MARTIE DAVIDSON, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

Plaintiff, 

6:15-cv-52-TC 

FINDINGS AND RECOMMENDATION 

v. 

DESCHUTES COUNTY, JOHN and CAREN 

BURTON, CHRIS KABER, and JENNIFER 

GASPARD, 

Defendants. 

COFFIN, Magistrate Judge: 

Plaintiff, Martie Davidson bring this action asserting claims for malicious prosecution, 

libel/slander/defamation, and false arrest under federal and state law. Plaintiff also seeks a 

declaration that a policy of adding charges to indictments without probable cause is unconstitutional. 

Finally, plaintiff asserts a claim for punitive damages. 

ALLEGATIONS 

Defendants John Burton and Caren Burton left their dog Zoe at Deschutes Pet Lodge from 

July 24, 2009 until July 27, 2009. Plaintiff worked at the Pet Lodge. 

Page 1 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 1 of 15
On July 28, 2009, the Burtons took Zoe to the vet, but it does not appear that the vet 

suspected broken ribs at that time. On August 1, 2009, the Burtons took Zoe to an animal emergency 

center where x-rays revealed fractures of the eighth and ninth ribs and possible fracture of the 

seventh on the dog's left side . On August 3, 2009, Dr. Jodi Kettering determined that the injuries 

were consistent with being hit by a motor vehicle. 

Zoe's conditioned worsened and on August 5, 2009, Kettering referred Zoe to Northwest 

Veterinary Specialists where x -rays revealed fractures of the sixth through eleventh ribs on the left 

side. Subsequent x-rays on August 6 and September 9, 2009, confirmed the diagnosis. 

The Burtons accused the Deschutes Pet Lodge of causing the injuries to Zoe and allegedly 

embarked on a publicity campaign in an effort to get the County Sheriff to arrest someone at the 

Lodge. Defendant Deschutes County Sheriffs deputy Jennifer Gaspard interviewed a lodge 

employee who told her that he had seen plaintiff acting upset with Zoe by pulling on her leash. 

Gaspard then focused her investigation on plaintiff asking her to submit to a polygraph exam. 

Defendant Oregon State Police Officer Chris Kaber performed the exam on October 29,2009 

and, along with Gaspard, allegedly coerced plaintiff into accepting responsibility for Zoe's injuries. 

Plaintiff admitted that a kennel door might have bumped Zoe when plaintiff brought her back from 

the exercise yard and Gaspard and Kaber allegedly coerced plaintiff into believing such "possible 

bump" was in fact the cause of Zoe's injuries. Gaspard arrested plaintiff on a charge of first degree 

animal abuse allegedly without probable cause. 

Plaintiff alleges that Gaspard and Kaber either intentionally or recklessly gave false 

information to the Deschutes County District Attorney that plaintiff had confessed to causing Zoe's 

injuries for the sole purpose of persuading the District Attorney to prosecute plaintiff for crimes they 

Page 2 -FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 2 of 15
knew she did not commit. 

Plaintiff alleges that the District Attorney's office had a policy of deliberately charging more 

serious crimes than warranted to force a plea and when plaintiff did not plea to the original charges, 

the District Attorney increased the charges to aggravated animal abuse in an attempt to force plaintiff 

to forego her right to trial. 

The Burtons continued their public campaign against plaintiff during the criminal prosecution 

allegedly libeling and slandering plaintiff. 

By May 26, 2010, x -rays revealed Zoe had eight fractured ribs on her left side and three on 

her right. Zoe died around June 1, 2010 and nearly all of Zoe's ribs had fractures by that point. 

Plaintiff alleges no rational person could believe Zoe's injuries were caused by the actions to which 

plaintiff admitted. 

After a four day trial, a jury acquitted plaintiff of all charges on January 11, 2013. Plaintiff 

alleges that the arrest and subsequent prosecution caused severe emotional distress as well as public 

humiliation. Plaintiff also alleges that the charges resulted in suspension from her job without pay. 

Ultimately, plaintiff alleges she had to leave central Oregon to find employment and peace of mind. 

Plaintiff alleges three malicious prosecution claims, pursuant to 42 U.S.C. § 1983, against 

Deschutes County assetiing lack of probable cause to support the prosecution and/ or that subsequent 

information dissipated probable cause. Plaintiff also seeks a declaratory judgment that Deschutes 

County's prosecution via added charges, unsupported by probable cause, to force waiver of a right 

to trial, is unconstitutional. Plaintiff also seeks punitive damages against Deschutes County. 

Plaintiff also alleges claims for malicious prosecution, and libel/slander/defamation against 

:y 

John and Caren Bmion. Additionally, plaintiff alleges claims for violation of her Fourth 

Page 3 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 3 of 15
Amendment rights and malicious prosecution against Chris Kaber and Jennifer Gaspard. Finally, 

plaintiff alleges a false arrest claim against Chris Kaber. 

Defendants John and Caren Burton seek summary judgment as to ths claims against them. 

Defendant Chris Kaber moves to dismiss and defendants Deschutes County and Jennifer Gaspard 

also move to dismiss. 

DISCUSSION 

A. John and Caren Burton's Motion for Summary Judgment (#10) 

Defendants John and Caren Burton seek summary judgment arguing that plaintiff previously 

released the claims alleged against them. The Burton defendants also allege that the statute of 

limitations has run on the libel/defamation/slander claim. 

On May 24, 2010, the Burtons instituted a civil action against plaintiff and Deschutes Pet 

Lodge in Deschutes County alleging conversion and intentional infliction of emotional distress 

related to the injuries to and death of their dog Zoe. 

On March 20, 2013, after plaintiffs acquittal and during the civil litigation with the Burtons, 

plaintiffs criminal defense attorney wrote to the Burtons requesting they delete any allegation, on 

their website, that plaintiff was responsible for the death of their dog. Plaintiffs criminal attorney 

warned that if they did not cease and desist, plaintiff would have no recourse but to bring an action 

for libel, slander, and defamation. 

On July 19, 2013, a judgment of dismissal without prejudice was entered in the civil case. 

On July 22, 2013, the parties in the civil case submitted, through counsel, a stipulation and order of 

dismissal with prejudice. The stipulation recited that all claims asserted or which could have be 

Page 4 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 4 of 15
asserted by the parties in the civil case, have been finally and forever resolved with prejudice and 

without costs. The stipulation is signed by counsel for the plaintiffs and counsel for the defendants, 

Deschutes Pet Lodge and plaintiff. It does not appear that the judge in the civil case signed the 

stipulation. 

Plaintiffs claim for malicious prosecution accrued when the prosecution was terminated. 

See, e.g., Whitev. Pacific Telephone & Telegraph Co., 168 Or. 371,374 (1942) (citing Restatement, 

Torts, section 898). In addition, plaintiff had already asserted that she would institute claims for 

libel/defamation/slander related to the Burton's publicity campaign, the facts of which were the 

primary basis for the Burton's civil claims in Deschutes County. 

Even though the stipulation does not appear to have been entered by the court as a judgment, 

the court should still treat it as a contract. A release is a contract that is subject to the ordinary rules 

of contract construction. Ristau v. Wescold, Inc., 318 Or. 383, 387 (1994). Disputes over the 

meaning of a contract may be disposed of by summary judgment only if the contract's terms are 

unambiguous. Biomass One, L.P. v. S-P Construction, 120 Or.App. 194,200, 852 P.2d 847 (1993). 

Whether a contract is ambiguous is a question oflaw. Yogman v. Parrott, 325 Or. 358,361 (1997). 

A contract is unambiguous if its meaning is so clear as to preclude doubt by a reasonable person. 

Deerfield Commodities v. Nerco, Inc., 72 Or.App. 305, 317 (1985). Plaintiff does not appear to 

dispute that the broad language of release in the stipulation unambiguously released each party to 

any claims that could have been brought in the underlying civil case brought by the Burtons. Indeed, 

the state law claims for malicious prosecution and slander in this case share much of the underlying 

operative facts of that case and, even though the release does not include "known or unknown 

language," no reasonable fact finder could conclude that plaintiff was unaware of the basis for the 

Page 5 -FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 5 of 15
claims at the time the parties entered into the stipulation. 

Plaintiff does argue that she did not authorize her counsel to enter into the stipulation on her 

behalf, but presents no evidence to support such a claim beyond her mere denial. The stipulation 

includes the signature of her attorney, Christine Tavares, and it explicitly notes Tavares' capacity as 

attorney for Martie Davidson. Plaintiff provides no evidence that she did not receive a copy of the 

court filing and why she did not seek to have it stricken if she did not authorize it. 1 Plaintiff cannot 

derive the benefit of the dismissal of the case against her with prejudice and without cost while at 

the same time retaining her right to sue based on facts underlying the prior litigation. 

Releases are a species of settlement agreement and, as such, are favored by the law. See 

Walcuttv. Inform Graphics, Inc., 109 Or.App. 148, 151 (1991). Thus, an otherwise "unimpeachable" 

release agreement will not be set aside merely because it was improvident. See Wheeler v. White 

Rock Bottling Co., 229 Or. 360, 367 (1961). However, under limited circumstances, enforcement 

of a release may be barred if the release was the product of misrepresentation or unconscionable 

conduct. See Raymond v. Feldmann, 120 Or.App. 452, 455 (1993). For instance, enforcement of 

a release may be barred where it was ( 1) unilaterally coerced or imposed rather than resulting from 

arm's-length negotiations between the parties; (2) not the result of independent representation; or (3) 

was based on a misrepresentation of the nature, effect, or scope of the agreement, or a 

misrepresentation of the value or merit of an asserted legal claim. See, e.g., Whitehead v. 

Montgomery Ward & Co., Inc., 194 Or. 106, (1952) (release agreement is invalid where there was 

a great disparity between amount paid to the plaintiff and the damages actually sustained, the 

1

Plaintiff merely states, "I did not authorize my attorney in the civil case to release any 

claims against the Burtons. At no time was I offered any consideration for release of my claims." 

Declaration of Plaintiff (#13) at~ 5. 

Page 6- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 6 of 15
defendant misrepresented that the writing was a receipt and not a release, the plaintiff did not have 

independent legal advice, and the plaintiff could not read agreement because he did not have his 

glasses); Peluck v. Pac. Machine & Blacksmith Co., 134 Or. 171, 178 (1930) (release agreement 

should be subject to close scrutiny where the parties were not dealing at arm's length, the plaintiff 

did not have the benefit of independent legal advice, and the plaintiff was in poor mental and 

physical condition at the time release was signed); Kim v. Allstate Ins. Co., 102 Or.App. 529 (1990) 

(material issues of fact existed precluding summary judgment as to whether, where the parties were 

not on equal footing, the plaintiff adduced evidence that she was induced to sign the release on the 

basis of misrepresentations and material omissions made by the defendant regarding the value and 

potential success of the plaintiffs legal claim). Here, plaintiff merely complains that she believe she 

did not receive consideration, but as noted above, she achieved a similar release in return as well as 

dismissal of the pending claim against her with prejudice. The court should grant summary 

judgment as to all claims she could have brought in the civil case brought by the Burtons. 

However, plaintiff does assert that the libel/slander/defamation is ongoing. The website 

maintained by the Burtons, http://www.alwayssafezoe.com/Zoe s Bill.html, still contains an article 

that was published in the Bend Bulletin on June 6, 2010 which states that the Burtons sued the 

Deschutes Pet Lodge and plaintiff and said that 

an employee of the kennel, Martie Davidson, intentionally hit Zoe with a metal gate, 

leaving her with broken ribs and other internal injuries. When they came to pick up 

the dog, the Burtoris were not told that she had suffered any injuries and discovered 

the problem days later, when they took her to an emergency veterinary hospital. 

After an investigation by the Deschutes County Sheriff's Office, Davidson, 40, was 

arrested and charged with one count of first-degree animal abuse. The case is 

scheduled to go to trial in August. 

Page 7 -FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 7 of 15
The lawsuit also names the Deschutes Pet Lodge's owner, Maria George, and her 

company, Dabaka LLC, as defendants. The Burtons argue that George was negligent 

because she allowed Davidson to come in contact with the dog and did not take 

measures to prevent harm to animals staying at the facility. 

[The Burtons's counsel said] "It's an outrageous act, contemptible conduct by people 

that are supposed to be responsible for the dog," 

"There is a direct causal link between what Davidson did and the death of this dog," 

he said. "There wasn't anything in between." 

Interpreting the release as a bar to any future acts of defamation would be unreasonable. 

Indeed, given the lack of "known and unknown" language in the release, the only reasonable 

interpretation, given the strict interpretations courts give releases, is that only actionable conduct 

occurring as of the date of the stipulation has been released from further litigation. In Schenck v. 

Oregon Television, Inc., 146 Or.App. 430,435,934 P.2d 480 (1997), the Oregon Court of Appeals 

held that 

The gravamen of the tort of defamation is the injury to the plaintiffs reputation 

caused by a statement communicated to someone other than to the plaintiff. Shirley 

v. Freunscht, 303 Or. 234, 238, 735 P.2d 600 (1987) (citing to Lowe v. Brown, 114 

Or. 426,433-34,233 P. 272,235 P. 395 (1925); State v. Mason, 26 Or. 273,277-78, 

3 8 P. 13 0 (1894 ), and Prosser and Keeton, The Law of Torts 771, § 111 (5th ed 

1984) ). Under this definition, each publication is a discrete tort, because a new injury 

could occur upon each publication. 

Plaintiffs complaint can be fairly read to allege that the continued publication of the allegedly 

defamatory statements is causing harm and each time the site is accessed and read, there is a discrete 

publication to a third party. Accordingly, the release does not bar any cause of action for libel or 

defamation occurring after the date of the release. 

However, federal courts are courts oflimited jurisdiction and only have jurisdiction over state 

Page 8 -FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 8 of 15
law claims to the extent that such claims are "related to claims in the action within such original 

jurisdiction that they form part of the same case or controversy under Article III of the United States 

Constitution." 28 U.S.C. § 1367(a). A state law claim is part of the same case or controversy within 

the meaning of28 U.S.C. § 1367 when it shares a common nucleus of operative fact with a federal 

claim and the state and federal claim would normally be tried together. Bahram pour v. Lampert, 

356 F.3d 969, 978 (9th Cir. 2004). 

Although the claim of continuing libel/defamation arises out of the same type of statements 

the Burtons used in allegedly compelling Deschutes County to undertake a malicious prosecution 

in violation of plaintiffs constitutional rights, the claim does not share a common nucleus of 

operative fact with the allegedly unconstitutional component of the prosecution. The libel claim is 

based on continued false assertions of plaintiff injuring their dog, while the constitutional claims 

involve accusations of lack of probable cause and impingement of the right to trial by the state 

actors. None of the facts supporting the federal claims against the state actors are relevant to the 

remaining state law claim against the Burtons. Accordingly, the libel/slander/defamation claim 

against the Burtons should be dismissed. 

In the alternative, assuming the court has jurisdiction, the libel/slander/defamation claim 

should be dismissed as time-barred. An action for defamation must be commenced within one year. 

ORS § 12.120. Plaintiff instituted this action on January 11,2015, and, as noted, the website hosted 

by the Burtons continues to publish allegedly defamatory material. The issues thus becomes whether 

the so-called single publication rule applies. It is not clear if Oregon follows the single publication 

2

In a 1986 district court case, Judge Frye noted that the Oregon courts have not adopted 

either the single publication rule or the multiple publication rule. She further stated that, 

Page 9- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 9 of 15
Under a multiple publication rule, each repetition of a libel would create a new cause of 

action. See, e.g., Churchill v. State, 378 N.J. Super. 471, 876 A.2d 311 (App. Div. 2005). Under 

such rule, each time a libelous article is brought to the attention of a third person, a new publication 

has occurred and each publication is a separate actionable tort. See, e.g., Lewis v. Reader's Digest 

Ass'n, Inc., 162 Mont. 401, 512 P.2d 702 (1973). However, this rule has been modified by the fairly 

general recognition of the single publication rule, under which a single issue or single edition of a 

periodical or book constitutes a single publication. See, e.g., McGuiness v. Motor Trend Magazine, 

129 Cal. App. 3d 59, 180 Cal. Rptr. 784 (2d Dist. 1982). Generally, under the single publication 

rule, any single integrated publication, such as one edition of a newspaper, book, or magazine, or one 

broadcast, is treated as a unit, giving rise to only one cause of action, even if sold in multiple copies, 

and in numerous places, at various times. See, e.g., Van Buskirk v. The New York Times Co., 325 

F.3d 87 (2d Cir. 2003). However, it has been held that copies or reprints of a libel, whether in the 

same periodical which originally published it or in another periodical, did not constitute a single 

publication within the meaning of the single publication rule, and thus each copy or reprint of the 

alleged defamation gave rise to a new cause of action. See, e.g., Graham v. Today's Spirit, 503 Pa. 

52, 468 A.2d 454, 41 A.L.R.4th 535 (1983) (holding that, upon evidence that two allegedly 

defamatory articles were printed and circulated in two separate newspapers published by the same 

defendant on the same date, that the fact that the articles were essentially identical did not mean that 

there had been a single publication). The single publication rule can apply to internet publishing. 

however, many more than a majority of the states now follow the single publication rule. Keeton 

v. Hustler Magazine, Inc., 465 U.S. 770, n. 8 (1984). Thus, she applied the single publication rule 

and applied a limitations period beginning on the date of the first publication of the alleged libel. 

I have been unable to find any subsequent Oregon case law suggesting that Oregon follows or 

does not follow the single publication rule. 

Page 10- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 10 of 15
Ji&, Van Buskirk, 325 F3d at 90. 

The Ninth Circuit's application of the single publication rule with respect to a Privacy Act 

claim is instructive: 

Courts that have considered the issue of when Internet-based information is 

properly considered "published" have done so largely in the context of state 

defamation suits. These courts have generally concluded that the posting of 

information on the web should be treated in the same manner as the publication of 

traditional media (i.e., books, newspapers, magazines, and radio and television 

broadcasts), that is, that traditional media's "single publication rule" should apply to 

postings on the Internet. [footnote omitted] Under the single publication rule, "any 

one edition of a book or newspaper, or any one radio or television broadcast, 

exhibition of a motion picture or similar aggregate communication is a single 

publication." Restatement (Second) of Torts§ 577 A(3) (1977). Under this rule, the 

aggregate communication can give rise to only one cause of action in the jurisdiction 

where the dissemination occurred, and result in only one statute oflimitations period 

that runs from the point at which the original dissemination occurred. Zuck v. 

Interstate Publ'g Corp., 317 F.2d 727,729-30 (2d Cir.1963). 

Courts that have extended the single publication rule to Internet publishing 

have done so on the premise that published web content is functionally identical to 

published traditional print media and, accordingly, Internet publication should be 

considered "published" in the same manner as is a print edition. [footnote omitted] 

While that premise is not entirely accurate, [footnote omitted] we agree that the 

analogy between Internet and print publication is sufficiently apt to be serviceable. 

Internet publication is a form of"aggregate communication" in that it is intended for 

a broad, public audience, similar to print media. [footnote omitted] In both print and 

Internet publishing, information is generally considered "published" when it is made 

available to the public.[footnote omitted] Once information has been published on 

a website or print media, there is no further act required by the publisher to make the 

information available to the public .... 

In addition to functional similarities between print and Internet publication, 

the same considerations that compel application of the first publication rule to 

traditional forms of aggregate communication are equally compelling in the context 

ofinternet publication. The single publication rule is designed to protect defendants 

from harassment through multiple suits and to reduce the drain of libel cases on 

judicial resources. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 

S.Ct. 1473, 79 L.Ed.2d 790 (1984). Those same considerations present themselves 

in relation to Internet publishing, and militate in favor of applying the single 

publication rule to Internet publication. Given that "[ c ]ommunications posted on 

Web sites may be viewed by thousands, if not millions, over an expansive geographic 

Page 11 -FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 11 of 15
area for an indefinite period of time," allowing Internet publications to be subject to 

a multiple publication rule "would implicate an even greater potential for endless 

retriggering of the statute of limitations, multiplicity of suits and harassment of 

defendants. Inevitably, there would be a serious inhibitory effect on the open, 

pervasive dissemination of information and ideas over the Internet, which is, of 

course, its greatest beneficial promise." Firth, 747 N.Y.S.2d 69, 775 N.E.2d at 466. 

Such concerns have motivated state courts to extend the single publication rule to 

Internet publication,[footnote omitted] and federal courts sitting in diversity have 

done likewise. 

Oja v. U.S. Army Corps ofEngineers, 440 F.3d 1122, 1130-32 (9th Cir. 2006). 

Applying the Ninth Circuit's logic to the alleged libel in this case, the single publication rule 

applies to the article continuously maintained on the Burtons's website. Plaintiff does not provide 

evidence of allegedly libelous or defamatory conduct, after the date of the release, beyond the 

website. Plaintiffs counsel's letter of March 20, 2013, establishes plaintiffs knowledge of that 

alleged defamatory conduct at least as of that date. Plaintiff instituted this action more than one year 

after that date. Accordingly, plaintiffs libel/slander/defamation claim is time-barred. 

The Burtons's motion for summary judgment should be granted. 

B. Defendant Chris Kaber's Motion to Dismiss (#16) 

Defendant Kaber contends the claims against him should be dismissed because plaintiff 

failed to allege them within the applicable statute of limitations, plaintiff failed to sue Kaber in his 

individual capacity under 42 U.S. C. § 1983, and failed to allege compliance with the Oregon Tort 

Claims Act. 

Plaintiff concedes that the false arrest claim pursuant to the Fourth Amendment should be 

dismissed. Plaintiff further concedes her state law claims of false arrest and malicious prosecution 

against Kaber also must be dismissed. Although plaintiff states she "would seek to amend" her 

Page 12- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 12 of 15
claims to allege a federal claim of malicious prosecution against Kaber in his individual capacity. 

Plaintiff has not yet moved to amend and thus the motion to dismiss should be granted without 

prejudice to seek leave to amend. 

C. Defendants Deschutes County's and Jennifer Gaspard's Motion to Dismiss (#18) 

Defendant Deschutes County moves to dismiss the claims against it because it is not 

responsible for the prosecutorial acts ofthe Deschutes County District Attorney's Office. Defendant 

Gaspard moves to dismiss the Fourth Amendment false anest claim and state law false anest claim 

against her as time-baned. In addition, defendant Gaspard asks the court to decline jurisdiction over 

the remaining state law malicious prosecution claim against her. 

Under Oregon law, district attorneys are law officers of the state. Oregon Constitution Article 

VII§ 17; State v. Clark, 291 Or. 231, 245, 630 P.2d 810, cert. denied, 454 U.S. 1084, 102 S.Ct. 640, 

70 L.Ed.2d 619 (1981); State v. Coleman, 131 Or.App. 386,390, 886 P.2d 28, review denied, 320 

Or. 588, 890 P.2d 994 (1995). The state allocates money to pay or help pay the salaries of district 

attorneys and deputy district attorneys. See 2003 Oregon Laws Chapters 9 and 624. District attorneys 

are elected by the voters of each county, and, when a vacancy occurs, the governor appoints a person 

to fill the vacancy until the next election. ORS § 8.610 and ORS § 8.640. The county merely 

provides the district attorney and deputy district attorneys with office space, facilities, supplies, and 

assistance. ORS § 8.850. The district attorney has the power to appoint deputy district attorneys. 

ORS § 8. 760 and ORS § 8. 780. Deputy district attorneys are "subject to the direction of the district 

attorney". ORS § 8.780. Deputy district attorneys serve at the pleasure of the district attorney. 1984 

WL 192152 (Or.A.G.). Accordingly, all prosecutors within the district attorney's office constitute 

Page 13 -FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 13 of 15
a state entity, not a county entity. See Kleinman v. Multnomah County, 2004 WL 2359959, at *5 

(D.Or. 2004) (the Multnomah County District Attorney's Office is a state entity). 

Plaintiff argues that defendant Deschutes County is being sued for having customs and 

policies of prosecuting individuals in violation of their constitutional rights. Plaintiff argues that 

merely because the individuals who establish these polices are state employees should not matter 

because the policies are only implemented in Deschutes County. However, as another judge of this 

court has noted, Monell liability cannot be attributed to Deschutes County for the actions of the 

District Attorney, a non-County policymaker. Foster v. Flaherty, Case No. 11-6115-AA (order dated 

October 24, 2012) at p. 14. Accordingly, the claims against the County for malicious prosecution, 

declaratory judgment, and punitive damages (claims 1-5) should be dismissed. 

Plaintiff concedes that the false arrest claims against Gaspard should be dismissed. Plaintiff 

does not address dismissal of the state law claim for malicious prosecution against Gaspard. The 

court should dismiss this sole remaining state law claim without prejudice to seek leave to amend 

to allege it along with related federal claims. 

Plaintiff asks that should the County's motion be granted that she be allowed to amend to 

name individual defendants. Plaintiff also notes an intent to seek amendment of the claims against 

Gaspard to allege a claim under section 1983 for malicious prosecution. Accordingly, the County 

defendants' motion to dismiss should be granted without prejudice to seek leave to amend. 3 

CONCLUSION 

For the reasons stated above, the Burton defendants' motion for summary judgment (#10) 

should be granted. In addition, defendant Kaber's (#16) and defendants Gaspard and Deschutes 

3

1 express no opinion as to the propriety of any proposed amendments. 

Page 14- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 14 of 15
County's motion to dismiss (#18) should be granted without prejudice to seek leave to amend. 

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

Court of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's judgment or appealable order. The 

parties shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fourteen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right 

to de novo consideration of the factual issues and will constitute a waiver of a pmiy's right to 

appellate review of the findings of fact i:ri an order or judgment entered pursuant to this 

recommendation. 

DATED this -"'--tf.-day of June 2015. 

Page 15- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-00052-TC Document 31 Filed 06/24/15 Page 15 of 15