Carter

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MALVIN ABEL, an Oregon resident,

Case No. 3:24-cv-02028-IM (lead case)

Plaintiff,

v.

OPINION AND ORDER

CITY OF PORTLAND, an Oregon municipal GRANTING IN PART AND

DENYING IN PART

corporation; MICHAEL CURRIER, individually

DEFENDANTS’ PARTIAL

and in his official capacity; GEORGE MOTION TO DISMISS

ANDERSON, individually and in his official PLAINTIFF CARTER’S

capacity; NICHOLAS MORALES, individually AMENDED COMPLAINT

and in his official capacity; JOSEPH JESSE,

individually and in his official capacity; JESSICA

BIRD, individually and in her official capacity;

DOES 1-6, individually and in their official

capacity;

Defendants.

NICHELLE CARTER, an Oregon resident,

Plaintiff, Case No. 3:25-cv-02446-IM (trailing case)

v.

CITY OF PORTLAND, an Oregon municipal

corporation; MICHAEL CURRIER, individually

and in his official capacity; GEORGE

ANDERSON, individually and in his official

capacity; NICHOLAS MORALES, individually

and in his official capacity; JOSEPH JESSE,

individually and in his official capacity; JESSICA

BIRD, individually and in her official capacity;

CAMILO PENA, individually and in his official

capacity; PATRICK MAWDSLEY, individually

and in his official capacity;

Defendants.

IMMERGUT, District Judge.

Before this Court is Defendants’ Partial Motion to Dismiss Plaintiff Nichelle Carter’s

Amended Complaint (“Motion”), ECF 33.1 Carter filed this lawsuit against the City of Portland

and Portland Police Bureau (“PPB”) officers, alleging that the officers violated her civil rights

when they rammed into a vehicle in which she was a passenger and when they subsequently

concealed what had occurred during the ramming incident. Amended Complaint, ECF 26 ¶ 1.

Carter brings ten claims against Defendants, including federal constitutional excessive force and

unlawful seizure claims under 42 U.S.C. § 1983, as well as state law tort claims.2 Id. ¶¶ 43–126.

Defendants3 now move to dismiss several of Carter’s claims for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Motion, ECF 33 at 3. Specifically, Defendants

move to dismiss (1) all seven state law tort claims against the individual Defendants; (2) the

intentional infliction of emotional distress and negligent infliction of emotional distress claims

against Joseph Jesse and Jessica Bird; (3) the municipal liability claim against the City of

1 Citations to docket entries are to the docket in Carter v. City of Portland et al., 25-cv-02446.

2 Carter’s ten claims include the following federal constitutional claims (Claims 1–3) and state

law tort claims (Claims 4–10): (1) an excessive force claim against Defendants Michael Currier,

George Anderson, and Nicholas Morales, Amended Complaint, ECF 26 ¶¶ 43–49; (2) an

unlawful seizure claim against Currier, Anderson, Morales, Camilo Pena, and Patrick Mawdsley,

id. ¶¶ 50–59; (3) a municipal liability claim against the City of Portland, id. ¶¶ 60–66; (4) an

assault claim against the City of Portland, Currier, Anderson, Morales, Pena, and Mawdsley, id.

¶¶ 67–73; (5) a battery claim against the City of Portland, Currier, Anderson, and Morales, id.

¶¶ 74–79; (6) an intentional infliction of emotional distress claim against all Defendants, id.

¶¶ 80–91; (7) a negligent supervision claim against the City of Portland and Morales, id. ¶¶ 92–

98; (8) a negligent infliction of emotional distress claim against all Defendants, id. ¶¶ 99–111;

(9) a negligence claim against the City of Portland, Currier, and Anderson, id. ¶¶ 112–17; (10) a

false arrest claim against Currier, Anderson, Morales, Pena, and Mawdsley, id. ¶¶ 118–26.

3 The moving defendants include all individual defendants, except Michael Currier, who is

separately represented. For simplicity, this Court refers to the moving defendants as Defendants.

Portland under Monell v. Department of Social Services, 436 U.S. 658 (1978); (4) the intentional

infliction of emotional distress claim as to all Defendants; (5) the negligent supervision claim as

to Nicholas Morales; (6) the negligent infliction of emotional distress claim as to all Defendants;

and (7) the negligence claim as to all Defendants. Id. Carter filed a Response in Opposition to

Defendants’ Motion (“Response”), ECF 37, and Defendants filed a Reply in Support of their

Motion (“Reply”), ECF 38. The parties do not request a hearing on the Motion to Dismiss, and

this Court finds that the Motion is suitable for decision without oral argument. L.R. 7-1(d)(1);

see also Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). For the below reasons, this Court

GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss, ECF 33. This Court

grants Defendants’ requests (2) and (3) in full, and request (4) as to only Defendants Jesse and

Bird. This Court otherwise denies Defendants’ remaining requests in their Motion to Dismiss.

FACTUAL BACKGROUND4

On January 1, 2024, at around 1:40 a.m., Plaintiff Carter was a backseat passenger in a

black sedan traveling on Northeast Broadway Street in Portland, Oregon. Amended Complaint,

ECF 26 ¶¶ 16, 20. The sedan was following traffic laws when an unmarked PPB sports utility

vehicle (“SUV”) rammed into the driver’s side of the sedan. Id. ¶ 19. The SUV was driven by

Defendant Currier and did not have emergency lights or sirens on at the time of the collision. Id.

The impact from the collision caused Carter to hit her head against the back passenger window.

Id. ¶ 20. Within a few seconds of this first collision, another police SUV driven by Defendant

Anderson, with Defendant Morales as a passenger, rammed into the back of the black sedan. Id.

¶ 21.

4 These facts are taken from the well-pleaded allegations of Carter’s Amended Complaint, which

at this stage of the litigation, this Court accepts as true. Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010).

After this second collision, approximately six PPB officers, including Currier, Anderson,

and Morales, exited their vehicles, yelling at the sedan’s passengers to put their hands up. Id.

¶ 24. Carter alleges that the officers pointed guns at her and the other individuals in the sedan. Id.

The officers yelled at the driver to exit the vehicle, and after the driver complied, one officer

said, “It’s not them.” Id. ¶ 25. A second officer asked, “Are you sure?”, to which another officer

replied, “Yes, these guys are older.” Id. ¶¶ 26–27. An officer apologized for the damage and

explained that they had received a report of a similar black car that was driving recklessly. Id.

¶ 28. The officer stated that was the reason why they had rammed the black sedan. Id.

The officers made the driver perform a sobriety test, which the driver passed. Id. ¶ 30.

The officers next took the driver’s ID and “ran” his name, which revealed that there was a

warrant for his arrest for not reporting to his probation officer. Id. ¶¶ 30–31. Carter alleges that

one officer yelled, “Saved by the bell.” Id. ¶ 31. The driver asked Currier who would fix the

damage to the black sedan. Id. ¶ 34. Currier said that “the City would pay for all the damages”

and wrote down his name, badge number, and a phone number for PPB’s Risk Management

department. Id. ¶ 35. Currier then asked another passenger in the car, Malvin Abel, the plaintiff

in the lead case, to drive the car since the driver “ha[d] to deal with” the warrant. Id. ¶¶ 33, 36.

According to Carter, Currier’s police report “contradicted the present officers’ statements

of misidentification during the encounter.” Id. ¶ 37. Carter alleges that the report inaccurately

states that officers observed the black sedan “commit numerous traffic violations and drive

erratically before deciding to ‘box him in’ and detain for potential DUI crimes and safety risks.”

Id. The report also does not mention that officers drew their guns and pointed them at the sedan’s

passengers, that they misidentified the vehicle, or that they rammed a moving vehicle. Id. ¶ 38.

In addition, Carter alleges that Defendants Jesse and Bird, both employed in Risk

Management positions with the City of Portland, “unlawfully assisted Defendant Currier in his

efforts to mislead [Carter] and Malvin Abel and to interfere with the investigation into the

incident.” Id. ¶ 41. The Independent Police Review opened a complaint on Carter’s behalf on

January 6, 2025, a little over a year after the ramming incident occurred. Id. On February 12,

2025, the Independent Police Review and Police Review Board concluded their investigation and

made the following findings: (1) Currier used inappropriate force during a vehicle box-in

maneuver; (2) Currier failed to document a use of force incident; (3) Currier conducted a box-in

on the wrong vehicle; and (4) Anderson failed to write a report documenting the box-in. Id. ¶ 42.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

plaintiff’s complaint based on “failure to state a claim upon which relief can be granted.” To

defeat a motion to dismiss under Rule 12(b)(6), a plaintiff 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)). Courts

“accept as true all well-pleaded allegations of material fact[] and construe them in the light most

favorable to the [plaintiff].” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

2010). Courts also “draw all reasonable inferences in favor of the plaintiff” at the motion to

dismiss stage. Doe v. Regents of Univ. of Cal., 23 F.4th 930, 935 (9th Cir. 2022). However,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. In addition, courts need not “accept as true a

legal conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555).

DISCUSSION

As noted above, Defendants move to dismiss various claims in Carter’s Amended

Complaint, ECF 26, either as to only certain Defendants or as to all Defendants. This Court

addresses Defendants’ arguments in the order they are raised in the Motion to Dismiss, ECF 33.

A. Carter Fails to State a Claim Against Defendants Jesse and Bird

Carter’s claims against Jesse and Bird for intentional infliction of emotional distress

(“IIED”) and negligent infliction of emotional distress (“NIED”) (Claims 6 and 8 respectively)

should be dismissed because Carter only provides “threadbare factual and legal allegations

related” to their conduct. Motion, ECF 33 at 7. The only factual allegations against Jesse and

Bird in the Amended Complaint are “mere conclusory statements,” Iqbal, 556 U.S. at 678, that

they “unlawfully assisted Defendant Currier in his efforts to mislead [Carter] and Malvin Abel

and to interfere with the investigation into the incident.” Amended Complaint, ECF 26 ¶ 41.

Such “‘naked assertions’ devoid of ‘further factual enhancement’” are insufficient to state a

claim upon which relief can be granted. Iqbal, 556 U.S. at 678 (brackets omitted) (quoting

Twombly, 550 U.S. at 557).5

5 The parties dispute the significance of a July 8, 2024 letter from the City of Portland to Carter,

“acknowledg[ing] the receipt of [her] complaint” regarding the ramming incident. Complaint

Acknowledgment Letter, Declaration of Elizabeth C. Woodard Ex. 1, ECF 34-1; see Motion,

ECF 33 at 6–7; Response, ECF 37 at 14. Defendants argue that the letter “establish[es] the date

the [Independent Police Review] Investigation for Plaintiff was opened.” Motion, ECF 33 at 6.

Carter argues that “the mere acknowledgement that [the Independent Police Review] received a

complaint does not mean an investigation was actually opened on that date.” Reply, ECF 38 at

14. Reading the letter “in the light most favorable to” Carter, as this Court must do at this stage

of the litigation, Daniels-Hall, 629 F.3d at 998, this Court agrees with Carter’s reading. In any

event, this dispute is immaterial to this Court’s dismissal of the IIED and NIED claims against

Jesse and Bird. Carter’s allegation of delay does not provide “sufficient factual matter, accepted

as true,” to state either IIED or NIED claims against Jesse and Bird. Iqbal, 556 U.S. at 678.

B. Carter Sufficiently Pleads Negligence Claims as Alternative Claims

Defendants next argue that Carter “cannot maintain a negligence claim based on the same

allegations” underlying her intentional tort claims, but Defendants ignore that the Federal Rules

of Civil Procedure explicitly allow alternative pleading. Motion, ECF 33 at 8–9. Under Rule

8(d)(3), “[a] party may state as many separate claims or defenses as it has, regardless of

consistency.” Relatedly, “a plaintiff is generally entitled to plead alternative or multiple theories

of recovery on the basis of the same conduct on the part of the defendant.” MB Fin. Grp., Inc. v.

U.S. Postal Serv., 545 F.3d 814, 819 (9th Cir. 2008) (citing Fed. R. Civ. P. 8(d)(2)). As Carter

explains, she pleads alternative claims in her Amended Complaint, and “[e]ach category of . . .

misconduct could plausibly be determined to be either intentional or negligent by a jury.”

Response to Motion to Dismiss (“Response”), ECF 37 at 10. This Court agrees with Carter that

she provides sufficient allegations to support alternative intentional tort and negligence claims.

And even assuming any deficiency in the pleading of Carter’s negligence claims, Rule 8

dictates that “[i]f a party makes alternative statements, the pleading is sufficient if any one of

them is sufficient.” Fed. R. Civ. P. 8(d)(2). Defendants do not contest that her intentional tort

claims are sufficiently pled. Indeed, Defendants rely on the fact that Carter pleads these claims to

argue for dismissal of her negligence claims. Motion, ECF 33 at 8–9. Thus, Carter’s “pleading is

sufficient” under Rule 8(d)(2), and her negligence and NIED claims should not be dismissed.6

6 For the same reasons, Defendants’ argument that Carter’s negligent supervision claim against

Morales should be dismissed, because it is based on an alleged intentional tort, fails. Motion,

ECF 33 at 9–10; see Response, ECF 37 at 10 (“Plaintiff’s negligent supervision claim is an

alternative claim pleading that Defendant Morales had a duty to supervise Defendant Anderson .

. . .”).

C. Carter Adequately Pleads a Negligent Supervision Claim Against Morales

Defendants also contend that Carter has not adequately pled a negligent supervision claim

against Morales, but this Court finds that Carter’s allegations are sufficient to state a “claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Motion, ECF 33 at 10. To

prevail on a negligence claim under Oregon law, a plaintiff must demonstrate:

(1) that 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 defendant’s conduct was unreasonable in light of the

risk, (4) that the conduct was a cause of plaintiff’s harm, and (5) that

plaintiff was within the class of persons and plaintiff's injury was within

the general type of potential incidents and injuries that made defendant’s

conduct negligent.

Moody v. Or. Cmty. Credit Union, 371 Or. 772, 784 (2023) (quoting Solberg v. Johnson, 306 Or.

484, 490–91 (1988)); see Towner v. Bernardo, 304 Or. App. 397, 418–19 (Ct. App. 2020)

(“Claims against a principal alleging direct liability for the principal’s negligent hiring and

supervision of an agent are well established theories of negligence under the common law.”).

Here, Carter adequately pleads a negligent supervision claim against Morales based on

his negligent supervision of Anderson when Anderson rammed into Carter’s vehicle. Carter

alleges that Morales was a passenger in the police SUV driven by Anderson that rammed into the

black sedan and that Anderson “was a new officer on the job, having received his Basic Police

Certificate just four days” prior to the ramming incident. Amended Complaint, ECF 26 ¶¶ 21–22.

In light of these supporting facts, Carter’s allegations that “Anderson was still an officer in

training under the direction or supervision of Defendant Morales” and that “Morales failed to

adequately supervise Defendant Anderson in a manner that was unreasonable in light of the

risk,” id. ¶¶ 23, 95, are more than “mere conclusory statements,” Iqbal, 556 U.S. at 678. Rather,

Carter provides “sufficient factual matter, accepted as true,” to state a negligent supervision

claim against Morales. Iqbal, 556 U.S. a 678; Amended Complaint, ECF 26 ¶¶ 21–23, 92–98.

D. Carter Fails to Plead a Monell Claim Against the City of Portland

Carter fails to state a Monell claim because she does not plead “a policy, practice, or

custom” that is the “moving force behind a violation of constitutional rights.” Dougherty v. City

of Covina, 654 F.3d 892, 900 (9th Cir. 2011). “In order to establish liability for governmental

entities under Monell, a plaintiff must prove (1) that the plaintiff possessed a constitutional right

of which she was deprived; (2) that the municipality had a policy; (3) that the policy amounts to

deliberate indifference to the plaintiff’s constitutional right; and, (4) that the policy is the moving

force behind the constitutional violation.” Id. (citation modified). “A plaintiff can satisfy

Monell’s policy in one of three ways.” Gordon v. County of Orange, 6 F.4th 961, 973 (9th Cir.

2021). “First, a local government may be held liable when it acts ‘pursuant to an expressly

adopted official policy.’” Id. (quoting Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th

Cir. 2014) (per curiam)). “Second, a public entity may be held liable for a ‘longstanding practice

or custom.’” Id. (quoting Thomas, 763 F.3d at 1170). “Third, a local government may be held

liable under Section 1983 when the individual who committed the constitutional tort was an

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

unconstitutional decision or action and the basis for it.” Id. at 974 (citation modified).

In the Amended Complaint, Carter recites the elements of a Monell claim but does not

allege facts that the City of Portland has a policy under any of the “three ways” available to her.

Id. at 973. First, Carter does not point to an “expressly adopted official policy” of the City of

Portland. Thomas, 763 F.3d at 1170. In fact, Carter does just the opposite, pointing to PPB

policies that Defendants failed to follow during the ramming incident. Amended Complaint, ECF

26 ¶¶ 63(i)–(l). Second, Carter does not plead a “longstanding practice or custom.” Thomas, 763

F.3d at 1170. As Defendants highlight, Carter’s allegations against the City of Portland “are

merely a string of allegations particular to her singular contact with the police.” Motion, ECF 33

at 12; see Amended Complaint, ECF 26 ¶¶ 60–66. This falls far short of establishing that the

City has a practice or custom that is “so ‘persistent and widespread’ that it constitutes a

‘permanent and well settled city policy.’” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)

(quoting Monell, 436 U.S. at 691). Third, Carter does not allege that “an official with final

policy-making authority or such an official ratified a subordinate’s unconstitutional decision or

action and the basis for it.” Gordon, 6 F.4th at 974 (citation modified); see generally Amended

Complaint, ECF 26. Thus, Carter has failed to plead that the City of Portland had a policy,

practice, or custom, and this claim must be dismissed.

E. Carter Adequately Pleads IIED Claims Against Defendants Other than Jesse and Bird

Drawing “all reasonable inferences in favor of” Carter, Doe, 23 F.4th at 935, this Court

concludes that Carter has sufficiently alleged an IIED claim against Defendants based on the

ramming incident.7 An IIED claim under Oregon law requires a plaintiff to demonstrate: “(1) the

defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant’s acts

were the cause of the plaintiff’s severe emotional distress, and (3) the defendant’s acts

constituted an extraordinary transgression of the bounds of socially tolerable conduct.” Babick v.

Or. Arena Corp., 333 Or. 401, 410–11 (2002) (quoting McGanty v. Staudenraus, 321 Or. 532,

543 (1995) (en banc)). To satisfy (1), the plaintiff need not show that the defendant “acted with

the purpose of inflicting severe emotional distress to sustain a claim for [IIED].” Id. at 411

(emphasis in original). Rather, the plaintiff need only show that the defendant “knows that such

distress is certain, or substantially certain, to result from his conduct.” Id. at 412 (quoting

McGanty, 321 Or. at 550).

7 As explained above in Part A, Carter does not sufficiently allege IIED claims against Jesse and

Bird based on her conclusory allegation that they “unlawfully assisted” in efforts “to interfere

with the investigation into the [ramming] incident.” Amended Complaint, ECF 26 ¶ 41.

In this case, there is no dispute over (2), the causation element, and as to the remaining

elements, Carter has adequately pled both (1) and (3). As to (1), Carter clearly alleges that

officers intentionally rammed into her vehicle. See, e.g., Amended Complaint, ECF 26 ¶ 17

(“Officers Anderson, Currier and Morales communicated, over the radio, and agreed to execute a

box-in maneuver on the vehicle in which [Carter] was a passenger.”); see also id. ¶¶ 19–25.

Therefore, the only issue as to (1) is whether Carter has sufficiently alleged that the officers

knew that “severe emotional distress” was “certain, or substantially, certain, to result” from

either the ramming or the subsequent pointing of guns at Carter. Babick, 333 Or. at 411–12

(citation modified). Carter has done so based on her allegations that the officers admitted that

they had misidentified Carter’s vehicle and rammed the wrong vehicle. Amended Complaint,

ECF 26 ¶ 25–28. It is a more than a reasonable inference that given these allegations of

misidentification, the officers knew that “severe emotional distress” was “certain, or

substantially, certain, to result” for the passengers of the misidentified vehicle. Babick, 333 Or. at

411–12 (citation modified). For similar reasons, in light of the misidentification, Carter has

adequately pled that the officers’ “acts constituted an extraordinary transgression of the bounds

of socially tolerable conduct.” Babick, 333 Or. at 411 (quoting McGanty, 321 Or. at 543).8

8 Defendants also move to substitute the City of Portland as the sole defendant for Carter’s state

law tort claims (Claims 4–10) under Or. Rev. Stat. § 30.265(3). Motion, ECF 33 at 3–4. But as

Defendants acknowledge, this statute “conditions substitution on an amount ple[d] that would be

less than or equal to the applicable limitations of damages,” which in this case is $1,660,400.00.

Id. at 3 n.2. But Carter states that she “seeks damages in excess of the statutory cap, so

substitution is not appropriate.” Response, ECF 37 at 14. Defendants offer no response. See

Reply, ECF 38. This Court agrees that because Carter seeks damages in excess of the statutory

cap, dismissal of the individual Defendants as to Carter’s state law tort claims is inappropriate.

CONCLUSION

For the above reasons, Defendants’ Motion to Dismiss Plaintiff Nichelle Carter’s

Amended Complaint, ECF 33, is GRANTED IN PART and DENIED IN PART. This Court

DISMISSES WITHOUT PREJUDICE Carter’s IIED and NIED claims against Defendants

Joseph Jesse and Jessica Bird, as well as Carter’s Monell claim against the City of Portland.

Carter may file an amended complaint within 21 days of the issuance of this Opinion and Order.

IT IS SO ORDERED.

DATED this 26th day of August, 2026.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge