Chasse et al v. Humphreys et al, No. 3:2007cv00189 - Document 734 (D. Or. 2009)
Court Description: Opinion and Order. The Court grants Humphrey's and Nice's summary judgment motion 640 on plaintiffs' equal protection claim. Signed on 9/1/09 by Judge Garr M. King. (ljl)
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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 12 13 14 15 JAMES P. CHASSE, JR., et al., ) ) Plaintiffs, ) ) v. ) ) CHRISTOPHER HUMPHREYS, et al.,) ) Defendants. ) ) No. CV-07-189-HU OPINION & ORDER 16 17 18 19 Tom Steenson STEENSON, SCHUMANN, TEWKSBURTY, CREIGHTON & ROSE, P.C. 500 Yamhill Plaza Building 815 S.W. Second Avenue Portland, Oregon 97204 20 Attorney for Plaintiffs 21 James G. Rice DEPUTY CITY ATTORNEY David A. Landrum DEPUTY CITY ATTORNEY OFFICE OF CITY ATTORNEY 1221 S.W. Fourth Avenue, Room 430 Portland, Oregon 97204 22 23 24 25 Attorneys for City Defendants 26 / / / 27 / / / 28 / / / 1 - OPINION & ORDER 1 2 3 Agnes Sowle COUNTY ATTORNEY Susan M. Dunaway ASSISTANT COUNTY ATTORNEY 501 S.E. Hawthorne Blvd., Suite 500 Portland, Oregon 97214-3587 4 5 6 7 8 9 10 11 12 13 14 15 16 Robert E. Barton COSGRAVE VERGEER KESTER, LLP 805 S.W. Broadway Portland, Oregon 97205 Attorneys for Bret Burton & Multnomah County James P. Martin Kari A. Furnanz HOFFMAN HART & WAGNER, LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Attorneys for Sokunthy Eath & Patricia Gayman James L. Dumas Sheri C. Browning LINDSAY, HART, NEIL, & WEIGLER LLP 1300 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97201 Attorneys for AMR Defendants KING, District Judge: 17 In this civil rights action, plaintiffs bring several claims 18 against various groups of defendants, including the City Defendants 19 (Humphreys, Nice, City of Portland, Tri-Met, Potter & Sizer), the 20 County Defendants (Burton & Multnomah County), the County Nurses 21 (Eath 22 Hergert). 23 which James P. Chasse, Jr. (Chasse), died in police custody. 24 25 & Gayman)1, and the AMR Defendants (AMR, Stucker, The claims arise from a September 17, 2006 incident in All of the parties have moved for summary judgment as to certain claims. As a result of previous orders, there are only 26 27 1 28 and The County Defendants and the County Nurses were dismissed from the case on August 17, 2009. 2 - OPINION & ORDER 1 certain parts of some motions presently requiring resolution. 2 Those 3 plaintiffs' Equal Protection claim; (2) the motion by plaintiffs 4 against the AMR Defendants' affirmative defenses; and (3) the 5 motion by Hergert and Stucker as to some of plaintiffs' claims. 6 This Opinion & Order addresses only the motion by Humphreys and 7 Nice as to the Equal Protection claim. 8 plaintiffs and the AMR Defendants will be addressed separately, at 9 a later date. are: (1) 10 the motion by Humphreys and Nice against The cross-motions between STANDARDS 11 Summary judgment is appropriate if there is no genuine issue 12 of material fact and the moving party is entitled to judgment as a 13 matter of law. 14 initial responsibility of informing the court of the basis of its 15 motion, and identifying those portions of "'pleadings, depositions, 16 answers to interrogatories, and admissions on file, together with 17 the affidavits, if any,' which it believes demonstrate the absence 18 of a genuine issue of material fact." 19 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Fed. R. Civ. P. 56(c). The moving party bears the Celotex Corp. v. Catrett, 20 "If the moving party meets its initial burden of showing 'the 21 absence of a material and triable issue of fact,' 'the burden then 22 moves to the opposing party, who must present significant probative 23 evidence tending to support its claim or defense.'" Intel Corp. v. 24 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 25 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 26 Cir. 1987)). 27 designate facts showing an issue for trial. 28 322-23. The nonmoving party must go beyond the pleadings and 3 - OPINION & ORDER Celotex, 477 U.S. at 1 The substantive law governing a claim determines whether a 2 fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors 3 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 4 to the existence of a genuine issue of fact must be resolved 5 against the moving party. 6 Radio, 7 drawn from the facts in the light most favorable to the nonmoving 8 party. All reasonable doubts as Matsushita Elec. Indus. Co. v. Zenith 475 U.S. 574, 587 (1986). The court should view inferences T.W. Elec. Serv., 809 F.2d at 630-31. 9 If the factual context makes the nonmoving party's claim as to 10 the existence of a material issue of fact implausible, that party 11 must come forward with more persuasive evidence to support his 12 claim than would otherwise be necessary. 13 Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); 14 California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 15 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 16 Id.; In re Agricultural DISCUSSION 17 In their Fifth Claim for Relief, plaintiffs allege that 18 Humphreys and Nice violated Chasse's Fourteenth Amendment rights 19 because 20 discrimination against him, on the basis that he was mentally ill 21 or perceived to be mentally ill. they discriminated against him, or caused the Am. Compl. at ¶ 106. 22 The Equal Protection Clause provides that no state shall "deny 23 to any person within its jurisdiction the equal protection of the 24 laws." 25 noted, this "is essentially a direction that all persons similarly 26 situated should be treated alike." 27 Cleburne 28 Merrifield v. Lockyer, 547 F.3d 978, 992 (9th Cir. 2008) (Equal U.S. Const. amend XIV, § 1. Living Center, 4 - OPINION & ORDER 473 U.S. As the Supreme Court has City of Cleburne, Tex. v. 432, 439 (1985); see also 1 Protection Clause requires that similarly situated persons be 2 treated equally). 3 Because the Equal Protection 5 protection claims is whether a governmental policy or practice 6 contains inappropriate classifications. 7 U.S. 456, 461 (1988) (in equal protection clause analysis, courts 8 look at different types of government classification and apply 9 different levels of scrutiny in evaluating constitutionality of 10 such classifications); see also Martin v. California Dep't of 11 Veterans 12 governmental 13 differently from the non-disabled need only be rationally related 14 to legitimate legislative goals to pass constitutional muster.'") 15 (quoting Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 16 2001)). policy F.3d that 1042, 1049 purposefully issue in against classification-based 560 the protects 4 Affairs, discrimination, Clause many equal See Clark v. Jeter, 486 (9th Cir. treats 2009) the ("'A disabled 17 In the claim at issue in this motion, however, the allegation 18 against Humphreys and Nice does not involve a government policy 19 classification. 20 defendants, that they acted pursuant to an unconstitutional policy 21 or practice. 22 in certain conduct directed at Chasse (for example, choosing to 23 stop him, chasing him, tackling him, failing to send him to the 24 hospital in an ambulance from NW Everett and NW 13th, failing to 25 obtain prompt medical attention for him at the jail, and then 26 driving Chasse to Portland Adventist instead of a closer hospital), 27 because of his mental illness. 28 Plaintiffs do not contend, as to these individual Rather, the claim is that Humphreys and Nice engaged While not labeled as such by the parties, I view this as a 5 - OPINION & ORDER 1 selective enforcement claim. That is, Humphreys and Nice allegedly 2 chose to question Chasse and then engage in the other conduct 3 described above, because he was mentally ill and would not have 4 done so but for his mental illness. 5 selective enforcement or prosecution claims which allege that the 6 police stopped someone because of his or her race. 7 To prevail this protection the show that Humphreys's and Nice's conduct had a discriminatory effect and that 10 they possessed a discriminatory motive. Rosenbaum v. City & County 11 of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007); see also 12 Wayte v. United States, 470 U.S. 598, 608 (1985) (standards for 13 selective 14 discriminatory effect and motivation by a discriminatory purpose); 15 Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 16 523, 17 selective 18 demonstrate that the challenged law enforcement practice 'had a 19 discriminatory effect and that it was motivated by a discriminatory 20 purpose[;]' further noting that this analytical framework has been 21 applied in the 22 allegations of 23 (quoting Wayte, 470 U.S. at 608). (6th Cir. claims 2002) enforcement Sixth of and plaintiffs against 9 prosecution officers, claim individual 24 police equal 8 534 City on This is no different from the require (noting facially other discriminatory a that showing "a neutral circuits police must of both claimant criminal in cases enforcement a alleging laws must involving practices) To establish discriminatory effect, plaintiffs must show that 25 similarly situated individuals were treated differently. 26 States v. Armstrong, 517 U.S. 456, 465 (1996). 27 the instant claim, plaintiffs must show that similarly situated 28 individuals who were not mentally ill, were not subject to the 6 - OPINION & ORDER United In the context of 1 offensive conduct. 2 make that showing, or to create a genuine issue of fact precluding 3 summary 4 analysis. 5 As discussed below, plaintiffs here fail to judgment, on the discriminatory effect prong of the In the City Defendants' memorandum in support of the motion, 6 the City Defendants raise several arguments, including that 7 "plaintiffs have failed to establish an essential element of a 8 prima facie equal protection discrimination case: 9 treated differently than similarly situated citizens who were not That Chasse was 10 living with mental illness." 11 Defendants further argue that there is no evidence that Humphreys 12 and Nice intended to treat Chasse differently than others similarly 13 situated based on his mental illness because Humphreys and Nice had 14 not seen Chasse before September 17, 2006, and did not know that he 15 was mentally ill. 16 City Defts' Mem. at p. 11. The City In response, plaintiffs put forth evidence and argument on the 17 knowledge 18 discriminatory effect element. 19 and intent Nonetheless, in issue. liberally They reading fail to address plaintiffs' the opposition 20 memorandum, I have found three assertions that could possibly 21 suggest an issue of fact about Humphreys's and Nice's, or the 22 Portland 23 however, is insufficient to preclude summary judgment. Police Bureau's, treatment of others. The record, 24 First, at page fifteen, footnote ten of their memorandum, 25 plaintiffs assert that when Humphreys first spotted Chasse at 26 Northwest 18th Avenue, "Nice was attending to a stumbling, falling 27 down, apparently not mentally ill drunk, who he allowed to walk 28 home rather than arrest for being drunk in public or taking him to 7 - OPINION & ORDER 1 a detox center, as Nice could have." 2 Pltfs' Mem. at p. 15 n.10. In support of this assertion, plaintiffs cite to their Concise 3 Statement of Facts (CSF) at ¶¶ 6 and 10.2 4 "At 5:09 p.m. . . ., Humphreys and Burton parked at NW 18th & 5 Everett to assist Nice with an intoxicated person who had stumbled 6 and fallen." 7 statement, plaintiffs cite to "Id., pp. 3-4, PE 7, p 3." 8 9 Because Paragraph 6 asserts that Pltfs' CSF at ¶ 6 (dkt #709). I interpret a cite to "Id." In support of this as a cite Id. to the immediately preceding cited material, I understand the "Id." at the 10 end of paragraph 6 to refer to the previously cited exhibit. In 11 this of 12 plaintiffs' asserted fact in paragraph five. 13 unnecessary burden on the Court. 14 five exhibits plaintiffs rely on for the asserted fact in paragraph 15 six. 16 Plaintiffs' Exhibits 6, 9, 6 (under seal), 49 (under seal), and 50 17 (under seal). 18 none of them support the asserted fact. 19 instance, there are five exhibits cited at the end This creates an I have no idea which of these Thus, I have looked at all five of the exhibits, which are Notably, none of the them contain pages 3-4, and Plaintiffs also cite to Plaintiffs' Exhibit 7. There is no 20 21 22 23 24 25 26 27 28 2 Plaintiffs originally submitted two separate fact statements, one filed under seal (dkt #715), and the other filed for public access (dkt #709). The two filings created unnecessary confusion for the Court. As a result, I asked plaintiffs to merge or "blend" the two documents into one, and to submit a judge's copy to the Court, and provide one to opposing counsel. Unfortunately, the timing of this request and the delivery to opposing counsel was too late for opposing counsel to be assisted by it. Thus, I have relied on the fact statements as originally filed. In the future, I request that plaintiffs simply file one document and if it contains material which should be filed under seal, the entire document should be filed under seal. 8 - OPINION & ORDER 1 Plaintiffs' Exhibit 7 in this summary judgment record. See 2 Steenson Declr. in Opp. to Motion for SJ (dkt #710) at page 2 3 (stating that Plaintiffs' Exhibit 7 is "Not Submitted."). 4 citations for the asserted fact in plaintiffs' paragraph six do not 5 support the assertion. 6 that Nice was with an intoxicated person who had stumbled and 7 fallen. 8 asserted fact does not indicate that the intoxicated person was not 9 mentally ill. The Moreover, the asserted fact states only This alone does not supply an adequate comparator. The Thus, even if there were evidence in this summary 10 judgment record to support the asserted fact, the asserted fact is 11 insufficient evidence of Humphreys's and Nice's different treatment 12 of a similarly situated person. 13 The other citation in plaintiffs' memorandum in support of 14 their 15 differently, is to plaintiffs' paragraph ten. 16 assert, in relevant part, that "[a]fter Nice let the intoxicated 17 person walk home, . . . ." 18 support of this assertion, plaintiffs cite to Plaintiffs' Exhibit 19 4, at pages 4 and 8. 20 assertion that Nice treated the intoxicated person There, plaintiffs Pltfs' CSF at ¶ 10 (dkt #709). In Id. Plaintiffs' Exhibit 4 is an excerpt of a transcript of a 21 statement Humphreys made a few days after the Chasse incident. It 22 is not paginated. 23 is no testimony by Humphreys about Nice having let an intoxicated 24 person walk home. 25 four, there is some testimony about the intoxicated person, but it 26 is crossed out. 27 was contacting a visibly intoxicated subject, that the intoxicated 28 subject Nice was contacting was seated on the stairs, and Nice was On what I count as pages four and eight, there On the transcript's internally labeled page It is still legible, however, and states that Nice 9 - OPINION & ORDER 1 talking to him. 2 person on the page. 3 eight, no statements about the intoxicated person appear. 4 the other citations in support of plaintiffs' assertion that the 5 individual officers treated a similarly situated non-mentally ill 6 person differently, the citation to Plaintiffs' Exhibit 4 does not 7 support the assertion. 8 on the "discriminatory effect" prong of the analysis with the 9 assertion based on allegedly different treatment of an intoxicated, 10 Pltfs' Exh. 4. There is nothing more about the On the transcript's internally labeled page As with Plaintiffs fail to create an issue of fact allegedly non-mentally ill subject. 11 The next possible statement by plaintiffs that could suggest 12 different treatment of similarly situated non-mentally ill persons, 13 is plaintiffs' argument that Humphreys's use of a "spit sock" on 14 Chasse could be viewed by the jury as evidence of discriminatory 15 intent "given that there is no evidence of spit socks being used by 16 the [Portland Police Bureau] PPB under any other circumstances." 17 Pltfs' Mem. at p. 18. 18 Although plaintiffs make this argument in support of the 19 discriminatory motive prong of the selective enforcement analysis, 20 I have considered it as to the discriminatory effect prong as well. 21 However, plaintiffs cite to no evidence in the record supporting 22 this statement and I have found no facts in either of plaintiffs' 23 fact statements (dkt #s 709, 715) mentioning the PPB's use, or non- 24 use, 25 unsupported. of spit socks. Thus, this assertion is completely 26 The third possible statement by plaintiffs that could support 27 their burden on the discriminatory effect issue, is the assertion, 28 again made by plaintiffs on the discriminatory intent part of the 10 - OPINION & ORDER 1 analysis, that Nice instructed the attending paramedic at NW 13th 2 and Everett, to get Humphreys to sign a "transport refusal form" 3 provided by the paramedics, and that this "was the first and only 4 know[n] occasion on which such a form has been signed by an 5 officer." 6 "Id.", and "Id., ¶ 38." 7 plaintiffs' fact statement, the previous non-Id. cite at the 8 conclusion of the preceding paragraph. Plaintiffs' fact statement, 9 at paragraph thirty-eight, asserts that "[n]o PPB officer has 10 signed or been asked to sign an 'Info Form' like Humphreys did." 11 Pltfs' CSF at ¶ 38 (dkt #709). 12 Plaintiffs' Exhibit 59, at pages 56-57. 13 Pltfs' Mem. at p. 19. Id. In support, plaintiffs cite to I assume the "Id." citation refers to In support, plaintiffs cite to Plaintiffs' Exhibit 59 is an excerpt from the deposition 14 testimony of Jose E. Gonzalez. 15 the assertion in the memorandum of the form in question being a 16 "transport refusal form," and the form noted in the fact statement 17 as being an "Info Form," the testimony does not support the 18 assertion. 19 Aside from the discrepancy between Steenson identifies the exhibit as being the excerpts of 20 deposition testimony of PPB Sergeant Jose Gonzalez. Steenson 21 Declr. at p. 5 (Dkt #710). 22 no identifying information about Gonzalez and no information about 23 his duties. 24 that he received a "Contact report" from Humphreys. 25 not refer to it as an "Info Form," or a "transport refusal form." 26 He states that he received from Humphreys an emergency medical 27 service information form in the name of John Doe that was signed 28 with an unknown signature. Pltfs' Exh. 59 at p. 56. The deposition excerpt itself includes The cited excerpt includes a statement by Gonzalez 11 - OPINION & ORDER Gonzalez does Gonzalez gave 1 the form to the detective. Id. 2 seen a form like that before, that he had never signed a form like 3 that before, and that he had not seen an officer sign a form like 4 that before. 5 heard of emergency medical personnel asking or giving such a form 6 to an officer to sign. Id. at pp. 56-57. He testified that he had never He also testified that he had not Id. at p. 57. 7 While this testimony establishes that the alleged use of the 8 form (whichever form it actually is) in this manner is unfamiliar 9 to Gonzalez, this testimony does not support plaintiffs' assertion 10 that no PPB officer has signed or been asked to sign an "Info Form" 11 like Humphreys did. Plaintiffs' assertion simply goes too far. 12 In summary, on the discriminatory effect part of the selective 13 enforcement equal protection analysis, plaintiffs fail to create a 14 question of fact on the issue of whether Humphreys and Nice treated 15 similarly situated, non-mentally ill, individuals differently. 16 Plaintiffs' memorandum omits any argument on the issue and while I 17 have attempted to glean some possible assertions in plaintiffs' 18 memorandum that might be relevant to this issue, the factual record 19 fails to support the assertions. 20 Because of my conclusion on discriminatory effect, I need not 21 address the discriminatory intent prong of the analysis. 22 plaintiffs created an issue of fact regarding what Humphreys or 23 Nice knew of or learned regarding Chasse's mental illness on 24 September 17, 2006, and even if that knowledge and other evidence 25 in 26 Humphreys's or Nice's discriminatory intent or motive, Humphreys 27 and Nice are entitled to summary judgment on the equal protection 28 claim based on plaintiffs' failure to create an issue of fact the record created 12 - OPINION & ORDER a question of fact on the Even if issue of 1 regarding discriminatory effect. 2 3 4 5 CONCLUSION I grant Humphreys's and Nice's summary judgment motion (#640) on plaintiffs' equal protection claim. IT IS SO ORDERED. 6 Dated this 1st day of September , 2009. 7 8 9 /s/ Garr M. King Garr M. King United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 - OPINION & ORDER
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