Hall v. City of Portland

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH HALL, an individual, No. 3:22-cv-00074-HZ

Plaintiff, OPINION & ORDER

v.

THE CITY OF PORTLAND, a municipal

corporation; and EDWARD TEVIS

WHEELER, an individual,

Defendants.

Jacob Johnstun

Johnstun Injury Law LLC

1935 St. Helens St., Ste. A

St. Helens, OR 97051

Attorney for Plaintiff

Caroline Turco

William W. Manlove

Portland City Attorney’s Office

1221 SW 4th Ave., Rm. 430

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Joseph Hall brings this action under 42 U.S.C. § 1983 alleging violation of his

rights under the Fourteenth Amendment of the U.S. Constitution against the City of Portland and

Mayor Edward Tevis “Ted” Wheeler.1 Defendants move to dismiss Plaintiff’s Complaint for

failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons

explained below, the Court grants Defendants’ Motion to Dismiss.

BACKGROUND

Plaintiff alleges that on May 6, 2021, protests occurred in various areas of Portland,

Oregon, and that protesters systematically blocked traffic, openly carried firearms, destroyed

public and private property, and physically assaulted people passing by. Compl. ¶¶ 10–11,

ECF 1. Plaintiff was driving home from work at around 1:00 PM and did not know the

demonstrations were taking place. Compl. ¶ 13. At an intersection on his route home, Plaintiff’s

pickup truck was blocked by a group of protesters, and he was forced to stop. Compl. ¶¶ 13–14.

He rolled down the window to signify to the protesters which direction he was headed, and he

alleges that the protestors shouted slurs and pointed their firearms at him. Compl. ¶ 15. Plaintiff

warned the protestors that he would draw his own weapon for protection. Compl. ¶ 16. After a

brief standoff, the protesters temporarily moved out of Plaintiff’s path so he could continue.

Compl. ¶ 16.

But after driving several feet, Plaintiff stopped because believed something had struck the

rear of his pickup truck. Compl. ¶ 17. He left his vehicle running while he exited to see what had

happened. Compl. ¶ 17. After confirming that nothing had hit his truck, he returned to the

1 Plaintiff also brings claims under 42 U.S.C. § 1985 and 42 U.S.C. § 1986, which he voluntarily

dismisses. Pl. Resp. Def. Mot. Dismiss (“Pl. Resp.”) 13, ECF 11.

driver’s side door to find that his keys had been taken from the ignition. Compl. ¶ 18. Plaintiff

alleges he was trapped with nowhere to go, and that several people were pointing firearms at

him. Compl. ¶ 19. He then drew his concealed handgun and was subsequently tackled to the

ground and assaulted by the protesters. Compl. ¶ 20. Plaintiff alleges he suffered severe injuries,

including multiple rib fractures, a collapsed lung, a collapsed vertebra, a fractured left clavicle,

and cuts and abrasions. Compl. ¶ 25.

Plaintiff’s claim rests on the assertion that Defendants’ decision to “decline to enforce

public safety laws during Portland’s ongoing demonstrations” was the cause of his injury.

Compl. ¶ 2. Plaintiff claims that Mayor Wheeler and the City maintained a “strategy to limit

police intervention in protests and demonstrations and broadcast their intention to not intervene

in advance. Compl. ¶ 3. To show that the City was aware of a “substantial risk of physical harm

that would probably result” from ongoing protests, Plaintiff specifically references a press

conference on August 6, 2020, when Mayor Wheeler and Portland Police Bureau (“PPB”) Chief

Chuck Lovell denounced the violence and warned that the city anticipated more violence in the

immediate future. Compl. ¶ 3. Plaintiff argues that Defendants’ “dereliction of public duty [to

protect him] caused the violation of [his] substantive due process rights.” Compl. ¶ 24.

STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the

sufficiency of a complaint’s factual allegations, the court must accept all material facts alleged in

the complaint as true and construe them in the light most favorable to the non-moving party.

Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under

Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief”

with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations

must be enough to raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote

omitted).

To survive a motion to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-

pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id.

at 679.

DISCUSSION

I. Substantive Due Process

Plaintiff asserts that Defendants’ failure to protect him from being assaulted by protesters

violated his substantive due process rights under the Fourteenth Amendment. Defendants move

to dismiss Plaintiff’s Complaint for failure to state a claim. Defendants assert that because there

is no constitutional right to protection by the state, they cannot be held liable for Plaintiff’s

injuries.

The Due Process Clause of the Fourteenth Amendment provides, “[n]o State shall . . .

deprive any person of life, liberty, or property, without due process of the law.” U.S. Const.

amend. XIV, § 1. A “touchstone” of due process has been articulated as “protect[ing] . . . the

individual against arbitrary action of the government.” Cnty. of Sacramento v. Lewis, 523 U.S.

833, 845 (1998). The Supreme Court’s cases “dealing with abusive executive action have

repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary

in a constitutional sense.’” Id. at 846 (quoting Collins v. City of Harker Heights, Tex., 503 U.S.

115, 121 (1992)). For a plaintiff to prevail on a substantive due process claim, they must

establish that government actors engaged in official conduct that “shocks the conscience.” Id. If

the State defendant has time for deliberation, their actions meet the “shocks the conscience”

standard if the defendant acted with “deliberate indifference.” Id. at 851. By contrast, if the

defendant does not have time for deliberation, the standard is met only if the defendant acted

with a purpose to harm the plaintiff unrelated to any legitimate, governmental purpose. Id. at

853; see Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (determining that the “shocks the

conscience” standard requires the “more demanding showing [of] a purpose to harm [the

plaintiff] unrelated to legitimate law enforcement objectives.”).

A. No Constitutional Right to Protection by the State

Plaintiff argues that Defendants violated his constitutional rights by failing in their duty

to protect him from being assaulted by protesters. He alleges Defendants failed to protect the

constitutional rights of people within the city’s boundaries by allowing demonstrators to “openly

assault citizens”; conspiring to create and employ a policy of inaction; emboldening lawbreaking

demonstrators; announcing an intent to withhold meaningful police presence; encouraging the

“city-wide mayhem” by demonstrating alongside protesters; and publicly voicing tolerance

toward unlawful activity. Compl. ¶ 23. Plaintiff claims Defendants’ “dereliction of public duty

caused the violation of [his] substantive due process rights.” Compl. ¶ 24.

The Fourteenth Amendment Due Process Clause does not “impose an affirmative

obligation on the State”; rather, it is interpreted as a “limitation on the State’s power to act, not as

a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). In other words, the State is generally not liable

for its omissions. Martinez v. City of Clovis, 943 F.3d 1260, 1271(9th Cir. 2019) . “The

Fourteenth Amendment typically does not impose a duty on the state to protect individuals from

third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). The Fourteenth

Amendment “did not create a system by which police departments are . . . held financially

accountable for crimes that better policing might have prevented.” Town of Castle Rock, Colo. v.

Gonzales, 545 U.S. 748, 768–69 (2005).

There are two exceptions to the general rule that the Due Process Clause does not expose

the State to liability for acts of violence by private third parties. First, a special relationship

between the plaintiff and the State, such as a custodial relationship, may give rise to a

constitutional duty to protect. DeShaney, 489 U.S. at 198–200. Second, under the state-created

danger exception, the State may have a duty to protect a plaintiff if the State “affirmatively

places [them] in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’”

Patel, 648 F.3d at 971 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). Plaintiff does

not allege a special relationship between him and Defendants, so the first exception does not

apply. His claim falls under the second exception: that Defendants’ policing choices

affirmatively exposed Plaintiff to a known or obvious danger, and that Defendants acted with

deliberate indifference. See Compl. ¶¶ 3–4.

B. The State-Created Danger Exception

The State’s failure to protect an individual against acts of third parties may violate due

process where state action “affirmatively places the plaintiff in a position of danger.” Kennedy v.

City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). To make a successful claim under the

state-created danger exception, a plaintiff must establish three elements. See Hernandez v. City of

San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018). First, the plaintiff must show that the defendant’s

affirmative actions created or exposed the plaintiff to a “known or actual danger” that they

“would not otherwise have faced.” Kennedy, 439 F.3d at 1061. Second, the plaintiff must

establish that the injury they suffered was foreseeable. Martinez, 943 F.3d at 1271. Finally, the

plaintiff must establish that the defendant was “deliberately indifferent toward the known

danger.” Id.

i. Affirmative Acts

The relevant inquiry for the affirmative act element is whether the state action “create[s]

or expos[es] individuals to a danger they otherwise would not have faced.” Kennedy, 439 F.3d at

1062. The danger must be “actual” and “particularized,” and courts consider “whether the

officers left the person in a situation that was more dangerous than the one in which they found

[them].” Martinez, 943 F.3d at 1271 (citation omitted). The Ninth Circuit has only found a due

process violation in cases in which the defendant had contact with the victim or the third party

who injured them, and that contact placed the victim in harm’s way. See, e.g., Munger v. City of

Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th Cir. 2000); Penilla v. City of Huntington Park,

115 F.3d 707, 708 (9th Cir. 1997); Wood v. Ostrander, 879 F.2d 583, 586 (9th Cir. 1989).

In Munger, the police escorted a visibly intoxicated man out of a bar into sub-zero

temperatures. Munger, 227 F.3d at 1084. The police prohibited him from driving or returning to

the bar, and they watched as he wandered off alone toward a railyard. Id. The next morning, his

body was found just two blocks away. Id. at 1085. The court found that the officers had violated

his substantive due process rights because they had left him in a more dangerous situation than

he would have encountered had the officers not intervened. Id. In addition, the fact that the

officers searched for the man after he wandered away demonstrated that they were aware of the

danger they created for him. Id. at 1086.

Similarly, in Penilla, police officers engaged in an affirmative act by placing the plaintiff

in a more dangerous position than when they found him. Penilla, 115 F.3d at 708. After

responding to a 911 call and finding the plaintiff lying on the porch, the officers canceled a

request his neighbors had made for paramedics, broke open the front door, and dragged the

plaintiff into his own home, shutting and locking the door. Id. The next day, he was found dead

in his home. Id. As in Munger, the court found that the series of affirmative acts by police placed

the plaintiff at a higher risk of medical harm than he would have been in had they not intervened

in the first place. Id. at 710.

Finally, in Wood, a police officer pulled over a car and, after determining that the driver

was intoxicated, ordered the car to be impounded. Wood, 879 F.2d at 586. The officer left a

female passenger stranded alone at night in a high-crime area. Id. The woman began walking

home and was offered a ride by an unknown man, who took her to a secluded area and raped her.

Id. By leaving the woman alone in an area the officer knew to be dangerous, he had exposed her

to an actual and particularized danger to which, but for his intervention, she would not have been

exposed. Id. at 588. The court found that although the officer himself did not assault the woman,

“he [] acted in callous disregard for [her] physical security, a liberty interest protected by the

Constitution.” Id. at 589.

In Munger, Penilla, and Wood, actions taken by police officers exposed the plaintiffs to

known or actual dangers. In each case, the officers had contact with the plaintiff, and from that

contact, took a series of affirmative actions that placed the plaintiff in a situation that was more

dangerous than the one in which the police had found them. Because officers took actions that

were specific toward each plaintiff, the actions were “actual” and “particularized,” fulfilling the

requirement for an affirmative act that the plaintiff, distinguished from the public at large, face a

special danger. Martinez v. State of California, 444 U.S. 277, 285 (1980).

Hernandez v. City of San Jose provides an example more analogous to this case. 897 F.3d

at 1129. That case involved a clash between protesters and attendees of a rally for then-

presidential candidate Donald J. Trump. Id. at 1129–30. The Ninth Circuit found that the police

acted affirmatively to increase the danger to the plaintiffs by “(1) actively preventing the

attendees from leaving safely though alternative exits, (2) directed the attendees to leave from a

single exit, and (3) required the attendees to turn north . . . into a crowd of violent anti-Trump

protesters.” Id. at 1134 (internal quotations and brackets omitted). The attacks by protestors on

attendees of rally were a mere “possibility” when the event started, but “the Officers greatly

increased that risk of violence when they shepherded and directed the Attendees towards the

unruly mob waiting outside.” Id. The court held that the danger to the plaintiffs was actual and

particularized, because officers had witnessed violence against the plaintiffs earlier in the rally,

and officers had received reports that there had been attacks on the Trump supporters by anti-

Trump protesters. Id.

In contrast to Hernandez, in Johnson v. City of Seattle, the Ninth Circuit held that with

the discretionary crowd control measures taken by the police did not constitute affirmative acts.

474 F.3d 634 (9th Cir. 2007). In Johnson, an assistant police chief made a tactical decision

against ordering officers to enter a crowd during an unruly Mardi Gras celebration because “any

attempts by the police to disperse it would incite greater panic and violence, making the situation

worse.” Id. at 637. As the crowd activity grew more dangerous, the Seattle Police Department

maintained its strategy to refrain from intervening. Id. Several individuals who were assaulted

and injured by members of the crowd sued the City. Id. The court determined that the plaintiffs

failed to offer evidence that the police had engaged in an affirmative act that exposed the

plaintiffs to danger in violation of their substantive due process rights. Id. at 641. The police

department’s decision to switch to a more passive crowd control approach did not “place [the

plaintiffs] in any worse position than they would have been in had the police not come up with

any operational plan whatsoever.” Id. at 641.

The actions of Defendants here are closer to those of the officers in Johnson than to those

in Hernandez because none of Plaintiff’s allegations show that Defendants affirmatively created

an actual, particularized danger that he would not have otherwise faced. Defendants did not have

direct contact with Plaintiff and did not affirmatively steer him toward a certain crowd of

protesters. Plaintiff does not allege that police were present when he was assaulted.2 Plaintiff also

does not allege that the police had any contact with his attackers on the day of his attack. Thus,

Plaintiff was no more than a member of the “public at large,” and any danger posed by police

action (or inaction) was not directed specifically at him. See Martinez v. State of California, 444

U.S. at 285 (“[T]he parole board was not aware that appellants' decedent, as distinguished from

the public at large, faced any special danger.”). Plaintiff alleges no actions by Defendants

directed towards him that placed him in a worse position than if Defendants had not acted at all.

Even if there were a “policy of inaction” in place, a policy or decision found to be less

effective in hindsight is still not an affirmative act. Johnson, 474 F.3d at 641. “[E]ven if proved

not the most effective means to combat the violent conduct of private parties, the more passive

2 The Complaint is vague in its description of police activity when Plaintiff was attacked.

Plaintiff generally alleges that in response to protesters becoming violent on the day he was

attacked: “911 calls were placed for PPB to intervene. Yet, due to defendants’ policy of inaction,

PPB failed to respond in any meaningful manner.” Compl. ¶ 12. Plaintiff does not allege that

police were aware of violence against him or were present when he was attacked.

plan the police ultimately implemented . . . ‘placed the [plaintiffs] in no worse position than that

in which they would have been had the Defendants not acted at all.’” Id. (quoting DeShaney, 489

U.S. at 201). Thus, even an ineffective tactical or operational decision by law enforcement—

including one that fosters violence at protests—does not violate substantive due process if the

action does not affirmatively place a plaintiff in any greater danger than they would have been in

without intervention.

Here, because there was no contact between Plaintiff and Defendants or their agents to

create an actual or particularized danger, and because any decision made by Defendants was

discretionary, Defendants did not engage in an affirmative act as required for the state-created

danger exception to apply. Plaintiff claims that Defendants “embolden[ed] lawbreaking

demonstrators by habitually choosing to not disturb unlawful assemblies,” “announc[ed] an

intent to withhold meaningful police presence in advance of demonstrations,” and “publicly

voic[ed] tolerance and understanding toward lawbreaking demonstrators.” Compl. ¶¶ 23 (c), (d),

(f). But Plaintiff does not explain how Defendants’ announced policy of inaction, as he alleges,

qualifies as affirmative conduct that created a particularized danger for him. See DeMaria v.

Washington Cnty., 12 F. Supp. 2d 1093, 1099-1100 (D. Idaho 1996), aff’d, 129 F.3d 125 (9th

Cir. 1997) (“In every case where an officer stands by and does nothing, a claim could be raised

that the officer’s inaction emboldened the criminal. But DeShaney has clearly foreclosed these

claims.”).

Plaintiff argues that his claims are similar to those successfully brought by plaintiffs in

two out-of-circuit cases. In Dwares v. City of New York, the Second Circuit found that the

plaintiff had stated a claim that police officers violated his constitutional rights when they gave

prior assurances to a group of skinheads that they would not intervene if the skinheads attacked a

protestor who burned an American flag. 985 F.2d 94, 96-97 (2d Cir. 1993). And in Estate of

Rosenbaum v. City of New York, the district court found that plaintiffs had stated that “their due

process rights were violated by the City’s alleged implementation of a policy of restraint.” 975 F.

Supp. 206, 216 (E.D.N.Y. 1997). But in those cases, alleged direct communication between

police and private actors emboldened the violent activity against plaintiffs because the police had

reassured the private actors that they would not intervene.

Here, Plaintiff does not allege that Defendants gave his specific attackers any prior

assurances that their actions would be tolerated. Even taken as true, Mayor Wheeler’s statements

“announcing an intent to withhold meaningful police presence in advance of demonstrations” are

different from the direct assurances suggested in Dwares and Rosenbaum because in those cases,

the plaintiffs alleged specific assurances given to specific protesters, whereas Mayor Wheeler’s

comments were directed more generally to the community at large. Compl. ¶ 23 (d). Mayor

Wheeler’s statements are more like the actions of the police department in Johnson, where a

passive policing strategy provided no direct assurances to protesters and did not leave the

plaintiffs in a worse position than they otherwise would have found themselves. See Johnson,

474 F.3d at 641. Accordingly, Plaintiff fails to allege sufficient facts to establish that Defendants

engaged in an affirmative act as required to satisfy the first element of the state-created danger

exception.

ii. Foreseeability

Even if Defendants had engaged in an affirmative act that placed Plaintiff in danger, the

injury to Plaintiff was not a foreseeable result of the alleged action. For the state-created danger

exception to apply, a plaintiff must show that their “ultimate injury” was foreseeable. Martinez v.

City of Clovis, 943 F.3d at 1273. Defendants need not have foreseen the exact injury suffered by

the plaintiff; rather, “the state actor is liable for creating the foreseeable danger of injury given

the particular circumstances.” Id. at 1273–74. In addition, the foreseeable danger must fall within

the original risk affirmatively created by the state actor. Id.

A state actor can be held liable if they create conditions that foreseeably result in injury to

the plaintiff. For example, in L.W. v. Grubbs, it was foreseeable that a female nurse would be

attacked by a prisoner because the nurse’s supervisors assigned her to work with the prisoner

despite knowing that he had a history of “unrepentant violence against women,” that she would

be left alone with him and he would assault her if she was, and that she was unprepared to defend

herself against an attack. 974 F.2d 119, 121 (9th Cir. 1992), cert. denied sub nom. Grubbs v.

L.W., 508 U.S. 951 (1993). The court held that the nurse had stated a claim that her substantive

due process rights were violated because within these circumstances, the state had affirmatively

created the dangerous conditions from which it was foreseeable that the nurse would be attacked

by the inmate. Id. In Wood, on top of the officer’s affirmative act that created the danger to the

plaintiff, it was foreseeable that the female passenger was at risk of being sexually assaulted

when the officer left her alone in a high crime area without a way to get home. Wood, 879 F.2d

at 588.

But a state actor cannot be held liable for a third party’s actions if the injury to the

plaintiff is “too remote a consequence of the [state actor’s] action to hold them responsible[.]”

Martinez v. State of California, 444 U.S. at 285. In Martinez, a teenage girl was murdered by a

parolee five months after he was released from a state mental hospital. Id. at 279. Although the

state was “fully informed about his history, his propensities, and the likelihood that he would

commit another violent crime,” the Supreme Court held that the murder committed by the

parolee could not be “fairly characterized as state action.” Id. at 279, 285. Because there was no

indication that the victim faced any specifically particularized danger, and because she was

murdered five months after the parolee’s release, the Court determined that her injury was too

attenuated from the state’s decision to release her murderer to be foreseeable. Id. at 285.

Here, Defendants’ alleged “overt policy of inaction” is too attenuated from Plaintiff’s

injury to reasonably fall within the scope of an affirmative act by Defendants, such that the

injury would have been foreseeable. The only specific action by Defendants that Plaintiff alleges

is a statement Mayor Wheeler made at a press conference nine months before Plaintiff’s injury.

Plaintiff’s injury is too remote in time from Mayor Wheeler’s statement. Even if Plaintiff alleges

Defendants’ “action of inaction” was ongoing at the time of his attack, the particular danger to

him was no more significant or foreseeable than the danger posed to any other person in the City.

Plaintiff’s formulation of foreseeability is too broad; there is no evidence that Defendants could

foresee any greater risk to Plaintiff than to the general public. Because Defendants had no

contact with Plaintiff and made no assurances to his attackers, Defendants did not place Plaintiff

in a situation from which it was foreseeable that Plaintiff would be injured. Thus, Plaintiff fails

to allege sufficient facts to satisfy the second element of the state-created danger exception.

iii. Deliberate Indifference

Finally, even if Defendants acted affirmatively, they could not have acted with deliberate

indifference because the injury to Plaintiff was not foreseeable. A plaintiff must show that the

defendant was deliberately indifferent to the “known or obvious danger” facing them for the

state-created danger exception to apply. Hernandez, 897 F.3d at 1133. This is a “stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of [their] action.” Id. at 1135 (citations omitted). Deliberate indifference requires a

“culpable mental state,” higher than even gross negligence. Id. Thus, to claim deliberate

indifference, a plaintiff must allege facts showing that the defendant “recognize[d] [an]

unreasonable risk and actually intend[ed] to expose the plaintiff to such risks without regard to

the consequences.” Id. “In other words, the state actor must have known that something is going

to happen but ignored the risk and exposed the plaintiff to it anyway.” Id. (internal quotations

and citations omitted). The Ninth Circuit has reiterated that for state-created danger claims, the

deliberate indifference standard is “purely subjective.” Herrera v. L.A. Unified Sch. Dist., 18

F.4th 1156, 1160–61 (9th Cir. 2021).

To satisfy the deliberate indifference element, a plaintiff must show that the state actor

recognized and subsequently ignored a risk of harm to the plaintiff. For example, in reversing the

district court’s grant of summary judgment for the defendant police officer, the court in Wood

held that a jury could find that the officer knew of the danger to which he exposed the plaintiff

because of crime reports and his knowledge of the area in which he abandoned her. 879 F.2d at

590. Similarly, in Kennedy v. City of Ridgefield, a police officer knew of the plaintiff’s

neighbor’s violent tendencies because the plaintiff told him of past incidents of violence and

repeated her concerns about her family’s safety. 439 F.3d at 1064. After the neighbor shot her

and fatally shot her husband, the plaintiff sued the City for violating her substantive due process

rights under the state-created danger exception. Id. at 1062. The court held that by notifying the

neighbor of the allegations the plaintiff had made against him, despite his promise to the plaintiff

to the contrary, the officer demonstrated a deliberate indifference toward the plaintiff’s safety:

“[o]f all the possible actions he could take . . . he took the one most feared by Kennedy.” Id. at

1065.

The police officers in Hernandez demonstrated even greater indifference because the

officers were witnessing the violence firsthand. 897 F.3d at 1129. The officers knew that past

Trump rallies had turned violent and had received reports of violence early that day. Id. at 1138.

By choosing to block off exits and direct people towards the mob, the officers acted with

deliberate indifference to the safety of the protesters because they had immediate knowledge of

the violence and exposed the plaintiffs to it anyway. Id. at 1136.

On the other hand, in Patel v. Kent School District, the court found that a teacher was not

deliberately indifferent when she allowed a developmentally disabled student to use the

bathroom alone, where the student engaged in sexual conduct with another developmentally

disabled student. 648 F.3d at 976. Because the teacher did not know of any “immediate” risk, she

lacked the requisite culpable state of mind to establish deliberate indifference. Id. The teacher did

not intentionally expose the student to a known or obvious danger. Id.

Defendants here did not know of a specific risk to Plaintiff that they subsequently chose

to ignore. At the August 2020 press conference, nine months before Plaintiff’s injuries, Mayor

Wheeler and Police Chief Chuck Lovell warned of potential unlawfulness at future protests in

the city. While their statements reveal some acknowledgment of possible violence at protests,

neither their statements nor their actions expressed an intent to expose Plaintiff to that risk. And

Plaintiff does not allege that police were present at the protest when he was attacked and

specifically chose not to intervene. Thus, Plaintiff cannot establish that Defendants consciously

disregarded any consequences of a known or obvious danger to him.

Plaintiff argues that his allegations of Defendants’ awareness that some protests in

Portland in the summer of 2020 had become unruly show that Defendants were deliberately

indifferent to a risk that he would be attacked by protesters. The Court disagrees. To meet the

stringent standard for deliberate indifference, Plaintiff must allege facts showing that Defendants

were subjectively aware that Plaintiff was at risk of injury on May 6, 2021, the day that he was

allegedly attacked, and that Defendants intended to expose him to that risk. Defendants’

generalized awareness that some protests could become violent does not meet the “stringent

standard of fault” required for deliberate indifference. Plaintiff has not sufficiently alleged

deliberate indifference on the part of Defendants to support liability for a due process violation

under the state-created danger exception.

Because Plaintiff does not sufficiently allege facts showing that Defendants created the

danger which caused his injuries, his substantive due process claim fails. Neither the City nor

Mayor Wheeler violated Plaintiff’s constitutional rights by failing to protect him from the

independent actions of third-party protesters.

II. Monell Liability

A municipality cannot be held liable under § 1983 on the theory of respondeat superior.

Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 690–91 (1978). Liability can

only attach if the municipality itself causes the constitutional violation, either through a “policy

or custom, whether made by its lawmakers or those whose edicts or acts may be fairly said to

represent official policy.” Id.; see City of Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring

“a direct causal link between a municipal policy or custom and the alleged constitutional

deprivation”). The Ninth Circuit premises this liability upon (1) an official policy; (2) a

“longstanding practice or custom which constitutes the standard operating procedures of the local

government entity”; (3) the act of an official whose acts “fairly represent official policy such that

the challenged actions constitute[] official policy”; or (4) where an official with “final policy

making authority delegated that authority to, or ratified the decision, a subordinate.” Price v.

Sery, 513 F.3d 962, 966 (9th Cir. 2008).

Plaintiff correctly asserts that Mayor Wheeler has final policy-making authority for the

City. However, because Plaintiff fails to adequately allege a constitutional violation, there can be

no municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person

has suffered no constitutional injury at the hands of the individual police officer, the fact that the

departmental regulations might have authorized the use of constitutionally excessive force is

quite beside the point.”). As a result, Plaintiff’s claim against the City fails under Monell.

CONCLUSION

Construing all alleged facts in Plaintiff’s Complaint as true, the Court finds that Plaintiff

fails to adequately state a claim upon which relief may be granted. Defendant’s Motion to

Dismiss is GRANTED [9].

IT IS SO ORDERED.

DATED: ______A_u_g_u_s_t_ _2_2_, _2_0_2_2____.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge