IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MATTHEW BRIAN VOGT, 

Plaintiff, 

v. 

KATE ZEMKE and JEFFERSON COUNTY 

RECORDER'S OFFICE, 

Defendants. 

PAP AK, Magistrate Judge: 

3:14-cv-01222-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Matthew Brian Vogt ("Vogt"), proceedingpro se, brings this action under 42 

U.S.C. § 1983 against defendants Kate Zemke ("Zemke") and the Jefferson County Recorder's 

Office 1 (collectively, "Defendants"). Vogt alleges Defendants violated his rights under the Fifth 

and Fomteenth Amendments of the United States Constitution. Now before the Comt is 

1 Vogt has referred to the Office of the Jefferson County Clerk as the "Jefferson County Recorder's Office" 

throughout this litigation. 

1 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01222-PK Document 88 Filed 11/02/16 Page 1 of 7
Defendants' Motion for Summary Judgment. ECF No. 35. I have considered the motion, 

supporting declarations and exhibits, and the pleadings. For the reasons set forth below, 

Defendants' motion should be granted. 

BACKGROUND 

This case centers on a tract of land Vogt refers to as "15645 Rainbow, The Property." 

Am. Comp!.~ 1, ECF No. 14. Vogt alleges this prope1iy encompasses lots 37-39 in Crook 

County, Oregon. Opp'n Mot. Summ. J. 4 & Ex. 1, at 6, ECF No. 87. The declaration of Tina 

Leaf, an assistant at the Office of the Jefferson County Assessor, and the exhibits submitted by 

Defendants, suggest otherwise. Leaf states that the property is in Jefferson County, not Crook 

County, and that the lots at issue are 38-40. Leaf Deel. 2 & Ex. 103 (assessment map), ECF No. 

86. Defendants also submit reports and deeds on file for lots 38-40. These exhibits establish that 

lot 38 has been owned by Jay Reimer since May 2000; lot 39 has been owned by Donnie Parks 

("Parks") since May 201 O; and lot 40 has been owned by Douglass Pynn since January 2012. 

Leaf Deel., Exs. 105-107; see also id at 2-3. 

On February 24, 2012, Vogt faxed four documents to the Office of the Jefferson County 

Clerk: (1) an invoice for a 2005 survey from Povey & Associates of Redmond, Oregon; (2) a 

copy of a "Reconnaissance Survey" completed by Robert Povey on May 5, 2005; (3) an illegible 

document providing owner addresses; and ( 4) an illegible tax statement. Zemke Deel. 2 & Ex. 

101, ECF No. 36. Vogt alleges he subsequently spoke with Zemke, who told him that she 

needed to speak with a supervisor before proceeding. Am. Comp!. ~ 2. Vogt alleges he did not 

hear back from Zemke until he called again on August 6, 2012, and Zemke told him that she 

would need original or certified copies of the four documents to record. Id. In response, Zemke 

states that the entire discussion with Vogt occuned during the original February 2012 call. 

2 - FINDINGS AND RECOMMENDATION 

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Zemke Deel. 2. Zemke states that Vogt refened to the ownership of a piece of property. After 

locating the deed for that property, Zemke told Vogt that the property was owned by Parks, and 

that Vogt had not presented any deed showing that he owned or purchased the property after 

May2010.2 Id. 

In July 2014, Vogt filed this civil rights action against the Jefferson County Recorder's 

Office. ECF No. 2. After I issued an Order to Show Cause, ECF No. 7, Vogt filed an Amended 

Complaint, ECF No. 14, joining Zemke as.a defendant. Vogt alleges Zemke negligently handled 

the submitted documents, and in doing so, acted under color of state law to deprive Vogt of 

property without due process, in violation of the Fifth and Fourteenth Amendments. Fu1iher, 

Vogt alleges the Jefferson County Recorder's Office failed to adequately train.Zemke and 

supervise its employees, which amounted to deliberate indifference of Vogt' s Fifth and 

Fourteenth Amendment rights. 

LEGAL STANDARD 

Summary judgment is appropriate if the pleadings, depositions, answers to 

intenogatories, and admissions on file, together with the affidavits, if any, 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). Summary judgment is not proper if material factual issues exist for 

trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). 

The substantive law governing a claim or defense determines whether a fact is material. See 

lvforelandv. Las Vegas lvletro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a 

motion for summary judgment, this court must draw all reasonable inferences in favor of the 

2 Although Zemke's declaration indicates Vogt told her he owned lot 39, Vogt's Amended Complaint and his 

Opposition to Defendants' Motion for Summary Judgment indicate Vogt asserts ownership of lots 38-40. Am. 

Comp!.~ I; Opp'n Mot. Summ. J. 4, Ex.I at 6. 

3 - FINDINGS AND RECOMMENDATION 

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nonmoving paiiy, and may not make credibility dete1minations or weigh the evidence. See, e.g., 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) . 

. In civil cases involving a prose plaintiff, the court construes the pleadings liberally and 

affords the plaintiff the benefit of any doubt. Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 

2008). Fmiher, pro se complaints are held to a less strict standard that! those drafted by a 

lawyer. Bonner v. Lewis, 857 F.2d 559, 563 (9th Cir. 1988); see also Haines v. Kerner, 404 U.S. 

519, 520 (1972); Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th 

Cir. 1990) (courts can infer claims from pleadings). However, a prose litigant is not excused 

from following co mi rules, including basic pleading requirements. Am. Ass 'n of Naturopathic 

Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000). 

ANALYSIS 

Defendants argue: (1) Vogt had no prope1iy interest at stake; (2) the documents Vogt 

sought to be filed were not recordable; (3) Vogt cannot bring a negligence claim under 42 U.S.C. 

§ 1983; (4) Zemke is entitled to qualified immunity; and (5) the Jefferson County Recorder's 

Office is not a legal entity capable of being sued here. Mot. Summ. J. 6-8. 

I. Vogt had no ownership interest in "15645 Rainbow, The Property." 

Defendants first argue Vogt was not the owner of the property at issue at the time he 

attempted to record documents, and therefore Vogt had no prope1iy interest of which he could be 

deprived. Mot. Summ. J. 6. I agree, and conclude that summary judgment should be granted in 

favor of Defendants on these grounds. 

"Procedural due process imposes constraints on governmental decisions which deprive 

individuals of'liberty' or 'prope1iy' interests within the meaning of the Due Process Clause of 

the Fifth or Fourteenth Amendment." 1vfathews v. Eldridge, 424 U.S. 319, 332 (1976); see also 

4 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01222-PK Document 88 Filed 11/02/16 Page 4 of 7
}vfaclean v. Dep't of Homeland Sec., 543 F.3d 1145, 1151 (9th Cir. 2008). To proceed, "[w]e 

analyze a procedural due process claim in two steps. The first asks whether there exists a liberty 

or property interest which has been interfered with by the State; the second examines whether the 

procedures attendant upon that deprivation were constitutionally sufficient." United States v. 

Juvenile 1\;fale, 670 F.3d 999, 1013 (9th Cir. 2012) (quotation marks and citation omitted). 

Vogt appears to argue he was deprived of an ownership interest in "15645 Rainbow, The 

Property." Vogt alleges Defendants' actions prevented him from "prov[ing] ownership" of the 

property. Am. Comp!.~ 1; see also id ~ 3 ("Had the recorder's office informed me that I needed 

to submit the original documents, or certified copies of the documents showing proof of 

ownership, I would have done so!"). Fu11her, Vogt seeks "[e]ither [the] prope11y that was lost 

restored ... or [the] cunent appraised value [of the prope11y]" as relief in this action. Id at 5. 

More succinctly, Vogt argues "the county is depriving me of the ability to prove ownership of 

the prope11y." Opp'n Mot. Summ. J. 5. 

On this record, however, there is no genuine dispute whether Vogt owned any of the 

prope1iy at issue when he submitted the documents to be recorded in February 2012. Defendants 

submit evidence showing as a matter of law that the lots have been owned by persons other than 

Vogt before February 2012. Vogt, on the other hand, has submitted evidence indicating only that 

he owned some prope1iy at "15645 SW Rainbow Road" before 2010. See Opp'n Mot. Summ. J., 

Ex. 1,at 3-5. Because Vogt had no property interest when the alleged deprivation took place, 

Vogt's procedural due process claim fails. Fmiher, because Vogt suffered no constitutional 

violation, any claim based on Jefferson County's alleged failure to train Zemke necessarily fails. 

Simmons v. Navajo Cty., 609 F.3d 1011, 1021 (9th Cir. 2010). Therefore, I conclude that 

Defendants are entitled to judgment as a matter of law. 

5 - FINDINGS AL"\ID RECOMMENDATION 

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II. Alternative grounds for granting summary judgment 

Although Vogt's failure to show a prope1iy interest at stake is dispositive,Vogt's claims 

fail on other grounds. As to Vogt's claims that Zemke was negligent, lack of due care is not a 

proper basis for liability under 42 U.S.C. § 1983. Daniels v. Williams, 474 U.S. 327, 333 (1986); 

Davidson v. Cannon, 474 U.S. 344, 347-48 (1986) (negligent denial of due process not 

actionable under§ 1983). As to Vogt's naming "the Jefferson County Recorder's Office" (or the 

Office of the Jefferson County Clerk) as a paiiy, the Recorder's Office is not a separate legal 

entity subject to suit under§ 1983. See Updike v. Clackamas Cty., No. 3:15-cv-00723-SI, 2015 

WL 7722410, *3-*4 (D. Or. Nov. 30, 2015) (collecting cases). 

CONCLUSION 

For the reasons set forth above, Defendants' Motion for Summary Judgment, ECF No. 

35, should be granted. Judgment should be entered dismissing this action with prejudice. 

SCHEDULING ORDER 

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

are due fourteen (14) days from service of the Findings and Recommendation. Ifno 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 nova 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 

6-FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01222-PK Document 88 Filed 11/02/16 Page 6 of 7
judgment entered by a district judge. These Findings and Recommendation are not immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(l) 

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

Dated this ;:I,(\ ~ay of November, 2016. 

Honorable Paul Papak 

United States Magistrate Judge 

7 - FINDINGS AND RECOMMENDATION 

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