Beck v. City of Portland Oregon et al, No. 3:2010cv00434 - Document 40 (D. Or. 2010)
Court Description: OPINION AND ORDER: Defendant Sheffer's motion to dismiss 21 is granted. The section 1983 claim is dismissed without prejudice. The IIED claims is dismissed with prejudice. Plaintiff is given leave to file an amended complaint as to the section 1983 claim, within ten (10) days of the date of this Opinion and Order. Signed on 11/5/10 by Magistrate Judge Dennis J. Hubel. (see formal 20-page opinion) (kb)
Download PDF
<![CDATA[
Beck v. City of Portland Oregon et al Doc. 40 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 13 14 15 16 17 STEVEN FREDERICK BECK, ) ) Plaintiff, ) ) v. ) ) CITY OF PORTLAND, OREGON, and ) KELLI SHEFFER, individually ) and in her official capacity, ) ) Defendants. ) ) No. CV-10-434-HU OPINION & ORDER 18 19 20 21 Ted M. Brindle Cary Novotny BRINDLE McCASLIN & LEE, P.C. 101 S.W. Main Street, Suite 950 Portland, Oregon 97204 22 Attorneys for Plaintiff 23 David Landrum DEPUTY CITY ATTORNEY OFFICE OF CITY ATTORNEY 1221 S.W. Fourth Avenue, Room 430 Portland, Oregon 97204 24 25 26 Attorney for Defendant City of Portland 27 / / / 28 / / / 1 - OPINION & ORDER Dockets.Justia.com 1 2 Jeff S. Pitzer PITZER LAW 101 S.W. Main Street, Suite 805 Portland, Oregon 97204 3 Attorney for Defendant Kelli Sheffer 4 HUBEL, Magistrate Judge: 5 Plaintiff Steven Beck brings this 42 U.S.C. § 1983 action 6 against the City of Portland and Kelli Sheffer, a City of Portland 7 police officer. Sheffer moves to dismiss the claims against her. 8 All parties have consented to entry of final judgment by a 9 Magistrate Judge in accordance with Federal Rule of Civil Procedure 10 73 and 28 U.S.C. § 636(c)). I grant the motion. 11 BACKGROUND 12 Plaintiff and Sheffer reside in the same neighborhood in 13 Hillsboro. In June 2007, plaintiff "made contact with Lieutenant 14 Kelli Sheffer" while she was off duty, with the intent of "bringing 15 legitimate concerns" to her attention. First Am. Compl. at ¶ 10. 16 Apparently, at some other later date, plaintiff was driving on 17 SE Reedville Creek Drive, in Hillsboro, when he noted Sheffer, out 18 of uniform, walking on the sidewalk. Id. at ¶ 11. Sheffer stepped 19 off the curb, stopped plaintiff's vehicle from proceeding by 20 walking in front of it, and directed plaintiff to pull his vehicle 21 over. Id. Plaintiff stopped his vehicle because he knew that 22 Sheffer was a Portland police officer. Id. 23 During "this exchange," plaintiff heard Sheffer state that she 24 had previously "run" Beck's license plate. Id. at ¶ 12. Sheffer 25 then directed plaintiff not to drive his vehicle through the public 26 street, meaning SE Reedville Creek Drive, near her residence. Id. 27 She also accused plaintiff of following two Hispanic young men and 28 2 - OPINION & ORDER 1 harassing them in an incident that took place in the latter part of 2 2007. 3 Id. at ¶ 13. In July 2008, plaintiff called the City and ultimately spoke 4 with the Independent Police Review (IPR) division on July 8, 2008. 5 Id. at ¶ 14. 6 Baptista, plaintiff requested formal mediation of his dispute with 7 Sheffer, including Sheffer's investigating Beck's license plate, 8 her stop of his vehicle, and her direction for plaintiff to stay 9 out of the neighborhood. After receiving a letter from IPR Director Mary-Beth Id. at ¶ 15. 10 On August 27, 2008, plaintiff received a letter from Dan 11 Malin, the auditor of the law enforcement data system (LEDS) which 12 confirmed 13 license number. 14 Portland Police Bureau provide LEDS with the reason why Sheffer had 15 requested the information. 16 that, for unknown reasons, Id. at ¶ 16. Sheffer ran plaintiff's The letter requested that the Id. Plaintiff further alleges that when Sheffer ran his license 17 plate information, it was not part of any assigned duty. 18 18. 19 Bureau's own policy and procedure materials, specifically Section 20 310.70, make clear that LEDS is not for public disclosure and 21 should not be accessed for personal reasons. 22 Plaintiff 23 information for her own personal reasons, in violation of Oregon 24 Administrative Rules 257-015-0060(1) and 257-010-0025(3). 25 ¶ 19. 26 Id. at ¶ Additionally, according to plaintiff, the Portland Police alleges that Sheffer illegally ran Id. at ¶ 17. his personal Id. at On July 31, 2008, plaintiff's neighbor called him to say that 27 a Hillsboro police officer was in plaintiff's driveway. 28 20. Id. at ¶ The police officer asked the neighbor to confirm that the 3 - OPINION & ORDER 1 residence belonged to plaintiff, which the neighbor did. Id. 2 Plaintiff arrived home to discover a business card on his back 3 door, with a request that he call Officer Scott Hanley. Id. 4 Plaintiff learned from speaking with Hanley on the phone that 5 Sheffer, after learning that plaintiff had filed a complaint and 6 requested mediation regarding plaintiff's disputes with Sheffer, 7 reported 8 situation. 9 facts regarding plaintiff: purported acts of inappropriate conduct 10 by plaintiff, including that a female minor named "Carissa" had 11 expressed that plaintiff made her feel uncomfortable and was 12 stalking her, and a report of another incident where plaintiff 13 allegedly inappropriately approached a minor. 14 had reported to the Hillsboro police that "the situation" with 15 plaintiff had been brought up "several times" in neighborhood 16 association meetings. that plaintiff Id. at ¶ 21. was involved in a possible stalking Sheffer had also reported other alleged Id. Sheffer also Id. 17 Since learning of the foregoing, plaintiff has been extremely 18 emotionally distraught and no longer feels welcome in his own 19 neighborhood. 20 caused him irreparable harm by encouraging his neighbors and their 21 children to shun him as a potential predator in the community. Id. 22 at ¶ 23. 23 that his image in the community has been tarnished since Sheffer 24 began her campaign . . . suggesting that he is a potential 25 predator." 26 Id. at ¶ 22. He fears that Sheffer's actions have He "has had several experiences that lead him to believe Id. Plaintiff has sought the assistance of his physician due to 27 the emotional and psychological 28 Sheffer's actions. Id. at ¶ 24. 4 - OPINION & ORDER harm he suffered because of He has been diagnosed with a 1 shingles-related disorder stemming from the stress. 2 developed asthmatic-type symptoms and conditions for which he is 3 being treated. He has Id. 4 5 Id. STANDARDS On a motion to dismiss, the court must review the sufficiency 6 of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 7 All allegations of material fact are taken as true and construed in 8 the light most favorable to the nonmoving party. 9 Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 10 (9th Cir. 2002). 11 allegations as truthful. 12 American Family However, the court need not accept conclusory (9th Cir. 1992). Holden v Hagopian, 978 F.2d 1115, 1121 13 A motion to dismiss under Rule 12(b)(6) will be granted if 14 plaintiff alleges the "grounds" of his "entitlement to relief" with 15 nothing 16 recitation of the elements of a cause of action[.]" 17 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation 18 omitted). 19 relief above the speculative level, . . . on the assumption that 20 all the allegations in the complaint are true (even if doubtful in 21 fact)[.]" "more than labels and conclusions, and a formulaic Bell Atlantic "Factual allegations must be enough to raise a right to Id. (citations and footnote omitted). 22 To survive a motion to dismiss, the complaint "must contain 23 sufficient factual matter, accepted as true, to state a claim to 24 relief 25 plaintiff pleads factual content that allows the court to draw the 26 reasonable 27 misconduct alleged." 28 (2009) that is plausible inference (internal that its the face[,]" defendant meaning is "when liable for the the Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 quotation 5 - OPINION & ORDER on omitted). Additionally, "only a 1 complaint that states a plausible claim for relief survives a 2 motion to dismiss." 3 "well-pleaded facts" which "permit the court to infer more than the 4 mere possibility of misconduct." Id. at 1950. 5 The complaint must contain Id. DISCUSSION 6 Based on the facts recited above, plaintiff brings three 7 claims: (1) a section 1983 claim against Sheffer; (2) a section 8 1983 claim against the City; and (3) an intentional infliction of 9 emotional distress (IIED) claim. 10 the claims against her. 11 I. Sheffer moves to dismiss both of 12 13 14 15 16 17 Section 1983 Claim Plaintiff captions this claim against Sheffer as a violation of his constitutional right to liberty. He alleges: Defendant Kelli Sheffer's actions, as described herein, in unlawfully detaining Plaintiff for the duration of the unsanctioned traffic stop, and by further engaging in a pattern of harassment against Plaintiff while acting under color of city authority as a police officer, deprived Plaintiff of his liberty interest and privileges or immunities protected under the Constitution in violation of 42 U.S.C. § 1983. 18 First Am. Compl. at ¶ 27. 19 In support of the motion to dismiss this claim, Sheffer argues 20 that the claim has no merit because Sheffer did not act under color 21 of state law and none of the allegations support a claim of 22 deprivation of a federal or constitutional statutory right. 23 Alternatively, Sheffer argues that she is entitled to qualified 24 immunity. 25 In response, plaintiff affirmatively states that he does not 26 base his section 1983 claim on the independent acts of Sheffer's 27 license plate LEDS search or on her report(s) to the Hillsboro 28 6 - OPINION & ORDER 1 police. 2 the section 1983 claim are those that occurred when Sheffer stopped 3 plaintiff's car. 4 In Pltf's Resp. at pp. 7-8. opposing the motion, Thus, the actions relevant to plaintiff argues that Sheffer 5 unconstitutionally seized him in violation of the Fourth Amendment. 6 To prevail, plaintiff must show that he was deprived of a federal 7 constitutional or statutory right, by a person acting under color 8 of state law. 9 F.3d 935, 941 (9th Cir. 2009) (to state 42 U.S.C. § 1983 claim, 10 plaintiff was required to show that (1) action complained of 11 occurred 12 deprivation of constitutional right or federal statutory right). E.g., Mangum v. Action Collection Serv., Inc., 575 under color of law, and (2) action resulted in a 13 A. 14 "[A] defendant in a § 1983 suit acts under color of state law 15 when he abuses the position given to him by the State. . . . Thus, 16 generally, a public employee acts under color of state law while 17 acting 18 responsibilities pursuant to state law." 19 42, 50 (1988) (citation omitted). 20 Color of State Law in his official capacity or while exercising his West v. Atkins, 487 U.S. It is clear in the instant case that Sheffer was not acting in 21 her official capacity as a Portland police officer or while 22 actually exercising her responsibilities pursuant to state law. 23 However, a police officer may nonetheless act under color of law 24 when he or she "purport[s] or pretend[s] to act in the performance 25 of his . . . official duties." 26 (9th Cir. 2000). McDade v. West, 223 F.3d 1135, 1140 27 Several Ninth Circuit cases have considered the question of 28 whether an off-duty police officer has "purported" or "pretended" 7 - OPINION & ORDER 1 to act in the performance of his or her official duties such that 2 the officer's actions are considered to have been under color of 3 state law. 4 1058 (9th Cir. 1998), an off-duty sheriff's deputy shot and killed 5 plaintiffs' decedent during a barroom brawl. The deputy was not in 6 uniform and was carrying his personal, off-duty revolver. 147 F.3d 7 at 1058. 8 ammunition and the deputy carried his official identification. Id. 9 When he met the plaintiffs' decedent, whom he did not previously 10 know, in the bar, the deputy did not identify himself as a 11 sheriff's deputy, but instead said he owned an air conditioning 12 company. In Huffman v. County of Los Angeles, 147 F.3d 1054, However, his revolver was loaded with department-issued Id. 13 At some point, a conversation between the deputy and the 14 plaintiffs' decedent became heated and aggressive, and the deputy 15 left the bar. 16 ground. 17 and did not issue any commands. 18 plaintiffs' decedent's chest, killing him. The plaintiffs' decedent tackled the deputy to the The deputy never identified himself as a police officer He did, however, fire his gun into 19 On appeal from a jury verdict in favor of the plaintiffs (the 20 victim's parents), the Ninth Circuit explained that "under color of 21 law" means "under pretense of law." 22 Id. at 1058. The court said: 26 A police officer's actions are under pretense of law only if they are in some way related to the performance of his official duties. . . . By contrast, an officer who is pursuing his own goals and is not in any way subject to control by his public employer . . . does not act under color of law unless he purports or pretends to do so, . . . . Officers who engage in confrontations for personal reasons unrelated to law enforcement, and do not purport or pretend to be officers, do not act under color of law. 27 Id. (internal quotations, brackets, and citations omitted; emphasis 28 added). 23 24 25 8 - OPINION & ORDER 1 In Huffman, the Ninth Circuit noted that the deputy was not on 2 duty and was not wearing his uniform. Although the weapon he 3 carried was loaded with ammunition supplied by the sheriff's 4 department, the weapon was his own. 5 himself as a police officer and never issued any commands to the 6 plaintiffs' decedent. As a result, the court concluded that he had 7 not acted under color of state law. The deputy clearly did not act 8 pursuant to his official duties and the facts did not support that 9 he did purported or pretended to act as a police officer. Id. He never identified Id. 10 In Van Ort v. Stanewich, 92 F.3d 831 (9th Cir. 1996), a 11 sheriff's deputy, Stanewich, returned to the Van Orts' residence to 12 rob it after having earlier performed, while on duty, a search for 13 illegal drugs. 14 were filed, but during the search, the officers learned of a safe 15 containing cash, jewelry, and coins. The search revealed no contraband and no charges 16 When Stanewich was off-duty, he returned to the Van Orts' home 17 and entered it, either forcibly or possibly after being recognized 18 by Donald Van Ort. 19 badge and he denied being a police officer. 20 It was undisputed that he did not display his Stanewich attacked and tortured the Van Orts. But, Donald Van 21 Ort's girlfriend escaped and called 911. 22 officer entered the home, ordered the intruder to freeze, and shot 23 him when he failed to comply. 24 officer 25 responded, "[y]es, it's me, I'm wrong." 26 recognized Stanewich The responding police Upon unmasking the intruder, the and exclaimed "Mike!" Stanewich He then died. The Van Orts brought suit, including a section 1983 and other 27 claims. In addressing the color of state law issue, the court 28 easily concluded that Stanewich was pursuing his own goals and was 9 - OPINION & ORDER 1 not in any way subject to control by his public employer. 2 838. 3 argued that Stanewich used his status and privileges as a law 4 enforcement officer to gain entry to their home and to commit his 5 crime and thus, he acted under color of state law. 6 The plaintiffs contended that because Stanewich carried handcuffs 7 and a gun and was perceived by Donald Van Ort to be acting as a 8 police 9 perception, Stanewich's acts were under color of state law. Id. at 10 Id. at Although the plaintiffs did not contest this point, they officer and allowed to enter the home Id. at 838. due to that 839. 11 The court recognized that if Stanewich had purported to or 12 pretended to act under color of law, even if his goals were private 13 and outside the scope of authority, he was acting under color of 14 state law. 15 been acting under color of state law if the Van Orts had been 16 injured during a meeting "related to the provision of services 17 pursuant to Stanewich's County employment," and if Stanewich had 18 used his "'government position to exert influence and physical 19 control' over the Van Orts, particularly if they were 'in awe of 20 government officials.'" 21 Toyed, 944 F.2d 476, 480 (9th Cir. 1991)) (brackets omitted). Id. The court further noted that Stanewich could have Id. (quoting Dang Vang v. Vang Xiong X. 22 The court struggled with an unclear factual record, but 23 ultimately concluded that regardless of which version of the facts 24 it accepted, Stanewich had not acted under color of state law. The 25 court rejected the plaintiffs' argument that Donald Van Ort's 26 recognition of Stanewich as a police officer rendered Stanewich's 27 actions under color of state law: 28 Merely because Donald recognized Stanewich, however, 10 - OPINION & ORDER 1 would not make the attack under color of law. For instance, in Barna v. City of Perth Amboy, 42 F.3d 809 (3d Cir. 1994), a police officer attacked an individual, who was his relation by marriage and, of course, therefore knew the officer personally. The officer used his service revolver and police-issued nightstick, id. at 813, yet the court held there was no action under color of state law. Merely because a police officer is recognized as an individual employed as a police officer does not alone transform private acts into acts under color of state law. 2 3 4 5 6 7 Id. at 839. 8 9 The court pointed out that Donald Van Ort opened the door without knowing who was there. At trial Donald Van Ort testified 10 that he then recognized Stanewich, who quickly put on a mask and 11 pointed a revolver at him. 12 Stanewich did not use his authority to gain entry to the home or to 13 induce Donald Van Ort to open his front door. 14 while wearing his mask, used his gun and physical force to enter 15 the house. 16 that 17 Stanewich's intentions. Donald Id. Van Id. But, the court explained, Rather, Stanewich, Donald Van Ort's cry of "it's a robbery" showed Ort was not under any illusion concerning Id. 18 According to the court, the most Donald Van Ort could contend 19 was that his recognition of Stanewich caused him to hesitate and 20 open the door a little further to find out what Stanewich wanted. 21 Id. 22 that Stanewich exerted physical control using his official status, 23 as was done in Vang. 24 the circumstances in the case before it showed "conjectural, 25 momentary, and de minimis physical control." 26 continued: 27 28 Based on this, the court stated, Donald Van Ort could argue Id. The court stated that unlike in Vang, Id. The court The evidence shows that Donald would have opened the door regardless of whether Stanewich was a police officer, and Stanewich did not rely on Donald's recognition to gain 11 - OPINION & ORDER 1 2 3 4 entry; his gun and brute physical violence proved quite sufficient. Moreover, Stanewich did not purport to act under state law. Quite to the contrary, Stanewich, in a matter of moments, made it clear that his actions were illicit. In short, Stanewich exerted no meaningful, physical control over Donald on the basis of his status as a law enforcement officer. Thus, Stanewich's acts were not under color of law. 5 Id. at 839-40. 6 Finally, in Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980), 7 the plaintiff was a customer in a bank who experienced problems 8 making a withdrawal. The exasperated plaintiff believed he had 9 overextended his coffee break from work and announced to bank staff 10 that he would be back in five minutes to get his money. He left 11 his documents in the bank. As he was heading for the exit, the 12 bank teller employee called out to Timothy Gibson, an off-duty San 13 Francisco police officer working as a teller at the bank, "stop 14 that man," or "stop that guy." Id. at 937. Gibson, whose primary 15 responsibility was bank security, pulled his police identification 16 from his wallet and proceeded to the bank exit, intercepting the 17 plaintiff. Id. 18 Gibson identified himself as a police officer and motioned the 19 plaintiff to a platform in the branch and instructed him to sit 20 down. The plaintiff complied, but at several points inquired about 21 what was going on and protested the detainment. Gibson left his 22 handgun at his teller's station, retrieved it, and then Gibson 23 returned to the plaintiff’s location, holding the gun. Although 24 the parties disputed exactly how the gun was held, it was agreed 25 that it was not aimed or cocked. After a few minutes, Gibson 26 stationed himself, this time with his gun, near the bank exit where 27 he had first intercepted plaintiff. 28 12 - OPINION & ORDER 1 The bank employee then finished checking the plaintiff's 2 accounts and approved the transaction, giving the plaintiff the 3 $1,000 4 approximately fifteen to twenty minutes. he sought to withdraw. The plaintiff was held for 5 The first issue addressed by the Ninth Circuit was whether 6 Gibson acted under color of state law. Gibson's testimony was that 7 he responded to the employee's call to stop the plaintiff as a 8 police officer rather than as a bank teller. 9 established that using off-duty police Other testimony officers as "security 10 tellers" at the bank was part of a police department "secondary 11 hiring" program, and that the police department selected the 12 officers for the program. 13 police identification at the plaintiff and introduced himself as a 14 police officer before instructing the plaintiff to sit down on the 15 platform. 16 conclusion that Gibson was acting under color of state law. Id. Id. Additionally, Gibson flashed his The court concluded that the facts compelled the 17 These cases, Huffman, Van Ort, and Traver, collectively point 18 to several types of factors relevant to the query of when an off- 19 duty police 20 official authority. First are the indicia of authority such as 21 wearing displaying 22 identifying oneself as an officer, issuing commands, or intervening 23 in a dispute. 24 at the time, such as the fact that Gibson was actually hired to 25 perform 26 department. 27 recognition as a police officer does not turn private acts into 28 acts under color of state law, there are situations where an a officer uniform, purports or pretends badge, to act brandishing pursuant a to weapon, Other considerations may include the officer’s role security under Finally, 13 - OPINION & ORDER a as formal arrangement explained in Van with the police Ort, while mere 1 officer may exert such "meaningful, physical control" over another 2 "on the basis of his status as a law enforcement officer" that the 3 officer's actions may amount to official conduct under color of 4 state law. 5 Sheffer argues that walking down the sidewalk in her 6 neighborhood, outside the jurisdiction where she is employed, off- 7 duty, and out-of-uniform, and stepping into the street in front of 8 a neighbor's car with no allegation that she flashed a badge or 9 identified herself as a police officer in any way, and then 10 motioning for her neighbor to stop, are not actions taken under 11 color of state law. 12 Ort, simply because plaintiff knew Sheffer to be a Portland police 13 officer does not transform her actions into actions taken under 14 color of state law. Furthermore, Sheffer argues that, under Van 15 Plaintiff argues that Sheffer acted under pretense of state 16 employment by asserting her state-authorized ability to stop moving 17 vehicles as well as to run license plate searches. 18 p. 6. 19 "cloaked" in the authority of the state that she had the audacity 20 to walk into a public street and stand in front of a moving vehicle 21 and direct plaintiff to pull over. Pltf's Mem. at Plaintiff argues that it was precisely because Sheffer was 22 Although the issue is close, I agree with defendant. 23 defendant notes, she was off-duty, out of uniform, and not in her 24 jurisdiction. 25 weapon. 26 identify herself in any way as a police officer. Additionally, her 27 actions were made in the context of what appears to have been a 28 personal She did not flash a badge. She did not have a She did not issue an oral command to stop. dispute between 14 - OPINION & ORDER plaintiff and As Sheffer. She did not And while 1 plaintiff may have known that Sheffer was a police officer, that 2 alone does not cloak Sheffer's actions with official authority. If 3 that were the test, a police officer's every action would be 4 subject to a federal constitutional claim by any family member, 5 neighbor, friend, etc. based only on the status of being in law 6 enforcement. The caselaw does not support such a standard. 7 The alleged facts which cause a concern regarding Sheffer's 8 possible pretense of authority are the allegations in paragraphs 11 9 and 12 of the First Amended Complaint in which plaintiff asserts 10 that Sheffer walked in front of his car, directed him to pull over, 11 told him during their exchange that she had previously run his 12 license plate, and directed him not to drive through the public 13 street. 14 (walking in front of the car and directing plaintiff to pull over) 15 raise the question of whether Sheffer exerted "meaningful, physical 16 control" over plaintiff "on the basis" of her "status as a law 17 enforcement" 18 plate, 19 enforcement personnel, could suggest that Sheffer was purporting to 20 act officially. First Am. Compl. At ¶¶ 11, 12. officer. because it is Previously expected to running be Some of these facts plaintiff's performed only license by law 21 Nonetheless, when all the circumstances of the encounter are 22 considered, these facts fall short of establishing that Sheffer 23 acted under color of state law because they do not imbue her with 24 the required authority given all of the other relevant facts and 25 the lack of any indicia of official conduct. 26 place, manner, and context of the encounter, the collective facts 27 do not show that Sheffer invoked her police authority in stopping 28 plaintiff. Thus, 15 - OPINION & ORDER I grant defendant's Given the time, motion. Given my 1 disposition, I do not consider defendant's qualified immunity 2 argument. However, because the question is close, I give plaintiff 3 leave to replead the section 1983 claim against Sheffer. 4 II. IIED Claim 5 Sheffer moves to dismiss the IIED claim because the alleged 6 conduct was not "extraordinarily outside the bounds of socially 7 tolerable behavior." 8 To sustain an IIED claim, plaintiff must show that defendant 9 intended to inflict severe emotional distress, that defendant's 10 acts were the cause of plaintiff's severe emotional distress, and 11 that defendant's acts constituted an extraordinary transgression of 12 the bounds of socially tolerable conduct. 13 321 Or. 532, 563, 901 P.2d 841, 849 (1995); see also Babick v. 14 Oregon Arena Corp., 333 Or. 401, 411, 40 P.3d 1059, 1063 (2002) (to 15 state an IIED claim under Oregon law, plaintiff must prove, inter 16 alia, 17 transgression 18 (internal quotation omitted). 19 that defendants' of the actions bounds of McGanty v. Staudenraus, "constituted socially an extraordinary tolerable conduct.") Conduct that is merely "rude, boorish, tyrannical, churlish, 20 and mean" does not support an IIED claim. 21 Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). 22 not provide recovery for the kind of temporary annoyance or injured 23 feelings that can result from friction and rudeness among people in 24 day-to-day conduct causing 25 plaintiff's distress otherwise qualifies for liability." Hall v. 26 The May Dep't Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 27 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d 28 479, 480-81 (1992) (no claim where employer threw a tantrum, life even 16 - OPINION & ORDER when the Patton v. J.C. Penney intentional "[T]he tort does 1 screaming and yelling at his employees, accused them of being liars 2 and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 3 312 Or. 198, 205-06, 818 P.2d 930, 934 (1991) (no claim where 4 employee terminated for refusing to pull down pants). 5 6 7 8 9 In a 2008 case, the Oregon Court of Appeals explained the following parameters of the tort: A trial court plays 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. . . . 10 * * * 11 The classification of conduct as "extreme and outrageous" depends on both the character and degree of the conduct. As explained in the Restatement at § 46 comment d: 12 13 14 15 16 "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." 19 Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances. We consider whether the offensiveness of the conduct exceeds any reasonable limit of social toleration, which is a judgment of social standards rather than of specific occurrences. 20 House v. Hicks, 218 Or. App. 348, 358-60, 179 P.3d 730, 737-39 21 (2008) (internal quotations and citations omitted). 17 18 22 Sheffer argues that the act of stepping in front of a 23 neighbor's car and motioning for it to stop cannot be characterized 24 as "atrocious" or "utterly intolerable in a civilized community." 25 She contends that in its worst light, it might be rude, or even 26 mean or "tyrannical," but it does not go "beyond the farthest 27 reaches of socially tolerable behavior." 28 Deft’s Mem. at p. 10. Sheffer also relies on a 2008 decision by Judge Ashmanskas in 17 - OPINION & ORDER 1 which he held that the defendant police officers' alleged conduct 2 in chasing a female bicyclist during the night without properly 3 identifying themselves and pulling her from her house by her hair 4 was not sufficiently outrageous to support the bicyclist's IIED 5 claim. 6 (D. Or. 2008). 7 officers did not meet the standard for an IIED claim, then her 8 conduct also does not meet the standard. Child v. City of Portland, 547 F. Supp. 2d 1161, 1167-68 Sheffer argues that if the conduct of those 9 Plaintiff notes that the IIED claim is based on Sheffer's 10 cumulative conduct taken as a whole, beginning with the stop and 11 including the LEDS search and her statements regarding plaintiff's 12 purportedly inappropriate interactions with various individuals 13 around 14 situation." Plaintiff cites to Oregon cases which have allowed an 15 IIED based 16 allegedly was to serve an ulterior purpose or to take advantage of 17 an unusually vulnerable individual." 18 App. 721, 727, 14 P.3d 81, 86 (2000); see also Kraemer v. Harding, 19 159 Or. App. 90, 111, 976 P.2d 1160, 1173-74 (1999) (directed 20 verdict properly denied where defendants accused plaintiff of 21 sexually molesting schoolchildren, but lacked reasonable grounds to 22 believe the charges and instead were trying to force plaintiff's 23 reassignment from their child's bus route); Dalby v. Sisters of 24 Providence, 125 Or. App. 149, 154, 865 P.2d 391 (1993) (reversing 25 dismissal of IIED claim where plaintiff alleged the defendant 26 falsely accused the plaintiff of theft and encouraged a police 27 investigation and arrest in retaliation for the employee's report 28 that the defendant failed to comply with legal requirements in the claim neighborhood, on 18 - OPINION & ORDER described false as statements a "possible where the stalking "defamation Checkley v. Boyd, 170 Or. 1 2 keeping drug inventory records). Additionally, citing House, plaintiff contends that the 3 outrageousness of Sheffer’s behavior must be examined in the 4 context of the “special relationship" that exists between a police 5 officer and a citizen. 6 (most important contextual factor guiding court's classification of 7 conduct as extreme and outrageous is whether a special relationship 8 exists between a plaintiff and a defendant). 9 House, 218 Or. App. at 360, 179 P.3d at 737 While I generally agree with plaintiff's analysis of Oregon 10 law, I grant the motion to dismiss the IIED claim. 11 defendant notes, the First Amended Complaint fails to allege that 12 any of Sheffer's statements about plaintiff were false. 13 cases cited by plaintiff are not on point. 14 First, as Thus, the Second, the facts alleged here do not rise to the level of 15 "outrageousness" required to sustain an IIED claim in Oregon. 16 addition to the Watte and Madani cases cited above, Oregon courts 17 have found no IIED claim when a sheriff allegedly mocked plaintiff 18 as mentally ill, accused him of larceny, threatened to imprison him 19 without reason, ridiculed his complaints about neighbors, and 20 caused plaintiff apprehension by unduly delaying him in front of 21 the sheriff's office, Pakos v. Clark, 253 Or. 113, 132, 453 P.2d 22 682, 691 (1969), or when an employer allegedly publicly reprimanded 23 the employee without reason, had him placed under surveillance, and 24 publicly ridiculed his elimination habits. 25 Dairy, 87 Or. App. 215, 26 defendant that the cases establish a very high bar and that the 27 alleged facts do not rise to the level required. 28 In Snyder v. Sunshine 217, 742 P.2d 57, 58 (1987). I agree with Finally, while House notes that a "government officer-citizen" 19 - OPINION & ORDER 1 relationship may be a "special" relationship, none of the cases it 2 cites involve a police officer. 3 relationship 4 "'greater obligation to refrain from subjecting the victim to 5 abuse, 6 encounters among strangers[,]'" id. (quoting McGanty, 321 Or. at 7 547-48, 901 P.2d 841), the problem here is that I have already 8 determined that the facts alleged in the First Amended Complaint do 9 not establish that Sheffer was acting under color of state law and is fright, do not "special" or shock analyze Even if a police officer-citizen such than that would a police be the relationship true officer in between has a arm's-length 10 thus, I Sheffer and 11 plaintiff as one between a police officer and a citizen. 12 note that plaintiff himself alleges that Sheffer ran his license 13 plate for her personal reasons and not part of any assigned duty, 14 underscoring the personal nature of the relationship. 15 Compl. at ¶¶ 18, 19. I further First Am. 16 CONCLUSION 17 Defendant Sheffer's motion to dismiss (#21) is granted. 18 section 1983 claim is dismissed without prejudice. The IIED claims 19 is dismissed with prejudice. 20 amended complaint as to the section 1983 claim, within ten (10) 21 days of the date of this Opinion and Order. 22 The Plaintiff is given leave to file an IT IS SO ORDERED, 23 24 Dated this 5th day of November , 2010. 25 26 /s/ Dennis J. Hubel 27 Dennis James Hubel United States Magistrate Judge 28 20 - OPINION & ORDER
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
