Kelsay

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

CHRISTOPHER P. KELSAY, Case No. 6:25-cv-00219-MC

Plaintiff, OPINION AND ORDER

v.

DEPUTY TINSLEY WISER, JANE

DOE, LANE COUNTY, and DOES 1–11,

Defendants.

MCSHANE, Judge:

Plaintiff Christopher Kelsay brings this action against Defendants Tinsley Wiser, Jane

Doe, and Lane County, asserting various 42 U.S.C. § 1983 and state law claims. First Am.

Compl. at 1, ECF No. 4. Before the Court is Defendants’ Motion to Dismiss for failure to state a

claim for relief, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. Dismiss at 1,

ECF No. 10. Because Plaintiff’s claims for Municipal Liability and Negligence rely on bare legal

conclusions and not specific factual allegations, Defendants’ motion is GRANTED as to claims

four, and eight. Because Plaintiff’s claim for assault does not specify which allegations support

this claim and generally leaves Defendants unable to adequately defend themselves, Defendants’

motion is GRANTED as to claim five. Plaintiff is granted leave to amend.

BACKGROUND

While working as a rideshare driver on a snowy morning in Eugene, Oregon, Plaintiff

received a ride request at approximately 2:15 A.M. Am. Compl. at ¶¶ 12–14, 17. Due to the

snow on the ground, Plaintiff “turned the steering wheel slightly and then straightened out the

vehicle in order to gauge [its] traction.” Id. at ¶ 18. As Plaintiff drove, a police SUV “rapidly

approached his vehicle from behind” and tailgated “[P]laintiff’s vehicle in an intimidating

manner at a short distance behind [P]laintiff’s vehicle.” Id. at ¶¶ 19–20. Defendant Wiser drove

the SUV while Defendant Doe rode in the passenger seat. Id. at ¶¶ 6, 20. After “tailgating

[P]laintiff’s vehicle for a prolonged period of time,” Defendant Wiser activated the vehicle’s

emergency lights and Plaintiff pulled his vehicle off the road and into a driveway. Id. at ¶¶ 20,

28–29. Defendant Wiser then ordered Plaintiff to pull forward, and Plaintiff complied. Id. at ¶¶

30–31.

Defendant Wiser exited the police car and knocked on the window of Plaintiff’s vehicle.

Id. at ¶ 32. Plaintiff opened his driver-side door, and “Defendant Wiser shined a bright flashlight

into Plaintiff’s eyes[.]” Id. at ¶¶ 33–34. Plaintiff immediately protested, directing Defendant

Wiser “to get the light out of his eyes and out of his vehicle.” Id. at ¶ 34. Defendant Wiser asked

for Plaintiff’s license, registration, and proof of insurance. Id. at ¶ 35. Plaintiff complied with the

request, and Defendant Wiser returned to her vehicle. Id. at ¶¶ 36–37. Defendant Wiser returned

to Plaintiff’s car and asked Plaintiff to participate in a field sobriety test. Id. at ¶¶ 38–39. Plaintiff

refused, telling Defendant Wiser “that he had had as much alcohol to drink as she had and that he

would not do the side show on the side of the street but that if she wanted to do so she could.” Id.

at ¶ 39. Defendant Wiser ordered Plaintiff out of the car and arrested Plaintiff, handcuffing “him

behind the back.” Id. at ¶¶ 40–43. Defendant Wiser gave Plaintiff a partial Miranda warning, and

then Defendants Wiser and Doe physically searched Plaintiff’s person. Id. at ¶¶ 44–46.

Defendant Wiser then “searched [P]laintiff’s car without his consent” and “caused a tow truck to

seize [P]laintiff’s car.” Id. at ¶¶ 48–49.

Defendant Wiser took Plaintiff to the Lane County Jail and directed Plaintiff to

participate in a breath and urine test, to which Plaintiff complied: Both tests came back negative

for alcohol or any other controlled substances or pharmaceuticals. Id. at ¶¶ 56–61. Defendant

Wiser cited Plaintiff for reckless driving and DUI. Id. at ¶¶ 62–63; Id. Exs. 0–1. When Plaintiff

appeared in court, he discovered that the district attorney had decided not to file charges against

him. Id. at ¶¶ 73–75. As a result of the arrest, Plaintiff paid at least $785 and lost the opportunity

to work, costing him lost income. Id. at ¶¶ 80–81. Plaintiff also alleges that he suffered from

physical pain, mental suffering, fear, grief, anxiety, flashbacks, embarrassment, and degradation.

Id. at ¶ 82.

LEGAL STANDARD

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain

sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Under Twombly, courts assess a plaintiff’s claims from a

two-step approach. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). First, the Court must strike

out any legal conclusions, including “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements[.]” Id. Second, the Court must determine whether the

remaining factual allegations state a plausible claim for relief. Id. This is a context-specific task,

requiring the Court “to draw on its judicial experience and common sense.” Id. at 679. To

establish plausibility, the well-pleaded facts must allow for “the court to infer more than the mere

possibility of misconduct”—they must “allow[] the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. at 678–79. Additionally, “[w]here a

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting

Twombly, 550 U.S. at 557). Finally, besides demanding plausibility, the pleading standards also

require the plaintiff to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests[.]” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)).

DISCUSSION

I. Plaintiff’s Theory

Although far from clear in his Amended Complaint, Plaintiff’s theory centers on what

plausibly could be characterized at this early stage in the pleadings as retaliatory conduct on the

part of the Defendants. Plaintiff suggests that, although Defendants Wiser and Doe determined

that he was not impaired following a questionable traffic stop, they decided to cite him anyway,

for no other reason than they believed that he was acting like a jerk towards law enforcement.

Accepting this theory, Plaintiff has illustrated that Defendants plausibly lacked reasonable

suspicion to initiate the traffic stop, lacked probable cause to search and seize his vehicle, lacked

probable cause to arrest Plaintiff, and were at least motivated in part by retaliatory animus, as

explained below.

II. Section 1983 Claims

Plaintiff brings multiple section 1983 claims, including a Monell claim, against

Defendants. Section 1983 claims require “(1) that a right secured by the Constitution or laws of

the United States was violated, and (2) that the alleged violation was committed by a person

acting under the color of State law.” Benavidez v. Cnty. of S. D., 993 F.3d 1134, 1144 (9th Cir.

2021). Here, only the first element—whether Defendants violated Plaintiff’s constitutional

rights—is at issue.

A. Unreasonable Seizure of a Person

Plaintiff’s first 1983 claim alleges that Defendants Wiser and Doe violated his Fourth

Amendment right against unreasonable searches and seizures first when they pulled him over

without reasonable suspicion, and again when they arrested him without probable cause. Am.

Compl.at ¶¶ 103, 107–08. At this early stage, each are well-pled.

i. Traffic Stop

Plaintiff has plausibly alleged that Defendants Wiser and Doe initiated a traffic stop

against Plaintiff without reasonable suspicion, in violation of the Fourth Amendment. The Ninth

Circuit has explained that for a traffic stop to comply with the Fourth Amendment, there must be

reasonable suspicion. United States v. Lopez-Soto, 205 F.3d 1101, 1104–05 (9th Cir. 2000).

“Reasonable suspicion ‘exists when an officer is aware of specific, articulable facts which, when

considered with objective and reasonable inferences, form a basis for particularized suspicion’”

of criminal activity. United States v. Evans, 786 F.3d 779, 788 (9th Cir. 2015) (quoting United

States v. Montero–Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc)). Reasonable

suspicion requires “less than probable cause or a preponderance of the evidence”—but a “mere

hunch” is insufficient. United States v. Steinman, 130 F.4th 693, 709 (9th Cir. 2025) (citations

omitted). In evaluating the validity of a traffic stop, a court must “consider the totality of the

circumstances.” Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016); See also Navarette v.

Cal., 572 U.S. 393, 397 (2014); United States v. Arvizu, 534 U.S. 266, 273 (2002).

Here, Plaintiff plausibly alleges that Defendants Wiser and Doe lacked reasonable

suspicion when they initiated the traffic stop. Plaintiff alleges that he “turned the steering wheel

slightly and then straightened out the vehicle in order to gauge the traction of the vehicle.” Am.

Compl. at ¶ 18. Defendant characterizes this as “swerving” and argues that Defendants’

perception of the event was a sufficient basis for reasonable suspicion that Plaintiff either

committed a traffic violation or was impaired. Defs.’ Mot. Dismiss at 6. However, at this stage,

the Court must view the facts not as Defendants describe them, but as they are alleged in the

Amended Complaint. The Amended Complaint merely describes Plaintiff turning the wheel and

then straightening out the vehicle, purportedly to gauge its traction in the snow. Plaintiff does not

allege anything indicating that he drove in a reckless manner or was about to commit a crime or

traffic violation. In fact, there are no allegations indicating that Defendants witnessed Plaintiff

“straighten[ing] out the vehicle.” Absent any indication that Plaintiff even crossed into another

lane or gave Defendants any reason to think Plaintiff had broken any traffic law, Plaintiff’s claim

that Defendants lacked reasonable suspicion to initiate a traffic stop is plausible.1

ii. Arrest

Plaintiff plausibly alleges that Defendant Wiser arrested him without probable cause, in

violation of the Fourth Amendment. “Probable cause to arrest exists if officers have knowledge

or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe

that an offense has been or is being committed by the person being arrested.” Rodis v. City &

Cnty. of S.F., 558 F.3d 964, 969 (9th Cir. 2009) (quoting United States v. Lopez, 482 F.3d 1067,

1072 (9th Cir. 2007)). The events as described in the Amended Complaint would not lead a

reasonable person to believe that Plaintiff had committed any offense. All relevant events and

1 The Court understands that “[t]he reasonable suspicion standard is not a particularly high threshold to reach.”

Steinman, 130 F.4th at 709 (cleaned up). At this stage, however, Plaintiff controls what allegations to include in, or

omit from, the Complaint. While the Court can envision numerous minor traffic violations that could provide

Defendants with reasonable suspicion necessary to initiate the traffic stop, Plaintiff includes no such facts in his

Amended Complaint.

circumstances for a probable cause determination are as follows: It was around 2:00 A.M. with

snow on the ground; Plaintiff had “turned the steering wheel slightly and then straightened out

the vehicle”; Plaintiff had been instructed to move his vehicle forward since he had stopped in

front of a driveway, to which he obliged; Plaintiff protested when Defendant Wiser shined a light

into Plaintiff’s eyes; and Plaintiff declined to perform a field sobriety test. Am. Compl. at ¶¶ 14,

17–18, 29–31, 34, 38–39.

Defendants argue that the only reasonable inference allowed from each event and

circumstance described above points to Plaintiff having been under the influence and thus

provided Defendants with probable cause to arrest Plaintiff for DUI. Defs.’ Mot. Dismiss at 4–5.

The Court agrees that facts like the time of night, an apparent state of agitation, having to be

instructed to pull forward, etc., may contribute to an officer’s reasonable inference of

intoxication. But here, there are no overt indicators of intoxication as seen in other cases that

would allow for a reasonable inference of probable cause, such as the smell of alcohol, slurred

speech, or other behaviors strongly correlative of intoxication. See e.g., Burgett v. Sanborn, 2015

WL 4644619 at *4 (D. Or. May 14, 2015) (finding that plaintiff’s admission of drinking, smell of

alcohol, having to be asked to remove his license from his wallet, exhibiting four out of the six

validated clues to impairment on the horizontal gaze nytugmus test, and failing a field sobriety

test were sufficient for a finding of probable cause for DUI); see also Devermont v. City of Santa

Monica, 2014 WL 2969629 *4 (C.D. Cal. July 1, 2014) (finding that plaintiff’s illegal right turn

on red, failure to pull over more quickly, and refusal to perform a field sobriety test, in light of

no physical indications of intoxication, were insufficient for a finding of probable cause on

summary judgment); Thompsen v. Breshears, 2009 WL 2581556 *7 (E.D. Wash. Aug. 14, 2009)

(finding that “Plaintiff’s fumbling with the registration, having blood shot and dilated eyes, and

[] traffic violations, including the fact that after Plaintiff was stopped, she pulled to the side of

the road with both right tires on the sidewalk and parked directly in front of a marked fire lane”

were barely sufficient for reasonable suspicion required to conduct a field sobriety test).

Without an overt indicator of intoxication, Plaintiff’s behavior and general countenance

of agitation, at least at this stage, are plausibly consistent with Plaintiff’s general theory that: (1)

this was a sham stop conducted under the assumption that someone driving at 2:00 AM may be

impaired; (2) after pulling Plaintiff over, Defendant Wiser quickly realized that Plaintiff was not

impaired; (3) Defendant Wiser did not like Plaintiff’s attitude during the stop; and (4) Defendant

Wiser arrested Plaintiff merely to teach him a lesson (rather than on a genuine suspicion that

Plaintiff violated a traffic law or drove while intoxicated). Given that Plaintiff passed a drug test

and blew a 0.00 BAC after his arrest, it is at least plausible that Defendant Wiser did not have

enough information to support a reasonable belief that Plaintiff was driving under the influence.

Defendants must dispute this allegation with facts more typically developed in a Motion for

Summary Judgement.

B. Unreasonable Search and Seizure of Property

Plaintiff’s third section 1983 claim alleges unreasonable search and seizure of property

against Defendants Wiser and Doe, invoking Amendments IV and V.2 Am. Compl. at 16. At

issue here is whether Plaintiff’s car was unlawfully searched and seized. In the absence of a

warrant, a vehicle may be searched or seized if there is probable cause that the vehicle contains

evidence of a crime. Steinman, 130 F.4th at 711. In the context of searches and seizures,

“[p]robable cause exists when, under the totality of the circumstances, ‘there is a fair probability

that contraband or evidence of a crime will be found in a particular place.’” Id. (quoting United

2 Although Plaintiff lists the Fifth Amendment, he has made no allegations invoking a Fifth Amendment right either

in the Amended Complaint or Response.

States v. Rodgers, 656 F.3d 1023, 1028 (9th Cir. 2011)).

As demonstrated above, Plaintiff has plausibly alleged that Defendants lacked not only

reasonable suspicion to pull him over initially, but probable cause to arrest Plaintiff. At this

stage, there are no allegations that would lead the officers to believe Plaintiff’s vehicle would

contain contraband or evidence of any crime.

Defendants offer two arguments for why the search and seizure of the car was lawful, to

no avail. Defendant’s first argument is that the search was “justified as a search incident to

arrest” under Arizona v. Gant, 556 U.S. 332, 338 (2009). Defs.’ Mot. Dismiss at 9. However, the

Gant framework presupposes that the arrest is lawful. Gant, 556 U.S. at 338. As described

above, the Amended Complaint plausibly alleges that Plaintiff’s arrest was unlawful.

Defendants argue alternatively that the search was justified under the community

caretaking doctrine, in which “police officers may impound vehicles that jeopardize public safety

and the efficient movement of vehicular traffic.” Defs.’ Mot. Dismiss at 9–10 (cleaned up)

(quoting Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005). However, there are no

factual allegations in the Amended Complaint suggesting that Plaintiff’s car was jeopardizing

public safety or the efficient movement of traffic.

Because the Amended Complaint plausibly alleges that Defendants’ warrantless search

and seizure of Plaintiff’s vehicle was unlawful, Defendants’ Motion to Dismiss Plaintiff’s third

claim is DENIED.

C. Retaliation for Exercising First Amendment Rights

Plaintiff’s second 1983 claim alleges that Defendant Wiser retaliated against Plaintiff for

protesting the unlawful stop, in violation of Plaintiff’s First Amendment rights. Am. Compl. at

14. To bring a First Amendment claim under section 1983, Plaintiff must allege the following:

(1) [he] engaged in constitutionally protected activity; (2) the

defendant's actions would “chill a person of ordinary firmness”

from continuing to engage in the protected activity; and (3) the

protected activity was a substantial motivating factor in the

defendant's conduct—i.e., that there was a nexus between the

defendant's actions and an intent to chill speech.

Arizona Students’ Assoc. v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (quoting

O’Brien v. Welty, 818 F.3d 920, 933–34 (9th Cir. 2016)).

At this stage, there is no dispute that Plaintiff was engaged in constitutionally protected

activity in two instances: first, when he told Defendant Wiser to “stop shining a light in his eyes

and in his vehicle” and second, when he told Defendant Wiser “as much as you” in response to

Defendant Wiser’s question of how much he had had to drink.

The second and third elements are well-pled. For the second element, a court assesses

from an objective standard whether a defendant’s actions “would ‘chill a person of ordinary

firmness’ from engaging in [constitutionally] protected activities”—the inquiry is not whether

the plaintiff was actually chilled. O’Brien, 818 F.3d at 933 (quoting Pinard v. Clatskanie Sch.

Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)). The third element endeavors a court to ask whether

“the protected activity was a substantial or motivating factor in the defendant’s conduct.” Id. at

932 (quoting Pinard, 467 F.3d at 770).

Defendant essentially makes two arguments for why neither element was sufficiently

pled: First, deputy Wiser was motivated by observable evidence of a DUI, so she lacked a

retaliatory animus; and second, Plaintiff has failed to offer specific factual allegations

establishing either element. Defs.’ Mot. Dismiss at 7–8. Defendants’ first argument is predicated

on the plausibility of Defendant Wiser’s conduct having been lawful, which, as discussed above,

the Court finds unpersuasive at this stage. Plaintiff’s retaliation claim depends on the theory that

despite recognizing that Plaintiff was not impaired, Defendant Wiser arrested Plaintiff anyway,

essentially to teach Plaintiff not to talk back to officers during a traffic stop. Regarding

Defendants’ second argument, although the Amended Complaint is an ocean of legal conclusions

and formulaic recitations, there are enough islands of factual allegations to establish both

elements.

For the second element, Plaintiff has offered sufficient factual allegations to reasonably

infer that Defendant Wiser’s actions would chill a person of reasonable firmness. Without legal

authority, she arrested Plaintiff, towed his car—which cost him hundreds of dollars—caused

Plaintiff lost income, and caused Plaintiff to have to go to court, in addition to all the

accompanying mental stress. These actions would chill a reasonable person from protesting a

traffic stop in the future. For the third element, there are sufficient factual allegations to

reasonably infer that Defendant Wiser was motivated by a retaliatory animus. Given the lack of

reasonable suspicion and probable cause, and with no other explanations found in the Amended

Complaint, the Court is left to infer that Defendant Wiser’s arrest of Plaintiff was motivated at

least in part to retaliate against Plaintiff’s verbal protests against the unlawful traffic stop.

D. Monell Liability

Plaintiff’s fourth 1983 claim alleges Monell liability against Defendant Lane County.

Am. Compl. at 16. In a Monell claim, “a local government may be liable for constitutional torts

committed by its officials according to municipal policy, practice, or custom.” Weiner v. S. D.

Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) (citing Monell v. Dept. of Social Servs. of N.Y., 436

U.S. 658, 690–91 (1978)). In order to impose Monell liability, a plaintiff must show: “(1) that he

possessed a constitutional right of which he was deprived; (2) that the municipality had a policy;

(3) that this policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and

(4) that the policy is the ‘moving force behind the constitutional violation.’” Oviatt By and

Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v.

Harris, 489 U.S. 378, 389–91 (1989)). Regarding the second element, in the absence of an

official “policy,” Monell liability may also be established on the basis of a longstanding and

persuasive custom; an omission amounting to deliberate indifference; or through an official’s

ratification of a subordinate’s unconstitutional action, where that official has final policy-making

authority. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Here, Plaintiff fails to allege that

Lane County had any policy or custom leading to the Constitutional violations. Plaintiff also fails

to allege that any final decision-maker ratified Defendant Wiser’s actions. Instead, Plaintiff’s

allegations related to municipal liability consist merely of conclusory statements absent specific

factual allegations plausibly suggesting an entitlement to relief.

Regarding Plaintiff’s policy theory, Plaintiff alleges that “[u]pon information and belief,

the written policy on the investigation of reckless driving and driving under the influence of

intoxicants was deficient on its face.” Am. Compl. at ¶ 130. Specifically, Plaintiff alleges that the

policy is deficient because it fails to adequately train staff on how to recognize reckless driving

or DUI, it fails to establish proper protocols for how to investigate reckless driving or DUI, it

fails to address how to investigate reckless driving or DUI in wet or icy conditions, and it fails to

prevent violations of law by employees. Id. at ¶¶ 130–131, 134. The problem, of course, is that

Plaintiff fails to point to any actual policy and, instead, simply presumes that a policy exists and

then presumes that the policy must be deficient.

Plaintiff’s theory of custom is simply that “there was a de facto custom” of allowing

employees to fabricate reasonable suspicion and probable cause, and of not ensuring that

deputies would follow proper procedure. Id. at ¶¶ 132–133. Plaintiff’s theory of omission is

simply that “Lane County was deliberately indifferent to the substantial risk that its policies were

inadequate to prevent violations of law by its employees,” and deliberately indifferent towards

“the known or obvious consequences of its failure to train its officers and employees

adequately.” Id. at ¶ 135. Plaintiff’s theory of ratification is that Sheriff Harrold “and the other

policymaker defendants, who had final policymaker authority” ratified the conduct of

Defendants Wiser and Doe, “in that they knew of and specifically approved of the conduct[.]” Id.

at ¶ 138. None of those allegations, however, are specific factual allegations entitled to a

presumption of truth.

The primary issue with all of Plaintiff’s Monell theories is that they lack the necessary

factual support to establish plausibility. Plaintiff offers only conclusory statements which amount

to little more than speculation. Even assuming that the individual Defendants violated Plaintiff’s

Constitutional rights, mere employment of a tortfeasor is insufficient for municipal liability.

Monell, 436 U.S. at 691 (“a municipality cannot be held liable under § 1983 on a respondeat

superior theory”); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143–44 (9th Cir. 2012) (noting

heightened pleading requirements for Monell claims “are necessary to avoid imposing

respondeat superior liability” because “when a municipal employee commits a tort, it could

always be alleged that the municipality failed to enact a policy that would have prevented the

tort.”). Although Plaintiff tries to skirt around this requirement by generally alleging “cumulative

and persistent failures and misdeeds of the entire police department,” Plaintiff provides no

specific, factual allegations of a series of similar misdeeds, let alone one single other misdeed.

See Am. Compl. at ¶ 136.

For Plaintiff’s ratification theory, it is insufficient to baldly conclude that the Sheriff

Harrold “knew of and specifically approved” of Defendants’ conduct. Something more must be

offered to substantiate what is otherwise a factually untethered conclusion. Id. at ¶ 138.

Because Plaintiff’s conclusory statements fail to allege the existence of a policy, custom,

omission, or ratification of unconstitutional conduct giving rise to Plaintiff’s injuries, Plaintiff

fails to state a Monnel claim.

III. State Law Claims

Plaintiff also brings state law claims of assault, battery, false imprisonment, and

negligence, each against “all Defendants.” Id. at 19–20. Although somewhat inartful, enough

facts are mustered for some claims to meet the pleading requirements. In reaching this

conclusion, the Court assumes, as discussed above, that Defendant Wiser lacked: (1) reasonable

suspicion to pull Plaintiff over; and (2) probable cause to arrest Plaintiff. If, however, discovery

reveals that Defendant Wiser had probable cause to arrest Plaintiff, Plaintiff’s state-law claims

may be barred. See Farris v. Culp, No. 20-CV-00290, 645 F. Supp. 3d 1058 (E.D. Wa. 2022)

(noting that plaintiff’s state claims for false arrest, false imprisonment, and malicious prosecution

related to her arrest and prosecution for DUI failed because “the existence of probable cause is a

complete defense to all” of those claims).

A. Assault

Plaintiff’s assault claim fails to meet the pleading standard because it fails to give fair

notice to Defendants of what the grounds are for the claim. In Oregon, an assault occurs when

“(1) a person acts, intending to either; (2) cause harmful or offensive contact with another person

or to cause another person apprehension of imminent harmful or offensive contact with that other

person; and (3) the other person reasonably believes a harmful or offensive contact would

occur. Underwood v. City of Portland, 319 Or. App. 648, 656 (2022) (emphasis omitted) (citing

Cook v. Kinzua Pine Mills Co. et al, 207 Or. 34, 47 (1956); Restatement (Second) of Torts § 21

(1965)). Plaintiff’s allegations merely recite these elements, aiding neither the Court nor the

Defendants in understanding which actions constitute assault. See Am. Compl. at ¶¶ 139–144.

There are numerous possibilities to be found in the general allegations, each of which seemingly

involve only Defendant Wiser: the aggressive tailgating, shining the light in Plaintiff’s eyes, or

perhaps something that occurred when Plaintiff was taken into custody. Because it isn’t clear

which of these, either individually or in aggregate (or something else altogether), Plaintiff is

choosing to pursue, Plaintiff’s assault claim fails to give fair notice of the grounds upon which it

rests.

B. Battery and False Imprisonment

Plaintiff also brings Battery and False Imprisonment claims. A battery occurs when “(1) a

person act[s] with intent to cause harmful or offensive contact with another person, and (2) those

actions directly or indirectly cause a harmful or offensive contact with that other person.”

Underwood, 319 Or. App. at 656–57 (citing Bakker v. Baza'r, Inc., 275 Or. 245, 249

(1976); Restatement §§ 13, 18)). False Imprisonment occurs when “(1) the defendant confined

the plaintiff; (2) the defendant intended the act of confinement; (3) the plaintiff was aware of

being confined; and (4) the confinement was unlawful.” Cruz v. Multnomah Cnty., 279 Or. App.

1, 5 n.4 (2016) (citing Fossen v. Clackamas Cnty., 271 Or. App. 842, 847 (2015)).

Based on the general allegations, the Court infers that Defendant Wiser plausibly

committed battery when she handcuffed and arrested Plaintiff, and plausibly committed the tort

of false imprisonment when she initiated a traffic stop without reasonable suspicion and arrested

Plaintiff without probable cause. The allegations are less clear with respect to Defendant Doe.

Plaintiff merely alleges that Defendant Doe “failed to intercede to stop the illegal arrest.” At this

pre-discovery stage in the litigation, it is unclear whether Defendant Doe had a meaningful role

in the arrest or whether they were aiding and abetting Defendant Wiser in the alleged

misconduct. The court is not willing to dismiss at this stage without an opportunity for the

Plaintiff to discover what role Defendant Doe played in the arrest.

C. Negligence

Plaintiff fails to offer a coherent theory of negligence, as Plaintiff only alleges intentional

conduct by Defendants. For a negligence claim, a plaintiff must plead:

(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.

Piazza ex rel. Piazza v. Kellim, 271 Or.App. 490, 516 (2015) (alterations in original) (quoting

Stewart v. Kids Incorporated of Dallas, OR, 245 Or.App. 267, 268 (2011)).

Plaintiff identifies the harms at risk and a relationship between the parties but fails to

offer anything more than legal conclusions addressing the foreseeability of the risk, that the risk

of harm was protected by law, that Defendants’ conduct was unreasonable, and that Defendants

were the actual and proximate cause of the harm. See Am. Compl. at ¶¶ 160–68. Looking

towards the general allegations to fill in these gaps, Plaintiff has only alleged intentional conduct

by Defendants, which, as Defendants note, cannot support a theory of negligence. See Kasnick v.

Cooke, 116 Or. App. 580, 583 (1992) (supporting the proposition that conduct which can only be

perceived as intentional, such as a fist fight, cannot “as a matter of law and fact,” be negligent.).

In fact, the allegations appear to the Court to relate only to intentional actions on the part

of Defendant Wiser. Plaintiff alleges that Defendant Wiser intentionally initiated a traffic stop

despite knowing that she lacked reasonable suspicion. Then, upon learning that Plaintiff was not

under the influence, Defendant Wiser intentionally set out to retaliate against Plaintiff—

essentially for talking back during the stop—by citing and arresting Plaintiff despite knowing

that she lacked probable cause to do so. None of these allegations are consistent with any

negligent act by Defendant Wiser. Additionally, if Defendant Wiser was merely incorrect that

Plaintiff: (1) crossed a lane line or drove recklessly; or (2) was under the influence, it appears

that she would be immune to Plaintiff’s negligence claim. Dickerson v. City of Portland, No.

3:19-01126, 2020 WL 7391267, at * 9 (D. Or. 2020) (listing District of Oregon cases barring

negligence claims “when the negligence claim is based on the same operative facts as the Section

1983 claim” and concluding that because the “the officers had probable cause to arrest

Dickerson, Dickerson may not maintain a separate negligence claim.”); Or. Rev. St. 30.265(6)(c)

(“Every public body and its officers, employees and agents acting within the scope of their

employment or duties . . . are immune from liability for [a]ny claim based upon the performance

of or the failure to exercise or perform a discretionary function or duty, whether or not the

discretion is abused.”); Or. Rev. St. 133.315(1) (noting no officer may be held “civilly liable for

making an arrest . . . provided the peace officer acts in good faith and without malice.”).

The Court recognizes that a plaintiff may plead inconsistent but alternative claims for

relief. Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir. 1985); Fed. R. Civ. P. 8(d)(3)

(“A party may state as many separate claims or defenses as it has, regardless of consistency.”).

Although Plaintiff is not precluded from alleging a theory of negligence merely because he has

alleged intentional conduct, his negligence theory lacks any alleged facts to stand on. As such,

Plaintiff is granted leave to amend to allege alternative facts from which a plausible theory of

negligence can be reasonably inferred.

IV. Qualified Immunity

Defendants contend that they are entitled to qualified immunity, which would preclude

Plaintiff from obtaining relief. Defs.’ Mot. Dismiss at 16. Qualified immunity “shields

Government officials ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights[.]’” Iqbal, 556 U.S. at 672 (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law.” White v. Pauly, 580 U.S. 73, 79 (2017)

(internal citations omitted). Accepting Plaintiff’s theory as true, Defendants are not entitled to

qualified immunity. No reasonable officer would believe, under the facts as alleged, that such

intentional acts of malevolence following a traffic stop were lawful.

CONCLUSION

Defendants’ Motion to Dismiss, ECF No. 10, is GRANTED in part. Plaintiff’s fourth

claim, alleging Monell liability, fifth claim, for Assault, and eighth claim, for Negligence, are

DISMISSED. Plaintiff is granted 30 days to file an amended complaint, if he chooses, to address

the deficiencies with respect to those three claims.

IT IS SO ORDERED.

DATED this _8_t_h_ day of December, 2025.

________/s_/M__i_c_h_a_el_ _M_c_S_h_a_n_e_____

Michael McShane

United States District Judge