IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

SIR GIORGIO SANFORD CLARDY 

Plaintiff, 

vs. 

OFFICER BRIAN GAUNT, et al., 

Defendants. 

AIKEN, Judge: 

No. 3:14-cv-01055-CL 

ORDER 

Magistrate Judge Clarke filed his Findings and Recommendation on June 30, 2016. The 

matter is now before me pursuant to 28 U.S.C. § 636(b)(l)(C) and Fed. R. Civ. P. 72(b)(3). 

Objections have been filed, so this Court makes a "de novo determination of those portions of the 

report ... to which objection is made." 28 U.S.C. § 636(b)(l)(C); accord Fed. R. Civ. P. 72(b)(3); 

Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). 

I have reviewed this matter de novo. I depart from Judge Clarke's reasoning in only one 

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respect. To the extent plaintiffs Fourth Amendment claims arise out of the June 23 stop in the hotel 

parking lot and seizure of plaintiffs phone, they are not barred by Heckv. Humphrey, 512 U.S. 477 

(1994). Heck requires a court to ask "whether a judgment in favor of the plaintiff would necessarily 

imply the invalidity of his conviction or sentence." Id. at 487. At plaintiffs criminal trial in state 

court, the judge suppressed the evidence gathered in connection with the June 23 1 stop and search. 

See Clardy Deel. Ex. 8 at 1 Apr. 6, 2015 (doc. 85-1at32) (motion to suppress "the use in evidence 

of the contents of Defendant's telephone, computer and/ or his backpack and duffel bag"); id. Ex. 16 

at 3 (doc. 85-1 at 86) (state "conceding the suppression motion and the stop ... and the search of his 

cell phone based on the fact that we have a witness who is pretty severe ill-health ... and is unable 

to come today."). Accordingly, whether that evidence was obtained in violation of plaintiffs Fourth 

Amendment rights has no bearing on the validity of his criminal conviction. 

I agree with Judge Clarke that even if the search of the phone violated plaintiffs Fourth 

Amendment rights, defendants are entitled to qualified immunity with respect to that search. 

However, qualified immunity does not bar plaintiffs challenge to the June 23 stop. Plaintiff alleges 

he was stopped "because he was a black man seen walking through the parking lot of the motel." 

Clardy Deel. Ex. 1 at 4 Apr. 6, 2015 (doc. 85-1 at 4). A stop based on racial profiling would violate 

plaintiffs clearly established Fourth Amendment rights. See Melendres v. Arpaio, 695 F.3d 990, 

1000 (9th Cir. 2012) ("Absent suspicion that a suspect is engaged in, or is about to engage in, 

criminal activity, law enforcement may not stop or detain an individual." (citation and quotation 

marks omitted)). 

1 At one point, the state court transcript gives June 24 as the date of the challenged stop. 

This appears to be an error. The same transcript refers to "the June 23rd motion" and there is no 

indication plaintiff was stopped by the authorities on June 24. 

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Nonetheless, defendants are entitled to summary judgment on all the Fourth Amendment 

claims. Plaintiff has failed to point to any evidence in the summary judgment record suggesting he 

was stopped because of his race. Moreover, the record contains ample evidence the stop was based 

on the officers' investigation and the phone call between Detective Gaunt and Stephanie Stuart. 

Plaintiff therefore has failed to show a genuine issue of material fact with respect to whether the stop 

violated his Fourth Amendment rights. See Villiarimo v. Aloha Air, Inc., 281F.3d1054, 1061 (9th 

Cir. 2002) ("[S]elf-serving testimony uncorroborated by other evidenced[ oes] not create a genuine 

issue of material fact"). 

Plaintiff contends Judge Clarke erred by recommending dismissal of this case with prejudice, 

citing his two pending motions to file an amended complaint. See Docs. 4 7, 56. "Dismissal without 

prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the 

complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316, F .3d 

1048, 1052 (9th Cir. 2003 ). Here, dismissal with prejudice is warranted because amendment would 

be futile. Even with plaintiffs proposed amendments, this Court still would be bound to grant 

defendants' motion for summary judgment on the federal claims because (1) Detective Gaunt 

consented to interception of the call, dooming plaintiffs claims under 18 U.S.C. § 2511; (2) 

qualified immunity bars the Fourth Amendment claims related to the search of plaintiffs phone; (3) 

there is no genuine issue of material fact with respect to the Fourth Amendment claims related to the 

June 23 stop; and (4) any remaining Fourth Amendment claims are barred by Heck. It is not 

necessary to consider the effect of the proposed amendments on plaintiffs state claims, because this 

Court declines to exercise supplemental jurisdiction over those claims in the absence of a viable 

federal claim. 

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Finally, I must address plaintiffs two pending discovery requests: a motion to compel 

defendants' production of certain documents, and a motion to take depositions. 2 Plaintiffs motion 

to compel discovery is moot to the extent it addresses the conduct of Sheriff Daniel Staton, who was 

dismissed as adefendantinMarch2015. See Doc. 71. Theremainderofthemotion to compel seeks 

production of "[a]ny and all logs, lists or other documents reflecting complaints filed against any 

defendant in this case reflecting the[ir] conduct from January 1, 2004 to the date of [defendants'] 

response [and] any and all memorand[ a], investigative files, or other documents created in response 

to such documents." Pl's Mot. Compel Ex. 1 at 3. The motion is denied because "the burden or 

expense" of producing ten years' worth of personnel files for twelve defendants "outweighs [the] 

likely benefit" of the proposed discovery. Fed. R. Civ. P. 26(b)(l). 

Plaintiff also filed a motion to take defendants' depositions. Defendants opposed that motion 

on the ground of qualified immunity. As explained, qualified immunity is not a complete bar to 

plaintiffs Fourth Amendment claims because plaintiff alleges he was stopped because he is black. 

Nonetheless, plaintiffs motion to take depositions is denied. The summary judgment record -

which includes ample documentary discovery from defendants - contains not a shred of evidence 

corroborating plaintiffs racial profiling allegations. It is exceedingly unlikely deposing defendants 

would produce such corroborating evidence. Plaintiffs motion to take depositions is denied because 

2 Defendants argue this Court should not reach plaintiffs discovery objections because 

plaintiff did not raise those objections in his response to the motion for summary judgment. This 

"waiver" argument is without merit, because plaintiff properly presented his discovery arguments 

to Judge Clarke via separate motions before defendants filed their motion for summary judgment. 

Similarly, defendants oppose plaintiffs request to "reopen" discovery eighteen months after 

discovery closed. But plaintiff filed his discovery motions before the close of discovery; in fact, 

defendants asked this Court to defer ruling on the motion to take depositions until after resolving 

the motion for summary judgment. Plaintiff properly preserved his discovery arguments. 

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the burden of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(l). 

I ADOPT the Report and Recommendation of Magistrate Judge Clarke (doc. 130), as 

modified above. Defendants' motion for summary judgment (doc. 62) is GRANTED and this case 

is DISMISSED with prejudice. Plaintiffs pending motions to compel discovery and take 

depositions (docs. 52 and 55) and to file an amended complaint (docs. 47 and 56) are DENIED. 

Plaintiffs request for oral argument is denied as unnecessary. 

Any appeal from this order or judgment would be frivolous and not taken in good faith. 

Therefore, plaintiff's in forma pauperis status is revoked. 

IT IS SO ORDERED. 

©c!-ob-tV' 

Dated this _:,day of ~f'ternbct 2016. 

Ann Aiken 

United States District Judge 

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