Wade

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NICOLE WADE, Case No. 3:24-cv-813-SI

Plaintiff, OPINION AND ORDER

v.

MICHAEL SVOBODA; GEORGE

BURKE; and the CITY OF LAKE

OSWEGO,

Defendants.

Louren Oliveros, LOUREN OLIVEROS LAW LLC, 50 Charles Lindbergh Boulevard, Suite 205,

Uniondale, NY 11553. Of Attorneys for Plaintiff.

Luke W. Reese, GARRETT HEMANN ROBERTSON PC, PO Box 749. Salem, OR 97308.

Of Attorneys for Defendant Michael Svoboda.

Lauren E. Nweze and Amanda J. Rockett, WOOD SMITH HENNING & BERMAN LLP, 12755

SW 69th Avenue, Suite 100, Portland, OR 97223. Of Attorneys for Defendants Chief George

Burke and City of Lake Oswego.

Michael H. Simon, District Judge.

Nicole Wade (“Wade”) brings this lawsuit against three defendants: (1) Michael Svoboda

(“Svoboda”), a former police officer with the Lake Oswego Police Department; (2) George

Burke (“Burke”), currently the Chief of the Lake Oswego Police Department; and (3) the City of

Lake Oswego, Oregon. The Court refers to Burke and the City of Lake Oswego collectively as

the “City Defendants.” Wade alleges that she and Svoboda engaged in a sexual relationship from

2019 to 2023. Wade asserts federal claims under 42 U.S.C. § 1983 (“§ 1983”) against Svoboda

alleging violations of her constitutional rights under the First, Fourth, and Fourteenth

Amendments and asserts state law claims alleging intentional infliction of emotional distress and

intentional spoliation of evidence. Against the City Defendants, Wade alleges that they

contributed to Svoboda’s violation of her constitutional rights and asserts a Monell liability claim

under § 1983, as well as state law claims alleging negligent training, negligent supervision, and

intentional spoliation of evidence.

Now before the Court are motions for summary judgment. Svoboda moves for summary

judgment against all five claims asserted against him, and the City Defendants move for

summary judgment against all claims asserted against them. For the reasons discussed below, the

Court grants Svoboda’s motion in part and the City Defendants’ motion in full.

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). To meet its burden, “the

moving party must either produce evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving party does not have enough evidence of an

essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. v.

Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving

party need only point out ‘that there is an absence of evidence to support the nonmoving party’s

case.’” (quoting Celotex, 477 U.S. at 325)). “Where the moving party will have the burden of

proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of

fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007). “If the moving party meets its initial burden, the non-moving party

must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there

is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986)).

The Court must view the evidence in the light most favorable to the non-movant and

draw all reasonable inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters,

Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge . . . ruling on a motion for summary judgment,” the “mere existence of a scintilla

of evidence in support of the plaintiff’s position [is] insufficient.” Anderson, 477 U.S. at 252,

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

nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

BACKGROUND

From before Svoboda met Wade in April 2019 until his resignation in October 2023,

Svoboda worked as a police officer for the Lake Oswego Police Department. ECF 69-12;

ECF 73-6 at 18:10-11. George Burke became Police Chief of that department on September 9,

2022. ECF 68 ¶ 1.

Before the events giving rise to Wade’s claims, the City Defendants were aware of an

internal affairs investigation in February 2022 into Svoboda’s conduct with women, including

allegations that he approached a woman romantically while on duty. That investigation

concluded that the allegations against Svoboda were unsubstantiated. Based on that finding,

Svoboda was not disciplined. ECF 82 ¶ 3.

Wade met Svoboda in April 2019 when Svoboda contacted her on the dating app, “Plenty

of Fish.” ECF 73-1 at 47:6-48:6. Svoboda’s profile indicated that he was a police officer. Id. at

29:7-13. Before meeting Svoboda, Wade was a victim of domestic abuse and a mother. She

exchanged private messages with Svoboda using the app and through text messages. Id. at 27:6-

22, 21:3-4, 56:5-57:8. Shortly after their initial communication, Svoboda asked Wade if he could

come to her apartment. Id. at 58:3-7. She assented and gave Svoboda her address, and the two

then spent about an hour together. Id. at 59:8-61:3. During that time, Svoboda attempted to

initiate a sexual interaction, but Wade said that she did not want to have sex. Id. at 66:1-10. She

shared with Svoboda her history with domestic violence and explained that she was preparing to

attend a hearing regarding the domestic violence that she had experienced by a former partner.

Svoboda then told Wade that she needed somebody like him to protect her. Id. at 59:16-25.

Wade attended a plea hearing for her domestic abuser on April 15, 2019. Id. at 53:3. On

the same night as that hearing, or early in the morning of April 16, 2019, Svoboda asked Wade to

meet him for sex. Id. at 72:11-73:10. Wade agreed and met Svoboda in the parking lot of a

business complex in Lake Oswego. Svoboda was on duty at the time and using his official police

vehicle when this interaction occurred. Wade and Svoboda had outdoor sex, near their cars.

Shortly after this encounter, Svoboda told Wade to delete their messages, to not tell or report to

anyone what had happened, and to remain silent because both could get in trouble for what they

had just done. Id. at 74:17-76:17. In 2023, Svoboda was investigated for this on-duty

misconduct, pleaded guilty, resigned his position from the Lake Oswego Police Department, and

is no longer eligible to work as a police officer. ECF 69-12.

From April 2019 to April 2023, Wade and Svoboda intermittently continued their sexual

relationship, although there were many periods during this time when the two did not interact or

even communicate with each other. On several occasions, Svoboda used his personal phone to

send Wade sexually explicit messages and photographs, using different social media and

messaging platforms. Svoboda continued to tell Wade not to tell anyone about their sexual

relationship, especially his on-duty misconduct. ECF 73-1 at 103:20-104:23.

On four separate occasions during this period, Svoboda indicated his knowledge of

Wade’s precise location, even though she had not shared that information with him. Svoboda did

this by messaging Wade to ask her why she was in a specific location at that moment. During at

least one of those occasions, Svoboda told Wade that she was “too close” to a police station.

Wade found these texts to be unsettling and even threatening. ECF 73-7 at 2 (Interrogatory 17).

Wade and Svoboda had their final sexual encounter on April 9, 2023. ECF 73-1 at 150:3-

151:17. After that, Wade learned that Svoboda had also attempted to initiate a similar

relationship with one of Wade’s friends. This discovery prompted Wade to report Svoboda’s

misconduct to the City Defendants on May 7, 2023. Id. 132:5-7. Shortly after making her report,

Wade sent a message to Svoboda telling him that she had reported his misconduct to his

employer, the Police Department. Not realizing that Wade had already made her report, Svoboda

responded by sending Wade messages and videos pressuring Wade not to share any information

about his on-duty misconduct or their relationship generally. Wade and Svoboda have not

communicated since. Id. at 114:4-115:6.

Svoboda deleted the records of his communications with Wade and other women with

whom he had communicated while on duty in an attempt to prevent his misconduct from being

discovered. ECF 73-6 at 119:25-124:25. Svoboda also contacted Wade’s friend to ask about

what Wade had reported or was still reporting to his employer. Id. at 113:20-114:20.

Upon learning of the May 7, 2023 report from Wade, Police Chief Burke referred the

matter to the Oregon City Police Department for investigation by that agency. ECF 82 ¶¶ 4-5.

The City Defendants, however, did not immediately place Svoboda on leave or communicate to

him that he was under investigation until several months after the investigation began. Id. ¶¶ 6-8.

The Oregon City Police Department’s investigation ultimately found Wade’s allegations of

Svoboda’s on-duty misconduct to be accurate. ECF 69-12. As noted, Svoboda pleaded guilty and

was convicted of official misconduct in the second degree, and he resigned from the Lake

Oswego Police Department in October 2023. Id.

Wade filed a notice under the Oregon Tort Claims Act on September 29, 2023, and

commenced this lawsuit on April 9, 2024, in the Circuit Court for Clackamas County. ECF 69-

10. Defendants timely removed the action to federal court.

DISCUSSION

A. Svoboda’s Motion for Summary Judgment

1. First Amendment Retaliation

Svoboda argues that Wade fails to present sufficient admissible evidence to support a

prima facie case under 42 U.S.C. § 1983 for violation of her First Amendment rights. First,

Svoboda contends that because Wade did in fact report his misconduct Wade cannot show that

her speech was chilled as a matter of law. Second, Svoboda contends that because the record

contains no evidence that he ever intimidated or retaliated against Wade after she made her

report, she cannot show retaliatory conduct by Svoboda. According to Svoboda, any request by

him that she not report his misconduct motivated by his own desire for self-preservation and thus

was thus not “retaliatory.”

“A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their

official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff’s

First Amendment rights.”1 Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th

Cir. 2016). To prevail on such a claim, “the plaintiff must show that (1) she 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 or 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.” Id. (cleaned up); see also Index

Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020).

Svoboda’s argument that Wade’s reporting of Svoboda’s misconduct proves that her

speech was not chilled fails because Svoboda mischaracterizes the applicable test under a First

Amendment retaliation claim. As stated, the Ninth Circuit uses an objective “person of ordinary

firmness” test to determine whether a defendant’s conduct was chilling. Ariz. Students’ Ass’n,

824 F.3d at 867; see also Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). Under this

objective standard, it does not matter if an individual plaintiff ultimately manages to engage in

further protected activity notwithstanding the chilling of that person’s speech. Capp v. Cnty of

San Diego, 940 F.3d 1046, 1054–55 (9th Cir. 2019); see also Kando v. City of Long Beach, 2023

WL 3092304, *1 (9th Cir. Apr. 26, 2023) (unpublished) (“It makes no difference that [the

plaintiff] pressed forward and filed a complaint anyway.”). Wade’s claim of chilled speech, thus,

does not fail merely because she reported Svoboda’s misconduct. Telling Wade that she would

“get in trouble” for participating in Svoboda’s misconduct, ECF 73-1 at 76:11-17, and, as Wade

1 The Court does not address any issue of qualified immunity because Svoboda did not

make that argument in his motion for summary judgment, ECF 65.

believed, that her child could be taken away from her, id. 78:4-8, are threats that could chill a

person of ordinary firmness because they involve “severe consequences” affecting one’s life. See

Capp, 940 F.3d at 1055 (“The threat of losing custody of one’s children is a severe consequence

that would chill the average person from voicing criticism of official conduct. Accordingly,

notwithstanding the fact that Capp himself was not chilled by Firth's conduct, we conclude that

the alleged retaliation would objectively have had a chilling effect.”). Thus, Wade presents a

genuine issue of material fact regarding whether Svoboda’s alleged statements and conduct had

the potential to chill a person of ordinary firmness.2

Svoboda also argues that Wade’s characterization of the relevant events shows that

Svoboda did not engage in any intimidation or retaliation against Wade after she made her report

on May 7, 2023. Thus, Svoboda contends, Wade cannot show retaliatory conduct after her

constitutionally protected act of reporting Svoboda’s misconduct. Again, Svoboda

mischaracterizes Wade’s claim. In response to Svoboda’s motion, Wade states that the alleged

retaliation consists of a series of acts by Svoboda, “all imposed because Plaintiff attempted to

report his misconduct.” ECF 72 at 39 (emphasis added). Wade frames the “constitutionally

protected activity” that sparked Svoboda’s alleged retaliation not as her report of Svoboda’s

conduct to his employer in May of 2023, but as her threats to report his misconduct throughout

their relationship, dating back to the first on-duty interaction on April 15, 2019. Id. at 35.

2 “Whether a person of ordinary firmness would be chilled by [the defendant’s] action

from engaging in future protected activity is a question of fact.” See Richardson v. City of

Gladstone, 2015 WL 569914, at *13 (D. Or. Feb. 10, 2015) (explaining that defendants’

argument that their alleged conduct would not chill a person of ordinary firmness from

exercising his free speech rights involved a question of fact which could not be resolved on

motion to dismiss). “Because reasonable jurors could conclude that [the defendant’s] actions …

could chill the exercise of protected expression, [the court] erred in reaching a contrary

conclusion on summary judgment.” Knotts v. Oregon Trail Sch. Dist. 46, 2017 WL 4861521,

at *7 (D. Or. Oct. 26, 2017).

The Ninth Circuit has concluded that there is “no legal distinction to be made between

the filing of a charge which is clearly protected and threatening to file a charge.” Entler v.

Gregoire, 872 F.3d 1031, 1042 (9th Cir. 2017) (quoting Gifford v. Atchison, Topeka and Santa

Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982)); see also Martin v. Her, 2020 WL 4922490,

at *12 (E.D. Cal. Aug. 21, 2020), report and recommendation adopted, 2021 WL 1210371 (E.D.

Cal. Mar. 31, 2021) (“Accordingly, the undersigned finds that defendant is not entitled to

summary judgment on the grounds that plaintiff did not drop his grievance because defendant's

alleged threats would chill a person of ordinary firmness from future protected activities.”).

Wade contends that years’ worth of retaliatory conduct by Svoboda came based on both her

initial and later threats to report Svoboda to his employer. Svoboda’s focus on potentially

retaliatory conduct that occurred after Plaintiff’s report on May 7, 2023, thus, is too narrow.

Correctly framed, Wade’s allegations give rise to two disputes of material fact. First, the

parties dispute whether Svoboda told Wade, beginning in April 2019, that Wade could get in

trouble for having sex with him while he was on duty. Wade testified in her deposition that after

first having sex with Svoboda in April 2019, “[h]e told me that it was something that we could

both get in trouble for and he could lose his job and I was not allowed to tell anybody that this

happened. He told me that I needed to delete the messages and never speak about this again.”

ECF 73-1 at 76:11-17. Later in her deposition, Wade reiterated what occurred: “I would tell him

that I was going to report him because I didn’t feel that was okay and I felt very uncomfortable,

and that’s when he told me no, not to, because he would lose his job and we would both get in

trouble if anybody ever found out what we had done.” Id. at 111: 7-12.

In his motion for summary judgment, Svoboda disputes Wade’s characterization of what

occurred. ECF 65 at 8; ECF 73-6 at 128:6-8, 16-19. What Svoboda told Wade about who could

get in trouble for their conduct is material to a fact-finder’s view of the retaliatory nature and

chilling effect of Svoboda’s conduct. Thus, a genuine dispute of material fact exists regarding

Wade’s First Amendment retaliation claim.

Second, the parties dispute whether Svoboda tracked Wade’s location. Wade describes

four separate instances in which, without telling Svoboda where she was or where she was going,

Svoboda contacted Wade and stated that he knew her precise location and questioned why she

was at that location. Further, on at least one of these occasions, Svoboda told Wade that she was

“'too close to the police station.” ECF 73-7 at 2 (Interrogatory 17). Also, on at least one of these

times, Svoboda was on duty when he contacted Wade about her location. These instances

occurred while Wade was in three separate locations in northwest Oregon. There was no

discernible pattern to Wade’s travel that Svoboda might have used to determine her location.

Thus, Wade contends that circumstantial evidence shows that Svoboda must have used

“resources at the police department” to aid his tracking.3 Id.

Svoboda denies using police tracking equipment. ECF 73-6 at 252:15-22; ECF 72 at 43.

This, however, is a genuine dispute of material fact to be resolved by the fact-finder at trial.

3 Wade’s circumstantial evidence is enough to survive summary judgment. “A plaintiff

may establish motive using direct or circumstantial evidence.” Arizona Students’ Ass'n, 824 F.3d

at 870 (citing Ulrich v. City & Cnty of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002)). “Intent

to inhibit speech, which is an element of the claim, can be demonstrated either through direct or

circumstantial evidence.” Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300-01

(9th Cir. 1999) (cleaned up) (citing Mendocino Env't Ctr. v. Mendocino Cnty., 14 F.3d 457, 464

(9th Cir. 1994); see also Magana v. Commonwealth of N. Mariana Islands, 107 F.3d 1436, 1448

(9th Cir.1997) (circumstantial evidence of intent is sufficient to survive summary judgment

motion)). “Where a plaintiff alleges discrete acts of police intimidation directed solely at

silencing her, a civil rights claim will lie.” Mendocino Env’t Ctr., 14 F.3d at 464 (cleaned up).

2. Fourth Amendment Search and Seizure

Svoboda also moves for summary judgment against Wade’s claim under the Fourth

Amendment. He argues that no evidence shows that he tracked Wade or used police resources to

track her. As discussed above, however, Wade has raised a genuine issue on this question.

“The Fourth Amendment provides in relevant part that ‘the right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated.’” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting U.S. CONST.

amend. IV). “The touchstone of Fourth Amendment analysis is whether a person has a

‘constitutionally protected reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S.

207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring)). “Katz posits a two-part inquiry: first, has the individual manifested a subjective

expectation of privacy in the object of the challenged search? Second, is society willing to

recognize that expectation as reasonable?” Id. (citing Smith v. Maryland, 442 U.S. 735, 740

(1979)). The Supreme Court applied these Fourth Amendment principles to the use of location

tracking devices in United States v. Jones, holding that “the Government's installation of a GPS

device on a target's vehicle, and its use of that device to monitor the vehicle's movements,

constitutes a ‘search,’” and therefore requires a warrant. 565 U.S. 400, 404 (2012). As noted,

Wade presents sufficient evidence, albeit circumstantial, to create a genuine dispute of material

fact regarding the elements of a Fourth Amendment violation. Anderson, 477 U.S. at 252, 255.

Further, in Kyllo v. United States, the Supreme Court held that an unreasonable search

occurs when the government “uses a device that is not in general public use” to obtain

information “that would previously have been unknowable without physical intrusion.” 533 U.S.

27, 40 (2001). On summary judgment, “the moving party must either produce evidence negating

an essential element of the nonmoving party’s claim or defense or show that the nonmoving

party does not have enough evidence of an essential element to carry its ultimate burden of

persuasion at trial.” Nissan Fire & Marine Ins., 210 F.3d at 1102. Thus, to defeat Wade’s Fourth

Amendment claim by summary judgment, Svoboda must show that no reasonable inference

could be drawn in Wade’s favor.

Here, the absence of any explanation as to how and why Svoboda was aware of Wade’s

location on the several instances that she describes allows for reasonable inferences to be drawn

in favor of her allegation that Svoboda used police resources to track her. See Diaz v. Eagle

Produce Ltd. P'ship, 521 F.3d 1201, 1212 (9th Cir. 2008) (finding summary judgement for

defendant improper because “no other explanation was given with respect to” the plaintiff’s

version of events); see also Perez v. U.S. Postal Serv., 2014 WL 3925317, at *7 (W.D. Wash.

Aug. 12, 2014) (“As Defendant has failed to offer an alternative explanation for these actions,

Defendant has failed to carry its burden to show that summary judgment is warranted on these

grounds.”). Because Svoboda offers no explanation for how he knew where Wade was on the

several instances she describes, summary judgment in favor of Svoboda on this point is

unwarranted.

Svoboda also argues that the official investigation conducted by the Oregon City Police

Department yielded no findings that any sort of technology had been used to track Wade’s

location and, therefore, there is a lack of sufficient evidence to support her claim under the

Fourth Amendment. ECF 65 at 15; ECF 82 ¶ 13. The Oregon City Police Department’s findings

may support Svoboda's defense at trial, but they do not alter the Court’s responsibility at this

stage to view the evidence in the light most favorable to the non-moving party and to draw all

reasonable inferences in that party’s favor. See Clicks Billiards, 251 F.3d at 1257.

3. Substantive Due Process

Svoboda also moves for summary judgment against Wade’s Substantive Due Process

claim, arguing that she was not exposed to any actual or particularized danger. Both parties cite

the Ninth Circuit state-created danger standard expressed in Martinez v. City of Clovis, 943 F.3d

1260, 1271 (“the state may be constitutionally required to protect a plaintiff that it ‘affirmatively

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

(quoting Patel v. Kent Sch. Dist., 648 F.3d 965, 971-72 (9th Cir. 2011))).

Martinez is a state-created danger case that, quoting Henry A. v. Willden, 678 F.3d 991,

1002 (9th Cir. 2012), states that “by its very nature, the doctrine only applies in situations in

which the plaintiff was directly harmed by a third party—a danger that, in every case, could be

said to have ‘already existed.’” Martinez, 943 F.3d at 1271 (quoting 678 F.3d at 1002). Svoboda

argues that Wade cannot point to any interaction between the parties that would be sufficient to

create a question of fact regarding any danger from a third party to which Svoboda exposed

Wade. ECF 65 at 16. The Court agrees with Svoboda and grants summary judgment against

Wade on this claim.

4. Intentional Infliction of Emotional Distress

Svoboda also asks the Court to find that Wade’s claim for intentional infliction of

emotional distress (“IIED”) fails as a matter of law, for two alternative reasons. First, Svoboda

argues that no actionable events occurred within the timeframe provided by the Oregon Tort

Claims Act (“OTCA”). Second, and in the alternative, Svoboda argues that Wade cannot point to

any extreme or outrageous conduct that could warrant the survival of her IIED claim.

a. OTCA Notice4

Under the OTCA, an “action arising from any act or omission of a public body or an

officer” may only be brought if the claimant gives proper notice to the officer’s public employer

“within 180 days after the alleged loss or injury.” Or. Rev. Stat. (“ORS”) § 30.275 (1)-(2). Wade

filed her notice on September 29, 2023, with the intent to pursue IIED action against Svoboda for

his conduct beginning in April of 2019. ECF 72 at 35, 50. Subtracting 180 days from the

September 29 date of notice, the OTCA requires any alleged injury to have taken place on or

after April 2, 2023. Wade asserts that because Svoboda’s conduct over a four-year period of their

relationship combines to form a “continuing tort” under Oregon law, all of Svoboda’s alleged

conduct during this period is properly alleged under the OTCA. Id. at 48-50. Even though only

some of the alleged tortious conduct took place on or after April 2, 2023, this conduct acts as an

anchor, Wade argues, for the rest of Svoboda’s conduct that contributed to a post-April 2, 2023

emotional distress injury. Id. Svoboda disagrees, arguing that the alleged conduct does not

constitute a continuing-tort under Oregon law. ECF 65 at 17-18. The Court agrees with Svoboda.

“[A]t the heart of the continuing tort idea is the concept that recovery is for the

cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Davis v.

Bostick, 282 Or. 667, 671-72 (1978); see also Barrington ex rel. Barrington v. Sandberg, 164 Or.

App. 292, 296-98 (1999). In Davis, the plaintiff brought an IIED claim against her former

husband for 10 incidents of physical and mental abuse under a continuing tort theory. Four of the

4 Svoboda argues that Wade’s tort-claim notice date bars some of his conduct from being

considered by the Court under Wade’s IIED claim. ECF 72 at 48. Wade, in turn, argues that her

“tort-claim notice was timely filed because Officer Svoboda’s conduct constituted a continuing

tort.” ECF 72 at 48. Wade also argues that “when a defendant engages in a continuing course of

intentional, outrageous, distress-inducing conduct, the OTCA notice period does not begin to run

until the conduct ends.” Id. Svoboda and Wade agree that the OTCA notice period applies to her

IIED claim against Svoboda.

ten incidents were outside the statutory period. The Oregon Supreme Court found each alleged

incident to be “separately actionable” because each caused “harm” and did not reach “the level

of actionability only at the end of the series” of misconduct or only due to the cumulative effect

of the wrongful behavior. Davis, 282 Or. at 672; see also Curzi v. Oregon State Lottery, 286 Or.

App. 254, 266, (2017). Conversely, in Holdner v. Columbia County, the court found that

“negligent upkeep” of the defendant’s property “and the resulting nuisance or trespass to

plaintiff’s land” constituted a continuing tort because the conduct could not be reasonably

divided into discrete, individually actionable events. 51 Or. App. 605, 612-13 (1981).

Here, Wade’s continuing-tort theory aligns more closely with that of Davis than that of

Holdner. As in Davis, the evidentiary record describes an on-again-off-again sexual relationship

that contained discrete events of sexual encounters and allegedly tortious conduct. ECF 73-1

at 105:17-107:7. Even with the cyclicality of the tortious conduct that Wade alleges, id.

at 107:3-4, the alleged harm did not reach a requisite “level of actionability only at the end of the

series”—or, more precisely, on or after April 2, 2023. Davis, 282 Or. at 672. At the very least,

even if a continuing tort occurred during the parties’ relationship, the events that allegedly

occurred during the 180-day statutory period do not form any part of a continuing tort because

the record describes discrete events—e.g., conversations and sexual encounters—that are

separated by attenuated periods of no contact. See, e.g., ECF 73-1 at 105:17-107:7. Because the

record shows distinct acts with distinct injuries, it is not true that the injuries caused by these

events only reached a level of actionability after the beginning of the relevant OTCA notice date.

As a result, only the alleged conduct that resulted in injury on or after April 2, 2023, can be

considered under Wade’s claim. See Santos v. NaphCare, Inc., 2022 WL 828140, at *4 (D. Or.

Feb. 4, 2022), report and recommendation adopted, 2022 WL 827194 (D. Or. Mar. 18, 2022)

(“Thus, to the extent plaintiff alleges a separate cause of action for each of these incidents, those

that fall outside the 180-day notice period are barred.”)

b. Extreme and Outrageous Conduct

Looking only at this temporally limited scope of alleged conduct, the Court does not find

there to be a question for the jury on Wade’s IIED claim. To prevail on an IIED claim under

Oregon law, “a plaintiff must establish: (1) the defendant intended to inflict severe emotional

distress, (2) the acts were the cause of plaintiff's severe emotional distress, and (3) the acts were

sufficiently grievous to constitute a transgression of the bounds of socially tolerable conduct.”

Dawson v. Entek Int'l, 630 F.3d 928, 941 (9th Cir. 2011) (citing Delaney v. Clifton, 180 Or. App.

119, 129-30 (2002)). A court is empowered, on a motion for summary judgment, to “play[] a

gatekeeper role in evaluating the viability of an IIED claim by assessing the allegedly tortious

conduct to determine whether it goes beyond the farthest reaches of socially tolerable behavior

and creates a jury question on liability.” House v. Hicks, 218 Or. App. 348, 358 (2008); Pakos v.

Clark, 253 Or. 113, 132 (1969). Svoboda’s alleged conduct—which includes the over-the-phone

interaction with Wade after her report to Svoboda’s employer and the deletion of evidence after

Svoboda became aware of the internal investigation—does not rise to the level of extreme and

outrageous conduct that the law requires. This conduct does not go “beyond the farthest reaches

of socially tolerable behavior,” because “[c]onduct that is merely rude, boorish, tyrannical,

churlish and mean does not satisfy that standard, nor do insults, harsh or intimidating words, or

rude behavior ordinarily result in liability even when intended to cause distress.” Watte v. Edgar

Maeyens, Jr., M.D., P.C., 112 Or. App. 234, 239 (1992) (finding no IIED claim where employer

threw a tantrum, screamed and yelled at his employees, accused them of being liars and

saboteurs, then fired them all) (quotation marks and citations omitted). The conduct here may

have been distressing, intimidating, and undoubtedly frustrating, but not so socially intolerable to

suggest liability. See Richardson v. Nw. Christian Univ., 242 F. Supp. 3d 1132, 1154 (D. Or.

2017) (granting summary judgment to defendant on plaintiff’s IIED claim, finding harassment

through letters and phone messages and attempting to use the threat of job loss to coerce plaintiff

into marrying or completely dissociating from the father of her unborn child not sufficiently

extreme and outrageous); see also Relloque v. City of W. Linn, 2025 WL 919443, at *11 (D. Or.

Mar. 26, 2025). Thus, the Court finds no dispute of material fact and Svoboda is entitled to

summary judgment against Wade’s IIED claim.

5. Intentional Spoliation of Evidence

Finally, Svoboda moves for summary judgment against Wade’s stand-alone spoliation

claim, arguing that spoliation is not an independent cause of action under state or federal law.

One court in the District of Oregon has allowed an independent spoliation claim to go forward.

See McGuffin v. Dannels, 2021 WL 4453106 (D. Or. Jul. 27, 2021), report and recommendation

adopted, 2021 WL 4449975 (D. Or. Sept. 28, 2021). There, “the alleged spoliation [arose] from

Defendants' destruction of evidence including potentially exculpatory videotapes” for which the

Plaintiff also brought a § 1983 claim for destruction of evidence. Id. at *13. Those facts,

however, are unique and not comparable to the facts of this case.

Indeed, in a subsequent opinion by the same court that adopted the report in McGuffin,

the district court rejected a stand-alone spoliation claim. Halsey v. Airbus Helicopters S.A.S.,

2025 WL 318744 (D. Or. Jan. 28, 2025). The court explained that “McGuffin—the only Oregon

case allowing a spoliation claim to proceed under Oregon law—is clearly distinguishable …

because McGuffin’s ‘spoliation claim, unlike the claims in Classen and Melo, arises from the

same nucleus of facts as the other underlying claims against Defendants.’” Id. at *7 n.7 (quoting

McGuffin, 2021 WL 4453106, at *13, and citing Classen v. Arete NW, LLC, 254 Or. App. 216

(2012) (holding that spoliation claim was premature pending resolution of the underlying action)

and Melo v. Oregon, 2016 WL 297430 (D. Or. Jan. 20, 2016) (holding the same)). Another court

in this district, after examining the case law, also held that “because plaintiff has not yet suffered

any diminution in the value of his underlying claims, defendant’s motion is granted as to

plaintiff’s spoliation claim.” Jones v. Target Corp., 2024 WL 1747326, at *6 (D. Or. Apr. 1,

2024), report and recommendation adopted, 2024 WL 1741117 (D. Or. Apr. 23, 2024); see also

Bliss v. Adewusi, 2023 WL 6961979, at *14 (D. Or. Oct. 20, 2023). This principle is applicable

here. Wade has not suffered any diminution in the value of her underlying claims. Additionally,

no finding has yet been made on the grounds of sufficiency of evidence. Thus, Wade’s fails to

present a valid stand-alone claim of spoliation of evidence.

B. The City Defendants’ Motion for Summary Judgment

Against the City Defendants, Wade asserts state law claims for negligent supervision,

negligent training, and intentional spoliation of evidence and a federal claim under 42 U.S.C.

§ 1983 and Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978),

alleging that the City Defendants maintained an unconstitutional custom, practice, or policy that

resulted in the violation of Wade’s constitutional rights. For the reasons explained below, the

Court grants in full the motion for summary judgment filed by the City Defendants.

1. Intentional Spoliation of Evidence

The City Defendants argue that Wade’s intentional spoliation claim cannot be brought as

a stand-alone cause of action. For the reasons explained above, Wade fails to present a stand-

alone claim for intentional spoliation of evidence. She has not yet suffered any diminution in the

value of her underlying claims. No finding has been made on the grounds of sufficiency of

evidence. Thus, the City Defendants are entitled to summary judgment. See Jones, 2024 WL

1747326, at *6; Bliss, 2023 WL 6961979, at *14; Halsey, 2025 WL 318744, at *7 n.7; Classen,

254 Or. App. at 222; Melo, 2016 WL 297430, at *2.

2. Negligent Training and Supervision

The City Defendants also move for summary judgment against Wade’s state law

negligence claims, arguing first that her claims are almost entirely barred by the OTCA notice

requirement, and second that the non-time-barred conduct that remains took place outside of the

course and scope of Svoboda’s employment. The Court agrees.

Under Oregon law, to sustain a claim for negligent supervision a plaintiff must establish

that the employer had knowledge of an employee’s dangerous propensities. See Whelan v.

Albertson's, Inc., 129 Or. App. 501, 507 (1994) (finding liability where the employer knew or

should have known of the necessity of controlling the employee); see also Carr v. US W. Direct

Co., 98 Or. App. 30, 37 (1989) (finding that the employer could not have known that the

employee was dangerous). The key issue is whether, based on what the employer knew or

reasonably should have known about the employee, the employer could reasonably foresee that

the employee, if inadequately supervised, would engage in the kind of conduct that ultimately

harmed the plaintiff. See M.N.O. v. Magana, 2006 WL 559214, at *20 (D. Or. Mar. 6, 2006)

(citing Washa v. Or. Dep't of Corrections, 159 Or. App. 207, 225 (1999), aff’d, 335 Or. 403,

(2003)). Importantly, for a claim alleging negligent supervision or negligent training, the harm or

injury relevant to a notice requirement calculation is the harm that the employee inflicts upon the

plaintiff. See Washa, 159 Or. App. at 225 (1999). As a result, determining what conduct is time-

barred due to the OTCA 180-day notice requirement for Wade’s state law negligence claims

against the City Defendants involves the same analysis the Court undertook above regarding

Wade’s IIED claim against Svoboda. In short, Svoboda’s conduct does not qualify as a

continuing tort under Oregon law, and thus, only the alleged conduct that resulted in injury to

Wade on or after April 2, 2023, may be considered under her state law tort claims. See Davis,

282 Or. at 671-72; Barrington, 164 Or. App. at 296-98; Santos, 2022 WL 828140, at *4.

Considering only the non-time-barred conduct, Wade provides no evidence to raise a

genuine issue whether Svoboda was acting within the course and scope of his employment with

City Defendants. Under an OTCA claim, “every public body is subject to civil action for its torts

and those of its officers, employees and agents acting within the scope of their employment or

duties.” ORS § 30.265(1). For a negligent supervision and training claim brought against a

public entity but premised on the injury-causing conduct of an individual public employee, as is

the case here, it is “necessary to look to the acts that led to the injury to determine if those acts

were within the [employee’s] scope of employment.” Fearing v. Bucher, 328 Or. 367, 373 n.4,

374 (1999) (applying respondeat superior doctrine to negligent supervision and training claims

and finding that acts that were within the defendant’s scope of employment resulted in the acts

that caused injury to plaintiff) (emphasis in original).5 To determine when an employee acts in

the course and scope of their employment, Oregon courts look to three factors: (1) whether the

act occurred substantially within the time and place limits authorized by the employment; (2)

whether the employee was motivated, at least partially, by a purpose to serve the employer; and

(3) whether the act is of a kind which the employee was hired to perform. Chesterman v.

Barmon, 305 Or. 439, 442 (1988).6

5 “Whether an employee has acted within the scope of employment at any given time

generally is a question for the trier of fact, except in cases where only one reasonable conclusion

may be drawn from the facts pled.” Fearing v. Bucher, 328 Or. 367, 374 (1999) (citing Stanfield

v. Laccoarce, 284 Or. 651, 655 (1978)).

6 Wade argues that this Oregon standard should be adjusted given the position of trust in

the community that a police officer holds. In support of this point, Wade cites to case law from

outside of the relevant jurisdictions. ECF 77 at 44. Without evidence that Oregon courts have

adopted this adjusted view, however, the Court declines to adopt Wade’s suggestion.

The City Defendants argue that none of Svoboda’s relevant conduct was motivated by a

purpose to serve the City Defendants and that none of it was of the kind that Svoboda was hired

to perform. The record shows the following:

• Svoboda and Wade texted about their final sexual encounter on April 9, 2023 in

Svoboda’s home, ECF 73-1 at 150:4-152:20; ECF 77 at 42;

• Svoboda asked and, indeed, pressured Wade by text message to retract her report

dated May 7, 2023, to the city manager (including sending videos to Wade of his

son crying because the report would cause Svoboda to lose his job), ECF 73-1

at 114:4-115:6;

• Svoboda blocked Wade’s future communications and deleted their past

communications from his phone, id.; ECF 73-6 at 207:7-13; and

• Svoboda contacted Wade’s friend to ask if Wade was continuing to report

information to the City Defendants, and if so, what she was reporting. ECF 73-6

at 113:22-115:7.

Wade identifies no evidence that these actions by Svoboda occurred while he was on

duty, were motivated by an employment duty, or were at all related to his work as a police

officer. No evidence suggests that these actions—those that may have contributed to a

post-April 2, 2023 injury—were taken within the course and scope of Svoboda’s employment

with the City Defendants. Accordingly, the City Defendants are entitled to summary judgment

against Wade’s state tort claims.

3. Wade’s Monell Claim

The City Defendants argue that they are entitled to summary judgment against Wade’s

Monell claim because it is time barred by the applicable statute of limitations for § 1983 claims

brought against Oregon public entities. In the alternative, the City Defendants argue that Wade’s

Monell claim fails because she cannot show that the City Defendants had an unconstitutional

policy, practice, or custom. The Court addresses both arguments.7

First, the City Defendants argue that the applicable statute of limitations bars some of the

allegations that Wade contends in support of her Monell claim. Wade alleges that Svoboda’s

“continuing conduct” connects the underlying constitutional violations to the statutory period,

thereby delaying the accrual of her claims. The City Defendants argue that because the injuries

that Wade allegedly suffered arose from a series of discrete acts, only those injuries that occurred

within two years of the filing of this action may be considered for her Monell claim. To the

extent that Wade is arguing a “continuing violation” theory to rebut the City Defendant’s

affirmative defense of the statute of limitations, the Court agrees with City Defendants.

For a Monell claim, the statute of limitations begins to accrue when a plaintiff knows or

has reason to know of the underlying constitutional injury. See TwoRivers v. Lewis, 174 F.3d

987, 991-2 (9th Cir. 1999) (citing Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996)). The

applicable statute of limitations for § 1983 claims brought against an Oregon public entity is two

years. See Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 579 (9th Cir. 2012) (applying

Oregon’s two-year statute of limitations for personal injury actions–outlined in ORS § 12.110–to

§ 1983 claims). Wade filed this action on April 9, 2024, which means that injuries leading to

alleged Monell liability must have occurred on or after April 9, 2022. Although Wade contends

7 The City Defendants also argue that Wade’s Monell claim fails because Svoboda was

not acting within the course and scope of his employment when he took the actions that Wade

alleges led to her injuries. ECF 67 at 20-21. The Court rejects this argument because it

mischaracterizes the difference between a Monell claim and a tort claim predicated on a theory

of respondeat superior. Monell, 436 U.S. 658, 691 (“In particular, we conclude that a

municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a

municipality cannot be held liable under § 1983 on a respondeat superior theory.”).

that Svoboda’s “continuing course of outrageous conduct” means that only some of that conduct

must fall within the statutory period, the Ninth Circuit no longer recognizes the validity of such a

theory for § 1983 claims. See Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 747-48 (9th Cir. 2019)

(explaining that the Ninth Circuit has “consistently refused to apply the [continuing violations

doctrine] to rescue individualized claims that are otherwise time-barred”); see also Carpinteria

Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003) (rejecting the

application of the continuing violations doctrine to § 1983 claims). Instead, the Ninth Circuit

held in Bird that “‘discrete ... acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges’ because ‘[e]ach discrete ... act starts a new clock for filing

charges alleging that act.’” 935 F.3d at 747 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002)). When a series of discrete acts is cited as evidence of a violation of one’s

constitutional rights, only those acts that occurred within the statutory period survive. See, e.g.,

Evans v. Nelson, 2022 WL 20335877, at *10 (D. Or., 2022) (“Claim 11 is barred as to these

Defendants. However, Claim 11 survives as to allegations based on events occurring on or after

August 5, 2017.”).

Here, Svoboda’s alleged violations of Wade’s constitutional rights stem from discrete

events and actions. The allegations of threats or instructions that Svoboda directed at Wade and

his alleged tracking of her location, for example, come from discrete interactions between

Svoboda and Wade throughout their on-again-off-again relationship. As a result, only those

injuries suffered by Wade caused by Svoboda’s alleged violation of constitutional rights can

provide a basis for her Monell claim.8

8 A recent Ninth Circuit case held that the statute of limitations for a § 1983 claim may be

tolled when the plaintiff alleges sufficient evidence of a delayed realization of her injuries based

on a power imbalance between the plaintiff and the alleged perpetrator. St. Clair v. County of

Next, the City Defendants argue that no matter how Wade frames her custom, practice, or

policy claim that the City Defendants allegedly adopted, the evidence in the record cannot

support a finding of deliberate indifference by the City Defendants. To impose municipal

liability under § 1983 for a violation of constitutional rights based on a policy, a plaintiff must

show: (1) that the plaintiff possessed a constitutional right of which she was deprived; (2) that

the municipality had a policy; (3) that the policy amounted to deliberate indifference to the

plaintiff’s constitutional rights; and (4) that the policy was the moving force behind the

constitutional violation. Plumeau v. Sch. Dist. #40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.

1997). Wade argues that the City Defendants failed to prevent foreseeable constitutional harm by

failing to properly train and discipline Svoboda. These omissions by the City Defendants,

according to Wade, amount to a “failure to investigate and discipline employees in the face of

widespread constitutional violations,” demonstrating a deliberate indifference to a plaintiff’s

constitutional rights. ECF 77 at 52; Hunter v. County of Sacramento, 652 F.3d 1225, 1234 n.8

(9th Cir. 2011); Rodriguez v. County of Los Angeles, 891 F.3d 776, 803 (9th Cir. 2018)

Okanogan, 154 F.4th 1154, 1159-60 (9th Cir. 2025). In that case, the court held that, at least for

purposes of responding to a motion to dismiss, the plaintiff sufficiently alleged that she “did not

understand the nature of the harm until long after the sexual encounters” “due to her age,

addiction, and the coercion.” Id. The court explained that even if the plaintiff was aware of the

power imbalance from the very beginning, that awareness is wholly different from the awareness

that “such authority is being wielded inappropriately.” Id. In the pending case, however, even

though Wade’s relationship with Svoboda may have reflected a power imbalance, she does not

sufficiently allege or present facts showing that she was unaware of her constitutional injuries

until a time within the statutory period. In fact, a key premise of Wade’s constitutional claims

against Svoboda is her allegation that Svoboda told her as early as April of 2019 that both

Svoboda and Wade could get in trouble for the conduct that they engaged in. ECF 73-1

at 74:17-76:17. Neither the factual record nor Wade’s allegations support a finding that she “did

not understand the nature of the harm until long after” April 9, 2022. Id. Further, even if tolling

were allowed in this case and all of Svoboda’s conduct toward Wade were considered, the

Court’s analysis of the merits of Wade’s deliberate indifference Monell claim would remain

unchanged.

(recognizing liability through evidence of a “failure to investigate and discipline employees in

the face of widespread constitutional violations”). The City Defendants argue that not only did

Svoboda’s conduct not amount to “widespread constitutional violations,” but even if it did, the

City Defendants properly disciplined Svoboda after they became aware of the full extent of his

misconduct. Thus, argue the City Defendants, the facts viewed in the light most favorable to

Wade do not show a genuine issue for trial on deliberate indifference to constitutional rights.

ECF 67 at 27-28.

The Court agrees that the facts do not show widespread constitutional violations. In Davis

v. City of Ellensburg, the Ninth Circuit affirmed summary judgment entered for the municipal

defendants in that case on a Monell deliberate indifference claim and explained that “[a] plaintiff

cannot prove the existence of a municipal policy or custom based solely on the occurrence of a

single incident of unconstitutional action by a non-policymaking employee.” 869 F.2d 1230,

1233 (9th Cir. 1989). “Municipalities cannot be held liable simply because they employ a

tortfeasor,” the court explained, because “[a] jury finding of liability based solely on a police

officer's isolated misbehavior would unduly threaten a municipality with respondeat superior

liability.” Id. at 1234 (citing Monell, 436 U.S. at 691 and City of Oklahoma City v. Tuttle, 471

U.S. 808, 831 (1985) (Brennan, J., concurring)). Similarly, the Supreme Court held in Connick v.

Thompson that “[a] pattern of similar constitutional violations by untrained employees is

ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” 563

U.S. 51, 62 (2011). The Court explained that “[w]ithout notice that a course of training is

deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional rights.” Id. Here, Svoboda’s

misconduct, while comprised of multiple discrete acts across multiple years, aligns more closely

with the “isolated misbehavior” of the single officer in Davis rather than the “widespread”

constitutional violations that Wade claims the facts show. Even viewing the facts in the light

most favorable to Wade, the conduct alleged does not amount to the widespread constitutional

violations that Monell requires.

Second, even if the facts suggested that constitutional violations were sufficiently

widespread, the response by the City Defendants does not amount to a failure to investigate and

discipline. In Gillette v. Delmore, the Ninth Circuit held that a § 1983 plaintiff failed to

demonstrate a municipal custom or practice because he failed to produce “evidence of repeated

constitutional violations for which the errant municipal officials were not discharged or

reprimanded.” 979 F.2d 1342, 1349 (9th Cir. 1992). The same is true here. The evidence

presented, even when viewed in the light most favorable to Wade, shows that the City

Defendants referred Wade’s May 7, 2023 report to the Oregon City Police Department for an

external criminal investigation of Svoboda’s conduct. That process led to Svoboda’s conviction

for official misconduct in the second degree, his resignation from the Lake Oswego Police

Department, and his surrendering of his police certification credentials. After Wade alerted the

City Defendants to the conduct that gives rise to her alleged constitutional injuries, the City

Defendants initiated the investigation of Svoboda, who was then disciplined. Thus, Wade’s

Monell claim against the City Defendants fails to present a genuine dispute of material fact.9

9 St. Clair v. County of Okanogan also illustrates this point. 154 F.4th 1154 (9th Cir.

2025). The Ninth Circuit reversed a district court’s dismissal of the plaintiff’s Monell claim in

that case because the plaintiff alleged that the county defendant knew not just of the individual

county employee’s repeated misconduct, but also of similar misconduct by three other deputies

and of an audit that identified deficient policies, practices, and complaint tracking that was

“downplayed and … not acted upon.” Id. at 1161. The court concluded that “[t]hese additional

facts provide a basis for a plausible Monell claim” at the motion to dismiss stage. Id. The same

cannot be said for the facts here.

CONCLUSION

The Court GRANTS IN PART and DENIES IN PART Michael Svoboda’s motion for

summary judgment, ECF 65. The Court grants summary judgment to Michael Svoboda on

Count One (alleging intentional infliction of emotional distress), Count Four (alleging intentional

spoliation of evidence), and Count Eight (alleging violation of Substantive Due Process). The

Court denies summary judgment to Michael Svoboda on Count Five (alleging violation of First

Amendment rights) and Count Six (alleging violation of Fourth Amendment rights), The Court

GRANTS full summary judgment to the City of Lake Oswego and George Burke, ECF 67. Thus,

all that remains for trial are Plaintiff’s claims against Michael Svoboda on Claims Five and Six.

Counsel for Plaintiff and Michael Svoboda are directed jointly to contact the Courtroom Deputy

to set a telephone conference for the purpose of scheduling trial.

IT IS SO ORDERED.

DATED this 6th day of May, 2026.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge