendment of the CMC - to make 

more explicit that real estate signs are not subject to the citizen 

enforcement provision - in no way reflects improper ex post facto 

application of the law. See Garner v. Jones, 529 U.S. 244, 249-50 

(2000) (ex post facto clause bars "enactments which, by retroactive 

operation, increase the punishment for a crime after its 

commission") (citations omitted); see also McClure v. Premo, 2013 

WL 3347370, *6 (D.Or. June 28, 2013) (no ex post facto violation 

exists where the law, as amended, does not "appl [y] to events 

occurring before its enactment" or "produc[e] a sufficient risk of 

increasing the measure of punishment") (citations and internal 

quotations omitted) . Defendants' motion is granted as to 

plaintiffis Fourteenth Amendment claim. 

C. Monell Liability 

Liability under 42 U.S.C. § 1983 cannot be premised on a 

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respondeat superior theory; a municipality may only be held liable 

if the entity itself acted illegally through a policy or custom. 

Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). 

nA plaintiff cannot prove the existence of a municipal policy or 

custom based solely on the occurrence of a single incident or 

unconstitutional action by a non-policymaking employee." Davis v. 

City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989). 

As a preliminary matter, plaintiff did not allege the 

existence of a City policy or custom that was the moving force 

behind the constitutional violations at issue in this case. Compl. 

~~ 4-8. In an attempt to cure this deficiency, plaintiff argues in 

opposing summary judgment that nthe affidavit of Jonathan Sassaman, 

asserting that the City has no practice of allowing retaliatory 

prosecutions of violation of First Amendment rights, is [false and] 

clearly inaccurate 11 because, in addition to being issued two 

citations in May 2010, he was arrested in April 2000 while 

collecting signatures in a grocery store parking lot and former 

City police officer David Cox narrested one Brian Noakes, and 

numerous others for DUIT without probable cause," in May 2007. 

Pl.'s Resp. to Mot. Summ. J. 13-14 (citing Am. Picray Decl. at 7-8; 

Force Decl. Exs. 2-3). Because he has not moved for leave to amend 

the complaint, and there is currently no allegation of any illegal 

municipal policy or custom, plaintiff's opposition is immaterial. 

Navajo Nation, 535 F.3d at 1080; see also Wasco Prods., Inc., v. 

Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.), cert. denied, 

549 U.S. 817 (2006) ("summary judgment is not a procedural second 

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Case 6:14-cv-00918-AA Document 42 Filed 08/14/15 Page 19 of 22
chance to flesh out inadequate pleadings") (citation and internal 

quotations omitted). 

As addressed herein, plaintiff has not identified any facts 

indicating that Parrish or Sapp acted in an unlawful manner; he 

also misreads the evidentiary record. Sassaman, the City's Chief of 

Police since June 2012 and the Captain of the City Police 

Department in May 2010, provided uncontradicted testimony that, "as 

of May 11, 2010, the· City did not have a policy, practice or 

custom" of: (1) "having its law enforcement officers violate the 

provisions of the U.S. Constitution"; (2) "having its law 

enforcement officers issue a citation to a person absent probable 

cause"; (3) "intiat[iniJ and maintain[ing] a criminal prosecution 

of a person for any improper purpose"; ( 4) "disregarding a 

plaintiff's right to a speedy trial under the laws of the State of 

Oregon"; ( 5) "intimidating anyone from speech and advocacy"; ( 6) 

"prosecut[ing] someone by ex post facto application of a law"; or 

(7) "restrain[ing] a person's liberty without due process of law." 

First Sassaman Decl. at 2-3. Therefore, plaintiff's evidence from 

2000 and 2007, years before the relevant time period and arising 

out of disparate factual scenarios, is insufficient to create a 

genuine issue of material fact. 

Perhaps more importantly, both Cox and the officers that 

arrested plaintiff in 2000 were disciplined because their actions 

did not conform with the City's policies, procedures, or customs. 

Second Sassaman Decl. at 2-3; Force Decl. Exs. 2-3. In other words, 

the City did not ratify the supplemental conduct that plaintiff 

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identifies as the basis of his Monell claims. See Price v. City of 

Sutherlin, 945 F.Supp.2d 1147, 1159-61 (D.Or. 2013) (no liability 

attaches under 42 U.S. C. § 1983 where the officer's allegedly 

unconstitutional conduct was not ratified by a supervisor); see 

also Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 

2011) ("municipal liability may be established by showing a 

longstanding practice or custom which constitutes the standard 

operating procedure of the local government entity," such as where 

"evidence of repeated constitutional violations for which the 

errant municipal officers were not discharged or reprimanded" 

exists) (citations and internal quotations omitted). Defendants' 

motion is granted as to plaintiff's federal claims. 

III. State Law Claim 

Dismissal of plaintiff's federal claims does not automatically 

deprive this Court of subject matter jurisdiction. Carlsbad Tech., 

Inc. v. HIF Bio. Inc., 556 U.S. 635, 639 (2009). Rather, where a 

district court dismisses "all claims over which it has original 

jurisdiction," it may, in its discretion, "decline to exercise 

supplemental jurisdiction" over pendent state law claims. 28 U.S.C. 

§ 1367 (c) (3); Lacey v. Maricopa Cnty., 693 F. 3d 896, 940 (9th Cir. 

2 012) . Here, the Court retains supplemental jurisdiction over 

plaintiff's pendent malicious prosecution claim in order to resolve 

this lawsuit in its entirety. 

As discussed in section II, Parrish had probable cause to cite 

plaintiff for Tampering with Property and Petty Theft. See Hartley 

v. State Water Res. Dep't, 77 Or.App. 517, 520, 713 P.2d 1060, rev. 

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denied, 301 Or. 78, 718 P.2d 744 (1986) ("the existence of probable 

cause is a complete defense to a claim for malicious prosecution") 

(citation omitted) . Furthermore, based on the advice of the City 

Attorney and other City officials, Sapp "knew that the City did not 

interpret the Code to allow a person to remove or destroy temporary 

signs." Sapp Decl. at 6. Sapp discussed the City Attorney's 

interpretation of the CMC with plaintiff in Parrish's presence and 

immediately prior to Parrish issuing plaintiff a citation. Id.; 

Parrish Decl. Ex. 111, at 26-29. 

Additionally, the undisputed evidence of record evinces that 

plaintiff was not prosecuted for an improper purpose. See Singh v. 

McLaughlin, 255 Or.App. 340, 352, 297 P.3d 514 (2013) (to 

demonstrate malicious prosecution, the plaintiff must prove, 

amongst other elements, "malice in instituting the proceedings"). 

In fact, plaintiff's opposition is wholly silent as to this 

element. Defendants' motion is granted as to plaintiff's state law 

malicious prosecution claim. 

CONCLUSION 

Defendants' motion for summary judgement (doc. 23) is GRANTED. 

Defendants' request for oral argument is DENIED as unnecessary. 

This case is DISMISSED. 

IT IS SO ORDERED . 

. ,, I --1Yt Dated this _/_:z_ of August 2015. 

Ann Aiken 

United States District Judge 

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