Carmona-Perez v. City of Salem

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSE ARTEMIO CARMONA-PEREZ, Case No. 6:20-cv-00186-IM

Plaintiff, OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART

v. DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

CITY OF SALEM, et al.,

Defendants.

Juan C. Chavez, PO Box 5248, Portland, OR 97208. Maya Rinta, Albies & Stark LLC, 1 SW

Columbia St. #1850, Portland, OR 97204. Attorneys for Plaintiff.

Sebastian Tapia and Daniel B. Atchison, City of Salem, Legal Department, 555 Liberty Street

SE, Salem, OR 97301. Jennifer M. Gaddis, Garrett Hemann Robertson P.C., PO Box 749, Salem,

OR 97308. Attorneys for Defendants.

IMMERGUT, District Judge.

This action arises from an encounter between Jose Artemio Carmona-Perez and police

officers on February 28, 2018, in Salem, Oregon. Plaintiff Carmona-Perez (“Plaintiff”) filed suit

against Defendants City of Salem, Sergeant Michael Baskett, Officer Daniel Chase, and Officer

Thomas Ammon (collectively, “Defendants”). Compl., ECF 2; First Am. Compl. (“FAC”), ECF

46. Plaintiff brings the following claims: (1) a Fourth Amendment claim under 42 U.S.C. § 1983

against Sergeant Baskett and Officers Chase and Ammon; (2) a Monell claim under § 1983

against the City; (3) a state-law negligence claim against the City; and (4) a state-law battery

claim against the City. This matter comes before the Court on Defendants’ Motion for Summary

Judgment as to all claims. Defs.’ Mot. for Summ. J. (“MSJ”), ECF 63. This Court held a hearing

on Defendants’ motion on September 18, 2023. Mins. of Proceedings, ECF 98.

After considering the record, written briefs, and arguments of counsel, this Court

GRANTS in part and DENIES in part Defendants’ motion for summary judgment. The Court

grants the motion as to the Monell claim and the state-law negligence claim. The Court denies

the motion as to the state-law battery claim. As to the Fourth Amendment claim, the Court

concludes that the take-down was a reasonable use of force as a matter of law, but even assuming

it was an unreasonable exercise of force, the officers are entitled to qualified immunity for this

conduct. Therefore, this Court grants Defendants’ motion as to the take-down. However, there

are issues of material fact as to whether a constitutional violation occurred regarding the use of

“palm strikes” once Plaintiff was on the ground, and whether Defendants Chase and Baskett are

entitled to qualified immunity for this conduct. Accordingly, this Court denies Defendants’

motion as the the palm strikes with respect to Officer Chase and Sergeant Baskett.

BACKGROUND

On February 27, 2018, Sergeant Baskett learned from another officer that Carmona-Perez

“had a confirmed felony warrant for his arrest and had recently been indicted on several

domestic violence charges, including Assault I (Class A Felony) for attempting to run over the

victim with a motor vehicle.” Baskett Decl., ECF 64 ¶ 2; Gaddis Decl., Ex. C, ECF 83-1 at 26:7–

11 (“Another Sergeant advised me that [Carmona-Perez] had been indicted on a domestic crime,

including Attempted Assault 1, and he wanted us to go try to find [Carmona-Perez] and take him

into custody because he also had a warrant for his arrest.”). Sergeant Baskett also learned that

Carmona-Perez had a warrant for his arrest that was issued in 2016. Baskett Decl., ECF 64 ¶ 2.

While the February 2018 indictment does not appear in the record, the 2016 warrant does.

That warrant includes the following offenses: assault in the fourth degree constituting domestic

violence in violation of O.R.S. 163.160 (Class A misdemeanor); burglary in the first degree in

violation of O.R.S. 164.225 (Class A felony); assault in the fourth degree constituting domestic

violence in violation of O.R.S. 163.160 (Class C felony); burglary in the first degree in violation

of O.R.S. 164.225 (Class A felony); strangulation constituting domestic violence in violation of

O.R.S. 163.187 (Class C felony); unlawful use of a weapon in violation of O.R.S. 166.220 (class

C felony); and burglary in the first degree in violation of O.R.S. 164.225 (Class A felony).

Gaddis Decl., Ex. G, ECF 83-5.

The following day, February 28, Sergeant Baskett was informed that Carmona-Perez was

at a local bar, and Sergeant Baskett took Officers Chase and Ammon with him to arrest

Carmona-Perez. Baskett Decl., ECF 64 ¶¶ 3–4; Chase Decl., ECF 65 ¶ 2; Ammon Decl., ECF 66

¶ 2. Before performing the arrest, the officers performed a Law Enforcement Data Systems

(“LEDS”) review of Carmona-Perez, and they learned that his record “listed ‘cautions’ for

Assault II (Class B Felony) and Unlawful Use of a Weapon (Class C Felony), as well as a past

history of Resisting Arrest (Class A Misdemeanor).” Baskett Decl., ECF 64 ¶ 5; Chase Decl.,

ECF 65 ¶ 4; Ammon Decl., ECF 66 ¶ 4; see also Gaddis Decl., Ex. C, ECF 83-1 at 29:7–14.

When the officers arrived, Carmona-Perez was sitting on a chair at an electronic

gambling machine. Baskett Decl., ECF 64 ¶ 8; Chase Decl., ECF 65 ¶ 7; Ammon Decl., ECF 66

¶ 7; Carmona-Perez Decl., ECF 72 ¶ 4; Rinta Decl., Ex. 2 (“Surveillance Video”), ECF 73-2 at

00:00–00:10. The officers approached Carmona-Perez from behind and surrounded him on all

sides, with Officer Ammon grabbing his left arm and Officer Chase grabbing his right. Sergeant

Baskett stood directly behind Carmona-Perez. The officers were all in uniform. Surveillance

Video, ECF 73-2. Despite that all three officers were in uniform, Carmona-Perez claims that

“[a]t the time, [he] did not realize they were law enforcement officers.” Carmona-Perez Decl.,

ECF 72 ¶ 4; Gaddis Decl., Ex. D, ECF 83-2 at 43:9–14.

The parties agree, and the surveillance video reflects, that Officer Chase said something

to Carmona-Perez at the beginning of the encounter, ECF 73-2 at 00:04–00:08, but the parties

disagree about what was said. Defendants allege that Officer Chase “identified [him]self as a

police officer and told [Carmona-Perez] that he was under arrest.” Chase Decl., ECF 65 ¶ 8;

Baskett Decl., ECF 64 ¶ 9; Rinta Decl., Ex. 3, ECF 73-3 at 50:21–23; Rinta Decl., Ex. 7, ECF

73-7 at 1 (Marion County Probable Cause Statement and Data Sheet completed by Officer

Chase) (“I told Jose that he was under arrest for a warrant.”). Plaintiff alleges that Defendants

only asked him if he was “Jose.” Carmona-Perez Decl., ECF 72 ¶ 6. According to Plaintiff,

Defendants did not identify themselves as police officers nor inform him he was under arrest. Id.

(“I don’t remember Defendants saying anything to me in English or in Spanish prior to taking me

to the ground: they did not tell me who they were, they did not explain what was going on, they

did not say I was under arrest, and they did not give me any directions or commands.”).

Next, the officers claim that, when they grabbed Carmona-Perez’s arms, he “tense[d] up”

and “attempt[ed] to pull away.” Ammon Decl., ECF 66 ¶ 9; Baskett Decl., ECF 64 ¶ 10; Chase

Decl., ECF 65 ¶ 9. Sergeant Baskett admits to “push[ing] [Carmona-Perez] forward toward the

poker machine to try and prevent him from pulling away.” Baskett Decl., ECF 64 ¶ 10.

The surveillance video shows Carmona-Perez’s body shifting toward Officer Chase, ECF

73-2 at 00:07–00:09, and then shifting toward the gambling machine, id. at 00:09–00:11. It is

unclear from the video whether Carmona-Perez tensed up or pulled away.

When Sergeant Baskett pushed Carmona-Perez forward, he “realized that the poker

machine’s glass screen could potentially shatter,” Baskett Decl., ECF 64 ¶ 10, so he “directed the

other officers to take [Carmona-Perez] to the floor in order to gain better control of him,” id.

¶ 11. Sergeant Baskett and Officer Chase took Carmona-Perez to the ground. Ammon Decl.,

ECF 66¶ 10; Chase Decl., ECF 65 ¶ 10. The surveillance video shows Officer Ammon losing

control of Carmona-Perez’s left arm as they went to the ground, ECF 73-2 at 00:12–00:14, and

Officer Chase claims that he lost control of Carmona-Perez’s right arm, Chase Decl., ECF 65

¶ 10. Once on the ground, Carmona-Perez was face down. Baskett Decl., ECF 64 ¶ 11; Chase

Decl., ECF 65 ¶ 14; Ammon Decl., ECF 66 ¶ 10; Carmona-Perez Decl., ECF 72 ¶ 7.

As Defendants conceded at oral argument, the parties disagree about whether Carmona-

Perez resisted once he was on the ground. Defendants allege that Carmona-Perez “kept his hands

underneath his body, repeatedly kicked his legs and squirmed his body away from us.” Baskett

Decl., ECF 64 ¶ 13; Chase Decl., ECF 65 ¶ 12; Ammon Decl., ECF 66 ¶ 12. According to the

officers, Carmona-Perez seemed to be reaching toward his waistband. Baskett Decl., ECF 64

¶ 12; Chase Decl., ECF 65 ¶ 11; Ammon Decl., ECF 66 ¶11. Plaintiff alleges that “[t]hroughout

this interaction, [he] was unarmed, [he] did not attempt to flee, [he] did not fight the officers or

anyone else, and [he] did not use or reach for any weapon including in [his] waistband.”

Carmona-Perez Decl., ECF 72 ¶ 9.

Once on the ground, the parties moved out of the view of the bar’s surveillance camera.

Surveillance Video, ECF 73-2 at 00:14. At some point after the parties moved to the ground, a

witness to the encounter began filming. Rinta Decl., Ex. 1 (“Witness Video”), ECF 73-1. As

corroborated by that video, the officers gave commands to stop resisting while Carmona-Perez

was on the ground. Id. at 00:18, 00:45–00:47; Baskett Decl., ECF 64 ¶ 13; Chase Decl., ECF 65

¶ 12; Ammon Decl., ECF 66 ¶ 12.

While Carmona-Perez was face down on the ground, Officer Chase struck him several

times on the back of the head. Chase Decl., ECF 65 ¶ 16 (“I delivered several palm strikes to the

back of [Carmona-Perez]’s head.”); Baskett Decl., ECF 64 ¶ 14. Carmona-Perez states that he

“believe[s] [he] passed out for a while.” Carmona-Perez Decl., ECF 72 ¶ 7. The officers state

that Carmona-Perez’s “body relaxed” after Officer Chase delivered the palm strikes. Baskett

Decl., ECF 64 ¶ 14; Chase Decl., ECF 65¶ 16; see Ammon Decl., ECF 66 ¶ 13; Rinta Decl., Ex.

3, ECF 73-3 at 82:9–10; Rinta Decl., Ex. 7, ECF 73-7 at 2. Officer Ammon then handcuffed

Carmona-Perez, and the officers allege that he continued to resist. Baskett Decl., ECF 64 ¶ 14;

Chase Decl., ECF 65 ¶ 16; Ammon Decl., ECF 66 ¶ 13.

The parties dispute whether any commands were given in Spanish. Officer Chase claims

that, after Carmona-Perez was handcuffed, Carmona-Perez “sa[id] something in Spanish” and so

Officer Chase “gave the commands in Spanish.” Chase Decl., ECF 65 ¶ 17. Carmona-Perez

claims that he “do[esn’t] recall any of the officers saying anything in Spanish, or giving [him]

any warnings, directions, or commands in Spanish, while [he] was on the ground.” Carmona-

Perez Decl., ECF 72 ¶ 8.

Carmona-Perez attests that “[he] experienced extreme pain in [his] head, neck, back, and

wrists. [He] experienced the pain for a long time which made it hard for [him] to sleep

continuing to present. [He] used to be able to sleep facing up, but now cannot sleep face-up due

the continued pain in [his] back. It also negatively impacted [his] eyesight and memory.” Id.

¶ 12. He filed a complaint with the Salem Police Department in July 2018. Id. ¶ 13. Investigator

Stephen Smith concluded that “no evidence of misconduct by any of the officers involved” was

found. Rinta Decl., Ex. 8, ECF 74 at 7. Investigator Smith’s report also states that “the Use of

Force Review Board has reviewed the incident and the lead Defensive Tactic Instructor has

found the force used was justified and in accordance with department training.” Id.

Plaintiff Carmona-Perez filed suit against Defendants in federal court on February 3,

2020. Compl., ECF 2; FAC, ECF 46. Plaintiff brings Fourth Amendment and Monell claims

pursuant to 42 U.S.C. § 1983. FAC, ECF 46 ¶¶ 26–30. Plaintiff also brings supplemental state-

law claims for negligence and battery against the City. Id. ¶¶ 17–25. Defendants move for

summary judgment on all of Plaintiff’s claims. MSJ, ECF 63.

STANDARDS

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 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). The court is not required to accept a non-movant’s version of events when it is “clearly

contradict[ed]” by a video in the record. Scott v. Harris, 550 U.S. 372, 378–81 (2007).

DISCUSSION

The Court first addresses Defendants’ evidentiary objections to materials introduced by

Plaintiff in his response to the motion for summary judgment. Next, the Court addresses the

Fourth Amendment claim, beginning with the liability of the individual officers, moving to the

supervisory liability of Defendant Baskett, and then moving to the municipal liability of the City.

Last, the Court addresses the state-law claims of negligence and battery.

A. Evidentiary Disputes

Pursuant to Federal Rule of Civil Procedure 56(c)(2),1 Defendants object to materials

offered by Plaintiff in his response to the motion for summary judgment. Defs.’ Am. Reply to

Pl.’s Resp. to MSJ (“Am. Reply”), ECF 82 at 1. Defendants contend that Plaintiff offered

“[m]aterials that are inadmissible and will remain inadmissible at trial,” which “cannot be

considered in opposition to a motion for summary judgment.” Id. Those materials include (1) the

statement of a witness to the encounter, which Defendants argue is inadmissible hearsay; (2) an

internal report on use of force from the Salem Police Department, which Defendants argue is

irrelevant; (3) complaints made against Officer Ammon and Sergeant Baskett, which Defendants

argue are irrelevant and inadmissible character evidence; and (4) text messages between Officers

Ammon and Chase, which Defendants argue are irrelevant. Am. Reply, ECF 82 at 1–4. The

Court addresses these objections in turn.

1. Witness Statement

Defendants argue that the Court should exclude as inadmissible hearsay a statement made

by a witness to the encounter between the officers and Plaintiff. That witness allegedly “made a

comment” to Sergeant Baskett regarding Carmona-Perez “not speaking English.” Rinta Decl.,

Ex. 6, ECF 73-6 at 2. It does not appear that Plaintiff deposed this individual.

Plaintiff responds that “to survive summary judgment, a party does not necessarily have

to produce evidence in a form that would be admissible at trial.” Pl.’s Sur-Reply (“Sur-Reply”),

1 Defendants refer to it as Rule 56(a)(2) in their reply, ECF 82 at 1, but that rule does not

exist. The Court construes these as objections lodged under Rule 56(c)(2).

ECF 91 at 2 (quoting Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003)). However,

“[t]he burden is on the proponent to show that the material is admissible as presented or to

explain the admissible form that is anticipated.” Fed. R. Civ. P. 56 advisory committee’s note to

2010 amendment. Plaintiff suggests that the statement “could come into trial through several

means, including through the speaker themselves if identified and compelled to present

testimony at trial.” Sur-Reply, ECF 91 at 2. Plaintiff fails to identify the witness or explain how

that witness would come to be present at trial, or how the statement would be introduced. This is

insufficient to show that the hearsay statement would be admissible.

Ultimately, the Court does not rely on this piece of evidence in the analysis below, and so

declines to decide its admissibility for purposes of this summary judgment motion.

2. Use of Force Data

Defendants further argue that the Salem Police Department’s internal report from 2020

on all instances of use of force is irrelevant and should be excluded under Federal Rule of

Evidence 403. Am. Reply, ECF 82 at 3. Plaintiff responds that the data “goes to Plaintiff’s

burden for Monell claims to demonstrate deliberate indifference to, ratification of, and

encouragement for a pattern and practice of illegal conduct.” Sur-Reply, ECF 91 at 4.

“Because the court ‘can award summary judgment only when there is no genuine dispute

of material fact,’ it cannot rely on irrelevant, vague, ambiguous, or otherwise insufficiently-

probative evidence.” W. All. Bank v. Jefferson, No. 2:14-CV-00761 JWS, 2015 WL 7075171, at

*6 (D. Ariz. Nov. 13, 2015) (quoting Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110,

1119 (E.D. Cal. 2006)), aff’d, 698 F. App’x 914 (9th Cir. 2017). This Court does not find a

report of all use of force incidents to be relevant for purposes of this motion and does not

consider it.

3. Complaints against Officer Ammon and Sergeant Baskett

Next, Defendants argue that complaints made against Officer Ammon and Sergeant

Baskett for alleged uses of excessive force following the incident with Plaintiff should be

excluded as irrelevant and improper character evidence under Federal Rule of Evidence 404.

Am. Reply, ECF 82 at 3. Plaintiff responds that subsequent excessive force complaints

“demonstrate[] that the Defendant City condones of and continues to harbor a pattern and

practice of excessive force against the people of Salem.” Sur-Reply, ECF 91 at 4–5. Plaintiff

offers the complaint as part of pattern of the City “not giv[ing] [Officer] Ammon counseling,

corrective action, or discipline” with regard to excessive force allegations, which is arguably

relevant to the Monell claim. Resp., ECF 71 at 7. This Court does not consider subsequent use of

force complaints in analyzing this motion with respect to the claims that are brought individually

against the officers as Plaintiff has failed to show how such unsubstantiated complaints are

admissible.

The Court does not address the admissibility of this evidence should it be introduced at

trial.

4. Text Messages Between Officers Ammon and Chase

Last, Defendants argue that text messages between Officers Ammon and Chase should be

excluded as irrelevant. Am. Reply, ECF 82 at 3–4. Plaintiff argues that “the text messages are

relevant to witness credibility and the culture of impunity fostered by the City’s pattern and

practice of civil rights violations.” Sur-Reply, ECF 91 at 5. In these messages, the officers

discuss Officer Chase’s deposition and Officer Ammon’s preparation for his own deposition.

Rinta Decl., Ex. 10, ECF 73-9 at 1. As with the other materials discussed above, the Court will

consider this evidence only for purposes of the Monell claim as witness credibility

determinations at this stage of the proceeding are not appropriate. The Court declines to address

the admissibility of this evidence should it be introduced at trial.

B. Federal Claims Under 42 U.S.C. § 1983

Defendants argue that they are entitled to summary judgment on all of Plaintiff’s federal

claims. This Court first addresses the liability of the individual officers and whether they used

excessive force in violation of the Fourth Amendment, and then whether they are entitled to

qualified immunity as a matter of law at this stage of the proceeding. It next addresses Plaintiff’s

theory of supervisory liability as to Defendant Baskett. Last, it addresses the liability of the City.

1. Individual Officer Liability

To determine whether the officers are entitled to summary judgment, this Court begins by

assessing the constitutionality of the two alleged uses of force: the take-down and the palm

strikes. For the reasons that follow, this Court concludes that the take-down was reasonable as a

matter of law. However, disputes of fact preclude this Court from deciding the constitutionality

of the palm strikes. This Court then addresses qualified immunity, concluding that the officers

are entitled to qualified immunity as to the take-down but that there are issues of fact in dispute

regarding whether Defendants Chase and Baskett are entitled to qualified immunity as to the

palm strikes.

a. Constitutional Violation

Plaintiff contends genuine disputes of material fact preclude summary judgment on his

claim that Defendants used unconstitutionally excessive force in taking him to the ground and in

striking him in the back of the head. Resp., ECF 71 at 10–16. Before discussing the

reasonableness of those two uses of force, the Court notes that the officers were otherwise

entitled to conduct themselves as they did at the beginning of the encounter. The officers were

permitted to approach Plaintiff from behind, surprise him, and secure his arms by grabbing them.

As explained in more detail below, the right to arrest carries with it the right to use some degree

of physical coercion, and the Court concludes that this minimal degree of physical coercion

comports with the Fourth Amendment.

To determine whether the take-down and palm strikes used by the officers were excessive

uses of force under the Fourth Amendment, the Court must determine whether the officers’

actions were objectively reasonable under the totality of the circumstances. Byrd v. Phoenix

Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018). For this analysis, courts employ the framework

outlined by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). There, the Court

instructed that “[d]etermining whether the force used to effect a particular seizure is reasonable

under the Fourth Amendment requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Id. at 396 (internal quotation marks omitted); see Smith v. City

of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (en banc).

In applying Graham, courts first consider the nature and quality of the alleged intrusion.

“The gravity of the particular intrusion that a given use of force imposes upon an individual’s

liberty interest is measured with reference to ‘the type and amount of force inflicted.’” Young v.

County of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011) (quoting Deorle v. Rutherford, 272

F.3d 1272, 1279 (9th Cir. 2001)). Courts “consider the ‘specific factual circumstances’ of the

case in classifying the force used.” Andrews v. City of Henderson, 35 F.4th 710, 715–16 (9th Cir.

2022) (quoting Williamson v. City of National City, 23 F.4th 1146, 1151–52 (9th Cir. 2022)).

“Relevant to [the] analysis are the ‘nature and degree of physical contact’ and ‘the risk of harm

and the actual harm experienced.’” Id. at 716.

Next, courts consider the governmental interests at stake by looking at (1) the severity of

the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers

or others, which is the most important factor; and (3) whether the suspect was actively resisting

arrest or attempting to evade arrest by flight. See Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.

2011) (en banc). These factors are non-exhaustive and should be examined under the totality of

the circumstances. Rice v. Morehouse, 989 F.3d 1112, 1121–22 (9th Cir. 2021); see also

Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994) (explaining that courts must “look to

whatever specific factors may be appropriate in a particular case, whether or not listed in

Graham”).

Courts then balance the gravity of the intrusion on the individual and the government’s

need for that intrusion. Williamson, 23 F.4th at 1151. Because the balancing required by Graham

“nearly always requires a jury to sift through disputed factual contentions, and to draw inferences

therefrom,” the Ninth Circuit has “held on many occasions that summary judgment or judgment

as a matter of law in excessive force cases should be granted sparingly.” Santos v. Gates, 287

F.3d 846, 853 (9th Cir. 2002) (first quoting Graham, 490 U.S. at 396; then citing Deorle, 272

F.3d at 1279–81; and then citing Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir.

1997)); see also Est. of Aguirre v. County of Riverside, 29 F.4th 624, 628 (9th Cir. 2022). That

being said, “Fourth Amendment jurisprudence has long recognized that the right to make an

arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat

thereof to effect it.” Graham, 490 U.S. at 396.

i. Take-Down of Plaintiff

In light of all the circumstances and viewing the evidence in the light most favorable to

Plaintiff, a reasonable jury could not conclude that the take-down was unreasonable under the

circumstances.

This Court finds that the take-down was an intermediate use of force. Sergeant Baskett

admitted to pushing Plaintiff forward to effect the arrest, and when he realized that Plaintiff

could hit the electronic gambling machine and shatter the screen, risking harm to Plaintiff and

the officers, the officers pulled Plaintiff to the ground to avoid that potential harm. Plaintiff

alleges that, once on the ground, the officers pressed on him with their knees and shins.

However, while Plaintiff alleges that he suffered extreme pain in his neck, head, and back, and

that he continues to experience pain in his neck and back, Plaintiff did not suffer severe injuries

such as a fractured hip or broken vertebra, which distinguishes this take-down from those the

Ninth Circuit has regarded as a “substantial,” “aggressive,” or “severe” use of force. See

Andrews, 35 F.4th at 716 (holding that detectives’ use of force was “substantial” where they

“forcibly tackled Andrews to the ground with enough force to fracture his hip,” “result[ing] in

‘excruciating pain’ and requir[ing] two surgeries”); Rice, 989 F.3d at 1121 (classifying as a

“‘substantial’ and ‘aggressive use’ of force” a take-down that resulted in “‘extreme pain’

immediately following [Rice’s] arrest and long-term physical pain for which he received medical

treatment”); Santos, 287 F.3d at 853–54 (“[T]he nature of the intrusion was quite severe: as a

result of being taken to the ground, [the plaintiff] suffered a broken vertebra which caused him

both pain and immobility.”).

Here, viewing all inferences in Plaintiff’s favor, the take-down constituted a “form[] of

force capable of inflicting significant pain and causing serious injury,” and, as such, is “regarded

as ‘intermediate force’ that, while less severe than deadly force, nonetheless present[s] a

significant intrusion upon an individual’s liberty interests.” Young, 655 F.3d at 1161. Use of an

“intermediate, significant level of force . . . must be justified by the governmental interest

involved.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). As noted above, in

determining the government interest in the use of force, this Court looks at (1) the severity of the

crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officer or

others; and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by

flight. See Mattos, 661 F.3d at 441.

First, the crimes at issue were severe. Both the 2016 arrest warrant and the 2018

indictment involved violent felonies, and the government had a strong interest in Plaintiff’s

arrest. Second, while Plaintiff’s behavior at the bar may not have made him an immediate threat

to the safety of the officers and others, the officers did have reason to approach Plaintiff with

caution. The Defendants had performed an LEDS review on Plaintiff, which informed them that

he had cautions for past assault and resisting arrest. The officers thus approached the arrest with

that knowledge. The officers also did not have an opportunity to determine whether Plaintiff was

carrying a weapon before Sergeant Baskett gave the command to take him to the ground. “[A]

simple statement by an officer that he fears for his safety or the safety of others is not enough;

there must be objective factors to justify such a concern.” Deorle, 272 F.3d at 1281. Based on the

officers’ background knowledge about Plaintiff, they were justified in approaching the encounter

with due caution. Third, there is a fact dispute as to whether Plaintiff resisted arrest. On summary

judgment, this Court must draw reasonable inferences in Plaintiff’s favor, and a rational jury

could credit Plaintiff’s account that he did not understand he was under arrest and did not fight

the officers.

In light of all the circumstances and viewing the evidence in the light most favorable to

Plaintiff, a reasonable jury could not conclude that the take-down was unreasonable under the

circumstances. Though the take-down was an intermediate use of force, that degree of force was

reasonable under the totality of the circumstances. Plaintiff was under arrest for severe crimes,

and the LEDS review cautioned the officers that Plaintiff had a history of assault and resisting

arrest. Only around ten seconds elapsed from the officers first approaching Plaintiff to initiating

the take-down, and during that time the officers had not searched Plaintiff for weapons.

The differences between Plaintiff’s case and a recent Ninth Circuit case, Rice v.

Morehouse, 989 F.3d 1112 (2021), are instructive. There, the court held that a jury could

conclude a take-down was an unreasonable use of force. Id. at 1125. As the court explained, the

crime at issue was not severe, and the two officers who performed the take-down had been told

only that Rice was not complying with instructions. Id. at 1123. Those two officers were among

seventeen who responded to the call and six who surrounded Rice. Id. at 1122. The situation had

been developing for several minutes by the time the two officers arrived, and they had at least

one minute to observe Rice “calmly” requesting to speak with a supervisor. Id. Whereas a jury

could reasonably conclude that the take-down of Rice was an unnecessary use of force, the same

cannot be said here.

Under the circumstances Defendants faced, even viewed in the light most favorable to

Plaintiff, the officers were entitled to use this “degree of physical coercion” to accomplish the

arrest. See Graham, 490 U.S. at 396.

ii. Palm Strikes to Plaintiff’s Head

This Court concludes that, drawing all inferences and resolving all disputes in Plaintiff’s

favor, a reasonable jury could conclude that Officer Chase’s palm strikes were not reasonable

under the circumstances.

This Court finds that the palm strikes were “capable of inflicting significant pain and

causing serious injury,” constituting intermediate force. See Coles v. Eagle, 704 F.3d 624, 628

(9th Cir. 2012) (quoting Young, 655 F.3d at 1161–62); cf. Williamson, 23 F.4th at 1152 (“Even

viewing the evidence in Williamson’s favor, the type and amount of force used by the Officers in

this case was minimal. The Officers did not strike Williamson, throw her to the ground, or use

any compliance techniques or weapons for the purpose of inflicting pain on her.”). Officer Chase

struck Plaintiff repeatedly in the back of the head, which Plaintiff alleges caused him to lose

consciousness. The photographs of Plaintiff taken the day of the arrest show several raised, red

welts on his forehead and a scrape along the right side of his face. Carmona-Perez Decl., Ex.1,

ECF 72-1 at 1–4. Plaintiff attests that “[he] experienced extreme pain in [his] head, neck, back,

and wrists,” and that he continues to struggle to sleep. Carmona-Perez Decl., ECF 72 ¶ 12. He

claims that his “eyesight and memory” were also “negatively impacted.” Id. The repeated strikes

to the back of Plaintiff’s head while he was face down on the ground were an intermediate level

of force.

Use of an “intermediate, significant level of force . . . must be justified by the

governmental interest involved.” Bryan, 630 F.3d at 826. Again, in determining the government

interest in the use of force, this Court looks at (1) the severity of the crime at issue; (2) whether

the suspect posed an immediate threat to the safety of the officer or others; and (3) whether the

suspect was actively resisting arrest or attempting to evade arrest by flight. See Mattos, 661 F.3d

at 441.

First, the crimes at issue were severe. But the government’s strong interest in securing

Plaintiff’s arrest does not necessarily mean it had a strong interest in this use of force during this

stage of the encounter. Second, although Defendants had reason to be wary of Plaintiff given the

cautions on his record, there are material issues of fact in dispute about whether Plaintiff was

resisting arrest or struggling to keep his arms underneath his body to reach toward his waistband.

Further, the witness video does not clearly contradict Plaintiff’s version of events—Plaintiff’s

feet can be seen moving around, but his arms and hands are not visible. See Rice, 989 F.3d at

1123 (“Because the dash-cam video does not clearly contradict Rice’s account, we must accept

it.”). Additionally, it is undisputed that the officers did not provide use-of-force warnings before

striking him in the back of the head. See Deorle, 272 F.3d at 1284 (“[W]arnings should be given,

when feasible, if the use of force may result in serious injury, and . . . the giving of a warning or

the failure to do so is a factor to be considered in applying the Graham balancing test.”). Because

there are material facts in dispute, which depend on credibility findings, this Court cannot

determine as a matter of law whether the palm strikes were excessive in violation of the Fourth

Amendment. Thus, this Court turns to the clearly-established prong of the qualified-immunity

analysis.

b. Clearly Established Law

Even if this Court finds that genuine disputes of material fact exist regarding the

reasonableness of the officers’ use of force, such a finding does not preclude granting qualified

immunity. See Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th Cir. 2017). Rather,

“the next, sequential step is to ask whether the right was clearly established . . . in light of the

specific context of the case.” Tuuamalemalo v. Greene, 946 F.3d 471, 476–77 (9th Cir. 2019)

(internal quotation marks omitted) (quoting Scott, 550 U.S. at 377).

Use of excessive force is an area of the law “in which the result depends very much on

the facts of each case,” and thus police officers are entitled to qualified immunity unless existing

precedent “squarely governs” the specific facts at issue. Mullenix v. Luna, 577 U.S. 7, 13 (2015)

(internal quotation marks omitted and emphasis deleted). Cases involving similar facts can help

move a case beyond the otherwise “hazy border between excessive and acceptable force” and

provide notice to a police officer that a specific use of force is unlawful. Id. at 18 (internal

quotation marks omitted). Plaintiffs bear the burden of identifying controlling precedent. See

Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017). This burden is especially heavy in

excessive force cases where it is difficult for an officer to determine how the relevant legal

doctrine will apply to the factual circumstances he confronts, and consequently, clearly

established law must be defined with particular specificity. Mullenix, 577 U.S. at 12.

In determining the specific context of the case, this Court continues to view the evidence

and draw reasonable inferences in the light most favorable to the non-movant. See Tolan v.

Cotton, 572 U.S. 650, 657 (2014) (“Our qualified-immunity cases illustrate the importance of

drawing inferences in favor of the nonmovant, even when, as here, a court decides only the

clearly-established prong of the standard.”).2

Plaintiff argues that in the Ninth Circuit “there is a ‘clearly established . . . right to be free

from any kind of non-trivial force where the plaintiff did not resist or only passively resisted the

officer’” and “that ‘non-trivial force [is] not justified in the face of passive or even minimal

resistance.’” Resp., ECF 71 at 29 (quoting Rice, 989 F.3d at 1126).3 Relatedly, Plaintiff argues

that it is clearly established that “a failure to fully or immediately comply with an officer’s orders

neither rises to the level of active resistance nor justifies the application of a non-trivial amount

of force.” Id. (quoting Nelson v. City of Davis, 685 F.3d 867, 882 (9th Cir. 2012)). Plaintiff does

not explain how those quoted cases, both of which involve different scenarios than the one

2 Defendants define the context as follows: “No case clearly establishes that trying to

avoid glass shattering and injuring officers or the suspect by taking a suspect to the floor to gain

control is unconstitutional. Further, no case clearly establishes that palm strikes to a suspect’s

head when the suspect is kicking his legs, actively resisting arrest and refusing to show his hands

is unconstitutional.” MSJ, ECF 63 at 12. But this description draws inferences and resolves

disputes of fact in favor of Defendants, which is not permitted on summary judgment.

3 Although Rice’s issuance post-dates the events at issue here, and thus could not have

put the officers on notice that their conduct was violative, it held that “[l]ong before [December

26, 2011], we clearly established one’s ‘right to be free from the application of non-trivial force

for engaging in mere passive resistance.’” Rice, 989 F.3d at 1125 (quoting Gravelet-Blondin v.

Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013)).

presented here, put these officers on notice that their specific actions in these circumstances were

unlawful. See Hopson v. Alexander, 71 F.4th 692, 702 (9th Cir. 2023) (“[T]he cases Hopson cites

are materially different from this one. Hopson thus identifies no clearly established law that

would cause ‘every reasonable official’ to understand that any of these actions violate the Fourth

Amendment in the circumstances of this case.”).

Plaintiff does, however, offer a third case that is apposite. Plaintiff argues that “the Court

need not look any further than the Ninth Circuit case Blankenhorn v. City of Orange, 485 F.3d

463, 480–[8]1 (9th Cir. 2007).” Resp., ECF 71 at 29. There, he contends, “three officers tackled

[the plaintiff], and one officer punched him several times while he was on the ground during the

course of an arrest” and “[t]he Ninth Circuit held a jury could determine the uses of force were

unreasonable, and that plaintiff’s federal rights and the state of the law was clearly established.”

Id. As explained above, this Court concludes that the take-down was reasonable under the Fourth

Amendment as a matter of law. Nonetheless, this Court assumes for the sake of the qualified-

immunity analysis that a rational jury could find that both the take-down and the palm strikes

were unconstitutional. With that assumption in mind, this Court turns to whether Blankenhorn

clearly established the law for these circumstances.

i. Take-Down of Plaintiff

As to the take-down of Plaintiff, Blankenhorn is distinguishable in several respects.

There, the Ninth Circuit noted that the “severity of the alleged crime, misdemeanor trespass, was

minimal.” 485 F.3d at 478. Here, the offenses listed in the 2016 warrant and the 2018 indictment

included violent felonies.

Blankenhorn had behaved cooperatively with the arresting officers just three weeks

before the arrest. 485 F.3d at 478. Here, the officers entered the encounter with different

background information—the LEDS review had a “caution” indicator, which the officers

understood to mean Plaintiff should be treated as dangerous and they should proceed with

caution. Baskett Decl., ECF 64 ¶ 5; Chase Decl., ECF 65 ¶ 4; Ammon Decl., ECF 66 ¶ 4; see

also Gaddis Decl., Ex. C, ECF 83-1 at 29:7–14. That distinction means Blankenhorn does not

present clearly established law for Plaintiff’s take-down claim, even if, taking Plaintiff’s version

of events as true, he did not fight with the officers, and the surveillance video reflects that he was

not acting in a threatening manner when the officers arrived.

Further, as the Blankenhorn Court pointed out, “the pace of events” there “could

reasonably lead to the conclusion that the latitude Graham requires for split-second judgments in

‘tense, uncertain, or rapidly evolving’ situations was not warranted.’” 485 F.3d at 478 (quoting

Graham, 490 U.S. at 397). The officer there had engaged Blankenhorn in a back-and-forth

exchange. Here, the pace of events was on the order of seconds—as the surveillance video

shows, about ten seconds elapsed from the beginning of the encounter to the officers taking

Plaintiff to the ground. See ECF 73-2 at 00:00–00:11.

Ultimately, Blankenhorn does not address with sufficient specificity the officers’ conduct

or the circumstances they confronted. Even assuming that the take-down was an unreasonable

use of force, Defendant Officers are entitled to qualified immunity because, at the time of the

encounter, the case law did not place the officers on notice that the take-down was an

unreasonable use of force under the Fourth Amendment.

ii. Palm Strikes to Plaintiff’s Head

As to the palm strikes, however, Blankenhorn squarely governs. There, the Ninth Circuit

determined that a reasonable officer would be “on notice that punching Blankenhorn to free his

arms when, in fact, he was not manipulating his arms in an attempt to avoid being handcuffed,

was . . . a Fourth Amendment violation.” Blankenhorn, 485 F.3d at 481. The officer stated that

he “punched Blankenhorn several times during the arrest because he ‘was trying to get Mr.

Blankenhorn’s arms out from underneath him and secure the handcuffs.’” Id. at 480.

Blankenhorn, on the other hand, “claim[ed] he never pinned his arms underneath his body” and

“[t]he video d[id] not clearly show whether he did so or not.” Id. The court, “[c]rediting

Blankenhorn’s version of the events, as [it] must at a summary-judgment stage,” “conclude[d]

that a rational jury could find that if Blankenhorn did not maneuver his arms beneath his body it

eliminated the need for any use of force to release them, and thus that [the officer’s] punches

were not reasonably justified by the circumstances as he claims.” Id.

Likewise here. Crediting Plaintiff’s version of events, he was face down on the ground

with three officers holding him down, he claims he was not fighting the officers or reaching for

his waistband, and Officer Chase struck him in the back of the head several times. There are

material issues of fact about how and why the palm striking occurred. Accordingly, at this stage,

this Court cannot find as a matter of law that Defendant Chase is entitled to qualified immunity

as to his palm strikes to the back of Plaintiff’s head. Likewise, as explained below, under

Plaintiff’s supervisory liability theory, Defendant Baskett is not entitled to qualified immunity as

a matter of law at this stage of the proceeding. Plaintiff has not presented any facts to show

Defendant Ammon’s personal involvement in the palm strikes and accordingly, he is entitled to

qualified immunity.

2. Supervisory Liability

Before turning to the City’s potential liability, there is the issue of Plaintiff’s supervisory

liability theory involving Defendant Baskett. Plaintiff argues that Defendant Baskett is liable “in

his individual capacity” for “his participation in the unlawful conduct, and his failure to train,

supervise, and control his subordinates.” Resp., ECF 71 at 27 (capitalization omitted). On reply,

Defendants appear to construe this as an argument regarding the City’s liability. Am. Reply, ECF

82 at 11, 9 (presenting its arguments on this issue in a Section entitled Ҥ 1983 Claim РMonell

Liability”). Indeed, Defendants cite Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004), which involved a

municipality being “held liable for a constitutional violation” because “a final policymaker

ratifie[d] a subordinate’s actions.” Id. at 987.

Assuming, as Plaintiff argued, that Plaintiff is pursuing Defendant Baskett in his

individual capacity based on supervisory liability, then that claim survives summary judgment

for the same reasons discussed above as to Officer Chase’s individual liability. “A supervisor can

be liable in his individual capacity for his own culpable action or inaction in the training,

supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation;

or for conduct that showed a reckless or callous indifference to the rights of others.” Starr v.

Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (quoting Watkins v. City of Oakland, 145 F.3d 1087,

1093 (9th Cir.1998)). “Officers may not be held liable merely for being present at the scene of a

constitutional violation . . . .” Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018).

As discussed above, construing the facts and resolving disputes in favor of Plaintiff, a

reasonable jury could conclude that the palm strikes were an unreasonable use of force under

these circumstances. For those same reasons, a rational jury could conclude that Sergeant

Baskett’s participation in the encounter and acquiescence in the constitutional violation makes

him liable as Officer Chase’s supervisor. Further, as discussed above, Blankenhorn clearly

established that “a reasonable officer [would be] on notice that punching [an arrestee] to free his

arms when, in fact, he was not manipulating his arms in an attempt to avoid being handcuffed,

was . . . a Fourth Amendment violation.” Id. at 481. That applies with equal force to Sergeant

Baskett, who participated in the encounter and acted as the supervising officer. This Court denies

summary judgment as to Defendant Baskett on this claim.

3. Municipal Liability

A municipality “may be held liable under section 1983 if its deliberate policy caused the

violation alleged.” Blankenhorn, 485 F.3d at 483 (citing Monell v. Dep’t of Soc. Servs. of N.Y.,

436 U.S. 658, 694 (1978)).

The Ninth Circuit has recognized three possible theories for Monell liability. Rodriguez v.

County of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018). First, a local government may be

liable if “execution of a government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflict[ed] the injury.”

Monell, 436 U.S. at 694. Second, a local government can fail to train employees in a manner that

amounts to “deliberate indifference” to a constitutional right, such that “the need for more or

different training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). Third, a

local government may be held liable if “the individual who committed the constitutional tort was

an official with final policy-making authority or such an official ratified a subordinate’s

unconstitutional decision or action and the basis for it.” Gravelet-Blondin, 728 F.3d at 1097

(internal quotation marks and citation omitted).

Plaintiff invokes two of those theories. He argues that the City is not entitled to summary

judgment on the Monell claim because it (1) failed to train, investigate, and discipline the

officers and (2) ratified the officers’ use of force. Resp., ECF 71 at 30–33.

a. Failure to Train, Investigate, and Discipline

“[A] § 1983 plaintiff may prove the second type of Monell liability, deliberate

indifference, through evidence of a ‘failure to investigate and discipline employees in the face of

widespread constitutional violations.’” Rodriguez, 891 F.3d at 803 (quoting Hunter v. County of

Sacramento, 652 F.3d 1225, 1234 n.8 (9th Cir. 2011)); see also Horton ex rel. Horton v. City of

Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019) (explaining that Monell liability can arise

from a failure to train, supervise, or discipline that amounts to a deliberate indifference to

individuals’ constitutional rights); Sheehan v. City & County of San Francisco, 743 F.3d 1211,

1230 (9th Cir. 2014) (“The ‘inadequacy of police training may serve as the basis for § 1983

liability only where the failure to train amounts to deliberate indifference to the rights of persons

with whom the police come into contact.’” (quoting Price v. Sery, 513 F.3d 962, 973 (9th Cir.

2008))), rev’d in part on other grounds, 575 U.S. 600 (2015).

To show deliberate indifference, Plaintiff must demonstrate that the need “‘for more or

different’ action ‘is so obvious, and the inadequacy [of existing practice] so likely to result in the

violation of constitutional rights, that the policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.’” Hyun Ju Park v. City & County of Honolulu, 952 F.3d

1136, 1141 (9th Cir. 2020) (brackets in original) (quoting Harris, 489 U.S. at 390 n.10).

Plaintiff offers several pieces of evidence in an effort to establish the inadequacy of the

City’s training, investigation, and discipline.

First, he points to complaints brought against Defendants Baskett and Ammon for

“excessive force during arrest just one year prior to this incident.” Resp., ECF 71 at 31. Plaintiff

appears to be referring to a civil lawsuit filed in 2017, and he alleges that the “City failed to even

interview the officers about, much less provide any discipline or training.” Id. On reply,

Defendants provide evidence4 that Defendant Ammon was not a party to that lawsuit, and that

the constitutional claims against Defendant Baskett were dismissed in 2021. Gaddis Decl., Ex. F,

ECF 83-4. There, the court determined that Defendant Baskett’s use of force was objectively

4 Plaintiff does not object to the introduction of this evidence.

reasonable, and even if Sergeant Baskett had violated a constitutional right, such a right was not

clearly established at the time of the encounter. Williams v. Baskett, No. 6:19-CV-00069-MO,

2021 WL 4494189, at *5–6 (D. Or. Sept. 30, 2021), aff’d, No. 22-35054, 2023 WL 4618535 (9th

Cir. July 19, 2023). The Ninth Circuit recently affirmed on the ground that the right was not

clearly established. Williams, 2023 WL 4618535 at *1. On remand to state court, the claims were

dismissed without prejudice. Gaddis Decl., Ex. F, ECF 83-4 at 1. Defendants state that the

plaintiff appealed the dismissal. Am. Reply, ECF 82 at 10 n.3. To the extent Plaintiff relies on a

complaint made against Officer Ammon after the incident at issue here, Defendants argue that

that “complaint was unsubstantiated.” Am. Reply, ECF 82 at 3.

Second, Plaintiff points to the City’s conduct following Plaintiff’s filing a citizen

complaint, specifically that the City failed to interview and discipline the officers. Resp., ECF 71

at 6. The formal investigation report provided by Plaintiff, Rinta Decl., Ex. 8, ECF 74, reflects

that Investigator Smith reviewed the officers’ reports of the incident and the video footage,

interviewed Plaintiff, and forwarded the incident to the Salem Police Department’s Use of Force

Review Board. Id. at 3–6. According to the report, the Use of Force Review Board also reviewed

the incident and determined that “the force used was justified and in accordance with department

training.” Id. at 7. The report was forwarded to Deputy Chief Skip Miller for review. Id. Even if

the failure to interview the officers amounted to a failure to investigate, Plaintiff has not provided

evidence to show that this failure is recurring. Likewise, a single failure does not establish a

custom or practice. See Horton, 915 F.3d at 602–03 (explaining that to be liable under § 1983, a

municipality must have a “pervasive practice or custom”).

Taken together, this evidence offered by Plaintiff does not establish the inadequacy of the

City’s training, investigation, and discipline. Plaintiff has not produced evidence to create a

genuine dispute of fact concerning whether municipal Defendants’ failure to train, investigate, or

discipline amounted to deliberate indifference of individuals’ constitutional rights.

b. Ratification

Plaintiff next argues that “[a]n internal police review concluding an officer’s use of force

was lawful and within policy can be sufficient to support a theory of ratification for the purposes

of Monell liability and is a factual determination for the jury.” Resp., ECF 71 at 30 (citing

Thomas v. Cannon, No. 3:15-05346 BJR, 2017 WL 2289081, at *13 (W.D. Wash. May 25,

2017)). Plaintiff goes on to assert that “[a] single subsequent ratification of the conduct that gave

rise to a plaintiff’s lawsuit can support Monell liability.” Id. (citing Haugen v. Brousseau, 351

F.3d 372, 393 (9th Cir. 2003), rev’d on other grounds, 543 U.S. 194 (2004)).

As Defendants point out on reply, ECF 82 at 12, Haugen requires more than a subsequent

ratification—a plaintiff must also show that the subsequent ratification “was the product of a

‘conscious, affirmative choice’ to ratify the conduct in question.” 351 F.3d at 393 (citing Gillette

v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992)). Further, as the Ninth Circuit recently

explained, “‘[r]atification . . . generally requires more than acquiescence,’ and ‘a mere failure to

discipline . . . does not amount to ratification’ of allegedly unconstitutional actions.” Dodge v.

Evergreen Sch. Dist. #114, 56 F.4th 767, 788 (9th Cir. 2022) (ellipses in original) (quoting

Sheehan, 743 F.3d at 1231). Plaintiff has not provided evidence of anything more than

acquiescence in the officers’ allegedly unconstitutional conduct.

Plaintiff has not introduced evidence to create a genuine dispute of fact concerning

whether (1) municipal Defendants’ failure to train, investigate, or discipline amounted to

deliberate indifference of individuals’ constitutional right and (2) Defendants ratified the

allegedly unconstitutional actions of the officers. The City is entitled to summary judgment on

this claim.

C. State-Law Claims

Defendants argue that they are entitled to summary judgment on Plaintiff’s state-law

claims for negligence and battery. MSJ, ECF 63 at 15–17.

1. Negligence

In their opening brief for this motion, Defendants argue that “Plaintiff cannot shoe-horn

the officers’ allegedly intentional conduct into the lesser standard of negligence.” Id. at 16 (citing

Kasnick v. Cooke, 116 Or. App. 580, 582–83 (1992)). In their reply, Defendants reframe this

argument, contending that Plaintiff’s state-law negligence claim must be dismissed because it is

based on the same facts as his § 1983 claims. Am. Reply, ECF 82 at 13. Defendants point this

Court to a string of cases from the District of Oregon holding as such. Id. (first citing Whitfield v.

Tri-Metro. Transp. Dist., Civil No. 06-1655-HA, 2009 WL 839484, at *11 (D. Or. Mar. 30,

2009); then citing Rodrigues v. Jackson County, No. 1:13-CV-01589-CL, 2015 WL 404577, at

*4 (D. Or. Jan. 29, 2015); then citing Woods v. Gutierrez, No. 3:11-CV-01082-BR, 2012 WL

6203170, at *12 (D. Or. Dec. 12, 2012); then citing Shilo v. City of Portland, No. CV 04-130-

AS, 2005 WL 3157563, at *2 (D. Or. Nov. 22, 2005); then citing Aranda v. City of McMinnville,

942 F. Supp. 2d 1096, 1110 (D. Or. 2013); and then citing Saberi v. City of Portland, No. CV

04-1396-MO, 2006 WL 2707995, at *4 (D. Or. Sept. 18, 2006)). But see Johns v. City of Eugene,

No. 6:16-CV-00907-AA, 2018 WL 634519, at *14 (D. Or. Jan. 30, 2018) (“[N]othing in federal

or state law requires pretrial dismissal of a negligence claim simply because it rests on the same

factual allegations as a civil rights claim under § 1983.”), rev’d on other grounds, 771 F. App’x

739 (9th Cir. 2019).

Generally, courts refrain from considering new arguments raised on reply, but “a district

court has the discretion to consider an argument first raised in a reply brief.” Lane v. Dep’t of

Interior, 523 F.3d 1128, 1140 (9th Cir. 2008) (citing Glenn K. Jackson, Inc. v. Roe, 273 F.3d

1192, 1201–02 (9th Cir. 2001)). To the extent Defendants raise a new argument on reply, this

Court exercises that discretion here.

Here, the facts underlying Plaintiff’s negligence claim are the same facts underlying his

§ 1983 claim. As to the negligence claim, Plaintiff alleged that the officers were negligent in

“failing to properly announce their identities as law enforcement before putting their hands upon

Plaintiff,” “taking Plaintiff to the ground,” “striking him in the head, neck and back,” “failing to

properly give instructions to Plaintiff and giving him an opportunity to comply,” and

“misapplying use of force standards.” FAC, ECF 46 ¶ 19. These same facts form the basis of his

Fourth Amendment claim. See id. at ¶¶ 27–29. This is not the kind of situation where a plaintiff

“allege[s] a § 1983 violation for the use of a flash-bang device, and a separate negligence claim

if that flash-device, left unattended, starts a fire.” See Shilo, 2005 WL 3157563, at *2.

Because a state common-law claim of negligence may be maintained separately from a

§ 1983 claim only when the negligence claim is based on facts that are different from the facts on

which the § 1983 claims are based, the City is entitled to summary judgment on Plaintiff’s

negligence claim.

2. Battery

Defendants argue that “[t]here are no facts to support” Plaintiff’s battery claim. MSJ,

ECF 63 at 17. As discussed with respect to the excessive force claim against the officers, there

are genuine fact questions that a jury should decide and, depending on the resolution of those

questions, there could be support for the battery claim.

Defendants further argue that “[p]olice officers performing their duty acting with

apparent authority are also entitled to good faith immunity under ORS 30.265(6)(f).” Id. at 17.

That defense is inapplicable here. As an Oregon state court explained, “ORS 30.265(6)(f) applies

to public actors who, acting without bad faith or malice, rely on their plausible interpretation of

laws that turn out to be unconstitutional, invalid, or inapplicable.” Cruz v. Multnomah County,

279 Or. App. 1, 13 (2016). Defendants do not claim to have relied on an interpretation of law

that was later deemed incorrect. This defense is inapplicable.

Because factual questions remain regarding whether the use of palm strikes was

excessive or otherwise reasonable under the circumstances, the City is not entitled to summary

judgment on Plaintiff’s state-law battery claim.

CONCLUSION

Defendants’ Motion for Summary Judgment, ECF 63, is GRANTED in part and

DENIED in part. Defendant Ammon is hereby DISMISSED from this action.

IT IS SO ORDERED.

DATED this 25th day of September, 2023.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge