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Zachary Spier, OSB #124609

405 NW 18th Avenue

Portland, OR 97209

Phone: (503) 305-3730

Fax: (503) 616-7180

Email: zachary@spier-law.com

Attorney for the Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ANTHONY CROSS

 Plaintiff, 

v.

CITY OF PORTLAND, a public body;

CHARLES ASHEIM, in his individual capacity;

JAMES DEFRAIN, in his individual capacity;

CHRISTOPHER BURLEY, in his individual capacity;

PATRICK MURPHY, in his individual capacity;

BRIAN DALE, in his individual capacity; and

KEN DUILIO, in his individual capacity,

 Defendants

Case No.: ______________________

COMPLAINT

42 U.S.C. § 1983

CIVIL RIGHTS VIOLATIONS;

SUPPLEMENTAL STATE CLAIMS

DEMAND FOR JURY TRIAL 

NATURE OF THE ACTION

1. This is a civil rights action brought by Plaintiff Anthony Cross.

2. Plaintiff alleges that during and because of his unlawful arrest, his detention, and his 

incarceration the above-captioned defendants, Charles Asheim, James Defrain, Christopher 

Burley, Patrick Murphy, Brian Dale, Ken Dulilo (“the individual Defendants”), and the City of 

Portland (“the City”), violated 42 U.S.C. § 1983 through violations of civil rights guaranteed 

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by the substantive and procedural components of the United States and Oregon 

Constitutions.

3. Plaintiff also alleges that during and because of his unlawful arrest, his detention, and 

his incarceration that the City violated 42 U.S.C. § 1983 through establishing a pattern or 

policy of civil rights violations by ratifying a subordinate’s unconstitutional actions pursuant to 

Monell v. Department of Social Services, 436 US 658 (1978) and Adickes v. Kress, 398 US 144 

(1970).

4. Plaintiff also alleges that the individually listed defendants are liable for assault and 

battery under state law.

5. Plaintiff also alleges that the City is liable for the individual defendants’ assault and 

battery under the state theory of respondeat superior. 

6. Plaintiff seeks compensatory damages, punitive damages, and attorney fees and costs 

against the above-captioned defendants.

JURISDICTION AND VENUE

7. This civil action arises under the Constitution and laws of the United States, and 

therefore this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a). 

8. With regard to state law claims, this Court has supplemental jurisdiction under 28 

U.S.C. § 1367 thus venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(b).

9. The actions giving rise to this complaint took place in the City of Portland, Multnomah 

County, Oregon.

PARTIES

10. Plaintiff was a resident of Portland, Oregon at all times material to this case. 

11. The City is a municipality, incorporated under the laws of the State of Oregon, and 

responsible under state law for the acts and omissions of its employees and officials, including 

those whose conduct is at issue herein. The City is responsible for the constitutional violations 

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at issue in this case because a final policymaker ratified a subordinate’s unconstitutional 

actions. 

12. At all material times herein, Defendant Charles Asheim (“Defendant Asheim”) was an 

officer of the Portland Police Bureau, a subunit of the City, acting within the course and scope 

of his employment and is being sued in his individual capacity as such. Defendant Asheim

carried out the actions complained of in his individual capacity, under the color of state law, 

and in the course and scope of his employment and dues as an employee of the City.

13. At all material times herein, Defendant James Defrain (“Defendant Defrain”) was an 

officer of the Bureau, acting within the course and scope of his employment and is being sued 

in his individual capacity as such. Defendant Defrain carried out the actions complained of in 

his individual capacity, under the color of state law, and in the course and scope of his 

employment and dues as an employee of the City.

14. At all material times herein, Defendant Christopher Burley (“Defendant Burley”) was 

an officer of the Bureau, acting within the course and scope of his employment and is being 

sued in his individual capacity as such. Defendant Burley carried out the actions complained 

of in his individual capacity, under the color of state law, and in the course and scope of his 

employment and dues as an employee of the City.

15. At all material times herein, Defendant Patrick Murphy (“Defendant Murphy”) was an 

officer of the Bureau, acting within the course and scope of his employment and is being sued 

in his individual capacity as such. Defendant Murphy carried out the actions complained of in 

his individual capacity, under the color of state law, and in the course and scope of his 

employment and dues as an employee of the City.

16. At all material times herein, Defendant Brian Dale (“Defendant Dale”) was an officer 

of the Bureau, acting within the course and scope of his employment and is being sued in his 

individual capacity as such. Defendant Dale carried out the actions complained of in his 

individual capacity, under the color of state law, and in the course and scope of his 

employment and dues as an employee of the City.

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17. At all material times herein, Defendant Ken Duilio (“Defendant Duilio”) was an officer 

of the Bureau, acting within the course and scope of his employment and is being sued in his 

individual capacity as such. Defendant Duilio carried out the actions complained of in his 

individual capacity, under the color of state law, and in the course and scope of his 

employment and dues as an employee of the City.

FACTS

18. On the evening of September 13, 2012, officers of the Portland Police Bureau went to 

the home of Elizabeth Prescott, Plaintiff’s girlfriend, to serve an arrest warrant. 

19. After three hours, Plaintiff exited the building with his hands up. One of the individual 

Defendants or another police officer grabbed Plaintiff by the wrist and pulled him to the 

ground. Plaintiff did not resist arrest.

20. One or more of the individual Defendants held Plaintiff to the ground and punched, 

kicked, or otherwise struck Plaintiff, causing serious injuries. 

21. Because of the severity of his injuries, Plaintiff was transported to Emmanuel Hospital 

for treatment. Plaintiff was later transported to Multnomah County Jail.

22. Plaintiff incurred injuries including, but not limited to, concussion, tooth damage, 

nerve damage, optical damage, severe bruising, contusion, post-traumatic stress disorder, 

depression, and memory loss.

23. Plaintiff continues to suffer from injuries including, but not limited to, tooth damage, 

nerve damage, optical damage, severe bruising, post-traumatic stress disorder, depression, and 

memory loss. 

CLAIMS FOR RELIEF

24. Plaintiff brings claims under 42 USC § 1983 for violations of his Fourth Amendment 

rights including excessive force resulting in substantial injury as well as pendant State Law 

claims for Assault and Battery. 

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25. Plaintiff seeks an award of economic damages, non-economic damages, punitive 

damages where appropriate, attorney fees and costs against defendants. 

26. Plaintiff provided Defendants with notice of his intent to pursue claims by sending a 

formal notice to the City that was acknowledged on November 13, 2012 and also by filing a 

pro se complaint in this Court on November 16, 2012. (Case 3:12-cv-02088-TC, dismissed 

without prejudice February 14, 2013). Plaintiff has thereby satisfied the notice requirements of 

the Oregon Tort Claims Act, as specified in ORS 30.275.

FIRST CLAIM FOR RELIEF

Violation of 42 U.S.C. § 1983 – Fourth Amendment – Excessive Use of Force 

Individual Liability

27. Paragraphs 1-26 are incorporated by reference.

28. By their actions as described herein, Defendants Asheim, Defrain, Burley, Murphy, 

Dale, and Duilio (“the individual Defendants”), under color of statute, ordinance, regulation, 

custom, or usage, subjected Plaintiff to the deprivation of his rights, privileges, and immunities 

secured by the Constitution and laws; namely, Plaintiff’s right to freedom from unreasonable 

search and seizure and by the use of excessive force. 

29. The actions of the individual Defendants, as described in this complaint, were 

malicious, deliberate, intentional, and embarked upon with the knowledge of, or in conscious 

disregard of, the harm that would be inflicted upon Plaintiff. As a result of said intentional 

conduct, Plaintiff is entitled to punitive damages against the individual Defendants, in their 

individual capacities, in an amount sufficient to punish them and to deter others from like 

conduct. 

30. The individual Defendants violated rights held by Plaintiff which were clearly 

established, and no reasonable official similarly situated to the individual defendants could 

have believed that their conduct was lawful or within the bounds of reasonable discretion. The 

individual Defendants therefore do not have qualified or statutory immunity from suit or 

liability.

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31. As a direct and proximate result of the actions described herein, Plaintiff sustained 

actual damages including physical injury; pain and suffering; nerve damage; depression; posttraumatic stress disorder; mental and emotional suffering; worry; fear; anguish; shock; anxiety; 

nervousness; chronic stress; and loss of ability to fully perform certain job duties; loss of ability 

to enjoy certain recreational and leisure activities; loss of ability to enjoy a variety of activities 

with family members and friends. As such, Plaintiff is entitled to all to his damages in an 

amount to be ascertained according to proof at trial.

32. As a direct and proximate result of Defendants’ conduct, Plaintiff was required to seek 

medical services and treatment for his injuries in an amount to be determined at trial, and 

will, in the future, be compelled to incur additional medical expenses and loss of wages for 

medical treatment.

33. Plaintiff was required to hire attorneys to represent him in this matter and is thus 

entitled to reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §1988. 

SECOND CLAIM FOR RELIEF

Violation of 42 U.S.C. § 1983 – Monell, Adickes

Municipal Liability

34. Paragraphs 1-26 are incorporated by reference.

35. On information and belief, Portland Police Officers have previously used excessive 

force in similar situations, and the City has expressly encouraged or acquiesced in this 

unlawful behavior, has ratified said conduct through the internal affairs process, and/or tacitly 

encouraged or acquiesced in it by failing to train, supervise, or discipline its officers, thus 

evincing deliberate indifference to Plaintiff’s constitutional rights, sufficient to support a 

verdict that the City’s policy, custom, or practice caused the false and excessively forceful arrest 

of Plaintiff and subsequent prosecution of Plaintiff. 

36. It was the policy and/or custom of the City to inadequately supervise and train its 

officers, including the defendant officers, thereby failing to adequately discourage further 

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constitutional violations on the part of its officers. The City did not require appropriate 

training regarding the appropriate amount of force to be used against a compliant subject.

37. As described above and at least in part, one or more of the City’s policies, official wellestablished practices or acts caused the violation of Plaintiff’s right not to be subjected to 

excessive physical force and his resulting injuries, as guaranteed by the Fourth Amendment to 

the United States Constitution.

38. As a direct and proximate result of the actions described herein, Plaintiff sustained 

actual damages including physical injury; pain and suffering; nerve damage; depression; posttraumatic stress disorder; mental and emotional suffering; worry; fear; anguish; shock; anxiety; 

nervousness; chronic stress; and loss of ability to fully perform certain job duties; loss of ability 

to enjoy certain recreational and leisure activities; loss of ability to enjoy a variety of activities 

with family members and friends. As such, Plaintiff is entitled to all to his damages in an 

amount to be ascertained according to proof at trial.

39. As a direct and proximate result of Defendants’ conduct, Plaintiff was required to seek 

medical services and treatment for his injuries in an amount to be determined at trial, and 

will, in the future, be compelled to incur additional medical expenses and loss of wages for 

medical treatment.

40. Plaintiff was required to hire attorneys to represent him in this matter and is thus 

entitled to reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §1988. 

THIRD CLAIM FOR RELIEF

State Law – Assault

Individual and Municipal Liability

41. Paragraphs 1-26 are incorporated by reference.

42. The individual Defendants engaged in volitional acts with the intent to cause Plaintiff 

to suffer harmful contact. Plaintiff did in fact suffer harmful contact as a result of the 

defendants’ conduct. The City is liable in respondeat superior for the actions of the individual 

Defendants.

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43. The actions of the individual Defendants, as described in this complaint, were 

malicious, deliberate, intentional, and embarked upon the knowledge of, or in conscious 

disregard of, the harm that would be inflicted upon Plaintiff. As a result of said intentional 

conduct, Plaintiff is entitled to punitive damages against the individual Defendants in their 

individual capacities, in an amount sufficient to punish them and to deter others from like 

conduct.

44. As a direct and proximate result of the actions described herein, Plaintiff sustained 

actual damages including physical injury; pain and suffering; nerve damage; depression; posttraumatic stress disorder; mental and emotional suffering; worry; fear; anguish; shock; anxiety; 

nervousness; chronic stress; and loss of ability to fully perform certain job duties; loss of ability 

to enjoy certain recreational and leisure activities; loss of ability to enjoy a variety of activities 

with family members and friends. As such, Plaintiff is entitled to all to his damages in an 

amount to be ascertained according to proof at trial.

45. As a direct and proximate result of Defendants’ conduct, Plaintiff was required to seek 

medical services and treatment for his injuries in an amount to be determined at trial, and 

will, in the future, be compelled to incur additional medical expenses and loss of wages for 

medical treatment.

FOURTH CLAIM FOR RELIEF

State Law – Battery

Individual and Municipal Liability

46. Paragraphs 1-26 are incorporated by reference.

47. The individual Defendants intended to cause and did cause harmful contact with 

Plaintiff’s person. Plaintiff did not consent to Defendants’ actions and the actions were neither 

privileged nor justified. The City is liable in respondeat superior for the actions of the individual 

Defendants.

48. The actions of the individual Defendants, as described in this complaint, were 

malicious, deliberate, intentional, and embarked upon the knowledge of, or in conscious 

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disregard of, the harm that would be inflicted upon Plaintiff. As a result of said intentional 

conduct, Plaintiff is entitled to punitive damages against the individual Defendants in their 

individual capacities, in an amount sufficient to punish them and to deter others from like 

conduct.

49. As a direct and proximate result of the actions described herein, Plaintiff sustained 

actual damages including physical injury; pain and suffering; nerve damage; depression; posttraumatic stress disorder; mental and emotional suffering; worry; fear; anguish; shock; anxiety; 

nervousness; chronic stress; and loss of ability to fully perform certain job duties; loss of ability 

to enjoy certain recreational and leisure activities; loss of ability to enjoy a variety of activities 

with family members and friends. As such, Plaintiff is entitled to all to his damages in an 

amount to be ascertained according to proof at trial.

50. As a direct and proximate result of Defendants’ conduct, Plaintiff was required to seek 

medical services and treatment for his injuries in an amount to be determined at trial, and 

will, in the future, be compelled to incur additional medical expenses and loss of wages for 

medical treatment.

RELIEF REQUESTED

WHEREFORE Plaintiff respectfully requests that the Court, jointly and severally as 

appropriate:

a. Award Plaintiff economic damages in a just sum as determined by a jury;

b. Award Plaintiff non-economic damages in a just sum as determined by a jury;

c. Award Plaintiff punitive damages against the individual Defendants in their 

individual capacities in an amount sufficient to punish them and deter others from 

like conduct;

d. Award Plaintiff his reasonable attorney fees and costs; 

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e. Grant Plaintiff injunctive, declaratory, and equitable relief as the court deems 

appropriate, and

f. Grant Plaintiff such other relief as this Court deems just and proper. 

Plaintiff demands a trial by jury. 

Dated August 14, 2014

s/ Zachary D. Spier . 

Zachary Spier, OSB #124609

405 NW 18th Avenue

Portland, OR 97209

(503) 305-3730

Attorney for Plaintiff Anthony Cross

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