IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ADAM MICHAEL HORSTMAN, 

Plaintiff, No. 3:15-cv-00203-PK 

v. 

FINDINGS AND RECOMMENDATION 

CITY OF HILLSBORO, et al., 

Defendants. 

PAP AK, Magistrate Judge: 

Plaintiff Adam Horstman brings this action against defendants David Bonn, Brian 

Wilber, Ted Scluader (collectively, the "officer defendants"\ and City of Hillsboro (the "City"). 

Horstman asserts four claims: (1) false arrest in violation of the Fourth and Fourteenth 

Amendments; (2) false arrest in violation of Oregon law; (3) malicious prosecution in violation 

of the Fouiih and Fomieenth Amendments; and ( 4) malicious prosecution in violation of Oregon 

law. Horstman asserts his false anest claims against all of the defendants and his malicious 

1 I recognize that defendants Bonn and Wilber are detectives and defendant Schrader is a 

sergeant. I use the te1m "officer defendants" for brevity. 

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prosecution claims against defendants Bonn and the City only. Horstman brings his federal false 

arrest claim and federal malicious prosecution claims under 42 U.S.C. § 1983. 

Now before the court is Horstman's Motion for Partial Summary Judgment, ECF No. 46; 

Defendants' Motion for Summary Judgment, ECF No. 50; and Defendants' Motion to Strike. 

Horstman moves for summaty judgment establishing Defendants' liability on his state and 

federal false arrest claims; he leaves the issue of damages for trial. Defendants move for 

summary judgment on all ofHorstman's claims. For the reasons below, the parties' CrossMotions for Summmy Judgment should be granted in part and denied in part, and Defendants' 

Motion to Strike should be denied. 

BACKGROUND2 

The officer defendants are members of the Hillsboro Police Depatiment ("HPD"). This 

case arises out of the officer defendants' July 4, 2014 arrest of Horstman in connection with four 

separate pharmacy robberies. The first robbe1y occmTed at a Rite Aid pharmacy in Hillsboro, 

Oregon on May 18, 2014. Merrithew Deel. Ex. A, at 3, ECF No. 47-1. The robber escaped with 

a large amount of prescription opiates. Merrithew Deel. Ex. A, at 3. Upon arriving at the 

pharmacy, HPD Officers M. Herrnan and James Weed learned from witnesses that the suspect 

entered the store, displayed a gun, and demanded OxyContin. Merrithew Deel. Ex. A, at 3. 

Store surveillance video did not record the suspect brandishing a gun or provide a clear view of 

his face. Merrithew Deel. Ex. A, at 3. The responding officers observed from the video that the 

suspect had a "dark neatly manicured beard" and appeared to be wearing a black zip up jacket, a 

black baseball cap, black pants, and black and white shoes. Merrithew Deel. Ex. A, at 3. 

2 Except where expressly indicated otherwise, I construe the evidentiaty record according to the 

legal standard governing motions for summmy judgment under Federal Civil Procedure Rule 56. 

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The responding officers interviewed two witnesses, employees Brij Patel and Jovencio 

Domingo. Me1Tithew Deel. Ex. A, at 4. Patel described the suspect as a white male adult 

approximately 5' 11" to 6'1" tall, 200 pounds, with a beard, and having a muscular build. 

Merrithew Deel. Ex. A, at 4. Patel fmiher stated that the suspect was wearing a black zip up 

hooded sweatshirt and black baseball cap. Me1Tithew Deel. Ex. A, at 4. 

Domingo said the suspect was an adult white male with dark facial hair, standing around 

5'11" with a muscular build. Merrithew Deel. Ex. A, at 4. He further stated that the suspect was 

wearing a baseball cap with an orange logo, a black zip up jacket, and dark jeans. Menithew 

Deel. Ex. A, at 4. 

The second robbery occmTed on June 3, 2014 at an Albertsons pharmacy in 

Hillsboro, Oregon (the "first Albertsons robbe1y"). The robber again escaped with a large 

amount of prescription opiates. Responding HPD Officer Kelly Hickman interviewed witness 

Richard Glatt. Merrithew Deel. Ex. B, at 3, ECF No. 47-2. Glatt told Hickman that at 

approximately 9:00 p.m., a man entered the pharmacy and gave him a yellow sticky note that 

read, "gimme all of your Oxycodine and Ambien, and don't call the cops." Menithew Deel. Ex. 

B, at 3. Glatt described the suspect as a white adult male who was about 5'8", weighed about 

210 pounds, and wore blackjeans, a black hooded sweatshirt, and black sunglasses. Menithew 

Deel. Ex. B, at 3. Glatt did not report that the suspect had a beard. 

The third robbery took place on June 18, 2014 at a different Albe1isons pharmacy, this 

one in Beave1ion, Oregon (the "second Albertsons robbe1y"). The robber again made off with a 

large amount of prescription opiates. Merrithew Deel. Ex. D, at 3. Beaverton Police responded 

to the scene of the crime and spoke with phaimacist Diana Yousseff, who witnessed the crime. 

Menithew Deel. Ex. D, at 3. Y ousseff described the suspect as a white male adult who appeared 

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to be in his mid-thirties. Me1Tithew Deel. Ex. D, at 3. The suspect was wearing black 

sunglasses, a black hooded sweatshirt, black pants, a black baseball hat with a white logo on the 

front, and black tennis shoes with white soles. Merrithew Deel. Ex. D, at 3. 

The final robbe1y took place on June 30, 2014 at a third, separate, Albertsons phm-macy 

also in Hillsboro, Oregon (the "third Albe1isons Robbery"). Consistent with the first three 

robberies, the suspect stole a large amount of prescription opiates. HPD Officers Jincy Pace and 

Mox Hermann responded to the call and spoke with several witnesses. Merrithew Deel. Ex. E, at 

5, ECF No. 47-5. Pace first spoke with pharmacy employee Sheni Plasker, who described the 

suspect as a white male who was 5'10" with a full, brownish-red beard. Me1Tithew Deel. Ex. E, 

at 5. She fu1iher repo1ied that the suspect was wearing black shoes with white soles, black pants, 

a puffy black jacket with a hood, a black baseball cap, and black sunglasses. Mel1'ithew Deel. 

Ex. E, at 5. Plasker stated that the robber gave her a note demanding Oxycodone and Am bi en. 

Merrithew Deel. Ex. E, at 5. Plasker told Pace that she did not think she would be able to 

subsequently identify the suspect. Merrithew Deel. Ex. T, at 7, ECF No.47-20. 

Pace also interviewed pharmacy employee Ryan Cleven, who described the suspect as a 

white adult male who had a full beard and was dressed in black clothing. As with Plasker, 

Cleven told Pace that he was unsure ifhe would recognize the suspect. Menithew Deel. Ex. T, 

at 7. 

Pace and Hermann reviewed the pharmacy's surveillance video. Pace noted that the 

suspect appeared to be a male who was wearing dark clothing, a black jacket, black baseball cap, 

and black sunglasses. Merrithew Deel. Ex. T, at 8. The suspect also appeared to have a full, 

reddish-brown beard and was wearing black tennis shoes with white soles. Me1Tithew Deel. Ex. 

T, at 8. The suspect was not wearing gloves. Merrithew Deel. Ex. T, at 8. Pace noted that the 

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video quality was poor, and the suspect's face appeared somewhat bluny. Merrithew Deel. Ex. 

T, at 8. 

Unlike the previous robberies, the suspect left his demand note at the pharmacy. Plasker 

gave the note to Pace, who in tum placed it into evidence for fingerprinting. Merrithew Deel. 

Ex. E, at 5. Pace believed the note potentially contained fingerprints from the suspect, which she 

believed could help identify the robber. Merrithew Deel. Ex. T, at 5. However, no immediate 

action was taken to lift fingerprints from the note. Merrithew Deel. Ex. T, at 4-5. The note was 

eventually submitted for fingerprint analysis after Horstman's arrest, resulting in a positive 

identification of the actual perpetrator of all four robberies, a man named Shawn Simmons. 

Merrithew Deel. Ex. G, ECFNo. 47-7. 

At 10:30 p.m. on June 30, 2014, about two hours after the third Albertsons robbery, 

Horstman went to the Hillsboro Rite Aid that had been robbed on May 18 to fill a prescription he 

had just received from St. Vincent's Medical Center in Portland, Oregon. Merrithew Deel. Ex. 

U, at 8-10. Horstman did not attempt to conceal his identity while at the Rite Aid phannacy. 

Merrithew Deel. Ex. ee, ECF No. 47-31. He waited in line patiently while the pharmacist was 

busy assisting other customers. Merrithew Deel. Ex. ee. 

Domingo, the phaimacist who was robbed at gunpoint on May 18, filled Horstman's 

prescription. Merrithew Deel. Ex. F, at 3, Ex. ee, ECF Nos. 47-6, 47-31. Horstman signed his 

name on the pharmacy's electronic keypad to confom his identity in order to receive his 

prescription. See Merrithew Deel. Ex. U, at 10, Ex. ff, ECF Nos. 47-21, 47-32. He left Rite Aid 

with his prescription at 10:46 p.m. Merrithew Deel. Ex. U, at 8-10. 

Shortly thereafter, Rite Aid's assistant manager called 911 and repo1ied that Horstman 

looked like the person who had previously robbed the pharmacy. Merrithew Deel. Ex. F, at 3, 

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Ex. hh, ECF Nos. 47-6, 47-34. HPD Officer Jordan Schreiner responded to the repo1i. 

Merrithew Deel. Ex. F, at 3, Ex. hh. Schreiner took statements from Domingo and another 

employee, Brandee Mears. 

Domingo told Schreiner that he was "approximately 90 percent sure" that Horstman was 

the person who had committed the May 18 robbery. Merrithew Deel. Ex. F, at 4. Mears told 

Schreiner that she was "80 percent" sure that Horstman was the person who had committed the 

May 18 robbe1y. Merrithew Deel. Ex. F, at 4. Schreiner asked to see the actual prescription 

order that Horstman brought to the store, and Domingo showed it to him. Merrithew Deel. Ex. 

F, at 4. Schreiner could see from the prescription that Horstman had been issued a prescription 

for Hydrocodone Acetaminophen that same day by Janice A. Tsuchida. Merrithew Deel. Ex. U, 

at 6-10, ECF No. 47-21. Schreiner failed to follow up on that information. 

The following morning, July 1, 2014, Officer Weed returned to the Rite Aid pharmacy 

with a photo anay that included Horstman's photo. Menithew Deel. Ex. kk, at 3 (#47-37). 

Weed presented the photo anay to both Mears and Domingo, neither of whom conclusively 

identified Horstman as the robber. Domingo was unable to make any identification. Menithew 

Deel. Ex L, Ex. kk, at 3, ECF Nos. 47-12, 47-37. Mears nanowed the photos down to two men 

who "may" have been the suspect, one of whom was Horstman. Menithew Deel. Ex. K, ECF 

No. 47-11. 

By July 1, 2014, Defendants had concluded that all four of the robberies were committed 

by the same man. Menithew Deel. Ex. V, at 8-10, Ex. Y, at 6, ECF Nos. 47-22, 47-25; 

Edenhofer Deel. Ex. 1, at 23-24, ECF No. 53-1. Defendants believed Horstman was the culprit. 

Merrithew Deel. Ex. V, at 8-10, Ex. Y, at 6, ECF Nos. 47-22, 47-25; Edenhofer Deel. Ex. 1, at 

23-24, ECF No. 53-1. 

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On July 2, 2014, defendant Wilber, an HPD detective, met with Ryan Cleven, a witness 

to the third Albertsons robbery. Menithew Deel. Ex. J, at 3, ECF No. 47-10. Wilber showed 

Cleven a photo anay containing Horstman's photo. Cleven was unable to conclusively identify 

Horstman or any other suspect. Menithew Deel. Ex. J, at 3. Rather, Cleven was only able to 

narrow down the photos to three individuals, including Horstman. Merrithew Deel. Ex. J, at 3. 

Wilber also met with Plasker on July 2, 2014. Edenhofer Deel. Ex. 3, at 5, ECF No. 53-

3. Wilber was accompanied by defendant Bonn, who is also an HPD detective. Wilber showed 

Plasker the same photo anay he had shown Cleven. Edenhofer Deel. Ex. 3, at 5, Ex. 7. Wilber 

presented the photos to Plasker twice. Merrithew Deel. Ex. X, at 9-12, ECF No. 47-24. Upon 

the first viewing, Plasker noted that Horstman's photo looked like the robber. Menithew Deel. 

Ex. X, at 11-12; Edenhofer Deel. Ex. 7. Dming the subsequent viewing, Wilber and Bonn 

reminded Plasker that she had suggested Horstman was the culprit. Menithew Deel. Ex. X, at 

11-12. Plasker then formally identified Horstman as the robber with "70 percent" certainty. 

Menithew Deel. Ex. J, at 4, ECF No. 47-10. 

On July 4, 2014, HPD officers anested Horstman without a wanant on robbe1y and theft 

charges connected to all four robberies. Merrithew Deel. Ex. I, at 2, ECF No. 47-9. One of the 

arresting officers was defendant Schrader. Schrader had previously learned of Horstman' s 

family through a child welfare investigation and a domestic dispute investigation, both of which 

involved only Horstman's wife, Christle Horstman, and her daughter. See Merrithew Deel. Ex. 

P, at2-6, Ex. Q at 3, ECFNos. 47-16, 47-17. 

After his arrest, Horstman consented to a search of his home. Merrithew Deel. Ex. V, at 

15, ECF No. 47-22. Defendants' search did not reveal any instrumentalities or fruits of any of 

the pharmacy robberies. Merrithew Deel. Ex. V, at 24. Defendants did find a dark jacket, hat, 

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and shoes. Edenbofer Deel. Ex. 1, at 30-31, ECF No. 53-1. They also discovered about 12 

prescription pill bottles, but all of the pills were obtained through valid prescriptions. Merrithew 

Deel. Ex. Y, at 9, ECF No. 47-25. 

Wilber then interrogated Horstman for several hours, first at his home and then at the 

HPD station. Horstman maintained his innocence throughout the inte1Togations. However, 

during the inten·ogation at the police station, Wilber handed Horstman a photo from surveillance 

video of the Rite Aid robbe1y and the following exchange ensued: 

Wilber: Okay. Does that look like the same person to you? 

Horstman: Yes, sir. 

Wilber: Is that you? 

Horstman: Yes, sir. 

Merrithew Deel. Ex. jj, at 8, ECF No. 47-36. Horstman immediately realized his mistake and 

spent the remainder of the interrogation insisting that he was not the person in the photograph. 

Merrithew Deel. Ex. jj, at 10-44. 

Bonn subsequently drafted a probable cause affidavit and presented it to Washington 

County Deputy District Attorney Jeff Lesowski for the purpose of charging Horstman. 

Merrithew Deel. Ex. I., Ex. V, at 17, ECF Nos. 47-9, 47-22; Lesowski Deel. iJ 8, ECF No. 52. 

Lesowski charged Horstman, and he was held in the Washington County Jail until July 9, 2014, 

when the charges against him were dismissed. 

SUMMARY JUDGMENT STANDARD 

Summary judgment is appropriate "if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. 

P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 

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477 U.S. 242, 248 (1986); Warren v. City a/Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A 

factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for 

the nonmoving party." Anderson, 477 U.S. at 248. The substantive law governing a claim or 

defense determines which facts are material. See iV!oreland v. Las Vegas 1\!Jetro. Police Dep't, 

159 F.3d 365, 369 (9th Cir. 1998). In ruling on a motion for summary judgment, the court must 

draw all reasonable inferences in favor of the nonmoving paity and may neither make credibility 

determinations nor weigh evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 

U.S. 133, 150 (2000); Lytle v. Household J\!Jfg., Inc., 494 U.S. 545, 554-55 (1990). On crossmotions for summary judgment, the court must consider each motion separately to dete1mine 

whether either pmty has met its burden with the facts construed in the light most favorable to the 

other. See Fed. R. Civ. P. 56; see also, e.g., Fair Haus. Council v. Riverside Two, 249 F.3d 

1132, 1136 (9th Cir. 2001). 

DISCUSSION 

The parties present seven primary issues through their Cross-Motions for Summary 

Judgment: (1) whether Defendants had probable cause to arrest Horstman, (2) whether 

Defendants are entitled to qualified immunity, (3) whether there are genuine issues of material 

fact concerning Horstman's municipal liability claims (known as }vfonell claims3

) against the 

City for false arrest and malicious prosecution, ( 4) whether the availability of a state comt 

remedy precludes Horstman's federal malicious prosecution claim, ( 5) whether there are genuine 

issues of material fact concerning whether Lesowski exercised independent judgment in 

charging Horstman, ( 6) whether there are genuine issues of material fact concerning whether 

Defendants acted with malice in obtaining Horstman's prosecution, and (7) whether the Oregon 

To1t Claims Act ("OCA") precludes Horstman's state law claims against the officer defendants. 

3 Fromlvfonell v. Dep't a/Soc. Serve. a/City of New York, 436 U.S. 658, 691 (1978). 

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I address each issue, in turn, below. However, as a preliminary matter, I address the Motion to 

Strike contained in Defendants' Response to Horstman's Motion for Partial Summary Judgment, 

ECFNo. 67. 

I. Defendants' Motion to Strike Should Be Denied As Moot 

Defendants move to strike HPD police repotis attached as exhibits to the Declaration of 

Jesse MetTithew, ECF No. 47. The reports are not offered for the truth of the matters asserted 

therein. Rather, Horstman offers the reports to establish the info1mation possessed by 

Defendants when they detetmined probable cause existed for Horstman's anest. Consequently, 

the repotis are not hearsay. See Fed. R. Evid. 801(c). Defendants' motion to strike the reports 

should therefore be denied. 

Defendants also move to strike the Declaration of Daniel Weisberg, ECF No. 48, and the 

Declaration of Joseph Molinari, ECF No. 49. Defendants contend that the Weisberg Declaration 

is improper expert witness testimony. They contend that the Molinari Declaration is 

unsupp01ied by a proper factual foundation and contains an improper legal conclusion. Both 

declarations relate to whether Defendants had probable cause to anest Horstman. As explained 

below, I conclude that Defendants lacked probable cause for Horstman's anest. In reaching this 

conclusion, I do not rely on the testimony provided by Weisberg or Molinari. Consequently, 

Defendants' motion to strike the Weisberg and Molinari Declarations should be denied as moot. 

II. Defendants Lacked Probable Cause to Arrest Horstman 

Defendants' liability on Horstman's state and federal false atTest claims turns on whether 

they had probable cause to anest Horstman. For the federal claim, 42 U.S.C. § 1983 provides a 

cause of action when a person is deprived of constitutional rights under the color of state law. It 

is undisputed that Defendants acted under the color of state law in anesting Horstman. Thus, the 

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controlling issue, at least for the individual defendants, 4 is whether Defendants violated 

Horstman' s F omih Amendment right to be free from unreasonable seizures. A warrantees arrest 

is unreasonable under the Fou1ih Amendment when it is not supported by probable cause. See, 

e.g., Illinois v_ Gates, 462 U.S. 213, 230 (1983). 

Similarly, the elements ofHorstman's state law false atTest claim are: (1) Defendants 

confined Horstman, (2) Defendants acted intentionally, (3) Horstman was aware of the 

confinement, and ( 4) that the confinement was unlawful. Ross v. City of Eugene, 950 P .2d 372, 

375 (Or. App. 1997). The first three elements of the t01i are undisputed. Therefore, the relevant 

inquiry is whether Defendants' confinement of Horstman was unlawful. Under Oregon law, as 

under federal law, an arrest is unlawful when it is not suppo1ied by probable cause. See Gigler v. 

City of Klamath Falls, 537 P.2d 121, 125 (Or. App. 1975); Gainer v. City of Troutdale, No. 3:14-

cv-01346-SI, 2016 WL 107957, at *10 (D. Or. Jan. 8, 2016); cf Napier v. Sheridan, 547 P.2d 

1399, 1401 (Or. App. 1976) ("Want of probable cause, which must be shown in an action for 

malicious prosecution, is not an issue in a false[]atTest action. Neve1iheless, it is fundamental 

that the atTest must have been a [f]alse arrest, i.e., one made without legal authority. If the arrest 

was lawful, then it was privileged."). Thus, the question of Defendants' liability on both of 

Horstman's false arrest claims turns on whether there was probable cause for Horstman's arrest. 

A. Legal Standard 

"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 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 inqui1y takes into consideration the totality of the 

circumstances existing at the time of the arrest. See id.; United States v. Ortiz-Hernandez, 427 

4 I discuss the City's argument against },Jonell liability below. 

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F.3d 567, 574 (9th Cir. 2005). Consequently, m1'esting officers may not disregard exculpatory 

facts when determining whether probable cause exists. See Yousef/an v. City of Glendale, 779 

F.3d 1010, 1014 (9th Cir. 2015) ("Certainly, an officer may not ignore exculpatmy evidence that 

would 'negate a finding of probable cause."' (quoting Braam v. Bogan, 320 F.3d 1023, 1032 (9th 

Cir.2003)); United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005); see also 

lv!erriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988) ("Under these circumstances, there is 

no probable cause. A reasonable police officer would have made further inqui1y before effecting 

a warrantees arrest."). 

"Probable cause requires 'a probability or substantial chance of criminal activity."' 

}vferriman, 856 F.2d at 1335 (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). 

Although conclusive evidence of guilt is not necessary, "[m]ere suspicion, common rumor, or 

even strong reason to suspect are not enough." lvlcKenzie v. Lamb, 738 F.2d 1005, 1008 (9th 

Cir.1984) (citing Henry v. United States, 361 U.S. 98, 101 (1959)). When the facts used in 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 

earliest possible point in§ 1983 false arrest litigation. Peng v. 1\!lei Chin Penghu, 335 F.3d 970, 

979 (9th Cir. 2003) (citation omitted) (internal quotation mm·ks omitted). 

B. Analysis 

It is undisputed that Defendants based their probable cause dete1mination on the 

following four categories of facts: (1) photo identifications provided by phmmacy employees 

who witnessed the robberies; (2) eyewitness identifications provided by Rite Aid employees who 

were present when Horstman visited that store on June 30, 2014; (3) Horstman's general 

resemblance to the robbe1y suspect seen on the pharmacies' surveillance videos; (4) Horstman's 

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wife's purported history of opiate abuse; (5) pill bottles and clothing found upon the post-anest 

search ofHorstman's home; (6) a post-arrest report and identification by Horstman's landlord 

indicating that Horstman was the suspect who had robbed the Rite Aid pharmacy; and (7) 

Horstman's inaccurate post-arrest admission that he was depicted in a still photo from 

surveillance footage of the Rite Aid robbery. 

Horstman argues that all of the witness identifications were unreliable. He fu1iher argues 

that the photo anay identification procedure used with Plasker was unconstitutionally 

suggestive. Additionally, Horstman argues that Defendants are not permitted to rely on postanest evidence in their probable cause determination. Horstman also argues that the anesting 

officers impermissibly ignored exculpatory evidence. 

I conclude that Defendants lacked probable cause to anest Horstman on July 4, 2014. 

The facts relied on by Defendants in their probable cause determination would not lead a 

reasonable person to believe that Horstman had committed robbe1y or theft. 5 

1. Photo Identifications 

Defendants contend they relied heavily on the photo identifications provided by Plasker, 

Cleven, Domingo, and Mears in dete1mining that they had probable cause to arrest Horstman. 

However, as explained above, it is undisputed that Cleven, Domingo, and Mears failed to 

conclusively identify Horstman in the photo anays presented to them. Thus, the photo 

identifications provided by those witnesses-whether considered alone or with the other facts 

that entered into Defendants' probable cause dete1mination- do not support a finding of 

probable cause. 

5 While "probable cause supports an anest so long as the arresting officers had probable cause to 

anest the suspect for any criminal offense," Torres v. City of Los Angeles, 548 F.3d 1197, 1207 

(9th Cir. 2008), Defendants do not contend that there was probable cause to believe that 

Horstman had committed any offense other than robbe1y and theft in relation to the pharmacy 

robberies. 

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Plasker did affirmatively identify Horstman in the photo array she viewed. However, 

Plasker's identification did not generate probable cause for Horstman's an-est. "The Supreme 

Court has cautioned that '[a] major factor contributing to the high incidence of miscarriage of 

justice has been the degree of suggestion inherent in the manner in which the prosecution 

presents the suspect to witnesses for pretrial identification."' Grant v. City of Long Beach, 315 

F.3d 1081, 1086 (9th Cir. 2002) (alteration in original) (quoting United States v. Wade, 388 U.S. 

218, 228 (1967)), opinion amended on denial of reh'g, 334 F.3d 795 (9th Cir. 2003). Whether 

witness identifications provide probable cause for an arrest involves two related inquiries: 

"(!) Did the officers employ an identification procedme so impennissibly suggestive as to give 

rise to a substantial likelihood of misidentification? And if so, (2) did the witnesses exhibit 

sufficient indicia of reliability to protect the integrity of their identifications?" Id. (citing 

Simmons v. United States, 390 U.S. 377, 384 (1968); United States v. Hanigan, 681F.2d1127, 

1133 (9th Cir. 1982)). 

In this case, the identification provided by Plasker fails both parts of the dual inquiry. 

First, the photo identification procedure employed by Bonn and Wilber was impermissibly 

suggestive. As explained above, on July 2, 2014, Detectives Wilber and Bonn interviewed 

Plasker about the third Albertsons robbery. Edenhofer Deel. Ex. 3, at 5, ECF No. 53-3. The 

detectives presented Plasker with an anay of eight photographs, cine of which depicted 

Horstman. Edenhofer Deel. Ex. 3, at 5, Ex. 7, ECF Nos. 53-3, 53-7. The detectives presented 

the photos to Plasker twice. Menithew Deel. Ex. X, at 9-12, ECF No. 47-24. On the first 

presentation, Plasker did not provide an official identification, but stated that the photo of 

Horstman "really look[ed] like" the suspect in the third Albertsons robbery. Menithew Deel. 

Ex. X, at 11-12; Edenhofer Deel. Ex. 7. The detectives then removed from the array two photos 

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that Plasker said did not depict the suspect and showed her the remaining six photos again. 

Merrithew Deel. Ex. X, at 10. When the photo of Horstman came up during the second 

presentation, the detectives reminded Plasker that she kept saying that it looks similar to the 

robber. See Merrithew Deel. Ex. X, at 11-12. Plasker subsequently identified the photo of 

Horstman with 70 percent certainty. Edenhofer Deel. Ex. 7, at 1. 

A photo identification procedure is impe1missibly suggestive when a photograph of a 

single person is "in some way emphasized." Grant, 315 F .3d at 1087 (quoting Simmons, 3 90 

U.S. at 383 (intemal quotation marks omitted)). Detectives Wilber and Bonn emphasized 

Horstman's photo when they reminded Plasker that she had said it looked like the suspect. The 

detectives reminded Plasker "three or four different times," to which Plasker responded, "I was 

like, I said it that many times?" Merrithew Deel. Ex. X, at 11-12. The fact that the detectives 

were repeating Plasker' s prior statements about the photos does not save the procedure from 

constitutional deficiency, because Plasker did not make an official identification until after the 

detectives' suggestive statements. 

Although the photo identification procedure used with Plasker was impe1missibly 

suggestive, it could still support a probable cause dete1mination if Plasker's identification was 

sufficiently reliable. "Indicia of reliability include: 1) the opportunity to view the criminal at the 

time of the crime; 2) the degree of attention paid to the criminal; 3) the accuracy of the prior 

descriptions of the criminal; 4) the level of certainty demonstrated at the time of confrontation; 

and 5) ... the length of time between the crime and the confrontation." Grant, 315 F.3d at 1087. 

Plasker had only a limited opportunity to view the robber. She stated that he was wearing black 

sunglasses, a baseball cap, and clothing that covered the rest of his body. Merrithew Deel. Ex. 

FINDINGS AND RECOMMENDATION - PAGE 15 

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E, at 5-6, ECF No. 47-5. The majority of the robber's interaction was with Cleven. Officer 

Pace's account of the robbery is infotmative: 

Ms. Plasker was standing at the notih end of the pharmacy counter when she 

noticed a "suspicious" looking man facing the Over-The-Counter (OTC) end-cap 

across from the pharmacy window .... She smTeptitiously requested store 

security walk by, but the man approached the phmmacy counter before anyone 

came to investigation [sic] Ms. Plasker's concerns. She saw the man talking with 

Mr. Cleven and Ms. Plasker tried to determine if Mr. Cleven was okay. The man 

walked toward her, along the half-wall, clearing [sic] trying to see if she was 

calling someone. The man then left and Mr. Cleven told her that they had just 

been robbed. 

Menithew Deel. Ex. E, at 6. Plasker's deposition testimony is consistent with Pace's report. See 

Merrithew Deel. Ex. X, at 4-5 (Plasker testifying that she was unable to get a good look at the 

robber until he came over halfway down the half-wall). Consequently, Plasker could give the 

responding officer only a generic description of the suspect's sex, height, facial hair, and 

clothing. Merrithew Deel. Ex. E, at 6. Her generic description was in no way unique to 

Horstman. See Merrithew Deel. Ex. E, at 6 (police repoti stating: "Ms. Plasker described the 

man as approximately 5'10" with a reddish-brown[,] full beard"). Plasker told the responding 

office that she "was not sure if she would be able to identify [the robber] if she saw him again." 

Menithew Deel. Ex. E, at 6. The first and third reliability factors therefore strongly indicate that 

Plasker's identification was not reliable. 

Plasker stated that she looked at the suspect for about two minutes and tried to take a 

mental note of what the suspect looked like during the robbery. See Edenhofer Deel. Ex. 13, at 

7, 10-11, ECF No. 53-13. The second reliability factor therefore indicates some level of 

reliability. 

FINDINGS AND RECOMMENDATION - PAGE 16 

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However, Plasker was far from certain of her identification of Horstman during the photo 

lineup. She stated that she was only 70 percent certain that he was the robber. Edenhofer Deel. 

Ex. 7, at 1. The fourth factor therefore weighs against a finding of reliability. 

Finally, the detectives showed Plasker the photo airny only two days after the third 

Albe1isons robbe1y. See Edenhofer Deel. Ex. 3, at 25, ECF No. 53-3; Menithew Deel. Ex. B, at 

1, ECF No. 47-2. Therefore, the fifth factor indicates that Parker's identification was reliable. 

Considering all of the reliability factors, I conclude that the circumstances surrounding 

the third Albertsons robbery render Plasker' s identification inadequate to generate probable 

cause for Horstman's arrest. 

2. Eyewitness Identifications 

Defendants also relied on eyewitness identification provided by Rite Aid employees 

Mears and Domingo in dete1mining that they had probable cause to arrest Horstman. As 

explained above, on June 30, 2014, Horstman visited the Rite Aid pharmacy that was previously 

robbed on May 18, 2014. Merrithew Deel. Ex. F, at 4, ECF No. 47-6. While Horstman was in 

the process of filling a prescription, Mears and Domingo identified him as the perpetrator of the 

previous robbery. Menithew Deel. Ex. F, at 4; Edenhofer Deel. Ex. 1, at 11, 25-26, ECF No. 53-

1. The pharmacy's assistant manager called HPD, and Office Schreiner responded. Merrithew 

Deel. Ex. F, at 3; Fraser Deel. Ex. E, at 6, ECF No. 62-5. Domingo told Officer Schreiner that 

he was 90 percent sure Horstman was the person who had previously robbed the pharmacy, and 

Mears similarly stated that he was 80 percent sure that Horstman was the perpetrator. Menithew 

Deel. Ex. F, at 4; Edenhofer Deel. Ex. 1, at 12-13.6 

6 The parties dispute whether Mears contradicted that statement during her subsequent deposition 

testimony. Mears's deposition testimony is ambiguous, and I need not decide whether it was 

contradictory. Assuming, arguendo, that the deposition testimony was not contradicto1y, I 

nevertheless conclude that the identification given by Mears failed to provide probable cause for 

Horstman' s arrest. 

FINDINGS AND RECOMMENDATION - PAGE 17 

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The identifications provided by Domingo and Mears did not generate probable cause for 

Horstman's arrest. When police officers rely on unsolicited eyewitness identifications (i.e. those 

provided in the absence of any sort of lineup procedure) in determining they have probable cause 

for an aiTest, the identification must be sufficiently reliable. See, e.g., Ewing v. City of Stockton, 

588 F.3d 1218, 1224 (9th Cir. 2009). Although witnesses like Domingo and Mears are 

presumed reliable, officers who receive a citizen report must nevertheless examine the basis of 

the witness's knowledge before concluding there is probable cause to make an arrest. See 

Fuller v. },;JG. Jeweby, 950 F.2d 1437, 1444 (9th Cir. 1991) (citation omitted). Thus, a citizen 

informant must still "furnish underlying facts sufficiently detailed to cause a reasonable person 

to believe that a crime had been committed and the named suspect was the perpetrator." Id 

(quoting People v. Ramey, 545 P.2d 1333, 1336 (Cal. 1976)) (internal quotation marks omitted). 

In this case, Defendants failed to garner from Domingo or Mears underlying facts that 

would cause a reasonable person to believe Horstman had committed robbe1y or theft. In fact, as 

explained above, neither Domingo nor Mems were able to conclusively identify Horstman as the 

robber in a photo lineup conducted the following day. Domingo was unable to identify the 

robber from the eight men in the photo array he viewed. Merrithew Deel. Ex. L, ECF No. 47-12. 

Mears was able to say only that two of the eight men may have been the robber. Merrithew 

Deel. Ex. K, ECF No. 47-11. 

Moreover, even assuming, arguendo, that the identifications provided by Domingo and 

Mears did generate probable cause for Horstman's aiTest, Defendants learned of additional 

info1mation that dispelled that probable cause before they arrested Horstman. See United States 

v. Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007) ("In some instances there may initially be 

probable cause justifying an arrest, but additional information obtained at the scene may indicate 

FINDINGS AND RECOMMENDATION - PAGE 18 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 18 of 38
that there is less than a fair probability that the defendant has committed or is committing a 

crime. In such cases, execution of the anest or continuation of the an·est is illegal."); Yousejian 

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 Broam v. 

Bogan, 320 F.3d 1023, 1032 (9th Cir.2003)); see also }vferriman v. Walton, 856 F.2d 1333, 1335 

(9th Cir. 1988) ("Under these circumstances, there is no probable cause. A reasonable police 

officer would have made fu1iher inquiry before effecting a wanantees arrest."). 

The most impo1iant piece of dispelling info1mation was obtained during the June 30 

interview of Domingo and Mears, when Officer Schreiner requested and received the 

prescription order that Horstman had filled at Rite Aid that day. Merrithew Deel. Ex. F, at 4, Ex. 

U, at 6-10, ECF Nos. 47-6, 47-21. The prescription was issued by Janice A. Tsuchida earlier 

that same day. Merrithew Deel. Ex. U, at 6-10. Had Defendants acted on that important piece of 

info1mation, they would have discovered that Horstman had received treatment at St. Vincent's 

hospital from 6:00 p.m. to 9:30 p.m. on June 30, 2014-making it impossible for him to have 

committed the third Albe1isons robbe1y. See Menithew Deel. Ex. R, at 4, ECF No. 47-18; 

Merrithew Deel. Ex. E, at 2,4, ECF No. 47-5. 

Also on June 30, 2014, Officer Schreiner learned from Rite Aid employees and 

surveillance videos that Horstman arrived at the pharmacy just two hours after the third 

Albertsons robbery, in which the robber made off with 417 thhiy-milligram pills of Oxycodone, 

200 fifteen-milligram pills ofOxycodone, and 216 ten-milligram pills of Ambien. See 

Me1Tithew Deel. Ex. E, at 7, Ex. ff, ECF Nos. 47-5, 47-32. In contrast to the robber who had just 

made off with a large amount of prescription opiates, Horstman presented the Rite Aid pharmacy 

with a lawful prescription for a mere 15 pills. See Merrithew Deel. Ex. U, at 8, ECF No. 47-21. 

FINDINGS AND RECOMMENDATION - PAGE 19 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 19 of 38
Additionally, Horstman did not act suspicious during his visit to the Rite Aid that Defendants 

believed he had previously robbed. See Merrithew Deel. Ex. ff, ECF No. 47-32. When it was 

his turn to be served at the pharmacy, Horstman walked directly to the pha1macist and calmly 

handed over his lawful prescription. See Me11'ithew Deel. Ex. U, at 8, Ex. ff. Horstman then 

waited patiently at the pharmacy for about 15 minutes while his prescription was being filled. 

See Me11'ithew Deel. Ex. F, at 4-5, Ex. ff. Horstman did not attempt to conceal his identity at 

any point. See Me11'ithew Deel. Ex. ff. He voluntarily identified himself by presenting his 

prescription and signing the pharmacy's electronic keypad. See Me11'ithew Deel. Ex. U, at 10, 

Ex. ff. 

In light of these facts, after June 30, 2014, Defendants' theory that Horstman was 

responsible for the series of phmmacy robberies was no longer probable. See Lopez, 482 F.3d at 

1073 (new evidence may dispel previously existing probable cause). At the very least, the 

inconsistencies in Defendants' theory, and their inability to obtain a reliable positive 

identification, imposed a duty on them to further investigate the robberies before dete1mining 

that they had probable cause to mTest Horstman. See i'vlerriman, 856 F.2d at 1335. Had 

Defendants fu1iher investigated the robberies, they would have discovered Horstman's alibi for 

the third Albe1isons robbery. They would have also discovered that the demand note recovered 

from that robbe1y-which they had in evidence at that time-<::ontained fingerprints belonging to 

Simmons, not Horstman. Me11'ithew Deel. Ex. G, ECF No. 47-7.7 Consequently, the 

7 Defendants attempt to justify their failure to submit the prints for testing by arguing that they 

did not have time to test for prints before Horstman's arrest. However, the undisputed evidence 

shows that it took only one day to pull prints from the note. See Me1Tithew Deel. Ex. S, at 20, 

ECF No. 47-19 (demand note sent to the Oregon State Police crime lab for forensic examination 

on July 17, 2014, and results received by email on July 18, 2014). Horstman was arrested on 

July 4, 2014. That was four days after the demand note was logged into evidence for fingerprint 

testing and Defendants had obtained facts from the Rite Aid employees that cast serious doubt 

on their theory that Horstman was responsible for the four phmmacy robberies. See Merrithew 

Deel. Ex. E, at 5, Ex. I, at 2, ECF Nos. 47-20, 47-9. 

FINDINGS AND RECOMMENDATION - PAGE 20 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 20 of 38
identifications provided by Domingo and Mears did not generate probable cause for Horstman's 

anest. 

3. Horstman's Resemblance to the Robbery Suspect in the Surveillance 

Videos 

Defendants additionally relied on Horstman's resemblance to images of the robbe1y 

suspect captured by pharmacy surveillance cameras. I have reviewed the surveillance video 

from the Rite Aid robbe1y and find the video quality to be poor at best. See Menithew Deel. Ex. 

ee, ECF No. 47-31. The responding officer noted in his report that the video did not capture a 

clear image of the robber's face. Menithew Deel. Ex. A, at 3, ECF No. 47-1. The officers that 

responded to the first and third Albertsons robberies similarly noted that the poor quality of the 

surveillance videos that captured those robberies, failing to show the suspect in detail. See 

MetTithew Deel. Ex. C, at 3, ECF No. 47-3 ("It should be noted that the quality of the video is 

poor and doesn't show great detail or facial features." (emphasis in original)); Merrithew Deel. 

Ex. T, at 10, ECF No. 47-20 (acknowledging that the video from the third Albertsons robbery 

was bluny and did not adequately depict the robber's face). 

The parties have not submitted the surveillance video from the second Albe1tsons 

robbe1y, or evidence of the quality of that video. However, it is undisputed that the robber wore 

dark sunglasses, a baseball cap, and a hood during the commission of that robbe1y. Menithew 

Deel. Ex. D, at 3, ECF No. 47-4. Therefore, the surveillance video from the second Albertsons 

robbery also would not adequately depict the robber. 

At best, the surveillance footage provided a general description of the suspect-a light 

skinned, stocky male of average height with a beard. Although Horstman fit that general 

description, under the law of the Ninth Circuit "mere resemblance to a general description is not 

enough to establish probable cause." Grant, 315 F.3d at 1088 (citing Washington v. Lambert, 98 

FINDINGS AND RECOMMENDATION - PAGE 21 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 21 of 38
F.3d 1181, 1190-91 (9th Cir.1996)). Consequently, Horstman's resemblance to surveillance 

footage of the robbery suspect did not provide probable cause for Horstman's arrest. 

4. Horstman's Wife's Purported Opiate Abuse 

Defendants also relied on Christle Horstman's pmported history of prescription opiate 

abuse in making their probable cause determination. Defendants' belief that Christle Horstman 

abused opiates was based on previous child welfare and domestic dispute investigations 

involving Christle Horstman and her daughter. Neither of those investigations provided 

probable cause to arrest Horstman. 

The child welfare investigation did not concern Horstman. It occurred eight years before 

his arrest, and before his marriage to Christle Horstman. Menithew Deel. Ex. P, at 2-3, ECF No. 

47-16. The investigation arose during Christle Horstman's divorce from her previous husband. 

Merrithew Deel. Ex. P. Schrader had conducted a home visit with a Depmiment pf Human 

Services investigator and noted that "Christle did not appear to be under the influence of an 

intoxicant and was aware of the current concerns." Merrithew Deel. Ex. P, at 2, 6. Schrader 

further learned that Christle Horstman had lawful prescriptions for Vicodin to treat chronic joint 

pain. Merrithew Deel. Ex. P, at 6. Although Christle Horstman admitted to sometimes taking 

her medications when she did not think she needed to, Schrader ultimately dete1mined that there 

"was a lack of evidence that Christie's prescription medication use/abuse caused a neglectful or 

unsafe living environment for her children." Merrithew Deel. Ex. P, at 6. He nevertheless 

formed the belief that Christle Horstman was addicted to and abused oxycodone, and he shared 

that belief with the other officers who were investigating Horstman as a suspect in the pharmacy 

robberies. Edenhofer Deel. Ex. 2, at 8, ECF No. 53-2. Because the child welfare investigation 

FINDINGS AND RECOMMENDATION - PAGE 22 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 22 of 38
was eight years before Horstman's arrest and had nothing to do with Horstman, it did not 

provide probable cause for his atTest. 

On March 8, 2014, Horstman called the Washington County Sherriffs Office to report a 

dispute between Clu·istle Horstman and her daughter. Merrithew Deel. Ex. Q at 3, ECF No. 47-

17. C!u·istle Horstman had found a bag of what she believed to be drugs in the daughter's room. 

Merrithew Deel. Ex. Q at 3. The only mention of drug use by either Clu'istle Horstman or 

Horstman in the resulting report is as follows: "the daughter told me as her mother continued to 

accuse [her of] using, she returned the favor and began accusing her and Adam [Horstman] of 

abusing pills. I asked her if she had any evidence of this and she said no." Merrithew Deel. Ex. 

Q at 3-4. Because the domestic dispute investigation had little to do with drug use by Clu·istle 

Horstman or Horstman, it was insufficient to provide probable cause for Horstman's arrest. 

5. Post-Arrest Facts 

Finally, I reject Defendants' attempt to rely on post-atTest facts to support their probable 

cause deterrnination. Horstman is correct that evidence gathered subsequent to an arrest is 

irrelevant to the question of probable cause for the arrest. Probable cause must be dete1mined 

based on facts known to the arresting officer at the moment of arrest. See, e.g., Beck v. State of 

Ohio, 379 U.S. 89, 91 (1964) (citations omitted). Consequently, in dete1mining whether 

Defendants had probable cause to arrest Horstman, I do not consider the pill bottles and clothing 

found during the search ofHorstman's home, the report and identification by Horstman's 

landlord, or Horstman's erroneous admission that he was depicted in a still photo from 

surveillance footage of the Rite Aid robbery. 

In sum, none of the facts Defendants relied on in determining that Horstman was 

responsible for the pharmacy robberies, whether considered individually or together, provided 

FINDINGS AND RECOMMENDATION - PAGE 23 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 23 of 38
probable cause for his arrest. Considering the totality of the facts, I conclude that Defendants 

lacked probable cause for Horstman's airnst. 

III. The Officer Defendants Are Not Entitled To Qualified Immunity 

The officer defendants argue that, even ifthere was no probable cause for Horstman's 

arrest, they are nevertheless entitled to summary judgment on Horstman's § 1983 claims for false 

all'est and malicious prosecution. "Public officials are immune from suit under 42 U .S.C. § 1983 

unless they have 'violated a statuto1y or constitutional right that was clearly established at the 

time of the challenged conduct."' City & Cty. of San Francisco. v. Sheehan,_ U.S._, 135 

S. Ct. 1765, 1774 (2015) (citation omitted). As explained below, Horstman's federal malicious 

prosecution claim, like his federal false arrest claim, turns on whether Defendants' arrest of 

Horstman violated his Fourth Amendment rights. Therefore, the pertinent question for 

determining qualified immunity is whether the officer defendants' conduct violated Horstman's 

clearly established constitutional right to be free from umeasonable seizures. 

When a police officer asserts qualified immunity, the court must apply a two-pa1t 

analysis. Grant, 315 F .3d at 1089. "The first question is whether the facts, when taken in the 

light most favorable to [the plaintiff!, show that the officers' conduct violated a constitutional 

right." Id. My conclusion that the officer defendants arrested Horstman without probable cause 

satisfies this initial inquhy. See, e.g., id. 

"The second question is whether the constitutional right at issue is 'clearly established."' 

Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001), recededji"Oln on other grounds by 

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (courts are not required to consider the two 

questions for qualified immunity in sequence)). 

FINDINGS AND RECOMMENDATION - PAGE 24 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 24 of 38
The "relevant, dispositive inquiry in detennining whether a right is clearly established is 

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he 

confronted." Saucier, 533 U.S. at 202. "The plaintiff bears the burden of showing that the right 

at issue was clearly established under this second prong." Sorrels v. 2vfcKee, 290 F.3d 965, 969 

(9th Cir. 2002) (citation omitted). Thus, to withstand Defendants' Motion for Summary 

Judgment on his federal claims, Horstman must show that a reasonable officer would not have 

arrested him based on the witness identifications, his general resemblance to the robbery suspect; 

his wife's purported histmy of opiate abuse; and the evidence gathered after his atrnst. 

Horstman has carried his burden of showing that the officer defendants violated his 

clearly established right to be free from umeasonable seizures. As explained above, Plasker was 

the only witness who conclusively identified Horstman in a photo lineup. However, the lineup 

procedure used with Plasker was impe1missibly suggestive because it emphasized Horstman's 

photo. Fu1thermore, Plasker's identification lacked sufficient indicia of reliability. It is clearly 

established that making an alTest based on a suggestive photo lineup procedure that emphasizes a 

suspect' s photo and leads to an umeliable identification violates the suspect' s constitutional 

rights. See, e.g., Simmons v. United States, 390 U.S. 377, 384 (1968); United States v. Wade, 

388 U.S. 218, 228 (1967); Grant, 315 F.3d at 1086; United States v. Hanigan, 681 F.2d 1127, 

1133 (9th Cir. 1982). 

Nor was it reasonable for the officer defendants to rely on the identifications provided by 

Domingo and Mears in determining they had probable cause to atTest Horstman. It is clearly 

established that police officers must examine the basis of an eyewitness's knowledge before 

concluding there is probable cause to make an atTest. See Fuller v. }vl G. Jewelry, 950 F.2d 

1437, 1444 (9th Cir. 1991). The eyewitness must "fumish underlying facts sufficiently detailed 

FINDINGS AND RECOMMENDATION - PAGE 25 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 25 of 38
to cause a reasonable person to believe that a crime had been committed and the named suspect 

was the perpetrator." Id. (citation omitted) (internal quotation marks omitted). As explained 

above, the officer defendants failed to gather such underlying facts from Domingo and Mears. 

The information the officer defendants obtained from Domingo and Mears instead cast serious 

doubt on their theory that Horstman had committed the four pharmacy robberies. In light of that 

info1mation, Defendants had a clearly established obligation to investigate fmiher before 

aITesting Horstman. See 1Vferriman, 856 F.2d at 1335 ("A reasonable police officer would have 

made fmiher inquiry before effecting a warrantees aITest"). 

As further explained above, the officer defendants determined that Horstman resembled 

the robbery suspect based on surveillance footage from the robberies. However, that footage 

failed to depict the robber in any detail. It is clearly established that an officer may not make an 

aITest based on mere resemblance to a general description. Grant, 315 F.3d at 1088 (citing 

Washington v. Lambert, 98 F.3d 1181, 1190-91 (9th Cir.1996)). 

Additionally, for the reasons provided above, the officer defendants' belief that 

Horstman' s wife abused opiates did not provide probable cause to arrest Horstman. The 

evidence underlying that belief was stale and, to a large extent, irrelevant. Thus, it was not 

sufficient to create a probability that Horstman-or his wife, for that matter-had committed a 

crime. The insufficiency of such evidence is clearly established. See, e.g., 1\Ierriman, 856 F.2d 

at 1335 ("Probable cause requires 'a probability or substantial chance of criminal activity."' 

(quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). 

Finally, as explained above, it is clearly established that an officer may not base probable 

cause for an arrest on evidence gathered after the aITest. That principle derives from the rule that 

FINDINGS AND RECOMMENDATION - PAGE 26 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 26 of 38
probable cause must be detennined on facts known to the arresting officers at the moment of 

arrest. See, e.g., Beckv. State of Ohio, 379 U.S. 89, 91 (1964) (citations omitted). 

In sum, a reasonable officer would not have mTested Horstman based on the facts known 

to the officer defendants when they arrested Horstman. I am mindful that probable cause must 

be dete1mined on the totality of the circumstances. I conclude that under these facts, the Fourth 

Amendment right to be mTested based on probable cause was clearly established, and that a 

reasonable officer would not have believed there was probable cause to an·est Horstman. 

Consequently, the officer defendants are not entitled to qualified immunity. 

IV. The City ls Entitled to Summary Judgment on the Monell Claims 

Horstman asserts his federal claims for false arrest and malicious prosecution against the 

City as well as the officer defendants. Under 1'v!onell, "a municipality cannot be held liable 

solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable 

under§ 1983 on a respondeat superior theory." i'vfonell v. Dep't of Soc. Servs. of City of New 

York, 436 U.S. 658, 691 (1978). Rather, "municipalities may be held liable under§ 1983 only 

for acts for which the municipality itself is actually responsible, that is, acts which the 

municipality has officially sanctioned or ordered." City of St. Louis v. Praprotnik, 485 U.S. 112, 

123 (1988) (citation omitted) (internal quotation marks omitted). To recover from the City, 

Horstman must therefore show that his constitutional injmy was inflicted pursuant to a City 

policy, regulation, custom, or usage. See i'vfonell, 436 U.S. at 690-91. 

The City argues that it is entitled to summmy judgment on Horstman's i\1onell claims 

because, even assuming that Horstman was arrested without probable cause, a reasonable trier of 

fact could not find that the unlawful an·est was caused by a City policy. I agree. 

FINDINGS AND RECOMMENDATION - PAGE 27 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 27 of 38
Horstman argues that a reasonable trier of fact could find that the City had a policy of not 

adequately training its police officers on eyewitness identification procedures. "In limited 

circumstances, a local government's decision not to train ce1iain employees about their legal duty 

to avoid violating citizens' rights may rise to the level of an official government policy for 

purposes of§ 1983." Connick v. Thompson, 563 U.S. 51, 61 (2011). However, a municipality's 

§ 1983 liability "is at its most tenuous where a claim turns on a failure to train." Id To succeed 

on a lvfonell claim based on failure to train, the failure to train "must amount to 'deliberate 

indifference to the rights of persons with whom the [untrained employees] come into contact."' 

Id (alteration in original) (quoting Canton v. Harris, 489 U.S. 378, 388 (1989)). 

Deliberate indifference is "a stringent standard of fault, requiring proof that a municipal 

actor disregarded a known or obvious consequence ofhis action." Id (citation omitted) (internal 

quotation marks omitted). Consequently, a plaintiff proceeding on a failure to train theory must 

establish that the municipality was on notice that an omission in its training program caused 

municipal employees to violate citizens' constitutional rights. Id, 563 U.S. at 61-62 (citation 

omitted). Ordinarily, that showing requires proof of a "pattern of similar constitutional 

violations by untrained employees." Id, 563 U.S. at 62 (2011) (citation omitted). 

However, "in a narrow range of circumstances," a plaintiff can establish deliberate 

indifference without proving a pattern of similar violations. Id., 563 U.S. at 63 (citation omitted) 

(internal quotation marks omitted). The United States Supreme Couii first recognized the theory 

of"single-incident" failure to train liability in Canton v. Harris, 489 U.S. 378 (1989). As the 

Couii recently explained: 

The [Canton] Court posed the hypothetical example of a city that anns its police 

force with firearms and deploys the aimed officers into the public to capture 

fleeing felons without training the officers in the constitutional limitation on the 

use of deadly force .... Given the known frequency with which police attempt to 

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Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 28 of 38
arrest fleeing felons and the "predictability that an officer lacking specific tools to 

handle that situation will violate citizens' rights," the Court theorized that a city's 

decision not to train the officers about constitutional limits on the use of deadly 

force could reflect the city's deliberate indifference to the "highly predictable 

consequence," namely, violations of constitutional rights. 

Connick, 563 U.S. at 63 (citations omitted). 

In Connick, the Supreme Court rejected a failure to train claim against a county 

prosecutor's office based on a single Brady violation by one of its prosecuting attorneys. See 

Connick, 563 U.S. at 63-72. The Court held that the claim failed as a matter of law because the 

plaintiff failed to prove that the district attorney was on notice of, and therefore deliberately 

indifferent to, a need to provide Brady training. Id., 563 U.S. at 59. The Comi found that 

although the district attorney's office failed to provide Brady training, its prosecuting attorneys 

had independent knowledge of Brady principles. Id., 563 U.S. at 57, 64-65. The Cou1i then 

determined that the lack of nuanced training alleged by the plaintiff was not actionable under § 

1983. 

A second significant difference between this case and the example in Canton is 

the nuance of the allegedly necessary training. The Canton hypothetical assumes 

that the armed police officers have no knowledge at all of the constitutional limits 

on the use of deadly force. But it is undisputed here that the prosecutors in 

Connick's office were familiar with the general Brady rule. Thompson's 

complaint therefore cannot rely on the utter lack of an ability to cope with 

constitutional situations that underlies the Canton hypothetical, but rather must 

assert that prosecutors were not trained about particular Brady evidence or the 

specific scenario related to the violation in his case. That so1i of nuance simply 

cannot support an inference of deliberate indifference here. 

Id., 563 U.S. at 67. According to the Connick Court, "showing merely that additional training 

would have been helpful in making difficult decisions does not establish municipal liability. Id., 

563 U.S. at 69. 

Horstman's 1Vfonell claims fail as a matter of law. As stated above, those claims are 

based on the City's purpo1ied policy of not adequately training its police officers on eyewitness 

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identification procedures, which allegedly caused Horstman's unlawful arrest. As in Connick; 

Horstman does not rely on a pattern of similar Fourth Amendment violations to establish his 

1vfonell claims. Rather, Horstman relies a single-incident theory of liability. In suppo1i, 

Horstman cites deposition testimony from HPD Lieutenant Craig Allen, which suggests that 

HPD officers are not formally trained on the following subjects: (1) the most recent Oregon 

Supreme Comi cases on eyewitness identification; (2) probable cause affidavits; (3) photo 

identification lineups; and (4) the reliability of witness statements and identifications. See Fraser 

Deel. Ex. F, at 7-11, ECF No.62-6. 

None of the evidence presented by Horstman would permit a reasonable trier of fact to 

find that the City's failure to train its police officers amounted to a deliberate indifference to 

citizens' rights. At the outset, I note that the line of question presented to Lieutenant Allen was 

specifically and repeatedly limited to the provision of formal training on the above-mentioned 

subjects. See Fraser Deel. Ex. F, at 8. The Connick Court specifically rejected the argument that 

a lack of formal training is sufficient to establish§ 1983 liability for failure to train. 

Thompson suggests that the absence of any formal training sessions about Brady 

is equivalent to the complete absence of legal training that the Cou1i imagined in 

Canton. But failure-to-train liability is concerned with the substance of the 

training, not the paiiicular instructional format. [Section 1983] does not provide 

plaintiffs or courts carte blanche to micromanage local governments throughout 

the United States. 

Connick, 563 U.S. at 68. Additionally, it is undisputed that HPD requires its officers to undergo 

a Field Training Evaluation Program on administering photo identification lineups and drafting 

probable cause affidavits. Edenhofer Deel. Ex. 3, at 25, Ex. 14, at 2-3, ECF Nos. 53-3, 53-14. 

It is also undisputed that HPD detectives, such as defendants Bonn and Wilber, receive 

additional, supplemental training on eyewitness identifications and photo mrny procedures 

through the detective academy and through less formal discussions and briefings. Edenhofer 

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Deel. Ex. 1, at 19, Ex. 3, at 33-34, Ex. 14, at 3, ECFNos. 53-1, 53-3, 53-14); see also Connick, 

563 U.S. at 65 (approving informal training). 

Thus, similar to the prosecutors in Connick, HPD officers have a working knowledge of 

witness identification procedures and probable cause affidavits. Because the officers acquire 

that knowledge through HPD training, Horstman's failure to train claim is even weaker than the 

failure to train claim in Connick-where it was undisputed that the prosecutor's office did not 

provide any training on Brady. Connick, 563 U.S. at 58. Horstman essentially argues that the 

City was required to provide additional and different training to its officers. The Connick court 

expressly rejected that argument. Id., 563 U.S. at 67, 69. 

I conclude that this case does not fall within the narrow single-incident liability exception 

recognized by Canton. Consequently, to succeed on his iVlone!l claims at trial, Horstman would 

have to prove a pattern of similar unlawful arrests by the HPD. See Connick, 563 U.S. at 71-72 . 

Horstman has not offered any evidence of such a pattern. The City is therefore entitled to 

summaiy judgment on Horstman' s federal claims for false atTest and malicious prosecution 

claims. 

V. Availability of a State Court Remedy 

Defendants Bonn and the City argue that they are entitled to summary judgment on 

Horstman's federal malicious prosecution because the state judicial system is capable of 

remedying the wrongs Horstman allegedly suffered at the hands of Defendants. I disagree. 

It is true that "malicious prosecution generally does not constitute a deprivation ofliberty 

without due process of law and is not a federal constitutional t011 if process is available within 

the state judicial systems to remedy such wrongs." Bretz v. Kelman, 773 F.2d 1026, 1031 (9th 

Cir. 1985). However, there is an impo1tant distinction between§ 1983 claims alleging violation 

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of procedural due process rights secured by the Fourteenth Amendment and those alleging a 

violation of rights secured by the Bill of Rights. See generally Robins v. Harum, 773 F.2d 1004, 

1009 (9th Cir. 1985). The Ninth Circuit has held that the existence of a state court remedy does 

not bar a§ 1983 claim based on a Fourth Amendment violation. See id. Horstman's federal 

malicious prosecution claim is based on violations of his Fourth, as well as Fourteenth, 

Amendment rights. See Am. Comp!. 10, ECF No. 45. As this cou1i has previously recognized, a 

"malicious prosecution claim may arise from a violation of the F ou1ih Amendment." Child v. 

City of Portland, 547 F. Supp. 2d 1161, 1166 (D. Or. 2008) (citing Awabdy v. City of Adelanto, 

368 F.3d 1062, 1069 (9th Cir. 2004)). Consequently, the availability of a state comi remedy 

does not bar Horstman's federal malicious prosecution claim. 

VI. The Presumption of Prosecutorial Independence Does Not Apply Here 

Defendants Bonn and the City also argue that Deputy District Attorney Lesowski' s 

decision to charge Horstman broke the chain of causation between their unlawful arrest of 

Horstman and any damages he may have suffered as a result of malicious prosecution. I am 

unpersuaded. 

"A prosecutor's independent judgment may break the chain of causation between the 

unconstitutional actions of other officials and the harm suffered by a constitutional t01i plaintiff." 

Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008). For claims under Fomih 

Amendment, courts within the Ninth Circuit use a rebuttable presumption to address this 

causation issue. See, e.g., Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on 

other grounds by Beck, 527 F.3d at 865. "Filing of a criminal complaint immunizes 

investigating officers ... from damages suffered thereafter because it is presumed that the 

prosecutor filing the complaint exercised independent judgment in determining that probable 

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Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 32 of 38
cause for an accused's an-est exists at that time." Smiddy, 665 F .2d at 266. However, a 

constitutional tott plaintiff can rebut the presumption of prosecutorial independence by showing, 

inter alia, that the police knowingly provided the prosecutor misleading information, concealed 

exculpatory evidence, or acted maliciously or with reckless disregard of the plaintiffs rights. 

See Beck, 527 F.3d at 862; Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). 

Here, Horstman has presented sufficient evidence to pe1mit a reasonable trier of fact to 

find that Bonn's conduct compromised Lesowski's independent judgment. That evidence 

suggests that Bonn knowingly provided Lesowski misinformation about the description of the 

suspect from the various pharmacy robberies. Bonn testified at deposition that he relied on the 

reports of the responding officers in drafting the probable cause affidavit he submitted to 

Lesowski for the purposes of charging Horstman. See Fraser Deel. Ex. A, at 12-14, 17, ECF No. 

62-1; see also Lesowski Deel. if 8, ECF No. 52 (Lesowski states that he reviewed the probable 

cause affidavit prepared by Bonn before charging Horstman). However, Bonn's description of 

the suspect in the probable cause affidavit differed from the police repo1ts' descriptions of the 

various robberies. Bonn provided a consistent description, which matched Horstman's 

description, of the suspect from all of the robberies, but the underlying repotts themselves were 

inconsistent. 

For example, Bonn described the suspect from the Rite Aid robbery as a male "with a 

thick dark colored beard." Merrithew Deel. Ex. I, at 2, ECF No. 47-9. However, the report 

Bonn relied on describes the suspect as a male with a "dark neatly manicured beard." Men-ithew 

Deel. Ex. A, at 3, ECF No. 47-1. Bonn described t.he suspect from the first Albettsons robbery 

as male with a "dark colored beard." Merrithew Deel. Ex. I, at 2, ECF No. 47-9. Conversely, 

the report on which Bonn relied does not mention a beard at all; Bonn simply added that fact. 

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See MeITithew Deel. Ex. B., at 3, ECF No. 47-2. Bonn described the suspect from the third 

Albe1isons robbe1y as a man with a "dark beard." Merrithew Deel. Ex. I, at 2, ECF No. 47-9. 

But the reports on which Bonn relied described suspect's beard as red, brownish-red, and blonde, 

but nowhere do they describe the suspect' s beard as "dark." MeITithew Deel. Ex. E, at 5-7, ECF 

No. 47-5; Fraser Deel. Ex. A, at 17-19, ECF No. 62-1. 

Horstman has also presented evidence that Bonn misrepresented statements Horstman 

made during his interrogation, making it sound as though he admitted to being at the scene of the 

Rite Aid robbery when it occurred. Bonn's entire description of the inte1rngation in his probable 

cause affidavit reads as follows: 

Horstman was interviewed about the robberies. He looked at printouts of security 

camera footage and admitted to being the same person depicted in the first 

incident on 5/18/2014 stating "that's me." He also admitted to being [the] person 

depicted at Rite Aid on 613012014 when he filled the prescription. He did not 

admit to committing any robberies. 

Merrithew Deel. Ex. I, at 3, ECF No. 47-9. Bonn omitted that when Horstman examined the 

photo from the Rite Aid robbery more closely, he realized he was mistaken and repeatedly 

insisted that he was not shown in the photo. Merrithew Deel. Ex. jj, at 4-11, ECF No. 47-36. 

A reasonable trier of fact could infer from this evidence that Bonn's conduct 

compromised Lesowski's independent judgment. Consequently, the presumption of 

prosecutorial independence does not entitle Bonn or the City to summary judgment on 

Horstman's state and federal malicious prosecution claims. 

VII. Malice 

Defendants Bonn and the City further argue that they are entitled to summaiy judgment 

on Horstman's state and federal malicious prosecution claims because Horstman has failed to 

present sufficient evidence of malice. I disagree. 

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Bonn and the City are correct that malice is a necessmy element of both the state and 

federal malicious prosecution claims. See Awabdy, 368 F.3d at 1066 ("In order to prevail on a§ 

1983 claim of malicious prosecution, a plaintiff 'must show that the defendants prosecuted [him] 

with malice and without probable cause, and that they did so for the purpose of denying [him] 

equal protection or another specific constitutional right."' (alterations in original) (quoting 

Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995))); Singh v. 1vfcLaughlin, 297 

P.3d 514, 522 (Or. App. 2013) (elements of a malicious prosecution claim include: "(l) the 

institution or continuation of criminal proceedings; (2) by or at the insistence of the defendant; 

(3) te1mination of such proceedings in the plaintiffs favor; ( 4) malice in instituting the 

proceedings; (5) lack of probable cause for the proceeding; and (6) injmy or damage because of 

the prosecution." (citation omitted)). 

Here, a jmy could infer malice from Defendants' arrest of Horstman without probable 

cause. "Evidence that a defendant initiated an arrest without probable cause is, standing alone, 

generally sufficient to give rise to an inference of malice." Singh, 297 P.3d at 523 (citation 

omitted); accord Gustafeon v. Payless Drug Stores Nw., Inc., 525 P.2d 118, 124 (Or. 1974) ("We 

consistently have held that the jmy may make a finding of malice based upon lack of probable 

cause.'} Additionally, evidence that Bonn knowingly provided Lesowski with misinformation 

about the description of the suspect from the phmmacy robberies, and about Horstman's 

statements during interrogation, would support a finding of malice. Consequently, Horstman has 

shown a genuine issue of material fact on malice. 

VIII. Oregon Tort Claims Act 

Finally, the officer defendants argue that they are entitled to summmy judgment on 

Horstman's state law claims for false arrest and malicious prosecution because, under Or. Rev. 

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Stat.§ 30.265(1), the City is the only proper defendant on those claims. 

In response, Horstman contends that Defendants' argument is based on a prior version of 

section 30.265(1). Under the current version of the statute, Horstman argues he is entitled to 

maintain his claims against the City because he has pleaded damages above the statutory cap. 

Section 30.265 provides, in pertinent pmt, as follows: 

(1) Subject to the limitations of ORS 30.260 to 30.300, eve1y public body is 

subject to civil action for its t01ts and those of its officers, employees and agents 

acting within the scope of their employment or duties, whether arising out of a 

governmental or proprietary function or while operating a motor vehicle in a 

ridesharing anangement authorized under ORS 276.598. 

(3) If an action under ORS 30.260 to 30.300 alleges damages in an amount equal 

to or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the sole 

cause of action for a tmt committed by officers, employees or agents of a public 

body acting within the scope of their employment or duties and eligible for 

representation and indemnification under ORS 30.285 or 30.287 is an action 

against the public body .... 

( 4) If an action under ORS 30.260 to 30.300 alleges damages in an amount 

greater than the damages allowed under ORS 30.271, 30.272 or 30.273, the action 

may be brought and maintained against an officer, employee or agent of a public 

body, whether or not the public body is also named as a defendant. An action 

brought under this subsection is subject to the limitations on damages imposed 

under ORS 30.271, 30.272 or 30.273, and the total combined amount recovered in 

the action may not exceed those limitations for a single accident or occunence 

without regard to the number or types of defendants named in the action. 

Thus, Horstman's interpretation of the statute appears to be correct. Defendants do not 

oppose Horstman's interpretation in their Reply. Consequently, the OTCA does not entitle the 

officer defendants to summary judgment on Horstman's state law claims. 

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Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 36 of 38
CONCLUSION 

For the reasons provided above, the patiies' Cross-Motions for Summaiy Judgment 

should be granted in pmi and denied in part. Horstman' s Motion for Patiial Summaty Judgment, 

ECF No. 46, should be granted to the extent it seeks judgment establishing the officer 

defendants' liability on his state and federal false anest claims. The Motion should be denied in 

all other respects. Defendants' Motion for Summaiy Judgment, ECF No. 50, should be granted 

to the extent it seeks judgment in favor of the City on Horstman's federal claims for false arrest 

and malicious prosecution. The Motion should be denied in all other respects. Defendants' 

Motion to Strike should be denied as well. 

SCHEDULING ORDER 

The Findings and Recommendation will be refened to a district judge. Objections, if 

any, are due fourteen (14) days from service of the Findings and Recommendation. If no 

objections are filed, then the Findings and Recommendation will go under advisement on that 

date. 

If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

NOTICE 

A party's failure to timely file objections to any of these findings will be considered a 

waiver of that party's right to de novo consideration of the factual issues addressed herein and 

will constitute a waiver of the party's right to review of the findings of fact in any order or 

judgment entered by a district judge. These Findings and Recommendation are not immediately 

FINDINGS AND RECOMMENDATION - PAGE 37 

Case 3:15-cv-00203-PK Document 72 Filed 08/17/16 Page 37 of 38
appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(I) 

of the Federal Rules of Appellate Procedure should not be filed until entry of judgment. 

Dated this ) '}r!fa) of August, 2016. 

Honorable Paul Papak 

United States Magistrate Judge 

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