IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Portland Division

MATTHEW T. MGLEJ, 

Plaintiff,

v.

MULTNOMAH COUNTY, a political 

subdivision of the state of Oregon; 

MULTNOMAH COUNTY SHERIFF’S 

OFFICE, a subdivision of the state of 

Oregon; MULTNOMAH COUNTY 

DEPARTMENT OF CORRECTIONS, a 

subdivision of the state of Oregon; 

PORTLANT POLICE BUREAU, a 

subdivision of the state of Oregon; OFFICE

CRAIG DOBSON, an office of the City of 

Portland; OFFICER SARAH PAYTON, an 

officer of the City of Portland; OFFICER 

ENGSTROM, an officer of the City of 

Portland; OFFICER NEWHARD, an officer 

of the City of Portland and JOHN DOES I-X, 

as follows,

Defendants.

 Civil No. 3:15-cv-00096-MO

DEFENDANT MULTNOMAH 

COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF 

LAW 

ORAL ARGUMENT REQUESTED

JENNY M. MADKOUR, COUNTY ATTORNEY

FOR MULTNOMAH COUNTY, OREGON

B. Andrew Jones, OSB No. 091786 

Assistant County Attorney

501 S.E. Hawthorne Blvd., Suite 500

Portland, Oregon 97214

Telephone: (503) 988-3138

Facsimile: (503) 988-3377

Email: andy.jones@multco.us

Of Attorneys for Defendant Multnomah County

DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY JUDGMENT AND 

MEMORANDUM OF LAW 

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 1 of 27
TABLE OF CONTENTS

I. CERTIFICATION ............................................................................................................. 1

II. MOTION............................................................................................................................. 1

III. SUMMARY OF MATERIAL FACTS............................................................................. 1

IV. SUMMARY OF PLAINTIFF’S CLAIMS AND PLEADING....................................... 9

V. SUMMARY JUDGMENT STANDARD........................................................................ 10

VI. FEDERAL CLAIMS........................................................................................................ 11

1. STANDARD FOR MONELL CLAIM AGAINST MULTNOMAH COUNTY........ 11

2. CLAIM 1 – FOURTH AMENDMENT – UNLAWFUL ARREST AND 

DETENTION.............................................................................................................. 12

3. CLAIM 2 – FOURTH AMENDMENT – EXCESSIVE FORCE .............................. 13

4. CLAIM 3 – FOURTH AND FOURTEENTH AMENDMENT – MALICIOUS 

PROSECUTION......................................................................................................... 13

5. CLAIM 4 – FIRST AMENDMENT – PORTLAND INDECENCY ORDINANCES.

..................................................................................................................................... 14

6. CLAIM 5 – FOURTH AMENDMENT – CRUEL AND UNUSUAL PUNISHMENT

..................................................................................................................................... 14

VII. OREGON CONSTITUTIONAL CLAIMS................................................................... 17

1. CLAIMS 6, 7, 8, 9 AND 10 – OREGON CONSTITUTION, ARTICLE 1, 

SECTIONS 8, 9, 13, 15, 16.............. ...................................................................... 17

VIII. OREGON TORT CLAIMS ............................................................................................ 17

1. CLAIM 11 – BATTERY ............................................................................................ 17

2. CLAIM 12 – ASSAULT............................................................................................. 19

3. CLAIM 13 – NEGLIGENCE ..................................................................................... 20

IX. CONCLUSION ................................................................................................................ 22

i – TABLE OF CONTENTS

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 2 of 27
TABLE OF AUTHORITIES

CASES

Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)............................................... 14

Ballard v. City of Albany, 221 Or. App. 630, 641, 191 P.3d 679 (2008) ..................................... 18

Barcik v. Kubiaczyk, 321 Or. 174, 190, 895 P.2d 765 (1995) ...................................................... 17

Bd. of County Comm’rs v. Brown, 520 U.S. 397, 400 (1997) ...................................................... 11

Bollam v. Fireman’s Fund Ins. Co., 302 Or. 343, 347–348, 730 P2d 542 (1986) ....................... 21

Brown v. Ransweiler, 171 Cal. App. 4th 516, 527, 89 Cal. Rptr. 3d 801 (2009) .......................... 18

Buchler v. State, 316 Or. 499, 504, 853 P.2d 798 (1993)............................................................. 20

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ................ 11

Chavez v. Martinez, 538 U.S. 760, 789, 123 S. Ct. 1994 (2003).................................................. 16

Cleland v. Wilcox, 273 Or. 883, 887, 543 P2d 1032 (1975)......................................................... 21

Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48-49, 293 P2d 717 (1956) ............................... 17, 19

County of Riverside v. McLaughlin, 500 U.S. 44, 58-59, 111 S. Ct. 1661 (1991) ....................... 16

County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S. Ct. 1708 (1998)............................... 16

Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)............................................. 14

Getchell v. Mansfield, 260 Or 174, 179, 489 P2d 953 (1971)...................................................... 11

Gigler v. City of Klamath Falls, 21 Or. App. 753, 759-760, 537 P.2d 121 (1975) ................ 17, 19

Hunter v. Eugene, 309 Or 298, 302, 787 P2d 881 (1990) ............................................................ 17

Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991)....................... 11

Joshi v. Providence Health Sys. of Or. Corp., 198 Or. App. 535, 545, 108 P3d 1195 (2005)..... 21

Juran v. Independence Or. Cent. Sch. Dist. 13J, 898 F. Supp. 728, 730, 1995 U.S. Dist. LEXIS 

12801 (D. Or. 1995).................................................................................................................. 17

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)..................................................... passim

Oltarzewski v. Ruggiero, 830 F.2d 136, 138-39 (9th Cir. 1987) .................................................. 11

Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155 (1976)............................................................. 16

Piedra v. Dugan, 123 Cal. App. 4th 1483, 1495, 21 Cal. Rptr. 3d 36 (2004)............................... 18

Pierce v. Multnomah County, 76 F.3d 1032, 1042-1043 (9th Cir. 1996)...................................... 14

Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008).......................................................................... 15

Rich v. Cooper, 234 Or. 300, 309-310, 380 P.2d 613 (1963)....................................................... 17

Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1230 (9th Cir. 2014) .................... 15

Sigurdson v. Del Guercio, 241 F.2d 480, 482 (9th Cir. 1956)........................................................ 9

Solberg v. Johnson, 306 Or. 484, 490-91, 760 P2d 867 (1988) ................................................... 20

St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915 (1988) ........................................ 12, 15

Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009).......................................................... 16

Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989)................................. 12, 13

Tiedemann v. Radiation Therapy Consultants, P.C., 299 Or 238, 246, 701 P2d 440, 446 (1985)

.................................................................................................................................................. .11

Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir.1996)................................................ 12

Wimett v. Sothern, 2013 U.S. Dist. LEXIS 107371, 6 (D. Or. July 11, 2013) ............................... 9

ii – TABLE OF AUTHORITIES

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 3 of 27
RULES

F.R.C.P. 56(c) ............................................................................................................................... 10

Fed. R. Civ. P. 56(e) ..................................................................................................................... 11

CONSTITUTIONAL PROVISIONS

28 U.S.C.A...................................................................................................................................... 9

42 U.S.C. §1983.................................................................................................................. 9, 11, 13

iii – TABLE OF AUTHORITIES

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 4 of 27
I. CERTIFICATION

Pursuant to Local Rule 7-1, Defendant Multnomah County certifies that it has made a 

good faith effort to resolve the disputes and are unable to do so and the court’s ruling is now 

necessary. The parties discussed dispositive motions on August 21, 2015, with the Court 

explaining to Plaintiff the process of dispositive motions that would be filed by both sets of 

Defendants. Counsel for the County attempted to call and confer on September 30, 2015 and 

again on October 7, 2015, but the phone number for Plaintiff was not answered, and did not give 

an opportunity to leave voicemail. In addition to these calls, counsel emailed Plaintiff twice to 

attempt to confer, both of which were not returned.

II. MOTION

Defendant Multnomah County (“County”), pursuant to Federal Rule of Civil Procedure 

56, respectfully moves this court for summary judgment on each and every claim by Plaintiff 

Matthew Mglej. In support of this motion, the County relies upon the pleadings on file with this 

court, the Declaration of Raimond Adgers, the Declaration of Bruce Bledsoe, the Declaration of 

Ryan Gerrick, the Declaration of Nancy Griffith, the Declaration of Steven Nicholson, the 

Declaration of B. Andrew Jones, and the following Points and Authorities.

III. SUMMARY OF MATERIAL FACTS

Plaintiff Matthew Mglej was arrested by Portland Police Bureau Officers on May 23, 

2014. (Amended Complaint, Docket 33, ¶¶ 13 and 31; PPB Answer, Docket # 36, p. 3). The 

officers drove Plaintiff to the Multnomah County Detention Center (“MCDC”) for booking into 

County custody. (PPB Answer, Docket #36, p. 5). Plaintiff was brought to MCDC naked, his 

hands restrained by a set of handcuffs that had been applied before arriving. (PPB Answer, 

Docket # 36, pp. 3 and 5). 

Page 1 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 5 of 27
Deputies asked Plaintiff to step out of the patrol car so they could escort him into the jail 

for booking, and Plaintiff refused to answer these requests. (Declaration of Bruce Bledsoe, ¶ 3). 

Because Plaintiff ignored or disregarded these directions, Deputy Kosmin had to physically pull 

Plaintiff from the car, and several deputies then lifted Plaintiff up onto his feet. (Id., ¶¶ 3-4). 

Deputy Bledsoe removed Plaintiff’s right handcuff from his wrist and re-secured his hands 

behind him for officer safety, securing the right handcuff around Plaintiff’s wrist near the hand 

and checking for tightness. (Id., ¶¶ 4-5). Deputy Bledsoe held Plaintiff’s arms to the side, 

keeping control of Plaintiff’s uncuffed arm by holding onto Plaintiff’s arm and wrist. (Id.). 

Plaintiff did not say anything about injuries to his wrists, or complain about the handcuffs being 

painful or too tight. (Id.).

 After re-securing the right handcuff, deputies escorted Plaintiff to the central booking 

counter. (Id., ¶ 6). Plaintiff did not complain to the deputies that his handcuffs were too tight or 

injuring him, saying only that he was choosing to remain silent. (Bledsoe Decl, ¶ 6; Declaration 

of B. Andrew Jones Declaration, ¶ 2; Exhibit 1, pp. 8-10).

MCDC is the central jail facility for the County, through which all incoming detainees 

are processed. (Declaration of Raimond Adgers, ¶ 3). MCDC is a high volume facility, with the 

County admitting seventy to eighty incoming detainees per day. (Adgers Decl, ¶ 4). Because of 

this volume, the County uses standard procedures for both intake and release of detainees. (Id.). 

The County also keeps and maintains, in the County’s regular course of business, various records 

of different steps in the booking and/or release process for each inmate, keeping these records by 

inmate name and eSWIS identification number. (Id., ¶¶ 4-5).

Page 2 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 6 of 27
Plaintiff began the booking process in the early afternoon of May 23, 2014, and Sergeant

Steven Nicholson was in charge of intake at that time. (Adgers Decl, ¶ 5; Exhibit 1; Declaration 

of Steven Nicholson, ¶ 4). During the booking process, due to concerns about Plaintiff’s erratic 

behavior, and due to Portland Police reports that Plaintiff was uncooperative, Plaintiff was kept 

handcuffed, with deputies standing beside and around Plaintiff to ensure he stayed in place. 

(Nicholson Decl, ¶ 4). 

The arresting officer, Defendant Sarah Payton of the Portland Police Bureau, provided 

deputies with a standardized “Jail Intake Booking Screening Questions” form about the Plaintiff, 

in which Officer Payton indicated Plaintiff had exhibited behavior suggesting mental illness, that 

she had some indication that Plaintiff was not following instructions, and that she felt there 

would be a need to keep Plaintiff separate from others housed at MCDC. (Adgers Decl, ¶ 5; 

Exhibit 1, p. 1). Deputies then asked Plaintiff several more intake questions, including whether 

Plaintiff was presently having suicidal thoughts. (Id., Declaration of Ryan Garrick, ¶ 3; Bledsoe 

Decl, ¶ 6; Nicholson Decl, ¶¶ 5-6). 

Plaintiff would not answer questions as to whether he was having suicidal thoughts, 

saying only that he refused to speak to anyone until he had a lawyer. (Jones Decl, ¶ 2; Exhibit 1, 

pp. 2-3). Deputies repeatedly asked Plaintiff to answer if he was suicidal, telling him that if he 

refused to answer that question in particular, that he would be considered a suicide risk and 

placed on protective suicide watch. (Garrick Decl, ¶ 3; Nicholson Decl, ¶ 6). Plaintiff continued 

to refuse to give an answer. (Id.). As a result, Deputy Gainer marked “yes” to the question on 

the intake form, noting that Plaintiff refused to answer. (Adgers Decl ¶ 5, Exhibit 1, pp. 2 and 

4). Plaintiff has no recollection of what deputies were asking him at that time, only that he chose 

to remain silent. (Jones Decl ¶ 2, Exhibit 1, pp. 11-12).

Page 3 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 7 of 27
The Multnomah County Sheriff’s Office has policies to prevent inmate suicide or selfharm. (Adgers Decl, ¶¶ 6-9, Exhibits 2 and 4). In addition to the inmate classification interview 

with a deputy, Multnomah County Corrections Health personnel conduct a separate evaluation of 

incoming detainees, again asking the inmate about any thoughts or feelings of suicide or selfharm. (Id.). In the event any staff member, either from the Sheriff’s Office or Corrections 

Health, has a concern that an inmate is a risk for suicide or self-harm, the staff member is 

authorized to place that inmate on suicide watch, and the decision is to be documented by the 

MCDC Sergeant in Charge and a Corrections Health member. (Adgers Decl, ¶¶ 6-7; Exhibit 2). 

PPB’s report that Plaintiff had exhibited signs of mental illness, taken together with 

Plaintiff’s refusal to give deputies any indication as to whether he was suicidal and with 

Plaintiff’s erratic behavior and refusal to communicate or cooperate with staff, led to the decision 

to place Plaintiff on suicide watch as a precaution. (Nicholson Decl, ¶ 6). Sergeant Steven 

Nicholson completed a Suicide Watch Form for Plaintiff, signed by both himself and Nurse 

Bennefield of Corrections Health, placing Plaintiff on active suicide watch at 4:30 p.m. on May 

23, 2014. (Nicholson Decl, ¶ 6: Exhibit 1). 

Pursuant to Sheriff’s Office policy, an inmate on “active” suicide watch is housed in a 

isolation cell by themselves, and a Sheriff’s deputy performs no less than five (5) random visual 

checks of the inmate per hour by looking through the window of the inmate’s cell. (Adgers 

Decl, ¶¶ 8-9; Exhibit 3). Deputies took Plaintiff to isolation cell #4 for housing and suicide 

watch. (Nicholson Decl, ¶ 7; Adgers Decl, ¶ 8, Exhibit 3). 

Before Plaintiff was placed into the isolation cell, his handcuffs needed to be removed. 

(Nicholson Decl, ¶ 7, Bledsoe Decl, ¶¶ 7-8). Deputies kept Plaintiff’s hands restrained during 

his booking and transport to the isolation cell, as they were concerned about his erratic behavior 

Page 4 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 8 of 27
and his failure to respond to directions. (Nichoson Decl, ¶¶ 4 and 6). Further, because of these

concerns, they utilized a tether cord to uncuff Plaintiff through a food port in the isolation cell 

door. (Nicholson Decl, ¶ 11, Bledsoe Decl, ¶ 7). 

Uncuffing through the food port is a common procedure, typically done with a nylon 

tether cord attached to an inmate’s handcuffs. (Nicholson Decl, ¶¶ 6-10, Exhibits 2-5). Deputies 

open the cell door, feed the tether through the door, place the inmate in the cell, and then position 

the inmate close to the door frame, closing the door behind him with the tether fed out through 

the port. (Id.). The cord is used to make sure the inmate cannot move away from the door, 

which would then require deputies to go into the cell, and regain physical control, creating a 

greater risk of harm to the inmate or the deputies. (Id.).

Once the door is closed, deputies give verbal directions to the inmate to reach their hands 

out through the food port to give the deputies access to the inmate’s cuffs. (Id.). Multiple 

deputies are involved in the process to make sure the inmate is kept safe and secure, typically 

with one deputy holding each hand, another deputy holding the cord, and a fourth deputy 

uncuffing the keys. (Id.). If an inmate follows directions, the process is benign and takes less 

than a minute to get the inmate into the cell and out of the handcuffs. (Id.).

In this case, there were multiple deputies present to secure Plaintiff’s arms to avoid 

injury. (Nicholson Decl, ¶ 11, Bledsoe Decl, ¶ 8, Garrick Decl, ¶ 4). As with prior requests and 

commands from Portland Police and at the booking counter, Plaintiff continued to either ignore 

or refuse to comply with requests to move into the cell to have his cuffs removed. (Bledsoe 

Decl, ¶ 8, Nicholson Decl, ¶ 11). (Id.). Deputies did not, as Plaintiff alleges, pull Plaintiff 

violently against the door or use force to get his hands out. (Bledsoe Decl, ¶¶ 8-9; Nicholson 

Decl, ¶ 11). 

Page 5 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 9 of 27
Rather, the deputies simply held the tether in place to keep Plaintiff from moving away 

from the door, repeatedly asking Plaintiff to put his hands out the food port so they could remove 

his handcuffs. (Id.). Once Plaintiff put his hands near the food port for deputies to reach them,

deputies were able to remove the cuffs and hand them back to Officer Payton, who was standing 

by to get her handcuffs. (Id.). Plaintiff began picking and scratching at his wrists after being 

placed into the isolation cell. (Bledsoe Decl, ¶¶ 10-11). 

After Plaintiff was safely in the cell, deputies repeatedly checked on Plaintiff, consistent 

with policy, immediately after starting active watch. (Adgers Decl., ¶ 8, Exhibit 3). In addition, 

Corrections Health nursing staff repeatedly checked in on Plaintiff’s well-being. (Declaration of 

Nancy Griffith, ¶¶ 4-5; Exhibit 1). A nurse saw Plaintiff on May 23rd, 2014 at 4:30 p.m., again at 

4:45 p.m., and again at 9:25 p.m. (Id.). 

The nurses observed “superficial lacerations” to Plaintiff’s wrists and feet, but Plaintiff 

refused any medical treatment or offers by the nurse to clean and dress the lacerations. (Id.). 

Portland Police photographed these scratches, along with scrapes on the tops of Plaintiff’s feet 

which occurred when he refused to stand up and Portland Police Officers had to pick him up and 

carry him to the car. (Jones Decl, ¶ 2, Exhibit 1, pp. 4-6 and 13-20). These scratches were not 

caused by handcuffs, but are consistent with Plaintiff picking at his wrists. (Bledsoe Decl, ¶¶ 10-

11). The handcuffs were applied and checked for tightness around the base of his ulnar bone, at 

the junction of the wrist and hand, and the scratches shown in the photographs taken by Portland 

Police are not consistent with the handcuffs being fastened on that area of Plaintiff’s wrists. 

(Id.). Plaintiff was not injured during the uncuffing process. (Id.).

Page 6 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 10 of 27
The County requires the inmate be evaluated by a mental health professional before that 

inmate is taken off of suicide watch. (Adgers Decl., ¶ 9; Exhibit 4). At the time of Plaintiff’s 

detention, Corrections Health did not have the budget to keep a mental health professional on 

premises around the clock. (Griffith Decl, ¶ 6). Instead, the County staffed MCDC with a 

mental health professional during normal business hours and inmates on suicide watch would be 

evaluated as soon as practicable if there were no immediate signs of medical emergency. (Id.). 

During the night of May 23th and the early morning hours of May 24th, County Corrections and 

Corrections Health staff continually checked on Plaintiff to ensure his well being, and that he 

was not at immediate risk of harm. (Griffith Decl, ¶ 5; Exhibit 1; Adgers Decl, ¶ 8, Exhibit 3).

The Multnomah County Circuit Court presiding judge, in delegating limited jail release 

authority to the Sheriff, has given specific orders with respect to its release of inmates who are 

determined to be suicidal or at risk of self-harm. (Adgers Decl, ¶ 10; Exhibit 5). The court’s 

order (emphasis added) gives specific direction with respect to two circumstances implicated 

during Plaintiff’s detention on May 23, 2014:

“The release assistance officers shall review the jail population and 

may make releases, subject to the restrictions set out in this order, 

up to the start of trial, in those instances when an initial release was 

not possible due (1) to the refusal of the person to cooperate or 

incapacity to engage in the interview process....” (Order, p 2, 

paragraph 1).

... ... ...

“Release assistance officers may override any release score or 

decision to hold in custody until the next court appearance any 

person identified as a “risk to self” by a medical evaluation 

prefomred (sic) by Correction Health staff and the person is placed 

on “suicide watch” by the Multnomah County Sheriff’s staff. This 

specific override authority is subject to the following conditions: 1) 

a mental health evaluation will be completed on the person prior to 

court appearance on the next judicial day; 2) a system is put in 

Page 7 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 11 of 27
place to assure that the release assistance officers are informed 

when a person is given risk to self medical evaluation and is 

placed on suicide watch; and 3) a system is put in place to assure 

the court is informed of the suicide watch and the mental health 

assessment at or prior to the court appearance at which the release 

of the person will be next before the court. The purpose of this 

specific override condition is to hold the person to the person’s 

next court appearance to permit a judge to be informed of all 

factors relevant to the release of the person from custody. (Order, 

p 3, paragraph 4).

(Id.)

Because Plaintiff was on active suicide watch, the Sheriff’s Office waited for a mental 

health professional to evaluate Plaintiff before making any release determination. (Adgers Decl, 

¶¶ 10-12, Griffith Decl, ¶ 7, Exhibit 1). Corrections Health Nurses and Sheriff’s deputies made 

continuous checks on Plaintiff throughout the evening of May 23rd and into the early morning 

hours of May 24th. (Adgers Decl, ¶ 9; Exhibit 4; Griffith Decl, ¶¶ 5 and 7; Exhibit 1).

On May 24, 2014, County Mental Health Consultant Ann Gottling evaluated Plaintiff 

around 10:00 a.m. (Griffith Decl, ¶¶ 5 and 7; Exhibit 1). After performing her evaluation, Ms. 

Gottling notified the Sheriff’s Office they could discontinue active suicide watch. (Id.). Ms.

Gottling signed and dated the suicide watch termination portion of the form, along with the onduty Sergeant from the Sheriff’s Office. (Nicholson Decl, ¶ 5; Exhibit 1; Adgers Decl, ¶ 11, 

Exhibit 6).

Plaintiff was promptly processed for release on Saturday the 24th, rather than holding 

him until his court date the next Tuesday (Monday was the Memorial Day holiday). (Adgers 

Decl, ¶ 12, Exhibit 6). Plaintiff was taken off suicide watch at 10:00 a.m., and jail records show 

he was released from custody at approximately 10:47 a.m. on Saturday morning, having spent 

less than a day in County custody. (Id.).

Page 8 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 12 of 27
IV. SUMMARY OF PLAINTIFF’S CLAIMS AND PLEADING

Plaintiff has alleged thirteen (13) separate causes of action against Multnomah County, 

the Multnomah County Sheriff’s Office, and the Multnomah County Department of Corrections. 

The County is the sole proper defendant as a public entity, as the Sheriff’s Office is a bureau 

within the larger County, and the “Department of Corrections” is not a Multnomah County 

entity. See Wimett v. Sothern, 2013 U.S. Dist. LEXIS 107371, 6 (D. Or. July 11, 2013), citing 

Keller v. City of Portland, 1998 U.S. Dist. LEXIS 21743 (D. Or. Nov. 13, 1998)(police bureau is 

not a separate entity from the city itself, city sole proper municipal defendant in action under 42 

U.S.C. §1983). As such, this motion is directed against Plaintiff’s claims against Multnomah 

County, and the bureau entities should be dismissed with prejudice, and/or subsumed into the 

court’s decisions against the County alone. Plaintiff filed this case with “Doe” defendants, who 

are a legal fiction not subject to suit or judgment. See Sigurdson v. Del Guercio, 241 F.2d 480, 

482 (9th Cir. 1956)(“These John Doe complaints are dangerous at any time. It is inviting disaster 

to allow them to be filed and to allow fictitious persons to remain defendants if the complaint is 

still of record....Although the fact that the Rules of Civil Procedure, 28 U.S.C.A., contain no 

express prohibition upon the subject, there is no authority of which we are aware for the joining 

of fictitious defendants in an action under a federal statute.”). However, a Doe defendant may be 

used as a placeholder to discover identity of actual individuals subject to suit during discovery.

Because Plaintiff pled the case with “Doe” defendants, the County provided Plaintiff with 

requested information in discovery to give Plaintiff the opportunity to identify what, if any, 

individuals that Plaintiff wished to name. The County identified the deputies who were present 

during Plaintiff’s booking. (Jones Decl, ¶ 3; Exhibit 2, p. 3). The County provided a video of 

the booking counter showing the deputies identified in the Interrogatory response. (Jones Decl, ¶ 

Page 9 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 13 of 27
4; Exhibit 3, p. 4). The City provided video from Officer Payton’s car, a portion of which shows 

County deputies removing Plaintiff from the car, all of whom were identified in Interrogatory 

responses. (Jones Decl ¶ 5, Exhibit 4). The County provided booking and classification records

identifying classification deputies and staff. (Jones Decl ¶ 3, Exhibit 2, p. 3). The County 

provided Plaintiff with his Corrections Health records showing which County Corrections Health 

personnel worked with him. (Id., Exhibit 3, pp. 3-4). 

Plaintiff sent a Second Set of Interrogatories via email on September 13, 2015, less than 

thirty days from the Court’s discovery cutoff, asking for additional identification of individuals, 

(Jones Decl ¶ 7, Exhibit 6), and then moved to amend the complaint to identify Doe defendants

on September 24th (Docket # 44). The Court gave Plaintiff until October 8th, 2015 to amend to 

name individual defendants. (Docket # 45). 

Despite being served with less than the thirty (30) days to respond before the deadline, 

the County provided responses on September 25th, 2015. (Jones Decl ¶ 8, Exhibit 7). 

The Court’s scheduling deadline of October 8th, 2015 has passed without an amendment. 

The only claims are therefore against the County as an entity. Defendant Multnomah County 

now moves for summary judgment against each and every claim brought by Plaintiff under 

federal and state law in his Amendment Complaint (Docket # 33). 

V. SUMMARY JUDGMENT STANDARD

Summary judgment should be granted if there are no genuine issues of material fact and 

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A party 

seeking summary judgment bears the initial responsibility of informing the court of the basis for 

its motion, and providing evidence in support of its motion which demonstrates the absence of a 

Page 10 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 14 of 27
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 

L.Ed.2d 265 (1986).

If the moving party satisfies this initial burden, the burden shifts to the opposing party, 

who “must present significant probative evidence tending to support its claim or defense.” Intel 

Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Further, the 

non-moving party must satisfy its burden by coming forward with sufficient evidence 

demonstrating to the Court that there are genuine issues of material fact to be decided at trial.

Fed. R. Civ. P. 56(e). For a medical negligence claim under Oregon law, a plaintiff bears the 

burden of coming forward with expert testimony as to the applicable standard of care in the 

community to overcome a motion for summary judgment. Tiedemann v. Radiation Therapy 

Consultants, P.C., 299 Or 238, 246, 701 P2d 440, 446 (1985), citing Getchell v. Mansfield, 260 

Or 174, 179, 489 P2d 953 (1971). 

As the Ninth Circuit has stated, “[A]n adverse party may not rest upon the mere 

allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in 

[Fed. R. Civ. P. 56] must set forth specific facts showing that there is a genuine issue for trial.”

Oltarzewski v. Ruggiero, 830 F.2d 136, 138-39 (9th Cir. 1987). 

VI. FEDERAL CLAIMS

1. Standard for Monell Claim against Multnomah County

With respect to Plaintiff’s civil rights claims against the County, respondeat superior 

cannot form a basis for municipal § 1983 liability; a municipality may be liable only when the 

execution of a municipal policy, practice, or custom is the “moving force” behind the violation 

of a plaintiff’s civil rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Bd. of 

County Comm’rs v. Brown, 520 U.S. 397, 400 (1997). Four elements are required: (1) a violation 

Page 11 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 15 of 27
of plaintiff’s constitutional right; (2) the existence of a municipal policy, practice, or custom; (3) 

the policy, custom, or practice constituted deliberate indifference to plaintiff’s constitutional 

rights; and, (4) that the policy, practice, or custom was the moving force behind the 

constitutional violation. Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir.1996).

For a policy claim, a plaintiff must plead and prove facts demonstrating that the 

challenged municipal action “implements or executes a policy, statement, ordinance, regulation, 

or decision officially adopted and promulgated by that body’s officers.” Monell, 436 U.S. at 

690. For a practice or custom claim, plaintiff must plead and prove facts showing a widespread 

municipal course of action that, while not ratified or adopted by a policymaker, is nonetheless 

"so permanent and well-settled as to constitute a 'custom or usage' with the force of law." Monell 

v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); St. Louis v. 

Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915 (1988). Proof of random acts or isolated events 

are not sufficient to establish a municipal custom. Thompson v. City of Los Angeles, 885 F.2d 

1439, 1444 (9th Cir. 1989).

Plaintiff’s Amended Complaint brings a Monell claim against the County in Claims 1-4. 

For the following reasons, the County is entitled to summary judgment.

2. Claim 1 – Fourth Amendment – Unlawful Arrest and Detention

Plaintiff alleges he was unlawfully arrested by Portland Police Officers Payton and 

Engstrom (Amended Complaint, ¶¶ 95-100), but alleges that the actions of the officers “were 

based on the practices and customs of Multnomah County’s Sheriff’s Office.” Portland Police 

are wholly separate from Multnomah County, and any arrest decisions by the Portland Police 

Bureau Officers are unrelated to any County practice or custom. 

Page 12 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 16 of 27
The County’s involvement with Plaintiff began only after Plaintiff had been arrested, 

handcuffed, and transported to the Multnomah County Detention Center. Notwithstanding the 

legality of the arrest, Multnomah County cannot be liable for the actions of Portland Police under 

a Monell theory as Plaintiff has alleged. Summary judgment for the County is warranted.

3. Claim 2 – Fourth Amendment – Excessive Force

Plaintiff cannot satisfy a Monell claim for excessive force because he cannot offer 

evidence to support his allegation that any of the actions described in his Amended Complaint 

were pursuant to municipal policy, practice, or custom. Further, Plaintiff’s claim is for one 

isolated incident, in and of itself insufficient to establish municipal liability. Thompson v. City of 

Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989). As there is no claim against a named 

individual County agent or actor, the Monell claim is the only claim directed against the County. 

The County is entitled to summary judgment on the Monell excessive force claim.

4. Claim 3 – Fourth and Fourteenth Amendment – Malicious Prosecution

Plaintiff’s Third Claim for Relief, malicious prosecution, claims that Officers Payton, 

Engstrom, and Does were “acting as an agent of Multnomah County.” (Amended Complaint, ¶

122). As noted above, Plaintiff cannot come forward with evidence to support this assertion –

the Portland Police Officers who made the arrest decision were neither County employees nor 

acting as agents of the County. Plaintiff cannot show a County policy, practice, or custom as the 

‘moving force’ behind any such action, and therefore the County is entitled to summary 

judgment.

Further, a malicious prosecution claim under 42 U.S.C. §1983 requires a plaintiff “show 

that the defendants prosecuted [him] with malice and without probable cause, and that they did 

so for the purpose of denying [him] equal protection or another specific constitutional right."

Page 13 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 17 of 27
Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004), citing Freeman v. City of

Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). The County had no role in the arrest, and had no 

role in prosecuting the Plaintiff – the arrest was made by Portland Police, and the criminal case 

was prosecuted by the State of Oregon. Plaintiff can show no malice on the part of the County 

and no role in the prosecution, and therefore the County is entitled to summary judgment on this 

claim.

5. Claim 4 – First Amendment – Portland Indecency Ordinances

As with prior claims, Plaintiff alleges in his Fourth claim for relief that the PPB Officers’ 

actions in arresting Plaintiff for violation of a Portland ordinance “were consistent with the 

practices and customers of the Multnomah County Sheriff’s Office.” Again, the County has no 

relationship with the Portland Police Officers, and these Officers act independent of any County 

policies. There is no factual basis for a Monell claim against Multnomah County for the acts of 

Portland Police Officers. 

6. Claim 5 – Fourth Amendment – Cruel and Unusual Punishment

Plaintiff’s Fifth Claim complains certain actions by Portland Police and by the County 

constituted “cruel and unusual punishment” in contravention of the Fourth Amendment. 

(Amended Complaint, ¶¶ 135-147). The Eighth Amendment, not the Fourth, gives this 

guarantee, and the Eighth Amendment does not attach to pre-trial, pre-arraignment detainees, as 

was Plaintiff during his overnight detention. See Pierce v. Multnomah County, 76 F.3d 1032, 

1042-1043 (9th Cir. 1996)(Fourth Amendment applies to duration, justification, and conditions 

for pre-arraignment detainees). 

Page 14 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 18 of 27
The first portion of the Fifth Claim for relief mirrors the Second Claim for relief for 

excessive force. (Compare Paragraph 136 with 109-115). As noted above, Plaintiff cannot 

identify any County policy, practice, or custom that was the “moving force” behind any 

constitutional violation involving the force used, and therefore he cannot maintain a claim 

against the County. Monell, 436 U.S. at 691-694.

 Plaintiff cannot survive summary judgment with an unsubstantiated “failure to train” 

allegation. Such a claim requires some evidence that a County’s training program “amounts to 

deliberate indifference to the rights of persons with whom the police come into contact," and that 

such failure in training was the cause of the deprivation of right. Sheehan v. City & County of 

San Francisco, 743 F.3d 1211, 1230 (9th Cir. 2014), citing Price v. Sery, 513 F.3d 962, 973 (9th 

Cir. 2008). There is no evidence that County training was inadequate, that any action was a 

result of any inadequacy in training, or even that there are widespread failures or occurrence at 

the County that would be so ‘permanent and well-settled’ as to constitute municipal policy. 

Praprotnik, 485 U.S. at 127. 

Plaintiff alleges he was over detained because “three medical examiners cleared him.” 

(Amended Complaint, ¶ 143). However, the County detained Plaintiff upon arrest by Portland 

Police. The County placed Plaintiff on suicide watch only after his refusal to cooperate and 

behavior led County staff to be concerned he was a suicide risk. Indeed, the County release 

authority is derived from the presiding court, which specifically directs the County to take the 

action it did, namely to hold Plaintiff pending mental health assessment. The County followed 

protocols as established by the presiding court to make sure Plaintiff was evaluated by a 

qualified mental health professional before release. 

Page 15 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 19 of 27
Plaintiff does not establish what policy he is challenging, or how the County’s actions 

would constitute a Fourth Amendment violation, as he was released in less than twenty-four 

hours, even with the temporary suicide watch restriction. See County of Riverside v. 

McLaughlin, 500 U.S. 44, 58-59, 111 S. Ct. 1661 (1991)(probable cause determination within 

forty-eight hours of detention satisfies requirements of Fourth Amendment). 

The majority of the remaining allegations by Plaintiff, even if proven, do not constitute 

violations of Plaintiff’s constitutional rights. (Amended Complaint, ¶¶ 137-44). As with other 

claims, Plaintiff fails to identify a challenged policy, practice, or custom as the ‘moving force’ 

and therefore cannot make these claims, no matter what the constitutional claims at issue.

Assuming Plaintiff’s claim is directed at the Fourteenth Amendment’s guarantee of 

substantive due process, the Plaintiff bears a heavy burden. The due process clause was not 

meant to serve as a "font of tort law” to supplement state law causes of action. Paul v. Davis, 

424 U.S. 693, 701, 96 S. Ct. 1155 (1976). The plaintiff must show deliberate indifference to 

civil rights on the part of the County such that it ‘shocks the conscience’ when the record is 

reviewed. County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S. Ct. 1708 (1998). 

Negligent, offensive or objectionable conduct on the part of a government actor is not enough; 

the police conduct must rise to the level of “[police] torture or its close equivalents.” Stoot v.

City of Everett, 582 F.3d 910, 928 (9th Cir. 2009), citing Chavez v. Martinez, 538 U.S. 760, 789, 

123 S. Ct. 1994 (2003). 

Plaintiff was kept for less than a day in isolation based on his refusal to cooperate and 

concerns about his well-being. Plaintiff was monitored regularly by jail deputies and medical 

personnel. None of these allegations are sufficient, even if Plaintiff had factual support, to rise to 

the level of a Fourteenth Amendment claim.

Page 16 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 20 of 27
VII. OREGON CONSTITUTIONAL CLAIMS

1. Claims 6, 7, 8, 9 and 10 – Oregon Constitution, Article 1, Sections 8, 9, 13, 15, 16

Plaintiff’s next five claims are predicated upon the Oregon Constitution. However, 

plaintiff may not bring a private action for damages, either compensatory or nominal, relying 

upon the Oregon Constitution as the source of law. Hunter v. Eugene, 309 Or. 298, 302, 787 P2d 

881 (1990), Barcik v. Kubiaczyk, 321 Or. 174, 190, 895 P.2d 765 (1995). Plaintiff may only sue 

the County (and the City defendants) under common law theories of tort, subject to the 

provisions of the Oregon Tort Claims act. Juran v. Independence Or. Cent. Sch. Dist. 13J, 898 

F. Supp. 728, 730, 1995 U.S. Dist. LEXIS 12801 (D. Or. 1995).

The County is entitled to summary judgment on Plaintiff’s claims made under the Oregon 

Constitution.

VIII. OREGON TORT CLAIMS

1. Claim 11 – Battery

Plaintiff’s Eleventh Claim is for battery, defined under Oregon law as a intentional 

voluntary act that causes intentionally harmful or offensive contact with another. Cook v. Kinzua 

Pine Mills Co., 207 Or. 34, 48-49, 293 P2d 717 (1956). This tort requires a dual intention – the 

intent to act in such a way as to cause the contact, and the intent that the contact cause a legal 

injury. See Cook, 207 Or. at 48 (“[B]attery involves more than an intentional act. There must be 

the intent to injure.”).

Additionally, a Sheriff’s Deputy is authorized to utilize reasonable force in the 

performance of their duties. Rich v. Cooper, 234 Or. 300, 309-310, 380 P.2d 613 (1963), Gigler 

v. Klamath Falls, 21 Or. App. 753, 759-760, 537 P.2d 121 (1975). Further, an officer is 

“presumed to be acting in good faith” when determining what amount of force is reasonable in a 

Page 17 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 21 of 27
given circumstances. Ballard v. City of Albany, 221 Or. App. 630, 641, 191 P.3d 679 (2008). 

The rule and presumptions recognize the reality that officers often have physical contact with 

individuals as part of their job, that most contact is not intended to be injurious, and that officers 

should not be made to appear before a jury for every physical contact, no matter how slight. The 

California Court of Appeals has elucidated the rationale behind such a standard:

“A state law battery claim is a counterpart to a federal claim of 

excessive use of force. In both, a plaintiff must prove that the 

peace officer’s use of force was unreasonable.” Brown v. 

Ransweiler, 171 Cal App 4th 516, 527, 89 Cal Rptr 3d 801 (2009), 

citing Munoz v. City of Union City, 120 Cal App 4th 1077, 1102, 16 

Cal Rptr 3d 521 (2004).1

.... .... ....

“...p]lacing the burden of proof on the plaintiff to establish that an 

officer’s use of force was unreasonable ‘gives the police 

appropriate maneuvering room in which to make such judgments 

free from the need to justify every action in a court of law.’” 

Brown, 171 Cal App 4th at 528, 89 Cal Rptr 3d 801 (2009), citing 

Martinez v. County of Los Angeles, 47 Cal App 4th 334, 343, 54 

Cal Rptr 2d 772 (1996); Edson v. City of Anaheim, 63 Cal App 4th

1269, 1273, 74 Cal Rptr 614 (1998).

... ... ...

“Indeed, any other rule would invite a flood of litigation. If the 

law required police to defend the reasonableness of their conduct 

any time a plaintiff made a prima facie case by showing an 

offensive touching, the already heavy burdens law enforcement 

bears for us would become cetaceous. And we would all suffer.” 

Edson, 63 Cal App at 1275, 74 Cal Rptr 614.”

/// /// ///

/// /// ///

1 The elements of a civil battery between private citizens in California are identical to those in 

Oregon. Brown v. Ransweiler, 171 Cal. App. 4th 516, 527, 89 Cal. Rptr. 3d 801 (2009), citing 

Piedra v. Dugan, 123 Cal. App. 4th 1483, 1495, 21 Cal. Rptr. 3d 36 (2004). 

Page 18 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

 

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 22 of 27
So too, here. The County escorted Plaintiff to the cell and removed the handcuffs. There 

was no injury caused by the County in uncuffing the Plaintiff - the marks he complains of on his 

forearms are inconsistent with the area of his body the cuffs were applied, and consistent instead 

with the picking and scratching at the arms that deputies observed.

Further, Plaintiff repeatedly declined to answer any questions about his alleged injuries, 

on the grounds that he was not a doctor, and his medical records would be the best record of 

what injuries he sustained. (Jones Decl, ¶ 2; Exhibit 1, p. 7). The minimal force used to remove

the handcuffs cannot rise to the level of common law battery. The County is entitled to summary 

judgment.

2. Claim 12 – Assault

Assault the “intentional attempt to do violence to the person of another, coupled with 

present ability to carry the intention into effect.” Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48–

49, 293 P2d 717 (1956). While assault and battery are distinct torts, identical principles apply 

with respect to peace officers, namely “when physical violence exerted by the officers against 

the plaintiff was no more than necessary to accomplish the legitimate purpose of fulfilling their 

duty,” then a deputy committed neither assault nor battery. Evans v. Multnomah County, 2009 

U.S. Dist. LEXIS 32112, 27 (D. Or. 2009), citing Gigler v. Klamath Falls, 21 Or. App. 763, 537 

P.2d 121 (1975). 

For the same reasons as with the battery claim, no County employee commited assault, as 

there is no evidence of an intentional attempt by any deputy to do violence, and in fact the 

removal of the handcuffs from behind would not have constituted an attempt to create 

apprehension on the part of Plaintiff. Summary judgment is warranted. 

Page 19 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 23 of 27
3. Claim 13 – Negligence

Finally, Plaintiff claims that the County was negligent in the manner it removed his 

handcuffs, and in “failing to train on proper handling of service animals and pretrial detainees 

with service animals.” (Amended Complaint, ¶¶ 229-230). The elements of a garden variety 

common law negligence claim in Oregon are: “"(1) that defendant's conduct caused a foreseeable 

risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent 

invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct 

was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and 

plaintiff's injury was within the general type of potential incidents and injuries that made 

defendant's conduct negligent." Solberg v. Johnson, 306 Or. 484, 490-91, 760 P2d 867 (1988). 

However, the general foreseeability standard may be subsumed by a special relationship between 

the parties that creates, limits, or defines the duty owed by defendant to plaintiff. Buchler v. 

State, 316 Or. 499, 504, 853 P.2d 798 (1993).

First, as stated above with the battery claim, the County’s deputies are charged with 

keeping the safety and security of the jail, and are justified in using reasonable amounts of 

physical force consistent with that goal. The County’s actions in booking Plaintiff and removing 

his handcuffs were reasonable under the circumstances. No reasonable juror could conclude that 

any action of a County deputy either breached a recognized duty or created a foreseeable risk of 

harm by either action. 

Further, with respect to the claims respecting Plaintiff’s service animal, it is not clear 

what County actions Plaintiff contends were negligent. The Portland Police Bureau took 

Plaintiff’s dog to Multnomah County Animal Services in East County. The Sheriff’s Office did 

not have Plaintiff’s animal because, due to Plaintiff’s recalcitrance, the Portland Police had taken 

Page 20 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 24 of 27
his service animal to a different location. This was not due to County action or inaction, and 

cannot constitute a claim for negligence.

Finally, Plaintiff also must be able to show actual injury by the actions or inactions of the 

County, as nominal damages are not available for a common law negligence claim, Bollam v. 

Fireman’s Fund Ins. Co., 302 Or. 343, 347–348, 730 P2d 542 (1986), and he must demonstrate a 

causal link between challenged conduct and this actual injury. See Joshi v. Providence Health 

Sys. of Or. Corp., 198 Or. App. 535, 545, 108 P3d 1195 (2005)(“Proof of cause-in-fact ‘must 

have the quality of reasonable probability, and a mere possibility that the alleged negligence of 

the defendant was the . . . cause of plaintiff’s injuries is not sufficient.’’ ’)(quoting Cleland v. 

Wilcox, 273 Or. 883, 887, 543 P2d 1032 (1975)).

Plaintiff can show neither actual injury nor the necessary causation element. There is no 

evidence of injury for Plaintiff being away from his service animal, and no causal link between 

the temporary time away from his service animal and any act by the County. Plaintiff claims 

injury to parts of his body, for example his neck, back, and shoulders, but refuses to describe 

how they are injured, deferring to his “medical records.” (Jones Decl, ¶ 2; Exhibit 1, p. 7). 

Additionally, Plaintiff is claiming permanent injury to his wrists, of the same type he alleges 

here, resulting from another handcuffing incident in Utah. (See Case No. 2:13-cv-00713-CWDBP, Docket #2, Complaint). Plaintiff cannot show actual injury stemming from any action by 

the County or City in this case, as opposed to another unrelated cause, and therefore cannot 

create a fact issue for trial on all necessary elements of a negligence claim.

/// /// /// 

/// /// ///

/// /// ///

Page 21 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 25 of 27
IX. CONCLUSION

For the above reasons, Defendant Multnomah County respectfully requests the Court 

grant judgment in its favor, dismissing this action with prejudice, and awarding the County its 

necessary and recoverable costs and disbursements incurred.

DATED this 9th day of October, 2015.

Respectfully submitted, 

JENNY M. MADKOUR, COUNTY ATTORNEY

FOR MULTNOMAH COUNTY, OREGON 

/s/ B. Andrew Jones

______________________________________________

B. Andrew Jones, OSB No. 091786

Assistant County Attorney

 Of Attorneys for Defendant Multnomah County

Page 22 – DEFENDANT MULTNOMAH COUNTY’S MOTION FOR SUMMARY 

JUDGMENT AND MEMORANDUM OF LAW

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 26 of 27
CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2015, I served the DEFENDANT MULTNOMAH 

COUNTY’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW 

IN SUPPORT OF on: 

Matthew T. Mglej

604 SE 67th Avenue

Hillsboro, OR 97123

Email: matthewmglej@gmail.com

by the following method or methods as indicated:

( X ) by mailing to said person(s) a true copy thereof, said copy placed in a sealed envelope, 

postage prepaid and addressed to said person(s) at the last known address for said 

person(s) as shown above, and deposited in the post office at Portland, Oregon, on the 

date set forth above.

( X ) by causing a true copy thereof to be emailed to said person(s) at the last known address 

for said person(s) as shown above, on the date set forth above.

( ) by mailing via certified mail, return receipt requested, to said person(s) a true copy 

thereof, said copy placed in a sealed envelope, postage prepaid and addressed to said 

person(s) at the last known address for said person(s) as shown above, and deposited in 

the post office at Portland, Oregon, on the date set forth above.

( ) by facsimile to said person(s) a true copy thereof at the facsimile number shown above, 

which is the last known facsimile number for said person(s) on the date set forth above. 

A copy of the confirmation report is attached hereto.

/s/ Ona Davis

___________________________________

Ona Davis

Paralegal

Page 23 – CERTIFICATE OF SERVICE

Multnomah County Attorney

501 S.E. Hawthorne Blvd., Ste. 500

Portland, Oregon 97214

(503) 988-3138

Case 3:15-cv-00096-MO Document 53 Filed 10/09/15 Page 27 of 27