IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

AUSTIN GREGORY, 

Plaintiff, 

v. 

CITY OF NEWBERG; HUNTLEY 

MILLER, Personally; and BRIAN 

CASEY, Personally, 

Defendants. 

LEONARD RANDOLPH BERMAN 

4711 S.W. Huber Street 

Suite E-3 

Portland, OR 97219 

(503) 516-3715 

Attorney for Plaintiff 

STEVEN A. KRAEMER 

BRYCE W. HANKS 

Hart Wagner, LLP 

1000 S.W. Broadway 

Suite 2000 

Portland, OR 97205 

(503) 222-4499 

Attorneys for Defendants 

1 - OPINION AND ORDER 

3:15-CV-00473-BR 

OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 1 of 23
BROWN, Judge. 

This matter comes before the Court on Defendants' Motion 

(#8) for Judgment.on the Pleadings. For the reasons that follow, 

the Court GRANTS Defendants' Motion. 

BACKGROUND 

Plaintiff Austin Gregory alleges the following facts in his 

Complaint: 

On March 31, 2013 at 10:13 a.m., Mr. Gregory, then 

a minor of 16 years, was lawfully in his home at 

819 Zoe Court in Newberg, when Huntley Miller 

visited and spoke with his mother Patricia 

Gregory. Austin Gregory came near the door and 

spoke to Miller. While speaking with Ms. Gregory, 

Miller instructed Miller [sic] to go "into• his 

house or face arrest, while Austin was already 

standing inside the home. 

When Austin verbally challenged Millers' 

authority, saying he was rightfully and lawfully 

in his own home and there was no basis to arrest 

him, Miller lunged in to the home and grabbed 

Austin out of his home, slammed him on to the 

ground and, battered him and arrested him. He 

suffered a concussion and closed head injuries. 

His juvenile conviction[s] for interfering and 

resisting arrest [are] pending appeal in State 

court. 

Plaintiff timely filed a notice of tort claim 

September 23, 2013. 

Compl. at ~~ 8-11. Although it is not entirely clear in his 

Complaint, the parties clarify in their later briefing that 

Plaintiff was arrested for and charged with the crime of 

interfering with a police officer as well as with the crime of 

2 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 2 of 23
resisting arrest arising from his conduct during his arrest for 

interfering with a police officer. In addition, neither of 

Plaintiff's convictions for ihterfering with a police officer or 

resisting arrest have been overturned or expunged on appeal. 

On March 23, 2015, Plaintiff filed a Complaint in this Court 

against the City of Newberg, Officer Miller, and Chief of Newberg 

Police Brian Casey asserting claims pursuant to 42 U.S.C. § 1983 

for (1) wrongful arrest in violation of the Fourth Amendment to 

the United States Constitution, (2) excessive force in violation 

of the Fourth Amendment, and (3) a claim under Monell v. 

Department of Social Services, 436 U.S. 658 (1978). Plaintiff 

also asserted state-law claims for negligence, false arrest, 

battery, and malicious prosecution. 

On June 1, 2015, Defendants filed a Motion for Judgment on 

the Pleadings as to all of Plaintiff's claims. The Court took 

the Motion under advisement on June 29, 2015. 

STANDARDS 

Federal Rule of Civil Procedure 12(c) provides: 

After the pleadings are closed but within such 

time as not to delay the trial, any party may move 

for judgment on the pleadings. If, on a motion 

for judgment on the pleadings, matters outside the 

pleadings are presented to and not excluded by the 

court, the motion shall be treated as one for 

summary judgment and disposed of as provided in 

Rule 56, and all parties shall be given reasonable 

opportunity to present all material made pertinent 

to such a motion by Rule 56. 

3 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 3 of 23
For purposes of a motion pursuant to Rule 12(c), the court must 

accept the nonmoving party's allegations as true and view all 

inferences in a light most favorable to the nonmoving party. 

Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). A 

judgment on the pleadings is properly granted when, taking all 

allegations in the nonmoving party's pleadings as true, the 

moving party is entitled to judgment as a matter of law. Compton 

Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir. 

2010) . "To survive a Rule 12(c) motion, the complaint must 

contain sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face." Davis v. Astrue, 

Nos. C-06-6108 EMC, C-09-0980 EMC, 2011 WL 3651064, at *l (N.D. 

Cal. Aug. 18, 2011) (citation omitted). See also Cafasso v. Gen. 

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011) (A 

Rule 12(c) motion is "functionally identical to a Rule 12(b) (6) 

motion to dismiss for failure to state a claim, and therefore the 

same legal standard applies.") . 

DISCUSSION 

As noted, Defendants move for judgment on the pleadings as 

to all of Plaintiff's claims. 

I. Heck v. Humphrey bars Plaintiff's§ 1983 claim for wrongful 

arrest. 

Defendants assert Plaintiff's§ 1983 claim for wrongful 

4 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 4 of 23
arrest is barred by Heck v. Humphrey, 512 U.S. 477 (1994), 

because a judgment in favor of Plaintiff in this action as to 

that claim would necessarily imply the invalidity of Plaintiff's 

convictions in state court for interfering with a police officer 

and resisting arrest. 

Plaintiff, however, asserts Heck does not apply to the 

juvenile adjudications against Plaintiff for interfering with a 

police officer and resisting arrest. 

A. Heck Doctrine. 

In Heck the Supreme Court held: 

[I]n order to recover damages for allegedly 

unconstitutional conviction or imprisonment, or 

for other harm caused by actions whose 

unlawfulness would render a conviction or sentence 

invalid, a § 1983 plaintiff must prove that the 

conviction or sentence has been reversed on direct 

appeal, expunged by executive order, declared 

invalid by a state tribunal authorized to make 

such determination, or called into question by a 

federal court's issuance of a writ of habeas 

corpus, 28 U.S.C. § 2254. A claim for damages 

bearing that relationship to a conviction or 

sentence that has not been so invalidated is not 

cognizable under § 1983. Thus, when a state 

prisoner seeks damages in a § 1983 suit, the 

district court must consider whether a judgment in 

favor of the plaintiff would necessarily imply the 

invalidity of his conviction or sentence; if it 

would, the complaint must be dismissed unless the 

plaintiff can demonstrate that the conviction or 

sentence has already been invalidated. 

512 U.S. at 486-87 (footnotes omitted). 

In Smith v. City of Hemet the Ninth Circuit reiterated: 

"[I]f a criminal conviction arising out of the same facts stands 

5 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 5 of 23
and is fundamentally inconsistent with the unlawful behavior for 

which section 1983 damages are sought, the 1983 action must be 

dismissed." 394 F.3d 689, 695 (9th Cir. 2005) (quotation 

omitted). "Consequently, 'the relevant question is whether 

success in a subsequent § 1983 suit would necessarily imply or 

demonstrate the invalidity of the earlier conviction or 

sentence.'" Beets v. County of Los Angeles, 669 F.3d 1038, 1042 

(9th Cir. 2012) (quoting Heck, 512 U.S. at 487). 

B. Heck applies to Plaintiff's juvenile adjudication. 

Plaintiff notes he was a juvenile at the time of the 

events at issue, and his adjudication occurred in juvenile court. 

Plaintiff, however, asserts his juvenile adjudication is not 

susceptible to a Heck challenge. 

Although this district has not explicitly resolved 

whether a juvenile adjudication is susceptible to a Heck 

challenge, the Court notes at least two judges in the district 

assumed, without deciding, that Heck would apply. See Baldenegro 

v. Naylor, No. 1:11-cv- 03038-CL, 2012 WL 2367380, at *1 (D. Or. 

May 10, 2012), Finding and Recommendation adopted by Judge Ovren 

Fanner, 2012 WL 2367377 (D. Or. June 21, 2012). Courts in other 

jurisdictions, in any event, have held Heck applies to juvenile 

adjudications. See, e.g., Adkins v. Johnson, 482 F. App'x 318, 

319 (10th Cir. 2012) (" [T]he district court correctly ruled that 

Heck v. Humphrey, 512 U.S. 477 (1994), bars a suit for damages 

6 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 6 of 23
based on the allegations that implicate the validity of the five 

juvenile judgments."); Grande v. Keansburg Borough, No. 

12-1968(JAP), 2013 WL 2933794, at *6 (D.N.J. June 13, 2013) 

-(applying Heck to § 1983 claim based on a juvenile adjudication) 

Similarly, in jurisdictions with state laws that 

establish juvenile adjudications are not convictions, courts 

have, nevertheless, held Heck applies. For example, in Morris v. 

City of Detroit the court recognized even though a juvenile 

adjudication is not a criminal proceeding under Michigan law, a 

juvenile adjudication retains many of the procedural rights and 

features of a criminal proceeding and is, therefore, "certainly 

the functional equivalent" of a criminal conviction. 211 F. 

App'x 409, 411 (6th Cir. 2006). In Dominguez v. Shaw although 

the court noted a juvenile adjudication is not a conviction under 

Arizona law, the court, nevertheless, found there was not any 

"reason to treat juvenile adjudications differently than adult 

convictions for the purposes of Heck analysis." No. CV 10-

01173-PHX-FJM, 2011 WL 4543901, at *2-*3 (D. Ariz. Sept. 30, 

2011) . The court noted: 

The crucial issue in assessing whether Heck bars 

[the plaintiff's] § 1983 claim is whether a 

finding by this court that the defendants' conduct 

warrants damages would necessarily invalidate the 

juvenile court's finding that [the plaintiff] 

engaged in illegal conduct. Whether the juvenile 

court's finding is labeled a conviction or an 

adjudication is, for Heck purposes, irrelevant 

If success on the § 1983 claim would 

undermine [the plaintiff's] juvenile adjudication, 

7 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 7 of 23
which has not been reversed or set aside, the 

claim has not yet accrued. 

Id., at *3 (citation omitted). 

Oregon courts have held "any procedure constitutionally 

required in criminal proceedings which is one of the essentials 

of due process and fair treatment will be required in juvenile 

proceedings." State ex rel. Juvenile Dep't of Marion Cnty. v. 

Smith, 126 Or. App. 646, 650 (1994) (quotation omitted). 

Accordingly, in a juvenile adjudication the juvenile has the 

right to notice of the charges against him, the right to counsel, 

the right to require the state to prove his case beyond a 

reasonable doubt, and the rights of confrontation and 

cross-examination. Id. at 242 n.5. The juvenile also enjoys the 

privilege against self-incrimination and the prohibition against 

double jeopardy. Id. The Court concludes in Oregon, as in 

Arizona and Michigan, a juvenile adjudication is the functional 

equivalent of an adult criminal proceeding for purposes of Heck. 

Accordingly, the Court concludes Heck applies to bar Plaintiff's 

claims under § 1983 to the extent that they would necessarily 

imply the invalidity of Plaintiff's juvenile adjudication for 

resisting arrest and interfering with a police officer. 

C. Heck bars Plaintiff's§ 1983 claim for wrongful arrest. 

In his § 1983 claim for wrongful arrest Plaintiff 

relies on the allegations in ~~ 8-11 of his Complaint and asserts 

Officer Miller arrested him for interfering with a police officer 

8 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 8 of 23
without probable cause and wrongfully charged him with resisting 

arrest. As noted, however, Plaintiff's adjudications for 

interfering with a police officer and resisting arrest have not 

been overturned or expunged. 

The Ninth Circuit has held a plaintiff's claim for 

wrongful arrest is barred under Heck when, as here, the plaintiff 

is unable to show both that his conviction is not inconsistent 

with such a claim and that the conviction was overturned or 

reversed. See, e.g., Backus v. Gissel, 491 F. App'x 838, 839 

(9th Cir. 2012) (affirming district court's dismissal of the 

plaintiff's§ 1983 claims for false arrest and malicious 

prosecution "as Heck-barred" because success on those claims 

would necessarily imply the invalidity of the plaintiff's arrest 

and conviction.); Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 

2006) (Heck barred the plaintiff's claims under§ 1983 for 

wrongful arrest, malicious prosecution, and conspiracy because 

success on those claims "would necessarily imply the invalidity 

of his two convictions for possession of narcotics. Wrongful 

arrest, malicious prosecution, and a conspiracy among Los Angeles 

officials to bring false charges against [the plaintiff] could 

not have occurred unless he were innocent of the crimes for which 

he was convicted."); Johnson v. Arndt, 124 F. App'x 514, 515 (9th 

Cir. 2005) ("The district court properly dismissed without 

prejudice [the plaintiff's] illegal seizure and wrongful arrest 

9 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 9 of 23
claims [as barred by Heck] because success on these claims would 

necessarily imply the invalidity of [the plaintiff's) 

convictions, and he has not demonstrated that those convictions 

have been overturned."). 

District courts in the Ninth Circuit have reached the 

same conclusion. For example, in Sjogren v. City of Seaside the 

plaintiff was charged with interfering with a police officer and 

resisting arrest under Oregon law, pled no contest to those 

charges, and was convicted of both crimes. The plaintiff then 

brought an action under § 1983 for, among other things, wrongful 

arrest. Specifically, the plaintiff asserted the officer did not 

have probable cause to arrest the plaintiff for interfering with 

a police officer and "brought unfounded criminal charges against 

him." No. 05-CV-1478-ST, 2007 WL 221869, at *5 (D. Or. Jan. 19, 

2007). The court held the plaintiff's claim for arrest without 

probable cause was barred by Heck because the plaintiff's 

convictions for interfering with a police officer and resisting 

arrest had not been expunged or overturned and "the validity of 

an arrest, prosecution and conviction may be challenged only by 

writ of habeas corpus." 

Similarly in Dowd v. County of Kern the plaintiff was 

arrested and convicted of interfering with a peace officer. 

No. 1:12-cv-01063-LJO-JLT, 2012 WL 3704827, at *3 (E.D. Cal. 

Aug. 27, 2012). The plaintiff brought a§ 1983 action alleging, 

10 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 10 of 23
among other things, a claim for wrongful arrest on the ground 

that the police officer lacked probable cause to arrest him. The 

court held Heck barred the plaintiff's wrongful-arrest claim 

because the plaintiff's conviction for interfering with a peace 

officer had not been invalidated and a judgment in favor of the 

plaintiff on his wrongful-arrest claim ftwould necessarily imply 

the invalidity of his conviction.n Id., at *4. 

As in Backus, Guerrero, Johnson, Sjogren, and Dowd 

Plaintiff's§ 1983 claim for wrongful arrest is barred by Heck 

because success on this claim based on the lack of probable cause 

for Plaintiff's arrest would necessarily imply the invalidity of 

his juvenile adjudication. Accordingly, the Court grants 

Defendants' Motion for Judgment on the Pleadings as to 

Plaintiff's§ 1983 claim for wrongful arrest and dismisses that 

claim without prejudice. 

II. Heck bars Plaintiff's state-law claim for false arrest. 

Defendants assert Plaintiff's state-law claim for false 

arrest is barred by Heck. 

Plaintiff contends he was falsely arrested because Officer 

Miller did not have probable cause to arrest him for interfering 

with a police officer. "Heck . . generally bars a claim for 

false arrest under § 1983 if success in the false arrest suit 

would be inconsistent with an underlying conviction." Hart v. 

Parks, 450 F.3d 1059, 1065 n.5 (9'h Cir. 2006). See also Radwan 

11 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 11 of 23
v. County of Orange, 519 F. App'x 490, 491 n.l (9th Cir. 2013) 

("Heck also bars Radwan's state-law false arrest claims because 

success on those claims· would call into question the lawfulness 

of his prior conviction for marijuana possession."). 

Under Oregon law ''the tort [of false arrest] has four 

elements: ( 1) defendant must confine plaintiff; (2) defendant 

must intend the act that causes the confinement; (3) plaintiff 

must be aware of the confinement; and (4) the confinement must be 

unlawful." Hiber Creditors Collection Serv., Inc., 154 Or. App. 

408, 413 (1998) (citing Lukas v. J.C. Penney Co., 233 Or. 345, 353 

(1963), and Walker v. City of Portland, 71 Or. App. 693, 697 

(1985)). 

Here the Oregon courts have not reversed, expunged, or 

questioned Plaintiff's adjudication, and success on Plaintiff's 

false-arrest claim on the ground of lack of probable cause would 

call into question the lawfulness of his adjudication for 

interfering with a police officer and resisting arrest. The 

Court, therefore, concludes Plaintiff's claim under § 1983 for 

false arrest is barred under Heck. 

Accordingly, the Court grants Defendants' Motion for 

Judgment on the Pleadings as to Plaintiff's state-law claim for 

false arrest and dismisses that claim without prejudice. 

III. Heck bars Plaintiff's§ 1983 claim for excessive force. 

Plaintiff asserts Officer Miller violated Plaintiff's right 

12 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 12 of 23
not to be subjected to excessive force when he grabbed Plaintiff, 

slammed him on the ground, and arrested him for resisting arrest 

and interfering with a police officer. Defendants assert Heck 

bars Plaintiff's claim for excessive force because Plaintiff was 

adjudicated for resisting arrest under Oregon Revised Statute 

§ 162.315 and success on Plaintiff's excessive force claim would 

necessarily imply the invalidity of his adjudication for 

resisting arrest. 

Oregon Revised Statute § 162.315(1) provides: "A person 

commits the crime of resisting arrest if the person intentionally 

resists a person known by the person to be a peace officer 

in making an arrest." In addition, Oregon Revised Statute 

§ 161. 260 provides: "A person may not use physical force to 

resist an arrest by a peace officer who is known or reasonably 

appears to be a peace officer, whether the arrest is lawful or 

unlawful." Oregon Revised Statute§ 161.290, however, permits an 

individual "to use such force as is necessary to overcome what 

the person reasonably believes to be the unlawful use of physical 

force by anyone, including a police officer." State v. Oliphant, 

347 Or. 175, 193 (2009). 

The Oregon Supreme Court resolved the "apparent conundrum" 

that under Oregon law "[a] person may not use force to resist 

arrest, even if the arrest is unlawful, but any person is 

entitled to use such force as is necessary to overcome what the 

13 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 13 of 23
person reasonably believes to be the unlawful use of physical 

force by anyone, including a police officer" as follows: 

"it is crucial to distinguish between (1) the use 

of physical force in resisting arrest and (2) the 

use of physical force in defending oneself, i.e., 

self-defense, against excessive use of force by 

the arresting officer. 

* * * 

"If a peace officer uses excessive force in making 

an arrest, the arrestee has a right to use 

physical force in self-defense against the 

excessive force being used by the officer. 

In that circumstance, the arrestee is not 

resisting arrest, but, rather, is defending 

against the excessive force being used by the 

arresting officer." 

Id. (quoting State v. Wright, 310 Or. 430, 434-35 (1990)). It is 

not clear on this record whether Plaintiff raised a defense of 

self-defense in his juvenile adjudication. If Plaintiff raised 

such a defense, it could be properly inferred that Officer Miller 

did not use excessive force. If Plaintiff did not raise the 

issue of self-defense but succeeded on his § 1983 excessive-force 

claim, his success would necessarily imply the invalidity of his 

adjudication for resisting arrest. The Court, therefore, 

concludes Heck bars Plaintiff's § 1983 excessive-force claim. 

Accordingly, the Court grants Defendants' Motion for 

Judgment on the Pleadings as to Plaintiff's§ 1983 claim for 

excessive force and dismisses that claim without prejudice. 

IV. Heck bars Plaintiff's state-law battery claim. 

Plaintiff relies on the facts stated in ]] 8-11 of his 

14 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 14 of 23
Complaint and asserts Officer Miller's actions "constituted the 

tort of battery." Defendants, in turn, assert Heck bars 

Plaintiff's battery claim. 

Under Oregon law the elements of a battery claim are wellestablished: 

"[T]he conduct which brings about the harm must be 

an act of volition on the actor's part, and the 

actor must have intended to bring about a harmful 

or offensive contact or put the other party in 

apprehension thereof. It is not necessary that 

the contact do actual physical harm - it is 

sufficient if the contact is offensive or 

insulting." 

Johnson v. Jones, 269 Or. App. 12, 17 (2015) (quoting Bakker v. 

Baza 'r, Inc., 275 Or. 245, 249 (1976)). "Thus, a 'battery is a 

voluntary act that is intended to cause the resulting harmful or 

offensive contact.'" Id. (quoting Harris v. Pameco Corp., 170 

Or. App. 164, 169 (2000)). 

In Ballard v. City of Albany the plaintiff asserted 

defendant police officers committed battery against him during 

his arrest when they "intentionally and recklessly deployed their 

police dog, sprayed, beat and attacked plaintiff." 221 Or. App. 

630, 640 (2008). The court noted: 

A "battery" is a "voluntary act that is intended 

to cause the resulting harmful or offensive 

contact." Walthers v·. Gossett, 148 Or. App. 548., 

552 (1997). [A] police officer is justified 

under [Oregon Revised Statute§ 161.235] in using 

physical force when he or she believes it is 

reasonably necessary to make an arrest, see Gigler 

v .. Klamath Falls, 21 Or. App. 753, 763 (1975), and 

a police officer is presumed to be acting in good 

15 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 15 of 23
faith in determining the amount of force necessary 

to make the arrest. Rich v. Cooper, 234 Or. 300, 

309 (1963). However, the use of excessive force 

by a police officer in carrying out an arrest can 

give rise to civil liability for battery. 

Id. at 640-41. Thus, only excessive force by a police officer 

carrying out an arrest can give rise to civil liability for 

battery. In addition, as noted in the excessive-force claim 

analysis, when "a peace officer uses excessiv~ force in making an 

arrest, the arrestee has a right to use physical force in 

self-defense. In that circumstance, the arrestee is not 

resisting arrest, but, rather, is defending against the excessive 

force being used by the arresting officer." Oliphant, 347 Or. at 

193 (quotation omitted) . 

As with Plaintiff's claim for excessive force, success on 

Plaintiff's claim of battery would necessarily imply. the force 

used by Officer Miller was excessive; that Plaintiff had a right 

to defend against the excessive force; and, therefore, that 

Plaintiff was not resisting arrest. Thus, success on Plaintiff's 

claim for battery would necessarily call into question his 

conviction for resisting arrest. The Court, therefore, concludes 

Heck bars Plaintiff's battery claim. 

Accordingly, the Court grants Defendants' Motion for 

Judgment on the Pleadings as to Plaintiff's battery claim. 

V. Heck bars Plaintiff's state-law claim for malicious 

prosecution. 

Plaintiff asserts Defendants committed malicious prosecution 

16 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 16 of 23
when they commenced prosecution against Plaintiff without 

probable cause to prosecute. To establish malicious prosecution 

under Oregon law a plaintiff must prove (1) the defendant 

initiated or prosecuted a judicial proceeding against the 

plaintiff, ( 2) the proceeding terminated in the plaintiff's 

favor, (3) the defendant lacked probable cause to prosecute the 

action, (4) the defendant acted with malice or with the "primary 

purpose other than that of securing an adjudication of the claim 

by the defendant,'' and (5) the plaintiff suffered damages. 

v. Rein, 215 Or. App. 113, 125 (2007). 

Perry 

Plaintiff states in his Complaint that his appeal of his 

adjudication for resisting arrest and interfering with a police 

officer is pending. Plaintiff, therefore, has not and cannot 

allege his adjudication terminated in his favor. 

Accordingly, the Court grants Defendants' Motion for 

Judgment on the Pleadings as to Plaintiff's state-law claim for 

malicious prosecution and dismisses that claim without prejudice. 

VI. Plaintiff does not sufficiently state a negligence claim. 

Plaintiff alleges Defendant City of Newberg was negligent 

because it (1) failed "to administer training and to timely and 

appropriately hire, train and supervise employees regarding 

dealing with citizens safelyn; (2) failed "to hire, train and 

supervise employees regarding safe restraint of civilians"; and 

(3) failed "to train for legal bases to arrest." Plaintiff also 

17 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 17 of 23
asserts the individual officers "were negligent in their dealings 

with plaintiff in causing injury without provocation or 

justification." 

Defendants assert Plaintiff's negligence claim fails because 

in this district "a·state common-law claim of negligence may be 

maintained separately from a § 1983 claim only when the 

negligence claim is based on facts that are different from the 

facts on which the § 1983 claims are based." Whitfield v. 

Tri-Metropolitan Transp. Dist., No. 06-1655-HA, 2009 WL 839484, 

at *11 (D. Or. Mar. 30, 2009) (citing Shilo v. City of Portland, 

Civ. No. 04-130-AS, 2005 WL 3157563, *1 (D. Or. Nov. 22, 2005)). 

As the court explained in Shilo: 

[M]ere negligence cannot sustain a § 1983 claim 

Thus, as a matter of principle, the court 

recognizes that a plaintiff may allege negligence 

as a basis for recovery separate from § 1983 for 

acts arising in the Fourth Amendment search and 

seizure context. The negligence claim, however, 

should not be founded on the same facts that give 

rise to the § 1983 claim. 

Shilo, 2005 WL 3157563, at * 1 (citing Lewis v. City of St. 

Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001)). 

Here Plaintiff's negligence claim is based on the same set 

of facts that give rise to his § 1983 claim for excessive force 

and his § 1983 Monell claim. The Court, therefore, grants 

Defendants' Motion for Judgment on the Pleadings as to 

Plaintiff's claim for negligence and dismisses that claim with 

leave to file an Amended Complaint to the extent that Plaintiff 

18 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 18 of 23
can allege negligence based on a separate set of facts or allege 

a claim for negligence specifically in the alternative to his 

§ 1983 claims. 

VII. Plaintiff does not sufficiently state a claim under Moneii. 

In Monell v. Department of Social Services of City of New 

York the Supreme Court held municipalities are "persons" subject 

to damages liability under section 1983 when "action pursuant to 

official municipal policy of some nature cause[s] a 

constitutional tort." 436 U.S. 658, 691 (1978). The Supreme 

Court made clear that the municipality itself must cause the 

constitutional deprivation and that a city may not be held 

vicariously liable for the unconstitutional acts of its employees 

under the theory of respondeat superior. Id. See also City of 

Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring "a direct 

causal link between a municipal policy or custom and the alleged 

constitutional deprivation"). 

The Ninth Circuit has held a plaintiff may establish 

municipal liability under Monell in one of three ways: (1) the 

officer "committed the alleged constitutional violation pursuant 

to a formal governmental policy or a longstanding practice or 

custom which constitutes the standard operating procedure of the 

local governmental entity," (2) "the individual who committed the 

constitutional tort was an official with final policy-making 

authority," or (3) "an official with final policy-making 

19 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 19 of 23
authority ratified a subordinate's unconstitutional decision or 

action and the basis for it.n Gillette v. Delmore, 979 F.2d 

1342, 1346-47 (9th Cir. 1992). See also Heath v. City of Desert 

Hot Springs, No. 13-55946, 2015 WL 3942839, at *3 (9th Cir. 

June 29, 2015) (same). 

In his Monell claim Plaintiff alleges: 

Huntley Miller, acting under color of law, 

deprived plaintiff of his Fourth Amendment rights. 

Brian Casey, acting as Chief of Police was the 

final policymaker for City of Newberg as to 

officer conduct and he knowingly ratified and 

approved of deputies excessive force without 

reasonable suspicion or probable cause that a 

crime had been committed or a danger existed. 

In the alternative, there exists a custom, 

unwritten policy or practice to use excessive 

force on citizens based on prior tort claims and 

actions against Miller and other Newberg officers. 

Compl. at ~~ 23-25. Defendants, in turn, assert Plaintiff has 

not sufficiently stated a claim for Monell liability against the 

City of Newberg. 

In AE ex rel. Hernandez v. County of Tulare the Ninth 

Circuit addressed the level of pleading sufficient to state a 

claim under Monell in light of the Supreme Court's decisions in 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft 

20 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 20 of 23
v. Iqbal, 556 U.S. 662 (2009) . 1 666 F.3d 631, 636-37 (9th Cir. 

2012). The court noted: 

In the past, our cases have not required parties 

to provide much detail at the pleading stage 

regarding such a policy or custom. "In this 

circuit, a claim of municipal liability under 

§ 1983 is sufficient to withstand a motion to 

dismiss even if the claim is based on nothing more 

than a bare allegation that the individual 

officers' conduct conformed to official policy, 

custom, or practice." [Whitaker v. Garcetti, 486 

F.3d 572, 581 (9th Cir. 2007)] (citation and 

internal quotation marks omitted). 

* * * 

[After Twombly and Iqbal, however, ] . "to be 

entitled to the 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. Second, the factual 

allegations that are taken as true must 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." 

Hernandez, 666 F.3d at 637 (quoting Starr v. Baca, 652 F.3d 1202 

(9th Cir. 2011)). 

Plaintiff's allegations in his Monell claim may have 

satisfied the pre-Twombly/Iqbal standard. See Hernandez, 666 

F.3d at 638 n.6 ("[A]t the time [the district court] denied [the 

1 Although Twombly and Iqbal address the pleading standard 

for a Motion to Dismiss under Rule 12(b) (6), the Ninth Circuit 

has held a Rule 12(c) motion is "functionally identical to a Rule 

12(b) (6) motion to dismiss for failure to state a claim, and 

therefore the same legal standard applies." Cafasso, 637 F.3d at 

1055 n.4. 

21 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 21 of 23
plaintiff] leave to amend, our precedent required no more than 

the allegation that the government officials acted pursuant to an 

established policy or custom."). Plain~iff's allegations, 

however, do not satisfy the current pleading standard because 

they do not include sufficient allegations of underlying facts to 

give fair notice to Defendants or to enable Defendants to defend 

themselves effectively. In addition, Plaintiff's factual 

allegations underlying his Monell claim, even when viewed as 

true, do not "plausibly suggest an entitlement to relief." 

Accordingly, the Court grants Defendants' Motion for. 

Judgment on the Pleadings as to Plaintiff's Monell claim. The 

Court, however, grants Plaintiff leave to file an Amended 

Complaint to cure the deficiencies of his Monell claim. 

CONCLUSION 

For these reasons, the Court GRANTS Defendants' Motion (#8) 

for Judgment on the Pleadings. The Court also GRANTS Plaintiff 

leave to file an Amended Complaint no later than October 9, 2015, 

only (1) to the extent that Plaintiff can allege negligence based 

on a separate set of facts or allege a claim for negligence 

specifically in the alternative to his § 1983 claims and (2) to 

cure the deficiencies of his Monell claim as set out in this 

Opinion and Order. Plaintiff is advised that failure to file an 

Amended Complaint will result in dismissal of this matter with 

22 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 22 of 23
prejudice. 

IT IS SO ORDERED. 

DATED this 18th day of September, 2015. 

ANNA J. BROWN 

United States District Judge 

23 - OPINION AND ORDER 

Case 3:15-cv-00473-BR Document 11 Filed 09/21/15 Page 23 of 23