Mead v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANGELINE MEAD, Case No.: 3:24-cv-01399-AN

Plaintiff,

v.

OPINION AND ORDER

UNITED STATES OF AMERICA,

Defendant.

Plaintiff Angeline Mead brings this action against defendant United States of America,

alleging claims of battery, intentional infliction of emotional distress ("IIED"), and negligence under the

Federal Torts Claim Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiff alleges that defendant

committed these torts when a federal officer shot her with an impact munition while she attended a protest

in July of 2020. On November 20, 2024, plaintiff filed a motion for joinder, which the Court construes as

a motion to consolidate. On February 18, 2025, defendant filed a motion to dismiss. After reviewing the

parties' filings, the Court finds this matter appropriate for decision without oral argument. Local R. 7-1(d).

For the reasons stated below, plaintiff's motion is DENIED, and defendant's motion is GRANTED in part

and DENIED in part.

LEGAL STANDARD

A. Failure to State a Claim

To survive a Federal Rule of Civil Procedure ("FRCP") 12(b)(6) motion to dismiss for

failure to state a claim, a complaint must allege "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) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)); Fed R. Civ. P. 12(b)(6). A claim is facially plausible "when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The court "must accept as true all factual

allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party." Retail

Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). Bare assertions

that amount to mere "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be

assumed true." Iqbal, 556 U.S. at 681.

B. Consolidation

"If actions before the court involve a common question of law or fact, the court may . . .

(1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue

any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a).

A party seeking consolidation must file a motion to consolidate "in each case to be

consolidated." Local R. 42-3. Additionally, the motion "must include":

"(1) The case number, case title, and assigned judge of every related case pending in

the District of Oregon.

(2) The case number, case title, assigned judge, and court location of every other

related case pending in any other state or federal court.

(3) The common question of law or fact at issue in each case.

(4) The status in each case of all pending motions, Court imposed deadlines, case

management schedules, trial dates, etc.

(5) The reason that the cases should be reassigned and managed by a single judicial

officer.

(6) The position of the other parties, if known.

(7) The scope of consolidation requested, e.g., for hearing on a motion; for pretrial and

discovery; or for all further proceedings, including trial."

Id.

BACKGROUND

A. General Allegations

The complaint begins by describing the general backdrop of the 2020 protests nationally

and in Portland. Plaintiff also raises certain legal developments related to protest crowd control and

munitions. See Compl., ECF [1], ¶¶ 1-7.

Plaintiff alleges that on May 28, 2020, thousands of people began months of sustained

protests in Portland near the Mark O. Hatfield Courthouse, and the Portland Police Bureau met these

protests with generalized violence, including pepper balls, batons, sonic weapons, and tear gas. Id. ¶ 3.

Between June 9, 2020, and June 30, 2020, emergency court orders, city directives, and state law reforms

placed limitations on the use of tear gas and other force. Id. ¶ 4. On July 1, 2020, federal law enforcement

officers and agents were deployed in Portland, where they "engaged in crowd-dispersal operations,

deploying tear gas and impact munitions well beyond the immediate surroundings of federal property and

with the apparent purpose of quelling lawful protests in support of Black lives rather than protecting federal

property." Id. ¶ 16. Plaintiff alleges that defendant's agents "repeatedly failed to employ de-escalation

strategies or tactics to mitigate violence" and instead "escalated violence on a nightly basis by targeting

peaceful and lawfully dispersing individuals for injury or assault without probable cause, pursuing

protesters, observers, and journalists through the streets blocks beyond federal property while

simultaneously firing pepper-spray balls, rubber bullets, and other munitions" and "concealing the

pathways" to disperse with tear gas and flashbang devices. Id. ¶ 18.

On or after July 22, 2020, federal agents built a chain-link fence around the courthouse

with plywood and concrete blocks, which plaintiff alleges escalated the situation by permitting agents to

fire munitions while protected within the front steps of the courthouse and from an elevated position. Id.

¶ 19.

On July 23, 2020, District Judge Michael H. Simon issued a temporary restraining order in

Index Newspapers, LLC v. City of Portland, No. 3:20-cv-01035-SI, "exempting journalists and legal

observers from orders to disperse and restraining the U.S. Department of Homeland Security and the U.S.

Marshals Service from arresting, threatening to arrest, or using physical force directed against any person

who they know or reasonably should know is a journalist or legal observer." Id. ¶ 20. Plaintiff alleges that

this implies that federal agents should issue crowd dispersal orders before using crowd-control devices. Id.

Instead, plaintiff alleges that federal agents did not change their behavior and instead directed excessive

force at plaintiff. Id. ¶ 22.

Plaintiff alleges that throughout the month of July, between approximately 11:30 p.m. and

1:00 a.m. each night, federal agents "emerged from Hatfield Courthouse and fired tear gas and tossed and

launched flashbang grenades into SW Third Avenue, Lownsdale Square, and SW Fourth Avenue,

sometimes without any warning and regardless of whether there were triggering acts of protestor violence,

property damage, or threats . . . toward federal agents." Id. ¶ 23. The agents, located behind the protective

barriers, would then "fire[] pepper balls through and over the fencing at protestors" and then enter the street,

"shooting protestors with rubber bullets, pepper-spray balls, and other impact munitions regardless of

whether the protesters were engaged in acts of violence, peacefully dispersing or leaving the area, were in

retreat, or were moving away from federal property or standing blocks away." Id. ¶ 24.

On July 29, 2020, Governor Kate Brown announced that she had reached an agreement

with defendant to withdraw all federal agents from Portland by August 4, 2020. Id. ¶ 34. The next day,

President Donald Trump announced on Twitter that if Governor Brown could not "clear out, and in some

cases arrest the Anarchists & Agitators in Portland . . . the Federal Government will do it for her. We will

not be leaving until there is safety!" Id. ¶ 35. Plaintiffs allege that after this Twitter announcement, the

federal agents increased their use of force. Id. ¶ 39.

Plaintiff alleges that, on information and belief, defendant and its agents obtained

surveillance information on her and other protesters in the protest zone "from fixed and mobile cameras,

cell phone data, drone footage, and other digital media." Id. ¶ 42.

B. Individual Allegations

On the evening of July 25, 2020, plaintiff joined a Black Lives Matter protest across the

street from the Hatfield Courthouse. Id. ¶ 43. At or around 1:00 a.m. on the morning of July 26, 2020,

plaintiff saw federal officers fire tear gas into the crowd. Id. ¶ 45. At that same time, plaintiff heard an

announcement over a loudspeaker, indicating "something about unlawful assembly" and that "munitions

may be deployed." Id.

Plaintiff walked away from the officers and talked with her friends about how to leave the

area. Id. Plaintiff then noticed a vehicle and officers coming towards her group and firing tear gas at

retreating protestors. Id. ¶ 46. Plaintiff and her group continued to walk away from the approaching

officers. Id. ¶ 47. Halfway through the next city block, plaintiff looked back to see how close the officers

were. Id. As she was looking back, an officer "specifically targeted" plaintiff and shot her in the head with

a high-velocity impact munition. Id. ¶¶ 47, 53. The officer was roughly twenty to thirty feet away, and the

impact munition hit plaintiff in her right eye. Id. Plaintiff immediately lost vision and had pain and bleeding

in her right eye. Id. ¶ 48.

At a nearby bus stop, a medic bandaged plaintiff's right eye to stop the bleeding. Id. A

volunteer ambulance then transported plaintiff to the Emergency Department at Oregon Health Science

University Hospital ("OHSU"). Id. ¶ 49. A CT scan of her eye sockets revealed a right eyelid laceration

that required several stiches. Id. ¶ 50. Later that day, plaintiff was discharged with an initial diagnosis of

retinal detachment and instructed to return for a more comprehensive eye examination. Id.

On July 29, 2020, plaintiff returned to OHSU for a comprehensive right eye examination.

Id. ¶ 51. Plaintiff was diagnosed with a vitreous hemorrhage, traumatic iritis, and a round hole in her right

retina. Id. Plaintiff received laser retinopexy surgery to repair the round hole. Id.

C. Procedural Background

Plaintiff filed a Standard Form 95 ("SF-95") within two years of the alleged injury. Id.

¶ 10. Six months has passed since plaintiff filed the SF-95, and plaintiff has not received a response from

any of the federal agencies to which her SF-95 was sent. Id.

Plaintiff initiated this action on August 26, 2024. Id. at 24. On November 20, 2024,

plaintiff filed a "motion for joinder," seeking to consolidate this action with Kristiansen v. United States,

3:24-cv-01719-IM, which is before District Judge Karin J. Immergut. Pl. Mot. for Joinder ("Mot. to

Consolidate"), ECF [5], at 5. Defendant did not respond to this motion.

On February 18, 2025, defendant moved to dismiss plaintiff's complaint for failure to state

a claim. Def. Mot. to Dismiss ("MTD"), ECF [10], at 12.

DISCUSSION

A. Defendant's Motion to Dismiss

Defendant argues that plaintiff does not state plausible claims for battery, IIED, or

negligence. The Court addresses plaintiff's claims in turn.

1. Battery

A district court analyzing a claim brought under the FTCA applies substantive state law.

Bennett v. United States, 44 F.4th 929, 933 (9th Cir. 2022) ("The FTCA [] incorporates substantive state

law as federal law to determine liability."); see 28 U.S.C. § 1346(b). Under Oregon law, "[t]he elements of

a battery claim are well established":

'[T]he conduct which brings about the harm must be an act of volition on the actor's part,

and the actor must have intended to bring about a harmful or offensive contact or put the

other party in apprehension thereof. It is not necessary that the contact do actual physical

harm—it is sufficient if the contact is offensive or insulting.'"

Johnson v. Jones, 269 Or. App. 12, 17, 344 P.3d 89 (2015) (quoting Bakker v. Baza'r, Inc., 275 Or. 245,

249 (1976)). Thus, a "battery is a voluntary act that is intended to cause the resulting harmful or offensive

contact." Harris v. Pameco Corp., 170 Or. App. 164, 169, 12 P.3d 524 (2000) (citation modified).

Oregon law provides, however, that a law enforcement officer is justified in using physical

force so long as the force used was not more than necessary under the circumstances to accomplish the

officer's law enforcement duties. Gigler v. City of Klamath Falls, 21 Or. App. 753, 763, 537 P.2d 121

(1975). Only "the use of excessive force by a police officer . . . can give rise to civil liability for battery."

Ballard v. City of Albany, 221 Or. App. 630, 641, 191 P.3d 679 (2008).1 This standard mirrors the

"objective reasonableness" standard that governs a federal civil rights claim premised on the use of

excessive force by a law enforcement officer. See Price v. City of Sutherlin, 945 F. Supp. 2d 1147, 1157

(D. Or. 2013).

Defendant concedes that plaintiff alleges a voluntary act that resulted in a harmful or

offensive contact. See Def. Reply, ECF [14], at 5. The parties disagree, however, on whether plaintiff must

plead sufficient facts to establish excessive force at the motion to dismiss stage. See Pl. Resp., ECF [13],

at 5; Def. Reply 3. Another court in this district has "read[] Gigler and Ballard as requiring a plaintiff

asserting a battery claim against a law enforcement officer to allege that the force used was unreasonable."

1 Plaintiff argues that Ballard only applies to a claim for battery "in making an arrest," but not when there was no

arrest. Pl. Resp., ECF [13], at 7. Plaintiff offers no explanation for why officers should be subject to ordinary battery

liability when dispersing a crowd but only be liable for the use of excessive force in making an arrest.

Kristiansen v. United States, No. 3:24-cv-01719-IM, 2025 WL 2049290, at *3 (D. Or. July 22, 2025).

Even so, the Court finds that plaintiff pleads sufficient facts to allege that the use of force

regarding the shooting of an impact munition was unreasonable. Plaintiff bases her battery claim on the

use of impact munitions. Plaintiff alleges that as she was walking away from a protest in compliance with

a dispersal order, she looked back and was hit in the right eye with an impact munition fired by a federal

officer who "specifically targeted"2 plaintiff from approximately twenty to thirty feet away. Compl. ¶¶ 45-

47, 53. Taking plaintiff's allegations as true, as the Court must at this stage, plaintiff "allege[s] some facts

about what happened before the alleged acts of force and what she was doing when the force was used" and

"make[s] it plausible that the force used was more than reasonably necessary under the circumstances."

Kristiansen, 2025 WL 2049290, at *3 (citing Gonzales v. City of Clovis, No. 12-cv-00053, 2012 WL

4671179, at *7 (E.D. Cal. Oct. 3, 2012)). Accordingly, plaintiff states sufficient facts to allege a battery

claim.

2. IIED

To state a claim for IIED under Oregon law, a plaintiff must allege that (1) the defendant

intended to inflict severe emotional distress upon her, (2) the defendant's acts caused the plaintiff's severe

emotional distress, and (3) the defendant's acts "constituted an extraordinary transgression of the bounds of

socially tolerable conduct." McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995) (quoting

Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000 (1989)).

"Whether the conduct alleged is sufficiently extreme or outrageous to be actionable is a

fact-specific inquiry, one to be made on a case-by-case basis considering the totality of the circumstances."

Delaney v. Clifton, 180 Or. App. 119, 130, 41 P.3d 1099 (2002). The totality of the circumstances includes

the conduct itself as well as any special relationship of the parties, characteristics of the plaintiff that were

2 Defendant argues that plaintiff's assertion that the unidentified officer "specifically targeted" her is conclusory. Def.

Reply 5 (quoting Compl. ¶ 45; Pl. Resp. 10). However, at the motion to dismiss stage, the Court must "accept as true

all factual allegations in the complaint." Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d

938, 945 (9th Cir. 2014). Drawing all inferences in plaintiff's favor, the Court finds it plausible to infer that an officer

who aimed a munition at plaintiff from twenty to thirty feet away was "specifically targeting" plaintiff.

known to the defendant, and the setting in which the conduct occurred. House v. Hicks, 218 Or. App. 348,

360, 179 P.3d 730 (2008). "The most important factor is whether a special relationship exists between a

plaintiff and a defendant[.]" Id. "In fact, the lack of such a relationship generally defeats a conclusion that

the conduct is actionable through an IIED claim[,]" Delaney, 180 Or. App. at 130, as a "'special relationship'

between the parties has played a role in every case in this state involving [a successful claim of IIED,]"

Christofferson v. Church of Scientology, 57 Or. App. 203, 209, 644 P.2d 577 (1982), rev. den., 293 Or. 456,

650 P.2d 928 (1982), cert. den., 459 U.S. 1206 (1983).

Here, the Court finds that plaintiff does not allege that the officers' actions amounted to an

extraordinary transgression of the bounds of socially tolerable conduct. Plaintiff concedes that she does

not plead any special relationship. Pl. Resp. 11. In House, the Oregon Court of Appeals identified

"government officer-citizen" as a possible special relationship. 218 Or. App. at 360. However, in support

of that proposition, the court cited to Williams v. Tri-County Metropolitan Transportation District of

Oregon, which characterized that relationship specifically as between a public transportation driver and a

disabled citizen. See id. (citing, in relevant part, Williams, 153 Or. App. 686, 958 P.2d 202 (1998), rev.

den., 327 Or. 431, 966 P.2d 222 (1998) and specifying the relationship as "government employee-disabled

citizen"); Williams, 153 Or. App. at 693 ("Fundamental to our conclusion is plaintiff's disabled status. . . .

Equally fundamental to our holding is the driver's relationship to plaintiff. As a provider of public

transportation, the relationship is a special one within our society[.]").

Plaintiff's general allegations regarding defendant's "unprecedented and sustained violence

and intimidation on the people of Portland" and "repeated[] fail[ure] to employ de-escalation strategies or

tactics to mitigate violence and protect the rights of peaceful assembly and protest[,]" Pl. Resp. 12, also do

not support her argument. "[C]onduct unbecoming [of] peace officers" is generally not sufficient to support

an IIED claim. Pakos v. Clark, 253 Or. 113, 132, 453 P.2d 682 (1969). Moreover, given the setting in

which the alleged conduct occurred—federal agents employing munitions and other crowd control methods

following a dispersal order—plaintiff does not allege any facts that show that this use of force was unrelated

to legitimate law enforcement objectives or intended to inflict severe emotional harm.

Considering the totality of the circumstances, plaintiff does not sufficiently state an IIED

claim. However, the Court grants leave to amend if plaintiff believes she can cure these defects.

3. Negligence

To state a claim for negligence under Oregon law, a plaintiff must allege:

"(1) that [the] defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to

an interest of a kind that the law protects against negligent invasion, (3) that [the]

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

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

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

[the] defendant's conduct negligent."

Solberg v. Johnson, 306 Or. 484, 490-91, 760 P.2d 867 (1988), abrogated on other grounds by Deckard v.

Bunch, 358 Or. 754, 370 P.3d 478 (2016).

The Court finds that plaintiff adequately states a negligence claim. Defendant argues that

plaintiff fails to allege facts showing that the officer acted unreasonably. As explained with respect to the

battery claim, however, plaintiff does allege facts showing that the use of force was unreasonable. Plaintiff

alleges that she was complying with a dispersal order and walking away from a protest when a federal

officer intentionally shot her in the head with an impact munition and injured her. See Compl. ¶¶ 45-47.

Plaintiff also alleges that the officer "appl[ied] a quantum of force that was grossly disproportionate [to

plaintiff's presence at a protest]" and "sho[t] impact munitions indiscriminately or directly at lawful

protestors . . . including when those protestors were displaying no violence or resistance . . . in violation of

the Fourth Amendment[.]" Id. ¶ 65(c), (f), (g). Plaintiff also alleges that the officer "knew or should have

known that [p]laintiff posed no proportional threat of harm to person or property" but fired anyway. Id.

¶ 65(j). Accordingly, plaintiff states sufficient facts to allege a negligence claim.

B. Plaintiff's Motion to Consolidate

Construing plaintiff's motion as a motion to consolidate,3 the Court finds that consolidation

3 Plaintiff titles this motion a "Motion for Joinder" or "Motion to Join Related Case" and cites to FRCP 20(a)(1)(A),

which provides for permissive joinder of parties as plaintiffs. See Fed. R. Civ. P. 20(a)(1)(A). However, upon review

of the motion, it is clear that plaintiff seeks to consolidate cases rather than join a plaintiff.

is not warranted. As an initial matter, plaintiff's motion does not satisfy the Local Rules' requirements for

consolidation. Plaintiff's arguments concern a history of similar cases involving Bivens claims being

consolidated in this district and this case and Kristiansen sharing similar sets of facts.4 See Mot. to

Consolidate 2-5. However, Local Rule 42-3 requires more than just alleged common facts. In her motion,

plaintiff does not include "the status in each case of all pending motions, Court imposed deadlines, case

management schedules, etc." Local R. 42-3(4). A review of the docket of Kristiansen also shows that

plaintiff did not file a motion in that case, even though plaintiff seeks to consolidate Kristiansen with this

case. See Local R. 42-3.5

Even as to the alleged common facts, the facts of Kristiansen and this case contain notable

differences. Although the two cases involve claims against the government arising out of the same series

of protests, they arise out of different interactions with officers on different nights: the plaintiff in

Kristiansen bases her claims on events occurring July 20, 2020, 2025 WL 2049290, at *1, and plaintiff's

claims here involve events occurring on July 26, 2020. Additionally, in Kristiansen, the plaintiff alleges

that she was affected by "red chemical agents" and "flash bangs" and was arrested, id., whereas, here,

plaintiff alleges that she was shot with an impact munition while walking away from a protest. For the

foregoing reasons, the Court denies plaintiff's motion to consolidate with leave to renew.

4 Plaintiff also claims that this case was joined with Urbani v. United States, No. 3:23-cv-01920-AN, which is also

before this Court. This assertion is incorrect. Plaintiff has not joined Urbani as a plaintiff, and the two cases have not

been consolidated in any way.

5 Additionally, Judge Immergut recently issued an opinion and order on the motion to dismiss in Kristiansen. See

2025 WL 2049290. It is thus also somewhat unclear to the Court the scope of consolidation that plaintiff is requesting.

See Local R. 42-3(7).

CONCLUSION

Accordingly, plaintiff's Motion for Joinder, ECF [5], is DENIED with leave to renew, and

defendant's Motion to Dismiss, ECF [10], is GRANTED in part and DENIED in part. Plaintiff's second

claim for intentional infliction of emotional distress is dismissed with leave to amend. Any amended

complaint must be filed within fourteen (14) days of the date of this Opinion and Order.

IT IS SO ORDERED.

DATED this 28th day of August, 2025.

/] fe € ) 1

Mr. J pe0On

Adrienne Nelson

United States District Judge

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