UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JOSEPH LEONETTI, personally and

as Personal Representative of the Estate

of Holly Leonetti, deceased,

 Plaintiff,

v.

 

PATRICK BRAY; LISA SHIPLEY;

ANTHONY KOLLIAS; CLINT 

PIERCE, and CLACKAMAS 

COUNTY, a political subdivision of the 

State of Oregon,

 

Defendants.

Civ. No.: 3:16-CV-00014-AC

FINDINGS AND

RECOMMENDATION

________________________________

ACOSTA, Magistrate Judge:

Introduction

In 2013, Plaintiff Joseph Leonetti (“Leonetti”) was arrested and indicted on four counts of

first degree sexual abuse. The prosecution, at the behest of the alleged victim’s family, voluntarily

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dismissed the charges. Leonetti now brings this suit personally and on behalf of his deceased wife,

Holly Leonetti, against the investigators of his case: Clackamas County and Clackamas County

Sheriff’s Office (“CCSO”) employees AnthonyKollias, Clint Pierce, Patrick Bray, and Lisa Shipley

(collectively, “Defendants”). He alleges civil rights violations under 42 U.S.C. § 1983 and state law

claims of false arrest, malicious prosecution, and, on behalf of Holly Leonetti, loss of consortium. 

Presently before the Court is Defendants’ motion for summary judgment. For the reasons set forth

below, Defendants’ motion should be GRANTED. 

Background

On Friday, June 7, 2013, a Clackamas County patrol sergeant informed his friend and

colleague, Defendant Sergeant Anthony Kollias (“Kollias”), that the patrol sergeant’s 13-year-old

daughter, P.D., had disclosed to her mother that Leonetti, her then soccer coach, had inappropriately

touched her on multiple occasions. (Declaration of Jan K. Kitchel, (“Kitchel Decl.”) (ECF No. 34),

Ex. 1(ECF No. 34–1) at 139, 141;1 Declaration of Robert E. Franz, Jr., (“Franz Decl.”) (ECF 21),

Ex. 107 (“Kollias June 11 Report”) (ECF 21–7) at 3; Ex. 109 (“June 10 P.D. Interview”) (ECF 21–9)

at 6.) P.D.’s family and the Leonettis were friends at the time. (Kollias June 11 Report at 3.) P.D.

and her friend, V.D., had been discussing the touching within earshot of P.D.’s mother, when V.D.

suggested she should tell her mother. (Kollias June 10 Report at 3; Franz Decl., Ex. 108, (“Bray

June 10 Report”) (ECF No. 21–8) at 3.) P.D. agreed and told her mother that Leonetti “had been

reaching into her panties” when she spent the night at the Leonetti household during sleepovers with

1 The parties have provided supporting documentation including different excerpts of the

same depositions, and each has cited these materials differently. For purposes of this Findings and

Recommendation, the court cites the materials in the record according to their respective ECF

numbers and corresponding ECF pagination. 

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her friend, Leonetti’s daughter, C.D. (Kollias June 11 Report at 3.) 

I. June 10 P.D. Interview.

The following Monday, Kollias met with CCSO Detectives Lisa Shipley (“Shipley”) and

Patrick Bray(“Bray”) to discuss the case. (Id.) Kollias dispatched Shipley and Brayto P.D.’s school

to interview P.D. (Id.) P.D. struck the detectives as “easy to communicate with” and “very

forthcoming in what she knew and remembered.” (Bray June 10 Report at 2.) P.D. explained she

had spent the night at her friend C.D.’s house “a couple times” and that during the sleepovers, the

girls would watch movies on an L-shaped couch in the Leonetti family room. (P.D. June 10

Interview, at 8–9.) Leonetti would watch with them, then turn off the television once the girls fell

asleep. (Id. at 9.) P.D. said Leonetti’s wife, Holly, would typically be asleep by the time the girls

fell asleep, because she was “so sick” fighting cancer and “had a hard time walking.” (Id. at 20, 37.) 

P.D. told the detectives, “the first time, [Leonetti] tried touching me, and so I just kind of

rolled over and [] tried to snuggle up in the blanket, because I didn’t want to say anything, because

I didn’t know what to do.” (Id.) P.D. stated Leonetti started by touching her buttocks and would

“then kind of move forward” to her vaginal area. (Id. at 16.) This “happened about five times, and

the fifth time, the farthest he tried,” involved Leonetti reaching into P.D.’s underwear before she

“grabbed the sleeping bag, and just completely rolled up,” pretending still to be asleep. (Id. at 9.) 

When Bray asked P.D. how she slept on the couch, she thought she had been in a sleeping bag,

which Leonetti would “zip[] halfway down” to touch her, though elsewhere in the interview, she

referred to a “blanket.” (Id. at 9, 33.) P.D. said she had disclosed the abuse to only her mother and

two friends, V.D. and L.D. (Id. at 16–18, 29.) 

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P.D. had difficulty recalling exactly when these incidents had occurred, but she remembered

it was during the previous soccer season, “somewhere near the winter. In the fall,” when P.D. was

12 years old. (Id. at 14.) She later told the detectives she had been sleeping at the Leonettis’ for the

“past couple years,” (Id. at 33.) Her terminology as to the frequency of the abuse also varied

somewhat through the interview: P.D. stated she had slept over with C.D. “a couple times,” (id. at

8), then “a lot,” (id. at 22), then “every other weekend,” (id. at 33), and that Leonetti had touched her

“a couple times,” (id. at 9), “about five times,” (id.), and “five times, (id. at 5, 14.) 

II. Leonetti’s First Arrest.

Based on the interview, Kollias reported the abuse to the Department of Human Services

(“DHS”). (Kollias June 11 Report at 3.) When a records check on Leonetti yielded an Oregon City

address, Kollias contacted Detective Sergeant Justin Youngwith the Oregon CityPolice Department

to inform him of the report and decide which department would take the case. (Id.) Young and

Kollias decided Clackamas County and Oregon City would “co-investigate” the allegations, and

Young assigned Oregon City Detective Andy Kiesel to the case. (Id.) 

Meanwhile, Bray and Shipley drove to Leonetti’s house. (Bray June 10 Report at 4.) They

informed Leonetti of the allegations against him and requested he voluntarily go to their office to

discuss the accusation, but Leonetti declined and asked for the detectives’ names to give to his

attorney. (Id.) Bray asked Leonetti to place his hands behind his back, Leonetti complied, and

Shipley drove the three back to the sheriff’s office. (Id. at 5.) Leonetti was read and acknowledged

his Miranda rights, and declined to give a statement. (Id.) 

The detectives drove Leonetti back to his home and left a business card should Leonetti’s

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attorney have had any questions. (Id.) According to Leonetti, DHS contacted him later that day and

required he move out of his house due to a perceived risk to his own children. (Kitchel Decl., Ex.

1 (Deposition of Joseph Leonetti (“Leonetti Dep.”)) at 118–21.) Leonetti left home and stayed with

his parents. (Id. at 120.)

III. Charges are Filed and the Grand Jury Convenes.

The next day, Kiesel interviewed the two friends P.D. had named, both of whom confirmed

being told about the abuse. (Kitchel Decl., Ex. 1 (June 18 Reports of Andy Kiesel (“Kiesel

Reports”)) at 29, 33.) One of the friends, L.D., explained that P.D. had told her P.D. also had

noticed “white stuff . . . that came from [Leonetti]” on her sleeping bag, and that P.D. took the

sleeping bag home the next morning and washed it. (Kiesel Reports at 233.) 

Shortly thereafter, Kiesel informallymentioned hisfindingstoBraybut did not author reports

detailing the interviews until June 18, 2014, after Leonetti had been indicted. (Bray Dep. at 87–88;

Kiesel Reports at 226, 231.) It does not appear the detectives attempted to corroborate this

additional allegation or evidence of the sleeping bag until later in the investigation. (Kollias Dep.

at 42.) 

Young,Bray, and Kiesel reported the status oftheirinvestigation and the information gleaned

therefrom to District Attorney Mike Regan (“Regan”). (Franz Decl. Ex. 111 (ECF No. 21–11)

(Deposition of Mike Regan (“Regan Dep.”) at 8.) Regan, at the time the most experienced

prosecutor in child sex abuse cases in the Clackamas County District Attorney’s office, elected to

take the case himself. (Id. at 5–6.) Based on the reports before him and conversations with Bray,

Young, and Kiesel, Regan decided to charge Leonetti with four counts of sexual abuse. (Regan Dep.

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at 8; Franz Decl., Ex. 101 (“District Attorney’s Information”) at 2–3.) Regan testified he made the

charging decision based on “ease of proof.” (Regan Dep. at 9.) Regan knew that P.D. “described

multiple events, but she was unclear from the get-go as to how many.” (Id.) Based on his years of

experience in the field, to Regan, the “numbers of times that victims are abused is one of the least

consistent elements of any sex abuse case, and as a result, one of the least important, because victims

don’t think of their abuse in that way.” (Id.) Therefore, though P.D. had at least twice stated there

were five instances of abuse, Regan aimed “to take the pressure off” P.D. by lessening the burden

of production to only four instances. (Id.)

IV. Leonetti’s Indictment and Second Arrest.

Bray arrested Leonetti on June 12, 2013. (Kitchel Decl., Ex. 1 at 1.) At booking , Bray filed

and signed a document titled “Probable Cause for Lodging in Clackamas County Jail,” based on

“disclosure [of sexual abuse] made by the victim to detectives during an interview and later

corroborated by friends she disclosed to.” (Id.) The next day, Regan filed an information in circuit

court charging Leonetti with four counts of sexual abuse in the first degree, a Class B Felony in

Oregon. (District Attorney’s Information at 2–3.) Leonetti was arraigned on June 13, 2013, and

released five days later on his own recognizance. (Franz Decl., Ex.112 (ECF No. 21–12); Ex. 113

(ECF No. 21–13).) As a condition of his release, the circuit court prohibited Leonetti from having

contact with P.D. and her family, and any “minors but for supervised contact with minor family

members.” (Franz Decl., Ex.113.) 

Both P.D. and Bray testified before a grand jury, which, on June 18, indicted Leonetti on all

charges. (Regan Dep. at 9; Franz Decl., Ex. 102 (ECF No. 21–2) (“Indictment”) at 2–3.) Later that

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day, aClackamas County circuit court judge issued a warrant for Leonetti’s arrest on the four counts. 

(Franz Decl., Ex. 103 (ECF No. 21–3).)

V. Investigation Continues.

The following month, P.D. was evaluated at the Child Abuse Response and Evaluation

Services (“CARES”) Northwest center, located in the adjacent Multnomah County. (Kitchel Decl.,

Ex. 1, Kollias Dep. at 148; Regan Dep. at 133.) Ordinarily, a child from Clackamas County would

have visited the Clackamas County Children’s Center, but because Kollias’s wife worked as a

forensic interviewer at the Clackamas center, Clackamas CountyChildren’s Center staff decided the

interview should be conducted at CARES to avoid any appearance of conflict. (Kollias Dep. at

148–49.) 

Bray also interviewed several other parents with children on the soccer team, and other

members of the coaching staff. (Bray Dep. at 89; Franz Decl., Ex 119 (ECF No. 40–4), at 3–4.) The

soccer club’s coaching director informed Braythat in May2013, another parent had filed a complaint

against Leonetti with the team, alleging Leonetti had been a “little too touchy/ feely [sic]” with some

of the girls on the team, “touching players on the backside” in a way that made the parent

“uncomfortable.” (Franz Decl., Ex. 119 at 3, 6–7.) 

Defendant CCSO Sergeant Clint Pierce (“Pierce”) became head of the CCSO’s Child Abuse

Team in fall 2013. (Declaration of Clint Pierce (ECF No. 19) at 2.) In December 2014, Pierce

learned P.D. had been attending therapy sessions and may have disclosed additional abuse during

the sessions. (Kitchel Decl., Ex. 1 at 36; and Pierce Dep. at 164.) Bray and Shipley met with P.D.’s

therapist, Leasia Cleary. (Kitchel Decl., Ex. 1, at 38.) P.D. had been seeing Cleary for almost one

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year, and P.D. had discussed at least two specific instances of abuse with her. (Id.) P.D. also

disclosed to Cleary that on one of the occasions, she had witnessed Leonetti masturbating but that

she had not told anyone except for one friend, because she felt ashamed. (Id. at 39.) In Cleary’s

experience, it is common for victims of P.D.’s age to disclose elements of abuse in stages,

particularly those like P.D., who was experiencing anxiety and depression at the time. (Id.) Cleary

opined that P.D. demonstrated no “malicious motivation” to construct a false plot. (Id.) Rather, P.D.

had “really loved” the Leonetti family and felt “devastated” about losing C.D. as a friend. (Id. at

38–39.)

Bray and Shipley conducted another interview with P.D. in December 2014. (Kitchel Decl.

Ex. 1 at 44.) P.D. told the detectives that on one occasion she had “felt the shaking and brushing of

[Leonetti’s shirt] leading her to believe he was masturbating.” (Id. at 45.) P.D. stated she had

mentioned these details to her friend V.D., but not L.D., who initially had told Kiesel about potential

fluids on a sleeping bag. (Id.; Kiesel Reports at 33.) 

After receiving discovery in the criminal case, Leonetti’s criminal defense attorney, Janet

Hoffman, requested production of the sleeping bag referenced in the L.D. interview. (Declaration

of Janet Hoffman (“Hoffman Decl.”) (ECF No. 35), at 2.) Bray and Shipley followed up with P.D.

and her family, who confirmed that P.D. never brought her own sleeping bag to the Leonettis’ home. 

(Franz Decl., Ex.110 (ECF No. 21–10), at 12–17.) P.D. did not know why or when a narrative about

her taking home and cleaning a sleeping bag had emerged because she did not think she had

disclosed specific details of the abuse to L.D. (Kitchel Decl., Ex. 1, at 45.) However, she

maintained that Leonetti had “masturbat[ed] around her,” clarifying that this occurred while she

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pretended to be asleep under a blanket, not a sleeping bag. (Id.) Still, Hoffman considered this an

inconsistency in P.D.’s allegations and raised the subject in a pre-trial motion hearing in December

2014. (Hoffman Decl. at 2; Regan Dep. at 15.) At the hearing, Kollias testified that the sleeping bag

was of little concern to the detectives because it would have been expected that Leonetti’s DNA

would have been found on it, given its location in Leonetti’s house. (Kitchel Decl., Ex. 1, at 77.) 

VI. The Case is Dismissed.

The case went to trial in February 2015. Hoffman intended to offer testimony from Holly

Leonetti that P.D. had spent the night at their house only twice and that, contrary to P.D.’s

allegations, Holly had been relatively well, not sick in bed, at the time of the alleged abuse, poking

holes in P.D.’s account and arguing the CCSO and Clackamas County District Attorney’s office

suffered from conflicts of interest. (Hoffman Decl. at 2; Regan Dep. at 16–17, 23.)

After opening arguments and following a meeting between Hoffman, Regan, P.D. and her

family, and a victim’s advocate, Regan asked P.D.’s familywhether they wanted to proceed with the

case. (Regan Dep. at 20, 22; Hoffman Decl. at 2.) Regan later testified he knew the case would be

hard to win, given the absence of physical evidence, P.D.’s inconsistent references to timing and

frequency, and the few corroborating witnesses. (Regan Dep. at 16.) In a separate meeting, Regan

explained to P.D.’s family that Leonetti’s attorney “would argue that those . . . inconsistencies . . .

meant that she was a liar.” (Id. at 23.) The next morning, the family communicated to Regan and

the presiding judge they wished to dismiss the case. (Regan Dep. at 20, 22; Hoffman Decl. at 2.) 

Regan told Bray about the dismissal in a February 6, 2015 email, explaining that “certain

inconsistencies in [P.D.’s] account grew to a critical point,” and that the family “reached a unified

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decision that they did not want to go forward with the trial.” (Kitchel Decl. Ex. 1, at 78.) The basis

for the decision was “far too complicated to explain in an email,” but Regan noted it “was probably

a case [the department] should review in the future to grow and learn from.” (Id.) Regan later

testified his intention was to avoid the type of “alternative narrative” Hoffman was able to create by

“seiz[ing] upon” inconsistencies typical in this type of “she said, he said” case. (Id. at 22–23.)

Regan later stressed, however, that in his opinion, the “inconsistencies [] could be explained and did

not mean that [the abuse] did not occur.” (Id. at 23.)

VII. The Civil Suit.

On March 6, 2015, Leonetti gave notice to the Defendants he intended to file a tort claim and,

on December 2, 2015, filed the present suit in state court . (Franz Decl. Ex. 104; Notice of Removal

(ECF No. 1), Ex. 2 (“Complaint”).) He asserts state law claims for false arrest; malicious

prosecution; and, on behalf of Holly Leonetti, loss of consortium; and a 42 U.S.C. § 1983 claim

alleging violation of the First, Fourth, Fifth, and Fourteenth Amendments.2(Complaint at 1, 8–9.)

Defendants timelyremoved to this court, asserting federal question and supplemental subject

matter jurisdiction. (Notice of Removal at 2.) They now move for summary judgment on all of

Leonetti’s claims. (Defs.’ Mot. for Summ. J., (ECF No. 15) (“Motion”).)

Legal Standard

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” FED.R.CIV. P. 56(c). Summary judgment is not

2

 Leonetti withdrew his Fifth Amendment claim at oral argument. 

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proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th

Cir. 1995).

The moving party has the burden of establishing the absence of a genuine issue of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of

a genuine issue of material fact, the nonmoving partymust go beyond the pleadings and identifyfacts

which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary

judgment by relying on the allegations in the complaint, or with unsupported conjecture or

conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 

Thus, summary judgment should be entered against “a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

The court must view the evidence in the light most favorable to the nonmoving party. Bell

v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to

the existence of a genuine issue of fact should be resolved against the moving party. Hector v.

Wiens, 533 F.2d 429, 432 (9th Cir. 1976). When different ultimate inferences may be drawn,

summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th

Cir. 1981).

However, deference to the nonmoving party has limits. The nonmoving partymust set forth

“specific facts showing a genuine issue for trial.” FED. R. CIV. P. 56(e) (emphasis added). The

“mere existence of a scintilla of evidence in support of the plaintiff’s position [is] insufficient.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where “the record taken as

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a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine

issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(internal quotation marks omitted).

Discussion

Defendants assert they are entitled to summary judgment on multiple, independently

sufficient grounds. First, they argue all of Leonetti’s claims are time barred under applicable notice

requirements and statutes of limitations. Second, the individually named defendants assert they are

insulated from tort liability under principles of qualified and state-law immunity. Third, defendants

contend they are entitled to judgment as a matter of law on the merits because they acted with

probable cause sufficient under both federal and state law both to arrest and prosecute Leonetti. The

court addresses these arguments in turn.

I. Tort Claim Notice and Statutes of Limitations.

Defendants assert that Leonetti’s state false arrest and malicious prosecution, and his federal

§ 1983 claim are time barred: the state claims by the Oregon Tort Claims Act’s (“OCTA’s”) notice

requirement and statute of limitation, and the federal claim by federal accrual rules, which

incorporate Oregon personal-injury law. 

Under the OCTA, “[n]o action arising from any act or omission of a public body or an

officer, employee or agent of a public bodywithin the scope of [the Act]” may “be maintained unless

notice of claim is given . . . within 180 days after the alleged loss or injury.” OR. REV. STAT.

30.275(1)–(2)(b). This 180-day notice period begins to run when the plaintiff knows that he has

suffered some harm and knows that it is the result of tortious conduct, even if he does not know the

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full extent of the harm or that those facts had legal significance. Dunn v. City of Milwaukie, 270

Or. App. 478, 484 (2015). Formal notice is sufficient under the OTCA if it contains a “statement

that a claim for damages is or will be asserted against the public body . . . [and a] description of the

time, place and circumstances giving rise to the claim . . . .” OR. REV. STAT. § 30.275(4).

The OTCA also provides, “an 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 [the Act]shall be commenced within

two years after the alleged loss or injury.” OR. REV. STAT. 30.275(9). This two-year the statute of

limitations begins to run when the plaintiff “knows or, in the exercise of reasonable care, should

have known facts that would make a reasonable person aware of a substantial possibility that each

of the elements of a claim exists.” Smith v. Oregon Health Science University Hosp. and Clinic, 272

Or. App. 473, 479 (2015) (citing Doe v. Lake Oswego School District, 353 Or. 321, 333 (2013)).

With respect to federal claims under § 1983, state personal-injury tort law determines the

applicable statute of limitations. Owens v. Okure, 488 U.S. 235, 249–50 (1989); Trimble v. City of

Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam). Oregon’s statute of limitations for

personal injury actions is also two years. OR. REV. STAT. 12.110; see Atwood v. Oregon Dept. of

Transportation, CV-06-1726-ST, 2008 WL 803020, at *2 (D. Or. Mar. 20, 2008) (“In Oregon, §

1983 claims are governed by the two year statute of limitations in ORS 12.110”) (citing Sain v. City

of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002)). But it is federal law that governs when a § 1983

cause of action accrues. Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir.1991), cert.

denied, 502 U.S. 1091 (1992). Under federal law, a claim generally accrues when the plaintiff

“knows or has reason to know of the injury which is the basis of the action.” Id. (quotation omitted).

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The accrual date for a § 1983 claim therefore depends upon the substantive basis of the claim. 

Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). A § 1983 claim for false

arrest typically accrues when the arrest occurs. Venegas v. Wagner, 704 F.2d 1144, 1146 (9th

Cir.1983) (“[W]here false arrest . . . is alleged, the conduct and asserted injury are discrete and

complete upon occurrence, and the cause of action can reasonably be deemed to have accrued when

the wrongful act occurs.”). But a claim of malicious prosecution does not accrue until a defendant’s

acquittal or prosecution is terminated. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1060

n.11 (“[A] claim of malicious prosecution does not accrue until the plaintiff is acquitted, because

acquittal is an element of the claim.”).

A. False Arrest-Based Claims.

Leonetti was first arrested on June 10, 2013, then again on June 12, 2013, after which he was

held until his arraignment on June 18, 2013. Leonetti filed a tort notice on March 6, 2015, and his

lawsuit on December 2, 2015. Construing the facts in the light most favorable to Leonetti, his state

false arrest claim, and his § 1983 claim to the extent it rests upon his arrest, accrued at latest on June

18, 2013, when he was released from custody. By that time, Leonetti knew he had suffered some

harm as the result of tortious conduct even if he did not know the full extent of the harm he now

alleges. Therefore, Leonetti’s notice of his state law false claim, filed more than 20 months after

accrual, was untimely under the OTCA’s 180-day notice period. 

Moreover, on June 18, 2013, Leonetti knew of facts that would make a reasonable person

aware of a substantial possibility that each of the elements of his false arrest claims existed, and he

knew of the injury that founded the basis of that action. Under both Oregon and federal law, the

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elements of a false arrest claim are that a defendant intentionally confined the plaintiff, that plaintiff

is aware of the confinement, and the confinement is unsupported by probable cause. Miller v.

Columbia Cty., 282 Or. App. 348, 353–54 (2016), review denied, 361 Or. 238 (2017); Cabrera v.

City of Huntington Park, 159 F.3d 374, 380 (9th Cir.1998). By the time he was released following

arraignment, Leonetti knew defendants had intentionally confined him, twice. He had seen the

indictment that detailed the crimes of which he was accused. He also knew he believed he was

innocent of the crimes charged and, therefore, that defendants necessarily lacked probable cause to

confine him, that is, defendants had acted tortiously by arresting him. Accordingly, his state false

arrest claim and, to the extent it rests on his arrest events, his § 1983 claim, both filed two years and

five months after accrual, are respectively time-barred under the two-year statute of limitations

imposed by the OTCA and Oregon’s personal-injury law, ORS 12.110.

Leonetti argues his § 1983 claim falls under an exception to the general rule that a false arrest

claim necessarily accrues at the time of the arrest, as articulated in Cabrera. Cabrera was arrested

and prosecuted for disturbing the peace after he tried to break up a fight. Cabrera, 159 F.3d at 377. 

He was convicted but that conviction was later overturned. Id. He sued, alleging, inter alia, false

arrest and malicious prosecution. Id. at 377–80. The district court dismissed his false arrest claim

as untimely under the applicable statute of limitations, holding that the claims accrued not at the time

of acquittal but at the time of Cabrera’s initial arrest. Id. at 378. The Ninth Circuit reversed,

however, holding that because a prior case, Heck v. Humphrey, 512 U.S. 477 (1994), protected

criminal convictions from being invalidated by later civil findings, Cabrera could not have filed his

civil claim before his conviction was overturned. Id. at 380. Therefore, his civil false arrest claim

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accrued not at the time of the arrest but of the acquittal. Id. at 380 (citing Heck, 512 U.S. at 486–87

(1994)) (“[U]nder Heck, Cabrera’s false arrest [claim was] not cognizable and did not accrue until

his conviction was invalidated . . . .”).

Cabrera made clear, however, that its holding is confined only to cases in which Heck

applies, that is, if the plaintiff was actually convicted of the crime later challenged. The Cabrera

court narrowed the exception, reminding that “[w]hile the facts of Cabrera’s case fit it within Heck’s

exception, other Ninth Circuit cases that express the general rule survive Heck, see, e.g., Venegas

v. Wagner, 704 F.2d 1144, 1146 (9th Cir.1983) (statute of limitations on a § 1983 false arrest claim

accrues from the time of arrest).” Id. at n.7 (other internal citations omitted).

Leonetti, unlike Cabrera, was never convicted of the crimes of which he was accused.

Therefore, neither Heck nor Cabrera applies. Rather, Leonetti’s case fits squarely within the rule

that his false arrest claim accrued, at the latest, when he was released from custody on June 18, 2013,

following his second arrest.

With respect to his state law false arrest claim, Leonetti argues that the OTCA’s notice period

and statute of limitations did “not begin to run until discovery,” and that the question of when that

occurred is one for the jury, citing Denucci v. Henningsen, 248 Or. App. 59 (2012). (Pl.’s Resp. Br.

at 14.) Denucci, a bystander with medical training, had stopped to help a boy who had been hit by

a car when an officer arriving at the scene asked her to step back. Denucci, 248 Or. App. at 62. 

After an exchange with the officer, she took a step forward to ask for the officer’s name, and she was

arrested, she later learned, for interfering with a peace officer. Id. at 61–62. When initially she

asked the arresting officer why she was being arrested, he replied only “You know why.” Id. at 63. 

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The district attorney later dismissed the charge, and Denucci gave notice of suit — within 180 days

of the dismissal, but not of her arrest. Id. The trial court did not dismiss for untimely notice,

however, because the “discoveryrule,” applicable to both the OTCA’s notice requirement and statute

of limitations, required that the jury, not the judge, decide “what [the] plaintiff should have known

and when,” and that Denucci reasonably could not have discovered “everything she needed to know

to start the clock running until less than 180 days before she filed her notice of claim.” Id. at 66. 

The Oregon Court of Appeals affirmed, noting that “Defendant offers . . . no reason to conclude that

a reasonable person would have known that her arrest was unlawful on the day when it took place.” 

Id. at 69. As such, “questions of fact precluded the court from deciding the issue as a matter of law.” 

Id. at 67, 69–70. 

Leonetti asserts that, under Denucci, the notice period and statute of limitations on his false

arrest claim did not begin to run until he discovered some of the alleged problems with defendants’

probable cause, namely until December 2014, when detectives confirmed there was no sleeping bag

with potential physical evidence. This argument fails because Denucci, like Cabrera, is factually

distinct from this case. Unlike Denucci, Leonetti had ample reason to know for what and on what

bases he was being arrested. Bray reported, and Leonetti’s testimony later confirmed, that Bray and

Shipley expressly told Leonetti of the allegations against him in the opening moment of their visit

to his house. (Kitchel Decl., Ex. 1, at 24; 117:7–9; 118:4–15.) That Leonetti later learned neither

a sleeping bag nor physical evidence was found has no bearing on what Leonetti knew at the time

of his arrest and, thus, on when his false arrest claim accrued. Moreover, that evidence, or rather

the lack thereof , was known or should have been known to him from the onset. As early as

December 2013, Leonetti stated that when P.D. spent the night at the Leonettis’ house, the two girls

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slept in sleeping bags. (Franz Decl., Ex. 115 (ECF No. 15-15), at 2.) He later testified he believed

those sleeping bags belonged to the Leonettis. (Franz Decl., Ex. 114 (ECF No. 15-14), at 3.) 

Therefore, Leonetti had all the facts necessary to know whether there was physical evidence on the

sleeping bag in question and where that sleeping bag was located during the investigation. 

 Thus, none of the factual questions present in Denucci and which called into question the

point at which the notice period and statute of limitations began to run are present here. Leonetti’s

contention is correct that he had no way of knowing all and the exact bases of the defendant’s

probable cause to arrest and prosecute him until well into the discovery period, but under Dunn and

Smith that fact is not relevant here: the OTCA requires only that Leonetti knew he had suffered

some harm and that harm was the result of tortious conduct, even if he did not know the full extent

of the harm or that those facts had legal significance. Dunn, 270 Or. App. at 484 (2015) (interpreting

ORS 30.275(4)); Smith, 272 Or. App. at 479 (interpreting ORS 30.275(9)). 

Therefore, both Leonetti’s state false arrest claim and § 1983 claim to the extent it relies on

the arrests are time barred. 

B. Malicious Prosecution-Based Claims.

Leonetti’s malicious prosecution-based claims, however, remain timely. Under Oregon law,

the notice period and statute of limitations period for a malicious prosecution claim begins to run

and, under federal law, accrues, on the date when criminal proceedings terminate in the plaintiff’s

favor. Westwood v. City of Hermiston, 787 F. Supp. 2d 1174, 1191 (D. Or. 2011), aff’d, 496 F.

App’x 728 (9th Cir. 2012) (citing Edwards v. State ex rel. Dep’t of Human Res. Children Adult and

Families Div., 217 Or. App. 188, 198 n.2 (2007)) (“Oregon courts []have held claims for malicious

prosecution under Oregon law do not accrue until ‘the criminal proceedings terminate in plaintiff's

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favor.’”); Davidson v. Deschutes Cty., No. 6:15 CV 52-TC, 2015 WL 4464145, at *3 (D. Or. July

21, 2015) (“Plaintiff’s [§ 1983] claim for malicious prosecution accrued when the prosecution was

terminated.”).

The criminal proceeding against Leonetti terminatedwhen the state dismissed its case against

him on February 6, 2015, at which point the notice period and statute of limitations on a malicious

prosecution claim began to run. Leonetti gave notice of his suit one month later on March 6, 2015,

in compliance with Oregon’s180-day notice period. He filed the present suit on December 2, 2015,

well within the two-year window imposed on his state claim by ORS 30.275 and on his §1983 claim

by ORS 12.110. Thus, his state malicious prosecution claim and his §1983 claim, to the extent it

rests on constitutional violations arising from his prosecution, are timely. 

II. Probable Cause. 

Even if Leonetti’s false arrest-based claims were timely, they, like Leonetti’s maliciousprosecution-based claims, fail on substance because Defendants at all relevant times acted with

probable cause. 

Leonetti was charged under ORS 163.427, which criminalizes “sexual contact” with a

“victim [] less than 14 years of age.” Defendants assert two independentlysufficient bases to support

probable cause that Leonetti committed this crime: (1) the content of P.D.’s initial statement to

Detectives Bray and Shipley; and (2) the grand jury indictment and arrest warrant signed by a judge. 

Leonetti challenges both these grounds, arguing that P.D.’s testimony was neither sufficiently

trustworthy nor reliable to support probable cause and that an indictment is only some evidence of

probable cause that can be rebutted by other evidence, including false testimony or other wrongful

conduct. Leonetti further contends that even if officers had probable cause to arrest or indict

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Leonetti on one charge, they lacked probable cause required to support all of the charges.

Under federal law, probable cause exists “where the facts and circumstances within . . .

officers’ knowledge and of which they had reasonably trustworthy information are sufficient in

themselves to warrant a person of reasonable caution in the belief that an offense has been or is being

committed.” Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (internal alterations and

quotation marks omitted). Whether officers act with probable cause “depends on the totality of the

facts available to the officers, who may not disregard facts tending to dissipate probable cause.” 

Sialoi v. City of San Diego, 823 F.3d 1223, 1232 (9th Cir. 2016) (internal quotation omitted). 

Probable cause does not require “certaintyor even preponderance of the evidence,” but officers must

be able to conclude there is a “fair probability” the individual committed a crime. United States v.

Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006). “Conclusive evidence of guilt is not necessary to

establish probable cause” to seize an individual. Ramirez v. City of Buena Park, 560 F.3d 1012,

1023 (9th Cir. 2009). But “mere suspicion, common rumor, or even strong reason to suspect” that

a plaintiff has engaged in criminal behavior are not enough to establish probable cause. Id. (citations

omitted). 

Oregon employs a probable cause standard substantially similar, but not identical, to the

federal standard. See Gustafson v. Payless Drug Stores Nw., Inc., 269 Or. 354, 356 (1974)

(explaining probable cause exists when an officer “reasonably believes that the person accused has

acted . . . in a particular manner, and []correctly believes that such acts . . . constitute at common

law or under an existing statute the offense charged . . .”); see also State v. Stoudamire, 198 Or. App.

399, 405 (2005) (Armstrong, J., concurring) (rejecting government defendants’ syllogism that

“Oregon constitutional law on probable cause . . . is at least as protective as federal constitutional

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law,” reminding of courts’ obligation to “make an independent assessment” of each). 

Defendants argue they acted with probable cause at each point relevant to Leonetti’s claims:

the June 10, 2013 arrest, the June 12, 2013 arrest, Leonetti’s warrant issuance and indictment, and

the subsequent prosecution. The court analyzes each of the four events below. 

A. June 10, 2013 Arrest. 

When Bray and Shipley first arrested Leonetti, they knew only of P.D.’s parents’ account of

her disclosure and statements P.D. made during the first interview with the detectives. Still, those

facts alone were likely independently sufficient to support probable cause to arrest Leonetti. 

Defendants first rely on Ohio v. Clark, 135 S. Ct. 2173 (2015), to argue that a statement from

a child victim as young as three is sufficient to support probable cause that abuse occurred. That

reliance ignores, however, that the statement in Clark came only after the boy’s teacher’s noticed

pronounced injuries on the toddler’s body. Id. at 2178. Thus, the boy’s statement was corroborated

strongly by physical evidence, rendering Clark factually inapposite to the situation here.

Several other cases, however, are more instructive. Though the Ninth Circuit has held that

“uncorroborated, inconsistent statements of [a] very young child” are insufficient to establish

probable cause, it has also suggested and affirmed that such statements, when coupled with other

evidence, can be enough. Stoot v. City of Everett, 582 F.3d 910, 918 (9th Cir. 2009); accord.

Guerrero v. City &Cty. of San Francisco, No. C00-1247 THE, 2003 WL22749099, at *1 (N.D. Cal.

Nov. 18, 2003), aff’d, 156 F. App’x 36 (9th Cir. 2005). In Stoot, officers relied on a four-year-old

girl’s statement describing sexual abuse by a teenage boy to hold and interrogate the teen until he

confessed. Stoot, 582 F.3d at 913–16. The child confirmed specific acts occurred in response to

pointed questions, but “by the end of the interview” she had “reversed herself” as to whether the

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abuse had occurred at all and what exactly happened. Id. at 920. The trial court found probable

cause existed based on the child’s statements; statements from the girl’s mother; and the teen’s

confession, made without counsel present. Id. at 916. But when that confession was later deemed

inadmissible, the Ninth Circuit held that the statements from the child and her mother alone were

insufficient to establish probable cause, noting the child’s “very young” age and the inconsistencies

in her account, including that at one point, she had confused the teenager accused with another boy. 

Id. at 919–20. These factors “point[ed] to the need for further investigation and corroboration to

establish probable cause.” Id. at 920.

In so holding, the Stoot court distinguished that case from Easton v. City of Boulder, 776 F.2d

1441 (10th Cir.1985). There, a three-year-old boy told his parents Easton had molested him. Id. at

1443–46. A five-year old boywho witnessed the abuse corroborated the boy’s account. Id. at 1443. 

Police also visited the alleged crime scene, which was found to match both boys’ accounts, and

interviewed Easton’s manager, who described him as a loner who was “observed in the past staring

at the children playing in the common area of the apartment complex.” Id. at 1443–44 (internal

quotation marks omitted). The Tenth Circuit upheld a probable cause determination based in large

part on the children’s statements, noting that “[i]n a great many child molestation cases, the only

available evidence that a crime has been committed is the testimony of children” and “[t]o discount

such testimony from the outset would only serve to discourage children and parents from reporting

molestation incidents and to unjustly insulate the perpetrator of such crimes from prosecution.” Id.

at 1449. The court was also lenient toward “apparent inconsistencies” in the statements, reasoning,

“the skepticism and careful scrutiny usually found in cases involving informants, . . . is appropriately

relaxed [when examining informant evidence used to support a claim of probable cause] if the

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informant is an identified victim . . . .” Id. at 1450. Though certain statements of the child victim

were self contradictory, those inconsistencies “[did] nothing to undermine the solid core of the

children’s statements regarding [one instance of assault] and the location of the perpetrator’s

apartment.” Id. at 1450. Thus, as the Stoot court later distinguished, the police in Easton “had

substantial evidence corroborating the victim’s statements of alleged abuse, rendering the officers’

reliance on those statements reasonable. Stoot, 582 F.3d at 921. 

Both the Ninth Circuit and the Oregon Court of Appeals have also affirmed a finding of

probable caused based on even less. In Guerrero, a father reported to police that his six-year-old

daughter had been sexually abused by her mother’s boyfriend. Guerrero, 2003 WL 22749099, at

*1, aff’d, 156 F. App’x 36 (9th Cir. 2005). The girl revealed the abuse to her counselor, and later to

both a city investigator and a nurse at a children’s sexual abuse resource center. Id. at *2. A

magistrate judge issued an arrest warrant based on the police incident reports, the counselor’s report,

and one investigator’s questionable summary statement, which was later deemed inadmissible. Id.

at *3. The prosecutor later dismissed the case one day into trial after the girl admitted to fabricating

the story at her father’s demand, and the defendant-turned-plaintiff sued for civil rights violations.

Id. at *4. Still, the district court was “not convinced that a magistrate would have declined to find

probable cause to arrest for lewd and lascivious conduct given the[] consistent statements of

molestation to a counselor and a police officer,” particularly given the resource center interview,

which had not even been attached to the warrant application. Id. at *8. See also State v. Mace, 67

Or. App. 753, 760 (1984) (affirming that probable cause existed to support a warrantless arrest based

only on a four-year-old child’s disclosure of sexual abuse to her mother). 

Although the facts here fall somewhere between these comparators, they support probable

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cause. At thirteen, P.D. was older than the child victims in Stoot, Easton, Guerrero, and Mace at

the time of her initial disclosure to her mother. From the outset of her first interview with detectives,

P.D. struck them as communicative and forthcoming. That interview, like that in Easton, contained

some inconsistencies, specifically concerning the dates and frequency of the abuse, and later, the

specific sex acts performed. But at least twice, P.D. recounted five instances of abuse. Additionally,

to both Regan and Cleary, the nature of the inconsistencies in P.D.’s account were not uncommon

in cases of this sort. (See Regan Dep. at 9 (“It’s [] my experience . . . that numbers of times that

victims are abused is one of the least consistent elements of any sex abuse case, and as a result, one

of the least important, because victims don’t think of their abuse in that way); Kitchel Decl. Ex. 1,

Transcript of Leasia Cleary Interview, at 41 (“remembering [] in pieces . . . fits with what I know

about trauma . . . .”).) Moreover, whether Leonetti also masturbated in P.D.’s presence was

immaterial to the crime of which Leonetti was suspected, ORS 163.427, which requires only sexual

contact generally. Most importantly, as in Stoot, these inconsistencies did not undermine the “solid

core” of P.D.’s statements regarding the conduct she described. Finally, unlike the child in Easton,

P.D. never wavered as to the identify of her abuser. And , unlike in Mace, where officers had only

a mother’s account of what her child had told her about the abuse, here, the disclosure came directly

from P.D., the victim. Based on those facts, Bray and Shipley would have been able to conclude

there was a fair probability Leonetti had committed the crimes P.D. alleged. 

B. June 12, 2013 Arrest. 

Defendants had more facts to support probable cause by the time Leonetti was arrested for

the second time. Like in Easton, Defendants here did not rely on P.D.’s statements alone. Under

the Ninth Circuit’s reasoning in Stoot, even if initial, inconsistent statements pointed to a need for

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further investigation and corroboration to establish probable cause, the detectives conducted that

further investigation before arresting Leonetti again on June 12, 2013. While Bray and Shipley

interviewed P.D. on June 10, Kiesel simultaneously interviewed V.D. and, the following day, L.D. 

Both friends confirmed that P.D. had made similar disclosures them about the abuse. That P.D.

made these disclosures contemporaneously, close to the period of the abuse, increases this

corroboration’s probative value. Though based on the record, it does not appear Bray and Shipley

knew about Kiesel’s interviews when they first arrested Leonetti on June 10, the investigation team

appears to have been aprised of the results of Kiesel’s interviews by the time the June 12 arrest

occurred. Thus, even if P.D.’s disclosure to her mother and initial statement to detectives were

insufficient to support probable cause, by the time of Leonetti’s second arrest, defendants had more

than enough facts to warrant a person of reasonable caution to believe that Leonetti had committed

the crimes alleged. 

C. Warrant and Indictment. 

Even if doubt persisted as to probable cause on the facts alone, Defendants’ second basis put

forth to support probable cause — the grand jury indictment and arrest warrant — independently

supports a presumption of probable cause, one Leonetti now must rebut. 

Under both federal and Oregon state law, grand jury indictment constitutes prima facie

evidence of probable cause. Libby v. City of Medford, No. 1:15-CV-00298-CL, 2017 WL 2219995,

at *5 (D. Or. Mar. 17, 2017), report and recommendation adopted, No. 1:15-CV-00298-CL, 2017

WL2219980 (D. Or. May 19, 2017) (citing among other cases, Awabdy, 368 F.3d at 1067); Hryciuk

v. Robinson, 213 Or. 542, 551 (1958); Shoemaker v. Selnes, 220 Or. 573, 581(1960). The Supreme

Court has made clear that “an indictment, ‘fair upon its face,’ and returned by a ‘properly constituted

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grand jury,’ conclusively determines the existence of probable cause and requires issuance of an

arrest warrant without further inquiry.” Gerstein v. Pugh, 420 U.S. 103, 117, n.19 (1975); see also

Kaley v. United States, 134 S. Ct. 1090, 1098 (2014) (“The grand jury gets to say — without any

review, oversight, or second-guessing — whether probable cause exists to think that a person

committed a crime.”). To rebut this presumption, a plaintiff must “overcome” the evidence with

“proof that the [indictment or warrant] was obtained by false testimony or other improper means.” 

Awabdy, 368 F.3d at 1067 (stating a plaintiff can overcome a finding of probable cause based on a

grand jury indictment “by showing that the criminal prosecution was induced by fraud, corruption,

perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith”); Hryciuk, 213 Or.

at 551 (1958) (“the duty devolves upon the plaintiff to prove that such action was obtained by false

testimony or other improper means.”).

A circuit court judge issued a warrant for Leonetti’s arrest on all four counts of sexual abuse

in the first degree. The grand jury returned an indictment against Leonetti on all four counts. These

two instruments provided prima facie evidence of probable cause that Leonetti now must rebut.

Leonetti fails to do so, as he submits no evidence that creates a genuine issue of material fact

that any of the charges in either the indictment or the warrant were obtained by false testimony or

other improper means. Nothing in the record suggests any defendant presented false information

to the grand jury or judge, nor does Leonetti allege as much. Rather, Leonetti offers three general

arguments to challenge the probable cause presumption. First, he offers Regan’s deposition

testimony opining the case was — in Leonetti’s attorney’s words, not Regan’s — “unwinnable.”

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(Pl.’s Resp. Br. at 18.)3 Leonetti then extends his attorney’s characterization to infer that “[i]f a case

is ‘unwinnable,’ there is no probable cause.” But that a case may be difficult to try or win does not

mean investigators and prosecutors lack probable cause to prosecute the case. And such evidence

hardly supports a showing of the bad faith required to rebut a presumption of probable cause created

by an arrest warrant signed by neutral judge and an indictment. 

Second, Leonetti alludes to conflicts of interest at the CCSO, but fails to present evidence

that these potential conflicts created structural unfairness or specific instances of bias with a potential

to compromise the investigation. 

Third, Leonetti does not argue that Bray lied to the grand jury, but he implies that because

“the CCSO never followed up to get the sleeping bag, and yet revealed only late in the game to

Leonetti’s counsel that no such sleeping bag existed,” Bray is liable for failing initially to notify

Regan about the sleeping bag or, rather, lack thereof. This, Leonetti argues, was an “exonerating

fact.” (Pl.’s Resp. Br. at 8–9, 18.) 

That argument misconstrues and confuses both the facts and the law. First, though Leonetti

infers Bray never told Regan about the potential existence of the sleeping bag prior to charging, the

record suggests otherwise. Though Keisel authored his interview reports only after Leonetti was

charged, Kiesel orally told Bray about his interview with L.D. “pretty quick[ly]” after the interview,

3

 Regan stated during his deposition:

I told [P.D. and her family] after hearing the strategy of the defense for the first time

that I didn’t think we could overcome the reasonable doubt that was going to exist

because of the arguments that were being put forward and it was basically a she said

he said case. And those cases are always tough, and in this case it became much

tougher.

(Regan Dep. at 21.) 

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and Regan testified he made the charging decision based on both submitted reports and conversations

with Bray, Young, and Keisel. (Bray Dep. at 37; Regan Dep. at 8.) The record therefore suggests

Regan did know about the possibility of physical evidence on a sleeping bag, if not from Bray, then

directly from Kiesel, when he prepared his district attorney’s information and submitted the case to

the grand jury. 

Second, that no sleeping bag with physical evidence was found is not an exonerating fact. 

An absence of one piece of incriminating evidence does not equate to the existence of exculpatory

evidence. If the sleeping bag has any relevance, it represents an area of consistencyin P.D.’s account

of the abuse. P.D. stated in her initial interview that when she spent the night at the Leonettis’, she

slept in a sleeping bag. P.D.’s friend, L.D., then stated that P.D. had also told her Leonetti

masturbated on a sleeping bag and added, apparently erroneously, that P.D. had subsequently taken

it home to clean. Based on the record, it appears Defendants chose initially not to pursue that lead. 

This could have been due to any number of reasons, for example, Kiesel may have, apparently

rightly, found that portion of L.D.’s account non-probative or, as Kollias testified, of little import

to the investigation, since they would have expected to find Leonetti’s DNA on a sleeping bag at his

house regardless of whether abuse in fact occurred. However, when, months later, P.D.’s disclosure

of masturbation allegations were corroborated byCleary, defendants followed up. At that point, P.D.

clarified, and her parents confirmed, that the girls slept in sleeping bags found in the Leonettis’ closet

and that none of those linens were ever brought to or cleaned at P.D.’s house. This account is

consistent with Leonetti’s testimony as well. Thus, not only was Defendants’ investigation of the

sleeping bag narrative sound, the findings of that investigation were consistent with P.D.’s original

account of the abuse. 

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Third, even if Defendants’ investigatory tactics with respect to the sleeping bag were in any

way questionable, Leonetti cannot retroactively challenge those tactics as a means to rebut probable

cause, especially probable cause determined by a grand jury and neutral judge. The Supreme Court

has made clear that officers have no obligation to perform any “particular investigatory tool.” 

Arizona v. Youngblood, 488 U.S. 51, 58–59 (1988). To illustrate, “a prosecution for drunken

driving that rests on police observation alone; the defendant is free to argue to the finder of fact that

a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to

perform any particular tests.” Id. at 59. Indeed, the Ninth Circuit has stated “[o]nce probable cause

is established, ‘an officer is under no duty to investigate further or to look for additional evidence

which may exculpate the accused.’” Cameron v. Craig, 713 F.3d 1012, 1019 (9th Cir. 2013)

(quoting Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003).) Accordingly, Leonetti fails to rebut

the prima facie evidence of probable cause created by the indictment and the arrest warrant.

D. Prosecution.

Leonetti contends that the probable cause standard required to support prosecution is a

narrower, and thus higher, than that required to support an initial arrest. Several circuits have

articulated and employed a different, narrower standard of probable cause when analyzingmalicious

prosecution claims. Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682–85 (7th Cir. 2007) (citing

Johnson v. Knorr, 477 F.3d 75, 83–85 (3d Cir. 2007); Uboh v. Reno, 141 F.3d 1000, 1005 (11th

Cir.1998); Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); Rivera–Marcano v. Normeat Royal

Dane Quality A/S, 998 F.2d 34, 38 (1st Cir. 1993). The Seventh Circuit in Holmes, held that

“probable cause to believe an individual committed one crime . . . does not foreclose a malicious

prosecution claim for additionally prosecuting the individual on a separate charge.” Id. at 682. The

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court explained, “[i]n this respect, a malicious prosecution claim is treated differently from one for

false arrest: whereas probable cause to believe that a person has committed any crime will preclude

a false arrest claim, even if the person was arrested on additional or different charges for which there

was no probable cause.” Id.

The Ninth Circuit does not appear yet to have addressed this question, but it has noted, at

least within the context of collateral estoppel, that a probable cause determination at a preliminary

hearing is not necessarilydispositive of a subsequent malicious prosecution claim because “probable

cause to continue a prosecution may disappear with the discovery of new exculpatory evidence after

the preliminary hearing.” Haupt v. Dillard, 17 F.3d 285, 290 n.5 (9th Cir. 1994), as amended (Apr.

15, 1994). “In such a case, state actors who are made aware of this evidence but then suppress it may

be liable for malicious prosecution under § 1983. Id. (citing Weg v. Macchiarola, 995 F.2d 15,

17–18 (2nd Cir. 1993); see also Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009)

(analyzing separately the probable cause sufficient to support an arrest and that to support

prosecution). 

Other similarly postured cases since, however, have received uniform probable cause

analyses. See e.g., Puccetti v. Spencer, 476 F. App’x 658, 660 (9th Cir. 2011) (employing the same

probable cause standard for both inquiries, holding that officers’ probable cause to arrest served as

a “complete defense” to plaintiffs’ malicious prosecution claim); see also Radocchia v. City of Los

Angeles, 479 F. App’x 44, 45 (9th Cir. 2012) (holding plaintiff’s “claim for malicious prosecution,

[was] barred by the finding that there was probable cause for his arrest”). Even so, the Ninth Circuit

has affirmed the denial of one plaintiff’s Haupt challenge when he failed to show “any discovery of

new or even exculpatory evidence after the preliminary hearing, any attempt by the prosecution to

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suppress the evidence, or any other wrongful conduct by the prosecution in the Criminal Case.”

Pierson v. Storey Cty., No. 3:12-CV-00598-MMD, 2015 WL 995124, at *5 (D. Nev. Mar. 5, 2015),

aff’d sub nom. 682 F. App’x 577 (9th Cir. 2017). The court finds the Seventh Circuit’s approach

in Holmes convincing and consistent with the Ninth Circuit’s reasoning in Haupt. 

Additionally, a similar inquiry is warranted under Oregon law. The Oregon Supreme Court

has recognized that even if probable cause exists for an arrest, “it might not exist later, during

prosecution,” noting that if “[u]pon additional facts coming to the knowledge ofthe defendants after

the arrest, probable cause to prosecute could evaporate entirely.” Ira v. Columbia Food Co., 226 Or.

566, 571–72 (1961). 

As such, this court analyzes Defendants’ actions here also under a stricter probable cause

standard that requires not only that defendants had probable cause initially to arrest Leonetti, but also

later to prosecute him for each of the four counts of sexual abuse with which he was charged. This

inquiry includes consideration not only of the evidence giving rise to the probable cause to arrest

Leonetti but, under Haupt and Ira, of later discoveries that may have eroded probable cause to

continue the prosecution.

 Even under this more exacting standard, Defendants maintained probable cause sufficient

to warrant continuing Leonetti’s prosecution. Once charges were filed and the indictment was

returned, Defendants gathered additional facts to support probable cause. They collected and relied

on statements P.D. made to a trained forensic nurse. When Sergeant Pierce learned P.D. had been

seeing a counselor, detectives interviewed Cleary. Under Guerrero, additional disclosures like these

strongly support probable cause. When Cleary’s account corroborated the masturbation allegation,

detectives followed up with P.D. and her family. Detectives conducted a second interview with P.D.,

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in which the core of her account remained consistent. Detectives also interviewed parents of other

children on the soccer team and other members of the soccer team coaching staff, which revealed

at least one other allegation of similar misconduct by Leonetti made before P.D.’s allegations were

made to the Defendants. The CCSO detectives never visited the Leonetti house, the alleged crime

scene, nor questioned Holly Leonetti about the allegations, but these alleged failings that Leonetti

relies upon are not material: the location of the abuse was never disputed and Bray testified that

based on Leonetti’s refusal to speak to the detectives without his lawyer, he believed he could

contact the Leonettis only through Leonetti’s criminal defense attorney. 

Thus, Leonetti fails to show any discovery of new or exculpatory evidence, any attempt by

Defendants to suppress the evidence, or any other wrongful conduct that might suggest the erosion

of probable cause against him. To the contrary, the additional facts gathered by Defendants were

sufficient to warrant Defendants’ continued belief that Leonetti had committed the crimes charged. 

Rather than dissipate, as the investigation progressed, probable cause grew more robust. 

III. Federal Claim. 

A. Constitutional Violations.

42 U.S.C. § 1983 “is not itself a source of substantive rights, but merely provides a method

for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94

(1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3(1979) (internal quotation omitted)). 

Leonetti brings suit under§ 1983, alleging Defendants’ actions deprived him of his constitutional

rights under the First, Fourth, and Fourteenth Amendments.

Addressing Leonetti’s Fourth Amendment argument first, the Fourth Amendment protects

“[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures,” U.S.

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CONST. amend. IV. A “seizure” is a restraint on personal movement such that a person is not free

to leave, typically an arrest event or pre-charge detention. Brendlin v. California, 551 U.S. 249, 254

(2007). With some exceptions, none of which are relevant here, a Fourth Amendment seizure is

“reasonable” only if based on probable cause. Bailey v. United States, 568 U.S. 186, 192 (2013).

As outlined supra in Part I.A, the portions of Leonetti’s § 1983 claim that derive from his 

June 2013 arrest events are time barred. Even if they were timely, because, as discussed in Parts

II.A–B, the court concludes Defendants acted with probable cause, the Fourth Amendment seizures

represented by both his arrests were reasonable, and therefore, constitutional. 

With respect to the timely portions of Leonetti’s § 1983 claim, those that occurred after

Leonetti was released from custody following his arraignment, the Fourth Amendment likely does

not apply. Because he was released on his own recognizance, it does not appear, and Leonetti does

not allege, that he was seized under the meaning of the Fourth Amendment at any time following his

two arrests.

The law remains somewhat unsettled as to whether malicious prosecution alone, absent any

discrete Fourth Amendment seizure, implicates the Fourth Amendment. See Manuel v. City of Joliet,

Ill., 137 S. Ct. 911, 917 (2017) (holding plaintiff could maintain a § 1983 claim under the Fourth

Amendment despite time-barred false arrest claims, but premising that holding on fact plaintiff had

been detained, and thus seized, pretrial); Albright v. Oliver, 510 U.S. 266, 274 (1994) (“The Framers

considered the matter of pretrial deprivations of libertyand drafted the Fourth Amendment to address

it.”); Gerstein, 420 U.S. at 114 (holding Fourth Amendment requires a judicial determination of

probable cause as a prerequisite to any extended restraint on liberty following an arrest); Galbraith

v. Cty. of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002) (holding “Fourth Amendment principles,

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and not those of due process” governed case involving false arrest and malicious prosecution, with

no mention of whether plaintiff had been detained pre-trial). 

Here, regardless of whether the Fourth Amendment is implicated by malicious prosecution

without pre-trial detention, again, no Fourth Amendment violation occurred because Defendants at

all relevant times acted with probable cause. 

Leonetti also claims Defendants violated his First, Ninth, and Fourteenth Amendment rights. 

Based on his response brief, this argument derives at least in part from Doe v. Irwin, 441 F. Supp.

1247 (D. Mich. 1985), rev’d, 615 F.2d 1162 (6th Cir. 1980). Leonetti cites Irwin for its suggestion

that the “rights of parents to the care, custody and nurture of their children is of such character that

it cannot be denied without violating those fundamental principles of liberty and justice which lie

at the base of all our civil and political institutions[,]” and that such rights are “fundamental rights

protected by the First, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution.” 

Id. at 1251. 

Leonetti’s reliance on Irwin is misplaced for two reasons. For one, Irwin arose when parents

sought to stop county health services from providing contraceptives to their teenage children. Id.

at 1248. Thus, it is factually and contextually distinct from the instant case. And second, even if the

case were applicable, the parents’ rights there were not so fundamental as the trial court suggested: 

The Sixth Circuit subsequentlyreversed the initial injunction and held the health providers’ practices

to be constitutional. Doe v. Irwin, 615 F.2d 1162, 1169 (6th Cir. 1980). 

Leonetti also argues his constitutional rights “to earn a living at his chosen profession as a

soccer coach,” “to family integrity and to be able to live with his wife and children . . .” were

violated. (Pl.’s Resp. Br. at 19.) These arguments appear based on the prohibition during the

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investigation and prosecution of Leonetti having contact with minors, including his own minor

children. 

None of the cases Leonetti puts forth in support of this argument are analogous or even

implicate the constitutional provisions at issue in this case. He cites generallySupreme Court of New

Hampshire v. Piper, 470 U.S. 274 (1985), Frazier v. Heeve, 482 U.S. 641 (1987), and Tangier Sound

Waterman’s Ass’n v. Pruitt, 4 F.3d 264 (4th Cir. 1993). But Leonetti provides no pincites, and it is

unclear how, if at all, these cases support his position. Piper and Frazier both involved the right for

a non-resident to practice law in a neighboring state (Piper, 470 U.S. at 277–78, Frazier, 482 U.S.

at 642–43); and Tangier involved a challenge to a state-imposed fee for non-resident fishermen.

Tangier Sound, 4 F.3d at 265–66. Piper and Tangier Sound turned on the Privileges and Immunities

Clause of Article IV of the Constitution, not any of the amendments at issue here. Piper, 470 U.S.

at 279; Tangier Sound, 4 F.3d at 266. Though Frazier arose from a challenge under numerous

constitutional provisions, the Court did not address any of the constitutional challenges, instead

deciding the issue on other grounds, Frazier, 482 U.S. at 646–50. Leonetti also cites Santosky v.

Kramer, 455 U.S. 745, 753 (1982) for its proclamation that “freedom of personal choice in matters

of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” But

Santosky arose in a vastly different context — the state’s right to terminate parental rights amid

accusations of parental neglect, Santosky, 455 U.S. at 747 — and therefore holds little relevance

here. 

Though Leonetti characterizes his pretrial restriction as an almost complete ban on his

familial association, his conditional release order granted Leonetti a specific exception permitting

“supervised contact with minor family members.” (Franz Decl., Ex. 113.) Leonetti testified that

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his “protective order was to not be alone with minors including [his] children, or spend the night in

[his] house. [He] could be at [his] house with an adult.” (Leonetti Dep. at 121.) Holly Leonetti

stated the family was ordered “to have two chaperones, not just [her], for a while,” but did not

specify from where or whom that order came. (Kitchel Decl., Ex. 1, Deposition of Holly Leonetti,

at 104.) 

Even assuming the Leonettis’ accounts of these additional restrictions are true, Leonetti’s

opportunities to pursue his livelihood as a youth soccer coach and to associate with his minor

children were affected only collaterally by those conditions. Such conditions do not rise to a

constitutional violation. See United States v. Wolf Child, 699 F.3d 1082, 1092 (9th Cir. 2012)

(noting,“[t]he existence of a constitutionally protected liberty interest . . . does not render

impermissible any condition that would interfere with the parent-child relationship.”) A parent’s

fundamental right to familial association “is not absolute” and “must be balanced against the

interests of the state, and when conflicting, against the interests of the children.” Kruse v. Hawai’i,

68 F.3d 331, 336 (9th Cir.1995) (citing Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.1991) and

Woodrum v. Woodward County, 866 F.2d 1121, 1125 (9th Cir.1989).) Reported child abuse, in

particular, “raise[s] a valid governmental interest sufficient” to warrant even significant interference

with familial relationships. Woodrum, 866 F.2d at 1125 (upholding removal of children from home

after report of child abuse). 

Leonetti also argues “[b]eing subjected to malicious prosecution deprived [] Leonetti of his

constitutional rights under the 14th Amendment.” (Pl.’s Resp. Br. at 20.) He cites Awabdy v. City

of Adelanto, 368 F.3d 1062 (9th Cir. 2004), arguing the case establishes that the Fourteenth

Amendment is a proper basis for a § 1983 action and that “the rights asserted can be freedom of

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assembly, freedom of association, freedom of speech, or the right to pursue an occupation.” (Id.) 

This case does not help his position. 

Awabdy served on the City Council and often took positions critical to other municipal

officials. Awabdy, 368 F.3d at 1065. Disgruntled councilmembers made false allegations about

Awabdy, noting his “Arabic extraction,” and, two weeks before council elections, countyprosecutors

charged Awabdy with embezzlement of public funds. Id. Awabdy lost reelection, and prosecutors

subsequently dropped the embezzlement charges. Id. at 1066. Awabdy sued, asserting malicious

prosecution under § 1983. Id. The Ninth Circuit reversed the lower court’s dismissal of Awabdy’s

case, clarifying that although there exists “no substantive due process right [] under the Fourteenth

Amendment to be free from prosecution without probable cause[,]” malicious prosecution can be

brought under § 1983 when a plaintiff can prove, in addition to the elements of malicious

prosecution, that “the defendants acted with the purpose of depriving him of a ‘specific constitutional

right,’” such as the “freedom of assembly, []freedom of association, [] freedom of speech, and [] the

right to pursue an occupation.” Id. at 1069. 

In Awabdy’s case, the facts supported that defendants had conspired to deprive Awabdy of

both his First Amendment rights by using the charge in an attempt to silence his political campaign

and his right to equal protection because they were motivated by racial animus. Id. at 1069–70. As

such, Awabdy could support a § 1983 claim for malicious prosecution, by also alleging violations

of the First and Fourteenth Amendments. Id. 

In Leonetti’s case, however, the facts support no such claim. Leonetti does not allege he is

a member of any protected class and, based on the record, it does not appear Defendants acted with

the purpose of denying him any political or religious freedom. As addressed above, the condition

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prohibiting contact with minors does not rise to a free speech or association violation. Because no

specific constitutional right has been violated, Leonetti cannot rely solely on alleged malicious

prosecution to sustain his § 1983 claim. See also Freeman v. City of Santa Ana, 68 F.3d 1180, 1189

(9th Cir. 1995), as amended on denial of reh’g and reh’g en banc (Dec. 29, 1995) (“Malicious

prosecution, by itself, does not constitute a due process violation . . . .”)

Leonetti also offers four other cases to argue malicious prosecution alone can amount to a

constitutional violation, but again, none are apt. Two are irrelevant. See Lee v. Mihalich, 847 F.2d

66 (3rd. Cir. 1988) (including no mention of Fourteenth Amendment and later abrogated on that very

ground in Donahue v. Gavin, 280 F.3d 371 (3d Cir. 2002); N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1563

(11th Cir. 1990) (declining to address plaintiff’s Fourteenth Amendment argument). And two are

inapposite. In the first, Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987), the Ninth

Circuit held that “contrived charges, . . . false police reports,” and “bad faith” criminal prosecution

could rise to a Fourteenth Amendment violation when malicious prosecution was based on racial

discrimination violative of the Equal Protection Clause. Leonetti alleges no such racial

discrimination here. In the second case, Goodwin v. Metts, 885 F.2d 157, 163 (4th Cir. 1989), rev’d

on other ground sub nom., Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012), the Fourth Circuit 

held malicious prosecution could support a due process violation when an officer hid that someone

else had confessed to the crime and urged the prosecution should continue. Id. at 159. Goodwin’s

holding conflicts with the Ninth Circuit’s jurisprudence in this area, is non-binding on this court, and

involved affirmative government misconduct far more egregious than the alleged failings Leonetti

relies on here. The court therefore finds the Fourth Circuit’s reasoning in Goodwin unpersuasive and

declines to extend it here. 

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Finally, Defendant Clackamas County asserts the additional defense that it is not liable for

Leonetti’s § 1983 claim because the municipality itself did not cause the alleged violation. 

A municipality cannot “be held liable under § 1983 on a respondeat superior theory.” 

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). That is, “a municipality

can be found liable under § 1983 only where the municipality itself causes the constitutional

violation at issue,” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989), specifically, “when

execution of a government’s policy or custom . . . inflicts the injury . . . .” Monell, 436 U.S. at 694. 

Leonetti does not appear to assert Clackamas County caused the constitutional violation at issue. 

Nor does he point to any injury-inflicting Clackamas County or CCSO policy or custom, and the

court finds no evidence of such a policy or custom in the record.

Moreover, “[i]f a person has suffered no constitutional injury at the hands of the individual

[] officer, the fact that []departmental regulations might have authorized the [violation] is quite

beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curium) (“[N]either

Monell . . . , nor any other of our cases authorizes the award of damages against a municipal

corporation based on the actions of one of its officers when . . . the officer inflicted no constitutional

harm.”); see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (holding

plaintiff could not maintain a claim for municipal liability because “there was no underlying

constitutional violation”). Because, as previously explained, no underlying constitutional violation

occurred, Defendant Clackamas County is not liable under § 1983. 

Accordingly, all Defendants are entitled to summary judgment on Leonetti’s federal claim.

B. Qualified Immunity.

 Even if Leonetti could establish any of his constitutional rights were violated, Defendants

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Bray, Shipley, Kollias, and Pierce are qualifiedly immune from § 1983 liability. 

Qualified immunity shields § 1983 defendants “[f]rom liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This

standard “gives ample room for mistaken judgments by protecting all but the plainly incompetent

of those who knowingly violated the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citation and

internal quotations omitted). The key inquiry in determining whether an officer is entitled to

qualified immunity is whether he or she has “fair warning” that the conduct was unconstitutional. 

Hope v. Pelzer, 536 U.S. 730, 739–40 (2002). To determine whether the doctrine of qualified

immunity applies to an individual defendant, the court must decide whether a plaintiff has shown

a constitutional or statutory right has been violated and whether the right at issue was “clearly

established” at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). 

The individually named Defendants are entitled to qualified immunity under Saucier’s first

prong because, as explained supra in Part III.A, they violated no constitutional right. 

The individual Defendants are likewise qualifiedly immune under the second prong of

Saucier.

The clearly established inquiry “must be undertaken in the light of the specific context of the

case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2009). Officials may

be held liable only for violation of a right the “contours [of which are] sufficiently clear [so] that a

reasonable official would understand that what he is doing violates that right.” Id. at 202. Therefore,

“[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether

it would be clear to a reasonable [official] that his conduct was unlawful in the situation he

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confronted.” Id. The law need not necessarily be a “precise formulation of the standard.” Id. 

Rather, to be clearly established, “various courts [must] have agreed that certain conduct is a

constitutional violation under facts not distinguishable in a fair way from the facts presented in the

case at hand.” Id. With respect to qualified immunity in the specific context of probable cause, the

Supreme Court considers “the fact that a neutral magistrate has issued a warrant[] the clearest

indication that the officers acted in an objectively reasonable manner,” noting immunity in such

situations is lost only “when it is obvious that no reasonably competent officer would have

concluded that a warrant should issue.” Messerschmidt v. Millender, 565 U.S. 535, 546–47 (2012);

see e.g., Torres v. Goddard, 194 F. Supp. 3d 886, 893, 895 (D. Ariz. 2016) (granting qualified

immunity to defendants acting pursuant to seizure warrants because “even assuming that probable

cause [supporting the warrants] was insufficient,” there was “no evidence that the [supporting]

affidavits and materials were so lacking in indicia of probable cause as to render Defendants’ official

belief in probable cause entirely unreasonable.”)

Applied to the facts of this case, the question here is whether it would have been sufficiently

clear to a reasonable official that arresting, investigating, and assisting in prosecuting Leonetti was

unlawful. The answer depends on whether a reasonable official would have understood that he or

she acted without probable cause or, more specifically, whether he or she would have concluded that

the arrest warrant was so lacking in indicia of probable cause it should never have been issued. 

Defendants in fact had sufficient probable cause to justify their actions throughout Leonetti’s

arrests, investigation, and prosecution. Thus, the lesser-included standard of whether it would have

been objectively clear to them that they acted with probable cause is necessarily met. But even if

probable cause was at any point lacking, as the court’s analysis in Part II makes clear, no reasonable

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officer would have thought his or her conduct was unlawful based on the totality of facts that

presented here — facts that both a neutral judge and a grand jury concluded supported probable

cause. Furthermore, as in Messerschmidt, here it is hardly obvious that no reasonably competent

officer would have concluded that neither the arrest warrant nor grand jury indictment should have

issued. Therefore, the individually named Defendants in this action are entitled to qualified

immunity from Leonetti’s § 1983 claim. 

III. State Law Claims. 

Leonetti also asserts claims for false arrest, malicious prosecution, and loss of consortium

under Oregon law. 

A. Individual Liability Under the Oregon Tort Claims Act. 

The individually named Defendants invoke ORS 30.265 to assert they are immune from tort

liability under state law arguing that, under the OTCA, Clackamas County, as a public body, is the

only proper defendant. Defendants do not specify to which portion of ORS 30.265 they refer, but

regardless, it appears this argument relies on outdated law. 

Before 2011, the only remedy available for torts committed by officers, employees, or agents

of a public body in Oregon within the scope of their employment was an action against the public

body. OR.REV. STAT. 30.265(1) (2009). However, the Oregon Supreme Court in Clarke v. OHSU,

343 Or. 581, 585–86, 610 (2007), held that the law violated Oregon’s constitution in circumstances

in which a public body would be “substituted” as a proper defendant, in turn “capping” damages

under another OTCA provision that imposes limits on damages recoverable from public bodies,

thereby denying adequate recourse for plaintiffs incurring damages far beyond the public body cap. 

Accordingly, Oregon lawmakers revised ORS 30.265 to allow plaintiffs to bring a tort claim against

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individual defendants if damages exceeded certain specifically enumerated amounts. See 2011 Or.

Laws. Ch. 270 § 1; OR. REV. STAT. 30.326(3)–(4); 30.271–73 (2012). 

Oregon Revised Statute 30.265 currently provides: 

(3) If an action under ORS 30.260 to 30.300 alleges damages in an amount equal to

or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the sole

cause of action for a tort committed by officers, employees or agents of a public body

acting within the scope of their employment or duties . . . is an action against the

public body. If an action is filed against an officer, employee or agent of a public

body, and the plaintiff alleges damages in an amount equal to or less than the

damages allowed under ORS 30.271, 30.272 or 30.273, the court upon motion shall

substitute the public body as the defendant . . . .

(4) If an action under ORS 30.260 to 30.300 alleges damages in an amount greater

than the damages allowed under ORS 30.271, 30.272 or 30.273, the action may be

brought and maintained against an officer, employee or agent of a public body,

whether or not the public body is also named as a defendant. An action brought

under this subsection is subject to the limitations on damages imposed under ORS

30.271, 30.272 or 30.273, and the total combined amount recovered in the action may

not exceed those limitations for a single accident or occurrence without regard to the

number or types of defendants named in the action.

OR. REV. STAT. 30.265(3)–(4) (emphasis added). Oregon Revised Statutes 30.271, 30.272 and

30.273 impose limits on tort damages recoverable from the state and local public bodies for

“personal injury and death” and “property damage or destruction,” adjusted annually for inflation. 

Therefore, when a plaintiff asserts a claim against both a public body and employee of that

public body, and the record supports a damage claim exceeding the OTCA cap for the public body,

the plaintiff should be allowed to proceed against the individual defendant to avoid the state

constitutional violation articulated in Clarke. See Johnson v. Gibson, 918 F. Supp. 2d 1075, 1081

(D. Or. 2013), vacated and remanded on other grounds, 652 F. App’x 565 (9th Cir. 2016)

(summarizing the aforementioned framework and, accordingly, denying city-employee defendants’

motion for substitution); see also Kramer v. S. Oregon Univ., No. 1:13-CV-00340-CL, 2013 WL

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4782154, at *6 (D. Or. Sept. 5, 2013) (“Under the [OTCA] an officer . . . of a public body may be

held personally liable only when the requested prayer for relief exceeds the damages cap allowed

under ORS 30.271, 30.272 or 30.273. In this case, the requested prayer for relief does exceed the

damages cap, and the defendants have conceded that Cullinan is therefore a properly named

defendant.”); Clardy v. Jones, No. 2:15-CV-01241-CL, 2017 WL 1528720, at *2, n.1 (D. Or. Apr.

23, 2017) (noting ORS 30.265(4)’s new rule and stating “[t]he statutory cap for a single claimant

bringing a cause of action between July 1, 2015 and July 1, 2016 is $2,048,300. See O.R.S.

30.271(4) and [the applicable table of liability limits available online.] Plaintiff’s complaint alleges

damages in excess of this amount.”). 

Based on Leonetti’s complaint, his malicious prosecution action arose at the latest in

February 2015, when his case was dismissed. The statutory cap for a cause of action alleging

personal injury against a local public body between July 1, 2014 and July 1, 2015 for a single

claimant is $666,700, and $1,333,300 for multiple claimants. See “Oregon Tort Claims Act Liability

Limits,” Oregon Judicial Branch, available at http://www.courts.oregon.gov/Documents/Table_of

Liability_Limits.pdf (last accessed, February 16, 2018). Leonetti, personally and on behalf of Holly

Leonetti’s estate, alleges damages not to exceed $ 7,500,000. (Compl. ¶ 24.) Leonetti’s complaint

does not specify what portion of those damages was incurred as a result of his alleged malicious

prosecution. Still, because the damages alleged substantially exceed the applicable liability limit,

under ORS 30.265(4) and Clarke and its progeny, procedurally, Leonetti likely should be allowed

to proceed against individual Defendants Bray, Shipley, Kollias, and Pierce. 

B. False Arrest Claim.

As discussed supra in Part I.A, Leonetti’s state false arrest claim is time barred under the

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two-year statute of limitations imposed by the OTCA. However, even if it were timely, on this

record the claim would fail on the merits because Leonetti has not created a question of fact. 

Under Oregon law, the “gravamen of the [false arrest] claim is the unlawful imposition of

restraint on another’s freedom of movement.” Hiber v. Creditors Collection Service, 154 Or. App.

408, 413 (1998) (internal quotation omitted). A false arrest claim consists of four elements: (1) the

defendant must confine the plaintiff; (2) the defendant must intend the act that causes confinement;

(3) the plaintiff must be aware of the confinement; and (4) the confinement must be unlawful. Id. 

And, in Oregon, too, “the existence of probable cause [] render[s] an arrest lawful as a matter of

law.” Miller v. Columbia Cty., 282 Or. App. 348, 355 (2016), review denied, 361 Or. 238 (2017). 

Thus, “byrendering an arrest lawful, the existence of probable cause for the arrest necessarilydefeats

a claim of false arrest.” Id. (citing Le Roy v. Witt, 12 Or. App. 629, 631, 508 P.2d 453 (1973)). 

Again, it is the trial court’s duty to determine, as a matter of law, whether a defendant arrested with

probable cause. Id. (citing Gustafson, 269 Or. at 358 (“[I]t is the court’s function, not the jury’s

function, to determine the issue of probable cause.”)). 

Because, as explained supra in Part II, the court determines detectives had probable cause

to arrest Leonetti, both on June 10 and June 12, 2013, under Miller, the arrests were lawful as a

matter of law and Leonetti’s false arrest claim necessarily fails. 

C. Malicious Prosecution Claim.

To recover for the tort of malicious prosecution in Oregon, a plaintiff must prove: (1) the

institution or continuation of the original criminal proceedings; (2) by or at the insistence of the

defendant; (3) termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the

proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the

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prosecution.” Rose v. Whitbeck, 277 Or. 791, 795, reh’g denied and opinion modified, 278 Or. 463

(1977) . Malice may be necessarily inferred when a prosecution is initiated without probable cause. 

Ledford v. Gutoski, 121 Or. App. 226, 232 (1993), aff’d, 319 Or. 397 (1994) (“instituting a criminal

proceeding against another for a purpose other than that of achieving justice is, by its nature, an act

from which the intent to do harm must necessarily be inferred.”) 

Thus, proof of probable cause is also complete defense to an action for malicious

prosecution. Gustafson, 269 Or. at 356. Voluntary dismissal of a charge “does not automatically

create a presumption that [it] was filed without probable cause.” Roop v. Parker Nw. Paving, Co.,

194 Or. App. 219, 239 (2004); accord. Shoemaker, 220 Or. at 578. Further, in Oregon, “[a]ctions

for malicious prosecution are not favored by the law because public policy requires that those who

have good reason to believe that the law has been violated should be encouraged to bring that

information to the attention of the law enforcement authorities, to the end that those guilty of crime

may be brought to trial and punished.” Lampos, 270 Or. at 266 (citing Hees v. Oregon Baking Co.,

31 Or. 503, 513 (1897), and Nally v. Richmond, 105 Or. 462, 466 (1922)). Accordingly, “limitations

have been placed upon such actions, including the requirement that the plaintiff must sustain the

burden of proof that the defendant did not have probable cause to initiate the criminal prosecution.” 

Id. (citing Shoemaker, 220 Or. at 579 and Prosser, LAW OF TORTS 841, § 119 (4th ed 1971)).

Defendants first argue that because it was District Attorney Regan who made the specific

charging decision against Leonetti, the defendant CCSO detectives and sergeants cannot be held

liable for malicious prosecution.

This argument fails. It is well established under both Oregon and federal law that malicious

prosecution actions are not limited to suits against only prosecutors, but rather may be brought

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against any person who has wrongfully initiated or caused charges to be filed. Hryciuk, 213 Or. at

561 (holding “if the defendant has knowledge of facts which would exonerate the accused, he cannot

justify his proceeding upon the criminal charge in an action for malicious prosecution” after

defendant procured his son to testify falsely against the plaintiff); Rogers v. Hill, 281 Or. 491, 500

(1978) (en banc) (“An active part in continuing an unfounded criminal proceeding is sufficient for

this tort”); see e.g., Gumm v. Heider, 220 Or. 5, 17 (1960) (malicious prosecution action against

party to a contract who “institut[ed] the prosecution” of the plaintiff); Rose, 277 Or. at 795

(malicious prosecution action brought by plaintiff against her brother- and sister-in-law). To the

extent Defendants also assert this defense against Leonetti’s § 1983 claim, it likewise fails. 

However, Defendants are not liable for malicious prosecution under state law because they

acted with probable cause to investigate and prosecute Leonetti for the crimes charged. Here too,

Defendants’ probable cause, set forth supra in Part II.D, under Gustafson serves as a complete

defense to Leonetti’s malicious prosecution claim. As explained in Roop, that the charges were later

voluntarily dismissed does not necessarily imply a lack of probable cause. 

Leonetti argues summary judgment as to his malicious prosecution claim is inappropriate

because the question of whether defendants acted maliciously is one for the jury. Leonetti is correct

that “[m]alice, unlike probable cause, is a question for the jury.” Gustafson, 269 Or. at 366. Malice

is necessary, but not alone sufficient to prove malicious prosecution; because probable cause exists

as a complete defense to such a claim, proof of malice is irrelevant if a defendant can prove he or

she acted with probable cause. Because Leonetti fails to carry his burden to present facts sufficient

to create a question that no probable cause existed, the jury question of malice does not preclude

judgment on his malicious prosecution. That is, even if Leonetti can prove any of the defendants

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acted with malice, because they likewise acted with probable cause, the claim fails as a matter of

law.

Leonetti also cites Hoefer v. Cope, 40 Or. App. 275, 281 (1979), for the proposition that a

defendant’s failure to “inquire []thoroughly into the facts” of an alleged crime raises a jury question

aboutmalice,” rendering summaryjudgment inappropriate. That interpretation misconstruesHoefer.

Hoefer entered a hardware store to buy a socket extension. Id. at 277. He put the small

extension in his pocket to avoid it falling through the cracks of his shopping cart, but forgot to pay

the $2.15 for the extension in his pocket when paying for other items at the checkout. Id. at 277–

78. When a store security guard ordered him to sign a confession to shoplifting the extension,

Hoefer tried to explain the mistake, but the guard refused the explanation and notified the police. 

Id. at 278. Hoefer was later acquitted of shoplifting charges and sued the guard for malicious

prosecution, arguing he lacked probable cause to call the police. Id. at 279. The trial court granted

summary judgment for the guard, but the Oregon Court of Appeals reversed, holding summary

judgment was inappropriate because “a reasonable person . . . would have given fair consideration

to the possibility of a mistake and would have made further inquiries,” and the “circumstances

suggest[ed] a reasonable possibility of an innocent explanation for the failure to pay[;]” therefore,

“the institution of criminal proceedings without [further] investigation . . . c[ould ]not be held to be

with probable cause as a matter of law.” Id. at 281–82 (internal quotation omitted). 

Thus, summary judgment was precluded in Hoefer not by a reasonable possibility of malice,

but by the possible absence of probable cause. Again, if probable cause exists as a matter of law,

then summary judgment is proper, regardless of whether a defendant acted with malice. See Mathre

v. Multnomah Cty., 35 Or. App. 75, 79 (1978) (affirming summary judgment on malicious

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prosecution claim where probable cause existed as matter of law). As Leonetti fails to sustain the

burden of proof that the defendants lacked probable cause to initiate and continue the criminal

prosecution against him, his malicious prosecution claim fails. And because there is no underlying

claim, Clackamas County is likewise not liable for malicious prosecution under Oregon law.

D. Loss of Consortium Claim.

Finally, Defendants move for summary judgment as to the loss of consortium claim brought

on behalf of Holly Leonetti’s estate. 

Defendants assert Holly Leonetti cannot recover for loss of consortium because Joseph

Leonetti suffered no physical injury, citing Panasewich v. Dayton Hudson Corp., No.

CV-98-134-ST, 1999 WL 446884, at *11 (D. Or. Apr. 28, 1999). Leonetti responds, and the court

agrees, that Oregon law in this area remains unsettled. 

 Panasewich was repeatedly verbally sexually harassed, but never physically touched, by a

male coworker, which led to marital difficulties with her husband, who then moved out of the

couple’s home. Panasewich, 1999 WL 446884, at *1–*2. Panasewich sued the coworker and the

companyfor, among other claims, negligent infliction of emotional distress, and her husband brought

a claim for loss of consortium. Id. at *4, *7, *11. Applying Oregon law, the court rejected the

negligent infliction of emotional distress claim because the tort requires a plaintiff show physical

harm or injury to a legally protected interest, for example the negligent removal of a deceased

spouse’s remains; not “solely psychic or emotional injury,” like the verbal harassment Panasewich

alleged. Id. at *9. The court cited Shoemaker v. Management Recruiters Int’l, Inc., 125 Or. App.

568, 865 P.2d 1331 (1993), to note “the physical injury requirements for negligent infliction of

emotional distress and loss of consortium are very similar.” Id. Hence, the court inferred that

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because a loss of consortium claim “is based on injuries peculiar to a plaintiff that were the

consequence of tortious injury suffered by the plaintiff’s spouse,” the husband’s claim necessarily

failed for the same reasons as his wife’s negligent infliction of emotional distress claim. Id. at *11

(“[F]or the reasons noted in the analysis of the negligent infliction of emotional distress claim, the

physical injury alleged in this case is insufficient for a loss of consortium claim under Shoemaker.). 

Despite the inference drawn in Panasewich, the suggestion that Shoemaker established a

bright-line physical-injury requirement for loss of consortium in Oregon may be overstated. In fact,

the Oregon Court of Appeals in Shoemakerrecognized that “[w]hether such an allegation is required

to state a claim for loss of consortium” was, in 1993, “a question of first impression in Oregon.” 

Shoemaker, 125 Or. App. at 573. But the Shoemaker court did not answer that question, because the

plaintiff there had alleged physical injury sufficient to recover for negligent infliction of emotional

distress. Id. And it does not appear the Oregon Appellate Courts have ever revisited the issue. As

such, this court declines to adopt the interpretation of Oregon law Defendants suggest. 

However, because all of Joseph Leonetti’s claims against the Defendants fail, so too does

Holly Leonetti’s derivative loss of consortium claim.

It is clear under Oregon law that a spouse’s loss of consortium claim “is measured by and

subject to any defenses available in [the other spouse]’s action for redress of the same harm.” Ross

v. Cuthbert, 239 Or. 429, 432 (1964) (citing generally Ellis v. Fallert 209 Or. 406 (1957); Smith v.

Smith, 205 Or. 286 (1955); Kinney v. Southern Pacific Co. 232 Or. 322 (1962)). This principle is

true whether the defense is substantive; id. (injured spouse’s contributory negligence was valid

defense to other spouse’s loss of consortium claim), Lakin v. Senco Prod., Inc., 144 Or. App. 52,

81(1996), aff’d, 329 Or. 62 (1999), opinion clarified, 329 Or. 369 (1999) (same); or procedural;

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Bibeau v. Pac. Nw. Research Found., Inc., 980 F. Supp. 349, 358 (D. Or. 1997), rev’d on other

grounds, 188 F.3d 1105 (9th Cir. 1999) (rejecting spouse’s loss of consortium claim when other

spouse’s claims were barred by statute of limitations). 

As explained above, Defendants are entitled to judgment as a matter of law on all of Joseph

Leonetti’s primary claims. Although the court is sympathetic to the situation that befell Holly

Leonetti, because the same defenses apply to and bar her loss of consortium claim, summary

judgment is likewise appropriate as to that claim. 

Based on the record before the court, there is no genuine issue as to any material fact.

Accordingly, Defendants are entitled to judgment as a matter of law on all claims.

Conclusion

For the reasons stated above, Defendants’ motion for summary judgment, ECF No. 15,

should be GRANTED.

Scheduling Order

The Findings and Recommendation will be referred to a district judge. Objections, if any,

are due March 5, 2018. If no objections are filed, then the Findings and Recommendation will go

under advisement on that date. 

/ / / / /

/ / / / /

/ / / / /

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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 16th day of February, 2018.

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge

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