Smith v. City of Dalles

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONNIE SMITH, Case No. 6:16-cv-1771-SI

Plaintiff, OPINION AND ORDER

v.

CITY OF DALLES, a Municipal

corporation, and KOJI NAGAMATSU, in his

individual and official capacity as City of the

Dalles Police Officer,

Defendants.

James E. Geringer, KLARQUIST SPARKMAN, LLP, 121 SW Salmon Street, Ste. 1600, Portland,

OR 97204. Of Attorneys for Plaintiff.

Gerald L. Warren, THE LAW OFFICE OF GERALD L. WARREN AND ASSOCIATES, 901 Capitol Street

NE, Salem, OR 97301. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiff Ronnie Smith filed this action pro se against the City of The Dalles (the City)

and Koji Nagamatsu, a police officer for the City. Plaintiff alleged that Officer Nagamatsu

falsely arrested and imprisoned Plaintiff, thereby violating Plaintiff’s Fourth and Fourteenth

Amendment rights in contravention of 42 U.S.C. § 1983. Plaintiff also alleged claims for false

arrest and imprisonment, negligence, and intentional infliction of emotional distress under state

law. The City and Officer Nagamatsu filed a motion for summary judgment. Defendants argued

that Plaintiff’s state law claims were barred under Oregon’s Tort Claims Act (OTCA) and also

failed on the merits. Defendants further argued that the Court should grant summary judgment on

Plaintiff’s federal claims because Officer Nagamatsu had probable cause to arrest Plaintiff after

the officer had conducted an investigatory stop of Plaintiff, placed handcuffs on Plaintiff,

searched Plaintiff and found cash suspected to be from a recent theft, and Officer Nagamatsu’s

partner had obtained an eyewitness identification of Plaintiff.

The Court granted summary judgment on Plaintiff’s state law claims for negligence and

intentional infliction of emotional distress as time-barred under the OTCA. Smith v. City of

Dalles, 2020 WL 265204, at *4 (D. Or. Jan. 17, 2020). For Plaintiff’s federal claims, the Court

found that probable cause existed for the arrest after the eyewitness identification, when

Defendants originally argued the arrest occurred. Id. at *2. The Court also concluded, however,

that disputed issues of material fact remained about whether it was lawful under the Fourth

Amendment for Officer Nagamatsu to place Plaintiff in “handcuffs before probable cause was

established,” to conduct a frisk of Plaintiff without a reasonable suspicion that he was armed and

dangerous, and to reach into his pocket and remove money as part of that search. Id. at *2-3. The

Court, therefore, denied Defendants’ motion for summary judgment on Plaintiffs’ federal claims

against Officer Nagamatsu. The Court granted summary judgment on Plaintiff’s Monell claim

against the City. Id. at *4. The Court later appointed counsel to represent Plaintiff at trial on his

remaining claims.

Now before the Court is a second motion for summary judgment filed by Defendants. In

this motion, Defendants argue that along with having probable cause at the time of the original

arrest, as argued in the first motion for summary judgment, Officer Nagamatsu had probable

cause to arrest Plaintiff at the time Officer Nagamatsu first placed Plaintiff in handcuffs. Thus,

argue Defendants, Plaintiff was not subject to an unconstitutional seizure when Officer

Nagamatsu placed Plaintiff in handcuffs, and Officer Nagamatsu’s search was incidental to arrest

and therefore lawful. Defendants argue that there is no issue of fact for the jury and this case

should not proceed to trial.

Plaintiff responds that Defendants should be estopped, at this late stage in the litigation,

from changing their argument about when Plaintiff’s arrest occurred, but if the Court permits

Defendants to change their position, then Plaintiff should be allowed to add a Fifth Amendment

claim because Plaintiff was questioned while under arrest and before he was given his Miranda

warning. Plaintiff argues that if, as Defendants now assert in their new argument, Plaintiff was

arrested when he was placed in handcuffs, then Officer Nagamatsu needed to give Plaintiff his

Miranda warning at that time and his failure to do so gives rise to a § 1983 claim.1 Thus,

Plaintiff moves for leave to amend his complaint to add a claim under the Fifth Amendment.

Plaintiff also argues that Defendants’ motion for summary judgment fails on the merits because

Officer Nagamatsu did not have probable cause to arrest Plaintiff when he placed Plaintiff in

handcuffs. For the reasons stated below, Defendants’ motion for summary judgment is denied,

and Plaintiff’s motion to amend is granted.

STANDARDS

A. Motion for Summary Judgment

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

1 Plaintiff cites Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009), but his proposed

claim would more readily fall under Tekoh v. County of Los Angeles, 985 F.3d 713 (9th

Cir. 2021).

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment,” 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,

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

B. Motion to Amend

Rule 15(a)(2) of the Federal Rule of Civil Procedure provides that the “court should

freely give leave [to amend a pleading] when justice so requires.” A district court should apply

Rule 15’s “policy of favoring amendments with extreme liberality.” Price v. Kramer, 200

F.3d 1237, 1250 (9th Cir. 2000) (simplified). The purpose of the rule “is ‘to facilitate decision on

the merits, rather than on the pleadings or technicalities.’” Novak v. United States, 795

F.3d 1012, 1020 (9th Cir. 2015) (quoting Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143, 1152 (9th

Cir. 2011)). A district court, however, may, within its discretion, deny a motion to amend “due to

‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, [and] futility of the amendment.’” Zucco Partners, LLC v.

Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (alteration in original) (quoting Leadsinger,

Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008)). “Not all of the factors merit equal

weight. As this circuit and others have held, it is the consideration of prejudice to the opposing

party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

1052 (9th Cir. 2003). Futility of amendment, however, “can, by itself, justify the denial of a

motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Generally,

however, “[a]bsent prejudice, or a strong showing of any of the remaining [four] factors, there

exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence

Capital, 316 F.3d at 1052 (alterations added, emphasis in original). When weighing the factors,

all inferences should be made in favor of granting the motion to amend. Griggs v. Pace Am.

Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).

Leave to amend may be denied if the proposed amendment is futile or would be subject

to immediate dismissal. Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th

Cir. 2011). An amendment is futile “only if no set of facts can be proved under the amendment to

the pleadings that would constitute a valid and sufficient claim or defense.’” Barahona v. Union

Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (quoting Sweaney v. Ada Cnty, 119

F.3d 1385, 1393 (9th Cir. 1997)). If the facts or circumstances possibly could “be a proper

subject of relief, [a plaintiff] ought to be afforded an opportunity to test his claim on the merits.”

Foman v. Davis, 371 U.S. 178, 182 (1962). The standard for assessing whether a proposed

amendment is futile therefore is the same as the standard imposed under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, see, e.g., Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

Cir. 1988), although “viewed through the lens of the requirement that courts freely give leave to

amend when justice so requires.” Barber v. Select Rehab., LLC, 2019 WL 2028519, at *1 (D. Or.

May 8, 2019) (quotation marks omitted).

BACKGROUND

On May 28, 2015, the manager at Grinders Coffee in The Dalles called 911 to report that

a man had attempted to steal a tip jar with cash from the coffee shop. The manager described the

suspect as wearing a white shirt with the letters “LA” and brown shorts, and said that he was

carrying a black backpack as he walked westbound on Third Street toward the Wells Fargo

Bank. The manager stated that she “believed” the man had money from the tip jar in his pocket

but stated, “I don’t know if he currently has any [money] on him.” ECF 86-1 at 2. Emergency

services (911) dispatched Officer Nagamatsu to investigate. The officer spotted Plaintiff walking

in front of the Wells Fargo Bank wearing a white shirt with the letters “LA” and carrying a black

duffle bag.

Officer Nagamatsu got out of his patrol car and asked Plaintiff to drop the bag and put his

hands behind his back. Plaintiff complied. Officer Nagamatsu put Plaintiff in handcuffs. As he

was doing so, he explained that he was detaining Plaintiff because he fit the description of the

suspect in the coffee shop tip jar theft. Officer Nagamatsu then performed a protective pat-down

of Plaintiff to ensure he was not carrying a weapon. During the pat-down, Officer Nagamatsu

discovered one $10 bill and six $1 bills “crumpled up” in Plaintiff’s pocket. While he was in

handcuffs, Plaintiff stated that he did not know what was going on and denied taking money

from the tip jar or having knowledge of the theft.

As Officer Nagamatsu detained Plaintiff, Officer Michael Waine interviewed witnesses at

the coffee shop, which was about a block from the Wells Fargo Bank. After Officer Nagamatsu

conducted the pat-down and discovered the money, Officer Waine radioed Officer Nagamatsu.

Officer Nagamatsu informed Officer Waine that he found one $10 bill and several $1 bills on

Plaintiff. Officer Waine reported that witnesses remembered a $10 bill being in the tip jar before

Plaintiff attempted to take the jar but not after. Officer Waine also confirmed from the coffee

shop that a witness positively identified Plaintiff as the suspect from that distance. Officer

Nagamatsu then read Plaintiff his Miranda rights and placed him in the back of Officer

Nagamatsu’s patrol vehicle. Officer Nagamatsu reported that Plaintiff made additional

statements when he was in the back of the officer’s car. Officer Nagamatsu transported Plaintiff

to the Northern Oregon Regional Correctional Facility for booking. Plaintiff was arrested,

booked, and arraigned on Theft III, a misdemeanor offense. Two years later, in 2017, he was

prosecuted, and found guilty. Plaintiff appealed, which entitled him to a trial de novo, and the

City dismissed the charge.

During Plaintiff’s trial, Officer Nagamatsu testified about the statements made by

Plaintiff both before and after Officer Nagamatsu provided Plaintiff with the Miranda warning.

There is a dispute about when Officer Nagamatsu began recording Plaintiff’s statement. Officer

Nagamatsu asserts in his police report that he turned on his recording device after giving Plaintiff

his Miranda rights. In his Amended Complaint, Plaintiff alleges that Officer Nagamatsu turned

on the recording device before reading Plaintiff his Miranda rights. At Plaintiff’s trial, Officer

Nagamatsu testified that he uses a digital recorder that he carries with him to record testimony.

Defendants submit a transcript of the audio recording from Officer Nagamatsu and describe it as

from the officer’s “body cam.” In the transcript of the audio recording of the interrogation of

Plaintiff, there is no mention that Officer Nagamatsu had informed Plaintiff of his Miranda

rights.

DISCUSSION

A. Motion for Summary Judgment

Defendants move for summary judgment on Plaintiff’s federal claims because, regardless

of Officer Nagamatsu’s subjective intent, Defendants argue that Officer Nagamatsu placed

Plaintiff under arrest when he put Plaintiff in handcuffs. Defendants assert that

Officer Nagamatsu objectively had probable cause to arrest Plaintiff at that time, and the Fourth

Amendment requires only objective, and not subjective, probable cause. Plaintiffs argue that

Defendants are estopped from raising this argument and, in any event, the argument fails on the

merits because Officer Nagamatsu did not have probable cause.

1. Judicial Estoppel

In Defendants’ first motion for summary judgment, they argued that Officer Nagamatsu

had probable cause to arrest Plaintiff based on eyewitness testimony, which occurred after

Officer Nagamatsu placed Plaintiff in handcuffs and conducted the patdown search. Plaintiff

responded that he was unlawfully arrested as soon as he was placed in handcuffs and that he was

unlawfully searched. Defendants replied to that argument by reiterating that Officer Nagamatsu

had probable cause at the time of the arrest, which occurred after the eyewitness identification,

and arguing:

The detention in handcuffs occurred prior to [Plaintiff’s] lawful

arrest because he had been identified as a suspect in a crime and

refused to identify himself to Officer Nagamatsu. Detaining a

criminal suspect in handcuffs before probable cause to arrest is

established is not unlawful.

ECF 61 at 2; see also id. at 3 (“The brief period of time plaintiff was detained enabled officers to

quickly interview the witnesses before making the arrest. After probable cause was clearly

established, Officer Nagamatsu read plaintiff his Miranda Rights and arrested him.”).

Defendants argued that Officer Nagamatsu’s detention and search of Plaintiff was lawfully

conducted under Terry v. Ohio, 392 U.S. 1 (1968).

The Court agreed with Defendants that probable cause existed for Plaintiff’s arrest after

the eyewitness identification. That issue did not appear to be disputed by Plaintiff (representing

himself at that time). The Court, however, rejected Defendants’ argument and found a genuine

issue in dispute whether the stop and frisk was lawful under Terry.

Plaintiff argues that Defendants should be estopped from asserting that probable cause

existed at the earlier time, when Officer Nagamatsu placed Plaintiff in handcuffs, because

Defendants previously asserted that the detention in handcuffs was not an arrest, but only a Terry

stop. A district court has discretion whether to impose judicial estoppel. New Hampshire v.

Maine, 532 U.S. 742, 750 (2001). In considering whether to apply judicial estoppel, a district

court may consider several questions, including:

(1) Is the party’s later position “clearly inconsistent with its earlier

position?” (2) Did the party succeed in persuading a court to accept

its earlier position, creating a perception that the first or second

court was misled? and (3) Will the party seeking to assert an

inconsistent position “derive an unfair advantage or impose an

unfair detriment on the opposing party?”

Baughman v. Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012) (quoting New

Hampshire, 532 U.S. at 750-51).

Regarding the first New Hampshire factor, Defendants’ current position is somewhat

inconsistent with Defendants’ previous position, but not “clearly” inconsistent. That Defendants

previously argued that Plaintiff was lawfully arrested at a later time is not necessarily

inconsistent with Defendants now arguing that Officer Nagamatsu had probable cause to arrest

Plaintiff at an earlier time. Defendants’ previous assertions, however, also appeared to suggest

that probable cause was not established at that earlier time. Defendants did not clearly articulate

that position, however, and the Court’s Order reflects the Court’s uncertainty about Defendants’

position in this regard. See, e.g., Smith, 2020 WL 265204, at *2 (“Defendants do not appear to

contend that probable cause had been established at that point [the time Plaintiff was placed in

handcuffs].”).

Regarding the second factor, although the Court found that probable cause existed at the

later time, Plaintiff did not appear to dispute that fact. The dispute was about the earlier point in

time, which is the time now at issue. Plaintiff argued that there was no probable cause to arrest

him when he was first handcuffed. Defendants argued that no probable cause was needed at that

time because it was a lawful Terry stop. The Court found that the initial Terry stop was lawful,

but the Court did not accept Defendants’ position that placing handcuffs on Plaintiff was

necessarily lawful under Terry and found an issue of fact on that portion of the Terry stop. Id.

at *2.

Regarding the third factor, Defendants will not derive an unfair advantage, particularly

given Plaintiff’s motion to amend his complaint to add his Fifth Amendment claim. If

Defendants now want to change their version of the factual chronology, then Plaintiff may raise a

new claim in response to Defendants’ new factual assertion. This issue is discussed below in

addressing Plaintiff’s motion to amend. The Court declines to apply judicial estoppel to

Defendants’ argument that probable cause applied earlier than previously asserted.

2. Merits Analysis

a. Legal Standards for Determining Probable Cause Under Federal Law

The Ninth Circuit has explained :

Probable cause to arrest exists when officers have knowledge or

reasonably trustworthy information sufficient to lead a person of

reasonable caution to believe an offense has been or is being

committed by the person being arrested. While conclusive

evidence of guilt is of course not necessary under this standard to

establish probable cause, mere suspicion, common rumor, or even

strong reason to suspect are not enough. Under the collective

knowledge doctrine, in determining whether probable cause exists

for arrest, courts look to the collective knowledge of all the officers

involved in the criminal investigation.

Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008) (quotation marks and

citations omitted). Probable cause does not require certainty, nor is it a “beyond a reasonable

doubt” standard. Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015).

“The determination of probable cause is based upon the totality of the circumstances known to

the officers at the time of the arrest.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th

Cir. 2015) (simplified). Officers, however, “may not ignore exculpatory evidence that would

‘negate a finding of probable cause.’” Yousefian, 779 F.3d at 1014 (quoting Broam v. Bogan, 320

F.3d 1023, 1032 (9th Cir. 2003)).

When the facts are undisputed, probable cause is a question of law for the court. See Scott

v. Harris, 550 U.S. 372, 381 n.8 (2007) (holding that what is “objectively reasonable” for an

officer to do under the Fourth Amendment is “a pure question of law”); Peng v. Mei Chin

Penghu, 335 F.3d 970, 979-80 (9th Cir. 2003) (“[W]here the material, historical facts are not in

dispute, and the only disputes involve what inferences properly may be drawn from those

historical facts, it is appropriate for this court to decide whether probable cause existed . . . .”).

“Where the facts or circumstances surrounding an individual’s arrest are disputed, the existence

of probable cause is a question for the jury.” Harper, 533 F.3d at 1022.

b. Application to Plaintiff’s Arrest

Defendants assert that probable cause existed to arrest Plaintiff when Officer Nagamatsu

placed Plaintiff in handcuffs. Defendants argue that a witness called 911, identified herself, and

described the suspect to the robbery, including what he was wearing, what he was carrying, and

in which direction he was walking. When Officer Nagamatsu arrived on the scene, he saw

Plaintiff, who matched the description given by the 911 caller. Defendants argue that the nexus

between the 911 caller’s descriptions and the officer’s observations of Plaintiff are objectively

reasonable evidence supporting probable cause.

Although there are some disputed facts involving Officer Nagamatsu’s questioning of

Plaintiff and the order of events, they do not relate to the issue of probable cause raised by

Defendants or the facts known by Officer Nagamatsu when he placed Plaintiff in handcuffs.

There is a transcript of the 911 call. Thus, the Court decides probable cause as a matter of law.

The Supreme Court and the Ninth Circuit have held that a contemporaneous, reasonably

specific, reasonably identifiable 911 description is sufficiently reliable to support a “reasonable

suspicion” required for a Terry stop. See, e.g., Navarette v. California, 572 U.S. 393 (2014);

United States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004). Defendants have not cited,

however, and the Court could not find, a case in which only a 911 physical description was

sufficient evidence on which to base probable cause to arrest someone. Indeed, in a similar case

involving a physical description sent over the police radio, the D.C. Circuit explained the

difference between a Terry stop and an arrest when officers are provided a physical description.

United States v. Short, 570 F.2d 1051 (D.C. Cir. 1978). The description of the perpetrator in that

case—which was more detailed than the description of Plaintiff that the manager provided

to 911—was a black male, 18-19 years old, 5’9 to 5’10 tall, 145 to 155 pounds, “with a short

Afro-bush haircut and dark complexion. He was described as wearing a camel-colored, waist-

length leather jacket and blue trousers.” Id. at 1053. Nonetheless, the D.C. Circuit held that

finding a suspect 1.5 blocks from the scene of a crime who matched the description, and who

walked away from police, did not constitute probable cause for arrest for burglary. Id. at 1053-

54. The court, however, explained:

The fact that there was no reasonable basis for an arrest does not

mean that the police officer could not take action on the basis of

the police radio run. When he saw the appellant [the officer] had a

reasonable, articulable suspicion that the appellant might be

connected with the crime, and this was sufficient to warrant an

investigative stop under Terry. Pursuant to such a stop the officer

was free to take the appellant to the nearby scene of the burglary

for possible identification, and such an identification would have

given the police officer probable cause for arrest. And a Terry stop

would have justified a patdown search for weapons.

Id. at 1054-55 (footnotes omitted).

The scenario described by the D.C. Circuit is substantially similar to what Officer

Nagamatsu did. He saw Plaintiff, had a reasonable suspicion that Plaintiff might be connected

with the theft, and stopped Plaintiff under Terry.2 It was only after obtaining the eyewitness

identification that Officer Nagamatsu believed he had the probable cause he needed for the

arrest.

The facts known to Officer Nagamatsu when he placed Plaintiff in handcuffs were that

Plaintiff matched the description of someone the coffee shop manager reported tried to take the

tip jar and possibly might have taken some money out of the tip jar. These facts are not

sufficient, by themselves, to establish probable cause to arrest Plaintiff for Theft III. They may

have provided Officer Nagamatsu with a “strong reason to suspect” Plaintiff, but that is “not

enough.” Harper, 533 F.3d at 1022. First, merely matching a physical description reported

over 911, without more, has not been held to be sufficient probable cause for arrest absent other

corroborating evidence, and the Court declines to so hold under these facts. Second, at the time

Officer Nagamatsu placed the handcuffs on Plaintiff, the officer did not even know if the crime

of Theft III had been committed because he did not know whether any money had been taken out

of the tip jar. The witness reported to 911 that she did not know whether money had been taken

out of the tip jar or whether the thief “currently has any [money] on him.” Defendants do not

argue that Officer Nagamatsu arrested Plaintiff for attempted theft when he placed the handcuffs

on Plaintiff and then later arrested Plaintiff for Theft III. Defendants’ motion for summary

judgment against Plaintiffs’ federal claims are denied.

2 The Court previously held that Officer Nagamatsu’s initial stop of Plaintiff was lawful

under Terry. The Court’s denial of summary judgment rested on events occurring after the initial

stop.

3. Plaintiff’s State Law Claim for False Arrest and Imprisonment

The Court previously summarized Plaintiff’s state law claims as including false arrest and

imprisonment, negligence, and intentional infliction of emotional distress. Smith, 2020

WL 265204, at *1. In their first motion for summary judgment, Defendants also characterized

Plaintiff’s state law allegations as including those three claims. The Court granted summary

judgment on Plaintiff’s state law claims for negligence and intentional infliction of emotional

distress, but was silent on Plaintiff’s state law claim for false arrest and imprisonment. Id. at *4.

The Court stated that Defendants’ first motion for summary judgment was denied as to all other

claims, thereby apparently leaving Plaintiffs’ state law false arrest and imprisonment claim for

trial, without specifically discussing that claim. Id. In Defendants’ current motion for summary

judgment, they argue that Plaintiffs’ Amended Complaint does not assert a claim for false arrest

and imprisonment under state law. The Court rejects this argument.

Because the Court’s previous summary judgment ruling under the OTCA was ambiguous

about Plaintiff’s state law false arrest and imprisonment claim, the Court now specifically

addresses that argument. The Court also addresses Defendants’ current motion for summary

judgment about probable cause when Plaintiff was handcuffed with respect to Plaintiff’s state

law claim.

a. OTCA

Defendants previously argued that Plaintiff “immediately believed” his confinement and

arrest was unlawful when it occurred and thus the claim was barred by the OTCA. The Court

first notes that Plaintiff gave notice under the OTCA within 180 days from when the charges

against him were dismissed. Plaintiff was confined, arrested, charged, arraigned, and released in

May 2015. He was not prosecuted until 2017, and was convicted of misdemeanor Theft III in a

jury trial on June 6, 2017. After Plaintiff appealed, which entitled him to a trial de novo in

Circuit Court, the City moved to dismiss the charges on February 8, 2018, and the court entered

the dismissal on February 9, 2018. Plaintiff sent his tort claim notice on March 25, 2018.

Under Oregon law, “‘false arrest’ and ‘false imprisonment’ contain identical legal

elements.” Fossen v. Clackamas Cnty., 271 Or. App. 842, 848 (2015). These elements are:

“(1) defendant must confine plaintiff; (2) defendant must intend the act that causes the

confinement; (3) plaintiff must be aware of the confinement; and (4) the confinement must be

unlawful.” Denucci v. Henningsen, 248 Or. App. 59, 67 (2012) (quoting Hiber v. Creditors Coll.

Serv., 154 Or. App. 408, 413 (1998)). A plaintiff must know, or reasonably should know, the

facts giving rise to a claim to trigger the OTCA 180-day deadline. Id. at 68. “The question of

what a plaintiff should have known, and when, is ordinarily a question for the jury.” Id.

As for when Plaintiff knew he had a cognizable tort such that he should have sent his tort

claim notice, the Court is persuaded by the analysis of the Oregon Court of Appeals in Denucci.

On the day of her arrest, plaintiff plainly knew that she had been

arrested. However, that fact alone was not enough to commence

the 180-day period. The facts must alert a plaintiff or a reasonable

person that three elements exist: “an injury occurred, the injury

harmed one or more of the plaintiff’s legally protected interests,

and the defendant is the responsible party.” Benson, 196 Or. App.

at 215, (emphasis added). That is, plaintiff had to know, or have

had a duty to learn, facts that would make an objectively

reasonable person aware of a substantial possibility that her arrest

harmed a legally protected interest.

If Henningsen had had probable cause to arrest plaintiff, the arrest

would not have harmed any legally protected interest that she had.

See, e.g., Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998).

Therefore, the 180-day period did not start until plaintiff knew, or

in the exercise of reasonable care should have known, facts that

would alert a reasonable person to a substantial possibility that her

arrest was unlawful.

Defendant offers, and we perceive, no reason to conclude that a

reasonable person would have known that her arrest was unlawful

on the day when it took place. Under these circumstances, we

cannot say, as a matter of law, that plaintiff had a duty to

investigate the legality of her arrest immediately after she was

arrested; nor can we say, if she had such a duty, when an

investigation would have yielded facts that would have alerted a

reasonable person to a substantial possibility that the arrest was

unlawful. Therefore, the question of when plaintiff knew or should

have known facts indicating that her arrest was unlawful must be

answered by a jury.

Id. at 69-70 (emphasis in original) (footnote omitted).

Plaintiff knew he was arrested on May 15, 2015, but although he may have believed his

arrest was without probable cause, a court does “not impute to an arrestee knowledge that she [or

he] was arrested without probable cause merely because she [or he] suffered the indignity of an

arrest.” Id. at 69 n.9. Plaintiff’s subjective belief that he did nothing wrong and

Officer Nagamatsu should not have placed Plaintiff in handcuffs is different from facts that

would alert a reasonable person to a substantial possibility that his arrest was unlawful,

particularly when Officer Nagamatsu states that he told Plaintiff that he matched the description

of the suspect of a theft. Thus, the Court does not find as a matter of law that Plaintiff’s claim is

time-barred under the OTCA. This issue is for the jury.

b. Probable Cause

In resolving Defendants’ first motion for summary judgment, the Court found that

Officer Nagamatsu had probable cause to arrest Plaintiff after the eyewitness identification. That

finding, however, does not resolve Plaintiff’s claim for the short time he was confined before the

eyewitness identification. The same concerns with the reasonableness of the investigatory stop

and search remain under Plaintiff’s state law claim as with Plaintiff’s federal law claim. See, e.g.,

State v. Rudder, 347 Or. 14, 24-25 (2009) (“[In an investigatory stop,] opening and inspecting

the contents of a suspect’s pocket—is a different matter. It is a form of search that is more

intrusive than a patdown and that normally only occurs incident to a lawful arrest, when police

are authorized to search the arrestee’s person and effects for evidence of the crime for which the

arrest was made.”).

Regarding whether Officer Nagamatsu had probable cause to arrest Plaintiff when he

placed Plaintiff in handcuffs, under Oregon law both subjective and objective probable cause is

required. See, e.g., State v. Vasquez-Villagomez, 346 Or. 12, 24 (Or. 2009) (“Under Article I,

section 9, of the Oregon Constitution, two components comprise probable cause: an officer must

subjectively believe that a crime has been committed and thus that a person or thing is subject to

seizure, and this belief must be objectively reasonable in the circumstances.” (simplified)).

Defendants do not assert that Officer Nagamatsu had a subjective belief that he had probable

cause to arrest Plaintiff until after the eyewitness identification, when Officer Nagamatsu gave

Plaintiff his Miranda warning and placed him in Officer Nagamatsu’s vehicle. Indeed, in Officer

Nagamatsu’s earlier declarations, in describing the events, he described that he arrested Plaintiff

after obtaining eyewitness identification and he described that chronology as explaining his

probable cause determination. Thus, Defendants fail to meet their burden to show at summary

judgment that probable cause existed under Oregon law at the time Officer Nagamatsu placed

Plaintiff in handcuffs.

4. Qualified Immunity

Defendants briefly argue that Officer Nagamatsu is entitled to qualified immunity for

making the purported arrest when he placed Plaintiff in handcuffs, even though Officer

Nagamatsu did not subjectively believe that he had probable cause to arrest Plaintiff at that time

and actually arrested Plaintiff later after conducting an investigation. Defendants’ entire

argument is that “[q]ualified immunity is warranted here because plaintiff’s arrest (i.e. at the time

of his handcuffing) followed the development of reasonable grounds to support probable cause

for plaintiff’s arrest and did not violate any clearly established constitutional law.” ECF 85 at 9.

The Court rejects this argument because the purported arrest at the time Officer Nagamatsu

placed handcuffs on Plaintiff did not follow the development of reasonable grounds to support

probable cause—the Court finds that Officer Nagamatsu did not have probable cause to arrest

Plaintiff at that time. Further, the purported arrest violated clearly established constitutional law.

The “relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). Thus, to withstand Defendants’

argument that Officer Nagamatsu has qualified immunity for Plaintiff’s federal claims stemming

from Plaintiff’s arrest, Plaintiff must show that a reasonable officer would not have arrested

Plaintiff for theft based on only the 911 call and the fact that Plaintiff matched the caller’s

physical description, without further corroborating evidence or conducting an investigation,

including investigating whether the suspect had taken money and a theft had even occurred.

As explained above, the information from the 911 call and Officer Nagamatsu’s

confirmation that Plaintiff matched the witness caller’s physical description is sufficient for an

investigatory (or Terry) stop. In 2015 it was clearly established, however, that such information

alone is not sufficient to make an arrest. As explained by the Ninth Circuit:

We decline to adopt Appellees’ argument that merely because

citizen witnesses are presumptively reliable, the officers in this

situation had no duty to examine further the basis of the witness’

knowledge or talk with any other witnesses. We agree with the

California Supreme Court that the general proposition that private

citizen witnesses or crime victims are presumed reliable does not

dispense with the requirement that the informant furnish

underlying facts sufficiently detailed to cause a reasonable person

to believe a crime had been committed and the named suspect was

the perpetrator.

Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991) (simplified)3; see also id. (“[W]e

agree with the Fullers that the police officers had a duty to conduct an investigation into the basis

of the witness’ report . . . .”). Moreover, at the time of Plaintiff’s purported arrest, the Ninth

Circuit had discussed the need for officers to investigate after a citizen report identifying a

suspect. See Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988) (denying qualified

immunity when officers failed to investigate after a citizen identification of a suspect).

At the time Officer Nagamatsu placed the handcuffs on Plaintiff, neither Officer

Nagamatsu nor Officer Waine had examined the basis of any eyewitness’s knowledge, including

the 911 caller. That is why Officer Nagamatsu subjectively did not place Plaintiff under arrest

until after Officer Waine had interviewed the eyewitnesses, obtained more information about the

alleged crime, obtained eyewitness identification that Plaintiff was the alleged perpetrator, and

obtained confirmation that money had been taken from the tip jar. Before that investigation,

however, back when Plaintiff was first placed in handcuffs, there was no probable cause to arrest

Plaintiff and no reasonable officer could have concluded that there was. See, e.g., Merriman, 856

F.2d at 1335 (“A reasonable police officer would have made further inquiry before effecting a

warrantless arrest.”).

B. Motion to Amend

Plaintiff moves for leave to file a Second Amended Complaint, adding a claim alleging

that Officer Nagamatsu violated Plaintiff’s Fifth Amendment rights by interrogating him before

giving a Miranda warning and including statements from that interrogation in his police report,

3 The “situation” in Fuller was that officers had been told by one witness that the

Appellants “had handled the missing ring before leaving the store and that no one else in the

store had the ring” and by another witness that one Appellant “had run into the rest room and

asked everyone to exit, and that she appeared to be attempting to make herself throw up—

conduct consistent with an attempt to dispose of the ring.” 950 F.2d at 1443.

which was introduced at Plaintiff’s trial, as well as testifying on the stand at Plaintiff’s trial about

statements made by Plaintiff. Defendants object, arguing that the proposed amendment is unduly

delayed and futile.

1. Futility

Defendants argue that the proposed amendment is futile because: (1) Plaintiff’s statement

was voluntary instead of coerced as required to state a Fifth Amendment claim; (2) Plaintiff

made his incriminating statement after Officer Nagamatsu gave the Miranda warning; and

(3) the claim is time-barred. The Ninth Circuit recently rejected Defendants’ first argument. In

Tekoh v. County of Los Angeles, the Ninth Circuit explained that a plaintiff “need only

demonstrate that he was in custody when he was questioned by [law enforcement] without

Miranda warnings” and that the district court erred by requiring the plaintiff “to prove that the

confession or statement was improperly coerced and not voluntary.” 985 F.3d 713, 725 (9th

Cir. 2021) (simplified). It is undisputed that Plaintiff was in custody and was questioned by

Officer Nagamatsu without Miranda warnings.

Defendants’ second argument is that Plaintiff made his incriminating statement that he

accidentally took the tip jar instead of his coffee after Officer Nagamatsu gave Plaintiff his

Miranda warning. There are two problems with this argument. The first is that the statement

about the tip jar is not the only statement used at Plaintiff’s trial, and other statements, although

not as incriminating, may have affected the jury’s verdict. There are at least some statements that

undisputedly were made before Plaintiff was Mirandized.

The second problem is that the sequence of events of Plaintiff’s questioning is not clear.

Officer Nagamatsu describes his pre-Miranda questioning in his police report, including that he

explained to Plaintiff that he met the description of the alleged thief, that Plaintiff denied taking

the money, that Plaintiff denied having knowledge of the crime, and that Plaintiff was

“uncooperative.” Officer Nagamatsu states that he read Plaintiff his Miranda rights and then

Officer Nagamatsu turned on the digital recorder.

The transcript of the recorded conversation between Plaintiff and Officer Nagamatsu

does not reflect any statement that Plaintiff had been read his Miranda rights. The transcript of

the recording opens with Officer Nagamatsu asking Plaintiff his name, which a reasonable jury

could conclude would be a question that Officer Nagamatsu would have asked during his early

questioning of Plaintiff, and not several minutes later in the encounter after Officer Nagamatsu

had questioned Plaintiff, searched Plaintiff, confirmed the eyewitness identification, and given

the Miranda warning. Indeed, in Officer Nagamatsu’s police report, he states that Plaintiff would

not tell him his name “at first” and Officer Nagamatsu could not locate Plaintiff’s wallet or

identification (presumably during the search, which occurred before the arrest), which appears to

support that the officer asked Plaintiff’s name at the beginning of his questioning, not later when

they were in the car. Additionally, the transcript shows that this conversation includes Plaintiff’s

repeated denials, which Officer Nagamatsu describes in his police report as taking place before

he gave Plaintiff his Miranda warning. Plaintiff also alleges in his Amended Complaint and his

proposed Second Amended Complaint that the recorded interrogation took place before he was

Mirandized. Thus, it is not clear whether the recorded conversation took place before or after

Plaintiff was given his Miranda warning. Indeed, in summarizing the facts of the case in their

pending motion for summary judgment, Defendants described the conversation between Plaintiff

and Officer Nagamatsu on the recording as taking place before Plaintiff was given his Miranda

warning. Defendants “corrected” that factual chronology in responding to Plaintiff’s

Interrogatories.

The timing of the recorded conversation is important because the alleged statement that

Plaintiff admitted to taking the tip jar purportedly took place right after Officer Nagamatsu

turned off his digital recorder. Defendants argue that because the recorded conversation took

place when the officer and Plaintiff were in the car and after Officer Nagamatsu Mirandized

Plaintiff, then this incriminating statement was made by Plaintiff after he was given his Miranda

warning. The record, however, is not clear about whether Plaintiff gave this statement before or

after he was Mirandized. The Court does not conclude that there are no set facts Plaintiff could

allege that would support that he made un-Mirandized incriminating statements that were used

against him at trial.

Defendants’ third argument is that the claim is time-barred. “It is well-established that

claims brought under § 1983 borrow the forum state’s statute of limitations for personal injury

claims.” Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026

(9th Cir. 2007). In Oregon, the personal injury limitations period is two years. Or. Rev. Stat.

§ 12.110. “Oregon’s discovery rule, however, also applies to claims asserted under § 1983.” Puff

Factory, LLC v. Port of Cascade Locks, 2020 WL 6547637, at *8 (D. Or. Nov. 6, 2020).

Defendants argue that Plaintiff had two years from the date Officer Nagamatsu used

Plaintiff’s incriminating statement at trial (June 2017) to allege Plaintiff’s Fifth Amendment

claim, and Plaintiff waited more than three years (January 2021) to move to amend. Plaintiff

responds that until Defendants changed their litigation argument and claimed that Plaintiff was

under arrest at the time Officer Nagamatsu placed Plaintiff in handcuffs, his pre-Miranda

interrogation was not a cognizable claim under Stoot. Plaintiff also argues that his pro se

pleading sufficiently put Defendants on notice of his Fifth Amendment claim because when

Plaintiff was proceeding pro se he attached to his Amended Complaint and incorporated by

reference documents that described a Fifth Amendment violation and asserted that Officer

Nagamatsu unlawfully interrogated Plaintiff without giving him a Miranda warning.

Additionally, Plaintiff argues that counsel for Defendants informed counsel for Plaintiff that

Defendants did not have and could not obtain a transcript of Plaintiff’s underlying criminal trial,

and without a transcript Plaintiff could not pursue a Fifth Amendment claim. Only after

significant effort by counsel’s firm was counsel able to obtain a transcript in December 2020.

The Ninth Circuit did not decide Tekoh until January 15, 2021, the day Plaintiff moved to

amend to add his Fifth Amendment claim. Plaintiff relied on Stoot in his motion. Stoot held that

a plaintiff may assert a Fifth Amendment claim when unlawful police interrogation techniques

result in a statement that has been “used” in a criminal case “when it has been relied upon to file

formal charges against the declarant, to determine judicially that the prosecution may proceed,

and to determine pretrial custody status.” Stoot v. City of Everett, 582 F.3d 910, 925 (9th

Cir. 2009).

In Tekoh, the Ninth Circuit addressed, as an issue of first impression, “whether the use of

an un-Mirandized statement against a defendant in a criminal case is alone sufficient to support

a 42 U.S.C. § 1983 action based on the Fifth Amendment violation.” 985 F.3d at 714 (emphasis

added). The Ninth Circuit rejected the district court’s approach of requiring “that the

interrogation that procured the statement was unconstitutionally coercive under the totality of the

circumstances, with the Miranda violation only one factor to be considered.” Id. at 714-15. The

Ninth Circuit “conclude[d] that where the un-Mirandized statement has been used against the

defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has

been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim

against the state official who deprived him of that right under § 1983.” Id. at 715. The Ninth

Circuit also concluded that when a police officer obtains the statement and includes it in a police

report, that officer “causes” the statement to be used against the defendant, even though the

officer is not the prosecutor. Id. at 724. Thus, even if the officer does not testify about

statements, but the prosecutor simply introduces the officer’s police report into evidence, the

officer may be held liable for the Fifth Amendment violation. Id. at 724-25; see also id. at 724

(“We do not hold that taking an un-Mirandized statement always gives rise to a § 1983 action.

We hold only that where government officials introduce an un-Mirandized statement to prove a

criminal charge at a criminal trial against a defendant, a § 1983 claim may lie against the officer

who took the statement.”).

It does not matter whether Plaintiff was arrested or was simply in custody when he was

questioned without being Mirandized. Both are potential violations. Thus, Defendants’ change in

theory of when Plaintiff was formally arrested did not create Plaintiff’s Fifth Amendment claim.

Defendants’ continuing changing factual assertions about when certain conversations between

Plaintiff and Officer Nagamatsu took place, however, are relevant considerations when

considering the discovery rule.

Considering all the unique circumstances here, there are several reasons this claim is not

futile as time-barred: (1) Plaintiff’s earlier pro se pleading that incorporated documents that

discussed the Fifth Amendment and Miranda violation, and therefore under the liberal pro se

pleading standard arguably allows this claim to relate-back, even though the Court interpreted

that pleading as not including a Fifth Amendment claim; (2) the requirement that the statement

must have been “used” at trial and Defendants’ contention that no trial transcript was available

until appointed counsel obtained a transcript in December 2020, thereby putting Plaintiff on

notice of the elements of his claim under the discovery rule at that time, particularly considering

the difficulty a pro se, incarcerated plaintiff would have in obtaining that transcript earlier when

a municipality declared it was unable to obtain it; (3) Defendants’ changing and internally

inconsistent assertions about the chronology of facts in this case, which again raises the

discovery rule; and (4) Tekoh’s recent decision holding as a matter of first impression that the

use of a defendant’s un-Mirandized statement alone in the prosecutor’s case-in-chief may give

rise to a § 1983 claim against the officer who took the statement. The Court, therefore, finds that

there may be some set of facts that can be proved under the proposed amendment that would

constitute a timely and valid Fifth Amendment claim. Barahona, 881 F.3d at 1134.

2. Undue Delay

Defendants argue that Plaintiff should have brought this claim in his earlier complaints in

this case. For the reasons the Court found that this claim is not time-barred, it is not unreasonably

delayed.

3. Prejudice

Defendants do not argue prejudice as a reason the Court should deny Plaintiff’s motion to

amend. In the conclusion of their opposition to the motion, however, Defendants state in a

conclusory manner that granting Plaintiff’s motion would cause them prejudice. Defendants

contend that having to defend a formerly unknown claim would be prejudicial. That is not

sufficient prejudice to deny a motion to amend—otherwise all motions to amend would be

subject to this form of prejudice. The Court notes, however, that while this motion was being

briefed, discovery closed in this case. The Court previously had granted Defendants leave to

depose Plaintiff. Defendants elected not to do so. Counsel for Defendants apparently

communicated to Plaintiff’s counsel that Defendants’ counsel did not believe that additional

discovery would be required if the Court allowed Plaintiff to add this claim. Nevertheless, if

Defendants believe that additional reasonable discovery, including taking Plaintiff’s deposition,

is required, Defendants may move to reopen discovery.

4. Dismissed Claims

The Court notes that the proposed Second Amended Complaint contains claims against

which the Court granted summary judgment. Plaintiff clarifies that he includes these claims only

for appellate purposes and acknowledges that he will pursue in this litigation only the claims the

Court has allowed to continue. Those claims are Plaintiff’s state law claim for false arrest and

imprisonment, federal claim under the Fourth and Fourteenth Amendments, and federal claim

under the Fifth Amendment.

CONCLUSION

The Court DENIES Defendants’ Motion for Summary Judgment (ECF 85). The Court

finds as a matter of law that Officer Nagamatsu did not have probable cause to arrest Plaintiff at

the time Officer Nagamatsu first placed Plaintiff in handcuffs. The Court GRANTS Plaintiff’s

Motion for Leave to File Second Amended Complaint (ECF 95), although Plaintiff may change

his Stoot references to Tekoh. Plaintiff may file his Second Amended Complaint within 14 days

of this Opinion and Order.

IT IS SO ORDERED.

DATED this 17th day of March, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge