PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TIMOTHY HEIDT,

Plaintiff,

v.

CITY OF MCMINNVILLE, acting by and 

through the MCMINNVILLE POLICE 

DEPARTMENT, a municipal corporation;

RON NOBLE, former Chief of Police, City 

of McMinnville, in his individual capacity;

MATT SCALES, Chief of Police, City of 

McMinnville, in his official and individual 

capacities; YAMHILL COUNTY, a 

municipal corporation; and BRADLEY 

BERRY, in his official and individual 

capacities as District Attorney of Yamhill 

County for injunctive relief,

Defendants.

Case No. 3:15-cv-00989-SI

OPINION AND ORDER

Jeffrey H. Boiler, BOILER LAW FIRM, P.O. Box 101 Vida, OR 97488; and Joseph R. Shaeffer, 

MACDONALD HOAGUE & BAYLESS, 705 Second Avenue, Suite 1500, Seattle, WA 98104-1754. 

Of Attorneys for Plaintiff.

Steven A. Kraemer and Leslie A. Edenhofer, KRAEMER & EDENHOFER, P.O. Box 1469, Lake 

Oswego, OR 97035. Of Attorneys for Defendants City of McMinnville, Ron Noble, and Matt 

Scales.

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PAGE 2 – OPINION AND ORDER

David C. Lewis, MILLER & WAGNER LLP, 2210 N.W. Flanders Street, Portland, OR 97210-

3408. Of Attorneys for Defendant Yamhill County.

Ellen F. Rosenblum, Attorney General, and Tracy J. White, Senior Assistant Attorney General, 

OREGON DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem, OR 97301-4096. Of Attorneys 

for Defendant Bradley Berry. 

Michael H. Simon, District Judge.

Plaintiff Timothy Heidt (“Heidt”), a sergeant with the McMinnville Police Department, 

brings this suit under 42 U.S.C. § 1983 against his employer, City of McMinnville, acting by and 

through the McMinnville Police Department (“MPD”), as well as against former MPD police 

chief Ron Noble (“Noble”), current MPD police chief Matt Scales (“Scales”) (collectively, “City 

Defendants”), Yamhill County, and Yamhill County District Attorney Bradley Berry (“Berry”).

Heidt’s first Complaint, brought against only the City Defendants, was dismissed without 

prejudice and with leave to amend. Heidt then filed a First Amended Complaint, also against 

only the City Defendants. The City Defendants filed a motion to dismiss Heidt’s First Amended 

Complaint. Heidt responded by filing a motion to file a Second Amended Complaint (“SAC”), 

which the Court granted. 

In his SAC, Heidt adds Defendants Yamhill County and Berry and alleges two claims for 

relief—one claim alleging retaliation for protected speech and petitioning under the First 

Amendment, and one claim alleging procedural and substantive due process violations under the 

Fourteenth Amendment. Before the Court are Defendants MPD, Noble, and Scales’ motion to 

dismiss, Defendant Yamhill County’s motion to dismiss, and Defendant Berry’s motion to 

dismiss Heidt’s SAC, all under Federal Rule of Civil Procedure 12(b)(6). For the reasons 

discussed below, the Court grants these motions and dismisses Heidt’s claims in his SAC.

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PAGE 3 – OPINION AND ORDER

STANDARDS

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 

Sol., 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 plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing 

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

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PAGE 4 – OPINION AND ORDER

BACKGROUND

For purposes of this motion, the Court accepts the well-pleaded material facts from 

Heidt’s SAC (ECF 42) as true.1 Heidt was hired by the MPD as a reserve police officer in 1992

and as a full-time police officer in 1997. In February 2010, Heidt was involved in a use of force 

incident. As a result, an investigation was launched, which exonerated Heidt on March 14, 2010. 

In January 2013, Defendant Noble, who was then MPD’s Police Chief, organized a 

review board to reexamine Heidt’s February 2010 use of force incident, allegedly in violation of 

the collective bargaining agreement in place through Heidt’s union, the McMinnville Police 

Association (“MPA”). This review was performed for the MPD in large part by Captain 

Alexander of the Woodburn Police Department. Captain Alexander prepared a report on the use 

of force incident that questioned Heidt’s credibility.

On March 22, 2013, Defendant Noble adopted a policy under which internal police

investigations will be disclosed to the District Attorney’s office so they can be reviewed for 

Brady material.2 Under that policy, on April 19, 2013, Defendant Noble forwarded the report 

compiled by Captain Alexander reexamining Heidt’s February 2010 use of force incident to 

Defendant Berry, the Yamhill County District Attorney. Defendant Noble asked Defendant 

Berry whether Heidt “retains sufficient credibility to provide courtroom testimony.” Defendant 

Berry then issued a “Brady admonition,” containing the report compiled by Captain Alexander,

 

1 As the Court has previously ruled, any alleged facts occurring before June 4, 2013 are 

outside of the applicable statute of limitations for Heidt’s § 1983 claim. They will be considered 

only as evidence of motive or otherwise to provide context for Heidt’s claims based on events 

occurring within the statute of limitations. The Court previously discussed the statute of 

limitations in deciding Defendants’ first motion to dismiss. ECF 14 at 6.

2

Brady material is exculpatory or impeaching evidence, which prosecutors are required 

to disclose to defense counsel under Brady v. Maryland, 373 U.S. 83 (1963).

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PAGE 5 – OPINION AND ORDER

and sent it to many criminal defense counsel with an explanation that the report might be 

exculpatory as to Heidt’s credibility as a witness. 

Defendant Noble also sought the opinion of the City Attorney regarding Heidt’s ability to 

testify in light of Heidt’s questioned credibility. The City Attorney opined that that based on her 

initial review, “which is admittedly prior to the due process hearing before you [Noble] have had 

a chance to hear his [Heidt’s] full explanation, it appears to me that [Heidt’s] credibility is 

detrimentally impacted to the extent that I cannot rely upon him as a witness for the 

prosecution.” SAC ¶ 4.16.2. 

Predicated on the City Attorney’s opinion, Defendant Berry’s Brady admonition against 

Heidt, and Captain Alexander’s determination that Heidt had engaged in an excessive use of 

force, Defendants Noble and MPD terminated Heidt’s employment on June 6, 2013. Heidt filed a 

grievance with the MPA, challenging that termination. Heidt’s grievance arbitration proceeding

was held on March 11 and 12, 2014. The arbitrator took testimony and heard argument from 

Heidt and others regarding Heidt’s alleged use of force on a criminal suspect, concerns about

Heidt’s credibility, constitutional requirements of disclosure under Brady v. Maryland, the Brady

admonition against Heidt, and whether there was just cause for the termination of Heidt’s 

employment. The arbitrator issued a 63-page opinion that rejected the findings and conclusions 

reached by Captain Alexander in his report regarding Heidt’s alleged excessive use of force. On 

July 23, 2014, the arbitrator fully reinstated Heidt with back pay and benefits. 

Heidt alleges that on August 29, 2014, management personnel of the MPD, including 

Defendant Scales who was then the Police Chief, notified the Yamhill County District Attorney’s 

Office of Heidt’s reinstatement. On October 6 and 31, 2014, the MPD and Defendant Scales

instructed Heidt to appear and defend himself in a “name clearing” proceeding that Heidt alleges 

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PAGE 6 – OPINION AND ORDER

was conducted only “nominally” by the Yamhill County District Attorney’s Office. Defendant 

Berry presided over the hearing with several deputy prosecutors present, but Heidt’s attorney 

was not permitted to present evidence or argument, and Heidt was not permitted to cross 

examine witnesses.

After these proceedings, Defendant Berry issued a “Brady letter,” informing Heidt that 

based on reports of his conduct the Yamhill County District Attorney had “‘no choice but to 

disqualify you as a witness for the State due to a lack of confidence in you as a witness.’” SAC ¶ 

4.28. Due to this determination by Defendant Berry (hereinafter referred to as the “Brady

Determination”), the MPD and Defendant Scales changed Heidt’s work duties and shift 

assignments. Heidt alleges that the changes in his position have resulted in second-class officer 

status, which has been humiliating and caused damage to his reputation and future employment 

opportunities.

DISCUSSION

A. Heidt’s First Amendment Retaliation Claim Against the City Defendants

Heidt alleges that as a result of his speech and petitioning activities during his grievance 

arbitration proceeding, the City Defendants retaliated against Heidt by significantly altering his 

work duties. The City Defendants move to dismiss Heidt’s § 1983 First Amendment retaliation 

claim as failing to state a claim under the First Amendment’s public employee framework. The 

City Defendants argue that Heidt has not alleged how his speech or petitioning qualifies as a 

matter of public concern or that any protected speech or petitioning was a substantial or 

motivating factor in Heidt’s alleged adverse employment action.

Heidt responds first that the First Amendment’s public employee framework should not 

apply to him because by the time of the speech and petitioning at issue he already had been 

terminated and was, therefore, not a public employee. Additionally Heidt argues that even if the 

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First Amendment’s public employee framework does apply to him, his speech and petitioning

was protected under that doctrine.

1. Whether the First Amendment’s Public Employee Framework Applies

Regarding the issue of whether the First Amendment’s public employee framework 

applies to Heidt’s speech and petition clause claims, the case of Borough of Duryea v. Guarnieri, 

564 U.S. 379 (2011), is instructive. In that case, the plaintiff police chief sued his employer, the

municipality, under 42 U.S.C. § 1983 for First Amendment violations when the speech and 

petitioning at issue occurred during union grievance arbitration proceedings after the plaintiff’s 

employment had been terminated. Id. at 383-84. Despite the plaintiff’s status as a terminated 

employee, the Supreme Court treated the plaintiff as a public employee for purposes of his 

§ 1983 First Amendment claim and applied the First Amendment’s public employee framework 

to his claim. Id. at 386. The Court also noted that subjecting speech clause and petition clause 

claims to the same public employee framework is “justified by the extensive common ground in 

the definition and delineation of [those] rights.” Id. at 389. 

Plaintiff offers no case law or other authority holding that First Amendment retaliation 

claims based on speech or petitioning after a public employee has been terminated, but while the 

employee is engaged in the public employment grievance process, should not be subject to the 

public employee framework. Accordingly, the Court will apply the First Amendment’s public 

employee framework to Heidt’s speech and petition clause claims. See also Milardo v. Town of 

Westbrook, 120 F. Supp. 3d 206, 217 (D. Conn. 2015) (applying the public employee test for 

allegedly protected speech and petition activity occurring years after the plaintiff was terminated, 

including activity during grievance and arbitration proceedings and speech made after winning 

the arbitration proceeding, while not yet reinstated as a public employee).

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PAGE 8 – OPINION AND ORDER

2. Heidt’s Alleged Protected Speech

The First Amendment is “not a right to transform everyday employment disputes into 

matters for constitutional litigation in the federal courts.” Guarnieri, 564 U.S. at 399. The Ninth 

Circuit follows a five-step process to determine whether an employer impermissibly retaliated 

against an employee for protected speech: 

(1) whether the plaintiff spoke on a matter of public concern; 

(2) whether the plaintiff spoke as a private citizen or public 

employee; (3) whether the plaintiff’s protected speech was a 

substantial or motivating factor in the adverse employment action; 

(4) whether the state had an adequate justification for treating the 

employee differently from other members of the general public; 

and (5) whether the state would have taken the adverse 

employment action even absent the protected speech.

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc) (quoting Eng v. Cooley, 552 

F.3d 1062, 1070 (9th Cir. 2009)). “Notably, ‘because these are sequential steps,’ a plaintiff’s 

failure to satisfy a single one ‘necessarily concludes [a court’s] inquiry.’” Johnson v. Poway 

Unified Sch. Dist., 658 F.3d 954, 961-62 (9th Cir. 2011) (quoting Huppert v. City of 

Pittsburg, 574 F.3d 696, 703 (9th Cir. 2009)).

a. Public concern

Heidt does not specifically identify any particular speech made during his arbitration 

proceeding that he alleges involved issues of public concern. At oral argument, Heidt argued that 

at the pleading stage he need not identify the specific speech involved. The Court disagrees. The 

Court must decide as a matter of law whether the employee’s speech involved a matter of public 

concern. Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). In performing this task, the Court 

looks “to what the employees actually said, not what they say they said after the fact.” 

Desrochers v. City of San Bernardino, 572 F.3d 703, 711 (9th Cir. 2009). Additionally, 

determining whether speech was a matter of public concern is properly decided on a motion to 

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PAGE 9 – OPINION AND ORDER

dismiss. See Turner v. City and Cty. of San Francisco, 788 F.3d 1206, 1212 (9th Cir. 2015);

Gibson v. Office of Attorney Gen.,California, 561 F.3d 920, 925 (9th Cir. 2009); Harris v. 

Harris, 2012 WL 5187764, at *6 (E.D. Cal Oct. 17, 2012). Without knowing what Heidt

allegedly said, the Court cannot determine whether what Heidt said was a matter of public 

concern. Cf. Kardell v. Lane Cty., 2014 WL 4384607, at *2 (D. Or. Sept. 3, 2014) (noting that 

“any unlawful retaliation must stem from something [the plaintiff] actually said or did”).

Instead of identifying any particular speech that he made, Heidt alleges that at arbitration 

“several witnesses” testified and that “[w]itness testimony covered a wide range of topics.” SAC 

¶ 4.21. Heidt alleges that these topics included: (1) Heidt’s purportedly improper use of force; (2) 

the MPD’s concerns regarding Heidt’s credibility; (3) the MPD’s ability to use Heidt when his 

credibility had been called into question; (4) the MPD’s reporting of credibility concerns

regarding Heidt to the City Attorney and District Attorney’s Office; (5) the District Attorney’s 

conclusion that there would need to be a Brady disclosure in every criminal prosecution in which 

Heidt might be a witness; (6) the City Attorney’s opinion that she could not call Heidt as a 

witness; (7) the requirements of disclosure under Brady; and (8) whether the MPD had just cause 

to terminate Heidt. Id. Heidt fails, however, to identify whether it was him or some other witness 

who testified to any given topic. This is insufficient to state a claim for First Amendment 

retaliation based on protected speech.

Further, “[w]hether an employee’s speech addresses a matter of public concern must be 

determined by the content, form, and context of a given statement.” Connick, 461 U.S. at 147-48. 

A court should consider the content of the speech “first and foremost.” Ulrich v. City and Cty. of 

San Francisco, 308 F.3d 968, 979 (9th Cir. 2002) (quoting Weeks v. Bayer, 246 F.3d 1231, 1234 

(9th Cir. 2001)).

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Speech involves a matter of public concern when it fairly can be said to relate to “any 

matter of political, social, or other concern to the community.” Connick, at 146. Notably, 

“[h]owever, ‘[a]n employee’s motivation [is] relevant to the public-concern inquiry.’” Turner, 

788 F.3d at 1210 (first alteration added, remaining alterations in original) (quoting Desrochers, 

572 F.3d at 715). The appropriate inquiry, therefore, is: “‘[W]hy did the employee speak (as best 

as we can tell)? Does the speech seek to bring to light actual or potential wrongdoing or breach 

of public trust, or is it animated instead by dissatisfaction with one’s employment situation?’” Id.

(alteration in original) (quoting Desrochers, 572 F.3d at 715). Speech that takes the form of 

“internal employee grievances which were not disseminated to the public . . . cuts against a 

finding of public concern.” Desrochers, 572 F.3d at 715.

Heidt argues that speech on the allegedly improper functioning of a police department in 

reviewing use of force and conducting its discipline is inherently a matter of public concern 

because police departments are public agencies. Although the Court agrees that as a general 

proposition the public is interested in whether a police chief has instigated unfounded 

investigations or pushed the District Attorney to make an unfounded Brady determination, the 

speech alleged by Heidt “was focused on and driven by his internal grievance” and is thus not 

considered speech on a matter of public concern for purposes of the alleged claim of public 

employee First Amendment retaliation. Turner, 788 F.3d at 1211. 

Turner is particularly instructive in evaluating Heidt’s alleged protected speech. In 

Turner, a public employee (Turner) spoke out in staff meetings, union meetings, and in face-toface meetings with city officials regarding the San Francisco’s practice of using temporary 

exempt employees, which Turner alleged violated civil service rules and was “in direct 

contravention of the City Charter.” Id. at 1209, 1211. The Ninth Circuit found that Turner’s 

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PAGE 11 – OPINION AND ORDER

complaints were “potentially significant in their implications” and “ostensibly could invoke a 

matter of public concern .” Id. at 1211. The court concluded, however, that because the speech 

“arose primarily out of concerns for [Turner’s] own professional advancement, and his 

dissatisfaction with his status as a temporary employee,” Turner’s speech was not protected. Id.

The Ninth Circuit also evaluated the “form and context” of Turner’s speech, considering 

the “public or private nature of the speech, and [] the speaker’s motive.” Id. The court concluded 

that the “form and context of [the] speech weighs strongly against finding that First Amendment 

protection is warranted.” Id. Critical to this conclusion was the fact that “Turner voiced his 

grievances internally—at union meetings, to his supervisor, and to Human Resources—and they 

were specifically related to the conditions of his employment.” Id. The court noted that Turner 

did not pursue a complaint with the any outside government agency or official, the press, or 

“otherwise attempt[] to air his concerns in a public forum.” Id. Thus, the court concluded that 

“Turner’s complaints clearly arose out of an ongoing personnel dispute.” Id. Finally, the court 

noted that “there is no indication that Turner sought broad-based union action or relief on behalf 

of other similarly situated employees. Such ‘individual personnel disputes and grievances’ are 

‘generally not of public concern.’” Id. at 1211-12 (quoting Desrochers, 572 F.3d at 710).

The speech alleged by Heidt is analogous to the complaints in Turner. The speech 

occurred during Heidt’s arbitration proceeding arising from his personal union grievance 

challenging his termination. It was not a public forum. Rather, the audience for Heidt’s speech 

consisted of individuals related to the union grievance arbitration, not the general public, press, 

or some other outside governmental agency. Additionally, the general topics that Heidt alleges 

were discussed involve decisions made by MPD and others relating specifically to Heidt and his 

employment conditions and status. Although Heidt’s complaints that the Police Chief and 

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PAGE 12 – OPINION AND ORDER

District Attorney had unfairly and incompetently investigated and disciplined him may be 

“potentially significant in their implications,” the grievance and arbitration proceeding in this 

case was motivated by Heidt’s dissatisfaction with the MPD’s decision to terminate him and was 

made in an effort to contest that termination. Id. at 1211.

Heidt also does not allege that in the arbitration he sought broad-based action or reform 

relating to how MPD or the Yamhill District Attorney’s office handled internal investigations or 

Brady determinations, or that Heidt sought relief on behalf of others. Heidt also does not allege 

facts showing that his speech sought to “bring to light actual or potential wrongdoing or breach 

of public trust” versus merely a challenge to his own employment situation. Id. at 1210. Instead, 

Heidt’s speech, like Turner’s, “arose primarily out of concerns for his own professional 

advancement” and dissatisfaction with his on-the-job treatment and termination. Id. at 1211. 

Such speech is not considered a matter of public concern. Id.; Handte v. Storey Cty., 461 F. 

App’x 591, 592 (9th Cir. 2011) (concluding that speech made by a deputy sheriff complaining 

that the internal investigation of his conduct was improper did not constitute speech on a matter 

of public concern because the complaints “were focused entirely on an internal investigation into 

[the plaintiff’s] own conduct, a matter at the core of what is properly considered an individual 

grievance and not a matter of public concern” and that the plaintiff’s criticism that the 

department instituted an improper firearms training policy, which “occurred during the internal 

affairs investigation into [the plaintiff’s] discharge of a firearm at the shooting range—was a 

mere extension of [the plaintiff’s] dispute with his superiors over a personnel matter and was not 

intended to call anyone’s attention to a matter of concern to the public”); cf. Thomas v. City of 

Beaverton, 379 F.3d 802, 808 (9th Cir. 2004) (“[T]he type of personnel matters that we have 

deemed unprotected under the public concern test are employment grievances in which the 

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employee is complaining about her own job treatment, not personnel matters pertaining to 

others.” (emphasis in original)); Hyland v. Wonder, 972 F.2d 1129, 1138 (9th Cir. 1992) (finding 

that speech was a matter of public concern in part because the speech “did not concern [the 

plaintiff’s] dissatisfaction with his own position or on-the-job treatment”).

Heidt has not alleged facts showing that his speech relates to a matter of public concern. 

Because Heidt, however, has not identified the speech he made during the arbitration, the Court 

cannot conclude that an amendment would be futile. If Heidt’s speech at his arbitration involved 

more than complaints regarding his own personal treatment and discipline, such as if he

challenged more broadly incompetency or inefficiency in how department investigations or 

Brady determinations are conducted outside of his own personnel grievance, his speech might 

possibly be considered a matter of public concern. Thus, the Court will allow Heidt the 

opportunity further to amend his complaint. The Court notes, however, that because this will be 

Heidt’s fourth opportunity to identify his allegedly protected speech and allege facts sufficient to 

state a claim for First Amendment retaliation, the Court does not anticipate allowing any further 

amendments if Heidt’s next pleading remains insufficient.

b. Private citizen or public employee3

There is no bright line rule delineating when a person speaks as a private citizen versus as 

an employee. “Th[e] inquiry is a ‘practical one’ that seeks to determine whether the employee 

spoke pursuant to his or her official responsibilities.” Garcetti v. Ceballos, 547 U.S. 410, 421

 

3 At oral argument, Heidt asserted that because the City Defendants did not specifically 

argue this element of the public employee test, the Court should not analyze it. The Court 

disagrees. The City Defendants move that Heidt has failed to state a claim for First Amendment 

retaliation. The Court thus looks at all the elements required to state a First Amendment 

retaliation claim and analyzes whether Heidt sufficiently has alleged such a claim.

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(2006). If speech “owes its existence to a public employee’s professional responsibilities,” then 

restricting it does not infringe on the employee’s First Amendment rights. Id.

In Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013), the Ninth Circuit described three 

factors relevant to a determination of the scope of a plaintiff’s job duties. Id. at 1074-76. First, 

“particularly in a highly hierarchical employment setting such as law enforcement,” an 

appropriate factor is “whether or not the employee confined his communications to his chain of 

command.” Id. at 1074. “When a public employee communicates with individuals or entities 

outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” Id. For 

example, in Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), the Ninth Circuit held that a 

correctional officer’s communications with a state senator and the inspector general about inmate 

sexual misconduct were not made pursuant to her official duties and thus constituted speech 

protected by the First Amendment. Id. at 545-46.

Second, the subject matter of the communication may be considered. Dahlia, 735 F.3d

at 1074-75. Speech made pursuant to normal departmental procedure about a particular incident 

is typically done within one’s job duties. Id.at 1075. “By contrast, if a public employee raises 

within the department broad concerns about corruption or systemic abuse, it is unlikely that such 

complaints can reasonably be classified as being within the job duties of an average public 

employee.” Dahlia, 735 F.3d at 1075. Third, “when a public employee speaks in direct 

contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s 

professional duties.” Id. at 1075. 

Heidt argues that challenging his termination and the underlying conclusions by the MPD 

and District Attorney cannot, by definition, be within his “job duties.” The Court does not take 

such a narrow view on whether speech is made as an employee versus private citizen. Heidt’s 

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ability to file a grievance is part of his union employment contract. Thus, it is part of the contours 

of his job that he can file grievances and challenge adverse employment actions taken against 

him. The fact that his employer does not require him to do so on a regular basis is not dispositive 

of whether speech made during an employment grievance is made as a private citizen. The 

dispositive question is whether the speech “owes its existence” to official responsibilities. 

Garcetti, 547 U.S. at 421. In the case of an employment grievance challenging one’s own 

treatment, it does, because absent the status as a public employee, there would be no employment 

grievance. See Milardo, 120 F. Supp. 3d at 217 (concluding that speech made during an 

employment grievance owed its existence to the plaintiff’s official responsibilities because it was 

“made through employment-related channels, [was] not conveyed to the public, and [has] no 

relevant analogue to citizen speech”).

Heidt’s allegedly protected speech was made during an employment arbitration 

proceeding disputing his personal termination and with the purpose of having his job reinstated. 

Heidt does not allege that he made this protected speech outside of the MPD’s union grievance 

process, which the Court finds to be analogous to speech within the chain of command. Heidt

does not allege that he made any protected speech to the public or to other public officials 

outside of those within his chain of command who were involved in Heidt’s grievance. Heidt 

also does not allege that he made any speech expressing broad concerns regarding the MPD or 

the City or for purposes of obtaining general improvements to the MPD or City. To the contrary,

Heidt alleges that at his arbitration the topics discussed included the City Defendants’

conclusions regarding Heidt’s use of force and Heidt’s credibility and ability to perform his job 

duties. The concerns Heidt may have raised relating to the MPD’s investigation into Heidt’s 

alleged use of force and the use of the Brady list were raised in the context of disputing specific

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findings against him and trying to get his job back. Thus, Heidt’s speech made during his 

employment grievance “owes its existence” to his status as a public employee.4

Heidt argues that because his speech was made in an arbitration proceeding, it is similar 

to testimony given at trial and is thus protected speech, citing to cases in which testimony at trial 

has been found to be protected speech. Heidt does not allege, however, that his arbitration was a 

public proceeding, like a trial. Based on Heidt’s allegations, the only reasonable inference is that 

his arbitration was a private proceeding. Speech during Heidt’s arbitration thus is not analogous 

to testimony given in a public trial. Further, the cases relied on by Heidt involve a public 

employee’s testimony given on behalf of others. See Karl v. City of Mountlake Terrace, 678 F.3d 

1062 (9th Cir. 2012) (finding that deposition testimony provided in another person’s lawsuit 

alleging significant government misconduct was protected speech); Clairmont v. Sound Mental 

Health, 632 F.3d 1091 (9th Cir. 2011) (finding that a counselor’s testimony at her client’s 

revocation hearing that the client was terminated from a domestic violence program because of 

his Spanish-speaking status was protected speech). Heidt does not offer any authority for the 

proposition that testimony given in a private arbitration challenging one’s own on-the-job 

treatment constitutes speech as a private citizen and not a public employee.

3. Heidt’s Alleged Protected Petition

The Supreme Court has held that the same framework used to govern First Amendment 

speech retaliation claims by a public employee is to be used in considering First Amendment 

retaliation claims based on petitioning. Guarnieri, 564 U.S. at 398. The Supreme Court 

explained how a court should properly consider such claims:

 

4

This is not a situation where the speaker gained knowledge of the facts about which he 

or she spoke because of official job duties and then spoke outside of a personal employment 

grievance, bringing to light that information. See Karl v. City of Mountlake Terrace, 678 F.3d 

1062, 1071-72 (9th Cir. 2012) (finding that such speech was made as a private citizen).

Case 3:15-cv-00989-SI Document 79 Filed 11/29/16 Page 16 of 31
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As under the Speech Clause, whether an employee’s petition 

relates to a matter of public concern will depend on “the content, 

form, and context of [the petition], as revealed by the whole 

record.” Connick, 461 U.S., at 147-148, and n.7.The forum in 

which a petition is lodged will be relevant to the determination of 

whether the petition relates to a matter of public concern. A 

petition filed with an employer using an internal grievance 

procedure in many cases will not seek to communicate to the 

public or to advance a political or social point of view beyond the 

employment context.

Of course in one sense the public may always be interested in how 

government officers are performing their duties. But as the 

Connick and Pickering test has evolved, that will not always 

suffice to show a matter of public concern. A petition that 

“involves nothing more than a complaint about a change in the 

employee’s own duties” does not relate to a matter of public 

concern and accordingly “may give rise to discipline without 

imposing any special burden of justification on the government 

employer.” United States v. Treasury Employees, 513 U.S. 454, 

466 (1995). The right of a public employee under the Petition 

Clause is a right to participate as a citizen, through petitioning 

activity, in the democratic process. It is not a right to transform 

everyday employment disputes into matters for constitutional 

litigation in the federal courts.

Id. at 398-99 (citation omitted).

The Supreme Court cautioned that “[u]nrestrained application of the Petition Clause in 

the context of government employment would subject a wide range of government operations to 

invasive judicial superintendence” because public employees “may file grievances on a variety 

of employment matters, including working conditions, pay, discipline, promotions, leave, 

vacations, and terminations” and then every government response to a grievance could “present a 

potential federal constitutional issue.” Id. at 390-91. The Supreme Court expressed concern that 

judges and juries, when having to “determine whether the government’s actions were in fact 

retaliatory, would be required to give scrutiny to both the government’s response to the 

grievance and the government’s justification for its actions” and that “[t]his would occasion 

review of a host of collateral matters typically left to the discretion of public officials.” Id. 

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at 391. Such an application of the Petition Clause “would raise serious federalism and 

separation-of-powers concerns. It would also consume the time and attention of public officials, 

burden the exercise of legitimate authority, and blur the lines of accountability between officials 

and the public.” Id.

As discussed above, Heidt’s petition involved no more than a complaint about 

determinations relating to his job performance and his own public employment termination. It 

was also brought using the MPD’s internal grievance procedure and did not “seek to 

communicate to the public or to advance a political or social point of view beyond the 

employment context.” Id. at 398. Thus, it is not protected under the First Amendment. As with 

Heidt’s speech claim, if he can cure the deficiencies identified, he has leave to replead this claim.

B. Heidt’s Fourteenth Amendment Due Process Claims Against All Defendants

Heidt asserts both procedural and substantive due process claims against all Defendants

arising out of the Brady Determination and resultant change in Heidt’s job duties and 

opportunities to work overtime hours. “The Due Process Clause forbids the governmental 

deprivation of substantive rights without constitutionally adequate procedure.” Shanks v. 

Dressel, 540 F.3d 1082, 1090-01 (9th Cir. 2008). The Supreme Court has repeatedly recognized 

that “the Government has a much freer hand in dealing ‘with citizen employees than it does 

when it brings its sovereign power to bear on citizens at large.’” NASA v. Nelson, 562 U.S. 134, 

148 (2011) (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 598 (2008)). “This 

distinction is grounded on the ‘common-sense realization’ that if every ‘employment decision 

became a constitutional matter,’ the Government could not function.” Id. at 148-49 (quoting 

Connick, 461 U.S. at 143); see also Bishop v. Wood, 426 U.S. 341, 350 (1976) (“The Due 

Process Clause . . . is not a guarantee against incorrect or ill-advised personnel decisions.”).

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To prevail on a procedural due process claim, a plaintiff must establish: (1) a 

constitutionally protected liberty or property interest; (2) a deprivation of that interest by the 

government; and (3) the lack of adequate process. Shanks, 540 F.3d at 1090. “To establish a 

substantive due process claim, a plaintiff must, as a threshold matter, show a government 

deprivation of life, liberty, or property.” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th 

Cir. 1998). Thus, “[a] threshold requirement to a substantive or procedural due process claim is 

the plaintiff’s showing of a liberty or property interest protected by the Constitution.” 

Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). Because 

both procedural and substantive due process claims require the deprivation of a constitutionally 

protected property or liberty interest, the Court assesses first whether Heidt adequately has 

alleged such an interest.

1. Property Interest

Heidt alleges that Defendants have deprived him of a constitutionally protected property 

interest without due process of law. In the Court’s previous opinion dismissing Heidt’s original 

complaint, the Court noted that although Heidt has a property interest in his employment as a 

police officer, the union grievance and arbitration process relating to Heidt’s termination was 

adequate process as a matter of law. Thus, in Heidt’s SAC, he alleges that his Brady 

Determination resulted in the City Defendants restricting his duties and precluding him from 

working overtime and argues that he has a constitutionally protected property interest in his 

employment duties and hours.

An employee holds a protected property interest only if she or he has a reasonable 

expectation of entitlement to it. Stiesberg v. State of California, 80 F.3d 353, 356 (9th Cir. 1996); 

Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Public employees have a “property interest” 

in the terms and conditions of their employment if that interest is established “by existing rules 

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or understandings that stem from an independent source such as state law—rules or 

understandings that secure certain benefits and that support claims of entitlement to those 

benefits.” Board of Regents, 408 U.S. at 577; see also Ulrich, 308 F.3d at 975. A reasonable 

expectation of entitlement is derived from the wording of the independent source of law, and the 

“extent to which the entitlement is couched in mandatory terms.” Stiesberg, 80 F.3d at 356 

(quoting Wedges/Ledges, 24 F.3d at 62). When the independent source of law details procedural 

requirements, even those requirements do not automatically transform an employees’ “unilateral 

expectations into a protected property interest.” Wedges/Ledges, 24 F.3d at 62. Such an interest 

is only created if the “procedural requirements are intended to be a significant substantive 

restriction on . . . decision making.” T.T. v. Bellevue Sch. Dist., 376 F. App’x. 769, 771 (9th Cir. 

2010) (quoting Stiesberg, 80 F.3d at 356). 

Heidt alleges that he is entitled to continued employment with the MPD arising out of the 

MPD’s agreements with Heidt’s union, the MPA. Heidt, however, remains employed. What 

Heidt does not allege is that he is entitled to unchanged job duties, training, or access to overtime 

hours by virtue of his union contract or some other independent source of law. Generally, the 

right to a particular position or to receive overtime hours is not a constitutionally protected 

property interest. See, e.g., Stiesberg, 80 F.3d at 357 (holding that a failure to follow 

administrative procedure prior to transfer to a lateral position did not implicate a protected 

property interest); Jackson v. Cty. of Los Angeles, 46 F.3d 1142 (9th Cir. 1995) (dismissing due 

process claim as frivolous where the plaintiff “has not shown that the Constitution or any federal 

law gives him a right to work overtime or a right to carry a firearm at work”); Barnes v. City of 

Phoenix, 2009 WL 3425785, at *3 (D. Ariz. Oct. 22, 2009) (finding that absent allegations of an 

Arizona law creating a property interest in overtime and use of a state vehicle, “[s]uch losses do 

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not amount to a deprivation of one’s property interest under the Fourteenth Amendment”); Eberz 

v. Oregon Dep’t of State Police, 2008 WL 697419, at *5 (D. Or. Mar. 14, 2008) (denying due 

process claim because of the “absence of any authority indicating that plaintiff has a property 

interest in accumulated overtime”). 

Heidt alleges no independent authority that gives him a right to work overtime hours, 

receive training, or perform certain job duties. For example, Heidt does not allege that such 

rights are contained in his union contract. Nor does he allege any understanding between the 

MPD and the MPA regarding the procedures employed for changing an officer’s job duties or 

denial of overtime. Notably, Heidt also does not allege any facts showing that any contractual 

agreement or other understanding is intended to be a “significant substantive restriction” on the 

MPD’s decision making. Accordingly, Heidt has not sufficiently alleged that he has a protected 

property interest in his job duties as they were before the Brady Determination, training 

opportunities, or in any claimed right to receive overtime hours. Heidt thus fails to allege a 

constitutionally protected property interest. 

Heidt posited at oral argument that his union contract entitles him to overtime pay, 

training, and opportunities for advancement. Based on this representation, the Court cannot find 

that amendment would be futile. Heidt has leave to replead, if he can allege facts that show his 

union contract or some other independent source of law provides Heidt with a right to specific 

job duties, overtime, or opportunities for advancement, and that the union contract or other 

source of law is intended to be a significant substantive restriction on the MPD’s decision 

making. Because the Court has previously provided Heidt with an opportunity properly to allege 

a property interest and he has failed to do so, the Court anticipates this will be the final

opportunity to amend that the Court will allow on this claim. 

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2. Liberty Interest

Heidt also argues that his placement on the Brady list and the resultant change in his job 

duties deprive him of a constitutionally protected liberty interest. The Fourteenth Amendment’s 

protection against deprivation of liberty encompasses the right of persons to engage in any of the 

common occupations of life. Hyland, 972 F.2d at 1141. If, when terminating an employee, the 

government engages in conduct “that so severely stigmatize[s] the employee that she cannot 

avail herself of other employment opportunities, a claim for deprivation of liberty will stand.” Id.

(citation omitted). The stigma required must be “severe and genuinely debilitating” such that it 

essentially forecloses the employee’s freedom to take advantage of other employment 

opportunities. Id. The charges must amount to accusations of moral turpitude, such as immorality 

or dishonesty, to invoke constitutional protection. Id. at 1142. Accusations that an employee is 

incompetent, unable to get along with others, lacks judgment, or is generally untrustworthy fail 

to rise to a level that implicates a liberty interest. See Harrington v. City of Portland, 677 F. 

Supp. 1491, 1501 (D. Or. 1987). Additionally, the plaintiff must show that there has been public 

disclosure of the stigmatizing statement, the accuracy of which is contested, as well as the denial 

of some tangible interest such as employment, or the alteration of a status recognized by state 

law. Ulrich, 308 F.3d at 982 (“The rule . . . has come to be known as the ‘stigma plus’

test . . . .”).

The Court recognizes that placement on a “Brady list” involves a negative credibility 

finding and can have severe employment consequences. As explained in a recent article in the 

Stanford Law Review:

[T]he Brady-cop designation immediately puts a question mark on 

the officer’s ability to testify, and that question mark has severe 

employment consequences. An officer who cannot be counted on 

to testify also cannot be counted on to make arrests, investigate 

cases, or carry out any other police functions that might lead to the 

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witness stand. Brady cops may thus find themselves fast-tracked 

for termination and hard-pressed to find future work.

Considering the grave employment consequences, one might 

expect strong substantive and procedural protections to guard 

against mistakenly or unfairly placing an officer on the Brady list. 

But that is not the case. . . . [P]rosecutors can make Brady-cop 

designations based on flimsy evidence and without giving officers 

an opportunity to contest the allegations beforehand or to appeal 

the decisions afterward. Even if . . . the officer overturns the 

misconduct finding that landed him on the Brady list, the 

prosecutor can continue to label the officer as a Brady cop if he 

doubts the officer’s credibility. . . .

The sense of unfairness engendered by this process is only 

exacerbated by the potential for police management to misuse 

Brady in clashes with police labor. Not without justification, 

officers suspect prosecutors of using the Brady designation to aid 

police chiefs in punishing disfavored officers. 

Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the 

Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743, 780-82 (Apr. 2015) (footnotes 

omitted).

Heidt’s allegations, however, fail to articulate the deprivation of a constitutionally 

protected liberty interest in employment. Heidt does not allege that he was terminated—his 

current claim involves only a change in job duties and an inability to receive overtime hours or 

training. His current claim relates to the time period after he was reinstated. Heidt also does not 

allege that he has been “constructively discharged,” meaning that he quit because his working 

conditions were such that a reasonable person would feel he or she had no choice but to quit or 

retire. Knappenberger v. City of Phoenix, 566 F.3d 936, 940-41 (9th Cir. 2009). To the contrary, 

Heidt remains employed by the MPD. Heidt also has not alleged that he has attempted to transfer 

to another police agency and has been unable to do so because of his Brady Determination. 

Termination is a cornerstone of a constitutional claim for deprivation of the Fourteenth 

Amendment liberty interest in employment. See, e.g., Hyland, 972 F.2d at 1141 (the stigmatizing 

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PAGE 24 – OPINION AND ORDER

conduct must be “in the course of dismissing an employee”); Brady v. Gebbie, 859 F.2d 1543, 

1552 (9th Cir. 1988) (“In order to trigger the procedural protections of due process attendant to a 

properly presented liberty interest claim, a plaintiff must show that . . . the charge is made in 

connection with termination of employment.”) (quotations and citation omitted); cf. Boyd v. 

Edwards, 2015 WL 3407890, at *2-3 (D. Or. May 27, 2015) (dismissing substantive due process 

claim because the plaintiff was still employed and thus had no deprivation of a liberty or 

property interest (citing and quoting Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 997-98 (9th 

Cir. 2007))). Thus, although placement on a Brady list and its resulting consequences may in 

some circumstances be sufficiently egregious or stigmatizing to trigger a protected liberty 

interest, Heidt’s allegations do not demonstrate such circumstances in this case. Thus, Heidt has 

failed to allege that a protected liberty interest is implicated in this case. Because Heidt remains 

employed, the Court dismisses with prejudice Heidt’s claim that his liberty interest has been 

unconstitutionally deprived.

C. Municipal Liability of Defendant MPD

“[A] municipality is subject to suit under § 1983 only ‘if it is alleged to have caused a 

constitutional tort through a policy statement, ordinance, regulation, or decision officially 

adopted and promulgated by that body’s officers.’” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 

1096 (9th Cir. 2013) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)). Thus, 

for Heidt to sustain a claim of municipality liability, he must allege an underlying constitutional 

tort committed against him. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)

(concluding “that Congress did not intend municipalities to be held liable unless action pursuant 

to official municipal policy of some nature caused a constitutional tort”) (emphasis added); 

Glenn v. Washington Cty., 673 F.3d 864, 880 (9th Cir. 2011) (“‘Pursuant to 42 U.S.C. § 1983, a 

local government may be liable for constitutional torts committed by its officials according to 

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PAGE 25 – OPINION AND ORDER

municipal policy, practice, or custom.’” (emphasis added) (quoting Weiner v. San Diego 

Cty., 210 F.3d 1025, 1028 (9th Cir. 2000))).

As explained above, Heidt has not sufficiently alleged that Defendants’ actions have 

implicated and deprived Heidt of a constitutionally protected right. Thus, there is no underlying 

constitutional violation and no municipal liability of the MPD under Monell. 

D. Liability of Yamhill County

Defendant Yamhill County moves to dismiss Heidt’s Fourteenth Amendment claims 

against it on the grounds that Heidt has failed to allege any facts pertaining to Yamhill County, 

as opposed to the Yamhill County District Attorney. Additionally, Yamhill County argues that 

Heidt has failed to establish liability on the part of the County under Monell. As the Court has 

noted, Heidt has failed to establish that there has been any deprivation of a constitutional right. 

Because the violation of a constitutional right is a necessary condition to establish Monell 

liability, Heidt’s claim against Yamhill County fails. 

Even if Heidt were able to establish a violation of a constitutional right, in order to hold 

Yamhill County liable for Defendant Berry’s conduct as the Yamhill County District Attorney, 

Heidt must establish that Defendant Berry “(1) had final policymaking authority concerning the 

action . . . at issue and (2) was the policymaker for the local governing body for the purposes of 

the particular act.” Goldstein v. City of Long Beach, 715 F.3d 750, 753 (9th Cir. 2013) (quoting 

Weiner, 210 F.3d at 1028). Yamhill County “can be held liable only if the District Attorney acted 

as a county officer. If the District Attorney was a state officer when he engaged in the acts of 

which [the plaintiff] complains, . . . the County cannot be held liable for those acts.” Ceballos v. 

Garcetti, 361 F.3d 1168, 1182 (9th Cir. 2004), rev’d on other grounds, 547 U.S. 410 (2006). 

In order to determine whether Defendant Berry was acting on behalf of Yamhill County 

or the State of Oregon, the Court must look to Oregon law. See McMillian v. Monroe Cty., 520

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PAGE 26 – OPINION AND ORDER

U.S. 781, 785-86 (1997); see also Goldstein, 715 F.3d at 754 (noting that the inquiry is 

dependent on state law). Unlike the issue of prosecutorial immunity, which is a federal question 

that will have a consistent answer nationwide, the “state-local determination under 

Section 1983 . . . depends on a careful and thorough analysis of state constitutional and statutory 

provisions, and will vary ‘from region to region, and from State to State.’” Goldstein, 715 F.3d 

at 760 (quoting McMillian, 520 U.S. at 795); see also Jackson v. Barnes, 749 F.3d 755, 765 (9th 

Cir. 2014) (explaining that although state case law “is helpful to the extent that it aids in our 

understanding of various state constitutional and statutory provisions,” it “does not control our 

decision; rather, the ultimate decision we must make is one of federal law.”). 

Under Oregon law, a district attorney is a “member of the executive branch of state 

government despite the fact that he or she is technically employed by a county.” 49 Or. Op. Att’y 

Gen. 14 (1998). He or she performs “functions within the executive branch of state government.” 

Id. (emphasis in original). District attorneys and deputy district attorneys are sworn to “conduct 

prosecutions on behalf of the state, and are constitutionally designated as the law officers of the 

State who shall perform their law enforcement duties as the Legislative Assembly may direct.” 

Id. (quotation marks and citations omitted).

The Ninth Circuit and other federal district courts have most often characterized district 

attorneys in Oregon as state actors, not county actors. In Foster v. Flaherty, the Ninth Circuit 

affirmed dismissal of a suit brought by terminated deputy district attorneys against the 

County. 621 F. App’x 463, 463 (9th Cir. 2015). The court held, “[u]nder Oregon law, DAs are 

officers of the State of Oregon . . . we conclude that DDAs are State, not County employees” and 

that the county, therefore, could not be held liable for the deputy district attorneys’ terminations. 

Id. at 464 (citing State v. Coleman, 131 Or.App. 386, 390 (1994)). 

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In Davidson v. Deschutes Cty., the county defendant moved to dismiss a suit accusing the 

District Attorney’s office of employing discriminatory prosecutorial policies and customs. 2015 

WL 4464145, at *8 (D. Or. Jul. 21, 2015). Despite the plaintiff’s argument that the policies were 

only implemented within the county, the court held that Monell liability “cannot be attributed to 

[the] County for the actions of the District Attorney, a non-county policymaker.” Id. at *8; see 

also Cannon v. Polk Cty. Dist. Attorney, 501 F. App’x 611, 613 (9th Cir. 2012) (finding that the 

Polk County, Oregon, district attorney’s office was entitled to sovereign immunity because 

“DAs . . . act as state officials . . . when acting in their prosecutorial capacity” (quoting Del 

Campo v. Kennedy, 517 F.3d 1070, 1073 (9th Cir. 2008))); Thomas v. Oregon, 2012 WL 

1029139, at *2 (D. Or. Jan. 30, 2012), report and recommendation adopted, 2012 WL 1029426 

(D. Or. Mar. 26, 2012) (“Under Oregon law, district attorneys are legal officers of the state.” 

(citing to Oregon Constitution, Art. VII, § 17; Or. Rev. Stat. § 8.660; and state cases)); Kleinman 

v. Multnomah Cty., 2004 WL 2359959, at *5 (D. Or. Oct. 15, 2004) (concluding “that the 

Multnomah County District Attorney’s office is a state entity”).

In narrow circumstances involving administrative functions relating to county staff, 

however, district courts applying Oregon law have determined that a district attorney acts on 

behalf of the county. For example, in Sweet v. Oregon, the court discussed the dual state-county 

functions of the Deschutes County District Attorney and concluded that “when acting on behalf 

of a county, the DA’s role is primarily administrative. . . . The DA . . . determines how the

budget allocated by the county will be spent on office space, supplies, and additional 

personnel.” 2013 WL 5936386 at *4 (D. Or. Oct. 30, 2013).

Defendant Berry’s alleged acts underlying Heidt’s claims included releasing a “Brady 

admonition” to defense counsel before Heidt was terminated, holding an allegedly unfair name 

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clearing hearing after Heidt was reinstated, and making the allegedly improper Brady

Determination regarding Heidt, despite the arbitrator’s decision. Those acts were done on behalf 

of the State of Oregon, not Yamhill County, because they are acts relating to the District 

Attorney’s prosecutorial function and not county administrative functions. 

In analyzing the application of absolute prosecutorial immunity,5 which similarly requires 

that the prosecutor’s challenged actions be “judicial” as opposed to “administrative,” the Ninth 

Circuit has held that creation of a nonprosecution policy, a decision not to prosecute a particular 

police officer’s cases, and conveying a nonprosecution decision are all judicial functions. Botello 

v. Gammick, 413 F.3d 971, 977 (9th Cir. 2005); Roe v. City and Cty of San Francisco, 109 

F.3d 578, 584 (9th Cir. 1997). In Botello, the plaintiff alleged that two prosecutors tried to thwart 

his hiring and when that did not work the prosecutors “attempted to have him fired by 

announcing their refusal to prosecute any cases where [the plaintiff] participated in any phase of 

the investigative process.” 413 F.3d at 977. The Ninth Circuit noted that the fact that the 

prosecutors did not offer any explanation for their nonprosecution policy or their refusal to 

prosecute any of the plaintiff’s cases, even where there might be corroborating evidence “give[s]

us pause,” but found nonetheless that “their decision not to prosecute [the plaintiff’s] cases and 

their communication of that decision is intimately tied to the judicial process.” Id.; see also 

Roe, 109 F.3d at 584 (holding that the prosecutors’ determination that the plaintiff police officer 

was not a credible witness and that they would not prosecute his cases without corroborating 

evidence “falls entirely within a prosecutor’s judicial function regardless of whether one case or 

 

5 Because the determination of whether a district attorney was acting on behalf of a state 

or a county turns on whether the district attorney was performing prosecutorial or nonprosecutorial acts, in making such a determination a court “may look for guidance” to cases 

analyzing whether a district attorney was performing prosecutorial or administrative functions 

for purposes of absolute and qualified immunity. Ceballos, 361 F.3d at 1183.

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a line of cases is at issue” and regardless of “[w]hether their assessment is accurate or not”); Neri 

v. Cty. of Stanislaus Dist. Attorney’s Office, 2010 WL 3582575, at *6 (E.D. Cal. Sept. 9, 2010)

(finding the district attorney’s placement of the plaintiff police officer on a Brady list and 

disclosure of materials relating to the plaintiff to criminal defendants were prosecutorial, not 

administrative, acts because they stem from “the district attorney’s obligations as a prosecutor 

and require a prosecutor’s individual evaluation of evidence under Brady”); Nazir v. Cty. of Los 

Angeles, 2011 WL 819081, at *8 (C.D. Cal. Mar. 2, 2011) (finding that “the DA’s Office . . . was 

a state actor when creating a procedure to place police officers on ‘Brady Lists’”).

Defendant Berry’s allegedly improper acts are not materially different from those alleged 

in Botello. The Court follows the Ninth Circuit and other district courts in this circuit and finds 

that Defendant Berry’s actions were not administrative and were thus performed on behalf of the 

State of Oregon. Accordingly, the claims against Yamhill County are dismissed with prejudice.

E. Immunity of Defendant Berry

Defendant Berry argues that he is immune from Heidt’s claims. Defendant Berry argues

that the allegations against him in his personal capacity are subject to absolute prosecutorial 

immunity and qualified immunity. Defendant Berry also argues that the Court should extend the 

doctrine of judicial immunity to encompass Defendant Berry because he was acting in a “quasijudicial” capacity. These arguments are rejected.

1. Prosecutorial and Qualified Immunity

Heidt seeks only injunctive relief from Defendant Berry. Absolute prosecutorial 

immunity “only protects the defendants from section 1983 damage claims; it does not protect 

them from suits for injunctive relief.” Gobel v. Maricopa Cty., 867 F.2d 1201, 1203 n.6 (9th Cir. 

1989) (abrogated on other grounds by City of Canton, Ohio v. Harris, 489 U.S. 378 (1989); see 

also Supreme Court of Virginia. v. Consumers Union of the United States, 446 U.S. 719, 736-37 

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(1980) (noting in dictum that prosecutorial immunity does not shield prosecutors from suits for 

injunctive or declaratory relief); Gonzalez v. Governor of Washington, 2012 WL 2904235, at *3 

(W.D. Wash. June 8, 2012), report and recommendation adopted, 2012 WL 2903328 (W.D. 

Wash. July 16, 2012), aff’d, 520 F. App’x 552 (9th Cir. 2013) (rejecting argument by state court 

judges and prosecutor that absolute immunity applied because judicial and prosecutorial 

immunity does “not prevent a claim for injunctive relief”). Similarly, qualified immunity also 

does not protect a defendant from suits seeking injunctive relief. Vance v. Barrett, 345 

F.3d 1083, 1091 n.10 (9th Cir. 2003) (noting that “a defense of qualified immunity is not 

available for prospective injunctive relief”); Presbyterian Church (U.S.A.) v. United States, 870 

F.2d 518, 527 (9th Cir. 1989) (“Qualified immunity is an affirmative defense to damage liability; 

it does not bar actions for declaratory or injunctive relief.”). Thus, Defendant Berry is not 

entitled to prosecutorial or qualified immunity with respect to Heidt’s claims seeking only 

injunctive relief.

2. Judicial Immunity

The Court declines to extend the doctrine of judicial immunity to a district attorney’s 

decision to place a police officer on a Brady list. Prosecutorial immunity is the appropriate 

doctrine to apply when prosecutors argue that their conduct was “quasi-judicial.” E.g., Broam v. 

Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) (“[I]n deciding whether to accord a prosecutor 

immunity from a civil suit for damages, a court must first determine whether a prosecutor has 

performed a quasi-judicial function. If the action was part of the judicial process, the prosecutor 

is entitled to the protection of absolute immunity whether or not he or she violated the civil 

plaintiff’s constitutional rights.” (citation and internal quotation marks omitted)); Ashelman v. 

Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (“Prosecutorial immunity has developed along much 

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PAGE 31 – OPINION AND ORDER

the same lines as judicial immunity. Immunity extends to protect a prosecutor who acts within 

his or her authority and in a quasi-judicial capacity.”).

F. Additional Arguments

Because the Court has found that Heidt has not sufficiently alleged a constitutional 

violation, the Court does not reach Defendants’ remaining arguments, including: (1) qualified 

immunity for Defendants Noble and Scales; (2) whether the City Defendants can be held liable 

for the Brady Determination; and (3) whether Defendant Berry can be held liable for the changes 

to Heidt’s job duties and opportunity to work overtime.

CONCLUSION

The City Defendants’ Motion to Dismiss (ECF 53), Yamhill County’s Motion to Dismiss 

(ECF 63), and Defendant Berry’s Motion to Dismiss (ECF 68) are all GRANTED. Heidt’s 

Second Amended Complaint is DISMISSED. Heidt’s claims against Yamhill County and due 

process claims based on an alleged deprivation of a liberty interest in employment are 

DISMISSED WITH PREJUDICE. Heidt’s remaining claims are DISMISSED WITHOUT 

PREJUDICE and with leave to replead within 14 days from the date of this Opinion and Order, if 

Heidt can cure the deficiencies identified in this Opinion and Order.

IT IS SO ORDERED.

DATED this 29th day of November, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:15-cv-00989-SI Document 79 Filed 11/29/16 Page 31 of 31