IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

CHRISTOPHER HARTMAN, 

Plaintiff, 

v. 

MATTHEW P. BRADY, RANDY BONDS, 

M. MCDOUGAL, TROY GAINER, 

CHRISTOPHER COWEN, RACHEL COX, 

CITY OF VERNONIA, CITY OF SCAPPOOSE, 

COLUMBIA CITY, COLUMBIA COUNTY, 

AND WASHING TON COUNTY, 

Defendants. 

ACOSTA, Magistrate Judge: 

Civ. No. 3:15-cv-1753-AC 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Christopher Hartman ("plaintiff') brings this pro se civil rights lawsuit arising 

from his arrest on September 18, 2013. (ECF No. 2.) Defendants move to dismiss plaintiffs 

lawsuit for failure to state a claim (ECF No. 44) and for judicial notice (ECF No. 46). For the 

reasons discussed below, defendants' motion for judicial notice is GRANTED, defendants' 

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motion to dismiss should be GRANTED, and plaintiff should be given leave to amend the 

complaint as explained below. 1 

Background 

For the purposes of a motion to dismiss, the court construes all factual allegations within 

the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At all relevant times, 

defendant Matthew Brady ("Brady") was a police officer employed by defendant City of 

Vernonia ("Vernonia"). (ECF No. 2, p. 2.) Randy Bonds ("Bonds") was a Sheriffs Deputy for 

Columbia City. Id. M. McDougal ("McDougal") was an officer with the Oregon State Police. 

Id. Troy Gainer ("Gainer") was a police officer for the City of Scappoose ("Scappoose"). (ECF 

No. 2, p. 2-3.) Christopher Cowen ("Cowen") was a police officer for Columbia City, and 

Rachel Cox ("Cox") was a Sheriffs Deputy for Columbia County. (ECF No. 2, p. 3.) Plaintiff 

was seized by defendant Brady during an arrest on September 18, 2013. Id. Defendants Bonds, 

Brady, Gainer, and Cowen sought to take plaintiff into custody, and deployed a T ASER upon 

plaintiff while attempting to do so. (ECF No. 2, p. 4.) 

Plaintiff filed this lawsuit on September 16, 2015, alleging claims for Fourth Amendment 

violations based on excessive force and unreasonable seizure; disability discrimination under the 

Americans with Disabilities Act (the "ADA"), the Rehabilitation Act, and 0.R.S. 659A.142; and 

common law claims of battery and negligence. (ECF No. 2, pp. 4-7.) Defendants filed this 

motion to dismiss on March 4, 2016, arguing that plaintiffs complaint is barred by Heck v. 

Humphrey and has failed to allege facts to state a claim. (ECF No. 44.) Defendants also filed a 

request for judicial notice (ECF No. 46) of the Columbia County District Attorney's information 

charging plaintiff with resisting arrest on September 18, 2013 (the "Information"), and the 

1 Defendants requested oral .argument on their motion. The comi finds this motion 

appropriate for disposition without oral argument, pursuant to Local Rule 7-1 ( d)(l ). 

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Columbia County Circuit Court's Judgment of plaintiff's subsequent conviction for resisting 

anest (the "Judgment"). (ECF Nos. 45-1, 45-2.)2 

Legal Standards 

L_ The Court's Review of Pro Se Filings. 

A cowt must liberally construe the filings of a pro se plaintiff and afford the plaintiff the 

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). When 

dismissing the complaint of a pro se litigant, the litigant "must be given leave to amend his or her 

complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured 

by amendment."' Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) 

(quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by 

statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en bane)). 

II. Motion to Dismiss. 

Under Fed. R. Civ. Pro. ("Rule") 12(b)(6), a district cowt must dismiss a complaint if it 

fails to state a claim upon which relief can be granted. To survive dismissal, "a complaint must 

contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on 

its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the 

cowt to draw the reasonable inference that the defendant is liable for the misconduct alleged." 

Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

To survive a motion to dismiss under Rule 12(b)(6), plaintiffs must allege sufficient facts to 

"raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. That is, plaintiffs 

must show that there are claims not merely conceivable, but plausible. Id. at 570; Ashcroft, 556 

U.S. at 679. While a cowt must accept as true all factual allegations contained in the complaint, 

2 Plaintiff filed no response to defendants' motion to dismiss. 

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the same principle does not apply to legal conclusions. Iqbal, 556 U.S. at 678. Mere recitals of 

the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. 

Discussion 

L_ Judicial Notice of Facts. 

As a preliminary matter, defendants request that this court take judicial notice of the 

Columbia County District Attorney's Information charging plaintiff with the crime of resisting 

arrest on September 18, 2013, and the Judgment of plaintiffs conviction for resisting anest, 

State of Oregon v. Christopher Charles Hartman, Columbia County Circuit Court No. 

13CR07567, indicating plaintiff pleaded "no contest" on May 19, 2014, to the charge of resisting 

anest. (ECF Nos. 45-1, 45-2.) Federal Rule of Evidence ("FRE") Rule 201(b) provides that 

"[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is 

generally known within the trial court's territorial jurisdiction; or (2) can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned." FRE 

201(b). The court may take judicial notice at any stage of the proceeding. Id., at (d). 

The court has reviewed the Information and Judgment, and finds that the accuracy of 

these sources cannot reasonably be questioned. Fmther, the court can accurately and readily 

determine the information contained in the Information and Judgment. Thus, the comt grants 

defendants' request (ECF No. 46) for judicial notice of facts. 

II. Qualified Immunity. 

Qualified immunity shields a public servant from suit when he makes a decision that, 

even if constitutionally deficient, reasonably misapprehends the law governing the circumstances 

he confronted. Westwood v. City of Hermiston, 787 F. Supp. 2d 1174, 1207 (D. Or. 2011), ajf'd, 

496 F. App'x 728 (9th Cir. 2012); see also Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th 

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Case 3:15-cv-01753-AC Document 72 Filed 09/19/16 Page 4 of 12
Cir. 1997) (test allows ample room for reasonable error on the part of the government official). 

When police officers are sued for their conduct in the line of duty, comis must balance two 

competing needs: (1) the need to hold public officials accountable when they exercise power 

irresponsibly; and (2) the need to shield officials from harassment, distraction, and liability when 

they perform their duties reasonably. Johnson v. Bay Area Rapid Transit District, 724 F.3d 

1159, 1168 (9th Cir. 2013). To avoid qualified immunity, a complaint must: (!)state a claim for 

civil rights violations; and (2) establish that the constitutional right violated was so clearly 

established that it would have been clear to a reasonable person that the conduct he complains of 

was unlawful. Iqbal, 556 U.S. at 676 (plaintiff must plead a violation of his constitutional 

rights); Sweaney v. Ada County, Idaho, 119 F.3d 1385 (9th Cir. 1997) (plaintiff initially bears the 

burden of showing the violation of a clearly established federal right). 

Plaintiff has not met either criterion in his pleadings. While plaintiff clearly has alleged 

civil rights violations, he also bears the burden of showing that the right at issue was clearly 

established. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). A government official's 

conduct violates clearly established law when, at the time of the challenged conduct, the contours 

of a right are sufficiently clear that every reasonable official would have understood that what he 

is doing violates that right. Ashcroft v. al-Kidd, 563 U.S. 731, 739-40 (2011). Here, there are no 

allegations in the Complaint that defendants knew or were on notice that their conduct violated 

clearly established Fourth Amendment rights. (See ECF No. 2.) While plaintiff alleges that 

defendants caused him injury by deploying a TASER, he makes no allegations from which it can 

be plausibly inferred that defendants' use of force was unreasonable under the circumstances. Id. 

Similarly, while plaintiff alleges that he was arrested and therefore seized by Brady, there is no 

allegation from which it can be plausibly inferred that Brady's seizure of plaintiff was 

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unreasonable. See id. Accordingly, Brady, Bonds, Gainer, and Cowen are entitled to qualified 

immunity and plaintiffs Fourth Amendment claims against them should be dismissed. 

Ill. Heck Doctrine. 

Defendants also argue that plaintiffs§ 1983 claims of excessive force and unreasonable 

seizure are bmTed by the doctrine miiculated in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 

Under Heck, if a judgment in favor of a plaintiff in a civil rights action necessarily implicates the 

validity of his conviction or sentence, the complaint must be dismissed unless the plaintiff can 

demonsh·ate that the underlying conviction or sentence has been invalidated. Heck, 512 U.S. at 

486-87. 

Here, plaintiff was charged with and convicted for resisting arrest. (ECF Nos. 45-2, 46.) 

In Oregon law, if a peace officer uses excessive force in making an arrest, the arrestee has the 

right to use physical force in self-defense against excessive force being used by officer. An 

atrnstee that uses physical force in self-defense against excessive force is not "resisting arrest," 

but instead is defending against excessive force used by officer. State of Oregon v. Wright, 310 

Or. 430, 435 (1990). Thus, defendants argue, plaintiffs § 1983 claims, if successful, would 

nullify his conviction for resisting affest. They allege, further, that O.R.S. 162.315 implies that 

the arresting officer must be acting lawfully to substantiate a charge and conviction for resisting 

affest, and plaintiffs allegation that defendants violated his constitutional rights while making 

his affest therefore implicates the validity of his conviction and is barred by the Heck doctrine.3 

Id. 

\\\\\ 

3 Plaintiff does not allege that his conviction or sentence has been reversed on direct 

appeal, expunged by executive order, or otherwise declared invalid by a state tribunal or called 

into question by a federal comi's issuance of a writ of habeas corpus. (ECF No. 2, ~~ 1-48.) 

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The court disagrees. It is not clear from the pleadings when, how, or why defendants 

deployed a TASER on plaintiff. If, for example, defendants deployed a TASER after 

effectuating plaintiffs anest, a successful claim for unlawful use of force and umeasonable 

seizure would not implicate the validity of plaintiffs conviction. Without more factual detail, 

plaintiffs § 1983 claims, as pleaded, are not barred by the Heck doctrine. 

IV. Failure to Allege Facts. 

In addition to claims of excessive force and umeasonable seizure, plaintiffs complaint 

alleges discrimination, battery, and negligence. (ECF No. 2, pp. 5-7.) Defendants argue plaintiff 

fails to allege sufficient facts to state a claim under any theory of relief set forth in his complaint. 

As the Supreme Court articulated in Twombly, recitation of mere labels, conclusions, and 

elements is insufficient to state a claim for relief. 550 U.S. at 555. These allegations do not 

meet the standard for adequate pleadings set forth in Rule 12(b)(6). 

A. §1983 Claims of Excessive Force and Unreasonable Seizure. 

Plaintiffs first and second claims allege defendants violated his constitutional rights by 

unreasonable seizure and excessive use of force. (ECF No. 2, pp. 4-5.) To state a claim under 

§1983, plaintiff must allege (1) that a right secured by the Constitution or laws of the United 

States was violated; and (2) that the alleged violation was committed by a person acting under 

color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Although plaintiff alleges that 

defendants Brady, Bonds, Gainer, and Cowen were acting under color of state law the alleged 

violations occuned, none of plaintiffs claims allege that defendants violated any of plaintiffs 

constitutional rights. Specifically, while plaintiff alleges that defendants Brady, Cowen, and 

Gainer used "excessive force," his claim of excessive force does not allege specific facts as to 

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how any defendant used excessive force. Although plaintiff alleges Bonds deployed a T ASER 

on plaintiff, this allegation alone does not state a claim for excessive use of force. 

Similarly, plaintiffs claim of unreasonable seizure does not allege specific facts as to the 

manner he was seized by Brady except for the conclusory statement that he was seized without 

reasonable suspicion or probable cause. (ECF No. 2, ~ 25.) The court is not required to accept 

these conclusory allegations as true. Iqbal, 556 U.S. at 678. On this record, plaintiff has failed 

to state a claim for unreasonable seizure. 

B. Discrimination Based on Disability. 

Plaintiffs third claim for relief alleges that defendants Vernonia, Scappoose, Columbia 

City, and Columbia County discriminated against him in violation of the ADA, the 

Rehabilitation Act, and O.R.S. §659A.142 because they failed to accommodate his disability; 

failed to evaluate their policies and practices that do not comply with federal anti-discrimination 

statutes; failed to provide reasonable modification to accommodate individuals with mental or 

psychological disabilities; and discriminated against plaintiff based on his disability. (ECF No. 

2, ~~ 31-34.) 

To establish a violation of Title II of the ADA, plaintiff must show that: (1) he is an 

individual with a disability within the meaning of the Act; (2) he was excluded from 

participation in or otherwise discriminated against with regard to a public entity's services, 

programs, or activities; and (3) such exclusion or discrimination was by reason of his disability. 

Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). To recover monetary damages under 

the ADA or section 504 of the Rehabilitation Act, a plaintiff must prove intentional 

discrimination by the defendant. Duvall, 260 F.3d at 1138. Under ORS §659A.142, 

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discrimination against disabled persons by an employment agency, a labor organization, a place 

of public accommodation, or state governments is baiTed. 

Here, the complaint is devoid of the specific factual allegations necessary to state a claim 

for disability discrimination under the ADA or the Rehabilitation Act. (ECF No. 2, pp. 5-6.) 

Plaintiff does not allege that he was excluded from participation in or otherwise discriminated 

against with regard to a public entity's services, progrmns or activities. Id. Aside from 

conclusory allegations, he has not alleged facts showing that defendants intentionally 

discriminated against him because of his disability, has not alleged that he is a disabled person, 

and he has not explained how defendants discriminated against him because of his disability. 

Finally, plaintiff does not allege that Vernonia, Scappoose, Columbia City, and Columbia 

County employed him, are a labor organization, or a place of public accommodation or a state 

government. For all of these reasons, plaintiff has failed to state a claim of disability 

discrimination under O.R.S. §659A.142, the ADA, or the Rehabilitation Act. Plaintiffs third 

claim should be dismissed. 

C. Battery and Negligence Claims. 

Plaintiffs fourth and fifth claims for relief allege that defendants were negligent and 

committed battery against him. These claims are governed by the Oregon T011 Claims Act 

("OTCA"). As an initial matter, these claims fail to meet the notice requirements of the OTCA. 

The OTCA provides that "[ n ]o action arising from any act or omission of a public body or an 

officer, employee, or agent of a public body within the scope of 0.R.S. §30.260 to 30.300 shall 

be maintained unless notice of claim is given as required by this section." O.R.S. §30.275(1). 

For plaintiffs battery claim, the notice must be given "within 180 days after the alleged loss or 

injury." 0.R.S. §30.275(2). Here, plaintiff alleges he suffered claims resulting from his aiTest 

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on September 18, 2013. In order to satisfy the OTCA, plaintiff was required to provide tort 

claim notice within 180 days of September 18, 2013. Plaintiff alleges he provided tmt claim 

notice within 180 days to Vernonia and Columbia County, (ECF No. 2, ~ 4), but he does not 

allege he provide any tort claim notice to Scappoose and Columbia City. Because plaintiff 

apparently failed to comply with the OTCA regarding Scappoose and Columbia City, the 

common law claims against these defendants should be dismissed. 

Plaintiffs complaint alleges that Brady and Bonds' actions constituted battery. (ECF No. 

2, 38-39.) An officer's use of reasonable force under the circmnstances is a complete defense to 

a claim of battery. Gigler v. City of Klamath Falls, 21 Or. App. 753, 763 (1975); ORS §161.235 

(a police officer may use reasonable physical force to make an arrest). Further, in Oregon law, 

where excessive force is used, "the arrestee is not 'resisting atTest. "' Wright, 310 Or. at 435. 

Plaintiffs conviction for resisting arrest therefore implies that Brady and Bonds did not use 

excessive force in making the September 2013 arrest. Thus, plaintiffs battery claim should be 

dismissed with prejudice. 

Plaintiffs negligence claim alleges that Vernonia and Columbia County violated the 

standard of care required of law enforcement under the circumstances. (ECF No. 2, ~ 44). In 

Oregon, "intentional conduct does not support a claim for negligence under Oregon law." 

Woods v. Gutierrez, No. 3:11-CV-01082-BR, 2012 WL 6203170, at *12 (D. Or. Dec. 12, 2012) 

(citing Kasnick v. Cooke, 116 Or. App. 580, 842 P.2d 440 (1992)). Here, to the extent plaintiff 

alleges Vernonia and Columbia County m·e negligent (through its officers) for arresting plaintiff, 

his claim fails because plaintiff attempts to categorize an intentional tmt as negligent conduct 

and rests his negligence claim on the same factual allegations as his constitutional claim. 

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Case 3:15-cv-01753-AC Document 72 Filed 09/19/16 Page 10 of 12
Rodrigues v. Jackson County, No. 1:13-CV-01589-CL, 2015 WL 404577, at *4 (D. Or. Jan. 29, 

2015) (allegations of intentional conduct do not support a claim for negligence). 

In sum, the complaint before the court lacks sufficient factual allegations to state a claim 

for any specific violation of law. Accordingly, plaintiff fails to meet the requirements of Rule 

12(b)(6), and his complaint should be dismissed. 

V. Leave to Amend 

If the court dismisses a complaint, it must decide whether to grant leave to amend. See 

28 U.S.C. § 1653. The Ninth Circuit has repeatedly held that dismissal without leave to amend is 

improper, even if no request to amend the pleading was made, unless it is clear that the defective 

pleading cannot possibly be cured by the allegation of additional facts. Snell v. Cleveland, Inc., 

316 F.3d 822, 828 n.6 (9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th 

Cir. 2001)); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). Here, the comi finds that 

leave to amend is appropriate on all of plaintiffs claims. It is possible that plaintiff can cure the 

factual deficiencies in his § 1983 claims, and allege facts to avoid the Heck doctrine as well as 

qualified immunity. Further, because it is possible that plaintiffs discrimination claims can be 

cured by the allegation of additional facts, plaintiffs third claim should be dismissed without 

prejudice. Finally, it is possible that plaintiff can cure the factual deficiencies in his battery and 

negligence claims, and allege that he met OTCA' s notice requirements; therefore his foutih and 

fifth claims should be dismissed with leave to amend. 

Recommendation 

After careful consideration of plaintiffs complaint in light of the Rule l 2(b) standard, 

defendants' motions to dismiss (ECF No. 44) should be GRANTED and the complaint (ECF No. 

2) DISMISSED with leave to amend, as explained above. 

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This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Comi of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 

4(a)(l) should not be filed until entry of the district comi's judgment or appealable order. 

The Repmi and Recommendation will be referred to a district judge. Objections to this 

Report and Recommendation, if any, are due no later than fourteen (14) days from today's 

date. If objections are filed, any response is due fourteen (14) days from the date of the 

objections. See Rule 72, 6. Pmiies are advised that the failure to file objections within the 

specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 

1153 (9th Cir. 1991). 

DATED this H~ofSeptember, 2016. 

Page 12-FINDINGS AND RECOMMENDATION 

OHN V. ACOSTA 

tates Magistrate Judge 

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