IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

TROY A. LUKENS, 

Plaintiff, 

v. 

LARA MAUL, OFFICER KEMPLE, 

CHARLIE HALES, THE PORTLAND 

POLICE BUREAU, ROD UNDERHILL, 

DAN STATON, MULTNOMAH COUNTY 

SHERIFF'S OFFICE, COUNSELOR 

KRASNER, CHRISTIAN DAY, JAMIEL 

BROWN, MULTNOMAH COUNTY 

CORRECTIONS, and RONALD FISHBACK, 

Defendants. 

Troy Lukens 

2259 NW 5th St. 

Gresham, OR 97030 

Plaintiff Pro Se 

David N. Blankfeld 

Multnomah County Attorney's Office 

501 SE Hawthorne Boulevard, Suite 500 

Portland, OR 97214 

Attorney for Defendant Brown 

FINDINGS AND RECOMMENDATION - 1 

) Civil No.: 3:15-cv-00512-JE 

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) FINDINGS AND 

) RECOMMENDATION 

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Case 3:15-cv-00512-JE Document 25 Filed 04/06/16 Page 1 of 5
JELDERKS, Magistrate Judge: 

Plaintiff Lukens brings this civil rights action pursuant to 42U.S.C. §1983. On April 27, 

2015, the Court dismissed Plaintiffs action with the exception of his First Amendment 

retaliation claim against Defendant Jamie! Brown. The Court allowed Plaintiff 30 days in which 

to amend his Complaint. Plaintiff filed his Amended Complaint on May 29, 2015. By Order 

dated, June 8, 2015, the Comt dismissed all claims and defendants in Plaintiffs Amended 

Complaint with the exception of the single claim against Defendant Brown. 

Defendant Brown then moved for smnmary judgment. The Clerk of Court mailed Plaintiff 

a Summary Judgment Advice Notice and Scheduling Order setting a Response deadline for February 

1, 2016. [Docket# 22] Plaintiff has not filed a Response. Defendant's motion is now before the 

Court and, for the reasons set forth below, the motion should be granted. 

Evaluating Motions for Summarv Judgment 

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue 

exists regarding any material fact and the moving party is entitled to judgment as a matter of law. 

The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 

U.S. 317, 325 (1986). The moving party may discharge this burden by showing that there is an 

absence of evidence to support the nonmoving party's case. Id. When the moving party shows the 

absence of an issue of material fact, the nonmoving party must go beyond the pleadings and show 

that there is a genuine issue for trial. Id. at 324. 

The substantive law governing a claim or defense determines whether a fact is material. 

T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (91

h Cir. 1987). 

Reasonable doubts concerning the existence of a factual issue should be resolved against the moving 

party. Id. at 630-31. The evidence of the nonmoving party is to be believed, and all justifiable 

inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 

FINDINGS AND RECOMMENDATION - 2 

Case 3:15-cv-00512-JE Document 25 Filed 04/06/16 Page 2 of 5
U.S. 242, 255 (1985). No genuine issue for trial exists, however, where the record as a whole could 

not lead the trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986). 

Discussion 

Defendant Brown is Plaintiffs former probation officer. In his Amended Complaint, 

Plaintiff contends that his Google email account was "hacked" and email was taken from it. Plaintiff 

alleges this was done in an attempt to frame him and make it appear he had absconded when he had 

not so that Defendants could move to dismiss two civil rights cases Plaintiff had pending in federal 

court. 1 He further alleges that when he filed an "internet crimes complaint" against Brown, Brown 

called the Oregon State Police with instructions to arrest Plaintiff. Plaintiff alleges that Brown's 

actions were in retaliation for lodging the complaint and/or were to stop Plaintiff from accessing the 

courts, "and interfere and oppress plaintiff for litigating in court as a prose plaintiff." Am. Comp!. 

1f33. 

Brown argues that Plaintiff fails to plead or argue the necessary elements of a First 

Amendment retaliation claim and fails to satisfy the heightened pleading standard for such a claim. 

Brown's arguments are well taken. 

To succeed on a claim for First Amendment retaliation, a plaintiff must show that his speech 

was protected by the First Amendment, that the defendant's actions would chill an ordinary person 

from continuing in that activity, and that the defendant would not have taken the retaliatory action 

"but for" the protected conduct of the plaintiff. Hartman v. Moore. 547 U.S. 250, 260, 126 S.Ct. 1695 

(2006) (citations omitted). Mendocino Envtl Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th 

Cir.1999). 

1 The cases Plaintiff refers to in his Amended Complaint are Case No. 3: I 4-cv-00720-TC, a Petition for Writ of 

Habeas Corpus and Case No. 3:14-cv-00959-TC, which named numerous defendants, none of which was Jamie! 

Brown. Both cases were dismissed. 

FINDINGS AND RECOMMENDATION - 3 

Case 3:15-cv-00512-JE Document 25 Filed 04/06/16 Page 3 of 5
Here, there is no evidence in the record that Brown had or expressed a desire to "chill" 

Plaintiff's speech or that there was a substantial causal relationship between Plaintiff's allegedly 

constitutionally protected speech and Brown's actions. In his deposition testimony, Plaintiff stated 

he "cannot say" whether Brown hacked his email account. Blankfeld Deel. Ex. 1, 4:23-25. During 

his deposition, Plaintiff also conceded that there was a legitimate reason for his arrest by the Oregon 

State police, unrelated to the allegedly hacked emails. He testified at his deposition that at the time of 

his arrest he was served with an arrest warrant for failure to register as a sex offender. Blankfeld 

Deel. Ex. l, 5:19-6:2. Plaintiff's deposition testimony also reflects that he was largely motivated to 

pursue this action based on his beliefthat he might be killed otherwise; that he is engaged in "a war 

between heaven and hell" involving demons and time-travelling "gatekeepers" within the 

government; and that Defendant Brown "just happened to be one of the players in it." Blankfeld 

Deel. Ex. 1, 9:15-10:4; 13:19-22; 12:11-19. 

In sum, the record contains no evidence from which a rational juror could conclude that 

Defendant Brown intended to retaliate against Plaintiff for engaging in protected speech. 

Accordingly, Defendant's motion should be granted and this action should be dismissed with 

prejudice. 

Conclusion 

For the reasons set out above, Defendant's Motion for Summary Judgment (#20) should be 

GRANTED and a Judgment should be entered dismissing this action with prejudice. 

Scheduling Order 

This Findings and Recommendation will be referred to a district judge. Objections, 

if any, are due April 25, 2016. Ifno objections are filed, then the Findings and Recommendation 

will go under advisement on that date. 

FINDINGS AND RECOMMENDATION - 4 

Case 3:15-cv-00512-JE Document 25 Filed 04/06/16 Page 4 of 5
If objections are filed, then a response is due within 14 days after being served with 

a copy of the objections. When the response is due or filed, whichever date is earlier, the 

Findings and Recommendation will go under advisement. 

DATED this 6th day of April, 2016. 

Isl John Jelderks 

John J elderks 

U.S. Magistrate Judge 

FINDINGS AND RECOMMENDATION - 5 

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