IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ADAM MICHAEL HORSTMAN, 

Plaintiff, 

v. 

CITY OF HILLSBORO, a municipal 

corporation; DAVID BONN; BRIAN 

WILBER; and TED SCHRADER, 

Defendants. 

BROWN, Judge. 

3:15-CV-00203-PK 

ORDER 

Magistrate Judge Paul Papak issued Findings and 

Recommendation (F&R) (#72) on August 17, 2016, in which he 

recommends the Court grant Plaintiff' Motion (#46) for Partial 

Summary Judgment, grant in part and deny in part Defendants' 

Motion (#50) for Summary Judgment, and deny as moot Defendants' 

Motion to Strike included in Defendants' Response (#67). 

Defendants filed timely Objections to the Findings and 

Recommendation. The matter is now before this Court pursuant to 

28 U.S.C. § 636(b) (1) and Federal Rule of Civil Procedure 72(b). 

When any party objects to any portion of the Magistrate 

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Case 3:15-cv-00203-PK Document 78 Filed 11/04/16 Page 1 of 15
Judge's Findings and Recommendation, the district court must make 

a de nova determination of that portion of the Magistrate Judge's 

report. 28 U.S.C. § 636(b) (1). See also Dawson v. Marshall, 561 

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 

F. 3d 1114, 1121 (9th Cir. 2003) (en bane). 

FACTUAL BACKGROUND 

The Magistrate Judge made the following factual findings: 

Between May 18, 2014, and June 30, 2014, four pharmacies at 

three different Albertsons stores and one Rite Aid store in the 

Hillsboro area were robbed. The robber stole significant amounts 

of opiate pain medications. Hillsboro police, including the 

named individual Defendants Detective David Bonn, Detective Brian 

Wilber, and Sergeant Ted Schrader, investigated these robberies, 

viewed surveillance videos, and took statements from witnesses. 

The last robbery occurred at 8:30 p.m., June 30, 2014, at an 

Albertsons Pharmacy. The robber left a demand note used in this 

robbery, which was taken into evidence by police during the 

investigation. Witnesses at each robbery generally described the 

suspect as a white adult male; approximately 5 foot 11 inches 

tall; 200-210 pounds; with a beard, variously described as 

"dark,n "full, brownish-red,n and "neatly manicured.n 

At 10:47 p.m., on June 30, 2014, Plaintiff went to the Rite 

Aid Pharmacy to fill a prescription for pain medication following 

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his treatment at the emergency room. Unbeknownst to him, the 

Rite Aid Pharmacy had been robbed six weeks earlier on May 18, 

2014. Plaintiff had the prescription filled and left the store 

without incident. Several minutes after Plaintiff left the 

store, the assistant store manager called police to report that a 

person who was just there "looked a lot like" the person who had 

robbed the pharmacy on May 18, 2014. A police officer (not one 

of Defendants) arrived at the Rite Aid Pharmacy to investigate 

the call. The officer took statements from two employees, 

Jovencio Domingo and Brandee Mears. Domingo was the pharmacist 

who was involved in the May 18, 2014, robbery and who also filled 

Plaintiff's prescription on June 30, 2014. Domingo stated he was 

"approximately 90 percent sure" that Plaintiff was the person who 

robbed the pharmacy on May 18, 2014, and Mears stated she was "80 

percent sure" that Plaintiff was the robber. The officer 

obtained surveillance video and a copy of Plaintiff's 

prescription information that included his name. 

On July 1, 2014, another police officer returned to the Rite 

Aid Pharmacy with a photo array that included a DMV photo of 

Plaintiff. Neither Domingo nor Mears conclusively identified 

Plaintiff as the robber from the photo array. 

On July 2, 2014, Det. Wilber and Det. Bonn contacted Ryan 

Cleven and Sherri Plasker, the witnesses who had been involved in 

the robbery on June 30, 2014, at the Albertsons Pharmacy, and 

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showed them a photo array that included Plaintiff's photo. 

Neither Cleven nor Plasker was able to conclusively identify 

Plaintiff or any other suspect, although Plasker noted 

Plaintiff's photo looked like the robber. During a second 

showing of the photos to Plasker, Det. Wilber and Det. Bonn 

reminded Plasker that she had suggested Plaintiff was the 

culprit. Plasker then formally identified Horstman as the robber 

with "70 percentn certainty. 

On July 4, 2014, Hillsboro police officers, including 

Seg. Schrader, went to Plaintiff's home without a warrant and 

placed him under arrest. Plaintiff voluntarily consented to a 

search of his home, but the search did not reveal evidence of any 

robberies or drug trafficking. Plaintiff was interrogated for 

several hours, first at his home and then at the Hillsboro police 

station. Plaintiff maintained his innocence throughout the 

interrogation. 

Following Plaintiff's interrogation, Det. Bonn drafted a 

probable cause affidavit and presented it to the prosecuting 

attorney. Plaintiff was formally charged and booked into the 

Washington County Jail where he remained until July 9, 2014. On 

that date the state dismissed the charges against Plaintiff after 

police identified and arrested the actual perpetrator based on 

the fingerprint from the robbery demand note. 

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DISCUSSION 

Plaintiff alleges four claims against the Defendants: 

(1) false arrest in violation of his rights under the Fourth and 

Fourteenth Amendments of the United States Constitution; 

(2) malicious prosecution in violation of his rights under the 

Fourth and Fourteenth Amendments of the United States 

Constitution; (3) false arrest under Oregon state law; and 

(4) malicious prosecution under Oregon state law. Plaintiff 

brings his federal claims pursuant to 42 U.S.C. § 1983 and his 

state-law claims pursuant to Oregon Revised Statute § 30.265. 

Plaintiff asserts his false-arrest claims (First and Third 

Claims) against all Defendants and his malicious-prosecution 

claims (Second and Third Claims) against only Defendants Bonn and 

City of Hillsboro. Plaintiff moves for partial summary judgment 

against the individual Defendants as to the federal and state 

claims for false arrest. Defendants move for summary judgment as 

to each claim asserted against them. 

The Magistrate Judge found: (1) Defendants lacked probable 

cause to arrest Plaintiff; (2) the individual Defendants in this 

case are not entitled to qualified immunity in light of the fact 

that under the Fourth Amendment Plaintiff can be arrested only if 

probable cause exists, and a reasonable officer would not have 

believed probable cause existed under these circumstances; 

(3) Plaintiff has not offered sufficient evidence to support a 

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Monell claim against the City of Hillsboro; (4) the availability 

of a state-court remedy does not bar Plaintiff's federal 

malicious-prosecution claim; (5) the presumption of prosecutorial 

independence does not entitle Bonn or the City to summary 

judgment on Plaintiff's state and federal malicious-prosecution 

claims in this case because Defendant Bonn's conduct compromised 

the prosecutor's independent judgment; (6) a genuine dispute of 

material fact exists as to whether Defendants acted with malice, 

which would preclude summary judgment as to Bonn and the City 

on Plaintiff's state and federal malicious-prosecution claims; 

(7) the Oregon Tort Claims Act, Oregon Revised Statute 

§ 30.265(1), does not entitle the individual Defendants to 

summary judgment on Plaintiff's state-law claims; and 

(8) Defendants' Motion to Strike should be denied as moot. 1 

Defendants assert the following objections to the Magistrate 

Judge's Findings and Recommendation: 

1. Plaintiff is not entitled to summary judgment on his 

federal and state false-arrest claims against the individual 

Defendants because the record reflects Defendants had 

probable cause to arrest Plaintiff; 

2. All Defendants are entitled to summary judgment on 

Plaintiff's federal and state false-arrest claims because 

1 Defendants did not object to the Magistrate Judge's 

recommendation to deny as moot their Motion to Strike. 

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the record reflects Defendants had probable cause to arrest 

Plaintiff; 

3. The individual Defendants are entitled to summary 

judgment on Plaintiff's federal and state maliciousprosecution claims because the record reflects the deputy 

district attorney exercised independent judgment in choosing 

to charge Plaintiff; and 

4. The individual Defendants are entitled to qualified 

immunity because their allegedly unlawful actions did not 

violate any clearly-established constitutional right. 

In their Objections Defendants merely reiterate the 

arguments they made in their initial Motion for Summary Judgment 

rather than raising any new issues. 

I. Probable Cause 

Defendants contend there is evidence in the record to 

support a finding of probable cause. Thus, Defendants contend 

the Magistrate Judge erred in his conclusion that "none of the 

facts Defendants relied on in determining that Horstman was 

responsible for the pharmacy robberies, whether considered 

individually or together, provided probable cause for his 

arrest." F&R 23-24. 

"Probable cause to arrest exists when officers have 

knowledge or reasonably trustworthy information sufficient to 

lead a person of reasonable caution to believe that an offense 

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has been or is being committed by the person being arrested." 

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). The 

probable-cause inquiry takes into consideration the totality of 

the circumstances existing at the time of the arrest. Id. See 

also United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th 

Cir. 2005). Consequently, arresting officers may not disregard 

exculpatory facts when determining whether probable cause exists. 

Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 

2015) ("Certainly, an officer may not ignore exculpatory evidence 

that would 'negate a finding of probable cause.'") (quoting Braam 

v. Bogan, 320 F.3d 1023, 1032 (9th Cir.2003)). 

Although conclusive evidence of guilt is not required, 

"[m]ere suspicion, common rumor, or even strong reason to suspect 

are not enough." McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 

1984) (citing Henry v. United States, 361 U.S. 98, 101 (1959)). 

When the facts underlying the arresting officers' probable-cause 

determination are undisputed, whether probable cause existed for 

an arrest is "an essentially legal question" that should be 

determined by the district court at the earliest possible point 

in § 1983 false-arrest litigation. 

F.3d 970, 979 (9th Cir. 2003). 

Peng v. Mei Chin Penghu, 335 

The Magistrate Judge set out in detail the undisputed facts 

surrounding this incident and found, based on "the totality of 

the facts," that a reasonable person could not conclude Plaintiff 

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had conunitted the robbery, and, therefore, Defendants lacked 

probable cause to arrest Plaintiff. 

As noted, witnesses did not conclusively identify Plaintiff 

in the photo arrays presented to them; for example, Cleven and 

Domingo were unable to identify any suspect from the eight photos 

in the array, and Mears was only able to say that two of the 

individuals in the photos might have been the robber. In 

addition, although Det. Bonn and Det. Wilber showed Plasker the 

photo array twice, Plasker did not conclusively identify 

Plaintiff during the first showing and only stated Plaintiff's 

photo "really looks like" the robber. It was only after 

Det. Bonn and Det. Wilber removed two of the photos from the 

array, showed Plasker the remaining six photos again, and 

reminded Plasker during the second presentation that she had 

previously said Plaintiff's photo looked similar to the robber 

that Plasker then identified the photo of Plaintiff. Even then 

Plasker qualified the identification as having only "70-percent" 

certainty. 

The Magistrate Judge found, and this Court agrees, Det. Bonn 

and Det. Wilber used an impermissibly suggestive photo 

identification procedure with Plasker. As a result, her 

identification was not sufficiently reliable based on, among 

other things, her opportunity to view the suspect at the time of 

the crime, the degree of her attention at the time of the 

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robbery, her accuracy of prior descriptions of the suspect, and 

her level of certainty at the time of the incident. See Grant v. 

City of Long Beach, 315 F.3d 1081, 1087 (9th Cir. 2002). 

Accordingly, Plasker's identification does not support a 

probable-cause finding. 

In Grant the Ninth Circuit held "[u]nder the law of this 

Circuit, mere resemblance to a general description of a suspect 

is not enough to establish probable cause." Id. at 1088. 

Accordingly, the Grant court found the plaintiff's resemblance to 

a general physical description did not provide the officers with 

probable cause to arrest him. 

Here the Magistrate Judge noted the witnesses also provided 

merely generic descriptions of the robber as to his height, 

weight, facial hair, and clothing. Because of such generic 

descriptions combined with the witnesses' equivocal 

identifications of Plaintiff in the photo arrays, the officers' 

failure to investigate the validity of Plaintiff's prescription 

and the possible alibi it may have provided him, and the 

officers' failure to identify earlier the fingerprint on the 

pharmacy robbery demand note, the Magistrate Judge concluded the 

officers did not have probable cause to arrest Plaintiff. 

Although the Court agrees with the Magistrate Judge that it 

is a close call as to whether Plaintiff has established the lack 

of probable cause as a matter of undisputed fact and law, the 

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Court, after reviewing the record de nova, adopts the Magistrate 

Judge's findings and recommendation that the identifications by 

the witnesses were inadequate and sufficiently unreliable to 

support probable cause to support Plaintiff's arrest as a matter 

of law. 

II. Prosecutoria1 Independence 

Defendants also contend they are entitled to summary 

judgment on the federal and state malicious-prosecution claims 

because Plaintiff has failed to rebut the presumption of 

independent judgment by the state prosecutor when he determined 

there was probable cause to arrest Plaintiff and decided to file 

criminal charges against Plaintiff. 

The decision to file a criminal complaint is presumed to 

result from an independent determination on the part of the 

prosecutor and, thus, precludes any liability of those who 

participated in the investigation or filed a report that resulted 

in the initiation of proceedings. Awabdy v. City of Adelanto, 

368 F.3d 1062, 1067 (9th Cir. 2004). That presumption, however, 

does not bar a § 1983 malicious-prosecution claim against an 

official who improperly exerted pressure on the prosecutor, 

knowingly provided misinformation, concealed exculpatory 

evidence, or otherwise engaged in wrongful or bad-faith conduct 

that was instrumental in causing the initiation of legal 

proceedings against an individual. Id. 

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The Magistrate Judge found Plaintiff presented sufficient 

evidence to permit a reasonable trier of fact to infer that 

Defendant Bonn's conduct compromised the prosecutor's independent 

judgment. After reviewing the record de nova, the Court adopts 

the Magistrate Judge's findings and recommendation and concludes 

a genuine dispute of material fact exists that precludes summary 

judgment as to this issue. 

III. Qualified Immunity 

The individual Defendants next contend they are entitled to 

qualified immunity because their actions did not violate any 

clearly-established constitutional right of the Plaintiff. 

"Public officials are immune from suit under 42 U.S.C. 

§ 1983 unless they have 'violated a statutory or constitutional 

right that was clearly established at the time of the challenged 

conduct."' City & Cty. of San Francisco. v. Sheehan, 135 S. Ct. 

1765, 1774 (2015) (citation omitted). 

When a police officer asserts qualified immunity, the court 

must apply a two-part analysis. Grant v. City of Long Beach, 315 

F. 3d 1081, 1089 (9th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 

194 (2001)). "The first question is whether the facts, when 

taken in the light most favorable to [plaintiff], show that the 

officers' conduct violates a constitutional right. The 

second question is whether the constitutional right at issue is 

'clearly established.'" Grant, 315 F.3d at 1089. 

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"The linchpin of qualified immunity is the reasonableness of 

the official's conduct." Rosenbaum v. Washoe County, 663 F.3d 

1071, 1075 (9th Cir. 2011) (citing Pearson v. Creighton, 483 U.S. 

635, 638-39 (1987). The Rosenbaum court, elaborating on the 

qualified immunity analysis as it applies to unlawful arrest, 

summarized the two prongs as follows: "(l) whether there was 

probable cause for the arrest; and (2) whether it is reasonably 

arguable that there was probable cause for arrest--that is, 

whether reasonable officers could disagree as to the legality of 

the arrest such that the arresting officer is entitled to 

qualified immunity." Rosenbaum, 663 F.3d at 1076 (citing Jenkins 

v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)) (noting an 

officer will not be entitled to qualified immunity "if officers 

of reasonable competence would have to agree that the information 

possessed by the officer at the time of arrest did not add up to 

probable cause.")) 

The Magistrate Judge found the individual Defendants were 

not entitled to qualified immunity on the grounds that they 

violated Plaintiff's Fourth Amendment right by arresting him 

without probable cause, and a reasonable officer would not have 

believed there was probable cause to arrest Plaintiff under the 

totality of these circumstances. 

Again the Court agrees with the Magistrate Judge that it is 

a close call as to whether the officers are entitled to qualified 

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immunity under these specific circumstances. After reviewing the 

record de nova, however, the Court adopts the Magistrate Judge's 

findings and recommendation and, accordingly, concludes the 

individual Defendants are not entitled to qualified immunity as a 

matter of law. 

In summary, this Court has carefully considered Defendants' 

Objections and concludes they do not provide a basis to modify 

the Findings and Recommendation. The Court also has reviewed the 

pertinent portions of the record de nova and does not find any 

error in the Magistrate Judge's Findings and Recommendation. 

CONCLUSION 

The Court ADOPTS Magistrate Judge Papak's Findings and 

Recommendation (#72) and, therefore, GRANTS Plaintiff' Motion 

(#46) for Partial Summary Judgment against Defendants Wilber, 

Bonn, and Schrader only on Plaintiff's First and Third Claims for 

false arrest under federal and state law; GRANTS in part 

Defendants' Motion (#50) for Summary Judgment as to Defendant 

City of Hillsboro only on Plaintiff's federal and state claims 

for false arrest (First and Third Claims) and malicious 

prosecution (Second and Fourth Claims), but otherwise DENIES the 

remainder of Defendants' Motion; and DENIES as moot Defendants' 

Motion to Strike included in Defendants' Response (#67). 

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The Court returns this matter to the Magistrate Judge for 

further proceedings. 

IT IS SO ORDERED. 

Q)\ DATED this If day of November, 2016. 

ANNA~~ United States District Judge 

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