PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANDREW M. GAINER, and WENDY 

GAINER, 

 Plaintiffs, 

 v. 

CITY OF TROUTDALE, SCOTT 

ANDERSON, NICK BOHRER, RODNEY 

WILKERSON, NICHOLAS THOMPSON, 

and TIM FUJI, 

 Defendants. 

Case No. 3:14-cv-01346-SI 

OPINION AND ORDER

Montgomery W. Cobb, MONTGOMERY W. COBB, LLC, 1001 SW Fifth Avenue, Suite 1100, 

Portland, OR 97204. Of Attorneys for Plaintiffs. 

Gerald L. Warren, LAW OFFICE OF GERALD WARREN, 901 Capitol Street NE, Salem, OR 

97301. Of Attorneys for Defendants. 

Michael H. Simon, District Judge.

Plaintiffs Andrew M. Gainer (“Mr. Gainer”) and Wendy Gainer (“Ms. Gainer”) 

(collectively “Plaintiffs”) bring this action under 42 U.S.C. § 1983 against City of Troutdale (the 

“City”), Police Chief Scott Anderson (“Chief Anderson”), Officer Nick Bohrer (“Officer 

Bohrer”), Sergeant Rodney Wilkerson (“Sergeant Wilkerson”), Officer Nicholas Thompson 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 1 of 23
PAGE 2 – OPINION AND ORDER 

(“Officer Thompson”), and Officer Tim Fuji (“Officer Fuji”) (collectively “Defendants”). 

Plaintiffs assert a total of nine claims against Defendants.1

 Mr. Gainer alleges three federal 

claims: (1) violation of the Fourth Amendment right to be free from unreasonable searches and 

seizures; (2) failure to supervise; and (3) violation of the Fourteenth Amendment right to equal 

protection. Mr. Gainer alleges five state tort claims: (1) false arrest; (2) assault; (3) battery; 

(4) malicious prosecution; and (5) negligence. Ms. Gainer alleges one state tort claim: loss of 

consortium. Defendants move for summary judgment on all claims. For the reasons stated below, 

the Court grants Defendants’ motion. 

STANDARDS 

A party is entitled to summary judgment 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). The moving party has the burden of establishing the absence of a genuine 

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view 

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in 

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th 

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling 

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of 

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for 

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted). 

 1

 In their response to Defendants’ motion for summary judgment, Plaintiffs abandoned 

Ms. Gainer’s claim for intentional infliction of emotional distress. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 2 of 23
PAGE 3 – OPINION AND ORDER 

BACKGROUND 

The following facts are undisputed by the parties. Sometime in the late hours of 

August 19 or the early hours of August 20, 2013, Mr. Gainer hit Travis Steele in the face. On 

August 21, 2013, Mr. Steele went to the Troutdale Police Department and spoke with 

Officer Bohrer. Mr. Steele provided Officer Bohrer with medical records showing that Mr. Steele 

had reported to the emergency department of Oregon Health Science University (“OHSU”) on 

August 20, 2013, with a broken jaw and would need reconstructive surgery. On August 22, 2013, 

Officer Bohrer, Officer Fuji, and Sergeant Wilkerson (who was Officer Bohrer’s direct 

supervisor) arrested Mr. Gainer without a warrant immediately outside of the house Mr. Gainer 

shares with Ms. Gainer, his long-term partner (but, legally speaking, not his wife), and their 

daughter. At the time of the arrest, three people—Mr. Steele, Jennifer Flauding, and Brandon 

Armstrong—all claimed to have seen Mr. Gainer punch Mr. Steele without provocation. 

After being read his Miranda rights, Mr. Gainer admitted that he punched Mr. Steele in 

the face, but Mr. Gainer also explained that Mr. Steele swung at him first. Mr. Gainer was 

incarcerated, and a Grand Jury indicted him on August 30, 2013. Dkt. 28-2 at 33. After 

Mr. Armstrong recanted his earlier statement, the District Attorney dismissed the charges against 

Mr. Gainer. Mr. Gainer now argues that he was arrested without probable cause. Mr. Gainer 

asserts that the Troutdale Police Department targeted him because in August 2012, he filed an 

ethics complaint against former Troutdale Mayor Jim Knight. According to Mr. Gainer, the 

police may also have targeted him because he had been involved in some discussions with the 

Oregon Liquor Control Commission about local bars complying with the terms of their licenses. 

See Dkt. 48-1. 

Officer Bohrer was the investigating officer. He started as a reserve officer in 2010 and 

became a full-time officer in November 2012. On August 21, 2013, Officer Bohrer interviewed 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 3 of 23
PAGE 4 – OPINION AND ORDER 

two people, Mr. Steele and Ms. Flauding, in the lobby of the Troutdale Police Department. 

Officer Bohrer observed that the left side of Mr. Steele’s face was visibly swollen. Mr. Steele 

reported that on the night of August 19, 2013, Mr. Gainer assaulted him in the gravel parking lot 

of the Brass Rail Tavern in Troutdale, Oregon. Mr. Steele told Officer Bohrer that he was 

standing in the parking lot while Mr. Gainer talked to Ms. Flauding. Mr. Steele further told 

Officer Bohrer that while Mr. Steele had his back turned away from Mr. Gainer, Mr. Gainer 

“sucker punched him” from behind. Mr. Steele stated that he had gone to OHSU for treatment 

and that x-rays showed that he had a mandibular fracture and an occipital bone fracture from a 

facial blow. While Mr. Steele talked to Officer Bohrer, Officer Bohrer observed him spit blood 

several times. 

Ms. Flauding corroborated Mr. Steele’s account of the night of August 19, 2013. She also 

told Officer Bohrer that after Mr. Gainer punched Mr. Steele, she responded by hitting 

Mr. Gainer three or four times. She further told Officer Bohrer that she had helped Mr. Steele 

leave the parking lot and get into her car. She showed Officer Bohrer dried blood on the inside of 

her car on the passenger-side door, the dash area, the driver-side door, and the steering wheel. 

Officer Bohrer took photographs of the blood. Ms. Flauding also told Officer Bohrer that 

Mr. Gainer is a “high ranking martial artist” and has randomly assaulted other people in the past. 

After the interview with Mr. Steele and Ms. Flauding, Officer Bohrer went to the gravel 

parking lot of the Brass Rail Tavern. He looked for blood but did not find any. Additionally, he 

spoke with a bartender who remembered hearing about an altercation but did not know any 

specifics. In his deposition, Officer Bohrer stated that he did not have any knowledge about 

Mr. Gainer before interviewing Mr. Steele and Ms. Flauding. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 4 of 23
PAGE 5 – OPINION AND ORDER 

Also on August 21, 2013, Mr. Armstrong called the Troutdale Police Department. 

Mr. Armstrong spoke with Officer Thompson. Mr. Armstrong said that as he stood in the gravel 

parking lot of the Brass Rail Tavern, he had seen someone named “Andy” punch “Travis” while 

they were in the upper lot, which is about 40 feet away from the gravel parking lot. Dkt. 47-6 

at 13. According to Mr. Armstrong, “Travis” had done nothing to provoke the punch. Officer 

Thompson made his report about Mr. Armstrong’s call part of the case file, which was available 

to Officer Bohrer, the primary officer for the incident. Officer Bohrer did not participate in the 

phone call with Mr. Armstrong and did not read Officer Thompson’s report. Officer Bohrer did, 

however, become aware of the report’s contents sometime before the morning of 

August 22, 2013. Dkt. 47-6 at 12-14, 24. 

On August 22, 2013, Officer Bohrer, Officer Fuji, and Sergeant Wilkerson went to the 

Gainers’ home around 6:30 AM with the intention of arresting Mr. Gainer if he stepped outside 

of his house. The officers did not have an arrest warrant. Officer Fuji went inside the Gainer’s 

fenced backyard in case Mr. Gainer decided to run out the back door. Officer Bohrer and 

Sergeant Wilkerson went to the Gainers’ front door, and one or both of them knocked several 

times. Mr. Gainer heard knocking on the door for approximately two minutes. Dkt. 28-1 at 46. 

Mr. Gainer, dressed in pants but without shoes or a shirt, opened the front door and saw the two 

officers wearing full police gear. Although Officer Wilkerson had his Taser drawn and held 

down at his right side, Mr. Gainer does not assert that he ever saw the Taser. 

Officer Bohrer asked if they could briefly speak with Mr. Gainer. When Mr. Gainer 

requested to get a shirt on first, one of the officers said it would “only be a minute,” and Mr. 

Gainer then stepped outside. Mr. Gainer asserts that because he has experience training police 

officers in martial arts and because some members of his family are or were in law enforcement, 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 5 of 23
PAGE 6 – OPINION AND ORDER 

he “knew” that his house was surrounded and felt that he had “no choice” but to obey the 

officers’ instructions. Dkt. 42 ¶ 5. According to Mr. Gainer, he believed the officers would use 

force to “ensure [his] compliance.” Id. As soon as Mr. Gainer stepped outside, Officer Bohrer 

handcuffed him. Mr. Gainer does not assert that he suffered any physical injuries during 

handcuffing and stated that the officers “were very respectful.” Dkt. 28-1 at 57. 

After his arrest, Mr. Gainer told Officer Bohrer that he had he had been drinking at the 

Brass Rail Tavern on the night of August 19, 2013, and had danced with Ms. Flauding.2

 Then, 

according to Mr. Gainer, around midnight, he had left the bar and started to walk home. After he 

left the bar, two men and Ms. Flauding chased him down South Buxton Road. Near 146 

South Buxton Road, one of the men, Mr. Steele, swung at Mr. Gainer. Mr. Gainer blocked the 

punch with his arm and then then hit Mr. Steele on the left side of his face. Mr. Gainer tripped 

and fell, and Ms. Flauding started kicking him. Mr. Gainer called the police after the incident, 

but when two officers responded to his home, he said he no longer needed any assistance. 

During his post-arrest interview, Mr. Gainer said he was injured during the incident, but 

Officer Bohrer examined Mr. Gainer’s head and upper torso and did not see any sign of injury. 

Officer Bohrer told Mr. Gainer that he did not believe Mr. Gainer’s story because witnesses said 

the incident happened in the parking lot of the Brass Rail Tavern and Mr. Gainer said it 

happened further up the street. Mr. Gainer offered to show Officer Bohrer his cell phone log 

showing that he called the police after midnight on August 20, 2013, but Officer Bohrer did not 

look at the Mr. Gainer’s cellphone. Officer Bohrer also did not continue his investigation by 

 2

 Mr. Gainer notes that although a video of the interview taken in Officer Bohrer’s patrol 

car confirms that Mr. Gainer said Ms. Flauding asked him to dance, Officer Bohrer erroneously 

wrote in his report that Mr. Gainer said he had asked Ms. Flauding to dance. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 6 of 23
PAGE 7 – OPINION AND ORDER 

trying to identify and interview other potential witnesses based on only first names that 

Mr. Gainer gave him.3

 

Mr. Gainer was charged with Assault II, a Measure 11 crime, which is a felony. He was 

incarcerated for 21 days until his attorney obtained a court order reducing bail to an amount that 

Mr. Gainer could afford to pay. A further investigation, conducted after the Grand Jury 

indictment, confirmed Mr. Gainer’s version of the incident and showed that Mr. Steele, Ms. 

Flauding, and Mr. Armstrong had lied to Officer Thompson, Officer Bohrer, and the Grand Jury 

about the incident.4 In December 2013, the District Attorney dropped all charges against Mr. 

Gainer. This civil lawsuit followed. 

 3

 At oral argument on January 5, 2016, Plaintiffs’ counsel asserted that Mr. Gainer also 

offered to show Officer Bohrer a text message from Ms. Flauding in which she admitted to 

kicking Mr. Gainer. See Dkt. 43-5 at 14. According to Plaintiffs’ counsel, this text message was 

forwarded to Mr. Gainer before his arrest. The text message, however, was sent from Ms. 

Flauding to Trina Antonpoulos, and no evidence in the record suggests that Mr. Gainer had the 

text message on his phone at the time of his arrest. Mr. Gainer’s defense counsel, Jacob 

Wieselman, discussed the text message in a letter to the District Attorney dated October 9, 2013, 

but stated that the text message came from Ms. Flauding’s iPhone. Dkt. 43-5 at 2 n.3. In the 

excerpt of Mr. Gainer’s deposition submitted with Plaintiffs’s response to Defendants’ motion, 

Mr. Gainer does not assert that he had a copy of Ms. Flauding’s text message on his phone or 

that he offered to show such a text message to Officer Bohrer. Dkt. 49-1 at 56. In the excerpt of 

Officer Bohrer’s deposition submitted with Plaintiff’s response to Defendants’ motion, Officer 

Bohrer only discusses Mr. Gainer’s claim that he had records of 9-1-1 calls on his phone; no 

mention is made of Ms. Flauding’s text message. Dkt. 47-6 at 25. When Officer Bohrer was 

asked about Ms. Flauding’s text message, id. at 33, neither Officer Bohrer nor counsel suggests 

that the text message was on Mr. Gainer’s phone on August 22, 2013. Regardless of whether the 

text message was on Mr. Gainer’s phone on August 22, 2013, the text message contains no 

information about whether Mr. Gainer punched Mr. Steele without provocation. 

4

 Mr. Armstrong recanted his entire story, admitting that he had not actually witnessed 

Mr. Gainer hit anyone. Dkt. 26-1 at 3-4. Mr. Steele and Ms. Flauding admitted that they had 

concealed the identity of a third male at the scene of the incident but continued to maintain that 

Mr. Gainer had punched Mr. Steele without provocation. Id. at 9-11. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 7 of 23
PAGE 8 – OPINION AND ORDER 

DISCUSSION 

A. Federal Claims 

To establish a violation of 42 U.S.C. § 1983, Mr. Gainer must prove that Defendants 

acted under color of state law and deprived Mr. Gainer of his constitutional rights. See Dawson 

v. City of Seattle, 435 F.3d 1054, 1061 (9th Cir. 2006). Mr. Gainer argues that Defendants 

violated his Fourth and Fourteenth Amendment rights by executing a warrantless arrest at his 

home without probable cause, failing to supervise and train Officer Bohrer, and arbitrarily 

treating Mr. Gainer differently than other similarly-situated individuals. 

1. Warrantless Arrest 

Mr. Gainer argues that the officers improperly arrested him without a warrant at his 

home. The Fourth Amendment prohibits warrantless felony arrests within the home “absent 

probable cause and exigent circumstances.” Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). The 

threshold of the home marks the line that police officers may not reasonably cross without a 

warrant unless exigent circumstances are present. Payton v. New York, 445 U.S. 573, 590 (1980). 

By opening the door to his or her dwelling, however, a person exposes him or herself to a public 

place. United States v. Vaneaton, 49 F.3d 1423, 1427 (9th Cir. 1995). After a person has exposed 

him or herself to a public place, police officers may execute a warrantless arrest provided that the 

“officers use no force, threats, or subterfuge” to influence “a suspect’s decision to open the 

door.” United States v. Crapser, 472 F.3d 1141, 1148 (9th Cir. 2007). Under these 

circumstances, the suspect may be seized outside the home or “just inside the threshold” of the 

house. Vaneaton, 49 F.3d at 1425. 

Mr. Gainer does not dispute that he opened the door of his house and stepped outside 

before the officers arrested him. He argues, however, that he only stepped outside because he felt 

threatened and that the officers did not have probable cause to arrest him. The questions that 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 8 of 23
PAGE 9 – OPINION AND ORDER 

must be answered to determine whether Mr. Gainer’s arrest violated the Fourth Amendment are: 

(1) whether the officers coerced Mr. Gainer into opening his door and stepping outside by use of 

force or threats;5

 and (2) whether the officers had probable cause to make the arrest. 

a. Coercion 

Mr. Gainer argues that he felt threatened because he saw that the officers had on their full 

gear, including external ballistic vests and guns. According to Mr. Gainer, these circumstances 

constitute coercion and make his warrantless arrest unconstitutional. The Ninth Circuit has 

recognized a constructive Payton violation when a suspect opens the door to his or her home 

“under circumstances of extreme coercion.” United States v. Al-Azzawy, 784 F.2d 890, 893 (9th 

Cir. 1985). For example, a constructive Payton violation occurred when police officers, acting 

without a warrant, completely surrounded a home with weapons drawn and used a bullhorn to 

order a suspect to leave his home and drop to his knees. Al-Azzawy, 784 F.2d at 892-93. In these 

circumstances, “the officers’ show of force and authority was overwhelming” and “[a]ny 

reasonable person would have believed he was under arrest.” Id. at 893. In contrast, the Ninth 

Circuit found that police officers did not use coercion to cause a suspect to open the door when 

officers arrived at the suspect’s motel room wearing their uniforms and with their guns in their 

holsters. Vaneaton, 49 F.3d at 1425. Additionally, a simple request that a suspect exit his or her 

home does not rise to the level of coercion. Hart v. Parks, 450 F.3d 1059, 1065 (9th Cir. 2006). 

 5

 The warrantless of arrest of a person who opens the door of his or her home may violate 

the Fourth Amendment if: (1) the police use force or threats to cause the suspect to open the 

door; or (2) the police use subterfuge to cause the suspect to open the door. In his Second 

Amended Complaint, Mr. Gainer does not allege that the officers used subterfuge to cause him to 

open or step outside his door. The Court therefore does not reach the question whether the 

officers used subterfuge by making the statement that Mr. Gainer should step outside because 

questioning would only “take a minute,” even though Officer Bohrer intended to arrest Mr. 

Gainer the moment he crossed the threshold. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 9 of 23
PAGE 10 – OPINION AND ORDER 

Although Mr. Gainer saw that Officer Bohrer and Sergeant Wilkerson were wearing their 

full police uniforms, he did not see either officer draw a weapon. The officers did not use a 

bullhorn to demand that Mr. Gainer leave his home. The officers asked him to step outside, and 

he complied. The officers did not make an overwhelming show of force and authority, nor would 

these circumstances have led any reasonable person to believe he or she was under arrest. Thus, 

Mr. Gainer voluntarily exposed himself to a public place by opening his door and stepping over 

the threshold of his front door. As in Hart, all admissible evidence shows that Mr. Gainer “was 

asked to leave his house and did so free from coercion, let alone free from ‘circumstances of 

extreme coercion’ commensurate with those presented in Al-Azzawy.” Hart, 450 F.3d at 1065. 

b. Probable Cause 

Mr. Gainer also argues that the officers arrested him without probable cause. A 

warrantless arrest requires probable cause. United States v. Brobst, 558 F.3d 982, 990 (9th Cir. 

2009). Probable cause exists “if, under the totality of the facts and circumstances known to the 

arresting officer, a prudent person would have concluded that there was a fair probability that the 

suspect had committed a crime.” Al-Azzawy, 784 F.2d at 894 (quoting United States v. Gonzales, 

749 F.2d 1329, 1337 (9th Cir.1984)); see also United States v. Lopez, 482 F.3d 1067, 1072 

(9th Cir. 2007) (“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.”). Probable cause does not 

require certainty, nor is it a “beyond a reasonable doubt” standard. Yousefian v. City of Glendale, 

779 F.3d 1010, 1014 (9th Cir. 2015). Officers “may not ignore exculpatory evidence that would 

‘negate a finding of probable cause,’” but “[t]he mere existence of some evidence that could 

suggest self-defense does not negate probable cause.” Id. (citations omitted). The determination 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 10 of 23
PAGE 11 – OPINION AND ORDER 

whether probable cause exists “is based upon the information the officer had at the time of 

making the arrest.” John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008). 

The Ninth Circuit has stated that a probable cause determination “necessarily turns upon 

the particular facts of the individual case, and prior decisions generally are of little help in 

deciding a specific case.” John, 515 F.3d 939 at 941. Still, Ninth Circuit precedent is instructive 

because the Ninth Circuit has found probable cause to exist in other cases with facts similar to 

those presented here. 

In Yousefian, 779 F.3d at 1010, the plaintiff arrestee called the police to report that his 

father-in-law had attacked him. The police responded and saw an elderly man (the father-in-law) 

lying on the floor, bleeding profusely from a wound to his head. The plaintiff had no serious 

injuries and declined medical care. Everyone agreed that the plaintiff struck the father-in-law in 

the head with a glass candle-holder. The plaintiff explained that he struck his father-in-law in 

self-defense after the father-in-law began to hit the plaintiff with a cane. The father-in-law and 

his wife, however, told police that no such provocation had occurred. The plaintiff was arrested 

for assault with a deadly weapon, booked, and released on bond. At trial, a jury acquitted the 

plaintiff of the assault and elder abuse charges. The plaintiff then brought a civil lawsuit for false 

arrest. The district court granted summary judgment for the defendant, and the Ninth Circuit 

affirmed. The Ninth Circuit held that “notwithstanding the self-defense claim,” no reasonable 

jury could have concluded that probable cause for the arrest was lacking. Id. at 1014-15. 

In John, 515 F.3d 936, a police officer made a warrantless arrest of a school teacher, the 

plaintiff, for sexually molesting a ten-year-old student. The plaintiff was handcuffed at the 

school where she taught, confined for 36 hours, and then released after the district attorney 

declined to prosecute. The officer made the arrest after receiving a report from the school 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 11 of 23
PAGE 12 – OPINION AND ORDER 

principal that the plaintiff had intercepted a note from the student accusing the plaintiff of being 

a “lesbian” and a “perv” (presumably meaning “pervert”). The plaintiff showed the note to the 

principal, and the principal requested a police investigation. The officer interviewed the student 

before making any arrest. Based on the officer’s experience interviewing victims of sexual 

abuse, the student’s description of events, and the student’s consistency and accuracy without the 

officer detecting exaggeration, fabrication, or deception, the officer concluded that the student 

was a genuine victim of sexual abuse. The officer also believed that the note from the student 

corroborated the student’s account of the molestation. Looking at the totality of the 

circumstances, the Ninth Circuit reversed the district court’s finding that the officer did not have 

probable cause for an arrest. Id. at 942. 

In Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), police officers found the 

plaintiff at a shopping mall, where six months before, he had been evicted and permanently 

banned. The officers arrested the plaintiff, and he was charged with, among other things, 

misdemeanor trespass. After the plaintiff spent three months in jail, all charges were dropped. 

The Ninth Circuit affirmed the district court’s grant of summary judgment on the issue of 

whether probable cause existed to arrest the plaintiff. The Ninth Circuit noted that “it appears an 

actual conviction for trespass might have been difficult without additional evidence. . . . 

Ultimately, however, our inquiry is not whether [the plaintiff] was trespassing. Rather, it is 

whether a reasonable officer had probable cause to think he could have been.” Id. at 474-75 

(emphasis in original). The officers knew that the plaintiff had been issued a “Notice Forbidding 

Trespass” and that the shopping mall security officer had requested that the plaintiff be placed 

under arrest. These facts, known to the officers at the time of arrest, were sufficient to allow the 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 12 of 23
PAGE 13 – OPINION AND ORDER 

officers reasonably to believe they had probable cause to arrest the plaintiff for trespass. Id.

at 475. 

Here, at the time of the arrest, Officer Bohrer had the statements of Mr. Steele, Ms. 

Flauding, and Mr. Armstrong. Although there was an inconsistency between where 

Mr. Armstrong said the assault took place and where Mr. Steele and Ms. Flauding said it 

occurred, all three witnesses stated that Mr. Gainer had punched Mr. Steele in the face without 

provocation. Officer Bohrer also examined Mr. Steele’s medical records, which showed that 

Mr. Steele suffered a severe facial blow. Moreover, Officer Bohrer observed Mr. Steele spitting 

blood in the lobby of the police department and saw blood in Ms. Flauding’s car. Upon 

Mr. Gainer’s arrest, Mr. Gainer admitted to Officer Bohrer that he had hit Mr. Steele in the face. 

Officer Bohrer could not see any visible injuries on Mr. Gainer to support Mr. Gainer’s 

contention that he had been attacked and acted only in self-defense. This is not a case like that of 

Arpin v. Santa Clara Valley Transportation Agency, where officers accepted an “unexamined 

charge” from an alleged victim. 261 F.3d 912, 925 (9th Cir. 2001). Physical evidence and two 

additional witness statements supported Mr. Steele’s charge. Probable cause to arrest Mr. Gainer 

existed. 

Plaintiffs attach to their response the declaration of Ronald J. Miller, a licensed private 

investigator. Mr. Miller concludes that Officer Bohrer “did not comply with accepted 

investigative standards for the establishment of probable cause for arrest.” Dkt. 47-2 at 19. 

Where, as in this case, the facts are undisputed, probable cause is a question of law for the court. 

See Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (holding that what is “objectively reasonable” 

for an officer to do under the Fourth Amendment is “a pure question of law”); Peng v. Mei Chin 

Penghu, 335 F.3d 970, 979-80 (9th Cir. 2003) (“[W]here the material, historical facts are not in 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 13 of 23
PAGE 14 – OPINION AND ORDER 

dispute, and the only disputes involve what inferences properly may be drawn from those 

historical facts, it is appropriate for this court to decide whether probable cause existed . . . .”); 

c.f. Ornelas v. United States, 517 U.S. 690, 696 (1996) (“The first part of the analysis [of 

whether probable cause exists] involves only a determination of historical facts, but the second 

[the decision whether these historical facts, viewed from the standpoint of an objectively 

reasonable police officer, amount to probable cause] is a mixed question of law and fact . . . .”). 

Therefore, Mr. Miller’s opinion is not the type of expert opinion that the Court would rely upon 

under Federal Rule of Evidence 702. Nor, for that matter, is the opinion of defense attorney 

Jacob Wieselman, who states in his declaration that the government’s failure to turn over a copy 

of the video of Mr. Gainer’s arrest and interrogation constitutes a violation of Brady v. 

Maryland, 373 U.S. 83 (1963). Dkt. 47-3 ¶ 3. 

The Court does not intend to minimize the serious effect that this unfortunate incident 

must have had upon Mr. Gainer and his family. To be escorted by the police from his home 

shirtless and in handcuffs and confined for 21 days must have had a devastating effect upon Mr. 

Gainer’s personal reputation and sense of well-being, and the event would have justifiably 

distressed both his long-term partner and his daughter. Still, “the probable cause inquiry is an 

objective one,” and courts look only to whether information available at the time of the arrest 

would have led a reasonable officer to conclude that the suspect had committed a crime. John, 

515 F.3d at 942. For the reasons stated above, the Court concludes that the information available 

to Officer Bohrer when he made the arrest would have led a reasonable officer to believe that 

Mr. Gainer had committed an offense against Mr. Steele.6

 

 6

 After the arrest, officers eventually learned that Mr. Steele, Ms. Flauding, and 

Mr. Armstrong made false reports to the police in violation of Oregon law. Or. Rev. Stat. 

(“ORS”) § 162.375. The proper remedy for this violation, however, is not a lawsuit against the 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 14 of 23
PAGE 15 – OPINION AND ORDER 

2. Incarceration and Prosecution after the Arrest 

Mr. Gainer also argues that his incarceration and prosecution after the arrest was without 

probable cause and violated his Fourth Amendment rights. Mr. Gainer asserts that Officer 

Bohrer’s failed to include additional details and names of witnesses in his report and failed to 

forward the video or audio of Mr. Gainer’s post-arrest interview to either the prosecutor or 

defense counsel. This information, argues Mr. Gainer, should have led Officer Bohrer or the 

prosecutor to conduct further investigation, which would have dissipated probable cause after 

Mr. Gainer’s arrest even if probable cause existed at the time of the arrest. Mr. Gainer cites 

United States v. Ortiz-Hernandez in support of his position that once Officer Bohrer should have 

continued to investigate or even released Mr. Gainer once Mr. Gainer provided evidence that the 

alleged assault might have been self-defense. 427 F.3d 567, 574-75 (9th Cir. 2005) (affirming the 

district court’s finding that probable cause dissipated where there was “no evidence in the record 

that the police took post-arrest measures, such as obtaining a body cavity search order, to 

confirm that [the arrestee] had swallowed balloons containing heroin”). 

The evidence in this case, however, is strikingly similar to the evidence found sufficient 

to support probable cause for prosecution in Yousefian. 779 F.3d at 1014. There, the Ninth 

Circuit held that “there was indisputably probable cause to arrest and prosecute [the arrestee] for 

assault.” Id. The Ninth Circuit based this determination on the facts that a police officer found 

“an elderly and infirm man bleeding profusely from a head wound admittedly inflicted by a 

younger man without significant injuries” and that the victim and his wife had “told the officers 

at the scene that [the younger man] had attacked [the victim] without provocation.” Id. Under 

these circumstances, regardless of the arrestee’s assertion of self-defense, “no reasonable jury 

 

officers who relied on the false reports. Plaintiffs could have brought civil claims directly against 

Mr. Steele, Ms. Flauding, and Mr. Armstrong. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 15 of 23
PAGE 16 – OPINION AND ORDER 

could conclude that there was no probable cause for the arrest or for prosecution” for assault. Id.

at 1015 (emphasis added). 

Despite the information supplied by Mr. Gainer during his post-arrest interview, three 

people still claimed that Mr. Gainer, who acknowledged having extensive skills in martial arts, 

had hit Mr. Steele without provocation; Mr. Gainer still admitted to hitting Mr. Steele; Mr. Steele 

still had medical records showing a severe facial blow; and Officer Bohrer still had observed 

blood in Ms. Flauding’s car. Although Mr. Gainer’s information suggested that he acted only in 

self-defense, the claim of self-defense did not negate probable cause for his continued 

incarceration and prosecution. Probable cause did not dissipate until further investigation 

revealed that Mr. Steele, Ms. Flauding, and Mr. Armstrong had supplied incomplete or false 

information to the police. At that point, all prosecution ceased. 

3. Equal Protection 

Mr. Gainer asserts a “class-of-one” equal protection claim under the Fourteenth 

Amendment. According to Mr. Gainer, there is no rational reason for why Officer Bohrer 

willfully remained ignorant of relevant evidence, arrested Mr. Gainer without probable cause, or 

failed to follow up on the information Mr. Gainer provided after his arrest. The Supreme Court 

has recognized class-of-one equal protection claims “where the plaintiff alleges that she has been 

intentionally treated differently from others similarly situated and that there is no rational basis 

for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, (2000). 

Mr. Gainer has not, however, presented evidence that he was intentionally treated 

differently from similarly-situated individuals. Although Defendants could have done a more 

thorough job in investigating the complaint against Mr. Gainer, for the reasons already discussed, 

a reasonable officer could have concluded the probable cause existed to arrest and detain Mr. 

Gainer. This is all that the law requires. After additional facts about the complaint came to light, 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 16 of 23
PAGE 17 – OPINION AND ORDER 

the District Attorney dropped the charges against Mr. Gainer. Nothing in the record suggests that 

before Mr. Gainer’s arrest, Officer Bohrer knew anything about Mr. Gainer other than the 

information reported by Mr. Steele, Ms. Flauding, and Mr. Armstrong. Mr. Gainer’s claims that 

he was intentionally singled out without justification are not supported. 

4. Supervision and Training of Officer Bohrer 

Mr. Gainer argues that Officer Bohrer violated Mr. Gainer’s Fourth and Fourteenth 

Amendment rights by arresting and imprisoning Mr. Gainer without probable cause and that as 

supervisors and advisors, Chief Anderson, Sergeant Wilkerson, and Officer Fuji are liable for 

failing adequately to supervise Mr. Gainer’s investigation. Mr. Gainer further argues that the 

City is liable because it failed adequately to train Officer Bohrer. Mr. Gainer points out that 

although Officer Bohrer had been a reserve officer for two years and a full-time officer for nine 

months before Mr. Gainer’s arrest, Officer Bohrer did not finish his basic certification 

application until seven days after the arrest. According to Mr. Gainer, because of Officer 

Bohrer’s relative inexperience, his supervisors and co-workers should have familiarized 

themselves with the facts of Mr. Gainer’s case and made an independent determination regarding 

probable cause. These failures, argues Mr. Gainer, resulted in the omission of evidence from 

Defendant Bohrer’s report and later Brady violations during the litigation of the criminal case. 

A supervisor “can be held liable in his individual capacity ‘for his own culpable action or 

inaction in the training, supervision, or control of his subordinates; for his acquiescence in the 

constitutional deprivation[;] or for conduct that showed a reckless or callous indifference to the 

rights of others.’” Blankenhorn, 485 F.3d at 485 (quoting Watkins v. City of Oakland, 145 F.3d 

1087, 1093 (9th Cir.1998)) (alteration in original). If a subordinate causes a constitutional 

deprivation, a supervisor’s liability “depends upon whether he ‘set in motion a series of acts by 

others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 17 of 23
PAGE 18 – OPINION AND ORDER 

should have known, would cause others to inflict the constitutional injury.’” Id. (quoting 

Watkins, 145 F.3d at 1093). Similarly, a city may be liable for the constitutional torts of its 

employees under § 1983 where its “failure to train amounts to deliberate indifference to the 

rights of persons with whom the [employees] come into contact.” Dawson, 435 F.3d at 1065 

(quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)) (internal quotation marks omitted) 

(alteration in original). 

Plaintiffs, however, cannot establish a claim of failure to supervise or train under § 1983 

without first showing a deprivation of a constitutional right. Supervisors and municipalities are 

not liable where the actions of subordinate officers did not cause any constitutional injury. See 

Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1158-59 (9th Cir. 2014) (“As to an official in his 

individual capacity, . . . [the plaintiff] must show that [the defendant supervisor] was deliberately 

indifferent to the need to train subordinates, and the lack of training actually caused the 

constitutional harm or deprivation of rights.”); Dawson, 435 F.3d at 1065 (“Because we conclude 

that [the police officers’] search did not deprive Plaintiffs of any constitutional right, however, 

Plaintiffs cannot, as a matter of law, establish a valid § 1983 claim against [the county].”). 

Because the Court finds that no subordinate officer’s actions resulted in a constitutional 

violation, Chief Anderson, Sergeant Wilkerson, Officer Fuji, and the City are not liable for any 

failure to supervise or train.7

 

 7

 Because the Court finds that no triable issues regarding probable cause or constitutional 

violations exist, the Court does not reach Defendants’ qualified immunity argument. The Court 

notes, however, the Ninth Circuit’s statement in Peng: “If we had doubts about probable cause, 

we would still reach the same conclusion because . . . ‘[e]ven absent probable cause, qualified 

immunity is available if a reasonable police officer could have believed that his or her conduct 

was lawful . . . .’” Peng, 335 F.3d at 980 (quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 

(9th Cir. 1991)). 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 18 of 23
PAGE 19 – OPINION AND ORDER 

B. State Claims 

Plaintiffs concede that the evidence does not show that the individual defendants acted 

outside the scope of their employment and thus all state law tort claims must be dismissed 

against all defendants except the City under the Oregon Tort Claims Act. ORS § 30.265(2)-(3). 

1. False Arrest or Imprisonment, Assault, and Battery 

Plaintiffs concede that the individual officers did not use excessive force in arresting Mr. 

Gainer. Plaintiffs further concede that if probable cause for Mr. Gainer’s arrest existed, the Court 

should dismiss the claims for false arrest or imprisonment, assault, and battery. In Oregon, 

probable cause exists if the person who initiates criminal proceedings against another 

“reasonably believes that the person accused has acted or failed to act in a particular manner” 

and either (1) “correctly believes that such acts or omissions constitute at common law or under 

an existing statute the offense charged against the accused” or (2) “mistakenly so believes in 

reliance on the advice of counsel.” Gustafson v. Payless Drug Stores Nw., Inc., 269 Or. 354, 356-

57 (1974) (quoting Varner v. Hoffer, 267 Or. 175, 179 (1973)) (internal quotation marks 

omitted). 

Because the Court—as discussed above—finds that Officer Bohrer reasonably believed 

that Mr. Gainer committed a crime and therefore had probable cause to arrest Mr. Gainer, the 

Court dismisses these state tort claims. See Gigler v. City of Klamath Falls, 21 Or. App. 753, 762 

(1975) (“Indispensable proof of the causes of action [assault and battery, false arrest, false 

imprisonment, malicious prosecution, and outrageous conduct] plaintiff asserts under these 

assignments is that the action taken against him was without probable cause.”). 

2. Malicious Prosecution 

According to Mr. Gainer, the City perpetrated a malicious prosecution against him 

because no probable cause existed for the initial arrest and the continued incarceration after Mr. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 19 of 23
PAGE 20 – OPINION AND ORDER 

Gainer had proffered evidence disputing Mr. Steele’s story. Mr. Gainer further alleges the City 

acted with improper purposes to “teach [him] a lesson” and for reasons other than having 

probable cause to believe he was guilty. Dkt. 18 ¶ 43. In order to recover for the tort of malicious 

prosecution, a plaintiff must prove six elements: 

(1) the institution or continuation of the original criminal 

proceedings; (2) by or at the insistence of the defendant; (3) 

termination of such proceedings in the plaintiff’s favor; (4) malice 

in instituting the proceedings; (5) lack of probable cause for the 

proceeding; and (6) injury or damage because of the prosecution. 

Rose v. Whitbeck, 277 Or. 791, 795, mod. on other grounds 278 Or. 463 (1977). “Proof of 

probable cause” serves as “a complete defense to the action [of malicious prosecution].” 

Gustafson, 269 Or. at 356; see also Yousefian, 779 F.3d at 1014 (“The absence of probable cause 

is a necessary element of § 1983 false arrest and malicious prosecution claims.”). 

The Ninth Circuit also has discussed liability for malicious prosecution under § 1983 

when an officer “maliciously or recklessly makes false reports to the prosecutor.” Blankenhorn, 

485 F.3d at 482. Even “‘where police officers do not act maliciously or with reckless disregard 

for the rights of an arrested person,’” they may be liable for damages suffered by the arrested 

person after a district attorney files charges if “‘the presumption of independent judgment by the 

district attorney is rebutted.’” Id. (quoting Smiddy v. Varney, 665 F.2d 261, 267 (9th Cir. 1981)). 

The presumption is rebutted by, for example, showing that an officer “provided false 

information” to the prosecutor or made material omissions. Id. The false information or 

omissions must, however, be “legally relevant to whether there was probable cause to charge [the 

plaintiff] with [a crime].” Id. at 483. 

As discussed, the Court has determined that probable cause to arrest and incarcerate 

Mr. Gainer existed. The false information or omissions alleged by Mr. Gainer are that Officer 

Bohrer failed to include in his report that he found no blood in the gravel parking lot of the Brass 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 20 of 23
PAGE 21 – OPINION AND ORDER 

Rail Tavern, that Mr. Gainer had called 9-1-1 after the incident in the early hours of 

August 20, 2013, that the bartender at the Brass Rail Tavern told Officer Bohrer that he heard 

about an altercation, and that Mr. Gainer gave Officer Bohrer the first names of other potential 

witnesses. None of this omitted evidence would, however, have so undermined the physical 

evidence and the statements of Mr. Steele, Ms. Flauding, and Mr. Armstrong as to negate 

probable cause for Mr. Gainer’s continued incarceration and prosecution. Despite the omissions 

by Officer Bohrer, probable cause did not dissipate until further investigation revealed that Mr. 

Steele, Ms. Flauding, and Mr. Armstrong had made false reports to the police. Upon that 

discovery, the District Attorney acted appropriately and dropped all charges against Mr. Gainer. 

There is no genuine issue for trial of malicious prosecution. 

3. Negligence 

Although a plaintiff may plead alternative theories of liability under state common law 

and § 1983, courts in this district do not allow a plaintiff to proceed with a cause of action for 

negligence based solely on the same facts underlying his or her § 1983 claim. Whitfield v. TriMetro. Transp. Dist., 2009 WL 839484, at *10-11 (D. Or. Mar. 30, 2009). Here, Mr. Gainer 

bases his negligence claim on the same facts as his § 1983 claims. 

Additionally, even if Mr. Gainer had pled separate facts for his negligence claim, a 

negligence claim generally requires physical injury. Lowe v. Philip Morris USA, Inc., 207 Or. 

App. 532, 540-45, (2006) aff’d, 344 Or. 403 (2008). In the absence of a physical injury, Oregon 

law recognizes a negligence claim only in certain circumstances: 

This court [the Oregon Supreme Court] has recognized common 

law liability for psychic injury alone when defendant’s conduct 

was either intentional or equivalently reckless of another’s feelings 

in a responsible relationship, or when it infringed some legally 

protected interest apart from causing the claimed distress, even 

when only negligently. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 21 of 23
PAGE 22 – OPINION AND ORDER 

Norwest, By & Through Crain v. Presbyterian Intercommunity Hosp., 293 Or. 543, 558-59 

(1982) (footnotes omitted). These sorts of “responsible relationships” include the physicianpatient relationship, Curtis v. MRI Imaging Servs. II, 148 Or. App. 607, 618 (1997), aff’d, 327 

Or. 9 (1998), or a relationship involving a “specific duty imposed by statute for the benefit of 

individuals previously identified by a judicial order.” Nearing v. Weaver, 295 Or. 702, 707 

(1983). Mr. Gainer has not alleged, let alone shown a genuine factual dispute regarding, the type 

of relationship with the City that would allow him to establish negligence in the absence of 

physical injury. Nor has Mr. Gainer shown a genuine issue concerning the invasion of some 

legally protected interest. His negligence claim fails. 

4. Ms. Gainer’s Loss of Consortium Claim 

Loss of consortium is a “derivative” claim; “it arises only as the result of injury to the 

other spouse.” Casey v. Manson Const. & Eng’g Co., 247 Or. 274, 292 (1967); see also Knepper 

v. Brown, 213 Or. App. 598, 609 (2007), aff’d, 345 Or. 320 (2008) (noting that a loss of 

consortium claim is entirely dependent on the resolution of the other spouse’s claims). Without 

Mr. Gainer’s claims, Ms. Gainer may not assert loss of consortium. Because Mr. Gainer has 

failed to present a genuine issue of material fact concerning any of his claims, Ms. Gainer’s 

claim, too, must fail. 

In addition, Oregon law only has recognized claims for loss of consortium by an injured 

person’s spouse. See Shoemaker v. Mgmt. Recruiters Int’l, Inc., 125 Or. App. 568, 572 (1993) 

(“[A] claim for loss of consortium is based on injuries peculiar to a plaintiff that were the 

consequence of tortious injury suffered by the plaintiff’s spouse.”) (emphasis added). The claim 

for loss of consortium is based on the theory “that, by virtue of marriage, a spouse receives 

certain benefits both tangible, as in material services, and intangible, such as companionship and 

affection, from the other spouse.” Axen v. Am. Home Products Corp. ex rel. Wyeth-Ayerst Labs., 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 22 of 23
PAGE 23 – OPINION AND ORDER 

158 Or. App. 292, 310, opinion adhered to as modified on reconsideration sub nom. Axen v. Am. 

Home Products Corp., 160 Or. App. 19 (1999). No Oregon appellate court has opined on 

whether this theory might be extended to encompass the benefits conferred by committed longterm unmarried partners. 

Ms. Gainer is Mr. Gainer’s long-time partner, and the two have a daughter together. They 

are not, however, married. Although Ms. Gainer argues that the Oregon Supreme Court “would” 

recognize such an action for a non-married life partner if it had the chance, she does not cite any 

Oregon cases in support of her argument. Dkt. 57 at 64. The Court cannot accept Ms. Gainer’s 

invitation to create a new state cause of action without any guiding case law, even in dicta, from 

an Oregon appellate court.8

 

CONCLUSION 

Defendants’ Motion for Summary Judgment (Dkt. 23) is GRANTED. 

IT IS SO ORDERED. 

DATED this 8th day of January, 2016. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

 8

 In a diversity case, the Court must follow state law. Where there is no state statute on 

point and the state’s highest court has not decided the question, federal courts must follow state 

intermediate appellate courts in interpreting state law “in the absence of convincing evidence that 

the highest court in the state would decide differently.” Stoner v. New York Life Insurance Co., 

311 U.S. 464, 467 (1940). If there is no state appellate law, the Court must decide what the 

state’s supreme court would likely do. Still, there must be something on which the federal court 

can base its decision. The federal court’s duty “is to ascertain and apply the existing [state law], 

not to predict that [the state] may change its law.” Mangold v. California Pub. Utilities Comm’n, 

67 F.3d 1470, 1479 (9th Cir. 1995) (quoting Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 

345, 346 (9th Cir.1974)) (internal quotation marks omitted). Ms. Gainer did not ask the Court to 

certify this question to the Oregon Supreme Court. Additionally, because the Court could also 

decide this claim based solely on the derivative nature of a loss of consortium claim, the Court 

does not find it necessary to certify the question. 

Case 3:14-cv-01346-SI Document 68 Filed 01/08/16 Page 23 of 23