PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DOUG GREISEN, an individual,

Plaintiff,

v.

JON HANKEN, an individual, JOHN DOES 

1-5, and CITY OF SCAPPOOSE, an Oregon 

municipality, 

Defendants.

Case No.3:14-cv-01399-SI

OPINION AND ORDER

John D. Ostrander and William A. Drew, ELLIOTT, OSTRANDER & PRESTON, P.C., 707 

S.W. Washington Street, Suite 1500, Portland, Oregon 97205. Of Attorneys for Plaintiff.

Karen M. Vickers and Blake H. Fry, MERSEREAU SHANNON L.L.P., One S.W. Columbia 

Street, Suite 1600, Portland, Oregon 97258. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Doug Greisen (“Plaintiff”) brings this suit against Jon Hanken, the former city manager 

for the City of Scappoose (“Mr. Hanken”); John Does 1-5, individuals alleged to have acted in 

concert with Mr. Hanken, in their official and personal capacities (“Doe Defendants”); and the 

City of Scappoose (the “City”), an Oregon municipality that is Plaintiff’s former employer

(collectively, “Defendants”). Before the Court is Defendants’ Motion to Dismiss (Dkt. 21) 

Case 3:14-cv-01399-SI Document 24 Filed 03/23/15 Page 1 of 11
PAGE 2 – OPINION AND ORDER

Plaintiff’s Amended Complaint (Dkt 20). For the reasons that follow, Defendants’ Motion is 

granted in part and denied in part. 

LEGAL STANDARD

A motion to dismiss for failure to state a claim may be granted only when there is no 

cognizable legal theory to support the claim or when the complaint lacks sufficient factual 

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 

992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint 

“may not simply recite the elements of a cause of action, but must contain sufficient allegations 

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from 

the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office 

Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the 

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 

662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial 

plausibility when the pleaded factual content allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

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PAGE 3 – OPINION AND ORDER

BACKGROUND

Plaintiff, the former Chief of Police in Scappoose, Oregon, filed this suit on August 29, 

2014, against his former employer, the City of Scappoose, former City Manager Jon Hanken, and 

John Does 1-5, asserting seven statutory and common-law claims: (1) violations of Plaintiff’s 

civil and constitutional rights under 42 U.S.C. § 1983, against all Defendants; (2) retaliation for 

whistleblowing under Or. Rev. Stat. (“ORS”) § 659A.203 and ORS § 659A.199, against all 

Defendants; (3) wrongful discharge, against all Defendants; (4) intentional or reckless infliction 

of emotional distress, against all Defendants; (5) defamation, against all Defendants; (6) unpaid 

wages or expenses, against the City only; and (7) tortious interference with contract, against Mr. 

Hanken only. Plaintiff’s Complaint was dismissed with leave to replead on January 5, 2015. 

Plaintiff filed his Amended Complaint on February 2, 2015. Defendants’ present motion to 

dismiss soon followed. 

The facts and claims alleged in Plaintiff’s Amended Complaint are almost identical to 

those alleged in Plaintiff’s original Complaint and have already been discussed at length in the 

Court’s previous Opinion. See Dkt. 16. There are, however, two exceptions relevant to the 

present motion to dismiss. First, Plaintiff’s Amended Complaint clarifies that his § 1983 claim 

against all Defendants alleges claims for violations of Plaintiff’s rights under the First and 

Fourteenth amendments. Second, Plaintiff’s Amended Complaint clarifies that Plaintiff’s second 

and third claims for retaliation for whistleblowing and wrongful discharge are asserted only

against the City. 

DISCUSSION

Defendants raise four arguments in support of their motion to dismiss: (1) Plaintiff’s 

§ 1983 claim against Mr. Hanken should be dismissed because Mr. Hanken resigned as city 

manager six months before Plaintiff’s allegedly wrongful termination on May 8, 2014;

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PAGE 4 – OPINION AND ORDER

(2) Plaintiff’s § 1983 claim against the City should be dismissed because Plaintiff has failed to 

identify a specific policy or custom of the City that deprived him of a constitutional or statutory 

right; (3) Plaintiff’s claims for intentional infliction of emotion distress and defamation may be 

asserted only against the City; and (4) Plaintiff’s claim for tortious interference with contract 

against Mr. Hanken should be dismissed because Mr. Hanken was acting within the scope of his

authority and for the benefit of his employer. The Court addresses each argument in turn. 

A. Plaintiff’s § 1983 Claims

Under 42 U.S.C. § 1983, any person who has suffered a “deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws” of the United States by a person 

acting under color of state law may bring a civil action seeking redress. Such claims may be

brought both against individual public employees and against local government agencies, with 

distinct elements depending on the nature of the defendant. Both the City and Mr. Hanken move 

to dismiss the § 1983 claims against them.

1. Plaintiff’s § 1983 claims against Mr. Hanken

To state a claim under § 1983 against an individual, a plaintiff must allege two essential 

elements: (1) the action occurred under color of law; and (2) the action resulted in a deprivation 

of a constitutional right or a federal statutory right. McDade v. West, 223 F.3d 1135, 1139 (9th 

Cir. 2000) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)); see also Long v. Cnty. of L.A., 

442 F.3d 1178, 1185 (9th Cir. 2006). As to the first element, a public employee generally acts 

under color of state law while acting in his official capacity. McDade, 223 F.3d at 1140 (citing

West v. Atkins, 487 U.S. 42, 49-50 (1988)). As to the second element, “Section 1983 ‘is not itself 

a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.’”

Broam, 320 F.3d at 1028 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

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PAGE 5 – OPINION AND ORDER

i. Plaintiff’s First Amendment Retaliation Claim Against 

Mr. Hanken

Plaintiff’s Amended Complaint alleges that Mr. Hanken violated his rights under the First 

Amendment by initiating multiple sham investigations into Plaintiff’s conduct as Police Chief, 

barring Plaintiff from public property, improperly levying fines against Plaintiff, and 

“instigating” actions that “put into motion” Plaintiff’s termination. All of these actions were 

allegedly carried out in retaliation for Plaintiff’s public statements regarding Mr. Hanken’s 

management of the City’s finances. 

In order to state a retaliation claim against a government employer for violation of the 

First Amendment, an employee must show (1) that he or she engaged in protected speech; 

(2) that the employer took “adverse employment action”; and (3) that his or her speech was a 

“substantial or motivating” factor for the adverse employment action. Bd. of County Comm'rs v. 

Umbehr, 518 U.S. 668, 675 (1996); Coszalter v. City of Salem, 320 F.3d 968, 973 

(9th Cir. 2003).

Defendants’ only argument regarding this claim is that Mr. Hanken was not employed by 

the City when Plaintiff was terminated. Defendants are correct that Plaintiff’s vague contention 

that Mr. Hanken “put into motion” Plaintiff’s termination, by itself, is insufficient to state a 

viable claim for relief. Plaintiff does, however, allege conduct (specifically, the allegedly 

improper fines and “sham” investigations) taken by Mr. Hanken while he was city manager that 

is sufficient to state a claim for relief. Accordingly, Defendants’ motion to dismiss on this basis 

is denied.

ii. Plaintiff’s Due Process Claim Against Mr. Hanken

Plaintiff’s Amended Complaint also alleges that the City and Mr. Hanken released “a 

barrage of stigmatizing information” both before and after his termination. Plaintiff contends that 

Case 3:14-cv-01399-SI Document 24 Filed 03/23/15 Page 5 of 11
PAGE 6 – OPINION AND ORDER

the publication of this information in the context of his employment termination violated his due 

process rights under the Fourteenth Amendment. 

Defamation by a state actor does not amount to a deprivation of “liberty” or “property” 

within the meaning of the Fourteenth Amendment unless it is accompanied by some interest 

other than mere loss of reputation. See Paul v. Davis, 424 U.S. 693, 711 (1976). Accordingly, to 

allege a claim under 42 U.S.C. § 1983 predicated upon an act of defamation, a plaintiff must

allege what is often referred to as a “stigma-plus” claim: “a stigmatizing statement” plus a 

deprivation of a “tangible interest” without due process of law. Ulrich v. City & Cnty. of San 

Francisco, 308 F.3d 968, 982 (9th Cir. 2002). To establish a “stigma-plus” claim, a plaintiff 

must allege two elements: (1) “the public disclosure of a stigmatizing statement by the 

government, the accuracy of which is contested, and (2) the denial of some more tangible interest 

such as employment or the alteration of a right or status recognized by state law.” Id. (internal 

quotation marks omitted). “Where these elements exist, the plaintiff is ‘entitled to notice and a 

hearing to clear his name.’” Id. (quoting Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 

(9th Cir.1981)).

Plaintiff fails to state a viable “stigma-plus” claim against Mr. Hanken because Mr. 

Hanken was not an employee of the City at the time Plaintiff was terminated. In other words, 

even if Plaintiff could plead the necessary “stigma” in the form of Mr. Hanken’s alleged 

defamatory statements, he cannot plead the “plus,” the requisite deprivation of a tangible 

interest, because it was the City, not Mr. Hanken, that actually terminated Plaintiff’s 

employment. Moreover, Plaintiff’s vague claim that Mr. Hanken “set in motion” events “that 

lead to” Plaintiff’s termination cannot salvage Plaintiff’s claim, because after Mr. Hanken was 

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PAGE 7 – OPINION AND ORDER

no longer an employee of the City, any stigmatizing statements were not made under color of 

state law and therefore cannot give rise to a viable claim under § 1983.

2. Plaintiff’s § 1983 claims against the City

To state a claim under § 1983 against a local government, a plaintiff must allege “that 

official policy is responsible for a deprivation of rights protected by the Constitution,” whether 

that policy has been adopted through the body’s “official decisionmaking channels” or is a 

matter of custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, (1978). “[A] local 

government may not be sued under § 1983 for an injury inflicted solely by its employees or 

agents.” Id. at 694; see also Long v. L.A., 442 F.3d at 1185 (holding that a municipality may be 

sued under § 1983 “only when execution of a government’s policy or custom inflicts the 

injury”); Dillon v. Clackamas Cnty., 2014 WL 6809772, at *3 (D. Or. Dec. 2, 2014) (holding that 

plaintiffs seeking to represent a class of strip-searched inmates sufficiently alleged violation of a 

“written or de facto” policy, although they did not identify the particular written policy or 

procedure).

Plaintiff argues that the retaliation against him by Mr. Hanken was actually a de facto

policy or custom of the City. In other words, Plaintiff alleges that the City had an unwritten 

policy of unconstitutionally retaliating against any person who questions the City budget process.

This argument is without merit. The harms alleged by Plaintiff stem from the alleged actions of 

Mr. Hanken or the Doe Defendants. A § 1983 claim against a government entity, however, is not 

identical to repondeat superior liability as Plaintiff suggests.

1

Instead, only if a policy is “so 

 

1

Plaintiff’s confusion regarding the different standards for § 1983 claims against 

individuals and government entities appears to stem from the fact that he has brought claims 

against both Mr. Hanken and multiple Doe Defendants, who are presumably City employees or 

contractors. Plaintiff may have viable § 1983 against one or more of the Doe Defendants. He 

does not, however, state a viable § 1983 claim against the City. 

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PAGE 8 – OPINION AND ORDER

permanent and well settled as to constitute a custom or usage with the force of law” may a 

Plaintiff bring a § 1983 claim against a government entity. Bouman v. Block, 940 F.2d 1211, 

1231 (9th Cir. 1991) (quotation marks omitted). Here, Plaintiff does not specifically allege that 

any individual other than himself has ever been retaliated against by the City for raising 

questions about the management of the City budget.2 Accordingly, Plaintiff’s § 1983 claims 

against the City is dismissed.

B. Oregon Tort Claims

Defendants’ present motion to dismiss raises two arguments regarding Plaintiff’s statelaw tort claims. First, Defendants argue that Plaintiff’s claims for intentional infliction of 

emotional distress and defamation against Mr. Hanken should be dismissed because only the 

City is a proper defendant on each claim. Second, Defendants argue that Plaintiff’s claim for 

tortious interference with contract against Mr. Hanken should be dismissed because Plaintiff 

alleges no relevant conduct of Mr. Hanken that was outside the scope of Mr. Hanken’s 

employment with the City. The Court first discusses the relevant Oregon law governing 

Plaintiff’s claims and then addresses each argument in turn. 

1. The Oregon Tort Claims Act

Plaintiff’s state-law tort claims are covered by the Oregon Tort Claims Act (“OTCA”), 

ORS §§ 30.260 to 30.300. These claims include alleged violations of Oregon’s whistleblowing 

statutes, ORS §§ 659A.203 and 659A.199, and common-law torts of wrongful discharge, 

intentional infliction of emotional distress, defamation, and tortious interference with contract. 

 

2

Plaintiff does generally allege that a former City councilperson told him that the Mr. 

Hanken “set the County Attorney on her,” causing such stress that she decided to quit. Such 

vague assertions are insufficient to allege the existence of an unconstitutional policy of 

retaliation that is “so permanent and well settled as to constitute a custom or usage with the force 

of law.” Bouman, 940 F.2d 1231,

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PAGE 9 – OPINION AND ORDER

See ORS § 30.260(8) (defining a tort as the breach of a legal duty that is imposed by law, other 

than a contractually based duty); Urban Renewal Agency of Coos Bay v. Lackey, 275 Or. 35, 38 

(1976) (holding that a legal duty under the OTCA may be imposed by common law or by 

statute). 

The OTCA provides the “sole cause of action for any tort 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” by the public body. ORS § 30.265(2). The 

OTCA bars actions against individual tortfeasors acting within the scope of their public 

employment and provides that the court upon motion will substitute the public body as the sole 

defendant. ORS § 30.265(3). Individual tortfeasors may be defendants only if they are acting 

outside “the scope of their employment or duties.” ORS § 30.265(1); see also Brungardt v. 

Barton, 69 Or. App. 440, 443 (1984).

A public employee is acting within the scope of his or her employment if three elements 

are satisfied: (1) the act in question is of a kind the actor was engaged to perform, (2) the act 

occurred substantially within the authorized time and space, and (3) the actor was motivated, at 

least in part, by a motive to serve the employer. Minnis v. Oregon Mutual Ins. Co., 334 Or. 191, 

201 (2002). This motivation is a “question for the trier of fact, except in cases where only one 

reasonable conclusion may be drawn from the facts pled.” Fearing v. Bucher, 328 Or. 367, 374 

(1999).

2. Intentional or Reckless Infliction of Emotional Distress and Defamation

The Court previously dismissed Plaintiff’s fourth and fifth claims, for intentional or 

reckless infliction of emotional distress and defamation respectively, on the grounds that Plaintiff 

had not made “specific factual allegations that would allow the Court to draw a reasonable 

inference that Mr. Hanken’s conduct was outside the scope of his employment.” See Dkt. 16. 

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PAGE 10 – OPINION AND ORDER

Defendants now concede that the Amended Complaint adds specific allegations regarding Mr. 

Hanken’s actions, but argues that these claims should still be dismissed because Plaintiff does 

not specifically allege that Plaintiff acted outside the scope of his employment. Plaintiff responds 

that his fourth and fifth claims are based on actions either outside the course and scope of Mr. 

Hanken’s employment as City Manager before his resignation on November 8, 2013, or upon 

Mr. Hanken’s actions as a private individual after his resignation.

Although Plaintiff’s Amended Complaint is not a model of clarity and appears to conflate 

the meaning of “personal capacity” with “outside the scope of employment,” Plaintiff’s 

Amended Complaint sufficiently alleges that Mr. Hanken committed tortious conduct both 

during and after the time he was employed by the City. To the extent that Mr. Hanken committed 

tortious conduct after he was no longer employed by the City, that conduct cannot be covered by 

ORS § 30.265, which applies only to torts committed “by an officer, employee, or agent of a 

public body.” Accordingly, Defendants’ motion to dismiss Plaintiff’s fourth and fifth claims 

against Mr. Hanken is denied. 

3. Plaintiff’s Claim for Tortious Interference with Economic Relations3

Plaintiff contends that Mr. Hanken, “for his own personal gain [and] outside the scope of 

his employment,” intentionally interfered with Plaintiff’s employment with the City, causing 

Plaintiff’s termination. To state a claim for the tort of intentional interference with economic 

relations, a plaintiff must allege each of the following elements: (1) the existence of a 

professional or business relationship; (2) intentional interference with that relationship or 

advantage; (3) by a third party; (4) accomplished through improper means or for an improper 

purpose; (5) a causal effect between the interference and the harm to the relationship or 

 

3

Plaintiff’s Amended Complaint refers to this claim as “Tortious Interference with 

Contract.” 

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PAGE 11 – OPINION AND ORDER

prospective advantage; and (6) damages. Allen v. Hall, 328 Or. 276, 281 (1999). An employee is 

generally shielded from liability for interference with economic relations between the employer 

and other individuals “so long as the employee is acting within the scope of his employment” 

and for the employer’s benefit. Wellington v. Lane Cnty., 2009 WL 2252100, at *3 & n.2 (D. Or. 

July 27, 2009) (quoting Wampler v. Palmerton, 250 Or. 65, 75 (1968).

Here, the allegations in Plaintiff’s Amended Complaint give rise to a reasonable 

inference that Mr. Hanken acted outside the scope of his employment with the City. In particular, 

the allegations in Plaintiff’s First Amendment retaliation claim against Mr. Hanken suggest that 

Mr. Hanken was acting for his own benefit and to the City’s detriment when he allegedly 

retaliated against Plaintiff. Accordingly, Defendants’ motion to dismiss Plaintiff’s claim for 

tortious interference with contract against Mr. Hanken is denied.

CONCLUSION

Defendants’ Motion to Dismiss (Dkt. 21) is GRANTED in part and DENIED in part. 

Plaintiff’s claims under 42 U.S.C. § 1983 against the City of Scappoose are DISMISSED with 

prejudice. Plaintiff’s claim under 42 U.S.C. § 1983 against Defendant Jon Hanken alleging a 

violation of Plaintiff’s rights under the Fourteenth Amendment is DISMISSED with prejudice. 

Defendants’ Motion to Dismiss is DENIED in all other respects. 

IT IS SO ORDERED.

DATED this 23rd day of March, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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